United States v. Moore , 100 F. App'x 136 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4833
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY LYNN MOORE,
Defendant - Appellant.
No. 03-4834
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MYRA FAULKNER MOORE,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District Judge.
(CR-02-67)
Submitted: May 27, 2004 Decided: June 2, 2004
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rhonda Lee Overstreet, LUMSDEN, OVERSTREET & HANSEN, Roanoke,
Virginia; J. William Watson, WATSON, MORRISON & MILLER, P.C.,
Halifax, Virginia, for Appellants. John L. Brownlee, United States
Attorney, Roanoke, Virginia, Jennie L. M. Waering, Assistant United
States Attorney, Thomas E. Booth, DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Terry L. Moore (No. 03-4833) (Terry), and Myra F. Moore
(No. 03-4834) (Myra) appeal from their jury convictions and
sentences for conspiracy to commit mail and wire fraud, in
violation of 18 U.S.C. § 371 (2000), mail fraud, in violation of 18
U.S.C. 1341 (2000), and wire fraud, in violation of 18 U.S.C.
§ 1343 (2000). The charges stemmed in part from a series of
financial transactions made by the Moores when Terry, the treasurer
of Saint Paul Pentecostal Holiness Church (Church), wrote checks on
the Church’s checking account for their personal expenses. The
district court sentenced Terry to twenty-seven months’
imprisonment, Myra to twenty-one months’ imprisonment, sentenced
them both to three years of supervised release, and ordered $75,000
restitution to the Church, payable jointly. On appeal, the Moores
claim insufficiency of the evidence and claim the district court
erred in its fraud-loss determination and in enhancing the Moores’
offense levels for obstruction of justice. We affirm the Moores’
convictions and sentences.
In evaluating a sufficiency of the evidence challenge,
the jury verdict must be upheld if there exists substantial
evidence, including circumstantial and direct evidence, to support
the verdict, viewing the evidence most favorable to the government.
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In resolving issues
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of substantial evidence, we do not weigh evidence or review witness
credibility, United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989), rather, the credibility of witnesses is within the sole
province of the jury. United States v. Lamarr, 75 F.3d 964, 973
(4th Cir. 1996). We may reverse a jury verdict only when there is
a complete absence of probative facts to support the jury’s
conclusions. Sherrill White Constr., Inc. v. South Carolina Nat'l
Bank, 713 F.2d 1047, 1050 (4th Cir. 1983).
Here, there was ample evidence to support the jury’s
verdict. The evidence demonstrated that wire and mailings related
to the Moores’ VISA, Staples, and Office Max accounts, accounts
established by the Moores in the name of, and without notification
to or authorization by, the Church, were used to purchase goods for
their personal use, including Terry’s personal tuition expenses,
his son’s eyeglasses, and a number of retail, gas, and convenience
store purchases. Additional evidence, construed in the light most
favorable to the Government, established that the Moores paid their
home business printing expenses with Church funds. The Moores made
expenditures for a computer, printer, computer scanner, cordless
system, safe, and computer tax program on the charge cards they had
issued on the Church accounts, which expenditures were neither
authorized by, nor delivered to, the Church. The Government
introduced evidence that the Moores charged the Church excessive
amounts for printing the Church’s bulletins after Terry informed
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the Church that he would print the bulletins without charge to the
Church. Terry wrote checks to himself and to Myra from the
Church’s account for personal expenses, including the payment of
personal and business telephone bills. Myra was not a member of
the Church, and her forgery of Terry’s name on some of the checks,
use of the Church VISA card, and incriminating statement to a
Church official that she would pay back the money with a bank loan
is evidence of her participation in the scheme to defraud the
Church. Terry’s omission of the purpose of the expense on many
checks, false statements to Church officials, and willful
destruction of incriminating financial records are further evidence
of his active participation in the scheme to defraud the Church.
We find this evidence overwhelmingly sufficient to support the
jury’s verdict.*
The Moores next assert that the district court erred in
its finding that the fraud-loss amount exceeded $70,000. We review
for clear error the sentencing court’s fraud-loss determination.
United States v. Pasquantino, 336 F.3d 321, 336 (4th Cir. 2003).
We find that the district court’s finding as to the amount of loss
is fully supported by the testimony of FBI Financial Analyst Vicki
Warner, who testified as to her conclusion that the loss to the
*
While the Moores claim on appeal, as they did at trial, that
the Government’s evidence only established that the purchases were
made without pre-authorization by the Church, this claim is
undercut by the evidence introduced by the Government.
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Church was $99,791.93, based upon her review of the financial
records.
The Moores’ final claim on appeal is that the district
court clearly erred in its enhancement of their sentence for
obstruction of justice pursuant to U.S. Sentencing Guidelines
Manual § 3C1.1 (2002). We find the enhancement to be proper based
on the Moores’ civil lawsuit against Church officials, filed in an
effort to force Church officials to reconsider their decision to
institute criminal action against the Moores, and their production
of a document to the sheriff in which they claimed the officials
had no authority to seek criminal charges against them on the
Church’s behalf.
Accordingly, we affirm the Moores’ convictions and
sentences. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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