The opinion of the court was delivered by: Denise Cote, District Judge
Defendant Ljusa Nuculovic ("Nuculovic") has brought a motion for a new trial pursuant to Rule 33, Fed. R. Crim. P., on the ground that his trial counsel was ineffective. Among the most serious charges, Nuculovic contends that his attorney Robert Koppelman ("Koppelman") slept during the trial. For the following reasons, the motion is denied.
Background Nuculovic was indicted on October 6, 2004, along with more than a score of co-defendants in a multi-count indictment arising from the Government's investigation of an Albanian organized crime family (the "Organization") in New York City. The defendants included the leaders of the Organization, members of the Organization who provided enforcement and other services, and individuals who ran individual gambling clubs that sent a significant stream of cash to the Organization's leaders.
Six defendants, representing the leadership of the Organization and their core employees, were tried in a three and a half month trial that ran from September 26, 2005, to January 4, 2006. The defendants at trial were Alex Rudaj ("Rudaj") and Nardino Colotti ("Colotti"), who headed the Organization; Nikola Dedaj ("Dedaj"); Prenka Ivezaj ("Ivezaj"); Angelo DiPietro ("DiPietro"); and Nuculovic. Nuculovic, who is Rudaj's cousin, had run the Organization's gambling operations in Queens for several years until he had a falling out with Rudaj.
Each of the six defendants was convicted of substantive and conspiracy RICO charges, in violation of 18 U.S.C. § 1962; substantive and conspiracy gambling charges, in violation of 18 U.S.C. §§ 1955 and 371; and brandishing a firearm in furtherance of the substantive RICO crime, in violation of 18 U.S.C. § 924(c). Nuculovic was also convicted with four of his co-defendants of an extortion conspiracy, in violation of 18 U.S.C. § 1951, in connection with the Organization's efforts to place a gambling machine in a Queens bar called the Cosmos bar.*fn1
The RICO predicate acts that named Nuculovic which the jury found that the Government had proven included an extortion of Fotios Dimopoulos ("Dimopoulos"), who controlled gambling in Queens for the Luchese crime family before the Organization drove it out, and his associate Antonios Balampanis ("Balampanis"); an extortion at a gambling club known as Soccer Fever, an event that was critical to the Organization's defense of its Queens gambling territory from an incursion effort by the Gambino crime family; Nuculovic's extortionate debt collection from Mikhail Hirakis ("Hirakis"), a gambler who became a Government informant after Nuculovic threatened him; and the extortion at the Cosmos bar.
The jury acquitted the defendants on four charges: three racketeering acts and a substantive crime. Each of the six defendants was acquitted of the charge that they had assaulted Hirakis in aid of racketeering. With respect to the racketeering acts, the jury found that the Government had not proven that two defendants (Rudaj and Colotti) attempted to murder a criminal associate, Gaetano Peduto; that Nuculovic had committed extortion at a nightclub known as the Grecian Cave; and that Nuculovic had made an extortionate extension of credit in the amount of $10,000.
The Government's evidence at trial included intercepted Title III recordings of telephone conversations, consensual tape recordings made by two trial witnesses who dealt extensively with Nuculovic: Hirakis and Nicos Kyprianou("Kyprianou")*fn2 ;
victim testimony; surveillance testimony and photographs; seized gambling machines, gambling paraphernalia, and documents; and with respect to Nuculovic alone, his statements to law enforcement officers after his falling out with Rudaj and just prior to his arrest.*fn3 Because of its importance to the analysis of the legal issues raised by Nuculovic's Rule 33 motion, the trial evidence for the principal crimes on which Nuculovic was convicted is described in some detail.
The evidence at trial showed that Rudaj and Colotti were the leaders of the Organization. Rudaj ran the Organization's gambling operation; Colotti was the Organization's liaison with Italian organized crime. Dedaj, an extremely violent and dangerous member of the Organization, was the third most important person in the leadership structure. He was in charge of loansharking and debt collection, and helped collect gambling proceeds weekly from establishments that had agreed to accept the Organization's illegal gambling machines. Ivezaj supervised gambling clubs, provided protection services for bars and restaurants where the Organization's gambling machines were installed, and with the other leaders of the Organization helped to intimidate rivals and coerce victims. DiPietro ran a gambling operation for the Organization and provided additional "muscle" when requested.
Nuculovic was an inveterate gambler and, as mentioned above, a relative of Rudaj. Rudaj and Colotti had already established a strong presence for their Organization in the Bronx and Westchester, and Nuculovic convinced Rudaj that he should expand his activities into the Astoria section of Queens and supplant the Luchese family, who controlled illegal gambling in that section of New York City.
Nuculovic described the Organization's entry into Astoria during his pre-arrest conversations with federal agents. Realizing that federal law enforcement officers were surveilling his organization's activities, and fearing that arrests were imminent, in September 2004, Nuculovic reached out to and met with FBI agents, offering to work as an informant in exchange for being allowed to remain on the street. He described himself as a degenerate gambler who had controlled gambling in Astoria for an organization.*fn4 He said that the leaders of his organization believed that they were creating a sixth organized crime family in New York City.
Nuculovic reported that he had joined the organization about four years earlier and that the organization had taken over the gambling clubs and gambling interests in Astoria, Queens from the Luchese crime family. To earn the respect of Greek gamblers, he explained that it was essential that the organization control the Greek dice game barbout and it did. Because he needed the organization's support to install gambling machines in gambling clubs in Astoria, he split the proceeds that he received from the machines and from the barbout game with the organization's leaders "fifty/fifty." According to Nuculovic, he remained in charge of Astoria for the organization until early 2004.
Nuculovic's statement was entirely consistent with the other evidence received at trial. As that evidence showed, the Organization's entry into Astoria began with an act of violence, charged as Racketeering Act 4 and charged as well in Count Thirteen.
2. Count Thirteen and Racketeering Act 4: Extortion of Dimopoulos and Balampanis
Racketeering Act 4 charged that all of the defendants on trial except Colotti participated in the extortion of Dimopoulos and Balampanis.*fn5 Count Thirteen charged all of the defendants with possessing a firearm in furtherance of the RICO crime charged in Count One of the indictment on at least one of three occasions.*fn6 One of those occasions was the attack on Balampanis in connection with the extortion charged in Racketeering Act 4.
As mentioned, Dimopoulos supervised the illegal gambling operations in Queens for the Luchese crime family until the Organization took over the operations in 2001. In order to send a message that the Organization was taking over those operations, Rudaj and his associates attacked Dimopoulos' associate Balampanis in June 2001. At that time, Balampanis was at a Greek gambling club known as Stamatis. Nuculovic went to the club and lured Balampanis to a stairwell in a neighboring building where Rudaj and others were waiting. In that small, cramped stairwell, they beat Balampanis ferociously. Dimopoulos got the message, he stayed away from Queens, and the Organization successfully took over gambling in Astoria from the Luchese crime family.
The evidence concerning this incident came from Balampanis, who described Nuculovic's role and his beating; Balampanis' medical records, which reflected that Balampanis believed he had been pistol whipped; and Maurizio Sanginiti, who had driven some of the defendants to the scene, was waiting outside in a car during the beating, and heard Ivezaj and DePietro describe the attack moments after it had occurred. In addition, the jury heard descriptions from Nuculovic and Rudaj of these events through the consensual tape recordings made by Kyprianou.
On October 1, 2003, Nuculovic explained to Kyprianou that Dimopoulos had been his friend for years, and that Nuculovic had offered to let him stay involved in the barbout game on the condition that he sever his ties with the Italians and join the Albanian Organization, which was coming from the Bronx to take over gambling in Queens. When Dimopoulos' friend Balampanis, whom Nuculovic described as an "Albanian, from Greece", broke some of the Organization's gambling machines, he was beaten.
In a recorded conversation that began on April 15, 2004,*fn7 Rudaj described to Kyprianou how he had taken over Astoria. He said that Balampanis was an Albanian who spoke Greek and who "caught a beating" because of his connection to Dimopoulos.
After Balampanis broke some machines, Rudaj had Nuculovic "pull" Balampanis from next door and bring him to the place where Rudaj and his associates were waiting behind a door. Rudaj and the others beat Balampanis so badly that there was blood "all over".
Nuculovic's statement to the FBI agents about these events was largely confirmatory of the tape-recorded evidence. Referring to Balampanis, Nuculovic explained that after a Greek man named Tony, who was associated with the Luchese family, broke some gambling machines to show his opposition to the organization's take-over of Queens, Nuculovic lured him to the place where he was beaten by Nuculovic and other organization members.
3. Count Thirteen and Racketeering Act Five: Soccer Fever Extortion
The most profitable gambling game in Astoria was the barbout dice game, and the Organization made sure that it had a monopoly on it. Within months after the Organization had ousted the Luchese family from Queens, the Gambino crime family, represented by Tommy Napoli, tried to open a rival barbout game at a gambling parlor called Soccer Fever. The Organization forcibly entered the building on the game's second night of operations, tossed over the gaming tables, and attacked one of the Greek gambler-owners of the game, Hirakis. Ivezaj seized Hirakis and Dedaj beat him.*fn8
This extortion of the Soccer Fever victims occurred in August 2001 and was charged as Racketeering Act Five. The possession of firearms during the Soccer Fever incident and in furtherance of the RICO crime charged in Count One was one of the incidents included in Count Thirteen, the firearms count. All defendants were found guilty of Count Thirteen, and the jury found that the Government had proven the extortion charged in Racketeering Act Five.
The jury received first hand evidence about the events at Soccer Fever through Hirakis, who testified at trial. His medical records were received in evidence, and the defendants' tape recorded reminiscences of the event were also played for the jury.
On a tape recording from April 6, 2004, Rudaj described the Soccer Fever incident to Kyprianou. He explained that after Nuculovic had helped to get Rudaj and his men into the club, he had looked for Tommy Napoli but didn't find him. Rudaj then told his men to break the barbout table, and warned the gamblers: "I don't want to see nobody here. If I see one more time, I swear to God, I say, I beat you fucking one by one. I eat you up. It's closed." Rudaj attributed the attack on Hirakis to Hirakis having disregarded the Organization's warning not to go to Soccer Fever. About a week later, in a conversation that began on April 15, 2004, Rudaj described again how he had closed Napoli's barbout game and made sure that Napoli ...