not establish facts necessary for a conviction under §§ 200.00, 20.00, or 110.05(6) of the N.Y. Penal Law. He asserts that he could not be liable under those sections where he learned of the bribe after the officials had cast their tainted votes. Def's Mem. of Law at 7-9. His position lacks merit for the reason that his conduct would create liability under N.Y. Penal Law § 200.20, which makes it a class E felony to reward past official misconduct. Thus, Avellino's guilty pleas conclusively establish that he committed at least two prerequisite predicate acts necessary for RICO liability.
Finally, there is no genuine issue of material fact pertaining to the other elements of liability under RICO. Avellino argues that the government has failed to show that the aforementioned predicate racketeering acts constitute a pattern of racketeering activity. Def's Mem. of Law at 9-10.
"To prove a pattern of racketeering activity a plaintiff . . . must show that the racketeering predicates are related, and that they amount to or pose the threat of continued criminal activity." Private Sanitation, 793 F. Supp. at 1139 (quoting H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989)). It is beyond cavil that the threats against the rival carters Kubecka and the bribes are related to the furtherance of the Lucchese Family's control of the Long Island waste industry, and that Avellino and the other named defendants embody a threat to the domination of an industry that has been plagued with corruption for the past decade.
Similarly, the government has shown that Avellino was employed by or was associated with an enterprise. Section 1961(4) provides that:
"Enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.
18 U.S.C. § 1961(4). While Avellino focuses on that part of this Court's earlier decision in which it was noted that the government may be required to demonstrate the existence of an "enterprise" encompassing all members and affiliates of the Long Island carting industry, Private Sanitation, 793 F. Supp. at 1127, this Court has already held that PSIA and Local 813 constitute enterprises within the meaning of RICO. Id. Consequently, this argument is also meritless.
2. Motion Supported by Inadmissible Evidence
Avellino contends that the government's motion must be denied because it is supported by inadmissible evidence. Rule 56(e) of the Federal Rule of Civil Procedure provides that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e). This rule only requires a party to authenticate its proffered evidence when the adverse party challenges that evidence. See H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454 (2d Cir. 1991).
Avellino raises three challenges to the transcripts of intercepted communications involving him and his co-conspirators which were obtained pursuant to state orders. Exh. 3 to McCormick Decl. To demonstrate Avellino's involvement in the Long Island solid waste industry, declarant McCormick refers to conversations in Avellino's Jaguar, see, e.g., McCormick Decl. at PP 22-30, and to a conversation intercepted between John Corrigan, former executive director of PSIA, and Cortland Wood. Id. at P 17.
First, Avellino questions whether the government obtained the necessary judicial approval to unseal the tapes as required by 10 U.S.C. § 2517(5). In United States v. Marion, 535 F.2d 697, 701 (2d Cir. 1976), the court held that federal law controls where a defendant claims that a law enforcement agency violated the provisions of an eavesdropping warrant issued by a state court. Second, Avellino argues that the government must "produce clear and convincing evidence of authenticity and accuracy" of the tapes, United States v. Fuentes, 563 F.2d 527, 532 (2d Cir.), cert. denied sub nom. Sansone v. United States, 434 U.S. 959, 54 L. Ed. 2d 320, 98 S. Ct. 491 (1977), and show that they have a judicial seal or explain the absence of such a seal, 18 U.S.C. § 2518(8)(a), before the tapes will be admissible at trial. Finally, he states that certain statements contained in those tapes are inadmissible hearsay.
It is clear that each of these challenges is insufficient to defeat the government's motion. Avellino may not relitigate the admissibility of tapes which he challenged at the earlier state proceeding in which he pleaded guilty. The lower court denied suppression of the tapes on most of the arguments raised by Avellino and his co-defendants, only leaving open their objection "as to the existence of one duplicate tape of intercepted conversations in Avellino's Jaguar automobile (Tape # 768) and as to the contents of four other tapes of intercepted conversations in [the] Jaguar  (Tapes # 982, 982A, 985 and 1037)." Reply Memo. of Law in Further Supp. of Pl's Mot. for Summary J. at 22.
However, once Avellino pleaded guilty, no hearing was ever held with respect to those five tapes. Thereafter, Avellino appealed his conviction to the Appellate Division, challenging the admissibility of all the tapes on various grounds, including whether the Director of the Organized Crime Task Force may be statutorily authorized to apply for a court-authorized eavesdropping warrant in light of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520) and whether the tapes were judicially sealed in a timely fashion. The Appellate Division upheld the Director's authority to apply for an eavesdropping warrant and summarily denied the remaining challenges as meritless or unpreserved for appeal. People v. Vespucci, 144 A.D.2d 48, 536 N.Y.S.2d 487, 490-92 (2d Dep't 1988), aff'd, 75 N.Y.2d 434, 554 N.Y.S.2d 417, 553 N.E.2d 965 (1990), cert. denied sub nom. Corrigan v. New York, 498 U.S. 814, 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990). In affirming the Appellate Division, the New York Court of Appeals expressly rejected the defendants' argument that the tapes should have been suppressed because they were not timely sealed. Id. at 441-42, 554 N.Y.S.2d at 421, 553 N.E.2d at 969. While the exact grounds upon which Avellino and his co-defendants appealed the lower court's denial of their motion to suppress is not clear from the government's moving papers, Avellino is nonetheless barred from challenging the tapes at trial. He is either collaterally estopped from relitigating the issues already addressed by the New York Courts, Metromedia Co. v. Fugazy, 983 F.2d 350 (2d Cir. 1992) (citing cases), or he is barred by the doctrine of res judicata from litigating any claim or argument which he could have raised before those courts, see Schuylkill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 306-07, 165 N.E. 456, 457 (1929) (Cardozo, J.).
Furthermore, Avellino's challenges to the admissibility of the tapes is insufficient to defeat the government's summary judgment motion. The transcripts of the intercepted conversations that are annexed to Agent McCormick's declaration do not appear to include any of the disputed tapes, i.e, Tape # 768, 982, 982A, 985 and 1037. Moreover, even if Agent McCormick relied on those tapes, and despite Avellino's general challenge to all of the tapes on the ground that the government has not demonstrated that the tapes were resealed after being used in other proceedings, United States v. Long, 917 F.2d 691, 699-700 (2d Cir. 1990) (citing United States v. Scopo, 861 F.2d 339, 347 (2d Cir. 1988), cert. denied, 490 U.S. 1048, 104 L. Ed. 2d 426, 109 S. Ct. 1957 (1989)), the government has properly supported its motion with other admissible evidence. The government points to the trial testimony of three government informants, Alphonse D'Arco, Peter Chiodo and Salvatore Gravano, to show that Avellino is involved in the Long Island carting industry, see, e.g., McCormick Decl. at PP 6, 8, 11, 14, 18, 19, and that he collects tribute for garbage collection from Long Island businesses, see, e.g., id. at PP 37, 39-42. In addition, while Agent McCormick cites portions of the tapes to show Avellino's involvement in coercing the Kubeckas, id. at PP 52-56, his guilty plea to coercion in the first degree conclusively establishes the facts underlying the predicate act of the Hobbs Act violation. Similarly, while the government cites portions of the intercepted conversations to show that Avellino was involved in bribing Romersa and Biondi, id. at PP 67, 70, 71, there is sufficient admissible evidence to establish the predicate act of bribery, including his guilty plea to conspiracy in the fifth degree, an $ 800 check issued by PSIA to the Postmaster of Melville for postage stamps, and an entry in PSIA's cash disbursements journal listing Avellino's approval for that payment. Id. at PP 68, 69, 73. Therefore, the issue of admissibility of the tapes is immaterial to the determination of the government's motion for partial summary judgment.
Finally, the statements which Avellino attempts to challenge as inadmissible hearsay appear to fit within various exceptions to the hearsay rule, including personal statements of a party-opponent (Fed. R. Evid. 801(d)(2)(A)); and statements of co-conspirators (Fed. R. Evid. 801(d)(2)(E)).
See, e.g., H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454 (2d Cir. 1991) (district court properly considered three documents constituting admission of party opponent in summary judgment context). Therefore, Avellino's opposition to the government's motion on these grounds is without merit.
3. Additional Discovery under Rule 56(f)
Under Rule 56(f) of the Federal Rules of Civil Procedure a court may, inter alia, order a continuance to permit a party opposing a summary judgment motion to conduct discovery to ascertain "facts essential to justify the party's opposition. . . ." Fed. R. Civ. P. 56(f). "[A] party seeking such discovery must file an affidavit explaining (1) what facts are sought and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Hudson River Sloop Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414, 422 (2d Cir. 1989) (citing Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 926 (2d Cir. 1985)).
Avellino premises his request for a continuance under Rule 56(f) due to the stay of discovery in this action. Avellino's request is disingenuous. He has repeatedly invoked his fifth amendment privilege in an earlier proceeding
and intends to invoke that privilege in this proceeding. See Aff. of Brian Linder, dated November 9, 1992, at P 2 ("Upon my advice, in view of the very real threat of an impending criminal prosecution, Mr. Avellino is unwilling to waive his 5th Amendment privilege and provide an affidavit in response to plaintiff's motion."). There is no reason to grant a continuance to a litigant who has personal and intimate knowledge of the underlying facts for the purported purpose of conducting discovery to ascertain those identical facts. Accordingly, Avellino's request is denied.
4. Constitutionality of Broad Injunctive Relief
To further the salutary purposes of RICO, Congress authorized district courts to:
prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.
18 U.S.C. § 1964(a). In furtherance of that stated purpose, this Court has the authority "to enter reasonable injunctions against RICO violators restricting their future business activities. United States v. Bonanno Organized Crime Family of La Cosa Nostra, 683 F. Supp. 1411, 1441 (E.D.N.Y. 1988), aff'd, 879 F.2d 20 (2d Cir. 1989). In the exercise of that authority, it is hereby ordered that:
(1) defendant Avellino refrain from participating directly or indirectly in the carting industry, any company engaged in the business of carting, any trade waste association and in the affairs of Local 813;
(2) defendant Avellino be divested of his interests in the carting industry and in PSIA enterprises;
(3) defendant Avellino disgorge the illicit proceeds of his racketeering activity;
(4) defendant Avellino refrain from associating with the other defendants in this action for any commercial purpose; and
(5) defendant Avellino refrain from associating with known members and associates of organized crime for any commercial purpose.
With respect to the injunction against associating with other defendants and with known members and associates of organized crime as indicated in (4) and (5) above, its issuance is designed to further the significant governmental interest in eliminating the insidious impact upon a captive community of corruption and racketeering in the Long Island carting industry. See, e.g., United States v. International Bhd. of Teamsters, 941 F.2d 1292, 1297 (2d Cir. 1991) (upholding similar injunctive relief to further significant governmental interest in eradicating crime and corruption in labor unions).
For the foregoing reasons, Avellino's request for a continuance is denied and the government's motion for partial summary judgment providing for broad injunctive relief against defendant Salvatore Avellino is granted. Accordingly, it is hereby ordered that Avellino is enjoined from the activities listed in the aforementioned five decretal paragraphs.
Dated: Brooklyn, New York
December 3, 1992
I. Leo Glasser, U.S. D. J.