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United States v. Local 359

decided: November 15, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
LOCAL 359, UNITED SEAFOOD WORKERS, SMOKED FISH & CANNERY UNION, UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, EXECUTIVE BOARD AND OFFICERS OF LOCAL 359, UNITED SEAFOOD WORKERS, SMOKED FISH & CANNERY UNION, UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, ANTHONY 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, 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, FULTON MARKET EMPLOYERS ASSOCIATION AND ASSOCIATED PURVEYORS, DEFENDANTS, LOCAL 359, UNITED SEAFOOD WORKERS, SMOKED FISH & CANNERY UNION, UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, ANTHONY CIRILLO AND DENNIS FAICCO, DEFENDANTS-APPELLEES



Appeal from a judgment of the United States District Court for the Southern District of New York dismissing a civil RICO complaint after a nonjury trial before Judge Griesa.

Van Graafeiland, Meskill and Kearse, Circuit Judges.

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

The United States appeals from a judgment of the United States District Court for the Southern District of New York (Griesa, J.) dismissing a civil RICO action against Local 359 of the United Seafood Workers, Smoked Fish & Cannery Union, Anthony Cirillo, its president, and Dennis Faicco, its secretary-treasurer. See 705 F. Supp. 894 (S.D.N.Y. 1989). We affirm in part and remand in part.

The Fulton Fish Market (the Market), located on the lower east side of Manhattan, is the center of the wholesale seafood industry for the New York City area. Local 359 has approximately 600 members, most of whom work at the Market. For many years, the Government suspected, and at times was able to prove, that the Genovese Family of La Cosa Nostra, or the Mafia, exerted corrupt influence over the Market through its control of Local 359. In 1982, two officers of the Local, Carmine Romano and Peter Romano, were convicted of exacting illegal payments from Market employers, misuse of Union funds and other unlawful acts. See United States v. Romano, 684 F.2d 1057 (2d Cir.), cert. denied, 459 U.S. 1016, 74 L. Ed. 2d 509, 103 S. Ct. 375, 103 S. Ct. 376 (1982). Carmine Romano was a "soldier" in the Genovese Family; Peter Romano is his brother.

In 1984, convinced that Genovese influence in the Market did not end when the Romanos went to prison, the FBI and the New York City Police Department began a joint investigation into organized crime's involvement in the seafood industry, particularly in the Market. This investigation led the Government to conclude that Vincent Romano, another brother of Carmine, had assumed control of Genovese criminal activities in the Market. The Government believed that Vincent exercised this control through appellee Cirillo, the Local's president.

On October 15, 1987, the Government brought the instant action against all of the above-captioned defendants, alleging numerous RICO violations at the Market. On April 15, 1988, the district court entered a consent judgment and a default judgment that together resolved the Government's claims against all of the non-union defendants. The two judgments permanently enjoined the Genovese Family and the named Family members and associates from dealing with Local 359 or any other union, from participating in any business or enterprise in the Market and from engaging in a wide range of racketeering activities. The Government subsequently withdrew its charges against all of the other named defendants except Local 359, Cirillo and Faicco, and the case against those defendants went to trial before Judge Griesa sitting without a jury.

The Government alleged in an amended complaint that Cirillo and Faicco engaged in a pattern of criminal acts in violation of RICO and asked that they be removed from their union offices and replaced by a trustee to run the union pending the election of new officers. The alleged predicate acts giving rise to the RICO claims included wire fraud, extortion and violations of the Taft-Hartley Act. The wire fraud claim was based primarily on telephone conversations between Cirillo and Vincent Romano in which the status of ongoing negotiations for a new collective bargaining agreement between Local 359 and Market employers was reported on and discussed. Romano was not a union member but was in fact an employer. Moreover, he relayed to Genovese hierarchy the information he received from Cirillo.

The district court stated that "as a matter of good judgment, Cirillo should not have been in touch with Romano about union matters." 705 F. Supp. at 904. However, the court found that neither Romano nor the Genovese Family directed or influenced Cirillo in the negotiations, id. at 904-05, that the information conveyed to Romano and the Family was not confidential, id. at 905, and that the union members were not disadvantaged as a result of the disclosed information. Id. at 902. These factual findings were not clearly erroneous and therefore must stand. Fed.R.Civ.P. 52(a); see Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985) (if district court's interpretation of the evidence is plausible, circuit court may not reverse even if it would have weighed the evidence differently). Accordingly, the district court's rejection of this wire fraud-RICO claim is affirmed. See United States v. Rastelli, 870 F.2d 822, 830-31 (2d Cir. 1989).

The Government's remaining claim of wire fraud was based on Cirillo's alleged efforts to find a job at the Market for Steve Melfi, Carmine Romano's son-in-law, who was not a union member. The district court found "no evidence that Cirillo played any role whatever in obtaining the job for Melfi" and dismissed this claim. 705 F. Supp. at 906. We note in addition that Cirillo's unsuccessful attempt to obtain a job for Melfi did not threaten to deprive anyone of a property interest protected by the federal wire fraud statute. See McNally v. United States, 483 U.S. 350, 97 L. Ed. 2d 292, 107 S. Ct. 2875 (1987). We affirm this dismissal.

Because the district court's dismissal of the extortion claims also was based largely on factual findings that were not clearly erroneous, it too is affirmed.

The district court's dismissal of the Taft-Hartley-RICO claims, however, causes us concern. Indeed, we are sufficiently troubled by the district court's reasoning in dismissing these claims that we are remanding for reconsideration and a clearer exposition of the facts and the applicable law.

RICO provides, "It shall be unlawful . . . to conduct . . . [the] affairs [of any enterprise engaged in interstate or foreign commerce] through a pattern of racketeering activity. . . ." 18 U.S.C. § 1962(c). Both Local 359 and the Market qualify as enterprises under this section. See 705 F. Supp. at 897; United States v. LeRoy, 687 F.2d 610, 616 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823, 74 L. Ed. 2d 1019 (1983); 18 U.S.C. § 1961(4). A pattern of racketeering activity requires at least two interrelated criminal acts connected to conduct of the enterprise. "An interrelationship between acts, suggesting the existence of a pattern, may be established in a number of ways. These include proof of their temporal proximity, or common goals, or similarity of methods, or repetitions." United States v. Indelicato, 865 F.2d 1370, 1382 (2d Cir. 1989) (en banc), cert. denied, 493 U.S. 811, 58 U.S.L.W. 3213, 107 L. Ed. 2d 24, 110 S. Ct. 56 (1989). In addition, the relatedness and continuity necessary to show a pattern of racketeering acts may be established by relating two seemingly independent acts to the RICO enterprise. Id. at 1383.

In defining the relevant pattern of racketeering activity in paragraph 57 of its amended complaint, the Government alleged in substance that Cirillo and Faicco, officers of Local 359, and Vincent Romano, as de facto head of Local 359, "together with and/or aided and abetted by the Genovese Family" demanded and received money from Market employers and persons acting in the interests of those ...


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