24 U. Mich. J.L. Ref. 571, *

 
Copyright (c) 1991 University of Michigan Law School
University of Michigan Journal of Law Reform

SPRING and SUMMER, 1991

24 U. Mich. J.L. Ref. 571

LENGTH: 33927 words



ARTICLE: PRIVATE PLAINTIFFS' USE OF EQUITABLE REMEDIES UNDER THE RICO STATUTE: A MEANS TO REFORM CORRUPTED LABOR UNIONS

NAME: Randy M. Mastro * and Steven C. Bennett ** and Mary P. Donlevy ***

BIO:

* Randy M. mastro is a former Assistant United States Attorney and Deputy Chief of the Civil Division of the Office of the United States Attorney for the Southern District of New York. He was the lead prosecutor in the Government's civil RICO action against the International Brotherhood of Teamsters. He is a graduate of Yale University, B.A. 1978, and the University of Pennsylvania Law School, J.D. 1981. He is currently an associate at Gibson, Dunn & Crutcher in New York City.


** Steven C. Bennett is an Assistant United States Attorney in the Office of the United States Attorney for the Southern District of New York. He is a graduate of Macalester College, B.A. 1979, and New York University Law School, J.D. 1984.


*** Mary P. Donlevy is currently an associate at Gibson, Dunn & Crutcher in New York City. She is a graduate of Pepperdine University, B.A. 1986, and Columbia University School of Law, J.D. 1989.

SUMMARY:
  ... Since its enactment in 1970, the Racketeer Influenced and Corrupt Organizations statute (RICO) increasingly has become a vehicle through which the federal government has attacked corruption of labor unions by organized crime. ... The RICO statute defines "racketeering activity" to include a host of federal and state offenses traditionally associated with organized crime, including murder, kidnaping, gambling, arson, robbery, bribery, extortion, and dealing in narcotics. ... To obtain RICO relief for a labor union, the government generally must show that union leaders have joined with members of organized crime to gain control over the union by various illegal means and have continued to use their control to exploit the rights of union members. ... Proving the RICO elements -- In a RICO action against a union's leadership, the government's goal is to prove the two principal RICO elements: (1) that organized crime has acquired and maintained control over the union through a pattern of racketeering activity, facilitated by the union leadership; and (2) that members of both organized crime and the union leadership used their control to conduct the affairs of the union through a pattern of racketeering activity. ... In sum, the private litigant should be able to obtain equitable relief under the RICO statute. ... A civil RICO action against a labor union may place a substantial financial burden on the private litigant. ...  

TEXT:
 [*571]  Since its enactment in 1970, the Racketeer Influenced and Corrupt Organizations statute 1 (RICO) increasingly has become a vehicle through which the federal government has attacked corruption of labor unions by organized crime. In 1989, for example, the government used the RICO statute to reform the electoral and disciplinary procedures of the International Brotherhood of Teamsters (the IBT or Teamsters); 2 and just last year, the government brought a civil RICO suit seeking appointment of an administrator for the New York Waterfront and appointment of trustees for several locals of the International Longshoremen's Association. 3 Despite the opportunities that the RICO statute offers for constructive union reform, private litigants have yet to seek RICO equitable remedies against labor unions. This article explains how the government has prosecuted civil RICO cases against labor unions and suggests how private litigants might use the RICO statute to achieve similar equitable reform of labor unions. In describing the government's approach to  [*572]  prosecuting civil RICO actions against labor unions, the authors aim to provide a road map for private litigants to avail themselves of the types of equitable remedies achieved in prior civil RICO cases.

Prior to the enactment of the RICO statute, the federal government's supervision of labor unions principally entailed enforcement of the labor laws, coupled with criminal prosecutions of corrupt individuals. 4 This limited approach to regulation sometimes permitted unions with sordid histories to remain mired in corruption even in the midst of scrutiny by the Labor Department and other regulatory and law enforcement agencies. 5 Moreover, union dissidents, constrained by the same labor laws and ostracized by their own leadership, had to rely largely on occasional government intervention for the limited reforms that were available. 6

The RICO statute radically changed the regulatory landscape. In RICO, the government has found a new and potent weapon to fight corruption of labor unions by organized crime. 7 RICO has given federal courts the freedom to fashion creative equitable remedies to redress racketeering activity. Under RICO, even at the preliminary stage, "the court may at any time enter such restraining orders or prohibitions, or take  [*573]  such other actions . . . as it shall deem proper." 8 Thus, the RICO statute has given the government a means to change the way corrupt unions elect their officers, discipline their officers and members, and otherwise conduct their operations. 9

The fact remains, however, that the government has used this "extraordinary" weapon "very sparingly." 10 In the two decades since the statute was passed, the government has brought few civil RICO actions against labor unions. 11 These cases have involved unions plagued by "systemic corruption" for "so many years" that a "drastic" remedy was necessary. 12 In short, the government has sought RICO relief against labor unions only in the most egregious circumstances.

Nevertheless, through its early successes with the statute, the government has established extremely valuable precedents, the benefits of which private litigants may be able to share. Unlike the government, whose primary concern is eliminating union corruption, 13 private litigants may have a completely different agenda in bringing a civil RICO action against a labor union. Because RICO affords previously unavailable equitable remedies, union reformers now have within their grasp a weapon that works. They simply need to use it.

Part I of this Article outlines the government's approach to civil RICO actions involving labor unions, including an  [*574]  overview of the government's prior civil RICO actions and a summary of the types of issues that often arise in such actions. Part II examines the unique issues involved in a civil RICO action brought by a private plaintiff. The principal issue addressed in this Part is whether a private plaintiff can bring an action under the equitable remedies provisions of the RICO statute. This Part also addresses the issues of how a private plaintiff can gain access to information that may be required to prosecute a civil RICO action and how a private plaintiff could pay for such an action.

I. The Government Approach to Civil RICO Actions

This Part addresses the issues that prior government civil RICO actions have raised. Any civil RICO action by a private plaintiff likely would raise many of the same issues.

A. Overview of the RICO Statute

Aware of the magnitude of the problem of organized crime corruption of businesses and unions alike, in 1970 Congress enacted RICO, 14 which, as one of the Act's sponsors said, was aimed at "striking a mortal blow against the property interests of organized crime." 15 The recognition that, in many instances, organized crime had come to dominate large and powerful unions was prominent among the congressional concerns underlying RICO:

Closely paralleling its takeover of legitimate businesses, organized crime has moved into legitimate unions. Control of labor supply through control of unions . . . provides the opportunity for theft from union funds, extortion through the threat of economic pressure, and the profit to be gained from the manipulation of welfare and pension funds and insurance contracts. Trucking, construction,  [*575]  and waterfront entrepreneurs have been persuaded for labor peace to countenance gambling, loansharking and pilferage. As the takeover of organized crime cannot be tolerated in legitimate business, so, too, it cannot be tolerated here. 16
 
The RICO statute represents an economic approach to rooting out organized crime in businesses and labor unions, not simply a reorganization of previously established methods of fighting corruption. As the Supreme Court observed, "the RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots." 17

The essence of the RICO statute is a prohibition on gaining control of an economic enterprise through a pattern of racketeering. The statute provides, in relevant part:

It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. 18
 
The RICO statute defines "racketeering activity" to include a host of federal and state offenses traditionally associated with organized crime, including murder, kidnaping, gambling, arson, robbery, bribery, extortion, and dealing in narcotics. The listed offenses also specifically include certain labor-related offenses, such as embezzlement from pension and welfare funds. 19

 [*576]  RICO contains provisions for both criminal penalties and civil remedies. 20 The purpose of this two-fold approach was to attack the corrupting influence that Congress recognized organized crime had gained over many types of the nation's commercial enterprises and unions. 21 Recognizing that years of successful prosecutions of organized crime figures had not weakened organized crime's firm grip over many sectors of the nation's economy, 22 Congress sought to expand greatly the prosecutorial tools available to the government and the remedial tools available to the courts. 23 Congress explicitly declared that the provisions of the RICO statute "shall be liberally construed to effectuate its remedial purposes." 24 This directive is unique in the entire body of substantive federal criminal law. 25

In section 1964, the civil portion of the RICO statute, Congress granted federal courts extremely broad powers to impose equitable relief to prevent and restrain RICO violations. The statute provides:

The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce;  [*577]  or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons. 26
 
This provision for equitable remedies is perhaps the broadest of the powers granted to the courts under the RICO statute. 27 This broad equitable power comports with the legislative history of the statute. The final report of the House Judiciary Committee explained that section 1964 was intended to be a starting rather than ending point for devising creative solutions to organized crime problems:

Subsection (a) contains broad provisions to allow for reform of corrupted organizations. Although certain remedies are set out, the list is not meant to be exhaustive, and the only limit on remedies is that they accomplish the aim set out of removing the corrupting influence and make due provision for the rights of innocent persons. 28
 
The Senate Judiciary Committee concurred in this approach, noting that the equitable provisions of the RICO statute were intended to be "broad enough to do all that is necessary to free the channels of commerce from all illicit activity." 29 Although Congress modeled the civil provisions of the RICO statute after existing antitrust statutes, 30 Congress made clear that previous models were to be sources of inspiration, not limitation, for equitable remedies: "[I]t must be emphasized that [RICO's enumerated] remedies are not exclusive," and include but are not limited to "the full panoply of civil remedies . . . now available in the antitrust area." 31 Plainly, Congress intended that federal courts would apply the equitable remedies of the RICO statute broadly to effectuate the statute's purpose. As illustrated in the next section, the government has made extensive use of these broad powers in an attempt to remedy the problem of corrupted labor unions.

 [*578]  B. The Government's Prior Civil RICO Cases

The influence of organized crime within several of the nation's largest labor unions is frightening in magnitude. For example, in its 1986 report, the President's Commission on Organized Crime identified four international unions -- the International Longshoremen's Association, the Hotel and Restaurant Employees International Union, the International Brotherhood of Teamsters and the Laborers International Union of North America -- as "substantially influenced and/or controlled by organized crime." 32 Unfortunately, ridding these labor unions of organized crime domination has proved to be a difficult task. Thus far, the government has invoked RICO's civil remedy provisions against unions in only the most egregious circumstances of corruption by organized crime. 33 These cases demanded equitable relief in the interest of protecting the victims of organized crime -- the union membership, affected businesses, and the public at large.

When the federal government has brought civil RICO cases, it has sought equitable relief in the form of a divestiture or trusteeship over the affected entities. 34 These entities have included various combinations of individual businesses 35 and labor unions, 36 and in one instance an entire marketplace. 37

 [*579]  In United States v. Cappetto, 38 the first reported case involving application of the civil remedies provisions of the RICO statute, the Seventh Circuit Court of Appeals affirmed the district court's order granting the government a preliminary injunction against defendants who had conducted a sports wagering business at a billiard parlor in Chicago. 39 The court concluded that preliminary relief was appropriate given that "[i]t was plainly the intention of Congress in adopting Section 1964 [of the RICO statute] to provide for injunctive relief against violations of [the statute] without any requirement of a showing of irreparable injury other than that injury to the public which Congress found to be inherent in the conduct made unlawful by [the statute]." 40 The court further suggested that divestiture of the owner's interest in the billiard parlor might be an appropriate permanent remedy, but deferred consideration of the issue until the conclusion of the district court proceedings. 41

More recently, in United States v. Local 560, International Brotherhood of Teamsters, 42 the Third Circuit affirmed the district court's order granting equitable relief sought by the government. 43 The appellate court observed that "the power to appoint a Trustee falls within the broad equitable powers granted to district courts under Section 1964(a)." 44 In affirming the district court's order barring two defendants from all further contact with Local 560 and replacing the union's entire executive board with a trustee, the Third Circuit held: "Clearly, the district court's injunction in the instant case fell within its broad remedial powers of 'divestiture' and 'reasonable restrictions' provided for under section 1964." 45

In United States v. Ianniello, 46 the United States Court of Appeals for the Second Circuit affirmed a district court order appointing a receiver pendente lite to run a restaurant business corrupted by racketeering activity. 47 The court took this action even though the listed owner of the business,  [*580]  Robert Ianniello, had been acquitted of criminal RICO charges in connection with restaurant profit skimming, which the government proved at a criminal RICO trial against other defendants, including La Cosa Nostra 48 Genovese family capo 49 Matthew Ianniello, who was also a defendant in the civil action. 50 In appointing a receiver to run the restaurant during the pendency of the civil RICO action, the district court reasoned that because "Robert Ianniello either could not or would not control an improper diversion of funds which the criminal jury found had taken place" 51 the court needed to appoint a receiver to prevent racketeering activity at the restaurant. 52

 [*581]  In United States v. Local 6A, Cement and Concrete Workers, 53 the government sought the appointment of a trustee to oversee the operations of the District Council and Local 6A of the Cement and Concrete Workers Union. 54 The district court initially ordered a preliminary injunction hearing, which was to be "limited in time and subject matter" 55 in light of the "very strong showing" 56 the government had made at the outset of the case in support of its motion for preliminary relief. Shortly after this ruling, the union defendants entered into a consent judgment appointing a trustee to oversee union operations for four years, permanently barring individual officer defendants from holding union office, and, in certain instances, even from working as union laborers. 57 The court-appointed trustee began his term in April 1987. 58

In United States v. Local 359, 59 the government alleged that the Genovese family of La Cosa Nostra controlled the Fulton fish market in lower Manhattan along with the union that serviced the fish market. 60 The government sought an administrator to oversee the operations of the fish market, a trustee to run the union, and extensive injunctive relief to bar Genovese family members and associates from the fish market and the union. 61 United States District Judge Thomas P. Griesa entered consent judgments appointing an administrator for the Fulton Fish Market, permanently barring several organized crime figures from the fish market and the union, and enjoining racketeering activity there. 62 Judge Griesa, however, refused to appoint a trustee for the union. 63

In United States v. Bonanno Organized Crime Family of La Cosa Nostra, 64 the government sought a trusteeship for Teamsters Local 814 in New York City, along with injunctive  [*582]  relief to retrieve the Bonanno family's illegally gotten gains. 65 United States District Judge I. Leo Glasser of the Eastern District of New York entered a consent judgment appointing a trustee for Local 814. 66 Judge Glasser also denied the other defendants' motion to dismiss, ruling that the government had the right to seek injunctive relief to break up the Bonanno family and disgorgement of the Bonanno family's illegal profits. 67

In United States v. Local 30, United Slate, Tile & Composition Roofers, 68 United States District Judge Louis Bechtle of the Eastern District of Pennsylvania granted extensive civil RICO preliminary relief, including sweeping injunctions and the appointment of a "court liaison officer" to oversee the operations of a corrupt local roofers union. 69 In appointing a "court liaison officer" as a preliminary remedy, the court rejected a mere monitorship as insufficient to prevent union corruption during the pendency of the action. 70 The court gave the court liaison officer extensive powers over the union's collective-bargaining process, 71 which the government proved had been corrupted by violence and threats of violence against employers who refused to comply with the union leadership's demands. 72

The government's most ambitious attempt to use the RICO statute against organized crime's contamination of labor unions appears in United States v. International Brotherhood of Teamsters, 73 a case in which the government sought to impose a trusteeship over an entire international union. 74 On the eve of trial, the defendants entered into a consent judgment that granted the government an unprecedented breadth of equitable relief. 75 The Teamsters agreed for the first time to hold direct, rank-and-file, secret ballot elections for all of  [*583]  the Teamsters' top officers. 76 Moreover, the court appointed three officers, each with a specific area of responsibility, to oversee the actions of the union's officials. 77 An "independent administrator" was appointed, 78 with the power to veto all union contracts (other than collective-bargaining agreements), executive appointments, and expenditures; to discipline corrupt union officials; and to impose trusteeships on corrupted union locals. 79 An "investigations officer" was appointed to act as a prosecutor within the union. 80 His powers included the authority to seek a court-ordered trusteeship over any one or more of the Teamsters locals. 81 Finally, an "election officer" was appointed to run the union's elections in 1991 and 1996. 82 The independent administrator and investigations officer will serve until 1992, by which time the union will have established its own permanent independent review board. 83 The 1991 election was commencing as this Article went to print. 84

On June 6, 1989, the government filed a civil complaint in United States v. Private Sanitation Industry Association. 85 The suit charges 64 individual defendants, along with Local 813 of the International Brotherhood of Teamsters and the Private Sanitation Industry Association, a trade group, with RICO violations involving the garbage carting industry. The complaint alleges that the Luchese and Gambino crime families have controlled the Long Island, New York carting industry since the 1950s. The suit seeks forced sale of mob-dominated companies, removal of organized-crime influenced officers of the Teamster's Local, and a court-appointed trustee to run the carting trade association. Trial of the action has not yet commenced. 86

 [*584]  On February 14, 1990, the government filed a complaint in United States v. Local 1804-1, International Longshoremen's Association 87 against six local labor unions of the International Longshoremen's Association (ILA) and their executive boards, thirty-two present or former officials of these ILA locals, twelve individuals who are alleged to be members or associates of organized crime families, and several employers. 88 In this case, the government seeks to put an entire economic market-place, the New York and New Jersey Waterfront, under court supervision. The complaint asks the court to appoint one or more trustees whose primary responsibilities will be to ensure free and fair elections of new union officers and to discipline current officers found guilty of wrongdoing. 89 The complaint also seeks preliminary relief in the form of injunctions to keep organized crime elements out of the ILA and its locals, to bar ILA officers from engaging in any racketeering activity, and to provide for the immediate appointment of a temporary court liaison officer to discipline ILA corruption and prevent further racketeering activity. 90 Trial of the action commenced in April of 1991. 91

In United States v. Local 295, International Brotherhood of Teamsters, 92 the federal government sued Teamsters Local 295 and Local 851, along with fourteen individual defendants, charging that the Gambino and Luchese crime families had used their control over the unions to control the cargo business at John F. Kennedy airport in New York City. The suit seeks the appointment of a trustee to oversee the affairs of the two unions and to recover ten million dollars gained through extortion and illegal payoffs. 93

 [*585]  In a recent civil RICO suit, United States v. District Council, United Brotherhood of Carpenters, the government seeks to remove officers of a New York City-based District Council of the Carpenters Union and to appoint one or more trustees to discipline District Council officers and conduct free and fair elections of new officers. 94 The suit alleges that despite several criminal prosecutions, the Genovese La Cosa Nostra family continues to influence the District Council. 95

Finally, in United States v. Local 54, Hotel Employees and Restaurant Employees International Union, 96 the government sought to remove the top officers of the local and place the local under a trusteeship. 97 The complaint alleged that Local 54, located in Atlantic City, New Jersey, has been dominated by the Bruno/Scarpa crime family for over twenty years. 98 In a settlement reached in April, 1991, all but four officers agreed to relinquish their union positions. 99 Further, the agreement established a court-appointed monitorship over the local. The monitor will oversee the election of new union officers over an eighteen month period. 100

C. The Government's Approach to Civil RICO Actions

In the civil RICO cases pursued to date, the government has developed the framework for establishing the basis of a claim for equitable relief. Essential to this framework is the establishment of the elements of a RICO violation.

1. The elements of a RICO violation -- The gravamen of any RICO offense is controlling or conducting of the affairs of an  [*586]  enterprise through a pattern of racketeering activity. 101 To obtain RICO relief for a labor union, the government generally must show that union leaders have joined with members of organized crime to gain control over the union by various illegal means and have continued to use their control to exploit the rights of union members. 102

a. The labor union as an "enterprise" -- There is little dispute that a labor union can constitute an "enterprise" for purposes of RICO. The statute defines enterprises to include "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 103 An enterprise may be either a legitimate entity or an illegitimate or illicit association. 104

For purposes of a RICO suit against a labor union, the enterprise may be a particular union local 105 or the international union as a whole. 106 The union and its leaders typically are bound together under the terms of their international and local union constitutions. 107 Members of the ruling body of an international union often hold offices in one or more locals of the union as well. 108 This interlinking binds the locals and the ruling boards of the union together to form an "enterprise."

b. Pattern of racketeering activity -- The definition of "racketeering activity" includes any one of numerous criminal acts punishable under state law or indictable under various  [*587]  enumerated provisions of the United States Code. 109 Such acts are termed "predicate acts" for purposes of the RICO statute. 110 In the Teamsters case, for instance, the predicate acts alleged to constitute racketeering activity by La Cosa Nostra and the union leaders included wire fraud, extortion, mail fraud, embezzlement of union funds, unlawful benefit fund payments, obstruction of justice, illegal labor payments, interstate travel in aid of racketeering, and murder. 111

The government must prove at least two predicate acts to satisfy the "pattern" of racketeering activity requirement. 112 Further, as noted by the Supreme Court in Sedima, S.P.R.L. v. Imrex Co., Inc., 113 the alleged predicate acts must be related in some way, and not mere isolated events. 114 Proof of a relationship between events may be shown by "their temporal proximity, or common goals, or similarity of methods, or repetitions." 115

In the context of control of labor unions by organized crime, the common thread running through the various predicate acts committed generally is control and exploitation of the union (the "enterprise") by organized crime figures for their own economic gain and the benefit of the corrupt union leaders. This singular illicit motive is the impetus for all the racketeering acts committed by the organized crime and union leadership conspiracy. 116

 [*588]  2. Proving the RICO elements -- In a RICO action against a union's leadership, the government's goal is to prove the two principal RICO elements: (1) that organized crime has acquired and maintained control over the union through a pattern of racketeering activity, facilitated by the union leadership; and (2) that members of both organized crime and the union leadership used their control to conduct the affairs of the union through a pattern of racketeering activity.

a. Proving acquisition and maintenance of control over the union enterprise -- The government's first burden is to prove the existence of organized crime and its infiltration into the union. Much of this work has already been done. Within the past two decades dozens of members of La Cosa Nostra have been tried and convicted for their racketeering involvement with various labor unions. Transcripts and court records from these trials contain proof of La Cosa Nostra's control over the leaders of these various unions. 117 In addition, both the federal and state governments have conducted major investigations and issued extensive reports on the existence of organized crime. Included in these reports are descriptions of organized crime influence and control over various labor unions. 118

(1) Prior criminal RICO prosecutions -- Many of the criminal prosecutions cited in the introduction to this Article involved officers of unions. 119 These prosecutions have, in many cases, established the existence of a corrupt relationship between La Cosa Nostra and particular unions. 120 Testimony and court records from these prosecutions may provide a civil RICO plaintiff with valuable information linking union  [*589]  officials with organized crime figures. In the Teamsters case, for instance, prior criminal trials produced a wealth of evidence for the government, vividly illustrating connections between top Teamsters officials and members of La Cosa Nostra. 121

(2) Government investigative reports -- A series of reports from various government agencies has detailed the existence of La Cosa Nostra and its influence over labor unions. Principal among these is the 1986 Report of The President's Commission on Organized Crime (PCOC). 122 Some states, such as New York, have commissioned their own studies chronicling organized crime's firm grip on labor. 123

These reports can be extremely useful in a RICO action as proof of the relationship between the particular union and La Cosa Nostra. In the Teamsters case, for instance, the PCOC report provided the government with a wealth of evidence of the IBT's relationship with La Cosa Nostra families throughout the nation. The PCOC report summarized this evidence:

The leaders of the nation's largest union, the International Brotherhood of Teamsters (IBT), have been firmly under the influence of organized crime since the 1950's. Although many of the hundreds of IBT locals and joint councils operating throughout the country are not criminally infiltrated, organized crime influences at least 38 of the largest locals and a joint council in Chicago, Cleveland, New Jersey, New York, Philadelphia, St. Louis, and other major cities. Former Teamster president Roy L. Williams told the Commission, "Every big [Teamster] local union . . . had some connection with organized crime." These locals operate in the nation's major business and economic centers  [*590]  and include the majority of the union's 1.6 million members. They are the foundation of organized crime's unionwide influences. 124
 
The PCOC report further found that "[f]or decades organized crime has exercised substantial influence over the international union, primarily through the office of the president." 125 In light of the extensive evidence of persistent corruption within the union, the PCOC concluded that drastic remedies were required:

At both the international and local levels, the IBT obviously continues to suffer from the relationship with organized crime. Indeed, so pervasive has this relationship become that no single remedy is likely to restore even a measure of true union democracy and independent leadership to the IBT. Sustained commitment of governmental resources to dislodge organized crime from the IBT through a combination of criminal prosecutions, civil action, and administrative proceedings is the only approach that offers even a modest hope of success in the long run. . . . [S]ystematic use of trusteeships by the courts may be necessary to prevent organized crime from continuing to do business as usual in the IBT. 126

(3) Fifth amendment invocations -- It is not unusual for a corrupt union officer to refuse to testify regarding his association with organized crime when he is called before a congressional investigating committee, before a grand jury, before government agencies responsible for union affairs, or at depositions in civil actions. 127 In such cases, the union  [*591]  officer's refusal to testify can lead to an adverse inference in a civil action. In Baxter v. Palmigiano, 128 a leading case in this area, the Supreme Court noted "the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." 129 Relying on this language from Baxter, the Second Circuit permitted a negative inference from a fifth amendment invocation in a civil RICO action. 130

By invoking the fifth amendment, union officers may also contravene long-standing AFL-CIO policy, which requires union officials to cooperate with law enforcement efforts to fight corruption:

"[I]f a trade union official decides to invoke the Fifth Amendment for his personal protection and to avoid scrutiny by proper legislative committees, law enforcement agencies or other public bodies into alleged corruption on his part, he has no right to continue to hold office in his union. Otherwise, it becomes possible for a union official who may be guilty of corruption to create the impression that the trade union sanctions the use of the Fifth Amendment not as a shield against a matter of individual conscience but as a shield against proper scrutiny into corrupt influences in the labor movement." 131
 
In addition to supporting a negative inference concerning the testimony the officer would have given if compelled to testify truthfully, the officer's invocation of the fifth amendment and consequent violation of the AFL-CIO policy may constitute a separate basis for seeking removal of the union official. 132

 [*592]  (4) Expert testimony -- The use of expert testimony can be very helpful not only in proving La Cosa Nostra's influence and control over a union, but also in establishing that the defendants have extorted the union members' rights. In the Local 560 case, 133 for example, expert testimony greatly influenced the court's finding that the union leadership extorted the membership's rights. Professor Clyde Summers, 134 a renowned specialist in labor law, testified on behalf of the government and explained his conclusion that "a significant proportion of Local 560's rank and file were induced by fear of the Provenzano Group to surrender their membership rights." 135 Summers based his conclusion on the theory that the atrocious incidents that had occurred throughout the history of the local should have raised some criticism or dissention from the membership, but did not. After reciting a number of incidents that had occurred within the Local, from murder to appointment of convicted felons to union office, Summers concluded, "'[I]t is beyond belief that 10,000 members would sit by and watch these things done and never utter a peep', unless a substantial number of the membership were fearful for their lives or their jobs." 136 The Third Circuit found Summers's testimony entirely convincing, noting that "[t]here seems to be no other plausible explanation for the silence of Local 560's membership in the face of repeated outrageous events." 137

b. Proving a pattern of racketeering activity -- As stated earlier, a RICO violation consists of at least two predicate acts related to each other in some fashion. 138 Extortion, embezzlement and murder are examples of egregious crimes that  [*593]  constitute predicate acts. Other crimes, such as wire fraud, mail fraud and obstruction of justice, if proven, also constitute predicate acts for purposes of a RICO action. 139 The government's theories with respect to RICO predicates have, in some instances, adapted the criminal law to the unique problem of organized-crime corruption of labor unions.

(1) Wire fraud -- Once organized crime elements have gained influence over a union's leadership, their principal aim (in addition to extracting money from the union) is to maintain influence by controlling access to union office. La Cosa Nostra may take steps to ensure the outcome of elections to sustain its power over the union. La Cosa Nostra members conspire among themselves and with the corrupted union leaders to "fix" the elections. 140 By doing so, they rob the union members of their right to elect their own leaders, and thereby commit a fraud upon the membership. What on its face appears to be a democratically chosen leadership is, in truth, a mob-appointed leadership. This fraud can form the basis for a violation of the federal wire fraud statute.

The federal wire fraud statute provides generally that a crime is committed whenever "any scheme or artifice to defraud" is devised to obtain money or property by means of "false or fraudulent pretenses" and any communication is transmitted by "wire, radio, or television" in interstate or foreign commerce. 141 The scheme to defraud "need not be proved by direct evidence; a common scheme or plan may be inferred from circumstantial evidence." 142 The same is true of intent to defraud, which "is often established by circumstantial evidence revealing a pattern of conduct or coordinated activities from which a rational person may infer . . .  [*594]  that a defendant joined the scheme or unlawful enterprise with knowledge of its unlawful objective, i.e., to defraud others." 143

For example, in the Teamsters complaint, the government alleged that certain La Cosa Nostra figures, together with the sitting members of the IBT's General Executive Board, selected and promoted Roy Williams and Jackie Presser in their campaigns for IBT general president. Williams and Presser were chosen, the complaint alleged, because they were controlled and influenced by La Cosa Nostra and would be of economic benefit to the mob once in office. The members of the General Executive Board endorsed the arrangement because they benefited from the avoidance of opposition and accountability to the membership that mob control permits. 144 This arrangement harmed the membership in numerous ways, such as by reducing wages and other benefits through sweetheart contracts and non-union labor-leasing schemes, 145 excessive salaries of union officials, 146 and the loss of the basic economic right to cast a meaningful union vote. 147

The government's complaint further alleged that all of the participants in the election fraud schemes concealed from the IBT membership La Cosa Nostra's control and influence over the union's electoral process and the IBT leadership. 148 Because the General Executive Board owed a fiduciary duty under federal labor law to protect the interests of the membership over personal or outside interests, 149 this concealment worked a fraud on the membership. 150 Further, because the  [*595]  defendants had made telephone calls in furtherance of the election fraud conspiracy, 151 they violated the wire fraud statute.

Unfortunately, many unions use election processes that are susceptible to La Cosa Nostra control. In the Teamsters Union, for instance, the membership did not directly elect the international officers. 152 Rather, IBT officers were elected at conventions held every five years, 153 the maximum period permitted under the Landrum-Griffin Act. 154 Delegates to the convention were selected almost exclusively from among local union officers and business agents. 155 Moreover, if the office of IBT general president became vacant during the five-year period between conventions, as occurred in 1981 when Frank Fitzsimmons died in office and in 1983 when Roy Williams was convicted while in office, 156 the General Executive Board selected the new general president, 157 giving him the crucial advantage of incumbency at the next convention. 158 Similarly, vacancies in the office of IBT vice-president were filled by appointment of the General President, with the approval of a majority of the General Executive Board. 159

At the time the government brought its suit against the Teamsters, it was prepared to prove that thirteen of the  [*596]  sixteen sitting vice-presidents had first come to their offices through this appointment procedure, and that the three remaining vice-presidents ran with the incumbent slate at conventions at which the IBT's General Executive Board was expanded to create new vice-presidential slots for them. Because of the concentration of power in a few hands and the limited opportunities for democratic review, La Cosa Nostra gained influence over the top IBT leadership and the officers of many major local Teamsters unions. This influence, in turn, allowed La Cosa Nostra to control the Teamsters' electoral process and to install international union officers without ever subjecting them to a vote by the full membership. 160

(2) Extortion of union members' rights -- The theory of extortion in a union trusteeship case involves more than the simple scenario of a criminal placing a gun to the head of a union member and demanding his paycheck. This theory recognizes more subtle and pervasive (though no less effective) forms of extortion. In unions controlled by organized crime, extortion typically takes the shape of long-standing, notorious, and unremedied acts of violence, association of union officers with known criminals and organized crime figures, and appointment to union office of persons with extensive criminal records. This kind of obvious domination of a union by criminal elements may continue for so long that union members come to accept corruption of the union as an inevitability. A climate of fear and intimidation arises. Eventually, the union members give up any hope of exercising their basic rights to choose their own leaders and to manage their own affairs. 161

By creating, fostering, or tolerating such a situation, union officers violate the Hobbs Act. 162 The Hobbs Act declares generally that obstruction of, or interference with, commerce by means of extortion is a criminal offense. 163 To prove a Hobbs Act violation, the government must establish that: (i) the defendants induced their victims to part with property, (ii) through the use of fear, (iii) with an adverse effect on interstate commerce. 164

 [*597]  The range of property interests protected under the Hobbs Act is expansive. As the Second Circuit stated in United States v. Tropiano: 165

The concept of property under the Hobbs Act, as devolved from its legislative history and numerous decisions, is not limited to physical or tangible property or things, but includes, in a broad sense, any valuable right considered as a source or element of wealth and does not depend upon a direct benefit being conferred on the person who obtains the property. 166
 
Consequently, Hobbs Act prosecutions have focused on the coercive taking of numerous forms of property, both tangible and intangible, including union wages, 167 the right to make business decisions and to solicit business free from coercion, 168 and other interests. 169

(a) Property rights of the union membership -- As a consequence of La Cosa Nostra's infiltration of a union, union members may be forced to relinquish well-recognized property rights under the Labor Management Reporting and Disclosure Act of 1959 170 (LMRDA). Section 411 of the LMRDA, for example, provides that every member of a union shall have equal rights to nominate and elect candidates and to attend  [*598]  and participate at meetings. 171 Section 411 further provides that union members may assemble and express their views about candidates and union affairs. 172 The LMRDA goes on to provide, in section 501(a), that "[t]he officers, agents, shop stewards, and other representatives of a [union] occupy positions of trust in relation to [the] organization and its members." 173 Section 501(a) declares that these representatives owe a duty to hold the money and property of the organization for the benefit of the membership, to refrain from self-dealing, and to avoid conflicts of interest. 174

The LMRDA thus grants a host of tangible and intangible rights to union members. Several courts have held that these rights of union members are protected property rights under the Hobbs Act. In Rodonich v. House Wreckers Union, Local 95, 175 for example, the court expressly stated: "Many courts have held intangible business rights to be property under the Hobbs Act. Union rights are no exception. Accordingly, rights arising under the LMRDA are properly classified as property rights within the meaning of the Hobbs Act." 176 The Third Circuit, in United States v. Local 560, International Brotherhood of Teamsters, 177 reached the same conclusion, holding that the Hobbs Act does not distinguish between tangible and intangible property, 178 and that "the membership's intangible property right to democratic participation in the affairs of their union is properly considered extortable 'property' for purposes of the Hobbs Act." 179 Judge Edelstein, in United  [*599]  States v. International Brotherhood of Teamsters, 180 adopted the Third Circuit's reasoning in Local 560 and held that intangible rights are property rights and that the government's complaint, which alleged that the defendants "created an atmosphere wherein Union members were led to feel intimidated, threatened, or pressured in the exercise of their rights to Union democracy," stated a Hobbs Act claim. 181

The notion that a union member's right to participate in union affairs is inextricably linked with her economic interests seems intuitively obvious. The motivating force behind unionization, after all, is purely economic. The court in Rodonich, for example, rejected the defendant's contentions that union rights were "any less a 'source of wealth' than ordinary rights to do business." 182 "To the contrary," the court concluded, "it would appear that LMRDA rights provide many union members with a source of livelihood." 183

The legislative history of the LMRDA further confirms that LMRDA rights are economic rights. Senator John F. Kennedy, one of the sponsors of the LMRDA, concurred with another senator's statement during the course of debate that the rights enumerated in the Act "are economic rights . . . . They arise from economic problems and deal with economic democracy." 184

(b) Creation of a climate of fear -- Because the corruption of a union is often an insidious process, taking place over many years and through gradual development of ever greater control by criminal elements, it can be difficult to point to a single event wherein members were threatened with harm if they chose to exercise their democratic rights. To prove a Hobbs Act violation, however, it is not necessary to show that the membership's fear is a result of a direct threat of immediate  [*600]  harm. 185 Recognizing that "[f]ear is not defined or qualified" in the definition of extortion under the Hobbs Act, 186 courts, in searching for evidence of fear in a union's membership, have examined the entire factual setting. 187 For example, courts have recognized that a defendant need not have generated fear in his victim to be convicted of extortion; it will suffice if he exploited his victim's preexisting fear. 188 Courts have also upheld Hobbs Act convictions where fear was instilled or exploited by reference to the defendant's reputation for violence and organized crime affiliation. In United States v. Russo, 189 for example, the court permitted the admission of evidence regarding a defendant's reputation for involvement with La Cosa Nostra on the ground that his reputation created a fear of economic loss among members of a Teamsters local. 190 The defendants in that case, including a business agent of the local, were found to have violated the Hobbs Act because they "knew of and intentionally made use of" the members' fear. 191 Similarly, courts have recognized that simply mentioning the name of a notorious criminal can instill  [*601]  fear, 192 and that fear can exist where union members become aware that defendants are "underworld" or "strong-arm" men. 193

A textbook example of the creation and use of a climate of fear and intimidation to extort union members' rights appears in United States v. Local 560, International Brotherhood of Teamsters. 194 In that case, the court granted the government's request to put IBT Local 560 into trusteeship because the union had been captured and controlled by the Provenzano faction of the Genovese organized crime family. 195 The evidence showed that the provenzanos and their cohorts conducted a campaign of violence, murder, and threats of physical and economic injury against Local 560 members in order to extinguish all challenges to the Provenzanos' rule. 196 Evidence in the case included proof that, in 1961, Anthony Provenzano, then President of Local 560 and a Genovese family capo, recruited two men to kill Anthony Castellitto, a Local 560 member who opposed Provenzano's union leadership. 197 Discussing the Castellitto murder, United States District Judge Harold Ackerman recognized the pervasive effect that even a single profound violent act can have:

[T]he disappearance [of Castellitto] generated a perception among the membership that anyone who represented an actual or potential threat to the Provenzano Group's dominance and control over Local 560 ran the risk of physical injury. The nature and intensity of that perception has been such that it survives to the present day . . . . 198
 
The Third Circuit affirmed the district court's finding that, through such violence and intimidation, the Provenzano  [*602]  group had extorted "the membership's rights to democratic participation in Local 560." 199 Having cowed union members into abandoning control over the affairs of their union, the Provenzano group used IBT Local 560 for its own purposes -- embezzling money, appointing convicted criminals to union office, and extorting money from employers. 200 As for the officers of Local 560, the Third Circuit held that they had helped create and maintain the climate of fear and intimidation that "coerced a substantial portion of the membership into relinquishing their LMRDA rights." 201 The court observed that the extortion had been "achieved, not so much by direct physical assault . . ., but by more sophisticated and indirect physical and economic threats," such as making certain appointments to office, failing to remove certain appointees, making certain union expenditures, and "being recklessly indifferent to the . . . systematic misconduct of fellow incumbent officers." 202

Testimony from union members who have been threatened or beaten by mob-connected "goons" can become critical evidence that a climate of fear exists within a union. Admissions by officers of the union may also bolster this claim. 203 In a few instances, moreover, former members and associates of La Cosa Nostra have come forward with testimony concerning their own acts of violence. 204 Testimony from union members concerning their fears and their hesitance in exercising their rights may also help to establish this claim. 205  [*603]  Once the civil RICO plaintiff establishes the elements of property and extortion, the interstate commerce element of a Hobbs Act violation requires little additional proof. 206

(3) Aiding and abetting -- Union officers are liable for acts of extortion whether they participate directly or by aiding and abetting La Cosa Nostra corruption of the union. Aiding and abetting liability is predicated on title 18 of the United States Code, which provides: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 207 To establish liability for aiding and abetting, the plaintiff must prove: "(1) commission of [an] underlying crime, (2) by a person other than the defendant, (3) a voluntary act or omission by the person charged as an aider or abettor, with (4) the specific intent that his act or omission bring about the underlying crime." 208

Aiding and abetting liability of union officers can follow both from their actions, e.g., appointment of known criminals to union office, and their failures to act, e.g., failure to investigate evidence of corruption. Aiding and abetting liability for a failure to act flows from a union officer's fiduciary duty to the union membership. As courts have recognized, when a union officer has a duty to act, his failure to do so can support a finding of criminal liability. 209 This concept appears prominently in the area of corporate law. For example, in United  [*604]  States v. Andreadis, 210 the court upheld the fraud conviction of a corporate officer even though he denied knowledge that advertisements for his product were false. 211 The Andreadis court emphasized that:

[A] person in [the defendant's] shoes should not be able to insulate himself from liability . . . by contending he was not told that the claims made for his product by his advertising agency were false, even if the contention should happen to be true. . . . [The defendant] had some affirmative duty to insure that the claims the agency made . . . were true. A person in [the defendant's] shoes, having failed totally to discharge this responsibility in even the slightest measure, should not be permitted to escape the consequences of his inattention. 212
 
Thus, in Andreadis, and in a wide variety of other cases involving corporations, courts have found the defendant officers' failure to investigate and rectify criminal activity sufficient to support the inference that the defendant intended to bring about the underlying crime. 213 As the Andreadis court argued, 214 cultivating ignorance will not serve to insulate a defendant from liability. 215

 [*605]  This theory of aiding and abetting liability plainly extends to the union context. In a leading case on aiding and abetting by union officials, United States v. Local 560, International Brotherhood of Teamsters, 216 the district court, after emphasizing the affirmative statutory duty that union officers owe to the union membership, 217 found that the Teamsters Local 560 Executive Board had aided and abetted multiple acts of extortion by La Cosa Nostra figures by failing to respond to clear evidence of criminal activity within the union. 218 In affirming the district court's decision, the Third Circuit noted that the district court had properly recognized that "if an individual fails to act when he has an affirmative duty to do so, negative inferences concerning his intent can be drawn from this inaction." 219 Relying upon the "elevated duty of care owed to union members by their officers," 220 the district court drew a negative inference based on the demonstrated unwillingness of the union's executive board to take any action to remedy pervasive and long-standing corruption. 221

Failure to act in the context of demonstrated, pervasive, long-standing organized crime corruption of a union may thus amount to more than mere indolence or mismanagement. In such a setting, failure to remedy or even to investigate union-related corruption can constitute an active show of support for organized crime domination of the union. For example, union officers may allow convicted felons to obtain office and remain  [*606]  there. At the time the Teamsters complaint was filed, one defendant, Teamsters Vice-President Harold Friedman, stood indicted for his role in arranging a "ghost" employee scheme involving a Teamsters local. Yet, even after the suit was filed, Friedman remained in office. 222 Such acts clearly contain an element of affirmative aid to criminal elements.

Also, because most union constitutions grant union officers the authority to expel corrupt members 223 and to impose trusteeships on corrupted local unions or other subordinate bodies, 224 courts should draw an adverse inference from the union leadership's failure to act in the face of a persistent pattern of illegal conduct affecting the union. 225

Finally, when union leaders actively support and associate with known La Cosa Nostra figures, these affirmative acts also may implicate union leaders in the criminal RICO violations committed by La Cosa Nostra. For example, the Local 560 226 court found "the repeated appointments to union office . . . of known or reputed criminals" to be evidence of extortion of the  [*607]  membership's LMRDA rights in violation of the Hobbs Act. 227 Misappropriations of union funds are also extortions of union members' property rights, a violation of the Hobbs Act, and a RICO predicate offense. Years before the Local 560 case, the union had voted pay increases to former union officer Anthony Provenzano, who declined at the time to accept them. An imprisoned Provenzano later requested the money -- approximately $ 200,000 -- for what he called "back salary due and owing to him." 228 The union's executive board voted to give Provenzano the money. 229 The Local 560 court concluded that these payments were evidence that the union's officers "intentionally aided and abetted" La Cosa Nostra in the "further extortion of membership rights," thus violating the Hobbs Act. 230

(4) Mail fraud -- Most unions have some sort of union newspaper or newsletter that they regularly send to union members through the mail. 231 If in these newsletters union officers knowingly fail to acknowledge, or misrepresent the influence of organized crime over the union, a case for mail fraud may be made. By using a newspaper or newsletter to assure the membership that organized crime has no influence over the union, while at the same time facilitating and profiting from La Cosa Nostra's exploitation of the union, a union officer may engage in a scheme to defraud the membership.

The federal mail fraud statute provides that whoever devises a "scheme or artifice to defraud," and for purposes of executing or attempting to execute the fraud places mail in any post office, or "knowingly causes to be delivered by mail" any matter, is guilty of a crime. 232 As courts have held, the mail fraud statute can be violated where a fiduciary conceals "material information which he is under a duty to disclose to another under circumstances where the non-disclosure could or does result in harm to the other." 233 Thus, for example,  [*608]  in Ingber v. Enzor, 234 the Second Circuit upheld the mail fraud conviction of a municipal official who had breached his fiduciary duty, to the economic detriment of the municipality. 235 The court specifically noted that the municipal official's concealment of his conflict of interest permitted his scheme to proceed. 236

In precisely the same way, a union officer may conceal his conflict of interest, i.e., his allegiance to La Cosa Nostra, at the expense of the union membership, thus permitting his own schemes to proceed. As the court held in United States v. International Brotherhood of Teamsters, 237 allegations that organized crime played a role in decisions of the Teamsters General Executive Board sufficed to state a mail fraud claim and supported the government's RICO allegations. The court noted that the alleged mail fraud aided La Cosa Nostra in its maintenance of control of the enterprise:

Although, as the IBT points out, the acts alleged in this portion of the complaint presuppose a degree of control of the enterprise, the concealment would definitely further the maintenance of such interest or control. There can be little doubt that a public announcement by the [General Executive Board] that it was, as the Government alleges, under the control of organized crime figures would have dealt a serious blow to the continued maintenance of an interest in the alleged racketeering enterprise. 238
 
 [*609]  This ruling is consistent with a host of decisions, principally in the securities investment area, which hold that the mail fraud statute is violated whenever a defendant uses the mails to facilitate a scheme to conceal material facts from defrauded investors. 239

c. Evidentiary issues -- (1) Admissibility of certain government investigative reports -- As mentioned earlier, part of the plaintiff's evidence in a civil RICO action may come from prior government investigations into allegations of corruption within a particular union. 240 One example of such a report is the 1986 report of the PCOC. 241

The PCOC was created by a presidential executive order in 1983. 242 The executive order directed the PCOC, inter alia, to "make a full and complete national and region-by-region analysis of organized crime" and to "develop in-depth information on the participants in organized crime networks." 243 The PCOC was established as a nonpartisan body composed of nineteen members with extensive experience in the field of criminal justice. 244 Congress empowered the PCOC to issue  [*610]  subpoenas for the testimony of witnesses and the production of documents and to apply, with the assistance of the Department of Justice, for orders compelling testimony and granting immunity. 245 The PCOC had a staff of more than twenty lawyers and investigators who conducted hundreds of interviews and depositions and reviewed documents and other information provided by many law enforcement and other public agencies as well as the private sector. 246

In April 1985, the PCOC held three days of public hearings in Chicago on the subject of organized crime and labor racketeering. 247 In March 1986, the PCOC released a 393-page report. 248 The report concluded that at least four international unions affiliated with the AFL-CIO, the International Longshoremen's Association, the Hotel Employees and Restaurant Employees International Union, the International Brotherhood of Teamsters, and the Laborers International Union of North America, as well as several independent unions, such as the International Industrial Production Employees Union and the International Shield of Labor Alliances, have been dominated by organized crime. 249

A similar report was released in 1987 by the New York State Organized Crime Task Force (OCTF). 250 The New York State Legislature created the OCTF in 1970, with a mandate to investigate and prosecute multicounty organized crime activities in the state. 251 The director of the OCTF, jointly appointed by the governor and the state attorney general, 252 commands a staff of over twenty investigators,  [*611]  analysts, lawyers, and consultants. 253 Prior to issuing the 1987 report, the OCTF conducted a two-year investigation, 254 drawing on its statutory powers to compel testimony, subpoena documents, apply for search warrants, and enlist the assistance of state and local law enforcement agencies. 255 The 1987 Report contains extensive information concerning organized crime influence over labor unions involved in the construction industry. 256 Other states have produced similar reports. 257

These reports, though not direct evidence of labor racketeering, should be admissible in court under the exception to the hearsay rule provided by Rule 803(8)(C) of the Federal Rules of Evidence. Rule 803(8)(C) provides that public "records and reports" that set forth "factual findings resulting from an investigation made pursuant to authority granted by law" may be admitted by civil plaintiffs "unless the sources of information or other circumstances indicate lack of trustworthiness." 258 The PCOC Report and the OCTF Report meet the basic requirements for admissibility under Rule 803(8)(C). Each is a report. Each was generated by a public office or agency. Each sets forth factual findings resulting from an investigation made pursuant to authority granted by law. Thus, pursuant to Rule 803(8)(C), these reports are presumptively admissible. 259 The reports must be presumed admissible, moreover, even if they contain "conclusion[s]" or "opinion[s]" in addition to their factual findings. 260

Once it is established that these reports meet the basic requirements of the Rule, the reports may be excluded only if  [*612]  defendants establish that "the sources of information [contained in the reports] or other circumstances indicate lack of trustworthiness." 261 The burden rests squarely on the defendants to establish lack of trustworthiness. 262 Further, the burden is on the defendants to demonstrate that their objections to trustworthiness, if any, call into question the admissibility, rather than simply the weight and credibility, of the reports. 263

The Advisory Committee note for Rule 803(8)(C) sets forth a nonexclusive list of factors that a court may consider in determining whether a government investigative report is admissible: (1) the timeliness of the investigation; (2) the special skill or experience of the investigating officials; (3) whether a hearing was held and the level at which it was conducted; and (4) possible problems involved in preparing a report in anticipation of litigation. 264 Courts have indicated that, in light of this list, and the difficulty of defining precisely what is and is not "trustworthy," it is within the trial court's sound discretion to determine whether a report should be admitted into evidence. 265 It appears that all of the factors cited by the Advisory Committee support the admission of the PCOC and OCTF Reports. 266

 [*613]  In the Local 1804-1 case, 267 Judge Leonard B. Sand admitted into evidence excerpts from the PCOC and other government reports. 268 Judge Sand ruled that all of the Advisory Committee requirements were satisfied. 269 Even if these reports are not admitted for their truth, they may of course, be admitted to demonstrate that union officers knew, or should have known, about corruption of their unions. 270

(2) Admissibility of electronic surveillance evidence -- As we will discuss below, tape recordings and transcripts of conversations intercepted pursuant to Title III of the Organized Crime Control and Safe Streets Act (Title III) may be discoverable by a private plaintiff, at least to the extent that those materials have been used in prior proceedings. 271 Once the private plaintiff has gained access to Title III materials, those materials may be received as evidence in a subsequent civil RICO proceeding so long as the communications reflected in  [*614]  the materials were not intercepted in violation of the statute. 272 The only grounds for suppression of Title III materials are that the communication was not lawfully intercepted, that the order authorizing the interception was insufficient on its face, or that the interception was not made in conformity with the order authorizing the interception. 273

Defendants who wish to challenge previous rulings on the admissibility of Title III materials must establish that they have standing to do so, that they are not estopped from doing so, and that they have valid reasons for relitigating these issues. Under Title III, only an "aggrieved person" has standing to move to suppress the contents of communications intercepted pursuant to the statute. 274 An "aggrieved person" is defined as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." 275 A person who was not party to an intercepted conversation thus lacks standing to challenge the admissibility of Title III materials. 276

Even if a defendant establishes that he has standing to make a motion to suppress Title III materials, the defendant must face the fact that the suppression issue was litigated in a prior criminal case. If the defendant was a party to that prior criminal proceeding, he may be collaterally estopped from relitigating the issue. In Allen v. McCurry, 277 for example, the Supreme Court held that a party seeking to bring a damages action for a civil rights violation arising out of an  [*615]  allegedly illegal search would be collaterally estopped by the denial of his motion to suppress in a prior state court criminal proceeding against him if he had been given a full and fair opportunity to litigate his federal claims in the prior proceeding. 278 As the Court noted, "[u]nder collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." 279

Finally, in the few instances in which a defendant both has standing and was not a party to a prior criminal proceeding in which the recorded conversation was admitted into evidence, he remains obligated to demonstrate why the recorded conversation should not be admitted in the subsequent civil RICO action. 280 In that unlikely event, the plaintiff can rely upon the ruling of the court that previously admitted the evidence at least for precedential value. Unless the defendants can establish some basis for suppression that was not previously litigated, the plaintiff may argue that there is little point in considering anew arguments made and rejected in prior criminal proceedings. 281

D. Withstanding a Motion to Dismiss

Once a civil RICO action is brought against the union leadership, the defendants most likely will respond with a motion to dismiss. The defendant may base such a motion on any of a number of theories. In prior civil RICO actions involving the government, these theories have included the following: that the complaint infringes on the defendants' rights under the first amendment; 282 that civil RICO actions are preempted by previously enacted federal labor laws; 283 and that a complaint has failed to join an indispensable  [*616]  party. 284 Civil RICO defendants may also move for a more definite statement of plaintiff's allegations, 285 or for dismissal on the grounds that the plaintiff has failed to plead fraud with particularity, 286