                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT  OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              AUGUST 16, 2011
                               No. 10-14434
                                                                JOHN LEY
                           Non-Argument Calendar
                                                                 CLERK
                         ________________________

                   D. C. Docket No. 1:09-cr-00146-WS-C-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

KIMBERLY NICHOLE RAINWATERS,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                               (August 16, 2011)

Before BARKETT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Kimberly Nichole Rainwaters appeals her convictions for: (i) receiving
social security adult child disability benefits totaling $118,928.00, when knowing

the money to have been stolen, in violation of 18 U.S.C. § 641; (ii) intentionally

failing to disclose her common law marriage, in order to continue to receive social

security adult child disability benefits, in violation of 42 U.S.C. § 408(a)(4);

(iii) knowingly and willfully making a false written statement to the SSA that her

last name was changed to take on the last name of her children, in violation of 18

U.S.C. §§ 1001(a)(2) and (a)(3); (iv) knowingly and willfully making a false

statement that she was not married, in violation of 18 U.S.C. § 1001(a)(2); and

(v) knowingly and willfully making a false statement that she had never been

married or divorced, in violation of 18 U.S.C. § 1001(a)(2). Both parties agree that

the “crux” of the issues on appeal is whether Rainwaters entered into a common-

law marriage while receiving adult child disability benefits. This is because an

individual’s receipt of adult child disability benefits ends when such individual

“marries.” 42 U.S.C. § 402(d)(1)(D).

      On appeal, Rainwaters argues that the district court erred in denying her

motion for a judgment of acquittal, and in finding that she (i) had entered into a

common-law marriage and (ii) knew that she was common-law married, and as a

result, should have informed the Social Security Administration (“SSA”) of this

event. Rainwaters argues that the evidence presented by the government at her



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bench trial was insufficient to support her convictions because the evidence did not

establish beyond a reasonable doubt that a common-law marriage existed, that she

had knowledge of her marriage, or that she intended to conceal the marriage from

the SSA.

         We review “de novo the denial of a motion for acquittal and the sufficiency

of the evidence to sustain a conviction.” United States v. Tampas, 493 F.3d 1291,

1297 (11th Cir. 2007). “In reviewing evidentiary sufficiency, we must determine

whether the evidence, construed in the light most favorable to the government,

would permit the trier of fact to find the defendant guilty beyond a reasonable

doubt.” United States v. Farley, 607 F.3d 1294, 1333 (11th Cir.) (quotation

omitted), cert. denied, 131 S.Ct. 369 (2010). “We will not reverse unless no

reasonable trier of fact could find guilt beyond a reasonable doubt.” Id. “It is not

our function to make credibility choices or to pass upon the weight of the evidence.

Instead, we must sustain the verdict where there is a reasonable basis in the record

for it.” Id. (quotations and citation omitted). A district court’s findings of fact are

reviewed for clear error. United States v. Jones, 601 F.3d 1247, 1266 (11th Cir.

2010).

         In determining whether a common-law marriage existed, the SSA looks to

state law, see 20 C.F.R. § 404.726, which, in this case, is the law of the State of



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Alabama. In Alabama, the elements of a common-law marriage are: “(1) capacity;

(2) present agreement or mutual consent to enter into the marriage relationship;

(3) public recognition of the existence of the marriage; and (4) cohabitation or

mutual assumption of marital duties and obligations.” Creel v. Creel, 763 So.2d

943, 946 (Ala. 2000) (quotation and ellipsis omitted). These elements may be

“either explicitly expressed or implicitly inferred from the circumstances.” Arnold

v. Arnold, 977 So.2d 501, 508 (Ala. Civ. App. 2007) (citing Boswell v. Boswell,

497 So.2d 479, 480 (Ala. 1986)).

      Upon review of the record and consideration of the parties’ briefs, we find

there was sufficient evidence to support each of the counts of conviction for social

security fraud and the making of false statements in this case. The district court

did not clearly err in finding that a common-law marriage existed, and that

Rainwaters knew that such a marriage existed, based upon, among other things,

Rainwaters’s own testimony during her divorce proceedings. There was also

sufficient evidence that she knowingly concealed the marriage from the SSA.

Therefore, we affirm the district court.

      AFFIRMED.




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