Government was paid. GX 1, at 3. Michael Vulpis signed the
Forfeiture Consent Order on behalf of Rosedale.
The defendants did not pay the $22 million to the Government
within the agreed upon ninety day period, nor have they since
paid anything. Therefore, they remain jointly and severally
liable for the full $22 million amount. See GX 1, at 2.
By an order dated June 19, 1990, Barrington D. Parker, Jr. was
appointed Trustee for the Government's interests in Rosedale and
several other defendant corporations, pursuant to the Forfeiture
Consent Order. See GX 3. The June 19, 1990 Order was amended,
nunc pro tunc, by an order dated November 10, 1990, which
further defined the Trustee's powers and duties. See GX 3A.
On March 15, 1991, at the request of the Trustee, Louis
D'Angelo was appointed chief executive officer of the defendants
corporations, which included Rosedale. See GX 6.
On April 12, 1991, Vulpis resigned as receiver of Rosedale as
part of a Settlement Agreement between D'Angelo, Parker and
Vulpis concerning a dispute about the ownership of certain
property belonging to Rosedale. See GX 5. As a condition to
certain payments which he would receive under the agreement,
Vulpis agreed to fully cooperate with the Trustee and Government
in the preservation of Rosedale's assets and in the disposition
of such assets in order to satisfy the $22 million fine. GX 5, at
4. Specifically, Vulpis agreed "to assist the U.S. in the
preservation of the assets of Rosedale" and "to take no steps to
impair the assets of Rosedale or to interfere with the business
operations of Rosedale." GX 5, at 5. Vulpis remained a consultant
to Rosedale. (Tr. 76-77).*fn3
After the Settlement Agreement was signed, however, D'Angelo
felt that Vulpis continued to interfere with Rosedale's
operation. (Tr. 78). D'Angelo consulted the Trustee and they
decided to remove Vulpis (Tr. 78). After receiving a letter on
July 1, 1991 advising him of his removal, Vulpis became very
distraught and threatened D'Angelo: "You haven't seen the last of
me." (Tr. 79).
D'Angelo testified that he noticed on or about August 5, 1991
that two Rosedale trucks had not picked up garbage from customers
on routes 103 and 114. (Tr. 80). It should be noted that while
actively associated with Rosedale, Vulpis "had access to all of
Rosedale's records, including its most valuable asset, its
customer lists." (Tr. 271; see tr. 74).
On August 9, 1991, the Government applied for an Ex Parte
Cease and Desist Order pursuant to 18 U.S.C. § 1963(e) to have
Michael Vulpis held in contempt, alleging that Vulpis had
violated court orders. There was no designation made in that
order as to the type of contempt sanction sought.
On August 16 and 17, 1991, this court held a contempt hearing
where the Government presented evidence that Vulpis attempted to
divert Rosedale accounts from two customers routes by directing
former employees of Rosedale to lie to customers about Rosedale's
status as a going concern, to deny customers any choice in
selecting a new carting company and to remove Rosedale decals
from businesses without the permission of the owners. (See tr.
During the hearing, the court learned upon inquiry that the
Government was seeking only civil contempt relief. Thereafter,
the court directed the Assistant United States Attorney in the
case to bring a criminal contempt case against Michael Vulpis as
well. That direction was made in open court in the presence of
Vulpis and his attorney.
At the conclusion of the hearing, the court held Vulpis in
civil contempt of its orders. (Tr. 279).
Pursuant to this court's direction, a criminal contempt hearing
was scheduled for September 11, 1991. On that date, the parties
appeared before this court and agreed that the evidence adduced
at the civil contempt proceeding on August 16 and
17, 1991 would constitute the entire record for the criminal
1. Notice was adequate.
Michael Vulpis was properly notified of the Government's
criminal contempt application. Rule 42(b) of the Federal Rules of
Criminal Procedure sets out the notice requirement in a criminal
A criminal contempt . . . shall be prosecuted on
notice. The notice shall state the time and place of
hearing, allowing a reasonable time for the
preparation of the defense, and shall state the
essential facts constituting the criminal contempt
charged and describe it as such. The notice shall be
given orally by the judge in open court in the
presence of the defendant or, on application of the
United States Attorney or of an attorney appointed by
the court for that purpose, by an order to show cause
or an order of arrest.
On August 16, 1991, during the civil contempt hearing, Michael
Vulpis was given notice of the criminal contempt proceeding which
would be brought against him on September 11, 1991. The notice
was given in open court, in the presence of Michael Vulpis and
his attorney, by the court as it directed the Government to bring
the action. The essential facts of the criminal contempt charged
were the same as those described in the Order to Show Cause
signed by the court on August 9, 1991 and in the papers submitted
by the Government in support of that order. The facts supporting
a criminal contempt citation were also established at the civil
contempt hearing on August 16 and 17, 1991. This notice satisfied
the notice requirement under Rule 42(b).
2. Each element of criminal contempt is satisfied.
The court's power to hold a defendant in criminal contempt
arises under 18 U.S.C. § 401, which states:
A court of the United States shall have power to
punish by fine or imprisonment, at its discretion,
such contempt of its authority, and none other, as —
(3) Disobedience or resistance to its lawful writ,
process, order, rule, decree, or command.
This court can impose sanctions for criminal contempt if it
finds beyond a reasonable doubt that Michael Vulpis "wilfully
violated the specific and definite terms of a court order."
United States v. Twentieth Century Fox Film Corp.,