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Nardino Colotti v. United States of America

April 4, 2012


The opinion of the court was delivered by: Denise Cote, District Judge:


These three petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2255 are brought by co-defendants who were convicted in 2006 following a fifteen-week jury trial. In an Opinion of December 21, 2011, the Court denied the petitions in part but reserved decision on several claims so that an evidentiary hearing could be held to investigate the petitioners' allegations of ineffective assistance of counsel in connection with their pre-trial plea negotiations with the Government. See United States v. Colotti, No. S3 04 Cr. 1110 (DLC), 2011 WL 6778475 (Dec. 21, 2011). That hearing was conducted over the course of four days in March 2012. This Opinion sets out the Court's findings of fact and the conclusions of law that it draws therefrom.

At the conclusion of the March hearing, the Court denied the remaining claims of petitioners Colotti and Dedaj on the record. For reasons that are discussed below, petitioner Ivezaj's claims are hereby denied as well.


What follows is an account of the relevant facts as found by the Court. The findings are based on the trial record, the submissions of the habeas petitioners, various documents produced in support of the petitions, and the testimony of witnesses during a four-day evidentiary hearing conducted in March of 2012.

I. The Indictment and Arrest

On October 6, 2004, petitioners, along with more than a score of co-defendants, were charged in a multi-count indictment arising from the Government's investigation of an Albanian organized crime family (the "Rudaj Organization") in New York City. The Rudaj Organization was founded in the early 1990s when Alex Rudaj and petitioner Nardino Colotti split from the Genovese Organized Crime Family to form a rival organization. Initially the Rudaj Organization concentrated its activities in the Bronx and Westchester County, where it operated various illegal gambling businesses. In the summer of 2001, however, the Rudaj Organization expanded into the Astoria section of Queens, ousting the Lucchese Crime Family and seizing control of a network of gambling parlors and video gambling machines stationed in bars and social clubs across Astoria.

The defendants charged in the indictment included the leaders of the Rudaj Organization, members of the Rudaj Organization who provided enforcement and other services, and individuals who ran individual gambling clubs that sent a significant stream of cash to the Rudaj Organization's leaders. Petitioners Colotti and Dedaj were the two most important people in the Rudaj Organization after Alex Rudaj himself. Colotti served as the Organization's liaison with Italian organized crime; Dedaj was in charge of loansharking and debt collection and helped collect gambling proceeds weekly from establishments that had agreed to accept the Rudaj Organization's illegal gambling machines. Petitioner Ivezaj supervised gambling clubs, provided protection services for bars and restaurants where the Rudaj Organization's gambling machines were installed, and, with the other leaders of the Rudaj Organization, helped to intimidate rivals and coerce victims.

As presented to the jury at trial, the indictment charged each of the three petitioners with substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962; substantive and conspiracy gambling, in violation of 18 U.S.C. §§ 1955 and 371; the assault of Mikhail Hirakis in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3); conspiracy to extort the owner of Cosmo's Bar, in violation of 18 U.S.C. §1951; and brandishing a firearm in furtherance of the substantive RICO crime, in violation of 18 U.S.C. § 924(c). As relevant here, the indictment also charged: Dedaj and Colotti with the assault of Salvator Misale in aid of racketeering; Colotti with conspiracy to extort and attempted extortion of the Mirage strip club; Ivezaj with conspiracy to extort and attempted extortion of Calda's Bar; and Dedaj with conspiracy to use extortionate means to collect extensions of credit, in violation of 18 U.S.C. § 894.

The indictment charged fourteen predicate acts in support of the RICO allegations. These included a number of the acts charged as substantive crimes in the indictment, as well as the extortion of Fotios Dimopoulos ("Dimopoulos"), who controlled gambling in Queens for the Lucchese crime family before the Rudaj 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 Rudaj Organization's defense of its Queens gambling territory from an incursion effort by the Gambino crime family; and, most significantly, a conspiracy and attempt by Colotti and Rudaj to murder a criminal associate, Gaetano Peduto.

The three petitioners and a majority of the other defendants named in the indictment were arrested on October 26, 2004 and made their initial appearances before a magistrate judge the same day. While many of the defendants were permitted to post bail, the three petitioners, Rudaj, and several others were designated for pre-trial detention. The bail proceedings with regard to petitioner Ivezaj are particularly relevant here. On November 8, 2004, the Court conducted an initial hearing on the subject of Ivezaj's continued detention. At that proceeding, counsel indicated that the defendant was prepared to offer a bail package valued at $750,000 and to submit to home monitoring. The Court continued the detention, finding that in light of the "very serious charges [against him] with the potential for a substantial term of imprisonment," the proposed bail conditions were insufficient to deter the defendant from attempting to flee or to affect the testimony of potential witnesses.

II. The Defendants Prepare for Trial.

Soon after the initial arrests, on November 3, 2004, the Court convened a conference at which trial was scheduled for September 26, 2005 and the Government was directed to produce discovery materials by December 17, 2004. In the months that followed, many of the defendants pled guilty to some or all of the allegations against them. Ultimately, only seven defendants elected to proceed to trial: the three petitioners, Alex Rudaj, Ljusa Nuculovic, Gelosh Lelcaj, and Angelo DiPietro.

In preparation for trial, the three petitioners, Rudaj, their respective lawyers, and various others involved in preparing their defense met weekly to review the evidence produced by the Government during discovery and to coordinate their trial strategies. The evidence to be offered at trial included intercepted Title III recordings of telephone conversations; consensual tape recordings made by two trial witnesses, Hirakis and Nicos Kyprianou ("Kyprianou"); surveillance photographs; and seized gambling machines, gambling paraphernalia, and documents. Petitioners Dedaj and Colotti took particularly active roles in the joint defense meetings. They provided insight into the weaknesses of victims and potential witnesses that could be exploited on cross-examination, speculated as to which witnesses might not appear for trial, and suggested avenues to be pursued by the defendants' private investigator. Dedaj also spent many hours reviewing the tape recordings with care, taking notes and reporting back to the group regarding their contents.

Dedaj was right to focus on the recordings, which contained particularly damaging evidence against the defendants. Aside from the attempted murder of Peduto, the most serious allegation in the indictment was the extortion of Soccer Fever, which was charged as a racketeering predicate and as a substantive violation of 18 U.S.C. § 924(c). The most profitable gambling game in Astoria was the barbout dice game, and the Rudaj Organization made sure that it had a monopoly on it. Within months after the Rudaj Organization had ousted the Lucchese family from Queens, the Gambino crime family, represented by Tommy Napoli, tried to open a rival barbout game at Soccer Fever. In August 2001, on the game's second night of operation, Rudaj and his associates forcibly entered Soccer Fever and, with guns drawn, took control of the Gambino associates and gamblers. They proceeded to toss over the gaming tables and attack one of the Greek gambler-owners of the game, Hirakis. Ivezaj seized Hirakis and Dedaj beat him.

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 the fact that Hirakis had disregarded the Rudaj 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 didn't put any gambling machines into Astoria. As repeated to Kyprianou, he told Napoli when he met with him, "not in Astoria, you know. This place . . . [is] my place, I say, I control it."

In gripping terms, on April 6, 2004, Ivezaj described on tape what would have happened if any of Napoli's henchmen, who were guarding the barbout game at Soccer Fever, had pulled a gun that night. "If anybody do anything with guns, they're dead. If anybody takes a gun out, like you, you have a gun you take out, you get me, or I get you. That's it." In another conversation on that same day Ivezaj described dragging Hirakis by his hair and said they hit Hirakis so hard with a chair that it broke.

Nuculovic added to the recorded descriptions of that night. On February 12, 2004, Nuculovic characterized the Soccer Fever incident as an incident directed against Tommy Napoli and not the Greek people, even though Hirakis got hurt. He admitted to Kyprianou that he had had a gun that night.

The recordings also included powerful evidence implicating the defendants in the beating of Tony Balampanis, charged as Racketeering Act Four in the indictment. In a recorded conversation that began on April 15, 2004, 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 the Lucchese crime family, which controlled gambling in Queens before the Rudaj Organization drove it out. 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."

Having reviewed these materials, the defendants were well aware of the strength of the case against them. Dedaj, for one, testified at the hearing held in connection with these petitions that soon after his arrest he conferred with fellow inmates at the Metropolitan Detention Center ("MDC"), who informed him that a RICO charge was likely to carry at least 20 years, followed by an additional seven years if he were convicted on the firearm charge. When Dedaj later appeared before the Court to request that it accept a bail package totaling $5 million and the request was denied, he became all the more conscious that he "had serious problems."

The strength of the Government's evidence notwithstanding, Ivezaj's lawyer, Mr. Ronald Rubenstein, expressed optimism about the chances of an acquittal at trial, at least on the § 924(c) charge. On March 24, 2005, more than three months after the discovery materials were turned over, Ivezaj renewed his application for bail, proposing a bail package of close to $1 million. The next day, a bail hearing was held, during which the Court inquired of the Government about the defendant's sentencing exposure if convicted at trial. The Government responded:

Your Honor, Mr. Ivezaj, we believe that Mr. Ivezaj's sentence would be in the teens.

Mr. Ivezaj is charged in a 924(c) count, which raises a mandatory term of imprisonment to run consecutive to the other charges. He is also charged in two racketeering counts, a violent act in aid of racketeering, gambling counts and, as Mr.

Rubinstein pointed out, the Government has indicated that we intend to potentially charge Mr. Ivezaj with other acts of violence. . . . We believe that Mr. Ivezaj's sentence would probably be in the teens, maybe 13 or 14 years as a result of the offenses that he's currently been charged with."

Counsel for Ivezaj replied that he expected the sentence to be in the range of 24-35 months, due in part to his view that the evidence in support of the gun charge was "problematic to the Government." Focusing on the importance of witness testimony to proof of the § 924(c) count, Mr. Rubenstein represented that the Government had failed to identify "any witness that they have: their wired witnesses, their cooperating witnesses who are unwired, their surveillance people, not one person [who] put a gun in Mr. Ivezaj's hand when any of these 'acts of violence' or any other time that he's alleged to be involved with."

While acknowledging that the security offered by the defendant was "very substantial," the Court denied the application for bail. It noted that the Government's evidence against the defendant was "extraordinarily strong" and that the defendant was aware of both the strength of the case and the fact that he faced substantial penalties if convicted at trial, particularly given the inclusion of the firearm charge. In light of these observations, the Court concluded that "the motive [on the part of the defendant] to confront the Government's evidence and to do ...

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