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 Do