     06-3112-cr (L)
     United States v. Rudaj (Ivezaj)



 1                                     UNITED STATES COURT OF APPEALS
 2
 3                                        FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                              August Term, 2007
 8
 9   (Argued:     May 13, 2008                                                 Decided: June 11, 2009)
10
11      Docket Nos. 06-3112-cr (L), 06-3275-cr (CON), 06-3296-cr (CON), 06-3339-cr (CON), 06-
12                                 3372-cr (CON), 06-5908-cr (CON)
13
14
15
16
17
18                                          UNITED STATES OF AMERICA ,
19
20                                                  Appellee,
21
22                                                    – v. –
23
24      PRENKA IVEZAJ, NARDINO COLOTTI, ALEX RUDAJ, ANGELO DIPIETRO , NIKOLA DEDAJ, AND
25                                    LJUSA NUCULOVIC,*
26
27                                            Defendants-Appellants.
28
29
30
31
32
33   Before: FEINBERG , MINER, and B.D. PARKER, Circuit Judges.
34
35            Defendants appeal from judgments of conviction entered in the United States District
36   Court for the Southern District of New York (Cote, J.) for racketeering, RICO conspiracy,
37   conspiracy to conduct an illegal gambling business, and using and carrying firearms during and
38   in relation to a crime of violence. Affirmed.
39
40            * The Clerk of Court is directed to amend the official caption as indicated.

                                                        1
 1                                         RICHARD A. GREENBERG (Steven Y. Yurowitz, on the
 2                                         brief), New York, N.Y., for Defendant-Appellant Prenka
 3                                         Ivezaj.
 4
 5                                         RICHARD WARE LEVITT (Yvonne Shivers, on the brief),
 6                                         New York, N.Y., for Defendant-Appellant Nardino Colotti.
 7
 8                                         HAROLD PRICE FAHRINGER (Erica T. Dubno, on the brief),
 9                                         New York, N.Y., for Defendant-Appellant Alex Rudaj.
10
11                                         JONATHAN SVETKEY , New York, N.Y., for Defendant-
12                                         Appellant Angelo DiPietro.
13
14                                         DIARMUID WHITE (Brendan White, on the brief), New
15                                         York, N.Y., for Defendant-Appellant Nikola Dedaj.
16
17                                         JOHN BURKE, Brooklyn, N.Y., for Defendant-Appellant
18                                         Ljusa Nuculovic.
19
20                                         JENNIFER G. RODGERS, Assistant U.S. Attorney (Timothy J.
21                                         Treanor, Benjamin Gruenstein & Jonathan S. Kolodner,
22                                         Asst. U.S. Attorneys, on the brief), for Michael J. Garcia,
23                                         United States Attorney for the Southern District of New
24                                         York, New York, N.Y., for Appellee.
25
26
27

28          BARRINGTON D. PARKER, Circuit Judge:

29          Defendants-Appellants Prenka Ivezaj, Nardino Colotti, Alex Rudaj, Angelo DiPietro,

30   Nikola Dedaj, and Ljusa Nuculovic (collectively “appellants” or “defendants”) appeal from

31   judgments of conviction entered in the United States District Court for the Southern District of

32   New York (Cote, J.) on charges arising from their involvement in a racketeering enterprise. We

33   affirm the convictions for the reasons stated in this opinion and in a companion summary order.

34




                                                     2
 1                                           BACKGROUND

 2          The indictment charged, and the trial evidence, considered in the light most favorable to

 3   the government, established that the appellants were members of the Rudaj Organization (the

 4   “Organization”), a violent Albanian racketeering organization based in New York City and

 5   Westchester County. The government alleged that the Organization sought to challenge, through

 6   violence and intimidation, the primacy of the New York City area’s traditional organized crime

 7   families. Gambling was a particularly active area of competition. After operating illegal

 8   gambling businesses in the Bronx and Westchester County, the Rudaj Organization forcibly took

 9   over several illegal gambling clubs in Astoria, Queens and required other bars and restaurants to

10   install and use its gambling machines. In addition to gambling, the Organization engaged in a

11   variety of other illegal conduct, including extortion, loansharking, and bank fraud.

12          These activities generated an indictment initially containing twenty-one counts, fifteen of

13   which were ultimately presented to the jury. We address here only those relevant to our opinion.

14   Count One charged all of the appellants with substantive racketeering, and Count Two charged

15   them with racketeering conspiracy. See 18 U.S.C. § 1962(c), (d). To establish the pattern of

16   racketeering activity charged in Count One, the government alleged that the defendants engaged

17   in a series of predicate acts, many of which were also charged as separate counts. Of these,

18   Racketeering Acts Four and Five are at the center of our analysis. Racketeering Act Four alleged

19   that Rudaj, Dedaj, Ivezaj, Nuculovic, and DiPietro attempted to extort, conspired to extort, and

20   extorted control of an illegal gambling operation from Fotios Dimopoulos and Antonios

21   Balampanis. Racketeering Act Five charged Rudaj, Colotti, Dedaj, Ivezaj, Nucolovic, and

22   DiPietro with extorting and conspiring to extort the owners of a gambling business, known as


                                                      3
 1   “Soccer Fever,” in violation of New York’s extortion laws. See N.Y. Penal Law §§ 105.13,

 2   155.05, 155.40. All defendants were also charged in Count Thirteen with using and carrying

 3   firearms in aid of racketeering. See 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2.

 4           The government’s evidence included the testimony of investigating officers, various

 5   cooperating witnesses and victims, consensual tape recordings, recorded conversations from Title

 6   III interceptions, as well as physical evidence seized during various searches. At the conclusion

 7   of the trial, the district court dismissed several of the counts. The defendants were then

 8   convicted on all but one of the remaining counts (but not all of the predicate racketeering acts)

 9   and were sentenced to substantial prison terms.

10          The defendants appeal on various grounds. We decide here that control over illegal

11   intangible property – here a gambling operation – is “property” that can be “delivered” under

12   New York’s extortion statute. We also conclude that Balampanis was a proper “victim” of an

13   inchoate extortion offense under New York law; that Count One qualified as a “crime of

14   violence” under 18 U.S.C. § 924(c); and that the district court did not err in applying a role

15   enhancement to Ivezaj’s sentence. Additionally, we decide that the admission of evidence seized

16   from Rudaj’s home, if error at all, was harmless. Accordingly, we affirm the judgments.

17                                             DISCUSSION

18          I.      Whether Illegal Intangible Goods Qualify as “Property” under New York
19                  Extortion Law
20
21          Defendants1 challenge their convictions on Racketeering Acts Four and Five, which

     1
             Several of the defendants simply join in the arguments of their co-defendants where there
     is no inconsistency between those arguments and the arguments made in their own briefs. We
     use the general term “defendants” to avoid confusion.

                                                       4
 1   alleged violations of New York’s extortion laws.2 Their main contention is that the alleged acts

 2   are legally insufficient to sustain a conviction because control over illegal gambling does not

 3   constitute “property” under New York’s extortion law and, even if it did, no property was

 4   “delivered” as is required by the statute. We review de novo the grant or denial of a Rule 29

 5   motion for judgment of acquittal. United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008);

 6   United States v. Florez, 447 F.3d 145, 154 (2d Cir. 2006).

 7           As proof of Racketeering Act Four, the government established that the Organization,

 8   through violence and intimidation, wrested control of certain illegal gambling operations in

 9   Astoria from the Lucchese Crime Family. In June of 2001, members of the Rudaj Organization

10   seriously assaulted Antonios Balampanis, a close companion of Fotios Dimopoulos, a Lucchese

11   family associate who supervised their Astoria operations. Dimopoulos later told Balampanis that

12   his beating had been intended as “a message” for Dimopoulos, and Dimopoulos never returned to

13   gambling clubs in Astoria following the assault.

14          Racketeering Act Five related to the Rudaj Organization’s operation of “barbut,” a

15   lucrative gambling activity in Astoria. In early August 2001, a Gambino associate, Tommy

16   Napoli, opened a gambling club known as “Soccer Fever” that directly competed with barbut and

17   was operated by Mikhail Hirakis. On the club’s first night, Soccer Fever brought in

18   approximately $8,000. The next night, approximately fifteen members of the Organization,

19   including the six defendants, stormed the club with guns on the instruction of Rudaj and broke up

     2
            State law crimes such as extortion can constitute racketeering acts under RICO. 18
     U.S.C. § 1961(1)(A) includes “any act or threat involving . . . extortion, . . . which is chargeable
     under State law and punishable by imprisonment for more than one year” in its definition of
     “racketeering activity.”

                                                        5
 1   the game. They intended to assault Napoli, but when they were unable to locate him, they

 2   assaulted Hirakis instead. Rudaj intimidated the club’s patrons: “I don’t want to see nobody

 3   here. If I see [you] one more time, I swear to God . . . I beat you . . . one by one. I eat you up. . . .

 4   It’s closed.” That was the end of Soccer Fever, and the Organization subsequently extended its

 5   control of illegal gambling in Astoria.

 6           Under New York law, “[a] person obtains property by extortion when he compels or

 7   induces another person to deliver such property to himself or to a third person by means of

 8   instilling in him a fear that, if the property is not so delivered, the actor or another will . . .

 9   [c]ause physical injury to some person in the future . . . .” N.Y Penal Law § 155.05(2)(e)(1).

10   “Property” is defined as “any . . . personal property. . . or any article, substance or thing of value .

11   . . which is provided for a charge or compensation.” N.Y. Penal Law § 155.00(1).

12           The district court instructed the jury that “[t]he term property includes not only money

13   and other physical or tangible things, but also any valuable right considered as a source or

14   element of wealth.” Moreover, “[t]he pursuit of a business, including the solicitation of

15   customers necessary to the conduct of the business, is considered property, as are the proceeds of

16   a business.” Further, the court charged that “[i]t does not matter . . . if the victim’s initial

17   acquisition or possession of tangible property was illegal, or if the business in which the victim is

18   engaged is illegal. Illegally obtained assets and businesses conducted in violation of the law can

19   constitute property.”

20          While acknowledging that an intangible good may constitute property under New York

21   law, defendants challenge this instruction on the ground that “control over illegal gambling” does



                                                         6
 1   not constitute property because a legal right to the alleged property is required before it can

 2   qualify as property under New York law. They contend that because the Luccheses and the

 3   various victims had no legal right to operate an illegal gambling business, Racketeering Acts Four

 4   and Five did not sufficiently allege extortion.

 5           We agree with the district court that an illegal gambling business can constitute property

 6   under New York law. The statute broadly defines “property” as “any . . . personal property, real

 7   property . . . substance or thing of value . . . which is provided for a charge or compensation.”

 8   N.Y. Penal Law § 155.00(1). Illegal intangible property, such as that contemplated here, fits

 9   within this expansive definition: control over illegal gambling is a “thing of value” which is

10   “provided for . . . compensation.”

11           This understanding is consistent with the New York courts’ recognition that intangible

12   property as well as illegal tangible property are covered by the statute. For example, in People v.

13   Garland, 69 N.Y.2d 144, 147 (1987), the New York Court of Appeals held that intangible goods –

14   in that case, a tenant’s right to occupy an apartment – could constitute “property,” noting that “an

15   interest need not be transferable to constitute ‘property’ [under N.Y. Penal Law § 155.00(1)].”

16   See also People v. Spatarella, 34 N.Y.2d 157, 162 (1974) (“property” includes intangible goods,

17   because “[s]urely the extortionist’s demand for the business itself, or a part of it, is, if anything,

18   more egregious than the demand simply for money”); People v. Dixson, 798 N.Y.S.2d 659, 664

19   (Crim. Ct. 2005). Under New York law, illegal tangible goods can also constitute “property.” See

20   People v. Hardwick, 524 N.Y.S.2d 798, 800 (App. Div. 1988) (“That it was unlawful for [the

21   victims] to possess the narcotics is no defense to the defendant’s unlawful taking of them.”);



                                                         7
 1   People v. Izzo, 409 N.Y.S.2d 623, 624 (Crim. Ct 1978) (“Ownership . . . is a broad concept. Even

 2   a person who has himself stolen property has a right of possession superior to that of a third

 3   person who wrongfully takes it from him . . . .”); see generally People ex rel. Short v. Warden of

 4   City Prison, 130 N.Y.S. 698, 700 (App. Div. 1911) (“‘[P]roperty’” is “intended to embrace every

 5   species of valuable right and interest, and whatever tends in any degree, no matter how small, to

 6   deprive one of that right, or interest, deprives him of his property.”). Given such an expansive

 7   definition of “property,” and the absence of any legality requirement in the statute, we see no

 8   indication that the New York legislature intended that illegal intangible assets could not be the

 9   subject of extortion.

10          Our jurisprudence interpreting the Hobbs Act also supports our analysis here. The Hobbs

11   Act was modeled on the New York extortion statute, and New York courts have often looked to

12   Hobbs Act jurisprudence for guidance. See, e.g., People v. Capparelli, 603 N.Y.S.2d 99, 104 n.1

13   (Sup. Ct. 1993) (citing cases for the proposition that “New York appellate courts frequently refer

14   to federal cases interpreting the Hobbs Act”); see also Scheidler v. Nat’l Org. for Women, Inc.,

15   537 U.S. 393, 403 (2003) (“Congress used two sources of law as models in formulating the Hobbs

16   Act: the Penal Code of New York and the Field Code, a 19th-century model penal code.”). In

17   United States v. Gotti, 459 F.3d 296 (2d Cir. 2006), we reviewed our Hobbs Act precedents

18   following the Supreme Court’s decision in Scheidler, and we reaffirmed that “intangible property

19   rights can qualify as extortable property under the Hobbs Act . . . .” 459 F.4d at 323. Moreover,

20   we held that such rights “can qualify as extortable property under the Hobbs Act regardless of

21   whether its exercise, transfer, or sale would be legal.” Id. at 325. Importantly, we did not “see



                                                       8
 1   any basis for imposing a ‘legality’ requirement on the extortion of both tangible and intangible

 2   property.” Id. at 326.

 3          Defendants argue that even if control over an illegal gambling business could be extorted

 4   under New York law, defendants did not “obtain” this property because it was never “delivered”

 5   to them. See N.Y. Penal Law § 155.05(2)(e). We find this interpretation imaginative but overly

 6   literal and, in any event, not supported by the law. Under New York law, an intangible property

 7   right – which by definition cannot be “delivered” in the traditional sense – can be extorted. See

 8   Garland, 69 N.Y.2d at 146-47; Spatarella, 34 N.Y.2d at 162 (“property” under the extortion

 9   statute includes intangible rights). For similar reasons, we reject defendants’ argument that they

10   could not have transferred or delivered control over a criminal business “in any sense that the law

11   protects.” Again, it is established under New York law that illegal goods, such as drugs or drug

12   proceeds, which are not capable of lawful transfer, fall under the extortion statute. See Hardwick,

13   524 N.Y.S.2d at 800.

14          II.     Whether Balampanis is a Victim of Inchoate Extortion Offenses Under New York
15                  Law

16          The defendants also argue that “[w]hatever the reason for Balampanis’s beating, he could

17   not be the actual or intended ‘victim’ of an inchoate extortion offense.” New York law requires

18   that the victim of a substantive extortion offense be an “owner” of the extorted property.

19   Defendants focus on the use of the word “owner” in the statute, which provides that “[w]hen

20   property is taken, obtained or withheld by one person from another person, an ‘owner’ thereof

21   means any person who has a right to possession thereof superior to that of the taker, obtainer or

22   withholder.” N.Y. Penal Law § 155.00(5). They contend that the government’s proof and the

                                                      9
 1   court’s charge were insufficient because the “victim” of extortionate conduct must own or control

 2   the property extorted, and Balampanis did neither.

 3          The district court rejected the defendants’ arguments. On this count, in response to a jury

 4   request on this issue,3 the court instructed the jury as follows:

 5          THE COURT: Racketeering Act Four charges three crimes. To find that
 6          the crime of extortion was committed, you must find that at least Foti
 7          Dimopoulos was a victim of the extortion.
 8
 9          With respect to the crimes of attempted extortion and conspiracy to commit
10          extortion, you must find that at least one of the two identified victims in
11          Racketeering Act Four, Foti Dimopoulos and Tony Balampanis, was an
12          intended victim of those crimes.
13
14          You may also consider or lump together the evidence regarding both
15          identified victims to decide whether the government has proven any one of
16          these three charges; extortion, attempted extortion or conspiracy to commit
17          extortion. Remember in this context that it is a crime to use force or
18          violence against one person to obtain property from another with that
19          second person’s consent by instilling fear in that second person, as I have
20          explained in my charge.
21

22          Given the tripartite nature of Racketeering Act Four – which alleged that several of the

23   defendants engaged in extortion conspiracy, substantive extortion, and attempted extortion and

24   that “any one of which . . . constitutes the commission of Racketeering Act Four” – we find no

25   error in the court’s instructions. The district judge properly charged that Balampanis could be a

26   victim for the attempt and conspiracy offenses. The fact that Balampanis was not actually the

27   owner does not matter for these offenses; rather, the key inquiry for the jury in an attempted

28   extortion charge is whether the defendants thought he was. See People v. Davis, 72 N.Y.2d 32, 36

      3
            The jury sent a note during deliberations asking whether “the victims, Foti Dimopoulos
      and Tony Balampanis, [should be] looked at individually or lumped together as victims[.]”

                                                       10
 1   (1988) (“[F]actual impossibility will not provide a defense to a prosecution for attempted

 2   intentional acts . . . .”); People v. Gardner, 144 N.Y. 119, 124-26 (1894) (factual impossibility is

 3   no defense to attempt because attempt “depends upon the mind and intent of the wrongdoer, not

 4   on the effect or result upon the person sought to be coerced”); N.Y. Penal Law § 110.10 (“If the

 5   conduct in which a person engages otherwise constitutes an attempt to commit a crime . . . , it is

 6   no defense . . . that the crime charged to have been attempted was . . . factually or legally

 7   impossible of commission . . . .”). The same is true for conspiracy; only the defendants’ state of

 8   mind is relevant. See People v. Russell, 555 N.Y.S.2d 67, 68 (App. Div. 1990) (impossibility is

 9   not a defense to conspiracy).

10          Because there was ample evidence that the defendants believed Balampanis, a close

11   associate of Dimopoulos, helped control illegal gambling in Queens – no matter whether he did

12   or not – we conclude that the district court did not err in denying the defendants’ Rule 29 motion

13   and charging the jury that Balampanis could be a victim of the attempt and conspiracy charges.

14          III.    Defendants’ 18 U.S.C. § 924(c) Convictions

15          Next, defendants challenge their firearms convictions. Under 18 U.S.C. § 924(c)(1)(A),

16   “any person who, during and in relation to any crime of violence . . . for which the person may be

17   prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any

18   such crime, possesses a firearm” is guilty of a federal crime. Count Thirteen charged the

19   defendants with violating this provision, specifically naming Count One, the substantive

20   racketeering charge, as the predicate crime of violence.




                                                       11
 1          Defendants raise two challenges to their § 924(c) conviction. First, they challenge the

 2   district court’s ruling that Count One qualifies as a “crime of violence.” The district court held

 3   that the convictions fell within § 924(c), because Count One specifically charged violent predicate

 4   racketeering acts, even though a conviction under § 1962 is not necessarily a conviction for a

 5   crime of violence.

 6          A crime of violence is an offense that “has as an element the use, attempted use, or

 7   threatened use of physical force against the person or property of another” or “by its nature,

 8   involves a substantial risk that physical force against the person or property of another may be

 9   used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(A), (c)(3)(B). When

10   determining whether an offense is a “crime of violence” under the statute, we employ a

11   “categorical approach,” in which “we focus on the intrinsic nature of the offense rather than on the

12   circumstances of a particular crime.” United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006).

13   In Acosta, we concluded that a conspiracy to “injure, oppress, threaten, or intimidate any person”

14   in connection with exercising their constitutional rights under 18 U.S.C. § 241 was a crime of

15   violence. We reasoned that “[s]ince applying physical force is perhaps the most obvious way to

16   injure, threaten, or intimidate, a conspiracy to engage in such conduct is, by its nature, a

17   conspiracy that involves a ‘substantial risk that physical force’ will be used.” Id. at 136.

18          Applying this categorical approach, we first look to “the intrinsic nature” of the statute.

19   Section 1962(c), the statutory basis for the substantive racketeering offense in Count One,

20   provides that “[i]t shall be unlawful for any person employed by or associated with any enterprise

21   engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or



                                                       12
 1   participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of

 2   racketeering activity or collection of unlawful debt.” A pattern of racketeering activity is defined

 3   as “at least two acts of racketeering activity . . . .” 18 U.S.C. § 1961(5). See United States v.

 4   Gotti, 451 F.3d 133, 136-37 (2d Cir. 2006) (elaborating on how a “pattern of racketeering” may be

 5   proven).

 6          Because racketeering offenses hinge on the predicate offenses comprising the pattern of

 7   racketeering activity, we look to the predicate offenses to determine whether a crime of violence is

 8   charged. Applying this reasoning, we hold that where the government proves (1) the commission

 9   of at least two acts of racketeering and (2) at least two of those acts qualify as “crime[s] of

10   violence” under § 924(c), a § 1962 conviction serves as a predicate for a conviction under

11   § 924(c).4 We thus find no error in the district court’s conclusion that the charged RICO offense

12   was a crime of violence. The underlying predicate acts, with one exception,5 allegedly involved

13   the use of violent means, including loansharking and violent acts of extortion; unquestionably, the

14   conduct charged in Count One posed a “substantial risk that physical force against the person or

15   property of another” would be used in its commission. See 18 U.S.C. § 924(c)(3)(A), (c)(3)(B).




      4
               This conclusion aligns neatly with our caselaw that a RICO conspiracy can constitute a
      “crime of violence” under statutes that provide virtually identical definitions of that term to the
      definition provided in § 924(c). See, e.g., United States v. Ciccone, 312 F.3d 535, 541-42 (2d
      Cir. 2002) (holding that the charged RICO conspiracy was a crime of violence under the Bail
      Reform Act); United States v. Doe, 49 F.3d 859, 866-67 (2d Cir. 1995) (finding no error in
      district court’s ruling that a RICO conspiracy was a crime of violence under the Juvenile
      Delinquency Act).
      5
               The only predicate act that was not a crime of violence was one charging gambling
      offenses.

                                                        13
 1          The defendants’ second contention is that, because the violent predicates were state law

 2   offenses, their crime of violence was not one “prosecut[able] in a court of the United States” as

 3   required by § 924(c). We conclude that whether the alleged firearms conduct was premised on

 4   state or federal predicates is irrelevant, provided that the government proves, as it did here, that the

 5   § 1962 offense alleging the pattern of racketeering is a crime of violence. The jury only considered

 6   the state law predicates to determine that the defendant used firearms as charged in Count One,

 7   which, as previously discussed, is undeniably a crime “prosecut[able] in a court of the United

 8   States” and a “crime of violence” for the purposes of § 924(c).

 9          IV.     Whether Evidence from Rudaj’s Home Should Have Been Suppressed

10          We next consider whether the district court erred in admitting evidence taken from a search

11   of Rudaj’s bedroom and walk-in closet. On an appeal from a district court’s ruling on a motion to

12   suppress evidence, we review the court’s factual findings for clear error, viewing the evidence in

13   the light most favorable to the government. The district court’s legal conclusions are reviewed de

14   novo. See United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir. 2004).

15          At approximately 6:30 in the morning on October 26, 2004, federal law enforcement agents

16   knocked on Rudaj’s door to execute an arrest warrant. The agents did not have a search warrant

17   for Rudaj’s home. Rudaj answered the door unarmed and in his boxer shorts; the government

18   accompanied him inside, purportedly to get him dressed. Rudaj told the agents that he had a

19   loaded hunting rifle next to his bed, which they would see when they entered his bedroom. He also

20   said that no other individuals other than his wife and children were in the home.




                                                        14
 1          After handcuffing Rudaj, the agents then secured the rest of his family members on the first

 2   floor and executed what they termed a “protective sweep,” which included, as one agent testified,

 3   “the bedroom in part because we have to be in the residence in order to get him dressed.” Agent

 4   Gregory Massa testified that he and his partner went upstairs to the master bedroom, and after

 5   observing the rifles propped against the bed, cleared the bedroom to ensure the safety of

 6   themselves and the other agents and to confirm that no one else was there.

 7          They first entered the walk-in closet in the master bedroom because it “posed the greater

 8   threat.” They saw the barrel of a rifle above a pile of clothing and proceeded to clear that corner of

 9   the closet. Agent Massa testified that while doing so, they “noticed another weapon that was

10   shorter, another rifle that was shorter in length, and several clear plastic bags which you could

11   clearly see that contained gun cleaning equipment, things of that nature, all right in the same area.”

12   They also saw a green handgun case and two knives. The agents then cleared the second smaller

13   closet and saw another bag, similar to those seized from the walk-in closet, and a box that

14   contained handgun holsters, a taser, and handcuffs.

15          The district court denied in part and granted in part Rudaj’s motion to suppress the

16   evidence taken from his home. The court first concluded that the search of his closets could not be

17   characterized as a protective sweep incident to his arrest. Applying Maryland v. Buie, 494 U.S.

18   325 (1990), the district court found that the sweep did not involve a search “adjoining the place of

19   arrest” nor did the agents have articulable facts regarding the presence of others posing a danger to

20   them to justify a more far-reaching search.




                                                       15
 1          Nevertheless, the court ruled that the evidence from the search of the bedroom –– the two

 2   guns on either side of the night stand and the money and keys found on the dresser –– was

 3   admissible. Looking to our holding in United States v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir.

 4   1977), in which we held that officers have a duty to find clothing when the defendant is arrested in

 5   a state of undress, the court concluded that the agents properly secured Rudaj and, in looking for

 6   his clothing in the bedroom, could seize the contraband in his bedroom that was in plain view.

 7          The district court further ruled that the evidence from the walk-in closet was admissible as

 8   a security sweep incident to the search for Rudaj’s clothing. The district court reasoned that

 9   “[t]here is every reason to find that the balance struck in Buie should extend to protective searches

10   that are conducted incident to the entry into a residence for the purpose of securing clothes for an

11   insufficiently dressed arrestee.” Therefore, because the area in the walk-in closet could potentially

12   harbor a dangerous individual, the agents appropriately opened the closet door and observed the

13   barrel of a handgun lying on a shelf in plain view and were therefore entitled to search the back of

14   the closet and seize the weapon. While there, the court reasoned, they could also seize other

15   incriminating evidence in plain view. However, the district court concluded that the evidence from

16   the second, smaller closet was inadmissible because the objects removed from that closet – a white

17   plastic bag and a plain cardboard box – were not “patently incriminating” because, unlike the white

18   plastic bags properly removed from the master closet, the “the bag in the smaller closet did not

19   reveal any incriminating contents through the transparent plastic.” Thus, the agents were not

20   justified in removing that bag from the closet to assess its contents.




                                                        16
 1          We agree that the agents were permitted to enter Rudaj’s bedroom to find clothing for him

 2   and seize any incriminating evidence that was in plain view. However, Rudaj also argues that the

 3   district court wrongfully expanded the scope of the “protective sweep” doctrine by admitting the

 4   evidence seized from the closets. In United States v. Miller, 430 F.3d 93 (2d Cir. 2005), decided

 5   after the district court’s denial of Rudaj’s suppression motion, we specifically held that the

 6   “protective sweep” doctrine delineated in Buie applies in “circumstances other than during the in-

 7   home execution of an arrest warrant.” Miller, 430 F.3d at 100. Similarly, we stated that protective

 8   sweeps would be justified only if the police possessed “specific, articulable facts giving rise to a

 9   reasonable inference of danger.” Id. Rudaj argues that because the officers had no articulable

10   reason to believe that the closets posed any danger, the district court should have suppressed all of

11   the evidence from the closets.

12          We need not even resolve the question of whether Miller extends to the search of the

13   closets at issue here, because we conclude that the admission of the evidence against Rudaj, if error

14   at all, was harmless. A district court’s erroneous admission of evidence is harmless “if the

15   appellate court can conclude with fair assurance that the evidence did not substantially influence

16   the jury.” United States v. Garcia, 291 F.3d 127, 143 (2d Cir. 2002) (quoting United States v. Rea,

17   958 F.2d 1206, 1220 (2d Cir. 1992)). In conducting harmless error review, we consider the

18   following factors: “(1) the overall strength of the prosecution’s case; (2) the prosecutor’s conduct

19   with respect to the improperly admitted evidence; (3) the importance of the wrongly admitted

20   [evidence]; and (4) whether such evidence was cumulative of other properly admitted evidence.”

21   United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007) (quoting Zappulla v. New York, 391



                                                       17
 1   F.3d 462, 468 (2d Cir. 2004) (internal quotation marks omitted)); see also United States v. Garcia,

 2   413 F.3d 201, 217 (2d Cir. 2005).

 3          Although the government discussed the evidence at summation, we conclude that the

 4   admission of the evidence was harmless error. First, the government’s evidence as to the issue of

 5   Rudaj’s involvement in violent conduct was extensive. Several of Rudaj’s recorded conversations

 6   in which he described engaging in violent extortionate conduct involving guns were heard by the

 7   jury. Additionally, multiple witnesses testified about the violent crimes that Rudaj committed in

 8   furtherance of the Organization. Thus, the evidence consisting of the rifles and ammunition seized

 9   at the scene was cumulative of the testimonial evidence regarding Rudaj’s participation in violent

10   racketeering acts. Further, it is unlikely that Rudaj was prejudiced by the government’s statements.

11   The district court instructed the jury that it could only convict Rudaj of the § 924(c) charge if it

12   found that he had used or carried a firearm in connection with either the extortion of Dimopoulos

13   and Balampanis or that of the Soccer Fever victims. In light of these instructions, the seized

14   evidence from his house had little impact on Rudaj’s § 924(c) conviction. Because the government

15   adduced ample evidence to establish Rudaj’s commission of the substantive RICO offense apart

16   from the admission of the guns, we see no reason to disturb his conviction.

17          V.      Ivezaj’s Role Enhancement

18          Finally, Ivezaj challenges his sentence on the ground that any aggravating role enhancement

19   the district court applied should have been based on the conduct alleged in the underlying predicate

20   acts, rather than on his role in the RICO enterprise as a whole. We typically review a district

21   court’s factual findings in support of a role enhancement for clear error. See United States v.



                                                        18
 1   Huerta, 371 F.3d 88, 91 (2d Cir. 2004). However, because Ivezaj’s challenge requires us to make

 2   a legal determination about the applicability of the enhancement, we review the district court’s

 3   determination de novo. See United States v. Chacko, 169 F.3d 140, 150 (2d Cir. 1999).

 4           U.S.S.G. § 2E1.1 addresses the base offense levels for RICO offenses, requiring a base

 5   offense level of 19 or the offense level applicable to the underlying racketeering activity.

 6   Application Note 1 to the Guideline provides that:

 7                    Where there is more than one underlying offense, treat each
 8                    underlying offense as if contained in a separate count of conviction
 9                    for the purposes of subsection (a)(2). To determine whether
10                    subsection (a)(1) or (a)(2) results in the greater offense level, apply
11                    Chapter Three, Parts A, B, C, and D to both (a)(1) and (a)(2). Use
12                    whichever subsection results in the greater offense level.
13
14   U.S.S.G. § 2E1.1, cmt. n.1. Because the Application Note treats each predicate act as “if [it were]

15   contained in a separate count of conviction” for purposes of determining the offense level for the

16   alleged racketeering activity, Ivezaj argues that the district court failed to consider his role in each

17   charged act when applying the role enhancement.

18           We agree with the district court that a defendant’s role adjustment is to be made on the

19   basis of the defendant’s role in the overall RICO enterprise. In United States v. Damico, the

20   Seventh Circuit concluded that:

21                    [The Application Note] only requires the underlying offenses to be
22                    treated separately “for the purposes of subsection (a)(2)” – that is,
23                    only for the purpose of establishing the base offense level
24                    applicable to the RICO conspiracy. The note does not say that the
25                    separate treatment extends as well to application of the Chapter
26                    Three adjustments.
27
28   99 F.3d 1431, 1437 (7th Cir. 1996); accord United States v. Yeager, 210 F.3d 1315, 1316 (11th

29   Cir. 2000).

                                                        19
 1          We find Damico persuasive. First, as the government contends, analyzing a defendant’s

 2   role in the overall RICO enterprise makes a good deal more sense than considering his role in

 3   each underlying predicate. In the case of a § 3B1.1(b) role enhancement, it makes little sense to

 4   allow a defendant who acts in a leadership capacity in a wide-ranging criminal enterprise to have

 5   his offense level adjusted on the basis of his participation in discrete racketeering acts. For

 6   example, a defendant who served as a leader or manager of an extensive RICO enterprise should

 7   not be able to avoid a role enhancement simply because certain predicate acts involved fewer than

 8   five participants or criminal activity that was not extensive. Second, we agree that the language of

 9   the Guidelines is clear that the requirement to look at each individual act in a RICO offense is

10   only for the purpose of establishing the base level offense, not for applying the Chapter Three

11   adjustments.

12          Therefore, we agree with the Seventh Circuit that there is “nothing in section 2E1.1 or its

13   commentary to indicate that an adjustment like that in section 3B1.1 should not be applied to a

14   RICO base offense level . . . in the same way that it would to any other base offense level,” that is,

15   “by looking to the count of conviction . . . and all relevant conduct . . . .” Damico, 99 F.3d at

16   1437. Because there was sufficient evidence to show that Ivezaj qualified for the enhancement for

17   his role in the overall RICO enterprise, we affirm his sentence.

18                                             CONCLUSION

19          For the foregoing reasons, the judgments of conviction are AFFIRMED.

20




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