with the IRB, after which time the Investigations Officer had five days to reply.
Porta submitted a post-hearing memorandum, dated August 18, 1995, to the IRB. In this document, Porta argued that his contacts with members of organized crime "were infrequent, of short duration, . . . and were frequently serendipitous." Post Hearing Memorandum of Michael Porta, Jr. at 1 (August 18, 1995). Porta also asserted that, because he "was never informed by the IBT that casual contacts with individuals allegedly involved with organized crime could be considered a violation of the IBT Constitution," it would be unfair to subject him to a penalty based on such conduct. Id. at 2. Porta further claimed that his "contacts with individuals allegedly tied to organized crime [are] significantly diminished because he never held office with nor was ever employed in any capacity by Union 807 . . . ." Id. Finally, Porta contended that the IRB should not find that he knowingly associated with members of organized crime while a member of the IBT because "the casual nature" of his contacts with members of organized crime had a "lack of any impact" upon Local 807 and because Porta's "exemplary" work performance rendered such a finding inappropriate. Id.
Based on the evidence produced at the hearing, the IRB held that it had been established by a preponderance of the evidence, see IRB Rules, P J.6, that Porta at all pertinent times had "brought reproach upon the IBT by knowingly associating with members of the Gambino LCN Family while a member of Local 807, through contacts that were purposeful and not incidental or fleeting." IRB Opinion and Decision at 16. The IRB found the hearsay evidence it heard at Porta's hearing to be reliable. Id. at 10. It further found that Porta's testimony at the hearing and in depositions confirmed that Porta knowingly associated with various members of organized crime while he was a member of Local 807. Id. at 10-15. In addition, the IRB addressed the four arguments Porta raised in his post-hearing memorandum and rejected each one. Id. at 16-18. Although the IRB's Opinion and Decision did not address the testimony given at the hearing by Porta's four witnesses, it was not obliged to do so because none of the testimony presented by these witnesses "called into question the bulk of the allegations" made against Porta by the IRB. See United States v. International Brotherhood of Teamsters (Joseph Cimeno, Jr.), 964 F.2d 1308, 1312 (2d Cir. 1992), aff'g 777 F. Supp. 1130 (S.D.N.Y. 1991).
Having held that the charges against Porta had been proved, and having considered the seriousness of the charges, the IRB permanently barred Porta from holding membership in or any position with the IBT or any IBT-affiliated entity in the future. IRB Opinion and Decision at 18-19. The IRB further ruled that Porta may not hereafter obtain employment, consulting, or other work with the IBT or any IBT-affiliated entity. Id. at 18-19.
This Court received IRB Application XXIII consisting of the IRB's Opinion and Decision concerning Porta together with supporting exhibits on October 6, 1995. By letter dated that same day, Chambers informed Porta that if he wished to object to the IRB's findings and rulings, he could submit any objections to IRB Application XXIII to this Court no later than fourteen days from the date of the letter. Letter from James C. Maroulis, Law Clerk to the Honorable David N. Edelstein, United States District Judge, to Charles L. Weintraub, Esq., Defense Counsel (October 6, 1995) (on file with Clerk of the Southern District of New York). On October 25, 1995, Chambers spoke with Weintraub and learned that Porta had terminated Weintraub's services effective that day, October 25, 1995. Subsequently, Weintraub confirmed this conversation in letters addressed to this Court. Letter from Charles L. Weintraub, Esq., to the Honorable David N. Edelstein, United States District Judge (November 6, 1995) (on file with Clerk of the Southern District of New York); Letter from Charles L. Weintraub, Esq., to the Honorable David N. Edelstein, United States District Judge (October 26, 1995) (on file with Clerk of the Southern District of New York). On October 27, 1995, this Court received via Express Mail a handwritten letter from Porta dated October 27, 1995, objecting to the IRB's findings and rulings. Porta included with this letter a copy of the post-hearing memorandum prepared by Weintraub for Porta on August 18, 1995.
Porta's October 27, 1995, letter objecting to the IRB's Opinion and Decision is untimely because this Court did not receive it until well-past the fourteen-day deadline set by this Court for the submission of objections. The fact that Porta terminated his attorney's services does not alter the status of Porta's submission as untimely for two reasons. First, this termination occurred after the fourteen-day deadline for the submission of objections had expired. Second, Porta fired Weintraub only after Weintraub received this Court's letter regarding the submission deadline for submitting objections. Porta had ample notice of his time to submit objections, and he cannot unilaterally extend his time to file objections by terminating Weintraub's services. Consequently, this Court did not consider Porta's objections in its review of IRB Application XXIII.
Having carefully reviewed the IRB's Opinion and Decision, as well as the exhibits attached thereto, this Court finds that the IRB's decision is not arbitrary or capricious. See IRB Rules, P O ("In reviewing actions of the IRB, this Court shall apply the same standard of review applicable to review of final federal agency action under the Administrative Procedure Act."); see also May 6, 1994 Opinion & Order, slip op. at 4 (S.D.N.Y. 1994).
Moreover, this Court's finding in the instant case would remain unchanged even if this Court considered the objections Porta submitted to the IRB's Opinion and Decision. This Court has reviewed the substance of Porta's objections and finds that each of them is meritless.
Accordingly, the decision of the IRB is affirmed in its entirety.
DATED: New York, New York
November 21, 1995
David N. Edelstein