United States v. Clemente

640 F.2d 1069, 106 L.R.R.M. (BNA) 2673, 1981 U.S. App. LEXIS 19807
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 26, 1981
DocketNos. 549 to 553, Dockets 80-1261, 80-1263, 80-1271, 80-1273 and 80-1275
StatusPublished
Cited by68 cases

This text of 640 F.2d 1069 (United States v. Clemente) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clemente, 640 F.2d 1069, 106 L.R.R.M. (BNA) 2673, 1981 U.S. App. LEXIS 19807 (2d Cir. 1981).

Opinion

MESKILL, Circuit Judge:

This case concerns racketeering activity that has plagued waterfront businesses in New York and New Jersey. Judgments of conviction were entered in the United States District Court for the Southern District of New York after a twelve-week jury trial before Judge Sand. The indictment contained 213 counts, charging the defendants with engaging in extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1976); receiving bribes in violation of the TaftHartley Act, 29 U.S.C. § 186(b) (1976); conducting and conspiring to conduct an enterprise’s affairs through a pattern of racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(c) and (d) (1976); evading taxes and filing false tax returns in violation of 26 U.S.C. §§ 7201 and 7206(1) (1976); and making false declarations before a grand jury in violation of 18 U.S.C. § 1623 (1976). A schedule listing the defendants’ various convictions and the sentences imposed appears in the appendix.

BACKGROUND

The evidence offered by the government at trial depicted Michael Clemente as the ringleader of a highly organized enterprise that had infiltrated all aspects of waterfront business, including labor, shipping, and ship-servicing. Clemente’s specific area of control was identified as the New York waterfront. The evidence described the other defendants as follows: Fiumara acted as the New Jersey waterfront “boss” but was subordinate to Clemente; Copolla was a personal assistant to Fiumara; Gardner and Colucci were presidents of two New Jersey International Longshoremen’s Association (ILA) locals and answered directly to Fiumara in connection with their illicit [1072]*1072activities; Buzzanca was president of two New York ILA locals and conducted his activities under the supervision of Fiumara; and Swanton, a vice-president of a shipping company in New York, worked closely with Clemente.

The linchpin of the enterprise was its control of the ILA in New York and New Jersey; with this power it was able to extort monies from shipping companies and influence their decisions regarding the allocation of ship-servicing contracts. The latter influence empowered the enterprise to extort monies from the companies that provided services such as the lashing and carpentry work required in connection with loading and unloading cargo. Only those shipping companies and ship-servicing companies that paid the amounts demanded by the enterprise, or “did the right thing” in the argot of the waterfront, had their ships’ cargo loaded and unloaded without interruption or obtained and retained contracts to provide their services. The evidence adduced at trial largely concerned dealings between each of the defendants and the government’s principal witness, William Montella, who was employed by several ship-servicing companies during the indictment years.

The Court-Authorized Surveillance

Between August 1977 and March 1978 the government monitored oral conversations through listening devices installed in Montella’s offices, which had been authorized by court order pursuant to 18 U.S.C. §§ 2510-2520 (1976).1 The intercepted conversations combined with physical surveillance of Montella provided the government with substantial proof of Montella’s pattern of monthly deliveries of cash to the defendants Clemente and Buzzanca.2 Montella was approached by the government in May 1978 and agreed to cooperate in June of that year.3 From June through December 1978 Montella met with several of the defendants and successfully recorded sixteen of their meetings.4

Additionally, several consensual recordings made in the course of an independent New Jersey state investigation were admitted into evidence. In one conversation Fiumara promised a New Jersey undercover officer certain waterfront business and, in another, Copolla described Fiumara’s waterfront control and Copolla’s own role as Fiumara’s assistant.

The Netumar Account

From 1970 to 1972 New Jersey Export Co. (N. J. Export) served as the carpentry contractor for Netumar Steamship Line (Netumar), which operated from Pier 36 in Manhattan. At that time, Montella was the general foreman for N. J. Export. Montella testified that beginning in 1970 or 1971 defendant Swanton, then a vice-president of Netumar, threatened that unless Montella agreed to “do the right thing” Swanton would “throw them out” and find another company that would make the payoffs demanded. Swanton informed Montella that he was associated with Clemente, who was the behind-the-scenes boss who ran the East River Piers in Manhattan, and that some of the kickback money would be given to Clemente. When Montella asked Swanton how he was expected to raise the cash to make the payoffs, Swanton instructed him to inflate his materials bills. Montella agreed to make the payoffs and admitted that he later kept some of the money generated in this manner for himself.

[1073]*1073When Montella left N. J. Export to join a Brooklyn-based company, C.C. Lumber Co., he asked Swanton whether his new employer could obtain the Netumar account. Swanton denied the request, asserting as his reason Clemente’s dislike for Anthony Scotto, the Brooklyn ILA local president.

In June 1973 Montella left C.C. Lumber and joined Quin Lumber, another Brooklyn-based carpentry and lashing company. Quin Lumber’s employees, like those of C.C. Lumber Co., belonged to the ILA Brooklyn local run by Anthony Scotto. In early 1974 Swanton called Montella and advised him that Clemente had resolved his differences with Scotto and that, therefore, Montella’s Brooklyn employer could now obtain the Netumar account. Thereafter, they arranged a meeting where Swanton told him: “Listen ... go to the Shelton Health Club. Ask for Mike C. Give him 500. Give him 500 a month.... Give him 500 and make him happy.” Montella testified that shortly thereafter he met Clemente at the Shelton Health Club, where the following exchange took place:

MONTELLA: Mike, I’m Sonny [Montella]. Gerry [Swanton] told me to come down. I’m with Quin Lumber and I’m going to be doing the carpentry work down there.
CLEMENTE: I hope you do the right thing. I hope you are not cheap.
MONTELLA: I’m going to give you 500 a month.
CLEMENTE: Okay. If you have any problems down there ... let me know. Go out and make money.

Montella testified that some time in April or May 1974 he returned to the Shelton Health Club and handed Clemente $500 in cash in a white envelope. Thereafter, Montella delivered $500 in the same manner once a month through December 1976.

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Bluebook (online)
640 F.2d 1069, 106 L.R.R.M. (BNA) 2673, 1981 U.S. App. LEXIS 19807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clemente-ca2-1981.