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Judge Seitz concluded that "90 percent of the citizens of Miami-Dade County" drive the way police said Elso did the day of his arrest and declined to add the two years.
The chasm between Elso's prison term and the Diazes' opened up because of this: The Diazes agreed to plead guilty and cooperate with prosecutors, in exchange for dropped charges and reduced sentences; Elso maintained his innocence all along. Thus, under federal law the Diazes were not subject to the draconian punishment structure known as "mandatory minimum sentences," which Congress established in the late Eighties. Judges cannot legally impose sentences below the established limits.
"It's outrageous," Rogow told New Times. "To me the imbalance here, the disproportionality, is amazing. But it's not unusual in the federal criminal process. That's the frightening thing about it."
So frightening that last year, U.S. Supreme Court Justice Anthony Kennedy called for abolishing the current mandatory minimum sentencing system. Following his lead, the American Bar Association formed the Justice Kennedy Commission, which will recommend changes to the minimum-sentence laws later this year. "We have a sentencing system that is badly out of whack," offered Neal Sonnett, a Miami-based criminal defense lawyer and former federal prosecutor who is on the commission. (He is not involved in the Elso case.) "This is a case that seems to illustrate the worst aspects of our sentencing scheme, where the traffickers wind up getting substantially less than the lawyer who represented them."
Under federal drug laws, Elso could not have fared better, but he could have ended up far worse. Rogow saved Elso from the nearly seventeen-year sentence the U.S. attorneys had sought. He was able to do so by convincing the judge to knock $50,000 off the grand total of $440,000 that prosecutors accused Elso of laundering, thus sparing Elso another seven years in prison, which the mandatory sentencing rules would have otherwise required.
Lawyers Rogow and Black believe Elso's trial was flawed in that the jury did not fully understand the arcane federal law that actually allows attorneys to receive illegal drug money (or proceeds of other illegal activities). They criticize Seitz for failing to properly instruct the jurors about a "safe harbor" Congress created in the form of Section 1957 of the U.S. Criminal Code. The exception applies to "any transaction necessary to preserve a person's right to representation as guaranteed by the Sixth Amendment to the Constitution." Without the provision, Congress concluded, lawyers would shy away from drug traffickers, bank robbers, and others who may have only illicit proceeds at their disposal. The result could create messy Sixth Amendment rights issues.
On December 19 the jury foreman presented Seitz a piece of paper with the following question on it: "If I collected my fees as an attorney representing a drug dealer, am I guilty of money laundering?" Seitz responded indirectly, saying the issue at the heart of the case was whether Elso received money "knowing that the transaction was designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of the specified unlawful activity." She was citing Section 1956 of the U.S. Criminal Code, which also governs money laundering, but does not contain the safe harbor provision.
"They asked a question that was basically a yes or no question: 'If a lawyer gets paid his fee and knows it's drug money, does that make it a crime?'" Rogow recounted. "It depends on the circumstances. The judge's answer to the question kind of directed the jury to a result that it didn't have to be directed to. I think the right answer probably would have simply been, 'Maybe.'"
(Indeed one juror recently contacted New Timesto express misgivings about the jury instructions, but declined to comment for publication.)
Sonnett said federal prosecutors tend to interpret the safe harbor differently than defense lawyers. The matter has never been settled by an appellate court, he noted. "There's a major difference between a lawyer who accepts money to act as house counsel, for example, and one who accepts money to launder it for the client," he said. "You know, the client comes to me and says, 'Let me give you $20,000 in cash and you write me a check for it, so I don't have to show the cash, or I don't have to take the cash to a bank.' That's clearly a money laundering offense." But the Elso case is not so black and white.
"I apologize to everyone," Elso declared at his sentencing while avoiding any admission of guilt as friends, relatives, and members of Emmaus listened. Several wept quietly as he spoke of his late wife and the sad effect his prison term would have on the family. "I recognize I've made mistakes, putting myself in the situation that gave rise to these charges. I'm not saying I'm not without fault in my entire life, but may he who is without fault cast the first stone, and he who is without sin cast the first stone. Well, there have been a lot of stones thrown."