United States District Court, S.D. New York
August 31, 2005.
UNITED STATES OF AMERICA,
ALEX RUDAJ, et al. Defendants.
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION AND ORDER
At a conference on August 22, 2005, the Government orally moved
to sever the charges against seven of the defendants (the "Seven
Defendants") charged in this racketeering case and try those
charges at the trial scheduled to begin on September 26,
2005.*fn1 All defendants were given an opportunity to oppose
that application. Four of the Seven Defendants, Nikola Dedaj,
Gjelosh Lelcaj, Prenka Ivezaj and Angelo DiPietro (the "Four
Defendants"), have requested that their trial also be severed
from that of co-defendants Alex Rudaj and Nardino
Colotti.*fn2 For the following reasons, the trial of the
Seven Defendants will be severed from that of their
co-defendants, and the application by Four of the Seven
Defendants for a further severance is denied.
Seven Defendants, including each of the Four who have objected
to the Government's severance plan, are named in racketeering counts that charge the existence of a racketeering
enterprise denominated the Rudaj Organization from the early
1990s to October 2004. Rudaj, Colotti and Dedaj are charged as
the primary leaders of the Organization. The RICO charges list
attempted murder, extortion, loansharking, assault and illegal
gambling as acts in which the Organization engaged. According to
the indictment, when disputes arose between the Organization and
the Families that constitute the New York City members of La Cosa
Nostra ("LCN"), the leaders of the Rudaj Organization would
resolve the disputes by allocating territory and using threats of
violence and violence. The Organization at times coordinated
their criminal activities with LCN Families.
In addition to being named in the RICO counts, each of the
Seven Defendants is charged with having engaged in violent
crimes. In addition to the attempted murder charges which
constitute racketeering act one and involve only Rudaj and
Colotti, there are seven separate racketeering acts charging
seven separate instances of extortion or attempted extortion by
various combinations of two or more of the Seven Defendants.
There are also nine substantive counts charging crimes of
extortion and assault by the Seven Defendants, again naming
various combinations of two or more of these defendants in each
count, and one count charging all Seven with using and carrying
firearms in connection with crimes of violence.
The Government has moved to sever the trial of the Seven
Defendants who are charged with RICO violations, extortion and
other violent crimes from the many remaining defendants, who face
only gambling charges. The Four Defendants oppose the Government's severance motion and seek a separate trial from
Rudaj and Colotti on the ground that there is clear and
inescapable spillover prejudice from the attempted murder
predicate act which names only Rudaj and Colotti. The Four
Defendants argue that as of 1993, the year of the attempted
murder, the Rudaj Organization had not even come into existence,
or was just beginning. They argue that because the Government
accuses Dedaj (and Ivezaj) with having leadership roles in the
Organization it will be particularly difficult for the jury to
distinguish them from Rudaj and Colotti.
Besides relying on the prevailing legal standard, the
Government argues in favor of a joint trial of the Seven
Defendants by pointing out that there is at best a slight
qualitative difference between the violent acts of Rudaj and
Colotti and the violent acts in which the Government will offer
proof at trial that the Four Defendants participated. The
Government represents that the extortions involve armed beatings
There is a "preference in the federal system for joint trial of
defendants who are indicted together." United States v.
Salameh, 152 F.3d 88, 115 (2d Cir. 1998). This preference is
"particularly strong" where defendants are alleged "to have
participated in a common plan or scheme." Id. It is frequently
observed that it would "impair both the efficiency and the
fairness of the criminal justice system to require that
prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to
repeat the inconvenience (and sometimes trauma) of testifying,
and randomly favoring the last-tried defendants who have the
advantage of knowing the prosecution's case beforehand." Id.
A motion for severance should be granted "only if there is a
serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence." Zafiro v. United
States, 506 U.S. 534, 539 (1993). Severance is not warranted
"merely because [the defendants] may have a better chance of
acquittal in separate trials." Id. at 540. Prejudice is present
when "proof inadmissible against a defendant becomes a part of
his trial solely due to the presence of co-defendants as to whom
its admission is proper." Salameh, 152 F.3d at 115. Even when
there is some risk of prejudice, however, it may be that the
prejudice can be "cured with proper instructions." Zafiro,
506 U.S. at 540. See also United States v. Hernandez,
85 F.3d 1023, 1029-30 (2d Cir. 1996).
Although the racketeering act charging attempted murder and
naming only Rudaj and Colotti is certainly a serious charge, it
must be evaluated against the background of the other charges and
evidence that will comprise the trial of the Seven Defendants.
The charges and evidence include a series of violent crimes and
coordinated work with LCN Families that implicate all Seven
Defendants and substantially reduce the risk of any prejudice
against the Four Defendants simply because they are joined at
trial with Rudaj and Colotti. The customary instruction to the jury that they must separately consider the evidence and charges
against each defendant, will be sufficient in these circumstances
to cure the risk of prejudice from a joint trial. To the extent
that any defendant wishes specific limiting instructions during
the course of the trial, they will be given an opportunity to
make those requests.
The Government's motion to sever the trial of the seven
defendants named in the RICO counts from that of their
co-defendants is granted. The trial of these seven defendants
shall begin on September 26, 2005.
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