United States v. St. Michael's Credit Union and Janice Sacharczyk

This case arises out of the alleged illegal activities of St. Michael’s Credit Union and one of its employees, Janice Sacharczyk. St. Michael’s was convicted of failing to file Currency Transaction Reports with the Internal Revenue Service on thirty-nine occasions during the period from September, 1983 to September, 1984 in violation of the Currency Transactions Reporting Act, 31 U.S.C. §§ 5313 & 5322(b). Sacharczyk was convicted of knowingly and willfully aiding and abetting St. Michael’s failure to file. These omissions formed the basis for additional convictions of both defendants for concealing, by trick, scheme and device, material facts from the IRS under 18 U.S. C. § 1001. Defendants appeal their convictions citing numerous errors.

I. STATUTORY FRAMEWORK

As this case involves the interpretation of an intricate statute, a brief overview of the legislation is necessary to understand the issues presented.

The Currency Transactions Reporting Act, also known as the Bank Secrecy Act, 31 U.S.C. § 5313 provides:

When a domestic financial institution is involved in a transaction for the payment, receipt, or transfer of United States coins or currency (or other monetary instruments the Secretary of the Treasury prescribes), in an amount, denomination, or amount and denomination, or under circumstances the Secretary prescribes by regulation, the institution and any other participant in the transaction the Secretary may prescribe shall file a report on the transaction at the time and in the way the Secretary prescribes.

The Act’s implementing regulations flesh out this statutory language. The regulations in effect during the indictment period mandated that: “Each financial institution *582 ... shall file a report of each deposit, withdrawal, exchange of currency or other payment or transfer, by, through, or to such financial institution, which involves a transaction in currency of more than $10,-000...31 C.F.R. § 103.22(a). A “transaction in currency” was defined as “[a] transaction involving the physical transfer of currency from one person to another.” 31 C.F.R. 103.21. Reports of these transactions must be made on Internal Revenue Service Form 4789, known commonly as a Currency Transaction Report (CTR). A failure to file a CTR may be prosecuted as a felony when the omission occurs “while [the defendant is] violating another law of the United States, or as part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period....” 31 U.S.C. § 5322(b).

By forcing financial institutions to keep such records, Congress hoped to maximize the information available to federal regulatory and criminal investigators. The overall goal of the statute was to interdict the laundering of illegally obtained and untaxed monies in legitimate financial institutions. See generally, California Bankers Ass’n v. Schultz, 416 U.S. 21, 26-30, 94 S.Ct. 1494, 1500-02, 39 L.Ed.2d 812 (1974) (noting purposes of Act).

II. FACTS

We review the facts in the light most favorable to the government. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Campbell, 874 F.2d 838, 839 (1st Cir.1989).

St. Michael’s was a small financial institution that catered to the people who lived in and around Lynn, Massachusetts. A great deal of its operation was devoted to serving the needs of the ethnic Polish community in Lynn. The organization and management of St. Michael’s was, by all accounts, unprofessional and deficient. Due in part to this mismanagement, it was taken over by Massachusetts Share Insurance Corporation in September, 1984.

Janice Sacharczyk was employed at the credit union and served as its bookkeeper, computer operator, clerk, and treasurer. On December 13, 1983, she resigned her position as treasurer but continued to work at the credit union until September 6, 1984, despite bearing a child in the spring of 1984. Her main responsibility at the credit union was “to prove” its books to ensure that all of the money that went in or out was accounted for in the records. She also ran the computers and accessed information contained therein for others. Occasionally, she approved checks and obtained more money for tellers who had used up their initial allotment of cash.

For eight weeks between September and November 1983, St. Michael’s was audited by John DiPerna, the Banking Examiner for the Credit Union Division of the Banking Commission of Massachusetts. DiPer-na testified at trial that the audit was to “evaluate the assets and ascertain that all the liabilities in the institution[ ] are shown on the balance sheet” and to ensure the institution’s compliance with state and federal laws and regulations.

During the audit, a member of DiPerna’s staff discovered that on two occasions, St. Michael’s had failed to file CTRs with the IRS. Although the law requiring the filing of CTRs had been passed in the 1970’s, it was only in 1982 or 1983 that DiPerna was instructed by the federal government to enforce the law’s provisions against state institutions. DiPerna met with Sacharczyk to discuss the CTRs. He told her that CTRs must be filled out and filed with the IRS whenever there are withdrawals or deposits of currency exceeding $10,000. DiPerna testified that “it was evident that they [defendants] were unaware of the law.” As was his custom at the time, DiPerna told Sacharczyk that if St. Michael’s filed the CTRs for the two transactions, he would not report the omissions as violations. He also gave Sacharczyk an outdated and incomplete copy of the regulations that govern CTRs. Omitted from the regulations were the sections that dealt with civil and criminal penalties for the failure to file. DiPerna left the credit un *583 ion telling “them to start keeping track of currency transactions over $10,000.”

In February, 1984, DiPerna returned to St. Michael’s for a “bring-up exam.” At that time, Sacharczyk showed him xerox copies (showing only the fronts) of the CTRs he had told her to file with the IRS (the French and Perry CTRs). She stated that they had been sent to the IRS and, therefore, DiPerna did not mention them in his audit report. These CTR forms detailed both the reasons for requiring CTRs and the civil and criminal penalties for failing to file.

Contrary to the averment of Sacharczyk that the CTRs were sent to the IRS, Yvonne Covington, the IRS official in charge of keeping records on CTR filings, testified that no CTRs were filed by St. Michael’s between September 1983 and October 1984. Covington acknowledged that records for that period had only recently been moved from Ogden, Utah to Detroit, Michigan, but asserted that “to our knowledge all documents were received....”

In September, 1984, agents of the IRS’ Financial Task Force began an investigation of St. Michael’s. Special Agent DeAn-gelis questioned Sacharczyk concerning her knowledge of CTRs. She stated that DiPerna had discussed them with her and that she had filed CTRs for the two currency transactions that DiPerna had brought to her attention. She then searched the basement and produced xeroxed copies of the CTRs she claimed to have sent to the IRS. Sacharczyk told the agents that St. Michael’s had no official policy regarding CTRs. When the agents asked her whether there was a CTR compliance officer at St. Michael’s, she responded “no.” When asked whose responsibility it would be to file CTRs, she stated that either the Manager, Barbara Szczawinski, or herself would be responsible.

The Task Force investigation of St. Michael’s uncovered a number of $10,000 transactions for which no CTRs had been filed. These formed the basis for the indictment in this case. The indictment charged Sacharczyk and Barbara Szczawin-ski with knowingly and willfully aiding and abetting St. Michael’s failure to file CTRs in violation of 31 U.S.C. §§ 5313, 5322(b) & 18 U.S.C. § 2(b), and of aiding and abetting St. Michael’s concealment by trick, scheme or device of material facts from the IRS in violation of 18 U.S.C. §§ 1001 & 2(b). A conspiracy count was also part of the indictment. All three defendants were tried together. The jury found Szczawinski not guilty on all charges. Sacharczyk and St. Michael’s were convicted on thirty-nine counts of felonious failure to file CTRS and on one count of concealing material facts from the IRS. Sacharczyk was acquitted on the conspiracy count. She received a one-year suspended sentence with probation and a $1,000 fine. St. Michael’s was fined $10,000. Defendants moved for acquittal or in the alternative for a new trial under Fed.R.Crim.P. 29. The motion was denied. Sacharczyk and St. Michael’s duly filed their notice of appeal.

The district court found that St. Michael’s could be bound only by the actions, conduct and statements of Sacharczyk (and Szczawinski). The liability of the credit union is thus measured by the liability of Sacharczyk. We refer to St. Michael’s and Sacharczyk as defendants rather than as principal and aider and abettor since their liabilities are coterminous. See 18 U.S.C. § 2(b) (aider and abettor punished as principal).

Defendants assert the following grounds for reversal of their convictions: (1) the evidence was insufficient to prove beyond a reasonable doubt that Sacharczyk knowingly and willfully failed to report large currency transactions to the IRS; (2) the evidence was insufficient to warrant giving the jury an instruction on willful blindness; (3) the evidence was insufficient to prove “a pattern” of illegal activity; (4) the evidence was insufficient to prove concealment by use of a trick, scheme or device in a matter before the IRS; (5) some of the transactions that were bases for the defendants’ convictions were not reportable transactions; (6) the court erred by refusing to give a missing witness instruction; (7) the court erred by admitting evidence concerning extrinsic gambling activi *584 ties of Sacharczyk’s father; and (8) the government’s closing argument unduly-prejudiced defendants’ right to a fair trial.

III. THE CURRENCY TRANSACTIONS REPORTING ACT CONVICTIONS

Our analysis is governed by the following:

[T]he standard of review for a judgment of acquittal notwithstanding the verdict is identical to the test employed to measure the sufficiency of evidence supporting a guilty verdict. The test is whether, considering the evidence as a whole, taken in the light most favorable to the government, together with all legitimate inferences that can be drawn from such evidence, a rational trier of fact could have found guilt beyond a reasonable doubt. United States v. Hensel, 699 F.2d 18, 33 (1st Cir.), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1317 (1983); United States v. Patterson, 644 F.2d 890, 893 (1st Cir.1981) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). We must resolve any issue of credibility in favor of the jury’s verdict, United States v. Winter, 663 F.2d 1120, 1127 (1st Cir.1981), and we must defer to the jury’s verdict if the evidence can support varying interpretations, United States v. Rivera-Sola, 713 F.2d 866, 869 (1st Cir.1983). In other words, the prosecutor need only produce that quantum of evidence by which a reasonable trier of fact could find guilt beyond a reasonable doubt; there is no requirement to produce evidence that would compel a finding of guilt beyond a reasonable doubt.

United States v. McNatt, 813 F.2d 499, 502 (1st Cir.1987).

In order to sustain the defendants’ felony convictions under 31 U.S.C. § 5322(b) the government must prove the following beyond a reasonable doubt:

First, that a financial institution was involved in a currency transaction exceeding $10,000;

Second, that in connection with such a currency transaction, no currency transaction report was filed at the time required;

Third, that the failure to file the Currency Transaction Report at the time required was willful; and

Fourth, that the failure to file was part of a pattern of illegal activity involving transactions of more than $100,000 during a twelve month period.

Brief for the government at 24; see 31 U.S.C. §§ 5313 & 5322. Of these elements, the defendants assert that the evidence is insufficient to establish that the failure to file: (1) was “willful,” i.e., done with either actual knowledge or willful blindness and/or (2) was part of a “pattern of illegal activity.” We deal with each of these contentions separately.

A. Knowing and Willful Violation of 31 U.S.C. § 5322(b)

Our analysis focuses upon the propriety of the trial judge’s willful blindness instruction and the sufficiency of the evidence. Sacharczyk argues that the lower court should not have instructed the jury on willful blindness because the government failed to produce any evidence to support such an instruction. She maintains that the government has not presented “evidence of a conscious course of deliberate ignorance, i.e., of purposeful blinding while knowing that a crime was likely in progress.... ” United States v. Masse, 816 F.2d 805, 812 (1st Cir.1987) (emphasis in original). Lastly, she contends that even if the instruction was warranted, the evidence was insufficient to establish willful blindness beyond a reasonable doubt. The failure to file CTRs, she asserts, was due to negligence and oversight rather than to criminal intent. We disagree.

A “willful blindness instruction is appropriate when: (1) defendant claims a lack of knowledge, (2) the facts suggest a conscious course of deliberate ignorance, and (3) the instruction, taken as a whole, cannot be misunderstood by a juror as mandating such an inference.” United States v. Hogan, 861 F.2d 312, 316-17 (1st Cir.1988) (emphasis added); see United States v. Littlefield, 840 F.2d 143, 147 (1st Cir.), cert. *585 denied, — U.S. -, 109 S.Ct. 155, 102 L.Ed.2d 126 (1988); United States v. Kaplan, 832 F.2d 676, 682 (1st Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988); United States v. Masse, 816 F.2d at 812; United States v. Martin, 815 F.2d 818, 823 (1st Cir.), cert. denied, 484 U.S. 825, 108 S.Ct. 89, 98 L.Ed.2d 51 (1987); United States v. Krowen, 809 F.2d 144, 148 (1st Cir.1987); United States v. Rothrock, 806 F.2d 318, 322 (1st Cir.1986); United States v. Picciandra, 788 F.2d 39, 46 (1st Cir.), cert. denied, 479 U.S. 978, 107 S.Ct. 481, 93 L.Ed.2d 425 (1986).

In the case at bar, there is no issue concerning requirements one and three. Sacharczyk’s main line of defense was that she had no knowledge of the failures to file CTRs or of the consequences of such omissions. And the trial judge took care to instruct the jury that a willful blindness instruction does not mandate an inference of willful blinding. 1

We thus limit our discussion to the second willful blindness prerequisite: did the government present evidence that suggested a course of deliberate blindness by Sa-charczyk? We believe it did. The following evidentiary facts might support a finding that Sacharczyk deliberately chose a course of willful blindness to the CTR violations. First, in the fall of 1983, DiPerna spoke with her concerning the filing of CTRs. While the regulations he provided her omitted any mention of civil or criminal penalties, their discussion put her on notice that CTRs needed to be filed for certain currency transactions that exceeded $10,-000 and that the credit union had participated in at least two such transactions in the preceding year. Second, in February, 1984, DiPerna again spoke with Sacharczyk concerning the necessity of filing CTRs. At that time she told DiPerna that she had filed the French and Perry CTRs with the IRS. She showed him xeroxed copies of these filled-out forms. Third, on the backs of these CTRs were directions for answering the questions asked on the fronts of the forms. Also detailed were the civil and criminal penalties that could result from a failure to file. Fourth, when agents of the IRS questioned Sacharczyk concerning her knowledge of CTRs, she explained that DiPerna had been the first to inform her of their existence and that on his request she had filled out and filed two CTRs. She produced copies of these for the agents along with the CTR regulations that DiPer-na had given her. Finally, the government asserted that in her role as treasurer/bookkeeper/clerk, Sacharczyk would have had the opportunity to learn that currency transactions exceeding $10,000 were taking place at the credit union.

“The purpose of the willful blindness theory is to impose criminal liability on people who, recognizing the likelihood of wrongdoing, nonetheless consciously refuse to take basic investigatory steps.” Rothrock, 806 F.2d at 323; see United States v. Zimmerman, 832 F.2d 454, 458 (8th Cir.1987) (willful blindness instruction “allows the jury to impute knowledge to [a defendant] of what should be obvious to him, if it found, beyond a reasonable doubt, a conscious purpose to avoid enlightenment.”). While individually none of the facts here point to a deliberate course of willful ignorance, tak *586 en together, we believe, they present a sufficient basis for the willful blindness instruction.

Though the evidence was not overwhelming, the jury had a reasonable basis for inferring that Sacharczyk had read the backs of the CTRs in order to fill them out. As noted, the backs of these forms also contained warnings concerning the penalties for not filing CTRs. Given these facts, the jury could have inferred that Sacharc-zyk knew that the failure to file CTRs was against the law. Based on DiPerna’s discovery of the two unreported transactions, Sacharczyk was put on notice that the credit union, in fact, handled reportable transactions. These inferences, and Sacharc-zyk’s position at the credit union, support a finding that if she did not know about the specific transactions charged in the indictment, it was only because she consciously chose to be ignorant of them. We believe that the evidence and inferences permissibly drawn therefrom were sufficient to support both the willful blindness instruction and the jury’s ultimate determination of willful failure to report beyond a reasonable doubt.

B. A “Pattern of Illegal Activity”

The Currency Transactions Reporting Act defines both felony and misdemeanor offenses for knowing and willful failures to file CTRs. The felony provisions are implicated when:

A person willfully violates] this subchap-ter or a regulation prescribed under this subchapter (except section 5315 of this title or a regulation prescribed under section 5315), while violating another law of the United States or as part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period....

31 U.S.C. § 5322(b). In the case at bar, the government charged the defendants with felonious violations, alleging that the acts named in the indictment constituted a “pattern of illegal activity involving transactions of more than $100,000 in a 12-month period.” The trial judge instructed the jury that it could find there was a pattern of illegal activity if it determined “beyond a reasonable doubt that there were repeated and related violations” of the Act. The defendants argue that the government has failed to produce any evidence that could support a finding that the transactions named in the indictment formed a “pattern of illegal activity.” We cannot agree.

In United States v. Bank of New England, N.A., 821 F.2d 844 (1st Cir.), cert. denied, 484 U.S. 943, 108 S.Ct. 328, 98 L.Ed.2d 356 (1987), we dealt with the issue of what constitutes a “pattern of illegal activity” under 31 U.S.C. § 5322(b). We affirmed the felony convictions of the Bank for failing to file CTRs for thirty-one currency transactions, each involving the same individual customer and the same form of currency transfer. In interpreting the meaning of the phrase “pattern of illegal activity,” we examined the limited case law on point. See United States v. Valdes-Guerra, 758 F.2d 1411, 1414 (11th Cir.1985); United States v. Dickinson, 706 F.2d 88, 92 (2d Cir.1983); United States v. Beusch, 596 F.2d 871, 878 (9th Cir.1979) (interpreting same language in 31 U.S.C. § 5322(b)’s predecessor statute). We concluded that to form a pattern under the Act, the transactions must be “repeated and related.” Bank of New England, 821 F.2d at 853 (emphasis in original). Although the trial judge in that case had charged the jury that a pattern could be established by proving repeated violations, she did not instruct that the transactions also must be related. We found that did not constitute plain error because:

Under the evidence adduced, it was clear that the repeated failures by the Bank to report were directly related to the withdrawals by McDonough [the individual customer]. These failures were not isolated events; they entailed repeated failures to file CTRs on similar transactions by the same customer. The similarity of the transactions, coupled with the frequency and regularity of their repetition, establish a related scheme.

Id.

Sacharczyk and St. Michael’s argue mightily that here, unlike in Bank of New *587 England, there is absolutely no evidence that would link the currency transfers named in the indictment to one another. They stress that the indictment charged fifty different violations of the Act involving twenty-five different customers. They point out that the transactions named in the indictment consisted of differing forms of currency transfers: cash withdrawals, cash deposits, purchases of Treasurer’s checks, loan proceeds, and the cashing of third-party checks. Absent evidence of some relation among these transactions, Sacharczyk and St. Michael’s contend that they are simply repeated, “isolated events,” which are prosecutable only under the misdemeanor provision of the Act. See Bank of New England, 821 F.2d at 853; Dickinson, 706 F.2d at 92 (“The requirement that the violations be part of a pattern merely excludes cases where the violations are isolated events and not part of a common or systematic scheme.”). Although this is a plausible reading of the “repeated and related” standard set forth in Bank of New England, we believe it proves too much and refuse to read that standard so narrowly.

At the outset, we reaffirm that to establish a pattern of illegal activity under the Act, the government must prove that the transactions involved were both repeated and related to one another. See Bank of New England, 821 F.2d at 853. In the normal prosecution under 31 U.S.C. § 5322(b), a financial institution is indicted for failing to file CTRs for a limited number of transactions; the institution has filed CTRs for certain transfers while failing to file them for others. To prove a pattern of illegal activity in such a case, the government must establish an underlying relationship or linkage among the unreported transactions. To do this it might prove, inter alia, a common feature among the customers involved, the forms of transfers of currency, and/or the purposes for which the funds were used. See, e.g., Bank of New England, 821 F.2d at 853.

In a case like the one at bar, however, where a financial institution has systematically failed to file any CTRs, the above approach is inapt. While a relationship must still be established, it may be proven without linking the underlying transactions. The necessary connection can be shown by proving that the financial institution chronically and consistently failed to file any CTRs. By showing a consistent failure to report, the government has proven an overall relationship among the transactions. There is a pattern of not reporting.

The language of the statute and its legislative history support this interpretation. 31 U.S.C. § 5311 declares that the purpose of the statute is “to require certain reports or records where they have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.” We agree with the Second Circuit that, in passing this legislation

Congress was largely concerned with the fact that the relative freedom accorded domestic and foreign currency transactions by American law in combination with the secrecy accorded currency transactions by certain foreign nations facilitated major criminal schemes, such as the laundering of money earned in criminal enterprises, the evasion of income taxes by gambling establishments, and the perpetuation of multinational securities frauds. In selecting among remedies, Congress rejected substantive restrictions on monetary or currency transactions but instead provided for a system of compulsory recordkeeping and reporting designed to diminish the advantages accorded such illegal activities by existing domestic and foreign law. See generally Currency and Foreign Transactions Reporting Act: Hearings on H.R. 15073 Before the House Committee on Banking and Currency, 91st Cong., 1st and 2d Sess. 11 (1970); Currency and Foreign Transactions Reporting Act-Hearings on S. 3678 and H.R. 15073 Before the SubComm. on Financial Institutions of the Senate Committee on Banking and Currency, 91st Cong., 2d Sess. 13 (1970); H.R.Rep. No. 975, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Ad.News 4394-4416.

*588 Dickinson, 706 F.2d at 91-92; see also California Bankers Ass’n v. Shultz, 416 U.S. 21, 26-30, 94 S.Ct. 1494, 1500-02, 39 L.Ed.2d 812 (1974) (noting same). “Congress evidently believed that to effectively fight petty criminals, members of the underworld, white collar criminals, and income tax evaders it was necessary for financial institutions to maintain adequate records.” United States v. Kattan-Kassin, 696 F.2d 893, 896 (11th Cir.1983).

When the government proves that a financial institution has willfully failed to file CTRs for any of its reportable transactions or that it has filed for only a few out of a vast number of its reportable transactions, a sufficient relationship has been established between those acts to constitute a pattern of illegal activity and thereby trigger the Act’s felony provision. Congress placed the responsibility for filing CTRs on the financial institutions. It is incongruous to believe that Congress intended that a financial institution could insulate itself from felony prosecution by showing that it had not filed CTRs for any of its reportable transactions. Such a systemic disregard of the Act’s reporting requirements is an open invitation to money launderers and other criminals to use the financial institution for hiding their ill-gotten gains. Moreover, allowing only misdemeanor prosecutions of such pervasive and repeated violations may not be sufficient to deter future transgressions. As the House Report explained in discussing the felony provisions of the Act:

It should be noted that serious violations under this title may involve very large sums of money, and fines of as much as $10,000 or more might be shrugged off as a mere cost of doing business. To have any real deterrent effect, the potential fine must be large enough to have some real economic impact on potential violators.

H.R.Rep. No. 975, 91st Cong., 2d Sess. (1970), re-printed in 1970 U.S.Code Cong. & Admin.News 4394, 4406; see also Valdes-Guerra, 758 F.2d at 1414; United States v. So, 755 F.2d 1350, 1355 (9th Cir.1985); Dickinson, 706 F.2d at 92; Kattan-Kassin, 696 F.2d at 897.

We hold that under the standards outlined above, there was sufficient evidence for the jury to have found that St. Michael’s failure to file any CTRs comprised “a pattern of illegal activity.”

IV. THE 18 U.S.C. § 1001 CONVICTIONS

Defendants contest their convictions for violating 18 U.S.C. § 1001. The statute provides:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, will be fined not more than $10,000 or imprisoned not more than five years, or both.

St. Michael’s and Sacharczyk assert that: (1) the trial judge’s instructions failed to apprise the jury that an “affirmative act” of concealment was a prerequisite to convicting for the offense; (2) the evidence was insufficient to establish such an act; and (3) the government failed to prove any concealment or misrepresentation concerning a “matter within the jurisdiction of any department or agency of the United States.” While we are unpersuaded by defendants' latter two contentions, we reverse the § 1001 convictions because we find that the judge’s jury instruction was fatally flawed.

A. The Charge

The judge instructed as follows on the § 1001 count:

It is the Government’s charge that Barbara, Janice, and the Credit Union, knowingly, willfully concealed material facts by trick, scheme or device; that what they were doing was concealing the true nature of these large currency transactions from the Internal Revenue Service. And there is a statute which says that you may not knowingly, willful *589 ly conceal material facts from an agency of the Government performing its functions. That’s a violation, if you personally do it, of a statute that bears number 1001 of Title 18. I’m sure that’s of no particular interest to you. But if one assists another person in doing that, then the person who aids, abets, commands, induces or assists another is responsible as a principal, even though they are what people ordinarily call an aider and an abettor.

The quarrel defendants have with this instruction is that it allowed the jury to find them guilty based solely on the fact that they failed to file CTRs. What is lacking in the charge, they assert, is the requirement that the government prove some “affirmative act” of concealment beyond the failure to file CTRs. The government accepts this standard as well: “Mere passive failure to reveal a material fact to a federal agency will not sustain a 1001 conviction; the government must prove an affirmative act by which a material fact is actively concealed.” Brief for government at 39; see United States v. Shannon, 836 F.2d 1125, 1129-30 (8th Cir.), cert. denied, — U.S. -, 108 S.Ct. 2830, 100 L.Ed.2d 930 (1988); see also United States v. Woodward, 469 U.S. 105, 108 & nn. 4-5, 105 S.Ct. 611, 612 & nn. 4-5, 83 L.Ed.2d 518 (1985). We agree that an affirmative act of concealment is necessary to prove the “trick, scheme or device” element of the § 1001 offense. See Woodward, 469 U.S. at 108 & nn. 4-5, 105 S.Ct. at 612 & nn. 4-5.

In an attempt to save the conviction on this count, the government seems to argue that, even though the jury was not specifically charged that an affirmative act of concealment must be found in order to convict, it necessarily must have concluded that defendants engaged in affirmative acts of concealment. Thus, it contends we may affirm because any error in the charge was harmless. See, e.g., United States v. Doherty, 867 F.2d 47, 57-58 (1st Cir.1989) (“An erroneous instruction on an element of the offense can be harmless beyond a reasonable doubt, if, given the factual circumstances of the case, the jury could not have found the defendant guilty without making the proper factual finding as to that element.”). The government offers the following evidence of affirmative acts to support the § 1001 convictions: (1) Sa-charczyk prepared the French and Perry CTRs for $10,000 transactions; (2) she showed copies of these to DiPerna telling him that they had been filed; (3) she never filed the CTRs with the IRS.

While the government is correct that these facts, if believed by the jury, would be sufficient to sustain a conviction under § 1001 that does not dispose of the issue. Defendants maintain that the jury may have disbelieved the government’s evidence concerning this incident and still have found them guilty under § 1001 simply for not filing CTRs. We agree. In Doherty, we affirmed convictions based upon faulty instructions because we were certain that the jury must have found all of the necessary elements of the crime, see Doherty, 867 F.2d at 58. In this case, however, we cannot say with any degree of certitude that the jury would have come out the same way had they been correctly instructed.' Given the closeness of this issue, such an error cannot be harmless beyond a reasonable doubt. See United States v. Mazza,