from the United States District Court for the Northern
District of Oklahoma (D.C. No. 4:17-CR-00010-GKF-1)
L. Derryberry, Assistant Federal Public Defender (Julia L.
O'Connell, Federal Public Defender, with him on the
briefs), Office of the Federal Public Defender for the
Northern District of Oklahoma, Tulsa, Oklahoma, appearing for
Jeffrey Gallant, Assistant United States Attorney (R. Trent
Shores, United States Attorney, and Kevin C. Leitch,
Assistant United States Attorney, on the brief), Office of
the United States Attorney for the Northern District of
Oklahoma, Tulsa, Oklahoma, appearing for Appellee.
BRISCOE, LUCERO, and MORITZ, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
a six-day jury trial, Shawn Gorrell was convicted of three
counts of wire fraud, 18 U.S.C. § 1343, and three counts
of tax evasion, 26 U.S.C. § 7201. In this appeal he
challenges only his three convictions for tax evasion and he
seeks a new trial only on those counts. He frames his issue
in this way: "Whether plain error occurred when the jury
instructions directed the jury to consider specified theories
of an affirmative act (an element of tax evasion), which were
legally invalid theories of guilt as a matter of law, the
jury was instructed to be unanimous in finding an affirmative
act, and the jury returned a general verdict of guilt."
Gorrell Opening Br. at 1. Exercising jurisdiction pursuant to
28 U.S.C. § 1291, we affirm.
briefly recount the relevant facts underlying Gorrell's
convictions before summarizing the provided jury
Gorrell was an insurance salesman based in Tulsa, Oklahoma.
His father was an accountant in Tulsa whose clients included
several dentists and Gorrell sold insurance to some of them.
In 2009, Gorrell began to pitch investments to these dentists
that were outside of his typical insurance products. Some
dentists initially gave Gorrell modest sums to invest, but
later the amounts ballooned to hundreds of thousands of
these funds were placed in a legitimate investment known as
the Tax Credit Funding Group ("TCFG"). TCFG was
started by John Walsh in 2011. The premise behind TCFG was
simple: the federal government provided certain tax credits
to businesses affected by Hurricane Katrina, and TCFG
provided tax refund anticipation loans to these eligible
businesses. One of Walsh's friends mentioned that Gorrell
was interested in investing in TCFG, so Walsh offered the
investment opportunity to him. Gorrell subsequently invested
$200, 000 in TCFG on behalf of his clients.
2011, Walsh began planning a second fund, Tax Credit Funding
Group II ("TCFG II"). Gorrell invested another
$200, 000 in TCFG II. But TCFG II never really got off the
ground, and Walsh returned the second $200, 000 investment to
Gorrell in July 2011. Walsh wound down TCFG in December 2011
and returned all profits and principal to Gorrell by February
2012. But rather than return these monies to his investors,
Gorrell kept both the profit or principal from the TCFG
investment as well as the funds he was given to invest in
TCFG II. He was also misusing investor funds in other ways.
Carol Guies, a director of examination and inspections at the
Oklahoma Department of Securities, testified at trial that
from April 2011 to October 2012 Gorrell engaged in risky day
trading through a personal E*Trade account. Gorrell initially
funded the E*Trade account with his own money (and investor
funds from TCFG), but later deposited the investors'
money directly into the account. The investors involved had
not given him permission to use their funds in this way.
Sanders, a special agent with the Internal Revenue Service,
also testified at trial. Sanders testified that he examined
various financial accounts belonging to Gorrell, including
his personal Bank of Oklahoma account, several personal Chase
Bank accounts, his personal E*Trade account, and a business
account at the Bank of Oklahoma for TCFG funds. There was
ample testimony given throughout the trial that Gorrell
commingled the investors' money and his business funds
with his personal bank accounts and E*Trade
government also provided evidence at trial that Gorrell
stopped having his father prepare his tax returns. For
several years, Gorrell's father (an accountant) had
prepared Gorrell's tax returns for free. However, Gorrell
later hired a different tax preparer, the Tax Defense
Network, in 2013 to help him file outstanding and amended tax
returns for the 2009, 2011, and 2012 tax years. Naydali
Maldonado-Hurst, a certified public accountant with the Tax
Defense Network, and Mark Giles, a tax analyst with the Tax
Defense Network, testified at trial that Gorrell exhibited a
pattern of not providing the service with the information it
needed to prepare his tax returns despite repeated email
communications over several weeks; that Gorrell eventually
provided unsubstantiated statements regarding investment
income; that several of Gorrell's explanations regarding
his financial activity and income did not align with the
records he provided; and that even when pressed Gorrell
failed to provide documentation regarding his trading
government also presented evidence at trial regarding
Gorrell's unreported income in the 2009, 2011, and 2012
tax years. In 2009, Gorrell received $50, 000 from one
investor. Gorrell deposited these funds into his
business's bank account, and in April 2009 he began to
transfer funds from this account to his personal bank
account. He then used these funds for personal expenses. The
government produced testimony at trial that, based on this
activity, Gorrell failed to report $50, 000 in taxable income
for the 2009 tax year.
2011, Gorrell received $880, 000 from investors. He returned
approximately $235, 000 to these investors during the year.
However, he also used the investors' funds for personal
expenses such as day trading through an E*Trade
account.Government witnesses testified that, based
on these financial records, Gorrell failed to report $377,
708 in taxable income in the 2011 tax year.
2012, Gorrell received more than $1, 300, 000 from investors.
While he returned approximately $227, 000 to these investors,
he also used the investors' funds for personal expenses,
including day trading through his E*Trade account, personal
credit card payments, and loan payments. Government
witnesses testified that, based on his failure to report the
more than $1, 000, 000 in appropriated funds belonging to
investors as taxable income, Gorrell failed to pay nearly
$373, 000 in taxes for the 2012 tax year.
instructing the jury, the district court incorporated the
affirmative act allegations contained in the Superseding
Indictment, the elements of tax evasion, and the requirement
that the jury be unanimous in its determination of the
affirmative act that formed the basis of the conviction for
each count. The jury returned a unanimous general guilty
verdict on each count. Given its general verdict, the jury
did not identify which affirmative act formed the basis for
each tax evasion conviction. Gorrell argued that if any of
the four affirmative acts he identified are legally
insufficient, his convictions are invalid and he is entitled
to a new trial. The government responds that each affirmative
act incorporated into the jury instructions is legally
sufficient to sustain Gorrell's convictions.
Instruction Number 18 lists the four elements of tax evasion
under 26 U.S.C. § 7201. Instruction Number 18 provides:
To find the defendant guilty of tax evasion, you must be
convinced that the government has proved each of the
following elements beyond a reasonable doubt:
FIRST: The Defendant owed substantial income tax in
addition to the tax liability which he reported on his income
tax return for the year ...