FILED NOT FOR PUBLICATION FEB 06 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 15-50467

Plaintiff-Appellee, D.C. No. 2:15-cr-00131-JFW-1 v. TEOFIL BRANK, AKA @JarecWentworth, MEMORANDUM* AKA Jarec Wentworth,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California John F. Walter, District Judge, Presiding

Argued and Submitted June 8, 2017 Pasadena, California Before: Reinhardt and Hurwitz,** Circuit Judges, and Berg,*** District Judge.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. ** This case was submitted to a panel that included Judge Kozinski, who recently retired. Following Judge Kozinski's retirement, Judge Hurwitz was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Hurwitz has read the briefs, reviewed the record, and listened to oral argument. *** The Honorable Terrence Berg, United States District Judge for the (continued...) Teofil Brank appeals his convictions for one count of transmitting threatening communications with intent to extort, in violation of 18 U.S.C. § 875(d); two counts of extortion and attempted extortion affecting interstate commerce by nonviolent threat, in violation of 18 U.S.C. § 1951(a) (“the Hobbs Act”); one count of using a facility of interstate commerce to facilitate unlawful activity, in violation of 18 U.S.C. § 1952(a)(3); and two counts of receiving proceeds of extortion, in violation of 18 U.S.C. § 880. He also appeals his sentence. For the reasons set forth below, we AFFIRM.

States v. Nardello, 393 U.S. 286, 296 (1969), the Supreme Court held that “extortion,” when left undefined in a federal criminal anti-racketeering statute (in that case, the Travel Act, 18 U.S.C. § 1952), encompassed threats to injure a victim’s reputation. We cannot conclude that Congress adopted a narrower definition of “extortion” in the Hobbs Act. Brank’s contention that the evidence was insufficient to establish extortion under the Hobbs Act must therefore be rejected.

was not an abuse of discretion. See Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1429 (9th Cir. 1991).

be considered to represent essentially one composite harm (e.g., robbery of the same victim on different occasions involves multiple, separate instances of fear and risk of harm, not one composite harm).” On the evidence before it, the district court did not plainly err in concluding that Brank’s conduct caused separate instances of fear and harm.

Appellant has filed two submissions pro se while represented by counsel (docket entries 45 and 52). Because an appellant represented by counsel may only file motions through counsel, this Court declines to entertain the pro se submissions. AFFIRMED.

FILED United States v. Brank, No. 15-50467 FEB 6 2018 REINHARDT, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I strongly disagree with the majority disposition regarding the scope of Hobbs Act extortion. The Hobbs Act was not intended to, and does not, encompass injury, or threatened injury, to reputation. Application of our ordinary tools of statutory interpretation reveals ambiguity. The definition of extortion itself is muddled—the adjective “threatened” inexplicably modifies “fear.” 18 U.S.C. § 1951(b)(2). Moreover, all other violations of the Act require harm or threats of harm to person or property—indicating that the scope of harm for Hobbs Act extortion is similarly limited. By contrast, the Travel Act—which includes the generic “extortion” definition on which the majority relies— displays no such limitation. It instead encompasses a wide variety of “unlawful activit[ies],” ranging from failure to pay federal excise taxes on liquor to prostitution to bribery. 18 U.S.C. § 1952.

The Hobbs Act must be read in tandem with a similar and closely related statute, 18 U.S.C. § 875. Unlike the Hobbs Act, that statute expressly includes threats to reputation. The two statutes developed roughly in parallel, but the Hobbs Act and its predecessor, the Anti-Racketeering Act, never employed any such language. Instead, the Hobbs and Anti-Racketeering Acts always targeted a narrower set of conduct—principally related to racketeering. See Scheidler v. Nat’l Org. for Women, 537 U.S. 393, 406-07 (2003). The legislative history of the Hobbs Act likewise evinces Congress’s paramount concern for harm, and threats of harm, to person and property—and no concern whatsoever regarding harm to reputation. See, e.g., Hearings Before Subcomm. No. 3 of the H. Comm. on the Judiciary on H.R. 5218, H.R. 6752, H.R. 6872, & H.R. 7067, 77 Cong. 332, 377, 420-24 (1942).

The majority’s reliance on the Travel Act case United States v. Nardello, 393 U.S. 286 (1969), and the federal generic definition of extortion used for that Act is wholly misplaced here. Unlike the Travel Act, the Hobbs Act defines extortion in a circumscribed manner—indicating that the Hobbs Act intended a more precise and limited definition. We ought not disregard that specific statutory definition, and the attendant interpretive tools, by assuming that Congress intended consistency with a statute that lacks a definition.

This is all the more true because the Hobbs Act is a criminal statute. We must interpret criminal statutes (and similar civil statutes, such as immigration laws) narrowly, because we recognize their especially weighty consequences for individuals’ lives. Our jurisprudence must take into account both the severity of criminal penalties themselves and the web of collateral consequences that attend a criminal conviction—the potential for loss of voting rights; restrictions on movement; difficulty in obtaining employment, apartment leases, and admission to professional organizations; and, in many cases, the possibility of deportation to a place that is not now and may never have been home—with all the anguish and hardship that attends the prospect of permanent separation from family, and the anxiety of not knowing at what moment this expulsion might occur. See Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1799-1803 (2012).

These oftimes drastic consequences require a special vigilance on the part of courts to ensure that only clearly prohibited conduct results in criminal sanctions. The rule of lenity is, consequently, a bedrock principle of statutory interpretation in criminal cases. See, e.g., Scheidler, 537 U.S. at 408. Moreover, because criminal law is primarily a local not a national matter, we require a clear statement of congressional purpose before interpreting a federal criminal statute to encompass conduct already subject to state criminal penalties. Construing the scope of “extortion” as used in the Hobbs Act in light of these fundamental tenets requires us to resolve the obvious ambiguities against the government. Accordingly, I would overturn Brank’s convictions under the Hobbs Act. I concur in the remainder of the majority disposition.