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