
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                      __________          No. 93-1898                                    UNITED STATES,                                      Appellee,                                          v.                                  MICHAEL B. LONDON,                                 Defendant, Appellant                                       _______                                        Before                               Torruella, Chief Judge,                                          ___________                      Coffin and Bownes, Senior Circuit Judges,                                         _____________________                 Selya, Cyr, Boudin, Stahl and Lynch, Circuit Judges.                                                      ______________                                      __________                                    ORDER OF COURT                              Entered:  October 20, 1995                                      __________                    The panel of judges that rendered  the decision in this          case having voted to deny the petition for rehearing submitted by          the appellant and the  suggestion for the holding of  a rehearing          en banc having  been carefully  considered by the  judges of  the          court in regular active service and a majority of said judges not          having voted to order that the  appeal be heard or reheard by the          court en banc.                __ ____                    It is  ordered  that a  petition  for rehearing  and  a          suggestion for rehearing en banc be denied.                                   __ ____                             TORRUELLA,  Chief  Judge   (Dissenting).     I                             TORRUELLA,  Chief  Judge   (Dissenting).                                         ____________          believe the panel opinion in this case is contrary to the Supreme          Court's  decision in  Ratzlaf v.  United States,  114 S. Ct.  655                                _______     _____________          (1994).  I reach this conclusion for primarily two reasons.                    First,  Ratzlaf  held  that   in  order  to  sustain  a                            _______          conviction  for  "structuring"  under  31 U.S.C.     5324(3)  the          government  must prove  that the  defendant acted  with knowledge          that  his  conduct  was   unlawful.    In  my  view,   the  clear          implication, if  not the plain  language, of Ratzlaf  precludes a                                                       _______          structuring conviction based on  the "reckless disregard"  theory          utilized  in this  case.   Second, in  denying the  petition, the          majority virtually ignores  the fact that our  decision in United                                                                     ______          States v. Aversa, 984 F.2d 493  (1st Cir. 1993) (en banc),  which          ______    ______          upheld  a reckless  disregard jury  instruction, was  vacated and          remanded by the Supreme Court "for further consideration in light          of"  Ratzlaf.   See  Donovan v.  United  States, 114  S. Ct.  873               _______    ___  _______     ______________          (1994).   Because the Court  had just decided  Ratzlaf, one would                                                         _______          think  that if  Aversa was  consistent with  that case  the Court                          ______          would  simply have  denied  the writ  of  certiorari.   The  most          logical  inference from this state  of affairs is  that the Court          viewed our pre-Ratzlaf decision in Aversa as contrary to Ratzlaf,                         _______             ______                _______          and wanted to give us a chance to remedy it.  We should do so.                    Because  I  believe  the  panel  opinion  misinterprets          settled  law, I  dissent  from the  denial  of the  petition  for          rehearing or rehearing en banc.                                 __ ____
