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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
-against- 90 CIV 5722 (CSH)
DISTRICT COUNCIL OF NEW YORK CITY
AND VICINITY OF THE UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, et.al.,
Defendants.
Independent Investigator Deposition x
February 24, 2005
2:30 o'clock p.m.
DEPOSITION of STEPHEN ARGUELLES,
taken by the Independent Investigator, Walter_
Mack, Esq., pursuant to letter subpoena, at the
offices of Doar, Rieck & Mack, Esqs., 217
Broadway, 7th Floor, New York, New York
10007-2911, before Stewart Nissenbaum, a Shorthand
Reporter and Notary Public of the State of New
York.
TANKOOS REPORTING COMPANY, INC.
305 Madison Avenue 142 Willis Avenue
Suite 449 P.O. BOX 347
New York, N.Y. 10165 Mineola, N.Y. 11501
(212)349-9692 (516)741-5235
1 2
APPEARANCES:
2
3
DOAR RIECK & MACK
4 217 Broadway, 7th Floor
New York, New York 10007-2911
5
BY: WALTER MACK, ESQ.
6 Independent Investigator
7
8 O'DWYER & BERNSTEIN, ESQS.
Attorneys for Union
9 52 Duane Street
New York, New York 10007
10
BY: JASON FUIMAN, ESQ.
11
12
DINO J. LOMBARDI, ESQ.
13 Attorney for Witness
52 Duane Street
14 New York, New York 10007
15
16 ALSO PRESENT:
17 Donald Sobocienski
18
19 *
20
21
22
23
24
25
1 3
2 MR. MACK: Let's go on the
3 record.
4 I want to go through what is
5 fairly customary for me, Mr. Arguelles,
6 which is designed to make sure you
7 understand all of your rights, and any
8 questions you may have, or your counsel
9 may have, that they get answered.
10 want to put you at ease. It is very
11 boring and tedious, everybody has heard
12 it countless times. You are the most
13 important person in the room, and it is
14 my job as an agent of the Court to
15 ensure that you are being treated fairly
16 and that you understand what is
17 happening, and that any questions you
18 may have, that I answer to the best of
19 my ability.
20 So let me start. I had the
21 pleasure of meeting your brother at some
22 length, so I'm sure you gentlemen spoke
23 a little bit about what's happening.
24 Notwithstanding that, it is my job to
25 ensure and to go through the whole thing
1 4
2 again and answer whatever questions
3 there may be.
4 My name is Walter Mack, and
5 basically I'm an agent of Judge Haight,
6 a Federal District Court judge, the
7 judge overseeing the Consent Decree
8 involving the U.S. Attorney's Office and
9 the District Council of Carpenters.
10 There's an Order which I believe
11 Mr. Lombardi has had, in the past, a
12 copy of, which is a public document that
13 sets forth my responsibilities, my
14 duties, and my authority to undertake
15 certain functions on behalf of the
16 Court.
17 In essence, my job is as an
18 investigator. I am not a prosecutor. I
19 have no authority to discipline
20 carpenters on my own. I basically am a
21 fact-gatherer; I like to think a
22 truth-seeker and a report-writer. As a
23 result of that, I gather information
24 through my authority to require people
25 such as yourself to appear before me to
1 5
2 answer, under oath, questions about
3 subjects which are of significance to
4 me.
5 I have a number of reports
6 underway in various aspects, different
7 reports, and the Order pretty much
8 specifies my duties. I have evaluation
9 functions in terms of the out-of-work
10 list and how things work. I take a look
11 at jobsites to see whether there's
12 wrongdoing on them. I try to describe
13 for the Court, what is happening, how
14 various aspects that are under his
15 umbrella function.
16 It is my purpose to go through
17 all of your rights, and things of that
18 nature. The reason we have a
19 stenographer, since I am an agent of the
20 Court, the judge or his clerks will be
21 certain to read what happens, and will
22 be interested in reading and hearing
23 your words and responses.
24 You, as any witness who appears
25 here, have a series of rights that it is
1 8
2 tell me something untrue, or simply
3 withhold information from me, that is
4 potentially a federal crime, obstruction
5 of justice; you're undertaking to delay
6 or deny me the opportunity to find out
7 the facts, that's a federal crime and
8 could result in sanctions and
9 imprisonment.
10 I have no reason to believe that
11 you would lie to me or say anything to
12 me that is untrue. But, the reality is,
13 that there have been people who have
14 come here and lied under oath; and what
15 I say to them, and did say to them, and
16 what I say to you: If I conclude, and I
17 do so with care, that you have lied to
18 me or intentionally deceived me, there
19 should be no doubt in your mind that I
20 would recommend to the judge that you be
21 prosecuted for doing that. But it is
22 only a recommendation. The judge may
23 disagree with me; and basically, a
24 prosecutor could decide that you didn't
25 lie. I don't make that decision, but I
1 9
2 think it is in fact likely that the
3 judge will consider my recommendation
4 seriously. And as a matter of
5 importance, since I am his agent and
6 have worked with him at length in this
7 matter, and I think he has, at least for
8 a while, a willingness to consider my
9 recommendation as being important.
10 Now, in addition to that, because
11 this is a proceeding of the District
12 Court through its agent, you have
13 certain rights here that you might not
14 have in the District Council. One of
15 those rights, a very important right, is
16 the right to take the Fifth Amendment,
17 which means if I ask you a question
18 which, in your mind, would tend to
19 incriminate you, you can say, you know,
20 Mr. Mack, I really decline to answer
21 that question. That's your right. I
22 don't take it personally as something
23 that I'm going to be deeply offended by
24 and look to harm you as a result of it.
25 On the contrary; it is a constitutional
1 10
2 right, every witness has that right in
3 the courts, and since you're assisted
4 today by able counsel, if you reach a
5 situation where you think the Fifth
6 would be appropriate, I would ask you to
7 be excused, discuss the matter with
8 Mr. Lombardi, to decide whether or not
9 you do in fact wish to assert the Fifth
10 Amendment. That's your call.
11 I don't anticipate asking a
12 question which, in my view, would tend
13 to actually present a possibility of a
14 criminal charge, but I don't know what
15 you know, I don't know what your
16 experiences have been. That's why that
17 decision is yours to make, with the aid
18 of counsel.
19 So, if I ask you something which
20 you would like -- about anything,
21 certainly about the Fifth Amendment, all
22 you have to do is ask to be excused from
23 the room, and you and Mr. Lombardi can
24 discuss the subject at whatever length
25 you feel is appropriate. In fact, as
1 11
2 Mr. Lombardi may remember, you know,
3 sometimes those discussions take hours
4 at a time, or at least a long time,
5 close to an hour.
6 MR. LOMBARDI: So recalled.
7 MR. MACK: My view is that it is
8 important that your testimony be
9 accurate, and that you understand your
10 rights. And if it's your legal decision
11 to proceed by taking the Fifth
12 Amendment, you can freely go ahead and
13 do that. My only recommendation is that
14 you discuss it with Mr. Lombardi before
15 you do.
16 One of the reasons why it is very
17 important to discuss it with Mr.
18 Lombardi is, that I have a practice with
19 respect to carpenters, or anyone who
20 asserts the Fifth Amendment before me.
21 One, I also refer the matter to a
22 prosecutor for evaluation, sooner or
23 later, because I am not going to be in a
24 situation where I don't know why you're
25 asserting the Fifth Amendment; and so
1 12
2 therefore, if there's a reason there
3 that is serious, that's what
4 prosecutors' jobs are, to assess whether
5 there's a crime there that needs to be
6 pursued.
7 Second of all, if you don't
8 answer a question that I ask you about,
9 having to do with your work as a
10 carpenter, as a shop steward, or what
11 have you, I am free to conclude that
12 from other facts I may have heard, I can
13 draw conclusions that are adverse to
14 your view. In other words, if a
15 carpenter tells me something about
16 job, and I think you should be able to
17 tell me the opposite, and you refuse to
18 do so, I can accept the other
19 carpenter's view of what really happened
20 on the job. That's my decision, based
21 upon my own experience and judgment.
22 Sometimes I do, sometimes I don't. I
23 don't want to predict it, I just have to
24 look at each individual case and decide.
25 The main purpose of your being
1 13
2 here today is for me to hear your side
3 of events, and get information from you
4 about certain things. That's my design
5 here. I think the best advice I could
6 give you, based upon my experience here,
7 the only time carpenters really get into
8 trouble with me is when they try to
9 deceive me or lie to me. And that if
10 they simply tell me what happened, given
11 what I believe to be reasonably unclear
12 rules that sometimes have been enforced,
13 sometimes haven't, and what I'm going to
14 be telling the judge is, sometimes no
15 one understands what they are supposed
16 to do; it is generally far better to get
17 out the truth and say what happened, and
18 do so clearly; certainly not to lie
19 about it.
20 If you lie about it and I find
21 out about it, you've got yourself
22 problem; the likelihood is it will be
23 seen as a sign of your willingness to
24 provide or let the truth come out.
25 Again, that's just my experience in the
1 14
2 time that's here, and my time may be
3 short.
4 As Mr. Lombardi may have told
5 you, I need to tell you, that the
6 District Council has moved before the
7 judge in essence that I be terminated as
8 a representative of the Independent .
9 Investigator, for reasons that may or
10 may not come out before the judge. In
11 good conscience I cannot tell you with
12 any certainty how much longer I will be
13 doing what I'm doing now, and whether or
14 not I will be finishing the
15 investigations, such as the one
16 involving you and your brother and
17 others.
18 I don't want you to be upset with
19 me if, all of a sudden, the judge waves
20 his hand and says, Mack, you're through,
21 and somebody else is going to start. My
22 own suspicion is that the judge will
23 permit me to conclude whatever work I've
24 begun. I cannot predict the judge. I
25 know the Government is moving for me to
1 15
2 continue for some time. The District
3 Council has what I call the "anybody but
4 Mack" syndrome, whatever that means.
5 I'll let them discuss that, if they
6 wish. And I have no way to predict
7 Judge Haight, what he is going to do or
8 how he is going to do it.
9 I think it is fair to you to let
10 you know that I could be basically
11 history in a matter of weeks, but I
12 intend to keep going, based upon my old
13 military service, hold until relieved, I
14 keep going until my boss tells me to
15 stop. That's where I sit.
16 A number of other factors which I
17 think, in fairness to you, I should go
18 through. Mr. Lombardi, as you know, has
19 represented your brother. He's also
20 represented other individuals who
21 appeared here from time to time. I have
22 absolute confidence in Mr. Lombardi's
23 ability to understand his job and his
24 obligation. And his job today, no
25 matter who he has represented or may
1 16
2 represent in the future, he has a job of
3 representing you, Stephen Arguelles,
4 today, to the very best of his ability,
5 no matter who it helps or hurts.
6 I have such confidence in Mr.
7 Lombardi that he understands that to be
8 his job, that if there should come a
9 time today where he feels he can no
10 longer advise you independently -- one
11 of the things that's going to come up
12 today, this dispatch in which Anthony
13 told you that you were supposed to go
14 on, and you went on another one; there
15 may not be a conflict there, but that
16 certainly is a matter that's going to
17 come up. And Mr. Lombardi, he has --
18 and the Court looks to him as an officer
19 of the Court, in the first instance, as
20 being able to make that type of decision
21 and assessing whether he can represent
22 you fairly and completely, because Judge
23 Haight will look to him, there will
24 never be an excuse for you to say, well,
25 I didn't talk to this guy, because
1 17
2 that's Mr. Lombardi's client. Your job
3 is to tell the truth, the whole truth,
4 and nothing but the truth, no matter who
5 it helps or hurts. Mr. Lombardi has got
6 to be able to assist you in doing that.
7 He cannot be in a position of saying,
8 don't tell him this or that, because it
9 hurts one of my other clients.
10 Knowing Mr. Lombardi, I'm sure he
11 has mentioned that subject to you, but I
12 want to make sure that you understand it
13 to some extent, and are willing to
14 proceed with his as your counsel today.
15 Are you?
16 MR. ARGUELLES: Yes.
17 MR. MACK: Fine.
18 There will be a series of records
19 that I will produce for you, I know you
20 have some records there, that I'm going
21 to ask you about in a few moments. I
22 can have them copied, if it's
23 appropriate. I don't know whether
24 you've seen the records I will furnish
25 you or not, but they will be marked as
1 18
2 exhibits. You should take your time in
3 looking at them, they raise certain
4 questions in my mind, and that's one of
5 the reasons you are here, to help me
6 figure out what they mean and what the
7 facts are.
8 One of the things that will come
9 up, will be whether or not the records
10 say what they look like they say. So
11 I'll say to you now, as I say to
12 everybody, if you feel, for instance,
13 that there's a contractor whose payroll
14 records will say something different
15 than how these appear, I will subpoena
16 them at your request. Because the judge
17 would be very unhappy with me if he
18 thought I was not giving you an
19 opportunity to present your side.
20 If at any time you need to take a
21 break today, you would like to talk to
22 Mr. Lombardi, or I have asked a question
23 that you don't understand, all you have
24 to do is tell me that, and I'll give you
25 that time and effort so that you feel
1 19
2 you may not -- this may not be the most
3 fun afternoon you've ever spent -- but I
4 hope you feel treated fairly. Is that
5 agreeable?
6 MR. ARGUELLES: Yes.
7 MR. MACK: Let me tell you who
8 else is here. I will be giving you
9 certain copies of these records, your
10 Benefit Fund reports, job referral
11 history, certain other records. If you
12 need to look at them and go through
13 them, I don't know what level of
14 preparation you've had, but I don't want
15 you guessing. Mr. Lombardi is probably
16 more expert than I in reading these
17 records. There are little
18 idiosyncrasies that, for instance, the
19 time clock for the job referral is three
20 hours off, because it is on California
21 time. Little things like that, you may
22 need to get familiar with, so you can
23 read what I'm reading and understand why
24 I'm asking the question.
25 These are records of the District