Court filing

Opinion and Order Sustaining in Part and Denying in Part Defendant’s Objection to Presentence Report Concerning Fraud Loss — United States v. Thrush (Dkt. 353, E.D. Mich.)

Summary

In this July 13, 2026 opinion and order, Judge Robert J. White of the Eastern District of Michigan ruled on Dale Vernon Thrush's remaining objections to the fraud-loss figure in his Presentence Investigation Report. Thrush was convicted in December 2024 of wire fraud for misrepresentations on a government loan application, and later of charges for failing to pay payroll taxes and file individual tax returns. After his indictment he applied for a $121,060 PPP loan, and he or his wife received $2,044,600 in EIDL loans through six EIDL-loan modifications. The court found the Government had not shown an actual or intended loss from the relevant modifications, sustaining Objections 11 and 13 in part and overruling them in part. It denied his motions to unseal grand jury materials and to adjourn sentencing, and set July 17, 2026 for sentencing memorandums.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Filed July 13, 2026 in Dale Vernon Thrush; one of 5 filings from this case.

Record facts

Court	U.S. District Court for the Eastern District of Michigan
Filed	2026-07-13

Cite this document

“Opinion and Order Sustaining in Part and Denying in Part Defendant’s Objection to Presentence Report Concerning Fraud Loss — United States v. Thrush (Dkt. 353, E.D. Mich.).” U.S. District Court for the Eastern District of Michigan, No. 1:20-cr-20365, Doc. 353, filed 2026-07-13. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-dale-vernon-thrush/2026-07-13-opinion-and-order-sustaining-in-part-and-denying-in-part-def-dkt-353/, SHA-256 e3b7f07177e0a4590c2f1986196a3031d884e419dbfb21fb7931cd8409603c0a.

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Case 1:20-cr-20365-RJW-PTM ECF No. 353, PageID.9871 Filed 07/13/26 Page 1 of 27

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
Case No. 20-cr-20365
v.
Honorable Robert J. White
DALE VERNON THRUSH,

Defendant.

OPINION AND ORDER SUSTAINING IN PART AND DENYING IN PART
DEFENDANT’S OBJECTION TO PRESENTENCE REPORT
CONCERNING FRAUD LOSS, DENYING DEFENDANT’S MOTION TO
UNSEAL GRAND JURY MATERIALS (ECF NO. 345), DENYING
DEFENDANT’S MOTION TO ADJOURN SENTENCING (ECF NO. 348),
AND DENYING DEFENDANT’S MOTION TO CONTINUE THE
EVIDENTIARY HEARING AS MOOT (ECF NO. 334)

In December 2024, Defendant Dale Thrush was convicted of wire fraud for

including misrepresentations on a government loan application. He was later

convicted of several other charges for failing to pay payroll taxes and file

individual tax returns in a timely manner. In advance of sentencing, he objected to

several aspects of his Presentence Investigation Report (PSR). Many objections

were resolved, but the Court directed supplemental briefing on those related to

Thrush’s total fraud-loss calculation. The Court then held an evidentiary hearing

on those objections, notwithstanding Thrush’s motion to adjourn it. Afterward,

Case 1:20-cr-20365-RJW-PTM ECF No. 353, PageID.9872 Filed 07/13/26 Page 2 of 27

Thrush moved to adjourn the sentencing hearing and to unseal grand jury

materials, which he contends are necessary to support a post-conviction motion to

dismiss the indictment.

As explained below, Thrush’s outstanding objections concerning fraud-loss

will be sustained in part and overruled in part. Further, his motions to unseal grand

jury materials and adjourn sentencing will be denied. Finally, his motion to

continue the already conducted evidentiary hearing will be denied as moot.

The Court recited the facts of this case in its November 21, 2025, Opinion

and Order resolving sentencing objections, ECF No. 327, and repeats only the facts

necessary to resolve the remaining issues.

Thrush owned and operated several small businesses located in mid-

Michigan. Thus, he was responsible for withholding and paying payroll taxes to

the Internal Revenue Service (IRS). Although he withheld those taxes from

employees’ paychecks, he failed to remit them timely during several quarters

between 2014 and 2016. He also did not timely file his personal income tax returns

for four years. As a result, in August 2020, the Government charged Thrush in a

14-count indictment for failing to (1) pay employment taxes, and (2) file individual

returns.

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On September 2, 2020, having retained counsel, Thrush self-surrendered to

the United States Marshals for booking. He then appeared before Magistrate David

R. Grand for his arraignment. ECF No. 9. There, Thrush acknowledged his

Indictment, ECF No. 10, and Judge Grand released him from custody on bond,

subject to several conditions. ECF No. 11. One of these conditions barred Trush

from “apply[ing] for or enter[ing] into any loan or other credit transaction without

the previous written permission of the pretrial services office or supervising

officer.” Id. at PageID.26.

Importantly, this case arose during the COVID-19 pandemic. During that

time, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act

(CARES Act), Pub. L. 116-136. United States v. Prather, 138 F.4th 963, 967 (6th

Cir. 2025). Among other things, the CARES Act created emergency loan programs

for businesses to alleviate economic hardship flowing from the pandemic. Id. Two

programs are relevant here.

First, these loan programs included the Paycheck Protection Program (PPP).

Id. The PPP offered loans to eligible small businesses, allowing them to use the

funds for employee compensation and other financial obligations. Id. Congress

determined that private lenders would underwrite and issue these PPP loans, while

the United States Small Business Administration (SBA) guaranteed them. Id. If a

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business “spent the funds appropriately, the loans could be fully forgiven.” Id.

Second, the programs included expanding eligibility for participation in an

existing government-sponsored program, the Economic Injury Disaster Loans

program (EIDL), initially created in the 1950s. See SMALL BUSINESS ACT OF 1953,

Pub. L. 83-163, § 207, 67 Stat. 232, 235–36 (1953); see also Small Bus. Admin. v.

McClellan, 364 U.S. 446, 447 (1960); Prather, 138 F.4th at 967. Like PPP loans,

pandemic-driven EIDL loans provided emergency financial assistance for business

expenses. Prather, 138 F.4th at 967. But unlike PPP loans, “EIDL loans were

funded by the federal government, not private institutions, and had to be repaid.”

Id.

With that context in mind, during the pandemic, Thrush obtained both PPP

loans and EIDL loans for his companies. Before he was indicted in April 2020,

Thrush applied for and received a $110,000 PPP loan for his payroll company, 402

N Mission (“Mission”). Also before he was indicted, Thrush applied for and

received several EIDL loans for three of his businesses.

But more importantly than the loans that predated his Indictment, Thrush

applied for such loans after the Government indicted him. On February 3, 2021,

Defendant applied for a $121,060 PPP loan for Mission. Thrush, 2025 WL

1904425, at *5. In so doing, he certified that he was not “presently subject to an

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indictment.” Id. at *2. That PPP loan was later forgiven. Id. at *6.

Similarly, from July 19, 2021, to February 18, 2022, Thrush or his wife

applied for and later received $2,044,600 in EIDL loans through six EIDL-loan

modifications. Resembling his certifications to secure the PPP loan, in all but one

of those EIDL loan-modification applications, he certified that there “had been no

substantial adverse change” in the borrower’s “financial condition,” including, but

“not limited to: judgment liens, tax liens, mechanic’s liens, bankruptcy, financial

reverses, arrest or conviction of felony, etc.” E.g., ECF No. 342-10, PageID.8809.

Those loan modifications were fully collateralized and not forgiven because, again,

the EIDL program does not offer loan forgiveness. See Prather, 138 F.4th at 967.

The following bulleted timeline helps to understand the specific events

relevant to these loans:

• First Set of COVID-19 Relief Loans (Pre-Indictment): April
2020–June 2020
o April 2020 – Thrush applied for and obtained the first PPP loan for
one of his companies, Mission, totaling $110,000.
o June 2020 – A $150,000 EIDL loan was obtained for Thrush’s Pit
Stop, LLC (“Thrush’s Pit Stop”) by Thrush’s wife, who was
identified as the 100% owner of Thrush’s Pit Stop. ECF No. 342-
12.
o June 2020 – Thrush obtained $150,000 EIDL loans for three of his
companies—Xtreme Enterprises Inc. (“Xtreme”), Verno All Tune,
Inc. (“Verno”), and Mission—totaling $450,000. ECF Nos. 342-5;
342-6; 342-9.

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• Indictment, Arrest Warrant, and Arraignment: August 2020–
September 2020
o August 19, 2020 – The Government filed a fourteen-count
Indictment against Thrush for tax-related crimes, some of which
were felonies. ECF No. 1.
o August 19, 2020 – Warrant issued for Thrush’s arrest. ECF No. 2.
o September 2, 2020 – Thrush self-surrendered and appeared for his
arraignment, acknowledging his Indictment. Thrush was released
on bond.
• Second Set of COVID-19 Relief Loans/Loan Modifications and
PPP Loan Forgiveness (Post-Indictment): February 2021–
February 2022
o February 3, 2021 – Thrush applied for and received a second PPP
loan for Mission, which totaled $121,060.
o July 19, 2021 – Preindictment PPP loan forgiven.
o July 19, 2021 – Thrush’s Pit Stop applied for and secured a
$350,000 EIDL loan modification. As with the initial EIDL loan
for Thrush’s Pit Stop, Defendant’s wife, listed as the 100% owner
of Thrush’s Pit Stop, was the sole signatory on this EIDL loan
modification application. The SBA distributed the funds for this
loan modification on August 1, 2021. ECF No. 342-13.
o July 21, 2021 – Thrush obtained a $350,000 EIDL loan
modification for Xtreme. ECF No. 342-7.
o August 9, 2021 – Thrush obtained a $350,000 EIDL loan
modification for Verno. ECF No. 342-10.
o September 27, 2021 – Post-indictment PPP loan forgiven.
o December 25, 2021 – Thrush obtained a $387,400 EIDL loan
modification for Verno. ECF No. 342-11.
o February 12, 2022 – Thrush obtained a $311,900 EIDL loan
modification for Xtreme. ECF No. 342-8.
o February 18, 2022 – Thrush’s Pit Stop obtained a $295,300 EIDL
loan modification. For this loan modification, as with the other
EIDL loans and loan modifications, Thrush’s wife initially sought

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to be the sole signatory. See ECF No. 309-3, PageID.6378. But the
SBA twice denied this loan modification application for a “[l]ack
of repayment ability.” Id. at PageID.6375, 6377. After that,
Thrush’s wife added him to the application to include his income
and financial net worth for repayment purposes. As a result,
Thrush was also a signatory on this loan modification application
and signed it as an “Officer/Owner.” ECF No. 342-14,
PageID.8905. The SBA granted the loan modification once Thrush
signed.

Shifting back to this case’s procedural development, after several

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

2021, one of the first efforts to resume trials as the pandemic waned. Following a

mistrial, appeal, and superseding indictment, the Government added, among other

charges, a count of wire fraud under 18 U.S.C. § 1343. ECF No. 118,

PageID.2138–41. That charge was based on Thrush’s representation that he was

not “presently subject to an indictment” when he applied for the post-indictment

PPP loan that was later forgiven. It did not, however, contemplate the post-

indictment EIDL-loan modifications obtained in a similar fashion.

The Court severed the wire fraud count from the original tax counts due to

their subject-matter differences. Trials followed. In December 2024, Thrush was

tried and convicted of wire fraud. Then, from late February to early March 2025,

he was tried for the tax charges. The jury returned a split verdict on March 5, 2025.

It convicted Thrush of seven counts, Counts 5, 9, 10, 11, 12, 13, and 14. But it also

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acquitted him of seven counts, Counts 1, 2, 3, 4, 6, 7, and 8.

Notably, after his convictions, Thrush’s EIDL loans came into focus. From

2022 to June 2025, he made the monthly payments on those loans. See ECF Nos.

342-15, PageID.8925–28; 342-16, PageID.8936–39; 342-18, PageID.8957–60. But

when he learned that the EIDL loan modifications could affect his sentence, from

July through August 2025, Thrush repaid the modification amounts for Verno,

Xtreme, and Thrush’s Pit Stop in full. ECF Nos. 342-15, PageID.8928; 342-16,

PageID.8939; 342-18, PageID.8960.

In advance of sentencing, a PSR was prepared. Based on Thrush’s

convictions, the PSR included an offense-level computation to determine a

sentencing guideline range. For his tax-count convictions, titled Count Group 1,

the PSR reflects an offense level of 14. For his wire fraud conviction, titled Count

Group 2, the PSR reflects an offense level of 30. Based on these two count groups,

the PSR reflects a combined adjusted offense level of 30, yielding a sentencing

guideline range of 97 to 121 months’ imprisonment.

That combined offense level is principally driven by the fraud-loss

calculation for Thrush’s wire fraud offense. On that score, the PSR viewed the

$2,044,600 in post-indictment EIDL loan modifications obtained by Thrush or his

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wife as relevant conduct. It therefore included them in its total loss calculation,

resulting in a 16-level enhancement to Thrush’s wire fraud offense level.

Thrush lodged 17 objections to the PSR. The assigned Probation Officer

resolved several of the objections, many of which did not affect Thrush’s guideline

range. Still, five categories—all related to Thrush’s wire fraud conviction—

required factual or legal resolution. See FED. R. CRIM. P. 32(i)(3)(B). The Court

resolved almost all those outstanding objections on November 21, 2025. ECF No.

327. But it directed supplemental briefing and conducted an evidentiary hearing on

objections to the PSR’s fraud-loss calculation to assess whether the EIDL loan

modifications should be included in that total. Those objections remain unresolved.

On May 26, 2026, following the fraud-loss evidentiary hearing, Thrush

moved under Federal Criminal Rule of Procedure 6(e)(3)(E)(ii) to unseal grand

jury information and other sealed documents in this case and multiple other cases.

ECF No. 345. He also moved to adjourn the sentencing hearing pending resolution

of those issues. ECF No. 348.

II.

Begin with the unresolved sentencing objections. The PSR concludes that,

although the Government did not charge Thrush for the EIDL loans, those loans

nevertheless constitute “relevant conduct” under U.S.S.G. § 1B1.3(a)(2). The PSR

reasons that they were obtained “as part of the same course of conduct or common

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Case 1:20-cr-20365-RJW-PTM ECF No. 353, PageID.9880 Filed 07/13/26 Page 10 of 27

scheme as the” PPP loan underlying Thrush’s wire fraud conviction. On that front,

when Thrush applied for the $2,044,600 in EIDL loan modifications after being

indicted, booked, and arraigned, he certified that there had “been no substantial

adverse change in” the borrower’s “financial condition,” including “arrest or

conviction of felony, etc.” See, e.g., ECF No. 309-1 at PageID.6245. So the PSR

finds that he materially misrepresented his status to secure COVID-19 relief funds

for his businesses that he otherwise would not have received. See ECF No. 319,

PageID.7185. That alleged misrepresentation, the PSR notes, closely resembles the

one made on the PPP loan application underlying his conviction—namely, that he

was not “presently subject to an indictment”—just months earlier. See id.

But Thrush disputes this conclusion. See, e.g., ECF No. 314. He maintains

that the EIDL loans are not relevant conduct because his self-surrender does not

constitute an “arrest” and that the PPP and EIDL loans differ in structure due to

collateral requirements and eligibility for forgiveness. See ECF No. 319,

PageID.7183. He also maintains that the EIDL loan modifications for Thrush’s Pit

Stop are “particularly concerning” because he “neither applied for [the loans] nor

was an owner in” Thrush’s Pit Stop. Id. at PageID.7180. And Thrush asserts that

even if the EIDL loan modifications were relevant conduct, he intended to repay

them and did later repay them, rendering them ineligible for inclusion in the loss

calculation. ECF No. 314, PageID.6585–602.

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Case 1:20-cr-20365-RJW-PTM ECF No. 353, PageID.9881 Filed 07/13/26 Page 11 of 27

This dispute presents two general inquiries. First, whether Thrush’s EIDL

loan modifications are, in fact, relevant conduct. Second, if so, whether the loss

calculation supporting the 16-point enhancement is accurate. These inquiries are

addressed below in turn.

To begin, most EIDL loan modifications constitute relevant conduct under

U.S.S.G. § 1B1.3.

At sentencing, when determining a crime’s offense level, courts must

consider all “relevant conduct” as defined by U.S.S.G. § 1B1.3. United States v.

Knipp, 138 F.4th 429, 437 (6th Cir. 2025). So long as it satisfies one of § 1B1.3’s

definitions, a court can “consider conduct that was charged, uncharged, dismissed,

or even acquitted,” United States v. Parkey, 142 F.4th 866, 872, n.1 (6th Cir.

2025), if, as a threshold matter, that conduct “is criminal in nature,” United States

v. Henry, 819 F.3d 856, 865 (6th Cir. 2016). And the court needs only to find that

the government proved as much by a preponderance of the evidence. Parkey, 142

F.4th at 872, n.1. This holds true even in “exceptional situations where the

sentencing factor has a disproportionate effect on the sentence relative to the

offense of conviction.” United States v. Mayle, 334 F.3d 552, 557 (6th Cir. 2003)

(citing United States v. Graham, 275 F.3d 490, 517, n.19 (6th Cir. 2001)).

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There are two general categories of relevant conduct defined in § 1B1.3.

First, § 1B1.3(a)(1) outlines a narrow category of conduct relevant for sentencing

that is taken “during the commission of the offense of conviction, in preparation

for that offense, or in the course of attempting to avoid detection or responsibility

for that offense.” Second, key here, § 1B1.3(a)(2) delineates a broader category of

conduct that, where applicable, “encompasses acts that were ‘part of’” (1) “‘the

same course of conduct,’” or (2) a “‘common scheme or plan as the offense of

conviction.’” Knipp, 138 F.4th at 437 (quoting U.S.S.G. § 1B1.3(a)(2)); see also

United States v. Erwin, 67 F. App’x 876, 880 (6th Cir. 2003) (applying §

1B1.3(a)(2) to grouped wire and mail fraud offenses under U.S.S.G. § 3D1.2(d)).1

Drilling down one more layer, the Guidelines define “same course of

conduct” and “common scheme or plan.” An offense is part of the “same course of

conduct” depending on three factors: “the degree of similarity of the offenses, the

regularity (repetitions) of the offenses, and the time interval between the offenses.”

U.S.S.G. § 1B1.3(a)(2) cmt. n.5(B)(ii); United States v. Brown, 131 F.4th 337, 347,

n.2 (6th Cir. 2025). To separately qualify as a “common scheme or plan,” the

relevant events must “be substantially connected to each other by at least one

1
Notably, the “same course of conduct” category and the “common scheme or
plan” category are disjunctive, so the acts at issue need only to fall within one of
the two categories. See United States v. West, 962 F.3d 183, 189 (6th Cir. 2020);
see also A. Scalia & B. Garner, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 116 (2012).

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common factor, such as common victims, common accomplices, common purpose,

or similar modus operandi.” Id. § 1B1.3(a)(2) cmt. n.5(B)(i). In the end, “common

scheme or plan” presents a low bar for acts to constitute relevant conduct. See

United States v. McCloud, 935 F.3d 527, 532 (6th Cir. 2019).

Here, the Government has cleared that low bar for most of the EIDL loan

modifications. By a preponderance of the evidence, it has shown that five of the

modifications—the four that Thrush obtained for Verno and Xtreme and the one he

co-signed for Thrush’s Pit Stop—constitute relevant conduct.

The Government has established that Thrush’s certifications for those five

loan modifications were criminal in nature, satisfying its threshold obligation.

After Thrush had been indicted on felony charges, booked, arraigned, and released

on bond subject to restrictions on obtaining credit without prior approval from

pretrial services, he certified that the companies seeking the loan modifications had

not experienced a substantial adverse change in their financial condition resulting

from a change in legal status. E.g., ECF No. 342-10, PageID.8809, 8811. That

certification was false. Thrush owned Verno and Xtreme, personally guaranteed

each of their loan modifications, and likewise co-signed one modification for

Thrush’s Pit Stop. The bond conditions therefore directly impaired the companies’

ability to obtain financing by restricting the ability of their sole owner and personal

guarantor to obtain additional credit. Yet Thrush submitted the certifications to

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induce the SBA to approve the requested modifications. See id. at PageID.8810.

On this record, the Government has shown by a preponderance of the evidence that

the misrepresentations were material and were made as part of a scheme to

fraudulently obtain money from the SBA, thereby constituting conduct of a

criminal nature. See Kousisis v. United States, 605 U.S. 114, 122-28 (2025).

Thrush’s arguments to the contrary do not carry the day. He first contends

that the certification concerned only the borrower—the corporate entity seeking the

loan modification—not its owner or officer. ECF No. 328, PageID.7364-66. But on

this record, that distinction is illusory. Again, because Thrush was the sole owner

of Verno and Xtreme and personally guaranteed the four loan modifications for

those companies and one of Thrush’s Pit Stop’s loan modifications, his court-

imposed credit restrictions bore directly on the companies’ ability to secure

financing. Indeed, Thrush acknowledged those restrictions when he agreed to

comply with his bond conditions. ECF No. 11, PageID.28. And his wife testified

that obtaining credit became more difficult after his indictment. ECF No. 352,

PageID.9816. Put simply, the record reveals that Thrush’s credit restrictions were

economically inseparable from the companies’ borrowing capacity—and he knew

it.

Thrush also contends that because he was never handcuffed and was

unaware of his arrest warrant when he self-surrendered to authorities, he did not

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know that he had been arrested. In his view, this undermines a finding that he

knowingly misrepresented that there “had been no substantial adverse change” in

the borrower’s “financial condition,” including, but “not limited to: . . . arrest or

conviction of felony, etc.” ECF No. 328, PageID.7371-72. But whether he thought

he was arrested is not the relevant inquiry. The ultimate thrust of the relevant loan

modification certification is whether the borrower has experienced a substantial

adverse change in financial condition resulting, among other things, from a change

in legal status due to criminal proceedings. See, e.g., ECF No. 342-10,

PageID.8809. Arrest and conviction for a felony were listed merely as examples of

that change in legal status, as evidenced by the certification using to “include, but .

. . not limited to” and “etc.” And, more to the point, given Thrush’s prior

experience with PPP loan applications and corresponding fraud, his evasive,

hairsplitting testimony that he did not understand his certification to be false, see

ECF No. 352, PageID.9818-63, lacked credibility.

Next, the Government has established by a preponderance of the evidence

that those five EIDL loan modifications were part of a “common scheme or plan”

with the PPP loan underlying Thrush’s wire-fraud conviction. The offenses were

substantially connected by at least three common factors: (1) a common victim (the

SBA); (2) a common purpose (to obtain pandemic-relief funds); and (3) a similar

modus operandi (concealing the legal consequences of his federal criminal

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proceedings by submitting materially false certifications on loan applications).

Because these common factors substantially connected those offenses, they formed

part of a common scheme or plan. McCloud, 935 F.3d at 532. And because the

Government has also shown that the conduct was criminal in nature, the five EIDL

loan modifications constitute relevant conduct under U.S.S.G. § 1B1.3(a)(2). So

Thrush’s objections will be overruled to the extent they argue that those loan

modifications are not relevant conduct.

Even so, one EIDL loan modification—the first obtained for Thrush’s Pit

Stop by Thrush’s wife, who was the sole signatory on the application—is not

relevant conduct. Thrush took no part in securing that modification, so he did not

falsely certify anything. Thus, the preponderance of the evidence does not establish

that Thrush engaged in criminal conduct in connection with that loan modification.

Thrush’s objection therefore will be sustained insofar as he argues that the first

Thrush’s Pit Stop loan modification is not relevant conduct.

For clarity, the following chart specifies which loan modifications constitute

relevant conduct:

Relevant
Entity Loan Number Date Amount
Conduct?
Thrush’s Pit 9934797906 (First
7/19/2021 $350,000 No
Stop Modification)
9823087902 (First
Xtreme 7/21/2021 $350,000 Yes
Modification)

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Case 1:20-cr-20365-RJW-PTM ECF No. 353, PageID.9887 Filed 07/13/26 Page 17 of 27

9841137908 (First
Verno 8/9/2021 $350,000 Yes
Modification)
9841137908
Verno (Second 12/25/2021 $387,400 Yes
Modification)
9823087902
Xtreme (Second 2/12/2022 $311,900 Yes
Modification)
9934797906
Thrush’s Pit
(Second 2/18/2022 $295,300 Yes
Stop
Modification)

Having determined that most of the EIDL loan modifications are relevant

conduct, the inquiry shifts to how they affect the offense level and loss calculation,

if at all. As a first principle, fraud does not necessarily result in net pecuniary

harm. See Kousisis, 605 U.S. at 124. That possibility is especially true in cases

involving collateralized loans, a reality courts have recognized for centuries. See,

e.g., State v. Palmer, 50 Kan. 318, 32 P. 29, 30 (1893) (observing that, “[t]hough

money [may be] obtained by misrepresentation,” in this context, “no injury [may]

follow”). For the reasons explained below, that reality is present here: the

Government has not shown an actual or intended loss stemming from the relevant

EIDL loan modifications. They therefore do not enhance the fraud-loss calculation.

For background, begin with Thrush’s base offense level calculation. Under

U.S.S.G. § 2B1.1(a)(1)(B), offenses that possess a “statutory maximum term of

imprisonment of 20 years or more” yield a base level offense of 7. Thrush’s wire

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fraud conviction under 18 U.S.C. § 1343 carries a maximum penalty of 20 years in

prison. Thus, Defendant’s base offense level for his wire fraud conviction is 7, as

the PSR reflects. ECF No. 319, PageID.7154. That much is undisputed.

Moving to the disputed calculation: the loss calculation. The loss calculation

is a specific offense characteristic that largely drives the total offense level for

financial fraud crimes. See U.S.S.G. § 2B1.1(b)(1). To that end, the Guidelines

provide that, in fraud cases, a district court must adjust a defendant’s offense level

to reflect the amount of “loss” attributable to the offense and relevant conduct. Id.

§ 2B1.1(b)(1). For example, a defendant responsible for more than $95,000 in

losses faces an 8-level increase. Id. § 2B1.1(b)(1)(E). A defendant responsible for

more than $550,000 in losses faces a 14-level increase. Id. § 2B1.1(b)(1)(H). And

one whose conduct caused more than $1,500,000 in losses faces a 16-level

increase. Id. § 2B1.1(b)(1)(I). The point is that the enhancement increases with the

magnitude of the loss, ranging from $6,500 or less to more than $550,000,000. See

id. § 2B1.1(b)(1). Conceptually, “[t]hat’s the easy part.” United States v. Kozerski,

969 F.3d 310, 312 (6th Cir. 2020).

But calculating the “‘loss’ can be harder.” Id. When calculating loss, a court

cannot engage in guesswork. United States v. Roberts, 919 F.3d 980, 988–89 (6th

Cir. 2019). Rather, when a defendant contests the loss calculation in cases

involving financial crimes, courts must “reasonably estimate the loss,” “explain

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their calculation methods,” and ensure that the defendant’s sentence is based on

“accurate information.” Id. at 988 (citation modified). Moreover, the government

bears the burden of establishing the total loss by a preponderance of the evidence.

United States v. Hills, 27 F.4th 1155, 1195 (6th Cir. 2022) (citing United States v.

Jones, 641 F.3d 706, 712 (6th Cir. 2011)).

Against that backdrop, the Guidelines define “loss.” Under the Guidelines,

loss is the “greater of the actual loss or intended loss.” U.S.S.G. § 2B1.1(b)(1)(A).

Actual loss means “the reasonably foreseeable pecuniary harm that resulted from

the offense.” Id. § 2B1.1(b)(1)(C)(i). By contrast, intended loss means the

“pecuniary loss that the defendant purposely sought to inflict” and includes

“intended pecuniary harm that would have been impossible or unlikely to occur.”

Id. § 2B1.1(b)(1)(C)(ii).

As for intended loss, on balance, the record does not support that Thrush

purposely sought to inflict any pecuniary harm. For “loan-related fraud, ‘intended

loss is the amount the defendant subjectively intended not to repay.’” United States

v. Kraus, 656 F. App’x 736, 739–40 (6th Cir. 2016) (quoting United States v.

Moored, 38 F.3d 1419, 1426 (6th Cir. 1994)). Nothing here suggests that Thrush

intended to skirt repaying the EIDL loan modifications. They were fully

collateralized, with no indication that Thrush sought to thwart efforts to recover

that collateral. Cf. United States v. Calkins, 193 F. App’x 417, 421 (6th Cir. 2006)

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(“[A] court may decline to reduce the intended loss by the collateral pledged where

the district court finds that the defendant intended to deprive the lender of its

collateral.”). Further, for years, Thrush made hundreds of thousands of dollars in

monthly payments on the loans, which were not forgivable loans.2

As for actual loss, the record likewise does not, by a preponderance of the

evidence, reflect that the EIDL loan modifications caused actual pecuniary harm.

Thrush has repaid the modification amounts in full. True, he did not fully repay

them until July and August 2025, when he learned that the Government intended to

use them at sentencing. Usually, that would mean the Court could not consider the

July and August payments because the actual loss would be the value of the loan

less “the amount of any repayment made by defendant prior to the discovery of the

fraud.” Moored, 38 F.3d at 1427 (emphasis added); see also U.S.S.G. § 2B1.1 cmt.

n.3(D)(i). However, because this is a “case of a false loan application” with a fully

collateralized loan, the Court must further “reduce the amount of loss by the

amount recovered” before sentencing. United States v. Quigley, 382 F.3d 617, 622

(6th Cir. 2004); see also U.S.S.G. § 2B1.1 cmt. n.3(D)(ii). As a result, there is no

actual loss arising from Thrush’s likely fraudulent EIDL loan certifications.

2
Before July 2025, when he contends that he was first notified that the
Government would seek to use EIDL loan modifications at sentencing, Thrush had
repaid approximately $398,883. See ECF No. 328, PageID.7377.

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The Government’s position does not change the analysis. It argues that the

full value of the EIDL loan modifications constitutes actual loss because the SBA’s

disbursement of those funds prevented other eligible applicants from receiving

them. See ECF No. 329, PageID.8290. But whatever effects the disbursements may

have had on other prospective borrowers, those applicants possessed no cognizable

financial interest in undistributed SBA funds while those monies remained in the

SBA’s possession. See Cleveland v. United States, 531 U.S. 12, 23–24 (2000).

Accordingly, any pecuniary loss resulting from the loan modifications fell, if at all,

upon the SBA—the entity that owned and disbursed the funds and that the

Government has identified as the victim—not upon unidentified prospective

applicants. And so because the SBA has recovered the full amount of the loan

modifications before sentencing, the actual loss attributable to those transactions is

zero. Accord United States v. Chichy, 1 F.3d 1501, 1511 (6th Cir. 1993) (declining

to assess the “face value of the total amount of the” government “loan proceeds” as

the actual loss total).3

3
Initially, the Government relied on a special rule in the guidelines commentary
entitled the “government benefits” rule, which provides that “in cases involving
government benefits (e.g., grants, loans, entitlement program payments), loss shall
be considered to be not less than the value of the benefits by unintended
recipients.” U.S.S.G. § 2B1.1 cmt. n.3(E)(ii). But at the evidentiary hearing, the
Government conceded that, because the rule appears in the Guidelines’
commentary, the Guidelines’ definition of loss must be ambiguous before this
Court applies the government-benefits rule. See ECF No. 352, PageID.9810-11;
see also United States v. Riccardi, 989 F.3d 476, 486-89 (6th Cir. 2021). The

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All in all, the Government has not met its burden in showing, by a

preponderance of the evidence, that the relevant EIDL loan modifications caused

actual or intended loss. The total fraud-loss calculation therefore is limited to the

loss from the forgiven PPP loan underlying Thrush’s wire fraud conviction,

totaling $121,060. Accordingly, Thrush’s objections to the PSR will be sustained

to the extent they argue that the relevant post-indictment EIDL loan modifications

do not affect the fraud-loss calculation.

III.

Turn next to Thrush’s motion to unseal the grand jury materials. He invokes

Federal Rule of Criminal Procedure 6(e)(3)(E)(ii), arguing that disclosure is

necessary to prepare a motion to dismiss the indictment for prosecutorial

misconduct. According to Thrush, the Government told the grand jury that he used

PPP loan proceeds for personal expenses, while omitting that he had spent amounts

exceeding the PPP loan proceeds on payroll and other authorized business

expenses. ECF No. 345, PageID.9547. He contends that those alleged

misrepresentations and omissions unfairly portrayed his conduct and led the grand

jury to return an indictment on a theory that differed from the one the Government

ultimately advanced at trial. Id. at PageID.9549. Thrush points to other

Government also conceded that it did not consider the Guidelines’ definition of
loss to be ambiguous. ECF No. 352, PageID.9810-11. So this Court need not apply
the government-benefits rule.

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prosecutions handled by the same Assistant United States Attorney that led to the

dismissal of an indictment or stipulations to set aside convictions after

prosecutorial misconduct in grand jury proceedings was alleged. On that basis, he

seeks disclosure of the grand jury materials in this case, as well as records from

those other proceedings.

The “the proper functioning of our grand jury system depends upon the

secrecy of grand jury proceedings.” Douglas Oil Co. of California v. Petrol Stops

Nw., 441 U.S. 211, 218 (1979). Thus, there are few, narrow exceptions to that

secrecy rule. See Fed. R. Crim. P. 6(e)(3). One such exception, which Trush

invokes here, allows disclosure of grand jury materials when a defendant “shows

that a ground may exist to dismiss the indictment because of a matter that occurred

before the grand jury.” Fed. R. Crim. P. 6(e)(3)(E)(ii). But Thrush has not satisfied

that exception: his motion to unseal fails for two independent reasons.

First, Thrush’s conviction undermines his prospective motion to dismiss. A

post-conviction motion to dismiss based on “prosecutorial misconduct before

the grand jury” lacks merit when, as here, there is a “subsequent conviction by the

petit jury.” United States v. Edmond, 815 F.3d 1032, 1042 (6th Cir. 2016)

(emphasis in original), rev’d on other grounds sub nom Harper v. United States,

581 U.S. 912 (2017); see also United States v. Brown, 332 F.3d 363, 375 (6th Cir.

2003); United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996) (rejecting a

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postconviction motion “claiming that perjured testimony was presented to the

grand jury” because “any error by the prosecution before the grand jury is

harmless” when the defendant “was subsequently convicted by the petit jury”). So

whatever defects Thrush alleges in the grand jury proceedings, his subsequent

conviction forecloses dismissal of the indictment on that basis. Because Thrush

presents no viable ground to dismiss the indictment, Rule 6(e)(3)(E)(ii) provides

no basis for piercing grand jury secrecy.

Second, apart from the effect of the conviction, the contemplated motion to

dismiss would be untimely. Criminal Rule 12(b)(3) provides a list of motions that

must be made before trial. Among those motions are those alleging “a defect in

instituting the prosecution,” including “an error in the grand-jury proceeding,” Fed.

R. Crim. P. 12(b)(3)(A)(v), like prosecutorial misconduct, Edmond, 815 F.3d at

1042. And a court can only entertain that untimely motion if the moving party

shows good cause “to excuse the untimeliness.” Id. (citing Fed. R. Crim. P.

12(c)(3)).

Thrush presents no sufficient excuse. He argues that he only recently learned

of other cases in which the same prosecutor allegedly engaged in misconduct

before a grand jury. But those proceedings occurred in 2024 and were matters of

public record. See United States v. Mann, No. 4:20-cr-20599, ECF Nos. 607, 608

(E.D. Mich.). More importantly, Thrush himself raised substantially similar

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arguments before trial. In a 2024 motion to dismiss, he argued that the grand jury

had been improperly prejudiced by evidence concerning his use of PPP loan

proceeds and alternatively requested an in camera review of the grand jury

proceedings for prosecutorial misconduct. ECF No. 160, PageID.2781-83. The

Court rejected those arguments and requests. That history demonstrates that the

factual basis for his present argument was known to him before trial—

contradicting his contention that he could not have raised the existing issues more

forcefully as he does now. The addition of publicly available examples from

unrelated prosecutions does not excuse his failure to pursue the dismissals when

Criminal Rule 12 required him to do so.

Because Thrush cannot demonstrate a viable, timely basis for dismissing the

indictment, he has not satisfied Rule 6(e)(3)(E)(ii). His request to unseal the grand

jury materials must therefore be denied. The same disposition follows for Thrush’s

motion to adjourn sentencing. That motion rests entirely on the premise that the

Court should first resolve the dispute over disclosure of the grand jury materials.

Because the motion to unseal will be denied, no basis remains to postpone

sentencing. The motion to adjourn will therefore be denied. The parties will instead

be directed to file their sentencing memoranda in accordance with the schedule set

by the Court.

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IV.

Accordingly, it is ORDERED that Defendant Dale Thrush’s Objections 11

and 13 to the PSR are SUSTAINED IN PART insofar as they argue (1) that the

relevant post-indictment EIDL loan modifications do not affect the fraud loss

calculation, and (2) that the loan modification for Thrush’s Pit Stop that he took no

part in securing is not relevant conduct.

Further, it is ORDERED that those objections are OVERRULED IN

PART insofar as they argue that the four EIDL loan modifications for Verno and

Xtreme and the one for Thrush’s Pit Stop that he co-signed are not relevant

conduct.

Further, it is ORDERED that Defendant Dale Thrush’s motion to continue

the evidentiary hearing, ECF No. 334, is DENIED AS MOOT.

Further, it is ORDERED that Defendant Dale Thrush’s motion to unseal

grand jury materials, ECF No. 345, is DENIED.

Further, it is ORDERED that Defendant Dale Thrush’s motion to adjourn

sentencing, ECF No. 348, is DENIED.

Further, it is ORDERED that the parties are DIRECTED to file their

sentencing memorandums on or before July 17, 2026.

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Dated: July 13, 2026 s/Robert J. White
Robert J. White
United States District Judge

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