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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-14248 ________________________
D.C. Docket No. 1:12-cr-00001-WLS-TQL
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHIRLEY DENISE BURK, DARRYL BURK,
Defendants - Appellants. ________________________
Appeals from the United States District Court for the Middle District of Georgia ________________________ (June 14, 2018)
Before TJOFLAT and ROSENBAUM, Circuit Judges, and UNGARO, * District Judge.
PER CURIAM:
* Honorable Ursula Ungaro, United States District Judge for the Southern District of Florida, sitting by designation. Case: 16-14248 Date Filed: 06/14/2018 Page: 2 of 23
Following oral argument and review of the record, we reject the
arguments advanced by the Appellants and affirm in all respects. Because
we write for the parties, we set out only what is necessary to explain our
decision.1
I. The Charged Conspiracy
The Government’s theory of this case is that over a nearly fourteen-
year period, a single, unified conspiracy existed between Elbert Walker 2
(“Walker”) and a number of other individuals, including Appellants Darryl
Burk (“D. Burk”) and Shirley Burk (“S. Burk”). As charged in the
indictment, the co-conspirators jointly participated in a scheme to unlawfully
enrich themselves by acquiring and transferring houses among each other,
setting fire to the houses, making insurance claims for the fire losses, and
making false statements in court proceedings to conceal their unlawful
conduct. The indictment further alleged that the co-conspirators
accomplished their unlawful plan by means that included mail fraud, arson
and the making of false declarations.
1 As to issues not specifically addressed, we affirm without discussion. 2 Walker was the “ring leader” of the overall conspiracy at issue in this case. While he stood trial together with the Appellants, his appeal has been severed and will be considered separately.
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The Government’s case focused on five different houses in the Middle
District of Georgia, all owned by Walker, four of which were intentionally
set on fire and one of which was damaged by fire on at least three separate
occasions. After a fourteen-day trial, a federal jury convicted both D. Burk
and S. Burk of participating in the charged conspiracy. The jury specifically
found that D. Burk conspired to commit mail fraud, and that S. Burk
conspired to commit mail fraud and arson, and to make false declarations.
These defendants now appeal their convictions.
II. Appellant Shirley Burk’s Singular Claim
Appellant S. Burk asserts that the District Court erred in denying her
motion for judgment of acquittal. According to S. Burk, there was
insufficient evidence presented at trial to sustain her conviction for
conspiracy to commit arson in violation of 18 U.S.C. § 844(n) in connection
with 18 U.S.C. § 844(i).
Under 18 U.S.C. § 844(i) and (n), it is a crime to conspire to
maliciously damage or destroy, or attempt to damage or destroy, “by means
of fire . . . any building . . . or other real or personal property used in
interstate or foreign commerce or in any activity affecting interstate or
foreign commerce.” 18 U.S.C. § 844(i); see id. § 844(n) (making it a crime
to conspire to commit arson under § 844(i)). In general, in order to prove a
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conspiracy, the Government must prove: (1) an agreement by two or more
individuals to commit an unlawful act; (2) knowing and voluntary
participation; and (3) an overt act by a conspirator. 3 See United States v.
Gonzalez, 834 F.3d 1206, 1219 (11th Cir. 2016) (concerning conspiracies
under 18 U.S.C. § 371). The Government may prove a conspiracy with
circumstantial evidence alone “[b]ecause the essential nature of conspiracy
is secrecy.” 4 United States v. Adkinson, 158 F.3d 1147, 1153 (11th Cir.
1998).
We review challenges to the sufficiency of the evidence de novo.
United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). To determine
whether the District Court erred by denying S. Burk’s motion for judgment
of acquittal, we must view the evidence in the light most favorable to the
Government, 5 and decide whether a rational trier of fact could have found
the essential elements of the charge were proven beyond a reasonable doubt.
3 We assume for purposes of this opinion that the Government must prove an overt act to sustain a conviction for conspiracy to commit arson under § 844(n). 4 Additionally, because the essence of an illegal conspiracy is the agreement to commit an unlawful act, the Government need not prove that a defendant was successful in carrying out the illegal object of the conspiracy. See Iannelli v. United States, 420 U.S. 770, 777 (1975). 5 All reasonable inferences and credibility choices are made in the Government’s favor. See United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005) (citing United States v. Lyons, 53 F.3d 1198, 1202 (11th Cir. 1995)).
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See United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008) (citing
United States v. Ward, 197 F.3d 1076, 1079 (11th Cir. 1999)).
A review of the record shows that there was substantial evidence
establishing S. Burk’s knowledge of and voluntary participation in the
conspiracy to commit arson. The evidence showed S. Burk filed insurance
claims for personal property losses she claimed to have suffered in three
separate fires that were intentionally set 6 and which occurred at Walker-
owned properties where she was a tenant. One of the fires occurred just days
before her insurance policy was scheduled to be canceled. S. Burk also made
false statements in support of insurance applications, hiding her prior fire
losses.7
Though the evidence failed to show that S. Burk herself was involved
in setting the houses on fire, a reasonable jury could conclude from these
facts that S. Burk was aware of and joined in the broader scheme to set
6 Expert testimony at trial established that the fires at the Walker-owned properties were intentionally set. When we refer to “arsons” or “intentionally-set fires” herein, such characterizations are based on the expert conclusions admitted at trial, which Appellants do not dispute on appeal. 7 At the trial, Mary Tillman, who worked for Insurance Services of the South in Moultrie, Georgia, testified that in 2002, she assisted S. Burk in completing an insurance coverage application for the Walker-owned property at 1097 Bondvilla Drive. Tillman further testified that S. Burk signed the application stating that she had never had a policy declined or cancelled and that she had no prior fire losses in the last three years. However, the Government entered into evidence a sworn statement by S. Burk in which she stated that in 1999 she experienced a fire loss at the Walker-owned property at 410 Oak Street.
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houses on fire and file fraudulent insurance claims. Accordingly, viewing
the trial evidence in the light most favorable to the Government, we
conclude that a reasonable jury could find beyond a reasonable doubt that S.
Burk knowingly entered into and voluntarily participated in the conspiracy
to commit the arsons at issue in this case. 8
III. Appellant Darryl Burk’s Claims
Appellant D. Burk appeals his conviction for conspiracy to commit
mail fraud, in violation of 18 U.S.C. § 1349 in connection with 18 U.S.C. §
1341. D. Burk asserts that the District Court committed reversible error by
not granting his: (a) motion for judgment of acquittal; (b) motion for a
mistrial following Secret Service Agent Stan Burruss’ testimony that law
enforcement had asked D. Burk to take a polygraph examination; (c) motion
for a mistrial following Special Agent Steve Sprouse’s testimony regarding
an unindicted co-conspirator’s past conviction for arson; (d) motion to
suppress statements obtained from D. Burk at his home on the basis that they
were obtained in violation of his Fifth Amendment rights; and (e) motion to
sever his case from that of Walker. D. Burk further asserts that his
8 While S. Burk was found guilty of multiple conspiratorial objects, we need not consider the evidence as to the objects of mail fraud and false declarations because “[a] guilty verdict in a multi-object conspiracy will be upheld if the evidence is sufficient to support a conviction of any of the alleged objects.” United States v. Ross, 131 F.3d 970, 983 (11th Cir. 1998).
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conviction violates the Due Process Clause of the Fifth Amendment because
18 U.S.C. § 1349 did not take effect until July 2002, while the charged
conspiracy in this case began in 1996. We address each claim in turn.
a. Denial of the Motion for Judgment of Acquittal
D. Burk argues that there was insufficient evidence presented at trial to
sustain his conviction for conspiracy to commit mail fraud. To sustain a
conviction for mail fraud, the Government must show that the defendant: (1)
intentionally participated in a scheme or artifice to defraud another of money
or property; and (2) used or caused the use of the mails or wires for the
purpose of executing the scheme or artifice. See United States v. Ward, 486
F.3d 1212, 1222 (citing United States v. Hewes, 729 F.2d 1303, 1320 (11th
Cir. 1984)). “Proof of specific intent to use the mails or wire service” is not
required, only proof that the defendant “agreed to engage in a scheme to
defraud in which [he] contemplated that the mails [or wire service] would
likely be used.” United States v. Ross, 131 F.3d 970, 981 (11th Cir. 1997)
(citing United States v. Massey, 827 F.2d 995, 1002 (5th Cir. 1987)). In
order to prove conspiracy under 18 U.S.C. § 1349, the Government must
prove that: (a) a conspiracy existed; (b) the defendant knew of the
conspiracy; and (c) the defendant knowingly and voluntarily joined it. See
U.S. v. Moran, 778 F.3d 942, 960 (11th Cir. 2015) (citing
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Vernon, 723 F.3d 1234, 1273 (11th Cir. 2013)). “Because the crime
of conspiracy is ‘predominantly mental in composition,’ the [G]overnment
may prove these elements by circumstantial evidence.” Id.
The record shows that there was sufficient evidence of D. Burk’s
knowledge of and involvement in the charged conspiracy. The Government
proved that D. Burk purchased a fraudulent signature stamp that was used to
cash an insurance check for a fire loss at one of the Walker-owned properties
that was damaged by arson. D. Burk also falsely represented in an insurance
application the value of a Walker-owned property which later was damaged
by an arson. After the fire, he filed a false insurance claim for losses at the
property even though he did not live there.
D. Burk claims that this conduct, while potentially unlawful in and of
itself, did not connect him to the broader conspiracy and did not occur
within the applicable statute of limitations. But the Government’s evidence
against D. Burk extended beyond this conduct and was sufficient to establish
his knowledge of and participation in the single, unified conspiracy charged
in the indictment. In particular, the 2007 search of D. Burk’s residence
turned up a number of documents showing D. Burk’s connections to the
broader conspiracy. These materials included: (a) the business card of Farrell
Whiddon, a claims adjuster who handled S. Burk’s 2002 fire loss claim; (b)
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the business card of Richard Wallace, a claims adjuster who handled a 1997
fire-loss claim relating to a Walker property; 9 (c) repair estimates showing
that D. Burk worked for Northside Home Remodeling, a company owned by
Walker that submitted repair estimates to insurance companies for fire
damage at certain of the Walker-owned properties; and (d) various other
documents showing D. Burk’s connections to unindicted co-conspirators and
other Walker-owned properties and arsons. Viewing the evidence in the light
most favorable to the Government, we conclude that a rational trier of fact
could have found the essential elements of the charge were proven against
D. Burk beyond a reasonable doubt. See Mercer, 541 F.3d at 1074.
As for D. Burk’s contention that his conviction violated the statute of
limitations, the District Court properly rejected this argument. See United
States v. Harriston, 329 F.3d 779, 783 (11th Cir. 2003) (we review de novo
the court’s interpretation and application of the statute of limitations).
Because his conspiracy conviction under § 1349 “does not require the
commission of an overt act,” Gonzalez, 834 F.3d at 1220, the Government
simply needed to “allege[] and prove[] that the conspiracy continued into the
limitations period.” Harrison, 329 F.3d at 783. “A conspiracy is deemed to
9 S. Burk was residing at such property when it experienced fires in both 2002 and 2006.
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have continued as long as the purposes of the conspiracy have neither been
abandoned nor accomplished and the defendant has not made an affirmative
showing that the conspiracy has terminated.” Id. The Government
adequately alleged and proved that the conspiracy continued into the
limitations period, whether it was ten or five years from the date of the
indictment in 2012. 10 The evidence tended to show that Walker and his co-
conspirators intended to continue to defraud insurance companies and
financial institutions with no end in sight. Because D. Burk knowingly
participated in this conspiracy, his continued participation is presumed. See
id. And D. Burk failed to overcome this presumption by showing “that he
affirmatively withdrew from the conspiracy or that the final act in
furtherance of the conspiracy [ ] occurred.” See id.
b. Motion for a Mistrial Based on Polygraph Testimony
D. Burk argues that the District Court abused its discretion by denying
his motion for mistrial based on Secret Service Agent Burruss’ testimony on
the fourth day of trial that he asked D. Burk whether he would be willing to
submit to a polygraph examination. See United States v. Melton, 739 F.2d
10 The limitations period for the crime of mail fraud affecting a financial institution is ten years. See 18 U.S.C. § 3293(2). For mail fraud not affecting a financial institution, the limitations period is five years. See 18 U.S.C. § 3282.
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576, 579 (11th Cir.1984) (“The decision whether or not to grant a mistrial is
within the sound discretion of the trial court.”).
In describing an encounter at D. Burk’s home regarding the fraudulent
signature stamp, 11 Secret Service Agent Burruss testified that he asked D.
Burk whether he would be willing to submit to a polygraph examination. D.
Burk’s counsel immediately objected, preventing Secret Service Agent
Burruss from testifying to D. Burk’s response. The District Court sustained
D. Burk’s objection. D. Burk then made a motion for a mistrial arguing that
while the jury had not heard whether D. Burk had agreed to a polygraph
examination, counsel’s objection to such testimony suggested that D. Burk
did not agree to law enforcement’s request, which he insisted was highly
prejudicial to D. Burk. The Court denied the motion and gave the jury the
following curative instruction:
[W]hen we began the case, and I gave you some preliminary instructions, one of the ones I told you, that you consider only the evidence in the case, and also that if the Court told you to disregard any particular matter, that you must disregard it and not consider it. There was a brief reference to a lie detector test exam. There is no evidence in this case regarding that. You should disregard that entirely as to making your decision about this case. It’s to be disregarded, it’s not in the evidence, and it may not be relied upon by you for any purpose whatsoever.
11 See Section III.a supra.
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“The decision of whether to grant a mistrial lies within the sound
discretion of a trial judge as he or she is in the best position to evaluate the
prejudicial effect of improper testimony.” See U.S. v. Perez, 30 F.3d 1407,
1410 (11th Cir. 1994) (internal quotation omitted) (citing United States v.
Holmes, 767 F.2d 820, 823 (11th Cir. 1985)). Given Secret Service Agent
Burruss was prevented from testifying to D. Burk’s response, the record
supports the District Court’s assessment that the effect of this testimony was
unclear. While the comments may have carried some minimal prejudice, the
effect of the testimony was far from “devastating,” as D. Burk claims.
Furthermore, when a court gives a curative instruction regarding
improper testimony, as the District Court did in this case, “it supports the
court’s decision not to grant a mistrial by decreasing the possibility of undue
prejudice.” Id. at 1411. Additionally, “[w]here the district court gives a
curative instruction, the district court’s refusal to declare a mistrial will not
be overturned unless the evidence is so highly prejudicial as to be
incurable.” United States v. Dodd, 111 F.3d 867, 870 (11th Cir. 1997)
(internal citation omitted). Here, Secret Service Agent Burruss’ truncated
comment, in the context of the trial as a whole, was not so prejudicial as to
be incurable by the court’s instruction. Accordingly, we find that the District
Court did not abuse its discretion in denying D. Burk’s motion for a mistrial.
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c. Unindicted Co-Conspirator Testimony
D. Burk argues that the District Court abused its discretion by denying
his motion for a mistrial based on Special Agent Sprouse’s testimony on the
ninth day of trial that Benjamin Norwood, an unindicted co-conspirator who
allegedly directed D. Burk to purchase the fraudulent signature stamp, 12
“had a property fire” that was “the result of an arson, and [Norwood] was
subsequently convicted of that.” D. Burk’s counsel objected to Special
Agent Sprouse’s testimony on relevance grounds. The Court sustained the
objection and directed the jury to “disregard any reference to other
convictions of persons not on trial.” Following such instruction, D. Burk
renewed his motion for a mistrial, arguing that the earlier polygraph
testimony 13 was “magnified” by the testimony regarding Norwood. D. Burk
further argued that the Government was trying to link his client to Norwood
and that he had no idea to what arson the witness was referring. The District
Court denied D. Burk’s motion and issued the following additional curative
instruction to the jury:
Ladies and gentleman, as I have told you earlier in the case that from time to time the Court will instruct you as it has from time to time that certain matters may not be considered and are not evidence in the case, and you must follow that instruction. The reference to someone
12 See Section III.a supra. 13 See Section III.b supra.
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named Norwood having committed arson and having been convicted, you should disregard. There is no evidence and no matter or person before you on those charges at all, and those are matters that you may not consider at all. You must disregard them.
The District Court did not abuse its discretion in denying D. Burk’s
mistrial motion. The Court reasonably concluded that Secret Service Agent
Burruss’ testimony regarding the polygraph did not so compound the error
from Special Agent Sprouse’s testimony, five days later, regarding
Norwood, that a mistrial was necessary. Moreover, the Court promptly gave
a specific curative instruction, and we presume that juries follow their
instructions. United States v. Roy, 855 F.3d 1133, 1186–88 (11th Cir. 2017)
(en banc). For both of these reasons, the likelihood that the Norwood
testimony had a substantial impact on the jury’s verdict is minimal. See
Perez, 30 F.3d at 1411. We therefore find that the District Court did not
abuse its discretion in denying D. Burk’s second motion for a mistrial.
d. Suppression of D. Burk’s Statements to Agent Van Ellison
D. Burk contends that the statements he made during the execution of
a search warrant on his home should have been suppressed because they
were the product of a custodial interrogation obtained in violation of his
Fifth Amendment rights. A district court’s ruling on a motion to suppress
presents a mixed question of law and fact. United States v. Santa, 236 F.3d
662, 668 (11th Cir. 2000). “We are required to accept the district court’s
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factual findings as true, unless those findings are shown to be clearly
erroneous.” Id. The district court’s application of the law to the facts,
however, is reviewed de novo. Id.
A suspect who is in custody is entitled to Miranda warnings before
being interrogated. United States v. Lall, 607 F.3d 1277, 1284 (11th Cir.
2010). To determine whether a suspect is in custody, “we look to whether he
was physically deprived of his freedom in any significant way or if a
reasonable person in the defendant’s position would have understood that his
freedom was so restrained.” Id. “[T]he ultimate inquiry is simply whether
there is a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.” Id. (quoting Yarborough v. Alvarado, 541
U.S. 652, 662 (2004)). We examine whether a suspect was in custody under
the totality of the circumstances. United States v. Luna-Encinas, 603 F.3d
876, 881 (11th Cir. 2010).
The evidence elicited at the pretrial suppression hearing (the
“Suppression Hearing”) was consistent with the District Court’s finding that
D. Burk was not subject to custodial interrogation when responding to Agent
Van Ellison’s questioning.14 According to the evidence, Agent Van Ellison
14 It is worth noting that D. Burk did not testify at the suppression hearing and did not call any witnesses on his behalf.
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and four other law enforcement officers went to D. Burk’s residence at
around seven o’clock in the morning to execute a search warrant. After the
officers knocked and announced their presence, D. Burk’s daughter came to
the door, said her father was sleeping and went to get him. D. Burk then
came to the door and admitted three of the officers. The officers provided
him with a copy of the search warrant and explained why they were there.
They also asked him to take a seat in his living room. While seated in the
living room, Agent Van Ellison asked D. Burk several questions from a
prepared questionnaire regarding D. Burk’s connections to various persons
and businesses involved in the conspiracy. One other officer was present in
the room at the time. Agent Van Ellison recorded D. Burk’s answers, which
the Government used against him at trial. During the encounter, the officers
did not draw their weapons, D. Burk was not handcuffed and the officers did
not use abusive or threatening language. D. Burk also did not ask to speak
with an attorney.
D. Burk asserts that having multiple armed police officers enter and
search his home and exercise dominion and control over his belongings is
tantamount to being in custody. D. Burk cites Orozco v. Texas, 394 U.S. 324
(1969) for this proposition. However, Orozco is completely distinguishable
from the instant matter. In that case, four officers entered the defendant’s
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boarding house room at four o’clock in the morning while he was asleep.
From the moment they entered his room, the officers began questioning the
defendant. According to the officers’ testimony, the defendant was not free
to leave and was under arrest. That is not the case here. The officers did not
testify that D. Burk was under arrest or that he was not free to cease
answering questions. The officers did not storm into D. Burk’s bedroom
while he was asleep, but instead waited for him to wake up and meet them
outside of his home before initiating their search. Furthermore, the officers
did not confine D. Burk to a small room during their questioning or
physically restrain him in any way. Rather, the questioning occurred on the
familiar ground of D. Burk’s living room and while he was unrestrained. See
Luna-Encinas, 603 F.3d at 882 (“[W]e are much less likely to find the
circumstances custodial when the interrogation occurs in familiar or at least
neutral surroundings, such as the suspect’s home.” (quotation marks
omitted)).
These facts also distinguish this case from two other cases cited by D.
Burk, both of which involved a “police-dominated” atmosphere and physical
separation or restraint of the defendant. D. Burk cites United States v.
Cavasoz, 668 F.3d 190 (5th Cir. 2012), but that case involved a dozen
officers and a defendant who was handcuffed and questioned in a small
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room with the door closed. Similarly, United States v. Craigshead, 539 F.3d
1073 (9th Cir. 2008), also cited by D. Burk, involved a defendant who was
interrogated by eight officers in the storage room of his house with the door
shut. Cavasoz and Craigshead are, therefore, inapposite.15 Accordingly, we
find that the District Court made no clear error in its findings of fact
regarding the admissibility of the subject statements, and upon de novo
review, correctly applied the law to those facts.
e. Motion to Sever
D. Burk argues that the District Court erred by denying his motion to
sever his trial from that of Walker. Joinder of defendants is proper “if they
are alleged to have participated in the same . . . series of acts or transactions
constituting an offense or offenses.” Fed. R. Crim. P. 8(b). “If the jury
cannot keep separate the evidence that is relevant to each defendant and
render a fair and impartial verdict as to each, severance should be
granted.” United States v. Carrazana, 921 F.2d 1557, 1567 (11th Cir. 1991).
We have held:
In conspiracy cases like this one, the general principle is well-settled that “persons who are charged together should also be tried together.” In evaluating a motion for severance, this court must determine whether the prejudice inherent in a joint trial outweighs the interests in judicial
15 Furthermore, both cases are not binding on this Court as they were decided outside of our Circuit.
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economy. To establish that the district court’s balancing of interests was an abuse of discretion, [the defendant] must “demonstrate that a joint trial resulted in specific and compelling prejudice to the conduct of his defense.” “Compelling prejudice” is demonstrated by a showing that the jury was unable to make an individualized determination as to each defendant.
United States v. Adams, 1 F.3d 1566, 1578 (11th Cir. 1993) (quoting United
States v. Saget, 991 F.2d 702, 707 (11th Cir. 1993)). “This is a heavy
burden, and one which mere conclusory allegations cannot carry.” United
States v. Hogan, 986 F.2d 1364, 1375 (11th Cir. 1993). Furthermore,
“cautionary instructions to the jury to consider the evidence as to each
defendant separately are presumed to guard adequately against
prejudice.” United States v. Gonzalez, 940 F.2d 1413, 1428 (11th Cir. 1991).
See also United States v. Smith, 918 F.2d 1501, 1509–10 (11th Cir. 1990)
(the possible prejudicial effects of the disparity of evidence “can be
significantly alleviated if the trial judge is careful to instruct the jury that it
must consider the evidence against each defendant on a separate and
independent basis.”).
D. Burk has not identified any specific prejudice he suffered as a
result of the joint trial. D. Burk simply argues that the jury’s verdict that he
participated in the overall conspiracy based solely on a finding that he
conspired to commit mail fraud establishes that he was prejudiced by being
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tried jointly with Walker. 16 But, to the contrary, the jury’s verdict indicates
that the evidence presented against Walker did not prejudice D. Burk as the
jury found Walker guilty of every object of the overall conspiracy, but only
found D. Burk guilty of conspiracy to commit mail fraud. Furthermore, the
District Court instructed the jury that it “must consider the case of each
Defendant separately and individually” and that if they found “one
Defendant guilty or not guilty of the crime charged, that must not affect
[their] verdict for the other Defendants.” The jury’s verdict indicates that it
followed the District Court’s instruction to consider the evidence against
each Defendant on a separate and independent basis. We therefore conclude
that the District Court did not abuse its discretion in denying D. Burk’s
severance motion.
f. Due Process Violation
D. Burk contends that his conviction violates the Due Process Clause
of the Fifth Amendment because 18 U.S.C. § 1349 did not become effective
until July 2002, six years after the charged conspiracy began. Analogizing
the alleged violation to a violation of the Ex Post Facto Clause, D. Burk
contends that the District Court violated his due process rights by
16 D. Burk also asserts that the Government did not prove that he was a member of a single overall conspiracy from which he never withdrew. In light of our discussion in Section III.a supra, D. Burk’s second argument is unavailing.
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adjudicating him guilty and sentencing him under § 1349 when the evidence
failed to show that he committed overt acts in furtherance of the conspiracy
after that date.
D. Burk raises this argument for the first time on appeal. At the
District Court level, D. Burk only asserted a violation of the statute of
limitations, 17 not the Due Process Clause.18 Ordinarily, a defendant’s claim
that his sentence was imposed in violation of the Ex Post Facto Clause or
another constitutional guarantee is reviewed de novo. United States v.
Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000). However, where a defendant
fails to raise the error in the District Court, the review is for plain error.
United States v. Madden, 733 F.3d 1314, 1319 (11th Cir. 2013). D. Burk’s
argument fails under either standard.
Looking to the case law within our Circuit, we conclude that when a
statute takes effect during an ongoing conspiracy and criminalizes the
17 We reject D. Burk’s statute of limitations argument for the reasons explained in Section III.a supra. 18 The District Court specifically addressed the omission of this issue in its Order denying D. Burk’s motion for judgment of acquittal:
The Court also notes that one of the conspiracy statutes charged, 18 U.S.C. § 1349, was not enacted until 2002, six years after the Count One conspiracy was alleged to have begun. No Party has taken up the issue of retroactivity at any point during this case, and the Court does not herein address it because the Court . . . finds sufficient evidence to support a finding that a § 1349 conspiracy to commit mail fraud, as to Shirley Burk and Darryl Burk, and mail, wire, and bank fraud, as to Elbert Walker, existed after the enactment of § 1349.
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conduct of the conspiracy, the new statute applies if the conspiracy continues
beyond the new statute’s effective date, even if no overt act by the defendant
is shown to have occurred thereafter. 19 See Futrell, 209 F.3d at 1289. In
Futrell, we held that the Mandatory Restitution to Victims Act, 18 U.S.C. §
3663A (the “MVRA”), 20 applied to criminal conduct which began prior to
the MVRA’s effective date but continued after the MVRA went into effect:
[If] the MRVA takes effect during an ongoing conspiracy, then the MVRA subjects the conspiratorial acts occurring before the statutory change to the new provision . . . The ongoing nature of the conspiracy enables application of the new statute without violating the Ex Post Facto Clause. Futrell, 209 F.3d at 1289–90.
Similarly, in United States v. Nixon, 918 F.2d 895 (11th Cir. 1990),
we applied the United States Sentencing Guidelines to a conspiracy
conviction where the conspiracy commenced before the guidelines were
promulgated but continued after their adoption. While we acknowledged in
Nixon that a conspirator may be able to escape the effect of a later provision
19 The charged conspiracy in the instant matter began in 1996, six years before § 1349’s enactment. Prior to 2002, conspiracy to commit fraud offenses was charged under 18 U.S.C. § 371, which required evidence of an overt act in order to convict. United States v. Rogers, 769 F.3d 372, 380 (6th Cir. 2014). In 2002, Congress enacted § 1349, which created a separate conspiracy provision for fraud offenses, raised the maximum penalty for conspiracy to commit fraud offenses from five to ten years, and eliminated the overt-act requirement. Id. at 380–81. Thus, after 2002, the Government was not required to prove that D. Burk committed an overt act in furtherance of the charged conspiracy in order to convict him of a violation of § 1349. 20 The MVRA went into effect on April 24, 1996.
22 Case: 16-14248 Date Filed: 06/14/2018 Page: 23 of 23
if he shows he withdrew from the conspiracy before such provision went
into effect, id. at 906, that’s not the case in the instant matter. We further
held in Nixon that the Government did not need to prove that the defendant
committed any act in furtherance of the conspiracy after the enactment of the
new provision or that the defendant knew that his co-conspirators had acted
after the deadline. Id. at 907.
Accordingly, in the instant matter, the Government did not have to
prove that D. Burk committed an overt act in furtherance of the charged
conspiracy after 2002, only that the conspiracy continued beyond § 1349’s
effective date. Given that the Government proved that D. Burk knowingly
participated in a conspiracy that lasted well after § 1349’s enactment in
2002, the District Court’s application of § 1349 to D. Burk did not violate
due process. Therefore, the District Court did not commit plain error by
entering judgment against and imposing sentence on D. Burk.
AFFIRMED.