USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 93-1898

UNITED STATES,

Appellee,

v.

MICHAEL B. LONDON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Cyr, Circuit Judge,

_____________
Coffin, Senior Circuit Judge,
____________________
and Bownes, Senior Circuit Judge.
____________________

____________________

Henry D. Katz for appellant.

_____________
Nina S. Goodman,
________________

Attorney, with

whom, David S. Kris, Attorn

______________

Department of Justice, Criminal Division, Appellate Section, Donald

______

Stern, United
_____
States

States Attorney,

Attorney,

Attorney,

and

Dina M. Chaitowitz,
__________________

Michael Kendall,
________________

were on brief for appellee.

____________________

September 18, 1995

____________________

Assistant

Assistant Uni
United

Sta

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
_____________________

spanned the

After

better

part of

two

months, a

defendant-appellant

Michael

B.

London

conduct and actually conducting

a trial that

jury

of

convicted

conspiring

to

the affairs of an enterprise

through a pattern of racketeering activity ("RICO conspiracy"

and "RICO

substantive"), money

currency transaction reports

extortion, and aiding and

the jury

For

his

laundering, failing

to file

("CTRs"), conspiring to

abetting extortion.

commit

Subsequent to

verdict, London also pleaded guilty to tax evasion.

crimes,

London

imprisonment and fined

was

$500,000.

sentenced

to

188

In addition, he

months'

agreed to

forfeit $865,000.

In

this appeal, London challenges his convictions,

arguing that the

suppress

certain

conviction; (2) in

district court

evidence

relevant

(1)

to

in failing

his

counts

to

of

instructing the jury on the law regarding

failure to file CTRs; and (3) in

for

erred:

failing to grant his motion

a judgment of acquittal on the money laundering and RICO

counts.

After carefully considering the parties' arguments,

we affirm.

I.
I.
__

A. Factual Background
A. Factual Background
______________________

London operated Heller's Cafe ("Heller's), a bar in

Chelsea, Massachusetts.

known as M

He also ran a check-cashing service,

& L Associates ("M & L"), out of a small enclosed

-22

area

in the bar.

& L charged its customers

commission on each check cashed.

a 1% or 1.5%

Both Heller's and M & L had

at least one employee other than London.

The

tended to

evidence at trial demonstrated that bookmakers

frequent Heller's and

to use

M & L

as a

check-

cashing service.

Sometimes, M

that banks would not

neither

made

out

accept.

by

bookmakers' agents)

nor

& L cashed

bookmaker checks

For example, some

payable

to the

who were cashing them.

checks were

bookmakers

(or

Others were made

out either to fictitious names or to real persons or entities

who

were not

to receive

the funds.

London

neither asked

about the names on the checks he cashed nor required that the

checks be

endorsed.

on

federal

which

Heller's,

And before December 17, 1986 -- the day

agents

see infra
___ _____

notifying the

--

Internal Revenue

currency transactions

U.S.C.

at

executed

London

search

never

warrant

filed

Service ("IRS") of

involving more

than $10,000.

at

CTR

his many

See 31
___

5313(a) (requiring financial institutions to report

currency

Secretary

transactions

of

(check-casher

in

the Treasury)

is a

the

and
___

manner

31

prescribed

C.F.R.

financial institution)

by

the

103.11(i)(3)

and 31
___

C.F.R.

103.22(a)(1) (financial institutions must report all currency

transactions involving more than $10,000 to the IRS).

London's operating

bookmaker

customers.

Not

procedures were a

only

-33

did

boon to

London provide

his

these

customers with an immediate and untraceable source of cash to

pay their various expenses (including gamblers' winnings), he

enabled

them

to accept

checks

from

their own

customers.

This, in turn, increased business volume, for the ability

pay

gambling

debts by

larger and more

frequent bets.

out-of-state gamblers

and possible

funds

check

for

encouraged

It

also made it easier

to do business with

some gamblers

(and thereby gamble with

gamblers to

to pay

to

make

for

local bookmakers,

debts with

money on which

company

they paid no

taxes).

London's

promotion of bookmaking often took a more

active form.

with

In 1986, London operated a bookmaking operation

one Kenny

Isabella's

Miller.

bookmaking

He

also

operation

helped run

while

one

Isabella

Dominic

was

Finally, London acted as a "pay and collect" man for

his bookmaker customers, making payments to

ill.

many of

winning gamblers

and collecting payments from losers.

London also assisted Vincent Ferrara, the leader of

an

organized

crime

group,

in

collecting

protection money) from bookmakers.

"rent"

(i.e.,

London identified certain

of his bookmaker customers to Ferrara, telling him "anybody I

get

you

get."

London

then

summoned

the

bookmakers to

Heller's to meet with Ferrara, who demanded that they pay him

anywhere

from

"protection" and

$500

to

$1000

(or

more)

help in debt collection.

per

month

for

London collected

-44

rent

payments and, at least once, passed along a request for

debt

collection assistance

from

a bookmaker

who had

been

induced to accept Ferrara's protection.

As stated above, London never filed a CTR with

the

IRS

prior

to

December 17,

the

execution

1986.

From

of

the

December

search

18,

warrant

1986,

on

through

December 31, 1988, however, he filed 211 CTR's on behalf of M

&

L.

Although London

had instructed his

customers to make

certain that each check was for less than $10,000, London did

cash

individual checks

$10,000.

When

that

he cashed

a group

customer, London would often

days or in

to indicate

and regulatory

amounts greater

of checks

than

for the

same

deposit the checks on different

different bank accounts.

evidence tending

statutory

were in

There was

that London

testimonial

was aware

reporting requirements

of the

during the

period in which he failed to file any CTRs with the IRS.

B. Procedural History
B. Procedural History
______________________

On October 28, 1986,

and affidavit

London,

in response to an application

made pursuant to an

his businesses,

and

his

on-going investigation of

associates, the

district

court issued two orders authorizing the government to conduct

electronic

surveillance

at

Heller's.

The

first

order

authorized, for a thirty-day period, the interception of oral

communications in and adjacent to the enclosed area

in which

& L operated; the second authorized, also for a thirty-day

-55

period, the

telephones

recording of

located behind the bar.

interception

the court's

of otherwise

non-interceptable communications,

additional

times when named

investigation were on Heller's

December 3, 1986, the

from two

In order to minimize the

orders limited surveillance to

targets of the

an

wire communications made

premises.

court extended each of the

thirty days.

Evidence

On

orders for

derived from

these

interceptions was introduced against London at trial.

On December

magistrate

Heller's for

judge for

evidence

17, 1986, federal agents

a warrant

applied to a

authorizing them

of unlawful

gambling,

to search

loansharking,

distribution of narcotics, money

file

CTRs.

The

authorizing

the

magistrate

agents

to

laundering, and failure

judge

search

issued

the

"Heller's

to

warrant,

Cafe,

which

occupies the first floor and basement of 110 Chestnut Street"

and to

seize

"books and

records, ledgers,

correspondence,

notes, slips, checks and

any other documents, including bank

records,

unlawful

which

narcotics

reflect

distribution,

transaction

reports;

and

and

gambling,

failure

U.S.

currency

to

loansharking,

file

currency

which constitutes

proceeds of these offenses."

The agents executed the warrant

later that day,

inter alia, almost

_____ ____

and seized,

all of

the

records found in the enclosed area from which M & L operated.

Evidence

seized in the course of

this search was introduced

against London at trial.

-66

On April 11, 1990, a federal

grand jury returned a

two-count indictment charging London with income tax evasion.

On

May 10, 1990, the

superseding

grand jury returned

a fifty-one count

indictment charging London with, inter alia, the

_____ ____

counts

of conviction:

one count

of

RICO conspiracy,

18

U.S.C.

1962(d); one count of RICO substantive, 18 U.S.C.

1962(c);

twelve

counts of

money

laundering,

1956(a)(1); twelve counts of failing to file

5313(a) and

extortion,

18

5322(b); one

U.S.C.

September

for

5,

superseding

brought

the

tax

1951;

1991,

year

the

two counts

of

to commit

aiding

and

2 and 1951; and one count of

1985, 26

grand

indictment which

indictment within

States Sentencing

CTRs, 31 U.S.C.

count of conspiring

abetting extortion, 18 U.S.C.

tax evasion

18 U.S.C.

U.S.C.

jury

7201.

returned

charged

no

the

purview

On

second

new offenses

Guidelines by extending the

alleged RICO conspiracy to after November 1987.

of the

but

United

period of the

On August

denied

London's

evidence

Heller's.

seized

On

17,

1992,

the

previously-filed

during the

August 18,

district

motion

December

to

17,

1992, the court

court

orally

suppress

1986, search

issued a

the

of

written

memorandum and order denying London's previously-filed motion

to suppress the fruits of the electronic surveillance.

Trial commenced

on February 19,

on January 4,

1993, and concluded

1993, when the jury returned guilty verdicts

-77

on the counts of

contained in

been

the

dismissed by

conviction listed above.

second superseding

the

dismissed by the district

The

other counts

indictment either

government prior

to

court at trial.

trial or

In

1993, the district court sentenced

London.

were

addition, the

jury acquitted London on one money laundering count.

30,

had

On June

This appeal

followed.

II.
II.
___

As

fall

set forth

above, London's

into three main groups.

appellate arguments

First, London takes issue with

the district

Second,

court's

London

connection

challenges

with

the

indictment charging

London

evidence

makes

to

convictions.

denial

of

his

the jury

counts

of

the

him with failing

sundry arguments

support

his

suppression

motions.

instructions

given in

second

to file CTRs.

that there

money

superseding

Third,

was insufficient

laundering

and

RICO

We discuss each of London's arguments in turn.

A.
Denial of the Motion to Suppress the Fruits of the
A.
Denial of the Motion to Suppress the Fruits of the
_____________________________________________________________
Electronic Surveillance
Electronic Surveillance
_______________________

London

denying

contends that the

his motion to suppress

district court

erred in

the fruits of the electronic

surveillance conducted at Heller's in

1986.

He claims

that

the aforementioned surveillance ran afoul of Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

2510 et
__

governs

seq. ("Title
____

III") -- the

electronic surveillance

-- in

federal statute

five ways:

that

(1)

no

-88

Department

2516(1) had

of Justice

official

authorized the

designated in

local United States

18 U.S.C.

Attorney to

apply

for the

improperly

allowed the

relating to

which

initial interception

could

2516(1)(a)-(o), on

(3)

the

related

paying

court's

government to

money laundering, which

interception

be

was not an

ordered,

conversations

to

orders; (4)

intercepted

--

see
___

and

offense for

18

U.S.C.

orders issued;

disclosed

extortion-

conversations pertaining

Ferrara --

the

the orders

monitor conversations

the date the interception

government

of "rent"

orders; (2)

beyond

court ordered

the scope

and the

to

the

of

the

government

employed inadequate minimization procedures under 18 U.S.C.

2518(5);

and (5)

the

district court as to

surveillance,

in

government's

application misled

the

the necessity for conducting electronic

violation

of

18

U.S.C.

2518(1)(c).

Because

we are not persuaded

by any of

these arguments, we

affirm the district court's denial of the suppression motion.

1.
Internal Authorization under 18 U.S.C.
1.
Internal Authorization under 18 U.S.C.
___________________________________________________

2516(1)
2516(1)
_______

Title

III

compels

local

internal authorization from a

Department

interception

with

this

official

order.

"central"

prior

prosecutors

to

obtain

statutorily-designated Justice

to

18 U.S.C.

provision

-99

applying

2516(1).

of

for

judicial

Failure to comply

Title

III

requires

suppression of the

fruits of the unauthorized

interception.

United States v. Giordano,

_____________
________

416 U.S. 505, 524-29 (1974).

noted,

that

London

application

contends

was not

the

authorized by

Justice Department official.

initial

As

interception

a statutorily-designated

London is mistaken.

The government attached to its initial interception

application

the

first

page

of

two-page

authorization

memorandum prepared on October 24, 1986, by

William F. Weld,

then the Justice Department's Assistant Attorney

the

Criminal

Division, and

letter which

accompanied

signed

Weld

for

by

the

the

second page

Weld

Frederick

General for

of

memorandum,

D.

Hess,

the cover

which

the

was

Justice

Department's Director of the Office of Enforcement Operations

of the Criminal

Division.

statutorily-designated

rejecting

found that

(as

London's

It is undisputed that

official

Hess

suppression motion,

Weld had authorized

the application

and

had

was

the

Weld was a

not.

In

district court

the interception application

stated) and

that "the

government

committed a collating error by providing page one of the Weld

approval letter

followed by

page two of

a separate

letter

written

by Hess

to Robert

S. Mueller,

III, Acting

United

States Attorney for the District of Massachusetts."

London

district

court's

disagree that

does

not

"collating

dispute

error"

the

finding;

the finding would validate

-1010

accuracy

nor

of

the

does he

the application if

the district court was

the

application in

authorization.

empowered to look beyond the

deciding whether

there had

been proper

Relying on United States v. Chavez, 416 U.S.

______________
______

562 (1974), and United States v. O'Malley, 764 F.2d

______________
________

Cir. 1985),

he instead argues

the government's

limited

to

determining

approved

"facial

analysis" of

the

38 (1st

cannot save

court was

authorization

statutorily-designated official

interception

construction of Chavez and

______

which we

that the finding

application because the district

whether

the

face of

application.

Even

O'Malley is correct (an

________

express significant

doubt but no

if

in

had

his

issue on

formal opinion),

the facial analysis London advocates reveals that Weld -- and

not Hess -- authorized the interception application.

London's argument hinges entirely

Hess

signed on

behalf

miscollated authorizing

interception

Weld

papers

application.

account, however, is that

states at the top

Weld,

of

Assistant

What

the

on the fact that

second

that were

page

of

the

attached

to

the

it neglects

to take

Weld signed the first page,

____

that it is a

Attorney

Furthermore, that same first

into

which

memorandum from "William

General,

Criminal

F.

Division."

page clearly indicates that the

Assistant Attorney General in charge of the Criminal Division

(i.e., Weld) authorized the application:

By virtue of the authority vested in

him by

Section 2516 of Title

States

Code, the Attorney General of the

United States

has by Order

18, United

Number 1088-

-1111

85,

dated

March

28,

1985,

specially

designated the Assistant Attorney General

in charge

of

the Criminal

authorize

applications for

Division

court orders

authorizing the interception

oral

communication.

appointed
charge
power
acting
hereby

As

Assistant Attorney

of

the

under

of wire
the

this

authorize

me.

delegated
the

or
duly

General in

Criminal Division,

is exercisable by

to

this

WHEREFORE,
power,

above-described

[London]

application to

be made

by any

investigative or

law enforcement officer

of

United

States

2510(7)

of

the

Section

as

Title

defined
18,

in

United

States Code.

Finally, nothing in

presented to

the text

of either page

the district court even

of the

papers

remotely suggests that

Hess, and not Weld, authorized the application.

We

initial

therefore

reject

interception application

London's

was

argument

that the

not authorized

by

statutorily-designated Justice Department official.

2. Interception of Conversations Relating to

2. Interception of Conversations Relating to
_____________________________________________
Money Laundering
Money Laundering
________________

Title

III

interception order

specifies

may issue.

the

offenses

18 U.S.C.

for

which an

2516(1)(a)-(o).

Money

laundering in

specified by

1986.

violation of

legislation that

became effective

Pub. L. 99-570, Title I,

Stat. 3207-35.

interception

As

orders

noted,

authorized

was so

October 27,

the

that the

initial

interception

of

laundering prior to the date

which money laundering was added to 18 U.S.C.

-1212

1956

1365(c), Oct. 27, 1986, 100

London argues

conversations relating to money

on

18 U.S.C.

2516(1)'s

list

of offenses.

Even if

we

assume arguendo
________

that

the

initial interception orders did authorize the interception of

conversations relating to money laundering in violation of 18

U.S.C.

1956

(a

forcefully

disagrees

position

with

and on

which

which

we

the

government

take no

position),

London's argument lacks a factual basis.

London

claims that

interception orders

before money

U.S.C.

issued on

the district

October 24, 1986,

laundering became a predicate

2516(1).

initial interception

The record

court's initial

three days

offense under 18

reveals, however,

orders issued on October

that the

28, 1986, not

October

24, 1986.

U.S.C.

Thus, money laundering in violation of 18

1956 was an offense for which an interception order

___

could issue

at the time

of the initial

interception orders

issued in this case.

We

initial

therefore reject

interception orders

conversations

relating to

London's

argument

authorized the

money laundering

money laundering was not a predicate

that

the

interception of

at a

time when

offense under 18 U.S.C.

2516(1).

3.
Interception and Disclosure of Extortion3.
Interception and Disclosure of Extortion___________________________________________________

Related
Related
_______
Conversations
Conversations
_____________

With

certain exceptions,

Title III

prohibits the

interception and disclosure of conversations other than those

relating to

the offenses

specified in the

district court's

-1313

interception order.

and

2518(4)(c).

wrongfully

See
___

generally 18 U.S.C.
_________

2511, 2517,

As noted, London argues that the government

intercepted

and

disclosed

certain

extortion-

related

paying

conversations

of

(i.e.,

"rent" to

conversations concerning

Ferrara)

despite

district court's initial interception

extortion

offense.

in violation

of

the fact

that

the

the

orders did not specify

18 U.S.C.

1951 as

target

London's claim of governmental overreaching in this

context is without merit.

Unlike

one

London's first

is not built upon

two arguments,

a faulty factual

violation of 18 U.S.C.

the instant

basis; extortion in

1951 was not a target offense listed

in the government's interception applications or the district

court's interception

not

make

unlawful.

the

orders.

interception

Title

III

This fact

of

clearly

the

alone, though, does

"rent"

conversations

contemplates

that

law

enforcement

officials will,

in

the course

of intercepting

conversations related to specified target offenses, intercept

conversations

"relating

to

offenses

other

than

specified in the order of authorization or approval."

U.S.C.

can

2517(5).

See 18
___

an intercepted conversation

relate to both a specified offense and to an unspecified

___

offense.

only

For example,

those

In

when it

"subterfuge"

such a situation, the

is motivated

by an

interceptions where

-1414

interception is unlawful

illicit purpose

the government

-- e.g.,

applies to

intercept conversations relating to offenses

U.S.C.

2516(a)-(o)

conversations

relating to

are unauthorized or

while

intending

offenses for

for which

obtain an interception order.

it has no

specified in 18

to

intercept

which interceptions

probable cause

to

See United States v. Angiulo,

___ _____________
_______

847 F.2d 956,980 (1st Cir.), cert.denied, 488 U.S. 852(1988).

___________

Here, the intercepted "rent" conversations clearly

related to

at

least one

offense

-- operating

gambling

business in violation of 18 U.S.C.

initial

authorization

rent/extortion scheme

gambling, and

of

1955 -- specified in the

orders.

were

The

victims

bookmakers involved

them.

supportably found

Moreover,

that there

the

government's wiretap

after

2516, and

government to

extortion

all, is

application was

an

enumerated

there would

have been

engage in subterfuge unless

was taking

place

but lacked

court

involved in

See Angiulo, 847 F.2d

___ _______

at 980 (clear-error reviewing standard applicable

U.S.C.

illegal

district

was no subterfuge

the initial interception applications.

Extortion,

in

the

the intercepted conversations provided a means

identifying

that

of

to finding

not subterfuge).

offense under

18

no need for

the

it suspected that

the probable

cause

necessary to intercept conversations pertaining to extortion.

London makes

does not

no argument along

suggest this sort

these lines, and

the record

of governmental deception.

The

-1515

government's

interception

of the

"rent"

conversations was

therefore not unlawful.

We still must consider whether the government acted

unlawfully

in disclosing

proceedings below.

of such

the rent conversations

The government argues that the disclosure

"other offense" evidence

the information

is

related

initial authorization orders.

999 F.2d

1090, 1097 (7th

was free to release

during the

to an

is permissible so

offense

listed

long as

in

the

Cf. United States v. Shields,

___ _____________
_______

Cir. 1993) ("Since

the government

this information to a grand

jury anyway

under the [authorization for the offenses listed in the Title

III

order], it is difficult

harmed when the same

different offenses."),

to see how

the defendants were

facts were presented in the

cert. denied, 115 S.

_____ ______

context of

Ct. 515 (1994).

We

need not

reach

the merits

because we conclude

initial

of

this argument,

that the district

interception

orders

however,

judge who issued

impliedly

and

the

permissibly

authorized the disclosure of the conversations at issue.

Under

18 U.S.C.

2517(5),

secure

a court's

blessing to

"other

offense" interception

disclose

The

relevant

disclosure when

the

interception has

by a

judge

statutory

of competent

judge finds on subsequent

government

the contents

in connection

prosecution.

approved

the

may

of an

with a

federal

provision

permits

been

"authorized

jurisdiction where

or

such

application that the contents were

-1616

otherwise intercepted in

[Title

III].

practicable."

Such

accordance with

application shall

Id.
___

It

is

the provisions

be

settled

made as

that

of

soon as

disclosure

authorization "can be implicitly obtained when a judge grants

a renewal of a

wiretap after being advised of

facts

of

the

unspecified

McKinnon,
________

721

F.2d 19,

violation."

23-24 (1st

Cir.

the essential

United States
______________

1983).

v.

In other

words,

"the

disclosure

issuing

judge

of

relating

to

other

obligation

and use

in

subsequent

material

facts

offenses

affidavits

to

constituting or

satisfies

the

the

clearly

Government's

to seek judicial authorization for the disclosure

of evidence inadvertently

intercepted."

Id.
___

at 24

(citations and internal quotation marks omitted).

As

the district

court found

suppression motion, there was implicit

case.

initial

When

the government

extensions

for

other

of the

attached affidavit advised

containing the essential facts of

the extortion violations:

London acts as a

London's

authorization in this

applied for

interception orders, its

the court of interceptions

in denying

bank and account keeper

bookmaking

and

loansharking

operations
illegal

businesses,

businesses

for

[Also] London's
and

which

accounts, only operate

whom

London

percentage
Further

of

with the

of

consent

others
.

pay

surveillance

however,

to

the

members

-1717

the

other persons,

income

electronic

necessary,
balance

and

their

illegal

London keeps

and protection of certain

to

the

identify
of

is
the
each

organization and the relationship between

London,

these

persons

to

organizations,

whom

`rent'

is

and

the

paid,

as

discussed below.

The

attached affidavit

with Ferrara.

Thus, the

application constituted

extortion-related

accordance with

for

then detailed

court's approval of

both

an implicit

conversations

the provisions

the subsequent

London's relationship

disclosure

finding that

the

intercepted

in

were

of Title III

of the

the extension

and permission

conversations.

See
___

McKinnon, 721 F.2d at 23-24.

________

London complains that the affidavit not only failed

to seek approval

for subsequent interceptions of

related conversations, but it also failed to

extortion-

alert the court

that some of the

offense"

that

intercepted conversations related to "other

evidence.

While we

certainly think

it advisable

the government provide issuing courts with this type of

notice, we

note that it

authorization.

affidavit

is not a

sine qua non

____ ___ ___

We presume that the court read the supporting

with care,

and took

seriously its

obligation to

police the interceptions that were taking place.

no

more

to infer

implicit authorization.

(supporting affidavits describing

other

offenses

sufficient

conclu[sion]"

that

interception);

see also
___ ____

F.2d 1064, 1068

of implicit

issuing

to

We require

Cf. id.
___ ___

at 23

communications related

ground

judge

United States
_____________

"reasonable

approved

of

v. Masciarelli,
___________

(2d Cir. 1977) ("[W]e presume .

to

their

558

. . that in

-1818

renewing

. . . the tap the judge carefully scrutinized th[e]

supporting

papers

requirements

and

had been

determined

satisfied.")

that

the

(citation and

statute's

internal

quotation marks omitted).

We

therefore

reject

London's

argument

that the

interception

and

disclosure

conversations violated Title III.

of

the

extortion-related

-1919

4. Minimization under 18 U.S.C.

2518(5)
4. Minimization under 18 U.S.C.
2518(5)
__________________________________________

Title

III

requires

electronic surveillance

interception

of

interception."

the

"in such

communications

18 U.S.C.

a way

not

intercepted

there

inadequate governmental

interceptions

this

at

issue is

emerge

from

(1)

minimize the

subject

London asserts

minimization

to

two alleged

the court's

that

during the

Although London's

bit disjointed,

his brief:

as to

conduct

Without specifying any

conversations,

Heller's.

to

otherwise

2518(5).

wrongfully

was

government

argument on

inadequacies

order permitting

surveillance whenever a named target was on Heller's premises

(instead

of

more

restrictive

order);

and

(2)

the

government's

out

in

policy of

Spanish

available

to

recording all

unless

make

and until

minimization

circumstances of this

case, we

court's

the

order

or

conversations carried

bilingual

agent

was

In

the

in either

the

decisions.

see no error

government's

policy

regarding

communications in Spanish.

In assessing whether the

efforts pass muster

under 18

objective assessment in light

U.S.C.

making

v. United States, 436

_____________

we make

relevant points in time.

U.S. 128, 136-37

this assessment, we tend

and complexity of the

2518(5),

an

of the facts and circumstances

known to the government at the

Scott
_____

government's minimization

to focus on

(1978).

See
___

When

(1) the nature

suspected crimes; (2) the thoroughness

-2020

of the government's precautions to

and

(3)

the

degree

surveillance process.

557

of

bring about minimization;

judicial

United States
_____________

supervision

over

the

v. Uribe, 890 F.2d 554,

_____

(1st Cir. 1989); Angiulo, 847 F.2d

_______

at 979.

We also are

mindful that Title

all

nonrelevant

III "does not forbid

conversations,

agents to conduct

the surveillance

`minimize' the interception

436 U.S. at 140.

to a standard

rather

in such a

instructs

manner as

of such conversations."

effort; perfection

is certainly not legally

the

to

Scott,
_____

This means that "[t]he government is

of honest

attainable, and

but

the interception of

held

is usually

required."

not

Uribe,
_____

890 F.2d at 557.

London's

question

any

instead, they

minimization arguments

specified

acts of

implicate the

the

do not

intercepting

thoroughness of certain

court's and government's minimization precautions.

words,

they amount

to claims

call into

that an

agents;

of the

In other

implicit requirement

allegedly imposed on the

government by Uribe and Angiulo

_____
_______

--

that the government's precautions to bring about minimization

___________

be sufficiently "thorough"

2518(5)

--

suppression

has

not

been

of

all

intercepted

appropriate remedy.

can win

to pass muster under 18

met

in

this

conversations

Even if we assume

total suppression without

-2121

case,

U.S.C.

and

is

that

the

arguendo that London

________

challenging the propriety

of

any

particular interceptions,

we

see no

merit

in his

arguments.

London

characterizes

as insufficient

the court's

"targeted individual must be on the premises" limitation by

-2222

stating:

Perhaps, an undercover agent acting

patron, could [have]
target

was

talking

as a

signal[led] when
on

particular

telephone
thereby
the

or near

one of

minimize[d]
privacy

the bugs

the intrusion

and
into

of

innocent

persons

conversing at other

locations.

Perhaps

monitoring
directed
device

agents
to

cease

when a

could

have

monitoring

target

was not

been
at

any

heard on

that device.

He has not,

however, effectively

colorful assertion,

appeal,

that "had

small, intimate .

made both to

an undercover

rebutted the

the district court

agent remained

. . Heller's Cafe to relay

time a target spoke into

government's

and on

inside the

a signal every

a surveillance device, London would

have identified

him as quickly as Ali Baba in his cave would

have

spy among

spotted a

rebutted the government's

instructed to

his chosen

forty."

Nor has

sworn assertion that "agents

and did cease monitoring

he

were

when they determined

that none of the

targets was a party to [a]

conversation or

that only personal, non-criminal activity was discussed."

In

our view, the former of these two assertions is sufficient to

respond to London's

argument that there should have

undercover agent inside Heller's,

undermines

free

to

any

listen

suggestion that

in

on the

and the latter effectively

the monitoring

conversations

individuals.

-2323

been an

of

agents were

non-targeted

London's

regarding

when an

challenge

Spanish

conversations

interpreter is

explicitly

allows

minimization

languages.

of

See
___

an

expert

U.S.C.

reasonably

in that

available

is

government's

answered

recording

conversations

18

the

carried

2518(5)

is in a code

foreign

during

post
____

in

("In the

hoc
___

foreign

event

the

or foreign language,

language

the

Title III

and

out

policy

more easily:

not reasonably available,

full-scale

intercepted communication

and

to

or

code is

interception

not

period,

minimization may be accomplished as soon as practicable after

such

interception.").

provision

was

interceptions

not

here

Although the

yet

effective

at issue

(it

above-quoted statutory

at

the

was passed

time

of

prior

the

to the

interceptions but went into effect thereafter), its existence

as

pending legislation

government's

policy

--

renders

which

objectively reasonable

tracked

the

the legislation

--

regarding intercepted conversations carried out in Spanish.

This was a

defendant,

complicated

organized crime.

the

complex case involving

complained-of

financial

dealings,

In view of this, we

minimization

minimization precautions

and

links

to

cannot say that either

precautions

ordered by

a sophisticated

or

the court and

the

other

taken by

the

government were

so

lacking in

thoroughness that

they

violated Title III.

-2424

We

arguments.

therefore

reject

London's

minimization

5. Necessity under 18 U.S.C.

2518(1)(c)
5. Necessity under 18 U.S.C.
2518(1)(c)
__________________________________________

Title

interception

III

dictates

application

include

that

the

"a

full

government's

and

complete

statement as to whether or not other investigative procedures

have been tried and

be unlikely

U.S.C.

failed or why they reasonably

appear to

to succeed if tried or to be too dangerous."

2518(1)(c).

provision to mean that

We have interpreted

this "necessity"

the statement should demonstrate that

the government has

made "a reasonable, good faith

run

normal

the gamut

of

18

investigative

effort to

procedures

before

resorting to means so intrusive as electronic interception of

telephone calls."

United States v. Hoffman,

_____________
_______

1306-07 (1st Cir. 1987).

832 F.2d 1299,

London argues that the government's

application misled the

surveillance by

not engaged

court as to

failing to

the need for

mention that the

in the following investigative

subpoenaing

London's

bank

records;

confidential informants -- Francis

--

allegedly available

agents

inside

of

to

government had

techniques:

(1)

utilizing

two

McIntyre and John DeMarco

it; and

Heller's.

(2)

electronic

(3) placing

London's

undercover

claims

are

not

claims

are

convincing.

The

difficult

to

first

fathom,

and

as

third

the

-2525

of

London's

affidavit

attached

to

the

interception application indicated

did
___

review

London's

bank

both that the

records

(during

an

government

unrelated

investigation) prior to applying for the interception

and

that undercover

infiltration was not

"surveillance observations

have disclosed

available because

a high degree

consciousness by London and others to the possibility

enforcement scrutiny" and because

references prior

orders

of

of law

London "requires two known

to engaging in illegal

transactions with a

person."

Other

than

making the

general and

unpersuasive

argument that "visual surveillance by undercover agents"

was
___

possible because Heller's "was fully accessible to the public

eye" and had no "back rooms," London has not taken issue with

the

affidavit statements.

See
___

supra at
_____

21 (noting,

in a

different context, London's failure to rebut the government's

explanation

why

themselves

into

explained how

undercover

agents

Heller's).

And

could

he

the affidavit statements

been misleading.

We consequently

not

certainly

insinuate

has

themselves may

see no factual

not

have

basis for

London's first and third claims.

As to

failed to

the claim

that the

government misleadingly

disclose the availability of

McIntyre and DeMarco

as

informants, London

has not even

attempted to

pointing to contrary evidence, the district

court's findings

that, at the time of the initial application,

reasonably believed

(1)

that

McIntyre

rebut, by

would

the government

not

testify

-2626

against

London;

and

(2)

that

DeMarco's

"investigatory

potential

. .

Heller's."

findings

. [was]

In

are

light

clearly

Schiavo, 29 F.3d
_______

immaterial

of this,

to the

we

investigation at

cannot say

erroneous.

See
___

that

United States
______________

plainly

failure

to

undermine

disclose

London's

McIntyre's

contention

and

DeMarco's

investigatory potential violated 18 U.S.C.

We

government

v.

6, 8 (1st Cir. 1994) (findings of fact made

after suppression hearing reviewed for clear error).

findings

these

therefore reject

misled the

London's

district court

And the

that

the

alleged

2815(1)(c).

argument

as to

that

the

necessity when

applying for the initial interception orders.

B.
Denial of the Motion to Suppress the Evidence Seized
B.
Denial of the Motion to Suppress the Evidence Seized
_____________________________________________________________

During
During
______
the December 17, 1986, Search of Heller's
the December 17, 1986, Search of Heller's
_________________________________________

London

denying his

to

all

argues

that

the district

motion to suppress the

court

erred in

evidence seized pursuant

the December 17, 1986, search of Heller's -- i.e., almost

of M&L's

records,

business

records, some

business

and a significant amount of cash on the premises of

Heller's that

day.

overbroad the

warrant's description

"books

of Heller's

and records,

He

characterizes as

unconstitutionally

of items to

ledgers, correspondence,

be seized:

notes, slips,

checks and any other documents, including bank records, which

reflect

unlawful

distribution,

and

gambling,

failure

to

loansharking,

file

currency

narcotics

transaction

-2727

reports;

and

U.S. currency

these offenses."

executed

the

search

reasonable belief

warrant

He also

could

which

argues

constitutes

that the

not have

held

that the overbroad language

was constitutional.

Because

proceeds of

officials

an

who

objectively

in the search

we disagree

with the

latter of London's two arguments, we repudiate his assignment

of errorwithout assessingthe constitutionality ofthe warrant.

It is well settled that "suppression is appropriate

only if

[the

the officers were dishonest or reckless in preparing

warrant]

objectively

cause."

Here,

were

or

reasonable belief

United States v.
______________

London

warrant

affidavit

has

not

could

without

Leon, 468 U.S.

____

challenged the

probable

executing agents exceeded

have

harbored

in the existence

affidavit, identified any

seized

not

an

of probable

897, 926

preparation

(1984).

of

the

documents which allegedly

cause, or

argued

the warrant's scope.

that

the

Nor has

he

asserted that there was an absence of probable cause for some

____

sort
____

of warrant

to

have issued.

Assuming arguendo
________

that

London might still be

made any of

the

entitled to suppression without having

these arguments, our inquiry reduces

description

defective that an

of

items

to be

seized

was

to whether

so

facially

objectively reasonable officer would

known of the warrant's

unconstitutionality.

so.

-2828

have

We hardly think

Even if the description of items to be seized might

have been more particular, it was not patently overbroad when

viewed

in

enterprise

context.

London operated

where

mingled

apparently-innocent

illegal

he

documents

transactions.

complex

"innocent"

which, in

London

also

documents

to be more limiting

for the executing

intermingled

currency.

his

It

difficult for the magistrate judge

in phrasing the warrant's language,

officers to have

determining what to seize.

with

fact, memorialized

legitimately-obtained and innocently-obtained

therefore would have been

criminal

been more discerning

and

in

In similar circumstances, we have

stated:

We must . . . recognize that the inherent

difficulty
"bad"

in

segregating

records,

and

"good"

from

consequently

in

drawing up an adequately limited warrant,

makes it difficult

for even a reasonably

well-trained officer, who is not expected

to be a legal technician and
to rely on

is entitled

the greater sophistication of

the magistrate -- to know precisely where

to draw the line.

United States v.
______________

Diaz,
____

841

F.2d

1,

(1st

Cir.

1988)

(overturning a suppression order based on an overbroad search

warrant).

items to

best,

Like Diaz, the question whether the description of

____

be seized was unconstitutionally

close,

reasonable

judgment.

and

the executing

in deferring

to the

officers

overbroad was, at

were objectively

magistrate judge's

trained

-2929

We therefore reject London's argument

evidence

seized

during the

December

17,

that all the

1986, search

of

Heller's should have been suppressed.

C. Jury Instructions Regarding London's Failure to File CTRs

C. Jury Instructions Regarding London's Failure to File CTRs
_____________________________________________________________

London argues that we should vacate his convictions

for

failing

to

file

CTRs

erroneously informed the jury

because

the

merely a

regarding

the

position

that

light

reckless disregard of

filing of

CTRs.

the court's

of Ratzlaf
_______

court

that London could be convicted

of the "willful" violation proscribed by 31

if he had

district

The

U.S.C.

5322(b)

his legal

duties

government

instructions

v. United States, 114

______________

takes the

were incorrect

S. Ct.

in

655 (1994)

(knowledge of the illegality of one's actions is necessary to

sustain

conviction

structuring case), an

but points to

under

31

U.S.C.

opinion issued

London's failure to

5322)

(illegal

after London's

object and contends

the instructions do not constitute plain error

trial,

that

under Fed. R.

Crim. P. 52(b) (defects

not brought to the attention

trial court reviewed for plain error).

his failure to

the

decision of this court

493

(1st Cir.

London counters that

object cannot be considered a

instructions were

in complete

waiver because

accord with

an en
__

-- United States v. Aversa,

_____________
______

1993) (en
__

banc) (illegal
____

of the

banc
____

984 F.2d

structuring case),

vacated, 114 S. Ct. 873 (1994) -- that had been handed down a
_______

mere one month prior to the jury instructions in this case.

-3030

Before

inquire

addressing

whether the present

determination

of

error

this court

See
___

United States
_____________

if

waiver,

we must

circuit precludes a

London

has

not

waived

In a recent decision, another

expressed doubt

overruled Aversa's alternative

______

of

law of the

even

objection to the instructions.

panel of

the issue

as to

whether Ratzlaf
_______

reckless disregard

v. Saccoccia,
_________

standard.

Nos. 93-1511/1560-63/1616-

17/2206-07 and 94-1388/1507-08, slip op. at 27 (1st Cir. July

24, 1995).

necessary

But this

to

instruction

Id.
___

Nor

found

activities

in

that

was it implicitly

that

were

Ratzlaf
_______

has

finding

case

was

It

the

defendants

unlawful."

Id.
___

was not

that

not

the

plainly
_______

defendant's failure to

or explicitly

relied upon

the evidence sufficient for the

disregard standard therefore played

court's holding.
_______

dictum.

panel's

at 26-27 (noting the

when the panel held

have

Saccoccia
_________

challenged

erroneous.

object).

the

comment was only

"knew

at 32-33.

that

jury to

their

own

The reckless

no role in the Saccoccia

_________

We therefore feel that the question whether

impliedly

left untouched

or

overruled Aversa
______

remains to be decided--if the issue has not been waived.

Addressing

London's

failure

circumstances

despite the

the

to

of this

waiver

object

case.

recency of the

issue

was

The

we

conclude

excusable

government argues

Aversa decision and

______

state of the law at the time of his trial,

-3131

under

that

the

that,

the overall

London has waived

any

argument

erroneous.

the

split

Court[] ruling comes out

were

not "be

imposed, where [a]

of the blue

see United States v.

___ _____________

and could not

Weiner, 3 F.3d
______

24 n.5 (1st Cir. 1993), the government contends that the

between

this and

the other

ten

meaning of willfulness under 31 U.S.C.

that

instructions

that waiver should

no plain error requirement

have been anticipated,"

17,

aforementioned

While acknowledging

inferred, and

Supreme

that

the issue would be

made it incumbent upon

resolved by the

circuits as

to the

5322 "made it likely

Supreme Court" and

London to lodge an objection.

In so

doing, the government relies on our recent decision in United

______

States v. Marder, 48 F.3d 564 (1st Cir.) (illegal structuring

______
______

case),

cert.
_____

denied,
______

indicated that

5322

S.

Ct.

1441

defendant Marder's failure

willfulness

inexcusable.

115

Id.
___

instruction

given

at 572 n.5.

(1995),

where we

to object to

prior to

Marder is not
______

Ratzlaf
_______

was

on-point, and

the government's argument is not persuasive.

As an initial matter, Marder's trial occurred prior

to our decision

in Aversa.
______

Thus,

presented here -- instructions

the compelling

scenario

mirroring exactly the holding

of

a recent en banc opinion of the controlling circuit court

__ ____

--

did not exist in

Marder's

trial

judge,

instructed the jury in

circuits

that case.

without

More importantly, however,

objection,

accordance with the law in

erroneously

the other

(i.e., that knowledge of the reporting requirements

-3232

was all that

U.S.C.

was needed

to establish

willfulness under

31

5322) despite (1) the existence of authority in this

____

circuit indicating that knowledge of illegality was necessary

to establish willfulness under

5322, see Marder, 48 F.3d at

___ ______

572 n.5 (citing Bank of New England, 821 F.2d 844, 854
____________________

(1st

Cir.), cert. denied 484 U.S. 943 (1987))); and (2) our recent
_____ ______

withdrawal of an

the

Aversa
______

case

on-point panel opinion and decision to hear

en
__

circumstances, which

5322's

imply

see
___

should have

id.
___

In

view

put Marder on

of

these

notice that

willfulness criterion for illegal structuring might

something

requirements,

object to

banc,
____

we

more

than

deemed

the defective

knowledge

of

inexcusable

Marder's

instructions.

Id.
___

reviewed the instructions only for plain error.

The situation

the

presented in

contrast to that in Marder.

______

reporting

failure

We

to

therefore

Id.
___

this case is

in stark

As we have explained, the law of

this circuit was settled by nothing less

en
__

banc
____

opinion

London's

whole

jury.

way,

at the

time

the

trial

This fact alone goes

towards

than a newly-minted

judge instructed

a long way, if not the

excusing London's

failure

to

object.

Moreover, at this same time, all eleven circuits had at least

implicitly

duties

indicated

regarding

establish

114 S. Ct.

the

that

filing

reckless disregard

of

CTRs

willfulness under 31 U.S.C.

at 665 n.3

was

5322.

legal

sufficient

to

See Ratzlaf,
___ _______

(Blackmun, J., dissenting)

-3333

of

(pointing

out the

of

the

near-uniformity in the circuits

reporting

requirements

willfulness under

Appeals

Circuit,

to

5322, and

adopt a

and even

that court

one's legal

duty to

(citation

and

Consequently,

if

contrary

is

that mere knowledge

enough

stating "[t]he only

interpretation

we conclude

quotation

that Ratzlaf
_______

establish

Court of

is the

allows reckless

support a conviction

internal

to

First

disregard of

for structuring")

marks

omitted).

implicitly held

that

a reckless

disregard of

one's legal duties

under the

reporting requirements is not enough to establish willfulness

under

5322,

such a holding would be precisely

unanticipated,

alluded

to

"out of

the

in Weiner.
______

We

blue" Supreme

therefore

the type of

Court ruling

must proceed

we

to our

interpretation of the scope of Ratzlaf.

_______

In Ratzlaf the trial court instructed the jury that

_______

it

could convict

even

if it

found

knowledge of the anti-structuring

purpose of circumventing a

the defendant

hold

bank's reporting obligation.

that

the

"willfulness"

requirement mandates something more.

establish

that

violated"

the

no

statute but acted with the

Court stated:

We

had

defendant

To

"willfully

antistructuring law,

the

The

Government must prove that

the defendant

acted with knowledge that his conduct was

unlawful.

114 S. Ct. at 656.

-3434

In

Aversa,
______

an

en

banc decision,

we

held

that

"reckless disregard"

requirements of

of

the law

satisfied the

the structuring statute.

willfulness

984 F.2d

at 502.

In

light of Ratzlaf, Aversa remains law in this circuit only

_______ ______

if

reckless disregard

falls

within

Ratzlaf's
_______

concept

of

"knowledge."

As we

find

survey post-Ratzlaf law in

_______

one circuit which

has adopted the

the circuits, we

standard of "actual

knowledge."

United States
_____________

Cir. 1994).

Other circuits -- none of whom, pre-Ratzlaf, had

_______

required

echoed

any knowledge

v. Retos, 25 F.3d 1220,

_____

of structuring

Ratzlaf's requirement
_______

helped by

of

laws --

"knowledge."

these decisions, for we face

1230 (3d

have simply

We are

not

a different problem:

having previously articulated a

standard which posed what we

deemed essentially an

equivalent to "knowledge," and

while

Ratzlaf,
_______

recognized

in

was

neither

which,

embraced

nor

disavowed, shall we proclaim it now alive or dead?

In short, when should

of

a word

used in

circumstance that

a Supreme

was not

we apply the literal meaning

Court decision

to

in controversy before

a generic

the Court?

We begin with the general advice of Chief Justice Marshall in

Cohens v. Virginia, 6 Wheaton (19 U.S.) 264, 399-400 (1821):

______
________

It

is

maxim,

not

to

be

disregarded, that general expressions, in

every

opinion,

connection
expressions
the

case,

are

to

with the case

are used.
they

may be

be

taken

in

in which those

If they go beyond
respected,

but

-3535

ought not to
subsequent

control the
suit when

judgment in

the very

point is

presented for decision.

An

application

instant case, occurred in

126, 132-34

(1944), where,

of

this

maxim,

relevant

Armour & Co. v. Wantock,

____________
_______

to the

323 U.S.

notwithstanding a definition

of

"work"

in a prior Fair Labor Standards Act case as "physical

________

or mental exertion
___________________

employer," the

. .

controlled

Court, through

or required

Justice Jackson, held

company's private firefighters' idle or recreational

duty constituted working time.

by

the

that a

time on

Justice Jackson explained:

[W]ords of our opinions are to be read in

the light of the
discussion.

To

reasonable bounds

facts of the case under

keep

opinions

precludes writing into

them every limitation or

might be suggested
of cases

within

variation which

by the

circumstances

not before the Court.

General

expressions transposed to other facts are

often misleading.

Id. at 133;
___

see also Reiter v. Sonotone Corp., 442 U.S. 330,

___ ____ ______
______________

341 (1979) (refusal to limit "business or

in

of

Clayton

Act,

to

property," as used

"commercial

interests

or

enterprises," though so defined in prior Court opinion).

These

acknowledgement

and other

such

that "[p]rudence

cases

also

reflect the

Court's

dictates awaiting

case in which the issue was fully litigated below, so that we

will have

the benefit of

and lower

court opinions squarely

Yee v. Escondido,
___
_________

503 U.S.

developed arguments on

addressing the question."

519, 538 (1992).

-3636

both sides

Our

position

naturally follows:

opinions to

"[W]e do not

contain holdings

discuss

and which,

Sweeney
_______

v. Westvaco Co., 926

_____________

normally take Supreme Court

on matters the

presumably, the

Court did

parties did

F.2d 29,

not

not argue.

40 (1st

Cir. 1991)

(Breyer, C.J.) (citing Cousins v. Secretary of the U.S. Dep't

_______
___________________________

of Transp., 880 F.2d

__________

We

might, if

therefore adopt

writing

interpretation

603, 608 (1st Cir. 1989) (en banc)).

on a

a restrained

clean slate,

of "knowledge," we

that the Court has

role.

While we

accept the

narrowest

will not

easily conclude

rejected our prior decision

by ambiguous

inference

or opaque implication.

We would

require a clear

signal.

We now

knowledge"

look for

is

acquaintance

the

word

with a fact.

in formulating instructions

fact

that the prosecution

this does not relieve us of

decision.

signals.

The

itself

--

case for

"actual

expressing

direct

This has the virtue of simplicity

to a

jury.

in our

We

note, too,

case conceded

our obligation to make a de novo

were on points other than

of reckless disregard and knowledge-willfulness.

note

dissent's

error, but

We do take cognizance that in Ratzlaf, the Court's

_______

references to Aversa
______

take

the

of

the

charge

majority's

that

the

failure

Court's

to

the equation

And we also

respond

to the

decision repealed

the

"reckless disregard" standard of Aversa.

______

-3737

Looking

that

the

for contrary

referent

"knowledge."

"Actual

used

most

indications, we

often

knowledge" was

by

the

used by

note first,

Court

was

the majority

only

once,

in a

Circuit case.

114

Warren, 612 F.2d

______

Ratzlaf
_______

parenthetical

S. Ct. at

reference to

1980 Fifth

660 (citing United States v.

______________

887 (5th Cir. 1980)).

On the other

hand,

cites to a number of other cases requiring less than

actual knowledge.

See, e.g., id. (citing cases demonstrating

___ ____ ___

the use of reasonable inferences to find knowledge).

Moreover, we find

to

Aversa
______

requirement

disregard"

as

the

only

-- and, while

standard along

adverse comment or caveat.

majority's

a generally favorable

case

opposed

to

a footnote quoted

with

"knowledge,"

See id.
___ ___

failure to take up the

reference

no-knowledge

our "reckless

there was

no

We do not ascribe to the

gauntlet on the dissent's

thrust on Aversa as deliberate decision making.

______

But beyond comments in

mindful of

in

the wider scope given

cases and statutes.

U.S.C.

656 (bank

funds) have

the Court's opinion, we are

definitions of "knowledge"

For example, the

officer who "willfully

generally held

cases applying 18

misapplies" bank

reckless disregard

the requisite intent to defraud.1

to establish

These holdings come

close

____________________

1.

We have

so held in United States v. Cyr, 712

______________
___

F.2d 729,

732 (1st Cir. 1983), and in United States v. Fusaro, 708 F.2d
_____________
______
17,

21 (1st

injure

the

interest.

Cir. 1983).
bank

with

Other
reckless

circuits equate
disregard

of

intent to
the

bank's

See, e.g., United States v. Hoffman, 918 F.2d 44,

_________ _____________
_______

-3838

to

equating,

if

not

reckless disregard.

We

precisely

doing

so,

knowledge

can make the same comment

and

about the

Supreme Court precedents equating the two concepts in various

federal statutes.

U.S.

128,

133

See McLaughlin v. Richland Shoe Co., 486

___ __________
_________________

(1988)

("willfulness"

under

Fair

Labor

Standards Act means defendant "either knew or showed reckless

disregard

for

the

matter

of

whether

its

conduct

was

prohibited by the statute"); Transworld Airlines v. Thurston,

___________________
________

469

U.S.

111,

126

(1985)

Discrimination in Employment

United States
______________

v.

("willfulness"

under

Act; same definition

Murdock,
_______

290

U.S.

389,

Age

applied);

395

(1933)

("willfulness" under the Revenue Acts of 1926 and 1928, which

prohibited

"willful" failure

included "careless disregard

to

pay

a particular

[for] whether or not

tax,

one has a

right so to act.")

In

U.S.C.

the context

1001,

false

defendant demonstrated

of

the False

statement

a reckless

Statements Act,

is made

disregard

knowingly

18

if

of the

truth,

with a conscious purpose to avoid learning the truth.

United
______

States v. White, 765 F.2d 1469, 1482 (11th Cir. 1985); United
______
_____
______

States
______

v. Evans,
_____

statutory

559

equating

found in the

F.2d 244,

of knowledge

246

(5th Cir.

and reckless

definitions contained in the

1977).

disregard is

False Claims Act,

____________________

46 (6th Cir. 1990);

United States v. Hansen, 701

_____________
______

F.2d 1215,

1218 (7th Cir. 1983); United States v. Thomas, 610 F.2d 1166,
_____________
______
1174 (3d Cir. 1979).

-3939

31 U.S.C.

false or

The

3729,

fraudulent claim

definitions

person who,

disregard

proof

which prohibits

to the United

of "knowing"

with respect

"knowingly" presenting

and

States Government.

"knowingly"

to information, "acts

apply to

in reckless

of the truth or falsity of the information, and no

of specific intent to defraud is required."

31 U.S.C.

3729(b)(3).

There are also state cases

where knowledge

of falsity is equated

and recklessness."

App. 1992); see

___

involving fraud actions

with "utter disregard

Singh v. Singh, 611 N.E.2d 347, 350 (Ohio

_____
_____

also James
____ _____

v. Goldberg, 261
________

A.2d 753,

758

(Md. 1970)("reckless indifference" can impute knowledge).

Beyond these instances of the elastic boundaries of

"knowledge,"

drawing too

jury

"could

we are

sensible of

fine a line.

infer

avoided learning

the practical

problems of

We have accepted the

fact that a

knowledge

if

about the reporting

defendant

requirements."

States v. Bank of New England, N.A., 821

______
__________________________

Cir.

consciously

United
______

F.2d 844, 855 (1st

1987) also cited with approval in Ratzlaf, 114 S.Ct. at

____ _____ ____ ________ __ _______

663 n.19.

in this case

substantial

But reckless disregard also, as

stated, "involves the conscious

risk."

To this

the court below

the instructions

disregard of a

added that the

jury "may consider the frequency with which the defendant was

involved in transactions which

might be reportable . .

. ."

When we carefully scrutinize these instructions and note that

-4040

not

merely

the concept

of

recklessness

is involved,

but

reckless disregard, we must acknowledge that the instructions

require

some

kind

of an

awareness

of

law

which is

not

casually or negligently but recklessly disregarded.

So,

while

we

sympathize

interpret Ratzlaf
_______

as requiring

see such a clear

signal as would

demise

of

instruction

Aversa.
______

We

was a

correct

hold

with

those

who

actual knowledge, we

would

do not

cause us to pronounce

that

the

application of

district

the

court's

Aversa, and
______

not

error under Ratzlaf.

_______

We, therefore,

affirm London's

convictions

for failing

to

file CTRs.

D.
Sufficiency of the Evidence as to the Money Laundering
D.
Sufficiency of the Evidence as to the Money Laundering
_____________________________________________________________

and
and
___
RICO Counts
RICO Counts
___________

London asserts that there was insufficient evidence

to support

his money laundering

sufficiency

arguments

are

and RICO convictions.

threefold:

(1)

there

His

was

insufficient evidence that he laundered money with the intent

to

promote

illegal

evidence that

cognizable

evidence

gambling;

the enterprise

under

of a

nexus

racketeering acts

illegal debts.

RICO;

(2)

there was

alleged in the

and

(3)

between the

there

RICO

was

rational jury drawing

indictment was

insufficient

enterprise and

involving extortion and the

Our

insufficient

the

collection of

review of the record persuades us that a

reasonable inferences could have

-4141

made

the

e.g.,
____

challenged findings

United States v.
_____________

Cir. 1994) (setting forth

beyond

a reasonable

Tuesta-Toro, 29 F.3d
___________

doubt.

See,
___

771, 776 (1st

standard of review for sufficiency

challenges), cert. denied, 115 S. Ct. 947 (1995).

_____ ______

1. Money Laundering
1. Money Laundering
____________________

The money laundering statute under which London was

convicted

subjects

to

criminal

sanctions

"[w]ho[m]ever,

knowing that the property involved in a financial transaction

represents the

proceeds of

conducts or attempts to

which

in fact

unlawful activity,

conduct such a financial transaction

involves the

activity . . . with the

____ ___

[the]
___

some form of

proceeds of

specified unlawful

intent to promote the carrying on of

______ __ _______ ___ ________ __ __

specified unlawful
_________ ________

activity."
________

(1)(A)(i)

(emphasis added).

language,

London

contends

Seizing

that

18

U.S.C.

upon the

there

was

1956(a)

highlighted

insufficient

evidence that he conducted his check-cashing business with an

intent to promote the

unspecified unlawful activity at issue

-- i.e., illegal gambling.

There

We disagree.

was overwhelming evidence that London failed

to file CTRs prior to the December 17, 1986, execution of the

search

warrant at Heller's, and that London was aware of the

reporting requirements

to

file

CTRs.

during the period in

There

unorthodox

operating

customers.

Finally,

also

was

procedures

there

evidence

benefitted

was evidence

-4242

which he failed

that

London's

his

bookmaker

that London

made

money with every check

he cashed.

Thus, there

was evidence

that London knowingly operated

his business in an unorthodox

manner

his

that

benefitted

(derivatively) himself.

both

bookmaker

customers and

In our view, this evidence of mutual

interest is more than sufficient to sustain an inference that

London operated his check-cashing business with the intent to

promote the

illegal gambling businesses operated

by certain

of his customers.

We

was

therefore reject

insufficient evidence

convictions.

2. The Enterprise
2. The Enterprise
__________________

to

London's argument

support his

that there

money laundering

The

RICO statute

associated

with"

conducting

the

enterprise's affairs

U.S.C.

1962(c).

was

association

Heller's

--

proprietorship.

sufficient

one

statutorily-defined

racketeering activity

an

prohibits

or collection

The

"employed by

"enterprise"

"through a

between

corporation

London

evidence to

London's

--

and

questions

sustain a

from

pattern of

of unlawful debt."

enterprise alleged in the

Cafe,

&

whether

finding that

18

indictment

Inc.,

or

--

d/b/a/

sole

there

was

the alleged

enterprise was cognizable under RICO, arguing that (1) a RICO

enterprise cannot

be an

association of legal

entities; (2)

the enterprise did not have a "common or shared purpose which

animates those associated with it" and did not "function as a

-4343

continuing

from

unit" with

that

racketeering

inherent

in

activity," see
___

F.2d 647, 665 (8th

cert. denied,
_____ ______

an "ascertainable

the

conduct

structure distinct

of

United States v.
______________

pattern

of

Bledsoe, 674
_______

Cir.) (internal quotation marks omitted),

459 U.S. 1040

(1982); and (3)

the enterprise

was not distinct from

London himself.

We do not

find these

arguments convincing.

London's first argument is legal.

states

that the term

The RICO statute

"`enterprise' includes any individual,

partnership, corporation, association, or other legal entity,

and

any union

although

or group

not a legal entity."

contends that, under

must

be

an

individuals associated

18 U.S.C.

a plain reading

association-in-fact RICO

here

of

1961(4).

London

of this provision,

enterprise such as the

association of

in fact

individuals,
___________

an

one alleged

and

cannot

include legal entities.

London's argument has been addressed to a number of

circuit

courts, and each has rejected it.

See, e.g., United

___ ____ ______

States v. Console,
______
_______

denied,
______

F.3d

13 F.3d

641, 652 (3d

Cir. 1993),

cert.
_____

114 S. Ct. 1660 (1994); United States v. Blinder, 10

_____________
_______

1468, 1473 (9th Cir.

1993); Atlas Pile Driving Co. v.

_______________________

DiCon Fin. Co., 886 F.2d 986, 995 n.7 (8th Cir. 1989); United
______________
______

States v. Perholtz,
______
________

denied,
______

488 U.S.

842 F.2d 343, 352-53

821

(1988).

And we

(D.C. Cir.), cert.

_____

recently indicated,

without explicitly considering the issue, that an association

-4444

between two legal entities and two individuals can constitute

a RICO enterprise.

(1st Cir. 1995).

Libertad: two
________

an

See
___

Libertad v. Welch, 53 F.3d

________
_____

Today we make explicit what

or more legal entities can

___

association-in-fact

RICO

we implied in

form or be part of

enterprise.

We

think

Perholtz panel explained why rather well:

________

[RICO] defines

"enterprise" as including
_________

the various entities specified;

of

entities

exhaustive.

is
"There

not

meant

is no

428, 444

the list
to

be

restriction

the

upon

the

associations

definition

. . .

Turkette, 452
________

."

embraced by

the

United States
_____________

v.

U.S. 576, 580

the contrary, Congress has

to

construe

(1981).

instructed us

RICO "liberally

. .

effectuate its remedial purposes."

L.

91-452,

(1970)

904(a),

(reprinted
_________

On

84 Stat.

in note
__ ____

to
Pub.

922, 947

following 18
_________

U.S.C.

1961), quoted
______

U.S. at

587; accord Sedima, S.P.R.L. v.

______ _________________

Imrex Co., 473 U.S.

__________
[The]

in Turkette,
__ ________

452

479, 497-98 (1985).

restrictive interpretation

of the

definition of enterprise would contravene

this principle of statutory construction.
[The restrictive] reading of section
1961(4) [also] would

lead to the bizarre

result that only criminals who

form

corporate

shells

to

failed to
aid

their

illicit schemes could be reached by RICO.

The

interpretation

Congress'
RICO

as

remedial
a

hardly accords
purposes: to

weapon

sophisticated racketeer as

with
design

against

the

well as

(and

perhaps more than) the artless.

842 F.2d at 343.

We

therefore

association-in-fact

reject

London's

RICO enterprise

legal entities.

-4545

argument

cannot be

that

an

comprised of

London's second argument presumes that this circuit

has adopted the test established in Bledsoe, 674 F.2d at 665,

_______

and set forth above.

not

do

so today,

See supra at 40-41.

___ _____

because even

test's applicability,

if

We have not and do

we assume

arguendo the
________

there was ample evidence

for the jury

to have found that its requirements were met.

The

or shared

doing

jury could have found

purpose animating both the

commerce with (and

engaged

that there was a common

enterprise and London:

thereby profiting from) bookmakers

in illegal gambling.

The evidence that London as an

individual pursued such a scheme is overwhelming and does not

need

repeating.

principal means by

Moreover,

M &

and Heller's

which London effectuated

were

his plan.

the

The

jury reasonably found that London used

M & L to launder (for

a profit) the proceeds of illegal gambling for

customers,

and could

have found

afforded by Heller's to shield M &

that he

used

his bookmaker

the privacy

L from close scrutiny, to

arrange meetings between Ferrara and his bookmaker customers,

and to collect "rent" for Ferrara.

The jury also could

functioned

structure

pattern

as a

continuing

distinct from

have found that the enterprise

unit and

had an

that inherent in

of racketeering activity.

ascertainable

the conduct

of a

As to the latter of these

two requirements, M & L and Heller's were legitimate entities

that did a significant amount of business completely separate

-4646

from the pattern

case.

&

of racketeering activity

at issue in

this

Heller's was a bar where drinks and food were sold.

L was

a check-cashing

business

-- located

inside of

Heller's and operated by the same individual who ran Heller's

--

that

cashed checks

for customers

willing

to pay

it a

commission.

reasonably

As to

the former

Heller's customers;

& L's

purpose:

could

have surmised that M & L and Heller's operated as

a symbiotic unit (M & L

requirement, the jury

providing a ready source of cash for

Heller's customers taking advantage of

convenience), and

that they

existed for

a common

the economic gain of London.

We

therefore reject

London's

argument

that

the

Bledsoe standard has not been met in this case.

_______

London's third argument derives from

the fact that

"[w]e have consistently interpreted [RICO's] requirement that

culpable person be

RICO

double

enterprise as

duty

as

`employed by

meaning that

both

the

RICO

or associated

with' the

the same entity

cannot do

defendant

and

the

RICO

enterprise."

Miranda
_______

v. Ponce Fed. Bank, 948

________________

(1st Cir. 1991) (quoting

that he, the

18 U.S.C.

defendant named in

F.2d 41,

1962(c)).

44

He contends

the indictment, is

legally

indistinguishable from M & L and Heller's.

His argument overlooks the fact that M &

sole proprietorship, had at

L, though

least one employee other than

-4747

himself, and the fact that Heller's

was incorporated and had

several employees other than himself.

No more is required to

establish the separateness required by RICO.

As Judge Posner

explained in responding to a similar argument:

If the one-man band incorporates, it gets

some legal protections from the corporate
form, such
is

as limited liability;

just this

illegal

sort

activity

pierce.

that

A one-man

incorporate,

of legal

that

proprietorship,

band

and it

shield for

RICO

tries

that does

merely operates
gains

no

to
not
as a

legal

protections from the form in which it has

chosen to

do business;

the man

and the

proprietorship really are the same entity

in

law and

employees

fact.

But

or associates,

is distinct from

if the

man has

the enterprise

him, and it then

makes

no difference, so far as we can see, what

legal form

the

enterprise takes.

The

only important thing is that it be either

formally (as when there is incorporation)
or practically (as when there
besides

the

proprietor

organization)

are people

working in

separable

from

the
the

individual.

McCullough v. Suter, 757 F.2d 142, 144 (7th Cir. 1985).

__________
_____

We therefore

the

RICO enterprise

indistinguishable.

reject London's argument that

alleged in

the indictment

he and

are legally

-4848

3. Nexus between Enterprise and Racketeering Acts

3. Nexus between Enterprise and Racketeering Acts
__________________________________________________
Involving Extortion and the Collection of Illegal
Involving Extortion and the Collection of Illegal
___________________________________________________
Debt
Debt
____

London's final argument is

between

the enterprise

that there was no nexus

and the racketeering

acts involving

extortion and

the collection

therefore must set his

and do

not reach

of illegal

debt, and

RICO convictions aside.

this argument.

As we

London's RICO convictions are sustainable

We

that we

need not

have pointed

out,

so long as we

can

tell with certainty that the jury found that he committed two

sufficient predicate acts.

897 F.2d at

1198).

See supra at 39 (quoting Angiulo,

___ _____
_______

Here, the jury

sustainably found

that

London committed numerous predicate acts of money laundering.

Thus,

even if there were no nexus between the enterprise and

the racketeering acts involving

extortion and the collection

of illegal debt (an issue on which we express no opinion), we

would sustain London's RICO convictions.

III.
III.
____

For

the

reasons

stated,

district court is affirmed.

affirmed
________

-4949

the

judgment

of

the