                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 24, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                      No. 09-4080
                                                        (D. Utah)
 v.                                          (D.C. No. 2:07-CR-000008-DB-1)

 THOMAS T. WOOD,

              Defendant-Appellant.



                           ORDER AND JUDGMENT *


Before HENRY, MURPHY, and O’BRIEN, Circuit Judges.


      A jury convicted Thomas T. Wood of (a) one count of endeavoring to

obstruct or impede the administration of the Internal Revenue Code, in violation

of 26 U.S.C. § 7212(a); and (b) two counts of wilfully failing to file personal

income tax returns for 2000 and 2001, in violation of 26 U.S.C. § 7203. The

district court sentenced him to thirty-six months’ imprisonment; imposed a

$250,000 fine ($100,000 for the § 7212(a) conviction and $75,000 for each of the


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 7203 convictions); and ordered him to pay $56,852 in restitution, as a condition

of supervised release.

      In this appeal, Mr. Wood contends that (1) the evidence is insufficient to

support his § 7212(a) conviction; (2) § 7212(a) is unconstitutionally vague; (3)

the jury was improperly instructed on the elements of a § 7212(a) violation; (4)

the district court erred in imposing the $250,000 fine; and (5) the district court

erred in imposing $56,852 in restitution.

      We are not persuaded by Mr. Wood’s challenges to his § 7212(a)

conviction or the imposition of restitution. However, we agree with Mr. Wood

that the district court plainly erred in imposing the $250,000 fine. We therefore

affirm his § 7212(a) conviction and the order imposing restitution. We vacate the

$250,000 fine and remand for further proceedings consistent with this order and

judgment.

                                I. BACKGROUND

      Mr. Wood is a lawyer in Salt Lake City. In his capacity as a private

citizen, he admits that he has not paid taxes since the mid-1980s, claiming that his

religious beliefs forbid him to do so. In April 1998, Mr. Wood acted as the

attorney of record for William Lewis, a defendant, along with Glenn Ambort and

John Benson, in a federal prosecution for defrauding the United States by

impeding the lawful functions of the IRS and aiding and assisting in the

preparation of false tax returns. In late 1998, in a separate matter, Mr. Wood

                                        -2-
began assisting “MyCor,” a Canadian investing business run by Corinne McNabb,

as well as Mr. Ambort and Mr. Benson.

      MyCor described its business model to its investors as a way of allowing

tax-free investments in offshore bank accounts in a tax haven country. After the

money in those offshore bank accounts was invested, the investment profits and

principal were to be returned to the original investors through foreign-issued debit

cards. Unknown to its investors, MyCor’s actual business model resembled a

Ponzi scheme, in which early investors were given a high monthly return,

financed with investments made by subsequent investors.

      On behalf of MyCor, Mr. Wood received more than $11 million in funds

from investors and from Ms. McNabb, and then transferred those funds into a

non-interest bearing account in the name of “The Family Foundation.” Mr. Wood

had previously established this account to collect donations for the Goodmans, a

family traveling the world to promote family values. The Family Foundation

account was not identified with MyCor.

      Of the $11 million in investment funds, Mr. Wood forwarded only about

$1.5 million to Ms. McNabb. Mr. Wood spent approximately $5,786,381 of the

remaining $9.5 million on behalf of Mr. Ambort and Mr. Benson, withdrawing the

money from The Family Foundation account and moving it through foreign bank

accounts opened in nominee names. Part of the $5,786,381 was used to purchase

houses and to lease automobiles for Mr. Ambort, Mr. Benson, and their

                                         -3-
associates, using the nominee names for the titles. Another part of that sum was

transferred to offshore debit card accounts of individuals who lived with Mr.

Ambort and Mr. Benson; it was then used to pay Mr. Ambort’s and Mr. Benson’s

personal expenses. Mr. Wood spent approximately $409,064 in the same manner

to pay for his and his family’s personal expenses. Mr. Wood did not report any of

this amount as income to the IRS.

      A federal grand jury indicted Mr. Wood on one count of impeding the due

administration of the tax code, in violation of 26 U.S.C. § 7212(a), and two

counts of failing to file federal income tax returns (in 2000 and 2001), in

violation of 26 U.S.C. § 7203. He pleaded not guilty, and a jury convicted him of

all three counts.

      The presentence report (PSR) determined the total intended tax loss to be

$1,083,373. See Rec. vol. 3, at 7, ¶ 28, It derived that figure by taking the IRS’s

assessment of the gross income figures for the tax years 1999-2001 for Mr.

Ambort, Mr. Ambort’s associates, and Mr. Wood—$5,416,868—and then

calculating 20% of that total.

      The $1,083,373 tax loss resulted in a base offense level of twenty-two. The

PSR then added three two-level enhancements (for failing to report the source of

income exceeding $10,000, using sophisticated means, and using special skills in

a manner that significantly facilitated the commission or concealment of the

offense). See id. at 8, ¶¶ 34-36.

                                         -4-
      With a criminal history category of I, the advisory United States Sentencing

Guidelines (USSG) recommended imprisonment from seventy-eight to ninety-

seven months. However, those figures exceeded the statutory maximum of sixty

months for all three counts. Therefore, the PSR concluded, the recommended

sentence under the Guidelines was sixty months. See USSG § 5G1.1(a)

(providing that “[w]here the statutorily authorized maximum sentence is less than

the minimum of the applicable guideline range, the statutorily authorized

maximum sentence shall be the guideline sentence”).

      The PSR concluded that, in light of Mr. Wood’s offense level, the

minimum fine was $12,500 and the maximum was $125,000. It added that the

court could impose a lesser amount, or waive the fine altogether, if Mr. Wood was

unable to pay. See Rec. vol. 3, at 16, ¶ 70 (citing USSG § 5E1.2(c)(3)). Upon

review of Mr. Wood’s assets and liabilities, the PSR further concluded that

“[b]ased on “[Mr. Wood’s] financial profile, to include significant tax debt, it

appears that he does not have the ability to pay a fine.” Id. at 7, ¶ 58.

      After reviewing the PSR, the government filed a sentencing memorandum

that calculated a slightly lower total tax loss—$1,078,057. See Rec. vol. 1, at

142. The government added that “[a] fine at the low end of the Guideline range is

also appropriate.” Id. at 150.

      At the sentencing hearing, the government urged the court to order Mr.

Wood to pay $56,852 in restitution. It explained that this sum was “20 percent of

                                         -5-
the amount of expenditures that we could individually attribute to [Mr. Wood], on

behalf of [Mr. Wood], and on behalf of his family, for those three years, ‘99,

2000, and 2001.” Rec. vol. 2, at 923.

      The district court imposed a sentence of thirty-six months’ imprisonment,

$56,852 in restitution, and a $250,000 fine. With regard to the fine, the court

stated:

      I find that you do have the ability to pay that. You have devoted your
      life to manipulating your money so that you don’t have to pay taxes and
      you don’t have to satisfy the obligations that other people have to do.
      I know that the [PSR] shows that your wife sold her house and has
      $200,000 that is her money. That may be legally correct. I don’t know.
      Everything about your life tells me that you have hidden money and you
      have done things in a way that keeps you from doing one little thing
      that we all have to do, maybe not a little thing, pay taxes. . . .

             I’ll also impose restitution of $56,852 for taxes. I’m not
      imposing any other restitution. I’m imposing such a large fine, and I
      can’t remember the last time I imposed such a large fine, because I
      think that it is the only way to get you to pay anything to the
      government. I have no confidence that you’re ever going to pay your
      taxes. We’ll put you on supervised release and one of the conditions is
      that you pay your taxes. Given your history I would be a fool to think
      you’re not going to get through that year without paying taxes because
      that is what you do. That is what you have always done. You cannot
      in my view, and I don’t see how you can get around this $250,000 fine,
      and it is a fine you have to pay. You have to pay it. Your property can
      be attached, a judgment can be obtained by the government . . . . We
      can get people attempting to collect money from you. I have no idea
      the amount of money that you have kept that was properly to be turned
      over to the United States government since the 1980s. It is probably
      quite a bit of money. You have been working as a lawyer most of that
      time. . . .




                                        -6-
Id. at 927-28. The court added that it was imposing a sentence within the Guidelines

and had accepted the calculations of the PSR.

      Counsel for the government then informed the court that the $250,000 fine was

above the Guidelines’ recommended maximum amount and stated, “I will assume

[the amount of the fine] is a departure from the [G]uidelines.” Id. at 936. The court

responded:

      Well, then let’s put it within the [G]uidelines. I will do $100,000 on
      count one, $75,000 on count two and $75,000 on count three. Is that
      within the [G]uidelines? We’ll keep this whole thing within the
      [G]uidelines.

Id. at 937. Neither the government nor Mr. Wood objected to the imposition of

the $250,000 fine.

                                 II. DISCUSSION

      In this appeal, Mr. Wood argues that (1) the evidence was insufficient to

support the § 7212(a) conviction; (2) § 7212(a) is unconstitutionally vague; (3)

the jury was improperly instructed on the elements of a § 7212(a) offense; (4) the

district court erred in imposing the $250,000 fine; and (5) the district court erred

in imposing $56,852 in restitution. We consider each argument in turn.

      A. The evidence is sufficient to support Mr. Wood’s § 7212(a)
conviction.

      Mr. Wood advances three challenges to the sufficiency of the evidence

supporting his § 7212(a) conviction. First, he argues that the government failed

to prove that he was aware of a pending IRS action or investigation. Second, he

                                        -7-
maintains that “the facts simply do not support that the natural and probable

effect of Mr. Wood’s actions was to obstruct the due administration of the

Internal Revenue Code.” Aplt’s Br. at 27. Third, he asserts that the government

failed to prove that he corruptly intended to obstruct or impede the IRS. Id. at 30.

      We consider the sufficiency of the evidence de novo, viewing the evidence

as a whole and in the light most favorable to the government and “asking whether

any rational trier of fact could have found the defendant guilty of the crime

beyond a reasonable doubt.” United States v. Parker, 553 F.3d 1309, 1316 (10th

Cir. 2009) (internal quotation marks omitted). Our review is deferential to the

jury’s factfinding, and we must sustain Mr. Wood’s conviction if any rational

juror could have found him guilty. Id. The jury’s credibility determinations are

“virtually unreviewable on appeal.” United States v. Virgen-Chavarin, 350 F.3d

1122, 1134 (10th Cir. 2003) (internal quotation marks omitted).

      Section 7212(a) provides, in part, that “[w]hoever corruptly or by force or

threats of force . . . 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 . . . .” In order to

establish a violation of § 7212(a) in this case, the government must prove that a

defendant “corruptly” endeavored to obstruct or impede the due administration of

the internal revenue laws. United States v. Winchell, 129 F.3d 1093, 1098 (10th

Cir. 1997).

                                         -8-
      Under § 7212(a), to act “corruptly” means to act with the intent to secure

an unlawful benefit either for oneself or for another. Id. As the Eleventh Circuit

has explained, “‘corruptly’ was used in § 7212(a) . . . to prohibit all activities

that seek to thwart the efforts of government officers and employees in executing

the laws enacted by Congress.” United States v. Popkin, 943 F.2d 1535, 1540

(11th Cir. 1991). “In a system of taxation such as ours which relies principally

upon self-reporting, it is necessary to have in place a comprehensive statute in

order to prevent taxpayers and their helpers from gaining unlawful benefits by

employing that variety of corrupt methods that is limited only by the imagination

of the criminally inclined.” Id. (internal quotation marks omitted).

      In light of § 7212(a)’s broad scope, “even legal actions violate § 7212(a) if

the defendant commits them to secure an unlawful benefit for himself or others.”

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997); see also United States

v. Bostian, 59 F.3d 474, 479 (4th Cir. 1995) (“Even assuming that his posting of

the enlarged copy of the lis pendens and the distribution of copies of the

document violated no law, these actions clearly were intended to impede the

government’s efforts to sell the seized property at auction.”); Popkin, 943 F.2d at

1540 (holding the evidence sufficient to support a § 7212(a) conviction when the

the defendant attorney “create[d] . . . [a] . . . corporation for the purpose of

enabling [a client] to disguise the character of illegally earned income and to

repatriate it,” and when the defendant “acted corruptly . . . because at least one

                                          -9-
intent in creating the corporation was to secure an unlawful benefit for his

client”).

             1. The government was not required to prove that Mr.
             Wood was aware of an IRS action or investigation.

       In challenging the sufficiency of the evidence, Mr. Wood first argues that §

7212(a) requires the government to prove that he was aware of some pending IRS

action or investigation when he “corruptly . . . obstruct[ed] or impede[d], or

endeavor[ed] to obstruct or impede, the due administration of [the Internal

Revenue Code].” 26 U.S.C. § 7212(a). In advancing this argument, Mr. Wood

relies entirely on precedent from the Sixth Circuit.

       In United States v. Kassouf, 144 F.3d 952 (6th Cir. 1998), a divided Sixth

Circuit panel held that the language in § 7212(a), “corruptly . . . endeavors to

obstruct or impede . . . the due administration of this title,” should be construed

similarly to the language in 18 U.S.C. § 1503. Section 1503 establishes criminal

penalties for one who “corruptly . . . endeavors to influence, intimidate, or

impede any grand or petit juror, or officer in or of any court of the United States

. . . in the discharge of his duty . . . or endeavors to influence, obstruct, or

impede, the due administration of justice.” The Supreme Court has interpreted §

1503 to require the government to prove the element of knowledge of a pending

judicial proceeding. United States v. Aguilar, 515 U.S. 593, 599 (1995). Because

Aguilar’s interpretation of § 1503 was prevailing law before Congress enacted §


                                         - 10 -
7212(a), and because of the “nearly identical language” in § 7212(a), Kassouf

held that Congress intended that § 7212(a) similarly require the government to

prove the element of knowledge of a pending IRS action. 144 F.3d at 958.

      In our view, Kassouf is not persuasive. Soon after that decision was

published, it was “limited to its precise holding and facts” by United States v.

Bowman, 173 F.3d 595, 600 (6th Cir. 1999). Bowman affirmed a § 7212(a)

conviction for deliberately filing false tax forms without evidence that the

defendant was aware of a pending IRS action or investigation.

      Additionally, Kassouf’s reasoning is questionable. The terms of 18 U.S.C.

§ 1503, the obstruction of justice statute on which the Sixth Circuit panel relied,

are substantially different than § 7212(a). Section 1503’s provision prohibiting

endeavors “to influence, obstruct, or impede the due administration of justice,”

follows a long list of specific prohibitions of conduct that interferes with actual

judicial proceedings. In contrast, § 7212(a) criminalizes “obstruct[ing] or

imped[ing] or endeavor[ing] to obstruct or impede, the due administration of this

title.” A citizen may “obstruct[] or impede[], or endeavor[] to obstruct or impede

. . . the due administration of [the Internal Revenue Code],” id., without an

awareness of a particular action or investigation, for example, by thwarting the

annual reporting of income. As the Eleventh Circuit has observed, “[t]he income

tax laws require annual reporting of all income in the year earned. The entire

system is built on the basis of annual reporting, and any arrangement that permits

                                        - 11 -
a taxable entity to avoid reporting income in the taxable year when earned has the

effect of skewing the system and thus impeding or obstructing the due

administration of the tax laws.” Popkin, 943 F.2d at 1541 (emphasis omitted).

      Finally, Kassouf’s holding has been rejected by other courts. For example,

the Ninth Circuit has concluded that “the government need not prove that the

defendant was aware of an ongoing tax investigation to obtain a conviction under

§ 7212(a).” United States v. Massey, 419 F.3d 1008, 1010 (9th Cir. 2005); see

United States v. Kelly, 564 F. Supp. 2d 843, 844 (N.D. Ill. 2008) (concluding that

“§ 7212(a)’s omnibus clause does not require a defendant act with knowledge that

an IRS investigation is on-going or imminent”); United States v. Willner, No. 07

Cr. 183(GEL), 2007 WL 2963711, at *5 (S.D.N.Y. Oct. 11, 2007) (disagreeing

with Kassouf and observing that “the plain language of [26 U.S.C. § 7212(a)]

prohibits any effort to obstruct the administration of the tax code, not merely

investigations and proceedings conducted by the tax authorities”) (emphasis in

original).

      Accordingly, in light of the broad language in § 7212(a), a defendant may

endeavor to obstruct or impede the broad and continuously operating tax code and

thereby violate § 7212(a) regardless of whether he or she was aware of any

pending IRS action or investigation. Mr. Wood’s alleged lack of knowledge of

such an action or investigation does not render his conviction invalid.




                                        - 12 -
             2. The government established that the natural and
             probable effect of Mr. Wood’s actions was to obstruct
             the operation of the Internal Revenue Code.

      Next, Mr. Wood argues that “the facts simply do not support that the

natural and probable effect of [his] actions was to obstruct the due administration

of the Internal Revenue Code.” Aplt’s Br. at 27. He contends that the

government failed to show that he impeded the criminal prosecution of Mr.

Ambort and his associates. Additionally, he contrasts his conduct with that of

other defendants convicted of § 7212(a) charges. He observes that “[t]here were

no attempts to unlawfully deceive or threaten so typical of endeavors to obstruct

such as false refund claims, filing of false tax exempt status, false tax returns,

false tax 1099 forms, false tax liens, attacks on IRS facilities and other threats

against the IRS and its employees.” Id.

      Mr. Wood’s argument is based on an unduly narrow reading of the statute.

As the Fourth Circuit has noted, even lawful actions may violate § 7212(a) “if the

defendant commits them to secure an unlawful benefit for himself or others.”

Wilson, 118 F.3d at 234.

      Here, the alleged gaps in the government’s evidence that Mr. Wood now

emphasizes do not undermine the jury’s finding that he “corruptly . . .

obstruct[ed] or impede[d], or endeavor[ed] to obstruct or impede, the due

administration of [the Internal Revenue Code].” 26 U.S.C. § 7212(a). In

particular, neither the absence of any indication that Mr. Wood interfered with the

                                        - 13 -
1998 criminal prosecution of Messrs. Ambort, Benson, and Lewis nor the lack of

evidence that he filed false documents with the IRS undermines the government’s

evidence. That evidence showed that Mr. Wood acted to conceal his own

income, as well as Mr. Ambort’s and Mr. Benson’s, through the means specified

in the indictment: transferring MyCor funds from the Family Foundation account

to nominee bank accounts; using those funds to pay Mr. Ambort’s, Mr. Benson’s

and his own expenses; and establishing offshore debit card accounts for Mr.

Ambort and Mr. Benson’s friends and associates.

        In light of § 7212(a)’s broad scope, see Popkin, 943 F.2d at 1540, the

evidence is sufficient to establish that the natural and probable effect of Mr.

Wood’s actions was to obstruct or impede the operation of the Internal Revenue

Code.

              3. The government proved that Mr. Wood corruptly
              intended to obstruct or impede the IRS.

        In a final challenge to the sufficiency of the evidence, Mr. Wood contends

that a rational jury could not find that he intended to obstruct or impede the

administration of the Internal Revenue Code. He suggests that the government’s

evidence supported the inference that he may have intended to violate federal

securities laws but not that he intended to obstruct the IRS’s operations. He

observes that none of the government’s witnesses testified that they heard him




                                         - 14 -
discuss hiding money from the IRS and adds that he did not conceal the fact that

he had not filed tax returns since the mid-1980s.

      Again, we are not persuaded. In making its determination regarding a

defendant’s intent, the jury may consider circumstantial evidence. United States

v. Prows, 118 F.3d 686, 692 (10th Cir. 1997); see United States v. Johnson, 971

F.2d 562, 566 (10th Cir. 1992) (“Direct evidence of a defendant’s intent is seldom

available. Intent can be proven, however, from surrounding circumstances.”).

      Here, the evidence offered by the government provides ample support for

the jury’s finding that Mr. Wood acted with the intent to secure an unlawful

benefit for himself, Mr. Ambort, and Mr. Benson—non-payment of income taxes

in violation of federal law. Even if no witness heard Mr. Wood express that

intent, and even if he and his cohorts also intended to evade federal securities

laws, the government established through an abundance of circumstantial

evidence that he acted with the requisite intent to support his conviction under §

7212(a).

      B. Section 7212(a) is not unconstitutionally vague.

      Next, Mr. Wood argues for the first time on appeal that § 7212(a) is

unconstitutionally vague. In support of that argument, he invokes the Due

Process Clause of the Fifth Amendment.

      “A penal law is void for vagueness if it fails to ‘define the criminal offense

with sufficient definiteness that ordinary people can understand what conduct is

                                        - 15 -
prohibited’ or fails to establish guidelines to prevent ‘arbitrary and discriminatory

enforcement of the law.’” City of Chicago v. Morales, 527 U.S. 41, 64-65 (1999)

(O’Connor, J., concurring) (quoting Kolender v. Lawson, 461 U.S. 352, 357

(1983)). Because this argument was not raised in the district court, it is

reviewable only for plain error. United States v. Robertson, 473 F.3d 1289, 1291

(10th Cir. 2007); Fed. R. Crim. P. 52(b). “Plain error exists only where (1) there

was error, (2) that is plain, (3) that affects substantial rights, and (4) that

seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Robertson, 473 F.3d at 1291.

       Mr. Wood contends that, as the district court interpreted the statute, §

7212(a) is not sufficiently defined so that ordinary people can understand what

conduct is prohibited. “Where a vagueness challenge does not implicate First

Amendment freedoms, our review is limited to the application of the statute to the

particular conduct charged.” United States v. Michel, 446 F.3d 1122, 1135 (10th

Cir. 2006) (quotation marks omitted). “[I]f the general class of offenses to which

. . . [the statute is] directed is plainly within [its] terms, . . . [the statute] will not

be struck down as vague, even though marginal cases could be put where doubts

might arise.” United States Civil Serv. Comm’n v. National Ass’n of Letter

Carriers, 413 U.S. 548, 577 (1973) (quotation marks omitted). A challenge for

vagueness will fail if a reasonable person would have known from the language of




                                            - 16 -
the statute that his or her conduct was at risk. Maynard v. Cartwright, 486 U.S.

356, 361 (1988).

      Vagueness arguments challenging § 7212(a) have been rejected by other

courts. See, e.g., United States v. Kelly, 147 F.3d 172, 176 (2d Cir. 1998); United

States v. Reeves, 752 F.2d 995, 1001 (5th Cir. 1985). We agree with those

decisions. The government charged Mr. Wood with deceptive techniques

including using domestic non-interest-bearing bank accounts under his signature,

offshore credit card accounts, and nominee entities to hide income and assets

from the IRS. The jury found that Mr. Wood’s actions were intended to obstruct

or impede the administration of the tax code with the intent to gain an unlawful

benefit, and § 7212(a) gives a reasonable person clear notice that these actions are

prohibited. We conclude that § 7212(a) is not vague as applied to the particular

conduct alleged in this case.

      Mr. Wood also argues that, in addition to its unconstitutionally vague

application to the specific facts of his case, § 7212(a) is facially invalid because it

infringes First Amendment rights and chills the exercise of constitutionally

protected First Amendment activities, such as resisting paying taxes. The

nonpayment of taxes, however, is not speech or conduct protected by the First

Amendment. Cf. Reeves, 752 F.2d at 1001 (“To interpret ‘corruptly’ as meaning

‘with an improper motive or bad or evil purpose’ would raise the potential of

‘overbreadth’ in [§ 7212(a)] because of the potential chilling effect on protected

                                         - 17 -
activities. . . . Where ‘corruptly’ is taken to require an intent to secure an

unlawful advantage or benefit, the statute does not infringe on first amendment

guarantees and is not ‘overbroad.’”) (citations omitted). The government may

seek criminal sanctions against those who illegally impede the due administration

of this nation’s tax laws.

      C. Under plain error review, Mr. Wood is not entitled to relief on the
grounds that the district court erred in instructing the jury on the elements
of the § 7212(a) charge.

       Mr. Wood also argues that the district court erred in instructing the jury on

the elements of a § 7212(a) violation. He challenges instruction 18, which states,

in part:

             Count I of the indictment charges that the defendant corruptly
       endeavored to impair or impede the due administration of the internal
       revenue laws through various acts over a period of time.

             To warrant a verdict of guilty on Count I [the § 7212(a)
       obstruction charge], the government need not prove all of the alleged
       acts. Rather, the government need prove only one of the alleged means
       and that such act was a corrupt endeavor to impede the due
       administration of the internal revenue laws.

              Your vote, then, need not be unanimous that the defendant
       committed all of the alleged acts. Your vote must be unanimous,
       however, that the defendant committed at least one of the acts.
       Moreover, your vote must be unanimous as to the same act. That is,
       you must all agree that the defendant committed a particular act and
       that, as alleged, the act amounted to a corrupt endeavor to impede the
       due administration of the internal revenue laws.

Rec. vol. 1, doc. 55 (Instr. no. 18) (emphasis added).




                                         - 18 -
      In explaining to the jury “the alleged means” that Mr. Wood had employed to

“endeavor to impede the due administration of the internal revenue laws,” id., the

district court provided the jury with the allegations of the indictment. In particular,

instruction 14 stated, in part:

             The indictment in this case accuses the defendant . . . with the
      crimes of wrongfully endeavoring to obstruct and impede the due
      administration of the internal revenue laws and of willfully failing to
      file individual income tax returns. As to these crimes, the indictment
      reads as follows:

             At all times relevant to this indictment, [Mr. Wood] was a
      practicing attorney who filed no income-tax returns, and Ernest Glenn
      Ambort was the lead defendant in a pending criminal tax case . . . .
      Defendant [Mr. Wood] represented one of Ambort’s co-defendants.

            Beginning in or around October 1998, . . . and continuing
      thereafter up to and including April 15, 2002, in the District of Utah,
      [Mr. Wood] . . . did corruptly endeavor to obstruct and impede the due
      administration of the internal revenue laws by various means, including
      using domestic non-interest bearing bank accounts under his signature,
      offshore credit-card accounts, and nominee entities to conduct business
      for Ernest Glenn Ambort, for the MyCor Investment Club . . . , for
      himself and for others, all for the purpose of hiding income and assets,
      as more particularly described below:

             (a) Through about April 2001, [Mr. Wood], aware of the
             Internal Revenue Service’s interest in Ambort’s income
             and assets, used a local bank account for The Family
             Foundation to receive funds from participants in the
             MyCor Investment Club; rather than invest those funds,
             [Mr. Wood] spent them to keep the investment scheme
             going, to pay himself, and to pay the expenses of Ernest
             Glenn Ambort and others.

             (b) During this same period, [Mr. Wood] routed expenses
             through nominee bank accounts . . .


                                        - 19 -
              (c) During the same period, [Mr. Wood] opened offshore
              credit-card accounts for himself and for others, received
              the credit-card statements at his law-office address, and
              paid on the accounts from his domestic bank accounts.

              (d) [Mr. Wood] failed to file his own federal income-tax
              returns when due on April 16, 2001 and April 15, 2002,
              respectively, for the 2000 and 2001 tax years.

Id. at 77-78 (Instr. no. 14) (emphasis added).

       Mr. Wood focuses on the highlighted portions of instructions 18 and 14.

He contends that read together, these instructions erroneously allowed the jury to

find that failing to file income tax returns in violation of 26 U.S.C. § 7203 would

alone be sufficient grounds for a § 7212(a) conviction.

       Mr. Wood’s counsel did not object to these jury instructions at trial.

Accordingly, we review the challenged instructions for plain error. See

Robertson, 473 F.3d at 1291; Fed. R. Crim. P. 52(b). Mr. Wood must now

establish (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that

seriously affects the fairness, integrity or public reputation of judicial

proceedings. Robertson, 473 F.3d at 1291.

       Upon review of the applicable law, we conclude that Mr. Wood has made a

plausible argument for the first two components of plain error review. The

instructions do allow the jury to find that Mr. Wood’s mere failure to file tax

returns constituted a “corrupt[] endeavor to obstruct and impede the due




                                           - 20 -
administration of the internal revenue laws.” Rec. vol. 1, doc. 55 (Instr. 14). As

Mr. Wood contends, that is a questionable proposition. The willful failure to file

tax returns is addressed in a different section of the Internal Revenue Code, 26

U.S.C. § 7203. The government has identified no language in the Code

suggesting that the same conduct constituting a violation of § 7203 (a

misdemeanor) may also constitute a violation of § 7212(a) (a felony).

      Moreover, the government has provided us with no case authority directly

supporting the jury instructions’ theory that the failure to file under § 7203 can

constituted a “corrupt[] endeavor to obstruct and impede the due administration of

the internal revenue laws” under § 7212 (a). Rec. vol. 1, doc. 55 (Instr. 14).

Although the government seeks to defend the jury instructions in its appellate

brief, the cases it cites all involve various failures to act that have been deemed

sufficient to support convictions under other statutes, not § 7212(a). See Aple’s

Br. at 36-39.

      Nevertheless, the third component of the plain error inquiry presents Mr.

Wood with a much higher hurdle. “In the ordinary case, to meet this standard an

error must be ‘prejudicial,’ which means that there must be a reasonable

probability that the error affected the outcome of the trial.” United States v.

Marcus, --- S. Ct. ----, No. 08-1341, 2010 WL 2025203, at *3 (May 24, 2010).

The defendant’s burden is to “satisfy the judgment of the reviewing court,

informed by the entire record, that the probability of a different result is sufficient

                                         - 21 -
to undermine confidence in the outcome of the proceeding.” United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004) (internal quotation marks omitted).

      When, as here, a defendant contends that the trial court’s instructions allow

the jury to convict on alternative theories, one of which is valid and one of which

is legally erroneous, the reasonable-probability, plain-error inquiry differs

markedly from the standard that we apply when a defendant objects at trial. In

the latter instance, a general verdict must be set aside “when [it] is supportable on

one ground, but not on another, and it is impossible to tell which ground the jury

selected.” United States v. Yates, 354 U.S. 298, 312 (1957), overruled in part on

other grounds by Burks v. United States, 437 U.S. 1 (1978), and Griffin v. United

States, 502 U.S. 46 (1991) 1; see also United States v. Miller, 84 F.3d 1244, 1257

(10th Cir. 1996) (“Because the instruction defining one of the two alternative

grounds for conviction was legally erroneous, we must reverse the conviction

unless we can determine with absolute certainty that the jury based its verdict on

the ground on which it was correctly instructed.”), overruled in part on other

grounds by United States v. Holland, 116 F.3d 1353, 1359 n.4 (10th Cir. 1997).

In contrast, when the defendant does not object, the Yates impossible-to-tell-

warrants-reversal standard does not apply.



      1
         In Griffin, 502 U.S. at 51-60, the Supreme Court limited Yates’s holding
to situations in which one of the possible bases of conviction was legally
insufficient as opposed to factually insufficient.

                                        - 22 -
      Instead, under the third component of the plain error inquiry, we must

“examin[e] . . . the impact of the district court’s instructional error on the

outcome of the case, i.e., whether the error affected [the defendant’s] substantial

rights. United States v. Duran, 133 F.3d 1324, 1333 (10th Cir. 1998) (internal

quotation marks omitted). The defendant must show that there is a reasonable

probability that the jury would have reached a different result if given the correct

instruction. See Dominguez Benitez, 542 U.S. at 83. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” United States

v. Hasan, 526 F.3d 653, 665 (10th Cir. 2008) (internal quotation marks omitted).

      In making this reasonable-probability inquiry, we may consider the strength

of the government’s case. See United States v. Draper, 553 F.3d 174, 182 (2d

Cir. 2009) (concluding that there was no evidence to support an element on which

the district court had failed to instruct the jury and that, as a result, there was “a

reasonable probability that, but for the error claimed, the result of the proceeding

would have been different”) (alteration and internal quotation marks omitted).

We may also consider whether the prosecutor emphasized the erroneous

instruction in closing argument, see United States v. Rush-Richardson, 574 F.3d

906, 912 (8th Cir. 2009), and whether, during its deliberations, the jury asked a

question suggesting that it had considered the erroneous instruction, see id. at

912-13.

      Here, assuming without deciding that the district court committed (1) error

                                          - 23 -
in instructing the jury that (2) is plain, Mr. Wood has not established a reasonable

probability that he would have been acquitted on the § 7212(a) charge if the jury

had been instructed as he now requests. In support of that conclusion, we first

note that the government’s evidence supporting the three other means of

“corruptly endeavor[ing] to obstruct and impede the due administration of the

internal revenue laws,” Rec. vol. 1, doc. 55 (Instr. 14), was quite strong. There

was essentially no dispute that Mr. Wood (1) used the Family Foundation account

to pay himself and to the pay the expenses of Mr. Ambort and Mr. Benson; (2)

routed those expenses through nominee bank accounts; and (3) used offshore

credit card accounts to pay those expenses. Indeed, at sentencing the district

court remarked that the evidence on the § 7212 charge was “overwhelmingly

persuasive . . . that [Mr. Wood] systematically and with some sophistication”

assisted Mr. Ambort and Mr. Benson with “being tax evaders and helping others

be tax evaders.” Rec. vol. 2, at 926.

      Additionally, there is no indication that the prosecution described Mr.

Wood’s failure to file as an essential component of the § 7212(a) charge. For

example, in his closing argument, the prosecutor first explained that charge by

stating that “our burden is to prove that, indeed, the defendant is a helpful guy.

He made available the resources that he had at hand, non-interest bearing bank

accounts in the name of the Family Foundation.” Id. at 853. The prosecutor did




                                        - 24 -
not suggest that the jury could convict Mr. Wood of the § 7212(a) violation

merely by finding that he had failed to file tax returns for 2000 and 2001.

      In his subsequent remarks, the prosecutor did mention Mr. Wood’s failure

to file tax returns. However, he again did not suggest that this failure, standing

alone, was sufficient to support the § 7212(a) charge. Instead, he discussed Mr.

Wood’s failure to file in the context of many other acts that impeded the

administration of the Internal Revenue Code:

      [Y]ou heard in the instructions that the corrupt endeavor, that part of
      the corrupt endeavor has to occur after January the 10th of 2001.
      You’ll see from the evidence that the defendant was prepared and ready
      through 2002 to help his friends fly with him under the I.R.S.’s radar.
      In April he failed to file his 2001 tax return. Through April of 2001 he
      is paying on John Benson’s home in Draper. Also through June of 2001
      he is paying other expenses of Ambort’s staff and others. . . .
      According to one private and very cryptic e-mail . . . in June of 2001
      the defendant is still anticipating money coming back from Mycor,
      according to the e-mail, and he intends to hide it from what he calls the
      dragon or the beast, which is a reference to the government who is
      interested in taxing the funds.

Id. at 866.

      Accordingly, in light of (a) the strength of the evidence supporting the

government’s contention that Mr. Wood corruptly endeavored to obstruct and

impede the due administration of the internal revenue laws by means other than

merely failing to file tax returns for 2000 and 2001; and (b) the prosecution’s

emphasis on these other means in its presentations to the jury, Mr. Wood has

failed to establish a reasonable probability of a different result sufficient to


                                         - 25 -
undermine confidence in the outcome of the proceeding. Dominguez Benitez, 542

U.S. at 83. Accordingly, we reject his challenge to the § 7212(a) conviction

based on the alleged error in the jury instructions.

      D. The district court plainly erred in imposing the $250,000 fine.

      Mr. Wood next contends that he is entitled to resentencing because the

district court erred when it imposed an unreasonably high fine of $250,000. As

Mr. Wood concedes, he did not object to the imposition of the fine in the district

court proceedings, and our review is therefore for plain error. See Robertson, 473

F.3d at 1291.

      Under 18 U.S.C. § 3571(a), “[a] defendant who has been found guilty of an

offense may be sentenced to pay a fine.” The following subsection sets forth the

maximum fine for various classes of offenses. See id. § 3571(b). For felonies

(such as Mr. Wood’s § 7212(a) conviction), the maximum fine is $250,000. See

id. § 3571(b)(3). For class A misdemeanors (such as Mr. Wood’s two § 7203

convictions), the maximum is $100,000. See id. § 3571(b)(5).

      Section 3572 sets forth the factors that the sentencing court must consider

in imposing a fine upon an individual defendant:

      (1) the defendant’s income, earning capacity, and financial resources;
      (2) the burden that the fine will impose upon the defendant, any person
      who is financially dependent on the defendant, or any other person
      (including a government) that would be responsible for the welfare of
      any person financially dependent on the defendant, relative to the
      burden that alternative punishments would impose;
      (3) any pecuniary loss inflicted upon others as a result of the offense;

                                        - 26 -
      (4) whether restitution is ordered or made and the amount of such
      restitution;
      (5) the need to deprive the defendant of illegally obtained gains from
      the offense;
      (6) the expected costs to the government of any imprisonment,
      supervised release, or probation component of the sentence;
      (7) whether the defendant can pass on to consumers or other persons the
      expense of the fine.

18 U.S.C. § 3572(a). The sentencing court must also consider the factors set forth

in 18 U.S.C. § 3553(a), which governs the imposition of sentences of

imprisonment as well as fines.

      The determination of the amount of the fine is also addressed by the

advisory United States Sentencing Guidelines (USSG). Section 5E1.2(a) provides

that “[t]he court shall impose a fine in all cases, except where the defendant

establishes that he is unable to pay and is not likely to become able to pay any

fine.” USSG § 5E1.2(a). Thus, the defendant has the burden of proving that he is

unable to pay a particular fine. United States v. Ballard, 16 F.3d 1110, 1114

(10th Cir. 1994). Section 5E1.2(c) sets forth minimum and maximum fines based

on the offense level.

      Here, as we have noted, the PSR determined the offense level to be twenty-

eight, which resulted in an advisory Guidelines range of $12,500 to $125,000.

Upon review of Mr. Wood’s assets and liabilities, the PSR further concluded that

“[b]ased on “[Mr. Wood’s] financial profile, to include significant tax debt, it

appears that he does not have the ability to pay a fine.” Rec. vol. 3, at 14, ¶ 58.


                                         - 27 -
In its sentencing memorandum, the government stated that “[a] fine at the low end

of the Guideline range is . . . appropriate.” Rec. vo1. 1, at 150.

      Despite these recommendations in the PSR and the government’s

sentencing memorandum, the district court imposed a total fine of $250,000,

twice the maximum amount under the advisory Guidelines. Apparently, the court

believed that the $250,000 fine was within the Guidelines. In response to the

prosecutor’s observation that $250,000 was above the Guidelines maximum, the

court responded, “Well, let’s put it within the [G]uidelines[,]” and divided the

$250,000 among the three offenses ($100,000 on the § 7212(a) charge and

$75,000 on each of the § 7203 convictions).

      In United States v. Smith, 919 F.2d 123, 126 (10th Cir. 1990), a decision

issued under the mandatory Guidelines scheme that preceded United States v.

Booker, 543 U.S. 220 (2005), this circuit concluded that the imposition of a

$225,000 fine constituted plain error warranting resentencing. The maximum

amount of the fine under the Guidelines was $50,000. We reasoned that “there

was nothing in th[e] record to indicate that the court intended to depart upward or

had a rationale for doing so.” Smith, 919 F.2d at 126.

      In a more recent, post-Booker decision, the Second Circuit has reached a

similar conclusion. See United States v. Elfgeeh, 515 F.3d 100, 136-37 (2d Cir.

2008). There, the maximum amount under the Guidelines was $500,000, but the

district court imposed a fine of $1.25 million (still less than the statutory

                                         - 28 -
maximum). In concluding that the district court had plainly erred and that

resentencing was warranted, the court noted that (1) the defendant was neither

given notice that such a large fine was contemplated nor afforded an opportunity

to be heard on the amount of the fine; (2) the government did not seek an above-

Guidelines fine; (3) the PSR determined that the defendant “would not be able to

pay the fine in any amount”; (4) the district court did not make any findings

regarding the defendant’s ability to pay the fine; and (5) the district court did not

acknowledge at sentencing that it was imposing a fine above the Guidelines

range. Id. at 136-37. Accordingly, “the imposition of a fine of more than double

the maximum recommended by the Guidelines . . . constituted a plain error that

substantially impacted the fairness, or at least the appearance of fairness, of the

sentencing proceeding.” Id. at 137; see also United States v. Mordini, 366 F.3d

93, 95 (2d Cir. 2004) (finding plain error in the imposition of fine that was

“nearly double the maximum fine available under the sentencing guidelines”);

United States v. Quintieri, 306 F.3d 1217, 1235 (2d Cir. 2002) (stating that

“[b]ecause the district court imposed a fine above the Guideline range without

explaining its reason for the departure, the $175,000 fine was clearly imposed in

error” and that “failing to correct the error would seriously affect the fairness of

the judicial proceedings”).

      These decisions support Mr. Wood’s contention that the district court

plainly erred in imposing the $250,000 fine. As in those cases, the district court

                                         - 29 -
gave no explanation of its variance from the Guidelines maximum, apparently

because it mistakenly believed that the fine was within the Guidelines. Although

the court concluded that Mr. Wood did have “the ability to pay [the $250,000

fine] because it believed that Mr. Wood had “hidden money,” Rec. vol. 2, at 930,

it failed to set forth “the specific reason for the imposition of a sentence different

from [the Guideline range].” See 18 U.S.C. § 3553(c)(2). The district court’s

general observation that Mr. Wood had the ability to pay a $250,000 fine does not

adequately explain why the PSR’s conclusion—that his tax debt and his financial

profile indicated that he was unable to pay a fine—was incorrect. In addition, the

district court failed to explain why it discounted the government’s

recommendation that it impose a fine at the low end of the Guidelines range.

      We therefore conclude that the district court’s imposition of the $250,000

fine constituted (1) error, (2) that was plain, (3) that affected Mr. Wood’s

substantial rights, and (4) that seriously affected the fairness, integrity or public

reputation of judicial proceedings. Robertson, 473 F.3d at 1291. Mr. Wood is

entitled to resentencing as to the amount of the fine.

      E. The district court did not err in imposing $56,852 in restitution.

      Finally, Mr. Wood challenges the imposition of $56,852 in restitution. As

we have noted, in imposing that amount, the district court deferred to the

government’s request at sentencing. The government explained that $56,852 was

“20 percent of the amount of expenditures that we could individually attribute to

                                         - 30 -
[Mr. Wood], on behalf of [Mr. Wood], and on behalf of his family, for those three

years, ‘99, 2000, and 2001.” Rec. vol. 2, at 923.

         Mr. Wood now contends that the district court erred in imposing restitution

because the $56,852 had not been previously determined by the IRS to constitute

his income tax obligation for the years at issue and because “the amount ordered

has not been acknowledged, conclusively established in the criminal proceedings

or finally determined in civil proceedings.” Aplt’s Br. at 52. At sentencing, Mr.

Wood objected to the amount of restitution. We therefore review the district

court’s factual findings for clear error and consider de novo “the legality of a

restitution order.” United States v. Griffith, 584 F.3d 1004, 1019 (10th Cir.

2009).

         In support of his argument, Mr. Wood relies on United States v. Franks,

723 F.2d 1482, 1487 (10th Cir. 1983). There, we vacated the imposition of

$100,000 in restitution for unpaid taxes. As authority for its order, the district

court had relied upon 18 U.S.C. § 3561, a statute that has since been repealed.

The defendant and the government agreed that “the figure of $100,000 was

arbitrarily set by the court, and that there was no factual determination made at

the trial of this case of the amount of tax that the defendant might owe the United

States.” 723 F.2d at 1487.

         We are not persuaded by Mr. Wood’s argument that, in light of Franks, the

district court erred in imposing restitution. Here, unlike Franks, the government

                                         - 31 -
does not concede that amount of restitution was arbitrarily imposed. Instead, the

government contends that the restitution order was authorized under the current

statutory scheme and supported by the facts presented to the district court. We

agree with the government.

      As to the statutory scheme, we note that the district court imposed

restitution as a condition of supervised release pursuant to 18 U.S.C. § 3583(d).

Section 3583(d) authorizes the sentencing court to impose such conditions if they

(1) are “reasonably related” to relevant sentencing factors; (2) “involve[] no

greater deprivation of liberty than is reasonably necessary” for the purposes of

sentencing; (3) are “consistent with any pertinent policy statements issued by the

Sentencing Commission[;]” and (4) are “set forth as . . . discretionary condition[s]

of probation in section 3563(b).” In turn, § 3563(b)(2) authorizes a sentencing

court to “make restitution to a victim of the offense.” We agree with the Fifth

Circuit that, “[u]nder the current statutory scheme, restitution may be imposed if

done so as a condition of supervised release in a criminal tax case, even in the

absence of a prior definitive determination or adjudication of the amount of taxes

owed, and if limited to losses from the crime of conviction.” United States v.

Nolen, 523 F.3d 331, 333 (5th Cir. 2008).

      As to the facts at hand, the government’s request for the imposition of

restitution is supported by evidence of Mr. Wood’s income during the years at

issue. Mr. Wood has offered no persuasive evidence or argument suggesting that

                                        - 32 -
the government’s figures are erroneous. We therefore conclude that the amount

of restitution is reasonably related to the relevant sentencing factors and comports

with the other factors set forth in the governing statute, 18 U.S.C. § 3583(d).

       Thus, the district court did not err in requiring Mr. Wood to pay $56,852 in

restitution.

                               III. CONCLUSION

       In order to establish a violation of 26 U.S.C. § 7212(a), the government

was not required to prove that Mr. Wood was aware of a pending IRS action or

investigation. Because the government established that Mr. Wood corruptly

endeavored to obstruct or impede the due administration of the internal revenue

laws by seeking to conceal his own income and the income of his associates, and

because the statute is not unconstitutionally vague, we AFFIRM Mr. Wood’s §

7212(a) conviction.

       The district court’s order imposing $56,852 in restitution was authorized by

the governing statutes and the evidence in the record, and we therefore AFFIRM

that part of Mr. Wood’s sentence. However, the district court plainly erred in

imposing a $250,000 fine, and we therefore VACATE the fine and REMAND for

resentencing consistent with this order and judgment.

                                 Entered for the Court,


                                 Robert H. Henry
                                 United States Circuit Judge

                                        - 33 -
