United States v. Colotti ( 2023 )

21-932 (L)
U.S. v. Colotti
In the
United States Court of Appeals
For the Second Circuit
August Term 2021
No. 21-932(L), 21-937(CON), 21-950(CON), 21-992(CON), 21-1548(CON)
-
NARDINO COLOTTI, ALEX RUDAJ, PRENKA IVEZAJ, NIKOLA DEDAJ,
ANGELO DIPIETRO,
Petitioners-Appellants,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of New York
No. 04 Cr. 110 (DLC), 11 Civ. 1782 (DLC), 11 Civ. 1510 (DLC), 11 Civ. 1402 (DLC),
11 Civ. 1556 (DLC), 20 Civ. 4889 (DLC)
Denise L. Cote, District Judge, Presiding.
(Argued June 2, 2022; Decided June 21, 2023)
1
21-932 (L)
U.S. v. Colotti
Before: LEVAL, PARKER, and MENASHI, Circuit Judges.
Petitioners-Appellants appeal from a judgment of the United States
District Court for the Southern District of New York (Cote, J.) denying their
petitions brought pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct
their convictions under 18 U.S.C. § 924(c). The district court held that their
substantive RICO convictions, on which their § 924(c) convictions were
based, were valid “crimes of violence.” Because we are confident that a
properly instructed jury would have based the petitioners’ § 924(c)
convictions upon a valid predicate crime of violence, we AFFIRM.
EDWARD S. ZAS, (David E. Patton, on the brief),
Federal Defenders of New York, Inc., New York,
N.Y. for Petitioners-Appellants Nardino Colotti, Alex
Rudaj, and Nikola Dedaj,
Michael S. Schacter and Ravi Chaderraj, Willkie
Farr & Gallagher LLP, New York, N.Y. for
Petitioner-Appellant Prenka Ivezaj,
Anthony DiPietro, Law Offices of Anthony
DiPietro P.C., White Plains, N.Y. for Petitioner-
Appellant Angelo DiPietro,
ANDREW JONES (Karl Metzner, on the brief), for
Damian Williams, United States Attorney for the
Southern District of New York, New York, N.Y.
for Respondent-Appellee.
2
21-932 (L)
U.S. v. Colotti
BARRINGTON D. PARKER, Circuit Judge:
Nardino Colotti, Alex Rudaj, Nikola Dedaj, Prenka Ivezaj, and Angelo
DiPietro filed successive habeas corpus petitions challenging their convictions and
mandatory sentences imposed by the United States District Court for the Southern
District of New York (Cote, J.). This appeal focuses on their convictions under
Count Thirteen of the indictment, which charged them with using and carrying
firearms during and in relation to a crime of violence, 18 U.S.C. § 924(c), based on
an offense charged in Count One, racketeering activity in violation of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c). The
predicate acts underlying the RICO charge included two offenses (Racketeering
Acts Four and Five) consisting of either second degree grand larceny by extortion
under New York law, or conspiracy or attempt to commit that offense. The jury
expressly found Racketeering Acts Four and Five to have been proven as to all
defendants charged. Although there were other predicates to the RICO offense
charged in Count One, these are the only predicates which the government
contends can constitute a “crime of violence” within the meaning of § 924(c)(3)(A).
In January 2006 a jury convicted defendants on all but one of the fifteen
counts charged in the indictment. We affirmed the convictions on direct appeal.
3
21-932 (L)
U.S. v. Colotti
United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009); United States v. Ivezaj, 336 F. App’x
6 (2d Cir. 2009). We upheld the petitioners’ § 924(c) convictions under Count
Thirteen, finding that its predicates conformed to the definition of a crime of
violence. Ivezaj, 568 F.3d at 96. Because intervening decisions of the Supreme Court
have altered the test for determining whether an offense is a “crime of violence,”
see United States v. Taylor, 142 S. Ct. 2015, 2021 (2022); United States v. Davis, 139 S.
Ct. 2319, 2336 (2019), that ruling is no longer binding on us. The issue requires a
new analysis to ensure that the convictions can stand under the newly explained
requirements.
In 2011, defendants petitioned pursuant to 28 U.S.C. § 2255 to vacate their
convictions on the ground of ineffective assistance of counsel. Judge Cote denied
the petitions and declined to issue Certificates of Appealability. In 2016, following
the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015), the
petitioners asked this Court for permission to file this successive petition in district
court to vacate their Count Thirteen convictions for violation of 18 U.S.C. § 924(c)
on the ground that substantive RICO did not qualify as a crime of violence. We
allowed the filing of the successive petition. Judge Cote then denied relief,
concluding that the petitioners’ substantive RICO and New York extortion
4
21-932 (L)
U.S. v. Colotti
offenses qualified as crimes of violence and that any instructional errors were
harmless, but granted Certificates of Appealability. The petitioners then filed this
appeal.
The jury was instructed that it could base the petitioners’ § 924(c)
convictions upon a predicate offense, which, according to the Supreme Court’s
subsequent interpretations of the term, was not a “crime of violence.” The jury’s
findings rendered under those (later determined to be erroneous) instructions do
not specify whether it found that the defendants committed a variation of New
York larceny by extortion that necessarily requires the actual or threatened use of
force. Nor did the written jury findings specify whether the predicate offense
related to second degree grand larceny by extortion was the substantive offense,
or conspiracy or attempt to commit the offense. Nonetheless, reviewing the jury’s
verdict in relation to the evidence presented at trial, we conclude with a high
degree of confidence that, if properly instructed, the jury would have predicated
the petitioners’ § 924(c) convictions on a valid crime of violence. We therefore
affirm the district court’s denial of relief.
5
21-932 (L)
U.S. v. Colotti
BACKGROUND
In the trial in late 2005 and early 2006, the jury convicted defendants of
fourteen out of fifteen counts of crimes arising from their participation in a
criminal enterprise known as the Rudaj Organization, an organized crime
syndicate that, among other things, controlled illegal gambling operations in the
New York City area.
The issues raised on appeal center on Count One, which charged defendants
with racketeering in violation of RICO (18 U.S.C. § 1962(c)), and Count Thirteen,
which charged defendants, under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2, with
possessing, using, or carrying a firearm in relation to a federal “crime of violence,”
namely, the racketeering charge in Count One.
Count One alleged fourteen separate racketeering acts. This appeal concerns
Acts Four and Five. Act Four charged defendants (except Colotti) with three
related offenses: substantive second degree grand larceny by extortion under N.Y.
Penal Law §§ 155.05 & 155.40; attempted second degree grand larceny by extortion
under N.Y. Penal Law §§ 110.00, 155.05, & 155.40; and conspiracy to commit
second degree grand larceny by extortion under N.Y. Penal Law §§ 105.13, 155.05,
& 155.40. The indictment specified that any one of these offenses “alone constitutes
6
21-932 (L)
U.S. v. Colotti
the commission of Racketeering Act Four.” Act Four, according to the indictment,
was based on conduct “instilling [in two victims] a fear that the defendants would
damage property and cause physical injury to some person in the future” and
“wrongfully tak[ing] and obtain[ing], and attempt[ing] to take and obtain, the
property of” those victims.
Act Five similarly charged all defendants with the same three New York
criminal offenses as in Act Four and similarly alleged that any one of these offenses
“alone constitutes the commission of Racketeering Act Five.” It asserted as a basis
conduct “instilling a fear [in the managers of an illegal gambling club called Soccer
Fever] that the defendants would damage property and cause physical injury to
some person in the future.”
As noted, defendants’ convictions were all affirmed on direct appeal and
defendants’ initial § 2255 petitions alleging ineffective assistance of counsel were
also denied. Further, after Johnson struck down 18 U.S.C. § 924(e)(2)(B)(ii), the
residual clause of the Armed Career Criminal Act (“ACCA”) as void for
vagueness, Johnson v. United States, 576 U.S. 591, 597 (2015), and Davis applied
Johnson to 18 U.S.C. § 924(c)(3)(B)’s residual clause, United States v. Davis, 139 S. Ct.
2319, 2336 (2019), defendants obtained our permission to file successive § 2255
7
21-932 (L)
U.S. v. Colotti
petitions challenging the validity of their convictions under Counts One and
Thirteen as well as the corresponding jury instructions on those charges. The
district court denied the petitions but granted Certificates of Appealability.
This appeal followed. We review legal determinations de novo. Nunez v.
United States, 954 F.3d 465, 469 (2d Cir. 2020) (citing Sapia v. United States, 433 F.3d
212, 216 (2d Cir. 2005)).
DISCUSSION
I
Under 18 U.S.C. § 924(c)(1)(A), criminal defendants are subject to
mandatory, consecutive, enhanced punishment for “us[ing] or carr[ying] a
firearm” “during and in relation to any crime of violence.” The enhanced
punishment mandates a sentence of at least five years in custody, increased to
seven years if the firearm is brandished. Id. §§ 924(c)(1)(A)(i), (c)(1)(A)(ii). For
purposes of these enhancements, the statute defines “crime of violence” in two
subparts—the first known as the elements clause, § 924(c)(3)(A), and the second
the residual clause, § 924(c)(3)(B). According to those clauses, a crime of violence
is a felony offense that:
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
8
21-932 (L)
U.S. v. Colotti
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.
Id. § 924(c)(3). Following the Supreme Court’s decision in Davis, which struck
down Subparagraph B, the residual clause, as unconstitutionally vague, only the
elements clause, Subparagraph A, remains valid. 139 S. Ct. at 2323–24.
We ordinarily apply the categorical approach in determining whether a
predicate offense qualifies as a crime of violence under the elements clause. United
States v. Taylor, 142 S. Ct. 2015, 2020 (2022). Under this approach, we ask whether
“categorically, that is to say, in every instance by its very definition, [the offense]
involves the use of force.” United States v. Martinez, 991 F.3d 347, 353 (2d Cir. 2021).
There is, however, an exception for divisible statutes. When a crime is
defined with alternative elements that are divisible, we apply a modified
categorical approach by consulting a limited set of documents – including the
indictment, verdict form, and jury instructions – to determine which of the
alternative branches of the statute’s prohibitions was the basis of the defendant’s
conviction, then assessing whether the elements of that branch of the offense can
be satisfied by conduct that would fall outside the definition of a “crime of
violence” provided by § 924(c)(3)(A). See Descamps v. United States, 570 U.S. 254,
9
21-932 (L)
U.S. v. Colotti
257 (2013); United States v. Laurent, 33 F.4th 63, 85 (2d Cir.), cert. denied, 143 S. Ct.
394, and cert. denied sub nom. Ashburn v. United States, 143 S. Ct. 462 (2022). With
this background in mind, we address whether the petitioners’ substantive RICO
convictions and related predicate acts of New York larceny by extortion qualify as
crimes of violence under § 924.
II
The § 924(c) offense under which the petitioners were convicted was Count
Thirteen. It charged that the defendants used or carried a firearm during and in
relation to a crime of violence. The crime of violence charged as the basis for the
§ 924(c) conviction was the RICO offense charged in Count One, a violation of 18
U.S.C. § 1962(c), predicated on Racketeering Acts 4 and 5, which in turn charged
violations of N.Y. Penal Law § 155.40, the New York penal statute defining second
degree grand larceny by extortion, or alternatively conspiracy or attempt to violate
that statute. Because both RICO and New York larceny by extortion can be
committed in various ways, some of which require force while others do not, the
government cannot sustain the conviction under § 924(c) unless both the RICO
offense under § 1962(c) and the New York extortion statute are divisible.
Petitioners argue that both statutes are indivisible and contend that we must
10
21-932 (L)
U.S. v. Colotti
conclude under the categorical approach that Count Thirteen does not charge a
crime of violence.
The Supreme Court has clarified the applicability of the modified
categorical approach in several decisions. Notably, in Descamps v. United States, 570
U.S. 254, 261–63 (2013), the Supreme Court explained that courts must apply the
modified categorical approach when the defendant is convicted under a divisible
statute. Sentencing courts must begin by analyzing the divisibility of a statute to
determine whether to apply the modified categorical approach.
We find that these clarifications do not affect our ultimate determination
that a substantive RICO offense is a crime of violence if the RICO conviction is
based on an offense that itself constitutes a crime of violence. Cf. United States v.
Brown, 945 F.3d 72, 76 (2d Cir. 2019) (finding “no persuasive reason to deviate”
from Ivezaj after Davis in the context of calculating a sentence for a RICO
conspiracy conviction). Though we did not conduct a divisibility analysis in Ivezaj,
we did in effect apply the modified categorical approach in finding that the offense
in question was a crime of violence. With respect to whether a RICO offense can
serve as a crime of violence under § 924(c), we reaffirm for the reasons below that
RICO is a divisible statute and that substantive RICO can be a crime of violence
11
21-932 (L)
U.S. v. Colotti
when it is predicated on an offense that necessarily requires an actual, attempted,
or threatened use of force. See Laurent, 33 F.4th at 88.
The text of § 1962(c) prohibits “any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate or foreign
commerce” from “conduct[ing] or participat[ing], directly or indirectly, in the
conduct of such enterprise’s affairs through a pattern of racketeering activity or
collection of unlawful debt.” The statute defines racketeering activity by listing a
series of state or federal crimes, also known as predicate acts, some of which, like
murder, involve force and some of which, like counterfeiting, do not. 18 U.S.C. §
1961(1). 1
1 18 U.S.C. § 1961(1) provides:
(1) “racketeering activity” means (A) any act or threat involving murder,
kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene
matter, or dealing in a controlled substance or listed chemical (as defined in section
102 of the Controlled Substances Act), which is chargeable under State law and
punishable by imprisonment for more than one year; (B) any act which is
indictable under any of the following provisions of title 18, United States Code:
Section 201 (relating to bribery), section 224 (relating to sports bribery), sections
471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from
interstate shipment) if the act indictable under section 659 is felonious, section 664
(relating to embezzlement from pension and welfare funds), sections 891–894
(relating to extortionate credit transactions), section 1028 (relating to fraud and
related activity in connection with identification documents), section 1029
(relating to fraud and related activity in connection with access devices), section
1084 (relating to the transmission of gambling information), section 1341 (relating
to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to
12
21-932 (L)
U.S. v. Colotti
financial institution fraud), section 1425 (relating to the procurement of citizenship
or nationalization unlawfully), section 1426 (relating to the reproduction of
naturalization or citizenship papers), section 1427 (relating to the sale of
naturalization or citizenship papers), sections 1461–1465 (relating to obscene
matter), section 1503 (relating to obstruction of justice), section 1510 (relating to
obstruction of criminal investigations), section 1511 (relating to the obstruction of
State or local law enforcement), section 1512 (relating to tampering with a witness,
victim, or an informant), section 1513 (relating to retaliating against a witness,
victim, or an informant), section 1542 (relating to false statement in application
and use of passport), section 1543 (relating to forgery or false use of passport),
section 1544 (relating to misuse of passport), section 1546 (relating to fraud and
misuse of visas, permits, and other documents), sections 1581–1592 (relating to
peonage, slavery, and trafficking in persons), section 1951 (relating to interference
with commerce, robbery, or extortion), section 1952 (relating to racketeering),
section 1953 (relating to interstate transportation of wagering paraphernalia),
section 1954 (relating to unlawful welfare fund payments), section 1955 (relating
to the prohibition of illegal gambling businesses), section 1956 (relating to the
laundering of monetary instruments), section 1957 (relating to engaging in
monetary transactions in property derived from specified unlawful activity),
section 1958 (relating to use of interstate commerce facilities in the commission of
murder-for-hire), section 1960 (relating to illegal money transmitters), sections
2251, 2251A, 2252, and 2260 (relating to sexual exploitation of children), sections
2312 and 2313 (relating to interstate transportation of stolen motor vehicles),
sections 2314 and 2315 (relating to interstate transportation of stolen property),
section 2318 (relating to trafficking in counterfeit labels for phonorecords,
computer programs or computer program documentation or packaging and
copies of motion pictures or other audiovisual works), section 2319 (relating to
criminal infringement of a copyright), section 2319A (relating to unauthorized
fixation of and trafficking in sound recordings and music videos of live musical
performances), section 2320 (relating to trafficking in goods or services bearing
counterfeit marks), section 2321 (relating to trafficking in certain motor vehicles or
motor vehicle parts), sections 2341–2346 (relating to trafficking in contraband
cigarettes), sections 2421–24 (relating to white slave traffic), sections 175–178
(relating to biological weapons), sections 229–229F (relating to chemical weapons),
section 831 (relating to nuclear materials), (C) any act which is indictable under
title 29, United States Code, section 186 (dealing with restrictions on payments and
loans to labor organizations) or section 501(c) (relating to embezzlement from
union funds), (D) any offense involving fraud connected with a case under title 11
13
21-932 (L)
U.S. v. Colotti
Defendants contend this broad language indicates that the statute
criminalizes a single offense, and that § 1961 merely presents possible means of
engaging in racketeering activity but does not list alternative elements, which
would mean the statute was unitary and the categorical approach would apply.
The divisibility of RICO, however, is no longer an open question in this
circuit. We held in United States v. Laurent that RICO is a divisible statute
appropriate for use of the modified categorical approach. 33 F.4th at 88; cf. also
Martinez, 991 F.3d at 359. A conviction for a substantive RICO offense will
constitute a crime of violence if the conviction was based on at least one predicate
act that can be committed only by use of force. Laurent, 33 F.4th at 88. The modified
categorical approach requires us to turn to the charged predicate acts that
constitute the pattern of racketeering – here, New York larceny by extortion – to
(except a case under section 157 of this title), fraud in the sale of securities, or the
felonious manufacture, importation, receiving, concealment, buying, selling, or
otherwise dealing in a controlled substance or listed chemical (as defined in
section 102 of the Controlled Substances Act), punishable under any law of the
United States, (E) any act which is indictable under the Currency and Foreign
Transactions Reporting Act, (F) any act which is indictable under the Immigration
and Nationality Act, section 274 (relating to bringing in and harboring certain
aliens), section 277 (relating to aiding or assisting certain aliens to enter the United
States), or section 278 (relating to importation of alien for immoral purpose) if the
act indictable under such section of such Act was committed for the purpose of
financial gain, or (G) any act that is indictable under any provision listed in section
2332b(g)(5)(B).
14
21-932 (L)
U.S. v. Colotti
determine whether that statute is divisible and, if so, whether any of the predicate
offenses a defendant was found to have committed qualifies as a crime of violence.
III
The petitioners’ § 924(c) convictions cannot be sustained unless the New
York larceny by extortion statute is divisible. The parties dispute whether the
statute is divisible. We conclude that it is. We further conclude that at least one of
the offenses set forth in the statute constitutes a crime of violence.
A
We begin by laying out the structure of the New York laws defining larceny
by extortion. The statutes setting forth the crime of larceny by extortion under New
York law set forth alternative offenses, each of which is a form of larceny by
extortion, some of which necessarily require the use of force, and some of which
do not. Subdivision 1 of N.Y. Penal Law § 155.05 provides that “a person steals
property and commits larceny when, with intent to deprive another of property or
to appropriate the same to himself or to a third person, he wrongfully takes,
obtains or withholds such property from an owner thereof.” Subdivision 2 then
defines larceny to include “a wrongful taking, obtaining or withholding of
another’s property, with the intent prescribed in subdivision one of this section,
15
21-932 (L)
U.S. v. Colotti
committed in any of the following ways.” Section 155.05(2)(e) defines obtaining
property by extortion as follows:
A person obtains property by extortion when he compels or induces another
person to deliver property to himself or to a third person by means of
instilling a fear that, if the property is not so delivered, the actor or another
will:
(i) Cause physical injury to some person in the future; or
(ii) Cause damage to property; or
(iii) Engage in other conduct constituting a crime; or
(iv) Accuse some person of a crime or cause criminal charges to be
instituted against him; or
(v) Expose a secret or publicize an asserted fact, whether true or false,
tending to subject some person to hatred, contempt or ridicule; or
(vi) Cause a strike, boycott or other collective labor group action injurious
to some person’s business; except that such a threat shall not be deemed
extortion when the property is demanded or received for the benefit of the
group in whose interest the actor purports to act; or
(vii) Testify or provide information or withhold testimony or information
with respect to another’s legal claim or defense; or
(viii) Use or abuse his position as a public servant by performing some act
within or related to his official duties, or by failing or refusing to perform an
official duty, in such manner as to affect some person adversely; or
(ix) Perform any other act which would not in itself materially benefit the
actor but which is calculated to harm another person materially with respect
to his health, safety, business, calling, career, financial condition, reputation
or personal relationships.
N.Y. Penal Law § 155.05(2)(e). Section 155.40 then references several of the acts
from the list in § 155.05(2)(e) to define second degree grand larceny by extortion:
A person is guilty of grand larceny in the second degree when he steals
property and when: . . . .
16
21-932 (L)
U.S. v. Colotti
2. The property, regardless of its nature and value, is obtained by extortion
committed by instilling in the victim a fear that the actor or another person
will (a) cause physical injury to some person in the future, or (b) cause
damage to property, or (c) use or abuse his position as a public servant by
engaging in conduct within or related to his official duties, or by failing or
refusing to perform an official duty, in such manner as to affect some person
adversely.
N.Y. Penal Law § 155.40. Clause (b) of § 155.40(2), covering threats to “cause
damage to property,” has been construed by the New York courts to include not
only threats of physical damage to property, but also threats of economic harm,
such as labor stoppages, so that this branch of § 155.40(2) can be violated without
threat or use of force. See People v. Dioguardi, 168 N.E.2d 683, 688 (N.Y. 1960) (“It is
well-settled law in this State that fear of economic loss or harm satisfies the
ingredient of fear necessary to the crime.”); People v. Capparelli, 603 N.Y.S.2d 99,
102, 105 (N.Y. Sup. Ct. 1993) (noting, where defendant made threat of labor
“problems” to general contractor victim, that “[f]ear of future economic harm is
sufficient to establish” extortionate larceny). The other forms of larceny by
extortion set forth in § 155.05(2)(e) are defined as grand larceny in the fourth
degree. N.Y. Penal Law § 155.30(6).
An aspect of grand larceny by extortion that is significant in this appeal is
that the completed offense requires a jury finding that the defendant succeeded in
17
21-932 (L)
U.S. v. Colotti
obtaining the property of another. Dioguardi, 168 N.E.2d at 68 ("The essence of the
crime [of extortion] is obtaining property by a wrongful use of fear, induced by a
threat to do an unlawful injury.”); cf. People v. Jennings, 504 N.E.2d 1079, 1086 (N.Y.
1986). Defendants who plan to or endeavor to obtain the property of another
(without succeeding in obtaining the property) are perhaps guilty of conspiring to
commit larceny by extortion, or of attempt to do so, but not the crime of larceny
by extortion. See People v. Teal, 89 N.E. 1086, 1092 (N.Y. 1909) (Haight, J., dissenting)
(observing that “a person could be convicted of an attempt to commit larceny
when there is no property to steal”).
Finally, another section of the statute sets forth the pleading requirements
for a charge of larceny by extortion. See N.Y. Penal Law § 155.45. That section
provides:
1. Where it is an element of the crime charged that property was taken from
the person or obtained by extortion, an indictment for larceny must so
specify. In all other cases, an indictment, information or complaint for
larceny is sufficient if it alleges that the defendant stole property of the
nature or value required for the commission of the crime charged
without designating the particular way or manner in which such
property was stolen or the particular theory of larceny involved.
2. Proof that the defendant engaged in any conduct constituting larceny as
defined in section 155.05 is sufficient to support any indictment,
information or complaint for larceny other than one charging larceny by
18
21-932 (L)
U.S. v. Colotti
extortion. An indictment charging larceny by extortion must be
supported by proof establishing larceny by extortion.
Id.B
The petitioners argue that New York larceny by extortion is not divisible as
between extortion committed by threat of physical injury to a person, N.Y. Penal
Law §155.40(2)(a), and extortion committed by threat of damage to property, id.§ 155.40(2)(b). We disagree.
The statute’s text shows that New York extortion is divisible as between the
extortion offenses set forth in § 155.05(2)(e) that are punishable as second degree
grand larceny and those that are punishable as fourth degree grand larceny. The
alternatives listed in §§ 155.05(2)(e) and 155.40 are set apart by the disjunctive
phrase “or,” in separate sections and subsections. Though such a structure is not
necessarily dispositive in finding divisibility, it is at least indicative. See United
States v. Scott, 990 F.3d 94, 99 n.1 (2d Cir. 2021) (en banc) (New York first-degree
manslaughter statute, consisting of three alternative elements separated by “or,”
is divisible); United States v. Jones, 878 F.3d 10, 16–17 (2d Cir. 2017); Flores v. Holder,
779 F.3d 159, 166 (2d Cir. 2015) (New York first-degree sexual abuse statute,
consisting of four alternative elements separated by “or,” is divisible). Three of the
19
21-932 (L)
U.S. v. Colotti
nine forms of extortion enumerated in § 155.05(e) are punishable as second degree
grand larceny, whereas the remainder are punishable as fourth degree grand
larceny. See N.Y. Penal Law §§ 155.30, 155.40. The government identifies New
York caselaw treating the variants of extortion set out in § 155.05(e) as distinct
offenses. See People v. Caban, 696 N.Y.S.2d 1, 2 (App. Div. 1st Dep’t 1999) (holding
that a grand jury was not required to have been given an affirmative defense
instruction applicable to only one form of extortion, when the State charged only
a variant of extortion for which the affirmative defense was unavailable, even if
the evidence presented suggested that the defendant committed the extortion
offense for which the defense was available).
The petitioners suggest that even if the forms of extortion in § 155.05(e) that
are punishable as second degree grand larceny are divisible from those that are
punished as fourth degree grand larceny, the offense of second degree grand
larceny by extortion, N.Y. Penal Law § 155.40, is indivisible because it does not
require the jury to find unanimously which form of extortion the defendants
employed to commit the larceny. That certain extortion offenses carry greater
penalties than others, they contend, “does not show that extortion by instilling fear
of ‘physical injury to some person,’ as described in subsection (i) of § 155.05(2)(e),
20
21-932 (L)
U.S. v. Colotti
and extortion by instilling fear of ‘damage to property,’ as described in subsection
(ii) of § 155.05(2)(e), are divisible with respect to each other.” Appellants’ Br. at 46–
47. To find that the defendants violated § 155.40, the jury was not required to
specify whether the defendants threatened to cause physical injury, cause damage
to property, or abuse a position as a public servant in committing larceny. This
structure, petitioners argue, means that § 155.40 is indivisible and therefore the
categorical approach applies.
We are not convinced, because § 155.40 must be read in conjunction with
§ 155.45, which provides:
1. Where it is an element of the crime charged that property was taken from the
person or obtained by extortion, an indictment for larceny must so specify. In
all other cases, an indictment, information or complaint for larceny is
sufficient if it alleges that the defendant stole property of the nature or
value required for the commission of the crime charged without
designating the particular way or manner in which such property was
stolen or the particular theory of larceny involved.
2. Proof that the defendant engaged in any conduct constituting larceny as
defined in section 155.05 is sufficient to support any indictment,
information or complaint for larceny other than one charging larceny by
extortion. An indictment charging larceny by extortion must be supported by
proof establishing larceny by extortion.
N.Y. Penal Law § 155.45 (emphases added). This New York pleading requirement
for extortionate larceny, unlike some other forms of larceny, necessitates
21
21-932 (L)
U.S. v. Colotti
identification of the theory under which the property was stolen. This showing
would not be necessary if the statute were indivisible. The fair inference of the
requirement that a charge of larceny by extortion “must be supported by proof
establishing larceny by extortion” is that the facts establishing the particular
charged form of extortion – thus, facts that would differentiate violations of
subclauses (a), (b), and (c) of § 155.40(2) from one another – are an element and
must be found by the jury. The facts constituting the extortion would make clear
which of the alternative versions of extortion was violated and thus permit a
determination whether that version can be committed otherwise than by use of
force, such that the modified categorical approach properly applies. See Taylor, 142
S. Ct. at 2020 (considering federal felony as predicate for § 924 conviction and
observing, “The only relevant question is whether the federal felony at issue
always requires the government to prove—beyond a reasonable doubt, as an
element of its case—the use, attempted use, or threatened use of force.”); Descamps,
570 U.S. at 272 (“[W]hy limit the modified categorical approach only to explicitly
divisible statutes? The simple answer is: Because only divisible statutes enable a
sentencing court to conclude that a jury (or judge at a plea hearing) has convicted
the defendant of every element of the generic crime.”). That each subclause of
22
21-932 (L)
U.S. v. Colotti
§ 155.40(2) qualifies as grand larceny in the second degree is not dispositive. See
Banks v. United States, 773 F. App’x 814, 820 (6th Cir. 2019) (“To be sure, if statutory
alternatives carry different punishments, then under Apprendi they must be
elements. But the opposite is not true. Just because different punishments
necessarily show different offenses does not mean that the same punishment
necessarily shows the same offense.”) (internal quotation marks, marks indicating
alteration, and citation omitted). The question is whether state law requires the
government to prove the conduct identified in the charged subclause, and we
conclude that it does.
Because N.Y. Penal Law §§ 155.40 and 155.30(6) create distinct offenses, and
we read § 155.45 to clarify that the facts establishing the particular charged form
of extortion are an element and must be found by the jury, we hold that New
York’s extortion statute is divisible and apply the modified categorical approach.
C
Examining the divisible offenses contained in the New York larceny by
extortion statute, it is clear that some forms of larceny by extortion cannot be
committed without the actual or threatened use of force, whereas other forms do
not require force. Larceny by extortion through threat to damage property, N.Y.
23
21-932 (L)
U.S. v. Colotti
Penal Law § 155.40(2)(b), can be accomplished without the actual or threatened
use of force and therefore does not constitute a crime of violence. See Dioguardi,
168 N.E.2d at 688; Capparelli, 603 N.Y.S.2d at 102, 105. The government does not
argue otherwise. See Appellee’s Br. at 26–29. However, larceny by extortion
through threat to cause physical injury to a person, N.Y. Penal Law § 155.40(2)(a),
cannot be accomplished without a threatened use of force and therefore qualifies
as a “crime of violence” under the definition set forth in 18 U.S.C. § 924(c)(3)(A).
We now consider whether the jury found that the defendants committed a
crime of violence.
IV
In applying the modified categorical approach, we look to, among other
documents, the indictment, jury instructions, and verdict form to determine
whether the jury convicted each defendant of a crime of violence. See Descamps,
570 U.S. at 257. While it is true that the jury’s instructions contained two errors,
the petitioners have not shown that either error resulted in prejudice that would
entitle them to the relief they seek under 28 U.S.C. § 2255.
24
21-932 (L)
U.S. v. Colotti
A
In charging the jury as to Count One, which charge applied also to Count
Thirteen, the district court instructed the jury that it could convict a defendant of
larceny by extortion if it found “that the defendant obtained property from
another person . . . by instilling in the victim a fear that the defendant or a third
person would cause physical injury to some person . . ., or cause damage to property.”
App’x at A147 (emphasis added). Because, as explained above, larceny by threat
of damage to property can be accomplished without use of force, the court’s charge
erroneously allowed the jury to find the crime of violence required for the § 924(c)
conviction based on an offense that could be committed without use or threat of
force.
However, an erroneous jury instruction does not per se entitle the petitioners
to relief under § 2255 if the error had no injurious effect on the verdict. “To
determine whether a habeas petitioner was actually prejudiced or the error was
harmless, ‘a reviewing court finding such [instructional] error should ask whether
the flaw in the instructions “had substantial and injurious effect or influence in
determining the jury's verdict.”’” Stone v. United States, 37 F.4th 825, 829 (2d Cir.),
cert. denied, 143 S. Ct. 396 (2022) (alteration in original) (quoting Hedgpeth v. Pulido,
25
21-932 (L)
U.S. v. Colotti
555 U.S. 57, 58 (2008) (per curiam)). Where we consider the appeal of a denial of a
§ 2255 motion, as we do here, our inquiry requires us to “review the whole record”
to determine whether an error was prejudicial. Id. at 831. We recently observed in
a similar case that,
in the context of a § 924(c) conviction, where a jury's finding of guilt
is based on two predicates, only one of which can lawfully sustain
guilt, we will find the error harmless when the jury would have found
“the essential elements of guilt on the alternative charged predicate
that would sustain a lawful conviction” beyond a reasonable doubt.
Id. (quoting Laurent, 33 F.4th at 86). In Stone, the jury had been instructed
erroneously that it could predicate the petitioner’s § 924(c) conviction on either of
two offenses it found proven, conspiracy to commit murder in aid of racketeering
(an offense that does not qualify as a crime of violence) or murder in aid of
racketeering (an offense that does qualify), and the verdict on the § 924(c) count
did not specify the predicate crime upon which it was based. Id. at 827–28. We
held, nonetheless, that Stone failed to show that this error prejudiced him, because
we concluded that “a properly instructed jury would have found . . . beyond a
reasonable doubt” that Stone used a firearm in relation to the valid predicate crime
of substantive murder: The jury had convicted Stone of substantive murder, and
“the uncontroverted evidence at trial was that Stone killed [the victim] with a gun
26
21-932 (L)
U.S. v. Colotti
that he had borrowed for that purpose.” Id. at 832. We therefore denied Stone’s
§ 2255 petition. Id. at 832–33.
We have applied a similar standard in reviewing jury instructions for plain
error on direct appeal. In Laurent, the defendants-appellants were convicted of
§ 924(c) offenses for which, according to the trial court’s erroneous jury
instructions, the predicate crime of violence could have been either a conspiracy
to violate RICO (which could not qualify as a crime of violence) or a substantive
violation of RICO (that could so qualify). 33 F.4th at 85. We upheld two of the
defendants-appellants’ § 924(c) convictions because we determined that “the jury
found . . . the elements necessary to convict” of a § 924(c) offense “predicated on
the substantive RICO charge.” Id. at 89. Although the jury had not found expressly
that these defendants “used or carried a firearm during and in relation to the
commission of the crime of violence” or “possessed a firearm in furtherance of that
crime,” we nevertheless observed that “the jury verdict together with the evidence
gives a very high degree of confidence that the jury so found.” Id. at 89–90 (emphasis
added). The jury, in finding these defendants guilty of a substantive RICO offense,
had found proven beyond a reasonable doubt that both defendants committed
distinct murders. Id. Both murders were undisputedly committed using firearms,
27
21-932 (L)
U.S. v. Colotti
and the jury heard testimony that each defendant used or possessed a firearm in
connection with the murders they respectively committed. Id. Because the jury
verdict and the trial evidence thus “g[ave] a very high degree of confidence that
the jury . . . found” that the two defendants used or carried a firearm during and
in relation to the commission of a crime of violence, or possessed a firearm in
furtherance of that crime, the defendants failed to show plain error that “affect[ed]
[their] substantial rights,” and we affirmed their § 924(c) convictions. Id. at 90.
As in Stone and Laurent, the verdict and the trial evidence here give us a high
degree of confidence that a properly instructed jury would have convicted the
defendants on Count Thirteen based on a valid predicate crime of violence: New
York larceny by extortion through threat of injury to a person, N.Y. Penal Law
§ 155.40(2)(a). The evidence presented to the jury overwhelmingly showed that the
petitioners made threats of physical injury in connection with Racketeering Acts
Four and Five. The jury heard testimony from Mikhail Hirakis, a victim of the
incident at the Soccer Fever gambling club that formed the basis of Racketeering
Act Five. Hirakis testified that the club was stormed by a group of “15 people
. . . with guns” who shut down the gambling operation that night. That group
included all the petitioners. Hirakis testified that the petitioners and their
28
21-932 (L)
U.S. v. Colotti
associates “were pointing to us with their Uzi and the pistols.” Hirakis further
testified that, when Soccer Fever was stormed, “we were threatened by 15 guns
and an Uzi” and that the petitioners beat him and bludgeoned him in the head
with a gun, causing Hirakis to seek medical treatment. 2 Another witness testified
that after beating Hirakis, several members of the Rudaj Organization announced
to the gamblers that “[i]f they catch any one of those players at another barbut
[dice game] other than [the Rudaj Organization’s gambling establishment], they’re
going to take care of every single one of them that goes to another barbut.” Rudaj
stated to the club's patrons, “I don't want to see nobody here. If I see [you] one
more time, I swear to God . . . I beat you . . . one by one. I eat you up . . . . It's
closed.” Ivezaj, 568 F.3d at 92 (alteration and omissions in original).
2Count Four of the indictment charged all petitioners with assaulting Hirakis by
“str[iking] [him] in the head with a firearm.” The jury acquitted the petitioners on that
count. The petitioners argue that this aspect of the verdict “suggests that the jury . . .
may have harbored reasonable doubt as to the substantive extortion charged in
Racketeering Act Five, and that it may have found Racketeering Act Five ‘[p]roven’
based on extortion conspiracy only.” Appellants’ Br. at 59. But substantive extortion
requires proving that the petitioners made threats to “cause physical injury to some person
in the future,” N.Y. Penal Law § 155.40(2)(a) (emphasis added), not that they actually
carried out the threatened future violence. Thus, insofar as the jury’s acquittal on Count
Four undermines confidence that the petitioners carried out threats of physical harm that
they made during the Soccer Fever incident, it does not address the powerful evidence
showing that the petitioners threatened the patrons with physical harm.
29
21-932 (L)
U.S. v. Colotti
The jury also heard testimony that the petitioners beat another victim,
Antonios Balampanis, the extortion of whom all but Colotti were charged with in
Racketeering Act Four. That testimony included Balampanis’s statement that
during the beating, “it felt like somebody hit me with a pistol,” at which point he
lost consciousness. Balampanis was an associate of Fotios Dimopoulos, who
supervised gambling operations in Astoria for the Lucchese Crime Family, and the
petitioners sought to seize control of these operations. Ivezaj, 568 F.3d at 92. Later,
Dimopoulos “told Balampanis that his beating had been intended as ‘a message’
for Dimopoulos, and Dimopoulos never returned to gambling clubs in Astoria
following the assault.” Id.The jury’s express findings conform to the overwhelming evidence that the
petitioners threatened physical injury in connection with the acts of extortion that
the jury found proven. The jury found specifically that the petitioners brandished
firearms while committing an act of extortion under New York law. The court
instructed the jury that “[t]o ‘brandish’ a firearm means to display all or part of it,
or to otherwise make its presence known to another person in order to intimidate
or advise that person that violence is imminently and immediately available.”
Although a firearm could, in theory, be brandished to threaten damage to property
30
21-932 (L)
U.S. v. Colotti
alone, the evidence showing that the petitioners made threats of physical injury
makes it highly unlikely that the jury would have premised the Count 13
convictions upon the brandishing of a firearm solely to threaten damage to
property.
Thus, looking to the verdict and the record as a whole, we have a “high
degree of confidence that the jury . . . found” that the petitioners’ § 924(c)
convictions were predicated upon a New York larceny by extortion offense that
involves threats of physical injury, N.Y. Penal Law § 155.40(2)(a), as opposed to
threats of harm to property, N.Y. Penal Law § 155.40(2)(b), and that a properly
instructed jury would have so found. See Laurent, 33 F.4th at 90.
However, our inquiry does not end here. To evaluate whether the jury
instructions prejudiced the petitioners, we must also ask whether we can be
confident that a properly instructed jury would have predicated the petitioners’
Count 13 convictions upon a finding that the petitioners committed the completed
offense of larceny by extortion through threats to cause physical injury, as opposed
to an inchoate variation of that offense, such as conspiracy or attempt to commit
larceny by extortion.
31
21-932 (L)
U.S. v. Colotti
B
A second aspect of the court’s instructions to the jury proved to be
erroneous in light of subsequent Supreme Court decisions. The indictment
charged that Racketeering Acts Four and Five, relating to larceny by extortion,
could be accomplished in any of three ways -- either by conspiracy to commit
larceny by extortion, attempted larceny by extortion, or the substantive offense of
larceny by extortion. The court charged the jury that it could find a defendant
guilty of Racketeering Acts Four and Five under Count One, which served as
predicate for the § 924(c) charge in Count Thirteen,
by finding beyond a reasonable doubt that he committed either an
extortion or an attempted extortion. If you are in unanimous
agreement that the defendant committed at least an attempted
extortion, you do not need to go further to consider whether the
extortion was actually completed.
...
Alternatively, you may find that the defendant you are considering
committed Racketeering Act Four or Five by finding that the
defendant became a member of a conspiracy to commit the charged
extortion.
App’x at A148–49. The court did not call upon the jury to render special verdicts
specifying whether its finding of guilt was predicated on conspiracy, attempt, or
the completed offense, or some combination of the three.
32
21-932 (L)
U.S. v. Colotti
Our court has made clear in United States v. Barrett, following the Supreme
Court’s ruling in Davis, that a conspiracy offense cannot constitute a crime of
violence because conspiracy can be accomplished solely by agreement without
any use or threat of force. See United States v. Barrett, 937 F.3d 126, 128–30 (2d Cir.
2019); accord United States v. Capers, 20 F.4th 105, 118–19 (2d Cir. 2021) (“[T]he
mere agreement to commit [violent] crimes does not require the use of force – or
any action beyond the agreement itself – and therefore is not categorically a
violent crime.”). The Supreme Court later decided in Taylor, subsequent to oral
argument in this case, that the crime of attempt to commit Hobbs Act robbery, 18
U.S.C. § 1951(a), cannot be a crime of violence because it can be accomplished
without the use or threat of force. 142 S. Ct. at 2020–21. While the Supreme
Court’s ruling in Taylor related to Hobbs Act robbery and not to New York
larceny by extortion, the same reasoning would bar satisfying the requirement of
a crime of violence by attempted larceny by extortion. Even if the completed
offense necessarily involves the use or threat of force, the offense of attempt to
commit that crime can be accomplished by taking steps that do not include the
use or threat of force so long as they come sufficiently close to completion of the
substantive offense. See id.; see also People v. Bracey, 360 N.E.2d 1094, 1097 (N.Y.
33
21-932 (L)
U.S. v. Colotti
1977) (conduct constituting attempt “must ‘carry the project forward within
dangerous proximity to the criminal end to be attained’” (quoting People v.
Werblow, 148 N.E. 786, 789 (N.Y. 1925))); N.Y. Penal Law § 110.00 (“A person is
guilty of an attempt to commit a crime when, with intent to commit a crime, he
engages in conduct which tends to effect the commission of such crime.”).
We find “ample evidence in the record that a properly instructed jury
would have found,” Stone, 37 F.4th at 832, that the petitioners committed the
completed offense of New York larceny by extortion (as the predicate for Count
Thirteen), as opposed to mere conspiracy or attempt to commit larceny by
extortion, neither of which, after Davis, Barrett, and Taylor, can be a crime of
violence. See Taylor, 142 S. Ct. at 2020; Davis, 139 S. Ct. at 2336; Barrett, 937 F.3d at
128–30. The completed offense of New York larceny by extortion requires that
the defendants succeeded in “tak[ing], obtain[ing] or withhold[ing]” property.
N.Y. Penal Law § 155.05(1); see Jennings, 504 N.E.2d at 1086 (“[T]he ‘taking’
element [of larceny] . . . is separately defined in the statute and is satisfied by a
showing that the thief exercised dominion and control over the property for a
period of time, however temporary, in a manner wholly inconsistent with the
owner’s continued rights.” (citations omitted)). Here, the evidence at trial
34
21-932 (L)
U.S. v. Colotti
showed that the Soccer Fever incident marked “the end of Soccer Fever,” and
that the Rudaj Organization thereby subsequently increased the extent of its
control of illegal gambling in Astoria. Ivezaj, 568 F.3d at 92. Shutting down a
competitor through extortionate actions, and thereby strengthening one’s own
business, amounts to obtaining property through extortion. See id. (“[A]n illegal
gambling business can constitute property under New York [extortion] law.”).
The evidence gives us a high degree of confidence that a properly instructed jury
would have found that the petitioners committed the completed offense of
larceny by extortion through their violent threats of physical injury.
C
To recapitulate, a § 2255 petitioner cannot obtain relief from an
instructional error of the sort challenged here when the court, on the basis of the
amplitude of the evidence, combined with the jury’s findings, concludes with a
high degree of confidence “that a properly instructed jury would have found”
that he committed a § 924(c) offense predicated upon a valid crime of violence.
Stone, 37 F.4th at 832. The record before us precludes § 2255 relief. On the basis of
the ample trial evidence combined with the jury’s actual findings, we conclude
with high confidence that, as to each of the petitioners, a properly instructed jury
35
21-932 (L)
U.S. v. Colotti
would have rendered guilty verdicts on Count Thirteen’s charge of brandishing a
firearm, in furtherance of a crime of violence, predicated on (a) brandishing a
firearm in furtherance of (b) a substantive RICO offense in turn predicated on (c)
a completed offense of New York larceny by extortion that was (d) divisible from
other forms of New York larceny by extortion, and (e) required proof of actual or
threatened physical injury to a person. The petitioners therefore fail to
demonstrate that the error was prejudicial, and thus, relief under § 2255 is
unwarranted.
CONCLUSION
The judgment of the district court is affirmed.
36