United States v. Teofil Brank

FILED NOT FOR PUBLICATION FEB 06 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 15-50467 Plaintiff-Appellee, D.C. No. 2:15-cr-00131-JFW-1 v. TEOFIL BRANK, AKA @JarecWentworth, MEMORANDUM* AKA Jarec Wentworth, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California John F. Walter, District Judge, Presiding Argued and Submitted June 8, 2017 Pasadena, California Before: Reinhardt and Hurwitz,** Circuit Judges, and Berg,*** District Judge. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. ** This case was submitted to a panel that included Judge Kozinski, who recently retired. Following Judge Kozinski's retirement, Judge Hurwitz was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Hurwitz has read the briefs, reviewed the record, and listened to oral argument. *** The Honorable Terrence Berg, United States District Judge for the (continued...) Teofil Brank appeals his convictions for one count of transmitting threatening communications with intent to extort, in violation of 18 U.S.C. § 875(d); two counts of extortion and attempted extortion affecting interstate commerce by nonviolent threat, in violation of 18 U.S.C. § 1951(a) (“the Hobbs Act”); one count of using a facility of interstate commerce to facilitate unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and two counts of receiving proceeds of extortion, in violation of 18 U.S.C. § 880. He also appeals his sentence. For the reasons set forth below, we AFFIRM. 1. Brank first argues that extortion as defined in the Hobbs Act does not include threats causing fear of injury to reputation. Brank takes the position that only threats causing fear of physical violence or economic harm are cognizable as extortion under the Hobbs Act. This argument is not well-taken. Extortion under the Hobbs Act is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). That is precisely what occurred here; Brank obtained Burns' property, inducing Burns to part with it through wrongful use of fear that Burns' private life would be exposed. In United *** (...continued) Eastern District of Michigan, sitting by designation. 2 States v. Nardello, 393 U.S. 286, 296 (1969), the Supreme Court held that “extortion,” when left undefined in a federal criminal anti-racketeering statute (in that case, the Travel Act, 18 U.S.C. § 1952), encompassed threats to injure a victim’s reputation. We cannot conclude that Congress adopted a narrower definition of “extortion” in the Hobbs Act. Brank’s contention that the evidence was insufficient to establish extortion under the Hobbs Act must therefore be rejected. 2. Brank argues that the district court erred in denying his motion to dismiss for vindictive prosecution. Brank has not proffered evidence that the government acted out of “hostility or a punitive animus” in the ...

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