                                                                                    FILED
                                                                        United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                     TENTH CIRCUIT                              May 7, 2014

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                           No. 11-3354
                                                   (D.C. No. 2:09-CR-20075-JWL-1)
ROSIE M. QUINN,                                                (D. Kan.)

             Defendant - Appellant.




                             ORDER AND JUDGMENT*


Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.


      Rosie M. Quinn, formerly an attorney licensed to practice law in Kansas,1 appeals

from her conviction on seven counts of failing to “pay over” employment taxes (in



      *
        The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). This case is submitted for decision on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
      1
        Quinn was suspended from the practice of law in 2008, she was placed on
disabled/inactive status in 2009, and her license was again suspended in 2011.
violation of 26 U.S.C. § 7202) and two counts of failing to pay individual income tax (in

violation of 26 U.S.C. § 7203). Quinn’s counsel identified no non-frivolous issues for

appeal and filed an Anders brief.2 The brief identified one possible, but likely

unsuccessful, issue: whether the district court erred in denying her motion to dismiss the

indictment’s employment tax counts because, over a year after she was indicted, she paid

the employment taxes due. Counsel subsequently filed a motion to withdraw.

       At our invitation, Quinn filed an extensive objection to the Anders brief. It listed a

number of additional arguments she thinks worthy of our consideration in this appeal.3

The United States filed a brief responding to the issue identified by Quinn’s counsel as

well as many, though not all, of the issues in Quinn’s objection to the Anders brief.

       Because the record on appeal appeared to be deficient and Quinn had also made

several arguments in support of her appeal which, at first blush, appeared to be arguable,4

we denied the motion to withdraw and ordered her attorney to file a supplemental brief



       2
           See Anders v. California, 386 U.S. 738 (1967).
       3
         Quinn suggests her defense attorneys were constitutionally ineffective. We
generally disfavor considering the effectiveness of trial counsel on direct appeal. See
United States v. Battles, 745 F.3d 436, 457 (10th Cir. 2014). When raised on direct
appeal, these claims “are presumptively dismissible, and virtually all will be dismissed.”
Id. (quotations omitted). Although a narrow exception exists “where the issue was raised
before and ruled upon by the district court” and we have a sufficient factual record, the
exception does not apply here. Id.
       4
        Quinn’s initial pro se objection to the Anders brief did not articulate the law in
support of her arguments or cite the relevant sections of the record on appeal. These
defects were cured in Quinn’s supplemental brief and second amended supplemental
brief.



                                            -2-
addressing the arguments raised in her objection. Since that time, the record has been

supplemented, and Quinn has filed a 55-page supplementary brief and a 75-page second

supplemental brief detailing her claims with citation to the record and the law. Quinn’s

attorney has also responded, stating he fully reviewed the record for the third time, as

well as Quinn’s initial objection to the Anders Brief and her supplemental brief. That

said, he stands by his original position and asks us to reconsider the denial of his motion

to withdraw.

       Quinn’s attorney claims to have engaged in “a diligent and thorough search of the

record for any arguable claim that might support the client’s appeal.” Penson v. Ohio,

488 U.S. 75, 83 (1988) (quotations omitted). After our own thorough review of the

record and all briefs, we conclude that the record is sufficient to determine whether the

appeal is “so frivolous that it may be decided without an adversary presentation.” Id. at

82. No further proceedings are necessary.5 We affirm the district court’s rulings and

grant Quinn’s attorney’s motion to withdraw.

                                    BACKGROUND

       After nearly a decade of wrangling with the Internal Revenue Service (IRS)

regarding payment of individual and employment taxes, Quinn’s case was assigned to an

IRS investigator in 2005. On June 17, 2009, an indictment issued charging Quinn with

       5
        We freely permitted Quinn to brief all issues she considered significant. Her
copious briefing identified any number of legal points, which we have considered. Her
arguments, while unsuccessful, were thoroughly and competently presented. This is,
indeed, a unique Anders case. In the end it received a full adversary presentation.
Because it was thoroughly briefed, we affirm rather than dismiss the appeal as frivolous.



                                            -3-
seven counts of failing to pay over employment taxes to the IRS (in violation of 26

U.S.C. § 7202) and two counts of failing to pay individual income tax (in violation of 26

U.S.C. § 7203). On December 4, 2010, Quinn paid the taxes owed under § 7202. Her

payment6 was followed by a motion to dismiss Counts 1-7 based on that payment. The

district court denied her motion. A superseding indictment was issued on December 22,

2010, decreasing the amount owed under Counts 1-7 by the amount of her payment.

       At trial, Quinn admitted to owing the taxes and not having paid them prior to the

original indictment, but claimed she had never willfully refused to pay. Her defense was

simple: she claimed not to know the failure to pay was a crime and she always intended

to pay at some future time when she had the money to do so. She also claimed her

gambling addiction prevented her from making a rational decision to refuse to pay. The

issue at trial was whether she had willfully refused to pay the taxes she owed.

       To counter her defense, the government introduced testimony from the string of

IRS agents who dealt with Quinn over the years, as well as the IRS investigator. The

testimony and documentary evidence established Quinn had met with IRS agents and had

discussed her failure to pay. She was given opportunities to meet extended deadlines to

clarify or refute the taxes, but did not do so. Instead, when final notices of tax

deficiencies were issued, Quinn availed herself of all avenues to challenge the

deficiencies in order to delay collection. Eventually, she filed bankruptcy to arrest the

proceedings, but the bankruptcy was dismissed when she failed to prosecute the action.

       6
           She did not pay the penalties and accrued interest.



                                              -4-
       There was also evidence of Quinn’s efforts to conceal her assets. At the time she

was aware of her delinquency, she allegedly purchased a lake-view home via her sister,

who was used as a straw purchaser. Despite Quinn’s claims she was merely paying her

sister rent, bank documents revealed the down payment and majority of the mortgage

payments were made shortly after the same amount of funds were taken directly from

Quinn’s law firm trust account. Her sister never lived in the home. In addition, when

Quinn’s law office building was to be sold for delinquent state taxes, her sister paid the

back taxes and Quinn quitclaimed the property to her. As to Quinn’s claim she was

unable to pay the taxes, the government introduced pictures of two of her homes,

evidence she paid her sister $9,000.00 per month (cash) to manage her law office, and

paid $2,000.00 per month for life insurance policies on approximately ten of her nieces

and nephews.

                                      DISCUSSION

A.     Sufficiency of the Indictment/Constructive Amendment

       Quinn claims the amended indictment7 failed to charge a criminal offense and,

therefore, failed to confer subject matter jurisdiction on the court. The title to “Counts 1-

7” stated “(Failure to Pay Over Employment Tax)” and the titles to Counts 8 and 9 stated,

“(Failure to Pay Individual Income Tax).” Quinn contends the failure to include the word




       7
        Quinn also points to failures in the original indictment, but the amended
indictment is the operative document here.



                                            -5-
“willful” in these titles is fatal because it is not a crime to merely fail to pay. It is only a

willful failure to pay which is subject to criminal prosecution.

       The sufficiency of an indictment is reviewed de novo. United Sates v. Gama-

Bastidas, 222 F.3d 779, 785 (10th Cir. 2000). It is true both criminal statutes contain the

word “willful” in their titles. See 26 U.S.C. § 7202 (“Willful failure to collect or pay

over tax”) and § 7203 (“Willful failure to file return, supply information, or pay tax”).

However, the sufficiency of an indictment is determined by applying “practical rather

than technical considerations.” Gama-Bastidas, 222 F.3d at 785 (quotations omitted).

       We consider whether the indictment “sets forth the elements of the offense

charged, puts the defendant on fair notice of the charges against which he must defend,

and enables the defendant to assert a double jeopardy defense.” Id. (quotations omitted).

“The test of the validity of the indictment is not whether the indictment could have been

framed in a more satisfactory manner, but whether it conforms to minimal constitutional

standards.” Id. (quotations omitted).

       Quinn does not claim the superseding indictment did not contain the elements of

the charges. The body of the charges clearly alleged she “willfully failed to pay over to

the Internal Revenue Service the federal income taxes and Federal Insurance

Contributions Act (“FICA”) taxes she withheld from her employees’ wages that were due

and owing to the United States of America” in violation of 26 U.S.C. § 7202 and she

“willfully failed” to pay her personal income tax in violation of 26 U.S.C. § 7203.

Moreover, she acknowledges she understood the charge and could assert a double

jeopardy defense. Her claim rests solely on the title of the charge in the indictment.

                                              -6-
       “If a defendant does not challenge an indictment until after a verdict or guilty plea,

and if he does not assert prejudice, that is, if he had notice of the crime of which he stood

accused, the indictment is to be read with maximum liberality.” Gama-Bastidas, 222

F.3d at 786. An indictment is “sufficient unless it is so defective that by any reasonable

construction, it fails to charge the offense for which the defendant is convicted.” Id.

Here, the grand jury’s intent to charge criminal conduct is plainly stated on the face of the

indictment, thus conferring subject matter jurisdiction. See United States v. Cotton, 535

U.S. 625, 630 (2002) (reiterating subject matter jurisdiction concerns the courts’ statutory

or constitutional power to adjudicate the case). Because the superseding indictment

sufficiently alleged her offense, Quinn’s claim that the court constructively amended the

indictment is also without merit.

B.     Statutory Interpretation of 26 U.S.C. § 7202

       Quinn argues the court erred in denying her motion to dismiss Counts 1-7 because,

once she paid the taxes, she was no longer in violation of the statute. “We review the

district court’s statutory interpretation de novo.” United States v. Rentz, 735 F.3d 1245,

1248 (10th Cir. 2013). The statute reads:

       Any person required under this title to collect, account for, and pay over
       any tax imposed by this title who willfully fails to collect or truthfully
       account for and pay over such tax shall, in addition to other penalties
       provided by law, be guilty of a felony and, upon conviction thereof, shall be
       fined not more than $10,000, or imprisoned not more than 5 years, or both,
       together with the costs of prosecution.




                                            -7-
26 U.S.C. § 7202. As Quinn reminds us, the statute does not contain any reference to a

due date as do other tax statutes, such as 26 U.S.C. § 7203.8 In other words, she says, it

does not specify a point in time when the offense becomes complete. Therefore, with

singular focus, she tells us she could pay the taxes at any time before the verdict, thereby

immunizing herself from continued prosecution.

       The district judge disagreed, reasoning:

       Section 7202 criminalizes the willful “failure . . . to pay over” trust fund
       taxes. Under a common-sense reading, a “failure to pay over” necessarily
       incorporates the concept of a deadline, as the failure must be measured as
       of some particular time. See Salt Lake City v. Western Area Power Admin.,
       926 F.2d 974, 984 (10th Cir. 1991) (“The most fundamental guide to
       statutory construction is common sense.”). The most reasonable and
       logical point at which to note that a “failure” has already occurred is the
       point at or after the due date when the lack of payment has become willful.

(D. Ct. Docket, Case No. 09-CR-20075-JML, Memorandum and Order, # 75 at 3.)

       In the absence of case law specifically on point, the judge noted how this Court

and other circuits apparently accept the concept of a deadline in § 7202 when applying a

statute of limitations found in 26 U.S.C. § 6531(4). Although those courts did not discuss



       8
           26 U.S.C. § 7203 states in relevant part:

       Any person required under this title to pay any estimated tax or tax, or
       required by this title or by regulations made under authority thereof to make
       a return, keep any records, or supply any information, who willfully fails to
       pay such estimated tax or tax, make such return, keep such records, or
       supply such information, at the time or times required by law or
       regulations, shall, in addition to other penalties provided by law, be guilty
       of a misdemeanor . . . .

(emphasis added).



                                              -8-
the absence of an explicit due date in § 7202, their rulings necessarily included this

section as an “offense of willfully failing to pay any tax, or make any return . . . at the

time or times required by law or regulations,” as required by the application of 26 U.S.C.

§ 6531(4). Thus, the judge concluded, this Court and other circuits have understood §

7202 to contain a deadline component.

       We agree with the trial judge’s sound reasoning and add an additional reason why

Quinn’s argument cannot succeed. She contends the statute does not, of itself, say when

the crime is complete and argues a rule of lenity must apply to its interpretation.

However, other than those crimes designated as continuing offenses, “[a] crime is

complete as soon as every element in the crime occurs.” United States v. Reitmeyer, 356

F.3d 1313, 1317 (10th Cir. 2004) (quoting United States v. Payne, 978 F.2d 1177, 1179

(10th Cir. 1992)). Once complete, the crime cannot be undone. Looking to the necessary

elements of a violation of § 7202, (1) the defendant must be the person who is required to

collect, account for, and pay the tax, (2) the tax has become due, and (3) the defendant

willfully fails to submit the payments “required under this title.”9

       Quinn’s myopia conveniently ignores her obligation to collect, account for, and

pay employment taxes quarterly. See United States v. Farr, 536 F.3d 1174, 1176 (10th

Cir. 2008) (“The Internal Revenue Code . . . requires ‘employers’ to deduct from their


       9
        The required payments consist of two parts, the employee’s taxes and the
employer’s contribution. The employee’s taxes must be withheld from the employee’s
pay and, on a quarterly basis, sent to the IRS. Quinn not only failed to pay her share, but
withheld and kept for her own use the moneys deducted from the pay of her employees.



                                             -9-
employees’ wages the employees’ share of FICA and individual income taxes. See

U.S.C. § 3102(a), 3402(a). The employer is liable for the withheld portion of the

employees’ payroll taxes and must pay over the full amount to the government each

quarter. See U.S.C. § 3403”).

       As the jury obviously found, Quinn willfully failed to pay over the money she held

in trust for the government long before she made her payment. Once her non-payment

was willful, her crime was complete. While the fact of a payment may have been

relevant to the jury’s consideration of her willfulness, it did not vitiate her completed

crime. Quinn’s remarkable proposition that an employer can ignore tax liabilities until

just moments before the jury reaches a verdict staggers the imagination.

C.     Jury Instructions

       Quinn claims the judge erred in failing to instruct on any of her three defense

theories: (1) there was no requirement to pay the tax at any certain time and she paid

them; (2) her gambling addiction prevented her from paying sooner; and (3) she had a

good faith belief her actions were not criminal. Quinn acknowledges she did not object

to the jury instructions and, therefore, we apply a plain error standard of review. To

establish plain error, Quinn must show “(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.” United States v. Williamson, --- F.3d ---, No. 13-

2023, 2014 WL 998409 *4 (10th Cir. Mar. 17, 2014) (quotations omitted).




                                             - 10 -
       Given our discussion above, Quinn’s claims based on instructions, or lack thereof,

regarding the defense of her last-minute payment are without merit. Her claim the judge

failed to correctly instruct the jury on her good faith defense is also without merit.

       Jury Instruction No. 13 stated:

       In every crime there must exist a union or joint operation of act and intent.
       The burden is always upon the government to prove both act and intent
       beyond a reasonable doubt.

       An essential element of the crimes charged is that defendant must have
       acted willfully. The word “willfully” means voluntarily and intentionally
       in violation of a known legal duty. In other words, the defendant must have
       acted voluntarily and intentionally and with the specific intent to do
       something she knew the law prohibited, or fail to do something she knew
       the law required; that is to say, with intent either to disobey or disregard the
       law.

       Conversely, the defendant did not act willfully if you find that she acted or
       failed to act because of negligence (even gross negligence), inadvertence,
       accident, mistake, reckless disregard for the requirements of the law,
       ignorance of the law, or a good-faith belief, based on a misunderstanding of
       the law, that she was not violating any of the provisions of the tax laws.

       The question of intent is a matter for you, as jurors, to determine. Intent is
       a state of mind, and since it is not possible to look into a person’s mind to
       see what went on, the only way you have of arriving at the intent of a
       defendant is for you to take into consideration all of the facts and
       circumstances shown by the evidence, including the exhibits, and determine
       from all such facts and circumstances what the intent of the defendant was
       at the time in question.

(Dist. Ct. Docket, Case No. 09-CR-20075-JML, Jury Instructions, Doc. # 102 at 17-18.)

       The court did not fail “to give any good faith defense instruction . . . which

conveyed to the jury its meaning,” as Quinn claims. (Quinn’s Pro Se Second Amended

Objections to Anders Br. at 46.) Nonetheless, she complains the instruction is flawed

because: (1) it “did not explain specific intent”; (2) it did not say the government had to


                                            - 11 -
prove “Quinn had knowledge of the statutes she was charged with violating or the

existence and terms of the statutes”; and (3) the instruction did not convey “that Quinn

willfully and knowingly engaged in criminal behavior or that she intended to do

something unlawful.”10 (Id.) But Quinn’s suggested improvements are incorrect.

       “[A]s we have previously noted, instructing in terms of specific intent has been

disfavored by the courts because of the confusing and ambiguous nature of such an

instruction.” United States v. Winchell, 129 F.3d 1093, 1096 (10th Cir. 1997) (quotations

omitted). We encourage instead, “instructions which adequately apprise the jury of the

mens rea element of the offense, and which define each element of the offense clearly

and accurately.” Id. at 1097 (quotations and citation omitted). The court need not give a

separate specific intent instruction. Id.

       Here, the court explained the specific intent contained in the tax statutes as it has

been articulated by the Supreme Court; the standard for the statutory willfulness

requirement is the “voluntary, intentional violation of a known legal duty.” Cheek v.

United States, 498 U.S. 192, 201 (1991) (quoting United States v. Bishop, 412 U.S. 346,

360 (1973) and United States v. Pomponio, 429 U.S. 10, 12 (1976)). Quinn’s assertion

that “willfulness requires proof that the defendant actually knew of the specific




       10
          Quinn finds the court’s failure to give a theory of defense instruction on her
pathological gambling “particularly troubling” because evidence of gambling tends to be
prejudicial. Quinn does not explain what sort of instruction would have been appropriate
in this case and our own research has found no case law illuminating this proposition.



                                            - 12 -
provisions . . . [she] is charged with violating” is incorrect.11 (Quinn’s Pro Se Second

Amended Objections to Anders Br. at 45.) “[T]he jury [is] free to consider any

admissible evidence from any source showing that [she] was aware of [her] duty” under

the law to pay over delinquent taxes. Cheek, 498 U.S. at 611. While this may include

“evidence showing [her] awareness of the relevant provisions of the Code or regulations,

of court decisions . . ., of authoritative rulings of the Internal Revenue Service, or of any

contents of the personal income tax return forms and accompanying instructions” which

inform her legal duty, she need not know the exact provision she is violating. Id.

“Knowledge of the law’s demands does not depend on knowing the citation any more

than ability to watch a program on TV depends on knowing the frequency on which the

signal is broadcast.” United States v. Cavins, 543 F.3d 456, 459 (8th Cir. 2008) (quoting

United States v. Patridge, 507 F.3d 1092, 1094 (7th Cir. 2007)). “In the end, the issue is

whether, based on all the evidence, the Government has proved that the defendant was

aware of the duty at issue . . . .” Cheek, 498 U.S. at 611. The instructions at trial

thoroughly and correctly informed the jury of the government’s burden and Quinn’s

theory of defense. In any event, she admitted knowing she had a legal duty to timely pay

her taxes and did nothing to comply until indicted.



       11
          We note, after carefully reading Quinn’s arguments, she may be suffering under
a mistaken belief as to the extent of the knowledge necessary for conviction. She
repeatedly states she did not know she was engaging in “criminal” conduct. Ignorance of
a legal duty is a defense, but the fact the defendant “was not aware of the criminal
penalties” is not. United States v. Rosenfeld, 469 F.2d 598, 600 n. 1, 601 (3d Cir. 1972).



                                            - 13 -
       Quinn also claims the court erred when it failed to give a limiting instruction

regarding the summaries of her bank account activity. Federal Rule of Evidence 1006

provides:

       The proponent may use a summary, chart, or calculation to prove the
       content of voluminous writings, recordings, or photographs that cannot be
       conveniently examined in court. The proponent must make the originals or
       duplicates available for examination or copying, or both, by other parties at
       a reasonable time and place. And the court may order the proponent to
       produce them in court.

       Quinn did not object to the use of summaries at trial and does not do so now.

Instead, she claims the court erred when it failed to give a limiting instruction as to the

import of the summaries, despite the absence of any request for the court to do so.12

Again, we review for plain error and find no error here. Quinn does not claim she was

unaware of the summaries, which were based on record exhibits; the preparers of the

summaries were subjected to extensive cross examination at trial; and Quinn fails to



       12
          For example, in United States v. Thomas 518 F.3d 832, 859 (10th Cir. 2008),
the court gave the following instruction:

       Charts or summaries have been prepared by the government and shown to
       you during the trial for the purpose of explaining facts that are allegedly
       contained in books, records, and other documents which are in evidence in
       the case. Such charts or summaries are not evidence in this trial or proof of
       any fact. If you find that these charts or summaries [do] not correctly reflect
       facts or figures shown by the evidence in the case, the jury should disregard
       the charts or summaries.

       In other words, such charts or summaries are used only as a matter of
       convenience for you and to the extent that you find they are not, in truth,
       accurate summaries of facts or figures shown by the evidence in the case,
       you can disregard them entirely.



                                            - 14 -
allege how she was prejudiced by the lack of instruction.13 See United States v. Renteria,

720 F.3d 1245, 1253 (10th Cir. 2013) (affirming district court’s admission of charts and

summaries even though no limiting instruction was given), cert. denied, 134 S. Ct. 969

(2014).

D.     Sufficiency of the Evidence

       Quinn contends the evidence was insufficient to show she voluntarily and

intentionally violated a known legal duty. “We review this issue de novo to determine

whether, viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crimes beyond a reasonable

doubt.” United States v. Doddles, 539 F.3d 1291, 1293 (10th Cir. 2008) (quotations

omitted). Any possible conflicts in the evidence are resolved in favor of the government

and we “assume . . . the jury found that evidence credible.” Id. at 1293-94. “While the

evidence supporting the conviction must be substantial and do more than raise a mere

suspicion of guilt, it need not conclusively exclude every other reasonable hypothesis and

it need not negate all possibilities except guilt.” United States v. Burkley, 513 F.3d 1183,

1188 (10th Cir. 2008) (quotations omitted).

       The trial judge denied Quinn’s post-trial motion for judgment of acquittal based on

the insufficiency of the evidence:

       Defendant, an attorney, conceded in her testimony that she knew she had a

       13
         To the extent Quinn argues her attorney did not adequately cross-examine the
witnesses so the jury could fairly understand the complete picture, the effectiveness of
counsel is not at issue on direct appeal.



                                           - 15 -
       duty to pay over the employment taxes and to pay income taxes by certain
       deadlines, and she in fact filed tax returns and forms without the
       accompanying payments. The jury could reasonably infer from the
       evidence of defendant’s dealings with the IRS that she was attempting to
       put off having to pay for as long as she could. The jury also heard evidence,
       including evidence of her gambling and the expensive homes in which she
       lived, that defendant had access to significant funds that she could have
       paid to the IRS. The Government also presented evidence suggesting that
       defendant purchased one home in her sister’s name, and the jury could
       reasonably infer that defendant was attempting to hide her assets from the
       IRS. At trial, defendant relied on her testimony that she had a gambling
       addiction, but the jury was free either not to believe that testimony or to
       conclude that she acted willfully despite the addiction.

       The Court concludes that from the evidence, the jury could reasonably have
       found beyond a reasonable doubt that defendant voluntarily and
       intentionally failed to pay the IRS when she knew such payments were
       required by law, and thus that she acted willfully. Accordingly, the Court
       denies defendant’s motions for a judgment of acquittal.

(Dist. Ct. Docket, Case No. 09-CR-20075-JML, Memorandum and Order, # 128 at 4.)

Careful review of the entire record and Quinn’s arguments reveal the district judge’s

conclusion to be unassailable.

E.     Admission of Evidence

       Quinn claims the district judge erred in admitting evidence which did not directly

negate her three specific defenses enumerated above. We review the district court’s

evidentiary rulings, upon objection, for abuse of discretion. United States v. Becker, 230

F.3d 1224, 1228 (10th Cir. 2000). If no contemporaneous objection was made at trial, we

review for plain error. United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007).

Federal Rules of Evidence Rule 402 states relevant evidence is evidence having any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable than it would be without the evidence. Under Rule 403,


                                          - 16 -
however, relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury.

        Quinn argues the photographs of her residences were inadmissible because her

“problems paying her taxes began at least 10 years before she lived in either of the

houses.” (Quinn’s Pro Se Second Amended Objections to Anders Br. at 55.) But the fact

she lived in expensive homes at the same time she said she did not pay taxes because she

could not afford to pay is relevant to whether her failure to pay was willful and this

evidence was not unfairly prejudicial. Quinn also claims her prior tax liability was

inadmissible under Fed. R. Evid. 404(b) because her tax liability for years other than

those charged in the indictment did not relate to any of the proper purposes for admission.

Evidence showing her knowledge of ongoing tax liability, to which she was able to

respond with an acute knowledge of rules and regulations regarding her rights to contest

and forestall that liability, as well as her attempts to conceal assets, is certainly relevant to

an “absence of mistake” regarding her legal duty to pay taxes.

F.      Prosecutorial Misconduct

        Quinn maintains the prosecution presented false and deceptive evidence denying

her a fair trial. Specifically, she claims: (1) the government’s exhibits were incomplete

or misleading; (2) government witnesses testified in a manner that contradicted the

documentary evidence; (3) one government witness failed to admit he knew Quinn had

gambling problems and the extent of that problem; (4) the “red flags” in account activity

leading to the investigation were not actually fraudulent; and (5) the prosecutor

                                             - 17 -
improperly elicited testimony regarding her credibility and the commission of other tax

crimes.

       We review the trial court’s decision to grant or deny a motion for a new trial under

an abuse of discretion standard, viewing the evidence in the light most favorable to the

prevailing party. Tanberg v. Sholtis, 401 F.3d 1151, 1160 (10th Cir. 2005). Our review

of the record confirms the propriety of the district judge’s acts; he considered these

arguments and correctly denied her motion for a new trial. Quinn’s appellate arguments

continue to mischaracterize portions of the record and reach unfounded conclusions of

prosecutorial wrongdoing. These claims are without merit.14

G.     Sentencing

       The sentencing judge declined to apply enhancements, denied Quinn’s requests for

several downward departures or a downward variance, and applied the mid-range level of

imprisonment—36 months—suggested under the guidelines. Quinn now claims he

procedurally and substantively15 erred in denying her a reduction for acceptance of

responsibility, USSG §3E1.1, and denying a downward departure under USSG §5H1.3

(mental and emotional conditions) or §5K2.13 (diminished capacity).




       14
          Quinn also claims the district court erroneously allowed Agent Nguyen to testify
as an expert witness and allowed testimony outside his role as an expert. Agent Nguyen
did not testify as an expert.
       15
            Quinn does not support her substantive error claim with argument or legal
citation.



                                            - 18 -
       1.     Acceptance of Responsibility

       Sentencing guidelines §3E1.1(a) permits a two-level downward adjustment “[i]f

the defendant clearly demonstrates acceptance of responsibility for [her] offense.” USSG

§3E1.1(a). Quinn “bore the burden of proving her entitlement to an acceptance-of-

responsibility adjustment by a preponderance of the evidence.” Battles, 745 F.3d at 458.

We “reverse on this basis only for clear error, which means that on the entire evidence we

are left with the definite and firm conviction that a mistake has been committed.” Id.

(citations and quotations omitted).

       Quinn claims she had always admitted her duty to pay taxes but had not paid.

Thus, according to her, the district judge erred in concluding her failure to admit she

acted willfully precluded the application of the acceptance of responsibility reduction.

Her conveniently contrived argument is simply wrong.

       The judge determined Quinn “has never admitted that she acted willfully, and that

is an issue that is tied up with the facts that were contested at the trial of the case. Thus,

there’s no basis for application of this reduction here.” (R. Vol. 2 at 915 (citing United

States v. Bailey, 327 F.3d 1131, 1148 (10th Cir. 2003) (affirming denial of reduction

where defendant challenged at trial the factual issue of intent to defraud), and United

States v. Day, 223 F.3d 1225, 1230-31 (10th Cir. 2000) (affirming denial of reduction

where, although defendant did not deny committing the acts, he never admitted his

culpability for those acts).) We have previously determined the “rare situation where a

defendant goes to trial but nonetheless receives a §3E1.1 adjustment does not




                                             - 19 -
contemplate a defendant’s challenge to the factual element of intent.” Battles, 745 F.3d

459 (quotations omitted). This claim is without merit.

       2.     Diminished Mental Capacity

       Quinn requested a downward departure and/or variance based on her diminished

mental capacity. She claimed her severe depression caused her gambling problem which,

in turn, blinded her to her legal responsibilities. According to Quinn, her pathological

gambling, caused by her severe depression, prevented her from controlling her behavior

to conform to the law.

       Several inter-related guideline provisions address the court’s consideration of a

downward departure due to mental and emotional conditions and diminished capacity.

See United States v. Sheehan, 371 F.3d 1213, 1216 (10th Cir. 2004). Section 5H1.3 of

the guidelines advises: “Mental and emotional conditions are not ordinarily relevant in

determining whether a sentence should be outside the applicable guideline range, except

as provided in Chapter Five, Part K, Subpart 2 (Other Grounds for Departure).” The last

sentence found in USSG §5H1.4 states, “[a]ddiction to gambling is not a reason for a

downward departure.”

       Similarly, §5K2.0 states in relevant part: “[A]n offender characteristic . . . that

is . . . not ordinarily relevant in determining whether a sentence should be outside the

applicable guideline range may be relevant to this determination if such characteristic or

circumstance is present to an unusual degree and distinguishes the case from the

‘heartland’ cases covered by the guidelines.” Section 5K2.0(d) adds, “Prohibited

Departures.—Nothwithstanding . . . any other provision in the guidelines, the court may

                                            - 20 -
not depart from the applicable guideline range based on . . . . the last sentence of

5H1.4.”).

       However, the last provision addresses diminished capacity, separate and apart

from the existence of a mental or emotional condition. Section 5K2.13 provides:

       § 5K2.13. Diminished Capacity (Policy Statement):

       A downward departure may be warranted if (1) the defendant committed
       the offense while suffering from a significantly reduced mental capacity;
       and (2) the significantly reduced mental capacity contributed substantially
       to the commission of the offense. Similarly, if a departure is warranted, . . .
       the extent of the departure should reflect the extent to which the reduced
       mental capacity contributed to the commission of the offense.

       However, the court may not depart below the applicable guideline range if
       (1) the significantly reduced mental capacity was caused by the voluntary
       use of drugs or other intoxicants; (2) the facts and circumstances of the
       defendant's offense indicate a need to protect the public because the offense
       involved actual violence or a serious threat of violence; (3) the defendant’s
       criminal history indicates a need to incarcerate the defendant to protect the
       public . . . .

We have recognized downward “departures pursuant to § 5K2.13 are a subset of

departures allowed under § 5H1.3 based on mental and emotional conditions. While

other departure requests based on mental and emotional conditions may be governed by §

5K2.0, diminished capacity claims are governed solely by § 5K2.13.” Sheehan, 371 F.3d

1218. Quinn acknowledges a request for departure specifically based on §5K2.13 was

not presented to the district judge.

       Even so, Quinn argues the judge did not appreciate the difference between her

gambling as a mental or emotional condition and her diminished capacity due to her

gambling caused by depression. Quinn says she submitted psychiatric reports stating she



                                            - 21 -
suffered major depression causing her gambling addiction, and that “her pathological

gambling significantly reduced her mental capacity to control her behavior so her taxes

would be paid according to law.” (Quinn’s Pro Se Second Amended Objections to

Anders Br. at 72 (quotations omitted).) She argues, based on this evidence, the judge

erred in finding she was not entitled to a departure under USSG §5K2.13. We disagree.

      The judge properly recognized a departure was unwarranted solely due to her

gambling under the sections dealing with her mental and emotional condition. However,

he also determined:

      [A]lthough Dr. Logan diagnosed chronic depression, most of his testimony
      concerned his diagnosis of a gambling disorder. He did not testify at trial
      that her depression had any effect on her ability to conform with the law or
      to pay her taxes. . . . Her other conduct certainly indicated that she was
      able to deal with most of her responsibilities in her life, as she carried on a
      successful law practice, she acquired property, [and] she functioned in
      society. The one thing she didn't seem to be able to do was to pay her
      taxes. I think my conclusion from the totality of the evidence that I
      observed was that she didn’t pay the taxes because she preferred to use that
      money for something else than paying taxes. That may have been to feed a
      gambling addiction; it may have been for other reasons. But I don’t think it
      was because she had some chronic depression that caused her not to be able
      to cope with the responsibilities of her life, so I do not find that she has
      shown that she suffered from depression to an [un]usual degree so as to
      distinguish her case from typical cases governed by the guidelines, nor do I
      think that under Section 3553 her depression, which undoubtedly arises
      from a particularly traumatic background of her youth or her gambling
      addiction, are such unusual circumstances in this court’s experience in
      seeing offenders before it as to justify some lower offense. . . .

      [A]lthough Ms. Quinn has herself had some bad things happen in her life,
      again I come back to the fact that she was perfectly able to cope with her
      other responsibilities here, and she was not so able to cope with her
      taxpaying responsibilities, and I derive the conclusion that it was willful on
      her part, that she thought as long as she could get away with not paying
      those taxes -- and she may well have believed that there wasn’t criminal
      responsibility for it, although she wasn't required to know that under the

                                          - 22 -
       law. She may have thought she was getting an interest-free loan from the
       government for as long as she could keep that money and not have them
       collect it from her, as they attempted to do by -- or as she may have
       attempted to prevent them from doing by the conduct that she engaged in.
       So I find no basis to either depart or vary as a result of her particular
       circumstances of depression or gambling.

(R. Vol. 2 at 923-25.)

       In other words, the judge determined Section §5K2.13 allows a downward

departure if the offense was committed while suffering from a significantly reduced

mental capacity which “contributed substantially to the commission of the offense.” See

United States v. Sadolsky, 234 F.3d 938, 942-43 (6th Cir. 2000) (affirming the application

of §5K2.13 based on a gambling addiction). The judge did not refuse to depart based on

misunderstanding that her gambling addiction and depression could not be considered

under a diminished capacity departure. Rather, he found neither her severe depression

nor her gambling addiction to have contributed substantially to the commission of the

offense. As he noted, despite Quinn’s mental condition, she managed to maintain herself

and her family in a comfortable lifestyle, run a profitable legal practice, pay life insurance

premiums for numerous relatives, and pay her sister, a non-lawyer, $9,000.00 per month

in cash to manage Quinn’s law office. In other words, the judge was right: Quinn

willfully refused to meet her legal duty because “she preferred to use that money for

something else than paying taxes.” His conclusion is fully supported by the record and

well within his discretion.




                                            - 23 -
      AFFIRMED. Quinn’s motion to consider her second supplemental objection to

the Anders brief and defense counsel’s motion to withdraw are GRANTED. Quinn’s

remaining motions are denied as moot.

                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




                                        - 24 -
