United States v. London

STATES, Appellee, UNITED Defendant, LONDON,

Michael B.

Appellant.

No. 93-1898. Appeals, Court of

United States

First Circuit. 4,May

Heard 1995. Sept.

Decided Denying Rehearing and

Order Rehearing En Banc

Suggestion 20, 1995.

Oct. Chelsea, Katz, MA,

Henry appel- for D. lant. whom, Goodman, Attorney,

Nina S. Kris, Attorney, Department of David Jus- S. Section, tice, Division, Appellate Criminal DC, Stem, Washington, Donald K. United (or Chaitowitz, payable to the bookmakers bookmakers’ Assis- Attorney, Dina M. States cashing agents) who were them. Others Attorney, Michael tant States United Attorney, out either to fictitious names Kendall, were made States Assistant United persons or entities who were not to MA, appellee. to real Boston, were on brief asked the funds. London neither receive COFFIN, CYR, Judge, Circuit Before on checks he cashed nor about the names BOWNES, Judge, and Senior Senior Circuit required that the checks endorsed. And be Judge. Circuit 17,1986 day on which December before —the agents a search federal executed warrant BOWNES, Judge. Senior Circuit Heller’s, at 1231—London never see infra part spanned better trial that After a notifying the Internal Revenue filed a CTR months, jury convicted defendant- of two (“IRS”) many currency trans- of his Service conspiring to B. London of appellant Michael $10,000. involving actions more than See actually conducting the affairs of conduct and 5313(a) (requiring financial institu- of racketeer- enterprise through pattern a an report currency transactions in the tions to (“RICO conspiracy” and “RICO ing activity Secretary prescribed manner substantive”), money laundering, failing to 103.11(i)(3) Treasury) and 31 C.F.R. (“CTRs”), currency reports file transaction (eheck-casher institution) is a financial and extortion, aiding commit and conspiring to 103.22(a)(1)(financial institutions C.F.R. Subsequent to the abetting and extortion. currency involv- report must all transactions verdict, pleaded guilty jury London also to IRS). $10,000 ing than to the more crimes, London was tax evasion. For his operating a procedures imprisonment months’ and sentenced to 188 to Not boon his bookmaker customers. addition, $500,000. agreed In he fined provide did London these customers with $865,000. forfeit cash to immediate and untraeeable source of challenges con- appeal, In London this gam- pay expenses (including their various victions, arguing that the district court erred: winnings), accept blers’ he enabled them to (1) failing suppress in certain evidence This, from their own customers. checks conviction; to his counts of relevant turn, volume, for the abili- increased business jury regarding instructing the on the law ty pay gambling debts check encour- CTRs; failing failure to file gamblers larger aged to make and more grant judgment acquittal a his motion for frequent bets. It also made it easier for out- money laundering and RICO counts. on the gamblers local of-state to do business with carefully considering parties’ argu- After bookmakers, possible gamblers for some ments, we affirm. (and pay company funds there- debts with they by gamble money paid with on which no I. taxes). Background A Factual bookmaking promotion often (“Hel- operated London Heller’s Cafe form. London took more active ler’s”), Chelsea, Massachusetts. He bar bookmaking operation operated a with one service, check-cashing known as M also ran a Kenny helped He also run one Do- Miller. (“M L”), L & out of a small & Associates bookmaking operation minic while Isabella’s charged area in the bar. M & L its enclosed Finally, ill. London acted as a Isabella was customers a 1% or 1.5% commission on each many “pay and collect” man for of his book- Both and M L had check cashed. Heller’s & customers, making payments maker to win- employee other than London. least one payments ning gamblers collecting from at trial demonstrated that evidence losers. frequent bookmakers tended to Heller’s and Ferrara, check-cashing to use M & L as a service. London also assisted Vincent Sometimes, organized group, crime in col- M & L cashed bookmaker checks leader of an (i.e., money) accept. example, lecting protection from would not For “rent” banks out nor London identified certain some checks were neither made bookmakers. Ferrara, teliing customers to dence derived from interceptions his bookmaker these “anybody get you get.” against I introduced him London then at trial. to Heller’s to summoned bookmakers 17, 1986, On agents ap- December federal Ferrara, they meet with who demanded plied magistrate judge to a for a warrant (or anywhere pay him from to $1000 $500 authorizing them to search Heller’s for evi- more) per “protection” help month for gambling, dence of unlawful loansharking, pay- debt collection. London collected rent narcotics, money laundering, distribution and, once, passed along ments at least magistrate and failure to file CTRs. The request for debt collection assistance from a warrant, judge authorizing issued the accept bookmaker who had been induced to agents Cafe, to search “Heller’s which occu- protection. Ferrara’s pies the first floor and basement of 110 Chestnut Street” and to seize “books and above, As stated filed a CTR never records, ledgers, notes, correspondence, prior IRS the execution slips, any documents, checks and other in- warrant on search December records, cluding bank which reflect unlawful 18,1986, through From December December gambling, loansharking, narcotics distribu- 31, 1988, however, he filed CTR’s on tion, currency and failure to file transaction Although behalf of M & L. London had reports; currency and U.S. which constitutes instructed his customers to make certain that proceeds agents of these offenses.” The exe- $10,000, each check was for less than London seized, day, cuted the warrant later that and cash individual cheeks that were in did alia, inter all almost of the records found in $10,000. greater amounts than he When the enclosed area from operat- which M & L group cashed cheeks for the same cus- ed. Evidence seized in the course of this tomer, deposit London would often the against search was introduced London tri- days checks on different or in different bank al. accounts. There was testimonial evidence 11, 1990, April On grand jury a federal tending to indicate that London was aware of charging returned a two-count indictment statutory regulatory reporting the and re- May London with income tax evasion. On quirements during period the in which he 10, 1990, grand jury fifty-one the returned any failed to file CTRs with the IRS. superseding charging count indictment Lon- with, alia, don inter the counts of conviction: History B. Procedural conspiracy, one count of RICO 18 U.S.C. 1962(d); substantive, § one count of RICO 28, 1986, response On October to an 1962(c); § money twelve counts of U.S.C. application pursuant and affidavit made to an 1956(a)(1); § laundering, 18 U.S.C. twelve London, on-going investigation of his busi- CTRs, failing counts of to file 31 U.S.C. nesses, associates, and his the district court 5313(a) 5322(b); §§ conspir- and one count of authorizing govern- issued two orders the 1951; extortion, ing § commit 18 U.S.C. ment to conduct electronic surveillance at extortion, aiding abetting two counts of and authorized, Heller’s. The first order for a 1951; §§ 2 and and count of U.S.C. one thirty-day period, interception the of oral 1985, year for tax tax evasion 26 U.S.C. adjacent communications to the en- 5, 1991, § September grand 7201. On the operated; L closed area which M & jury superseding returned second indict- authorized, thirty-day peri- second also for a charged no new offenses ment which but od, recording of wire communications brought purview the indictment within the telephones made from two located behind the Sentencing the United States Guidelines interception bar. In order to minimize the alleged extending period of the RICO communications, non-interceptable otherwise conspiracy to after November 1987. the court’s orders limited surveillance to 17,1992, targets investiga- August oral- times when named On the district court premises. ly previously-filed tion on Decem- motion to Heller’s On denied London’s 8, 1986, during suppress ber the court extended each of the the evidence seized the De- 17, 1986, Au- thirty days. orders for an additional Evi- search of Heller’s. On cember 1992, and disclosed extortion-related conversa- 18, issued a written ed gust paying pertaining tions —conversations to the denying London’s and order memorandum beyond scope of fruits of'“rent” to suppress previously-filed motion Ferrara — orders; the court’s the court ordered surveillance. of the electronic employed inadequate mini- January Trial commenced on procedures under mization U.S.C. February when the concluded on 2518(5); government’s applica- § guilty on the counts jury returned verdicts district court as to the neces- tion misled the The other counts above. conviction listed surveillance, in sity conducting electronic superseding indict- in the second contained 2518(l)(c). Because violation of 18 U.S.C. gov- had dismissed ment either been any argu- persuaded by are not of these or were dismissed prior to trial ernment ments, court’s we affirm the district denial addition, court at trial. the district suppression motion. money laun- jury on one acquitted 30, 1993, district dering count. On June I. Internal Authorization under appeal fol- London. This court sentenced 2516(1)

lowed. compels prosecutors Title III local II. obtain internal authorization from a statuto above, appellate ar- As set forth rily-designated Department Justice official First, groups. guments fall into three main judicial interception prior applying for a the district court’s London takes issue with 2516(1). order. 18 U.S.C. Failure to com Second, suppression of his motions. denial ply provision with this “central” of Title III challenges jury giv- instructions requires suppression of the fruits of the un counts of the sec- en in connection with the interception. authorized States v. United charging him superseding indictment ond Giordano, 505, 524-29, Third, failing London to file CTRs. (1974). 1820, 1831, noted, 40 L.Ed.2d 341 As in- sundry arguments that there was makes interception London contends that the initial money support his sufficient evidence application by was not authorized a statutori laundering and RICO convictions. We dis- ly-designated Department Justice official. arguments in turn. cuss each of London’s is London mistaken. Suppress A Denial of the Motion to the government attached to its initial of the Electronic Fruits Surveillance interception application page first the of pre two-page contends that the district court authorization memorandum 24, 1986, by denying suppress pared motion to the on William F. erred October Weld, Department’s electronic surveillance conducted then the Justice Assis fruits the Attorney tant Divi at Heller’s in 1986. He claims that the afore- General for the Criminal sion, page ran afoul III of the cover letter mentioned surveillance of Title the second memorandum, accompanied Control and which the Weld the Omnibus Crime Safe 1968,18 seq. signed by §§ D. Streets Act of U.S.C. 2510 et which was for Weld Frederick (“Title III”) Hess, gov- Department’s federal statute that the Justice Director of —the ways: Operations the erns electronic surveillance —in five the Office of Enforcement (1) Department desig- undisputed official Division. It that no Justice Criminal 2516(1) § statutorily-designated nated in 18 had authorized was a official and U.S.C. Weld Attorney apply rejecting sup the local United States for Hess was not. London’s orders; motion, interception pression court that the initial the orders the district found improperly government interception applica to moni- had authorized the allowed the Weld (as stated) money relating application tor launder- tion had and that conversations collating ing, which not an offense for which “the committed a error was ordered, by providing page approval interception could be see 18 U.S.C. one of the Weld 2516(l)(a)-(o), by interception page separate § on letter followed two of a the date Mueller, issued; government intercept- orders letter written Hess to Robert S. III, Attorney any investigative for the Acting United States law enforcement officer of the United States as defined in District of Massachusetts.” 2510(7) of Title Section United States dispute accuracy London does not Code. “collating finding; the district court’s error” disagree finding that would nor does he Finally, nothing in page the text of either if application validate the the district papers presented to the district court beyond empowered was to look the face Hess, remotely suggests even that and not application deciding there had whether Weld, application. authorized the Relying proper been authorization. on Unit reject We therefore Chavez, ed v. States interception application initial (1974), 40 L.Ed.2d 380 and United statutorily-designated authorized O’Malley, 764 F.2d 38 Cir. States Department Justice official. 1985), argues finding he instead government’s application cannot save the be Interception of Conversations Relat- limited to a cause the district court was ing Money Laundering analysis” “facial of the authorization deter statutorily-designated mining whether a offi specifies III Title the offenses for approved interception applica cial had interception may which an order issue. 18 if his construction of Chavez and tion. Even 2516(l)(a)-(o). § Money laundering U.S.C. (an O’Malley on which we is correct issue speci in violation of 18 1956 was so express significant opin doubt but no formal by legislation fied that became effective Octo ion), analysis facial London advocates I, 99-570, ber 1986. Pub.L. Title not Hess—autho reveals Weld—and 1365(c), 27, 1986, Oct. 3207-35. Stat. interception application. rized the noted, argues As that the initial in entirely argument hinges on the terception interception orders authorized the signed fact that on behalf of Weld the Hess relating money of conversations launder page authorizing of the miscollated second ing prior money to the date on which laun interception papers that were attached to the 2516(l)’s dering was added to 18 U.S.C. list neglects application. What it to take into arguendo if of offenses. Even we assume account, however, signed is that Weld interception initial orders did autho page, top first which states at the that it is a relating interception rize the of conversations Weld, memorandum from ‘William F. Assis- money laundering in violation of 18 U.S.C. General, Attorney Division.” (a tant Criminal § position govern with which the 1956 Furthermore, clearly page that same first forcefully disagrees ment and on which we Attorney indicates that the Assistant General position), argument lacks a take no Weld) (i.e., charge in of the Criminal Division factual basis. application: authorized the that the district court’s ini- London claims By authority in him virtue vested 24, interception tial orders issued on October 18, by Section 2516 of Title United States days money laundering three before Code, Attorney General the United predicate became a offense under U.S.C. 1088-85, dat- States has Order Number 2516(1). reveals, however, § The record 28,1985, specially designated ed March interception the initial orders issued on Octo- Attorney charge Assistant General in Thus, 28, 1986, 1986. ber not October applica- to authorize Criminal Division money laundering in violation of 18 U.S.C. authorizing in- tions for court orders intercep- § 1956 was an offense for which an terception of wire or oral communication. at the time of the tion order could issue duly appointed Attorney As the Assistant in interception initial orders issued this case. Division, charge General in of the Criminal reject power this is exercisable me. We therefore WHEREFORE, interception authorized acting delegat- this that the initial orders under relating to hereby interception of conversations power, ed I authorize the above- money money laundering when application to be time [London] described made gambling predicate operating under business vio- laundering was not a offense fense — 2516(1). specified § § in the lation of 18 U.S.C. U.S.C. 1955— initial authorization orders. The victims of Interception of Extor- and Disclosure scheme were bookmakers the rent/extortion Conversations tion-Related illegal gambling, and the inter- involved cepted provided a conversations means exceptions, prohibits Title III certain With Moreover, identifying them. the district interception and disclosure of conversa- supportably found that there was no relating those to the of- tions other than subterfuge interception involved the initial court’s inter- specified fenses in the district applications. Angiulo, 847 F.2d at generally See ception order. See 18 U.S.C. (clear-error 2518(4)(c). noted, applicable 2511, 2517, reviewing standard §§ As wrong- finding government’s wiretap application argues government that the all, Extortion, fully intercepted subterfuge). and disclosed certain extor- after (i.e., tion-related conversations conversations an enumerated offense under 18 U.S.C. Ferrara) concerning paying § of “rent” to and there would have been no need despite the fact that the district court’s initial government engage subterfuge for the interception specify did not extortion orders suspected taking it that extortion was unless target in violation of 18 U.S.C. 1951 as a place probable but lacked the cause neces- governmental London’s claim of offense. sary intercept pertaining conversations overreaching in this context is without merit. argument along extortion. London makes no lines, suggest these and the record does not arguments, London’s first two Unlike governmental deception. this sort of faulty upon the instant one is not built government’s interception of the “rent” con- basis; factual extortion in violation of 18 versations was therefore not unlawful. target 1951was not a offense listed government’s interception applications in the still must consider whether the interception or the district court’s orders. government unlawfully disclosing acted alone, though, This fact does not make the during proceed the rent conversations interception of the “rent” conversations un ings government argues below. The that the clearly contemplates lawful. Title III disclosure of such “other offense” evidence is will, in law enforcement officials the course of permissible long so as the information is intercepting speci conversations related to related to an offense listed in the initial offenses, target intercept fied conversations authorization orders. United States v. Cf. “relating speci to offenses other than those (7th Cir.1993) Shields, approv fied in the order of authorization or (“Since was free to release 2517(5). example, al.” For See U.S.C. grand jury anyway this information to a un intercepted an conversation can relate to der the for the offenses listed [authorization specified unspecified both a offense and to an order], in the III it Title is difficult to see situation, interception offense. In such a how the defendants were harmed when the is unlawful when it is motivated presented same facts were the context purpose e.g., “subterfuge” intercep illicit — - offenses.”), denied, different cert. U.S. government applies tions where the to inter (1994). -, 515, 130 L.Ed.2d cept relating speci conversations to offenses argu We need not reach the merits of this 2516(l)(a)-(o) § fied 18 U.S.C. while in ment, however, because we conclude that the tending intercept relating conversations judge intercep district who issued the initial interceptions offenses for which are unautho impliedly permissibly tion orders autho probable rized or for which it has no cause to rized the disclosure of the conversations interception obtain an order. See United issue. Angiulo, States v. 847 F.2d Cir.), denied, cert. S.Ct. 2517(5), govern- the Under 18 U.S.C. (1988). 138, 102 L.Ed.2d 110 may blessing ment secure a court’s to dis-

Here, intercepted “rent” conver close the contents of “other offense” inter- clearly ception prosecu- sations related to at least one of- in connection with a federal complains statutory provision per- the affidavit tion. The relevant interception approval failed to has seek subse disclosure when mits quent interceptions by judge of extortion-related con approved “authorized or been versations, it jurisdiction judge where such but also failed to alert the court competent intercepted application that con- that some of the conversations subsequent finds on intercepted in offense” accor- related “other evidence. While tents were otherwise certainly gov it provisions III]. think advisable that the [Title dance with the issuing provide type made as soon as ernment courts with this application shall be Such notice, qua It is that disclo- of we note that it is not a sine practicable.” Id. settled implicitly implicit presume obtained non of authorization. authorization “can be We sure judge grants wiretap supporting renewal of a that the court read the affidavit when a care, seriously being obligation of the essential facts of with and took its after advised interceptions unspecified police taking that were violation.” United States (1st Cir.1983). McKinnon, place. require implicit 23-24 no more to infer 721 F.2d words, subsequent (supporting disclosure authorization. id. at 23 affi In other “the Cf. describing issuing judge of material davits communications related to affidavits to the constituting clearly relating ground to other other offenses sufficient to facts “reason obligation ... issuing judge ap able conclusion]” offenses satisfies Government’s proved interception); judicial authorization for the disclo- of their see also United to seek Masciarelli, (2d 1064, 1068 inadvertently and use of evidence inter- States v. sure Cir.1977) (“[W]e (citations presume ... cepted.” Id. at 24 and internal renew omitted). ing tap judge carefully ... quotation marks scruti supporting papers th[e] nized and deter denying As the district court found Lon- requirements mined that the statute’s had motion, implicit suppression there was don’s satisfied.”) (citation quota been and internal govern- in this case. When the authorization omitted). tion marks applied for extensions of the initial ment orders, interception reject its attached affidavit ad- We therefore London’s containing interceptions interception court of vised the disclosure the essential facts of the extortion violations: extortion-related conversations violated Title III. keeper

London acts as a bank and account bookmaking loansharking op- for other erations_ under Minimization illegal busi- [Also] 2518(5) nesses, and the businesses for which accounts, keeps only operate government to con- requires Title III protection with the consent and of certain way duct “in such a as electronic surveillance persons, to whom London and others other interception of communica- to minimize the percentage pay a of their income.... subject interception.” tions not otherwise is neces- Further electronic surveillance 2518(5). any specifying 18 U.S.C. Without however, sary, identify the balance conversations, intercepted Lon- wrongfully organization and the the members of each gov- inadequate don asserts that there London, relationship organi- between these intercep- during minimization ernmental zations, persons and the to whom ‘rent’ Although argu- tions at Heller’s. paid, as below. discussed disjointed, a bit two ment on this issue is inadequacies emerge from his brief: alleged The attached affidavit then detailed London’s Thus, permitting surveillance relationship with the court’s the court’s order Ferrara. target Heller’s application a named was on approval of the extension consti- whenever (instead or- finding premises of a more restrictive implicit an that the extor- tuted both (2) der); policy re- government’s intercepted were and the tion-related conversations Span- in cording all conversations carried out provisions in of Title III accordance the agent bilingual until a was permission subsequent ish unless and and for the disclosure McKinnon, In make minimization decisions. 721 available to of the conversations. See case, no circumstances of this we see F.2d at 23-24. gov- Perhaps, agent acting error in either the court’s order or the undercover as a patron, signalled] could when a tar- policy regarding [have] communications ernment’s get talking particular telephone was on a Spanish. in bugs thereby or near one of the mini- assessing govern In whether the privacy mize[d] the intrusion into the pass minimization efforts muster un ment’s persons conversing innocent at other loca- 2518(5), objec we make an der 18 U.S.C. Perhaps monitoring agents tions. could light in of the facts tive assessment monitoring have been directed to cease at government known to the at circumstances any target device a not when was heard on points in the relevant time. See Scott v. that device. States, 128, 136-37, United not, however, effectively He has rebutted the (1978). 1717, 1723, 56 L.Ed.2d 168 When assertion, government’s colorful made both assessment, making this we tend to focus on appeal, to the district court and on that “had (1) complexity suspect the nature and of the agent an undercover remained inside the crimes; thoroughness gov ed small, relay ... intimate Heller’s Cafe to a precautions bring mini ernment’s about signal every target spoke time into a sur-

mization; judicial degree su device, veillance London would have identi- pervision process. over the surveillance quickly fied him as Ali in as Baba his cave Uribe, United States spotted spy among would have his chosen Cir.1989); Angiulo, 847 F.2d at 979. We forty.” govern- Nor has he rebutted the also are mindful that Title III “agents “does not ment’s sworn assertion that interception monitoring forbid the of all nonrelevant con instructed to and did cease when versations, they targets agents but rather determined that none of the was instructs party per- [a] conversation or that conduct the surveillance such a manner as sonal, activity non-criminal was interception to ‘minimize’ discussed.” of such conver view, In our the former of Scott, these two asser- sations.” 436 U.S. at at S.Ct. respond tions is sufficient to to London’s 1724. This means that “[t]he there should have been an effort; perfec held to a standard of honest Heller’s, agent undercover inside and the attainable, usually certainly tion is not and is effectively any suggestion latter undermines Uribe, legally required.” not 890 F.2d at monitoring agents that the were free to listen in on non-targeted the conversations of indi- arguments London’s minimization do not viduals. question any specified call into acts of the challenge govern to the instead, intercepting agents; they implicate policy regarding Spanish ment’s conversa thoroughness of certain of the court’s and easily: tions is answered more in when an government’s precautions. minimization terpreter available, reasonably is not Title words, they other amount to claims that an explicitly III recording allows full-scale implicit requirement allegedly imposed on post hoc minimization conversations car government by Angiulo Uribe and —that foreign languages. ried out See U.S.C. government’s precautions bring about 2518(5) (“In intercepted the event the com sufficiently “thorough” minimization be foreign munication is in language, a code or 2518(5) pass muster under 18 U.S.C. —has expert and an foreign language case, suppres- been met this and that reasonably during code is not available intercepted sion of all conversations is the interception period, may minimization be ac remedy. appropriate if Even we assume ar- complished practicable as soon as after such guendo suppres- that London can win total interception.”). Although above-quoted challenging propriety any sion without statutory provision yet was not at effective particular interceptions, we see no merit (it interceptions the time of the here issue arguments. passed prior interceptions but thereafter), London characterizes as insufficient the went into effect its existence as “targeted court’s pending legislation individual must be on the objectively renders rea premises” by stating: government’s limitation policy sonable —which by intercept- consciousness London and others to the legislation regarding tracked — Spanish. possibility scrutiny” of law carried out enforcement ed conversations “requires London two because known refer- complex involving case a so- This was a prior engaging ences transactions defendant, complicated financial phisticated person.” making gen- with a than Other organized crime. In dealings, and links to unpersuasive argument eral and that “visual this, say that either the view of we cannot by agents” pos- surveillance undercover precautions minimization complained-of fully sible because Heller’s “was accessible to precautions minimization ordered the other rooms,” public eye” and no had “back government and taken the court London has not taken issue with the affidavit they lacking thoroughness that were so supra (noting, statements. See at 1236 in a Title III. violated context, different London’s failure to rebut reject London’s minimization We therefore government’s explanation why undercov- arguments. agents er could not insinuate into themselves Heller’s). certainly And he not has ex- Necessity under U.S.C. plained how the affidavit them- statements 2518(l)(c) may misleading. selves have been We conse- quently see no factual basis for London’s government’s Title III dictates that first and third claims. full interception application include “a not complete statement as to whether or government As to the claim that the investigative procedures other have been misleadingly availability failed disclose the why they reasonably ap- tried and failed or informants, McIntyre and DeMarco as if pear unlikely to succeed tried or to to be rebut, attempted London has not even 2518(l)(c). dangerous.” 18 be too evidence, pointing contrary the district “necessity” provi- interpreted have this We that, findings court’s at the time of the initial sion to mean that the statement should dem- application, government reasonably be government has made “a onstrate that (1) testify McIntyre lieved would not reasonable, good gam- to run the faith effort (2) London; against that DeMarco’s “in investigative procedures before ut of normal vestigatory potential ... immaterial to [was] resorting as electronic to means so intrusive investigation light Heller’s.” interception telephone calls.” United this, say findings cannot that these are Hoffman, 1306-07 States v. 882 F.2d clearly erroneous. See United States (1st Cir.1987). argues gov- that the Cir.1994) Schiavo, (findings application misled the court as to ernment’s hearing suppression fact re made after by failing for electronic surveillance the need error). findings And the viewed for clear government had not en- to mention plainly undermine London’s contention following investigative tech- gaged McIntyre’s the failure to disclose and De- (1) niques: subpoenaing London’s bank rec- investigatory potential alleged Marco’s violat ords; utilizing confidential infor- two 2815(l)(c). ed 18 U.S.C. McIntyre and John DeMar- mants —Francis reject therefore it; allegedly placing available to co— government that the misled the district agents inside of Heller’s. Lon- undercover necessity applying for initial as to when convincing. don’s claims are interception orders. first and third of London’s Suppress the the Motion to B. Denial of fathom, affidavit claims are difficult to as the During the Evidence December Seized interception application indi attached to the of Heller’s Search cated that the did review both argues district (during an unrelated London’s bank records denying suppress motion to court erred in investigation) prior applying for the inter pursuant to the Decem infiltra the evidence seized ception orders and that undercover i.e., 17, 1986, almost ber search tion was not available because “surveillance Heller’s — records, M L’s business some high degree all of & observations have disclosed records, significant currency. Heller’s business and It therefore would have been diffi- premises magistrate judge amount of cash on of Heller’s cult for the to be more day. characterizes as limiting phrasing He unconstitu- in language, the warrant’s tionally description executing overbroad the warrant’s and for the officers to have been records, discerning determining of items to be seized: “books and in more what notes, ledgers, correspondence, slips, circumstances, checks seize. similar we have documents, any including other bank stated: records, gambling, which reflect unlawful recognize ... We must that the inherent distribution, loansharking, narcotics and fail- difficulty segregating “good” in from “bad” currency reports; transaction ure file records, consequently drawing up in currency proceeds which U.S. constitutes warrant, adequately an limited it makes argues these offenses.” He also reasonably difficult for even a well-trained officials who executed the search could not officer, expected who is not legal to be a objectively have an held reasonable belief rely technician and is entitled to on the language the overbroad in the search greater sophistication magistrate— of the warrant was constitutional. Because we dis- precisely to know where to draw the line. agree argu- with the latter of London’s two Diaz, United States v. ments, repudiate assignment his of error Cir.1988) (overturning suppression order assessing constitutionality without of the warrant). an based on overbroad search warrant. Diaz, question descrip- Like whether the “suppression

It tion of items to ap- is well settled that be seized was unconstitution- ally was, best, close, overbroad propriate if the were and the officers dishonest executing preparing objectively or in officers were [the reckless affida- reason- warrant] deferring objectively magistrate judge’s vit or could not have an able to the harbored judgment. trained probable reasonable belief the existence of Leon, cause.” United States v. reject We therefore 3405, 3422, 104 S.Ct. 82 L.Ed.2d 677 during that all the evidence seized the De- (1984). Here, challenged London has not 17, 1986, cember of Heller’s should search affidavit, preparation of warrant identi- suppressed. have been any allegedly fied documents which cause, probable argued seized without Jury Regarding C. Instructions executing agents exceeded the warrant’s Failure to File CTRs scope. has Nor he asserted that there was argues that we should vacate his an probable absence of cause some sort of failing convictions for to file CTRs because warrant to Assuming arguendo have issued. erroneously district court informed the might that London sup- still be entitled to jury that London could be convicted of the pression having any without made of these proscribed by “willful” violation 31 U.S.C. arguments, inquiry our reduces to whether 5322(b) if merely he had a reckless disre description of items to be seized was so gard legal of his regarding filing duties facially objectively defective that an reason- position CTRs. The takes the able officer would have known of the war- that the court’s instructions were incorrect unconstitutionality. hardly rant’s think — States, light of v. United Ratzlaf so. —, 126 L.Ed.2d 615 description

Even if the (knowledge of items to be illegality of one’s actions is might particular, necessary seized have been more it to sustain a conviction under 31 5322) patently was not overbroad (illegal case), when viewed structuring operated context. complex opinion trial, crimi- points issued after London’s but enterprise nal mingled where he object “innocent” to London’s failure to and contends apparently-innocent documents with docu- that the plain instructions do not constitute which, fact, 52(b) (defects ments memorialized error under Fed.R.Crim.P. intermingled transactions. brought London also to the attention of the trial court error). legitimately-obtained innocently-obtained plain reviewed for London counters Supreme Court” consid would be resolved object cannot be to failure that his lodge upon incumbent London to and made it the instructions waiver because ered a objection. doing, In so an banc decision with an en complete accord Aversa, decision United States relies on our recent v. 984 States court —United of this (1st Cir.) Marder, banc) Cir.1993) (en (illegal F.3d (1st (illegal v. 48 564 F.2d 493 — — denied, U.S. -, case), U.S. —, structuring cert. vacated, 114 case), structuring 1441, (1995), (1994) 131 L.Ed.2d 320 115 S.Ct. 873, had L.Ed.2d 70 127 S.Ct. —that that defendant Marder’s prior where we indicated month a mere one handed down been § in object to a 5322 willfulness failure to case. in this jury instructions given prior inexcusa struction Ratzlaf-was waiver, we addressing of the issue Before on-point, n. is not ble. Id. at 572 5. Marder present law of the inquire must whether per argument is not government’s and the of error a determination precludes circuit suasive. objection to has not waived if London even decision, anoth matter, In a recent the instructions. Marder’s trial oc As an initial doubt as to expressed panel of this in Aversa. prior er to our decision curred alterna Aversa’s Thus, overruled compelling presented whether scenario Ratzlaf See United disregard exactly standard. mirroring tive reckless here —instructions (1st 1, Saccoccia, 14 Cir. 63 F.3d opinion of the holding States of a recent en banc 1995). only dictum. comment was But this not in that controlling circuit court —did exist panel’s necessary however, to the Saccoccia importantly, It was not Marder’s case. More challenged in that erroneously finding objection, the instruction in judge, trial without at 14 Id. plainly erroneous. with the law jury case was not in accordance structed the object). (i.e., failure to (noting knowledge defendant’s circuits the other upon relied implicitly explicitly requirements was it was all that was reporting Nor sufficient panel held the evidence 31 when the willfulness under needed to establish 5322) that the defen jury to have found despite for the the existence U.S.C. own activities were indicating that their that knowl authority dants “knew in this circuit disregard necessary 16. The reckless Id. at to establish edge illegality unlawful.” was Marder, in the Sac- played 5322, no role therefore 48 standard under see willfulness holding. therefore feel v. Bank New (citing coccia court’s n. 5 F.3d at 572 (1st impli Cir.), has question whether cert. that the F.2d England, 821 Ratzlaf re overruled Aversa edly left untouched or denied has not (1987)); the issue with mains to be decided —if our recent L.Ed.2d opinion and deci on-point panel been waived. drawal of an banc, id. ease en see the Aversa sion to hear con Addressing waiver issue we circumstances, which should these In view of object failure clude that London’s § 5322’s notice that put Marder on have of this the circumstances excusable under structuring for criterion willfulness that, despite government argues case. knowledge something more than might imply and the recency the Aversa decision deemed requirements, we reporting at the time of of the law overall state object to the failure inexcusable Marder’s any argument that trial, London has waived re We therefore instructions. Id. defective were errone instructions the aforementioned plain error. instructions viewed the acknowledging that waiver ous. While Id. inferred, plain and no error should not “be case is presented in this Supreme The situation imposed, requirement [a] where As we to that in Marder. contrast stark ruling out of the blue comes Court[] circuit was law of this explained, the have anticipated,” see United have been could not newly-minted nothing than a less Weiner, settled n. 5 States v. judge time the trial opinion at the en banc Cir.1993), that the government contends jury. This fact alone instructed other ten circuits split this and the between way, to- way, whole long if not the goes a under 31 meaning of to the willfulness as object. excusing London’s failure likely the issue wards it § 5322 “made Moreover, time, at this same requirement all eleven cir “knowledge.” We are zlaf’s implicitly cuits had at least indicated that a helped by decisions, these for we face a disregard legal reckless regarding duties problem: different having previously articu- filing of CTRs was sufficient establish posed lated a which standard what we Ratzlaf, willfulness under 31 U.S.C. 5322. See essentially deemed equivalent to “knowl- - 3,114 U.S. at-n. S.Ct. at 665 n. which, edge,” recognized while in Rat- (Blackmun, J., dissenting) (pointing out the disavowed, was neither embraced nor zlaf near-uniformity in the circuits that mere proclaim shall we it now alive or dead? knowledge reporting requirements is short, In apply should we when the literal 5322, enough establish willfulness under meaning of word in Supreme a used a Court stating only Appeals “[t]he Court of generic decision to a circumstance that was adopt contrary a interpretation is the First controversy not in before the Court? We Circuit, and even that court reckless allows begin general with the advice of Chief Justice disregard legal duty of one’s support a Marshall in Virginia, Cohens v. 6 Wheaton (citation conviction structuring”) and in (19 U.S.) 264, 399-400, (1821): 5 L.Ed. 257 omitted). quotation ternal marks Conse maxim, It is a disregarded, not to be quently, if we that implicitly conclude Ratzlaf general expressions, every opinion, in disregard held that a legal reckless of one’s are to be in taken connection with the case under reporting requirements duties the is in expressions which those are If used. enough not to establish willfulness under they go beyond ease, 5322, they the may such be holding a would precisely be the respected, ought but not to type unanticipated, control the of “out of blue” the Su judgment preme subsequent a ruling Court suit we alluded when the to Weiner. very point presented proceed We therefore must for decision. interpreta to our scope tion the Ratzlaf application An maxim, of this relevant to case, the instant In occurred in the trial Armour Co. court & instructed Ratzlaf Wantock, 126, 132-34, v. jury the 323 that it could convict U.S. if it 65 even found S.Ct. 165, 168-69, (1944), where, the defendant had 89 L.Ed. knowledge no 118 of the anti- not- structuring withstanding statute but a definition of pur acted the “work” in a prior pose circumventing Fair Labor reporting Act “physical bank’s ob Standards case as ligation. The Court or mental stated: exertion ... required controlled or employer,” Court, through

We hold that Justice requirement the “willfulness” Jackson, company’s private held fire- something mandates more. To establish fighters’ or duty idle recreational “willfully that a time on defendant violated” the working constituted antistructuring law, time. Justice Jackson Government must explained: prove that the defendant acted with knowl- edge that his conduct was unlawful. opinions [W]ords of our are to be read

— at-, 114 at light S.Ct. 656. of the facts of the case under keep opinions discussion. To within rea- Aversa, decision, an en banc we held precludes sonable writing bounds into disregard” “reckless of the law satisfied every them limitation or variation which requirements the willfulness of the structur- might suggested by be ing circumstances statute. 984 F.2d at In light of cases not before the Ratzlaf, Court. General Aversa remains law this circuit expressions transposed to other facts are disregard if reckless falls within Rat- misleading. often concept of “knowledge.” zlaf’s survey 133, post-Ratzlaf 168; As we Id. 65 the cir- S.Ct. at see law also v. Reiter cuits, we find 330, one circuit which adopted Corp., 341, has Sonotone 442 U.S. 99 S.Ct. 2326, (1979) (refusal standard of “actual knowledge.” United L.Ed.2d 60 931 Retos, (3d v. States F.3d Cir. limit property,” or “business as used in 1994). whom, Other Act, circuits —none of pre- Clayton to “commercial interests Ratzlaf, required any had knowledge enterprises,” though so in prior defined structuring simply laws—have opinion). Rat- echoed Court hand, Cir.1980)). (5th Rat- the other On reflect other such cases These requir- cases of other to a number cites “[p]rudenee acknowledgement Court’s zlaf See, knowledge. e.g., id. than ing less actual in which awaiting a case also dictates rea- demonstrating the use of below, (citing cases will that we so fully litigated issue knowledge). find inferences on sonable arguments developed have benefit opinions squarely lower both sides and Moreover, generally favorable find a Escondido, question.” Yee addressing the opposed only case as the to Aversa reference 1522, 1534, 118 requirement and, while no-knowledge to a — naturally (1992). position Our L.Ed.2d disregard” our “reckless quoted footnote Supreme normally take do not “[W]e follows: “knowledge,” there was along with standard holdings on mat contain opinions to Court id. We or caveat. See no adverse comment which, not discuss did ters the Court majority’s failure to do not ascribe argue.” did parties presumably, thrust up gauntlet on dissent’s take 29, 40 Co., Sweeney v. Westvaco making. as deliberate decision on Aversa C.J.) Cir.1991) (citing v. Cousins (Breyer, opin in Court’s beyond comments But Transp., 880 Dep’t U.S. Secretary of of scope given ion, mindful of the wider arewe banc)). Cir.1989) (en (1st 603, F.2d 608 and stat “knowledge” cases of definitions role. adopt a restrained therefore We 18 applying example, the For cases utes. slate, a clean writing on if might, While “willfully (bank mis § officer who 656 U.S.C. interpretation of narrowest accept funds) held generally have applies” bank easily conclude not “knowledge,” we will requisite disregard to establish reckless decision rejected prior our the Court has holdings come These to defraud.1 intent implication. opaque ambiguous inference so, doing precisely if not equating, to close signal. require a clear We would disregard. We can knowledge and reckless Supreme comment about make the same for The case signals. We now look concepts equating the two precedents Court itself —ex- knowledge” is word “actual McLaughlin See statutes. in various federal fact. with a acquaintance pressing direct 133, Co., 128, 108 v. Richland Shoe simplicity formulat- of the virtue This has (1988) 1681, 115 1677, L.Ed.2d 100 S.Ct. too, note, jury. to a ing instructions (“willfulness” Standards Fair Labor under con- in our case prosecution fact or showed “either knew defendant Act means of reheve us error, this does not ceded but of whether the matter disregard for reckless novo decision. to make a de obligation our statute”); by the prohibited its conduct that in cognizance take We do Ratzlaf Thurston, 469 U.S. v. Airlines Trans World points on to Aversa Court’s references 624, 523 613, L.Ed.2d 126, 111, 83 105 S.Ct. disregard equation of reckless other than the (“willfulness” Age Discrimina (1985) under we also take And knowledge-willfulness. Act; definition same Employment tion to respond majority’s failure of the note Murdock, 290 U.S. v. States applied); United the Court’s decision charge that the dissent’s 225, 223, L.Ed. 381 78 389, 395, 54 S.Ct. disregard” standard repealed the “reckless Acts (“willfulness” Revenue (1933) under the Aversa. “willful” 1928, prohibited a which 1926 and indications, we note contrary Looking for tax, “care included particular pay failure most often first, used referent that the has a one whether or disregard [for] less “Actual knowl “knowledge.” the Court was act.”) right so to once, majority used edge” was False State context of In the Fifth a 1980 parenthetical reference 1001, - state a false Act, at-, 18 at ments case. Circuit demon- knowingly if defendant Warren, is made ment 612 F.2d v. States (citing 660 United 44, 46 Hoffman, 918 F.2d e.g., v. States Cyr, United v. 712 held in United States We have so Hansen, Cir.1990); F.2d 701 Cir.1983), (6th v. (1st States 729, States United in United F.2d 732 Cir.1983): Cir.1983). v. 17, 1215, (7th States Fusaro, United Other 21 F.2d 1218 708 Cir.1979). (3d injure Thomas, the bank with equate intent F.2d circuits See, interest. disregard of the bank's reckless truth, disregard strated a reckless as pronounce would cause us to the demise of purpose with a learning conscious to avoid Aversa. We hold that the district court’s White, the truth. United States v. F.2d instruction was a application correct of Aver- (11th Cir.1985); United sa, States v. We, and not error under there- Ratzlaf. Evans, (5th Cir.1977). A fore, affirm London’s failing convictions for statutory equating knowledge and reckless to file CTRs. disregard is found in the definitions con- Act, tained in the False Sufficiency Claims 31 U.S.C. D. of the Evidence to the as prohibits which “knowingly” present- Money Laundering and RICO Counts ing a false or fraudulent claim to the United London asserts that there was insufficient States Government. The definitions of support evidence to money laundering “knowing” “knowingly” apply person to a and RICO sufficiency convictions. His argu who, information, respect with “acts (1) ments are threefold: there was insuffi disregard reckless falsity the truth or cient evidence that money he laundered information, proof specific and no in- promote the intent gambling; tent required.” to defraud is 31 U.S.C. there was insufficient evidence that the en 3729(b)(3). terprise alleged in the cogni indictment was There also involving are state cases fraud RICO; zable under there was insuffi knowledge actions falsity where is equated cient evidence of a nexus between the RICO disregard with “utter and recklessness.” enterprise and racketeering acts involv Singh Singh, v. 376, 81 App.3d Ohio 611 ing extortion and the illegal collection of 347, (1992); N.E.2d 350 see also James v. debts. Our review persuades of the record 520, Goldberg, 753, 256 Md. 261 A.2d 758 us jury that a rational drawing reasonable (1970) (“reckless impute indifference” can inferences could have made challenged the knowledge). beyond findings See, a reasonable doubt. e.g., Tuesta-Toro, United States v. 29 F.3d Beyond these instances of the elastic (1st 771, Cir.1994) 776 (setting forth standard boundaries of “knowledge,” we are sensible of sufficiency review for challenges), cert. practical problems the of drawing too fine - denied, -, 947, U.S. 130 a line. accepted We have jury the fact that a (1995). L.Ed.2d 890 “could knowledge infer if a con defendant sciously avoided learning about reporting the Money Laundering 1. requirements.” United States v. Bank of England, N.A., 844, (1st New 821 F.2d money 855 The laundering statute under Cir.1987) also cited approval with Ratzlaf, which London was subjects convicted - 19, 114 U.S. at-n. S.Ct. at 663 “[w]ho[m]ever, n. 19. criminal sanctions knowing also, But disregard reckless as the that property instruc involved in a financial stated, tions in this case “involves represents con transaction proceeds of some disregard scious of a substantial risk.” To form of unlawful activity, conducts or at this the court below added that jury tempts to conduct a such financial transac “may frequency consider the with which tion which in fact proceeds involves the defendant was involved in specified transactions activity which unlawful ... with the intent might reportable_” be When promote we careful- the carrying on specified [the ] ly scrutinize these instructions and that note activity.” 18 U.S.C. unlawful merely not concept 1956(a)(l)(A)(i) added). recklessness (emphasis Seizing involved, but disregard, reckless upon highlighted must language, London con acknowledge that require instructions tends that there was insufficient evidence some of an kind awareness of law which is he conducted check-cashing his business casually or negligently but with recklessly dis- an promote intent unspecified regarded. activity i.e., unlawful at gam illegal issue — bling. disagree. So, sympathize while we with those who interpret would requiring as actual There was overwhelming evidence that Ratzlaf knowledge, we do not such a signal see clear London failed to prior file CTRs to the De-

1243 individual, any partnership, includes terprise’ 1986, of the search execution 17, cember association, entity, legal or other corporation, Heller’s, that London warrant associ- during any group of individuals requirements union reporting aware entity.” legal 18 although not a failed to file CTRs. he ated fact period which 1961(4). that, un- unor- London contends evidence also was There provision, his an reading benefitted of this procedures operating plain der thodox Finally, enterprise there was such as RICO assoeiation-in-fact customers. bookmaker money ev- with alleged made here must an association that London the one be evidence Thus, individuals, evi- legal there was enti- cannot include ery he cashed. cheek operated his knowingly dence ties. manner bene- in an unorthodox

business addressed to argument has been (de- customers both his fitted bookmaker courts, and each has circuit a number of view, this evi- In our rivatively) himself. See, v. Con rejected e.g., United States it. suffi- more than interest is dence mutual (3d Cir.1993), 641, sole, cert. 652 13 F.3d inference that to sustain cient - 1660, -, denied, 114 128 S.Ct. check-cashing business operated (1994); v. Blind States 377 United L.Ed.2d gambling busi- promote the intent to (9th Cir.1993); 1468, Atlas er, F.3d 1473 10 customers. of his operated certain nesses Co., 886 F.2d v. Fin. Driving Co. DiCon Pile reject London’s We therefore (8th Cir.1989); 986, United States n. 7 sup- evidence insufficient that there was (D.C.Cir.), Perholtz, F.2d 352-53 laundering convictions. money port his denied, S.Ct. cert. (1988). recently indicat And we L.Ed.2d Enterprise issue, considering ed, explicitly without “employed prohibits one The RICO statute legal entities between two that an association statutorily-defined with” by or associated a RICO can constitute individuals and two conducting enterprise’s “enterprise” Welch, from Libertad v. enterprise. See racketeering pattern “through Cir.1995). affairs Today we make ex 18 unlawful debt.” activity or collection two or implied in Libertad: plicit what we 1962(e). alleged enterprise The U.S.C. part of an can form or be entities legal more between an association was the indictment enterprise. We RICO association-in-fact Inc., corpo Heller’s —a Cafe, London’s why d/b/a rath panel explained think the Perholtz proprietorship. L—a sole M & ration —and well: er suffi there was questions whether including “enterprise” as defines [RICO] that the a finding evidence to sustain cient the list specified; entities the various cognizable under was alleged enterprise exhaustive. meant be is not to entities (1) enterprise RICO, a RICO that arguing associa upon the restriction is no “There (2) entities; legal cannot be association by definition....” embraced tions have a “common enterprise did not 576, Turkette, 452 U.S. v. States United associ animates purpose which those shared 2524, 246 2527, L.Ed.2d 580, 69 101 S.Ct. as a it” and did “function with ated Congress has (1981). contrary, On struc an “ascertainable continuing with unit” “liberally RICO us to construe instructed the con inherent in that distinct from ture purposes.” its remedial effectuate ... activity,” racketeering pattern of of a duct 922, 904(a), 947 91-452, § Stat. 84 Pub.L. 647, Bledsoe, F.2d 674 see United States following 18 note (reprinted in omitted), (8th Cir.) (internal quotation marks 665 Turkette, 452 1961), quoted U.S.C. 1040, denied, 103 S.Ct. 459 U.S. rt. ce 2531; 587, accord at 101 S.Ct. (1982); en and 456, 74 L.Ed.2d 608 Co., Sedima, v. Imrex S.P.R.L. him from London terprise was not distinct 3285-86, 497-98, arguments con find these do not self. We (1985). in restrictive [The] L.Ed.2d vincing. enterprise of the definition terpretation of statuto principle this contravene legal. would argument is first London’s “ ry construction. ‘en- that the term states The RICO statute reading check-cashing L in- restrictive] of section was business—located [The 1961(4) operated would lead to the bizarre side Heller’s and the same [also] who who ran cashed result criminals failed individual Heller’s—that pay corporate willing shells to aid their illicit checks for customers it a com- form requirement, could be reached RICO. The mission. As to former schemes interpretation hardly jury reasonably accords with Con- could have surmised that M purposes: design operated symbiotic L and as a gress’ remedial RICO & Heller’s (M ready weapon against sophisticated providing rack- unit & L source of cash as a (and than) customers; perhaps as well as more for Heller’s Heller’s eteer customers convenience), taking advantage the artless. of M & L’s they purpose: and existed for a common F.2d at gain the economic London. reject argument therefore We reject enterprise argument that an association-in-fact RICO We therefore comprised legal be entities. that the Bledsoe standard has not been met cannot in this case. argument presumes that London’s second adopted this circuit has the test established argument London’s third derives Bledsoe, 674 F.2d at and forth set consistently “[w]e from fact that have supra above. See at 1242-1243. have interpreted requirement that a cul [RICO’s] today, do so if not and not do because even pable person ‘employed by or be associated arguendo applicability, we assume the test’s enterprise with’ the as meaning RICO ample jury there evidence entity duty the same cannot double as do requirements found that its met. have both the RICO defendant the RICO Bank, enterprise.” Miranda v. Ponce Fed. jury The could have found that there (1st Cir.1991) (quoting purpose animating was a common or shared 1962(c)). he, He contends that enterprise doing both the and London: com indictment, legally defendant named (and from) is thereby profiting merce indistinguishable from LM & and Heller’s. engaged gambling. bookmakers The evidence that London as an individual His overlooks the fact Mthat & pursued such overwhelming a scheme is and L, though proprietorship, a sole had at least Moreover, repeating. does not need & LM himself, employee one other than principal Heller’s were the means incorporated fact Heller’s was had plan. jury which London effectuated his employees several other than No himself. reasonably found that used M & L to required separate- more establish the (for illegal profit) proceeds launder a the of required by Judge ness As Posner RICO. gambling customers, for his bookmaker and explained responding argu- in a similar have privacy could found that he used the ment: M afforded Heller’s to shield & L from incorporates, gets If the one-man band it scrutiny, arrange meetings close between legal protections corporate some from the customers, and Ferrara his bookmaker and form, liability; such it as limited and is to collect “rent” for Ferrara. just legal illegal this of sort shield for jury activity also pierce. could have found that that RICO tries to A one- enterprise the continuing incorporate, functioned as a unit man band does that not that merely operates and had an ascertainable proprietorship, gains structure distinct as a legal from that in pat protections inherent the conduct of a form no from the in which racketeering business; activity. tern of As to lat the it has chosen to do and the man requirements, ter proprietorship really of these two M & L and the are the same en- legitimate tity Heller’s were that a in entities did law and fact. if man has But the significant associates, completely amount of business employees enterprise or is the separate pattern racketeering him, from the distinct from and it then no makes activity difference, see, legal issue in this case. Heller’s a far was so as we can what enterprise bar where drinks and food were sold. M & form the im- takes. The

1245 the to order that having voted judges not formally it be either thing that is portant court en the heard or reheard appeal be prac- incorporation) (as there is when besides banc. (as people are there tically when organization) working the proprietor the rehearing petition for that a It is ordered individual. from the separable rehearing banc be en suggestion for and a (7th Suter, 144

McCullough v. denied. Cir.1985). argument reject London’s therefore (dissenting). TORRUELLA, Judge Chief alleged in enterprise RICO and that he the is in this case panel opinion I believe indistinguishable. legally are indictment decision in Supreme Court’s contrary to the - U.S.-, States, 114 v. United Enterprise Rack- and Ratzlaf between 3. Nexus (1994). I reach 126 L.Ed.2d S.Ct. Involving eteering Extortion Acts two reasons. primarily for this conclusion Illegal Debt the Collection First, is that to sustain final held order Ratzlaf enterprise “structuring” under 31 between the a conviction no nexus there was 5324(3) prove must involving extortion racketeering acts and the debt, knowledge and that we acted with that the defendant collection and the view, my convictions his RICO was unlawful. set conduct must therefore language, of plain this do reach if not implication, not and clear We need aside. out, structuring Lon conviction pointed precludes have As we argument. Ratzlaf theory uti disregard” so are “reckless sustainable on the based don’s RICO convictions Second, denying certainty that case. tell with lized in this long as we can virtually ignores the majority sufficient two petition, he committed jury found (quoting States v. in United supra at decision fact that our acts. See predicate Cir.1993) (en bane), 968). Here, jury Aversa, F.2d 493 F.2d at Angiulo, 847 jury in disregard nu committed reckless upheld sustainably which found laundering. money struction, vacated remanded acts was predicate merous between consideration no “for further Thus, Supreme if nexus Court there even in racketeering acts v. United Donovan See enterprise light of’ Ratzlaf - -, illegal States, S.Ct. the collection volving extortion (1994). opin no the Court had (an express Because we on which L.Ed.2d issue debt that if Ratzlaf, con think RICO one would ion), just would sustain decided case the with that consistent Aversa victions. the writ simply have denied would Court from logical inference III. most certiorari. The viewed that the Court state of affairs this stated, judgment the reasons For con as Aversa decision pre-Ratzlaf our is affirmed. the district give us Ratzlaf, and wanted trary to TORRUELLA, Judge, Chief Before do so. remedy should it. We chance BOWNES, Circuit Senior COFFIN BOUDIN, opinion misin- CYR, panel SELYA, I STAHL Because believe Judges, law, from the denial I dissent LYNCH, Judges. terprets settled Circuit rehearing en rehearing or for petition banc. OF COURT ORDER rendered judges that panel deny the having voted in this case

decision ap- by the rehearing submitted

petition holding of for the suggestion and the

pellant carefully having been rehearing banc en judges

considered majority of said

regular active service

Case Details

Case Name: United States v. London

Court Name: Court of Appeals for the First Circuit

Date Published: Sep 18, 1995

Citation: 66 F.3d 1227

Docket Number: 93-1898

Court Abbreviation: 1st Cir.