U.S. v. Ivezaj

• Decision Date: 11 June 2009
• Docket Number: Docket No. 06-3112-cr (L).,Docket No. 06-3372-cr (CON).,Docket No. 06-3296-cr (CON).,Docket No. 06-5908-cr (CON).,Docket No. 06-3339-cr (CON).,Docket No. 06-3275-cr (CON).
• Citation: 568 F.3d 88
• Parties: UNITED STATES of America, Appellee, v. Prenka IVEZAJ, Nardino Colotti, Alex Rudaj, Angelo Dipietro, Nikola Dedaj, and Ljusa Nuculovic,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

568 F.3d 88

UNITED STATES of America, Appellee, v. Prenka IVEZAJ, Nardino Colotti, Alex Rudaj, Angelo Dipietro, Nikola Dedaj, and Ljusa Nuculovic,^* Defendants-Appellants.

Docket No. 06-3112-cr (L).

Docket No. 06-3275-cr (CON).

Docket No. 06-3296-cr (CON).

Docket No. 06-3339-cr (CON).

Docket No. 06-3372-cr (CON).

Docket No. 06-5908-cr (CON).

United States Court of Appeals, Second Circuit.

Argued: May 13, 2008.

Decided: June 11, 2009.

Richard A. Greenberg (Steven Y. Yurowitz, on the brief), New York, N. Y., for Defendant-Appellant Prenka Ivezaj.

Richard Ware Levitt (Yvonne Shivers, on the brief), New York, N.Y., for Defendant-Appellant Nardino Colotti.

Harold Price Fahringer (Erica T. Dubno, on the brief), New York, N.Y., for Defendant-Appellant Alex Rudaj.

Jonathan Svetkey, New York, N.Y., for Defendant-Appellant Angelo DiPietro.

Diarmuid White (Brendan White, on the brief), New York, N.Y., for Defendant-Appellant Nikola Dedaj.

John Burke, Brooklyn, N.Y., for Defendant-Appellant Ljusa Nuculovic.

Jennifer G. Rodgers, Assistant U.S. Attorney (Timothy J. Treanor, Benjamin Gruenstein & Jonathan S. Kolodner, Asst. U.S. Attorneys, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.

Before: FEINBERG, MINER, and B.D. PARKER, Circuit Judges.

B.D. PARKER, JR., Circuit Judge:

Defendants-Appellants Prenka Ivezaj, Nardino Colotti, Alex Rudaj, Angelo DiPietro, Nikola Dedaj, and Ljusa Nuculovic (collectively "appellants" or "defendants") appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Cote, J.) on charges arising from their involvement in a racketeering enterprise. We affirm the convictions for the reasons stated in this opinion and in a companion summary order.

BACKGROUND

The indictment charged, and the trial evidence, considered in the light most favorable to the government, established that the appellants were members of the Rudaj Organization (the "Organization"), a violent Albanian racketeering organization based in New York City and Westchester County. The government alleged that the Organization sought to challenge, through violence and intimidation, the primacy of the New York City area's traditional organized crime families. Gambling was a particularly active area of competition. After operating illegal gambling businesses in the Bronx and Westchester County, the Rudaj Organization forcibly took over several illegal gambling clubs in Astoria, Queens and required other bars and restaurants to install and use its gambling machines. In addition to gambling, the Organization engaged in a variety of other illegal conduct, including extortion, loansharking, and bank fraud.

These activities generated an indictment initially containing twenty-one counts, fifteen of which were ultimately presented to the jury. We address here only those relevant to our opinion. Count One charged all of the appellants with substantive racketeering, and Count Two charged them with racketeering conspiracy. See 18 U.S.C. § 1962(c), (d). To establish the pattern of racketeering activity charged in Count One, the government alleged that the defendants engaged in a series of predicate acts, many of which were also charged as separate counts. Of these, Racketeering Acts Four and Five are at the center of our analysis. Racketeering Act Four alleged that Rudaj, Dedaj, Ivezaj, Nuculovic, and DiPietro attempted to extort, conspired to extort, and extorted control of an illegal gambling operation from Fotios Dimopoulos and Antonios Balampanis. Racketeering Act Five charged Rudaj, Colotti, Dedaj, Ivezaj, Nucolovic, and DiPietro with extorting and conspiring to extort the owners of a gambling business, known as "Soccer Fever," in violation of New York's extortion laws. See N.Y. Penal Law §§ 105.13, 155.05, 155.40. All defendants were also charged in Count Thirteen with using and carrying firearms in aid of racketeering. See 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2.

The government's evidence included the testimony of investigating officers, various cooperating witnesses and victims, consensual tape recordings, recorded conversations from Title III interceptions, as well as physical evidence seized during various searches. At the conclusion of the trial, the district court dismissed several of the counts. The defendants were then convicted on all but one of the remaining counts (but not all of the predicate racketeering acts) and were sentenced to substantial prison terms.

The defendants appeal on various grounds. We decide here that control over illegal intangible property — here a gambling operation — is "property" that can be "delivered" under New York's extortion statute. We also conclude that Balampanis was a proper "victim" of an inchoate extortion offense under New York law; that Count One qualified as a "crime of violence" under 18 U.S.C. § 924(c); and that the district court did not err in applying a role enhancement to Ivezaj's sentence. Additionally, we decide that the admission of evidence seized from Rudaj's home, if error at all, was harmless. Accordingly, we affirm the judgments.

DISCUSSION

I. Whether Illegal Intangible Goods Qualify as "Property" under New York Extortion Law

Defendants¹ challenge their convictions on Racketeering Acts Four and Five, which alleged violations of New York's extortion laws.² Their main contention is that the alleged acts are legally insufficient to sustain a conviction because control over illegal gambling does not constitute "property" under New York's extortion law and, even if it did, no property was "delivered" as is required by the statute. We review de novo the grant or denial of a Rule 29 motion for judgment of acquittal. United States v. Eppolito, 543 F.3d 25, 45 (2d Cir.2008); United States v. Florez, 447 F.3d 145, 154 (2d Cir.2006).

As proof of Racketeering Act Four, the government established that the Organization, through violence and intimidation, wrested control of certain illegal gambling operations in Astoria from the Lucchese Crime Family. In June of 2001, members of the Rudaj Organization seriously assaulted Antonios Balampanis, a close companion of Fotios Dimopoulos, a Lucchese family associate who supervised their Astoria operations. Dimopoulos later told Balampanis that his beating had been intended as "a message" for Dimopoulos, and Dimopoulos never returned to gambling clubs in Astoria following the assault.

Racketeering Act Five related to the Rudaj Organization's operation of "barbut," a lucrative gambling activity in Astoria. In early August 2001, a Gambino associate, Tommy Napoli, opened a gambling club known as "Soccer Fever" that directly competed with barbut and was operated by Mikhail Hirakis. On the club's first night, Soccer Fever brought in approximately $8,000. The next night, approximately fifteen members of the Organization, including the six defendants, stormed the club with guns on the instruction of Rudaj and broke up the game. They intended to assault Napoli, but when they were unable to locate him, they assaulted Hirakis instead. Rudaj intimidated the club's patrons: "I don't want to see nobody here. If I see [you] one more time, I swear to God ... I beat you ... one by one. I eat you up.... It's closed." That was the end of Soccer Fever, and the Organization subsequently extended its control of illegal gambling in Astoria.

Under New York law, "[a] person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will ... [c]ause physical injury to some person in the future...." N.Y Penal Law § 155.05(2)(e)(1). "Property" is defined as "any ... personal property ... or any article, substance or thing of value ... which is provided for a charge or compensation." N.Y. Penal Law § 155.00(1).

The district court instructed the jury that "[t]he term property includes not only money and other physical or tangible things, but also any valuable right considered as a source or element of wealth." Moreover, "[t]he pursuit of a business, including the solicitation of customers necessary to the conduct of the business, is considered property, as are the proceeds of a business." Further, the court charged that "[i]t does not matter ... if the victim's initial acquisition or possession of tangible property was illegal, or if the business in which the victim is engaged is illegal. Illegally obtained assets and businesses conducted in violation of the law can constitute property."

While acknowledging that an intangible good may constitute property under New York law, defendants challenge this instruction on the ground that "control over illegal gambling" does not constitute property because a legal right to the alleged property is required before it can qualify as property under New York law. They contend that because the Luccheses and the various victims had no legal right to operate an illegal gambling business, Racketeering Acts Four and Five did not sufficiently allege extortion.

We agree with the district court that an illegal gambling business can constitute property under New York law. The statute broadly defines "property" as "any ... personal property, real property ... substance or thing of value ... which is provided for a charge or compensation." N.Y. Penal Law § 155.00(1). Illegal intangible property, such as that contemplated here, fits within this expansive definition: control over illegal gambling is a "thing of value" which is "provided for ... compensation."

This understanding is consistent with the New York courts' recognition that intangible property as well as illegal tangible property are covered by the statute. For example, in People v. Garland, 69 N.Y.2d 144, 147, 512 N.Y.S.2d 796, 505 N.E.2d 239 (1987), the New York Court of...