USA v. Dervishaj et al

Eastern District of New York, nyed-1:2013-cr-00668-349628


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U.S. Department of Justice United States Attorney Eastern District of New York MKM:NS 271 Cadman Plaza East F. #2013R00786 Brooklyn, New York 11201 January 30, 2017 By Hand and ECF The Honorable Eric N. Vitaliano United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: United States v. Denis Nikolla Criminal Docket No. 13-668 (ENV) (S-3) Dear Judge Vitaliano: The government respectfully submits this letter memorandum in advance of defendant Denis Nikolla’s sentencing on February 3, 2017. For the reasons set forth below, the Court should sentence the defendant to a term of 235 months’ imprisonment, the high end of the applicable Sentencing Guidelines’ range. I. Background The Third Superseding Indictment (the "Indictment") charged the defendant with twelve counts: conspiring to extort John Does #1-#3 (Counts One, Five and Nine), attempting to extort these victims (Counts Two, Six and Ten), threatening physical violence in furtherance of plans to extort these victims and committing physical violence against John Doe #4 (Counts Three, Seven and Eleven), and using a firearm during and in relation to these crimes of violence (Counts Four, Eight and Twelve). See Docket Entry No. 144. On March 23, 2016 – one week before jury selection was set to begin in his and co-defendant Redinel Dervishaj’s trial – the defendant pleaded guilty to Counts One, Seven, Eight and Nine of the Indictment. See Plea Agreement. A. The Offense Conduct 1. John Doe #1 Count One of the Indictment, to which Nikolla pleaded guilty, charges that between April 2012 and November 2013, Nikolla and Redinel Dervishaj conspired to extort the proceeds of one or more nightclubs in Queens, New York from John Doe #1, with his consent, which consent was to be induced by wrongful use of actual and threatened force, violence and fear of physical injury, in violation of 18 U.S.C. § 1951(a). Presentence Investigation Report dated June 16, 2016 ("PSR"), ¶ 1. Specifically, Nikolla and Dervishaj conspired to extort two nightclubs owned by John Doe #1 (hereinafter, the "Corona nightclub" and the "Astoria nightclub") and used a firearm and explicit, terrifying threats of physical violence to both John Doe #1 and members of his family in their efforts to do so. Id. ¶ 7. In or about 2011, John Doe #1 hired Nikolla as a bouncer at the Corona nightclub. Id. During the course of Nikolla’s employment, Nikolla had violent interactions with patrons of the Corona nightclub. Id. On at least two separate occasions, Nikolla violently dragged different patrons out of the Corona nightclub while punching the patrons. Id. Nikolla also beat up a passerby outside the Corona nightclub who looked at Nikolla while Nikolla was smoking outside. Id. In addition, Nikolla showed John Doe #1 a loaded semiautomatic firearm that Nikolla kept in his car’s glove compartment. Trial Transcript in United States v. Redinel Dervishaj, 13 CR 668 (ENV) (S-3) (hereinafter, "Tr.") at 552-54; 1 see United States v. Vargas, 920 F.2d 167, 169 (2d Cir. 1990) (noting, with approval, that district court relied on transcript of witness testimony from co-defendant’s trial at sentencing). Eventually, John Doe #1 learned that Nikolla did not have a valid security license and fired Nikolla. PSR ¶ 7. In early 2012, around the time John Doe #1 opened the Astoria nightclub, Nikolla approached John Doe #1 with an extortion demand. He demanded $200 per week from John Doe #1 for each of John Doe #1’s two nightclubs (i.e., $400 total per week) and indicating that other businesses in the area were paying him for so-called "protection." Id. ¶ 8. John Doe #1 refused to pay Nikolla. Id. In the following months, John Doe #1 received threats from Nikolla and his associates and observed Nikolla and Dervishaj driving together. Tr. at 558-73. On or about September 20, 2012, Nikolla approached John Doe #1 at a bar in in Astoria, New York (the "Astoria Bar"), violently shook the table at which John Doe #1 was sitting and demanded that John Doe #1 go outside and speak with him, violently grabbing John Doe by the shirt. PSR ¶ 9; Tr. at 575-78. John Doe #1 then left the bar area with Nikolla and, on his way out of the Astoria Bar, Nikolla and Dervishaj trapped John Doe #1 in the corner of an enclosed foyer area, approximately four feet by four feet in size, by the entrance of the Astoria Bar. PSR ¶ 9; Tr. 578-579. In the enclosed area, Nikolla grabbed the lapel of John Doe #1’s shirt, pushed him up against the wall, reached over and retrieved a firearm from Dervishaj’s waist, stuck the firearm in John Doe #1’s ribs, and – with Dervishaj standing next to him – stated, in sum and substance, "You fucking Greek. You’re going to 1 A copy of the entire trial transcript in United States v. Redinel Dervishaj, 13 CR 668 (ENV) is enclosed herewith on a compact disc marked Exhibit A. 2 pay me the money every week or I’m going to come to your house and I’m going to beat the shit out of you in front of your family. And if you still don’t pay me, I’m going to beat the shit out of your family in front of you." PSR ¶ 9; Tr. 578-80. Dervishaj was approximately six inches away from John Doe #1, preventing him from going back inside of the main area of the Astoria Bar, while Nikolla prevented him from exiting the bar onto the sidewalk. Tr. 580. During this encounter, both Nikolla and Dervishaj exhibited an "intimidating" and "mean" demeanor and Dervishaj did not exhibit or express any surprise when Nikolla pulled the gun from his side and stuck it in John Doe #1’s ribs; indeed, Dervishaj "was on board" with Nikolla’s actions. Tr. 581. During this encounter, John Doe #1 was "scared to death" and "afraid for his life" and the "life of his family." Id. After Nikolla and Dervishaj threatened John Doe #1 in this manner, Nikolla dragged John Doe #1 out of the Astoria Bar. On the sidewalk, Dervishaj then instructed John Doe #1: "Take my number down. You have to deal with me directly when you make your payments to Denis [Nikolla]." PSR ¶ 9; Tr. 582. John Doe #1 saved Dervishaj’s number at the time – (347) 361-0854 – in his mobile phone as "Denis’ friend" because he did not know Dervishaj’s name. Tr. 582-85. Following this terrifying encounter, John Doe #1 reported the September 20, 2012 incident to the New York City Police Department ("NYPD"). PSR ¶ 10. A few weeks later, John Doe #1 saw Nikolla at a diner in Astoria. Tr. 589. Nikolla approached John Doe #1 at the diner and told him that he was "running out of time," "this is not going away," and that Nikolla was going to collect the "back money" that John Doe #1 purportedly "owe[d]" Nikolla. Id. On October 12, 2012, NYPD officers arrested Nikolla on grand larceny, extortion and menacing charges and Nikolla was subsequently released on bail. PSR ¶ 10. In March 2013, Nikolla pleaded guilty to disorderly conduct and was sentenced to a one-year conditional discharge. Id. In October 2013, John Doe #1 saw Nikolla driving his car in Astoria. Id. Nikolla rolled down his car window and made a hand gesture of a gun being fired in John Doe #1’s direction. Id. 2. John Doe #2 Count Seven of the Indictment, to which Nikolla pleaded guilty, charges that between May 2013 and November 2013, Nikolla, Dervishaj and others intentionally threatened physical violence to John Doe #2 in furtherance of a plan and purpose to extort the proceeds of a restaurant in Queens, New York from John Doe #2, with his consent, which consent was to be induced by wrongful use of actual and threatened force, violence and fear of physical injury, in violation of 18 U.S.C. § 1951(a). PSR ¶ 2. Count Eight of the Indictment, which Nikolla also pleaded guilty to, charges that Nikolla, Dervishaj and others brandished a firearm in furtherance of, inter alia, the crime charges in Count Seven. Id. ¶ 3. Specifically, Nikolla, Dervishaj and co-defendant Besnik Llakatura participated in a plan to extort John Doe #2 by demanding monthly payments from the proceeds of John Doe #2’s newly-opened seafood restaurant in Astoria (hereinafter, the "Astoria Restaurant") and intentionally threatened physical violence against John Doe #2, including by brandishing a firearm. Id. ¶ 13. 3 On May 11, 2013, Dervishaj initially approached John Doe #2 at a pizzeria John Doe #2 owned in Little Neck, Queens (the "Queens Pizzeria") with an extortion demand, stating that John Doe #2 had to pay him because John Doe #2 had opened the Astoria Restaurant in "our neighborhood." PSR ¶ 13; Tr. 105-16. Dervishaj advised John Doe #2 to look him up and ask around if John Doe #2 did not know who Dervishaj was, and indicated he would send two men to the Astoria Restaurant that evening and John Doe #2 needed "to take care of them." PSR ¶ 13; Tr. at 105-16. Following this initial extortion demand from Dervishaj, John Doe #2 was shocked and scared. Tr. 110. He called his "friend," defendant Besnik Llakatura, an active-duty NYPD officer, to seek his advice and assistance and to ask about Dervishaj. PSR ¶ 14; Tr. 116-17. Unbeknownst to John Doe #2, Llakatura was conspiring with Dervishaj to extort John Doe #2. Among other things, Llakatura was in contact with Dervishaj before John Doe #2 first received Dervishaj’s extortion demand. PSR ¶ 14. Telephone records reveal that Llakatura called Dervishaj shortly before Dervishaj visited John Doe #2 at the Queens Pizzeria and approximately 40 minutes before John Doe #2 first called Llakatura seeking his assistance. Id. Rather than advise or assist John Doe #2 to report the incident to law enforcement, Llakatura explained that John Doe #2 had opened a restaurant in "their neighborhood" and that Dervishaj had a reputation and practice of extorting establishments in Astoria. Tr. at 116-19. Later that night, Dervishaj called John Doe #2’s personal cell phone and asked John Doe #2 when he was coming to the Astoria Restaurant. Tr. 119-20. John Doe #2 said he was busy and did not know when he would make it there. Tr. 120. Dervishaj responded, "okay, I’ll see you" and hung up the phone. Id. John Doe #2 did not know how Dervishaj had his personal cell phone number and was very scared after receiving this phone call. Tr. 120-21. John Doe #2 subsequently went to the Astoria Restaurant and learned that two men had come looking for him there, which heightened his fear. Tr. 122. The next day, May 12, 2013, John Doe #2 closed the Queens Pizzeria early and drove to the Long Island Expressway service road. Tr. 122-23. Driving his white Chevy Malibu, Dervishaj pulled up right next to John Doe #2’s car in traffic on the service road, yelled at John Doe #2 from the window of his car, demanding that John Doe #2 pay him $4,000 per month and mentioned specifics about John Doe #2’s family, including where they lived, which John Doe #2 never mentioned to Dervishaj in their previous interactions, but which Llakatura knew. Tr. 123-30; PSR ¶ 15. After this encounter on the service road, John Doe #2 went to the Astoria Restaurant. Tr. 128-29. While there, John Doe #2 noticed Dervishaj in his white Chevy Malibu circling the block of the restaurant multiple times. Tr. 129. The following day, May 13, 2013, Llakatura told John Doe #2 that the Dervishaj and his associates "run Astoria" and actively dissuaded John Doe #2 from going to the police, warning him that Dervishaj and his associates would physically harm John Doe #2 if he did not pay Dervishaj. PSR ¶ 15; Tr. 129-35. Llakatura also made clear to John Doe #2 that Dervishaj and his associates knew "everything" about him, including the whereabouts of his family. Tr. 132-33. 4 After speaking with Llakatura, John Doe #2 was scared and worried not only about himself, but also about his family. Tr. 135. At this point, he followed Dervishaj’s May 13, 2013 admonition and looked Dervishaj up by searching his name on the internet. Id. From his internet search, John Doe #2 learned that Dervishaj had stabbed and killed someone on Staten Island and that Dervishaj had previously been shot while trying to collect money from another person in Queens. Tr. 135-36. Learning this information heightened John Doe #2’s fears for his safety. Id. Llakatura also conveyed this information to John Doe #2 and warned John Doe #2 that Dervishaj has ties to powerful Albanian organized crime figures, including his brother, Plaurent Dervishaj, who lived freely in Albania, despite being Albania’s Most Wanted fugitive, wanted for, among other things, multiple murders. PSR ¶ 17. On the evening of May 14, 2013, John Doe #2 was working at the Astoria Restaurant. Tr. 136. While there, he noticed Dervishaj in his white Chevy Malibu circling the restaurant multiple times for over an hour. Tr. 137. Dervishaj then parked in front of the restaurant and went inside and asked to speak with John Doe #2 outside the restaurant. Id. Outside the restaurant, Dervishaj demanded that John Doe #2 pay him the money, which John Doe #2 indicated he did not have. Tr. 137-38. Dervishaj stated "I’m gonna see you" and walked away. Tr. 137. After Dervishaj left, John Doe #2 was scared and drove to the 111th precinct in Bayside, Queens to report the extortion demands he had received to the police. Tr. 138-40. The police put John Doe #2 in touch with an FBI task force, which began an investigation into the matter. Tr. 140. On July 6, 2013, after John Doe #2 failed to make any extortion payments, Nikolla, accompanied by Dervishaj and another individual, threatened physical violence against John Doe #2 by brandishing and pointing a firearm at him on a quiet, residential side street near the Queens Pizzeria. PSR ¶ 16; Tr. 141-69; 1398-1401; GX 434; GX 435. Specifically, the three men stalked the Queens Pizzeria for hours, waiting for John Doe #2 to leave for the night. After John Doe #2 closed the pizzeria for the night, the three men followed John Doe #2’s vehicle on a public street in Nikolla’s black Dodge Charger. Tr. 152-60. As John Doe #2 attempted to evade the Dodge Charger, which at this point was driving straight at John Doe #2’s vehicle, John Doe #2’s vehicle became stuck between a street pole and the Dodge Charger. PSR ¶ 16; Tr. 160-64. Armed with a firearm, Nikolla got out of the Dodge Charger, ran towards John Doe #2’s vehicle, pointed his firearm at John Doe #2, and pulled back the slide of his gun to put a bullet in the chamber, while yelling at John Doe #2. PSR ¶ 16; Tr. 164-66. John Doe #2 managed to escape the area and drove directly to a police station to report the incident. PSR ¶ 16; Tr. at 166-69; GX 213. Shortly thereafter, Dervishaj called John Doe #2 from a pay phone and warned John Doe #2 that he had not forgotten about John Doe #2, that he knew what was going on and that John Doe #2 "got lucky this time" but he was "not going to get lucky anymore," a clear reference to John Doe #2’s having managed to escape being shot by Nikolla. PSR ¶ 16; Tr. at 171-73. In conversations with John Doe #2 in the days following the July 2013 incident, Llakatura told John Doe #2 that, if he did not make the demanded payments, Dervishaj would break John Doe #2’s legs. PSR ¶ 17; Tr. at 210-15. 5 From July through November 2013, Dervishaj, Llakatura and Nikolla demanded and received monthly payments from John Doe #2 in return for so-called "protection" – namely, an assurance that if John Doe #2 made the required payments, Dervishaj and his associates would not physically harm him or his family. PSR ¶ 20. On one such occasion in September 2013 when Nikolla went to the Queens Pizzeria in order to collect payment John Doe #2, John Doe #2 noticed that Nikolla was carrying a gun in his waistband. Tr. 290-91. The FBI provided John Doe #2 with the money to make each of the payments and conducted surveillance on each occasion. PSR ¶ 20. Dervishaj, Llakatura and Nikolla ultimately collected $24,000 in so-called "protection" money from John Doe #2 over the course of five months. PSR ¶ 20; Tr. at 226-308. 3. John Doe #3 Count Nine of the Indictment, to which Nikolla pleaded guilty, charges that between May 2013 and November 2013, Nikolla, Dervishaj and others conspired to extort the proceeds of one or more social clubs in Queens, New York from John Doe #3, with his consent, which consent was to be induced by wrongful use of actual and threatened force, violence and fear of physical injury, in violation of 18 U.S.C. § 1951(a). PSR ¶ 4. Specifically, Nikolla, Dervishaj and Llakatura conspired to extort the proceeds of two social clubs owned by John Doe #3 in Astoria where gambling occurred (hereinafter, "Social Club 1" and "Social Club 2"). PSR ¶ 22; Tr. 763-911. During the summer of 2013, Nikolla, accompanied by Dervishaj, visited John Doe #3 at Social Club 1 and demanded payments of $1,000 per week from John Doe #3 in exchange for so-called "protection." PSR ¶ 22; Tr. 818-25. John Doe #3 declined to make the demanded payments. PSR ¶ 22. In response, Nikolla insisted that John Doe #3 think about the situation and stated that he would call John Doe #3 the following day. Id. Following this encounter, John Doe #3 received repeated phone calls from Nikolla, which he avoided, and learned that Nikolla and Dervishaj were actively looking for him. Id. John Doe #3 was told by others that Nikolla and Dervishaj had stated that John Doe #3 had disrespected them and that John Doe #3 "was going to pay" and that they "would get the mother fucker." John Doe #3 ceased going to Social Club 1 because he feared for his safety. Id. Thereafter, Dervishaj, Nikolla and Llakatura discussed extorting John Doe #3 in calls intercepted pursuant to court-authorized wiretaps. PSR ¶ 23; Tr. 1175-1208, 1231-38. The defendants also repeatedly attempted to locate John Doe #3; in one instance, threatening, punching and pulling a gun on John Doe #3’s friend – John Doe #4 – outside John Doe #3’s real estate business in an effort to have John Doe #4 locate John Doe #3 for them and to send a message to John Doe #3. PSR ¶ 23; Tr. 831-45, 927-33, 974-97. During this terrifying encounter, which occurred on August 5, 2013 and in which Nikolla actively participated, Dervishaj grabbed John Doe #4 by the neck, punched John Doe #4 repeatedly in his face and head, and a gun was put to the back of John Doe #4’s neck. PSR ¶ 23; Tr. 983-87; GX 437-40. Following the assault, John Doe #4’s vision was impaired, his "head was in excruciating pain" and the entire side of his face was visibly bruised and took approximately 25 days to heal. Tr. 984, 995-96; PSR ¶ 23. After learning of this incident from John Doe #4, John Doe #3 hastily booked a ticket and fled to Cyprus for a period of time in order to 6 avoid the defendants’ extortionate threats and, after his return, sold his social clubs. PSR ¶ 24; Tr. 831-45. B. Other Criminal Conduct 1. Additional Extortion Efforts Wiretap recordings revealed that Nikolla’s efforts to extort social clubs and gambling parlors in Astoria were widespread and certainly not limited to the charged crimes. PSR ¶ 108. In various recorded calls during the fall of 2013, Nikolla and Dervishaj discussed these extortion activities, often in the very same conversations in which they also discussed John Doe #3 and the status of their extortion efforts with respect to his social clubs. For example, on an October 11, 2013 call at approximately 10:51 p.m. with an individual known as "Bobby Casino," a high-stakes gambler who also runs a prostitution business in which Nikolla participated (excerpted below), Nikolla informed Bobby of the status of various extortion targets, including how, approximately one week earlier, "we closed down" a social club opened by "Taki" in the same manner they had closed John Doe #3’s social club. In response, Bobby indicated his surprise because he was under the impression that Taki had the protection of individuals associated with Italian organized crime: Nikolla: Kostake tried to open too; you know that? Bobby: Kostaki? Nikolla: Kostaki, bro. Bobby: Oh, Taki. He’s been op--he’s been open. Nikolla: Yeah, he opened it. Bobby: He got banked, that kid, though. Nikolla: Yeah, I know. He opened it, but he opened it next to [John Doe #3]; we closed it down too. Bobby: Really, you went to Taki too, bro? Nikolla: Yeah, bro. Bobby: Yeah, but don’t Taki got juice? Nikolla: I don’t know if he got, we closed it down, bro. Bobby: Really, when was this? 7 Nikolla: It was, uh, like one week ago. Bobby: Yeah, but – you guys closed— Nikolla: You know what, you know what? As soon as [John Doe #3] opened, Taki opened it – we go and closed it, next day, [John Doe #3] open it. Bobby: Yeah, but let me ask you a question, though. I understand closing [John Doe #3]. But doesn’t Taki – isn’t he with somebody? Nikolla: Bobby, who they are, they are with nobody, brother. Bobby: I guess so. Nikolla: Even if they are, they put names, they threw names, they try to come and talk to us. Come on, Bobby. Bobby: No, I know, cause you guys are the street guys. They don’t want to get dirty. Nikolla: Listen. They all, listen, they, they, these people, Italians. They been using old names. Bobby: Correct. Nikolla: But none of this new people have balls. Trust me what I’m telling you, brother. Nikolla and Bobby resumed their discussion in another call at approximately 10:55 p.m. on October 11, 2013, during which Nikolla informed Bobby that he also wanted to extort another social club, run by an individual known as "Sava." Bobby then advised Nikolla that he could ensure the success of his extortion efforts at various social clubs by not asking for too much money. The same evening, at approximately 10:59 p.m., Nikolla spoke with Bobby again and the two discussed additional extortion targets, including "Aleko," "Taki" and "Lefteri and Kostas" and "Pasania." Notably, earlier in the day – prior to his calls with Bobby – Nikolla discussed Sava in a call with Dervishaj. Less than a month later, in a call that took place on November 8, 2013 at approximately 10:09 p.m., Nikolla informed his wife of progress in his efforts to obtain protection money from Sava’s social club, indicating that he went to Sava "for some business" and that Sava would pay him once a month. In various other calls in October and November 2013, Nikolla and Dervishaj regularly discussed the opening and operation of a new social club where "Barbut" – an 8 Albanian dice game – was played, spending time "working" at the Barbut club, and the money-making potential of that endeavor. Nikolla also discussed the opening of the Barbut social club with Bobby Casino, who himself kept Nikolla informed of when social clubs in Astoria re-opened despite Nikolla and Dervishaj’s efforts to close them down. For example, during an October 3, 2013 call at approximately 5:40 p.m., the following exchange between Nikolla and Bobby occurred: Nikolla: Yes, I know. Bobby: I thought you controlled Astoria. Nikolla: [Laughter] Hey, I know. Bobby: I thought you controlled Astoria. Don’t you take this as an insult? Nikolla: No, listen to me. Bobby: Yeah, I’m listening. Nikolla: It’s not like that. Bobby: Say that again. Nikolla: I can’t talk on the phone right now, Bobby. Bobby: Okay, no problem, but listen. They reopened over there. Nikolla: I heard it. I heard it. Bobby: Did you know about that nicely or did they just did it on their own? Nikolla: No, I heard about it nicely, nicely. Bobby: Oh, nicely you heard about it. Nikolla: But a couple of guys they not happy about it, though. Bobby: What? What else is going on? Nikolla: To be honest with you I’m not putting myself on the line. Let them deal with them. Bobby: Let them deal with it. Nikolla: No, for real. Bobby: Yeah, I know. Nikolla: For real, bro. 9 Bobby: Well, maybe they have the right backing now; you know what I mean? Nikolla: Huh? Bobby: Maybe they have the right friendship now; you know what I mean? Nikolla: Let them do whatever they want, bro. But when Barbut is gonna open, I’m going to be there. Bobby: When they open, Barbut? Nikolla: Monday, bro. Bobby: Good. Nikolla: Very nice place. Later that night, at approximately 9:04 p.m., Dervishaj chastised Nikolla for not "taking care of [his] business" and closing the social club that had re-opened, despite their prior efforts to shut down the club to make the owners "listen." Nikolla suggested having someone else go to the club to "break everything inside," to which Dervishaj replied that he would "break it myself and do it myself. It is not a problem." 2. Prostitution Following his arrest, Nikolla told law enforcement agents that he participated in Bobby Casino’s prostitution business. Nikolla stated, in sum and substance, that Bobby owned an escort business and that he worked with Bobby and would sometimes "drive girls around" for Bobby. Intercepted wiretap calls also confirmed Nikolla’s participation in a prostitution scheme. 3. Document Fraud In November 2013, Nikolla sought to obtain false official documents, including an altered passport and fraudulent identification card, to enable his wife – who did not have legal status in the United States – to travel to California with him. PSR ¶ 108. Nikolla’s efforts in this regard were documented in several calls intercepted pursuant to a court-authorized wiretap on his cell phone, including calls with his wife discussing the status of his efforts and calls with individuals he enlisted to create the fraudulent identification documents. For example, on November 7, 2013, at approximately 4:30 p.m., Nikolla spoke with "Mikey, Tino’s boy," who informed Nikolla that he could provide a high-quality Pennsylvania license with a "beautiful hologram." "Mikey" then handed the telephone to an unidentified male, whom Nikolla asked if the license "would pass the computer," because "I want it for the airport." The unidentified male assured Nikolla that "they are going to put the information in the back"; "they put the information in the magnetic stuff." After further 10 discussion, the unidentified male told Nikolla, "we can make a passport if you want. We can make a passport that goes through with no problem." The two then agreed that the individual would contact Nikolla once he obtained "a [passport] book," which he could alter to make into a fraudulent document. Shortly thereafter, at approximately 4:52 p.m., Dervishaj inquired about the status of Nikolla’s efforts to obtain the fraudulent documents. Nikolla responded that he had only managed to obtain "the ID" but that evening he would "take the... two other ones." The same day, at approximately 11:22 p.m., Nikolla informed his wife that he had successfully obtained a fraudulent identification card and green card for her use, but that the green card had an obvious mistake on it. Nikolla indicated that the identification card, however, looked "unbelievably real." A few hours earlier that evening, at approximately 7:37 p.m., law enforcement observed Nikolla meeting with Llakatura on a street corner in Astoria, New York as they appeared to hold up an identification card to the light and have a discussion. The next day, November 8, 2013, at approximately 4:22 p.m., Nikolla informed Dervishaj that he met "Cico" last night in Astoria – a reference to Llakatura. Nikolla subsequently travelled with his wife to California on or about November 10, 2013 and returned to New York on or about November 23, 2013. 4. Violence and Possession of Firearms As described above, prior to his attempts to extort John Doe #1, Nikolla worked for John Doe #1 as a bouncer at the Corona nightclub. While Nikolla was employed at the Corona nightclub, John Doe #1 witnessed (a) Nikolla violently beat up three different individuals and (b) Nikolla in possession of firearms on two different occasions, which events ultimately contributed to John Doe #1’s decision to fire Nikolla. On at least two separate occasions, John Doe #1 witnessed Nikolla violently drag different patrons out of the Corona nightclub while assaulting them for no apparent reason. PSR ¶ 7. John Doe #1 also saw Nikolla trip and beat up a passerby outside the Corona nightclub who had dared to look at Nikolla while Nikolla was smoking outside the club. Id. In addition, John Doe #1 saw Nikolla with firearms on two separate occasions. On one occasion, when Nikolla and John Doe #1 were in front of the Corona nightclub, Nikolla showed John Doe #1 a loaded semiautomatic pistol he kept in the glove box of his black Dodge Charger. Tr. 552-54. During this encounter, Nikolla released the magazine of the gun, took out the ammunition clip, and told John Doe #1 it was a nine-millimeter firearm. Tr. 553. In 2012, after John Doe #1 opened the Astoria nightclub, an employee of the Astoria nightclub (hereinafter, "Witness #1") saw Nikolla at "Filarakia," a Greek nightclub in Astoria. Tr. 709. At the time, Nikolla worked as a bouncer at Filarakia and Nikolla violently kicked Witness #1’s friend out of Filarakia and stuck a lit cigarette into the friend’s ear. Tr. 709-711. Afterwards, Nikolla told Witness #1, in sum and substance, that he had previously spent time in jail and had no fear of going back. Tr. 710. According to Witness #1, Nikolla was known to carry a firearm and had a reputation in Astoria as someone who would beat people up for money. Tr. 715. 11 In addition, as reflected in the PSR, Nikolla has prior arrests for burglary and battery in Florida. PSR ¶¶ 110-111. An incident in 2007 involved Nikolla reaching inside the window of the victim’s car with both arms and hitting the victim’s face and head repeatedly. Id. ¶ 110. It appears the victim only managed to stop Nikolla’s assault by cutting Nikolla’s arm with a box cutter that he used for work. The victim’s information was verified by a witness. Id. In 2011, Nikolla was arrested after his ex-wife reported that he "slapped her and pinned her down on their bed" and a day later "pushed her during an argument." Id. ¶ 111. Nikolla admitted to police that he slapped his ex-wife as he held her down and the charges were apparently dismissed after completion of a nine-month diversion program. Id. His ex-wife also obtained an order of protection, indicating that Nikolla threatened to kill her, her sister, and her cousin. Id. 5. Obstruction of Justice As set forth in detail in the PSR, following his arrest and incarceration for the instant offenses, Nikolla obstructed justice through his attempts to have John Doe #1 recant the charges he had made against Nikolla or "somehow lower them." PSR ¶ 11. Nikolla was able to undertake these efforts despite his incarceration by enlisting the assistance of others, including his own parents. Id. Those efforts resulted in John Doe #1 being approached by an unknown man in Astoria who attempted to bribe John Doe #1 to alter his testimony against Nikolla. Id. In addition, with respect to the charges related to John Doe #2, Nikolla personally addressed the Court on numerous occasions and, while doing so, provided materially false information to the Court. Id. ¶ 53. Specifically, he told the Court that he never possessed or brandished a firearm in relation to John Doe #2 and made these statements in the specific context of seeking certain relief from the Court, including the appointment of new counsel. On March 16, 2016, he personally reiterated this false information to the Court in an effort to have his counsel removed, get new counsel and adjourn the trial date. Id. II. The Sentencing Guidelines For the reasons set forth in its letter objecting to the PSR dated January 17, 2017, the government respectfully submits that Nikolla’s total offense level, as set forth in the plea agreement and stipulated to by Nikolla in that agreement, is 32. 2 See Plea 2 In its January 30, 2017 Addendum to the PSR, the Probation Department agrees with the government that a two-level enhancement for restraint of John Doe #1 should apply. See Addendum to the PSR dated January 30, 2017 at 1-3. While the Probation Department does not agree that an enhancement for ability to carry out a threat with respect to John Doe #2 applies, see id. at 1-2, inclusion of the enhancement for restraint of John Doe #1 ultimately results in the same Guidelines range as set forth in the plea agreement due to the grouping analysis. As a result, both the government and Probation agree that the adjusted 12 Agreement ¶ 2. Because his criminal history category is I, this results in a Guidelines range of 121 to 151 months. Id. However, Nikolla also faces a mandatory consecutive sentence of seven years on Count Eight, resulting in an effective Guidelines range of 205 to 235 months. Id. Notably, the Plea Agreement allows the government to seek a sentence of 235 months (the high end of the effective Guidelines range set forth in the Plea Agreement) regardless of the Guidelines range ultimately determined by the Court. Id. ¶ 5(b). The government seeks a sentence of 235 months for Nikolla. III. Discussion It is settled law that a sentencing court should "consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, [it] may not presume that the Guidelines range is reasonable. [It] must make an individualized assessment based on the facts presented." Gall v. United States, 552 U.S. 38, 49-50 (2007) (citation and footnote omitted). Title 18, United States Code, Section 3553(a) provides, in part, that in imposing sentence, the Court shall consider: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; [and] (2) the need for the sentence imposed--(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; [and] (C) to protect the public from further crimes of the defendant. The nature and circumstances of the instant offenses, see 18 U.S.C. § 3553(a)(1), are extremely serious. The offenses involved threats of violence, actual violence, firearms, and a callous disregard for the very real effects that these crimes had on victims. The defendant and his co-conspirators were motivated by greed and targeted hard-working immigrants determined to make a better life for themselves in this country. They terrified their victims and others around them. The effects of their actions on their victims remain to this day. For example, John Doe #2 was forced to sell his businesses and uproot his entire life to an undisclosed location. He built those businesses from the ground up – working seven days a week – and employing others. He literally was living the American dream and in the span of just a few months, the defendant and his co-conspirators deliberately and cruelly turned that dream into a nightmare. John Doe #3 was so terrified by the threats of the defendant and his co-conspirators – including brutally beating up his friend John Doe #4 – that he fled to another country for a period of time. Among other things, John Doe #1 offense level is 32. While it does not alter the ultimate Guidelines calculation with respect to Nikolla, the government continues to maintain that an enhancement for ability to carry out a threat applies with respect to John Doe #2. 13 suffered the indignity of having Nikolla press a firearm against his ribs while trapped in an enclosed space and hearing Nikolla threaten not only himself, but his wife and two daughters. These extortions did not use mainly simple intimidation and damage to property. The defendants preyed on victims they believed would never go to the police and made sure their victims knew the dire consequences of doing so. Nor were Nikolla’s actions in any sense aberrational. As set forth above, the instant offenses were part of a pattern of criminal activity engaged in by Nikolla. Whatever positive contributions to society he may have made, see Defense Sentencing Memo at 2-3, these pale in comparison to the acts he committed, the life he chose to lead, and the persona he exhibited to his victims and others in the Astoria community – that of a "tough guy" to be feared. Moreover, it is simply wrong to assert that Nikolla’s acceptance of responsibility has been "extraordinary." Id. at 4-5. Indeed, Nikolla repeatedly obstructed justice. As described above, he attempted to bribe John Doe #1 to alter his testimony. He also repeatedly lied to the government and this Court, including just days before entering his guilty plea. That is not acceptance of responsibility, extraordinary or otherwise. Given Nikolla’s serious criminal conduct, history and characteristics, a sentence of 235 months’ imprisonment is necessary to reflect the seriousness of his offenses, to promote respect for the law, provide just punishment, afford adequate deterrence, both specific to Nikolla and generally, and to protect the public. Nikolla has proven himself to be a real danger to the community, willing to use firearms and threaten others without a second thought. And he did so, while in his mid-30s. These were not the actions of misguided youth. They were deliberate choices that Nikolla made – choices that warrant a sentence of 235 months’ imprisonment. III. Conclusion For the foregoing reasons, the Court should sentence defendant Denis Nikolla to 235 months’ imprisonment. Respectfully submitted, ROBERT L. CAPERS United States Attorney By:/s/Nadia I. Shihata Patrick Hein Assistant U.S. Attorneys (718) 254-6295/6284 cc: Clerk of Court (ENV) (by ECF) (without enclosure) Royce Russell (by ECF, E-mail and FedEx) U.S. Probation Officer Michelle Espinoza (by E-mail) (without enclosure) 14