581 F. Supp. 279, *; 1984 U.S. Dist. LEXIS 19663, **;
115 L.R.R.M. 2829
UNITED STATES OF AMERICA, Plaintiff, v. LOCAL 560,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF
AMERICA, et al., Defendants
Civil Action No. 82-689
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
581 F. Supp. 279; 1984 U.S. Dist. LEXIS 19663; 115 L.R.R.M.
2829
February 8, 1984
SUBSEQUENT HISTORY: [**1]
As Amended March 8, 1984; Affirmed and
Remanded December 26, 1985.
CORE TERMS: membership,
business agent, appointment, murder, executive board, labor organization,
racketeering, convicted, appointed, conspiracy, indicted, pattern of
racketeering activity, intimidation, election, extortion, peace,
secretary-treasurer, counterfeiting, payoff, predicate, indirectly, indictment,
incumbent, salary, incarcerated, sentenced, incarceration, climate, leader,
disappearance
COUNSEL: W. Hunt
Dumont, United States Attorney, for the District of New Jersey, By: Robert C.
Stewart, Thomas L. Weisenbeck, Assistant U.S. Attorney, Leopold Laufer, Special
Attorney, United States Department of Justice, Newark, New Jersey, For
Plaintiff.
Edward A. Cohen, Esq., Schneider, Cohen, Solomon &
DiMarzio, Jersey City, New Jersey, For defendants Local 560 and the Severance
Pay Plan.
Harvey Weissbard, Esq., West Orange, New Jersey, For
defendants Provenzano, Sheridan, Dildine, Reynolds, Sciarra and Jaronko.
Herbert New, Esq., Brenner, New & Brenner, Livingston, New Jersey,
For defendant Trucking Employees of North Jersey Welfare Fund.
Mr.
Stephen Andretta and Mr. Gabriel Briguglio, Pro Se.
JUDGES: Ackerman, District Judge.
OPINIONBY: ACKERMAN
OPINION: [*282] ACKERMAN, District Judge.
John L. Lewis,
former president of the Congress of Industrial Organizations and the United Mine
Workers once said that "Labor, like Israel, has many sorrows."
A careful
review of the evidence in this unprecedented case reveals the verity of that
observation.
It is not a pretty story. Beneath the relatively sterile
language of [**2] a dry legal opinion is a
harrowing tale of how evil men, sponsored by and part of organized criminal
elements, infiltrated and ultimately captured Local 560 of the International
Brotherhood of Teamsters, one of the largest local unions in the largest union
in this country.
This group of gangsters, aided and abetted by their
relatives and sycophants, engaged in a multifaceted orgy of criminal activity.
For those that enthusiastically followed these arrogant mobsters in their
morally debased activity there were material rewards. For those who accepted the
side benefits of this perverted interpretation of business unionism,
see J. Hutchinson, The Imperfect Union p. 371, (1970), there
was presumably the rationalization of "I've got mine, why shouldn't he get his."
For those who attempted to fight, the message was clear. Murder and other forms
of intimidation would be utilized to insure silence. To get along, one had to go
along, or else.
It is important to state what the evidence in this case
does and does not show.
It shows that a trade union which is by origin
and nature a voluntary organization is susceptible to the malicious machinations
of others, as Congress perceived [**3] in
enacting the Landrum-Griffin and RICO Acts.
It does not demonstrate that
unions or union officials in general are riddled with racketeering or
corruption. Most authorities are convinced that the overwhelming number of
unions and union officials are "untroubled by the problem of corruption."
Id. Crooks and racketeers are anathema to a significant portion of the
trade union movement. See id.; D. Dubinsky & A. Raskin, David
Dubinsky: A Life With Labor (1977); P. Jacobs, The State of the
Unions (1963). See also "The RICO Civil Fraud Action in Context:
Reflections on Bennett v. Berg", 58
Notre Dame L.Rev. 237, 303 n.170 (1982).
As Professor Hutchinson
observed in his book The Imperfect Union -- A History of Corruption in
American Trade Unions (1970) at p. 7-8:
Corruption owes little more to immoral union leaders than it does
to predatory employers who, throughout the history of American business, have
sought by cheating and violence to circumvent the strictures of competition,
unionization and the law. It is a companion of the corruption in politics and
law enforcement which for generations has characterized some of the major
cities of the nation, [**4] sheltering the
guilty and embroiling the innocent in crime. It owes a debt to the insanity of
Prohibition and its enduring legacy of organized defiance of the law. It
thrives in the procedural jungle of the American criminal law. It stems from
the social conditions of the cities -- from the tensions of an immigrant
society, the customs of racial discrimination and ethnic isolation, the
miseries of the slums and the frustrations of the underprivileged, the
ignorance of the poor and the indifference of the rich. It has, finally, drawn
strength from a public philosophy which, in electing for the competitive
society, has tended to trumpet only its virtues, according either praise or
tolerance to the victors in a battle lightly burdened with
rules."
Applying these precepts and the law applicable to this case
I find that the record clearly demonstrates that the Provenzano brothers
(Anthony, Nunzio and Salvatore) and their group betrayed the membership of Local
560.
[*283] David Dubinsky, former
President of the International Ladies Garment Workers Union stated in his
autobiography that "racketeering is the cancer that almost destroyed the
American trade-union movement." D. Dubinsky [**5]
& A. Raskin, supra. The metaphor of disease is apt. See P.
Johnson, Modern Times p. 102 (1983). For reasons set forth below, I
have determined in this case, in accordance with law and to secure justice, to
use a judicial scalpel to excise this malignancy from this union and its
members.
To do any less would be to ignore the laws of the land and do a
disservice to the thousands of labor leaders who earn their daily bread by
honestly striving to improve the wages, hours and working conditions of their
members.
This is an action brought pursuant to the Racketeer Influenced
and Corrupt Organization Act (RICO), 18
U.S.C. § 1961 et seq. n1 Plaintiff United States alleges, inter
alia, that Local 560 of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Local 560), together with its
Welfare and Pension Funds (Funds) and its Severance Pay Plan (Plan), n2 has
become, through the actions of the individual defendants, a "captive labor
organization." The United States seeks, first, the appointment of a receiver or
trustee to serve in the capacity of the Local 560 Executive Board until such
time as the membership can freely nominate [**6]
and elect new officers. The complaint also seeks injunctive relief against
defendants Salvatore Provenzano, Joseph Sheridan, Josephine Provenzano, J. W.
Dildine, Stanley Jaronko, Thomas Reynolds, Sr., and Michael Sciarra, inter
alia barring them from union office until such time as a democratic
election of officers by the membership may be held. Finally, the complaint seeks
injunctive relief against defendants Anthony Provenzano, Nunzio Provenzano,
Stephen Andretta and Gabriel Briguglio, inter alia barring them from
any further contacts with Local 560.
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n1 Chapter 96 of
Title 18, 18
U.S.C. §§ 1961-1968, was added to that title by Title IX of the Organized
Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 941.
n2 The Funds
have been merged and split several times, the two most recent events being the
March 1, 1974 separation of Locals 617 and 641 from the Trucking Employees of
North Jersey Welfare Fund (and Pension Plan) and the May 4, 1977 merger of the
North Jersey Fund and Plan with that of the Trucking Employees of Passaic and
Bergen Counties.
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The
complaint charges that the "Local 560 Enterprise" n3 is an enterprise within the
meaning of 18
U.S.C. § 1961(4). n4 It further alleges that the individual defendants are
associated together under the leadership of defendant Anthony Provenzano as the
"Provenzano Group," and that this Group conspired, in violation of 18
U.S.C. § 1962(d), n5 to violate, and actually did violate, 18
U.S.C. § 1962(b) and (c). n6
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n3 The complaint refers
to the nominal defendants (Local 560, the Fund and the Plan) collectively as the
"Local 560 Enterprise".
n4 18
U.S.C. § 1961(4) provides:
"enterprise" includes any individual, partnership, corporations,
association, or other legal entity, and any union or group of individuals
associated in fact although not a legal entity . . . .
n5 18
U.S.C. § 1962(d) provides:
(d) It shall be unlawful for any person to conspire to violate any
of the provisions of subsections (a), (b), or (c) of this
section.
n6 18
U.S.C. § 1962(b) and (c) provide:
(b) It shall be unlawful for any person through a pattern of
racketeering activity or through collection of an unlawful debt to acquire or
maintain, directly or indirectly, any interest in or control of any enterprise
which is engaged in, or the activities of which affect, interstate or foreign
commerce.
(c) It shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a pattern of
racketeering activity or collection of unlawful debt.
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[**8]
Specifically, paragraph 12(a) of
the complaint alleges that the Provenzano Group, aided and abetted by past and
present members of the Executive Board of Local 560 (including defendants
Salvatore Provenzano, Joseph Sheridan, Josephine Provenzano, J. W. Dildine,
Thomas Reynolds, [*284] Sr., Michael Sciarra,
and Stanley Jaronko) unlawfully acquired and maintained, directly and
indirectly, an interest in and control of the Local 560 Enterprise through a
pattern of racketeering activity in violation of § 1962(b) of the RICO Act. This
racketeering activity was alleged to have involved murder and the systematic use
of extortion, with the latter allegedly consisting of, according to the
complaint, "the wrongful use of actual and threatened force, violence and fear
of physical and economic injury in order to create within Local 560 a climate of
intimidation which induced the members thereof to consent to the surrender of
certain valuable property in the form of their union rights as guaranteed by the
provisions of Sections 157 and 411 of Title 29 of the United States Code . . .
." n7
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n7 29
U.S.C. § 157 is section 7 of the Taft-Hartley Act, while 29
U.S.C. § 411 was enacted as Title I of the Labor Management Reporting and
Disclosure Act of 1959 (LMRDA) and is referred to as the "Bill of Rights of
Members of Labor Organizations." Section 411 provides:
(a)(1) Equal rights. -- Every member of a labor organization shall
have equal rights and privileges within such organization to nominate
candidates, to vote in elections or referendums of the labor organization, to
attend membership meetings, and to participate in the deliberations and voting
upon the business of such meetings, subject to reasonable rules and
regulations in such organization's constitution and bylaws.
(2)
Freedom of speech and assembly. -- Every member of any labor organization
shall have the right to meet and assemble freely with other members; and to
express any views, arguments, or opinions; and to express at meetings of the
labor organization his views, upon candidates in an election of the labor
organization or upon any business properly before the meeting, subject to the
organization's established and reasonable rules pertaining to the conduct of
meetings: Provided, That nothing herein shall be construed to
impair the right of a labor organization to adopt and enforce reasonable rules
as to the responsibility of every member toward the organization as an
institution and to his refraining from conduct that would interfere with its
performance of its legal or contractual obligations.
(3) Dues,
initiation fees, and assessments. -- Except in the case of a federation of
national or international labor organizations, the rates of dues and
initiation fees payable by members of any labor organization in effect on
September 14, 1959 shall not be increased, and no general or special
assessment shall be levied upon such members, except --
(A) in the
case of a local labor organization, (i) by majority vote by secret ballot of
the members in good standing voting at a general or special membership
meeting, after reasonable notice of the intention to vote upon such question,
or (ii) by majority vote of the members in good standing voting in a
membership referendum conducted by secret ballot; or
(B) in the case
of a labor organization, other than a local labor organization or a federation
of national or international labor organizations, (i) by majority vote of the
delegates voting at a regular convention, or at a special convention of such
labor organization held upon not less than thirty days' written notice to the
principal office of each local or constituent labor organization entitled to
such notice, or (ii) by majority vote of the members in good standing of such
labor organization voting in a membership referendum conducted by secret
ballot, or (iii) by majority vote of the members of the executive board or
similar governing body of such labor organization, pursuant to express
authority contained in the constitution and bylaws of such labor organization:
Provided, That such action on the part of the executive board
or similar governing body shall be effective only until the next regular
convention of such labor organization.
(4) Protection of the right to
sue. -- No labor organization shall limit the right of any member thereof to
institute an action in any court, or in a proceeding before any administrative
agency, irrespective of whether or not the labor organization or its officers
are named as defendants or respondents in such action or proceeding, or the
right of any member of a labor organization to appear as a witness in any
judicial, administrative, or legislative proceeding, or to petition any
legislature or to communicate with any legislator: Provided,
That any such member may be required to exhaust reasonable hearing procedures
(but not to exceed a four-month lapse of time) within such organization,
before instituting legal or administrative proceedings against such
organizations or any officer thereof: And provided further,
That no interested employer or employer association shall directly or
indirectly finance, encourage, or participate in, except as a party, any such
action, proceeding, appearance, or petition.
(5) Safeguards against
improper disciplinary action. -- No member of any labor organization may be
fined, suspended, expelled, or otherwise disciplined except for nonpayment of
dues by such organization or by any officer thereof unless such member has
been (A) served with written specific charges; (B) given a reasonable time to
prepare his defense; (C) afforded a full and fair hearing.
(b) Any
provision of the constitution and bylaws of any labor organization which is
inconsistent with the provisions of this section shall be of no force or
effect.
The Supreme Court has recently noted that the emphasis of §
411 is "on the rights of union members to expression without fear of sanctions
by the union, which in many instances could mean loss of union membership and in
turn loss of livelihood." Finnegan
v. Leu, 456 U.S. 431, 102 S. Ct. 1867, 1870, 72 L. Ed. 2d 239 (1982).
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The particular acts
of the defendants which allegedly created the climate of intimidation [*285] which in turn allegedly induced the surrender of
the members' rights are set out as subparagraphs (1) through (28) n8 of
paragraph 12 (a). These alleged acts are:
(1) the June 1961 murder of Anthony Castellitto; (2) the
August 1961 appointment of Salvatore Provenzano to the position of Trustee
formerly occupied by Castellitto; (3) the September 1961 appointment of
Salvatore Briguglio -- the alleged murderer of Castellitto -- to the position
of Business Agent; (4) the February 1963 appointment of Nunzio Provenzano to
the position of Business Agent following his January 1963 conviction for
extortion; (5) the May 1963 murder of Walter Glockner; (6) the 1964
appointment of Robert A. Luizzi to the position of Business Agent in spite of
a record of criminal convictions; (7) the May 1967 appointment of Luizzi to
the position of Trustee; (8) the February 1969 appointment of Salvatore
Briguglio to position of Business Agent following completion of a term of
imprisonment for extortion; (9) the April 1969 appointment of Nunzio
Provenzano to the position of clerk following completion [**10] of a term of imprisonment for extortion; (10)
the 1970 appointment of Nunzio Provenzano to the position of Business Agent;
(11) the 1971 appointment of Thomas Reynolds, Sr. to the position of Business
Agent in spite of a record of criminal activity; (12) the 1972 appointment of
Nunzio Provenzano to the position of Fund Trustee; (13) the 1972 appointment
of Salvatore Briguglio to the position of Fund Trustee; (14) the allowance of
frequent visitations by Armand Faugno and Thomas Andretta to the offices of
Local 560; (15) the January 1963 appointment of Nunzio Provenzano to the
position of Secretary-Treasurer; (16) the 1973 appointment of Reynolds to the
position of Fund Trustee; (17) the 1974 resumption of duties as Business Agent
by Salvatore Briguglio following completion of a term of imprisonment for
counterfeiting; (18) the 1974 appointment of Luizzi to the position of Fund
Trustee; (19) the November 1975 appointments of Anthony and Nunzio Provenzano
to the positions of Secretary-Treasurer and President, respectively, in spite
of a record of convictions for extortion; (20) the February 1977 appointment
of Reynolds to the position of Trustee; (21) the July 1978 appointment of
Josephine [**11] Provenzano to the position of
Secretary-Treasurer following Anthony Provenzano's conviction for the
Castellitto murder; (22) the July 1981 appointment of Salvatore Provenzano to
the position of President following Nunzio Provenzano's forced resignation as
a condition of bail on a labor racketeering conviction; (23) the Executive
Board's failure to recover monies wrongfully converted by Anthony Provenzano;
(24) the retention of Marvin Zalk as Fund Administrator in spite of payments
accepted by him from an insurance company representative during the 1950's;
(25) the retention of Ralph Torraco as the Fund's independent certified public
accountant in spite of his federal indictment for systematically overbilling
the Fund; (26) the extortion of contributions to the defense funds of the
Provenzanos and Michael Sciarra from union members; (27) the 1981 appointment
of Luizzi to the position of Business Agent; and (28) associations by some of
the defendants with Frank "Funzi" Tieri and Matteo Alfredo Ianniello, reputed
to be organized crime members.
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n8
Subparagraphs 12(a)(26), (27) and (28) were added to the complaint upon
application by the plaintiff for leave to file an amended complaint pursuant to
Fed.R.Civ.P. 15(a), which application was granted on September 20, 1982.
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[*286] Paragraph 12(b) of the complaint alleges that the
Provenzano Group, aided and abetted by various others of the individual
defendants, "unlawfully did conduct and participate, directly and indirectly, in
the conduct of the affairs of the Local 560 Enterprise through a pattern of
racketeering activity . . ." in violation of § 1962(c) of the RICO Act. The
"predicate acts" which are alleged to have constituted this pattern of
racketeering activity are set out as subparagraphs (1) through (5) or paragraph
12(b). These alleged acts are: (1) the extortion of $17,100 from Walter Dorn and
his company (Dorn Transport, Inc. of Rensselaer, New York) in return for "labor
peace; (2) the wrongful conversion by defendant Anthony Provenzano, aided and
abetted by successive defendant members of the Local 560 Executive Board, of
approximately $223,785 in Local 560 funds "by means of false and fraudulent
pretenses, representations, and promises, and pursuant to a scheme and artifice
to defraud . . .;" (3) the wrongful receipt by Provenzano Group members of
payments, loans and other things of value from certain employers (Interocean
Services, Inc. and Di-Jub Leasing, Inc.) in exchange for [**13] "labor peace"; (4) the unlawful receipt by
defendant Anthony Provenzano, aided and abetted by Salvatore Briguglio, of
certain fees, kickbacks, gifts or things of value in the form of certain Florida
real estate because of, and with intent to be influenced with respect to, his
actions and decisions relating to the Benefit Fund; and (5) the wrongful receipt
by defendant Nunzio Provenzano, together with Irving Cotler and others, as
associates of the Provenzano Group, of "labor peace" payments by certain
employers, specifically Pacific Intermountain Express Company, Mason and Dixon
Lines, Inc., T.I.M.E. -- DC, Inc. and Helms Express.
Finally, the
initial portion of paragraph 12 of the complaint contains the government's §
1962(d) allegations. It charges that defendants Anthony Provenzano, Nunzio
Provenzano, Stephen Andretta, Thomas Andretta, Gabriel Briguglio and others
associated with the Provenzano Group unlawfully did conspire together to violate
§ 1962(b) and (c) with the end of infiltrating, dominating and exploiting the
Local 560 Enterprise.
In its demand for relief, the government requests:
(1) that the Provenzano Group be enjoined from having any dealings, directly or
indirectly, [**14] with any officer or employee
of the Local 560 Enterprise or of any labor organization or employee benefit
plan as defined in Title 29 about any matter which relates directly or
indirectly to the business affairs of the Local 560 Enterprise or other such
labor organization or benefit plan; (2) that all current Local 560 Executive
Board members -- Salvatore Provenzano, Joseph Sheridan, Josephine Provenzano, J.
W. Dildine, Thomas Reynolds, Sr., Michael Sciarra and Stanley Jaronko -- be
enjoined from acting in any official capacity for or on behalf of the Local 560
Enterprise; (3) that the court appoint one or more trustees to discharge all
duties and responsibilities of the Executive Board of Local 560 and such other
tasks as the court may direct; (4) that at an appropriate time the trustee be
instructed to conduct, with the assistance of the Department of Labor and the
Department of Justice, a general election in order to select officers for the
Executive Board of Local 560 -- the election to be structured in such a way as
to ensure that the nomination, primary and final selection processes will not be
vulnerable to forms of intimidation and will reflect the decision, the
government [**15] requests, of at least eighty
percent of the members who are eligible to vote; (5) that the court permanently
enjoin all individual defendants herein from having any future dealings of any
nature whatsoever, directly or indirectly, with any officer, agent,
representative or employee of the Local 560 Enterprise or any other labor
organization.
There have been a number of proceedings in this matter
prior to trial which merit mention. First, a consent order was entered on June
15, 1982 approving the terms of a stipulation of settlement between the
plaintiff United States and defendant Anthony Provenzano, inter alia
prohibiting the latter from "any form of [*287]
association with any enterprise (within the meaning of Section 1961 of Title 18
of the United States Code), which enterprise seeks, directly or indirectly, to
dominate, control, conduct or otherwise influence the affairs of any labor
organization or any employee benefit plan (within the meaning of Title 29 of the
United States Code)." A similar consent order was entered on September 15, 1982
with regard to defendant Nunzio Provenzano, and, on January 14, 1983, with
regard to defendant Thomas Andretta.
Finally, on November [**16] 1, 1982 I denied a motion brought by defendant
Local 560 pursuant to Fed. R. Civ. P. 12(b) (6) to dismiss paragraph 12(a) of
the complaint for failure to state a cause of action. United
States v. Local 560, 550 F. Supp. 511 (D.N.J. 1982). Following a review
of the legislative history of both the Hobbs Act, 18
U.S.C. 1951, and of the LMRDA, and relying on United
States v. Boffa, 688 F.2d 919 (3d Cir. 1982), I concluded that the
rights guaranteed to union members by the LMRDA's Bill of Rights, 29
U.S.C. § 411, are intangible rights which fall within the ambit of the Hobbs
Act. I further concluded that the Hobbs Act as construed in this manner was not
impliedly repealed by the enactment of the LMRDA, and that conduct which is
regulated or proscribed by the LMRDA may also violate RICO. n9 RICO, like the
LMRDA, is, I determined, legislation intended to supplement the panoply of
remedies designed to reach racketeering. Id. at 524-25.
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- -
n9 I specifically determined that § 530 of the LMRDA does not
prohibit the same conduct prohibited under the Hobbs Act. Since allegations of
Hobbs Act violations serve as predicate offenses in this action, I found no
merit in defendant's argument that paragraph 12(a) in essence made § 530 a
predicate crime under RICO in violation of that statute's express definition of
"racketeering activity". 550
F. Supp. at 524.
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By order dated March 25, 1982, my former
colleague the Honorable H. Curtis Meanor directed that the plaintiff's request
for preliminary and final injunctive relief be merged pursuant to Fed. R. Civ.
P. 65(a)(2), and that the case proceed to final judgment. On May 20, 1982, this
matter was reassigned to me from Judge Meanor.
The non-jury trial of
this case began on January 25, 1983. The trial encompassed fifty-one days of
testimony, lasting through May 17, 1983, the testimony comprising nearly 8,000
pages in transcript form. I have carefully considered the live testimony, the
exhibits and deposition testimony admitted at trial, and the arguments of
counsel. This memorandum constitutes the court's decision, and includes the
court's findings of fact and conclusion of law pursuant to Fed.R.Civ.P. 52(a).
I.
THE PARTIES
Defendant Local 560 is an unincorporated
labor association which was originally chartered on May 11, 1911 by the
International Brotherhood of Teamsters. It has its offices at 707 Summit Avenue
in Union City, New Jersey. As of May, 1982, it had approximately 10,000 members
employed by approximately 425 companies in the metropolitan New Jersey -- New
York area. As [**18] such it is a labor
organization engaged in an industry affecting interstate commerce within the
meaning of Section 402 of Title 29 of the United States Code.
Under its
constitution, seven elective officers are charged with managing the day to day
affairs of Local 560. These officers are: a president, a vice-president;
recording secretary; secretary-treasurer; and three trustees. These seven
officers together constitute Local 560's Executive Board. This Executive Board
is generally authorized and empowered to conduct and manage the affairs of the
organization between membership meetings.
Defendant Trucking Employees
of North Jersey Welfare Fund, Inc. and its Pension Account are located in Local
560's building in Union City. The funds were and are today welfare and pension
benefit plans within the meaning of Section 1002 of Title 29 of the United
States Code. As such they are subject to the provisions of the [*288] Welfare and Pension Plans Disclosure Act (prior
to approximately September 2, 1974) and the Employee Retirement Income Security
Act (after approximately September 2, 1974).
As noted previously, two
other benefit plan entities were merged into the Funds during May [**19] of 1977. These were formerly known as the Trucking
Employees of Passaic and Bergen Counties Welfare Fund and the Trucking Employees
of Passaic and Bergen Counties Pension Fund. Both of these benefit plans were
subject to the provision of the Welfare and Pension Plans Disclosure Act at the
time of their merger into the Funds.
The Funds are controlled by a
governing body which is composed of four trustees appointed by the Executive
Board of Local 560 and four trustees appointed by two employer associations
whose member companies have collective bargaining agreements with Local 560. The
current employee trustees include defendant Salvatore Provenzano, defendant
Stanley Jaronko, and defendant Joseph Sheridan. n10
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n10
Thomas Reynolds, Sr. was a trustee of the Fund as of the time this litigation
commenced and for a period after the trial began, but has since resigned.
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The Local 560 Officers and Employees Severance Pay Plan is
also operated out of Local 560's offices. It is an employee benefit plan within
the meaning [**20] of Section 1002 of Title 29
of the United States Code in that it provides severance pay benefits to the
employees of Local 560. The current trustees of the Plan are Salvatore
Provenzano and Josephine Provenzano.
A brief description of each of the
remaining nine individual defendants may be useful at this point. First,
Salvatore "Sam" Provenzano has been the President of Local 560 since
approximately July of 1981, when the Executive Board appointed him to that
position. n11 Prior to that time he had been employed by Local 560 as a Business
Agent between approximately November 10, 1959 and August 8, 1961; as a Trustee
between approximately August 8, 1961 and November of 1965, and again between
approximately January and May of 1966; as President between approximately May of
1966 and November of 1975; and as the Vice-President between approximately
December of 1975 and July of 1981.
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n11 This appointment
was presumably made pursuant to the Executive Board's authority to fill officer
vacancies which occur during the term of an office.
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Joseph Sheridan has been the
Vice-President of Local 560 since approximately July of 1981, when the Executive
Board appointed him to that position. Prior to that time he had been a Business
Agent between approximately July 7, 1972 and September 1, 1978, and thereafter a
Trustee between approximately September 1, 1978 and July of 1981.
Josephine Provenzano has been the Secretary-Treasurer of Local 560 since
approximately June of 1978, when the Executive Board appointed her to that
position. Prior to that time, she had been employed by Local 560 as an office
worker from 1976 until the time of her appointment. Josephine Provenzano is the
daughter of defendant Anthony Provenzano and the niece of defendants Salvatore
and Nunzio Provenzano.
J. W. Dildine has been the Recording Secretary of
Local 560 since approximately 1968, when the Executive Board appointed him to
that position. Prior to that time he had been employed by Local 560 as a
Business Agent between approximately 1963 and 1968.
Thomas Reynolds, Sr.
has been a Trustee of Local 560 since February 9, 1977. Before that time, he was
employed by Local 560 as a Business Agent between September 24, 1970 and
February 9, 1977. [**22] He is the
brother-in-law of defendant Nunzio Provenzano and the father of former Business
Agent Andrew Reynolds.
Michael Sciarra has been a Trustee of Local 560
since May 28, 1981. Prior to that time he was employed by Local 560 as a
Business Agent between July 7, 1972 and September 30, 1976, and again between
December of 1977 and May 28, 1981. Sciarra [*289] has been a member of Local 560 since
approximately 1954.
Stanley Jaronko has been a Trustee of Local 560
since July 13, 1981. Before that time, he served Local 560 in the capacity of
Business Agent between December 12, 1977 and February 19, 1981, and as a Trustee
between February 19 and May 28, 1981.
Stephen Andretta, who testified at
trial pursuant to a grant of use immunity under 18
U.S.C. §§ 6002 and 6003, was a Business Agent for Local 560 between
approximately August of 1973 and October of 1976. His membership in Local 560
dates from the early 1950's, and he held the position of shop steward for Local
560 at Eazor Express Co. between the mid-1960's and August of 1973, and again
between approximately October of 1976 and 1980.
The evidence at trial
indicated that Stephen Andretta had known Salvatore Briguglio [**23] for over twenty years as of the early 1970's.
Either through Salvatore Briguglio or his brother Thomas, Stephen Andretta met
Armand Faugno sometime during the latter 1960's. Around 1971, notwithstanding
his position as a shop steward with Local 560, Stephen Andretta had an ownership
interest in West End Trucking Company, which was controlled at least in part by
Armand Faugno. Further, during the period between approximately 1971 and late
1972, Stephen Andretta and Salvatore Briguglio would not infrequently visit
Armand Faugno at the latter's place of business in Jersey City, New Jersey.
During the early 1970's, Stephen Andretta also knew Frederick Salvatore Furino,
and was friendly with Ralph Pellechia and Ralph Michael Picardo.
On
February 22, 1979, Stephen Andretta was indicted in the District of New Jersey,
along with Anthony Provenzano, Thomas Andretta, Gabriel Briguglio and Ralph
Pelleccia, on RICO charges (specifically 18
U.S.C. § 1962(c) and (d)) stemming inter alia from the demand for
and receipt of "labor peace" payments from trucking companies which serviced
Seatrain Lines between 1969 and 1977 (Seatrain Labor Peace Payoffs). On July 10,
1979, following his conviction, [**24] Stephen
Andretta was sentenced to a ten-year term of imprisonment, which he is currently
serving. See United
States v. Provenzano, 620 F.2d 985, 989 (3d Cir. 1980).
Gabriel
Briguglio was a member and officer of Local 84 of the International Brotherhood
of Teamsters, which has its offices at 1224 Anderson Avenue in Fort Lee, New
Jersey, until March 31, 1980. Local 84 merged with Local 560 in May of 1980. n12
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- - - - - - -
n12 It should be noted that Gabriel Briguglio has as of
yet not become a member of Local 560 by virtue of or following the merger of
these two Locals.
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- - - - - - - - - - - - - - - -
Gabriel Briguglio was indicted on
February 22, 1979, in the District of New Jersey, along with Anthony Provenzano
and others, in the Seatrain Labor Peace Payoffs case. On May 25, 1979, he was
convicted of those charges, and on July 10, 1979 he was sentenced to seven years
of imprisonment. United
States v. Provenzano, 620 F.2d 985, 989 (3d Cir. 1980).
As to
the three individual defendants who have entered into consent judgments in this
matter, Anthony [**25] Provenzano was employed
by Local 560 as a Business Agent between approximately 1948 and 1958, as the
President between approximately 1958 and May of 1966, and as Secretary-Treasurer
between November 24, 1975 and June of 1978.
Anthony "Tony Pro"
Provenzano's history is a long one. On November 15, 1960 he was indicted in the
District of New Jersey on one count of Hobbs Act Extortion (18
U.S.C. § 1951) relating to the demand and receipt of what is commonly known
as "labor peace" payoffs from the Dorn Transportation Company between 1952 and
1959. On July 12, 1963, having been convicted on this count, Anthony Provenzano
was sentenced to a term of seven years. Between approximately May of 1966 and
1970 he was incarcerated on that sentence.
During 1962, Anthony
Provenzano was indicted again in the District of New Jersey for Taft-Hartley
violations (28
U.S.C. § 186) relating to the wrongful receipt of a [*290] house from Eastern Freightways Company. These
charges were, however, dismissed during 1967.
In 1975, Anthony
Provenzano was indicted in the Southern District of New York for conspiracy to
violate the anti-kickback statute (18
U.S.C. §§ 371, 1954) relating to a proposed [**26] loan from the Utica Teamsters Benefit Fund for the
renovation of the Woodstock Hotel. During July of 1978 he was convicted of these
charges and sentenced to a four year term of imprisonment.
On June 23,
1976, Provenzano was indicted in Ulster County, New York, along with Salvatore
Briguglio and Harold "K.O." Konigsberg, on charges of conspiracy and murder
(pursuant to New York Penal Law § 580-A and § 1044) relating to the 1961 death
of Anthony Castellitto. On June 14, 1978, he was convicted on the murder count,
while the conspiracy to commit murder count was dismissed. On June 21, 1978,
Anthony Provenzano was sentenced to life imprisonment.
Finally, on
February 22, 1979, Anthony Provenzano was indicted in the District of New
Jersey, along with Gabriel Briguglio, Stephen and Thomas Andretta and Ralph
Pellecchia on RICO charges in the Seatrain Labor Peace Payoffs case. On May 25,
1977, he was convicted of these charges, and, on July 10, 1979, he was sentenced
to a twenty-year term of imprisonment and remanded. He remains incarcerated on
that conviction today. See United
States v. Provenzano, 605 F.2d 85 (3d Cir. 1979).
Nunzio
Provenzano, the brother of Anthony and Salvatore [**27] Provenzano, was employed by Local 560 as a
Business Agent between approximately 1963 and August 6, 1966, as a clerk between
approximately 1969 and 1970, again as a Business Agent between approximately
1970 and January 25, 1973, as Secretary-Treasurer between approximately January
25, 1973 and November 24, 1975, and as President between approximately November
24, 1975 and July of 1981.
On December 26, 1961, Nunzio Provenzano was
indicted in New York County, New York, along with Salvatore Briguglio and a
third defendant, on charges of conspiracy and Attempted Grand Larceny (New York
Penal Law § 560 and 1294) flowing from a scheme to demand what might be
characterized as "labor peace" payments from the Braun Company and Hubert J.
Braun, Jr. during December of 1961 (Braun Payoff Demand). On January 29, 1963,
he was convicted of attempted grand larceny, and, on March 5, 1963, he was
sentenced to a term of two to four years. He served this sentence in New York
between approximately August of 1966 and February of 1969.
On September
4, 1980, Nunzio Provenzano was indicted in the District of New Jersey, along
with Irving Cotler, Salvatore Provenzano, and Michael Sciarra, for RICO
violations [**28] (specifically 18
U.S.C. § 1962(c) and (d)) stemming from the wrongful demand and receipt of
"labor peace" payments from four trucking companies between 1971 and 1980, a
series of incidents often referred to as the "City-Man Labor Peace Payoffs." On
May 5, 1981, Nunzio Provenzano was convicted on these charges, and, on July 7,
1981, he was sentenced to a ten-year term of imprisonment. He is presently
incarcerated on this conviction.
Finally, Thomas Andretta, the brother
of Stephen Andretta, has been a member of Local 560 during several periods since
1955, including from approximately August 30, 1955 through November 30, 1956;
from October 29, 1959 through January 15, 1960; from January 10, 1962 through
November 29, 1965; and from February 27, 1978 through July of 1979.
On
March 31, 1967, Thomas Andretta was indicted in Middlesex County, New Jersey,
along with Armand Faugno, for having used threats to injure in the collection of
a loan between March 13 and 23, 1967, in violation of N.J.S.A. 2A:105-4
(Middlesex County Loansharking Transaction). See State
v. Andretta, 61 N.J. 544, 545, 296 A.2d 644 (1972). On May 17, 1973,
Thomas Andretta pleaded guilty to that charge. On July [**29] 10, 1973, he was sentenced to [*291] serve from one to two and a half years in prison.
During early 1968, while free on bail in the Middlesex County
Loansharking Transaction case, Thomas Andretta was indicted in the District of
New Jersey, along with Frederick Salvatore Furino, on charges of Theft from
Interstate Shipment, in violation of 18
U.S.C. § 659, relating to the theft of Skil Tools at the Canny Trucking
terminal during January of 1968 (Skil Tools theft). Following his guilty plea in
that case he was, on or about April 17, 1969, sentenced to a one year term of
imprisonment and remanded.
On July 22, 1971, Thomas Andretta was
indicted in the District of New Jersey, along with Salvatore Briguglio, Armand
Faugno and three others, on counterfeiting charges under 18
U.S.C. §§ 371, 472 474 (Counterfeiting case). He later plead guilty and, on
July 10, 1973, was sentenced to fourteen months of imprisonment.
During
the early 1970's except when he was incarcerated, Thomas Andretta, along with
Ralph Picardo, was a regular and not infrequent visitor to the Local 560
offices, where he and Ralph Picardo were hosted by Salvatore Briguglio. During
roughly this period -- between [**30]
approximately 1970 and late 1972, Thomas Andretta was apparently employed by
Armand Faugno.
On February 22, 1979, Thomas Andretta was indicted in the
District of New Jersey, along with Anthony Provenzano and others, in the
Seatrain Labor Peace Payoffs case. Following his conviction in that matter, he
was sentenced on July 10, 1979 to a twenty-year term of imprisonment. United
States v. Provenzano, 620 F.2d 985, 989 (3d Cir. 1980). He is currently
incarcerated on this sentence.
The other individuals who figure in this
matter, but who are not named as defendants, include Robert A. Luizzi, who has
been a Business Agent for Local 560 since September of 1978. Prior to that time
he was employed by the Local as a clerk between approximately 1960 and 1963, as
a Business Agent between 1964 and 1967, and as a Trustee between May 15, 1967
and November of 1980. Luizzi also held the position of Trustee for the Funds
from March 12, 1974 until November of 1980.
Salvatore Briguglio had been
a member of Local 560 since the 1950's and was employed by it as a Business
Agent from September of 1961 to August 5, 1966; from April 25, 1969 to June of
1973; and again from February of 1974 until [**31] his death on March 21, 1978. Salvatore Briguglio
also held the position of Trustee of the Passaic and Bergen Funds from 1972
until June of 1973 and from early 1974 until January 25, 1975.
On
December 26, 1961, Salvatore Briguglio was indicted in New York County, New
York, along with Nunzio Provenzano on the Braun Payoff Demand scheme. He was
convicted of Attempted Grand Larceny and was incarcerated in New York between
approximately August of 1966 and February of 1969 on that conviction.
On
July 22, 1971, Salvatore Briguglio was indicted in the District of New Jersey,
along with Thomas Andretta, Armand Faugno and three others, in the
counterfeiting case. Following his plea of guilty on these charges, he was
sentenced on July 10, 1973 to a term of fourteen months of imprisonment.
Salvatore Briguglio was incarcerated on this sentence until approximately
February of 1974.
Between the late 1960's and the mid-1970's, except
during the periods when he was incarcerated, Salvatore Briguglio often
socialized at the Chateau Renaissance Restaurant in Hudson County, New Jersey, a
place also frequented by Stephen and Thomas Andretta, Armand Faugno, Frederick
Salvatore Furino and Ralph Michael [**32]
Picardo. Salvatore Briguglio's involvement with Picardo and the Provenzano Group
is also exemplified by the fact that during the period of the Seatrain payoffs,
Salvatore Briguglio promoted the interests of Picardo by persuading Salvatore
Provenzano to facilitate a meeting between Picardo and Thomas Durkin (Seatrain's
attorney) so that Picardo could drum up additional [*292] business for Picardo's trucking company.
On June 23, 1976, Salvatore Briguglio was indicted in Ulster County, New
York, along with Anthony Provenzano and Harold Konigsberg for the 1961
Castellitto murder. On March 21, 1978, while under indictment in that case,
Salvatore Briguglio was shot to death on Mulberry Street in New York, New York.
Armand Faugno was indicted on March 31, 1967, along with Thomas
Andretta, in the Middlesex County Loansharking Transaction case. State
v. Andretta, 61 N.J. 544, 545, 296 A.2d 644 (1972). On July 22, 1971,
Faugno was indicted in the District of New Jersey, along with Salvatore
Briguglio, Thomas Andretta and three others, in the Counterfeiting case. n13
During December of 1972, while under indictment in both of these cases, Armand
Faugno "disappeared."
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-Footnotes- - - - - - - - - - - - - - - - - -
n13 While the exhibits
relating to these two indictments may have inadvertently or incorrectly been
ruled inadmissible during the trial in this matter, Salvatore Provenzano's
testimony provides an alternative basis for my findings of fact on these
matters.
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- - - - - - - - - - - - [**33]
Ralph
Michael Picardo was a member of Local 560, as well as being the principal
operating officer of several trucking companies, including Lift-Van Transport.
Picardo was a friend and associate of Stephen Andretta and had an affiliation
with Seatrain Lines.
On February 22, 1979, Ralph Pellecchia was
indicted, along with Anthony Provenzano and others, in the Seatrain case. On
April 26, 1979, he pleaded guilty to related tax charges contained in that
indictment. On July 2, 1979, he was sentenced to two and a half years of
imprisonment.
Frederick Salvatore Furino was, during the late 1960's and
early 1970's, a friend and associate of Stephen Andretta, Thomas Andretta,
Salvatore Briguglio, and Michael Sciarra, and knew Ralph Picardo. In March of
1968, Furino was indicted in the District of New Jersey in the Skil Tools Case.
Later, during the latter part of the 1970's, Furino operated a trucking company
which provided non-union labor to the Canny Trucking operation which was under
contract to Local 560. On June 11, 1982, the body of Frederick Salvatore Furino
was recovered. The crime has never been solved.
Finally, Salvatore Sinno
played a prominent role at trial as one of the [**34] government's chief witnesses. Sinno, a
self-described criminal, was an early associate of the Provenzanos and their
friends.
CREDIBILITY FINDINGS
Salvatore (Sam)
Provenzano
During the course of his direct testimony Salvatore
Sinno was asked about Salvatore Provenzano:
Q Did you ever engage in any illegal activity with Salvatore
Provenzano?
A No.
Q Did you ever talk to
Salvatore Provenzano about illegal activity?
A No.
Q Mr. Sinno, did you ever receive any instruction from Anthony Provenzano
about what you could or should talk to Salvatore Provenzano about?
A Yeah, they -- he never wanted Salvatore Provenzano, to get involved in
anything illegal. We discussed that many a times, yes.
Q Can
you tell us specifically what Mr. Anthony Provenzano's instructions to you
were?
A He wanted to keep him more or less clean. He didn't
want to get him involved in any way or other in illegal activities.
Q Did he give you the reason that, as you put it, he wanted to keep
Salvatore Provenzano clean?
A Well, I imagine --
MR. WEISSBARD: Objection.
THE COURT: Don't imagine.
Objection sustained. Answer the question.
A Yes. He [**35] mentioned that quite often, in regard, he didn't
want Salvatore Provenzano with any kind of a record or anything, but, for the
Union's sake. [*293]
Sam Provenzano
presently is an International Vice President of the Teamsters Union, President
of Joint Council #73, and President of Local 560. He thus wields great power on
a national as well as local level.
He is intelligent, affable and
likeable. Had Sam Provenzano decided to shed the company he has kept for at
least 25 years, there is little doubt in my mind that he would occupy a
prominent place on labor's scene today.
The evidence is highly
persuasive that from the late 50's on into the 70's, Anthony (Tony Pro)
Provenzano, ran this union with an iron hand whether in or out of prison or
office. Sam and Nunzio played musical chairs in minding the store for Tony to
satisfy the technical requirements of the law.
At some point in the 70's
Sam came into his own. With power at his fingertips, he ran the show and still
does. Did he stay "more or less" clean as Sinno had testified? He did not. Most
of the time he helped to steer the ship the way Tony wanted it and made sure the
same crew remained on board.
I listened in [**36] amazement to him persistently proclaim his belief
in the innocence of his brothers and other members of this criminal syndicate
with respect to various crimes that they had been convicted of or pled guilty
to.
Was he naive, blind or deaf? No. Salvatore Provenzano, in my
judgment, knows the truth and is oblivious to it.
Why? A revealing
answer was provided on April 27, 1983 when he was asked on cross examination:
Q Today, given all that has happened with Local 560 and all
the indictments and this civil complaint and everything like that, if another
indictment came down like the Seatrain indictment, would you, today, think it
a prudent thing as the president of the union to make an inquiry to try and
find out what the circumstances were with respect to the union contract and
the alleged violation of the contract?
A To answer your
question, yes. If I would have done it by reading the indictment is something
else. I think it is prudent. I thought I answered that before, that I started
to check out what was going on.
Q Okay.
A I
never denied that. What I am saying is I didn't bother to read the
indictments. But I was interested in what took place.
Q
[**37] All right, sir.
Now, I think I
understand you. You were interested then -- you were interested at the time of
Seatrain in what was going on?
A Yes. Because my brother was
involved, and I couldn't see how he was involved in the situation. That was my
main concern.
Q Your brother?
A Yes, sir.
Q As opposed to the union?
A He comes
first. I will say that.
(emphasis supplied)
He still does. For Sam Provenzano inherited a legacy of corruption which
has been preserved by him to this very day. In speaking of Tony in partial
response to my question he said: "He would never do anything to hurt this
membership."
The record is otherwise.
JOSEPHINE PROVENZANO
Miss Provenzano, daughter of Anthony Provenzano, has been the
Secretary-Treasurer of Local 560 since 1978 when she was elected to that office
at the age of 23 to succeed her father who had been convicted of murder. She
presently earns $64,000 per year plus perks.
She has an engaging
personality and has no illusions as to why she was appointed. She said:
A . . . what motivated them to do that, I have to say it is
because -- not only that I was a Provenzano, that counts for weight, but
[**38] I was Tony's daughter. See, [*294] there is only one Tony to them. Now, there was
a big issue in this case as to what members believe, what they read in papers
or don't they believe, were they influenced by it? I have to tell you the
truth. I don't think they would have cared if it was true or not
true. Because they know what he did for them. To them, in their minds,
what did the press ever do for me? What did the government ever do for me?
They take my taxes and they go on about a whole platform of things they
disagree with the government. Look what Tony did for me. He gave me pensions,
eyeglasses, he gave me dental. I have welfare payments. He saw me on the
street and took me in the bar. We had a drink. He remembered my wife's name.
He asked me how my daughter was, that had the concussion in the hospital.
There is something about my father, sir, -- not that you can't get mad at him.
You can get mad at him. There is something about the man. I mean you can't
understand until you're like one of the guys from 560. They just -- I would
have never believed it, if I wasn't in those meetings and I didn't hear those
people go wild about him. I mean they liked him, [**39] but it is just incredible to me. It is just
absolutely incredible to me. And to them, I am Tony's daughter . . . .
There can be, to the members of Local 560, no higher recommendation in
this entire world. And if I don't believe that, well, I wouldn't be here right
now because I wouldn't be a member of the executive board of Local 560.
It is -- I don't know how to put it into words. It is more like an
emotion you feel. He has an uncanny ability of making people relax, and making
them know he cares. He is not a big deal. He is not very well-educated,
book-wise. He might have gone to the fourth or fifth grade. But you give him a
contract, he can read it. I don't know how he can read it. He just can. You
put him in a room with 500 truck drivers. Nobody in this world is going to
talk to them that they will understand more than my father. You put him in a
room with ladies, and you never see him. My girlfriends -- when my father --
there is articles in the papers or -- they cry. They call me on the phone in
tears. 'How could they say that about your father?'
I tell them, 'Hey,
listen, everyone is entitled to their opinion. You know better. Don't cry.
Don't get upset. Don't [**40] read it. That's
all.'
He just commands such love and respect, and admiration and
loyalty, not only from his family, but from the members of Local 560. Anyone
that comes into contact with him. I don't know what else to say, your Honor. I
mean, I don't even know if I expressed myself properly or adequately, but that
is just how I feel. I am so proud to be my father's daughter. [Emphasis
supplied].
Whatever experience Miss Provenzano lacks, she makes up
in candor. Her understandable love for her father transcends everything else.
STANLEY JARONKO
As pointed out previously, Mr. Jaronko has been
a member of the Local since 1949 and a business agent since 1977. He was a shop
steward for 17 years. He is a trustee of the union and a union representative to
the Trucking Employees of North Jersey Fund (TENJ).
He was asked:
Q Have you, to the best of your knowledge, ever done anything
that a member might think was designed to intimidate him from coming to
meetings or speaking out his mind?
A Nope, never did it. Never
will.
He was asked:
Q Mr. Jaronko, if Nunzio Provenzano was able to come back to
the union tomorrow, you as one member of the Executive [**41] Board would vote him on in a minute, I take it,
right?
A Yeah. I believe there is a law that he can come back.
But after he does what is he supposed to do? Yes, I would.
[*295] Q And if that law didn't exist and
he could come back tomorrow, you would take him back tomorrow, right?
A Yes. And I believe the members will, too.
Q
And you would do the same thing with Anthony Provenzano, assuming he could
come back tomorrow, you would take him back tomorrow?
A
Yes.
With respect to the Maislin Terminal incident involving Local
560 member August Muller, described infra, I find Mr. Jaronko's
testimony unconvincing and his version of the story unbelievable.
A
careful review of Mr. Jaronko's testimony reveals that, with one exception, he
steadfastly refused to accept a verdict of guilty involving the Provenzanos. His
rationale -- they were convicted on the testimony of an informer.
Overall, I found Mr. Jaronko to be fiercely loyal to the Provenzanos,
completely indifferent to the history of criminal activity on the part of
various individuals, including Anthony and Nunzio Provenzano. Mr. Jaronko's
fealty to the present regime is steadfast beyond question. [**42] His testimony left much to be desired.
J.
W. DILDINE
A business agent of Local 560 and Recording Secretary since
1968, Mr. Dildine impressed me as an intelligent individual who in retrospect
"sold himself to the devil" twenty years ago when he agreed to come to work for
Anthony Provenzano as a business agent.
He testified in an extremely
lucid manner when confronted with the sordid history of the local and its
leaders. He was calm and for a time quite impressive and persuasive.
He
testified as follows:
THE COURT: What is your feeling regarding all
these involvements affecting Mr. Nunzio Provenzano?
THE WITNESS: My
personal feeling is that I would have to judge Nunzio Provenzano as well as
Salvatore Provenzano and Anthony Provenzano in my personal contact with them and
my personal relationship with them.
THE COURT: Yes, sir.
THE
WITNESS: It has always been one of a strict business, from the office. Over the
years we had grown, I guess, close because of our business association, within
that office.
THE COURT: Yes, sir.
THE WITNESS: Outside of that
office, we did no, how would I put it, personal contact where we socialized or
whatever. I came on the scene as a, as, [**43]
the expression, a new kid on the block. I had to prove myself. I came in through
the appointment of Mr. Anthony Provenzano. I dug in. I worked hard. I tried to
repay that appointment by dedication and hard work. So my association with these
gentlemen were always above board.
They never asked me to be involved in
any kind of skullduggery, nor was I ever aware that there was any skullduggery.
It was strictly, in that office, as even today, these people worked very
hard. They put in a lot of hours, and they really tried to do the job for the
membership.
So in answer to your question, your Honor, I don't know that
there has ever been a time that I, and I have had many conversations with
Anthony as well as Nunzio, when he was the President, and even today, Salvatore,
and their main concern was and is today getting the job done and beyond that, I
don't know what more I can say.
THE COURT: All right. Would it be fair
then to conclude that, insofar as Nunzio is concerned, Nunzio Provenzano, that
you don't believe he was ever involved in any skullduggery, to use your
expression?
THE WITNESS: To my knowledge, no, sir.
THE COURT:
And you believe in his innocence?
THE WITNESS: [**44] Yes, sir.
THE COURT: Okay, Now --
[*296] THE WITNESS: That was in the
June thing. The other one, that is another matter.
THE COURT: Well, I
presume that your opinion is the same with respect to the union conviction?
THE WITNESS: Yes, sir.
THE COURT: The most recent conviction?
THE WITNESS: Yes, sir.
THE COURT: All right. You were here when
the government produced this Professor Summers, were you not?
THE
WITNESS: Yes, sir.
THE COURT: Were you in the room?
THE WITNESS:
Yes, sir, I was.
THE COURT: Do you recall him testifying one day that,
and I am paraphrasing it now, that, so you will forgive me, Mr. Dildine, that,
it's just not natural, based on his expertise in unions, particularly after the
state conviction, for nobody to come out and say, 'he done wrong.' Forgive my
English.
What is your reaction to that, to someone who is no longer the
new kid on the block?
THE WITNESS: My reaction, I was asked I think at
the very beginning of my testimony yesterday what my educational background was,
and compared to Professor Summers, I guess, my formal education is rather in
remiss.
However, I guess, I have had 55 years at the school of hard
knocks, and it's [**45] to -- to try to compare
his analyzation from a classroom type of projection, you have to live it, you
have to be a part of it.
You have to be on the firing line. You have to
be up front. You have to deal with these problems on a daily situation. Mr.
Anthony Provenzano is a very unique personality. He has a charisma about him
that he could relate to those people sitting out there in the meetings, in the
meeting rooms. To try to dissect what the professor had to say about it, when
you asked him what he thought, in his learned position, would be the remedy, his
analyzation, without ever meeting me, without every talking to me, knowing me
and my background, my family, or any of the other people that I work with, his
immediate response was to remove everybody from office, right now, and appoint a
trustee, and through cross examination by Mr. Briguglio, he brought out the fact
that he had been offered the job as that trustee by the government.
And
I am sitting over there, your Honor, and I am a kid from the poor side of the
block, and it's for, for me, it's a frightening thing to be confronted, and to
be sitting in this seat here as a defendant and be charged with violations of
[**46] the Hobbs Act, where I extorted members,
and to be in violation of everything that is holy, as far as being a union
representative goes.
And to be charged by the United States Government
in this, it's frightening, and I will tell you something, I have spent many
hours on this, and I could probably walk away tomorrow with a small retirement,
but I wouldn't do it under these conditions, because I have never, in my past,
have done anything to deserve this type of treatment, not from the Government,
or anyone else, or the members that I serve.
THE COURT: Do you feel it
is a vendetta?
THE WITNESS: Yes, sir, I do, to the 'nth' degree, I
think. I have been associated with the people in my office for some 20 years.
THE COURT: Yes, sir.
THE WITNESS: And there have been
convictions. There have been millions of dollars spent, of taxpayers money. They
have, they don't have to answer to anyone for this, to my knowledge.
They have unlimited time. We are here today having to defend ourselves,
we have to pay for our own counsel fees, and there are those among us, your
Honor, that, we are in financially terrible shape.
Some of us may have
to mortgage our homes in order to pay our legal [**47] fees. But even in the face of that, I can stand
here [*297] and I can look at these three
gentlemen, eyeball to eyeball. I can look at Mr., what is his name, Dumont, and
I can look at you, your Honor, and tell you that I have not, nor have my
associates, sitting here today, since we have been in office, violated any law,
federal or otherwise. Anybody can sit back and Monday morning quarterback and
say, why did you appoint young Josephine or why did you do this. But these were
done in good faith, forthright, and whatever, and each one of these things, I
have partaken in it, I have participated in it, but I do not bow my head to this
court, from any actions that I have taken.
Anyone can say, well, look,
here was Tony got convicted, Nunzio was convicted, Sal Briguglio was convicted.
You brought these people back to work. Why did you do these things? Why was he
given a raise in pay? Why was he given a half pension? And all those things,
your Honor, if you had the luxury of time, if you could attend one of our
meetings, unannounced, and just sit in a corner where they won't know who you
were, you would see the response of those members.
It's not
choreographed. Our people [**48] stand up for
what they think they want. We are mandated by their actions. The raise in pay
came from them, the half salary came from them, and each one of these items, it
was not a frivolous type of action by the executive board or whatever. All these
items were checked out legally.
We got legal opinions as to whether or
not we could do these things. All these pay raises and whatever, or back pay
that was owed. It was reported on the tax report, the LM 2's or whatever.
This is not a secret, your Honor.
These people, they came in
here and they try to, they bring in people to testify that I have never met, I
don't know anything about them, they don't know anything about me, and yet they
would try to sway this court, and you are the judge, and you are the jury and
the trier of fact in this, and it will be your opinion, is what will weigh heavy
to we as a group, and I say to you, you Honor, that we, as a group, have not
indulged as a board, in any kind of violation of our members' rights.
Now, I was rather longwinded, but --
THE COURT: It's all right.
THE WITNESS: But I feel, your Honor, there are things that you must
know.
THE COURT: I am interested in this.
THE WITNESS: [**49] I feel that --
THE COURT: Tell me about
the present President, Salvatore Provenzano. Tell me about him. He is here in
the Courtroom?
THE WITNESS: Salvatore Provenzano is the President of our
Local Union. He is also the President of the Joint Council for it, in the State
of New Jersey.
He has been the Secretary for the Eastern Conference of
Teamsters, whose main office is in Bethesda, Maryland and he is also an
International Vice President.
THE COURT: Of the International --
THE WITNESS: Of the International.
THE COURT: Right.
THE
WITNESS: And he wears many hats, he has a wide variety of responsibilities.
And through the years that Mr. Salvatore Provenzano has been delegated
to these authorities, of course, his knowledge, has expended immensely because
he has been exposed to many more things on a national level and the conference
level than those of us in the local, of course, are not exposed to.
He
has been on the firing line through negotiations, top level. So all these
experiences that he has acquired over the years, he has been there I guess since
the early 1960 or 1961, so he has had twenty some years as an officer and he was
also a member prior to that as [**50] a driver,
and his expertise has come over the so-called road of hard knocks, too.
He has earned disappointments. He has earned his way.
And those
in the higher authority have evidently seen things that his leadership [*298] ability and they have appointed him into those
offices, originally as a Vice President, International, and since that time, he
has also run in elections and he has been re-elected.
So my appraisal of
Mr. Provenzano, not because he is sitting here, because over the 20 years we
have not always agreed on things.
But we argue these things out at board
meetings and we come to a conclusion. He has been one that has always, in my, to
my knowledge, has requested the members to take a part, an active part. He even
tells us in the board meetings, if you got something to say, say it.
So
my association with him has been, as with Anthony and Nunzio, has been always
with a great deal of respect, and I hope that the respect is a two-way street.
THE COURT: Is he popular?
THE WITNESS: Yes, sir, he is very
popular.
* * *
THE COURT: Okay.
Have you observed any
political dissidence insofar as his tenure as a union office holder is
concerned?
THE WITNESS: [**51] No, sir,
I think that over the years, of course, when Anthony Provenzano was first taken
away from the membership, and then Salvatore, we call him Sam, so I will refer
to him as Sam.
THE COURT: Sam, I gathered that. I am observing the
formalities.
THE WITNESS: Sam took over the reins. I think there was a
period of time that the members, well, they were, you know -- he was Sammy's --
Tony's brother, but in a very short time, I think that they recognized his
ability and his zeal for the job, and as time went on, of course, he went, he
was appointed a general organizer, and then from that, of course, he was made an
international vice-president, and of course, this gave our local a great deal of
recognition to the rest of the Country.
He was a part of that
recognition, because of his dedication to the job, and I think that Sam probably
puts as much energy into this job as, and maybe more, than most international
vice-presidents.
THE COURT: So what you are telling the Court is he has
earned his own spurs?
THE WITNESS: Yes, sir, without question, and I
don't say it because he is sitting here.
I did not get the impression
that Mr. Dildine was completely comfortable with the role [**52] he assumed. History teaches us that every so often
those that keep their mouths shut, and eyes and ears closed in the face of evil
are called to account. In a way his culpability is greater than most others. He
really should have known better. By his inaction he facilitated the spread of
the disease. As Edmund Burke stated in a letter to William Smith dated January
19, 1795, "the only thing necessary for the triumph of evil is for good men to
do nothing."
Mr. Dildine spoke glowingly of his father's role in labor's
struggles against the Ford Motor Company in the 30's. When he decided to leave
his job as a terminal manager in 1963 and accept Tony Provenzano's offer he
reflected:
Q When did your next discussion take place and what did you
do about it in the meantime, if anything?
A Well, in the
meantime, of course, I had a lot of sleepless nights, I guess you would call
it, because I had worked pretty hard at what I was doing, and I was trying to
get ahead in life, I guess you would call it, and I felt that there was a
future for me in that job, although I was being underpaid, I felt that the pay
would come eventually if I really proved myself out. With the title [**53] comes the pay, I guess, but I felt that, well, I
would like to get involved in this, and I did a lot of thinking about this,
because my history as a young kid, I go back, back in the thirties during the
Depression years, and my father, he worked for Ford Motor Company in Detroit,
and he was one of the first three men to be fired for union activities back
during that period.
[*299] And I
recalled it and I relived that over and over again, and the fact that he was
almost killed several times leading the pickets against, at that time, a
company that was so big you just could never beat it. And he was one of the
leaders of that strike. He was part of the so-called walkway, where they drop
buckets with lead in the bottom on the pickets, when they brought in strike
breakers and whatever. And I recall during those days as a kid walking picket
lines with my father, and those were hard days, when unions were starting. I
never forgot those days.
So that had a lot to do, I think, with my
decision, and I thought deeply and I talked with my family about it, and
whatever, and it is going to be a whole new change of life, lifestyle, and I
also felt that, hey, my father would have been [**54] proud of me. So that had a lot to do with
it.
It is difficult to reconcile his professed idealism
with the record.
SALVATORE SINNO
Mr. Sinno is a former
racketeer, one of the murderers of Anthony Castellitto, and was the chief
witness against Tony Provenzano and others at the murder trial. In this case he
also assumed a prominent role in furnishing the court with a graphic account of
how it all began.
His testimony linking Anthony and Nunzio Provenzano to
one of the most notorious crime families in New York, and his recitation of a
pattern of intimidation and criminal activity which accompanied the takeover of
Local 560 had the stamp of credibility. Sinno, a huge man, seemed right out of
central casting. As I listened to his tale, it was obvious that this was the
real life version of that cinematic presentation "On the Waterfront."
Sam Provenzano in the course of his testimony in exculpating his
brother, spoke of various stupid mistakes Tony had made in various criminal
entanglements which had landed him in prison. The biggest mistake Tony ever made
may have been to initiate Sinno into his criminal fraternity. Sinno's testimony
in this case was extremely valuable. [**55] The
past is truly prologue.
JOSEPH SHERIDAN
Shop Steward since 1965,
Business Agent since 1972, Trustee since 1978, and Vice President of 560 since
1981. Mr. Sheridan presented a picture of an individual whose family had taken
an active role in the union in the pre-Provenzano period and who had inherited
the mantle. The other business agents, Mr. Sheridan appeared to me to feel very
comfortable with his earnings of $995 per week. He is not a boat rocker. When
asked about Nunzio Provenzano he said:
A Sir, if you know Mr.
Provenzano, Nunzio Provenzano like I know him, and I know him quite a few years,
I don't believe those allegations.
I know him to be an excellent labor
leader for his people, a good family man and a man I would be very proud to
recognize in the morning. I don't believe them.
Q And if he were
eligible to serve tomorrow, you, as trustee and vice-president of the Local,
would bring him back tomorrow?
A I would be happy to.
When asked about Anthony Provenzano he said:
A Sir, let me go back.
I only served a couple of years with Mr. Anthony Provenzano. I believe he came
back in '75 to '78. I was on '72, he wasn't there. So my experience with Anthony
[**56] Provenzano is only as a member of Local
560 for that period of time.
I know the men idolized him and I can see
why they idolized him. He was a man, he come off the trucks the hard way. I
don't think that is something, I think I said in my testimony, I said the man
has charisma that I wish I had. I don't have it. He is the type of man that can
walk in a room with 5,000 hard hats could be in there, and he is well-respected
no matter where he goes, because I don't think there is a man in our union, or
in the labor [*300] movement, that can say
anything against him, about this man.
He is a fighter. He fights
hard. And I will give you an example like I respect him for. I think he just was
incarcerated and he come out for a short time. I think it was a two-week period.
Q Which incarceration?
A I think, I don't know if it is on the
murder one or on the Seatrain. He was out for about -- a couple of weeks. And
with all on that man's mind, and any conversation I had with Mr. Provenzano was
hello, how are you, and nothing other than that.
I am telling this Court
today, your Honor, just the way I feel about this man. I am choked up about it,
that is the type of guy [**57] he was. He would
come down to my desk. He says 'Joey, how are you? I am sorry to hear your wife
has cancer.' He says, 'Anything I can do to help you, let me know.' I said, 'I
appreciate it, Mr. Provenzano.' He says, 'Hang in there and do the best you
can.'
That's the type of guy he is, with all that is on his mind,
somebody else might not even think of it, but he thought, just a little
something like that, that little charisma like that man has. Tomorrow morning,
if you let him out of jail he would win the election overwhelmingly, with all
the supervision you want to put up, he would walk away with the election.
THE COURT: If you felt he murdered Castellitto, would you still feel the
same way?
THE WITNESS: No, I wouldn't.
THE COURT: Why?
THE WITNESS: If anyone takes anybody's life, I wouldn't even care if it
was an animal, I certainly wouldn't respect him or want any part of him or have
anything to do with him.
THE COURT: If you felt that he extorted Dorn's,
how would you feel about it?
THE WITNESS: I certainly wouldn't respect
him or admire him.
THE COURT: Would you vote for him?
THE
WITNESS: Excuse me?
THE COURT: Would you vote for him?
THE
WITNESS: I would [**58] have to weigh that one,
sir, because if he was convicted in my conscience, he did something wrong like
that, no, I don't think I would.
THE COURT: What about Nunzio's
conviction in 1981, if you felt he was truly guilty?
THE WITNESS: If I
thought Mr. Nunzio Provenzano was truly guilty of the crime, I know I wouldn't.
THE COURT: You know what?
THE WITNESS: I would not vote for him.
THE COURT: All right.
Let me ask you this. Mr. Dildine testified
in this courtroom that he felt the government has pursued a vendetta. I think
that was the word he used originally, and then I picked up on it, against Local
560.
THE WITNESS: Yes.
THE COURT: You were in the Courtroom for
that?
THE WITNESS: Yes.
THE COURT: Okay. What does the
government have have to do, in your mind, I am talking about Joseph Sheridan's
mind, if I may use the shopworn phrase, to put the ball across the line, to
convince you that these individuals who Mr. Laufer has been talking about the
last few minutes, were guilty of crimes. What -- in other words -- let me back
up a moment.
Like all of us, I am sure you read the newspapers, right?
THE WITNESS: Yes, sir.
THE COURT: Every day we pick up the
paper, [**59] we read Joe Smith convicted of
murder or robbery in some hamlet in the United States; right?
THE
WITNESS: Yes, your Honor.
THE COURT: Okay. You read that article, you
don't know Joe Smith, I am assuming that. What reaction do you have, as a normal
human being?
[*301] THE WITNESS: As
reading that in the article, I certainly wouldn't think much of the individual
who caused that crime.
THE COURT: Do you think the man has had a trial
by a jury, right?
THE WITNESS: Yes.
THE COURT: The jury has
deliberated and found him guilty beyond a reasonable doubt.
THE WITNESS:
Yes, sir.
THE COURT: Would it be fair to conclude that, on the basis of
what you read, the man is guilty? He has been found guilty; right?
THE
WITNESS: Yes, sir.
THE COURT: All right. Now, all these cases that we
have been talking about, with one exception, I think, I mentioned to Mr. Dildine
the plea of guilty by Mr. Sal Briguglio, the counterfeiting case, there were
verdicts handed down. Why, in your mind, Joseph Sheridan's mind, do you have a
different reaction?
THE WITNESS: Sir, I guess, like you say, if you read
something in the paper and you don't know somebody, you are fast to judge an
opinion, [**60] which we all do. I do it myself.
THE COURT: Right.
THE WITNESS: But I got to tell it to you the
way I know it, is that I didn't really know the Provenzanos. I just knew of them
being our leaders in the union and I personally, as Joe Sheridan, never really
got to know them until I became part of an organization. I can speak for my
family, my wife, and I am not just saying that in here, I consider myself a very
devout man, a religious man, and I bring my family up this way. I have been in
their company on not many occasions. They are respected people in their
community. They have lovely children. They brought them up to respect their
parents, and I don't see this aura of, you know, what we are talking about,
because I am there almost -- I am there 11 years, and I can say that, as God is
my judge, all I know these people to be is, no one ever, in the 11 years I am up
there, said to me, Joe Sheridan, this is the contract.
Your Honor, I
believe you asked me the question yesterday, when you said, can you, as Joe
Sheridan, make a decision without picking the phone up? I can tell you companies
where -- and this is not done in all unions, where if I go out to negotiate a
contract [**61] and if I know I got the best
that I can, I don't have to go to that phone, sir, and I never have.
I
will just say, that's the contract. If the people ratify it, I will come in the
next day and I will tell whoever the president is at the time, sir, this is our
contract. I got this and I got that. That is how I know these people, sir.
THE COURT: I understand that. But as a devout individual, and that is
the way you have described yourself.
THE WITNESS: Yes, sir.
THE
COURT: Haven't you ever questioned, that is my -- haven't you ever questioned in
your own mind, I mean aside from the fact that you are on the payroll, and I am
being real up front with you --
* * *
THE WITNESS: I am sitting
in the courtroom when Mr. Sinno was here, and we are going through testimony,
and they are talking about the Mafia, and the 'hit men', and all these here
people, your Honor, like I said, unless I am most naive people in the world, I
am up there 11 years, I never met that type of individual, I never come in
contact with them, and I don't know these people to be anything but good labor
leaders, and responsible family men. I will go to my grave saying that.
They are good fighting people [**62] for
the people they represent. Sure, the things that went on in the past, you can
say quarterbacking on a Monday morning, maybe this or that should have been
done, but they try, even to the membership, Sam said to me, he says, we have the
contract for the Meadowlands, he said Joey, do you think you can get the Brendan
Bryne Arena, [*302] he says, I got to try
something and see if we can't get this membership out.
* * *
THE
WITNESS: Your Honor, you know the hardest thing I think you have to fight, being
a member of our Local, you can be invited out for a party, has nothing to do
with unions or any union officials there, and it has happened to me quite a lot.
The conversation, what do you do for a living. Business agent for 560. Oh, boy.
You know, it is that type of stuff where, I think the papers have done a job,
and it is a household word, as far as, you know, I think everyone thinks that
this is a racketeer local, and it is a dominated local.
Joseph Sheridan:
decent, devout, blind and bought.
MICHAEL SCIARRA
Michael
Sciarra has been a member of Local 560 since the mid-1950's. He was appointed a
business agent in July of 1972, and held that position until 1976. He [**63] was reappointed in 1977. He became a trustee of
the union in 1981.
Mr. Sciarra, in very emotional terms, spoke of his
love for the union and its members and their love for him. During the course of
his testimony, he stressed his devotion to his duties and his desire to do
everything which would benefit the membership. Yet, the government was able to
demonstrate that his "love" did not cause him to vigorously police Canny
Trucking Company, where his good friend Fred Furino was funneling in non-union
drivers for Canny's operation. The situation allegedly came to light only after
Mr. Furino was found murdered. Mr. Sciarra testified that he was shocked when he
learned of it. As noted elsewhere in this opinion, I am persuaded that his
explanations concerning this whole affair were lame.
His love affair
with the Provenzanos is more passionate. On that score the record is clear. He
was asked:
Q In fact, you stated at your deposition that Anthony
Provenzano is your idol; is that correct?
A Yes.
THE COURT: Is your
what?
THE WITNESS: My idol.
He was further asked by
me:
THE COURT: Now, you recall my question, my question was, do
you recall Miss Josephine [**64] Provenzano
telling the Court, even if all these charges were true, the local union
members would welcome back the Provenzanos?
THE WITNESS: Overwhelmingly.
Overwhelmingly.
THE COURT: Even if the charges were true.
THE WITNESS:
Even if the charges were true.
THE COURT: Would you welcome them back?
THE WITNESS: Yes. I got my own opinions. I am not the same as the members.
I told you my opinions and my feelings.
The members would welcome them
back with open arms. Nunzie, whom I have known a little better, I got closer
to over the years than I did with Anthony, was a hell of a business agent,
your Honor.
THE COURT: So that even if, and you have expressed yourself
very strongly, and I am not being critical, and very emotionally concerning
the charges in which you were involved in and which you were acquitted of.
Even if you knew that Nunzio was guilty, and there was no bar, would you bring
the guy back?
THE WITNESS: I would definitely vote for him. He would help
tremendously.
THE COURT: I was going to ask you why, in other words --
THE WITNESS: Because of his knowledge of the business, his handling of
people, he knows how to handle men, and he handles women very well, too,
[**65] by the way. And I don't mean that
facetiously. We have a lot of women we represent. And the women and the men, I
have never heard one bad remark about Nunzie Provenzano.
THE COURT: And --
[*303] THE WITNESS: I would welcome him
back with open hands, any one of them.
THE COURT: That includes Mr.
Anthony Provenzano?
THE WITNESS: Yes.
THE COURT: In other words, if
you knew, for example, that the charges -- if you were convinced that the
charges involving the murder of Anthony Castellitto were true insofar as Mr.
Anthony Provenzano is concerned, and you had the power, I realize, it sounds
-- it sounds rather improbable, but I am trying to get your mind set --
THE WITNESS: I understand.
THE COURT: I am trying to find out how you
think, Mr. Sciarra. If somehow the doors would open, and Anthony Provenzano
would come out --
THE WITNESS: I would pray.
THE COURT: You would
what?
THE WITNESS: I pray for that.
THE COURT: You would welcome him
back; is that what you are saying?
THE WITNESS: Yes.
THE COURT: I am
not trying to put words in your mouth.
THE WITNESS: Yes, I would.
THE
COURT: Can you tell me why, assuming you knew that --
THE WITNESS:
Providing all the laws permitted [**66] him
to?
THE COURT: Yes.
THE WITNESS: Again, his leadership, his -- I don't
know about his knowledge too much any more, being he has been away so much. I
know his leadership and the following he had. Man, I would gladly welcome him
back, your Honor.
I know he would be a value to the Local Union. The
membership alone loves him.
THE COURT: Would that be true with respect to
Mr. Stephen Andretta?
THE WITNESS: Stephen, yes. Stephen was a good
business agent.
THE COURT: All right. In other words, you don't believe
the charges?
THE WITNESS: Your Honor, I know Steve very well. We are very
close, him and I. He is one of the reasons for my going down to the Company K
a lot, when he was down there.
THE COURT: Okay. If you felt the charges
were true, nevertheless, you would welcome him back?
THE WITNESS: If the
charges were true on Steve, I would have him back. He doesn't know anything
but the trucking business, your Honor. If he is forgiven by the law and by the
Lord and he served his time, okay. I will gladly welcome him
back.
It is perfectly understandable why Mr. Sciarra supported the
motions to vote Mr. Anthony Provenzano a salary increase and a half pension. Mr.
[**67] Sciarra is an excellent example of how
the Provenzano Group has been able to survive and dominate Local 560.
II.
Continuously between approximately the late 1940's and the
present, Anthony Provenzano has been the leader of a group of individuals who
have been associated together in fact as an enterprise within the meaning of 18
U.S.C. § 1961(4), the activities of which have affected interstate commerce.
n14 This group of individuals, [*304] the
"Provenzano Group", has included (in addition to Anthony Provenzano), Nunzio
Provenzano, Stephen Andretta, Thomas Andretta, Gabriel Briguglio, Andrew
Reynolds, Salvatore Briguglio (until his murder in 1968), Salvatore Sinno (until
his defection in 1961), Harold "K. O." Koningsberg (until his incarceration in
the mid-1960's), Armand Faugno (until his "disappearance" in 1972), Ralph
Michael Picardo (until his defection in 1975), Ralph Pellecchia (until his
imprisonment), and Frederick Salvatore Furino (until his murder in 1982). The
evidence adduced at trial clearly demonstrates that these individuals conspired
to and actually did conduct the affairs of the Provenzano Group Enterprise
through a pattern of racketeering activity, in violation [**68] of 18
U.S.C. § 1962(c) and (d), involving murder and labor racketeering offenses
on a protracted and continuing basis so as to enrich themselves and perpetuate
the existence of their criminal association. The evidence further demonstrates
that the Provenzano Group has maintained an ongoing organizational structure in
the form of a hierarchy and protocol, which has controlled the affairs and
conduct of the Provenzano Group's associates during approximately the past
thirty-five years. Finally, it has also been conclusively demonstrated that the
Provenzano Group has had an existence separate and apart from simply the pattern
of activity in which it has engaged.
- - - - - - - - - - - - - -
- - - -Footnotes- - - - - - - - - - - - - - - - - -
n14 The defendants'
assertion that the characterization of the Provenzano Group as an enterprise
represents an unfair and prejudicial "last minute" altering of the government's
theory of the case is without merit. I find that paragraph 12 of the complaint
gave adequate notice to defendants as to this allegation. A mere
recharacterization of facts and claims which had been previously fully alleged
in the complaint, to harmonize them with changing caselaw, see United
States v. Riccobene, 709 F.2d 214 (3d Cir. 1983), cannot be considered
prejudicial. It is, as Judge Wood has stated, "a basic principle of the Federal
Rules of Civil Procedure that a litigant is not bound by the selection of a
particular theory of relief." Lance,
Inc. v. Ginsburg, 210 F. Supp. 272, 274 (E.D. Pa. 1962). Moreover, this
theory was fully tried by the government with the implied consent of the
defendants. The court may accordingly base its decision on this theory and may
deem the pleadings amended accordingly. MBI
Motor Company, Inc. v. Lotus/East, Inc., 506 F.2d 709 (6th Cir. 1974);
Smith
v. Ellerman Lines, Ltd., 247 F.2d 761, 766 (3d Cir. 1957).
I
further note that the government has elected not to press the averments
regarding the recovery of salary increases (paragraph 12-a-23 of the complaint),
the averments regarding Marvin Zalk (paragraph 12-a-24) and those regarding
Ralph Torraco (paragraph 12-a-25) in view of testimony that there was reliance
upon advice of counsel.
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Footnotes- - - - - - - - - - - - - - - - - [**69]
A.
Sometime during the late
1940's, Anthony Provenzano invited Salvatore Sinno to become associated with him
and others in a criminal organization, the Provenzano Group herein. Sinno
accepted this invitation. From this association, Sinno learned that the
Provenzano Group, operated as an organized racketeering enterprise, and, through
its leader, was a faction of a larger New York-based criminal organization. This
larger organization was at that time headed by Mike Miranda, who was serving as
"acting boss" while its former head Vito Genovese was imprisoned. Prior thereto
the organization was led by an individual whom Sinno identified as "Lucky"
Luciano.
The larger criminal organization of which the Provenzano Group
was a faction had a settled hierarchy. The positions which constituted this
hierarchy were "boss", "underboss", "captains", and "soldiers", which were also
known as "made members" or "button men". Anthony Provenzano was a part of this
hierarchy and held the position of "made member" within the larger organization.
Others who held such positions during Sinno's period of association with the
Provenzano Group included Toby D'Amico, Mike Sabella, Earl Collucio, Tony
[**70] Salerno, Peter LaPlaca, Bobby Manna, Gyp
DeCarlo, Nick Perry, Pete DiFeo and Jerry Catena (the latter four of whom were
"captains").
The associates or members of this larger criminal
organization were then permitted by its protocol to engage in a variety of
criminal activities, such as gambling, extortion, trafficking in stolen property
and the corruption of law enforcement authorities to ignore criminal violations,
but were prohibited from involvement in narcotics, prostitution and
counterfeiting. Pursuant to the directions of Anthony Provenzano, and apparently
in accordance with the larger organization's protocol, Sinno and others
participated in the commission of a number of criminal offenses indicative of
the relationship between the larger criminal organization and the Provenzano
Group. One such criminal offense was the operation by Sinno and others of an
illegal monte card game in New York City over a period of several years, from
which the larger organization received a "tribute" payment of three percent for
having allowed the game to operate. An illegal monte card game was also operated
in Hoboken over a period of time which involved the payment of [*305] money to [**71]
law enforcement authorities for "protection." Jersey City was the situs for the
operation of an illegal dice game over a several year period prior to 1961,
another criminal offense. Anthony Provenzano provided Sinno with $5,000 in
operating capital for the Jersey City game in exchange for a ten percent share
in the profits. n15
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n15 Anthony Provenzano also caused an
employer to place Salvatore Sinno's name on its payroll so that Sinno's tax
records would reflect a legitimate source for his income from the various
gambling activities seemingly undertaken at Anthony Provenzano's behest. This
provides another example of an act consistent with and reinforcing of the
organizational structure of the enterprise and which promoted both
organizational and individual well-being.
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In September of
1961, Salvatore Sinno disassociated himself from the Provenzano Group. At that
time, Nunzio Provenzano was an associate of the Provenzano Group and, like
Sinno, had been proposed for full membership in the larger criminal
organization. [**72] Nunzio Provenzano's
involvement in both organizations is highlighted by his presence at the "drop"
where, by prearrangement, Sinno "gave up" his truck to be "hijacked."
Following the period described by Salvatore Sinno, the Provenzano Group
continued to exist as a racketeering enterprise, notwithstanding the
incarceration of Anthony Provenzano between approximately the mid-1960's and
1970 and the incarceration of Nunzio Provenzano (as well as Salvatore Briguglio)
between approximately 1966 and 1969. First, I find that between approximately
1969 and 1977, Anthony Provenzano, Gabriel Briguglio, Stephen Andretta and
Thomas Andretta unlawfully conspired to and did conduct the affairs of an
enterprise (the Provenzano Group) through a pattern of racketeering activity,
consisting of multiple violations of the Taft-Hartley Act, 29
U.S.C. § 186, and involving both Local 560 and several carriers for Seatrain
Lines. Further, between approximately 1971 and 1980, Nunzio Provenzano and
others conspired to and did conduct the affairs of an enterprise through a
pattern of racketeering activity, again consisting of multiple violations of the
Taft-Hartley Act, and involving four interstate carriers. [**73]
The continued vitality and viability of
the Provenzano Group is further demonstrated by a number of pieces of
inferential evidence which, taken together, lend cumulative support to this
proposition. First, at a deposition on August 17, 1982, Andrew Reynolds, a
Business Agent for Local 560, invoked his Fifth Amendment privilege and refused
to answer when asked whether he knew Bobby Manna, and whether he had met with
Nunzio Provenzano and Bobby Manna at the Fountain Restaurant and Cafe, located
at the corner of Houston and Sullivan Streets in New York City. This meeting,
which had lasted for approximately one hour on July 15, 1980, had been observed
by the F.B.I. During Sinno's time, Bobby Manna had been a member of the
Genovese-led larger criminal organization, and had been a partner of Anthony
Provenzano and Salvatore Sinno in the Jersey City dice game. Bobby Manna had
also been held in contempt on July 19, 1971 for refusing to answer questions
concerning organized crime and racketeering. In
re Manna, 124 N.J.Super. 428, 307 A.2d 619 (App.Div. 1973). n16
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- - - - - - -
n16 While I may have inadvertently excluded this opinion
from evidence, I may, of course, take judicial notice of it.
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[**74]
During the August 17, 1982
deposition, Andrew Reynolds also invoked his Fifth Amendment privilege in
refusing to answer when asked whether he knew Matthew Ianniello, whether
Reynolds reported to Ianniello concerning his activities as an employee of Local
560, whether Ianniello and the "Genovese Family" control Local 560 through
Reynolds and others, and whether he had met with Nunzio Provenzano and Ianniello
on Mulberry Street on July 29, 1980. The three had been observed together by the
F.B.I. Matthew Ianniello is reputed to be a "captain" in the "Genovese Family"
and has been identified as a friend of Anthony Provenzano as well as an
acquaintance [*306] of Salvatore and Josephine
Provenzano and Robert Luizzi. Additionally, Salvatore Provenzano had testified
at a deposition on July 29, 1982, and in his testimony at trial that he knew
Matthew Ianniello through Anthony Provenzano and considered Ianniello to be a
friend of Anthony Provenzano.
Andrew Reynolds further invoked his Fifth
Amendment privilege in refusing to answer whether he knew Funzi (Frank) Tieri.
Salvatore Provenzano testified at his deposition that Frank Tieri is reputed to
be a significant organized crime figure. [**75]
One of his connections to Local 560 and the Provenzano Group is through Vincent
Passaro, who has been a Local 560 Business Agent for Local 84. Vincent Passaro
is, according to Thomas Reynolds, reputed to be the "son" of Frank Tieri.
This invocation of the Fifth Amendment privilege by Andrew Reynolds --
who was appointed to the position of Business Agent within Local 560 by Nunzio
Provenzano and retained in that position by Salvatore Provenzano -- is
admissible in a civil trial against both him and his coconspirators under Rule
601(d)(2)(E) of the Federal Rules of Evidence, as well as the Executive Board of
Local 560. In these circumstances I draw an adverse inference from his silence.
n17 See Baxter
v. Palmigiano, 425 U.S. 308, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976).
Specifically, I find that had he responded truthfully to those questions, his
answers would be incriminatory.
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-Footnotes- - - - - - - - - - - - - - - - - -
n17 I note that Andrew
Reynolds no longer holds the position of Business Agent.
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B.
During the past thirty years, Anthony Provenzano [**76] and other members of the Provenzano Group have
engaged in a pattern of criminal and other improper acts, the object of which
was to gain control over and to exploit the Local 560 Enterprise.
First,
between approximately January 1, 1952 and June 1, 1959, within the District of
New Jersey and elsewhere, Anthony Provenzano, while an official of Local 560,
extorted "labor peace" payoffs from Walter Dorn and his company, Dorn Transport,
Inc. of Rensselaer, New York. During this period, Anthony Provenzano held the
positions of Business Agent, and later, of President, and obtained a total of
$17,100 from Dorn. n18
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-Footnotes- - - - - - - - - - - - - - - - - -
n18 This pattern was to
some extent repeated when, between November 30 and December 12, 1961, Salvatore
Briguglio and Nunzio Provenzano attempted to extort labor peace payments
(attempted grand larceny) in the Braun Payoff Demand case, discussed
infra.
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Next, at the time of his nomination and
appointment as a Business Agent for Local 560, Anthony Provenzano directed
Salvatore Sinno and Earl Coluccio to [**77]
attend the membership meeting in question in order to intimidate and if
necessary discipline any "rambunctious people" -- meaning those members who
might presume to voice opposition to his appointment. Similar tactics were
employed by the Group in preparation for Local 560's January 10, 1960 election,
which was hotly contested. As one such step, Anthony Provenzano directed Nunzio
Provenzano, Thomas Reynolds and Robert Luizzi to "sign up" ineligible members in
order to increase the Group's voting strength. Salvatore Sinno, at Anthony
Provenzano's behest, persuaded some six of his friends to vote for the
Provenzano slate in that election, although each of them was, in fact,
ineligible to so vote. Salvatore Sinno himself was able to (and did) vote in the
1960 election because Anthony Provenzano had brought Sinno's membership "book"
up to date by falsifying entries to show that Sinno was a member of Local 560 in
good standing.
Third, in order to enhance his own power and that of the
Provenzano Group within Local 560, and apparently to punish what he regarded as
a breach of the Group's protocol, Anthony Provenzano recruited Harold "K. O."
Konigsberg and Salvatore Briguglio to kill [**78] Anthony Castellitto -- which they, together with
Salvatore Sinno and others, did on June 6, 1961. Prior to his "disappearance,"
Anthony Castellitto was one of the most popular members of [*307] Local 560. He had been, for example, the only
candidate to run unopposed in Local 560's 1960 election. Anthony Provenzano
considered Anthony Castellitto to be a serious threat to his control over Local
560 and felt that Anthony Castellitto might be assisting the opposition party
within Local 560. n19
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-Footnotes- - - - - - - - - - - - - - - - - -
n19 Anthony Provenzano
also expressed the belief that Castellitto had informed on him to law
enforcement authorities regarding the "labor peace" extortion of Dorn Transport.
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To carry out Anthony Provenzano's directive, Harold "K.
O." Konigsberg enlisted Salvatore Sinno and others sometime shortly before June
6, 1961 to assist him with the planned murder. n20 On June 6, 1961, in Ulster
County, New York, Konigsberg, Sinno, Salvatore Briguglio and others killed
Anthony Castellitto by striking him on the head with a blunt [**79] object and strangling him about the neck with a
cord. Thereafter, Anthony Provenzano rewarded Konigsberg for his part in the
Castellitto murder by paying him the sum of $15,000. Anthony Provenzano rewarded
Salvatore Briguglio for his part in the Castellitto murder by making him a
Business Agent in Local 560.
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-Footnotes- - - - - - - - - - - - - - - - - -
n20 Konigsberg, a reputed
loan-sharker, at that time operated a "claims collection" agency in the building
owned by Local 560 in Union City, New Jersey, and occupied those premises at the
sufference of Anthony Provenzano.
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On or about December 20,
1962, approximately one month after Anthony Provenzano had been indicted in the
Eastern Freightways case, the membership of Local 560 voted, upon the motion of
Michael Sciarra, to increase the salary of it