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United States v. Tomero

February 14, 2007

UNITED STATES OF AMERICA,
v.
JOHN TOMERO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

MEMORANDUM OPINION

Louis Moscatiello is one of fifteen defendants charged in the sixteenth superceding indictment in this case, which alleges various crimes in connection with the Genovese organized crime family. Moscatiello, allegedly a soldier and Acting Capo of the family, is charged with conspiracy to commit extortion and attempted extortion. He moves to dismiss the indictment on double jeopardy grounds.

Background

I. The Previous Indictments

The indictment stems from a three-year investigation of the Genovese family that began in January 2003 and focused initially on the crew of the late John Ardito, a high ranking member.*fn1 While the government conducted this investigation, however, it concluded other fruitful investigations into the Genovese family. Grand juries in the Southern District of New York returned two indictments against Moscatiello and other alleged Genovese associates.

A. The Local 14/15 Indictment

The first was returned in February 2003 in United States v. Muscarella*fn2 (the "Local 14/15 Indictment"). Its thrust was that Moscatiello and others, from 1997 through February 2003, exercised extortionate control over Locals 14 and 15 of the International Union of Operating Engineers and forced union officials to assign high-paying and no-show jobs to Genovese family associates. Based on this and related conduct, Moscatiello was charged with racketeering, racketeering conspiracy, several counts of extortion and extortion conspiracy under the Hobbs Act,*fn3 mail fraud, and unlawful receipt of payments by union representatives.*fn4

B. The Drywall Indictment

The second indictment was returned in April 2004 in United States v. Moscatiello*fn5 (the "Drywall Indictment"). The gist of that indictment was that Moscatiello and others, from 1978 though January 2004, exercised unlawful influence over construction unions in the drywall industry-the District Council and New York City Locals of the United Brotherhood of Carpenters and Joiners (the "UBCJ") and Local 530 of the Operative Plasterers and Cement Masons Union. Using this influence, they permitted drywall companies to violate terms of collective bargaining agreements in exchange for payment. Moscatiello was charged with racketeering, racketeering conspiracy, extortion and extortion conspiracy under the Hobbs Act, mail fraud, unlawful receipt of payments by union representatives, conspiracy to defraud a union and its benefit fund, employee benefit plan embezzlement, and making false statements in ERISA documents.*fn6

C. The Guilty Plea to the Previous Indictments

1. The Plea Agreement

On the eve of trial in the Muscarella case, Moscatiello entered into an agreement by which he agreed to plead guilty to (1) racketeering and racketeering conspiracy in violation of the Racketeering Influenced Corrupt Organizations Act ("RICO")*fn7 based on the predicate offenses of extortion and extortion conspiracy under the Hobbs Act, (2) extortion and extortion conspiracy in violation of the Hobbs Act, and (3) two counts of conspiracy to commit employee benefit plan embezzlement and mail fraud in violation of 18 U.S.C. § 371.

The agreement provided also that Moscatiello would admit the following conduct: From about 1997 to February 2003, he conspired to extort Locals 14 and 15 in order to ensure that Genovese associates would be assigned preferential and no-show union jobs and actually extorted Local 14 so that one of his co-defendants would be promoted at a certain construction site. From 1997 to January 2004, he conspired to allow contractors who had signed collective bargaining agreements with the UBCJ and Local 530 to violate the terms of those agreements by paying workers off-the-books, employing nonunion workers, not paying workers union-scale wages, and submitting false ERISA documents.

The government agreed to dismiss all open charges and not to prosecute Moscatiello further for the conduct described in the Local 14/15 Indictment, the Drywall ...


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