order to avoid confirming that suspicion. Such sub jective knowledge is what differentiates the true money launderer from the multitudes of persons engaged in everyday financial transactions who may inadvertently What aid in a transfer of illegally acquired funds. The wire transfer of funds or the issuance of a money order, for example, involves the same action by a bank employee whether or not he or she is a money launderer. makes the bank employee a money launderer is what the employee knows about the funds that he or she is handling. Accordingly, the scienter requirement should be one that is unmistakably subjective, i.e., the standard should ask what did the defendant actually know. The mens rea definition of "knowingly" contained in H.R. 1474, we believe, accomplishes this goal. Such a standard would not permit the guilty to escape punishment. Moreover, "knowingly" has historically also included a doctrine variously known as "conscious avoidance," "studied ignorance," or "willful blindness," which essentially states that "if a party has his suspicion aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed to have knowledge. Requirement of Knowledge Satisfied by Knowledge 4 G. Williams, Criminal Law: The General Part $ 57 at 157 (2d ed. 1961). 5 Model Penal Code § 2.02(7) (Proposed Official Draft 1962). The original draft of this language, published in Model Penal Code (Tent. Draft No. 4, 1955), required awareness only of a substantial probability" of the fact's existence, instead of a "high probability. According to the most recent commentaries to the Code, the change made in the Official Draft reflected "the view that 'substantial' did not imply a sufficient level of probability and weakened the distinction between knowledge and recklessness as modes of culpability." American Law Institute, Model Penal Code and Commentarics, Part I, S 2.02 at 248 n.42. The "high probability" Model Penal Code definition of knowledge has received tacit Supreme Court endorsement several times.6 And on the circuit court level, almost every circuit has explicitly adopted the tenet that Given this construction of the "knowingly" standard, its use in a money laundering statute will allow prosecution only of those who either know or are consciously aware of a high probability that they are 6 See, e.g., Turner v. United States, 396 U.S. 398, 416-17 & n.19 (1970) (approving reference to the "high probability" formulation as a measure of "knowledge" under former 21 U.S.C. § 174 (now § 841)); Leary v. United States, 395 U.S. 6, 46 n.93 (1969) (Model Penal Code definition used as a "general guide" to determine the scope of the word "knowing" in former 21 U.S.C. § 176(a)); see also Barnes v. United States, 412 U.S. 837, 845 & n.10 (1973) (18 U.S.C. § 1708 construed). Turner and Barnes also more generally endorse the "conscious avoidance" doctrine outside of the Model Penal Code context, noting that awareness of the attendant circumstances inevitably existed in each case "unless (defendants] practice[d] a studied ignorance to which they are not entitled. Turner, 396 U.S. at 417; Barnes, 412 U.S. at 845 n.10 (quoting Turner). 7 See, e.g., United States v. Wright, 537 F.2d 1144, 1145 (1st Cir.) ("['knowingly' scienter requirement can be met when there is a reckless disregard as to the truth of the statements to which one subscribes and when there is a conscious purpose to avoid the truth."), cert. denied, 429 U.S. 924 (1976); United States v. Cincotta, 689 F.2d 238, 243 n.2 (1st Cir.) ("[e]vidence of conscious avoidance is merely circumstantial evidence of knowledge"), cert. denied, 459 U.S. 991 (1982); United States v. Squires, 440 F.2d 859, 863 (2d Cir. 1971) (court adopts Model Penal Code formulation for purposes of interpreting 18 U.S.C. § 922(a)(6)); United States v. Sarantos, 455 F.2d 877, 881 (2d Cir. 1972) ("[c]onstruing 'knowingly' in a criminal statute to include willful blindness to the existence of a fact is no radical concept in the law"); United States v. Hanlon, 548 F.2d 1096, 1101 (2d Cir. (footnote continued) participating in a money laundering transaction, and not of those who merely carelessly or unwittingly participate in such transactions. An additional problem is that, as currently drafted, all three bills are ambiguous concerning the relationship of their applicable mens rea standards to their definition of "unlawful activity". Specifically, what in fact must a defen dent know to be found guilty? Each bill is susceptible to being read as requiring government proof that the offender had the requisite mens rea (footnote continued) 1977) ("settled law that a finding of guilty knowledge may not be avoided by a showing that the defendant closed his eyes to what was going on about him"); United States v. Cano, 702 F.2d 370, 371 (2d Cir. 1983) ("knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist") (quoting United States v. Bright, 517 F.2d 584, 587 (2d Cir. 1975)); United States v. Caminos, 770 F.2d 361 (3d Cir. 1985) (deliberate closing of eyes to a high probability can constitute knowledge); United States v. Martin, 773 F.2d 579 (4th Cir. 1985) (knowledge inferrable from willful blindness); United States v. Restrepo-Granda, 575 F.2d 524, 529 (5th Cir.) (approval of equating deliberate ignorance with knowledge), cert. denied, 439 U.S. 935 (1978); United States v. Seelig, 622 F.2d 207, 213 (6th Cir.) (same), cert. denied, 449 U.S. 869 (1980); United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975). (same); United States v. Massa, 740 F.2d 629, 643 (8th Cir. 1984) (jury may "infer the element of knowledge from deliberate indifference"), cert. denied, 105 S. Ct. 2357 (1985); United States v. Jewell, 532 F.2d 697, 700 (9th Cir.) (en banc) ("to act knowingly' . . is . . . also to act with an awareness of the high probability of the existence of the fact in question"), cert. denied, 426 U.S. 951 (1976); United States v. McAllister, 747 F.2d 1273, 1275 (9th Cir. 1984) (same), cert. denied, 106 S. Ct. 92 (1985); Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962) ("a conscious purpose to avoid enlightenment" is tantamount to "knowledge"). with regard to the fact that the unlawful activity in question, either under H.R. 1474 and H.R. 1367, constituted a RICO-type offense, or under H.R. 2785, constituted a felony. If the mens rea level includes "reckless disregard," this extra step of proof is not much of an obstacle and probably can be inferred circumstantially. But if "knowledge" must be shown (as is argued herein), a spurious defense is created to the effect that the defendant might have known that the laundered funds derived from illegal activity, but not from illegal activity that constitutes a RICO-type offense. Although arguably this type of hypothetical defendant might be viewed as slightly less culpable than one with more specific knowledge of the exact nature of the underlying illegal activity, we believe that the federal interest in eradicating money laundering is sufficiently strong so as not to require that this distinction be drawn. A person who is in fact laundering drug-related monies, but who thinks the funds derive from a bank robbery, should still be included within the bill's scope, since his or her contribution to the continued existence of drug money laundering is the same as someone with more accurate knowledge, and his or her level of culpability is still sufficiently high to deserve criminal convic8 tion. 8 Cf. United States v. Feola, 420 U.S. 671 (1975) (it is no defense to the crime of assaulting a federal officer, see 18 U.S.C. § 1114, that the defendant did not know the victim was a federal officer). |