B. The proposed grouping analysis overstates the offense level.
Within the context of the sentencing impact of the grouping of offenses in this case, should the court find that the grouping analysis contained in the pre-sentence report is correct, we submit that the rigidly formulaic framework of the guidelines must yield to a more reasoned assessment. In this regard, we by no means minimize the conduct of the defendant or the seriousness of the crimes of conviction. We submit, however, that the grouping provisions of the guidelines in this matter result in an overstated offense level. Notwithstanding the technical machinations of §3D1.2 of the guidelines, the heart of this trial was a gambling conspiracy which was fed by extortionate activity which yielded additional gambling activity. Once the organization took over gambling operations in Astoria, they sought to expand the business by placing machines in other locations. Hence the charges of extortion at Cosmos and Soccer Fever and as against Balampanis and Dimopoulos. There can be no question but that these acts were all integrally related to one another and a part of the same course of criminal conduct and yet, the proposed grouping would yield a sentence which far exceeds the combined severity of these crimes.
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C. The mandatory seven year consecutive sentence based upon the §924(c) conviction results in an unduly harsh sentence.
We also ask the court to note that the §924(c) conviction in this case mandates an additional seven years to whatever sentence is imposed on the other charges. In Mr. Rudaj’s case, even if the court imposed the minimum guideline sentence, this would yield a sentence of 24.5 years or 294 months.23 In addition to the unwarranted severity of such a sentence, we ask the court to note that this consecutive seven years is a result of conduct which is already subsumed, at least in a practical and intellectually honest sense, in the extortion, loansharking and debt collection convictions. For every extortion conviction, a two level enhancement is proposed for the implied and express threat of bodily injury pursuant to U.S.S.G. §2B3.2 (a). For the Misale and Mirage extortions, and the extortionate debt collection, a two level enhancement is proposed based upon bodily injury. For the Balampanis extortion, a four level enhancement is proposed (U.S.S.G. § 2B3.2(b)(4)(A). Should the court overrule our objections to these enhancements, we submit that the consecutive seven year sentence would be unduly harsh and tantamount to double counting given that the threat embodied in the brandishing of a firearm has already been factored into the guidelines and has so dramatically affected the advisory sentence provided for by the guidelines.
D. Consideration of statutory factors pursuant to 18 U.S.C. §3553 warrants a non- guidelines sentence.
Finally, we ask the court to consider the other statutory factors contained in 18 U.S.C. §3553(a) and find that a sentence lower than that provided for by the guidelines is appropriate.
1. Nature and Circumstances of the Offense
For approximately nine weeks, this court, counsel, and the defendants listened to the government portray these defendants and Mr. Rudaj as a band of ruthless, merciless individuals bent only on violence and the threat thereof. We do not submit, for purposes of this proceeding, that there were not violent episodes in the years depicted at this trial, however, we do submit that Mr. Rudaj was not the man the government will seek to convince the Court he is and that in fact, the testimony of fear instilled and injuries sustained was, at least in some important instances, exaggerated. The government presented evidence which dated back to 1993. Aside from the attempted murder of Gaetano Peduto, for which Mr. Rudaj was acquitted, there was no evidence of violent acts committed by him during these earlier years. Indeed, aside from evidence that he bought cars from Peduto and resold them, Mr. Rudaj was close to a non entity until 2001.24 I am mindful of the evidence concerning weapons as testified to by Peduto and Onofrietti but their
23
If the court were to sentence the defendant pursuant to the defense’s calculations, this would yield a sentence of 171 months or more than 14 years in the best case scenario or 192 months (16 years) without the adjustments for grouping proposed by the defense.
24
say in terms of Mr. Rudaj being any sort of presence in the Bronx at this time.
Misale said he was just around and said and did little of anything. Peduto and Onofrietti also had little to
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testimony was clearly and resoundingly rejected by this jury and there is simply no reason for this court to credit it. We ask Your Honor to remember that Peduto was under constant surveillance during these years as he surrounded himself with alleged members of organized crime. There was no evidence of violence committed by Mr. Rudaj. Indeed, after the Peduto/Onofrietti testimony, the trial fast forwarded to 1998 and the Misale incident. Again, while Mr. Rudaj was convicted on this count, it is undisputed that he was out of the country and had nothing to do with the alleged assault of Misale. At best, he learned of it later and told Misale he would side with his friends. The tapes played for the jury confirm this. These tapes, like the others played for the jury, perhaps depicted men somewhat full of themselves, but there was nothing on the Misale tapes to indicate that Mr. Rudaj ever threatened Misale or was in any way involved in the alleged assault of Misale.
Mr. Rudaj and his co-defendants operated some gambling spots in the Bronx and moved into Astoria in 2001. There were on nobody’s radar screen until the Balampanis beating and for all of Balampanis’ repeated statements of his injuries sandwiched within his oft repeated “I don’t remember”, Antonios Balampanis was back in Astoria the very next day, seeking out and confronting one of the men who so brutally attacked him. His claims of fear and terror were specious at best. Likewise, Michael Hirakis claimed he too was savagely beaten and yet, within hours of this devastating incident, he was sitting with one of his alleged attackers and stealing $3500.00 from Nuculovic under the guise of needing it for medical treatment. This man, after the savage beating, returned to Soccer Fever to collect his $4000.00 and then met Nuculovic and took $3500.00 from him for medical treatment he could have had three times with this money and yet never had. He then incredibly testified that he still suffers from the effects of a condition he could have rectified the day after his beating. His doctor confirmed Hirakis’ lie when he testified that Hirakis wanted to seek the additional medical treatment but could not afford it.
Again, we do not dispute that there was a violent component to the crimes charged. We simply ask the court to consider that the sentence called for by the guidelines with the mandatory consecutive seven year sentence is disproportionately harsh given the actual level of violence proven in this case.25
2. Personal Characteristics of Alex Rudaj
Mr. Rudaj was born on February 12, 1967 in Montenegro, Yugoslavia. His father passed away in 1968 and his mother, who had a total of six children and is now 79 years of age, still resides in Montenegro. Ms. Rudovic is aware of her son’s current predicament and while she has been unable to travel to the United States during this time, she remains in constant contact with her other children in the United States as well as Mr. Rudaj’s wife and children. Mr. Rudaj’s bother Peter Rudovic resides in the Bronx with his wife and two children. His other brother, Prenka resides in Montenegro with his wife and two children. Mr. Rudaj has a good
25
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By comparison, second degree murder, with a base offense level of 38 provides for an offense level of 235- 293 months (U.S.S.G.§2A1.2), voluntary manslaughter 29 with a range of 87-108 months, aggravated assault with permanent life threatening injury and the discharge of a firearm yields an offense level of 26 with a range of 63-78 months.

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relationship with his siblings, they continue to remain supportive and his brother Peter attended the trial very as often as his other responsibilities permitted.
Mr. Rudaj’s father passed away when he was an infant and his upbringing was somewhat a lesson in survival. He attended school and tended to the farm with his mother from a very young age in order to make ends meet. After high school, he began pre-military training and later declined to continue in the military. Having become unhappy with life under Communist rule, Mr. Rudaj emigrated to Sweden and after five months, he came to the United States in 1986. Upon his arrival he lived with family and in the 1990’s he applied for and was granted permanent residence status. In 1988 Mr. Rudaj met his wife, Maria and after a brief courtship, the couple married. They have three children, Lenora, age 14, Adrijiana, age 12 and Jake, age 8. Ms. Rudaj is devoted to her husband, has been a constant source of support for him and has been devastated by this trial and conviction. The three children have also suffered tremendously from the loss of their father. There is no question but that this entire family has been devastated by the events of the last four years. Mr. Rudaj is keenly aware that he will spend a considerable period of time away from his children in their most tender and important years and that he will thereafter be deported. For all the government’s expected observations of what they believe is the other side of this man, he does love and miss his family and is crushed by the prospect of spending the next several years away from them.
Mr. Rudaj has been employed his entire life. As stated, supra, during his childhood years he lived in Yugoslavia and worked in farming. Between 1986 and 1989, he was employed as a busboy at Tavern on the Green, in Manhattan. The work was seasonal and his hours varied and at times, he earned up to $1000.00 per week. In 1990 Mr. Rudaj worked as a porter for the Douglas Summers Company, a building management company located in Manhattan. He made $350.00 per week. He left for employment in White Plains, New York where from 1990 to 1993 he worked as a supervisor of superintendents on Virginia Road and earned $450.00 per week along with free room and board. From 1993 to 1995, Mr. Rudaj worked as a truck driver and foreman at Two Stars Construction in the Bronx and from 1995 to 2000 Mr. Rudaj worked at Alba Construction Corporation. He left this employ after suffering a debilitating back injury. Mr. Rudaj thereafter worked at Portofino’s Restaurant located in the Bronx and later worked for his company, Morris Park Games, which this court was made aware of during the trial.
I have been informed that several letters have been submitted to the probation department and some have been directly sent to the court from family and friends of Mr. Rudaj. These letters clearly reflect that Mr. Rudaj has spent a good part of his life being a friend to many, always willing to assist his family and friends in any way needed. The court may recall the plethora of letters submitted in our bail application by so many whose lives were positively affected by Mr. Rudaj. While the court declined to grant bail, the court accepted these materials and verifications. These individuals all knew of the charges against Mr. Rudaj and were nevertheless readily willing to lend their good name to his cause and to post their entire life’s savings to secure his release. They trusted that Mr. Rudaj would never breach their trust as he never had before.
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We ask Your Honor to consider that notwithstanding the convictions in this matter, there is another side to Mr. Rudaj that is good and also worthy of consideration. The potential sentences in this case would effectively take a 39 year old man from his family for decades. The need for deterrence, both specific and general and the need to protect the public do not require such a draconian result given the nature and circumstances of this offense and the history and characteristics of this defendant. This case is indeed serious and the crimes of conviction call for punishment, however, we respectfully submit that the sentencing range provided for by the advisory guidelines far exceeds that which serves the purposes of 18 U.S.C. 3553. This court now has the authority to render a sentence more in conformity with fairness and to meet out justice in a manner more fairly proportionate to the circumstances presented.
It is this return to consideration of individualized characteristics and the other statutory factors, within the advisory framework of the guidelines that we respectfully submit warrant a sentence far less than that called for by the guidelines.
We respectfully join in the arguments of co-counsel where applicable.
cc: Timothy Treanor Jennifer Rodgers
Benjamin Gruenstein
Assistant United States Attorneys
Alex Rudaj
Law Office of James Kousouros
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Respectfully submitted, JAMES KOUSOUROS