United States v. Koziol

993 F.3d 1160

UNITED STATES of America, Plaintiff-Appellee,

v.Benjamin KOZIOL, aka Benjamin Joseph Donovan, aka Benjamin Joseph Koziol, Defendant-Appellant.

No. 19-50018

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 22, 2020 Pasadena, California

Filed April 13, 2021

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.

Before: Carlos T. Bea and Bridget S. Bade, Circuit Judges, and Gershwin A. Drain,^* District Judge.

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 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, 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.

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.

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 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 $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 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...