                                                                             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                            NOT FOR PUBLICATION                              APR 11 2014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


                                           4
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




                                           5
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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