He struggled through the catastrophe, joining the Catholic support group Emmaus and pressing on with his law practice. His clients included the typical cast of unsavory characters who grace the offices of criminal defense lawyers, including brothers Andy and Rudy Diaz, two of Miami's most notorious drug traffickers. On November 15, 2001, police stopped Elso at the corner of Flagler Street and Le Jeune Road, seizing $266,800 in cash the lawyer had in the trunk of his BMW. Elso maintained the money was payment from the Diazes for legal services. This past December 22, a federal jury found him guilty of money laundering.
Had Elso, who is 41, acted in the same manner as the Diaz brothers, he might have been out of jail in 2008, that is, by the time his son Michael turns thirteen and his daughter Alyssa sixteen. Earlier this year, the Diazes pleaded guilty to numerous counts of cocaine trafficking and money laundering, agreeing to cooperate with federal prosecutors. Many of the charges they faced were dropped; each was sentenced to a little more than four years in prison. Last week Judge Seitz sentenced Elso, who was charged only with money laundering and who had refused to plea bargain, to ten years, more than twice what the Diazes got. That means his son will be 19 and his daughter 22 when he next sees them as a free man.
"As I stand before you I quite frankly never thought I would be in this position, talking about myself and the imposition of a sentence on me," Elso said in an emotional statement to the judge last week, wearing a light green prison uniform, his ankles shackled. "I feel very ashamed, especially because of all these friends who are here because of something I was charged with and was found guilty of."
In remarks to the judge before the sentencing, Bruce Rogow, one of Elso's lawyers, conceded that his client was guilty of "absolute stupidity." But the fact that he took cash from the Diazes on several occasions, didn't get a receipt, and didn't keep records doesn't translate into a criminal scheme to launder money, argued Rogow, a law professor at Nova Southeastern University. "There is not a scintilla of evidence that there was a criminal intent to avoid the law or to violate the law," said Rogow, who recently joined Mel Black and Marlene Montaner on Elso's defense team. An expert in constitutional law, Rogow will be taking the lead in the appeal, which promises to raise issues regarding the way the U.S. government sometimes prosecutes alleged drug offenders and metes out sentences.
The $266,800 that was in the trunk of Elso's BMW became the centerpiece of the prosecution's case, which rested on the ability to convince the jury that Elso had attempted to conceal the money. Prosecutors Richard Gregorie and Michael Davis argued that because the lawyer had fled, he must have known he was committing a criminal act. Police testified that they pursued Elso in unmarked cars as he zigzagged through Little Havana that afternoon, driving fifteen to twenty miles per hour over the speed limit in residential areas, running red lights and stop signs. Elso's lawyers countered that he was in the middle of rush-hour traffic and did not notice he was being chased. (Elso did not take the stand during the trial.) The jury believed the cops.
"I think that the reason why the chase became such a feature [in the prosecution] is they were trying to show guilty knowledge, that he knew he had done something wrong. That's why they had to have a chase," Rogow explained in an interview. "They said it was a chase. He didn't know it was a chase. Until they boxed him off and he couldn't go anywhere."
Rogow has qualms about the prosecutors' attempt to use the chase to lengthen the harsh sentence Elso was already sure to get. Because it was a drug-related offense, Gregorie and Davis were able to ask the judge for two more years, on the basis he had "endangered public safety." "In a reckless driving case you might get a fine. You might get a 30 days suspended sentence. But you're not going to get two years in prison," Rogow said. "But under the sentencing guidelines [for drug-related crimes] they make it much more punitive."
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 Times to 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."
Judge Seitz said that she was imposing a sentence at the low end of the spectrum to lessen the impact on Elso's children, but remained firm. Attorneys had to be held to a higher standard than others, she said, because if they weren't, the U.S. justice system, indeed American democracy, could be corrupted. "The license to practice law is a privilege, but with that privilege comes enormous responsibilities," she declared. "I look to lawyers to truly be the best, the role models, the leaders who are looking out for the public good."
