In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2275

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MILKO MITOV,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 723—Harry D. Leinenweber, Judge.

____________

ARGUED FEBRUARY 9, 2006—DECIDED AUGUST 21, 2006

____________

Before BAUER, EASTERBROOK, and WOOD, Circuit Judges.

BAUER, Circuit Judge. Because of actions stemming from

Milko Mitov’s mistaken belief that “everybody takes money

in the United States,” a jury convicted him of attempted

extortion under the Hobbs Act, 18 U.S.C. § 1951. On appeal,

he attacks the form of his indictment, evidentiary decisions

made by the trial court, the sufficiency of the evidence

leading to his conviction, and his sentence. We affirm.

I. Background

In late 2000, Jay Berlinsky was contacted by Steven Japp,

an executive with a corporate client, the family-owned Jays

Potato Chip Company, on a personal legal matter. Steven
2 No. 05-2275

1 Hereinafter referred to as “Schwartz, Cooper.”

was concerned about the estate of his recently deceased

grandfather, Leonard Japp, Sr. Leonard had died in August

2000 at the age of 96, and he left his entire estate to his

third wife, Janice. This distribution was contrary to Steven’s expectations, and he and his relatives suspected

undue influence on the part of the beneficiaries. Because

Berlinsky, an attorney with the law firm of Schwartz,

Cooper, Greenberger, and Krauss,1

 represented the company in their corporate legal affairs, he referred the case to

his partner, Richard Schultz. Schultz specialized in the

litigation of such matters, and he agreed to represent

Steven and his relatives.

When Schultz was conducting his initial research on the

matter, the Japp family put him in touch with Milko Mitov.

Mitov had worked as Leonard’s caretaker in the Japp

household from November 1998 to January 2000. During

that time he was in close contact with the elderly patriarch.

On January 4, 2001, Schultz and his associate Brad

Springer met with Mitov at his then current workplace in

a suburb of Milwaukee, Wisconsin. During the course of the

interview Schultz and Mitov discussed what Mitov

had observed in the Japp household during his fifteen

months of employment. The meeting was conducted in

English, and the men had little trouble understanding each

other. Springer took notes during the course of the discussion. At the conclusion of the meeting, Schultz believed

Mitov was an important witness in the case for undue

influence.

In February 2001, Schultz filed a civil complaint in

DuPage County Circuit Court on behalf of Steven Japp, and

members of his family, contesting certain amendments

made to the structure of Leonard Japp, Sr.’s estate. The

complaint was based in large part on the information
No. 05-2275 3

provided by Mitov. In anticipation of the legal proceeding to

follow, Schultz notified Mitov that he and other attorneys

would likely contact him again in the coming months.

Over the course of the next year, however, obtaining

Mitov’s testimony became a major issue in the civil suit. On

June 26, 2001, Schultz and Mitov met at the office of

Schwartz, Cooper to discuss the deposition schedule. But

Mitov had a different agenda. Schultz testified that Mitov

demanded $100,000, tax-free, in exchange for his testimony

in the civil suit. The payment was to be made in five to ten

days to a Bulgarian radio station identified specifically by

a pamphlet that Mitov brought to the meeting. He threatened that, should the payment not be made, he would forget

his testimony and pretend to be unable to speak English at

his deposition. Schultz rejected the proposition and asked

Mitov if he was joking. He was not. Schultz then informed

him that to pay for his testimony would be a crime, and that

“[w]e don’t do that in the United States.” Trial Tr. vol. 1, 41,

June 8, 2004. Mitov disagreed: “Don’t tell me how things

are done in the United States. Everybody takes money in

the United States.” Id.

Schultz testified that he repeatedly attempted to dissuade

Mitov from this demand. But Mitov told Schultz that the

Japps stood to profit from the suit and that his testimony

was going to help them do that. The payment was in

exchange for this help. Mitov then informed Schultz that

should he not be paid, he would take a job in Texas where

Schultz would never find him. Mitov closed his remarks by

noting: “I’m not going to change my mind. You’re going to

pay me the $100,000 or you’re not going to get my testimony.” Trial Tr. vol. 1, 42, June 8, 2004. At the close of this,

and each subsequent meeting with Mitov, Schultz made a

memo recording the substance of the conversation.

Schultz further testified that over the course of the

next three months Mitov reiterated his demand for pay-
4 No. 05-2275

ment. On July 10, 2001, Mitov phoned Schultz and asked if

he was going to pay the $100,000. This time Mitov set the

deadline for 5 p.m. that day. Schultz again refused, and

took the opportunity to remind him that what he was doing

was wrong; that it was a crime. Additionally, he asked

Mitov to meet with him again at his office so that they could

discuss the consequences of the demand. Mitov told Schultz

he would consider the meeting, and asked Schultz to call

him the next day. When Schultz made the call on July 12,

however, Mitov again demanded payment. At the end of the

conversation, Schultz convinced Mitov to meet in person

again.

On Friday, July 13, 2001, Schultz and Berlinsky met with

Mitov in person in an attempt to change his mind. Schultz

testified that he told Mitov it was illegal to demand payment for his testimony, that doing so was “. . . extortion. It’s

a criminal violation.” Trial Rec. vol. 1, 47, June 8, 2004.

Their actions were to no avail: Mitov responded by raising

his demand. He told them he wanted $100,000 before and

another $100,000 after the trial. Again, he told them the

first payment should be made to the Bulgarian radio

station. During this meeting Mitov also told them that he

was afraid of Eric Koenig, Janice Japp’s son-in-law. Schultz

told him that if he was afraid they should contact the

authorities to obtain protection. At the close of the discussion Schultz handed Mitov his deposition subpoena with the

date set for August 14, 2001.

Schultz testified that Mitov came to see him again on July

18, 2001, and the meeting followed a familiar arc. Initially

Mitov told Schultz he would testify truthfully, but then

added he would do so only in exchange for payment.

Additionally, Schultz testified Mitov told him the Japp

family had already paid him $300 for information and

loaned him money to purchase a car during his term of

employment. Lastly, Mitov claimed that Schultz had
No. 05-2275 5

already promised to pay him the $100,000, a claim which

Schultz denied.

After repeatedly meeting with Schultz, Mitov turned his

attention to Berlinsky. The two men met twice, first on

August 6, and again on August 8, 2001. Berlinksy testified

that over the course of the meetings he tried to convince

Mitov to testify without payment, and Mitov attempted to

persuade him to come up with the money. Neither men

were successful in their endeavor. Mitov did not attend

his scheduled deposition on August 14, 2001, and his

deposition was never taken.

After Mitov failed to attend his deposition, Schultz

doubted the possibility of succeeding in the Japp estate

dispute. He testified that the complaint relied heavily on

information Mitov provided in the January meeting, and

that even if Mitov were to testify at a later date, he would

have had to notify opposing counsel of the demand for

payment. Schultz stated that “[t]he clients had brought to

us an undue influence case, which I thought was a very

viable case and it just disintegrated in our hands and the

clients were not going to achieve the kind of success they

were entitled to, in my opinion.” Trial Tr. vol. 1, 55, June 8,

2004. When asked why he chose not to compel Mitov’s

testimony, Schultz replied that, strategically, there

would have been no point: “Mr. Mitov told us he wasn’t

going to tell the truth[,] and pretend he couldn’t understand

English but, in addition to that, by this time, no matter

what he said, he had destroyed his own credibility . . . once

you are selling your testimony, [you are] not a credible

witness.” Trial Tr. vol. 1, 56-57, June 8, 2004.

Schultz contacted the United State’s Attorney’s Office

concerning the matter shortly after the aborted deposition.

On September 10, 2001, Schultz and Berlinsky met with

Assistant United States Attorney Madeleine Murphy and

Special Agent Tina Fourkas of the Federal Bureau of
6 No. 05-2275

Investigation (FBI) and reported Mitov’s demands. Agent

Fourkas then contacted Steven Japp, who agreed to

assist the FBI in investigating the matter.

On January 15, 2002, Steven phoned Mitov and arranged to meet him the next day at a restaurant. This

phone call and three subsequent conversations between

Steven and Mitov were all recorded by Agent Fourkas. At

the restaurant, Steven asked Mitov to attend the deposition. Mitov told him that would be deposed only if he was

paid. He demanded the payment be wired to his cousin in

Luxembourg: “I got a cousin, he’s a very big doctor in

Luxembourg . . . send money there, nobody knows about the

money, nothing . . . Two hundred thousand. Two hundred

thousand dollars.” Trial Tr. vol. 2, 174, June 9, 2004. In a

follow-up conversation on May 30, 2002, Steven asked

Mitov what would happen if he didn’t pay; Mitov responded:

“I got information that you say goodby [sic] to. What about

that?” Trial Tr. vol. 2, 183, June 9, 2004.

On July 24, 2002, a grand jury returned an indictment

charging Mitov with three counts of attempted extortion

in violation of the Hobbs Act, 18 U.S.C. § 1951.

In the weeks before the criminal trial, Schwartz, Cooper

settled the Japp estate dispute. Schultz testified that

Steven Japp was unhappy with the result, and that he

was concerned about the impact of the loss on his reputation in the legal community. Additionally, because the case

did not proceed properly, the firm was forced to discount

their fees: “When a case goes bad like this one did, we

discount everything, including expenses.” Trial Tr. vol. 1,

70, June 8, 2004. Following the settlement, Schwartz,

Cooper produced their notes and documentation pertaining to the civil suit. This material had previously been

withheld pursuant to a claim of work-product privilege.

In his defense, Mitov stated that he demanded payment

for his testimony because members of the Japp family had
No. 05-2275 7

previously promised to pay him for the information. He

testified to conveying this promise to Schultz when they

first spoke on the phone in January 2001, and again to

Springer at the close of their January 4 meeting. Both men,

he stated, agreed to pay him. But Mitov acknowledged that

when he visited Schultz in his office, Schultz denied having

agreed to pay him. He further testified that Schultz told

him that paying for his testimony was illegal, and that he

understood that if something was illegal it was “against the

law.” Trial Tr. vol. 2, 233, June 9, 2004. On cross-examination, Mitov admitted to directing Steven Japp to send

$200,000 to his cousin in Luxembourg. Mitov also testified

that he sought the money out of fear of Eric Koenig, and

that he would have used the money to ensure his own

protection.

On June 10, 2004, the jury found Mitov guilty as charged

in all three counts of the indictment. On appeal, Mitov

argues that (1) the district court constructively amended the

indictment, (2) the government failed to prove elements of

the crime as charged, (3) the district court erred in not

admitting additional evidence from the underlying civil

case, and (4) that the findings made at his sentencing were

contrary to United States v. Booker, 543 U.S. 220 (2005).

II. Analysis

A. The Indictment

Mitov first claims that the district court erred in granting

the government’s motion to amend the date on count one of

the indictment. He argues that the date change violated his

Fifth Amendment right to be tried on indictments brought

by a grand jury. U.S. CONST. amend. V. A constructive

amendment to an indictment “ ‘occurs when either the

government . . . , the court . . . , or both, broadens the

possible bases for conviction beyond those presented by the

grand jury.’ ” United States v. Cusimano, 148 F.3d 824, 829
8 No. 05-2275

(7th Cir. 1998) (citing United States v. Floresca, 38 F.3d

706, 710 (4th Cir. 1994)). Whether the change allowed at

trial amounted to an impermissible constructive amendment is a question of law that we review de novo. United

States v. Trennell, 290 F.3d 881, 886 (7th Cir. 2002); see also

United States v. Alhalabi, 443 F.3d 605, 614 (7th Cir. 2006).

Count one of the indictment charged that:

On or about June 1, 2001, . . . MILKO MITOV . . .

knowingly attempted to affect commerce by extortion,

in that defendant attempted to obtain property in the

form of payments from attorneys of Schwartz, Cooper,

Greenberger and Krauss, whose consent defendant

attempted to induce by the wrongful use of actual

and threatened fear of economic harm.”

R.1. The June 1, 2001, date was erroneously noted by Agent

Fourkas in her September 10, 2001, meeting with Schultz

and Berlinsky. The government did not learn of the error

until, in the days before trial, the attorneys of Schwartz,

Cooper turned over their notes from the underlying civil

suit. In reviewing the notes, the government realized that

the meeting between Mitov, Schultz and Berlinsky, in

which Mitov first made his demand in person, actually

occurred on July 13, 2001. On June 7, 2004, the day before

Mitov’s trial began, the government moved to amend the

indictment and correct the error. Before granting the

motion, the district court asked Mitov if he would suffer any

prejudice from this change. Defense counsel responded only

by noting generally that their case had been “based on the

indictment as it was written.” Trial Tr. vol. 1, 2-3, June 8,

2004. At no point during the trial did Mitov raise a defense

that went to the date or timing of the criminal demand.

For a change in the indictment to rise to the level of a

constructive amendment, it must establish an offense

different from, or in addition to, those originally charged.

See Trennell, 290 F.3d at 888. As such, we are primarily
No. 05-2275 9

concerned with changes made to the indictment that affect

elements of the crime. United States v. Krilich, 159 F.3d

1020, 1027 (7th Cir. 1998). In a charge of extortion, however, the date is not an element of the offense. See id.; 18

U.S.C. § 1951. Further, where the charge is worded so

broadly as to state “ ‘on or about’ a certain date, the defendant is deemed to be on notice that the charge is not limited

to a specific date.” United States v. Folks, 236 F.3d 384, 391

(7th Cir. 2001) (citing United States v. Leibowitz, 857 F.2d

373, 379 (7th Cir. 1988)). Given the broad wording of count

one as offered by the grand jury, and the fact that the

changed date fell before the date of the indictment itself and

within the statute of limitations, we find that the district

court did not err in granting the government’s motion. See

id.

B. The Conviction

Mitov next argues that the evidence presented at trial

was insufficient to convict him of attempted extortion,

despite the jury’s verdict. Our review of such a claim is

highly deferential towards the decision reached at trial, and

we may reverse the conviction “ ‘only when the record is

devoid of any evidence, regardless of how it is weighed, from

which a jury could find guilt beyond a reasonable doubt.’ ”

United States v. Gracia, 272 F.3d 866, 873 (7th Cir. 2001)

(citing United States v. Garcia, 35 F.3d 1125, 1128 (7th Cir.

1994)). As if this hurdle was not high enough, Mitov failed

to raise these challenges before the district court, and so we

review only for plain error. United States v. Cummings, 395

F.3d 392, 397 (7th Cir. 2005). Mitov, therefore, must

demonstrate a manifest miscarriage of justice. United

States v. Meadows, 91 F.3d 851, 854-55 (7th Cir. 1996).

To support the conviction of attempted extortion under

18 U.S.C. § 1951, the government had to prove, beyond a

reasonable doubt, that Mitov wrongfully used force or fear,
10 No. 05-2275

including fear of economic harm, to obtain money or

property, with their consent, from Schwartz, Cooper and

Steven Japp. § 1951(b)(2); see also United States v.

Granados, 142 F.3d 1016, 1019-20 (7th Cir. 1998). This fear

of economic harm need not be certain, it must only

be reasonable. Granados, 142 F.3d at 1020. Additionally,

the extortion must be shown to affect interstate commerce.

§ 1951(a). Mitov contends that the government failed to

show both that the victims’ fear was reasonable and that

the attempted extortion affected commerce.

Mitov’s primary claim regarding the reasonableness of the

victims’ fear of economic harm is that the underlying state

suit was destined to fail. Therefore, any hope of success and

possible economic profit was unreasonable. But this argument demands a showing of certainty of success in the

underlying suit, not reasonableness, and thus goes farther

than the statute requires. In the instant case, if the victims

had a reasonable belief in some form of success and profit

from the civil suit, a threat to that profit may create a

reasonable fear of economic harm. Concurrently, in the

State of Illinois, a will containing an attestation clause

disclosing that all of the statutory requirements have been

met, and evidencing admittedly genuine signatures,

establishes a prima facie case favoring due execution of the

will. In re Estate of Chlebos, 194 Ill. App. 3d 46, 50-51 (Ill.

App. 1990). But this is a rebuttable presumption, and not

every case challenging a will is certain to fail. Id.; see In re

Estate of Jacobson, 75 Ill. App. 3d 102, 107 (Ill. App. 1979)

(denying admission of will to probate where evidence

demonstrating soundness of testator’s mind was “patently

insufficient”). A seasoned attorney such as Schultz may

therefore be found by the jury to have had a reasonable

chance of some form of success and profit, and thus a

reasonable fear of harm upon hearing Mitov’s demand.

At trial, the government used Schultz’s testimony to prove

the offense charged in count one, Mitov’s attempted extor-
No. 05-2275 11

tion of Schwartz, Cooper. Schultz testified to his expectation

of success in the underlying civil suit, the negative effect of

Mitov’s demand for payment on that suit, and his fear of

repercussions within the legal community for the reputation

of his firm. He stated that Steven Japp and members of his

family brought him a “very viable case,” based in large part

on the information provided by Mitov in his January 4, 2001

interview. Trial Tr. vol. 1, 55, June 8, 2004. And while

Schultz acknowledged there was no guarantee of success in

the matter, his testimony was explicit in that he believed

Mitov’s demand for payment destroyed the witness’s

credibility, and thus the foundation of the case. The demand, Schultz stated, “significantly diminished” the firm’s

likelihood of success. Id. This diminished probability, and

their resulting discount in fees and expenses created not

just a reasonable fear of economic harm, but actual economic harm, sufficient to satisfy the elements of the Hobbs

Act. See United States v. Lewis, 797 F.2d 358, 364 (7th Cir.

1986); United States v. Rindone, 631 F.2d 491, 494 (7th Cir.

1980).

As to counts two and three, which charged Mitov for the

attempted extortion of Steven Japp in 2002, he argues that

because his prior demand on the law firm had sabotaged the

will challenge, it was impossible for Steven to expect any

form of success in the case, and thus possess the requisite

reasonable fear. Essentially, Mitov claims that the extortion

of Steven Japp was factually impossible. But Mitov was

convicted of attempted extortion, and factual impossibility

is no defense. United States v. Bailey, 227 F.3d 792, 797

(7th Cir. 2000). Further, Steven Japp’s reasonable fear of

economic harm is intertwined with that of his attorney,

Richard Schultz. Because Schultz was Steven’s legal

representative, any fear that Schultz had regarding the

effect of the demand on the case, and thus the economic

benefit from suit or settlement, may be imputed to Steven

himself.
12 No. 05-2275

Mitov further claims that the government failed to

demonstrate that his actions affected interstate commerce.

But the Hobbs Act is imbued with the full reach of Congress’s Commerce Clause power. 18 U.S.C. § 1951(b)(3);

Scheidler v. NOW, Inc., 537 U.S. 393, 408, (2003). Therefore, the government need only demonstrate a de minimis

affect on commerce. United States v. Re, 401 F.3d 828, 834-

35 (7th Cir. 2005). Or, where there is no actual effect, the

government need prove only “a realistic probability of an

effect . . . on interstate commerce to bring [the extortion]”

within prosecutorial reach. United States v. Peterson, 236

F.3d 848, 852 (7th Cir. 2001) (citing United States v. Bailey,

227 F.3d 792, 797 (7th Cir. 2000)).

In his attack on count one, the attempted extortion of

Schwartz, Cooper, Mitov argues that the money was

supposed to come from the Japp family, not the firm, and

thus would not have affected interstate commerce. But his

demands for payment were never so specific as to the source

of the funds, and he repeatedly gave short-term deadlines

to raise the money. Had the firm satisfied these demands,

their assets would have been temporarily depleted. Such a

“loss of the use of money constitutes a deprivation of

property under § 1951,” Lewis, 797 F.2d at 365, and,

because the firm regularly purchases items from states

other than Illinois, interstate commerce would have been

effected. Bailey, 227 F.3d at 797-98. The government,

therefore, made the necessary showing as to count one.

On counts two and three, charging the attempted extortion of Steven Japp, Mitov argues that the demanded

payment was to come from the family, and thus not affect

interstate commerce. The payment from Steven, however,

was to be wired to Mitov’s cousin in Luxembourg; a fact

he admitted at trial. An international transfer of assets

such as is this is sufficient to satisfy the interstate commerce requirement of § 1951. See United States v. Kaplan,

171 F.3d 1351, 1355 (11th Cir. 1999). Given these eviden-
No. 05-2275 13

tiary showings on the form and probable consequences of

Mitov’s demands for payment, we cannot say that the record

was devoid of evidence from which the jury could find he

attempted to extort Schwartz, Cooper and Steven Japp.

C. Evidence From the Underlying Civil Suit

Mitov next claims that the district court erred in limiting his use of evidence from the state court trial. We review

these evidentiary rulings for an abuse of discretion, which

will be found only where no reasonable person would agree

with the decision of the district court. United States v.

Thomas, 453 F.3d 838, 845 (7th Cir. 2006).

In arguing this point, Mitov generally claims that his

culpability on the attempted extortion charge is “inseparable from the strength of the proof of undue influence” in the

underlying state civil suit. Defendant’s Br. 21. In presenting

this theory at trial, he aimed to introduce Springer’s notes

from the January 4, 2001, meeting, answers to interrogatories verified by Steven Japp, and prior amendments made

to Leonard Japp, Sr.’s trusts. His apparent intention was to

re-try the civil suit in federal court. But the district court

judge was not required to allow this, and to do so would

have been an unjustifiable expense and delay. FED. R. EVID.

102. As noted above, 18 U.S.C. § 1951 does not require that

the victim’s fear be certain, it need only be reasonable.

Further, Mitov was able to appropriately and extensively

cross-examine Schultz on his expectations for the underlying case using the answers to interrogatories and the

substance of Springer’s notes. This line of questioning

brought to light apparent inconsistencies between the two

documents, and thus the reasonableness of Schultz’s fear of

harm. Notwithstanding Mitov’s general citation to FED. R.

EVID. 103, rulings on evidence, he presents nothing to

indicate that no reasonable person would have agreed

with the district court.
14 No. 05-2275

D. The Sentence

Lastly, Mitov argues that the district court committed

error in finding, by a preponderance of the evidence, that he

obstructed justice. This finding enhanced his Guideline

Range by two levels pursuant to U.S.S.G. § 3C1.1. Mitov

claims that United States v. Booker, 543 U.S. 220 (2005),

held such enhancements must be found beyond a reasonable

doubt. He is mistaken. See United States v. Bryant, 420

F.3d 652, 656 (7th Cir. 2005). Such a burden of proof

is necessary only where the finding yields an imposed

sentence greater than the statutory maximum. Id. Mitov,

however, was sentenced to a term of twenty-four months,

well below the statutory maximum of twenty years. 18

U.S.C. § 1951(a).

For the abovementioned reasons, the decisions of the

district court and petitioner-appellant’s conviction are

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-21-06