
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1882                                    UNITED STATES,                                      Appellee,                                          v.                                  ARTHUR M. MARDER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Richard J. Shea for appellant.            _______________            Cynthia  A. Young,  Attorney,  Department of  Justice,  with  whom            _________________        Donald K.  Stern, United  States Attorney, District  of Massachusetts,        ________________        and Ernest S. Dinisco, Assistant United States Attorney, were on brief            _________________        for appellee.                                 ____________________                                   February 2, 1995                                 ____________________                      BOWNES, Senior Circuit Judge.  Defendant-appellant,                      BOWNES, Senior Circuit Judge.                              ____________________            Arthur Marder,  was  convicted by  a  jury on  all  seventeen            counts of the indictment  against him.  Twelve counts  of the            indictment were predicated  specifically on illegal  gambling            allegedly in violation of Massachusetts General Laws ch. 271,               7 and 17.  The counts involving the Massachusetts statutes            were:   two  RICO  counts; two  counts  of  using  interstate            facilities in aid of racketeering; one count  of operating an            illegal   gambling  business;  and   seven  counts  of  money            laundering.   There  can  be no  doubt  of the  right  of the            federal government to base a federal crime upon the violation            of a state statute.  Sanabria v. United States,  437 U.S. 54,                                 ________    _____________            70 (1978).                      The five  other counts  charged income  tax evasion            (three  counts), a count of conspiracy  to defraud the United            States by impeding  the lawful  functions of the  IRS, and  a            count of illegally structuring monetary transactions.                      Defendant   mounts   three   challenges    to   his            conviction:   that  there were  no illegal  gambling offenses            under the  Massachusetts statutes,  and that, if  there were,            the  court's  instruction on  them  was  erroneous; that  the            currency transaction conviction lacked sufficient evidentiary            foundation, and the court erred in its instruction on it; and            that there were sentencing errors.                                         -2-                                          2                      Most  of the  essential facts  are not  in dispute,            only  the inferences and  conclusions to be  drawn from them.            We must, of course, review the facts and all inferences to be            drawn  from   them  in  the  light  most   favorable  to  the            government.  United States v. Cotto-Aponte, 30 F.3d 4, 5 (1st                         _____________    ____________            Cir. 1994);  United States v.  Hernandez, 995  F.2d 307,  311                         _____________     _________            (1st Cir.), cert. denied, 114 S. Ct. 407 (1993).                        _____ ______                I.  ILLEGAL GAMBLING UNDER THE MASSACHUSETTS STATUTES                I.  ILLEGAL GAMBLING UNDER THE MASSACHUSETTS STATUTES                      Defendant owned  and operated the  Revere Amusement            Company ("Revere") from 1981  to 1989.  Revere's  income came            from the operation  of video poker machines that  were placed            in  an  assortment of  bars,  taverns,  and social  clubs  in            Revere, Massachusetts.  The  poker machines operated somewhat            like slot machines.   The machine was  activated by inserting            money into it,  at least a  quarter.  The  player would  then            manipulate  a button to obtain  a poker hand.   The machine's            video screen  would display  five cards representing  a poker            hand.   Before the  "play" began,  the  screen displayed  the            payoffs for winning hands;  i.e., a hand consisting  of three            of a  kind might pay twelve  to one.  Credits  were given for            winning  hands.   For  example, a  full  house might  pay ten            credits.    After  a  winning  player  finished  playing  the            machine, he exchanged his credits for cash.  The cash payment            was  made by  the person  in charge  of the  establishment in            which  the  machine(s) was  located.    Defendant and/or  his                                         -3-                                          3            employees  visited the  approximately seventeen  places where            the poker machines  were located on a regular  basis, usually            daily.  The proprietors of the establishments were reimbursed            for the payoffs  and then the  machine's proceeds were  split            with  them.     Normally,  no   records  were  kept   of  the            transactions.    And,  of  course,  only  defendant  and  his            employees had  access  to  the monies  paid  into  the  poker            machine.                      In 1985  defendant decided  to enjoy the  fruits of            his   profitable  business   and   moved  to   Palm  Springs,            California.   Defendant's  son,  Steven, then  took over  the            daily  operation  of Revere.1    Defendant,  however, kept  a            tight  reign on  Revere's operations from  Palm Springs.   He            received between  $4,000 to $10,000  in cash by  express mail            several times a week.   At irregular intervals, he  asked his            employees to  keep records  of the  transactions so he  would            know what was going on.                      Revere's income from the poker machines amounted to            about $500,000 per year.  There  was convincing evidence that            defendant  made regular  payoffs  to  local police  officers,            politicians, and organized crime.   Neither defendant nor his            company  paid state  or  federal  income  tax on  the  income            generated by the video poker game machines.                                            ____________________            1.  Steven Marder was indicted along with his father; he pled            guilty prior to trial.                                         -4-                                          4                      With  this  factual  background,  we  turn  to  the            question of whether defendant's poker game  business violated            the implicated  Massachusetts statutes.  This  is, of course,            primarily a question of  Massachusetts law.  And there  is no            Massachusetts  case directly  on  point.   We first  consider            Mass. Gen. L. ch. 271,   17, which provides:                         17.   Place  for  registering bets  or                         17.   Place  for  registering bets  or                      dealing  in  pools;  owner  or  occupant;                      dealing  in  pools;  owner  or  occupant;                      custodian or depository                      custodian or depository                         Whoever keeps  a building or  room, or                      any  part  thereof,  or  occupies,  or is                      found  in,  any  place,  way,  public  or                      private,  park or  parkway,  or any  open                      space, public or private, or  any portion                      thereof,  with  apparatus,  books or  any                                                        _______                      device, for registering  bets, or  buying                      _________________________________________                      or  selling pools, upon  the result  of a                      _________________________________________                      trial  or  contest  of  skill,  speed  or                      _________________________________________                      endurance of man, beast, bird or machine,                      _________________________________________                      or   upon   the   result   of   a   game,                      _________________________________________                      competition,     political    nomination,                      appointment  or  election, or  whoever is                      present  in  such  place,  way,  park  or                      parkway,  or any such  open space, or any                      portion thereof, engaged in such business                      or  employment;  or,  being such  keeper,                      occupant, person found or person present,                      as  aforesaid,  registers  such bets,  or                      buys or sells such pools, or is concerned                      in buying  or selling the same; or, being                      the  owner,  lessee   or  occupant  of  a                      building or  room,  or part  thereof,  or                      private  grounds,  knowingly permits  the                      same to be used  or occupied for any such                      purpose, or therein keeps, exhibits, uses                      or  employs, or  knowingly permits  to be                      therein   kept,    exhibited,   used   or                      employed,  any  device  or apparatus  for                      registering such bets,  or for buying  or                      selling  such  pools, or  whoever becomes                      the  custodian  or  depository for  hire,                      reward, commission or compensation in any                      manner, of any  pools, money, property or                                         -5-                                          5                      thing of value,  in any manner staked  or                      bet upon  such result, shall  be punished                      by  fine of  not more than three thousand                      dollars or by  imprisonment in the  state                      prison for not more than three years,  or                      in jail  or the  house of  correction for                      not more  than two  and  one half  years.                      (Emphasis added.)                      We note first  that the statute  is not limited  to            bookmaking in the traditional sense.  It includes "any device            for registering  bets, or buying  or selling pools,  upon the            result of a trial or contest  of skill, speed or endurance of            man, beast, bird or machine, or upon the result of a game . .            .  ."   This  is broad and encompassing language.   We do not                                think that it  excludes the  placing of bets  on video  poker            games as a matter of statutory construction.                         Although there are  no Massachusetts cases directly            on point, there are three that indicate that betting on video            poker  games violates   17.  In Commonwealth v. Club Caravan,                                            ____________    _____________            Inc. (and  eighteen companion  cases), 571 N.E.2d  405 (Mass.            ____ ________________________________            App. Ct.  1991), the court made  several significant rulings.            It  upheld the  ruling of the  trial judge that  "play on the            video  poker machines in question involved as a matter of law            an  element  of  skill,  thus  qualifying  the  machines  for            licensure under Mass. Gen. L.  c. 140,   177 A(1) and  (2) as            automatic  amusement  devices."      Id. at  406.   The court                                                 ___            explained:                         Since   the   video   poker   machines                      involved   an   element   of  skill   and                      ostensibly  paid  off  winners only  with                                         -6-                                          6                      free games, the judge correctly dismissed                      the  indictments  based solely  on having                      such machines  on  hand for  the  use  of                      patrons.  The  judge correctly ruled,  we                      think,  that  licensed  machines so  used                      were exempt not only  from G.L. c. 271,                        7,  this exemption being explicit in G.L.                      c. 140,   177A(7),  but also from G.L. c.                      271,     5 and  17, seemingly overlapping                      statutes which in relevant  part prohibit                      keeping  a place  for  gaming or  keeping                      gaming apparatus.  The purpose of   177A,                      to  legalize  and  license machines  that                      utilize some element of skill and pay off                      winners  only  with  free   games,  would                      otherwise be thwarted.            Id.  at  407.     The  court  noted  that  the   trial  judge            ___            differentiated between  video poker games and  "actual use of            the  machines for gambling: i.e.,  paying off in money rather            than free games," id. and drew the following line:                              ___                      Where  a machine  was used  for gambling,                      i.e.,  where  there  was  evidence  of  a                      payoff  to  a customer,  the  judge ruled                      that the machine, by the express terms of                      G.L. c.  140,   177A(6), was in violation                      of   that   statute   and   thus   lacked                      protection from the  prohibitions of  the                      gaming laws such as G.L. c. 271,    5, 7,                      8, and 17.            Id. at 407-08.  The court explicitly refrained from ruling as            ___            to the  applicability of    17 to  video poker machines.   It            explained:                           An argument was made by the defendants                      below  that     17  was aimed  at  bookie                      operations, i.e., registering of  bets on                      contests such as horseracing, dog racing,                      football   point  spreads,   or  numbers,                      rather  than at  slot  machines or  other                      gambling devices.  The argument, rejected                      by the  judge, is  not  advanced in  this                      appeal,  which concerns  only indictments                                         -7-                                          7                      dismissed  by  the judge.   We  intend no                                                  _____________                      ruling as to the applicability of   17 to                      _________________________________________                      video poker machines.                      ____________________            Id. at 408 n.6.  (Emphasis added.)            ___                      It was  held in  Commonwealth v. Boyle,  189 N.E.2d                                       ____________    _____            844, 846  (Mass. 1963) that, "possession  of gaming apparatus            anywhere is punishable" and "[t]he possession of any recorded            memorandum intended to be a minute of a bet is sufficient  to            demonstrate a violation of either Mass. Gen. L. c. 271   7 or            17  or both of these sections, depending upon the contents of            the memorandum."                      In  Commonwealth v.  Sousa, 600 N.E.2d  1012 (Mass.                          ____________     _____            App. Ct. 1991),  the appeals court noted  that, registering a            bet "usually  connotes a  recording  or notation."   It  also            stated:  "One may 'register' a bet, however, by committing it            to memory."  Id. at 1016.                         ___                      We think there was sufficient evidence from which a            reasonable  jury could find that a video poker machine was "a            device for  registering bets"  within the  meaning  of    17.            After  inserting  the  required  amount  of  money  into  the            machine,  the player  selected the  number  of credits  - the            amount he wanted to bet.  The machine "registered" the bet by            displaying  the number of credits he had selected and set the            odds on  winning the poker  hand dealt the player.   The bets            had to be registered by the machine so that the odds could be            set.  Moreover, the bets had  to be registered on the machine                                         -8-                                          8            because  defendant and/or  his  employees  determined,  after            opening the machine, the  amount of reimbursement for payouts            due the proprietors of  the establishments where the machines            were located.  And we think it could be reasonably found that            the  statute included  the defendant  as one  who sold  pools            "upon the result  of a trial  or contest of skill"  . . .  or            "upon the result of a game."                       We  rule, based on  the evidence, the  words of the            statute  and  Massachusetts case  law,  that  the jury  could            lawfully find defendant violated Mass. Gen. L. ch. 271,   17.                      Mass. General Laws ch. 271,   7 provides:                        7.   Lotteries; disposal of property by                        7.   Lotteries; disposal of property by                      chance                      chance                         Whoever sets up  or promotes a lottery                      for money or other  property of value, or                      by  way  of   lottery  disposes  of   any                      property of  value, or under  the pretext                      of  a  sale,  gift or  delivery  of other                      property  or of  any right,  privilege or                      thing whatever  disposes of or  offers or                      attempts to dispose of any property, with                      intent  to  make  the   disposal  thereof                      dependent upon or  connected with  chance                      by  lot, dice,  numbers, game,  hazard or                      other   gambling  device,   whereby  such                      chance  or device  is made  an additional                      inducement to  the  disposal or  sale  of                      said property, and whoever aids either by                      printing  or writing,  or is  in any  way                      concerned, in the setting up, managing or                      drawing  of  such  lottery,  or  in  such                      disposal or  offer or attempt  to dispose                      of property  by  such chance  or  device,                      shall be  punished by a fine  of not more                      than   three   thousand  dollars   or  by                      imprisonment in the state prison  for not                      more than three years,  or in jail or the                                         -9-                                          9                      house of correction for not more than two                      and one half years.                      Defendant's  attack  on      7  takes  a  different            approach  than  his  doesn't-apply  challenge to     17.   He            acknowledges  that "[a]  video poker  machine which  pays off            'hits in cash can amount to a 'lottery' under   7."  Brief at            31.  His argument is that it was not proven by the government            that chance  predominated over  skill in playing  video poker            and therefore there was no lottery within the meaning of   7.                      The Massachusetts law is  reasonably clear that for            there  to be a lottery, chance must predominate over skill in            the results of  the game, or  the element  of chance must  be            present in such  a manner as to thwart  the exercise of skill            or  judgment in a game.   Commonwealth v.  Plissner, 4 N.E.2d                                      ____________     ________            241,  245  (Mass. 1936).   In  Commonwealth v.  Club Caravan,                                           ____________     _____________            Inc.,  571 N.E.2d at 406, the appeals court held that play on            ____            video  poker machines  "involved as  [sic] matter  of law  an            element of skill."                      The  government contends that  there was sufficient            evidence  for the jury to find  that chance predominated over            skill  in playing video poker.   Viewing the  evidence in the            light  most favorable to the government, we agree.  There was            testimony that  the machine  dealt the cards  electronically,            although  a player could choose what cards to discard.  There            was testimony that winning depended on the cards dealt by the            machine.  A hand of video poker was played before the jury in                                         -10-                                          10            the courtroom.  The jury could judge for themselves whether a            substantial  element  of  chance  was involved.    There  was            testimony that one  hand of video poker took from  two to ten            seconds to play.  Unless a player has a mind like a computer,            this  is hardly sufficient time to use poker skills.  Another            factor  that  the  jury  could  take  into  consideration  in            determining  whether  video poker  was  a  game dominated  by            chance  or   skill  was  the  profit   that  defendant  made.            Obviously, there  were a great many more losers than winners.            Skill  might  have played  a role  in  the video  poker games            operated by defendant, but it did not dominate.                      We rule,  therefore, that  the jury lawfully  could            find defendant to have operated a lottery that was prohibited            by chapter 271,   7 of the Massachusetts General Laws.                     The Jury Instruction -- Waiver or Forfeiture                     The Jury Instruction -- Waiver or Forfeiture                     ____________________________________________                      Defendant   claims  that   the   court   erred   in            instructing the  jury on the  Massachusetts statutes relative            to  gambling by  refusing  to  read  the  statutes  in  their            entirety  to the  jury.   There was  no objection  by defense            counsel.   Failure to  object to a  jury instruction  usually            means that  our review is  conducted under the  "plain error"            doctrine.    In this  case,  however,  the government  argues            strenuously  that  defendant  waived  any  objection  to  the            instruction and  is, therefore, foreclosed  from arguing  the                                         -11-                                          11            issue  on appeal.  We  start our analysis  by rehearsing what            happened in the trial court.                      At  the pre-charge  conference  the district  court            started  to discuss  the  government's  instruction  request,            number 38.  This request asked  that the texts of Mass.  Gen.            Laws ch. 271,    7 and 17 be read in full to the jury.   Then            followed this colloquy  between the court  and counsel.   The            prosecutor is Tuteur; defense counsel is Duggan.                         THE  COURT:    And,  we  will go  into                      Government's 38.                         And, I don't think  I am going to give                      this law in the description of Section 17                      and 19.  What I would be inclined to tell                      them is the following  -- and, I think it                      may be the end of the Government's 38.                         MR. TUTEUR:  38-A as well.                         THE  COURT:   Well, I  am inclined  to                      tell them just what is the last paragraph                      of  Government *38.   You  are instructed                      that  the video  poker machines  are used                      for amusement purposes  only by  offering                      nothing more than the opportunity  to win                      games.    However,   when  the   evidence                      indicates beyond a  reasonable doubt,  or                      proves  beyond  a  reasonable doubt  that                      video   poker   machines  are   used  for                      gambling, that is, where cash payoffs are                      given,  then  Massachusetts law  has been                      violated.  Okay?                         MR. TUTEUR:   Can I back  the Court up                      for  just  a  minute.    On  the  illegal                      gambling business, is the  Court inclined                      to  give  an instruction  regarding gross                      revenue?                         THE  COURT:   Right.   I  am going  to                      cover that.  I am going to cover 38(a) on                      licensing  and  basically tell  them what                      they want to hear.  And, I think on these                      stipulations  tomorrow  that they  should                      not focus  on the license but  on whether                      the  evidence proves  they were  used for                      gambling.                                         -12-                                          12                         MR.  DUGGAN:   Back  on  38  where the                      General Laws,  Massachusetts General Laws                      271 and 17 is  cited, and the notion that                      the  statute is  violated where  one with                      the intent to --                         THE COURT:  I just told you, I am not.                      I  mean*,  if it  is  true,  if the  last                      paragraph of their 38  is true,2 I am not                      going to  tell them what 271  and 17 say.                      I think it is just tremendously confusing                      in the context of this case.  Okay?                         MR. DUGGAN:  Yes.                         THE  COURT:  I mean  the key is:  Have                      they  proved  beyond  a reasonable  doubt                      that they are used for gambling, that you                      get money  for games?   That is  a crime,                      there  is no dispute  under state  law on                      that.  The rest of this stuff is just --                      It  is  the  government's contention  that  defense            counsel's  (Duggan)  answer "Yes"  to  the  court's question,            "Okay?"  was an  acceptance and  approval of  the instruction            and, therefore, he cannot raise the issue on appeal.                      The   most   authoritative  case   on   waiver  and            forfeiture under Fed. R.  Crim. P. 52(b) is United  States v.                                                        ______________            Olano, 113 S. Ct. 1770 (1993).  The Court pointed out:            _____                         Waiver  is different  from forfeiture.                      Whereas forfeiture is the failure to make                      the  timely assertion of  a right, waiver                      is  the  "intentional  relinquishment  or                      abandonment of  a  known right."  .  .  .                      Whether a particular  right is  waivable;                      whether  the  defendant must  participate                      personally in the waiver; whether certain                      procedures are required  for waiver;  and                      whether  the  defendant's choice  must be                      particularly  informed or  voluntary, all                      depend on the right at stake. . . .  Mere                                            ____________________            2.  The last  paragraph of government's request  number 38 is            not  in the  record.   We do  not think  it is  necessary for            understanding the issue.                                         -13-                                          13                      forfeiture,  as  opposed to  waiver, does                      not  extinguish  an  "error"  under  Rule                      52(b). .  .  .    If  a  legal  rule  was                      violated   during   the  District   Court                      proceedings, and if the defendant did not                      waive the  rule, then  there has  been an                      "error"  within the meaning of Rule 52(b)                      despite   the   absence   of   a   timely                      objection.            Id. at 1777 (citations and quotations omitted).            ___                      Our survey of the cases in this esoteric procedural            corner of the federal law convinces us that defendant did not            waive  the issue.   In United States v.  Lakich, 23 F.3d 1203                                   _____________     ______            (7th  Cir. 1994), counsel had overnight to think how the jury            should  be  instructed  in  response to  its  question  about            entrapment.   The  next  morning the  court, after  eliciting            comments from counsel, read its proposed instruction to them.            Both counsel  explicitly agreed  to the  court's instruction.            The  court of  appeals  held that  under these  circumstances            defendant had waived  any objections to the instruction.  Id.                                                                      ___            at 207-08.                        Lakich is a far  cry from the  case before us.   In                      ______            the instant case the court cut off defense counsel's question            before  it was finished.   It is difficult  to determine just            what defense counsel was going  to ask, particularly in light            of the fact  that it  was the government  that requested  the            Massachusetts statutes be read in their entirety to the jury.            For  aught we know, defense counsel  was simply agreeing that            the statutes  were  confusing.   Or  perhaps  he  thought  it                                         -14-                                          14            prudent  to simply say, "Yes" and move  on.  In any event, we            think the attempted colloquy between  defense counsel and the            court is too thin a peg on which to hang a finding of waiver.                      This case clearly does not fall within the ambit of            waiver resulting from a tactical decision not to object.  See                                                                      ___            United  States v. Mihm, 13  F.3d 1200, 1204  (8th Cir. 1994);            ______________    ____            United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991).            _____________    ______                      We  are also reluctant  to find  a waiver  in these            circumstances because the cases  in our own circuit send  out            conflicting signals.   In United States  v. Rojo-Alvarez, 944                                      _____________     ____________            F.2d  959, 971  (1st Cir.  1991), we  held that  there was  a            waiver  when,  after the  court  reworded  an instruction  in            response to defendant's objection,  defense counsel stated he            was satisfied  with the reworded instruction.   Even assuming            that this is  the law of  the circuit,3 there  was no  direct            inquiry from the court in the instant case nor an unequivocal            assent  to the instruction by defense counsel.  There are two            prior  cases in  this circuit  that  cut the  other way.   In            United  States v. Espinal, 757 F.2d 423, 426 (1st Cir. 1985),            ______________    _______            we  held:  "When  a charge is given  as requested by counsel,            the  defects, if any, must  rise to the  level of plain error            affecting substantial rights  in order to justify  reversal."            There was no mention of waiver.  In United States v. Drougas,                                                _____________    _______            748  F.2d 8,  30  (1st  Cir.  1984),  we  held  that  defense                                            ____________________            3.  Rojo-Alvarez was not an en banc opinion.                ____________            _______                                         -15-                                          15            counsel's  explicit  approval  of  an  instruction  bars  any            objection  except upon the grounds of plain error.  These two            cases appear to  be somewhat  at odds with  United States  v.                                                        _____________            Kakley,  741 F.2d  1,  3 (1st  Cir.  1984), which  held  that            ______            requesting an  instruction that is given  amounts to "invited            error,"  and whatever  error  occurred may  not be  raised on            appeal.   All  of  the cases  cited  in this  paragraph  were            decided prior to Olano.   This panel regards the  question as                             _____            open.                      Because of  the uncertainty as  to whether  defense            counsel had explicitly approved  the instruction and in light            of the conflicting  decisions of this circuit,  we decline to            finda waiverhere. We, therefore,turn toa plainerror analysis.                      United States v. Olano,  113 S. Ct. 1770, considers                      _____________    _____            in detail the doctrine of plain error under Fed. R.  Crim. P.            52(b).   Its teaching may be capsulized as follows:  "'Plain'            is synonymous with 'clear' or, equivalently, 'obvious.'"  Id.                                                                      ___            at 1777.  The requirement of Rule 52(b) that the error affect            substantial  rights  "means that  the  error  must have  been            prejudicial:    It must  have  affected  the  outcome of  the            District  Court proceedings."  Id. at 1778.  And "[i]t is the                                           ___            defendant rather than the Government who bears the burden  of            persuasion with respect to prejudice."  Id.  Correcting plain                                                    ___            error should  be made where  "a miscarriage of  justice would            otherwise  result."    This  "means  that  the  defendant  is                                         -16-                                          16            actually innocent  . . . but  we have never held  that a Rule            52(b) remedy is only warranted in cases of actual innocence."                            ____            Id. at  1779.  The standard  that guides the correction  of a            ___            plain error  is whether  the error "'seriously  affect[s] the            fairness,   integrity  or   public  reputation   of  judicial            proceedings.'"   Id. (quoting United States  v. Atkinson, 297                             ___          _____________     ________            U.S. 157, 160 (1936)).                      In  United States  v. Whiting,  28 F.3d  1296, 1309                          _____________     _______            (1st  Cir.   1994),  we  assumed  that   the  error  affected            substantial rights, but found that the error neither caused a            miscarriage of justice  nor seriously affected  the fairness,            integrity or public reputation of the judicial proceeding.                      We need  not go that far at this juncture.  We have            carefully  reviewed  the  trial  record  and  find  that  the            district court's  refusal  to  read  the full  text  of  each            statute did not rise to the  level of plain error because  it            did  not  affect  the outcome  of  the  trial.    It was  not            prejudicial and  did not  affect substantial rights  as those            terms  are defined in Olano.  This  ruling is not intended to                                  _____            suggest that  the instruction  as given was  error, plain  or            otherwise.                               II. THE ILLEGAL STRUCTURING                             II. THE ILLEGAL STRUCTURING                      Defendant asserts error in his conviction  under 31            U.S.C.       5322(b)   and   5324(c),  which   proscribe  the            structuring  of currency transactions to evade the regulatory                                         -17-                                          17            and statutory requirement  that banks report  to the IRS  all            currency  transactions in  amounts greater  than or  equal to            $10,000.  Citing  Ratzlaf v.  United States, 114  S. Ct.  655                              _______     _____________            (1994), which  held  that  conviction  under  these  statutes            requires proof "that the  defendant acted with knowledge that            his conduct  was unlawful," id. at  657 (interpreting meaning                                        ___            of  statutory  term  "willful"), defendant  argues  that  the            instructions given at his  trial did not require the  jury to            make the elemental determination that he knew the structuring            in  which he  was engaged  was unlawful  in order  to convict            him.4   Conceding that he did not interpose a contemporaneous            objection  at trial,  defendant contends  that  the erroneous            instructions  constitute plain  error, see  Fed. R.  Crim. P.                                                   ___                                            ____________________            4.  Ratzlaf  was decided  after the  trial  of this  case but                _______            prior to appellate argument.                                             -18-                                          18            52(b), and require  reversal of his structuring  conviction.5                      In light  of the teaching  of Ratzlaf, we  think it                                                    _______            clear  that  error  was  committed  here.    The  willfulness                                            ____________________            5.  In his  reply brief, defendant raises  a belated argument            that   we  should  apply   an  unspecified  "more  favorable"            reviewing  standard   in  assessing  his  challenge   to  the            structuring conviction.  In  defendant's view, his failure to            object to the structuring instructions given at his trial was            excusable  because Ratzlaf had  not yet been  handed down and                               _______            because all of the circuits which had then issued opinions on            the meaning of the term "willful" in the context of the anti-            structuring  statute had  defined it  in a  manner consistent            with  the district  court's  instructions.   Thus,  defendant            contends,  the  law  "did  not  support  a  request  for  the            instruction later mandated in Ratzlaf."                                          _______                      Even  if we were to  view this argument as properly            before us, cf. Sandstrom  v. Chemlawn Corp., 904 F.2d  83, 86                       ___ _________     ______________            (1st Cir. 1990) (deeming waived, in a civil case, an argument            not  made in  appellant's opening brief),  we would  not find            excusable defendant's failure to object to the now-challenged            instructions.  At the time  of defendant's trial, settled law            in this  circuit foreshadowed the Supreme  Court's conclusion            in Ratzlaf  that a conviction for  structuring requires proof               _______            that  defendant acted  with  knowledge that  his conduct  was            unlawful.   See United States  v. Bank of  New England, N.A.,                        ___ _____________     __________________________            821 F.2d 844, 854 (1st Cir.) ("A finding of willfulness under            the  Reporting  Act  must  be  supported  by   proof  of  the            defendant's knowledge  of the reporting  requirements and his            specific intent  to commit  the crime.")  (citations omitted)            (interpreting the meaning  of   5322's  willfulness provision            in   a   context  other   than       5324's  anti-structuring            provisions), cert. denied, 484 U.S. 943 (1987).  Moreover, at                         _____ ______            this  same time, we had  withdrawn an opinion  and reheard en                                                                       __            banc  a case  which  raised the  precise question  eventually            ____            decided  in Ratzlaf:   the  meaning of    5322's  willfulness                        _______            provision in the anti-structuring context.  See United States                                                        ___ _____________            v. Donovan, No.  91-1574 (1st  Cir. Feb. 6,  1992), reh'g  en               _______                                          _____  __            banc granted, opinion  withdrawn, (1st  Cir. Mar. 18,  1992),            ____ _______  _______  _________            opinion reissued as  redacted, 984 F.2d 493  (1st Cir. 1993),            _______ ________ __  ________            cert. granted and  judgment vacated, 114  S. Ct. 873  (1994).            _____ _______ ___  ________ _______            In  light  of  this  authority  and  these  events, of  which            defendant should  have been aware,  defendant's argument that            his failure to object was excusable rings hollow.                                         -19-                                          19            requirement of    5322  and 5324 demands a jury  finding that            the defendant  knew  that the  structuring  in which  he  was            engaged  was unlawful.    See Ratzlaf,  114  S. Ct.  at  663.                                      ___ _______            Defendant's jury  was not,  however, instructed to  make this            elemental  determination in  order to  convict.   In relevant            part, the trial court instructed the jury:                      [T]o  prove  this offense  the Government                      has  to prove  beyond a  reasonable doubt                      that  the  defendant  knew  each  [of the                      banks]  are required  to file  a currency                      transaction report.                      A person structures a transaction if he .                      . . intended to evade the requirement.                      [T]he Government has to  prove . . . this                      was  done willfully,  that  is, that  the                      defendant    knew   of    the   reporting                      requirement and that the  structuring had                      the purpose of evading that requirement.                      Finally, the Government has to prove that                      the   defendant   in   the   process   of                      structuring  this transaction  . .  . was                      also  violating another law of the United                      States in connection with that.                      Thus, the jury was  told that conviction was proper            if it found that defendant knew of the reporting requirement,            acted to evade it, and violated  some other law of the United            States in so acting.  The instructions were not tantamount to            charging  that in order to  convict, the jury  must find that            defendant knew that acting to evade the reporting requirement                                         -20-                                          20            was  unlawful.6     The   absence  of  such   an  instruction            constitutes a clear violation  of the defendant's due process            right to have the prosecution persuade the fact-finder beyond            a reasonable  doubt of the facts necessary  to establish each                                                                     ____            element  of   the  offense  charged,  and  defendant's  Sixth            _______            Amendment  right to a jury trial.  Sullivan v. Louisiana, 113                                               ________    _________            S.  Ct. 2078,  2080-81 (1993)  (collecting cases)  (the Sixth            Amendment jury-trial right carries within it a  right to have            the  jury find, beyond a  reasonable doubt, all  of the facts                 ____            necessary to establish each element of the offense charged).                      While the question  whether error occurred  here is            rather easily  answered in  hindsight, the questions  whether                                            ____________________            6.  Noting that  jury instructions are not to  be reviewed in            isolation, but rather "in the context of the overall charge,"            Cupp v.  Naughten, 414 U.S.  141, 147 (1973),  the government            ____     ________            contends  that a  general  instruction  on willfulness  given            elsewhere in  the charge was  sufficient to have  conveyed to            the jury the  appropriate structuring  mens rea  requirement.                                                   ____ ___            The  instruction  on  which the  government  relies provided:            "And,  for all  of the  counts except  the tax  evasion count            which has a different  definition of willfulness, the concept            of willfulness means that  somebody has acted willfully, that            he  acted  knowingly  and not  by  accident  or  mistake, and            deliberately in violation of a known legal duty."                      In our  view, this instruction cannot  be viewed as            having   cured  any   error  in   the   specific  structuring            instruction.    While  the  general  willfulness  instruction            stated that the defendant  had to have acted in  violation of            some known legal duty, it does not explicitly inform the jury            that  the defendant had  to know that  structuring itself was            illegal.  Furthermore,  by indicating that  willfulness means            something  different  in  the  structuring  and  tax  evasion            contexts  (the  latter  of  which  differs  from  most  other            criminal law  areas by requiring specific  knowledge that the            conduct at issue was criminal), the jury could  have inferred            that the actual  knowledge of illegality required in  the tax            evasion context was not required in the structuring context.                                ___                                         -21-                                          21            the  second and  third prerequisites  to reversal  under Rule            52(b) --  i.e.,  whether the  error  was plain  and  affected            defendant's  substantial  rights  --  are  considerably  more            complicated.   Although   the  challenged   instructions  are            clearly  incorrect  in  light  of Ratzlaf,  Ratzlaf  was  not                                              _______   _______            decided  at the  time  of defendant's  trial.   Moreover, the            great weight of then-existing authority indicated that actual            knowledge of  the illegality of structuring  by the defendant            was  not a precondition to  conviction.  See  Ratzlaf, 114 S.                 ___                                 ___  _______            Ct. at 665  (collecting cases).   Thus, this  case raises  an            issue that the Olano court explicitly reserved:  "We need not                           _____            consider  the special case where the error was unclear at the            time  of  trial  but  becomes  clear  on  appeal  because the            applicable law has  been clarified."   Olano, 113  S. Ct.  at                                                   _____            1777;  but  see United  States v.  Frady,  456 U.S.  152, 163                   ___  ___ ______________     _____            (1982)  ("By its terms, recourse  may be had  to [Rule 52(b)]            only  on appeal from a  trial infected with  error so 'plain'            ____            the trial judge and prosecutor were derelict in countenancing            it, even  absent defendant's  timely assistance in  detecting            it.") (dictum) (emphasis supplied).                     ______                      This issue  has engendered a split  in the circuits            since the Olano  decision.  Compare,  e.g., United States  v.                      _____             _______   ____  _____________            Calverley,  37 F.3d  160, 162-63  (5th Cir.  1994) (en  banc)            _________                                           __  ____            (error must be  clear or  obvious at time  of trial);  United                                                                   ______            States v. Washington,  12 F.3d 1128, 1138 (D.C. Cir.) (same),            ______    __________                                         -22-                                          22            cert. denied, 115  S. Ct.  98 (1994); with  United States  v.            _____ ______                          ____  _____________            Viola,  35 F.3d  37, 42  (2d Cir.  1994)  (Rule 52(b)  can be            _____            invoked even where the error was  not clear or obvious at the            time it was committed); United States v. Retos, 25 F.3d 1220,                                    _____________    _____            1230 (3d Cir. 1994)  (same); United States v. Jones,  21 F.3d                                         _____________    _____            165, 172 (7th Cir. 1994) (same).                        In  addition,  the   question  whether  the   error            affected the defendant's  substantial rights  is not  without            controversy.   Olano made clear that  substantial rights have                           _____            been  affected  only  where   there  has  been  prejudice  to            defendant, and  then confirmed that the  Rule 52(b) prejudice            inquiry  is  indistinguishable from  ordinary, harmless-error            review except for the fact  that the burden of proof  is upon            the  defendant.   113  S. Ct.  at 1777-78.    In the  present            context,  this gives  rise  to a  problem we  recently noted:            contemporary  Supreme Court cases  suggest two separate modes            of harmless-error  analysis where  the challenged error  is a            jury instruction that misdefines (or omits) an element of the            offense  charged.    Whiting,  28  F.3d   at  1309  and  n.12                                 _______            (collecting cases).  One mode would look to whether there was            sufficient record evidence to  establish the unfound element;            the other would look  only to whether the jury  made findings            functionally  equivalent to  the missing  finding.   Id.; see                                                                 ___  ___            also Ortiz v.  Dubois, 19  F.3d 708, 717-18  (1st Cir.  1994)            ____ _____     ______            (Stahl,  J., dissenting)  (explicating latter inquiry  in the                                         -23-                                          23            habeas  context), cert. denied, ___ S. Ct. ___ (U.S., Jan. 9,                              _____ ______            1995) (No. 94-5650).  As one might imagine, the determination            of harmlessness  vel non is  often different under  these two                             ___ ___            modes of analysis.                      Neither  of these  two issues  need be  resolved in            this case.  Even if we find that the error here was plain and            affected defendant's  substantial rights, we may  not respond            to it unless it "seriously affects the fairness, integrity or            public reputation  of judicial  proceedings."  Olano,  113 S.                                                           _____            Ct. 1778-79.  In this case, we think that the error cannot be            viewed  as having  seriously compromised  any of  these three            values.                        First,  there is  relatively little  risk that  the            error resulted  in the  miscarriage of justice  engendered by            the conviction  of an innocent  man.    Olano, 113 S.  Ct. at                                                    _____            1779.  Although  there is  no direct evidence  in the  record            that  defendant knew  of  the illegality  of structuring,  we            previously have  recognized that  willfulness, as a  state of            mind,  can rarely be proved by such evidence; instead, "it is            usually established by drawing reasonable inferences from the            available  facts."  Bank of New England, 821 F.2d at 854; see                                ___________________                   ___            also Ratzlaf, 114  S. Ct. at  663 n.19.   Here, any claim  of            ____ _______            lack of knowledge  of the illegality of  structuring tends to            be  belied by defendant's conduct.   The evidence shows that,            on  February 18, 1987,  defendant's then-wife,  Lynne Marder,                                         -24-                                          24            acting at  defendant's behest, used cash  to purchase $11,460            worth of cashier's  checks in amounts of $5,000,  $3,960, and            $2,500  from three  separate banks  in Derry,  New Hampshire.            While it certainly would make sense for a person cognizant of            the reporting  requirement but  unaware of the  illegality of            structuring to  make two  separate purchases at  two separate                                 ___            banks -- e.g., a purchase of $5,000 and a purchase of  $6,460            --  in order to obtain $11,460 without triggering a report to            the  IRS, the fact that defendant instructed his wife to make            three  separate purchases  at  three separate  banks suggests            _____            that  defendant had a purpose beyond evasion of the reporting            requirement:  concealment  of his structuring.   And proof of            concealment  tends to  prove  knowledge of  illegality.   See                                                                      ___            United  States v.  Sorrentino, 726  F.2d 876,  880 (1st  Cir.            ______________     __________            1984)  (citing Holland  v.  United States,  348 U.S.121,  125                           _______      _____________            (1954)).                      Moreover, our circuit has recently ruled that  jury            instructions  misdescribing or failing to describe an element            of the offense do  not per se seriously affect  the fairness,                                   ___ __            integrity  or  public  reputation  of  judicial  proceedings.            Whiting, 28 F.3d at 1309-10 (declining to find plain error in            _______            a  jury instruction  which  allowed  the  jury to  convict  a            defendant  for  receipt  or  possession  of  an  unregistered            firearm without  making the elemental  determination that the            weapon  in question was a "firearm" within the meaning of the                                         -25-                                          25            statute).  While we in no way disparage the importance of the            due process and Sixth Amendment rights that may be undermined            when  jury instructions  misdescribe or  fail to  describe an            element of the offense charged, we simply do not think that a            deprivation  of  these  rights  in all  circumstances  is  so                                            __ ___  _____________            "shocking," as  to require automatic reversal  even where the            defendant has failed to  bring the error to the  attention of            the trial judge.   See United States v. Griffin, 818 F.2d 97,                               ___ _____________    _______            100 (1st Cir.) (describing errors suitable for reversal under            plain error doctrine), cert. denied, 484 U.S. 844 (1987).                                   _____ ______                      On the  civil  side  we  recently  held,  following            circuit precedent, that:                      The  "plain  error"   rule  "'should   be                      applied sparingly and only in exceptional                      cases or under peculiar  circumstances to                      prevent a clear miscarriage of justice.''                      Wells  Real  Estate,   850  F.2d  at  809                      ___________________                      (quoting  Nimrod  v. Sylvester,  369 F.2d                                ____________________                      870, 873 (1st  Cir. 1966)); see  Elgabri,                                                  ___  _______                      964  F.2d  at  1259.   Under  the  "plain                      error"     exception,    an     erroneous                      instruction  warrants  a  new trial  only                      where the error  "seriously affected  the                      fairness, integrity  or public reputation                      of the judicial  proceedings."  See  Lash                                                      ___  ____                      v. Cutts,  943  F.2d 147,  152 (1st  Cir.                      ________                      1991); Smith, 877 F.2d at 1110.                             _____            Poulin v. Greer, 18 F.3d 979, 982 (1st Cir. 1994).            ______    _____                      Finally,  we  do  not  think  that  the  challenged            instructions,  in  light of  the  particulars  of this  case,            warrant an  exercise of  our discretion to  determine whether            the error  "seriously affect[s]  the  fairness, integrity  or                                         -26-                                          26            public reputation  of judicial  proceedings."  Olano,  113 S.                                                           _____            Ct.  at 1779.    Our recent  decision  in Whiting,  which  is                                                      _______            binding  on  us,  undergirds  this  conclusion.    While  the            evidence of the omitted element is certainly less strong here            than  it was  in  Whiting,  see  Whiting,  28  F.3d  at  1309                              _______   ___  _______            (documenting the overwhelming record evidence that the weapon            in  question was indeed a "firearm" within the meaning of the            statute),  it  is,  as  we  have  noted,  not  insubstantial.            Furthermore, the  error here was  far more excusable  than in            Whiting.  At the time the  defective instructions were given,            _______            they were  in accord with the  law of every circuit  that had            issued  an opinion  on  the meaning  of the  anti-structuring            statute's  willfulness provision.    Thus, we  simply do  not            believe that they  can reasonably be viewed  as having caused            the  type of  error  which calls  into  serious question  the            fairness,   integrity  or   public  reputation   of  judicial            proceedings.  See United States  v. Figueroa, 976 F.2d  1446,                          ___ _____________     ________            1456  (1st Cir.  1992) (ruling  that any  error in  the trial            court's failure to admit  evidence of a cooperating witness's            criminal record  for impeachment  purposes did  not seriously            affect  the  fairness,  integrity  or  public  reputation  of            judicial proceedings  in view  of the conflict  regarding the            admissibility  of such  evidence among  the circuits  and the            absence of  on-point First Circuit  precedent), cert. denied,                                                            _____ ______            113 S. Ct. 1346 (1993).       To be sure there are cases from                                         -27-                                          27            other  circuits to the contrary.   See Retos, 25 F.3d at 1232                                               ___ _____            (concluding without  analysis  that a  defective  willfulness            instruction  given prior  to  Ratzlaf in  a structuring  case                                          _______            seriously   affects   the  fairness,   integrity   or  public            reputation of  judicial proceedings);  Jones, 21 F.3d  at 173                                                   _____            (same); United States v.  Rogers, 18 F.3d 265, 268  (4th Cir.                    _____________     ______            1994) (same).   We  recognize that  these other circuits  may            well have a valid  rationale for their view, but we are bound            by our own precedent.   Furthermore, we think that it is  the            better solution to this problem.                      In   sum,   we   decline   to   vacate  defendant's            structuring conviction under the plain error doctrine.                                                               III.  THE SENTENCING                                 III.  THE SENTENCING                      No transcript of  the sentencing  hearing has  been            furnished us.   We do not  know whether it  has been lost  in            transit or  one  was not  requested.   Although a  transcript            would have been helpful,  the issues raised by defendant  can            be competently decided without one.                      In  its judgment  and conviction  order, the  court            followed the  procedure set  forth in U.S.S.G.   5G1.2, which            provides in pertinent part:                       5G1.2.   Sentencing  on Multiple  Counts                       5G1.2.   Sentencing  on Multiple  Counts                                _______________________________                      of Conviction                      of Conviction                      _____________                      (c)  If the sentence imposed  on the                           count   carrying   the  highest                           statutory  maximum is  adequate                                         -28-                                          28                           to     achieve     the    total                           punishment, then  the sentences                           on   all   counts   shall   run                           concurrently,  except  to   the                           extent  otherwise re-quired  by                           law. 7                                            ____________________            7.  See United States v.  Quinones, 26 F.2d 213, 215-17  (1st                ___ _____________     ________            Cir.  1994),  for  a   discussion  of  the  district  court's            discretion  to order that  sentences be  served consecutively            notwithstanding the dictates of U.S.S.G.  5G1.2.  This is not            an issue in this case.                                         -29-                                          29                      The commentary to  5G1.2 explains:                         This  section specifies  the procedure                      for determining the specific  sentence to                      be formally  imposed on  each count  in a                      multiple-count case.  The combined length                      of the sentences ("total  punishment") is                      determined   by  the   adjusted  combined                      offense level.   To the extent  possible,                      the total punishment is  to be imposed on                      each count.  Sentences on all counts  run                      concurrently,   except  as   required  to                      achieve   the   total  sentence,   or  as                      required by law.                         This   section  applies   to  multiple                      counts of conviction (1) contained in the                      same  indictment  or information,  or (2)                      contained  in  different  indictments  or                      informations for which  sentences are  to                      be  imposed  at the  same  time  or in  a                      consolidated proceeding.                         Usually,  at least  one of  the counts                      will have a statutory maximum adequate to                      permit imposition of the total punishment                      as the  sentence  on  that  count.    The                      sentence on each of the other counts will                      then  be set  at  a lesser  of the  total                      punishment  and the  applicable statutory                      maximum, and be  made to run concurrently                      with all or part of the longest sentence.                      If no count carries an adequate statutory                      maximum, consecutive sentences are  to be                      imposed  to  the   extent  necessary   to                      achieve the total punishment.                      The district  court sentenced the defendant  to 140            months incarceration, which was in accord with the Guidelines            Sentencing Range, on his RICO and Money Laundering counts (1,            2, 4-10), "to  be served  concurrently on each  other."   The            balance of the sentence was as follows:                                         -30-                                          30                      120 months on each  of counts 19 &  20 to                      be served  concurrently on each  other as                      well as on counts 1, 2, 4-10;                      60 months on each  of counts 3,11,12, 16-                      18,  to be  served  concurrently on  each                      other as  well as on counts  1,2,4-10 and                      counts 19 & 20.                      Defendant does  not object to the overall sentence.            He does argue that the court erred  in imposing a sentence of            120 months on  Counts 19 & 20 (conspiracy  to defraud the IRS            and structuring) and 60 months on Counts 16-18 (tax evasion).            In his reply brief  defendant acknowledges that the sentences            on  Counts 16-18  "lawfully  reached the  statutory  maximum"            because  of  the  provisions   of  U.S.S.G.   5G1.2  and  its            commentary.   He therefore  concedes that  his attack  on the            sentences on counts  16-18 is contingent  on reversal of  the            judgment  on those  counts carrying  the 140-month  sentence.            Because this contingency has not occurred, the attack  on the            sentences for counts 16-18 fails.                      As the  government points out,  however, the  court            erred in sentencing defendant to a concurrent sentence of 120            months  on  Count 19  for  conspiring to  defraud  the United            States.   The applicable  statute, 18 U.S.C.    371, provides            for  a fine of not  more than $10,000  or imprisonment of not            more  than five years, or both.  Defendant's sentence on this            count should have been a concurrent sentence of sixty months.            We must  remand to the district court for a correction of the                                         -31-                                          31            sentence on Count 19.  In all other respects, the sentence of            defendant is upheld.                      Remanded for correction in sentencing; the judgment                      Remanded for correction in sentencing; the judgment                      ___________________________________________________            of the district court is in all other respects             of the district court is in all other respects             ______________________________________________                      Affirmed.                       Affirmed.                      _________                                         -32-                                          32
