United States v. Drage , 681 F. App'x 654 ( 2017 )


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  •                                                                          FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                   March 7, 2017
    Elisabeth A. Shumaker
    TENTH CIRCUIT
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellant,
    v.                                                      No. 15-4190
    (D.C. No. 2:09-CR-00460-DS-BCW-4)
    NATHAN WHITNEY DRAGE,                                     D. Utah
    Defendant - Appellee.
    ORDER AND JUDGMENT *
    Before BRISCOE, EBEL, and MURPHY, Circuit Judges.
    I. Introduction
    A jury found defendant-appellee, Nathan Drage, guilty of three counts of
    willful failure to file corporate tax returns and one count of conspiracy to impair
    and impede the Internal Revenue Service. The district court acquitted Drage of
    the conspiracy conviction, concluding the government’s evidence was not
    sufficient to show Drage had an unlawful agreement with any coconspirator. The
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    district court also conditionally granted Drage’s motion for a new trial as to the
    conspiracy count. See Fed. R. Crim. P. 29(d). The government appeals.
    Exercising jurisdiction pursuant to 
    18 U.S.C. § 3731
    , this court reverses
    the district court’s rulings and remands the matter to the district court to reinstate
    the guilty verdict.
    II. Background
    Drage and three other individuals—Lester H. Mower, Eva Jeanette Mower, 1
    and Adrian A. Wilson—were charged in a superseding indictment with, inter alia,
    conspiracy to impede “the lawful government functions of the Internal Revenue
    Service in the ascertainment, computation, assessment, and collection of . . .
    federal income taxes.” See 
    18 U.S.C. § 371
    . The alleged objective of the
    conspiracy was the concealment of income from the IRS. The charges arose from
    a reverse merger 2 business in which Drage, Lester Mower, and Wilson were
    engaged for many years. Drage was also charged with multiple counts of willful
    failure to file corporate income tax returns. See 
    26 U.S.C. § 7203
    .
    1
    According to Drage, the charges against Ms. Mower were dismissed
    pursuant to Fed. R. Crim. P. 48(a).
    2
    “A reverse merger is a transaction in which a privately-held corporation
    acquires a publicly-traded corporation [the “shell company”], thereby allowing
    the private corporation to transform into a publicly-traded corporation without the
    necessity of making an initial stock offering.” SEC v. M & A West, Inc., 
    538 F.3d 1043
    , 1046 (9th Cir. 2008).
    -2-
    The prosecution against Drage proceeded to trial in February 2015. The
    government’s theory as to the conspiracy charge was that Drage conspired with
    Mower and Wilson to impede the IRS by concealing information necessary for the
    IRS to properly assess income taxes against him. The government argued the
    deception “occurred at every phase of [the reverse merger] business” and the
    concealed information included the ownership and taxable sales of stock.
    The government’s evidence demonstrated the scheme worked as follows.
    Drage, Mower, and Wilson obtained a controlling interest in a publically traded
    company “with minimal assets and liabilities and no actual operations,” i.e., a
    “shell company.” SEC v. M & A West, Inc., 
    538 F.3d 1043
    , 1046 (9th Cir. 2008).
    They then installed nominees to serve as officers and directors of the shell
    company. These nominees had no function other than to sign documents on
    behalf of the shell companies; all decisions with respect to the shell companies
    were actually made by Drage, Mower, and Wilson. Drage’s role included
    preparing documents necessary to transfer stock in the shell companies to
    individual nominees and entities controlled by him, Mower, and Wilson. A
    privately held company was then merged into the shell company and the nominees
    became stockholders in the post-merger company.
    The government’s evidence showed that once the reverse mergers were
    complete, Drage prepared the legal documents necessary for the nominees to
    transfer shares in the post-merger corporation to him, Mower, and Wilson or to
    -3-
    entities controlled by them. One witness, who served as an officer and director of
    a post-merger corporation known as NetAmerica International Corporation
    (“NetAmerica”), gave an example of how these transfers were effectuated. He
    testified that Drage prepared documents directing the issuance of shares in
    NetAmerica intended for a nominee 3 to instead be issued to “Nathan Drage” and
    “Nathan W. Drage, trustee.” Drage also prepared documents necessary for shares
    in NetAmerica to be transferred to a company controlled by Wilson known as A-
    Vision Financial Corp. A unanimous consent prepared by Drage stated that A-
    Vision Financial was being reimbursed for post-merger legal expenses it allegedly
    financed. The witness, however, testified that Drage provided all the legal
    services for the NetAmerica reverse merger. In other post-merger documents
    prepared by Drage, additional shares of stock in NetAmerica were issued to A-
    Vision Financial and A-Business Funding Corp., an entity controlled by Mower,
    allegedly as repayment for bridge loans. The witness testified that the decision as
    to how many new shares should be registered or the individuals or entities to
    whom shares in NetAmerica would be issued was made by Drage or Wilson.
    3
    Pursuant to a document Drage prepared and filed with the SEC, the shares
    were initially issued to a nominee named Michael Labertew. Labertew testified
    he never received the stock because Mower and Wilson, instead, paid him $1000
    cash as compensation for his role as nominee. He endorsed a blank irrevocable
    stock power based on representations made to him by Mower and Wilson that the
    shares would be returned to NetAmerica.
    -4-
    Once stock in the post-merger company was issued, the shell game began. 4
    First, shares in the post-merger companies held by nominees were transferred by
    the nominees to multiple brokerage accounts controlled by Drage, Mower, and
    Wilson. The government presented evidence that Wilson controlled eleven
    brokerage accounts that were managed by four different brokerage firms. His
    name was listed on only two of these accounts although he had authority over all
    eleven. Mower controlled seven accounts that were managed by three different
    brokerage firms. Two were in his name. Drage had account authority over six
    accounts with three brokerage firms. One was in his name. Twelve additional
    brokerage accounts were controlled by family members, many of whom also
    served as nominees in the reverse merger business. For example, Mower’s sister,
    Lisa Valerio, frequently served as a nominee and controlled four brokerage
    accounts. Mower’s mother, who also served as a nominee on several transactions,
    controlled two brokerage accounts; neither was in her name.
    In an exhibit titled, “Story of a Stock Certificate,” the government provided
    the jury with an example of how the post-merger actions of Drage, Mower, and
    4
    Steve Roberts, one of the IRS revenue agents who worked on the civil
    audit of Drage, Mower, and Wilson, examined more than one thousand documents
    relating to eighteen reverse mergers. He testified that he reviewed the entire set
    of documents “four or five times” and each time it took him two weeks. Another
    witness, who was employed as a special agent in the IRS criminal investigations
    unit, testified that a team of eleven agents spent two days looking through the
    evidence obtained during the search of Drage’s office in an attempt to locate
    Drage’s tax returns.
    -5-
    Wilson impeded the ability of the IRS to determine their tax liability by masking
    the true ownership of the stock. The government’s example involved a certificate
    for 380,000 shares of stock in NetAmerica that was issued to Lisa Valerio on
    October 15, 1998. Valerio received the stock as compensation for serving as a
    nominee officer and director. 5 Valerio testified her tasks as nominee included
    attending one or two meetings, signing documents, and “trying to learn more and
    more” about the company.
    Valerio broke the NetAmerica certificate into eight separate certificates of
    various denominations on the “guidance” of Drage and Mower. All eight
    certificates were issued in Valerio’s name. Valerio deposited two of the
    certificates into her brokerage account at Alpine Securities and thereafter sold
    those shares on the advice of Mower and/or Drage. After the shares were sold,
    disbursements totaling $1,025,908 were made from the Alpine Securities
    brokerage account to Valerio’s personal bank account at Salt Lake Credit Union.
    On May 7, 1999, Valerio wrote a check from her bank account to Robert Kroft in
    the amount of $50,000. She testified this check was written at the direction of
    5
    Valerio, who is Mower’s sister, served as the Vice President of
    NetAmerica and received the 380,000 shares as compensation for her role in that
    capacity. The shares were eventually sold for many millions of dollars. Another
    nominee, Michael Labertew served as President of NetAmerica. He testified he
    received only $1,000 as compensation for his services as a nominee. See supra
    n.3.
    -6-
    either Drage or Mower and she could not remember its purpose although it may
    have been for services Kroft performed for the reverse merger business.
    On August 8, 2000, Valerio wrote a $200,000 check from her bank account
    to Nathan Drage Law Firm. The memo line on the check indicated the amount
    was a loan with an eighteen percent annual interest rate. Valerio testified that
    despite the size of the loan, there was no loan agreement and Drage provided no
    collateral. She also testified she converted the loan to an investment on the
    advice of Drage, Wilson, and Mower. As to this “investment,” Valerio’s 2000
    income tax return indicated she acquired stock in Digital Power on August 8,
    2000—the date she made the loan to Drage. Her return also reflected that the
    stock was sold on December 31, 2000, at a loss of $200,000. None of her
    brokerage account statements, however, reflected either the purchase or sale of
    stock in Digital Power. During closing argument, the government asked the jury
    to infer from this evidence that the transaction was, in reality, a transfer of
    $200,000 from the NetAmerica reverse merger to Drage that was improperly
    treated as both a tax-free loan to Drage and as an income tax write-off for
    Valerio.
    The government’s exhibit also detailed the steps taken to convert the
    remaining NetAmerica certificates issued to Valerio into cash and transfer that
    cash to Drage, Mower, and Wilson. For example, Valerio cancelled two
    certificates, each representing 100,000 shares, and had them reissued in the name
    -7-
    of DHM Enterprises, LLC, a company Valerio and Mower set up for the benefit
    of their mother. Valerio testified this was done “under the guidance” of either
    Mower or Drage. Proceeds from the sale of these shares totaled $3,232,895 and
    were transferred into bank accounts controlled by DHM Enterprises. Checks for
    substantial amounts were written from the DHM Enterprises accounts to Nathan
    Drage Law; Lester Mower; Jeanette Mower; Nathan W. Drage Trust; Nathan W.
    Drage, P.C.; A-Business Funding; and Global Funding Group, Inc., an entity
    controlled by Wilson. An additional $746,228 in proceeds from the sale of the
    NetAmerica stock issued to Valerio was transferred to a bank account controlled
    by Mower’s wife, Jeanette Mower.
    Matthew Curtis, a special agent with the IRS also testified at Drage’s trial.
    In June 2004, Curtis was assigned to investigate Mower and his wife. The
    investigation related to stock sales conducted through Alpine Securities that were
    not correctly reported on the Mowers’ tax returns. Curtis’s investigation included
    gathering and analyzing brokerage and bank accounts. He eventually obtained a
    warrant to search the office occupied by Drage, Wilson, and Mower. By the time
    Curtis’s review of the records obtained from the office was complete, the
    investigation had expanded to include Drage and Wilson.
    Curtis testified he attempted to catalogue disbursements made between
    1999 to 2006 from brokerage accounts controlled by Drage, Wilson, and Mower
    to bank accounts also controlled by the three men. The brokerage accounts
    -8-
    contained stock received by Drage, Mower, and Wilson, or their nominees from
    the reverse merger business. Curtis testified the proceeds from the sale of that
    stock were co-mingled with other funds in the bank accounts and the funds were
    repeatedly moved between accounts owned or controlled by Drage, Mower, and
    Wilson. Specifically, Curtis testified that between 1999 and 2006, Drage, Mower,
    and Wilson directed 1029 6 separate bank account transfers involving the proceeds
    from stock they or their nominees received from reverse mergers. Government
    Exhibit 60-29 detailed these 1029 transfers.
    Curtis’s testimony also detailed disbursements subsequently made from
    bank accounts or controlled entities which had received either a brokerage
    account disbursement or a transfer of funds from a bank account into which
    brokerage account disbursements had been received. These disbursements were
    for personal expenses incurred by Drage, Mower, and Wilson. The payments
    benefitting Mower totaled $1,509,986 and they included the sum of $173,668.12
    for mortgage payments on Mower’s residence; home improvement expenses
    totaling $383,980; disbursements from an account controlled by Drage to pay
    Mower’s back taxes; payments covering education expenses for Mower’s
    children, including $53,982 to Intermountain Christian School and $12,536 to
    Azusa Pacific University; checks from the A-Business Funding account to BMW
    6
    Curtis’s summary of disbursements was limited to those involving $1000
    or more.
    -9-
    of Palm Springs for Jeanette Mower’s BMW automobile in the total amount of
    $25,502; other automobile expenses including $43,511 for Mower’s Porsche 911
    automobile, $1027 for Jeanette Mower’s Mercedes CLS 500C, and $2137 for
    Jeanette Mower’s Hummer H2; and disbursements totaling $509,732 directly to
    Mower, some of which were drawn on a bank account in the name of Nathan W.
    Drage, P.C. Payments benefitting Wilson totaled $2,298,888 and were very
    similar to those that benefitted Mower. They included mortgage payments
    totaling $291,852; home improvement expenses totaling $69,283; payments for
    luxury automobiles totaling $278,969; credit card payments totaling $294,503;
    private school tuition totaling $28,700; disbursements of $95,000 to Las Vegas
    casinos; $743,142 in cash disbursements made directly to Wilson and his wife
    from entities and accounts controlled by either Wilson or Drage; and transfers
    totaling $329,136 to a joint personal account controlled by Wilson and his wife.
    Like Mower and Wilson, Drage also received more than a million dollars
    from the bank accounts analyzed by Curtis to pay remarkably similar expenses.
    The disbursements benefitting Drage included mortgage payments of $189,869;
    home improvement expenses totaling $19,080; charitable donations of $97,865;
    payments for private school tuition totaling $15,202; cash disbursements to
    Drage’s wife totaling $668,545 and disbursements to Drage totaling $144,100;
    expenses relating to the purchase and maintenance of a boat in the amount of
    $46,043; payments for automobiles totaling $109,836; credit card payments of
    -10-
    $286,064; and three payments for two airplane hangers in the total amount of
    $125,000. Curtis testified the total of all disbursements benefitting Drage was
    $1,701,610.
    Despite the millions of dollars flowing to Drage, Wilson, and Mower from
    the reverse merger business, all three failed to file individual income tax returns
    for many of the relevant years or report any stock sales. Neither Drage nor
    Wilson filed personal or corporate income tax returns from 2000 to 2006. Mower
    filed no individual returns from 2003 to 2006.
    The jury convicted Drage on both the conspiracy and the failure-to-file
    counts. Mower and Wilson were tried in a separate proceeding presided over by
    the same judge. They were convicted of failing to file corporate tax returns but
    were acquitted of conspiracy. After the judgment in the Mower/Wilson trial,
    Drage filed a motion for a judgment of acquittal, asking the court to enter an
    acquittal on the conspiracy count. In the alternative, he asked for the court to
    vacate the jury’s verdict on all counts and grant him a new trial. The district
    court granted Drage’s motion for acquittal, concluding the government did not
    present “sufficient evidence to prove the existence of an agreement between
    Drage and Mower and Wilson in furtherance of a conspiracy.” The court also
    conditionally granted Drage’s request for a new trial as to the conspiracy count,
    stating as follows: “Based on the unique circumstances of having heard the
    evidence in both separate trials of the alleged co-conspirators, there is a serious
    -11-
    danger that a miscarriage of justice has occurred.” It is from these rulings that
    the government appeals.
    III. Discussion
    A.     Jurisdiction
    Before proceeding to the merits, it is necessary to determine whether this
    court has jurisdiction over this appeal. 7 Although the district court vacated
    Drage’s conspiracy conviction, his convictions for violating 
    26 U.S.C. § 7203
     by
    willfully failing to file corporate tax returns have not been vacated. Because he
    has not yet been sentenced on those convictions, this appeal is interlocutory.
    United States v. Stallings, 
    810 F.2d 973
    , 974 (10th Cir. 1987) (“[A] criminal case
    is not final until sentencing is completed.”). Our jurisdiction arises, if at all,
    under 
    18 U.S.C. § 3731
    . That statute states, in relevant part: “In a criminal case
    an appeal by the United States shall lie to a court of appeals from a decision,
    7
    The parties were asked to brief this issue in an order dated January 13,
    2016. Curiously, Drage argues this court should not “exercise its jurisdiction” to
    hear the appeal until after he is sentenced, implying that jurisdiction exists but the
    matter should be abated. We could find no authority for this approach and Drage
    cites none. He also argues 
    18 U.S.C. § 3731
     does not permit a government appeal
    from the grant of a motion for judgment of acquittal because Rule 29 is not
    mentioned in § 3731. This argument is foreclosed by decades-old Supreme Court
    and Tenth Circuit precedent. United States v. Wilson, 
    420 U.S. 332
    , 352-53
    (1975) (reading § 3731 as permitting a government appeal from a post-verdict
    judgment of acquittal); United States v. Calloway, 
    562 F.2d 615
    , 616-17 (10th
    Cir. 1977) (same); see also United States v. Martin Linen Supply Co., 
    430 U.S. 564
    , 568 (1977) (holding “appeals by the Government from . . . judgments of
    acquittal” entered under Rule 29 are authorized by 
    18 U.S.C. § 3731
     “unless
    barred by the Double Jeopardy Clause of the Constitution”).
    -12-
    judgment, or order of a district court dismissing an indictment or information or
    granting a new trial after verdict or judgment, as to any one or more counts, or
    any part thereof . . . .” 
    Id.
     (emphasis added).
    The plain language of § 3731 permits the government to appeal from a
    post-verdict ruling reversing only one of several convictions. The statute also
    instructs that the government’s appeal from such a ruling must be “taken within
    thirty days after the decision, judgment, or order has been rendered.” Id.
    Because it is typically not possible to sentence a criminal defendant within the
    thirty-day period, these two provisions, when read together, support the
    conclusion that this court’s jurisdiction over interlocutory criminal appeals is not
    affected by the fact a defendant has not yet been sentenced on any remaining
    counts. See United States v. Carrillo-Bernal, 
    58 F.3d 1490
    , 1491-92 (10th Cir.
    1995) (“Section 3731 governs interlocutory government appeals in a criminal case
    . . . .”). Accordingly, we have jurisdiction and proceed to the merits of the
    government’s appeal.
    B.     Judgment of Acquittal
    Rule 29(c)(2) of the Federal Rules of Criminal Procedure permits a court to
    set aside a guilty verdict and enter a judgment of acquittal. The grant of a Rule
    29(c)(2) post-verdict acquittal is reviewed de novo. United States v. Ching Tang
    Lo, 
    447 F.3d 1212
    , 1221 (9th Cir. 2006). Here, the district court ruled the
    government’s evidence was insufficient to sustain Drage’s conspiracy conviction.
    -13-
    When this court reviews the sufficiency of the evidence presented at trial, we
    draw all reasonable inferences “therefrom in the light most favorable to the
    government.” United States v. Hale, 
    762 F.3d 1214
    , 1222 (10th Cir. 2014). In
    conducting our review, we defer to the jury’s verdict and do not weigh conflicting
    evidence or consider witness credibility. United States v. Dewberry, 
    790 F.3d 1022
    , 1028 (10th Cir. 2015). A conviction should be reversed “only if no rational
    trier of fact could have found the essential elements of the crime beyond a
    reasonable doubt.” Hale, 762 F.3d at 1222-23 (quotation omitted). Thus, the
    district court’s post-verdict acquittal is improper if a rational jury could have
    found Drage guilty of conspiracy beyond a reasonable doubt.
    Drage was charged with, and convicted of, violating 
    18 U.S.C. § 371
    ,
    which makes it a federal crime for two or more persons to conspire to defraud the
    United States. The indictment alleged the objective of the conspiracy was to
    defraud the United States “by impeding, impairing, obstructing, and defeating the
    lawful government functions of the Internal Revenue Service in the
    ascertainment, computations, assessment, and collection of revenue, that is,
    federal income taxes.” To secure a conviction on the § 371 conspiracy charge,
    the government was required to show (1) Drage agreed with another person to
    violate the law; (2) he knew the essential objective of the conspiracy; (3) his
    involvement was knowing and voluntary; (4) there was interdependence among
    the coconspirators; and (5) an overt act in furtherance of the conspiracy was
    -14-
    committed. United States v. Bedford, 
    536 F.3d 1148
    , 1156 (10th Cir. 2008). In
    his motion for judgment of acquittal, Drage argued there was insufficient
    evidence he had an agreement with either Mower or Wilson to impair or impede
    the IRS.
    In its order granting Drage’s request for an acquittal, the district court was
    influenced, in part, by the notion that Drage, Mower, and Wilson all reported
    some income from stocks sales during the relevant period and “there were several
    returns prepared for many of the years at issue.” Drage repeats this justification
    in his appellate brief. The district court’s statement is erroneous for two reasons.
    First, and most glaring, is that the evidence showed Drage and Wilson never
    reported any income from stock sales from 1999 to 2006. 8 Mower reported stock
    sales on joint returns he filed in 2000, 2001, and 2002. Mower did not file a joint
    or individual return in 1999 or 2003 to 2006 and, thus, reported no income from
    stock sales.
    Second, although the district court correctly noted tax returns were
    prepared for many of the years at issue, that fact does not support the court’s
    conclusion that Drage, Mower, and Wilson “made full disclosures of the income
    attributable to each” to their individual accountants. Contrary to the court’s
    statement, there was no evidence Drage fully disclosed his income to Mark
    8
    Neither Drage nor Wilson filed individual income tax returns from 2000 to
    2006. On the returns they filed in 1999, each reported zero income from stock
    sales.
    -15-
    Berrett, the accountant he retained in 2004. Mr. Berrett prepared Drage’s returns
    based on information he received from Drage. He testified the 2001 personal
    income tax return he prepared for Drage showed one sale of stock in that year,
    resulting in a long term capital gain of $232. Drage’s 2002 return showed no
    capital gains and no stock sales. Mower’s accountant, Kent Fitzgerald, and
    Wilson’s accountant, James Downward, testified they were retained in 2004 and
    2005, respectively, to prepare prior years’ returns based on documents supplied
    by Mower and Wilson. There was no testimony or other evidence confirming that
    the records Drage, Mower, and Wilson provided to their accountants were
    accurate or complete. In light of the government’s evidence showing Drage,
    Mower, and Wilson were the beneficial owners of stock held and sold by
    nominees, the jury could reasonably conclude, contrary to the district court’s
    statement, that the information the three men provided to their accountants as to
    their capital gains from stock sales was inaccurate or incomplete. Further, there
    was no evidence Drage, Mower, or Wilson ever filed the returns prepared by
    Berrett, Fitzgerald, and Downward.
    Even assuming Drage, Mower, and Wilson provided their accountants with
    full and accurate information, the failure of all three to file the prepared returns
    supports the government’s position they had a common agreement to violate the
    law. Specifically, the evidence showed (1) Drage, Mower, and Wilson rarely, if
    at all, filed income tax returns during the relevant period; (2) all three men
    -16-
    retained accountants to prepare prior years’ returns only after the government
    began investigating Mower and his wife; and (3) none of the men filed those
    returns. Construed in the light most favorable to the government, a reasonable
    jury could infer from this similar, yet unusual, behavior that Drage, Mower, and
    Wilson had an agreement not to file the prior years’ returns because they would
    provide the IRS with information it could use to accurately assess their tax
    liability. 9 The district court erred by weighing conflicting evidence as to Drage,
    Mower, and Wilson’s tax returns and failing to view all the evidence in the light
    most favorable to the government. United States v. White, 
    673 F.2d 299
    , 301-02
    (10th Cir. 1982) (reiterating that the district court must view all the evidence in
    the light most favorable to the government and is precluded from weighing
    conflicting evidence).
    “To demonstrate the existence of a conspiratorial agreement it simply must
    be shown that there was a single plan, the essential nature and general scope of
    which was known to each person who is to be held responsible for its
    consequences.” Snell v. Tunnell, 
    920 F.2d 673
    , 702 (10th Cir. 1990) (quotations
    and alteration omitted). Further, a conspiratorial agreement may be implicit and a
    “jury may infer conspiracy from the defendants’ conduct and other circumstantial
    evidence indicating coordination and concert of action.” United States v. Dazey,
    9
    Steve Roberts, an IRS revenue agent, testified that a nominee does not
    recognize any income from the sale of stock. The income, instead, must be
    recognized by the beneficial owner.
    -17-
    
    403 F.3d 1147
    , 1159 (10th Cir. 2005). The government presented evidence that
    Drage, Mower, and Wilson had a close working relationship and were all involved
    in the same reverse merger business. William Chipman, an individual who played
    a role in at least one reverse merger testified Wilson found the deals, Mower
    structured them, and Drage prepared all the legal documents. The government’s
    evidence showed that all three men engaged in identical post-merger conduct: all
    received stock in the post-merger company (or proceeds from the sale of that
    stock) directly or indirectly from a nominee in the form of distributions to
    brokerage accounts they owned or controlled; all engaged in the very unusual
    activity of repeatedly moving the proceeds from the sale of the stock from one
    bank account to another, co-mingling the proceeds with other monies in the bank
    accounts; all used the proceeds to pay personal expenses; and none reported the
    income from the stock sales. Based on evidence Drage, Mower, and Wilson all
    engaged in post-merger conduct that was unusual and coordinated, the jury could
    reasonably infer the three men did not each independently devise the same post-
    merger process but that they collectively formulated a common plan intended to
    obfuscate the beneficial ownership of stock. The government’s evidence also
    showed that Drage, Mower, and Wilson had ample opportunity to devise and
    perpetuate this scheme. There was testimony the three men shared office space, a
    receptionist, a main phone line, and support staff. The receptionist testified the
    three “made their decisions together” and met daily behind closed doors.
    -18-
    Properly considered in the light most favorable to the government, this evidence
    is sufficient to support a finding Drage, Mower, and Wilson had a conspiratorial
    agreement.
    Having concluded the evidence was sufficient to show an agreement, we
    next consider whether that agreement was unlawful. The district court ruled in
    Drage’s favor on this point, assuming there was an agreement but concluding
    there was insufficient evidence the objective thereof was to impede the IRS. The
    court was persuaded by Drage’s argument that none of the post-merger activity in
    which he, Mower, or Wilson engaged was illegal. Specifically, there was no
    evidence of any illegality in the reverse mergers themselves, the use of nominees
    to facilitate reverse mergers, the use of nominees to hold stock, or the repeated
    transfers of money from bank account to bank account. According to the district
    court, this lack of evidence was fatal to the government’s case because “[m]aking
    the job of the IRS more difficult is not tantamount to conspiring to violate the
    law.” The court identified the only evidence of illegality as the failure of Drage,
    Mower, and Wilson to file returns for some of the years in question. It concluded
    that lone fact was insufficient to support the jury’s verdict.
    The district court is correct that there was nothing unlawful about the
    majority of the individual acts in which Drage, Mower, and Wilson engaged and
    the government does not argue otherwise. The government, however, is not
    required to show that all the individual acts in which coconspirators engaged were
    -19-
    themselves illegal. Evidence is sufficient to show an unlawful agreement for
    purposes of § 371 if it indicates the obstruction of lawful governmental functions
    was accomplished by “deceit, craft or trickery, or at least . . . means that are
    dishonest.” Hammerschmidt v. United States, 
    265 U.S. 182
    , 188 (1924).
    In United States v. Brunetti, this court affirmed the convictions of
    individuals charged with conspiring to defraud the IRS in violation of § 371, who
    devised “a plan to purchase and sell stock at a gain without reporting it as taxable
    income.” 
    615 F.2d 899
    , 903 (10th Cir. 1980). The evidence showed the
    defendants engaged in the following activities: “Purchases of stock were made at
    a low price from unknowledgable sellers. The shares thus purchased were
    transferred into shares of subsidiary or related corporations. Stock splits ensued.
    Transfers were often through nominees, who arranged the ultimate sale of the
    stock thus acquired.” 
    Id.
     Although none of those individual acts were unlawful,
    this court held the evidence was “legally sufficient” to support the defendants’
    convictions. 
    Id.
     The district court’s ruling on the legality of the coconspirators’
    individual acts is inconsistent with Brunetti. Consequently, the district court
    erred in refusing to consider the considerable evidence showing the agreement
    between Drage, Mower, and Wilson was illegal even if that evidence did not show
    anything “per se illegal about the alleged business activity between Mower,
    Wilson, and Drage.”
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    The jury heard extensive evidence from which it could find that Drage,
    Mower, and Wilson knowingly agreed to engage in identical post-merger activity
    that impeded the ability of the IRS to trace beneficial ownership of the stock or
    the proceeds from its sale. As an example, evidence showed that the nominee
    who served as president in the NetAmerica reverse merger received $1000 as
    compensation whereas a second nominee, Mower’s sister Lisa Valerio, received
    328,000 shares of stock in NetAmerica as compensation for her role as vice-
    president. Additional evidence showed that Valerio subsequently transferred this
    stock or some of the proceeds from the sale of the stock to Drage, Mower, and
    Wilson, or entities controlled by them. She did so at their direction. From this
    evidence, the jury could reasonably infer that stock received by nominees was
    actually held for the benefit of Drage, Mower, and Wilson. The evidence further
    showed that (1) the stock beneficially owned by Drage, Mower, and Wilson was
    held in multiple brokerage accounts, many of which were not in their names; (2)
    during the relevant period, the three men repeatedly, and without any apparent
    justification, moved funds between more than thirty bank accounts managed by
    multiple banks, many of which were not in their names; (3) money was
    distributed from the bank accounts to pay personal expenses; and (4) Drage and
    Wilson failed to file income tax returns or report any stock sales to the IRS from
    2000 to 2006 and Mower failed to report stock sales from 2003 to 2006. Viewed
    as a whole and properly construed in the light most favorable to the government,
    -21-
    this evidence is sufficient to show the scheme in which Drage, Mower, and
    Wilson engaged was designed to obfuscate the true ownership of both stock and
    any gains from the sale thereof in a way that would impede the ability of the IRS
    to compute each man’s income taxes. A jury could infer from the coordination
    and complexity of the financial maneuvering undertaken by Drage, Mower, and
    Wilson—much of which was atypical and made the operation of their reverse
    merger business unnecessarily complicated—coupled with the failure of all three
    men to report income from the stock sales, that the purpose of the maneuvering
    was to avoid paying income taxes by making it impossible for the IRS to trace
    their ownership of the stock.
    Having reviewed all the relevant evidence in the light most favorable to the
    government, we have no hesitation concluding a reasonable jury could find that
    Drage conspired with Mower and Wilson to engage in coordinated action to
    achieve the common goal of receiving income from a reverse merger business and
    impeding the ability of the IRS to correctly calculate that income.
    C.     New Trial
    Rule 29(d)(1) of the Federal Rules of Criminal Procedure provides that “[i]f
    the court enters a judgment of acquittal after a guilty verdict, the court must also
    conditionally determine whether any motion for a new trial should be granted if
    the judgment of acquittal is later vacated or reversed.” Under Rule 33, a court
    may order a new trial “if the interest of justice so requires.” Fed. R. Crim. P. 33.
    -22-
    After granting Drage’s motion for judgment of acquittal, the district court also
    conditionally granted his request for a new trial. We review the grant of a motion
    for new trial under the abuse of discretion standard. United States v. Evans, 
    42 F.3d 586
    , 593 (10th Cir. 1994).
    The district court’s discussion on the matter of a new trial was brief. It
    stated: “Based on the unique circumstances of having heard the evidence in both
    separate trials of the alleged co-conspirators, there is a serious danger that a
    miscarriage of justice has occurred.” It further noted that a miscarriage of justice
    occurs when “an innocent person has been convicted.” Because we have already
    concluded the evidence was sufficient to support the jury’s guilty verdict, there
    was no miscarriage of justice of the type identified by the district court. In any
    event, after a thorough review of the record, we have no doubt it would be
    unreasonable to conclude Drage’s conspiracy conviction is against the great
    weight of the evidence. See United States v. Gabaldon, 
    91 F.3d 91
    , 93-94 (10th
    Cir. 1996). Instead, as described at length above, the jury’s verdict is amply
    supported by the evidence. Accordingly, the district court abused its discretion
    when it conditionally granted Drage a new trial.
    -23-
    IV.   Conclusion
    The judgment of the district court is reversed. The matter is remanded to
    the district court with instructions to reinstate the verdict of the jury and deny
    Drage’s motion for a new trial.
    ENTERED FOR THE COURT
    Michael R. Murphy
    Circuit Judge
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