2103. Knowledge As Applied To Bona Fide Fees

As applied to bona fide fees received for representation in a criminal matter, the Department's policy precludes prosecution if proof of knowledge is based solely on evidence of willful blindness. Thus, prosecution will not be authorized solely on evidence that the attorney consciously avoided learning the true nature of the property.

The existence of actual knowledge will be determined on a case-by-case basis, taking into consideration all available facts and circumstances. However, a prosecutor seeking to indict an attorney for a violation of § 1957 based on a monetary transaction arising from the payment of bona fide fees for representation in a criminal matter should be very circumspect in seeking authority to proceed. The prosecutor must first possess proof beyond a reasonable doubt that the specific property involved in the monetary transaction was derived from "specified unlawful activity" as defined in § 1957(f)(3). Second, the prosecutor must possess proof beyond a reasonable doubt that the attorney actually knew that the specific property was criminally derived. Third, this proof of knowledge may not be based solely on evidence that the attorney consciously avoided learning the true nature of the property.

Because this third knowledge requirement is a matter of policy and not a statutory mandate, a prosecutor who receives approval to prosecute an attorney for a violation of § 1957 based on a monetary transaction arising from the payment of bona fide fees for representation in a criminal matter may request a willful blindness instruction at trial if the evidence warrants such an instruction. In other words, while the Department will not authorize prosecution where the evidence of knowledge is based solely on a willful blindness theory, once authorization has been obtained, this policy does not preclude the government from relying on a willful blindness instruction at trial. However, it is expected that this will only occur in extraordinary cases, and that cases normally will be submitted to the trier of fact without reliance on a willful blindness theory.