U.S. v. Local 359, United Seafood Workers, AFL-CI
| Citation | 55 F.3d 64 |
| Decision Date | 15 May 1995 |
| Docket Number | 500,A,D,E,Nos. 499,CL,AFL-CI,s. 499 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. LOCAL 359, UNITED SEAFOOD WORKERS, Smoked Fish & Cannery Union, United Food and Commercial Workers International Union,xecutive Board and Officers of Local 359, United Seafood Workers, Smoked Fish & Cannery Union, United Food and Commercial Workers International Union,nthony Cirillo, President, Dennis Faicco, Secretary-Treasurer, Michael Esposito, Vice President, Perry Fiori, Vice President, Richard Dominici, Vice President, William Bell, Recorder, Thomas Tripoulas, Vice President, Fulton Fish Market Welfare Fund, Nina Andrew, Executive Administrator, Anthony Cirillo, Trustee, Dennis Faicco, Trustee, Fulton Fish Market Pension Fund, Nina Andrew, Executive Administrator, Anthony Cirillo, Trustee, Dennis Faicco, Trustee, Genovese Organized Crime Family of La Cosa Nostra, Thomas Contaldo, Capo, Carmine Romano, Member, Colombo Saggese, Member, Vincent Romano, Peter Romano, Robert La Carrubba, Thomas La Carrubba, Joseph Macario, Carmine Russo, Elio Albanese, Victor Grande, Charles Chiappone, Jerry Giammarino, Vincent Christopher, Robert Fox, Gerard Albanese, Rosario Leanzo, Robert Gillio, Gennaro Prisinzano, Giuseppe Serrantonio, Joseph Dilella, Carmine Sarnelli, Joseph Crivelli, John J. Crivelli, Anthony Crivelli, Louis Demeo, John Gallo, Dominic Lategano, Gerard Guadagno, Associates, and Fulton Market Employers Association and Associated Purveyors, Defendants, Jerry Giammarino, Robert Fox, Gerard Albanese, Gennaro Prisinzano, Dominic Lategano, Joseph Macario, Carmine Russo, Victor Grande, Charles Chiappone, Vincent Christopher, Joseph Dilella, Carmine Sarnelli, and John J. Crivelli, Defendants-Appellants. ockets 94-6103, 94-6105. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Peter C. Sprung, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty. for the S.D. of N.Y., Steven M. Haber, Asst. U.S. Atty., New York City, on the brief), for appellee.
Gerald J. McMahon, New York City, for defendants-appellants.
Before: KEARSE, McLAUGHLIN and CABRANES, Circuit Judges.
These consolidated appeals from decisions of the United States District Court for the Southern District of New York, Thomas P. Griesa, Chief Judge, arise from the implementation of an April 15, 1988 consent judgment (the "Consent Judgment" or "Judgment") entered in a civil suit brought by the United States against numerous defendants in connection with the operation of the Fulton Fish Market (the "Market") in lower Manhattan. The government's suit asserted that the Genovese Organized Crime Family ("Genovese Family") and 29 of its alleged members and associates had conducted, and were continuing to conduct, the affairs of the Market through a pattern of racketeering activity that included extortion, theft from interstate shipments, loansharking, illegal gambling, and wire fraud. It alleged that, through a system of payoffs and threatened and actual violence, the Genovese Family dominated the Market by controlling the crews that load and unload seafood and conspiratorially dividing the market for those services. The Consent Judgment permanently enjoined 25 of the defendants, including the 13 appellants, from engaging in racketeering activity at the Market and from using any unlawful means to control competition in the loading and unloading businesses; it also called for an administrator (the "Administrator") to, inter alia, monitor the Market, submit proposed rules and regulations, and investigate possible violations of the injunction.
In the first appeal before us, No. 94-6103, 13 loaders and unloaders at the Market (the "Market defendants") challenge the validity of a February 17, 1994 order extending the term of the Administrator, which had expired on January 1, 1994. They contend that the court lacked the power to order a retroactive extension. In the second appeal, No. 94-6105, five Market defendants who own unloading crews, to wit, defendants Jerry Giammarino, Robert Fox, Gerard Albanese, Gennaro Prisinzano, and Dominic Lategano (collectively the "unloader defendants") appeal from a judgment affirming the Administrator's imposition of fines against them for engaging in a scheme to suppress competition in the unloading business, in violation of the Consent Judgment. The unloader defendants contend that the Administrator's decision was not supported by substantial evidence. For the reasons below, we reject the contentions of the appellants on both appeals and affirm the district court's order and judgment.
The procedural background is not in dispute. In May 1988, the district court appointed Frank H. Wohl, Esq. to serve a four- The Consent Judgment gives the Administrator authority to impose a range of sanctions, including fines, suspensions, and debarment from working or doing business at the Market, against any defendant found by the Administrator to be in violation of the injunction. An affected party has the right under the Judgment to ask the district court to review any of the Administrator's proposed sanctions, and certain sanctions can become effective only if approved by the court.
year term as Administrator under the Consent Judgment. Thereafter, as detailed in Part I.B. below, the court extended the Administrator's term several times.
Following his appointment, the Administrator commenced an extensive investigation of the Market's operations. A staff of investigators interviewed hundreds of truckers, wholesalers, and other suppliers. Virtually all of the truckers stated that they did not select the unloading crew to which they were assigned; some stated that they had tried to use a different crew but had been told that they could not. The investigators found only one trucker who stated that he had been able to change unloading crews of his own volition; and he stated that he was able to make that change only because one of his suppliers had gone out of business and because of the Administrator's presence in the Market.
The investigators also interviewed, to the extent that they would cooperate, loaders and unloaders. Fox stated that none of his customers had ever changed to another unloading crew and that he had never acquired any customers from any other crew. Giammarino stated that he would not unload another crew's regular trucks unless that crew asked him to. Albanese, Prisinzano, and Lategano, and to an extent Giammarino, invoked their Fifth Amendment privileges against self-incrimination and refused to answer most questions as to how they obtained their customers or how incoming trucks came to be unloaded by particular crews.
As a result of these investigations, the Administrator gave notice that he intended to recommend the imposition of sanctions against the unloader defendants for the collusive elimination of competition in unloading services. Those defendants requested an opportunity to oppose sanctions by showing the existence of such competition. The Administrator thereafter conducted seven days of evidentiary hearings, at which he received documentary evidence and the testimony of four government-affiliated witnesses involved in the Market investigations and one supplier witness, Silvio Catena, called by the unloader defendants. Catena testified that in February 1991 his employer had switched unloaders by transferring its business from Fox to Albanese. The defense also presented four letters from truckers and wholesalers who stated that they, like Catena, had been able to switch unloaders without adverse consequences.
Following the conclusion of the hearings, the Administrator issued a report finding overwhelming evidence that the unloader defendants had violated the Consent Judgment through their continued conspiracy to control the unloading market and to allocate individual truckers to particular unloading crews, and concluding that sanctions should be imposed. (Statement of Reasons Supporting Imposition of Sanctions dated June 18, 1992 ("Administrator's Sanctions Decision").) As proof of the existence of the market-allocation scheme, the Administrator found, inter alia, (1) a "prevailing understanding" in the Market that trucking companies were not free to determine which unloader's services they would use (id. at 28), and the absence of any unloader solicitation of each others' customers; (2) unwarranted delays inflicted on truckers, who were required to wait for the services of their assigned unloader even when other crews were available; (3) admissions by Giammarino, Fox, and others that they were the exclusive unloaders for certain suppliers and would not unload the trucks of other unloaders' customers; (4) the lack of price competition, manifested in to-the-penny uniformity in the basic prices charged by all of the unloaders; and (5) the extraction by Giammarino, Prisinzano, and Lategano of unwarranted supplemental charges totaling approximately $100,000 a year.
The Administrator rejected as not credible the unloader defendants' evidence purporting to demonstrate that some customers had in fact switched unloaders. He noted that Catena's testimony as to a switch by his employer was undercut by, inter alia, his testimony that the services of both Fox and Albanese had been used at the same time (id. at 30), and his prior statements to investigators that he would not attempt to change unloaders for fear that it would " 'start a war' " with the current unloader (id. at 29). The Administrator concluded that "there was no 'switch' " (id. at 30) by Catena's employer, but that even if there had been, there was no credible evidence that any other customer had been able to switch unloaders. He found that the four letters introduced by the unloader defendants were not credible, noting that (a) in interviews with the investigators, the owners of the companies...
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