The opinion of the court was delivered by: Motley, District Judge.
OPINION RE CRIMINAL CONTEMPT
Based on the evidence presented on August 16 and 17, 1991, this
court holds Michael Vulpis in criminal contempt for knowingly and
wilfully disobeying orders of this court.
This criminal contempt proceeding stems from a related case
before this court entitled United States v. Paccione, 89 Crim.
446 (CBM). Although Michael Vulpis is not a defendant in that
case, his involvement with the defendants in that case has a
lengthy history and merits some attention.
Vulpis was one of the original owners of Rosedale Carting Corp.
("Rosedale"), a New York City commercial and industrial waste
collection company founded by himself and his brother, Daniel
Vulpis, in 1954. In 1977, he became the sole shareholder of
Rosedale when the company bought out his brother.
By 1987, he had transferred ownership and control of Rosedale
to his sons Anthony Vulpis and Dominick Vulpis. However, on
November 4, 1988 he resumed control when he was appointed
receiver of Rosedale after a dispute arose between Anthony and
On June 14, 1989, a twelve count indictment was unsealed in
United States v. Paccione, 89 Crim. 446 (CBM), naming Rosedale
and Anthony Vulpis, among others, defendants in a criminal
prosecution concerning a massive illegal dumping operation. Count
One of the indictment charged each defendant with violation of
section 1962(c) of the Racketeer Influenced and Corrupt Practices
Act ("RICO"), 18 U.S.C. § 1962(c), by conducting and
participating in the affairs of an enterprise, which was
comprised of all defendants, through a pattern of racketeering.
The racketeering acts alleged included mail and wire fraud,
illegal disposal of medical wastes, and fraudulent statements to
city officials to secure disposal permits. Count Two of the
indictment charged each defendant with conspiracy to violate
RICO, in violation of 18 U.S.C. § 1962(d). Counts Three through
Twelve charged instances of mail fraud, in violation of
18 U.S.C. § 1341.*fn1
On September 21, 1989, the court signed an Ex Parte Amended
Post-indictment Restraining Order pursuant to
18 U.S.C. § 1963(d)(1)(A) (the "Restraining Order"). GX 2, at 2.*fn2 This
order forbade the defendants "and other persons acting for or in
concert with the above-named defendants having actual knowledge
of this Order" from taking any actions prohibited by the order.
GX 2, at 2. One such prohibition stated that no defendant
transfer, sell, assign, pledge, hypothecate,
encumber, dissipate or move in any manner, or cause
to be transferred, sold, assigned, pledged,
hypothecated, encumbered, dissipated or moved in any
manner, any property or other interest owned or held
by one or more of said companies. . . .
GX 2, at 6. The sole exception noted was for expenditures made in
the ordinary course of business. GX 2, at 6, 9-10.
After a three month jury trial, verdicts were announced on June
8, 1990. Anthony Vulpis and Rosedale (and six other defendants)
were convicted of both the substantive RICO offense and
conspiracy to violate RICO, as well as five mail fraud offenses.
On the same day the verdicts were announced, the court approved
a Forfeiture Consent Order which settled the forfeiture issue in
the case. See GX 1. The Forfeiture Consent Order, which had
been agreed upon by the parties on June 6, 1990, directed certain
defendants to forfeit $22 million to the United States Government
within 90 days of their RICO convictions. GX 1, at 1. It also
explicitly stated that the Restraining Order would remain in
effect until the
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 ...