January 13, 1993
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             
No. 91-1363

                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                        DANIEL F. AVERSA,
                      Defendant, Appellant.

                                             

No. 91-1364
                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                          VINCENT MENTO,
                      Defendant, Appellant.

                                             

          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

      [Hon. Martin F. Loughlin, Senior U.S. District Judge]
                                                          

                                             

No. 91-1574
                    UNITED STATES OF AMERICA,
                            Appellee,

                                v.

                       WILLIAM J. DONOVAN,
                      Defendant, Appellant.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

             [Hon. Shane Devine, U.S. District Judge]
                                                    

                                             

                              Before

                       Breyer, Chief Judge,
                                          

            Coffin and Bownes, Senior Circuit Judges,
                                                    

        Torruella, Selya, Cyr and Boudin, Circuit Judges.
                                                        

                                             

     Robert V. Johnson II, for appellant Aversa.
                         
     David A. Ross,  with whom Eaton, Solms,  McIninch &amp; Phillips
                                                                 
was on brief, for appellant Mento.
     Jonathan R. Saxe, with  whom Twomey &amp; Sisti Law  Offices was
                                                             
on brief, for appellant Donovan.
     Peter E. Papps, First Assistant United States Attorney, with
                   
whom Jeffrey  R. Howard, United  States Attorney, and  Richard A.
                                                                 
Friedman, Attorney, Department of Justice, were on brief, for the
        
United States.

                                             

                                             

                         OPINIONS EN BANC
                                             

          SELYA, Circuit  Judge.  The government  charged each of
          SELYA, Circuit  Judge.
                               

these appellants with criminal violations of the Bank Records and

Foreign Transactions  Act (BRFTA), Pub.  L. No. 91-508,  84 Stat.

1114 (1970)  (codified  as  amended in  various  sections  of  12

U.S.C., 15 U.S.C., and 31 U.S.C.).  Appellant Donovan was charged

with,  and convicted  of,  failure to  file currency  transaction

reports (CTRs).   See 31 U.S.C.   5313 (1988).  Appellants Aversa
                     

and Mento were  charged with, and convicted of,  structuring bank

deposits  to  avoid  triggering  currency  transaction  reporting

requirements.   See 31 U.S.C.    5324 (1988).  In  each case, the
                   

underlying legal  requirement comprises part of  Subchapter II of

the BRFTA.  Subchapter II's criminal penalty provision, 31 U.S.C.

   5322(a),   proscribes  only   "willful"   violations  of   the

subchapter's provisions.

          A panel of this  court initially heard Donovan's appeal

and  decided it adversely to  him.  We  subsequently withdrew the

panel opinion  and granted  rehearing en banc,  consolidating the

appeal  with appeals involving Aversa and Mento, so that we might

settle  the meaning of the  term "willful" as  used in Subchapter

II.1   The en banc  court now affirms  Donovan's conviction while

vacating  the other  convictions  and remanding  those cases  for

further proceedings.

                    

     1The   government   filed   cross-appeals  challenging   the
relatively mild sentences imposed  on Mento and Aversa.   In view
of our disposition  of the issue  before the en  banc court,  the
cross-appeals  (Nos. 91-1615 and  91-1616) are moot.   They will,
therefore, be dismissed without prejudice.

                                3

I. BACKGROUND

          These cases  originated in different ways  and traveled

different  paths to reach our doorstep.  We sketch the background

and then frame the common issue that all three appeals present.

                           A. Donovan.
                                     

          Donovan, the president  and chief executive  officer of

Atlantic  Trust  Company, a  Boston-based  financial institution,

moonlighted as a  real estate  developer.  A  friend, Dr.  Edward

Saba,  gave  Donovan  substantial  sums of  cash  to  deposit  at

Atlantic Trust for eventual investment in a New Hampshire housing

subdivision.   Eschewing Atlantic  Trust's standard  protocol for

routing  deposits through  tellers, Donovan  personally deposited

Saba's  money  in  five  chunks  of  $30,000,  $92,000,  $30,000,

$55,000, and $30,000, respectively.  Donovan made the deposits at

various  times  between  March  13,  1987  and  April  21,  1987.

Although  Donovan  was the  bank's legal  compliance officer    a

status which presumptively suggests his  familiarity with banking

laws    he  did  not  prepare CTRs  for  any of  these  deposits.

Indeed, Donovan  fended off his subordinates'  concerns about the

unorthodox way he was handling Saba's cash.

          At trial, Donovan admitted that he was aware of the law

requiring him to file CTRs for cash  deposits of $10,000 or more,

but  insisted that  he mistakenly  believed Saba's  deposits came

within  one  of  the  law's  exemptions.2    The  district  court

                    

     2"Deposits  or  withdrawals  of currency  from  an  existing
account by an established  depositor who . . .  operates a retail
type of  business" are  exempted from the  reporting requirements

                                4

instructed  the jury that it was the government's burden to prove

Donovan "knowingly"  and "willfully"  failed to  file CTRs.   The

court twice explained these elements (once during the main charge

and once in answering an inquiry during jury deliberations):

               An act or a  failure to act is knowingly
          done   if  it   is   done   voluntarily   and
          intentionally and  not because of  mistake or
          accident or other innocent reason.  An act or
          a failure  to act  is done willfully  if done
          voluntarily  and  intentionally and  with the
          specific  intent  to  do  something  the  law
          forbids,  that is  to  say with  bad purpose,
          either to disobey or disregard the law.

Despite Donovan's importuning, the district court refused to tell

the jury that any  mistake by Donovan, regardless of  its nature,

would necessitate acquittal.  The jury found Donovan guilty.

                       B. Aversa and Mento.
                                          

          Aversa  and  Mento  were  partners  in  a  real  estate

business.  In January 1989, they sold a parcel of land, splitting

the proceeds.  At the time, Aversa's marriage was foundering.  In

order  to conceal his share of  the profits from his wife, Aversa

asked  Mento to  deposit the  receipts in  Mento's personal  bank

account  rather than  in  the partners'  joint business  account.

Mento  agreed.    Aversa  signed a  statement  acknowledging  his

responsibility  for one-half of the funds  to insulate Mento from

potentially adverse tax consequences.

          Mento  and Aversa  knew that  Mento's bank  was legally

required  to file  CTRs  for all  deposits  of $10,000  or  more.

                    

under  31 C.F.R.     103.22(b)(2)(i) (1987).    Donovan does  not
contend  that  Saba was  an exempt  customer  under this,  or any
other, section of the regulations.

                                5

Fearing  that  the  resultant  paper trail  might  obviate  their

efforts  to hide the cash  from Mrs. Aversa,  the defendants made

serial deposits and withdrawals in sums under $10,000.   Although

both  men admitted that they knew about the CTR requirement, they

claimed to be unaware that structuring bank transactions, even if

designed to  avoid causing the  bank to file  CTRs, was  itself a

crime.

          Following the  return  of indictments,  the  government

moved  in   limine  to  prevent  the   introduction  of  evidence
                  

supporting the defendants' mistake-of-law theory.  Judge Loughlin

granted  the motion.  Aversa then pled guilty to structuring, but

did so  conditionally, see Fed.  R. Crim. P.  11(a)(2), reserving
                          

his mistake-of-law defense  for appeal.   Mento opted for  trial.

At  the  trial,  the   district  court,  over  timely  objection,

instructed  the jury  that mistake  of law was  not a  defense to

structuring.  The jury found Mento guilty.

                      C. The En Banc Issue.
                                          

          Although these appellants breached different regulatory

provisions  of  Subchapter  II,  each  was  convicted  under  the

subchapter's criminal  penalty provision,  31 U.S.C.    5322, and

each  raised a mistake-of-law defense.   We convened  the en banc

court specifically to  examine the efficacy  of such defenses  in

the CTR  and  antistructuring contexts.    At bottom,  this  task

requires us to elucidate the state of mind that Congress required

when it limited such violations to willful misconduct.

II. DISCUSSION

                                6

          We  begin with  an analysis  of the  governing statute,

exploring its interstices  and explicating its meaning.   We then

proceed to tackle the knotty mens rea questions that confront us.
                                     

                     A. The Statutory Scheme.
                                            

          In 1970, concerned about the ease with which criminals,

particularly drug traffickers,  were able to  exchange ill-gotten

profits for "clean"  money, Congress  enacted the  BRFTA.   Among

other things,  Subchapter II  delegated to the  Secretary of  the

Treasury  (the   Secretary)  the  power  to   require  banks  and

individuals to  file CTRs with the Internal  Revenue Service when

cash  changed  hands.3    See,  e.g.,  31 U.S.C.     5313.    The
                                    

Secretary  did not  exercise  his delegated  power in  respect to

individuals, but  required banks  to file CTRs  when transactions

involved $10,000 or more.  See 31 C.F.R.   103.22(a)(1) (1989).
                              

          Although Subchapter II's transaction report requirement

expanded the armamentarium of  federal law enforcement agents, it

was too easily circumvented.   Individuals who wished to  avoid a

paper trail for  any reason  could simply segment  large sums  of

money  into several  transactions of  less than  $10,000.   In an

apparent   effort  to   plug  this  loophole,   Congress  amended

                    

     3Subchapter II has a  number of other regulatory provisions,
including  reporting  requirements  for importing  and  exporting
currency and for foreign currency transactions.  See 31 U.S.C.   
                                                    
5313-17.  Congress did  not require that an individual  be guilty
of  some related  infraction  (say, drug  trafficking) before  he
could run afoul of these  currency regulations.  Rather, Congress
provided  that individuals who  violate the  currency regulations
while  involved in some other criminal  activity are eligible for
harsher penalties than those who violate the currency regulations
alone.  Compare 31 U.S.C.   5322(a) with 31 U.S.C.   5322(b).
                                        

                                7

Subchapter II  in  1986.   Pub.  L. No.  99-570,  100 Stat.  3207

(1986),  codified at 31 U.S.C.    5324.   The new antistructuring
                    

provision  limited  an  individual's  ability to  dodge  the  CTR

requirement.4  At  the time, Congress considered, but decided not

to  alter, section  5322's  criminal provisions.   Thus,  section

5322,  which  criminalizes   conduct  undertaken  by   a  "person

willfully violating  [subchapter II  or a regulation  promulgated

under Subchapter II]," applies  to the antistructuring section as

well as to  the balance  of Subchapter II.   Although  appellants

stand convicted of different offenses   Donovan was found  guilty

                    

     4The amendment read in pertinent part:

          No person  shall for  the purpose  of evading
          the reporting requirements of section 5313(a)
          with respect to such transaction -- 

                              . . .

               (3)   structure    or   assist   in
               structuring,    or    attempt    to
               structure or assist in structuring,
               any  transaction  with one  or more
               domestic financial institutions.

31 U.S.C.     5324.   The  regulations implementing  the  statute
explained that:

          a person  structures  a  transaction  if  that  person,
          acting alone, or in conjunction with,  or on behalf of,
          other persons,  conducts or attempts to  conduct one or
          more transactions in currency, in any amount, at one or
          more financial  institutions, on  one or more  days, in
          any manner,  for the  purpose of evading  the reporting
          requirements . . . .  "In any manner" includes, but  is
          not  limited to, the breaking  down of a  single sum of
          currency exceeding $10,000 into smaller sums, including
          sums  at  or  below  $10,000,   or  the  conduct  of  a
          transaction,  or  series   of  currency   transactions,
          including transactions at or below $10,000.

31 C.F.R.   103.11(n) (1989).

                                8

of  violating the  CTR provision while  the other  two appellants

were convicted of  structuring infractions   they  all argue that

section 5322's  willfulness requirement  means that, to  be found

guilty,  they must  have  intentionally traversed  a known  legal

duty.  Consequently, they press  a subjective standard of  intent

and  asseverate that  mistake  of law  necessarily constitutes  a

complete defense to the charges laid against them.

          The government takes a diametrically opposite view.  It

contends that, because Congress made  no express provision to the

contrary, ignorance of the law cannot  serve as a defense to  the

instant charges.  See generally United States v. Dotterweich, 320
                                                            

U.S. 277, 284 (1943) (holding that consciousness of wrongdoing is

not necessary for conviction).  The government's position derives

some  support  from  an  array  of  appellate  cases  which  have

disallowed   mistake-of-law   defenses   in   the   transactional

structuring milieu.   See, e.g.,  United States  v. Ratzlaf,  976
                                                           

F.2d 1280, 1283  (9th Cir.  1992); United States  v. Caming,  968
                                                           

F.2d 232,  238-39 (2d Cir.), cert. denied, 113 S. Ct. 416 (1992);
                                         

United  States v.  Gibbons, 968  F.2d 639,  644 (8th  Cir. 1992);
                          

United  States  v. Rogers,  962 F.2d  342,  344 (4th  Cir. 1992);
                         

United  States v. Brown, 954  F.2d 1563, 1568  (11th Cir.), cert.
                                                                 

denied, 113 S. Ct. 284 (1992); United States v. Dashney, 937 F.2d
                                                       

532, 538 (10th Cir.), cert. denied, 112 S. Ct. 402 (1991); United
                                                                 

States v.  Scanio, 900  F.2d 485,  490 (2d Cir.  1990).   For the
                 

reasons discussed below, we  think these cases read  section 5322

in an overly malleable manner. 

                                9

                  B. Mens Rea:  CTR Violations.
                                              

          We  start  by  analyzing  the mens  rea  required  with
                                                 

respect to CTR violations.  Under the criminal penalty provision,

31  U.S.C.   5322, violations, to be culpable, must be "willful."

The Court  has long recognized  that willful  "is a word  of many

meanings,  its  construction   often  being  influenced   by  its

context."  Spies v. United States, 317 U.S. 492, 497 (1943).  See
                                                                 

generally  Note, An  Analysis of  the  Term "Willful"  in Federal
                                                                 

Criminal Statutes, 51 Notre Dame L. Rev. 786, 786-87 (1976).
                 

          Courts   have  coalesced  around  four  definitions  of

willfulness.  The first,  which is most closely aligned  with the

government's theory here, simply equates "willful" with "knowing"

(i.e.,  so long as the defendant is  aware of his conduct and the
     

nature of his circumstances,  no more is necessary).   See, e.g.,
                                                                

United States v. McCalvin,  608 F.2d 1167, 1171 (8th  Cir. 1979);
                         

see  also  American Law  Institute,  Model Penal  Code    2.02(8)
                                                      

(1985).5   The second  definition of willfulness,  which is  most

                    

     5An exchange between Judge Learned Hand and the reporter for
the Model Penal Code,  Professor Herbert Wechsler, indicates that
the Code's principal architects thought that the term "willfully"
added very little to statutory meaning:

          Judge Hand:   [Willfully  is] an awful  word!
          Judge Hand
          It  is one of the most troublesome words in a
          statute that I know.   If I were to  have the
          index  purged, "wilful"  would  lead all  the
          rest  in spite of its being at the end of the
          alphabet.

          Professor Wechsler:  I  agree with you  Judge
          Professor Wechsler
          Hand,  and I  promise you  unequivocally that
          the word will never be used in the definition
          of any offense  in the Code.  But  because it
          is such a  dreadful word and so common in the

                                10

closely aligned with appellants' position, has its roots in  tax-

crime  cases.    This   approach  equates  willfulness  with  the

violation  of a known  legal duty.   See,  e.g., Cheek  v. United
                                                                 

States,  111 S. Ct. 604, 610 (1991) (discussed infra Part II(D)).
                                                    

To our knowledge, no court of appeals has applied either of these

first  two definitions  across the  board in connection  with the

entire array of Subchapter II violations.

          Several courts,  however, have taken a  hybrid approach

to the issue  of willfulness  in the purlieus  of Subchapter  II.

This approach is marked by its protean quality.  Depending on the

language  of  each  particular  regulatory  provision,  the  word

"willfully"  as  used  in section  5322  takes  on  a variety  of

meanings,  allowing mistake of law as a defense to certain crimes

and not to others.  This viewpoint is best typified by Scanio and
                                                             

its progeny.  See Scanio, 900 F.2d at 490 (permitting mistake-of-
                        

law defense as to  some currency-related crimes while prohibiting

such a defense vis-a-vis other currency-related crimes); see also
                                                                 

cases collected supra at p. 9.
                     

          We  think that  all three  of these  definitions create

needless problems.    The  government's  theory  undervalues  the

statute's  language by reading willfulness as if it were simply a

                    

          regulatory  statutes, it seemed  to me useful
          to superimpose some norm of meaning on it.

American  Law Institute,  Model Penal  Code    2.20, at  249 n.47
                                           
(1985).

                                11

synonym for  general intent.6   In contrast,  appellants' theory,

if applied across the  board, would allow all mistakes of law, no

matter   how   unreasonable,  to   serve   as   bucklers  against

prosecution,  and,  in the  bargain,  would  vitiate the  general

principle that  "deliberate ignorance and  positive knowledge are

equally  culpable."  United States  v. Jewell, 532  F.2d 697, 700
                                             

(9th  Cir.),  cert. denied,  426 U.S.  951  (1976).   Last, while
                          

Scanio   and  its   progeny  adopt   a  flexible   definition  of
      

willfulness,  they  neither  speak  to   the  mens  rea  for  CTR
                                                       

violations  nor answer  the  critical question  of how  differing

definitions can attach to a single usage  of an operative term in

a single statutory section.

          For  our  part, we  take yet  a  fourth tack     a tack

adumbrated by the course we  set in United States v. Bank  of New
                                                                 

England,  821 F.2d  844 (1st  Cir.), cert.  denied, 484  U.S. 943
                                                  

(1987).    In  that case,  we  plotted  the intersection  between

section  5322's  willfulness  criterion  and section  5313's  CTR

requirements.  See id. at 854-59.  Bank of New England had failed
                      

to  prepare  CTRs  when   a  customer  repeatedly  withdrew  cash

aggregating  over  $10,000  by  means of  multiple  checks,  each

written for slightly  under $10,000.  The bank argued that it had

not  engaged in willful misconduct because it had not "violated a

                    

     6It is a common rule of statutory interpretation that courts
must  give effect  to legislative  terms wherever possible.   See
                                                                 
Gade  v. National Solid Wastes Management Ass'n, 112 S. Ct. 2374,
                                               
2384  (1992);  United States  v. Menasche,  348 U.S.  528, 538-39
                                         
(1955).  We  cite this  familiar tenet because  there would  have
been  no need for Congress to include the term "willfully" at all
if the government's reading of section 5322 were accurate.

                                12

known  legal duty."   Id. at  856.   We rejected  the bank's plea
                         

because  the   evidence  revealed   that  the   bank's  professed

unawareness about whether  the reporting requirements applied  to

the  transactions   was  a  product  of   the  bank's  deliberate

blindness.  See id. at 856, 857.
                   

          Our opinion in Bank of New England is not pathbreaking;
                                            

it  merely represents  a particularized  application of  the rule

defenestrating  mistake-of-law  defenses  when  the  mistakes  in

question result from intentional or reckless disregard of a legal

duty.  See  McLaughlin v. Richland Shoe  Co., 486 U.S.  128, 133,
                                            

135  n.13  (1988) (willfulness  may  be  shown either  by  actual

knowledge or  by "reckless disregard  for the  matter of  whether

[defendant's]  conduct  was prohibited  by  the statute");  Trans
                                                                 

World  Airlines, Inc. v.  Thurston, 469  U.S. 111,  126-28 (1985)
                                  

(similar);  see also Bank of  New England, 821  F.2d at 886 ("the
                                         

Supreme Court  has endorsed  defining willfulness, in  both civil

and  criminal contexts, as 'a disregard for the governing statute

and an  indifference to its requirements'")  (quoting Trans World
                                                                 

Airlines, 469 U.S. at 127).
        

          We adhere today to the teachings of Bank of New England
                                                                 

and build upon that foundation.   We believe that, in respect  to

alleged violations of the  BFTRA's CTR provisions, section 5322's

willfulness criterion  demands that  the government  prove either

the violation of a  known legal duty or the reckless disregard of

the  same.  See  Bank of New England,  821 F.2d at  866.  We move
                                    

forward  from that point,  therefore, to consider  a question not

                                13

present in Bank of New England:  the significance of section 5322
                              

in the antistructuring context.

         C. Willful Structuring:  One Word, One Meaning.
                                                       

          Section  5322 provides criminal  sanctions for both CTR

and  structuring  offenses.    As  we  determine   the  mens  rea
                                                                 

requirement  for the latter group of crimes, it is axiomatic that

the plain words and  structure of the statute must  be paramount.

See,  e.g.,  Pennsylvania Dep't of Pub. Welfare v. Davenport, 495
                                                            

U.S. 552, 557-58  (1990); Stowell v.  Ives, 976 F.2d 65,  69 (1st
                                          

Cir.  1992).  Ordinarily, "identical terms within an Act bear the

same meaning."  Estate of Cowart v.  Nicklos Drilling Co., 112 S.
                                                         

Ct. 2589, 2596 (1992);  accord Sullivan v. Stroop, 496  U.S. 478,
                                                 

484  (1990).   In the  case at  hand, the  Cowart  presumption is
                                                 

particularly strong.   We explain briefly.

          While  courts have  found on  infrequent occasion  that

Congress intended a word to have different connotations when used

in different  provisions of  the same Act,  see, e.g.,  Greenwood
                                                                 

Trust  Co. v.  Massachusetts, 971  F.2d 818,  830 n.10  (1st Cir.
                            

1992), petition for cert.  filed, 61 U.S.L.W. 3382 (U.S.  Nov. 4,
                                

1992) (No. 92-794);  New Eng. Tel.  &amp; Tel. Co.  v. Public  Utils.
                                                                 

Comm'n, 742  F.2d 1,  8 (1st Cir.  1984), cert. denied,  476 U.S.
                                                      

1174 (1986),  those instances  almost always  involve, at a  bare

minimum, multiple uses  of a  term or phrase  within a  panoramic

statutory  scheme.   Here,  however,  we  are  not  dealing  with

repetitions of a word at diverse points in a statute,  but with a

single word  in a  single statutory section.   Ascribing  various

                                14

meanings  to a single  iteration of a  single word    reading the

word  differently for  each code  section to  which it  applies  

would  open Pandora's  jar.   If  courts  can render  meaning  so

malleable, the  usefulness of  a single  penalty provision for  a

group  of  related  code  sections will  be  eviscerated  and, by

extension,  almost any  code section  that references a  group of

other  code  sections  would become  susceptible  to individuated

interpretation.

          Furthermore, if Congress wanted  the purposive mens rea
                                                                 

in  the antistructuring  statute to stand  alone, it  had several

simple  options.    It  could,   for  example,  have  placed  the

antistructuring provision somewhere other than in Subchapter  II,

or amended the criminal sanctions provision to except structuring

violations.7   It exercised none of the available options.  Thus,

absent  powerful  evidence to  the  contrary,  we believe  courts

should presume that Congress intended the mens rea set by section
                                                  

5322  to  apply  in equal  measure  to  both  CTR violations  and

structuring offenses.

          We  recognize,  of course,  that  notwithstanding these

problems,   several  other   courts  have  scuttled   the  Cowart
                                                                 

presumption  and  read  the  word  "willfully"  in  section  5322

differently  as  it applies  to  breaches  of different  currency

regulations.  Compare, e.g., Brown, 954 F.2d at 1568 (ruling that
                                  

                    

     7In  fact,  Congress chose  precisely  this  course for  the
provision requiring reports on  foreign currency transactions, 31
U.S.C.     5315,  leaving  only  civil  penalties  available  for
enforcement of that provision.  See 31 U.S.C.   5322(a)-(b).  
                                   

                                15

knowledge of the antistructuring law was not required to ground a

structuring conviction) and Scanio, 900  F.2d at 490 (same) with,
                                                                

e.g., United States v. Eisenstein, 731 F.2d 1540, 1543 (11th Cir.
                                 

1984)  (upholding mistake-of-law defense  for currency import and

export violations) and United States v. Dichne, 612 F.2d 632, 636
                                              

(2d Cir. 1979) (similar), cert. denied, 445 U.S. 928 (1980).  See
                                                                 

also Dashney,  937 F.2d at 539-40 (declaring mistake of law to be
            

a  defense in respect to violations of currency import and export

regulations  but not  in respect  to structuring  offenses).   To

warrant  redefining "willfully"  from crime  to crime  within the

same  statute,  these  courts  generally  attempt to  distinguish

antistructuring   regulations   from,  say,   currency  importing

regulations,  on the  basis of  the "reasonable  probability that

knowledge  [of the  law] might  be obtained"  more easily  in the

former situation  than in the  latter.  Scanio,  900 F.2d at  490
                                              

(citation omitted).

          We must  respectfully disagree with these  courts.  The

distinction  that   they  draw   simply  does  not   justify  the

transmogrification  of  the  word  "willfully"  into  a statutory

chameleon.   We are, moreover, particularly  chary about adopting

so pleochroic an approach  in light of the more  consistent, less

complicated alternative offered  in Bank of New England, 821 F.2d
                                                       

at  856.  That alternative, which derives great vitality from the

Supreme Court's  language, see McLaughlin, 486 U.S. at 133; Trans
                                                                 

World  Airlines,  469 U.S.  at  126, provides  a  fair, workable,
               

mistake-of-law  defense  to  those  accused  of  currency-related

                                16

crimes and at  the same time ensures that  defendants who know of

the  law's requirements  in a  general sense,  but recklessly  or

intentionally fail to investigate  the legality of structuring or

other proscribed activity, will be found guilty.

          We hold, therefore, that  the plain language of section

5322 governs;  that the  unitary willfulness standard  of section

5322  should  be  given  an  identical meaning  with  respect  to

structuring  and   CTR  violations;8  and  that,   therefore,  an

                    

     8Because this issue is susceptible to resolution in terms of
the plain meaning and structure of the statute, we need not probe
the  legislative history.   See  United States v.  Charles George
                                                                 
Trucking  Co.,  823 F.2d  685, 688  (1st  Cir. 1987)  (one should
             
"resort to the  legislative history and  other aids of  statutory
construction only  when the literal  words of the  statute create
ambiguity or  lead to an unreasonable  interpretation") (citation
and   internal  quotation  marks  omitted);  accord  Barnhill  v.
                                                             
Johnson, 112 S.  Ct. 1386, 1391 (1992); Stowell, 976  F.2d at 69.
                                               
We note in passing, however,  that while the legislative  history
with regard to section 5322 and the antistructuring amendments in
no  way contradicts  our  analysis of  how  the word  "willfully"
should  be  construed,  this  is   yet  another  case  where  the
legislative history of  a statute "is  more conflicting than  the
text is ambiguous."   Wong Yang Sung v. McGrath,  339 U.S. 33, 49
                                               
(1950).

          The report  issued by  the House of  Representatives in
conjunction with  the bill which included  the criminal sanctions
section now codified as 31 U.S.C.   5322 merely recapitulated the
Act's criminal  provisions.  And,  although the House  and Senate
issued seventeen  reports dealing  with a salmagundi  of proposed
bills,  features of  which  were amalgamated  into the  Anti-Drug
Abuse  Act of 1986 (the bill  which contained the antistructuring
provision now codified  as 31 U.S.C.   5324), there  was no House
or Senate  report accompanying  the Act.   See 1986  U.S.C.C.A.N.
                                              
5393  (noting  the  absence  of  a  report  but  listing  related
reports).   To be  sure, the House  considered    and rejected   
several alterations  to section 5322 that would  have changed the
term "willfully"  to "knowingly."   See, e.g., H.R.Rep.  No. 855,
                                             
99th  Cong.,  2d  Sess.  7,  27  (1986).    The  Senate  likewise
considered  legislation  designed  to  make  section   5322  read
"knowingly"  instead of "willfully."  See S. 2683, 99th Cong., 2d
                                         
Sess.  (1986).    The purpose  of  this  proposed  change was  to
eliminate the possibility  of antistructuring liability  premised

                                17

unintentional, non-reckless mistake of  law is a complete defense

to a structuring charge.

                 D. Willfulness in the Tax Code. 
                 D. Willfulness in the Tax Code.
                                               

          In an effort  to read  the word "willfully"  in a  more

charitable  manner, all  three appellants  urge that  the Court's

recent decision in United States v. Cheek, 111 S. Ct. 604 (1991),
                                         

signifies that  federal courts  should apply a  purely subjective

standard to virtually all white-collar crimes that require a mens
                                                                 

rea of willfulness as an element of the offense.  Such a standard
   

differs from the standard we endorse today because it would allow

mistakes born  of intentional  or reckless ignorance  to insulate

defendants from  criminal liability.   Donovan's case illustrates

the practical effect  of this  suggestion:  had  the trial  judge

defined willfulness  exclusively in terms of  a subjective intent

to  disobey the law, the jury might have exonerated the defendant

on  the basis  of  a genuine,  albeit reckless,  misunderstanding

about the law's requirements.

          We do not  think that  Cheek can carry  the cargo  that
                                      

                    

upon "reckless  disregard" of the law.   See S. Rep.  No. 99-433,
                                            
99th Cong., 2d Sess. 1, 8 (1986).  The amendment failed.

          We see no point in reciting additional  book and verse.
The  most serviceable  conclusion  that  can  be woven  from  the
language   in   the  sundry   reports   attached   to  ultimately
unsuccessful legislation  is that,  during the extended  drafting
and redrafting of various bills respecting currency transactions,
Congress,  or at least some of its members, reconsidered the mens
                                                                 
rea  of section 5322, assessed its relationship with the proposed
   
antistructuring provision, and elected not to act.

                                18

appellants load  upon it.9  Cheek  was a criminal tax  case.  The
                                 

Court  noted that the term  "willfully," as used  in criminal tax

statutes, had long been interpreted "as carving out  an exception

to the traditional  rule" that  ignorance of the  law affords  no

defense  to a  criminal prosecution.   Id.  at 609.   Nowhere  in
                                          

Cheek,  or in  the  Court's earlier  opinions involving  criminal
     

prosecutions  under  the tax  laws, see,  e.g., United  States v.
                                                              

Pomponio, 429  U.S.  10 (1976)  (per  curiam); United  States  v.
                                                             

Bishop, 412 U.S. 346  (1973); United States v. Murdock,  290 U.S.
                                                      

389  (1933), is  there any  indication that  courts should  use a

purely  subjective standard in  evaluating state-of-mind defenses

under other federal statutes.  Rather, the Cheek Court repeatedly
                                                

qualified its discussion of the point by referring to the special

context   criminal tax prosecutions   from  whence the discussion

proceeded.   See,  e.g., Cheek,  111  S. Ct.  at 609,  610.   The
                              

Court's earlier opinions  stressed the  same point.   See,  e.g.,
                                                                

Pomponio, 429 U.S. at 12 &amp; n.3; Bishop, 412 U.S. at 360-61.  This
                                      

repeated qualification makes  clear that the Court  has crafted a

narrow  exception,  limited to  tax  cases,  in which  subjective

mistake of law can constitute an absolute defense.

          Such   a   conclusion   coheres  with   our   long-held

                    

     9Our dissenting brother suggests  that it is unnecessary for
us to discuss the range of Cheek.   See post at 33.  We disagree.
                                            
If  the Cheek rationale extended beyond the boundaries of the tax
             
code,  as appellants  claim it  does, the  result we  reach today
would be altered, at least as  to appellant Aversa.  Moreover, it
is  essential  to any  careful  understanding  of section  5322's
willfulness  standard  that we  consider,  and  account for,  the
Court's explication of  a parallel problem arising under  the tax
code.

                                19

understanding of the  tax-crime exception.   In United States  v.
                                                             

Aitken,  755  F.2d  188  (1st Cir.  1985),  we  acknowledged  the
      

uniqueness of the tax  statutes' mens rea requirements.   See id.
                                                                 

at 193 ("That internal  revenue reporting and filing requirements

are  an enclave  apart  is  recognized.").    We  read  Cheek  as
                                                             

confirming and fortifying the stance that we took in Aitken.
                                                           

          Moreover,  and finally,  the  rationales  supporting  a

subjective mistake-of-law defense in tax-crime cases do not apply

to laws and regulations of the kind at issue here.  As the Second

Circuit noted, "[o]ne  of the most esoteric  areas of the  law is

that  of  federal  taxation.   It  is  replete  with  'full-grown

intricacies,'  and it is rare that a 'simple, direct statement of

the law can be  made without caveat.'"   United States v.  Regan,
                                                                

937  F.2d 823, 827 (citation omitted), modified, 946 F.2d 188 (2d
                                               

Cir. 1991), cert. denied,  112 St. Ct. 2273 (1992).   The federal
                        

tax  code is not only enormous, detailed, and technical, but also

interrelated and highly nuanced.  Simply reading the words of the

tax  code does  not  always reveal  the  line between  legal  and

illegal conduct.  And for over sixty years, the Supreme Court has

held that  Congress does not intend to  punish those who, in good

faith, stray past that line.

          For  these reasons, we join  the courts of appeals that

have   found  the   Cheek  doctrine   inapplicable  to   criminal
                         

prosecutions  under the  currency reporting  laws.10   See, e.g.,
                                                                

                    

     10Attempts to  expand Cheek's  horizons have  been regularly
                                
rejected  in  most other  contexts as  well.   See,  e.g., United
                                                                 
States v. Hollis, 971 F.2d 1441, 1451 (10th Cir. 1992) (rejecting
                

                                20

United  States v. Beaumont, 972  F.2d 91, 94-95  (5th Cir. 1992);
                          

Brown, 954 F.2d at  1569 n.2; Caming, 968  F.2d at 241;  Dashney,
                                                                

937  F.2d at 539-40.  The currency statutes are comparatively few

in number, target a much narrower range of conduct, and under the

current  regulations affect a  considerably smaller constituency.

The  regulatory  scheme,  overall,   is  not  intricate  or  even

especially subtle.  We  think these distinctions are dispositive.

Accordingly, we  reaffirm Aitken  and continue to  hold that  the
                                

Cheek  exception is restricted to  tax crimes.   In a prosecution
     

brought under  Subchapter II, as we have  explained, the criminal

intent required for conviction is either the violation of a known

legal  duty or  reckless  disregard of  the  law.   Consequently,

appellants' requests  for the application of  a wholly subjective

standard were properly denied by Judges Loughlin and Devine.

III. APPLYING THE LAW

          All that remains  is for us to apply the  fruits of our

analysis to each appellant's situation.

                           A.  Donovan.
                                      

          In Donovan's case, the  trial judge instructed the jury

that Donovan's actions were willful if he had the "bad purpose to

                    

extension  of Cheek to loan fraud context); United States v. Gay,
                                                                
967  F.2d  322, 327  (9th Cir.)  (same;  mail fraud  case), cert.
                                                                 
denied, 113 S. Ct. 359 (1992); United States v.  Chaney, 964 F.2d
                                                       
437, 446 n.25  (5th Cir.  1992) (same; bank  fraud case);  United
                                                                 
States v.  Dockray, 943 F.2d 152, 156 (1st Cir. 1991) (same; mail
                  
and wire fraud prosecution).  A few courts, however, particularly
those  faced  with cases  involving  the  willful destruction  of
government property,  have applied  a Cheek-like standard.   See,
                                                                
e.g.,  United  States v.  Mills, 835  F.2d  1262, 1265  (8th Cir.
                               
1987); United States  v. Moylan,  417 F.2d 1002,  1004 (4th  Cir.
                               
1969), cert. denied, 397 U.S. 910 (1970).
                   

                                21

disobey  or to disregard  the law."   While Judge Devine  did not

give  the   exact  instruction   which  Donovan   requested,  the

instruction he gave was almost identical to the instruction which

we approved for CTR  violations in Bank of New  England, 821 F.2d
                                                       

at 855.  Moreover, Donovan's requested instruction focused on bad

motive    and the Cheek  Court made clear  that a showing  of bad
                       

motive is more  restrictive than necessary,  even under the  tax-

crime standard.  See Cheek, 111 S. Ct. at 610; see also Pomponio,
                                                                

429  U.S.  at 13.    Finally, the  judge  allowed the  parties to

introduce  evidence  pertaining   to  Donovan's  state  of   mind

regarding the law and the facts.

          The  trial court   which, in  instructing the jury, had

no obligation to  parrot the precise  language favored by  either

side   gave  a charge  that, viewed in  its entirety,  adequately

explained  the legal  issues, including  every legitimate  theory

upon which Donovan's defense  could rest.  No more  was exigible.

See United  States v. McGill,  953 F.2d 10,  13 (1st  Cir. 1992);
                            

United States v.  Nivica, 887  F.2d 1110, 1124  (1st Cir.  1989),
                        

cert.  denied, 494  U.S. 1005  (1990).   This is  especially true
             

where,   as  here,  the   defendant's  subjective  mistake-of-law

proposal went well beyond what the law requires in its insistence

upon proof of  evil motive.  See,  e.g., United States v.  David,
                                                                

940  F.2d 722,  738 (1st  Cir. 1991)  (holding that  the district

court  may   appropriately  refuse   to  give  a   proposed  jury

instruction "which  is  incorrect, misleading,  or incomplete  in

some material respect"), cert. denied, 112 S. Ct. 605, 908, 1298,
                                     

                                22

2301 (1992).

                      B.  Aversa and Mento.
                                          

          We find the remaining appeals to be cut  from different

cloth.  Because of restrictive rulings made below, neither Aversa

nor  Mento ever had a chance to present a mistake-of-law defense.

Both of them were precluded by the government's successful motion

in limine from offering any evidence as to their ignorance of the
         

antistructuring law.  Additionally,  in Mento's case the district

judge  charged the  jury  that mistake  of  law was  no  defense,

declaring:  "It  is not  necessary that the  United States  prove

that  the defendant  knew that  the structuring  of his  currency

transactions was unlawful."

          Since  neither  of these  defendants  were afforded  an

opportunity to develop the  record, and since both of  them claim

not to have  known that what they did was  illegal, we cannot say

what a fully amplified  record might show regarding  Aversa's and

Mento's   familiarity   with,  or   actual   knowledge   of,  the

antistructuring law.11   Similarly, we  cannot say how  the proof

might  shape up  in respect to  reckless disregard  or deliberate

blindness.  It follows inexorably  that, on this scumbled record,

Aversa's and Mento's convictions cannot stand.

IV.  CONCLUSION

          We  need  go  no  further.    In  the  context  of  the

antistructuring and CTR provisions of Subchapter II, we find that

                    

     11We do  know,  however,  that  in the  plea  agreement  the
government stipulated that it had no evidence of actual knowledge
on Aversa's part.

                                23

a willful action  is one committed in violation  of a known legal

duty or  in consequence  of a  defendant's reckless  disregard of

such a duty.  In Donovan's case, the introduction of evidence was

not unduly restricted and the district court's charge to the jury

was  adequate to  comport with  the proper  standard.   Thus, his

appeal fails.12  Because neither Aversa nor Mento had a chance to

present  evidence on  a  mistake-of-law theory,  and because  the

trial  court's jury  instruction  in Mento's  case was  harmfully

erroneous,  their convictions  must  be vacated  and their  cases

remanded for further  proceedings.  By the terms of Fed. R. Crim.

P. 11(a)(2), Aversa  may, if  he so elects,  withdraw his  guilty

plea in  the court below.   See United States v.  Lyons, 898 F.2d
                                                       

210, 214 n.5 (1st Cir.), cert. denied, 111 S. Ct. 295 (1990).
                                     

          In Appeal  No. 91-1574,  the judgment of  conviction is
                                                                 

affirmed.
        

          In Appeals  Nos. 91-1363 and 91-1364,  the judgments of
                                                                 

conviction  are  vacated  and  the  cases  remanded  for  further
                                                                 

proceedings not inconsistent herewith.
                                     

                    Concurring Opinion follows  

                Dissent follows Concurring Opinion  

                    

     12Donovan's  remaining  ground  of appeal  was  convincingly
dispatched  in the prior panel opinion.  Hence, we reinstate that
opinion in redacted form, expressly adopting Part IV thereof.

                                24

             BREYER,  Chief Judge (concurring).  I believe that
                                 

   criminal prosecutions  for "currency law" violations, of the

   sort at issue here, very much resemble criminal prosecutions

   for  tax law violations.   Compare 26 U.S.C.     6050I, 7203
                                     

   with  31  U.S.C.     5322,  5324.   Both  sets  of  laws are
       

   technical;  and  both  sets  of  laws sometimes  criminalize

   conduct that would not strike an ordinary citizen as immoral

   or likely unlawful.  Thus, both sets of laws may lead to the

   unfair  result  of  criminally prosecuting  individuals  who

   subjectively  and  honestly  believe  they  have  not  acted

   criminally.   United States v. Cheek, 111 S. Ct. 604 (1991),
                                       

   sets forth  a legal standard  that, by requiring  proof that

   the defendant  was subjectively aware of the  duty at issue,

   would avoid such  unfair results.  Were I writing on a blank

   slate, the similarity of the two sets of criminal laws might

   well  lead me  to conclude  that the  same  standards should

   apply  in both sets of cases.  Other circuits, however, have

   distinguished "currency reporting" cases from Cheek.  See en
                                                            

   banc  opinion,  supra at  p.  20.   Moreover,  Supreme Court
                        

   opinions have  strongly  suggested that  criminal tax  cases

   constitute  a  separate enclave  in the  law.   See  en banc
                                                      

   opinion, supra at pp. 18-19.
                 

                                25

             In  addition, the court today announces a standard

   that  does not threaten  to allow conviction  of a defendant

   with an innocent state of mind.  Under the court's standard,

   the  government   must  prove  that  the   defendant  either

   subjectively  knew  of  his  legal  duty,  or  that  he  was

   "reckless"  in respect to the  existence of that  duty.  Cf.
                                                               

   McLaughlin  v. Richland Shoe Co., 486 U.S. at 135 n.13 (even
                                   

   objectively unreasonable failure to determine  correct legal

   obligation is not "willful,"  as long as such failure  falls

   short  of  recklessness).   One  can  imagine  how a  person

   frequently in contact  with these laws, such as  a financial

   officer or  drug-fund courier, could  be found to  have been

   "reckless"   in  failing  to   learn  relevant  legal  data.

   However, it is  difficult to  see how one  could convict  an

   ordinary  citizen on  this  basis, i.e.,  in the  absence of
                                          

   actual,  subjective  knowledge  of   the  legal  duty,   for

   "recklessness"   involves  the  conscious   disregard  of  a

   substantial risk.  See  Model Penal Code   2.02(2)(c)(1985);
                         

   cf.  United  States v.  Murdock,  290 U.S.  389,  395 (1933)
                                  

   (conduct is "willful"  in the context of a  criminal statute

   if  it is "marked by careless disregard [for] whether or not

   one has the right to act").

                                26

             I  therefore conclude  that the  court's announced

   standard  is  sufficiently  close to  the  purely subjective

   standard set forth  in Cheek  that it will  avoid using  the
                               

   criminal law,  in this technical area, to  punish those with

   an innocent state of mind, those who did not know they  were

   violating the  law and who reasonably  failed to investigate

   the issue.  I therefore join the court's opinion.

                         Dissent follows  

                                27

          TORRUELLA,  Circuit Judge  (Dissenting).    Although  I
                                   

agree with  much of what is stated by the majority, and even more

with Chief Judge Breyer's concurrence, I write separately because

I  believe neither  opinion  goes far  enough.   In  my  view the

prosecution of these  cases is defective on two grounds:   (1) As

clearly reflected  in the legislative history  of these statutes,

appellants are  improper targets of money laundering accusations,

and  (2)  even if  the charges  are  within statutory  scope, the

standard of scienter  in Cheek v.  United States, 498  U.S.   192
                                                

(1991), is applicable to them.

            I.  ACTIVITY  TARGETED  BY  THE  BANK
                                                 
                SECRECY  ACT,  AS AMENDED  BY THE
                                                 
                MONEY LAUNDERING CONTROL ACT
                                            

          I  need not repeat the facts as stated by the majority.

I will only emphasize that appellants are  neither the recipients

of  illegal drug  funds or  engaged in laundering  money proceeds

from  criminal ventures,  nor are  they income  tax evaders.   In

fact,  particularly in  the case of appellants Aversa  and Mento,

they did nothing prior to  the alleged "structuring" actions that

even  approximates the commission of a criminal offense.  I focus

on the Bank Secrecy Act and its more recent amendment,  the Money

Laundering Control  Act, to determine whether appellants' actions

are within the purview  of the conduct that Congress  intended to

criminalize by this legislation.

                               -28-
                                28

          The  Bank Secrecy Act, enacted in 1970, was part of the

Bank  Records and  Foreign  Transaction Act.13   The  unequivocal

concern  of this complex legislation  was to prohibit  the use of

foreign banks to  "launder" the proceeds  of illegal activity  or

evade  federal  income taxes.14    It  became apparent,  however,

that  these enactments  had  little impact  on large-scale  money

laundering related to illegal drug transactions, and that illicit

funds  were flowing  in  ever-increasing  amounts into  financial

institutions  in the  United  States.15   As  a result,  Congress

enacted  the Anti-Drug Abuse Act  of 1986,16 Title  I, subtitle H

of which was  the Money  Laundering Control  Act of  1986.   This

subtitle included an anti-structuring provision.17

          One  thing clearly emerges from the legislative history

of this  statute:   Congress  wished to  attack money  laundering

associated  with organized  crime or  related criminal  activity,

particularly the illicit  drug trade.  See S. Rep.  No. 433, 99th
                                          

Cong., 2d Sess. (1986)  (accompanying S. 2683).  A  casual review

of  the Senate Report accompanying this Act reveals that the term

"money laundering,"  or its  equivalent,  is used  more than  100

                    

13  Pub. L. No. 91-508, 84 Stat. 1114 (1970) (codified as amended
in scattered sections of 12 U.S.C., 15 U.S.C. and 31 U.S.C.).

14  S. Rep. No. 433, 99th Cong., 2d Sess. 2-3 (1986).

15   See The  President's Commission on  Organized Crime, Interim
        
Report  to the  President  and  the  Attorney General,  The  Cash
                                                                 
Connection:  Organized  Crime, Financial Institutions, and  Money
                                                                 
Laundering (1984); S. Rep. No. 433 (1986).
          

16  Pub. L. No. 99-570, 100 Stat. 3207.

17  31 U.S.C.A.   5324 (West Supp. 1992).

                               -29-
                                29

times,  and  that  it  refers  to  organized  crime  and criminal

activity  on no less  than 53 occasions.   Id.   The House Report
                                              

displays  a similar preoccupation.   See H.R. Rep.  No. 746, 99th
                                        

Cong., 2d Sess. (1986) (accompanying H.R. 5176).  The first major

heading   of  this   report  is   "Drug  Trafficking   and  Money

Laundering."   Id.  at  p.  16.   The  report  refers  to  "money
                  

laundering" approximately 73 times,  and to  organized  crime and

illegal drug trafficking 53 times.

          Given  the  congressional   preoccupation  with   money

laundering  it  is  surprising   that  neither  the  term  "money

laundering," nor  the new crime  created by the  Money Laundering

Control  Act,   "structuring,"  are  defined   by  the   statute.

Nevertheless, the House Report states the following:

            Money    Laundering   Defined.    -   The
                                         
            President's Commission on Organized Crime
            has  defined  money  laundering   as  the
            "process  by  which   one  conceals   the
            existence,  illegal  source,  or  illegal
            application of income, and then disguises
            that   income   to    make   it    appear
            legitimate."  In other  words, laundering
            involves  the hiding  of the  paper trail
            that  connects  income  or  money  with a
            person in order for such person to  evade
                                                     
            the payment of taxes,  avoid prosecution,
                                                     
            or obviate any forfeiture of  his illegal
                                                     
            drug income or assets. . . .
                                 

Id. at 16 (emphasis supplied).
   

          I  derive additional  guidance  from the  Senate Report

that discusses what later became 18 U.S.C.   1956(a)(1), which is

entitled Laundering of Monetary Instruments.  See S. Rep. No. 433
                                                 

at 9.  The report calls section 1956 "the basic  money laundering

                               -30-
                                30

offense."    Id.     That  section,   which  in  effect   defines
                

"laundering," provides:

                               -31-
                                31

            Whoever   knowing   that   the   property
                                                     
            involved   in  a   financial  transaction
                                                     
            represents  the proceeds of  some form of
                                                     
            unlawful  activity, conducts  or attempts
                              
            to conduct such  a financial  transaction
            which  in fact  involves the  proceeds of
            specified unlawful activity--(B)  knowing
            that the transaction is designed in whole
            or in part --  (i) to conceal or disguise
            the nature, the location, the source, the
            ownership, or the control of the proceeds
            of specified unlawful  activity; or  (ii)
            to   avoid    a   transaction   reporting
            requirement under State  or Federal law .
            .  . .  [will  be  liable for  conviction
            under this section].

18 U.S.C.   1956(a)(1) (emphasis supplied).

          On  the other  hand, "structuring"  is only  defined by

regulation.      31   C.F.R.     103.53,   entitled   "Structured

Transactions," provides that:

            No  person  shall   for  the  purpose  of
            evading  the  reporting requirement  of  
            103.22 with respect to such transaction:

                              . . .

              (c)  Structure (as that term is defined
            in   103.11(n) of this part) or assist in
            structuring, or attempt  to structure  or
            assist  in  structuring, any  transaction
            with  one  or  more   domestic  financial
            institutions.

31 C.F.R.   103.53.

          Regulation  31   C.F.R.     103.11(n)   (1989)  defines

"structure" or "structuring" as:

              (n)    Structure  (structuring).    For
                                             
            purposes  of  section  103.53,  a  person
            structures a transaction if  that person,
            acting alone, or in conjunction  with, or
            on  behalf of, other persons, conducts or
            attempts   to   conduct   one   or   more
            transactions in currency, in  any amount,
            at one or more financial institutions, on

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                                32

            one or more days,  in any manner, for the
            purpose   of    evading   the   reporting
            requirements under section 103.22 of this
            Part.  "In  any manner" includes,  but is
            not limited to,  the breaking  down of  a
            single sum of currency  exceeding $10,000
            into smaller sums,  including sums at  or
            below  $10,000,  or   the  conduct  of  a
            transaction,   or   series  of   currency
            transactions,  including  transactions at
            or  below $10,000.    The transaction  or
            transactions need not exceed  the $10,000
            reporting   threshold   at   any   single
            financial institution on  any single  day
            in order to constitute structuring within
            the meaning of this definition.

31 C.F.R.   103.11(n) (1989); see also S. Rep. No. 433  at 22, 25
                                      

("structuring" is  "breaking up of  what is really  one financial

transaction  into   several  smaller  ones  to   evade  reporting

requirements").

          During  the   hearings  preceding  enactment   of  this

legislation concern  was expressed  that this maze  of interwoven

regulations and  statutes, although aimed  at crippling organized

crime, "could lead to  prosecution of people who were not  in any

way involved in money  laundering."  See  S. Rep. No. 433 at  12;
                                        

see  also John  K. Villa,  A Critical  View of  Bank  Secrecy Act
                                                                 

Enforcement and the Money Laundering Statute, 37 Cath.  U.L. Rev.
                                            

489  (1988).    The present  appeals  are  living  proof of  that

prophecy.  Appellants  are being prosecuted for violation  of the

money laundering  statutes notwithstanding  that they are  not in

any way involved in such activities.

          The situation presented by  these charges is not unlike

that in  McNally v. United States, 483  U.S. 350 (1987), in which
                                 

the Supreme Court  reversed a unanimous  litany of circuit  court

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                                33

decisions18  condoning the  extension of  the federal  mail fraud

statute19 beyond  the scope of  Congress' intended coverage.   In

charging  appellants  under  the  money laundering  statutes  the

government similarly overlooked that "[i]n considering  the scope

of [a] statute it  is essential to remember Congress'  purpose in

enacting it."  Id. at 365 (Stevens, J., dissenting).
                  

          In prosecuting appellants under the Bank Secrecy Act as

amended by the  Money Laundering Control Act, the  government has

transgressed  Congress'   purpose  in  the  enactment   of  these

statutes,   which   was   to   detect   and   punish   "financial

transaction[s]  represent[ing]  the  proceeds  of  some  form  of

unlawful activity," 18 U.S.C.   1956(a)(1).  We should  not stand

idly  while  this overreaching  transforms  common citizens  into

criminals.

                     II.  THE CHEEK STANDARD
                                            

          While it could  have been  possible to  leave Cheek  v.
                                                             

United States, 498 U.S. 192,  111 S. Ct. 604 (1991), out  of this
             

appeal  altogether, the  majority opinion  seeks to  restrict its

present and future use by preemptive  action.  I believe it would

be more appropriate to consider one case at a time.  Furthermore,

lest there be any doubt, I certainly am not  of the view that the

Cheek standard should  apply in blanket fashion "to virtually all
     

white collar crimes that require a mens rea of willfulness as  an
                                           

                    

18  Including some from  this circuit.  See, e.g., United  States
                                                                 
v. Silvano, 812 F.2d 754 (1st Cir. 1987).
          

19  18 U.S.C.   1341.

                               -34-
                                34

element  of  the  offense."    Ante  at  18.    In  my view  each
                                   

legislative  scheme  must  be separately  pondered  to  determine

whether Cheek applies.  But I cannot agree that because Cheek was
                                                             

an income tax  case that the principle espoused therein regarding

mens rea  is necessarily limited to  such tax cases.   I can find
        

nothing in  Cheek to  justify such  a  conclusion or  limitation.
                 

Logic  and  fundamental  fairness dictate  that  some traditional

legal  maxims, up to now  blindly accepted, make  little sense in

the context  of some of today's  complex regulatory environments.

Ultimately  Cheek stands for the proposition that at some point a
                 

legal fiction  may so depart from reality as to be untenable as a

basis for criminal responsibility.

          In  Cheek, the  Supreme Court  examined the  meaning of
                   

"willfully" as used in the income tax statutes.  Defendant Cheek,

a commercial  airline pilot, refused  to file income  tax returns

after 1979.   As a  result, Cheek  was indicted and  charged with

willfully violating 26 U.S.C.    7203 &amp; 7201.20

          At  trial,  Cheek presented  as  his  defense that  "he

sincerely    believed   that    the    tax   laws    were   being

unconstitutionally enforced and that his actions during 1980-1986

period were lawful."  Cheek, 498 U.S. at    ,  111 S. Ct. at 607.
                           

During  deliberations,  the jury  was  divided  on whether  Cheek

honestly  and reasonably believed that he was not required to pay

                    

20  Section  7201 criminalizes  the "willful[]  attempt[] in  any
manner to  evade or defeat any  tax imposed by this  title or the
payment thereof."  26  U.S.C.   7201.  Section  7203 criminalizes
the willful failure to file a return as required under Title 26.

                               -35-
                                35

income taxes.   However, the district  court instructed the  jury

"that  a good-faith misunderstanding of  the law or  a good faith

belief that  one is  not violating  the law, if  it is  to negate

willfulness,  must be objectively reasonable."   498 U.S. at    ,

111 S. Ct. at 608.  With this instruction in hand, the jury found

Cheek guilty  on all counts.   Cheek appealed on  the ground that

this instruction was erroneous.  The Seventh Circuit affirmed.

          The Supreme  Court, relying  on its prior  criminal tax

precedents  interpreting the  word "willfully,"  reversed Cheek's

conviction.   It  held that  no matter  how unreasonable  a judge

might deem Cheek's beliefs, the jury must have the opportunity to

hear them and make the final determination as to whether he had a

good faith misunderstanding  of the  law or a  good faith  belief

that he was not violating  the law, thus negating the element  of

willfulness.  498 U.S. at    , 111 S. Ct. at 610.21

          Cheek establishes  that the government must  prove in a
               

criminal  tax case  a "willful"  violation, which  requires proof

that a  defendant voluntarily and intentionally  violated a known

legal duty.  498 U.S.  at    , 111 S. Ct. at 611.   More in point

with the present appeals, however, the Court stressed that

            [t]he   proliferation  of   statutes  and
            regulations   has   sometimes   made   it
            difficult for the average citizen to know
            and comprehend  the extent of  the duties

                    

21   The Court therefore held that  the district court erred when
it instructed the jury that  Cheek's "asserted beliefs that wages
are not income and that he was not a taxpayer  within the meaning
of the Internal Revenue Code should not be considered by the jury
in determining whether Cheek  has acted willfully."  498  U.S. at
   , 111 S. Ct. at 613.

                               -36-
                                36

            and  obligations imposed by the tax laws.
            Congress  has  accordingly  softened  the
            impact of the  common-law presumption  by
            making specific intent to violate the law
            an  element  of certain  federal criminal
            tax offenses.

498 U.S. at    ,  111 S. Ct. at 609.   The Court could  well have

been talking about the  arcane money laundering regulatory scheme

presented by these appeals.

          It  is pointed out that the application of Cheek to the
                                                          

anti-structuring  statute was  rejected by  the Tenth  Circuit in

United States v. Dashney, 937 F.2d 532 (10th Cir.), cert. denied,
                                                                

60 U.S.L.W.  3343 (1991),  and that  other  courts have  followed

Dashney's  analysis.  See United  States v. Brown,  954 F.2d 1563
                                                 

(11th  Cir. 1992); United States v. Rogers, No. 91-5106, slip op.
                                          

(4th Cir. Apr. 24, 1992).

          In   Dashney,  the  court   concluded  that  the  anti-
                      

structuring  act did not require,  as an element  of the offense,

proof  of a  specific  intent to  violate  the act  because,  the

provisions of the anti-structuring act are "straightforward" when

compared  to  the  criminal  tax  statutes  at  issue  in  Cheek.
                                                                

Dashney, 937 F.2d at  540.  After spending a  considerable amount
       

of time studying these statutes and regulations, as well as their

legislative history, I must confess to a different view.

          The conclusion that engaging in a currency  transaction

is  more "straightforward" than filing an income tax return is at

best,   unconvincing.    The  legal duty  at  issue  here --  the

illegality of  structuring a transaction  in order  to prevent  a

bank from filing a  currency transaction report -- does  not even

                               -37-
                                37

approximate  the general  knowledge of the  duty of  taxpayers to

file  an income  tax return.22   The  statutes criminalizing  the

conduct of failing to file an income tax  return have been around

for more than 70  years whereas the anti-structuring act  did not

clearly criminalize the conduct of structuring transactions until

1986, when Congress  enacted 31  U.S.C.    5324 and  5522.23   If

nothing  else emerges from a study of this byzantine labyrinth of

legislation  and regulation,  it is  that an  unsuspecting common

citizen can easily  fall prey to  this uncommon area of  the law.

Apparently, with  this in mind the  Treasury Department proposed,

but  failed  to  adopt,  regulations  aimed  at  publicizing  the

criminal  offense underlying    5324.   See  54 Fed.  Reg. 20,398
                                           

                    

22  In Cheek, Justice Blackmun, with whom Justice Marshall joined
            
in dissent, stated that:

            [I]t  is incomprehensible  to me  how, in
            this day,  more than 70  years after  the
            institution of our present federal income
            tax  system  .   .  .  any   taxpayer  of
            competent  mentality  can  assert as  his
            defense    to   charges    of   statutory
            willfulness the proposition that the wage
            he receives  for his labor is  not income
            . . . .

498 U.S. at    , 111 S. Ct. at 615.

23  In  fact, until the enactment of the  Money Laundering Act, a
conflict among the circuits existed as  to whether it was a crime
to structure deposits for the purpose of preventing the bank from
reporting.  Compare United States v. Larson, 796 F.2d 244, 246-47
                                           
(8th  Cir. 1986); United States  v. Varbel, 780  F.2d 758, 760-63
                                          
(9th  Cir. 1986); United States v. Denemark, 779 F.2d 1559, 1561-
                                           
64 (11th Cir.  1986); United  States v. Anzalone,  766 F.2d  676,
                                                
679-83 (1st Cir.  1985) with  United States v.  Heyman, 794  F.2d
                                                      
788,  790-93 (2d Cir.), cert. denied, 479 U.S. 989 (1986); United
                                                                 
States  v. Cook, 745 F.2d  1311, 1314-16 (10th  Cir. 1984), cert.
                                                                 
denied,  469 U.S. 1220 (1985); United States v. Tobon-Builes, 706
                                                            
F.2d 1092, 1096-1101 (11th Cir. 1983).

                               -38-
                                38

(1989).    It is  obvious that  our  Anzalone opinion  had little
                                             

effect  on bureaucratic thinking.  See Anzalone, 766 F.2d at 681-
                                               

82.

          I  recognize,  as  has   the  majority,  that  not  all

appellants are in the same legal position on this last issue.  In

my  opinion,  in case  No.  91-1574,  appellant Donovan  received

substantially  the  jury charge  that  he was  entitled  to under

Cheek.  Appellants Aversa and Mento in cases Nos. 91-1363 and 91-
     

1364 did not.  The problem is, nevertheless, that in my view none

of the appellants should have been charged because, as previously

explained, the government overstretched  its anti-moneylaundering

net.  Consequently, I must dissent.

                               -39-
                                39
