PASADENA, Calif. (CN) – The Ninth Circuit on Tuesday affirmed a gay porn actor’s conviction for blackmailing a Florida tech tycoon, ruling that fear of repetitional harm supported the government’s federal extortion charges.
Teofil Brank was a popular porn actor performing under the stage name Jarec Wentworth when in early 2015 he demanded $1 million from Donald Burns, the chairman of internet phone company MagicJack VocalTec.
By that time, Burns had already parted with a flashy Audi R8 sports car and $500,000, fearing that Brank would reveal to his thousands of Twitter followers that he had been paying the actor thousands of dollars to procure male prostitutes and other porn actors for sex.
The two men ostensibly had a falling out after Brank failed to return a referral fee for a date that never materialized. In early 2015, Brank sent Burns a series of threatening text messages while he was doing business at a shipyard in Vancouver, Washington.
In one message sent from his Samsung phone 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.”
He later posted a cryptic tweet in February 2015 that stated: “How many porn stars know a man named Don? Yes Don.”
Fearing Brank would reveal details of his pay-for-sex scheme and trysts, Burns begged Brank to take the tweet down. Brank agreed, in exchange for the sports car and $500,000. He later asked for an additional $1 million from Burns and the title to the vehicle.
In the meantime, Burns hired a forensic investigator and was sitting at the FBI's offices in Los Angeles as Brank made his final demand.
In early March 2015, the FBI arrested Brank during a takedown at an El Segundo Starbucks near LAX where he met with an undercover agent posing as Burns’ business associate.
Brank had traveled to the meeting from San Diego with his friend Etienne Yim. Yim waited in his car in the parking lot with a gun nearby. Fearing a setup, Brank told Yim to use the gun if anyone shot at them.
Yim later surrendered to the authorities after an FBI agent approached him. The court sentenced him to a year of probation and 100 days community service after he cooperated with prosecutors, but in 2016 he was ordered to serve four months in prison for violating the terms of his probation by using marijuana and cocaine.
Prosecutors did not charge Burns though he admitted at trial that he had paid the actors and escorts for sex.
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 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 this past June, Brank’s attorney Ethan Balogh asked the court to acquit Brank, order a new trial or vacate his sentence.
Balogh argued the government 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 cash, which Burns wired to Brank’s bank account. Balogh said fear of injury to reputation was not enough to support the government’s charge under the Hobbs Act, and that only fear of physical violence or economic harm establish extortion under the federal law.
The Ninth Circuit on Tuesday affirmed Brank’s conviction, writing the Hobbs Act argument was “not well taken” and that the government had done enough to establish evidence of Brank's threats.
“Extortion under the Hobbs Act is defined as '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,’” the panel wrote in the 5-page unpublished memorandum. “That is precisely what occurred here; Brank obtained Burns' property, inducing Burns to part with it through wrongful use of fear that Burns' private life would be exposed.”
Brank argued the trial judge, U.S. District Judge John Walter, had improperly allowed prosecutors to admit witness testimony about the gun, and showed jurors a photograph of an ammo clip. At a pretrial hearing, Walter had dismissed a charge against Brank based on the presence of the gun in the car. Brank argued that evidence of the weapon should be suppressed but Walter found that it was admissible and did not prejudice the defense.
The panel rejected that argument, finding Walter was right to allow the government to admit the evidence.
Brank also argued prosecutors had vindictively filed six additional counts because he had exercised his right to a speedy trial and refused to delay his trial date. The panel disagreed and also ruled that the court had used the correct calculation of sentencing guidelines to sentence him to almost six years in federal prison.
Circuit Judge Stephen Reinhardt concurred in part and dissented in part. He said that he “strongly” disagreed with the majority's opinion on Hobbs Act extortion and said the court should have overturned Brank's convictions under the act.
“The Hobbs Act was not intended to, and does not, encompass injury, or threatened injury, to reputation,” Reinhardt wrote.
Judge Terrence Berg, sitting by designation from Eastern District of Michigan, and Circuit Judge Andrew Hurwitz joined Reinhardt on the panel.
Brank is currently serving his 70-month prison sentence in Victorville, California.
In an email, Brank, who maintains that he is innocent, wrote that he would seek a full court hearing at the Ninth Circuit and, failing that, would appeal to the U.S. Supreme Court. He asserted that the outcome would have been different if Circuit Judge Alex Kozinski, who retired amid sexual harassment allegations late last year, had remained on the three-judge panel. Brank argued that like Reinhardt, Kozinksi would have reversed his Hobbs Act convictions.
"I never give up. I'm a fighter and I will prove my innocence in the end," Brank wrote.
U.S. Attorney Central District of California spokesman Thom Mrozek said his office is pleased with the court's ruling.
Balogh did not respond to a request for comment.
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