NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0569n.06

                                        Case No. 19-2065

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                 FILED
                                                                            Oct 06, 2020
UNITED STATES OF AMERICA,                            )
                                                                       DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE EASTERN DISTRICT OF
JEREMIAH CHEFF,                                      )      MICHIGAN
                                                     )
       Defendant-Appellant.                          )
                                                     )


       BEFORE: BOGGS, DONALD, and THAPAR, Circuit Judges.

       THAPAR, Circuit Judge. Jeremiah Cheff appeals from a jury verdict convicting him of

sixty-four violations of the tax code. We affirm.

                                                I.

       Jeremiah Cheff and his wife owned a series of adult foster-care homes in Michigan. They

employed around thirty people across five distinct businesses. Like most employers, they withheld

payroll taxes from their employees’ paychecks. Unlike most employers, they pocketed the money.

       The Cheffs kept this up for about four years, racking up over $250,000 in unpaid payroll

taxes and missing sixty deadlines for filing tax returns. The IRS requested the delinquent payments

and returns, and at one point the Cheffs sent a promissory note masquerading as a check and

claimed that the note satisfied their tax obligations. While the Cheffs did not make any payments
Case No. 19-2065, United States v. Cheff


toward the tax debt until after their indictment, the IRS occasionally credited the outstanding

balance with refunds it would have paid Cheff for prior personal income tax payments.

        The IRS filed notices of tax liens against some of their properties and later referred the

matter to its criminal division. Eventually, Jeremiah Cheff also stopped filing personal tax

returns—all in all, he missed three years of required income tax filings.

        A grand jury indicted the Cheffs in October 2016. A few months later, Jeremiah Cheff

made one $43,000 payment, which the IRS allocated to some of his payroll tax liabilities.

        Shortly after being indicted, Cheff’s wife pled guilty. But Jeremiah Cheff went to trial on

sixty-four counts: sixty counts of failure to account for and pay payroll taxes, one count of

obstruction for having attempted to pay off the tax debt with a fake financial instrument, and three

counts of failure to file an income tax return. See 26 U.S.C. § 7202 (failure to account for and pay

payroll taxes);

of administration of internal revenue laws);

to file personal tax returns). A jury convicted Cheff on all sixty-four counts, and the district

court sentenced him to twenty-seven months in prison. Cheff appealed.

                                                   II.

        Cheff makes five arguments on appeal. He says the trial court erred in: (1) not dismissing

the charges for failure to file personal tax returns because the charges were unconstitutionally

vague; (2) denying Cheff’s motion for a directed verdict; (3) excluding evidence about his intent;

(4) excluding evidence of the post-indictment payments, only to allow them later at trial; and

(5) failing to instruct the jury on a lesser included offense. We consider each in turn.

        Sufficiency of indictment. Cheff argues that the counts charging him with failure to file

personal tax returns were unconstitutionally vague. But the indictment provided the elements of




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the offense and informed him of the years he failed to file his personal tax returns (2013–2015).

Nothing more was required. See United States v. Rankin, 

, 404–05 (6th Cir. 2019).

       Directed verdict. Cheff next argues that the district court erred in denying his motion for

a directed verdict. The question, which we review de novo, is whether “any rational trier of fact

could have found the essential elements of the crime[s] beyond a reasonable doubt.” United States

v. Howard, 

, 947 (6th Cir. 2020). At trial, Cheff offered no specific argument in

support of the motion and said only that the government had failed to make its case. But he

abandons this argument on appeal and instead claims the IRS liens on his property negated some

of the elements.

       Cheff puts forward two theories: (1) the liens constituted payment to the IRS, so he had

already satisfied his tax obligations, and (2) he thought the liens did, so even if he was wrong, his

actions were not willful. Neither theory is tenable. For starters, tax liens are not payments. See

United States v. Davis, 

, 257 (6th Cir. 2016) (describing how the IRS enforces a lien

and gets paid after the property is sold). And Cheff’s belief to the contrary does not undermine

his willfulness. First, the IRS filed the notices of tax liens well after Cheff had begun his pattern

of tax evasion; indeed, his failure to comply with the tax code prompted the lien filings. Liens

created after Cheff’s criminal conduct could not have affected his state of mind at the time of these

earlier crimes. Second, there is no evidence in the record that Cheff understood the liens to have

satisfied his tax obligations—either the preexisting ones or those he would incur in the future. The

district court did not err in denying this motion.

       Evidence of intent. Cheff’s third argument is that the district court abused its discretion by

preventing him from presenting evidence relevant to his misunderstanding of the law. The district

court required Cheff to lay a proper foundation showing that he actually relied on any materials he



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Case No. 19-2065, United States v. Cheff


wanted to introduce. The district court was right to do so: the materials are not relevant if Cheff

did not actually rely on them, and Cheff bore the burden of laying that foundation. See United

States v. Brika, 

, 529 (6th Cir. 2005). Cheff chose not to testify and did not attempt

to introduce any of this evidence. In short, Cheff’s right not to testify does not “free[] [him] from

adducing proof in support of a burden which would otherwise have been his.” United States v.

Rylander, 

, 758 (1983).

       Evidence of post-indictment payment. Next, Cheff argues that the district court erred by

first excluding—and then ultimately allowing—evidence that he had made a payment to the IRS

after his indictment. The court granted the government’s pretrial motion to exclude this evidence.

But Cheff’s lawyer defied that ruling by asking an IRS employee during cross-examination

whether Cheff had made any untimely payments toward his account. The court instructed the jury

not to consider the question or the employee’s subsequent answer.

       The next day, the government asked the court if it could introduce testimony about the

post-indictment payments to explain that the credits appearing on Cheff’s IRS transcripts did not

result from any payments Cheff had made. Cheff’s lawyer did not object, but he did ask the judge

to tell the jury that the lawyer had not acted inappropriately by asking the question about post-

indictment payments in the first place. The judge agreed: He granted the motion and made the

requested statement to the jury the next day. Cheff contends that the district court erred twice:

first by excluding the evidence before trial, and again by changing its ruling during trial.

       These arguments are both wrong. To start, the district court had discretion to admit or

exclude evidence of the post-indictment payment; neither choice would have been an abuse of

discretion. Second, Cheff was not prejudiced by the change. He says the district court’s original

instruction to the jury to disregard his lawyer’s question and the witness’s answer might have left



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Case No. 19-2065, United States v. Cheff


the jury with a negative impression of the lawyer. Maybe so, but the blame for defense counsel’s

defiance can hardly rest with the court. And that’s especially true here. When the court decided

to admit the evidence, it explained to the jury that no one had done anything wrong: “I have made

the decision that this is information that I think it is appropriate for you to have and I want you to

understand there was nothing inappropriate at the time and there was nothing inappropriate today

. . . .” R. 143, Pg. ID 1432. That was charitable—it was inappropriate for Cheff’s lawyer to break

the rules. The court’s decision to allow the evidence in, and its accompanying statement to the

jury, put Cheff in a better position than before.

       Lesser included offense. Cheff’s final argument is that he was entitled to a lesser-included-

offense instruction on the payroll-tax charges. The district court did not abuse its discretion in

rejecting the request. United States v. Colon, 

, 373 (6th Cir. 2001) (standard of

review). A defendant is not entitled to an instruction on a lesser included offense whose elements

are not “identical to part of the elements of the greater offense.” 

. Cheff

was charged with the failure to account for and pay payroll taxes under 26 U.S.C. § 7202. He

requested an instruction on the “lesser offense” of filing fraudulent returns, statements, or

documents under 26 U.S.C. § 7207. The elements of the former crime are (1) failure to “collect

or truthfully account for and pay over” a tax (2) required by the U.S. tax code (3) with willful

intent.

latter requires (1) filing a document (2) known to be false or fraudulent

(3) in a material matter (4) with willful intent. Sansone v. United States, 

, 352 (1965).

The only element those crimes share is willfulness. No lesser-included-offense instruction was

appropriate.

       We affirm.




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