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UNITED STATES v. DISTRICT COUNCIL OF NEW YORK CITY

February 3, 1992

UNITED STATES OF AMERICA, Plaintiff, against DISTRICT COUNCIL OF NEW YORK CITY AND VICINITY OF THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, FREDERICK W. DEVINE, President, JOHN R. ABBATEMARCO, First Vice President, GEORGE J. ALBERT, Second Vice President, ROBERT J. CAVANAUGH, Secretary-Treasurer, PASCHAL McGUINNESS, former President, IRVING ZEIDMAN, former First Vice President, FRANCIS J.P. McHALE, former Secretary-Treasurer, ANTHONY SALERNO, a/k/a "Fat Tony", VINCENT DiNAPOLI, LOUIS DiNAPOLI, PETER DeFEO, ALEXANDER MORELLI, a/k/a "Black Alex", LIBORIO BELLOMO, a/k/a "Barney", Defendants.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

 HAIGHT, District Judge:

 This case is before the Court on defendants' motions for orders pursuant to Fed.R.Civ.P. 72 setting aside Magistrate Judge Katz's Order and Opinion dated November 8, 1991.

 For the reasons set forth below, defendants' motions are denied.

 BACKGROUND

 The allegations of the Supplemental Complaint are discussed in the Court's decision denying defendants' motion to dismiss the complaint, United States v. District Council of New York City, F. Supp. , 1991 U.S. Dist. LEXIS 16713 (S.D.N.Y. November 20, 1991), familiarity with which is assumed.

 Discovery is ongoing and the discovery deadline established by Judge Katz is presently August 31, 1992.

 By Order and Opinion dated November 8, 1991 ("Order and Opinion") Judge Katz denied the District Council's motion to compel the testimony of two non-party witnesses, Leonard Bush and Harvey Anikstein, and to compel their production of documents against their assertions of the fifth amendment privilege against self-incrimination. The District Council sought to question these witnesses about earlier immunized testimony before a state grand jury and/or state or federal prosecutors. Bush and Anikstein have asserted their fifth amendment privilege, arguing that their testimony in this civil action is not subject to immunity. Judge Katz held that he could not find that these witnesses would never be prosecuted on the basis of their testimony in this case, that the Court cannot grant immunity, and that whether any testimony that is given is covered by the previous grant of immunity is an issue would have to be decided at any future criminal proceeding. Order and Opinion at 2-4.

 Judge Katz also denied the motions of defendants McGuinness, Zeidman, Devine and McHale for stays of that portion of discovery directed at them, that is their own depositions and document production. These defendants argue that this discovery leaves them with a choice of either mounting a full defense in this civil case, and thus risking criminal liability, or invoking their fifth amendment privileges. Judge Katz denied these motions because he found that, particularly with the acquittal of McGuinness last summer, the defendants do not have criminal proceedings pending against them and so have not shown the special circumstances required for a stay of civil discovery. Order and Opinion at 7-15.

 Defendants have filed timely motions to vacate these rulings and the government has filed papers in opposition.

 DISCUSSION

 Motion to Compel

 Defendant District Council moves for an order pursuant to Fed. R. Civ. P. 72 setting aside the Order and Opinion denying the District Council's motion to compel the testimony of Bush and Anikstein. Defendant moves under Fed. R. Civ. P. 37(a) for an order requiring Bush and Anikstein to appear for deposition and produce documents and an order barring Bush and Anikstein from asserting the fifth amendment privilege about their testimony to the state grand jury ...


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