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On March 20, defense lawyer Donald Ferguson stood before U.S. District Judge Shelby Highsmith in Miami’s federal courthouse. He was there that day to execute a plea agreement in a money laundering case. His own. It was just past 9 a.m. when he entered the courtroom clad not in the natty suit of a high-priced South Florida defense lawyer, but the orange-brown khaki garb of a federal prisoner. Represented by Neal Sonnett, dean of the Miami criminal defense bar, the 54-year-old Ferguson pleaded guilty to one count of money laundering. At one time, he was a federal prosecutor in the same office as Asst. U.S. Attorney Paul E. Pelletier, the prosecutor in charge of his case. But like so many other federal prosecutors in the 1980s and 1990s, Ferguson had traded in his prosecutor’s badge to make money doing criminal defense work, which, in the world of South Florida law, regularly means drug cases. Already serving time for a previous money laundering conviction, Ferguson’s recent case has become the focal point of a conflict between defense lawyers who feel the U.S. Department of Justice is targeting them for prosecution and prosecutors who say defense lawyers shouldn’t expect to break the law and get away with it. Ferguson’s first plea was part of the larger prosecution of former Justice Department official and defense lawyer Michael Abbell and Miami lawyer William Moran. But unlike those cases, Sonnett says, Ferguson’s case represents the first time a lawyer has been convicted of money laundering for simply accepting fees that originated in narcotics trafficking. Sonnett has decried the indictment from before its filing in early 1999 as a misuse of federal money laundering statutes. “It is an important and very dangerous step by the Justice Department that could lead to a substantial chilling effect in the criminal defense bar,” warns Sonnett, former head of the American Bar Association Criminal Justice Section and the National Association of Criminal Defense Lawyers (NACDL). “A lawyer may very well take a case knowing there’s a threat of fee forfeiture, but few lawyers will take a case if they think there is a threat of their career ending and a prison sentence.” At a recent gathering in San Francisco of the nation’s pre-eminent white-collar criminal defense lawyers, Ferguson’s case was widely viewed as the thin end of a wedge the federal government intends to drive between defense lawyers and their clients in drug prosecutions. “In South Florida, the water is different,” says criminal defense lawyer Bruce M. Lyons. “We do indict lawyers for receiving these funds.” But to federal prosecutors like Pelletier, Sonnett’s opponent in U.S. v. Ferguson, No. 99-116, Ferguson’s conviction is no different from that of anyone else who breaks the law. “Nothing can be further from the truth that anyone is going after anyone,” he says. “Once again, if they go over the line … if they commit a crime, why shouldn’t they be prosecuted?” “We’re [not prosecuting lawyers] who say they just want to get paid,” says another, more frustrated, federal prosecutor who declined to be identified. Defense lawyers like Ferguson who are targeted for prosecution, the prosecutor says, are involved in the drug enterprise and are not merely the unwitting recipients of tainted funds. PRACTICE TO PRISON “In the ’80s, dope was coming in from everywhere, there was no guidelines, there was no nothing,” explained another veteran federal drug prosecutor. “They would arrest 12 guys on a boat. Mr. Big down in Columbia would call his one lawyer up here and give him $100,000 to represent all of them. The lawyers were awash in cash.” But then Congress passed the Sentencing Reform Act of 1984 and the Money Laundering Act of 1986. The latter proscribes “monetary transactions” involving “criminally derived property,” though a 1987 amendment excluded transactions necessary to preserve a defendant’s right to counsel under the Sixth Amendment. Though lawyers were occasionally targeted for becoming involved in a client’s criminal conduct, Florida defense lawyers say the dam truly broke in 1995, when federal prosecutors indicted dozens of defendants, including a group of six lawyers that included Ferguson, on charges that they had helped launder more than $1 billion in drug money for Columbia’s Cali drug cartel. Ferguson had received $75,000 to deliver to the wife of a cartel operative. In 1996, Ferguson, and three other lawyers, pleaded guilty. The other two, Abbell and Moran, were convicted at trial. In 1997, as he awaited sentencing, Ferguson again came to the attention of the Justice Department as part of a decade-long investigation of Salvador Magluta, a reputed Florida drug smuggler. Prosecutors alleged that Ferguson accepted more than $500,000 in indirect payments of drug money from Magluta to pay for the representation of an associate, Ben Kramer, in a 1993 murder case and then tried to hide the source. More than $2 billion in funds connected to Magluta were under a “freeze order” at the time, say prosecutors, as a result of Magluta’s 1991 indictment for allegedly running a massive drug-distribution organization. At the time, Sonnett declared that this was the first time an attorney was being prosecuted for simply accepting legal fees. But in his March 20 plea agreement, Ferguson, who spent two years in a prison camp in Pensacola, Fla., as a result of his first plea agreement, acknowledged that he knew that payments he received to represent Kramer were in fact the proceeds of drug sales. As part of the deal, Ferguson agreed to assist the government in obtaining funds for forfeiture and in any other prosecutions or proceedings where his assistance or testimony is needed. He is scheduled to be sentenced on June 28. He could receive as much as 10 years under the sentencing guidelines, but he is likely to get less than half that, prosecutors say. Sonnett has said that Miami prosecutors are out to get lawyers like his client, or at least to get their fees forfeited, a charge that Barry Sabin, first assistant to Acting U.S. Attorney Guy Lewis of the Southern District of Florida, vehemently denies. “We are not on a crusade to prosecute criminal defense attorneys,” Sabin says. “Scrutiny into the activities of the Magluta organization led investigators to Ferguson’s significant unlawful conduct … faced with this compelling evidence of attorney illegality, the government must act.” But Gerard E. McDowell, former head of the money laundering section of the U.S. Department of Justice’s Criminal Division, confirmed at a recent ABA gathering in San Francisco that “there has been an effort to focus on money laundering.” Alexandria, Va., criminal defense lawyer Marvin D. Miller disagrees with Sabin. In 1999, Miller, chairman of the NACDL Governmental and Police Misconduct Committee, conducted a survey of the federal districts, trying to determine which U.S. attorneys prosecuted the most defense attorneys. “Florida had the highest incidence of lawyer prosecution,” Miller says. A close second is the Southern District of New York. “Basically it’s Miami and Manhattan.” WORRIED LAWYERS At the ABA’s 15th annual White Collar Crime Institute meeting in San Francisco on March 8, a group of Florida lawyers spoke in grim tones as they discussed the prosecution of Ferguson, one of their own. That morning, more than 600 of his brethren sat in rapt attention in the grand ballroom of the Westin St. Francis hotel as a group of attorneys recounted their prosecutions at the hands of the federal government. Perhaps the best known drug-related attorney prosecution was that of San Francisco criminal defense lawyer Patrick Hallinan, who warns that such prosecutions will make it difficult for defendants in drug cases to retain counsel. “A lawyer who gets involved in these cases is very vulnerable,” says Hallinan. In 1995, Hallinan was charged with conspiracy and money laundering for his alleged role in a $140 million marijuana smuggling enterprise run by client and alleged drug kingpin Ciro Mancuso. He was eventually acquitted. “I violated my own rule,” says Hallinan. “Never ever socialize or fraternize or have anything to do outside of a strictly professional relationship with any of your clients. If you socialize with the client, you give the client the opportunity to make up stories about what went on.” Hallinan’s lawyer, John Keker of San Francisco’s Keker & Van Nest, advised lawyers representing other lawyers to bring an expert — a lawyer — to explain the legal system and the role of the criminal defense attorney in it because most jurors don’t understand. Michael Rosen, a criminal defense lawyer and adjunct professor at the University of Miami School of Law, noted that prosecutors use federal forfeiture laws to reach into every realm of criminal defense work — especially when they are going after a lawyer’s fees. He urges defense lawyers to make more than a cursory inquiry into the source of their client’s funds. Gary Naftalis of New York warned lawyers who represent other lawyers that “it’s a difficult piece of business. The government has a lot riding on these cases … [and] will push very hard to win.” But one federal prosecutor in Miami says Naftalis’ broad brush is unfair to the government. “We treat them with all the kid gloves and all the levels of review that they want.”

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