In the Matter of Bruno Caruso, et al.

Laborers’ International Union of North America

Independent Hearing Officer

Docket No. 99-12D

Decided April 14, 2000

Order

        This Order and Memorandum addresses the admissibility of three items of evidence offered by the GEB Attorney in the above captioned matter:  1)  the testimony of Michael J. Corbitt (Corbitt); 2) the transcript of Charles “Guy” Bills’s (Bills) testimony in the Chicago District Council (CDC) proceedings; and  3) GEB Attorney Exhibits 105, 106, and 107, referred to collectively herein as the “City of Chicago Investigation Exhibits.”  All were the subject of objections by the Respondents.

Motion to Strike Testimony of Michael J. Corbitt

        On January 21, 2000, during the hearing, Corbitt testified via telephone before the IHO.[1]  Corbitt is in the Federal Witness Protection Program and did not testify in person for his own protection.  The IHO gives no evidentiary weight that Corbitt’s safety was threatened in this hearing, but from other alliances from his past.  Corbitt testified regarding his involvement in organized crime in Chicago over approximately thirty years.  During certain points of his cross-examination, Corbitt refused to answer any questions pertaining to his contact with Kevin Marsh, a former Assistant United States Attorney in Florida.  Corbitt also declined to answer questions regarding whether he had been rewarded for testifying before the IHO in the CDC proceeding or would be rewarded in the future for cooperation in this hearing.

        On February 27, 1997, four months prior to the June 1997 filing of the CDC complaint, there was an oral motion by the U.S. Attorney for the Northern District of Illinois for reduction of Corbitt’s sentence.  See Docket, United States v. Masters, 88CR500-2 (N.D. Ill.).  Corbitt later testified before the IHO at the CDC proceedings on August 13, 1997.  On February 27, 1998, a Minute Order was entered reflecting that Judge James B. Zagel granted the oral motion of the government as a result of Corbitt’s “substantial assistance” and reduced Corbitt’s sentence to seventeen years, five months, and two days.  The GEB Attorney has stated that Corbitt’s sentence was reduced by approximately one year.  Apart from the public docket sheet, all matters concerning the oral motion of the government are currently under seal by order of Judge Zagel.

        As a preliminary matter, the IHO notes that a “full and fair” hearing in a LIUNA disciplinary proceeding does not include the Confrontation Clause of the Sixth Amendment.  Erbacci, Cerone, and Moriarty v. United States, 939 F.Supp. 1045, 1056 (S.D.N.Y. 1996) (finding that “the United States Constitution does not afford a plaintiff any right to confront witnesses in an internal, union disciplinary investigation”).

        “Striking the testimony of a witness is a drastic remedy.  It is not to be lightly done.”  Lawson v. Murray, 837 F.2d 653, 656 (4th Cir.), cert. denied, 488 U.S. 831 (1988).  If a non-party witness refuses to answer proper questions of the cross-examiner, the matter of whether to exclude or allow the direct testimony to stand is within the discretion of the judge, especially when it comes to the credibility of the witness or otherwise collateral matters.  See McCormick on Evidence (4th Ed.) §19.

        Despite Respondents’ contention to the contrary, matters regarding bias or motive to testify are considered collateral and a “majority of the circuits have expressly adopted a rule distinguishing between cross-examination related to the witness’s credibility and other collateral matters and cross-examination related to his direct testimony.”  55 A.L.R. Fed. 742, § 2 (1981).  Furthermore, the refusal to supply what would be cumulative testimony regarding credibility also does not warrant striking testimony. A brief overview of circuit holdings follows.

        In United States v. Cardillo, 316 F.2d 606 (2nd Cir. 1963), after a witness admitted to a substantial criminal record, he invoked the privilege against self-incrimination when asked whether he had committed other crimes in the past and whether he was guilty of pending state criminal charges.  The Court found that the questions were “purely collateral for they related solely to his credibility as a witness and had no relation to the subject matter of his direct examination.”  Id. at 611.  Therefore, since the trial court had been aware of the criminal record and pendency of other charges, the defendants were not prejudiced and there was no need to strike the testimony.  The court further stated that “collateral matters or cumulative testimony concerning credibility which would not require a direction to strike and which could be handled (in a jury case) by the judge’s charge if questions as to the weight to be ascribed to such testimony arose.”  Id. at 613. 

        In United States v. Stephens, 492 F.2d 1367 (6th Cir. 1974), the defendants were convicted on conspiracy to transport and dispose of stolen merchandise.  The prosecution’s witness refused to answer a question on cross-examination regarding a different load of goods in an entirely unrelated trip than that charged in the case.  The Court said “If the purpose of this cross-examination was to cast doubt upon the credibility of [the witness], it was cumulative evidence.  There was no effort by the government to conceal [the witness’s] past or current troubles with the law, and counsel for the defense availed themselves of numerous opportunities to remind the jury of the flawed character of the chief witness for the prosecution.”  Id. at 1375.

        In United States v. Norwood, 931 F.2d 297, 299 (5th Cir. 1991), the government was not able to attack the defendant’s witness’s credibility by cross-examining her concerning a prior conviction because the witness had not re-appeared after a break.  The trial judge struck the witness’s testimony in its entirety.  The Fifth Circuit ruled that it was improper for the trial judge to strike the testimony because “the government sought to explore the witness’s credibility by cross-examining her only with respect to collateral matters.  The inability to inquire into such matters on cross-examination does not warrant striking a witness’s testimony unless the process is frustrated.”  The court stated that since the credibility could have been just as easily impeached by calling the parole officer to testify about the witness’s prior convictions, the quest for truth would not have been undermined if the testimony had been left alone.  Id.

        The Seventh Circuit has reached a similar conclusion finding that district courts should not strike relevant and competent direct examination where a witness on cross-examination invokes the privilege against self-incrimination with respect to collateral questions relating only to credibility and not concerning the subject matter of direct examination. United States v. Castello, 830 F.2d 99, 100 (7th Cir. 1987); See also State of Wisconsin v. Gagnon, 497 F.2d 1126 (7th Cir. 1974) (constitutionally impermissible to strike defense witness testimony due to refusal to answer collateral questions which relate only to credibility and do not concern subject matter of direct examination).

        Respondents have a right to attempt to raise doubt in the mind of the IHO, as the finder of fact, as to whether the GEB Attorney witness is biased or untruthful. However, at the hearing, Corbitt did respond extensively during cross-examination to questions regarding the subject matter of his direct examination.  Therefore, IHO finds that with the exceptions noted, Corbitt was fully cross-examined.  The IHO notes that as the result of Respondents’ cross-examination, Corbitt modified his prior CDC testimony on direct in favor of the Respondents in several respects.

        The witness’s refusal to answer certain questions during cross-examination did not deprive the Respondents the ability to test the truth of the direct testimony.  There has been no attempt by the GEB Attorney to hide the background of the witness or his prior reduction in sentence for cooperation.  Moreover, the IHO is satisfied that Corbitt’s sentence reduction was due in part to his cooperation with the GEB Attorney by testifying at the CDC hearing.  The IHO is aware of the witness’s extensive criminal record by the witness’s own testimony and that of court records, of the reduction of sentence based upon oral motion of the United States Attorney, and of the witness’s statements that he has been untruthful in the past.  The Respondents have been given the opportunity to demonstrate to the IHO why he should not find merit in Corbitt’s testimony and such evaluation will go to weight, not admissibility.

        Respondents also raised the issue of the IHO’s placing of Corbitt under oath through a continuation of prior testimony and that Corbitt consulted with an unnamed individual during the hearing.  The IHO finds these arguments to be unpersuasive.  Corbitt assured the IHO that there was no one with him in the room other than security personnel and that he was unrepresented.  Furthermore, the IHO notes that there was no delay in Corbitt’s answers to indicate that he was being aided by anyone.

Charles “Guy” Bills Testimony

        The GEB Attorney had submitted Bills’s name as one of the potential witnesses in this proceeding.  On January 10, 2000, the first day of the hearing in this matter, the GEB Attorney informed the IHO that Bills had died of a heart attack at the end of December 1999.  The GEB Attorney moved to introduce into evidence the transcript from Bills’s prior testimony before the IHO during the CDC proceedings.

        The IHO finds that Bills’s testimony is admissible on two separate grounds.  The IHO finds that it is reliable hearsay.  The IHO saw and heard Bills at the CDC hearing and observed him being cross-examined.  The IHO is aware of the adverse information about Bills’s criminal record.  The IHO will re-examine Bills’s testimony de novo in relation to the charges in this matter.

        The IHO further finds that Bills’s testimony is admissible pursuant to Federal Rule of Evidence 804(b)(1) which provides that prior testimony is admissible if the witness is unavailable, where:

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

        Bills testified at the CDC proceedings.  The IHO finds that the CDC was a predecessor in interest to the Respondents in the present matter.  The goal of the attorney representing the CDC in the trusteeship proceedings was to defend against allegations that the CDC and its leadership was dominated by organized crime.  The lawyers for the CDC and the lawyers for the Respondents had the same motive to discredit Bills’s testimony.  The CDC’s attorney made a substantial record of Bills’s criminal history and his reputation for lack of veracity.  The IHO notes that counsel for the CDC had ample opportunity to confer with the Respondents prior to cross-examination, and took full advantage of the opportunity.  The Respondents in this matter were present nearly every day of the CDC hearing.  The attorney for the CDC examined Bills extensively on his prior convictions and reputation for telling lies.

        The IHO finds that in the CDC proceedings related to Bills’s testimony, there was a predecessor in interest, motive, and opportunity such that it is appropriate to admit the testimony as the prior testimony of an unavailable witness.

        There is no collateral estoppel attached to the prior testimony.  By its mere admittance, the IHO only indicates that he will consider the statements made therein in context of the present proceedings.  Any findings of fact or conclusions reached therefrom will be de novo and may be addressed in the closing briefs by both parties.

City of Chicago Investigation Exhibits

(GEB Attorney Exhibits 105, 106, and 107)

        In 1991, the City of Chicago Inspector General (Chicago IG) conducted an investigation regarding falsification of attendance records and leaving the worksite without authorization (City of Chicago Investigation).  The GEB Attorney seeks to introduce into evidence three exhibits pertaining to the City of Chicago Investigation.  GEB Attorney Exhibit 105 is a press release from the City of Chicago Department of Streets and Sanitation regarding the investigation.  GEB Attorney Exhibit 106 is an investigative summary of the Inspector General’s evidence regarding allegations that Leo Caruso committed violations of either criminal law or the Personnel Rules of the City of Chicago.  GEB Attorney Exhibit 107 is an investigative summary of the Chicago IG’s evidence regarding allegations that Nicholas Gironda committed violations of either criminal law or the Personnel Rules of the City of Chicago.  The GEB Attorney has offered Exhibit 106 as truth of the matter asserted against Leo Caruso.  The GEB Attorney has offered Exhibit 105, 106, and 107, against Bruno Caruso and Frank Caruso not as truth of the matter asserted, but to show notice of the accusations made against Leo Caruso and Nicholas Gironda.

Exhibit 106 As Truth of the Matter Asserted as to Leo Caruso

        Regardless of the availability of the declarant, the following are not excluded by the hearsay rule:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth…(C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

F.R.E. 803(8).  In Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), the Court interpreted Rule 803(8)(C) to include as admissible, investigative reports containing conclusions and opinions.  However, the GEB Attorney does not ask the IHO to adopt the Chicago IG’s conclusions and opinions, but merely to note that on the dates observed by inspectors, Leo Caruso’s timesheets indicated he was on the job, but in fact had been observed leaving the premises.

        The IHO finds the Chicago IG report to be reliable.  The Chicago Inspector General is a bona fide official of the City of Chicago empowered by Chapter 2-56 of the Municipal Code.  Included among the duties of the Inspector General are the following:

(a)     To receive and register complaints and information concerning misconduct, inefficiency and waste within the city government;

(b)     To investigate the performance of governmental officers, employees, functions and programs, either in response to complaint or on the inspector general’s own initiative, in order to detect and prevent misconduct, inefficiency and waste within the programs and operations of the city government;

(d)     To report to the mayor concerning results of investigations undertaken by the office of inspector general ….

Chicago Municipal Code, 2-56-030, Inspector General-Powers and Duties.

        Furthermore, the Inspector General is required to issue a report when an investigation is conducted:

Upon conclusion of an investigation the inspector general shall issue a summary report thereon.  The report shall be filed with the mayor, and may be filed with the head of each department or other agency affected by or involved in the investigation.  This report shall include the following:

(a)     A description of any complaints or other information received by the inspector general pertinent to the investigation;

(b)     A description of any illegal conduct, inefficiencies or waste observed or discovered in the course of the investigation;

(c)     Recommendations for correction of any illegal conduct, inefficiencies or waste described in the report;

(d)     Such other information as the inspector general may deem relevant to the investigation or resulting investigations.

Chicago Municipal Code, 2-56-060, Investigation Reports.

        The IHO notes that such reports are routinely admitted into evidence in administrative hearings concerning personnel matters.  In Exhibit 106, the findings of fact are supported by a specific recitation of the events observed by the investigators and the report was witnessed by several investigators.

        Respondents seek to discredit the report by stating that after the surveillance, a raid was conducted where many employees were detained and questioned.  Respondents offer the findings of an arbitrator which concluded that the raid had been improperly conducted.  However, the subsequent raid does not affect Exhibit 106.  The IHO passes no judgment on the issue of the raid’s conduct because it is the surveillance prior to the raid which is being offered into evidence.  The results of the subsequent raid is not part of Exhibit 106.  Exhibit 106 simply notes the dates and times where investigators surveilled Leo Caruso and that the investigators later compared the surveillance with the sign-in log.  The IHO finds the Chicago IG report concerning Leo Caruso to be reliable.

        LIUNA hearings are civil, not criminal matters, and the 6th Amendment Confrontation Clause does not apply.  Therefore, admissibility in a LIUNA hearing of a public record pursuant to 803(C) is permitted against the Respondent provided the IHO finds the investigation report was trustworthy.

Exhibits 105, 106, and 107 As Notice as to Bruno Caruso and Frank Caruso

        Exhibits 105, 106, and 107 are offered by the GEB Attorney to demonstrate that Bruno Caruso and Frank Caruso had notice of the allegations against Leo Caruso and Nicholas Gironda.  As they are not offered as truth of the matter contained within, there is no hearsay problem with the documents.  The IHO finds that the exhibits could be relevant to the GEB Attorney’s averment that he intends to demonstrate that Leo Caruso and Nicholas Gironda were either promoted or given LIUNA positions for reasons other than merit.  At this point the IHO makes no determination of the probative weight of the documents, if any, in evaluating the GEB Attorney’s case against Bruno Caruso and Frank Caruso.

Conclusion

        Upon consideration of the evidence offered and the memoranda submitted by both the GEB Attorney and the Respondents, for the reasons discussed supra, the IHO finds as follows:

        The Respondents’ motion to strike the testimony of Michael Corbitt is DENIED.  The testimony of Michael Corbitt is ADMITTED in its entirety.

        The City of Chicago Exhibits, GEB Attorney Exhibits 105, 106, and 107, are ADMITTED.

        The testimony of Charles “Guy” Bills is ADMITTED.

        The IHO’s ruling on these three matters goes to admissibility only and does not reflect the weight given to this evidence.  The IHO will further consider the arguments made by both parties as appropriate in attributing the weight given.  The IHO will evaluate the probative weight of the above-discussed items in his final Order and Memorandum.

        The GEB Attorney and Counsel for Respondents are directed to formulate a schedule for post-hearing briefs and reply briefs and communicate the due dates they have selected to the IHO by April 24, 2000.

                                                                                                PETER F. VAIRA

                                                                                                INDEPENDENT

                                                                                                HEARING OFFICER