posted on Dec, 2 2012 @ 04:00 PM
In addition to the missing essential elements, the statute and regulations of the Act itself fatally is flawed and void.
The statute and regulations implementing the Act do not require individuals to inform either their bank or the IRS that they are engaging in
multiple but related transactions in order to avoid the CTR filing requirement. The relevant statute authorized the Secretary to impose such a duty,
his implementing regulations did not do so. U.S. v. Varbel 780 F.2d 780 F.2d 758 at 762; U.S. v. Murphy, 809 F.2d 1427 at 1431. Without the
implementing regulations the statute by itself, does not have the force and effect of law. U.S. v. Merskey, 361 U.S. 431; California Bankers Assn. v.
Schultz, 416 U.S. 21; U.S. v. Reinis, 794 F.2d 506; U.S. v. Two Hundred Thousand Dollars, 590 F.Supp. 866.
Failure to charge all three elements should have caused the counts to be dropped from the indictment, See Hamling v. U.S., 418 U.S. 87, 117, 94
S.Ct. 2887, 2907-08, 41 L.Ed.2d 590; U.S. v. Hooker, 841 F.2d 1225; U.S. v. Pupo, 841 F.2d 1235; U.S. v. King, 587 F.2d 956 at 963; U.S. v. Kurka, 818
F.2d 1427 at 1431.
A criminal defendant is entitled to a legally sufficient indictment. U.S. v. Napue, 843 F.2d 1311; U.S. v. Hinkle, 673 F.2d 1154 at 1157 which
must contain all language found in the charging part of the instrument. (emphasis added). U.S. v. Smith, 838 F.2d 436; U.S. v. Conlon, 661 F.2d 235 at
238; U.S. v. Hess, 124 U.S. 483 at 487; U.S. v. Rivera, 837 F.2d 906 at 918.
“in a criminal prosecution of one charged with the commission of a felony, the defendant has the absolute right to a jury determination upon
all essential elements of the offense” (emphasis added) U.S. v. England, 347 F.2d 425.
“It is necessary that the Government prove to the jury beyond a reasonable doubt every element of the offense charged.” (emphasis add) Christoffel
v. U.S. 338 U.S. 84, 89, 69 S. Ct. 1447, 93 L.Ed. 1826.
The failure of the indictment to allege a federal crime cannot be cured by any means. U.S. v. Spinner, 180 F. 3d 514 at 516; U.S. v. Tran. 234
F.3d 798 at 806.
Failure to include all essential elements in the indictment creates an insufficiency which is not cured by a mear citation of the law nor by a
charge to the jury. U.S. v. Hooker II, 841 F.2d 1225. The Hooker court also found that the failure to include all elements in the indictment is
“fatally defective and that the conviction thereon must be reversed.” id. at 1226.
Neither attorney objected strenuously to this fatal defect nor pointed out that 31 USC § 5324(a)(3) does not require defendant to fill out any
forms but only puts this requirement on the bank not the defendant.
This fatal defect in the Indictment deprived the court of jurisdiction to even try the case. The improper inclusion of these counts violated
Defendant’s Constitutional rights and prejudiced Defendant and greatly undermined the proper functioning of the adversarial process to the point
where the trial cannot be relied on as having produced a just result.
Ground Three. The Defendant was charged in count 58 of the Grand Jury Indictment with violation of title 26 USC § 7212(a) which involves attempts to
interfere with administration of Internal Revenue Laws by corrupt or forcible interference. The statute then refers to corruptly or by force or
threats of force as the essential elements. Seven of the overt acts listed in the Count 58 are outside the charging elements of the offense and
constitute overreaching and overcharging.