Opinion
No. S2 04 CR 1110 (DLC).
August 31, 2005
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. 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. 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.
While the Government's motion sought the severance of eight defendants, one of that number — Joseph Genua — has since entered a plea of guilty.
The seventh defendant is Ljusa Nuculovic.
Background
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 of victims.
Discussion
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. (citation omitted).
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.
Conclusion
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.
SO ORDERED.