FILED

United States Court of Appeals

Tenth Circuit

August 19, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SKOSHI THEDFORD FARR,

Defendant - Appellant.

No. 07-6187

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. CR-06-191-F)

Mack K. Martin (Kendall A. Sykes with him on the briefs) of Martin Law Office,

Oklahoma City, Oklahoma, for Defendant-Appellant.

Susan Dickerson Cox, Assistant United States Attorney (John C. Richter, United

States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for PlaintiffAppellee.

Before KELLY, HOLLOWAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Skoshi Thedford Farr appeals her conviction for tax fraud. She alleges that

during trial the government constructively amended the indictment against her –

trying her not just for the crime described in the indictment but also for a separate
1

 Section 3403 provides in pertinent part that “[t]he employer shall be

liable for the payment of the tax required to be deducted and withheld under this

chapter . . . .” 

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and additional offense. We agree. The grand jury indicted Ms. Farr for one

crime (failure to pay quarterly employment taxes for a medical clinic) but at trial

the government pursued her for another offense (failure to pay a trust fund

recovery penalty assessed against her personally). Under the Constitution, the

government may only proceed at trial against the accused “for . . . [an] infamous

crime . . . on presentment or indictment of a Grand Jury.” U.S. Const. amend. V. 

At the same time, we cannot agree with Ms. Farr’s additional argument that there

exists insufficient evidence in this record to sustain her conviction and thus that

she cannot be subjected to retrial under a lawful indictment. Accordingly, we

reverse but leave open the possibility of a new trial under a new indictment.

I

A

The Internal Revenue Code (“Code”) requires “employer[s]” to deduct from

their employees’ wages the employees’ share of FICA and individual income

taxes. See 26 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. 26 U.S.C. § 3403.1

 These withheld amounts are

considered to be held in a “special fund in trust for the United States” after

collection each pay period until they are remitted to the government. 26 U.S.C.
- 3 -

§ 7501; see Slodov v. United States, 436 U.S. 238, 243 (1978). After the

employer pays net wages to its employees, the withheld taxes are credited to the

employees “regardless of whether they are paid by the employer, so that the IRS

has recourse only against the employer for their payment.” Slodov, 436 U.S. at

243 (emphasis added).

From 1984 through 1999, Ms. Farr served as the general manager or

administrator of her husband’s alternative medicine clinic in Oklahoma City,

which he operated from 1978 until his death in December 1998. Apparently to

avoid Internal Revenue Service (“IRS”) scrutiny and collection efforts, the clinic

used several names and associated tax identification numbers over the years,

operating variously as “Genesis Medical Center,” “Crossroads Unlimited Trust,”

and “ATHA-Genesis.” Throughout its years of operation, the clinic filed

quarterly federal tax returns (IRS Form 941) reporting wages paid and federal

taxes withheld for employees, but failed conspicuously to pay those withheld

quarterly employment taxes over to the federal government. The clinic’s everchanging name and tax identification number aided its efforts to avoid detection,

making it difficult for IRS revenue officers to locate assets for the collection of

the delinquent employment taxes. 

The IRS is, of course, hardly without recourse in such circumstances. The

Code provides a broad array of tools for the IRS to collect the withheld

employment taxes from employers who neglect to pay as required by Section
2

 Section 6672 provides, inter alia: 

Any person required to collect, truthfully account for, and pay over

any tax imposed by this title who willfully fails to collect such tax,

or truthfully account for and pay over such tax, or willfully attempts

in any manner to evade or defeat any such tax or the payment

thereof, shall, in addition to other penalties provided by law, be

liable to a penalty equal to the total amount of the tax evaded, or not

collected, or not accounted for and paid over. . . .

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3403. See Slodov, 436 U.S. at 243-44. In addition, 26 U.S.C. § 6672 allows the

IRS, in effect, to pierce the corporate veil and proceed against individual officers

or employees responsible for collecting the offending company’s quarterly

employment taxes. Specifically, Section 6672 provides that the officers or

employees who, on behalf of an employer, are responsible for collecting

withholding taxes and paying them over to the government, and who willfully fail

to do so, may be personally assessed a civil penalty equal to the amount of the

delinquent taxes.2

 See Bradshaw v. United States, 83 F.3d 1175, 1178 (10th Cir.

1995) (“The § 6672 penalty may be assessed against (1) any responsible person

(2) who has willfully failed to collect, account for, or pay over federal

employment taxes.”). This is exactly how the IRS proceeded in this case,

assessing a Section 6672 “trust fund recovery penalty” against Ms. Farr, as the

person allegedly responsible for turning over the clinic’s withheld quarterly

employment taxes to the government. 
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When Ms. Farr did not pay the penalty assessed against her, a civil

proceeding evolved into a criminal one. The government sought and received an

indictment in August 2006 against Ms. Farr. Specifically, the grand jury charged

Ms. Farr under 26 U.S.C. § 7201, a generic tax evasion provision providing that 

[a]ny person who willfully attempts in any manner to evade or

defeat any tax imposed by this title or the payment thereof shall, in

addition to other penalties provided by law, be guilty of a felony

and, upon conviction thereof, shall be fined not more than $100,000

($500,000 in the case of a corporation), or imprisoned not more than

5 years, or both, together with the costs of prosecution. 

Significantly for our purposes, however, the government chose in this case not to

seek a broad indictment simply reciting the generic language of Section 7201, but

instead deliberately added additional detail to its charge. As adopted by the grand

jury, the indictment alleged, in pertinent measure,

[t]hat beginning on or about the 12th day of November, 2001, and

continuing until the present, in the Western District of Oklahoma and

elsewhere, SKOSHI THEDFORD FARR, the defendant herein, a

resident of Oklahoma City, Oklahoma, and Grants Pass, Oregon, did

willfully attempt to evade and defeat the payment of the quarterly

employment tax for ATHA-Genesis Chapter due and owing by her to

the United States of America for the quarters 6-99, 9-99, and 12-99

in the amount of $72,076.21 by concealing and attempting to conceal

from the Internal Revenue Service the nature and extent of her assets

and the location thereof and placing funds and property in the names

of nominees. All in violation of Title 26, United States Code,

Section 7201. 
3

 This language is drawn from Count Two of the indictment. Count One

similarly charged Ms. Farr with evading quarterly employment taxes due for

1995, a period during which Mr. Farr was still alive and operating the clinic;

because the jury acquitted Ms. Farr on that count, it is not before us in this

appeal.

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Aplt. App. # 2 at 2-3 (emphasis added).3 

B

At trial, Ms. Farr’s counsel repeatedly called attention to the fact that the

grand jury’s indictment charged her with evading payment of the “quarterly

employment tax for [the clinic] due and owing by her.” Counsel urged that an

acquittal was required because, under Section 3403, quarterly employment taxes

are the sole responsibility of the “employer,” specifically identified in the

indictment as the ATHA-Genesis Clinic. Counsel noted that Ms. Farr was not the

“employer” and quarterly employment taxes thus were not and could never have

been, as alleged, “due and owing from her.” Rather, counsel argued, Ms. Farr

was only ever personally assessed, and failed to pay, a “trust fund recovery

penalty” under Section 6672, a matter that counsel argued was not encompassed

within the indictment. Counsel introduced this theory to the jury as early as his

opening statement:

The evidence will be that she hasn’t been indicted for failure to pay,

the testimony of witnesses will be trust fund recovery penalty

assessments, but quarterly employment taxes. And I submit to you

that the witnesses in this case will testify that she did not evade the

payment of these quarterly employment taxes for Crossroads [or]

ATHA-Genesis, as alleged by the government.
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Aplt. App. # 6. 

As counsel predicted, the government pursued at trial the theory that Ms.

Farr should be found guilty by virtue of her failure to pay the trust fund recovery

penalty assessed against her personally. Indeed, the government’s first witness,

IRS officer Mr. Ambuehl, testified that the IRS had assessed the Section 6672

trust fund recovery penalty against Ms. Farr for the clinic’s failure to pay its

quarterly employment taxes, and that she had not paid the outstanding penalty. 

On cross examination, Ms. Farr’s counsel elicited testimony from Mr. Ambuehl

that the “quarterly employment taxes” charged in the indictment were the

responsibility solely of the clinic as the “employer”; that Ms. Farr was never the

employer; that the unpaid quarterly employment taxes were not her taxes, but

those of the clinic; that Ms. Farr’s failure to pay the trust fund recovery penalty

when it was assessed against her was not charged in the indictment; and that

quarterly employment taxes and trust fund recovery penalties are separate

liabilities, due from different parties. Aplt. App. # 7. 

This (promising for the defense) line of questioning continued throughout

trial. Eventually, the district court intervened to address “the issue raised by the

indictment.” Aplt. App. # 11 at 112-13. Noting that the government had “four

years [prior to trial] to get it right in the indictment,” the district court expressed

concern that the indictment was legally deficient by charging Ms. Farr for a crime
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that its own witnesses suggested only the clinic could commit. Aplt. App. # 16. 

After contemplating a motion for judgment of acquittal, however, the court

eventually sought to save the trial by preparing a jury instruction requiring the

jury to treat the trust fund recovery penalty discussed at trial and the quarterly

employment tax referenced in the indictment as interchangeable terms: 

You are instructed that, as a matter of law, for all purposes relevant

to this case, the Trust Fund Recovery Penalty assessed against the

defendant is to be treated as the equivalent of the quarterly

employment tax referred to in Count 1 and Count 2 of the indictment. 

Aple. App. at 7. The court acknowledged, with some regret, that its jury

instruction “forecloses [closing] argument that the defendant did not evade the

quarterly employment tax because all she was ever assessed for was the trust fund

recovery penalty,” and “cuts . . . clean off” Ms. Farr’s primary trial defense based

on the language of the indictment. Aplt. App. # 11 at 115, 114. The court went

on to state that “it rankles me to be having to scab over this problem [that] could

so easily have been avoided. . . . [B]y giving this instruction, I’m pulling the case

out of the ditch for the government, and as I said, it rankles me to have to be

doing that.” Id. Aplt. App. # 11 at 113, 115. Ultimately, the jury convicted Ms.

Farr, and the district court sentenced her to thirty months in prison, three years of

supervised release, and $72,076.21 in restitution, but suspended the sentence

pending this appeal. 
- 9 -

II

On appeal, Ms. Farr first asserts that the government’s evidence at trial and

the contested jury instruction constructively amended the indictment against her

by allowing the jury to convict her for failing to pay the trust fund recovery

penalty rather than evading the quarterly employment taxes of ATHA-Genesis, as

alleged in the indictment. We review de novo the question whether the district

court proceedings constructively amended the indictment, United States v. Bishop,

469 F.3d 896, 902 (10th Cir. 2006), and in doing so ultimately agree with Ms.

Farr.

A

It is axiomatic in our legal system that “a court cannot permit a defendant

to be tried on charges that are not made in the indictment against him.” Stirone v.

United States, 361 U.S. 212, 217 (1960); see Schmuck v. United States, 489 U.S.

705, 717 (1989) (“It is ancient doctrine of both the common law and of our

Constitution that a defendant cannot be held to answer a charge not contained in

the indictment brought against him.”). This prohibition derives from the Fifth

Amendment guarantee that “[n]o person shall be held to answer for a[n] . . .

infamous crime, unless on a presentment or indictment of a Grand Jury,” U.S.

Const. amend. V, as well as the Sixth Amendment’s assurance of a defendant’s

right “to be informed of the nature and cause of the accusation” against him or
- 10 -

her, id. amend. VI. See Bishop, 469 F.3d at 902. As the Supreme Court long ago

instructed,

[i]f it lies within the province of a court to change the charging part

of an indictment to suit its own notions of what it ought to have

been, or what the grand jury would probably have made it if their

attention had been called to suggested changes, the great importance

which the common law attaches to an indictment by a grand jury, as

a prerequisite to a prisoner’s trial for a crime, and without which the

constitution says ‘no person shall be held to answer,’ may be

frittered away until its value is almost destroyed. . . . 

. . . Any other doctrine would place the rights of the citizen, which

were intended to be protected by the constitutional provision, at the

mercy or control of the court or prosecuting attorney; for, if it be

once held that changes can be made by the consent or the order of the

court in the body of the indictment as presented by the grand jury,

and the prisoner can be called upon to answer to the indictment as

thus changed, the restriction which the constitution places upon the

power of the court, in regard to the prerequisite of an indictment, in

reality no longer exists.

Ex parte Bain, 121 U.S. 1, 10, 13 (1887), overruled in part on other grounds by

United States v. Cotton, 535 U.S. 625 (2002). 

These observations remain no less binding upon us today. Accordingly,

“after an indictment has been returned its charges may not be broadened through

amendment except by the grand jury itself.” Stirone, 361 U.S. at 215-16; see

United States v. Miller, 471 U.S. 130, 143 (1985). An unconstitutional

constructive amendment of a grand jury’s indictment occurs when the evidence

presented at trial, together with the jury instructions, “so alter[s] [the indictment]
- 11 -

as to charge a different offense from that found by the grand jury.” Miller, 471

U.S. at 144; see Stirone, 361 U.S. at 213 (“The crucial question here is whether

[the defendant] was convicted of an offense not charged in the indictment.”);

United States v. Apodaca, 843 F.2d 421, 428 (10th Cir. 1988) (“An indictment is

constructively amended if the evidence presented at trial, together with the jury

instructions, raises the possibility that the defendant was convicted of an offense

other than that charged in the indictment.”). In assessing a claim of an

impermissible constructive amendment, our ultimate inquiry is whether the crime

for which the defendant was convicted at trial was charged in the indictment; to

decide that question, we therefore compare the indictment with the district court

proceedings to discern if those proceedings broadened the possible bases for

conviction beyond those found in the operative charging document. See Miller,

471 U.S. at 138-40, 144-45; Stirone, 362 U.S. at 216-17; United States v. Sells,

477 F.3d 1226, 1237 (10th Cir. 2007); Hunter v. New Mexico, 916 F.2d 595, 599

(10th Cir. 1990). 

B

Measuring against this standard, we are persuaded that the trial proceedings

in this case effected a constructive amendment of the indictment against Ms. Farr. 

The indictment charged Ms. Farr with willfully attempting “to evade and defeat

the payment of the quarterly employment tax for ATHA-Genesis Chapter due and
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owing by her.” But a potentially fatal incongruity soon emerged at trial: the

government’s own witnesses indicated that quarterly employment taxes are only

ever due from an employer, conceded that Ms. Farr was not the employer in this

case, and admitted that she never owed quarterly employment taxes for the clinic. 

In the face of this, the government sought to proceed against Ms. Farr for her

failure to pay the trust fund recovery penalty subsequently assessed against her

personally by the IRS under Section 6672. The district court understandably

sought to save the trial it had begun and agreed to give the contested jury

instruction. But that instruction, by dictating to the jury that the trust fund

recovery penalty and the quarterly employment taxes are the same thing,

effectively allowed the jury to convict Ms. Farr for failing to pay either the

clinic’s quarterly employment taxes purportedly “due and owing by her” or the

trust fund recovery penalty assessed personally against her. That is, the district

court essentially allowed the jury to consider two possible bases for conviction –

the flawed one outlined in the indictment and another more accurate one added at

trial.

Had the government simply charged Ms. Farr generically under Section

7201 with the willful evasion of a tax, we might have a different situation. But it

did not. Instead, the government opted to include in its indictment particulars

about the nature of the tax at issue, specifically charging her with evading the

“quarterly employment tax for ATHA-Genesis Chapter due and owing by her.” It
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is settled law in this circuit, as elsewhere, that the language employed by the

government in its indictments becomes an essential and delimiting part of the

charge itself, such that “[i]f an indictment charges particulars, the jury

instructions and evidence introduced at trial must comport with those particulars.” 

Bishop, 469 F.3d at 902, 903 (holding that indictment limited the basis for

conviction to a specific firearm by adding the phrase “any ammunition and

firearm which has been shipped or transported in interstate commerce[,] that is a

Hi-Point 9 mm pistol” (emphasis added)). By charging Ms. Farr with willfully

attempting to defeat the “payment of the quarterly employment tax . . . due and

owing by her,” the indictment effectively limited the first element of Section 7201

– a substantial tax due and owing – to liability for quarterly employment taxes

which she purportedly owed. From that point on, absent a proper amendment to

the indictment by the grand jury, the government was not free to prove any other

tax liability at trial. See Stirone, 361 U.S. at 218 (“It follows that when only one

particular kind of commerce is charged to have been burdened a conviction must

rest on that charge and not another, even though it be assumed that under an

indictment drawn in general terms a conviction might rest upon a showing that

commerce of one kind or another had been burdened.”). The fact that its own

witnesses said Ms. Farr owed no such liability may well have put the government

in a “ditch” but it was a ditch created by the government’s own charging

document.
- 14 -

To be sure, the government submits that a constructive amendment did not

occur because the employment tax and the trust fund recovery penalty are

proverbial alter egos – different words meaning the same thing. And the

government is also surely correct that not every minor variance between the facts

as presented at trial and those alleged in the indictment amounts to an

unconstitutional constructive amendment. See Sells, 477 F.3d at 1237; United

States v. Williamson, 53 F.3d 1500, 1513 (10th Cir. 1995); 1 Wright & Miller,

Fed. Prac. & Proc. Crim. 3d § 128. Although the distinction between the concept

of a permissible variance (reversible only upon a showing of prejudice) and an

impermissible constructive amendment (categorically impermissible under our

Constitution) “has been aptly described as ‘sketchy,’” Wright & Miller § 128, the

Supreme Court has sought to clarify that a variation between the evidence at trial

and the indictment generally does not rise to the level of an unconstitutional

constructive amendment if it does not raise the possibility that the defendant was

convicted of an offense other than that charged in the indictment. See Miller, 471

U.S. at 136-39, 145 (distinguishing constructive amendments from variances on

the basis that the former “broaden [ ] the possible bases for conviction from that

which appeared in the indictment”); Stirone, 361 U.S. at 217; Sells, 477 F.3d at

1237; Wright & Miller § 128. 

The difficulty for the government in this particular case is that the

difference between the quarterly employment taxes and the trust fund recovery
4

 Courts and commentators have long referred to the equitable principle of

lifting or drawing aside the “thin guise” that is “the veil of corporate entity” to

expose the actual individuals “hiding behind” it. I.M. Wormser, Piercing the Veil

of Corporate Entity, 12 Colum. L. Rev. 496, 504, 499, 497 (1912); see Fairfield

County Tpk. Co. v. Thorp, 13 Conn. 173, 179 (Conn. 1839). The requirements

imposed by the states to justify piercing the veil in corporate law vary and “are

virtually limitless, but the courts have repeatedly relied on the presence of certain

factors. . . . [T]hree of the most frequently cited factors are

(1) undercapitalization; (2) a diversion of funds by the dominant shareholders(s);

and (3) the failure to observe corporate formalities.” 45 Am. Jur. Proof of Facts

(continued...)

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penalty is not merely a semantic one under our precedent. We have previously

held that the trust fund recovery “penalty is distinct from and in addition to the

employer’s liability for [the employment] taxes,” Bradshaw, 83 F.3d at 1178, and

we are of course bound by that holding. See also Michael I. Saltzman, IRS

Practice & Procedure ¶ 17.06[1] (“Liability for the penalty and the employer’s

liability for withholding and employment taxes are separate and distinct, but

related.”). Neither does the government in this case offer us any persuasive

reason for a contrary holding. While the ultimate object of the IRS’s interest –

recovering the underlying delinquent tax – is undoubtedly the same, the quarterly

employment tax provision of Section 3403 and the trust fund recovery penalty of

Section 6672 provide materially different means for achieving that end. In much

the same way that the traditional equitable law concept of piercing the corporate

veil broadens responsibility for the same liability from the corporation to its

individual officers and directors, but requires a different set of proof and

implicates a different set of defenses in order to do so,4

 employer liability under
4

(...continued)

3d 1 Part C; see also id. at § 24 (listing elements of proof, in addition to the

liability of the corporation itself, useful for establishing liability of individual

defendants for corporate obligations via piercing the corporate veil).

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Section 3403 and employee liability under Section 6672 involve different

elements and defenses to secure the same pool of money. Liability for quarterly

employment taxes extends only to employers, 26 U.S.C. § 3403; see Slodov, 436

U.S. at 243, while liability for a trust fund recovery penalty depends on a showing

that the defendant was the person responsible for paying over the employer’s

taxes to the IRS and that the defendant acted with the requisite willfulness in

failing to do so, Bradshaw, 83 F.3d at 1178; see Burden v. United States, 486

F.2d 302, 304 (10th Cir. 1973); Larry Heinkel, Eliminating IRS Tax Debts, 82 Fla.

B.J. 56, 58 (2008) (“I.R.C. § 6672 is needed to pierce the corporate veil and does

so by imposing a civil penalty.”). The difference between the two provisions is

illuminated by the fact that, when officers or employees contest the assessment of

the trust fund recovery penalty against them, they need not (and often do not)

debate the employer’s liability for the underlying employment taxes but instead

contest whether they qualify as “responsible persons” under the statute. See, e.g.,

Bradshaw, 83 F.3d at 1178; Denbo v. United States, 988 F.2d 1029, 1032 (10th

Cir. 1993). Meanwhile, as here, an individual like Ms. Farr charged for failure to

pay quarterly employment taxes allegedly “due and owing by her” may fairly

attempt to defend the charge on the basis that she was not the employer from
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whom the tax was, in fact, due and owing. In this case, however, the government

was allowed to proceed at trial against Ms. Farr not merely on the basis of unpaid

quarterly employment taxes purportedly “due and owing by her,” but also on the

basis of the unpaid trust fund recovery penalty, assessed by virtue of her position

as a person responsible for the payment of quarterly employment taxes owed by

the clinic, even though the government never received a grand jury indictment

against her on this latter basis. In a real sense, it is as if Ms. Farr had been

charged first as if she were herself the corporate employer with quarterly tax

liability and then, after the government’s witness admitted Ms. Farr was not the

employer and owed no quarterly employment taxes, separately and additionally

charged as a person responsible for the corporation’s liabilities under a veilpiercing theory. Simply put, as the district court aptly observed at sentencing,

Ms. Farr was “charged with evading a tax that [she] never owed and for which

[she] w[as] never assessed” (quarterly employment taxes), and when the

government detected the problem at trial, “it turned out that I had to fix the

indictment in the jury instructions.” Aplt. App. # 16. 

In reaching the conclusion that the government at trial effected an

impermissible constructive amendment of the indictment, we note that we have no

occasion to pass on the additional – and purely hypothetical – question whether

the government could have proceeded against Ms. Farr under Section 7201 on the

theory that, while the clinic, not she, was the employer, she willfully attempted to
5

 As the government notes, while there is a linguistic distinction between

the term “tax” employed in Section 7201 and the term “penalty” used in Section

6672, 26 U.S.C. § 6671 explicitly states that, “[e]xcept as otherwise provided,”

any Code reference to a “tax” imposed also includes penalties and liabilities such

as the trust fund recovery penalty. At the same time, as the defendant notes,

Section 7202 may provide a more tailored avenue for prosecution of those who

fail to pay Section 6672 assessments: Section 7202 tracks the language of

Section 6672 and makes a responsible employee’s willful failure to pay a felony

punishable by five years in prison and a $10,000 fine. See 26 U.S.C. § 7202. 

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“defeat” payment of the clinic’s Section 3403 quarterly employment taxes. That

is a course the government did not pursue at trial or on appeal before us (neither

is it clear whether the government could have pursued such a course under the

terms of its indictment in this case: again, the indictment alleged, paradoxically

in light of its own witnesses’ testimony that the clinic was the employer

responsible for payment of quarterly taxes, that quarterly employment taxes “were

due and owing by her [i.e., Ms. Farr]”). Likewise, we have no reason to pass on

the parties’ passing and undeveloped dispute whether Section 7201, rather than

Section 7202, is an appropriate vehicle for prosecuting evasion of the Section

6672 trust fund recovery penalty.5

 Instead, we limit our analysis and holding

today to the question whether a constructive amendment of the indictment

occurred when the government proceeded against Ms. Farr for nonpayment of the

trust fund recovery penalty in the face of an indictment that never referenced such

a liability.
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On this dispositive score, our case is very much like Stirone. There, the

indictment charged the defendant with unlawfully obstructing or affecting

interstate commerce – specifically, the importation of sand for the manufacture of

cement – by extortion and threats in violation of the Hobbs Act. Stirone, 361

U.S. at 213-14. At trial, the district court permitted the government to prove, and

instructed the jury, that the affected commerce was either the importation of sand

or the use of the concrete to construct a mill that would manufacture steel

products to be shipped interstate. Id. at 214. The Supreme Court held that the

evidence and instruction charging interference with steel exports constructively

amended the indictment by allowing the jury to convict the defendant for a crime

other than that charged in the indictment, interference with sand imports. This

amendment, the Court held, “destroyed the defendant’s substantial right to be

tried only on charges presented in an indictment returned by a grand jury”

because “it cannot be said with certainty that with a new basis for conviction

added, [the defendant] was convicted solely on the charge made in the indictment

the grand jury returned.” Id. at 217. Similarly, in the case before us, the

indictment charged a general crime but specified the way in which it was

accomplished – in Stirone it was the specific commerce obstructed, and here it

was the specific tax evaded. Yet, the evidence and jury instructions at trial

introduced to the jury an alternative way in which the crime could have occurred

– a different commerce obstructed in Stirone and a different tax evaded in this
6

 See also Hunter, 916 F.2d at 599 (holding that jury instruction and

testimony about digital penetration constructively amended indictment charging

defendant with criminal sexual penetration by “sexual intercourse” only).

- 20 -

case. As in Stirone, Ms. Farr’s jury was allowed to convict her for a crime

(evading the trust fund recovery penalty) different from that charged in the

indictment (evading the payment of quarterly employment taxes). We therefore

cannot say with certainty that she was convicted solely on the charge made in the

indictment the grand jury returned, as the Fifth Amendment requires.6

C

The government responds that Ms. Farr cannot credibly claim to have

suffered from a prejudicial lack of notice about the government’s intentions. In

doing so, the government rightly observes that Ms. Farr had been assessed the

trust fund recovery penalty on the date cited in the indictment in an amount

corresponding exactly to the amounts cited in the indictment. Even so, the

question of a prejudicial lack of notice is not so clear cut. As defense counsel

stresses, his primary trial tactic (suggesting that the clinic, not Ms. Farr, was the

employer responsible and assessed for paying quarterly employment taxes) was

stripped from him very near the end of trial, after he had devoted considerable

time to its presentation and development in his opening statement and witness

examinations before the jury. As the district court acknowledged, it is “not an

unfair characterization of the situation” to say that counsel was “denied . . . the
7

 We acknowledge that in some constructive amendment cases we have

loosely invoked the term “harmless error.” See Bishop, 469 F.3d at 902, 904;

United States v. Tieu, 279 F.3d 917, 921 (10th Cir. 2002). In reality, however, we

declined to reverse convictions in these cases only because the alleged variation

from the indictment at trial did not raise the possibility that the defendant was

convicted of a crime different from that charged in the indictment – that is, there

simply was no conviction under an improperly added charge. See Tieu, 279 F.3d

(continued...)

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right to present the defense based on the indictment [the government] g[ave]”

him, and which he pursued through much of trial. Aplt. App. # 11 at 114, 115. 

More fundamentally still, the prohibition on constructive amendments is

grounded not just in the Sixth Amendment’s notice requirement but also in the

grand jury guarantee of the Fifth Amendment. “As the dual source of the rule

makes clear, it protects both a defendant’s right to be subjected only to charges

set by a grand jury and his interests in having sufficient notice.” United States v.

Gonzalez-Edeza, 359 F.3d 1246, 1250 n.1 (10th Cir. 2004). In addition to any

Sixth Amendment notice guarantees, the Fifth Amendment right “to have the

grand jury make the charge on its own judgment is a substantial right which

cannot be taken away with or without court amendment,” Stirone, 361 U.S. at

218-19, and it provides a sufficient basis, standing alone, to compel reversal

without any further showing of prejudice, see id., 361 U.S. at 217 (“Deprivation

of such a basic right is far too serious to be . . . dismissed as harmless error.”);

Sells, 477 F.3d at 1237 (constructive amendment “is reversible per se”); Apodaca,

843 F.2d at 428.7

 
7

(...continued)

at 921 (“Even if we assumed the jury instructions improperly allowed the jury to

convict for possession of ammunition, the error was rendered harmless when the

district court dismissed the ammunition charge” and the special verdict form

showed the jury unanimously convicted defendant for the charged conduct of

possessing a firearm.); Bishop, 469 F.3d at 904 (special verdict form showed the

jury convicted defendant for unlawful possession by virtue of the charged conduct

of possessing a pistol as well as the uncharged conduct of possessing a bullet); cf.

Apodaca, 843 F.2d at 428 (“[N]o constructive amendment arises from the

admission of acts not charged in the indictment when the court’s instructions to

the jury preclude the possibility that the defendant was convicted on those acts.”). 

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Separately, the government defends its expansion of the indictment on the

basis of an unreported district court case which it reads as holding the trust fund

recovery penalty “interchangeable” with the quarterly employment taxes, United

States v. Scotto, 2006 WL 2494430 (S.D.N.Y. 2006). We do not read Scotto so

sweepingly. Rather, that case illustrates and underscores only how the particulars

alleged by the government in each indictment matter, and is a confirmation of our

practice, stressed in Bishop, of giving meaning to those particulars. There, much

as here, the charging paragraph of the indictment charged a Ralph Scotto with

evading and defeating “the payroll tax” for certain businesses. Id. at *3. But

there, very much unlike here, the grand jury’s indictment expressly went on to

explain and define this charge in terms of the defendant’s personal failure to pay

the trust fund recovery penalty, stating that 

On or about December 23, 1991, the IRS assessed SCOTTO

personally, as a “person required to collect, truthfully account for,

and pay over any tax imposed” by the Internal Review Code, 26

U.S.C. § 6672(a), approximately $32,428.98 for unpaid payroll taxes
8

 Further underscoring the unlikelihood that the court meant to equate the

(continued...)

- 23 -

withheld from employees of Waterset, an amount known as a Trust

Fund Recovery Penalty. . . . SCOTTO has evaded payment of Trust

Fund Recovery Penalties totaling approximately $49,663.24 for

payroll taxes withheld from employees of Waterset and R3A6 for

payment on their behalf to the IRS.

Id. at *5-6. In analyzing this language, the district court observed in the course of

denying Mr. Scotto’s motion to dismiss the indictment that “[t]he Indictment

explains that Scotto, pursuant to 26 U.S.C. § 6672(a), is a person responsible for

the unpaid payroll taxes of these two corporate entities. . . . Scotto is charged as

a responsible person pursuant to Section 6672, not as an employer pursuant to

Section 3403.” Id. at *3, 4.

The Scotto court did not purport to hold that the trust fund recovery penalty

is, as a matter of law, always and everywhere a synonym for quarterly

employment taxes. Rather, it only held that, as used in the peculiar indictment

before it, the use of the term “payroll tax” was not fatal because the document

defined that term by express reference to the trust fund recovery penalty: “the

term ‘Trust Fund Recovery Penalty’ is interchangeable with the language ‘payroll

tax’ charged in Count One of the Indictment and the Indictment is not facially

insufficient for the Government’s failure to use the term ‘Trust Fund Recovery

Penalty’ in [one charging paragraph], especially since the term was used, and

defined, elsewhere in the Indictment.” Id. at *5.8

 We have no quarrel with any
8

(...continued)

term “payroll tax” with “trust fund recovery penalty” as a matter of law for all

purposes based merely on Section 6671’s statement that the term “tax” in the

Code usually also means “penalty,” see Scotto, 2006 WL 2494430 at *4-5, we

note that the trust fund recovery penalty applies to all withholding regimes the

Code creates, including various retail and manufacturers’ excise taxes, not just

payroll employment taxes. See IRS Practice & Procedure ¶ 17.06. 

9

 The government suggests it might have addressed the problem with its

indictment in this case if Scotto had been decided earlier, but without the benefit

of the case it could not have foreseen the problem. But, while it is surely true

that Scotto was decided after the indictment in this case, it came only two weeks

after the entry of this indictment, over five months before trial began, and the

government was of course free to seek a superseding indictment at any time prior

to trial.

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of this. Our difficulty lies simply in the fact that the indictment against Ms. Farr

did nothing of this sort, making no reference whatsoever to the trust fund

recovery penalty or Section 6672; neither did the government mention the penalty

in its responsive pleadings in the district court, including its bill of particulars. 

While the language of Mr. Scotto’s indictment left no doubt that the grand jury

charged him with evading the trust fund recovery penalty and afforded him notice

that he would be tried for the payroll taxes “as a responsible person pursuant to

Section 6672,” the same simply cannot be said of Ms. Farr’s indictment. And

each indictment must be assessed on its own terms.9

 

III

In addition to challenging the propriety of the charge she faced before the

jury, Ms. Farr contends there was insufficient evidence to convict her of that
10 The double jeopardy clause provides, “nor shall any person be subject

for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V.

- 25 -

charge. She presses this separate challenge surely well aware of the “venerable

principle of double jeopardy jurisprudence,” that “[t]he successful appeal of a

judgment of conviction, on any ground other than the insufficiency of the

evidence to support the verdict, poses no bar to further prosecution on the same

charge.” United States v. Scott, 437 U.S. 82, 90-91 (1978); see also United States

v. Pearl, 324 F.3d 1210, 1214 (10th Cir. 2003). In assessing her challenge on this

front, however, we are obliged to construe the evidence in the light most

favorable to the government, see United States v. Rakes, 510 F.3d 1280, 1284

(10th Cir. 2007); in doing so we conclude that the government has adduced ample

evidence from which a jury could find Ms. Farr guilty of evading the trust fund

recovery penalty, and thus, that no double jeopardy impediment exists to her

retrial.

A

We begin by noting that our ruling on the constructive amendment question

does not speak to the question of evidentiary sufficiency, and thus does not

implicate double jeopardy concerns. While a ruling that the evidence is

insufficient to support a conviction is equivalent to a judgment of acquittal, and

any retrial would thus unconstitutionally place the defendant in double jeopardy,10
- 26 -

the government may retry a defendant whose conviction is set aside due to defects

in the trial process. See United States v. Burks, 437 U.S. 1, 16 (1978); Scott, 437

U.S. at 91; Pearl, 324 F.3d at 1214; United States v. Dalton, 990 F.2d 1166, 1168

(10th Cir. 1993) (discussing Montana v. Hall, 481 U.S. 400 (1987)). The

constructive amendment error we have identified in Ms. Farr’s trial falls firmly in

this latter category. 

The point of the double jeopardy clause is to prevent retrial on a charge of

which the defendant has been effectively acquitted (and to prevent second

punishment for a crime for which the defendant has already been punished, a

problem happily not at issue here). See Hall, 481 U.S. at 403-04 & n.1. An

erroneous constructive amendment, however, does nothing to imply an

insufficiency in the evidence to support the jury’s verdict convicting Ms. Farr of

violating Section 7201, at least by evading the trust fund recovery penalty. 

Accordingly, “[p]ermitting retrial in this instance is not the sort of governmental

oppression at which the Double Jeopardy Clause is aimed; rather, it serves the

interest of the defendant by affording [her] an opportunity to ‘obtain a fair

reajudication of [her] guilt free from error,’” Lockhart v. Nelson, 488 U.S. 33, 42

(1988) (quoting Burks, 437 U.S. at 15), and serves society’s “valid concern for

insuring that the guilty are punished,” Burks, 437 U.S. at 15. In this respect, a

reversal for the introduction of a constructive amendment is akin to a reversal for

the “incorrect receipt or rejection of evidence,” in that, while exposing an error in
- 27 -

the trial process in need of correction, it “implies nothing with respect to the guilt

or innocence of the defendant,” Dalton, 990 F.2d at 1168 (quoting Lockhart, 488

U.S. at 40). We note that a sister circuit has reached exactly this conclusion in

the constructive amendment context, see United States v. Mize, 820 F.2d 118,

119-120 (5th Cir. 1987), as have we previously, if perhaps only by implication,

see Hunter, 916 F.2d at 600 (remanding case for retrial, without discussion, after

reversing the conviction due to constructive amendment). 

B

Turning directly to Ms. Farr’s sufficiency challenge, and thus whether a

retrial would expose her to impermissible double jeopardy, we consider whether

sufficient evidence was introduced at trial to support the verdict the jury

rendered, Scott, 437 U.S. at 90-91; Hall, 481 U.S. at 403-04; Lockhart, 488 U.S.

at 40-42; Dalton, 990 F.2d at 1168, and thus in this case whether a violation of

Section 7201 occurred, either by evasion of the quarterly employment taxes or the

trust fund recovery penalty. Viewing the facts in the light most favorable to the

government, we cannot help but conclude that the government presented

sufficient evidence from which the jury could find that Ms. Farr (1) owed a

substantial tax liability, at least in the form of the trust fund recovery penalty;

(2) acted willfully; and (3) committed an affirmative act of evasion or attempted

evasion. See United States v. Thompson, 518 F.3d 832, 850 (10th Cir. 2008). 
11 In a footnote, Ms. Farr also asserts that there was insufficient evidence

to support the first element of the crime because, as she asserted in her argument

for reversal, she did not personally owe the quarterly employment taxes of

ATHA-Genesis. We need not pass on this argument because sufficient evidence

showed that she at least owed the trust fund recovery penalty, which is, as we

have already explained in footnote 5, also a “substantial tax liability.” See 26

U.S.C. § 6671. To the extent that she challenges the use of Section 7201 rather

than Section 7202 to prosecute her failure to pay a Section 6672 liability, that

question does not pertain to evidentiary sufficiency but is a question of law we

have left open. See supra Part II.B. 

- 28 -

The evidence at trial showed that Ms. Farr was the employee responsible for

withholding and paying over to the government the quarterly employment taxes of

ATHA-Genesis during 1999 when the clinic did not pay those taxes; that Ms. Farr

was assessed the trust fund recovery penalty in relation to those taxes but did not

pay the penalty; and that Ms. Farr did not have bank accounts or assets in her own

name but used a corporate account as her own and directed her children to buy

and sell assets on her behalf during this time period.

Before us, Ms. Farr challenges only the government’s evidence on the third

element of the crime, namely the existence of an affirmative act of evasion or

attempted evasion.11 “An affirmative act requires more than the passive failure to

file a tax return; it requires a positive act of commission designed to mislead or

conceal. The government only needed to show one affirmative act of evasion for

each count of tax evasion.” Thompson, 518 F.3d at 852 (internal citation and

quotations omitted). At trial, the government introduced evidence that Ms. Farr

had no bank accounts in her own name but instead incorporated Trinity
12 Because we have resolved this appeal without the need to consider the

items in the government’s addendum to its supplemental appendix, we dismiss

Ms. Farr’s motion to strike it as moot. We deny Ms. Farr’s motion to strike the

government’s entire answer brief. Because we reverse Ms. Farr’s conviction on

the basis of an unconstitutional constructive amendment, we also have no need to

consider her alternative challenge that the district court’s contested jury

instruction equating quarterly employment taxes and the trust fund recovery

penalty impermissibly directed the jury that the government had proven the first

essential element of Section 7201 (a substantial tax liability), except to note that

it, too, does not implicate the sufficiency of the evidence against her and thus

could not bar retrial. 

- 29 -

Consulting and Management Company (“Trinity”) in 2000 and established a bank

account in Trinity’s name, with her children as the signators, which she then used

as her personal account. Ms. Farr deposited nearly $49,000 in checks made to her

personally, such as salary, into the Trinity account in 2001 and 2002. She then

had her children sign blank Trinity checks which she would, in her own hand, fill

in and use for personal expenses such as lease payments on her Jaguar, utilities,

credit card payments, and the like. In addition, the evidence showed that nearly

$47,000 was paid directly to Ms. Farr out of the Trinity account. Ms. Farr does

not dispute that this evidence was properly before the jury, only the inference that

use of the Trinity account as her personal account was anything but innocent. 

The jury was free to draw reasonable inferences from the evidence before it, and

this evidence was more than sufficient to allow an inference that Ms. Farr’s use of

the Trinity account was “a positive act of commission designed to mislead or

conceal.” Thompson, 518 F.3d at 852.12
- 30 -

* * *

The quarterly employment taxes of ATHA-Genesis specified in the

indictment against Ms. Farr are not, as the government argues, synonymous with

the trust fund recovery penalty assessed against Ms. Farr. Because the indictment

specifically charged evasion of quarterly employment taxes but the evidence and

jury instructions at trial allowed the jury to convict Ms. Farr for evading the –

substantively different – trust fund recovery penalty, the district court

proceedings unconstitutionally broadened the basis for conviction, constructively

amending the indictment. At the same time, however, the government’s evidence

at trial was legally sufficient to convict Ms. Farr for tax evasion and thus no

double jeopardy impediment exists to her retrial under a properly framed

indictment. 

Reversed and Remanded.