            Case: 16-14248       Date Filed: 06/14/2018      Page: 1 of 23


                                                              [DO NOT PUBLISH]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.
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       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.



                                                2
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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



                                      3
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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)).



                                              4
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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.



                                              5
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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).



                                             6
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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)



                                      8
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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.



                                                9
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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.



                                             10
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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.



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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.




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