U.S. v. Velez, 586 F.3d 875 (11th Cir. 2009)
On an issue of first impression for the Eleventh Circuit Court of Appeals, the Court held that the plain language of 18 U.S.C.A. § 1957(a) (f) (1) exempts monetary transactions derived from criminal proceeds and used to secure legal representation. In this case, the defendant, an accused Colombian drug leader, paid his legal defense fees with alleged laundered money. The government then indicted the defendant and his two attorneys on one count of money laundering charges. The District Court dismissed Count One, finding that 1957 (f)(1) clearly excludes from its scope, “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” The Government argued that the exemption was nullified by Caplin & Drysdale, Chartered v. United States,491 U.S. 617, 626 (1989). The Appellate Court disagreed finding that Caplin & Drysdale addressed criminal proceeds with respect to the civil forfeiture statute, 21 U.S.C. § 853 and therefore had no bearing on 18 U.S.C. §1957 and one’s representation guaranteed by the sixth amendment.
Archive for the ‘Attorney's fees and sanctions’ Category
Sixth Amendment guarantee of representation allows defendant to pay legal fees with alleged illegal proceeds.
Monday, January 11th, 2010AUSA Prosecutors sanctioned for placing defendant’s liberty at risk and violating moral obligation to accused.
Friday, April 24th, 2009While I normally do not cover district court opinions here, U.S. v. Shaygan, 2009 WL 980289 (SDFL April 9, 2009) is a case out of the Southern District of Florida that is worth mentioning.
The defendant, an M.D., was charged with 141 counts of distributing controlled substances (pills) to patients, which were not intended for legitimate medical purposes. After a four week trial he was acquitted on all counts. During the course of the trial, the defense learned that during the pretrial preparation two of the government’s witnesses had tape recorded one of the defense attorneys during a witness interviews. This was done as part of a government “investigation.” It turns out that the prosecutors had decided to launch a witness tampering investigation against the defense team without the authority of the United States Attorney’s office.
Following the trial, a hearing was held on the misconduct and a motion for sanctions pursuant to the Hyde Amendment. In a 50 page order, Judge Gold awarded attorneys fees and costs to the defendant in the amount of $606,795. He also entered sanctions and public reprimand against the prosecution team of Assistant United States Attorneys Karen Gilbert, Sean Cronin and Andrea Hoffman for “filing a superseding indictment, instigating and pursuing the collateral witness tampering investigation, engaging in discovery violations, and creating a potential conflict-of-interest under McLean for the defense team, plac[ing] Dr. Shaygan’s liberty at unnecessary risk and violated their moral obligation to the accused.”
Prior to the decision, the United States Attorney had announced that an investigation by the D.O.J.’s Office of Professional Responsibility had begun and the district court reserved further sanctions pending the results of the D.O.J. investigation. This opinion is a must read for criminal defense attorneys as well as prosecutors (who I am sure have been reading it.)
