ATLANTA – In a first of its kind ruling, a federal appeals panel has sided with a prominent Miami defense lawyer who was accused of a crime for giving advice to attorneys for an accused Medellin cocaine cartel kingpin.
The 11th U.S. Circuit of Appeals ruling Monday was welcomed by defense lawyers, who had feared that a successful prosecution of Ben Kuehne would force them to stop taking cases involving defendants whose financial situations are murky. Defense attorneys say it’s a case of first impression, meaning no federal appeals court has previously ruled in the same type of case.
The Atlanta-based panel’s ruling was a blow to the U.S. Justice Department, as it was being closely watched in legal circles as a test of whether federal prosecutors could charge a defense lawyer with money laundering under anti-drug laws that target profits from trafficking.
The ruling found that a lower court judge was ’eminently correct’ to dismiss the unprecedented indictment against Kuehne and two others on money laundering charges under the federal statute. It concluded that Kuehne was protected by an exemption in federal money-laundering statutes carved out by Congress for defense attorneys in 1988.
‘This is a huge win not just for Ben Kuehne but for criminal defense lawyers,’ said David O. Markus, a Miami attorney who helped write a friend of the court brief on Kuehne’s behalf for the National Association of Criminal Defense Lawyers.
‘It sends the message to the government that criminal defendants are entitled to representation and criminal defense lawyers are entitled to represent clients without having this dark cloud hanging over their heads.’
Kuehne is accused of writing opinion letters that Colombian drug kingpin Fabio Ochoa had enough money free from the taint of drug trafficking to pay some $5.2 million in legal fees. He was paid about $200,000 by Miami attorney Roy Black’s law firm and others involved in Ochoa’s defense.
A portion of the funds were traced to a businessman named Hernando Saravia, who transferred some of the purportedly legitimate cash from Ochoa to Black.
But Kuehne didn’t know that Saravia had been cooperating with federal prosecutors and that some of the money was from illegal drug proceeds being handled by undercover U.S. agents.
The Justice Department declined to comment, but it had said in a statement last year that it ‘approaches with great care’ any possible prosecution of a defense lawyer. In this case, though, it said prosecutors were confident they had clear evidence of wrongdoing against Kuehne.
‘Attorneys are not immune from prosecution for money laundering simply on the basis that they represent criminal defendants,’ the statement said.
Kuehne had pleaded not guilty and faced maximum prison sentences totaling 50 years on three separate charges. Kuehne also could have been forced to forfeit the $5.2 million paid to Black and others in legal fees, and he could have lost his law license.
He still faces a separate money laundering charge, but defense attorneys say it will be harder to prosecute because it carries a higher standard of proof.
‘This is an important issue and we’re very gratified by the decision of the court of appeals,’ said Kuehne’s attorney, John Nields. He declined to discuss his next moves in the case.
Also charged with Kuehne in the original case are a Colombian lawyer, Oscar Saldarriaga, and accountant Gloria Flores Velez. They also have pleaded not guilty.
