United States v. Sorensen

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 14, 2015
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1366
JEROLD R. SORENSEN,
Defendant - Appellant.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:13-CR-00477-RM-1)
_________________________________
Sean Connelly, Reilly Pozner, LLP, Denver, Colorado; (Ashley Blair Arnett and Michael
Louis Minns, Michael Louis Minns, PLC, Houston, Texas, with him on the briefs),
(Gary Lozow, Foster Graham Milstein & Calisher, LLP, Denver, Colorado, with him on
the briefs), for Defendant-Appellant.
James C. Murphy, Office of the United States Attorney, Denver, Colorado; (John F.
Walsh and Matthew T. Kirsch, Office of the United States Attorney, Denver, Colorado,
with him on the brief); for Plaintiff-Appellee.
_________________________________
Before PHILLIPS, BALDOCK, and EBEL, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
From 2002 to 2007, Jerold Sorensen, an oral surgeon in California, concealed his
income from the Internal Revenue Service (“IRS”) and underpaid his income taxes
by more than $1.5 million. He did so by using a “pure trust” scheme, peddled by
Financial Fortress Associates (“FFA”), an entity he found on the Internet. After
attending an FFA seminar and consulting with its representatives, he began
depositing his dental income into these trusts without reporting all of it to the IRS as
income. Over the years, he also retitled valuable assets in the trusts’ names. In 2013,
after a series of proffers, the government charged him with violating 26 U.S.C.
§ 7212(a) for corruptly endeavoring to obstruct and impede the due administration of
the internal-revenue laws. A jury convicted him of the charged offense.
On appeal, Sorensen raises seven arguments: (1) his conduct amounts to evading
taxes so it is exclusively punishable under 26 U.S.C. § 7201, and not under
§ 7212(a); (2) the district court erred by refusing his offered instruction requiring
knowledge of illegality; (3) the district court erred by giving the government’s
deliberate-ignorance instruction; (4) the district court erred by instructing the jury
that it could convict on any one means alleged in the indictment; (5) the district court
erred by refusing to allow him to provide certain testimony from a witness in
surrebuttal; (6) the prosecution misstated evidence in its closing rebuttal argument;
and (7) cumulative error. Exercising jurisdiction under 28 U.S.C. § 1291, we
conclude that none of Sorensen’s arguments merit relief. We affirm his conviction.
2
I. BACKGROUND
In 2000, Sorensen began looking for “a coherent sound business plan for [his] oral
surgery practice. . . .” Appellant’s App. vol. III at 585. He found FFA after online
research. FFA offered seminars advising attendees how to reduce or even eliminate
their tax liabilities using “Pure Trust Organizations” (“PTOs”). Under this system,
clients learned to create so-called PTOs and open bank accounts in the trusts’ names
to hold personal income and title to the clients’ assets. The clients could then deduct
the money and value of the assets on their tax returns, lowering their taxable income.
Sorensen did not know anyone else who used FFA’s programs. So in 2000, before
attending an FFA seminar, he called FFA official Ed Akehurst. Akehurst referred him
to FFA’s attorney, Melissa Sugar, a Denver attorney with a L.L.M. in tax law.
Sorensen and Sugar spoke by phone several times before he attended the seminar.
Sorensen testified that Sugar assured him that the program was legal. He also
testified that he was impressed with Sugar because of her education and her ability to
explain the program. Sugar never billed Sorensen for these calls.
In October 2000, Sorensen attended his first FFA seminar in Atlanta, Georgia. At
the seminar, he learned that FFA offered two different programs. The first was for
clients wishing to “drop out” of the tax system altogether, and the second was for
clients wishing to stay in the tax system but to limit their tax liabilities by using
FFA’s pure-trust program. Sorensen chose the latter. Several seminar speakers
explained different aspects of the program. One speaker presented a letter from the
IRS, supposedly supporting the pure-trust system. Sugar also spoke at the seminar,
3
explaining various banking aspects of the trusts. A third speaker, Akehurst, cautioned
that FFA clients should not use their Social Security numbers in connection with
their PTOs—supposedly to avoid identity fraud. Sorensen left the seminar impressed.
At trial, Special Agent Michelle Hagemann, a criminal investigator with the IRS,
explained how FFA’s PTO system worked. Using FFA’s services, its clients would
first establish trusts. They would then pay Sugar, or another FFA affiliate, to open a
bank account in the trusts’ name. In Sorensen’s case, he named the bank account
Northside Management. Although the bank account would, on paper, be in the name
of the trusts, the clients themselves had authorization to withdraw funds from the
bank account, meaning they could deposit or write checks from the account and use it
as they pleased. Clients would deposit money (such as earned income) into the trusts’
bank account and could then access the money at will.
FFA clients would also title and retitle personal assets, such as homes and
automobiles, in the trusts’ names. For example, Sorensen retitled his personal
residence, dental practice, and dental equipment—all of which he owned free and
clear of mortgages or debt—in the names of his trusts, and then had his dental
practice “pay” the trusts to “rent” his home, dental practice, and equipment. Using
this approach, he began depositing dental income directly into the Northside
Management bank account. After this, he would report these expenditures as
business-expense deductions1 on his personal tax returns, avoiding taxes on those
1
Denise Smith, a former employee for the IRS, testified that a business deduction
allows a taxpayer to reduce his taxable income, which in turn reduces taxes owed.
4
amounts. Although the deductions looked legitimate, the trusts were actually shell
entities.2 Taxpayers legally cannot take business-expense deductions for payments to
shell entities they control. See 26 U.S.C. § 183. This scheme enabled Sorensen to
avoid reporting his true income to the IRS. For example, for tax year 2002, Sorensen
reported $107,500 in income.
After attending the seminar, Sorensen paid FFA $9,000 to create six pure trusts:
OMS Management, OMS Tools, OMS Properties, Olmec Holdings, Olmec
Properties, and Olmec Enterprises.3 Sorensen hired Sugar to open and maintain the
Northside Management bank account, which was set up in the trusts’ names. She did
so on September 29, 2000. Soon afterward, Sorensen began depositing his dental
income into this account. Sorensen was the managing director of the trusts and
controlled them. Although the account showed activity from January 2002 to
September 2008, an IRS employee testified that the IRS has no record of any tax
returns ever being filed for any of the trusts.
Sorensen paid Sugar about $250 per year for her services, including administering
the Northside Management bank account and wiring money as needed. Because
Northside Management was a non-interest bearing checking account, the bank was
not required to report the account to the IRS. At trial, Sorensen testified that he
“didn’t pay attention to” his bank statements enough to know whether this account,
2
A shell entity is one that has been created for no legitimate business purpose and
is usually used for tax avoidance.
3
FFA created Olmec Enterprises to hold title to the automobiles. FFA created
OMS Tools to hold title to Sorensen’s dental practice equipment.
5
holding more than $1 million, was even accruing interest. Appellant’s App. vol. III at
691. Although non-interest bearing, the Northside Management account did have an
Employer Identification Number (“EIN”) associated with it, with Sugar listed as the
trustee. An employee of the IRS testified that the IRS had received an application
from Northside Management requesting an EIN, and that the application had a notice
obligating Northside Management to file a Form 1065 (partnership tax return). Even
so, Northside Management never filed a Form 1065—as shown by the IRS’s
Certificate of Lack of Record Form 3500.
Although Sugar was listed as the “Trustee” of the Northside Management
account, Sorensen had signatory authority over it as an “administrative assistant” to
Sugar. Regardless of his title, Sorensen controlled the account, and he signed all of
the checks written from the account.
By late 2001, Sorensen had transferred to the trusts the titles to valuable assets
that he owned debt-free. These included his California home, his dental building, and
his dental equipment. In addition to these asset transfers, from 2002 to 2007,
Sorensen deposited into the trusts hundreds of thousands of dollars of dental income.
Although Sorensen testified that he knew that using trust money from the Northside
Management account for personal use created tax consequences (meaning he had to
pay taxes on that money), he still did so without paying taxes. For instance, Sorensen
used that money to build and furnish a second personal residence in Utah valued at
well over a million dollars, to purchase automobiles, and to give gifts to family
6
members. At trial, he testified that the second home in Utah was an investment for
the trusts.
Soon after establishing the pure trusts, Sorensen approached his longtime
accountant and family friend, Rita Sharp, seeking assurances about FFA’s pure-trust
program. Sharp testified that she had difficulty understanding the program and that
Sorensen told her that an FFA-seminar speaker had said that most accountants would
not understand it. After reviewing the program, Sharp was so concerned that she did
some outside research, including indirectly reaching out to the IRS. After hearing
back, she reported to Sorensen that the IRS “considered [the pure trusts] a scheme.”
Appellant’s App. vol. II at 291–92. She informed Sorensen that if he continued to use
the PTO program, she would no longer prepare his tax returns. At trial, she testified
that “[t]he point that struck me as most obvious was the fact that we didn’t have to
get a Federal ID number to establish this trust.” Appellant’s App. vol. II at 288. She
explained to Sorensen that despite FFA’s direction, entities must always obtain one
for reporting purposes. In 2002, she prepared Sorensen’s tax returns one last time. In
this final return, she included a disclosure statement regarding the trusts.
After Sharp declined to provide Sorensen more services, Sorensen hired Wayne
Paul—an accountant FFA referred to him—to prepare his business tax returns.
Sorensen testified that he believed in Paul and thought he was a competent CPA
because FFA had referred him. He also felt that Paul had a national reputation,
apparently based on his being a brother to Ron Paul, a former Texas congressman.
Also beginning in 2003, Sorensen hired H&R Block to prepare his personal tax
7
returns. Sorensen testified that “the cost was certainly a factor” in using H&R Block
rather than Paul for his personal tax returns. R. vol. III at 641. He explained not
having told H&R Block about the high balance of Northside Management’s
account—in excess of a million dollars—because “it was not asked for.” Appellant’s
App. vol. II at 642.
At trial, Agent Hagemann testified that during a proffer session, Sorensen had told
her that from 2003–2004 he had diligently looked for “either an attorney or a CPA
that would validate” the pure-trust program, but he did not find anyone. Appellant’s
App. vol. IV at 890–91. He admitted ignoring this “red flag.” Appellant’s App. vol.
III at 700–01; Appellant’s App. vol. IV at 891, 893. He also admitted that he should
have had someone else review the program’s legality.
In 2004, Sorensen attended another FFA seminar in San Diego, California. At
trial, he testified that while at the seminar, he overheard Jim Gailey, an accountant
affiliated with FFA (he had been one of the speakers at the Atlanta seminar in 2001),
say that because FFA’s pure trusts do not require EINs, the IRS cannot track them.
Sorensen wrote down this information in his notebook, intending to explore it later,
but never did so. Sorensen acknowledged that he should have seen Gailey’s statement
as “another red flag.” Appellant’s App. vol. IV at 892.
In May 2007, IRS Special Agent Greg Flynn executed a federal search warrant at
Sugar’s law office. By August 2007, Sorensen knew about the search warrant but still
continued to use FFA’s PTO program. In one of his proffers with Agent Hagemann,
and confirmed during his testimony, Sorensen said that after learning about the
8
search, he questioned why he was still using the FFA program, and he wondered
“whether the same thing would happen” to him. Appellant’s App. vol. III at 704.
Agent Hagemann testified that Sorensen told her in the proffer meeting that “he was
in too deep, he couldn’t get out, and he didn’t want to pay the tax.” Appellant’s App.
vol. IV at 893.
Also in 2007, Sorensen first approached CPA Keith Wilcox, his son’s father-in-
law, to discuss his “situation” with the IRS. Wilcox testified that “[i]t was very
obvious to [him] that the purpose for the meeting was that [Sorensen] . . . wanted to
convince his wife that what they were doing and what was going on was completely
legal . . . .” Appellant’s App. vol. III at 732. After an extensive analysis, Wilcox
helped Sorensen prepare his amended tax returns. Wilcox testified that he told
Sorensen he believed the trusts were “a complete sham.” Appellant’s App. vol. III at
734. Although Wilcox prepared the amended returns, Sorensen ignored Wilcox’s
advice and did not file them for another two years, based, he said, on his personal
attorney’s advice.
In 2008, Agent Hagemann sent Sorensen a letter by certified mail notifying him
that he was the target of a criminal investigation. Sorensen refused to sign for the
letter. At trial, he explained that an FFA-seminar speaker had advised against
accepting certified mail from the IRS if a client did not know what the mail
contained. Later, when Agent Hagemann came to his office, he locked the doors and
refused her entrance. When he realized that Agent Hagemann was investigating him,
he followed FFA’s advice and sent her a public-servant’s questionnaire, requesting
9
personal information including her home address, birthday, and social security
number.
Sorensen’s defense theory was that he believed the PTOs were legal when he used
them. At trial and on appeal, he admits that the “payments” made to the PTOs were
not legitimate business deductions because their only purpose was to avoid paying
taxes. He also admits that neither the PTOs nor Northside Management ever filed a
tax return.
Sorensen also admits on appeal that between 2002 and 2007, he underpaid his
taxes by more than $1.5 million. For example, in 2000—before using the pure
trusts—Sorensen paid just over $210,856 in federal taxes. In 2002, after he began
using the pure trusts, he paid only $11,798 in federal taxes.
In November 2013, a federal grand jury sitting in Colorado indicted Sorensen,
charging him with violating the omnibus clause of 26 U.S.C. § 7212(a) by
“corrupt[ly] endeavor[ing] to obstruct or impede due administration of the Internal
Revenue laws . . . .”4 Appellant’s App. vol. I at 11. At trial, the primary issue was
whether the statute required knowledge of illegality and whether Sorensen had acted
with such knowledge. Sorensen testified that during the time charged in the
indictment, he had believed the PTOs were legal. The defense argued that Sorensen
was a gullible, naïve man, unaware that his conduct violated the law. In support,
Sorensen relied upon a forensic psychiatrist, Dr. Dana Cogan, M.D., who testified
4
In its indictment, the grand jury also charged Sorensen with obstruction of
justice, in violation of 18 U.S.C. § 1503. Before trial, the government dismissed this
second count.
10
that Sorensen was “law abiding,” “very naïve,” and easily manipulated by others.
Appellant’s App. vol. IV at 780–83, 802–04.
In 2014, the jury convicted Sorensen of corruptly endeavoring to obstruct or
impede the due administration of the internal-revenue laws, in violation of
§ 7212(a)’s omnibus clause. Although the advisory guideline range was 51 to 63
months, the statutory maximum was 36 months, which became the advisory range.
The district court varied downward, sentencing him to 18 months of imprisonment.
Sorensen timely appealed.
On appeal, Sorensen raises seven issues: (1) that his conduct amounts to evading
taxes and so is punishable under 26 U.S.C. § 7203, which, he says, thus precludes
prosecution for obstructing or impeding the tax laws under § 7212(a); (2) that the
district court erred by refusing to give a knowledge-of-illegality jury instruction; (3)
that the district court erred by giving a deliberate-ignorance instruction; (4) that the
district court erred by allowing the jury to convict on any one of the “means” charged
in the indictment; (5) that the district court erred by disallowing Sorensen from
presenting surrebuttal evidence; (6) that the prosecution’s closing rebuttal argument
misstated the evidence; and (7) that the errors taken cumulatively amount to
reversible error.
We conclude that none of Sorensen’s arguments have merit. For the following
reasons, we affirm the district court.
11
II. DISCUSSION
A. Availability of Charge Under 26 U.S.C. § 7212(a)
The jury convicted Sorensen under the “omnibus clause” of § 7212(a) for
“corruptly . . . endeavor[ing] to obstruct or impede, the due administration of this
title. . . .” 26 U.S.C. § 7212(a) (2012). Sorensen generally contends that, as a matter
of law, the government must prove something more than tax evasion for a conviction
under this statute.5 We review de novo questions of statutory interpretation. United
States v. Sturm, 672 F.3d 891, 897 (10th Cir. 2012).
To establish a violation of § 7212(a)’s omnibus clause, the government must
prove that the defendant “in any other way, corruptly . . . endeavors to obstruct or
impede, the due administration of [Title 26].”6 As noted in United States v.
Williamson, 746 F.3d 987, 992 (10th Cir. 2014), “the federal appellate courts have
agreed (although with some insignificant variations in language) on the definition of
corruptly . . . : ‘To act “corruptly” is to act with intent to gain an unlawful advantage
or benefit either for oneself or for another.’” (emphasis in original); see also United
States v. Winchell, 129 F.3d 1093, 1098 (10th Cir. 1997) (declaring that “to act
5
We note that the government does not assert that it proved tax evasion or that its
doing so would necessarily prove Sorensen corruptly endeavored to obstruct or
impede the due administration of the tax code. Thus, despite Sorensen’s general
contention, we have no reason in his case to decide whether evading taxes under
§ 7201 would sometimes or always satisfy § 7212(a)’s omnibus clause.
6
We agree with United States v. Popkin, 943 F.2d 1535, 1539 (11th Cir. 1991),
that the omnibus language “in any other way” “greatly expands the reach of the
statute,” meaning that “the prohibited act need not be an effort to intimidate or
impede an individual officer or employee.”
12
corruptly [under § 7212(a)] means to act with the intent to secure an unlawful benefit
either for oneself or another”). Here, the district court included this same language in
its instruction.
In addition, we have cited favorably other cases broadly interpreting § 7212(a)’s
omnibus clause. For instance, in United States v. Wood, 384 F. App’x 698 (10th Cir.
2010) (unpublished), we approved the Eleventh Circuit’s statement that “‘corruptly’
. . . prohibit[s] all activities that seek to thwart the efforts of government officers and
employees in executing the laws enacted by Congress.” Id. at 703 (quoting United
States v. Popkin, 943 F.2d 1535, 1540 (11th Cir. 1991)). Further emphasizing
§ 7212(a)’s broad scope, we concluded that “even legal actions violate § 7212(a) if
the defendant commits them to secure an unlawful benefit for himself or others.” Id.
(quoting United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997)).
Sorensen argues that the government improperly charged tax obstruction under
§ 7212(a) when its evidence instead showed tax evasion under § 7201. He contends
that when a taxpayer’s conduct results in evaded taxes, the government must charge
tax evasion under § 7201 and not obstructing or impeding the due administration of
the tax code under § 7212(a). He asserts that “obstruction requires something more
than simply tax evasion, false tax filings, and non-filings[,]” conduct specifically
proscribed at 26 U.S.C. §§ 7201 and 7203. Appellant’s Br. at 10; see 26 U.S.C.
§§ 7201, 7203, 7206 (2012). He claims that this court has “not had to set boundaries
between [tax] evasion and [tax] obstruction” and asks that we do so now. Appellant’s
Br. at 12.
13
The government rejects Sorensen’s proposition. Because Congress enacted separate
tax-crime statutes, the government has the “plenary power to choose which charge it will
bring.” Appellee’s Br. at 14. The Supreme Court “has long recognized that when an act
violates more than one criminal statute, the Government may prosecute[] under either
. . . .” United States v. Batchelder, 442 U.S. 114, 123–24 (1979); see also Ball v. United
States, 470 U.S. 856, 859 (1985) (recognizing “the Government’s broad discretion to
conduct criminal prosecutions, including its power to select the charges to be brought in a
particular case”); United States v. Beacon Brass Co., 344 U.S. 43, 45 (1952) (“At least
where different proof is required for each offense, a single act or transaction may violate
more than one criminal statute.”); Gavieres v. United States, 220 U.S. 338, 342 (1911)
(“A single act may be an offense against two statutes; and if each statute requires proof of
an additional fact which the other does not, an acquittal or conviction under either statute
does not exempt the defendant from prosecution and punishment under the other”)
(quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)). Based on this legal
principle, it follows that the government is free to charge tax obstruction even when the
underlying conduct includes (or may be argued to include) tax-evasive conduct.
We now turn to why tax evasion and tax obstruction are not identical crimes. In
Williamson, we rejected the argument that “corruptly” has the same meaning as
“willfully” as used to prove tax evasion under 26 U.S.C. § 7201—the “voluntary,
intentional violation of a known legal duty.” 746 F.3d at 991 (emphasis in original)
(quoting Cheek v. United States, 498 U.S. 192, 201 (1991)). Further, we noted that
14
Congress chose to use two different elements—corruptly versus willfully—to define
the separate mens-rea requirements in defining the separate tax crimes. Id. at 991–92.
In addition to these differences, it is also important to consider that the two
statutes provide different penalties. Willfully evading taxes is the more serious crime,
punishable by up to five years of imprisonment, while corruptly obstructing or
impeding the due administration of the tax laws is punishable by up to three years.
The difference in penalties suggests that a violation of § 7212(a) requires different
culpability and wrongdoing than a violation of § 7201.
In support of his argument that the government had no discretion to charge his
case under § 7212(a), Sorensen directs us to the Department of Justice’s evolving
commentary on charging decisions under § 7212(a). In U.S. Department of Justice
Tax Div., Criminal Tax Manual § 3.00, Tax Division Directive No. 129 (2004),7 the
Tax Division of the Department of Justice advised its personnel of its view about
when a charge under § 7212(a)’s omnibus clause would be “particularly appropriate”
(for “corrupt conduct that is intended to impede an IRS audit or investigation”) and
“[could] also be authorized” (for “large-scale obstructive conduct involving the tax
liability of third parties,” even occurring pre-audit or pre-investigation). It also
instructed that the charge “should not be used as a substitute for a charge directly
related to tax liability—such as tax evasion or filing a false tax return—if such a
charge is readily provable.” Id. If Sorensen is claiming that this agency directive
7
This superseded Directive No. 77 (1989), which set forth even more limiting
guidance for prosecutors desiring to seek charges under 26 U.S.C. § 7212(a)’s
omnibus provision.
15
somehow compels that we reverse his conviction, we disagree for at least two
reasons.
First, we will not second-guess the government’s view about what is “readily
provable” and what is not. We find it interesting that Sorensen apparently concedes that a
tax evasion conviction—even with its strict “willfully” mens-rea requirement—was
readily provable. But that decision properly belongs with the government.
Second, “criminal laws are for courts, not for the Government, to construe.” Abramski
v. United States, 134 S. Ct. 2259, 2274 (2014); see also United States v. Apel, 134 S. Ct.
1144, 1151 (2014) (“[W]e have never held that the Government’s reading of a criminal
statute is entitled to any deference.”). Moreover, “non-compliance with internal
departmental guidelines is not, of itself, a ground of which defendants can complain.”
United States v. Ivic, 700 F.2d 51, 64 (2d Cir. 1983) (citing United States v. Caceres, 440
U.S. 741 (1979)), abrogated on other grounds by Nat’l Org. for Women, Inc. v.
Scheidler, 510 U.S. 249 (1994).
In addition to the DOJ’s internal guidance, Sorensen relies on Wood, where we stated
that it “is a questionable proposition” whether failure to file tax returns constitutes a
“corrupt[] endeavor to obstruct and impede the due administration of the internal revenue
laws.” 384 F. App’x at 708. Although we need not decide that matter today, we still
adhere to that view. For starters, we note that failure to file tax returns under § 7203 is
punishable as a misdemeanor, while tax obstruction is punishable as a felony. Because of
this disparity, we agree with Wood’s hesitation to allow proof of a misdemeanor to prove
a felony. But this same concern does not apply to tax evasion, a felony even more
16
severely punished than obstructing or impeding due administration of the tax code. And
Sorensen’s case involves obstruction going beyond simply evading his taxes—for
instance, he used FFA’s pure trusts with no EIN, which prevented the IRS from tracking
them. This obstructed and impeded the IRS in duly administering the tax code.
Next, Sorensen contends that cases applying § 7212(a) to tax-evasion conduct have
“typically involve[d] conduct of tax professionals extending beyond a defendant’s own
returns.” Appellant’s Br. at 13. As a lead case, he cites United States v. Popkin, 943 F.2d
1535 (11th Cir. 1991). True enough, the defendant in that case was not the person directly
benefitting from impeding or obstructing the IRS from duly administering the tax laws.
Instead, he was a drug-dealer’s attorney who created an offshore corporation to help his
client repatriate drug proceeds and avoid paying taxes. Id. at 1536. While Sorensen
correctly points out that Popkin involved a perpetrator occupying a different position than
Sorensen’s, we see nothing in Popkin limiting the reach of § 7212(a)’s omnibus clause to
third parties helping impede or obstruct due administration of the tax laws. Rather than
focusing on who committed the crime, we conclude that the proper focus is on what
conduct sufficed to prove that someone had corruptly obstructed or impeded the due
administration of the tax laws. Popkin favors the government here, because the conduct—
setting up the offshore corporation to avoid taxes—is similar to Sorensen’s conduct in
setting up trusts and the Northside Management bank account. It would make little sense
to conclude that Sorensen’s helpers could violate § 7212(a), but he could not. Cf. United
States v. Melot, 732 F.3d 1234, 1237 (10th Cir. 2013) (listing the means of defendant’s
indictment for his § 7212(a) convictions as his opening bank accounts with false Social
17
Security numbers and EINs; depositing receipts from his businesses to bank accounts
titled in the names of nominees; depositing cash in amounts less than $10,000 to avoid
reporting requirements; titling property in the name of nominees; and maintaining a
foreign bank account); Wood, 384 F. App’x at 704–05 (affirming conviction under
§ 7212(a)’s omnibus clause for means specified in the indictment, including transferring
funds into offshore bank accounts from which to draw tax-free money, by way of
foreign-issued debit-cards for his clients’ friends and associates).
Sorensen next argues that we should limit § 7212(a)’s scope because our Circuit’s
cases under that section have all involved prosecutions for “prototypical acts of
obstruction.” Appellant’s Br. at 12 (citing Williamson, 746 F.3d at 989 (filing a
bogus “claim of lien against the [IRS] agents’ real and personal property”)); United
States v. Thompson, 518 F.3d 832, 855 (10th Cir. 2008) (presenting agent with “a
false, back-dated loan document” of pending IRS investigation); United States v.
Winchell, 129 F.3d 1093, 1094–99 (10th Cir. 1997) (sending threatening and
harassing notices and bills to IRS agents). By this, we understand Sorensen to be
arguing that it necessarily follows that § 7212(a)’s omnibus clause is so limited. We
reject this on the same basis that the Eleventh Circuit did in Popkin when addressing
a similar argument. There, the defendant argued that the court should limit the
omnibus clause to “claim[s] of the use of force or threats of force against an
individual agent or employee,” because “the government has never used § 7212(a) for
prosecutions in which there was not [such a claim].” 943 F.2d at 1539. The court
concluded that the government’s earlier choice of prosecutions “proves nothing . . . .”
18
Id. Instead, the court relied on the statute’s plain language to affirm the conviction.
Id. We agree with that approach. Even if the government had never prosecuted
someone in Sorensen’s position—and it did so in Melot and Wood—we still would
look to the statute’s plain language and conclude that Sorensen’s charge fits within
the omnibus clause.
B. Jury Instructions
Sorensen next challenges three of the district court’s jury instructions. First, he
contends the district court erroneously refused to give a knowledge-of-illegality
instruction. Second, he argues the court erroneously gave a deliberate-ignorance
instruction. And third, he argues the court erroneously gave an instruction that
allowed the jury to convict on any one of the “means” alleged in the indictment.
We review a district “court’s decision on whether to give a particular jury
instruction for abuse of discretion and view[] the instructions as a whole de novo to
determine whether they accurately informed the jury of the governing law.”
Williamson, 746 F.3d at 990 (quoting United States v. Villegas, 554 F.3d 894, 900
(10th Cir. 2009)). We look particularly at whether the jury, considering the
instructions as a whole, was misled. United States v. Smith, 13 F.3d 1421, 1424 (10th
Cir. 1994). “Only where the reviewing court has ‘substantial doubt that the jury was
fairly guided’ will the judgment be disturbed.” Id. (quoting United States v. Mullins,
4 F.3d 898, 900 (10th Cir. 1993)). After undertaking our review, we conclude that
none of Sorensen’s claims have merit.
19
i. Knowledge-of-illegality instruction
First, Sorensen challenges the district court’s instruction on § 7212(a) because he
claims it did not inform the jury that he could be guilty only if he intentionally
violated a known legal duty. The district court’s instructions set forth the following
elements of the offense:
First: The defendant in any way corruptly;
Second: Endeavored to;
Third: Obstruct or impede the due administration of the internal revenue
laws.
“Endeavor” means to knowingly and intentionally make any effort which
has a reasonable tendency to bring about the desired result. It is not
necessary for the government to prove that the “endeavor” was successful.
To act “corruptly” is to act knowingly and dishonestly, with the specific
intent to gain an unlawful advantage or benefit either for oneself or for
another by subverting or undermining the due administration of the internal
revenue laws.
To “obstruct or impede” is to hinder or prevent from progress; to slow or
stop progress; or to make accomplishment difficult and slow.
The phrase “due administration of the internal revenue laws” means the
Internal Revenue Service of the Department of the Treasury carrying out its
lawful functions to ascertain income; compute, assess, and collect income
taxes; audit tax returns and records; and investigate possible criminal
violations of the internal revenue laws.
Appellant’s App. vol. I at 100. The court refused Sorensen’s proffered instruction that
“[t]he Defendant must have known the advantage or benefit sought was unlawful.” R.
vol. I at 76; R. vol. IV at 949–50. At trial, Sorensen’s counsel objected to the omission.
On appeal, Sorensen contends that the jury was not instructed on the proper mens rea
20
element. He asserts that the district court should have instructed the jury that knowledge
of illegality is required.
We review de novo the question of whether a district court incorrectly instructed a
jury on the law. United States v. Porter, 745 F.3d 1035, 1040 (10th Cir. 2014). “When we
review a claim of error relating to jury instructions, we read and evaluate the instructions
in light of the entire record to determine if they ‘fairly, adequately and correctly state the
governing law and provide the jury with an ample understanding of the applicable
principles of law and factual issues confronting them.’” Coletti v. Cudd Pressure Control,
165 F.3d 767, 771 (10th Cir. 1999) (quoting United States v. Barrera–Gonzales, 952 F.2d
1269, 1272 (10th Cir. 1992)). Even when the district court fails to include an element of
the crime in the instruction (including a mens rea element), we still apply the harmless
error rule, asking “whether it appears ‘beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’” Neder v. United States, 527
U.S. 1, 15 (1999) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)); see also
United States v. Sierra-Ledesma, 645 F.3d 1213, 1217 (10th Cir. 2011).
In support of his argument, Sorensen relies on Williamson. In Williamson, decided
under the plain-error standard, we left “to another day whether a conviction under
§ 7212(a) requires that the defendant knew that the advantage or benefit he sought was
unlawful and, if so, whether the instruction here would adequately inform a jury of that
requirement.” 746 F.3d at 992. The instruction in Williamson included some of the same
language as Sorensen’s instruction: “To act ‘corruptly’ is to act with the intent to gain an
unlawful advantage or benefit either for oneself or for another.” Id. at 990 (alterations in
21
original). And Williamson made the same argument as Sorensen: that the instruction was
flawed because it did not instruct the jury that it must find that he knew that the
advantage or benefit was unlawful. Reviewing for plain error, we concluded that
Williamson did not meet the second prong of review—that the error was plain. Id. at
992–93. We explained that Williamson had not cited any decision (much less one from
this court or the Supreme Court) holding that this instruction, as written, would not
already require knowledge of illegality. Id. In light of his failure to demonstrate the
alleged error was plain, we declined to decide this question. Id. at 992.
Thus, Sorensen is correct that the Williamson court declined to decide whether this
quoted definition of “corruptly” already requires knowledge of illegality. But as in
Williamson, we need not decide that question. Here, in language beyond that given to the
jury in Williamson, the district court instructed the jury that to act corruptly, the
defendant must have acted “knowingly and dishonestly, with the specific intent to gain an
unlawful advantage or benefit either for oneself or for another by subverting or
undermining the due administration of the internal revenue laws.”8 Appellant’s App. vol.
I at 100 (emphasis added). Other circuits have concluded that this instruction—with
8
Interestingly, the Second Circuit addressed the Williamson question in United States
v. Kelly, 147 F.3d 172, 176 (2d Cir. 1998). In Kelly, the district court had provided the
same jury instruction on § 7212(a) as given in Williamson. Id. at 176–77. The court found
that the “district court’s definition of the proof required for the section 7212(a) violation
was as comprehensive and accurate as if the word ‘willfully’ was incorporated in the
statute.” Id. at 177. Thus, at least one circuit has concluded that the same instruction
given in Williamson—even not supplemented with the “knowingly and dishonestly”
language given in Sorensen’s case—is sufficient to require knowledge of illegality.
22
“knowingly and dishonestly” added—requires proof that the defendant knew his actions
were unlawful. See United States v. Dean, 487 F.3d 840, 853 (11th Cir. 2007); United
States v. Saldana, 427 F.3d 298, 303 (5th Cir. 2005).
Considering the “knowingly and dishonestly” language in Sorensen’s jury instruction,
we cannot perceive how the jury could have convicted him without finding that he knew
that his actions were illegal. How could one act knowingly and dishonestly, with the
specific intent to gain an unlawful advantage, without knowing that the advantage is
unlawful? By requiring Sorensen’s acts be done “knowingly and dishonestly,” the district
court had already required proof of knowledge of illegality.
The district court’s instruction on good faith also supports our conclusion. The
instruction states that:
Dr. Sorensen submits that his actions surrounding the use of the FFA
pure trust program were not corrupt as he was acting in good faith.
A defendant does not act corruptly if he believes in good faith that he is
acting within the law, or that his actions comply with the law. A person acts
in good faith when he acts in accordance with an honestly held belief,
opinion or understanding, even though the belief, opinion or understanding
is inaccurate or incorrect.
...
The burden of proof is not on the defendant to prove good faith as a
defendant has no burden to prove anything. However, you may consider the
reasonableness of the defendant’s belief together with all the other evidence
in the case in determining whether the defendant held the belief in good
faith. As I have already instructed you, the government must prove beyond
a reasonable doubt that the defendant acted corruptly.
Appellant’s App. vol. I at 104–05.
When reviewing jury instructions as a whole, we must look at whether the jury was
misled. Smith, 13 F.3d at 1424. Because the jury did not acquit, we know it found that
23
Sorensen did not in good faith believe he was acting within or complying with the law
(the entire basis of his defense at trial). Therefore, any argument he now makes that he
reasonably believed he was acting within the law—e.g., his reliance on Sugar, Paul, or
the IRS letter—runs counter to the jury’s decision. The jury’s rejection of Sorensen’s
good-faith defense is entirely consistent with a finding that he knew his conduct was
illegal—or even that he sheltered himself from this knowledge by deliberate ignorance.
Moreover, the last sentence of the instruction reminding the jury that the government
must prove that Sorensen acted corruptly tied right back to the district court’s instruction
defining “corruptly”—“to act knowingly and dishonestly, with the specific intent to gain
an unlawful advantage or benefit either for oneself or for another by subverting or
undermining the due administration of the internal revenue laws.” Appellant’s App. vol. I
at 100.
Finally, Sorensen suggests that the government can only charge tax obstruction under
§ 7212(a) when the defendant knows of a pending IRS investigation or audit. He relies on
United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998), in which the Sixth Circuit
concluded that “due administration of the Title [under § 7212(a)] requires some pending
IRS action of which the defendant was aware.” Id. at 957. The Sixth Circuit compared the
language of § 7212(a) to the facially similar language in the obstruction-of-justice statute,
18 U.S.C. § 1503(a), and found them sufficiently similar to apply the Supreme Court’s
reasoning in United States v. Aguilar, 515 U.S. 593, 599 (1995), to both. Id. at 956–57.
Aguilar concerned the obstruction-of-justice statute, and construed the following
statutory language:
24
Whoever corruptly, or by threats or force, or by any threatening letter or
communication, endeavors to influence, intimidate, or impede any grand or
petit juror, or officer in or of any court of the United States, or officer who
may be serving at any examination or other proceeding before any United
States magistrate judge or other committing magistrate, in the discharge of
his duty, or injures any such grand or petit juror in his person or property on
account of any verdict or indictment assented to by him, or on account of
his being or having been such juror, or injures any such officer, magistrate
judge, or other committing magistrate in his person or property on account
of the performance of his official duties, or corruptly or by threats or force,
or by any threatening letter or communication, influences, obstructs, or
impedes, or endeavors to influence, obstruct, or impede, the due
administration of justice, shall be punished as provided in subsection (b).
18 U.S.C. § 1503(a) (emphasis added). In comparison, § 7212(a) states:
Whoever corruptly or by force or threats of force (including any threatening
letter or communication) endeavors to intimidate or impede any officer or
employee of the United States acting in an official capacity under this title,
or in any other way corruptly or by force or threats of force (including any
threatening letter or communication) obstructs or impedes, or endeavors to
obstruct or impede, the due administration of this title, shall, upon
conviction thereof, be fined not more than $5,000, or imprisoned not more
than 3 years, or both, except that if the offense is committed only by threats
of force, the person convicted thereof shall be fined not more than $3,000,
or imprisoned not more than 1 year, or both. The term “threats of force”, as
used in this subsection, means threats of bodily harm to the officer or
employee of the United States or to a member of his family.
(emphasis added). In Aguilar, the Supreme Court held that obstruction of justice requires
a defendant’s knowledge of a pending proceeding. 515 U.S. at 599. Sorensen argues that
we should follow Kassouf.9
9
The Sixth Circuit limited Kassouf to “its precise holding and facts” in United
States v. Bowman, 173 F.3d 595, 600 (6th Cir. 1999). The court upheld a § 7212(a)
conviction for a defendant who had no knowledge of a pending IRS action. Id. at 600.
But more recently in United States v. Miner, 774 F.3d 336, 345 (6th Cir. 2014), the
Sixth Circuit affirmatively held that “a defendant may not be convicted under the
omnibus clause unless he is ‘acting in response to some pending IRS action of which
25
In Wood, 384 F. App’x at 703–04, we expressed skepticism of the Sixth Circuit’s
approach. After examining the two provisions, we found that the obstruction-of-justice
statute that the Sixth Circuit had relied on is “substantially different than § 7212(a).” Id.
at 704. While obstruction of justice deals with “specific prohibitions of conduct that
interferes with actual judicial proceedings[,]” a defendant can violate § 7212(a) without
an “awareness of a particular action or investigation, for example, by thwarting the
annual reporting of income.” Id.
We agree with Wood and disagree with Kassouf. We do not think the two statutes are
sufficiently similar to apply Aguilar’s reasoning to § 7212(a). Because § 1503(a) requires
that a defendant must corruptly endeavor to influence, intimidate, or impede any juror,
officer of the court, or magistrate judge in court-related duties, it inherently requires that
the obstructive conduct take place during an ongoing proceeding. In contrast, § 7212(a)
does not require an ongoing proceeding when a defendant “corruptly . . . endeavor[s] to
obstruct or impede the due administration of” the tax laws. See United States v. Floyd,
740 F.3d 22, 31–32 & n.4 (1st Cir. 2014) (concluding that “[a] conviction for violation of
section 7212(a) does not require proof of . . . an ongoing audit,” citing Wood approvingly,
and declaring that Kassouf was not good law). In many instances, the IRS does duly
administer the tax laws even before initiating a proceeding.
We believe that the jury instruction defining “due administration of the internal
revenue laws” further supports our view. Illustrating how the IRS duly administers the
[he is] aware.’” Id. at 345 (quoting United States v. McBride, 362 F.3d 360, 372 (6th
Cir. 2004)).
26
internal-revenue laws, it includes the IRS’s “carrying out its lawful functions to ascertain
income; compute, assess, and collect income taxes. . . .” Appellant’s App. vol. I at 100. In
its computing taxes owed, for instance, the IRS need not open a proceeding. We note that
Sorensen did not object to the instruction defining “due administration of the internal
revenue laws” and that he has not contended on appeal that giving the instruction was
plain error.
ii. Deliberate-ignorance instruction
Next, Sorensen challenges the district court’s giving a deliberate-ignorance
instruction. The district court instructed the jury that “knowledge can be inferred if the
defendant deliberately blinded himself to the existence of a fact. Knowledge can be
inferred if the defendant was aware of a high probability of the existence of the fact in
question, unless the defendant did not actually believe the fact in question.” Appellant’s
App. vol. I at 102. When a defendant challenges a district court’s instructing a jury on
deliberate-ignorance, we review de novo. United States v. de Francisco-Lopez, 939 F.2d
1405, 1409 (10th Cir. 1991); see also United States v. Anaya, 727 F.3d 1043, 1060 (10th
Cir. 2013).10
10
The government concedes that this court applies a de novo standard to the
district court’s giving of a deliberate-ignorance jury instruction. But it contends that
de novo review is inappropriate, noting that this approach is inconsistent with our
general practice of reviewing a court’s decision to give a particular instruction for
abuse of discretion. See United States v. Soussi, 316 F.3d 1095, 1106 (10th Cir. 2002)
(noting that de novo review of the propriety of deliberate-ignorance instructions is
inconsistent with our regular practice of reviewing a court’s decision to give a
particular instruction for abuse of discretion). The government thus asks us to review
for abuse of discretion. It submits United States v. Heredia, 483 F.3d 913 (9th Cir.
2007) (en banc), where the Ninth Circuit overruled the de novo review standard it
27
In United States v. Baz, 442 F.3d 1269, 1271 (10th Cir. 2006), we held that a
deliberate-ignorance instruction is appropriate where a defendant “denies knowledge of
an operant fact but the evidence, direct or circumstantial, shows that defendant engaged
in deliberate acts to avoid actual knowledge of that operant fact.” Id. at 1271–72. A
deliberate-ignorance instruction is appropriate upon two showings: “(1) the defendant
must subjectively believe that there is a high probability that a fact exists and (2) the
defendant must take deliberate actions to avoid learning of that fact.” Global-Tech
Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070 (2011). Sorensen defended the charge
by denying that he knew FFA’s pure-trust program was illegal, and particularly that he
knew that the IRS considers them illegal. Thus, we must determine whether this case is
an appropriate one for the district court to have given a deliberate-ignorance instruction.
The district court noted that the instruction is generally “not favored,” Appellant’s
App. vol. IV at 950, but found it appropriate in this case because of the evidence showing
that Sorensen had been told early-on that the IRS considered pure-trust programs like
FFA’s to be a scheme, and knew of other “red-flags” suggesting illegality. Appellant’s
App. vol. IV at 950.
Sorensen argues that the instruction was unwarranted because he did not deny
knowledge of any fact—he only denied criminal intent. “[W]here the trial court refused
to instruct on knowledge of illegality, there was no disputed knowledge element to which
used when determining the propriety of deliberate-ignorance instructions and
replaced it with an abuse-of-discretion standard. Id. at 922. Because our Circuit
currently applies de novo review, we will continue to apply it unless we decide
otherwise after an en banc hearing.
28
the deliberate ignorance instruction could attach.” Appellant’s Br. at 22. Therefore, he
contends, giving the instruction was erroneous.
The government describes Sorensen’s argument as mere semantics when he argues
that the knowledge in question must be of an “operative fact.” Appellee’s Br. at 23. It
submits United States v. Santos, 553 U.S. 507, 521 (2008), where the Supreme Court
approved a willful-blindness instruction in a money laundering case to establish
“knowledge that the transaction involves profits of unlawful activity[.]” 533 U.S. at 521.
Similarly here, we think the instruction assisted the jury in determining whether the
government had proved Sorensen’s knowledge of facts bearing on the pure trusts’
illegality. See United States v. Hilliard, 31 F.3d 1509, 1515 (10th Cir. 1994) (referencing
a regulatory board’s position on the legality of defendant’s actions as one of the facts the
deliberate-ignorance instruction could reach). Moreover, Sorensen himself admits that
courts have upheld a deliberate-ignorance instruction in other tax-crime cases in which
knowledge of illegality was required. See United States v. Stadtmauer, 620 F.3d 238,
254–57 (3d Cir. 2010) (rejecting defense argument that such an instruction was contrary
to Cheek).
Sorensen’s argument is also refuted by United States v. Fingado, 934 F.2d 1163 (10th
Cir. 1991), where we upheld a deliberate-ignorance instruction when a defendant “was
aware of a high probability that his understanding of the tax laws was erroneous and
consciously avoided obtaining actual knowledge of his obligations.” Id. at 1166.
Similarly in this case, the government provided considerable evidence that Sorensen had
at least attempted to remain deliberately ignorant of the pure trusts’ illegality: (1) early
29
on, Rita Sharp warned Sorensen that the IRS considered pure-trust programs like the
FFA’s to be a scheme, which Sorensen admitted was a red flag; (2) Sorensen admitted
that, before becoming involved with FFA, he had never sought the advice of CPAs or
attorneys unaffiliated with FFA; (3) although Sorensen had Wayne Paul prepare his
business tax returns, he had H&R Block prepare his personal tax returns; (4) Sorensen
testified that he never told H&R Block about the balance exceeding $1 million in the
Northside Management bank account because “it just never came up”; (5) Sorensen
refused to accept a certified letter from the IRS, on FFA’s advice; and (6) despite
concerns about the federal search warrant executed at Sugar’s office, Sorensen continued
to use FFA because by then, he said, “he was in too deep, he couldn’t get out, and he
didn’t want to pay the tax.” Appellant’s App. vol. III at 687–88, 893. When considered as
a whole, there is ample evidence to support the notion that Sorensen deliberately avoided
learning that the IRS deemed the pure trusts illegal.
Sorensen tries to distinguish his case from Fingado, claiming instead the facts of his
case are more analogous to Hilliard, 31 F.3d at 1510–14. In Hilliard, we reversed a jury’s
conviction after concluding that the deliberate-ignorance instruction was inappropriate in
a situation where the facts “involv[ed] somewhat complicated financial transactions
combined with professional legal and accounting advice of varying quality, some of
which was heeded, and some of which was not.” Id. at 1516. The defendant in Hilliard,
the director and president of National Savings Bancorporation of Colorado, was
convicted of misapplication of funds, which rested in part on a series of deferred tax
transactions he made. Id. at 1510, 1513. As part of our explanation for why the
30
deliberate-ignorance instruction was inappropriate in this case, we stated that the
defendant never denied actual knowledge of the Federal Home Loan Bank Board’s
position that these transactions violated the applicable statute. Id. at 1515. Rather, we
explained that the defendant questioned the Board’s position based on (1) his own prior
experience, (2) a discussion he had with regulatory counsel at the bank, and (3) an
opinion letter from the bank’s regulatory firm. Id.
In contrast, Sorensen rests his entire defense on his lack of knowledge regarding the
illegality of the pure trusts. He never claims to have discussed the trusts’ legal status with
anyone at the IRS or even consulted the IRS website. While he contends that he received
professional advice that his actions were legal—from Sugar and Paul—his circumstance
is different from Hilliard’s because all of his advice came (directly or indirectly) from
those selling him the illegal product (FFA). And this was due to Sorensen’s own,
knowing choice. Therefore, we see significant differences between Sorensen’s case and
Hilliard, and conclude that his case fits more closely under Fingado.
In conclusion, we think the evidence is more than sufficient to support the deliberate-
ignorance instruction. A deliberate-ignorance instruction is appropriate where the
defendant “purposely contrived to avoid learning all of the facts in order to have a
defense in the event of a subsequent prosecution.” United States v. Soussi, 316 F.3d 1095,
1106 (10th Cir. 2002). Here, Sorensen’s actions went beyond merely “heeding the wrong
advice,” as he portrays it. Appellant’s Br. at 24. The government put forth more than
enough evidence to allow the judge to instruct the jury on deliberate ignorance.
31
Therefore, we conclude that the district court did not err in giving the deliberate-
ignorance instruction.
iii. Conviction by any one means
Third, Sorensen challenges the jury instruction that allowed the jury to convict
Sorensen based on any one of the “means” alleged in the indictment. The language of the
instruction read:
Your verdict must represent the collective judgment of the jury. In order
to return a verdict, it is necessary that each juror agree to it. Your verdict, in
other words, must be unanimous.
In this regard, the indictment alleges that the defendant endeavored to
obstruct or impede the due administration of the Internal Revenue laws
through a variety of different means. The government does not have to
prove all of these different means for you to return a guilty verdict. But in
order to return a guilty verdict, all twelve of you must agree upon one or
more listed means, which you find constituted a corrupt endeavor to
obstruct or impede the due administration of the Internal Revenue laws.
Appellant’s App. vol. I at 106. Because neither party had requested a unanimity
instruction, the district court created one sua sponte since it thought such an instruction
“was appropriate.” Appellant’s App. vol. IV at 940. Upon the court’s presenting of its
first draft of the instruction, Sorensen’s counsel objected to it on two grounds: (1) it
allowed the jury to convict upon agreeing on any one of the means, not specifying
which,11 and (2) it did not require that the jury unanimously find all of the indictment’s
11
Other than reserving its motion for judgment of acquittal, Sorensen did not
object to the verdict form, which did not ask the jury to specify which of the listed
means it had unanimously agreed upon.
32
listed means.12 The government did not object to the instruction, saying it had assumed
the defense would “want some sort of unanimity” and that “the Defense would want it
[the instruction].” Appellant’s App. vol. IV at 942.
Upon later revisiting the unanimity instruction, the district court declared that the
instruction was “needed, and not doing it—not giving some instruction in this vein gets
us into the realm of plain error, invited error, waiver, and other things about appellate
issues that I’m not going to go down.” Appellant’s App. vol. IV at 951. As a “tweak” to
the instruction, the district court added language to ensure that the jury’s unanimously
finding a listed means did not end its inquiry—that it still must independently find that
the listed means “constitute[d] an endeavor to obstruct. . . .” Id. at 952, 1038. In response,
Sorensen’s counsel directed the court to the Tenth Circuit’s Pattern Jury Instruction
§ 1.24, at 39 (2011), pointing out that it and the case law made it “very clear
. . . that unanimity is not an appropriate concept when you are talking about the means of
committing the crime.” Id. at 954. The district court stuck with its proposed instruction,
explaining that “I think the cases that are cited, as I said, use the word ‘means’ in a
slightly different way.” Id.
We see Sorensen making two different arguments in his challenge to the instruction.
First, he argues that the district court erred by giving the instruction at all. Second, in a
more particular objection, Sorensen argues that the district court erred by allowing the
jury to convict after unanimously agreeing on the fifth or sixth means listed in the
12
Although Sorensen made this argument before the district court, he does not
raise it on appeal, so we do not address it.
33
indictment—underreporting income or failing to file tax returns—because that conduct,
by itself, is legally insufficient to fulfill all of § 7212(a)’s requirements.
a. Erroneous Instruction
Sorensen argues that the district court erred in even giving the unanimity instruction
on “means.” On this ground, he filed a written objection in the district court, asserting
that the “instruction should not be given.” Appellant’s App. vol. I at 75. Thus, he has
preserved this argument for appeal. “When reviewing claims of error in regard to jury
instructions, we review the instructions as a whole de novo to ensure that the applicable
law was correctly stated and review for an abuse of discretion a trial court’s refusal to
give an instruction as specifically requested by a party.” United States v. Allen, 603 F.3d
1202, 1213 (10th Cir. 2010) (citing United States v. McClatchey, 217 F.3d 823, 834 (10th
Cir.2000)). We will reverse “only in those cases where [we have] a substantial doubt
whether the jury was fairly guided in its deliberations.” Martinez v. Caterpillar, Inc., 572
F.3d 1129, 1132 (10th Cir. 2009).
As mentioned, neither party requested a unanimity instruction—the court provided
one sua sponte. To create the instruction, the district court borrowed from the unanimity
pattern jury instruction on “Unanimity of Theory.” The actual pattern jury instruction
reads:
Your verdict must be unanimous. Count _________ of the
indictment accuses the defendant of committing the following acts:
[description of individual acts].
The government does not have to prove all of these different acts
for you to return a guilty verdict on count __________.
But in order to return a guilty verdict, all twelve of you must
agree upon which of the listed acts, if any, the defendant committed and
34
that he committed at least [number of acts identified above] of the acts
listed.
Tenth Circuit Criminal Pattern Jury Instructions § 1.24 at 39 (2011) (emphasis
added). The instruction’s Use Note explains that it is intended to be given when “the
government introduces evidence that the defendant has committed multiple acts
which may constitute an element of the crime.” Tenth Circuit Criminal Pattern Jury
Instructions § 1.24 Use Note, at 39 (2011). To illustrate the “acts” described, the use
note refers to predicate felonies required to prove a continuing criminal enterprise
under 21 U.S.C. § 848. Id. (citing Richardson v. United States, 526 U.S. 813, 817–18
(1999)). In Richardson, the Court held that a jury must “agree unanimously about
which specific violations make up the ‘continuing series of violations’” required
under § 848. 526 U.S. at 815. It rejected the jury instruction that had allowed a
conviction if the jury unanimously agreed that the defendant had committed at least
three federal narcotics offenses but did not agree which three. Id. at 816.
Sorensen’s charge is far different from Richardson’s, and § 1.24 of our pattern
jury instructions does not apply to his case. Perhaps recognizing this, the district
court modified it by replacing the pattern instruction’s “acts” with “means”:
In this regard, the indictment alleges that the defendant endeavored to
obstruct or impede the due administration of the Internal Revenue laws
through a variety of different means. The government does not have to
prove all of these different means for you to return a guilty verdict. But
in order to return a guilty verdict, all twelve of you must agree upon one
or more listed means, which you find constituted a corrupt endeavor to
obstruct or impede the due administration of the Internal Revenue laws.
35
Appellant’s App. vol. I at 106 (emphasis added). By modifying the instruction’s
language in this way, the court took the novel course of requiring the jury’s
unanimity on at least one means listed in the indictment. Although the district court’s
instruction kept the pattern instruction’s general structure, it overlaid it with a
different legal question. No longer anchored in Richardson’s holding, the modified
instruction carried no cited support for its legal rule.13 By requiring unanimity on a
“listed” means, the instruction also ignored the indictment’s language charging that
Sorensen violated § 7212(a) “by the following means, among others . . . .”
Appellant’s App. vol. IV at 1031 (emphasis added). We are not at all convinced the
government was required to do so.
Thus, we agree with Sorensen that the district court erred in giving the instruction.
But we agree with the government that it helped him and did not prejudice him.
Absent the instruction, the jury could have convicted without unanimously agreeing
on any of the listed means. As such, the instruction effectively increased the
government’s burden in proving its case. While we disapprove of the instruction, we
do not see how it harmed Sorensen.
b. The Fifth and Sixth Means—Underreporting Income and Failure to File Tax Returns
Before us, Sorensen narrows his argument to say that the district court erred in giving
the instruction because it allowed the jury to convict him by agreeing on insufficient
13
For comparison, we note that § 2.87 of the Tenth Circuit’s pattern jury
instructions pertains to drug-conspiracy charges and provides that “[t]he evidence in
the case need not establish that all the means and methods set forth in the indictment
were agreed upon to carry out the alleged conspiracy.”
36
means, the indictment’s fifth and sixth listed ones: underreporting his income and failing
to file tax forms for Northside Management or tax returns for his pure trusts. As
previously discussed, Sorensen contends that the conduct in these means is legally
insufficient to satisfy § 7212(a)’s requirements. After carefully reviewing the record, we
conclude that Sorensen failed to object in the district court to the instruction on these
bases. In his brief, Sorensen points to his counsel’s written objection to giving the
instruction at all and cites to Pattern Jury Instruction § 1.24 and its Use Note. But that
objection does not make this particular argument.
Thus, we review for plain error. See United States v. Fabiano, 169 F.3d 1299, 1301–
03 (10th Cir. 1999). To establish plain error, Sorensen bears the burden of showing: (1)
error, (2) that is plain, (3) that affects his substantial rights, and (4) would seriously affect
the fairness, integrity, or reputation of the proceedings. Id. (citing Johnson v. United
States, 520 U.S. 461, 466–67 (1997) and United States v. Olano, 507 U.S. 725, 732
(1993)).
Sorensen asserts that the district court erred under Yates v. United States, 354 U.S.
298 (1957),14 in which the Supreme Court held—reviewing de novo, unlike here—that a
verdict must be vacated where it is supportable on one ground, but not on another, and it
is impossible to tell which ground the jury relied upon to convict. Wood, 384 F. App’x at
709 (citing Yates, 354 U.S. at 312). According to Sorensen, because the indictment’s fifth
and sixth listed means—underreporting income and not filing taxes—could not, as a
14
Overruled in part on other grounds by Burks v. United States, 437 U.S. 1, 8
(1978).
37
matter of law, support a § 7212(a) obstruction conviction, the court’s instructing the jury
that these means could support such a conviction was reversible error.15
For purposes of argument, we will assume but not conclude that Sorensen can satisfy
the first and second prongs of the plain-error standard. See Wood, 384 F. App’x at 708
(concluding that Wood had made a “plausible argument for the first two components of
plain error review” for an instruction “allow[ing] the jury to find that [his] failure to file
income tax returns” could suffice to violate § 7212(a)’s requirements). Even so, as in
Wood, we conclude that Sorensen cannot establish plain-error’s third prong.
“Satisfying the third prong of plain-error review—that the error affects substantial
rights—usually means that the error must have affected the outcome of the district court
proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005)
(quoting United States v. Cotton, 535 U.S. 625, 632 (2002)). In other words, Sorensen
bears the burden of proving that there is “a reasonable probability that, but for [the error
claimed], the result of the proceeding would have been different.” United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004) (alteration in original). Thus, on plain error
review, “the Yates impossible-to-tell-warrants-reversal standard does not apply.” Wood,
384 F. App’x at 709. Instead, we apply the substantial-rights test and consider the
15
In our view, this substantially overstates the effect of the district court’s
unanimity instruction. Contrary to Sorensen’s suggestion, it does not say that upon a
jury’s unanimously agreeing that the government had proved a listed means it must
find him guilty of violating § 7212(a). Instead, it sets that as one condition of
conviction. As revealed by reading the rest of the instructions, the jury still had to
find each of the actual § 7212(a) elements beyond a reasonable doubt. Nothing about
the unanimity instruction changed that.
38
strength of the government’s case. Id. (citing United States v. Draper, 553 F.3d 174, 182
(2d Cir. 2009)).
Here, we are comfortable that the outcome of the trial would have remained the same
even without the jury instruction and the fifth and sixth listed means of the indictment.
The government presented strong evidence supporting the other four listed means16: (1)
Sorensen created, with FFA’s assistance, a number of pure trusts that were “used as
vehicles to help disguise Sorensen’s” income and assets; (2) he worked with and paid
Sugar to create and maintain the Northside Management account to hold the money in the
name of his pure trusts, and he purposely opened it without connecting his Social
Security number to it; (3) he set up the Northside Management account with himself as
the administrative assistant and Sugar as the trustee, paying Sugar to make bank
transactions for Northside Management on his behalf; and (4) he acted as if the pure
trusts “owned assets that he actually controlled, including his personal residence, his cars,
the building where he conducted his dental practice, and the equipment used by that
practice” and deposited dental income in the trusts to create the appearance that the
payments were legitimate deductions, thereby reducing his taxable income. Appellant’s
App. vol. IV at 1031–33. Additionally, the government never suggested that the jury
should convict Sorensen based on underreporting income or failing to file his tax returns
by themselves. Cf. Wood, 384 F. App’x at 710 (finding no substantial prejudice when
16
By using this language, we do not intend to announce a requirement that the
government must prove a single means. That issue was not briefed, so we decline to
reach it now.
39
“there is no indication that the prosecution described Mr. Wood’s failure to file as an
essential component of the § 7212(a) charge”).
iv. Cumulative effect
Sorensen asks that if we do not find that any one of the instructions requires reversal
on its own, that we reverse his conviction based on the cumulative effect of all the
erroneous instructions. Because the one error in the jury instructions favored him (that the
district court should not have given a unanimity instruction), we cannot find cumulative
effect.
C. Surrebuttal Evidence
Sorensen argues that the district court erred by refusing to allow him surrebuttal
testimony. Surrebuttal evidence is “merited where (1) the government’s rebuttal
testimony raises a new issue, which broadens the scope of the government’s case, and (2)
the defense’s proffered surrebuttal testimony is not tangential, but capable of discrediting
the essence of the government’s rebuttal testimony.” United States v. Murray, 736 F.3d
652, 657 (2d Cir. 2013); see also United States v. King, 879 F.2d 137, 138 (4th Cir.
1989). We defer to the district court for matters concerning the order and presentation of
evidence. See Thweatt v. Ontko, 814 F.2d 1466, 1470 (10th Cir. 1987). Whether to allow
surrebuttal evidence is committed to the district court’s sound discretion. See United
States v. Herring, 582 F.2d 535, 543 (10th Cir. 1978). This court will not disturb a district
court’s evidentiary decision “absent a distinct showing it was based on a clearly
erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of
judgment.” United States v. Watson, 766 F.3d 1219, 1234 (10th Cir. 2014). The district
40
court denied Sorensen’s opportunity for surrebuttal, instead allowing him to present the
same evidence in his case-in-chief.
Before trial, Sorensen voluntarily participated in three pre-indictment proffer sessions
with the government. Present at all three sessions were Agent Hagemann and Sorensen’s
former attorney, Leonard Chesler. At trial, Sorensen testified, and on cross-examination
denied that he had made certain statements to Agent Hagemann during the proffers. After
Sorensen testified, the government proposed to call Agent Hagemann in rebuttal to
counter some of Sorensen’s testimony, but before the court ruled, defense counsel told
the court that it then planned to call Chesler in surrebuttal to counter that expected
testimony. The court denied defense counsel’s request, explaining, “I’m going to give the
Government the last word here, and I am not going to get into this scenario where there’s
surrebuttal and then sur-surrebuttal.” Appellant’s App. vol. IV at 855. The court also told
defense counsel it would allow Chesler to testify in its case-in-chief, but that the court
would not give the “last word” to the defense because it did not have the burden of proof.
Appellant’s App. vol. IV at 855. Defense counsel responded that it was his “instinct” not
to call Chesler in the defense’s case-in-chief, even though Chesler was in the courtroom
and available to testify. Appellant’s App. vol. IV at 854–55. The district court again
denied the defense’s request to call Chesler in surrebuttal. In protest, defense counsel
explained that Chesler’s testimony would be premature before rebuttal, but the court still
refused. After rebuttal, defense counsel again explained why Chesler’s testimony was
necessary to refute Agent Hagemann’s recollections of Sorensen’s statements made in the
proffers, but the court again declined. From this, we see the argument as one about the
41
timing of Sorensen’s evidence, not about its exclusion. The court said that Sorensen
could present his evidence—just not in surrebuttal: “You understand, I’m willing to let
you put on Mr. Chesler in your case in chief to testify as to recollection of the statements
made by Dr. Sorensen in your case in chief. So I’m not precluding you from putting that
testimony on now.”17 Appellant’s App. vol. IV at 856.
Sorensen argues that the district court committed legal error by concluding that the
prosecution was entitled to the last word and that the denial of surrebuttal violated his
Sixth Amendment rights. The government disagrees. It is common practice for the party
with the burden of proof to proceed first and last. See, e.g., Fed. R. App. P. 28(c)
(permitting the appellant to file a reply brief, with no further briefing without the court’s
permission). The district court did not declare that it lacked the authority to allow
surrebuttal. Rather, it said it did not want to get into a back-and-forth between the parties.
The government characterizes the dispute as a procedural issue, and one within the
district court’s domain. We agree. See Herring, 582 F.2d at 543 (stating that whether to
allow surrebuttal evidence is committed to the district court’s sound discretion).
17
Sorensen argues that Chesler’s testimony would have been inadmissible before
surrebuttal under Fed. R. Evid. 801(d)(1)(B). We reject this for two reasons. First, the
district court’s quote clearly demonstrates its willingness to hear Chesler’s testimony.
Second, Sorensen never raised this specific argument before the district court and has
not asked for plain error review on appeal. Where a defendant pursues a new legal
theory on appeal, we “usually hold it forfeited.” Richison v. Ernest Grp., Inc., 634
F.3d 1123, 1128 (10th Cir. 2011); Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is
the general rule, of course, that a federal appellate court does not consider an issue
not passed upon below.”). Therefore, we consider this argument waived.
42
Moreover, in response to defense counsel’s request that he keep Chesler on call
because “the Court can never tell what the last word is until the last word is spoken,” the
court permitted it. Appellant’s App. vol. IV at 855. This demonstrates that the court left
open the possibility for surrebuttal if it became necessary after it heard the rebuttal
testimony. That the court later denied surrebuttal after hearing the rebuttal testimony
strongly suggests it found the surrebuttal testimony unnecessary. Sorensen points to no
evidence that the district court would have continued to forbid surrebuttal had it thought
the testimony necessary.18
Sorensen next argues that Chesler’s testimony was proper surrebuttal because it was
in response to rebuttal testimony that raised a new issue broadening the government’s
case. He relies heavily on Murray, 736 F.3d at 653–54, in which the Second Circuit
reversed a conviction for improper denial of surrebuttal. There, to rebut the defendant’s
cross-examination testimony regarding the number of times the defendant had been to a
certain location, the government introduced cell-phone records suggesting the defendant
had been there frequently. Id. at 655–56. The defendant unsuccessfully sought surrebuttal
to explain his presence in the area, an issue which had not been raised until rebuttal. Id. at
656. On appeal, the Second Circuit rejected the government’s argument that the
defendant had a “full opportunity to put forth any evidence of his presence” during his
defense case because this “misperceives the point in the trial at which the issue became
pertinent.” Id. at 658. The court explained that the defendant had no reason to know,
18
Sorensen submits Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986), to
support his argument. But Van Arsdall deals with cross-examination, not surrebuttal,
so it offers little guidance.
43
before rebuttal, that the frequency of his presence in the area would become an issue in
the trial. Id. Sorensen argues that his case looks like Murray because his defense counsel
had no reason to call Chesler before the prosecution’s rebuttal case. The government
contends that Sorensen’s proposed surrebuttal testimony was not appropriate because the
government had not raised any new issues on rebuttal. The government distinguishes
Murray because, unlike in that case, the government here did not raise new issues during
rebuttal.
We agree with the government’s position. Chesler was available to testify during
Sorensen’s case-in-chief, but defense counsel declined to call him then as a witness based
on “instinct.” Appellant’s App. vol. IV at 854–56. As the government puts it, “[t]his was
a tactical decision the defense must live with.” Appellee’s Br. at 38. Additionally, this
case differs markedly from Murray because here it was highly foreseeable—even
likely—that the government would call Agent Hagemann to testify on rebuttal after
Sorensen had denied making certain statements to Agent Hagemann. The district court
did not abuse its discretion in ruling as it did.
D. Closing-Rebuttal Argument
Sorensen next complains that the prosecution’s closing rebuttal argument misstated
the evidence to mount an unfounded attack on Sorensen’s credibility. He contends that
the prosecutor’s rebuttal theme—that Sorensen had left out or provided wrong
information to Dr. Cogan during their pre-trial interview—grossly misstated what
Sorensen had and had not said to Dr. Cogan. He alleges that the prosecutor’s
44
misstatements prejudiced him by damaging his credibility in a case that turned on his
credibility.
The prosecution may not misstate the evidence during its closing argument. United
States v. Young, 470 U.S. 1, 9 & n.7 (1985). If the prosecutor does so, and the defense
objects to the misstatement, we review de novo whether prosecutorial misconduct
occurred. United States v. Taylor, 514 F.3d 1092, 1097 (10th Cir. 2008). If the defense
failed to object at trial, we review for plain error. United States v. Orr, 692 F.3d 1079,
1098 (10th Cir. 2012). Here, Sorensen objected to some of the prosecutor’s alleged
misstatements, but not to others, so we will deal with each group of statements
separately.
Issue preserved for appeal. Sorensen objected to the prosecutor’s statement
during rebuttal-closing argument that “despite what [Sorensen] told you, and despite
what he told Special Agent Hagemann[,]” Sorensen told Dr. Cogan that “there were
no warning signs, whatsoever, with respect to FFA, until 2009.” Appellant’s App. vol.
IV at 1017–18; Appellant’s Br. at 35. In fact, Dr. Cogan had testified that Sorensen
had told him that there were no warning signs “for the first seven years maybe,”
Appellant’s App. vol. IV at 822–23, and that Sorensen had told him that he had
become “concern[ed]” when agents executed a search warrant at Sugar’s office.
Appellant’s App. vol. IV at 825. Sorensen found out about the search warrant in
August 2007. Thus, the government’s arithmetic was two years off, likely beginning
the “seven years” from 2000 when Sorensen first found and began setting course with
FFA.
45
After Sorensen objected, the court instructed the jury that “to the extent that your
collective memory disagrees with that of any lawyer, rely on your collective
memory.” Appellant’s App. vol. IV at 1018. We conclude that this instruction cured
any possible prejudice. See Harris v. Poppell, 411 F.3d 1189, 1197 (10th Cir. 2005)
(finding that any cautionary steps such as instructions to the jury to counteract
improper remarks must be considered in evaluating harm) (citing Le v. Mullin, 311
F.3d 1002, 1013 (10th Cir. 2002)). Sorensen provides no evidence that the jury
disregarded this comment, and “[j]urors are presumed to follow the judge’s
instructions.” United States v. Templeman, 481 F.3d 1263, 1266 (10th Cir. 2007).
Alleged errors not preserved below. Sorensen challenges three additional alleged
misstatements in the prosecutor’s rebuttal-closing argument. Because he did not
challenge these below, we review them for plain error. See United States v. Rosales-
Miranda, 755 F.3d 1253, 1257 (10th Cir. 2014). The first statement is that
“[Sorensen] didn’t tell Dr. Cogan about the fact that there had been a search warrant
at Melissa Sugar’s office, or at least that that caused him some concern.” Appellant’s
App. vol. IV at 1018; Appellant’s Br. at 35. The government now concedes that Dr.
Cogan in fact testified that Sorensen had told him about the search warrant and that
the search warrant had concerned him. Thus, the prosecutor’s statement was
incorrect. But we agree with the government that this misstatement did not affect
Sorensen’s substantial rights.
Because of the strength of the evidence the government correctly summarized in
closing, we do not believe that the prosecutor’s minor misstatements were “flagrant
46
enough to influence the jury to convict on grounds other than the evidence
presented.” United States v. LaVallee, 439 F.3d 670, 696 (10th Cir. 2006) (quoting
United States v. Meienberg, 263 F.3d 1177, 1180 (10th Cir. 2001)). Further, we note
that the district court instructed the jury that the lawyer’s statements and arguments
are not evidence. See United States v. Rogers, 556 F.3d 1130, 1141 (10th Cir. 2009)
(concluding that the prosecutor’s improper remarks in closing argument did not affect
defendant’s substantial rights, in part because the district court had instructed the jury
that closing arguments are not evidence).
In view of the entire record, we agree with the government that “[s]uch an errant
remark can hardly justify overturning the jury’s verdict.” Appellee’s Br. at 45–46.
The court has “often held that a stray improper remark in closing is no basis for
upsetting a trial and requiring the parties and the district court to redo their ordeal.”
United States v. Lopez-Medina, 596 F.3d 716, 740 (10th Cir. 2010) (quoting
Whittenburg v. Werner Enters., Inc., 561 F.3d 1122, 1131 (10th Cir. 2009)).
Although we do not understand Sorensen to claim prosecutorial misconduct, we note
that even “[p]rosecutorial misconduct is considered harmless ‘unless there is reason
to believe it influenced the jury’s verdict.’” United States v. Green, 435 F.3d 1265,
1268 (10th Cir. 2006) (quoting United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir.
1996)). Here, we are confident that this relatively minor misstatement neither
affected Sorensen’s substantial rights nor the outcome of his case. See Anaya, 727
F.3d at 1056 (concluding that the prosecutor’s improper statements did not rise to the
level of plain error because it did not affect the defendant’s substantial rights).
47
Next, Sorensen challenges the prosecutor’s statement in closing-rebuttal argument
that “[Sorensen] didn’t tell [Dr. Cogan] anything about the over two million dollars in
taxes that he and his son saved . . . .” Appellant’s App. vol. IV at 1018; Appellant’s
Br. at 35. In fact, Dr. Cogan testified that Sorensen “said [the tax savings were] a
large amount, but didn’t give me a number.” Appellant’s App. vol. IV at 824. We find
it debatable whether the government even misstated Dr. Cogan’s testimony. It can
credibly argue that Sorensen did not fully tell Dr. Cogan about the amount of tax
savings—“a large amount” is not the same as “over two million dollars.” Yet we can
understand Sorensen’s view that the prosecutor’s statement might be interpreted to
mean Sorensen had not disclosed to Dr. Cogan that he had saved any taxes. That we
end up parsing the words might explain why Sorensen did not object at trial. In any
event, we conclude that Sorensen fails to meet the stringent requirements of the
plain-error standard.
Finally, Sorensen challenges the prosecutor’s statement that “[Sorensen] didn’t
tell [Dr. Cogan] that he had never filed any tax returns, either for Northside
[Management] or for any of the trusts.” Appellant’s App. vol. IV at 1018. Contrary to
Sorensen’s argument, Dr. Cogan’s testimony at trial did in fact support the
government’s statement. Appellant’s App. vol. IV at 824. Even so, Sorensen still
disputes the accuracy of the government’s statement, reasoning that “Dr. Cogan
indisputably had been provided and had ‘reviewed the Complaint’ (indictment)[,]”
Appellant’s Br. at 35, which stated that Sorensen had not filed any tax returns for
Northside Management or the pure trusts. But this focuses on the wrong question.
48
The appropriate inquiry here is whether the prosecutor misstated that Sorensen failed
to tell Dr. Cogan about the lack of filed tax returns. Sorensen did not tell Dr. Cogan
about it in their interview, so the prosecutor did not misstate the evidence.
Mistrial. During rebuttal-closing argument, the prosecutor said that the trial
evidence showed that “Sorensen has been engaged in manipulation to try to hide
what he has been doing” beginning in 2000, when he set up the trusts, through 2008,
when he failed to file returns for the Northside Management account, and it urged the
jury not to “let yourselves get manipulated.” Appellant’s App. vol. IV at 1019. After
the government’s closing-rebuttal argument, defense counsel sought a mistrial
because the prosecutor’s “theme” that Sorensen had withheld information from and
manipulated Dr. Cogan was “over the top.” Appellant’s App. vol. IV at 1046, 1047.
The district court told counsel “there were more than a few instances where one
could take issue with what the jury was told” but “the instruction is adequate and I
don’t think it warrants or merits a mistrial.” Appellant’s App. vol. IV at 1048.
We review a district court’s denial of a mistrial for abuse of discretion. United
States v. Serrato, 742 F.3d 461, 464 (10th Cir. 2014). Here, Sorensen failed to brief
us on his basis for claiming that the district court’s denial of the mistrial was wrong.
Federal Rule of Appellate Procedure 28(a)(8)(A) requires appellants to sufficiently
raise all arguments and issues on which they wish the court to rule. An issue or
argument that was insufficiently raised in the opening brief is deemed waived. Becker
v. Kroll, 494 F.3d 904, 913 n.6 (10th Cir. 2007) (citing Headrick v. Rockwell Int’l
Corp., 24 F.3d 1272, 1277–78 (10th Cir. 1994)). By not making a single argument in
49
favor of his contention that the district court erred in denying the mistrial, Sorensen
does not get the benefit of us making the argument for him. Therefore, we consider
this argument waived.
E. Cumulative Error
Finally, Sorensen argues that even if we find harmless each of his asserted errors,
we should conclude that their combined effect resulted in a fundamentally unfair trial
and requires reversal. The purpose of cumulative error analysis is to address whether
the “cumulative effect of two or more individually harmless errors has the potential
to prejudice a defendant to the same extent as a single reversible error.” United States
v. Harlow, 444 F.3d 1255, 1269 (10th Cir. 2006) (quoting United States v. Rosario
Fuentez, 231 F.3d 700, 709 (10th Cir. 2000)). If we find multiple errors, we
“aggregate all the errors that we found to be harmless and determine ‘whether their
cumulative effect on the outcome of the trial’ mandates reversal.” Anaya, 727 F.3d at
1060–61 (quoting United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990)).
The government argues that Sorensen’s reference to the cumulative-error doctrine
is merely “conclusory.” Appellee’s Br. at 50. A party asserting a claim is required to
support that claim with argument and appropriate authorities. United States v.
Hardwell, 80 F.3d 1471, 1492 (10th Cir. 1996). Thus, the government contends that
Sorensen has waived his cumulative error argument. We agree that Sorensen does not
cite any pertinent authority to support his assertion that there was cumulative error.
Thus, we agree that he has waived this argument.
50
But even if he had briefed the issue sufficiently, we would still hold that there is no
cumulative error. We found only two possible errors—the prosecutor’s misstatements in
closing argument and the jury instruction on “means.” Based on our reasoning above, we
hold that these two errors do not, cumulatively, amount to reversible error.
III. CONCLUSION
In sum, we conclude that Sorensen’s arguments lack merit. Accordingly, we affirm
his conviction.
51