United States v. Benjamin Koziol

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. Jauregui (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

5

In 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.