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1995 U.S. Dist. LEXIS 17049, * UNITED STATES OF AMERICA and ROBERT B. REICH, Secretary of the
United States Department of Labor, Plaintiffs, - against - MASON TENDERS
DISTRICT COUNCIL OF GREATER NEW YORK, et al., Defendants. 94 Civ. 6487 (RWS) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK 1995 U.S. Dist. LEXIS 17049 November 14, 1995, Decided November 15, 1995, FILED CORE TERMS: injunction, organized crime, racketeering, indirectly, labor organization, enjoined, associating, constituent, entity, knowingly, trust funds, injunctive relief, employee benefit, waterfront, affiliated, affiliate, commercial purpose, enjoin, involvement, corruption, summary judgment, interaction, social club, pension, racketeering activity, reasonable likelihood, consent decree, participating, associational, employing COUNSEL: [*1] HON. MARY JO WHITE, United States Attorney for the Southern District of New York, Attorney for United States of America, New York, NY, By: ALLAN N. TAFFET, ESQ., AIMEE B. WOLFSON, ESQ., Of Counsel. PILLARI & VELLA, Attorney for Defendant Michael LaBarbara, Mineola, NY, By: THOMAS V. PILLARI, ESQ., ROBERT M. VELLA, JR., ESQ., Of Counsel. GERALD M. LABUSH, ESQ., Attorney for Defendant Peter Vario, New York, NY, By: ROBERT VESPOLI, ESQ., Of Counsel. KREITZER & VOGELMAN, Attorney for Defendant James Messera, New York, Ny, By: MARC M. COUPEY, ESQ., Of Counsel. JUDGES: ROBERT W. SWEET, U.S.D.J. OPINIONBY: ROBERT W. SWEET OPINION: OPINION Sweet, D.J. Plaintiffs the United States of America and Robert B. Reich, Secretary, United States Department of Labor (collectively referred to herein as the "Government") have moved for permanent injunctive relief pursuant to Rule 56, Fed. R. Civ. P., and the equitable civil remedies provision of the Racketeer Influenced and Corrupt Organizations statute ("RICO"), 18 U.S.C. § 1964, against defendants Louis Casciano ("Casciano"), Michael LaBarbara, Jr. ("LaBarbara"), Carmine Mandragona ("Mandragona"), James Messera ("Messera"), Albert Soussi [*2] ("Soussi"), and Peter Vario ("Vario") (collectively referred to here as the "Six Individual Defendants"). The Government seeks to limit the involvement of the Six Individual Defendants in three spheres of activity: organized crime, union affairs, and the construction and asbestos removal industries. For the reasons set forth below, the motion is granted in part and denied in part. Prior Proceedings The Complaint in this action was filed on September 8, 1994, against, inter alia, the Six Individual Defendants. In that Complaint, the Government alleged that the Six Individual Defendants had violated, inter alia, the RICO statute, §§ 1962 (b), (c), and (d), because they each had committed at least two of the 110 racketeering acts alleged in the Complaint. LaBarbara and Vario filed answers to the Complaint. Casciano and Soussi submitted notices of appearance but no answer. Mandragona and Messera neither submitted notices of appearance nor answered. By Notice of Motion dated November 1, 1994, the Government moved for a preliminary injunction against, inter alia, the Six Individual Defendants and for partial summary judgment against them on the Government's RICO-based [*3] claims for relief based on certain racketeering acts alleged in the Complaint. None of the Six Individual Defendants requested an extension of time in which to respond, submitted papers opposing the Government's motion, or appeared for oral argument on the motion on December 21, 1994. Deeming the motion to be unopposed, this Court granted the Government's motion for partial summary judgment and its request for preliminary relief by the Court's Order of January 13, 1995 (the "January 13 Order"). The defendants were enjoined as follows: Messera and Vario, appearing pro se, subsequently sought by letter application to modify or to dissolve the preliminary injunction. On April 6, 1995, [*4] this Court denied that application, granting Messera and Vario leave to renew their objections in connection with the application now before the Court. On April 24, 1995, briefing was bifurcated of the Government's requests for permanent injunctive relief and disgorgement, and submissions were adjourned concerning the propriety of disgorgement. By Notice of Motion dated May 19, 1995, the Government made the present motion. Papers in opposition were received from LaBarbara, Messera, and Vario, but not from Casciano, Mandragona, or Soussi. Neither Messera nor Vario, by then represented, renewed the objections raised in their earlier pro se letter motions, with one exception. Papers were deemed fully submitted and argument was heard on August 2, 1995. Facts The Mason Tenders District Council ("MTDC" or "District Council") is an association of entities that coordinate their efforts to represent manual laborers throughout the New York construction industry. The District Council consists of twelve local labor unions (the "Locals") affiliated with the Laborers' International Union of North America ("LIUNA"): Locals 13, 23, 30, 33, 37, 46, 47, 48, 51, 59, 66, and 104. [*5] The members of the Locals perform a wide variety of laborers' jobs, including general labor, bricklaying, masonry and asbestos removal in all five boroughs of New York City and on Long Island. Each Local has jurisdiction over construction projects in a particular geographical area within the New York City region. Each sends a number of Delegates to the MTDC, and the Delegates elect District Council officers and members of the District Council Executive Board (the "Executive Board"). The District Council engages in collective bargaining with employers on behalf of the members of the Locals. The District Council also manages pension and health insurance funds for the members. In essence, the District Council is the central governing body of the twelve constituent Locals and has supervisory powers on all matters relating to the Locals. By virtue of their role in the collective bargaining process, the highest-level officials of the District Council and, to a lesser extent, all of the District Council members wield power with respect to employers of Mason Tenders union members. The District Council holds and administers jointly with the contributing employers seven multi-million dollar [*6] Trust Funds. The Trust Funds provide benefits to several thousand members of the Locals and the members' families (except for Local 66, which has separate employee benefit plans for its members), including pension, health, legal services, annuity, and other benefits. All of the District Council Trust Funds are funded by mandatory contributions from employers. The Trust Funds are governed by a Board of Trustees consisting of two union representatives (the "Union Trustees") and two representatives from the group of employers that employ Mason Tenders labor (the "Employer Trustees"). "Field Representatives" are charged with ensuring that employers make required payments to the Trust Funds for each union member that employer employs. The District Council pension Fund (the "Pension Fund") and Welfare Fund are two of the largest Trust Funds. The Genovese, Luchese, and Gambino Organized Crime Families are organized criminal groups that operate throughout the New York City area and elsewhere. See United States v. Salerno, 85 Cr. 139 (S.D.N.Y.), aff'd in relevant part, 868 F.2d 524 (2d Cir.), cert. denied 493 U.S. 811 (1989); United States v. Salerno, 86 Cr. 245 (S.D.N.Y. 1986). [*7] These crime families comprise a criminal organization known as "La Cosa Nostra". The Government alleges that La Cosa Nostra is so intimately linked with the activity of the District Council and its affiliates, and that it wields such control, that the District Council leadership ultimately represents the interests of organized crime -- particularly of the Genovese Family -- rather than those of its members. The Government's Complaint alleges in extensive detail the domination of the Genovese Family in District Council activities, including allegations that the Genovese Family, largely through Messera, dictated the composition of the current District Council leadership, and that La Cosa Nostra generally controlled and detrimentally affected the District Council and its related activities through acts of extortion, lack of oversight, breach of fiduciary obligations, no-show jobs, kickbacks from service providers, corruption by the Trust Funds Administrator, and corruption by Employer Trustees. The Government alleges further that the District Council engaged in dishonest labor representation and corruption in its collective bargaining responsibilities. In its Complaint, the Government [*8] sets forth in substantial detail 110 alleged acts of racketeering committed by the Six Individual Defendants and others (the "Acts"). In its January 13 order granting partial summary judgment, this Court held that there was no issue of material fact as to 44 of the Acts, given that each of those 44 Acts had been conceded by one or more of the Six Individual Defendants, were based in convictions or statements at allocution, or were otherwise not subject to dispute. The January 13 Order held that the Six Individual Defendants had violated the RICO statute because among those 44 Acts, each of the Six Individual Defendants had committed at least two. Each of the Six Individual Defendants was at some point an official of the District Council, the Trust Funds, or the Locals. Between 1989 and 1992, as described more fully below, each pleaded guilty to various criminal acts. These acts largely involved the extortion of and taking of payoffs from employers in exchange for the Six Individual Defendants' condoning the employers' use of non-union labor or the employers' failure to make payments to the Trust Funds. Other acts surrounded the purchase of real estate at inflated prices. These Acts [*9] are set forth in detail below. By the end of 1995, each of the Six Individual Defendants will be out of jail and, to varying degrees, subject to some form of supervised release. The Government alleges that the Six Individual Defendants have maintained close ties to both organized labor and organized crime and continue to wield influence over the District Council, the Trust Funds, and the Locals. The Government points to the 44 Acts and asserts that such activities, occurring as part of a general scheme of influence on and corruption of the District Council, its affiliates, and the attendant industries, will continue if the requested permanent relief (the "Proposed Injunctions") is not granted. The remainder of this statement of facts sets forth the acts of the Six Individual Defendants that underlay the January 13 Order, as well as the allegations of the Government and of LaBarbara, Messera, and Vario, the only ones of the Six Individual Defendants to present papers opposing this motion. Casciano Because Casciano has neither answered the Complaint nor submitted papers in opposition to this motion, the facts set forth here reflect only the January 13 Order and the [*10] Government's allegations. Until 1990, Casciano served as a Field Representative of the District Council, as Assistant to the President of the District Council, as a Field Representative of the MTDC Trust Funds, and as a member of Local 51. The Government alleges that Casciano is an associate of the Genovese Organized Crime Family in the "crew" of Messera, who placed Casciano on the District Council and who used Casciano to control the District Council Enterprise. In November 1990, Casciano pleaded guilty to RICO conspiracy charges involving loansharking and receiving labor payments. United States v. Messera, 90 Cr. 483 (CSH) (S.D.N.Y. 1990). Specifically, Casciano participated in a scheme whereby in exchange for illegal payoffs, he, Soussi, and another defendant not involved in this motion illicitly obtained asbestos removal work for a company allegedly affiliated with the Buffalo Organized Crime Family and ensured that the work could be performed without union labor (the "Hazardous Waste Management Scheme"). These activities underlying that plea comprised the substance of Act 36, held in the January 13 Order not to present genuine issue of material fact. The January 13 Order [*11] also held that there was no genuine issue of material fact as to Acts 37 through 39. Those Acts involved Casciano's conversion of Trust Fund assets in violation of 18 U.S.C. § 664, by virtue of his no-show job as a Field Representative with the Trust Funds. At his allocution, Casciano admitted to spending many of the days on which he was being paid for this job at Messera's social club. Casciano is no longer in prison. LaBarbara LaBarbara was Business Manager of Local 66. In granting partial summary judgment against LaBarbara with regard to his civil RICO liability, the January 13 Order determined that there was no issue of material fact with regard to Acts 29 through 34 of the Complaint, based on LaBarbara's criminal conviction for those acts. In September 1989, LaBarbara pleaded guilty to six counts of receiving illegal labor payments while serving as Local 66 Business Manager, in violation of 29 U.S.C. § 186(b)(1) and (d)(2). United States v. Peter Vario, et al., 88 Cr. 719 (JM) (E.D.N.Y.), aff'd, 943 F.2d 236 (2d Cir. 1991), cert. denied, 112 S. Ct. 882 (1992). The Government alleges that LaBarbara is a "made" member or "soldier" in the Luchese Family [*12] and that he enforced that Family's interests throughout the District Council and its affiliates along with Vario and others. The Government alleges further that LaBarbara installed his son, Michael R. LaBarbara, Jr., as an officer of Local 66, so that the Luchese Family could continue to exert influence over the Local. The Government alleges that this influence continues today, since defendant LaBarbara is still a "made" member of the Luchese Family and his son is still a Business Agent of Local 66. LaBarbara has completed his prison sentence in connection with his conviction. At the time this motion was made, he was under indictment in the Eastern District of New York for bank fraud and theft of union employee benefit funds based on a fraudulent real estate scheme involving the Local 66 trust funds. LaBarbara notes that prior to becoming a union official, he was a working member of Local 66 employed as a concrete laborer. He asserts that besides the skills necessary to operate the union, his only other skills are related to the construction industry. LaBarbara alleges that as a result, he is incapable of earning a living without engaging in one or the other of these endeavors. LaBarbara [*13] has been released from prison. Mandragona Because Mandragona neither answered the Complaint nor filed papers in opposition to this motion, the facts set forth here reflect only the findings underlying the January 13 Order and the Government's allegations. Mandragona served as President of Local 13 and as its Delegate to the District Council. In December 1992, Mandragona pleaded guilty to RICO conspiracy involving the receipt of illegal labor payments while serving in this capacity, in violation of 29 U.S.C. § 186(b)(1) and (d)(2). United States v. Mandragona, 92 Cr. 748 (CSH) (S.D.N.Y. 1992). At his allocution, Mandragona admitted that as Business Manager of Local 13, he had accepted money from an employer in exchange for allowing that employer to use non-union labor on job sites. These acts constituted Acts 10 and 11 in the Complaint, which this Court cited as presenting no genuine issue of material fact in granting partial summary judgment with regard to Mandragona's civil RICO liability. The Government alleges that Mandragona is an associate of the Genovese Organized Crime Family and particularly of Messera. Mandragona visited Messera's social club at least [*14] once. At the time this motion was made, Mandragona was scheduled to be released from prison on August 31, 1995. Messera Messera served as a member and Field Representative of Local 104 and as a Delegate from that Local to the District Council. In 1990, he pleaded guilty to RICO charges involving loansharking offenses. United States v. Messera, 90 Cr. 483 (CSH) (S.D.N.Y. 1990). In 1993, he pleaded guilty to RICO charges involving the embezzlement and conversion of MTDC Pension Fund assets in connection with the Pension Fund's purchase of eight properties located in Brooklyn. United States v. Messera, S1 92 Cr. 749 (JES) (S.D.N.Y. 1992). In granting partial summary judgment on the Government's claims as to Messera's civil RICO liability, the January 13 Order held that there was no genuine issue of material fact as to Acts 1, 2, 4, and 109. Acts 1 and 2 concerned Messera's criminal conversion, in violation of 18 U.S.C. § 664, and mail fraud, in violation of 18 U.S.C. § 1341, based on his 1993 conviction. Specifically, as established in Messera's allocution, Messera caused the Pension Fund to purchase eight buildings in Brooklyn (the "Brooklyn Properties") at [*15] inflated prices in two separate transactions. Act 2 involved Messera's acts of money laundering to conceal the unlawful proceeds of the Brooklyn Properties, in violation of 18 U.S.C. § 1956(a)(1)(B). Act 4 concerned Messera's acts of conversion and fraud in using money from the Pension Fund to purchase a building in Manhattan (the "18th Street Property") for an inflated price and for participating in an elaborate real estate "flip" scheme. Act 109 involved Messera's mail fraud and conversion related to the Welfare Fund's purchase of property in Miami Beach, Florida, for an inflated price. The Government alleges that since 1987, Messera has been a caporegime in the Genovese Family and that in that capacity he has been responsible for exerting illicit influence over the MTDC and its affiliates. At his allocution, Messera admitted to his involvement with the Genovese Family. The Government alleges that Messera exerted influence by placing Genovese Family associates in union positions, having them report to him, and using these agents to engage in kickback and extortion schemes. Many of these activities, alleges the Government, were coordinated from Messera's social club, which was [*16] frequented by Casciano and Mandragona as well. Messera is scheduled for release from prison in Florida on December 12, 1995. According to his sentence, he will be supervised upon release for three years. Messera alleges that he intends to settle in Florida following his release and to work at a beauty salon with his wife. He alleges that as part of his plea agreement, he understood that this prison sentence and the subsequent supervision would be the final restrictions placed upon him. Messera notes further that his guilty plea involved only his acts as a member of the Genovese Family and the RICO conspiracy involving laundering money embezzled and converted from various MTDC trust funds, but no more. He asserts that all of the wrongdoing was alleged to have taken place in and around New York City and that no allegations were made at that time regarding any improper dealings with any other labor unions. Soussi Because Soussi neither answered the Complaint nor filed papers in opposition to this motion, the facts set forth here reflect only the findings of the January 13 Order and the Government's allegations. Soussi, who is Messera's brother-in-law, was a Field Representative [*17] of the Trust Funds and a member of Local 104. In 1990, he was convicted of RICO conspiracy involving loansharking and aiding and abetting the receipt of illegal labor payments, related to his involvement in the Hazardous Waste Management Scheme with Casciano. United States v. Messera, S1 92 Cr. 749 (JES) (S.D.N.Y. 1992). At his allocution, he admitted to accepting money from a Buffalo LIUNA official, construction company owner, and alleged member of the Buffalo Organized Crime Family, Ron Fino, in exchange for a promise that non-union labor could be employed at a job-site. These acts constituted Act 36, one of the Acts which led to this Court's January 13 Order deeming Soussi liable for Civil RICO violations. The January 13 Order found further that Soussi had committed Acts 40 through 43. These involved Soussi's conversion of Trust Fund assets in violation of 18 U.S.C. § 664, by virtue of his no-show job as a Field Representative with the Trust Funds. The Government alleges that Soussi is an associate of the Genovese Family and a close associate of Messera. The Government presented evidence that Soussi was present at Messera's social club on at least 79 occasions in the year [*18] prior to his criminal conviction, during which visits he and Messera coordinated the latter's control of the MTDC and its affiliates. Soussi has been released from prison. Vario From 1978 to 1989, Vario, who is now 57 years old, held various positions at MTDC Local 66: organizer, vice-president, Fund Administrator, and Delegate to the District Council. In March 1990, Vario was convicted of RICO conspiracy involving the receipt of illegal labor payments and extortion while he was vice-president of Local 66, in violation of 29 U.S.C. § 186(b)(1) and (d)(2) United States v. Peter Vario, 88 Cr. 719 (JM), aff'd, 943 F.2d 236 (2d Cir. 1991), cert. denied, 112 S. Ct. 882 (1992). Those acts constituted Acts 16 through 28 in the Government's Complaint and formed the basis for the January 13 Order rendering summary judgment on Vario's civil RICO liability. The Government alleges that Vario is a "made" member or "soldier" in the Luchese Family who, together with LaBarbara and others, enforced the interests of that Family throughout the MTDC enterprise. The Government alleges that Vario kicked back money from the Local to members of that Family. Vario was released [*19] in May of this year and is currently serving a three-year term of supervised release. He asserts that he has violated no conditions of his supervised release and that the Government has no basis for its allegations that he is continuing or will continue his involvement with organized crime. Under the terms of his release, Vario may not associate with convicted felons or criminals or engage in illegal activities. His employment is subject to scrutiny and approval, his home is subject to warrantless searches, and he must report regularly to his probation officer. Discussion A. Legal Standards The "RICO statute was intended to provide new weapons of unprecedented scope for an assault upon organized crime and its economic roots." Russello v. United States, 464 U.S. 16, 26, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983). In doing so, it provides the courts with uniquely broad powers to prescribe equitable remedies for civil RICO violations, as follows:
18 U.S.C. § 1964(a). The legislative history of RICO indicates explicitly that the enumerated remedies in the RICO civil remedies provision are not exhaustive. See H.R. Rep. No. 1549, 91st Cong., 2d Sess. at 57 (1970); id. at 2, 58; S. Rep. No. 617, 91st Cong., 1st Sess. at 81, 160 (1970). Congress explicitly instructed the courts to construe the RICO statute liberally "to effectuate its remedial purposes." Pub. L. 91-452, § 904(a), 84 Stat. 947. Congress noted that:
S. Rep. No. 617, 91st Cong., 1st Sess. at 79 (1969). In interpreting this legislative history, the Supreme Court, too, has directed the courts to apply RICO broadly and to construe it liberally. As the Court noted in Sedima, S.P.R.L. v. Imrex, Co., 473 U.S. 479, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985), Id. at 497-98 (citations omitted); see also United States v. Turkette, 452 U.S. 576, 592, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). Similarly, our Court of Appeals has held that the civil remedies provision "grants courts broad discretion and latitude in enjoining [RICO] violators from activities that might lead to future violations." United States v. Private Sanitation Indus. Ass'n, 995 F.2d 375, 377 (2d Cir. 1993) ("Avellino III"). Our Court of Appeals has recently upheld two injunctions [*22] issued by district courts under § 1964 in factual contexts quite similar to that at hand. In so doing, the district and circuit court opinions balanced the broad preventive goals of RICO with the general equitable principle that such relief must be narrowly tailored so as not to infringe the constitutional rights of the parties enjoined. In the first of these cases, United States v. Private Sanitation Indus. Assoc. ("Avellino II"), 811 F. Supp. 808 (E.D.N.Y. 1992) (Glasser, J.), the Government brought a civil RICO action against twelve defendants convicted of using force and of threatening to use force against individuals engaged in the collection of solid waste. Avellino was not only a "principal and/or hidden owner in two corporate codefendants in [the] action," id. at 810, but also "a reputed caporegime in the Luchese crime Family." Id. As here, the Government moved for partial summary judgment, contending that in light of Avellino's guilty pleas to criminal charges based on the same actions, there was no genuine issue of material fact. Judge Glasser granted the Government's motion on that basis. In ordering a remedy under § 1964, the court, using language [*23] set forth in greater detail below, enjoined the defendants from participating in the carting industry, in any trade waste association, or in the affairs of the local union in whose affairs he had interfered. In addition, Avellino was enjoined from associating for any commercial purpose with other defendants in the action or with known members or associates of organized crime. Id. at 818. In issuing what he deemed to be "reasonable injunctions" as meant by § 1964, id. (citing United States v. Bonanno Organized Crime Family ("Bonanno"), 683 F. Supp. 1411, 1441 (E.D.N.Y. 1988), aff'd, 879 F.2d 20 (2d Cir. 1989)), Judge Glasser noted that they would "further the significant governmental interest in eliminating the insidious impact upon a captive community of corruption and racketeering in the Long Island carting industry." Id. (citing United States v. International Bhd. of Teamsters ("Senese and Talerico"), 941 F.2d 1292, 1297 (2d Cir. 1991)). The defendants appealed, arguing that the injunctive relief was not warranted by the record, exceeded the scope of RICO's civil remedies, and infringed their associational rights. Avellino III, 995 F.2d at 377. The [*24] Court of Appeals disagreed and upheld the injunctions, holding that the evidence warranted the relief given, that the injunctions did not exceed the scope of the broad authority granted to the district court by § 1964, and that "the prohibition on associating with known criminals or other defendants for commercial purposes does not violate Avellino's First Amendment associational rights." Id. (citing Senese and Talerico, 941 F.2d at 1297). Three months after the appellate decision was handed down in Avellino III, the Honorable Leonard B. Sand confronted a substantially similar set of facts and question of law in United States v. Local 1804-1 ("Carson V"), 831 F. Supp. 177 (S.D.N.Y. 1993), the remedy phase of a protracted litigation. In United States v. Local 1804-1 ("Carson II"), 812 F. Supp. 1303 (S.D.N.Y. 1993) (Sand, J.) (modified, 831 F. Supp. 167 (S.D.N.Y. 1993) (Sand, J.)), Carson, one of four remaining defendants and the Secretary-Treasurer of Local 1588 of the International Longshoremen's Association (the "ILA"), had been held liable for civil RICO violations stemming from his involvement in the "pervasive influence of organized crime over [*25] the Port of the New York and New Jersey (the 'Waterfront')." Carson II, 812 F. Supp. at 1308. The civil RICO action had followed in the wake of a criminal prosecution, as in Avellino and in this action, though the Third Circuit had overturned Carson's criminal conviction. Carson, the court held, had accepted kickbacks from a waterfront employer in exchange for "labor peace", United States v. Carson ("Carson VI"), 52 F.3d 1173, 1176 (2d Cir. 1995), and had shared those kickbacks with members of the Genovese Family. In addition, he had engaged in other acts of extortion and illegal influence. Indeed, a review of the facts in Carson is startlingly similar to those presented in this action, perhaps not surprisingly given the nature of the Government's allegation concerning organized crime. In the remedy phase of the Carson litigation, the Government sought permanent injunctions against Carson, the other defendants, and any people acting in concert with them "from committing any racketeering acts, and from having any dealings, directly, or indirectly with: (1) any person or entity on the waterfront; (2) any labor organization; (3) any other defendant in this action; [*26] (4) any member or associate of organized crime." Carson V, 831 F. Supp. at 191. Judge Sand found the requested relief "somewhat vague". Id. In language set forth in more detail below, he enjoined the defendants from committing any racketeering activity; from dealing with organized crime affiliates or other defendants for commercial purposes concerning Waterfront affairs; from having any dealings with any labor organization, any affiliate of the ILA locals involved in the action, or any affiliate of a labor organization concerning Waterfront affairs; and from visiting ILA sites. n1 Id. at 191-92. In issuing these injunctions, Judge Sand stated that the relief was "narrowly tailored to avoid any interference with the defendants' constitutional rights," id. at 192, and that it would "ensure that the defendants will commit no further racketeering acts on the Waterfront." Id. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 A discrepancy exists between language used in the Carson V district court opinion, 831 F. Supp. at 191-92, and the judgment entered. The decision contained language enjoining the defendants from dealings with "any person or entity that does business on the Waterfront." Carson, 831 F. Supp. at 191-92. For reasons left unclear by the record, the judgment entered in accordance with that decision omitted that language, though otherwise it was consistent with the decision's language. See Judgment Concerning Defendants Anthony Anastasio, James Coonan, Michael Coppola, Tino Fiumara, Kevin Kelly, James McElroy, John Gotti, Donald Carson, Venero Mangano, Anthony Gallagher, and George Lachnicht, dated September 8, 1993, entered on the docket on September 13, 1993. Subsequently, the judgment against Carson was amended by the Court, and language was added. See Carson, 52 F.3d at 1184 n.10; see also Endorsement of Judge Sand, dated October 8, 1993, on Notice of Rule 59(3) Motion of Donald Carson, dated September 23, 1993. The language here reflects that which remained after the judgment and the amendment. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*27] Subsequently, upon a motion by Carson to amend the judgment, the relief was tempered somewhat by language permitting Carson to draw on his union pension and allowing his employer to pay union dues on his behalf so that he would not be prevented from working in a closed shop (though he would still be unable to join the union). Carson VI, 52 F.3d at 1184 n.10, 1185 (describing the modified judgment issued by the district court on November 5, 1993). Carson appealed, contending, inter alia, that the injunctive relief was overbroad. Carson VI, 52 F.3d at 1176. The Court of Appeals upheld the district court on the issue of the injunctions, holding that they were not overbroad. In doing so, the Court of Appeals stated:
Carson, 52 F.3d at 1184. Noting specifically that "the injunction terminates Carson's future participation in the affairs of any labor organization," id. at 1185 (emphasis added), and that, "this quarantine is absolute and permanent," id., the Court of Appeals held that the district court had not interfered with Carson's First Amendment freedoms. Id. In sum, section 1964, read in the light of Avellino and Carson, dictates the following guidelines in crafting injunctive relief that meets the statute's dictates while remaining within constitutional bounds. First and most broadly, looking to the statute itself, the order must be "appropriate". § 1964(a). Among the forms of relief [*29] contemplated as appropriate are divestiture of interests in any enterprise and restrictions on future activities. § 1964. If restrictions on future activities are set in place, they must be "reasonable". "Reasonable" restrictions may include, but are not limited to, prohibitions against engaging in the same endeavor as the enterprise underlying the civil RICO liability. Looking beyond the statute to the case law, Carson instructs that injunctive relief is warranted if there is a "reasonable likelihood that the wrong will be repeated." Carson, 52 F.3d at 1184. In determining if such a likelihood exists, past misconduct may suggest future violations, especially where the past misconduct has been founded on systematic wrongdoing. In employing these dictates, Avellino and Carson give examples of constitutional contours in similar situations. Of course, injunctive relief must be tailored to the facts of the case. Avellino and Carson, however, given their substantial factual similarity, provide important benchmarks as to relief that has been upheld as constitutional. B. The Injunctive Relief The Government's First Proposed Injunction asks this Court to enjoin the Six Individual Defendants from:
Such an injunction is appropriate within the meaning of § 1964, in that it constitutes a "reasonable restriction on future activities". § 1964(a). As in Carson, there is a "reasonable likelihood that the wrong will be repeated" without such an injunction. The likelihood of repetition can be inferred from the Six Individual Defendants' acts of past misconduct founded on the systematic wrongdoing that underlay the January 13 Order. Though somewhat tautological, no injunction could be more exactly tailored to prevent the recurrence of such racketeering acts than an injunction against racketeering. Such an injunction is neither vague or overbroad. The RICO statute sets forth in detail the type of activity that constitutes its violation, and ample case law exists interpreting that statute. In any case, the same language was used by Judge Sand and upheld in Carson. It will thus be ordered that the Six Individual Defendants are enjoined: The Government further seeks to enjoin the Six Individual Defendants from:
and from: To the extent that such an injunction is restricted to association for commercial purposes, this requested relief is appropriate within the meaning of § 1964. As a reasonable restriction on future activities, such an injunction is authorized by the statute. The restriction is reasonable given the likelihood that the past pattern of racketeering activities will be repeated if such interaction is permitted. There is no need to determine now if Casciano, LaBarbara, Mandragone, Soussi, or Vario is a member of an organized crime family, as the Government has alleged. Membership in organized crime activities per se did not constitute [*32] the acts leading to the January 13 Order with regard to those five defendants. (Messera admitted to such membership at his allocution.) The Government has adduced voluminous and convincing evidence demonstrating beyond cavil the pervasive and well-entrenched influence of organized crime in the activities of the MTDC, its affiliates, and the construction and asbestos industries. Many of these people, by their own testimony, were affiliated with and aided the Six Individual Defendants. Thus, whether or not the Six Individual Defendants themselves are members of organized crime families, their past acts were largely facilitated by such people. This fact alone counsels issuing the Government's Second and Fourth injunctions. As the Court of Appeals has noted:
United States v. Indelicato, 865 F.2d 1370, 1384 (2d Cir.) (en banc), cert. denied, 493 U.S. 811, 107 L. Ed. 2d 24, 110 S. Ct. 56 (1989). The proposed restrictions, as long as they are limited to commercial interactions, do not unconstitutionally infringe the First Amendment associational rights of the Six Individual Defendants. As the Court of Appeals noted in Carson, "'An individual's right to freedom of association may be curtailed to further' the public's 'compelling interest in eliminating the public evils of crime, corruption, and racketeering in union activity.'" Carson VI, 52 F.3d at 1185 (citing Senese and Talerico, 941 F.2d at 1297) (citations and internal quotations omitted). Indeed, nearly identical language to that in the Government's Second and Fourth Proposed Injunctions was upheld in Avellino III, which enjoined the defendants from "associating with known members and associates of organized crime for any commercial purpose," and "from associating [*34] with the other defendants in this action for any commercial purpose." Avellino II, 811 F. Supp. at 818. Messera contends that the Second and Fourth Proposed Injunctions, even when limited to interaction for commercial purposes, are too vague. Neither this Court nor the Avellino courts agree. The Second Circuit has provided ample guidance as to the meaning of "knowingly associating". See United States v. Local 1804-1 ("Ciccone"), 44 F.3d 1091, 1096 (2d Cir. 1995) (evaluating court-administered consent decree in Teamsters litigation, holding that the "meaning of 'knowingly associating' in the Teamsters decree . . . is now well established."); United States v. Int'l Bhd. of Teamsters ("DiGirlamo"), 19 F.3d 816, 822 (2d Cir. 1994) (under Teamsters consent decree, association is "knowing" if contact is purposeful and not incidental or fleeting); United States v. International Bhd. of Teamsters, ("Adelstein"), 998 F.2d 120, 125 (2d Cir. 1993) (Teamsters consent decree indistinguishable from parole probation limitations on association); Senese and Talerico, 941 F.2d at 1292 (knowing association should be inferred from the duration and quality of the [*35] associations, not the quantity.) For these reasons, the Second and Fourth Proposed Injunctions will be issued as modified by the addition of the commercial purposes language below. The Government seeks further to enjoin all Six Individual Defendants from:
The requested relief, as long as it is restricted to social clubs where commercial matters are discussed, is appropriate. The Government has presented convincing evidence in the form of testimony and recorded conversations that the acts underlying the January 13 Order were facilitated by visits to the same social club, which was a forum for planning racketeering activities. Thus, although such language was absent from Avellino and Carson, the injunction falls within the same category of restraint as that in the Second and Fourth Proposed Injunctions and is a reasonable restriction of the Six Individual Defendants' future actions for the same reasons. Such a restriction, particularly given the existence of the other injunctions, is necessary to prevent a reasonable likelihood of their repeating past acts, and, as [*36] long as it is limited to visits to clubs where commercial interests or union affairs are discussed, is appropriate in the light of this record. The Government would have all three injunctions restrict association for any purpose whatsoever, including, presumably, purely social interaction. As noted, "it is well established that an individual's right to freedom of association may be curtailed to further significant governmental interests." Senese and Talerico, 941 F.2d at 1297 (citing United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 37 L. Ed. 2d 796, 93 S. Ct. 2880 (1973). But such interests would not clearly be furthered here by enjoining purely social interactions. Moreover, enjoining the Six Individual Defendants from entirely non-commercial, non-union social association exceeds the relief upheld in Avellino III. In arguing for the extension of the injunction to all, even non-commercial association, the Government notes that its proposed language is identical to a provision the consent decree entered in United States v. International Bhd. of Teamsters, 88 Civ. 4486 (DNL); see also DiGirlamo, 19 F.3d at 818-19. However, [*37] the Supreme Court has noted that relief granted by a federal court in entering a consent decree may exceed the scope of the relief that it might have awarded without consent of the parties, for "in addition to the law which forms the basis of the claim, the parties' consent animates the legal force of a consent decree," and "a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial." Local Number 93 v. City of Cleveland, 478 U.S. 501, 525, 92 L. Ed. 2d 405, 106 S. Ct. 3063 (1985) (citations omitted). The enforcement of the Teamsters consent decree, therefore, fails to demonstrate conclusively that restricting all, even non-commercial, association is constitutional absent the consent of the parties to be enjoined. Messera has objected that the injunctions could severely curtail his associations with Soussi, his brother-in-law. If this objection was valid in the context of injunctions that curtailed even social associations, it is not in light of the narrowing of the Government's proposed injunction to commercial interactions. Any commercial association between Messera [*38] and Soussi will, of course, be enjoined under the injunction, since non-social dealings are not central to the relationship of brothers-in-law. In sum, the Six Individual Defendants will be enjoined from: The Government seeks further to enjoin the Six Individual Defendants from association with labor unions, employee benefit funds, and the construction and asbestos industries. Although the Government's requested language is too broad in several regards, much of the injunctive relief it seeks is both appropriate as contemplated by § 1964, comfortably within constitutional bounds, and consistent with the scope of the injunctions in Avellino [*39] and Carson. RICO, as noted above, explicitly authorizes "prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in . . . ." § 1964(a). Thus, before proceeding farther, it is important to define the enterprise in which the Six Individual Defendants were engaged and which underlay the January 13 Order. Of course, the statute makes clear that the scope of a permitted injunction is not limited to the past-offending enterprise. See id. But defining the contours of that enterprise will suggest the minimum injunctive relief that is reasonably likely to prevent a recurrence of the past acts of racketeering. As will be discussed below, neither Avellino nor Carson limited its injunctive relief to the offending enterprise alone. Both carved out something of a safety margin, as permitted by § 1964, beyond that enterprise in order to ensure that past acts would not be repeated. Because this Court's January 13 Order granting summary judgment as to the Six Individual Defendants' civil RICO liability was entered due to their default, that Order did not explicitly define the enterprise in which they were involved. That such an enterprise existed, [*40] however, was implicit in that grant of summary judgment. The gravamen of any RICO offense is the control or conduct of the affairs of an "enterprise" through a "pattern" of "racketeering activity." 18 U.S.C. § 1962; see also Sedima S.P.R.L. v. Imrex, 473 U.S. 479, 482-83, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). The January 13 Order granted summary judgment as to Claims One through Four in the Complaint: violation of § 1962(b), conspiracy under § 1964(d) to violate § 1962(b), § 1962(c) violation, and conspiracy under § 1964(d) to violate § 1962(c). In granting summary judgment, the January 13 Order listed the Acts which established the pattern of racketeering activity. Implicit in that Order was a finding that in committing those Acts, the Six Individual Defendants had engaged in the control or conduct of an enterprise. The RICO statute defines "enterprise" 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." § 1961(4). The Second Circuit has concluded that both the language of the RICO statute and its legislative history "suggest that Congress sought [*41] to define that term as broadly as possible . . . ." Indelicato, 865 F.2d at 1382; see also United States v. Porcelli, 865 F.2d 1352, 1362 (2d Cir.) (enterprise given "broad definition" -- including "any enterprise, not necessarily one engaged in a pattern of racketeering; indeed, it may be a victim of racketeering"), cert. denied, 493 U.S. 810, 107 L. Ed. 2d 22, 110 S. Ct. 53 (1989). Thus, an enterprise may be either a legitimate entity or an illegitimate or illicit association. See Turkette, 452 U.S. at 587. In this case, the Enterprise is the District Council, the associated Trust Funds, and LIUNA Locals 13, 23, 30, 33, 37, 46, 47, 48, 51, 59, 66, and 104. Indeed, the statutory definition of "enterprise" refers explicitly to unions, see, e.g., United States v. Stolfi, 889 F.2d 378, 380 (2d Cir. 1989) (union local and its benefit funds constitute enterprise); United States v. Scotto, 641 F.2d 47, 52 (2d Cir. 1980), cert. denied, 452 U.S. 961, 69 L. Ed. 2d 971, 101 S. Ct. 3109 (1981); Bonanno, 683 F. Supp. at 1425; see also Carson II, 812 F. Supp. at 1314. The Government adduced in support its motion for summary judgment a host of [*42] evidence confirming the interaction among the constituent parts of the Enterprise and the involvement of the Six Individual Defendants in the Enterprise. That evidence included their past criminal convictions, their sworn admissions and those of other participants in the Enterprise, documents, intercepted communications, and Fifth Amendment invocations. The Six Individual Defendants produced no evidence, except a general denial from LaBarbara and Vario, that would contradict any of this overwhelming evidence. This Court thus determined that there was no genuine issue of material fact as to civil RICO liability, based in the Six Individual Defendants' conduct in the Enterprise: the District Council, the Trust Funds, and the Locals. In view of the scope of the Enterprise, the Government's Proposed Injunctions against future involvement with labor unions, employee benefit funds, and the construction and asbestos industries would enjoin future dealings with any of the elements of the Enterprise. Such relief is, as modified below, appropriate under § 1964, which, as noted, explicitly authorizes "prohibiting any person from engaging in the same type of endeavor as the enterprise engaged [*43] in . . . ." § 1964(a). Given the extent of the involvement of the Six Individual Defendants in the Enterprise, the control they wielded, and the pervasiveness of the corruption, there can be little doubt that at a minimum, they must be enjoined from returning to dealings with the organizations and individuals associated with the Enterprise that underlay their civil RICO liability if future corruption is to be preempted. The involvement of the Six Individual Defendants and their associates not party to this motion constituted an entrenched pattern of activity unlikely to cease of its own accord, and their associational rights may be curtailed to further the public's interest in eliminating such corruption. Carson VI, 52 F.3d at 1185. Some of the relief requested by the Government would enjoin the Six Individual Defendants from activities beyond the precise contours of the Enterprise that underlay their liability. Messera and Vario object that to do so is to exceed the relief contemplated by § 1964 and, by being overbroad, to infringe their associational rights. They argue that the boundaries of the injunction should be coextensive with the Enterprise. Their argument is explicitly [*44] contradicted by both § 1964 and the case law. The statute states, as noted, that appropriate orders include, but are "not limited to . . . prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in . . . ." § 1964(a). Given the admonition of Congress and the courts to construe the statute broadly, to tailor the boundaries of injunctive relief exactly to those of the enterprise underlying a civil RICO violation would be to ignore the inextricable links that characterize such ventures and thus to work counter to RICO's intent. Section 1964's exhortation to craft relief broadly recognizes the importance of looking to the wider context in which the racketeering took place. The injunctions in Avellino and Carson reflect this approach, and their endorsement by the Court of Appeals recommends the same tack here. The enterprise in Avellino II was defined as consisting of the Private Sanitation Industry Association of Nassau/Suffolk, Inc. (the "PSIA"), "a trade association of individuals and entities engaged in the business of solid waste collection, transportation, . . . or disposal," United States v. Private Sanitation Indus. Assoc., [*45] 793 F. Supp. 1114, 1121 (E.D.N.Y. 1992) (Glasser, J.) (internal quotation marks omitted), and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Private Sanitation Local 813 ("Local 813"), "the union that represents workers employed by companies engaged in the solid waste industry on Long Island". Id. at 1121-22. The court explicitly stopped short of defining the enterprise as "all members and affiliates of the Long Island carting industry." Avellino II, 811 F. Supp. at 815; see also United States v. Private Sanitation Indus. Ass'n ("Avellino I"), 793 F. Supp. at 1127. Nonetheless, the defendants were enjoined "from participating directly or indirectly in the carting industry, any company engaged in the business of carting, any trade waste association and in the affairs of Local 813." Avellino II, 811 F. Supp. at 818 (emphasis added). The Avellino court, then, and the Court of Appeals on review, deemed it necessary to enjoin Avellino not only from the enterprise itself, but also from related endeavors that it had explicitly refrained from considering as part of that enterprise. Judge Sand took an equally precautionary [*46] approach in Carson. There, the enterprise was defined as the (New York/New Jersey) "Waterfront" and included the International Longshoremen's Association, the ILA locals, employers on Waterfront, and members of the Gambino and Genovese Families. The enterprise was not defined so broadly as to include all labor organizations connected with the Waterfront, all individuals affiliated with such labor organizations, or all Waterfront businesses. Nonetheless, Judge Sand enjoined the defendants, and the Court of Appeals upheld the language prohibiting them:
and "from visiting the site of any ILA entity or other labor organization or communicating with any person who is at the site of any ILA entity or other labor organization . . . ." Carson V, 831 F. Supp. at 191-92 (emphasis added). As in Avellino I, and in accordance with § 1964, the Carson court fashioned relief preventing activity greater than the scope of the offending enterprise finding such relief necessary to prevent a recurrence of racketeering, yet, as the Court of Appeals indicated, still tailored the injunction narrowly enough to avoid infringing the defendants' constitutional rights. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 This quotation includes the language in the decision that was absent from the judgment. See note 1, supra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As in Avellino and Carson, the facts of this case merit enjoining the Six Individual Defendants from dealing with some entities and individuals beyond the immediate scope of the Enterprise. The evidence underlying the January 13 [*48] Order indicates that, as in Avellino and Carson, the web of corruption, extortion, intimidation, and fraud extends well beyond the District Council, the Trust Funds, and the Locals. Messera's and Vario's objections are thus unavailing. Nonetheless, as in Avellino and Carson, the injunctive relief cannot be unconstitutionally broad. Thus, to the extent that any of the Proposed Injunctions exceeds the scope of the Enterprise, it must be looked at on a fact-and defendant-specific basis. The Government's Fifth Proposed Injunction would enjoin all Six Individual Defendants from: This injunction would prevent the Six Individual Defendants from returning to racketeering by engaging in their old Enterprise, and, for the reasons discussed above, is thus reasonable and appropriate under § 1964 and does not unconstitutionally infringe their associational rights. [*49] The Proposed Injunction does go further than the Enterprise, however, seeking to prevent the Six Individual Defendants from any labor organization activity whatsoever. In this sense the injunction is no broader than that in Carson, and, for the same reasons as there, it is appropriate here. The Government has demonstrated the interconnectedness of labor organizations and the pervasiveness of corruption throughout them. The same skills and tools used to corrupt one labor organization can be used to corrupt another. These factors counsel strongly against permitting the Six Individual Defendants to engage in any labor activity whatsoever: the same general category of activity as their Enterprise, but more broadly circumscribed. The Court of Appeals upheld such a broad injunction as not unconstitutionally infringing on the defendant's associational rights in Carson, nor does this injunction infringe them here. The only point of departure of this injunction from that in Carson is the explicit proscription against dealings with any benefit fund whatsoever. Carson mentioned by name only ILA-associated benefit funds. However, a careful look at its language demonstrates that [*50] it did so as an example of the types of labor organization activities proscribed, strongly suggesting that to the extent a benefit fund was affiliated with any labor organization (and all benefit funds, as the term was meant in Carson and is meant here, are so affiliated), the Carson defendants were enjoined from dealings with any of them. Thus, though worded differently, the Government's Proposed Injunction does not exceed the scope of that in Carson. The Six Individual Defendants will, therefore, be enjoined from dealings with any benefit funds. LaBarbara and Vario object that this Proposed Injunction will prevent them from earning a living, by making it impossible for them to be employed in any union and destroying their ability to be productively employed. For this reason, language will be added to the Government's proposed injunction mirroring that in the amended judgment in Carson, see Carson VI, 52 F.3d at 1184 n.10, permitting an employer of the Six Individual Defendants -- as long as it is unaffiliated with the MTDC, LIUNA, or one of the Locals -- to pay union dues on behalf of any one of the Six Individual Defendants, thereby assuring that, although he [*51] will not be permitted to join a union, he will not be entirely foreclosed from employment in a closed shop. See id. at 1185. Similarly, the injunction would be overbroad if it were to prevent any of the Six Individual Defendants from collecting a pension that is legally and legitimately his, at the time that it becomes due to him. For this reason, similar language will be added to the Government's proposed injunction mirroring that in the supplemental order in Carson, see Carson VI, 52 F.3d at 1184 n.10, permitting any of the Six Individual Defendants to draw on such a pension. In sum, the Six Individual Defendants will be enjoined from: The Government's Sixth and Seventh Proposed Injunctions would prohibit the Six Individual Defendants from:
and from: As worded, these Proposed Injunctions are overbroad for the same reasons as those proposed by the Government to prevent future associations between the Six Individual Defendants and affiliates of organized crime. An injunction against social interaction with affiliates of labor unions would seriously compromise the associational rights of the Six Individual Defendants without sufficient reason. Some social interactions surely may have contributed to the success of the Enterprise, and social and commercial associations often coalesce. Yet the Government's evidence falls short of demonstrating that purely social interactions among the Six Individual Defendants and labor union affiliates contributed to past racketeering or seriously threaten to contribute to future crimes. The language of Carson suggests at first blush that it might have intended to enjoin any interaction whatsoever among the defendants and affiliates of any union. However, Carson used the word "dealing", suggesting that it intended to enjoin only commercial interactions. Thus, Carson cannot be used as definitive [*54] authority to suggest that a blanket order prohibiting all contact between defendants and all union activity has been upheld in this circuit. Having limited the injunction to non-social interactions, however, the Government's proposed language is reasonable, constitutional, and consistent with the language in Carson and the spirit of Avellino, for the reasons noted above in the analysis of the Fifth Proposed Injunction. The Six Individual Defendants will thus be enjoined from:
and The Government's Eighth, Ninth, and Tenth Proposed Injunctions would enjoin the Six Individual Defendants from: To the extent that such an injunction is limited to commercial association, it is appropriate within the meaning of § 1964. Such language would prohibit the Six Individual Defendants from activities beyond the immediate scope of the Enterprise. Nonetheless, as noted above, § 1964 suggests that racketeers may be enjoined from the "same endeavor" as the enterprise engaged in. Here, as in Avellino and Carson, the Enterprise benefitted from and affected the broader contexts in which it operated. Although they were acting in their capacity as union officials, not employers of MTDC and LIUNA labor, the Six Individual Defendants committed acts that bore a serious impact on and required the cooperation of those employers. Those employers were [*56] not part of the Enterprise, but the Government has established that they were vulnerable to the influence of the Enterprise and remain so. Without enjoining the Six Individual Defendants from contact with such people, there exists a reasonable likelihood that the Six Individual Defendants will commit further acts of racketeering, and it is thus appropriate to enjoin them from commercial contact with employers of MTDC and LIUNA labor. LaBarbara, Messera, and Vario argue that the breadth of these injunctions would exclude them from a wide range of employment substantially unrelated to that connected with the Enterprise. They note that Avellino I, enjoining its defendants from participating in the carting industry, merely broadened the prohibition on the defendants within the same category of activity as the enterprise there: trade waste collection. They suggest that the appropriate parallel in this action is the injunction against all labor activity, since the Enterprise here involved specific labor activities. An injunction against association with employers of MTDC and LIUNA labor, they argue, is an injunction that is too far removed from the realm of the Enterprise in which they [*57] were involved. Yet the Government notes accurately that the Carson V district court issued language that enjoined its defendants from having any dealings with "any person or entity that does business on the Waterfront," 831 F. Supp. at 191-192, although not all employers on the Waterfront were held to be part of the Carson enterprise. Here, as there, labor and industry actors and activities were intertwined and inseparable, thus necessitating an injunction that exceeded the immediate scope of the enterprise. These objections do sound, however, in the Government's Tenth Proposed Injunction. A blanket prohibition against operation of construction or asbestos removal businesses would surely be too broad. The Government's evidence fails to suggest that the impact of the Enterprise and the acts of racketeering of the Six Individual Defendants were so pervasive as to affect those industries as broadly as their Proposed Injunction would suggest. The Eighth and Ninth Injunctions are sufficient to prevent a reasonable likelihood that the Six Individual Defendants would engage in similar acts of racketeering as those which underlay the January 13 Order. The Six Individual Defendants [*58] will be enjoined from: Finally, the Government proposes that the Six Individual Defendants be enjoined from: Such relief seems unnecessary and redundant. There is not a "reasonable likelihood" that without such an injunction past racketeering acts [*59] will continue. The mere existence of any preliminary or permanent injunctive relief has imposed or may impose in this action does and will itself suffice to prevent future racketeering. Neither the Avellino nor the Carson court deemed it necessary to issue such an injunction, nor does this Court. C. Messera's and Vario's Additional Objections Messera argues that the spirit of his plea agreement proscribes any relief against him in this action. Renewing the argument set forth in his letter of March 23, 1995, by Lawrence A. Vogelman, Messera asserts that the Assistant United States Attorney who is of counsel in this case, Allan N. Taffett, commenced this action only in light of his displeasure with the agreement into which Messera had entered with Taffett's predecessor, Orin S. Snyder. Messera argues that the Government acted in bad faith at the time of the plea agreement if it knew about its intention to bring this action, given that Messera and his attorney at the time believed that they were negotiating the full range of consequences that Messera would suffer as the result of the actions resulting in his prosecution. Therefore, Messera [*60] argues, the argument the Government now seeks is unreasonable and improper. Messera's objection is unavailing. The RICO statute specifically contemplates simultaneous criminal and civil liability for the identical acts of a single defendant. See 18 U.S.C. § 1964(d); see also Carson VI, 52 F.3d at 190-91. Moreover, nothing in Messera's plea agreement prohibits the Government from pursuing civil RICO remedies against him. It clearly states that in consideration for Messera's plea, he "shall not be subject to further criminal prosecution . . .," and further that "there are no promises, agreements or understandings between [the U.S. Attorney's] Office and James Messera other than as set forth" in the agreement. Vario asserts that the injunctions are excessive because the conditions of his supervised release subject him to conditions that make the injunctions unnecessary. Among those conditions are that he may not associate with convicted felons or criminals or engage in illegal activities. His employment is subject to scrutiny and approval, and his home is subject to warrantless searches. He must report regularly to his probation officer. [*61] The systemic nature of Vario's past racketeering activity and his alleged involvement with organized crime provide sufficient basis to find that the requested injunction is necessary to prevent and restrain RICO violations after the completion of his supervised release. Even during that period, the injunctions are not inappropriate, for they provide the attendant remedy of contempt. Vario objects further that the Government's assertions as to his former continued involvement in organized crime is speculative and without basis in fact. As discussed extensively above, the January 13 Order was not based on a finding of fact as to whether or not Vario was or is a member of an organized crime family, nor does this judgment make any such finding of fact. The injunctions rest on Vario's and the other Six Individual Defendants' past acts of racketeering, their involvement in the MTDC Enterprise, and the pervasive influence of organized crime on those Acts and within that Enterprise. Conclusion Upon the findings and conclusions stated above, the Government's motion for a permanent injunction is granted in part and denied in part. The Six Individual Defendants are hereby permanently [*62] enjoined from: Any objection urged by a party on which the Court has not commented has been considered by the Court and rejected summarily as irrelevant or meritless. Submit judgment on notice. It is so ordered. New York, N.Y. November 14, 1995 ROBERT W. SWEET U.S.D.J. |
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