Finally, the Government proved at trial numerous
incidents in which some or all of the defendants threatened or
intimidated individuals in connection with the business of the
Rudaj Organization, including the following individuals: (1) Lupe
Silva-Hernandez, a bartender at Misale’s bar, the Puerta Roja,
who was screamed at by Dedaj and Little Nicky as they demanded
the bar keys, until she called the police and then closed the bar
for the night out of fear (Tr. 2995-3102); (2) all of the patrons
of Soccer Fever to whom Rudaj said, if they come back, he will
beat them one by one (Tr. 7051, GX 1260-T at 13); (3) Christos
Vrahimes, the manager of the Grecian Cave who saw Nuculovic pull
gun and put it on the table, and the waiter at the Grecian Cave
who stepped back when Nuculovic pulled the gun (Tr. 4827; GX
1262-T at 18); (4) Antonios Custodio, the owner of Calda’s Bar,
and his wife who were confronted by DiPietro, Ivezaj, and Genua
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and were told by DiPietro to get rid of existing gambling machine
and take a machine from the Rudaj Organization or he would have
problems (GX 1250-T at 11); (5) Peter Forchetti, John LeCourte,
Charles Figueroa, and all of the strippers and other employees at
the Mirage, many of whom quit, who were intimidated by Dominic
Rudaj, sent by Colotti and Rudaj to cause trouble at the Mirage
(GX 1270-T at 6-7, 61); (6) Nicos Christoforou, Patricia Zucker,
Billy Schwartz and Schwartz’ bodyguard, each of whom were
intimidated in connection with the Cosmos Bar extortion (Tr.
5862-66); (7) Kypros Solomonidis, the 25-year-old waiter at the
Zodiac café, who borrowed money from Rudaj and was told by Rudaj
“I’ll give you a beating right in front of the Zodiac. I’ll make
you look like a piece of shit,” (GX 1260-T at 3-5), was lectured
by Rudaj with various stories of violence, and then was made to
feel Rudaj’s shotgun wound (Tr. 6561-62; GX 1259-T at 8-9; GX
1265 at 2-7); (8) the various individuals who sided with
Nuculovic when the Rudaj Organization fractured, including John
Tirana, who was threatened by Dedaj outside of Skutarija until he
was shaking (Tr. 6861-63); Dimitri who Rudaj threatened not to
come into the Bronx or the Astoria clubs (GX 1260-T); and Galip,
who was threatened by Rudaj and Dedaj with a beating (Tr. 6961-
74, 7254); (9) Louie Nuculovic, who himself was confronted by
Rudaj, Dedaj, Colotti and others as the group sought to shut down
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his competing barbout during the factional dispute (Tr. 7239-56);
(10) Lenny Colotti, whom Nuculovic discussed killing, and being
killed by, such that the FBI had to step in and give warnings to
prevent any violence, (Tr. 7305-10, 7331); (11) Arnold Squitieri,
the Acting Boss of the Gambino LCN family, who was confronted
with guns by various members of the organization at a New Jersey
gas station (Tr. 6698; GX 1262-T at 23-24; GX 1251 at 9-10); (12)
Joseph Caridi, the consigliere of the Lucchese LCN family, who
was told by Rudaj would be at war with the Rudaj organization if
he did not make a deal for Astoria (GX 1262-T at 16); (13) Vinnie
Artuso, a soldier in the Gambino LCN family, who was intimidated
by between 20 and 30 people, including Rudaj, Ivezaj, Colotti,
Dedaj, Nuculovic, DiPietro and others at social club in Arthur
Avenue in connection with a turf battle (Tr. 1451, 1486); (14)
the two Italian kids who tried to force machines into Skutarija
and were met and turned away by Rudaj, Colotti, Ivezaj, and
DiPietro (Tr. 1431); (15) the owner of Rao’s Restaurant in
Manhattan who was confronted by Rudaj, Colotti, Ivezaj, Dedaj,
DiPietro, Nuculovic and 30 others in a dispute over a table that
signified status in the organized crime world (Tr. 1554; GX 1251-
T at 10); (16) the owner of Valbella’s restaurant in Greenwich,
Connecticut who was visited by members of the Rudaj Organization
after he drove a Ferrari down Arthur Avenue and was later making
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payments to the organization (Tr. 1516); (17) the owner of the
Morris Park Inn in the Bronx, who was forced by Colotti,
DiPietro, and Angelo Capalbo to take two gambling machines
against his will (Tr. 1425); (18) numerous debtors who were late
on making loanshark payments, including “Mikey Mush,” who paid a
sports debt after he was told he would have to meet with Rudaj,
(Tr. 1454), Little Sal, who Ivezaj threatened to throw down the
stairs at the Adee Street club if he was late in making payments
(Tr. 1505); Little Tony, whose car Ivezaj seized because he was
late on repaying a loan (Tr. 1507) (GX 120D); “Frankie Mutz,” who
Ivezaj threatened at Rockland County pizzeria because of late
payments, (Tr. 1513); and Richie Signore, a Tuckahoe barber, who
was given a message from DiPietro by DiPietro’s son, that he
would never open again if late on his payments (GX 1117); (19)
Maurizio Sanginiti, who Colotti threatened with a beating in the
basement of the Café Dion if he did not make good on his Ponce de
Leon loan (Tr. 1430); and (20) Nicos Kyprianou, who was told by
Ivezaj, even as Kyprianou wore a body wire, that nobody
cooperates against Albanians because if you cooperate against an
Albanian, even 100 years later, they will kill your family. (GX
1261-T).
This litany of violence and threats can only be
described as shocking, depraved, and morally repugnant. Without
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doubt, the sheer volume of threats and violence perpetrated by
these defendants in this matter demonstrates that each of the
defendants were fully committed to using violence whenever
necessary to further the interests of the Rudaj Organization,
which of course was solely to make money through illegal means.
These facts should be considered by the Court in fashion the
sentences in this matter.
II. ISSUES RELATED TO INDIVIDUAL DEFENDANTS
A. Colotti Is Appropriately In Criminal History
Category III
Colotti argues that the Probation Office
inappropriately added two points to his offense because he was on
parole in 1991, pursuant to U.S.S.G. § 4A1.1(d). (Colotti Ltr.
5). Colotti argues primarily: (1) that the jury acquitted him of
the attempted murder of Gaetano Peduto, the only racketeering act
in the early 1990s; and (2) the Government’s theory was that the
Rudaj Organization began with the attempted murder of Gaetano
Peduto. These arguments are without merit.
Even setting aside the Peduto attempted murder (which,
of course, the Court may consider regardless of the jury
verdict), there was ample evidence that Colotti was heavily
involved in illegal gambling in the early 1990s, as he owned
several cafes that housed gambling machines, card games, and
bookmaking. Gaetano Peduto testified that he learned Colotti was
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involved with these cafes when Peduto “was 16, 17, 18 [i.e. 1988,
1989, 1990], I don't remember exactly.” (Tr. at 3345). While
Racketeering Act One alleged that the defendant operated an
illegal gambling business beginning “in or about 1993," Colotti’s
participation in these gambling cafes was certainly part of the
same course of conduct, that is, relevant conduct, both for the
RICO crimes and the stand-alone charges of operating, and
conspiracy to operate, an illegal gambling business.
See Application Note 4 to U.S.S.G § 4A1.1 (“Two points are added
if the defendant committed any part of the instant offense (i.e.
any relevant conduct) while under any criminal justice
sentence”). As such, because Colotti operated an illegal
gambling business while on parole, the Probation Department
accurately calculated his criminal history.
B. Ivezaj’s Participation in Various Offenses
Defendant Prenka Ivezaj argues for a lenient sentence
based on his self-serving assertion that the evidence in this
matter demonstrated no more than the fact that Ivezaj was merely
present for several of the offenses, including the beating of
Antonios Balampanis, the Calda’s Bar attempted extortion, and the
Cosmos Bar extortion. (Ivezaj Ltr. 9-10, 12-15). Without going
into great detail, these assertions are totally inconsistent with
the record and with the conclusions of the jury that convicted
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Ivezaj of each of these offenses. In crafting his argument,
Ivezaj chooses to selectively feature portions of the evidence
while failing completely to address the volumes of evidence in
this matter that demonstrate that Ivezaj was a manager in the
illegal gambling operations of the Rudaj Organization and that
these operations were regularly expanded by members of the
organization, including Ivezaj, through extortionate conduct. In
light of the volumes of evidence in this matter, it is clear that
Ivezaj’s intent was to instill fear in various individuals to
obtain gambling territory in furtherance of the interests of the
Rudaj Organization. As such, the Court should reject Ivezaj’s
mere presence arguments.
III. DISCUSSION OF § 3553(A) FACTORS
For the reasons explained below, there is no basis to
deviate from the applicable Guidelines Range in sentencing any of
the defendants.
A. Defendant Rudaj
Defendant Rudaj identifies several factors that he
believes warrant leniency in his sentence, including: (1) his
allegation that the grouping analysis proposed by the Probation
Department overstates the offense level (Rudaj Ltr. 21); (2) his
contention that the seven-year consecutive sentence based upon
the 924(c) firearms conviction results in an unduly harsh
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sentence (Rudaj Ltr. 21-22); (3) his contention that his violent
character was exaggerated by the Government (Rudaj Br. 22-23);
and (4) his contention that his family will suffer as a result of
his extended incarceration (Rudaj at 23-24).
With respect to the grouping analysis, Rudaj contends
that “the heart of this trial was a gambling conspiracy which was
fed by extortionate activity which yielded additional gambling
activity” and that the resulting offense level “far exceeds the
combined severity of these crimes.” (Rudaj Ltr. 21). The
evidence presented by the Government at trial, however,
contradicts this mild characterization of Rudaj’s offense
conduct. As overwhelmingly demonstrated by the Government at
trial, this case was permeated to the core with acts of violence,
many of which Rudaj himself participated in and supervised.
Quite simply, at the heart of this matter was a group of
individuals whose unfettered greed was advanced by their complete
commitment to using threats, force, and violence to intimidate
people, to take property from others, and to expand their illegal
empire. These facts justify a severe sentence that is, at a
minimum, consistent with the raw guidelines grouping calculation,
and Rudaj’s blatant attempt to minimize his conduct is to no
avail.
Similarly, Rudaj’s argument that the imposition of a
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seven-year sentence for the § 924(c) conviction results in an
overly harsh sentence also fails. Rudaj argues that the seven
year sentence results from conduct that is “already subsumed, at
least in a practical and intellectually honest sense, in the
extortion, loan sharking, and debt collection convictions.”
(Rudaj Ltr. 22). This argument completely overlooks the fact
that, as a result of the imposition of a sentence for the §
924(c) conviction, the defendant is subject to no guidelines
enhancement on any of the offenses for possession and use of a
firearm. In this matter, the Government presented substantial
evidence that Rudaj regularly carried firearms and often used
them in connection with his offenses. This specific conduct is
the basis of the § 924(c) conviction and is not reflected in the
Guidelines calculation in any way. Indeed, as a result of
Rudaj’s single § 924(c) conviction predicated upon the entire
course of the racketeering offenses, Rudaj has the good fortune
of having all of his episodes of firearms possessions subsumed
within a single 924(c) count and completely extracted from the
guidelines calculation in this matter. As such, the resulting
sentence is not overstated and in fact is exactly what is called
for by the statute given the offense conduct in this matter.
Rudaj also argues for a reduced sentence based on the
assertion that his violent nature was exaggerated by the
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Government. A quick review of virtually any portion of the
record dispels this argument and established that Rudaj did not
hesitate to use violence, used it often, and supervised a group
of individuals that were similarly committed to the use of
violence. Indeed, given the evidence presented by the Government
at the trial of this matter, it would be hard to exaggerate
Rudaj’s violence nature.
Finally, in seeking a sentence below the otherwise-
applicable Guidelines range, defendant Rudaj cites to his family
circumstances, including the hardship imposed upon his wife and
children as a result of his offenses. Rudaj, however, does not
present a compelling case for a reduced sentence based on his
family situation. His family, who no doubt loves him a great
deal, does not present an unusual case, and is merely
representative of the harm is that all too often inflicted upon
family members by an individual who commits serious crimes.
Rudaj’s family circumstances should not be a source of leniency.
B. DefendantColotti
Defendant Colotti points, essentially, to one factor
that he believes warrants a sentence below the applicable
Guidelines range: the terrible effects that his incarceration
will have on his children, with whom he is exceptionally close.
While Colotti does not seek a downward departure based on family
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circumstances, he does cite several cases involving such a
downward departure as instructive. Nevertheless, the primary
lesson to be learned from the Guidelines is that departures in
this area should be rare, as the disruption to a defendant’s
family life is a terribly unfortunate, yet inevitable,
consequence of a defendant’s criminal activity. See U.S.S.G. §
5H1.6 (“[f]amily ties and responsibilities are not ordinarily
relevant in determining whether a sentence should be outside the
applicable guideline range”); see also United States v. Tejeda,
146 F. 3d 84, 87 (2d Cir. 1997) (“Family circumstances are not a
forbidden basis for a downward departure, but they ‘are a
discouraged basis for departure because the Commission has deemed
them to be not generally relevant.’”); United States v. Londono,
76 F.3d 33, 35 (2d Cir. 1996) (“[d]isruption of the defendant’s
life, and the concomitant difficulties for those who depend on
the defendant, are inherent in the punishment of
incarceration”(internal quotation marks omitted).
As such, courts have generally limited departures to
cases in which the defendant was the sole caregiver of another,
or the defendant’s family was uniquely dependent on him. See,
e.g., United States v. Johnson, 964 F.2d 124, 128-30 (2d Cir.
1992) (upholding departure when the defendant was the sole
caretaker whose extraordinary parental responsibilities were
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greater than those of an ordinary single parent because she was
the sole source of support for three young children, including an
infant, and of the young child of her institutionalized
daughter); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir.
1991) (departure upheld where defendant's wife, two young
children, disabled father who needed help getting in and out of a
wheelchair, and grandmother were dependent on defendant for
economic and other support). Of course, the Court’s discretion
to grant a non-Guidelines deviation under Section 3553(a) factors
is greater than was available in these cases; nevertheless, the
Guidelines identification of cases that are unusual enough to
warrant leniency is certainly instructive. And while the
defendant’s relationship with his children appears to be very
close, that alone is not a sufficiently unusual circumstances to
justify deviating from the generally applicable Guidelines range.
C. DefendantDedaj
In seeking a sentence below the otherwise-applicable
Guidelines range, defendant Dedaj primarily cites to his family
circumstances, including his wife, four children and ill mother.
Like defendant Colotti, however, Dedaj does not present a
compelling case for a reduced sentence based on his family
situation. His family, which is marked by a wife and children
who love him a great deal, is not unusual, and to the extent his
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situation falls outside the norm, that is to his and his wife’s
credit but should not be a source of leniency.
In support for leniency, Dedaj does little more than
minimize the seriousness of his offense, and at time glorifies
it, by characterizing one vicious beating as “righting a wrong,”
and describing the attitude he had prior to his arrest generally
as “Quixote-like.” (Dedaj Ltr. 20). Dedaj minimizes, for
example, the role he played in the offense, arguing that his
“primary responsibility was the installation, servicing and
repair of the gambling machines, as well as making the
collections,” while ignoring the overwhelming evidence that he
was one of the three leaders of the organization and that he was
in charge of the Organization’s loansharking activities. See,
e.g., Tr. 6609 (Kyprianou testifying that Rudaj said that Dedaj
was the third in rank in the Organization, but that Dedaj was
first in toughness). Dedaj also argues that he never personally
used, carried or possessed a weapon, despite the testimony of
Hirakis that everyone at Soccer Fever had a gun, and more
saliently, Rudaj’s comment in a tape-recorded conversation that
he prefers that only one or two of his men carry weapons at a
time, and that he likes it when Dedaj is one of them. (GX-1262-
T, at 22 (“‘One or two guys carry. God forbid the cops catch us
because they put everybody with a fucking thing.’ But me, I
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love, I love to fucking carry, and having fucking Nicky carry
too. Two guys . . .”)). Rudaj also stated during the same
recorded conversation, in recounting the stand-off with the
Gambino Family at the gas station, that Dedaj was the one that
pulled a gun, pointed it a gas pump, and threatened to blow the
gas station up. Id. at 23.
While defense counsel states that he knows “personally”
of the “overwhelming sense of remorse and guilt” that Dedaj feels
for his offenses, Dedaj’s downplaying of his crimes and his role
in the Rudaj Organization and his characterization of his violent
actions (as motivated by an insult, in the case of the beating of
Kostas Panzialis, and a date rape in the case of the beating of
the “bread man”) suggests that he has not truly recognized the
wrongfulness of his actions. In its opening, the Government
characterized Dedaj as “the Organization’s primary enforcer, the
one who could instill the greatest fear in the victims of the
Rudaj Organization and dispense the greatest violence.” (Tr. 17).
The Government strongly believes that the evidence at trial bears
that characterization out.
D. DefendantIvezaj
Defendant Ivezaj identifies several factors that he
believes warrant leniency in his sentence: “1) his lifetime of
helping others, 2) his close family ties and the devastation that
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his incarceration has caused to his close-knit family,
particularly his aged mother, and 3) the fact that the
approximately 21-year prison term calculated by the PSR would
dramatically overstate the seriousness of [his] conduct, the
essence of which was his participation in an illegal gambling
enterprise, and the aberrant nature of the extortionate conduct
for which [he] has been convicted.” (Ivezaj Ltr. 29).
With respect to his “good works,” Ivezaj cites
primarily to isolated incidents in which he helped others in
need, ranging from the time that he helped a friend’s fiancee fix
her car to the times he drove another friend to visit that
friend’s mother in the hospital. (Id. at 30). While the
Government certainly acknowledges that these were positive acts
for the defendant to have undertaken, they do not demonstrate, as
Ivezaj’s submission suggests, “that, unless he has dual or split
personalities, [Ivezaj] is not the kind of violent or callous
person the government attempted to portray at trial.” (Ivezaj
Ltr. 29). The evidence at trial regarding Ivezaj’s violent acts,
including taped conversations in which he gleefully recounted
prior violent acts, was overwhelming. His sporadic good deeds
cannot come close to mitigating the crimes of which he was
convicted.
Likewise, the fact that Ivezaj comes from a large,
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devoted family, whom he loves and who love him very much, hardly
call out for leniency. While many defendants who come before
this Court for sentencing seek leniency on the basis that they
are the sole breadwinner for their family, the same cannot be
said of Ivezaj. While his family may be severely hurt by his
actions, it does not appear that anyone depends on him for actual
support; as such, there is absolutely no basis to reduce his
sentence due his family circumstances.
Similarly, Ivezaj’s suggestion that his conduct was
“aberrant” belies common sense. Ivezaj was involved with the
Rudaj Organization from as early as the Summer of 2001 until
October 2004; during that time, he had constant involvement with
the Organization and, in particular, the various gambling
activities in which the Organization was involved; and he engaged
in repeated and regular acts of violence on behalf of the
Organization. Ivezaj does not argue (nor could he) that his
involvement in the Rudaj Organization was “aberrant” in the sense
required for a downward departure because it was not short-lived;
but even as a factor to be considered under Section 3553(a),
there is absolutely no basis to believe that his regular criminal
conduct over at least a three-year period can be said to
“aberrant.”
Finally, Ivezaj’s argument that a Guidelines sentence
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would create a disparity between his sentence and that of his co- defendants is without merit. The defendants to whom he cites include Gjelosh Lelcaj and Joseph Genua, as well as defendants who were convicted solely of operating a gambling business. All of these defendants were convicted after pleading guilty; all pled guilty to far less serious crimes; and none occupied the supervisory role or demonstrated the capacity for, and history of, violence that Ivezaj did. For all of these reasons, there is no basis to draw a comparison between the sentence Ivezaj anticipates receiving and the sentences already received by defendants who pled guilty prior to trial.11
E. Defendants Nuculovic and DiPietro
Defendants Nuculovic and DiPietro do not make specific
arguments in their submissions that the Court should sentence
them below the applicable guidelines range. Nevertheless, it is
11
Ivezaj also points to the seven-year sentence that Anthony
Megale, the acting underboss of the Gambino Crime Family,
recently received in the District of Connecticut. Of course,
comparisons to isolated cases have limited value, because for
every defendant who received a very lenient sentence there is one
who received a very harsh sentence; such a spectrum is
inevitable. More fundamentally, however, based on the press
release that Ivezaj has provided, Megale’s sentence does not
appear to have been lenient, but rather differs from Ivezaj’s in
a number of important respects: first, Megale did not go to trial
but rather pled guilty; second, Megale pled guilty to one count
of racketeering conspiracy, which at least according to the press
release, encompassed two extortions and a gambling charge; and
third, and relatedly, while Megale’s crimes no doubt involved
implicit threats of violence, it does not appear from the press
release that he admitted to actual violent acts.
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apparent from the evidence presented by the Government at the
trial of this matter that such a reduced sentence is not
warranted for either of these defendants.
The evidence presented at trial demonstrated that
Nuculovic participated frequently in acts of violence, including
the assault of Balampanis, the storming of Soccer Fever, the
armed gas station standoff with the Acting Boss of the Gambino
Crime Family, and a nascent plot to kill co-defendant Lenny
Colotti, among others. In addition, the evidence demonstrated
that Nuculovic’s participation in criminal activity was not an
occasional event but rather was a lifestyle that he had pursued
for many years. As a result, the circumstances of this case do
not warrant a reduced sentence for Nuculovic.
Similarly, the evidence presented at trial demonstrated
that DiPietro was also committed to a life of crime and had spent
separate portions of his life in the criminal crews of a Luchese
soldier and then a Gambino captain before enlisting with the
Rudaj Organization. Indeed, even when DiPietro was kicked out of
the Rudaj Organization for stealing, he continued his illegal
conduct by operating an illegal gambling club in Mount Vernon.
In addition, the evidence showed that, while he was a member of
the Rudaj Organization, DiPietro did not hesitate to use
violence, as demonstrated by his participation in the Balampanis
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assault and the storming of Soccer Fever. As a result, the
circumstances of this case do not warrant a reduced sentence for
DiPietro.
CONCLUSION
For these reasons, the defendants should be sentenced
as indicated above.
Respectfully submitted,
MICHAEL J. GARCIA
United States Attorney
By:
Timothy J. Treanor
Jennifer G. Rodgers
Benjamin Gruenstein
Assistant United States Attorneys
Tel. No.: (212)637-2362/2513/2315