United States v. Davit Davitashvili

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-1024
___________
UNITED STATES OF AMERICA
v.
DAVIT DAVITASHVILI,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-21-cr-00255-001)
District Judge: Honorable Mark A. Kearney
____________
Argued on February 7, 2024
Before: HARDIMAN, SCIRICA, and SMITH, Circuit
Judges.
(Filed: April 1, 2024)
Lisa Evans Lewis
Brett G. Sweitzer
Abigail E. Horn [Argued]
Federal Community Defender Office for the
Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Jacqueline C. Romero
Robert A. Zauzmer
Thomas M. Zaleski [Argued]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
A jury convicted Davit Davitashvili of violating 18
U.S.C. § 875(c), which makes it a crime to “transmit[] . . . any
threat to injure the person of another.” He appeals his judgment
of conviction, arguing that the District Court permitted the jury
to convict him for constitutionally protected speech. Because
2
we hold that Davitashvili’s threats were not protected speech
under the First Amendment, we will affirm.
I
A
This case arises from a Philadelphia love story that
ended badly. Appellant Davitashvili is a native of Georgia, a
country on the Black Sea. He immigrated to the United States
in 2004 and became naturalized in 2012. Davitashvili is a
mixed martial artist who once fought professionally.
In 2011, Davitashvili met Olga Volosevich, a Ukrainian
national living in Philadelphia. Volosevich had come to the
United States in 2009 and would become a citizen in 2022. She
began dating Davitashvili soon after meeting him, and they
spoke to each other in Russian throughout their relationship.
They married in August 2016. Shortly after, the couple visited
their native countries in Eastern Europe, where all of
Davitashvili’s relatives and most of Volosevich’s relatives still
lived.
When the couple returned to Philadelphia, their
relationship deteriorated. As Volosevich later testified,
Davitashvili “started abusing [her] physically, emotionally,
and verbally, and [her] life became intolerable.” App. 334–35.
Davitashvili “used to call [her] all kinds of nasty names,” such
as “a whore,” “an imbecile,” and “a bitch.” App. 390. He
likewise accused Volosevich of “plotting against him with all
[his] enemies” to “poison[] him” or get him “incarcerated for
being a pedophile.” Id. As to physical abuse, Volosevich
explained that Davitashvili would “hit [her] on the head with
3
an open hand,” which “for him . . . was like punching with a
fist.” App. 389.
Volosevich suggested divorce in early 2019 and left
Davitashvili in October of that year. The month after
Volosevich left him, Davitashvili departed the United States
for his native Georgia. Only then did Volosevich return to the
home that she and Davitashvili had previously shared. She
found the interior trashed and many of her valuables missing—
including Christian icons that were gifts from her mother.
B
Soon after Davitashvili left the United States, he and
Volosevich began messaging each other using Viber, a texting
app popular in Eastern Europe. These text messages were in
the Russian language, but translators prepared an English
version for trial, and the parties stipulated to its accuracy.
Davitashvili’s messages in early 2020 accused Volosevich of
“defend[ing] people who treated [him] despicably, who are rats
and fake, all of this is called betrayal and, respectively,
cheaters.” App. 400. He likewise texted Volosevich: “When I
return, I will get the FBI on your backs. . . . Don’t think that
this whore, your lawyer, will be able to help you and ending
with Georgie’s weapon.” App. 406. And in April 2020, he
messaged her: “Whatever it was that you mixed in for me, you
made it with him. . . . I let the person that I hated close to you
because of you. Where’s the justice? F*** you both.” App.
417.
Those messages culminated in a May 10, 2020
conversation for which Davitashvili was indicted. At 2:14 p.m.
Eastern Time, Davitashvili texted Volosevich:
4
I don’t f***ing care about anything. You are
wrong about me. When will I start? That’s when
it will all be over. Whore, I don’t f***ing care
even if the FBI is behind you. Will f*** you up.
I have nothing to lose. They will see that soon.
Whore, for those will approach, the only thing
that will stop me is death. Don’t f***ing care
about the before. Go ahead, whore, come clean
while you are the first slut. I have nothing to lose.
F*** all systems. Let me be the victim.
App. 428.
Davitashvili followed up just seven minutes later: “You
have two paths forward, either come clean, or the second one
is wheelchair. Make a choice, whore, together with your co-
workers that will soon be sucking my d***. Ha-Ha-Ha.” Id.This prompted Volosevich to respond: “Are you continuing to
threaten me? I am going to be in a wheelchair? I am going to
write a [police] report right now.” App. 429. Davitashvili
immediately replied: “No one knows what the future holds,
whore. Maybe even worse. Believe me, you will be f***ed
soon.” Id. He then wrote: “Go ahead and file for a divorce. I
will figure out the rest when I return.” App. 430.
At 3:02 p.m., Davitashvili added: “And after
everything, you are threatening me, whore. I am not going to
leave your DNA if I wish so, slut. I will start with Ukraine,
whore.” Id. Volosevich responded: “I am not threatening.” Id.Davitashvili wrote back at 3:52 p.m.:
Me neither. We will see what the future holds. I
cannot control myself anymore. You will see and
hear when I return what will happen to such a
5
KGB like yourself, whore. If I don’t have enough
time to everyone, then I will send many who is
needed to be sent, like c*** Pele and others, in
the name of the USA, whore. I have one life that
needs to end fairly when all of this won’t f***ing
matter. I want for everyone to know. I will not
just depart this life. I will take someone with me.
At least five, I swear. I don’t know how to gather
you all together, but at a minimum I will take 15
of you and will depart this life peacefully. I don’t
know how to gather you all together, d***s.
Thinking that after my life there won’t be another
life in the USA as despicable as what you have
caused for me, whore.
App. 430–31. Half an hour later, Volosevich replied: “I have a
seven-year-old brother. He did nothing bad to you. He is my
DNA. You want to kill him too?” App. 431. It took
Davitashvili almost eleven hours to respond: “May God give
him health. He will never grow up to be like you bitches. And
just leave my life altogether, please. Go file for a divorce,
please, and free me and everything will work itself out, whore.”
Id.Volosevich did not immediately report the threats
because Davitashvili was still abroad, and Volosevich believed
he would stay there. But a year later, Davitashvili’s sister told
Volosevich that Davitashvili was returning to the United
States. Volosevich then filed a complaint with the FBI about
the threatening messages, which led the FBI to open an
investigation. Davitashvili landed in New York in June 2021
and was arrested upon his arrival.
6
C
Davitashvili was charged with violating 18 U.S.C.
§ 875(c), the federal threats statute, by sending Volosevich
messages that “contained threats to injure, maim, and kill [her],
and to kill others.” App. 23. The indictment pinpointed the
Viber messages from May 10, 2020. At trial, the Government
argued that Davitashvili “was threatening to kill, not only Ms.
Volosevich, his wife at the time, they are now divorced, but
also five, ten, 15 other people.” App. 220. With no objection
from Davitashvili, the District Court gave the following jury
charge:
As you see from this verdict form, you must
consider whether the United States has proved
beyond a reasonable doubt that Davit
Davitashvili transmitted a communication
containing a threat in interstate or foreign
commerce. It reads, continues: On May 10, 2020,
containing threats to injure, maim, and kill Olga
Volosevich and to kill others. That’s the
question. No others. . . .
I’m now going to tell you what those words mean
as a matter of law. Mr. Davitashvili is charged
with one count of transmitting a communication
containing a threat in interstate or foreign
commerce. To find Mr. Davitashvili guilty of
this offense, you must find the United States
proved each of the following four things beyond
a reasonable doubt: First, Mr. Davitashvili
knowingly transmitted a communication;
second, the communication he sent, if you find
he did, contained a threat to kidnap or injure a
7
person or a group of people; third, Mr.
Davitashvili transmitted the threat for the
purpose of making a threat or knowing the
communication would be viewed as a threat; and
fourth, that Mr. Davitashvili transmitted the
communication in interstate or foreign
commerce.
App. 710–11.
The jury returned a guilty verdict later that same day.
The District Court then entered judgment against Davitashvili,
who timely appealed.1
II
Davitashvili argues that constitutional error tainted his
conviction. He concedes that threats to injure a particular
individual are unprotected “true threats.” But he contends that
his threats to injure “others” were constitutionally protected
speech. So the District Court erred by allowing the jury to
return a general guilty verdict based on either of two theories—
the “kill Olga Volosevich” theory, which Davitashvili
concedes was constitutionally sound, and the “kill others”
theory, which he claims violated the First Amendment.
Davitashvili did not preserve this argument in the
District Court. So we review for plain error. Fed. R. Crim. P.
52(b). Plain-error review involves four prongs, the last of
which is discretionary. United States v. Greenspan, 923 F.3d
138, 147 (3d Cir. 2019). To prevail under this framework,
1
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
8
Davitashvili must show (1) a legal error that is (2) obvious and
(3) has affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If these first three prongs are met,
the court has discretion to correct the error if (4) it seriously
affects the fairness, integrity, or reputation of judicial
proceedings. Id. “Meeting all four prongs is difficult, as it
should be.” Id. (cleaned up).
III
“From 1791 to the present, . . . our society, like other
free but civilized societies, has permitted restrictions upon the
content of speech in a few limited areas,” including obscenity,
defamation, and fighting words. R.A.V. v. City of St. Paul, 505
U.S. 377, 382–83 (1992). “‘True threats’ of violence”
constitute one such “historically unprotected category of
communications.” Counterman v. Colorado, 600 U.S. 66, 74
(2023). As the Supreme Court explained in Counterman:
“[t]rue threats are serious expressions conveying that a speaker
means to commit an act of unlawful violence.” Id. (cleaned up).
Twenty years before Counterman, the Supreme Court
instructed that “‘[t]rue threats’ encompass those statements
where the speaker means to communicate a serious expression
of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.” Virginia v.
Black, 538 U.S. 343, 359 (2003) (emphasis added). Despite
Black’s use of “encompass”—a synonym of “include,” see
Merriam-Webster’s Collegiate Dictionary (1999), s.v.,
encompass—Davitashvili and the Government agree that this
sentence comprehensively defines the category of true threats.
The dissent in Counterman treated this part of Black as
providing the necessary conditions for a statement to count as
a true threat. See Counterman, 600 U.S. at 113 (Barrett, J.,
9
dissenting). And we have suggested that Black exhaustively
defines true threats, without holding as much. See Gov’t of V.I.
v. Vanterpool, 767 F.3d 157, 167 (3d Cir. 2014).2 Giving
Davitashvili the benefit of the doubt, we assume, without
deciding, that Black comprehensively defines the category of
true threats. See Waters v. Churchill, 511 U.S. 661, 680 (1994);
First Amend. Coal. v. Jud. Inquiry & Rev. Bd., 784 F.2d 467,
472 (3d Cir. 1986).
Under this assumed definition, a communication must
threaten “a particular individual or group of individuals” to
qualify as an unprotected true threat. Black, 538 U.S. at 359.
Citing this particularization requirement, Davitashvili
challenges his conviction on two bases. He argues that: (1) his
threat to kill “others” did not target a particular individual or
group of individuals; and (2) the jury was instructed it could
convict without finding that he threatened a particular
individual or group of individuals. We disagree with both
2
As the Eleventh Circuit has noted, the Supreme Court “never
stated that the category of true threats is limited to such
statements, only that the category ‘encompass[es]’ them.”
United States v. Fleury, 20 F.4th 1353, 1373 (11th Cir. 2021)
(alteration in original). But other courts of appeals have read
Black as comprehensively defining the category of true threats.
See United States v. Dutcher, 851 F.3d 757, 761 (7th Cir.
2017); United States v. Floyd, 458 F.3d 844, 848 (8th Cir.
2006); United States v. Bagdasarian, 652 F.3d 1113, 1116 (9th
Cir. 2011); United States v. Wheeler, 776 F.3d 736, 743 (10th
Cir. 2015). We need not take sides in this circuit split to resolve
this appeal.
10
arguments and hold that there was no error under the Free
Speech Clause of the First Amendment.
A
Davitashvili argues that his messages, insofar as they
targeted people other than Volosevich, were protected speech
because they “did not communicate a threat to either ‘a
particular individual or group of individuals.’” Davitashvili Br.
19 (quoting Black, 538 U.S. at 359). Assuming that
particularization is an essential element for a threats
conviction, we must determine whether a “rational trier of fact
could have found the essential element[] of the crime beyond a
reasonable doubt.” United States v. Zayas, 32 F.4th 211, 217
(3d Cir. 2022) (cleaned up), cert. denied, 143 S. Ct. 830 (2023).
The trial record shows that the jury could have found beyond a
reasonable doubt that Davitashvili’s threats to injure “others”
targeted particular people.
Davitashvili was indicted for the text messages he sent
on May 10, 2020. At 2:21 p.m. that day, Davitashvili texted
Volosevich: “You have two paths forward, either come clean,
or the second one is wheelchair. Make a choice, whore,
together with your co-workers that will soon be sucking my
d***.” App. 428 (emphasis added). In other words,
Davitashvili was warning Volosevich and her “co-workers” to
make a choice between coming clean and the wheelchair. From
this message, a jury could find that Davitashvili was
threatening to injure both Volosevich and her “co-workers.”
Around 40 minutes after the “wheelchair” message,
Davitashvili wrote to Volosevich: “I am not going to leave
your DNA if I wish so, slut. I will start with Ukraine, whore.”
App. 218–19. As Volosevich testified, she took this to mean
11
that Davitashvili “will kill my family and leave no DNA of
ours.” App. 519. And as the Government emphasized at trial,
it took Davitashvili until the next day to explain that he did not
intend to kill Volosevich’s brother.
Perhaps most of all, the 3:52 p.m. message shows that
the “others” were particular people, at least one of whom was
named:
I cannot control myself anymore. You will see
and hear when I return what will happen to such
a KGB like yourself, whore. If I don’t have
enough time to everyone, then I will send many
who is needed to be sent, like c*** Pele and
others, in the name of the USA, whore. I have
one life that needs to end fairly when all of this
won’t f***ing matter. I want for everyone to
know. I will not just depart this life. I will take
someone with me. At least five, I swear. I don’t
know how to gather you all together, but at a
minimum I will take 15 of you and will depart
this life peacefully.
App. 430–31.
As the Government argues, a jury could interpret this
message as threatening the couple’s friends and acquaintances.
Davitashvili wrote: “If I don’t have enough time to everyone,
then I will send many who is needed to be sent, like c*** Pele
and others.” App. 430. A jury could find this meant that
Davitashvili was threatening to kill as many people on his
enemies list as he could—including Pele—in the limited time
he had. Volosevich testified that Pele was Davitashvili’s
friend. And she also testified that, in previous phone
12
conversations, Davitashvili “gave some names” of the five to
fifteen people he intended to kill. App. 434. Moreover, as the
Government points out, the message makes little sense if these
people were not specific individuals. Davitashvili spoke of the
need to “gather [them] all together,” App. 430, but there would
be no such need if he were not targeting particular people.
Davitashvili’s earlier messages also contextualize the
meaning of the May 10 text messages. In a March text
message, Davitashvili complained that Volosevich was taking
the side of “other people who didn’t treat him well.” App. 411.
Volosevich testified: “He used to say that people at his old
work are his enemies; places where he used to work, people are
his enemies; neighbors are his enemies; as well as his
acquaintances and friends.” App. 412. Volosevich also
discussed an April conversation in which Davitashvili accused
Vaha, his and Volosevich’s “mutual friend,” of “using steak
sauce, mix it in, to poison him with it.” App. 420–21. Based on
these facts, a jury could find that the five to fifteen people
whom Davitashvili expressed an intent to kill were
acquaintances of Davitashvili and Volosevich.3
Our sister courts have held that threats less
particularized than Davitashvili’s counted as unprotected true
3
Davitashvili contends that the Government’s theory—that the
threat was directed at acquaintances, associates, and enemies
whom the couple knew—is newly presented on appeal. Not so.
The Government argued below that the “others” whom
Davitashvili threatened to kill were people he wanted “to settle
accounts and scores with.” App. 652. In other words, as
Volosevich testified extensively, they were people whom
Davitashvili knew and with whom he had interpersonal
conflicts.
13
threats that supported criminal convictions. For example, in
United States v. Khan, the defendant posted Facebook
messages threatening to kill “‘college students,’ ‘vulnerable
individuals,’ people ‘walking their dogs,’ ‘high net worth
individuals,’ and ‘witnesses’ that ‘get in the way,’” claiming
“‘the loop area of Chicago to the Northern Lincoln Park area’
as his ‘free kill zone.’” 937 F.3d 1042, 1046 (7th Cir. 2019)
(cleaned up). Khan argued that these messages were not
sufficiently targeted to qualify as true threats, but the Seventh
Circuit disagreed. See id. at 1055. The court recognized that
Khan had threatened anyone “who happened to be in the wrong
place (Khan’s defined ‘free kill zone’) at the wrong time
(before his June 8, 2015 flight to Pakistan).” Id. Yet this
sufficed to “infer Khan’s intent to commit an act of unlawful
violence towards a particular group of individuals.” Id. The
threat of violence directed at an entire city region before
Khan’s departure abroad counted as sufficiently particularized.
So too here with Davitashvili’s threat of violence directed at
some fifteen acquaintances upon his return to the United
States.
The Tenth Circuit’s decision in United States v. Stevens,
881 F.3d 1249 (10th Cir. 2018), also supports our conclusion
that Davitashvili’s threats toward “others” (that is, people other
than Volosevich) were sufficiently particularized. In Stevens,
the defendant “targeted messages of deadly action at [Tulsa
Police Department] officers generally.” 881 F.3d at 1255.
Taking particularization as a requirement for a true threat, see
id. at 1253, the court held that “a reasonable jury could find
from their language and context that [these messages] were
true threats,” id. at 1255. The group Davitashvili targeted—
14
fifteen associates—is more discrete than the entire police
department in Stevens.
B
We next turn to Davitashvili’s argument that the jury
charge was legally erroneous. As part of the jury instructions,
the District Court read the language of the verdict form, which
was drawn from the indictment:
As you see from this verdict form, you must now
consider whether the United States has proved
beyond a reasonable doubt that Davit
Davitashvili transmitted a communication
containing a threat in interstate or foreign
commerce. It reads, continues: On May 10, 2020,
containing threats to injure, maim, and kill Olga
Volosevich and to kill others.
App. 710 (emphasis added). Davitashvili contends that the
District Court erred in including the words “to kill others” in
the instruction. This instruction, Davitashvili argues, permitted
the jury to convict either on a valid theory (Davitashvili had
threatened Volosevich) or on an invalid theory (Davitashvili
had threatened unspecified “others”) such that it is impossible
to tell which theory undergirded the conviction. According to
Davitashvili, the inclusion of this erroneous alternative theory
requires us to vacate the conviction and remand for a new trial.
See United States v. Wright, 665 F.3d 560, 570–72 (3d Cir.
2012).
We disagree. Jury “instructions must be evaluated not
in isolation but in the context of the entire charge.” Jones v.
United States, 527 U.S. 373, 391 (1999). After reading the
15
allegedly erroneous words of the indictment and verdict form,
the District Court summarized the law: “To find Mr.
Davitashvili guilty of this offense, you must find the United
States proved . . . beyond a reasonable doubt . . . [that] the
communication he sent, if you find he did, contained a threat
to kidnap or injure a person or group of people.” App. 710
(emphasis added).
The jury instruction thus does not contain the error that
Davitashvili alleges. To convict, the jury had to find that
Davitashvili’s communication “contained a threat to kidnap or
injure a person or group of people.” App. 710. The instruction
accurately summarizes the statutory text, which makes it a
crime to transmit, in interstate or foreign commerce, “any
communication containing any threat to kidnap any person or
any threat to injure the person of another.” 18 U.S.C. § 875(c).
And it broadly tracks the language of Virginia v. Black which,
as we assume, requires a threat to injure a “particular individual
or group of individuals.” 538 U.S. at 344.
Davitashvili objects to the jury instruction because it
refers to a “person or group of people” rather than a “particular
person or group of people.” But instructing that there must be
a threat to “injure a person or group of people” rules out
convicting based on “general[ized]” threats to no one in
particular. Counterman, 600 U.S. at 113 (Barrett, J.,
dissenting). And, at one point, Virginia v. Black itself described
a “threat to a person or group of persons” as “constitutionally
proscribable,” without the extra adjective “particular.” See
Black, 538 U.S. at 360.
We also note that the Seventh Circuit approved the
language here—i.e., the communication must threaten violence
against “a person or a group of people,” App. 710—holding
16
that there was “no error in the district court’s jury instructions,”
Khan, 937 F.3d at 1052. That court first quoted the relevant
language of the jury instruction: “A true threat is a serious
expression of intent to commit unlawful physical violence
against another person or a group of people.” Id. at 1051. It
then quoted the relevant language from Virginia v. Black,
describing a true threat as “a serious expression of an intent to
commit an act of unlawful violence to a particular individual
or group of individuals.” Id. (cleaned up). And it concluded
that the jury instructions “accurately and thoroughly
summarized applicable law.” Id. We agree with that well-
reasoned decision of our sister court.
* * *
As the trial record in this case shows, a reasonable jury
could have found that Davitashvili’s threats against people
other than Volosevich targeted particular individuals. And the
District Court did not err in instructing the jury that it could
convict based on Davitashvili’s threats to “kill others”: the jury
had to find that Davitashvili had threatened to “injure a person
or a group of people.” App. 710. We accordingly hold that no
error tainted Davitashvili’s conviction.
IV
Even if our conclusion of no error were mistaken,
Davitashvili’s conviction would still stand for want of plain
error. To overturn his conviction under plain-error review,
Davitashvili must show not only that the District Court erred,
but also that the error was obvious, that it affected his
substantial rights, and that it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See
17
Puckett, 556 U.S. at 135. He has not met any of the latter three
prongs.
A
An error cannot be obvious when it is “subject to
reasonable dispute.” Id. The Supreme Court has explained that
the category of true threats “encompass[es] . . . serious
expression of an intent to commit . . . violence to a particular
individual or group of individuals.” Black, 538 U.S. at 359(emphasis added). But the Court has never held that a threat
must be particularized to count as a true threat. By citing a
dissent for the proposition that a “statement must . . . threaten
violence ‘to a particular individual or group of individuals’” to
qualify as a true threat, Davitashvili effectively concedes as
much. See Davitashvili Br. 17–18 (quoting Counterman, 600
U.S. at 113 (Barrett, J., dissenting)). Davitashvili also cites no
precedential court of appeals case—and we have found none—
overturning a conviction because the threat was not sufficiently
particularized. So one could reasonably dispute whether
particularization is a necessary condition for a statement to
qualify as a true threat.
B
An error goes to the defendant’s substantial rights when
the defendant can show that it “affected the outcome of the
district court proceedings.” Puckett, 556 U.S. at 135. In other
words, the defendant ordinarily “must show a reasonable
probability that, but for the error, the outcome of the
proceeding would have been different.” Molina-Martinez v.
United States, 578 U.S. 189, 194 (2016) (cleaned up).
18
Davitashvili has not shown that, but for the inclusion of
the “kill others” theory at trial, the outcome would have been
different. For starters, it is implausible that the jury convicted
Davitashvili for threatening “others,” but not for threatening
Volosevich. The threats against Volosevich were the focus of
the Government’s case. As the jury heard at trial, Davitashvili
repeatedly threatened violence toward Volosevich. For
example, he messaged her: “Whore, I don’t f***ing care even
if the FBI is behind you. Will f*** you up,” App. 428; “You
have two paths forward, either come clean, or the second one
is wheelchair,” id.; and “Believe me, you will be f***ed soon,”
App. 429.
Even Davitashvili’s threats of violence toward other
people included Volosevich. In the message that most
obviously targeted multiple people, Davitashvili wrote to
Volosevich: “I don’t know how to gather you all together, but
at a minimum I will take 15 of you and will depart this life
peacefully. I don’t know how to gather you all together.” App.
430–31 (emphasis added). In another message that plainly
threatened individuals other than Volosevich, Davitashvili
wrote to Volosevich: “You have two paths forward, either
come clean, or the second one is wheelchair. Make a choice,
whore, together with your co-workers that will soon be sucking
my d***.” App. 428 (emphasis added). Davitashvili was
threatening other people as part of a group that included
Volosevich. So omitting the “kill others” theory likely would
not have changed the outcome: the jury probably would have
convicted Davitashvili for the threats to Volosevich alone.4
4
That the jury was briefly deadlocked does not change our
conclusion. The jury had deliberated for less than four hours
before reaching an impasse. After hearing the Allen charge
19
C
Finally, any error would not seriously affect the
fairness, integrity, or public reputation of judicial proceedings.
This prong “inherently requires a case-specific and fact-
intensive inquiry.” Rosales-Mireles v. United States, 138 S. Ct.
1897, 1909 (2018) (cleaned up). In this case, Davitashvili, a
former professional fighter, told Volosevich that he “w[ould]
f*** [her] up,” and that she “ha[d] two paths forward, either
come clean, or the second one is wheelchair.” App. 428.
Threatening one person alone suffices for conviction under 18
U.S.C. § 875(c), which criminalizes “any threat to injure the
person of another.”
“Here, the Government presented overwhelming
evidence” that Davitashvili had threatened Volosevich in
violation of § 875(c). United States v. Vazquez, 271 F.3d 93,
105 (3d Cir. 2001). Even if it had been error to permit a
conviction on the alternative theory that Davitashvili had
threatened to “kill others,” that error would not seriously affect
the fairness, integrity, or reputation of the proceedings. So
Davitashvili falls well short of satisfying the onerous plain-
error standard.
* * *
For the reasons stated, Davitashvili’s trial was error-
free. And even had error occurred, it would not have been
obvious, would not have affected Davitashvili’s substantial
rights, and likewise would not affect the fairness, integrity, or
around 2:00 p.m., see Allen v. United States, 164 U.S. 492,
501–02 (1896) the jury delivered its guilty verdict around 4:00
p.m. So the jury deliberated for only six hours.
20
reputation of the proceedings. We will therefore affirm the
judgment of conviction.
21