Tuesday, December 23, 2008
As noted here, the judge in Ben Kuehne's case dismissed Count One of the Indictment against him. It's a simple question and an obvious ruling. The statute (18 USC § 1957) has an exemption as part of a definition clause that provides that the term monetary transaction "does not include any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution." The government attempted to use the Caplin & Drysdale decision, a forfeiture case, to support their argument. But as noted by Judge Cooke, "[u]nlike § 1957, the civil forfeiture statute, 18 U.S.C. § 981, does not include an exemption for attorney's fees." The court made it clear that this ruling does "not find the statute exempts everyone who handles tainted funds, to and from defense counsel to provide legitimate criminal defense services."
The more important question is why did the government include this charge that clearly was not permitted under the express terms of the statute, and what does this say about the rest of their case. For background see here.