SPLIT DECISION FOR CALI CARTEL LAWYERS, FEDS

MIAMI-Ever since federal prosecutors indicted an abrasive Miami
criminal-defense lawyer and a former Department of Justice extradition
expert five years ago, howls of outrage have reverberated from defense
lawyers nationwide.

William Moran and Michael Abbell were charged with being part of the
infamous Cali cartel's vast drug importation and distribution enterprise
even though, defense lawyers contend, there is no evidence the two had ever
brought drugs into the United States or joined in the cartel's other illegal
activities. By saying that representing members of the cartel amounted to
becoming part of their criminal activity, the government was putting the
practice of lawyering on trial and intimidating the defense bar.

Now, after two lengthy trials that riveted the attention of lawyers across
the country, it turns out the defense lawyers' outcry wasn't hyperbole. In
fact, in the view of the highly respected U.S. District Court Senior Judge
William M. Hoeveler, they are largely right.

With two astonishing decisions last month, Hoeveler has cut the guts out of
the government's ambitious case.

The government presented no evidence Moran and Abbell were complicit in
planning the importation and distribution of cocaine, he concluded in a May
5 written order that acquitted them of the charges.

Last week, on the day that Moran was to be sentenced, Hoeveler erased the
two lawyers' racketeering conspiracy convictions.

"The lawyers did some things that were highly unprofessional and, indeed,
unethical," Hoeveler told a courtroom packed with Moran's friends and
supporters. "I don't think they should practice law again. That doesn't make
them part of a racketeering conspiracy."

Hoeveler also noted his concern that the government's prosecution theory has
ramifications beyond the fate of Moran and Abbell. "I'm concerned about ...
the impact of a case like this on the practice of law generally," he said.

The decisions vindicated the defense bar and stunned jurors, who had
wrangled for two weeks before coming to their own conclusion at the end of
last summer's second trial.

"This is a devastating loss to the government and I hope it sends the
message to stop targeting lawyers just because you don't like their
clients," says Denver attorney Larry Pozner, president of the National
Association of Criminal Defense Lawyers.

After hearing Hoeveler's decision on racketeering conspiracy from his seat
in the back row of the courtroom, juror Robert Gooden, a Miami antiques
dealer, says, "It was real disappointing. I actually felt I wasted a lot of
my time last summer."

Other Convictions Stand

The government, too, suffered a serious blow, although not a knockout. Moran
and Abbell's convictions on money-laundering conspiracy stand, and they are
scheduled to be sentenced next week. Four other lawyers originally charged
with Moran and Abbell pleaded guilty before the case went to trial.

Even so, Hoeveler's decision that the government had no basis for much of
its case is a stunning development, and one certainly not one hoped for by
prosecutors when they embarked on this case in 1995.

The guts of the government's case was that the lawyers had obstructed
justice and laundered money for the cartel. But prosecutors William Pearson
and Edward Ryan thought there was more to the case than that.

The two believed that Moran and Abbell crossed the line from representing
cartel members to becoming part of their operations when they, from the
prosecutors' viewpoint, paid the families of jailed smugglers to discourage
them from cooperating with federal agents, solicited affidavits they knew
contained lies to exonerate cartel chieftains and warned smugglers of
expected indictments so they could flee to Colombia.

The decision to indict on the far more serious racketeering and drug
trafficking conspiracy charges was not made lightly. The case was reviewed
for months by top U.S. Department of Justice officials.

The review included a meeting with lawyers representing Moran, Abbell and
the other indicted lawyers, who tried to dissuade the government from
holding lawyers responsible for crimes committed by the cartel.

Miami lawyer Albert Krieger, who originally represented Moran, used himself
as an example in his arguments to prosecutors. Krieger has represented
prominent organized crime figures, including John Gotti. He knows organized
crime exists and that one of his clients may well be a crime boss, he
recalled saying at that meeting.

If Krieger successfully defended him, "my client might go back to a life of
crime. Have my actions supported future criminality? The answer is yes. That
is what the Constitution demands of me." But under the government's theory
in the Cali cartel case, he had committed a criminal act.

That argument and many more didn't carry the day. Pearson and Ryan got the
go-ahead to proceed.

"This was not a message case. This was an evidence case," says Miami lawyer
Kendall Coffey, who was U.S. attorney at the time. "If anything, there was
special sensitivity about the concern the prosecution would be
misperceived," he says. As a result, he and prosecutors tried to reassure
defense lawyers that they were not attacking them.

Prosecutors charged racketeering conspiracy because "the evidence supported
that." It was also a tactical decision, Coffey says, since such a charge
gives prosecutors the ability to introduce evidence that otherwise would be
inadmissible. "I never agonized more over a charging decision and I was
never more proud of a prosecution brought while I was U.S. attorney."

The result was a five-month trial in 1997. Jurors acquitted Moran and Abbell
of a racketeering count and said they were deadlocked on four conspiracy
counts including importation and distribution of cocaine and
money-laundering.

Prosecutors streamlined their case for the second trial. Yet the government
prevailed only after Hoeveler dismissed a pro-defense juror who said she
would not follow the racketeering law and juror instructions. The remaining
11 jurors convicted on racketeering and money-laundering conspiracy charges,
but deadlocked on the drug counts that would have carried a life sentence.

Why Wait?

If Hoeveler harbored such deep concerns about the government's case, why did
he wait until Moran's sentencing day?

Defense lawyers say judges are reluctant to weigh in until a jury has
spoken. Judges can issue a judgment of acquittal after the government
finishes presenting its case, but that rarely happens, in part because
jurors are supposed to decide any questions of fact, and there are typically
at least some, and often many, of those.

Indeed, jurors apparently saw things Hoeveler's way in the first trial,
acquitting on the main racketeering charge. Hoeveler might have thought that
the second jury would also acquit on the second and lesser racketeering
charge and deadlock again or acquit on the drug charges, thereby resolving
the case without his taking action.

But when they instead convicted on racketeering conspiracy and defense
lawyers filed court papers asking the judge to step in, Hoeveler acted.

"I've concluded the evidence failed to demonstrate an intent to join the
overarching conspiracy," Hoeveler told the packed courtroom.

As an example, Hoeveler noted that Moran had written a letter to a cartel
boss asking for more legal business. That, he said, isn't the action of a
man that prosecutors had painted as "house counsel," or main lawyer, for the
cartel.

Hoeveler seemed particularly concerned that prosecutors could not pinpoint
just when a lawyer crosses the line to become part of a racketeering
conspiracy.

If a lawyer knows a person is a member of the Mafia and agrees to represent
him, has he become a member of the criminal enterprise? Hoeveler asked.
After being told he wasn't by Adalberto Jordan, head of the U.S. attorney's
office appellate division, Hoeveler asked whether destroying evidence
against the client makes the lawyer a member of the enterprise. Jordan
responded that a single criminal act does not do so. That happens when the
lawyer demonstrates a "pattern of activity that furthers the enterprise,"
Jordan said. But he conceded it's difficult to say just when that pattern
becomes a crime.

Hearing Hoeveler's concerns, Pearson rose to defend his case.

"There is no question from our perspective what these lawyers and others
did," he said. "I think we should strive for raising the bar a bit on the
practice [of law]."

That seemed to confirm defense lawyers' contention that prosecutors brought
the case to go after defense lawyers, and drew heated response.

"Is the government supposed to be redefining how lawyers practice law?"
Moran attorney Holly Skolnick asked.

Pearson and Ryan will not comment on Hoeveler's decision, but their
disappointment was clear during the court argument about how much time Moran
should spend in jail for money-laundering conspiracy.

By Skolnick's reasoning, Moran should receive a light sentence because her
client is accused of laundering a mere $15,000 in payments to wives of
cartel operatives who were desperately short of cash. Prosecutors say the
payments were for a much more sinister purpose-buying silence.

But Ryan stunned defense lawyers by saying that since the jury had convicted
on a conspiracy count, Moran was responsible for what all other members of
the cartel did. As a result, his sentence should be based on the $2 billion
the Cali cartel laundered over more than a decade.

Although prosecutors did not specify how many years Moran should spend in
jail, under sentencing guidelines they could be seeking 15 years.

An outraged Skolnick said prosecutors had come up with this idea to get
around Hoeveler's dismissal of the racketeering conspiracy charge. "We think
it is vindictive," she said.

Moran's sentencing hearing began Monday and was continued until Thursday.
Abell's hearing began Tuesday and was still going on at press time.