CORE TERMS: business
agent, conversation, preliminary injunction, pension, appointed, tape,
membership, injunctive relief, election, trusteeship, pattern of
racketeering activity, set forth, conspiracy, minute, permanent
injunction, co-conspirator, enjoining, enjoined, unlawfully, abetted,
elected, aided, special agent, aiding and abetting, endeavoring,
conspired, incumbent, lengthy, position of trust, organized crime
LexisNexis(R) Headnotes
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Headnotes
COUNSEL: Michael Chertoff, United States Attorney, Newark, New
Jersey, Robert C. Stewart, Assistant U.S. Attorney, Newark, New Jersey,
Colette R. Buchanan, Assistant U.S. Attorney, Newark, New Jersey, and
Jerome L. Merin, Assistant U.S. Attorney, Newark, New Jersey, (Attorneys
for Plaintiff).
Peter V. Ryan, Esq., West Orange, New Jersey, (Attorney for Defendant
Michael Sciarra).
Michael Critchley, Esq., West Orange, New Jersey, (Attorney for
Defendant Nominal Defendant-Intervenor Local 560 (I.B.T.).
Paul Montalbano, Esq., Schneider, Cohen, Solomon, Leder & Montalbano,
Cranford, New Jersey, (Attorneys for Local 560).
JUDGES: Dickinson R. Debevoise, United States District Judge.
OPINIONBY: DEBEVOISE
OPINION: [*396] [**1]
DICKINSON R. DEBEVOISE, UNITED STATES DISTRICT JUDGE
In this proceeding the government seeks a permanent injunction against
Michael Sciarra prohibiting him from further participation in the
affairs of Local 560. n1 The trial was conducted on July 16, 1990, but
only two witnesses were presented, and the bulk of the evidence upon
which a decision must be based was introduced upon applications for
preliminary injunctive relief.
Fed.R.Civ.P. 65(a)(2). This opinion constitutes my findings of fact
and conclusions of law.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Initially, the government sought the same relief against Joseph
Sheridan, but prior to the trial Sheridan and the government entered
into a consent decree and no further relief is sought against him.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**2]
A. PROCEDURAL BACKGROUND
This case is an outgrowth of, and now a part of, an action which the
government commenced on March 9, 1982 pursuant to
18 U.S.C. § 1964, the Racketeering Influenced and Corrupt
Organizations Act ("RICO Act")). Asserting that Local 560 of the
International Brotherhood of
Teamsters was being victimized by
racketeering activity, the complaint sought injunctive relief against
individual defendants Anthony Provenzano, Nunzio Provenzano, Thomas
Andretta, Stephen Andretta and Gabriel Briguglio, as associates of the
so-called "Provenzano Group." The complaint also sought injunctive
relief against the Local 560 Executive Board incumbents, Salvatore
Provenzano, Joseph Sheridan, Josephine Provenzano, J. W. Dildine, Thomas
Reynolds, Sr., Michael Sciarra and Stanley Jaronko.
On February 8, 1984, after lengthy hearings, the Honorable Harold A.
Ackerman issued an opinion,
United States v. Local 560, International Brotherhood of
Teamsters, 581 F. Supp. 279 (D.N.J. 1984), holding that
the
[*397]
Provenzano Group, through racketeering activity, had dominated and
exploited Local 560 for more than a quarter of a century. Judge Ackerman
issued a Judgment Order on March 16, 1984 in which
[**3] the
court: (a) enjoined Stephen Andretta and Gabriel Briguglio from having
any future dealings with and from endeavoring to influence the affairs
of Local 560 or any other labor organization or employee benefit plan;
(b) removed from office temporarily the remaining incumbent Executive
Board members (including Sciarra) and (c) imposed a trusteeship upon
Local 560 for such period of time as might be necessary to eliminate the
racketeer influence within Local 560 and to restore democratic processes
within the Union. Prior to trial, Anthony Provenzano, Nunzio Provenzano
and Thomas Andretta entered into consent decrees barring them forever
from participating in, or otherwise interfering with, the affairs of
Local 560 or any other "labor organization" or "employee benefit plan."
Judge Ackerman stayed his March 16, 1984 Judgment Order pending appeal.
In consequence Sciarra and the other members of the Executive Board of
Local 560 remained in office.
On December 26, 1985 the Court of Appeals for the Third Circuit affirmed
the judgment of the district court,
780 F.2d 267, and on May 27, 1986 the Supreme Court denied a
petition for certiorari,
476 U.S. 1140, 90 L. Ed. 2d 693, 106 S. Ct. 2247. On June 23, 1986
Judge Ackerman
[**4] lifted
the stay and implemented the Trusteeship provided for in the Judgment
Order. Thus, there was a period of approximately two years, four and
one-half months between Judge Ackerman's February 1984 opinion detailing
the racketeering activity and the 1986 appointment of the trustee and
ouster of the Executive Board. During that period, on October 19, 1984
to be precise, Sciarra succeeded Salvatore Provenzano (who had been
convicted of defrauding the welfare benefit fund and of receiving
kick-backs) as President of Local 560. What transpired during that
period is one of the principal subjects of the present proceeding.
Judge Ackerman appointed Joel Jacobson Trustee of Local 560 on June 23,
1986. On May 12, 1987 Judge Ackerman appointed Edwin H. Stier, Esq., in
place of Jacobson, and he appointed as Associate Trustee Frank
Jackiewicz. Stier undertook numerous measures to achieve his three
principal objectives: (a) conducting the day-to-day operations of the
union so as to provide effective representation to the membership, (b)
using his own background in conducting investigations to organize and
oversee inquiries into the affairs of the union and of the pension and
welfare funds,
[**5] and (c)
encouraging the members of Local 560 to throw off years of passivity in
the face of Provenzano domination and to participate in the affairs of
the union.
In early 1988 Stier concluded that although the forces conducive to an
uncoerced atmosphere within Local 560 were still fragile and still
threatened with organized crime efforts to regain control, an election
with suitable controls was feasible.
On February 11, 1988 Judge Ackerman extended the Trusteeship until
December 6, 1988 and ordered that general elections be held prior to
that date. Nominations were to be made at a membership meeting called
for October 9, 1988 and the election by secret ballot was scheduled for
November, ballots to be mailed to each member's home to reduce the
opportunities for undue pressure.
Certain developments came to the attention of the government which led
it to believe that unless injunctive relief were obtained, the result of
the election would be to return Local 560 to the control of organized
crime, specifically the Genovese Family. The strongest faction competing
for control of Local 560 was
Teamsters for Liberty, a group
which had never evidenced a critical view of the former leadership
[**6] and
which was dedicated to termination of the Trusteeship. That stance of
itself was no reason to interfere with the efforts of
Teamsters for Liberty. However, the
government had come into possession of evidence which led it to believe
that the Genovese Family had determined to regain control of Local 560
and that it had designated
[*398]
Michael Sciarra as the Person through whom it would exercise control.
Sciarra was a dominant force in
Teamsters for Liberty, and he and
Joseph Sheridan, also a former Executive Board member when the
Provenzano Group was in control, were
Teamsters for Liberty's candidates
for President and Vice-President, respectively.
Faced with that situation and with the fragile nature of Local 560's
democratic forces the Government instituted the present proceedings,
seeking an order prohibiting Sciarra and Sheridan from further
participation in the affairs of Local 560.
The government filed an Application for Additional Relief and obtained
an order to show cause in the original Local 560 case. Sciarra and
Sheridan raised a procedural barrier, namely that they were no longer
parties to the original action and that therefore relief could not be
sought against them by
[**7] way of
order to show cause. In light of this procedural question the government
served upon Sciarra and Sheridan a complaint embodying the same
allegations and requests for relief as were contained in the order to
show cause application.
I treated the government's application as a request to amend or
supplement the complaint pursuant to
Fed.R.Civ.P. 15(a) and (b). The relief requested was an order
preliminarily enjoining Sciarra and Sheridan from any further
participation in and from otherwise endeavoring to influence the affairs
of Local 560. By way of ultimate relief the government sought a
permanent injunction containing the same prohibition.
On September 14, 1988, after a six-day hearing, I granted preliminary
injunctive relief, barring Sciarra and Sheridan from seeking elective
office.
United States v. Local 560 (I.B.T.), 694 F. Supp. 1158 (D.N.J.
1988), aff'd,
865 F.2d 253 (3d Cir. 1988), cert. denied,
489 U.S. 1068, 109 S. Ct. 1345, 103 L. Ed. 2d 814 (1989).
Teamsters for Liberty substituted
as its candidates for President and Vice-President Sciarra's brother
Daniel Sciarra and Sheridan's nephew Mark Sheridan.
The election was carefully monitored and fairly conducted, and on
December 6, 1988 it was
[**8]
announced that the
Teamsters for Liberty slate had
won. As a result Daniel Sciarra and Mark Sheridan assumed the offices
for which they ran. Other
Teamsters for Liberty candidates
had been elected to complete the Executive Board. Stier, the Trustee,
turned over the day-to-day administration of Local 560 to the newly
elected officers and Executive Board but continued to serve in a
monitoring role.
On January 9, 1989 the newly elected Board appointed both Michael
Sciarra and Joseph Sheridan to fill business agent positions. Thereupon
the government obtained an order to show cause why they should not be
immediately barred from holding any appointed position within Local 560
pending the outcome of the trial in the matter. The government urged
that Sciarra and Sheridan gave the appearance of acting as
de facto
officers of the Local and of exercising actual power consistent with
that of incumbent Executive Board members, thus creating the risk of
reemergence of Genovese Family control of the Union.
At a hearing on January 30, 1989 I concluded that the development was
troubling but that I should not assume without more that the new
officers and Executive Board would not exercise full
[**9] control
of the Union or that they would be subject to Sciarra's domination and
influence. Consequently I denied the government's application at that
time.
The Trustee, pursuant to orders of Judge Ackerman, continued to monitor
closely the management of the Union. The new officers and Executive
Board members entered upon their duties. Subsequently, Sheridan entered
into a settlement with the government, resigning as business agent and
agreeing not to involve himself in the future in the management of Local
560. Michael Sciarra, however, remained highly involved in the Union's
affairs.
On February 6, 1990 the government moved once again to bar Sciarra from
holding any position of trust in the Union, asserting that evidence
relating to events during the previous 13 months showed that
[*399]
Sciarra had used his hold on a large and vocal segment of the Local 560
membership and his position as business agent to acquire control of the
Union. A second preliminary injunction hearing was held on March 20 and
21, and I concluded that Sciarra had indeed become virtually
de facto
President of Local 560. On May 8, 1990 I signed an order preliminarily
enjoining Sciarra from holding any position of
[**10] trust
within Local 560 and from attempting to influence its affairs.
I scheduled a trial on an expedited basis. The trial began on July 16,
1990. Relying upon the entire prior record in the litigation, the
government presented one additional witness. Prior to the trial Sciarra
submitted a list of approximately 70 witnesses he expected to call at
trial. However, when the time came only he testified. Thus, this matter
must be decided upon the facts established at the trial before Judge
Ackerman as set forth in his February 8, 1984 opinion and upon the
additional evidence presented at the two preliminary injunction hearings
and at the trial of the amended and supplemental complaint which seeks
relief against Sciarra.
B. THE FACTS
It must be emphasized at the outset that the present proceeding against
Sciarra is not a new action. It is a part of the larger action which was
and is still pending before Judge Ackerman. Many of the facts which are
relevant to this proceeding seeking relief against Sciarra were
established during the lengthy trial before Judge Ackerman. These facts
are set forth in the comprehensive opinion reported at
581 F. Supp. 279. That opinion will be referred
[**11] to as
"
Local 560 No. 1."
Certain of the factual findings recited in
Local 560 No. 1 bear
repetition.
As previously stated, there were two categories of defendants at the
time the original action was instituted. There were those individuals
who were members of the Provenzano Group. They included its leader
Anthony Provenzano and also Nunzio Provenzano, Stephen Andretta, Thomas
Andretta and Gabriel Briguglio. At various times there were other
members of the Provenzano Group who were either dead when the 1982
action was initiated or who for other reasons were not named as
defendants. The other group of defendants consisted of the 1982
Executive Board members Salvatore Provenzano, Sheridan, Josephine
Provenzano, Dildine, Reynolds, Sciarra and Jaranko, who were found to
have aided and abetted the Provenzano Group when it unlawfully acquired
and maintained control of Local 560 through a pattern of racketeering
activity in violation of § 1962(b) of the RICO Act.
The Provenzano Group was a subgroup of a larger New York-based criminal
organization once headed by Vito Genovese and commonly known as the
Genovese Family. The Genovese Family had a settled hierarchy of boss,
underboss,
[**12]
captains and soldiers. Anthony Provenzano was a "made member" within the
larger family and was, in effect, franchised 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.
Local 560 No. 1 at 305.
Matthew Ianniello was a captain or caporegime in the Genovese Family. He
was a friend of Anthony Provenzano and an acquaintance of one-time
Executive Board members Salvatore and Josephine Provenzano.
Local 560
No. 1 at 305, 306.
As Judge Ackerman found, "during the past thirty years, Anthony
Provenzano 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."
Local 560
No. 1 at 306. His opinion set forth the details of a multitude of
actions which the Provenzano Group took to maintain control of the Union
and to utilize that control to achieve its criminal ends such as -- (i)
extortion of payments for labor peace, (ii) intimidation of Union
members to control elections, (iii) murdering and assaulting opponents
in
[**13] the
Union, (iv) rewarding perpetrators of criminal acts with payments and
union positions, (v) voting union payments and pensions to
[*400]
Anthony Provenzano while he was in prison, (vi) recovering kickbacks and
fees for influencing decisions relating to Local 560 benefit, welfare
and pension plans, (vii) corruptly using enormous amounts of pension and
welfare funds for the Provenzano Group's own benefit, resulting in great
losses to those funds, (viii) using "actual and threatened force,
violence and fear of physical and economic harm, particularly the loss
of the ability to earn a livelihood -- to induce or coerce the
membership into surrendering their federally-protected rights to
participate in the affairs of Local 560 in a democratic manner," (ix)
systematically appointing and reappointing associates of the Provenzano
Group, particularly those with criminal records and a propensity to
violence to important positions within the Union, and (x) permitting
known and reputed criminals to frequent Local 560's offices.
Local
560 No. 1 at 306-316.
None of this, of course, could have taken place without the knowledge
and participation of the Local 560 leadership.
Sciarra was appointed a
[**14] Local
560 business agent in July 1972, holding that position until 1976. He
was reappointed in 1977 and became a trustee in 1981. He testified at
the original trial that Anthony Provenzano was his idol and that he
would welcome back Anthony and Nunzio Provenzano and Stephen Andretta
even if the charges against them were true. Even if it were true that
Anthony Provenzano had ordered the murder of Anthony Castellitto,
Sciarra testified that he would pray for the return of Anthony
Provenzano. Instances of Sciarra's conduct during, and attitude about,
the events of the Provenzano years are set forth in
Local 560 No.
1 at 302-303, 325.
Aiding and abetting, within the meaning of
18 U.S.C. § 2 is complicity with or facilitation of the criminal
conduct of another. In order to convict a defendant of aiding and
abetting the commission of a crime the government must prove (i) that
the substantive crime has been committed, (ii) that the defendant
charged with aiding and abetting that crime knows of the commission of
the substantive offense and (iii) that such defendant acted with intent
to facilitate the substantive offense.
Judge Ackerman concluded that the members of the Provenzano Group
[**15]
unlawfully conducted and participated in an enterprise (the Provenzano
Group) through a pattern of racketeering activity in violation of
18 U.S.C. §§ 1962(c) and 2; that the members of the Provenzano Group
unlawfully acquired and maintained an interest in and control of the
Local 560 enterprise through a pattern of racketeering activity in
violation of
18 U.S.C. §§ 1962(b) and 2; and that the members of the Provenzano
Group conspired to violate both sections 1962(b) and 1962(c) in
violation of
18 U.S.C. § 1962(d).
Further Judge Ackerman found that "during their respective periods of
incumbency [the Executive Board members, including Sciarra] did aid,
abet and facilitate the commission of the § 1962(b) violations. This
complicity was exhibited through their appointment and retention in
office of certain officials of Local 560 and in their discharge of
certain other duties, the collective impact of which has, in particular,
directly and substantially contributed to the existence of the climate
of intimidation within the Local."
Local 560 No. 1 at 335.
The Third Circuit in its opinion affirming Judge Ackerman, speaking in
terms of conspiracy rather than aiding and abetting, succinctly
[**16]
summarized the legal conclusions derived from the evidence at the
original trial.
". . . the Provenzano Group defendants were found by the
district court to have violated section 1962(b), (c), and (d),
having violated section 1962(d) by conspiring to violate both
section 1962(b) and 1962(c) . . . and the district court found, that
the Executive Board defendants violated § 1962(b), and
conspired to violate § 1962(b), in contravention of § 1962(d)."
780 F.2d at 294.
Judge Ackerman concluded that the captivity of Local 560 could be
terminated and the restoration of democratic control restored only if
the defendants who were members of the Provenzano Group were enjoined
from any future contacts with Local
[*401] 560
and if the Executive Board were removed. Thus, as described above, after
all appeals were exhausted, injunctive relief was granted and a trustee
appointed.
On three occasions in the last two years I have held evidentiary
hearings concerning Sciarra's continuing role in Local 560. My findings
upon the conclusion of the first application for a preliminary
injunction are set forth in
694 F. Supp. 1158 (
Local 560 No. 2); my findings upon
conclusion of the second application
[**17] for a
preliminary injunction are set forth in
736 F. Supp. 601 (
Local 560 No. 3). The evidence which was
submitted at the trial of the matter consisted of the testimony of
Special Agent Mark Dowd of the Federal Bureau of Investigation, the
testimony of Michael Sciarra and certain documents. Nothing that
developed at the trial leads me to alter the findings set forth in
Local 560 No. 2 or
Local 560 No. 3. In fact the evidence at
the trial fortifies those findings.
The totality of the evidence establishes that: (i) Since March 16, 1984
when Judge Ackerman signed the order granting relief the Genovese Family
has sought to maintain or reestablish its control over Local 560; (ii)
Michael Sciarra was the person through whom the Genovese Family sought
to effectuate its control; (iii) Sciarra accepted this role; (iv)
Sciarra has a dominating and forceful personality, and there are no
leaders or factions within Local 560 who are able to resist him and the
forces within the Union which he controls; and (v) unless Sciarra is
removed from any position within Local 560 he will assume control of the
Union, directly or indirectly, and thereby subjugate Local 560 once
again to the control
[**18] of the
Genovese organized crime family.
The continuing determination of the Genovese Family to maintain control
of Local 560 is evidenced by the tape recordings of three conversations
held in a construction shed in Edgewater, New Jersey and by one tape
recording of a conversation held at the Palma Boy Social Club in East
Harlem. When viewed in conjunction with the findings in
Local 560
No. 1, they demonstrate that the efforts of this organized crime group
to control Local 560 did not cease with the entry of Judge Ackerman's
order. The personnel changed somewhat, but many old faces continued to
appear.
I quoted extensively from those tape recordings in my opinion in
Local 560 No. 2, at pp. 1170-1178. I incorporate my earlier findings
with respect to the tapes herein and at this point will only summarize
them.
The first conversation took place on November 1, 1984 and involved
Milton Parness, Matthew Ianniello (a captain in the Genovese Family),
Stanley Jaronko (who served on Local 560's Executive Board with Sciarra)
and an unidentified male. Ianniello and Jaronko discussed continued
control of Local 560. Jaronko stated that he would "just lay low for
eighteen months" (the period
[**19] during
which it was expected a court-appointed trustee would be in office). It
was in that conversation that Ianniello directed Jaronko to "let Mike
run the show." The reference was to "Mikey Sciarra."
The second tape records a November 6, 1984 conversation between
Ianniello and Stephen Andretta (one of the defendants who was a member
of the Provenzano Group). It was a lengthy conversation concerning
numerous persons in the Genovese Family, past and pending criminal
endeavors, and the Local 560 RICO case. As to the situation at Local
560, Ianniello stated, "I think Mike Sciarra should take over there. Who
can you trust there, anybody else?" Andretta responded, "Mike and I were
born and raised together." Later Ianniello stated, "I'll send word to
[Mike]. I'll make sure that he knows that you can talk to him as one."
There followed this interchange:
Ianniello: No, no, I'll send word to Mike (unintelligible).
Andretta: I can see Mike any time you want me to.
Ianniello: You?
Andretta: Yeah.
The third tape records a December 7, 1984 conversation between
Ianniello, Stephen Andretta and an unidentified male.
[*402] That
too was a lengthy conversation which dealt with a number
[**20] of
subjects of significance in this case, one of the more important
subjects being the New England Motor Freight ("NEMF") contract. As to
the role which Sciarra was to play, the following is illustrative:
Andretta: I understand at this point. But with Mikey and then
you, you have direct control of Mikey.
Ianniello: Yeah.
Andretta: No question.
Ianniello: Yeah, he does what I tell him.
A fourth tape recorded conversation had taken place on November 28, 1984
in the Palma Boy Social Club in New York City. The participants were
then Genovese Family boss Anthony Salerno, Louis Gatto, one of his
caporegimes, Giuseppe Sabato and Cirino Salerno. The conversation turned
to Local 560, and the following exchange took place:
A. Salerno: But they threw everybody out of office there.
Sabato: Yeah, they're all out.
A. Salerno: Everybody's out.
Sabato: They're all out.
A. Salerno: So how can you control it?
Sabato: What do you mean? They got the control in there.
A. Salerno: Who is that now?
Sabato: Matty (Ianniello).
A. Salerno: Oh, we got a guy in there?
Sabato: Sure.
These taped conversations must be viewed in the
[**21] light
of the facts disclosed in the 1984
Local 560 No. 1 opinion. When
so viewed there can be no doubt that the Genovese Organized Crime Family
intended to maintain its control over Local 560 during the pendency of
the appeal from Judge Ackerman's March 16, 1984 Judgment Order, during
any period of trusteeship and thereafter. I concluded after the first
preliminary injunction hearing and I conclude now that the tapes
constitute strong evidence that this control was to be exercised through
Anthony Salerno's caporegime Matthew Ianniello and that Ianniello, upon
the advice of Stephen Andretta, selected Michael Sciarra to be the man
on the scene at Local 560 to whom orders and instructions could be
given.
Thus, notwithstanding the issuance of the March 16, 1984 Judgment Order
and the appointment of a trustee on June 23, 1986 the Provenzano Group
as it existed in 1984 and as its personnel changed somewhat during the
years that followed, never ceased the unlawful conduct described in
Judge Ackerman's opinion in
Local 560 No. 1.
Sciarra, in his post trial brief seeks to escape the damning implication
of these tape recorded conversations by urging that they are not
admissible against
[**22] him.
At the time of the 1988 preliminary injunction hearing I admitted the
tapes relying on
Fed.R.Evid. 801(d)(2)(E) -- statements by a co-conspirator of a
party during the course and in furtherance of the conspiracy.
Local
560 No. 1 at 1188. That ruling was affirmed on appeal. Sciarra now
urges that Judge Ackerman had found that he was an aider and abettor and
not a co-conspirator and therefore this exception to the hearsay rule is
inapplicable.
I note that the Third Circuit in the opinion affirming
Local 560
No. 1 stated that Judge Ackerman had found that the Executive Board
members not only violated
18 U.S.C. § 1962(b) but also "
conspired to violate § 1962(b),
in contravention of § 1962(d)."
780 F.2d at 294, fn. 35. The Third Circuit approved evidential use
of statements of members of the Provenzano Group against Executive Board
members, including Sciarra, relying on the co-conspirator hearsay
exception. For example, the Third Circuit opinion stated "contrary to
defendants' position, we find that Sinno's testimony was properly
admissible against the current Executive Board members despite the fact
that the current Executive Board members were not appointed until after
[**23] 1961
(when Sinno left the Provenzano Group). The Executive Board members are
bound by the prior acts and statements made by their co-conspirators, so
long as the statements and acts were designed to further the
conspiracy."
780 F.2d at 291, fn. 30.
[*403] Thus,
for evidential purposes, Sciarra was treated by Judge Ackerman and by
the Third Circuit as a co-conspirator. There was every reason to do so,
and there is every reason to continue to do so if the evidence before me
shows that he continued to aid and abet or conspire with the Group
within the Genovese Family seeking to perpetuate its control over Local
560. I conclude that the evidence demonstrates continued aiding and
abetting and conspiracy.
Sciarra erroneously argues in his post-trial brief that to succeed the
government must prove a new RICO offense based on conduct which occurred
after the March 16, 1984 Judgment Order. This argument misconceives the
nature of the present proceeding.
This is not a new case, beginning with a clean slate. Rather, it is but
a facet of the original case commenced on March 9, 1982 and which (other
than this proceeding) is still continuing before Judge Ackerman. This
proceeding is designed to determine
[**24]
whether, by reason of events which took place after the March 16, 1984
Judgment Order, additional equitable relief should be granted against
Sciarra.
Thus, the inquiry whether Sciarra has aided and abetted the post March
16, 1984 efforts to gain control of Local 560 starts with his past
conduct. As recited above for thirty years prior to 1984 the Provenzano
Group had engaged in a pattern of criminal and other improper acts to
gain control over and to exploit Local 560. Sciarra became a business
agent of Local 560 in 1972 and became a trustee in 1981, all the time
idolizing the head of the Provenzano Group, Anthony Provenzano. Sciarra
and the other members of the Executive Board knew that these crimes and
other improper acts had been committed and he and the other members of
the Executive Board acted with the intent to facilitate those crimes and
other improper acts. All this must be considered in evaluating Sciarra's
post March 16, 1984 conduct.
After March 16, 1984 Sciarra continued to profess his loyalty to Anthony
Provenzano and could not bring himself to disavow the criminal and other
unlawful tactics of the Provenzano Group nor to admit the existence of
the Provenzano Group conspiracy
[**25] and
Genovese Family involvement in the affairs of Local 560. As recently as
September 24, 1989, Sciarra, then a Local 560 business agent, proclaimed
to an enthusiastic Local 560 membership his love for Provenzano. I do
not take seriously Sciarra's belated mea culpa delivered on July 17,
1990 at the conclusion of the trial in this matter. That declaration,
like so many of Sciarra's statements over the years, was designed to
meet his needs of the moment.
Most of the evidence in this case was introduced at the 1988 preliminary
injunction hearing. That evidence disclosed actions on Sciarra's past
which tied him personally to the taped conversations and the continuing
conspiracy. Neither Sciarra's testimony at the trial nor the arguments
advanced in his post-trial briefs lead me to change the findings and
conclusions with respect to these actions set forth in my 1988 opinion,
Local 560 No. 2. I incorporate those findings and conclusions
herein.
The evidence and findings with respect to the New England Motor Freight
("NEMF") sweetheart arrangements are set forth at
694 F. Supp. at 1173-1177, 1179-1181.
It was established that for many years NEMF had an extraordinarily
favorable arrangement
[**26] with
Local 560 in that only 13 of its 123-133 warehousemen and drivers were
Local 560 members, the rest being either non-union owner-operators or
employees of another corporation who were members of a different union
having less favorable terms and conditions of employment than those
enjoyed by Local 560 members. The December 7, 1984 tape disclosed that
when Salvatore Provenzano was president of Local 560 he applied various
pressures upon NEMF to terminate the favorable arrangement. The tape
also discloses that Ianniello and Andretta were fearful that the legal
proceedings which arose out of the Local 560-NEMF dispute posed a threat
to persons associated with them and they wanted the dispute with NEMF
ended. Sciarra had replaced Salvatore
[*404]
Provenzano (after the latter's criminal conviction) as President of
Local 560 on October 29, 1984. In the December 7, 1984 conversation
Ianniello and Andretta decided that Sciarra was to make peace ("square
it") with NEMF:
Ianniello: You know what I think?
Andretta: What?
Ianniello: Michael's business. Let's let Michael try to
square it. (unintelligible).
Andretta: Sammy [Provenzano], but Sammy got shoved out of the
office. [**27] He's
gotta step down, he kept pushing the guy. Instead of letting him go,
nobody gets in trouble.
Ianniello: Yeah, I wanted to do it.
Andretta: He came to tell Mikey last month (unintelligible).
He says don't let up on the fucking guy. Crucify and bury him. I
said no you gonna get five guys locked up with the mother fucker.
Ianniello: Don't do it. Tell Mikey not to do it.
I concluded that after the December 7, 1984 Andretta-Ianniello
conversation Sciarra took steps designed to square it with NEMF, acting
in accordance with Ianniello's and Andretta's instructions. On January
31, 1985 Sciarra sent to NEMF's attorney a proposed contract consisting
of two and one-half pages. The grave deficiencies of this contract from
Local 560's perspective are described in
Local 560 No. 2, 694 F. Supp. at 1179. There was testimony at
the 1988 hearing by NEMF's attorney and by Local 560's attorney
concerning this proposed contract. Sciarra testified at the trial
concerning it, seeking to show that it was part of a bona fide effort on
his part to increase Local 560's membership among NEMF employees. The
testimony of the attorneys was not convincing in 1988,
694 F. Supp. at 1179-1180 [**28] and
Sciarra's testimony was not convincing in 1990. More telling as to the
legitimacy of the January 31, 1985 contract proposal is the fact that at
the February 14, 1988 Local 560 meeting Sciarra vehemently (and falsely)
denied that he had sent such a contract to NEMF. The totality of the
evidence supports a finding that Sciarra went through the motions of
seeking NEMF recognition of Local 560 as bargaining agent for all its
employees but in actuality simply permitted perpetuation of the status
quo at NEMF.
Another series of events which is evidence that Sciarra was implementing
the wishes of Ianniello and Andretta is the shifting testimony of Daniel
Rubino, who was the business agent who had dealt with NEMF when the
arrangements favorable to NEMF and unfavorable to Local 560 had been in
effect. The December 7, 1984 taped conversation disclosed that when
Salvatore Provenzano was putting the heat on NEMF he also pressured
Rubino concerning his testimony in the NEMF grievance proceedings
dealing with the dispute. Rubino was close to being eligible for a
pension and did not wish to antagonize Provenzano.
Rubino testified in the grievance proceedings twice while Salvatore
Provenzano was
[**29]
President of Local 560 and once after Sciarra became President. As I
found after the 1988 hearing, the Rubino testimony given during the
Provenzano incumbency was conspicuously different from his testimony
given after Sciarra became President. On the former occasions he
initially denied knowing about the past practices claimed by NEMF.
During the course of the questioning on those two occasions he later
grudgingly admitted knowledge of certain facts which would constitute
those past practices. However, at the February 25, 1985 hearing after
Sciarra had become President, Rubino was far more forthcoming, declaring
without hesitation his knowledge of the details of the past practices.
For further details of this testimony see
Local 560 No. 2, 694 F. Supp. at 1180-1181. These
circumstances tend to confirm that Sciarra was implementing Ianniello's
and Andretta's instructions.
I cited two other circumstances in my 1988 opinion which tended to
confirm Sciarra's continued participation in the Genovese Family efforts
to maintain control over Local 560.
The first was the failure to take steps to remove Marvin Zalk as
administrator of the Local 560 Welfare Plans after he had been convicted
[**30] of
obstruction of justice in a case
[*405]
involving fraud upon the Plans. The second was the failure to terminate
a contract with a provider of legal services to Local 560 members under
circumstances so egregious as to defy belief. I incorporate the detailed
findings about each of these circumstances set forth in
Local 560 No. 2, 694 F. Supp. at 1181-1183.
At the 1988 hearing Local 560 attorney Edward A. Cohen, Esq. attempted
to rationalize these failures to act. In his trial testimony Sciarra
sought to justify his conduct, stating that he relied on advice of
counsel, that he was only one of a number of trustees, etc. At the 1988
hearing I found, and I continue to find, that Mr. Cohen's reasons for
Sciarra's failures to take action were absurd. During the period from
January 12, 1989 until May 8, 1990, when Sciarra was nominally only a
Local 560 business agent under the supervision of the Executive Board,
he demonstrated his ability to exercise complete control over the Union,
whatever his title.
See
Local 560 No. 3, 736 F. Supp. at 606-610. There can be no
doubt that had Sciarra wished to have Zalk and the legal services
provider removed during the period of his Presidency, a mere
[**31]
whisper from him would have accomplished that removal. His failure to
take that action is corroborative of his continued participation in the
Genovese Family conspiracy to maintain control of Local 560 in violation
of RICO.
Since the 1988 hearing additional evidence confirms this conclusion. It
will be recalled that after I enjoined Sciarra and Sheridan from running
for the offices of President and Vice-President in the December 1988
election, Sciarra's brother Daniel Sciarra was nominated and elected
President and Sheridan's nephew Mark Sheridan was nominated and elected
Vice-President. Considering the inexperience of each of those persons it
required an act of faith to believe that they would function
independently of Michael Sciarra. One's faith was further tested when
virtually the first act of the new Executive Board was to appoint
Michael Sciarra a business agent of Local 560.
I probably should have granted the government's application to enjoin
Michael Sciarra from assuming the position of business agent, but
perhaps it is fortunate that I did not do so. Permitting Sciarra to
serve as business agent during the January 12, 1989 to May 8, 1990
period when he was supposedly under
[**32] the
control of the Executive Board, provided a demonstration of what would
happen if he were given any position within Local 560. He immediately
became de facto President of the Union, pushing his brother aside,
figuratively and literally, whenever it suited his purpose to do so.
Were it not for the continuing intervention of the court appointed
Trustee he would have had himself appointed a trustee of two pension and
welfare funds maintained for the benefit of Local 560 members. These
funds had been grossly misused during the Provenzano years, and one of
the principal tasks of the court appointed trustee was to ensure their
honest and effective administration.
I incorporate herein by reference my findings concerning Sciarra's
assumption of power in Local 560 during the period when he was nominally
business agent.
Local 560 No. 3, 736 F. Supp. at 604-612.
One episode during the business agent period illustrated Sciarra's
continuing hostility to outside monitoring of the pension and welfare
funds. On November 1, 1989 Thomas G. Hynes, a special agent with the
United States Department of Labor, met with the executive director of
the Local 560 funds, Michael Santonello. Without knocking,
[**33]
Michael Sciarra along with Mark Sheridan entered the room where Hynes
and Santonello were meeting. Ignoring Hynes, Sciarra engaged Santonello
in a five minute conversation, at the conclusion of which he stated that
he wished to attend the next fund board meeting. Shortly afterwards as
Hynes waited at the elevator to leave Sciarra approached him, asked who
he was and in particular if he were with the government. Sciarra gently
pushed Hynes in the chest stating "get out of here." Hynes testified, "I
got the message he wanted me out of the building."
[*406] I
issued the 1988 order enjoining Sciarra from becoming President of Local
560 because were he to assume that office there was a strong likelihood
that he would lead Local 560 back into the control of the Genovese
Organized Crime Family. The evidence submitted at the 1990 second
preliminary injunction hearing showed that Sciarra through his position
as business agent, had assumed the power which the first preliminary
injunction was intended to keep from him. Therefore on May 8, 1990 I
issued a new order preliminarily enjoining Sciarra from holding any
office in Local 560.
At the trial of this matter two additional items of evidence further
[**34]
demonstrated Sciarra's continuing ties to the Genovese Family. It will
be recalled that Matthew Ianniello and Stephen Andretta were the
principal participants in the tape recorded conversations which
established the Genovese Family's continuing plan to control Local 560
and the decision to use Sciarra as the person through whom control would
be exercised.
At the trial Special Agent Mark Dowd of the F.B.I. testified that on the
morning of June 4, 1990 (less than a month after I had enjoined Sciarra
from participating in Local 560 affairs) he and Special Agent Thomas
Browne conducted a physical surveillance of Sciarra. This led them to a
diner on Route 46 near Little Falls. When the two agents entered,
Sciarra was using the pay telephone in the vestibule. They proceeded by
him to a booth just inside the dining area. About ten minutes later
Sciarra entered this area from the vestibule and walked across the room
to two men who occupied a table. The Agent identified one of these men,
who was seated in the courtroom, as Local 560 business agent David
Keitt. Sciarra conversed with the two men for some minutes. At that
point, a fourth individual entered the dining area. Sciarra immediately
[**35] left
Keitt and his companion and walked back towards the entrance where the
other man had paused. They exchanged greetings and sat down together at
the first booth inside the dining area. Agent Dowd identified this man
as Stephen Andretta. After approximately twenty-five minutes, the agents
left the diner and waited outside. Keitt and his companion left the
diner moments after the two agents. Approximately forty-five minutes
thereafter, Michael Sciarra and Stephen Andretta left the diner
together. They conversed in the parking lot for a few more minutes, and
then departed from the area in their respective vehicles.
The other item of evidence showing Sciarra's continuing association with
the Genovese Family was elicited on cross-examination of Sciarra. The
Government asked about Jimmy Ida, who had been identified during the
August, 1988 proceedings as "Matty" Ianniello's chauffeur and as one of
his designated messengers to Michael Sciarra on Local 560 matters. In
the monitored conversation of December 7, 1984 Ianniello had told
Andretta that Ida could serve as a contact with Sciarra if Andretta were
having difficulty with the assignment. On cross-examination Sciarra
admitted that he
[**36] had
met with Ida on some seven occasions since 1987 in a cafe in Manhattan's
"Little Italy" Section.
Sciarra's explanation of the meetings with Andretta and with Ida was
that there was a need to discuss Sciarra's being a defense witness in an
upcoming criminal trial at which Andretta and Ida would be defendants. I
have little confidence in Sciarra's explanations of events and
circumstances generally. At the very least this evidence shows Sciarra's
continuing association with the Genovese Family members who devised the
plan to exercise control of Local 560 through him.
The evidence at the trial of this case does nothing to change the
factual findings resulting from the 1988 and 1990 preliminary injunction
hearings. Rather the trial evidence fortifies and provides additional
support for those findings. The findings can be summarized as follows.
In 1984 Judge Ackerman found (i) that the Provenzano Group, a component
of the Genovese Organized Crime Family, unlawfully conducted and
participated in an enterprise through a pattern of racketeering activity
in violation of
18 U.S.C. §§ 1962(c)
[*407] and
2; (ii) that the members of the Provenzano Group unlawfully acquired and
maintained an interest
[**37] in and
control of Local 560 through a pattern of racketeering activity in
violation of
18 U.S.C. §§ 1962(b) and 2; (iii) that the members of the Provenzano
Group conspired to violate both sections 1962(b) and 1962(c) in
violation of
18 U.S.C. § 1962(d); and (iv) that during their respective periods
of incumbency the Local 560 Executive Board members, including Sciarra,
aided, abetted and facilitated the commission of the section 1962(b)
violations.
After Judge Ackerman's March 16, 1984 Judgment Order the Genovese
Family, without interruption, continued to seek to acquire and maintain
an interest in and control of Local 560 for criminal purposes. The
Genovese Family, acting through Matthew Ianniello and Stephen Andretta,
designated Sciarra as the person through whom control of Local 560 would
be exercised.
Sciarra aided and abetted the Genovese Family acting through the
Provenzano Group in its criminal activities regarding Local 560 prior to
March 16, 1984 and thereafter Sciarra continued to aid and abet the
Genovese Family as it sought to perpetuate its interest in and control
over Local 560.
As long as Sciarra holds any position within Local 560 he will be able
through his forceful
[**38]
personality and through his hold on a large and vocal segment of the
membership to dominate and control the Local and its pension and welfare
funds. If he assumes power within the Union it is highly likely that
upon termination of the court appointed trustee's oversight the Genovese
Family would reassert control over Local 560, undoing all the efforts of
the past eight years. Great strides towards the establishment of union
democracy have been made during the period of the trusteeship. The
return of Sciarra and, through him, Genovese Family influence, would
crush the movement towards membership control and bring back the dark
night of the strong arm and repression.
Control by Sciarra and through him by the Genovese Family would place
the welfare and pension funds at great risk. They were looted before the
court appointed trustee assumed office and if Genovese Family influence
were reestablished it is almost a foregone conclusion that they would be
looted again upon the departure of the Trustee.
In sum, Sciarra's presence within Local 560 would subject the union, its
members and its pension and welfare funds to irreparable injury. This
injury can be avoided only by injunctive relief
[**39] which
would prevent Sciarra's return to any leadership capacity in Local 560.
C. CONCLUSIONS OF LAW
Most of the legal issues raised in this proceeding have already been
decided by the Third Circuit in its opinion affirming Judge Ackerman's
March 16, 1984 Judgment Order,
United States v. Local 560, 780 F.2d 267 (3d Cir. 1985). I
need address these issues no further.
The 1982-84 phase of the action resulted in a RICO adjudication against
Sciarra. This was based on his involvement as a member of the pre-1982
Executive Board whose collective gross misconduct aided and abetted the
Provenzano Group with respect to the continuing extortion of the union
members' LMRDA rights
(18 U.S.C. § 1951) and the resulting pattern of racketeering
activity in violation of
18 U.S.C. §§ 1962(b) and (d). In his March 1984 Judgment Order,
implemented in June 1986 after all appeals had been completed, Judge
Ackerman removed from office temporarily the remaining incumbent
Executive Board members (including Sciarra).
The present phase of the action, based not only upon the pre-1984 events
but also upon events which transpired after March 1984, projects the
question whether the relief awarded in the
[**40] 1984
Judgment order against Michael Sciarra was adequate. As recited above I
have concluded that additional relief is necessary to prevent
irreparable injury to the Union, its members and the Union's pension and
welfare funds. The additional relief required is a permanent
[*408]
injunction prohibiting Sciarra from holding any position of trust within
or otherwise endeavoring to influence the affairs of Local 560 or any of
its benefit plans.
Sciarra urges that a permanent injunction would deny him his Fifth
Amendment rights to liberty and property by preventing him from pursuing
his means of livelihood as an officer, Executive Board member or
business agent of Local 560. Throughout his adult life Sciarra has been
a member or employee of Local 560, from which he has derived his income
and upon which he and his family have depended for a livelihood and
support.
The Third Circuit has ruled that "section 1964(a) of the RICO Act
enables the district court, in its discretion, to employ a wide range of
civil remedies. In relevant part, section 1964(a) empowers district
courts to prevent violations of section 1962 'by issuing appropriate
orders, including, but not limited to: ordering any person
[**41] to
divest himself of any interest, direct or indirect, in any enterprise;
[and] imposing reasonable restrictions on the future activities or
investments of any person . . . .'"
780 F.2d at 295. Further, the Third Circuit referred to the case of
United States v. Rubin, 559 F.2d 975 (5th Cir. 1977) and
noted with approval that the Fifth Circuit had "stated that under
section 1964 (unlike section 1963) defendants may be enjoined from
reacquiring union office." The Third Circuit then observed that
"logic dictates that if section 1964 grants the district court the
authority to bar an individual from
reacquiring office -- it must
also grant the district court the authority to remove an individual from
office."
780 F.2d at 296.
Although the Third Circuit addressed an order which only temporarily
removed the Executive Board members from office, the language and the
logic of its opinion would permit a district court to enjoin a defendant
such as Sciarra from reacquiring union office. The statute permits such
relief and there is no constitutional impediment to granting such
relief.
The only question, therefore, is whether a permanent injunction against
Sciarra is a
reasonable restriction
[**42] within
the meaning of section 1964(a). I have concluded that it is both
reasonable and necessary.
It is necessary for the reasons I have elaborated in my factual
findings. It is reasonable that the injunction be permanent rather than
remaining in effect for only a designated number of years.
Sciarra has opportunities for work other than employment as an officer,
Executive Board member or business agent of Local 560. He is at that
stage in life where he has acquired pension interests based upon his
employment by Local 560. The preliminary injunction decree issued after
the second preliminary injunction hearing was tailored so as to enable
him to become eligible for payment of pension benefits. Thus, any
hardship upon Sciarra and his family has been minimized.
Sciarra also argues that a lesser remedy should be decreed, namely an
order which would permit him to continue as a business agent and which
would impose tight restrictions on what he could and could not do. That
suggestion has some appeal. However, we have already tried that approach
and, as described above, it was a dismal failure. I refer to my opinion
in
Local 560 No. 3 for the details of that failure.
For all the foregoing
[**43]
reasons I conclude that additional relief is required. An order will be
entered permanently enjoining Michael Sciarra from holding any office or
position of trust within or otherwise endeavoring to influence the
affairs of Local 560 or any of its benefit plans. The government is
requested to submit a form of order.