Petition for Writ of Certiorari — Local 560 of the International Brotherhood of Teamsters v. United States

| } rt, U.

g5-1448 D rye? vs |

oe cER 28 1986

mneA NI01, JR

— SRK

IN THE nee

Supreme Court of the United States

OCTOBER TERM, 1985

LOCAL 560 of the International Brotherhood

of Teamsters, Chauffeurs, Warehousemen

and Helpers of America,

MICHAEL SCIARRA, President,

JOSEPH SHERIDAN, Vice-President,

JOSEPHINE PROVENZANO, Sec-Treasurer,

STANLEY JARONKO, Trustee,

and

JOSEPH SHERIDAN,

JOSEPHINE PROVENZANO,

MICHAEL SCIARRA,

STANLEY JARONKO,

Petitioners (Appellants Below),

v.

UNITED STATES OF AMERICA,

Respondent (Appellee Below).

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Barbara H. Fleisher

(Counsel of Record)

PREISER & WILSON

P.O. Box 2506

1012 Kanawha Blvd. East

Charleston, WV 25329

(304) 344-9651

Attorney for Petitioners

February 28, 1986

CASILLAS PRESS INC. - 1717 K STREET NW WASHINGTON DC - 223-1220

(i)

QUESTIONS PRESENTED FOR REVi~W

1. Whether the “preponderance of the evidence” stan-

dard of proof is sufficient to sustain a verdict in a civil ac-

tion brought pursuant to the Racketeer Influenced and

Corrupt Organization Act [RICO], 18 U.S.C. § 1961 er

seq., a question left open by this Court in Sedima,

S.P.R.L. v. Imrex Company, Inc., et al., 473 U.S. __,

87 L.Ed.2d 346, 105 S.Ct. 3291 (1985).

2. Whether the alleged extortion of intangible rights

guaranteed to union members by the Labor Management

Reporting and Disclosure Act [LMRDA], “Bill of Rights,”

29 U.S.C. § 411, constitutes a violation of the Hobbs Act,

18 U.S.C. § 1951, and thus a chargeable predicate offense

under RICO.

3. Whether union officers’ lawful appointment of con-

victed felons to union office, in compliance with the then-

applicable provision of LMRDA, 29 U.S.C. § 504, can

constitute a violation of the Hobbs Act, 18 U.S.C. § 1951.

4. Whether union officers’ violation (arguendo) of

LMRDA, 29 U.S.C. § 501(a), in failing to take affirmative

action to suspend the union’s payments of accrued salary

and/or pension bonus monies to an individual convicted

of union-related crimes, can constitute a violation of the

Hobbs Act, 18 U.S.C. § 1951.

(ii)

PARTIES

The parties to this action in the United States Court of

Appeals for the Third Circuit were Local 560 of the Inter-

national Brotherhood of Teamsters, Chauffeurs, Ware-

housemen, and Helpers of America, Salvatore Proven-

zano, President (and individually), Joseph Sheridan, Vice-

President (and individually), Josephine Provenzano [Sep-

tembre], Sec-Treasurer (and individually), J.W. Dildine,

Recording Secretary (and individually), Thomas Rey-

nolds, Sr., Trustee (and individually), Stanley Jaronko,

Trustee (and individually); Trucking Employees of North

Jersey Welfare Fund, Inc., Salvatore Provenzano, Em-

ployee Trustee; Local 560 Officers and Employees

Severance Pay Plan, Salvatore Provenzano, Trustee and

Administrator, Josephine P. Septembre, Trustee and Ad-

ministrator; Anthony Provenzano, individually; Nunzio

Provenzano, individually; Stephen Andretta, individually;

Thomas Andretta, individually; Gabriel Briguglio, in-

dividually; and Michael Sciarra, individually (and as

Trustee of Local 560, although not so denominated), ap-

pellants below; United States of America, appellee below.

The petitioners on this petition for writ of certiorari are

Local 560 and its four remaining Executive Board mem-

bers, Michael Sciarra, former Trustee, now President,

Joseph Sheridan, Vice-President, Josephine Provenzano,

Sec-Treasurer, and Stanley Jaronko, Trustee.

(iii)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .................... i

aye a Kass 54 cas vik ddd cece cecencce,, ii

rc iii

a r iii

OPINIONS IN COURTS BELOW ............................ l

GROUNDS OF JURISDICTION ................0...000050.5, 2

CONSTITUTIONAL PROVISIONS ANDSTATUTES .......... 3

dS 3

LG Nuk oaks a dc 0ke sac cacnccccaccs, 10

sa, ny ou kkk ban nanecuevceeci 27

APPENDIX (Separately Bound)

TABLE OF AUTHORITIES

Cases: Page

Addington v. Texas,

441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ......... 12-13

Herman & MacLean v. Huddleston,

459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983) ........... 14

Haroco, Inc. v. American Nat’! Bank & Trust Co.,

747 F.2d 384 (7th Cir. 1984), affd, ____ U.S. __,

105 S.Ct. 3291, 87 L.Ed.2d 437 (1985) ...................... 10

McNamara v. Johnston,

522 F.2d 1157 (7th Cir. 1975), cert. denied,

IE 25

(iv)

Page

Preiser v. Rodriguez,

ee ED on nex ka Gan duchcewesdeanvdaweenceeesees 23

Russello v. U.S.,

464 U.S. 16, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ............. 11

Santosky v. Kramer,

455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) .......... 14

S.E.C. v. C.M. Joiner Leasing Corp.,

320 U.S. 344, 64S.Ct. 120, 88 L.Ed.2d 88 (1943) ............. 14

Sedima, S.P.R.L. v. Imrex Company, Inc., et al.,

741 F.2d 482 (2d Cir. 1984), rev’d, 473 U.S. ___.,

87 L.Ed.2d 346, 105 S.Ct. 3291 (1985) ........... i, 11, 12, 14, 16

Simpson v. U.S.,

ED ons conv nk GecsbinobectasuceKentanssanens 23

Steadman v. Securities and Exchange Comm'n,

450 U.S. 91, 101 S.Ct. 999, 67 L.Ed. 69(1981) ............... 14

Tomko v. Hilbert,

ee NCL, SUED occa cedeccdnedcdaweerecausecwas 18

U.S. v. Allman,

609 F.2d 298 (7th Cir. 1979), cert. denied,

a kncun dons baxebecnanss saan ones hase ue'es 20

U.S. v. Anderson,

626 F.2d 1358 (8th Cir. 1980), cert. denied,

ee in ck chachcathahecsncdrsvsaneescnan 21

U.S. v. Bates,

NG MID hk x ckccannccnacanoncwiandacenes 23

U.S. v. Bertucci,

333 F.2d 292 (3rd Cir.), cert. denied,

ee ED Siew c ko scheankwk ct nuuctes butdeanSucesed i8

(v)

U.S. v. Black,

a Ee ma Ae Te

U.S. v. Boylan,

20 F.2d 359 (2d Cir.), cert. denied,

SI cd riety NS a ene Lt ae

U.S. v. Cappetto,

$02 F.2d 1351 (7th Cir. 1974), cert. denied, 420 U.S.

925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975) ................ 11, 16

U.S. v. Dean,

647 F.2d 779 (8th Cir. 1981), cert. denied, 456 US.

ie 6 te a ea ee ee ne aE

U.S. v. Greenleaf,

692 F.2d 182 (Ist Cir. 1982), cert. denied, sub nom

Bratton v. U.S., 460 U.S. 1069 (1983) and Greenleaf

i Ss es MII x cs hw Cakes 0s Casecnécciseccs

U.S. v. Hawkins,

Eg er ere nN pera a eM MARS oe 22h

U.S. v. Kelly,

545 F.2d 619 (8th Cir. 1976), cert. denied,

ERIE AT ERE gre Spo et MEIER TEE

U.S. v. Local 560, etc., et al.,

PE is HEED 5 vc svccnccecucnncecesseeae 2,19

U.S. v. Local 560, Int’l Bhd. of Teamsters, Chauffeurs,

Warehousemen, and Helpers of North America, et al.,

Pee Eas BUD Shes bx candesekdacciundveks 2, 18

U.S. v. Local 560 of the Int’l Bhd. of Teamsters,

Chauffeurs, Warehousemen, and Helpers of

America, et al.,

Pe ET es BOUND 5 ov via cceawinnnanscactensnsees 2,19

U.S. v. Malizia,

Pe I SE choc etn cb ee ikcak bak eeneee

(vi)

Page

U.S. v. Regan,

222 U.S. 37, 34S.Ct. 213, S8L.Ed.2d 494 (1914) ..........55. 14

U.S. v. Roganovich,

318 F.2d 167 (7th Cir.), ceri. denied, 375

JF ¢ |, GAProrrvrrrerT rere arie rier eke eaiek 18

U.S. v. Rone,

598 F.2d 564 (9th Cir. 1979), cert. denied sub nom

Little v. U.S.,

GAS U.S. 946 (19BO) ow. ccc ccc ccc cree cece eee eenneecennes 21

U.S. v. Snyder,

668 F.2d 686 (2nd Cir. 1982) ... 0.1... cece eee eee eee ees 26

U.S. v. Sutton,

700 F.2d 1078 (6th Cir. 1983) 2... 6... cece eee eee eee 20

U.S. v. Truglio,

731 F.2d 1123 (4th Cir.), cert. denied, ____ U.S.

meen HOS B.C. IGT CIGRE) nn cv cc ccccccccccccsecensccccnees 20

U.S. v. Williams,

624 F.2d 75 (9th Cir. 1980) 2... cece cece eee eens 18

Vance v. Terrazas,

GAA U.S. 2S2CIGBD) 2... cc cvccnsccnccncccenrcccennseencces 14

Winer v. Edison Brothers Stones Pension Plan,

§93 F.2d 307 (8th Cir. 1979) 2.0... ccc eee eee eee eee eee 25

Statutes:

St rr eer errr TT Terr ee ce T ETT Tere Ere 3,8

cpu kcae cbse C6 A caseccassacncacenes i, 5, 19, 20

nce c cents eecencasacacbeancensnseuane 15

SUR Re)” eer eee eee as 3 OF

PEE, BEI cic cca sccccenscnncncanncenccnrececcanesccsas 2

(vii)

Page

BP ees Oe RGD nok kk cc nckccuncuruncencccacvuce ine

A ea a ie ge i, 3, 10, 18

PE a Wek ei 64 CPR ch he tk b0kk cen atk enkcescae odin i, 3,9

Miscellaneous:

Blakey & Goldstock, “On the Waterfront:”

RICO and Labor Racketeering, 17 Am.Crim.L.Rev.

341 (1980) 20

1 K. Brickley, Corporate Criminal Liability

UE eae Ee eee her ek or ee AE ek i 11

Matz, Determining the Standard of Proof in Lawsuits

Brought Under RICO, The National Law Journal,

MA PIE “An 0 eck 0 bt Abd is bu ch keane na kek k ce cckcace 11, 16

Note, /nvesting Dirty Money: Section 1962(a) of the

Organized Crime Control Act of 1970,

ee eI Shae Oot re Ok es Co ae 20

Rodonich v. House Wreckers Union, Civ. No. 82-5583

(S.D.N.Y., Nov. 7, 1986) (available Feb. 25, 1986, on

I ME so ac ie i ccs babdcwaunkee exkcuen 19

Strafer, Massumi & Skolnick, Civil RICO in the Public

Interest; Everybody's Darling,

19 Am.Crim.L.Rev. 655 (1982) ... 00... ccc ccc cee 10, 11, 16

Tarlow, RICO: THe New Darling of Prosecutor's

_ Nursery, 49 Fordham L.Rev. 165 (1980)... 2... ee 21

Towers, Burden of Proof in RICO Actions: Does

‘Sedima’ Provide Guidance? The National Law

ME I ED whois ci we wed kek cdc kvkikoeue 10, 11-12, 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-

LOCAL 560 of the International Brotherhood

of Teamsters, Chauffeurs, Warehousemen

and Helpers of America,

MICHAEL SCIARRA, President,

JOSEPH SHERIDAN, Vice-President,

JOSEPHINE PROVENZANO, Sec-Treasurer,

STANLEY JARONKO, Trustee,

and

JOSEPH SHERIDAN,

JOSEPHINE PROVENZANO,

MICHAEL SCIARRA,

STANLEY JARONKO,

Petitioners (Appellants Below),

Vv.

UNITED STATES OF AMERICA,

Respondent (Appellee Below).

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINIONS IN COURTS BELOW

The opinion of the United States District Court for the

District of New Jersey, denying petitioners’ motion for

dismissal of paragraph 12(a) of the Complaint for failure

to state a cause of action, is reported at U.S. v. Local 560,

etc. et al., 550 F. Supp. 511 (D.N.J. 1982) (App. A).

The opinion of the United States District Court for the

District of New Jersey, with findings of fact and conclu-

sions of law following a 51-day bench trial, is reported at

U.S. yv. Local 560, International Brotherhood of Team-

sters, Chauffeurs, Warehousemen, and Helpers of Amer-

ica, et al., 581 F. Supp. 279 (D.N.J. 1984) (App. B).

The opinion of the United States Court of Appeals for

the Third Circuit, affirming the verdict and judgment of

the District Court, is reported at U.S. v. Local 560 of

the International Brotherhood of Teamsters, Chauffeurs,

Warehousemen, and Helpers of America, et al., 780 F.2d

267 (3rd Cir. 1985) (App. D).

GROUNDS OF JURISDICTION

The judgment of the United States Court of Appeals for

the Third Circuit in this case was dated and entered De-

cember 26, 1985.

The order of the United States Court of Appeals for the

Third Circuit in this case, denying petition for rehearing

(with suggestion for rehearing en banc), was dated and en-

tered January 23, 1986.

This Court has subject matter jurisdiction pursuant to

28 U.S.C. § 1254, to review the judgment of the Court of

Appeals, by writ of certiorari granted upon timely petition

of a party to a civil action, after rendering of judgment.

3

CONSTITUTIONAL PROVISIONS AND

STATUTES

Title 18, United States Code, Section 2

Title 18, United States Code, Section 1962(a)-(d)

Title 29, United States Code, Section 411(a)(1) & (2)

Title 29, United States Code, Section 501(a)

Title 29, United States Code, Section 504

These statutes are set forth in their entirety at Appendix

I, as provided in S.C.R. 21.1(f).

STATEMENT OF THE CASE

In this unique case, the United States sought, and won,

the ouster of the entire Executive Board of Local 560 of

the International Brotherhood of Teamsters, the relief

granted by the District Court on its finding that the

union’s members have been extorted of their LMRDA

rights and are fearful of their past and/or present leaders.

Not one single union member was called in the United

States’ case in chief to give testimony, evidence or opinions

concerning this ultimate issue of fact or the desirability of

the court’s remedy. Instead, the United States presented

evidence of illegal activities on the part of past union offi-

cers, newspaper articles to prove the past officers’ bad re-

putation (later ruled inadmissible by the Court of

Appeals), the testimony of a Special Agent of the Depart-

ment of Labor concerning his interviews of undisclosed

confidential informants (also ruled inadmissible by the

Court of Appeals), and the testimony of an expert in the

field of labor law that it was “incomprehensible” to him

that the union members were not fearful — a lay psychia-

tric opinion which carried \:.e day. This expert’s opinion, it

should be noted, was based on little more than his reading

of the Complaint and his speculation concerning union

members’ expected reactions to past officers’ criminal con-

victions, in view of the Court of Appeals’ rulings concern-

ing the newspaper articles and the special agent’s testi-

mony. (At trial the expert relied heavily upon his assump-

tions concerning the reputations of the Provenzano Group

members, which assumptions were no longer based on any

evidence at all.)

This case began with the filing of a verified complaint

by the United States on March 19, 1982, predicated upon

the Racketeer Influenced and Corrupt Organizations Act

[RICO], 18 U.S.C. § 1961 et seg. The named defendants

were Local 560 of the International Brotherhood of Team-

sters together with its Executive Board members; its Pen-

sion and Welfare Fund (Trucking Employees of North Jer-

sey Welfare Fund Inc.); its Officer & Employee Severance

Pay Plan; five persons comprising part of the so-called

“Provenzano Group,” Anthony and Nunzio Provenzano

being former presidents of the Local, Stephen Andretta

being a former business agent, Thomas Andretta and Ga-

briel Briguglio having never held any office or position

with Local 560; and all of the Executive Board members

individually.

The complaint alleged that Anthony Provenzano was

the leader of the Provenzano Group, which included at

various times the defendants specified above as well as

other individuals, all now incarcerated, dead, or long gone

from the union. None of the Executive Board members of

Local 560 were alleged to be members of the Provenano

Group. The Complaint alleged that the Provenzano

Group, beginning in the late 1950’s, had “infiltrated,

dominated and exploited” Local 560, which together with

its Severance Pay Plan and Welfare Fund Plan were

denominated the “Local 560 Enterprise,” thereby render-

ing it a “captive labor organization.”

Paragraph 12(a) of the Complaint charged that the Pro-

venzano Group, as principals, “aided and abetted at vari-

ous times by past and present members of the Executive

Board,” unlawfully acquired and maintained an interest in

and control of the Local 560 Enterprise through a pattern

of racketeering activity, in violation of 18 U.S.C. §

1962(b). Twenty-five [later twenty-eight] separate acts

were listed which were claimed to constitute extortionate

acts inducing the members of Local 560 to surrender their

LMRDA rights, 29 U.S.C. § 411(a)(1) & (2). These extor-

tionate acts were charged as Hobbs Act violations, 18

U.S.C. § 1951.

Paragraph 12(b) of the Complaint charged that the

same Provenzano Group principals and Executive Board

aiders and abettors conducted and participated in the af-

fairs of the Local 560 Enterprise through a pattern of

racketeering activity, in violation of 18 U.S.C. § 1962(c).

Five [later six] specific acts of racketeering activity were

alleged.

The Complaint also alleged that all of the defendants

had conspired to violate § 1962(b) and § 1962(c), in viola-

tion of 18 U.S.C. § 1962(d).

Plaintiff United States requested that the Court restrain

the Local 560 Executive Board members, Salvtore Proven-

zano (then-President), Joseph Sheridan (Vice-President),

Josephine Provenzano (Secretary-Treasurer), J.W. Dili-

dine (then-Recording Secretary), Thomas Reynolds, Sr.

(then-Trustee), Michael Sciarra (then-Trustee and now

President), and Stanley Jaronko (Trustee), from acting in

any official capacity on behalf of Local 560; restrain the

“Provenzano Group” defendants, Anthony Provenzano,

Nunzio Provenzano, Stephen Andretta, Thomas Andretta

and Gabriel Briguglio, from having any dealings with any

officers or employees of Local 560; order the appointment

of a trustee to exercise the duties of the Excutive Board for

an unspecified period of time (presumptively eighteen

months under the District Court’s opinion, App. B), at the

conclusion of which a general election of new officers

would be held under certain terms and conditions; and

prohibit all the individual defendants from having any fu-

ture dealings with Local 560 after such election.

Prior to trial, the United States District Court for the

District of New Jersey denied the petitioners’ motion to

dismiss Paragraph 12(a) of the Complaint for failure to

state a cause of action. (App. A) Individual “Provenzano

Group” defendants Anthony Provenzano, Nunzio Pro-

venzano and Thomas Andretta, all in prison, entered into

consent judgments barring them from any future dealings

with Local 560 or its Pension and Welfare Fund.

The case proceeded to trial before the Hon. Harold A.

Ackerman, without a jury, on fifty-one consecutive days

between January 25 and May 17, 1983. The defendants

who participated in the trial were Local 560 and its Ex-

ecutive Board members, the petitioners herein, as well as

the Trucking Employees of North Jesey Welfare Fund,

Inc., and “Provenzano Group” defendants Stephen An-

dretta and Salvatore Briguglio, the latter two acting pro

se. On February 8, 1984 the District Court issued a lengthy

opinion (App. B) followed by a judgment order (App. C),

granting most of the relief sought by the United States but

staying implementation of the order pending appeal.

The District Court’s factual analysis, recited with ap-

proval by the Third Circuit in its opinion affirming the

judgment on December 26, 1985 (App. D), concentrated

on the misdeeds of the “Provenzano Group” defendants

and then strained to include in its sweep the Executive

Board of Local 560. The Court found that between the

late 1940’s and the time of trial, Anthony Provenzano was

the leader of a group of individuals, the so-called “Proven-

zano Group,” associated together as an enterprise, 18

U.S.C. § 1961(4). The Court further found that from the

late 1950’s into the 1970’s, Anthony Provenzano ran the

union “whether in or out of prison or office,” and that his

brothers Sam and Nunzio Provenzano “played musical

chairs in minding the store for Tony to satisfy the tech-

nical requirements of the law.” (App. B) The Court detail-

ed the “pattern of criminal and other improper acts”

engaged in by the Provenzanc Group, the object of which

was to gain control over and to exploit the Local 560

Enterprise. (App.-B) The conclusion (scores of pages

later): a finding that the necessary result of these acts was

the extortion of LMRDA rights of Local 560 members,

who must necessarily be afraid of Provenzano Group

members and associates because “it is beyond belief that

10,000 members would sit by and watch these things done

and never utter a peep.” (App. D)!

'This was the testimony of the expert witness noted earlier, Pro-

fessor Clyde Summers, an educator in the area of Labor Law. He

opined that “a significant proportion of Local 560’s rank and file were

induced by fear of the Provenzano Group [not the Executive Board

members] to surrender their membership rights.” (App. D at ___)

This homemade psychological analysis, clearly outside the area of

Summers’ expertise, was based on his inability to think of any reason

other than fear which would explain the memberships failure to pro-

test the various acts of the Provenzano Group members — assuming

they knew about them. The Circuit Court agreed with Professor Sum-

mers on the ground that “[{t]here seems to be no other plausible ex-

planation.” (App. D at ____) Other plausible explanations were in fact

given by the defendants’ expert witnesses, whose testimony was not re-

jected, discounted, or discredited; it was just ignored.

co

The major problem faced by the District Court in its

factfinding: having found at lavish length that the mem-

bers of the Provenzano Group were guilty of conduct con-

stituting Hobbs Act violations, specifically, murder and

extortion of union members’ LMRDA rights, how to find

the current Executive Board members of Local 560 guilty

as well — most of whom were not in office during the rele-

vant time periods of the alleged extortionate acts? (As

noted, the Provenzano Group activities dated from the

1940’s. Petitioners Joseph Sheridan and Josephine Pro-

venzano were appointed to the Executive Board in 1978,

petitioners Michael Sciarra and Stanley Jaronko were ap-

pointed in 1981.)

The Court found that the Board members were guilty of

aiding and abetting the extortion of members’ LMRDA

rights, 18 U.S.C. § 2, by virtue of their “appointment and

~ retention in ofice of certain officials of Local 560 and in

their discharge of certain other duties,” (App. A) later

specified to consist of (once again) their appointment and

retention in office of individuals having criminal records;

expenditure of Local 560 assets in the payment of back

salary and pension monies to Antony Provenzano after he

had been incarcerated, notwithstanding the fact that the

membership had voted to pay these monies; and their

reckless indifference ot the persistent and systematic mis-

conduct of fellow incumbent officers” with respect to

(once again) unsuitable appointments to office, permitting

known criminals to have access to the union’s offices, and

(once again) a pattern of non-beneficial expenditures of

Local 560 assets to pay back salary and pension monies

to Anthony Provenzano. As the Court of Appeals summed

up the total case against these petitioners, the sole remain-

ing members of the Executive Board:

. . » Michael Sciarra and Stanley Jaronko, the

most recent members of the Executive Board,

aided and abetted in at least two predicate Hobbs

Act extortions. For example, Antony Proven-

zano’s pension payments, which represented a

Hobbs Act extortion, extended through 1981.

Each Executive Board member, by not objecting

to these payments which did not benefit the

union, necessarily aided and abetted in the extor-

tion. During that time period, both Sciarra and

Jaronko were on the Executive Board.

In addition, in 1981, the Executive Board ap-

pointed Robert Luizzi to the position of Business

Agent — notwithsanding Luizzi’s criminal rec-

ord. The district court held that Luizzi’s appoint-

ment, and similar appointments, also constituted

part and parcel of the extortion of membership

rights under the Hobbs Act. Further, in 1981, the

Executive Board refused to remove Nunzio Pro-

venzano from office, despite the fact that he had

been convicted in the City-Man case. As noted,

during this period, the four members of the Ex-

ecutive Board who the defendants claim did not

aid and abet the extortionate activities found by

the district court, were active members of the

Board.

Thus, each individual Executive Board

member has aided and abetted in at least two

predicate acts....

(App. C emphasis supplied).

None of these acts dsignated by the Court of Appeals is

unlawful. The appointment of Luizzi as business agent

and the retention of Nunzio Provenzano in office were in

full compliance with LMRDA, 29 U.S.C. 504 (App. 1)

10

and the failure to protest continuing payment of salary

and bonus monies to Anthony Provenzano was ai

best a violation of the fiduciary duties imposed by

LMRDA, 29 U.S.C. 501(a), not a crime.

But on this evidence the Executive Board petitioners

were found to have aided and abetted Hobbs Act viola-

tions, and as “racketeers” were ordered to surrender their

offices in Local 560.

Petitioners urge this Court to read the opinions of the

courts below (App. B and C), which demonstrate — as no

petition with a 30-page limitation could ever do — that the

Executive Board defendants simply “went down with” the

Provenzano Group defendants, in a fashion which cannot

withstand factual or legal analysis.

ARGUMENT

I.

This case presents a question of enormous importance

for the federal judicial system in this country: the standard

of proof to be applied in civil actions brought pursuant to

§ 1964 of the Rocketeer Influenced and Corrupt Organiza-

tion Act of 1970, 18 U.S.C. § 1961 et seg. [RICO]. The

statute itself is conspicuously silent on this point, and it is

widely agreed that its legislative history does little to

resolve the question. See Towers, Burden of Proof in

RICO Actions: Does ‘Sedima’ Provide Guidance? The Na-

tional Law Journal, Dec. 2, 1985 at 26, Col. 1; Strafer,

Massumi & Skolnick, Civil RICO in the Public Interset;

Everybody’s Darling, 19 Am.Crim. L. Rev. 655, 715

(1982). See generally Haroco, Inc. v. American Nat’l Bank

& Trust Co., 747 F.2d 384, 390 (7th Cir. 1984), affd,

U.S. ___., 105 S.Ct. 3291, 878 L.Ed.2d 437 (1985) (“the

1]

legislative history includes relatively little material on

RICO’s private civil remedy”); Sedima, S.P.R.L. v. Imrex

Co., Inc., 741 F.2d 482, 492 (2d Cir. 1984), rev’d, ___

U.S. ___, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (refer-

ring to “[t]he clanging silence of the legislative history”).

This legislative omission has not been cured by the re-

ported decisions discussing the burden of proof in civil

RICO actions, which are few in number and limited in

analysis. Matz, Determining the Standard of Proof in

Lawsuits Brought Under RICO, The National Law Jour-

nal, Oct. 10, 1983, at 3, Col. 3. See, e.g., United States v.

Cappetto, 502 F.2d 1351 (7th Cir. 1974), cert. denied, 420

U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2 395 (1975). This ques-

tion must be answered in the near future, and this case

provides a proper vehicle for doing so.

RICO was enacted in 1970 to combat organized crime.

Russello v. United States, 464 U.S. 16, 26, 104 S.Ct. 296,

302, 78 L.Ed.2d 17, 26 (1983). During the first half of the

ensuing decade, little use was made of its unique criminal

and civil provisions. See 1 K. Brickey, Corporate Criminal

Liability, § 7:01 at 230 n.5 (1984) (“[p]rior to 1975 there

were only six reported RICO [criminal] cases”); Strafer,

Massumi & Skolnick, Civil RICO in the Public Interest;

“Everybody’s Darling,” 19 Am.Crim.L. Rev. 656 (1982)

(“For years, this provision remained a wallflower, but

recently, use of the civil provision has slowly begun to pick

up momentum.”), Sedima, S.P.R.L. v. Imrex Co.,

USS. , n.1, 105 S.Ct. 3275, (“of 270 district court

RICO decisions prior to this year, only 3% (nine cases)

were decided throughout the 1970’s”).

Since 1975, however, literally thousands of civil plain-

tiffs have discovered the advantages of casting their com-

plaint in the form of a civil RICO action. See Towers,

12

Burden of Proof in RICO Actions: Does ‘Sedima’ Provide

Guidance? The National Law Journal, Dec. 2, 1985 at 26

n.3. Given the liberal damages which can be recovered in a

civil RICO action, there is no reason to believe that plain-

tiffs will not continue to bring civil RICO actions in ever-

increasing numbers in the foreseeable future. See 18

U.S.C. § 1964 (c) (“[a]ny person injured in his business or

property by reason of a violation of section 1962 of this

chapter may sue therefore in any appropriate United

States district court and shall recover threefold the

damages he sustains and the cost of the suit, including a

reasonable attorney’s fee”)’ Sedima, S.P.R.L. v. Imrex Co.,

senna OD . , a2, 105 S.Ct. 3275 _.._. .2, 87

L.Ed.2d 346, 376 n.2 (1985) (Powell, J., dissenting)

(“RICO’s provision for treble damages [constitutes] an en-

ticing invitation to litigate [common law] claims in federal

courts”). As Justice Marshall observed in his dissenting

opinion in Sedima:

In the context of civil RICO, however, the

restraining influence of prosecutors is completely

absent. Unlike the Government, private litigants

have no reason to avoid displacing state

common-law remedies. Quite to the contrary,

such litigants, lured by the prospect of treble

damages and attorney’s fees, have a strong incen-

tive to invoke RICO’s provisions whenever they

can...

87 L.Ed.2d at 363-64.

Despite the large and ever-growing volume of civil

RICO suits, the burden of proof required in these actions

remains an open question. The confusion over this issue is

due in part to the fact tht the decisions of this Court con-

cerning evidentiary burdens in civil proceedings have not

been entirely consistent. In Addington v. Texas, 441 U.S.

13

418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323, 329 (1979), the

Court explained that:

The function of a standard of proof... is to

“instruct the factfinder concerning the degree of

confidence our society thinks he shculd have in

the correctness of factual conclusions . . .” The

standard serves to allocate the risk of error be-

tween the litigants and to indicate the relative im-

portance attached to the ultimate decision.

The Court went on to say that the preponderance stan-

dard, which lies at one end of the evidentiary spectrum, is

applied in

the typical civil case involving a monetary

dispute between private parties. Since society has

a minimal concern with the outcome of such

private suits, plaintiffs burden of proof is a mere

preponderance . . . The litigants thus share the

risks of error in roughly equal fashion.

Id. The “reasonable doubt” standard, which occupies the

other end of the spectrum, is applied in criminal cases,

because

the interests of the defendant are of such

magnitude that historically and without any ex-

plicit constitutional requirement they have been

protected by standards of proof designed to ex-

clude as nearly as possible the likelihood of an er-

roneous judgment.

Id. (Footnote omitted) Regarding the intermediate stan-

dard of “clear and convincing proof,” the Court observed

One typical use of [it] is in civil cases involving

allegations of fraud or some other quasi-criminal

wrongdoing by the defendant. The interests at

14

stake in those cases are deemed to be more

substantial than mere loss of money and some

jurisdictions accordingly reduce the risk to the

defendant of having his reputation tarnished er-

roneously by increasing the plaintiffs burden of

proof. Similarly, this court has used the “clear,

unequivocal and convincing” standard to protect

particularly important individual interests in

various civil cases.

Id. at 424, 60 L.Ed.2d at 330 (emphasis supplied).

Although the Court’s language discussing the “clear and

convincing evidence” standard would seem to call for the

use of that standard in civil RICO actions, where a plain-

tiff cannot recover unless the denfendant has been guilty

of criminal misconduct, see also Santosky v. Kramer, 455

U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (“due

process requires that the state support its allegations by at

least clear and convincing evidence” in a proceeding in-

itiated by the state to terminate the rights to natural

parents to retain custody over their children), there is also

support, as noted by the Court of Appeals in this

case (App. D), for using the “preponderance of the

evidence” standard. See Herman & MacLean v. Hud-

dleston, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548

(1983); Steadman v. Securities and Exchange Comm'n,

450 U.S. 91, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981); Vance v.

Terrazas, 444 U.S. 252 (1980), S.E.C. v. C.M. Joiner

Leasing Corp. 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88

(1943); United States v. Regan 232 U.S. 37, 48-49, 34

S.Ct. 213, 58 L.Ed. 494 (1914) (“proof by a preponderance

of the evidence suffices in civil suits involving proof of

acts that expose a party to a criminal prosecution”).

Adding to the confusion, in Sedima, S.P.R.L. v. Imrex

Co., Inc., __. U.S. ___, 105 S.Ct. 3275, 87 L.Ed.2d

346, 356 (1985), although the Court specifically declined

| oh

15

to determine the relevant burden of proof in civil RICO

actions, it seemed to suggest that ihe criminal standard

might apply in private treble damage actions:

. . . [RJequiring conviction of the predicate acts

would not protect against an unfair imposition

of the “racketeer” label. If there is a problem

with thus stigmatizing a garden variety defrauder

by means of a civil action, it is not reduced by

making certain that the defendant is guilty of

fraud beyond a reasonable doubt. Finally, to the

extent an action under § 1964(c) might be con-

sidered quasi-criminal, requiring protections

normally applicable to criminal proceedings, cf.

One 1978 Plymouth Sedan v. Pennsylvania, 380

U.S. 693, 14 L.Ed.2d 170, 85 S.Ct. 1246 (1965),

the solution is to previde those protections, not

to ensure that they were previously afforded by

requiring prior convictions.

(emphasis supp;lied as to last sentence).

The difficulty in determining the appropriate burden of

proof, and thus the need for judicial guidance, is exacer-

vated by the unique nature of the RICO provisions.

Although actions pursuant to 18 U.S.C. § 1964 are

denominated as civil actions, in many ways they are more

akin to criminal proceedings. The treble damageds allow-

ed under § 1964(c) may be much higher in many cases than

the fines authorized in criminal proceedings under the

same statute. Moreover, defendants in a civil RICO action

will be tarred with the stigma of being “racketeers”

regardless of whether they have any affiliation with

organized crime. Most importantly, however, there can be

no civil liability under RICO unless the defendant has

engaged in activity for which he could be held criminally

liable under § 1962. See 18 U.S.C. § 1964(a) & (c). This

16

in itself sets RICO actions apart from other civil pro-

ceedings.

This court should act soon to clarify the burden of

proof in civil RICO actions. Literally thousands of RICO

actions are now approaching trial, see Towers, Burden of

Proof In RICO Actions: Does ‘Sedima’ Provide

Guidance? The National Law Journal, Dec. 2, 1985 at 26

§ n.3, and more are being filed every day. Given the unique

nature of the RICO statute, and the absence of any mean-

ingful guidance in the legislative history, the district courts

will undoubtedly arrive at different conclusions concern-

ing the applicable burden of proof. See United States v.

Cappetto, 502 F.2d 1351 (7th Cir. 1974), cert. denied, 420

U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975)

(preponderance); Matz, Determining the Standard of

Proof in Lawsuits Brought Under RICO, The National

Law Journal, Oct. 10, 1983 at 21, Col. 1 (suggesting ap-

propriateness of “clear and convincing evidence” standard

for the requirement that a civil RICO plaintiff prove a

“pattern of racketeering activity”); Strafer, Massumi &

Skolnick, Civil RICO in the Public Interest: Everybody’s

Darling, 19 Am.Crim.L.Rev. 655, 715-18 (1982) (arguing

that a “clear and convincing” standard would be ap-

propriate for all elements of a civil RICO action); Sedima,

S.P.R.L. v. Imrex Co., Inc., 741 F.2d 482, 501 (2d Cir.

1984), rev’d 473 U.S. , 87 L.Ed.2d 346, 105 S.Ct 3291

(1985) (dictum) (“in the absence of previous convictions a

civil plaintiff must carry a burden equal to that in a

criminal case in proving [the defendant’s] criminal con-

duct”). And even if a uniform rule should emerge, there is

no guarantee that it will reflect the proper burden of proof

to be applied in these cases. If the standard is too high,

plaintiffs by the score will suffer as a result. If the stan-

dard is too low, hundreds, if not thousands, of defendants

17

will suffer unnecessary and improper exposure to poten-

tially crushing awards of treble damages and the pe-

jorative label of “racketeer.”

Delay in determining the relevant burden of proof also

works to the serious disadvantage of the federal judiciary.

Ambiguity concerning one of the most fundamental legal

questions in every RICO action encourages motions and

appeals which will increase the congestion of the federal

courts. Moreover, such basic uncertainty undermines the

incentive to settle such cases out of court. How can parties

evaluate their chances of success at trial when they do not

even know what standard of proof will be required, the

mere “preponderance of evidence” standard used in most

civil actions, the stringent standard of “guilt beyond a

reasonable doubt” applied in criminal actions, or some in-

termediate standard, perhaps “clear and convincing

evidence”?

The case at bar presents an excellent opportunity to

resolve this question in the near future. The issue is clearly

presented, and has been properly preserved at every level

of litigation. The case also provides a good vehicle for

establishing guidelines because it presents the question ad-

dressed in the least virulent of civil actions — when no tre-

bie damages are sought. For these reasons, the court

should grant certiorari in this case.

Il.

Paragraph 12(a) of the Complaint filed in this case

alleged that the defendants had unlawfully acquired and

maintained, both directly and indirectly, an interest in and

control of union Local 560, an “enterprise,” through a pat-

tern of racketeering activity in violation of § 1962(b) of

the Racketeer Influenced and Corrupt Organization Act

18

of 1970, 18 U.S.C. § 1961 et seq. [RICO]. This racketeer-

ing activity allegedly involved murder and the systematic

use of extortion, with the latter consisting of “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 intimation 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.” United States v. Local

560, Int.; Bhd. of Teamsters, 581 F.Supp. 279, 284

(D.N.J. 1984) (App. A) (quoting from the Complaint).

The conduct alleged in the compliant was clearly

covered by the provisions of § 530 of the Labor-

Management Reporting and Disclosure Act of 1959, 29

U.S.C 401 et seq. [LMRDA],? which states in pertinent

part that:

It shall be unlawful for any person through the

use of force or violence, or threat of force or

violence, to restrain, coerce, or intimidate, or at-

tempt to restrain, coerce, or intimidate any

member of a labor organization for the purpose

of interfering with or preventing the exercise of

any right to which he is entitled under the provi-

sions of this chapter.

A violation of § is not a predicate offense for purposes of

establishing a RICO violation. See 18 U.S.C. 1961 (1). Cf.

United States v. Malizia, 720 F.2d 744 (2d Cir. 1983)

? See United States v. Williams, 624 F.2d 75 (9th Cir. 1980); United

States v. Kelly, 545 F.2d 619 (8th Cir. 1976), cert. denied, 430 U.S.

933 (1977); United States v. Roganovich, 318 F.2d 167 (7th Cir.), cert.

denied, 375 U.S. 911 (1963); United States v. Bertucci, 333 F.2d 292

(3d Cir.), cert. denied, 379 U.S. 839 (1964); Tomko v. Hilbert, 288

F.2d 625 (3d Cir. 1961).

19

(N.Y. Penal Law § 180.50 creates a misdemeanor which is

not a RICO predicate crime).

Arguing that § 530 was the only provision of law pro-

hibiting their alleged misconduct, the defendants filed a

12(b)(6) motion seeking dismissal of paragraph 12(a) of

the complaint. This motion was denied on November 12,

1982, on the ground that the alleged extortion, if proved,

constituted a violation of the Hobbs Act, 18 U.S.C.

§ 1951. See United States v. Local 560, Int'l Bhd. of

Teamsters, 550 F. Supp. 511 (D.N.J. 1982) (App. A) The

subsequent finding of Hobbs Act violation by the defend-

ants were upheld on appeal by the United States Court of

Appeals for the Third Circuit. United States v. Local 560,

Int’! Bhd. of Teamsters, 780 F.2d 267 (3d Cir. 1985) (App.

D)

This case involves the first? reported decision addressing

the question of whether the basic rights of union members

guaranteed under the LMRDA constitute extortable pro-

perty for purposes of the Hobbs Act, which defines the

criminal! offense of extortion as “the obtaining of property

from another, with his consent, induced by wrongful use

of actual or threatened force, violence, or fear, or under

color of official right.” 18 U.S.C. § 1951(b)(2). This is a

question of considerable importance, because the answer

determines what criminal sanctions can be invoked against

those who use force or the threat of force to intimidate

union members in the exercise of their rights under the

LMRDA: the relatively mild sanctions authorized by the

3This issue was subsequently considered in Rodonich v. House

Wreckers Union, Civ. No. 82-5583 (S.D.N.Y. Nov. 7, 1985) (available

Feb. 25, 1986, on WESTLAW, QDCT file), also holding that the in-

tangible rights guaranteed by the LMRDA constitute property for

purposes of the Hobbs Act.

20

LMRDA itself, 29 U.S.C. § 530, or the much harsher

penalties of the Hobbs Act and RICO as wsell.

Anyone who willfully violates § 530 of the LMRDA can

be fined up to $1,000.00, or imprisoned for up to one year,

or both. The maximum penalties for violations of the

Hobbs Act are much higher — fine up to $10,000.00, im-

prisonment up to 20 years, or both. 18 U.S.C. § 1951(a).

In addition, since violations of the Hobbs Act are

predicate offenses for RICO, see 18 U.S.C. § 1961(1), the

commission of two or more violations of the Hobbs Act

can result in criminal and civil liability under the latter

Statute.

Criminal penalties under RICO include fines of up to

$25,000 and sentences of up to 20 years. 18 U.S.C. 1963(a)

These are among the harshest penalties in the criminal

code. Blakey & Goldstock, “On the Waterfront:” RICO

and Labor Racketeering, 17 Am.Crim.L.Rev. 341, 349

(1980); see Note, Investing Dirty Money: Section 1962(a)

of the Organized Crime Control Act of 1970, 83 Yale L.J.

1491, 1493 n.16 (1974). Their severity is enhanced by the

fact that most of the circuit courts have held that it is per-

missible to impose cumulative punishment for both RICO

violations and the underlying predicate offenses. See

United States v. Truglio, 731 F.2d 1123, 1230 (4th Cir.),

cert. denied, ___ U.S. ___., 105 S.Ct. 197 (1984); United

States v. Sutton, 700 F.2d 1078, 1081 (6th Cir. 1983);

United States v. Greenleaf, 692 F.2d 1982, 189 (1st Cir.

1982), cert. denied sub nom Bratton v. United States, 460

U.S. 1069 (1983) and Greenleaf v. United States, 460 U.S.

1069 (1983); United States v. Hawkins, 658 F.2d 279, 287

(Sth Cir. 1981); United States v. Dean, 647 F.2d 779, 785

(8th Cir. 1981), cert. denied, 456 U.S. 1006 ( 1982); United

States v. Boylan, 620 F.2d 359, 361 (2d Cir.), cert. denied,

449 U.S. 833 (1980); United States v. Allman, 609 F.2d

21

298, 306 (7th Cir. 1979), cert. denied, 445 U.S. 946 (1980);

United States v. Rone, 598 F.2d 564, 571 (9th Cir. 1979),

cert. denied sub nom Little v. United States, 445 U.S. 946

(1980). See also United States v. Black, 759 F.2d 71, 73-4

(D.C. Cir. 1985) (“government may try a defendant for

RICO violations based, in part, on an offense for which he

has already been convicted”. Finally, the RICO Act also

provides for a broad spectrum of civil remedies including

private treble damage actions and restraining orders such

as those issued in the present case. 18 U.S.C. § 1964(a) &

(c). Thus the decision in this case, affirmed ‘by the Court

of Appeals, that intimidation of union members in the ex-

ercise of their union rights can be prosecuted under the

Hobbs Act, makes possible levels of punishment several

times higher than the penalties authorized by LMRDA, 29

U.S.C. § 530.4

The legislative history of LMRDA makes it very clear,

however, that Congress did not intend for such harsh

penalties to be available for punishing the misconduct pro-

hibited by § 530. Prior to the enactment of LMRDA, there

was considerable disagreement over what should be view-

ed as criminal conduct and what criminal sanctions should

be authorized by the proposed legislation. When the dif-

ferences were finally resolved, § 530 emerged as a section

‘The ability to charge an offense under RICO may enable pro-

secutors to obtain easier verdicts, as well as heavier sentences. Accor-

ding to one writer, the advantages of charging a RICO violation in-

clude “the prejudicial effect on judges and juries resulting from the

use of the pejorative term ‘racketeering’ in RICO indictments.”

Tarlow, RICO: The New Darling of Prosecutor’s Nursery, 49 Ford-

ham L. Rev. 165, 170 (1980). See United States v. Anderson, 626 F.2d

1358, 1361 n.2 (8th Cir. 1980), cert. denied, 450 U.S. 912 (1981) (court

reviewed RICO counts, even though convictions on other counts with

concurrent sentences were affirmed, “tecause of the possible stigma

stemming from the connotations surrounding the offense of

‘racketeering.’ ”).

22

creating a misdemeanor rather than a felony. In discussing

the report of the Joint Conference Committee, Con-

gressman Udall explained the reasons for this policy deci-

sion:

Criminal penalties for forceable interference

with rights guaranteed by the act: This was a ma-

jor dispute between the supporters of the Elliott

and Landrum-Griffin bills during floor debate. It

was the contention of the backers of the Elliott

bill that the Landrum-Gritfin penalties were so

stringent that they might deter honest men from

seeking and holding union office. We argued

that the rights conferred by the act were so

numerous and varied that in most instances the

penalty did not fit the crime with the result that

this sanction would be both harsh and un-

workable. Our argument on this point prevailed

and the Landrum-Griffin bill was quietly amend-

ed so that the drastic felone penalty was reduced

to a misdemeanor. This solution was then

adopted by the conference report.

10% Cong Rec. 18, 135 (1959).

Also illuminating is Representative Griffin’s analysis of

two sections of the Landrum-Griffin bill which were even-

tually adopted as sections 529 and 530 of the LMRDA:

Section 609 of the substitute provides a civil —

not a criminal — remedy, enforcible by the

Secretary of Labor, to protect a union member

from suffering a fine, suspension, or expulsion

because he dares to exercise a right guaranteed

under the act. A comparable provision in the

Senate — passed bill — section 607 (a), approved

by a 90-to-1 vote — would make it a crime fora

union official to fine, suspend, or otherwise

discipline a union member for exercising his

23

rights. Jn putting our substitute together, we

decided to temper the remedy in this instance

because we felt that the conduct proscribed was

roughly comparable to activity under the Na-

tional Labor Relations Act.

Section 610 of our substitute — comparable to

section 607(b) of the Senate bill — would make it

a criminal offense for any person — whether he

be union official or an employer, or anyone else

— to use force or violence, or threats thereof,

willfully for the purpose of depriving any union

member of a right guaranteed to him by the act.

105 Cong.Rec. 15, 530 (1959) (emphasis supplied). Once

again, the concern of the drafters to avoid over-kill in the

sanctions which they authorized is plainly apparent from

the quoted language.

Given the legislative history of § 530, it is clear that this

LMRDA provision was meant for punishing the extortion

of union rights through force or threat of force. More

general extortion statutes such as the Hobbs Act were

simply not intended to apply in cases such as the one at

bar. Cf. Preiser v. Rodriguez, 411 U.S. 475 (1973) (when

prisoners challenge the fact of existence of confinement,

their rights are controlled by the federal habeas corpus

statute, rather than the more general provisions of 28

U.S.C. § 1983). “[T]he principle that gives precedence to

the terms of the more specific statute where a general

statute and a specific statute speak to the same

concern . . . has special cogency where a court is called

upon to determine the extent of punishment to which a

criminal defendant is subject for his transgressions.”

Simpson v. United States, 435 U.S. 6, 15 (1978); see also

United States v. Bates, 429 F.2d 557, 559 (9th Cir. 1970).

The decision in this case permitting LMRDA violations

24

to be chargeable under the Hobbs Acct, if not reversed, will

drastically alter the nature of the penalties which can be

imposed as punishment for the misconduct prohibited by 2

U.S.C. § 530. Such drastic change will thwart the clear in-

tent of Congress, in drafting the LMRDA, to strike a

delicate balance between providing adequate punishment

for transgressions and discouraging rank and file union

members from seeking union office by the threat of harsh

and unworkable sanctions. For these reasons, the Court

should grant certiorari in this case.

III.

The third and fourth issues in this case present a com-

mon question: can acts which are lawful under LMRDA,

standing alone, constitute the factual basis for a finding

that the actors aided and abetted in Hobbs Act violations

committed by the principals?

As noted earlier, the Court of Appeals held that the Ex-

ecutive Board members had each aided and abetted the

commission of two such violations, by virtue of their ap-

pointment of Robert Luizzi (a convicted felon) to the of-

fice of business agent in 1981, their failure to take im-

mediate steps to remove Nunzio Provenzano from union

office upon his conviction of a union-related offense in

1981, and their failure to object to the continuing

payments of pension monies to Anthony Provenzano

from 1979 to 1982 (the pension to Provenzano having been

voted on by the Local 560 membership at a regular

membership meeting held in 1976, and payments begun

when Provenzano permanently retired from the union in

1978 as a result of his incarceration on a murder charge.

The Board members’ appointment of Luizzi was in full

compliance with LMRDA 29 U.S.C.A. § 504; Luizzi’s only

25

criminal convictions, for felonious assault and battery and

felonious breaking and entering, occurred in 1945 and

1949 repectively. Thus there was clearly no statutory

disability barring him from union office in 1981.

The Board members’ failure to immediately remove

Nunzio Provenzano from office upon his conviction of a

crime in 1981 was also in full compliance with § 504; Pro-

venzano had not yet been sentenced, and had not yet pur-

sued his right of appeal, during the brief period of time in-

volved here. (Provenzano’s post-conviction bond was con-

ditioned on his resignation from union office, making his

post-conviction “retention period” a short one.) But again,

during that brief period of time there was clearly no

statutory disability barring him from office.

The continuing pension payments to Anthony Proven-

zano were made pursuant to the union membership’s vote

awarding him such pension, upon motion made and

unanimously passed at a regular memberhsip meeting held

in 1976. That Provenzano was incarcerated at the time he

was paid his pension is hardly relevant to whether he was

entitled to receive these monies. See Winer v. Edison

Brothers Stones Pension Plan, 593 F.2d 307 (8th Cir.

1979) (legislative history of ERISA, 29 U.S.C. § 1001 ef

seq, shows clearly that Congress intended to severely

restrict “bad boy” clauses in pension plans). Thus there

was no statutory impediment under LMRDA, 29 U.S.C.

§ 501(a), to the Executive Board’s payment of Proven-

zano’s pension, when the pension had been authorized by

the union membership, did not violate the union’s con-

stitution, by-laws and resolutions, and did not result in

personal gain to the Board members. McNamara v.

Johnston, 522 F.2d 1157, 1163-64 (7th Cir. 1975), cert.

denied, 425 U.S. 911 (1976).

26

But even assuming arguendo that there was a § 501(a)

failure of fiduciary responsibility on the part of the Ex-

ecutive Board, there is no suggestion by either the District

Court or the Court of Appeals as to how this would

translate into a Hobbs Act violation. Indeed, one may not

be convicted of an LMRDA criminal violation, 29 U.S.C.

§ 501(c) merely because he has breached his civil fiduciary

duties. U.S. v. Snyder, 668 F.2d 686, 691 (2nd Cir. 1982).

These combined issues are very fact specific, requiring a

close reading of the opinions of the Courts below (App. B

and D), but are also significant federal issues which have

not been decided by this Court and are likely to recur in

the highly charged arena of RICO litigation involving

labor unions. The case at bar presents an excellent oppor-

tunity to resolve the issues of whether the acts of union of-

ficers which are lawful under LMRDA, §§ 501(a) and

§ 504, can constitute acts of aiding and abetting an extor-

tion of LMRDA rights under § 411, chargeable under

RICO.

CONCLUSION

For all of the reasons set forth herein, this Court should

27

CONCLUSION

For all of the reasons set forth herein, this Court should

grant the petition for writ of certiorari to the United States

Court of Appeals for the Third Circuit, and should resolve

these issues which are of fundamental importance to the

federal judicial system.

BARBARA H. FLEISHER

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

(304) 344-9651

Counel for Petitioners

PROOF OF SERVICE

I, Barbara H. Fleisher, counsel of record for the peti-

tioners herein, do herby certify and acknowledge that

three (3) copies of the within “Petition for Writ of Cer-

tiorari” were served upon the following individuals, at the

addresses indicated, by first-class mail, postage prepaid,

this 28th day of February, 1986:

W. Hunt Dumont, U.S. Attorney

Thomas L. Weisenbeck, A.U.S.A.

Leopold Laufer, Special Attorney

U.S. Dept. of Justice

Federal Building

Newark, New Jersey 07102

Counsel for Respondent, United States

of America

Solicitor Generai

Department of Justice

Washington, D.C. 20530

Barbara H. Fleisher