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United States District Court, Southern District of New York

March 31, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


Defendant Peter Vario ("Vario") pled guilty on May 17, 2002, to obtaining employment from General Concrete Construction, which is affiliated with a union of the Mason Tenders District Council, in violation of an order issued by this Court on September 23, 1996. This order expelled Vario from the Mason Tenders District Council and its constituent unions and permanently barred his membership in, association with, and/or employment by the Mason Tenders and its affiliated trust funds.

For the reasons set forth below, Vario will be sentenced to 6 months' imprisonment, to be followed by 3 years' supervised release. Pursuant to 18 U.S.C. § 3013, a special assessment fee of $100 is mandatory.

The Defendant

Vario was born Pietro Vario on March 22, 1944, in Brooklyn, New York to the union of Catherine and Salvatore Vario. Vario's mother, now 80 years old, resides in Boyton Beach, Florida. His father died in 1976, at the age of 57, from a heart attack. Vario has six siblings.

Vario's parents divorced when he was four years old. In his childhood, he did not have a good relationship with his father, but this relationship improved when Vario was about 12 years old and went to work in his father's florist shop. Vario enjoys a good relationship with his mother and reports being close to his siblings.

On November 7, 1965, Vario married Elaine Lebitz in Brooklyn, New York. They had one daughter, who was killed in 1989, in a car accident at the age of 19. Vario and Elaine divorced on December 6, 1993.

On April 6, 1996, Vario married Janet Mulhall, now 41, in Smithtown, New York. They have two children, Daniel, 4 and Jill Anna, about 14 months. Janet is a massage therapist and has her own business, located on Long Island. Vario lives with his wife and two children in Miller Place, New York. Mrs. Vario purchased this residence in 1994 or 1995 for $320,000. The mortgage balance on the home is about $220,000, and the monthly payment is $2800.

Vario attended New York City public schools. He left East New York Vocational High School, located in Brooklyn, New York, after completing the eleventh grade, at the age of 16. He received a High School Equivalency Diploma from the University of the State of New York Education Department in 1973. Vario attended Suffolk County Community College, located in Sheldon, New York, in September 1973, but his scholastic standing and attendance were poor.

Between 1975 and 1993, Vario was employed first as a laborer, then a union field representative, and for the last five years of his employment, as an administrator of the Local 66 Trust Funds for General Building Laborers Local 66. As a result of his previous criminal conviction related to this employer, Vario left at the directive of Judge Mischler of the Eastern District of New York. Between February and May 1999, Vario worked as a laborer at General Concrete located in Farmingdale, New York. General Building Laborers, located in Melville, New York, reported that Vario worked as an administrator for the "fringe benefits" section of the General Building Laborers Local 66 Trust Funds. Aside from his employment in 1999, Vario stated that he has not been employed since 1995. He assists his wife at her office, but he is not on her business's payroll.

According to the business manager of Local 66, Vario has received a monthly pension income of $205.03 since June 1999. Vario advised that he would liquidate funds from an Amerifund account of $200,000 to satisfy any monetary criminal penalties.

The Offense

On June 26, 1990, Vario was sentenced in the U.S. District Court for the Eastern District of New York on four counts of Labor Bribery and one count of Racketeering Conspiracy, to 46 months' imprisonment, 3 years' supervised release, forfeiture of $88,000, a fine of $50,000, $55,660 in costs of imprisonment, and a $700 assessment. Vario was later found to be unlawfully benefitting from the union's award system. On September 23, 1996, this Court issued a civil order expelling Vario from the MTDC and its constituent locals and imposing a ban on Vario to prohibit his employment in any union within the labor movement. Vario was also ordered to repay $35,769.50 to the union.

Between February and May 1999, Vario subsequently obtained employment, in defiance of this Court's order, in an attempt to enrich himself through significantly enhanced pension benefits. Through this crime, Vario attempted to embezzle between $40,00 and $70,000 in future union pension benefit pay-outs.

Furthermore, Vario has not paid the previously-imposed civil fine of $35,769.50 and has not satisfied his previously-imposed criminal penalties. He has paid a total of $68,450 toward all monetary penalties and thus still owes $125,910 from his June 26, 1990 sentencing.

The Guidelines

The 1999 edition of the Guidelines Manual is used in this case, pursuant to Vario's plea agreement. Vario pleaded guilty to Count 1, a violation of 18 U.S.C. § 401 (3), which charges criminal contempt for disobeying an order issued by a United States District Court. Pursuant to § 2J1.1, the most analogous offense guideline shall apply for a violation of 18 U.S.C. § 401. Since Vario attempted to embezzle funds from a pension fund, the most analogous offense guideline is § 2B1.1, which provides a base offense level of 4.

Since the attempted loss is more than $40,00 but less than $70,000, a seven-level increase is applicable, pursuant to § 2B1.1 (b)(1)(H). Based on acceptance of responsibility, the offense is reduced two levels, pursuant to § 3E1.1(a). The resulting offense level is 9.

Vario has the total of three criminal history points. According to the sentencing table at Chapter 5, Part A, this establishes a Criminal History Category of II.

Based on a total offense level of 9 and a Criminal History Category of II, the guideline range for imprisonment is 6 to 12 months. The Court may further impose a term of supervised release of not more than five years, pursuant to 18 U.S.C. § 3583 (b)(1).

The Sentence

Vario will be sentenced to 6 months of imprisonment, followed by a three-year-term of supervised release. In addition, the Court imposes a special condition, requiring Vario to satisfy the prior Court orders which involve monetary penalties. To facilitate monitoring of Vario's compliance, he shall provide the probation officer with access to any requested financial information. Furthermore, Vario shall not incur new credit charges or open additional lines of credit without the approval of the probation officer, unless he is in compliance with the installment payment schedule.

Within 72 hours of his release from custody, Vario is to report to the nearest Probation Office, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Vario shall (1) abide by the standard terms of supervised release (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive devise. Vario shall further refrain from any unlawful use of a controlled substance and shall submit to one drug testing within fifteen days of placement on probation or supervised release and at least two unscheduled drug tests thereafter, as directed by the probation officer.

In addition, Vario shall comply with the conditions of home confinement for a period of three months. During this time, Vario will remain at his place of residence, except for employment or other activities approved by the probation officer. Vario will maintain a telephone at his place of residence without call forwarding, a modem, caller ID, call waiting, or portable cordless telephones for the above period. At the direction of the probation officer, Vario shall wear an electronic monitoring device and follow the electronic monitoring procedures specified by the probation officer. Home confinement shall commence on a date to be determined by the probation officer. Vario shall pay the costs of home confinement on a self payment or co-payment basis, as directed by the probation officer.

A special assessment fee of $100 is mandatory and is due immediately.

This sentence is subject to. modification at the sentencing hearing now set for April 1, 2003.

It is so ordered.


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