Conspiracy if Proved by Circumstantial Evidence
Arson for profit is the most evil form of insurance fraud. Property is destroyed and people are injured or killed as a result of the arson caused fire. People who work together to defraud insurers by means of arson for profit schemes have unmitigated gall, have no moral compass, and are dangerous to anyone near the property they destroy.
When caught in a conspiracy to commit arson for profit the unmitigated gall of the criminals usually result in a trial and, if convicted, an appeal. In United States Of America v. Shirley Denise Burk, Darryl Burk, No. 16-14248, United States Court Of Appeals For The Eleventh Circuit (June 14, 2018) after conviction the inevitable appeal happened and the Eleventh Circuit, with detail, resolved the claims.
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 (“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.
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.
Shirley Burk’s Singular Claim
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.
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)] making it a crime to conspire to commit arson under § 844(i)).
In general, in order to prove a 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. The Government may prove a conspiracy with circumstantial evidence alone because the essential nature of conspiracy is secrecy.
To determine whether the District Court erred by denying S. Burk’s motion for judgment of acquittal the court must decide whether a rational trier of fact could have found the essential elements of the charge were proven beyond a reasonable doubt.
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 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.
Though the evidence failed to show that S. Burk herself was involved in setting the houses on fire, a reasonable jury could (and did) conclude from these facts that S. Burk was aware of and joined in the broader scheme to set houses on fire and file fraudulent insurance claims. Accordingly, viewing the trial evidence in the light most favorable to the Government, the Eleventh Circuit concluded 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 multiple arson fires at issue in this case.
Appellant Darryl Burk’s Claims
Burk appealed his conviction for conspiracy to commit mail fraud. D. Burk asserted that the District Court committed reversible error by not granting his: (a) motion for judgment of acquittal and that his conviction violates the Due Process Clause of the Fifth Amendment.
In order to prove conspiracy 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. Because the crime of conspiracy is predominantly mental in composition, the Government may (and did) prove these elements by circumstantial evidence.
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.
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. 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.
The Eleventh Circuit refused to fall for the arguments posed by the defendants after their conviction. It recognized that the circumstantial evidence establishing the conspiracy to commit arson for profit was overwhelming. Arson is an evil crime and it took the government a great deal of time to catch these conspirators and their convictions may deter others.
© 2018 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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