Monday, October 26, 2009

Criminal Defense Brethren: The 11th Circuit Says "No" On The Ben Kuehne Case

If he hasn't already, my good friend David O. Markus will certainly blog the result in the Ben Kuehne case handed down today in the 11th Circuit. An opinion from a case of first impression in the 11th circuit on the issue of the exemption of section 1957 (f)(1) for criminal defense fees.

If you are a criminal defense lawyer and do not know about this case, well, you're not really a criminal defense lawyer. Maybe you just play one on the internet.

The court found the "plain meaning of the exemption set forth in §1957(f)(1), when considered in its context, is that transactions involving criminally derived proceeds are exempt from the prohibitions of § 1957(a) when they are for the purpose of securing legal representation to which an accused is entitled under the Sixth Amendment. Accordingly, the exemption is limited to attorneys’ fees paid for representation guaranteed by the Sixth Amendment in a criminal proceeding and does not extend to attorneys’ fees paid for other purposes."

My favorite part of any criminal appellate opinion these days is references like this: "See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense)."

As if the system needs to be reminded.

The Government argued in this appeal "that the exemption in §1957(f)(1) has been nullified or vitiated because, shortly after the provision was enacted, the Supreme Court held in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) that the Sixth Amendment right to counsel does not protect the right of a criminal defendant to use criminally derived proceeds for legal fees."

But the 11th Circuit had to remind the Gubmint that the cited case: "addresses a different statute governing the civil forfeiture of criminally derived proceeds," and "has no bearing on § 1957(f)(1).

Oh, ok.

The court further reminded the Government that the cited case: "held simply that Congress may require the forfeiture of criminally derived proceeds, even if those proceeds are used for legal representation, without running afoul of the Sixth Amendment right to counsel.

And the death knell to the Government's attempt to jail this prominent member of the Bar: "It would therefore make little sense—and would be entirely superfluous—to read § 1957(f)(1) as an exemption from criminal penalties for non-tainted proceeds spent on legal representation, as those funds can always be used for any legal purpose. We do not believe Congress intended such an absurd result, which nullifies the provision and divorces it from its statutory context, thereby violating basic canons of statutory construction.

The 11th Circuit spoke in plainly, referring to the Government's argument by describing it as a "rocky premise," and an "implausible interpretation," of Congress’s belief at the time it drafted § 1957(f)(1).

The ruling is not just an affirmation, but states that the district court was "eminently correct in holding that Defendants are not subject to criminal prosecution under § 1957(a), because the plain language of §1957(f)(1) clearly exempts criminally derived proceeds used to secure legal representation to which an accused is entitled under the Sixth Amendment."

While I think that ends things for Ben on this topic in this prosecution, I'm not at all convinced the Government is done with us.

Not at all.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit

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