*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 14 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HOWARD M. BOOS,

Defendant-Appellant.

No. 97-6329

(D.C. No. CR-97-24-A)

(W.D. Okla.)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WAYNE R. GUNWALL,

Defendant-Appellant.

No. 97-6330

(D.C. No. CR-97-24-A)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before EBEL, HENRY, and LUCERO, Circuit Judges.
- 2 -

Howard M. Boos and Wayne R. Gunwall both were convicted of one count

of conspiracy to impede and injure officers of the United States from discharging

the lawful duties of their offices, in violation of 18 U.S.C. § 372, and two counts

of corruptly endeavoring to obstruct or impede the due administration of the

internal revenue laws, in violation of 26 U.S.C. § 7212(a). Boos raises four

claims on appeal: (1) § 7212 exceeds Congress’ legislative power under the

Commerce Clause; (2) his convictions violate the Double Jeopardy Clause; (3) he

was selectively and vindictively prosecuted; and (4) a $9000 fine imposed by the

district court was inconsistent with his ability to pay. Gunwall appeals his

convictions on four separate grounds: (1) he was vindictively prosecuted; (2) the

district court should have excluded evidence of his affiliation with “We The

People,” a tax protestor group; (3) the district court erred in instructing the jury

on the definition of “corruptly”; and (4) the evidence was insufficient to support a

finding that he acted corruptly. We affirm.

BACKGROUND

These two consolidated cases arose out of a scheme between Boos and

Gunwall to file false liens against two Internal Revenue Service (IRS) agents who

tried to collect taxes owed by Boos. On June 8, 1993, Gunwall filed two UCC-1

financing statements with the Oklahoma County Clerk’s Office listing IRS agents
- 3 -

Glen Phipps and Lonnie Hartline as debtors and stating that each owed Boos, and

Gunwall as Boos’ designee, twenty million dollars in silver.

Gunwall told an IRS investigator that he was acting as a third party and

would receive a fee if any money were collected. Gunwall also stated that the

liens were filed by persons who felt that they had suffered an injustice, and that

the liens were a way to get back at the IRS agents. Boos, who had signed the

liens, explained that IRS agent Hartline had done his job by filing liens against

Boos, and that Boos was doing his job by filing liens against the agents. As a

result of the liens, and under district counsel’s orders, Hartline’s efforts to collect

taxes from Boos were delayed for several months while the issue of the liens was

being resolved.

On October 12, 1993, a hearing on the liens against the IRS agents was

held in the Northern District of Oklahoma. The court, inter alia, found the liens

to be invalid, null, and void, ordered them to be removed, and ordered Boos as

well as any associates to file no further UCC-1 forms.

Meanwhile, in June 1993, an FBI search of the Colorado headquarters of

“We The People,” a tax protestor group, turned up a file for Boos. The file

contained a letter from Boos to Roy Schwasinger, the leader of “We The People”

and a promoter of filing UCC-1 financing statements. The letter gave Hartline’s

name, address, and phone number, his wife’s name and place of employment, and
- 4 -

the legal description of his home—information which also appeared on the UCC-1

form filed against Hartline. The letter stated: “If there is anything else needed to

put a lien on his property, or do what you want to do, please call me.” The file

also contained a copy of a summons served by the IRS on a bank where Boos had

a trust account, nominated “Justin Eathan Trust,” into which he had been making

deposits. Handwritten on the copy was the information about Hartline which

appeared in the letter. Furthermore, the file included proposed UCC-1 forms

naming Phipps and Hartline as debtors. In addition, among the records seized at

the headquarters was a list of names, addresses, and phone numbers which

included information on Gunwall.

On March 4, 1997, Boos and Gunwall were charged with conspiracy to

impede and injure officers of the United States discharging the lawful duties of

their offices, in violation of 18 U.S.C. § 372 and 18 U.S.C. § 2, and two counts of

corruptly endeavoring to obstruct or impede the due administration of the internal

revenue laws, in violation of 26 U.S.C. § 7212(a) and 18 U.S.C. § 2. On May 23,

1997, a jury found both defendants guilty on all three counts. Boos and Gunwall

appeal.

DISCUSSION

The district court had jurisdiction under 18 U.S.C. § 3231. We exercise

jurisdiction under 28 U.S.C. § 1291.
1

26 U.S.C. § 7212(a) states, in relevant part:

Whoever corruptly or by force or threats of force . . . endeavors to

intimidate or impede any officer or employee of the United States

acting in an official capacity under this title, or in any other way

corruptly or by force or threats of force . . . obstructs or impedes, or

endeavors to obstruct or impede, the due administration of this title,

shall, upon conviction thereof, be fined not more than $5000, or

imprisoned more than 3 years, or both . . . .

- 5 -

I. United States v. Boos, No. 97-6329

Boos raises four claims on appeal. We address each in turn.

A. Commerce Clause

Boos claims that the district court erred in denying his motion to dismiss

the two charges of corruptly endeavoring to obstruct or impede the due

administration of the internal revenue laws in violation of 26 U.S.C. § 7212(a).1

Relying on United States v. Lopez, 514 U.S. 549 (1995), Boos argues that §

7212(a) exceeds Congress’ legislative power under the Commerce Clause because

the provision is not commercial in nature. We review Boos’ challenge to the

constitutionality of § 7212(a) de novo. See United States v. Pearson, ___ F.3d

___, 1998 WL 614411, at * 2 (10th Cir. Sept. 15, 1998).

Boos’ claim is misplaced. Section 7212(a), a provision in the Internal

Revenue Code, is authorized not by the Commerce Clause, but by the taxing

provisions of the Constitution. See Baird v. Koerner, 279 F.2d 623, 627 (9th Cir.
- 6 -

1960) (Congress enacted Internal Revenue Code under taxing provisions of

Constitution); see also United States v. Lawson, 670 F.2d 923, 927 (10th Cir.

1982) (congressional power to tax “embraces all conceivable powers of taxation”)

(citing Brushaber v. Union Pac. R.R., 240 U.S. 1, 12-13 (1916)). Article I,

Section 8, clause 1 of the Constitution provides that “Congress shall have Power

To lay and collect Taxes,” and the Sixteenth Amendment authorizes Congress to

lay and collect income taxes without apportionment. Furthermore, Article I,

section 8, clause 18 empowers Congress to “make all Laws which shall be

necessary and proper for carrying into Execution the foregoing Powers, and all

other Powers vested by this Constitution.” The Necessary and Proper Clause has

long been interpreted to confer upon Congress broad implied powers to adopt “all

means which are appropriate” and “are plainly adapted” to the exercise of a

legitimate legislative power. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,

421 (1819); accord The Legal-Tender Cases, 110 U.S. 421, 440 (1884). Section

7212(a), which criminalizes certain attempts to interfere with the administration

of the internal revenue laws, is adapted appropriately and plainly to furthering

Congress’ legitimate legislative power to lay and collect taxes. As such, §

7212(a) is a constitutional exercise of congressional power. See United States v.

Varani, 435 F.2d 758, 762 (6th Cir. 1970) (section 7212(a) is “well within the

constitutional powers of Congress”); see also United States v. Bailey, 131 F.3d
- 7 -

152, No. 97-5047, 1997 WL 759073, at * 1 (10th Cir. 1997) (rejecting claim that

§ 7212(a) is “not commercial in nature and cannot be regulated under the

Commerce Clause” as “tautological construction[] incapable of rational

resolution”) (unpublished disposition); cf. United States v. Collins, 920 F.2d 619,

629 (10th Cir. 1990) (upholding 26 U.S.C. § 7201, provision criminalizing

income tax evasion, as “plainly” within Congress’ constitutional powers to lay

and collect taxes).

B. Double Jeopardy

Boos claims that the district court erred in denying his motion to dismiss on

the ground of double jeopardy. Relying on United States v. Halper, 490 U.S. 435

(1989), Boos argues that he was already punished in the prior civil proceeding in

the Northern District of Oklahoma. There, he was permanently enjoined from

filing additional liens or other frivolous documents against IRS agents and using

the United States mails to interfere with the IRS, and he was assessed costs. We

review the district court’s denial of Boos’ motion to dismiss on double jeopardy

grounds de novo. See United States v. Cordoba, 71 F.3d 1543, 1545 (10th Cir.

1995). We review the court’s underlying factual findings for clear error. Id.

The Double Jeopardy Clause provides that no “person [shall] be subject for

the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend.
2According to Hudson, the Halper approach saw

the imposition of “punishment” of any kind [as] subject to double

jeopardy constraints, and whether a sanction constituted

“punishment” depended primarily on whether it served the traditional

“goals of punishment,” namely “retribution and deterrence.” Any

sanction that was so “overwhelmingly disproportionate” to the

inquiry caused that it could not “fairly be said solely to serve [the]

remedial purpose” of compensating the government for its loss, was

thought to be explainable only as “serving either retributive or

deterrent purposes.”

118 S. Ct. at 494 (emphasis and second alteration original) (citations omitted).

- 8 -

V. The clause protects against “the imposition of multiple criminal punishments

for the same offense.” Hudson v. United States, 118 S.Ct. 488, 493 (1997)

(emphasis original). Boos relies on Halper’s analytical approach to double

jeopardy, but this approach has been discredited by Hudson.

2

 Hudson reaffirmed

the approach of United States v. Ward, 448 U.S. 242 (1980). See Hudson, 118 S.

Ct. at 491. Under that approach, courts first ask whether the legislature, “‘in

establishing the penalizing mechanism, indicated either expressly or impliedly a

preference’” for labeling the punishment civil or criminal. Id. at 493 (quoting

Ward, 448 U.S. at 248). Where the legislature has indicated an intention to

establish a civil penalty, courts must “inquire[] further whether the statutory

scheme was so punitive either in purpose or effect as to transfor[m] what was

clearly intended as a civil remedy into a criminal penalty.” Id. (second alteration

original) (internal quotations and citations omitted). “‘[O]nly the clearest proof’
3The district court ruled on Boos’ motion to dismiss on April 14, 1997. 

(Tr. 1, 24.) Hudson was decided on December 10, 1997. See Hudson, 118 S. Ct.

at 488.

4Boos also claims that his being subject to contempt for failure to comply

with the district court order constitutes punishment for double jeopardy purposes. 

This claim lacks force, as the mere possibility of contempt cannot constitute

punishment, civil or criminal.

- 9 -

will suffice to override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty.” Id. (quoting Ward, 448 U.S.

at 249).

The district court, ruling before Hudson was decided,3 denied Boos’ motion

to dismiss on the ground that the Northern District proceedings were remedial in

nature. Under Hudson, we hold that Boos’ claim fails. The permanent injunction

and assessment of costs were imposed by the Northern District under the authority

of Federal Rules of Civil Procedure 65(d) and 54(d) respectively. Because Boos

does not offer any proof, much less “the clearest proof,” that these civil remedies

were “so punitive in either purpose or effect as to transform what was clearly

intended as a civil remedy into a criminal penalty,” Hudson, 118 S. Ct. at 493, we

must reject his double jeopardy claim.4
- 10 -

C. Selective and Vindictive Prosecution

Boos claims that the district court erred in denying his motion to dismiss on

grounds of selective and vindictive prosecution. We review the district court’s

denial of the motion to dismiss on the ground of selective prosecution for abuse

of discretion. See United States v. Furman, 31 F.3d 1034, 1037 (10th Cir. 1994). 

The claim of vindictive prosecution is a mixed question, wherein we review the

district court’s factual findings for clear error, and the legal principles guiding the

district court de novo. See United States v. Contreras, 108 F.3d 1255, 1262 (10th

Cir.), cert. denied, 118 S. Ct. 116 (1997).

To prevail on a claim of selective prosecution, Boos must show that “he has

been singled out for prosecution while others similarly situated generally have not

been proceeded against for the type of conduct forming the basis of the charge

against him.” Furman, 31 F.3d at 1037 (internal quotations and citation omitted). 

In addition, he must prove that the government’s selection of him for prosecution

“was invidious or in bad faith and was based on impermissible considerations

such as . . the desire to prevent the exercise of constitutional rights.” Id.

(quotations and citation omitted).

In this case, Boos alleges that he was singled out for prosecution because of

his status as a tax protestor, and because of his association with other tax

protestors. However, Boos offers no evidence that he was singled out for
5Boos attributes his failure to come up with “statistical data” for his

selective prosecution claim to the district court’s denial of his discovery request

for such information, and apparently appeals that denial as well. However, “[t]he

justifications for a rigorous standard for the elements of a selective-prosecution

claim . . . require a correspondingly rigorous standard for discovery in aid of such

a claim.” Armstrong, 517 U.S. at 468. As a threshold requirement, Boos must

make “a credible showing of different treatment of similarly situated persons.” 

Id. at 470. As Boos presents no evidence of selective prosecution, he cannot avail

himself of discovery for this claim.

- 11 -

prosecution while others similarly situated have not been prosecuted, or that the

government selected him because of the exercise of his First Amendment right of

association. Instead, he speculates that “[o]f the literally hundreds of thousands

of tax violators in the form of failures to timely file, making false statements,

evasion crimes, and others of that nature, it seems that the statistical data would

support an allegation of selective prosecution.” Mere conjecture does not meet

the “rigorous standard for the elements of a selective-prosecution claim.” United

States v. Armstrong, 517 U.S. 456, 468 (1996); see Furman, 31 F.3d at 1037

(district court did not abuse its discretion in dismissing claim of selective

prosecution based on “conclusory allegations”). Accordingly, the district court

did not abuse its discretion in denying Boos’ motion to dismiss.5

To succeed on his vindictive prosecution claim, Boos must show either

actual vindictiveness or a reasonable likelihood of vindictiveness, which would

raise a presumption of vindictiveness. See Contreras, 108 F.3d at 1262. “While a

prosecutor may penalize a defendant for violating the law, a prosecutor may not
- 12 -

punish a defendant for ‘exercising a protected statutory or constitutional right.’” 

Id. (quoting United States v. Goodwin, 457 U.S. 368, 372 (1982). Thus, we must

focus on “whether, as a practical matter, there is a realistic or reasonable

likelihood of prosecutorial conduct that would not have occurred but for hostility

or punitive animus toward the defendant because he exercised his specific legal

right.” Id. (internal quotations and citations and quotations omitted).

Although unclear, Boos appears to allege that his prosecution was

vindictive because he obeyed the injunction issued by the Northern District and so

could not be cited for contempt, prompting the government to “increase the ante

by filing criminal charges.” As additional support, Boos cites the fact that the

government could have filed criminal charges against him in 1993, at the time of

the civil proceedings in the Northern District, but instead choose to wait until

1997.

Boos fails to show either actual vindictiveness or a reasonable likelihood of

vindictiveness. Boos has not exercised any specific “protected statutory or

constitutional right” against which the government may have retaliated, Contreras,

108 F.3d at 1262 (quoting Goodwin, 457 U.S. at 372), and we can find no

precedent for his novel claim that a prosecution following compliance with a civil
6Boos relies on Blackledge v. Perry, 417 U.S. 21 (1974), but that case is

inapposite. There, the defendant exercised his statutory right to appeal a

conviction in a state district court to a state superior court, where he would be

entitled to a trial de novo. Id. at 22. The Supreme Court held that the

government could not respond to the defendant’s statutory right to appeal by

bringing a more serious charge against him prior to his trial. Id. at 28-29. Unlike

the defendant in Blackledge, Boos does not allege that he exercised any such

protected statutory or constitutional right prompting the government to prosecute

him vindictively.

Additionally, Boos points to a number of cases for the proposition that a

prosecutor should be barred from “bringing a second series of charges after he

had the initial opportunity to do so.” However, these cases are also inapposite, as

they all involve prosecutors bringing more serious criminal charges after the

defendant had exercised a protected right. See United States v. Groves, 571 F.2d

450, 453 (9th Cir. 1978) (rights under Speedy Trial Act); United States v.

DeMarco, 550 F.2d 1224, 1227 (9th Cir. 1977) (statutory venue rights); Twiggs v.

Superior Court, 667 P.2d 1165, 1169 (Cal. 1983) (refusing plea bargain); Murphy

v. State, 453 N.E.2d 219, 223 (Ind. 1983) (motion for mistrial). As noted, Boos

does not allege the exercise of any such protected right, much less does he allege

that the government recharged him with more serious criminal offenses.

- 13 -

order is vindictive.6

 Furthermore, Boos does not present any evidence that the

government prosecuted him in retaliation to his compliance with the Northern

District order. On the other hand, as the government points out, the United States

had ample reasons for proceeding against him in two separate proceedings. The

government could have wanted the liens filed against the IRS agents removed as

quickly as possible, and the separate civil proceeding offered an expedited means

of relief as well as a lower standard of proof. Moreover, the criminal investigation

had not been completed. As Boos fails to show a reasonable likelihood of
- 14 -

prosecutorial vindictiveness, we affirm the district court’s denial of his motion to

dismiss.

D. Costs

Finally, Boos claims that the district court erred in fining him $9000. Boos

argues that he does not have the ability to pay the fine, and asks us to hold that any

fines imposed by the district court must be consistent with his ability to pay. 

Ordinarily, we review a district court’s decision to impose a fine under the

Sentencing Guidelines for abuse of discretion. See United States v. Klein, 93 F.3d

698, 705 (10th Cir.), cert. denied, 117 S. Ct. 624 (1996). However, Boos did not

object to the imposition of the fine at sentencing. As a result, we will not disturb

the fine absent plain error. See United States v. Herndon, 982 F.2d 1411, 1419

(10th Cir. 1992).

The Sentencing Guidelines require the imposition of a fine “except where the

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

pay any fine.” U.S.S.G. § 5E1.2(a); accord Klein, 93 F.3d at 705. The sentencing

court should consider, inter alia, “any evidence presented as to the defendant’s

ability to pay the fine (including the ability to pay over a period of time) in light of

his earning capacity and financial resources.” U.S.S.G. § 5E1.2(d)(2). However,

the Sentencing Guidelines do not require that the district court make a specific
- 15 -

finding about the defendant’s ability to pay before imposing a fine. See United

States v. Nez, 945 F.2d 341, 343 (10th Cir. 1991).

In this case, we find no plain error in the district court’s imposition of a fine. 

At sentencing, Boos did not object to the fine, nor did he establish an inability to

pay. Moreover, Boos conceded at the sentencing hearing that the district court had

before it the financial information it needed to decide on a fine, stating, “[I]t’s up

to the Court, of course, if there’s a fine or not a fine, and I’m not even going to

address that issue because you’ve got the information there in front of you as to

that.” The district court decided on a fine of $9000, an amount within the

applicable Sentencing Guidelines range. U.S.S.G. § 5E1.2(c)(3). Under the

circumstances, we cannot say that the district court plainly erred. See Nez, 945

F.2d at 343 (“a sentencing court’s failure to make explicit findings in support of

imposing a fine is not plain error where the sentencing court had before it

undisputed and unchallenged facts necessary to the imposition of a substantial

fine”).

II. United States v. Gunwall, No. 97-6330

Gunwall appeals his convictions on four grounds. We address each in turn.
7Citing his indictment, Gunwall does state that “the evidence shows that the

government fully believed Mr. Gunwall was a ‘tax protestor.’” However, while

the indictment does associate Gunwall and Boos with “We The People,” it does so

in reference to the group leader’s advocacy of filing UCC liens. Gunwall does

not indicate how the reference evidences an improper prosecutorial purpose.

- 16 -

A. Vindictive Prosecution

Gunwall appeals the district court’s denial of his motion to dismiss on the

ground of vindictive prosecution. He points to his guilty plea in a prior case in the

Northern District of Oklahoma, where he was charged with conspiracy to violate §

7212(a), and with violating § 7212(a) by filing false UCC liens against IRS agents

and by filing several false “Citizens Warrant[s] for Citizens Arrest” against IRS

agents and other government officials. Gunwall argues that the prosecutors for the

Northern and Western Districts of Oklahoma “orchestrated this series of

prosecutions” because of his association with “an unpopular political group,”

presumably “We The People.”

We find that Gunwall’s claim does not satisfy the legal standards for

vindictive prosecution. See supra Part I.C. Gunwall cites no evidence that his

prosecution was brought to punish him for associating with tax protestors,7 and he

does not allege that the prosecution in this case was in retaliation for any protected

rights exercised in the Northern District proceedings. Cf. United States v.

Contreras, 108 F.3d 1255, 1262 (10th Cir. 1997) (citing United States v. Goodwin,

457 U.S. 368, 372 (1982)). As the prosecution in the Northern District and the one
- 17 -

in this case involved different incidents, different victims, and, except for Gunwall,

different defendants, each prosecution appears to have separate and legitimate

bases. Thus, we find no vindictiveness or reasonable likelihood of vindictiveness. 

See United States v. Cardall, 885 F.2d 656, 666 (10th Cir. 1989) (declining to find

vindictive prosecution because “[p]rosecutors have traditionally enjoyed discretion

in deciding which of multiple possible charges against a defendant are to be

prosecuted or whether they are all to be prosecuted at the same time”); United

States v. Pungitore, 910 F.2d 1084, 1112 (3d Cir. 1990) (“to raise successfully a

due process claim, the defendant must affirmatively establish vindictiveness, as the

fact of multiple prosecutions, standing alone, does not prove an abuse of

prosecutorial discretion”).

B. Motion in Limine

Gunwall appeals the district court denial of his motion in limine to exclude

evidence of his association with “We The People.” He claims that such evidence

was inadmissible because it was not relevant, see Fed. R. Evid. 402, and in any

event because any probative value it may have had was substantially outweighed by

the danger of unfair prejudice. See Fed. R. Evid. 403. We review the district

court’s ruling on a motion in limine for abuse of discretion. See Den Hartog v.

Wasatch Academy, 129 F.3d 1076, 1092 (10th Cir. 1997).
- 18 -

We find that the district court did not abuse its discretion in denying

Gunwall’s motion in limine. First, evidence of Gunwall’s association with “We

The People” was relevant. The district court permitted the government to adduce

testimony that among the records of “We The People” was a list which included

Gunwall’s name, address, and phone number, and the court permitted testimony

that the group’s leader advocated filing UCC-1 financing statements against anyone

with whom an individual had a grievance, in order to cloud their credit and clog the

legal system. This evidence had a tendency to link Gunwall to his co-conspirator

Boos, to connect them both to the UCC filings in this case, and to provide Gunwall

with a motive for filing the liens. See Fed. R. Evid. 401 (evidence with any

tendency to make existence of fact of consequence more or less probable is

relevant). Second, any prejudicial effect from the evidence of Gunwall’s

association with “We The People” did not substantially outweigh its probative

value. Gunwall does not offer support for his Rule 403 claim, and indeed the

record would not support it. The testimony relating to “We The People” was brief,

and was focused not on the group itself but on establishing the above factual points

in a non-inflammatory manner. Accordingly, the district court properly denied

Gunwall’s motion in limine. See United States v. Sloan, 65 F.3d 861, 864 (10th

Cir. 1995) (evidence of defendant’s gang membership properly admitted as relevant
- 19 -

to show existence of conspiracy and relationship between defendant and other

participants in indicted offense, and as more probative than prejudicial).

C. Definition of “Corruptly” in Jury Instruction

Gunwall claims that the district court erred in instructing the jury on the

definition of “corruptly” under § 7212(a). We conduct a de novo review of jury

instructions “to determine whether, as a whole, they correctly stated the governing

law and provided the jury with an ample understanding of the issues and the

applicable standards.” Harrison v. Eddy Potash, Inc., 112 F.3d 1437, 1442 (10th

Cir. 1997), vacated on other grounds, 118 S. Ct. 2364 (1998).

The district court gave the following jury instruction on “corruptly”:

To act “corruptly” means to perform an act with the intent

to secure an unlawful benefit to oneself or for another. 

Diverting agents from their duties of collecting taxes from Dr.

Boos creates an unlawful benefit. Whether to draw this

inference, and if you do, the strength of it are matters for you to

decide.

Motives such as a desire to protest or to take a petty

vengeance against revenue officers do not in themselves supply

the necessary intent, but the necessary intent may coexist with

such motives.

(R. 65, no. 31.) In this instruction, according to Gunwall, the district court “made a

finding of fact that diverting the agents’ attention created an unlawful benefit,” and

so “in essence . . . directed a verdict” against him.
8We note that the district court’s construction of “corruptly” is legally

correct. See United States v. Winchell, 129 F.3d 1093, 1099 (10th Cir. 1997)

(stating that “a taxpayer’s filing of frivolous documents against IRS agents

constitutes a corrupt endeavor if the taxpayer ‘meant to . . . intimidate officers or

agents of the [IRS] from collecting his just debt of taxes due’”) (quoting Reeves,

752 F.2d at 1002); Reeves, 752 F.2d at 998, 1001-02 (noting that “section 7212(a)

is directed at efforts to bring about a particular advantage such as impeding the

collection of one’s taxes,” and holding that filing of frivolous liens with intention

of securing improper benefits or advantages for oneself or others “constitutes a

prohibited corrupt endeavor under section 7212(a)”).

- 20 -

Contrary to Gunwall’s assertion, the district court did not make a finding of

fact in stating that diverting agents from collecting taxes from Boos creates an

unlawful benefit. Rather, the district court’s interpretation of what constitutes an

unlawful benefit for the purpose of construing “corruptly” under § 7212(a) is point

of law. See United States v. Reeves, 752 F.2d 995, 1000 (5th Cir. 1985) (district

court’s construction of “corruptly” under § 7212(a) is an “interpretation of the

law”). As a result, we find that the instruction did not impinge upon the jury’s role

as a fact-finder.8 Moreover, the district court properly left to the jury the factfinding role of whether to infer that the defendants diverted the agents for the

unlawful purpose of hindering their collection of taxes from Gunwall. 

Consequently, we find no error in the challenged instruction.
- 21 -

D. Sufficiency of Evidence

Finally, Gunwall appeals the district court’s denial of his motion for

judgment of acquittal, arguing that the evidence was insufficient to support a

finding that he acted corruptly under § 7212(a). To support his claim, Gunwall

states that “[n]o evidence supports a finding Mr. Gunwall and Dr. Boos filed the

liens for twenty Million dollars in silver for any reason other than to annoy the

agents and the Internal Revenue Service.” In making his argument, Gunwall is

faced with a high hurdle: in reviewing the sufficiency of the evidence

to support a jury verdict, this court must review the record de novo and

ask only whether, taking the evidence—both direct and circumstantial,

together with the reasonable inferences to be drawn therefrom—in the

light most favorable to the government, a reasonable jury could find

the defendant guilty beyond a reasonable doubt.

United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir. 1996) (internal quotations

and citation omitted).

We hold the evidence was sufficient to support a finding that Gunwall acted

corruptly under § 7212(a). The evidence shows that the leader of “We The People”

advocated the filing of UCC liens for disruptive purposes; that Gunwall and Boos

were associated with the group, and that Boos involved the group in the filing of

the liens; that the liens filed by Gunwall and Boos delayed the IRS’ tax collection

from Gunwall; and that the filings caused the government to expend time and

resources to investigate and remove the liens. Taking the evidence in the light

most favorable to the government, we find that a reasonable jury could conclude
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that Gunwall had the liens filed for the corrupt purpose of impeding the IRS’

collection of his taxes. See Winchell, 129 F.3d at 1099; Reeves, 752 F.2d at 998,

1001-02.

CONCLUSION

The convictions of Boos and Gunwall are both AFFIRMED. The $9000 fine

imposed on Gunwall is also AFFIRMED.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge