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1996 U.S. Dist. LEXIS 4651, *

INVESTIGATIONS OFFICER, Claimant, - against - ANTHONY SCLAFANI, 12 Crown Place, Staten Island, NY 10312, Respondent.


94 Civ. 6487 (RWS)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

1996 U.S. Dist. LEXIS 4651


April 9, 1996, Decided  
April 11, 1996, FILED

CORE TERMS: conversation, consent decree, tape, contractor, organized crime, constituent, audio, knowingly, foreman, beating, deposition, racketeering, declaration, attribution, demanded, boss, surveillance, videotape, video, logs, wit, recorded, captain, taped, guy, associating, referenced, non-union, expulsion, recounts

COUNSEL:  [*1]  For THE UNITED STATES OF AMERICA, ROBERT B. REICH, Secretary of the United States Department of Labor, plaintiffs: Manvin S. Mayell, [COR LD NTC], Assistant U.S. Attorney, New York, NY. Alan N. Taffet, AUSA, [COR LD NTC], U.S. Attorney's Office, New York, NY. Aimee B. Wolfson, [COR LD NTC], U.S. Attorneys Office, New York, NY. Lisa A. Jonas, [COR LD NTC], Assistant United States Attorney, New York, NY.
 
For MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, defendant: David W. Elbaor, [COR LD NTC], New York, NY.
 
For EXECUTIVE BOARD OF THE MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, SALVATORE LANZA, Secretary/Treasurer, BRIAN J. LOIACONO, Recording Secretary, defendants: Joseph D. Pizzurro, [COR LD NTC], Curtis Mallet-Prevost Colt & Mosle, New York, NY.
 
For JAMES LUPO, President, Union Trustee to the Trust Funds, defendant: Dominic F. Amorosa, [COR LD NTC], Dominic F. Amorosa, New York, NY.
 
For CHRISTOPHER SURIANO, Executive Board Member, defendant: Kevin O'Rourke Moore, [COR LD NTC], Moriwaki & Moore, P.C., Tarrytown, NY.
 
For ERNEST M. MUSCARELLA, defendant: George L. Santangelo, [COR LD NTC], Santangelo Santangelo & Cohen, New York,  [*2]  NY.
 
For ANTHONY ZOTOLLO, defendant: Joseph A. Fiore, [COR LD NTC], Albanese Albanese & Fiore, Garden City, NY.
 
For JOSEPH FATER, defendant: Andrew M. Lawler, [COR LD NTC], Andrew M. Lawler, P.C., New York, NY.
 
For BALDO MULE, defendant: Cathy L. Waldor, Esq., [COR LD NTC], Waldor Carlesimo & Biancone, P.C., Montclair, NJ.
 
For RONALD MICELI, defendant: Diarmuid White, [COR LD NTC], Diarmuid White, New York, NY.
 
ALBERT SOUSSI, defendant, [PRO SE], Islandia, NY.
 
For THOMAS FITZGERALD, MEDICAL DIAGNOSTIC TESTING, INC., defendants: Mark R. Yarkin, [COR LD NTC], Mark R. Yarkin, East Meadow, NY.
 
For WILFRED L. DAVIS, defendant: Michael Kennedy, [COR LD NTC], Michael Kennedy, P.C., New York, NY.
 
For ARTHUR M. BLAU, defendant: Steven G. Storch, [COR LD NTC], Storch Amini & Munves, P.C., New York, NY.
 
For ONOFRIO MACCHIO, aka "Malfie", defendant: Richard A. Rehbock, [COR LD NTC], Law Office of Richard A. Rehbock, Esq., New York, NY.
 
For MICHAEL CAPRA, aka "Mikey Cap", defendant: James J. Culleton, [COR LD NTC], Culleton, Marinaccio and Foglia, White Plains, NY.
 
For TIC INTERNATIONAL CORP., third-party defendant: Peter  [*3]  N. Wang, [COR LD NTC], Friedman, Wang & Bleiberg, P.C., New York, NY.
 
For ALFIO DIFRANCO, DIANE MISTRETTA, third-party defendants: Stephen H. Weiner, [COR LD NTC], NY, NY.
 
For ANTHONY ZOTOLLO, third-party plaintiff: Joseph A. Fiore, [COR LD NTC], Albanese Albanese & Fiore, Garden City, NY.
 
For MICHAEL LABARBARA, JR. aka "Big Mike", cross-claimant: Larry Bronson, [COR LD NTC ret], N.Y., NY.
 
For MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, cross-defendant: David W. Elbaor, [COR LD NTC], New York, NY.
 
For EXECUTIVE BOARD OF THE MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, SALVATORE LANZA, BRIAN J. LOIACONO, cross-defendants: Joseph D. Pizzurro, [COR LD NTC], Curtis Mallet-Prevost Colt & Mosle, New York, NY.
 
For MICHAEL PAGANO, JR., cross-defendant: Neal J. Hurwitz, [COR LD NTC], New York, NY.
 
For ERNEST M. MUSCARELLA, cross-defendant: George L. Santangelo, [COR LD NTC], Santangelo Santangelo & Cohen, New York, NY.
 
For ANTHONY ZOTOLLO, cross-defendant: Joseph A. Fiore, [COR LD NTC], Albanese Albanese & Fiore, Garden City, NY.
 
For BALDO MULE, cross-defendant: Cathy L. Waldor, Esq., [COR LD NTC], Waldor Carlesimo  [*4]  & Biancone, P.C., Montclair, NJ.
 
For RONALD MICELI, cross-defendant: Diarmuid White, [COR LD NTC], Diarmuid White, New York, NY.
 
LOUIS CASCIANO, cross-defendant, [PRO SE], Central Islip, NY.
 
For THOMAS FITZGERALD, MEDICAL DIAGNOSTIC TESTING, INC., cross-defendants: Mark R. Yarkin, [COR LD NTC], Mark R. Yarkin, East Meadow, NY.
 
For WILFRED L. DAVIS, cross-defendant: Michael Kennedy, [COR LD NTC], Michael Kennedy, P.C., New York, NY.
 
For ARTHUR M. BLAU, cross-defendant: Steven G. Storch, [COR LD NTC], Storch Amini & Munves, P.C., New York, NY.
 
For ONOFRIO MACCHIO, aka "Malfie", cross-defendant: Richard A. Rehbock, [COR LD NTC], Law Office of Richard A. Rehbock, Esq., New York, NY.
 
For MICHAEL CAPRA aka "Mikey Cap", cross-defendant: James J. Culleton, [COR LD NTC], Culleton, Marinaccio and Foglia, White Plains, NY.
 
For MICHAEL LABARBARA, JR. aka "Big Mike", cross-defendant: Larry Bronson, [COR LD NTC ret], N.Y., NY.

JUDGES: Lawrence B. Pedowitz, Monitor. Robert W. Sweet, United States District Judge

OPINIONBY: Lawrence B. Pedowitz

OPINION: OPINION OF THE MONITOR

Pursuant to a consent order entered in United States v. Mason Tenders,  [*5]  et al., 94 Civ. 6487 (RWS), on December 27, 1994 (the "Consent Decree"), this matter has been presented to me for adjudication. On July 28, 1995, a hearing was conducted at which evidence was received and arguments were heard. Michael Chertoff, Esq., the Investigations Officer, presented evidence and argument in support of the charges. The Respondent, Anthony Sclafani, was represented by Martin Geduldig, Esq. Thereafter, in August 1995, I received additional correspondence from counsel concerning this matter.

The following constitutes my decision:
 
I. Background

Respondent Anthony Sclafani is a member and Business Agent of Laborers' Local Union No. 51 ("Local 51"), a constituent local of the Mason Tenders District Council of Greater New York ("MTDC"). The Investigations Officer's Charge against Respondent, which is attached hereto, accuses him, in 27 counts, of five broad categories of prohibited conduct:

1. Racketeering, in violation of paragraph 3(a) of the Consent Decree, by demanding and receiving a cash payment of approximately $ 4,000 from a contractor (Charge 1);
 
2. interference with the proper conduct of union business, in violation of Article III,  [*6]  Section 3(d) of the Local 51 Constitution, by knowingly involving members of La Cosa Nostra in the affairs of the MTDC and its constituent locals (Charges 2-8);
 
3. breach of his obligation of undivided loyalty to the MTDC and Local 51, in violation of 29 U.S.C. 501, by acting for the benefit of La Cosa Nostra and to the detriment of the MTDC and Local 51 (Charges 9-15);
 
4. knowing association with members and associates of La Cosa Nostra, in violation of paragraph 3(b) of the Consent Decree (Charges 16-22); and
 
5. obstruction of the Investigations Officer, in violation of paragraph 3(c) of the Consent Decree, by refusing to produce records requested by the Investigations Officer and by making false statements at a deposition by the Investigations Officer (Charges 23-27). *

 
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* Prior to the hearing, the Investigations Officer advised that he would not offer proof on Charges 4 and 11. Mr. Geduldig contends in a post-hearing letter that no proof was offered to support Charges 23 and 24 as well.
 
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The bulk of the charges relate to Respondent's interactions with one James Messera, a member of Laborers' Local Union No. 104 and, according to the Investigations Officer, a captain in the Genovese organized crime family (the "Genovese Family"). The Investigations Officer contends that Messera exercised control over the affairs of the MTDC and its constituent locals on behalf of the Genovese Family. Respondent is alleged to have known this fact and to have nonetheless associated with Messera and participated with him in discussions of union affairs and the involvement of La Cosa Nostra therein. Sclafani is also alleged to have discussed union-related organized crime activity with various Genovese Family associates of Messera and, in one such discussion, to have recounted an incident in which he himself engaged in racketeering activity in connection with his union office, namely, the solicitation of a substantial cash payment from a contractor.
 
II. The "Just Cause" Standard

Pursuant to paragraph 7(c)(1) of the Consent Decree, charges brought by the Investigations Officer are to be adjudicated according to a "just cause" standard. In similar circumstances, it has been held  [*8]  that "just cause" is established when the Investigations Officer proves charges by a preponderance of the evidence. See United States v. International Bhd. of Teamsters, 814 F. Supp. 1165, 1168 (S.D.N.Y. 1993) ("Ligurotis") ("the Investigations Officer has the burden of establishing just cause by a preponderance of the evidence"); United States v. International Bhd. of Teamsters, 754 F. Supp. 333, 337 (S.D.N.Y. 1990) ("Salvatore") (same).
 
III. Findings

As noted above, Respondent is charged with over 20 counts of prohibited activity. Below, I consider a number of the most substantial. Finding those to be amply supported by the evidence and to warrant Sclafani's permanent expulsion from the union, I do not consider the others.

A. Audio Tapes and Transcripts

Much of the evidence against Respondent consists of audio tapes and corresponding transcripts resulting from a court-ordered surveillance of 262 Mott Street, New York, New York, conducted by the FBI. Transcript of July 28, 1995 Hearing ("Tr.") at 29-30 (testimony of Agent Wendy B. Brouwer). The Mott Street Location was a social club frequented by James Messera and his associates. Hearing Exhibit ("Ex.")  [*9]  5 at P 6 (declaration of Agent Paul W. Meyer, Jr.).

At the hearing, Mr. Chertoff proffered the testimony of Agent Wendy B. Brouwer of the FBI to establish a foundation for the tapes' admissibility and to establish the accuracy of tape transcripts. Agent Brouwer has been an FBI agent for nearly 13 years. Tr. at 28. In August or September, 1991, she was assigned as a case agent on the civil RICO investigation of the MTDC, which culminated in the filing by the Government of the RICO action that led to entry of the Consent Decree. Tr. at 29.

Agent Brouwer testified that, in April, 1989, federal officials initiated court-ordered audio surveillance of the Mott Street location; video surveillance was added approximately two months later. Tr. at 30. As part of her work on the MTDC investigation, Agent Brouwer, in 1992, was called upon to transcribe a number of the audio tapes generated from the Mott Street location surveillance, including those in evidence here. She described how she performed that process. Tr. at 32-38.

Agent Brouwer testified that she first gave the audio tapes to her office's word processing unit for rough transcription. She then took that transcription and used the  [*10]  audio tapes, audio logs, videotapes, video logs, and surveillance photographs to generate final transcripts with specific attributions. The audio logs had been generated contemporaneously with the tapes and listed the individuals present at the Mott Street location during the time each tape was recorded. The video tapes, which bore date stamps indicating when they had been recorded, provided visual confirmation of the individuals present at the location at particular times. They were backed up by the video logs, which listed individuals observed to be present at the time each video tape was recorded. Id.

As would be expected, Agent Brouwer was initially unfamiliar with the individual voices heard on the audio tapes. She thus relied heavily on the audio logs, video tapes, and video logs in making voice identifications. Over time, as she continued her transcription work, she grew increasingly familiar with the various voices, and her familiarity aided her in the attribution process. She also relied upon internal references in the audio tapes (i.e., one party addressing another by name) where possible. Id.

Respondent's counsel cross-examined Agent Brouwer about certain of  [*11]  her attributions in the transcripts submitted as evidence here, seeking to have her acknowledge several supposed errors. Tr. at 38-84. In all cases, the Agent stood by the attributions reflected in the transcripts. Based on the Agent's testimony, as well as my own hearing of the tapes, I find that the tapes are admissible and that the transcripts -- including the attributions contained therein -- are substantially accurate. Where Respondent has questioned the accuracy of or attributions reflected in portions of the tape transcripts relied upon in this decision, I will identify the disagreement.

B. Charge 16

Charge 16 alleges that Sclafani violated paragraph 3(b) of the Consent Decree by knowingly associating with a member or associate of La Cosa Nostra, specifically, James Messera. Paragraph 3(b) prohibits members of the MTDC and its constituent locals from knowingly associating with members or associates of organized crime. Moreover, paragraph 5(a) authorizes the Investigations Officer to prosecute instances of such conduct occurring after January 1, 1982. *
 
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* The Court of Appeals has held that the imposition of discipline based on knowing association prior to the entry of a consent decree of the sort entered here does not violate due process. See United States v. International Bhd. of Teamsters, 941 F.2d 1292, 1297 (2d Cir. 1991), cert. denied, 502 U.S. 1091 (1992).
 
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The Consent Decree provides that the term "knowingly associating" has "the meaning ascribed to it in the context of the adjudication, by the Second Circuit, of disputes under the consent decree in United States v. International Brotherhood of Teamsters, 88 Civ. 4486 (DNE) (S.D.N.Y.)." Consent Decree P 3. For present purposes, therefore, one may be said to "knowingly associate" when he or she makes a "calculated choice" to associate with one known to be a member or associate of La Cosa Nostra. See United States v. International Bhd. of Teamsters, 19 F.3d 816, 822 (2d Cir.) cert. denied, 115 S. Ct. 199 (1994). More must be shown than "incidental or fleeting" contact with such a person to establish knowing association. United States v. International Bhd. of Teamsters, 824 F. Supp. 410, 414 (S.D.N.Y. 1993) ("DiGirlamo"), aff'd, 19 F.3d 816 (2d. Cir.), cert. denied, 115 S. Ct. 199 (1994). Contact, however, need not be for an illegal purpose; contact for a social or business purposes is prohibited as well. Id.

In the instant case, there is more than ample evidence to conclude that Respondent knowingly associated with James Messera. The taped conversations  [*13]  between Sclafani and Messera presented by the Investigations Officer establish beyond question that the two associated with each other and, indeed, were quite familiar. See Exs. B, E, F and K. Given the length and detail of their conversations, described further below, it is also clear that the contact between the two could not fairly be characterized as incidental or fleeting.

Messera's affiliation with organized crime is established by the declarations of Alphonse D'Arco, former Acting Boss of the Luchese organized crime family, and Special Agent Paul W. Meyer, Jr. of the FBI. * D'Arco identifies Messera as a "capo" in the Genovese Family and states that Messera exercised influence on behalf of the Genovese Family over MTDC Locals 13, 37, 51 and 59. Ex. O at P B2. Messera, D'Arco says, also sought to expand the Genovese Family's influence to MTDC Local 46 and participated in numerous meetings with representatives of the Luchese Family, including D'Arco himself, in furtherance of that goal. Id. at C.
 
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* The D'Arco and Meyer declarations are hearsay. However, hearsay evidence, if reliable, is admissible in union disciplinary proceedings. See United States v. International Bhd. Teamsters, 964 F.2d 1308, 1312 (2d Cir. 1992) ("Cimino II"). I find the D'Arco declaration to be reliable because it was sworn under penalty of perjury and as part of a cooperation agreement with the Government under which D'Arco was obligated to tell the truth or face severe consequences. Additionally, in its description of the dispute between the Genovese and Luchese Families, the D'Arco declaration is corroborated by the tape labeled Exhibit D.

I find the Meyer declaration to be reliable because it too was sworn under penalty of perjury and by an FBI Agent with more than 16 years experience. Additionally, Agent Meyer's statements concerning the individuals observed at the Mott Street social club are corroborated by many of the taped conversations in evidence, which show many of the people cited by Meyer to have indeed been present at that location and engaged in compromising conversations. See Cimino II, 964 F.2d at 1312; United States v. International Bhd. of Teamsters, 782 F. Supp. 238, 242 (S.D.N.Y. 1992) ("McNeil"); United States v. International Bhd. of Teamsters, 777 F. Supp. 1130, 1133 (S.D.N.Y. 1991) ("Cimino I"), aff'd, Cimino II, supra.
 
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Agent Meyer also identifies Messera as a Genovese Family captain. Ex. 5 at P 5. Meyer, who over approximately seven years conducted a number of investigations of the MTDC and its constituent locals, describes how court-ordered surveillance established the Mott Street Location as Messera's social club and the meeting place of Messera's "crew." Id. Members and associates of the Genovese Family, including Respondent Sclafani, Meyer states, met at the Mott Street location "on an almost daily basis to discuss illegal activity often related to the affairs of the [Mason Tenders] District Council, the Locals and the Trust Funds." Id. at PP 6, 7. Ultimately, Agent Meyer states, one of his investigations led to the indictment of Messera and several of his associates in United States v. Messera, et al., 90 Cr. 483 (CSH) (S.D.N.Y. 1990). Id. at P 3. Messera pleaded guilty to RICO conspiracy charges involving loansharking offenses. Id. See also Tr. at 30-32 (testimony of Agent Brouwer).

The taped conversations between Sclafani and Messera, as well as taped conversations involving Sclafani and others, further establish Messera's affiliation with organized crime and prove  [*15]  Sclafani's knowledge of that fact. Exhibit D, for example, is a tape recording of an August 1, 1989 conversation in which Messera does not participate. Sclafani claims that he too did not participate in this discussion. Ex. T at 2; Tr. at 59, 65, 66. However, my hearing of the tape, my comparison of the tape with others where Sclafani does not deny participating in discussions, and the testimony of Agent Brouwer, see pp. 4-6, infra, lead me to conclude that the transcript showing him as a participant is accurate. *
 
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* During the hearing, Agent Brouwer testified that a videotape of the August 1, 1989 conversation was available for the parties' review. Tr. at 68-69. I suggested to counsel that they examine the videotape and then advise me of their positions as to Respondent's presence and participation. Id. I reiterated this suggestion at the conclusion of the hearing as to all videotapes available for review where Respondent claimed he had not been present. Tr. at 144-45.

Subsequently, counsel for Respondent sent me a letter, dated August 7, 1995, in which he stated that he had reviewed videotapes of conversations which had taken place on June 22, 1989 (Ex. F) and June 26, 1989 (Ex. J). Counsel conceded Respondent's presence during those conversations, though he disputed a number of unspecified transcript attributions. Significantly, counsel for Respondent did not address the issue of Respondent's participation in the conversation of August 1, 1989.
 
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Exhibit D reflects discussion of a physical beating that had been administered to one Edward DioVisalvo and how DioVisalvo and the other individuals present -- including Respondent Sclafani, Albert Soussi, Louis Casciano, Jerome Basile and Onofrio Macchio * -- might retaliate. While the circumstances surrounding DioVisalvo's beating are not entirely clear from the transcript of the conversation itself, the declaration of Alphonse D'Arco supplies the missing context. D'Arco explains that the beating resulted from a dispute between the Luchese and Genovese crime families over control of Local 46, a constituent local of the MTDC. DioVisalvo occupied a position within Local 46 as a representative of the Genovese family. He was beaten, D'Arco states, by associates of the Luchese family in an attempt to oust him -- and the Genovese family -- from the local. D'Arco himself ordered the assault. Exhibit O at C.
 
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* Each of these individuals is identified by Agent Meyer as an associate of James Messera and the Genovese Family. Ex. S at PP 3, 7. Soussi, Casciano and Basile were indicted in United States, v. Messera, et al., 90 Cr. 483 (CSH) (S.D.N.Y. 1990). Each pled guilty, Soussi to RICO conspiracy charges involving loansharking and aiding and abetting the receipt of illegal labor payments. Id.

Macchio was charged by the Investigations Officer with, inter alia, knowing association. However, the Charge was dropped after the Government advised that it had agreed upon a Consent Judgment with Macchio in United States v. Mason Tenders, et al. barring him from contact with persons associated with the MTDC or any of its constituent locals.
 
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With that background, it becomes clear that the participants in the conversation reflected in Exhibit D are discussing (i) the fact that DioVisalvo's beating had to have been ordered by "higher-ups" in the Luchese Family (Ex. D1 at 25-26); (ii) the history of the conflict between the Luchese and Genovese families (Id. at 23-27); and (iii) the advisability of securing authorization from Genovese Family captain James Messera before taking retaliatory action on behalf of the Genovese Family (Id. at 27-28).

For present purposes, the latter aspect is the most significant. As the parties discuss whether to interrupt Messera's vacation, Sclafani, in the course of urging prompt, violent action, confirms his knowledge of Messera's station in the Genovese Family hierarchy:

SCLAFANI: Knock them, hit them with fucking baseball bats and then let them come. Where do we find these motherfuckers?
 
[UNIDENTIFIED]: The only thing is, the only thing is, you gotta tell JIMMY. You gotta tell fuckin JIMMY.
 
SCLAFANI: Yeah. What good is it? You can't tell him now, he's on vacation. You gotta call, you gotta tell this guy what happened to this guy.
 
MACCHIO: This is something  [*18]  important ANTHONY, this ain't no . . .
 
SCLAFANI: Yeah. You know what he's gonna tell you, JIMMY? Just leave it alone till I get back.
 
Id. at 27.

Sclafani also recounts efforts he and Messera undertook prior to the beating to resolve the dispute over Local 46 with Dominick Truscello and Alphonse D'Arco of the Luchese Family:

CASCIANO: . . . They can't tell these guys to give him a fucking beating.
 
SCLAFANI: You're right, but don't you understand, the first, second time we went there me and JIMMY right.
 
MACCHIO: Yeah right. The guy didn't want to come out.
 
SCLAFANI: No no no no. Nobody was there, we left a message.
 
MACCHIO: With DOMINIC [sic].
 
SCLAFANI: Right. I went to DOMINIC [sic] that night. I said DOMINIC [sic], this guy AL, no no no, I say this AL, where is he? No, that's --, he's the skipper.
 
Id. at 23-24. See also id. at 24-25; Exhibit O at P C3. Thus, the conversation reflected in Exhibit D strongly supports the proposition that Respondent knew Messera to be a member of La Cosa Nostra and that Messera was improperly involved in the affairs of the union.

Exhibit C, which reflects a conversation on November  [*19]  30, 1989, is another instance where Respondent demonstrates his awareness of Messera's role in organized crime. The conversation is between Sclafani and Onofrio Macchio and concerns a jurisdictional dispute between Local 23 and Local 51. The dispute was resolved, Sclafani recalls, when he met with a representative of Local 23 named Joe and instructed him not to place any more Local 23 men on job sites in Local 51's territory without prior authorization. Ex. C1 at 3-7.

The conversation then turns to the identity of Joe's "boss." Sclafani states that he is unable to remember the name of the "boss." He recalls that the unnamed boss is "with us" and that he "used to be with FAT TONY." Id. at 7. Fat Tony, Sclafani later says, was replaced by a man named Barney. Barney had replaced a man referenced as Sammy, who was "under" Fat Tony before a man called Fish. Fish is described by Sclafani as a "rat cocksucker." Id. at 10. Sclafani adds that Barney is somehow connected to two brothers named Nino and Sal, who, Sclafani states, "we used to have trouble with all the time." He notes that "Jimmy" was poised to eliminate the trouble by "throwing 'em out," but that "Jimmy" refrained from  [*20]  doing so as a favor to Barney. Id.

The Investigations Officer asserts that the "Fat Tony," "Barney," "Sammy," "Fish," "Jimmy," "Nino," and "Sal" referenced in Exhibit C are all associates of the Genovese Family. "Barney" is alleged to be Barney Bellomo (Tr. at 89); "Sammy" is alleged to be Sammy Sentoro (Tr. at 91, 94); "Fish" is alleged to be Fish Cafaro (Tr. at 95); "Jimmy" is alleged to be James Messera (Tr. at 104); "Nino" is alleged to be Anthony Lanza, and "Sal" his brother Salvatore Lanza (Tr. at 103). * Understanding those identities, the Investigations Officer maintains, it is clear that Exhibit C reveals Sclafani to be discussing La Cosa Nostra's involvement in union affairs. In particular, the Investigations Officer claims, Exhibit C shows Sclafani to have discussed the possibility that Messera -- an individual holding no legitimate MTDC office -- might exercise control over union affairs by removing the Nino and Sal Lanza from positions within the union.
 
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* Agent Meyer identifies Liborio "Barney" Bellomo as a captain in and acting boss of the Genovese Family. Ex. S at P 10. He also identifies Anthony "Fat Tony" Salerno as a one time boss of the Genovese Family. Id. at P 12. Alphonse D'Arco identifies Barney Bellomo as a captain and acting boss of the Genovese Family. Ex. O at P B1.
 
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During the hearing, Respondent acknowledged his participation in the conversation recorded on Exhibit C. Tr. at 86-87. He disclaims, however, any knowledge that the "Barney," "Sammy," and "Fish" referenced in Exhibit C were the organized crime figures identified by the Investigations Officer. Tr. at 104-07. His statements about those people, he claims, were based on things he had read in the newspaper and been told by his mother; he says he had no personal knowledge of any of them. Tr. at 93-100.

I find Respondent's position on this subject to be quite incredible. The familiarity and ease with which Sclafani discusses the individuals referenced in Exhibit C, as well as the lowering of his voice when he mentions their names, belies any claim that he was unaware of their identity or significance. Moreover, the detail of Sclafani's knowledge about the individuals and the strength of his opinions about them (e.g., that "Fish" was a "rat cocksucker") renders unbelievable his claim that he knew of them only from newspaper articles and his mother. In addition, Sclafani's evasiveness on this topic -- at one point he testified that "Fat Tony" was a coffee man and that "Barney" may have  [*22]  been a reference to the popular purple dinosaur character -- bears on his credibility. Tr. at 87, 89.

Significantly, moreover, Sclafani did acknowledge that "Jimmy" was Messera; that "Nino" and "Sal" were the Lanzas; and that he told Macchio that Messera -- who had no official or legitimate position at the MTDC -- was set to remove the Lanzas from the union but chose not to do so as a favor to Barney. Tr. at 104-07. I find that Exhibit C provides strong evidence of Sclafani's awareness of Messera's immense and improper influence over the MTDC and the source of that power.

Conversations between Sclafani and Messera reinforce the inferences suggested by the above-discussed conversations about Messera. In Exhibit F, for example, which reflects a June 22, 1989 conversation, the two, with others, discuss several issues. In the first segment of the conversation, Sclafani and Messera discuss the latter's placement of one Baldo Mule into the Business Manager position of a local to watch over another Messera appointee. According to Sclafani, Mule is to act as Messera's "eyes" and "ears" at the local. Ex. F1 at 1-3. Messera declares that, if the person sharing office with Mule, identified  [*23]  as "LUPO's son," is "fuckin'" Messera, Messera will "take this motherfucker [LUPO's son] down in one second." Id. at 2. As in Exhibit C, there is no explanation of how Messera, as a mere member of Local 104, has the power to effect such personnel changes. Plainly, Messera is an organized crime figure with control over union personnel, and Sclafani knows it.

In the second segment of the conversation, Messera speaks of the conflict between himself and Sal Lanza, which, as detailed in Exhibit C, nearly led Messera to unseat Lanza from his union position. Messera describes an instance where Lanza refused to allow a spraying company owned by Messera to use non-union labor on a job site within the territory of Lanza's local. Id. at 11-12.

Sclafani argues that he was essentially a passive participant in Exhibit F, merely listening to and idly agreeing with Messera. Tr. at 47. Accepting arguendo the accuracy of this characterization, it does nothing to aid Sclafani's position. Exhibit F (like Exhibit E, about which he makes the same argument (Tr. at 51)) establishes that, during his associations with Messera, Sclafani was aware of Messera's union-related organized crime activities.  [*24]  This, in turn, together with other evidence discussed above, clearly shows that Sclafani knowingly associated with Messera in violation of the Consent Decree.

Finally, in Exhibit K, which reflects a conversation of November 14, 1989, Messera brags to Sclafani and others of intimidating contractors into employing his nephew and son. Ex. K1 at 4. He tells how he had his nephew moved from a relatively easy job to a relatively difficult one to punish him for refusing to send some of his earnings to his mother. Id. The nephew was incensed and walked off the undesirable job, with some unkind words to the job foreman. Id. The foreman, taken aback by the nephew's impudence, inquired as to who he was. Id. Told of his family connections, Messera recalls, the foreman remarked, "Oh, . . . no wonder he talked like that." Id.

Messera also recounts a similar incident involving his son: A contractor was instructed to put the boy to work and not give him any special treatment. Id. at 13. Apparently taking those words too much to heart, the job foreman assigned Messera's son to clean out a room littered with extremely foul waste. Id. The son refused, walked off the job, and  [*25]  complained to his father. Id. Messera intervened by expressing displeasure and threatening physical harm to the job foreman and shop steward, with the result that the son was relieved of the unpleasant task and paid at a premium rate for hours he did not work. Id. at 13-16. During these descriptions of Messera's extraordinary influence, Sclafani's comments indicate that he is listening appreciatively.

Prior to the hearing, Respondent's counsel denied that Sclafani was a participant in the conversation recorded on Exhibit K. Ex. T at 4. Having been invited to view the videotape of that conversation, however, see p. 11, infra, counsel does not reiterate that objection. In any event, my hearing of the tape, and the testimony of Agent Brouwer, see pp. 4-6, infra, lead me to conclude that the transcript showing him as a participant is accurate.

In the aggregate, all of this evidence amply establishes all of the elements of Charge 16; specifically, that James Messera was a member of the Genovese Family; that Sclafani was aware of Messera's organized crime affiliation; and that Sclafani nonetheless associated with Messera in union and non-union contexts. Accordingly,  [*26]  Charge 16 is ADOPTED.

C. Charges 26 and 27

Charges 26 and 27 allege that Respondent violated paragraph 3(c) of the Consent Decree in that he obstructed the efforts of the Investigations Officer by falsely denying during his deposition (1) that he had ever discussed with James Messera the removal of Salvatore and Anthony Lanza from their union positions (Charge 26) and (2) that he had knowledge of the 1989 beating of Edward DioVisalvo (Charge 27).

The Investigations Officer correctly maintains that he is obstructed in the performance of his duties when he is denied access to truthful information. The evidence above demonstrates that Sclafani did just that with his deposition statements relating to the subjects listed in Charges 26 and 27. With respect to the first, Exhibit C shows that, notwithstanding his deposition statement to the contrary, Sclafani did speak with Messera about the removal of the Lanzas from the union. Ex. C1 at 10. In fact, at the hearing, he confirmed as much. Tr. at 104-07. As to the second, and again contrary to his deposition statement, Exhibit D shows that Sclafani did have knowledge of DioVisalvo's beating and, indeed, engaged in a heated discussion  [*27]  about the same in which he advocated forceful retaliation. Ex. D1 at 22-32.

Respondent claims that he did not deliberately lie during his deposition and that his untrue statements were the result of faulty memory. The conversations at issue, he and his counsel point out, occurred over 5 years ago. Tr. at 109.

To a degree, Respondent's explanation has some logic; five years is a long time to remember a conversation. At least with respect to the Lanzas' removal from the union, I am unable to conclude that Sclafani remembered a 1989 conversation about that issue at the time of his deposition. I can, however, conclude as much about the assault of Edward DioVisalvo. That was an extraordinary event; a man was set upon with shaven axe handles and literally beaten bloody. See pp. 11-14, infra. Exhibit D shows that Sclafani saw the victim very soon after the beating and that he was very agitated about it. Ex. D1 at 22-32. I do not believe that Sclafani had no memory of the incident whatsoever, even if he could not remember the specifics of conversations about it. Accordingly, Charge 27 is ADOPTED.

D. Charge 1

Charge 1 asserts that Respondent violated paragraph 3(a) of the Consent  [*28]  Decree by committing an act of racketeering, as defined in 18 U.S.C. 1961, et seq. Specifically, the Investigations Officer charges that Sclafani demanded and received a payment of approximately $ 4,000 from a contractor while serving as Business Manager of Local 51.

Included within the definition of "racketeering activity" is any act in violation of 29 U.S.C. 186. That statute, in turn, makes it illegal for any officer or employee of a labor organization to "request, demand, receive, or accept" any "money or other thing of value" from "any employer" whose employees could be represented by or become members of the labor organization involved. Thus, if Sclafani demanded or received $ 4,000 from a contractor, as alleged by Charge 1, he would have committed an act of racketeering and thereby violated the Consent Decree.

The record contains no evidence that Sclafani actually received a $ 4,000 payment from a contractor. Indeed, on cross-examination, Agent Brouwer stated that she was unaware of any contractor that provided or allegedly provided any payment to Sclafani. Tr. at 43. That said, there is strong evidence that Sclafani demanded such a payment.

In Exhibit B, which  [*29]  reflects a May 10, 1989 conversation between Respondent and Messera, Sclafani recounts an incident in which, having discovered a contractor using non-union labor on a job site, he demanded $ 4,000 from the job foreman to allow the work to continue. Ex. B1 at 6. As Sclafani describes the event, the foreman raised questions initially, but ultimately agreed to pay the $ 4,000 at the end of the month. Id.

It is clear from the context of that conversation that the contractor involved employed persons eligible to be Mason Tenders and thus fell within the prohibition of 29 U.S.C. 186. Thus, from Sclafani's own words alone, it appears that he did commit an act of racketeering as alleged.

Sclafani concedes that his voice is on the tape marked as Exhibit B but maintained in a pre-hearing letter from his counsel that the conversation represented mere "puffing" on his part. Ex. T at 1. Nothing about Sclafani's words or inflections on Exhibit B, however, suggest that he is speaking anything but the truth. His contention that he was puffing appears to be an after-the-fact rationalization to minimize the damaging character of his remarks.

This conclusion was buttressed by Sclafani's testimony  [*30]  at the hearing. When Sclafani was asked to explain how his description of the incident involving the $ 4,000 payment could be construed as "puffing," he instead, for the first time, attempted to deny that the conversation concerned a payment in exchange for permitting the use of non-union labor. Rather, he said, it related to a payment by the contractor for union books for the workers on the site (Tr. at 130-31) -- an explanation lacking both coherence and credibility in light of Sclafani's own taped description of his conversation with the foreman. "How much you making on this job?", he recounts asking the foreman. "He [the foreman] says, 12,000. So you give me 4,000," Sclafani says. Ex. B1 at 6. This hardly sounds like an effort to obtain money for the purchase of union books, the price of which is not dependent upon how much a contractor "makes" on a particular job.

Prompted again to explain in what sense the conversation was "puffing," Respondent again failed to provide any meaningful answer, stating only, "It is my emotions. I can't explain." Id. at 132.

I conclude that Sclafani spoke truthfully on May 10, 1989 and that, as Local 51 Business Manager, he demanded an unlawful  [*31]  $ 4,000 payment from a contractor. Accordingly, Charge 1 is ADOPTED.
 
IV. Discipline

Having adopted several of the charges against Respondent, it remains to assess the appropriate sanction. In light of the seriousness of the conduct, I agree with Mr. Chertoff's request that the penalty be permanent expulsion from the union.

Courts faced with similar circumstances have approved permanent expulsion as the penalty for knowing association with organized crime. E.g., DiGirlamo, supra; Cimino I, supra. Here, the evidence not only demonstrates that Respondent has had close ties to James Messera, a significant figure in La Cosa Nostra, but it also shows that Sclafani himself is prone to engage in racketeering activities. Such individuals must be removed from the MTDC if it is to shed its tainted past and move forward as an honest, member-dedicated labor organization.

Respondent's able counsel argues that an appropriate sanction would be to bar him permanently from becoming an officer of the union, but allow him to retain his union membership. This compromise solution is unsatisfactory for two reasons. First, as demonstrated by his willingness to mislead the Investigations Officer  [*32]  and by his evasive testimony at the hearing, Respondent is neither remorseful about nor removed from his improper activities. Indeed, his unwillingness to acknowledge his ties to Messera and others in Messera's organization suggest that, even now, Respondent's primary loyalties are to a group other than the union.

Additionally, Respondent's proposed solution is unacceptable because it does not adequately protect the union. Sclafani suggests that as a mere union member, as opposed to an officer, he will not be in a position to exert corrupt influence or otherwise harm the union. One need look no further than the evidence in this hearing, however, to see that as a "mere" member of Local 104, James Messera had the power to remove MTDC officials, order personnel changes in other locals and secure preferential employment for his relatives.
 
V. Conclusion

Pursuant to paragraph 4(e) of the Consent Decree, Respondent is ordered expelled from the MTDC and Local 51 and is banned permanently from membership in, association with, or employment by the MTDC and any unions or trust funds affiliated therewith.

Pursuant to the Consent Decree, any appeal from this decision should be taken  [*33]  within 10 days.

Lawrence B. Pedowitz

Monitor
 
Dated: November 7, 1995

New York, New York
 
SO ORDERED:

Robert W. Sweet

United States District Judge

4-9-96

ATTACHMENT

CHARGE

SIR:

Pursuant to Paragraph 5(c) of the order entered in United States v. Mason Tenders District Council, et al., 94 Civ. 6487 (RWS) on December 27, 1994 (hereafter the "Consent Decree"), a copy of which is enclosed, you are hereby advised that the Investigations Officer appointed pursuant to the Consent Decree charges you with the violations listed in paragraphs 1 through 27 below. The time and place of the hearing regarding these charges will be set by the Monitor appointed pursuant to the Consent Decree, Lawrence B. Pedowitz, Esq., who will notify you accordingly. A decision upholding any of the charges listed below may result in disciplinary action, including possible expulsion from unions affiliated with the Mason Tenders District Council ("MTDC").

In accordance with Paragraph 7 of the Consent Decree, any objection to the charges listed below must be filed with the Monitor (with a copy to the Investigations Officer) within twenty days after the mailing of this notice.

CHARGE  [*34]  ONE

(Racketeering)

The Investigations Officer charges:

(1) On or about May 10, 1989, Anthony Sclafani violated Paragraph 3(a) of the Consent Decree by committing an act of racketeering, as defined in 18 U.S.C. 1961, et seq.; to wit, while a member of Laborers Union Local 51 ("Local 51") he demanded and received a cash payment of approximately $ 4,000 from a contractor.

CHARGES TWO THROUGH EIGHT

(Interference with the Proper Conduct of Union Business)

The Investigations Officer further charges:

On or about the dates set forth below, Anthony Sclafani violated Article III, Section 3(d) of the Constitution of Local 51 by failing to refrain from interfering with the proper conduct of the business of the MTDC and its constituent local unions; to wit, while a member and officer of Local 51, he knowingly involved the members and associates of La Cosa Nostra listed below in the affairs of the MTDC and its constituent local unions in the following manner:
CHARGE DATE VIOLATION
(2) On or about Discussed with James
June 22, 1989 Messera the involvement in
union affairs of a company
controlled by Messera.
(3) On or about Discussed with, and
August 1, 1989 advocated the use of
violence to, associates of
James Messera and
associates of La Cosa
Nostra in connection with
the affairs of the MTDC and
it constituent local
unions.
(4) On or about Discussed with James
January 22, 1990 Messera the placement of
shop stewards on union
jobs.
(5) On or about Discussed with James
June 13, 1989 Messera placing members of
La Cosa Nostra in positions
of employment through
Laborers Union Local 46.
(6) June-August Discussed with James
1989 Messera, and took steps to
promote, the control of
Laborers Union Local 46 by
members and associates of
La Cosa Nostra.
(7) On or about Discussed with James
June 22, 1989 Messera the placement of
Baldo Mule in the MTDC for
the purpose of obtaining
information for, and
increasing control by,
James Messera and other
members and associates of
La Cosa Nostra.
(8) On or about Discussed with an associate
November 30, 1989 of James Messera increasing
James Messera's control
over the MTDC by removing
Salvatore Lanza and Anthony
Lanza from their positions
with the MTDC and the MTDC
Trust Funds.
 [*35] 

CHARGES NINE THROUGH FIFTEEN

(Violation of Obligation of Loyalty)

The Investigations Officer further charges:

On or about the dates set forth below, Anthony Sclafani violated the obligation of undivided loyalty incumbent upon all members, officers, and fiduciaries of the MTDC and its constituent local unions; to wit, while a member and officer of Local 51, he acted for the benefit of La Cosa Nostra, and to the detriment of the MTDC and its constituent local unions, by engaging in the following conduct:
CHARGE DATE VIOLATION
(9) On or about Discussed with James Messera
June 22, 1989 the involvement in union
affairs of a company
controlled by Messera.
(10) On or about Discussed with, and advocated
August 1, 1989 the use of violence to,
associates of James Messera
and associates of La Cosa
Nostra in connection with the
affairs of the MTDC and its
constituent local unions.
(11) On or about Discussed with James Messera
January 22, 1990 the placement of shop stewards
on union jobs.
(12) On or about Discussed with James Messera
June 13, 1989 placing members of La Cosa
Nostra in positions of
employment through Laborers
Union Local 46.
(13) June-August Discussed with James Messera
1989 and took steps to promote, the
control of General Building
Laborers Union Local 46 by
members and associates of La
Cosa Nostra.
(14) On or about Discussed with James Messera
June 22, 1989 the placement of Baldo Mule in
the MTDC for the purpose of
obtaining information for, and
increasing control by, James
Messera.
(15) On or about Discussed with an associate of
November 30, 1989 James Messera increasing James
Messera's control over the
MTDC by removing Salvatore
Lanza and Anthony Lanza from
their positions with the MTDC
and the MTDC Trust Funds.
 [*36] 

CHARGES SIXTEEN THROUGH TWENTY-TWO

(Associations With La Cosa Nostra)

The Investigations Officer further charges:

Anthony Sclafani violated Paragraph 3(b) of the Consent Decree by knowingly associating with members and associates of La Cosa Nostra; to wit, while a member and officer of Local 51, he knowingly associated with the members and associates of La Cosa Nostra listed below:
(16) James Messera
(17) Onofrio Macchio
(18) Albert Soussi
(19) Louis Casciano
(20) Edward DioVisalvo
(21) Charles Trentacosta
(22) a representative of Alphonse D'Arco, then a
captain in the Luchese organized crime family


CHARGES TWENTY-THREE THROUGH TWENTY-SEVEN

(Obstruction of Investigations Officer's Efforts)

The Investigations Officer further charges:

On or about the dates listed below, Anthony Sclafani violated Paragraph 3(c) of the Consent Decree by obstructing the efforts of the Investigations Officer by refusing to produce records requested by the Investigations Officer and by making false statements at a deposition before the Investigations Officer; to wit, while a member and officer of Local 51, he engaged in the following conduct:  [*37] 
CHARGE DATE VIOLATION
(23) March 1, 1995 Refused to produce documents
responsive to Items Two (2)
and Five (5) in the Request
for Records served upon him
by the Investigations
Officer.
(24) March 30, 1995 Denied that he ever received
a payment from a contractor.
(25) March 30, 1995 Denied ever discussing the
affairs of the MTDC and its
constituent local unions with
James Messera.
(26) March 30, 1995 Denied discussing with James
Messera the removal of
Salvatore Lanza and Anthony
Lanza from their positions
with the MTDC and the MTDC
Trust Funds.
(27) March 30, 1995 Denied any knowledge relating
to the physical assault on
Edward DioVisalvo in 1989.

 
Dated: May 22, 1995

New York, New York

Michael Chertoff

Investigations Officer


 
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