United States v. Paul Hurley , 697 F. App'x 501 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30131
Plaintiff-Appellee, D.C. No.
2:15-cr-00336-JCC-1
v.
PAUL G. HURLEY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted August 31, 2017**
Seattle, Washington
Before: McKEOWN and GOULD, Circuit Judges, and FOOTE,*** District Judge.
While Paul Hurley was an Internal Revenue Service (“IRS”) agent, he
conducted a tax audit of Ryan Kunkel’s business, Have a Heart Compassion Care,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Elizabeth E. Foote, United States District Judge for the
Western District of Louisiana, sitting by designation.
Inc. Hurley was indicted under the federal statute prohibiting public officials from
soliciting and receiving bribes and illegal gratuities after Kunkel paid Hurley
$20,000. After a jury convicted Hurley, the district court sentenced him to 30
months in prison followed by three years of supervised release. Hurley appeals his
conviction and his sentence. Because Hurley failed to renew his motion for
judgement of acquittal following the submission of all evidence, we review the
sufficiency of the evidence underlying the conviction for plain error. United States
v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009).
Hurley argues that insufficient evidence supports his conviction for
receiving a bribe under 18 U.S.C. § 201(b)(2). Evidence is legally sufficient if
“any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt” when viewing the evidence in the light most favorable
to the government. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A defendant
may be convicted of receiving a bribe if he “receive[s] a thing of value knowing
that it was given with the expectation that the official would perform an ‘official
act,’ in return,” even if the defendant had no intention of actually performing the
act. McDonnell v. United States, 136 S. Ct. 2355, 2371 (2016).
The evidence at trial showed that Kunkel paid Hurley two cash payments in
connection with a favorable tax audit. Hurley did not expand the audit to include
Kunkel’s related businesses and Hurley’s report represented that Kunkel could not
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make any payments on his tax bill, despite Kunkel’s ability to pay Hurley $20,000.
A rational jury could find that the payments influenced the official act of the tax
audit and induced Hurley to violate his official duties as an IRS agent. See 18
U.S.C. §§ 201(b)(2)(A), (C).
Hurley also challenges his conviction for receiving an illegal gratuity under
18 U.S.C. § 201(c). This conviction was entered as a lesser included offense to the
bribery-solicitation count upon which the jury did not convict. Hurley is precluded
from challenging the jury’s verdict regarding this crime because he asked that the
jury be permitted to consider it as a lesser included offense on this count. United
States v. Butler, 74 F.3d 916, 918 n.1, 924 (9th Cir. 1996) (rejecting argument that
conviction on lesser included offense was improper when defendant himself
requested the challenged instruction). Even if Hurley received nothing of value on
the day he allegedly solicited the $20,000, his actions at trial invited any error in
the verdict. See United States v. Frank, 36 F.3d 898, 903 (9th Cir. 1994) (“The
doctrine of invited error prevents a defendant from complaining of an error that
was his own fault.” (citation omitted)).
Lastly, Hurley argues that the district court erred by imposing a sentencing
enhancement based on an incorrect calculation of the loss amount. The court
committed no clear error in finding that the loss exceeded $550,000, so a 14-level
enhancement was appropriate under the Sentencing Guidelines. See U.S.S.G.
3
§ 2B1.1(b)(1)(H); United States v. Renzi, 769 F.3d 731, 757 (9th Cir. 2014)
(reviewing factual findings at sentencing for clear error).
AFFIRMED.
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