U.S. v. Verbitskaya, No. 03-11870.

• Decision Date: 21 April 2005
• Docket Number: No. 03-11870.
• Citation: 406 F.3d 1324
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vika VERBITSKAYA, a.k.a. Victoria Verbitsky a.k.a. Vika Rounick a.k.a. Victoria Pakuk, Alexander Verbitsky, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

406 F.3d 1324

UNITED STATES of America, Plaintiff-Appellee, v. Vika VERBITSKAYA, a.k.a. Victoria Verbitsky a.k.a. Vika Rounick a.k.a. Victoria Pakuk, Alexander Verbitsky, Defendants-Appellants.

No. 03-11870.

United States Court of Appeals, Eleventh Circuit.

April 21, 2005.

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G. Richard Strafer, G. Richard Strafer, P.A., Miami, FL, Kevin Michael Schad, Schad & Cook, Indian Springs, OH, for Defendants-Appellants.

Anne R. Schulz, Susan Rhee Osborne, Kathleen M. Salyer, Miami, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before BIRCH, KRAVITCH and CUDAHY^*, Circuit Judges.

KRAVITCH, Circuit Judge:

Vika Verbitskaya and Alexander Verbitsky appeal their convictions and sentences for conspiracy to obstruct, delay and affect interstate and foreign commerce by extortion in violation of 18 U.S.C. § 1951(a) ("The Hobbs Act") and for unlawfully obstructing, delaying and affecting interstate and foreign commerce by extortion in violation of 18 U.S.C. § 1951(a) & (b)(2).

I.

The relevant facts and procedural history are as follows. Stanislov Khazanov notified the Federal Bureau of Investigation ("FBI") in October of 2000 that he was being extorted by his former girlfriend Vika Verbitskaya. Khazanov, a Russian immigrant now living in Florida, had received a settlement of approximately $1,000,000 from two out-of-state insurance companies¹ following the tragic death of his wife Anna, who was killed in an automobile accident on November 15, 1999. After he paid lawyers' fees and set up a trust fund for his daughter, $250,000 remained. He used a portion of the settlement to incorporate Glamour International Productions.² Khazanov also possessed twenty-seven paintings that his mother had transported from Russia, which he intended to use to open an art gallery where he would sell Russian artwork.

Verbitskaya had lived with Khazanov from May or June of 2000 through September of 2000, when the relationship ended. During that time, Verbitskaya became aware of Khazanov's paintings and the insurance money he received from the settlement. After the relationship ended, Verbitskaya began calling Khazanov frequently to ask him for money. During one two-week period, Khazanov received eighteen messages from her on his answering machine. Verbitskaya threatened to tell the authorities that Khazanov had raped her if he did not give her money.

In August of 2001, Verbitskaya called Khazanov and attempted to make amends for her past behavior. She stated that she had started a new life and would like to be friends. Verbitskaya visited Khazanov and his new girlfriend, Olga Petrounina, on August 18, 2001. At Khazanov's residence, Verbitskaya admired several paintings and a grand piano. She proposed that she help Khazanov sell the paintings, and they scheduled a meeting at her condominium.

On August 22, 2001, Khazanov and Petrounina brought five paintings to Verbitskaya's residence, where Verbitskaya introduced Verbitsky as a potential buyer. Petrounina went with Verbitskaya to take her dog for a walk and to get the paintings from her car. After Verbitskaya and Petrounina left, Verbitsky assaulted Khazanov with a golf club, stabbed him in the arms with a knife, and threatened him while holding a gun. Verbitskaya and Petrounina then returned to the condominium. Petrounina observed the bruises on Khazanov and the golf club in Verbitsky's hand. She was immediately told to leave the apartment. While Petrounina waited for Khazanov in the lobby, Verbitskaya joined Verbitsky in beating Khazanov with the golf club.

Verbitsky and Verbitskaya forced Khazanov to sign receipts indicating that the paintings had been sold to them for $2,630 and that the piano had been sold to them for $15,000. They ordered Khazanov to have the items delivered to them on August 23, 2001. Verbitsky also ordered Khazanov to transfer $260,000 to a Swiss bank account.³ To ensure his compliance, Verbitsky threatened to kill Khazanov's parents and to have his daughter raped by the Russian mafia if he did not abide by Verbitsky's demands. They also forced Khazanov to record on an audiotape that he had raped Verbitskaya. Verbitskaya's voice could be heard in the background of the tape telling Khazanov what to say.

Following Khazanov's release from Verbitskaya's residence, he and Petrounina reported to the police the theft of the artwork and the extortion of his insurance settlement money. Khazanov and Petrounina returned to Verbitskaya's condominium building, accompanied by detectives, and identified Verbitskaya in the lobby. Detectives then proceeded to Verbitskaya's condominium, identified themselves as law enforcement officers, and waited for Verbitsky to open the door. Verbitsky thought the police were members of the Russian mafia and shouted that he was "one of them." When Verbitsky admitted the detectives into the residence, they found several pieces of artwork in plain view. Verbitsky and Verbitskaya were arrested and later indicted by a federal grand jury for violations of the Hobbs Act.⁴

Before the case proceeded to trial, the district court held a charge conference on the government's proposed jury instructions.⁵ Both defendants objected to the government's definition of the interstate commerce requirement. The court overruled all objections and adopted the government's proposed instructions. At the close of the government's case, the defendants moved for judgments of acquittal, arguing that the government had "failed to provide sufficient evidence to establish jurisdiction of this Court to hear these particular charges...." The court dismissed the motion. After the defendants completed their defense, they renewed their motions for acquittal, which the court again denied. Following the completion of a seven day trial, the jury convicted Verbitsky and Verbitskaya on both counts. The judge sentenced Verbitsky to 120 months in prison and Verbitskaya to 108 months in prison.⁶

II.

A.

On appeal, Verbitskaya makes three arguments. Her first argument is that the district court erred when it instructed the jury that only a "minimal" effect and not a "substantial" effect on interstate commerce was necessary to prove a violation of the Hobbs Act, 18 U.S.C. § 1951(a). Our review of a trial court's jury instructions is limited. If the instructions accurately reflect the law, the trial judge is given wide discretion as to the style and wording employed in the instruction. United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir.2001). Under this standard, "we examine whether the jury charges, considered as a whole, sufficiently instructed the jury so that the jurors understood the issues and were not misled." Id. (citing Carter v. DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir.1997)). "We will reverse the district court because of an erroneous instruction only if we are left with a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations." Id. (internal quotations omitted).

The Hobbs Act provides that "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do ... shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a). The Act defines commerce as being "commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction." Id. § 1951(b)(3).

This Circuit long has held that the jurisdictional requirement under the Hobbs Act can be met simply by showing that the offense had a "minimal" effect on commerce. United States v. Jackson, 748 F.2d 1535, 1537 (11th Cir.1984); see also United States v. Summers, 598 F.2d 450, 454 (5th Cir.1979).⁷ Verbitskaya argues that United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) altered this long-standing position and, that therefore, the district court erred.⁸ Specifically, Verbitskaya contends that Lopez expressly required the "substantial" effects test to apply to Congressional legislation involving criminal statutes in areas traditionally left to the states. Verbitskaya further contends that United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) also requires this Circuit to apply the substantial effects test for Hobbs Act violations.

Our precedent is clear, however, that "even after Lopez a conviction [under the] Hobbs Act ... requires proof of a minimal, not substantial, effect on commerce" and that "Morrison does not alter our Hobbs Act precedent." United States v. Gray, 260 F.3d 1267, 1274 (11th Cir.2001). The Gray court reasoned that unlike the Gun-Free School Zones Act at issue in Lopez and the Violence Against Women Act at issue in Morrison, "the Hobbs Act contains an explicit jurisdictional element confirming that the Act was indeed passed pursuant to Congress's power to regulate interstate commerce." Id.; see also United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir.1997). Though Verbitskaya urges us to change this long-standing position, we decline to do so.

Verbitskaya next argues that three of the government's four theories of how the extortion affected interstate commerce were legally insufficient and that, therefore she is entitled to a new trial because the jury only returned a general verdict. Under Griffin v. United States, 502 U.S. 46, 58-59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), a general verdict cannot be sustained if any of the possible bases of conviction were legally erroneous. See also Zant v....