Federal Judge Rejects Motion by DOJ to Disqualify Defense Attorneys in Illegal Drug and False Marketing Case

By Zach Schlien, Daily Business Review, April 30, 2019

U.S. Magistrate Judge William Matthewman denied the department’s request in an order issued Monday. The department had sought to preclude Kuehne Davis Law litigators Benedict “Ben” Kuehne and Michael Davis from continuing to represent dietary supplement company Blackstone Labs and its CEO, Phillip Braun.

A South Florida judge has rebuffed an attempt by the Department of Justice to prohibit two Miami attorneys from representing their clients in federal court.

U.S. Magistrate Judge William Matthewman denied a prosecution motion to disqualify the defense counsel for dietary supplement company Blackstone Labs and its CEO Phillip Braun on Monday. The department’s April 1 motion (https://drive.google.com/file/d/12hLcN_lq-4fgfTd7PFG1stGTAcX4Jm0Q/view? usp=sharing) asked the court to bar attorneys Benedict Kuehne and Michael Davis from representing the defendants in the Southern District of Florida.

The Kuehne Davis Law partners served as Braun and the Boca Raton-based company’s defense counsel when the DOJ’s Consumer Protection Branch investigated the Blackstone CEO. An indictment filed against Braun on March 7 (https://drive.google.com/file/d/1Ika0ZH2bDpq94281Qt6M11amYw2MY_Ch/view?usp=sharing) accused him of participating in a conspiracy to skirt Food and Drug Administration oversight as well as falsely market unregulated steroids and nutraceutical drugs as dietary supplements.

The agency’s motion contended the Kuehne Davis Law litigators “should not be allowed to handle the charged case because the firm also represented a number of company employees as fact witnesses during the grand jury investigation.”

“All three of these witnesses’ likely testimony is directly relevant to establishing Braun’s and Blackstone Labs’ knowledge that particular products were illegal controlled substances and their intent to defraud in the … conspiracy,” the filing said. “Any cross-examination of any of the three witnesses by Mr. Kuehne as a zealous advocate of Braun’s or Blackstone Labs’ interests would be conflicted by any confidential communications that could form the basis for impeaching the witnesses’ trial testimony.”

However, Matthewman’s 17-page order rejected the DOJ’s motion and allowed Kuehne and Davis to appear as defense counsel. The judge asserted the three conflict-laden witnesses cited by the prosecution are no longer represented by Kuehne Davis Law.

“All three of the former clients of KD Law stated that they believed that KD Law solely represented them in their capacity as employees of Blackstone,” the order said. “Their representation by KD Law was limited to a brief grand jury appearance for each of the three witnesses back in 2018, and each of them stated that they imparted no confidential information to KD Law at any time.”

Matthewman’s order held “there is no divided loyalty” by Kuehne and Davis between the witnesses and their clients Braun and Blackstone in addition to finding “there exists no conflict of interest which could cause Mr. Kuehne or Mr. Davis to improperly use privileged communications or information in cross-examination.”

“KD Law has a wealth of historical and factual knowledge of this case, and it would be very time consuming, expensive, and prejudicial to Defendants Braun and Blackstone if they had to retain new counsel at this point in this federal prosecution,” the judge said. “The Court is convinced that KD Law will vigorously and ethically represent defendants Braun and Blackstone and that such representation will not be limited in any way because of their prior representation of the Blackstone employees.”

David Frank with the DOJ’s Consumer Protection Branch declined to offer a statement, citing the federal organization’s policy of not commenting on ongoing cases. Kelly Laco with the DOJ’s Office of Public Affairs referred the Daily Business Review to the agency’s online page on the case (https://www.justice.gov/civil/consumer-protection-branch/case/united-statesv-braun-etal).

Carmen Vizcaino, President of the Florida Association of Criminal Defense Lawyers’ Miami Chapter, offered a statement calling Kuehne “an experienced pillar of the legal community.”

“After two years of Mr. Kuehne’s representation, the Government’s attempt to replace him with substitute counsel that has no knowledge of the case, rocks the foundation of our justice system,” she said. “The Sixth Amendment’s right to counsel of choice is sacred and personal; once that decision is made, any Government intervention in that relationship becomes highly suspect … Seeking [Kuehne’s] removal from the matter in an attempt to receive a strategic advantage at trial should send chills down any American’s spine.”

Kuehne told the DBR that Davis and he “applaud Judge Matthewman for validating our clients’ knowing choice of counsel in order to be in the best position to confront the government’s charges.” “The Supreme Court cautioned that government claims of defense counsel conflict must be scrupulously evaluated because of the very real likelihood that the government is merely attempting to work a strategic advantage by interfering with the choice of counsel,” he said. “Constitutional fairness in the criminal justice system demands vigilance in rejecting government efforts to veto a defendant’s chosen counsel. In this case, we expect our defense efforts will validate our clients’ not guilty pleas.

Src: https://www.law.com/dailybusinessreview/2019/04/30/federal-judge-rejects-motion-by-doj-to-disqualify-defense-attorneys-in-illegal-drug-and-false-marketing-case/?slreturn=20200415121510

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