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U.S. v. VULPIS

November 18, 1991

UNITED STATES OF AMERICA,
v.
MICHAEL VULPIS, DEFENDANT.



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.

Factual Background

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 Dominick.

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 corporation could

  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 ...


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