U.S. v. Dashney

• Decision Date: 01 July 1997
• Docket Number: No. 95-1408,95-1408
• Citation: 117 F.3d 1197
• Parties: 97 CJ C.A.R. 1130 UNITED STATES of America, Plaintiff--Appellee, v. David A. DASHNEY, Defendant--Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1197

117 F.3d 1197

97 CJ C.A.R. 1130

UNITED STATES of America, Plaintiff--Appellee, v. David A. DASHNEY, Defendant--Appellant.

No. 95-1408.

United States Court of Appeals, Tenth Circuit.

July 1, 1997.

Richard L. Gabriel, Holme, Roberts & Owen, Denver, Colorado, for Defendant-Appellant.

John M. Hutchins, Assistant U.S. Attorney, Mountain States Drug Task Force (Henry L. Solano, U.S. Attorney for the District of Colorado with him on the brief, Denver, Colorado), for Plaintiff-Appellee.

Before TACHA, BALDOCK, and EBEL, Circuit Judges.

TACHA, Circuit Judge.

David Dashney appeals an order of the district court denying his 28 U.S.C. § 2255 motion to vacate his conviction and sentence for structuring cash transactions in order to evade currency transaction reporting requirements. Dashney argues that: (1) the jury instructions inadequately apprised the jury that knowledge of illegality is an element of the offense of structuring, (2) the record contains insufficient evidence to support a finding that Dashney knew that structuring was illegal, (3) the district court improperly denied Dashney an opportunity to present a defense that he had no knowledge that structuring was illegal, and (4) the indictment was jurisdictionally defective because it did not charge Dashney with knowledge that structuring was illegal. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

BACKGROUND

In 1990, a grand jury indicted Dashney on two counts of structuring cash transactions in order to evade currency reporting requirements in violation of 31 U.S.C. §§ 5324(3), 5322(a), and 18 U.S.C. § 2. ¹ Dashney immediately moved to dismiss the indictment because it failed to charge him with knowledge that structuring was illegal. The district court denied the motion, concluding that knowledge of illegality is not an element of a structuring offense. Dashney again raised the issue during a jury instruction conference. Over Dashney's objection, the district In order for the defendant to be found guilty of structuring or attempting to structure a financial transaction in order to evade the filing of a currency transaction report, the government must prove all of the following four elements beyond a reasonable doubt:

court outlined the elements of a structuring offense in Instruction No. 12:

First, that the defendant had knowledge that a financial institution was required to report currency transactions in excess of $10,000;

Second, that the defendant knowingly and willfully structured or attempted to structure a currency transaction;

Third, that the purpose of the structured transaction or attempted structured transaction was to evade the bank's reporting requirements;

Fourth, that the structured transaction involved one or more domestic financial institutions....

(Emphasis added). The trial court then defined "willfully" in Instruction No. 15:

An act is done "willfully" if done voluntarily and intentionally, and with specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law.

To evade or attempt to evade the reporting requirements of 31 U.S.C. 5313(a), means the defendant acted voluntarily and intentionally and with the specific intent to knowingly keep financial institutions from having sufficient information to prepare and file with the United States Treasury Department the currency transaction report.

In other words, the evasion or attempted evasion must be made with the bad purpose of seeking to prevent financial institutions from making a written report of the currency transaction.

The word "knowingly" means that the act or omission was done voluntarily and intentionally, and not because of mistake or accident.

(Emphasis added). Similarly, Instruction No. 16 stated:

The crime charged in this case ... requires proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent the Government must prove that the defendant knowingly did an act which the law forbids, as knowingly is defined earlier, purposely intending to violate the law.

(Emphasis added). The jury convicted Dashney on both counts.

On direct appeal, we affirmed the conviction on Count 1 but reversed and vacated the conviction on Count 2, holding that the structuring charged constituted one violation. United States v. Dashney, 937 F.2d 532, 541-42 (10th Cir.), cert. denied, 502 U.S. 951, 112 S.Ct. 402, 116 L.Ed.2d 351 (1991). We also held that to establish that a defendant "willfully violated" the antistructuring law, the government need not prove that the defendant acted with knowledge that his conduct was unlawful. Id. at 540.

Three years later, in Ratzlaf v. United States, 510 U.S. 135, 136-37, 114 S.Ct. 655, 656-57, 126 L.Ed.2d 615 (1994), the Supreme Court held that knowledge of illegality is required to sustain a conviction for structuring. Relying on Ratzlaf, Dashney filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255. The district court concluded that Ratzlaf should not be applied retroactively and denied the motion. We reversed and remanded for consideration on the merits. United States v. Dashney, 52 F.3d 298, 299 (10th Cir.1995).

On September 12, 1995, the district court denied Dashney's § 2255 motion on the merits. The court determined that the jury instructions used at Dashney's trial complied with Ratzlaf because they required the jury to find that Dashney had a specific intent to act with knowledge that his conduct was unlawful. In addition, the district court determined that the evidence was sufficient to support a finding of knowledge of illegality. Dashney appeals the district court's order denying his motion to vacate his conviction.

DISCUSSION

I. JURY INSTRUCTIONS

Dashney argues that the trial court's instructions were insufficient because they failed to instruct the jury that knowledge of illegality is an element of a structuring offense. When reviewing a challenge to jury instructions, we consider the instructions as a whole to determine whether the instructions adequately state the law and provide the jury with an ample understanding of the issues and controlling principles of law. United States v. Edwards, 69 F.3d 419, 433 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2497, 135 L.Ed.2d 189 (1996).

In Ratzlaf, the Supreme Court held that structuring is not committed "willfully" within the meaning of 31 U.S.C. § 5322(a) unless the defendant knows that his conduct is unlawful. Ratzlaf, 510 U.S. at 136-37, 114 S.Ct. at 656-57. The Court thus concluded that the trial court erred by expressly instructing the jury that the government does not need to prove that a defendant knew that his structuring was unlawful. Id. at 137-38, 114 S.Ct. at 657-58.

In holding that a structuring offense requires knowledge of illegality, the Court reasoned that § 5322(a)'s omnibus "willfulness" requirement should be construed the same way each time it is called into play by provisions in the same subchapter. Id. at 141, 114 S.Ct. at 659. The Court noted that the courts of appeals, in construing § 5322(a)'s "willfulness" requirement, have consistently instructed juries to find "willfulness" when the defendant acted with " 'specific intent to commit the crime,' i.e., a 'purpose to disobey the law' " or when the defendant intended to violate a "known legal duty." Id. at 140-44, 114 S.Ct. at 659-60 (citing cases involving "willful" violations of 31 U.S.C. §§ 5313, 5314, 5316).

In this case, the jury instructions contain language similar to the language cited with approval by the Court in Ratzlaf. Instruction No. 12 informed the jury that a structuring conviction required them to find that Dashney acted "willfully" and Instruction No. 15 defined a "willful" act as one done with "specific intent to do something the law forbids; that is to say, with bad purpose to disobey or disregard the law." Instruction No. 16 reiterated the requirement that the government "prove that the defendant knowingly did an act which the law forbids, as knowingly is defined earlier, purposely intending to violate the law." Viewing the instructions as a whole, we hold that the jury instructions complied with Ratzlaf.

Unlike the deficient jury instruction in Ratzlaf, the jury instructions in this case did not explicitly inform the jury that it did not need to find that the defendant knew that his conduct was unlawful. See Ratzlaf, 510 U.S. at 137-38, 114 S.Ct. at 657-58; see also United States v. Garza, 42 F.3d 251, 253 (5th Cir.1994), cert. denied, 515 U.S. 1110, 115 S.Ct. 2263, 132 L.Ed.2d 268 (1995); United States v. Jackson, 33 F.3d 866, 869 (7th Cir.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995); United States v. Bencs, 28 F.3d 555, 564 (6th Cir.1994), cert. denied, 513 U.S. 1117, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995); United States v. Rogers, 18 F.3d 265, 267 (4th Cir.1994). Nor did the instructions fail to define the willfulness element in terms of specific intent to act with the purpose to disobey or disregard the law. See United States v. Retos, 25 F.3d 1220, 1229-30 (3d Cir.1994) (finding error where the district court instructed the jury that the defendant must act willfully but failed to define the term "willfulness"). Although Instruction No. 12 did not explicitly require the jury to find that knowledge of illegality was an essential element of a structuring offense, the jury instructions as a whole required the jury to make such a finding. The majority of the courts of appeals that have addressed similar jury instructions have reached the same conclusion. ²

We therefore hold that the instructions as a whole complied with Ratzlaf 's requirement that the jury be instructed that knowledge of illegality is an element of a structuring offense.

II. SUFFICIENCY OF THE EVIDENCE

Dashney next argues that the record contains...