United States v. International Brotherhood of Teamsters

964 F.2d 1308
Court of Appeals for the Second Circuit·Decided May 27, 1992·No. No. 1094, Docket 91-6280·Published·Cited by 16 cases

Opinion

OAKES, Chief Judge:

In this appeal, we are asked to decide whether internal union disciplinary sanctions should be upheld against Joseph Cimino, Jr., former President and Business Agent of Local 107 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“IBT”), AFL-CIO, in Philadelphia. The sanctions were imposed for Cimino’s violation of the IBT Constitution through his knowing association with the Boss of the Philadelphia Family of La Cosa Nostra, Nicodemo Scarfo; the violation was proved essentially by three hearsay statements from former La Cosa Nostra members.

Cimino appeals from an order of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, upholding the sanctions imposed on him. 777 F.Supp. 1130. For the reasons set forth below, we affirm.

I. Background

On March 14, 1989, Judge Edelstein approved a Consent Decree that settled civil racketeering charges brought by the Government against the IBT and members of the IBT General Executive Board. We have previously discussed this litigation in detail, as well as the disciplinary provisions of the Consent Decree. See United States v. International Brotherhood of Teamsters (Yellow Freight Systems, Inc.), 948 F.2d 98, 100 (2d Cir.1991); United States v. International Brotherhood of Teamsters (Friedman & Hughes), 905 F.2d 610, 612-13 (2d Cir.1990).

On August 30, 1990, the Investigations Officer charged Joseph Cimino, Jr., then President and Business Agent of Local 107 in Philadelphia, with violating Article II, section 2(a) and Article XIX, section 6(b) of the IBT Constitution through his knowing association with Nicodemo Scarfo, the boss of the Philadelphia Family of La Cosa Nostra, during the time he was an officer of Local 107.1

The Independent Administrator held a hearing on the charge against Cimino on November 29, 1990. In support of the charges, the Investigations Officer relied primarily on the declaration of Special Agent James T. Maher of the Federal Bureau of Investigation, to which extensive evidence was appended as exhibits. In the declaration, Special Agent Maher summarizes Cimino’s association with the Philadelphia Family of La Cosa Nostra and particularly with Nicodemo Scarfo. Special Agent Maher’s declaration is based largely on three hearsay declarations from admitted former members of the Philadelphia Family of La Cosa Nostra — former underboss Philip Leonetti, former capo Lawrence Merlino, and former soldier Nicholas Caramandi. Each statement offers a disheartening glimpse into Cimino’s relationship with the Philadelphia Family in general and with Scarfo in particular.

For example, Leonetti characterizes Cimino as “the primary point of contact for the Philadelphia Family with the Teamsters Union in the vicinity of Philadelphia.” He goes on to describe various favors which Cimino performed for Scarfo, such as using his union position to arrange for employment of individuals referred to him by members and associates of La Cosa Nostra. In return, Cimino received the support of the Philadelphia Family in his union office. He also describes a meeting which he attended during which Scarfo told Cimino that he “should not be worried in light of the recent murder of John McCullough, a Roofers Union official, because Cimino was under the protection of the Philadelphia Family, and could rely on the family for whatever assistance he or his union might require.” The declarations of Merlino and [1311]*1311Caramandi provide similar examples of the association between Cimino and Scarfo, the former of which includes perhaps the most disturbing allegation — that Cimino nodded in agreement when Scarfo proclaimed to him at a meeting, “I’m the union; I run Local 107.”

The Investigations Officer also submitted two FBI surveillance reports, one of which states that a Special Agent and a student intern observed Cimino and a fellow union officer at a Philadelphia restaurant on October 19, 1982 with members of the Philadelphia Family. The agent reported that the groups conversed and that the La Cosa Nostra members bought drinks for Cimino and his colleague.

In his defense, Cimino offered his own testimony denying the allegations. He also introduced the testimony of six witnesses and submitted three affidavits. Most of the live witnesses offered only their opinions of Cimino’s character. Some of this testimony, however, disputed the characterizations of particular events in the three hearsay declarations.

On May 28, 1991, after reviewing the hearing evidence and post-hearing submissions, the Independent Administrator (“IA”) concluded in a written decision that the Investigations Officer satisfied his burden of proving that Cimino had associated knowingly with Scarfo. The IA found that “the evidence reveals a close relationship between Cimino and IBT Local 107 on the one hand, and Scarfo and the Philadelphia Family on the other.” In particular, he found that “Cimino met with members of La Cosa Nostra on numerous occasions, performed services for the Philadelphia Family in exchange for its support, and met with Scarfo or his underlings over a period of years in a variety of places to discuss union business.”

As a sanction, the IA banished Cimino permanently from the IBT, ordered Cimino to relinquish all of his IBT-affiliated union positions, and prohibited him from drawing any money from the IBT or any IBT-affiliated source. In addition, the IA ordered that no IBT or IBT-affiliated entity should make any further contributions on Cimino’s behalf to any employee health, pension, and welfare plans, and directed that neither Local 107 nor any other IBT-affiliated entity should make any contributions to Cimino’s legal expenses in connection with this matter.

On October 16, 1991, the district court affirmed the IA’s decision in all respects. Cimino now appeals from the district court’s order.

II. Discussion

The precise standard of appellate review under the consent decree is difficult to identify. The decree provides in Paragraph 16 that the district court, when reviewing the actions of the Independent Administrator, “shall apply the same standard of review applicable to review of final federal agency action under the Administrative Procedure Act.” Pursuant to this provision, the district court reviewed the IA’s decision here to determine if it was arbitrary or capricious. See 5 U.S.C. § 706 (1988) (scope of review under the Administrative Procedure Act (APA)). The consent decree offers no similar guidance on the standard of review for issues raised in this court. Previously, we have not found it necessary to recite an exact standard of appellate review, and we need not do so today. See Friedman & Hughes, 905 F.2d at 616-17 (district court’s order should be affirmed under “any reasonable standard of review”). Under even the supposedly more searching standard of review provided in the APA, which permits agency findings to be set aside only if they are “unsupported by substantial evidence”, the district court’s order must be sustained.2 “Substantial evidence is more than a mere scin

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United States v. International Brotherhood of Teamsters, 964 F.2d 1308 (2d Cir. 1992).

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