UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, COPY
RECEIVED
AUG 2 3 2004
Plaintiff, DOAR RIECK & MACK
90 CIV 5722
(CSH)
-against-
DISTRICT COUNCIL OF NEW YORK CITY
AND VICINITY OF THE UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, et.al.,
Defendants.
Independent. Investigator Deposition
August 5, 2004
4:14 o'clock p.m.
DEPOSITION of ROBERT DeFEO, taken by
the Independent Investigator, Walter Mack, Esq.,
pursuant to letter subpoena, held 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.
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1 2
2 APPEARANCE S:
3
4 DOAR RIECK & MACK
217 Broadway - 7th Floor
5 New York, New York 10007-2911
6 BY: WALTER MACK, ESQ.
Independent Investigator
7
8
LISA ZORNBERG, ESQ.
9 Assistant United States Attorney
U.S. Department of Justice
10 86 Chambers Street
New York, New York 10007
11
12
O'DWYER & BERNSTEIN, ESQS.
13 Attorneys for Union
52 Duane Street
14 New York, New York 10007
15 BY: GARY ROTHMAN, ESQ.
16
17 LAW OFFICES OF DINO J. LOMBARDI
Attorneys for Witness
18 52 Duane Street
New York, New York 10007
19
BY: DINO J. LOMBARDI, ESQ.
20
21
ALSO PRESENT:
22
Damani Sims
23 Lauren Anderson
24
25 *
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2 MR. MACK: We are on the record.
3 Basically, let me explain your
4 rights, as I do for every witness that
5 is here, and let me start, I want to
6 reiterate something I said before the
7 record started, which is, at any time
8 you need to talk to Mr. Lombardi, you
9 can do so, and you'll be given an
10 opportunity to do so.
11 I'm going through it all.
12 Everybody else except Mr. Sims has heard
13 this before. It is very important that
14 you listen. If you have questions for
15 me or anything that you need to have
16 explained, it is important that those
17 questions be answered.
18 Now, I am the Independent
19 Investigator, my name is Walter Mack. I
20 work for Federal Judge Charles S.
21 Haight, Jr.; and as such, I report to
22 him, and I don't work for the District
23 Council, I don't work for the United
24 States. I have a particular role that
25 has been described in an Order of the
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2 judge; it is a Consent Order, meaning
3 both that the Government, U.S.
4 Attorney's Office, Civil Division, and
5 the District Council have consented to
6 my appointment. But in essence, the
7 appointment is an Order of the Court
8 which appoints me and gives me certain
9 responsibilities and certain duties and
10 authority.
11 Some of those duties are report
12 writing, running the hotline, which we
13 run here, evaluating the system, the
14 anticorruption system, and other things.
15 Your attorney has a copy of the Order
16 and he may have discussed it with you or
17 not. But in essence, one of the duties
18 imposed upon me is to see whether or not
19 there have been violations of the job
20 referral rules or there has been
21 something called wrongdoing. I use
22 that -- wrongdoing is actually defined
23 in the Order.
24 My duties -- I'm not a
25 prosecutor, I do not have any authority
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2 to discipline, myself. My authority is
3 primarily to investigate and require
4 people such as yourself, and I would say
5 you are among many who have been here,
6 and I'm going to tell you in a moment
7 why you have been requested by me to be
8 here. In general, it is because in the
9 of running the hotline, therecourse
10 have been complaints about either your
11 jobsites or you, directly, which I will
12 tell you about, some time ago, and my
13 job is to select certain complaints,
14 I've selected quite a few, and to obtain
15 information and eventually write a
16 report about it, a copy of which would
17 go to the judge.
18 As I say, I think it is very
19 important to recognize I have no
20 authority to punish or discipline,
21 myself. The District Council retains
22 its right.
23 I'm going to go through the room
24 and explain who is here, and under what
25 circumstances, and what have you. But
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2 basically, my job is, I like to think,
3 as a truthseeker, meaning I have the
4 authority through the judge to obtain
5 documents not only from the District
6 Council, but basically from third
7 parties, contractors, R&J, for instance,
8 or any other organization. I have done
9 that from time to time, and do that from
10 time to time as I think appropriate.
11 So, I've written several reports
12 that have been submitted to the Court.
13 I will be writing a number more.
14 The reason there's a stenographer
15 here is because, being old and senile as
16 I am, I can't remember everything that
17 you and others say; and in order to have
18 the benefit of what is said and what
19 records are here, what have you,
20 frequently if I wrote the report, it is
21 weeks after the person appeared, I need
22 a transcript which is produced by the
23 stenographer, about what was my
24 question, what was the answer, what
25 actually happened. I find very
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2 frequently that everybody in the room
3 hears the same thing, but their actual
4 memory of it or description of it is
5 different.
6 So when I reach a formal,
7 relatively formal stage, which this is,
8 I require carpenters to come in and
9 testify under oath.
10 Let me say or go through what I
11 think are the most important things I
12 have to say tonight. I will be asking
13 you questions about many different
14 things; many other shop stewards and
15 others have been here, one way or the
16 other. My purpose is not to act as a
17 prosecutor. I'm not looking to bring
18 criminal cases or have arrests made. I
19 don't have that authority, first of all.
20 My goal, in many cases, is to simply
21 understand the system, as it is. I have
22 been around for a little bit over a year
23 and a half and I have found, and I don't
24 mean this to be critical of anyone, that
25 what has been explained to me happens on
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2 the jobsite, is not actually the way it
3 happens. So I look upon almost the
4 majority of my work as simply talking
5 and obtaining information from the
6 people who know what actually happens on
7 a jobsite, and describe it.
8 You will have an opportunity as
9 time goes on, because I may ask
10 questions about your opinion, is this
11 working, is it not working; because I've
12 already have started to work towards
13 various questions I have. So, I think
14 that the fairest and the kindest way to
15 look at the reason you're here today is,
16 certainly, yes, there have been
17 complaints, to be precise about things
18 which concern you, but even more
19 important than that, because of your
20 experience and what you've done, I think
21 you can assist me in understanding what
22 happens with particular contractors and
23 particular jobsites.
24 So, I would like to try to put
25 you as much at ease as I can. There's
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2 one thing, however, that is really
3 crucial to your being here today, and
4 I've said this before, I say it to every
5 carpenter who appears here, so you're
6 not being -- I may choose different
7 words, but you're getting the same
8 message that every other carpenter who
9 appears here gets, which is the
10 following:
11 You will be placed under oath
12 shortly. The way that you and I can
13 become adversaries is only this way, and
14 that is, that you intentionally tell me
15 a lie, that you seek to deceive me or
16 fail to provide accurate information
17 upon my questioning. And what I've said
18 to every carpenter who has appeared
19 here, and now I think we are up to 25 or
20 30, I haven't counted them, I say the
21 same thing: I'm not here to try to make
22 life difficult for you, what I'm here
23 for is to get facts and find out things
24 so that I can write an accurate report.
25 I use the word "beg." The reason
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2 I use the word "beg" is because I've had
3 carpenters sit where you sit and know
4 about evidence I have, watch videotapes
5 that people that work with me produced,
6 and still lie to me. So what I say to
7 them, I want to say this to you, and I
8 try to say it the same way to everyone:
9 That basically, if you lie to me, if you
10 intentionally seek to deceive me by
11 telling me something which you know to
12 be untrue, I will make a reference to
13 the U.S. Attorney's Office for a
14 criminal prosecution for perjury, which
15 is lying under oath, or obstruction of
16 justice, which means that you have
17 intentionally sought to prevent me from
18 finding the truth.
19 I can't bring those cases.
20 Believe me, I don't -- it is my hope for
21 every carpenter that that never happens.
22 But there have been over ten carpenters
23 who have lied under oath, in my opinion,
24 and I will be making references to the
25 judge that they be prosecuted for lying
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2 under oath.
3 And so I think the most important
4 thing I have to say in terms of advice
5 and counsel, I'm sure your lawyer said
6 this as well, one, you need to be
7 absolutely candid with your lawyer
8 because your lawyer cannot really
9 effectively represent you if you deny
10 that individual the right information.
11 I'm going to ask some pretty broad
12 questions. I'm going to ask questions
13 which are designed to find out about
14 concerns that I have or issues that I
15 have. And so, I use the word "beg."
16 beg of you, whatever your concerns are,
17 and what have you, tell the truth and do
18 it to the very best of your ability.
19 What I say, which is pretty much
20 my policy now, and I think I pretty much
21 said it, and not everybody in the room
22 agrees with that policy, but my policy
23 is, if I feel that a carpenter, shop
24 steward, journeyman, or apprentice, has
25 in fact told me the truth, even though
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2 some of the things they tell me are not
3 consistent with union rules or not
4 consistent with their obligation as
5 carpenters, such as keeping people off
6 the books or receiving cash -- I'm
7 giving examples of types of things which
8 have occurred and do occur on jobsites
9 in the City, and some carpenters have
10 admitted, even if I know that some of
11 those can be violations of the criminal
12 laws, tax laws, official record laws,
13 what have you, it is my intention not to
14 recommend any type of criminal action
15 against a shop steward or a journeyman
16 or an apprentice who tells me the truth
17 the first time through.
18 So in essence, what I'm saying,
19 and there may be lawyers here, which
20 we'll go through, who may disagree with
21 that view, but my emphasis is fining out
22 the facts accurately and truthfully.
23 The other side of that is, having
24 said that, and having said that that's
25 my intention to recommend, that if that
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2 same individual does not tell me the
3 truth, does in fact intend to deceive
4 and not be accurate in what they have to
5 say, I will recommend, if I feel I have
6 evidence to that effect, that they be
7 considered for prosecution for perjury
8 or obstruction of justice.
9 Let me try to clarify some of
10 these things. One, I'm not a
11 prosecutor. Two, I work for the judge.
12 The judge can say that guy Mack is off
13 the wall and I don't basically agree
14 with him. I work for him, and I think I
15 am taking a position that he would agree
16 with, but I could be wrong. In essence,
17 he could say: Well, you know, he
18 received $150,000 in cash for keeping
19 people off the books for a period of
20 time, and that is worthy of a criminal
21 sanction. Okay? So I can't promise you
22 the judge would agree with me.
23 I would say this. That the U.S.
24 Attorney's Office, Criminal Division,
25 who is not represented here -- they have
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2 two divisions in the U.S. Attorney's
3 Office, and I'll plain that more clearly
4 later, but in essence, people who are
5 charged with enforcing the criminal
6 laws, they could go to the judge and
7 say, listen, Mack is a softie; he's
8 giving away things that shouldn't be
9 given away, and we think he or she
10 should be prosecuted, what have you.
11 Your attorney can help you with some of
12 these concerns.
13 The bottom line is, though, don't
14 lie under oath. It's really as simple
15 as that, because I'm made it very clear
16 to everyone, that if you do and I can
17 prove it, I'm going to refer it. This
18 is a process designed to get the truth;
19 not designed to put carpenters in jail
20 and expose them to criminal sanction.
21 You know, that's the way I see it.
22 Basically, I have different allegations,
23 I have complaints. I would like to
24 think that when a carpenter takes an
25 oath to tell the truth, the whole truth,
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2 and nothing but the truth, that they
3 will honor that oath, because I don't
4 think it is that difficult a concept.
5 Some other things that are
6 important to you here, because this is
7 not a District Council proceeding,
although Gary Rothman from the District
9 Council is present here today, and is
10 going to be invited and does participate
11 as lawyers do all the time, this is a
12 proceeding being conducted by me and
13 under my office, under my authority
14 under the Order. For that reason, you
15 have, while you're here, what is known
16 as a Fifth Amendment right. That is, if
17 I ask you a question which you think
18 would tend to incriminate you personally
19 for any reason, and this is something
20 that has occurred here and I want to
21 make this point as clearly as I can, if
22 you feel the answer to the question
23 would tend to incriminate you,
24 incriminate you, you have the right to
25 assert the Fifth Amendment, and in a way
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2 to simply say, Mr. Mack, with all due
3 respect, I refuse to answer that
4 question, or I don't want to answer that
5 question because it would tend to
6 incriminate me.
7 My suggestion is that if there's
8 a question that I ask, because I'm going
to ask some pretty broad questions, you
10 should think about it, you should take a
11 break, talk to your lawyer, discuss the
12 subject. If you have no concern, hey, I
13 got no problem, so be it. If there's a
14 question I ask which you think might
15 tend to incriminate you, no matter what
16 I've said, all right, -- I'm saying one
17 thing, but the Government might end up
18 feeling differently about the subject.
19 So there are risks there.
20 I'm happy you have a lawyer here,
21 to be perfectly honest. I think having
22 a lawyer who is comfortable with the
23 topics and subjects I'm talking about,
24 is a big help to a witness, so they do
25 not stray and make a mistake. So you
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2 have, and have throughout the
3 proceeding, a Fifth Amendment privilege
4 to say: I just don't want to answer
5 that question; that's the gist of it.
6 Because that is civil proceeding, I can
7 say, well, you know, I can choose to
8 draw some inference from that, some
9 meaning, you know, like if there's a
10 complaint about Robert DeFeo on this
11 jobsite about doing X and Y, and you
12 don't discuss that jobsite with me, I
-13 can choose, if I wish, to draw a
14 conclusion about that jobsite, but it is
15 not certain that I will. And as a
16 general rule I'm pretty careful about --
17 I come from a process where the Fifth
18 Amendment doesn't give you an awful lot
19 of data. Those are things that your
20 attorney can discuss with you, and with
21 me. But I would want you to know that
22 taking the Fifth Amendment does have
23 some implication with me, because it
24 could permit me to say, well, I can't
25 find out what happened here during this
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2 circumstances, and as a result of that,
3 I'm going to believe this evidence,
4 because the shop steward, the man most
5 knowledgeable about that jobsite, took
6 the Fifth Amendment.
7 I should also say, and I will
8 leave to the District Council to say it,
9 that there may be some consequences at
10 the District Council for a shop steward
11 taking the Fifth. I haven't been able
12 to figure out exactly what those
13 consequences could be, because I think
14 there are policy issues that the
15 District Council may be working their
16 way through. That's one of the reasons
17 that I have invited Mr. Rothman, as I
18 always do, someone from the District
19 Council's law firm, to be present so
20 they can speak for the District Council
21 if they choose to do so. It is entirely
22 up to them.
23 Let me cover a couple of other
24 areas. I'm going to go through this
25 process, some of these concepts may be
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