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No. 15-50467

IN THE UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT
_________________________________

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

v.

TEOFIL BRANK,

Defendant/Appellant.
___________________________________

APPELLANT TEOFIL BRANKS


REPLY BRIEF ON APPEAL

Appeal from the United States District Court


for the Central District of California
The Honorable John F. Walter
United States District Judge
No. 15 Cr. 131 JFW

COLEMAN & BALOGH LLP


ETHAN A. BALOGH
LISA MA
235 Montgomery Street, Suite 1070
San Francisco, CA 94104
Telephone: 415.391.0440
Email: eab@colemanbalogh.com

Attorneys for Defendant/Appellant


TEOFIL BRANK
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TABLE OF CONTENTS

I. ARGUMENT IN REPLY ................................................................................ 1

A. The Government failed to present sufficient evidence to sustain the


convictions............................................................................................. 1

1. The Government failed to present sufficient evidence to


establish Hobbs Act extortion (Counts Two and Five). ............. 1

2. The Government failed to present sufficient evidence that


interstate commerce was affected to support Counts Two
and Five. ...................................................................................... 3

a. Count Two ($500,000 wire and car)................................. 3

b. Count Five ($1,000,000) ................................................... 7

3. The Government failed to present sufficient evidence of an


unlawful conditional threat. ........................................................ 9

a. Counts Two and Five. ....................................................... 9

b. Counts One, Three, and Four.......................................... 14

B. The district court should have dismissed the superseding indictment


based on prosecutorial vindictiveness. ................................................ 15

1. Standard of review. ................................................................... 15

2. Brank demonstrated vindictive prosecution, and the


Government failed to rebut that showing. ................................ 15

C. The district court erred in admitting the ammunition clip and


testimony about the gun ...................................................................... 18

1. The district court erred in finding that the testimony about the
gun and ammunition was attenuated from the gun itself. ......... 18

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2. The gun and ammunition evidence was not inextricably


intertwined with the alleged extortion. ..................................... 21

3. The district court abused its discretion under Rule 403 ........... 22

4. The evidentiary error warrants reversal. ................................... 23

5. The erroneous admission of the ammunition clip warrants


reversal. ..................................................................................... 24

D. The district court erred at sentencing. ................................................. 25

II. CONCLUSION.............................................................................................. 29

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TABLE OF AUTHORITIES

Cases

Bordenkircher v. Hayes, 434 U.S. 357 (1978).................................................. 17, 18

In re Lee, 162 B.R. 31 (Bankr. N.D. Ga. 1993) .........................................................2

Scheidler v. Natl Org. for Women, Inc. (NOW II), 537 U.S. 393 (2003) ............2

Scheidler v. Natl Org. for Women, Inc. (NOW III), 547 U.S. 9 (2006) ...............2

United States v. Atcheson, 94 F.3d 1237 (9th Cir. 1996) ..........................................6

United States v. Blair, 762 F. Supp. 1384 (N.D. Cal. 1991) .....................................4

United States v. Bonner, 85 F.3d 522 (11th Cir. 1996) ...........................................26

United States v. Buenrostro-Torres, 24 F.3d 1173 (9th Cir. 1994) .........................28

United States v. Campbell, 770 F.3d 556 (7th Cir. 2014) .........................................2

United States v. Ceccolini, 435 U.S. 268 (1978) .............................................. 18, 19

United States v. Culbert, 435 U.S. 371 (1978) ..........................................................2

United States v. Decinces, 808 F.3d 785 (9th Cir. 2015) ........................................19

United States v. Dorsey, 677 F.3d 944 (9th Cir. 2012) ...........................................21

United States v. Farrell, 877 F.2d 870 (11th Cir. 1989) ...........................................7

United States v. Gilley, 836 F.2d 1206 (9th Cir. 1988) ...........................................24

United States v. Gonzalez-Flores, 418 F.3d 1093 (9th Cir. 2005) ..........................23

United States v. Goodwin, 457 U.S. 368 (1982) ................................... 15, 16, 17, 18

United States v. Green, 648 F.2d 587 (9th Cir. 1981) .............................................24

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United States v. Huynh, 60 F.3d 1386 (9th Cir. 1995) ..............................................5

United States v. James, 987 F.2d 648 (9th Cir. 1993) ...............................................4

United States v. Kaplan, 171 F.3d 1351 (11th Cir. 1999) .....................................5, 6

United States v. Kent, 649 F.3d 906 (9th Cir. 2011) ...............................................15

United States v. Lundin, 817 F.3d 1151 (9th Cir. 2016) ..........................................20

United States v. Lynch, 437 F.3d 902 (9th Cir. 2006) ...........................................5, 6

United States v. Merino-Balderrama, 146 F.3d 758 (9th Cir. 1998) ......................24

United States v. Miller, 993 F.2d 16 (2d Cir. 1993) ................................................27

United States v. Mitov, 460 F.3d 901 (7th Cir. 2006) ................................................5

United States v. Morales, 108 F.3d 1031 (9th Cir. 1997)........................................24

United States v. Nardello, 393 U.S. 286 (1969) ........................................................3

United States v. Norman, 951 F.2d 1182 (10th Cir. 1991) ......................................27

United States v. Pascucci, 943 F.2d 1032 (9th Cir. 1991).........................................2

United States v. Philibert, 947 F.2d 1467 (11th Cir. 1991) .....................................22

United States v. Ramos, 42 F.3d 1160 (8th Cir. 1994) ............................................18

United States v. Reilly, 224 F.3d 986 (9th Cir. 2000) ..............................................20

United States v. Richard, 994 F.2d 244 (5th Cir. 1993) ..........................................18

United States v. Tank, 200 F.3d 627 (9th Cir. 2000) ...............................................27

United States v. Temkin, 797 F.3d 682 (9th Cir. 2015) .............................................5

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Statutes

18 U.S.C. 873 ........................................................................................................12

18 U.S.C. 875 ..........................................................................................................3

18 U.S.C. 1951 ....................................................................................................1, 4

Other Authorities

Department of Justice Manual 9-2403 ....................................................................1

U.S.S.G. 2B3.3 ......................................................................................................28

U.S.S.G. 3D1.2............................................................................................... 25, 28

Rules

Fed. R. Crim. P. 29...................................................................................................29

Fed. R. Evid. 403 .....................................................................................................22

Fed. R. Evid. 404 .............................................................................................. 21, 22

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I. ARGUMENT IN REPLY

A. The Government failed to present sufficient evidence to sustain the


convictions.

1. The Government failed to present sufficient evidence to establish


Hobbs Act extortion (Counts Two and Five).

While deriding Branks claim that fear of reputational harm cannot

support charges of Hobbs Act extortion as unusual, GAB 23,1 the Government

overlooks that the Department of Justice adopts that identical view. Put another

way, DOJ instructs that only physical injury or economic harm may support a

charge of Hobbs Act extortion. Department of Justice Manual 9-2403; see also

AOB 23. That approach is consistent with the statutes text, which prohibits

interference with commerce by 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, 18 U.S.C. 1951(b)(2), which connotes concrete

harm rather than the ethereal harm of reputational damage.

The Government nevertheless urges a broad reading of the Hobbs Act that

encompasses any fear felt by the complainant. GAB 22-25. In so doing, the

Government seeks to extend the statute to a broader range of conduct than the

1
As used herein, GAB refers to the Governments Answering Brief,
AOB to Appellants Opening Brief, ER to Appellants Excerpts of Record,
SER to Appellants Sealed Volume IV of the Excerpts of Record, FER to
Appellants Further Excerpts of Record, and CR to the Clerks Record from the
district court.

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statutory language indentifies. For example, the Governments reading would

prohibit religious organizations from proselytizing tithing because the church

obtains property from members, with their consent, induced by wrongful use of

fear of divine reprobation. See e.g., In re Lee, 162 B.R. 31, 32 (Bankr. N.D. Ga.

1993) (describing debtors belief that he was still morally obligated to tithe Church

despite his own bankruptcy). The Hobbs Act cannot have so broad a reach.

Under Branks reading (and the DOJ Manual), the fear used to prove Hobbs

Act extortion is limited to fear of physical or economic harm, which comports with

the rest of the statute. AOB 23-26. Thus, while the Government relies on United

States v. Culbert, 435 U.S. 371, 380 (1978), to argue a broader reading of the

Hobbs Act, GAB 23, it overlooks that three decades later, the Supreme Court

narrowed the Hobbs Act significantly when construing ambiguities in its text.

Scheidler v. Natl Org. for Women, Inc. (NOW II), 537 U.S. 393, 394 (2003).

The Supreme Courts decisions in NOW II and Scheidler v. Natl Org. for Women,

Inc. (NOW III), 547 U.S. 9 (2006) reflect a retreat from Culbert in favor of a

narrower construction. See also NOW III, 547 U.S. at 11 (Congress did not intend

the Hobbs Act to have so broad a reach.).

The Governments reliance on United States v. Campbell, 770 F.3d 556,

571-73 (7th Cir. 2014) and United States v. Pascucci, 943 F.2d 1032, 1035-36 (9th

Cir. 1991), see GAB 26-27, are similarly misplaced. In those cases, the theory of

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reputational harm was never challenged; rather, as the Government recognizes,

both those cases addressed the sufficiency of an interstate nexus, not fear of

reputational harm. GAB 27 n. 7. Moreover, in both cases, the defendant

threatened economic or physical harm in addition to reputational harm, so the

Government did not rely solely on reputational harm in either case. Campbell, 770

F.3d at 572 (threatening deportation in additional to reputational harm); Pascucci,

943 F.2d at 1039 n.1 (threatening a financial burden in additional to

embarrassment).

United States v. Nardello, 393 U.S. 286, 296 (1969), doesnt change the

analysis. Cf. GAB 25. Nardello addressed the Travel Act, not the Hobbs Act. Id.

at 287. Moreover, Brank does not argue that his conduct cannot be labeled

extortion in some context or jurisdictions; rather, he contends that his conduct, as

charged, was covered under 18 U.S.C. 875(d) (Count One) but not under the

Hobbs Act (Counts Two and Five).

2. The Government failed to present sufficient evidence that


interstate commerce was affected to support Counts Two and
Five.

a. Count Two ($500,000 wire and car).

The Government argues that because Brank stipulated the $500,000

traveled in interstate commerce, ER 401, he waived appeal on the issue of

whether interstate commerce was affected under the Hobbs Act. GAB 29. That

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argument compares apples to oranges. To establish a violation of the Hobbs Act

on Count Two, the Government was required to present sufficient evidence that

commerce from one state to another state was . . . affected in some way. ER 81

(emphasis added). The parties stipulation did not address, much less settle, that

issue. See also United States v. James, 987 F.2d 648, 651 (9th Cir. 1993).

The Government apparently recognizes that its waiver argument falls short,

so it then argues that it proved a direct effect on interstate commerce through three

pieces of evidence: (1) $500,000 in Burnss personal assets traveled interstate; (2)

the Audi bore Florida tags; and (3) some text messages were interstate. GAB 31.

This evidence is insufficient. The Governments wire transfer theory regarding

Burnss personal assets constitutes an indirect, not a direct, theory of jurisdictional

nexus. See AOB 28-31; see also United States v. Blair, 762 F. Supp. 1384, 1393

(N.D. Cal. 1991) (The court is unable to find a single case in which merely

withdrawing money from a bank to pay an extortion, without more, provides the

necessary nexus with interstate commerce under the Hobbs Act.). So too, the

cars Florida licensing did not directly affect interstate commerce: at the time of

the charged conduct, that personal property was parked in California, and Brank

retrieved it from a California residence. ER 397, 403; see also 18 U.S.C. 1951

(the collection and use of the car in California does not constitute the movement

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of any article or commodity in commerce). Likewise, the text messages did not

directly affect interstate commerce. See AOB 27-33.

The Governments cases further demonstrate the insufficient interstate

commercial nexus here. See GAB 31-33. In United States v. Huynh, 60 F.3d 1386

(9th Cir. 1995), the defendant extorted kickbacks of federal funds (supplemental

social security income) moving in interstate commerce by mail. Id. at 1389. The

personal assets at issue here do not have such an intrinsic connection to interstate

commerce. In United States v. Mitov, 460 F.3d 901, 908-09 (7th Cir. 2006), the

Seventh Circuit upheld the conviction under the Governments depletion-of-assets

theory where the extorted firm regularly purchased items from other states. Under

Lynch, the depletion-of-assets theory is an indirect effect. United States v. Lynch,

437 F.3d 902, 909 (9th Cir. 2006). So too, in Mitov, the Government demonstrated

that the extorted business regularly engaged in interstate commerce. Burns, by

contrast, is an individual, and the Government made no showing that he personally

engaged regularly in interstate commerce. In Temkin, the extortion plan would

have involved international travel, to kill the victim by poison. United States v.

Temkin, 797 F.3d 682, 690 (9th Cir. 2015). And in United States v. Kaplan, 171

F.3d 1351, 1355-56 (11th Cir. 1999), the plan also involved international travel: a

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coconspirator planned to travel from Florida to Panama to retrieve money. 2 Here,

none of the charged conduct involved a business engaged in commerce, or

involved Branks travel outside of California. See also United States v. Atcheson,

94 F.3d 1237, 1243 (9th Cir. 1996) (defendant made out-of-state trips to carry out

Hobbs Act robberies).

Because the Government did not demonstrate a direct effect on interstate

commerce, it was required to meet the indirect-effects test articulated in Lynch.

437 F.3d at 905. The Government asserts that it met the indirect-effects test by

showing the sum at stake is so large that there will be some cumulative effect on

interstate commerce. GAB 34 (quoting Lynch, 437 F.3d at 905). It then urges

2
The four-judge dissent properly cautions against the dangers of expanding
Hobbs Act jurisdiction, as urged here:

The majoritys holding will result in the federalization of any crime


involving extortion to acquire money. Plainly stated, [t]his is a case
about federalism. If we were to accept the governments position on
this issue, the Hobbs Act would completely subsume state extortion
and robbery laws by creating a federal criminal offense in each and
every case in which the pay-off is at all likely to cross state lines.
Surely, Congress cannot have intended any such result.

The plain and unambiguous language of the statute draws a distinction


between extortion that affects commerce and extortion that constitutes
or produces commerce. Although Congress has the power to
criminalize both types of extortion, the Hobbs Act addresses only the
former.

Kaplan, 171 F.3d at 1358 (Birch, J., dissenting) (internal citations and references
omitted).

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this Court to combine the sums charged in Counts Two and Five to show an

indirect cumulative effect on interstate commerce, GAB 35, when the jurisdictional

element must be met for each count separately. Moreover, considering Burnss

considerable personal wealth, neither the $500,000 and luxury car Burns owned,

nor the $1,000,000 contemplated (but never obtained) from Count Five, had any

effect on commerce.3 The Government essentially concedes the point when it

argues that the $500,000 payment depleted the assets available for Burnss

shipbuilding venture in Washington. GAB 35-36. But the Government presented

no evidence that Burnss ability to invest was affected in any way whatsoever. See

AOB 30-31. In sum, the Government failed to demonstrate an effect on interstate

commerce as required for Count Two.

b. Count Five ($1,000,000).

To support the jurisdictional nexus for the attempted extortion of $1 million

in Count Five, the Government urges that the jury could have inferred that (1)

Burns would have made an interstate transfer, (2) Burns could have otherwise used

the $1 million to either invest in the interstate shipbuilding company or for some

unspecified philanthropy, and (3) that the communications leading to the demand

3
The Court should not adopt the Eleventh Circuits test and permit the size
of the demand on personal assets to satisfy the interstate commerce nexus. See
United States v. Farrell, 877 F.2d 870 (11th Cir. 1989). In sum, that test has no
basis in the statutory text, and expands criminal liability by essentially deleting an
element of the crime. In any event, the size of the personal assets at issue here is
less than the amount found sufficient in Farrell.
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for $1 million were telecommunications crossing state lines. GAB 36. Its

argument is pure speculation. Moreover, the $1 million was entirely fictional,

arose in response to Burnss efforts to engineer a prosecution by beginning a

renegotiation over the car, and was guided at all times by the FBI. See AOB 13-

14. No money was going to be paid on Count Five, ever. Thus, the jury could not

have reasonably inferred that the $1 million demand would ever have been

fulfilled, much less fulfilled by interstate means.

In any case, the only reasonable conclusion the jury could have reached was

that Burns would have had to withdraw the cash in California and transport it

within California to Brank.

Nor was there any evidence that Burns would have invested the fictional $1

million in the shipbuilding business. Burns offered no testimony on that point.

Nor did there exist evidence from which the jury could have inferred Burns would

have donated the $1 million to interstate philanthropy. The Governments record

citations, see GAB 36, reflect Burnss testimony that he lived in Florida, ER 201,

and that exposure of his penchant for prostitutes could affect his standing in the

community, ER 169. The record offers no support for Burnss use of the $1

million for charity.

Last, the Governments argument that the jury could have inferred that the

demand of $1 million would be made through interstate telecommunications

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contradicts the record. When Burns received the communications that led to the

demand for $1 million, he was sitting with federal agents in Los Angeles. ER 161-

168. The record is clear that those communications underlying Count Five

occurred entirely within California. The Government thus failed to present

sufficient evidence of the jurisdictional nexus element of Count Five.

3. The Government failed to present sufficient evidence of an


unlawful conditional threat.

a. Counts Two and Five.

The Government argues that seven specific communications proved that

Brank induced Donald Burns to part with property by wrongful use of fear,

specifically by wrongful threat of reputational harm, see ER 77: (1) Branks text

that he could bring [Burnss] house down, (2) Branks post on his Twitter

account asking how many porn stars know a man named Don, (3) the subsequent

message to Burns directing him to the post, (5) Branks request for a Sweet treat...

that will make me erase my tweet, (6) Branks use of the terms extortion and

blackmail in his messages, and (7) Branks explicit request for a specified

amount of money. GAB 37-41. Careful review of this evidence proves the

Governments error.

First, the message that the Government identifies as a demand includes no

demand:

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[b]e wise on [h]ow you reply, I can bring your house down
Don. . . Dont get me mad. I do have a twitter and your photos.
Lies can be made or Maybe its the truth.

ER 496, Item 377. This communication is an admonishment, not a demand.

Simply put, in the midst of a heated exchange, Brank warned Burns to be careful of

his tone, as Brank was tired of Burnss bullying. A caustic warning by a spurned

ex-lover does not establish a demand.

As for the Twitter post asking, How many porn starts know a man named

Don, Yes Don[,] see ER 501, that conduct simply invited others to discuss

publicly their relationships with Burns. Moreover, it was a fait accompli.

Following that post, others may have joined the conversation, but that was up to

them. For the same reason, the message directing Burns to the Tweet similarly

warns but does not threaten:

Check my twitter, the conversation will grown [sic] and


questions will be asked. You lied to me and treated me like Shit
. . . Now its biting you in the ass.

ER 496. This again is an unconditional warning that Brank has taken steps to

expose Burnss illegality based on Burnss poor treatment of him. And while

Burns may have feared that others would chime in and discuss Burnss enjoyment

of prostitutes, those concerns do not change Branks action into a threat. Nor does

it turn that action into a demand.

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And to be clear, it is undisputed that Burns provided the car and $500,000 to

induce Brank to remove his lawful Tweet. Because posting the Tweet was entirely

lawful, Burnss decision to negotiate terms to convince Brank to delete it does not

amount to unlawful inducement by Brank.

The Government comes closest when it notes Branks text:

I think by the time Im out of the gym you will have a Sweet
treat for me that will make me erase my tweet.

ER 496; see also GAB 39. While the Government now claims that Brank was

referring to money, see GAB 39, thats not how Burns interpreted it. ER 388.

Moreover, when Burns asked Brank what he wanted, Brank rejected the notion of a

payoff: You got money, but I dont want that. ER 495. The Government never

addresses Branks initial and explicit refusal of payment. As Brank wrote, I only

wanted to drive the cars and Enjoy your company. ER 495. The Sweet treat

most likely was nonmonetary, such as spending time driving cars together or

otherwise spending time together. Or Brank could have simply wanted to continue

to taunt Burnswhich Brank was legally entitled to do. At bottom, it was Burns

who presented the option of a financial truncation to require Brank to do something

Brank had no obligation to do: delete his Tweet. ER 495.

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The Governments focus on Branks ambiguous use of the term black mail

doesnt change Branks conduct.4 And it ignores that in the same message Brank

rejects the notion of a payoff. ER 495 (You got money, but I dont want that.).

Likewise, the Governments out-of-context citation to the terms black mail and

extortion overlooks their obvious import: fear of false accusation or reprobation

from Burns. (How do I know you wont report me for extortion[?] ER 484,

Item 308; who want[s] to be friends with black mail, ER 485, Item 340). In any

case, nothing about Branks self-concern transforms his act of posting the Tweet

into a conditional threat.

The Government also urges a finding of unlawful inducement by Branks

communications following his receipt of $500,000 and the car:

I want to be happy and satisfied. Throw me another half a mill.


We will be done for sure. No more asking and taking. My
word and promise.

See GAB 40; ER 492. But again, Brank made no threat there; rather, he made a

naked request for additional funds so he could be happy and they both could be

done. Brank did not threaten any action if additional money is not provided, and

that text did not form the gravamen for any of the charges against him. In other

words, Count Two addressed the money and car Brank had received at the time of

this text exchange, and the negotiation for the $1 million charged in Count Five

4
Indeed, there can be no dispute that Brank did not commit blackmail in
violation of federal law. See 18 U.S.C. 873.
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arose later, after Burns began a renegotiationassisted by counselto obtain the

return of the Audi.

Even the Government acknowledges that Brank made no explicit conditional

threats. It instead argues that Brank implicitly indicated that without payment he

would expose the Victims conduct or the photographs. GAB 41 (emphasis

added). But that overstates the evidence and the Governments trial presentation.

In reality, the messages reflect that Brank alerted Burns to the Tweet, and

thereafter agreed to Burnss terms to remove it from Twitter. Most importantly,

Branks post to Twitter merely provided the opportunity for others to report on

Burns as they would.

At bottom, the Government argues that Burns paid Brank because he felt

he had no other choice to avoid the posting of embarrassing truths or lies which

undoubtedly would follow the tweet. GAB 41. But those posts would have come

from others, not Brank. Rather, Burns opted to pursue a financial solution to

persuade Brank to remove from social media a perfectly lawful Tweet. Indeed, as

our President-elect has demonstrated, posting on Twitter to motivate commercial

responses is entirely lawful, e.g.:

Toyota Motor said will build a new plant in Baja,


Mexico, to build Corolla cars for U.S. NO WAY! Build
plant in U.S. or pay big border tax.

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Boeing is building a brand new 747 Air Force One for


future presidents, but costs are out of control, more than
$4 billion. Cancel order!5

In sum, the trial evidence does not support a finding that Brank made a

conditional threat to induce payment from Burns. Rather, Brank took action, and

Burns then devised a plan to persuade Brank to take a different action which Brank

had every right to reject. As a result, the Government presented insufficient

evidence of unlawful inducement to support the convictions in Counts Two and

Five.

b. Counts One, Three, and Four.

The Government urges that there existed sufficient evidence to support the

finding that Brank threatened to injure Burnss reputation in Count One because

Branks messages were implicit threats to injure Burnss reputation. GAB 42.

But, as explained above, Brank did not make a wrongful threat that he would

expose Burns unless Burns paid him. Instead, Brank gave Burns a warning that he

was going to expose him, and then Brank proceeded to do so. Brank had every

right to expose Burnss illegal conduct, and Burnss plan to persuade Brank to

reverse course, and delete his Tweet, did not convert Branks actions into threats.

5
Toyota Tweet dated January 5, 2017:
https://twitter.com/realDonaldTrump/status/817071792711942145.

Boeing Tweet dated December 6, 2016:


https://twitter.com/realDonaldTrump/status/806134244384899072.

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Accordingly, this Court should vacate the conviction for Count One, as well as

reverse the convictions for Counts Three and Four, which are predicated on Count

One.

B. The district court should have dismissed the superseding indictment


based on prosecutorial vindictiveness.

1. Standard of review.

This court reviews Branks vindictive prosecution challenge de novo, and

not for clear error as respondent urges. See GAB 46. The district court erred in its

application of the law because it applied only the law on indirect evidence, and

never addressed Branks direct evidence. ER 14; see also AOB 39-41. Thus, the

issue on appeal turns upon a district courts proper application of the law, and

review is de novo. United States v. Kent, 649 F.3d 906, 912 (9th Cir. 2011).6

2. Brank demonstrated vindictive prosecution, and the Government


failed to rebut that showing.

The Government relies on United States v. Goodwin, 457 U.S. 368, 381

(1982) to advise caution when assessing vindictiveness in a pretrial setting. While

caution may be warranted, two key facts demonstrate why that caution does not

suffice to overcome Branks showing here. First, this case is unlike Goodwin,

where there [was] no evidence in this case that could give rise to a claim of actual

6
Contrary to the Governments assessment, see GAB 40, Mr. Branks
challenge in the district court alleged actual vindictiveness by Government
counsel. See CR 62.

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vindictiveness; the prosecutor never suggested that the charge was brought to

influence the respondents conduct. 457 U.S. at 380-81. But the opposite is true

here, where Brank presented direct evidence of actual vindictiveness, viz., the

prosecutor told defense counsel that additional charges would be brought unless

Brank waived his right to speedy trial and his counsel joined in a continuance. See

ER 525; AOB 40. The Government does not dispute that evidence at all. Instead,

it contends that when it made that unconstitutional threat, it had already finalized

which additional charges would be brought.7 GAB 44, 50. This is not a sufficient

answer.

The Government then claims that it could not have based the additional

charges on improper motivations because it advised the district court, one week

after the initial indictment issued, that it continued investigate potential conspiracy

charges. GAB 51. But as Brank has demonstrated, the additional charges neither

added conspiracy charges nor alleged co-conspirators, and all the facts underlying

the additional charges were known to the Government at the time of the original

indictment. AOB 41. The Governments additional investigation thus could not,

as a matter of fact, have provided the basis for the additional charges. The

7
Even assuming the additional charges were finalized before the phone call,
the Government still could have filed them vindictively: the Government wanted to
secure a continuance against Branks right to speedy trial and could have used the
additional charges to compel defense counsel to seek a continuance without asking
defense counsel for a continuance directly.
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Government then tries to evade that truth by asserting that the prosecutor may,

nevertheless, still have been assessing and analyzing additional charges. GAB 51.

But the timing of the prosecutors action in this case is critical. Goodwin, 457

U.S. at 381. The superseding indictment issued a mere 13 days before the

scheduled trial, and immediately following Branks refusal to waive his speedy

trial rights. AOB 40. In sum, Branks adamancy in fighting the caseand only

Branks adamancy in fighting the caseled the Government to up the ante. The

Constitution forbids such conduct.

Nor did the Governments threat come during the give-and-take of plea

negotiations, as the Government also urges. See Bordenkircher v. Hayes, 434 U.S.

357, 363 (1978); cf. GAB 48 n.9. In this case, the parties agreed that the

Government rejected Branks proposal, and the Government never countered with

any plea offer. At the time the Government acted, there was no plea agreement for

Brank to accept or reject, and the Government presents none to this Court now.

Bordenkircher exempted from findings of presumed vindictiveness threats made

in the give-and-take of plea bargaining [because] there is no such element of

punishment or retaliation so long as the accused is free to accept or reject the

prosecutions offer. Bordenkircher, 434 U.S. at 363 (emphasis added).

Here, there was no offer for Brank to accept or reject. Rather, the

Government conditioned its threat on a requirement that Brank waive his speedy

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trial rights as a precondition to entering plea negotiations. See CR 62. The record

could not be plainer: the vindictive causation occurred outside of any plea

negotiations.

Without saying so directly, the Government essentially asks the Court to

ignore this limitation of Bordenkircher, and to make any pretrial threat immune

from vindictiveness challenges. But that is precisely what Goodwin forbids, 457

U.S. at 372, and falls expressly outside of the narrow exception carved out by

Bordenkircher. Because the Government was not negotiating with Brank, and had

not tendered any offer for him to accept or reject, and instead filed a Superseding

Indictment to punish his refusal to agree to a trial continuance, the additional

charges violated Branks Due Process rights.

C. The district court erred in admitting the ammunition clip and testimony
about the gun.

1. The district court erred in finding that the testimony about the
gun and ammunition was attenuated from the gun itself.

The Government agrees that the attenuation issue is assessed under the

factors identified in United States v. Ceccolini, 435 U.S. 268 (1978). GAB 53-54.

But the district court made no reference to Ceccolini and failed to conduct an

analysis under the five-factor test. SER 597-603. Instead, the district court relied

on United States v. Ramos, 42 F.3d 1160 (8th Cir. 1994) and United States v.

Richard, 994 F.2d 244 (5th Cir. 1993), SER 600, out-of-circuit cases that address

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the separate issue of voluntariness of a consent to search. The district courts

analysis was based on whether law enforcement acted in good faith and with

reasonable belief, and on the flagrancy of the official conduct. SER 600-02.

None of these constitute relevant factors under Ceccolini. This error of law itself

presents an abuse of discretion. See United States v. Decinces, 808 F.3d 785, 789

(9th Cir. 2015).

As for the Ceccolini analysis, the Government relies almost entirely on the

first one, viz., whether Yim testified of his own free will or was induced by official

authority as a result of the illegality. GAB 55-57. But that misses the key point,

viz., that Yim consented to the search only after federal agents removed him

from the car, handcuffed him, and swept the car. ER 506.8 So too, it is undisputed

the Yim testified pursuant to a cooperation plea agreement that was necessarily

induced by official authority as a result of [the Governments] discovery of the

[gun]. Ceccolini, 435 U.S. at 279.

In addition, the other Ceccolini factors show that Yims testimony was not

attenuated from the illegality: the illegally seized evidence was present during the

initial encounter with Yim and substantial time did not elapse between the time of

8
Moreover, even the Government realized that Yims consent was not
voluntary: it did not rely on his consent to argue for the admission of the gun itself.
ER 507. The Governments tacit pretrial acknowledgment that Yims consent to
search was involuntary significantly undermines its current position that Yims
testimony was attenuated from the illegal search.
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the illegality and the initial contact with Yim. (So too, the Government touted its

continued investigation of conspiracy charges in the run up to trial; Yim was

plainly the target of those charges.) In sum, Yims testimony about the gun is

inextricably linked to the illegal search for and seizure of the gun.

Perhaps recognizing the strength of Branks claim, the Government argues

in the alternative that the district court properly admitted the testimony under the

inevitable discovery doctrine. GAB 58-59; SER 603-04. But that argument falls

short because [t]he inevitable discovery exception does not apply when officers

have probable cause to apply for a warrant but simply fail to do so. . . . [A]llowing

the government to claim admissibility under the inevitable discovery doctrine

when officers have probable cause to obtain a warrant but fail to do so would

encourage officers never to bother to obtain a warrant. United States v. Lundin,

817 F.3d 1151, 1161-62 (9th Cir. 2016); see also United States v. Reilly, 224 F.3d

986 (9th Cir. 2000).

In Reilly, police officers sought a defendants consent to search after he had

requested an attorney. 224 F.3d at 995. The district court applied the inevitable

discovery doctrine to admit evidence recovered during the search because the court

found that even if the defendant had denied the consent, police would have

obtained a search warrant and conducted the search anyway. Id. This Court

reversed, finding clear error in applying the inevitable discovery doctrine based

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on the agents actual but unexercised opportunity to secure a search warrant. Id.

For the same reasons, the Court should reject the Governments speculation that

Yim would have consented to questioning and confessed the gun even if the agents

had not illegally searched the backpack. Had he not been confronted with the

illegally seized gun, Yim likely would not have offered information about the gun,

ammunition, or Williams. Yim certainty had an incentive to omit his connection to

the events, including his role in securing a firearm. The record does not support

the conclusion Yim would have inculpated himself and confessed the gun in the

absence of the Governments unlawful search.

2. The gun and ammunition evidence was not inextricably


intertwined with the alleged extortion.

The Government also urges that the gun and ammunition were inextricably

intertwined with the charged offenses and therefore exempt from Rule 404(b)s

prohibition on other act evidence. GAB 59. Here, unlike in United States v.

Dorsey, 677 F.3d 944, 951 (9th Cir. 2012), there is no question as to whether

Brank had the means to commit the charged offenses or of his identity. GAB 50.

And the gun and ammunition remained in the car and were never used by Brank

for any purpose during the meeting at the Starbucks. No person saw the gun, no

person was threatened with the gun, and no person was informed of the guns

existence. As a result, this prejudicial evidence was never a part of the

transaction that serves as the basis for the criminal charge, or needed to permit

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the prosecutor to offer a coherent and comprehensible story regarding the

commission of the crime. See id. at 951. Exclusion of the gun would not have

affected the Governments arguments in any meaningful way.

As the district court correctly found:

Its not unlawful, per se, to own a gun, and the Government has
presented no evidence that the defendant threatened to use a
gun in connection with the extortion or that the possession of
his -- of a gun was illegal.

ER 511. Against that truth, the district court erred in finding the testimony about

the gun and ammunition was inextricably intertwined with the charged conduct.

Moreover, the manner in which this evidence was used at trial exacerbated

the error[.] United States v. Philibert, 947 F.2d 1467, 1471 (11th Cir. 1991).

Philibert held that the district court erroneously admitted evidence of a weapon

under Rule 404(b) and the error deprived appellant of a fair trial because of the

dramatic display of the weapon at trial. Id. Here, admitting the gun similarly

deprived Brank of a fair trial because the prosecutions presentation of the

evidence suggested that Brank would engage in a shootout in a public place that

could injure innocent bystanders. ER 137-141, 324.

3. The district court abused its discretion under Rule 403.

The Governments claim that the gun evidence showed that Burns did not

make the payments voluntarily, and that Brank knew he didnt have a right to the

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money, see GAB 61-63, makes little sense. The gun evidence had no probative

value as to Burnss state of mind because he knew nothing about it. And the sole

evidence presented about the guns purpose addressed a fear that Burns would

hurt Brank. ER 234-35. Even then, the gun remained in a zipped bag in the car,

and was not brought to the meet. The probative value of the gun was thus non-

existent.

And the record contradicts the Governments claim that it didnt use the gun

evidence in a substantially prejudicial manner. The prosecution emphasized that

Brank could have shot innocent bystanders, ER 324, and argued in closing that

Brank intended to start shooting if others did. ER 137, 141. This dramatic form

of proof, portraying Brank as dangerous and prone to violence, increased the

prejudice with little gain in probative value. Its admission was thus an abuse of

discretion.

4. The evidentiary error warrants reversal.

The Government urges that even if the district court erred in admitting

testimonial evidence on the gun, the error was harmless because evidence against

Brank was overwhelming. GAB 63-64. The Government overstates its case,

and on this record, the Government cannot establish that it is more probable than

not that the error did not materially affect the verdict. See United States v.

Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005) (quoting United States v.

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Morales, 108 F.3d 1031, 1040 (9th Cir. 1997)) (internal quotations omitted); see

also United States v. Merino-Balderrama, 146 F.3d 758, 763 (9th Cir. 1998).

Moreover, the prejudicial impact of the erroneous admission of the gun

evidence was then compounded by the lack of limiting instruction, ER 63-90,

despite the defenses request, CR 256 at 6. See United States v. Gilley, 836 F.2d

1206 (9th Cir. 1988) (emphasizing importance of limiting instruction, which had

been provided twice).

5. The erroneous admission of the ammunition clip warrants


reversal.

The Government tries to balkanize the admission of the ammunition clip

from the testimonial gun evidence to avoid addressing the substantial prejudice

resulting from the courts error in admitting both. See GAB 65. But the same

district court error, see ER 238, permitted admitting evidence of both the

ammunition clip and the gun, so their prejudicial effect must be analyzed together.

Even if this Court finds that admitting the ammunition clip was separate from the

testimonial gun evidence, the cumulative prejudice of the errors supports reversal.

See United States v. Green, 648 F.2d 587, 597 (9th Cir. 1981).

Contrary to the Governments assertions, see GAB 65, the assault rifle clip

had absolutely no probative value: it was not even brought to Starbucks and was

left behind in Branks apartment. ER 238. And even accepting Yims testimony,

Brank and Yim requested only the revolver; there is no evidence that they knew

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Williams would give them the assault rifle clip. See ER 235-36; ER 277. The

assault rifle clip cannot go to show Branks intent because there is no evidence that

he was aware that Williams maintained it in the bag with the revolver.

So too, the Government elicited that the agents were prepared for Brank to

commit a mass shooting in public where innocent bystanders would be hurt, ER

324, and presented a sinister photograph of an assault-rifle clip and testimonial

evidence that Brank brought a firearm to the meeting. See FER 1-2. In the

absence of the guidance of a limiting instruction, the jury was invited to let their

imaginations run wild and speculate as to why the firearms themselves were not

produced and reach the conclusion that Brank was a dangerous and violent person

with access to assault weaponry. The Government has not met its burden to show

harmlessness of the evidentiary error, warranting reversal.

D. The district court erred at sentencing.

The Government argues that the evidence supports the district courts

decision not to group the counts because the attempted extortion of $1 million

(Counts Five and Six) involved a separate instance[] of fear and risk of harm, not

one composite harm under Application Note 4, U.S.S.G. 3D1.2(b). GAB 66. In

so doing, it ignores the key fact Brank relies upon: that the fear and risk of harm

were continuous throughout the three-week period, viz., the same fear of exposure.

After Burns provided the car and $500,000 wire to Brank, Burns attempted to

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negotiate the return of the car, offering more money, logically tying the later $1

million cash offer to the car and $500,000 wire. AOB 54. During this period, the

car registration issue remained live, even after Brank picked up the car and Burns

wired the $500,000. ER 492-93. Burns scheduled the transfer of title with the $1

million payment. ER 487. Thus, Burnss fear remained one and the same

throughout this episode, and was linked to the transfer-of-title issue itself.

Moreover, Burns not only knew that negotiations were ongoing, he

instigated a renegotiation (with the assistance of counsel), ostensibly to obtain the

car, but really to secure Branks arrest. Whatever Burnss fears were, they never

abated, not even after Brank picked up the car and $500,000 wire. Rather, any fear

of exposure arose from a single course of conduct and communications between

him and Brank. Thus, unlike a second unforeseen robbery as described in the

application note, here only a single harm was presented: exposure of Burnss

illegal activities.

The out-of-circuit cases upon which the Government relies are

distinguishable. In United States v. Bonner, 85 F.3d 522 (11th Cir. 1996), the

court found grouping was not required because each separate threatening

communication, a crime in itself, had a single purpose or objective and inflicted

one composite harm: to harass the victim. Id. at 526. Thats not the case here.

Rather, the circumstances in this case are like those in United States v. Norman,

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951 F.2d 1182 (10th Cir. 1991), where the court concluded that grouping was

required where there was only one course of conduct (making false reports to [an

airline]), only one criminal objective (to harm [ex-wifes suitor]), and only one

composite harm to one victim (subjecting [ex wifes suitor] to arrest). Id. at 1186.

Here too, there was only one of course of conduct (communicating with Burns),

only one criminal objective (to expose an ex-lover), and only one composite harm

to one victim (to expose the illegal activity of an ex-lover).

In United States v. Miller, 993 F.2d 16 (2d Cir. 1993), the Second Circuit

found no error in the district courts refusal to group the defendants three racist,

threatening letters and the finding that each letter inflicted separate psychological

harm. Id. at 21. Here, however, each of Branks communications did not hold

the separate intent to inflict separate psychological harm on Burns, but rather were

part of the common scheme (to receive payments from Burns) and composite harm

(to expose Burnss illegality).

Last, the Government is incorrect that this error is not plain. Both the

Sentencing Guidelines and this Courts precedent are clear: [a]ll counts involving

substantially the same harm shall be grouped together into a single Group. United

States v. Tank, 200 F.3d 627, 632-33 (9th Cir. 2000). It is that standard the district

court incorrectly applied.

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In addition, United States v. Buenrostro-Torres, 24 F.3d 1173, 1176 (9th

Cir. 1994) presents clearly established law demonstrating the district courts

erroneous construction of U.S.S.G. 3D1.2(d):

[U]nder the case-by-case approach[,] 3D1.2(d) mandates that


the counts be grouped. . . . When the offense level is
determined largely on the basis of the total amount of harm or
loss, the quantity of a substance involved, or some other
measure of aggregate harm, or if the offense behavior is
ongoing or continuous in nature and the offense guideline is
written to cover such behavior.

Buenrostro-Torres, 24 F.3d at 1176 (quoting U.S.S.G. 3D1.2(d) (emphasis

omitted). Here, the district court should have taken the case-by-case approach

and found the offense behavior continuous in nature: it involved continuous

negotiations for payments over a three-week period. Because the offense guideline

(U.S.S.G. 2B3.3, see PSR 9) is written to cover behavior subject to grouping,

viz., offense levels are adjusted by the amounts, the counts necessarily grouped.

Indeed, separating the count groups based on amount duplicates (and unfairly so)

the enhancing effect of U.S.S.G. 2B3.3(b)(1).

For these reasons, and because the Government waives any challenge to the

other prongs of the plain error test, the Court should find that the district court

plainly erred in failing to group the counts and should remand for resentencing.

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II. CONCLUSION

For the reasons set forth above and in the opening brief, the Court should

enter judgments of acquittal on Counts One, Two, and Five, and also on Counts

Three, Four, and Six, which are predicated on the extortion counts. If not, the

Court should dismiss all counts except for Count One based on the Governments

vindictive charging decisions, and then vacate any counts that survive Rule 29

based on the erroneous admission of the gun evidence. At a minimum, the Court

should remand for resentencing upon a proper calculation of the Sentencing

Guidelines.

Respectfully submitted,

DATED: January 11, 2017 COLEMAN & BALOGH LLP

/s/ E A Balogh
By: ETHAN A. BALOGH
235 Montgomery Street, Suite 1070
San Francisco, CA 94104
Direct: 415.391.0441

Attorneys for Defendant/Appellant


TEOFIL BRANK

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CERTIFICATE OF COMPLIANCE

In accordance with Federal Rule of Appellate Procedure 32 and Ninth

Circuit Rule 32-1, the attached Opening/Answering/Reply Brief:

Is proportionately spaced, has a typeface of 14 points or more, and


contains 6,814 words.

/s/ E A Balogh
Dated: January 11, 2017 ETHAN A. BALOGH
Case: 15-50467, 01/11/2017, ID: 10262947, DktEntry: 38, Page 37 of 37

PROOF OF SERVICE

I, Ethan A. Balogh, certify that on the date set forth below, I caused to be

filed electronically a copy of Appellant Teofil Branks Reply Brief with the Clerk

of the Court for the United States Court of Appeals for the Ninth Circuit by using

the appellate CM/ECF system, and that all parties to whom I am required to

provide service are registered CM/ECF users, and that service of the brief will be

accomplished by the appellate CM/ECF system.

/s/ E A Balogh
Dated: January 11, 2017 ETHAN A. BALOGH