191
1
2 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3
UNITED STATES OF AMERICA,
4
Plaintiff,
-against- 90 Civ 5722
6
DISTRICT COUNCIL OF NEW YORK CITY and
7 VICINITY OF THE UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA,
8 et al.,
9 Defendants.
10
11
12 CONTINUED DEPOSITION OF ANTHONY
13 ARGUELLES, the witness herein, taken by
14 Plaintiff, at the offices of Doar, Rieck & Mack,Esqs.,
15 Broadway, New York, New York, on
16 Friday, January 7, 2005, at 5:00 p.m., before
17 ROBERT BLOOM, a Shorthand Reporter and notary
18 public, within and for the State of New York.
19
20
21
TANKOOS REPORTING COMPANY, INC.
22 305 Madison Avenue 142 Willis Avenue
Suite 449 P.O. Box 347
23 New York,NY 10165 Mineola, NY 11501
24 (212) 349-9692 (516) 741-5235
25
192
1
2 APPEARANCE S:
3 DOAR, RIECK & MACK
217 Broadway - 7th floor
4 New York, New York 10007-2911
BY: WALTER MACK, ESQ.,
5 Independent Investigator
6
7 EDWARD SCARVALONE, ESQ.
Assistant United States Attorney
8 United States Department of Justice
86 Chambers Street
9 New York, New York 10007
10
11 O'DWYER & BERNSTEIN, ESQS.
Attorneys for District Council
12 52 Duane Street
New York, New York 10007
13 BY: GARY ROTHMAN, ESQ.
14
15 DINO J. LOMBARDI, ESQ.
Attorneys for Witness
16 52 Duane Street - 7th floor
New York, New York 10007
17
ALSO PRESENT:
18
DON SOBOCIENSKI, Investigator
19
20
21
22
23
24
25
193
1
2 INDEX
3 WITNESS EXAMINATION BY PAGE
4 Anthony ArguellesMr. Mack 194,260, 289,
347,410, 422
5
6 Mr. Scarvalone 259, 417
Mr. Rothman 288, 346
7
8 Mr. Sobocienski 409
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
194
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2 MR. MACK: Let's go on the record.
3 EXAMINATION BY
4 MR. MACK:
5 Q. Mr. Arguelles, let me apologize to you
6 for starting here somewhat late.
7 As I have mentioned to you, I just
8 received information about a dear friend's
9 illness, and that caused some of the delay.
10 I apologize for starting late on a
11 Friday afternoon, I will try to be as efficient
12 as I can be in our proceeding this evening.
13 I want to mention a couple of
14 additional things.
15 Obviously despite Mr. Lombardi's desire
16 for me to go through the entire warning system
17 again because he enjoys it so much, I am going
18 to presume that you recall the extensive time
19 period I spent when you were here on December
20 15th about what your rights are and what the
21 procedures are and how important it is to be
22 accurate and precise and truthful about the
23 subject matter, because it will save us
24 considerable time.
25 Unless there are some specific
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1 Arguelles
2 questions that you have some uncertainty with,
3 everything I said about your rights as a witness
4 and your ability to consult and take a break and
5 ask me to clarify matters and everything that I
6 said before is still obviously in effect.
7 This is simply a continuation of the
8 last proceeding. And I believe it was on
9 December 15th, in which you were here before,
10 and where we ended around 10 p.m. with your
11 request that you be given sometime to consult
12 with counsel on a subject which we will quickly
13 return to.
14 And notwithstanding some concern on
15 behalf of the attorneys that were present, that
16 request of yours was granted, and we are
17 continuing today pretty much where we left off
18 the last time.
19 Let me at least ask at this moment:
20 Are there any questions that you would like to
21 ask or your counsel would like to ask that are
22 unclear in your mind about your rights or what
23 this procedure is or who I am or what we're
24 doing?
25 A. No.
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1 Arguelles
2 Q. Let me add a couple of other subjects
3 which are at least in fairness I'm now making a
4 practice of disclosing when I'm questioning
5 people under oath, or questioning people, as
6 part of my function as the independent
7 investigator.
8 And that is that the District Council
9 has determined that they would like to end my
10 service at some time in the future. And the
11 reasons for that are theirs and that is
12 something I am not going to be directly involved
13 in.
14 But it is at least possible, maybe even
15 probable, that my term as independent
16 investigator will end in the very near future.
17 And that is something which I believe is subject
18 to the judge's determination, and probably will
19 result in a judge's resolution of that topic.
20 But it is at least possible maybe even
21 likely that my term and my authority will end in
22 the very near future.
23 And therefore you at least should be
24 advised and your counsel can consider it that
25 since that may be true, you may at least
1 Arguelles 197
2 consider the possibility of declining to
3 continue or I just can't anticipate how much
4 longer, and what reports I will be able to
5 write, and there is at least some uncertainty
6 there notwithstanding the fact that I will ask
7 Judge Haight for permission to conclude all of
8 the matters that I had begun.
9 I never predict what Judge Haight will
10 do.
11 In fairness to you and to your counsel,
12 I think I have to at least disclose to you that
13 my ability to continue in the role that I am
14 taking tonight is definitely open to question.
15 So if there is anything either of your
16 want to ask me about that, in fairness to you I
17 should tell that you so you can make whatever
18 decisions you may feel you wish to.
19 I would say the last time I disclosed
20 it, counsel proceeded. But I am not going to
21 anticipate anything. And I wouldn't presume by
22 any means that Judge Haight is going to say
23 well, it stopped and these investigations don't
24 continue, and because Anthony walked out on
25 January 7th, he is home free.
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1 Arguelles
2 I certainly wouldn't predict the judge
3 to say that. That is your call to make. I am
4 not going to encourage you to walk out, but that
5 is a decision I think I have the obligation to
6 disclose, the fact that my role as independent
7 investigator, its longevity is certainly a
8 matter in question at the moment.
9 MR. LOMBARDI: In response to that, we
10 did discuss this last time, and Mr. Arguelles
11 was present for at least part of that
12 discussion, and I think you and I talked about
13 it a little bit ourselves, Walter.
14 And I think it's fair to say that your
15 position would be if for some reason Mr.
16 Arguelles chose either himself or on the advice
17 of counsel to not continue the deposition, I
18 assume your position would be in that your
19 letter to him was issued in November 2004, and
20 that the initial stage of the deposition
21 commenced before such time as your tenure was
22 up, that you would take the position before the
23 court that any matters that were already part of
24 your jurisdiction, so to speak prior to your
25 term coming to an end, that you would be
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1 Arguelles
2 permitted, and the court would be well advised
3 to allow you to complete.
4 MR. MACK: You should have no doubt
5 about it.
6 You should also consider should you
7 walk out tonight the likelihood is that I would
8 be speaking to the judge on notice to you on
9 Monday morning asking that your client be
10 ordered to return and appear.
11 MR. LOMBARDI: So I wanted the record
12 to be clear. Because quite frankly what you
13 said before I began speaking almost seemed as if
14 Mr. Arguelles was being given the option to
15 discontinue or not.
16 If that was just your being very modest
17 and moderate in portraying the situation to him,
18 then that's great.
19 But as I have explained to my client,
20 we talked about last time, certainly you would
21 take the position that you are fully entitled to
22 continue with his deposition, and I, quite
23 frankly, have little or no doubt that Judge
24 Haight would concur with that viewpoint.
25 So here on the record in front of
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2 everybody, I don't think we -- if you want to
3 talk to me about this we can go off and talk for
4 a minute.
5 THE WITNESS: No, let's proceed.
6 MR. LOMBARDI: It's my belief that
7 Judge Haight would say that Mr. Mack is
8 empowered to continue and complete the
9 deposition,whatever the actuality of his tenure
10 is as investigator.
11 MR. MACK: I would hate for you to see
12 me in several months and say if you had told me
13 that we never would have proceeded on the night
14 of the 7th.
15 So I err on the side of disclosure and
16 I couldn't presume you were aware of my
17 termination.
18 MR. LOMBARDI: You have not been
19 terminated yet.
20 MR. MACK: I haven't. I know that
21 might change your opinion.
22 MR. ROTHMAN: Would you like me to?
23 MR. MACK: Absolutely not.
24 MR. ROTHMAN: That might change our
25 opinion.
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1 Arguelles
2 MR.MACK: Forgive our humor.
3 Q. Carpenters have their own humor and
4 lawyers do as well.
5 I want to cover a couple of other
6 areas.
7 One of which is, I know you brought me
8 records tonight. I have the benefit of reading
9 the transcript of your prior appearance, that is
10 an advantage that I have as an agent of the
11 court. I do not disclose transcripts until I am
12 prepared to write my final report on the topic
13 as a practice.
14 Although I do consider, from time to
15 time should there be an absolute need, or a need
16 expressed to me, I feel an obligation to at
17 least evaluate whether the transcript or
18 portions of it should be released prior to my
19 final report.
20 But having read the transcript, one of
21 the things that is clear is a number of your
22 answers to questions you answered that "I may be
23 able to answer this question better with my
24 records."
25 And that came up a couple of times, I
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2 know you brought records tonight. And I want
3 to make certain that if any of the answers or
4 topics that we covered before -- we were in the
5 period of around April, May and June of 2000.
6 In order to cut to the chase here, if
7 there were answers that you gave about the prior
8 jobs and questions I asked of you as to prior
9 jobs or where you were working or whether you
10 were working when you were on the license, I
11 would at least reiterate my request that should
12 your answer be different than it was the last
13 time because your recollection has been
14 refreshed by records that you have now reviewed
15 -- I don't believe you have because I don't
16 think you brought anything in that time period.
17 A. I don't do that.
18 Q. But I don't want to make the
19 presumption.
20 And if there were a change in the time
21 period that we have already spent some time
22 with, I am inviting that correction or
23 modification now to avoid forgetting about it
24 later in the day.
25 So I don't know what your answer to
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2 that question is.
3 Is any record you reviewed available to
4 you, recognizing that you have said a couple of
5 times that your records might assist you, have
6 those records in any way assisted you to
7 remember any of the jobs we talked about in the
8 period prior to April, May, June, 2000?
9 MR. LOMBARDI: Have you looked at the
10 records?
11 A. I haven't looked at anything previous
12 to where we left off.
13 Q. Do you have any records for the period
14 prior to April, May and June 2000 somewhere that
15 we didn't bring today or that could be available
16 to you?
17 A. Honestly, I really don't -- I was lucky
18 to even find the May, June and April ones. I
19 didn't think I had those.
20 Q. Here is where it is on the records
21 there, is where I would like to leave it today.
22 The answers that you gave me with
23 respect to the jobs up to April 2000 will stay
24 as recorded by the reporter.
25 And I will presume that no records
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2 exist that you are able to find prior to that,
3 let's say April 2000, unless should they exist,
4 then I would say that that obligation is of
5 yours and Mr. Lombardi's to produce those
6 records and change or alter or modify or add or
7 supplement your answer.
8 That burden will be upon you.
9 Otherwise, I will keep the record as it sits
10 today unless you want to come forward and say
11 I have other records, something else occurred to
12 me, I had some other way to refresh my
13 recollection.
14 MR. MACK: Is that fair?
15 MR. LOMBARDI: Yes.
16 MR. MACK: Now, let me just ask: Is
17 there anything else you would like to see?
18 MR. LOMBARDI: The exhibits last time,
19 Exhibit 1 obviously was the letter.
20 MR. MACK: Right.
21 MR. LOMBARDI: Exhibit 2 is the skill
22 history or work referral history which begins
23 with the list of skills.
24 MR. MACK: Are you asking me to
25 confirm this?
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2 MR. LOMBARDI: What I have, I'm
3 wondering why I have it, I have 1, 2 and 3, 3
4 being the benefits history.
5 And I have Exhibit 7 which are the
6 actual compilation of the manning requests and
7 dispatches.
8 What were Exhibits 4, 5 and 6?
9 MR. MACK: Those are exhibits that
10 exist in my brain at the moment.
11 MR. LOMBARDI: In your brain.
12 MR. MACK: But may not be used.
13 MR. LOMBARDI: And were not used the
14 last time.
15 MR. MACK: To my belief have not been
16 used so far.
17 MR. LOMBARDI: I want to make sure I
18 didn't somehow bring a partial file.
19 MR. MACK: No.
20 There are exhibits that exist somewhere
21 in this office that have those numbers, but they
22 are not part of this proceeding yet.
23 MR. LOMBARDI: I just want to make
24 sure I didn't bring an incomplete set.
25 MR. MACK: Should they become part you
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2 will have a copy, fair enough?
3 MR. LOMBARDI: Fair enough.
4 MR. MACK: Anything else?
5 MR. LOMBARDI: No.
6 MR. MACK: Mr. Rothman, anything you
7 would like to say or express before we resume
8 where we were? I know you did make a fairly
9 direct comment at the very end of our proceeding
10 last time, and I have that in mind, feel free,
11 of course to say anything you wish.
12 MR. ROTHMAN: The District Council
13 remains committed to the efficacy of the II's
14 investigations from now until whenever its term
15 may end.
16 MR. MACK: I appreciate that. The
17 fact that it may end tomorrow shouldn't bother
18 anyone.
19 That is a poor attempt at humor, I
20 don't mean to take likely your statement.
21 Anything else, Gary, you would like to
22 say?
23 MR. ROTHMAN: No.
24 MR. MACK: Mr. Scarvalone?
25 MR. SCARVALONE: I am Edward
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2 Scarvalone from the U.S. Attorney's Office.
3 Last time Lisa Zornberg was here, she couldn't
4 make it tonight, I am here in her place.
5 Q. The very same things I said about Ms.
6 Zornberg in terms of being my guest, and about
7 the government, is coming from the office, part
8 of the civil division, not a prosecutor, all of
9 those things are exactly the same, and Mr.
10 Scarvalone is just substituting for Ms. Zornberg
11 tonight because of her unavailability.
12 Let's proceed.
13 I think just out of an excess of
14 caution I will ask the reporter to swear you
15 again, less there be any concern.
16 Normally it's simply a continuation.
17 I would argue this is a continuation, but to
18 remove any, shall we say ambiguity on your part,
19 it's not because I don't except that you would
20 be absolutely truthful and accept my
21 representation, I would like to, in excess of
22 caution ask Mr. Bloom to swear the witness.
23 Whereupon,
24 ANTHONY ARGUELLES,
25 after having been previously sworn, was examined
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2 and testified further as follows
3 BY MR. MACK:
4 Q. Mr. Arguelles, when we last retired
5 prior to the holiday season, we seem to be
6 focused on a period in April, May and June of
7 2000, concerning benefits paid for you at L&D
8 Installers.
9 And the way the record sits at the
10 moment is that you described the job, I think
11 you describe it in the vicinity of Astor Place
12 or Astor Plaza.
13 A. Astor Place, down in that area. The
14 exact address I don't recall.
15 Q. Let me summarize here and also give you
16 some cautions so that we can pretty much pick up
17 where we were then.
18 What I was trying to ask you about was
19 where was the job, who was there, who was the
20 shop steward, was there job reported, to whom
21 was it reported, and that was sort of the
22 threshold of where we were.
23 At that time you were the beneficiary
24 of advice and discussion with your counsel which
25 is absolutely appropriate and exactly one of the
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2 reasons why he is here.
3 I don't mean to in any way indicate
4 there is anything wrong with that. That is why
5 Mr. Lombardi is here, you should feel entitled
6 to speak to him at any time tonight, of course,
7 in the same way.
8 One other thing that is very important
9 tonight is everybody involved, when we finally
10 adjourned, I think it was close to 10 o'clock
11 that Friday night, was that we wanted to make
12 sure that we understood the mechanism whereby
13 this topic was assessed by you subsequent to the
14 -- afterwards, during the holiday period, and to
15 make sure there was no effort by anyone, let me
16 put it that way, to influence your description
17 of the truth.
18 In other words, this is probably the
19 most important thing I say on any one of these
20 occasions, the standard here that is applied is
21 does the witness honor their oath. Are they
22 telling the truth, the whole truth and nothing
23 but the truth.
24 And what there is, obviously an ability
25 should there be something that arguably could