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In some ways, Ben Kuehne took one for the team.

When federal prosecutors dropped all charges Wednesday against the prominent Miami attorney and two co-defendants, the Justice Department left in its tracks a string of courtroom failures.

"I don't wish this issue on anybody, and I don't expect it's going to reoccur, but no doubt that an important rule of law was set in my case," Kuehne said.

The decision followed a defeat Oct. 26 when the 11th U.S. Circuit Court of Appeals ruled criminal defense attorneys are protected by federal law from being prosecuted for accepting ill-gotten gains as fees from clients.

Kuehne was hired by prominent Miami attorney Roy Black to vet legal fees for Colombian drug kingpin Fabio Ochoa. Prosecutors charged Kuehne with money laundering, saying he knowingly used Ochoa family drug profits to pay the legal bill.

The National Association of Criminal Defense Lawyers claimed Kuehne's prosecution was the government's attempt to chill the Sixth Amendment guarantee that defendants have the right to counsel of their own choosing and imperil the representation of controversial defendants like drug traffickers.

The indictment brought during the Bush administration also carried political overtones since Kuehne was an active part of Vice President Al Gore's recount maneuvering after the 2000 presidential election.

Kuehne said his case leaves a legacy that will protect his colleagues.

"There is no doubt my case is the most telling reaffirmation of the vital importance of the Sixth Amendment's right to counsel and should stand as a clear monument of the role of criminal defense lawyers," he said.

Kuehne was wearing a red, white and blue bow tie when he got the surprise news through a circuitous route in a motion filed in the 11th Circuit in Atlanta, where prosecutors had been challenging the dismissal of charges against co-defendant Gloria Flores Velez. A subsequent filing went to U.S. District Judge Marcia Cooke in Miami.

In notifying the appellate court it was dropping its Velez appeal, the government also said it was dismissing the entire case against Kuehne, Velez and a third co-defendant, Colombian attorney Oscar Saldarriaga.

Velez is a Colombian accountant who assisted Kuehne in vetting $5.2 million in legal fees from Ochoa for Black. Cooke dismissed charges against Velez on speedy trial grounds because her 2005 indictment was sealed until after Kuehne was added to the case in February 2008.

South Miami attorney Henry P. Bell, who represented Velez, said that his client's long nightmare was finally coming to an end. "She would always ask me when this was going to end, and I would never have an answer," he said.

The government charged Kuehne knew the money to pay Ochoa's lawyers came from drug trafficking and tried to hide it by using a parallel money exchange dealing in Colombian pesos.

The defense fought the case count by count. Almost from the start, the prosecution encountered roadblocks.

The government changed prosecutors and dropped an obstruction of justice charge. Cooke then dismissed the case against Velez and a conspiracy count against Kuehne. The Justice Department challenged that ruling but lost on appeal. It also was in danger of losing a witness on the so-called black market peso exchange.

COURTROOM FAILURES

The dismissal followed months of setbacks in the courtroom for federal prosecutors. The final decision reached high into the Justice Department, which did not respond to a phone call for comment by deadline. The 11th Circuit notice carried the name of Assistant Attorney General Lanny Breuer, head of the department's criminal division. Washington prosecutors filed the case because the Miami U.S. Attorney's Office had a conflict as Ochoa's prosecutor.

The dismissal comes after a jury acquitted a Columbus, Ga., attorney on Nov. 18 on money laundering charges. The federal judge in that case referenced in his jury instructions the decision by the 11th Circuit ejecting money-laundering charges against Kuehne.

The case has been watched closely by criminal defense attorneys across the nation. They argued the case against Kuehne was an effort to chill high-profile defendants from hiring the counsel of their choice.

Richard Strafer, one of Saldarriaga's attorneys, said defense lawyers still risk forfeiting fees derived from crime, but the 11th Circuit decision reversing the money-laundering prosecution of lawyers is "a great protection on the criminal side to deter unwarranted investigations like this."

Kuehne's legal team, John Nields and Jason Raofield from the Howrey firm in Washington and Miami litigator Jane Moscowitz of Moscowitz & Moscowitz in Miami, were implicit in thanking President Obama's Justice Department for reversing course in a case generated by the previous administration.

"It means that we have a Justice Department whose overriding goal is to do the right thing," Nields said.

Moscowitz added: "We are ecstatic, euphoric. We knew Ben was innocent. We believed he would be acquitted at trial. And we are grateful to the Justice Department for its decision."

Miami criminal defense attorney Neal Sonnett, a former president of the National Association of Criminal Defense Lawyers, said the department obviously saw it had a dog of a case on its hands.

"Cooler and smarter heads in the new administration took a look at this case and decided it should never have been brought," he said.

The main target in the Kuehne case was the criminal defense bar, Sonnett said.

"At least it reaffirms the Justice Department believes in the advocacy system of justice and believes in due process for lawyers," he said. "The Bush administration thought defense lawyers were just a thorn in its side."

The Justice Department was trying to derail the 1988 protection passed by Congress prohibiting the criminal prosecution of defense attorneys under the federal money laundering statutes. Lawmakers felt lawyers wouldn't risk taking on high-profile defendants without the protection.

Attorney Joe DeMaria, a former federal prosecutor with Tew Cardenas in Miami, said Kuehne's misguided prosecution was an attempt to force defendants to use public defenders rather than private lawyers with broader resources.

"The government was trying to get an unfair advantage over defense lawyers," he said. "They want to control both sides of the system."

HIGH-LEVEL SUPPORT

Kuehne said he received calls of congratulations from friends, colleagues and community leaders including U.S. Reps. Kendrick Meek and Alcee Hastings, "who were unabashed supporters of mine from Day One."

He maintained his law practice since he was indicted and did not acknowledge any professional consequences from his indictment.

"I continue to be engaged to do internal investigations for clients, and it's something I'm good at," Kuehne said.

A veteran of pro bono work, he recently headed a legal team that won exoneration for Barney Brown, who spent 39 years in prison after he was wrongfully convicted of rape.

In contrast to the buttoned-down Kuehne, law partner Susan Dmitrovsky wears her heart on her sleeve.

"It's a wonderful day. It's a good crying day. It's a good crying," she said. "This is kind of like having extra whipped cream and cherries on a banana split."

When Kuehne learned the news, he called his wife, then called his staff into a conference room connected to the firm's other two offices.

"We had no idea," Dmitrovsky said. "I think the whole office feels like we got an acquittal today."

 

 

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