Brief filed: 03/14/2018
United States v. Farrell
4th Circuit Court of Appeals; Case No. 17-4488
Appeal from the United States District Court for the District of Maryland (8:15-cr-562-RWT)
The use of willful blindness as a substitute for actual knowledge, without an appropriate factual basis, lowers the government’s burden of proof and infringes a defendant’s due process rights. Prosecuting criminal defense attorneys for money laundering under a willful blindness theory threatens clients’ Sixth Amendment rights and creates and ethical conflict for attorney defendants. The use of Section 1956 to prosecute criminal defense lawyers has significant, negative policy implications. Section 1956 should not be used to charge criminal defense lawyers in contravention of Department of Justice policy, robbing them of the protection of an otherwise applicable safe harbor. The requirement of proving concealment under Section 1956 is not a meaningful basis for avoiding the otherwise applicable Section 1957 safe harbor.
Catherine E. Creely, Akin Gump Strauss Hauer & Feld LLP, Washington, DC; David B. Smith and Elizabeth Franklin-Best, NACDL, Washington, DC.F, San Francisco, CA.