U.S. v. Cervone
| Citation | 907 F.2d 332 |
| Decision Date | 29 June 1990 |
| Docket Number | D,Nos. 1049-1054,s. 1049-1054 |
| Parties | 134 L.R.R.M. (BNA) 2643, 115 Lab.Cas. P 10,186 UNITED STATES of America, Appellee, v. Basil Robert CERVONE, Joseph Cervone, Basil Robert Cervone, Jr., Peter A. Vario, Henry Walaski, Joseph Frangipane, Michael Belvedere, John Cerasuolo, Eltore DiSanto, Vincent DiMarcantonio, Nicola Ranieri, Vincent Vanacore, George Barba, George Bernesser, Edward Cummings, Albert DiBernardo, Ralph Morea, and Anthony Perna, Defendants, Appeal of Anthony PERNA, Henry Walaski, Peter A. Vario, Edward Cummings, George Bernesser and Albert DiBernardo, Defendants. ocket 89-1156(L), 89-1240, 89-1241, 89-1314, 89-1315, 89-1325 and 89-1388. |
| Court | U.S. Court of Appeals — Second Circuit |
James M. LaRossa, New York City (Karen F. Silverman, Arie Bucheister, LaRossa, Mitchell & Ross, New York City, of counsel), for defendant-appellant Anthony Perna.
Brian E. Maas, New York City (Robert M. Stolz, Maas & Stolz, New York City, of counsel), for defendant-appellant Henry Walaski.
Barry J. Levine, Mineola, N.Y., for defendant-appellant Peter A. Vario.
Robert L. Clarey, Garden City, N.Y. (Justin Block, Garden City, N.Y., of counsel), for defendant-appellant Edward Cummings.
Paula Schwartz Frome, Garden City, N.Y. (John Laurence Kase, Kase & Druker, Garden City, N.Y., of counsel), for defendant-appellant George Bernesser.
James A. Pascarella, Mineola, N.Y., for defendant-appellant Albert DiBernardo.
Andrew Levchuk, U.S. Dept. of Justice, Washington, D.C. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Patrick J. Cotter, Asst. U.S. Atty., Brooklyn, N.Y., and Anthony J. Siano, Asst. U.S. Atty., New York City, of counsel), for appellee.
Before OAKES, Chief Judge, and WINTER and MAHONEY, Circuit Judges.
Appellants are a group of union and construction company officials who have been convicted by a jury before Chief Judge Platt of a panoply of labor racketeering charges, including conspiracy, extortion, labor bribery, RICO conspiracy, and associated crimes such as obstruction of justice, perjury, and the making of false statements. The various appellants, the precise charges on which they were convicted, and their resultant sentences are noted in the margin. 1 Except for a reversal of certain labor bribery convictions, we affirm.
Appellants were charged along with twelve others in a 102-count indictment. The allegations centered on corruption in the affairs of Mason Tenders' Local Union 13 of the Laborers International Union of North America ("Local 13") and the Mason Tenders' District Council of Greater New York Trust Funds ("Trust Funds"). Local 13 and the Trust Funds, in their relationship with construction industry corruption, were alleged to constitute a racketeering enterprise under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Sec. 1961(4) (1988). Codefendant Basil Robert Cervone, whose appeal was withdrawn, was business manager of Local 13 and an officer and Union Trustee of the Trust Funds. Appellants Peter Vario and Henry Walaski were also labor union officials. Vario was business manager of Mason Tenders' Local Union 46 ("Local 46"), and Walaski was business agent of Local 531 of the Brotherhood of Carpenters and Joiners of North America ("Local 531" or "Carpenters"), whose territory overlapped with Local 13's.
The other appellants were all construction company officials. Edward Cummings was a site supervisor for Benjamin Contracting Corp., a developer and builder of residential properties in the New York area. Albert DiBernardo was president of Cadin Contracting Corp., a firm used by Benjamin Contracting as a subcontractor. Anthony Perna was owner-operator of Perna Contracting Co., a general contractor from Whitestone, New York. George Bernesser was owner and president of Bernesser Masonry Corp. Cummings, DiBernardo and Perna were convicted of participating in labor bribery with Cervone, while Bernesser was convicted of impeding the investigation of corruption in Local 13.
The evidence showed a network of corruption in the construction industry, involving construction company and union officials who engaged in a pattern of labor bribery and extortion. We recite only those facts pertinent to the appealed counts of conviction.
Appellants Vario and Walaski came into contact with Cervone's Local 13 in their capacity as business agents for Local 46 and for the Carpenters local respectively. Pertinent to their convictions on various charges, see supra note 1, was evidence regarding dealings between Cervone and Vario and the Viti Construction Corp. ("Viti Corp."), a concrete contracting firm. Cervone had threatened to unionize Viti Corp.'s workforce in the late 1970's, but had relented as a result of an agreement with Julio Viti, the firm's owner, that Viti Corp. would make a cash payment of $50--later increased--personally to Cervone for every house foundation poured by Viti Corp. Cervone also demanded Christmas "gifts" of liquor and cash. A taped telephone conversation implicated Walaski in Vario's and Walaski's convictions also involved the enterprise's dealings with three Queens construction companies: Q.V. General Mason Co., Inc., Q.V. Scaccia General Mason, Inc. (the "QV Companies"), and Sanita Construction Corp. ("Sanita Corp."). These firms were run by Christopher Scaccia and his son-in-law, Americo Sanita. Cervone, Walaski and Vario, acting in concert, extracted payoffs for labor peace from the QV Companies and Sanita Corp. in the mid-1980's.
Viti Corp.'s 1984 holiday gift to Cervone. In that conversation, Julio Viti told Cervone that before they could meet that day he (Viti) had to "go see Hank around eleven." In reply, Cervone instructed Viti to give Cervone's "gift" to Walaski: "Give it to Hank [Walaski], whatever you gotta do, ya understand, and tell Hank, say listen, bring this to Bobby." Later that day Viti delivered Cervone's present to Walaski, along with an additional gift of liquor and cash for Walaski to keep for himself. This gift was the basis for Walaski's conviction on Count 34 for labor bribery
Part of Walaski's role in the extortion was to assign a troublemaking Carpenters shop steward to a QV job site in Queens. Scaccia, having attempted without success to have Walaski remove the steward, contacted Cervone, who assured him that the problem steward would be replaced. In an intercepted phone conversation on March 27, 1985, Cervone and Walaski discussed the situation:
Walaski: Hey, Mr. SCACCIA'S down on his knees. He's beggin ...
Cervone: (Laughter)
Walaski: He's beggin me to give him a foreman.
Cervone: (Laughter) I ... I ... I ... I ... I told him that the ah ... his best bet is to get a couple of men from you and ah listen to you. I told him in the car for 15 minutes.
Walaski: Yea.
Cervone: Maybe he got convinced.
Walaski: Yea.
Cervone: Did you take that guy away from him?
Walaski: Wh ... which guy?
Cervone: The one that he ... that he don't want?
Walaski: No, he's stayin' there.
Cervone: Oh yea (laughter).
Later that day, after Cervone and Walaski had again discussed the matter, Scaccia had the following conversation with Cervone:
Cervone: Oh well (In Italian) (LEO, I spoke to that guy I made an agreement.)
Scaccia: Oh, umm.
Cervone: You know I already wanted (In Italian) (to keep my word).
Scaccia: Yeah but, (In Italian) (in cash?)
Scaccia: You want it (in Italian) (only in cash?)
Cervone: Yeah sure, might as well 'cause, get it over with. You know (In Italian) (keep your word, this way, this way when t hat [sic] guy tells me a thing.)
Scaccia: [unintelligible] no.
Scaccia: (Three?) no?
Cervone: Yeah, all right uh, (In Italian) (tomorrow) you could do that (In Italian) (tomorrow). (This way I make one time at the office.) This way good bye--good luck 'cause he, took the man away from you.
A notebook belonging to Scaccia indicated two payments of $3000 to Walaski, one on April 4, 1985 and the other on April 26. The book also showed payments of $2500 and $3000 to Cervone in the same period. This evidence was the basis for Walaski's conviction on Count 45 of aiding and abetting Cervone's Hobbs Act extortion. Scaccia and Sanita also executed a series of "ghost" checks to fictitious employees and turned them over to Cervone in return for his influence in the matter of the Carpenters shop steward. These checks were the support for Walaski's convictions on Counts 46-51 for aiding and abetting Cervone's labor bribery.
Vario assisted Cervone in a separate transaction with Sanita Corp. In November 1985, after learning that the QV Companies Vario and Walaski were also involved, along with Cervone and another codefendant, Joseph Frangipane, in a series of payoffs for labor peace from the Spartan Concrete Corp. ("Spartan"). Frangipane was the business agent of the Cement and Concrete Workers Local Union 20 ("Local 20" or "Concrete Workers"), whose territory included a Spartan jobsite on Atlantic Avenue in Queens. The site was also arguably within the jurisdiction of Vario's Mason Tenders' Local 46, which handled certain jobs involving concrete. Although Martin Padover, Spartan's president, had reported the job to the District Council of Cement and Concrete Workers Unions as required under the collective bargaining agreement, Vario, upon learning of the project, took the position that it was a Mason Tenders' job, rather than one for the Concrete Workers.
and Sanita Corp. had undertaken a job in Corona, Queens, without notifying him, Cervone informed Americo Sanita that Vario would be visiting another Sanita Corp. jobsite in Far Rockaway to collect "the dues." In intercepted phone conversations on November 13 and 14, Cervone instructed Vario to "let him [Sanita] come running," and to "[t]hrow the agreement at him and everything." He also stated that Vario should "tell him that
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