Opinion and Order Denying Defendant’s Motion for Judgment of Acquittal and Denying as Moot Defendant’s Evidentiary Motion — United States v. Thrush (Dkt. 279, E.D. Mich.)

Summary

Judge Thomas L. Ludington denied Dale Vernon Thrush's motion for judgment of acquittal on February 19, 2025, in Case No. 1:20-cr-20365 in the Eastern District of Michigan. Thrush was indicted in August 2020 on payroll tax and failure-to-file counts, and a November 2021 trial ended in a mistrial after the government's most material witness tested positive for COVID-19. In February 2021, with those charges pending, Thrush applied for a PPP loan and said the business was not subject to an indictment. Of three wire fraud counts added in July 2023, the government dismissed two; the third was tried separately and a jury convicted Thrush in December 2024. The opinion finds a rational jury could infer Thrush knowingly misrepresented the indictment to obtain the loan.

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Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4933 Filed 02/19/25 Page 1 of 13

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff, Case No. 1:20-cr-20365
V. Honorable Thomas L. Ludington
United States District Judge
DALE VERNON THRUSH,
Defendant.

/

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT OF
ACQUITTAL AND DENYING AS MOOT DEFENDANT’S EVIDENTIARY MOTION

In August 2020, Defendant Dale Vernon Thrush was charged with ten felony counts of
willful failure to pay payroll taxes, in violation of 26 U.S.C. § 7202, and four misdemeanor counts
of willful failure to file a personal tax return, in violation of 26 U.S.C. § 7203. On September 2,
2020, Defendant appeared before Magistrate Judge David R. Grand for an arraignment hearing.
Defendant was represented by retained counsel for the hearing. During the hearing, Defendant
acknowledged the charges in the Indictment, received bond, and reviewed the conditions of his
bond—which included agreeing not to enter a loan or other credit transaction without written
permission from pretrial services. The case proceeded to trial in November 2021, but a mistrial
was declared after the Government’s most material witness tested positive for COVID-19 and,
under administrative orders in effect at that time.

After the Government indicted Defendant for felony tax counts, Defendant completed a
Paycheck Protection Program (PPP) loan application for his wholly owned business. In the
application, Defendant indicated that he was not subject to a felony indictment. So in July 2023,
the Government filed a superseding indictment, adding three counts of wire fraud under 18 U.S.C.

§ 1343 to the fourteen tax counts. The Government later dismissed two wire fraud counts. The

Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4934 Filed 02/19/25 Page 2 of 13

remaining wire fraud count was then severed from the tax charges in February 2024.

Against that backdrop, Defendant filed an evidentiary motion seeking to exclude specific
PPP-loan-document evidence the night before trial. The wire fraud trial then began on December
10, 2024. At the end of the Government’s case, Defendant moved for a judgment of acquittal, and
this Court reserved its decision on the Motion. After Defendant presented his defense, the jury
convicted Defendant of wire fraud. Because Defendant was convicted, Defendant’s Motion for
Judgment of Acquittal must be resolved. As explained below, Defendant’s Motion for Judgment
of Acquittal will be denied, and his evidentiary Motion will be denied as moot.

I.
A.

In August 2020, Defendant Dale Vernon Thrush was charged with ten counts of willful
failure to pay payroll taxes, in violation of 26 U.S.C. § 7202, and four counts of willful failure to
file a personal tax return, in violation of 26 U.S.C. § 7203. ECF No. 1. According to the
Government, Defendant has owned several businesses in Lansing and Mt. Pleasant, Michigan,
including 402 N. Mission St. LLC (Mission). ECF No. 1 at PageID.1—2. As the sole owner of the
companies, Defendant was the “responsible person” for collecting and paying payroll taxes. Jd. at
PageID.6. He was also required to file a Form 1040 each year reporting his net profits and
distributions from the businesses. /d. But the Government alleges that Defendant did not pay over
$238,223 in quarterly payroll taxes collected at Mission between April 2014 and December 2016
and did not file a personal income tax Form 1040 for calendar years 2013 through 2016. Jd. at
PageID.6-9.

After several adjournments during the COVID-19 pandemic, a jury trial began in
November 2021. ECF No. 61 at PageID.523. This court declared a mistrial four days into the trial

because the Government’s most material witness and the undersigned’s spouse both tested positive

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Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4935 Filed 02/19/25 Page 3 of 13

for COVID-19, and the jury could not accommodate a two-week adjournment.! ECF No. 61.
Defendant later filed a motion to dismiss on double jeopardy grounds. ECF No. 64. This Court
denied that motion. United States v. Thrush, No. 1:20-CR-20365, 2022 WL 2373351, at *4 (E.D.
Mich. June 30, 2022). Defendant appealed, ECF No. 97, and the case was stayed pending that
appeal, ECF No. 100. On July 17, 2023, the Sixth Circuit affirmed this Court’s decision, holding
that, under the circumstances, “‘an adjournment was proper and not an abuse of discretion.” United
States v. Thrush, No. 22-1588, 2023 WL 4564769, at *6 (6th Cir. July 17, 2023).

B.

1.

After the appeal, the Government filed a superseding indictment on July 26, 2023, which
alleged the same 14 tax counts as the first indictment (Counts 1-14). Compare ECF No. 1 with
ECF No. 118. But the Government added three new wire fraud charges. ECF No. 118 at
PageID.2138—41. What warranted these new charges almost three years into a tax case? Defendant
represented that he was not “presently subject to an indictment” when applying for a Paycheck
Protection Program? (PPP) loan in February of 2021 (Count 16) and stated that he complied with
PPP regulations when applying for PPP loan forgiveness when he allegedly did not (Counts 15
and 17). Id.

Indeed, the Government alleged that Defendant “knowingly devised a scheme and artifice

' Administrative Orders at that time prohibited court staff who had close contact with a person
who tested positive for COVID-19 from returning to the courthouse without waiting 10 days and
presenting a negative COVID-19 test to the court administrator. And, under the circumstances,
those Orders required the undersigned to wait 5 days and receive a negative COVID-19 test before
returning to the Court.

? A detailed explanation of the PPP can be found in this Court’s November 22, 2024 Opinion and
Order. See ECF No. 241 at PageID.4021, n.7; see also United States v. Ho, No. 22-1968, 2024 WL
914976, at *1 (6th Cir. Mar. 4, 2024), cert. denied, 145 S. Ct. 318 (2024) (providing an overview
of the PPP loan program); United States v. Fatani, 125 F.4th 755, 756 (5th Cir. 2025) (same).

-3-

Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4936 Filed 02/19/25 Page 4 of 13

to defraud, and to obtain money and property, by means of materially false and fraudulent
pretenses, representations, and material omissions” transmitted by wire communication. ECF No.
118 at PageID.2138. Specifically, it alleged that Defendant applied for a PPP loan in February
2021 “with materially false and fraudulent representations” —namely, that he was not subject to a
felony indictment when his tax counts were pending—and that in July 2021 and September 2021,
he filed “PPP loan forgiveness applications with materially false and fraudulent representations
about the use of the PPP loan funds and . . . Mission’s entitlement to PPP loan forgiveness.” Jd. at
2139. The Government also alleged that Defendant engaged in a “scheme to defraud” and “unjustly
enrich himself” by using “PPP loan proceeds and subsequent loan forgiveness” impermissibly for
“personal investment account expenses, capital expansion projects, and payment of part of [his]
delinquent payroll tax liability underlying Counts [1—10].” Jd.
2.

On September 5, 2023, Defendant filed a motion to dismiss the new wire fraud counts
(Counts 15, 16, and 17), ECF No. 123, and a motion to sever them from the original tax counts,
ECF No. 122. This Court denied the motion to dismiss but directed the Government to file a bill
of particulars for Counts 15 and 17. ECF No. 134. The Government filed its bill of particulars.
ECF No. 135. But then the Government did an about-face: it filed an unopposed motion to dismiss
Counts 15 and 17 with prejudice because the Government conceded they were “no longer readily
provable using evidence admissible at trial.”” ECF No. 142 at PageID.2488. The Government’s
unopposed motion was thus granted. ECF No. 146. Accordingly, only Count 16—the allegation
that Defendant misrepresented he was not subject to an indictment when applying for a PPP loan—
remained. See ECF No. 118 at PageID.2141. The wire fraud count was severed from the original
tax counts because the tax and wire fraud counts were too unrelated and should be tried separately.

See ECF No. 148.

Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4937 Filed 02/19/25 Page 5 of 13

3.

On March 18, 2024, the Government filed a bill of particulars outlining the “[a]cts [related
to Count 16.” ECF No. 154 at PageID.2664. The Government asserted that “transactions relevant
to Counts 15 and 17”—the counts the Government voluntarily dismissed—were “also relevant to
show the wire fraud scheme charged in Count 16.” Jd. at PageID.2663-—64. In the Government’s
view, proofs about whether Defendant used the PPP loan proceeds according to PPP regulations
were relevant to prove the second part of the alleged two-part scheme: that Defendant submitted
“two PPP loan forgiveness applications with materially false and fraudulent representations about
the use of the PPP loan funds and . . . Mission’s entitlement to PPP loan forgiveness.” Jd. at
PageID.2664; see also ECF No. 118.

Responding to this bill of particulars on Count 16, both Parties indicated they would call
expert witnesses to interpret PPP loan regulations and assess Defendant’s compliance. See ECF
Nos. 169; 171. Importantly, the Government’s expert asserted she would testify that money
received from PPP loans was not “fungible,” ECF No. 170 at PageID.2853, and needed to be
segregated into an account used only to pay expenses permitted by program guidelines, id. at
PageID.2855. But Defendant’s expert asserted he would testify that PPP loan proceeds could,
under the relevant law and regulations, be comingled with the borrower’s other cash accounts,
even though it may not have been prudent to do so. See ECF No. 171 at PageID.2878—80. In this
way, the specific loan proceeds were not required to be used for PPP-approved expenses, and a
borrower complied with PPP regulations so long as any of its business funds were, in fact, used to
pay for PPP-approved expenses. See id. Ultimately, it was “clear that the Parties [were] attempting
to advance two very different—and incompatible—interpretations of the CARES Act and relevant
PPP loan regulations.” ECF No. 172 at PageID.2884. And although any expert testimony

presenting legal conclusions would be excluded at trial, this Court directed supplemental briefing

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Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4938 Filed 02/19/25 Page 6 of 13

to resolve the legal dispute to “accurately instruct the jury about what the law is’ regarding
permissible uses of PPP loan proceeds. Jd. (emphasis in original).

The Parties submitted supplemental briefs, but neither “contain[ed] any legal authority
supporting the Government’s contention” that “loan proceeds were not fungible and that funds
could not be commingled with other funds of the borrower.” ECF No. 186 at PageID.3089
(emphasis in original). So on June 21, 2024, this Court determined that “evidence of [Mission’s]
payments for PPP-approved expenses during the covered periods up to $231,060.00 will be
admissible at trial. Jd. Conversely, evidence of payments or expenditures for non-PPP-approved
expenses will be excluded at trial because such evidence is irrelevant.” /d. (citing FED. R. EVID.
402) (emphasis added).

Defendant then filed a motion to dismiss Count 16. ECF No. 192. The Government
responded that Count 16 should not be dismissed, electing to narrow its theory of the case. ECF
No. 196. The Government’s narrower theory was that Defendant devised a scheme to deprive
another of money by “obtaining a PPP loan that he was not eligible to receive, then seeking and
securing forgiveness for that loan.” ECF No. 196 at PageID.3288. On August 19, 2024, this Court
denied Defendant’s motion to dismiss Count 16. See ECF No. 214.

Leading up to trial Defendant filed several evidentiary motions that this Court resolved.
See ECF No. 251. But on the night before trial, Defendant filed an additional motion in limine to
exclude evidence. ECF No. 252. This pending motion will be denied as moot.

C.

Trial for the wire fraud charge began on December 10, 2024. See ECF No. 264 at

PageID.4585. On December 11, 2024, to launch its case-in-chief, the Government read into the

record Defendant’s Stipulation, which stated he knew that he was a named defendant in a felony

Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4939 Filed 02/19/25 Page 7 of 13

indictment at least as early as September 2, 2020:

Beginning on August 31, 2020, and continuing through the present, Defendant was
aware he was a named defendant in a federal indictment in the Eastern District of
Michigan and was formally charged with at least one felony in that indictment. On
September 2, 2020, Defendant Dale Vernon Thrush appeared in federal court and
acknowledged verbally and in writing that he knew and understood that he was
charged with at least one felony in the relevant indictment.

ECF No. 262 at PageID.4430 (sealed) (cleaned up); see also ECF No. 258 at PageID.4415.
The Government then called five witnesses:

(1) Terri Billups, a deputy director at the Small Business Administration (SBA)
familiar with the PPP loan application process, ECF No. 262 at PageID.443 1-94
(sealed);

(2) Marsha Winters, a PNC bank employee—the bank Mission used for its PPP
loans—familiar with the PPP lending process, Jd. at PageID.4495—527;

(3) Sue Hastings, Defendant’s bookkeeper for Mission, who helped him complete
PPP loan applications, Jd. at PageID.4530-61;

(4) Aaron Santarelli, a PNC bank employee who worked with Mission post-PPP
loan approval and exchanged interstate communications with Mission, Jd. at
PageID.4563-69; and

(5) Sarah Neff-Paisley, a PNC branch manager who worked with Mission and
Defendant on PPP loans, Jd. at PageID.4570—76.

In addition to the Stipulation and the witnesses’ testimony, the Government offered several
exhibits, including Mission’s February 3, 2021 PPP loan application and subsequent loan
forgiveness documents. See id. at PageID.4440-41, 4467—70, 4519-22, 4532-39. The loan
application featured Defendant answering no to the question that, in effect, asked whether he was
“presently subject to indictment.” See id. at PageID.4440-41, 4519-22, 4532-39.

After the Government’s case, Defendant orally sought a judgment of acquittal under
Criminal Rule 29. See ECF No. 257 at PageID.4394—95; see also ECF No. 262 at PageID.4579
(sealed). This Court entertained oral arguments on the Motion before trial resumed on December

12, 2024. See ECF No. 262 at PageID.4579 (sealed). After oral argument on the morning of

Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4940 Filed 02/19/25 Page 8 of 13

December 12, 2024, this Court reserved its decision on the Motion under Criminal Rule 29(b) and
later directed briefing on the Motion. ECF Nos. 264; 269 at PageID.4613-—19 (sealed). After
Defendant presented his defense, the jury convicted Defendant of wire fraud under 18 U.S.C. §
1343. ECF No. 260. Because Defendant was convicted, this Court must resolve his Motion for
Judgment of Acquittal.

Il.

A defendant may move for a judgment of acquittal following the government’s case-in-
chief. FED. R. CRIM. P. 29(a). When the defendant files such a motion, the court must enter a
judgment in the defendant’s favor if the government’s “evidence is insufficient to sustain a
conviction” for the charges the defendant challenges. Jd. The court may “reserve decision on the
motion, proceed with the trial,” and “submit the case to the jury.” FED. R. CRIM. P. 29(b). But if
the jury returns a guilty verdict, the court must decide the defendant’s motion, considering only
the “evidence at the time the ruling was reserved.” Jd.
Criminal Rule 29 imposes a hefty burden on the defendant. United States v. Robinson, 99
F.4th 344, 354 (6th Cir. 2024). Indeed, defendants must show that “no rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” United States v.
Brooks, 987 F.3d 593, 601 (6th Cir. 2021). And when deciding a Rule 29 motion, the court “do[es]
not weigh the evidence presented” or “substitute [its] judgment for that of the jury.” Robinson, 99
F.4th at 353 (cleaned up). Rather, it “must draw all available inferences and resolve all issues of
credibility in favor of the jury’s verdict.” Jd. (cleaned up).
Il.
A.

Here, the Government needed to prove wire fraud. The federal wire fraud statute’s text

Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4941 Filed 02/19/25 Page 9 of 13

mimics an 1872 mail fraud statute,’ criminalizing deceptive schemes aimed at money or property:
Whoever, having devised... any scheme... to defraud, or for obtaining money or
property by means of false or fraudulent pretenses, representations, or promises . .
. transmits or causes to be transmitted by means of wire . . . in interstate or foreign
commerce, any writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice, shall be fined under this title or imprisoned not
more than 20 years, or both.
18 U.S.C. § 1343. Hacking through that textual thicket, the government must prove three things to
convict a defendant of wire fraud: the defendant (1) devised a scheme to defraud—one that features
a material misrepresentation or omission; (2) intended to defraud—that is, knowingly

misrepresented or omitted a material fact intending to deprive a victim of money or property; and

(3) used an interstate wire communication to further the scheme.* United States v. Maddux, 917

3 Because the wire fraud statute mirrors the mail fraud statute, courts must interpret them in pari
materia, meaning where their text overlaps, courts interpret the two statutes as one. Pasquantino
v. United States, 544 U.S. 349, 355 n.2 (2005); see also United States v. Kennedy, 714 F.3d 951,
958 (6th Cir. 2013) (“This court has interpreted the mail-fraud and wire-fraud statutes as having
essentially the same elements, except for the use of the mails versus the wires.”’). So this Opinion
and Order incorporates cases that focused on applying portions of the mail fraud statute that the
wire fraud statute replicates.

* Some Sixth Circuit cases treat the intent to defraud element as a subcomponent of the “scheme
to defraud” element. See, e.g., United States v. Bolos, 104 F.4th 562, 569-73 (6th Cir. 2024)
(“[T]he the statute only criminalizes one kind of scheme: schemes intended to deprive people of
their money or property,” using “known [material] misrepresentation[s].”) (cleaned up); United
States v. Sadler, 750 F.3d 585, 590-92 (6th Cir. 2014). In this way, analyzing it as a “three-part
test[]” can “distract more than inform,” United States v. Bertram, 900 F.3d 743, 748 (6th Cir.
2018), and can create redundancy. And the Supreme Court sometimes treats the intent to deprive
element as a subcomponent of the “scheme to defraud” requirement. See Ciminelli v. United States,
598 U.S. 306, 312 (2023) (“Although the statute is phrased in the disjunctive, we have consistently
understood the money or property requirement to limit the “scheme . . . to defraud” element
because the common understanding of the words “to defraud” when the statute was enacted
referred to wronging one in his property rights.”) (cleaned up); see also Cleveland v. United States,
531 U.S. 12, 19 (2000); Kelly v. United States, 590 U.S. 391, 398-404 (2020); McNally v. United
States, 483 U.S. 350, 358 (1987); Schmuck v. United States, 489 U.S. 705, 721 (1989) (“There are
two elements in mail [and wire] fraud: (1) having devised or intending to devise a scheme to
defraud (or to perform specified fraudulent acts), and (2) use of the mail [or an interstate wire] for
the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts.”); but
see Pasquantino, 544 U.S. at 356-57 (2005) (discussing the elements separately); Carpenter v.
United States, 484 U.S. 19, 27-28 (1987) (same). But regardless of how one organizes the
elements, the statute’s core principles remain the same: wire fraud requires a scheme that features

-9-

Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4942 Filed 02/19/25 Page 10 of 13

F.3d 437, 443 (6th Cir. 2019). Defendant’s Motion challenges only the intent element, which is
addressed below. See generally ECF Nos. 257; 269 at PageID.4613-—19 (sealed); 272.
B.

Defendant argues that the Government failed to sufficiently prove he intended to defraud
the SBA when he stated on his February 2021 PPP loan application that he was not “presently
subject to an indictment,” despite having been indicted in August 2020 and arraigned on the
charges on September 2, 2020. ECF Nos. 257 at PageID.4400—03; 272 at PageID.4879—84. He
argues that he misunderstood the phrase, believing “subject to indictment” referred to the
possibility of a future indictment rather than an existing one. ECF No. 272 at PageID.4879—84. So
in Defendant’s view, his misrepresentation was inadvertent, and the Government failed to present
evidence from which a jury could conclude that it was not. Jd. Not so.

The wire fraud statute is a specific intent statute. United States v. Daniel, 329 F.3d 480,
487 (6th Cir. 2003). So mistaken misrepresentations do not suffice. See id. at 488; see also
Kennedy, 714 F.3d at 958. Rather, to satisfy the intent element, the government must prove that
the defendant knowingly misrepresented a material fact? aiming to deprive someone of money or
a traditional property interest. Daniel, 329 F.3d at 488; see also Ciminelli, 598 U.S. at 309. And

the Government need not present direct evidence of intent: circumstantial evidence will do. See

knowing and material deception aimed at depriving another of money or property. Maddux, 917
F.3d at 443; ECF No. 258 at PageID.4414.

> Defendant does not dispute that the Government sufficiently showed that representing that he
was not subject to an indictment was a material misrepresentation. See generally ECF Nos. 257;
272. Nor could he. A material misrepresentation is one that “has a natural tendency to influence,
or [is] capable of influencing, the decision of the decision-making body to which it was addressed.”
Neder v. United States, 527 U.S. 1, 16 (1999) (cleaned up). At trial, Billups—the SBA Director
familiar with the PPP loan program—testified that Defendant’s loan would not have been approved
if he answered the indictment question correctly. ECF No. 262 at PageID.4441, 4461-62 (sealed).
And the Government entered into evidence the PPP loan application, which indicated the same.
See id. at PageID.4440. So the misrepresentation influenced the loan decision, making it material.

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Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4943 Filed 02/19/25 Page 11 of 13

United States v. Paulus, 894 F.3d 267, 277 (6th Cir. 2018).

Defendant asserts that a misrepresentation alone is insufficient to infer an intent to defraud
rather than a mistaken misrepresentation. ECF No. 272 at PageID.4879—84. And he argues that the
Government’s sole evidence of intent was Defendant’s misrepresentation that he was not
“presently subject to indictment” when applying for the loan. Jd. To his point, Sixth Circuit cases
often emphasize that the government provided more than the misrepresentation itself to prove
fraudulent intent when tackling sufficiency of evidence issues. See, e.g., Robinson, 99 F.4th at 357;
Maddux, 917 F.3d at 444. But Defendant’s argument falters on the facts: the Government provided
more than just the misrepresentation here.

Start with Defendant’s Stipulation. Recall that the Government read into the record
Defendant’s Stipulation before calling its witnesses. ECF No. 262 at PageID.4430 (sealed). And
remember that the Stipulation reflected not only that Defendant was named in an indictment but
that “[o]n September 2, 2020, Defendant . . . appeared in federal court and acknowledged verbally
and in writing that he knew and understood that he was charged with at least one felony in the
relevant indictment.” J/d.; see also ECF No. 258 at PageID.4415.

Then consider Sue Hastings’s testimony. Hastings testified that she and Defendant
completed the February 2021 PPP loan application together when she knew Defendant was under
indictment. See ECF No. 262 at PageID.4532—39 (sealed). Yet she stated she was not sure
Defendant was “subject to” indictment at the time. /d. at PageID.4535-36. Hastings also testified
Defendant had to submit the PPP loan application three times over two weeks before it was
approved because she made clerical errors on the application. See id. at 454446. She stated that
each time, she would complete the “top” part of the application—which sought Mission’s

administrative information—and Defendant would complete the bottom portion, which included

-ll-

Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4944 Filed 02/19/25 Page 12 of 13

the misrepresentation about his indictment status. Jd. But each time Defendant completed the
bottom portion, she would leave the room. /d. Yet she could not remember why, only suggesting
that she may have gone to the bathroom. /d. at PageID.4538.

Now tie all this together. The jury heard a stipulation in which Defendant conceded that he
knew he was indicted for a felony offense months before completing his PPP loan application. Jd.
at PageID.4430. It heard testimony that Defendant misrepresented that he was not “presently
subject to indictment” three times—all after appearing in court and acknowledging he was under
indictment—and never sought clarification. See id. at PageID.4544—46. And it heard Hastings
curiously state she left the room each time Defendant answered the question that would have
prevented his company from securing a loan if he answered it correctly. See id. PageID.4532-39,
4544-46. Collectively, this evidence is enough for a jury to conclude that Defendant’s claim,
echoed by Hastings, that he did not understand that “presently subject to indictment” meant “under
indictment” is just crafty wordplay. At the very least, this evidence is sufficient for a jury to
conclude Defendant recklessly disregarded “the truth of his statements,” which satisfies the
Government’s burden to prove Defendant’s intent to defraud. Kennedy, 714 F.3d at 958 (citing
United States v. DeSantis, 134 F.3d 760, 764 (6th Cir.1998)). Either way, a rational jury could
infer from this evidence that Defendant knowingly misrepresented he was not subject to indictment
to obtain the PPP loan proceeds.

In sum, Defendant has not met his “heavy burden” to show that no rational trier of fact
could conclude that the Government failed to show that Defendant intended to defraud when he
completed Mission’s PPP loan application. Daniel, 329 F.3d at 485. So Defendant’s Motion for

Judgment of Acquittal, ECF No. 257, will be denied.

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Case 1:20-cr-20365-TLL-PTM ECF No. 279, PagelD.4945 Filed 02/19/25 Page 13 of 13

IV.
Accordingly, it is ORDERED that Defendant’s Motion in Limine to Exclude Evidence,
ECF No. 252, is DENIED AS MOOT.
Further, it is ORDERED that Defendant’s Motion for Judgment of Acquittal, ECF No.
257, is DENIED.
This is not a final order and does not close the above-captioned case.
Dated: February 19, 2025 s/Thomas L. Ludington

THOMAS L. LUDINGTON
United States District Judge

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