Berisha v. Lawson
| Decision Date | 02 September 2020 |
| Docket Number | No. 19-10315,19-10315 |
| Parties | Shkelzen BERISHA, Plaintiff - Appellant, v. Guy LAWSON, Alexander Podrizki, Simon & Schuster, Inc., Recorded Books, Inc., Defendants - Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jeffrey W. Gutchess, Brandon Perry Rose, AXS Law Group, PLLC, Miami, FL, Jason Michael Zoladz, Law Offices of Jason M. Zoladz, Santa Monica, CA, Daniel Edward Tropin, Lance A. Harke, PA, Miami Shores, FL, for Plaintiff-Appellant.
Elizabeth A. McNamara, John M. Browning, Taaj M. Reaves, Joanna E. Summerscales, Davis Wright Tremaine, LLP, New York, NY, Ryan Alan Roman, SunTrust Int'l Ctr., Miami, FL, for Defendant-Appellee Guy Lawson.
Michael Constantine Marsh, Attorney, Akerman, LLP, Miami, FL, Elizabeth A. McNamara, John M. Browning, Taaj M. Reaves, Joanna E. Summerscales, Davis Wright Tremaine, LLP, New York, NY, Ryan Alan Roman, SunTrust Int'l Ctr., Miami, FL, for Defendants-Appellees Alexander Podrizki, David Packouz, Simon & Schuster, Inc., and Recorded Books, Inc.
Jose Javier Teurbe-Tolon, Law Offices of Jose Teurbe-Tolon, PA, Miami, FL, for Service.
On Appeal from the United States District Court for the Southern District of Florida
Before MARTIN, NEWSOM, and O'SCANNLAIN,* Circuit Judges.
We must decide whether the son of the former Prime Minister of Albania, who alleges that he was defamed in a book that accused him of being involved in an elaborate arms-dealing scandal in the early 2000s, may succeed in his defamation action against the book's author and its publisher.
This case arises out of brief references to Shkelzen Berisha—the son of the former Prime Minister of Albania, Sali Berisha—in Guy Lawson's 2015 book Arms and the Dudes: How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History . The book tells the supposedly true story of Efraim Diveroli, David Packouz, and Alex Podrizki, three young Miami, Florida, men who became international arms dealers during the early 2000s.
We recount the tale as it is presented in Lawson's book. According to the book, in the early 2000s, Diveroli, a teenager in Miami, came up with a plan to open a business specializing in arms trading in order to fulfill defense contracts with the United States government. At that time, private companies were permitted to bid on large military contracts through a website operated by the federal government, FedBizOpps.com. Diveroli was originally inspired to enter the trade after working for his uncle's arms company while living with him for a few years in Los Angeles. After a falling out with his uncle, Diveroli returned to Miami and convinced his father to sell him an unused shell company to build his own arms-trading enterprise: AEY, Inc. Diveroli had significant early success bidding on small contracts unlikely to attract the attention of major arms dealers, and he quickly grew both his business's capital and his own connections with arms vendors. Eager to see his operation expand, Diveroli later brought on his childhood friend David Packouz to help him run the business.
Much of the book, and Berisha's alleged involvement in the operation, revolves around AEY's biggest procurement deal: a roughly $300 million contract that AEY won in the summer of 2006 to equip Afghan security forces fighting the Taliban. The contract required AEY to ship 100-million rounds of AK-47 ammunition to Afghanistan. At the time, AEY had a deal with a Swiss middleman, Heinrich Thomet, who had access to surplus ammunition in Albania that AEY could purchase at low prices. Thomet had purchased the ammunition through the Military Export Import Company ("MEICO"), an Albanian state-owned arms-dealing company. Packouz hired another childhood friend, Alex Podrizki, to travel to Albania, to collect the ammunition, and to load it onto planes to Afghanistan.
In Albania, Podrizki inspected the ammunition and found it packed in Chinese crates—potentially raising a significant issue, because federal regulations barred AEY from fulfilling the contract with Chinese ammunition. Packouz and Diveroli decided to use the ammunition anyway, with a plan to repackage the rounds to conceal their Chinese origin. AEY hired Albanian businessman Kosta Trebicka to coordinate the repackaging job. In the course of his work, Trebicka discovered that Thomet—the middleman between AEY and the Albanian state-owned MEICO—had charged AEY nearly twice the price he paid to MEICO for the ammunition.
According to Lawson's book, in May 2007, after Trebicka told Diveroli of the overcharges, Diveroli flew to Albania to renegotiate the price and to attempt to remove Thomet from the deal. Diveroli's supposed trip to Albania in 2007 is the subject of significant dispute by the parties here. According to the book, Diveroli and Podrizki met with Ylli Pinari, the director of MEICO, who drove the pair to an abandoned, half-completed building in Tirana, where he introduced them to Mihail Delijorgji. Delijorgji is described in the book as a "hard-looking" man who offered to lower the AEY's price if his own company were paid to repackage it instead of Trebicka's. As Lawson tells it, the Americans also saw another man, who appeared to be in his mid-20s, who was never introduced and who remained silent throughout. According to the book, Diveroli and Podrizki would later learn that this man was Berisha and that the entire operation was involved in organized crime. The relevant passages in the book read ( to the portions relating to Berisha added):
Ultimately, the group brokered a deal to purchase the ammunition at a discount, cutting Trebicka out of the scheme in favor of Delijorgji. Angered at being removed from the deal, Trebicka sought to blow the whistle on kickbacks that he believed Diveroli and AEY were paying to Albanian officials. Hoping to substantiate his claims, Trebicka recorded a telephone call with Diveroli, in which Diveroli told him that he could not help bring Trebicka back into the scheme because the corruption "went up higher, to the prime minister, to his son."
Trebicka's allegations—and his recorded conversation with Diveroli—became the source of a number of public reports about AEY's illegal scheme. Most notably, on March 27, 2008, the New York Times published a front-page story, which reported the allegations that AEY had illegally trafficked in Chinese ammunition and paid kickbacks to Albanian officials, including Pinari and Minister of Defense Fatmir Mediu. The story quoted Diveroli's statements that the scheme "went up higher to the prime minister and his son" and that Berisha was part of "this mafia." The article also reported on another recent matter Trebicka had blown the whistle on (and accused Berisha of being involved in): the tragic explosion of an Albanian munitions stockpile, which had killed 26 people in the village of Gerdec and for which Delijorgji and Pinari had been arrested. Several months later, the New York Times ran another article that reported the supposedly accidental death of Trebicka, and detailed suspicions that Trebicka had actually been murdered—perhaps with the involvement of the Berisha family—to prevent him from testifying about the AEY and Gerdec matters. Once again, the Times story quoted Diveroli's statement about the corruption going "all the way up" to Berisha.
At the same time, federal agents were investigating AEY for violating the embargo against shipping Chinese ammunition. On August 23, 2007, federal investigators raided AEY's offices in Miami while Podrizki was still abroad in Albania. In 2008, federal prosecutors charged Diveroli, Packouz, and Podrizki with defrauding the United States government. All three pled guilty and were convicted; Podrizki and Packouz were sentenced to house arrest, while Diveroli was sentenced to four years in prison.
Lawson first published an account of the AEY saga in a March 2011 feature article in Rolling Stone , entitled "Arms and The Dudes: How Two Stoner Kids from Miami Beach Became Big Time Arms Dealers – Until the Pentagon Turned on Them." It was told largely from "the dudes’ " perspective, whom Lawson found to be quite unlike the "hardened criminals" that the New York Times coverage and federal government had portrayed them to be. Relevant here, like the New York Times story, Lawson's article reported that AEY's deal to purchase ammunition from MEICO was structured to pay kickbacks to Albanian government officials and quoted Diveroli's statement that the scheme went "up higher to the prime minister and his son." Lawson's article also reported that the repackaging job was transferred to "a friend of the president's son." Though he was aware of the...
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