GOVERNMENT’S BRIEF OPPOSING DEFENDANT’S...

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,No. 1:11-CR-257

Plaintiff,Hon. Gordon J. Quist

v. U.S. District Judge

GERALD EUGENE SINGER,

Defendant._____________________________/

GOVERNMENT’S BRIEF OPPOSING DEFENDANT’SRULE 29(a) MOTION FOR JUDGMENT OF ACQUITTAL

The United States of America, by and through its attorneys, United States Attorney Patrick

A. Miles, Jr., and Assistant United States Attorneys Michael MacDonald and Christopher O’Connor,

submits this brief in opposition to defendant’s oral Rule 29(a) motion for judgment of acquittal on

the Superseding Indictment.

I. Legal Standard

A motion for judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal

Procedure is “a challenge to the sufficiency of the evidence.” United States v. Jones, 102 F.3d 804,

807 (6th Cir. 1996). This Court must determine whether, “‘after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” See United States v. Russell, 595 F.3d 633, 644 (6th Cir.

2010) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In making this determination, the

Court is to consider the record as a whole, including both direct and circumstantial evidence. See

United States v. Kone, 307 F.3d 430, 434 (6th Cir. 2002).

“The United States may ‘meet its burden through circumstantial evidence alone, and such

Case 1:11-cr-00257-GJQ Doc #127 Filed 03/18/13 of 54 Page ID#667

evidence need not exclude every possible hypothesis except that of guilt.’” United States v. Alvarez,

266 F.3d 587, 596 (6th Cir. 2001) (quoting United States v. Salgado, 250 F.3d 438, 446 (6th Cir.

2001)). “[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in

cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent

parts.” Bourjaily v. United States, 483 U.S. 171, 179-80 (1987). The uncorroborated testimony of

an accomplice is sufficient to sustain a verdict of guilty. See United States v. Owens, 426 F.3d 800,

808 (6th Cir. 2005); United States v. Sherlin, 67 F.3d 1208, 1214 (6th Cir. 1995); United States v.

Gallo, 763 F.2d 1504, 1518 (6th Cir. 1985).

The Court does not consider the credibility of witnesses or the weight that should be given

to the evidence. See United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005); United States v.

Levy, 904 F.2d 1026, 1032 (6th Cir. 1990) (citing Glasser v. United States, 315 U.S. 60, 80 (1942)).

Issues of witness credibility are strictly for the jury to determine. United States v. Carter, 355 F.3d

920, 925 (6th Cir. 2004); United States v. Wynn, 987 F.2d 354, 358 (6th Cir. 1993); United States

v. Evans, 883 F.2d 496, 501 (6th Cir. 1989); see also United States v. Blasco, 581 F.2d 681, 684-85

(7th Cir. 1978) (“The trial judge is deemed to have no special expertise in determining who speaks

the truth.”) The trial court “may neither weigh conflicting evidence nor consider the credibility of

witnesses.” United States v. Adamo, 742 F.2d 927, 934-35 (6th Cir.1984) (“attacks on witness

credibility are simply challenges to the quality of the government’s evidence and not to the

sufficiency of the evidence.”)

The defendant’s intent is a question for the jury, not a trial court evaluating a Rule 29 motion.

The general rule is that “‘intent may be inferred from the totality of circumstances surrounding the

commission of the prohibited act.’” United States v. Al-Zubaidy, 283 F.3d 804 (6th Cir. 2002)

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(quoting United States v. Stagman, 446 F.2d 489, 493 (6th Cir.1971) and citing Washington v. Davis,

426 U.S. 229, 253 (1976) (“Frequently the most probative evidence of intent will be objective

evidence of what actually happened rather than evidence describing the subjective state of mind of

the actor. For normally the actor is presumed to have intended the natural consequences of his

deeds.”); Washington v. Davis, 426 U.S. 229, 253 (1976) (“Frequently the most probative evidence

of intent will be objective evidence of what actually happened rather than evidence describing the

subjective state of mind of the actor. For normally the actor is presumed to have intended the natural

consequences of his deeds.”); United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992) (the

“general intent” of a defendant must be proved by “objectively looking at the defendant’s behavior

in the totality of the circumstances”); and Goldman v. Anderson, 625 F.2d 135, 136 (6th Cir.1980)

(“[I]ntent ... may be inferred from the totality of circumstances disclosed by the testimony. Such

intent may be inferred from the nature, time or place of the defendant’s acts....”)).

II. Statutory Elements and Factual Analysis

Given the length of the trial, the number of witnesses called by the United States (more than

90), and the volume documents admitted into evidence, this brief highlights key evidence in support

of each charge in the Superseding Indictment. It is not intended to be a complete recitation of all

evidence. The United States incorporates by reference its trial brief (docket no. 88) and proposed

jury instructions (docket no. 89), which explain in more detail the essential elements of the offenses.

A. Count 1: Mail Fraud (Arson For Profit) - 18 U.S.C. § 1341

The United States must establish the following:

(1) The defendant knowingly participated in or devised a scheme to defraud in order

to obtain money or property, that is, an “arson for profit scheme;”

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(2) The scheme included a material misrepresentation or concealment of a material

fact;

(3) The defendant had the intent to defraud; and

(4) The defendant used the mail or caused another to use the mail in furtherance of

the scheme.

See Sixth Circuit Pattern Instruction 10.01 (2011) (citing Neder v. United States, 527 U.S.1 (1999);

United States v. Gold Unlimited, Inc., 177 F.3d 472 (6th Cir. 1999); United States v. Frost, 125 F.3d

346 (6th Cir. 1997)). Direct evidence of fraudulent intent is not necessary; where sufficient

circumstantial evidence is presented, the jury may properly infer that the defendant was culpably

involved from his conduct, statements, and role in the overall event. United States v. Stull, 743 F.2d

439, 442 (6th Cir. 1984). A scheme to defraud includes “any plan or course of action by which

someone uses false, deceptive, or fraudulent pretenses, representations, or promises to deprive

someone else of money.” United States v. Jamieson, 427 F.3d 394, 402 (6th Cir. 2005). The United

States is not required to show that the victim “relied” on the defendant’s false statement, was actually

deceived by the scheme, or that the scheme actually succeeded. United States v. Daniel, 329 F.3d

480, 486 (6th Cir. 2003); United States v. Wagner, 382 F.3d 598, 613 (6th Cir. 2004) (Congress

outlawed the fraudulent scheme, not the completed fraud).

The government does not have to show that the defendant actually used the mails, but must

show “that the defendant acted with knowledge that use of the mails would follow in the ordinary

course of business, or that a reasonable person would have foreseen use of the mails.” United States

v. Cantrell, 278 F.3d 543, 546 (6th Cir. 2001). The mailing “need only be closely related to the

scheme and reasonably foreseeable as a result of the defendant’s actions.” Frost, 125 F.3d at 354

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(citation omitted). As a general rule, paperwork sent in connection with an insurance claim is

viewed as a “mailing in furtherance” of an underlying mail fraud. United States v. Hebshie, 549 F.3d

30, 36 (1st Cir. 2008). This includes routine letters that are part of “the criss-cross of mailings that

would reasonably be expected when false claims are submitted to insurance companies, are

processed, and are ultimately paid, thereby making the fraud successful.” Id. A mailing sent by an

insurance company will support the “mailing in furtherance” element, if the “mailing furthered the

processing of the defendant’s claim.” United States v. Koen, 982 F.2d 1101, 1108 (7th Cir. 1992);

see also United States v. McClelland, 868 F.2d 704, 708 (5th Cir. 1989) (routine insurance letters

which “further the processing of the defendant's claim” satisfy mailing element). Even such a simple

letter as one establishing a time and place for a deposition has been held to be a mailing in

furtherance of a mail fraud. Koen, 982 F.2d at 1108.

The evidence at trial demonstrates that defendant Singer has engaged in an “arson for profit”

mail fraud scheme. Over the last several weeks, the United States proved that defendant Singer is

a landlord in the Muskegon, Michigan area, who has owned a number of investment, rental, and

commercial business properties. The jury heard that, between 1993 and 2007, defendant Singer

acquired a legal interest in numerous properties at low prices and caused replacement cost insurance

to be placed on those properties in amounts significantly greater than the acquisition price. During

this period of time, the jury heard that nine (9) properties in which defendant held a financial interest

suffered significant damage from serious fires. Defendant averaged a serious fire at one of his

properties every two years. Direct and circumstantial proof established that the nine fires were

intentionally set arson fires.

Defendant’s own records and statements show that he filed, participated in, and/or benefitted

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from insurance claims filed for those fire losses. Defendant Singer has realized over $700,000 in

insurance company payments as a result of the nine fires, after having spent less than $300,000 to

purchase those properties. None of those properties were rebuilt or repaired by defendant Singer.

Rather, defendant simply walked away from the properties, at times by filing a “quit claim deed”

transferring all of his rights, title, and interest in the property to someone else. (Gov. Ex. 1.19, 9.8)

When an insurance company declined coverage, defendant Singer retained attorney Curtis Mabbitt

to file a civil lawsuit against the insurer demanding payment for the fire loss. All but one of those

lawsuits (2608-2614 7th Street, Muskegon Heights) resulted in insurance payments to defendant

Singer. The following chart summarizes the evidence of Defendant’s financial interest and the

payout on those properties:

Fire Location Fire Date PurchasePrice

InsuranceDemand

Payment

530 Elliott St.Grand Haven, MI

03/01/1993 $16,000 $26,153 $25,903

2809 Hoyt St.Muskegon Heights, MI

07/23/1995 $7,000 $60,665 $60,665

3101 8th St.Muskegon Heights, MI

08/25/1996 $6,000 $45,800 $7,500

2820 Peck St.Muskegon Heights, MI

09/01/1997 $150,000 $325,000 $40,000

1292 E. BroadwayNorton Shores, MI“The Fair” Fabric Store

06/20/1999 $49,000 $657,000 $500,000

2340 Wood St.Muskegon Heights, MI

08/22/2002 $12,000 $105,000 Six properties inGary, Indiana

1019 E. 35th PlaceGary, Indiana

06/21/2006 $10,000 $40,405 $17,500

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Fire Location Fire Date PurchasePrice

InsuranceDemand

Payment

250 Myrtle St.Muskegon, MI

11/09/2006 $12,151 $69,000 $59,196

2608-2614 7th StreetMuskegon Heights, MI

08/28/2007 $33,269 $273,000 (-$4,000)

Totals $295,420 $1,602,023 $706,765

(Gov. Exs. 1.42a, 2.59a, 3.16a, 4.54a, 5.98a, 6.23a, 7.34a, 8.20a, 9.25a)

The federal criminal investigation commenced in April 2009 and defendant has not

experienced any fires at his investment properties since agents from the Bureau of Alcohol, Tobacco,

Firearms and Explosives (“ATF”) began interviewing witnesses in the Muskegon area. By June

2009, defendant voluntarily dismissed his lawsuit against Farm Bureau Insurance pertaining to his

last fire, a four-unit apartment building at 2608-2614 Seventh Street, Muskegon Heights, Michigan,

and paid $4,000 of the victim insurance company’s legal expenses.

Three witnesses testified at trial that they intentionally burned properties on behalf of either

defendant Gerald Singer or defendant’s son, Mark Singer. Additionally, three witnesses testified that

Defendant Singer solicited their assistance in burning other properties. The record evidence

establishes that defendant Singer had a financial interest in each of those six properties.

First, Andrew Jones testified that he intentionally set fire to the rental property at 1019 E.

35th Place in Gary, IN, on June 21, 2006, after he had a conversation with defendant’s son, Mark

Singer. Mr. Jones testified that he told Mark Singer he could not afford the property. Jones said that

Mark Singer told Jones to burn it down and that Jones would receive money. Jones explained to

the jury that he intentionally set the fire by using a candle and paper. Afterwards, Jones said he

received a $4,000 payment from Mark Singer after he burned the property. The government also

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introduced a check reflecting a $600 payment by defendant Singer to Andrew Jones on June 2006,

with the notation “fire.” (Gov. Ex. 3.8)

Second, Ray Haynes testified that he had a conversation with Defendant Singer in front of

2340 Wood St. in Muskegon Heights, MI, in 2002. During that conversation, Ray Haynes told

defendant that he was unhappy with the condition of the home because of problems with the floors

and roof. Haynes testified that defendant told him that he bought the property “as is,” but also said

that, if the property were to burn, “we both would come out ahead” or “we would both be winners.”

Haynes could not recall the exact wording. When Ray Haynes told Defendant that he did not know

about that, Defendant Singer told him that “it’s easier than you think,” and gave him a wink and

laughed. Ray Haynes said he had not considered setting the home on fire until this conversation

occurred. Haynes further testified that, less than one month (maybe two or three weeks) after his

conversation with the defendant, he went to the house while his family was staying elsewhere that

evening, lit a match, let the match head burn, and dropped the flaming matchstick into a trash can

in the kitchen near the living room.

The jury also heard testimony that, before Ray Haynes set the fire, he told his then-fiancee,

Stacey Tyler, about the conversation he had with defendant Singer before the fire. Stacey Haynes1

testified that she recalled Ray telling her about such a conversation, which was the first time Ray

mentioned a plan to set a fire. Stacey’s recollection was that Ray told her Defendant’s son, Mark

Singer, was the person who had the conversation with Ray. Stacey admitted that she was not present

for the actual conversation. Stacey further testified that, less than one month after Ray told her about

the conversation, Stacey Tyler drove Ray Haynes to the home so that Ray could start the fire. Stacey

Stacey testified that she divorced Ray and remarried a man with the last name Haynes. 1

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testified that she did not tell law enforcement about the pre-fire conversation between Ray and Singer

until much later.

The insurance company paid out more than $100,000 on this fire loss. Ray Haynes testified

that when he delivered the $31,500 land contract payoff check to defendant Singer and Mark Singer,

they both told him “good job.” (Gov. Exs. 4.25, 4.34) Haynes said that Mark Singer was not upset.

Third, Ken Williams testified that defendant Singer solicited him to burn down 1292 E.

Broadway, Norton Shores, MI, (known as “The Fair”) fabric store, in exchange for $20,000 cash.

Mr. Williams testified that he had more than one conversation with defendant Singer about Singer’s

interest in burning down The Fair. Mr. Williams said that defendant Singer provided him with a key

to the business, told him that he also would leave a door open, and that he was going to Chicago until

after the fire. Mr. Williams testified that defendant Singer told him to use cans of a flammable

liquid, which was described as an adhesive material, to set the fire. Defendant instructed Mr.

Williams to pour the flammable contents inside building on the weekend when the store was closed.

Mr. Williams testified that he went inside The Fair early that Sunday morning when the

business was closed, poured the flammable liquid all over the building, and started the fire with a

match. Afterwards, Mr. Williams said that defendant Singer gave him a bag containing $20,000 in

cash consisting of $100s, $50s, and $20s. Michigan State Police fire investigator Gerald Briolat

testified that his findings at the fire scene in 1999 are consistent with Ken Williams’ more recent

admissions concerning the fire. Specifically, Mr. Briolat testified that an empty aluminum container

was found at the scene and a piece of foam recovered from the scene had a burn pattern consistent

with a flammable substance splashing onto the foam.

Mr. Williams’ testimony that defendant Singer was responsible for the arson was

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corroborated by the testimony of Alan Gurwitz, who has known defendant for about 25 years. Mr.

Gurwitz testified that he had a conversation with defendant Singer in 1999. When Mr. Gurwitz

asked defendant how he was doing, defendant replied: “I’ll have to tell you after this weekend.”

That same weekend, Mr. Gurwitz learned that The Fair burned to the ground. When Mr. Gurwitz

learned that defendant Singer was being prosecuted, he came forward and advised law enforcement

of the conversation.

Mr. Williams also testified that defendant Singer solicited him to set fire to the “Bruce

Motel” at 2820 Peck, Muskegon Heights, MI, which at the time was owned by Defendant Singer.

Mr. Williams declined, and defendant told him that he would find someone else to set the fire.

Sometime after that conversation, Mr. Williams saw a newspaper story about the fire that destroyed

the motel. Williams testified he had a conversation with defendant Singer about the fire during

which defendant said that he had gotten it done.

In addition to the three fires intentionally set by Jones, Haynes, and Williams, the United

States introduced evidence that defendant Singer attempted to burn two other properties in which

he held a financial interest by soliciting tenants to start a fire at each of those properties. Both

attempted fires were alleged in Count 1 of the Superseding Indictment as attempted fires in

furtherance of the mail fraud scheme:

Derrick Watkins, a tenant at defendant’s rental property located at 2736 8th Street,

Muskegon Heights, MI, testified that he asked defendant to loan him some money so that he could

buy and sell some properties. Mr. Watkins testified that defendant told him that he could make some

money on his own by having a fire. Defendant Singer encouraged Mr. Watkins to insure his contents

at the rental property, which Mr. Watkins did with defendant Singer’s assistance, in the amount of

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$35,000. (Gov. Ex. 16.11) Testimony and documentary evidence indicate that defendant Singer

even paid for Mr. Watkins’ contents coverage, and told Watkins not to say anything because “little

birds might hear.” Defendant Singer told Mr. Watkins to leave a stove on and leave town. Mr.

Watkins thought about going through with the plan, but his wife, Priscilla Watkins, told him not go

through with it.

Mr. Watkins’ testimony was corroborated by his ex-wife, Priscilla Watkins, who testified that

her husband told her about defendant Singer’s plan. Ms. Watkins further testified that she

confronted defendant Singer and told him that it was wrong to encourage her husband to burn down

the rental property. Ms. Watkins stated that defendant did not refute what she had said to him.

Monica Frierson, a land contract tenant at defendant’s property located at 307 E. Columbia,

Muskegon Heights, MI, testified that defendant Singer told her that he could have his workers

destroy that property by fire to make money because she had it insured. Defendant Singer told her

it could be done by leaving lit candles near newspapers in the basement. Defendant Singer took

photographs of her property with a camera for the planned insurance claim. Ms. Frierson ultimately

declined the invitation to burn the property. Ms. Frierson alerted the Muskegon Heights police to

defendant Singer’s solicitation in an “excited utterance” when police were called to diffuse the verbal

confrontation she was having with defendant Singer after he removed all of her belongings from the

residence. Her testimony was corroborated by Muskegon Heights Police Sgt. Gary Cheatum.

In addition to the testimony of witnesses who intentionally set the fires at 1019 E. 35th Place,

2340 Wood, and 1292 E. Broadway (The Fair), and the witness testimony concerning the two

attempted fires, the government proved through circumstantial evidence that the following fires were

involved in defendant’s mail fraud scheme:

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2608-2614 7th Street, Muskegon Heights, MI: Defendant’s four-unit apartment building

at 2608-2614 7th Street in Muskegon Heights, Michigan was severely damaged by an intentionally

set fire that originated inside the closet of a vacant and otherwise empty apartment unit. The jury

heard testimony from two fire origin and cause experts concerning the origin and cause of this fire.

Both Muskegon Heights Fire Department Chief Christopher Dean and Timothy Raha, the

independent expert hired by the insurance company, testified that, in their expert opinion, the fire

started in the closet of a second floor bedroom (apartment 2612) and that it was an intentionally set

fire. The jury also saw photographs of the evidence at the fire scene and observed firsthand in the

courtroom a large partially burned wood log that was found inside the closet. (Gov. Ex. 1.22) The

expert witnesses described the point of origin in the closet as a “campfire” or a “bon fire” comprised

of sticks, logs, and layers of cardboard and paneling.

The jury also heard testimony from tenant Robert Gordon that he observed defendant Singer

at the four-unit apartment building between 4:00 and 5:00 p.m., several hours before the fire was

reported to the fire department. Mr. Gordon testified that he saw defendant Singer walking toward

the back door of apartment 2612 and heard defendant inside of that apartment for several minutes.

Investigators testified that defendant Singer initially told them that he had not been inside apartment

2612 the afternoon before the fire was reported. Defendant Singer admitted to investigators and

Richard Guider (the insurance adjuster) that he had checked the door to apartment 2612 the

afternoon before the fire prior to leaving for Chicago and that it was locked and secure. Defendant

told investigators he was the only one with keys to apartment 2612. However, the jury heard that

defendant Singer later contradicted himself when he told Mr. Raha that he had been inside of the unit

the day of the fire and turned on a light inside the bedroom where the fire originated. Mr. Raha

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testified that, when he told the other investigators this contradictory information in the presence of

defendant, Singer quickly recanted and claimed he had only checked the door and not been inside

the unit for some time. When defendant filed an insurance claim, he told the insurance company he

believed the fire was caused by “arson” or “electrical.” (Gov. Exs. 1.7, 1.8)

Trial evidence further demonstrated that, prior to the fire, defendant Singer had been trying

to sell the four-unit apartment building. Realtor Mel Black testified that Singer listed the property

on the Multiple Listing Service (“MLS”) in July 2006 for $239,900. (Gov. Ex. 1.38) Having

received no real interest in the property, defendant Singer lowered the listing price every few months.

By June 2007, defendant Singer lowered the listing price to $139,900. Mr. Black testified that he

could recall no offers made on the property, even at $139,000. In August 2007, after the building

burned, Mr. Black said that defendant Singer contacted him to tell him that the listing could be

cancelled. Mr. Black described defendant’s tone of voice as “euphoric.”

The building was extensively damaged by the fire and was not repaired or rebuilt. Instead,

defendant Singer paid his plumber, Murray Vanderstelt, $1,000 to take possession of the badly

damaged four-unit apartment building by quit claim deed. (Gov. Ex. 1.19) Vanderstelt testified that

he later gave the property away to someone else when he learned the building was to be demolished

and that the city would hold him responsible for the demolition cost.

Defendant Singer sought more than $270,000 in insurance payments from Farm Bureau

insurance company for the fire loss at 2608-2614 7th Street. (Gov. Ex. 1.9) Attorney Steve Willison

testified that defendant Singer provided sworn testimony in an “Examination Under Oath” on

October 30, 2007. (Gov. Ex. 1.41) When Mr. Willison asked about prior fires, defendant Singer

failed to disclose the fires and insurance payments he received for the properties at: 530 Elliott

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($25,903); 3101 8th Street ($7,500); or the $40,000 he received from Tom Peel after the two motels

on Peck Street burned. Attorney Willison also testified that defendant Singer’s federal tax returns

showed that defendant reported losses on the four-unit rental property in 2005 and 2006. (Gov. Exs.

1.46, p.5; 1.47, p.4) Defendant also claimed a $4,441.00 loss on the property on his 2007 tax return,

reporting only $2,478 in rent in the first eight months before the fire. (Gov. Ex. 12.9, p.15)

When Farm Bureau denied defendant Singer’s claim, he filed a lawsuit in July 2008 against

the company. (Gov. Ex. 1.10) The parties were in the process of conducting discovery and a

December 9, 2009, jury trial date was set. (Gov. Exs. 1.14, 1.17) In April 2009, the ATF began

questioning witnesses in Muskegon Heights about a series of fires that occurred, including the fire

that destroyed “The Fair.” Two months later, defendant Singer voluntarily dismissed his lawsuit

with prejudice and agreed to pay Farm Bureau $4,000 toward its legal expenses in defending the

lawsuit. (Gov. Exs. 1.18, 1.28)

250 Myrtle St., Muskegon, MI: The jury heard evidence that defendant Singer purchased

this property with a partner, James Brown, in March 2006. (Gov. Ex. 2.2) Defendant’s cost was

$6,151.25, because Mr. Brown contributed $6,000 toward the purchase price. (Gov. Ex. 2.2) No

insurance was placed on the property until August 15, 2006, when $69,000 of dwelling replacement

cost coverage was purchased. (Gov. Ex. 2.13) Laborer Arnold Jackson testified that the building was

unoccupied and that he was doing remodeling on the home using hammers and flat irons.

On November 9, 2006, the property was destroyed by fire at about 10:00 p.m. (Gov. Ex.

2.58c) Muskegon police Sgt. Michael Tripp testified that he was the first person to discover the fire

and observed smoke but no visible flames. Sgt. Tripp testified he reported the fire at 9:52 p.m. He

saw no gas or electricity service connected to the home, and observed no sign of forced entry. Mr.

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Jackson, the laborer, testified that no work had been done at the property for at least a week.

Muskegon Fire Marshal Major Metcalf testified that the fire originated on the second floor

of the structure. He was unable to determine the cause of the fire. Major Metcalf interviewed

defendant Singer on November 13, 2006. Defendant told Major Metcalf the last time he was at the

property was three weeks before the fire, and that he only knew of the fire because James Brown

called him. Defendant said he was told the fire started around 8:00 p.m. Defendant also told Metcalf

that he had keys to the property, that nobody was mad at him, that everyone loved him, and that he

had a fire 25 or 30 years ago. Joel DeKraker, a former fire marshal with the Michigan State Police,

testified that the origin of the fire was on the second floor of the unoccupied house and that there was

no natural cause for this fire. Using a hypothetical question format, DeKraker testified that it was

an arson fire.

Foremost insurance claims representative William McGovern testified that he spoke with

defendant Singer on November 10, 2006. Defendant told McGovern that he learned of the fire at

about 10:00 p.m., but that the fire occurred at about 8:00 p.m. Mr. McGovern testified that

defendant Singer told him that he had not been at the property for weeks prior to the fire. However,

Elton Williams testified that he saw defendant carrying large and heavy objects out of the house at

250 Myrtle on the morning of the day the fire occurred. Defendant also told McGovern that he has

not had any other fires, provided him with a document claiming that his net worth was $2.4 million

and that 250 Myrtle would generate an annual cash flow of $202,000 per year. (Gov. Ex. 2.50)

Arnold Jackson also testified that James Brown took him to the mall around closing time,

9:00 p.m. Mr. Brown made one purchase then received a phone call that his house was on fire.

Thomas “Jeff” Green testified that he knew James Brown. Mr. Green received a phone call after

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10:00 p.m. from a Mr. Grey about a fire at 250 Myrtle. Mr. Green immediately tried to contact

James Brown to tell him the property had burned. Cell phone records indicated that Mr. Green likely

reached Mr. Brown at about 11:00 p.m. (Gov. Ex. 2.23)

In December 2006, defendant Singer demanded $69,000 of insurance coverage for the fire

loss at the property. (Gov. Ex. 2.29) In January 2007, Foremost insurance paid defendant $59,196

for the fire loss at 250 Myrtle. (Gov. Ex. 2.31)

On February 1, 2007, defendant Singer writes a check to “CASH” in the amount of

$21,122.00, with a notation “JB.” (Gov. Ex. 2.34) Fifth Third Bank employee Pamela Gilmore

testified that she knew defendant Singer and that on February 1, 2007, defendant had asked for

$21,000 in U.S. currency in “small denominations.” Ms. Gilmore asked for his identification, and

defendant then requested an $8,000 cashier’s check with the balance in cash.

1019 E. 35th Place, Gary, IN: In addition to the testimony of Andrew Jones summarized

above, the jury heard evidence and reviewed documents proving that defendant Singer was partners

with his son, Mark Singer, on several rental properties in Gary, Indiana, including 1019 E. 35th

Place. (Gov. Exs. 3.3, 3.9) Mark Singer’s Chicago real estate investment company, Aarmor Realty

and Investments LLC (“Aarmor Realty”), insured the dwelling in December 2003 for $78,000

through Ohio Casualty Insurance Company. (Gov. Ex. 3.5) The “first mortgagee” on the policy was

listed as Zebrina and Andrew Jones.

Mark Cohill, a fire investigator with the Gary Fire Department, testified that he examined

the scene and found no evidence of a break-in and that nobody was home when the fire occurred.

Cohill testified it was his opinion that the cause of the fire could not be determined even though the

tenant reported the fire as accidental. Cohill later learned of the information provided by Andrew

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Jones and testified that Mr. Jones’ statement was consistent with what he observed at the fire scene.

On July 19, 2006, Ohio Casualty paid on the fire claim at 1019 E. 35th Place by check to

Aarmor Realty, Zabrina Jones, and Andrew Jones in the amount of $40,405.56. (Gov. Ex. 3.10)

Mark Singer split his portion of the insurance proceeds with defendant Singer. On July 21, 2006,

defendant Singer obtained an Armor Realty check from his son for $17,500 with a notation “1019

E. 35th Place, Gary IN Ins. proceeds.” (Gov. Ex. 3.11) Mark Singer wrote himself the same check

from his Aarmor Realty account. (Gov. Ex. 3.11) Defendant Singer admitted to IRS Special Agent

Adam Billmeier that he was a business partner with Mark Singer on the Gary, Indiana property and

that “I got a piece of the action.”

ATF Special Agent James Walsh testified he contacted Andrew Jones on June 7, 2010, to

inquire about the fire. Jones initially denied setting the fire. ATF Special Agent Jane Balkema

obtained phone records revealing that Mr. Jones attempted to contact Mark Singer between 21 and

42 times on June 8, 2010. Agent Balkema further learned that, also on June 8, 2010, a Michigan

attorney contacted Mr. Jones and the call lasted almost five minutes. Records show the same

attorney contacted Mark Singer on June 8, 2010, and the call lasted five minutes. Later that day, Mr.

Jones contacts the attorney and speaks for about three minutes then attempts to call Mark Singer.

2340 Wood St., Muskegon Heights, MI: In addition to the testimony of Ray Haynes and

Stacey Haynes (nee Tyler) summarized above, the jury heard evidence that defendant was actively

involved in managing this property and had a financial interest in 2340 Wood in Muskegon Heights

at the time of the fire. Defendant’s son, Mark Singer, used his real estate investment business,

Aarmor Realty, to purchase this property in October 2001 for $12,000. (Gov. Ex. 4.2)

Ray Haynes and Stacey Tyler were purchasing the home on a land contract agreement from

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Aarmor Realty. (Gov. Ex. 4.5) The Land Contract provides that Aarmor Realty will convey the

property fee simple by a recordable deed only if the purchasers “shall first make the payments and

perform” under the contract. (Gov. Ex. 4.5) Trial evidence proves that Aarmor Realty retained legal

title to 2340 Wood Street after signing the land contract agreement.

According to trial testimony, Defendant Singer told Ray Haynes to go to an insurance agency

to sign insurance documents, which was arranged for them by defendant Singer. The renewals were

sent to the lien holder, Aarmor Realty. (Gov. Ex. 4.57) The insurance documents reflect that Mark

Singer added his name as an “additional insured” to the property effective May 30, 2002, which

insured Armor Realty’s legal interest in the property. (Gov. Exs. 4.9; 4.57) Less than three months

later, on August 22, 2002, the property was severely damaged by the fire set by Ray Haynes.

Muskegon Heights Fire Chief Christopher Dean testified that, in August 2002 when he was

a lieutenant and fire investigator, he ruled the fire accidental based in part on false information

provided by Ray Haynes. Chief Dean opined that the fire originated in a trash can in the kitchen near

the living room. In 2004, Dean obtained new information from Stacey Haynes concerning the cause

of the fire, specifically that Ray Haynes’ intentionally set the fire. Chief Dean recused himself from

any further investigation and turned the new information over to the Michigan State Police fire

investigator, Gregory Stormzand. Upon investigating the scene and interviewing Stacey Haynes,

Stormzand’s reached an opinion in 2006 that the fire origin was in the trash can in the kitchen and

that it was an intentionally set fire.

After the fire, Ray and Stacey Haynes sought and received more than $100,000 in insurance

proceeds as a result of the fire. (Gov. Ex. 4.50) Immediately upon receiving the balance of the

insurance payoff, Ray Haynes met with both defendant and Mark Singer at a restaurant in west

18


Michigan, where Ray handed them an official bank check dated June 18, 2003, in the amount of

$31,500 as final payment for 2340 Wood. (Gov. Exs. 4.25, 4.34)

In July 2003, Mark Singer drafted a letter of recommendation for Ray and Stacey Haynes that

“strongly” recommended them as borrowers and home buyers, stating that they “did an outstanding

job taking care of the house . . . .” (Gov. Ex. 4.31) Mark Singer also executed a quit claim deed

dated August 5, 2003, which transferred all of his rights, title, and interest in the property to Ray

Haynes and Stacey Tyler. (Gov. Ex. 4.32) The evidence also shows that defendant Singer and his

son then invested in the Gary, Indiana properties in 2003, including the 1019 E. 35th Place property

set ablaze by Andrew Jones. (Gov. Ex. 3.9) Defendant Singer eventually obtained $17,500 from

this fire after the insurance proceeds were received from the Gary, Indiana fire. (Gov. Ex. 3.11) The

dwelling at 2340 Wood was never repaired or rebuilt by the Haynes’, defendant, or his son.

1292 E. Broadway, Norton Shores, MI (The Fair): Documentary and testimonial evidence

was admitting showing that defendant Singer purchased this commercial business from his mother

for $49,000 in 1984. (Gov. Ex. 5.1) Between 1992 and 1994, defendant Singer reported losses each

year on the business in his federal tax returns. In 1992, defendant reported a loss of -$53,746. (Gov.

Ex. #5.16) In 1993, defendant reported a loss of -$25,975. (Gov. Ex. 5.14) In 1994, defendant

reported a loss of -$50,000. (Gov. Ex. 5.12) Richard Cunningham, defendant’s tax preparer, testified

that between 1996 through June 1999, defendant showed net losses on the business virtually every

month. (Gov. Exs. 5.11, 5.10)

Sheree Walters Lincoln testified that Defendant was attempting to sell the building to her for

$150,000 in February 1999, but that she required a Small Business Administration loan of $120,000

to complete the deal. (Gov. Ex. 5.2) Because an SBA loan required several years of tax returns for

19


the business, and defendant never provided the requested returns to Ms. Lincoln, the deal never

closed. Ms. Lincoln testified that the deal felt dead. Mr. Cunningham testified that defendant Singer

never gave him enough documents to complete the tax returns.

Defendant’s insurance agent, David Kendall, testified that a prior insurance policy on the

building lapsed, but that Defendant renewed the insurance coverage shortly before the fire. An

insurance document shows that effective May 13, 1999, defendant insured the property with

replacement cost coverage of $500,000.00, business personal property coverage of $300,000.00 and

actual loss of business income. (Gov. Ex. 5.18)

On June 20, 1999, 40 days after the insurance was purchased, the building and all its contents

were destroyed by fire. Employee Cheryl Musick testified that defendant Singer was the last person

in the store the day before the fire and that he sent employees home early. She recalled that

defendant Singer had previously been meeting with a man who scared her, and that she later

identified that person in a photo lineup. Retired Norton Shores detective Jerry Rathsburg told the

jury the man Ms. Musick identified was Ken Williams. As noted above, Mr. Williams admitted to

starting the fire at the request of, and under the instruction of, defendant Singer in exchange for a

$20,000 cash payment.

Michigan State Police fire investigator Gerald Briolat testified that in June 1999, he

concluded the fire originated in the “foam room” and was consistent with an accelerant fire. Briolat

said he found an empty can and evidence consistent with a pouring or splashing effect. An

electrician, James Weiler, testified that he found no signs of fire origin in the electrical panel or any

electrical components he was able to examine.

Defendant filed an insurance claim demanding $657,889 for the building and contents. (Gov.

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Ex. 5.28) Public adjuster Donald Marinoff testified that defendant Singer decided not to seek “lost

income” payments. When the insurers balked at paying, defendant Singer filed a lawsuit demanding

coverage. (Gov. Ex. 5.33) Attorney Michael Small represented the Hartford, and he testified that

his client was trying to pay nothing on the claim. Evidence established that defendant ultimately

obtained $500,000 in insurance payments on the fire loss. The store was never rebuilt.

2820 Peck, Muskegon Heights, MI (the motels): Evidence at trial proved that defendant

Singer purchased the two motels at 2818 and 2820 Peck for $150,000 in October 1995. (Gov. Exs.

6.1, 6.3) Accountant Richard Cunningham testified that defendant Singer never told him that he

owned the two motels. In 1996, Defendant entered into a transaction with businessman Thomas Peel

(who was doing business as Dinah, Inc.) that resulted in a swap of the motels for Peel’s convenience

store called “Coops Dock and Deli” in Fruitport, Michigan. Mr. Peel testified the deli was not

performing well, and that the sale agreement with defendant Singer allowed Peel to back out of the

transaction. There was no similar provision for defendant. (Gov. Ex. 6.10) Businessman Jeff Smith

testified that he was buying the motels on a land contract from defendant Singer, and that the motels

were profitable. Mr. Smith further testified that he has owned 300 real estate properties in the

Muskegon area, and has never had a fire at a rental property. Dinah Inc. obtained insurance on the

motels in 1997 in the amount of $340,000. (Gov. Exs. 6.17, 6.18)

On September 1, 2007, the motels were destroyed by fire. The motel manager, Dale Beard,

testified that he called 911 as soon as the fire started. One of the residents of the motel, Joyce

Burnett, told Beard that a bed caught fire while someone was using drugs in the room. Ken Lay,

then-Fire Marshal for Muskegon Heights, testified that the fire department was three blocks from

the motels. Lay testified that in 1997 he concluded that the cause of the fire was “undetermined”

21


because the advanced state of the fire was inconsistent with an observed ignition fire.

Mr. Peel testified that defendant Singer called him at home (which he had never done before).

Defendant told Peel about the fire at the motels and said, “Congratulations, the two motels burned.”

Mr. Peel said the phone call was unusual and described defendant’s mood as “elated.” In March

1998, after Auto Owners Insurance agreed to pay $325,000 in settlement of the insurance claim,

defendant Singer filed a lawsuit against Thomas Peel alleging that Mr. Peel committed fraud in the

“swap” transaction. (Gov. Ex. 6.15) In March 1999, defendant Singer obtained $40,000 from Mr.

Peel in settlement of his lawsuit. (Gov. Ex. 6.24)

3101 8th St., Muskegon Heights, MI: Trial testimony established that defendant Singer had

purchased this home for about $6,000 and was selling this property to Delaina Stauter on a land

contract. Ms. Statuer obtained insurance on the property from American States Insurance while she

was purchasing it from the defendant. (Gov. Ex. 7.4) Ms. Statuer eventually gave her interest in the

property back to defendant Singer by executing a quit claim deed dated June 29, 1996, which was

filed in Muskegon County on August 6, 1996. (Gov Ex. 7.30) On August 22, 1996, a “Notice of

Cancellation” was prepared by the insurance company and sent to Ms. Stauter and the defendant.

(Gov. Ex. 7.5) The document warned defendant that coverage would cease on September 8, 1996.

Defendant admitted in a sworn affidavit that he received a copy of this notice. (Gov. Ex. 7.17)

Three days later, on September 25, 1996, the property was severely damaged by fire while

occupied by Ms. Stauter’s 22-year old babysitter and her three young children, approximate ages 8,

2, and 10 months. The fire was reported at approximately 2:00 a.m. The babysitter, Danielle

Johnson, testified that she heard a noise outside, which prompted her to look outside the living room

window. Ms. Johnson testified that she saw a white male standing in the street by a trail of fire in

22


the grass. She described the person as wearing dress slacks, a shirt, and a tie. She was uncertain as

to the person’s age, but the person was older than she. She further testified that she later told Agent

Walsh that the person was wearing dress slacks, a dress shirt and tie, and was tall with brown hair.

The jury is entitled to assign whatever weight it feels appropriate to her description under the

circumstances in which Ms. Johnson perceived the person. Ms. Statuer testified that she and her

fiancee were out of town attending a birthday party. When they arrived home, they saw the front

porch on fire. (Gov. Ex. 7.29oo)

The jury viewed several photographs taken at the fire scene, which depicted a “trail” of fire

from the street running up to the front porch of the home. (Gov. Ex. 7.29o) The entire front porch

of the home was severely damaged by fire and fire damage spread into the front interior portion of

the home. Robert Grabinski, then-Fire Marshal and Inspector of the City of Muskegon, testified as

an expert witness concerning his fire origin and cause investigation. Mr. Grabinski testified that, in

his opinion, the origin of the fire was the front porch and a flammable liquid fire trail leading to the

street curb, and the cause of the fire was that it was intentionally set by human hands. Grabinski said

he could smell “gasoline” in the air near the structure.

Retired Muskegon Heights Police Detective Daniel Calkins testified that defendant told him

in September 1996 that he (defendant Singer) did not have insurance on the property. Detective

Calkins further testified that defendant said he eventually learned that he had insurance on the

property, and that he was “elated” to learn of the insurance coverage.

In September 1996, defendant Singer made a $50 payment on the insurance policy. (Gov.

Ex. 7.32) Defendant also filed an insurance claim seeking the limits of coverage, $45,800, and

stating that the cause of the fire was “arson by unknown person or persons.” (Gov. Ex. 7.9) When

23


the insurance company declined coverage, defendant filed a lawsuit in 1997 seeking payment for the

fire loss. (Gov. Ex. 7.10, 7.15) In that lawsuit, defendant Singer admitted that he knew before the

fire that he had insurance coverage on the property. (Gov. Ex. 7.17) After a lengthy period of

litigation, in April 2003, defendant agreed to accept $7,500.00 in full settlement of the claim, which

was paid to defendant in May 2003. (Gov. Exs. 7.35, p.4; 7.37) Defendant Singer told federal and

state investigators that he “never got a dime” of insurance money on this fire, and that only Delaina

Statuer received an insurance payment and left town with the money. (Gov. Ex. 7.27-A)

2809 Hoyt, Muskegon Heights, MI: Trial testimony and documents established that

defendant acquired 2809 Hoyt in Muskegon Heights, Michigan, in December 1991 for $7,000.

(Gov. Exs. 8.3, 8.7) The jury heard evidence that defendant Singer tried unsuccessfully to sell the

property and allowed the insurance to lapse. (Gov. Ex. 8.6) However, in April 1995, defendant

Singer obtained new insurance coverage for this rental property from Michigan Millers Mutual

Insurance Company with dwelling coverage of $82,000. (Gov. Ex. 8.6)

On July 23, 1995, 2809 Hoyt was damaged by a serious fire. Defendant Singer received

$60,665 in insurance for the fire loss. (Gov. Ex. 8.9) Robert Swanker, a lieutenant with the

Muskegon Heights Fire Department, testified that he visited the scene in 1995 and found a burned

mattress in the basement and a gasoline can. He believed the fire was “suspicious.” Defendant

never rebuilt this property and it was later bulldozed. (Gov. Ex. 8.14) In June 1997, defendant

Singer transferred all of his rights, title, and interest in the property by quit claim deed to the City

of Muskegon Heights for the sum of “a gift.” (Gov. Ex. 8.18)

530 Elliott St., Grand Haven, MI: The jury also heard evidence that defendant’s vacant

rental property at 530 Elliott Street in Grand Haven, Michigan, was seriously damaged by fire on

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March 1, 1993. (Gov. Ex. 9.1) The evidence showed that defendant Singer purchased this property

in 1991 for $16,000. (Gov. Ex. 9.9) After purchasing the property, defendant immediately entered

into a land contract agreement with Robert Mason, who was to purchase the property for about

$26,000. Mason eventually gave the property back to defendant Singer by quit claim deed dated

December 18, 1992. (Gov. Ex. 9.5) Documentary evidence shows that on January 9, 1993,

defendant Singer obtained insurance on the property from Allstate, including dwelling coverage in

the amount of $48,000. (Gov. Ex. 9.15) Less than two months later, on March 1, 1993, the vacant

property was severely damaged by a fire. (Gov. Exs. 9.6, 9.18) The fire was ruled accidental and

defendant demanded $26,153 in insurance from Allstate. (Gov. Ex. 9.14) Defendant Singer

collected $25,903 in insurance on this fire loss. (Gov. Ex. 9.19) On August 20, 1997, defendant

transferred his interest in the property to the City of Grand Haven in a quit claim deed. (Gov. Ex.

9.8) Attorney Mike Small testified that defendant Singer told him in a sworn statement that he lost

$6,000 on the Elliott Street property.

Robyn Vandenberg, a realtor, testified that when the property was vacant after it was sold to

defendant, she noticed a light bulb on inside the home on the second floor. Once or twice, Ms.

Vandenberg stopped, entered the property with a key she still had, and turned off the light. She

eventually asked defendant why the lightbulb was always left on. Ms. Vandenberg testified that

defendant told her not to turn it off anymore, and that he was “hoping it will burn.” She described

his demeanor as “joking,” so she did not report the comment. Once she learned in the newspaper

that the property suffered from a serious fire, she reported defendant’s comment to a firefighter.

Documentary evidence introduced at trial also reflects a financial motive for defendant Singer

to commit his arson for profit scheme. Defendant Singer reported the following information to the

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IRS on Line 17 concerning his rental business income:

Tax Year Reported Rental Income/Loss Gov. Exhibit

2007 -$26,124 5.65

2006 -$28,465 5.67

2005 -$21,339 5.69

2004 -$13,918 5.71

2003 -$21,137 5.73

2002 -$4,825 5.75

2001 $1,698 5.77

Despite reporting more than $114,000 in rental income losses to the Internal Revenue Service

between 2001 and 2007, defendant was materially misrepresenting to insurance companies that he

maintained a highly valuable collection of rental property assets that generated substantial annual

income. Brad Johnson of Farm Bureau insurance testified that, in 2007, defendant Singer provided

handwritten documents to insurance companies touting that his rental business had a “value” of more

than $1.5 million. (Gov. Exs. 1.44) Federal agents found a 2006 version of defendant’s valuation

document during the execution of a federal search warrant at his home, which indicates a rental

business value of $1.4 million. (Gov. Ex. 1.45) Defendant Singer also provided a similar document

to William McGovern of Foremost Insurance in connection with the claim on 250 Myrtle. (Gov. Ex.

2.50) In 2007, defendant Singer described his real estate investment business to insurance company

attorney Steve Willison as a “goldmine.” (Gov. Ex. 1.41, p.151) The evidence supports a finding

that defendant Singer was attempting to persuade the insurance companies that he had no financial

motive to set the fires by falsely and grossly overstating the value of his rental business and omitting

the fact that he had been reporting substantial losses to the IRS.

26


Defendant’s arson for profit scheme included several other material misrepresentations and

concealment of material facts. Evidence that defendant Singer’s insurance claims were materially

false appears in the Proof of Loss claim documents defendant signed under oath, by which defendant

represented to the insurers that the fire losses were not the result of any act, design, or procurement

on his part. (Gov. Exs. 1.7, 1.8, 1.9, 2.27, 2.29, 5.24, 7.9) Defendant Singer caused those documents

to be delivered to the insurance companies in furtherance of his claim. Record evidence

demonstrates that the misrepresentations and concealment of facts were material to the victim

insurance companies, as two of defendant Singer’s claims were denied on the basis that defendant

Singer withheld facts and information concerning his role in the fire loss. (Gov. Exs. 1.50, 7.15)

In particular, Brad Johnson of Farm Bureau testified that defendant Singer’s misrepresentations

concerning the cause and origin of the fire at 2608-2614 7th Street in Muskegon Heights was a basis

for the insurance companies denial of coverage. Insurance company attorney Michael Small testified

concerning the Hartford insurance company’s declination letter, which denied defendant Singer’s

claim based in part on his misrepresentation and concealment of material facts and circumstances

relating to the fire. (Gov. Ex. 5.35)

Use Of The United States Mail: Testimonial and documentary evidence proved that

defendant Singer used the United States mail service and caused others to use the United States mail

service in furtherance of his arson for profit scheme. With regard to the 2608-2614 7th Street

property, on or about September 28, 2007, defendant sent an envelope containing documents relating

to his insurance coverage and claim from Muskegon, Michigan, to Farm Bureau Insurance Company

in Grand Rapids, Michigan. (Gov. Ex. 1.7) Furthermore, attorneys Steve Willison and Curtis

Mabbitt testified that defendant Singer’s lawsuit caused several documents relating to his insurance

27


claim and civil suit to be delivered by United States mail service between September 28, 2007, and

May 7, 2009. (Gov. Exs. 1.6, 1.12, 1.13, 1.14, 1.16, 1.17)

With regard to the 250 Myrtle Street property, there was testimonial and documentary

evidence that defendant Singer caused several documents to be delivered by United States mail

between November 10, 2006, and January 22, 2007. (Gov. Exs. 2.39, 2.40, 2.41, 2.42, 2.43, 2.44,

2.45, 2.46, 2.47, 2.47, 2.48)

Additionally, the United States presented testimonial and documentary evidence establishing

that, between October 2001 and June 2006, defendant Singer used the United States mail service and

caused others to use the United States mail service in furtherance of his arson for profit scheme

relating to the fires at 3101 8th Street (Gov. Exs. 7.12, 7.13, 7.15, 7.19-7.24); 1292 E. Broadway

(The Fair) (Gov. Exs. 5.36-5.37; 5.39-5.48; 5.50-5.54); 2340 Wood St. (Gov. Exs. 4.16-4.20; 4.22-

4.24; 4.27-4.28); and 1019 E. 35th Place (Gov. Ex. 3.8). Defendant has stipulated that the

documents relating to The Hartford Safe Haven Account (Gov. Ex. 5.56) were mailed by U.S. mail

from Connecticut to the Western District of Michigan, and that the Westport Insurance Company

check for $190,000 (Gov. Ex. 5.61) was mailed by U.S. mail from Kansas to the Western District

of Michigan. (Docket No. 96) Defendant further stipulated that this evidence satisfies the

government’s burden of proof for those two interstate mailings. (Id.)

In further support, the United States incorporates the testimonial and documentary evidence

summarized in Section II.B. (use of fire to commit mail fraud) and II.C. (arson).

Thus, all of the essential elements of Count 1 are proven.

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B. Counts 2 - 7: Use Of Fire To Commit A Federal Felony (Mail Fraud) - 18 U.S.C. § 844(h)(1)

The statute provides, in pertinent part:

Whoever uses fires or an explosive to commit any felony which may beprosecuted in a court of the United States . . . shall, in addition to thepunishment provided for such felony, be sentenced to imprisonment for 10years. In the case of a second or subsequent conviction under this subsection,such person shall be sentenced to imprisonment for 20 years.

The United States must establish the following elements:

(1) The Defendant “used fire” to commit a federal felony offense (in this case, the

crime of mail fraud). For purposes of this offense, the term “use” means that the

defendant intentionally caused or set the fire or caused, aided, abetted, counseled,

commanded, induced, or procured another person to intentionally cause or set the

fire; and

(2) The Defendant committed a mail fraud.

See United States v. Martin, 523 F.3d 281, 288 (4th Cir. 2008). The defendant need not

personally set the fire and may be held criminally responsible for persuading another person

to actually set the fire. United States v. Ihmoud, 454 F.3d 887, 890 (8th Cir. 2006). The

government may use a Pinkerton liability theory in prosecuting a use of fire to commit a felony

prosecution. United States v. Gonzalez, 336 F. App’x 701, 703 (9th Cir. 2009). In United States v.

McAuliffe, 490 F.3d 526, 534-35 (6th Cir. 2007), the Sixth Circuit upheld the use of 844(h)(1) where

the prosecution charged “use of fire to commit a mail fraud” and noted that when Congress enacted

this statute, “it was recognized that fire is commonly and extensively used not only for extortion, but

for insurance fraud as well.” Id. (emphasis added). The “jurisdictional nexus is derived from the

29


underlying felony,” in this case, mail fraud. Id. at 536. Where the facts involve a commercial

business, the prosecution frequently introduces proof of a financial motive for the fire. See United

States v. Patel, 370 F.3d 108, 112-114 (1st Cir. 2004).

First, the United States incorporates the testimonial and documentary evidence summarized

in Section II.A. (mail fraud) as evidence sufficient to sustain a jury verdict on Counts 2 through 8.

The United States also provides the following evidence specific to each count:

i. Count 2: 3101 8th Street, Muskegon Heights, Michigan

The evidence supports a finding that defendant Singer intentionally caused or set the fire at

3101 8th Street, or caused, aided, abetted, counseled, commanded, induced, or procured another

person to intentionally cause or set this fire. First, the evidence points solely to arson as the cause

of the fire at this property. The jury saw photographs of the remnants of a burnt trail in the grass

leading from the street to the front porch of the property. Additionally, fire investigator Grabinski

testified that he could even smell gasoline in the air near the structure. Defendant even told the

insurance company the fire was caused by “arson.” (Gov. Ex. 7.9)

The evidence also establishes that the fire was set within a few days of the insurance

company notifying defendant that the insurance policy on the property was about to be cancelled.

(Gov. Ex. 7.5) The notice was prepared on August 22, 1996, and the property burned on August 25,

1996. Defendant received the cancellation notice shortly after he received the news from Ms. Statuer

that she wanted out of the land contract agreement and wanted to give back the property. Defendant

reacquired complete ownership of the property by quit claim deed that was filed on August 6, 1996.

(Gov. Ex. 7.30) Further, there is absolutely no evidence that the tenants, Ms. Statuer and her fiancee,

Mr. Peters, had anything to do with the fire, as they were attending a birthday party out of town while

30


Ms. Statuter’s young children were sleeping inside the home. Additionally, the jury is entitled to

evaluate and assign whatever weight it deems appropriate to the babysitter’s description of the

person standing by the curb near the fire trail leading up to the house.

The jury also heard evidence that defendant Singer made inconsistent statements concerning

his knowledge that he had coverage under the insurance property. Detective Calkins testified that,

when the fire was investigated, defendant told him he did not know that he was covered under the

insurance policy until after the fire, and that he was “elated” to learn he had insurance. Defendant

Singer later signed a sworn affidavit in which he stated that Ms. Statuer purchased the insurance on

his behalf, and that he received and relied on insurance documents before the fire. (Gov. Ex. 7.17)

Finally, the record reflects that defendant Singer told investigators in 2011 that he “never got

a dime” of the insurance money after the fire. This was flatly contradicted by they testimony of

attorneys Michael Small and Curtis Mabbitt, and documents that revealed to the jury that defendant

Singer actually obtained $7,500 in settlement of his insurance claim after years of litigation against

American States Insurance Company. (Gov. Ex. 7.35, 7.37)

ii. Count 3: 1292 E. Broadway, Norton Shores, Michigan (“The Fair”)

The evidence supports a finding that defendant Singer caused, aided, abetted, counseled,

commanded, induced, or procured Ken Williams to intentionally cause or set the fire at The Fair.

Ken Williams testified that defendant Singer asked him to burn down The Fair in exchange for

$20,000. Mr. Williams testified that he had more than one conversation with defendant Singer about

Singer’s interest in burning down The Fair. Mr. Williams said that defendant Singer provided him

with a key to the business, told him that he also would leave a door open, and that he was going to

Chicago until after the fire. Mr. Williams testified that defendant Singer told him to use cans of a

31


flammable liquid to set the fire and to do so over the weekend when the store was closed. Mr.

Williams testified that he went inside The Fair early that Sunday morning when the business was

closed, poured the flammable liquid all over the building, and started the fire with a match.

Afterwards, Mr. Williams said that defendant gave him a bag containing $20,000 in cash. Michigan

State Police fire investigator Gerald Briolat testified that his findings at the fire scene in 1999 are

consistent with Williams’ admissions concerning the fire.

Mr. Williams’ testimony that defendant Singer was responsible for the arson was

corroborated by the testimony of Alan Gurwitz, who testified that he had a conversation with

defendant Singer in 1999 during which Gurwitz asked defendant how he was doing. Gurwitz said

that defendant replied with: “I’ll have to tell you after this weekend.” That same weekend, Mr.

Gurwitz learned that The Fair burned to the ground.

Regarding mailings specific to this fire, defendant has stipulated that on or about December

15, 2002, the documents relating to The Hartford Safe Haven Account (Gov. Ex. 5.56) were mailed

by U.S. mail from Connecticut to the Western District of Michigan and that on or about December

23, 2002, the Westport Insurance Company check for $190,000 (Gov. Ex. 5.61) was mailed by U.S.

mail from Kansas to the Western District of Michigan. (Docket No. 96) Defendant further

stipulated that this evidence satisfies the government’s burden of proof for those two interstate

mailings. (Id.)

iii. Count 4: 2340 Wood, Muskegon Heights, Michigan


commanded, induced, or procured Ray Haynes to intentionally cause or set the fire at 2340 Wood.

Mr. Haynes testified that he had a conversation with defendant in front of the property in 2002 at

32


which time defendant Singer told him that, if the property were to burn, “we both would come out

ahead” or “we would both be winners.” When Mr. Haynes told defendant that he did not know about

that, defendant Singer told him that “it’s easier than you think” and gave him a wink and laughed.

Ray Haynes said he had not considered setting the home on fire until this conversation occurred.

Haynes further testified that less than one month after this conversation, he went to the house while

his family was staying elsewhere that evening, lit a match, let the match head burn, and dropped the

flaming matchstick into a trash can in the kitchen near the living room. Ray Haynes testified that

when he delivered the $31,500 land contract payoff check to defendant Singer and Mark Singer, they

both told him “good job.”

iv. Count 5: 1019 E. 35th Place, Gary, Indiana


commanded, induced, or procured another person to intentionally cause or set this fire. The jury

heard evidence and reviewed documents proving that defendant Singer was partners with his son,

Mark Singer, on several rental properties in Gary, Indiana, including 1019 E. 35th Place. (Gov. Exs.

3.3, 3.9) Andrew Jones testified that he intentionally set fire to this property on June 21, 2006 after

he had a conversation with defendant’s son, Mark Singer. Mr. Jones testified that he told Mark

Singer he could not afford the property, and that Mark Singer told Jones to burn it down and that

Jones would receive money. Jones said he intentionally set the fire by using a candle and paper and

that he received a $4,000 payment from Mark Singer. The government also introduced a check

reflecting a $600 payment by defendant Singer to Andrew Jones on June 2006, with the notation

“fire.” (Gov. Ex. 3.8) On July 21, 2006, defendant Singer obtained an Armor Realty check from

his son for $17,500 with a notation “1019 E. 35th Place, Gary IN Ins. proceeds.” (Gov. Ex. 3.11)

33


v. Count 6: 250 Myrtle Street, Muskegon, Michigan


commanded, induced, or procured another person to intentionally cause or set the fire at 250 Myrtle.

The jury heard evidence that defendant Singer and James Brown purchased this property in March

2006, and that defendant invested $6,151.25 in the property. Insurance was placed on the dwelling

in August 15, 2006, when $69,000 coverage was purchased. (Gov. Ex. 2.13)

On November 9, 2006, the property was destroyed by fire at about 10:00 p.m. Muskegon

police Sgt. Michael Tripp testified that he reported the fire at 9:52 p.m. Muskegon Fire Marshal

Major Metcalf testified that he was unable to determine the cause of the fire. Major Metcalf

interviewed defendant Singer on November 13, 2006. Defendant told him the last time he was at

the property was three weeks before the fire, and that he only knew of the fire because James Brown

called him. Defendant said he was told the fire started around 8:00 p.m. Joel DeKraker, former fire

marshal with the Michigan State Police, testified that the origin of the fire was on the second floor

of the unoccupied house and that there was no natural cause for this fire. Using a hypothetical

question format, DeKraker testified that it was an arson fire.

Defendant told Foremost representative William McGovern that he learned of the fire at

about 10:00 p.m., but that the fire occurred at about 8:00 p.m. McGovern testified that defendant

said he had not been at the property for weeks prior to the fire. However, Elton Williams testified

that he saw defendant carrying large and heavy objects out of the house at 250 Myrtle on the morning

of the day the fire occurred. Mr. Green received a phone call after 10:00 p.m. from a Mr. Grey about

a fire at 250 Myrtle. Mr. Green immediately tried to contact James Brown to tell him the property

had burned. Cell phone records indicated that Mr. Green likely reached Mr. Brown at about 11:00

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p.m. (Gov. Ex. 2.23) On February 1, 2007, defendant Singer writes a check to “CASH” in the

amount of $21,122.00, with a notation “JB.” (Gov. Ex. 2.34)

vi. Count 7: 2608-2614 7th Street, Muskegon Heights, Michigan

The evidence supports a finding that defendant Singer intentionally caused or set the fire at

2608-2614 7th Street, or caused, aided, abetted, counseled, commanded, induced, or procured

another person to intentionally cause or set this fire. Both Muskegon Heights Fire Department Chief

Christopher Dean and Timothy Raha, the independent expert hired by the insurance company,

testified that, in their expert opinion, the fire started in the closet of a second floor bedroom

(apartment 2612) and that it was an intentionally set fire. The jury also saw photographs of the

evidence at the fire scene and observed firsthand in the courtroom a large partially burned wood log

that was found inside the closet. (Gov. Ex. 1.22)

Defendant told investigators he was the only one with keys to apartment 2612. The jury

heard testimony from Mr. Gordon that defendant Singer was inside apartment 2612 for several

minutes the afternoon before the fire. Investigators testified that defendant Singer initially told them

that he had not been inside apartment 2612 the afternoon before the fire was reported, but later

contradicted himself on this issue when he told Mr. Raha that he was inside of the unit the day of

the fire and turned on a light inside the bedroom where the fire originated. According to Mr. Raha,

defendant Singer later recanted this statement. When defendant filed an insurance claim, he told the

insurance company he believed the fire was caused by “arson” or “electrical.” (Gov. Exs. 1.7, 1.8)

Defendant Singer tried unsuccessfully to sell the four-unit apartment building immediately

prior to the fire. In August 2007, after the building burned, realtor Mel Black said that defendant

Singer contacted him to tell him that the listing could be cancelled because the building burned. Mr.

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Black described defendant’s tone of voice as “euphoric.”

Defendant Singer sought more than $270,000 in insurance payments from Farm Bureau

insurance company for the fire loss at 2608-2614 7th Street. (Gov. Ex. 1.9) Attorney Willison also

testified that defendant Singer’s federal tax returns showed that defendant reported losses on the

four-unit rental property in 2005 and 2006 leading up to the fire. (Gov. Exs. 1.46, p.5; 1.47, p.4)

Defendant also claimed a $4,441.00 loss on the property on his 2007 federal tax return. (Gov. Ex.

12.9, p.15) When Farm Bureau denied defendant Singer’s claim, he filed a lawsuit in July 2008

against the company. (Gov. Ex. 1.10) In April 2009, the ATF began questioning witnesses in

Muskegon Heights about a series of fires that occurred, including the fire that destroyed “The Fair.”

Two months later, defendant Singer voluntarily dismissed his lawsuit with prejudice and agreed to

pay Farm Bureau $4,000 toward its legal expenses in defending the lawsuit. (Gov. Exs. 1.18, 1.28)

Therefore, all of the essential elements are proven in Counts 2 through 7.

C. Counts 8 through 10: Arson - 18 U.S.C. §§ 844(i) and 2

The statute provides, in pertinent part:

Whoever maliciously damages or destroys, or attempts to damage or destroy,by means of fire or an explosive, any building, vehicle, or other real orpersonal property used in interstate or foreign commerce or in any activityaffecting interstate or foreign commerce shall be imprisoned for not less than5 years and not more than 20 years, fined under this title, or both; and ifpersonal injury results to any person, including any public safety officerperforming duties as a direct or proximate result of conduct prohibited by thissubsection, shall be imprisoned for not less than 7 years and not more than40 years, fined under this title, or both . . . .


(1) The Defendant damaged or destroyed a property by the use of fire, or aided and

abetted the damage and destruction of a property by the use of fire;

36


(2) The Defendant acted maliciously, that is, intentionally caused damage without

just cause or reason;

(3) At the time of the fire, the property was used in any activity affecting interstate

commerce.

See Jones v. United States, 529 U.S. 848 (2000); United States v. Gullett, 75 F.3d 941, 947 (4th Cir.

1996) (citing United States v. Nguyen, 28 F.3d 477, 480 (5th Cir. 1994); United States v. Triplett,

922 F.2d 1174, 1177 (5th Cir. 1991). In prosecuting arson cases, federal prosecutors frequently rely

on circumstantial proof that the fire was intentionally set. In United States. v. Schlesinger, 261 F.

App’x 355, 359 (2d Cir. 2008), the court noted that arson crimes “may be proven entirely by

circumstantial evidence.”

The Sixth Circuit has recognized the Supreme Court’s opinion in Jones, 529 U.S. 848, 859,

established a “two-part inquiry” to determine whether a building fits within the strictures of § 844(i).

United States v. Rayborn, 312 F.3d 229, 233 (6th Cir. 2002). First, courts must inquire “into the

function of the building itself.” Second, courts should determine whether that function “affects

interstate commerce.” Although Jones held that arson of an owner-occupied home is not within the

reach of Section 844(i), the Supreme Court previously found that the language of § 844(i) ‘expresses

an intent by Congress to exercise its full power under the Commerce Clause.’ Russell v. United

States, 471 U.S. 858, 859 (1985). In Russell, the Supreme Court held that Congress’ power under

the Commerce Clause and its intent in enacting § 844(i) brought an apartment building involved in

strictly local rentals within the reach of the statute. The Court found that “the rental of real estate

is unquestionably ... an activity affecting interstate commerce . . . . The local rental of an apartment

unit is merely an element of a much broader commercial market in rental properties.” Russell thus

37


holds that rental property is per se property used in an activity affecting interstate commerce.

Russell, 471 U.S. at 862. Jones reaffirmed Russell. See 529 U.S. at 853-56. If the property to be

burned is in the rental market, it is sufficiently connected to interstate commerce to confer

jurisdiction. United States v. Medeiros, 897 F.2d 13, 16 (1st Cir. 1990).

The Sixth Circuit has held that proof that a tenant paid monthly commercial rent is sufficient

proof that the property was being used in interstate commerce under the federal arson

statute. United States v. Hang Le-Thy Tran, 433 F.3d 472, 477 (6th Cir. 2006). In a habeas case,

the Sixth Circuit upheld an arson conviction where the record showed that there was testimony,

but no documentary proof, that a tenant paid $200 a month in rent for the residence which was

the subject of the arson prosecution. Martin v. Perez, 391 F.3d 799, 804 (6th Cir. 2004). The Sixth

Circuit has also found that the interstate commerce nexus was satisfied when the arson involved

“rental cabins” which were used for short duration stays. United States v. Barker, 72 F. App’x 246,

247 (6th Cir. 2003). A “clearly sufficient” arson interstate commerce nexus was found where a

married couple purchased a house under a land contract, with the intention of re-selling the house

at a profit. United States v. Wiegand, No. 93-1735, 1994 WL 714347, *3-4 (6th Cir. 1994). The

Sixth Circuit has even found a sufficient interstate commerce nexus when the single residence rental

property was “empty,” or not rented, at the time of the fire. United States v. Turner, 995 F.2d 1357,

1362 (6th Cir. 1993). See also United States v. Veysey, 334 F.3d 600, 603 (7th Cir. 2003) (finding

interstate commerce nexus even when owner of home was not in business of renting and only rented

property because he was unable to sell it). The Veysey court noted that a sufficient nexus to

interstate commerce exists even if the property was “drifting in and out of interstate commerce”

before the fire. Id.

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First, the United States incorporates by reference the evidence summarized in Sections II.A.

and II.B. above in support of Counts 8-10. The United States provides the following additional

evidence as to each count:

i. Count 8: Arson of an Investment Property at 2340 Wood, MuskegonHeights, Michigan

With respect to the interstate commerce element, at the time of the fire, 2340 Wood was an

investment property owned by Aarmor Realty and Investments LLC (“Aarmor Realty”), a Chicago

real estate investment company owned by defendant’s son, Mark Singer. Ray Haynes and Stacey

Tyler were purchasing the home on a land contract agreement from Aarmor Realty. (Gov. Ex. 4.5)

The land contract provides that Aarmor Realty will convey the property fee simple by a recordable

deed only if the purchasers “shall first make the payments and perform” under the contract. (Gov.

Ex. 4.5) Evidence proves that Aarmor Realty retained legal title after signing the land contract

agreement.

Prior to the fire, defendant Singer told Ray Haynes to go to an insurance agency to sign

insurance documents, which was arranged for them by defendant Singer. The renewals were sent

to the lien holder, Aarmor Realty. (Gov. Ex. 4.57) The insurance documents reflect that Mark

Singer added his name as an “additional insured” to the property effective May 30, 2002, which

insured Armor Realty’s legal interest in the property. (Gov. Exs. 4.9; 4.57) Less than three months

later, the property was severely damaged by the fire set by Ray Haynes.

After the fire, Ray and Stacey Haynes sought and received more than $100,000 in insurance

proceeds as a result of the fire. Immediately upon receiving the balance of the insurance payoff, Ray

Haynes met with Defendant Singer and his son, Mark Singer, at a restaurant in west Michigan, where

39


Ray gave Defendant Singer and Mark Singer an official bank check in the amount of $31,500 as final

payment for 2340 Wood. (Gov. Exs. 4.25, 4.34) Shortly thereafter, Mark Singer executed a Quit

Claim deed dated August 5, 2003, which transferred all of his rights, title, and interest in the property

to Ray Haynes and Stacey Tyler. (Gov. Ex. 4.32) Until that time, the property remained an

investment property owned by and titled in the name of the Investment LLC. Accordingly, this

property was being used in an activity affecting interstate commerce at the time of the fire. The

property was never rebuilt by defendant Singer, Mark Singer, or Ray Haynes.

A Muskegon Heights firefighter, Fonte Love, testified that when he entered the home to

search for victims and to suppress the fire, the house was on fire and was filled with smoke. He said

it was difficult to see because of the smoke and because he was wearing a breathing apparatus that

further restricted his vision. Firefighter Love said he stepped into a hole in the kitchen floor and his

leg fell through the floor to his mid-thigh. Firefighter Love sought medical treatment, was diagnosed

with an injury, and was unable to work for about one month due to the injury. 2

ii. Count 9: Arson of an Investment Property at 250 Myrtle, Muskegon,Michigan

With respect to the interstate commerce element, the defendant has stipulated that this

property was being used as an investment property affecting interstate commerce, which satisfies the

government’s burden of proof with regard to the interstate commerce element. (Docket No. 97)

Further, trial evidence established that the property was purchased by defendant Singer and a partner,

James Brown, as an investment property. The dwelling was in the process of being renovated for

If the jury finds defendant guilty of Count 8, the jury must also determine if the arson2

caused physical injury to a public safety officer. See 18 U.S.C. § 844(i); United States v. Gibney,519 F.3d 301 (6th Cir. 2008) (the physical harm or injury need not be significant or serious).

40


use as a rental property, specifically a rental property, immediately prior to the fire. Federal law

provides that renting residential property is an activity that affects interstate commerce.

iii. Count 10: Arson of a Commercial Building at 2608-2614 7th Street,Muskegon Heights, Michigan

With respect to the interstate commerce element, the defendant has stipulated that this

property was being used as an investment property affecting interstate commerce, which satisfies the

government’s burden of proof with regard to the interstate commerce element. (Docket No. 97)

Further, trial evidence proved that two of the four units in the apartment building had been rented

and occupied by tenants. Chief Christopher Dean testified that one of the units was advertised with

a yard sign as available for rent at the time of the fire when the fire was intentionally set.

Thus, all of the essential elements are proven in Counts 8 through 10.

D. Counts 11 through 14: False Statement on Tax Return - 26 U.S.C. § 7206(1)


(1) the Defendant made and signed a federal income tax return Form 1040 for

the year alleged in the particular count of the Superseding Indictment;

(2) the federal income tax return Form 1040 contained a written declaration that it

was made under the penalty of perjury;

(3) when the Defendant caused the federal income tax return Form 1040 to be made,

he knew it contained false material information;

(4) when the Defendant did so, he intended to do something he knew violated the

law;

(5) the false matter in the federal income tax return Form 1040 related to a material

41


statement.

A declaration is “false” if it is untrue when made and the person making it knows it is untrue.

A declaration in a document is “false” if it is untrue when the document is used and the person using

it knows it is untrue. A declaration is “material” if it concerns a matter of significance or

importance, which was capable of influencing the Internal Revenue Service. See United States v.

Perez, 612 F.3d 879, 886 (7th Cir. 2010). In order to establish falsity of the tax returns, the

government need only to prove that the defendant “had unreported income, not the exact amount of

such unreported income or the existence of a tax deficiency.” Id. at 886 (citing United States v. Pree,

408 F.3d 855, 867 (7th Cir. 2005)). See also Eleventh Circuit Pattern Criminal Instruction 109.1

(2010).

The evidence at trial established that defendant Singer filed federal income tax returns,

known as Form 1040s, with the assistance of his tax preparer, Ward VanDam. In many of those

returns, Defendant Singer claimed a net operating loss (“NOL”) arising from the fire at defendant’s

business at 1292 E. Broadway in Norton Shores, known as “The Fair” fabric store. Mr. VanDam

testified that defendant Singer reported a NOL relating to the fire on defendant Singer’s 2001 federal

Form 1040 tax return in the amount of -$528,869. The “Statement 1” on the 2001 tax return

referenced a “Prior Year NOL” of -$530,069. (Gov. Ex. 5.77) In 2002, defendant Singer reported

a NOL of -$530,069, and referenced the “Prior Year NOL” on his Form 1040 tax return. (Gov. Ex.

5.75) Mr. VanDam testified that he knew that any insurance payments received on the fire loss must

be applied as an offset to the NOL.

By early 2003, documentary and testimonial evidence proves that defendant Singer had

received $500,000 in insurance reimbursement payments from The Hartford, the Westport Insurance

42


Company, and Shoreline Insurance Agency in connection with the fire at The Fair. (Gov. Exs. 5.61,

5.55) Nevertheless, the defendant continued to carry forward the large NOL to offset taxable earned

income. The following chart represents evidence relating to the NOL reported by defendant Singer

on Line 21 of his Form 1040 tax returns for the years 2003 and 2008:

Tax Year NOL Reported Reported AGI Total Tax Payment Gov. Exhibit

2003 -$530,069 -$529,781 $0 5.73 / 12.3

2004 -$546,082 -507,013 $201 5.71 / 12.4

2005 -$519,518 -$412,479 $426 5.69 / 12.6

2006 -$436,888 -$445,360 $0 5.67 / 12.7

2007 -$442,896 -$391,816 $347 5.65 / 12.9

2008 -$429,095 -$396,652 $96 5.63 / 12.11

The incontrovertible proof at trial established that defendant Singer never disclosed the

insurance payments for The Fair fire to his tax preparer or on the Forms 1040 defendant signed and

filed with the IRS. When VanDam inquired with defendant Singer concerning any amounts he has

received on The Fair building in connection with the preparation of defendant’s 2007 tax return,

defendant Singer told VanDam to “leave as is.” (Gov. Ex. 5.65, p.4) Mr. VanDam testified that

defendant Singer provided Mr. VanDam with lists of his income and expenses, but never any bank

statements. Moreover, Defendant’s own records show that he knew the importance of reporting

income from insurance compensation on his federal tax return. In defendant’s 2006 Form 1040

federal tax return, he reported to the IRS a gain from an insurance payment of $32,000. (Gov. Exs.

12.7, Form 4684 at page 27 lines 24, 26; 5.67) The totality of the evidence establishes that defendant

Singer knew his tax returns contained materially false information and that he intended to violate the

law by continuing to report the NOL long after he received $500,000 in insurance payments for The

43


Fair fire. Mr. VanDam terminated the business relationship with defendant Singer. Mr. VanDam

testified that he felt like they were not receiving all pertinent information from the defendant and,

upon independent investigation of public records, found information inconsistent with that provided

by defendant Singer.

IRS agents Adam Billmeier and Darline Goeman testified about the NOL reported by

defendant Singer in tax years 2005 through 2008. Agent Billmeier testified that defendant Singer

admitted that his signature appeared on the 2005 through 2008 federal Form 1040 tax returns. (Gov.

Exs. 12.6, 12.8, 12.10, 12.12) Defendant Singer also admitted to agent Billmeier that the NOL he

was reporting during those tax years was from fire loss at The Fair and another rental property.

Agent Billmeier also testified that when he asked defendant Singer how much insurance money he

received in settlement of the claim for The Fair fire, defendant repeatedly told him only $300,000,

consisting of $150,000 from The Hartford and $150,000 from the insurance agency. When Agent

Billmeier confronted defendant with a copy of the $300,000 Hartford check and the $190,000

Westport check, defendant identified his signature on both checks but claimed he never received the

$190,000 settlement money. At one point during the interview, defendant told Agent Billmeier that:

“You don’t have shit.”

IRS Agent Goeman explained that carrying forward a net operating loss has the effect of

reducing a taxpayer’s income for as long as it is carried forward or until the entire loss has offset

income (i.e., the loss has been “used up.”) Agent Goeman further explained that a net operating loss

may not be used to offset income if the loss was the result of an intentional fire. Further, even

assuming the NOL was properly claimed by defendant Singer prior to his receipt of insurance

payments, Agent Goeman testified that IRS regulations did not allow defendant to carry forward the

44


NOL after he received insurance payments for the fire loss at The Fair. None of this evidence was

challenged or contradicted by defendant.

Agent Goeman also testified that she found evidence that defendant Singer knew that it was

important to report insurance payments on his federal tax returns. In defendant’s 2006 Form 1040

return, defendant Singer reported a $32,000 payment from “insurance or other reimbursement” on

attachment Form 4684. (Gov. Ex. 12.7, p.27 form 4684 line 24) The description of the “casualty

or theft of property” was listed as “FIRE.” (Gov. Ex. 12.7, p.27, form 4684 line 32) As a result of

this insurance payment, Defendant reported a “gain from casualty or theft” of $21,329.00. (Gov. Ex.

12.7, p.27, form 4684 line 25)

Additionally, the materially false information reported to the IRS by the defendant is

summarized by count as follows:

i. Count 11: 2005 Federal Income Tax Return, Form 1040

The testimonial and documentary evidence reflects that on November 10, 2006, defendant

Singer willfully made a materially false statement on his federal tax return Form 1040 for calendar

year 2005. Specifically, defendant Singer reported a net operating loss of -$519,518 on line 21 of

his return. Agent Goeman testified that defendant Singer’s reporting of a -$519,518 NOL in tax year

2005 reduced defendant’s income by approximately $100,000. Defendant failed to report that he had

received $500,000 in insurance proceeds on his loss from the fire at The Fair fabric store in Norton

Shores, Michigan. The official IRS records show the return was made and signed under the penalties

of perjury and filed with the Internal Revenue Service. (Gov. Exs. 5.69, 12.6, 12.26a, 12.27)

45


ii. Count 12: 2006 Federal Income Tax Return, Form 1040

The testimonial and documentary evidence reflects that on July 5, 2007, defendant Singer

willfully made a materially false statement on his federal tax return Form 1040 for calendar year

2006. Specifically, defendant Singer reported a net operating loss of -$436,888 on line 21 of his

return. Defendant Singer’s reporting of a -$436,888 NOL in tax year 2006 reduced defendant’s

income by approximately $10,000, according to Agent Goeman. Defendant failed to report that he

had received $500,000 in insurance proceeds on his loss from the fire at The Fair fabric store in

Norton Shores, Michigan. The official IRS records show this return was made and signed under the

penalties of perjury and filed with the Internal Revenue Service. (Gov. Exs. 5.67, 12.7, 12.28a,

12.29)

iii. Count 13: 2007 Federal Income Tax Return, Form 1040

The testimonial and documentary evidence reflects that on October 8, 2008, defendant Singer



return. Agent Goeman testified that defendant’s reported NOL of -$442,896 in tax year 2007

reduced his income by about $40,000. Defendant failed to report that he had received $500,000 in

insurance proceeds on his loss from the fire at The Fair fabric store in Norton Shores, Michigan.

This return was made and signed under the penalties of perjury and filed with the Internal Revenue

Service. (Gov. Exs. 5.65, 12.9, 12.30a, 12.31)

iv. Count 14: 2008 Federal Income Tax Return, Form 1040

The testimonial and documentary evidence reflects that on August 6, 2009, defendant Singer


46



return. Agent Goeman testified that defendant’s reported NOL of -$429,095 in tax year 2008

reduced his income by approximately $30,000. Defendant failed to report that he had received

$500,000 in insurance proceeds on his loss from the fire at The Fair fabric store in Norton Shores,

Michigan. This return was made and signed under the penalties of perjury and filed with the Internal

Revenue Service. (Gov. Exs. 5.63, 12.11, 12.32a, 12.33)

Thus, all of the essential elements are proven in Counts 11 through 14.

E. Count 15: Obstructing Tax Administration - 26 U.S.C. § 7212(a) (omnibus clause)


(1) the Defendant knowingly tried to obstruct or impede the due administration of the

Internal Revenue laws; and,

(2) the Defendant did so corruptly.

To act “corruptly” means to act knowingly and dishonestly for a wrongful purpose. To “try to

obstruct or impede” is to consciously attempt to act, or to take some step to hinder, prevent, delay,

or make more difficult the proper administration of the Internal Revenue laws. The Government

does not have to prove that the administration of the Internal Revenue laws was actually obstructed

or impeded. It only has to prove that the Defendant corruptly tried to do so. The Government only

has to prove beyond a reasonable doubt that the Defendant used any one of the methods alleged in

the Superseding Indictment with the corrupt intent to obstruct and impede the proper administration

of the Internal Revenue laws. See Eleventh Circuit Pattern Instruction 111 (2010); United States v.

Bowman, 173 F.3d 595 (6th Cir. 1999).

47


The jury heard evidence that defendant sought to impede the due administration of the

Internal Revenue laws by engaging a series of dishonest acts. Defendant’s dishonest acts include:

(1) causing to be filed false 2005-2008 federal Form 1040 tax returns that reported net operating

losses (NOL) in excess of amounts he was entitled to claim; (2) making false statements to IRS

officials about his income tax returns; (3) misleading his tax return preparer by withholding

information; (4) concealing income from the IRS by using a nominee bank account, known as a

“Safe Haven” account; (5) concealing income by means of “structuring” the payout of insurance

funds; and (6) causing the filing of false “First Time Home Buyer Credit” claims.

i. Falsely Reporting Net Operating Losses on 2005 through 2008 Tax Returns

IRS agent Darline Goeman testified that, of the $500,000 in insurance proceeds received by

defendant Singer for the fire loss at The Fair, 1292 E. Broadway, Norton Shores, none of those

proceeds were ever reported to the IRS on his federal tax returns. Accountant Ward VanDam

testified that defendant Singer told him what amount to report as the net operating loss, and that

defendant did not provide any supporting documentation for the amount. In 2007, when Mr.

VanDam asked defendant Singer about the net operating loss, defendant told him “leave as is.”

(Gov. Ex. 5.65, p.4) The United States also incorporates by reference the evidence in Section II.D.

above.

ii. Making False and Misleading Statements to IRS officials

Agent Billmeier testified that when he asked defendant Singer how much insurance money

he received in settlement of the claim for The Fair fire, defendant repeatedly told him only $300,000,

consisting of $150,000 from The Hartford and $150,000 from the insurance agency. When Agent

Billmeier confronted defendant with a copy of the $300,000 Hartford check and the $190,000

48


Westport check, defendant identified his signature on both checks but falsely claimed he never

received the $190,000 settlement money. The United States also incorporates by reference the

evidence in Section II.D. above.

iii. Use of “Safe Haven” Nominee Account and Concealing Income By Structuring

With regard to the use of a nominee bank account and engaging in structuring of the

$300,000 insurance settlement payment from The Hartford insurance company on The Fair fire, the

government introduced evidence that, in December 2002, the Hartford made a $300,000 insurance

payment into a “Safe Haven” account as partial reimbursement from the fire loss at The Fair. (Gov.

Exs. 5.55, 5.56.) Defendant’s civil attorney, Curtis Mabbitt, testified that it was defendant Singer’s

idea to use a “Safe Haven” account. Attorney Mabbitt described the account as similar to a

“checking” account, and produced documentation of the checking account register showing the

deposits and withdrawals. (Gov. Ex. 12.34)

Mr. Mabbitt explained that, rather than taking the entire $300,000 out at one time, defendant

Singer instructed him to set up the Safe Haven account and write a series of checks from the account.

(Gov. Ex. 5.56) Specifically, in December 2002, defendant Singer and his wife received ten (10)

checks, most of them in the exact amount of $10,000.00. (Gov. Ex. 12.14) A total of $123,119.90

was paid to defendant Singer from those withdrawals; $78,119.90 to defendant Singer and $45,000

to Helen Singer. (Gov. Ex. 12.38) Shortly thereafter, in January 2003, an additional eight (8) checks

were written to “CASH” and given to defendant Singer. A total of $76,000.00 was paid to defendant

Singer in those checks. Seven of those checks were in the exact amount of $10,000.00, with the final

check in the amount of $6,000. (Gov. Exs. 12.14, 12.35) Attorney Mabbitt reiterated that it was

defendant’s idea to receive the settlement in this manner. A summary chart of the transactions

49


appears in Gov. Ex. 12.38a.

The United States also introduced evidence of structuring relating to the $190,000 settlement

payment from the Westport insurance company for a portion of the fire loss at The Fair. (Gov. Exs.

5.61, 12.13) Attorney Curtis Mabbitt testified that the $190,000 check from Westport was deposited

into the Halbower & Mabbitt law firm IOLTA (client trust) account. The evidence further shows

that defendant Singer received from attorney Mabbitt a series of seven (7) checks, all payable for

exactly $10,000, on or about January 13, 2003. (Gov. Ex. 12.13, p.7) An eighth check was written

to defendant Singer in the amount of $1,000, for a total of $71,000.00. (Gov. Ex. 12.13, p.7)

Attorney Mabbitt reiterated that it was defendant Singer’s idea to receive the settlement payment in

this manner. A summary chart of those transactions was admitted into evidence. (Gov. Ex. 12.39)

IRS Special Agent Adam Billmeier testified that financial institutions are required to file with

the IRS a Currency Transaction Report, or CTR, if a cash transaction exceeds $10,000. Cash

transactions of $10,000 or less do not generate a CTR, but cash transactions of $10,000.01 and

higher are reported. This issue was further clarified by the Court when a juror sent a note to the

Court inquiring whether the reporting law had changed. Agent Billmeier testified that defendant

Singer told him that he was aware of the currency transaction reporting requirements. Agent

Billmeier further testified that, when he asked defendant why he obtained most of the insurance

payment in $10,000 increments, defendant claimed that he could not recall. The United States also

incorporates by reference the evidence in Section II.D. above.

iii. Causing the Filing of False “First-Time Homebuyer Credit” Claims

The jury heard evidence that defendant Singer had several of his renters sign contracts

ostensibly to “purchase” the rental property in which they lived and paid rent. After those contracts

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were signed, Defendant Singer sent those “buyers” to a Muskegon tax preparer, Frank Cox, to have

tax returns filed on their behalf. Mr. Cox testified that invoice documents reflect that defendant

Singer paid the preparation fees for the tax returns of others, and that he had not previously prepared

returns for those individuals. (Gov. Ex. 12.18) The tax returns claimed that the “buyers” were

entitled to the first-time homebuyer credit. The jury heard testimony from tenants Cheryl Dekker,

Willie Townsel, and Erica Gamble concerning defendant Singer’s efforts to obtain the first-time

homebuyer credit on those properties. The testimonial and documentary evidence established that

defendant Singer created “sham” land contract transactions to make it appear as though defendant

was selling those properties to first time home buyers when in fact the pre-existing rental

arrangement had not changed.

One example of defendant’s first-time homebuyer credit scheme was the land contract

agreement between Defendant Singer and Erica Gamble dated December 31, 2009. Ms. Gamble,

who earned no income in 2009 and lived on government disability payments, testified she signed a

document given to her by defendant Singer, which indicated she would purchase the rental property

in Muskegon for $44,900 with a $5,000 down payment. The contract carried a 9% rate of interest.

(Gov. Ex. 12.20) Ms. Gamble testified she never made a $5,000 down payment (and did not have

the money to do so). Defendant Singer arranged to have Ms. Gamble’s 2009 tax return prepared and

filed by the Cox accounting firm. The filed return claimed entitlement to the first- time homebuyer

credit in the amount of $4,490. (Gov. Ex. 12.19, p.3 line 67) Ms. Gamble testified that she told

defendant that she did not do anything to receive a tax refund check, to which defendant responded

that she should not tell anyone about it.

A $4,490 United States Treasury refund check was issued to Ms. Gamble, reflecting the tax

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credit. (Gov. Ex. 12.41) According to Ms. Gamble, defendant Singer picked her up, kissed the

check, told her something to the effect of, “big daddy is going to make you rich,” and drove her to

a bank to cash the check. Ms. Gamble had no bank account, so Defendant Singer endorsed the check

with his signature below her signature, cashed the check, and Ms. Gamble received $800 cash from

defendant. She said that defendant Singer kept the balance of the refund. Ms. Gamble said that she

remains in the home paying the same rent she paid before this transaction occurred, but now she pays

the rent to another individual. She testified that she has not paid taxes or insurance on the property.

Tenant Cheryl Dekker testified that she has not worked for a long time due to an injury she

sustained in a car accident. She collects $710 per month in government disability payments and at

one point was raising eight children in a home she rented from defendant Singer. Defendant offered

to sell her the residence, but she wanted to rent it for $600 per month. Dekker signed a “land

contract” document dated July 1, 2009, which indicated she would buy the home in Muskegon

Heights for $67,900 at eight percent interest per annum and pay $800 per month. (Gov. Ex. 12.59)

The contract also required her to pay the property taxes, but Ms. Dekker said that she did not pay the

taxes. Defendant took her to obtain insurance on the property, which was paid for by the defendant.

Ms. Dekker also testified that she had to sign a “quit claim deed” at the time so that defendant could

immediately take back the home if she did not keep up with her payments.

Ms. Dekker testified that defendant told her that she could pay him down payment money

through a tax credit, and he directed her to a tax preparer. The preparer provided her with a 2008

tax return document that claimed a $6,900 first-time homebuyer credit, which she signed. (Gov. Ex.

12.22, p.3 line 69) She later received a U.S. Treasury refund check in the amount of $6,900. (Gov.

Ex. 12.42) Thereafter, Ms. Dekker paid defendant $2,400 by check, which was previously agreed

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upon. (Gov. Ex. 12.61) Further evidence this was a “sham” transaction was defendant’s refusal to

grant Ms. Dekker’s request that she rent out a room in the house to help afford the monthly payment.

She was unable to afford living in the home, and by letter dated May 10, 2011 and signed by

defendant Singer, he ordered her out of the home by June 1, 2011. (Gov. Ex. 12.57) Defendant told

her, “follow these instructions and I will not go after you. I will (NOT) quick clame [sic] the house

back so you won’t have to pay back close to 6,000 to 7,000 back.” (Gov. Ex. 12.57)

Tenant Willie Townsel testified that defendant Singer had him sign a “Land Contract”

document dated April 1, 2009, indicating that he was purchasing the rental home in Muskegon

Heights where he resided. (Gov. Ex. 12.24). Mr. Townsel said he earned about $16,000 per year.

The Land Contract provided that Mr. Townsel was buying the home for $36,900 at 9% interest per

annum with payments of $550 per month. The contract also required Mr. Townsel to pay the

property taxes. Mr. Townsel testified that he did not make payments of $550 per month and did not

pay the property taxes. Mr. Townsel said he also signed an undated “quit claim deed” when the land

contract was signed.

According to testimony, defendant Singer told Mr. Townsel that he should file a tax return

to claim a first time home buyer credit; Townsel did not know anything about the credit. Mr.

Townsel said that defendant sent him to a tax preparer and paid for the preparation of his 2009 tax

return. (Gov. Ex. 12.23) Mr. Townsel further testified that his earned income was not reported on

the return, and that he did not have his own business as reported on Schedule C. The return claimed

a first-time homebuyer credit of $3,690 (Gov. Ex. 12.23, p.3 line 67)

Mr. Townsel received a United States Treasury refund check in the amount of $3,638. (Gov.

Ex. 12.43) Mr. Townsel said he cashed the check at the bank and paid about half of the check over

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to defendant Singer and he used some of the money to pay defendant rent. Further evidence the land

contract was a sham to corruptly obtain a homebuyer credit: defendant Singer placed additional

renters in the residence and those renters paid their rent to defendant, not to Mr. Townsel.

During an interview with IRS Special Agent Billmeier, defendant Singer conceded that if he

was receiving tax credits for first time home buyers, that activity would be “unethical.”

Therefore, all of the essential elements are proven in Count 15.

WHEREFORE, the government respectfully requests that the Court deny defendant’s Rule

29(a) motion for judgment of acquittal.

Pursuant to Local Rule 12.3, the United States respectfully moves this Court for an order

authorizing the instanter filing of this brief in excess of the page limitation set forth in Local Rule

47.1(b) given the length of the trial, the number of witnesses and exhibits admitted into evidence,

and the number of counts in the Superseding Indictment.

Respectfully submitted,

PATRICK A. MILES, JR.United States Attorney

Dated: March 18, 2013 /s/ Christopher M. O’Connor CHRISTOPHER M. O’CONNORAssistant United States Attorney

/s/ Michael A. MacDonald MICHAEL A. MACDONALDAssistant United States AttorneyUnited States Attorney’s OfficeP.O. Box 208 Grand Rapids, MI 49501-0208(616) 456-2404

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