Petition for Writ of Certiorari — Redinel Dervishaj, aka Redi, aka Red, Petitioner v. United States

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 court's 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 "summary order").

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.

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UNITED STATES OF AMERICA

Appellee,

17-2570-cr

v.

REDINEL DERVISHAJ, AKA Redi, AKA Red,

Defendant-Appellant.*

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Emily Berger, Nadia I. Shihata, Patrick

T. Hein, Assistant United States

Attorneys, for Richard P. Donoghue,

FOR APPELLEE:

The Clerk of Court is respectfully directed to amend the official caption to conform to

the above.

VI

United States Attorney for the Eastern

District of New York, Brooklyn, New

York.

Redinel Dervishaj, pro se, Pine Knot,

Kentucky.

FOR DEFENDANT-APPELLANT:

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

New York (Vitaliano, /.).

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 years' 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 parties

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.

VII

.

First, Dervishaj argues that the government committed prosecutorial

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

there were discrepancies between witnesses' pre-trial testimony and trial testimony,

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

jury was "entitled to weigh the evidence and decide the credibility issues for itself.

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

that "[sjimple inaccuracies or inconsistencies in testimony [rose] to the level of perjury,

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 government's

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

)

evaluating a district court's ruling on a motion to suppress, "we review legal

conclusions de novo and findings of fact for clear error." 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.

VIII

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

admitting one photograph found on Dervishaj's co-conspirator's cellphone showing a

single handgun resting on a target at a gun range. We review a district court's

evidentiary rulings "under a deferential abuse of discretion standard" and will "disturb

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

manifestly erroneous."

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

quotation marks omitted). The district court's 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

Dervishaj's co-conspirator's aecess 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 Amendment's 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 "charging

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

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

trial on the merits." 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) ("[A] Double Jeopardy challenge can be waived ... if not asserted at

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

concurrently — to one day's imprisonment — on each of the nine extortion-related

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

Dervishaj's 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 "crime of violence" 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 "Elements Clause")], 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

"Residual Clause")].

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

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

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

The Third Superseding Indictment charged Dervishaj with "knowingly

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."2 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) "the defendant threatened (or, for count

11, committed) physical violence to any person or property," (2) "the physical violence

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

and (3) "the 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." 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 another's person or property. This element plainly

meets § 924(c)(3)(A)'s definition of "use, attempted use, or threatened use of physical

force against the person or property of another." Thus, Hobbs Act violence-in-

2

This crime is distinct from'the crimes of Hobbs Act extortion and Hobbs Act robbery.

See Scheidler v. Nat'l Org. for Women, 547 U.S. 9, 22 (2006) (noting that the "Hobbs Act crime of

using violence in furtherance of' robbery or extortion is a "separate" crime from Hobbs Act

extortion and robbery).

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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, Dervishaj's § 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 Dervishaj's § 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 Dervishaj's 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 O'Hagan Wolfe, Clerk of Court

XII

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

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

5th day of December, two thousand nineteen.

United States of America,

Appellee,

ORDER

v.

Docket No: 17-2570

Redinel Dervishaj, AKA Redi, AKA Red,

Defendant - Appellant.

Appellant, Redinel Dervishaj, filed a petition for panel rehearing, or, in the alternative, for

rehearing en banc. The panel that determined the appeal has considered the request for panel

rehearing, and the active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

e*

XIII

APPENDIX

EXHIBIT #1-1 pg. EXHIBIT #2 - 1 pg. EXHIBIT #3 - ft pgs. -

Sentencing Transcript Cover Page

Sentencing Transcript pg. 14

George Stoupas' Complaint Report Worksheet filed with the

NYPD dated September 20, 2012

George Stoupas' two DD5 Pink Narrative Search Worksheets

and one NYPD Internal Affairs Bureau Worksheet

EXHIBIT #5 - 2 pgs. - George Stoupas' FBI 302 Report of his interview with FBI

SA Sean Olsewski and AUSA Nadia Shihata and AUSA Kristin

Mace dated January 14, 2014, detailing what happened during

his encounter with Nikolla

George Stoupas' FBI 302 Report of his interview with FBI

EXHIBIT #6 - 1 pg. SA's Sean Olsewski and Violet Syku and AUSA Nadia Shihata

dated January 23, 2014, the day of the convening of the

Grand Jury

EXHIBIT #7 - 2 pgs. - First and Last page of Wire Tap Application dated August 6,

2013, filed by SA Sean Olsewski

EXHIBIT #8 - 2 pgs. - Pages 7 & 8 of Olsewski's wire tap application dated

August 6, 2013

EXHIBIT #9 - 4 pgs. - Deni Nikolla's FBI 302 Report of his proffer interview

with FBI SA's Syku and Olsewski, NYPD Dectective Joseph

Chimineti and AUSA's Shihata and Mace dated April 30, 2014,

detailing his actions at Jimbo's Bar

EXHIBIT #10 - 4 pgs. - George Stoupas' alleged perjured Grand Jury testimony

elicited by prosecutors on January 23, 2014

EXHIBIT #4 - 3 pgs. -

EXHIBIT #11 - 1 pg. - George Stoupas' testimony on redirect regarding showing

petitioner's picture to him on the day of Grand Jury presentment

EXHIBIT #12 - 1 pg. - George Stoupas' trial testimony during direct claiming he

replaced his phone

EXHIBIT #13 - 1 pg. - George Stoupas' trial testimony during direct identifying

the phone number related to "Denis Friend"

EXHIBIT #14 - 1 pg. - Picture of Stoupas' cell phone depicting contact info for

"Denis Friend" with phone # 347-361-0854 appearing

EXHIBIT #15 - 1 pg. - Trail transcript qualifying Darryl Valinchus as a cell phone

data analysis and location data expert

EXHIBIT #16 - 3 pgs. - Trial transcript during cross of Valinchus admitting the

phone number is Stoupas' phone listed as "Denis Friend" did

not belong to petitioner

EXHIBIT #17 - 1 pg. - Trial transcript of Tony during direct purporting petitioner

told him his name was "Redi from Dorsi"

EXHIBIT #18 - 1 pg. - Trial transcript excerpt of Tony during direct describing

Internet search for "Redi from Dorsi" but getting results

for Redinel Dervishaj

EXHIBIT #19 - 3 pgs. - Sealed application falsely purporting petitioner gave Tony

his real name to look up on the Internet

EXHIBIT #20

- 1 pg. - Warrant to seize petitioner's car

EXHIBIT #21

- 1 pg. - FBI 302 detailing the date and time of the seizure and

search of petitioner's car

- 3 pgs. - FBI log detailing items seized from petitioner’s car

- 2 pgs. - FBI addendum explaining why evidence appeared 5 months later

EXHIBIT #22

EXHIBIT #23

EXHIBIT #24 - 1 pg. - Hearing transcript excerpt of prosecutor during defense's

Limine Motion admitting cell phone pictures were Nikolla's

EXHIBIT #25 - 1 pg. - Hearing transcript excerpt of prosecutor during defense’s

Limine Motion admitting they knew the guns in the pictures

belonged to the firing range

EXHIBIT #26 - 1 pg. - Trial transcript excerpt of the district court's ruling on

the Limine Motion

EXHIBIT #27 - 1 pg. - Picture of gun resting on target taken from Nikolla's cell

phone

EXHIBIT #28 - 1 pg. - Counseled letter to prosecutors requesting 3rd Superseding

Indictment Grand Jury minutes

EXHIBIT #29 - 1 pg. - Counseled letter to prosecutors requesting how the Government

obtained phone records referenced in affidavit dated

August 6, 2013

EXHIBIT #30 - 3 pgs. - Pages 6 - 8 of Government's Sealed Application dated

July 16, 2013

EXHIBIT #31 - 1 pg. - Government's Appellate brief pg. 92

EXHIBIT #32 - 1 pg. - Paragraph #10 of Olsewski's affidavit

EXHIBIT #33 - 1 pg. - FBI 302 Report dated January 15, 2014, detailing Federal

Searching Nikolla's apartment and finding edged weapons and

a BB gun

EXHIBIT #34 - 1 pg. - Picture of seized edged weapons from Nikolla's apartment

EXHIBIT #35 - 1 pg. - FBI 302 Report detailing seizing BB gun from Nikolla's

apartment

EXHIBIT #36 - 1 pg. - Federal Agent's notes detailing Nikolla pulling a "real

looking" BB gun on his girlfriend's cousin

EXHIBIT #37 - 2 pgs. - Search warrant issued for petitioner's apartment

EXHIBIT #38 - 1 pg. -

Government letter to the district court acknowledging no

firearms or ammunition was seized from any defendant

EXHIBIT #39 - 2 pgs. - FBI 302 report for Apostolos Felonis detailing his recounting

of the narrative as told to him by Stoupas

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA,

13-CR-00668(ENV)

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-against-

United States Courthouse

Brooklyn, New York

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REDINEL DERVISHAJ

Friday, March 24, 2017

11:00 a. m.

et al .

Defendant.

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TRANSCRIPT OF CRIMINAL CAUSE FOR SENTENCING

BEFORE THE HONORABLE ERIC N. VITALIANOUNITED STATES SENIOR DISTRICT COURT JUDGE

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APPEARANCES:

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For the Government:

BRIDGET M. ROHDE, ESQ.

Acting United States Attorney

Eastern District of New York

271 Cadman Plaza East

Brooklyn, New York 11201

BY:NADIA SHIHATA, ESQ.

PATRICK HEIN, ESQ.

Assistant United States Attorney

For the Defendant:

MERCHANT LAW GROUP, LLP

535 Fifth Avenue

New York, New York 10017

BY:DANIEL DeMARIA, ESQ.

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:

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Court Reporter:

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Michele D. Lucchese, RPR

Official Court Reporter

E-maiT: MLuccheseEDNY@gmaiT.com

Proceedings recorded by computerized stenography,

produced by Computer-aided Transcription.

Transcript

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MDL

RPR

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EX. #2

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All this while

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inconsistent with their initial statements.

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time and time again I asked my lawyer to object and file

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motions, only to find, for whatever reason, my very own lawyer

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doing nothing to help me.

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miscarriage of justice here.

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I say again, there has been a gross

Frankly, I don't even know where to begin, but I

I was never

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suppose I should start with the Miranda Rights,

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given this, which is against the law. : I was given ah

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overloaded indictment based on the actions of others and

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discovery I couldn't even use an as it was mostly having to

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do, again, with the actions of others,

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should have been brought to the court and objected to

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pretrial, but my lawyer did not see fit to raise these issues

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for reasons unknown to me.

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issues, warrants for wiretaps were obtained based on

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information already obtained without a warrant, raising a

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fruit of the poison tree issue that once more went

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unchallenged by my lawyer,

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they open the closed compartments, for which they had no

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warrant and of which I have pictoral proof, but the team

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assigned to the car failed to inventory phones they say were

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taken from closed compartments of the car, only bringing them

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to light five months and 13 days later.

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These, of course,

It was the same with the other

My car was seized and not only did

They say they weren’t inventoried due to the

priority of the case, but this makes no sense.

MDL

RPR

The team

Additional material

from this filing is

available in the

Clerk's Office.