UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
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) GLORIA FLORES VELEZ, BENEDICT P. KUEHNE, and OSCAR SALDARRIAGA OCHOA,
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money laundering charges in Counts One through Five. Counsel for Mr. Kuehne had intended to file this bill of particulars motion only after completing a review of the initial discovery provided by the government pursuant to the standing discovery order. At this time, we still have not received the documentary discovery relating to the undercover accounts that are prominently featured in Sections C and D ofthe indictment. Superseding Indictment ~~ 14-20. Nonetheless, we have reviewed the more than 30,000 pages of documentary discovery provided by the government thus far; and we do not wish to delay the filing ofthis motion any further, as the relief requested herein is important to our ability to prepare a defense.
other lawyers in 2002 and 2003 regarding fees offered to them by Fabio Ochoa Vasquez ("Ochoa"), an accused Colombian drug dealer. Superseding Indictment ~~ 4-7. The opinions concluded that the fees were clean and could properly be received. Id. The indictment alleges that some of the funds received as fees constituted proceeds of drug trafficking and that Mr. Kuehne had knowledge of this when he rendered his opinions.
Id. at ~ 8. The purpose of this motion is to require the government to state which funds it
will contend constituted proceeds of drug trafficking. A. Assets In Colombia Used To Raise Funds For Legal Fees
concluded that Ochoa and his family had been wealthy before Ochoa entered the drug trade; and that there were clean assets in Colombia that could be sold to raise legal fees. His opinion in this regard was supported by numerous interviews he conducted in Colombia, and by Colombian court documents he obtained concluding that Ochoa and other members of his family had significant assets not subject to forfeiture. The indictment suggests that assets in Colombia that were sold to raise funds for legal fees constituted proceeds of drug trafficking. The indictment alleges - apparently referring to assets in Colombia - that such assets were "at least commingled with proceeds of drug trafficking." Id. at ~ 8. However, the indictment is remarkably vague on this point. The indictment is almost entirely uninformative on the critical question of what particular assets sold in Colombia to raise funds for legal fees the government contends constituted proceeds of drug trafficking. This makes it extraordinarily difficult for Mr. Kuehne to prepare his defense because the asset sales, which took place over a period of
eighteen months, included literally thousands of head of cattle and approximately one hundred horses owned by various members of Ochoa's family that were sold in hundreds of transactions to dozens of buyers. In order to prepare his defense and to meet the government's proof, Mr. Kuehne needs to know which, if any, of the Ochoa assets in Colombia - used to raise funds for legal fees - are claimed to have constituted proceeds of drug trafficking. B. Dollars Purchased On the Parallel Market Used To Pay Legal Fees
Shortly after the sale of assets for pesos in Colombia began, the banks in Colombia declined to exchange the pesos for dollars or wire the money to the United
most ofthe pesos raised from the sale of assets in Colombia were exchanged for dollars on the parallel market. Parallel market exchanges of pesos for dollars are common in Colombia and in much of the rest of South America. Indeed, parallel market exchange rates are published in the daily newspapers in Colombia next to the official bank
pesos in Colombia and wants to exchange them for dollars in the United States. A second Colombian person or company has dollars in the United States and wants to
arranged by a broker. In this type oftransaction, the pesos never leave Colombia, and the dollars never leave the United States. The indictment in this case alleges that pesos were exchanged for dollars in parallel market transactions, and that the dollars were used to pay legal fees. Id at ~ 10. The government calls the parallel market the Black Market Peso Exchange ("BMPE").
Kuehne had completed an opinion letter regarding the particular funds in question. Id at ,-r,-r 11-12. The indictment alleges that there were fifty-seven wire transfers of dollars into Mr. Kuehne's trust account. Id at,-r 11. All but five of these transfers involved dollars acquired on the parallel market. With regard to some of the parallel market exchanges, the indictment alleges that the pesos raised from the sale of Ochoa assets in Colombia were exchanged for dollars in the United States that constituted proceeds of narcotics trafficking in the United States apparently narcotics trafficking by people unrelated to Ochoa. The indictment alleges specifically that the dollars for thirteen ofthese transfers, totaling $1,798,339.40, came from accounts operated and controlled by the United States government (the undercover accounts), and that these undercover accounts contained proceeds of narcotics trafficking.
However, the indictment does not state whether the government is contending that any of the dollars from the other parallel market transfers to Mr. Kuehne's trust account constituted proceeds of narcotics trafficking. In order to prepare his defense and to meet the government's proof, Mr. Kuehne needs to know which, if any, of the other thirty-nine parallel market transfers the government contends involved dollars derived from drug trafficking. C. Alleged False Documents
The indictment alleges that the defendants created false documents to disguise the true origin ofthe fees. Id at,-r,-r 2,27. In order to prepare his defense, Mr. Kuehne 2
1 Obviously, Mr. Kuehne was not aware that the United States government was transferring drug proceeds into his trust account.
needs to know with particularity which documents the government contends were falsified, in what manner and by whom. D. Co-Conspirators
In Count One, the money laundering conspiracy count, the indictment refers to co-conspirators "known and unknown to the grand jury." Superseding Indictment ~ 21. The indictment further alleges that the Defendants acted "in concert with others," id at ~ 23, and refers repeatedly to "persons known and unknown to the grand jury." Id at ~~ 25-26. In order to prepare his defense, Mr. Kuehne needs to know the identity of these supposed co-conspirators and other actors. E. Legal Principles
"The purpose of a true bill of particulars is threefold: 'to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense.''' United States v. Anderson, 799 F.2d 1438, 1441 (lith Cir. 1986) (quoting United States v. Cole, 755 F.2d 748, 760 (lith Cir. 1985». In this case, all three of these purposes suggest that a bill of particulars is necessary; in order for Mr. Kuehne to have the opportunity to prepare a proper defense, additional or "supplemental" facts are required. Id In fact, because the omitted information "'is essential to the defense'" in this case, "'failure to grant a request for a bill of particulars may constitute reversible error.''' Cole, 755 F.2d at 760 (quoting United States v. Crippen, 579 F.2d 340,347 (5th Cir. 1978». In addition, in cases involving allegations of falsified records, courts have routinely required the government to identify in a bill of particulars which documents it contends were false. See, e.g., United States v. Bortnovsky, 820 F.2d 572, 574-75 (2d Cir. 1987) (reversing conviction based on falsified insurance records where district court
denied motion for bill of particulars specifying which of the 4,000 documents produced in discovery were allegedly falsified); United States v. Trie, 21 F. Supp. 2d 7, 21-22 (D.D.C. 1998) (ordering bill of particulars identifying "what the false statements are, what about them is false, who made them" because a defendant should not be forced to "guess[] which statements he has to defend against"); United States v. Upton, 856 F. Supp. 727, 748 (E.D.N.Y. 1994) (ordering bill of particulars in case alleging falsification of airplane maintenance records because there was no reason "why defendants should be kept in the dark until trial as to which specific documents the government will contend were falsified"). Finally, "it is the common practice among courts in [the eleventh] circuit to grant ... motions [for bills of particulars] insofar as they request a list of unindicted coconspirators, at least when that information is not otherwise known to the defendant(s)." See United States v. Williams, 113 F.R.D. 177, 178 (M.D. Fla. 1986) (citing Anderson, 799 F.2d at 1439 and Cole, 755 F.2d at 760). See also United States v. Warren, 722 F.2d 827,837 (11th Cir. 1985) (particulars ordered with respect to unnamed and unindicted participants"); United States v. Fernandez, 780 F. 2d 1573, 1575 (11th Cir. 1986) (particulars ordered with respect to "the names of the unindicted co-conspirators known to the Government").
PARTICULARS REQUESTED
Mr. Kuehne seeks an order directing the government to provide the following in a bill of particulars. 1. State with particularity which of the assets in Colombia used to raise legal fees constituted "proceeds of drug trafficking." 2. State with particularity which of the dollars in the United States purchased through the parallel market - i.e., what the government calls the "Black Market Peso
Exchange" (see Superseding Indictment ~ 10) - constituted "proceeds of drug trafficking" immediately prior to the time of their purchase. 3. State with particularity what "false and fraudulent" documents were created including but not limited to "records relating to the purported sale of cattle in Colombia" - to disguise the origin, nature, source, and control of funds used to pay Ochoa's attorney's fees, as alleged in Superseding Indictment ~~ 9,22,24 and 27, and describe how these documents are false and who falsified them. 4. State with particularity the identity ofthe persons and co-conspirators with whom the government contends the defendants acted, as alleged in Superseding Indictment ~~ 21, 23 and 25. CONCLUSION The allegations in the indictment do not provide any of the information sought herein, all of which Mr. Kuehne needs in order to prepare his defense. Under these circumstances, Mr. Kuehne's motion should be granted, and the United States should be compelled to provide all of the requested particulars concerning the very broad allegations made in support of Counts One through Five. COMPLIANCE WIm LOCAL RULE 88.9
Pursuant to Local Rule 88.9, the undersigned counsel contacted counsel for the government, John Sellers, who informed the undersigned that the government opposes the relief sought in this motion.
HOWREYLLP
1299 Pennsylvania Ave, NW Washington, DC 20004 Telephone: (202) 783-0800 Facsimile: (202) 383-6610 Attorneys for Defendant Benedict P. Kuehne
& MOSCOWITZ, P.A. Mellon Financial Center - Suite 2050 1111 Brickell Avenue Miami, Florida 33131 Telephone: (305) 379-8300 Facsimile: (305) 379-4404 Attorneys for Defendant Benedict P. Kuehne MOSCOWITZ
By: John W. Nields, Jr. Jason C. Raofield Evan J. Werbel Michael S. Lee
By: sl Jane W. Moscowitz JANE W. MOSCOWlTZ Florida Bar No. 586498
John Sellers, Esq. U.S. Department of Justice 1400 New York Avenue, NW Washington, DC 20005 Tom Pinder, Esq. Trial Attorney U.S. Department ofJustice 1400 New York Avenue, NW Washington, DC 20005
slJane W. Moscowitz Jane W. Moscowitz