Proposals to Reform the Federal Money Laundering Statutes
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The legislative history makes clear, however, that the change in the final language was not
intended to change the substantive intent of the original provision. As Rep. Hughes said on the floor
of the House on October 21, 1988:
The original House provision applied to all representation and not just the trial phase. The term “ right to representation as guaranteed by the sixth amendment ” goes beyond the bare right to counsel at trial and applies at the investigative or grand jury phases of a criminal proceeding — phases which, particularly in RICO, CCE or money laundering cases, can be far more lengthy, complex, and critical than the trial itself.
With respect to the kinds of transactions Congress intended to include within the exemption, Rep.
Hughes stated:
Finally, I would note my intention that a transaction is “ necessary ” to protect sixth amendment rights, within the terms of the amendment, when it involves a bona fide fee paid in good faith for legitimate legal representation. This concept of “ bona fide fees, ” as developed recently by the Justice Department in its guidelines governing section 1957, does not include a fraudulent or sham transaction designed to shield the property from forfeiture or hide its existence from governmental investigative agencies. Generally, a transaction is a sham or fraud if there is a scheme or plan to maintain the client's interest (or that of any other person or corporation associated with the client) in the asset or the ability to use it beneficially.
Senator Ted Kennedy, who had been one of the Senate conferees, provided similar clarification. 29
29 See 134 Cong. Rec. S17360-01 (Nov. 10, 1988).
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