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UNITED STATES v. PRIVATE SANITATION INDUS. ASSN. O

October 20, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
PRIVATE SANITATION INDUSTRY ASSOCIATION OF NASSAU/SUFFOLK, INC., et al., Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff United States moves for partial summary judgment against defendant Salvatore Avellino. Defendant Avellino cross-moves to stay these civil proceedings during the pendency of two grand jury investigations and, alternatively, if his motion to stay is denied, an extension of time to respond to the plaintiff's summary judgment motion. For the reasons stated below, Avellino's motion to stay is denied; he is granted 20 days from the date of this order to file and serve a response to the government's summary judgment motion; and oral argument on the government's motion will be scheduled thereafter.

 FACTS

 The United States commenced this civil RICO action against 112 defendants, alleging that they engaged in a pattern of racketeering activity by committing illegal acts and by using force and threatening to use force against other individuals with respect to the collection of solid waste on Long Island. The underlying facts and the identities of the various defendants are set out in this Court's Memorandum and Order, dated June 29, 1992, familiarity with which is assumed.

 Avellino has been involved in many judicial proceedings involving these activities. In 1985, the State of New York commenced a civil antitrust action against Avellino and others on behalf of itself and numerous local governments and as parens patriae on behalf of all citizens who paid for rubbish removal on Long Island. State of New York v. Salem Sanitary Carting Corp., CV-85-0208 (E.D.N.Y. 1985) (Glasser, J.). In December 1991, Avellino agreed to pay compensatory damages to the represented class in the amount of $ 231,000; on April 24, 1992, this Court approved a final settlement in that case, enjoining Avellino from entering into or enforcing any conspiracy in restraint of trade for the sale of private garbage collection services, granting access to New York State to inspect certain contracts for five years, and permitting state investigators to inspect the corporate records of Salem, to conduct interviews, and to propound interrogatories. Affidavit of Brian Linder in Support of Defendant Avellino's Motion to Stay at PP 6-7 ("Linder Affidavit").

 Similarly, in 1984 Avellino was charged in separate indictments by state grand juries in Suffolk County, inter alia, for coercing, conspiring, and violating New York antitrust laws *fn1" and for conspiring to bribe three Town of Huntington, Long Island, officials to receive favorable rate increases for private haulers of solid waste. On October 17, 1986, Avellino pleaded guilty to the crime charged of coercion in the first degree in violation of New York Penal Law § 135.65(1) (McKinney 1987), a class D felony. Transcript of October 17, 1986 plea allocution in New York State County Court, Suffolk County ("Plea Transcript") at pp. 7-8, 14-15 (Exhibit 8 to McCormick Declaration). Avellino stated:

 Between on or about December 1981 and October 1983, in the County of Suffolk, I, Salvatore Avellino, intentionally and knowingly violated the law by inducing Robert Kubecka and Jerome Kubecka from refraining from bidding for and soliciting certain carting customers by instilling in the Kubeckas' a fear that I would damage the Kubeckas' property.

 McCormick Declaration at PP 41-42; Plea Transcript at p. 15. Likewise, Avellino also pleaded guilty to the crime charged of conspiracy in the fifth degree in violation of New York Penal Law § 105.05 (McKinney 1987), a class A misdemeanor, by conspiring to commit the felony of second degree bribery. McCormick Declaration at P 57; Plea Transcript at pp. 7-8, 17-19. Avellino stated:

 Between on or about August, 1982 through on or about December, 1983, in the County of Suffolk, I, Salvatore Avellino, with the intent that conduct constituting bribery in the second degree be performed, . . . agreed to confer a benefit, to wit: Political contributions upon Anthony [sic] Romersa and Vito Biondi, public servants, upon the understanding that their vote, opinion and action would be influenced as public servants.

 McCormick Declaration at P 57; Plea Transcript at p. 18.

 The government now moves for partial summary judgment against Avellino contending that there are no genuine factual issues in dispute to preclude granting that motion as a matter of law because all the requisite elements of civil RICO liability have been established by Avellino's guilty pleas, the testimony of various government informants in the course of other proceedings, and through transcripts of intercepted communications involving Avellino and others. In addition, the government seeks injunctive relief and disgorgement of profits against Avellino.

 In lieu of submitting affidavits in opposition to the government's partial summary judgment motion, defendant Avellino cross-moves to stay this civil action while two grand jury investigations in the Eastern District of New York are pending, and, alternatively, if that motion to stay is denied, additional time to respond to the government's motion. In support of his motion to stay, Avellino submits subpoenas from the two grand juries. He also speculates that a ...


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