APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S.
Michael Tumposky, with whom Hedges & Tumposky, LLP was on
brief, for appellant Jambulat Tkhilaishvili.
William W. Fick, with whom Fick & Marx LLP was on brief,
for appellant David Tkhilaishvili.
R. De Vincentis, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
Howard, Chief Judge, Torruella and Selya, Circuit Judges.
Torosyan, together with defendants-appellants Jambulat
Tkhilaishvili and David Tkhilaishvili, planned to open a
suboxone clinic (the Clinic) for the treatment of opioid
addiction. The defendants had represented to Torosyan that
they would provide the know-how as long as he furnished the
bulk of the necessary financing. But while Torosyan was
depleting his resources in order to get the Clinic up and
running, the Tkhilaishvili brothers attempted to relieve him
of some portion of his share in the business through
extortionate means. Torosyan blew the whistle and, after a
week-long trial, a jury convicted the defendants of
conspiring to commit Hobbs Act extortion and other crimes.
The defendants appeal. After careful consideration, we
reverse the judgment of conviction on an embezzlement count
brought against David; otherwise, we find the defendants'
manifold claims of error either lacking in merit or waived
(or in some instances both) and, therefore, affirm the
remaining judgments of conviction. Finally, we remand to the
district court for further consideration of David's
sentence and the concomitant restitution order in light of
the reversed conviction.
start by rehearsing the relevant facts, taking them in the
light most hospitable to the verdict, consistent with record
support. See United States v. DiDonna, 866 F.3d 40,
43 (1st Cir. 2017). We then recount the travel of the case.
2014, David approached Torosyan about opening a suboxone
clinic in Quincy, Massachusetts. David boasted that he and
his brother Jambulat had experience running a suboxone clinic
but needed a significant capital infusion to get the project
off the ground. Torosyan, who had known David socially,
agreed to invest $500, 000 in the project.
December of 2014, the parties entered into a letter agreement
establishing the structure of the business and the membership
interests of each principal. Under the letter agreement, the
venture consisted of two Massachusetts limited liability
companies: Allied Health Clinic (AHC) and Health Management
Group (HMG). Torosyan received a 41% Class A share in both
AHC and HMG; David received a 40% Class A share in HMG and a
4% Class B share in AHC; and Jambulat received a 45% Class A
share in AHC and a 5% Class B share in HMG. The remaining
Class B interests in AHC and HMG were reserved for other
anticipated employees of the proposed suboxone clinic, all of
whom were relatives or former associates of the defendants.
Torosyan's role as the primary (indeed, the sole)
investor, the letter agreement granted him a special consent
authority, which entitled him to decide any contested matters
involving the Clinic until his capital investment had been
fully recouped. It also granted him a secured guarantee of
50% of his investment, collateralized by the
Tkhilaishvilis' pizza parlor.
the letter agreement in place, the trio moved forward with
their plans to open the Clinic. From Torosyan's
perspective, things did not go smoothly. In the Spring of
2015, he learned that the defendants had hoodwinked him about
the progress of construction. He also learned of prior
violent behavior by the defendants. It was not until August
6, 2015 - months later than anticipated - that the Clinic
finally received a certificate of occupancy from the City of
Quincy. By then, Torosyan had infused approximately $400, 000
of his personal savings into the Clinic.
went downhill from there. On August 22, the defendants asked
Torosyan to release his security interest in the pizza parlor
so that they could sell that business and focus on the
Clinic. Torosyan agreed, but as soon as he had signed the
release, the defendants started to threaten him. They
demanded that he surrender his special consent authority and
relinquish a portion of his ownership interest. They warned
that if he refused to comply, they would "burn down the
Clinic" and that he and his family were "going to
next day, Torosyan suggested to David that they mediate the
dispute in accordance with the letter agreement. David
replied that he would "put a bullet in [the
mediator's] head" and said that his brother
"shot . . . people in the head." Torosyan was
"very, very scared."
shaken by this dramatic shift in the defendants'
attitude, Torosyan nonetheless decided to move forward with
the Clinic. In September, lawyers for Torosyan and the
defendants negotiated and drafted formal operating
agreements. Except for minor adjustments to the distribution
of membership interests, the operating agreements retained
most features of the letter agreement (including
Torosyan's special consent authority). In addition, the
operating agreements included new "duty of loyalty"
provisions, which had the potential to trigger forfeiture of
any breaching member's ownership interest.
and those persons holding minor membership interests signed
the operating agreements on September 11. Jambulat signed the
following day, after declaring that "contracts mean[t]
nothing" to him. He also demanded that Torosyan
immediately give 5% of Torosyan's ownership interest to a
creditor of the defendants and agree to give 40% of the
Clinic's profits to David when the Clinic began receiving
reimbursements from insurance companies. Torosyan deflected
these demands, saying that he would speak to his lawyer.
David, who was traveling, signed the operating agreements
sometime within the next few days.
Clinic opened in October of 2015, after receiving a license
from state public health authorities. Around that time,
Torosyan loaned David $3, 000, with the understanding that
the money would serve as David's salary for November
unless repaid within one week. David never repaid the loan
but nonetheless withdrew salary payments for November
totaling $3, 500.
November 9, David requested that Torosyan meet him at the
Clinic. When Torosyan arrived, the defendants asked to speak
privately with him in an exam room. Once inside, they locked
the door and demanded that he turn over 40% of available
Clinic funds to them and cede 5% of his ownership interest to
their friend. In Torosyan's presence, David suggested to
Jambulat that they needed to "get rid of" him. The
threats continued as Torosyan retreated to the parking lot,
where Torosyan saw Jambulat withdraw a knife from the glove
compartment of David's car.
then, Torosyan had sunk roughly $580, 000 into the Clinic. He
reported the threats to his attorneys and thereafter met with
agents of the Federal Bureau of Investigation (FBI). At the
FBI's behest, he agreed to wear a wire and
surreptitiously record conversations with the defendants. In
recordings made on November 25 and 30, David made several
incriminating statements, reiterating earlier threats,
referring to previous violent acts undertaken by both
defendants, and suggesting that he had connections with
members of Russian organized crime.
January 6, 2016, Torosyan sought to exorcise the defendants:
he invoked the "duty of loyalty" provision to
remove them from Clinic membership. Shortly thereafter, a
federal grand jury sitting in the District of Massachusetts
charged both defendants with conspiring and attempting to
commit Hobbs Act extortion (counts 1 and 2). See 18
U.S.C. § 1951. In addition, David was charged with
embezzlement from a health care benefit program (counts 3 and
4). See id. § 669.
defendants maintained their innocence and, in advance of
trial, moved to exclude evidence of prior violent acts.
See Fed.R.Evid. 404(b). At a pretrial hearing, the
district court ruled such evidence admissible "to the
degree that the witness has expressed a concern or is aware
of prior acts of violence by the defendants." A
week-long jury trial ensued, and the defendants timely moved
for judgment of acquittal. See Fed. R. Crim. P.
29(a). The district court reserved decision, see
Fed. R. Crim. P. 29(b), and sent the case to the jury, which
found the defendants guilty on all counts.
consolidated sentencing proceeding was conducted on two
separate days. During that hearing, the district court denied
the defendants' motions for judgment of acquittal
(including a supplemental motion filed by David over the
government's objection on the eve of the first day). The
court proceeded to sentence David to four concurrent 36-month
terms of immurement followed by a three-year term of
supervised release; ordered him to pay a special assessment
of $400 ($100 per count), see 18 U.S.C. § 3013;
and decreed that he make restitution in the amount of $3,
500. The court sentenced Jambulat to two consecutive
nine-month terms of immurement followed by a three-year term
of supervised release, and ordered him to pay a special
assessment of $200. These timely appeals ensued.
HOBBS ACT EXTORTION
defendants challenge on three fronts their convictions for
conspiring and attempting to commit Hobbs Act extortion
(counts 1 and 2). We deal sequentially with these challenges.