United States v. Richard Hugh ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1033
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Richard A. Hugh, *
*
Appellant. *
*
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Submitted: June 11, 2008
Filed: July 7, 2008
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Before MELLOY, ARNOLD, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
A jury convicted Richard Hugh of intercepting a wire communication in
violation of 18 U.S.C. § 2511(1)(a). On appeal, Hugh argues that the evidence was
insufficient to support his conviction and that the district court1 erred by sentencing
him to 18 months in prison. We affirm the judgment of the district court.
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
I. Background
Richard Hugh was a part-time bail bondsman/bounty hunter in and around
Springfield, Missouri. On April 6, 2005, Hugh’s wife, a bail bond agent, posted
$5,000 bail for Basil Minor. Hugh tried to keep tabs on Minor, but was unsuccessful.
On July 7, 2005, Minor missed his court appearance, and the court forfeited the bond.
Hugh continued to pursue Minor. Believing that Minor regularly communicated with
a woman named Kimberly Loftis, Hugh tapped into the phone line at Loftis’s house.
Several witnesses observed Hugh around the Loftis house on December 23 and
24, 2005. On December 24, Hugh informed Nancy Bertz, who resided with Loftis,
that he was recording all of the telephone conversations at the house. When officers
arrived at Loftis’s house, they found wiretapping equipment affixed to the telephone
box. Police subsequently executed a search warrant at Hugh’s home and found
recordings of telephone conversations from Loftis’s house and equipment that could
be used to tap into a phone line.
When the police interviewed Hugh about his suspicious behavior, Hugh stated,
“I understand, yes I put a tap on her phone.” Hugh recanted during the interview and
at trial. The jury, however, found Hugh guilty of one count of interception of wire
communications, a violation of 18 U.S.C. § 2511(1)(a).
At sentencing, the district court adopted the presentence investigation report
without change. Hugh had a total offense level of 14 and a criminal history category
of I, which yielded an advisory Guidelines range of 15 to 21 months. The district
court applied a 3-level enhancement for committing the offense for the purpose of
economic gain. See U.S.S.G. § 2H3.1. The government argued that Hugh should
have had an even higher offense level because he admitted to tapping phone lines on
previous occasions. The district court, however, rejected the government’s argument.
After considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Hugh
to 18 months in prison and 2 years of supervised release.
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Hugh contends that the evidence was insufficient for a conviction because his
crime required the government to prove he acted with a “bad purpose.” Hugh also
argues that the district court erred by adding 3 offense levels for economic gain and
by failing to adequately consider the § 3553(a) factors.
II. Discussion
We review the sufficiency of the evidence in the light most favorable to the
government and reverse only if no reasonable jury could have found the defendant
guilty beyond a reasonable doubt. United States v. Sykes, 977 F.2d 1242, 1246-47
(8th Cir. 1992). We review factual determinations at sentencing, such as the district
court’s finding that the offense was committed for the purpose of economic gain, for
clear error. United States v. Allebach, 526 F.3d 385, 388 (8th Cir. 2008). We review
the district court’s application of the Guidelines de novo. Id.
Hugh argues that the government was required to prove he acted with a “bad
purpose.” Hugh relies on United States v. Ross, 713 F.2d 389 (8th Cir. 1983). In
Ross, this court considered whether evidence obtained incidentally by a telephone
repairman could be used against a defendant. Id. at 392. This court held that a
telephone repairman could testify to incriminating statements overheard while
repairing a phone line because the repairman did not “willfully” violate § 2511. Id.
at 391-92 (noting that Congress used “willfully” to denote a “bad purpose,” which the
telephone repairman did not have). This court further held that evidence obtained by
the repairman was admissible because his actions fell within the exception for
telecommunication workers in § 2511(2)(a)(I). Id. at 392.
Hugh’s reliance on Ross is misplaced for three reasons. First, Ross focused on
the admissibility of evidence obtained through wiretapping. This case, however, deals
with a conviction under the statute. Second, unlike the telephone repairman, Hugh is
not a telecommunications worker. Therefore, Hugh cannot rely on a statutory
exemption for his conduct. Third, the statute no longer requires that a defendant
“willfully” violate the statute. Compare 18 U.S.C. § 2511(1)(a) (1983) with 18 U.S.C.
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§ 2511(1)(a) (2007). The Government is only required to prove that the act was done
“intentionally.” 18 U.S.C. § 2511(1)(a) (2007).
Hugh’s own admissions indicate that his clear intention was to intercept
communications between Loftis and Minor. Hugh’s intentions are further confirmed
by the recordings of telephone conversations from Loftis’s house that were found in
Hugh’s home. We find that the evidence was sufficient for the jury to convict Hugh.
The district court found that a 3-level enhancement was warranted because the
purpose of the offense was “to obtain direct or indirect commercial advantage or
economic gain.” U.S.S.G. § 2H3.1(b)(1). Hugh argues that no financial gain was
obtained and that the offense was actually motivated by a desire to apprehend a
fugitive.
Evidence presented at trial strongly supports the district court’s finding that
Hugh’s purpose was to obtain financial benefit. It makes no difference that Hugh did
not actually make any money from his offense. The Guidelines do not require that the
defendant actually benefit financially. The Guidelines merely require that the
“purpose” of the offense was economic gain. U.S.S.G. § 2H3.1(b)(1). Hugh’s wife
posted bail for Minor. When Hugh was unable to locate Minor, Hugh went to the
Lawrence County Court and asked for a remittance, which was refused. Hugh
searched for Minor before and after the forfeiture of the bond. This evidence
adequately supports the conclusion that Hugh was trying to recover the $5,000 bond
that his wife posted for Minor. The district court did not commit clear error in finding
that the purpose of Hugh’s actions was economic gain.
Hugh also argues that the district court erred in failing to adequately consider
the § 3553(a) factors. A district court should start with the advisory Guidelines range
and consider all of the § 3553(a) factors. Gall v. United States, 128 S. Ct. 586, 596
(2007). Ultimately, the court must impose a sentence that is “sufficient, but not
greater than necessary.” 18 U.S.C. § 3553(a). While the district court is obliged to
consider all of the § 3553(a) factors, it is not required to “‘categorically rehearse each
of the section 3553(a) factors on the record when it imposes a sentence as long as it
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is clear that they were considered.’” United States v. Austad, 519 F.3d 431, 436 (8th
Cir. 2008) (quoting United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006)).
The district court clearly considered the § 3553(a) factors when sentencing
Hugh. The district court made specific reference to several factors:
But the nature and circumstances here, the seriousness of the offense, the
deterrence here to other people not to boldly go out there and think that
they have the law in their own hands . . . and to protect the public . . . I
think the Guideline range is a reasonable range.
Given that the district court considered the § 3553(a) factors and adequately
explained its reasons for imposing a sentence within the advisory Guidelines range,
we find no procedural or substantive error affecting the reasonableness of the
sentence. See Gall, 128 S. Ct. at 597.
We affirm the judgment of the district court.
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