2312

Knowledge that the Asset in Fact is from Criminal Misconduct

Regardless of whether any criminal or civil proceedings have been instituted or whether a forfeiture count specifically describes an asset, an attorney may have actual knowledge that an asset in fact is from criminal misconduct. Evidence that the attorney learned from the client or another involved in the criminal activity that the asset was from an illegitimate source would be compelling proof of the attorney's knowledge. Except when the use of such communications involves compelled disclosure of a confidential communications made during the course of representation, such communications may be relied upon to establish actual knowledge that the asset came from criminal misconduct. See this Manual at 2316. For example, a client's testimony at trial or voluntary disclosure of his/her communications with his/her attorney may be relied upon to establish actual knowledge. While generic or all-inclusive descriptions of property alleged to be forfeitable by themselves do not establish actual knowledge that a particular asset has been alleged to be forfeitable, such descriptions are probative and relevant evidence to prove that an attorney had actual knowledge that an asset was from criminal misconduct. Also relevant is evidence of the method or manner of payment and the attorney's knowledge of the client's means of livelihood, so long as it is based on information other than compelled disclosure of confidential communications during the course of the representation. See this Manual at 2316. Additionally, the presence or absence of an order restraining assets is relevant. The existence of actual knowledge that an asset is from criminal misconduct will have to be determined on a case-by-case basis, taking into consideration all of the relevant evidence. For example, if an indictment alleges that "all profits and proceeds, including $200,000" are subject to forfeiture and $200,000 has been restrained, there would have to be other evidence of an attorney's knowledge of the source of his/her fee to prove that he/she had actual knowledge that other cash he/she received is from the criminal misconduct. In any event, if the government sought to forfeit a fee in such a case without direct evidence of the attorney's knowledge, the attorney could probably obtain equitable relief. The attorney may be able to rely on the fact that sufficient cash was restrained to establish that the attorney reasonably was without cause to believe that other cash is not subject to forfeiture. On the other hand, if there were no order restraining a sufficient amount of cash and the fee was paid in cash, circumstantial evidence may establish that the attorney had actual knowledge that the fee was paid from the proceeds of criminal misconduct. For example, actual knowledge might be established if a forfeiture count was based on a drug felony charge, the fee was paid in a manner suggesting that it was the proceeds of drug trafficking and there was evidence--other than from confidential communications--that the attorney knew the client had no legitimate source of income. This latter evidence might exist where a pauper's petition was filed by the attorney for the client in other proceedings, and the client had not been gainfully employed since that time. [updated August 1999] [cited in Criminal Resource Manual 2310; Criminal Resource Manual 2311; Criminal Resource Manual 2314; USAM 9-119.202]