from the United States District Court for the District of
Colorado (D.C. No. 1:15-CR-00394-WJM-2)
S. Jackson, Oklahoma City, Oklahoma, for Defendant-Appellant.
D. Rhyne, Assistant United States Attorney (Jason R. Dunn,
United States Attorney, with her on the brief), Denver,
Colorado, for Plaintiff-Appellee.
BACHARACH, BALDOCK, and EBEL, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
Wendy Yurek and her husband, Mr. Daryl Yurek, were charged
with tax evasion and bankruptcy fraud. After a joint
jury trial, Mrs. Yurek and her husband were convicted on both
offenses. The district court then sentenced Mrs. Yurek to a
prison term of 27 months, leading her to appeal the
conviction and sentence.
affirm in part and reverse in part. We affirm Mrs.
Yurek's conviction, but we vacate the sentence because
the district court applied the wrong test when deciding
whether to grant a mitigating-role adjustment.
We reject Mrs. Yurek's challenges to the sufficiency of
the evidence on her conviction for tax evasion and bankruptcy
conclude that the evidence of Mrs. Yurek's guilt was
sufficient to support her conviction for tax evasion and
We engage in de novo review over the sufficiency of the
considering the sufficiency of the evidence, we engage in de
novo review. United States v. Ramos-Arenas, 596 F.3d
783, 786 (10th Cir. 2010). We will reverse only if no
rational factfinder could have found that the government had
proven all of the elements of an offense beyond a reasonable
doubt. United States v. Brown, 400 F.3d 1242, 1247
(10th Cir. 2005).
de novo review, we view the trial evidence in the light most
favorable to the government. United States v.
Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016). We do
not reevaluate witness credibility or reweigh the evidence.
United States v. Smith, 133 F.3d 737, 742 (10th Cir.
The evidence was sufficient to convict on tax
Yurek was convicted of tax evasion, which consists of
"willfully attempt[ing] in any manner to evade or defeat
any tax imposed by [the Internal Revenue Code] or the payment
thereof." 26 U.S.C. § 7201. To obtain a conviction
on this offense, the government had to prove three elements:
1. Mrs. Yurek owed a substantial tax to the IRS.
2. Mrs. Yurek committed "an affirmative act constituting
an evasion or attempted evasion" of assessment or
payment of the tax.
3. Mrs. Yurek willfully evaded or attempted to evade the
assessment or payment of the tax. United States v.
Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016) (citing
Sansone v. United States, 380 U.S. 343, 351 (1965));
see United States v. Thompson, 518 F.3d 832, 850
(10th Cir. 2008) (noting that the tax liability must be
Yurek challenges the sufficiency of the evidence on the
second and third elements (an affirmative act and
The evidence was sufficient to find an affirmative
establish an affirmative act, the government had to prove an
act designed to "mislead or conceal" within the
six-year period of limitations. United States v.
Thompson, 518 F.3d 832, 852 (10th Cir. 2008); see
United States v. Anderson, 319 F.3d 1218, 1219 (10th
Cir. 2003) (holding that when a defendant commits a series of
affirmative acts over multiple years, the six-year period of
limitations for tax evasion begins with the last affirmative
act). The government bore the burden to prove that Mrs. Yurek
had committed at least one affirmative act. United States
v. Hoskins, 654 F.3d 1086, 1091 (10th Cir. 2011). The
jury could have reasonably found that the government had
satisfied this burden.
"Affirmative acts" are broadly defined.
first consider what constitutes an affirmative act. Federal
law suggests an expansive definition, stating that tax
evasion can be committed by evading taxes "in any
manner." 26 U.S.C. § 7201; see Boisseau,
841 F.3d at 1125 ("[T]he type of affirmative conduct
that can constitute an affirmative act of evasion is
broad."). Affirmative acts thus include
• concealing assets,
• covering up sources of income, and
• engaging in misleading or concealing conduct.
Boisseau, 841 F.3d at 1125. Affirmative acts may
even consist of otherwise lawful conduct if the acts are
committed with an intent to evade taxes. Id.;
United States v. Gorrell, No. 18-5041, 2019 WL
1890971 at *5 (10th Cir. Apr. 29, 2019).
The evidence sufficed for a finding that Mrs. Yurek had
committed an affirmative act.
in the light most favorable to the government, the trial
evidence allowed a reasonable jury to find affirmative acts
involving (1) payment of personal expenses from business
accounts and (2) submission of false tax documents to the
The jury could have reasonably found
that Mrs. Yurek had committed affirmative
acts by paying her and her husband's personal expenses
out of business accounts.
Yurek had authority to write checks on behalf of Bolder
Venture Partners and Veracity Credit Consultants, LLC, and
she used that authority to write business checks for her and
her husband's personal expenses. A fact-finder could have
reasonably viewed the writing of these checks as affirmative
acts to evade taxes.
these checks came from Bolder Venture Partners, where Mrs.
Yurek was a partner. For example, Mrs. Yurek signed a $2,
309.68 check from Bolder to pay condominium-association dues for
the loft where she and her husband lived.
Yurek contends that her son, Mr. Justin Yurek, owned the
loft. But the trial evidence was sufficient to support
findings that (1) Justin had been a "straw
purchaser" and (2) Mrs. Yurek and her husband were the
true owners of the loft. See United States v. Reese,
745 F.3d 1075, 1078 (10th Cir. 2014) (explaining a straw
Yurek and her husband had been leasing the loft and living in
it. They had a contract to purchase the loft, but a tax lien
prevented them from obtaining a mortgage. So they assigned
the contract to Justin, who purchased the loft. Though Justin
was the purchaser, Mrs. Yurek's husband negotiated the
sale and used companies (over which he wielded significant
control) to fund more than $112, 000 of the down payment.
Justin purchased the loft, Mrs. Yurek signed an affidavit on
Justin's behalf, stating under oath that (1) the loft
would serve as Justin's primary residence and (2) Justin
had no intent to lease the loft or to make the purchase as an
investment. But Justin never lived in the loft, and
Mrs. Yurek and her husband continued to live there while
making only infrequent rental payments.
Yurek not only used her role at Bolder to pay
condominium-association dues but also used her check-writing
authority at Veracity Credit Consultants, LLC to pay her
husband's country-club dues and expenses. For example,
she signed a Veracity check for $3, 403.43 to pay these
also paid other expenses for Mrs. Yurek and her husband. For
example, Veracity paid the rent on two homes that Mrs. Yurek
and her husband used. Veracity's former chief financial
officer, Mr. Michael Hennigan, testified that he knew of no
business purpose for these rentals or the country-club dues
also made mortgage payments on the loft where Mrs. Yurek and
her husband lived. The jury could reasonably infer that the
Yureks were trying to hide the source of these mortgage
payments. For example, they recorded the mortgage payments
under an account designated as a loan account for Mrs.
Yurek's husband, but Veracity did little to collect on
the purported loan.
and Veracity paid these various personal expenses for Mrs.
Yurek and her husband while they
• owed substantial taxes and penalties to the IRS and
• tried to settle with the IRS based on their inability
to pay what they owed.
payments continued through the bankruptcy proceedings, where
Mrs. Yurek and her husband tried to discharge their federal
tax debt. But Mrs. Yurek and her husband did not tell the IRS
about these payments.
this combination of evidence, the jury could have reasonably
found that Mrs. Yurek had committed an affirmative act to
evade the payment of taxes. See United States v.
Farr, 701 F.3d 1274, 1285-86 (10th Cir. 2012)
(concluding that the defendant's use of a corporate
account to pay for personal living expenses supported a
factual finding that the defendant had "willfully evaded
[a tax penalty] and [had taken] affirmative steps to do
A reasonable jury could also
have found that Mrs. Yurek had committed affirmative
acts by submitting false tax documents to the IRS.
with her husband, Mrs. Yurek submitted tax forms to the IRS
in 2009 and 2010. On these forms, Mrs. Yurek and her husband
reported that their gross monthly income was $7, 667. But
this amount didn't include Bolder and Veracity's
payments for personal expenses. The jury could reasonably
have viewed these omissions as misleading or even false.
Yurek's submission of misleading or false tax documents
to the IRS could constitute affirmative acts. See Sansone
v. United States, 380 U.S. 343, 351-52 (1965)
("[I]t is undisputed that petitioner filed a tax return
and that the petitioner's filing of a false tax return
constituted a sufficient affirmative commission to satisfy
that requirement of § 7201."); United States v.
Hoskins, 654 F.3d 1086, 1091 (10th Cir. 2011)
(concluding that submission of a false tax return "was
sufficient to establish an affirmative act under §
The evidence was sufficient to find that Mrs. Yurek had acted
satisfy the willfulness requirement, the government had to
prove a specific intent to evade taxes. United States v.
Payne, 978 F.2d 1177, 1182 (10th Cir. 1992); see
Hoskins, 654 F.3d at 1090 ("Under § 7201,
'willfulness' means the 'voluntary, intentional
violation of a known legal duty.'" (quoting
Cheek v. United States, 498 U.S. 192, 201 (1991))).
government can ordinarily establish the willfulness
requirement through "circumstantial evidence or
inferences arising from a defendant's conduct."
United States v. Boisseau, 841 F.3d 1122, 1127 (10th
Cir. 2016). The willfulness requirement is "closely
connected" to the affirmative-act requirement, for
"'[e]vidence of affirmative acts may be used to show
willfulness.'" Id. (quoting United
States v. Romano, 938 F.2d 1569, 1572 (2d Cir. 1991))
(alteration in original).
in the light most favorable to the government, the trial
evidence was sufficient in five ways to prove Mrs.
Yurek's specific intent to evade taxes.
a reasonable jury could have found that Mrs. Yurek had known
of her legal obligation to pay her federal tax debt. With
this finding, the jury could reasonably have concluded that
Mrs. Yurek had committed the affirmative acts with an intent
to evade payment of her tax debt.
Mrs. Yurek represented to the IRS that she and her husband
couldn't pay more than $75, 000 of their tax liability
based on "insufficient assets and income" even
though they had just signed a contract to pay $1.3 million
for a loft. Supp. R., vol. 1, at 125, 185. Given the timing
of Mrs. Yurek's representation to the IRS and the
contract to purchase the loft, a jury could rationally have
found a specific intent to evade the tax debt.
the jury could reasonably have found that Mrs. Yurek had
arranged for Justin to purchase the loft in order to conceal
her financial interest in it. See pp. 6-7, above.
Mrs. Yurek reported to the IRS that she and her husband had a
gross monthly income of $7, 667 in 2009 and 2010, but Bolder
and Veracity paid monthly payments of more than $7, 667 for
the Yureks' personal expenses.
Mrs. Yurek told Veracity's accountant that her husband
would repay his loan account every year. He didn't, so a
jury could reasonably have found that (1) Mrs. Yurek was
misleading the accountant about her husband's intent to
repay the loans and (2) the loan account served as a sham to
deceive the IRS.
jury thus could reasonably have found that Mrs. Yurek had a
specific intent to evade the payment of tax debt, and this
finding would satisfy the requirement of willfulness. See
United States v. Guidry, 199 F.3d 1150, 1157 (10th Cir.
1999) (observing that willfulness can be inferred from
"concealment of assets or covering up sources of
income" (quoting Spies v. United States, 317
U.S. 492, 499 (1943))).
this evidence, Mrs. Yurek argues that she lacked expertise in
tax matters and depended on professionals. But the jury could
reasonably have discounted this argument and found that Mrs.
Yurek had known that she was giving false information to the
IRS. For example, the jury could have reasonably relied on
Mrs. Yurek's accounting experience, which included
handling Veracity's payroll and accounts payable and
helping to prepare Bolder's tax returns in 2005, 2006,
and 2007. See United States v. Guidry, 199 F.3d
1150, 1157 (10th Cir. 1999) (treating evidence of a
defendant's accounting experience as support for a
finding of willfulness).
these reasons, we reject Mrs. Yurek's challenge to the
sufficiency of the evidence for her conviction on tax
The evidence was sufficient to convict Mrs. Yurek of
Yurek was also convicted of bankruptcy fraud. This crime
involves filing a bankruptcy petition with an intent to
execute, conceal, or attempt to execute or conceal "a
scheme or artifice to defraud." 18 U.S.C. § 157(1).
To obtain a conviction on this offense, the government had to
prove three elements beyond a reasonable doubt:
1. Mrs. Yurek had devised or intended to devise a scheme to
defraud or otherwise engage in a fraudulent scheme.
2. Mrs. Yurek had filed a bankruptcy petition with the
purpose to execute or conceal the scheme or attempt to do so.
3. Mrs. Yurek had acted with the specific intent to
See United States v. Spurlin, 664 F.3d 954, 964 (5th
Cir. 2011) (listing the elements that the government must
prove under § 157(1) as "(1) a specific intent to
defraud; (2) a scheme to defraud; and (3) filing a bankruptcy
petition to conceal or execute that scheme"). Mrs. Yurek
argues that the trial evidence was insufficient on the
elements of bankruptcy fraud. We disagree.
in the light most favorable to the government, the trial
evidence was sufficient for a jury to reasonably find
satisfaction of each element. That evidence showed six
1. Mrs. Yurek and her husband had owed a substantial tax debt
to the IRS.
2. Mrs. Yurek and her husband had filed a bankruptcy petition
in order to discharge that debt.
3. When filing the bankruptcy petition, Mrs. Yurek and her
husband had not told the court that Bolder and Veracity were