*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 See Fed. R. App. P. 22(b); United States v. Youngblood,

116 F.3d 1113 (5th Cir. 1997) (discussing applicability of Rule

22 to § 2255 cases).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30689

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD L. BOWES,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Louisiana

(97-CV-929)

_______________________________________________________

March 13, 1998

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Richard Bowes appeals the denial of his 28 U.S.C. § 2255

motion to set aside his convictions on three counts of illegal

structuring of financial transactions. The district court denied

the motion but issued an certificate of appealability1 on the
2 510 U.S. 135 (1994).

3 31 U.S.C. § 5313; 31 C.F.R. § 103.22 (1997).

2

issue of whether the Supreme Court’s decision in Ratzlaf v.

United States2 entitles Bowes to relief from these convictions. 

We affirm. 

BACKGROUND

Myron Palermo was approached in 1988 by undercover agents

posing as drug dealers who wished to launder large sums of money. 

Palermo turned to Bowes, a former securities broker, for

assistance. Palermo testified against Bowes as part of a plea

bargain. Palermo and Bowes devised a fairly elaborate scheme to

funnel cash through a Louisiana crawfish business, transfer the

cash to a Canadian company and then disperse it back to the

supposed drug dealers. On several occasions Palermo and Bowes

received cash in excess of $10,000, and would then purchase

several cashier’s checks from different financial institutions in

amounts of less than $10,000, which were returned to undercover

agents.

The purchase and distribution of the cashier’s checks were

the basis of the three counts of illegal structuring on which

Bowes was convicted. Federal law requires banks to file with the

government cash transaction reports (CTR’s) of transactions

exceeding $10,000.3 Federal law prohibits the structuring of

transactions for the purpose of evading this reporting
4 31 U.S.C. § 5324.

5 Id. § 5322.

6 Ratzlaf, 510 U.S. at 137, 149. After Ratzlaf, Congress

amended § 5324 to impose criminal liability for structuring

without a willfulness requirement.

7 United States v. Payne, 99 F.3d 1273, 1281 (5th Cir.

1996) (quoting United States v. Vaughn, 955 F.2d 367, 368 (5th

Cir. 1992)).

3

requirement.4 “A person willfully violating” this law is subject

to criminal penalties.5 

The jury was instructed “that the government is not required

to prove that the defendant knew that structuring or the acts of

structuring were unlawful.” After Bowes was convicted, the

Supreme Court held that a criminal violation of the

antistructuring law requires proof by the government that the

defendant knew the structuring was illegal.6 Bowes sought

collateral review of his conviction based the incorrect jury

instruction as to the mens rea requirement for criminal

liability.

DISCUSSION

We have stressed that relief under § 2255 “is reserved for

transgressions of constitutional rights and for a narrow range of

injuries that would not have been raised on direct appeal and

would, if condoned, result in a complete miscarriage of

justice.”7 Even errors of constitutional magnitude may not be

raised for the first time on collateral review without a showing
8 United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.

1992).

9 Id.; United States v. Shaid, 937 F.2d 228, 232 (5th Cir.

1991) (en banc).

10 United States v. Drobny, 955 F.2d 990, 995 (5th Cir.

1992).

11 See United States v. Garza, 42 F.3d 251, 253 (5th Cir.

1994); United States v. Oreira, 29 F.3d 185, 188 (5th Cir. 1994).

4

of “cause” for the procedural default and “actual prejudice”

resulting from the error.8 The cause and actual prejudice

standard presents a “significantly higher hurdle” for the

claimant that the plain error standard we apply on direct

appeal.9

We accept that Bowes has met the cause requirement of the

cause and prejudice test. First, we have held that the

government waives this requirement by failing to assert it as a

procedural bar to collateral relief in the district court.10 We

agree with the district court that the government did not argue

below that Bowes’s claim fails because he did not raise it

earlier. Further, Bowes cannot be faulted to failing to object

at trial to the instruction. Bowes was convicted before Ratzlaf

was decided. At the time the instruction correctly stated the

law of this circuit.11 Bowes could not be expected to predict

the outcome in Ratzlaf. We also note that Ratzlaf was not

decided until after the time for Bowes to file a notice of appeal
12 United States v. Frady, 456 U.S. 152, 165 (1982).

13 937 F.2d 228 (5th Cir. 1991) (en banc).

14 Id. at 236.

15 Id. (quoting Frady, 456 U.S. at 170. See also Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (holding that the standard

for determining whether habeas relief must be granted in the case

of a trial error is whether the error “‘had substantial and

injurious effect or influence in determining the jury’s

verdict.’”) (quoting Kotteakos v. United States, 328 U.S. 750,

776 (1946)).

5

had expired. Bowes did not bring a direct appeal of his

conviction. 

Nevertheless, a “collateral challenge may not do service for

an appeal.”12 In United States v. Shaid,

13 we analyzed whether

relief under § 2255 was warranted where, as here, the jury was

given an incorrect instruction on the mens rea requirement for

criminal liability. We held that the prisoner had not met the

cause requirement of the cause and prejudice test.14 We also

explained that “[a] mere possibility of prejudice will not

satisfy the actual prejudice prong of the cause and prejudice

test,” and that the defendant must instead “shoulder the burden

of showing, not merely that the errors at his trial created a

possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error

of constitutional dimensions.”15

We conclude that relief on collateral review was properly

denied. For several reasons we are persuaded that Bowes has
16 United States v. Flores, 63 F.3d 1342, 1374 (5th Cir.

1995).

6

shown nothing more than the possibility of prejudice from the

erroneous instruction. First, while the instruction “that the

government is not required to prove that the defendant knew that

structuring or the acts of structuring were unlawful” is

incorrect after Ratzlaf, the government did not argue in opening

and closing statements that it did not have to prove that Bowes

knew the structuring was illegal. “When reviewing challenges to

jury instructions, we take into account the court’s charge as a

whole and the surrounding context of the trial, including

arguments made to the jury.”16

Second, in addition to the structuring convictions he now

challenges, Bowes was convicted on a separate count of failing to

file a CTR himself, in violation of 31 U.S.C. §§ 5313 and 5322. 

The jury was instructed that to find Bowes guilty on this count

(Count IV), it had to find that Bowes was himself a financial

institution as defined by relevant federal law, that he “had

knowledge of the currency transaction reporting requirements,”

that “the failure to file the CTR at the time required was

knowing and willful,” and that “the failure to file was part of a

pattern of illegal activity involving transactions of more than

$100,000.” As to the structuring counts, the jury was instructed

that it must find that “that the structure or attempted
17 This instruction was given because the government sought

an enhanced penalty under 31 U.S.C. § 5322(b), which provides for

enhanced punishment where the violation occurs “as part of a

pattern of any illegal activity of more than $100,000 in a 12-

month period . . . .”

18 United States v. Rodriguez, 132 F.3d 208, 213 (5th Cir.

1997).

7

structuring of the currency transaction(s) was part of a pattern

of illegal activity involving transactions of more than $100,000

during a 12-month period.”17 Hence the jury necessarily found

that Bowes was aware that as to one of the related transactions 

his own conduct violated federal law, and that all the

transactions were part of a pattern of illegal activity. “[W]e

have implied that to prove knowledge of the law under § 5322(a),

evidence of structuring itself should be combined with evidence

of a defendant’s background or evidence of his awareness of the

general illegality of his transactions.”18

Third, the effect of the erroneous instruction was mitigated

by other instructions that the structuring must be knowing and

willful, and that “‘[w]illful’ requires proof of the defendant’s

knowledge of the reporting requirements and specific intent to

commit the crime, that is to say, his actions were voluntary,

intentional, and in violation of a known legal duty.” While the

latter instruction is not crystal clear, it suggests that the

defendant must know that his conduct is illegal. The Seventh

Circuit has held that an instruction stating that “[a]n act is

done willfully if done voluntarily and intentionally with the
19 United States v. Goulding, 26 F.3d 656, 669 (7th Cir. 

1994) (quoting Ratzlaf, 510 U.S. at 147).

20 United States v. Pipkin, 114 F.3d 528, 532 (5th Cir.

1997).

21 Oreira, 29 F.3d at 188.

8

purpose of avoiding a known legal duty” comports “exactly with

the Ratzlaf requirement that for a valid conviction a defendant

must know of his duty to report a cash transaction and ‘of his

duty not to avoid triggering such a report.’”19

Finally, we cannot say that the evidence of guilt was so

lacking that Bowes is entitled to relief on collateral review. 

Although Bowes worked in the securities industry for eleven years

as a broker, at three major brokerage houses, he denied that he

was ever involved in currency transaction reporting and denied

knowing that “you couldn’t structure transactions by making

deposits of less than ten thousand dollars.” He also points out

that his employment as a broker ended long before Congress made

structuring illegal. We have stated, in direct appeals, that

“[t]o support the inference that the defendant knew structuring

was a crime, the government must prove ‘something more’ than the

fact that a defendant structured his transaction to avoid the

filing of a CTR,”20 and that evidence of intentional structuring

“is not necessarily equivalent to an intent to do something

illegal.”21
22 Payne, 99 F.3d at 1281.

23 Shaid, 937 F.2d at 236.

9

However, the government’s case went beyond mere proof of

structuring. Palermo told Bowes that the money to be laundered

was narcotics money. He testified that Bowes was not bothered at

all that the money was derived from drug dealings. He also

testified that given the source of the money “we didn’t want to

leave a paper trail.” Bowes told Palermo he was giving Palermo

cashier’s checks because “they were not traceable.” Bowes helped

devise a fairly sophisticated scheme to launder the money through

Louisiana and Canadian companies. Palermo was aware that a

deposit of over $10,000 generated a CTR and discussed this fact

with Bowes. On one tape played for the jury Bowes stated that he

did not want to report to the “Feds.” On another recording he

stated that he was “in the business of creating shelters.” The

evidence against Bowes was such that we cannot say that denying

collateral relief would amount to “a complete miscarriage of

justice,”22 or that the proof of guilt was so lacking that the

erroneous instruction “infect[ed] his entire trial with error of

constitutional dimensions.”23

AFFIRMED.