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UNITED STATES v. INTERNATIONAL BHD. OF TEAMSTERS

April 27, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, et al., Defendants. IN RE: APPLICATION LXVIII OF THE INDEPENDENT ADMINISTRATOR


Edelstein


The opinion of the court was delivered by: DAVID N. EDELSTEIN

EDELSTEIN, District Judge:

 This opinion emanates from the voluntary settlement in the action commenced by the plaintiff United States of America (the "Government") against the defendants International Brotherhood of Teamsters (the "IBT") and the IBT's General Executive Board (the "GEB") embodied in the voluntary consent order entered March 14, 1989 (the "Consent Decree"). The Consent Decree provided for three Court-appointed officials, the Independent Administrator to oversee the Consent Decree's remedial provisions, the Investigations Officer to bring charges against corrupt IBT members, and the Election Officer to oversee the electoral process leading up to and including the 1991 election for International Officers (collectively, the "Court Officers"). The goal of the Consent Decree is to rid the IBT of the hideous influence of organized crime through the election and disciplinary provisions.

 Application LXVIII presents for this Court's review the decision of the Independent Administrator regarding a disciplinary charge brought by the Investigations Officer against John M. Trivigno, the President and Business Representative of IBT Local Union 398 in Rochester, New York. The Independent Administrator found that Trivigno brought reproach upon the IBT by knowingly associating with members of the Rochester Organized Crime Family of La Cosa Nostra. For this violation of the IBT Constitution, the Independent Administrator permanently banished Trivigno from Local 398 and the IBT.

 Trivigno argues that he was denied due process and that the decision of the Independent Administrator is arbitrary and capricious. In the alternative, Trivigno argues that the penalty imposed is too severe. This Court finds that Trivigno's arguments are without merit and that the decision of the Independent Administrator is fully supported by the evidence. Accordingly, for the reasons stated below, the decision of the Independent Administrator is affirmed.

 I. BACKGROUND

 The Investigations Officer charged that Trivigno brought reproach upon the IBT in violation of Article II, Section 2(a) and Article XIX, Sections 6(b) of the IBT Constitution by knowingly associating with members of the Rochester Organized Crime Family of La Cosa Nostra, including John Fiorino, Richard Marino, Joseph Rossi, Joseph Trieste, Joseph LaDolce, Anthony Oliveri, and Joseph Geniola. Article II, Section 2(a) is the IBT membership oath, which provides in relevant part that every IBT member shall "conduct himself or herself in a manner so as not to bring reproach upon the Union." Article XIX, Section 6(b) is a non-exhaustive list of disciplinary charges that may be filed against IBT members. One such charge is violating the IBT membership oath. See Article XIX, ยง 6(b)(2).

 Pursuant to paragraph F.12(C) of the Consent Decree, the Independent Administrator must decide disciplinary hearings using a "just cause" standard. The Investigations Officer has the burden of establishing just cause by a preponderance of the evidence. December 27, 1990 Opinion & Order, 754 F. Supp. 333, 337 (S.D.N.Y. 1990). After conducting a hearing where Trivigno was represented by counsel and receiving post-hearing briefs, the Independent Administrator issued a 29 page decision. The Independent Administrator found that the Investigations Officer satisfied his burden of proving that Trivigno associated with members of the Rochester Family of La Cosa Nostra. (Decision of the Independent Administrator ("Ind. Admin. Dec.") at p. 25).

 Specifically, the Independent Administrator found that John Fiorino, Richard Marino, Joseph Rossi, Joseph Trieste, Joseph LaDolce, Anthony Oliveri, and Joseph Geniola are, or were, *fn1" members of the Rochester Family of La Cosa Nostra. The Independent Administrator based these findings on a number of sources. The Independent Administrator credited the declaration of Special Agent Robert D. Ulmer of the Federal Bureau of Investigations ("FBI"). Agent Ulmer, a supervisory FBI Agent with eighteen-years experience, has specialized in the criminal activities of members and associates of the Buffalo and Rochester Families of La Cosa Nostra. Agent Ulmer's declaration provides information about the existence and activities of the Rochester Family of La Cosa Nostra, and identified Fiorino, Marino, Rossi, Trieste, LaDolce, Oliveri and Geniola as members of the Rochester Crime Family. The Independent Administrator also credited the testimony of Agent John A. Grande of the United States Department of Labor's Office of Labor Racketeering, which corroborated the testimony of Agent Ulmer. Agent Grande, a twenty-year veteran of the Rochester Police Department and formerly head of its intelligence unit, testified that Fiorino, Marino, Rossi, Trieste, LaDolce, Oliveri and Geniola were members of the Rochester Family of La Cosa Nostra.

 Both the findings of the United States Senate's Permanent Subcommittee on Investigations and certain criminal convictions also corroborate the testimony of Agents Ulmer and Grande. The Permanent Subcommittee on Investigations identified Marino as the Underboss of the Rochester Family of La Cosa Nostra and Rossi as a Captain in the Family. In fact, Marino and Rossi were convicted of participating in a criminal racketeering enterprise at the Russotti trial. LaDolce and Geniola were convicted for being members of a criminal racketeering enterprise -- identical to the Rochester Family of La Cosa Nostra -- in United States v. Amico, 87 Cr. 1771 (W.D.N.Y.).

 After finding that Fiorino, Marino, Rossi, Trieste, LaDolce, Oliveri, and Geniola were members of the Rochester Family of La Cosa Nostra, the Independent Administrator found that Trivigno had extensive personal contacts with these men for nearly twenty years and that he knew of their organized crime connections. At the Russotti trial, Oliveri testified that Trivigno attended several meetings where business of La Cosa Nostra was discussed, including a planned murder attempt in which Trivigno was to drive a motorcycle during the proposed hit. *fn2" At Trivigno's disciplinary hearing, Agent Grande testified that he personally observed Trivigno associating with Fiorino, Marino, LaDolce, Trieste and Geniola. Agent Grande testified that over several years he saw Trivigno in the company of these members of the Rochester Crime Family at bars, coffee shops, restaurants and street corners. The Independent Administrator found that Rochester Police Department surveillances from 1978-88 corroborated Agent Grande's testimony.

 In Trivigno's sworn testimony before his disciplinary hearing, Trivigno admitted that he worked and socialized with Trieste. In an FBI interview with Dominic Tadeo, a member of La Cosa Nostra, Tadeo stated that several members of the Rochester Crime Family -- including himself, Trieste, Geniola, and three other made members of the Family -- met to discuss mob business. When Tadeo asked if Trivigno and LaDolce were informed of the meeting, Trieste told him that "Trivigno is with 'us,' but did not want to come to this meeting." (Ind. Admin. Dec. at p. 14).


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