Recently we have been following several federal criminal cases involving the payment of fees to lawyers. Another one of those cases was finally laid to rest the day before Thanksgiving, when the United States moved to dismiss its indictment in U.S. v. Velez, involving Ben Kuehne, a highly regarded Florida criminal defense attorney. Mr. Kuehne has extended an invitation “far and wide” to a party tomorrow, Thursday, December 10, 2009, in Miami, Florida to help him celebrate the dismissal.
To review, the following cases dealing with fees to criminal defense attorneys have been decided in the past few months:
In U.S. v. Kaley, a wife and husband were each indicted with conspiracy, transportation of stolen property, obstruction of justice, and money laundering. The indictment included a criminal forfeiture count and the government obtained an injunction against the Kaleys encumbering the property listed in the forfeiture count. This August, the Eleventh Circuit held that under this circuit’s precedent, “a defendant whose assets are restrained pursuant to a criminal forfeiture charge in an indictment, rendering him unable to afford counsel of choice, is entitled to a pre-trial hearing only if the balancing test enunciated in Barker v. Wingo is satisfied.” The Court further held that the District Court had not correctly applied the balancing test in the Kaleys’ case and reversed, requiring the district court to re-weigh the factors and determine whether the Kaleys may have a pre-trial hearing on the matter. We discussed the case in this post.
Just last month, lawyer J. Mark Shelnutt was acquitted of money laundering charges associated with fees paid to him by a criminal defense client. Shelnutt was prosecuted under 18 U.S.C. § 1956, which required federal prosecutors to attempt to prove that ill-gotten gains were used for certain prohibited purposes, including facilitating underlying criminal activity, tax evasion, or evading money laundering statutes. The jury found that the government failed to prove its case. We discussed the verdict in this post.
U.S. v. Velez, the Ben Kuehne case, revolved around payment of legal fees to a criminal defense team. The team hired Kuehne to investigate the source of the money and verify that it was not criminally derived property. Kuehne’s trust account received wire transfers and Kuehne drafted opinion letters advising the team that he had analyzed the sources of all funds, then transferred the money to the criminal defense team. Count One of the indictment charged the defendants with money laundering in violation of 18 U.S.C. § 1957, despite § 1957(f)(1), which provides an exception for “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” Because the funds were used to pay the criminal defense team, the district court judge dismissed Count One. In October, the Eleventh Circuit held that “[t]he district court was eminently correct in holding that Defendants are not subject to criminal prosecution under § 1957(a).” While criminally derived proceeds paid to defense attorneys are subject to forfeiture, they may not be the basis for a criminal prosecution. Our previous posts regarding Ben Kuehne’s case are available here and here. For more information on the case, the Southern District of Florida Blog has followed it closely.
This Monday, the Wall Street Journal Law Blog shared this invitation with its readers. Mr. Kuehne confirmed that he wished to extend the invitation “Far and Wide.” He added, “I owe the community my deepest gratitude, and hope to have a respectable turnout.”