United States v. Benjamin Koziol ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50018
Plaintiff-Appellee,
D.C. No.
v. 2:18-cr-00022-
CAS-1
BENJAMIN KOZIOL, AKA Benjamin
Joseph Donovan, AKA Benjamin
Joseph Koziol, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted April 22, 2020
Pasadena, California
Filed April 13, 2021
Before: Carlos T. Bea and Bridget S. Bade, Circuit Judges,
and Gershwin A. Drain, * District Judge.
Opinion by Judge Bade
*
The Honorable Gershwin A. Drain, United States District Judge
for the Eastern District of Michigan, sitting by designation.
2 UNITED STATES V. KOZIOL
SUMMARY **
Criminal Law
The panel affirmed a conviction for attempted extortion
under the Hobbs Act, 18 U.S.C. § 1951(a), for threatening to
file against a well-known entertainer a suit asserting
salacious and scandalous allegations if the entertainer didn’t
settle for $1,000,000; vacated the sentence; and remanded
for resentencing.
The defendant argued that his conviction must be
reversed because the threat of litigation, even when
“frivolous, meritless, or made in bad faith,” can never
constitute “wrongful” conduct under the Hobbs Act, which
imposes criminal liability for extortion on those who obtain
property from another by the “wrongful use of . . . fear.” The
panel concluded that there is no statutory, constitutional, or
policy basis to exclude categorically threats of sham
litigation from criminal liability under the Hobbs Act. The
panel therefore affirmed the denial of the defendant’s motion
for acquittal on this basis.
The panel wrote that the circumstances of the threats
must be considered to determine if the means used were
“wrongful” under the Act, of if the ends were “wrongful”
because the defendant sought property to which he knew he
had no lawful claims. Rejecting the defendant’s sufficiency-
of-the-evidence challenge, the panel held that when viewed
in the light most favorable to the government, the evidence
was more than sufficient for the jury to conclude beyond a
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KOZIOL 3
reasonable doubt that the defendant knew his claims against
the entertainer were baseless and that he had no right to
demand money from the entertainer.
The panel rejected the defendant’s arguments of
instructional and evidentiary error.
The panel held that the district court did not err by
applying a fourteen-level increase under U.S.S.G.
§ 2B3.3(b)(1) based on the amount ($1,000,000) that the
defendant demanded from the entertainer. The panel held
that the district court’s erroneous failure to apply U.S.S.G.
§ 2X1.1—which provides guidelines for attempt offenses
not otherwise covered by a specific offense guideline—was
plain, and remanded for resentencing.
COUNSEL
Carlton F. Gunn (argued), Pasadena, California, for
Defendant-Appellant.
Eddie A. Jaurequi (argued) Assistant United States
Attorney; L. Ashley Aull, Chief, Criminal Appeals Section;
Nicola T. Hanna, United States Attorney; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.
OPINION
BADE, Circuit Judge:
Defendant-Appellant Benjamin Koziol was convicted of
attempted extortion under the Hobbs Act, 18 U.S.C.
§ 1951(a), for threatening to file suit against a well-known
4 UNITED STATES V. KOZIOL
entertainer asserting salacious and scandalous allegations of
sexual harassment, sexual assault, and assault and battery if
the entertainer did not settle with Koziol for $1,000,000. 1
On appeal, Koziol argues that this court should vacate his
conviction and remand with instructions to enter a judgment
of acquittal because the threat of litigation, even a baseless
and bad faith threat, cannot constitute “wrongful” conduct
under the Hobbs Act. Koziol also challenges the sufficiency
of the evidence and asserts instructional, evidentiary, and
sentencing errors. We affirm his conviction, but remand for
resentencing.
I.
A.
On December 25, 2015, the manager for a well-known
and successful entertainer reviewed advertisements for
“erotic massages” on the website Backpage.com. He sent a
text message to a number listed in one of these
advertisements to set up an appointment. But the masseuse,
Jordan Sweet, was not immediately available and the
manager did not want to make a later appointment that day.
A few weeks later, on January 10, 2016, the manager
sent another text message to Sweet to schedule an
appointment. This time Sweet was available immediately,
1
This case arises from Koziol’s threats of litigation against a music
manager and one of his clients, a well-known singer-songwriter and
entertainer. The identities of the manager and the entertainer were
subject to a protective order in the district court. Although the parties do
not necessarily agree that the protective order remains in effect on
appeal, they refer to these individuals by the pseudonyms “Manager” and
“Entertainer” and, therefore, we similarly refer to these individuals as the
manager and the entertainer.
UNITED STATES V. KOZIOL 5
and she directed the manager to come to her apartment.
Once he arrived at Sweet’s apartment, the manager disrobed.
Sweet directed the manager to lie on a table, covered him
with a towel, and proceeded to engage in what the manager
described as “light petting.” The manager asked Sweet “if
there [would be] mutual touching,” but Sweet denied the
advance and shortly after demanded that the manager leave.
The two later exchanged a series of text messages, in which
the manager expressed his displeasure with the experience.
A few days later, the manager received a voicemail
message on his phone from an attorney, Bobby Saadian. The
call, however, was addressed to the entertainer. Saadian
alleged that the entertainer had engaged in inappropriate
behavior during a massage. When the manager called
Saadian in response to the voicemail message, the manager
realized that the call was about the manager’s encounter with
Sweet.
On January 14, 2016, Saadian sent the manager’s
attorney a letter alleging that the manager “physically and
verbally assaulted and battered” Sweet, demanding
$250,000 to settle Sweet’s claims against the manager,
offering the manager “an opportunity to extricate himself
from this matter without exposure,” and threatening to
“promptly file and serve a lawsuit and notify the media of
said incident” if the manager did not respond by the next day.
In this letter, Sweet’s attorney claimed that there was a video
that showed the manager at the apartment. On January 26,
2016, the manager entered into a confidential settlement
agreement with Sweet, denying the allegations and resolving
any potential lawsuit for $225,000. In the settlement
agreement, Sweet also released the entertainer from any
claims.
6 UNITED STATES V. KOZIOL
Approximately eight months later, in August 2016,
Koziol left a voicemail message on the manager’s phone and
identified himself as Sweet’s husband. The manager did not
return the call and instead forwarded the message to his
attorneys. Shortly after receiving the message, the
manager’s attorney, Kerry Garvis Wright, called Koziol.
Initially, Koziol spoke cryptically, stating that he wanted to
speak with the manager “about something that happened a
while ago.” But soon he spoke more candidly and
mentioned the January 10, 2016 massage. Wright suggested
that they speak in person; Koziol agreed and said he would
contact Wright to schedule a meeting.
But a meeting between Wright and Koziol did not occur.
Instead, shortly after the first call, Koziol called again and
told Wright he would not meet with her in person. In this
second phone conversation Koziol told Wright that he was
present the night of the massage, but in the bedroom of the
apartment. Koziol also stated that when he left the bedroom
and entered the living room, the manager verbally and
physically assaulted him. Wright told Koziol that she did
not believe him.
Neither the manager nor Wright heard from Koziol for
several months after the August 2016 calls. Then, on
December 28, 2016, Sherwin Arzani, an attorney
representing Koziol, delivered a letter to an attorney who
previously represented the entertainer. An identical letter
arrived two days later at Wright’s firm. In that letter,
Koziol’s attorney accused the entertainer—not the
manager—of physically assaulting and battering Koziol as
he protected Sweet from “unwanted physical advances”
during the January 2016 massage. He also warned of the
possibility of legal action if the entertainer failed to respond
to the letter.
UNITED STATES V. KOZIOL 7
In response, Wright sent a letter to Arzani, stating that
her firm represented the manager, not the entertainer, and
that it was the manager who had been at Sweet’s apartment
on the night in question. Wright denounced Koziol’s
allegations as “a complete and utter fabrication.” Wright
also threatened legal action against both Koziol and Sweet if
Koziol persisted in his attempts to extract a further
settlement from the manager. Arzani did not respond.
The entertainer and the manager did not hear from
Koziol again until October 2017—about ten months after the
last contact with Koziol’s then-attorney, Arzani, and about
twenty-one months after the massage incident. Koziol sent
the manager an email trying to contact the entertainer or the
entertainer’s attorney. The manager forwarded the email to
the entertainer’s attorney, Reid Hunter, who soon responded.
On October 17, 2017, Koziol replied to Hunter in a
lengthy email in which he accused the entertainer of
contacting Sweet for a massage in December 2015. The
email contained a bevy of additional allegations against the
entertainer, including that: (1) he attempted to touch Sweet
several times during the massage, (2) he cursed at Sweet and
called her “a f[---]ing tease” when she refused his advances,
(3) when Koziol attempted to intervene, the entertainer
punched him in the face, knocking him unconscious, and
(4) the entertainer continued to text Sweet following the
encounter, threatening to report Sweet to her apartment
management for her illicit business. Koziol further claimed
he had a video of the entertainer at the building on the night
of the incident, as well as a photograph of his injuries from
8 UNITED STATES V. KOZIOL
the entertainer punching him. 2 Koziol concluded with the
following demand:
I am seeking $1,000,000 in damages on or
before Nov 1st 2017. I am also open to a
structured settlement. If I don’t receive
payment by this date, I am prepared to
promptly file my complaint and supporting
documents with the court. THIS LETTER IS
FOR SETTLEMENT PURPOSES ONLY!
Hunter responded to Koziol’s email with a series of
questions to probe Koziol’s claims. The two continued to
exchange email messages, with Hunter ultimately requesting
an extension from Koziol’s original November 1, 2017
deadline. Koziol, however, denounced the request as a
“stahl [sic] tactic” and indicated that “TIME IS OF THE
ESSENCE!” Nevertheless, he offered the entertainer a
reprieve of one week to consider the offer. Koziol
threatened that he would file a complaint with his allegations
on November 8, 2017 if he did not receive a settlement.
After speaking to the entertainer, Hunter sent an email to
Koziol on November 3, 2017 and asked to speak to Koziol
by phone to discuss some additional questions. But Koziol
refused to speak with Hunter on the phone. Instead, he sent
another email and reiterated his demand to settle for
2
The district court admitted into evidence Koziol’s October 17,
2017 email to Hunter, in which he claimed that he had a video of the
entertainer at the apartment building on the night of the January 2016
massage. Koziol did not include the video in his email to Hunter. In
addition, the government presented testimony that, despite attempts to
obtain a copy of the alleged video, the FBI was unable to do so.
Moreover, Koziol did not present any video evidence at the trial and
later, at his sentencing hearing, admitted that he never had a video of the
entertainer and that he lied when he claimed that he did.
UNITED STATES V. KOZIOL 9
$1,000,000, which would “NOT BE RENEWED AFTER”
November 7, 2017.
When the deadline came, Hunter replied and rejected
Koziol’s offer to settle as “ridiculous.” Hunter further stated
that the entertainer would take legal action against Koziol
should he follow through on his threat to file a lawsuit. In
reply, Koziol stated that the entertainer’s threat of legal
action “d[id] not intimidate or deter [him] at all” because he
had “no money or assets to go after.” Because the entertainer
failed to respond, Koziol stated he had “no option other than
to move forward with a jury trial.” However, Koziol gave
the entertainer one last chance to reconsider or counter his
settlement offer “ASAP.”
On November 10, 2017, Lynn Neils, another of the
entertainer’s attorneys—and a former federal prosecutor—
contacted Koziol on the entertainer’s behalf in a letter
delivered to Koziol’s email account. In that letter, Neils
asserted that Koziol’s conduct violated a litany of federal
and state criminal statutes, including the Hobbs Act. She
also advised Koziol that metadata of the photograph
purportedly showing Koziol’s injuries from the assault
“reveals that this photograph was taken nearly a year later—
proving that you are utterly lying about the facts.” 3
Undeterred, Koziol stated that he would “be moving
immediately forward to file [his] lawsuit within the next few
days.” But, once more, he offered the entertainer the chance
3
The government introduced evidence at trial establishing that the
photograph was taken in December 2016, nearly a year after the alleged
assault. Koziol does not dispute this evidence on appeal and
acknowledges that metadata established that the photograph was taken
in December 2016.
10 UNITED STATES V. KOZIOL
to settle if he had “a change of heart.” The entertainer did
not settle, and Koziol never filed his lawsuit.
B.
Nonetheless, legal action soon commenced. On January
19, 2018, a federal grand jury in the Central District of
California indicted Koziol for attempted extortion under the
Hobbs Act, 18 U.S.C. § 1951(a). The indictment alleged
that Koziol “knowingly attempted to obtain property
consisting of approximately $1,000,000 from victim
Entertainer, with the victim Entertainer’s consent, induced
by the wrongful use of fear, by threatening to publish false
criminal allegations against victim Entertainer by filing a
public lawsuit, if the victim Entertainer refused to transfer
$1,000,000 to defendant Koziol.”
At trial, the prosecution called several witnesses,
including the manager, the entertainer, and attorneys Wright
and Hunter. On June 1, 2018, the jury found Koziol guilty
of attempted extortion. At the close of the government’s
case, and again after the verdict, Koziol moved for a
judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29(c); the court reserved ruling on the trial motion
and denied the post-trial motion.
The district court sentenced Koziol to seventy months’
imprisonment to run consecutively to his California state
conviction in an unrelated matter. Koziol filed a timely
notice of appeal, see Fed. R. App. P. 4(b)(1), and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Koziol first argues that his conviction must be reversed
because the threat of litigation, even when “frivolous,
UNITED STATES V. KOZIOL 11
meritless, or made in bad faith,” can never constitute
“wrongful” conduct under the Hobbs Act, 18 U.S.C. § 1951.
Koziol made the same argument in his post-trial motion for
acquittal, which the district court denied, concluding that
Koziol’s “threatened litigation was entirely sham in nature
and made for an improper purpose,” and thus “wrongful”
under the Hobbs Act.
When the denial of a motion for acquittal turns on the
district court’s interpretation of a statute, we review the
decision de novo. See United States v. Lo, 839 F.3d 777, 783
(9th Cir. 2016). We conclude that there is no statutory,
constitutional, or policy basis to support Koziol’s argument
that threats of sham litigation are categorically excluded
from criminal liability under the Hobbs Act. 4 Therefore, we
reject Koziol’s argument and affirm the denial of his motion
for acquittal.
A.
The Hobbs Act imposes criminal liability on those who
“obstruct[], delay[], or affect[] commerce . . . by robbery or
extortion.” 18 U.S.C. § 1951(a). Under the statute,
“extortion” 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.” Id. § 1951(b)(2). Although Koziol correctly
observes that the statute does not define “wrongful,” he fails
to acknowledge that the term has been defined by the
4
We have previously held that the Hobbs Act does not impose
liability for threats of litigation that do not rise to the level of a sham.
See Sosa v. DIRECTV, Inc., 437 F.3d 923, 939–40 (9th Cir. 2006). But
we have not previously addressed whether the Hobbs Act applies to
threats of sham litigation. In Section II.B, we address the definition of
sham litigation and whether Koziol’s threats rise to that level.
12 UNITED STATES V. KOZIOL
Supreme Court and this court. We conclude that the
statutory interpretation of the term “wrongful,” as applied in
our case law, extends to Koziol’s threat of sham litigation.
1.
We have stated that United States v. Enmons, 410 U.S.
396 (1973), “is the starting point for the interpretation of
‘wrongful’ in the extortion statute.” Levitt v. Yelp! Inc.,
765 F.3d 1123, 1130 (9th Cir. 2014). In Enmons, the
Supreme Court explained that obtaining property is
“wrongful” under the Hobbs Act if “the alleged extortionist
has no lawful claim to that property.” 410 U.S. at 400.
There, the Court concluded that the use of threats of physical
force or violence was not “wrongful” under the Hobbs Act
because the defendants—officials and members in a labor
union—sought “legitimate labor ends,” and thus, had a
lawful claim to the things of value they demanded, including
higher wages and benefits in return for genuine services. 5 Id.at 397–401.
In United States v. Dischner, we applied this definition
of “wrongful” to threats of economic loss and reiterated that
“[o]btaining property is generally ‘wrongful’ if the alleged
extortionist has no lawful claim to that property.” 6 974 F.2d
5In Enmons, the Court relied, in part, on the legislative framework
of the Hobbs Act to conclude that it did not apply to the use of force to
obtain “legitimate labor ends.” 410 U.S. at 401.
6
Conversely, we have explained that threats of economic harm to
obtain property are generally not considered “wrongful” when “the
alleged extortioner has a legitimate claim to the property obtained
through such threats.” Levitt, 765 F.3d at 1130–31 (emphasis added)
(citation omitted); see id. at 1131–32 (“[W]here the defendant has a
claim of right to property and exerts economic pressure to obtain that
UNITED STATES V. KOZIOL 13
1502, 1516 (9th Cir. 1992) (citing Enmons, 410 U.S. at 400),
overruled on other grounds by United States v. Morales,
108 F.3d 1031 (9th Cir. 1997) (en banc). We determined
that the defendants’ conduct was wrongful because the
defendants had no lawful right to demand payments in the
form of kickbacks and extortionate contracts. Id. at 1507–
08, 1515–18. Other circuits too have concluded that
economic threats are “wrongful” under the Hobbs Act if the
alleged extortionist does not have a lawful claim to the
property demanded. See, e.g., United States v. Sturm, 870
F.2d 769, 773 (1st Cir. 1989) (“We therefore hold that for
purposes of the Hobbs Act, the use of legitimate economic
threats to obtain property is wrongful only if the defendant
has no claim of right to that property.” (footnotes omitted));
see also United States v. Tobin, 155 F.3d 636, 640–41 (3d
Cir. 1998) (concluding that economic threats and other
harassment were “within the purview of the Hobbs Act”
because the victims “had a preexisting right to be free” from
such threats).
We have also addressed whether the means the defendant
employed to demand the property may be the basis for
wrongfulness under the Hobbs Act. In United States v.
Daane, we concluded that use of inherently wrongful means
(e.g., physical violence outside the labor context) could
support a Hobbs Act extortion charge regardless of whether
the defendant had a claim to the property demanded.
475 F.3d 1114, 1119–20 (9th Cir. 2007). And in United
States v. Villalobos, we held that even nonviolent means that
are not inherently wrongful could support an extortion
charge if they were wrongful under the circumstances.
property, that conduct is not extortion and no violation of the Hobbs Act
has occurred.” (quoting Rennell v. Rowe, 635 F.3d 1008, 1011, 1012 (7th
Cir. 2011); other citation omitted)).
14 UNITED STATES V. KOZIOL
748 F.3d 953, 957–58 (9th Cir. 2014) (concluding that a
lawyer’s threats that his client would “cooperate with, or
alternatively impede,” an ongoing investigation depending
upon whether the extortion victim paid him were unlawful
(i.e., endeavoring to obstruct justice), and therefore wrongful
under the circumstances).
We have described this as a “means-ends framework,”
which recognizes “that certain ‘means’ to obtain property are
‘wrongful’ under the Hobbs Act without regard to the ‘ends’
sought by the defendant.” Id. at 957 (citing Daane, 475 F.3d
at 1119–20). We noted that the First Circuit adopted a
similar approach in Sturm, where it reasoned “that extortion
cases based on force or violence generally involve wrongful
‘means,’ while extortion cases based on economic fear
typically involve only allegations of wrongful ‘ends’ (i.e. the
defendant does not have a lawful claim to the property
demanded).” Id. at 957 n.3 (quoting Sturm, 870 F.2d at 773).
Therefore, we must consider whether the means Koziol used
in his attempt to obtain the property (threats of sham
litigation) were wrongful under the circumstances, 7 or
whether the ends were wrongful because he had no lawful
claim to the property he demanded.
7
Because Villalobos requires that we examine the circumstances to
determine whether the means used to obtain property are wrongful, even
when nonviolent means that are not inherently wrongful are employed,
748 F.3d at 956–57, we necessarily reject Koziol’s argument that threats
of sham litigation are categorically excluded from the term “wrongful”
under the Hobbs Act.
UNITED STATES V. KOZIOL 15
2.
The government alleged that, after initially asserting the
same claims against the manager, 8 Koziol threatened to file
a lawsuit publicizing baseless allegations that could damage
the entertainer’s reputation and livelihood in an attempt to
extort $1,000,000 from the entertainer. The government
asserted that Koziol used falsified evidence to show his
alleged injuries and that he lied about the existence of other
evidence to support his claims. The government also alleged
that Koziol knew that his allegations against the entertainer
were false and that he did not have a lawful claim to the
property he demanded. The government’s allegations, if
supported by sufficient evidence, 9 establish that Koziol
knew he had no lawful claim to the property he demanded.
See Tobin, 155 F.3d at 640–41 (concluding that defendant
“did not have the right to seek to enforce her alleged oral
contract through a campaign of telephone terrorism,” that
included—among other things—threats of litigation alleging
sexual harassment against the extortion victim and that her
actions were “within the purview of the Hobbs Act”).
We conclude that the circumstances alleged in this case
establish that Koziol’s conduct went far beyond threatening
to file a lawsuit based on weak claims and that it fell well
outside the bounds of legitimate pre-litigation settlement
8
After the manager negotiated a settlement with Sweet, Koziol
accused the manager of physically and verbally assaulting him on the
night of the massage. Koziol did not mention the entertainer in these
allegations. The manager’s attorney refused any attempts to extract
additional money from her client, and Koziol later changed his story to
accuse the entertainer.
9
We address Koziol’s challenge to the sufficiency of the evidence
to support his conviction in Section III.
16 UNITED STATES V. KOZIOL
demands. Following Enmons and Dischner, we hold that
threats of sham litigation, which are made to obtain property
to which the defendant knows he has no lawful claim, are
“wrongful” under the Hobbs Act. 10 Applying the “means-
ends framework” of Villalobos, we need not decide whether
the means that Koziol employed in his threats (baseless
threats of sham litigation using falsified evidence and deceit)
were “wrongful” under the Hobbs Act because he sought to
obtain money to which he knew he had no lawful claim and,
thus, the ends were “wrongful.” See Villalobos, 748 F.3d
at 956–57 & n.3. We therefore conclude that Koziol’s
threats of sham litigation were “wrongful” under the Hobbs
Act.
B.
Koziol also argues that, even if we do not accept his
argument that threats of sham litigation can never establish
liability under the Hobbs Act, we should nonetheless vacate
his conviction because his threatened litigation did not rise
10
In Sturm, the First Circuit held that the term “wrongful” in the
Hobbs Act “requires the government to prove, in cases involving
extortion based on economic fear, that the defendant knew that he was
not legally entitled to the property that he received.” 870 F.2d at 774.
But we have not yet imposed this requirement. See United States v.
Greer, 640 F.3d 1011, 1019 n.4 (9th Cir. 2011) (“Because the district
court’s instructions satisfied the First Circuit’s requirement in Sturm, we
need not decide whether to adopt Sturm as the law of this circuit.”
(citation omitted)); Dischner, 974 F.2d at 1515 (“[W]e need not decide
whether the government must prove that the defendant knew he had no
entitlement.”). In this case, the district court instructed the jury that a
threat is “wrongful” under the Hobbs Act “if the defendant knew he was
not entitled to obtain the property,” and the parties do not dispute this
knowledge requirement. Therefore, we do not decide whether the Hobbs
Act imposes liability absent proof that the defendant knew he was not
entitled to the property.
UNITED STATES V. KOZIOL 17
to the level of a sham and should thus be immune from
liability. Koziol bases this argument on the Noerr-
Pennington doctrine, which is a rule of statutory
construction that requires courts to construe statutes to avoid
burdening conduct that implicates the protections of the
Petition Clause of the First Amendment. 11 See Sosa v.
DIRECTV, Inc., 437 F.3d 923, 931–32 (9th Cir. 2006). The
Petition Clause protects “the right of the people . . . to
petition the government for a redress of grievances,” id.
at 929 (quoting U.S. Const. amend. I), and “[u]nder the
Noerr-Pennington doctrine, those who petition any
department of the government for redress are generally
immune from statutory liability for their petitioning
conduct,” id. (citation omitted).
The constitutional right to petition includes the right of
access to the courts and therefore most litigation activities
(including pre-suit demands) are immunized from statutory
liability. Id. at 929, 933–36. However, “neither the Petition
Clause nor the Noerr-Pennington doctrine protects sham
petitions, and statutes need not be construed to permit them.”
Id. at 932. Indeed, the “established sham exception . . .
provides . . . protection against baseless claims asserted in
prelitigation settlement letters.” Id. at 936 (citing Pro. Real
Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S.
49, 60–61 (1993); other citation omitted).
11
“The Noerr-Pennington doctrine arose in the antitrust context and
initially reflected the Supreme Court’s effort to reconcile the Sherman
Act with the First Amendment Petition Clause.” Sosa, 437 F.3d at 929(discussing E. R.R. Presidents Conf. v. Noerr Motor Freight, Inc.,
365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657(1965)). The Court has since applied this doctrine “outside the antitrust
field.” Id. at 930.
18 UNITED STATES V. KOZIOL
Litigation is a sham “where the lawsuit is objectively
baseless and the defendant’s motive in bringing it was
unlawful.” Id. at 938 (citing Kottle v. Nw. Kidney Ctrs.,
146 F.3d 1056, 1060 (9th Cir. 1998)). A lawsuit is
objectively baseless where “no reasonable litigant could
realistically expect success on the merits.” Pro. Real Est.
Invs., 508 U.S. at 60. If this first prong of the sham exception
(objective baselessness) is satisfied, then the court must
determine whether the defendant had an improper motive.
See Rock River Commc’ns, Inc. v. Universal Music Grp.,
Inc., 745 F.3d 343, 352–53 (9th Cir. 2014). “[R]equiring
both objective baselessness and an improper motive . . .
overprotects baseless petitions so as to ensure citizens may
enjoy the right of access to the courts without fear of
prosecution.” Sosa, 437 F.3d at 934 (citation omitted).
Koziol acknowledges that the Noerr-Pennington
doctrine does not protect sham litigation activities, including
threats of sham litigation. However, he argues that the sham
exception does not apply to his litigation threats because he
was not acting with an improper motive; instead, he sought
“the outcome of a successful lawsuit []—a cash settlement.”
But as the government notes, despite several threats to file a
lawsuit against the entertainer, Koziol never filed his suit.
Koziol’s failure to file the threatened lawsuit supports the
second prong of the sham exception (improper motive)
because it provides evidence from which a reasonable jury
could conclude that Koziol hoped to enforce his claim
“through the threat of litigation rather than through actual
litigation,” and therefore sought to achieve his “aim[s]
through the litigation process rather than through the result
of that process.” 12 See Rock River Commc’ns, 745 F.3d
We are not suggesting that by filing his threatened sham
12
complaint, Koziol could have automatically prevented the government
UNITED STATES V. KOZIOL 19
at 353 (citation omitted) (concluding that a reasonable jury
could find that the second prong of sham exception was met
where defendant sent cease-and-desist letters but failed to
initiate litigation, which suggested defendant hoped to
enforce its claim through the threat of litigation rather than
actual litigation).
Koziol attempts to distinguish Rock River
Communications by arguing that he did not file a lawsuit
because the entertainer’s attorneys threatened him with
criminal and civil liability. Koziol points to a November 10,
2017 letter from Neils, but on November 27, 2017, Koziol
responded to that letter and, apparently undeterred, repeated
his threats to file suit “within the next few days” unless the
entertainer agreed to settle. And Koziol responded to earlier
threats of legal action from another of the entertainer’s
attorneys (Hunter) by stating that such threats “d[id] not
intimidate or deter [him] at all” because he had “no money
or assets to go after.” Thus, the jury could reasonably
conclude that Koziol was not intimidated by the attorneys’
threats of liability and that those threats do not explain his
failure to file his lawsuit. See Rock River Commc’ns,
from proving improper motive. Indeed, extortionists are not free simply
to file a complaint and thus don the protective mantle of Noerr-
Pennington immunity. See Kottle, 146 F.3d at 1060 (holding that
“litigation can be deemed a sham if ‘a party’s knowing fraud upon, or its
intentional misrepresentations to, the court deprive the litigation of its
legitimacy’” (quoting Liberty Lake Invs., Inc. v. Magnuson, 12 F.3d 155,
158 (9th Cir. 1993); other citation omitted)). Koziol’s falsified evidence,
if included in a filed complaint or otherwise submitted to the court,
would certainly qualify as intentional misrepresentations to the court.
And even if Koziol had filed a complaint omitting the falsified evidence,
the incongruity between his settlement demands and the complaint
would be probative evidence of sham litigation as well, especially when
considered with the evidence that Koziol knew he had no lawful claim
to the settlement he demanded, as discussed below.
20 UNITED STATES V. KOZIOL
745 F.3d at 352–53 (explaining that whether the sham
exception to the Noerr-Pennington doctrine applies is a
question of fact).
Indeed, as discussed more fully below, Koziol fabricated
evidence, lied about the existence of evidence, and knew that
his claims were baseless, all of which further demonstrates
that his threats to file a lawsuit were made with an improper
motive. From this evidence, we conclude that Koziol knew
that his threatened lawsuit could never prove fruitful if
brought before a jury, which is why he attempted to
intimidate the entertainer into a settlement based on
admittedly falsified evidence and an implied threat that
scandalous allegations in a publicly filed lawsuit would
irrevocably damage the entertainer’s reputation and
livelihood.
Therefore, we reject Koziol’s argument that his litigation
threats did not rise to the level of a sham as a matter of law
and conclude that the Noerr-Pennington doctrine did not
immunize Koziol’s threats of sham litigation.
C.
Finally, Koziol argues that “a passing comment,” in one
of our cases, First Pacific Bancorp, Inc. v. Bro, 847 F.2d
542, 547 (9th Cir. 1988), which he characterizes as
“dictum,” and statements in cases from other circuits
establish that threats of sham litigation can never constitute
“wrongful” conduct under the Hobbs Act. However, our
review of these cases establishes that they do not support the
broad proposition that threats of sham litigation should be
categorically excluded from criminal liability under the
Hobbs Act, and that they are distinguishable and therefore
not persuasive in this case. We first address Koziol’s
characterization of our decision in First Pacific Bancorp,
UNITED STATES V. KOZIOL 21
which is binding precedent in this court, and then we
consider his reliance on non-binding decisions from other
circuits.
1.
In First Pacific Bancorp, a bank brought a claim under
§ 1964 of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961–1968, 13
against its shareholders who had solicited proxies in favor of
an alternative slate of candidates for the board of directors
and had taken steps to initiate a shareholders’ derivative suit.
847 F.2d at 543–44. The shareholders delivered a draft
complaint to the bank’s board of directors, but they did not
file or serve the complaint and they did not make any
statements to obtain money or property from the bank during
the proxy solicitation. Id. at 544. On appeal, we affirmed
the district court’s entry of summary judgment in favor of
the shareholders and rejected the bank’s claims that the
proposed shareholder derivative suit and alleged threats to a
bank director were acts of extortion under RICO. Id. at 547.
We concluded that because the proposed suit was “not a
catalyst for any corporate action,” it therefore was not an
13
RICO addresses “racketeering activity,” which it defines to
“encompass dozens of state and federal offenses, known in RICO
parlance as predicates.” RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct.
2090, 2096 (2016). “A predicate offense implicates RICO when it is part
of a ‘pattern of racketeering activity’—a series of related predicates that
together demonstrate the existence or threat of continued criminal
activity.” Id. at 2096–97. In § 1962, RICO prohibits certain activities in
relation to an enterprise. Id. at 2096. Section 1964(c) “create[d] a private
civil cause of action that allows ‘[a]ny person injured in his business or
property by reason of a violation of section 1962’ to sue in federal district
court and recover treble damages, costs, and attorney’s fees.” Id. at 2097
(second alteration in original) (quoting § 1964(c)).
22 UNITED STATES V. KOZIOL
extortionate act and did not otherwise qualify as a predicate
offense under RICO. Id. We also determined that the
alleged threats were insufficient because “[e]xtortion by
threat requires ‘fear,’” but the bank did not claim that the
alleged threats caused fear and did not identify any corporate
action that the imposition of fear might have been intended
to compel. Id. (citing I.S. Joseph Co. v. J. Lauritzen A/S,
751 F.2d 265, 267 (8th Cir. 1984)). “Absent such support,
the allegation of extortion collapses.” Id. Thus, we rejected
the bank’s civil RICO claims because the bank’s allegations
of extortion were insufficient. We did not make any broad
or general statements that threats of litigation, even threats
of sham litigation, can never establish criminal liability
under the Hobbs Act.
Koziol asserts that other circuits have read First Pacific
Bancorp “as adopting the more general proposition that no
threat of litigation, regardless of merit or bad faith, is
extortion.” But even if we accept Koziol’s characterization
of these cases, the conclusion that threats of sham litigation
can never amount to extortion is simply not supported by our
decision in First Pacific Bancorp.
2.
Perhaps recognizing that our decision in First Pacific
Bancorp does not support his argument, Koziol relies
primarily on cases from other circuits to argue that threats of
sham litigation can never constitute “wrongful” conduct
under the Hobbs Act. Koziol cites Kim v. Kimm, 884 F.3d
98, 104–05 (2d Cir. 2018); Snow Ingredients, Inc. v.
SnoWizard, Inc., 833 F.3d 512, 525 (5th Cir. 2016); Deck v.
Engineered Laminates, 349 F.3d 1253, 1258 (10th Cir.
2003); United States v. Pendergraft, 297 F.3d 1198, 1205–
08 (11th Cir. 2002); Vemco, Inc. v. Camardella, 23 F.3d 129,
UNITED STATES V. KOZIOL 23
134 (6th Cir. 1994); and I.S. Joseph Co., 751 F.2d at 267–
68.
Setting aside Pendergraft momentarily, all these cases
involve civil RICO claims and parties involved in business
disputes who had been or were at that time involved in
litigation apart from the civil RICO suit. See Kim, 884 F.3d
at 100–01; Snow, 833 F.3d at 518–20; Deck, 349 F.3d
at 1256, 1258; Vemco, 23 F.3d at 132–33; I.S. Joseph Co.,
751 F.2d at 266–67. There are significant differences
between these cases, dealing with civil RICO claims, and the
criminal charges at issue in this case. As the Supreme Court
has explained: “The creation of a private right of action
raises issues beyond the mere consideration whether
underlying primary conduct should be allowed or not,
entailing, for example, a decision to permit enforcement
without the check imposed by prosecutorial discretion.”
RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090, 2106
(2016) (citation omitted).
Indeed, in these cases the courts concluded that RICO
does not authorize suits by private parties asserting claims
against business or litigation adversaries, based on litigation
activities, and seeking treble damages, costs, and attorneys’
fees. See Kim, 884 F.3d at 104 (“‘[I]f litigation activity were
adequate to state a claim under RICO, every unsuccessful
lawsuit could spawn a retaliatory action,’ which ‘would
inundate the federal courts with procedurally complex RICO
pleadings.’” (citations omitted)); Snow, 833 F.3d at 525
(explaining that litigation tactics cannot be a predicate for a
civil RICO claim); Deck, 349 F.3d at 1258 (“[R]ecognizing
abusive litigation as a form of extortion would subject
almost any unsuccessful lawsuit to a colorable extortion (and
often a RICO) claim.”); see also Vemco, Inc., 23 F.3d at 134;
I.S. Joseph Co., 751 F.2d at 267.
24 UNITED STATES V. KOZIOL
In rejecting RICO liability based on litigation activities,
these courts expressed policy concerns relating to ensuring
access to the courts, promoting finality, and avoiding
collateral litigation. See Kim, 884 F.3d at 104 (explaining
that permitting RICO suits based on prior litigation activities
would “engender wasteful satellite litigation,” “erode the
principles undergirding the doctrines of res judicata and
collateral estoppel,” and “chill litigants and lawyers and
frustrate the well-established public policy goal of
maintaining open access to the courts” because “pleading[s]
and correspondence in an unsuccessful lawsuit could lead to
drastic RICO liability” (citations omitted)); see also Snow,
833 F.3d at 525; Deck, 349 F.3d at 1258; I.S. Joseph Co.,
751 F.2d at 267.
These cases turn on the scope of civil liability under
RICO and related policy concerns, but they do not address
the issue presented in this case: whether threats of sham
litigation can establish criminal liability under the Hobbs
Act. Furthermore, the policy concerns asserted in these
cases are not implicated when a defendant, who has no
relationship with his alleged extortion victim, including any
prior or pending litigation, threatens sham litigation to obtain
property to which he knows he has no lawful claim. See
Rickards v. Canine Eye Registration Found., 783 F.2d 1329,
1334 (9th Cir. 1986) (“This kind of litigation deserves all the
chilling effect the law allows.”). Therefore, we reject
Koziol’s argument that these civil RICO cases from other
circuits establish that threats of sham litigation can never
constitute extortion under the Hobbs Act.
Similarly, Pendergraft turned on policy considerations
that do not apply in this case. In Pendergraft, the defendants
were convicted of attempted extortion in violation of the
Hobbs Act (as well as several other offenses) based on
UNITED STATES V. KOZIOL 25
threats to amend their complaint in a pending civil suit to add
a claim for damages against a county government, and based
on their filing of sworn declarations with false statements.
297 F.3d at 1200–02. The defendants argued to the Eleventh
Circuit, in part, that a threat to file a lawsuit could never
amount to extortion. Id. at 1204. The court vacated the
conviction after reaching a “narrow” holding that this threat
of suit against a county government was not wrongful, even
if made in bad faith and supported by false affidavits. Id.
at 1208.
Like the courts addressing the civil RICO claims, the
Eleventh Circuit’s reasoning in Pendergraft was based on
policy concerns related to access to the courts. Id. at 1206.
The court stated that “[a] threat to litigate, by itself, is not
necessarily ‘wrongful’ within the meaning of the Hobbs
Act.” Id. And it noted that our legal system encourages
parties “to resort to courts for the redress of wrongs and the
enforcement of rights.” Id. (citations omitted). The court
then addressed the fabrication of evidence (filing sworn
affidavits with false information in the underlying civil case)
and stated that “the rigors of cross-examination and the
penalty of perjury sufficiently protect the reliability of
witnesses.” Id. at 1207 (citations omitted).
Therefore, the court concluded that “[c]riminalizing
false testimony via the Hobbs Act would expand the scope
of witness liability,” which the court described as
“unsettling” because it did “not believe that Congress
intended to expand the scope of witness liability in this
way.” 14 Id. Thus, like the civil RICO cases, the court in
14
One of the defendants was convicted of perjury and making false
statements to the FBI and on appeal those convictions were affirmed.
Pendergraft, 297 F.3d at 1200.
26 UNITED STATES V. KOZIOL
Pendergraft noted its concern that “[a]llowing litigants to be
charged with extortion would open yet another collateral
way for litigants to attack one another. The reality is that
litigating parties often accuse each other of bad faith. The
prospect of such civil cases ending as criminal prosecutions
gives us pause.” Id.But as we previously explained, these policy concerns—
promoting access to the courts and avoiding collateral
litigation—are not implicated by threats of sham litigation. 15
Therefore, we conclude that neither the narrow holding of
Pendergraft nor its reasoning apply to the situation presented
here—liability for extortion under the Hobbs Act that is not
based on litigation tactics or activities in prior or continuing
civil litigation, but instead is based on a threat of sham
litigation to obtain property to which the defendant knows
he has no lawful claim.
Even if we were to read Pendergraft as Koziol urges, we
would conclude that the decision in that case must be viewed
as an outlier and not in accord with other criminal cases
under the Hobbs Act. See United States v. Cuya, 724 F.
App’x 720, 724 (11th Cir. 2018) (per curiam) (distinguishing
Pendergraft and concluding that “threats of bogus lawsuits”
and “settlement” demands—predicated on a demand for
15
These cases also suggest that the victim of bad faith litigation
tactics may have remedies and protections in state tort law through
claims of malicious prosecution, wrongful use of civil proceedings, and
abuse of process, and that wrongful litigation conduct will be deterred
by the penalties for perjury, obstruction of justice, and witness
tampering. See Snow, 833 F.3d at 525; Pendergraft, 297 F.3d at 1207–
08; I.S. Joseph Co., 751 F.2d at 267. But these remedies and penalties
will rarely, if ever, protect the victim of extortionate threats of sham
litigation when, as in this case, the sham lawsuit is threatened but not
filed.
UNITED STATES V. KOZIOL 27
payment of late fees for purchase orders the defendant
fabricated—were “wrongful” under the Hobbs Act); 16
Tobin, 155 F.3d at 640–41 (affirming conviction for
extortion under the Hobbs Act based, in part, on threats to
file an unrelated and false lawsuit alleging sexual harassment
in an attempt to enforce an alleged oral contract); Sturm,
870 F.2d at 774 (concluding that extortion under the Hobbs
Act requires the government to prove the defendant knew he
was not legally entitled to the demanded property and using
the example of a good faith threat of litigation to explain that,
in the absence of such knowledge, it would be unjust to
convict a defendant of extortion). Therefore, we reject
Koziol’s argument that these cases from other circuits
establish that threats of sham litigation cannot constitute
extortion under the Hobbs Act.
D.
After reviewing the plain language of the statute, the case
law interpreting the term “wrongful,” and the reasoning of
other courts, we hold that threats of sham litigation are not
categorically excluded from criminal liability for extortion
under the Hobbs Act. Nor are such threats immunized by
the Noerr-Pennington doctrine. See Sosa, 437 F.3d at 932.
Instead, we must consider the circumstances of such threats
to determine whether the defendant used wrongful means or
16
Although Cuya is an unpublished decision, it is notable because
the Eleventh Circuit concluded that threats of sham litigation, which
were very similar to the threats in this case, were “wrongful” and
extortionate under the Hobbs Act. 724 F. App’x at 724. The court
rejected the defendant’s argument, based on Pendergraft, that threats of
litigation are legally insufficient to support his conviction and concluded
that its earlier decision in Pendergraft “[did] not apply.” Id.28 UNITED STATES V. KOZIOL
whether he sought to obtain property to which he knew he
had no lawful claim and, thus, the ends were wrongful.
In this case, Koziol’s threats of sham litigation—in
which he produced falsified evidence and lied about the
existence of evidence, initially targeted another victim with
the same threats, and knew he had no lawful claim against
his victim—sought “wrongful” ends and thus were within
the scope of Hobbs Act. Therefore, we conclude that the
district court correctly denied Koziol’s motion for acquittal.
III.
Koziol also argues that, even if the threat of sham
litigation can constitute “wrongful” conduct under the
Hobbs Act, the evidence was insufficient to support his
conviction for extortion under § 1951(a). Although Koziol
conceded at trial that the entertainer was not the massage
customer and was not present during the incident at issue, he
argues that no rational jury could have found that he knew
that the entertainer was not the massage customer and, thus,
that he knew he had no lawful claim to the money he
demanded from the entertainer.
When reviewing the sufficiency of the evidence, we ask
whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Nevils, 598 F.3d 1158,
1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979); other citation omitted).
When the evidence presents “conflicting inferences,” we
“must presume . . . that the trier of fact resolved any such
conflicts in favor of the prosecution, and [we] must defer to
that resolution.” Id. at 1164 (quoting Jackson, 443 U.S.
at 326; other citation omitted).
UNITED STATES V. KOZIOL 29
Here, there was ample evidence at trial from which a
rational jury could conclude that Koziol knew his allegations
were baseless and that he had no right to obtain any money
from the entertainer. As an initial matter, the uncontested
evidence at trial established that it was the manager, not the
entertainer, who was present at Sweet’s apartment on the
night of the massage. Several months after the manager
negotiated a settlement with Koziol’s wife, Sweet, Koziol
accused the manager of “verbally and physically” assaulting
him, even though Koziol was not mentioned in the detailed
demand letter that Saadian, Sweet’s attorney, previously sent
to Wright, the manager’s attorney. When Koziol made these
allegations against the manager, Koziol was aware that the
manager had settled with Sweet and he claimed that Saadian
had also represented him. After Wright refused any attempts
to extract additional money from her client, Koziol changed
his story to accuse the entertainer. He later falsely claimed
that he had “never accused [the manager] of anything!” And
in his threats to sue the entertainer, Koziol contradicted his
earlier allegations and stated that the manager “was never at
my apartment and has nothing to do with this case.”
Moreover, the uncontested evidence also established the
entertainer had never even met Koziol or Sweet.
Nonetheless, despite his earlier claims that the manager was
the massage customer who assaulted him, Koziol changed
his story and claimed that he confronted the entertainer at the
apartment on the night of the massage and spoke to him,
asserted that “by the look on [the entertainer’s] face” he was
“obviously surprised to see” Koziol, and accused the
entertainer of punching him in the face and knocking him
unconscious. Koziol also claimed that he “immediately
recognized” the entertainer when he searched for him on the
internet. From this evidence, a rational jury could find that
Koziol knew that the manager, not the entertainer, was the
30 UNITED STATES V. KOZIOL
massage customer and that Koziol knew he did not have a
claim against the entertainer.
Koziol also used falsified evidence (the photograph of
his purported injuries) to bolster his threats against the
entertainer, he lied about the existence of evidence that
supported his claims (the video that purportedly showed the
entertainer at Sweet’s apartment the night of the massage).
And in the demand letter that Koziol’s wife sent to the
manager through her attorney, she also claimed that she had
a video showing the massage customer at the apartment—
but stated that the video showed the manager at the
apartment. Again, from this evidence, a rational jury could
conclude that Koziol knew he had no lawful claim against
the entertainer.
In addition, Koziol asserted to the entertainer’s attorney
that he had “plenty of evidence and a witness to prove [his]
allegations” and that he would “be calling [his] wife to
testify.” Yet Koziol sought to keep Sweet from talking about
the incident, even though she was one of the entertainer’s
alleged victims and Koziol’s only witness. The jury heard a
post-arrest recording in which Koziol asked someone to tell
Sweet “not to talk to anybody, and make sure she’s not
talking over the phone” as she “can really f[---] me in
anything she says, I don’t think she realizes anything she
says can.” A rational jury could conclude that this evidence
established that Koziol believed Sweet’s statements would
contradict his claims and reveal that he knew he had no
lawful claim against the entertainer. The jury could have
also inferred that Koziol’s failure to file suit despite his
assertion that he had “plenty of evidence” indicated that he
knew he had no legitimate claim against the entertainer.
Finally, Koziol refused to meet with the manager’s
attorney in person, and he refused to speak with the
UNITED STATES V. KOZIOL 31
entertainer’s attorneys on the telephone. He communicated
with the entertainer’s attorneys through an email address and
phone that he had obtained four days before he first
threatened to sue the entertainer. The phone number that
Koziol provided to the entertainer’s attorneys was registered
to “John Doe” and was associated with a non-existent
address. From this evidence, a rational jury could conclude
that Koziol was trying to make it difficult to locate him
because he knew his allegations against entertainer were
baseless and he was acting in bad faith.
Koziol, in contrast, contends that the evidence at trial,
even in the light most favorable to the government,
precluded the jury from finding that he did not honestly
believe that the entertainer attacked him. He argues that:
(1) the initial voicemail from Sweet’s attorney to the
manager, left four days after the January 2016 massage,
referenced the entertainer, rather than the manager, and
Sweet’s attorney sent a subsequent email addressed to the
entertainer, thus establishing that Koziol and Sweet believed
the entertainer to be the perpetrator from the start; (2) the
settlement with the manager was negotiated quickly with
minimal resistance, and it included the entertainer in the list
of released individuals, suggesting a cover-up; (3) Koziol’s
later demands through his attorney referenced the
entertainer, rather than the manager; and (4) Koziol’s claim
that he had a video showing the entertainer at the apartment
made sense only if he truly believed that the entertainer was
the individual at the apartment.
But Koziol’s arguments ignore the requirement that this
court construe the evidence in the light most favorable to the
government. First, even if the evidence would support the
conclusion that Koziol and Sweet initially believed that the
entertainer was the massage customer, the evidence also
32 UNITED STATES V. KOZIOL
established that Sweet entered into a substantial settlement
with the manager, and Koziol alleged that the manager
assaulted him. Therefore, a rational jury could conclude that
even if Sweet and Koziol initially believed that the
entertainer was the massage customer, they learned that it
was the manager long before making the same allegations
against the entertainer.
Second, while a rational jury could conceivably interpret
the manager’s quick settlement and the release of claims
against the entertainer to indicate a cover-up, we must again
view the evidence in the light most favorable to the
government. In that light, a rational jury could accept the
manager’s testimony that the settlement reflected “a
business decision” to avoid ruining his own career, and that
the settlement included a release of any claims against the
entertainer because the initial communications from Sweet’s
attorney referred to the entertainer and the manager wanted
to prevent any further false accusations against his client, the
entertainer.
Third, although Koziol’s later demands all referenced the
entertainer rather than the manager, he made those demands
only after accusing the manager of assaulting him and only
after the manager’s attorney rejected Koziol’s attempts to
obtain a second settlement for claims related to the January
2016 massage. Thus, viewing this evidence in the light most
favorable to the government, a rational jury could conclude
that after Koziol’s attempts to extract a second settlement
from the manager failed, he changed his story and targeted
the entertainer, demonstrating that he knew his claim against
the entertainer was baseless.
Finally, a rational jury could conclude that Koziol’s false
claim that he had a video of the entertainer at the apartment
the night of the massage did not establish that Koziol
UNITED STATES V. KOZIOL 33
believed the entertainer was the massage customer. Instead,
this evidence could rationally show that—as Koziol’s
attorney argued with respect to the falsified photograph—
Koziol’s bluffs were simply “very unsophisticated.” In the
light most favorable to the government, a rational jury could
conclude that Koziol was just not very adept in his extortion
attempts, rather than inferring that Koziol must have
believed that the entertainer was the massage customer.
In sum, when viewed in the light most favorable to the
government, the evidence was more than sufficient for the
jury to conclude beyond a reasonable doubt that Koziol
knew his claims against the entertainer were baseless and
that he had no right to demand money from the entertainer.
Therefore, we conclude that the evidence was sufficient to
support Koziol’s conviction.
IV.
Koziol also argues that the district court erred in
instructing the jury. We “review the formulation of jury
instructions for abuse of discretion, but review de novo
whether those instructions correctly state the elements of the
offense and adequately cover the defendant’s theory of the
case.” United States v. Liew, 856 F.3d 585, 595–96 (9th Cir.
2017) (citing Peralta v. Dillard, 744 F.3d 1076, 1082 (9th
Cir. 2014) (en banc)). Thus, we must determine “whether
the instructions as a whole are misleading or inadequate to
guide the jury’s deliberation.” Id. at 596 (quoting United
States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010)).
A party must state with adequate specificity his grounds
for an objection to an instruction. Fed. R. Crim. P. 30(d);
Hofus, 598 F.3d at 1175. When the defendant fails to request
an instruction or fails to offer an objection to a proposed
instruction, we review only for plain error. Hofus, 598 F.3d
34 UNITED STATES V. KOZIOL
at 1175; United States v. Conti, 804 F.3d 977, 981 (9th Cir.
2015). “Under the plain error standard, relief is warranted
where the district court committed (1) error that (2) is plain;
(3) ‘affected substantial rights;’ and (4) ‘seriously affected
the fairness, integrity, or public reputation of judicial
proceedings.’” United States v. Vargem, 747 F.3d 724, 728
(9th Cir. 2014) (quoting United States v. Teague, 722 F.3d
1187, 1190 (9th Cir. 2013)). Where a party objects and the
instructions were in fact erroneous, we will affirm only if the
error was “harmless beyond a reasonable doubt.” Villalobos,
748 F.3d at 957 (citation omitted).
Koziol argues that the court erroneously instructed the
jury on the meaning of “wrongful” under the Hobbs Act by
not requiring the jury to find the two prongs of the sham
litigation exception to the Noerr-Pennington doctrine. He
also argues that the district court erroneously instructed the
jury that the Hobbs Act criminalizes “wrongful” threats of
reputational harm. Because Koziol did not object to the
instructions on the first basis, we review the challenged
instruction for plain error and conclude there was none.
Although Koziol did object to the instructions on the second
basis, we conclude that any error was harmless. Thus, we
reject Koziol’s instructional error arguments.
A.
The district court instructed the jury, in relevant part, that
for the defendant to be found guilty of attempted extortion
in violation of 18 U.S.C. § 1951(a), the government must
prove that “the defendant intended to induce [the entertainer]
to part with property by wrongful threat of economic or
reputational harm.” The court further instructed the jury that
“[a] threat is wrongful if it is unlawful or if the defendant
knew he was not entitled to obtain the property.”
UNITED STATES V. KOZIOL 35
Koziol argues the court erroneously failed to instruct the
jury that, to find a threat of litigation to be “wrongful,” it
must find the requirements of the sham litigation exception
to the Noerr-Pennington doctrine—i.e., that the lawsuit was
(1) objectively baseless and (2) asserted with an improper
motive. He also argues that this instruction was erroneous
because the district court did not define “unlawful.”
Although Koziol proposed an instruction removing the
term “unlawful,” he did not argue that, if that term were
included, the district court should define it, nor did he object
that the instruction failed to require the jury to find the
requirements of sham litigation. Accordingly, we review for
plain error. See United States v. Peterson, 538 F.3d 1064,
1071 (9th Cir. 2008) (“A defendant’s mere proposal of an
alternate instruction does not satisfy Rule 30’s standard of
specificity.” (citations omitted)).
Koziol argues that the instruction did not require the jury
to find the first prong of the sham litigation exception—that
his claim was objectively baseless—because it allowed the
jury to find that his litigation threat was wrongful if it was
“unlawful,” and therefore the jury could find him guilty even
if Koziol believed he had a lawful claim. Koziol also argues
that the instruction did not require that the jury find the
second prong of the sham litigation exception—improper
motive—because it required only that he knew he was not
entitled to obtain money from the entertainer, “which is
comparable to the requirement that the lawsuit be
‘objectively baseless,’” but “[i]t said nothing about the
additional requirement of an improper collateral purpose.”
As an initial matter, we note that Koziol’s arguments
appear to confuse the objective and subjective prongs of the
sham litigation exception. In both arguments, Koziol asserts
that whether his claim against the entertainer was
36 UNITED STATES V. KOZIOL
“objectively baseless” turns on whether he knew he had no
claim against the entertainer. Thus, Koziol appears to argue
that a subjective standard applies to determine whether a
claim is “objectively baseless.” But the Supreme Court has
explained that a lawsuit is objectively baseless where “no
reasonable litigant could realistically expect success on the
merits.” Pro. Real Est. Invs., 508 U.S. at 60. Thus, contrary
to Koziol’s arguments, the first prong of the sham litigation
exception is determined by the objective standard of a
reasonable litigant, not Koziol’s subjective belief.
Nonetheless, even if we construe Koziol’s argument as
challenging the instruction for failing to require the jury to
find that his threat was baseless under an objective standard,
we conclude that he has not established plain error. First,
Koziol does not argue that the district court erred by
instructing the jury that an “unlawful” threat is “wrongful”
under the Hobbs Act. See Villalobos, 748 F.3d at 957–58
(explaining that threats that were “unlawful” were
“wrongful” under the Hobbs Act). Second, the government
argued to the jury that Koziol’s threats were “wrongful”
under the Act because his claims were completely fabricated
and he knew he was not entitled to obtain money from the
entertainer; the government did not argue that the threats
themselves were unlawful. 17 Finally, Koziol’s attorney
conceded in his closing argument that Koziol’s claim against
the entertainer was objectively baseless. 18 Therefore, the
17
For this reason, Koziol’s argument that the court erred by not
defining “unlawful” also fails.
18
Koziol’s attorney stated that “the government has given you
enough proof for you to really believe it wasn’t [the entertainer] in that
room that day. I think they have proven that beyond a reasonable doubt
. . . .” Based on the uncontroverted evidence that the entertainer was not
the massage customer and was not present, no reasonable litigant could
UNITED STATES V. KOZIOL 37
first prong of the sham litigation exception was not at issue,
there is no reasonable probability that omitting it from the
instruction affected the verdict, and any error did not affect
the fairness of the proceedings. Conti, 804 F.3d at 981–82.
Koziol’s argument that the instruction did not require the
jury to find the second prong of the sham litigation exception
similarly fails. Koziol argues that the instruction allowed the
jury to find that a threat is wrongful if the defendant “knew
he was not entitled to obtain the property,” but did not
require the jury to find that the threat was for an improper
purpose. Koziol argues that the second prong of the sham
litigation exception requires more than subjective
knowledge that a claim is baseless. He also argues “that a
reasonable jury could not possibly make the required finding
[that] Mr. Koziol had a collateral purpose and was
indifferent to the outcome of the threatened lawsuit.” But
we have already rejected these arguments and concluded that
because Koziol did not file his threatened lawsuit, a jury
could reasonably conclude that Koziol hoped to enforce his
claim “through the threat of litigation rather than through
actual litigation,” and therefore sought to achieve his “aim[s]
through the litigation process rather than through the result
of that process.” See Rock River Commc’ns, 745 F.3d at 353
(citation omitted).
Moreover, the government’s theory of the case, which it
explicitly argued to the jury, was that Koziol never had any
intention of filing a lawsuit. The government argued that
Koziol made false allegations against the entertainer
“because he wanted to extract an easy score, an easy payday
have realistically expected success on the merits. See Pro. Real Est.
Invs., 508 U.S. at 60–61. Therefore, this concession established that
Koziol’s claim was objectively baseless.
38 UNITED STATES V. KOZIOL
from someone who had much to lose, not because defendant
was going to file a legitimate lawsuit” and that Koziol’s
allegations were “made up. It didn’t happen. None of it
happened. He knew it. It’s not about a threat to file a
lawsuit, it’s completely fabricated.”
Because the instruction required the jury to find that
Koziol knew he was not entitled to the property, and the
evidence supported the government’s argument that Koziol
was hoping to enforce his claims through the threat of
litigation rather than the result of the litigation process, we
conclude that the instruction was not misleading and it
adequately guided the jury’s deliberation. See Liew,
856 F.3d at 595–96, 598. Finally, even if the instruction
were erroneous, there was strong evidence that Koziol’s
threatened litigation was a sham and therefore Koziol has not
shown a reasonable probability that any instructional error
affected the outcome of the trial. See Conti, 804 F.3d at 982.
B.
Koziol also argues that the Hobbs Act does not apply to
threats of reputational harm and, therefore, the district court
erred by instructing the jury that, to return a guilty verdict, it
could find that Koziol “intended to induce [the entertainer]
to part with property by wrongful threat of economic or
reputational harm.” Koziol’s argument relies entirely on the
reasoning of the dissent in an unpublished decision from this
court, United States v. Brank, 724 F. App’x 527, 530–31 (9th
Cir. 2018) (per curiam) (Reinhardt, J., concurring in part and
dissenting in part). Koziol does not point us to any binding
precedent to support his argument, and we find nothing in
the plain language of the statute that requires us to conclude
UNITED STATES V. KOZIOL 39
that threats of reputational harm are not within the purview
of the Hobbs Act. 19
Nonetheless, we need not decide whether extortion under
the Hobbs Act includes threats of reputational injury because
any error in the instruction including reputational harm was
harmless beyond a reasonable doubt. See Villalobos,
748 F.3d at 957 (explaining that a jury instruction can be
found harmless “if it is clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent
the error” (internal quotation marks and citations omitted)).
The uncontested evidence, admitted without objection,
readily established that the entertainer was reasonably
fearful that Koziol’s allegations would damage his career,
causing economic harm. To determine whether a defendant
used “fear,” courts look to “the reasonable state of mind of
the victim.” United States v. Greger, 716 F.2d 1275, 1278
(9th Cir. 1983) (citations omitted). “A reasonable fear” of
economic loss “is clearly sufficient to support a conviction
of ‘extortion’ under the statute.” Cape v. United States,
283 F.2d 430, 434 (9th Cir. 1960) (citations omitted).
19
In Brank, the majority observed that the plain language of the
Hobbs Act encompasses reputational injury. 724 F. App’x at 529.
Relying on United States v. Nardello, 393 U.S. 286 (1969), the majority
concluded that the generic use of “extortion” encompasses threats to
reputation. 724 F. App’x at 529. In Nardello, the Supreme Court was
tasked with determining whether, for purposes of the Travel Act,
18 U.S.C. § 1952, the defendant’s threats to expose the private
relationships of third parties fell within the statute’s definition of
extortion. 393 U.S. at 296 (citation omitted). After examining the Travel
Act’s legislative history, the Court declined to give “‘extortion’ an
unnaturally narrow reading,” finding that threats to reputation fell within
“the generic term.” Id. Thus, in Brank, we reasoned the same scope
applied to the generic term “extortion” as used in the Hobbs Act. 724 F.
App’x at 529.
40 UNITED STATES V. KOZIOL
The entertainer testified that Koziol’s allegations could
damage his career and could “definitely impact [him]
financially, a lot”; that he could lose corporate sponsors; that
he would not be hired for certain jobs, including specific
children’s television programs and movies, fundraising galas
(which he described as the source of “a lot of [his] income”),
and performances at religious colleges and universities
(where he stated he “do[es] extra well”); and that if he lost
these jobs, he could not continue to employ the people who
work on his performances. This evidence sufficiently
demonstrates that the entertainer had a reasonable fear of
economic loss to establish the “use of fear” under the Hobbs
Act. See Cape, 283 F.2d at 434.
Koziol asserts that error from this instruction cannot be
harmless because the government argued that the entertainer
suffered both economic and reputational harm, and the
evidence of economic harm was based on the entertainer’s
opinion without “accounting evidence show[ing] actual lost
business.” But he cites no authority to suggest that the
entertainer’s testimony would not be sufficient to establish
his fear of economic harm or that accounting evidence is
necessary, particularly for a charge of attempted extortion
where the threatened lawsuit was not filed and the victim did
not suffer the feared economic harm. Indeed, we have
previously determined that testimony from extortion victims
that they believed “serious damage would occur to [the]
business if” the defendant carried out his threat was
sufficient to show the use of “fear” to obtain property.
Greger, 716 F.2d at 1278–79.
Koziol also argues that “the only evidence of potential
economic harm was [the entertainer’s] self[-]serving
evaluation that he has an ‘autobiographical’ career and is a
‘person who is relevant and clean.’” We reject this argument
UNITED STATES V. KOZIOL 41
because it understates and ignores significant record
evidence that the entertainer feared economic harm based on
a reasonable belief that Koziol’s threatened lawsuit could
damage his career by costing him jobs and other business
relationships. See Greger, 716 F.2d at 1278–79; Cape,
283 F.2d at 432, 434.
We conclude that even if the district court erred by
including reputational harm in the instruction, any error was
harmless beyond a reasonable doubt. See Villalobos,
748 F.3d at 957. The uncontested evidence clearly
established that Koziol’s threats caused the entertainer to
fear economic harm. Therefore, we reject Koziol’s
arguments of instructional error.
V.
Koziol also argues that his conviction must be vacated
based on evidentiary errors. Specifically, Koziol argues that
the district court erred by allowing a witness—the manager’s
attorney, Wright—to opine on Koziol’s and the manager’s
credibility. When a party preserves an objection to the
district court’s ruling on the admission of evidence, we
review that ruling for abuse of discretion. See United States
v. Obendorf, 894 F.3d 1094, 1098 (9th Cir. 2018). But even
if the district court erred, we will still affirm unless the error
“more likely than not affected the verdict.” Id. (citation
omitted). When an objection to an evidentiary ruling is not
properly preserved, plain error review applies. See United
States v. Del Toro-Barboza, 673 F.3d 1136, 1152 (9th Cir.
2012).
Koziol argues that Wright’s statements explaining letters
she wrote in response to demand letters from Sweet’s
attorney, Saadian, and from Koziol’s attorney, Arzani,
warrant reversal as improper opinion testimony. Although
42 UNITED STATES V. KOZIOL
he did not object to the admission of these letters, Koziol
argues that the district court erred in admitting Wright’s
statements: (1) explaining that, in the letter responding to
Saadian’s demand letter, she was conveying that “the
allegations that we determined to be true were that” the
manager responded to Sweet’s massage ad and that he was
the massage customer; (2) explaining that “it was [her]
understanding based on [an] investigation that there were
more text messages that completed the conversation between
[the manager] and Ms. Sweet,” but they were not included
in Saadian’s demand letter; and (3) explaining that, in
response to Arzani’s letter, she wrote that Koziol’s prior
claim that the manager assaulted him was an “utter
fabrication” based on “[i]nformation that [she] learned from
[her] client,” “information that [she] learned from [her]
investigation,” and her conclusion that she “inferred from
the facts,” that Koziol’s claim “just was not plausible or
credible.” 20
At trial, Koziol did not object to the first statement as
improper opinion testimony and he did not make any
objection to the second statement. Accordingly, Koziol
failed to preserve these issues for appeal, and we review for
plain error. 21 See Del Toro-Barboza, 673 F.3d at 1152.
This letter to Arzani stated: “[A]s to [the manager], I will repeat
20
what we told your client last August when he first tried his extortion
scam. His claim that [the manager] assaulted and battered him on
January 10 is a complete and utter fabrication.”
21
We reject Koziol’s argument that his failure to raise the proper
objection does not matter for the standard of review because his
objection on personal knowledge grounds “ma[d]e the point.” An
evidentiary issue is not preserved unless the specific objection is raised
at trial. See, e.g., United States v. Sioux, 362 F.3d 1241, 1245 n.5 (9th
Cir. 2004); see also Del Toro-Barboza, 673 F.3d at 1152 (“[A] party fails
UNITED STATES V. KOZIOL 43
Koziol fails to establish plain error for either statement
because they reflect Wright’s understanding of the
manager’s version of the incident; they do not clearly or
directly opine on whether the manager was telling the truth.
Thus, the district court did not plainly err in allowing this
testimony.
But, as the government concedes, the district court
abused its discretion in overruling Koziol’s objection and
admitting Wright’s third statement that she “inferred from
the facts” that Koziol’s claim that the manager assaulted him
was not credible. We conclude, however, that the admission
of this testimony was harmless because it was similar to and
cumulative of Wright’s other testimony—which was
admitted without objection and not challenged on appeal—
that she “was incredulous” and “thought [Koziol’s claim]
was not believable.” 22 See United States v. Lindsey,
634 F.3d 541, 553 (9th Cir. 2011) (stating that the erroneous
admission of evidence was harmless because the evidence
was cumulative of evidence that was not challenged on
appeal).
In addition, as we have already explained, the evidence
strongly supports the conclusion that Koziol lied in his
claims that the entertainer assaulted him and that he knew he
had no lawful claim against the entertainer. Therefore, any
error in admitting Wright’s third statement that she
concluded that Koziol’s claims against the manager were not
to preserve an evidentiary issue for appeal not only by failing to make a
specific objection, but also by making the wrong specific objection.”
(alteration in original) (citations omitted)).
22
Wright also testified, without objection, that she told Koziol she
“didn’t believe him” because he was not mentioned in any prior
correspondence regarding the incident.
44 UNITED STATES V. KOZIOL
credible was harmless based on the strength of the
government’s case charging Koziol with extorting the
entertainer, not the manager. See United States v. Gillam,
167 F.3d 1273, 1277 (9th Cir. 1999); United States v. Wang,
49 F.3d 502, 504 (9th Cir. 1995).
Finally, the district court remedied any error by giving a
limiting instruction that Wright’s testimony was “offered
only to explain why she did what she did” and did not
“control[]” the jury’s decision of guilt. See United States v.
Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (concluding that
limiting instruction mitigated any “resultant prejudice” from
admitted evidence and noting that “we must presume that
juries will follow the district court’s limiting instructions”).
Koziol, however, argues that the limiting instruction was
inadequate because the court stated that Wright’s statements
had some probative value. But Wright’s testimony that she
told Koziol that his claims were baseless, and why, was
relevant to whether Koziol ever knew that his threatened
litigation was a baseless sham. Therefore, we conclude that
the district court’s admission of Wright’s third statement
constitutes harmless error. See, e.g., United States v.
Arambula-Ruiz, 987 F.2d 599, 605 (9th Cir. 1993) (holding
error in admitting evidence was “harmless because it is not
probable that the evidence materially affected the jurors’
verdict”).
VI.
Finally, Koziol argues that the district court erred at
sentencing by misapplying the Sentencing Guidelines and by
failing to recognize its discretion to order that his sentence
run concurrently to his sentence for a prior conviction in
state court for pimping and pandering. Koziol argues that
these errors require that we vacate his sentence.
UNITED STATES V. KOZIOL 45
We review the district court’s sentencing decision for
abuse of discretion. United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). If the district court improperly
calculates the Guidelines range or bases its decision on
clearly erroneous facts, it abuses its discretion. Id. We
review for plain error when a defendant fails to object to the
district court’s implementation of the Guidelines. See
United States v. Lloyd, 807 F.3d 1128, 1139 (9th Cir. 2015).
A.
The district court sentenced Koziol to seventy months’
imprisonment, concluding that his total offense level was
twenty-three and he was in criminal history category IV. To
calculate the Guidelines range, the district court applied
Guidelines § 2B3.3, “Blackmail and Similar Forms of
Extortion,” which provides a base offense level of nine.
U.S.S.G. § 2B3.3(a). This section also provides for
increases in the base offense level based on “the amount
obtained or demanded,” with the specific increases set out in
§ 2B1.1. Id. § 2B3.3(b)(1). If the amount obtained or
demanded exceeds $550,000, but is $1,500,000 or less, a
fourteen-level increase applies. Id. § 2B1.1(b)(1)(H)–(I).
Because Koziol demanded $1,000,000 from the entertainer,
the district court added fourteen levels to the base offense
level. Thus, the district court concluded that Koziol’s total
offense level was twenty-three, which resulted in a
guidelines imprisonment range of seventy to eighty-seven
months. The district court sentenced Koziol to the low end
of that range.
Koziol argues that the district court erred by applying the
fourteen-level increase in § 2B1.1 because his initial
settlement demand of $1,000,000 was intended to start
negotiations and therefore cannot be considered the true
46 UNITED STATES V. KOZIOL
amount “demanded” for purposes of § 2B3.3(b). 23 He
argues that “people involved in litigation know the initial
‘demand’ is not the real demand.” Thus, he contends,
without citation to authority, that a district court must “make
a finding . . . about what the defendant’s intended demand
was.”
But § 2B3.3 does not instruct courts to determine the
defendant’s intended demand, and instead provides for
increases in the offense level based on the amount “obtained
or demanded.” See United States v. Zhuang, 270 F.3d 107,
108–09 (2d Cir. 2001) (rejecting argument that an increase
in offense level under § 2B3.3 should depend on the
defendant’s intent or ability to receive the amount demanded
and affirming sentence enhancement based on initial
$68,000 demand even though the defendant later reduced the
demand to $10,000). It is undisputed that Koziol demanded
$1,000,000 from the entertainer. Therefore, the district court
did not err by applying the specific offense characteristics in
§ 2B1.1(b)(1)(H) and increasing Koziol’s base offense level
by fourteen points.
B.
Koziol also argues that the district court erred by failing
to apply Guidelines § 2X1.1, which provides offense
guidelines for attempt, solicitation, and conspiracy when
these offenses are not otherwise covered by a specific
offense guideline. Section 2X1.1(b)(1) provides that the
district court shall decrease the offense level by three for an
23
In his demands, Koziol stated he would be open to a “structured
settlement,” but he did not argue before us that the district court erred by
not considering the possibility that the value of any “structured
settlement” would be below the $550,000 threshold of § 2B1.1(b)(1)(H).
UNITED STATES V. KOZIOL 47
attempted offense, “unless the defendant completed all the
acts the defendant believed necessary for successful
completion of the substantive offense or the circumstances
demonstrate that the defendant was about to complete all
such acts but for apprehension or interruption by some
similar event beyond the defendant’s control.” 24 In other
words, a defendant is entitled to the reduction unless “the
remaining steps to be taken in the commission of a crime are
so insubstantial that the commission of the substantive
offense is inevitable.” United States v. Martinez-Martinez,
156 F.3d 936, 939 (9th Cir. 1998).
Because Koziol did not raise this argument during
sentencing, we review for plain error. See Lloyd, 807 F.3d
at 1139. To establish plain error in sentencing, Koziol “must
‘demonstrate a reasonable probability that [he] would have
received a different sentence if the district court had not
erred.’” See United States v. Joseph, 716 F.3d 1273, 1280
(9th Cir. 2013) (alteration in original) (quoting United States
v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011)). “A
‘reasonable probability’ is, of course, less than a certainty,
or even a likelihood.” Id. (citation omitted). Plain error
“seriously affects the fairness, integrity, or public reputation
of judicial proceedings” where it “may have increased the
length of a defendant’s sentence.” Id. (citations omitted).
The government concedes that the district court erred by
failing to apply § 2X1.1, which applies by default because
§ 2B3.3 does not expressly apply to attempted extortion, but
it argues that the court did not plainly err because Koziol
24
Under § 2X1.1(a), the court applies “[t]he base offense level from
the guideline for the substantive offense, plus any adjustments from such
guideline for any intended offense conduct that can be established with
reasonable certainty.”
48 UNITED STATES V. KOZIOL
would not have been entitled to a reduction under this
provision. We reject the government’s argument and
conclude that this conceded error was plain. See United
States v. Simon, 858 F.3d 1289, 1298 (9th Cir. 2017) (en
banc) (holding that a Guidelines section expressly covers an
inchoate offense “only if the Guidelines themselves so
indicate”); Joseph, 716 F.3d at 1280 (explaining that an error
is plain if it is clearly “contrary to the law at the time of
appeal” (citation omitted)).
The government, however, contends that it “would not
have been clearly erroneous for the district court to find that
defendant completed all the acts he believed necessary for a
successful completion of the crime of extortion.” But the
district court did not consider § 2X1.1 and did not make such
findings. There is at least a reasonable probability that the
district court would have imposed a three-level reduction
had it imposed the correct Sentencing Guideline. Therefore,
this error, which may have increased Koziol’s sentence,
affected Koziol’s substantial rights and the integrity of the
judicial proceedings. See Joseph, 716 F.3d at 1280. We
vacate the sentence and remand for resentencing.
C.
Finally, Koziol asserts that the district court erred in
failing to recognize that it had discretion to impose a
sentence to run concurrent with the sentence imposed for
Koziol’s conviction in state court. The government responds
that the district court understood that it had authority under
18 U.S.C. § 3584(a) to impose a concurrent sentence but
“did not believe a concurrent sentence was appropriate.” We
need not address this issue as we have already determined
that there was reversible error requiring resentencing. On
remand, the district court can determine if a concurrent
sentence is appropriate under 18 U.S.C. § 3584(a). See
UNITED STATES V. KOZIOL 49
United States v. Montes-Ruiz, 745 F.3d 1286, 1293 (9th Cir.
2014); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.
1995).
VII.
The Hobbs Act imposes criminal liability for extortion
on those who obtain property from another by the “wrongful
use of . . . fear.” 18 U.S.C. § 1951(a), (b)(2). We conclude
that there is no statutory, constitutional, or policy basis to
exclude categorically threats of sham litigation from liability
under the Hobbs Act. Instead, we must consider the
circumstances of such threats to determine if the means used
were “wrongful” under the Act, or if the ends were
“wrongful” because the defendant sought property to which
he knew he had no lawful claim. We hold that Koziol’s
threats of sham litigation were wrongful because sufficient
evidence supported the jury’s verdict that he sought property
to which he knew he had no lawful claim, and we affirm his
conviction for attempted extortion under the Hobbs Act. We
also reject Koziol’s arguments of instructional and
evidentiary error. However, because we conclude that there
was plain error at sentencing, we vacate Koziol’s sentence
and remand for further proceedings consistent with this
opinion.
Conviction AFFIRMED; Sentence VACATED and
REMANDED for resentencing.