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UNITED STATES v. INTERNATIONAL BHD. OF TEAMSTERS

November 21, 1996

UNITED STATES OF AMERICA, Plaintiff, against INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Defendant.

David N. Edelstein, U.S.D.J.


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge :

 This opinion emanates from the voluntary settlement of an action commenced by plaintiff United States of America against, inter alia, defendants International Brotherhood of Teamsters ("IBT") and the IBT's General Executive Board embodied in the voluntary consent order entered March 14, 1989 ("Consent Decree"). The goal of the Consent Decree is to rid the IBT of the hideous influence of organized crime through a two-phased implementation of the Consent Decree's various remedial provisions. In the first phase of the Consent Decree, these provisions provided for three court-appointed officers: the Independent Administrator to oversee the Consent Decree's provisions, the Investigations Officer to bring charges against corrupt IBT members, and the Election Officer to supervise the electoral process that led up to and included the 1991 election for International Union Office. In the second phase of the Consent Decree, the Independent Administrator was replaced by a three-member Independent Review Board ("the IRB").

 Currently before the Court is an application from Dennis E. Hickey, ("Hickey"), a member of IBT Local Union 813 ("Local 813" of "the Local"), for a stay of a sworn examination before the IRB scheduled for November 22, 1996. For the following reasons, Hickey's application for a stay is denied.

 BACKGROUND

 Hickey is a member of Local 813, located in New York, New York. In July 1996, the United States Attorney for the Eastern District of New York handed down a thirty-one count indictment charging Hickey and others of racketeering and mail fraud relating to the operation of certain carting business on Long Island, as well as of violating provisions of the Employee Retirement Income Security Act ("ERISA"). United States v. Dennis C. Hickey, et al., CR 96-693 (E.D.N.Y. July 1996). Hickey's father, Dennis C. Hickey, his mother, and Andrew Russo, the alleged acting boss of the Columbo La Cosa Nostra Family, are also named defendants in the indictment. Id. ; (Letter from Charles M. Carberry, Chief Investigator of the IRB, to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York ("Carberry Letter") at 1 (Nov. 21, 1996).) Hickey has pleaded not guilty to the charges against him, the charges are still pending, and there currently is no schedule for trial in this matter. (Letter from Deborah A. Schwartz, Esq., to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York ("Schwartz Letter") at 1 (Nov. 20, 1996).)

 On November 5, 1996, Hickey received a Notice of Sworn Examination from the IRB ("the Notice") informing him that Chief Investigator Charles Carberry ("Carberry") "would conduct a sworn in-person examination of [Hickey] in accordance with the powers granted to [Carberry] pursuant to Section H, Paragraphs (3) (c) and (7) of the Rules and Procedures for Operations of the Independent Review Board for the International Brotherhood of Teamsters ("Rules")." (Notice of Sworn Examination to Dennis E. Hickey from Charles Carberry, Chief Investigator of the IRB (Nov. 5, 1996).) The Notice further informed Hickey that he had "the right to be represented by legal counsel or a member of the [IBT], of [his] choosing, at said examination," and that the examination would take place on November 19, 1996, at 2:00 p.m. Id. At the hearing, the Investigations Officer intended to question Hickey concerning: (1) his background and membership in the IBT and Local 813; (2) the operations of the carting business; (3) whether Hickey, as a union member, participated in a fraud with Local 813's funds; (4) whether Hickey associated with members of organized crime; and (5) "other matters the allegations in the indictment brought to light." (Carberry Letter at 2); see (Schwartz Letter at 1.)

 On November 18, 1996, this Court received correspondence from Schwartz seeking to ascertain the proper procedure for "submitting a formal application by motion for the relief requested. . . ." Id. at 2. That same day, this Court contacted both Schwartz and the IRB and ordered each to submit to this Court formal papers regarding the issue of Hickey's request to stay his sworn examination before the IRB. This Court received both Hickey's and the IRB's submission on November 21, 1996. (Letter from Deborah A. Schwartz, Esq., to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York ("Schwartz Application") (Nov. 20, 1996)); (Carberry Letter.)

 In support of her request that this Court stay Hickey's sworn examination before the IRB, Schwartz proffers two arguments. First, she asserts that "since Mr. Hickey is only a member of the IBT, and not an officer, we see no prejudice to the IBT if he is permitted to remain as a member while his indictment is pending since, of course, he continues to have the presumption of innocence in his favor despite the return of the indictment." (Schwartz Application at 2.) She further claims that Hickey, "as a member, does not participate in policy making or in decision making for the IBT, nor does he have any control of trust funds belonging to union members." Id. Schwartz also states that if Hickey is denied the stay, he will "lose the ability to maintain the IBT medical and pension benefits for the future." Id.

 Second Schwartz argues that Hickey "should be accorded a temporary stay of the Sworn Examination in light of the fact that the IRB intends to inquire about matters relating to his pending indictment." Id. Schwartz asserts that Federal Rule of Civil Procedure 26(c) ("Rule 26(c)") authorizes a court to grant a stay of a civil case or of discovery in a civil case in light of the existence of pending criminal proceedings relating to the same matter. Id. at 2.

 In response, the IRB contends that Hickey is not legally entitled to a stay of the sworn examination scheduled for him in front of the Investigations Officer. According to the IRB, "it is settled law in this context that the Fifth Amendment is inapplicable to the sworn examination sought and Hickey must appear and answer questions put to him or face the consequences of his refusal to do so." Id. The IRB explains that under Second Circuit case law, the IRB is not a state actor, and therefore, the Fifth Amendment protection against compulsory self-incrimination does not apply in the context of internal IBT disciplinary proceedings conducted by the IRB. Id. Thus, although an IBT member may invoke his Fifth Amendment privilege in response to questioning by the IRB, that invocation may both support a finding that the member brought reproach upon the IBT by obstructing the IRB's investigation, and adversely affect the individual's tenure as a union member. Id. at 3-4 & n.5.

 DISCUSSION

 The sole issue pending before this Court is whether the Fifth Amendment entitles a union member called to appear for sworn examination in conjunction with an internal union disciplinary proceeding to stay that examination pending resolution of a criminal indictment based on the same allegations as those underlying the ...


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