Three Squares and a Cot – Arson Doesn’t Pay

Arson Scheme Finally Stopped

Elbert Walker, Jr., and his relatives, Shirley and Darryl Burk, were convicted of one count of conspiracy to commit multiple objects, including arson, bank fraud, mail fraud, wire fraud, bankruptcy fraud, possession of a forged security, and making false declarations in court. Defendant was also charged separately with two counts of possession of a firearm by a convicted felon and one count of possession of a firearm with an obliterated serial. .

In United States Of America v. Elbert Walker, Jr., No. 16-13642, United States Court Of Appeals For The Eleventh Circuit (February 1, 2019) Walker was convicted after a jury found him guilty of:

  • conspiracy to commit arson,
  • bank fraud,
  • mail fraud,
  • wire fraud,
  • bankruptcy fraud,
  • possession of a forged security,
  • making false declarations in court,
  • two counts of being a felon in possession of a firearm, and
  • possession of a firearm with an obliterated serial number.

BACKGROUND

Conspiracy to Commit Arson

During its case-in-chief, the Government presented evidence of a scheme spanning more than a decade in which Defendant, the Burks, and others conspired to acquire various properties and transfer them among each other, to obtain insurance coverage on the properties, to set fire to the properties, and then to fraudulently make insurance claims and collect money for the fire losses. The evidence indicated that the conspiracy involved five properties, nearly all of which Defendant owned or managed, in Georgia.

Verdict and Post-Trial Motions

Following the Government’s case-in-chief, Defendant moved for a judgment of acquittal on all counts, arguing that insufficient evidence showed that the alleged co-conspirators entered into an agreement, that he was the same individual who was convicted in New Jersey, and that the gun with an obliterated serial number belonged to him.

After the guilty verdict Defendant renewed his motion for a judgment of acquittal. The district court denied the motion in a written order, concluding that the Government’s evidence was sufficient to support the jury’s finding that there was a common purpose among Defendant and the Burks to set fires and fraudulently collect insurance money. The court noted that all of the fires alleged in the indictment followed the same pattern: the owner or tenant obtained insurance; shortly thereafter a fire occurred; and then an insurance loss claim was filed, usually with the same form used in previous fire incidents. The court also found the evidence sufficient to support Defendant’s convictions on the firearms charges.

At sentencing, the court imposed concurrent prison terms of 121 months for the conspiracy charge, 120 months for each of the firearm charges, and 60 months for possession of a firearm with an obliterated serial number.

DISCUSSION

Under Federal Rule of Criminal Procedure 29, a district court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).

To support a conviction for conspiracy to commit arson, the Government must prove that the defendant conspired to

  1. maliciously damage or destroy
  2. by means of a fire or explosive
  3. a building, vehicle, or other real or personal property, and
  4. that the property was used in interstate commerce or in an activity affecting interstate commerce.

A conspiracy occurs when two or more individuals agree to commit a crime and the defendant knowingly and voluntarily joins the agreement. The Government may establish a conspiracy through circumstantial evidence.

Specifically, the evidence showed a pattern of conduct between 1996 and 2006, where Defendant, the Burks, or a third party would acquire insurance coverage on a property owned, or recently sold, by Defendant. Shortly thereafter, the property would experience a fire, and Defendant, the Burks, or an insured third party would submit an insurance claim for alleged losses. Expert testimony established that several of these fires were intentionally set, and at least one insurance company denied a claim after reaching the same conclusion.

Given that Defendant and his associates repeatedly employed the same method of defrauding insurance companies the jury reasonably could infer Defendant’s knowing and voluntary participation in an agreement to commit arson.

Because sufficient evidence supported the jury’s finding that Defendant conspired to commit arson, the judgment and sentence were affirmed.

ZALMA OPINION

It takes a certain amount of unmitigated gall to appeal a conviction after the state proved multiple acts of arson for profit and insurance fraud and claim that it never happened. What should be amazing to anyone reading about this crime is why it took so long to catch Walker and his co-conspirators who were not even smart enough to try a different method to defraud insurers. They concluded if it worked once it would work again. They were right for at least five different acts of arson for profit and only got caught on the last try because they were greedy. Mrs. Gump was proved right again: “stupid is as stupid does.”


© 2019 – 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 zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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