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2104

Evidence of Actual Knowledge

Another aspect of the Department's policy is that the actual knowledge predicate must be met without relying upon any of the following three categories of evidence: (1) confidential communications made by the client preliminary to and with regard to whether the attorney will undertake the representation; (2) confidential communications made by the client during the course of the representation; and (3) information obtained by the attorney during the course of the representation and in furtherance of the obligation to effectively represent the client.

This means that actual knowledge may not be established by evidence that the attorney learned from his/her client during the course of the representation that the fee was paid from criminally derived funds. Thus, a client's voluntary testimony at trial or a client's voluntary disclosure of communications with his or her attorney--disclosed, for example, in an attempt to "make a deal" by implicating the attorney in criminal misconduct--may not, as a threshold matter, be used to meet the policy requirement of actual knowledge. However, if there exists other evidence, independent of the attorney-client relationship, that establishes beyond a reasonable doubt that the attorney had actual knowledge, client communications may be used at trial to prove the requisite knowledge.

As a practical matter, this limitation means that in most cases there will be proof beyond a reasonable doubt of actual knowledge that pre-existed representation on the particular matter. For example, if an attorney is functioning as "in house" counsel for a criminal enterprise and knows from personal observation or non-privileged communication with the criminal entrepreneurs that certain property is criminally derived, then the subsequent receipt of that property by the attorney as payment for legal representation on a particular criminal matter may be subject to prosecution.

Similarly, if an attorney personally hears an individual boasting of lucrative criminal activities (before any attorney-client relationship was established or contemplated), and if that individual, having no known legitimate source of income, later retains that attorney and pays the attorney's fee with cash, a prosecution under § 1957 may be appropriate.

On the other hand, the fact that an attorney has a long-term attorney-client relationship with an individual who is in chronic trouble with the law, or has represented more than one member of a suspected criminal enterprise, is not sufficient evidence by itself to establish actual knowledge.

Similarly, if an attorney accepts a bona fide fee from a client to provide legal representation in connection with a then-existing legal problem, and the attorney has no information that the specific funds used to pay the fee may be criminally derived other than widespread press reports that the client's only source of income is narcotics trafficking, prosecution under § 1957 would not be authorized. The fact of extensive pre-representation publicity concerning an individual's reputed criminal activities is never sufficient by itself to establish actual knowledge.

The limitation upon the type of evidence that may be relied upon to meet the requirement of actual knowledge is imposed as a matter of policy. It is intended to enable attorneys to explore and inquire freely into all facts relevant to the defense of a client in a criminal matter without fear of prosecution based solely on information learned as a result of carrying out that responsibility. This policy should not, however, be read to authorize or condone conduct on the part of any attorney which, in fact, constitutes a violation of § 1957 or any other law.

[cited in USAM 9-105.600]