         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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