U.S. v. Curry, 05-5090.

• Decision Date: 28 August 2006
• Docket Number: No. 05-5173.,No. 05-5090.,05-5090.,05-5173.
• Citation: 461 F.3d 452
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth W. CURRY, II, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Kenneth W. Curry, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

461 F.3d 452

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth W. CURRY, II, Defendant-Appellee.

United States of America, Plaintiff-Appellee, v. Kenneth W. Curry, II, Defendant-Appellant.

No. 05-5090.

No. 05-5173.

United States Court of Appeals, Fourth Circuit.

Argued May 26, 2006.

Decided August 28, 2006.

ARGUED: John Staige Davis, V, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia; Robert John Krask, Special Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for the United States. William Todd Watson, Hargett & Watson, P.L.C., Glen Allen, Virginia, for Kenneth W. Curry, II. ON BRIEF: Paul J. McNulty, United States

Attorney, Alexandria, Virginia, for the United States.

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.

GREGORY, Circuit Judge.

On May 31, 2005, after a six-day trial, a jury convicted Kenneth W. Curry, II of thirteen counts of mail fraud, nine counts of wire fraud, and three counts of engaging in unlawful monetary transactions, in violation of 18 U.S.C. §§ 1341, 1343, and 1957, respectively. Thereafter, the district court sentenced Curry to twelve-month terms of incarceration on each count, to be served concurrently and followed by twelve months of home detention and three years of supervised release. The government appealed, claiming that the sentence was unreasonable. Curry cross-appealed, challenging the district court's denial of his motion for judgment of acquittal. For reasons set forth below, we affirm Curry's conviction, but vacate his sentence and remand for resentencing.

I.

In 2000, Curry began using the Internet auction site eBay to buy and sell items. Between 2003 and 2004, Curry sold large volumes of coins on eBay under the account name "kwciicoins." Curry engaged in thousands of successful transactions, earning an eBay positive feedback rating of over 96%.

In the summer and fall of 2004, Curry was on the verge of financial ruin. His security system installation company was over ninety days past due on a $138,000 debt, and he owed the IRS $98,000. The government contends that Curry turned to his "hobby" of dealing in coins to get out of his financial straits.

At the end of summer 2004, Curry placed up for auction on eBay large volumes of one-ounce gold coins, known as "Gold Eagles."¹ Between August and October 2004, Curry sold 381 Gold Eagles to twenty-one different buyers. According to the government, Curry made a series of false representations in his advertisements of the coins. For example, he represented that (1) the coins were located in Virginia Beach, J.A. 786; (2) the coins were "part of a larger estate auction that [would] take about three months to complete," id. at 777; (3) the coins were of exceptional quality and likely only to have been seen by the mint or the original buyer, id.; and (4) he would provide a full refund to all unhappy buyers, id. at 787. The twenty-one buyers paid Curry approximately $148,000 for the 381 coins. Of the 381 coins purchased, Curry delivered only 44 of the coins, which represented only partial deliveries to two purchasers.

In September 2004, one buyer, Charles Clarkson, took Curry to task. Clarkson had paid $16,811 for 43 gold coins in late August 2004. When he discovered that his check had been cashed on September 1, 2004, Clarkson began emailing and telephoning Curry. On September 25, 2004, Clarkson spoke with Curry, telling Curry that if he did not receive a refund, he would come to Virginia Beach and "swear out a complaint and have [Curry] arrested." J.A. 109. Within ten minutes of the call, Curry used PayPal² to refund Clarkson's money. Id. at 115. Curry paid Clarkson an additional $1,362, purportedly to compensate Clarkson for his troubles, to cover PayPal fees, and to accommodate the increase in the price of gold. Id.

Following his interaction with Clarkson, Curry composed an email to most of the remaining gold coin buyers. He wrote, "UPS is still dealing with 83 some odd missing shipments, a solution . . . is not yet available. Other shipments have been delayed while they work this out." See, e.g., J.A. 780. He offered buyers either a refund of their payments, shipping fees, and PayPal fees; or a Gold Maple Leaf coin and Silver Eagle coin for each Gold Eagle ordered. See, e.g., id. at 780, 807. In response, some buyers requested refunds and others asked for substitute coins. Rather than send refunds or substitute coins, however, Curry cut off nearly all communication with the buyers.³

After receiving a number of complaints, Federal Bureau of Investigation agents conducted a search of Curry's home on December 16, 2004. During the search, agents found a single $20 gold coin. No $50 Gold Eagles were located. Further, the agents discovered records to support the 44 gold coin shipments and various silver coin shipments, but did not locate records showing that Curry had bought coins from an estate. Two receipts, however, showed that he had bought coins from two local coin shops.

The owners of those coin shops testified at trial. They authenticated their respective receipts. Additionally, they testified to the approximate number of coins that they had sold Curry during the interval between August and November 2004. They both denied having sold Curry 381 Gold Eagles.

At trial, Curry explained how UPS was allegedly to blame for the purchasers' non-receipt of the Gold Eagles. Curry attributed all of the problems to events occurring on September 4, 2004. On that day, according to Curry, he took four bags filled with gold coins to a UPS store in Virginia Beach. J.A. 722. He estimated that the bags contained approximately 240 to 416 Gold Eagles, id. at 723, presumably worth between $96,000 and $166,000 (assuming a value of $400 per coin). Curry testified that he turned the coins over to store employee Doramae Wright, but that he never received any shipping receipts or tracking information because the store's computer system was then failing. Curry claimed that several weeks later the UPS store owner notified him that his coins had been lost. Nonetheless, Curry never availed himself of UPS's formal complaint procedures. And, a search of the store's and UPS's computerized records did not locate any shipments from Curry to the buyers, save the partial shipments, and the records revealed that all of Curry's shipments between June and December 2004 had been delivered.

At the close of trial, the government moved to dismiss two counts, and the jury returned a guilty verdict on the remaining counts. Thereafter, Curry filed a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, which the district court subsequently denied.

On September 19, 2005, the district court conducted a lengthy sentencing hearing. At that time, the court heard arguments regarding the Presentence Investigation Report (PSR), which calculated an offense level of 24 and criminal history category of one, resulting in a U.S. Sentencing Guidelines range of 51 to 63 months. The court overruled most of Curry's objections to the PSR, including Curry's objection to the obstruction of justice enhancement, finding by a preponderance of the evidence that Curry committed perjury in his testimony regarding his delivery of several hundred gold coins to a UPS store on September 4, 2004. The court, however, sustained Curry's objection to the enhancement for representing that he was acting on behalf of a charitable organization, stating that the enhancement is typically reserved for instances in which the representation induced a purchase or a gift. Accordingly, the district court adjusted the offense level to 22, which resulted in a Guidelines range of 41 to 51 months. J.A. 1103-04, 1204.

The United States argued for a sentence within the Guidelines range, whereas Curry asked that his efforts toward restitution be taken into account in arriving at a sentence. Curry turned over a $42,000 check derived from the sale of his house and agreed to have the funds from his posting of bond applied to restitution.

Although the Guidelines recommended a term of imprisonment between 41 and 51 months, the district court sentenced Curry to twelve-month concurrent sentences on each count; twelve months of home confinement following his release from prison; supervised release for three years; $122,965.46 in restitution; a $7500 fine; and a $2500 special assessment. The court arrived at this variance sentence because it was impressed with Curry's payment of restitution, J.A. 1123, and believed that Curry did not "set out to run a scam," id. at 1121, and "had every intention of giving the money back," id. at 1122. Although the government had strenuously argued for a within-Guidelines sentence during the sentencing hearing, it did not raise a formal objection after the district court imposed its below-Guidelines sentence. This appeal and cross-appeal followed.

II.

In reviewing Curry's sufficiency of the evidence claim, this Court must determine whether, construing the evidence in the light most favorable to the government, any reasonable trier of fact could have found Curry guilty beyond a reasonable doubt. United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982). In making this determination, the government is given "the benefit of all reasonable inferences from the facts proven to those sought to be established." Id. Thus, "if the record reflects that the Government presented substantial evidence from which a reasonable jury could convict, we must uphold the verdict." United States v. Godwin, 272 F.3d 659, 666 (4th Cir.2001). Moreover, "[w]here there are conflicts in the testimony, it is for the jury and not the appellate court to weigh the evidence and judge the credibility of the witnesses." Id.

When viewed in...