Verbitskaya: Hobbs Act convictions affirmed
In U.S. v. Verbitskaya, No. 03-11870 (April 21, 2005), the Court affirmed convictions and sentences for defendants convicted of extortion in violation of the Hobbs Act.
The Court rejected the argument that the jury was incorrectly instructed that only a "minimal" effet on interstate commerce was necessary to prove a violation of the Hobbs Act. The Court stated that this instruction was consistent the caselaw. The Court also found "legally sufficient" evidence that the different theories of extortion in question – which involved a threatened theft of paintings – interfered with interstate commerce. The Court further held that U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977) had been "discredited" by Schad v. Arizona, 501 U.S. 624 (1991), and that consequently a district court need not instruct a jury that it has to agree unanimously on which theory supported its verdict.
The Court rejected one defendant's challenge to the sufficiency of the evidence regarding an impact on interstate commerce, pointing out that this effect was shown in the case. The Court summarily rejected a number of other challenges to the conviction, pointing out, inter alia, that comments about a defendant's connection to the Russian mafia were not "plain error," because of evidence on this point that was part of the trial record.
The Court also rejected an ineffective assistance of counsel claim based on counsel's absence during closing argument, pointing out that co-counsel, a "seasoned" lawyer, gave the closing.
The Court rejected a challenge to a sentence enhancement for "otherwise using" a fireram. The Court noted that a defendant grabbed a handgun and threatened to shoot the victim. Finally, the Court found that no Booker challenge could be raised, because the defendants waived this issue by failing to raise it in their initial brief on appeal.
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