US v. Private Sanitation Industry Ass'n

• Decision Date: 30 December 1992
• Docket Number: No. CV-89-1848.,CV-89-1848.
• Citation: 811 F. Supp. 808
• Parties: UNITED STATES of America, Plaintiff, v. PRIVATE SANITATION INDUSTRY ASSOCIATION OF NASSAU/SUFFOLK, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

811 F. Supp. 808

UNITED STATES of America, Plaintiff, v.PRIVATE SANITATION INDUSTRY ASSOCIATION OF NASSAU/SUFFOLK, INC., et al., Defendants.

No. CV-89-1848.

United States District Court, E.D. New York.

December 30, 1992.

COPYRIGHT MATERIAL OMITTED

Mary Jo White, U.S. Atty., E.D.N.Y. (Joseph D. McCann, Paul Weinstein, Jody Kasten, Asst. U.S. Attys., of counsel), Brooklyn, NY, for plaintiff.

Brian D. Linder, Gallop, Dawson, Clayman & Rosenberg, New York City, for defendants.

MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff United States moves for partial summary judgment providing for broad injunctive relief against defendantSalvatore Avellino.Defendant Avellino requests a continuance to conduct discovery pursuant to Fed.R.Civ.P. 56(f) and, alternatively, opposes the government's motion.For the reasons stated below, Avellino's request for a continuance is denied and the government's motion is granted.

FACTS

The United States brought this civil action under the Racketeer Influenced and Corrupt Organizations Act,18 U.S.C. § 1961 et seq.("RICO") against 112 defendants, alleging that they engaged in a pattern of racketeering activity by committing illegal acts and by using force and threatening to use force against other individuals engaged in the collection of solid waste on Long Island.The underlying facts and the identities of the various defendants are set out in United States v. Private Sanitation Indus. Ass'n,793 F.Supp. 1114, 1121-23(E.D.N.Y.1992), familiarity with which is assumed.

For purposes of this motion, the relevant facts are as follows.Salvatore Avellino("Avellino") is a principal and/or hidden owner in two corporate co-defendants in this action: Salem Carting Company ("Salem") and SCC Holding Corp. Decl. of Donald McCormick in Supp. of Pl's Mot. for PartialSumm.J. at ¶ 43("McCormick Decl.").Avellino is also a reputed caporegime in the Lucchese crime family.In that capacity, Avellino is reputed to be in charge of controlling trade waste collection on Long Island.It is alleged that he collects extortion payments and tribute from numerous businesses to be divided between the Lucchese and Gambino crime families.The Gambino family receives an equal share of those illegal proceeds because it controls the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Private Sanitation Local 813 ("Local 813") — the union that represents workers employed by companies engaged in the solid waste industry on Long Island.To control that industry, Avellino allegedly uses, and threatens to use, force against rebel carters who vie for business in the competitive free market; persuades potential competitors not to bid on certain jobs; and bribes public and union officials to ensure continued control of the waste collection industry.

Avellino has been involved in many judicial proceedings concerning these activities.In 1985, the State of New York commenced a civil antitrust action against Avellino and others on behalf of itself and various local government and, as parens patriae, on behalf of all citizens who paid for rubbish removal on Long Island.State of New York v. Salem Sanitary Carting Corp.,CV-85-0208(E.D.N.Y.1985)(Glasser, J.).In December 1991, Avellino agreed to pay compensatory damages to the represented class in the amount of $231,000; on April 24, 1992, this Court approved a final settlement in that case, enjoining Avellino from entering into or enforcing any conspiracy in restraint of trade for the sale of private garbage collection services, granting New York State access for five years to inspect certain contracts, and permitting state investigators to inspect Salem's corporate records, to conduct interviews, and to propound interrogatories.Aff. of Brian Linder in Supp. of Def. Avellino's Mot. to Stay, dated September17, 1992, at ¶¶ 6-7.

Similarly, in 1984 Avellino was charged in separate indictments by state grand juries in Suffolk County, inter alia, for coercing, for conspiring, and for violating New York State antitrust laws¹ and for conspiring to bribe three Town of Huntington, Long Island, officials to receive favorable rate increases for private haulers of solid waste.On October 17, 1986, Avellino pleaded guilty to coercion in the first degree in violation of New York Penal Law § 135.65(1)(McKinney 1987), a class D felony.Transcript of October 17, 1986 plea allocution in New York State County Court, Suffolk County ("Plea Tr.")at 7-8, 14-15(Exh. 8 to McCormick Decl.).In pleading guilty, Avellino stated:

Between on or about December 1981 and October 1983, in the County of Suffolk, I, Salvatore Avellino, intentionally and knowingly violated the law by inducing Robert Kubecka and Jerome Kubecka from refraining from bidding for and soliciting certain carting customers by instilling in the Kubeckas' a fear that I would damage the Kubeckas' property.

McCormickDecl. at ¶¶ 58;Plea Tr.at 15.

At that time, Avellino also pleaded guilty to conspiracy in the fifth degree in violation of New York Penal Law § 105.05(McKinney 1987), a class A misdemeanor, by conspiring with others to commit the felony of second degree bribery.McCormickDecl. at ¶ 73;Plea Tr.at 7-8, 17-19.To receive rate increases for residential carters in the Town of Huntington, Long Island, it is alleged that Avellino and his co-conspirators bribed Arthur Romersa and Vito Biondi of the Town's Department of Environmental Control with $12,000 in political contributions to be paid in installments and $800 worth of postage stamps to be used by the Democratic party.McCormickDecl. at ¶ 66.On April 1, 1983, James Corrigan, the Executive Director of PSIA, notified Avellino that PSIA would pay $800 for postage stamps in exchange for the political votes of three Democratic members of the Huntington Town Board as arranged by Romersa and Biondi.McCormickDecl. at ¶¶ 67, 72.On April 6, 1983, PSIA issued an $800 check for the postage stamps.McCormickDecl. at ¶ 68.At the plea allocution, Avellino stated:

Between on or about August, 1982 through on or about December, 1983, in the County of Suffolk, I, Salvatore Avellino, with the intent that conduct constituting bribery in the second degree be performed, ... agreed to confer a benefit, to wit: Political contributions upon Anthony sic Romersa and Vito Biondi, public servants, upon the understanding that their vote, opinion and action would be influenced as public servants.

McCormickDecl. at ¶ 73;Plea Tr.at 18.

The government now moves for partial summary judgment against Avellino contending that there are no genuine factual issues in dispute to preclude granting that motion as a matter of law because all the requisite elements of civil RICO liability have been established by Avellino's guilty pleas, through the testimony of various government informants in other proceedings, and through transcripts of intercepted communications involving Avellino and others.In addition, the government seeks injunctive relief and disgorgement of profits against Avellino.

Defendant Avellino originally cross-moved for a stay of this civil proceeding while two grand jury investigations in the Eastern District of New York were pending.On October 20, 1992, this Court denied that motion, and granted Avellino twenty days to respond to the government's motion for partial summary judgment, 811 F.Supp. 802.In opposing the government's motion, Avellino contends that it be denied because: (1) there are genuine issues of material fact as to the elements of civil RICO liability; (2) the motion is supported by inadmissible evidence; (3)he requires additional discovery to oppose the motion in accordance with Fed.R.Civ.P. 56(f); and (4) the broad injunctive relief sought by the government impermissibly infringes on his constitutional right of association.

DISCUSSION

Summary judgment "shall be rendered forthwith if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c).In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of its pleading, but its response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."Fed.R.Civ.P. 56(e)(emphasis supplied).The non-movant, however, "must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538(1986).

In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried.Eastman Mach. Co., Inc. v. United States,841 F.2d 469, 473(2d Cir.1988).A genuine factual issue exists if there is sufficient evidence favoring the non-movant such that a jury could return a verdict in its favor.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202(1986).However, "the mere existence of factual issues pertaining to immaterial facts will not suffice to defeat a motion for summary judgment."Quarles v. General Motors Corp.,758 F.2d 839, 840(2d Cir.1985).Because Avellino has failed to show that a genuine issue of material fact exists as to his civil RICO liability, and because his other arguments are not persuasive, partial summary judgment against Avellino is appropriate.

The government has submitted a statement pursuant to LocalRule 3(g) consisting of 58 paragraphs of facts which it claims are not in dispute.Avellino submitted a 3(g) counterstatement in which he states that only five facts are not in dispute, namely: that this is a civil RICO action, that he was indicted by two Suffolk County grand juries, and that he pleaded guilty to the crimes of coercion in the first degree and conspiracy...