Criminal Defense Lawyer Blog

Huge update on the Ben Kuehne indictment. Yesterday Judge Cooke heard Mr. Kuehne’s Motion to Dismiss.

The issue is whether can be prosecuted under 1957 for receiving legal fees in light of 1957(f)(1)’s exception for “transaction[s] necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution.”

The Government’s argument is that 1957 indeed does not apply.

The defense bar argues otherwise. The Govnerment’s argue attacks criminal defendants and the lawyers who represent them.

Tell me if you think President Bush did the right thing.

A man wants to kill coyotes. He plants poison in hamburger meat and leaves it out for the coyotes to eat. Unexpectedly, a couple of bald eagles see the tainted meat and eat it. Subsequently, three bald eagles die. The man is charged with unlawfully killing the bald eagles, and received two years probation plus a $10,000 fine.
Bush pardoned the sentence.

Contrary to a lot of the Bush haters out there (I’m one of them), I think this was the right move. This man intended no harm, and wasn’t trying to make a statement by killing our national bird. It was completely inadvertent. No reason why he should have this crime permanently attached to his name.

I was very impressed with the fundraiser last night for Benedict P. Kuehne. Through the eyes of a young criminal defense lawyer, it was a “who’s who” of criminal defense lawyers in Miami.

If you don’t know, Mr. Kuehne was indicted earlier this year on charges of Money Laudering. Many people in the community (me included) believe that the DOJ overreached when it indicted Mr. Kuehne. Or, more to the point, as Rumpole’s blog reports today: Ben Kuehne Had No Motive Or Financial Incentive To Launder Money For Ochoa’s Attorney’s And Exclusive Beneficiaries, Especially Roy Black.

Last night there was talk - or gossip, if you will - that the new administration (and new AG) would possibly drop this case. Either way, I stand behind Mr. Kuuhne either way. The turnout last night was remarkable; 187 people RSVP’d and who knows how many more showed up unannounced. I was very happy to be part of this.

A Texas judge has set a Friday arraignment for Vice President Dick Cheney, former U.S. Attorney General Alberto Gonzales and others named in indictments accusing them of responsibility for prisoner abuse in a federal detention center.

Cheney, Gonzales and the others will not be arrested, and do not need to appear in person at the arraignment, Presiding Judge Manuel Banales said.

In the latest bizarre development in the case, the lame-duck prosecutor who won the indictments was a no-show in court Wednesday. The judge ordered Texas Rangers to go to Willacy County District Attorney Juan Guerra’s house, check on his well-being and order him to court on Friday.

Story here

President-elect Obama has decided to tap Eric Holder as his attorney general, putting the veteran Washington lawyer in place to become the first African-American to head the Justice Department, according to two legal sources close to the presidential transition.

Holder, who served as deputy attorney general during the Clinton administration, still has to undergo a formal “vetting” review by the Obama transition team before the selection is final and is publicly announced, said one of the sources, who asked not to be identified talking about the transition process. But in the discussions over the past few days, Obama offered Holder the job and he accepted, the source said. The announcement is not likely until after Obama announces his choices to lead the Treasury and State departments.

PLEASE JOIN
CO-CHAIRS
The Honorable Gerald Kogan & Robert Josefsberg
AND HOST COMMITTEE MEMBERS
The Florida Association of Criminal Defense Lawyers
The Miami Chapter of the Florida Association of Criminal Defense Lawyers
Ray Abadin, Robert Ader, Frank Angones, Jeffrey S. Bass, David Bogenschutz, Ron Book,Bennett Brummer, Richard Burton, Bob Butterworth, Jennifer Coberly, Kendall Coffey, Hank Coxe, Alan Dimond, Steven Eisenberg, Luis Fernandez, Peggy Fisher, Rick Freedman, Tomas Gamba, Gus Garcia, Mayor Joseph Geller, Ervin Gonzalez, Jonathan Goodman, Fred Haddad, Larry Handfield, Arturo Hernandez, Richard Hersch, Robert Hertzberg, Milton Hirsch, Elizabeth Hitt, Dennis Kainen, Hank Klein, Joe Klock, Thomas Korge, Albert Krieger, John Lazarus, Hector Lombana, Bruce Lyons, Wallace Magathan, David Markus, Amanda Maxwell, Jon May, Luis Meurice, Richard Milstein, Michael Moskowitz, Jorge Mursuli, Pam Perry, Mark Raymond, Bill Richey, David Rothman, Frank Rubino, Leonard Sands, Mark Schnapp, Joseph Serota, Richard Sharpstein, Angela Sherrill, John K. Shubin, Lisa Sloat, H.T. Smith, Russell Smith, Ed Strongin, Brian Tannebaum, Rod Vereen, Stanley Wakshlag,
Mayor Otis Wallace, Jeffrey Watson, Jeffrey Weiner, Alan Weinstein
FOR A RECEPTION & FUNDRAISER TO BENEFIT
THE BENEDICT P. KUEHNE, LEGAL DEFENSE FUND

Christabelle’s Quarter
3157 Commodore Plaza
Miami, Florida 33133
THURSDAY, NOVEMBER 20, 2008
6:00 p.m. – 8:00 p.m.
Suggested Contribution of $200.00 Payable to
“Benedict P. Kuehne, Legal Defense Fund”
If unable to attend, kindly send contribution to
Shubin & Bass
46 S.W. 1st Street, 3rd Floor
Miami, Florida 33130
R.S.V.P. to Nydia Marrero at
305.381.6060 or
nmarrero@shubinbass.com
Complimentary Valet Parking

Michael Vick lives in a prison in Kansas, making 12 cents an hour while plotting his return to the NFL. His houses and farms will soon be gone, the two yachts are history, and he’s down to his last couple of Range Rovers.

A race horse he bought for US$60,000 died of colic, the Atlanta Falcons are still trying to hit him up for millions they paid him, and the IRS and the state of Georgia want nearly $1 million in back taxes.
In 2006 he made nearly $15 million. Recently he reported total income of $12.89 for an entire month.
That’s $12.89 as in 12 dollars and 89 cents. This from someone who, before things went terribly bad, categorized a $1,000 check to his mother as “chump change.”

The numbers are cold, but they have to warm the heart of any animal lover sickened by what once went on at Vick’s Bad Newz Kennels. To many, seeing Vick stripped of the material things he and his fellow millionaire athletes like to enjoy is almost as good as watching him go to prison in the first place.

Best of all, the dogs who survived the terror of Vick’s dogfighting ring are having the last laugh.
They’re the stars of a recent National Geographic Channel television special. They live in comfort in a Utah ranch, thanks to $928,000 Vick agreed to contribute to finance their care.
And now they have their own wine.

Yes, there’s Meryl, looking anything but ferocious on a bottle of Syrah. And there’s Lewis, peeking out from the front of another Vicktory Dog bottle.
Maybe Vick can pick up a $40 bottle when he gets out of prison next July, assuming things go as planned. If he’s careful about not spending his prison earnings in the commissary, he could be paroled with enough to buy a couple of them.

He shouldn’t drink too much, though. Because he’s still got some football to play.
Buried in the hundreds of pages of paper detailing Vick’s financial woes the other day in federal bankruptcy court was the declaration that not only does Vick expect to be reinstated in the NFL upon his release but also believes he will “be able to earn a substantial living” playing quarterback once again.
Good luck with that.

Just what team he believes will employ him to do so wasn’t mentioned, but the Falcons are surely out. They severed their ties with the quarterback they once were sure would lead them to a Super Bowl and are now being led by a quarterback who has been so good in his rookie season that he just might.
Vick is supposed to be released July 20, so he could be out just in time for the opening of pre-season camps. But how many teams are so desperate for a quarterback that they would risk the ire of PETA-types and other animal activists to sign an ex-con who admitted to doing some heinous things?

The other question is how much would they risk for a quarterback who has a career passing rating of 75.7, fumbles the ball once every 10 times he carries it, and hasn’t played a down in two years. Quarterbacks who could run were once the rage in the NFL, but most teams today look for the traditional pocket passer.
If a team did take a chance on Vick, it would likely be for little or no guaranteed money with incentives kicking in only if he produces - something that can never be certain in the NFL, where injuries and age can quickly take their toll. Even then, Vick won’t keep all his salary because under his bankruptcy plan he must pay part of any future earnings to creditors.

Indeed, Vick’s financial mess is as much a cautionary tale to his fellow athletes as his criminal woes are.
He has assets of $16 million but owes creditors $20.3 million. His lawyers had to hire forensic accountants to find out where the money went, $18 million of it over the last two years alone as Vick bounced from one business deal to another and seemed to hire financial advisers he met standing in line at the supermarket.
Flush with bonus money from the Falcons, Vick bought houses by the handful, invested in a rental car franchise in Atlanta and poured money into a liquor store and restaurant. He hired friends, gave away money and cars, and could never say no to his mother, who got $700 for an Easter Egg hunt one year and $317,000 for a new church building the next.

Now he sits in a prison in Kansas after a staggering and quick fall from the top. Once a favourite of fans who couldn’t buy enough of his No. 7 jerseys he’s now vilified and hated by millions who will never forgive the despicable things he and his buddies did to their dogs.

A comeback is still possible, but my guess is that this story will not end well. Upon his release from prison, the odds are Vick will spend more time dodging creditors than defensive linemen.
The dogs are a different story. Those that survived will live in comfort the rest of their lives.
And for that, we should all raise a glass of Lewis red in celebration.

Interesting case on consent coming out of the First District.

Facts: The appellant is a passenger in a car. The car is pulled over. The appellant gives consent to a search of his person. Appellant then tries to exit the car before the search has taken place. The police officer says “sit tight,” and orders Appellant to remain in the car. Subsequent search of appeallant reveals cocaine.

What happens to the initial consent? Is it still valid? First District says “no.” The previous consent is now presumed to be invalid and involuntary.

“It is reasonable that consent can be rendered invalid or effectively withdrawn, by intervening unlawful police conduct. This would be especially true when the unlawful conduct involves a violation of the Fourth Amendment rights of an individual whose previously granted consent is all law enforcement has to justify the search.”

In applying that principle, the First District held that the illegal detention (post consent) created a taint of an involuntary search that the State could not overcome.

I agree with this holding although I don’t think it will help law enforcement be better on the street when it comes to searches and seizures. I’m sure the officer has no idea why the evidence was suppressed. Of course the key issue here was the illegal detainment. There was no reason to keep the appellant in the car because the officer had witness no crime taking place. Once the appellant was ordered to sit still, it stands to reason he no longer wanted officer to search his person.