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581 F. Supp. 279, *; 1984 U.S. Dist. LEXIS 19663, **;
115 L.R.R.M. 2829
UNITED STATES OF AMERICA, Plaintiff, v. LOCAL 560, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, et al., Defendants
Civil Action No. 82-689
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
581 F. Supp. 279; 1984 U.S. Dist. LEXIS 19663; 115 L.R.R.M. 2829
February 8, 1984 SUBSEQUENT HISTORY: [**1] As Amended March 8, 1984; Affirmed and Remanded December 26, 1985. CORE TERMS: membership, business agent, appointment, murder, executive board, labor organization, racketeering, convicted, appointed, conspiracy, indicted, pattern of racketeering activity, intimidation, election, extortion, peace, secretary-treasurer, counterfeiting, payoff, predicate, indirectly, indictment, incumbent, salary, incarcerated, sentenced, incarceration, climate, leader, disappearance COUNSEL: W. Hunt Dumont, United States Attorney, for the District of New Jersey, By: Robert C. Stewart, Thomas L. Weisenbeck, Assistant U.S. Attorney, Leopold Laufer, Special Attorney, United States Department of Justice, Newark, New Jersey, For Plaintiff. Edward A. Cohen, Esq., Schneider, Cohen, Solomon & DiMarzio, Jersey City, New Jersey, For defendants Local 560 and the Severance Pay Plan. Harvey Weissbard, Esq., West Orange, New Jersey, For defendants Provenzano, Sheridan, Dildine, Reynolds, Sciarra and Jaronko. Herbert New, Esq., Brenner, New & Brenner, Livingston, New Jersey, For defendant Trucking Employees of North Jersey Welfare Fund. Mr. Stephen Andretta and Mr. Gabriel Briguglio, Pro Se. JUDGES: Ackerman, District Judge. OPINIONBY: ACKERMAN OPINION: [*282] ACKERMAN, District Judge. John L. Lewis, former president of the Congress of Industrial Organizations and the United Mine Workers once said that "Labor, like Israel, has many sorrows." A careful review of the evidence in this unprecedented case reveals the verity of that observation. It is not a pretty story. Beneath the relatively sterile language of [**2] a dry legal opinion is a harrowing tale of how evil men, sponsored by and part of organized criminal elements, infiltrated and ultimately captured Local 560 of the International Brotherhood of Teamsters, one of the largest local unions in the largest union in this country. This group of gangsters, aided and abetted by their relatives and sycophants, engaged in a multifaceted orgy of criminal activity. For those that enthusiastically followed these arrogant mobsters in their morally debased activity there were material rewards. For those who accepted the side benefits of this perverted interpretation of business unionism, see J. Hutchinson, The Imperfect Union p. 371, (1970), there was presumably the rationalization of "I've got mine, why shouldn't he get his." For those who attempted to fight, the message was clear. Murder and other forms of intimidation would be utilized to insure silence. To get along, one had to go along, or else. It is important to state what the evidence in this case does and does not show. It shows that a trade union which is by origin and nature a voluntary organization is susceptible to the malicious machinations of others, as Congress perceived [**3] in enacting the Landrum-Griffin and RICO Acts. It does not demonstrate that unions or union officials in general are riddled with racketeering or corruption. Most authorities are convinced that the overwhelming number of unions and union officials are "untroubled by the problem of corruption." Id. Crooks and racketeers are anathema to a significant portion of the trade union movement. See id.; D. Dubinsky & A. Raskin, David Dubinsky: A Life With Labor (1977); P. Jacobs, The State of the Unions (1963). See also "The RICO Civil Fraud Action in Context: Reflections on Bennett v. Berg", 58 Notre Dame L.Rev. 237, 303 n.170 (1982). As Professor Hutchinson observed in his book The Imperfect Union -- A History of Corruption in American Trade Unions (1970) at p. 7-8: Corruption owes little more to immoral union leaders than it does to predatory employers who, throughout the history of American business, have sought by cheating and violence to circumvent the strictures of competition, unionization and the law. It is a companion of the corruption in politics and law enforcement which for generations has characterized some of the major cities of the nation, [**4] sheltering the guilty and embroiling the innocent in crime. It owes a debt to the insanity of Prohibition and its enduring legacy of organized defiance of the law. It thrives in the procedural jungle of the American criminal law. It stems from the social conditions of the cities -- from the tensions of an immigrant society, the customs of racial discrimination and ethnic isolation, the miseries of the slums and the frustrations of the underprivileged, the ignorance of the poor and the indifference of the rich. It has, finally, drawn strength from a public philosophy which, in electing for the competitive society, has tended to trumpet only its virtues, according either praise or tolerance to the victors in a battle lightly burdened with rules."Applying these precepts and the law applicable to this case I find that the record clearly demonstrates that the Provenzano brothers (Anthony, Nunzio and Salvatore) and their group betrayed the membership of Local 560. [*283] David Dubinsky, former President of the International Ladies Garment Workers Union stated in his autobiography that "racketeering is the cancer that almost destroyed the American trade-union movement." D. Dubinsky [**5] & A. Raskin, supra. The metaphor of disease is apt. See P. Johnson, Modern Times p. 102 (1983). For reasons set forth below, I have determined in this case, in accordance with law and to secure justice, to use a judicial scalpel to excise this malignancy from this union and its members. To do any less would be to ignore the laws of the land and do a disservice to the thousands of labor leaders who earn their daily bread by honestly striving to improve the wages, hours and working conditions of their members. This is an action brought pursuant to the Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1961 et seq. n1 Plaintiff United States alleges, inter alia, that Local 560 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 560), together with its Welfare and Pension Funds (Funds) and its Severance Pay Plan (Plan), n2 has become, through the actions of the individual defendants, a "captive labor organization." The United States seeks, first, the appointment of a receiver or trustee to serve in the capacity of the Local 560 Executive Board until such time as the membership can freely nominate [**6] and elect new officers. The complaint also seeks injunctive relief against defendants Salvatore Provenzano, Joseph Sheridan, Josephine Provenzano, J. W. Dildine, Stanley Jaronko, Thomas Reynolds, Sr., and Michael Sciarra, inter alia barring them from union office until such time as a democratic election of officers by the membership may be held. Finally, the complaint seeks injunctive relief against defendants Anthony Provenzano, Nunzio Provenzano, Stephen Andretta and Gabriel Briguglio, inter alia barring them from any further contacts with Local 560. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Chapter 96 of Title 18, 18 U.S.C. §§ 1961-1968, was added to that title by Title IX of the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 941. n2 The Funds have been merged and split several times, the two most recent events being the March 1, 1974 separation of Locals 617 and 641 from the Trucking Employees of North Jersey Welfare Fund (and Pension Plan) and the May 4, 1977 merger of the North Jersey Fund and Plan with that of the Trucking Employees of Passaic and Bergen Counties. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**7] The complaint charges that the "Local 560 Enterprise" n3 is an enterprise within the meaning of 18 U.S.C. § 1961(4). n4 It further alleges that the individual defendants are associated together under the leadership of defendant Anthony Provenzano as the "Provenzano Group," and that this Group conspired, in violation of 18 U.S.C. § 1962(d), n5 to violate, and actually did violate, 18 U.S.C. § 1962(b) and (c). n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The complaint refers to the nominal defendants (Local 560, the Fund and the Plan) collectively as the "Local 560 Enterprise". n4 18 U.S.C. § 1961(4) provides: "enterprise" includes any individual, partnership, corporations, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity . . . . n5 18 U.S.C. § 1962(d) provides: (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section. n6 18 U.S.C. § 1962(b) and (c) provide: (b) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**8] Specifically, paragraph 12(a) of the complaint alleges that the Provenzano Group, aided and abetted by past and present members of the Executive Board of Local 560 (including defendants Salvatore Provenzano, Joseph Sheridan, Josephine Provenzano, J. W. Dildine, Thomas Reynolds, [*284] Sr., Michael Sciarra, and Stanley Jaronko) unlawfully acquired and maintained, directly and indirectly, an interest in and control of the Local 560 Enterprise through a pattern of racketeering activity in violation of § 1962(b) of the RICO Act. This racketeering activity was alleged to have involved murder and the systematic use of extortion, with the latter allegedly consisting of, according to the complaint, "the wrongful use of actual and threatened force, violence and fear of physical and economic injury in order to create within Local 560 a climate of intimidation which induced the members thereof to consent to the surrender of certain valuable property in the form of their union rights as guaranteed by the provisions of Sections 157 and 411 of Title 29 of the United States Code . . . ." n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 29 U.S.C. § 157 is section 7 of the Taft-Hartley Act, while 29 U.S.C. § 411 was enacted as Title I of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA) and is referred to as the "Bill of Rights of Members of Labor Organizations." Section 411 provides: (a)(1) Equal rights. -- Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws.The Supreme Court has recently noted that the emphasis of § 411 is "on the rights of union members to expression without fear of sanctions by the union, which in many instances could mean loss of union membership and in turn loss of livelihood." Finnegan v. Leu, 456 U.S. 431, 102 S. Ct. 1867, 1870, 72 L. Ed. 2d 239 (1982). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**9] The particular acts of the defendants which allegedly created the climate of intimidation [*285] which in turn allegedly induced the surrender of the members' rights are set out as subparagraphs (1) through (28) n8 of paragraph 12 (a). These alleged acts are:
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 Subparagraphs 12(a)(26), (27) and (28) were added to the complaint upon application by the plaintiff for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(a), which application was granted on September 20, 1982. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**12] [*286] Paragraph 12(b) of the complaint alleges that the Provenzano Group, aided and abetted by various others of the individual defendants, "unlawfully did conduct and participate, directly and indirectly, in the conduct of the affairs of the Local 560 Enterprise through a pattern of racketeering activity . . ." in violation of § 1962(c) of the RICO Act. The "predicate acts" which are alleged to have constituted this pattern of racketeering activity are set out as subparagraphs (1) through (5) or paragraph 12(b). These alleged acts are: (1) the extortion of $17,100 from Walter Dorn and his company (Dorn Transport, Inc. of Rensselaer, New York) in return for "labor peace; (2) the wrongful conversion by defendant Anthony Provenzano, aided and abetted by successive defendant members of the Local 560 Executive Board, of approximately $223,785 in Local 560 funds "by means of false and fraudulent pretenses, representations, and promises, and pursuant to a scheme and artifice to defraud . . .;" (3) the wrongful receipt by Provenzano Group members of payments, loans and other things of value from certain employers (Interocean Services, Inc. and Di-Jub Leasing, Inc.) in exchange for [**13] "labor peace"; (4) the unlawful receipt by defendant Anthony Provenzano, aided and abetted by Salvatore Briguglio, of certain fees, kickbacks, gifts or things of value in the form of certain Florida real estate because of, and with intent to be influenced with respect to, his actions and decisions relating to the Benefit Fund; and (5) the wrongful receipt by defendant Nunzio Provenzano, together with Irving Cotler and others, as associates of the Provenzano Group, of "labor peace" payments by certain employers, specifically Pacific Intermountain Express Company, Mason and Dixon Lines, Inc., T.I.M.E. -- DC, Inc. and Helms Express. Finally, the initial portion of paragraph 12 of the complaint contains the government's § 1962(d) allegations. It charges that defendants Anthony Provenzano, Nunzio Provenzano, Stephen Andretta, Thomas Andretta, Gabriel Briguglio and others associated with the Provenzano Group unlawfully did conspire together to violate § 1962(b) and (c) with the end of infiltrating, dominating and exploiting the Local 560 Enterprise. In its demand for relief, the government requests: (1) that the Provenzano Group be enjoined from having any dealings, directly or indirectly, [**14] with any officer or employee of the Local 560 Enterprise or of any labor organization or employee benefit plan as defined in Title 29 about any matter which relates directly or indirectly to the business affairs of the Local 560 Enterprise or other such labor organization or benefit plan; (2) that all current Local 560 Executive Board members -- Salvatore Provenzano, Joseph Sheridan, Josephine Provenzano, J. W. Dildine, Thomas Reynolds, Sr., Michael Sciarra and Stanley Jaronko -- be enjoined from acting in any official capacity for or on behalf of the Local 560 Enterprise; (3) that the court appoint one or more trustees to discharge all duties and responsibilities of the Executive Board of Local 560 and such other tasks as the court may direct; (4) that at an appropriate time the trustee be instructed to conduct, with the assistance of the Department of Labor and the Department of Justice, a general election in order to select officers for the Executive Board of Local 560 -- the election to be structured in such a way as to ensure that the nomination, primary and final selection processes will not be vulnerable to forms of intimidation and will reflect the decision, the government [**15] requests, of at least eighty percent of the members who are eligible to vote; (5) that the court permanently enjoin all individual defendants herein from having any future dealings of any nature whatsoever, directly or indirectly, with any officer, agent, representative or employee of the Local 560 Enterprise or any other labor organization. There have been a number of proceedings in this matter prior to trial which merit mention. First, a consent order was entered on June 15, 1982 approving the terms of a stipulation of settlement between the plaintiff United States and defendant Anthony Provenzano, inter alia prohibiting the latter from "any form of [*287] association with any enterprise (within the meaning of Section 1961 of Title 18 of the United States Code), which enterprise seeks, directly or indirectly, to dominate, control, conduct or otherwise influence the affairs of any labor organization or any employee benefit plan (within the meaning of Title 29 of the United States Code)." A similar consent order was entered on September 15, 1982 with regard to defendant Nunzio Provenzano, and, on January 14, 1983, with regard to defendant Thomas Andretta. Finally, on November [**16] 1, 1982 I denied a motion brought by defendant Local 560 pursuant to Fed. R. Civ. P. 12(b) (6) to dismiss paragraph 12(a) of the complaint for failure to state a cause of action. United States v. Local 560, 550 F. Supp. 511 (D.N.J. 1982). Following a review of the legislative history of both the Hobbs Act, 18 U.S.C. 1951, and of the LMRDA, and relying on United States v. Boffa, 688 F.2d 919 (3d Cir. 1982), I concluded that the rights guaranteed to union members by the LMRDA's Bill of Rights, 29 U.S.C. § 411, are intangible rights which fall within the ambit of the Hobbs Act. I further concluded that the Hobbs Act as construed in this manner was not impliedly repealed by the enactment of the LMRDA, and that conduct which is regulated or proscribed by the LMRDA may also violate RICO. n9 RICO, like the LMRDA, is, I determined, legislation intended to supplement the panoply of remedies designed to reach racketeering. Id. at 524-25. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n9 I specifically determined that § 530 of the LMRDA does not prohibit the same conduct prohibited under the Hobbs Act. Since allegations of Hobbs Act violations serve as predicate offenses in this action, I found no merit in defendant's argument that paragraph 12(a) in essence made § 530 a predicate crime under RICO in violation of that statute's express definition of "racketeering activity". 550 F. Supp. at 524. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**17] By order dated March 25, 1982, my former colleague the Honorable H. Curtis Meanor directed that the plaintiff's request for preliminary and final injunctive relief be merged pursuant to Fed. R. Civ. P. 65(a)(2), and that the case proceed to final judgment. On May 20, 1982, this matter was reassigned to me from Judge Meanor. The non-jury trial of this case began on January 25, 1983. The trial encompassed fifty-one days of testimony, lasting through May 17, 1983, the testimony comprising nearly 8,000 pages in transcript form. I have carefully considered the live testimony, the exhibits and deposition testimony admitted at trial, and the arguments of counsel. This memorandum constitutes the court's decision, and includes the court's findings of fact and conclusion of law pursuant to Fed.R.Civ.P. 52(a). I. THE PARTIES Defendant Local 560 is an unincorporated labor association which was originally chartered on May 11, 1911 by the International Brotherhood of Teamsters. It has its offices at 707 Summit Avenue in Union City, New Jersey. As of May, 1982, it had approximately 10,000 members employed by approximately 425 companies in the metropolitan New Jersey -- New York area. As [**18] such it is a labor organization engaged in an industry affecting interstate commerce within the meaning of Section 402 of Title 29 of the United States Code. Under its constitution, seven elective officers are charged with managing the day to day affairs of Local 560. These officers are: a president, a vice-president; recording secretary; secretary-treasurer; and three trustees. These seven officers together constitute Local 560's Executive Board. This Executive Board is generally authorized and empowered to conduct and manage the affairs of the organization between membership meetings. Defendant Trucking Employees of North Jersey Welfare Fund, Inc. and its Pension Account are located in Local 560's building in Union City. The funds were and are today welfare and pension benefit plans within the meaning of Section 1002 of Title 29 of the United States Code. As such they are subject to the provisions of the [*288] Welfare and Pension Plans Disclosure Act (prior to approximately September 2, 1974) and the Employee Retirement Income Security Act (after approximately September 2, 1974). As noted previously, two other benefit plan entities were merged into the Funds during May [**19] of 1977. These were formerly known as the Trucking Employees of Passaic and Bergen Counties Welfare Fund and the Trucking Employees of Passaic and Bergen Counties Pension Fund. Both of these benefit plans were subject to the provision of the Welfare and Pension Plans Disclosure Act at the time of their merger into the Funds. The Funds are controlled by a governing body which is composed of four trustees appointed by the Executive Board of Local 560 and four trustees appointed by two employer associations whose member companies have collective bargaining agreements with Local 560. The current employee trustees include defendant Salvatore Provenzano, defendant Stanley Jaronko, and defendant Joseph Sheridan. n10 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n10 Thomas Reynolds, Sr. was a trustee of the Fund as of the time this litigation commenced and for a period after the trial began, but has since resigned. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Local 560 Officers and Employees Severance Pay Plan is also operated out of Local 560's offices. It is an employee benefit plan within the meaning [**20] of Section 1002 of Title 29 of the United States Code in that it provides severance pay benefits to the employees of Local 560. The current trustees of the Plan are Salvatore Provenzano and Josephine Provenzano. A brief description of each of the remaining nine individual defendants may be useful at this point. First, Salvatore "Sam" Provenzano has been the President of Local 560 since approximately July of 1981, when the Executive Board appointed him to that position. n11 Prior to that time he had been employed by Local 560 as a Business Agent between approximately November 10, 1959 and August 8, 1961; as a Trustee between approximately August 8, 1961 and November of 1965, and again between approximately January and May of 1966; as President between approximately May of 1966 and November of 1975; and as the Vice-President between approximately December of 1975 and July of 1981. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 This appointment was presumably made pursuant to the Executive Board's authority to fill officer vacancies which occur during the term of an office. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**21] Joseph Sheridan has been the Vice-President of Local 560 since approximately July of 1981, when the Executive Board appointed him to that position. Prior to that time he had been a Business Agent between approximately July 7, 1972 and September 1, 1978, and thereafter a Trustee between approximately September 1, 1978 and July of 1981. Josephine Provenzano has been the Secretary-Treasurer of Local 560 since approximately June of 1978, when the Executive Board appointed her to that position. Prior to that time, she had been employed by Local 560 as an office worker from 1976 until the time of her appointment. Josephine Provenzano is the daughter of defendant Anthony Provenzano and the niece of defendants Salvatore and Nunzio Provenzano. J. W. Dildine has been the Recording Secretary of Local 560 since approximately 1968, when the Executive Board appointed him to that position. Prior to that time he had been employed by Local 560 as a Business Agent between approximately 1963 and 1968. Thomas Reynolds, Sr. has been a Trustee of Local 560 since February 9, 1977. Before that time, he was employed by Local 560 as a Business Agent between September 24, 1970 and February 9, 1977. [**22] He is the brother-in-law of defendant Nunzio Provenzano and the father of former Business Agent Andrew Reynolds. Michael Sciarra has been a Trustee of Local 560 since May 28, 1981. Prior to that time he was employed by Local 560 as a Business Agent between July 7, 1972 and September 30, 1976, and again between December of 1977 and May 28, 1981. Sciarra [*289] has been a member of Local 560 since approximately 1954. Stanley Jaronko has been a Trustee of Local 560 since July 13, 1981. Before that time, he served Local 560 in the capacity of Business Agent between December 12, 1977 and February 19, 1981, and as a Trustee between February 19 and May 28, 1981. Stephen Andretta, who testified at trial pursuant to a grant of use immunity under 18 U.S.C. §§ 6002 and 6003, was a Business Agent for Local 560 between approximately August of 1973 and October of 1976. His membership in Local 560 dates from the early 1950's, and he held the position of shop steward for Local 560 at Eazor Express Co. between the mid-1960's and August of 1973, and again between approximately October of 1976 and 1980. The evidence at trial indicated that Stephen Andretta had known Salvatore Briguglio [**23] for over twenty years as of the early 1970's. Either through Salvatore Briguglio or his brother Thomas, Stephen Andretta met Armand Faugno sometime during the latter 1960's. Around 1971, notwithstanding his position as a shop steward with Local 560, Stephen Andretta had an ownership interest in West End Trucking Company, which was controlled at least in part by Armand Faugno. Further, during the period between approximately 1971 and late 1972, Stephen Andretta and Salvatore Briguglio would not infrequently visit Armand Faugno at the latter's place of business in Jersey City, New Jersey. During the early 1970's, Stephen Andretta also knew Frederick Salvatore Furino, and was friendly with Ralph Pellechia and Ralph Michael Picardo. On February 22, 1979, Stephen Andretta was indicted in the District of New Jersey, along with Anthony Provenzano, Thomas Andretta, Gabriel Briguglio and Ralph Pelleccia, on RICO charges (specifically 18 U.S.C. § 1962(c) and (d)) stemming inter alia from the demand for and receipt of "labor peace" payments from trucking companies which serviced Seatrain Lines between 1969 and 1977 (Seatrain Labor Peace Payoffs). On July 10, 1979, following his conviction, [**24] Stephen Andretta was sentenced to a ten-year term of imprisonment, which he is currently serving. See United States v. Provenzano, 620 F.2d 985, 989 (3d Cir. 1980). Gabriel Briguglio was a member and officer of Local 84 of the International Brotherhood of Teamsters, which has its offices at 1224 Anderson Avenue in Fort Lee, New Jersey, until March 31, 1980. Local 84 merged with Local 560 in May of 1980. n12 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 It should be noted that Gabriel Briguglio has as of yet not become a member of Local 560 by virtue of or following the merger of these two Locals. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Gabriel Briguglio was indicted on February 22, 1979, in the District of New Jersey, along with Anthony Provenzano and others, in the Seatrain Labor Peace Payoffs case. On May 25, 1979, he was convicted of those charges, and on July 10, 1979 he was sentenced to seven years of imprisonment. United States v. Provenzano, 620 F.2d 985, 989 (3d Cir. 1980). As to the three individual defendants who have entered into consent judgments in this matter, Anthony [**25] Provenzano was employed by Local 560 as a Business Agent between approximately 1948 and 1958, as the President between approximately 1958 and May of 1966, and as Secretary-Treasurer between November 24, 1975 and June of 1978. Anthony "Tony Pro" Provenzano's history is a long one. On November 15, 1960 he was indicted in the District of New Jersey on one count of Hobbs Act Extortion (18 U.S.C. § 1951) relating to the demand and receipt of what is commonly known as "labor peace" payoffs from the Dorn Transportation Company between 1952 and 1959. On July 12, 1963, having been convicted on this count, Anthony Provenzano was sentenced to a term of seven years. Between approximately May of 1966 and 1970 he was incarcerated on that sentence. During 1962, Anthony Provenzano was indicted again in the District of New Jersey for Taft-Hartley violations (28 U.S.C. § 186) relating to the wrongful receipt of a [*290] house from Eastern Freightways Company. These charges were, however, dismissed during 1967. In 1975, Anthony Provenzano was indicted in the Southern District of New York for conspiracy to violate the anti-kickback statute (18 U.S.C. §§ 371, 1954) relating to a proposed [**26] loan from the Utica Teamsters Benefit Fund for the renovation of the Woodstock Hotel. During July of 1978 he was convicted of these charges and sentenced to a four year term of imprisonment. On June 23, 1976, Provenzano was indicted in Ulster County, New York, along with Salvatore Briguglio and Harold "K.O." Konigsberg, on charges of conspiracy and murder (pursuant to New York Penal Law § 580-A and § 1044) relating to the 1961 death of Anthony Castellitto. On June 14, 1978, he was convicted on the murder count, while the conspiracy to commit murder count was dismissed. On June 21, 1978, Anthony Provenzano was sentenced to life imprisonment. Finally, on February 22, 1979, Anthony Provenzano was indicted in the District of New Jersey, along with Gabriel Briguglio, Stephen and Thomas Andretta and Ralph Pellecchia on RICO charges in the Seatrain Labor Peace Payoffs case. On May 25, 1977, he was convicted of these charges, and, on July 10, 1979, he was sentenced to a twenty-year term of imprisonment and remanded. He remains incarcerated on that conviction today. See United States v. Provenzano, 605 F.2d 85 (3d Cir. 1979). Nunzio Provenzano, the brother of Anthony and Salvatore [**27] Provenzano, was employed by Local 560 as a Business Agent between approximately 1963 and August 6, 1966, as a clerk between approximately 1969 and 1970, again as a Business Agent between approximately 1970 and January 25, 1973, as Secretary-Treasurer between approximately January 25, 1973 and November 24, 1975, and as President between approximately November 24, 1975 and July of 1981. On December 26, 1961, Nunzio Provenzano was indicted in New York County, New York, along with Salvatore Briguglio and a third defendant, on charges of conspiracy and Attempted Grand Larceny (New York Penal Law § 560 and 1294) flowing from a scheme to demand what might be characterized as "labor peace" payments from the Braun Company and Hubert J. Braun, Jr. during December of 1961 (Braun Payoff Demand). On January 29, 1963, he was convicted of attempted grand larceny, and, on March 5, 1963, he was sentenced to a term of two to four years. He served this sentence in New York between approximately August of 1966 and February of 1969. On September 4, 1980, Nunzio Provenzano was indicted in the District of New Jersey, along with Irving Cotler, Salvatore Provenzano, and Michael Sciarra, for RICO violations [**28] (specifically 18 U.S.C. § 1962(c) and (d)) stemming from the wrongful demand and receipt of "labor peace" payments from four trucking companies between 1971 and 1980, a series of incidents often referred to as the "City-Man Labor Peace Payoffs." On May 5, 1981, Nunzio Provenzano was convicted on these charges, and, on July 7, 1981, he was sentenced to a ten-year term of imprisonment. He is presently incarcerated on this conviction. Finally, Thomas Andretta, the brother of Stephen Andretta, has been a member of Local 560 during several periods since 1955, including from approximately August 30, 1955 through November 30, 1956; from October 29, 1959 through January 15, 1960; from January 10, 1962 through November 29, 1965; and from February 27, 1978 through July of 1979. On March 31, 1967, Thomas Andretta was indicted in Middlesex County, New Jersey, along with Armand Faugno, for having used threats to injure in the collection of a loan between March 13 and 23, 1967, in violation of N.J.S.A. 2A:105-4 (Middlesex County Loansharking Transaction). See State v. Andretta, 61 N.J. 544, 545, 296 A.2d 644 (1972). On May 17, 1973, Thomas Andretta pleaded guilty to that charge. On July [**29] 10, 1973, he was sentenced to [*291] serve from one to two and a half years in prison. During early 1968, while free on bail in the Middlesex County Loansharking Transaction case, Thomas Andretta was indicted in the District of New Jersey, along with Frederick Salvatore Furino, on charges of Theft from Interstate Shipment, in violation of 18 U.S.C. § 659, relating to the theft of Skil Tools at the Canny Trucking terminal during January of 1968 (Skil Tools theft). Following his guilty plea in that case he was, on or about April 17, 1969, sentenced to a one year term of imprisonment and remanded. On July 22, 1971, Thomas Andretta was indicted in the District of New Jersey, along with Salvatore Briguglio, Armand Faugno and three others, on counterfeiting charges under 18 U.S.C. §§ 371, 472 474 (Counterfeiting case). He later plead guilty and, on July 10, 1973, was sentenced to fourteen months of imprisonment. During the early 1970's except when he was incarcerated, Thomas Andretta, along with Ralph Picardo, was a regular and not infrequent visitor to the Local 560 offices, where he and Ralph Picardo were hosted by Salvatore Briguglio. During roughly this period -- between [**30] approximately 1970 and late 1972, Thomas Andretta was apparently employed by Armand Faugno. On February 22, 1979, Thomas Andretta was indicted in the District of New Jersey, along with Anthony Provenzano and others, in the Seatrain Labor Peace Payoffs case. Following his conviction in that matter, he was sentenced on July 10, 1979 to a twenty-year term of imprisonment. United States v. Provenzano, 620 F.2d 985, 989 (3d Cir. 1980). He is currently incarcerated on this sentence. The other individuals who figure in this matter, but who are not named as defendants, include Robert A. Luizzi, who has been a Business Agent for Local 560 since September of 1978. Prior to that time he was employed by the Local as a clerk between approximately 1960 and 1963, as a Business Agent between 1964 and 1967, and as a Trustee between May 15, 1967 and November of 1980. Luizzi also held the position of Trustee for the Funds from March 12, 1974 until November of 1980. Salvatore Briguglio had been a member of Local 560 since the 1950's and was employed by it as a Business Agent from September of 1961 to August 5, 1966; from April 25, 1969 to June of 1973; and again from February of 1974 until [**31] his death on March 21, 1978. Salvatore Briguglio also held the position of Trustee of the Passaic and Bergen Funds from 1972 until June of 1973 and from early 1974 until January 25, 1975. On December 26, 1961, Salvatore Briguglio was indicted in New York County, New York, along with Nunzio Provenzano on the Braun Payoff Demand scheme. He was convicted of Attempted Grand Larceny and was incarcerated in New York between approximately August of 1966 and February of 1969 on that conviction. On July 22, 1971, Salvatore Briguglio was indicted in the District of New Jersey, along with Thomas Andretta, Armand Faugno and three others, in the counterfeiting case. Following his plea of guilty on these charges, he was sentenced on July 10, 1973 to a term of fourteen months of imprisonment. Salvatore Briguglio was incarcerated on this sentence until approximately February of 1974. Between the late 1960's and the mid-1970's, except during the periods when he was incarcerated, Salvatore Briguglio often socialized at the Chateau Renaissance Restaurant in Hudson County, New Jersey, a place also frequented by Stephen and Thomas Andretta, Armand Faugno, Frederick Salvatore Furino and Ralph Michael [**32] Picardo. Salvatore Briguglio's involvement with Picardo and the Provenzano Group is also exemplified by the fact that during the period of the Seatrain payoffs, Salvatore Briguglio promoted the interests of Picardo by persuading Salvatore Provenzano to facilitate a meeting between Picardo and Thomas Durkin (Seatrain's attorney) so that Picardo could drum up additional [*292] business for Picardo's trucking company. On June 23, 1976, Salvatore Briguglio was indicted in Ulster County, New York, along with Anthony Provenzano and Harold Konigsberg for the 1961 Castellitto murder. On March 21, 1978, while under indictment in that case, Salvatore Briguglio was shot to death on Mulberry Street in New York, New York. Armand Faugno was indicted on March 31, 1967, along with Thomas Andretta, in the Middlesex County Loansharking Transaction case. State v. Andretta, 61 N.J. 544, 545, 296 A.2d 644 (1972). On July 22, 1971, Faugno was indicted in the District of New Jersey, along with Salvatore Briguglio, Thomas Andretta and three others, in the Counterfeiting case. n13 During December of 1972, while under indictment in both of these cases, Armand Faugno "disappeared." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 While the exhibits relating to these two indictments may have inadvertently or incorrectly been ruled inadmissible during the trial in this matter, Salvatore Provenzano's testimony provides an alternative basis for my findings of fact on these matters. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**33] Ralph Michael Picardo was a member of Local 560, as well as being the principal operating officer of several trucking companies, including Lift-Van Transport. Picardo was a friend and associate of Stephen Andretta and had an affiliation with Seatrain Lines. On February 22, 1979, Ralph Pellecchia was indicted, along with Anthony Provenzano and others, in the Seatrain case. On April 26, 1979, he pleaded guilty to related tax charges contained in that indictment. On July 2, 1979, he was sentenced to two and a half years of imprisonment. Frederick Salvatore Furino was, during the late 1960's and early 1970's, a friend and associate of Stephen Andretta, Thomas Andretta, Salvatore Briguglio, and Michael Sciarra, and knew Ralph Picardo. In March of 1968, Furino was indicted in the District of New Jersey in the Skil Tools Case. Later, during the latter part of the 1970's, Furino operated a trucking company which provided non-union labor to the Canny Trucking operation which was under contract to Local 560. On June 11, 1982, the body of Frederick Salvatore Furino was recovered. The crime has never been solved. Finally, Salvatore Sinno played a prominent role at trial as one of the [**34] government's chief witnesses. Sinno, a self-described criminal, was an early associate of the Provenzanos and their friends. CREDIBILITY FINDINGS Salvatore (Sam) Provenzano During the course of his direct testimony Salvatore Sinno was asked about Salvatore Provenzano: Sam Provenzano presently is an International Vice President of the Teamsters Union, President of Joint Council #73, and President of Local 560. He thus wields great power on a national as well as local level. He is intelligent, affable and likeable. Had Sam Provenzano decided to shed the company he has kept for at least 25 years, there is little doubt in my mind that he would occupy a prominent place on labor's scene today. The evidence is highly persuasive that from the late 50's on into the 70's, Anthony (Tony Pro) Provenzano, ran this union with an iron hand whether in or out of prison or office. Sam and Nunzio played musical chairs in minding the store for Tony to satisfy the technical requirements of the law. At some point in the 70's Sam came into his own. With power at his fingertips, he ran the show and still does. Did he stay "more or less" clean as Sinno had testified? He did not. Most of the time he helped to steer the ship the way Tony wanted it and made sure the same crew remained on board. I listened in [**36] amazement to him persistently proclaim his belief in the innocence of his brothers and other members of this criminal syndicate with respect to various crimes that they had been convicted of or pled guilty to. Was he naive, blind or deaf? No. Salvatore Provenzano, in my judgment, knows the truth and is oblivious to it. Why? A revealing answer was provided on April 27, 1983 when he was asked on cross examination:
(emphasis supplied) He still does. For Sam Provenzano inherited a legacy of corruption which has been preserved by him to this very day. In speaking of Tony in partial response to my question he said: "He would never do anything to hurt this membership." The record is otherwise. JOSEPHINE PROVENZANO Miss Provenzano, daughter of Anthony Provenzano, has been the Secretary-Treasurer of Local 560 since 1978 when she was elected to that office at the age of 23 to succeed her father who had been convicted of murder. She presently earns $64,000 per year plus perks. She has an engaging personality and has no illusions as to why she was appointed. She said: Whatever experience Miss Provenzano lacks, she makes up in candor. Her understandable love for her father transcends everything else. STANLEY JARONKO As pointed out previously, Mr. Jaronko has been a member of the Local since 1949 and a business agent since 1977. He was a shop steward for 17 years. He is a trustee of the union and a union representative to the Trucking Employees of North Jersey Fund (TENJ). He was asked:
He was asked: With respect to the Maislin Terminal incident involving Local 560 member August Muller, described infra, I find Mr. Jaronko's testimony unconvincing and his version of the story unbelievable. A careful review of Mr. Jaronko's testimony reveals that, with one exception, he steadfastly refused to accept a verdict of guilty involving the Provenzanos. His rationale -- they were convicted on the testimony of an informer. Overall, I found Mr. Jaronko to be fiercely loyal to the Provenzanos, completely indifferent to the history of criminal activity on the part of various individuals, including Anthony and Nunzio Provenzano. Mr. Jaronko's fealty to the present regime is steadfast beyond question. [**42] His testimony left much to be desired. J. W. DILDINE A business agent of Local 560 and Recording Secretary since 1968, Mr. Dildine impressed me as an intelligent individual who in retrospect "sold himself to the devil" twenty years ago when he agreed to come to work for Anthony Provenzano as a business agent. He testified in an extremely lucid manner when confronted with the sordid history of the local and its leaders. He was calm and for a time quite impressive and persuasive. He testified as follows: THE COURT: What is your feeling regarding all these involvements affecting Mr. Nunzio Provenzano? THE WITNESS: My personal feeling is that I would have to judge Nunzio Provenzano as well as Salvatore Provenzano and Anthony Provenzano in my personal contact with them and my personal relationship with them. THE COURT: Yes, sir. THE WITNESS: It has always been one of a strict business, from the office. Over the years we had grown, I guess, close because of our business association, within that office. THE COURT: Yes, sir. THE WITNESS: Outside of that office, we did no, how would I put it, personal contact where we socialized or whatever. I came on the scene as a, as, [**43] the expression, a new kid on the block. I had to prove myself. I came in through the appointment of Mr. Anthony Provenzano. I dug in. I worked hard. I tried to repay that appointment by dedication and hard work. So my association with these gentlemen were always above board. They never asked me to be involved in any kind of skullduggery, nor was I ever aware that there was any skullduggery. It was strictly, in that office, as even today, these people worked very hard. They put in a lot of hours, and they really tried to do the job for the membership. So in answer to your question, your Honor, I don't know that there has ever been a time that I, and I have had many conversations with Anthony as well as Nunzio, when he was the President, and even today, Salvatore, and their main concern was and is today getting the job done and beyond that, I don't know what more I can say. THE COURT: All right. Would it be fair then to conclude that, insofar as Nunzio is concerned, Nunzio Provenzano, that you don't believe he was ever involved in any skullduggery, to use your expression? THE WITNESS: To my knowledge, no, sir. THE COURT: And you believe in his innocence? THE WITNESS: [**44] Yes, sir. THE COURT: Okay, Now -- [*296] THE WITNESS: That was in the June thing. The other one, that is another matter. THE COURT: Well, I presume that your opinion is the same with respect to the union conviction? THE WITNESS: Yes, sir. THE COURT: The most recent conviction? THE WITNESS: Yes, sir. THE COURT: All right. You were here when the government produced this Professor Summers, were you not? THE WITNESS: Yes, sir. THE COURT: Were you in the room? THE WITNESS: Yes, sir, I was. THE COURT: Do you recall him testifying one day that, and I am paraphrasing it now, that, so you will forgive me, Mr. Dildine, that, it's just not natural, based on his expertise in unions, particularly after the state conviction, for nobody to come out and say, 'he done wrong.' Forgive my English. What is your reaction to that, to someone who is no longer the new kid on the block? THE WITNESS: My reaction, I was asked I think at the very beginning of my testimony yesterday what my educational background was, and compared to Professor Summers, I guess, my formal education is rather in remiss. However, I guess, I have had 55 years at the school of hard knocks, and it's [**45] to -- to try to compare his analyzation from a classroom type of projection, you have to live it, you have to be a part of it. You have to be on the firing line. You have to be up front. You have to deal with these problems on a daily situation. Mr. Anthony Provenzano is a very unique personality. He has a charisma about him that he could relate to those people sitting out there in the meetings, in the meeting rooms. To try to dissect what the professor had to say about it, when you asked him what he thought, in his learned position, would be the remedy, his analyzation, without ever meeting me, without every talking to me, knowing me and my background, my family, or any of the other people that I work with, his immediate response was to remove everybody from office, right now, and appoint a trustee, and through cross examination by Mr. Briguglio, he brought out the fact that he had been offered the job as that trustee by the government. And I am sitting over there, your Honor, and I am a kid from the poor side of the block, and it's for, for me, it's a frightening thing to be confronted, and to be sitting in this seat here as a defendant and be charged with violations of [**46] the Hobbs Act, where I extorted members, and to be in violation of everything that is holy, as far as being a union representative goes. And to be charged by the United States Government in this, it's frightening, and I will tell you something, I have spent many hours on this, and I could probably walk away tomorrow with a small retirement, but I wouldn't do it under these conditions, because I have never, in my past, have done anything to deserve this type of treatment, not from the Government, or anyone else, or the members that I serve. THE COURT: Do you feel it is a vendetta? THE WITNESS: Yes, sir, I do, to the 'nth' degree, I think. I have been associated with the people in my office for some 20 years. THE COURT: Yes, sir. THE WITNESS: And there have been convictions. There have been millions of dollars spent, of taxpayers money. They have, they don't have to answer to anyone for this, to my knowledge. They have unlimited time. We are here today having to defend ourselves, we have to pay for our own counsel fees, and there are those among us, your Honor, that, we are in financially terrible shape. Some of us may have to mortgage our homes in order to pay our legal [**47] fees. But even in the face of that, I can stand here [*297] and I can look at these three gentlemen, eyeball to eyeball. I can look at Mr., what is his name, Dumont, and I can look at you, your Honor, and tell you that I have not, nor have my associates, sitting here today, since we have been in office, violated any law, federal or otherwise. Anybody can sit back and Monday morning quarterback and say, why did you appoint young Josephine or why did you do this. But these were done in good faith, forthright, and whatever, and each one of these things, I have partaken in it, I have participated in it, but I do not bow my head to this court, from any actions that I have taken. Anyone can say, well, look, here was Tony got convicted, Nunzio was convicted, Sal Briguglio was convicted. You brought these people back to work. Why did you do these things? Why was he given a raise in pay? Why was he given a half pension? And all those things, your Honor, if you had the luxury of time, if you could attend one of our meetings, unannounced, and just sit in a corner where they won't know who you were, you would see the response of those members. It's not choreographed. Our people [**48] stand up for what they think they want. We are mandated by their actions. The raise in pay came from them, the half salary came from them, and each one of these items, it was not a frivolous type of action by the executive board or whatever. All these items were checked out legally. We got legal opinions as to whether or not we could do these things. All these pay raises and whatever, or back pay that was owed. It was reported on the tax report, the LM 2's or whatever. This is not a secret, your Honor. These people, they came in here and they try to, they bring in people to testify that I have never met, I don't know anything about them, they don't know anything about me, and yet they would try to sway this court, and you are the judge, and you are the jury and the trier of fact in this, and it will be your opinion, is what will weigh heavy to we as a group, and I say to you, you Honor, that we, as a group, have not indulged as a board, in any kind of violation of our members' rights. Now, I was rather longwinded, but -- THE COURT: It's all right. THE WITNESS: But I feel, your Honor, there are things that you must know. THE COURT: I am interested in this. THE WITNESS: [**49] I feel that -- THE COURT: Tell me about the present President, Salvatore Provenzano. Tell me about him. He is here in the Courtroom? THE WITNESS: Salvatore Provenzano is the President of our Local Union. He is also the President of the Joint Council for it, in the State of New Jersey. He has been the Secretary for the Eastern Conference of Teamsters, whose main office is in Bethesda, Maryland and he is also an International Vice President. THE COURT: Of the International -- THE WITNESS: Of the International. THE COURT: Right. THE WITNESS: And he wears many hats, he has a wide variety of responsibilities. And through the years that Mr. Salvatore Provenzano has been delegated to these authorities, of course, his knowledge, has expended immensely because he has been exposed to many more things on a national level and the conference level than those of us in the local, of course, are not exposed to. He has been on the firing line through negotiations, top level. So all these experiences that he has acquired over the years, he has been there I guess since the early 1960 or 1961, so he has had twenty some years as an officer and he was also a member prior to that as [**50] a driver, and his expertise has come over the so-called road of hard knocks, too. He has earned disappointments. He has earned his way. And those in the higher authority have evidently seen things that his leadership [*298] ability and they have appointed him into those offices, originally as a Vice President, International, and since that time, he has also run in elections and he has been re-elected. So my appraisal of Mr. Provenzano, not because he is sitting here, because over the 20 years we have not always agreed on things. But we argue these things out at board meetings and we come to a conclusion. He has been one that has always, in my, to my knowledge, has requested the members to take a part, an active part. He even tells us in the board meetings, if you got something to say, say it. So my association with him has been, as with Anthony and Nunzio, has been always with a great deal of respect, and I hope that the respect is a two-way street. THE COURT: Is he popular? THE WITNESS: Yes, sir, he is very popular. * * * THE COURT: Okay. Have you observed any political dissidence insofar as his tenure as a union office holder is concerned? THE WITNESS: [**51] No, sir, I think that over the years, of course, when Anthony Provenzano was first taken away from the membership, and then Salvatore, we call him Sam, so I will refer to him as Sam. THE COURT: Sam, I gathered that. I am observing the formalities. THE WITNESS: Sam took over the reins. I think there was a period of time that the members, well, they were, you know -- he was Sammy's -- Tony's brother, but in a very short time, I think that they recognized his ability and his zeal for the job, and as time went on, of course, he went, he was appointed a general organizer, and then from that, of course, he was made an international vice-president, and of course, this gave our local a great deal of recognition to the rest of the Country. He was a part of that recognition, because of his dedication to the job, and I think that Sam probably puts as much energy into this job as, and maybe more, than most international vice-presidents. THE COURT: So what you are telling the Court is he has earned his own spurs? THE WITNESS: Yes, sir, without question, and I don't say it because he is sitting here. I did not get the impression that Mr. Dildine was completely comfortable with the role [**52] he assumed. History teaches us that every so often those that keep their mouths shut, and eyes and ears closed in the face of evil are called to account. In a way his culpability is greater than most others. He really should have known better. By his inaction he facilitated the spread of the disease. As Edmund Burke stated in a letter to William Smith dated January 19, 1795, "the only thing necessary for the triumph of evil is for good men to do nothing." Mr. Dildine spoke glowingly of his father's role in labor's struggles against the Ford Motor Company in the 30's. When he decided to leave his job as a terminal manager in 1963 and accept Tony Provenzano's offer he reflected:
It is difficult to reconcile his professed idealism with the record. SALVATORE SINNO Mr. Sinno is a former racketeer, one of the murderers of Anthony Castellitto, and was the chief witness against Tony Provenzano and others at the murder trial. In this case he also assumed a prominent role in furnishing the court with a graphic account of how it all began. His testimony linking Anthony and Nunzio Provenzano to one of the most notorious crime families in New York, and his recitation of a pattern of intimidation and criminal activity which accompanied the takeover of Local 560 had the stamp of credibility. Sinno, a huge man, seemed right out of central casting. As I listened to his tale, it was obvious that this was the real life version of that cinematic presentation "On the Waterfront." Sam Provenzano in the course of his testimony in exculpating his brother, spoke of various stupid mistakes Tony had made in various criminal entanglements which had landed him in prison. The biggest mistake Tony ever made may have been to initiate Sinno into his criminal fraternity. Sinno's testimony in this case was extremely valuable. [**55] The past is truly prologue. JOSEPH SHERIDAN Shop Steward since 1965, Business Agent since 1972, Trustee since 1978, and Vice President of 560 since 1981. Mr. Sheridan presented a picture of an individual whose family had taken an active role in the union in the pre-Provenzano period and who had inherited the mantle. The other business agents, Mr. Sheridan appeared to me to feel very comfortable with his earnings of $995 per week. He is not a boat rocker. When asked about Nunzio Provenzano he said: A Sir, if you know Mr. Provenzano, Nunzio Provenzano like I know him, and I know him quite a few years, I don't believe those allegations. I know him to be an excellent labor leader for his people, a good family man and a man I would be very proud to recognize in the morning. I don't believe them. Q And if he were eligible to serve tomorrow, you, as trustee and vice-president of the Local, would bring him back tomorrow? A I would be happy to. When asked about Anthony Provenzano he said: A Sir, let me go back. I only served a couple of years with Mr. Anthony Provenzano. I believe he came back in '75 to '78. I was on '72, he wasn't there. So my experience with Anthony [**56] Provenzano is only as a member of Local 560 for that period of time. I know the men idolized him and I can see why they idolized him. He was a man, he come off the trucks the hard way. I don't think that is something, I think I said in my testimony, I said the man has charisma that I wish I had. I don't have it. He is the type of man that can walk in a room with 5,000 hard hats could be in there, and he is well-respected no matter where he goes, because I don't think there is a man in our union, or in the labor [*300] movement, that can say anything against him, about this man. He is a fighter. He fights hard. And I will give you an example like I respect him for. I think he just was incarcerated and he come out for a short time. I think it was a two-week period. Q Which incarceration? A I think, I don't know if it is on the murder one or on the Seatrain. He was out for about -- a couple of weeks. And with all on that man's mind, and any conversation I had with Mr. Provenzano was hello, how are you, and nothing other than that. I am telling this Court today, your Honor, just the way I feel about this man. I am choked up about it, that is the type of guy [**57] he was. He would come down to my desk. He says 'Joey, how are you? I am sorry to hear your wife has cancer.' He says, 'Anything I can do to help you, let me know.' I said, 'I appreciate it, Mr. Provenzano.' He says, 'Hang in there and do the best you can.' That's the type of guy he is, with all that is on his mind, somebody else might not even think of it, but he thought, just a little something like that, that little charisma like that man has. Tomorrow morning, if you let him out of jail he would win the election overwhelmingly, with all the supervision you want to put up, he would walk away with the election. THE COURT: If you felt he murdered Castellitto, would you still feel the same way? THE WITNESS: No, I wouldn't. THE COURT: Why? THE WITNESS: If anyone takes anybody's life, I wouldn't even care if it was an animal, I certainly wouldn't respect him or want any part of him or have anything to do with him. THE COURT: If you felt that he extorted Dorn's, how would you feel about it? THE WITNESS: I certainly wouldn't respect him or admire him. THE COURT: Would you vote for him? THE WITNESS: Excuse me? THE COURT: Would you vote for him? THE WITNESS: I would [**58] have to weigh that one, sir, because if he was convicted in my conscience, he did something wrong like that, no, I don't think I would. THE COURT: What about Nunzio's conviction in 1981, if you felt he was truly guilty? THE WITNESS: If I thought Mr. Nunzio Provenzano was truly guilty of the crime, I know I wouldn't. THE COURT: You know what? THE WITNESS: I would not vote for him. THE COURT: All right. Let me ask you this. Mr. Dildine testified in this courtroom that he felt the government has pursued a vendetta. I think that was the word he used originally, and then I picked up on it, against Local 560. THE WITNESS: Yes. THE COURT: You were in the Courtroom for that? THE WITNESS: Yes. THE COURT: Okay. What does the government have have to do, in your mind, I am talking about Joseph Sheridan's mind, if I may use the shopworn phrase, to put the ball across the line, to convince you that these individuals who Mr. Laufer has been talking about the last few minutes, were guilty of crimes. What -- in other words -- let me back up a moment. Like all of us, I am sure you read the newspapers, right? THE WITNESS: Yes, sir. THE COURT: Every day we pick up the paper, [**59] we read Joe Smith convicted of murder or robbery in some hamlet in the United States; right? THE WITNESS: Yes, your Honor. THE COURT: Okay. You read that article, you don't know Joe Smith, I am assuming that. What reaction do you have, as a normal human being? [*301] THE WITNESS: As reading that in the article, I certainly wouldn't think much of the individual who caused that crime. THE COURT: Do you think the man has had a trial by a jury, right? THE WITNESS: Yes. THE COURT: The jury has deliberated and found him guilty beyond a reasonable doubt. THE WITNESS: Yes, sir. THE COURT: Would it be fair to conclude that, on the basis of what you read, the man is guilty? He has been found guilty; right? THE WITNESS: Yes, sir. THE COURT: All right. Now, all these cases that we have been talking about, with one exception, I think, I mentioned to Mr. Dildine the plea of guilty by Mr. Sal Briguglio, the counterfeiting case, there were verdicts handed down. Why, in your mind, Joseph Sheridan's mind, do you have a different reaction? THE WITNESS: Sir, I guess, like you say, if you read something in the paper and you don't know somebody, you are fast to judge an opinion, [**60] which we all do. I do it myself. THE COURT: Right. THE WITNESS: But I got to tell it to you the way I know it, is that I didn't really know the Provenzanos. I just knew of them being our leaders in the union and I personally, as Joe Sheridan, never really got to know them until I became part of an organization. I can speak for my family, my wife, and I am not just saying that in here, I consider myself a very devout man, a religious man, and I bring my family up this way. I have been in their company on not many occasions. They are respected people in their community. They have lovely children. They brought them up to respect their parents, and I don't see this aura of, you know, what we are talking about, because I am there almost -- I am there 11 years, and I can say that, as God is my judge, all I know these people to be is, no one ever, in the 11 years I am up there, said to me, Joe Sheridan, this is the contract. Your Honor, I believe you asked me the question yesterday, when you said, can you, as Joe Sheridan, make a decision without picking the phone up? I can tell you companies where -- and this is not done in all unions, where if I go out to negotiate a contract [**61] and if I know I got the best that I can, I don't have to go to that phone, sir, and I never have. I will just say, that's the contract. If the people ratify it, I will come in the next day and I will tell whoever the president is at the time, sir, this is our contract. I got this and I got that. That is how I know these people, sir. THE COURT: I understand that. But as a devout individual, and that is the way you have described yourself. THE WITNESS: Yes, sir. THE COURT: Haven't you ever questioned, that is my -- haven't you ever questioned in your own mind, I mean aside from the fact that you are on the payroll, and I am being real up front with you -- * * * THE WITNESS: I am sitting in the courtroom when Mr. Sinno was here, and we are going through testimony, and they are talking about the Mafia, and the 'hit men', and all these here people, your Honor, like I said, unless I am most naive people in the world, I am up there 11 years, I never met that type of individual, I never come in contact with them, and I don't know these people to be anything but good labor leaders, and responsible family men. I will go to my grave saying that. They are good fighting people [**62] for the people they represent. Sure, the things that went on in the past, you can say quarterbacking on a Monday morning, maybe this or that should have been done, but they try, even to the membership, Sam said to me, he says, we have the contract for the Meadowlands, he said Joey, do you think you can get the Brendan Bryne Arena, [*302] he says, I got to try something and see if we can't get this membership out. * * * THE WITNESS: Your Honor, you know the hardest thing I think you have to fight, being a member of our Local, you can be invited out for a party, has nothing to do with unions or any union officials there, and it has happened to me quite a lot. The conversation, what do you do for a living. Business agent for 560. Oh, boy. You know, it is that type of stuff where, I think the papers have done a job, and it is a household word, as far as, you know, I think everyone thinks that this is a racketeer local, and it is a dominated local. Joseph Sheridan: decent, devout, blind and bought. MICHAEL SCIARRA Michael Sciarra has been a member of Local 560 since the mid-1950's. He was appointed a business agent in July of 1972, and held that position until 1976. He [**63] was reappointed in 1977. He became a trustee of the union in 1981. Mr. Sciarra, in very emotional terms, spoke of his love for the union and its members and their love for him. During the course of his testimony, he stressed his devotion to his duties and his desire to do everything which would benefit the membership. Yet, the government was able to demonstrate that his "love" did not cause him to vigorously police Canny Trucking Company, where his good friend Fred Furino was funneling in non-union drivers for Canny's operation. The situation allegedly came to light only after Mr. Furino was found murdered. Mr. Sciarra testified that he was shocked when he learned of it. As noted elsewhere in this opinion, I am persuaded that his explanations concerning this whole affair were lame. His love affair with the Provenzanos is more passionate. On that score the record is clear. He was asked:
He was further asked by me: It is perfectly understandable why Mr. Sciarra supported the motions to vote Mr. Anthony Provenzano a salary increase and a half pension. Mr. [**67] Sciarra is an excellent example of how the Provenzano Group has been able to survive and dominate Local 560. II. Continuously between approximately the late 1940's and the present, Anthony Provenzano has been the leader of a group of individuals who have been associated together in fact as an enterprise within the meaning of 18 U.S.C. § 1961(4), the activities of which have affected interstate commerce. n14 This group of individuals, [*304] the "Provenzano Group", has included (in addition to Anthony Provenzano), Nunzio Provenzano, Stephen Andretta, Thomas Andretta, Gabriel Briguglio, Andrew Reynolds, Salvatore Briguglio (until his murder in 1968), Salvatore Sinno (until his defection in 1961), Harold "K. O." Koningsberg (until his incarceration in the mid-1960's), Armand Faugno (until his "disappearance" in 1972), Ralph Michael Picardo (until his defection in 1975), Ralph Pellecchia (until his imprisonment), and Frederick Salvatore Furino (until his murder in 1982). The evidence adduced at trial clearly demonstrates that these individuals conspired to and actually did conduct the affairs of the Provenzano Group Enterprise through a pattern of racketeering activity, in violation [**68] of 18 U.S.C. § 1962(c) and (d), involving murder and labor racketeering offenses on a protracted and continuing basis so as to enrich themselves and perpetuate the existence of their criminal association. The evidence further demonstrates that the Provenzano Group has maintained an ongoing organizational structure in the form of a hierarchy and protocol, which has controlled the affairs and conduct of the Provenzano Group's associates during approximately the past thirty-five years. Finally, it has also been conclusively demonstrated that the Provenzano Group has had an existence separate and apart from simply the pattern of activity in which it has engaged. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 The defendants' assertion that the characterization of the Provenzano Group as an enterprise represents an unfair and prejudicial "last minute" altering of the government's theory of the case is without merit. I find that paragraph 12 of the complaint gave adequate notice to defendants as to this allegation. A mere recharacterization of facts and claims which had been previously fully alleged in the complaint, to harmonize them with changing caselaw, see United States v. Riccobene, 709 F.2d 214 (3d Cir. 1983), cannot be considered prejudicial. It is, as Judge Wood has stated, "a basic principle of the Federal Rules of Civil Procedure that a litigant is not bound by the selection of a particular theory of relief." Lance, Inc. v. Ginsburg, 210 F. Supp. 272, 274 (E.D. Pa. 1962). Moreover, this theory was fully tried by the government with the implied consent of the defendants. The court may accordingly base its decision on this theory and may deem the pleadings amended accordingly. MBI Motor Company, Inc. v. Lotus/East, Inc., 506 F.2d 709 (6th Cir. 1974); Smith v. Ellerman Lines, Ltd., 247 F.2d 761, 766 (3d Cir. 1957). I further note that the government has elected not to press the averments regarding the recovery of salary increases (paragraph 12-a-23 of the complaint), the averments regarding Marvin Zalk (paragraph 12-a-24) and those regarding Ralph Torraco (paragraph 12-a-25) in view of testimony that there was reliance upon advice of counsel. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**69] A. Sometime during the late 1940's, Anthony Provenzano invited Salvatore Sinno to become associated with him and others in a criminal organization, the Provenzano Group herein. Sinno accepted this invitation. From this association, Sinno learned that the Provenzano Group, operated as an organized racketeering enterprise, and, through its leader, was a faction of a larger New York-based criminal organization. This larger organization was at that time headed by Mike Miranda, who was serving as "acting boss" while its former head Vito Genovese was imprisoned. Prior thereto the organization was led by an individual whom Sinno identified as "Lucky" Luciano. The larger criminal organization of which the Provenzano Group was a faction had a settled hierarchy. The positions which constituted this hierarchy were "boss", "underboss", "captains", and "soldiers", which were also known as "made members" or "button men". Anthony Provenzano was a part of this hierarchy and held the position of "made member" within the larger organization. Others who held such positions during Sinno's period of association with the Provenzano Group included Toby D'Amico, Mike Sabella, Earl Collucio, Tony [**70] Salerno, Peter LaPlaca, Bobby Manna, Gyp DeCarlo, Nick Perry, Pete DiFeo and Jerry Catena (the latter four of whom were "captains"). The associates or members of this larger criminal organization were then permitted by its protocol to engage in a variety of criminal activities, such as gambling, extortion, trafficking in stolen property and the corruption of law enforcement authorities to ignore criminal violations, but were prohibited from involvement in narcotics, prostitution and counterfeiting. Pursuant to the directions of Anthony Provenzano, and apparently in accordance with the larger organization's protocol, Sinno and others participated in the commission of a number of criminal offenses indicative of the relationship between the larger criminal organization and the Provenzano Group. One such criminal offense was the operation by Sinno and others of an illegal monte card game in New York City over a period of several years, from which the larger organization received a "tribute" payment of three percent for having allowed the game to operate. An illegal monte card game was also operated in Hoboken over a period of time which involved the payment of [*305] money to [**71] law enforcement authorities for "protection." Jersey City was the situs for the operation of an illegal dice game over a several year period prior to 1961, another criminal offense. Anthony Provenzano provided Sinno with $5,000 in operating capital for the Jersey City game in exchange for a ten percent share in the profits. n15 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 Anthony Provenzano also caused an employer to place Salvatore Sinno's name on its payroll so that Sinno's tax records would reflect a legitimate source for his income from the various gambling activities seemingly undertaken at Anthony Provenzano's behest. This provides another example of an act consistent with and reinforcing of the organizational structure of the enterprise and which promoted both organizational and individual well-being. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In September of 1961, Salvatore Sinno disassociated himself from the Provenzano Group. At that time, Nunzio Provenzano was an associate of the Provenzano Group and, like Sinno, had been proposed for full membership in the larger criminal organization. [**72] Nunzio Provenzano's involvement in both organizations is highlighted by his presence at the "drop" where, by prearrangement, Sinno "gave up" his truck to be "hijacked." Following the period described by Salvatore Sinno, the Provenzano Group continued to exist as a racketeering enterprise, notwithstanding the incarceration of Anthony Provenzano between approximately the mid-1960's and 1970 and the incarceration of Nunzio Provenzano (as well as Salvatore Briguglio) between approximately 1966 and 1969. First, I find that between approximately 1969 and 1977, Anthony Provenzano, Gabriel Briguglio, Stephen Andretta and Thomas Andretta unlawfully conspired to and did conduct the affairs of an enterprise (the Provenzano Group) through a pattern of racketeering activity, consisting of multiple violations of the Taft-Hartley Act, 29 U.S.C. § 186, and involving both Local 560 and several carriers for Seatrain Lines. Further, between approximately 1971 and 1980, Nunzio Provenzano and others conspired to and did conduct the affairs of an enterprise through a pattern of racketeering activity, again consisting of multiple violations of the Taft-Hartley Act, and involving four interstate carriers. [**73] The continued vitality and viability of the Provenzano Group is further demonstrated by a number of pieces of inferential evidence which, taken together, lend cumulative support to this proposition. First, at a deposition on August 17, 1982, Andrew Reynolds, a Business Agent for Local 560, invoked his Fifth Amendment privilege and refused to answer when asked whether he knew Bobby Manna, and whether he had met with Nunzio Provenzano and Bobby Manna at the Fountain Restaurant and Cafe, located at the corner of Houston and Sullivan Streets in New York City. This meeting, which had lasted for approximately one hour on July 15, 1980, had been observed by the F.B.I. During Sinno's time, Bobby Manna had been a member of the Genovese-led larger criminal organization, and had been a partner of Anthony Provenzano and Salvatore Sinno in the Jersey City dice game. Bobby Manna had also been held in contempt on July 19, 1971 for refusing to answer questions concerning organized crime and racketeering. In re Manna, 124 N.J.Super. 428, 307 A.2d 619 (App.Div. 1973). n16 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 While I may have inadvertently excluded this opinion from evidence, I may, of course, take judicial notice of it. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**74] During the August 17, 1982 deposition, Andrew Reynolds also invoked his Fifth Amendment privilege in refusing to answer when asked whether he knew Matthew Ianniello, whether Reynolds reported to Ianniello concerning his activities as an employee of Local 560, whether Ianniello and the "Genovese Family" control Local 560 through Reynolds and others, and whether he had met with Nunzio Provenzano and Ianniello on Mulberry Street on July 29, 1980. The three had been observed together by the F.B.I. Matthew Ianniello is reputed to be a "captain" in the "Genovese Family" and has been identified as a friend of Anthony Provenzano as well as an acquaintance [*306] of Salvatore and Josephine Provenzano and Robert Luizzi. Additionally, Salvatore Provenzano had testified at a deposition on July 29, 1982, and in his testimony at trial that he knew Matthew Ianniello through Anthony Provenzano and considered Ianniello to be a friend of Anthony Provenzano. Andrew Reynolds further invoked his Fifth Amendment privilege in refusing to answer whether he knew Funzi (Frank) Tieri. Salvatore Provenzano testified at his deposition that Frank Tieri is reputed to be a significant organized crime figure. [**75] One of his connections to Local 560 and the Provenzano Group is through Vincent Passaro, who has been a Local 560 Business Agent for Local 84. Vincent Passaro is, according to Thomas Reynolds, reputed to be the "son" of Frank Tieri. This invocation of the Fifth Amendment privilege by Andrew Reynolds -- who was appointed to the position of Business Agent within Local 560 by Nunzio Provenzano and retained in that position by Salvatore Provenzano -- is admissible in a civil trial against both him and his coconspirators under Rule 601(d)(2)(E) of the Federal Rules of Evidence, as well as the Executive Board of Local 560. In these circumstances I draw an adverse inference from his silence. n17 See Baxter v. Palmigiano, 425 U.S. 308, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976). Specifically, I find that had he responded truthfully to those questions, his answers would be incriminatory. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 I note that Andrew Reynolds no longer holds the position of Business Agent. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - B. During the past thirty years, Anthony Provenzano [**76] and other members of the Provenzano Group have engaged in a pattern of criminal and other improper acts, the object of which was to gain control over and to exploit the Local 560 Enterprise. First, between approximately January 1, 1952 and June 1, 1959, within the District of New Jersey and elsewhere, Anthony Provenzano, while an official of Local 560, extorted "labor peace" payoffs from Walter Dorn and his company, Dorn Transport, Inc. of Rensselaer, New York. During this period, Anthony Provenzano held the positions of Business Agent, and later, of President, and obtained a total of $17,100 from Dorn. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 This pattern was to some extent repeated when, between November 30 and December 12, 1961, Salvatore Briguglio and Nunzio Provenzano attempted to extort labor peace payments (attempted grand larceny) in the Braun Payoff Demand case, discussed infra. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Next, at the time of his nomination and appointment as a Business Agent for Local 560, Anthony Provenzano directed Salvatore Sinno and Earl Coluccio to [**77] attend the membership meeting in question in order to intimidate and if necessary discipline any "rambunctious people" -- meaning those members who might presume to voice opposition to his appointment. Similar tactics were employed by the Group in preparation for Local 560's January 10, 1960 election, which was hotly contested. As one such step, Anthony Provenzano directed Nunzio Provenzano, Thomas Reynolds and Robert Luizzi to "sign up" ineligible members in order to increase the Group's voting strength. Salvatore Sinno, at Anthony Provenzano's behest, persuaded some six of his friends to vote for the Provenzano slate in that election, although each of them was, in fact, ineligible to so vote. Salvatore Sinno himself was able to (and did) vote in the 1960 election because Anthony Provenzano had brought Sinno's membership "book" up to date by falsifying entries to show that Sinno was a member of Local 560 in good standing. Third, in order to enhance his own power and that of the Provenzano Group within Local 560, and apparently to punish what he regarded as a breach of the Group's protocol, Anthony Provenzano recruited Harold "K. O." Konigsberg and Salvatore Briguglio to kill [**78] Anthony Castellitto -- which they, together with Salvatore Sinno and others, did on June 6, 1961. Prior to his "disappearance," Anthony Castellitto was one of the most popular members of [*307] Local 560. He had been, for example, the only candidate to run unopposed in Local 560's 1960 election. Anthony Provenzano considered Anthony Castellitto to be a serious threat to his control over Local 560 and felt that Anthony Castellitto might be assisting the opposition party within Local 560. n19 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 Anthony Provenzano also expressed the belief that Castellitto had informed on him to law enforcement authorities regarding the "labor peace" extortion of Dorn Transport. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - To carry out Anthony Provenzano's directive, Harold "K. O." Konigsberg enlisted Salvatore Sinno and others sometime shortly before June 6, 1961 to assist him with the planned murder. n20 On June 6, 1961, in Ulster County, New York, Konigsberg, Sinno, Salvatore Briguglio and others killed Anthony Castellitto by striking him on the head with a blunt [**79] object and strangling him about the neck with a cord. Thereafter, Anthony Provenzano rewarded Konigsberg for his part in the Castellitto murder by paying him the sum of $15,000. Anthony Provenzano rewarded Salvatore Briguglio for his part in the Castellitto murder by making him a Business Agent in Local 560. - - - - - - - - - - - - - - |