High-profile Miami attorney Ben Kuehne has thrown two haymakers at the government's case charging he laundered drug proceeds while vetting $5.3 million in defense fees for convicted trafficker Fabio Ochoa Vasquez. In two pleadings, Kuehne's legal team accuses the government of manufacturing the complaint by ignoring a 1988 exception that Congress carved out to protect defense attorneys.
Another motion argues for dismissal of an obstruction of justice charge, claiming it is not sufficiently backed up with specific actions by Kuehne.
A motion for a bill of particulars filed March 10 puts it on the table: The government is trying to chill the defense bar and violate the Sixth Amendment right to counsel of choice.
"If lawyers are at risk of criminal prosecution and jail sentences whenever it later turns out that their fees were tainted, lawyers will be deterred from representing even defendants who have clean funds," the motion said.
Steve Chaykin, a former federal prosecutor who co-chairs Akerman Senterfitt's white-collar crime division in Miami, agreed: "This is clearly designed to prevent those under investigation from obtaining competent counsel of their choice."
The case against Kuehne, accountant Gloria Flores Velez and Colombian lawyer Oscar Saldarriaga Ochoa is scheduled for a status conference today in front of U.S. District Judge Marcia Cooke. The government has yet to respond to Kuehne's motions but may indicate its stand in court.
Kuehne represented Vice President Al Gore in the 2000 presidential election challenge and other high-profile clients, many on a pro bono basis. He also served as a federal prosecutor and an assistant attorney general in Florida.
He was paid about $200,000 for his work on the Ochoa case, checking for illicit funds in the money bound for lead defense attorney Roy Black of Black Srebnick Kornspan & Stumpf.
Kuehne concluded the money was clean, but prosecutors said they watched some of the funds pass through monitored transactions tied to launderers.
Kuehne's legal team is led by Miami attorney Jane Moscowitz of Moscowitz and Moscowitz and Washington attorney John Nields of the Howrey law firm.
The team has decided to make no comments outside court on the case.
The defense motion states anti-money laundering laws do not fit the case because Kuehne was not trying to conceal or hide anything from the court.
His team wants Cooke to order prosecutors to state how money transfers from Kuehne's trust account to Black were done "to conceal or disguise the source of funds, or indeed anything else."
The defense claims prosecutors have willfully ignored a 1984 law amended in 1988 to protect attorneys trying to sort bad money from good. "It is not that Congress thought it proper for a lawyer knowingly to receive proceeds of crime as payment for fees," the pleading said. "The problem is that there is often uncertainty whether fees are clean."
The government is "openly hostile" to the exemption, Moscowitz and Nields wrote. In what appears to be a preview of the trial defense, the pleading notes the 11th U.S. Circuit Court of Appeals has found that the government must establish laundered "funds are more concealed after the transaction is completed than before."
Kuehne, along with his co-defendants, undertook the task of vetting money attributed to the Ochoa family's horse and cattle holdings. He reported back to Black, who defended Ochoa before U.S. District Judge K. Michael Moore.
"Kuehne's role in vetting the fees was known to the court handling the Ochoa case and to the prosecutors who were responsible for it," the pleading reads. "It is simply not apparent in what manner this movement of funds concealed anything."
Chaykin sees trouble ahead for prosecutors.
"They are going to have a very difficult time," he said. "He had been engaged to do this and had a real target on his back, a real bull's eye, because of the controversial nature of his client as well as the defense attorney."
Miami criminal defense attorney Milton Hirsch adds: "What we have here are two highly regarded attorneys in Roy and Ben who went the extra mile to make sure that however bad defendants may have been, the money was good, and as a reward for their extra efforts Ben is indicted."
He notes the government is seeking to forfeit $5 million from the defendants even though they were paid considerably less and the money went to Black.
"I'm very troubled by this prosecution," Hirsch said. "This prosecution boldly goes where none has gone before." The indictment unsealed Feb. 6 alleges Kuehne and his co-defendants "knew that the funds used by Ochoa consisted of or were at least commingled with proceeds of drug trafficking." Initially, the co-defendants were charged with four counts of money laundering, one count of money laundering conspiracy and one count of obstruction of justice.
Two counts of money laundering have been dismissed against Saldarriaga and Flores because the statute of limitations ran out on the indictment issued under seal in 2005. Kuehne failed to have those two charges thrown out because he was in active negotiations with the government before a superseding indictment was unsealed last month, sources say.
The key prosecution witness may be Hernando Saravia, who was under indictment for money laundering in New York.
Kuehne provided an opinion letter that provided correspondence from Saravia stating he owned flower and jewelry businesses and sold a Miami home to help pay Ochoa's legal fees, prosecutors said.
Investigators said the letter was part of a sting operation. Saravia never drafted the letter, and the businesses were undercover fronts for U.S. law enforcement. About $1 million in drug money from five federal undercover operations was tracked through Kuehne's trust account and onto Black, according to the indictment.
The lead prosecutor, Assistant U.S. Attorney John Sellers in Washington, could not be reached for comment Monday. The U.S. Attorney's Office in Miami had declared a conflict in the case, sending it to Washington.
Chaykin said funneling dirty money through Saravia during the vetting process is "treacherously close to invading the defense camp." The government is going to have to show Kuehne knew the money was dirty to win convictions.
The former prosecutor said forcing prosecutors to provide a bill of particulars would ensure that the government doesn't try to pursue other avenues to prove its case. He said it's not surprising the obstruction of justice charge is vague because grand jury indictments allow prosecutors room to maneuver. The count alleges only that the defendants tried to influence, obstruct and impede the grand jury investigation. It does not state whether this was by influencing witnesses, influencing a grand juror or through false testimony, according to the dismissal motion.
"It fails completely to inform the defendants of the nature and cause of the accusation against them as expressly required by the Sixth Amendment," the motion reads.
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