Former Gay Porn Star Asks Ninth Circuit to Reverse Extortion Conviction

LOS ANGELES (CN) – A former gay porn star fought Thursday to have the Ninth Circuit overturn his conviction for attempting to extort $1.5 million from a Florida tech tycoon who paid him for referring other actors for group sex parties.

Teofil Brank, who performed under the stage name Jarec Wentworth, had thousands of Twitter followers when in early 2015 he posted a cryptic tweet: “How many porn stars know a man named Don? Yes Don.”

When Brank sent the tweet to his followers on Feb. 16, 2015, he was texting with businessman and Republican political donor Donald Burns, the chairman of internet phone company MagicJack VocalTec.

At the time, Burns was reeling in a shipyard in Vancouver, Washington, after receiving a series of threatening texts from Brank.

Burns had known Brank for about two years and had hired him for a pay-for-sex referral scheme that included several escorts and actors who worked at gay porn studio Sean Cody. Burns paid the men between $1500 and $2500 for each sexual encounter. Under the referral arrangement with Brank, Burns agreed to pay him $2000 for each porn star he delivered. But the relationship soured when a meeting with an escort fell through at the last minute, and Brank refused to return his referral fee. Burns then decided to end their business relationship.

In his text messages, Brank demanded $500,000 and an Audi R8 sports car to take down the tweet. Burns agreed, and Brank took down the tweet but then tried to extort an additional $1 million. By that time, Burns had hired a forensic investigator and informed law enforcement in Los Angeles.

Brank was arrested later at an FBI sting at an El Segundo Starbucks near LAX where he had gone to collect the $1 million and the title to the Audi from an undercover agent posing as Burns’ business associate. Brank had traveled to the meeting with his friend Etienne Yim from San Diego, who had waited in a pickup in the parking lot with a revolver. Fearing a setup, Brank had told Yim to use the gun if anyone shot at them. Yim later surrendered to the authorities after an FBI agent approached him.

After a three-day trial in July 2015, a 12-member jury found Brank guilty of making criminal threats, extortion, receiving the proceeds of extortion, and using an interstate facility for unlawful activity. During the trial, jurors heard how Burns had flown actors down to his Nantucket and Palm Beach residences for group sex and then sent them home with envelopes full of cash.

At a hearing at the Richard H. Chambers U.S. Court of Appeals in Pasadena on Thursday, Brank’s attorney Ethan Balogh asked the court to acquit Brank, order a new trial or vacate his sentence.

Balogh argued that the government had failed to prove that Brank had committed extortion with his tweet. Instead, he said Burns had offered to pay the escort and porn star to remove the post in exchange for the sports car and $500,000.

“He was afraid of others joining the conversation, others retweeting it, others favoriting it, things getting out of hand,” Balogh said. “But that’s not Brank threatening action. He took an act and identified what’s likely to occur, what could occur. But his activity is over, and he got paid all that money and took that car to take down a tweet. And that is lawful.”

Burns testified during the trial that he had feared the tweet would harm his reputation if the post was disseminated more widely on the internet. But Balogh said fear of a damaged reputation was not enough to support the government’s charge of Hobbs Act extortion.

The Hobbs Act prohibits extortion affecting interstate or foreign commerce.

“No court to date has validated the government’s theory in this case, that reputational harm is enough, that fear of damage to reputational harm would support a Hobbs Act prosecution,” Balogh said.

Assistant U.S. Attorney Eddie Jauregui argued that extortion under the statute was not limited to fear of physical injury or economic harm, as Balogh asserted.

“Is it your position – it has to be doesn’t it – that you can have wrongful use of actual, threatened force, violence, fear, and that these are three separate things?” asked panel member U.S. District Judge Terrence Berg.

“That’s right, and Mr. Balogh is right that there is no case holding specifically that threat to reputation is encompassed by the Hobbs Act – but of course there have been numerous cases including in this circuit where the threats were not having to do with economic injury or property,” the prosecutor said.

He said there was enough evidence for the jury to conclude that Brank had induced Burns to pay the $500,000 and the sports car that Brank picked up from Burns’ glass mansion in La Jolla.

“I don’t think it’s right or fair to focus on one tweet,” Jauregui said. “And I also don’t think it’s correct to minimize the tweets that came before Brank posts this ‘Does anybody know Don’ on Twitter.”

In one text message, Brank wrote: “I can bring your house down Don. This was a simple conversation and you throw this Shit out on me. Don’t get me mad. I do have a twitter and your photos. Lies can be made or Maybe it’s the truth. Just saying. Have a good day.”

In another text he added: “You promised me you would Let me drive the r8. Cars are my life you know that. Show Im [sic] Nothing to you. Promises broken. I’m feeling evil right now. Disappointed.”

“All of that I think is enough for the jury to say ‘What’s going on here is that he is trying to induce him to part with property,’” Jauregui said.

Balogh did not deny that Burns was afraid. But he argued Brank did not threaten any future action after posting on Twitter.

“This guy had genuine fear. A captain of industry flying prostitutes around to orgies on a plane interstate. That’s some bad news,” Balogh said.

U.S. Circuit Judges Stephen Reinhardt and Alex Kozinski joined Berg on the panel.

Brank is currently serving his 70-month prison sentence in Victorville, California.

 

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