In the Matter of Charles Majuri

 

Laborers’ International Union of North America

Independent Hearing Officer

 

Docket No. 99-02D

 

Decided January 24, 2001

 

Order and Memorandum

 

PROCEDURAL HISTORY

 

This matter comes before the Laborer’s International Union of North America (LIUNA) Independent Hearing Officer (IHO) pursuant to the LIUNA Constitution and the Ethics and Disciplinary Procedure (EDP).

 

On December 24, 1998, disciplinary charges were filed by the LIUNA General Executive Board Attorney (GEB Attorney) against Charles Majuri (Majuri).  The charges allege Majuri committed conduct in violation of the EDP by knowingly associating with members and associates of the La Cosa Nostra (LCN).  A hearing was conducted on April 27, 1999  (April 27 Hearing).  Majuri appeared at the hearing and was represented by counsel.  At the hearing, Inspector Jack Elko (Elko), of the Office of the Inspector General, testified regarding an affidavit he prepared concerning his interviews of three members of the LCN, their knowledge of, and association with Majuri.  All parties were provided an opportunity to file post-hearing submissions.

 

During the hearing, Majuri’s counsel made a motion to examine Elko’s interview notes. The GEB Attorney declined to produce them.  The IHO denied the motion.  On July 14, 1999, the IHO ordered the GEB Attorney to turn over Elko’s interview notes from the LCN members’ interviews to Majuri’s counsel (July 14 Order).  Subsequently, the GEB Attorney filed a Motion for Reconsideration of the Order, citing an agreement between the GEB Attorney and the Department of Justice regarding interview notes of protected witnesses that prevented disclosure to defense counsel.  On November 4, 1999, the IHO rescinded his July 14 Order and ordered the GEB Attorney to produce Elko’s interview notes to the IHO in camera.  Following a review of Elko’s notes, the IHO issued an Order on April 17, 2000.  This Order reopened the hearing to call Majuri for questioning by the IHO[1].  After several delays, a hearing was scheduled for December 13, 2000 (December 13 Hearing).  On December 13, 2000, adverse weather conditions in New Mexico detained the IHO and prevented his attendance at the hearing.  The IHO appointed William J. Murray Jr., a member of the Pennsylvania Bar and an associate in the IHO’s law firm, to act as a Special Hearing Master for the limited purpose of questioning the respondent.  At the December 13 Hearing, the IHO’s Special Hearing Master questioned Majuri concerning his association and relationship with a member of the LCN.  The GEB Attorney also questioned Majuri regarding allegations arising out of an indictment filed against Majuri by the United States Attorney for the Southern District of New York.  Majuri asserted his right under the Fifth Amendment to remain silent in response to every question asked of him.  The IHO will evaluate Majuri’s responses to the Special Hearing Master and to the GEB Attorney on different grounds.

 

FINDINGS OF FACT

 

1.        Majuri is charged with associating with the LCN in violation of the EDP.[2]

 

2.        At the April 27 Hearing, Inspector Elko testified that he interviewed Anthony Accetturo (Accetturo), Thomas Riccardi (Riccardi), and George Fresolone (Fresolone), all admitted LCN members.  Elko reported that Riccardi and Accetturo knew Majuri as a made member of the DeCavalcante crime family of New York and New Jersey.

 

3.        Elko also related the testimony of Fresolone, who is in the federal witness protection program.  Fresolone told Elko that, for over ten years, Fresolone and Patty “Specs” Martorano, the LCN member to whom he reported, met John Riggi Sr. (Riggi Sr.), the head of the DeCavalcante family, for lunch at a restaurant in New Jersey.  Fresolone said that Majuri often attended and took an active part in the meetings.

 

4.        Elko testified that Accetturo said Majuri was the best man at his wedding and is godfather to his son Anthony Accetturo Jr.

 

5.        Elko’s testimony indicated that he interviewed Riccardi, Accetturo and Fresolone together at one time.  He said that each was permitted to comment on or to correct the statements of the others.

 

6.        Due to the lack of formal restraints during the interview, the IHO expressed reluctance to accept this hearsay without further corroborative evidence.

 

7.        After the hearing, the IHO made an in camera examination of Elko’s interview notes of the three individuals.

 

8.        At the December 13 Hearing the Special Hearing Master called Majuri to testify.  Majuri was asked the following questions:

 

-          Mr. Majuri, do you know Mr. Anthony Accetturo?

-       How long have you known Mr. Accetturo?

-          Did you serve as the best man in Mr. Accetturo’s wedding?

-          Mr. Majuri, are you the godfather of Mr. Anthony Accetturo Jr.?

 

9.        Majuri refused to answer any of the foregoing questions based on his Fifth Amendment right to remain silent.

 

10.     The IHO may draw an adverse inference from Majuri’s refusal to answer questions material to these charges.  See, e.g., Baxter vs. Palmigiano, 425 US 308, 316 (1976)(assertion of Fifth Amendment in response to questions in a civil case can result in adverse evidentiary inference against the person asserting the privilege); Mitchell v. United States, 526 US 314, 328 (1999); Duratron Corp. v. Republic Stuyvesant Corp., 231 A.2d 854, 856 (NJ Sup.Ct. 1967)(rule permits adverse inference where party refuses to testify in a civil case as to matters in issue within his personal knowledge).  When a party has relevant evidence within his control that he fails to produce or to reveal, the failure gives rise to an inference that the evidence is unfavorable to the party.  See Park Inns International, Inc. v. Pacific Plaza Hotels, Inc., 5 F.Supp. 2d 762 (D. Ariz. 1998).  Based upon the questions asked by the Special Hearing Master and Majuri’s responses, the IHO may infer that there was a close relationship between Accetturo and Majuri.  The IHO may further infer that the relationship was not fleeting or casual.

 

11.     The IHO finds that major organized crime families in the LCN do not permit outsiders and strangers into their business or social functions.

 

12.     The IHO finds that Accetturo is the former boss of the Lucchese LCN family in New Jersey.

 

13.     The IHO finds that Majuri was the best man at the wedding of Accetturo and also is the godfather of Anthony Accetturo Jr.

 

14.     A person does not become the best man at the wedding of a member of the LCN or act as the godfather to his son unless that person is a very close and trusted associate.  These associations do not materialize in a brief instant, but are the product of a sustained and trusted relationship.

15.     The IHO finds that Riggi Sr. was at one time the head of the DeCavalcante family in New Jersey.  The IHO further finds that Majuri regularly associated with Riggi Sr. regarding DeCavalcante business.

 

16.     After considering the testimony of Elko; the in camera review of Elko’s notes of the interview reports of Riccardi, Accetturo, and Fresolone; and the inferences permitted from the answers given by Majuri at the December 13 Hearing; the IHO finds that Majuri is an associate of both Accetturo of the Lucchese crime family, and John Riggi Sr. of the DeCavalcante crime family.  These associations are not fleeting or casual.

 

17.     Under the EDP, an association with organized crime members must affect the union directly or indirectly to constitute barred conduct.

 

18.     The IHO gives a very liberal construction to the phrase “directly or indirectly affects the union.”  In In the Matter of Napoli and Fallacara, IHO Order and Memorandum, 96-65D, (September 25, 1997) the IHO said:

 

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.

 

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.

 

In the Matter of Napoli and Fallacara, IHO Order and Memorandum, 96-65D (September 25, 1997).

 

19.     The very presence in a union of individual who associates on a very personal level with high ranking members of the LCN gives the impression that the purpose of his union membership is not for working at the calling, and that he is in the union only as a cover.  The close association gives other members the signal that the LCN has penetrated the union, acts as a deterrent to free speech, and casts a chilling effect on union democracy.

 

20.     Based upon the factors in the foregoing paragraphs, the IHO concludes that Majuri’s association with the LCN affected the operation of LIUNA.

 

21.     Majuri was indicted by the United States Attorney for the Southern District of New York.  The indictment was made public October 19, 2000.  Some of the allegations in that indictment deal with his association with organized crime.  The GEB Attorney’s questions at the December 13 hearing addressed the allegations in that indictment.

 

22.     The GEB attorney asked the following questions:

 

-          Mr. Majuri, are you the acting boss of the DeCavalcante crime family?

-          Were you part of a conspiracy to have Frank Scarbonno murdered?

-          Were you concerned that Mr. Scarbonno was cooperating with the authorities?

-          Were you part of a ruling unit or panel of the DeCavalcante crime family?

-          Are you aware that there’s a plot to murder you?

-          Are you aware that the plot to murder you was due to your desire to have a high-ranking member of the DeCavalcante crime family killed?

-          Do you know John Riggi?

-          Was he the former boss of the DeCavalcante crime family?

-          Do you know George Fresolone?

-          Did you have any dealings with George Fresolone when he was with the Bruno Scarfo family?

-          Do you know James Palermo?

-          Peno Shifferletti (phonetic); do you know who he is?

-          Do you know Joe-Joe Ferrara?

-          Were you elevated to the position of capo in the early ‘90’s?

-          Did you socialize with Mr. Accetturo between 1970 and 1990?

-          Did you ever attend meetings with John Riggi Sr. on behalf of the DeCavalcante crime family?

-          Did Mr. Fresolone meet you through John Riggi who introduced you as quote, “a friend of ours”, unquote, in the early 1980’s?

-          Did you ever discuss with Mr. Fresolone your involvement in fixing numbers, collecting numbers and loan-sharking activities?

-          Mr. Majuri, are you aware that Anthony Accetturo was a former boss of the Lucchese family in New Jersey?

 

23.     Majuri refused to answer any of the foregoing questions based on his Fifth Amendment right to remain silent.

 

DISCUSSION

 

Paragraph 3 of the EDP provides:

 

The GEB Attorney shall have the right to take and require the sworn statement, or sworn oral deposition, of any officer, agent, representative, employee, or member of the Union.  If any person refuses to testify or to provide evidence before the GEB Attorney on the basis of his privilege against self-incrimination discipline may be imposed on such person for that reason alone consistent with the Code of Ethics of the American Federation of Labor-Congress of Industrial Organizations, as adopted by LIUNA in 1958.

 

This is a case of first impression for the IHO.  The IHO recognizes an individual’s right to remain silent against accusations that might lead to his conviction on charges pending in a criminal matter.  That right does not affect nor deter a union’s right to assure the integrity of its membership.

 

The AFL-CIO Code of Ethics provision referred to in the EDP is contained in an AFL-CIO policy statement issued on January 28, 1957 (January 1957 Policy Statement); that statement provides:

 

It is the policy of the AFL-CIO . . . that if a trade union official decides to invoke the Fifth Amendment for his personal protection and to avoid scrutiny by proper legislative committees, law enforcement agencies or other public bodies into alleged corruption on his part, he has no right to continue to hold office in his union.  Otherwise, it becomes possible for a union official who may be guilty of corruption to create the impression that the trade union movement sanctions the use of the Fifth Amendment, not as a matter of individual conscience, but as a shield against proper scrutiny into corrupt influences in the labor movement.

 

January 1957 Policy Statement.

 

In December 1957, the AFL-CIO Executive Council substantially modified the January 1957 Policy Statement to effect that an assertion of the Fifth Amendment does not require automatic expulsion from office.  The December policy statement held that if, upon investigation by the member’s union, findings indicate that a member asserted the Fifth Amendment to avoid discovery of corruption, the member had no right to continue to hold union office.  The new policy required that a separate union investigation determine any alleged assertion of the Fifth Amendment to conceal discovery of corruption. See 1957 Policy Statement; Letter from AFL-CIO President John Sweeney to Executive Board members of 11/21/97.

 

The drafters of the EDP had both the January and December 1957 AFL-CIO Policy Statement texts before them.  See Letter from Robert Luskin to Peter F. Vaira of 1/9/01.  Section 3 of the EDP clearly states that “ . . . discipline may be imposed for that reason [asserting the Fifth Amendment] alone . . . .”  EDP, Section 3.  The IHO finds that the EDP drafters did not intend to include the same limitations on the Fifth Amendment policy contained in the AFL-CIO December 1957 policy statement in the EDP.  The IHO holds that the EDP permits the GEB Attorney to seek a penalty for a person who asserts the Fifth Amendment in a LIUNA proceeding, under conditions as further defined below.

 

The AFL-CIO policy statement limits the penalty to removal from union office.  The drafters of the EDP expanded the reach of the AFL-CIO policy, making the Fifth Amendment assertion provisions of the EDP applicable “to any officer, agent, representative, employee, or member of the union.”  EDP, Section 3.  Thus, the clear language of the EDP extends the penalty for asserting the Fifth Amendment to persons other than office holders, as specifically enumerated in EDP, Section 3.

 

The EDP language further indicates that the penalty for asserting the Fifth Amendment is limited to LIUNA proceedings in which the GEB Attorney asks questions.  The IHO holds that this language necessarily includes questions posed by the IHO during GEB Attorney proceedings over which the IHO presides.

The EDP is silent as to whether a penalty may be imposed on a member asserting the Fifth Amendment in a LIUNA disciplinary hearing when questioned by any other counsel, or a personal representative of a respondent, other than the GEB Attorney.  The EDP is also silent regarding the assertion of the Fifth Amendment by a member testifying in a trial board hearing.  Furthermore, Section 3 of the EDP does not refer to a member’s assertion of the Fifth Amendment before a grand jury, a court, a legislative committee hearing, or administrative hearing, as does the AFL-CIO policy statements of January and December 1957.[3]  The IHO does not decide these issues today.

 

In summary, the IHO holds that a LIUNA officer, agent, representative, employee or member may be penalized for asserting the Fifth Amendment in any proceeding in which that person is questioned by the GEB Attorney or by the IHO.  The IHO does not decide whether any of the above-described persons may be penalized for asserting the Fifth Amendment when questioned in a LIUNA disciplinary hearing by counsel or personal representative of a respondent other than the GEB Attorney; when questioned by a party when testifying in a trial board hearing; or for asserting the Fifth Amendment in a grand jury, court proceeding, a legislative committee or administration hearing.

 

In this matter, Majuri asserted the Fifth Amendment in response to GEB Attorney questions, which, if answered, would have supplied information about Majuri’s activities within the DeCavalcante crime family and his association with a member of the Lucchese crime family.  Association with either the DeCavalcante crime family or the Lucchese crime family is barred conduct and, as such, it is relevant to a GEB Attorney inquiry.

 

CONCLUSIONS

 

1.        Majuri violated the EDP and committed barred conduct by associating with Anthony Accetturo, John Riggi Sr., members of the LCN.

 

2.        Majuri is subject to discipline for refusing to answer relevant GEB Attorney questions, in response to which he asserted his right to remain silent under the Fifth Amendment.

 

DECISION

 

The GEB attorney sustained his burden of proof by a preponderance of the evidence on the charge that Majuri has committed barred conduct by associating with members of the LCN.  Majuri is further subject to discipline for asserting the Fifth Amendment to relevant GEB Attorney questions.

 

PENALTY

 

Majuri’s penalty for association with the LCN:  Majuri’s membership in LIUNA is permanently revoked.  Majuri cannot take part in any LIUNA activities, nor be employed by or hold office in any LIUNA related entity.

 

Majuri’s penalty for asserting the Fifth Amendment to relevant questions by the GEB Attorney: Majuri’s membership in LIUNA is permanently revoked.  He cannot take part in any LIUNA activities, nor be employed by or hold any office in any LIUNA related entity.

 

The two penalties are severable, each may be imposed without the imposition of the other.  This Order does not take effect until ten days after the date of this Order and, if appealed, upon the decision of the Appellate Officer.

 

Majuri has a right to appeal this Order and Memorandum within 10 days of the receipt of the Order, by filing a notice with the Appellate Officer.

 

                                                                                                PETER F. VAIRA

 

                                                                                                INDEPENDENT

                                                                                                HEARING OFFICER