FILED

United States Court of Appeals

Tenth Circuit

June 19, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DOUGLAS R. MADSEN,

Defendant - Appellant.

No. 13-4127

(D.C. No. 2:09-CR-00808-CW-1)

(D. Utah)

ORDER AND JUDGMENT*

Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.

Defendant-Appellant Douglas R. Madsen (“Dr. Madsen”) was convicted by

federal jury of one count of attempted tax evasion. After the jury had returned its

verdict, but before the district court accepted that verdict, the court requested

additional briefing. At this juncture, for the first time, Dr. Madsen raised several

challenges related, among other things, to the statute of limitations, to purported

flaws in the indictment, and to the jury instructions and the verdict form. After

* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Federal Rule of Appellate

Procedure 32.1 and Tenth Circuit Rule 32.1.
fourteen months of extensive briefing and multiple post-trial hearings, the district

court ruled against Dr. Madsen and accepted the jury’s verdict. 

On appeal, Dr. Madsen reasserts his challenges, seeking reversal of his

conviction and arguing specifically: (1) that the statute of limitations barred

prosecution for his evasion of taxes in tax year 1995; (2) that the indictment was

duplicitous because it charged him with evading payment of taxes owed for

multiple years in a single count; and (3) that the jury instructions and verdict form

improperly allowed the jury to convict him without unanimity. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

1

I

Dr. Madsen is a retired chiropractor who operated his own clinic in

Ephraim, Utah. He also owns several parcels of land in Sanpete County, Utah. 

Since 1995, Dr. Madsen has repeatedly failed to pay his taxes, leading to the

instant prosecution. 

A

Dr. Madsen’s problems with the Internal Revenue Service (“IRS” or

“Service”) began in 1995. After the IRS audited the joint federal income tax

returns filed by Dr. Madsen and his wife for tax years 1994 and 1995, the Service

determined that the couple owed additional taxes and penalties. Dr. Madsen

challenged this determination in the United States Tax Court, arguing that “there

1 Judge Hartz joins this order and judgment, except for footnote 10. 

2
is no such organization within the United States Treasury that constitutes the

Internal Revenue Service.” Supp. R., Vol. II, Selected Trial Exs., at 82. The Tax

Court upheld the IRS’s deficiency determination, concluding that Dr. Madsen was

“purely and simply [a] classic tax protestor[].” Id. Dr. Madsen subsequently

failed to file a timely tax return in 1999, and he failed to file tax returns at all for

tax years 2000 to 2004. As of 2006, the IRS determined that Dr. Madsen owed a

total of $884,791 in taxes, penalties, and interest.2

Dr. Madsen also engaged in various efforts to thwart the IRS’s attempts to

collect the taxes he owed. In October 1994, he created trusts into which he

transferred the real property he held. The trustees of these trusts had little

independent decision-making power; they merely transferred property to and from

the trusts at Dr. Madsen’s direction, and Dr. Madsen and his wife continued to

live at one of the properties and receive income from another. 

In June 2003, Dr. Madsen created a new entity, Grand Scale, Inc. (“Grand

Scale”). After the IRS filed a federal tax lien against him and his wife in order to

collect the outstanding taxes, he transferred most of the land held by the trusts to

Grand Scale between September and November 2003. Dr. Madsen attempted to

create the appearance that there was no equity in these properties by signing and

recording fictitious mortgages for amounts greater than the appraised market

2 At the time of trial, Dr. Madsen owed $1,292,078 in assessed taxes,

penalties, and interest. 

3
values of the properties. Later, in 2006, he also filed a false Uniform Commercial

Code (“UCC”) financing statement identifying “Willow Valley Trust”—an entity

for which neither the IRS nor the Utah Department of Commerce had any

records—as a secured creditor of the property held by Grand Scale.

In 2004, after Dr. Madsen sold his chiropractic clinic to Dr. Charles

Howard, the IRS sent a notice of levy to Dr. Howard, directing him to pay the

money he owed Dr. Madsen under the sales contract to the IRS instead. Dr.

Madsen attempted to convince Dr. Howard not to honor the levy in 2005 by

sending him a letter claiming that the IRS had no lawful authority for the levy. 

After Dr. Howard indicated that he nevertheless would pay the IRS, Dr. Madsen

“made a second attempt to stop Dr. Howard . . . , utilizing a false UCC financing

statement that [he had] filed.” Aplee. Br. at 11. Specifically, Dr. Madsen

“showed” that statement to Dr. Howard; it ostensibly indicated that Willow

Valley Trust had a senior security interest in the sales contract—that is, Willow

Valley Trust supposedly had filed a lien “against [the] contract.” Supp. R., Vol.

I, Ex. 5-2, at 1 (Letter, dated Dec. 31, 2006). 

The IRS also served summonses on Dr. Madsen in May 2005, requiring him

to provide information regarding his assets and liabilities. Dr. Madsen met with

the IRS in July 2006, but he provided various false and misleading responses to

the Service’s questions. He repeated these statements before the district court in

January 2007 and was subsequently held in contempt. 

4
B

On October 22, 2009, a federal grand jury returned a one-count indictment

against Dr. Madsen for attempting to evade the payment of taxes in violation of

26 U.S.C. § 7201. Section 7201 states 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 . . . .” Id. The statute of limitations for prosecuting violations of § 7201 is

six years. See id. § 6531(2).

The indictment alleged that between 2003 and 2008, Dr. Madsen engaged

in several affirmative acts of evasion to avoid payment of almost $1.3 million in

taxes, interest, and penalties owed for tax years 1995 and 1999–2004.3

 During a

four-day jury trial, Dr. Madsen represented himself, with standby counsel. Before

the jury retired to consider its verdict, the court instructed it as to the elements of

a conviction under § 7201, the six-year statute of limitations, and the requirement

3 The indictment specifically identified the following acts: (1)

transferring property to Grand Scale; (2) filing fake mortgages on the properties

transferred to Grand Scale; (3) attempting to convince Dr. Howard not to pay the

IRS; (4) falsely representing to Dr. Howard that Willow Valley Trust had a

superior lien on the contract for the sale of Dr. Madsen’s clinic; (5) recording a

UCC financing statement indicating that Willow Valley Trust had a security

interest in the sales contract; (6) recording a UCC financing statement asserting

that Willow Valley Trust had a security interest in the properties held by Grand

Scale; (7) providing false, incomplete, and inaccurate information in response to

the IRS’s attempts to enforce the summonses; and (8) providing false information

in his signed IRS Form 433-A (“Collection Information Statement for Wage

Earners and Self-Employed Individuals”).

5
that its decision be unanimous. The government proposed a general verdict form,

to which Dr. Madsen concedes he did not object. The jury returned a general

verdict stating that it unanimously found Dr. Madsen guilty of attempted tax

evasion as charged in Count One of the Second Superseding Indictment.

After the jury returned its verdict, but before the district court accepted that

verdict, the court sua sponte directed the parties to submit additional briefing on

several questions pursuant to its “responsibility under [Federal] Rule [of Criminal

Procedure] 29 to satisfy itself that there [wa]s sufficient evidence presented to

sustain a conviction.” R., Vol. XII, at 35 (Tr. of Jury Verdict, dated Jan. 12,

2012). 

Dr. Madsen responded to this briefing order in February 2012 by filing a

pro se memorandum, arguing for the first time, inter alia, that the criminal

prosecution based on his evasion of the taxes owed for tax year 1995 was barred

by the statute of limitations. He further argued that if the charge relating to tax

year 1995 were barred by the statute of limitations, then it would be impossible to

tell whether the jury unanimously reached a verdict based on this time-barred year

or on the other charged, but unchallenged, tax years “because the Second

Superseding Indictment is duplicitous.” Id., Vol. II, at 102 (Def.’s Resp. to

Request for Briefing, filed Feb. 9, 2012). The potential lack of unanimity, he

claimed, rendered the jury verdict “suspect and insupportable.” Id.

6
During an April 2012 oral argument, Dr. Madsen moved to arrest judgment

under Rule 34 of the Federal Rules of Criminal Procedure, arguing that the sixyear statute of limitations for tax evasion was a jurisdictional bar to prosecution

or conviction for taxes owed in tax year 1995.4

 He subsequently filed a motion

for judgment of acquittal and a motion for a new trial pursuant to Federal Rules

of Criminal Procedure 29 and 33, respectively. In these motions, Dr. Madsen

sought to incorporate the arguments previously made in his February 2012

memorandum. The government objected to all of these motions as untimely and

on the merits.

In an order dated March 26, 2013, the district court considered the

timeliness of Dr. Madsen’s motions. It found that Dr. Madsen’s briefing that

“respond[ed] to the court’s specific questions,” R. Vol. II, at 315 (Mem. Decision

& Order Entering Verdict, filed Mar. 26, 2013), including the February 2012

memorandum, “functionally served as motions under Rules 29 and 33,” id. at 316. 

Although the motions were unquestionably untimely when so construed, the

4 Rule 34 provides as follows:

(a) In General. Upon the defendant’s motion or on its own, the

court must arrest judgment if the court does not have jurisdiction

of the charged offense.

(b) Time to File. The defendant must move to arrest judgment

within 14 days after the court accepts a verdict or finding of

guilty, or after a plea of guilty or nolo contendere.

Fed. R. Crim. P. 34 (emphasis added). 

7
district court nevertheless concluded that they should be considered on the merits

because, pursuant to Federal Rule of Criminal Procedure 45(b)(1)(B), their tardy

filing “might just be the most straightforward instance of ‘excusable neglect’

possible because, in fact, the court created this procedural abnormality,” id. at

315, by making an “extraordinary request for briefing before accepting the jury’s

verdict,” id. at 316. The court deemed the Rule 34 motion timely because the

court had not even accepted the jury’s verdict at that time. See Fed. R. Crim. P.

34 (ordinarily contemplating that a motion will be filed, inter alia, “after the

court accepts a verdict or finding of guilty” (emphasis added)). 

However, after considering Dr. Madsen’s motions, the court denied all

three. It found that the statute of limitations did not bar prosecution for taxes

owed in tax year 1995, that the indictment was not duplicitous, and that the jury

had been properly instructed as to unanimity. The court thus accepted the jury’s

verdict, entered judgment, and sentenced Dr. Madsen. 

II

Dr. Madsen raises three contentions on appeal: (1) the six-year statute of

limitations bars prosecution for taxes owed in tax year 1995 because there were

no subsequent affirmative acts of alleged evasion until 2003; (2) the indictment

was impermissibly duplicitous because it charged him for evasion over multiple

years in a single count; and (3) the jury instructions and verdict form were

deficient in that they did not require the jury to find that each element of tax

8
evasion was satisfied for every year included in the indictment. Given the

unusual procedural posture of this case—viz., the three issues before us were first

raised after the jury had reached a verdict, but before the judge accepted that

verdict—we first address the threshold question of whether each of the issues has

been properly preserved for appeal. 

We conclude that, irrespective of the fact that the parties extensively

briefed the three issues in the district court and the court ruled on them, Dr.

Madsen did not properly preserve the issues for appellate review. This is so

because Dr. Madsen’s presentation of the issues was untimely for preservation

purposes—specifically, he failed to present the issues to the district court during a

period when the court could have acted to avoid the ostensible errors; instead, he

advanced the issues to the court at a point in the proceedings when it could only

attempt to rectify any errors that already had taken place. 

The question then arises whether Dr. Madsen has waived the issues, as the

government contends. We conclude that he has, and because “a party that has

waived a right is not entitled to appellate relief,” United States v. Teague, 443

F.3d 1310, 1314 (10th Cir. 2006), we uphold the district court’s judgment. 

A

Dr. Madsen argues that we should reach the merits of his three issues

because, “in the present case, the parties extensively briefed, and the district court

carefully examined,” these issues. Aplt. Opening Br. at 21. It is true that the

9
district court had ample opportunity to rule on the claims with the benefit of two

post-trial hearings and numerous briefs that the parties filed. However, simply

raising an issue before the district court is not necessarily sufficient, standing

alone, to preserve a claim; a party must also “make the timely assertion of a

right.” United States v. Wardell, 591 F.3d 1279, 1310 (10th Cir. 2009) (quoting

United States v. Olano, 507 U.S. 725, 733 (1993)) (internal quotation marks

omitted). An objection is timely if it is raised “while the district court still has an

opportunity to fix [the alleged error].” United States v. Banks, 761 F.3d 1163,

1186 (10th Cir.), cert. denied, --- U.S. ----, 135 S. Ct. 308 (2014). 

Put another way, preservation generally requires that the district court be

able to avoid the error at the time the objection is raised, rather than to merely

provide a remedy for any prejudicial effects of the error. See United States v.

Walsh, 75 F.3d 1, 6 (1st Cir. 1996) (“[T]he usual rule is that an objection must be

made known at the time that the court is making its decision to act . . . .”); accord

Cornhusker Cas. Co. v. Skaj, --- F.3d ----, 2015 WL 2348628, at *20 (10th Cir.

2015). As the Supreme Court has instructed, a “defendant cannot as a rule remain

silent, interpose no objections, and after a verdict has been returned seize for the

first time on” an argument that conduct at trial was prejudicial or improper. 

United States v. [Billy] Young, 470 U.S. 1, 16 n.13 (1985) (quoting United States

v. Socony-Vacuum Oil Co., 310 U.S. 150, 238–39 (1940)) (internal quotation

marks omitted); see also Donley v. Christopher, 320 F.2d 24, 26 (10th Cir. 1963)

10
(“Having failed to object to the records at the time of their production and tender,

the contention [regarding their lack of authenticity] at this belated juncture comes

too late.”).

Here, the district court had no opportunity to avoid any ostensible errors

that Dr. Madsen identified in his post-trial briefing. It could only remedy any

such errors that actually did occur by, for example, declining to accept the jury’s

verdict or ordering a new trial. Indeed, we have previously concluded that the

errors alleged in this case—relating to an ostensible time bar under the statute of

limitations, duplicity in the indictment, and flaws in the jury instructions or

verdict form—are precisely the kinds of issues that must be raised during or even

before trial to give the trial court the opportunity to prevent the error. See, e.g.,

United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir. 1998) (“[A] challenge

to an indictment based on duplicity must be raised prior to trial. . . . Raising the

objection at the close of the government’s case is too late.” (omission in original)

(internal quotation marks omitted)); United States v. Freeman, 813 F.2d 303, 305

(10th Cir. 1987) (holding that the failure to object to an alleged error in the jury

instructions before the jury retired resulted in a lack of preservation); United

States v. Gallup, 812 F.2d 1271, 1280 (10th Cir. 1987) (concluding that the

defendant failed to preserve his statute of limitations defense when he failed to

raise it during trial or “request an instruction on the statute of limitations”).

11
The fact that Dr. Madsen raised his three appellate issues in post-trial

motions that are specifically authorized by the Federal Rules of Criminal

Procedure—that is, motions for acquittal (Rule 29), for a new trial (Rule 33), and

to arrest judgment (Rule 34)—does not alter our conclusion regarding the lack of

preservation. The focus of the preservation inquiry is on when the issue could

have been raised to avoid error, not on the procedural means by which the issue

ultimately is raised. Where a litigant has the ability to alert the trial court to

possible errors in time for the court to change course and rectify them and the

litigant fails to do so, irrespective of the procedural vehicle by which the litigant

ultimately presents the purported error, ordinarily we will conclude that the

alleged error has not been preserved.5

 See, e.g., United States v. Toro-Pelaez, 107

F.3d 819, 828 (10th Cir. 1997) (reviewing denial of the defendant’s motion for a

new trial on the grounds of alleged prosecutorial misconduct for plain error where

the defendant failed to contemporaneously object at trial); United States v. Hill,

60 F.3d 672, 675 (10th Cir. 1995) (noting that objecting to testimony in a motion

5 In contrast, where a litigant could not have raised an issue at

trial—for example, where there is newly discovered or suppressed evidence—the

litigant may still preserve the claim by bringing it to the court’s attention for the

first time in a post-trial motion. See, e.g., United States v. Battles, 745 F.3d 436,

446–47 (10th Cir.) (finding that a claim was not forfeited where the appellant

only discovered the information presented in her Rule 33 motion after the trial

had concluded), cert. denied, --- U.S. ----, 135 S. Ct. 355 (2014); United States v.

Torres, 569 F.3d 1277, 1283–84 (10th Cir. 2009) (reversing the district court’s

denial of a motion for a new trial where the government suppressed impeachment

evidence regarding its key witness). 

12
for acquittal or new trial “does not make up for the failure to object when the

evidence was proffered at trial”); see also Castrignano v. E.R. Squibb & Sons,

Inc., 900 F.2d 455, 461 (1st Cir. 1990) (“We will not order a new trial on the

basis of an alleged error that the district court may have been willing and able to

correct had he been aware of the basis for counsel’s objection.” (internal

quotation marks omitted)).6

 Thus, our cases dealing with issues that are raised for

the first time in post-trial motions specifically recognized by the Federal Rules of

Criminal Procedure reinforce the general principle that preservation of an issue

for appeal depends on whether the party claiming the error alerted the trial court

to the problem at a stage at which the court could have avoided the error. 

In sum, Dr. Madsen had the opportunity to challenge the timeliness of his

prosecution for the 1995 tax year, the alleged duplicity of the indictment, and the

lack of an appropriate jury instruction and verdict form well before the jury

retired to consider its verdict. Had he raised these issues prior to that critical

point—when the court could have, for example, stopped the allegedly time-barred

charge from going to the jury or issued an appropriate jury instruction or a special

verdict form—then the court could have conceivably prevented the occurrence of

the errors Dr. Madsen now claims justify reversal and a new trial. By failing to

6 A panel of our court has reached a similar conclusion in a persuasive

unpublished decision. See United States v. Zendejas, 509 F. App’x 735, 738

(10th Cir. 2013) (finding that a motion for a new trial based on prejudicial

comments by a prosecutor did not preserve error because the defendant should

have objected during the trial and requested a warning or curative instruction).

13
timely alert the district court to these issues, Dr. Madsen failed to preserve his

claims for appellate review. 

B

The government urges that Dr. Madsen waived all three of his claims by

failing to raise them until after trial. We agree.7

Waiver involves the “intentional relinquishment or abandonment of a

known right.” Olano, 507 U.S. at 733 (internal quotation marks omitted); accord

United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012); United States v.

Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007). “We typically find

waiver in cases where a party has invited the error that it now seeks to challenge,

or where a party attempts to reassert an argument that it previously raised and

7 We recognize that the decision of “what questions may be taken up

and resolved . . . is one left primarily to the discretion of the courts of appeals.” 

Singleton v. Wulff, 428 U.S. 106, 121 (1976). However, we see no strong reason,

much less a compelling one, for exercising our discretion here to ignore Dr.

Madsen’s waivers. Therefore, under the circumstances present here, we elect to

enforce the waiver rule, even though the district court did ultimately reach the

merits of each of Dr. Madsen’s claims. See United States v. Bryant, 5 F.3d 474,

476 (10th Cir. 1993) (stating, with respect to an objection enumerated in Federal

Rule of Criminal Procedure 12(b)(3), that “[t]he fact that the district court did not

reject Defendant’s argument as waived, but instead addressed whether Defendant

had adequately presented a selective prosecution claim, does not preclude us from

finding waiver due to untimeliness and failure to show cause”); see also United

States v. Bashroun, 225 F.3d 9, 14 (1st Cir. 2000) (“[W]e enforce Rule 12[(e)]

waivers even though the district court ultimately did address the waived issue on

the merits . . . .”); United States v. Ulloa, 882 F.2d 41, 43 (2d Cir. 1989) (“[A]

motion to suppress evidence must be made before trial and . . . failure to make

such a motion constitutes waiver, even where, as here, the trial judge considers

the issue during trial.” (citations omitted)). 

14
abandoned below.” United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th

Cir. 2008). Ordinarily, “a party that has waived a right is not entitled to appellate

relief.” Teague, 443 F.3d at 1314; see also United States v. Aptt, 354 F.3d 1269,

1281 (10th Cir. 2004) (“[T]here is no appeal from violation of a waived

right . . . .”). We proceed to demonstrate that each of Dr. Madsen’s three claims

is waived.

1

Dr. Madsen argues that his statute of limitations claim is not waived

because the statute of limitations is a “jurisdictional requirement requiring an

express waiver” and “can be raised at any time, even after the defendant has

pleaded guilty.” Aplt. Opening Br. at 21. He draws support for this proposition

from our decision in United States v. Waters, 328 F.2d 739 (10th Cir. 1964). 

While Waters did state that raising the statute of limitations for the first

time on appeal would not necessarily waive a claim because it was a

“jurisdictional limitation upon the power to prosecute and punish,” 328 F.3d at

743, we have since clarified that Waters was focused on whether the statute of

limitations “operates as a bar to prosecution,” United States v. Cooper, 956 F.2d

960, 962 (10th Cir. 1992). Indeed, we have said that “[t]he [Waters] court did not

equate the statute with the concept of subject matter jurisdiction, and we do not

believe such a parallel exists.” Id. 

15
Today, it is well-established that—for purposes of appellate review—the

statute of limitations is “an affirmative defense that can be waived if it is not

asserted at trial.” United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011);

see United States v. Brody, 705 F.3d 1277, 1284 (10th Cir. 2013) (“[A] claim that

a criminal charge is time-barred by a statute of limitations is an affirmative

defense: successfully raising this defense does not deprive a district court of

subject matter jurisdiction, and the claim can be waived.”); accord United States

v. Tolliver, 730 F.3d 1216, 1225 (10th Cir. 2013), cert. denied, --- U.S. ----, 134

S. Ct. 1912 (2014).8

We thus determine that Dr. Madsen waived his statute of limitations

defense by failing to raise it at trial. 

2

With respect to Dr. Madsen’s duplicity claim, the law is also fairly

unequivocal: a party who fails to raise objections to an indictment before trial

waives any such objection. See Fed. R. Crim. P. 12(b)(3)(B) (stating that motions

alleging a defect in the indictment must be brought before trial); id. R. 12(e)9

8 Because the statute of limitations is not jurisdictional, we also reject

Dr. Madsen’s argument that “the district court erred in denying [his] Rule 34

motion because the statute of limitations is jurisdictional.” Aplt. Opening Br. at

32 (capitalization altered). 

9 After Dr. Madsen’s trial—indeed, after this panel heard oral

argument—amendments to Rule 12 took effect as part of 2014 revisions of the

Federal Rules of Criminal Procedure. These amendments resulted in the

(continued...)

16
(stating that a party waives any Rule 12(b)(3) defense or objection not timely

raised); see also United States v. Schneider, 594 F.3d 1219, 1228 n.9 (10th Cir.

2010) (stating that an untimely challenge to the duplicity of an indictment was

waived); United States v. Henry, 504 F.2d 1335, 1338 (10th Cir. 1974) (“The

proper way to attack a duplicitous indictment is by a motion to elect. . . . [T]his is

a motion which must be made prior to trial or it is waived.” (citations omitted)). 

But cf. 3A Charles Alan Wright & Sarah N. Welling, Federal Practice and

Procedure § 689, at 236 (4th ed. 2010) (“[I]f the district court entertains the

belated motion [to suppress evidence] and decides it on the merits, it cannot be

argued on appeal that it has been waived.”). 

Dr. Madsen concedes that his challenge to the indictment was untimely, but

he seeks relief under the narrow exception in Rule 12(e) of the Federal Rules of

9

(...continued)

repositioning of certain sections of Rule 12 within the rule and also language

changes. See Fed. R. Crim. P. 12 advisory committee note (2014) (“The effect of

failure to raise issues by a pretrial motion has been relocated from (e) to (c)(3).”);

id. (“New paragraph (c)(3) governs the review of untimely claims, previously

addressed in Rule 12(e). . . . [T]he party seeking relief [must] show ‘good cause’

for failure to raise a claim by the deadline.”). However, because the district court

relied on the version of Rule 12 in effect before the 2014 amendment, and

because the parties do not refer to, and have not asked us to apply, the 2014

amended version, we apply Rule 12 as it existed at the time of Dr. Madsen’s trial

(i.e., 2012). See Cardenas v. Thaler, 651 F.3d 442, 444 (5th Cir. 2011) (applying

the version of the Federal Rules of Appellate Procedure in effect “[a]t the time

th[e] case was heard and decided in the district court” because “the parties and

the district court did not have the benefit of the . . . amendments” and “the parties

ha[d] not briefed whether the . . . amendments affect[ed]” the court’s analysis). 

17
Criminal Procedure for belated challenges to an indictment where a party shows

“good cause.” Fed. R. Crim. P. 12(e); see Trammell, 133 F.3d at 1354 (noting

that in limited circumstances, “a defendant can raise a late challenge to a

duplicitous indictment if cause is shown that might justify the granting of relief

from the waiver” (internal quotation marks omitted)). “We rarely, however, grant

relief under the good-cause exception,” United States v. Burke, 633 F.3d 984, 988

(10th Cir. 2011), and Dr. Madsen has not demonstrated that he is entitled to such

relief. 

Specifically, the only cause that Dr. Madsen advances to justify his late

challenge is his “lack of legal experience and pro se status.” Aplt. Opening Br. at

38.10 We have long held that although we construe the filings of pro se litigants

liberally—attempting to “discern the kernel of the issues” raised in otherwise

“illogically presented and intellectually unfocused” filings, de Silva v. Pitts, 481

F.3d 1279, 1283 n.4 (10th Cir. 2007)—this “generous construction . . . has limits,

and we must avoid becoming the plaintiff’s advocate,” Firstenberg v. City of

10 Dr. Madsen also argues in his reply brief that the district court’s

request for post-verdict briefing constituted an extension of the deadline for

pretrial motions pursuant to Federal Rule of Criminal Procedure 12(e). See Aplt.

Reply Br. at 5 (“This [exception] includes raising the defense by any extension

the court provides.” (internal quotation marks omitted)). Because this argument

was not advanced in Dr. Madsen’s opening brief, however, it is waived. See In re

Gold Res. Corp. Sec. Litig., 776 F.3d 1103, 1119 (10th Cir. 2015) (“[W]e

generally do not ‘review issues raised for the first time in a reply brief . . . .’”

(quoting Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1166 n.3 (10th Cir.

2003))).

18
Santa Fe, 696 F.3d 1018, 1024 (10th Cir. 2012). Indeed, it is axiomatic that “pro

se litigants must follow the same rules of procedure that govern other litigants.” 

Shrader v. Biddinger, 633 F.3d 1235, 1249 n.9 (10th Cir. 2011); accord Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Accordingly,

Dr. Madsen’s reliance on his pro se status to excuse the consequences of his

procedural delict here—that is, his untimely duplicity challenge to the

indictment—is unavailing. 

In sum, because Dr. Madsen’s duplicity challenge was untimely raised

under the federal rules, and he failed to demonstrate good cause for this delay, we

deem the challenge waived. 

3

Having determined that Dr. Madsen waived his challenge to the duplicity of

the indictment by raising the error after trial, we necessarily conclude that Dr.

Madsen’s challenge to the lack of a unanimity instruction or special verdict form

is also waived. A defendant’s failure to “timely challenge his indictment on

duplicity grounds . . . waive[s] any later challenge based on a failure to use a

special verdict form to avoid the alleged duplicity problem.” Trammell, 133 F.3d

at 1354; see United States v. Haber, 251 F.3d 881, 888–89 (10th Cir. 2001)

(holding, based on Trammell, that the failure to timely challenge the duplicity of

the indictment waived a later challenge to the lack of a jury instruction on

unanimity). But cf. Fed. R. Crim. P. 30(d) (“Failure to object in accordance with

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this rule [requiring objections to instructions] precludes appellate review, except

as permitted under Rule 52(b).”). 

III

Ultimately, Dr. Madsen has waived all three of his appellate arguments by

failing to timely raise them before the district court. This marks the end of the

road for his appeal. See Donner v. Nicklaus, 778 F.3d 857, 864 (10th Cir. 2015) 

(“In light of the waiver, we will not consider the defendants’ argument . . . .”).

Therefore, we AFFIRM the judgment of the district court. 

ENTERED FOR THE COURT

Jerome A. Holmes

Circuit Judge

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