In
the Matter of Salvatore Franco
Laborers’ International Union of North
America
Independent Hearing Officer
Docket No. 98-04D
Decided October 6, 1998
Order and Memorandum
This matter comes before the Laborers’ International
Union of North America (“LIUNA”) Independent Hearing Officer (“IHO”) pursuant to
the LIUNA Constitution and the Ethics and Disciplinary Procedure (“EDP”).
On February 11, 1998, Disciplinary Charges were filed by
the LIUNA General Executive Board Attorney (“GEB Attorney”) against Salvatore
Franco (“Franco” or “Respondent”).
The charges allege Respondent committed barred conduct proscribed by the
EDP in obstructing an investigation being conducted by the LIUNA Inspector
General (“IG”) and the GEB Attorney, being a member of the organized crime
syndicate known as the Gambino family of La Cosa Nostra (“LCN”) and knowingly
associating with LCN members or associates, which membership and association
affected the affairs of LIUNA.
The IHO held hearings in New York City, May 11, 1998 and
June 30, 1998. Respondent did not
appear on either date, but was represented by a team of attorneys. Respondent’s counsel stated Franco chose
not to attend. Post-hearing briefs
were filed on August 21, 1998 and reply briefs were filed on September 11,
1998.
The GEB Attorney called J. Bruce Mouw (“Mouw”), Kenneth McCabe (“McCabe”), and Jeffrey Shaffler (“Shaffler”) as expert witnesses.
J. Bruce Mouw
In 1976, Salvatore Gravano (“Gravano”, “Sammy” or “Sal”)
was inducted as a member of the Gambino family of LCN. GEB Attorney Exhibit (“GEB Ex.”) 9. At the time of Gravano’s arrest in
December of 1990, he was the Underboss of the Gambino family reporting to the
Boss, Gotti. Id. Gravano
began cooperating with the government on November 8, 1991. Id.
As a made member and former Underboss of the Gambino
family, Gravano has knowledge of the family’s interaction with construction
companies. Gravano also has
personal knowledge of the constituency and influence of the family in labor
matters, as well as the family’s involvement in the construction industry. Id.
Mouw was present the night Gravano was transferred from
the Federal Metropolitan Correction Center in New York City, into FBI
custody. Tr. 64. Mouw took Gravano’s initial statement
and was present at the numerous debriefing sessions during the initial weeks of
Gravano’s cooperation, as well as during the succeeding years while Gravano
continued as a government witness.
Id. Mouw spent many
hours questioning Gravano. Tr.
65. Mouw debriefed Gravano about
the crimes he committed, the crimes Gotti committed, murders ordered and
executed by the Gambino family, the members and associates of the family and the
general structure of the family organization including the members of each
crew. Id. Gravano gave Mouw information about
twenty-one capos and over 150 family members by particular capo and crew. Id.
Gravano testified in at least nine separate criminal
trials, a sentencing hearing and a civil Racketeer Influenced and Criminal
Organization (“RICO”) case in federal court in the Southern District of New York
involving organized crime involvement in the District Council of the Carpenters
Union. United States v. District
Council of New York City and Vicinity of the United Brotherhood of Carpenters
and Joiners of America, 90 Civ. 5722 (CSH) (S.D.N.Y.)(“Carpenters Consent
Decree”). Tr. 67. Mouw was present at every trial in which
Gravano testified. Tr. 68. Based upon his personal debriefings and
observing Gravano’s testimony, Mouw has never found Gravano to be untruthful in
the proceedings or to withhold information. Tr. 72. Mouw has found Gravano and the
information he provided to be reliable.
Tr. 73.
Because of safety concerns and his participation in the
Federal Witness Protection Program, Gravano was unavailable to testify in person
at the hearing in this matter. He
submitted a signed affidavit with the knowledge that its contents would be used
for disciplinary charges against Franco.
GEB Ex. 9. Two
investigators, Mouw and Thomas A. Vinton (“Vinton”), an IG investigator and
former FBI agent, interviewed Gravano and testified that they personally heard
Gravano describe the events mentioned in the affidavit and that the affidavit is
consistent with the information Gravano provided in his interviews. Both Mouw and Vinto testified at the
hearing in this matter and were subject to
cross-examination.
Respondent argues Gravano’s unsworn declaration fails to
satisfy the provisions of 28 U.S.C. ' 1746, which states in pertinent
part:
Wherever, under any law of the United States or under
any rule, regulation, order, or requirement made pursuant to law, any matter is
required or permitted to be supported, evidenced, established, or proven by the
sworn declaration, verification, certificate, statement, oath, or affidavit, in
writing of the person making the same … such matter may, with like force and
effect, be supported, evidenced, established or proved by the unsworn
declaration, certificate, verification, or statement, in writing of such person
which is subscribed by him, as true under penalty of perjury, and dated, in
substantially the following form:
(2)
If executed within the
United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)”
28 U.S.C. ' 1746 (emphasis added). Gravano’s affidavit begins with the
phrase “Salvatore Gravano hereby declares, pursuant to 28 U.S.C. § 1746, under penalty of perjury, as
follows[.]” The affidavit is both
dated “Executed this 7th day of May, 1998” and signed at the end. The language of the affirmation is not
crucial, as long as the person giving the statement or affidavit is aware that
he or she is affirming to tell the truth.
Respondent has raised issues regarding the validity of
Gravano’s affidavit regarding its authenticity, content, phraseology, and
form. Respondent alleges that the
affidavit is fraudulent because the layout of the unsigned version does not
match the signed version. This
argument is without merit. The
wording of both documents is identical, the difference in physical appearance is
likely due to a different computer printing or retyping. Respondent also argues that the name
“Salvatore Gravano” is typed on the
left side under the date of execution but the signature is not above the typed
name but off to the right side with a line drawn under it. This argument is without merit, clients
often sign documents in the wrong location. Respondent claims a discrepancy in the
confusion over whether or not a signed copy was available and the timing under
which a signed copy was produced. I
am satisfied with the GEB Attorney’s production of the signed document and
letter from the FBI Supervisory Special Agent stating that the affidavit
represents the substance of conversations with FBI agents and that Gravano
stated to the FBI that the signature is his own. See GEB Ex. 9C, Letter from
George D. Gabriel, Supervisory Special Agent, to Walter Mack, Associate GEB
Attorney (May 14, 1998).
I find the alleged discrepancies to be immaterial and
the affidavit to be corroborated by the testimony of Mouw and Vinton as well as
the report of interview. See
GEB Ex. 9B.
Dom Borghese (“Borghese” or “Fat Dom”) was a member and
soldier of the Gambino family, inducted in 1990. He became a government witness in
1995. Mouw had conversations with
Borghese regarding the Gambino family and was present at his
debriefing.
Mouw also debriefed several Colombo family members who
were cooperating witnesses including “Fat Sal” Miciotta (“Miciotta”), Johnny
Pate (“Pate”), and Carmine Sessa (“Sessa”), who was the Consigliere of the
Colombo family. These individuals
had personal knowledge of events based upon the Colombo family’s interaction
with the Gambino family. All the
individuals testified in prior government trials and the information they
provided has been proven to be trustworthy and accurate. Tr. 121-22. In union disciplinary actions arising
under the Teamsters Consent Decree, the court has given evidentiary weight to
hearsay declarations of LCN members that were related by an FBI agent. United States v. IBT (Cimino),
964 F.2d 1308 (2d Cir. 1992) at 1312, aff’g, United States v. IBT
(Cimino), 777 F. Supp. 1130 (S.D.N.Y. 1991). Among the factors the court considered
were the corroboration of the statements, that the reports painted a consistent
picture of the individuals, and that the statements matched the FBI agent’s
declaration in the same subject matter.
Id. The hearsay
declarations of Borghese, Miciotta, Pate, and Sessa were offered to form, in
part, the basis of Mouw’s testimony on the composition of the Gambino family
leadership and Franco’s status in paragraphs 54-57 infra. The statements corroborate each other,
are corroborated by Gravano’s testimony and match Mouw’s declaration in the same
subject matter, painting a consistent picture of the structure of the Gambino
family and Franco’s role therein.
Mouw also related information from a confidential
informant who he stated was reliable.
Tr. 82. The hearsay
testimony of unnamed informants is not permitted in LIUNA matters. An exception to the rule is that an
expert in organized crime, a law enforcement officer or former law enforcement
officer, may relate confidential informant testimony to support his opinion that
an individual is an organized crime member or that certain patterns or practices
are used by organized crime members.
Mouw’s testimony regarding his confidential informant was not offered for
such a purpose, and will not be considered.
McCabe is a criminal investigator with the United States
Attorney’s Office in the Southern District of New York, where he is assigned to
the Organized Crime and Terrorism Unit.
Tr. 240. Before working for
the United States Attorney, McCabe was employed by the New York City Police
Department for eighteen years including seventeen years in the Organized Crime
Unit of the Kings County District Attorney’s office. Tr. 242. To stay current with the activities of
organized crime, McCabe uses confidential informants and cooperating witnesses,
has liaisons with other law enforcement agencies and conducts interviews,
undercover investigations, physical surveillance, and electronic
surveillance. Tr. 243. McCabe has been qualified as an expert
witness over a dozen times in trials in the New York state Supreme Court in
Manhattan and Staten Island, the United States District Court in the Southern
and Eastern Districts of New York and New Jersey, hearings in the state courts
of New Jersey, and various federal and state grand juries. Id.
I find that McCabe is a qualified as an expert witness in organized crime matters particularly in the New York area.
Shaffler is a former federal agent for the United States
Department of Labor (“DOL”), Office of Labor Racketeering. Tr. 278. At the DOL, Shaffler spent time
investigating labor racketeering in the New York City area including
investigations of contractors suspected of being controlled, organized,
influenced, dominated or otherwise involved with organized crime. Tr. 278-79. Shaffler also had an assignment to the
President’s Commission on Organized Crime in 1984 where he served as an
adviser and testified before the
Commission on labor racketeering matters.
Tr. 279-80. Shaffler was
assigned to the Labor Racketeering Unit of the Manhattan District Attorney’s
Office from 1994 to 1997 where he became familiar with LIUNA Local 1018 and the
Pavers District Council. Tr.
280.
Shaffler related the testimony of four confidential
informants. I will not accept the
testimony of confidential informants as to the specific activity of Franco. I will accept Shaffler’s use of
confidential informants to form the basis of his expert testimony on the custom
and practice of unions influenced by organized crime, or other customs and
practice in the labor movement.
I find that Shaffler is a qualified witness, expert in
the labor field particularly as to the activities of the organized crime in
utilizing labor unions. I accept
Shaffler’s testimony on the custom and practice in labor
racketeering.
The GEB Attorney offered in evidence GEB Attorney
Exhibit 8, a chart purporting to illustrate the hierarchy of the Gambino crime
family as of November 1991. The
chart was created by federal prosecutors in November 1991 and introduced as
evidence in the federal trial of Gotti and Frank Locascio (“Locascio”) in
November 1992. Tr. 62-63. The chart was prepared from electronic
surveillance information and the Gravano debriefings. Although the chart was admitted in
evidence in that trial, it is derived from the testimony at that trial and is
specifically applicable to the issues and charges of that proceeding. It is unfair to admit it in this
proceeding for the truth of the matter asserted within its four corners, out of
context of that trial. I will not
consider GEB Attorney Exhibit 8.
Findings of Fact
Charge I: Obstructing an
Investigation
Between September, 1997, and January, 1998 the
Respondent, SALVATORE FRANCO has obstructed the Inspector General and the GEB
Attorney by failing and refusing to appear for sworn deposition by the GEB
Attorney in violation of LIUNA’s Ethics and Disciplinary
Procedure.
1.
In 1997, the LIUNA IG and
GEB Attorney investigated Franco for possible violations of the EDP. The allegations included Franco’s
membership and association with the Gambino organized crime family. At the time, Franco was the President
and Business Manager of Sheet Asphalt Workers, Local 1018 and the Business
Manager of the Pavers District Council.
2.
On September 2, 1997, the
GEB Attorney served Franco with a Notice of Deposition requiring him to appear
on September 30, 1997. GEB Ex.
2. At the request of Franco’s
attorney, the deposition was rescheduled for October 14,
1997.
3.
In October of 1997, the
GEB Attorney learned from Franco’s attorney that Franco was permanently retiring
from LIUNA. Franco’s attorney
stated that Franco was agreeable to stipulations and terms determined by the GEB
Attorney which would have accomplished Franco’s complete dissociation from
LIUNA. Franco later declined to
accept the GEB Attorney’s terms.
4.
On December 19, 1997 the
GEB Attorney served Franco with a Notice of Deposition requiring him to appear
on January 15, 1998. GEB Ex.
3. According to Franco’s attorney,
Franco failed to appear because he had a kidney stone. Tr. 397. The parties agreed to an adjourned date
of January 28, 1998.
Id.
5.
Franco failed to appear at
the scheduled deposition on January 28, 1998. Franco’s attorney stated he had asked
the GEB Attorney to issue a third Notice of Deposition which the GEB Attorney
refused to do. Id. Franco’s attorney told the GEB Attorney
that Franco required a specific notice to appear. Tr. 400. I find that any further notices were
unnecessary. The date of deposition
was changed at the request of Franco’s attorney. If Franco was in fact willing to appear,
the date of the deposition could have been re-scheduled as is the customary
practice.
6.
Franco offers as evidence
of his cooperation the fact that he met with IG inspectors on four
occasions. Respondent Exhibit (“R.
Ex.”) J 1-4. These acts do not
excuse his failure to attend the formal deposition.
Charge II: Barred Conduct-Membership in the Gambino
family of La Cosa Nostra
Respondent SALVATORE FRANCO has committed “barred
conduct” under LIUNA’s Ethics and Disciplinary Procedure; to wit, he has
belonged to, and thus has knowingly associated with members and associates of,
the organized crime syndicate known as the Gambino family of La Cosa
Nostra.
Charge III: Barred Conduct-Knowing Association With
La Cosa Nostra Members or Associates
Respondent SALVATORE FRANCO has committed barred conduct
under LIUNA’s Ethical Practices Code and Ethics and Disciplinary Procedure; to
wit, he has knowingly associated with members and associates of the organized
crime syndicate known as the Gambino family of La Cosa Nostra, including among
many others, Paul Castellano, John J. Gotti, Salvatore Gravano, Frank Locascio
and Gregory DePalma.
Membership In and Association With Members of the
LCN
7.
The LCN is a tightly
structured criminal organization which operates in various cities throughout the
United States. It is in the
business of crime for a profit.[2]
8.
The LCN is comprised of
groups of individuals organized into entities called families. GEB Ex. 9.
9.
A number of such families
are located in the New York area, including the Gambino family. GEB Ex. 9.
10. The hierarchy of the
leadership of each LCN family consists of the head (the “Boss”), his assistant
(the “Underboss”), and an advisor (the “Consigliere”). The Boss, Underboss, and Consigliere
oversee the activities of LCN members and their associates.
11. LCN members within each
family operate in small groups called “crews” which are headed by men called
“capos,” “captains,” or “crew bosses.”
Id.
12. A “made member” has
undergone an initiation ceremony which includes specific rituals and formalities. Members share in the organization’s
profits and operate their own crews.
In Re: Trusteeship Proceedings Chicago District Council, IHO Order
and Memorandum, 97-30T (February 7, 1998) at 31; see also Fallacara, 96-65D
at 4. Made members sometimes are
also known as “soldiers,” “wiseguys,” “friends of ours,” and “good
fellows.” GEB Ex. 4.
13. An
“associate” is an individual who works on behalf of made members and facilitates
organized crime activities.
Associates either run day-to-day illegal operations for the crime
families or are in legitimate business under the control and influence of
organized crime. See
Chicago District Council, IHO 97-30T at 32; see also Fallacara,
IHO 96-65D at 3. Associates are sometimes referred to as
“connected” men. GEB Ex. 4,
9.
14. The terms “with us” or
“with me” are used by members and associates to refer to the relationship
between a superior and subordinate member.
For example, a member may say, “He is with me” or “He is with
Gotti.” Members and
associates often refer to each other as “friends,” e.g., “He is a friend of
ours.” GEB Ex.
4.
15. As
part of its criminal conduct, the LCN has infiltrated and controls numerous
business organizations and labor unions.
In these ventures “…it employs illegitimate methods of monopolization,
terrorism, extortion, tax evasion to drive out or control lawful ownership and
leadership and to exact illegal profits from the public.” President’s Commission on Law
Enforcement and Administration of Justice-Task Force Report: Organized Crime at 187 (1967);
see also Blakey & Goldstock, “On the Waterfront:” RICO and
Labor Racketeering, 17 Am. Crim. L. Rev. 341 (1980).
16. The LCN of today has its
origins in secret societies formed in Sicily and southern Italy which later
emerged in the United States toward the end of the 19th century. Symposium—Perspectives on Organized
Crime, 16 Rutgers L. J. 439, 440-41 (1985) (“Symposium”). In the late 1930’s, a power struggle
erupted between Sicilian and non-Sicilian groups when one criminal group
attempted to form an alliance of all the groups involved in bootlegging. Id. at 441 (citing D. Cressey,
Theft of a Nation: The Structure
and Operations of Organized Crime in America (1969)). The struggle led to a violent, private
vendetta known as the Castellammarese War in New York. Id. The war lasted from April of 1931
through September of 1931. During
September of 1931, within three days, 40 Italian or Sicilian organized crime
leaders were murdered. Id.
at 442. The present day structure
of the Italian-Sicilian organized crime organization in the United States was
created by a peace treaty ending the Castellammarese War. The resulting confederation of crime
families became known as the LCN.
Id. The Gambino
family is one of those families.
17. The Gambino family took
its name from Carlo Gambino, one of its first Bosses. GEB Ex. 4. Its purpose is to earn money through
crime and infiltration of
legitimate business and labor unions. GEB Ex. 4, 9. The Gambino family has engaged in
violent acts against those who obstructed its activities including promising
retribution against those who provided information about its activities to law
enforcement. GEB Ex. 4. As a result of its reputation for
violence, the Gambino family has been able to conduct its criminal affairs
efficiently to the benefit of members and associates of the family. Id.
18. Each capo in the Gambino
family is responsible for supervising his crew’s criminal activities and
providing crew members and associates with support and protection in return for
which the capo receives a share of the earnings of the crew’s members and
associates, referred to as “tribute.”
GEB Ex. 4, 9.
19. In the Gambino family
hierarchy, the highest ranking members above the capos are referred to as the
Administration. Id. The Administration includes the Boss,
Underboss, and Consigliere.
Id. The
Administration supervised, supported, disciplined, and protected the capos,
members, and associates and received regular reports about their
activities. Id. In return, the Boss, Underboss and
Consigliere received part of the earnings of each crew, also referred to as
“tribute.” GEB Ex. 4.
20. Membership in the Gambino
family typically remained constant but the Administration’s structure was
sometimes modified to meet special situations such as the incarceration of
high-ranking family members.
Id.
21. Paul Castellano
(“Castellano”) was the Boss of the Gambino family in the 1970’s and 1980’s. Castellano was murdered in December 1985 and was succeeded as Boss by John
Gotti in January 1986.
22. In April 1992, Gotti and
Locascio, the acting Consigliere, were convicted of RICO violations, including
five murders, for which both are now serving life sentences. Tr. 74.
23. During the incarceration
of Gotti and Locascio, supervisory authority over the affairs of the enterprise
was exercised by several members including Gotti’s son, John A. Gotti.[3] GEB Ex. 4.
24. John A. Gotti’s
Administration responsibilities included resolving disputes among Gambino family
members and associates, and directing the family’s criminal activities. Id. Before and after assuming his
supervisory power, John A. Gotti was a Gambino family capo supervising his own
crew of members and associates.
Id.
25. John A. Gotti is currently
under indictment and awaiting trial. Tr. 24-25. See also GEB Ex.
4-7.
Franco’s Membership In and Knowing Association with the
LCN
26. In November of 1991,
Gravano told Mouw that Guiseppe “Joe” Arcuri (“Arcuri”) was a capo in his crew
and that Arcuri had been a long-time capo in the family from the early 1960’s
onward. Tr. 77-78.
27. Franco is Arcuri’s
nephew. Tr. 78, 539-40. See also GEB Ex. 9. Gravano identified the members of
Arcuri’s crew as Franco, Franco’s brother, Joe Franco, and Alphonso
Spitaleri. Tr. 78.
28. Gravano stated that, based
upon his personal knowledge as a member and Underboss of the Gambino family, he
knew Franco was a made member of the Gambino family and had been specifically
introduced to Franco as such. GEB
Ex. 9. Although Gravano did not
know the exact date of Franco’s induction, he stated that the induction most
probably occurred in the late 1970’s and definitely before Gotti became Boss in
1985. Id. In addition, as of November 8, 1991, the
starting date of Gravano’s cooperation with the government, Gravano knew Franco
was still a soldier in the crew of Gambino family capo Arcuri. Id.
29. Gravano stated that Arcuri
controlled a labor union in Queens, Local 1018, through Franco. Id.
30. To avoid law enforcement
penetration of its activities such as wiretaps and electronic “bugs” of the
family’s criminal activities, Gambino members and associates conducted meetings
in the evenings, often on Wednesday and typically at social clubs, diners and
restaurants in New York City which they considered safe. GEB Ex. 4.
31. The Ravanite Social Club
(“the Ravanite”) is located at 247 Mulberry Street in New York City. Tr. 86. Mouw stated that from his knowledge of
the history of the Gambino family, the first proprietor of the club in the early
1950’s was Armando Rava, a capo in the Gambino family. Tr. 86-87. Later, the club became the headquarters
for an Underboss of the Gambino family and in the 1960’s to 1985 it became one
of the more active social clubs for the Gambino family. Tr. 87.
32. The FBI had the Ravanite
under physical surveillance from April 1988 to June 1990. Tr. 89-90. For periods of time the Ravanite was
under daily surveillance.
33. When Gotti became Boss in
early 1986, he made the club the unofficial headquarters of the Gambino
family. Tr. 87. FBI surveillance determined a pattern
over several years where every Monday through Friday Gotti went to the Ravanite
at approximately six p.m. and remained until approximately nine p.m. Tr. 88. During the three hour period of time
Gotti was present at the club, approximately half a dozen capos and numerous
soldiers and associates usually appeared.
Id. It was not
unusual for fifty to sixty members and associates of the Gambino family to be at
the club while Gotti was present.
Id.
34. The Ravanite was not open
to the public. Tr. 91, 247. Admission to the club was strictly
monitored, and only associates or members of the Gambino family and, on
occasion, their defense attorneys were permitted entrance. Tr. 91-92, 247.
35. Mouw testified that
surveillance he personally conducted revealed that during 1988 through 1990
Franco visited the Ravanite regularly every Thursday night. Tr. 88-90. Franco usually arrived at the club
accompanied by his uncle Arcuri, Frank D’Apolito (“D’Apolito”), Mario Traina
(“Traina”), and/or Joe Marino (“Marino”).
Tr. 91 Mouw testified that
in his opinion D’Apolito was a capo in the Gambino family, had plead guilty to
loan sharking and died in 1997, Traina was also a capo and is now deceased, and
Marino was a soldier in the family.
Tr. 75, 76, 91. I will accept Mouw’s descriptions of the
these men based upon his expert opinion.
FBI surveillance revealed that every time Franco went to the Ravanite,
Franco entered the club. Tr.
92. On cold days, only guards
remained outside the club.
Id. On warm
days, a group of Gambino members and associates would congregate in front of the
club. Id. Franco followed a pattern of parking his
car down the street from the club, walking to the club and making a demonstration of kissing, hugging and
shaking hands with the group in front.
Id. After these
formalities were completed, Franco and Arcuri would enter the club and remain
until Gotti and his entourage left.
Id. McCabe
corroborated Mouw’s testimony and stated that he personally had seen Franco
conversing outside the Ravanite with Gotti and Gravano. Tr. 245, 272.
36. Franco was observed in
conversation outside the Ravanite with the following members of the Gambino
family: Salvatore Gravano, John
Gotti,[4]
John A. Gotti Jr.,[5]
Joseph Corrao,[6]
John D’Amico, Pasquale “Patsy” Conte,[7]
Anthony Ciccone, Frank “Frankie” D’Apolito,[8]
George DeCicco, James Failla,[9]
Thomas “Tommy” Gambino,[10]
John “Jackie” Giordano, Peter Gotti, Ralph Mosca,[11]
Louis Vallerio, Ignatio Algona, Dominick Nesci, and Anthony Morelli. Tr. 92-93,
247-48, 250-52. The Gottis, Corrao,
Gravano, Ciccone, Conte, D’Amico, D’Apolito, DeCicco, Failla, Gambino, Giordano,
Marino, and Mosca were, as of November 1991, capos or higher ranking members of
the Gambino family.
37. Mouw stated that Franco
was a “regular” at the Ravanite club and had been documented, either by physical
surveillance or video, as being present at the club approximately fifty (50)
times in a two or three year period.
Tr. 114-15. McCabe also
testified that he observed and photographed Franco at the Ravanite club. Tr. 245. See also GEB Ex. 10
(photograph Franco, Arcuri, D’Apolito, Morelli in front of Ravanite Club); GEB
Ex. 11 (photograph Franco and Arcuri in vicinity of Ravanite Club); GEB Ex. 12
(photograph Franco conversing with Peter Gotti, Ignatio Algona, Gotti, D’Apolito
in front of the Ravanite Club); GEB Ex. 13 (photograph Franco, Arcuri,
D’Apolito, Morelli, and Dominick Nesci at the Ravanite Club).
38. McCabe testified during
the course of his surveillance, he observed Franco in the company of Gambino
family members over one hundred (100) times including observing Franco at the
Ravanite club over fifty (50) times.
Tr. 245, 248. Mouw’s and
McCabe’s testimony corroborate Gravano’s statement that he knew Franco and
Arcuri regularly attended meetings at the Ravanite Club. GEB Ex. 9.
39. Franco was observed
driving a vehicle registered to Local 1018 to and from the Ravanite club and
other locations. Tr. 257; see also GEB Ex.
17.
40. Based upon information
provided to him as supervisor of the FBI Gambino squad, Mouw testified that on
certain occasions there would be “command performances” when all the capos and
soldiers were summoned to celebrate an occasion and give money to Gotti. Tr. 113. Each capo and crew would give Gotti an
envelope with several thousand dollars the amount depending on the crew’s
influence and Gotti would receive an additional amount personally from each
capo.[12] Id. FBI surveillance revealed that Franco
was present at command performances such as Christmas Eve 1988 and 1989, Gotti’s
birthday in October, and Thanksgiving eve 1988, 1989, and 1990. Tr. 113-14.
41. As a security precaution,
conversations between LCN members and associates are often held in areas such as
public streets believed to be beyond the reach of wiretaps or other law
enforcement listening devices. Such
conversations are known as “walk and talks.” GEB Ex. 4.
42. Mouw testified that on one
occasion, in May or June 1989, he personally saw Franco and Gravano leave the
club and walk together while engaged in conversation. Tr. 93. Gravano acknowledged he had taken such
walk and talks with Franco and Arcuri.
GEB Ex. 9.
43. The Taorima Restaurant
(the “Taorima”) is located in Manhattan, a few blocks away from the Ravanite on
the same street. Tr. 275. The FBI often saw members from the
Ravanite gather to walk in groups from the Ravanite to the Taorima. Franco was often among those observed
gathering at the Ravanite to walk to the Taorima. Id.
44. The Bergen Hunt and Fish
Club (the “Bergen Club”) is located at 98-04 101st Avenue, in the borough of
Queens, New York. Tr. 115, 245,
255. FBI surveillance revealed the
Bergen Club was Gotti’s crew’s personal social club while Gotti was a capo and
the headquarters for his criminal empire when Gotti became Boss. Tr. 115. Gotti held meetings and ran his crew
from the club. Tr. 117, 255.
45. When Gotti was Boss he had
weekly Saturday crew meetings at the Bergen Club. Tr. 115. Capos, loyalists, and other individuals
ambitious to advance with the Gambino family went to the Bergen Club to meet and
eat with Gotti for several hours.
Tr. 115. Approximately half
a dozen capos were regularly present as well as Gravano and sometimes
Locascio. Tr.
116.
46. The Bergen Club was not
open to the public; entrance was restricted to LCN, Gambino and Colombo
families, members, and associates.
Tr. 116, 255. A club
caretaker was always present in the front of the club to ensure that no
strangers entered. Tr.
117.
47. Mouw testified that from
1987 to 1990 the FBI observed Franco visiting the Bergen Club on numerous
occasions with Arcuri and sometimes with D’Apolito. Tr. 116. McCabe testified that he once personally
observed Franco at the Bergen Club in the company of Arcuri. Tr. 255-56.
48. McCabe testified that he
observed Franco at locations frequented by members of organized crime other than
the Ravanite and the Bergen Club, such as the Taorima and the Hawaiian
Moonlighter Social Club in Manhattan and various catering halls and funeral
parlors. Tr. 245. McCabe said that his team surveilled and
photographed wakes attended by LCN members and offered photographs in support of
this statement. Tr. 253. See also GEB Ex. 14
(photograph Arcuri and Franco at funeral home in Brooklyn, wake of Leonard
DeMaria’s mother); GEB Ex. 15 (photograph Joseph Marino, Arcuri, and Franco at
wake in Brooklyn); GEB Ex. 16 (photograph Joseph Marino, Franco, Arcuri, and
unidentified person at Cusimano and Russo Funeral Home, Brooklyn). I do not find Franco’s attendance at
wakes and funerals where LCN members or associates attended to be probative of
his LCN status since there is no evidence his attendance was not related to his
own familial obligations. Ethnic
family obligations often transcend LCN obligations.
49. According to Gravano,
following the murder of Boss Castellano in December of 1985, a secret meeting
was called at Caesar’s East restaurant in Manhattan to canvas all the capos to
discover who had killed Castellano.
Tr. 111, 211-12; see also GEB Ex. 9, 9A, 9B. The meeting was chaired by Consigliere,
Joseph N. Gallo. Id.
50. Due to his hospitalization
at the time, Arcuri was the only capo not present at the Caesar’s meeting. Id. His nephew, Franco, went to the
restaurant and stated that he had been told by Arcuri to represent him at the
meeting. Id. Gravano told Franco that the meeting
being held downstairs was only to be attended by capos and that Gotti had
ordered Franco to remain in the upstairs portion of the restaurant and not leave
until the conclusion of the meeting.
Id. The GEB Attorney
offered the testimony of Mouw that an informant who was present at the meeting
cooborated Franco’s presence. I do
not credit this informant’s statement.
51. In April 1990, John A.
Gotti was married in Manhattan. Tr.
138. The wedding was a command
performance and every capo, soldier and many associates were present and gave
money to the bride and groom.
Id. In 1997, the
State Organized Crime Task Force, during an authorized search of Gotti’s house,
discovered a list of all the persons who had contributed money to the wedding.
Tr. 138; GEB Ex. 7, 7A. This
particular list was admitted into evidence at John A. Gotti’s bail hearing. The United States Attorney attested that
it was the wedding list by Gotti’s own admission. GEB Ex. 7, 7A.
52. Mouw testified the wedding
corresponded in time with the FBI investigation of the Gotti case. Tr. 143; The list is organized by capo and the
corresponding crew members. Tr.
143; See also GEB Ex.
7B. The FBI determined that the
list reflected the capo and crew organization of the Gambino family at the time
of the wedding.
Id.
53. On the wedding list the
name “Sal Arcuri 4,000” appears, followed by the names “Sal Franco 500” and “Joe
Franco 500,” which would correspond to Arcuri’s rank as capo and the Francos’
positions as soldiers. GEB Ex. 7B. [13]
54. After Gotti’s conviction
on April 2, 1992 and sentencing in June 1992, Gotti named a Committee (the
“Committee”) to run the family. Tr.
117. See paragraph 57,
infra. Gotti appointed the
Committee because he wanted to continue running the family from prison and did
not want to risk a permanent Underboss or Consigliere taking over the family in
his absence. Tr. 118. The Committee consisted of John A.
Gotti, James Failla (“Failla”), and Arcuri. Tr. 117-18. At the time, Gravano was serving as
Underboss. Tr. 118. The acting Consigliere, Frank Locascio,
had also been incarcerated.
Id. The Committee
functioned as the administration of the family and also functioned as a
replacement for an Underboss or Consigliere, handling all the day-to-day
operations of the family for Gotti.
Id. All the capos of
the family were required to report to the Committee for their assignments and
instructions.
Id.
55. Within the next two years,
the Committee composition changed.
Tr. 119. In 1993, Failla was indicted and replaced by another capo, Jack
“the Nose” D’Amico Id. In
1994, Gotti named his son, John A. Gotti, as acting Boss. Id. Gotti also replaced Arcuri with Peter
Gotti and added Nicky Corozzo (“Corozzo”).
Id. The final
three-man Committee was Corozzo, Peter Gotti, and D’Amico. Id. Because of his family seniority,
Arcuri maintained his Committee status and was called in for special meetings of
the Committee for advice; but Arcuri was not part of the day-to-day
operation. Tr. 120.
56. Respondent offered a
newspaper article in which Mouw was quoted to discredit Mouw’s testimony. Respondent’s Exhibit (“R. Ex.). The article does not mention Arcuri and
lists a different composition of the Committee as related by Mouw in this
hearing. I do not find the article
to detract from Mouw’s testimony.
The only statement the article directly attributed to Mouw is that
D’Amico and Peter Gotti “had been running the family” with John A. Gotti, as
acting Boss. The statement is
consistent with Mouw’s testimony at the present hearing. Furthermore, the article, written in
June 1998 about current events, does not indicate which time period Mouw
discussed with the interviewer.
Respondent also claims the article quotes “federal and state
investigators” as stating different dates about the Committee composition than
the dates given in Mouw’s testimony.
I do not find that the news report rises to the level of specificity to
be considered impeachment material.
57. Due to Arcuri’s Committee
status, Franco was promoted to an acting capo of the family, handling disputes
with other capos or other families.
Tr. 120. Mouw testified that
as of his retirement from the FBI in January 1998, Franco remained an acting
capo. Id. Mouw’s testimony about the composition
of the Committee and Franco’s position as captain, forming the basis of
paragraphs 54-57 supra, comes from several sources including his own
investigations and observations, as well as testimony from cooperating witnesses
such as Gravano, Borghese, and several members of the Colombo family including
Miciotta, Pate, and Sessa.
Effect of Franco’s LCN Membership on
LIUNA
58. Gravano’s affidavit states
that among the Gambino family controlled unions are Local 1018 and the Pavers
District Council and that these entities are controlled for the Gambinos by
Franco who is a Gambino family member and a union officer. GEB Ex. 9.
59. Gravano told Vinton he
knew Franco was in the paving business.
GEB Ex. 9B. Shaffler
testified that in the metropolitan New York area, Locals 1018 and 1010 had
jurisdiction over asphalt paving involving the surface and subsurface. Tr. 294.
60. Shaffler testified that in
the paving industry, collective bargaining agreements contain various provisions
as to the size of work crews and rules and regulations in the workplace. Tr. 289. In Shaffler’s expert opinion one object
of payoffs to union officials is to cut the size of the work crews required by
the collective bargaining agreement.
In addition, the contractor may use workers who normally are restricted
to one job, for several different
positions, thereby eliminating the need for an extra laborer. Id. These arrangements permit substantial
savings.
Id.
61. Gravano told Vinton that
one method employed by the Gambino family to control the construction industry
was using a bid-rigging cartel of paving contractors who bid on specified
jobs. Tr. 217. The contractors were told who was
allowed to submit a winning bid.
The contractors would alternate being the lowest bidder. Id. In return for participating in the
group, the contractor paid money to a designated person such as the local union
business manager. Tr. 218-19. The
local union official sent the money up the LCN chain of command to the Boss. The
Union then permitted the use of non-union workers and other short cuts to the
collective bargaining agreement.
Id.
62. Gravano stated that in
late 1970 or early 1980, Castellano ordered Gravano to murder an asphalt paving
contractor, Perez, from the Perez Interboro Asphalt Company, who had repeatedly
underbid a cartel of contractors which had been paying kickback monies to
Castellano through Business Manager Franco and his uncle Arcuri in return for
being able to rig the bids. GEB Ex.
9. Castellano was upset because
Perez won the contracts, thereby
eliminating Franco’s and Arcuri’s need to demand kickbacks for controlling the
bids. As a result, Castellano was
denied his piece of the action. Tr.
205. Gravano set up two meetings
with Perez intending to kill him but Perez failed to attend the first meeting
and before the second meeting the murder contract was cancelled by
Castellano. Tr. 206-07; see also GEB Ex. 9.
63.
On one occasion after
Castellano’s murder, Gravano learned that Franco had received money from a
contractor and had kept the money for himself. At one of the meetings at the Ravenite,
Gravano asked Gotti if he had received his share of the payoff. Gotti said he had not and told Gravano
to ask Franco and Arcuri about it when they arrived at the Ravenite that
evening. Upon their arrival Gravano
took Franco and Arcuri for a walk outside, and inquired why Gotti had not
received his share of the payment.
Franco told him that in fact he had received $30,000 but it was part of a
fund collected from all contractors for Gotti’s Christmas gift. Gravano related the conversation to
Gotti, who verified the incident with Arcuri and gave his approval. GEB Ex. 9.
64. Gravano indicated that on
another occasion, one or two months later, he had been approached by Franco
outside the Ravanite because Franco wanted to know the proper protocol for
delivering an envelope of money to Gotti.
Id. Gravano told
Franco to personally place it on the table in front of Gotti. Id.
65. Gravano stated that the
Gambino family controlled the concrete industry. GEB Ex. 9B. He described an incident where Franco
planned to be partners with two individuals in the concrete industry involving a
$100,000 fee and kickback of three dollars per yard. Id. The partnership required Gotti’s
approval. Gotti delegated to
Gravano the responsibility for meeting with the individuals involved. Id. Because of a conflict between two
concrete companies, both of which were making payments to the Gambinos, Gravano
attended several meetings in an attempt to settle the conflict. Id. Franco initially appeared at the
meetings but stopped attending when Gravano told him it “didn’t look good for a
union official to be there.”
Id. The partnership
was not finalized.
Id.
66. Gregory DePalma
(“DePalma”) is a member of the Gambino family from the Bronx and on the crew of
a capo named Louie Ricco (“Ricco”).
Tr. 123. DePalma’s son, Craig DePalma, is also a
soldier in the Gambino family but in a different crew, reporting to John A.
Gotti. Tr. 124. Both DePalmas are currently under
indictment as members of the Gambino family for racketeering and extortion,
among other crimes. Tr. 258; see also GEB Ex. 4. Also indicted in the same case is Robert
Sanseverino (“Sanseverino”), an associate of the Gambino family who collected
loan sharking payments for DePalma.
GEB Ex. 4.
67. GEB Exhibit 6C is a
recorded conversation between DePalma and Sanseverino.[14]
68. In the recording, DePalma
discussed a conflict he had with Franco.
The conversation revealed that John A. Gotti permitted certain
contractors, including one owned by Ben Acocella, to use non union labor without
making payments to Local 1018, because the contractors had paid Gotti without
going through Franco. GEB Ex.
6B-C. Franco then lodged a
grievance against Acocella’s firm for $9,000 for pay and fringe benefits. GEB Ex. 6B 1.
69. The move by Franco might
have appeared as legitimate, except that Acocella’s company was not a signatory
to the collective bargaining agreement.
R. Ex. A. Acocella
complained to DePalma. GEB Ex.
6B-C.
70. In the conversation,
DePalma describes Franco as “a wise guy with us.”[15] Id.
71. DePalma said that Franco
asked him if the Committee knew about the dispute in Queens which Acocella. Id. DePalma said he told Franco the
Committee knew because Craig DePalma (his son) had put it “on the record” with
John [John A. Gotti].[16] Id.
72. DePalma said Franco asked
why Gotti was involved. DePalma
said he told Franco he was referring to Gotti’s son and that DePalma’s son
reported to Gotti’s son directly.
DePalma stated that John Gotti had told DePalma’s son to remind Franco
that it was his (John A. Gotti’s) union.
Id.
73. Gravano stated he believed
Franco “would continue to act on behalf of the Gambino family in whatever union
position that he held today.” GEB
Ex. 9.
74. Franco retired from the
union on May 1, 1998 as Business Manager of Local 1018 and Business Manager of
the District Council. Tr. 402. Although Franco is on retired status, he
is still a union member and retains his book. Tr. 403.
Discussion
The IHO must base his decisions on reliable evidence
through a review of what is probative and reliable. Reliable hearsay evidence is admissible
in labor arbitrations.
Associated Cleaning Consultants and International Brotherhood of
Printing and Allied Trades Local 327, 94 LA 1246 (1990); In the Matter of
Joseph P. Crincoli, IHO Order and Memorandum, 97-04D (Oct. 27, 1997);
Chicago District Council, 97-30T; Elkouri and Elkouri, How Arbitration Works
(4th ed. 1994). Hearsay
evidence has been admitted regularly in union disciplinary proceedings arising
under the Teamsters Consent Decree.
IBT (Cimino), 964 F.2d ; United States v. IBT (Senese &
Talerico), 941 F.2d 1292 at 1297 (2d Cir. 1991), aff’g United
States v. IBT (Senese & Talerico),745 F. Supp. 908 (S.D.N.Y. 1990). The test is whether the evidence is
reliable. Senese &
Talerico, 941 F.2d at 1298 (citing Richardson v. Perales, 402 U.S.
389, 402 (1971)).
The evidence of Franco’s membership in the LCN is strong
and corroborated. The supervisor of
the FBI Gambino family squad testified Franco was seen at the Gambino family
headquarters at least fifty times.
A criminal investigator from the United States Attorney’s Office during
the Gotti investigation saw Franco at the Ravanite, the Bergen Club, and other
Gambino family locations at least one hundred times, including over fifty times
at the Ravanite. Both witnesses
gave specific details naming known Gambino family members and associates seen in
the presence of Franco as well as submitting seven surveillance photographs,
four of which were accepted as probative.
Fourteen of the seventeen members specifically named by the witnesses as
being in the company of Franco were capos or higher-ranking LCN members. Gambino family Underboss Salvatore
Gravano, who later became a government witness testifying at nine trials all
resulting in convictions, also testified as to Franco’s associations. Gravano’s affidavit provides information
about Franco’s LCN activities and his LCN union connection. Gravano details four specific incidents
concerning Franco including meeting Franco’s son, Anthony Franco. Anthony Franco’s testimony in this
matter regarding whether he ever met Gravano was evasive. Franco’s name appeared below his uncle’s
on a list of wedding gifts those giving to John A. Gotti, Jr. A tape of a conversation played in
federal court relates Franco’s dispute with other LCN members over payoffs from
a contractor. In the conversation,
a known Gambino family member, describes Franco as “a wise guy with us.”
While some of the evidence presented may be hearsay, as
discussed above hearsay is acceptable if shown to be reliable. Each hearsay speaker is identified, and
the context of his conversation is corroborated by other conversations or
documents. I find that taken as a
whole the evidence discussed is highly reliable and the statements highly
corroborated.
Despite requested to do so by the IHO, Respondent chose
not to appear at either date of the hearing. Respondent’s main defense was affidavits
from five Local 1018 members, including two Franco family members, who stated
that to their knowledge there were no problems at the Local. See R. Ex.
D-H.
Barred conduct includes “knowingly associating” with
members of an organized crime family such as the LCN, and knowingly allowing an
LCN member or associate to influence a LIUNA officer. See EDP § 1.
Under the EDP, the term “knowingly associate” means that: (1) the union member knew the person with
whom he or she was associating was a member or associate of the LCN; (2) the
association related directly or indirectly to the affairs of the union; and (3)
the association was more than fleeting or casual. Id.
“[K]nowledge may be inferred from the duration and
quality of the association.”
United States v. International Bhd. Of Teamsters, 764 F.Supp. 797,
801-02 (S.D.N.Y. 1991), aff’d without opinion, 956 F.2d
1161 (2d Cir. 1992). Knowledge may
be established where the charged party reasonably should have known he was
associating with a member or associate of the LCN. “In the absence of direct evidence of
knowledge of the organized crime ties of an associate … such knowledge may be
inferred from the duration and quality of the association.” Investigations Officer v. Senese,
Decision of the Independent Administrator (July 12, 1990) at 37, aff’d,
United States v. Teamsters (Senese and Talerico), 745 F. Supp. 908
(S.D.N.Y. 1990), aff’d, 941 F.2d 1292 (2d Cir. 1991), cert.
denied, 502 U.S. 1091 (1992).
Franco’s association with the LCN was more than fleeting
or casual. Surveillance placing him
in the company of high ranking Gambino members spans several years and over a
hundred sightings. Franco met with
his uncle who was a known member of the Gambino family on a regular basis, in
locations not open to the public, during times when LCN business was being
conducted.
The LIUNA EDP incorporates by reference certain
exceptions to the definition “knowingly associate” as it appears and is defined
in the Carpenters Consent Decree.
See EDP, Section 1. I
have previously held that the provisions of the Carpenters Consent Decree apply
to any disciplinary charges brought before the IHO regardless of whether the EPC
is alleged as part of the charges.
Bifulco, 95-48D (1-28).
The Carpenters Exception provides in pertinent
part:
“Knowingly associating” does not include … (d) a Union member,
representative or official meeting or communicating with a relative by blood or
by marriage solely for social purposes.
As used in this paragraph, the term “relative” shall mean a lineal
descendant, stepchild, ancestor, sibling or spouse or child of a lineal
descendant, stepchild, ancestor, or sibling.