In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 01-4202 & 01-4203

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

VIKTOR KHILCHENKO and

NAZAR BABIYCHUK,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00-CR-179—Joan B. Gottschall, Judge.

____________

ARGUED FEBRUARY 13, 2003—DECIDED APRIL 7, 2003

____________

Before COFFEY, MANION, and ROVNER, Circuit Judges.

COFFEY, Circuit Judge. Viktor Khilchenko (“Khilchenko”)

and Nazar Babiychuk (“Babiychuk”) challenge their convictions after a jury found them guilty of violating 18

U.S.C. § 894 (“Collection of extensions of credit by extortionate means”). We affirm.

I. FACTUAL BACKGROUND

Shortly after 6 p.m. on the evening of March 8, 2000,

Andrey Grin (“Grin”) drove his Honda Passport to Skokie,

Illinois to pick up his fiancée, Irina Gaponenko, after work.
2 Nos. 01-4202 & 01-4203

Grin pulled over to the curb, and Gaponenko entered the

car. Just after she did so, a vehicle containing defendants

Khilchenko and Babiychuk pulled in front of Grin’s car and

blocked it in. Khilchenko and Babiychuk exited their

vehicle, approached Grin’s car and opened the driver’s door.

The two then showed Grin a picture of a young woman,

whom Grin recognized as Svetlana Fastoskaya (“Svetlana”),

and claimed that Grin owed her $80,000. They threatened

Grin, saying that if he did not pay up, they would harm him

or his family.

Grin protested, saying that he did not owe any money

to Svetlana, whom he knew as a former girlfriend and as

a business partner in his video production business.

Khilchenko and Babiychuk instructed Grin to contact

Svetlana and determine what amount, if any, he owed

Svetlana. They warned him not to go to the police and then

left.

The next evening, March 9, Grin met with Svetlana at a

pancake restaurant in Skokie. At this meeting, Svetlana

told Grin that she wanted him to pay back the money she

had invested in his video production business. She showed

Grin a list of expenses and indicated that Khilchenko

and Babiychuk had been hired to get her money back at a

fifty percent commission. She also offered to forgive the

debt if Grin married her. As Grin and Svetlana were

talking, Khilchenko and Babiychuk entered the restaurant

and confronted Grin. Khilchenko asked Svetlana how

much Grin owed her; she responded by saying “$80,000.”

Khilchenko then threatened Grin that he would be killed if

he failed to come up with at least $20,000 by 5 p.m. the

next day.

At approximately 10 a.m. the next morning, March 10,

Grin called the FBI in an effort to secure their assistance.

Grin wore an FBI-provided wire to his last meeting with the

defendants. After recording further threats made by
Nos. 01-4202 & 01-4203 3

Khilchenko and Babiychuk, as well as tracking a transfer

of money from Grin to the two defendants, the FBI arrested

Khilchenko and Babiychuk.

On March 11, 2000, defendants were charged by Complaint with violations of 18 U.S.C. § 894 (“Collection of

extensions of credit by extortionate means”) under 18

U.S.C. § 2 (“Principals”). On April 6, 2000, defendants were

charged by Indictment. Babiychuk filed a pretrial Motion to

Dismiss Indictment, asserting that no interstate commerce

issues existed in the case, and hence there was no federal

jurisdiction. The district court denied the motion. At the

close of evidence at the defendants’ trial by jury, both defendants jointly renewed the pretrial Motion to Dismiss

Indictment as a Motion for Judgment of Acquittal. The

district court denied the motion, referencing its earlier

ruling. The jury found the defendants guilty. Both of the

defendants were sentenced to 35 months’ imprisonment on

November 29, 2001. Upon their release from confinement,

both convicts are to be surrendered by the authorities to the

immigration authorities for immediate deportation.

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231. This Court has jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 3742(a). Khilchenko and

Babiychuk raise three issues on appeal: (1) the evidence

used against them was insufficient to support their conviction; (2) the evidence produced by the government at trial

constituted a variance from or constructive amendment of

the indictment; and (3) the law that they are charged with

breaking violates the Commerce Clause.

II. ANALYSIS

A. Sufficiency of the Evidence

Khilchenko and Babiychuk argue that the evidence presented by the government at trial was insufficient to sup-
4 Nos. 01-4202 & 01-4203

port the jury’s guilty verdict. This Court will reverse the

jury’s verdict only when there was “no basis for a rational

factfinder to find all of the essential elements of a crime

beyond a reasonable doubt.” United States v. McCaffrey,

181 F.3d 854, 856 (7th Cir. 1999). We will not substitute

our own credibility assessment for that of the factfinder,

nor will we consider conflicting evidence or alternate

theories of the case. Id.

In United States v. Touloumis, 771 F.2d 235 (7th Cir.

1985), this Court stated that to convict a defendant under

§ 894, the trier of fact must find that: (1) a collection or

attempted collection of an “extension of credit” was made,

(2) extortionate means were used, and (3) the defendant

knowingly participated in these actions. Id. at 238. To

“extend credit” is defined at 18 U.S.C. § 891(1) as “to make

or renew any loan, or to enter into any agreement, tacit or

express, whereby the repayment or satisfaction of any debt

or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred.”

Here, defendants challenge whether they knowingly participated in the collection or attempted collection of an

extension of credit. Khilchenko and Babiychuk argue that

no “debt” existed between Grin and Svetlana, and that as a

result they could not have been attempting to collect an

extension of credit under the first part of the Touloumis

analysis.

The plain language of the statutory definition indicates

that “extension of credit” applies to “debts or claims.” 18

U.S.C. § 891(1). When applying 18 U.S.C. § 894, this Court

does not inquire as to how the debt or claim arose. See

United States v. Annerino, 495 F.2d 1159, 1166 & n.8 (7th

Cir. 1974) (noting that § 894 forbids the extortionate collection of an extension of credit “regardless of whether the

loan arose from a traditional type of loan or resulted from

the assumption of responsibility as a result of force or

threats”).
Nos. 01-4202 & 01-4203 5

Although Grin testified that he did not believe that he

owed Svetlana any money and that he and Svetlana “never

had an agreement that I had to return the money,” Grin

also testified that Khilchenko and Babiychuk told him he

owed Svetlana $80,000 and that they would harm him if he

did not pay it back. Based on such testimony, the jury could

reasonably have found that a “debt or claim” existed between Svetlana and Grin. While there is no doubt that the

existence of the debt or claim was disputed, such “disputed”

debts are expressly included in the § 891(1) definition of

“extension of credit.” Therefore, because a rational jury

could have decided as the jury in this case did, we refuse to

disturb the trial court’s ruling on this issue.

B. Variance from or Amendment to the Indictment

Khilchenko and Babiychuk argue that the evidence presented by the government at trial constituted a variance

from or constructive amendment of the indictment. Such

amendments are prohibited by the Fifth Amendment,

which states that “No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Whereas Khilchenko

and Babiychuk did not raise an objection to an alleged

constructive amendment below, we review for plain error.

United States v. Baker, 227 F.3d 955, 963 (7th Cir. 2000).

To effect a constructive amendment, the evidence at trial

must establish offenses different from or in addition to

those charged by the grand jury. Id. at 960. To merit

reversal, the constructive amendment must be so serious

that a defendant probably would have been acquitted

without it. Id. at 963.

Khilchenko and Babiychuk’s constructive amendment

argument is essentially a repeat of their argument that the

evidence against them was insufficient; that is, that the

government did not prove the existence of a “debt” between
6 Nos. 01-4202 & 01-4203

Grin and Svetlana. For the reasons discussed supra, their

argument fails. The government presented sufficient proof

of a “debt or claim” under § 891. We disagree with the

defendants’ contention, for the evidence at trial surely did

not establish offenses different from or in addition to those

charged by the grand jury, as Baker requires. We conclude

that there was no constructive variance between the indictment and the evidence adduced at trial.

Khilchenko and Babiychuk also argue that “the facts

surrounding defendants’ case are inconsistent with the

facts associated with a (typical) violation of (§ 894).” This

argument, too, is unavailing. It does not matter whether

defendants’ conduct matches typical violations of the

statute; what matters is whether their conduct violates the

plain language of the statute. Because the evidence at trial

was not at variance with the Indictment, the district court’s

ruling is affirmed.

C. The Commerce Clause

Khilchenko and Babiychuk argue that the district court

erred in dismissing their post-trial motion for judgment of

acquittal. We review motions for judgment of acquittal

under the same standard that the trial court applied.

United States v. Beck, 615 F.2d 441, 447 (7th Cir. 1980).

The firmly established rule is that the court must decide

“whether at the time of the motion there was relevant

evidence from which the jury could reasonably find (defendant) guilty beyond a reasonable doubt.” Id. at 447-48.

Evidence will be evaluated in the light most favorable to the

Government, bearing in mind that it is the exclusive

function of the jury to interpret witness credibility. Id.

In challenging the dismissal of their motion, defendants

make two substantive arguments and one procedural argument. First, defendants argue that § 894 does not apply to

them because it was not proven that they are members of
Nos. 01-4202 & 01-4203 7

an organized crime ring, which they claim was Congress’

attempted target in passing the statute. Second, defendants

argue that § 894 should not be applied to them because the

activity being prosecuted was purely intrastate. Finally,

defendants object to the district court’s denial of their motion for judgment of acquittal without making additional

findings of fact as to evidence adduced at trial, based only

on a reference to the court’s pretrial denial of the same

motion. 

Accepting the appellants’ first two arguments would force

this Court to strike down a clear and unambiguous statute

and overrule a host of case law supporting the rule that a

constitutional interpretation of 18 U.S.C. § 894 may include

both interstate and intrastate extortionate activity, regardless of whether the defendants are actually involved in

organized crime. See, e.g., United States v. Annerino, 495

F.2d 1159, 1164-65 (7th Cir. 1974) (“It is not necessary that

the participants in the transaction be members of organized

crime or that the particular activity has affected interstate

commerce.”). In enacting § 894 Congress stated “even where

extortionate credit transactions are purely intrastate in

character, they nevertheless directly affect interstate and

foreign commerce.” Pub. L. No. 90-321 § 200 (codified at 18

U.S.C. § 894) (1994)). Khilchenko and Babiychuk have not

presented a compelling reason for effecting such a change

in the law, and we reject their invitation to overturn this

Court’s precedent in this area.

Finally, defendants argue that their motion for judgment

of acquittal was improperly denied by the district court

because it did not make additional findings of fact regarding the constitutional applicability of § 894 to the facts of

this case. In denying the motion, the district court simply

made reference to its pretrial denial of the same motion.

The defendants argue that additional findings of fact are

required by Fed. Rule of Crim. Proc. 12(e), which provides

that “where factual issues are involved in determining a
8 Nos. 01-4202 & 01-4203

motion, the court shall state its essential findings on the

record.”

Here, the district court made no findings of fact in its

post-trial denial of the defendants’ motion for acquittal. In

this case, however, the district court was under no obligation to do so. See, e.g., United States v. Annerino, 495 F.2d

1159, 1164-65 (7th Cir. 1974) (“It is not necessary that the

participants in the transaction be members of organized

crime or that the particular activity has affected interstate

commerce.”). The district court properly rejected the defendants’ post-trial attack on the constitutionality of 18 U.S.C.

§ 894 by employing the same rationale it had used before

trial; namely, that Congress’ power to regulate credit

extensions has been affirmed by the Supreme Court. See,

e.g., Perez v. United States, 402 U.S. 146 (1971). Thus, the

district court’s denial of the constitutional challenges raised

by Khilchenko and Babiychuk is affirmed.

III. CONCLUSION

We are convinced that the evidence submitted justified

the jury’s findings of guilt as to each defendant, that there

was no constructive amendment of the indictment with

which the defendants were charged, and that the district

court did not err in denying the defendants’ post-trial

motion for acquittal. The convictions of Khilchenko and

Babiychuk are AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-7-03