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What is willful blindness?


Willful blindness is a concept in federal law that says you cannot make yourself willfully blind, that is, ignore, an obviously illegal situation you are involved in. And if you do, you do so at your peril. Consider the prosecution of Annette Bongiorno, the 66 year old secretary of master Ponzi schemer and investment fraudster, Bernard Madoff. Bongiorno was a high school graduate with no skills other than shorthand and typing. She handled the books for hundreds of investment advisory accounts, most of them fraudulent. But, as she told a federal judge, she did what she was told by Madoff and didn't know what was going on. However, the judge determined that she should have known that her boss's financial success was a sham. She was told to fabricate and backdate a number of fictitious trades, which she did on her boss's orders. She claimed that she never figured out the truth of what was going on. As a Jacksonville criminal defense lawyer, I have represented people charged in criminal conspiracies that claimed not to have know what was going on.

While this may be true, (both for Ms. Bongiorno and my clients) one cannot escape criminal liability by simply being an ostrich with one's head in the sand, as she was. She was charged in federal court with conspiracy, securities fraud and other charges. As a secretary, she received a six figure salary and bonuses. As the judge said, she was not a "coldly, calculating, knowing participant" in the fraud, but rather "...a pampered, compliant and grossly overpaid clerical worker." She "willfully blinded herself" to the illegal acts she was being told to carry out. As evidence that she was not a knowing participant, she preserved incriminating records for years that she might have destroyed, suggesting that she did not really understand the fraud.

But because this was a staggering $17 billion fraud, she faced life in prison. The prosecutors sought 20 years. However, a fair and thoughtful judge sentenced her to 6 years. While this is a far cry from what the prosecutors wanted, it's still serous time. But as the judge stated, "She relied on Madoff's blessing, rather than apply her own good sense and moral compass".

Lesson Learned:

In federal court, it's not a defense to claim you were just following orders and didn't know what was going on, if a reasonable person would know or be able to figure out that crimes were being committed. I've represented business people who were routinely brought large sums of cash for the purchase of cars, boats, jewelry and the like who should have known that the cash was drug money and were charged accordingly. They all claimed not to have known the source of the money they were being paid with. They also thought (wrongly) that if they didn't ask and weren't told, they were committing no crime. They were wrong, because, like Ms. Bongiorno, they should have known better.

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