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