dissenting:
Appellant Michael David Alston appeals his conviction of conspiracy to defraud the United States and the Department of the Treasury in violation of 18 U.S.C. § 371. The district court found that Alston engaged in a Klein conspiracy with the intent to “impair, obstruct and defeat the lawful government function of collecting data and reports of currency transactions” by arranging his bank transactions to avoid the reporting requirements of 31 U.S.C. § 5313(a) and 31 C.F.R. § 103.22(a)(1). United States v. Alston, Crim. No. 93-445-1 at 11, 1994 WL 116046 (Apr. 6, 1994); Appellant’s App. at 41. Because I believe that the evidence is sufficient to support a conviction for violation of 18 U.S.C. § 371, I would affirm the district court. Therefore, I dissent.
The majority believes that because the conviction for conspiracy to defraud the United States is “premised exclusively on Alston’s structuring activity,” the government must demonstrate the same mens rea for a conviction under 18 U.S.C. § 371 as is necessary for a conviction under 31 U.S.C. § 5322. Majority Op. at 719. I disagree.
Section 5322 requires that a defendant “willfully” commit a violation. The Supreme Court has interpreted this “willfulness” requirement to mean that a defendant who intentionally commits unlawful acts must also have known that his actions were unlawful. Ratzlaf v. United States, — U.S.-,-, *722-, 114 S.Ct. 655, 657, 663, 126 L.Ed.2d 615 (1994). Section 371, in contrast, imposes no such “willfulness” requirement, and we should not create one. As we stated in United States v. Vazquez, a § 371 conspiracy to defraud “is itself a substantive offense, and a count of an indictment drawn under it need refer to no other statute than § 371.” 319 F.2d 381, 384 (3d Cir.1963). Thus there is no logical reason to apply the willfulness requirement contained in § 5322 when § 371 encompasses the entire statutory charge against Alston.
The government, having failed to prove the requisite mens rea for conviction under one statute, 31 U.S.C. § 5322, has obtained a conviction under another more general statute, 18 U.S.C. § 371. Section 371 requires only a showing that Alston intentionally committed unlawful acts — not a showing that he knew his actions to be unlawful. The fact that the two charges are premised on the same factual scenario is of no legal significance in this case. There is nothing unusual or improper in the government’s alternative characterization of the same facts, so long as both theories are alleged in the indictment, as they were here. Indictment, Count I at ¶ 7(a) — (b); App. at 12a; Id. at Count II, ¶ 2; App. at 17a.
I
Alston was originally convicted on two counts of a three count indictment. Count I charged Alston in two subparts with conspiracy to defraud the United States and the Department of the Treasury in violation of 18 U.S.C. § 371 and with conspiracy to structure for the purpose of evading the reporting requirements of 31 U.S.C. § 5313(a).1 Alston, Crim. No. 93-445-1 at 1, 1994 WL 116046; Appellant’s App. at 31; Indictment, Count I at ¶ 7(a) — (b); App. at 12a. Count II charged Alston with “structuring” a financial transaction in violation of 31 U.S.C. § 5324(a)(3). Alston, Crim. No. 93-^45-1 at 1, 1994 WL 116046; Appellant’s App. at 31; Indictment, Count II at ¶ 2; App. at 17a.
The structuring and conspiracy to structure charges were prosecuted pursuant to 31 U.S.C. § 5322, which provided that defendants must be convicted of “willfully violating” the anti structuring laws.2 At the time of Alston’s indictment and trial, we interpreted the “willfulness” mens rea requirement in § 5322 to mean that a defendant had to have “knowledge of the legal reporting requirements and the intent to prevent the bank from furnishing the required information.” United States v. Shirk, 981 F.2d 1382, 1391-92 (3d Cir.1992) (footnote omitted), vacated, - U.S.-, 114 S.Ct. 873, 127 L.Ed.2d 70 (1994) (citing Ratzlaf v. United States, - U.S. -, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994)). The government did not have to prove that the defendant knew that he was violating the law by structuring his transactions.
After the conclusion of Alston’s bench trial, the Supreme Court decided Ratzlafv. United States. - U.S. -, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994). Ratzlaf interpreted the word “willfully” as it then appeared in 31 U.S.C. § 5322 to require that the government show not only that a defendant intended to circumvent a bank’s obligation to report *723currency transactions but that the defendant knew that his efforts to circumvent those requirements were unlawful. Id. at -, -, 114 S.Ct. at 657, 663. In light of Ratzlaf, Alston filed post-trial motions to set aside his convictions. The district court, with the government’s acquiescence, vacated the structuring charge in Count II and the conspiracy to structure charge in Count I and acquitted Alston of these crimes.
Despite Ratzlaf, the district court affirmed Alston’s conviction for conspiracy to defraud the United States and the Treasury Department in violation of 18 U.S.C. § 371. The court held that Alston was “a co-conspirator in a scheme to prevent the United States from receiving information to which it is entitled when a bank files a CTR.... ” Alston, Crim. No. 93-445-1 at 14, 1994 WL 116046; Appellant’s App. at 44. The court distinguished Ratzlaf “on the basis that its analysis of the willfulness element centers on the use of the term ‘willfully’ in the antistrue-turing statute found at 31 U.S.C. §§ 5322(b) and 5324(a)(3).” Id3 Because § 371 does not contain an analogous willfulness element, the court did not require proof that Alston knew that his actions were unlawful.
The district court’s analysis is clearly correct. At the time Alston was charged and convicted, the relevant portion of § 371 provided as follows:'
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any matter for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
18 U.S.C. § 371. In United States v. Vazquez, we explained that this general conspiracy statute
condemns two types of conspiracies: One, to commit substantive offenses against the United States specified under other statutes. The other to defraud the United States. The latter conspiracy is itself the substantive offense, and a count of an indictment drawn under it need refer to no other statute than § S71.
319 F.2d at 384 (emphasis added) (citing Glasser v. United States, 315 U.S. 60, 67, 62 S.Ct. 457, 463, 86 L.Ed. 680 (1942)); see also United States v. Jackson, 33 F.3d 866, 870 (7th Cir.1994) (citing United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir.1993); United States v. Bucey, 876 F.2d 1297, 1312 (7th Cir.1989), cert. denied, 493 U.S. 1004, 110 S.Ct. 565, 107 L.Ed.2d 560 (1989); United States v. Rosengarten, 857 F.2d 76, 78 (2d Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790, (1989)); United States v. Vogt, 910 F.2d 1184, 1200 (4th Cir.1990), cert. denied, 498 U.S. 1083, 111 S.Ct. 955, 112 L.Ed.2d 1043 (1991).
Section 371 “reaches ‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’ ” Dennis v. United States, 384 U.S. 855, 861, 86 S.Ct. 1840, 1844, 16 L.Ed.2d 973 (1966) (citations omitted). Klein conspiracies, for example, may be prosecuted under the “defraud” clause of § 371. See United States v. Tarnopol, 561 F.2d 466, 474-75 (3d Cir.1977) (acquitting defendants of Klein conspiracy because there was no basis for jury finding of intent “to impede and obstruct the functions of the Internal Revenue Service”); United States v. Klein, 247 F.2d 908 (2d Cir.1957), cert. denied, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958), and cert. denied sub nom., Haas v. United States, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958), and cert. denied sub nom., Alprin v. United States, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958); see also United States v. Derezinski, 945 F.2d 1006, 1010 (8th Cir.1991); United States v. Farm & Home Savings Assoc., 932 F.2d 1256, 1260 (8th Cir. *7241991), cert. denied sub nom., Meyer v. United States, 502 U.S. 860, 112 S.Ct. 179, 116 L.Ed.2d 141 (1991), and cert. denied sub nom., Wilmot v. United States, 502 U.S. 860, 112 S.Ct. 179, 116 L.Ed.2d 141 (1991); United States v. Cambara, 902 F.2d 144, 145-47 (1st Cir.1990).
Klein conspiracies are conspiracies to defraud the United States by obstructing or impeding the Internal Revenue Service in the collection of taxes or in its lawful functions and duties to collect, analyze, and disseminate information contained in CTRs. Derezinski, 945 F.2d at 1010; Farm & Home Savings Assoc., 932 F.2d at 1260; Cambara, 902 F.2d at 145-47. A Klein conspiracy consists of three elements: “(1) the existence of an agreement, (2) an overt act by one of the conspirators in furtherance of the [agreement’s] objectives, and (3) an intent on the part of the conspirators to agree, as well as to defraud the United States.” United States v. Shoup, 608 F.2d 950, 956 (3d Cir.1979). Knowledge of illegality is not an element of a Klein conspiracy. As the majority concedes, a conviction under the “defraud” clause of 18 U.S.C. § 371 requires a lesser showing of intent than does a conviction under 31 U.S.C. § 5322. Majority Op. at 720 (“establishing a true Klein conspiracy under the ‘defraud’ clause does not generally require proof of knowledge of illegality_”).
The district court convicted Alston of a Klein conspiracy based upon several transactions conducted by or on behalf of Alston between October 5 and October 7, 1988. On October 5, Alston purchased from Meridian Bank a $9,000 money order payable to West German Motor Imports to be used toward the purchase of a new BMW. On October 6, 1988, Alston had co-conspirator Rosa purchase from Provident National Bank a $6,000 cashiers check payable to West German. The following day, October 7, 1988, Alston purchased with cash an $8,000 money order payable to West German from Meridian Bank. That same day, Alston purchased a second money order at Meridian Bank for $6,500 with a cash advance from a credit card. All of these negotiable instruments were delivered to West German and credited toward Alston’s purchase of the BMW.4
Alston conducted three of these four transactions through Terese Drew, a bank teller at Meridian Bank. Drew, who became head teller at Meridian in 1986 or 1987, described herself as a “very close friend” of Alston. Drew knew about the CTR reporting requirements imposed by law. The district court concluded that Drew discussed the CTR requirements with Alston some time before the events that led to the indictment. The court discounted Drew’s statement that she did not believe that Alston knew of the CTR requirements because “it appeared to be part of her attempt to protect the defendant and it was asking her to speculate as to the defendant’s state of mind.” Alston, Crim. No. 93-445-1 at 10 n. 5, 1994 WL 116046; Appellant’s App. at 40.
Furthermore, the parties stipulated that Alston failed to file income tax returns for the calendar years 1987 and 1988. Based upon this evidence, the district court concluded that Alston arranged his transactions because “he did not want his name called to the attention of the Internal Revenue Service as someone who was financially capable of making large cash payments but nevertheless had failed to file income tax returns.” Id. at 11, 1994 WL 116046; Appellant’s App. at 41.
The district court summarized its understanding of these facts as follows:
The circumstantial evidence presented at trial shows that the overt acts were done willfully and resulted in the bank failing to file CTRs because the transactions occurred on separate days and at separate banks in amounts less than $10,000 and were done with the purpose of preventing CTRs from being filed.
Id. at 14, 1994 WL 116046; Appellant’s App. at 44. Thus the district court found all three elements necessary for conviction of a Klein conspiracy under 18 U.S.C. § 371: (1) an *725agreement between Alston and Rosa, (2) “overt acts” in furtherance of that agreement, and (3) an intent to defraud the United States of the CTRs to which it was entitled under 31 U.S.C. § 5313(a) and 31 C.F.R. § 103.22(a)(1).
Alston possessed the requisite mens rea for a § 371 conviction because these overt acts were done “with the purpose of preventing CTRs from being filed.” No other mens rea is necessary for conviction. As the majority itself acknowledges, “[sjeveral courts have sustained Klein convictions when the evidence sufficed to prove an accompanying ‘intent and purpose of impeding and obstructing the IRS in the collection of revenue and the performance of its duties.’ ” Majority Op. at 718 (citing United States v. Vogt, 910 F.2d at 1203; United States v. Montalvo, 820 F.2d 686, 690 (5th Cir.1987); United States v. Browning, 723 F.2d 1544 (11th Cir.1984)).
Ratzlaf is inapposite because it discusses a different statute with a different mens rea requirement. The Supreme Court stressed in Ratzlaf itself that it did not discard “the venerable principle that .ignorance of the law generally is no defense to a criminal charge.” Ratzlaf, — U.S.-,-, 114 S.Ct. 655, 663, 126 L.Ed.2d 615 (1994). The Court simply made an exception in one instance pursuant to a specific decree from Congress. Id. Because there is no “willfulness” requirement in § 371, Ratzlaf does not apply, and the government is not required to prove that Alston knew that his actions were illegal. The majority should not graft an additional mens rea requirement onto § 371 when it is warranted by neither the words of the statute nor Supreme Court precedent.
II
To understand how the majority came to impose this additional mens rea requirement on a § 371 conspiracy to defraud case, it is helpful to examine the majority’s general approach to the issue. The majority reverses Alston’s conviction for conspiracy to defraud the United States because it has “substantial difficulty in understanding how Alston can be convicted of a conspiracy to defraud by structuring when he cannot be guilty of a conspiracy to structure or of structuring itself....” Majority Op. at 715 (footnote omitted). The majority never lays the facts of this case and the elements of a Klein conspiracy side by side to determine whether the facts satisfy the elements necessary for conviction under 18 U.S.C. § 371.5 Instead, the majority emphasizes the similarity between the factual scenario supporting the structuring and conspiracy to structure charges and the factual scenario supporting the conspiracy to defraud charge — a consideration that I believe is irrelevant.
The majority opinion proceeds along two closely linked lines of reasoning. First, the majority identifies a perceived deficiency in the indictment. According to the majority, the indictment does not adequately allege a Klein conspiracy independently of the structuring and conspiracy to structure charges. See Majority Op. at 714-715; see also Id. at 720. Second, the majority argues that Alston cannot be convicted of a conspiracy to defraud the United States based upon the same factual scenario used to support the unsuccessful structuring and conspiracy to structure charges. Majority Op. at 714-715, 719, 720-721. I will address these contentions in turn.
The Indictment
Count I of the indictment clearly indicates the government’s intention to seek a conviction of Alston under 18 U.S.C. § 371. The language in the indictment mirrors relevant statutory and judicial pronouncements on § 371 and Klein conspiracies. The indictment alleges in pertinent part that Alston and Rosa conspired
a. to defraud the United States and the Department of the Treasury, an agency of the United States, by impairing, obstructing, and defeating its lawful governmental function of collecting data and reports of *726currency transactions in excess of $10,-000....
Indictment, Count I at ¶ 7(a); App. at 12a.
Section 371 penalizes individuals who “conspire ... to defraud the United States, or any agency thereof....” 18 U.S.C. § 371. In Dennis v. United States, the Supreme Court elaborated on this statutory language, noting that § 371 covers not only fraud but any conspiracy for the purpose of “impairing, obstructing, or defeating the lawful function of any department of government....” 384 U.S. at 861, 86 S.Ct. at 1844 (citations omitted). The language of paragraph 7(a) of the indictment closely tracks the language of § 371 and Dennis. It is therefore clear that the government intended to charge Alston with a violation of § 371 for obstructing lawful governmental functions.
A Klein conspiracy, which may be prosecuted under § 371, is a conspiracy “to interfere with or obstruct one of [the government’s] lawful governmental functions.... ” Klein, 247 F.2d at 916. Obstruction of lawful government functions is exactly what was alleged in paragraph 7(a) of the Alston indictment. Alston was accused of impairing and obstructing the government’s lawful function of “collecting data and reports of currency transactions in excess of $10,000.... ” The indictment in Klein was “framed to make a general charge of impeding and obstructing the Treasury Department in the collection of income taxes.... ” Id. at 916. Likewise, the indictment in this case was framed to make a general charge of impeding and obstructing the Treasury Department in the collection of CTRs. See Derezinski, 945 F.2d at 1010; Farm & Home Savings Assoc., 932 F.2d at 1260; Cambara, 902 F.2d at 145-47.
The district court understood the indictment to allege a Klein conspiracy, and Alston has not disputed that the indictment charges a crime under 18 U.S.C. § 371 that is separate from the structuring and conspiracy to structure charges. Paragraph 7(a) clearly alleges a Klein conspiracy to thwart the government’s lawful purpose in collecting information from CTRs.6
The majority argues that United States v. Murphy supports its argument concerning the insufficiency of the Alston indictment. Majority Op. at 720. The indictment in Murphy was narrowly drawn to state that defendants conspired to defraud the IRS in its collection of information with regard to currency transactions. 809 F.2d 1427, 1431-32 (9th Cir.1987). Specifically, the § 371 conspiracy to defraud charge rested “solely on the alleged falsehoods in the CTR [defendant] filed.” Id. The court found, however, that defendant had in fact filed an accurate CTR. Id. at 1429-32. Therefore, the § 371 charge alleged in the indictment was manifestly unsupported by the evidence.
The government argued that although the CTR alone could not support a conviction on the § 371 charge, the court should nevertheless entertain a charge of conspiracy to defraud based upon broader allegations of money laundering. Id. at 1432. The government argued that the CTR was a thread in a larger web of transactions designed to thwart the IRS in the performance of its duties. The court refused to consider these broader allegations because “[t]be indictment d[id] not allege a conspiracy to defraud premised upon the defendants’ entire laundering operations. It is far more narrowly drawn.... Therefore, the indictment before us does not properly allege a conspiracy to defraud.” Id. (citing United States v. Dela Espriella, 781 F.2d 1432, 1435 (9th Cir.1986)).
This case is clearly distinguishable from Murphy. In Murphy, the government attempted to switch the factual basis and legal *727theory of its case from defendants’ currency transactions to a broader charge encompassing the whole of defendants’ money laundering operations, even though this broader charge was not alleged in the indictment. In this case, however, the government has not attempted to switch either its factual allegations or its legal theories. The indictment clearly alleged a § 371 conspiracy to defraud in Count I, paragraph 7(a), based upon the “Overt Acts” alleged in the indictment. The government has alleged the same Klein conspiracy to defraud based upon the same facts throughout the proceedings. Where the government attempted in Murphy to switch factual scenarios and legal theories midstream, the government in this case merely seeks affirmation of the conspiracy to defraud that it alleged in the district court. Murphy is completely inapposite.
Mens Rea Necessary for Conviction
The majority’s second major contention is that Alston cannot be convicted of a § 371 conspiracy to defraud the United States unless he possesses the requisite mens rea for conviction of structuring or conspiracy to structure as set out in Ratzlqf. The majority states that “the charge against Alston for conspiracy to defraud, which was premised exclusively on Alston’s structuring activity, must be vacated for failure to prove the mens rea (knowledge of illegality) required not only by the underlying substantive offense of structuring, but also by the conspiracy to defraud by structuring.” Majority Op. at 719.
The majority refers to the crime of which Alston was convicted as “conspiracy to defraud by structuring” at least four times in its opinion. Majority Op. at 715, 718, 719, 721. This formulation is indicative of what I believe to be a fundamental flaw in the majority’s conception of this case. See supra note 6. The crime for which Alston was actually convicted, of course, is a § 371 conspiracy to defraud the United States. The indictment alleges this conspiracy to defraud in a separate paragraph that does not include any reference to structuring. Indictment, Count I at ¶ 7(a); App. at 12a. Section 371 does not refer to “structuring” or conspiracy to defraud “by structuring.” Congress included nothing in § 371 to indicate that the requirements for a § 5322 structuring conviction should be grafted onto a prosecution for a § 371 conspiracy to defraud the United States. Without aid of close statutory interpretation or legislative history, the majority unilaterally amends § 371 to add the words “by structuring” and thereby allows all of the requirements for a § 5322 conviction to slip into a § 371 case where they do not belong.7
The gravamen of the majority’s argument seems to be that there is something improper about basing the case for a § 371 violation on the same so-called “structuring” behavior for which the government failed to obtain a conviction under § 5322. See, e.g., Majority Op. at 719. The majority observes that there is no difference between “the government’s ‘defraud’ scenario and the ‘structuring’ scenario of which Alston was acquitted.” Majority Op. at 720. Neither the government, nor the district court, nor I have ever argued that there is a difference between the factual scenarios supporting each charge. There simply are two alternative charges, brought pursuant to two different statutes,. based upon the same factual scenario. Because 18 U.S.C. § 371 has a lower mens rea requirement than 31 U.S.C. § 5322, Alston’s behavior is culpable under § 371, even though he lacked the mens rea to be convicted under § 5322.
It has long been recognized “that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.” United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 2203-04, 60 L.Ed.2d 755 (1979). It does not matter that the government decides to invoke a general statute when a more specific criminal statute is available. United States v. Curran, 20 F.3d 560, 565-66 (3d Cir.1994) (citing United States v. Woodward, 469 U.S. 105, 108, 105 S.Ct. 611, 612, 83 L.Ed.2d 518 (1985) (per curiam)); United States v. Beacon Brass Co., 344 U.S. 43, 46, 73 S.Ct. 77, 79, 97 L.Ed. 61 (1952); United States v. Parsons, 967 F.2d 452, 456 (10th *728Cir.1992); United States v. Hopkins, 916 F.2d 207, 218 (5th Cir.1990); United States v. Hansen, 772 F.2d 940 (D.C.Cir.1985); United States v. Gordon, 548 F.2d 743, 745 (8th Cir.1977); United States v. Carter, 526 F.2d 1276, 1278 (5th Cir.1976)); United States v. Derezinski, 945 F.2d 1006, 1010 (8th Cir.1991).
Thus, the government could have pursued a conviction in this case under the “defraud” clause of 18 U.S.C. § 371 alone, without ever bringing a charge for the more specific offenses of structuring or conspiracy to structure and without ever referencing 31 U.S.C. § 5322. In that case, there would be no question of characterizing the facts as “structuring” or of imposing the Ratzlaf mens rea on a § 371 ease. We would simply examine the facts and compare them with the elements and mens rea necessary for conviction of a § 371 violation to determine whether Alston is guilty of a Klein conspiracy to defraud the United States. See supra Part I. I submit that this is essentially the case we now have before us. If Alston’s actions satisfied the requirements for a § 371 conspiracy to defraud the United States, it should not matter that he was acquitted of independent, narrower charges in a multiple-count indictment. Unless the majority can explain precisely which element of a § 371 conspiracy to defraud the United States is lacking, we should affirm the district court.
The Seventh Circuit’s opinion in United States v. Jackson is indistinguishable from this case. 33 F.3d 866 (7th Cir.1994). In Jackson, defendants were originally convicted of structuring, conspiracy to structure, and conspiracy to defraud the United States — the exact same charges of which Alston was originally convicted. Id. at 867. Pursuant to Ratzlaf, the court reversed the structuring and conspiracy to structure convictions, but affirmed the § 371 conspiracy to defraud. Id. at 868.
The majority argues that Jackson is distinguishable because it “involved additional charges in the indictment and additional evidence produced at trial, over and beyond that required for a conviction for pre-1994 structuring.” Majority Op. at 721. Contrary to the majority’s assertion, however, the Jackson court never said that additional charges or evidence were necessary for a conviction on the § 371 count. The court’s reasoning was quite clear:
[Defendant’s] first contention — that Rat-zlaf requires reversal of the § 371 conviction — is misplaced because the government did not have to demonstrate that the defendants violated the antistructuring laws. Ratzlaf s holding concerning the meaning of “willfully violating” in the antistructur-ing laws, therefore, has no bearing on the defendants’ § 371 convictions; § 371 contains no such language.
Jackson, 33 F.3d at 871 (emphasis added).
The majority’s attempts to distinguish Jackson miss the mark. First, the majority argues that it is significant that the Jackson indictment, in charging the § 371 count, “never mentions a structuring violation or the relevant antistructuring statutes.” Majority Op. at 721 (quoting Jackson, 33 F.3d at 870). An examination of this sentence in context shows that it does not deserve the prominence that the majority gives it:
[T]he government argues that a § 371 conspiracy to defraud the United States is an independent violation that need not be based on the violation of another substantive statute. The government points out that count one of the indictment in this case, which sets forth the § 371 charge, never mentions a structuring violation or the relevant antistructuring statutes. Count one charges a conspiracy “to defraud the United States”; it does not allege a conspiracy “to commit any offense against the United States.”
Jackson, 33 F.3d at 870. The Jackson court was merely emphasizing that the government alleged an independent conspiracy to defraud count and that that count is not dependent upon the other structuring counts — a point that I have emphasized and that supports a conviction on the independent § 371 count. The court meant nothing more by this statement, and it set out no general rule.
The majority’s selected quotation from Jackson also fails to distinguish the language in the Jackson indictment from the language in the Alston indictment. Paragraph 7(a) of the Alston indictment, like Count I in Jackson, “never mentions a structuring violation or the relevant antistructuring statutes.” Even though the § 371 conspiracy to defraud *729charge is based upon the same facts as the structuring charges, it is framed as an independent allegation in paragraph 7(a). Thus any perceived “distinction” based upon this language is entirely illusory.
The majority’s second “distinction” is equally futile. The majority argues that it is significant that Jackson involved other “extensive evidence” beyond structuring activity to demonstrate the conspiracy to defraud. As examples of such extensive evidence, the majority cites the fact that defendants had no wage or income and that they spent over $300,000 to purchase homes and exotic automobiles. Majority Op. at 721.
The Jackson court, however, never indicated that these additional facts were necessary for a conviction under § 371. The court “set[s] forth in detail the structuring activity of the defendants — as well as other evidence — that demonstrates a conspiracy to defraud the United States under § 371.” Jackson, 33 F.3d at 868. It does not mention or even allude to this “other evidence” when it explains its reasoning, however, and it never implies that such “other evidence” is essential for a conviction. Id. at 870-71.
The majority not only fails to explain why other evidence of a conspiracy to defraud the United States is necessary for a conviction; it ignores the existence of additional evidence in this case. There was evidence that Alston, like the defendants in Jackson, failed to file income tax returns. Compare Alston, Crim. No. 93-445-1 at 10, 1994 WL 116046; Appellant’s App. at 40 with Jackson, 33 F.3d at 869. The majority offers no guidance as to how much “other evidence” is sufficient to support a § 371 conviction. Surely a failure to file income taxes is an indication that defendants had a motive to defraud the United States of information about large cash purchases that would otherwise appear in CTRs. Again, the majority finds a “distinction” when there is no significant difference between the factual scenarios.
United States v. Derezinski, a case very similar to the case at bar,8 also supports the district court’s reasoning. Derezinski was prosecuted under the “defraud” clause of § 371, even though he might have been prosecuted under the more specific “offense” clause. 945 F.2d at 1010. Since specific statutes existed, Derezinski argued, “it is no longer appropriate for the Government to prosecute conspiracies to commit acts governed by those statutes under the general defraud clause.” Id. The Eighth Circuit firmly rejected this argument:
[Defendant’s] arguments attempt to draw our attention away from the true issue in this case. His claim that the Government is really charging him with conspiring to violate [specific substantive statutes] is simply not true. The Government has steadfastly persisted in proving that [the defendant] participated in a Klein conspiracy to defraud the -United States. While it may be true that the Government could have also charged [the defendant] under the specific offense clause of section 371, it is well settled that when conduct violates more than one criminal statute, the Government may choose which statute it will apply, [citing Batchelder ]. The Government was within its discretion when it decided to prosecute [the defendant] under the general defraud clause of section 371.
Id. It should make no difference to the § 371 prosecution in this case that the government failed to obtain convictions under the substantive statutes.
Most importantly, the Eighth Circuit denied Derezinski’s challenge to the district court’s jury charge regarding intent. Derez-inski argued that because the criminal tax statute defining the specific offense required a showing of “willfulness” (as defined by Cheek v. United States), the government should bear the burden of demonstrating the same level of willfulness when pursuing a conviction under the “defraud” clause of § 371. Id. at 1012 (citing Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)). The Eighth Circuit flatly rejected this contention: “Cheek does not apply to this case because the Government prosecuted Derezinski under a general conspiracy statute, not a criminal tax statute, and because ‘willfulness’ is not an express element of section 371.” Likewise, Ratzlaf does not apply to this case. The government prosecution at issue is pursuant to § 371, not § 5322. “Willfulness” is not an express element of § 371.
*730The majority offers United States v. Cur-ran as authority to support its argument concerning mens rea. Majority Op. at 718 (citing United States v. Curran, 20 F.3d 560 (3d Cir.1994)). The majority’s reading of Curran would make § 371 dependent upon the level of mens rea necessary for a conviction under § 5322. Thus the majority’s analysis of Curran conflicts directly with Vazquez’s statement that the “defraud” clause of § 371 is an independent charge that need be based on no other part of the U.S.Code. It also conflicts with the analysis of § 371 in Derezinski and Jackson. I do not believe that we intended in Curran to overrule Vazquez or to change radically our reading of the defraud clause of § 371. I also do not believe that the majority’s interpretation of Curran’s holding comports with a close reading of that case.
The defendant in Curran was prosecuted for causing campaign treasurers to make false statements to the Federal Election Commission (FEC). The defendant could not be prosecuted directly under 18 U.S.C. § 1001 for concealing material facts and making false representations, however, because it was the campaign treasurers, rather than the defendant, who prepared the false reports and submitted them to the Commission. Curran, 20 F.3d at 567. The government therefore used 18 U.S.C. § 2(b) in conjunction with § 1001 to charge defendant with causing campaign treasurers to file false reports. Section 2(b), like 31 U.S.C. § 5322, requires “willfulness” on the part of the defendant in order to sustain a conviction. Relying on Ratzlaf, we interpreted § 2(b) “willfulness” in cases brought under §§ 2(b) and 1001 in the federal election law context to mean that the prosecution must prove that “defendant knew of the treasurers’ reporting obligations, that he attempted to frustrate those obligations, and that he kneiv his conduct ivas unlawful.” Id. at 569 (emphasis added).
The indictment in Curran alleged that defendant caused treasurers of various campaign committees to make incorrect reports to the FEC. Id. Nevertheless, the trial judge erroneously charged the jury that “as a matter of law, ... defendant had a legal duty to disclose the facts in question to the agency in question, the Federal Election Commission or to make certain that [the] information would have gotten to them.” Id. (emphasis added). In regard to intent, the trial judge erroneously failed to instruct the jury that it must find that the defendant knew that his conduct was unlawful. Id. We therefore overturned the district court on two grounds: (1) its charge erroneously placed the reporting duty directly on the defendant and (2) the instruction on § 2(b) and § 1001 willfulness did not communicate the proper mens rea.
The majority’s discussion of Curran begins with the definition of “willfulness” as it appears in §§ 1001 and 2(b). Majority Op. at 719. Because there is no “willfulness” requirement in § 371, this part of the Curran opinion is not directly applicable to this case. See discussion Part I, supra. The majority then addresses the section of the Curran opinion dealing with the “defraud” clause of § 371. The majority quotes Curran as holding that the district court’s misstatement of the legal standard for “willfulness” “undermined not only the substantive counts, but the conspiracy [to defraud] one as well. The essence of conspiracy is an agreement to commit an act that is illegal.” Majority Op. at 719 (citing Curran, 20 F.3d at 571).
A careful reading of Curran demonstrates that the majority’s interpretation of this dictum is plainly incorrect. The paragraph from which the majority quotes reads in full:
As stated earlier, the misstatement of the law applicable to the defendant’s legal duty to disclose facts to the Commission amounted to plain error. This misstatement undermined not only the substantive counts, but the conspiracy one as well. The essence of conspiracy is an agreement to commit an act that is illegal. If a jury is misled into considering as unlawful the omission of an act that the defendant is under no duty to perform, then a finding of conspiracy based on such conduct cannot stand. It follows that the conspiracy count must therefore be vacated.
Curran, 20 F.3d at 571 (citations omitted). Reading these sentences in context, it is clear that we refer not to the district court’s misstatement of the legal standard for “willfulness,” as the majority contends, but to its misstatement of the defendant’s duty to re*731port to the FEC. This portion of Curran, like most of the opinion, discusses the duty of defendant relative to that of the campaign treasurers, not the mens rea requirement for a § 371 conspiracy to defraud.
The majority’s argument that Curran makes the defraud clause of § 371 dependent on the intent necessary for conviction of another offense, therefore, hinges entirely on one paragraph of dictum. That paragraph says in pertinent part that:
The comments we have previously made about the failings of the instruction on intent apply to the conspiracy count as well. As noted in American Investors, 879 F.2d at 1100, ‘[i]n order to prove a conspiracy, the government must show an agreement to commit an unlawful act combined with intent to commit the underlying offense.’ On retrial, the instructions on intent as to the conspiracy count must track those applicable to the substantive counts.
Id.
Curran’s restatement of the general rule for conspiracy does nothing to change the outcome in this case. If the majority insists on reading this dictum to make § 371 dependent upon § 5322, Curran conflicts with Vazquez’s holding that a count drawn under the defraud clause “need refer to no other statute than § 371.” Vazquez, 319 F.2d at 384; see also Jackson, 33 F.3d at 870; Derezinski, 945 F.2d at 1010. In case of a conflict, I believe that our decision is controlled by Vazquez.
Moreover, the quote from American Investors, upon which the Curran dictum relies, was taken from a general discussion of conspiracy, without specific reference to the “defraud” clause of § 371 or to Vazquez. Vazquez, on the other hand, explicitly stated a general rule for the “defraud” clause of 8 371, 319 F.2d at 384; see Glasser v. United States, 315 U.S. 60, 67, 62 S.Ct. 457, 463, 86 L.Ed. 680 (1942); a rule followed by this court and other courts in similar' cases. See, e.g., Vogt, 910 F.2d 1184 (3d Cir.1990); Jackson, 33 F.3d 866 (7th Cir.1994); Derezinski, 945 F.2d 1006 (8th Cir.1991). Three sentences of dictum in a case almost entirely concerned with another legal issue should not serve to subvert our precedent as well as Congress’ expression of the mens rea necessary for conviction under 18 U.S.C. § 371. The Curran language is simply too slender a reed to support the weight that the majority wishes it to bear.
For the above reasons, I conclude that Alston satisfies all of the elements necessary for conviction of a Klein conspiracy to defraud the United States under 18 U.S.C. § 371. Nothing in Ratzlaf or in the structuring statutes themselves changes this fact, and the majority barely addresses it. I therefore respectfully dissent.
Before: ROTH, McKEE and GARTH, Circuit Judges.
SUR PETITION FOR REHEARING
April 29, 1996
The petition for panel rehearing filed by appellee in the above-entitled case having been submitted to the judges who participated in the decision of this court, and no judge who concurred in the decision having asked for rehearing, the petition for rehearing is denied.
Judge Roth would grant panel rehearing for the reasons stated in her panel dissent.
. Count I reads in pertinent part:
7. From on or about July 28, 1988 to on or about December 9, 1988 in the Eastern District of Pennsylvania, defendants
MICHAEL DAVID ALSTON, and RICHARD ROSA
did knowingly, willfully and unlawfully conspire, combine, confederate, and agree together with an unindictcd co-conspirator, and others unknown to the grand jury:
a. to defraud the United States and the Department of the Treasury, an agency of the United States, by impairing, obstructing, and defeating its lawful governmental function of collecting data and reports of currency transactions in excess of $ 10,000....
b. to knowingly and willfully structure, and attempt, aid, abet and cause the structuring of, financial transactions with a domestic financial institution for the purpose of evading the reporting requirements of 31 U.S.C. § 5313(a), in violation of 31 U.S.C. § 5324(a)(3).
Indictment, Count I at ¶ 7; App. at 12a.
. Section 5324 has since been amended to add a criminal penalty provision so that a prosecution can now be brought directly under that statute without reference to § 5322. See United States v. Zehrbach, 47 F.3d 1252, 1262 n. 7 (3d Cir.1995) (citing 1994 Riegle Community Development and Regulatory Improvement Act, Pub.L. No. 103-325, § 411, 108 Stat. 2253 (1994)).
. As the majority notes, 31 U.S.C. § 5322 imposed criminal penalties only for "willful" violations of §§ 5313 or 5324 at all times relevant to this appeal. Prior to its amendment in 1994, § 5322 read as follows:
A person willfully violating this subchaptcr [31 U.S.C. § 5311 et seq.\ or a regulation prescribed under this subchaptcr (except section 5315 of this title or a regulation prescribed under section 5315) shall be fined not more than $250,000, or imprisoned for not more than five years, or both.
31 U.S.C. § 5322(a).
. Alston presumably paid West German in negotiable instruments in order to avoid triggering West German’s duty to file an IRS Form 8300 reporting a scries of cash transactions in excess of $10,000. No criminal indictment was brought for failure to file 8300 forms because the applicable three year statute of limitations for this offense had already run.
. When the majority does address the government’s Klein conspiracy theory, it does so in a perfunctory manner, dismissing it as "a far dif-fererit conspiracy” than the one alleged in the indictment. Majority Op. at 715.
. The majority argues that "the entire indictment speaks only to structuring activities and contains no allegations that Alston defrauded the government in any other respect." Majority Op. at 720. The majority's characterization of the activities in the indictment as "structuring activities” begs the question. Whether Alston engaged in "structuring" activities is a legal question, not a factual matter. We could assume a different result just as easily by insisting that the indictment alleges only “AT&íre-conspiracy activities” and that the language in indictment paragraph 7(a) “sounds in Klein-c onspiracy.”
The "Overt Acts” section of the indictment alleges a series of activities by Alston and Rosa. Indictment, Overt Acts at ¶¶ 1-14; App. at 13a-16a. The majority's repeated characterization of these activities as "structuring activities” ignores Count I paragraph 7(a), which proffers an alternative characterization of the facts.
. As wc have already noted, the “defraud” clause of § 371 is an independent offense requiring no reference to any other statute in the U.S.Code. Vazquez, 319 F.2d at 384.
. Like the defendant in this case, Derezinski was prosecuted under the defraud clause of § 371 for a Klein conspiracy that consisted, inter alia, of circumventing the financial reporting requirements of a financial institution. Derezinski, 945 F.2d at 1009-10.