stating that evidence of “intricate and odd structuring of transactions” — including the purchase of a condominium with 76 cashier’s checks, each for less than $10,000, that had been purchased at multiple banks and currency exchanges — supported a conclusion that the defendants knew that structuring was illegal when combined with other evidence
How later courts described this case
- stating that evidence of “intricate and odd structuring of transactions” — including the purchase of a condominium with 76 cashier’s checks, each for less than $10,000, that had been purchased at multiple banks and currency exchanges — supported a conclusion that the defendants knew that structuring was illegal when combined with other evidence
- holding that the defendant’s offer of proof which consisted only of a tape recording and a private investigator’s affidavit did not satisfy the defendant’s preliminary burden under Franks without the offering of other sworn testimony or reliable evidence
- finding compliance with Ratzlaf where the district court instructed the jury that “[a]n act is done willfully if done voluntarily and with intention to do something the law forbids”
- finding that complex scheme to enlist family members to purchase money orders and cashier's checks in small denominations provided sufficient evidence of knowledge of illegality
Written by the judges who cited it.
The opinion
FLAUM, Circuit Judge,
concurring.
I join the court’s opinion affirming the district court. I write separately only to express some concern as to what I perceive as a possible ambiguity in the district court’s instruction explaining wilfulness to the jury.
The United States Code provides that no person shall structure a financial transaction for the purpose of evading the legal reporting requirements. See 31 U.S.C. § 5324 . Criminal liability attaches when one “willfully” violates § 5324. See 31 U.S.C. § 5322 . Arguably, the district court’s instruction (“An act is done wilfully if done voluntarily and with intention to do something the law forbids”) is ambiguous in that the term “willfully” could be understood as either accepting the general intent to do something that happens to be illegal, or requiring the specific intent to engage in conduct that the defendant knows to be unlawful. The Supreme Court held recently that a criminal defendant charged with structuring does not act willful *553 ly unless there is “specific knowledge by the defendant that his conduct is unlawful.” Ratzlaf, - U.S. at -, 114 U.S. at 660 (citation omitted). I accept that when read in context, the wilfulness instruction given here, see post at 548, at least implicitly directs jurors to consider whether the defendant knew he was violating the law, and thus it meets the spirit of Ratzlaf — “[t]o convict [the defendant] of the crime with which he was charged, violation of 31 U.S.C. § 5322 (a) and 5324(3), the jury had to find he knew the structuring in which he engaged was unlawful.” Ratzlaf, - U.S. at -, 114 S.Ct. at 663. See also Cheek v. United States, 498 U.S. 192, 201 , 111 S.Ct. 604, 610 , 112 L.Ed.2d 617 (1991), quoted by Ratzlaf, - U.S. at -, 114 S.Ct. at 659 (noting that wilful “requires proof of ‘voluntary, intentional violation of a known legal duty;’ ” United States v. Warren, 612 F.2d 887, 890 (5th Cir.1980) as quoted in Ratzlaf, - U.S. at -, 114 S.Ct. at 660 (“Wilful violation of § 5316’s reporting requirement for transportation of currency across international boundaries requires that defendant ‘have actually known of the currency reporting requirement and have voluntarily intentionally violated that known legal duty.’”).
In assessing jury instructions, “consideration must be given to the charge as a whole,” and “there is no error even though an isolated clause may be inaccurate, ambiguous, incomplete or otherwise subject to criticism.” Bi nks Mfg. Co. v. Nat’l Presto Industries, Inc., 709 F.2d 1109 , 1117 (7th Cir.1983). “An erroneous instruction is not otherwise reversible unless the court is ‘left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.’ ” Id. (citation omitted). Though the district court may not have employed the best phraseology when judged by the hindsight of Ratzlaf, my reservation concerning any possible ambiguity falls marginally short of the threshold error required by Binks. Thus, even though the structuring instruction given here avoids reversal by our court, I suggest that future instructions should incorporate the words “know” or “knowing” when explaining to a jury the mental state required for a § 5322 violation. See Ratzlaf, - U.S. at -, 114 U.S. at 660.
ORDER
July 29, 1994
On consideration of the petition for rehearing and the motion to amend the opinion filed in the above-entitled cause by petitioner, Ronald Jackson, all of the judges on the panel have voted to deny the petition for rehearing and the motion to amend the opinion.
We agree that Jackson’s affidavit is susceptible to many interpretations, but Jackson’s counsel confirmed during oral argument that Jackson was in the same cell with Shelton. In any event, even if we chose to believe Jackson’s interpretation in disregard of his counsel’s statements during oral argument, the fact that Jackson was not in the same cell, but merely in the same prison, does not affect our disposition. See United States v. Liebowitz, 919 F.2d 482, 483 (7th Cir.1990).
IT IS THEREFORE ORDERED that the aforesaid petition for rehearing and motion to amend the opinion are hereby DENIED.