Nardino Colotti v. United States

Background

Alex Rudaj, Nikola Dedaj, Nardino Colotti, Prenka Ivezaj, and Angelo DiPietro were convicted after a fifteen-week jury trial of multiple offenses connected to the Rudaj Organization. The convictions included a racketeering charge under 18 U.S.C. § 1962(c) and a firearm charge under 18 U.S.C. § 924(c). The firearm charge alleged that the petitioners used, carried, or possessed firearms during and in relation to the racketeering offense. The jury also found that each petitioner brandished a firearm.

The petitioners sought relief under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a conviction or sentence in certain circumstances. They relied principally on Johnson v. United States and United States v. Davis. Those decisions held that a statutory “residual clause” defining some crimes of violence was unconstitutionally vague. After Davis, a § 924(c) conviction must rest on a predicate offense qualifying as a crime of violence under the statute’s “elements clause,” which covers offenses involving the use, attempted use, or threatened use of physical force against a person or property.

The petitioners’ § 924(c) convictions rested on their substantive racketeering convictions. The racketeering charge was based on multiple alleged racketeering acts, including New York extortion arising from the Soccer Fever incident and, for four petitioners, the Dimopoulos-Balampanis incident. The jury instructions described extortion as obtaining property by causing fear of physical injury or property damage. The jury also found that each petitioner brandished a firearm during at least one of the incidents.

Issues and analysis

The court addressed four principal issues: whether a substantive racketeering conviction can serve as a crime-of-violence predicate for § 924(c); whether New York’s extortion statute should be examined under the modified categorical approach; whether at least one of the extortion offenses qualified as a crime of violence; and whether one qualifying racketeering act was enough.

The court held that a substantive racketeering conviction may serve as a § 924(c) predicate when the underlying racketeering acts establish the required violence. Following Second Circuit precedent, the court looked through the racketeering offense to the predicate acts forming the charged pattern. It concluded that Davis did not require the court to depart from that approach.

The court also held that New York’s extortion statute is divisible. In this context, “divisible” means that the statute lists alternative elements defining different offenses, allowing the court to use the modified categorical approach. That approach permits examination of a limited set of documents—here, the indictment, jury instructions, and verdict—to determine which offense the jury necessarily found.

Reviewing those materials together, the court concluded that the jury necessarily found that each petitioner committed at least one extortion offense by instilling fear through the use, attempted use, or threatened use of physical force. The court relied particularly on the jury’s finding that each petitioner brandished a firearm during at least one of the extortion incidents. The court also rejected the argument that the jury might have relied only on conspiracy or another invalid theory, concluding that the brandishing finding necessarily established the substantive extortion theory needed here.

Finally, the court held that one qualifying violent racketeering act was sufficient in this case. It noted that the Second Circuit had described the issue as unresolved when a racketeering pattern includes one violent predicate and other nonviolent predicates. The court concluded that the petitioners had not shown that this uncertainty entitled them to relief. The court specifically noted that Colotti was charged with only one of the two relevant state-law extortion acts, but still found that his conviction could stand.

Disposition

The court denied the October 19, 2020 petition for relief under § 2255. It granted a certificate of appealability because the issues were ones that reasonable jurists could debate. The Clerk was directed to enter judgment and close the case. Judge Denise Cote signed the opinion and order.