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Finding that a jury had plenty of evidence to convict a Bryn Mawr, Pa., lawyer on fraud charges for faking a disability to collect insurance, a federal judge has refused either to set aside the verdict or grant a new trial. The ruling by U.S. District Judge Jay C. Waldman means that Robert M. Nissenbaum now faces a sentence of more than two years in prison and an order that he make full restitution to the Provident Life & Accident Co. Nissenbaum was convicted in January on 19 counts of mail fraud for collecting more than $400,000 in disability pay by falsely claiming that his hearing and back problems made it impossible to perform the job of “trial attorney” — even though he hadn’t handled a trial in years. Assistant U.S. Attorney Robert Zauzmer told the jury that Nissenbaum had committed fraud in several ways — by falsely claiming that he was a “trial attorney” when, in fact, he had stopped doing trial work in the mid-1980s; by hiding his “second occupation” as owner of the Mystery Books bookstore in Bryn Mawr; and by exaggerating his ailments. After the verdict, Nissenbaum’s lawyer, Joel W. Todd of Philadelphia-based Dolchin Slotkin & Todd, argued that the verdict should be set aside because the government failed to prove that Nissenbaum was lying when he said he had worked as a trial attorney until he became disabled. Judge Waldman disagreed, saying the jury had sufficient evidence to support a finding that Nissenbaum misrepresented both his physical impairments and the nature of his occupation. “Viewing the evidence in a light most favorable to the government, a jury quite rationally could conclude beyond a reasonable doubt that defendant knowingly misrepresented his occupational specialty and physical limitations, and concealed information about his operation of a bookstore, with the intent fraudulently to obtain disability insurance benefits for which he knew he did not qualify,” Waldman wrote. Todd argued that Nissenbaum reasonably perceived himself to be a “trial lawyer” even though he went to court very rarely. But Waldman found there was evidence that Nissenbaum had sworn off going into court years before his claimed disability. “There was evidence that defendant expressly forsook trial work in 1984, long before claiming to be disabled for such work, and did indeed desist thereafter. When cases proceeded to trial, defendant assigned or referred them to others. This evidence was highly credible,” Waldman wrote. Todd also complained that the government improperly put Nissenbaum on trial for working at his bookstore while claiming to be unable to do trial work. The argument was flawed, Todd said, since the duties of the two jobs are not identical. But Waldman said the fact that the two jobs are not identical is “beside the point.” “What the government demonstrated with the testimony of witnesses who observed defendant at the bookstore was that he did not exhibit the type of hearing or back impairment that would preclude work as a trial attorney, and certainly not as an attorney who renounced trial work and referred cases for trial to others,” Waldman wrote. Waldman also said the jury could have relied on surveillance videos that showed Nissenbaum doing physically straining chores — shoveling snow, chipping ice from a car windshield, and carrying stacks of books — at the same time that he was claiming in phone calls with Provident representatives that he was spending many of his days at home, often confined to bed. And in his conversations with Provident representatives, Waldman said there was evidence that Nissenbaum lied about being bedridden and about losing a case in court because of his hearing impairment. Looking at all the evidence, Waldman found that prosecutors proved that Nissenbaum “had a moderate hearing loss in one ear and a back condition which interfered with his ability to work only rarely over the six year period of 1994 through 2000.” Waldman also rejected Todd’s argument that Nissenbaum’s bookstore was not an occupation but a “hobby.” “That a business venture is unprofitable does not make it a hobby,” Waldman wrote. “There was evidence that defendant worked many hours at the bookstore which he kept open seven days a week, hired employees to work there, maintained insurance for the business and paid business and employment taxes.” But while Nissenbaum was at the bookstore on an almost daily basis, Waldman found that he omitted all information about the bookstore when questioned by Provident. “A jury quite reasonably could have found that defendant voluntarily withdrew from trial work before the onset of his claimed disability; that he was able to perform the essential duties of a lawyer who refrains from trying cases, and indeed even of one who does; and, that he progressively withdrew from a law practice which had become increasingly unprofitable, and shifted his focus to his bookstore as a principal occupation,” Waldman wrote. Nissenbaum is scheduled to be sentenced by Waldman on June 7.

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