FILED
NOT FOR PUBLICATION APR 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50300
Plaintiff - Appellee, D.C. No. 2:09-cr-00824-GHK-1
v.
MEMORANDUM*
ALFRED NASH VILLALOBOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Argued and Submitted January 7, 2014
Pasadena, California
Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.
Defendant-Appellant Alfred Nash Villalobos appeals from a jury conviction
and sentence for attempted extortion, in violation of 18 U.S.C. § 1951(a), and
endeavoring to obstruct justice, in violation of 18 U.S.C. § 1503(a). Villalobos
alleges five errors: (1) the preclusion of a claim of right defense and the jury
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
instructions related to the extortion charge; (2) the sufficiency of the evidence that
Villalobos endeavored to obstruct justice; (3) the admission into evidence of two of
Villalobos’s statements; (4) Agent Gary Bennett’s and Benjamin Gluck’s (Gluck)
testimony concerning Villalobos’s statements; and (5) the sentencing enhancement
for abuse of a position of trust.
In an opinion filed contemporaneously with this memorandum disposition,
we hold that although the district court’s jury instructions concerning attempted
extortion were erroneous, that error was harmless. We also hold that the district
court did not err when it precluded Villalobos’s claim of right defense. We address
the remainder of Villalobos’s claims below. Because the parties are familiar with
the facts and procedural history of this case, we repeat only those facts necessary to
resolve the issues raised on appeal. We affirm.
I. Sufficiency of the Evidence
Villalobos argues that the government failed to prove beyond a reasonable
doubt that he endeavored to obstruct justice in violation of 18 U.S.C. § 1503(a),
because there was insufficient evidence that Orit Anjel (Orit) would testify before a
grand jury. Construing the evidence in the light most favorable to the prosecution,
as we must, we conclude that any rational trier of fact could have found the
essential elements of endeavoring to obstruct justice beyond a reasonable doubt.
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See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Nevils, 598
F.3d 1158, 1163–65 (9th Cir. 2010) (en banc).
There was sufficient evidence that Villalobos acted with an intent to obstruct
justice and in a manner that had the natural and probable effect of interfering with
the due administration of justice. See United States v. Aguilar, 515 U.S. 593, 599
(1995); United States v. Laurins, 857 F.2d 529, 536–37 (9th Cir. 1988). The
evidence shows that Villalobos repeatedly promised to influence Orit to have her
“shade[]” things as necessary and to “do whatever it is [they] need her to do”
during her interview with Assistant U.S. Attorney Keri Axel (Axel). The evidence
also demonstrates that Villalobos believed Orit’s false statements would be
conveyed to the grand jury. Finally, the evidence shows that the natural and
probable effect of Villalobos’s actions would have been interference with grand
jury proceedings because in standard practice, grand jury testimony would have
been the next step after Orit’s interview with Axel. The fact that Villalobos was
not successful in having Orit testify before a grand jury because he was foiled
when Gluck reported him to the U.S. Attorney’s Office is of no import since an
“endeavor” to obstruct justice suffices. See Aguilar, 515 U.S. at 599, 601–02.
Accordingly, in light of the evidence presented at trial, construed in the light
most favorable to the prosecution, any rational trier of fact could have found
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beyond a reasonable doubt the essential elements of endeavoring to obstruct
justice.
II. Admission of Villalobos’s Statements
Villalobos challenges the district court’s admission of two of his statements
into evidence: (1) “I’m a very reasonable person. In other cases when people have
needed to do something like hand me a bag . . . with $80,000. I’ve taken it. . . .
And dealt with it,” and (2) “You can’t convince me that [Rabbi Yemeni] can’t
come up with the hundred grand. I can piss away a hundred grand in ten hours at
the casino. The rabbi can piss away a hundred grand in a weekend.”
The district court did not abuse its discretion in admitting these two
statements. Both statements are relevant. See Fed. R. Evid. 401. The first
statement tends to show that Villalobos was a willing participant in the offense and
was trying to devise a method of payment to allay Gluck’s fears by avoiding
detection. The second statement tends to show that Villalobos was attempting to
persuade Rabbi Yemeni, through Gluck, to pay the demanded money by making it
appear more palatable to Rabbi Yemeni. Additionally, the probative value of the
statements is not substantially outweighed by a danger of unfair prejudice. See
Fed. R. Evid. 403. Any risk of unfair prejudice was mitigated by the district
court’s limiting instructions to the jury. See United States v. Flores-Blanco, 623
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F.3d 912, 920 (9th Cir. 2010); see also Weeks v. Angelone, 528 U.S. 225, 234
(2000).
III. Agent Bennett’s and Gluck’s Statements
Villalobos contends that the district court erred when it allowed Agent
Bennett and Gluck to interpret Villalobos’s statements. Villalobos has waived this
argument because he fails to identify the specific testimony to which he objects on
appeal. See United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006); see
also Fed. R. App. P. 28(a)(9).
IV. Sentencing Enhancement for Abuse of Position of Trust
Villalobos contends that the district court erred in applying a two-level
upward adjustment in the advisory guidelines range for abuse of a position of trust
under Sentencing Guideline § 3B1.3. The district court did not err in applying the
sentencing enhancement because Villalobos’s special skills as a lawyer
significantly facilitated the commission of the crimes of attempted extortion and
endeavoring to obstruct justice. See U.S. Sentencing Guidelines Manual § 3B1.3
cmt. n.4. For example, if Villalobos was not a lawyer, he would not have been able
to credibly approach Gluck and Rabbi Yemeni with a civil demand letter that
sought an alleged settlement offer. Additionally, he used his knowledge of the
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grand jury system to tell Gluck that Orit would not be able to contradict the
statements she made to Axel when she testified before the grand jury.
AFFIRMED.
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