United States v. Krasniqi , 555 F. App'x 14 ( 2014 )

12-2788-cr & 12-2789-cr
United States v. Krasniqi
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
28th day of January, two thousand fourteen.
Present: Jon O. Newman
Peter W. Hall
Gerard E. Lynch
Circuit Judges,
____________________________________________________
United States of America,
Plaintiff-Appellee,
v. 12-2788-cr
12-2789-cr
Bruno Krasniqi, Saimir Krasniqi.,
Defendants-Appellants,
Erkliant Sula, et al,
Defendants.1
____________________________________________________
FOR APPELLANTS: Brendan White, Diarmuid White (on the brief), White &
White, New York, NY.
FOR APPELLEE: Ian McGinley, Assistant United States Attorney, and Brent
S. Wible (on the brief), Assistant United States Attorney,
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The Clerk of the Court is directed to amend the caption as set out above.
for Preet Bharara, United States Attorney for the Southern
District of New York, New York, NY.
_____________________________________________________
Appeal from the United States District Court for the Southern District of New York
(Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgments of the district court are AFFIRMED.
Bruno Krasniqi (“Bruno”) and Saimir Krasniqi (“Saimir”) (collectively the “Krasniqis”)
appeal from judgments of conviction on one substantive RICO count, one count of RICO
conspiracy, one count of conspiracy to possess and distribute marijuana, one count of conspiracy
to commit Hobbs Act robbery, one count of possessing and brandishing firearms during and in
furtherance of a drug offense, one count of kidnapping in aid of racketeering, one count of
possessing and brandishing firearms during and in furtherance of a kidnapping, two counts of
murder in aid of racketeering, one count of conspiracy to obstruct justice, and one count of
obstruction of justice.
The Krasniqis challenge their convictions on multiple grounds: (1) insufficiency of the
evidence showing the existence of the charged criminal enterprise; (2) insufficiency of the
evidence that the murder of Erenick Grezda was committed in aid of racketeering; (3)
insufficiency of the evidence to prove Saimir’s participation in the kidnapping of Arben
Dinkollari; (4) insufficiency of the evidence of Bruno and Saimir’s participation in an extortion
conspiracy; (5) the district court’s abuse of discretion in limiting the cross-examination of
Special Agent Callahan; and (6) the denial of Bruno’s right to counsel of his choice. We assume
the parties' familiarity with the underlying facts and history of the case, as well as the issues on
appeal.
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An appellant bears a “heavy burden” in challenging the sufficiency of the evidence.
United States v. Diaz, 176 F.3d 52, 89 (2d Cir. 1999). In evaluating such a claim, the Court must
“view[] all of the evidence in the light most favorable to the government,” United States v.
Aleskerova, 300 F.3d 286, 292 (2d Cir. 2002), and the Court will not disturb a conviction on the
basis of insufficient evidence unless no “rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Bruno, 383 F.3d 65, 82 (2d
Cir. 2004) (internal quotation marks omitted).
The Krasniqis argue that the evidence presented at trial failed to establish the existence of
an enterprise, and at most showed a series of ad hoc alliances. The indictment charged the
Krasniqis with engaging in a RICO enterprise by committing robbery, murder, arson,
kidnapping, possessing and distributing marijuana, transporting stolen property, and obstructing
justice. “The term ‘enterprise’ is defined as including any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in fact
although not a legal entity.” United States v. Turkette, 452 U.S. 576, 580 (1981) (second set of
internal quotation marks omitted; citations omitted). “[T]he existence of an association-in-fact is
oftentimes more readily proven by ‘what it does, rather than by abstract analysis of its
structure.’” United States v. Coonan, 938 F.2d 1553, 1559 (2d Cir. 1991) (emphasis in original)
(quoting United States v. Bagaric, 706 F.2d 42, 56 (2d Cir. 1983)).
It is beyond peradventure that a RICO enterprise is not required to have business-like
attributes such as a name, a hierarchical structure, a set membership, or established rules. See
Boyle v. United States, 556 U.S. 938, 948 (2009) (rejecting petitioner’s argument that a RICO
enterprise must have a hierarchy, name, and rules); United States v. Payne, 591 F.3d 46, 60 (2d
Cir. 2010) (“An [] associated in fact enterprise may continue to exist even though it undergoes
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changes in membership.” (internal quotation marks and citation omitted)). Here, the testimony
at trial established that the Krasniqi enterprise had multiple members who had a shared purpose
of selling drugs and committing various acts of violence. Indeed, members of the organization
testified that they perceived themselves to be part of a “crew” that was led by Saimir and Bruno.
On that basis alone, drawing all reasonable inferences in favor of the government, the evidence
at trial was sufficient to prove the existence of a RICO enterprise.
Next, the Krasniqis claim that the evidence was insufficient to establish that they
murdered Grezda in order to maintain or increase their position in the Krasniqi enterprise. The
language “maintaining or increasing position” in 18 U.S.C. § 1959 “should be construed
liberally.” Bruno, 383 F.3d 65 at 83 (internal quotation marks omitted). “Self-promotion need
not have been the defendant's only, or even his primary, concern, if [the violent crime] was
committed ‘as an integral aspect of membership’ in the enterprise.” United States v. Thai, 29
F.3d 785, 817 (2d Cir. 1994) (quoting United States v. Concepcion, 983 F.2d 369, 381(2d Cir.
1992)). “The motive requirement is thus satisfied if the jury could properly infer that the
defendant committed his violent crime because he knew it was expected of him by reason of his
membership in the enterprise or that he committed it in furtherance of that membership.” Id.
(internal quotation marks omitted). A murder can both be “an act of personal revenge” and still
be “tied to . . . racketeering activities.” United States v. James, 239 F.3d 120, 124 n.5 (2d Cir.
2000).
The evidence at trial established that Grezda was a member of the Krasniqi enterprise and
the Krasniqis believed that Grezda had betrayed them by facilitating Bruno’s kidnapping. The
jury was thus entitled to infer that Bruno and Saimir killed Grezda to maintain their positions as
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leaders of the enterprise and to punish Grezda for his disloyalty. Given the dual purposes of
these acts, this evidence satisfied the motive required to be proven under § 1959(a).
Saimir contends that the evidence was insufficient to prove he participated in the
kidnapping of Arben Dinkollari. The evidence at trial established that Saimir was not only
present when Dinkollari was kidnapped but participated in the kidnapping by spreading plastic
on the living room carpet and giving Oliger Merko a pillow to use as a gunshot silencer.
Viewing the evidence in the light most favorable to the government, the evidence was sufficient
to substantiate Saimir’s involvement in the kidnapping.
The Krasniqis challenge the sufficiency of the evidence that they participated in
“Racketeering Act Eleven: Extortion Conspiracy.” At trial a cooperating witness testified to the
Krasniqis’ extortion activities. The evidence was thus sufficient to support the jury’s verdict as
to this act.
The Krasniqis contend that the district court committed reversible error by precluding
them from cross-examining FBI Special Agent Joseph Callahan to elicit his opinions concerning
the leadership of the Krasniqi enterprise. “Only when th[e] broad discretion [of the district
court] is abused will we reverse [the] court’s decision to restrict cross-examination.” United
States v. Figueroa, 548 F.3d 222, 226 (2d Cir. 2008) (internal quotation marks omitted;
alterations in original). The district court properly excluded Agent Callahan’s lay opinion
regarding the structure of the criminal enterprise. See, e.g., United States v. Garcia, 413 F.3d
201, 212 (2d Cir. 2005) (“[W]hen an agent relies on the entirety or totality of information
gathered in an investigation to offer a lay opinion as to a person’s culpable role in a charged
crime, he is not presenting the jury with unique insights of an eyewitness’s personal perceptions”
(internal quotation marks omitted)). Cf. United States v. Dukagjini, 326 F.3d 45, 54 (2d Cir.
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2003) (“[When] testimony of the case agent . . . provid[es] an overall conclusion of criminal
conduct, the process tends to more closely resemble the grand jury practice, improper at trial, of
a single agent simply summarizing an investigation by others that is not part of the record.”).
Here, the district court acted well within its discretion in excluding the proposed cross-
examination of Agent Callahan.
Bruno argues that he was deprived of his right to his choice of counsel, asserting he did
not knowing and voluntarily waive his right to have Henry Scharg as his attorney. “Although a
defendant’s right to counsel of his choice is not an absolute one, we have consistently recognized
that the right of an accused who retains an attorney to be represented by that attorney is a right of
constitutional dimension.” United States v. Perez, 325 F.3d 115, 124 (2d Cir. 2003) (citation,
alterations, and quotation marks omitted). When “the court determines that the attorney suffers
from a lesser [actual] or only a potential conflict, then it may accept a defendant's knowing and
intelligent waiver of his right to conflict-free counsel and permit the defendant to be represented
by the attorney of his choice.” Id. at 125. (internal quotation marks omitted; alterations in
original); see also United States v. Cain, 671 F.3d 271, 293 (2d Cir. 2012). (“Where the right to
counsel of one’s choice conflicts with the right to an attorney of undivided loyalty, the
determination of which right is to take precedence must generally be left to the defendant, who
may make a knowing and intelligent waiver of his right to a conflict-free lawyer if he desires to
continue the representation.”).
In United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), this Court established procedures
the trial court should follow when a criminal defendant’s right to representation by an attorney
without a conflict of interest is raised as an issue. Under the Curcio procedures, “the trial court
should: (i) advise the defendant of the dangers arising from the particular conflict; (ii) determine
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through questions that are likely to be answered in narrative form whether the defendant
understands those risks and freely chooses to run them; and (iii) give the defendant time to digest
and contemplate the risks after encouraging him or her to seek advice from independent
counsel.” United States v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986) (citing Curcio, 680 F.2d at
888-90).
In this case, the district court held a Curcio hearing to determine if a potential conflict of
interest affected Scharg’s representation of Bruno. Notwithstanding the Government’s offer to
stipulate that it would not elicit testimony identifying Scharg by name, at the hearing Bruno
expressed his desire to call Scharg as a witness at trial. The district court’s colloquy with Bruno
during the Curcio hearing reflects that Bruno knowingly and intelligently waived his right to be
represented by Scharg.
We have considered the Krasniqis’ remaining arguments and find them to be without
merit. Accordingly, the order of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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