U.S. v. Local 1804-1, Intern. Longshoremen's Ass'n, AFL-CIO

Decision Date05 January 1995
Docket NumberD,AFL-CIO,No. 556,556
Citation44 F.3d 1091
Parties148 L.R.R.M. (BNA) 2217 UNITED STATES of America, Plaintiff-Appellee, v. LOCAL 1804-1, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,; John Barbato; George Barone; John Bowers; George Bradley; Thomas Buzzanca; Santo Calabrese; Ronald Capri; Donald J. Carson; Harry Cashin; James J. Cashin; Joseph Colozza; Vincent Colucci; James Coonan; Michael Coppola; Harold Daggett; Doreen Supply Company, Inc.; Tino Fiumara; Anthony Gallagher; Robert Gleason; John Gotti; Leroy Gwynn; ILA Local 1588; ILA Local 1588 Executive Board; ILA Local 1804-1; ILA Local 1804-1 Executive Board; ILA Local 1809; ILA Local 1809 Executive Board; ILA Local 1814; ILA Local 1814 Executive Board; Anthony Anastasio; ILA Local 1909; Blase Terraciano; ILA Local 1909 Executive Board; ILA Local 824; ILA Local 824 Executive Board; Kevin Kelly; Joseph C.F. Kenny; George Lachnicht; Gregory Lagana; Frank Lonardo; Venero Mangano; James McElroy; Metropolitan Marine Maintenance Contractors; Carlos Mora; New York Shipping Association; Nodar Pump Repair, Inc.; Ralph Perello; Louis Pernice; Anthony Pimpinella; John Potter; Douglas Rago; Joseph Randazzo; Thomas Ryan; Anthony Salerno; Dominick Sanzo; Frank Scollo; Anthony Scotto; Alfred Small; Defendants, New York Shipping Association, Defendant-Appellee, Anthony Ciccone, Defendant-Appellant. ocket 94-6152.
CourtU.S. Court of Appeals — Second Circuit

Kay K. Gardiner, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., New York City, Claude M. Millman, Asst. U.S. Atty., Gabriel W. Gorenstein, Asst. U.S. Atty., on the brief), for plaintiff-appellee U.S.

C. Peter Lambos, New York City (Donato Caruso, Lambos & Giardino, New York City, on the brief), for defendant-appellee New York Shipping Ass'n, Inc.

Richard W. Brewster, New York City (Kaplan & Katzberg, New York City, on the brief), for appellant Ciccone.

Before: NEWMAN, Chief Judge, WALKER and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

In this lengthy postscript to a protracted civil RICO case, defendant Anthony Ciccone appeals from a finding of contempt entered on April 29, 1994, by the United States District Court for the Southern District of New York (John S. Martin, Jr., Judge), and from an enforcement order dated May 24, 1994. The civil contempt finding rested on the District Court's conclusion that Ciccone had violated two provisions of a consent decree entered into by Ciccone and a number of his co-defendants. First, the Court found that Ciccone violated the portion of the decree that prohibited him from knowingly and improperly associating with organized crime figures or with individuals barred from participation in union affairs. Second, the Court determined that Ciccone applied for a pension for which he was ineligible under the terms of the consent decree. Because we interpret the consent decree differently from the District Court, we vacate those portions of the Court's orders that relate to Ciccone's associations with individuals allegedly of prohibited status, and we affirm those portions of the Court's orders that deal with the pension issue on somewhat different grounds.

BACKGROUND

The consent decree that Ciccone signed arose out of a wide-ranging, multi-defendant civil action under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1961 et seq., in which the government sought to eradicate the influence of organized crime in local unions affiliated with the International Longshoremen's Association ("ILA") on the New York/New Jersey Waterfront. Although the government attempted to prove the existence of an overarching RICO enterprise, in practical effect the government's case was broken into relatively discrete units, each targeting a different local union and a different location on the Waterfront. In the portion of the case relevant here, the government tried to prove that Ciccone, an ILA official and a special administrator of Local 1814 in Brooklyn, was affiliated with the Gambino crime family. The government alleged that Ciccone abused his position as special assistant to Local 1814 to embezzle funds from the local, and that Ciccone ran gambling and loansharking rings On December 17, 1991, during the course of the trial and after the government presented substantial evidence concerning Ciccone's ties to organized crime and misuse of his union position, Ciccone and a number of his co-defendants agreed to the entry of a consent decree ending their trial. In the consent decree, Ciccone agreed to significant restrictions on his future activities and associations. In particular, under Paragraph 2(a) of the decree, Ciccone agreed to be enjoined

from a social club located near Local 1814's offices.

from committing any act of racketeering activity, as defined in 18 U.S.C. Sec. 1961, and from knowingly and improperly associating with any member or associate of any La Cosa Nostra crime family or any other criminal group, or with any person prohibited from participating in union affairs.

Ciccone further agreed, in Paragraph 9(b) of the decree, to disassociate himself from Local 1814 and the ILA, with limited exceptions relating to job benefits:

On or before March 30, 1992, Anthony Ciccone shall resign from any and all positions, whether elective or appointive, that he currently holds in Local 1814, the ILA, or any other ILA-affiliated entity, including any ILA local union, any ILA district, and any pension or other benefit plan or fund affiliated with any ILA entity. Ciccone shall not thereafter seek or accept any such position in any such entity or resume any such membership, and shall be permanently barred from any employment by or other participation in the affairs of any entity doing business on the Waterfront. Nothing in this subparagraph, however, shall preclude Ciccone from remaining a member of Local 1814 solely for the purpose of obtaining eligibility for benefits pursuant to the General Cargo Agreement, subject to the authority of the Monitor herein. Nothing in this provision shall impair Ciccone's entitlement to any welfare or vested pension or severance benefits.

In November 1993, the government moved for an order to show cause why Ciccone should not be held in contempt for violations of the consent decree. The government's motion had two bases. First, the government contended that Ciccone violated Paragraph 2(a) by maintaining regular, systematic contacts both with members of the Gambino crime family and with individuals who had been ordered to refrain from participation in union affairs. In support of its contention, the government submitted an affidavit of a federal agent who had conducted an ongoing surveillance of Ciccone. The affidavit and supporting exhibits detailed numerous contacts between Ciccone and alleged organized crime figures, as well as contacts between Ciccone and individuals barred from participation in union affairs. Many of these contacts occurred at Ciccone's social club and at other social clubs reputed to be gathering points for Gambino family associates; on at least one occasion, Ciccone was observed leaving Local 1814's offices in the company of an alleged Gambino soldier. In response to the government's evidence, Ciccone denied generally that the individuals with whom he had been seen were involved in organized crime; he did not dispute, however, that he met on a number of occasions with individuals barred from involvement in the union. Ciccone's principal contention was that even if he had knowingly associated with organized crime figures and individuals prohibited from taking part in union affairs, there was no evidence that his association with those individuals was improper.

Second, the government contended that Ciccone violated Paragraph 9(b) by seeking a benefit from the union to which he was not entitled. In late March 1992, Ciccone applied to the New York Shipping Association ("NYSA")--ILA pension fund for a "window period pension." The window period pension, an early retirement incentive plan, had been available to active employees over the age of 55, with 25 or more years of experience, who withdrew from the industry between December 1, 1990, and January 31, 1991. Ciccone, who had the requisite experience and was over the age of 55 throughout this period, did not withdraw from the industry during the window period, but rather remained in the industry until he was required to withdraw, pursuant to the consent decree, in March 1992. Although Ciccone's On review of the government's motion and Ciccone's response, the District Court concluded that Ciccone had violated both Paragraph 2(a) and Paragraph 9(b) of the consent decree. After seeking further input from both the government and Ciccone concerning the appropriate remedy, the Court ordered that Ciccone not associate, knowingly and improperly, with any member or associate of any La Cosa Nostra crime family or other criminal group. The Court specifically identified over 150 individuals as organized crime figures with whom Ciccone was not to associate, knowingly and improperly. The Court also repeated the consent decree's ban on knowing and improper association with individuals barred from involvement in union affairs, and further ordered Ciccone not to associate with any member, officer, or employee of the ILA or any of its affiliates. In addition, the Court ordered Ciccone not to frequent certain locations associated with either the ILA or organized crime. Finally, the Court ordered Ciccone to withdraw his application for the window period pension. The order stated that future violations would "subject Ciccone to escalating fines or imprisonment." From this order, and from the order concluding that Ciccone had violated the consent decree, Ciccone now appeals.

application therefore was untimely, Ciccone sought a waiver. Ciccone's application was denied by the pension fund trustees and, after a split vote...

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