UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4358

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD JAENSCH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:11-cr-00158-GBL-1)

Argued: September 20, 2013 Decided: November 14, 2013

Before GREGORY and DUNCAN, Circuit Judges, and Samuel G. WILSON, 

United States District Judge for the Western District of 

Virginia, sitting by designation.

Vacated in part, affirmed in part, and remanded with 

instructions by unpublished opinion. Judge Duncan wrote the 

opinion, in which Judge Gregory and Judge Wilson joined.

ARGUED: Alan J. Cilman, Fairfax, Virginia; Marvin David Miller, 

LAW OFFICE OF MARVIN D. MILLER, Alexandria, Virginia, for 

Appellant. Gregory Victor Davis, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kathryn 

Keneally, Assistant Attorney General, Frank P. Cihlar, Chief, 

Criminal Appeals & Tax Enforcement Policy Section, Elissa HartMahan, Tax Division, Washington, D.C., Alexander R. Effendi, Tax 

Division, UNITED STATES DEPARTMENT OF JUSTICE, Alexandria, 
2

Virginia; Neil H. MacBride, United States Attorney, OFFICE OF 

THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

DUNCAN, Circuit Judge:

Richard Earl Jaensch was convicted by a federal jury of one 

count of corruptly endeavoring to impede the due administration 

of the tax laws under 18 U.S.C. § 7212(a), (“Count 1”), one 

count of filing a false claim for a refund under 18 U.S.C. § 

287, (“Count 2”), and four counts of willful failure to file a 

tax return under 26 U.S.C. § 7203, (“Counts 3-6”). He was 

sentenced to thirty-six months’ imprisonment and two years’

supervised release for Count 1, thirty-six months’ imprisonment 

and two years’ supervised release for Count 2, and twelve 

months’ imprisonment and one year’s supervised release for each 

of Counts 3, 4, 5, and 6. All sentences were to run 

concurrently for a total term of thirty-six months’ imprisonment 

and two years’ supervised release.

Jaensch appeals Counts 1 and 2 on substantive grounds and

appeals all of his convictions on the basis of evidentiary and 

instructional errors. For the reasons that follow, we vacate 

Jaensch’s conviction under Count 1, affirm as to all other 

counts and remand for rehearing of Count 1 and resentencing of 

all counts.
4

I.

A.

Beginning in 2001, Jaensch stopped paying federal income 

taxes. Although he earned income as a self-employed plumber, 

Jaensch did not file federal income tax returns for the taxable 

years of 2002 through 2008. Jaensch prevented the individuals 

who hired him for plumbing projects from filing tax documents by 

withholding his social security number. He joined a taxprotestor organization and attended tax-protest seminars. 

Although Jaensch consulted a professional accountant who 

informed him that his beliefs concerning his liability for 

federal income taxes were meritless, he did not resume paying 

his taxes.

Based on his tax theories, Jaensch filed or caused his wife 

to file a number of documents purporting to support his and her 

tax-exempt statuses with state and federal agencies from 2005 to 

2009. Among other documents, on April 15, 2009, Jaensch filed a 

tax return for the 2008 taxable year claiming a refund of 

$774,052.00. On July 22, 2009, the IRS sent Jaensch a letter 

informing him that his refund claim was frivolous and that he 

was required to submit a corrected tax return within 30 days to 

avoid a civil penalty. Jaensch submitted a second 2008 tax 

return in August of 2009 reporting $113.00 in taxable income. 

Jaensch was indicted on March 23, 2011.
5

B.

Jaensch filed numerous pretrial motions seeking to dismiss 

the indictment in whole and in part, to strike surplusage in the 

indictment, and to admit witnesses as experts. The district 

court denied Jaensch’s motions to dismiss, granted his motion to 

strike surplusage from Count 1, and disallowed his proposed 

expert testimony.

At trial, Jaensch objected to the district court’s decision 

to admit evidence of his prior conviction for production of a 

false identification document under 18 U.S.C. § 1028(a) and its 

decision to exclude, in part, the lay testimony of witness 

Brandon Eggleston, one of Jaensch’s employers. Jaensch also 

objected to the jury instructions on a number of grounds. The 

district court overruled all of Jaensch’s objections, and this 

appeal followed.

II.

Jaensch raises a number of arguments on appeal. He 

challenges the district court’s refusal to dismiss Count 1 on 

facial and as-applied constitutional grounds. He also 

challenges the district court’s refusal to dismiss Count 2 on 

the ground that the Government was estopped from prosecuting him 

on that charge. He argues that the district court’s evidentiary 

rulings concerning his prior conviction and the exclusion of his 
6

lay and expert witness testimony constituted abuses of 

discretion. Finally, he contends that the district court’s jury 

instructions improperly stated and defined the elements of Count 

1, improperly failed to give a good faith instruction on Count 

2, and incorrectly defined good faith as it applied to Counts 1, 

3, 4, 5, and 6.

We review a challenge to the constitutionality of a statute 

de novo. United States v. Sun, 278 F.3d 302, 308 (4th Cir. 

2002). We review the district court's ruling on a motion to 

dismiss an indictment de novo. United States v. Al Sabahi, 719 

F.3d 305, 309 (4th Cir. 2013). We review evidentiary rulings 

for abuse of discretion and “‘will only overturn an evidentiary 

ruling that is arbitrary and irrational.’” United States v. 

Cone, 714 F.3d 197, 219 (4th Cir. 2013) (quoting United States 

v. Cloud, 680 F.3d 396, 401 (4th Cir. 2012)). “[We] review a 

district court's refusal to give a jury instruction for abuse of 

discretion ... [however] we conduct a de novo review of any 

claim that jury instructions incorrectly stated the law.” 

United States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012) 

(internal citations omitted).
7

III.

A.

We turn first to Jaensch’s conviction under Count 1 of the 

indictment, charging a violation of 18 U.S.C. § 7212(a). Count 

1 alleges Jaensch “did corruptly endeavor to obstruct and impede 

the due administration of the internal revenue laws by 

committing acts including but not limited to” those listed. The 

indictment then lists thirteen acts that Jaensch allegedly 

committed in an attempt to obstruct or impede administration of 

the Internal Revenue Code. Jaensch assigns a number of 

substantive and procedural errors to this Count. Because we 

conclude that Jaensch’s Count 1 conviction must be vacated on 

the ground that the district court misstated the law in its jury 

instructions, we need not address Jaensch’s remaining arguments.

We review jury instructions “holistically”; a “‘single 

instruction to a jury may not be judged in artificial isolation, 

but must be viewed in the context of the overall charge.’” Noel 

v. Artson, 641 F.3d 580, 586 (4th Cir. 2011) (quoting Henderson 

v. Kibbe, 431 U.S. 145, 152 n.10 (1977)). We must determine 

“‘whether the instructions construed as a whole, and in light of 

the whole record, adequately informed the jury of the 

controlling legal principles without misleading or confusing the 

jury to the prejudice of the objecting party.’” Id. (quoting 
8

Bailey v. Cnty. of Georgetown, 94 F.3d 152, 156 (4th Cir. 

1996)).

A “failure to properly instruct on an element of the 

offense is a constitutional error subject to harmlessness 

review.” Bereano v. United States, 706 F.3d 568, 578 (4th Cir. 

2013). “We find an error in instructing the jury harmless if it 

is ‘clear beyond a reasonable doubt that a rational jury would 

have found the defendant guilty absent the error.’” United 

States v. Ramos-Cruz, 667 F.3d 487, 496 (4th Cir. 2012) (quoting 

Neder v. United States, 527 U.S. 1, 18 (1999)).

In this case, the district court’s instruction on Count 1 

misled the jury as to the controlling law and we cannot say that 

the error was harmless. To prove a violation of § 7212(a), “the 

government must prove that the defendant: 1) corruptly; 2) 

endeavored; 3) to obstruct or impede the administration of the 

Internal Revenue Code.” United States v. Wilson, 118 F.3d 228, 

234 (4th Cir. 1997). To act corruptly is to act “with the 

intent to secure an unlawful benefit either for oneself or for 

another.” Id.

The district court’s instructions do not properly explain 

the Government’s burden to the jury. Violation of § 7212(a) is 

a crime of specific intent. A defendant must not only endeavor 

to impede due administration but must do so with the specific 

intent to secure an unlawful benefit. See Wilson, 118 F.3d at 
9

234. Although the district court correctly defined “due 

administration,” “obstruct or impede,” and “corruptly,” it 

instructed the jury that it could convict Jaensch by finding 

that he committed acts listed in the indictment without finding 

that he committed those acts with the requisite intent to secure 

an unlawful benefit.

The jury instructions state, in relevant part, that:

If the jury concludes that the government did prove 

beyond a reasonable doubt that one, the defendant 

employed at least one act set forth in Section 1-M 

through U of the indictment and that the defendant did 

commit an act identified in Section 1-V through Y of 

the indictment, and two, that the defendant acted 

knowingly and intentionally, then the jury must find 

the government [sic] guilty of the offenses in Count 1 

of the indictment.

J.A. 608.

This instruction improperly transforms violation of §

7212(a) into a crime of general intent. The import of the 

instruction as given is that the jury should convict if it finds

that Jaensch committed acts listed in the indictment knowingly 

and intentionally, not that he committed them for a specific 

purpose or to achieve a specific result.

The Count 1 instruction, when viewed in light of the entire 

record, misled the jury as to the controlling legal principles 

necessary to make its determination. Because Jaensch argued 

that he acted in good faith, we cannot say beyond a reasonable 

doubt that a rational jury would have convicted Jaensch under
10

the stringent specific intent standard required by § 7212(a) 

merely because it convicted him under a lesser general intent 

standard. Jaensch’s conviction under Count 1 of the indictment 

will be VACATED and remanded for further proceedings.1

B.

We turn next to Count 2 of the indictment. Jaensch argues 

that the district court erred by refusing to dismiss Count 2 on 

the ground of promissory estoppel and by failing to give a good 

faith instruction as to that count.

i.

Jaensch contends that the district court erred by refusing 

to dismiss Count 2. He argues that the Government was estopped 

from prosecuting him for filing a false refund claim because the

letter he received from the IRS was an offer not to pursue 

criminal penalties that became a binding contract when Jaensch 

accepted it by abandoning his false claim and filing a corrected 

return. We disagree.

The IRS letter makes no mention of any possible criminal 

sanctions. Contrary to Jaensch's arguments, it also does not 

state that Jaensch's misconduct subjected him to exclusively 

 1 We have considered whether the erroneous instruction in 

Count 1 could have affected the remaining counts and have 

concluded that it could not. Jaensch has not argued that it 

could have, nor could he convincingly do so on these facts.
11

civil sanctions or that he would be relieved from all possible 

sanctions of any kind by filing a corrected tax return. 

Therefore, the IRS letter cannot reasonably be read as an offer 

or promise to forgo criminal prosecution, and the district court 

did not err by refusing to dismiss Count 2 of the indictment on 

the ground of promissory estoppel.

ii.

Jaensch also argues that the district court’s refusal to 

give a good faith instruction on Count 2 constituted an abuse of 

discretion.

Jaensch’s argument is precluded by our precedent. Pursuant 

to Count 2, the district court instructed the jury that the 

Government was required to prove Jaensch submitted a claim “with 

a knowledge that it was false and with a consciousness that he 

was either doing something which was wrong or which violated the 

law.” J.A. 611. In United States v. Maher, we held that § 287 

includes a specific intent element,2 and that an essentially 

identical instruction was adequate to instruct the jury on 

specific intent. 582 F.2d 842, 847 (4th Cir. 1978). “If the 

 2 As we recognized in United States v. Daughtry, the Maher

court adopted the specific intent requirement that the district 

court read into the statute. 43 F.3d 829, 832 n.1 (4th Cir. 

1995) (vacated on other grounds by Daughtry v. United States, 

519 U.S. 984 (1995)). Section 287 is silent on the intent 

necessary to commit a violation, but we are bound by our 

precedent to require proof of specific intent.
12

district court gives adequate instruction on specific intent, a 

separate instruction on good faith is not necessary.” United 

States v. Mancuso, 42 F.3d 836, 847 (4th Cir. 1994). The 

district court’s specific intent instruction was adequate and no

additional good faith instruction was required. The district 

court, therefore, did not abuse its discretion by declining to 

give the requested instruction.3

C.

Jaensch next argues that the district court abused its 

discretion in evidentiary rulings affecting the entire trial. 

He contends that evidence of his prior conviction was improperly 

admitted and that opinion testimony of a lay witness regarding 

Jaensch’s good faith defense was improperly excluded.4

 We 

address each argument in turn.

i.

Jaensch contends that the district court abused its 

discretion by admitting evidence of his prior conviction under 

Federal Rule of Evidence 608 to impeach the testimony of his 

wife. Jaensch also contends that the evidence violated Rule 403 

 3 We have examined Jaensch’s remaining instructional 

challenges as they relate to Counts 3-6 and find them to be 

without merit.

4 We have examined Jaensch’s other evidentiary challenges 

and find them to be without merit.
13

because it was so prejudicial that it forced him to testify to 

mitigate its impact.

It is not clear from the record what Rule the district 

court relied on to permit evidence of Jaensch’s previous 

conviction to be entered. However, we may affirm on any ground 

supported by the record. United States v. Moore, 709 F.3d 287, 

293 (4th Cir. 2013). Contrary to Jaensch’s contention that 

evidence of the conviction was improper character evidence under 

Rule 404(a)(1), it was properly admitted under the exception in

Rule 404(a)(2)(A). Jaensch elicited testimony concerning his 

trait of honesty, it was admitted, and the Government offered 

evidence to rebut that testimony. See United States v. Moore, 

27 F.3d 969, 974 (4th Cir. 1994) (holding that when a defendant 

“‘opened the door’ by soliciting favorable opinions about his 

character, the district court properly allowed the government to

rebut the offered testimony”).

The manner of proof was also permissible. Rule 405(a) 

allows an admissible trait of character to be proven “by 

testimony about the person’s reputation.” On “cross-examination 

of the character witness, the court may allow an inquiry into 

relevant specific instances of the person’s conduct.” Id. Here 

the district court permitted Jaensch to elicit reputation 

testimony on cross-examination and the Government to challenge 
14

that testimony using Jaensch’s conviction on redirect.5 Although

405(a) speaks of “cross-examination,” courts that have addressed 

this issue have permitted evidence of specific acts to be 

admitted on redirect in service of the Rule’s intent. See

United States v. Powell, 124 F.3d 655, 661 n.4 (5th Cir. 1997); 

Gov't of V.I. v. Roldan, 612 F.2d 775, 778 n.2 (3d Cir. 1979) 

(“Character evidence was introduced for the first time on crossexamination. For the purpose of rebuttal of this evidence, 

therefore, the Government's redirect examination was the 

functional equivalent of the ‘cross-examination’ referred to in 

rule 405(a).”); United States v. Grose, 461 F. App’x 786, 795-96 

(10th Cir. 2012) (unpublished).

Finally, the district court did not abuse its discretion 

under Rule 403 by admitting Jaensch’s conviction. Rule 403 

prevents the admission of evidence only when its probative value 

is “substantially outweighed by its prejudicial impact ‘in the 

 5 Jaensch also argues that his previous conviction should 

not have been admitted because it was not for a specific intent 

crime of dishonesty. It is unclear what argument Jaensch is 

making, but to the extent that he is arguing that the relevant 

trait of character must be an essential element of the charge, 

claim, or defense, this restriction applies only to evidence 

admitted under Rule 405(b). Moreover, in the past we have 

permitted the Government to admit evidence of criminal acts 

unrelated to dishonesty as such to rebut testimony that a 

defendant’s “reputation is for being a man of honesty [and] law 

abidingness.” United States v. Wellons, 32 F.3d 117, 120 n.3 

(4th Cir. 1994) (internal citations omitted).
15

sense that it tend[s] to subordinate reason to emotion in the 

factfinding process.’” United States v. Gray, 405 F.3d 227, 240 

(4th Cir. 2005) (quoting United States v. Queen, 132 F.3d 991,

997 (4th Cir. 1997)). Jaensch’s prior crime is not of the 

character to inflame the passions of jurors or to cause them to 

disregard the facts of the case before them. See, e.g., United 

States v. Basham, 561 F.3d 302, 331 (4th Cir. 2009).

ii.

Jaensch argues that the district court abused its 

discretion by excluding, in part, the lay testimony of Brandon 

Eggleston. Jaensch contends that he sought to introduce this 

testimony to support his good faith defense and that by 

excluding it the court deprived him of his Sixth Amendment right 

to present a defense.

Rule 701 allows a lay witness to testify to an opinion that 

is “rationally based on the witness’s perception,” is “not based 

on ... specialized knowledge within the scope of Rule 702,” and 

is “helpful to clearly understanding the witness’s testimony or 

to determining a fact in issue.” Fed. R. Evid. 701(a)-(c). 

“[U]nlike the expert testimony rule, [Rule 701] permits lay 

testimony relating to a defendant's hypothetical mental state.” 

United States v. Offill, 666 F.3d 168, 177 (4th Cir. 2011).

Jaensch attempted to elicit testimony from Eggleston 

concerning Eggleston’s perception of Jaensch’s sincerity with 
16

regard to his beliefs about the tax laws. The district court

deemed Eggleston’s testimony inadmissible and excluded it, 

stating that “I think the jury is going to have to decide 

whether or not they thought the witness is believable. And I 

don’t know that this witness can tell us what he thinks about 

Mr. Jaensch. He’s already told us he thought he was an honest 

man.” J.A. 292.

The district court applied an overly restrictive 

interpretation of Rule 701. Under Offill, Eggleston was not 

prohibited from giving his opinion, based on his perceptions, of 

Jaensch’s sincerity if his testimony satisfied the three 

conditions of Rule 701. Because the district court held that 

Rule 701 did not permit this kind of testimony, it did not 

address whether Eggleston’s opinion would have been helpful to

the jury.

Although the district court’s error of law constitutes an 

abuse of discretion, reversal is unwarranted on this ground

because the error was harmless. To find an erroneous 

evidentiary ruling harmless, “‘we need only be able to say with 

fair assurance, after pondering all that happened without 

stripping the erroneous action from the whole, that the judgment 

was not substantially swayed by the error.’” United States v. 

Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (quoting United 

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)).
17

Even if we assume that Eggleston’s testimony would have 

been helpful to the jury in determining the subjective good 

faith of Jaensch’s beliefs, excluding that testimony had no 

substantial effect on the judgment. Eggleston was permitted to 

testify to all of the statements Jaensch made to him about 

Jaensch’s beliefs and to his general perceptions of Jaensch’s 

character. Jaensch himself testified,6 and both his wife and his 

accountant testified that they believed he held his beliefs 

sincerely. Based on all of the information available to the 

jury concerning the sincerity of Jaensch’s beliefs, it is clear 

that the exclusion of Eggleston’s opinion was harmless.

IV.

For the foregoing reasons, we vacate Jaensch’s conviction 

as to Count 1. Finding no other prejudicial error, we affirm as 

to all other counts. The case is remanded for rehearing on

 6 Jaensch also argues that the exclusion of Eggleston’s 

testimony forced him to testify in order to establish his good 

faith defense in violation of his Fifth Amendment right against 

self-incrimination. This claim is unavailing. Jaensch also 

argued that he was forced to testify because the district court 

admitted his previous conviction. The conviction was properly 

admitted so following Jaensch’s own logic he would have 

testified regardless of the court’s decision concerning 

Eggleston’s testimony.
18

Count 1 and for resentencing on all counts following the 

disposition of Count 1.

VACATED IN PART, 

AFFIRMED IN PART, AND 

REMANDED WITH INSTRUCTIONS