United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
JUDGMENT OF ACQUITTAL OR NEW TRIAL
CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE.
the court is Defendant Kenneth Dixon's motion for
judgment of acquittal or for a new trial. For the reasons
explained below, Defendant's motion is denied.
Kenneth Dixon was charged in the First Superseding Indictment
with the following offenses: Count I, conspiracy to defraud
the United States, in violation of 18 U.S.C. §371; Count
II, use of counterfeit access devices, in violation of 18
U.S.C. §1029; Count III, aggravated identity theft, in
violation of 18 U.S.C. §1028A; and Count IV, theft of
government money, in violation of 18 U.S.C. §641. The
government alleged that Defendant used stolen identities to
fraudulently obtain unemployment benefits. After a five-day
trial, the jury rendered a verdict of guilty on all four
seeks a judgment of acquittal pursuant to Fed. R. Crim. P. 29
or, in the alternative, a new trial pursuant to Fed. R. Crim.
P. 33. In support of his motion, Defendant raises two alleged
errors: the testimony of Neil MacVicar and a proffer made by
the government during the testimony of Charles Durr. MacVicar
worked for the Michigan Health and Hospital Association
(“MHHA”) in their unemployment compensation
program. TR Vol. 2 at 4. The MHHA processed unemployment
claims for St. John Hospital. Id. at 5. The
government alleged that Defendant submitted fraudulent
insurance claims listing St. John Hospital as the former
employer. One claim was in the name of “Mitchell Perry,
” who had never actually worked for St. John Hospital.
See id. at 8-9; Govt. Ex. 3. Defendant's
RushCard records showed that direct deposits of unemployment
benefits, in the name of Mitchell Perry, went to
Defendant's RushCard account. Govt. Ex. 33.
objects to MacVicar's testimony that hospitals like St.
John are charged for the full amount of unemployment benefits
paid out. TR Vol. 2 at 11-13 (hospitals pay “dollar for
dollar on each claim that someone receives benefits
for”). Defendant contends that this testimony was not
relevant and highly prejudicial.
also objects to the government's proffer regarding the
testimony of one of his co-defendants, Charles Durr. In 2013,
Durr made a statement to federal agents that an individual
known as “Tank” taught him and Carl Lesley how to
file fraudulent unemployment claims. Durr stated that he and
“Tank” were arrested in 2012 and, at that time,
he learned that Tank's real name was Kenneth Dixon. Durr
pleaded guilty in this matter and was sentenced to twenty-one
months in prison on March 31, 2015.
government called Durr to the witness stand at
Defendant's trial on May 17, 2017. Durr stated that he
did not “recall” meeting an individual by the
name of Tank. TR Vol. 5 at 5-6. The government then attempted
to refresh Durr's recollection by asking him about the
agent's report of his interview in 2013. Defendant
objected that the statement was not written by Durr, and that
the government had not laid a proper foundation. Id.
at 6-7. The court indicated that the government “heard
the objection and now why don't you make a
proffer.” Id. at 7. In response, the
government stated that Durr would testify that Tank showed
him how to file unemployment insurance claims and that he is
“100 percent certain” that Dixon is the
individual known as Tank. Id. at 7. Defendant
objected and moved for a mistrial. The court denied the
motion for mistrial, but also did not permit Durr to testify
further, except to allow for cross examination. Id.
may enter a judgment of acquittal if “the evidence is
insufficient to sustain a conviction.” Fed. R. Crim. P.
29(a). In analyzing a motion for acquittal,
this court does not “weigh the evidence or ...
determine the credibility of the witnesses.” Rather,
the burden of this court is to evaluate whether, viewed in a
light most favorable to the government, there is sufficient
evidence for any rational trier of fact to have found the
essential elements of a crime beyond a reasonable doubt. This
court “will reverse a judgment for insufficiency of
evidence only if this judgment is not supported by
substantial and competent evidence upon the record as a
whole, and . . . this rule applies whether the evidence is
direct or wholly circumstantial.”
United States v. Turner, 995 F.2d 1357, 1362
(6th Cir. 1993) (citations omitted).
provides that the court may grant a new trial to the
defendant “if the interest of justice so
requires.” Fed. R. Crim. P. 33. “The defendant
bears the burden of proving the need for a new trial and such
motions should be granted sparingly and with caution.”
Turner, 995 F.2d at 1364. “A motion for a new
trial can be premised on the argument that the ‘verdict
was against the manifest weight of the evidence, ' and it
can be premised on the argument that ‘substantial legal
error has occurred.'” United States v.
Callahan, 801 F.3d 606, 616 (6th Cir. 2015)
argues that, absent the allegedly objectionable testimony
from MacVicar and the government's proffer regarding
Durr's testimony, the evidence at trial was insufficient
to sustain his conviction. Defendant's argument is
without merit. Defendant has not demonstrated that the
government failed to present sufficient evidence of the
essential elements of the crimes charged. Indeed, the
government introduced sufficient evidence to support
Defendant's conviction, including the testimony of