Court hears appeal in case of Fla. lawyer accused of receiving $5M in drug-tainted legal fees

Fla. court hears alleged tainted legal fees case

MIAMI — In a case watched closely by defense attorneys nationwide, federal prosecutors urged a skeptical appeals court panel on Wednesday to reinstate a money-laundering conspiracy charge against a prominent lawyer accused of illegally accepting more than $5 million in tainted legal fees from a Colombian cocaine baron.

Vijay Shanker, a Justice Department appellate lawyer, told the panel that a Miami district court judge wrongly dismissed the key count against attorney Ben Kuehne, a former counsel to Vice President Al Gore during the 2000 presidential election recount.

The lower court judge, U.S. District Judge Marcia Cooke, ruled that Congress enacted an exemption prohibiting lawyers from being criminally prosecuted for accepting fees — even if the money is dirty. Cooke determined that the ability to pay legal fees goes to the heart of a defendant’s constitutional right to an attorney.

But Shanker insisted the right isn’t absolute, noting that Kuehne is accused of preparing false documents and using Colombia’s black market peso exchange to conceal the $5.2 million in fees paid by now-imprisoned drug lord Fabio Ochoa, once a leader of Colombia’s Medellin cartel.

“You’re entitled to a lawyer under certain parameters,” Shanker said. “We bring these prosecutions rarely, and we bring them when we need to.”

Shanker was questioned sharply by the three judges, who said the law passed by Congress appears to clearly exempt lawyers from criminal prosecution involving legal fees. Federal law does allow for tainted legal fees to be subject to forfeit.

“They (lawyers) may be prosecuted for something here, but it’s not going to be money laundering,” said Circuit Judge Frank M. Hull.

Kuehne’s trial is effectively on hold until the appeals court rules, which could take months. He faces up to 50 years in prison if convicted of the money-laundering conspiracy charge, obstruction of justice and another money laundering-related charge.

Kuehne attorney John Nields said the case has rattled defense lawyers around the country. The National Association of Criminal Defense Lawyers contend some people charged with crimes would find it nearly impossible to hire a lawyer if the conspiracy charge is reinstated.

“We think it would be very bad for our criminal justice system,” Nields said. “It’s one thing to find a lawyer willing to risk his fee. It’s another thing to find a lawyer willing to risk his liberty.”

Kuehne did not actually represent Ochoa, who was extradited from Colombia in 2001, convicted of drug trafficking and is now serving a 30-year prison sentence. He was hired to investigate whether Ochoa had enough clean money to pay for his defense.

Kuehne did so by writing a series of opinion letters in 2002 and 2003 that prosecutors contend are based on false documentation.