Saturday, February 9, 2008

Indicted for Writing Opinion Letters

Would the government actually indict an attorney premised upon allegations that the attorney wrote several opinion letters for another lawyer?  As surprising as it might seem, the answer is "yes." The government has indicted Attorney Ben Kuehne for his alleged writing of six opinion letters based upon his investigation of whether funds being paid to an attorney were proceeds of criminal conduct.

Several observations and comments on the Indictment and the accompanying Motion to Seal:

  • The indictment is preceded by a page titled - "Motion to Seal."  It is signed by a "trial attorney - DOJ." It requests the indictment be sealed "for the reason that the named defendants may flee and the integrity of the ongoing investigation may be compromised." - Did the government really believe that Attorney Ben Kuehne would flee?  A later sentence states that"many of the named defendants are foreign nationals." But the government fails to limit the language used in the prior sentence that explicitly states "that the named defendants may flee" to only those who might be foreign nationals.  That is a powerful statement to claim that a prominent Miami attorney might flee.  If they didn't mean to apply this statement to him, is it prosecutorial over-reaching, an attempt to taint the accused, or just sloppy drafting? 
  • The indictment alleges that Kuehne's opinion letters were inaccurate in stating that some of the moneys had come from an individual/company that "his investigation" "had determined.... were reputable and well-established, without any connection to illegal activities."  The indictment claims that some of these opinions were untrue because moneys had in fact come from "undercover law enforcement operations."  ----  Isn't the very purpose of an undercover operation to make it seem like things are real?  Is this a situation of accusing someone of issuing incorrect opinion letters because the government did a good job of misleading him?
  • Count Six of the Indictment charges Obstruction of Justice. The charge is expressed in a total of 2 sentences. It states: 

"From on or about January 23, 2003, continuing to the date of this indictment, the defendants, .......did corruptly endeavor to influence, obstruct and impede the due administration of justice; that is investigations by the grand jury; to wit, endeavoring to influence, obstruct, and impede a federal investigation, as set forth above.  In violation of Title 18, United States Code, s 1503."  (names omitted)

A charge without any facts?  Did the government actually put a mere restatement of section 1503 as the basis of a criminal charge against an attorney? Co-blogger Peter Henning called the Indictment of Ben Kuehne a "head-scratcher," but that was prior to receiving the document. But after reading it, I'd go a step further - they have actually indicted an attorney for obstruction of justice and alleged no facts in this count to support the charge.  It almost sounds like a case the 11th Circuit reversed, U.S. v. Thomas, 916 F.2d 547 (11th Cir. 1990).

Perhaps the most troubling aspect of this indictment is that it represents yet another instance of the government interfering in the payment of attorney fees for the criminally accused.  As opposed to going to court and asking for the fees to be returned as improper, they have opted to proceed with criminal charges that in some cases carry up to 20 years.

Indictment - Download us_v_kuehne_indictment_oct_2007.pdf

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2008/02/indicted-for-wr.html

Attorney Fees, Money Laundering, Obstruction, Prosecutions | Permalink

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Comments

1. The sealing letter is use of and when an or is called for. Further the letter states the gov would answer questions in camera. You know the judge knows the D atty and maybe the gov had to explain. It does not take much to get a sealed indictment. A little overreaching to say the gov. is trying to taint the D. I think the indictment does a good job of that.

2) As you know there is a sting provision in 1956 so it does not matter if the government did a good job of misleading soemone. Although that is not charged here.

2. In count six it states "as set forth above." Thus talking to all the paragraphs above the count. Not my favorite way to see something charged, but it is done all the time. Usually is a mail/wire fruad count that states "the scheme as set forth above"

3. IF the charges are true it is laughable to suggest that the gov would not go after the D atty. criminally.

4. It appears that this will be a tough case for the gov.

Posted by: lawdevil | Feb 8, 2008 5:17:15 PM

We must have read different indictments. After reading the blog post, I was expecting to read an indictment that was bereft of any specific allegations of knowledge or illegality on the part of the lawyer. Instead, the indictment clearly alleges that the lawyer knew that the representations in his opinion letters were false, and further alleges that the lawyer was involved in the creation of false records to support his false assertions in the opinion letter.

Since when is it viewed as lawful for lawyers to provide knowingly false information or false opinions in an opinion letter? Much less for a lawyer to participate in the creation of false documents in a misguided attempt to attempt to substantiate such false information?

If the allegations are true, this was an indictment that definitely should have been brought. Such conduct places a stain on the entire legal profession.

Posted by: jim8104 | Feb 9, 2008 1:28:05 PM

if anyone would take the time to read the indictment it is clear the case not revoleve entirely around opinion letters with false statements. Kuehne is also accused of using his trust fund to receive money and then transferring that money to Roy Black.

If that money is indeed tainted, his only defense will be that he was unaware of the money being tainted at the time he engaged in any transactions. It sounds as if his defense will have to be that he was deceived.

Posted by: Time Out | Feb 11, 2008 10:54:50 AM

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