In the Matter of Rocco J. Napoli and Thomas J. Fallacara

 

Laborers’ International Union of North America

Independent Hearing Officer

 

Docket No. 96-65D

Decided September 25,1997

Order and Memorandum

Procedural History

This matter comes before the Laborers’ International Union of North America (“LIUNA”) Independent Hearing Officer (“IHO”) pursuant to the LIUNA Constitution and the Ethics and Disciplinary Procedure (“EDP”).  The Rules of Procedure For Arbitrations Involving Disciplinary Matters Before the LIUNA Independent Hearing Officer (“IHO Rules”) apply.

On July 11, 1996, Disciplinary Charges were filed by the LIUNA General Executive Board Attorney (“GEB Attorney”) against Rocco J. Napoli (“Napoli”) and Thomas J. Fallacara (“Fallacara”).  The Disciplinary Charges allege violations of federal law and the LIUNA EDP.  Because of the similarity of the Disciplinary Charges against both Napoli and Fallacara and the common facts supporting the charges against both individuals, the matters against both respondents were consolidated and a joint hearing was conducted on December 2, 1996 (“Tr. I”), and April 14, 1997 (“Tr. II”).  At the hearing, the Disciplinary Charges were amended, to correct non-material facts.

Napoli did not appear at the hearing and presented no evidence.  Fallacara appeared and was represented by counsel.  All parties were provided an opportunity to file post-hearing submissions.  

Based upon the hearing and the submissions of the GEB Attorney and Fallacara, the IHO finds that the GEB Attorney sustained his burden of proof by a preponderance of the evidence as to all charges against Napoli and Fallacara.

Findings Regarding the La Cosa Nostra (“LCN”)

The charges in this matter involve allegations that the charged parties associated with organized crime figures.  In order to evaluate the individual allegations, I make the following findings:

1.        The Racketeer Influenced and Corrupt Organizations (“RICO”) provisions of the Organized Crime Control Act of 1970 empowers federal prosecutors to bring criminal prosecutions and civil suits against organized crime syndicates.  See 18 U.S.C. § 1961 et seq.


2.        Congress’ principal aim in enacting the RICO statute in 1970 was to prevent the infiltration of organized crime into legitimate business.  United States v. Turkette, 452 U.S. 576 (1981).

3.        La Cosa Nostra (“LCN”), sometimes referred to as the “Mob” or the “Mafia”, is a tightly structured criminal organization which operates in various cities throughout the United States.  It is in the business of crime for a profit.

4.        The LCN of today had its origins in secret societies formed in Sicily and Southern Italy in the late 19th century.  See Symposium - Perspectives on Organized Crime, 16 Rutgers L.J. 439 (1985) (“Symposium”).  Secret societies emerged in the United States toward the end of the 19th century. Id. at 440.  These societies were the antecedents of the present La Cosa Nostra. Id. at 441.

5.        In the late 1920's, one criminal group attempted to form an alliance of all the groups involved in boot legging. See Symposium at 441 (citing D. Cressey, Theft of the Nation: The Structure and Operations of Organized Crime in America 9 (1969)).  A power struggle erupted between Sicilian and non-Sicilian groups.  The struggle led to a violent private vendetta known as the Castellammarese War in New York in 1931.  Symposium at p. 441.

6.        The war began in April 1931, and lasted until September 1931.  During September 1931, in a three day period, forty Italian or Sicilian organized crime leaders were murdered.  Symposium at 442.  The structure of the Italian/Sicilian organized crime organization in the United States today was created by a peace treaty ending the Castellammarese War.  The resulting confederation became known as the La Cosa Nostra.  Symposium at 442.

7.        The LCN is comprised of groups of persons organized into entities called families.

8.        A number of such families are located in the New York area, including the Genovese family. 

9.        The hierarchy of the leadership of each LCN family consists of the head (the “boss”), his assistant (the “underboss”), and an advisor (the “consigliere”).  The boss, underboss, and consigliere oversee the activities of the LCN members and their associates.

10.     LCN members within the family operate in small groups or cells called “crews” which are headed by men called “capos” or “crew bosses.”

11.     Persons who are not members of an LCN family, but who participate in, cooperate with, or facilitate the LCN’s activities, are referred to as “associates.”   Associates are of two types: criminals who are taken into the fold, by the members,  Tr. I 27-28, and persons who work at legitimate businesses, but perform tasks, or provide services, or assist members in their illegal activities.  Id. at 28.

12.     To become a true LCN member, an individual must be accepted and inducted into the Family.  Induction into the LCN is referred to as “getting made”, becoming “one of the boys”, or “being reborn.”  Members also refer to a newly made members, as “he is with us.”  To be inducted, a member must undergo a formal initiation ceremony, followed by all of the La Cosa Nostra families, in which the proposed member swears his allegiance to the crime family.  Tr. I 27.

13.     The initiation process and structure of the LCN was described in detail by an LCN associate in testimony cited in United States v. Pungitore, 910 F.2d 1084, 1097-97 (3d Cir.), cert. denied, 500 U.S. 915 (1990).

14.     As part of its criminal conduct, the LCN has infiltrated and controls numerous business organizations and labor unions.  In these ventures “…it employs illegitimate methods - monopolization, terrorism, extortion, tax evasion - to drive out or control lawful ownership and leadership and to exact illegal profits from the public.”  See President’s Commission on Law Enforcement and Administration of Justice -Task Force Report: Organized Crime at 187 (1967);  see also Blakey & Goldstock, “On the Waterfront”: RICO and Labor Racketeering, 17 Am. Crim. L. Rev. 341 (1980).

15.     The Department of Justice has embarked on a concentrated effort to rid the labor movement of organized crime.  The Department of Justice prosecutors have filed numerous civil RICO complaints against International and local labor unions. See, e.g., United States v. Hotel Employees and Restaurant Employees International Union, Civ. No. 95-4596 (D.N.J.); United States v. International Brotherhood of Teamsters, 88 Civ. 4486 (S.D.N.Y.).

16.     These foregoing suits resulted in consent decrees with the appointment of independent monitors who have the power to hear disciplinary charges against union members for misconduct, including associating with members of organized crime.  See e.g., United States v. Hotel Employees and Restaurant Employees International Union (Agathos), (D.N.J.) Civ. No.  95-4596 (GEB) Memorandum Opinion (May 8, 1997).

17.     LIUNA has entered into an agreement with the Department of Justice to engage in a voluntary process of self-policing and internal reform outside of the court system which is designed  “to ensure that all locals and other entities within LIUNA are rid of any corrupting influence of any member of organized crime.”  See LIUNA-United States Department of Justice Agreement, February 13, 1995.

18.     To effect this reform, LIUNA adopted an Ethics and Disciplinary Procedure (“EDP”) on January 18, 1995, which prohibits all current and future LIUNA officers, agents, representatives, employees, and members from engaging in “barred conduct.”  Barred conduct is defined to include committing any act of racketeering,  “knowingly associating” with members of an organized crime family such as the LCN, knowingly allowing an LCN member or associate to influence a LIUNA officer, and interfering with or obstructing the efforts of the LIUNA Inspector General, the GEB Attorney or the IHO. See EDP Section 1.  Racketeering is the commission of any predicate crime set out in 18 U.S.C. Section 1961(1) which also are listed in Appendix A of the EDP.  Barred conduct is also prohibited under the LIUNA Ethics Practices Code. See EDP Section 1.

19.     Under the EDP, the term “knowingly associate” means that the union member knew that the person with whom he/she was associating was a member or associate of the LCN; the association related directly or indirectly to the affairs of the union; and the association was more than fleeting or casual.

20.     The requirement that the association be directly or indirectly related to the affairs of the union will be liberally construed by the IHO to effect the purpose of the EDP.  It is apparent from the agreement between LIUNA and the Department of Justice and the text of the EDP and the EPC that the major aim of the reform process is to rid the union of the influence of organized crime.  It follows that the drafters of the agreement would not expect that the reform effort will be subjected to unduly restrictive definitions, so as to thwart the plain purpose of the initiative. The phrase directly and indirectly related to the affairs of the union will be construed to encompass any reasonable relationship to the affairs of the union, its members, or its officers.  The relationship to the affairs of the union need not on its face affect the operation of the union; it need only reflect that the “knowing association” permits the undesirable individuals to have easy access to the union officers and members in the total atmosphere of the labor union operation.

21.     The EDP also requires that the GEB Attorney also demonstrate that the charged parties’ association was “more than fleeting or casual.”  Id. See, e.g., United States v. International Bhd. of Teamsters, 824 F. Supp. 410, 414 (S.D.N.Y. 1993); United States v. International Bhd. of Teamsters, 745 F. Supp. 908, 909 (S.D.N.Y. 1990) (contact that was “knowing, purposeful and not fleeting” was enough to constitute “knowing association”), aff’d, 941 F.2d 1292 (2d Cir. 1991), cert. denied, 502 U.S. 1091 (1992).

22.     To establish knowing association, the GEB Attorney must first prove that the charged party knew that the person with whom he or she was associating was a member or associate of the LCN.  See EDP § 1.

23.     Policy and court decisions generally inform that “knowledge” can be established in three ways: (a) the individual had actual knowledge that the person with whom he was associating was an LCN member; (b) the individual reasonably should have known that the person with whom he was associating was an LCN member; and (c) the individual deliberately remained ignorant of facts that would demonstrate that the person with whom he was associating was an LCN member.

24.     In applying the actual knowledge standard set forth above, actual knowledge may be established “by reference to facts and circumstances surrounding the case that [the charged party] knew that his conduct was unauthorized or illegal.”  See, e.g., Liparota v. United States, 471 U.S. 419, 434 (1985).  “The trier of fact must infer knowledge and intent by considering the facts and circumstances, including the individual’s acts and words, and then draw rational inferences from those facts and circumstances.”  United States v. International Bhd. of Teamsters, 764 F. Supp. 797, 801-02 (S.D.N.Y. 1991), aff’d without opinion, 956 F.2d 1161 (2d Cir. 1992). “[K]nowledge [also] may be inferred from the duration and quality of the association.”  Id.

25.     The second method of establishing knowledge is where the charged party reasonably should have known that they were associating with a member or associate of the LCN.  “In the absence of direct evidence of knowledge of the organized crime ties of an associate, . . . such knowledge may be inferred from the duration and quality of the association.”  See, e.g., Investigations Officer v. Senese, Decision of the Independent Administrator (July 12, 1990) at 37, aff’d, United States v. Teamsters (Senese and Talerico), 745 F. Supp. 908 (S.D.N.Y. 1990), aff’d, 941 F.2d 1292 (2d Cir. 1991), cert. denied, 502 U.S. 1091 (1992).  Facts which establish constructive knowledge, situations where charged parties objectively knew or should have known of organized crime ties, are sufficient to establish violations of the EDP.

26.     Finally, a LIUNA member may not deliberately remain ignorant of facts that demonstrate that the person with whom they are associating is an LCN member.  Deliberate or intentional ignorance is the legal equivalent of knowledge.  See, e.g., United States v. Antzoulatos, 962 F.2d 720, 724 (7th Cir.), cert. denied, 506 U.S. 919 (1992); United States v. Jewell, 532 F.2d 697, 700 (9th Cir.), cert. denied, 426 U.S. 951 (1976).  Knowledge is established where a person, “recognizing the likelihood of wrongdoing, nonetheless consciously refuse[s] to take basic investigatory steps.”  United States v. St. Michael’s Credit Union, 880 F.2d 579, 585 (1st Cir. 1989).

27.     The LIUNA EDP incorporates by reference certain exceptions to the definition “knowingly associate” as they appear and are defined in the Consent Decree entered in United States v. District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America, 90 Civ. 5722 (“Carpenters’ Consent Decree”). See EDP § 1.

Findings of Fact and Conclusions Regarding Rocco J. Napoli

CHARGE I

That through in or about 1980 through on or about June 28, 1988, Rocco J. Napoli a/k/a “Rocky” Napoli, while a member of LIUNA Local 21 (Newark) committed “barred conduct” in violation of the LIUNA Ethics and Disciplinary Procedures by committing acts of racketeering as follows: conducting an illegal gambling business (18 U.S.C. § 1955); extortion (18 U.S.C. § 1951); accepting labor payoffs from employers while being a union official (29 U.S.C. § 186(b)(1)(2)); and RICO conspiracy (18 U.S.C. § 1962(d)) and RICO (18 U.S.C. § 1962(c)), involving murder, extortion, labor payoffs, trafficking in stolen property and gambling.  On or about September 26, 1989, Napoli was sentenced upon conviction of these racketeering charges.

Findings of Fact

1.        Charge I alleges that Rocco Napoli (“Napoli”) committed barred conduct by committing the following acts of racketeering from 1980 through 1988: (a) conducting an illegal gambling enterprise (18 U.S.C. § 1955); (b) extortion (18 U.S.C. § 1951); (c) accepting labor payoffs from employers while a union officer (29 U.S.C. § 186(b)(1) and (2)); (d) participating in RICO Conspiracy (18 U.S.C. § 962 (d)); and (e) committing RICO acts involving murder, extortion, labor payoffs, trafficking in stolen property and gambling  (18 U.S.C. § 1962 (c)).

2.        Napoli was the Business Manager of LIUNA Local Union 21 throughout the relevant periods alleged in the criminal and disciplinary charges lodged against him as discussed in this order.

3.        Napoli was indicted in United States v. Rocco Napoli, et al., Crim. No. 88-239 (MTB)  (D.N.J.).  See GEB Exhibit 1 (Indictment), attached hereto as Appendix “A”.

4.        At his federal trial, Napoli was convicted of Counts 1, 2, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 26 of the Indictment.  See GEB Exhibit 3 (Judgment Including Sentence Under the Sentencing Reform Act).

5.        Napoli was convicted of various offenses including: (a) conducting an illegal gambling business in violation of 18 U.S.C. § 1955; (b) extortion in violation of 18 U.S.C. § 1951; (c) accepting labor payoffs while a union official in violation of 29 U.S.C. § 186(b)(1)(2); (d) participating in a RICO conspiracy in violation of 18 U.S.C. § 1962(d); and (e) committing RICO acts in violation of 18 U.S.C. § 1962(c) involving murder, extortion, labor payoffs, trafficking in stolen property, and gambling. Id.

6.        The Third Circuit Court of Appeals affirmed Napoli’s convictions.  See United States v. Manna, et al., 919 F.2d 733 (3d Cir.1990).  The United States Supreme Court denied certiorari for Napoli’s petition.  See Napoli v. United States, 499 U.S. 953 (1991).

Conclusions

1.        Napoli was indicted and convicted of acts which constitute barred conduct.  See GEB Exhibits 1 (Indictment) and 3 (Judgement Including Sentence Under the Sentencing Reform Act).

2.        As a matter of law, Napoli is estopped from challenging the underlying truth of the allegation that he committed the offenses.  See, e.g., United States v. International Bhd. of Teamsters, 777 F. Supp. 1133 (S.D.N.Y. 1991); United States v. International Bhd. Of Teamsters, 725 F. Supp. 162 (S.D.N.Y. 1989).

Decision

The federal convictions for the above listed counts of the federal Indictment are identical to the allegations of barred conduct in Charge I of the GEB Attorney’s Disciplinary Charges, and conclusively prove that Napoli committed the barred conduct as alleged in Charge I  of the Disciplinary Charges.

CHARGE II

That from in or about 1980 through on or about June 28, 1988, Rocco J. Napoli a/k/a “Rocky” Napoli, while a member of LIUNA Local 21 (Newark) committed “barred conduct” in violation of the LIUNA Ethics and Disciplinary Procedures by having knowingly associated with La Cosa Nostra crime family members: Louis Anthony “Bobby” Manna, the consigliere and leader of the New Jersey faction of the Genovese crime family; Martin Anthony “Motts” Casella, an associate of the Manna faction of the Genovese crime family and “Bobby” Manna’s principal assistant; Richard “Bocci” Desciscio, an associate of the Manna faction of the Genovese crime family; James “Jimmy Nap” Napoli, an associate of the Manna faction of the Genovese crime family and the father of Rocco “Rocky” Napoli; James Derrico, an associate of the Manna faction of the Genovese crime family, and Patsy “Fingers” Riccio, an associate of the Manna faction of the Genovese crime family; Orlando “Riche” Cusimano, an associate of the Manna faction of the Genovese crime family; Thomas “Trolly Car” Fallacara, an associate of the Manna faction of the Genovese crime family and Frank “Dipsey” Daniello, an associate of the Manna faction of the Genovese crime family.  On or about September 29, 1989, Napoli was sentenced upon conviction for his knowing criminal associat[ions] with the named La Cosa Nostra crime family members.

Findings of Fact

1.        Napoli was convicted of Count I of the federal Indictment.

2.        That Count alleged that Napoli knowingly associated with the individuals listed in Charge II of this matter while assisting in operating a faction of the Genovese crime family. The allegations of Count I of the federal Indictment are very similar to the allegations of Charge II of this matter.

Conclusions

1.        Napoli’s conviction for participation in the criminal enterprise defined in  Charge I of the Indictment and the other substantive crimes proves that he was an associate of numerous organized crime figures who were part of the Manna faction of the Genovese family.

2.        The purpose of the enterprise charged in Count 1 includes “[e]xercising influence and control over labor unions whose members are employed in the construction industry. These unions included Local 21 of the Laborers['] International Union of North America….” See Appendix “A” p. 13.

3.        Napoli was also convicted of Count 7 of the indictment which alleged that Napoli was an officer of LIUNA Local 21 and other members of the Manna Faction of the Genovese crime family conspired to demand and receive payments of money and other things of value from employers in violation of 29 U.S.C. § 186(b)(1).

4.        These convictions conclusively prove that Napoli associated with members of organized crime, and that the association related directly or indirectly to the affairs of the union. As a matter of law, Napoli is estopped from challenging the underlying truth of the allegation that he committed the offenses.  See, e.g., United States v. International Bhd. of Teamsters, 272 F. Supp. 1133 (S.D.N.Y. 1991); United States v. International Bhd. of Teamsters, 725 F. Supp. 162 (S.D.N.Y. 1989).

Decision

The GEB Attorney has met his burden of proof by a preponderance of the evidence on Charge II.

CHARGE III

That from in or about 1980 through on or about June 28, 1988, Rocco J. Napoli a/k/a “Rocky” Napoli, while a member of LIUNA Local 21 (Newark) committed “barred conduct” in violation of the LIUNA Ethics and Disciplinary Procedures by having been an associate of the Manna faction of the Genovese crime family, and, accordingly, has knowingly associated with members and associates of La Cosa Nostra.  On or about September 29, 1989, Napoli was sentenced upon conviction for his knowing criminal association with members and associates of the Genovese crime family.

Findings of Fact

The barred conduct in Charge III is similar to the barred conduct alleged in Charge II.

Conclusion

For the reasons set forth in the opinion above, the GEB attorney demonstrated by a preponderance of the evidence that Napoli was an associate of the Genovese crime family, and in that capacity, knowingly associated with members and associates of the LCN.

Decision

The GEB Attorney has proved Charge III by a preponderance of the evidence.

Findings of Fact and Conclusions Regarding Thomas J. Fallacara

CHARGE I

That from in or about 1980 through on or about June 28, 1988, Thomas J. Fallacara a/k/a “Trolley Car” Fallacara, while a member of LIUNA Local 21 (Newark) committed “barred conduct” in violation of the LIUNA Ethics and Disciplinary Procedures by committing acts of racketeering as follows: accepting payment from an employer while being a union officer (28 U.S.C. § 186(b)(1) and 18 U.S.C. § 2) and conducting an illegal gambling business (18 U.S.C. § 1955) with known members of organized crime.  On or about December 13, 1989, Fallacara was sentenced upon entry of a plea on these racketeering charges.

Findings of Fact

1.        Thomas Fallacara (“Fallacara”) was a member of the Executive Committee of LIUNA Local Union 21 throughout the relevant periods alleged in the criminal Indictment and the disciplinary charges lodged against him.  Fallacara is currently working at the calling and an active member of LIUNA Local Union 21.

2.        Fallacara was indicted along with Napoli and others in United States v. Manna, et al., Crim. No. 88-239 (MTB) for activity during the same period.  See Appendix “A” attached hereto, GEB Exhibit 1 (Indictment).

3.        Fallacara entered a plea of guilty to Counts 29 and 42 of the Indictment, and on January 3, 1990, Fallacara was sentenced for those offenses.  See GEB Exhibit 2 (Judgment Including Sentence Under the Sentencing Reform Act).

4.        Count 29 of the Indictment charged that Fallacara accepted payoffs from an employer in violation of 29 U.S.C. § 186(b)(1).  At the hearing in this matter, Fallacara admitted receiving over $5,000 from the employer.  Tr. II 10.

5.        Count 2 of the Indictment charged that Fallacara conducted an illegal gambling business in violation of 18 U.S.C. § 1955.

Conclusions

1.        Fallacara was indicted and convicted of acts which constitute barred conduct.  See GEB Exhibits 1 (Indictment) and (Judgment Including Sentence Under the Sentencing Reform Act.)

2.        As a matter of law, Fallacara is estopped from challenging the underlying truth of the allegation that he committed the offenses.  See, e.g., United States v. International Bhd. of Teamsters, 777 F. Supp. 1133 (S.D.N.Y. 1991); United States v. International Bhd. of Teamsters, 725 F. Supp. 162 (S.D.N.Y. 1989).

3.        The EDP prohibits all current and future offices, agents, representatives, employees and members of the union from engaging in “barred conduct.”  “Barred conduct” is defined in Appendix A of the LIUNA EDP to include acts indictable under 29 U.S.C. § 186 (b) and 18 U.S.C. § 1955.

Decision           

The convictions of Counts 29 and 42 of the indictment conclusively prove that Fallacara committed barred conduct as alleged in Charge I of this matter.

CHARGE II

That from in or about 1980 through on or about June 28, 1988, Thomas J. Fallacara a/k/a “Trolly Car” Fallacara, while a member of LIUNA Local 21 (Newark) committed “barred conduct” in violation of the LIUNA Ethics and Disciplinary Procedures by having knowingly associated with La Cosa Nostra crime family members: Louis Anthony “Bobby” Manna, the consigliere and leader of the New Jersey faction of the Genovese crime family; Martin Anthony “Motts” Casella, an associate of the Manna faction of the Genovese crime family and “Bobby” Manna’s principal assistant; Richard “Bocci” Desciscio, an associate of the Manna faction of the Genovese crime family; James “Jimmy Nap” Napoli, an associate of the Manna faction of the Genovese crime family; Rocco “Rocky” J. Napoli, an associate of the Manna faction of the Genovese crime family; James Derrico, an associate of the Manna faction of the Genovese crime family, and Patsey “Fingers” Riccio, an associate of the Manna faction of the Genovese crime family.  On December 13, 1989, Fallacara was sentenced upon the entry of a guilty plea for knowing criminal associations with the named La Cosa Nostra crime family members.

Findings of Fact

1.        Fallacara pled guilty to counts 29 and 42 of the Indictment.

2.        Count 42 alleged that Fallacara associated with at least seven other individuals in operating an illegal gambling operation in violation of 18 U.S.C. § 1955.

3.        The other individuals in Count 42 were also charged as being part of a RICO conspiracy in Count I of the indictment as being members of a faction of the Genovese family, and operating that faction to exercise control over the construction industry and to obtain money through illegal gambling.

4.        Guilty findings were returned against Rocco Napoli, Manna, Capella and Desciscio on Count I.

5.        By pleading guilty to count 29 of the Indictment, Fallacara admitted accepting money from an employer in violation of 29 U.S.C. § 186(b) in concert with Rocco J. Napoli and Joseph Speranza. 

6.        Count 29 alleges that Fallacara, while an officer of LIUNA Local 21, along with Napoli, an officer of Local Union 21, in concert with Joseph Speranza, an employer, accepted unearned wages from an employer.  Both Napoli and Speranza were identified in Count I as members of the Manna Faction of the Genovese family.

7.        The allegations of Count 29 conclusively prove that Fallacara associated with members of the LCN and the association directly related to the affairs of the union.

8.        Count 42 alleges that Fallacara, Manna, Casella, Napoli and others operated an illegal gambling operation out of the Village Coffee Shop located in Jersey City,  New Jersey.  While doing so, Fallacara was also an officer of Local Union 21.

9.        Fallacara had actual knowledge that he was associating with other criminals to collect labor payoffs and conduct an illegal gambling operation.  The Overt Acts in Count Seven of the Indictment outline interaction between Fallacara and Manna, Rocco J. Napoli, and Casella.   Fallacara himself acknowledged that Manna, Casella, Napoli and other LCN figures controlled and/or conducted the gambling operation at the Village Coffee Shop.  Tr. II 34. Taking labor payoffs and accepting illegal bets is not a legitimate union-related activity.

10.     As a result of accepting labor payoffs and operating an illegal gambling enterprise out of the Village Coffee Shop,  Fallacara objectively knew or should have known of Napoli’s and the other participants’ organized crime ties.  Fallacara also concedes that regular telephone conversations between himself and other LCN figures were recorded by law enforcement authorities during his operation of the Village Coffee Shop and produced at trial in United States v. Manna, et al. 

11.     I credit the testimony of Deputy Inspector General Richard Ross (“Ross”) regarding Fallacara’s association with organized crime. I find Ross to be an expert in this area.  See generally Tr. I 22-58.  Ross spent approximately twenty-three years as a Special Agent of the Federal Bureau of Investigation (“FBI”).  Ross spent a significant amount of his career investigating organized crime, and in particular, the Genovese crime family.

12.     Ross testified that Fallacara knowingly associated with Napoli and other LCN figures to conduct the illegal gambling business and to coordinate criminal enterprises in various territories.  Tr. I 37.  Ross testified that Fallacara could not have participated in the gambling operation without knowing that the other persons with whom he was associating were LCN figures.  Tr. I 37-38.  Ross explained that “[i]f you are engaged in this organized crime activity, it is extremely important to know who the players are.”  Tr. I 37.

13.     Fallacara’s testimony at the hearing that he was unaware that the persons he was dealing with were members of the organized crime is unpersuasive. 

Conclusions

1.        The LIUNA EDP prohibits all current and future officers, agents, representatives, employees, and members of the union from engaging in “barred conduct.”  The term “barred conduct”  is defined to include “knowingly associating with any member or associate of the organized crime syndicate known as La Cosa Nostra (LCN….”  See EDP § 1.

2.        Fallacara was indicted and convicted of acts which constitute barred conduct.  See GEB Exhibits 1 (Indictment) and 2 (Judgment Including Sentence Under the Sentencing Reform Act.)  In pleading guilty, Fallacara admitted to associating with other criminals to collect illegal labor payoffs and conducting an illegal gambling operation.

3.        As a matter of law, Fallacara is estopped from challenging the underlying truth of the allegation that he committed the offenses.  See, e.g., United States International Bhd. of Teamsters, 777 F. Supp. 1133 (S.D.N.Y. 1991); United States v. International Bhd. of Teamsters, 725 F. Supp. 162 (S.D.N.Y. 1989).

4.        As found above, Fallacara’s acts affected the affairs of the union.

Decision

The GEB Attorney has proved Charge II by a preponderance of the evidence.

CHARGE III

That from in or about 1980 through on or about June 28, 1988, Thomas J. Fallacara a/k/a “Trolly Car” Fallacara, while a member of LIUNA Local 21 (Newark) committed “barred conduct” in violation of the LIUNA Ethics and Disciplinary Procedures by having been an associate of the Manna faction of the Genovese crime family, and, accordingly, has knowingly associated with members and associates of La Cosa Nostra.  On or about September 29, 1989, Fallacara was sentenced upon entry of a guilty plea for his knowing association with members and associates of the Genovese crime family.

Findings of Fact

The LCN Findings of Fact, Findings of Fact, and Conclusions stated above for Charges I and II are adopted as Findings of Fact for purposes of Charge III as if restated verbatim herein.

Conclusions

1.        Fallacara pled guilty to committing various crimes with persons known to be racketeers and LCN members and associates.  Fallacara also admitted to working at the Village Coffee Shop to conduct an illegal bookmaking operation.  As part of his illegal activities at the Village Coffee Shop, he came into contact with and spoke to numerous other LCN members and associates. Those actions were not part of his legitimate duties as an officer of LIUNA Local 21 or a union laborer.

2.        Deputy Inspector General Ross’ testimony confirmed that Fallacara was an associate in the Manna faction of the Genovese crime family.  See Tr. I 32-39.  Ross’ testimony is based upon reliable information gathered in his experience as FBI Special Agent investigating organized crime and the Genovese crime family, reliable information obtained from other experienced FBI agents, and is corroborated by the consistency with Fallacara’s own statements about his contribution in taking bets and accepting labor payoffs.

3.        Fallacara’s bookmaking activity at the Village Coffee Shop in an operation run by LCN members and associates is related to the affairs of the union.  At the time although Fallacara was a union officer and tending to union business at the union office Fallacara was taking part in a major bookmaking operation. The union job was used as a convenient cover for his illegal activities.

Decision

The GEB Attorney has met his burden by a preponderance of the evidence on Charge III.  Charge II and Charge III are nearly identical, except that Charge III alleges that Fallacara is an associate of the Manna faction of the Genovese family.

Decision

The GEB Attorney sustained his burden of proof by a preponderance of the evidence on all Charges as to both Napoli and Fallacara.

Penalty

Napoli and Fallacara have the right to appeal this Order by filing a Notice of Appeal with the LIUNA Appellate Officer (“AO”) within thirty days of the date of this Order.  This Order does not take effect until thirty days after the date of this Order and, if appealed, upon the decision of the AO.

A.      Napoli

Napoli was convicted of the federal crimes of labor racketeering, kickbacks, extortion and  RICO.  The evidence establishes that Napoli held both an officer position in LIUNA Local Union 21 and the Manna faction of the Genovese crime family.

Napoli’s membership in LIUNA is revoked permanently.

1.     B.       Fallacara

Fallacara’s convictions for accepting payoffs and running a syndicated gambling operation, all with the assistance of LCN members and associates, demonstrates his true livelihood.  Fallacara’s main occupation was serving the LCN and furnishing its needs.

At the hearing in this matter, Fallacara was less than candid in denying that he took bets at the coffee shop, although he entered a plea to that count of the Indictment.

His activities in running the gambling operation is proof that his union position was to give him a legitimate source of income, while he worked outside the law. His union office was merely a vehicle for him to collect payoffs for himself and his LCN cohorts.

Fallacara contends he is now working only as a laborer and is not an officer, and he is not associated with the LCN.  The difficulty with this concept is that Fallacara was allied with hard core LCN members.  To the members of Local 21, he was and is a recognized associate of the LCN, and his membership in LIUNA and his appearance at union meetings will convey the message that the mob is still present at the Local.

The LCN is insidious, and the presence of an LCN associate in union affairs conveys a message that the LCN control continues. Removing the influence of the LCN from a union cannot be compared to voting a political party out of office.  The members and associates, by their presence, carry the message of the mob, without holding union office.  Until such presence is removed, the influence of the LCN will continue.

Fallacara’s membership in LIUNA is revoked permanently.

PETER F. VAIRA

INDEPENDENT HEARING OFFICER