PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOHN S. WILLIAMSON , Defendant - Appellant. No. 13-2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:11-CR-02784-JB-1)

Brian A. Pori, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant – Appellant. Mary L. Higgins, Assistant United States Atto rney, (Kenneth J. Gonzales, United States Attorney, with her on the brief), Albuquerque, New Mexi co, for Plaintiff – Appellee.

Before KELLY , HARTZ , and MATHESON , Circuit Judges.

HARTZ, Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### March 17, 2014
Elisabeth A. Shumaker Clerk of Court2 Defendant John S. Williamson has been protesting taxes for 30 years. In May 2008 the Internal Revenue Servi ce (IRS) levied his wife’s wages to collect his back taxes. The IRS sent a notice of the levy, whic h Defendant returned, writing across the document: “Refused for cause. Re turn to sender, unverified bill. ” R., Vol. 3 pt. 2 at 169. He enclosed his affidavit e xplaining why he did not need to pay income taxes. Subsequent notices of the le vy were also returned. In June 2008, Defendant se nt an invoice for $909,067,650.00 to two IRS agents who had worked on the matter. The invoice listed the value of real and personal property allegedly seized by the IRS, added damages for various alleged torts, and then trebled the total “for racketeering.” Add. to Aplt.’s Opening Br. at 33. In December 2008, Defendant and Mrs. Williamson f iled with the clerk of Bern alillo County, New Mexico, a claim of lien against the agents’ real and personal property for the same amount as the invoice. The claim alleged that the agents: unlawfully, without benefit of a valid court order lev[ied Mrs.] Williamson’s earnings, did cause false and fraudulent Notic es of Federal Tax Liens to be filed in the Bernalillo County record, did cause void judgments to deprive the Williamson’s [sic] of their real-estate, vehicles and personal property, did slander and defame the Williamson’s [sic] good name and credit. R., Vol. 1 at 28. A grand jury of the United St ates District Court for th e District of New Mexico indicted Defendant and Mrs. W illiamson on two counts: (1) “corruptly endeavor[ing] to impede the due administration of the Inte rnal Revenue Code by filing a false and fraudulent Claim of Li en,” in violation of 26 U.S.C. § 7212(a); and (2) “fil[ing] . . . a3 false lien and encumbrance against the real and personal property [of the IRS agents] on account of the performance of [their] official duties,” in violation of 18 U.S.C. § 1521. Id. at 12–13. Mrs. Williamson pleaded guilty to the s econd count in retu rn for dismissal of the first count against her. Defendant, however, proceeded to trial. His defense was essentially that he genuinely believed his lien was proper. A forens ic psychologist testified that Defendant suffered from a delusional disorder that prev ented him from abandoning his beliefs even when confronted with overwhelming evidence that he was wrong. Defendant requested instructions that would support his “genuine belief” defense to both charges, but the court rejected them and the jury returned verdicts of guilty on the two charges. He was sentenced to four months in prison a nd three years of supervised release. Defendant appeals his conviction, challenging the district court’s failure to give the requested jury instructions. We affirm. I. DISCUSSION “This court reviews a trial court’s decisi on on whether to give a particular jury instruction for abuse of discretion a nd views the instructions as a whole de novo to determine whether they accura tely informed th e jury of the governing law.” United States v. Villegas , 554 F.3d 894, 900 (10t h Cir. 2009) (internal qu otation marks omitted). An additional “instruction is not required if it would simply give the jury a clearer understanding of the issues.” United States v. Bowling , 619 F.3d 1175, 1184 (10th Cir. 2010) (internal quotation marks omitted). And, of course, the court can reject an4 instruction that misstates the law. See United States v. Pinson , 542 F.3d 822, 831 (10th Cir. 2008). We first address Defendant’s ar gument that he was entitled to an additional instruction on § 7212(a) a nd then turn to § 1521. A. Section 7212(a) Mr. Williamson challenges the instructions on 26 U.S.C. § 7212( a) because they did not inform the jury that he could be guilty onl y if he intentionally violated a known legal duty. Section 7212(a) provides: Whoever corruptly or by force or threat s of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States ac ting in an official capacity under this title, or in any other way corruptly or by fo rce or threats of force (including any threatening letter or communication) obstr ucts or impedes, or endeavors to obstruct or impede, the due admini stration of this title, shall, upon conviction thereof, be fine d . . . or imprisoned. The district court’s instructions set forth the elements of the offense as follows:
First: The defendant in any way corruptly; Second: Endeavored to; Third: Obstruct or impede the due administration of the Internal Revenue Laws. R., Vol. 1 at 221. The instructions then defined several of the terms that appeared in the elements: “Endeavor” means to knowingly and inte ntionally make any effort which has a reasonable tendency to bring about the desired result. It is not necessary for the Government to prove that the “endeavor” was successful. To act “corruptly” is to act with the intent to gain an unlawful advantage or benefit either for oneself or for another. To “obstruct or impede” is to hinder or prevent from progress; to slow or stop progress; or to make accomplishment difficult or slow.5 The phrase “due administration of the Internal Revenue laws” means the Internal Revenue Service of the Department of the Treasury carrying out its lawful functions to calculate and collect income taxes.
Id. at 222 (italics added). At trial, defense counsel did not challenge the accuracy of these instructions but argued that the court sh ould add a definition of unlawful (which appears in the definition of corruptly ). He stated that “the definition of un lawful in the Tenth Circuit is, ‘with the specific intention to do someth ing the law forbids’” and that “an alternative definition of unlawfully would be violation of a known legal right.” Id. , Vol. 3 pt. 3 at 359. Also, quoting United States v. Winchell , 129 F.3d 1093 (10th Cir. 1997 ), he said that he would accept as the definition: “‘[a] voluntary, inte ntional violation of a known legal right.’”
Id. at 360. When the government pointed out that Winchell was defining willful , not unlawful , defense counsel asserted that “unlaw ful and willfulness converge in this instance,” but offered that he would be “h appy to defer to any other definition of unlawfulness, which the Tenth Circuit set out in Winchell.” Id. at 361. The court ended the discussion by saying, “I don’t think we need a definition of unlawful.” Id. On appeal Defendant argues that unlawful should have been defined and that he could be guilty of violating § 7212(a) on ly if his acts were an “int entional violati on of a known legal duty.” Aplt. Br. at 39 (italics omitted). Insofar as Defendant is arguing that the word unlawful in the instructions should have been defined, we di sagree. The meaning of unlawful is common knowledge and ordinarily does not n eed to be defined. See Atchison, Topeka & Santa Fe Ry. Co. v.6 Preston , 257 F.2d 933, 937 (10th Cir. 1958) (“[A] court is not required to define words and phrases which are familiar to one of ordinary intelligence. ”). We note that the Tenth Circuit Criminal Pattern Jury Instructions re peatedly use the word unlawful but never define it, and the Tenth Circuit case adopting the instruction used at Defendant’s trial saw no need to define it. See Winchell , 129 F.3d at 1098. Defendant cites no authority requiring it to be defined or de fining it as he proposes. Perhaps Defendant is trying to argue some thing a bit different from the failure to define unlawful and is simply asserting that the in structions did not impose the proper

mens rea requirement. This alternative argume nt is suggested by his reliance on Cheek v. United States , 498 U.S. 192 (1991). In Cheek the issue was the meaning of willfully as used in 26 U.S.C. § 7201 and 26 U.S.C. § 7203. Id. at 194. The Supreme Court concluded, using the language Defendant would have liked in his jury instruction, “that the standard for the statutory willfulness requirement is the voluntary, intentional violation of a known legal duty ,” id. at 201 (emphasis added) (internal quotation marks omitted), and that a defendant can overcome this requirement by showing that he acted in the good-faith belief that he was complying with the law, even if the belief was not objectively reasonable, see id. at 203–04. The problem for Defendant is that § 7212(a) does not use the word willfully

. Cheek was not a constitutional decision requiring a particular state of mind before one could be convicted of a tax o ffense. It was interpreting st atutory language—language not present in § 7212(a). No decision of the Supreme Court, or of this court, has held that7 Defendant’s suggested mens rea requirement is the mens rea required for violation of § 7212(a). Nor is there any compelling reas on to believe that Congress wanted the Cheek standard to apply to § 7212(a). Rather than using the word willfully , it used corruptly to define the mens rea for § 7212(a). And the federal appellate courts have agreed (although with some insign ificant variations in lang uage) on the definition of corruptly that appears in the district cour t’s instruction: “To act ‘corrup tly’ is to act with the intent to gain an unlawful advantage or bene fit either for oneself or for another.” R., Vol. 1 at
222. See United States v. Floyd , 740 F.3d 22, 31 (1st Cir. 2014) (collecting cases);
United States v. Crim , 451 F. App’x 196, 201 (3d Cir. 2011)

. Moreover, the definition of willfully in Cheek and the definition of corruptly in the instructions in Defendant’s trial have much in common. Indeed, the Second Circuit has suggested that an instructi on like the one here “was as comprehensive and accurate as if the word ‘willfully’ was incorporated in the statute.” United States v. Kelly , 147 F.3d 172, 177 (2d Cir. 1998). If there is someth ing missing or ambiguous in the “corruptly” instructions that could be cu red only by using the language taken from the definition of willfully , Defendant needed to point that out to the district court. On appeal, Defendant argues (at least indirectly) that what is miss ing from the instructions at his trial (and is conveyed in the language “int entionally violated a known lega l duty,” Aplt. Br. at 42) is that the jury, although instructed that he must have ac ted “with the inte nt to gain an unlawful advantage or benefit,” was not told that it must find that he knew that the advantage or benefit was unlawful. Id. at 38. But that is not the argument made by8 Defendant at trial. Defense counsel’s brief argument to the district court consistently framed his concern in terms of the need to define unlawful , ending with the statement, “So I’m happy to defer to a ny other definition of unlawfuln ess, which the Tenth Circuit set out in Winchell .” R., Vol. 3 pt. 3 at 361. (The reference to Winchell is puzzling because that opinion defined corruptly in essentially the same language as the instructions at Defendant’s trial and did not define unlawful

. See 129 F.3d at 1098

‒ 99.) We can hardly expect a trial judge to infer that defense counsel is making a mens rea argument when counsel insists th at he just wants the word unlawful to be defined in the instructions. The patient, experienced, and highly intelligent trial judge in this case certainly did not understand the argument as Defendant presents it on appeal, concluding the discussion with the ruling, “I don’t think we need a definition of unlawful.” R., Vol. 3 pt. 3 at 301. Because Defendant’s argument at trial di d not alert the district court to the argument raised on appeal, we review the appellate argument under the plain-error standard. See United States v. Bedford , 536 F.3d 1148, 1153 (10th Cir. 2008). To establish plain error, Defendant must show “(1) there was error, (2) that is plain, (3) that affects substantial rights, and (4) that se riously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). We need not resolve whether the “corruptly” instruction was flawed. We leave to another day whether a conviction under § 7212(a) requires that the defendant knew that the advantage or benefit he sought was unlawful and, if so, wh ether the instruction he re would adequately9 inform a jury of that requirement. On this ap peal it is enough that the second requirement of plain-error review (that the error be plain) is not satisfied. Although, as previously noted, the instructions used by the district court are in common use, Defendant has not cited any decision, much less a decision by this court or the United States Supreme Court, holding that they are improper in a § 7212(a) prosecution. See United States v. Fishman , 645 F.3d 1175, 1193 (10th Cir. 20 11) (“In general, for an e rror to be contrary to wellsettled law, either the Supreme Court or th is court must have addressed the issue.” (internal quotation marks omitted)). Defendant argues that he has at least s hown that the elements of § 7212(a) are doubtful and that therefore the rule of lenity requires that we interpret the statute in his favor. But that rule cannot ov ercome the requirements of plain-error review. The doubt required for the rule of lenity must be doubt raised by an adequately preserved argument. Otherwise, the second prong of plain-error review (that the appellant show that the alleged error was plain) would be eviscerated. See United States v. Ruiz-Gea , 340 F.3d 1181, 1188 (10th Cir. 2003) (“ When the choice between two possible meanings of a statute is so open to debate that the rule of lenity comes into play, one can hardly say that either interpretation is plainly wrong.”). Finally, Defendant raises snippets of what may be arguments supporting his proposed instruction. But the arguments were not raised in district court and are not properly presented in his opening brief on appeal. We therefore reject them. See
Bronson v. Swensen , 500 F.3d 1099, 1 104 (10th Cir. 2007) (“[W]e routinely have10 declined to consider ar guments that are not raised, or ar e inadequately presented, in an appellant’s opening brief.”); McDonald v. Kinder-Morgan, Inc. , 287 F.3d 992, 999 (10th Cir. 2002) (“It is clear in this circuit that absent extraord inary circumstances, we will not consider arguments raised for the first time on appeal.”). 1
B. Section 1521 Defendant also challenges the district cour t’s failure to instru ct the jury on his good-faith defense to the ch arge under 18 U.S.C. § 1521. Section 1521 provides: Whoever files, attempts to file, or c onspires to file . . . any false lien or encumbrance against the real or persona l property of an individual . . . on account of the performance of offi cial duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation , shall be fined under this title or imprisoned . . . or both. (emphasis added). As with the instructions on § 7212(a), the district court’s instructions on § 1521 set forth the elements of the offense and then defined several terms used in the elements instruction: In order for you to find the defenda nt guilty of [violating § 1521], the Government must prove each of the following beyond a reasonable doubt:

1 Defendant’s counsel at oral argument said that he was also challenging the rejection of his proposed good-faith instruction on § 72 12(a). But Defendant did not make that argument in his opening brief. On the cont rary, he summed up his § 7212(a) argument by saying, “For the same reasons the evidence supported the gi ving of a good faith jury instruction with respect to th e § 1521 charge, as discussed above, the evidence supported the district court instructing the jury th at to convict Mr. Williamson of violating § 7212(a) it had to find he intentionally viol ated a known legal duty.” Aplt. Br. at 42 (citation omitted). We do not address arguments that “are not raised, or are inadequately presented, in an appe llant’s opening brief.” Bronson , 500 F.3d at 1104.11 First: The defendant filed a false lie n or encumbrance in a public record; Second: The lien or encumbrance was filed against the property of an employee of the United States Government; Third: The lien or encumbrance was filed because of that employee’s performance of his official duties; and Fourth: The defendant knew or had reas on to know that such lien or encumbrance was false, or that it cont ained a materially false statement. R., Vol. 1 at 223. A statement is “false” if it is untrue, or is made with reckless indifference for the truth. A statement can be false if it is half true, or omits or conceals a “material” fact. A “material” fact is a fact that tends to influence a decision of the person to whom it is addressed. A st atement can be “material” even if nobody was actually influenced in any way. A “lien” is a legal right or interest that a creditor has in another’s property to secure payment of a de bt or performance of an obligation. An “encumbrance” is a claim or liability that is attached to property and that may lessen its value. An “employee of the United States Government” includes employees of the IRS and the Departme nt of Treasury. The IRS and the Department of Treasury are agencies of the United States Government. Id. at 224. At trial, Defendant did not challenge the accuracy of these instructions but argued that the court should include a good-faith instruction. On appeal he argues that this error prevented the jury from exonerating him if it foun d that he honestly believed that he had not filed a false lien. Under § 1521, however, a defendant can be guilty even if he honestly believed that he filed a proper lien so long as the belief was not a reasonable one. The statute prohibits not only filing a false lien “knowing” that th e lien was false, but also filing a false lien “having reason to know” that it was false. In other word s, the jury may convict the12 defendant if a reasonable person who po ssessed the information possessed by the defendant would have the requi site knowledge of falsity. See United States v. Saffo , 227 F.3d 1260, 1268–69 (10th Cir. 2000) (addressing “knowing or having reasonable cause to believe” in 21 U.S.C. § 84 1(d)(2)—now § 841(c)(2)); United States v. Munguia , 704 F.3d 596, 602–03 (9th Cir. 2012) (following Saffo )). This standard may be said to include both a subjective component (that is, what information this pa rticular defendant had) and an objective componen t (what a reasonable person would infer from that information). 2 A good-faith instruction would be inconsis tent with the objective component of the having-reason-to-know requirement. It would protect a defendant when a reasonable person who knew what defendant knew would infe r that the lien was false. Defendant is not entitled to a not-guilty verdict just because, as his expert witness testified, he suffered from a delusional disorder that prevented him from abandoning his beliefs even when confronted with overwhelming evidence that he was wrong. Given the clarity of the

2 Language in United States v. Truong , 425 F.3d 1282, 1290– 91 (10th Cir. 2005), suggests a broader reading of Saffo than the interpreta tion we share with Munguia . But the holding in Truong is consistent with, a nd a good illustration of, Saffo as we interpret it. In Truong we held that there wa s insufficient ev idence that the defendant had “reasonable cause to believe” that the pseudo ephedrine he was selli ng would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2), because there was no evidence that he personally knew that pseudoephedrine could be used in the manufacture of methamphetamine. Id. at 1289 (internal quotati on marks omitted). Thus, based on only the information known to the specific defendant, a reasonable person would not have had reason to believe that the pseudoephedrine would be used to make methamphetamine.13 statutory language, we also re ject Defendant’s arguments base d on the rule of lenity and the alleged complexity of lien law. II. CONCLUSION We AFFIRM Defendant’s convictions.