17‐2570‐cr
United States v. Dervishaj


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 18th day of September, two thousand nineteen.

PRESENT:         RICHARD C. WESLEY,
                 DENNY CHIN,
                 JOSEPH F. BIANCO,
                             Circuit Judges.

------------------------------------x

UNITED STATES OF AMERICA
               Appellee,

                             v.                                            17‐2570‐cr

REDINEL DERVISHAJ, AKA Redi, AKA Red,
               Defendant‐Appellant.*

------------------------------------x

FOR APPELLEE:                                       Emily Berger, Nadia I. Shihata, Patrick
                                                    T. Hein, Assistant United States
                                                    Attorneys, for Richard P. Donoghue,


*      The Clerk of Court is respectfully directed to amend the official caption to conform to
the above.
                                                 United States Attorney for the Eastern
                                                 District of New York, Brooklyn, New
                                                 York.

FOR DEFENDANT‐APPELLANT:                         Redinel Dervishaj, pro se, Pine Knot,
                                                 Kentucky.

              Appeal from the United States District Court for the Eastern District of

New York (Vitaliano, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Defendant‐appellant Redinel Dervishaj appeals the judgment of the

district court entered August 16, 2017, convicting him of twelve counts: three counts of

Hobbs Act extortion conspiracy; three counts of attempted Hobbs Act extortion; three

counts of Hobbs Act violence‐in‐furtherance‐of‐extortion; and three counts of

possession or brandishing of a firearm in furtherance of a crime of violence. Dervishaj

was principally sentenced to a mandatory minimum term of 57 yearsʹ imprisonment.

Dervishaj, proceeding pro se,1 raises a number of issues that he argues warrant a new

trial or vacatur of one of more of his counts of conviction. We assume the partiesʹ

familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.




1      Following the withdrawal of several appointed CJA attorneys, Dervishaj moved to
proceed pro se and we granted the motion.

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              First, Dervishaj argues that the government committed prosecutorial

misconduct by suborning perjury. This argument is without merit. To the extent

there were discrepancies between witnessesʹ pre‐trial testimony and trial testimony,

Dervishaj was entitled to draw out these discrepancies on cross‐examination, and the

jury was ʺentitled to weigh the evidence and decide the credibility issues for itself.ʺ

United States v. McCarthy, 271 F.3d 387, 399 (2d Cir. 2001). Dervishaj has failed to show

that ʺ[s]imple inaccuracies or inconsistencies in testimony [rose] to the level of perjury,ʺ

United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001), or that the government

suborned such perjury.

              Dervishaj next argues that the evidence resulting from the governmentʹs

seizure of a vehicle at 5:47 a.m. on December 3, 2016 should have been suppressed. In

evaluating a district courtʹs ruling on a motion to suppress, ʺwe review legal

conclusions de novo and findings of fact for clear error.ʺ United States v. Bershchansky,

788 F.3d 102, 108 (2d Cir. 2015). Although the warrant in question was to be executed

between the hours of 6:00 a.m. and 10:00 p.m., the district court properly concluded that

this technical violation of Federal Rule of Criminal Procedure 41 was neither intentional

nor prejudicial. See United States v. Lambus, 897 F.3d 368, 391 (2d Cir. 2018). Dervishaj

was already in custody when the vehicle was seized, it was seized from a public street

in New York City, and there is no reason to believe that the seizure would have been

less abrasive if conducted 15 minutes later.



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              Third, Dervishaj argues that the district court abused its discretion in

admitting one photograph found on Dervishajʹs co‐conspiratorʹs cellphone showing a

single handgun resting on a target at a gun range. We review a district courtʹs

evidentiary rulings ʺunder a deferential abuse of discretion standardʺ and will ʺdisturb

an evidentiary ruling only where the decision to admit or exclude evidence was

manifestly erroneous.ʺ United States v. Litvak, 889 F.3d 56, 67 (2d Cir. 2018) (internal

quotation marks omitted). The district courtʹs finding that the probative value of the

photograph was not substantially outweighed by the danger of unfair prejudice was not

an abuse of discretion. See Fed. R. Evid. 403. The photograph was probative of

Dervishajʹs co‐conspiratorʹs access to and comfort level with firearms, and it did not

show anyone holding the gun or in any way suggest that the possession or use of the

gun was illegal. See United States v. Roldan‐Zapata, 916 F.2d 795, 804 (2d Cir. 1995).

              Fourth, Dervishaj contends that the nine Hobbs Act charges are

multiplicitous in violation of the Fifth Amendmentʹs Double Jeopardy Clause. This

argument is waived. Pursuant to Federal Rule of Criminal Procedure 12(b)(3), a

defendant must raise arguments based on defects in the indictment, including ʺcharging

the same offense in more than one count (multiplicity),ʺ by pretrial motion ʺif the basis

for the motion is then reasonably available and the motion can be determined without a

trial on the merits.ʺ Here, the basis for a motion challenging multiplicity was available

when the Third Superseding Indictment was filed in February 2016, more than a month



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before trial. No objection was then raised. See United States v. Chacko, 169 F.3d 140,

145 (2d Cir. 1999) (ʺ[A] Double Jeopardy challenge can be waived . . . if not asserted at

the district court level.ʺ). And in any event, the district court sentenced Dervishaj

concurrently ‐‐ to one dayʹs imprisonment ‐‐ on each of the nine extortion‐related

counts. Because erroneous multiplicity, if any, in the indictment did not affect

Dervishajʹs term of imprisonment, any error did not seriously affect the fairness of the

proceedings below.

               Fifth, Dervishaj argues that his convictions under 18 U.S.C. § 924(c) must

be vacated because none of the predicate offenses are crimes of violence. We review de

novo whether a crime is categorically a ʺcrime of violenceʺ under 18 U.S.C. § 924(c). See

United States v. Hill, 890 F.3d 51, 54‐55 (2d Cir. 2018). Under § 924(c), it is a federal

crime to use or carry a firearm during and in relation to a crime of violence, or to

possess a firearm in furtherance of a crime of violence. A crime of violence is a federal

felony that:

               (A)   has as an element the use, attempted use, or
                     threatened use of physical force against the person or
                     property of another [(the ʺElements Clauseʺ)], or

               (B)   by its nature, involves a substantial risk that physical
                     force against the person or property of another may
                     be used in the course of committing the offense [(the
                     ʺResidual Clauseʺ)].

18 U.S.C. § 924(c)(3). We need not consider whether Dervishajʹs convictions are crimes

of violence under the Residual Clause because his Hobbs Act violence‐in‐furtherance‐



                                              5
of‐extortion convictions are plainly crimes of violence under the Elements Clause.

               The Third Superseding Indictment charged Dervishaj with ʺknowingly

and intentionally commit[ting and threatening] physical violence to [John Does #1, #2,

and #3] in furtherance of a plan and purpose to obstruct, delay and affect commerce

. . . , by extortion, to wit: a plan and purpose to obtain proceeds from [John Does #1,

#2, and #3], with [their] consent, which consent was to be induced by wrongful use of

actual and threatened force, violence and fear of physical injury.ʺ2 Gov. App. at 153‐54.

The district court instructed the jury that to convict on Counts Three, Seven, and

Eleven, the government had to prove that (1) ʺthe defendant threatened (or, for count

11, committed) physical violence to any person or property,ʺ (2) ʺthe physical violence

threatened or committed furthered a plan or purpose to commit Hobbs Act extortion,ʺ

and (3) ʺthe plan or purpose to commit Hobbs Act extortion, if successful, would have

in any way or degree obstructed, delayed, or affected commerce or the movement of

any article or commodity in commerce.ʺ Trial Tr. at 1748 For the jury to convict

Dervishaj on these counts, therefore, it had to find that Dervishaj threatened or

committed physical violence to anotherʹs person or property. This element plainly

meets § 924(c)(3)(A)ʹs definition of ʺuse, attempted use, or threatened use of physical

force against the person or property of another.ʺ Thus, Hobbs Act violence‐in‐



2       This crime is distinct from the crimes of Hobbs Act extortion and Hobbs Act robbery.
See Scheidler v. Natʹl Org. for Women, 547 U.S. 9, 22 (2006) (noting that the ʺHobbs Act crime of
using violence in furtherance ofʺ robbery or extortion is a ʺseparateʺ crime from Hobbs Act
extortion and robbery).

                                                 6
furtherance‐of‐extortion as charged here is categorically a crime of violence. In its

verdict sheet, the jury specifically found that the government proved beyond a

reasonable doubt that Dervishaj possessed and brandished a firearm with respect to

each of Counts Three, Seven, and Eleven. Accordingly, Dervishajʹs § 924(c) convictions

stand.

              Finally, Dervishaj argues that there is insufficient evidence to support his

convictions on the § 924(c) counts. We are unpersuaded. The evidence amply

supports Dervishajʹs § 924(c) convictions because as to Count Four, the evidence

demonstrates that Dervishaj actually possessed a firearm that was used to extort. And

as to Counts Eight and Twelve, the evidence shows that Dervishaj aided and abetted

the commission of extortionate acts furthered by the use or possession of a firearm. See

Rosemond v. United States, 572 U.S. 65, 71‐74 (2014); United States v. Prado, 815 F.3d 93,

105 (2d Cir. 2016).

                                       *      *      *

              We have considered all of Dervishajʹs remaining arguments and find them

to be without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                           FOR THE COURT:
                                           Catherine OʹHagan Wolfe, Clerk of Court




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