money was acquired too far in the past for disgorgement to be part of an effort to prevent and restrain future conduct. Carson at 1182. Based on this reasoning, the defendants argue that disgorgement is not an available remedy in this case because the most recent alleged RICO misconduct took place in February 1985, a date more than ten years before the present motion was filed.
However, the situation at hand presents a sharp contrast to the facts in Carson and does fit within the guidelines drawn by the Second Circuit for a proper order of disgorgement in a civil RICO case. "Ordinarily, the disgorgement of gains ill-gotten long in the past will not serve the goal of 'preventing and restraining]' future violations unless there is a finding that the gains are being used to fund or promote the illegal conduct, or constitute capital available for that purpose. The disgorgement of gains ill-gotten relatively recently is more easily justifiable on the basis of the same analysis." Id. at 1182.
In Carson, the defendant had been removed from his union position five years before the disgorgement was ordered, and had long been removed from any involvement in the activities on which his conviction was based. However, unlike Carson, the defendants in this case continue to be actively involved in the identical activities upon which this RICO suit is predicated. Because the corporate defendants in this case will continue to be involved in the Long Island carting industry even if the government's requested relief is granted, the monies these corporations gained illegally obviously constitute capital available for the purpose of funding or promoting illegal conduct. See Carson at 1182. Similarly, Mr. Ferrante, although enjoined from participation in the Long Island carting industry, has the capital obtained through his companies' illegal activities at his disposal to use in promoting or funding illegal conduct through family members, who now control the corporations in which he was enjoined from participating.
In addition, the government has asked for disgorgement for the "express purpose" of funding the costs of monitoring future carting industry activities of the defendants. Plaintiff's Reply Memo. of Law at 35. Thus, the disgorgement in this case is clearly directed towards the prevention of future illegal conduct, and is therefore a permissible remedy for civil RICO violations under the limitations imposed by Carson.
IV. Separate Trials
The defendants also request that the court sever the Unique defendants for separate trial pursuant to Federal Rule 42(b). In response, the government argues that a separate trial would result in a duplication of evidence and witnesses, presenting a waste of judicial resources and prejudice for the government.
Rule 42(b) provides that "the court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim . . ." Fed. R. Civ. Proc. 42(b). In this case, the defendants have not made any argument that severing the defendants here would further the court's convenience or avoid prejudice, nor that severing the defendants would be conducive to expedition and economy. Because the defendants have not made any argument that the conditions under which separate trials are granted under Rule 42(b) have been met, their motion to sever the defendants for separate trial, although mooted by this decision, is nevertheless denied.
The Relief Requested
The defendants' objections to the government's request that they be directed to disgorge the proceeds derived from their participation in unlawful enterprises has already been addressed and rejected.
The defendants also object to the government's request that they be subject to the provisions of the Carting Industry Monitorship previously established by the Consent Judgment entered by this court on February 28, 1994.
18 U.S.C. § 1964 confers jurisdiction upon district courts to prevent and restrain violations of the RICO statute "by issuing appropriate orders." That broad grant of authority clearly implies the grant of broad discretion in determining what orders are appropriate to prevent continuing violation of the statute. The direction to "restrain violations" also clearly implies the propriety of issuing injunctions which are the classic remedies for restraining prohibited conduct. The appointment of trustees, monitors, investigators or others with similar functions to oversee the continued activities of defendants to assure that future violations of the RICO statute will not be committed have been deemed to be "appropriate orders" within the contemplation and meaning of § 1964. See, e.g., United States v. Local 560, International Brotherhood of Teamsters, 581 F. Supp. 279 (D.N.J. 1984), aff'd, 780 F.2d 267 (3d Cir. 1985), cert. denied, 476 U.S. 1140, 90 L. Ed. 2d 693, 106 S. Ct. 2247 (1986); United States v. Local 30, United States Tile and Composition Roofers, 686 F. Supp. 1139 (E.D. Pa. 1988), app. dismissed, 871 F.2d 401 (3d Cir.), cert. denied, 493 U.S. 953 (1989); United States v. Local 295, International Brotherhood of Teamsters, 784 F. Supp. 15 (E.D.N.Y. 1992).
Accordingly, the defendants are directed to disgorge the proceeds derived from their unlawful activities into the court-administered fund established for the purpose of monitoring the carting industry on Long Island pursuant to the consent judgment entered by this court dated February 28, 1994. The amount of those proceeds are to be determined in appropriate proceedings conducted for that purpose by Chief Magistrate-Judge Chrein to whom it is referred.
The defendants are, in addition, hereby directed to be subject to all of the provisions of the Carting Industry Monitorship previously established by this court by the consent judgment referred to above.
I. Leo Glasser
United States District Judge
Dated: Brooklyn, New York
February 9th, 1996
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