Monday, April 14, 2014
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Ninth Circuit Upholds Conviction of Suspended Valley Attorney
Erroneous Jury Instruction Held Harmless in Case Involving Extortion, Obstructing Justice
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday upheld a suspended West Hills attorney’s conviction and three-year sentence on federal extortion and obstruction-of-justice charges.
The panel rejected Alfred Nash Villalobos’ claim that he should have been allowed to present a claim-of-right defense, while holding that a jury instruction defining extortion was erroneous, but harmless, because there was no doubt the defendant would have been convicted under an accurate definition.
Villalobos, 48, was convicted in 2011 of having accepted a $50,000 cash payment after promising that a client would lie to authorities conducting a federal grand jury investigation.
The grand jury was probing allegations that Rabbi Amitai Yemeni was helping aliens obtain visas on the false premise they would be employed by the Chabad Israel Center, where the rabbi was director. The aliens would allegedly be paid as if they were working at the center, but would allegedly return the money to the rabbi.
Villalobos represented Avraham Anjel, the husband of one of the aliens. Anjel retained Villalobos to get back money that was allegedly paid to Anjel’s wife Orit, turned over to Anjel, then given back to Yemeni, from whom Anjel sought to recover it.
The evidence presented at trial established that Villalobos agreed to an Aug. 4, 2009 meeting at a Century City law firm and at the meeting received $50,000 in cash, which was to be the first installment of a $107,000 bribe.
Cooperating Lawyer
The bribe was paid by Benjamin Gluck, an attorney who represented the rabbi and who was cooperating with authorities. Villalobos said he also wanted the rabbi’s organization to provide him with phony receipts for donations, and to provide Orit Anjel with a job or a job recommendation.
During a series of communications between Villalobos and Gluck, according to testimony, Villalobos proposed a plan in which he would instruct Orit Anjel to provide false testimony that would benefit the rabbi.
Villalobos explained that Orit Anjel would be coached to make false statements during an interview with a federal prosecutor, and he “guaranteed” that she would provide testimony consistent with that interview during later contemplated grand jury testimony.
Gluck reported Villalobos’ proposed scheme to the FBI, and made recordings of his conversations with Villalobos, who was arrested after Gluck gave him the $50,000, shortly before Orit Anjel’s scheduled meeting with the prosecutor.
Villalobos was found guilty of one count of attempted extortion and one count of endeavoring to obstruct justice, after a five-day jury trial before Chief U.S. District Judge George H. King. On appeal, the defense argued that King gave an erroneous instruction defining the extortion offense under the Hobbs Act, and in denying Villalobos the right to present a claim-of-right defense based on his assertion that the sole purpose of his interactions with Gluck was to get back money that rightfully belonged to the Anjels.
Extortion Explained
To convict a defendant of extortion under the Hobbs Act, Judge Milan D. Smith Jr. explained for the Ninth Circuit, the prosecution must prove the defendant obtained property through the “wrongful” use of force or threats, or under color of law
King’s explanation of what makes a threat to testify or cooperate with prosecutors “wrongful”—that the threat was made “with the intent to induce or take advantage of fear”—was erroneous, Smith said, because it would “necessarily lead a jury to conclude that all threats are wrongful” and thus “essentially read the ‘wrongful’ element out of the Hobbs Act.”
While any threat of violence would be wrongful, Smith reasoned, the wrongfulness of a threat of nonviolent action must be evaluated under the circumstances. But the error makes no difference in Villalobos’ case, because there is no dispute that a lawyer’s threat to coach a client to lie or to withhold the truth is wrongful, the judge explained, and the jury implicitly found that Villalobos made such a threat by finding him guilty on the obstruction count, the jurist said.
As for the closely-related claim-of-right issue, Smith said it was unnecessary for the panel to consider whether such a defense could be presented in the context of the case, because it “would do nothing to shield Villalobos from conviction of attempted extortion.”
Separate Concurrence
Judge William A. Fletcher concurred in the opinion, while Judge Paul Watford concurred separately.
Watford said he would affirm on the ground that even if Villalobos believed Orit Anjel was an innocent victim of wage theft, he could not have believed that he was right to assist her in lying about, or covering up her involvement in, immigration fraud.
“As applied to the facts of this case, in which no nexus existed between the threat and the property demanded, [King’s instruction on wrongfulness] was an accurate statement of the law,” the judge wrote.
Villalobos is currently serving his sentence at the medium-security federal institution in Victorville, and is due to be released in December, according to prison records,
The attorney, who was placed on interim suspension following his conviction, had been previously suspended three times.
He was suspended in 2004 for one year, stayed, and placed on one year of probation with an actual 30-day suspension after he stipulated that he failed to maintain client funds in a trust account, communicate with a client, or promptly pay out client funds.
Villalobos was suspended again in 2006 for failing to pass the professional responsibility exam, as required by the 2004 disciplinary order, and again in 2007 for failing to pay his bar dues.
He was also placed on administrative inactive status, while incarcerated, for not taking MCLE classes.
The case was argued on appeal by Rebecca P. Jones for the defendant and Assistant U.S. Attorney Mark R. Yohalem for the prosecution.
The case is United States v. Villalobos, 12-50300.
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