Order in response to Charles Majuri motion for production of notes of expert witnesses

In the Matter of Charles Majuri

Laborers' International Union of North America

Independent Hearing Officer

Docket No. 99-02D

Decided March 18, 1999

Order

This Order is in response to the Respondent's request for discovery in the above captioned matter. The hearing is scheduled for April 14, 1999.

1. The GEB Attorney has stated his intent to offer the testimony of Jack Elko, a retired New Jersey State Police member, as an expert in organized crime matters. The Independent Hearing Officer ("IHO") requests Elko to submit an affidavit stating with specificity what notes, reports of interviews, and surveillance reports he has referred to and is relying upon when forming his opinions about Charles Majuri. In addition, Elko should demonstrate the reliability of the unnamed informants he relies upon.

2. As a guide, the IHO refers the GEB Attorney to United States v. IBT, 745 Fed. Supp. 908, 914-916 (S.D.N.Y. 1990). In that opinion, the court discusses the procedure followed by the Teamster Independent Administrator ("IA") who holds an adjudicative position similar to the Independent Hearing Officer. The IA admitted into the record an affidavit by FBI Special Agent Peter Wacks in which Wacks gave an opinion that a particular individual, Dominick Senese, was a member of organized crime. In his affidavit, Wacks referred to a number of documents he had reviewed and interviews he had conducted. A copy of the Wacks affidavit is attached hereto as a reference. The IHO made a similar request to the GEB Attorney in In the Matter of John Matassa. Jr., IHO 98-43D, for an affidavit from John O'Rourke, who testified as an expert.

3. The GEB Attorney should be aware that if he calls any witness who relates the testimony of cooperating individuals, the GEB Attorney should provide a detailed background of those cooperating individuals. The information should include the cooperating individual's level of participation in organized crime, his reason to know of Majuri's alleged involvement, and any court cases in which the cooperating individual has testified.

4. Counsel for Majuri has also requested that "any source of information who is presently cooperating with the authorities" be brought to the hearing, including those in protective custody. The IHO does not have the power to require the Department of Justice to produce witnesses who are in the Federal Witness Protection Program. In this regard, the IHO realizes that the hearsay testimony of such witnesses presents a special due process problem. Normally the IHO will not require the GEB Attorney to produce prior

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statements of witnesses, on the grounds that a LIUNA disciplinary matter is not a federal criminal trial, and the discovery requirements of federal criminal procedure do not apply.

In the past two years however, the subject matter of LIUNA disciplinary hearings has become far more complex than the disciplinary hearings contemplated by the drafters of the LMRDA, when the disciplinary procedure of that statute was enacted. LIUNA hearings now often involve major organized crime figures, testifying in protected circumstances, about complex events covering time periods of five or more years.

5. As a due process safeguard, where the hearsay testimony of an organized crime figure, in protective custody, is offered in evidence, the IHO may require the GEB Attorney to produce the notes of interviews of the GEB Attorney or IG personnel who interviewed the individual. The GEB Attorney also may be required to produce any FBI 302 reports of interviews, or other similar law enforcement reports of interviews in the GEB Attorney's or IG's possession. The IHO specifically notes this is not a blanket rule, and such requests will be decided on a case by case basis.

6. The GEB Attorney is requested to notify the Respondent's Attorney and the IHO if any hearsay testimony of a person in the Federal Witness Protection Program will be offered in evidence in this matter. The IHO will determine if production pursuant to the foregoing discussion is required.

7. Respondent's attorney has also requested the names and addresses of any other witnesses the GEB Attorney intends to call at the hearing. A list of the names of potential GEB Attorney witnesses is required to be provided to Respondent's attorney seven days before the hearing by the IHO Rules. The witnesses' addresses do not have to be produced.

PETER F. VAIRA
INDEPENDENT HEARING OFFICER