United States v. Doreen Hendrickson , 822 F.3d 812 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0136n.06
Case No. 15-1446
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Mar 11, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
DOREEN M. HENDRICKSON, ) MICHIGAN
)
Defendant-Appellant. )
)
)
Before: SILER, COOK, and KETHLEDGE, Circuit Judges.
SILER, Circuit Judge. Following a guilty verdict and the imposition of eighteen months
of confinement and one year of supervised release, Doreen Hendrickson (“Hendrickson”)
appeals her conviction for criminal contempt under 18 U.S.C. § 401(3) and the terms of her
sentence. For the reasons stated below, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, the United States brought a civil suit against Hendrickson and her husband, Peter
Hendrickson, to collect tax refunds distributed in error as a result of false statements the
Hendricksons made in their 2002 and 2003 federal tax returns and to enjoin the Hendricksons
from filing further false materials with the Internal Revenue Service (“IRS”). In 2007, the
district court granted the Government’s summary judgment motion and entered an order that
“prohibited [the Hendricksons] from filing any tax return, amended return, form . . . or other
writing or paper with the IRS that is based on the false and frivolous claims set forth in Cracking
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the Code”—a book authored by Hendrickson’s husband—“that only federal, state or local
government workers are liable for the payment of federal income tax or subject to the
withholding of federal income, social security and Medicare taxes from their wages under the
internal revenue laws.” The court’s order also required the Hendricksons to file, within 30 days,
“amended U.S. Individual Income Tax Returns for the taxable years ending on December 31,
2002[,] and December 31, 2003,” including as gross income “the amounts that . . . Peter
Hendrickson received from his former employer, Personnel Management, Inc., during 2002 and
2003, as well [as] the amounts that . . . Doreen Hendrickson received from Una E. Dworkin
during 2002 and 2003.”
In 2009, Hendrickson filed a return for the 2008 tax year stating that she did not earn any
income, that five dollars had been withheld from her under a Form W-2, and that she was
therefore entitled to a five dollar refund. Records from Monarch Consulting indicated that the
company paid Hendrickson $59.20 during 2008, but she attached to her return a Form 4852
claiming that she received no wages, tips, or other compensation from the company.
In 2010, the Government moved the district court to hold the Hendricksons in contempt
for failing to file their amended 2002 and 2003 returns. After a hearing, the court held the
Hendricksons in contempt and imposed a $100 per day conditional fine on each of them until
they filed the amended returns. The Hendricksons subsequently filed returns for the tax years at
issue, but the forms included the words “UNDER DURESS” written over their signatures. The
court again ordered the Hendricksons to comply, clarifying that it now “ORDER[ED]
Defendants to file valid tax returns, in usable form, that in no way undermine the verity of the
returns, by January 7, 2011.”
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In January 2011, Hendrickson filed individual tax returns for 2002 and 2003. These
forms referenced an affidavit Hendrickson filed in the district court stating that she believed the
original returns to be “true, correct and complete,” that the amended returns “ha[d] no verity,”
and that she submitted the amended returns “under extreme protest.” She also stated that she
“disclaim[ed] these coerced amended returns because they [were] wholly false and fraudulent.”
The IRS rejected the amended returns because of the contents of Hendrickson’s affidavit and
because she changed her filing status from “married filing jointly” to “married filing separately”
after the returns’ due dates.
Hendrickson was then indicted on one count of felony criminal contempt in violation of
18 U.S.C. § 401(3). The indictment contained two specifications: that Hendrickson violated the
order in the civil case by (1) filing a 2008 tax return that “falsely reported that she earned zero
wages” that year and (2) failing to file amended returns for 2002 and 2003. The district court
granted Hendrickson’s motion to represent herself with the assistance of standby counsel. After
pretrial proceedings and a mistrial due to the jury’s failure to reach a unanimous verdict, a
second trial was held, and the jury found Hendrickson guilty of criminal contempt.
Hendrickson obtained counsel for the sentencing phase of the proceedings. At the
hearing, the district court sentenced her to eighteen months’ imprisonment and one year of
supervised release.
DISCUSSION
I. Constitutionality of the Underlying Order
Hendrickson argues that the court order she was found to have contemptuously disobeyed
violated her First Amendment rights, and her conviction should therefore be vacated.
Alternatively, she claims that because the lawfulness of the underlying order is an element of the
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crime of contempt, the district court erred by instructing the jury that the unlawfulness or
unconstitutionality of the order was not a defense to the contempt charge. Both of these
arguments fail.
A. Standard of Review
In most instances, whether a district court’s order granting injunctive relief violates a
litigant’s First Amendment rights presents a question of law that we review de novo. See
O’Toole v. O’Connor, 802 F.3d 783, 788 (6th Cir. 2015) (citing Platt v. Bd. of Comm’rs on
Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447, 453 (6th Cir. 2014)); Gas Nat.
Inc. v. Osborne, 624 F. App’x 944, 948 (6th Cir. 2015) (citing Planet Aid v. City of St. Johns,
782 F.3d 318, 323 (6th Cir. 2015)). If a party preserves an objection to a jury instruction by
raising it before the jury retires to deliberate, we review the instructions “to see ‘whether the
charge, taken as a whole, fairly and adequately submits the issues and applicable law to the
jury.’” Fencorp, Co. v. Ohio Ky. Oil Corp., 675 F.3d 933, 943 (6th Cir. 2012) (quoting Fisher v.
Ford Motor Co., 224 F.3d 570, 575–76 (6th Cir. 2000)); see also United States v. Dedman,
527 F.3d 577, 600 (6th Cir. 2008). The accuracy of jury instructions is a question of law, which
we review de novo, while “the refusal to give a specifically requested instruction is reviewed for
abuse of discretion.” Fencorp, 675 F.3d at 943 (quoting Micrel, Inc. v. TRW, Inc., 486 F.3d 866,
881 (6th Cir. 2007)).
B. Analysis
As a threshold matter, the collateral bar rule prevents Hendrickson from challenging the
constitutionality of the underlying order in the course of her criminal contempt proceeding.
When a district court has personal and subject matter jurisdiction over a case, an order issued by
the court “must be obeyed by the parties until it is reversed by orderly and proper proceedings.”
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United States v. United Mine Workers of Am., 330 U.S. 258, 293 (1947). Violating such an order
may be punishable by criminal contempt. Id. at 294 (citing Worden v. Searls, 121 U.S. 14
(1887)); see also Walker v. City of Birmingham, 388 U.S. 307, 314 (1967) (noting that, under
federal and state law, parties must obey injunctions issued by a court of competent jurisdiction,
“however erroneous the action of the court may be,” and “until [the issuing court’s] decision is
reversed for error by orderly review, . . . disobedience . . . is contempt of [the court’s] lawful
authority, to be punished” (quoting Howat v. Kansas, 258 U.S. 181, 189–90 (1922))).
Accordingly, we have found that a defendant in a criminal contempt proceeding may not contest
the validity of the underlying court order, except on the grounds that the issuing court lacked
jurisdiction or its order was “transparently invalid or had only a frivolous pretense to validity.”
Dever v. Kelly, 348 F. App’x 107, 112 (6th Cir. 2009) (quoting Walker, 388 U.S. at 315); see
also Polo Fashions, Inc. v. Stock Buyers Int’l, Inc., 760 F.2d 698, 700 (6th Cir. 1985). Other
courts have also recognized exceptions to the collateral bar rule when no “adequate and
effective” opportunity for appellate review exists or the underlying order “require[s] an
irretrievable surrender of constitutional guarantees”— though we have never explicitly adopted
or rejected these principles. United States v. Dickinson, 465 F.2d 496, 511 (5th Cir. 1972); see
also United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007).
This case, however, does not fall under any exception to the collateral bar rule.
Hendrickson does not claim on appeal that the district court lacked jurisdiction to enter the
underlying order. Also, she has not demonstrated that the order was transparently invalid or only
had a frivolous pretense to validity. While she claims that the order violated her First
Amendment rights, this merely “amounts to an argument that the . . . injunction was erroneously
issued which . . . would not have excused compliance.” Dever, 348 F. App’x at 112.
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Further, nothing indicates that Hendrickson did not have an adequate and effective
opportunity for review. After the district court entered the underlying order, Hendrickson
pursued an appeal to this court, and when she did not prevail, she filed an unsuccessful petition
for a writ of certiorari in the Supreme Court.
Finally, although Hendrickson maintains that the order implicates her First Amendment
rights, it does not present the type of scenario that might rise to the level of an irretrievable
surrender of a constitutional guarantee. The foundational case for this exception, Maness v.
Meyers, 419 U.S. 449, 458–61 (1975), described instances when a trial court orders a witness to
give testimony under circumstances that, in the witness’s estimation, violate her Fifth
Amendment right against self-incrimination. Because an appellate court would not be able to
“unring the bell” and completely cure the error, the Court held that the witness may refuse to
comply with the trial court’s order and seek appellate review. Id. at 460. The witness may
nevertheless be subject to “an adjudication of contempt if h[er] claims are rejected on appeal.”
Id. (quoting United States v. Ryan, 402 U.S. 530, 532–33 (1971)). Thus, regardless of whether
Hendrickson’s First Amendment arguments sufficiently resemble Maness’s Fifth Amendment
concerns, the fact that she appealed the order and continued to disobey it after her arguments
were unsuccessful is enough to distinguish the present case from Maness.
Hendrickson candidly “recognizes the authority relied on by the Government” relating to
the collateral bar rule, but she nonetheless asks us to “either revisit this issue or recognize an
exception to this authority in her case . . . given the nature of the constitutional violation in
question.” Of course, we lack authority to “revisit” an issue that has been decided by the
Supreme Court. See Agostini v. Felton, 521 U.S. 203, 237 (1997). Assuming arguendo that the
order violated Hendrickson’s First Amendment rights, the mere fact that an order
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“unquestionably raise[s] substantial constitutional issues”—even First Amendment issues—is
insufficient, standing alone, to justify departure from the collateral bar rule. See Walker, 388
U.S. at 315–18.1 Even if we had the authority to do so, nothing in the facts of this case warrants
crafting a new exception to the collateral bar rule out of whole cloth.
Under these circumstances, the collateral bar rule applies, and the constitutionality of the
underlying order is not at issue in this case. “There is no right of revolution in a United States
District Court.” United States v. Moncier, 571 F.3d 593, 599 (6th Cir. 2009). “Every precaution
should be taken that orders issue . . . only after legal grounds are shown and only when it appears
that obedience is within the power of the party being coerced by the order.” Maggio v. Zeitz,
333 U.S. 56, 69 (1948). When an order has become final, however, “disobedience cannot be
justified by re-trying the issues as to whether the order should have issued in the first place.” Id.
(citing United Mine Workers, 330 U.S. at 259; Oriel v. Russell, 278 U.S. 358 (1929)).
Likewise, the district court did not commit error by instructing the jury that “[i]t is not a
defense to the crime of Contempt that the Court Order that the Defendant is accused of violating
was unlawful or unconstitutional.” As discussed above, with certain exceptions not applicable
here, “the validity of the injunction is not an issue in a criminal contempt prosecution.” Polo
Fashions, 760 F.2d at 700 (citing Walker, 388 U.S. at 315–20; United Mine Workers, 330 U.S. at
293–94). In the context of this case, therefore, the district court’s instruction on this matter
“fairly and adequately submit[ted] the issues and applicable law to the jury.” Fencorp, 675 F.3d
at 943 (quoting Fisher, 224 F.3d at 575–76). Accordingly, Hendrickson’s contrary instruction
that would have submitted the issue of the underlying order’s lawfulness to the jury was not a
1
The court order at issue in Walker, which enjoined civil-rights protesters from “participating in or
encouraging mass street parades or mass processions without a permit” presented significantly more consequential
First Amendment issues than the underlying order in the present matter, and the Supreme Court nevertheless found
that the collateral bar rule applied. Walker, 388 U.S. at 309, 316, 320–21.
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“correct statement[] of the law”—a necessary condition for relief on appeal for a refusal to give
requested instructions. United States v. Callahan, 801 F.3d 606, 624 (6th Cir. 2015) (quoting
United States v. Hargrove, 416 F.3d 486, 489 (6th Cir. 2005)). This alone is enough to reject
Hendrickson’s arguments that the district court improperly instructed the jury and that it should
have given her instruction on lawfulness instead.
Nonetheless, Hendrickson maintains that the “lawfulness” of the underlying order is an
element of criminal contempt under 18 U.S.C. § 401(3), which provides that a court may “punish
by fine or imprisonment, or both, . . . [d]isobedience or resistance to its lawful . . . order.”
Hendrickson argues that, because the statute “only criminalizes contemptuous disobedience of
lawful orders,” the court’s instruction “relieved the [G]overnment of its burden of having to
prove an element set forth in the charging statute” and effectively directed a verdict on
lawfulness. While this argument has some intuitive appeal, it lacks merit. Simply put,
Hendrickson’s position is at odds with the prevailing interpretation of § 401(3) and the
longstanding collateral bar rule. This court has stated that the elements for criminal contempt
under § 401(3) are that the defendant (1) had notice of a reasonably specific court order,
(2) disobeyed it, and (3) acted with intent or willfulness in doing so. United States v. Bibbins,
3 F. App’x 251, 253 (6th Cir. 2001) (per curiam) (citing United States v. Allen, 73 F.3d 64, 67–
68 (6th Cir. 1995); United States v. Delahanty, 488 F.2d 396, 398 (6th Cir. 1973)). And, as
discussed above, “the validity of the injunction is not an issue in a criminal contempt
prosecution” under the collateral bar rule, except in limited circumstances not implicated in this
case. Polo Fashions, 760 F.2d at 700 (citing Walker, 388 U.S. at 315–20; United Mine Workers,
330 U.S. at 293–94); see also Dolman v. United States, 439 U.S. 1395, 1395–96 (Rehnquist,
Circuit Justice 1978) (“[A] conviction for criminal contempt may be valid quite apart from the
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validity of the underlying injunction which was violated, and that the invalidity of an injunction
may not ordinarily be raised as a defense in contempt proceedings for its violation.” (citing
Walker, 388 U.S. at 315–20; United Mine Workers, 330 U.S. at 293–94)); United Mine Workers,
330 U.S. at 294 (“Violations of an order are punishable as criminal contempt even though the
order is set aside on appeal . . . .”).2
Hendrickson also contends that the district court’s instruction on lawfulness “gutted” her
ability to present a good-faith defense and directed a verdict on willfulness. This argument lacks
merit because it misconstrues the good-faith defense and the willfulness requirement in the
context of a criminal contempt proceeding. For purposes of criminal contempt, “willfulness”
means “a deliberate or intended violation, as distinguished from an accidental, inadvertent or
negligent violation” of a court order. Vaughn v. City of Flint, 752 F.2d 1160, 1169 (6th Cir.
1985) (quoting TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1272 (6th Cir. 1983)). Thus, a
defendant may not establish a lack of willfulness by stating that she believed the underlying
order was not properly issued; “[p]ersons who make private determinations of the law and refuse
to obey an order generally risk criminal contempt . . . .” Maness v. Meyers, 419 U.S. at 458.
To hold otherwise would substantially undermine the collateral bar rule. Likewise, the good-
faith defense to criminal contempt applies only where the defendant has made “a good faith
2
United States v. Koblitz, 803 F.2d 1523, 1527 (11th Cir. 1986), which Hendrickson relies on, is
distinguishable because it deals with a civil contempt order rather than a criminal contempt conviction. When the
underlying order in a civil contempt proceeding is invalidated, the contempt adjudication falls along with it. See
United Mine Workers, 330 U.S. at 295. In re Smothers, 322 F.3d 438, 439–40 (6th Cir. 2003), and United States v.
Turner, 812 F.2d 1552, 1553 (11th Cir. 1987), are distinguishable because they concern instances where no
opportunity existed for appellate review of the predicate order before a criminal contempt sanction was imposed. A
line of precedent separate from United Mine Workers and Walker provides that the validity of the underlying order
may be reviewed on appeal of a contempt conviction if that appeal presented the first opportunity to make such a
challenge. See Marrese v. Am. Acad. of Orthopaedic Surgeons, 726 F.2d 1150, 1157–58 (7th Cir. 1984) (en banc)
(Posner, J.), rev’d on other grounds, 470 U.S. 373 (1985); see also Ryan, 402 U.S. at 532 n.4; Maness, 419 U.S. at
460. Smothers and Turner fall within this line, while the present case does not.
Additionally, the cases Hendrickson relies on that concern charges of resisting arrest and assault on a police
officer are fundamentally inapposite because the collateral bar rule applies to court orders, not the actions or
commands of police officers.
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effort to comply with [the] court order.” United States v. Simmons, 215 F.3d 737, 741 (7th Cir.
2000) (emphasis added); see also United States v. Maccado, 225 F.3d 766, 772 (D.C. Cir. 2000);
United States v. Remini, 967 F.2d 754, 757 (2d Cir. 1992); United States v. Baker, 641 F.2d
1311, 1317 (9th Cir. 1981).3 While “act[ing] under an honest, although incorrect,
misunderstanding of [a] court order” is a defense to criminal contempt, United States v. Quality
Formulation Labs., Inc., 512 F. App’x 237, 240 (3d Cir. 2013) (citing United States v. Gross,
961 F.2d 1097, 1103 (3d Cir. 1992)), the fact that a “person believes in good faith that the court
order is unlawful” is not, United States v. Underwood, 880 F.2d 612, 618–19 (1st Cir. 1989).
The district court’s instruction on lawfulness was not, therefore, erroneous.
II. Specific Unanimity Instruction
Hendrickson also claims that the district court erred by incorrectly instructing the jury
that specific unanimity—that is, a unanimous decision among jury members as to how she
violated the order—was not required in this case. A specific unanimity instruction was not
warranted in this case. Even if it were, however, any error the district court may have made was
harmless.
A. Standard of Review
Because Hendrickson requested the inclusion of a specific unanimity instruction and
objected to the instruction that specific unanimity was not required, we review the district court’s
refusal to give a specific unanimity instruction for abuse of discretion. United States v. Wilson,
579 F. App’x 338, 347 (6th Cir. 2014) (citing United States v. Reichert, 747 F.3d 445, 451 (6th
Cir. 2014)), cert. denied, 135 S. Ct. 421 (2014), and cert. denied sub nom. Williamson v. United
States, 135 S. Ct. 1470 (2015). But to the extent that Hendrickson claims that the given
3
To be clear, as the district court correctly instructed the jury, good faith is not a separate defense to
criminal contempt, but rather a specific avenue for negating willfulness. See Simmons, 215 F.3d at 741; Baker,
641 F.2d at 1317.
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instructions misstated the law, de novo review applies. Reichert, 747 F.3d at 451. If the district
court failed to a give a required specific unanimity instruction, we must still engage in
harmless-error review, as such a failure does not constitute structural error. United States v.
Tragas, 727 F.3d 610, 617 (6th Cir. 2013) (citing Murr v. United States, 200 F.3d 895, 906 (6th
Cir. 2000)).
B. Analysis
Specific unanimity instructions are a method of curing “duplicitous” charges, which
“set[] forth separate and distinct crimes in one count” and create a risk that a defendant’s right to
a unanimous verdict would be undermined “if individual jurors find [her] guilty of different
crimes.” United States v. Eaton, 784 F.3d 298, 308 (6th Cir. 2015) (quoting United States v.
Kakos, 483 F.3d 441, 443 (6th Cir. 2007)). Nonetheless, “a charge that permits more than one
factual basis for conviction ‘does not automatically require a unanimity instruction.’” Id.
(quoting United States v. Algee, 599 F.3d 506, 514 (6th Cir. 2010)).
While a federal jury cannot convict in a criminal case unless it unanimously concludes
that the Government has proven each element of the charged offense, the “jury need not always
decide unanimously which of several possible sets of underlying brute facts make up a particular
element.” Richardson v. United States, 526 U.S. 813, 817 (1999) (citing Schad v. Arizona,
501 U.S. 624, 631–32 (1991) (plurality opinion)). Thus, the “pivotal distinction” is that the jury
must unanimously decide that all facts that constitute “elements” of a crime occurred, but it does
not necessarily need to be unanimous when considering the “brute facts” or “means” that make
out an element. Eaton, 784 F.3d at 308 (citing Richardson, 526 U.S. at 817–19; United States v.
DeJohn, 368 F.3d 533, 540–41 (6th Cir. 2004)). The existence of “multiple factual bases” in a
charge warrants a special unanimity instruction where
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(1) the nature of the evidence is exceptionally complex or the alternative
specifications are contradictory or only marginally related to each other; or
(2) there is a variance between indictment and proof at trial; or (3) there is
tangible indication of jury confusion, as when the jury has asked questions or the
court has given regular or supplementary instructions that create a significant risk
of nonunanimity.
United States v. Miller, 734 F.3d 530, 538–39 (6th Cir. 2013) (quoting United States v. Damra,
621 F.3d 474, 504–05 (6th Cir. 2010)).
Hendrickson contends that the jury should have been instructed that, to convict, they
were required to unanimously decide that she filed a false tax return for 2008 based on the
theories in Cracking the Code, that she failed to file her 2002 and 2003 tax returns, or both. She
limits her arguments to a claim that the alternative specifications in the indictment were, at most,
merely “marginally related.” To support this proposition, Hendrickson reasons that the
underlying order contained two separate and distinct injunctions—a prohibition against filing
further returns based on Cracking the Code and a requirement to affirmatively file returns for
2002 and 2003—and that the events described in the indictment relating to these two injunctions
are “different in kind” and “temporal[ly] dispar[ate].” The Government counters that the order
included “a single injunction that contained two directives: (1) file amended tax returns
for . . . 2002 and 2003; and (2) refrain from filing tax returns that contained false information
similar to that in the original 2002 and 2003 returns,” and “the indictment charged [Hendrickson]
with violating the single injunction in two ways.” According to this argument, these two
directives had the single aim of compelling compliance with the tax code, and the methods that
the indictment charged Hendrickson with violating the order were related.
On one hand, the essence of Hendrickson’s argument—that the conduct she was charged
with represents two factually and temporally distinct events—carries some force. Juries’ ability
to disagree about means is limited where such disagreement “risks serious unfairness and lacks
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support in history or tradition.” Richardson, 526 U.S. at 820 (citing Schad, 501 U.S. at 632–33
(plurality opinion); Schad, 501 U.S. at 651 (Scalia, J., concurring)). For example, it would be
impermissible for “an indictment [to] charg[e] that the defendant assaulted either X on Tuesday
or Y on Wednesday.” Schad, 501 U.S. at 651 (Scalia, J., concurring); see also Richardson,
526 U.S. at 820 (citing Justice Scalia’s Schad concurrence for this proposition). Viewed in the
way Hendrickson proposes, this case may resemble Justice Scalia’s hypothetical. The
countervailing position is, however, much stronger because no risk of serious unfairness exists in
this case. The indictment contained a single charge that Hendrickson contemptuously disobeyed
a court order. Regardless of whether the underlying order is best conceptualized as two
injunctions or one injunction containing two directives, the order was handed down in its entirety
all at once. Hendrickson’s actions in contravention of the order also had a single unifying theme.
Her filings were predicated on the faulty legal theories the order contemplated. Thus, more than
a marginal relation exists between the alternative specifications, and they are related enough to
avoid a risk of serious unfairness, especially in light of the limited factual complexity of the
case.4
Moreover, Hendrickson is not entitled to relief because any error the district court
committed in charging the jury was harmless. Assuming without deciding that the most stringent
standard for harmless-error review applies,5 Hendrickson is not entitled to relief if “it appears
4
Hendrickson’s discussion of Miller, 734 F.3d 530, and United States v. Schmeltz, 667 F.3d 685, 686 (6th
Cir. 2011), is unavailing. In both Miller and Schmeltz, we found that a specific unanimity instruction was not
required. See Miller, 734 F.3d at 539; Schmeltz, 667 F.3d at 688. Although Hendrickson attempts to work
backwards from these holdings, her reasoning does not establish that the alternative specifications in her own
indictment were, in fact, only marginally related.
5
In the context of an error of constitutional magnitude, harmless-error review requires “pro[of] beyond a
reasonable doubt that the error did not affect the verdict.” United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir.
2015) (citing United States v. Miner, 774 F.3d 336, 342, 350 (6th Cir. 2014)), cert. denied sub nom. Ferguson v.
United States, 136 S. Ct. 700 (2015). If non-constitutional errors are involved, all that is required is “a
preponderance of the evidence that the error did not materially affect the verdict.” Id. (citing Kotteakos v. United
States, 328 U.S. 750, 764–65 (1946)). It is unclear whether the failure to give a necessary specific unanimity
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‘beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’” Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman v. California,
386 U.S. 18, 24 (1967)); see also United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015),
cert. denied sub nom. Ferguson v. United States, 136 S. Ct. 700 (2015). Hendrickson did not
argue that she, in fact, filed adequate returns for 2002 and 2003 or that she did not file the 2008
return containing false information. Instead, she relied primarily on a good faith defense
predicated on her belief that the underlying order violated her First Amendment rights.
However, this defense was inadequate as a matter of law, so no reasonable juror could have
voted to acquit her on this basis. Indeed, the Government argued in its brief that any error in the
jury instructions was harmless because Hendrickson “did not even contest the underlying acts
that formed the basis for the contempt charge,” and Hendrickson did not dispute this assertion in
her reply brief. Moreover, as the district court noted in ruling on Hendrickson’s post-trial
motions, the great weight of evidence presented at trial supported a guilty verdict under either
specification. Therefore, regardless of whether the district court erred in its instructions, the
harmless-error doctrine applies, and Hendrickson is not entitled to relief.6
III. Sixth Amendment Self-Representation
Hendrickson also challenges her conviction on Sixth Amendment grounds, claiming that
her right of self-representation was violated when, during her testimony, her standby counsel
failed to ask her certain questions that she instructed him to ask.
instruction is an error of constitutional magnitude, but the Supreme Court has indicated that the issue at least
implicates constitutional concerns. See Richardson, 526 U.S. at 819. Resolving this issue is unnecessary because
any error was harmless even under the more demanding standard.
6
To counter the application of the harmless-error doctrine, Hendrickson contends that the evidence at the
second trial “was far from overwhelming” because her first trial resulted in a hung jury, but this argument misses the
point. The proper inquiry is whether “the error complained of . . . contribute[d] to the verdict obtained.” Neder,
527 U.S. at 15 (emphasis added). The district court’s unanimity instructions at both trials were substantially similar.
Moreover, the record indicates that the mistrial resulted from a single juror’s refusal to convict without having seen
evidence relating to extraneous issues. Under these particular circumstances, a previous hung jury in the same
matter does not tend to show that the district court’s unanimity instruction had any effect on the verdict.
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Case No. 15-1446
United States v. Doreen M. Hendrickson
A. Standard of Review
Because Hendrickson did not object to her standby counsel’s failure to ask her requested
questions until after trial,7 we review her Sixth Amendment claim for plain error. United States
v. Thomas, 74 F.3d 701, 712 (6th Cir. 1996); see also United States v. Marcus, 560 U.S. 258, 262
(2010) (finding that issues “not raised at trial” are reviewed for plain error); United States v.
Viscome, 144 F.3d 1365, 1370 (11th Cir. 1998) (reviewing a constitutional argument raised for
the first time prior to sentencing for plain error). Under this standard, we ordinarily may only
reverse if the appellant “demonstrates that (1) there is an ‘error’; (2) the error is ‘clear or
obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant’s
substantial rights, which in the ordinary case means’ it ‘affected the outcome of the district court
proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Marcus, 560 U.S. at 262 (quoting Puckett v. United States, 556 U.S. 129,
135 (2009)). However, a violation of the right to represent oneself is a “structural” error, and
such an error “may be cognizable despite the lack of a third-prong showing that it actually
prejudiced the appellant or affected the outcome of the proceedings.” United States v. Lawrence,
735 F.3d 385, 401 (6th Cir. 2013) (citing Marcus, 560 U.S. at 263; United States v. Barnett,
398 F.3d 516, 526 (6th Cir. 2005)), cert. denied, 135 S. Ct. 753 (2014). Structural claims are
also not subject to harmless-error analysis. Id.; see also McKaskle v. Wiggins, 465 U.S. 168, 177
n.8 (1984).
7
In a motion for release pending appeal, Hendrickson claimed that, after standby counsel failed to ask the
requested questions, she “quietly turned to the Court and asked to speak with standby counsel, but the Court refused
this request.” The district court found that Hendrickson did not make this request. The court also found that she had
an opportunity to raise the issue at a sidebar immediately following the conclusion of her testimony, but she did not.
Hendrickson admits that her alleged statement to the court does not appear in the record. But even assuming that it
did take place, Hendrickson’s request was insufficient to avoid plain error review in light of the fact that she had a
clear opportunity to raise the issue at the sidebar but did not. “To avoid plain-error review, ‘[a] party must object
with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for
h[er] objection.’” United States v. Corp, 668 F.3d 379, 387–88 (6th Cir. 2012) (quoting United States v. Bostic,
371 F.3d 865, 871 (6th Cir. 2004)). Hendrickson did not satisfy this standard.
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Case No. 15-1446
United States v. Doreen M. Hendrickson
B. Analysis
The Sixth Amendment provides that
[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed
of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and
to have the Assistance of Counsel for his defence.
U.S. Const. amend. VI. In Faretta v. California, 422 U.S. 806, 819–20 (1975), the Supreme
Court found that the structure of the Sixth Amendment “necessarily implie[s]” that criminal
defendants enjoy “the right to self-representation.” Under certain circumstances, the
participation of standby counsel raises Sixth Amendment concerns; “the objectives underlying
the right to proceed pro se may be undermined by unsolicited and excessively intrusive
participation by standby counsel.” McKaskle, 465 U.S. at 177. Pro se defendants are “entitled to
preserve actual control over the case [they] choose[] to present to the jury”; therefore, “[i]f
standby counsel’s participation over the defendant’s objection effectively allows counsel to make
or substantially interfere with any significant tactical decisions, or to control the questioning of
witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is
eroded.” Id. at 178.8 Nonetheless, “[a] defendant’s invitation to counsel to participate in the trial
obliterates any claim that the participation in question deprived the defendant of control over his
own defense.” Id. at 182. Accordingly, “a pro se defendant’s solicitation of or acquiescence in
certain types of participation by counsel substantially undermines later protestations that counsel
interfered unacceptably.” Id. Ultimately, in considering whether the right to self-representation
was violated, the court’s “primary focus [is] on whether the defendant had a fair chance to
present h[er] case in h[er] own way.” Id. at 177.
8
McKaskle indicates that a defendant’s Faretta rights may also be violated when “participation by standby
counsel without the defendant’s consent . . . destroy[s] the jury’s perception that the defendant is representing
h[er]self.” McKaskle, 465 U.S. at 178. Hendrickson does not claim that this principle applies in the present matter.
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Case No. 15-1446
United States v. Doreen M. Hendrickson
Hendrickson requested the district court to allow her to proceed with the assistance of
standby counsel. At trial, she decided to testify in her own defense, and standby counsel
informed the district court that he planned to question Hendrickson during her direct
examination. Hendrickson did not object or otherwise correct him. Nor did she raise an
objection to contest this procedure at the time she took the stand. Hendrickson provided standby
counsel with scripted questions for her examination, but he did not ask her a series of questions
relating to her beliefs regarding the legal validity of the order that was the subject of her
contempt charge, including questions related to her understanding of and reliance on First
Amendment precedent. Standby counsel explained that the Government had repeatedly objected
to similar lines of inquiry and that he did not ask the questions because Hendrickson had already
“struggle[d] to provide answers to some of the questions she had provided.” “[I]n response
to . . . Hendrickson expressing concern that the questions were not asked,” counsel “suggested
that she attempt to incorporate some of the points regarding her reliance on authorities
interpreting the First Amendment into her closing argument.” Nothing in the record indicates
that Hendrickson raised her concerns to the district court during trial or that she attempted to
retake the stand to pursue this line of questioning.
Hendrickson claims that this series of events violated her right to self-representation such
that she is entitled to a new trial. She suggests that, because the right to self-representation is
structural, any transgression that conceivably implicates her Faretta rights—no matter how
slight—constitutes reversible error. But it is not the case that “every deprivation in a category
considered to be ‘structural’ constitutes a violation of the Constitution or requires reversal of the
conviction, no matter how brief the deprivation or how trivial the proceedings that occurred
during the period of deprivation.” Ramos v. Racette, 726 F.3d 284, 289 (2d Cir. 2013) (quoting
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Case No. 15-1446
United States v. Doreen M. Hendrickson
Gibbons v. Savage, 555 F.3d 112, 120 (2d Cir. 2009)), cert. denied sub nom. Ramos v. Chappius,
134 S. Ct. 649 (2013); see also United States v. Arellano-Garcia, 503 F. App’x 300, 305 (6th
Cir. 2012). As discussed above, the relevant inquiry is whether Hendrickson had a fair chance to
present her case in a manner of her own choosing.
Hendrickson’s Sixth Amendment claim is fatally undercut by the fact that she acquiesced
to standby counsel’s participation. Hendrickson’s failure to object to the participation of standby
counsel is a “crucial respect” in which her case differs from McKaskle—a difference that
“substantially undermines” her claim. United States v. French, 748 F.3d 922, 931–33 (9th Cir.)
(quoting McKaskle, 465 U.S. at 182–83), cert. denied, 135 S. Ct. 384 (2014). “Once a pro
se defendant invites or agrees to any substantial participation by counsel, subsequent
appearances by counsel must be presumed to be with the defendant’s acquiescence,” until the
defendant “expressly and unambiguously” objects to standby counsel’s actions. McKaskle, 465
U.S. at 183. Here, Hendrickson explicitly requested the assistance of standby counsel, so this
presumption applies.
Hendrickson maintains that she did not acquiesce in standby counsel’s actions, claiming
that, for Sixth Amendment self-representation purposes, a defendant only acquiesces to the
actions of standby counsel “when she consistently and deliberately relinquishes control over her
trial.” This proposed standard lacks a basis in McKaskle, which recognized that “acquiescence in
certain types of participation” would “substantially undermine[] later protestations that counsel
interfered unacceptably.” Id. at 182. Indeed, the defendant in McKaskle, unlike Hendrickson,
raised numerous objections to the participation of standby counsel. See id. at 182–83.
While Hendrickson emphasizes that she “confronted standby counsel in considerable
dismay and denunciation of his actions at the first chance to do so,” this is not enough to
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Case No. 15-1446
United States v. Doreen M. Hendrickson
demonstrate that she did not acquiesce. Counsel apparently suggested that she attempt to discuss
the unasked questions’ subject matter during her closing argument, and she did not attempt to
retake the stand. Hendrickson argues that standby counsel’s failure to ask the requested
questions prevented her from addressing certain First Amendment precedent during her closing,
but this is immaterial. She did not expressly and unambiguously raise an objection to the district
court, and she chose not to seek to develop the testimony at issue on counsel’s advice that she
address the topic at closing. Such a “deliberate tactical decision” will not give rise to a Faretta
claim, regardless of whether it is successful. French, 748 F.3d at 932.
Simply stated, Hendrickson was not denied a fair chance to present her own case in a
manner of her choosing. Counsel’s failure to ask certain questions of Hendrickson was not so
invidious that it deprived her of the opportunity to develop testimony related to what she
perceived as an important issue in the case. She allowed standby counsel to question her. She
could have, but never did, object to counsel’s conduct during trial. She could have, but never
did, raise the issue at sidebar. She could have, but never did, seek to retake the stand after
consulting with counsel. At bottom, she takes umbrage with the way standby counsel executed
his responsibilities. But “[a] defendant does not have a constitutional right to choreograph
special appearances by counsel.” McKaskle, 465 U.S. at 183. Hendrickson’s claim, therefore,
fails.
If this result seems anomalous, it may be because Hendrickson couches in
self-representation terms what is essentially a claim sounding in ineffective assistance of
counsel. This strategy is certainly not unheard of. See Washington v. Renico, 455 F.3d 722,
733–34 (6th Cir. 2006). And it is certainly understandable, as a successful Faretta claim would
allow her to avoid the required demonstration of prejudice under Strickland v. Washington,
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Case No. 15-1446
United States v. Doreen M. Hendrickson
466 U.S. 668 (1984). The flip side of this tactic, however, is that she must show that standby
counsel’s actions prevented her from having a fair chance to present her case in a manner of her
choosing. She has not done so.9 Therefore, she is not entitled to relief on this ground.
IV. Sentencing
Apart from her arguments that her conviction should be vacated, Hendrickson also
challenges her sentence as procedurally unreasonable.
A. Standard of Review
We review the district court’s sentencing determination for reasonableness under the
deferential abuse-of-discretion standard. United States v. Baker, 559 F.3d 443, 448 (6th Cir.
2009) (citing Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Stephens, 549 F.3d
459, 464 (6th Cir. 2008)). While this inquiry has both a procedural and a substantive component,
id., Hendrickson has only claimed procedural unreasonableness. “A sentence is procedurally
unreasonable if the district court fails to calculate (or improperly calculates) the Guidelines
range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a
sentence based on clearly erroneous facts, or fails to adequately explain the chosen sentence.”
Id. (citing Gall, 552 U.S. at 51); see also United States v. Hall, 632 F.3d 331, 335 (6th Cir.
2011).
B. Analysis
Under USSG § 2J1.1, no specific sentencing guideline applies to criminal contempt
convictions. Instead, the Guidelines refer the sentencing court to § 2X5.1, which directs the
court to “apply the most analogous offense guideline.” In the event that “there is not a
sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553 shall control.” USSG
9
Because Hendrickson did not bring an ineffective assistance claim and the parties have not briefed the
issue, we do not consider whether standby counsel’s performance was deficient or whether Hendrickson was
prejudiced by his conduct.
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Case No. 15-1446
United States v. Doreen M. Hendrickson
§ 2X5.1. The district court relied on § 2T1.1, which covers, among other things, willful failure
to file a tax return. Under this provision, the applicable base offense level is keyed to the amount
of “tax loss” attributable to the defendant. See USSG § 2T1.1(a). In calculating the relevant tax
loss, the court applied § 2T1.1(c)(4), which provides that, “[i]f the offense involved improperly
claiming a refund to which the claimant was not entitled, the tax loss is the amount of the
claimed refund to which the claimant was not entitled.” The court noted that the civil order
found that the Hendricksons claimed erroneous refunds for the 2002 and 2003 tax years in a total
amount of $20,380.96, an amount of loss that carried a Base Offense Level of 12. See USSG
§ 2T4.1(D). Ultimately, the sentencing court determined that Hendrickson had an Adjusted
Offense Level of 12 and that she fell into Criminal History Category II, resulting in an advisory
range of 12 to 18 months of imprisonment, and sentenced her to 18 months of confinement. On
appeal, Hendrickson argues that the court improperly applied § 2T1.1(c)(4) instead of
§ 2T1.1(c)(2) to calculate the applicable tax loss and that, under § 2T1.1(c)(2), the amount of tax
loss attributable to Hendrickson would have resulted in an Offense Level of 6 or 8, with an
advisory range of 0 to 6 or 1 to 7 months’ imprisonment, respectively.10
At the outset, the district court did not abuse its discretion in applying § 2T1.1(c)(4) to
calculate the tax loss attributable to Hendrickson. She argues that the court “characteriz[ed the
matter] . . . as a failure to file tax returns case,” but relied on § 2T1.1(c)(4), “which applies in
cases where ‘the offense involved improperly claiming a refund to which the claimant was not
entitled.’” Hendrickson maintains that the offense she was charged with did not concern the
10
In her brief, Hendrickson hints at an argument that the sentencing court should not have looked to
§ 2T1.1 at all, instead relying only on the sentencing factors contained in 18 U.S.C. § 3553. Because she only
“advert[s] to [this argument] in a perfunctory manner” without an “effort at developed argumentation,” she has
waived this issue on appeal. United States v. Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (quoting McPherson v.
Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)). A party may not raise an issue on appeal by “mention[ing it] . . . in
the most skeletal way, leaving the court to . . . put flesh on its bones.” Id. (third alteration in original) (quoting
McPherson, 125 F.3d at 995–96).
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Case No. 15-1446
United States v. Doreen M. Hendrickson
2002 and 2003 refunds and that the factual basis of her conviction was “wholly unrelated to the
existence of the fact that she and her husband may be indebted to the [G]overnment because of
an allegedly improperly received refund.”
The commentary to § 2T1.1 provides that “[i]n determining the tax loss attributable to the
offense, the court should use as many methods set forth in subsection (c) and this commentary as
are necessary given the circumstances of the particular case.” USSG § 2T1.1 cmt. app. n.1; see
also United States v. Hoskins, 654 F.3d 1086, 1095 n.10 (10th Cir. 2011); United States v.
Kellar, 394 F. App’x 158, 169 (5th Cir. 2010). “In determining the total tax loss attributable to
the offense . . . , all conduct violating the tax laws should be considered as part of the same
course of conduct or common scheme or plan unless the evidence demonstrates that the conduct
is clearly unrelated.” USSG § 2T1.1 cmt. app. n.2. Accordingly, “[f]or sentencing purposes, the
use of tax loss resulting from uncharged conduct is authorized.” United States v. Pierce, 17 F.3d
146, 150 (6th Cir. 1994).11
With these principles in mind, Hendrickson’s arguments lack merit because her actions
surrounding the 2002 and 2003 refunds are related to her offense conduct. She was charged, in
part, with failing to file returns for 2002 and 2003 properly reporting her and her husband’s
income in contempt of a court order. Prior to the order, the Hendricksons had received improper
refunds for those years based on an assertion that their wages did not constitute taxable income,
11
We have also held that civil tax liability is not attributable to a defendant under § 2T1.1. Pierce, 17 F.3d
at 150 (citing United States v. Daniel, 956 F.2d 540, 544 (6th Cir. 1992)). Only criminal tax liability that is part of
the same course of conduct may be counted. Id. As stated above, however, the conduct need not actually be
charged for the corresponding loss to be attributable. Id. Loss resulting from conduct that is criminal in nature falls
within § 2T1.1(c). See United States v. Kennedy, 595 F. App’x 584, 589–90 (6th Cir. 2015); United States v.
Edkins, 421 F. App’x 511, 516 (6th Cir. 2010). And Hendrickson’s conduct that led to her receipt of erroneous
refunds was criminal for purposes of § 2T1.1(c) liability, though she was not indicted for it. See United States v.
Bove, 155 F.3d 44, 48 (2d Cir. 1998) (“It is beyond cavil that [the defendant’s] failure to declare certain W-2 income
in his . . . tax return amounts to criminal conduct under the tax code.”); see also United States v. Hendrickson, 460 F.
App’x 516, 517–20 (6th Cir. 2012) (per curiam) (affirming conviction of Peter Hendrickson for, among other things,
filing false tax documents for the 2002 and 2003 tax years).
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Case No. 15-1446
United States v. Doreen M. Hendrickson
and the order sought to remedy this. Accordingly, the refunds were not “clearly unrelated” to her
failure to file the 2002 and 2003 returns, especially in light of the Guidelines’ indication that a
“continuing pattern of violations of the tax laws,” the “use[ of] a consistent method to
evade . . . income,” a set of “violations [that] involve the same or a related series of
transactions,” and a set of “violation[s that] in each instance involves a failure to report . . . a
specific source of income” each indicate that a defendant’s conduct “is part of the same course of
conduct or common scheme or plan.” USSG § 2T1.1 cmt. app. n.2. Hendrickson’s conduct fits
within each of these categories; thus, the district court did not abuse its discretion in applying
§ 2T1.1(c)(4) to calculate the loss related to the returns.
Hendrickson’s remaining arguments on this point fare no better. In her reply brief, she
claims that the amount of the refund contained in the order was “illegitimate” because the IRS
never assessed a tax liability in this amount against her or her husband and because the
“$20,380.96 figure was offered at trial in the form of an informal ‘examination report’ as
‘evidence’ of the tax liabilities purportedly due.” At the outset, Hendrickson waived these
arguments by failing to raise them in her opening brief. See Sanborn v. Parker, 629 F.3d 554,
579 (6th Cir. 2010) (“We have consistently held, . . . that arguments made to us for the first time
in a reply brief are waived.” (citing Am. Trim, L.L.C. v. Oracle Corp., 383 F.3d 462, 477 (6th
Cir. 2004))). Nevertheless, they lack merit. An assessment is not a prerequisite for criminal
liability, United States v. Daniel, 956 F.2d 540, 542 (6th Cir. 1992), and the Guidelines permitted
the district judge to “make a reasonable estimate [of the tax loss attributable to Hendrickson]
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Case No. 15-1446
United States v. Doreen M. Hendrickson
based on the available facts,” USSG § 2T1.1 cmt. app. n.1. The fact that the examination report
“did not constitute a formal audit or examination” did not make reliance on it unreasonable.12
Accordingly, the district court did not abuse its discretion in applying § 2T1.1(c)(4) to
calculate the tax loss attributable to Hendrickson. Her sentence was therefore procedurally
reasonable, and we need not address her alternative proposed calculations under § 2T1.1(c)(2).
AFFIRMED.
12
Moreover, the fact that Hendrickson’s husband was involved in the filing of their joint 2002 and 2003
returns does not change the amount of loss attributable to Hendrickson. See United States v. Bishop, 291 F.3d 1100,
1115 (9th Cir. 2002) (finding that where spouses are “co-actors,” “the total tax loss . . . is attributable to each
defendant”).
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