Appendix — Local 560 of the International Brotherhood of Teamsters v. United States

‘tis SHPrOMe Court, V.8,

FILER Y

FER RB 1088

IN THE JOSEPH F. — we

UNITED STATES SUPREME cqUR- a

Term

—~ |

S5-¥44e

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),

vb.

UNITED STATES OF AMERICA,

Respondent (Appellee Below).

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

Barbara H. Fleisher

PREISER & WILSON

1012 Kanawha Boulevard, East

Post Office Box 2506

Charleston, West Virginia 25329

(304) 344-9651

Counsel for Petitioners

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

Appendix G:

Appendix H:

Appendix I:

TABLE OF CONTENTS

Page

United States District Court For the Dis-

trict of New Jersey. Opinion | 11/01/82)

‘denving motion to dismiss complaint) A-l

United States District Court for the Dis-

trict of New Jersey Opinion 0:3/08/84)

(findings of fact and conclusions ot law) .... A-2$

United States District Court for the Dis-

trict of New Jersev, Judgment 03/16/54) . A-136

United States Court of Appeals for the

Third Circuit, Opinion | 12/26/85)........ A-135

United States Court of Appeals for the

Third Circuit, Judgment ‘ 12/26/85) ...... A-203

United States Court of Appeals for the

Third Circuit, Order (01/23/86) (sur joint

petition for rehearing)................. A-206

United States Court of Appeals for the

Third Circuit, Order 92/03/86) ‘amending

SA ae ree oe perc uy omen A-209

United States Court of Appeals for the

Third Circuit, Order (2/11/86) | staving

II ro peel ew eas te and A-213

Constitutional Provisions and Statutes ... A-214

l. Title 18, United States Code. Section 2

2. Title 18, United States Code, Section

1962(a)-id)

3. Title 29, United States Code, Section

41]1(ay(l) & (2)

+. Title 29, United States Code, Section

30 1(a)

5. Title 29, United States Code, Section 504

APPENDIX A

UNITED STATES of America, Plaintitf.

W.,

LOCAL 360, etc. et al., Detendants.

Civ. No. $2-689.

United States District Court,

D. New Jersev.

Nov. 1, 1982.

Government brought civil action under Racketeer Influence

and Corrupt Organizations Act against labor union. On motion to

dismiss, the District Court, Harold A. Ackerman, J., held that:

(1) rights guaranteed to union members under the union mem-

bers Bill of Rights are intangible rights within the ambit of the

Hobbs Act; (2) Hobbs Act was not impliedly repealed by portion

of the Labor Management and Disclosure Act; and (3) conduct

which violates the LMRDA may also violate RICO.

Motion denied.

l. Extortion and Threats 4

Evidence is sufficient in a Yobbs Act action if the proot

shows that the victim suffered a loss, although not necessarily

that extortioner received the truits of the extortion, that the ex-

tortioner instilled a tear of econoraic loss in the victim, and that

there was some minimal etfect on commerce. 18 U.S.C.A.

§ 1951(bx2).

2. Labor Relations 51l

Rights created by the Union Members Bill of Rights are not

within the primary jurisdiction of the NLRB. Labor-

Management Reporting and Disclosure Act of 1950, § 101, 29

U.S.C.A. 3 411.

A-l

i)

3. Extortion and Threats

Provision of the Labor-Management Reporting and Disclo-

sure Act making it unlawful to intimidate or coerce anv member

of a labor organization through torce or the threat of violence did

not repeal the Hobbs Act insotar as rights guaranteed bv the

Union Members Bill] of Rights is implicated. Labor-Management

Reporting and Disclosure Act of 1959, $§ 101, 610, 29 U.S.C.A.

$§ 411, 530; 18 U.S.C.A. § 1951.

4. Labor Relations 752

Conduct proscribed bv statute prohibiting coercion or in-

timidation of a union member through violence or the threat of

violence is essentially assault and batterv. Labor-Management

Reporting and Disclosure Act of 1959, § 610, 29 U.S.C.A. § 330.

5. Extortion and Threats 4

Rights guarar teed under the Union Members Bill of Rights

are intangible rights within the ambit of the Hobbs Act. Labor-

Management Reporting and Disclosure Act of 1959, $ LOL. 29

U.S.C.A., § 411; 18 U.S.C.A. § 1951.

6. Commerce §2.5

Conduct which is regulated or proscribed under the Labor-

Management Reporting and Disclosure Act may also violite

RICO. Labor-Management Reporting and Disclosure Act. ot

1959, § LOL et seq., 29 U.S.C.A. § 411 et seg.. LS U.S.C.A.

3§ 1961-1965.

U.S. Dept. of Justice by Thomas Weisenbeck, Sp. Atty..

Newark, N.J., for plaintitf.

Schneider, Cohen. Solomon & DiMarzio by Edward

Cohen, Paul Montalbano, Jersev Citv, N.J., tor detendant. Local

560.

Brenner, New & Brenner by Herbert New, Livingston.

N.J., for defendant, Trucking Emplovees of New Jersey Welfare

Fund.

A-3

OPINION

HAROLD A. ACKERMAN, District Judge.

This civil action brought pursuant to the Racketeer Influ-

ence and Corrupt Organizations Act (RICO)! presents a question

of first impression. The United States charges that Local 560 ot

the International Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America, ( Local 560), together with its

Welfare and Pension Funds ( Funds) and its Severance Pay Plan,

(Plan), is a “captive labor organization.” 2 It principally seeks an

order placing Local 560 under a trusteeship, divesting the indi-

vidual defendants of their interests in the union, and prohibiting

their future involvement in the union's affairs. Local 560, the

Funds and the Plan are named in the complaint as nominal de-

fendants and reterred to collectively as the “Local 3560 Enter-

prise.” Also named as defendants are the current members of the

Executive Board of Local 3560: Salvatore Provenzano, Joseph

Sheridan, Josephine Provenzano Septembre, J. W. Dildine,

Thomas Reynolds, Sr.; Michael Sciarra and Stanley Jaronko: the

trustees and administrators of the Plan: Salvatore Provenzano

and Josephine Provenzano Septembre; the emplovee trustees of

the Funds: Salvatore Provenzano and Thomas Reynolds, Sr.; and

the following individuals: Anthony Provenzano, Nunzio

Provenzano, Stephen Andretta, Thomas Andretta and Gabriel

Briguglio. The government with this court's consent has entered

into stipulations of settlement with Anthony Provenzano’ and

L. Chapter 96 of Title 18, 18 U.S.C. $8 1961-1968. was added to that title

by Title [X of the Organized Crime Control Act ot 1970. Pub. L. 91-452. 54

Stat. 941.

2. The Fund and Plan have been merged and split several times. the two

most recent events being the March 1. 1974 separation of Locals 617 and 641

from the Trucking Emplovees ot North Jersey Welfare Fund (and Pension Plan)

and the May, 4, 1977 merger of the North Jersey Fund and Plan with that of

the Trucking Emplovees of Passiac and Bergen Counties.

3. A consent order was entered bv this court on June 15, 1982 approving

of the terms agreed upon bv the United States and defendant Anthony

Provenzano. That order stated. inter alia—

The defendant be and is herebv permanently enjoined and prohibited

from any form of association with any enterprise (within the meaning of

Section 1961 of Title 18 of the United States Code), which enterprise

A-+

Nunzio Provenzano. + |

The complaint alleges that the Local 569 Enterprise is an

“enterprise within the meaning of 18 U.S.C. 3 1961i4).> It tur-

ther charges that the named individuals are associated under the

leadership ot defendant Anthony Provenzano. | Provenzano

Group), which group allegedly unlawfully conspired. in violation

of 18 U.S.C. § 1962(d), to violate and actually did violate 1%

U.S.C. $ 1962(b) and (c).

The case is presently before me® on the motion of Local 560

pursuant to Fed.R.Civ.P. 12(bi6) to dismiss parazraph 12(a) of

the complaint for failure to set forth a cause of action. A com-

plaint mav only be dismissed pursuant to Fed.R.Civ.P. 12(b)6)

if, accepting the factual allegations of the complaint as true. it

appears bevond a doubt that the plaintiff can prove no set of tacts

which would entitle him to relief. Jamieson cv. Robinson, 641

F.2d 138 (3d Cir. 1981). For the reasons which follow, I am de-

nving the detendant’s motion to dismiss.

In order to understand the thrust ot the defendant's motion. it

is necessarv to outline the structure of this complaint in some detuil

prior to summarizing the arguments raised in the moving papers.

The government alleges in paragraph 12/a) that detendant

Anthony Provenzano and other defendants either associated

with the Provenzano Group or aiding and abetting the same.

violated section 1962(b) of RICO.* Section 1962(b) provides in

pertinent part:

NOTES | Continued)

secks. directly or indirectly, to dominate. control. conduct or othenvise

influence the affairs of anv labor organization or anv empiovee benefit pian

within the meaning of Title 29 of the United States Code:

+. A similar consent order was entered on September 15. 1982 approving

ot the terms agreed upon by the United States and Nunzio Provenzano.

3. 18 U.S.C. § 1961/4) provides:

“enterprise” includes any individual partnership, corporation. .sso-

- ctation, or other legal entitv. and anv union or group ot individuals usso-

ciated in fact although not a legal entity:

6. Subparagraphs 12(a(26). (27) and (28) were added to the compiunt

upon application by the plaintiif for leave to file an ainended complaint pur-

suant to Fed. R.Civ. P. 15(a) granted on September 20. 1962.

T. The complaint also alleges in paragraph 12/b) that the defendants vi-

olated 18 U.S.C. 3 1962(c) of RICO. That portion is nut at issue in this motion.

A-5

It shall be unlawtul for any person through a pattern of rack-

eteering activity. . . to acquire or maintain. directly or in-

directly, anv interest in or control of any enterprise which

is engaged in, or the activities of which affect interstate or

foreign commerce.

“Pattern of racketeering activity is defined as at least two acts of

racketeering activity, within a period of ten vears ‘excluding any

period of imprisonment), one of which has to have occurred atter

the effective date of the Act. 18 U.S.C. $ 1961/5). RICO defines

“racketeering activitv’ by reference to certain crime chargeable

under state law and to certain indictable offenses under federal

law. 18 U.S.C. § 1961(1).°

$. 18 U.S.C. § 1961(1) provides:

“Racketeering activity) means (A) anv act or threat involving murder.

kidnapping, gambling, arson. robbery, briberv, extortion, or dealing in

narcotic or other dangerous drugs, which is chargeable under State law

and punishable bv imprisonment for more than one vear. B) anv act which

is indictable under anv of the following provisions of title 18. United States

Code: Section 201 (relating to bribery), section 234 ‘relating to sports brib-

erv) sections 471, 472, and 473 ‘relating to counterteiting), section 639

‘relating to theft trom interstate shipment) if the act indictable under sec-

tion 659 is felonious. section 664 (relating to embezzlement from pension

and welfare funds). sections 891-894 (relating to extortionate credit trans-

actions), section 1084 (relating to the transmission of gambling informa-

thon), section L341 relating to mail fraud), section 1343 relating to mail

fraud). section 1503 relating to obstruction of justice), section 1510 re-

lating to obstruction of State or local law entorcement), section 1951 re-

lating to interterence with commerce. robberv. or extortion). section 1952

relating to racketeering), section 1953 relating to interstate transporta-

tion of wagering paraphernalia), section 1954 \ relating to unlawtul welfare

fund payments). section 1955 relating to the prohibition of illegal gam-

bling businesses), sections 2314 and 2315 ‘relating to interstate transpor-

tation of stolen property), sections 2341-2346 relating to trafficking in

contraband cigarettes), sections 2421-24 (relating to white slave traffic), .C)

anv act which is indictable under title 29. United States Code. section 186

dealing with restrictions on payments and loans to labor organizations) or

section 50Lic) (relating to embezzlement trom union funds), or |D) anv

offense involving fraud connected with a case under title 11. fraud in the

sale of securities, or the felonious manufacture. importation. receiving,

concealment, buving, selling, or otherwise dealing in narcotic or other

dangerous drugs, punishable under anv law of the United States:

A-6

Paragraph 12(a) charges the “predicate * vifenses ot mur-

der and Hobbs Act extortion, 18 U.S.C. § 1951. as the pattern

through which the defendants unlawtully acquired and main-

tained a controlling interest in the Local 560 Enterprise.

Specifically, the property which is alleged to have been svstemat-

ically extorted was “in the torm of ‘the members) union rights as

guaranteed bv the provisions of sections 157° and 411 ot Title 29.”

The union rights guaranteed bv section 411 were enacted us

Title I of the Labor Management Reporting and Disclosure Act vt

1959 (LMRDA), 29 U.S.C. $§ 411 et seqg., and reterred to as the

“Bill of Rights Members of Labor Organizations.” ‘' [ts emphasis is

9. The statute which satisfies the “racketeering activity” element is com-

moniv called the predicate offense.

LO. 29 U.S.C. 3 L157 is section 7 of the Taft-Hartlev Act. Detendant notes

in its bmef that the plaintif appears to have toregone reliance upon it. [n Cneted

States v Boffa, 686 F 2d 919 (3d Cir. 1982). as discussed infra. the reliance on

that provision as the source of intangible mehts under the mail traud statute was

overtumed. :

Ll. 29 U.S.C. § 411 provides:

ail) Equal mehts—Everv member of a labor organization shall have

equal mghts and privileges within such organization to nominate cundi-

dates, to vote in elections or referendums of the labor organization. to

attend membership meetings. and to participate in the deliberations und

voting upon the business of such meetings. subject to reasonable rules and

regulations in such organization » constitution and bviaws.

2) Freedom ot speech and ssembiv—Every member of anv labor

organization shail have the mght to meet and wsembie freely with other

members. and to express anv views. arguments. or opinions. and to ex-

press at meetings of the labor organization his views. upon candidates in

an election of the labor organization or upon any business property betore

the meeting, subject to the organization s established and reasunabie rules

pertaining to the conduct of meetings. Procided. That nothing herein shail

be construed to impair the right of a labor organization to adopt and en-

force reasonable rules as to the responsibility of everv member toward the

organization as an institution and to his refraining trom conduct tha? would

interfere with its pertormance ot its legal or cuntractual obligations.

(3) Dues, initiation tees. and assessments—Except in the case of a

federation of national or international labor organizations. the rates ot dues

and initiation tees pavable by members of anv labor organization in effect

on September 14, 1969 shail not be increased. and no general or special

assessment shall be levied upon such inembers. except—

(A) in the case of a local labor organization. ©) by majority vote bs

A-

on the nights of union members to freedom of expression

without fear of sanctions bv the union. which in many in-

secret ballot of the members in good standing voting at a general or special

membership ineeting, aiter reasonable notice ot the intention to vote pen

such question, or (ii) by majorty vote ot the members in good standing

voting in a membership referendum conducted by secret ballot. or

B) in the case of a labor organization, other than a local labor orga-

nization or a federation of national or international labor organizations. |

bv majontv vote of the delegates voting at a regular convention, or at a

special convention ot such labor organization held upon not less than thirts

davs written notice to the principal office of each local or constituent labor

organization entitled to such notice. or i) bv majority vote of the members

in good standing ot such labor organization voting in a membership ret-

erendum conducted bv secret ballot. or iii) by majority vote ot the mem-

bers of the executive board or similar governing body of such labor

organization, pursuant to express authority contained in the constitution

and bvlaws of such labor organization, Provided. That such action on the

part of the executive board or similar governing body shall be effective

only until the next regular convention of such labor organization.

4) Protection of the neht to swe—No labor organization shail limit the

nght of anv inember thereof to institute an action in anv court. or in a

proceeding before anv administrative agency, irrespective of whether or

not the labor organization or its otficers are named us defendants or re-

spondents in such action or proceeding, or the right of anv member of a

labor organization to appear as a witness in any judicial, administrative. or

legislative proceeding, or to petition anv legislature or to communicate

with anv leislator: Procided, That anv such member mav be required to

exhaust reasonable hearing procedures but not to exceed a four-month

lapse of time: within such organization, betore instituting legal or admin-

istrative proceedings against such organizations or any officer thereot. And

provided further. That no interested emplover or empiover association

shall directly or indirectly finance. encourage. or participate in. except as

4 party. any such action, proceeding, appearance, or petition.

(3) Safeguards against improper disciplinary action—No member ot

any labor organization may be fined. suspended. expelled. or othernvise

disciplined except for nonpayment ot dues by such organization or bv anv

otficer thereof unless such member has been (A) served with wntten spe-

cific charges: |B) given a reasonable time to prepare his defense: C) a-

forded a full and fair hearing

(b) Any provision of the constitution and bvlaws of anv labor organi-

zation which is incunsistent with the provisions of this section shail be of

no force or effect.

A-S

stances could mean loss of union membership and in turn

loss of livelihood.

Finnegan v. Leu. e.S. 102 $.Ct. L867. 1870.

72 L.Ed.2d 238 (1982). The provision which ultimately was en-

acted as Title | was introduced as a Hoor amendment by Senator

McClellan to the Kennedy Ervin bill, $.1555. 105 Cong. Rec.

5810 idailv ed., Apr. 22.1969) [I NLRB. Leyislative History ot

the Labor-Management Reporting and Disclosure Act ot 1959

‘hereinafter Legis. Hist.) 1102. Senator McClellan believed that

. . we ought to start with the union man, with the worker.

and to relieve him trom the oppression which has been

thrust upon him in some places. We should restore to him

his rights. We should vest in him again the power to do

something to protect his rights. W2 must give him the au-

thority again to run his own union. We must pass a law. such

as the measure now proposed, which will enable him to pre-

vent usurpation by would-be exploiters. Let us start to help

the worker.

105 Cong. Rec. 3818 (daily ed. Apr. 22, 1959), II Legis. Hist.

11056. The amendment passed bv a slim maryin of 47 to 46. 105

Cong. Rec. 5827 daily ed. Apr. 22. 1959) II Legis. Hist. 11158. See

generally United Steelworkers of America cv. Sadlowski.

U.S. 102 $.Ct. 2339, 2342, 72 L.Ed.2d 707 1982).

The particular acts of the defendants which allegedlv cre-

ated the climate of intimidation which in turn induced the sur-

render ot the members’ rights are included as subparagraphs |

through (28) of paragraph 12(u). The specific acts alleged. are: 1

the June 1961 murder of Anthony Castellitto: (2) the August 1961

appointment of Salvatore Provenzano to the position of Trustee

formerly occupied bv Casteilitto: (3) the September 1961 ap-

pointment of Salvatore Briguglio—the alleged murderer ot

Castellitto—to the position of Business Agent; (+) the February

1963 appoin*mer t of Nunzio Provenzano to the position ot Busi-

ness Agent follewing his January 1963 conviction for extortion:

(5) the May 1963 murder of Walter Glockner: (6) the 1964 ap-

pointment of Robert A. Luizzi to the position of Business Agent

A-9

in spite ot a record of criminal convictions: \7) the May 1967

appointment of Luizzi to the position of Trustee: |S) the February

1969 appointment of Salvatore Briguylio to position of Business

Agent tollowing completion of a term of imprisonment for ex-

tortion; (9) the April 1969 appointment of Nunzio Provenzano to

the position of clerk following completion otf a term of impris-

onment tor extortion; (10) the 1970 appointment of Nunzio

Provenzano to the position of Business Agent; (11) the 1971 ap-

pointment of Thomas Reynolds, Sr. to the position of Business

Agent in spite of a record of criminal activity; :12) the 1972 up-

pointment of Nunzio Provenzano to the pusition of Fund

Trustee; (13) the 1972 appointment of Salvatore Briguglio to the

position of Fund Trustee; (14) the allowance of trequent visita-

tions by Armand Faugno and Thomas Andrette to the offices ot

Local 560; (15) the January 1963 appointment of Nunzio

Provenzano to the position of Secretarv-Treasurer; (16) the 1973

appointment of Reynolds to the position of Fund Trustee; : i7)

the 1974 resumption of duties as Business Agent bv Salvatore

Briguglio following completion of a term of imprisonment for

counterteiting; (18) the 1974 appointment of Luizzi to the posi-

tion of Fund Trustee: (19) the November 1975 appointments of

Anthony and Nunzio Provenzano to the positions of Secretarv-

Treasurer and President, respectively. in spite of a record of con-

victions tor extortion; (20) the February 1977 appointment ot

Reynolds to the position of Trustee; (21) the July 1978 appoint-

ment of Josephine Provenzano Septembre to the position ot

Secretarv-Treasurer following Anthony Provenzano’s conviction

for the Cuastellitto murder; (22) the July 1981 appointment of

Salvatore Provenzano to the position of President tollowing

Nunzio Provenzanos torced resignation as a condition of bail on

a labor racketeering conviction; (23) the Executive Board’s tail-

ure to recover monies wrongtully converted by Anthony

Provenzano; (24) the retention of Marvin Zalak as Fund Admin-

istrator in spite of payments accepted by him from an insurance

company representativ: during the 1960's; (25) the retention of

Ralph Torraco as the Fund’s independent certified public ac-

countant in spite of his federal indictment for systematically

overbilling the Fund; (26) the extortion of contributions to the

A-10

defense funds of the Provenzanos and Michael Sctarra trom

union members: (27) the 1981 appointment ot Luizzi to the po-

sition of Business Agent: and :28) associations by some of the

defendants with Frank “Funzi” Tieri and Matteo Alfredo Iunni-

ello, reputed organized crime members.

Defendant Local 560 in moving to dismiss paragraph 12(u:

contends that the rights guaranteed bv section 411 are not “prop-

erty” extortable under the Hobbs Act. The argument is premised

on two propositions. the correctness of either of which will en-

title the defendant to the dismissal of this portion of the com-

plaint; first, that the concept of “property under the Hobbs Act

does not embrace the rights created under section 101 of the

LMRDA; and second, to the extent that these rights are extort-

able, that the LMRDA provides the exclusive criminal sanction

for such a violation. See 29 U.S.C. $530. !-

The government argues that section 610 of the LMRDA is

not the exclusive remedy for extortionate taking of section 411

rights. The LMRDA. it contends. neither expressly nor

impliedlv repealed the Hobbs Act's application to conduct which

might also violate sections ot the LMRDA because Congress did

not intend the LMRDA to be exclusive. The government further

submits that section 330 does not prohibit the conduct alleged in

the complaint because it is essentially an assualt and battery stat-

ute.

12. 29 U.S.C. 3330 entitled “Depnvaton ot Rights by violence. penalty |

provides:

[t shall be unlawtul tor any person through the use of force or violence. or

threat ot the use of force or violence. to restrain. coerce. or intimidate. or

attempt to restrain. cverce. or intimidate anv inember of a labor organi-

zation tor the purpose ot intertering with or preventing the exercise of ans

night to which he is entitled under the provisions of this chapter. Anv

person who wiilfully violates this section shall be fined not more than

$1.000 or imprisoned for not more than one vear. or both.

29 U.S.C. $529 makes it unlawtul for anv labor organization, officer or em-

plovee to “fine, suspend, expel, or otherwise discipline” a rember for exer-

cising any rights granted under the LMRDA. The remedy provided is a civil

one.

A-1ll

A review of some of the history preceding the enactment ot

the Hobbs Act and the LMRDA will be helptul for an under-

standing of the issues raised in this motion. The precursor to the

Hobbs Act was the Anti-Racketeering Act of 1934. It was de-

signed to penalize extortion and racketeering and to protect com-

merce against interference bv threats and violence. Annot., 4

A.L.R. Fed. 881, 890 (1970). In 1942, the Supreme Court nar-

rowly construed the provisions of the Anti-Racketeering Act to

exclude from its extortion coverage certain labor activities. Con-

gress thereafter enacted the Hobbs Act in reaction to that deci-

sion in order to implement its intentions to curb labor

racketeering. While aimed at labor racketeering, its broad terms

cover a field comparable to existing state extortion statutes. See

generally United States v. Harding, 363 F.2d 299, 302-04 6th

Cir. 1977) cert. denied, 434 U.S. 1062, 98 S.Ct. 1285, 55

L. Ed.2d 762 (1978).

The LMRDA, in addition to the Bill of Rights of Title I dis-

cussed earlier, contained five titles designed primarily to achieve

internal union democracy with one additional title covering

amendments to the Taft-Hartlev Act. It included comprehensive

reporting requirements, 29 U.S.C. $$431-41; regulation of the

imposition of trusteeships over subordinate labor organizations.

29 U.S.C. §$$461-66; the establishment of election procedures.

29 U.S.C. $$481-82: safeguards in the torm of fiduciarv standards

amd responsibilities tor officers, 29 U.S.C. §§501-04: and nu-

merous civil, administrative, and criminal enforcement provi-

sions. The congressional debate centered primarily upon the

Tatt-Hartley Amendments. For a discussion of the controversy

surrounding its passage, see A.B. A. The Developing Labor Law.

49-59 (1971).

In analyzing the interplay between the Hobbs Act and the

LMRDA, I take guidance from the » cent opinion of the Third

Circuit Court of Appeals in United States v. Boffa, 688 F.2d 919

(1982). In Boffa, this Circuit found, on the one hand. that the

RICO predicate act of mail fraud, 18 U.S.C. $1341. may encom-

pass a scheme to deprive union members of the right to the hon-

est and faithful services of union officials provided in section 301

of the LMRDA, 29 U.S.C. $501, but mav not, on the other hand,

A-12

encompass a scheme to deprive emplovees of rights created by

section 7 of the National Labor Relations Act :NLRA) 29 U.S.C.

$157. The dichotomy of treatment given these statutes is instruc-

tive.

In Boffa the defendants Eugene Botfa. Sr.. Robert Botfa.

Sr.. and Chandler Lemon wiho operated labor leasing businesses

switched labor leasing contracts they had with certain facilities

from corporations they controlled to others ostensibly indepen-

dent but which they also controlled for the purpose ot lowering

wages paid and/or increasing fees charged. The detendants as-

sured themselves of the cooperation of defendant Francis

Sheeran who was the president of the local Teamsters union

which represented some of the leased drivers by delivering

money or some other thing of value to him vio:ation of the Tuatt-

Hartlev Act, 29 U.S.C. $196(a\(4). The mailing of the notices of

termination to the employee, drivers in furtherance of the

scheme tormed the basis of the mail fraud indictments. At

924-925. ‘

In examining the contentions of the appellants that the labor

switches were, at most. unfair labor practices, the Third Circuit

first reviewed the statutory coverage of the mail fraud statute to

find that in general “a scheme to deprive persons of intangible

rights or interests may be within the ambit of 18 U.S.C. $1341.”

[d. at 927. However, in order to discern whether any tederal

statute in particular can serve as the source of an intangible right

in a mail fraud prosecution, the court examined the language and

legislative historv of the federal statute. Chiet Judge Seitz stated:

As a matter of statutory construction we are unwilling to

sanction mail fraud prosecutions for schemes to deprive in-

dividuals of a particular intangible right when such a pros-

ecution would contravene the intent of the Congress that

created that right.

Id. at 926. The court t’ierefore inquired into the congressional

policies underlying the NLRA and the LMRDA, the two sources

of the rights allegedly defrauded by the defendants.

A-13

Two policies underlying the NLRA were tound particularly

pertinent in Boffa: “the remedial nature of the Act and the pri-

macy of the National Labor Relations Board in resolving untair

labor practice disputes.” [d. at 927. The legislative history

evinced Congress's intent that “violations of the civil provisions

of the Act were to be without criminal consequences.” [d. at 925,

The Third Circuit. relving upon Republic Steel Corp. cv. NLRB.

311 U.S. 7, 11, 61 S.Ct. 77, 79, $5, L.Ed. 6 (1940), emphasized

that the Act’s remedial measures “relate to the protection ot the

emplovees and the redress of their grievances, not to the redress

of any supposed public injurv... . “ Id.

The exclusive authority of the Board to decide what consti-

tutes an unfair labor practice was also considered in Boffa to be

pertinent in ascertaining the scope of the mail fraud statute. The

court stated:

We believe the ‘overriding interest in.a uniform, nationwide

interpretation of the federal statute by the centralized ex-

pert agency created bv Congress’, New York Telephone Co.

u. New York Labor Department, +40 U.S. 519, 528 [99

S.Ct. 1829, 1834, 59 L.Ed.2d 353] (1979), casts serious

doubt on the proposition that Congress intended schemes to

detraud emplovees of section 7 rights to fall within the ambit

of the mail fraud statute.

688 F.2d at 929. [t held on the basis of these two congressional

policies that such a scheme does not constitute mail fraud.

The RICO indictment in Boffa, as I indicated earlier. also

alleged that the defendants Botta and Lemon had violated the

mail fraud statute through a scheme to deprive emplovees ot the

loval, faithful, and honest services Uf their union president. de-

fendant Sheeran. The Third Circuit's analvsis of whether the

mail fraud statute could encompass these rights paralleled that of

the NLRA rights and is especially instructive of the issue betore

me.

Section 501(a) of the LMRDA was found to impose fiduciary

responsibilities upon union officials and to establish a corre-

sponding right in the members to the honest and faithful services

of union officials. [d. at 930-991. The court defined this as an

A-l4

“intangible right” and examined the legislative history tor indi-

cations as to whether prosecution tor schemes to detraud em-

plovees of their rights under section 501 would contravene anv

congressional policy. It found no such indications pointing to the

fact that the remedy under section 301 merely permits a union

member to bring an action against officials who breach their f-

duciarv dutv but not against emplovers or third parties. [t went

on to hold:

This remedy was clearly not intended to be exclusive. See

29 U.S.C. $413 (nothing in this title ‘shall limit the rights

and remedies cf anv member of a labor organization under

State or Federal law or betore anv other court or tribunal’:

Cox, Labor Law Preemption Revisted. $5 Harv.L. Rev.

1937, 1371 (1972) (Congress has never developed a com-

prehensive and impliedly exclusive plan of federal regula-

tion for union-member relations.”). . . In short, there is no

indication that prosecutions for schemes to defraud emplov-

ers of the intanuible right provided in 29 U.S.C. $501 would

contravene any congressional policv. See United States v.

Stout, 499 F.Supp. 602 (E.D. Pa. 1980) (LMRDA does not

preclude mail fraud prosecution for union official’s scheme

to detraud his labor union. }

[d. at 931. Therefore, the court concluded that section 301 rights

are within the scope of the mail fraud statute. /d. at 931.”

The issue raised by Local 560s motion to dismiss is whether

section 411 rights are within the ambit of the Hobbs Act. With

Boffa as a guide, | turn now to this issue. The Hobbs Act. 18

U.S.C. 319514 forbids interference with commerce bv extor-

13. The court also considered and rejected defendants argument that “bv

enacting the NLRA. Congress intended to work an implied repeal of existing

federal criminal statutes insotar as they regulate ‘arguably prohibited’ con-

duct.” Boffa. supra, 688 F 2d at 932.

14. 18 U.S.C.A. $195 1a) provides:

(a) Whoever in anv way or degree obstructs, delavs. or affects cuin-

merce or the movement of anv article or commodity in commerce. '»v

robberv or extortion of attempts or conspires so to do. or commits or

A-15

tion. The Act defines “extortion to mean “the obtaining of prop-

ertv trom another, with his consent. induced by wrongtul use ot

actual or threatened force. violence. or tear’. . 1S U.S.C.

$1951(bv2). The essertial elements of a Hobbs Act violation.

theretore. are—

(1) that the defendants induce their victims to part with

property. (2) that they do so through the use of fear. and 3)

that, in so doing, thev adversely affect interstate commerce.

United States v. Addonizio, 451 F.2d 49, 59 3d Cir.) cert. de-

nied, 405 U.S. 1048, 92 §.Ct. 1909, $1 L.Ed.2d 391 | 1972).

(1] The Hobbs Act has been construed broadlv so as to im-

plement Congress s purpose “to use all the constitutional power

Congress has to punish interference with interstate commerce

by extortion. . .” Stirone v. United States, 361 U.S. 212, 215.

80 §.Ct. 270, 272. 4 L.Ed.2d 252 (1959). For example, with re-

spect to each of the aforementioned elements, it is sufficient if

the proofs show (1) that the victim suffered a loss but not nec-

e: sarily that the extortioner received the fruits of the extortion.

United States v. Provenzano. 334 F.2d 678, 686 (3d Cir.) cert.

denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 344 : 1964): . 2)

that the extortioner instilled in the victim a fear of economic loss.

Addonizio, supra, 451 F.2d at 72; United States v. Sweeney, 262

F.2d 272 (3d Cir.1959); and (3) that there was some minimal

effect on commerce. United States cv. Cerilli, 603 F.2d 415, 424

(3d Cir. 1979) cert. denied. 444 U.S. 1043. 100 S.Ct. 72S. 62

L.Ed.2d 728 (1980).

Courts have upheld Hobbs Act extortion prosecutions based

on the loss not only of tangible property but also of intangible

“property rights. See United States v. Santoni, 385 F.2d 667.

673 (4th Cir. 1978) cert. denied, 440 U.S. 910, 99 S.Ct. 1221. 39

L.Ed.2d 459 (1979) (right to make business decision free trom

outside pressure); United States v. Nadaline. 471 F.2d 340, 344

(5th Cir.) cert. denied, 411 U.S. 951. 93 S.Ct. 1924. 36 L. Ed.2d

414 (1928) (right to solicit business accounts and hire business

threatens physical violence to anv person or property in furtherance of a

plan or purpose to do anvthing in violation of this section shall be fined not

more than $10,000 or imprisoned not more than twenty vears. or both.

A-16

representatives): United States v. Tropiano, 418 F.2d 1069.

1975-76 (2nd Cir. 1969) cert. denied, 397 U.S. 1021, 90 S.Ct.

1258, 25 L.Ed.2d 580 : 1970) (right to solicit business accounts):

Bianchi vc. United States, 219 F.2d 182. 189 ‘Sth Cir. cert. cde-

nied, 349 U.S. 915. 75 S.Ct. 604, 99 L.Ed. 1249 (1955) rights

under construction contract): United States cv. Stofsky, 409

F.Supp. 609, 615 (S.D.N.Y. 1979) ‘right to solicit business). The

complaint at issue, as stated earlier, alleges that the property

extorted was the members rights conterred by 29 U.S.C. $411.

In this instance, the LMIRDA is the source of such intangible

rights. I must theretore determine whether in enacting the

LMRDA Congress intended this intangible right to be outside

the ambit of the Hobbs Act. Boffa, supra. 688 F.2d at 926-927.

(2] Section 411, as stated earlier, was eracted by Congress

as the central provision ot Title I of the LMRDA. creating a “Bill

of Rights of Members of Labor Organizations.” Title I also gives

to union members a direct cause of action against the union and

its officers tor infringement ct these rights. 29 U.S.C. $412. Any

pre-existing state or federal remedies are explicitly preserved bv

this Title. 29 U.S.C. $413. See Maier v. Patterson, 511 F.Supp.

436 (E.D. Pa. 1981). These rights therefore are not within the pri-

marv jurisdiction of the National Labor Relations Board. See

Fulton Lodge No. 2 of Internat'l Ass'n of Machinists and Aero-

space Workers v. Nix. 415 F.2d 212 (5th Cir. 1969). Under the

teaching of Boffa, these characteristics are clearly indicative ot a

nonexclusive statutorv scheme. Furthermore, the LMRDA con-

tains a second and broader saving provision applicable to the

entire act:

Except as explicitly provided to the contrarv. nothing

in this chapter shall reduce or limit the responsibilities of

anv labor organization or anv officer. agent. shop steward.

or other representative otf a labor organization. or of anv

trust in which a labor organization is interested, under any

other Federal lav’ or under the laws of any State. and. ex-

cept as explicitly provided to the contrary, nothing in this

chapter shall take away any right or bar any remedy to

A-1l%

which members of a labor organization are entitled under

such other Federal law or law of any State. ‘Emphasis

added)

29 U.S.C. §523(a).

The LMRDA is not an © ‘impliedly exclusive plan of federal

regulation for union-member relations. “ Boffa, supra. 655

F.2d at 931 (quoting Cox, Labor Law Preemption Revisited, $5

Harv. L. Rev. 1337, 1372 (1972)). The congressional declaration

of findings, purposes and policy which pretaces the LMRDA

clearly establishes the role this legislation is to plav in the larger

scheme of labor law:

The Congress further finds, from recent investigations

in the labor and management fields, that there have been a

number of instances of breach of trust, corruption, disregard

of the rights of individual emplovees, and other tailures to

observe high standards of responsibility and ethical conduct

which require further and supplementary legislation that

will afford necessary protectior of the rights and interests of

emplovees and the public generally as they relate to the

activities of labor organizations, emplovers, labor relations,

consultants, and their officers and representatives. ‘Empha-

sis added)

29 U.S.C. $401(b).'5 Therefore. there is no indication that pros-

15. Senator Coidwater also refected on the supplementary nature ot the

LMRDA and its interaction with the Hobbs Act:

Criminal procedures are surrounded with safeguards for the accused.

and are inevitably, slow. cumbersome. uncertain. We do not wish to de-

strov these safeguards. thev are a necessary part of our traditional system

ot civil liberties and protection against judicial and governmental tvrannvy.

But we cannot escape the fact that the requirement of an indictment by a

grand jury, the availability of the fifth amendment. the need for proot

hevond a reasonable doubt, the right to a jury tral. the rigid rules of

evidence, all of which prevail in a criminal prosecution. render this tvpe

of sanction an awkward and often ineffectual weapon against misconduct in

the labor-management field.

There are now on the Federal statutes books three laws in the field

of labor which utilize the methods of the criminal prosecution.

o 7 . . 7 ® - -

A-18

ecutions for conduct which extorts from members the intangible

right provided in 29 U.S.C. $411 would contravene any cuon-

gressional policy.

(3] The defendant also asserts a distinct but related ground

for dismissal of paragraph 12(a). [t argues that the conduct al-

leged in the complaint is embraced bv a specific criminal pro-

vision of the LMRDA, 29 U.S.C. $530. which precludes

application of the Hobbs Act. Plaintiff responds that the two stat-

utes do not cover the same ground. It further argues that even

if they did, section 330 cannot be read to repeal the Hobbs Act

insofar as extortion of section 411 rights is implicated. I find that

section 3530 is not an extortion statute and that the principle ot

statutory construction of implied repeualer is inapplicable.

Section 330 provides:

It shall be unlawtul for anv person through the use ot force

or violence, or threat of the use of force or violence. to re-

strain, coerce, or intimidate. or attempt to restrain, coerce.

or intimidate anv 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 provisions of this

chapter.

NOTES | Continued)

The third instance is the Hobbs Act. which

a ee ee ee

is designed to reach many of the practices engaged in by the Teamsters us

disclosed bv the McClellan hearings, vet. as those hearings conclusivels

demonstrate, these vicious practices go merrily on despite the Hobbs Act.

Thus. it is evident bevond any reasonable doubt that criminal pro-

ceedings are not the proper machinerv tor cleaning up the abuses in the

labor-management field. And incidentally. we should recognize the wis-

dom of the Congress in deliberately avoiding the criminal law approach in

favor of administrative sanctions when it enacted the Wagner and Tuit-

Hartley Acts to cope with the evils at which those statutes were aimed.

However, we do not wish to eliminate these :mminal sanctions but rather

to supplement them. thus providing a well-r »unded and effective entorce-

ment machinerv which would give genuine vitalitv to those few rights

which the committee bill confers.

105 Cong. Rec. 9110 :dailv ed. June $, 1959) UI Legis. Hist. 122.

A-19

The penalty is a fine of $1,000 and/or imprisonment tor a term ot

not more than one vear.

The provision as enacted represented a compromise be-

tween the House and Senate versions of the Act. The Senate. as

noted earlier, passed the Kennedy-Ervin bill, $.1555, of which

section 506(b) made it unlawtul tor anv person to restrain, coerce

or intimidate anv member “through the use of force or violence.

or threat of the use of force or violence, or by economic reprisal

or threat thereof.” (Emphasis added). A violation ot this provi-

sion was made a felony with a maximum penalty of $10.000 or

imprisonment for not more than 2 vears or both. A bill intro-

duced in the House by Rep. Landrum and Rep. Griffin. H.R.

8400, as a substitute for the House bill reported out of commit-

tee, H.R. 8342, provided for the same penalty as the Senate bill

but did not include the language on economic reprisal empha-

sized above. The Landrum-Gritfin bill was substituted on the

floor of the House only after it was amended, inter alia, to reduce

these criminal penalties to a maximum imprisonment of one vear

and a fine of $1,000.'* In the conference committee, the House

version was adopted on this point.

The reason for the deletion of the phrase “economic re-

prisal” by the House, and some clue as to its significance, is

tound in the remarks and analysis of Rep. Griffin:

Section 610 (denial of rights through violence!: Like the pre-

vious section, this section deals with the denial of rights

guaranteed to union members. However, unlike section

609, this section applied to the denial of such rights through

torce or violence. Criminal penalties in this case are justified

and, accordingly, are provided. Section 610 is comparable

to section 607(b) of S. 1555, which was stricken bv the House

committee. However, the words “or bv economic reprisal or

threat thereof” in the Senate-passed bill are omitted in the

substitute. We believe the quoted language too vague for

i6. 105 Cong. Rec. 14513 (daily ed. Aug. 13. 1959) II Legis. Hist. 1685.

A-20

criminal entorcement and, further, that the activity pro-

scribed is covered, and should be prohibited, under the

phrase “or otherwise discipline’ in section 609 where civil

remedies are available for entorcement.

105 Cong. Rec. 13091 ‘daily ed. July 27, 1959), II Lewis. Hist.

1522 (1959). The sanction as passed bv the Senate and originally

included in the Landrum-Gritfin bill was considered too harsh:

This was a major dispute between the supporters of the

Elliott and Landrum-Griffin bills during floor debate. [t was

the contention of the backers of the Elliott biil that the

Landrum-Gniffin penalties were so stringent that thev

might deter honest men from seeking and holding union

office. We argued that the rights conferred bv 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 unworkable. Our argument on this point

prevailed and the Landrum-Griffin bill was quietly

amended so that the drastic telony penaltv was reduced to

a misdemeanor. This solution was then adopted bv the con-

ference report.

105 Cong. Rec. 16637 daily ed. Sept. 4. 1959) (remarks of Rep.

Udall), [1 Legis. Hist. 1722. Detendant contends that section 330

was thus enacted as a misdemeanor extortion provision specially

tailored to the purposes of the LMRDA. | disagree.

(+] As the preceding review of the legislative history indi-

cates and the cases construing section 530 confirm, the conduct

proscribed by this provision of the LMRDA is essentially assault

and batterv. See United States v. Williams, 624 F.2d 75 (9th Cir.

1980) (defendant hired someone to assault member in retaliation

for outspoken opposition); United States v. Kelley, 345 F.2d 619

(8th Cir. 1976) cert. denied, 430 U.S. 983, 97 S.Ct. 1555, 51

L. Ed.2d 777 (1977) (defendant threw a bat and fired three shots

at truck containing dissatisfied members who were circulating a

petition); United States v. Bertucci, 333 F.2d 292 (3d Cir.) cert.

denied, 879 U.S. 839, 85 S.Ct. 75, 13 L.Ed.2d 45 (1964) (braw!

found to have arisen out of conspiracy to prevent members from

A-21

exercising right to attend and participate in meeting). Cnited

States v. Roganovich, 31S F.2d 167 (7th Cir. 1963) disturbance

at a local union meeting over criticism of report of business

agent); Maier, supra, 311 F.Supp. 436. E.D. Pa. 1981) genuine

issue of material fact as to whether assault was tor purpose of

chilling section 411 rights). In accord is the view of Senator

Morse who, in opposing the passage of section 330, com-

mented—

(T]he conterence committee bill would make it a Fed-

eral crime to use force or the threat of force to prevent a

member, bv intimidation, from exercising rights to which

he is entitled under the bill. A similar provision was in-

cluded in section 607/b) of the Kennedv-Ervin bill. as

passed by the Senate. The Kennedv-Ervin bill. however.

prohibited economic reprisal, as well as the use of force or

the threat of force, and imposed substantially heavier pen-

alties for violations than does the conterence committee bill.

Generally speaking, the effect of these provisions is to make

assault and battery a Federai crime, but only when it occurs

in a union. I have already reterred above to the inappro-

priateness of provisions of this tvpe for the entorcement of

the rights of union members. (Emphasis added)

105 Cong. Rec. 16389 ‘daily ed. Sept. 3. 1959), II Lewis. Hist.

1418.'* For these reasons, | do not find. as detendant contends.

LT. This is turther confirmed bv a review ot the hearings recently held on

the proposed Labor Nianagement Racketeering Act ot L9SL. S. 1755. Sen. Bill

1786 proposes to toughen certain provisions of the Tatt-Hartley Act. the

LMRDA and ERISA. S.Rep. No. 97-497 introduced the bill thu—

The purpose of this bill is to afford greater protection for unions and em-

plovee benefit plans from corrupt union and management officials bv in-

creasing the penalties for violating portions of three statutes—the Labor

Management Relations Act of 1947, known us the Tatt-Hartlev Act. the

Emplovee Retirement Income Security Act of 1974. known as “ERISA’.

and the Labor-Management Reporting and Disclosure Act of 1969. known

as the Landrum-Gniflin Act. The bill is a direct outgrowth of public hear-

ings held before the Permanent Subcommittee on Investigations.

One of the provisions of the bill would expand the list of generic crimes which

qualify a person from serving in a fiduciarv capacity under the LMRDA. 29

|

A-22

that section 330 is an extortion statute.

When compared to the prohibition within the LMRDA

against extortionate picketing, 29 U.S.C. $522.'° it becomes

even clearer that Conzress carefully chose the words it did and

the penaltv to be imposed in section 330 in order to penalize

labor extortion in the one instance but not in the other. Senator

John F. Kennedy commented on the relationship between the

Hobbs Act and extortionate picketing provision which became

section 522:

Under the provisions of the Kennedy-Ervin hill last

vear we provided that anvone who engaged in picketing tor

NOTES / Continued)

U.S.C. $504. to parallel the list contained in a similar provision under the

E:inplovment Retirement Income Security Act. 29 U.S.C. $1111. In its exam-

ination of the effect of the bill's amendments. the Office of Leuislative Affairs

of the United States Department of Justice was of the view that:

The list of specific cries in Section 111 would also provide new protection

under Section 504 with respect to persons convicted of the fullowing stat-

utory crimes:

on * * * * *

3) those deprivations of union members nghts through the threut-

ened use of violence in violation of 29 U.S.C. 330 which could not oth-

erwise he characterized as murder. assault with intent to kill. or assault

which inflicts gnevous bodily injury: Emphasis added)

Heanng before the Subcomm. on Labor of the Senate Comm. on Labor and

Human Resources on S. 1735. 97th Cong.. 2d Sess. 73 1962). As section 504.

in addition to murder..ctc.. disqualifies persons who have been convicted ot

extortion, the Justice Department s enumeration supports my construction ot

section 330 as an assault and buatterv statute.

ls. 29 U.S.C. $522 entitled “Extortionate picketing; penuitv for violation ©

provides:

a) it shal be unlawful to carrv on pickering on or about the premises

of anv empilover for the purpose of. or as part of anv conspiracy or in

furtherance of anv plan ur purpose for. the personal profit or ennchment

of anv individual (except a bona fide increase in wages or other « mpiovee

benefits) by taking or vbtaining anv money or other thing of salue from

such emplover against his will or with his consent. ;

‘bi Any person who willfully violates this section shail be fined not

more than $10,000 of imprisoned not more than twenty vears. or both.

A-25

the purpose of a shakedown should be guilty of an untair

|,bor practice. That was an additional remedy, to be avail-

able in addition to the Hobbs Act.

There has alwavs been some question as to whether the

Hobbs Act applied to cases in which violence did not take

place. In addition, this provision provided a quicker rem-

edy. It provided for compulsory immediate injunction.

while the criminal prosecution might be going on.

There was some objection to making this practice an

untair labor practice. and a felony rather than a misde-

meanor. The Department of Justice raised the question 3 or

4 davs ago as to whether this provision might not raise some

question as to the sanctions available under the Hobbs Act.

Therefore. in order to make sure that there is no choice of

sanctions, as between those which might be misdemeanors

and those which might be felonies, the amendment is now

rewritten, so that the sanctions against using a picket line for

the purposes of extorting money are now identical with

those under the Hobbs Act.

This provision would not weaken or change the Hobbs

Act. It would merely provide that when there is anv ques-

tion as to whether the Hobbs Act applies in cases in which

violence does not occur, as in the case of shakedown pick-

eting, adequate sanctions are provided, This language is in

accordance with the views of the Department ot Justice

106 Cong. Rec. 3861 ‘daily ed. Apr. 23, 1969), II Legis. Hist 11:35.

In enacting section 522, therefore, Congress was ensuring one.

that extortion would be construed to include nonviolent conduct

and two, that that section would operate in tandem with the

Hobbs Act. Tis leads to the other point raised by the parties.

whether both the Hobbs Act and section 530 can apply to con-

duct which infringes upon section 411 rights.

While the detendant refrains from resting upon the dista-

vored principle of implied repealer, Posadas v. National City

Bank, 296 U.S. 497, 504-05. 56 S.Ct. 349, 352-353, $0 L.Ed. 351

(1986), to sav that section 530 preempts or controls the field is to

A-24

sav the same thing. “To assume. . . that the mere passage ot a

specific statute covering an area of conduct also regulated bv a

more general statute limits enforcement of the general statute

. is, in effect. to accomplish a partial repealer of the general

statute.’ ” Boffa, supra. 688 F.2d at 932 quoting United States

vc. Burnett, 505 F.2d $15, 916 (9th Cir. 1974) ‘per curiam). cert.

denied, sub nom. Lyon vc. United States, 420 U.S. 966. 95 S.Ct.

1361, 48 L. Ed.2d 445 (1975)). See also Stout, supra, 499 F.Supp.

at 608. The touchstone tor application of implied repealer is the

“positive repugnancy between the provisions. United States vc.

Batchelder, 442 U.S. 114, 122, 99 S.Ct. 2198, 2203. 60 L. Ed.2d

735 (1979). In Batchelder. the Supreme Court stated that “it 1s

‘not enough to show that the two statutes produce differing re-

sults when applied to the same factual situation.’ Radzanover v.

Touche Ross & Co., 423 U.S. 148, 155 [96 S.Ct. 1989.

1993-1994. 48 L. Ed. 2d 340] (1976). Id. The Court reversed the

lower court's ruling that two firearm proscriptions were in ir-

reconcilable conflict because their penaltv schemes differed.

Here, there ha: only been evidence that Congress intended

the new labor legislation to expand on remedies already avail-

able. Moreover, the overlap between the two statutes is not com-

plete. At most, the conduct alleged in the complaint may be said

to give rise to separate and independent violations of law. Al-

though the element of interference with section 411 rights is

included within the Hobbs Act allegation. the material elements

ot the crime of extortion include additional elements. such us

effect on interstate commerce and inducing the victim to part

with property. Section 330, on the contrary, requires restraint.

coercion, or intimidation and a specific intent to intertere with

the exercise of LMRDA rights. As the Ninth Circuit has stated.

“The existence of overlapping coverage under other criminal

statutes does not diminish the scope of the Hobbs Act.” United

States v. LaBinia, 614 F.2d 1207 (9th Cir.) cert. denied. +46 U.S.

969, 100 S.Ct. 2951, 64 L.Ed.2d 330 (1980) coverage under

Hobbs Act and Bank Robbery Act, 18 U.S.C. $2113). Other

courts have allowed prosecution under the Hobbs Act even

though the alleged criminal conduct might be punishable under

a different criminal statute. In Cerilb. supra. 603 F.2d at 421.

A-25

the Third Circuit concluded that 15 U.S.C $601 is “Congress

attempt to deal with a problem related to but not identical with

the problem at which the Hobbs Act is aimed.” The Seventh

Circuit compared the Hobbs Act with a violation of the Tutt-

Hartley Act, 29 U.S.C. $156ib) in United States v. Kramer. 355

F.2d 891, 896 : 1966):

When the charge under the Labor Act is based on a coercive

demand or request bv a representative of emplovees. this

conduct may also constitute extortion under the Hobbs Act. |

The fact that the same conduct may give rise to separate and

independent violations of law does not render the charges of

convictions based thereon inconsistent or mutually

exclusive.

This result is consistent with the broad scope ot the Hobbs Act.

discussed earlier. As the Supreme Court stated: “Our examina-

tion of the statutory language and the legislative historv of the

Hobbs Act impels us to the conclusion that Congress intended to

make criminal all conduct within the reach of the statutory lan-

guage.” United States v. Colbert, 435 U.S. 371. 380, 98 S.Ct.

1112, 1117, 55 L. Ed.2d 349 (1978). Where two statutes overlap,

the right of election belongs to the prosecutor. Batchelder.

supra, 442 U.S. at 123-25, 99 S.Ct. at 2203-2205. To the extent

that the conduct alleged in paragraph 12(a) does state a cause of

action under both section 3530 and the Hobbs Act. plaintitf has

made its choice of the course to follow.

It bears repeating at this time that the defendant's motion

under Rule 12(b\6) attacks paragraph 12(a) on the basis that it

cannot set forth a claim upon which relief mav be granted. The

defendant's brief assumed for purposes ot the motion that the

acts of intimidation alleged in the complaint induced the mem-

bers of Local 560 to part with their section 411 rights. Whether

the plaintiff will be able to satisfy all the elements of a Hobbs Act

offense is not presently before me.

5] In sum, therefore, | have determined that section 411

rights are intangible rights which are within the ambit of the

Hobbs Act, and that the Hobbs Act is not impliedly repealed by

the LMRDA.

A-26

Defendant raises as it final objection the point that para-

graph 12(a) essentially makes section 530 of the LMRDA a pred-

icate crime under RICO in violation ot the express definition of

“racketeering activity.” However, this misconstrues the nature

of the plaintiff's charges. Cf. Stout. supra. I have already de-

termined that section 330 does not prohibit the same conduct

prohibited under the Hobbs Act, and it is the Hobbs Act which

serves as one of the predicate otfenses in this action. Further-

more, my research has not produced any evidence that the the-

ory of this case contravenes Congress's intent in passing RICO.

(6] The Senate Report in its analvsis of Title IX which was

enacted as RICO stated with respect to the infiltration of labor

unions by organized crime:

Closely paralleling its takeover of legitimate busi-

nesses, organized crime has moved into 'egitimate unions. ’

Control of labor supply through control of unions can pre-

vent the unionization of some industries or can guarantee

sweetheart contracts in others. It provides the »pportunity

for theft from union funds. extortion through the threat of

economic pressure, and the profit to be gained from the

manipulation of welfare and pension funds and insurance

contracts. Trucking, construction, and watertront entrepre-

neurs have been persuaded for labor peace to countenance

gambling, loan sharking and pilferage. As the takeover of

organized crime cannot be tolerated in legitimate business.

so, too, it cannot be tolerated here.

S.Rep. No. 91-617, 91st Cong., Ist Sess. 78 (1969). ‘4

19. Senator McClellan expended on his congressional remarks im an ar-

ticle, 46 Notre Dame L. 35, 141 | 1970):

The infiltration of legitimate business by organized crime has been

increasingly documented in the past vear. Once it invades a legitunate

field of endeavor, the mob quickly brings with it a tull range of corrupt

practices. [t sumetimes uses terror tactics to ybtain a larger share ot the

market. Labor unions are infiltrated. and then labor peace is suid to busi-

nesses. This does not inure to the benefit of the workingman. To the con-

trary. for example, as documented in a grand jury report [ inserted in the

Congressional Record on Devember 5. 1969. in New Jersey meinbers of

the mob recently required payments from 4 contractor so that nonunion

A-27

The factual basis tor the Senate's statement. as disclosed in

footnote 5. is to be tound in the reports issued by the Select

Committee on Improper Activities in the Labor or Management

Field over which Senator McClellan presided. S.Rept. No.

1417, 85th Cong., 2d Sess. (1958): S.Rept. No. 621, $5th Cong..

Ist Sess. (1959); S.Rept. No. 1139. S5th Cong.. 2d Sess. 1960).

The McClellan hearings were also the impetus behind the pas-

sage of the LMRDA, which history I have already set forth.

Therefore, both the LMRDA and RICO were implemented to

attack the same problem. In my opinion, neither statute man-

dates a finding that conduct which is regulated or proscribed

under the LMRDA cannot also violate RICO. RICO. like the

LMRDA, as earlier detailed. is legislation intended to supple-

ment the panoply of remedies designed to reach racketeering.

Further, it is to be liberally construed. See generally United

States uv. Turkette, 452 U.S. 376. 3585-89. LOL S.Ct. 2524.

2531-2532, 69 L.Ed.2d 246 (1981): C'nited States v. Frumento,

563 F.2d 1083, 1090-91 (3d Cir. 1977) cert. denied. 434 U.S.

1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 (1979).

For-all of these reasons. defendant's motion to dismiss para-

graph 12(a) is denied. An order in conformance with my deter-

mination has been filed bv the court.

men could work at lower wages on a project. In business. the mob bleeds

4 firm of assets, then takes bankruptcy. It steals securities and then uses

the stolen securities to traudulentlv obtain tunds from lending institutions.

[t evades taxes and thereby gains an unfair advantage. [t monopolizes

goods and services thereby raising prices. Through the violence used in its

operations and its rigidly enforced cor.e of silence. as well as exploitation

of nonmembers in its schemes, the mob seeks to gain immunity from the

rules of our society governing business and labor practices. We cannot

afford to allow it to succeed in this endeavor.

A-25

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA CIVIL ACTION NO. 52-649

Planet.

v OPINION

LOCAL 360. INTERNATIONAL

BROTHERHOOD OF TEAMI-

STERS. CHAUFFEURS. WARE-

HOUSEMEN. AND HELPERS

OF AMERICA. ct al.

Detendants.

W. Hunt Dumont. United States Attorney tor the District of

New Jersev

By: Robert C. Stewart. Attornev in Charge

Thomas L. Weisenbeck, Assistant U.S. Attorney

Leopold Lauter, Special Attorney

United States Department of Justice

Newark. New Jersey 07102 For Plaintiif

Edward A. Cohen: Esa.

Schneider. Cohen, Solomon & DiMarzio

Jersey Citv, New Jersey 07306

For detendant Local 560 and the Severance Pav Plan

Harvey Weissbard, Esq.

West Orange, New Jersev 07502

For detendants Provenzano, Sheridan. Dildine. Revnolds.

Sciarra and Jaronko

Herbert New, Esq.

Brenner, New & Brenner

Livingston, New Jersev 07039

For detendant Tricking Emplovees of North Jersev

Welfare Fund

Mr. Stephen Andretta and Mr. Gabriel Briguglio, Pro Se

ACKERM- ., District Judge.

A-29

John L. Lewis. tormer president of the Congress ot Indus-

trial Organizations and the United Mine Workers once said that

“Labor, like Israel. has many sorrows. ”

— Acareful review of the evidence in this unprecedented cise

reveals the veritv of that observation.

It is not a prettv storv. Beneath the relatively sterile lan-

guage of a drv legal opinion is a harrowing tale of how evil men.

sponsored by and part of organized criminal elements. infiltrated

and ultimately captured Local 560 of the International Brother-

hood of Teamsters, one of the largest local unions in the largest

union in this countrv.

This group of gangsters. aided and abetted by their relatives

and sycophants. engaged in a multitaceted orgy of criminal ac-

tivitv. For those that enthusiastically followed these arrogant

mobsters in their morally debased activity there were material

rewards. For those who accepted the side benefits of this per-

verted interpretation of business unionism. see J. Hutchinson,

The Imperfect Union p. 371, '1970), there was presumably the

ratio~ alization of “I’ve got mine, why shouldn't he get his.” For

thos. who attempted to fight, the message was clear. Murder

and other torms of intimidation would be utilized to insure si-

lence. To get along, one had to go along, or else.

It is important to state what the evidence in this case does

and does not show.

It shows that a trade union which is by origin and nature a

voluntary organization is susceptible to the malicious machina-

tions of others. as Congress perceived in enacting the Landrum-

Griffin and RICO Acts.

It does not demonstrate that unions or union officials in gen-

eral are riddled with racketeering or corruption. Most authori-

ties are convinced that the overwhelming number ot unions and

union officials are “untroubled by the problem of corruption.”

[d. Crooks and racketeers are anathema to a significant portion

of the trade union movement. See id.; D. Dubinsky & A. Raskin.

David Dubinsky: A Life With Labor (1977); P. Jacobs, The State

of the Unions (1963). See also “The RICO Civil Fraud Action in

Context: Reflections on Bennett v. Berg,” 38 Notre Dame L.

Rev. 237, 303 n. 179 (1982).

|

A-30

As Protessor Hutchinson observed in his book The Lmper-

fect Union—A History of Corruption in American Trade Unions

(1970) at p. 7-5:

Corruption owes little more to immoral union leaders

than it does to predatory emplovers who. throughout the

history of American business. have sought by cheating and

violence to circumvent the strictures of competition. union-

ization and the law. It is a companion of the corruption in

politics and law enforcement which tor generations has char-

acterized some ot the major cities of the nation. sheltering

the guiltv and embroiling the innocent in crime. [t owes a

debt to the insanity of Prohibition and its enduring legacy of

organized defiance of the law. It thrives in the procedural

jungle of the American criminal law. It stems from the social

conditions of the cities—trom the tensions of an immigrant

societv, the customs of racial discrimination and ethnic iso-

lation, the miseries of the slums and the frustrations of the

underprivileged. the ignorance of the poor and the indit-

ference of the rich. It has. finally, drawn strength trom a

public philosophy which, in electing for the competitive so-

ciety, has tended to trumpet only its virtues. according ei-

ther praise or tolerance to the victors in a battle lightly

burdened with rules.”

Appiving these precepts and the law applicable to this case

I find that the record clearly demonstrates that the Provenzano

brothers ‘Anthony, Nunzio and Salvatore: and their group be-

traved the membership of Local 560.

David Dubinsky, former President of the International La-

dies Garment Workers Union stated in his autobiography that

“{rlacketeering is the cancer that almost destroved the American

trade-union movement. D. Dubinsky & A. Raskin. supra. The

metaphor of disease is apt. See P. Johnson, Modern Times p. 102

(1983). For reasons set forth below, I have determined in this

case, in accordance with law and to secure justice. to use a ju-

dicial scalpel to excise this malignancy from this union and its

members.

A-31

To do anv less would be to ignore the laws of the land and

do a disservice to the thousands of labor leaders who earn their

daily bread bv honestly striving to improve the wages, hours and

working conditions of their members.

This is an action brought pursuant to the Racketeer [nflu-

enced and Corrupt Organization Act RICO), 15 U.S.C. § 1961

* et seq.! Plaintitf United States alleges. inter alia, that Local 560

‘of the International Brotherhood of Teamsters. Chautteurs.

Warehousemen and Helpers of America : Local 560), together

with its Welfare and Pension Funds | Funds) and its Severance

Pav Plan (Plan),? has become. through the actions of the indi-

vidual detendants, a “captive labor organization.” The United

States seeks. first. the appointment of a receiver or trustee to

serve in the capacity of the Local 360 Executive Board until such

time as the membership can treely nominate and elect new of-

ficers. The complaint also seeks injunctive relief against deten-

dants Salvatore Provenzano. Joseph Sheridan, Josephine

Provenzano. J.W. Dildine. Stanley Jaronko, Thomas Reynolds.

Sr., and Michael Sciarra, inter alia barring them trom union of-

fice until such time as a democratic election of officers bv the

membership may be held. Finally. the complaint seeks injunc-

tive relief against defendants Anthony Provenzano. Nunzio

Provenzano, Stephen Andretta and Gabriel Briguglio, inter alia

barring them from any further contacts with Local 360.

lL. Chapter 96 of Title 1S, 18 U.S.C. $§ 1961-1968. was added to that title

by Title LX of the Organized Crime Control Act of 1970. Pub. L. 91-452. 84 Stat.

S41.

2. The Funds have been merged and split several times. the two most

recent events being the March |. 1974 separation of Locals 617 and 641 from

the Trucking Emplovees of North Jersey Welfare Fund (and Pension Plan) and

the May 4. [977 merger of the North Jersey Fuyd and Plan with that of the

Trucking Emplovees of Passaic and Bergen Counties.

|

A-32

The complaint charges that the “Local 360 Enterprise ° is

an enterprise within the meaning of 15 U.S.C. § 1961 ‘4).+ It

further alleges that the individual defendants are associated to-

gether under the leadership of defendant Anthony Provenzano

as the “Provenzano Group,” and that this Group conspired. in

violation of 18 U.S.C. § 1962 :d),* to violate. and actually did

violate, 18 U.S.C. § 1962(b) and ic:.°

Specifically, paragraph 12(a) of the complaint alleges that

the Provenzano Group, aided and abetted by past and present

members of the Executive Board of Local 360 ‘including deten-

dants Salvatore Provenzano, Joseph Sheridan. Josephine

Provenzano, J. W. Dildine. Thomas Reynolds. Sr., Michael

Sciarra. and Stanlev Jaronko) unlawtuily acquired and main-

tained directly and indirectly. an interest in and control ot the

Local 560 Enterprise through a pattern of racketeering activity in

violation of § 1962(b) of the Rico Act. This racketeering activity

was alleged to have involved murder and the swstematic use of

extortion, with the latter allegedly consisting ot. according to the

complaint, “the wrongful use of actual and threatened torce. vi-

olence and tear ot physical and economic injury in order to create

within Local 360 a climate of intimidation which induced the

3. The complaint reters to the nominal defendants | Local 360. the Fund

and the Plan) collectively as the “Local 560 Enterpnse-

4+. 1$ U.S.C. } 1961\4) provides:

“enterprise includes any individual. partnership. corporations. association.

or other legal entitv. and anv union or group of individuals associated in tact

although not a legal entitv....

5. 18 U.S.C. § 1962/d) provides:

d) [t shall be unlawtul for anv person to conspire to violate any ot the pro-

visions otf subsections \a), ‘b). or ‘c) of this section.

§. 18 U.S.C. § 1962(b) and (c) provide:

(b> [t shall be unlawtul for anv person through u pattern of racketeering

activitv or through collection of an unlawtul debt to acquire or maintain. di-

rectly or indirectly, anv interest in ur control ot anv enterprise which is engaged

in, or the activities ot which affect. interstate or foreign commerce.

c) [t shall be unlawful for any person emploved by or associated with any

enterpnse enyaged in, or the activities of which affect, interstate or foreign

cominerce, to conduct or participate, directly or indirectly. in the conduct ot

such enterprise » affairs through a pattern of racketeering activity or collection

of unlawful debe.

A-35

members thereof to consent to the surrender of certain valuable

property in the torm of their union rights a» guaranteed by the

provisions of Sections 137 and 411 of Title 29 of the United States

Code.... ”

7 29U S.C. 3 157 ts section 7 of the Taft-Hartley Act. while 29 C5. ©

§ 411 was enacted as Title [of the Labor Management Reporting and Disclo-

sure Act of 1959 LMRIDA) and is reterred to as the “Bill of Rights of Slembers

ot Labor Organizations. Section 411 provides:

ai li Equal rights. —Every member of a labor organization shall have

equal rights and privileges within such organization to nominate candi-

dates. to vote in elections of referendums of the labor organization, to

attend membership meetings. and to participate in the deliberations and

voting upon the business of such meetings. subject to reasonable rules and

regulations in such organization s constitution and bvlaws.

2) Freedom of speech and assembly. —Every member of any labor

organization shall have the mght to meet and assemble treely with other

members. and to express any views. arguments. or opinions. and to ex-

press at meetings of the labor organization his views. upon candidates in

an election of the labor organization or upon any business properly betore

the meeting, subject to the organization s established and reasonable rules

pertaining to the conduct of meetings: Provided. That nothing herein shall

be construed to impair the riggt of a labor organization to adopt and en-

force reasonable rules as to the responsibility of every member toward the

organization as un institution and to his retraining from conduct that would

interetere with its pertormance of its legal or contractual obligations.

3) Dues. initiation tees. and assessments. —Except in the case of a

federation of national or international labor organizations, the rates ot dues

and initiation tees pavable by members of any labor organization in etfect

on September 14. 1959 shall not be increased. and no general or special

assessment shall be levied upon such members. except—

A) in the case ot a local labor orgainzation. 0 by majority vote by secret

ballot of the members in good standing voting at a general or special mein-

bership meeting, after reasonable notice ot the intention to vote upon such

question, or (ii) bv majority vote of the members in good standing voting

in a membership referendum conducted bv secret ballot: or

by in the cause of a labor organization. other than a local labor organi-

zation or a federation of national or international labor organizations. \i) bv

majority vote of the delegates voting at a regular convention, or at a special

convention of such labor organization held upon not less than thirtv davs.

written notice to the principal office of each local or constitutuent labor

organization entitled to such notice, or (ii) by majority vote of the members

A-34

The particular acts of the detendants which allegedly cre-

ated the climate of intimidation which in turn allegedly induced

the surrender of the members mghts are set out &

subparagraphs (1) through (28) of paragraph 12(a). These allezed

NOTES | Cuntinued)

in good standing of such labor organization voting in a membership ret.

erendum conducted bv secret ballot, of iit) by majority vote of the men:

bers of the executive board or similar governing body of such labor

organization, pursuant to express authority contained in the constitution

and bylaws of such labor organization: Provided, That such action on the

part of the executive board of similar governing body shall be cttective

only until the next reguiar convention ot such labor organization.

+) Protection of the right to sue. —No labor organization shail limit the

right of anv member thereot to institute ar action in any court. or in.

proceeding betore anv administrative agency. irrespective of whether or

not the labor organization or its officers are numed as defendants or re-

spondents inssuch action or proceeding, or the mght of anv member ot «

labor organization to appear as a witness in anv judicial, administrative. or

legislative proceding, of to petition anv legis:ature or to communicate with

any legislator: Provided. That anv such menber mav be required to ex:

haust reasonable hearing procedures | but not to exceed a tour month lapse

of time) within such organization, before instituting legai or administrative

procedinys against such organizations or anv officer thereot: And provided

further. That no interested emplover or emplover association shail directly

or indirectly finance. encourage, or participate in. except as 4a purty. any

such action, preceeding, appearance. or petition.

(5) Safeguards against improper disciplinary action. —No member ot

anv labor organization mav be fined. suspended. expelled. or othernvise

disciplined except tor nonpayment of dues bv such orgamiz*tion or by any

otficer thereof unless such inember has been A) served with written spe-

cific charges: ‘B) given a reasonable time to prepare his detense: C w-

forded a full and tair hearing.

(bh) Any provision of the constitution and bylaws of anv labor organiza-

tion which is inconsistent with the provisions of this section shail be of no

force or effect.

The Supreme Court has recentiv noted that the emphasis of § 411 is “on the

rights of union members to expression without fear of sanctions bv the union.

which in many instances could mean loss ot union membership and in turn loss

of livelihood.” Finn gan v. Leu, U.S. , 102 §.Ct. 1867. 1870 | 1982).

8. Subparagra’shs 12(a) (26), (27) and (28) were added to the compixini

upon application bv the plaintiff for leave to file an amended complaint pur:

suant to Fed.R.Civ. P. Sia), which application was granted on September 20.

1982.

acts are:

(1) the June 1961 murder of Anthony Castellitto, 2) the Au-

gust 1961 appointment of Salvatore Provenzano to the po-

sition of Trustee tormerly occupied bv Castellitto: 3) the

September 1961 appointment of Salvatore Briguylio—the

alleged murderer of Castellitto—to the the position ot Busi-

ness Agent; (4) the February 1963 appointment of Nunzio

Provenzano to the position of Business Agent tollowing his

Januarv 1963 conviction tor extortion; (5) the May 1963 mur-

der of Walter Glockner; (6) the 1964 appointment of Robert

A. Luizzi to the position of Business Agent in spite ot a

record of criminial convictions; (T) the May 1967 appoint-

ment of Luizzi to the position of Trustee; (5) the February

| 1969 appointment of Salvatore Briguglio to the position of

| Business Agent tollowing completion of a term of imprison-

ment for extortion; (9) the April 1969 appointment of Nunzio

Provenzano to the position of clerk following completion ot

a term of imprisonment tor extortion; (10) he 1970 appoint- .

ment of Nunzio Provenzano to the position of Business

Agent; (11) the 1971 appointment of Thomas Reynolds. Sr.

to the position of Business Agent in spite of a record of crim-

inal activitv; (12) the 1972 appointment ot Nunzio

Provenzano to the position of Fund Trustee; (13) the 1972

appointment of Salvatore Briguglio to the position of Fund

Trustee; (14) the allowance of frequent visitations bv

Armand Faugno and Thomas Andretta to the otfices ot Local

360; (15) the January 1963 appointment of Nunzio

Provenzano to the position of Secretarv-Treasurer; | 16) the

1973 appointment of Revnolds to the position ot Fund

Trustee; (17) the 1974 resumption of duties as Business

Agent by Salvatore Briguglio following completion of a term

of imprisonment for counterfeiting; (18) the 1974 appvint-

ment of Luizzi to the position of Fund Trustee: (19) the No-

vember 1975 apnointments of Anthony and Nunzio

Provenzano to the positions of Secretarvy-Treasurer and

President, respectively, in spite of a record of convictions

tor extortion; (20) the February 1977 appointment of

Cen rere

ee

4-36

Revnolds to the position ut Trustee: 21) the July 1975 ap-

pointment of Josephine Provenzano to the position ot

Secretarv-Treasurer tollowing Anthony Provenzano » con-

viction tor the Castellitto murder: 22) the July 19451 ap-

pointment ot Sulvatore Provenzano to the position ot

President following Nunzio Provenzano s torced resignation

as a condition of bail on a labor racketeering conviction. 23)

the Executive Board's failure to recover monies wronztully

converted by Anthony Provenzano: ‘24) the retention of

Marvin Zalk as Fund Administrator in spite of payments

accepted by him trom un insurance company representative

during the 1950's; (25) the retention of Ralph Torraco us the

Fund's independent certified public accountant in spite ot

his tederal indictment tor svstemutically overhilling the

Fund; (26) the extortion of contributions to the detense

funds of the Provenzanos and Michael Sciarra from union

members; (27) the 1981 appvintment of Luizzi to the posi-

tion of Business Agent: and ‘28) associations by some of the

detendants with Frank “Funzi” Tieri and Matteo Altredo

lanniello, reputed to be organized crime members.

Paragraph 12(b) of the complaint alleges that the

Provenzano Group. aided and abetted by various others of the

individual defendants. “unlawtullv did conduct and participate.

directly and indirectly. in the conduct of the affairs ot the Local

560 Enterprise through u pattern of racketeering activity in

violation of $1962/c) of the RICO Act. The’ ‘predicate acts” which

are alleged tc have constituted this pattern of racketeering uc-

tivity are set out as subparagraphs (1) through (5) or paragraph

12(b). These alleged acts are: (1) the extortion of $17,100 trom

Walter Dorn and his company ‘Dorn Transport. [nc. of Rens-

seluer, New York) in return tor “labor peace: (2) the wrongtul

conversion by defendant Anthony Provenzano. aided and abet-

ted bv successive defendant members ot the Local 560 Executive

Board, of approximately $223,785 ia Local 560 funds “bv means

of false and fraudulent pretenses. representations, ind promises.

and pursuant to a scheme and artifice to defraud... .:” (3) the

wrongtul receipt by Provenzano Group members of payments.

A- ds

loans and other things of value from = certain emplovers

Interocean Services. Inc. and Di-Jub Leasing, Inc.) in exchange

for “labor peace”. 4) the unlawful receipt by detendant Anthons

Provenzano. aided and abetted by Salvatore Briguglio. of certain

tees. kickbacks. gifts or things of value in the form ot certain

Florida real estate because ot. and with intent to be influenced

with respect to, his actions and decisions relating to the Benefit

Fund; and (3) the wrongful receipt by detendant Nunzio

Provenzano, together with Irving Cotler and others. as associates

of the Provenzano Group. ot “labor peace’ payments by certain

emplovers. specifically Pacific Intermountain Express Company

Mason and Dixon Lines. Inc., T.1.M.E - DC. Inc. and Helms

Express.

Finally. the initial portion of paragraph 12 of the complaint

contains the governments $1962(d) allegations. It charges that

detendants Anthony Provenzano, Nunzio Provenzano. Stephen

Andretta. Thomas Andretta. Gabriel Briguglio and others asso-

ciated with the Provenzano Group unlawtully did conspire

toghether to violate § 1962(b) and ‘c) with the end of infiltrating,

dominating and exploiting the Local 560 Enterprise.

In its dernand for reliet. the government requests: 1) that

the Provenzano Group be enjoined trom having any dealings.

directly or indirectly. with anv officer or emplovee ot the Local

360 Enterprise or of any labor organization or emplovee benefit

plan as defined in Title 29 about any matter which relates di-

rectly or indirectly to the business affairs of the Local 360 En-

terprise or other such labor organization or benefit plan: :2) that

all current Local 560 Executive Board members—Sualvatore

Provenzano, Joseph Sheridan. Josephine Provenzano. J.W

Dildine. Thomas Revnolds. Sr... Michael Sciarra and Stanles

Jaronko—be enjoined from acting in any offical capacity for or on

behalf of the Local 560 Enterprise: (3) that the court appvint one

or more trustees to discharge all duties and responsibilities of the

Executive Board of Local 560 and such other tasks as the court

may direct; (4) that at an apporpriate time the trustee be in-

structed to conduct, with the assistance of the Department of

Labor and the Department of Justice. a general election in order

A-35

to select officers tor the Executive Board ot Local 360—the elec-

tion to be structured in such a wav as to ensure that the nomi-

nation, primary and final selection processes will not be

vulnerable to torms of intimidation and will reflect the decision.

the government requests. of ut leust eightv percent of the mem-

bers who are eligible to vote; 3) that the court permanently en-

join all individual defendants herein trom having any future

dealings of anv nature whatsoever, directly or indirectly. with

anv officer. agent. representative or emplovee_ot the Local 560

Enterprise or any other Labor organization.

There have been a number ot proceedings in this matter

prior to trial which merit mention. First. a consent order was

entered on June 15, 1982 approving the terms of a stipulation ot

settlement between the plaintiff United States and defendant

Anthony Provenzano, inter alia prohibiting the latter trom “anv

torm of association with anv enterprise within the meaning ot

Section 1961 of Title 18 of the United States Code’. which en-

terprise seeks. directly or indirectly. to dominate. control. con-

duct or otherwise influence the affairs of anv labor organization

or any emplovee benefit plan (within the meaning of Title 29 ot

the United States Code).” A similar consent order was entered

on September 15, 1982 with regard to defendant Nunzio

Provenzano; and, on January 14. 1983, with regard to defendant

Thomas Andretta.

Finally. on November 1. 1982 I denied a motion brought bv

detendant Local 560 pursuant to Fed. R. Civ. P. 12/b) 6) to

dismiss paragraph 12(a) of the compliant for failure to state a

cause of action. United States vc. Local 560 350 F.

Supp. 3511 (D.N.J. 1982). Following a review of the legislative

history ot both the Hobbs Act. 18 U.S.C. 1951. and of the

LMRDA, and relving on United States cv. Boffa, 688 F. 2d 919

3d Cir. 1982), [ concluded that the rights guaranteed to union

members by the LMRDA’s Bill of Rights. 29 U.S.C. § 411. are

intangible rights which fall within the ambit of the Hobbs Act. I

further concluded that the Hebbs Act as construed in this man-

ner was not impliedly repealed by the enactment of the

LMRDA, and that conduct which regulated or proscribed bv the

A-39

LMRDA may also viloate RICOY. RICO. like the LMRDA. is. I

determined. legislation intended to supplement the panoply ot

remedies designed to reach racketeering. Id. at 524-23.

Bv order dated March 25. 1982. my former colleague the

Honorable H. Curtis Meanor directed that the plaintitf’s request

for preliminary and final injunctive reliet be merged pursuant to

Fed. R.Civ.P. 63ia) (2). and that the case proceed t final judge-

ment. On Mav 20. 1982. this matter was reassigned to me trom

Judge Meanor.

The non-jury trial of this case began on Janwry 23. 1943.

The trial encompassed fittv-one davs of testimony, lasting

through Mav 17. 1983, the testimony comprising nearly 9.000

pages in transcript form. I have caretullv considered the live tes-

timony. the exhibits and deposition testimony admitted at trial.

and the arguments of counsel. This memorandum constitutes the

court's decision, and includes the court's findings o tact and con-

clusion of law pursuant to Fed.R.Civ.P. 52(a).

L.

THE PARTIES

Defendant Local 560 is an unincorporated labor association

which was originally chartered on May 11. 1911 bv the Inter-

national Brotherhood of Teamsters. It has its offices at 707 Sum-

mit Avenue in Union Citv. New Jersev. As of May, 1982. it had

approximately LO.000 members emploved by approximately 423

companies in the metropolitan New Jersey - New York area. As

such it is a labor organization engaged in an industry affecting

interstate commerce within the meaning of Section 402 of Title

29 of the United States Code.

Under its constitution. seven elective officers are charged

with managing the dav to dav affairs of Local 560. These officers

9. | specifically determined that 3 330 of the LMRDA does not prolubit

the same conduct prohibited under the Hobbs Act. Since allegations of Hobbs

Act violations serve as predicate offenses in this action. [ fund no merit in

defendant's argument that paragraph 12(a) in essence made § 530 a predicate

crime under RICO in violation of that statute's express deinition of “racke-

teering activity’. 350 F Supp. at 324.

A-40

are: a president. a vice-president. recording secretary. secretary-

treasurer: and three trustees. These seven officers together con-

stitute Local 3560's Executive Board. This Executive Board 1s

generally authorized and empowered to conduct and manage the

affairs of the organization between membership meetings.

Detendant Trucking Emplovees of North Jersey Welture

Fund, Inc. and its Pension Account are located in Local 360 5

building in Union Citv. The tunds were and are today welfare

and pension benefit plans within the meaning of Section 1002 otf

Title 29 of the United States C.xle. As such thev are subject to

the provisions of the Welfare and Pension Plans Disclosure Act

prior to approximately September 2. 1974) and the Emplovee

Retirement Income Security Act ‘after approximately Septeim-

ber 2, 1974).

As noted previously. two other benefit plan entities were

merged into the Funds during May of 1977. These were tormerly

known as the Trucking Emplovees of Passaic and Bergen Coun-

ties Welfare Fund and the Trucking Emplovees of Passaic and

~ Bergen Counties Pension Fund. Both of these benefit plans were

subject to the provision of the Welfare and Pension Plans Dis-

closure Act at the time of their merger into the Funds.

The Funds are controlled by a governing body which is com-

posed of four trustees appointed bv the Executive Board ot Local

360 and four trustees appointed by two emplover associations

whose member companies have collective bargaining agree-

ments with Local 560. The current emplovee trustees include

defendant Salvatore Provenzano. defendant Stanlev Jaronko.

and defendant Joseph Sheridan.”

The Local 560 Otficers and Emplovees Severance Pay Plan

is also operated out of Local 560’s offices. It is an emplovee ben-

efit plan within the meaning of Section 1002 of Title 29 ot the

United States Code in that it provides severance pay benefits to

the emplovees of Local 560. The current trustees of the Plan ure

Salvatore Frovenzano and Josephine Provenzano.

10. Thomas Reynolds. Sr. was a trustee of the Fund us of the time this

litigation commenced und tor a penod atter the tnal began. but has since re-

signed.

A-41

A brief description of each of the remaining nine individual

defendants may be usetul at this point. First. Salvatore “Sam

Provenzano has been the President of Local 360 since approxi-

mately July of 1981. when the Executive Board appointed him to

that position. '! Prior to that time he had been emploved by Local

560 as a Business Agent between approximately November 10.

1959 and August 8, 1961: as a Trustee between approximately

August 8, 1961 and November oi 1965. and again between ap-

proximately January and May ot 1966: as President between ap-

proximately May of 1966 and November of 1975. and as the

Vice-President between approximately December of 1975 and

July of 1981.

Joseph Sheridan has been the Vice-President of Local 560

since approximately July of 1981, when the Executive Board ap-

pointed him to that position. Prior to that time he had been a

Business Agent between approximately July 7, 1972 and Sep-

tember 1, 1978, and thereafter a Trustee between appoximatelyv

September 1, 1978 and Julv of 1981.

Josephine Provenzano has been the Secretary-

Treasurer of Local 560 since approximately June of 1978. when

the Executive Board appointed her to that position. Prior to that

time, she had been emploved by Local 560 as an office worker

from 1976 until the time of her appointment. Josephine

Provenzano is the daughter of detendant Anthony Provanzano

and the niece of defendants Salvatore and Nunzio Provenzano.

J.W. Dildine has been the Recording Secretary of Local 560

since approximately 1965, when the Executive Board appointed

him to that poistion. Prior to that time he had been emploved by

Local 560 as a Business Agent between approximately 1963 and

1968:

Thomas Revnolds, Sr. has been a Trustee of Local 560 since

February 9, 1977. Before that time, he was emploved by Local -

360 as a Business Agent Between September 24, 1970 and Feb-

ruarv 9, 1977. He is the brother-in-law of defendant Nunzio

11. This appointment was presumably made pursuant to the Executive

Board's authority to Ail otficer vacancies which occur dunny the term of an

office.

A-42

Provenzano and the father of former Business Agent Andrew

Reynolds.

Michael Sciarra has been a Trustee of Local 360 since May

28, 1981. Prior to that time he was emploved bv Local 360 as a

Business Agent Between Julv 7. 1972 and September 30. 1976.

and again between December of 1977 and May 2S, 1941. Sciarra

has been a member of Local 3560 since approximutely 1954.

Stanley Jaronko has been a Trustee ot Local 360 since July

13, 1981. Betoe that time, he served Local 560 in the capacity of

Business Agent between December 12. 1977 and Februarv 19.

1981, and as a Trustee between Februarv 19 and May 25, 1951.

Stephen Andretta. who testified at trial pursuant to a grant

of use immunity under 15 U.S.C $$ 6002 and 6003, was a Busi-

ness Agent tor Local 560 between approximately August of 1973

and October of 1976. His membership in Local 560 dates from

the early 1950's, and he held the position of shop steward tor

Local 360 ut = =Eazor Express Co. between the mid-1960's and

August of 1973, and again between approximately October of

1976 and 1980.

The evidence at trial indicated that Stephen Andretta had

known Salvatore Briguylio for over twenty vears as of the early

1970's. Either through Salvatore Briguglio or his brother

Thomas. Stephen Andretta met Armand Faugno sometime dur-

ing the latter 1960's. Around 1971. notwithstanding his position

as a shop steward with Local 560, Stephen Andretta had an own-

ership interest in West End Trucking Company. which was con-

trolled at least in part by Armand Faugno. Further, during the

period between approximately 1971 and late 1972. Stephen

Andretta and Salvatore Briguylio would not infrequently visit

Armand Faugno at the latter's place ot business in Jersey Citv.

New Jersev. During the earlv 1970's. Stephen Andretta also

knew Frederick Salvatore Furino. and was triendlv with Ralph

Pellechia and Ralph Michael Picardo.

On February 22, 1979, Stephen Andretta was indicted in

the District of New Jersey, along with Anthony Provenzano.

Thomas Andretta, Gabriel Briguglio and Ralph Pelleccia. on

RICO charges (specifically 18 U.S.C. § 1962(c) and (d) stemming

ony

A-45

inter alia trom the demand ter and receipt of “labor peace” pay-

ments trom trucking companies which serviced Seatrain Lines

between 1969 and 1977 \Seatrain Labor Peace Pavotfs). On July

10. 1979. tollowing his conviction. Stephen Andretta was sen-

tenced to a ten-vear term of imprisonment. which he is currently

serving. See United States v. Provenzano, 620 F.2d 985, 959 3d

Cir. 1980).

Gabriel Briguglio was a member and officer of Local 54 of

the International Brotherhood of Teamsters. which has its offices

at 1224 Anderson Avenue in Fort Lee. New Jersey. until March

31. 1980. Local $4 merged with Local 560 in May of 1950. '

Gabriel Bruguglio was indicted on February 22, 1979. in the

District of New Jersey, along with Anthony Provenzano and oth-

ers, in the Seatrain Labor Peace Pavotts cuse. On Mav 253. 1979.

he was convicted of those charges, and on July 10, 1979 he was

sentenced to seven vears of imprisonment.United States v.

Provenzano, 620 F. 2d 985, 959 (3d Cir. 1950).

As to the three individual defendants who have entered into

consent judgments in this matter. Anthony Provenzano was em-

ploved by Local 560 as a Business Agent between approximately

1948 and 1958, as the President between approximately 1955

and May of 1966, and as Secretarv-Treasurer between Novem- ~

ber 24, 1975 and June of 1975.

Anthony “Tony Pro” Provenzano s history is a long one. On

November 15, 1960 he was indicted in the District of New Jerseys

on one count of Hobbs Act Extortion (15 U.S.C. § 1951) relating

to the demand and receipt of what is commonly known as “labor

peace pavotts from the Dorn Transportation Company between

1952 and 1959. On July 12. 1963. having been convicted on this

count, Anthony Provenzano was sentenced to a term ot seven

vears. Between approximately May of 1966 and 1970 he was in-

carcerated on that sentence.

During 1962, Anthony Provenzano was indicted again in the

District of New Jersey for Taft-Hartley violations \28 U.S.C. §

12. It should be noted that Gabriel Briguglio has as of vet not become a

member of Local 560 by virtue of or following the merger of these two Locals.

A-44

186) relating to the wrongtul receipt of a house trom Eastern

Freightwavs Company. These charges were. however. cis-

missed during 1967. .

In 1975, Anthony Provenzano was indicted in the Southern

District of New York tor conspiracy to violate the anti-kickback

statute (18 U.S.C. $$ 371. 1954) relating to a proposed loan trom

the Utica Teamsters Benefit Fund tor the renovation of the

Woodstock Hotel. During July of 1978 he was convicted of these

charges and sentenced to a tour vear term of imprisonment.

On June 23, 1976, Provenzano was indicted in Ulster

County, New York. along with Salvatore Briguylio and Harold

“K.O.” Konigsberg, on charges of conspiracy and murder | pur-

suant to New York Penal Law § 350-A and § 1044) relating to the

1961 death of Anthony Castellitto. On June 14. 1975. he was

convicted on the murder count, while the conspiracy to commit

murder count was dismissed. On June 21, 1978, Anthony

Provenzano was sentenced to lite imprisonment.

Finally, on February 22. 1979. Anthony Provenzano was

indicted in the District of New Jersev. along with Gabriel

Briguylio, Stephen and Thomas Andretta and Ralph Pellecchia

on RICO charges in the Seatrain Labor Peace Pavotts case. On

Mav 25, 1977, he was convicted of these charges. and. on July

10, 1979, he was sentenced to a twentv-veur term of imprison-

ment and remanded. He remains incarcerated on that conviction

todav. See United States cv. Provenzano, 605 F.2d $5 3d Cir.

1979).

Nunzio Provenzano, the brother of Anthony and Salvatore

Provenzano. was emploved by Local 560 as a Business Agent

between approximately 1963 and August 6. 1966, as a clerk be-

tween approximately 1969 and 1970, again as a Business Agent

between approximately 1970 and January 25, 1973. as Secretary-

Treasurer between approximately January 25, 1973 and Novem-

ber 24, 1975, and as President between approximately

November 24, 1975 and Julv of 1981.

On December 26, 1961, Nunzio Provenzano was indicted in

New York County, New York, along with Salvatore Briguylio and

a third defendant. on charges of conspiracy and Attempted

Grand Larceny |New York Penal Law § 360 and 1294) Howing

4-45

trom a scheme to demand what might be characterized as “labor

peace” payments from the Braun Company and Hubert J.

Braun, Jr. during December of 1961 | Braun Pavotf Demand). On

January 29, 1963, he was convicted of attempted grand larceny.

and, on March 5. 1963, he was sentenced to a term of two to four

vears. He served this sentence in New York between approxi-

mately August of 1966 and February of 1969.

On September 4. 1980, Nunzio Provenzano was indicted in

the District of New Jersey, along with Irving Cotler. Salvatore

Provenzano, and Michael Sciarra, for RICO violations ‘specifi-

callv 18 U.S.C. § 1962 ic) and :d)) stemming trom the wrongtul

demand and receipt of “labor peace’ payments trom tour truck-

ing companies between 1971 and 1980. a series of incidents otten

reterred to as the “Citv-Man Labor Peace Pavoltls.” On Mav 5.

1981, Nunzio Provenzano was convicted on these charges. and.

on July 7, 1981, he was sentenced to a ten-vear term of impris-

onment. He is presently incarcerated on this conviction.

Finally, Thomas Andretta, the brother of Stephen Andretta.

has been a member of Local 560 during several periods since

1955, including trom approximately August 30. 1955 through

November 31, 1956: trom October 29, 1959 through January 15.

1960; trom January 10, 1962 through November 29, 1965: and

from February 27, 1978 through July of 1979.

On March 31, 1967. Thomas Andretta was indicted in

Middlesex County, New Jersev, along with Armand Faugno. tor

having used threats to injure in the collection of a loan between

March 13 and 23, 1967. in violation of N.J.S.A. 2A:105-4

Middlesex County Loansharking Transaction). See State cv.

Andretta, 61 N.J. 344, 545 (1972). On Mav 17,1973, Thomas

Andretta pleaded guilty to that charge. On July 10. 1973, he was

sentenced to serve from one to two and a half vears in prison.

During early 1968, while free on bail in the Middlesex

County Loansharking Transaction case, Thomas Andretta was in-

dicted in the District of New Jersev, along with Frederick

Salvatore Furino, on charges of Thett from Interstate Shipment.

in violation of 18 U.S.C. § 659. relating to the theft of Skil Tools

at the Canny Trucking terminal during Januarv of 1968 (Skil

Tools theft). Following his guilty plea in that case he was, on or

A-46

about April 17, 1969, sentenced to a one vear term of unpris-

onment and remanded.

On July 22, 1971, Thomas Andretta was indicted in the Dis-

trict of New Jersev, along with Salvatore Briguylio. Armand

Faugno and three others, on counterteiting charges under 15

U.S.C. § 371. 472 and 474 ‘Counterteiting case’. He later

pleaded guiltv and, on July 10, 1973, was sentenced to tourteen

months of imprisonment.

During the early 1970's, except when he was incarcerated.

Thomas Andretta, along with Ralph Picardo. was a regular and

not infrequent visitor to the Local 560 offices. where he and

Ralph Picardo were hosted bv Salvatore Briguyglio. During

roughly this period—between approximately 1970 and late 1972.

Thomas Andretta was apparently emploved by Armand Faugno.

On February 22, 1979, Thomas Andretta was indicted in the

District of New Jersey, along with Anthony Provenzano and oth-

ers. in the Seatrain Labor Peace Pavoffs case. Following his con-

viction in that matter. he was sentenced on Julv 10, 1979 to a

twenty-vear term of imprisonment. United States ec

Provenzano, 620 F. 2d 985, 989 (3d Cir. 1950). He is currently

incarcerated on this sentence.

The other individuals who figure in this matter. but who are

not mamed as defendants, include Robert A. Luizzi, who has

been a Business Agent for Local 560 since September ot 1975.

Pnor to that time he was emploved by the Local as a clerk be-

tween approximately 1960 and 1963, as a Business Agent be-

tween 1964 and 1967, and as a Trustee between Mav 15. 1967

and November of 1980. Luizzi also held the position ot Trustee

tor the Funds from March 12, 1974 until November of 1950.

Salvatore Briguglio had been a member of Local 560 since

the 1950’s and was emploved bv it as a Business Agent trom

September of 1961 to August 5, 1966: from April 25, 1969 to June

of 1973; and again from February of 1974 until his death on

March 21, 1978. Salvatore Briguylio also held the position ot

Trustee of the Passaic and Bergen Funds from 1972 until June ot

1973 and from early 1974 until January 25, 1975.

On December 26, 1961, Salvatore Briguglio was indicted in

New York County, New York, along with Nunzio Provenzano on

A-47

the Braun Pavotf Demand scheme. He was convicted of At-

tempted Grand Larceny and was incarcerated in New York be-

tween approximately August of 1966 and February of 1969 on

that conviction.

On July 22, 1971. Salvatore Briguglio was indicted in the

District of New Jersey. along with Thomas Andretta, Armand

Faugano and three others. in the counterteiting case. Following

his plea of guilty on these charges, he was sentenced on July LO.

1973 to a term of tourteen months of imprisonment. Salvatore

Briguglio was incarcerated on this sentence until approximately

February of 1974.

Between the late 1960's and the mid-1970's. except during

the periods when he was incarcerated. Salvatore Briguylio otten

socialized at the Chateau Renaissance Restaurant in Hudson

County, New Jersev. a place also trequented by Stephen and

Thomas Andretta. Armand Faugno, Frederick Salvatore Furino

and Ralph Michael Picardo. Salvatore Briguglio’s involvment

with Picardo and the Provenzano Group is also exemplied by the

tact that during the period of the Seatrain payoffs, Salvatore

Briguglio promoted the interests of Picardo bv persuading

Salvatore Provenzano to facilitate a meeting between Picardo

and Thomas Durkin (Seatrain’s attornev) so that Picardo could

drum up additional business for Picardo’s trucking company.

On June 23, 1976, Salvatore Briguglio was indicted in Ulster

County. New York, along with Anthony Provenzano and Harold

Konigsberg tor the 1961 Castallitto murder. On March 21. 197S.

while under indictment in that case, Salvatore Briguylio was shot

to death on Viulberrv Street in New York. New York.

Armand Faugno was indicted on March 31. 1967. along with

Thomas Andretta, in the Middlesex County Loansharking Trans-

action case. State v. Andretta, 61 N.J. 544, 545 (1972). On July

22, 1971, Faugno was indicted in the District of New Jersev.

along with Salvatore Briguglio, Thomas Andretta and three oth-

ers, in the Counterteiting cause.) During December ot 1972.

13. While the exhibits relating to these Ovo indictments may have inad-

vertently or incorrectly been ruled inadmissible during the trial in this matter.

Salvatore Provenzano 's testimony provides an alternative basis tor inv findings

ot fact or these matters.

An4S

while under indictment in both of these cases. Armand Faugno

“disappeared. ”

Ralph Michael! Picardo was a member of Local 560. as weil

as being the principal operating officer of several trucking com-

panies, including Lift Van Transport. Picardo was a triend and

associate of Stephen Andretta and had an affiliation with Seutrain

Lines.

On Februarv 22. 1979. Ralph Pellacchia was indicted. along

with Anthony Provenzano and others, in the Seutrain case. On

April 26, 1979, he pleated guilty to related tax charges contained

in that indictment. On Juiv 2, 1979. he was sentenced to two and

half vears of imprisonment.

Frederick Salvatore Furino was. during the late 1960's and

early 1970's, a friend and associate of Stephen Andretta. Thomas

Andretta. Salvatore Briguglio, and Michael Sciarra. and knew

Ralph Picardo. In March of 1968, Furino was indicted in the

District of New Jersev in the Skil Tools Case. Later, during the

latter part of the 1970's, Furino operated a trucking company

which provided non-union labor to the Canny Trucking opera-

tion which was under contract to Local 560. On June 11. 1952.

the bodv of Frederick Salvatore Furino was recovered. The

crime has never been solved.

Finally, Salvatore Sinno plaved a prominent role at trial as

one of the government's chiet witnesses. Sinno, a self-described

criminal, was an early assoc:ate of the Provenzanos and their

triends.

CREDIBILITY FINDINGS

Salvatore (Sam) Provenzano

During the course of his direct testimony Sulvatore Sinno

was asked about Salvatore Provenzano:

Q. Did vou ever engage in anv illegal activity with

Salvatore Provenzano?

A. No.

Q. Did vou ever talk to Salvatore Provenzano about illegal

activity?

A-49

A. No.

Q. Mr. Sinno. did vou ever receive any instruction trom

Anthony Provenzano about what vou could or should talk to

Salvatore Provenzano about?

A. Yeah. thev—he never wanted Salvatore Provenzano. to

get involved in anvthing illegal. We discussed that many a

times, ves.

Q. Can vou tell us specifically what Mr. Anthons

Provenzano s instructions to vou were“

A. He wanted to keep him more or less clean. He didn t

want to get him involved in anv wav or other in illegal ac-

tivities.

Q. Did he give vou the reason that. as vou put it. he

x

wanted to keep Salvatore Provenzano clean?

A. Well, I imagine—

MR. WEISSBARD: Objection. '

THE COURT: Dont imagine. Objection sustained. Answer

the question.

A. Yes. He mentioned that quite often. in regard. he

didn't want Salvatore Provenzano with any kind of a record

or anvthing, but, tor the Unions sake.

Sam Provenzano presently is an International Vice Presi-

dent of the Teamsters Union, President of Joint Council #73.

and President of Local 3560. He thus wields great power on a

national as well as loca! level.

He is intelligent, affable and likeable. Had Sam Provenzano

decided to shed the company he has kept tor at least 25 vears.

there is little doubt in my mind that he would occupy a prom-

inent place on labor's scene todav.

The evidence is highlv persuasive that from the late 30's on

into the 70's, Anthony (Tony Pro) Provenzano, ran this union

with an iron hand whe?! er in or out of prison or office. Sam and

|

A-50

Nunzio plaved musical chairs in minding the store tor Tony to

satistv the technical requirements ot the law.

At some point in the 70's Sam came into his own. With

power at his fingertips, he ran the show and still does. Did he

stav “more or less” clean us Sinno had testified? He cid not. Most

ot the time he helped to steer the ship the wav Tony had wanted

it and made sure the same crew remained on board.

I listened in amazement to him persistently proclaim his

belief in the innocence ot his brothers and other members ot this

criminal syndicate with respect to various crimes that thev had

been convicted of or pled guilty to.

Was he naive, blind or deaf? No. Salvatore Provenzano. in

my judgement, knows the truth and is oblivious to it.

Whv? A revealing answer was provided on April 27. 1953

when he was asked on cross examination:

Q. Today. given all that has happened with Local 560 and

all the indictments and this civil complaint and everything

like that. if another indictment came down like the Seatrain

indictment. would vou. today, hink it a prudent thing as

the president of the union to make an inquirv to trv and find

out what the circumstances were with respect to the union

contract and the alleged violation of the contract?

A. To answer vour question. ves. If I would have done it

bv reading the indictment is something else. I think it is

prudent. I thought I answered that before, that I started to

check out what was going on.

Q. Okay.

A. [never denied that. What I am saving is I didn’t bother

to read the indictments. But I was interested in what took

place.

Q. All right, sir.

Now, I think I understand vou. You were interested then—-

vou were interested at the time of Seatrain in what was go-

ing on?

A-51

A. Yes. Because mv brother was involved. and [ couldn t

see how he was involved in the situation. That was my main

concern.

Q. Your brother?

A. Yes. sir?

Q. As opposed to the union?

A. He comes first. I will say that.

emphasis supplied)

He still does. For Sam Provenzano inherited a legacy ot

corruption which has been preserved by him to this very day. In

speaking ot Tony in partial response to my question he said: “He

would never do anything to hurt this membership. ”

The record is otherwise.

JOSEPHINE PROVENZANO

Miss Provenzano, daughter of Anthony Provenzano. has

been the Secretarv-Treasurer of Local 360 since 1975 when she

was elected to that office at the age of 23 to succeed her tather

who had been convicted of murder. She presently earns $64,000

per vear plus perks.

She has an engaging personalitv and has no illusions as to

why she was appointed. She said:

A... . what motivated them to do that. [ have to sav it Is

because — not onlv that [ was a Provenzano. that counts tor

weight, but [ was Tonv’s daughter. See. there is only one

Tony to them. Now, there was a big issue in this case as to

what members believe. what thev read in papers or dont

thev believe, were they inHuenced bv it? I have to tell vou

the truth. [ dont think they would have cared if it was true

or not true. Because they know what he did tor them. To

them, in their minds, what did the press ever do tor me?

What did the press ever do for me? What did the govern-

ment ever do for me? They take my taxes and thev go on

A-52

about a whole plattorm of things they disagree with the zov-

ernment. Look what Tony did tor me. He gave me pen-

sions, eveulasses. he gave me dental. I have welfare

payments. He saw me on the street and took me in the bar

We had a drink. He remembered inv wite's name. He asked

me how my daughter was. that had the concussion in the

hospital. There is something about mv father. sir. — not

that vou cant get mad at him. You can get mad at him.

There is something about the man. [ mean vou cant un-

derstand until vou're like one of the guvs trom 360. They

just — | would have never believed it. it I wasn't in those

meetings and I didn't hear those people go wild about him.

I mean thev liked him. but it is just incredible to me. It is

just absolutely incredible to me. And to them. [ am Tony s

daughter... .

There can be, to the members cf Local 3560. no higher

recommendation in this entire world And if I don't believe

that, well, [ wouldn't be here right now because I wouldn't

be a member of the executive board of Local 360.

[t is — I don't know how to put it into words. It is more

like an emotion vou feel. He has an uncanny abilitv of mak-

ing people relax. and making them know he cares. He is not

a big deal. He is not verv well-educated. book-wise. He

might have gone to the tourth or fifth grade.

But vou give him a contract, he can read it. [ dont

know how he can read it. He just can. You put him in a room

with 300 truck drivers. Nobodv in this world is going to talk

to them that thev will understand more than mv tather. You

put him in a room with ladies, and vou never see him. Mv

girlfriends — when my father — there is articles in the pa-

pers or — thev crv. They call me on the phone in teurs.

‘How could thev sav that about vour father?’

I tell them, “Hey, listen, evervone is entitled to their

opinion. You know better. Don't crv. Don't zet upset. Don't

read it. That's all.’

A-55

He just commands such love and respect. and admira-

tion and lovaltv. not only from his tamily. but trom the

members ot Local 560. Anvone that comes into contact with

him. I dont know what else to sav. vour Honor. [ mean. |

don't even know it I expressed mvself properly or ade-

quately, but that is just how I teel. [ am so proud to be my

father’s daughter. [Emphasis supplied).

Whatever experience Miss Provenzano lacks. she makes vip

in candor. Her understandable love tor her tather transcends

evervthing else.

STANLEY JARONKO

As pointed out previously, Mr. Jaronko has been a member

ot the Local since 1949 and a business agent since 1977. He was

a shop steward tor 17 vears. He is a trustee of the union and a

union representative to the Trucking Emplovees of North Jersey

Fund (TENJ).

He was asked:

Q. Have vou. to the best of vour knowledge. ever done

anvthing that a member might think was designed to in-

timidate him from coming to meetings or speaking out his

mind?

A. Nope, never did it. Never will.

He was asked:

Q. Mr. Jaronko, if Nunzio Provenzano was able to come

back to the union tomorrow. vou as one member ot the Ex-

ecutive Board would vote him on in a minute. I take it.

right?

A. Yeah. I believe there is a law that he can come back.

But after he does what is he supposed to do? Yes. I would.

Q. And if that law didn't exist and he could come back

tomorrow, you would take him back tomorrow. right?

A. Yes. And | believe the members will. too.

A-54

Q. And vou would do the same thing with Anthonys

Provenzano, assuming he could come back tomorrow. vou

would take him back tomorrow?

A. Yes.

With respect to the Maislin Terminal incident involving Lo-

cal 360 member August Muller. described infra. [ find Mr.

Jaronko’s testimony unconvineing and his version of the story

unbelivable.

A careful review of Mr. Jaronko’s testimony reveals that.

with one exception, he steadfastly retused to accept a verdict ot

guiltv involving the Provenzanos. His rationale — thev were

convicted on the testimony of an informer.

Overall, I found Mr. Jaronko to be fiercely loval to the

Provenzanos, completely indifterent to the historv of criminal

activity on the part of various individuals, including Anthony and

Nunzio Provenzano. Mr. Jaronkos tealty to the present regime

is steadfast bevond question. his testimony left much to be de-

sired.

J.W. DILDINE

A business agent of Local 560 and Recording Secretary since

1968. Mr. Dildine inipressed me as an intelligent individual who

in restrospect “sold himself to the devil” thventv vears ago when

he agreed to come to work tor Anthony Provenzano as a business

agent.

He testified in an extremely lucid manner when contronted

with the sordid historv of the local and its leaders. He was calm

and for a time quite impressive and persuasive.

He testified as follows:

THE COURT: What is vour feeling regarding all these in-

volvements affecting Vir. Nunzio Provenzano?

THE WITNESS: Mv personal feeling is that I would have

to judge Nunzio Provenzano as well as Salvatore

Provenzano and Anthony ?rovenzano in my personul con-

tact with them and mv personal relationship with them.

THE COURT: Yes. sir

THE WITNESS: It has alwavs been one of a strict busi-

ness, from the otfice. Over the vears we had grown. [ guess.

close because of our business association. within that otfice

THE COURT: Yes. sir.

THE WITNESS: Outside ot that otfce. we did no. how

would I put it. personal contact where we socialized or

whatever. I came on the scene as a, as. the expresssion. a

new kid on the block. I had to prove myself. I came in

through the appointment of Mr. Anthony Provanzano. | dug

in. I worked hard. I tried to repay that appointment bv ded-

ication and hard work. So mv association with these gen-

tlemen were always above board.

Thev never asked me to be involved in anv kind of

skullduggerv, nor was I ever aware that there was any skull-

duggerv.

[t was strictly, in that office, as even today, these peo-

ple worked verv hard. They put in a lot of hours, and trey

really tried to do the job tor the membership.

So in answer to vour question, vour Honor. [ dont

know that there has ever been a time that I. and I have had

many conversions with Anthony as well as Nunzio. when he

was the President. and even today, Salvatore. and their

main concern was and is today getting the job done. and

bevond that, I don't know what more I can sav.

THE COURT: All right. Would it be fair then to conclude

that. insotar as Nunzio is concerned. Nunzio Provenzano.

that vou don't believe he was ever involved in anv skull-

duggery, to use vour expression?

THE WITNESS: To mv knowledge. no. sir.

THE COURT: And vou believe in his innocence?

THE WITNESS: Yes, sir.

THE COURT: Okav. Now—

A-56

THE WITNESS: That was in the June thing. The other

one, that is another mutter.

THE COURT. Well. I presume that vour opinion is the

same with respect to the union conviction?

THE WITNESS: Yes. sir.

THE COURT. The most recent conviction?

THE WITNESS: Yes. sir.

THE COURT: All right. You were here when the ygov-

ernment produced this Protessor Summers, were vou not?

THE WITNESS: Yes. sir.

THE COURT: Were vou in the room?

THE WITNESS: Yes, sir. I was.

THE COURT: Do vou recall him testitving one dav that.

and I am paraphrasing it now, that. so vou will forgive me.

Mr. Dildine. that. it’s just not natural. based on his exper-

tise in unions, particularly atter the state conviction, for no-

body to come out and sav, “he done wrong. Forgive mv

English.

What is vour reaction to that. to someone who is no

longer the new kid on the block?

THE WITNESS: My reaction. I was asked I think at the

verv beginning ot mv testimony vesterday what mv educa-

tional background was. and compared to Protessor Sum-

mers, [ guess, mv formal education is rather in remiss.

However, I guess, I have had 35 vears at the school ot

hard knocks, and it's to—to trv to compare his analyzation

from a classroom type ot projection. vou have to live it. vou

have to be a part of it.

You have to be on the firing line. vou have to be up

front. You have to deal with these problems on a daily sit-

uation. Mr. Anthony Provenzano is a very unique person-

alitv. He has a charisma about him that he could relate to

A-57

those people sitting out there in the meetings. in the meet-

ing rooms. To trv to dissect what the protessor had to say

about it. when vou asked him what he thought. in his

learned position, would be the remedy. his analyzation,

without ever meeting me. without every talking to me.

knowing me and my background, mv tamily. or any ot the

other people that I worked with, his immediate response

was to remove evervbody from office. right now. and ap-

point a trustee. and through cross examination by Mr

Briguglio, he brought out the tact that he had been ottered

the job as that trustee bv the government.

And Lam sitting over there. vour Honor, and [am a kid

from the poor side ot the block. and its tor. tor me. its a

frightening thing to be contronted. and to be sitting in this

seat here as a defendant and be charged with violations ot

the Hobbs Act. where [ extorted members, and to be in

violation of evervthing that is holy. as tar as being a union

representation goes.

And to be charged bv the Cnited States Government in

this, its trightening, and I will tell vou something, I have

spent many hours on this. and [ could probably walk away

tomorrow with a small retirement. but [ wouldn't do it un-

der these conditions, because I have never, in my past. have

done anything to deserve this type of treatment. not trom

the Government, or anvone else. or the members that |

serve.

THE COURT: Do vou teel it is a vendetta?

THE WITNESS: Yes. sir. I do, to the ‘nth degree, |

think. I have been associated with the people in my otfice

tor some 20 vears.

THE COURT: Yes, sir.

THE WITNESS: And there have been convictions. There

have been millions of dollars spent, of taxpavers money.

They have, thev don't have to answer to any tor this. to mv

knowledge.

A-55

Thev have unlimited time. We are here today having to

detend ourselves. we have to pay tor our own counsel tees.

and there are those among us. vour Honor. that. we are in

financially termble shape.

Some of us may have to mortgage our homes in order

to pav our legal tees. But even in the tace of that. [ can stand

here and I[ can look at these three gentlemen, evebull to

eveball. I can look at Mr.. what is his name. Dumont. and

I can look at vou. vour Honor. and tell vou that [ have not.

nor have my associates, sitting here todav. since we have

been in office, violated anv law. tederal or othenvise. Anv-

body can sit back and Monday morning quarterback und

sav, why did vou appoint voung Josephine or why did vou

do this. But these were done in good faith. forthright. and

whatever, and each one ot these things. I have partaken in

it. [ have participated in it. but [ do not bow my head to this

court, from actions that I have taken.

Anvone can say. ‘vell. look. here was Tony got con-

victed, Nunzio was convicted, Sal Briguglio was convicted.

You brought these people back to work. Why did vou do

these things? Why was he given a raise in pav? Why was he

given a half pension? And all those things, vour Honor. it

vou had the luxury of time. if vou could attend one of our

meetings, unannounced. and just sit in a corner where thev

wont know who vou were vou would see the response ot

those members.

Its not choreographed. Our people stand up for what

thev think they want. We are mandated bv their actions.

The raise in pav came trom them. the half salarv came trom

them, and each one of these items. it was not a trivolous

tvpe of action by the executive board or whatever. All these

items were checked out legally.

We got legal opinions ws to whether or not we could do

these things. All these pav raises and whatever. or back pay

that was owed. It was reported on the tax report. the LM 2's

or whatever.

4-59

This is not a secret, vour Honor

These people, they cuime in here and they trv to. thes

bring in people to testify that [ have never met. [ don t know

anvthing about them, thev dont know anvthing about me

and vet they would trv to sway this court, and vou are the

judge, and vou are the jurv and the trier of tact in this. and

it will be vour opinion. is what will weigh heavy to we as a

group, and [| sav to vou, vour Honor, that we. as a group

have not indulged as a board. in anv kind ot violation of our

members rights.

Now, I was rather longwinded, but—

THE COURT: Its all right.

THE WITNESS: But I teel. vour Honor. there are

things that vou must know.

THE COURT: I am interested in this.

THE WITNESS: It teel that—

THE COURT: Tell me about the present President.

Salvatore Provenzano. Tell me about him. He is here in the

Courtroom?

THE WITNESS: Salvatore Provenzano is the Presi-

dent ot our Local Union. He is also the President of the Joint

Council tor it, in the State of New Jersev.

He has been the Secretary tor the Eastern Conterence

ot Teamsters, whose main otfice is in Bethesda. Marvland

and he is also an [nternational Vice President.

THE COURT: Ot the International—

THE WITNESS: Ot the International.

THE COURT: Right.

THE WITNESS: And he wears many hats, he has a

wide variety of responsibilities.

A-60

And through the vears that Mr. Salvatore Provenzano

has been delegated to these authorities. of course. his

knowledge. has expanded immensely because he has been

exposed to many more things on a national level and the

conterence level than those ot us in the local. ot course. are

not exposed to.

He has been on the firing line through negotiations. top

level. So all these experiences that he has acquired over the

vears, he has been there I guess since the early 1960 or

1961, so he has had twentv some vears as an officer and he

was also a member prior to that as a driver, and his expertise

has come over the so-called road of hard knocks, too.

He has earned disappointments. He has earned his

way.

And those in the higher authoritv have evidently seen

things that his leadership abilitv and thev have appointed

him into those offices. originally as a Vice President. Inter-

national, and since that time, he has also run in elections

and he has been re-elected.

So my appraisal of Mr. Provenzano. not because he is

sitting here, because over the 20 vears we have not alwavs

agreed on things.

But we argue these things out at board meetings and

_ we come to a conclusion. He has been one that has always.

in my, to mv knowledge, has requested the nembers to tuke

a part, an active part. He even tells us in the board meet-

_ ings, if vou got something to say, sav it.

So my association with him has been. as with Anthony

and Nunzio, has been always with a great deal of respect.

and I hope that the respect is a two-way street.

THE COURT: Is he popular?

THE WITNESS: Yes, sir, he is very popular.

» “

A-651

THE COURT. Oka

Have vou observed any political dissidence insotar as

his tenure as a union otfice holder is concerned?

THE WITNESS: No. sir. I think that over the vears. of

course, when Anthony Provenzano was first taken away

trom the membership. and then Salvatore, we call him Sam,

so I will reter to him as Sam.

THE COURT: Sam. I gathered that. I am observing the

formalities.

THE WITNESS: Sam took over the reins. I think there

Was a period of tim + that the members. well, they were, vou

know—he was Sammy s— Tonv’s brother. but in a verv

short time, I think that thev recognized his abilitv and his

zeal for the job, and as time went on. of course, he went. he

was appointed a general organizer, and then trom that. ot

course, he was made an international vice-president. and of

course, this gave our local a great deal of recognition to the

rest of the Country.

He was a part of that recognition, because of his ded-

ication to the job, and I think that Sam probably puts as

much energy into this job as, and mavbe more. than most

international vice-presidents.

THE COURT: So what vou are telling the Court is he

has earned his own spurs?

THE WITNESS: Yes, sir, without question, and |

dont say it because he is sitting here.

I did not get the impression that Mr. Dildine was com-

pletely comfortable with the role he assumed. History teaches us

that every so often those that keep their mouths shut. and eves

and ears closed in the face of evil are called to account. In a wav

his culpability is greater than most others. He really should have

- known better. By his inaction he facilitated the spread ot the

disease. As Edmund Burke stated in a letter to William Smith

iti,

A-62

dated Januarv 19, 1795. “‘t}he only thing necessary tor the tn-

umph of evil is for good men to do nothing. ”

Mr. Dildine spoke glowingly of his father’s role in labors

struggles against the Ford Motor Company in the 30's. When he

decided to leave his job as a terminal manager in 1963 and accept

Tonv Provenzano s offer he reflected:

Q When did vour next discussion take place and what did

vou do about it in the meantime, if anything?

A Well, in the meantime. of course, I had a lot of sleepless

nights, I guess vou would cull it. because I had worked

prettv hard at what I was doing, and 1 was trving to get

ahead in lite, I guess vou would cail it, and I felt that the pay

would come eventually if I really proved mvself out. With

the title comes the pav. I guess, but I felt that, well. I would

like to get involved in this, and I did a lot of thinking about

this, because mv historv as a voung kid, I go back. back in

the thirties during the Depression vears, and mv ‘ather. he

worked tor Ford Motor Company in Detroit, and he was one

of the first three men to be fired for union activities back

during that period.

And [ recalled it and I relived that over and over again.

and the fact that he was almost killed several times leading

the pickets against, at that time. a company that was so big

vou just could never beat it. And he was one of the leaders

of that strike. He was part of the so-called walkway. where

thev drop buckets with lead in the bottom on the pickets.

when thev brought in strike breakers and whatever. And |

recall during those davs as a kid walking picket lines with my

father, and those were hard davs, when unions were start-

ing. I never forgot those davs.

So that had a lot to do, I think. with mv decision. and

I thought deeply and I talked with my family about it. and

whatever, and it is going to be a whole new change of lite.

lifestvle, and I also felt that. hev, mv father would have been

proud of me. So that had a lot to do with it.

A-65

It is ditficult to reconcile his protessed idealism with the record,

SALVATORE SINNO

Vir. Sinno is a tormer racketeer. one of the murderers ot

Anthony Castellitto. and was the chiet witness against Tony

Provenzano and others at the murder trial. In this case he also

assumed a prominent role in furnishing the court with a graphic

account of how it all began.

His testimony linking Anthony and Nunziw Provenzano to

one of the most notorious crime families in New York, and his

recitation of a pattern of intimidation and criminal activity which

accompanied the takeover of Local 360 had the stamp ot credi-

bilitv. Sinnoe, a huge man, seemed right out ot central casting. As

I listened to his tale. it was obvious that this was the real lite

version of that cinematic presentation “On the Watertront. ”

Sam Provenzano in the course ot his testimony in exculpat-

ing his brother, spoke of various stupid mistakes Tony had made

in various criminal entanglements which had landed him in

prison. The biggest mistake Tony ever made may have been to

initiate Sinno into his criminal traternitv. Sinnos testimony in

this case was extremely valuable. The past is truly prologue.

JOSEPH SHERIDAN

Shop Steward since 1965, Business Agent since 1972.

Trustee since 1978, and Vice President ot 560 since 1951. Mr.

Sheridan presented a picture ct an individual whose tamily had

taken an active role in the union in the pre-Provenzano period

and who had inherited the mantle. Mr. Sheridan appeared to me

to feel verv comtortable with his earnings of $995 per week. He

is not a boat rocker. When asked about Nunzio Provenzano he

said:

A. Sir, if vou know Mr. Provenzano, Nunzio Provenzano

like I know him, and I know him quite a few vears, I don't

believe those allegations.

A-64

I know him to be an excellent labor leader tor his peo-

ple, a good family man and a man [ would be very proud to

recognize in the morning. I don't believe them.

Q. And if he were eligible to serve tomorrow. vou. as

trustee and vice-president of the Local. would bring him

back tomorrow?

A. I would be happy to.

When asked about Anthony Provenzano he said:

A. Sir, let me go back. I only served a couple of vears with

Mr. Anthony Provenzano. [ believe he came back in 75 to

‘78. I was on 72, he wasnt there. So my experience with

Anthony Provenzano is only as a member of Local 360 for

that period of time.

I know the men idolized him and I can see why they

idolized him. He was a man, he come off the trucks the liard

wav. I dont think that is something, I think [ said in my

testimony, [ said the man has charisma that I wish I had. I

don't have it. He is the tvpe of man that can walk in a room

with 3.000 hard hats could be in there, and he is

well-respected no matter where he goes.because [ dont

think there is a man in our union, or in the labor movement.

that can sav anvthing against him, about this man.

He is a fighter. He fights hard. And I will give vou an

example like I respect him for. I think he just was incar-

cerated and he come out for a short time. | think it was a

two-week period.

Q. Which incarceration?

A. I think, [ don’t know if it ison the murder one or on the

Seatrain. He was out for about—a couple of weeks. And

with all on that man’s mind, and anv conversation I had with

Mr. Provenzano was hello, how are vou, and nothing other

than that.

A-55

[ am telling this Court today. vour Honor. just the was

[ feel about this man. I am choked up about it. that is the

tvpe ot guv he was. He would come down to my desk. He

savs Joey, how are vou? [ am sorry to hear vour wite has

cancer. He says. “Anvthing I can do to help vou. let me

know. I said. I appreciate it. Mr. Provenzano. He savs.

‘Hang in there and do the best vou can.

That’s the tvpe of guv he is, with all that is on his mind.

somebody else might not even think of it. but he thought.

just a little something like that, that little charisma like that

man has. Tomorrow morning, if vou let him out of jail he

would win the election ovenvhelmingly. with all the super-

vision vou want to put up. he would walk awav with the

election. |

THE COURT: If vou telt he murdered: Castellitto. would

vou still teel the same wav?

THE WITNESS: No, I wouldn't.

THE COURT: Why?

THE WITNESS: [fanvone takes anvbodv’s life. I wouldn't

even care if it was an animal, [ certainly wouidnt respect

him or want anv part of him or have anvthing to do with him.

THE COURT: If vou telt that he extorted Dorns. how

would vou tee! about it?

THE WITNESS: I certainly wouldn't respect him or ad-

mire him.

THE COURT: Would vou vote for him?

THE WITNESS: Excuse me?

THE COURT: Would vou vote tor him?

THE WITNESS: I would have to weigh that one, sir. be-

cause if he was convicted in mv conscience, he did some-

thing wrong like that, no, I don't think I would.

A-56

THE COURT: What about Nunzios conviction in 1941. if

vou telt he was truly guiltv?

THE WITNESS: If I thought Mr. Nunzio Provenzano was

trulv guiltv of the crime. I know I wouldn't.

THE COURT: You know what?

THE WITNESS: I would not vote tor him.

THE COURT: All right.

Let me ask vou this. Mr. Dildine testified in this court-

room that he felt the government bas pursued u vendetta. |

think that was the word he used originally. and then I

picked up on it, against Local 560.

THE WITNESS: Yes.

THE COURT: You were in the Courtroom tor that?

THE WITNESS: Yes.

THE COURT: Okay. What does the government have to

do, in vour mind. I am talking about Joseph Sheridan's

mind, if | may use the shopworn phrase, to put the ball

across the line, to convince vou that these individuals who

Mr. Lauter has been talking about the last few minutes.

were guiltv of crimes. What—in other words—let me back

up a2 moment.

Like all of us, I am sure vou read the newspapers.

right?

THE WITNESS: Yes, sir.

THE COURT: Everv day we pick up the paper. we read

Joe Smith convicted of murder or robbery in some hamlet

in the United States: right?

THE WITNESS: Yes, vour Honor.

THE COURT: Okay. You read that article. vou don’t know

Joe Smith, [ am assuming that. What reaction do vou have.

as a normal human being?

A-5)

THE WITNESS. As reading that in the article. I certainly

wouldnt think much ot the individual who caused that

crime.

THE COURT: Do vou think the man has had a trial bv a

jury, right?

THE WITNESS: Yes.

THE COURT: The jurv has deliberated and found him

guiltv bevond a reasonable doubt.

THE WITNESS: Yes. sir

THE COURT: Would it be fair to conclude that. on the

basis of what vou read, the man is guiltv? He has been tound

guilty; right?

THE WITNESS: Yes. sir.

THE COURT: All right. Now, all these cases that we have

been talking about, with one exception. I think. I men-

tioned to Mr. Dildine the plea of guilty by Mr. Sal

Briguglio. the counterteiting cause, there were verdicts

handed down. Why, in vour mind, Joseph Sheridan's mind.

do vou have a different reaction?

THE WITNESS: Sir, I guess, like vou sav. if vou read

something in the paper and vou don t know somebody. vou

are fast to judge an opinion. which we all do. [ do it myself.

THE COURT: Right.

THE WITNESS: But I got to tell it to vou the wav [ know

it, is that I didn’t really know the Provenzanos. I just knew

ot them being our leaders in the union and | personally. as

Joe Sheridan, never really got to know them until I became

part of an organization. I can speak tor mv tamily, mv wite.

and I am not just saving that in here, I consider mvself a

verv devout man, a religious man, and [ bring mv family up

this way. I have been in their company on not many occa-

sions. They are respected people in their community. Thev

have lovely children. They brought them up to respect their

A-68

parents. and I dont see this aura of. vou know. what we are

talking about. because [ am there almost—I am there 11

veurs, and I can say that, as God is mv judge. ail I know

these peuple to be is. no one ever. in the 11 vears [ am up

there, said to me. Joe Sheridan. this is the contract.

Your Honor, | believe vou asked me the question ves-

terdav, when vou said, can vou, as Joe Sheridan, make a

decision without picking the phone up? I can tell vou com-

panies, where—and this is not done in all unions. where it I

go out to negotiate a contract and if I know [ got the best that

I can, I don't have to go to that phone. sir. and I never have.

I will just sav, that’s the contract. If the people ratify it.

[ will come in the next dav and [ will tell whoever the pres-

ident is at the time, sir, this is our contract. I got this and

I got that. That is how I know these people. sir.

THE COURT: I understand that. But as a devout individ-

ual, and that is the wav vou have described vourself.

THE WITNESS: Yes, sir.

THE COURT: Haven't vou ever questioned. that is mv—

haven't vou ever questioned in vour own mind. I mean

aside from the fact that vou are on the payroll. and I am

being real up front with vou—

x iad

THE WITNESS: I am sitting in the courtroom when Mr.

Sinno was here, and we are going through testimony. and

they are talking about the Mafia, and the ‘hit men. and all

these here peopie, vou Honor. like I said. unless [ am most

naive people in the world, I am up there 11 vears. I never

met that tvpe of individual, I never come in contact with

them, and I don’t know these people to be anvthing but

good labor leaders, and responsible tamily men. I will go to

my grave saying that.

They are good fighting people tor the people thev rep-

resent. Sure, the things that went on in the past, vou can say

quarterbacking on a Monday morning, maybe this or that

A-69

should have been done. but they trv. even to the member-

ship. Sam said to me, he says. we have the contract tor the

\[eadowlands, he said Joey. do vou think vou can get the

Brendan Brvne Arena. he savs. [ got to trv something and

see if we can't get this membership out.

x“ — x

THE WITNESS: Your Honor. vou know the hardest thing

I think vou have to fight. being a member of our Local. you

can be invited out tor a partv. has nothing to do with unions

or anv union officials there. and it has happened to me quite

alot. The conversation, what do vou do fora living. Business

agent tor 360. Oh. bov. You know, it is that tvpe of stuit

where, I think the papers have done a job, and it is a house-

hold word, as far as, vou know, [ think evervone thinks that

this is a racketeer local, and it is a dominated local.

Joseph Sheridan: decent, devout. blind and bought.

MICHAEL SCIARRA

Michael Sciarra has been a member of Local 360 since the

mid-1950’s. He was appointed a Business Agent in July of 1972.

and held that position until 1976. He was reappointed in 1977.

He become a Trustee of the union in 1981.

Mr. Sciarra, in very emotional terms, spoke ot his love tor

the union and its members and their love for him. During the

course ot his testimony, he stressed his devotion to his duties and

his desire to do evervthing which would benefit the member-

ship. Yet, the government was able to demonstrate that his

‘love’ did not cause him to vigorously police Canny Trucking

Company, where his good triend Fred Furino was tunnelling in

non-union drivers for Canny’s operation. The situation allegedlv

came to light only after Mr. Furino was found murdered. Mr.

Sciarra testified that he was shocked when he learned of it. As

noted elsewhere in this opinion, I am persuaded that his expla-

nations concerning this whole affair were lame.

His love affair with the Provenzanos is more passionate. On

that score the record is clear. He was asked:

A-7T0

Q In tact. vou stated at vour deposition that Anthonys

Provenzano is vour idol: is that correct?

A Yes.

THE COURT. Is vour what?

THE WITNESS: My idol.

He was turther asked bv me:

THE COURT: Now, vou recall mv question. my question

was, do vou recall Miss Josephine Provenzano telling the

Court. even if all these charges were true. the local union

members would welcome back the Provenzanos?

THE WITNESS: Overwhelmingly. Overwhelmingly.

THE COURT: Even if the charges were true.

THE WITNESS: Even if the charges were true.

THE COVJRT: Would vou welcome them back?

THE WITNESS: Yes. I got mv own opinions. [ am not the

same as the members. [ told vou mv opinions and my teel-

ings.

The members would welcome them back with open

arms. Nunzie. whom I have known a little better. [ got

closer to over the vears than I did with Anthony. was a hell

of a business agent. vour Honor.

THE COURT: So that even if. and vou have expressed

vourself very strongly, and [ am not being critical. and very

emotionally concerning the charges in which vou were in-

volved in and which vou were acquitted of. Even if vou

knew that Nunzio was guiltv, and there was no bar. would

vou bring the guv back?

THE WITNESS: I would definitely vote for him. He

would help tremendously.

THE COURT: I was going to ask vou why. in other

words—

—

A-T1

THE WITNESS: Because ot his knowledge ot the busi-

ness. his handling of people. he knows how to handle men.

and he handles women verv well. too, by the wav. And |

don't mean that facetiously. We have a lot of women we

represent. And the women and the men. [ have never heard

one bad remark about Nunzie Provenzano.

THE COURT: And—

THE WITNESS: 1 would welcome him back with open

hands, anv one of them.

THE COURT: That includes Mr. Anthony Provenzano?’

THE WITNESS: Yes.

THE COURT: In other words, if vou knew. tor example.

that the charges—if vou were convinced that the charges

involving the murder of Anthony Castellitto were true in-

sotar as Mr. Anthony Provenzano is concerned, and vou had

the power, I realize, it sounds—it sounds rather improba-

ble, but [ am trving to get vour mind set—

THE WITNESS: I understand.

THE COURT: [am trving to find out how vou think. Mr.

Sciarra. If somehow the doors would open, and Anthony

Provenzano would come out—

THE WITNESS: I would prav.

THE COURT: You would what?

THE WITNESS: I pravy tor that.

THE COURT: ‘You would welcome him back: is that what

vou are saving?

THE WITNESS: Yes.

THE COURT: I am not trving to put words in vour

mouth.

THE WITNESS: Yes, I would.

A-72

THE COURT: Can vou tell me why. assuming vou knew

that—

THE WITNESS: Providing ail the laws permitted him to?

THE COURT: Yes.

THE WITNESS: Again, his leadership. his—I don't know

about his knowledge too much any more, being he has been

awav so much. | know his leadership and the tollowing he

had. Man, [ would gladly welcome him ba¢k. vour Horor.

I know he would be a value to the Local Union. The

membership alone loves him.

THE COURT: Would that be true with respect to Mr.

Stephen Andretta?

THE WITNESS: Stephen, ves. Stephen was a good busi-

_ ness agent.

THE COURT: Allright. [n other words, vou dont believe

the charges?

THE WITNESS: Your Honor. I know Steve verv weil.

We are very close, him and I. He is one of the reasons tor

mv going down to the Companv K a lot. when he was down

there.

THE COURT: Okay. If vou felt the charges were true.

nevertheless, vou would welcome him back?

THE WITNESS: If the charges were true on Steve. |

would have him back. He doesn't know anvthing but the

trucking business, vour Honor. If he is forgiven bv the law

and bv the Lord and he served his time, okav. I will gladlv

welcome him back.

It is pertectly understandable why Mr. Sciarra supported

the motions to vote Mr. Anthony Provenzano a salarv increase

and a half pension. Mr. Sciarra is an excellent example of how the

Provenzano Group has been able to survive and dominate Local

560.

I.

Continuously between approximately the late 1940's and

the present. Anthony Provenzano has been the leader ot a group

of individuals who have been associated together in fact as an

enterprise within the meaning of 18 U.S.C. § 1961i4). the ac-

tivities of which have aifected interstate commerce. + This group

of individuals, the “Provenzano Group.” has included in addi-

tion to Anthonv Provenzano), Nunzio Provenzano. Stephen

Andretta. Thomas Andretta. Gabriel Briguylio. Andrew

Revnolds. Salvatore Briguglio ‘until his murder in 1965),

Salvatore Sinno ‘until his detection in 1961), Harold “K.O.”

Koningsberg (until his incarcertation in the mid-1960's). Armand

Faugno ‘until his “disappearance” in 1972). Ralph Michael

Picardo ‘until his detection in 1975), Ralph Pellecchia until his

imprisonment), and Frederick Salvatore Furino ‘until his mur-

der in 1982). The evidence adduced at trial clearly demonstrates

that these individuals conspired to and actually did conduct the

athairs ot the Provenzano Group Enterprise through a pattern ot

racketeering activitv. in violation of 18 U.S.C. § 1962(c: and .d).

involving murder and labor racketeering offenses on a protracted

l4. The defendants assertion that the characterization of the Provenzano

Group as an enterprise represents an untair and prejudicial “last minute al-

tering of the governments theorv ot the case is without merit. [ find that para-

graph 12 of the complaint gave adequate notice to detendants as to this

allegation. A mere recharacterization of tacts and clauns which had been pre-

viously fullv alleged in the complaint, to harmonize them with chanying

caselaw, see United States v. Riccobene, T09 F.2d 214 3d Cir. 1953). cannot

be considered prejudicial. [t is. as Judge Wood has stated. “a basic principle ot

the Federal Rules ot Civil Procedure that a litigant is not bound by the selection

ot a particular theory of retiet.” Lance. Inc. v. Ginsburg, 210 F.Supp. 272. 274

E.1D. Pa. 1962). Moreover. this theorv was fully tried bv the government with

the implied consent of the detendants. The court may accordingly base its de-

cision on this theorv and may deem the pleadings amended accordingly. \(BI

Motor Company, Inc. v. Lotus/East. Inc., 506 F.2d 709 (3d Cir. 1974): Smith

v. Ellerman Lines. Ltd., 247 F.2d 761. 766 (3d Cir. 1957).

[ fu-ther note that the government has elected not to press the averments

regarding the recovery of salarv increases (paragraph 12-a-23 of the complaint).

the averments regarding Marvin Zalk ;paragraph 12-a-24) and those regarding

Ralph Torraco (paragraph 12-a-23) in view of testimony that there was reliance

upon advice of counsel.

ata

and continuing basis so as to enrich themselves and perpetuate

the existence of their criminal association. The evidence turther

demonstrates that the Provenzano Group has maintained an on-

going organizational structure in the form of a hierarchy and pro-

tocol, which has controlled the affairs and conduct of the

Provenzano Group's associates during approximately the past

thirtv-five vears. Finally, it has also been conclusively demon-

strated that the Provenzano Group has had an existence separate

and upart from simply the pattern of activitv in which it has en-

gaged.

A.

Sometime during the late 1940's. Anthony Provenzano in-

vited Salvatore Sinno to become associated with him and others

in a criminal organization, the Provenzano Group herein. Sinno

accepted this invitation. From this association, Sinno learned

that the Provenzanc Group, operated as an organized racketeer-

ing enterprise, and. through its leader. was a faction of a larger

New York-based criminal organization. This larger organization

was at that time headed by Mike Miranda, who was serving as

“acting boss” while its former head Vito Genovese was impris-

oned. Prior thereto the organization was led by an individual

whom Sinno identified as “Lucky” Luciano.

The larger criminal organization of which the Provenzano

Group was a faction had a settled hierarchy. The positions which

constituted this hierarchy were “boss.” “underboss,” “captains. ”

and “soliders,” which were also known as “made members” or

“button men.” Anthony Provenzano was a part of this hierarchy

and held the position of “made member” within the larger or-

ganization. Others who held such positions during Sinno’s period

of association with the Provenzano Group included Tobv

D'Amico, Mike Sabella, Earl Collucio, Tonv Salerno. Peter

LaPlaca, Bobby Manna, Gvp DeCarlo, Nick Perrv, Pete DiFeo

and Jerry Catena (the latter four of whom were “captains”.

The associates or members of this larger criminal organiza-

tion were then permitted bv its protocol to engage in a variety ot

ee ee eS ee

8

criminal activities. such as gambling, extortion. traticking in sto-

len property and the corruption ot law entorcement authorities

to ignore criminal violations. but were prohibited trom involve-

ment in narcotics, prostitution and counterteiting. Pursuant to

the directions of Anthony Provenzano. and apparently in accor-

dance with the larger organization s protocol. Sinno and others

participated in the commission of a number of criminal ottenses

indicative of the relationship between the larger criminal orga-

nization and the Provenzano Group. One such criminal offense

was the operation by Sinno and others of an illegal monte card

game in New York Citv over a period of several veuars, trom

which the larger organization received a “tribute” payment ot

three percent tor having allowed the game to operate. An illegal

monte card game was also uperated in Hoboken over a period ot

time which involved the payment of money to law entorcement

authorities for “protection.” Jersev City was the situs tor the op-

eration of an illegal dice game over a several vear period prior to

1961, another criminal offense. Anthony Provenzano provided

Sinno with $5,000 in operating capital tor the Jersey Citv game

in exchange tor a ten percent share in the profits.

In September of 1961, Salvatore Sinno disassociated himselt

trom the Provenzano Group. At that time, Nunzio Provenzano

was an associate of the Provenzano Group and, like Sinno. had

been proposed tor full membership in the larger criminal orga-

nization. Nunzio Provenzanos involvement in both organiza-

tions is highlighted by his presence at the “drop” where. by

prearrangement, Sinno “gave up” his truck to be “hijacked.”

Following the period described bv Salvatore Sinno, the

Provenzano Group continued to exist as a racketeering enter-

prise, notwithstanding the incarceration of Anthony Provenzano

between approximately the mid-1960's and 1970 and the incar-

ceration of Nunzio Provenzano ‘as well as Salvatore Briguylio:

15. Anthony Provenzano also caused an emplover to place Salvatore

Sinno s name on its payroll so that Sinno s tax records would retlect a legitimate

source for his income from the various gambling activities seemingly under-

taken at Anthony Provenzano s behest. This provides another exampie of an act

consistent with and reinforcing of the organizational structure of the enterprise

and which promoted both organizational and individual well-being.

A-7T6

between approximately 1966 and 1969. First. [ find that between

approximately 1969 and 1977. Anthony Provenzano. Gabriel

Briguylio. Stephen Andretta and Thomas Andretta unlawtuils

conspired to and did conduct the affairs ot an enterprise the

Provenzano Group) through a pattern ot racketeering activity.

aguin consisting of multiple violations of the Tatt-Hurtley Act. 29

U.S.C. § 186, and involving both Local 560 and several carners

for Seatrain Lines. Further, between approximately 1971 and

1980, Nunzio Provenzano and others conspired to and did cun-

duct the affairs of an enterprise through a pattern of racketeering

activity, again consistng of multiple violations ot the Tuft-Hartles

Act, and involving four interstate carriers.

The continued vitality and viabilitv of the Provenzano

Group is further demorstrated by a number ot pieces of inter-

ential evidence which, taken together, lend cumulative support

to this proposition. First, at a deposition on August 17. 1952.

Andrew Revnolds. a Business Agent tor Local 360. invoked his

Fitth Amendment privilege and retused to answer when asked

whether he knew Bobby Manna. and whether he had met with

Nunzio Provenzano and Bebbv Manna at the Fountain Restau-

rant and Cafe, located at the corner of Houston and Sullivan

Streets in New York Citv. This meeting, which had lasted tor

approximately one hour on July 15, 1980, had been observed bv

the F.B.I. During Sinno’s time, Bobby Manna had been a mem-

ber of the Genovese-led larger criminal organization, and had

heen a partner of Anthony Provenzano and Salvatore Sinno in

the Jersev Citv dice game. Bobbv Manna had also been held in

contempt on Julv 19, 1971 for refusing to answer questions con-

cerning organized crime and racketeering. In re Manna. 124

N.J.Super. 428 (App. Div. 1973). ‘6

During the August 17, 1982 deposition. Andrew Reynolds

also invoked his Fitth Amendment privilege in refusing to an-

swer when asked whether he knew Matthew [anniello, whether

Reynolds reported to Ianniello concerning his activities as an

smplovee of Local 560, whether Ianniello and the “Genovese

16. While [ may have inadvertently excluded this opimin trom evidence.

I may, of course, take judicial notice ot it.

A-TT

Family” control Local 3560 through Revnoids and others. and

whether he had met with Nunzio Provenzano and [anniello on

Mulberry Street on July 29, 1980. The three had been observed

together bv the F.B.I. Matthew [anniello is reputed to be a “cap-

tain’ in the “Genovese Family” and has been identified as a

friend of Anthony Provenzano as well as an acquaintance ot

Salvatore and Josephine Provenzano and Robert Luizz. Addi-

tionally, Salvatore Provenzano had testified at a deposition on

July 29. 1982, and in his testimony at trial that he knew Matthew

fanniello through Anthony Provenzano and considered Lanniello

to be a triend of Anthony Provenzano.

Andrew Revnolds further invoked his Fitth Amendment

privilege in retusing to answer whether he knew Funzi Frank

Tieri. Salvatore Provenzane testified at his deposition that Frank

Tieri is reputed to be a significant organized crime figure. One

ot his connections to Local 360 and the Provenzano Group ts

through Vincent Passaro, who has been a Local 560 Business

Agent tor Local $4. Vincent Passaro is, according to Thomas

Revnolds. reputed to be the “son” of Frank Tieri.

This invocation of the Fitth Amendment privilege by

Andrew Revnolds—who was appointed to the position of Busi-

ness Agent within Local 360 by Nunzio Provenzano and

This text is long and has been trimmed here. Open the source document for the complete record.