United States v. Plaurent Cela, Skender Cakoni, AKA Neri , 534 F. App'x 23 ( 2013 )

12-186-cr(L)
United States of America v. Plaurent Cela, Skender Cakoni, AKA Neri
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 22nd day of August, two thousand thirteen.
5
6 PRESENT: PIERRE N. LEVAL,
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 Circuit Judges.
10
11
12 UNITED STATES OF AMERICA,
13
14 Appellee,
15
16 -v.- Nos. 12-186-cr (L)
17 12-1888-cr(Con)
18 ELTON SEJDARIS, AKA TONY, ERKLIANT
19 SULA, SHKELZEN BALIDEMAJ, GJOVALIN
20 BERISHA, AKA CUZ, DUKAJIN NIKOLLAJ,
21 AKA DUKE, NAZIH NASSER, AKA NAZ,
22 GENTIAN NIKOLLI, AKA GENTI, VISI LNU,
23 GENTIAN CARA, ALBERT TAMALI, AKA BERTI,
24 AKA DANIEL WEISS, JOANNA PAKULSKI,
25 MARJAN TAMALI, ALMIR RRAPO, AKA MIRI,
26 FLORIAN VESHI, BRUNO KRASNIQI, SAIMIR
27 KRASNIQI, AKA SAMMY,
28
29 Defendants,
30
31 PLAURENT CELA, SKENDER CAKONI, AKA NERI,
32
33 Defendants - Appellants.
34
1
2 FOR APPELLANT FRANK HANDELMAN (Tatia D. Barnes, on the
3 PLAURENT CELA: brief), Law Offices of Frank Handelman,
4 New York, NY.
5
6 FOR APPELLANT STEPHANIE M. CARVLIN, Law Office of
7 SKENDER CAKONI: Stephanie Carvlin, New York, NY.
8
9 FOR APPELLEE CHI T. STEVE KWOK, Assistant United
10 UNITED STATES States Attorney (Jennifer G. Rodgers,
11 OF AMERICA: Assistant United States Attorney, on the
12 brief), for Preet Bharara, United States
13 Attorney for the Southern District of New
14 York, New York, NY.
15
16 Appeal from the United States District Court for the
17 Southern District of New York (Holwell and Forrest, JJ.).
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgments of the district courts are
21 AFFIRMED.
22 Plaurent Cela and Skender Cakoni appeal from judgments
23 of conviction entered in the United States District Court
24 for the Southern District of New York following a jury
25 trial. Cakoni also appeals from his sentence. We assume
26 the parties’ familiarity with the underlying facts and
27 history of the case, as well as the issues on appeal.
28 Defendants challenge the admission of prior consistent
29 statements at trial. However, Defendants’ date-by-date
30 inquiries regarding when Parid Gjoka had shared information
31 with government investigators, along with language during
2
1 opening and closing statements, suggested that Gjoka
2 recently fabricated the story to which he testified. The
3 defense “was attempting to impeach [the witness],
4 specifically by suggesting that his trial testimony . . .
5 was a recent fabrication. Once [the defendant was] allowed
6 to raise that inference, the district court was well within
7 its discretion to allow a . . . statement, consistent with
8 the trial testimony, to be introduced to rebut the charge
9 that [the witness’s] trial testimony was recently
10 fabricated.” United States v. Burden, 600 F.3d 204, 230 (2d
11 Cir. 2010).
12 Defendants challenge evidence that Cakoni had lent
13 Gjoka a car to facilitate a drug trade prior to Cakoni’s
14 full-fledged involvement in the Gjoka drug distribution
15 conspiracy. This was direct evidence of the charged conduct
16 and was not inflammatory in context. See United States v.
17 Baez, 349 F.3d 90, 94 (2d Cir. 2003) (per curiam). Any
18 prejudice resulting from the tactical decision of Cakoni’s
19 counsel to admit stipulations about unrelated crimes for the
20 purpose of impeaching Gjoka is irrelevant.
21 Cakoni alleges constructive amendment and prejudicial
22 variance of his charging document; however, the jury
3
1 convicted him of the gun and conspiracy crimes with which he
2 was charged. Cf. United States v. Thomas, 274 F.3d 655, 670
3 (2d Cir. 2001) (en banc). There was ample evidence of
4 Cakoni’s use of firearms during June and July 2005; proof
5 that he also used firearms at times not included in the
6 indictment did not prejudice him. Cakoni’s argument that
7 Lonka’s death severed one conspiracy into two lacks support
8 in the record, which indicates that after the funeral,
9 “[t]he Gjoka Crew’s marijuana operations [] soon resumed,
10 albeit not to the same extent as before.” Cakoni App’x 82.
11 See United States v. Williams, 205 F.3d 23, 33 (2d Cir.
12 2000).
13 There was no prosecutorial misconduct in this case.
14 Although Cakoni points to dozens of instances of vivid,
15 violent testimony, he was on trial for his role as an
16 enforcer in a large narcotics conspiracy. Many of these
17 instances were directly relevant to his guilt. United
18 States v. Matera, 489 F.3d 115, 121 (2d Cir. 2007). The
19 fact that Gjoka’s testimony was not always consistent with
20 earlier statements does not prove that the government
21 suborned perjury. United States v. Joyner, 201 F.3d 61, 82
22 (2d Cir. 2000). Finally, although he contests the
23 government’s summation, Cakoni did not object at trial and
4
1 has not shown a “flagrant abuse.” United States v.
2 Zichettello, 208 F.3d 72, 103 (2d Cir. 2000).
3 Cakoni’s sentencing was also proper. First, Judge
4 Forrest was well within her discretion in considering, for
5 well-articulated reasons, Cakoni’s protestations of
6 innocence to be an indication of likely recidivism. The
7 district court did not punish Cakoni for failing to confess
8 to uncharged conduct, cf. United States v. Oliveras, 905
9 F.2d 623, 628 (2d Cir. 1990) (per curiam); “any suggestion
10 that it was thus improper-and an abuse of discretion-for the
11 district judge to take [Cakoni’s] protestations of innocence
12 into account in the sentencing equation is without merit.”
13 United States v. Li, 115 F.3d 125, 135 (2d Cir. 1997). The
14 district court’s consideration of Cakoni’s voluntary
15 decision to make remarks that the district court reasonably
16 interpreted as lies did not violate Cakoni’s right to remain
17 silent.
18 Second, any errors in strict compliance with the
19 procedures that 21 U.S.C. § 851(b) outlines were harmless.
20 Cakoni’s prior conviction was too old to be challenged on
21 the merits and, before notice was required, he foreclosed
22 the identity defense by admitting evidence of the dates of
23 his incarcerations. 21 U.S.C. § 851(b), (e).
5
1 We have considered all of Defendants’ arguments and
2 find them to be without merit. For the reasons stated
3 above, the judgment of the district court is AFFIRMED.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
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6