dissenting.
This is an unfortunate situation. We are dealing with legitimate money earned by hard working people rather than criminals stashing profits from an illegal enterprise.
But I nevertheless dissent for, notwithstanding the obvious humanity of Judge Cowen’s statement of the law as applied to the facts of this case, the majority’s opinion cannot be reconciled with the precedents we should follow and is not consistent with congressional intent as reflected in the wording of 31 U.S.C. § 5324. Furthermore, I am afraid that the holding that a person cannot violate section 5324 without knowing that under 31 U.S.C. § 5313(a) banks are required to file a currency transaction report (CTR) for every transaction over $10,000 will be celebrated by drug dealers from Medellin to Morristown, Cali to Camden, Panama City to Pittsburgh, and Palermo to Philadelphia. I only mention domestic locations within this circuit for the result reached here cannot be reconciled with the opinions of the other courts of appeal throughout the country and thus I do not expect the opinion in this case to be followed in other circuits. But, we now can anticipate that in this circuit drug dealers and other criminals, the principal targets of the reporting and structuring provisions, will create phony triable issues of fact in reliance on the majority’s opinion in attempts to frustrate the enforcement of the forfeiture laws.
There is, of course, no doubt that the appellant knew the requirements of the law, though I concede that to say he had that knowledge is not the same thing as saying that he knew that it was the law which imposed them. The appellant asked his attorney for advice about how to invest the cash he had received. The affidavit of the attorney which appellant submitted in the district court explains how the attorney advised him that he could structure to avoid reporting:
He [appellant] said he had a lot of cash he wanted to put into the bank and asked if there was any problem with having a lot of cash. I told him that there was nothing wrong with having cash, that he could make one large deposit or several smaller ones, whichever he wanted. I told him that if he made a cash deposit of more than Ten Thousand Dollars he would have to fill out a report at the bank; if it was less than that amount it was not necessary. .
App. at 148-49.
The appellant then made 26 cash deposits totaling almost $200,000, but each for less than $10,000, in seven different financial institutions in a short period. This was a classic undertaking in structuring.
Does this make appellant’s share of the money subject to forfeiture? Of course it does for section 5324 provides that “[n]o person shall” structure a transaction “for the purpose of evading the reporting requirements of section 5313(a) with respect to such transaction.” Here, there is no question but that section 5313(a) required reporting of the deposit of the money and that the appellant structured the transac*243tion with the intent to avoid that requirement. Those circumstances in themselves require a forfeiture for section 5324 does not say that a depositor had to know the source of the requirements. The section simply says that the depositor had to have the purpose of evading the reporting requirements. If Congress had conditioned the forfeiture on a showing that the depositor knew that the reporting requirements were derived from law it would have said so.
My conclusion that the depositor’s belief as to the source of the reporting requirements is- not germane is supported by the precise holding in United States v. Brown, 954 F.2d 1563 (11th Cir.), cert. denied, — U.S. -, 113 S.Ct. 284, 121 L.Ed.2d 210 (1992). The majority seeks to distinguish Brown on a theory that in that criminal case the appellants knew that the filing of a CTR was required by law. That explanation, however, does not work. In Brown the appellants contended “that the district court erred in charging the jury that knowledge of the unlawful nature of the act is not an essential element of the crime under 31 U.S.C. § 5324(3), the statute prohibiting structuring of currency transactions.” 954 F.2d at 1567. Thus, the court said the issue was “[wjhether the trial court erred in charging the jury that knowledge of the unlawful nature of the act is not an essential element of the crime under 31 U.S.C. § 5324(3), the anti-structuring statute.” 954 F.2d at 1567.
The court then indicated that:
The specific question presented by this appeal is whether the jury must find that the defendant knew that money structuring was illegal for the jury to find that the defendant ‘willfully’ violated the prohibition on money structuring contained in 31 U.S.C. § 5324(3). We hold that .the prosecution need not prove the defendant was aware of the illegality of money structuring in order to convict the defendant of that offense under 31 U.S.C. § 5324(3). The government need only prove that the defendant was aware of the bank reporting requirement for currency transactions in excess of $10,000 and sought to evade those requirements through money structuring.
954 F.2d at 1568.
With all due respect to the majority, the holding in Brown demonstrates that we should uphold a forfeiture in' this case, even viewing the facts as appellant asserts them to be. While, on this appeal from an order for summary judgment, we must assume that the appellant did not know the source “of the bank reporting requirement for currency transactions in excess of $10,-000,” that does not matter because he knew that there were such requirements which he “sought to evade.” While I accept the majority’s position that “[a] person cannot act for the purpose of evading the legal reporting requirements if he does not know that they exist,” typescript at 9, that statement misses the point because the appellant knew of the requirements, though he may not have known they were derived from law.
Brown is not aberrational. In fact, its holding is followed everywhere. Thus, in United States v. Hoyland, 914 F.2d 1125 (9th Cir.1990), another criminal case, the parties stipulated that a defendant, Hoy-land, who had been lawfully structuring money transactions before the anti-structuring law was passed, “continued his transactions as before.” They further agreed that “[n]o one told him it was now illegal, and Mr. Hoyland never learned of the passage of the new law.” Moreover, “[t]he Government agree[d] that [Hoyland] had no notice and/or knowledge of the new law.” 914 F.2d at 1127. Notwithstanding Hoyland’s position, which was at least as innocent as the appellant’s here with respect to the structuring itself, the court of appeals < affirmed his conviction for structuring. The court held that the fact that Hoyland did not intend to break the law “as he did not know of this law,” id. at 1128, did not matter because Congress “changed the law to make it a crime so to structure with the intent to prevent reporting.” Id. at 1129. Accordingly, the court held that “[t]o act willfully under the statute is to act with this intent.”. Id.
*244Very recently the court in United States v. Rogers, 962 F.2d 342 (4th Cir.1992), in upholding a structuring conviction, rendered an opinion consistent with Brown and Hoyland. In Rogers the court explained the issue raised and its disposition as follows:
Rogers contends that in order to willfully violate § 5324(3), a defendant must have knowledge that structuring transactions to evade the reporting requirement is illegal. He therefore argues that the district court erred in instructing the jury that proof of such knowledge was not required to convict. This circuit has previously held in a case involving civil forfeiture that ‘the only scienter required for a violation of § 5324(3) is that the violating party “had knowledge of the reporting requirements and acted to avoid them.” ’ We have not previously addressed the question of whether proof of a willful violation of § 5324(3), as set forth in § 5322(a), requires the additional showing that a party knew that the structuring of the transactions was illegal. We now hold that it does not.
Interpreting the term ‘willful’ to require proof that the defendant knew that his conduct ran afoul of the law would put us at odds with some basic assumptions. ‘Where the law imposes criminal liability for certain conduct, a requirement that the conduct be “willful” generally “means no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law.” ’ This interpretation of ‘willful’ runs parallel to the rule that ‘ignorance of the law is no excuse.’ That rule is 'deeply rooted in the American legal system,’ and exceptions to it must not be casually created.
962 F.2d at 344 (citations omitted).
While there are other cases consistent with Brown, Hoyland, and Rogers, I would serve no useful purpose by quoting them at length. See, e.g., United States v. Dashney, 937 F.2d 532, 537 (10th Cir.), cert. denied, — U.S. -, 112 S.Ct. 402, 116 L.Ed.2d 351 (1991) (court rejects contention that for a structuring conviction “it must be established that the defendant had knowledge of the prohibition of structuring transactions in the criminal statutes”). I think that it is sufficient to point out that inasmuch as the appellant unquestionably knew that there was a reporting requirement and intentionally broke the deposits into segments of less than $10,000 to evade the requirement, the summary judgment was properly entered. I recognize that in some forfeiture cases the claimant was aware, as the majority points out, that the reporting was required by law. But I am aware of no court of appeals which, until today, has held that a forfeiture can be avoided by a claimant who has structured his transaction, simply because the claimant thought that the source of the reporting requirement sought to be evaded was derived from bank policy rather than law. At least the majority cites no such ease.
I also recognize that the majority cites legislative history in support of its position. But the examples in that history merely demonstrate other situations in which there can be a forfeiture. The majority cites no example in the history which suggests that in the circumstances of this case there cannot be a forfeiture. As the Rogers court indicated: “The legislative history is not-particularly helpful, but what there is affords no basis to conclude that knowledge of illegality is an element of the offense.” 962 F.2d at 344.
I realize that it reasonably could be concluded from the appellant’s attorney’s affidavit that he told the appellant that what he was doing was lawful. Accordingly, some people, including me, would think the district court reached a harsh result. But in a sense the affidavit backfires because it supplies direct proof from the appellant that he knew that there was a structuring requirement which he was evading. In any event, it does not matter that the appellant relied on his attorney’s advice for as the Hoyland court explained:
Hoyland contends that he did not have an evil state of mind because he was reassured by bank employees who told him that the structuring was legal. Such reassurances, of course, constituted no estoppel because the bank employees were not agents or licensees of the government. Even if the effect of these *245reassurances was to make Hoyland confident that he was not committing a crime, they did not affect or alter his deliberate intention to frustrate the reporting by the banks. Under the statute, that intention made him guilty.
914 F.2d at 1130 (citation omitted).
Accordingly, if the correct result is harsh it is attributable to the law which in unusual cases, such as that here, will lead to regrettable consequences.
I am not, of course, reading intent out of section 5324(a) and should not be understood as suggesting that a person dividing a cash accumulation of over $10,000 automatically structures. Thus, a person might divide a large sum into smaller deposits for perfectly legitimate business reasons unrelated to the reporting requirements of section 5313(a). For example, a person might want to make separate deposits in different banks because of business needs for deposits in different areas.
In this case, however, the transaction admittedly was structured to evade reporting requirements. While the appellant may not have known of the source of the requirements and may have thought that his actions were perfectly legal, he has no defense to this civil action. Thus, I dissent as the district court correctly granted the government summary judgment. I would affirm.