Opinion and Order Denying Defendant’s Motion for Judgment of Acquittal or New Trial — United States v. Thrush (Dkt. 313, E.D. Mich.)

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An opinion and order by United States District Judge Thomas L. Ludington in United States v. Dale Vernon Thrush, Case No. 1:20-cr-20365, in the U.S. District Court for the Eastern District of Michigan, Northern Division, filed July 29, 2025 as ECF No. 313. After a trial of the 14 tax counts, in which the jury acquitted Thrush of seven charges and convicted him of seven, the court denies his motion for judgment of acquittal or a new trial on the seven convictions (ECF No. 301). The opinion recounts that a superseding indictment added three wire fraud counts, that two were dismissed, and that the remaining one, Count 16, alleges that he checked a box saying he was not presently subject to an indictment on a Paycheck Protection Program loan application; it was severed from the tax counts. It states that the order is not final and does not close the case.

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Case 1:20-cr-20365-TLL-PTM ECF No. 313, PageID.6563 Filed 07/29/25 Page 1 of 21




                             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 OR NEW TRIAL

       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. 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. Under applicable administrative orders, the witness could not enter the

building to testify for two weeks, and a two-week adjournment was not feasible for the jury.

       In July 2023, the Government filed a superseding indictment, adding three counts of wire

fraud, in violation of 18 U.S.C. § 1343, to the fourteen existing tax counts. After the Government

was directed to file a bill of particulars detailing the new wire fraud charges, it dismissed two of

them. The remaining wire fraud count was severed and tried separately from the tax counts.

       Trial of Counts 1–14, the tax charges, began on February 26, 2025. Ultimately, the jury

acquitted Defendant of seven charges and convicted Defendant of seven charges. Defendant now

moves for a judgment of acquittal or a new trial on the seven charges for which he was

convicted. For the reasons explained below, Defendant’s Motion will be denied.

Case 1:20-cr-20365-TLL-PTM ECF No. 313, PageID.6564 Filed 07/29/25 Page 2 of 21




                                               I.

                                        A. Background

       Defendant has owned several businesses in Lansing, Farwell, and Mt. Pleasant,

Michigan, including 402 N. Mission St. LLC (“Mission”)—a payroll company for his

businesses—Xtreme Enterprises, Inc. (“Xtreme”), Verno All Tune, Inc. (“Verno”), and USAuto

Repair, Inc. (“U.S. Auto”). ECF Nos. 1 at PageID.1–2; 291 at PageID.5283. As the sole owner of

the businesses, Defendant was the “responsible person” for collecting and paying payroll taxes.

ECF No. 1 at PageID.6; see also ECF No. 290 at PageID.5248. He was also required to file a

Form 1040—an individual tax return—with the Internal Revenue Service (IRS) each year,

reporting, among other things, his net profit distributions from the businesses. ECF No. 1 at

PageID.6; see also ECF No. 290 at PageID.5249.

       But despite withholding payroll taxes from his employees’ paychecks, see ECF Nos. 291

at PageID.5311, 5321–22, 5400, 5417; 293 at PageID.5697, Defendant did not timely pay

Mission’s quarterly payroll taxes in full between April 2014 and December 2016, except for Q2

2016. ECF No. 1 at PageID.6–9; see also ECF Nos. 290 at PageID.5248; 293 at PageID.5622.

Nor did Defendant timely file a Form 1040 for calendar years 2013 through 2016.1 ECF No. 1 at

PageID.6–9; see also ECF No. 292 at PageID.5584–88. Yet during those periods, Defendant

spent thousands of dollars on ordinary business expenses, acquisition costs for a newly

purchased gas station, construction costs for that gas station, and personal expenses. ECF No. 1

at PageID.6; see also ECF Nos. 291 at PageID.5331–43, 5357–62, 5365–68, 5409, 5437–38; 292


1
  At a Final Pretrial Conference on February 12, 2025, see ECF No. 274, Defendant stipulated
that although he was responsible for and required to, he did not timely pay the payroll taxes or
file his individual tax returns for the pertinent periods. Accord ECF No. 293 at PageID.5686. He
also did not object to the Draft Jury Instructions reflecting that stipulation, see ECF Nos. 277;
302 at PageID.5920, and affirmatively agreed to the Final Jury Instructions incorporating that
stipulation, see ECF No. 302 at PageID.5920.


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at PageID.5600.

       As a general defense, Defendant claimed that he delegated the bookkeeping at Mission to

an employee, Donna Henke, and she handled the payroll taxes during the relevant period. ECF

No. 23 at PageID.104–05. Defendant also maintained that he believed Henke was acting as his

personal tax preparer. Id. Defendant claimed that he often asked Henke about the status of his

business and personal taxes. Id. at PageID.105. According to Defendant, in response, Henke

“always” told him “everything was being taken care of.” See id. And Defendant maintained that

despite Henke’s assurances, Mission’s books were in disarray during that period and, as a result,

Henke did not file his individual returns or pay Mission’s payroll taxes. See, e.g., id.; see also

ECF No. 292 at PageID.5463, 5547.

       Against that backdrop, on June 22, 2017, attempting to collect Defendant’s unpaid taxes,

an IRS Revenue Officer (RO) interviewed Defendant. ECF No. 20 at PageID.69. The RO told

Defendant to file his Form 1040s for 2013, 2014, and 2015 within six weeks and offered to

“work with [Defendant] to piece together his individual income taxes.” Id. Defendant’s taxes

went unpaid during those six weeks. ECF No. 20-1 at PageID.79. And Defendant allegedly told

the RO that he could not file the Form 1040s until his business accounting was completed

because all his businesses were pass-through entities. Id. Thus, his personal returns depended on

the business’s “income and expenses first being determined.” Id.

       About nine months later, on March 2, 2018, IRS Special Agents interviewed Defendant.

See ECF No. 20 at PageID.69. These agents informed him that they were “investigating potential

criminal violations” flowing from his unpaid taxes. Id. According to IRS account transcripts,

Defendant began making payments on his tax liability in October 2018. Id. Records also show

that the IRS received Defendant’s Form 1040s for 2013, 2014, and 2015 on January 9, 2020. Id.




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at PageID.70. Defendant claimed that business finances were not corrected until November

2019. ECF No. 23 at PageID.106–07. He also claimed to have sent a Form 1040 for 2016, but

states that it must have been lost or unprocessed, so he sent another Form 1040 for 2016. Id. at

PageID.104.

       Months later, the Government charged Defendant in a fourteen-count indictment on

August 19, 2020. ECF No. 1. Counts 1 through 10 alleged that Defendant willfully failed to pay

quarterly payroll taxes for ten quarters from 2014 to 2016, in violation of 26 U.S.C. § 7202. Id. at

PageID.5–7. Counts 11 through 14 alleged that Defendant willfully failed to file personal tax

returns from 2013 to 2016, in violation of 26 U.S.C. § 7203. Id. at PageID.8–9.

                                     B. Mistrial and Appeal

       After several adjournments during the COVID-19 pandemic, a jury trial began in

November 2021. ECF No. 61 at PageID.523. At trial, the Government asserted that “the

evidence [would] show that for 10 quarters between April 2014 to December 2016, [Defendant],

through his company 402 North Mission Street, took out six figures worth of payroll taxes from

his employees’ paychecks but failed to pay them over to the IRS.” ECF No. 102 at PageID.1533.

The Government further asserted that the evidence at trial would show that “[Defendant]

invested large sums of money into [a development project] right around the time that he refused

to pay over payroll taxes.” Id. at PageID.1534.

       Defendant, on the other hand, asserted that he did not “know anything about bookkeeping

or taxes, and [] never did his own taxes” but hired “a good family friend” to be his bookkeeper.

Id. at PageID.1537–38. And that bookkeeper, according to Defendant, had “control” over the

financial part of his business and was responsible for paying the business’s payroll taxes and

Defendant’s personal income tax returns. Id.

       This court declared a mistrial four days into the trial. That is because the Government’s


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most material witness and the undersigned’s spouse both tested positive for COVID-19, and the

jury could not accommodate a two-week adjournment.2 ECF No. 61.

       Defendant later filed a motion to dismiss on double-jeopardy grounds.3 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). And the Sixth Circuit affirmed on appeal, holding that the

“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).

                   C. Superseding Indictment and Severance of Charges

       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 augmented its allegations: the Superseding Indictment added

three new wire fraud charges. ECF No. 118 at PageID.2138–41. What warranted these new

charges almost three years into a tax evasion case? Defendant allegedly checked a box that he

was not “presently subject to an indictment” when applying for a Paycheck Protection Program

(PPP) loan during this case (Count 16) and allegedly falsely stated that he complied with PPP

regulations when applying for PPP loan forgiveness (Counts 15 and 17). Id.

       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,


2
  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.
3
  Part of the reason Defendant moved to dismiss on double-jeopardy grounds was that the
Government allegedly knew that its material witness tested positive for COVID-19 with a rapid
test before the jury was empaneled and did not inform the Court. See ECF No. 96 at
PageID.1503.


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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 granted. ECF No. 146. Accordingly, only Count 16—

alleging Defendant misrepresented that he was not subject to an indictment when applying for a

PPP loan—remained. See ECF No. 118 at PageID.2141. This wire fraud count was severed from

the original tax counts due to their subject-matter differences. See ECF No. 148.

                         D. New Trial, Verdict, and Pending Motion

       After several adjournments, the new trial for the tax charges (Counts 1–14) began on

February 26, 2025. See ECF No. 305 at PageID.6012 (sealed). At trial, the Government called

fourteen witnesses:

       (1) Donna Henke, Defendants’ bookkeeper for Mission from approximately 2007
       to August 2016, ECF No. 291 at PageID.5270–5395;

       (2) Scott Tyler, a former employee who worked for Defendant during relevant
       filing periods, id. at PageID.5396–5405;

       (3) Gary Reed, an owner of a concrete-services company that performed work for
       Defendant during the relevant filing periods, id. at PageID.5406–13;

       (4) Mark Soeltner, another former employee who worked for Defendant during
       the relevant filing periods, id. at PageID.5415–19;

       (5) Tim Wilson, a bank employee who serviced Defendant’s home equity loan
       during the relevant filing periods, id. at PageID.5419–27;

       (6) Becky Yarger, an owner of an electrical company that performed work for
       Defendant during the relevant filing periods, ECF No. 292 at PageID.5434–42;

       (7) Kathy Jankowski, an employee for a construction company that performed
       work for Defendant during the relevant filing periods, id. at PageID.5443–51;

       (8) Brandilyn Pawlick, an RO for the IRS who was assigned Defendant’s case and


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Case 1:20-cr-20365-TLL-PTM ECF No. 313, PageID.6569 Filed 07/29/25 Page 7 of 21




       responsible for attempting to collect his unpaid and delinquent taxes, id. at
       PageID.5452–5557;

       (9) Joseph Wehner, a commercial lender who serviced one of Defendant’s loans
       during the relevant period, id. at PageID.5558–66;

       (10) Aaron Kenyon, an attorney and business owner who purchased two facilities
       from Defendant during the relevant time period, id. at PageID.5566–73;

       (11) Renee McLean, a records custodian for the IRS, id. at PageID.5574–92;

       (12) Steve Gustin, an employee for a petroleum company that worked with
       Defendant, id. at PageID.5593–95;

       (13) Chad Bauer, the owner of an excavating company that performed work for
       Defendant in the relevant filing periods, id. at PageID.5596–5602; and

       (14) Erin Demaagd, an IRS Revenue Agent assigned to assist with Defendant’s
       trial, ECF No. 293 at PageID.5612–5684.

And the Government presented over 140 exhibits, including various IRS records and transcripts.

See ECF No. 299.

       For his case, Defendant called four witnesses:

       (1) Jason Alkamano, a Certified Public Accountant (CPA) testifying as an expert
       witness, ECF No. 293 at PageID.5690–5718;

       (2) Frank Ross, a CPA retained by Defendant, id. at PageID.5720–32;

       (3) Jody Thrush, Defendant’s spouse, id. at PageID.5733–54; and

       (4) Sue Hastings, Defendant’s bookkeeper for Mission, who replaced Donna
       Henke in 2016, ECF No. 302 at PageID.5833–98.

Defendant also presented several exhibits. See ECF Nos. 293 at PageID.5610; 302 at

PageID.5831.

       In the end, on March 5, 2025, the jury returned a split verdict. See ECF No. 296. The jury

convicted Defendant of seven counts, Counts 5, 9, 10, 11, 12, 13, and 14. Id. at PageID.5773–75.

And the jury acquitted Defendant of seven counts, Counts 1, 2, 3, 4, 6, 7, and 8. Id. at

PageID.5772–73. A summary of the jury’s verdict is as follows:



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Case 1:20-cr-20365-TLL-PTM ECF No. 313, PageID.6570 Filed 07/29/25 Page 8 of 21




Count                     Charge                         Offense Period            Verdict
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   1                                                         Q2 2014             Not Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   2                                                         Q3 2014             Not Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   3                                                         Q4 2014             Not Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   4                                                         Q1 2015             Not Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   5                                                         Q2 2015               Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   6                                                         Q3 2015             Not Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   7                                                         Q4 2015             Not Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   8                                                         Q1 2016             Not Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
   9                                                         Q3 2016               Guilty
                    on Behalf of Mission
         26 U.S.C. § 7202 – Failure to Pay Over Tax
  10                                                         Q4 2016               Guilty
                    on Behalf of Mission
         26 U.S.C. § 7203 – Failure to File Individual
  11                                                           2013                Guilty
                         Tax Return
         26 U.S.C. § 7203 – Failure to File Individual
  12                                                           2014                Guilty
                         Tax Return
         26 U.S.C. § 7203 – Failure to File Individual
  13                                                           2015                Guilty
                         Tax Return
         26 U.S.C. § 7203 – Failure to File Individual
  14                                                           2016                Guilty
                         Tax Return

Id. at PageID.5772–75.

        Two weeks later, Defendant moved for “an order of acquittal . . . on each charge” for

which the jury convicted him. ECF No. 301 at PageID.5810. Alternatively, he seeks a new trial

for those charges. See id.

                                              II.

                                A. Criminal Rule 29 Standard

        When a jury finds a defendant guilty, the defendant may move for a judgment of

acquittal. FED. R. CRIM. P. 29(c). If the defendant files such a motion, the court must enter a



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judgment in the defendant’s favor if the government’s “evidence is insufficient to sustain a

conviction” for the charges the defendant challenges. Id. But 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 (citation

modified). Rather, it “must draw all available inferences and resolve all issues of credibility in

favor of the jury’s verdict.” Id. (citation modified).

                                  B. Criminal Rule 33 Standard

       Criminal Rule 33 permits courts to “vacate any judgment and grant a new trial if the

interests of justice so require.” FED. R. CRIM. P. 33(a). “The rule ‘does not define ‘interest[ ] of

justice’ and the courts have had little success in trying to generalize its meaning.’” United States

v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010) (quoting United States v. Kuzniar, 881 F.2d 466,

470 (7th Cir. 1989)). Still, a few “themes have emerged from [Criminal] Rule 33’s case law.”

Robinson, 99 F.4th at 367.

       For example, the primary “use of a Rule 33 motion is to seek a new trial on the ground

that ‘the [jury’s] verdict was against the manifest weight of the evidence.’” Munoz, 605 F.3d at

373 (quoting United States v. Crumb, 187 F. App’x 532, 536 (6th Cir. 2006)). Where a defendant

bases a Criminal Rule 33 motion on the weight of the evidence, he faces a high bar: A court may

only grant a new trial if the evidence weighs “heavily against the verdict.” United States v.

Bowens, 938 F.3d 790, 796 (6th Cir. 2019); see also United States v. Burks, 974 F.3d 622, 627–

28 (6th Cir. 2020) (collecting cases). Indeed, a new trial is warranted only in “extraordinary




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Case 1:20-cr-20365-TLL-PTM ECF No. 313, PageID.6572 Filed 07/29/25 Page 10 of 21




 circumstances,” when “the verdict exceeds the bounds of reasonableness[.]” Burks, 974 F.3d at

 625 (citation modified). “‘The verdict is not unreasonable simply because different inferences

 could have been drawn or because other results are more reasonable.’” Id. (quoting United States

 v. Lyimo, 574 F. App’x 667, 672 (6th Cir. 2014)). And the court must “respect the role of the

 jury and ensure that evidence-supported convictions are upheld” when considering a motion

 under Criminal Rule 33. Burks, 974 F.3d at 625.

        Courts also “widely agreed that Rule 33’s ‘interest of justice’ standard allows the grant of

 a new trial where substantial legal error has occurred.” Munoz, 605 F.3d at 373 (citing United

 States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004)). “Less clear is whether a district court may

 grant [Criminal] Rule 33 relief where the verdict is not against the substantial weight of the

 evidence, and where no reversible error or violation of the defendant’s substantial rights has

 occurred, but where the district court nonetheless believes that ‘the interest of justice’ requires a

 new trial.” Id. at 374. Yet the “generic ‘interest of justice’ language in [Criminal] Rule 33’s text,

 at least at first glance, would appear to permit the grant of a new trial on the basis of perceived

 unfairness of less than reversible magnitude.” Id.

                                                 III.

        Although it is difficult to pin down the particulars of Defendant’s arguments, they

 generally pertain to two categories. First, he challenges his payroll tax convictions under 26

 U.S.C. § 7202, Counts 5, 9, and 10. See ECF No. 301 at PageID.5810, 5815–19. Second, he

 challenges his convictions under 26 U.S.C. § 7203 for failing to file his individual tax returns,

 Counts 11–14. These categories will be addressed in turn below.

                   A. Failure to Pay Over Payroll Taxes (Counts 5, 9, and 10)

        For Counts 5, 9, and 10—counts charging Defendant with failing to submit Form 941s

 and pay payroll taxes under 26 U.S.C. § 7202—the Government needed to prove three elements.


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 See United States v. Blanchard, 618 F.3d 562, 571 (6th Cir. 2010). Indeed, the Government

 needed to prove that Defendant “(1) had a duty to truthfully account for and pay over federal

 income tax withheld from employees’ wages, (2) failed to account for truthfully and to pay over

 these taxes, [and] (3) acted willfully.” Id. at 571; accord ECF No. 290 at PageID.5248.

 Defendant disputes only the willfulness element. See ECF Nos. 301 at PageID.5818; 306 at

 PageID.6126; accord ECF No. 290 at PageID.5248.

        The willfulness element creates an exception to the general rule that ignorance or

 misunderstanding of the law is not a defense. See Cheek v. United States, 498 U.S. 192, 199–200

 (1991). Indeed, this element requires the Government to prove that the defendant voluntarily and

 intentionally violated a “known legal duty.” Id. at 201. So defendants do not act willfully when

 they are ignorant of the law—after all, under those circumstances, they do not violate a known

 legal duty. See id. at 201–02. Nor do defendants act willfully when they violate the law based on

 a good-faith misunderstanding of what the law requires. Id.; see also United States v. Leonard,

 802 F.2d 460 (6th Cir. 1986). And that good-faith misunderstanding need not be objectively

 reasonable. See United States v. Pensyl, 387 F.3d 456, 459–60 (6th Cir. 2004). But “although a

 defendant’s inability to pay taxes when due bears on the willfulness of his act, it is not an

 element of the offense” and does not preclude a conviction for failing to pay payroll taxes.

 Blanchard, 618 F.3d at 572.

        Defendant advances a specific argument for Count 5. See ECF No. 301 at PageID.5815–

 19. And although Defendant does not advance a clear argument for why he should be acquitted

 of or granted a new trial for Counts 9 and 10, he seemingly includes them in the charges for

 which he seeks relief. See id. at PageID.5810 (requesting this Court to “set aside the conviction

 and enter an order of acquittal or new trial on each charge” for which the jury returned a guilty




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 verdict) (emphasis added)). So this Court will address his specific argument for Count 5 first.

 Then it will address the propriety of acquittal or a new trial for Counts 9 and 10.

                                             1. Count 5

        Recognizing that he is pushing against the grain of “ninety-plus years of precedent,” id. at

 PageID.5815, Defendant argues that he should be acquitted of Count 5 or granted a new trial

 because the guilty verdict is inconsistent with his acquittals on Counts 1–4 and 6–8, see id. at

 PageID.5815–19. He asserts that Count 5 “is found amid identical counts . . . , with identical

 elements, without a single shred of evidence on the record that could possibly differentiate the

 verdict on [Count 5] from the seven identical counts for which [Defendant] was acquitted.” Id. at

 PageID.5816–17. More specifically, Defendant contends that the jury could not have found that

 he willfully failed to pay payroll taxes for Q2 2015 (Count 5) while also finding that he lacked

 willfulness for the acquitted quarters. See id. In this way, Defendant argues, the jury’s verdicts

 on these counts are “arbitrary and irrational.” Id. at PageID.5819. Not so.

        Juries are “free to render inconsistent verdicts or to employ relevant evidence in

 convicting on one count that it may seem to have rejected in acquitting on other counts.” United

 States v. Rowan, 518 F.2d 685, 689 (6th Cir. 1975) (citing Dunn v. United States, 284 U.S. 390,

 393 (1932)); see also United States v. Powell, 469 U.S. 57, 62–63 (1984); Bravo-Fernandez v.

 United States, 580 U.S. 5, 12–13 (2016). Verdicts are inconsistent when a guilty verdict on one

 count and an acquittal on another count “cannot rationally be reconciled.” Powell, 469 U.S. at

 69. For example, if—based on the same conduct—a jury acquits the defendant of a conspiracy

 offense but finds him guilty of a separate offense incorporating conspiracy as an element, those

 verdicts would be irreconcilably inconsistent. See United States v. Ruiz, 386 F. App’x 530, 533

 (6th Cir. 2010) (illustrating Powell, 469 U.S. at 59–60).




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        Generally, courts may not review or overturn an inconsistent verdict under Criminal Rule

 33 or otherwise, and thus “a criminal defendant may not attack a jury’s finding of guilt on one

 count as inconsistent with the jury’s verdict of acquittal on another count.” Bravo-Fernandez,

 580 U.S. at 12. Rather, “a defendant’s protection against” juror irrationality “lies in” a challenge

 to the “sufficiency of evidence.” Ruiz, 386 F. App’x at 533 (citing Powell, 469 U.S. at 67); see

 also United States v. Ashraf, 628 F.3d 813, 823 (6th Cir. 2011). This non-reviewability rule

 makes sense: when a jury renders inconsistent verdicts, “[i]t is unclear whose ox has been

 gored.” United States v. Lawrence, 555 F.3d 254, 261 (6th Cir. 2009). Indeed, “it is just as likely

 that ‘the jury, convinced of guilt, properly reached its conclusion on [one count], and then

 through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [related]

 offense.’” Bravo-Fernandez, 580 at 13 (quoting Powell, 469 U.S., at 65). And the Supreme

 Court has recognized “no exceptions to this rule.” Id. at 12.

        Even so, the Sixth Circuit has crafted two exceptions to the rule that irreconcilably

 inconsistent verdicts are not reviewable. First, when jury verdicts “are marked by such

 inconsistency as to indicate arbitrariness or irrationality,” “relief may be warranted.” Lawrence,

 555 F.3d at 263. Second, “in a situation where a guilty verdict on one count necessarily excludes

 a finding of guilt on another, i.e. a mutually exclusive verdict, . . . court[s] can review the

 defendant’s challenge to the verdict.” United States v. Randolph, 794 F.3d 602, 610–11 (6th Cir.

 2015) (citation modified); see also Ruiz, 386 F. App’x at 533 (providing as an example of a

 mutually exclusive verdict, a jury convicting “a defendant of both larceny and embezzlement

 based on the same underlying conduct”). Still, defendants tread “on shaky footing” when they

 attempt to invoke these exceptions. Lawrence, 555 F.3d at 262.

        Flowing from these principles is a two-step analysis for courts to employ when faced




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 with an inconsistent-verdicts challenge. First, as a threshold matter, a court must determine

 whether the verdict actually is irreconcilably inconsistent. See United States v. Stetler, 526 F.

 App’x 631, 634 (6th Cir. 2013) (determining, in the first instance, whether a verdict was

 irreconcilably inconsistent); see also Lawrence, 555 F.3d at 265–66. Second, if the verdicts are

 irreconcilably inconsistent, a court must determine whether one of the Sixth Circuit’s exceptions

 to non-reviewability applies. Lawrence, 555 F.3d at 263. Here, Defendant’s guilty verdict for

 Count 5 is not irreconcilably inconsistent with his acquittals on Counts 1–4 and 6–8, so his

 argument fails at step one.

        Indeed, if the jury carefully considered several factors bearing on willfulness—including

 Defendant’s ability to pay his payroll taxes, see Blanchard, 618 F.3d at 572—the verdicts are

 reconcilable. Specifically, the jury could have found that Defendant knew of his obligation to

 pay his payroll taxes and willfully chose not to do so in Q2 2015 (Count 5), but not in other

 charged quarters. To that end, Donna Henke, Defendant’s bookkeeper until August 2016,

 testified that Mission had timely paid its quarterly payroll taxes until the charged quarters, and

 that she repeatedly told Defendant that Mission’s payroll taxes were unpaid, warning him of the

 potential consequences of failing to pay them. See, e.g., ECF No. 291 at PageID.5273, 5276,

 5300–01, 5304–08, 5374. If credited, the jury could have concluded that Defendant was aware

 that Mission’s payroll taxes were not timely paid.4 The jury also heard testimony that

 Defendant’s companies lost money during the relevant years, see, e.g., ECF No. 293 at

 PageID.5693, and at times lacked sufficient funds to pay all of Mission’s expenses, see ECF No.


 4
   Defendant argues that it is impossible to credit Henke’s testimony that she told Defendant
 about the unpaid taxes and find willfulness on Counts 5 but not on Counts 1–4 and 6–8. See, e.g.,
 ECF No. 306 at PageID.6127. But as explained below, if the jury believed Henke that she told
 Defendant about the unpaid payroll taxes and emphasized—perhaps even mistakenly
 overemphasized—Mission’s perceived cashflow issues due to mismanaged books in the
 acquitted quarters and lack thereof in Q2 2015, it is more than possible.


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 291 at PageID.5277. And the jury heard recurring testimony—from, for example, Sue Hastings,

 the bookkeeper who replaced Henke—that Defendant could not timely pay the taxes during the

 relevant quarters due to Henke’s mismanagement and disorganization of Mission’s books. See,

 e.g., ECF Nos. 292 at PageID.5464, 5499, 5501–02, 5504; 302 at PageID.5838–46. Accepting

 both that Mission lost money and had cash flow issues, and that its books were mismanaged and

 incomplete, the jury could have concluded that he did not voluntarily refuse to timely pay the

 taxes for the quarters charged in Counts 1–4 and 6–8.

        But the jury could have reasonably distinguished Q2 2015. In April 2015, during Q2

 2015, Defendant sold two facilities to Aaron Kenyon and received $500,000 in available funds—

 a point both Parties emphasized numerous times in closing statements. See ECF No. 302 at

 PageID.5938, 5944, 5949, 5962, 5967; see also ECF No. 292 at PageID.5569–70. As a result, in

 the jury’s mind, with that amount of money, Defendant knew he could have timely paid the

 payroll taxes that he withheld from employees’ paychecks and intentionally did not, regardless of

 whether Mission’s books were mismanaged.

        And in any event, even if the jury’s verdicts were irreconcilably inconsistent, Defendant

 has not shown that either exception to the non-reviewability rule applies. First, Defendant has not

 shown that the jury’s verdicts “are marked by such inconsistency as to indicate arbitrariness or

 irrationality.” Lawrence, 555 F.3d at 263 (emphasis added). At most, Defendant has identified

 that the jury may have mistakenly overemphasized Defendant’s perceived ability when rendering

 its verdict, especially when, as Defendant notes, the Government presented “undisputed evidence

 that” Defendant “spent large sums of money on unnecessary expenses” during the relevant

 periods. See ECF No. 306 at PageID.6129–30. But this raises the very question underlying the

 non-reviewability rule: whose ox has been gored? After all, if the jury overemphasized




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 Defendant’s perceived inability to pay, the jury “is as likely to have erred in acquitting”

 Defendant on Counts 1–4 and 6–8 “as in convicting” Defendant of Count 5. Lawrence, 555 F.3d

 at 262 (citation modified). Second, Defendant does not argue that the verdicts are mutually

 exclusive, like when a jury convicts “a defendant of both larceny and embezzlement based on the

 same underlying conduct.” Ruiz, 386 F. App’x at 533. So Defendant’s inconsistency argument

 does not warrant upending the jury’s guilty verdict for Count 5.

        Finally, to the extent Defendant seeks a judgment of acquittal for Count 5 under Criminal

 Rule 29 for insufficient evidence, Defendant’s argument lacks merit. Viewing the evidence in the

 light most favorable to the jury’s verdict, there was sufficient evidence that Defendant willfully

 failed to pay his payroll taxes in Q2 2015. As explained, the jury heard Henke’s testimony that

 she repeatedly notified Defendant that Mission’s payroll taxes were unpaid during the relevant

 quarters, including Q2 2015, and that he told her not to pay them. See, e.g., ECF No. 291 at

 PageID.5273, 5276, 5300–01, 5304–08, 5374. And again, the jury learned that Defendant could

 pay those taxes because he received approximately $500,000 in available funds in April 2015,

 see, e.g., ECF Nos. 302 at PageID.5938, 5944, 5949, 5962, 5967; 292 at PageID.5569–70, to the

 extent that bears on willfulness under Blanchard. Accordingly, “a rational trier of fact could have

 found that” Defendant intentionally and voluntarily failed to pay Mission’s payroll taxes

 “beyond a reasonable doubt.” Brooks, 987 F.3d at 601.

        In sum, Defendant is not entitled to a new trial or judgment of acquittal for Count 5.

 Defendant has not demonstrated that Count 5’s guilty verdict is inconsistent with Counts 1–4 and

 6–8’s acquittals. Even if it were, Defendant has not shown that either exception to the non-

 reviewability rule applies. And viewing the evidence in the light most favorable to the jury’s

 verdict, there was sufficient evidence for a rational juror to find that Defendant willfully failed to




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 timely pay Mission’s payroll taxes.

                                         2. Counts 9 and 10

        Turning to Counts 9 and 10, which charged Defendant with failing to timely pay

 Mission’s payroll taxes for Q3 and Q4 2016. See ECF No. 296 at PageID.5772–73. As with

 Count 5, Defendant is not entitled to a judgment of acquittal or a new trial.

        Beginning with the judgment of acquittal analysis under Criminal Rule 29, the

 Government provided sufficient evidence to convict Defendant of Counts 9 and 10. Sue Hastings

 testified that shortly after starting in July 2016, she informed Defendant that Mission had unpaid

 payroll taxes. ECF No. 302 at PageID.5840–41. She further testified that Mission failed to pay

 its payroll taxes on time for Q3 and Q4 2016. Id. at PageID.5845–46, 5851–52. And Hastings

 confirmed that Defendant directed her not to pay the taxes timely, believing they could later

 claim tax credits.5 Id. at PageID.5861. Based on this testimony, “a rational trier of fact could

 have found that” Defendant willfully failed to pay Mission’s payroll taxes for these quarters.

 Brooks, 987 F.3d at 601.

        Nor has Defendant shown that a new trial is warranted under Criminal Rule 33.

 Defendant does not address whether, let alone demonstrate that, “the interests of justice so

 require,” FED. R. CRIM. P. 33(a), a new trial for these counts. And he has not established that the

 jury’s verdicts for Counts 9 and 10 “exceed[] the bounds of reasonableness[.]” Burks, 974 F.3d at

 5
   Like Count 5, to the extent ability to pay bears on willfulness for § 7202 offenses under
 Blanchard and the jury considered that for Count 9 and 10, Hastings’s explanation of why
 Defendant directed her not to pay the payroll taxes suggests cash flow and Mission’s books in
 Q2 and Q3 2016 were less decisive than in the acquitted quarters. After all, Hastings also
 testified that Mission received tax credits and requested refunds through retroactive amendments
 to prior tax filings. See, e.g., ECF No. 302 at PageID.5850. In this way, the jury could have
 concluded that Defendant should have paid the payroll taxes on time and requested a refund if
 Mission later received credits. And the jury could have reinforced the inference that the state of
 Mission’s books and cash flow did not meaningfully influence the decision not to timely pay Q3
 and Q4 2016 payroll taxes based on Mission’s timely payment of Q2 2016 payroll taxes when
 Henke completed them. See ECF No. 291 at PageID.5310–14.

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 625.

        In short, Defendant is not entitled to a judgment of acquittal or new trial for Counts 9 and

 10. There was sufficient evidence to convict Defendant of these counts. And Defendant has not

 demonstrated that the interests of justice warrant a new trial.

                    B. Failure to File Individual Tax Returns (Counts 11–14)

        Similarly, the Government needed to prove three elements for Counts 11 through 14—the

 counts charging Defendant with failing to file his individual tax returns under 26 U.S.C. § 7203

 from 2013–2016. Specifically, the Government needed to prove the following for each year’s

 charges: that Defendant (1) “was required to file a return”; (2) knew of this requirement and

 “failed to file a return” timely; and (3) acted willfully. United States v. Fusero, 106 F. Supp. 2d

 921, 927 (E.D. Mich. 2000); accord ECF No. 290 at PageID.5249. Defendant disputes only the

 second and third elements. See ECF Nos. 290 at PageID.5249; 301 at PageID.5820–21; 306 at

 PageID.6126. For the reasons explained below, Defendant is not entitled to relief under Criminal

 Rule 29 or 33 for his convictions for Counts 11 through 14.

        Begin with Criminal Rule 29: Defendant has not demonstrated that there was insufficient

 evidence to convict him of Counts 11 through 14. For starters, Joseph Wehner, a commercial

 lender who serviced one of Mission’s loans, testified that he requested Defendant’s individual

 tax returns and a personal financial statement as early as 2014 and testified that he did so each

 year—including through a letter in August of 2015—for the life of the loan. ECF No. 292 at

 PageID.5561–63. Wehner further testified that when he made such requests, Defendant told him

 that these personal returns were incomplete because he “just didn’t have all his information

 together” due to a bookkeeper issue. Id. at 5563–64. Based on this testimony alone, the jury had

 a rational basis for concluding that Defendant was aware of his obligation to file tax returns

 during the relevant period and that he had not timely filed them.


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        Wehner’s testimony, combined with other evidence, also supports the jury’s finding of

 willfulness.6 In addition to Wehner’s testimony, Brandi Pawlick—the RO responsible for

 attempting to collect Defendant’s unpaid and delinquent taxes—testified that she met with

 Defendant in June 2017 and discussed, among other things, his delinquent individual returns for

 2013, 2014, and 2015. See ECF No. 292 at PageID.5470–71, 5527, 5532. She also testified that

 she demanded full payment of these delinquent taxes by August 1, 2017. Id. at PageID.5470–71.

 Yet the jury also learned that, despite engaging professional assistance, Defendant did not file his

 returns until 2020. See id. at PageID.5581–90. As a result, Wehner’s testimony and Pawlick’s

 additional demands for Defendant’s tax filings in 2017, coupled with Defendant’s multi-year

 delay in actually filing his returns, provided more than a rational basis for the jury to conclude

 Defendant’s failure to timely file his returns was not a mistake—it was willful. So because “a

 rational trier of fact could have found that” Defendant willfully failed to timely file his individual

 tax returns for 2013 through 2016, Defendant is not entitled to a judgment of acquittal for Counts

 11 through 14. Brooks, 987 F.3d at 601.

        Turn to Criminal Rule 33: Defendant has not shown that the interests of justice require a

 new trial for Counts 11 through 14. Defendant argues that upholding Defendant’s convictions on

 Counts 11–14 would be a “manifest injustice.” ECF No. 301 at PageID.5820–29. To that end,

 Defendant seemingly argues that in opening statements the Government represented that

 Defendant’s mens rea arose in 2017 after he failed to meet Pawlick’s demand to pay his
 6
   Unlike the rule announced in Blanchard, which states that inability to pay payroll taxes bears
 on willfulness for § 7202 offenses, inability to timely pay is not a defense to failure-to-file
 personal returns under 26 U.S.C. § 7203. See United States v. Ausmus, 774 F.2d 722, 724–25
 (6th Cir. 1985); see also Blanchard, 618 F.3d at 572 (concluding that Ausmus’s rule for § 7203 is
 distinguishable from § 7202 offenses but finding that it supports not announcing an affirmative
 rule that § 7202 requires proof of ability to pay, rather than “a defendant’s inability to pay”
 merely bearing on willfulness for § 7202 offenses). After all, individual taxpayers are “obligated
 to conduct [their] financial affairs in such a way that [they] [have] cash available to satisfy [their]
 tax obligations on time.” Ausmus, 774 F.2d at 724.


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 delinquent taxes by August 1, 2017, improperly suggesting that Defendant’s mens rea need not

 be concurrent with his failure to timely file his tax returns, some of which needed to be filed well

 before 2017. See id. He further supports this argument by noting that Pawlick testified that

 Defendant’s delinquency was a civil matter until he failed to meet her deadline, after which point

 it became a criminal case. Id. at PageID.5825. This argument misses the mark.

        Neither the Government nor Pawlick claimed that Defendant’s mens rea need not

 coincide with his failure to timely file. Nor did they suggest his criminal intent arose from

 missing Pawlick’s August 1, 2017 deadline. Rather, Pawlick merely testified that at some point

 after Defendant missed that demand deadline, the IRS began treating the case as a criminal

 matter and investigating it as such, a decision in which she played no role. See, e.g., ECF No.

 292 at PageID.5484–85, 5535–37, 5557. And, in context, the Government’s opening statement

 represented the same. See ECF No. 294 at PageID.5765.

        Finally, Defendant argues that it was financially impossible to meet Pawlick’s short

 deadline, so it would be manifestly unjust to uphold his conviction because only “the wealthiest

 Americans” could avoid criminal liability in these circumstances. ECF No. 301 at PageID.5827–

 29. This argument is unpersuasive. First, August 1, 2017, was not the legal deadline for filing his

 individual tax returns; it was the deadline for paying delinquent taxes. So anyone—not just “the

 wealthiest Americans”—can avoid criminal liability by filing individual tax returns before their

 actual legal deadline. Second, and relatedly, this argument assumes that his criminal liability

 arose from missing Pawlick’s August 1, 2017 deadline. As explained, that is a mistaken

 assumption. Third, even if his criminal intent arose from missing that deadline rather than the

 legal deadline, unlike for § 7202 offenses, Defendant’s financial inability does not bear on

 willfulness and is in no way a defense to § 7203 charges. See supra n.6. And granting Defendant




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 a new trial based on financial impossibility would effectively render it a viable defense to § 7203

 charges. As a result, none of Defendant’s “manifest injustice” arguments for a new trial warrant

 a new trial under Criminal Rule 33.

        In sum, Defendant is not entitled to a new trial or judgment of acquittal for Counts 11

 through 14. Accordingly, Defendant is not entitled to a new trial or judgment of acquittal on any

 of the counts for which he was convicted. So Defendant’s Motion for Judgment of Acquittal or

 New Trial, ECF No. 301, will be denied.

                                                IV.

        Accordingly, it is ORDERED that Defendant’s Motion for Judgment of Acquittal or

 New Trial, ECF No. 301, is DENIED.

                This is not a final order and does not close the above-captioned case.

                Dated: July 29, 2025                         s/Thomas L. Ludington
                                                             THOMAS L. LUDINGTON
                                                             United States District Judge




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