* The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by desig

nation.

1 The second count in the indictmen t charg ed: From approxima

tely April of 1 993 to approxima

tely Ma y of 1998, t he precise times unknown, in the Eastern District of Michigan, Northern District, Clyde Fisher a

n d Da vid Bennett, defendants herein, did knowingly make, and cause to be made , false s tatement s and representa tions to the

Social Sec

urity Administra

tion as to a material fact, that is the true identity of Cly de Fisher who was employed under the name and social security number of anothe

r, that fa ct being materia l to the determinat

ion by the Socia

l Security Administration of Cly

de Fishe r’s rig hts to social security disability benefits, all in violationof Title 42, United States Code, section 408(a)(3). JA at 15.

NOT RECOMM

ENDED FO R FULL- TEXT PUBLI CATION File Name: 04a0002n.06 Filed: September 30, 2004 Case No. 03-1819 UNITED STATE S COURT OF APPEA LS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant,

v. DAVID BEN

NETT, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ON APP EAL FROM THE UNITED STATES DISTRIC T COURT F OR THE EASTERN DISTRICT OF MICHIGAN

O P I N I O N

Before: BATCHELDER and DAUGHTREY, Circuit Judges; and DOWD, Senior District Judge. * PER CURIAM I. Introduction. The Appellee, David Bennett, wasconvicted on May 3, 2002 by a jury

following a four-day trial of the second

count in the indictme

nt charg ing him wi

th a viola tion of 42 U .S.C. § 408 (a)(3). 1(Case No. 03-1819)

2 Bennett was also named in thefirst count of the indictment with the crime of conspiracy with alleged co-conspirators, Cly de Fisher and Mary

Fisher, to defraud theUnited States. The jury acquitted Be nn et t o n C ou nt 1. Bo th Fi sh er s e nt er ed pl ea s o f g ui lt y and te stified as government witnesse s.

3 The district court’s opinion granting Bennett’s Rule 29 motion and the judgment entry vacatingthe sentence were dated May 28, 2002. However, both the district court’s opinion and the judgment entry bea r the filing date of May

28, 2003. The government’s notice of appea l was filed onJune 26, 200 3 and no c laim is adv anced by B ennett that the notice of

appeal was untimely f

iled. Bennet tmade a Criminal Rule 29 motion for an acquittal after the gover n ment rest ed it s case-inchief and th e dist rict c ourt t ook t he mot ion u nder ad visem ent an d defer red a ru ling. 2 Following Bennett’s conviction, the district court gra n ted the Rule 29 motion, 3 and the g overnme nt appea ls. After r eview, w e rever

se and re mand for sentenc ing. Our

analy sis follow s. Da vid Bennet t was empl oye d at L abadie a utomobile d

ealership as its CE O. Cly de Fishe r worked for Labadie af

ter he had been

aw ar de d S oc ia l S ec ur it y Di sa bi li ty B en ef it s ( “D IB” ). Ini ti al ly, Clyde Fisher received a Form

1099 to report his earnings at L abadie. The arrange ment then changed. Clyde Fisher was paid un

der his wi fe Mary

Fisher’ s Social Se curity Number a

nd continu

ed to receive DIB . Both Fi shers, a s wellas other employe es of Laba die, testi fied as governme

nt witness es. It is the government’s position that the testimony of the Fishers combined with the testimony of the Laba die employees, Da

wn Bukowski and Jean Toth, supports the jury g uilty verdict asto Count 2 under a Jackson

v. Virgini a , 443 U.S. 307 (1979) analy sis. Specifically, the g overnment contended that the testimony

supports t

he findin g that B ennett di d

knowing ly ma

ke and c ause tobe made f

alse statemen ts and representations to the Social Security Administration as to a materia l fact, that is, the t rue identity of Cly

de Fisher who was employ ed under the name and Social Security Nu mber o f another, that fact being material to the determination by the Social Security Administration of Clyde(Case No. 03-1819)

Fisher’s right s to DIB. II. A Review of the Government’s Evidence. Clyde Fishe r related that he had received a disability pension from a former employer, General Motors, a

nd was al so awar

ded DI B. JA at 276 . Subseque

ntly , he beg an worki

ng at Labadie andrecei ving Form 1099s with no taxes w ithheld. T

he Form 1 099 arra

ngemen t for pay ments t o Clyde Fisher then changed; and

at David Bennett’s sugge stion, he was placed on the pay roll as Mary Fisher u sing her

Social Sec

urity Number. His incri

minating testimony

follows: Q Did

there come a time when Mr. Bennett talked to y ou about needing to do something regarding pa

perwork for y

our full time employment at Labadie? A Yes. Q Tell us how that happened. A Dave came to me and said that we have to do something

about this so that the government and Social Security -- THE COURT: Would you just repeat what y ou said. A Dave Bennet

t came to me and

said that we got to make sure that we pay the government

their sha re of the money and that i f

we did it this way, I

would owe the go ve rn me nt a l ot of

mo ne y. Q Wh at wa y? A The way I

was working under the 10 -- it would have bee n the 1099. Q Okay. Up until that time y ou were getting 1099s for y our work? A Yes. Q And so were taxes withheld from the 1099? A Repeat that, please. Q Do you know whether taxes wer

e being withheld f

rom y our 1099 e arning s?(Case No. 03-1819)

A On a 1099 t

here’s no taxes he ld, only

at the en d of the y ear y ou get a form. Q But if you g ot on the payroll they would start withholding taxes from you? A Yes. Q Nowlet’s g o back to w hat Mr

. Bennett and y

ou talked about; do you remember the exact date when that happened? A Repeat that. Q When Mr. Ben

nett came to you and said we’ve g ot to do some thing dif ferent

. A Yes. Q Do you remembe

r that exact date? A Not right offhand. Q All right. But where were y ou when you had this conve rsation? A In the

back of t he washr oom. Q So you were a

t the Labadie dealer

ship? A Yes. Q What was it he said to you about what y ou had to do? A We would ha

ve to ge t it so that w e would be

able to pa

y ta xes. Q Di d h e m ak e a re fe re nc e t o S oc ia l S ec ur it y? A Yes. Q What did he

say to that? A He said that -- I

don’t unde

rstand that. Q Do you remembe

r what he said? A Can you rephra se it for me, please.(Case No. 03-1819)

Q Ye s. Te ll us wh at Mr . B en ne tt sa id ab ou t S oc ia l S ec ur it y. A He said as long as I was on Soc ial Secur

ity a nd he kne w that, that he could -- we would make an application out for my wife. Q Who came up with t he idea of making an application out in y our wife’s name? A Dav e Be nne tt and I. Q Together? A Yes. Q So you talked about it back and f orth? A Yes. Q And

in the course of that conve rsati on, there was discussion about Social Se cu ri ty. A Yes. Q An d t he fa ct you we re al re ad y on So ci al Se cu ri ty? A Right. Q And

did you ge

t paperwork so y

ou could go through with this plan of signing you up under Mar

y Fisher’ s name? A Right. Q Who gave y

ou the paperwork? A Dawn. JA at 280-82. Clyde Fisher then recounted taking home the pa p erwork and having his wife sign the employment

application using her Social Security Number. Thereafter, he re ceived pay checks from(Case No. 03-1819)

Laba die in the name of Mary

Fisher, she endorsed thechecks over to Clyde Fisher, and he cashed the chec ks. Dawn Bukowsk i, a vete ran empl oye e of L abadie, testifie d that she did pay roll durin g the time of the misrepresentation of Clyde Fisher’s true name and Social Security Number and

had acc ess to the employment

files. She identified the employment files and the fact that Clyde

Fisher was carried

onthe books of La

badie as Mary Fisher. She alsoidentified the paperwork of L abadie that put Mary Fisher in the Labadie 401(k)program. The approval for the inc lusion of Mary Fisher on the 401(k) program contained the signature of David Be nnett and the beneficiary

for Mary Fisher was identified

as Clyde Fisher. Da

wn Bukowski was then asked the identity of the person at Labadie who instructed her to place Mary Fisher on the pay

roll, and she identified David Bennett as that person in th e f ol lo wi ng te st im on y: Q

. . . were y

ou aware of a person by

the name of

Mary F isher actually working at Labadie during

this time frame? A No. Q And who was working under the name of Ma ry Fisher ? A Clyde Fisher. Q Did y

ou know tha

t when y ou put Mar

y F isher on t

he pay roll? A Yes. Q Who told you to put Clyde Fisher on the pay

roll as Mary F isher? A Dave. Q Dave who? A Dave B ennett.(Case No. 03-1819)

JA at 227. Dawn Bukowski also testified as to why she did not question the Clyde Fisher-Mary

Fisher scheme in the following passage: Q Duringthis time frame, how many pe ople with the last name of Fisher were working at Laba

die? A No one else. Q Other than? A Mary or - - or Clyde. Q And who did the hiring and firing at this time? A Dave Ben nett d id th e hiri ng. Q Did he somet imes d o the f iring? A Yes. Q Did you see him do that on occa sion? A Yes. Q If you knew th at Clyde Fisher was working there and the paper work and payche cks were in Mary

Fisher’s name, did that cause y ou some concern? A Yes. Q What did y

ou do abou

t that? A Nothi ng. Q Wh y? A Because I

was -- I only

did what I was told to do. Q Wh o w as it th at to ld you to do it th at wa y? A Mr. Ben

nett.(Case No. 03-1819)

Q Did y

ou feel y ou could q

uestion Mr . Benne

tt on that? A No. Q Did you fear

consequences if y

ou tried? A Yes. Q What did you fear mig ht be a consequence? A You could get fired. Q Did you ever a

ctually meet Mar

y Fisher? A Yes. Q What were

the circ umstance s of that? A Idon’t remember the very first time I met her, but

it could have been

at, like, a f un ct io n, a c om pa ny p ic ni c, Ch ri st ma s p ar ty. Q In a

job rela ted socia l event? A Yes. Q So you knew there was a separate person named Mary Fisher? A Yes. Q Would Mr. B ennett a ttend thos e functi ons? A Yes. JA at 237-38. The government introduced voluminous exhibits demonstratingthat during the time period inquestion, Clyde Fisher c ontinued to receive DI

B exceeding Ninety

Thousand Dollars, as well as

numerous copies of pay

checks to M ary

Fisher s igned b

y D avid Be

nnett, an d the pay roll form s maintaine d by

Laba die to pay Mary Fisher, including

the rele vant W-2 F orms.(Case No. 03-1819)

The government also presented the testimony of Jean Toth, a 40-y ear employe e of La

badie and the mother of Dawn Bukowski. Her testimony confirmed that the substitution of Mary F isher’s

name for that o f Cly

de Fishe r as an e mploy ee was k nown by other pe rsons in a supervis ory

capaci ty at Labadie. See JA at 260, lines 1-13; JA at 262, line 15 and JA at 263, line 14. III. A Revi ew of t he App licab le Law. As indicated, a district court ruling setting aside a jury

verdict based on insufficient evidence begins with Jackson

v. Virgini a , supra . In that conte xt, a tria l jud ge inconsidering a Rule 29 motion may neither weigh conflicting evidenc e nor consi der the c redibilit y of witnesse s and to do otherwise would allow the

judge to invade the provinc e of the j ury as the sol e finder

of fact in a jury trial. United States v. Adamo , 742 F.2d 927, 935 (6th Cir. 1984), cert. denied sub nom , Freeman v. United States , 469 U.S. 1193 (1985). Moreover, “[a] defendant claiming ‘insufficiency of evidence bears a very he avy burden.’ ” United States v. Vannerson , 786 F.2d 221, 225 (6th Cir. 1986).

IV. A Summary Review of the District Court’s Ruling. The district court

published an 18-page opinion granti ng the Ru le 29 motion

for an a cquittal. We cite sev eral passag es from the opinion which demonstrate that the district court engaged in a credibi lity

exercise inconcluding that the evidence was insufficie nt to support Bennett’s conviction on Count 2. First, the distri ct court

electe d to summarize the testimony of the de fendant

as having some impact in h

is decision. Specif

ically, the distr

ict cour t relate d as follows: David Bennet t testifie d that he j oined L abadie Old smobile in 1989. D. Bennet tTr. at 4-5. Bennett stated that although he had the authority to hire

and fire most people, Gary

Labadie had made c lear that certain “sacred c ows” were to be left alone, such as Dawn Bukowski, Jean Toth, and Walter Wittkopp. Id. at 8-9. Bob Mazzaraalso came to be know n as another employee who was bey ond Bennett’s(Case No. 03-1819)

au th or it y. Id. a

t 9-10. B ennett id

entified Defens e Exhibit 1 a s a

pay roll notic e form, stated that it was a required

part of a dding e mploy ees to the payroll, and state d that either he or a department head would have had the authority to fill out theform and have an employ

ee adde d to the pa

yr oll. Id. at 12-13. Benne

tt testified that a ltho ugh he h ad be come aware of Cly de Fisher’s “arrang ement” through Gary Labadie, he in i tially overlook ed it bec ause Cly

de Fishe r was scheduled to

be retur ned to his original porter status due to health problems, and his income would then have been reported on a 1099 form. Id. at 14. Be nnett also not ed th at Cl yd e Fisher’s arrangement

appeared to have the blessing of Ga ry Labadie, wh ich sug gested to Bennet tthat he should not interfere. Id. a t 26-27. Bennet

tdenied ever telling Dawn Bukowski to add

either Clyde or Ma

ry Fisher to the Labadie O ldsmobile payroll, and also stated that he and Walter Wittkopp ha

d never d iscussed the Fishe rs. Id. at 15. He al so denied

ever kno

wing tha t Clyde Fishe

r was re ceiving

Social Sec

urity disability benefits, and stated that he signed Mary Fisher’ s 401(k) d

ocumentsin his separate capacity

as trustee for the plan. I d. at 15-16. JA at 24-25. Secondly, we disag

ree with the district court’s assessment of Dawn Bukowski’s testimony in the following passage from the district court’s opinion:

The problem f

or the g overnme

nt in this ca se is that the available evidence demonstrates Bennett’s alleged involveme

nt in this scheme to have been much more remote. There is no pay

roll slip for Mary F isher

and no doc

ument ty ing Be nnett to Mary Fisher’s addition to the pay roll. Dawn Bukowski has no specific recollection of receiving any

application or payr

oll materials for Mary

Fisher. The government makes much of B ukowski’ s claim ea rly inher testimony that the defe ndant was the one who gave Mar

y Fishe r’s mate

rials to he r, but cr oss-examination re

vealed t hat this assertion, to the extent it suggested a specific recollec tion of the event, had

no basis infac t. A t best, Bu

kowski sta

ted that the materi als must ha ve come f rom Ben nett because all such paperwork

generally passed through him first. That alone, however, is not the s ort of sub stantial e vidence from whic

h a jury could inf

er that B ennett caused the false statement

or repr esentat ions of Ma

ry Fisher t o be tran smitted tothe Social Security Administration. See Martin , 375 F.2d at 957. JA at 33 (emphasis added). Th e cross-examination of Dawn Bukowski to which the district court made ref erence follows: Q All ri gh t. No w I u nd er st oo d yo u t o t es ti fy on direct ex amination that --(Case No. 03-1819)

4 Government

Exhibit 20 is a printe d applica tion for e mploy ment to wor

k at L abadie a

nd it set forth Mary F isher as the name of the applicant for empl oym ent and was dated 4-26-93. The application also contained the Social Security Number 372-42-9288 and listed the date of birth as 11-16-42. The application also indicated that the employ ment desired was for cleaning and that the applicant could sta rt at a ny tim e. The application also included the question “are y ou employed now” and the answer was “no.” correct me if I’m wrong

-- but I und erstood y ou to say to begin with that you receive d government’s exhibit 20, 4 the applica ti on for employment in the name of Mary Fisher, you

receiv ed it? A What do you mean I received it? I guess I

don’t understand. Q Well did you obtain the application for employ ment from somewhere? A Yes. Q Where? A I wou

ld have ha

d to have gotten it fr

om Mr. Be

nnett. Q When? A At the time the person was hired or filled out the application. Q Which was? A It would have been in 1993 af ter the person filled out the paper. Q Well do y ou r

em em be r? Do you have a

specific independent recollection of receiving this application? A This specific paper? Q That’s r

ight. A Do I remember this specif ic paper? Q Ex ac tl y. A I guess -- I

have so many, I

guess -- no, I don’ t remember this specific one.(Case No. 03-1819)

5 Government’s Exhibit 22 was a completed Form W-4 entitled “Employee’ s Withholding Allowance Certificat e” and w as sign ed by Mary E. Fisher on April 26, 1993 and using the Social Security Number of

372-42-9288. See JA 119.

6 Government’s Exhib it 23 is simila r to Government’s Exhibit 22. It is also an “Employe e’s Withholding Allowance Certificate” and bears the signature of Mary E. Fisher on April 3, 1997 and using the Social Security

Number of 372-42-9288. See JA 120.

7 Government’s Exhibit 24 is entitled“Employ ment Eligibility

Verification (Form 1-9)” and bears th e signa

ture of M ary

E. Fishe r on the da

te of Apr il 26, 1993 a

nd using the Socia

l Securit y Number of 372-42-9288. See JA 121.

8 Government’s Exhibit 25 is a form issued by the Penn Mutual L ife Insurance

Company

and entitled “Diversifier II

” and relates to the 401(k) Savings Plan for Labadie and contains the signature of Mary F isher and D.E. Bennett. See JA 122. Q All right. I’ll ask y ou the same question regarding government exhibit 22. 5 A I guess y

ou’re asking me to exactly remember when I

got the paper? Q When and where, under what circumstance s, where y ou were; do you remember where y

ou were? A Not the exact place I was, no. Q Howabout 23 6 dated April 3, 1997; almost four year s later; do you reme

mber that? A No. Q Exhibit

24, 7 we’re back t o April of ‘93 again, I ’ll ask you if y ou have a specific recolle ction of r

eceivin g that? A No. Q Government’s exhibit 25, 8 we’re into January 1995, I’l l ask you if y

ou remembe r that. A No.(Case No. 03-1819)

9 Government’s Exhibit 26 is entitled “Labadie Olds-Cadillac-GMC 401(k) Saving s Plan Compensa

ti on Re duction Agreement” and lists the employ ee as Mary

E. Fisher and contains the signature of Mary

E. Fisher and D.E. Bennett with the date of 1-5- 95. See JA 123.

10 Government’s Exhibit 27 is the “Beneficiary Designation” for the employe r Laba die with Mary E. Fisher as the participating employ ee and listing Clyde L . Fisher as the primary beneficiary and identifying Cly

de Fisher as the spouse of the participating employ

ee. The form was signed by Mary E. Fisher on 1-5-95 and her signa ture wa s witnessed by David Z orn. The signature of the defendant David Bennett does not appear on Government’s Exhibit 27. See JA 124.

11 Government’s Exhibit 28 is entitled “Employee’s Michig an Withholding Exemption Certific ate State of Michigan - Department of Treasury ” and is signed by

Mary E. F isher

using the same Social Security Number a nd date of birth as used previously . The defendant David Bennett’s signature does not appear on the exhibit. See JA 125.

12 Government’s Exhib it

29 is a L abadie d

ocument r equiring all employees to provide in the caseof emer

gency the pers on to notify. Mary Fisher is listed the employee and the person to notify inthe case

of an emergency

is listed as Clyde Fisher. No sig natures appear on the form. See JA 126. Q Exhibit 26, 9 same question. A No. Q 27? 10 A No. Q 28? 11 We’re into February of ‘97. A No. Q 29, 12 February

of ‘96? A No. Q And

this attendance record , we don’ t know whe n that was

gener ated, ri ght? A No. Q You don’t

know whe

re it came from? A I know it was g enerat ed, but it d

oesn’t ha ve the y ear on it

.(Case No. 03-1819)

Q So there’s no way you could tell when or under what circumstances y ougot this? A I created it. I

mean I didn’t ge

t this from anyone. JA at 243-45 (all footnotes added). On redirect, the following clarify ing testimony from Da

wn Bukowski was developed: Q Iwould like

you to l ook back at exhibits 20, 22, 23 and 24. Do you have those? A Yes. Q And

you have indica

ted on cross examinat ion you didn’t remember all the exact cir cumstanc es under

which y ou rece ived those

document s, is that c orrect ? A That’s c orrect

. Q Are y

ou confid ent that y ou rece ived those

document s from Mr. Bennet t? A Iwork directly f

or him and I would have had to have sent them off, but do I remember exactly ? No. Q That’s a different question. Areyou confident y ou would have received them from Mr. B ennett? A Yes. Q Becau se y

ou worke d direct

ly f or him? A Yes. Q These are the kind of documents he would give y ou? A Yes. Q He’s the

one who to ld you to put Ma ry Fisher on the pay

roll? A (Paus ing) Q Let me

ask y ou in a dif

ferent way . Was it y

our job to s et up the p ay

roll?(Case No. 03-1819)

13 The district court also contended that because the g overnment ha d not char ged Da vid Bennett in Count 2 as aiding and abetting the presentation of false and material information to the Social Security Administration, the proof off ered by the

government

failed on suffic iency

ground s. We reject the district court’s belief that the failure to charg e David Bennett as an aider and abettor under 18 U.S.C. § 2 comprised the government’s case. Rather, we find that the evidence presented by the government was sufficient under the r equired Jackson

v. Virgini a standard for a

rational jury to find that t

he Defe ndant-A ppellee David Bennet t knowingly c aused tobe made f alse stat ements to the Social Security Administration. A Yes. Q For the person? A Yes. Q And

Mr. Bennett was the person who would hav e you set up payroll for various people. A Yes. Q You said on cross examination every thing had to run by his de sk. A Yes. Q In order to ge

t to you? A Yes. JA at 254-55. We disagree with the district court’s assessment of Da wn Bu tk ow sk i’ s t es ti mo ny. Cl ea rl y,

a jury would have be en justified in reasonably concluding that her testimony supported Clyde Fisher’s testimony that Bennett orc hestrated and implemented the plan to permit Cly de Fisher to drawDIB and still dr

aw wag es from Labadie by su bstituting his wife as the apparent wage earner. 13 V. Conclus ion. We find the court er

red in granting Bennett’s Rule 29 motion. This case is re manded to the(Case No. 03-1819)

dist rict c ourt t o rein state the ju ry’s guilt y verdict and fo r sent encin g.