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United States v. Marder

Court: Court of Appeals for the First Circuit
Date filed: 1995-02-02
Citations: 48 F.3d 564
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                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