90-cv-05722 2010-10-19 Olivieri Trans Comp

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TRIAL
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2 UNITED STATES DISTRICT COURT TRIAL
SOUTHERN DISTRICT OF NEW YORK
3 ------------------------------x 2 in response to the Government's proposal, and I've reviewed
4 UNITED STATES OF AMERICA, New York, N.Y.
both proposals and have prepared a version of what I think
3 captures the essence of the Court's ruling, and I will ask the
5 v. 08 Cr. 0828 (VM)
Clerk to distribute to both sides the Court's proposal, and you
6 JOSEPH OLIVIERI,
4 can discuss that for a moment.
7 Defendant. (Pause)
8 ------------------------------x 5 THE COURT: All right, let me give you the rationale
9
6 for the proposal the Court has distributed.
October 19, 2010 7 In referring to Judge Haight's memorandum opinion and
10 9:15 a.m.
8 order, which he authorized Mr. Olivieri's deposition, the
11
Before:
9 government proposes redacting, commencing on page nine, all of
12 10 the language continuing to the top of page 12. Now, in that
HON. VICTOR MARRERO,
13 11 discussion, at least on page nine -- pages nine and ten and the
District Judge 12 first two-thirds of page 11, Judge Haight summarizes some of
14
13 the evidence that the government had proposed as the basis for
15 APPEARANCES
14 its request. And, essentially, Judge Haight ruled that most of
16 PREET BHARARA 15 that evidence did not support the Government's request and,
United States Attorney for the
17 Southern District of New York 16 therefore, he ruled that that material should not be the basis
BY: LISA R. ZORNBERG
18 MARK D. LANPHER 17 for the Court's, for Judge Haight's order and granting the
Assistant United States Attorneys 18 Government's request.
19
SULLIVAN GARDNER, P.C. 19 Instead, Judge Haight, on page 11, indicated that
20 Attorneys for Defendant
BY: BRIAN L. GARDNER 20 there was one aspect of what the government submitted that did
21 CHRISTOPHER TUMULTY 21 bear upon the Government's request, and that pertained to count
- also present -
22 SA Roy Pollitt, FBI Case Agent 22 two of the information that was there at issue to which Mr.
SA Ryan Gibbs, U.S. Department of Labor
23 Colleen Geier, Government Paralegal 23 Moscatiello had pled guilty. And on the bottom of page 11 and
24 SOUTHERN DISTRICT REPORTERS, P.C.
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2 THE DEPUTY CLERK: All rise. 2 the top of page 12, Judge Haight then outlines the information
THE COURT: Good morning. Please be seated. that he believed did support the Government's request and
3 This is a proceeding in the matter of United States 3 formed the basis for what Judge Haight authorized to be the
versus Olivieri, it's docket number 08 CR 0828. Counsel, scope of a Government's deposition of Mr. Olivieri.
4 please enter your appearances for the record. 4 Consequently, I find that, to the extent that the
MS. ZORNBERG: Good morning, your Honor, Lisa Zornberg redaction is to be summarized for this jury, the only portions
5 and Mark Lanpher for the government. And at counsel table are 5 that are really relevant are those portions that begin on the
6 the case agents from the Department of Labor and the FBI and 6 bottom of page 11 with the paragraph that says "But that cannot
7 our paralegal from the U.S. Attorney's Office. 7 be said of count two of the superseding information," and that
8 THE COURT: Good morning. 8 continues and concludes on the top of page 12 with the sentence
9 MR. GARDNER: Good morning, your Honor, Brian Gardner 9 that begins thus. "Thus, Mr. Moscatiello pleaded guilty to
10 for Mr. Olivieri, and with me today is Chris Tumulty of my 10 precisely the sort of job corruption," et cetera.
11 office. 11 So in the proposal proposed summary that I had
12 THE COURT: Good morning. 12 distributed, I have limited the content to what is found in
13 We scheduled a commencement of a trial on this matter 13 that portion of Judge Haight's order. And as I read that
14 for today, and the jury pool is waiting for our call to send up 14 portion of the order, basically Judge Haight notes what the
15 a number of jurors. 15 government submitted in support of its application to depose
16 There is one matter that we left open from yesterday, 16 Mr. Olivieri about his alleged relationship with Mr.
17 and it concerns the redactions that the Court directed be made 17 Moscatiello, and the information that the government argued
18 in Judge Haight's order authorizing a deposition of 18 supported its application, and that information that the
19 Mr. Olivieri. 19 government argued supported its request contained the three
20 The government had submitted a proposed summary of the 20 points summarized in my proposal here; 1, that Mr. Moscatiello
21 redactions that the government suggested to comply with the 21 was a member of the Genovese organized crime family, that's
22 Court's order. 22 found on page 11 in the quotation from the plea agreement that
23 I have also received Mr. Gardner's proposed redactions 23 Judge Haight sets forth; 2, that Mr. Olivieri knew of Mr.
24 SOUTHERN DISTRICT REPORTERS, P.C. 24 SOUTHERN DISTRICT REPORTERS, P.C.
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October 19 Transcript Pages 1 - 4

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2 Moscatiello's organized crime position, and acting on that 2 of what I've indicated, I think it does not go far enough in
pressured a union representative to meet with Mr. Moscatiello. faithfully summarizing the portion that is redacted. Mr.
3 That's found on the top of page 12 where Judge Haight makes 3 Gardner's redactions go further in proposing to delete some
reference to testimony of a witness in the Amicucci trial, that portions, some further portion of page 12 and the first three
4 Mr. Olivieri, knowing of Mosciatello's organized crime 4 lines of page nine. And on those redactions, I feel that the
position, pressured a representative of a union to meet with three, first three lines on page nine essentially sets forth
5 Mosciatello. That, essentially, makes the tie between 5 the background for what follows in the redactions. And to that
6 Mr. Olivieri knowing of Mr. Moscatiello -- of Mr. Moscatiello's 6 extent, it provides in some important transition for anyone
7 alleged organized crime connection and his association, 7 trying to read it, the document and seeing the redactions in
8 whatever ties the government alleges Mr. Olivieri may have had 8 context.
9 with Mr. Moscatiello pertinent to the reason for the 9 On page 12, Mr. Gardner would delete first three lines
10 deposition. And, third, that Mosciatello had participated in 10 of that second paragraph. I do not believe that there's
11 fraud against the Council Benefit Funds in specific means. 11 anything in those three lines that are crucial and, to that
12 And my view is that it was not necessary to set forth 12 extent, I would agree that that portion could be redacted.
13 all of the details in Judge Haight's order. Just, it suffices 13 Mr. Gardner finally proposes redaction of the third
14 to say that Judge Haight found that those means constituted the 14 paragraph and the footnote on page 12. It is my view that the
15 sort of corruption in the District Council that served as the 15 first sentence is important to bring Judge Haight's order into
16 Government's focus of an investigation. So that, again, 16 full context and why he approved portions of the Government's
17 outlines the reasons for my summary. 17 submission, but not others, or granted the application in part
18 The government had submitted it's own version of that 18 and denied it in part. And I do not have a problem with the
19 of its summary. I found that the Government's version 19 deleting the last sentence of that paragraph of page 12 and the
20 contained some language that I believe was not -- did not flow 20 footnote that accompanies it on page 12.
21 from Judge Haight's order, and contained other information that 21 So that summarizes my view on this matter and I invite
22 I found unnecessary. For example, the government submission 22 any comments that the parties may have on the Court's ruling.
23 states that in this portion of the order, Judge Haight noted 23 Ms. Zornberg.
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2 that in applying for permission to depose Mr. Olivieri, the 2 MS. ZORNBERG: The government is totally fine with the
government cited to its good faith belief. In fact, there's Court's proposal.
3 nothing in Judge Haight's order that makes any reference to the 3 THE COURT: Mr. Gardner?
Government's good faith belief. So to that extent, I know that MR. GARDNER: Your Honor, we do have our objection by
4 the Government is seeking to characterize the reason for its 4 way of our application to the Court of last night. So I do
seeking permission to for the deposition, but, nonetheless, to object to any alteration, obviously, to my submission.
5 the extent that there's nothing in Judge Haight's order that 5 But particularly with regard to item two of your
6 makes reference to the Government's good faith belief, I feel 6 proposed insertion, your Honor, that Olivieri knew of
7 that it is more appropriate to remain within the text of Judge 7 Mosciatello's organized crime position and pressured a union
8 Haight's order more faithfully. 8 representative to meet with Moscatiello. As the Court notes,
9 Similarly, the Government's proposal point two says 9 much of this is from either a plea agreement or plea allocution
10 that Olivieri had associated with Moscatiello. Again, close 10 or trial testimony of others, and I think we delve into a
11 reading of Judge Haight's order makes no specific reference to 11 dangerous area, as the Court noted in its opinion previously,
12 Mr. Olivieri's association with Mr. Moscatiello. At most, that 12 when we start putting in verbiage from either a plea allocution
13 portion that Judge Haight's order makes reference to 13 or prior testimony.
14 Mr. Olivieri's knowledge of Mr. Moscatiello's alleged organized 14 So I do see Judge Haight's reference to it, and I
15 crime connections and indicates that because of his knowledge, 15 can't obviously dispute that in the Court's thinking. But
16 of Mosciatello's connections, he, Mr. Olivieri, pressured a 16 Judge Haight, in doing that, is referring to a plea and then a
17 union representative to meet with Moscatiello. And that is the 17 trial testimony. And then to put it into an order is putting
18 extent of the connection or association between the two 18 before the jury as if it's evidence things from a prior
19 individuals that flows out of that portion of Judge Haight's 19 testimony or plea, and I would ask that --
20 order. 20 THE COURT: Mr. Gardner, I'm aware of that concern,
21 Now, I also received the proposal from Mr. Gardner 21 and that is precisely the reason why in the text that I put
22 setting forth his summary and I've reviewed it, and I find that 22 before you I qualify what is contained there by saying that
23 although it captures some of, and it's a more condensed version 23 this is information that the government argued demonstrated the
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2 Government's argument. It is not Judge Haight's finding. 2 THE COURT: All right. Is there anything else before
MR. GARDNER: Right, I appreciate and I did note that we call in the jury panel?
3 and I appreciate that. Perhaps is there a way to emphasize 3 MS. ZORNBERG: Not from the government.
that at the end in an instruction or some sort that there was THE COURT: Mr. Gardner?
4 an order placed before you; that order references statements by 4 MR. GARDNER: Just one issue, your Honor. The
the government as to their proposal of issues that was not a government was good enough, they did a revised voir dire of the
5 finding of those statements are not a finding by Judge Haight? 5 jury, taking out the other three charges, and they did take the
6 Again, my fear is this is in an order and it carries some 6 job of doing that so I appreciate that. But there was one
7 weight, I would think. 7 disputed question in there and it's usually --
8 THE COURT: All right. What I could do, Mr. Gardner, 8 THE COURT: Paragraph 31 and 32?
9 is when this issue comes up, I could give a limiting 9 MR. GARDNER: Mine aren't numbered, I apologize, but
10 instruction to the jury indicating that this language refers to 10 it is the subject of question as to organized crime and would
11 what the government argued it felt was sufficient information 11 that -- can you still be fair, would that prevent you from
12 to warrant granting of a deposition. It does not necessarily 12 being a fair and impartial --
13 constitute Judge Haight's findings. 13 THE COURT: Yes.
14 MR. GARDNER: Thank you, Judge. 14 MR. GARDNER: -- juror.
15 THE COURT: Now, Mr. Gardner, let me call to your 15 THE COURT: I remember that language and I am aware of
16 attention that on page 12, one of the sentences that you 16 that there was some dispute about that.
17 proposed deleting says exactly that. Judge Haight is saying 17 MR. GARDNER: Yes, your Honor. It's defendant's
18 exactly that when he says, it must be clearly understood in 18 position that that language, although seemingly a defense
19 this opinion that the Court is not saying that the cited 19 request or something that a defendant might ask for, in this
20 testimony connect Joseph Olivieri to organized crime is 20 trial we're not asking for it. Just the opposite, we're asking
21 credible. 21 it be taken out.
22 MR. GARDNER: Is that -- oh, the first sentence, your 22 THE COURT: All right. That's contained in page 12,
23 Honor? 23 paragraph 31 and 32.
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2 THE COURT: Yes. He's conceding that this is only the 2 Government have any views on that issue?
Government's arguments and information provided by the MS. ZORNBERG: Yes. The Government's view is that in
3 government. He's not giving it any weight, but -- 3 a trial where a good portion of the witnesses will be
MR. GARDNER: I appreciate your Honor pointing that testifying about organized crime matters and Mr. Olivieri's,
4 out, and I would ask that not be redacted. I think, I think 4 specifically Mr. Olivieri's relationship with a mobster in the
the Court's correct, that sentence leading into what he is Genovese organized crime family, it's appropriate and fair not
5 ordering should be left in there. I apologize if that was 5 only for the defendant, but for the government in a case of
6 proposed as a redaction. 6 this nature, for the government to have some notice and
7 THE COURT: Government? 7 opportunity to understand whether any of the jurors have, you
8 MS. ZORNBERG: We have no objection. 8 know, will be unable to serve in an impartial manner based upon
9 THE COURT: All right. So I think that leaving that 9 that nature of the evidence.
10 sentence in, Mr. Gardner, sufficiently addresses your concern 10 THE COURT: All right. Thank you.
11 that this is not a finding by Judge Haight and it is only a 11 Mr. Gardner, I think that the government is entitled
12 summary of the information the government provided to him. 12 to have voir dire on that issue. I will look at the language
13 MR. GARDNER: I would still reserve the right to ask 13 more closely and see to what extent it may be slightly modified
14 the Court at the time, if I feel it appropriate, for a limiting 14 to take some of the edges out. For example, on paragraph 31
15 instruction. 15 the second sentence says, will the simple fact that. Words to
16 THE COURT: You may. You may do that. 16 that effect, we may be able to tinker with the language that
17 MR. GARDNER: Thank you. 17 way that will address some of your concerns.
18 THE COURT: All right. Now, in order to effectuate 18 MR. GARDNER: Thank you Judge.
19 the ruling, would the government then prepare a new revised 19 THE COURT: Anything else?
20 version of the order with redactions approved? 20 MS. ZORNBERG: No, your Honor.
21 MS. ZORNBERG: Of course, your Honor. We'll do that 21 THE COURT: All right, so --
22 over the lunch hour and distribute copies to the Court and to 22 MR. GARDNER: No, your Honor.
23 Mr. Gardner. 23 THE COURT: -- we will call the panel in and I think
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2 they'll probably be here about ten minutes or so at most. 2 for deliberations or for last minute portions of the trial that
So we'll recess until ten minutes. we have gotten to, we will spill over to the following week of
3 (Recess) 3 November 1st.
(Continued on next page) We will begin every day at 9:00 a.m. It's important,
4 4 given the tightness of the time that we have available, to
commence early in the morning and commence sharply at the times
5 5 indicated, except tomorrow morning, Wednesday, we will begin at
6 6 10:30 because we have another matter that I need to attend to,
7 7 so we will start tomorrow at 10:30, and thereafter every day
8 8 we'll commence at 9:00 a.m. We will continue until
9 9 approximately 5:00 o'clock or little after, depending upon how
10 10 we're doing on time. It is extremely important that you allow
11 11 sufficient time in the morning to ensure that you can arrive
12 12 here by 9:00 a.m. because this trial cannot start unless all of
13 13 you are present. And delays in the jury not being here can
14 14 lead to having to either extend the time of the trial or
15 15 compress the breaks and lunch hours in order to make sure that
16 16 we can finish on time within the limit that I've indicated.
17 17 We will take lunch break at approximately 1:00 p.m.
18 18 every day for about an hour or so, and take two 10 minute
19 19 breaks during the day, one in the morning and one in the
20 20 afternoon, at about 11:00 and 3:00. If at any time any of you
21 21 wants the Court to declare a brief recess for any reason, just
22 22 raise your hand and let me know and we will take a five minute
23 23 recess without any questions asked.
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2 (A jury of 12 and 2 alternates was impanelled and 2 Now, the purpose of jurors is to find and determine
sworn) the facts. The jury is the sole judge of the facts in the
3 THE COURT: All right, I will now give you some 3 case. Your task is to decide the factual issues in the case
preliminary instructions, and after that, I will open the case based on the evidence presented, and then to apply the facts as
4 for the parties to present opening statements. Government will 4 you find them to the law as contained in my instructions to you
make an opening statement, and the defendant, if he wishes and at the conclusion of the trial.
5 elects to do so, can make an opening statement, and after that 5 As I mentioned during the jury selection, the question
6 we will adjourn for the day. 6 of punishment is for the Court alone to determine and must not
7 Now, these remarks are intended to serve as your 7 enter into your deliberation on the guilt or innocence of the
8 introduction to the trial. These comments are not a substitute 8 defendant. You may not speculate as to the potential
9 for the detailed instructions on the law and the evidence that 9 punishment for sentence that the defendant may face if you find
10 I will give you at the conclusion of the case before you retire 10 the defendant guilty of the charge brought by the government
11 for your deliberations. Rather, these remarks are a simple 11 and beyond a reasonable doubt, nor may you consider the
12 explanation of your duties and responsibilities and the basic 12 question of punishment when you apply the facts to the law
13 principles of law that are likely to be involved in a case. 13 during your deliberations.
14 As a preliminary matter, I would like, once again, to 14 While you're the sole judge of the facts, the Court is
15 review the schedule with you. As indicated earlier, the case 15 the sole judge of the law; in other words, it is my role to
16 is estimated to last approximately two weeks under the 16 preside at the trial, to rule upon various legal issues that
17 circumstances that I indicated this morning, two weeks for the 17 may come up during the trial, and to instruct you on the legal
18 presentation of the evidence and the arguments and the Court's 18 principles that you are to apply to the facts as you find them.
19 instructions. How much time you may take thereafter for 19 The law as given by the Court constitutes the only law
20 deliberations is entirely up to you. Those two weeks will not 20 for your guidance, and it is your duty to follow the law as I
21 include this coming Friday, and it is likely that it will 21 give it to you.
22 include Friday the following week, but only in the morning, 22 You're to determine the facts in this case solely from
23 Friday the 29th. If we need to extend beyond the 29th, even 23 the evidence which consist of, one, the sworn testimony of
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2 witnesses regardless of which body may have called them; two, 2 purpose, you may consider it only for that limited purpose and
any video recordings or recordings, documents, physical things for no other purpose.
3 that have been received in evidence regardless of who may have 3 Some of you may have heard the terms direct evidence
produced them; three, all facts which may be traditionally and circumstantial evidence. Direct evidence is simply
4 noticed, if any; and, four, all facts to which the parties have 4 evidence like the testimony of an eye witness which, if you
stipulated and which I instruct you to take as true for the believe it, directly proves a fact. If a witness testified
5 purposes of this case. 5 that he or she saw it raining outside and you believe that
6 Evidence is a very specific and limited concept. Not 6 witness, that would be direct evidence that it was raining.
7 everything that you see or hear in this courtroom is evidence. 7 Circumstantial evidence is simply a chain of
8 For instance, what I say, now or later, is not evidence. What 8 circumstances that indirectly proves a fact. If someone walked
9 the lawyers say in their opening statements and their closing 9 into the courtroom wearing a rain coat covered with drops of
10 arguments is not evidence. To put it affirmatively, evidence 10 water and carrying a wet umbrella, that would be circumstantial
11 consists of the answers given by witnesses from the witness 11 evidence from which you could conclude that it was raining
12 stand under oath. It is the answer that is the evidence and 12 outside. It is your job to decide how much weight to give the
13 not the question or how the question is asked. Obviously, to 13 direct evidence and the circumstantial evidence.
14 evaluate the answers you have to consider the question to which 14 The law makes no distinction between the weight that
15 it is a response. 15 you should give to either, and does not say that one is any
16 As I mentioned, statements and arguments of counsel 16 other better than the other. You should consider all of the
17 are not in evidence, unless made as an admission or 17 evidence, both direct and circumstantial, and give the evidence
18 stipulation, which means that the attorneys agreed to a certain 18 whatever weight you believe it deserves.
19 fact. When the attorneys on both sides stipulate or agree to 19 Part of your job as jurors while determining the facts
20 the existence of a fact, I will so instruct you and you must 20 is to decide how credible believable each witness is. This is
21 accept the stipulation as evidence and regard the fact as 21 your job, not mine. It is up to you to decide if witness
22 proved. 22 witness' testimony is believable and how much weight you think
23 On occasion I may tell you that I am taking judicial 23 it deserves. You're free to believe everything that a witness
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2 notice of certain facts or events. If I do, you may, but 2 says or part of it or none of it at all. But if you should
you're not required to accept as conclusive any fact judicially choose -- but you should act reasonably and carefully in making
3 noticed. You're to consider only the evidence of the case. 3 your decisions.
But in your consideration of the evidence, you're not limited Let me suggest some things for you to consider in
4 only to statements of the witnesses. In other words, you're 4 evaluating the testimony of each witness. Ask yourself if the
not limited solely to what you see and hear as the witnesses witness is able to hear or see the events in a clear manner.
5 testify. You are permitted to draw from the facts which you 5 Sometimes even an honest witness may not have been able to see
6 find to have been proved, such reasonable inferences as you 6 or hear what was happening, and may make a mistake. Ask
7 feel are justified in light of your experiences. 7 yourselves how good the witness' memory seems to be. Does the
8 Your decision on the facts of the case should not be 8 witness seem able to remember accurately what happened. Ask
9 determined by the number of witnesses specified for or against 9 yourself if there is anything else that may have been
10 a party. You should consider all the facts and circumstances 10 interfered with the witness' ability to perceive or remember
11 in evidence to determine which of the witnesses you choose to 11 the events. Ask yourselves about how the witness acts while
12 believe or not to believe. You may find that the testimony of 12 testifying. Does the witness appear honest? Does the witness
13 a smaller number of witnesses on one side is more credible than 13 appear to be evasive? Ask yourself if the witness has any
14 the testimony of a greater number of witnesses on the other 14 relationship to the government or the defendant or anything to
15 side. 15 gain or lose from the case that might influence the witness'
16 Finally, keep in mind that you must not consider 16 testimony. Ask yourself if the witness has any bias, prejudice
17 anything that you may have read or heard about the case outside 17 or reason for testifying that may cause the witness to slant
18 of the courtroom as evidence, whether before or during the 18 testimony in favor of one side or the other. Ask yourself
19 trial. 19 whether the witness testified inconsistently while on the
20 I would like to mention a few more principles about 20 witness stand, or if the witness said or did something at any
21 evidence which I think would help you as we proceed. Some 21 other time that is inconsistent with what the witness said
22 evidence is admitted for a limited purpose only. If I instruct 22 while testifying.
23 you that an item of evidence has been admitted for a limited 23 If you believe that the witness is inconsistent, ask
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2 yourself if it makes the witness' testimony less believe. 2 objection. At times I may sustain objections and you may hear
Sometimes, it may, sometimes it may not. no answer to a question or where an answer has already been
3 Consider whether the testimony is about something 3 given I may instruct that the answer is to be stricken or
important or about some unimportant detail. And ask yourself removed from the record, and I may direct you to disregard
4 if it seems like an innocent mistake or if it seems deliberate. 4 certain testimony or evidence. You must not consider any
And, finally, ask yourself how believable the witness' evidence to which an objection has been sustained or any
5 testimony is in light of all of the evidence in the case. Is 5 evidence which I have instructed you to disregard. The law
6 the witness' testimony supported or contradicted by other 6 requires that your decision be made solely upon the evidence
7 evidence that you find believable? 7 before you.
8 If you believe that a witness' testimony is 8 The testimony or evidence that I exclude from your
9 contradicted by other evidence, remember that people sometimes 9 consideration will be excluded because it is not legally
10 forget things and that even two honest people witnessing the 10 admissible.
11 same event may not describe it exactly the same way. 11 In reaching your decision, you must not draw any
12 These are only some of the things that you may 12 inference or conclusion from any unanswered question, and you
13 consider in deciding how believable each witness is. 13 must not consider any testimony which has been stricken from
14 You may also consider other things that you think shed 14 the record. To remind you, if I sustain an objection, it means
15 some light upon the witness' credibility. Use your common 15 that I have found the objection to be legally correct and the
16 sense and your every day experience in dealing with other 16 information to which it contains should not be considered by
17 people, and then decide what testimony you believe and how much 17 you. If I overrule an objection, it means that I have found
18 weight you think it deserves. 18 the objection to be incorrect as a matter of law, so the
19 No statement, ruling, remark or comment that I may 19 information to which the objection pertains may not be
20 make during the course of this trial is intended to indicate my 20 considered by you as you determine the facts.
21 opinion as to how you should decide the case or to influence 21 As you know by now, this is a criminal case. There
22 you in any way in your determination of the facts. 22 are three basic rules about a criminal case that you must keep
23 At times I may ask questions of witnesses. If I do, 23 in mind at all times. First, the defendant is presumed
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2 it will be to clarify a matter and should not be viewed in any 2 innocent until proven guilty. The indictment against the
way to indicate my opinion about the facts or to indicate the defendant brought by the government is only an accusation,
3 weight I feel you should give to the testimony of the witness. 3 nothing more. It is not proof of guilt or anything else. The
Remember that you as jurors are at liberty to disregard all defendant, therefore, starts out with a clean slate.
4 comments of the Court in arriving at your findings of fact. 4 Second, the burden of proof is on the government
Also, I may at times take notes. Keep in mind that throughout the case. The defendant has no burden to prove his
5 whether or not I'm taking notes on a particular time should not 5 innocence or to present any evidence or to testify. Since the
6 affect you or lead you to think that one piece of information 6 defendant has the right to remain silent, the law prohibits you
7 is more note worthy than another. 7 from arriving at your verdict by considering that a defendant
8 During the trial, it may be necessary for me to confer 8 may not have testified.
9 with the parties from time to time out of your hearing 9 Third, the government must prove the defendant's guilt
10 concerning questions of law or procedure that required 10 with respect to the charge in the indictment beyond a
11 consideration by the Court alone. On some occasions you may be 11 reasonable doubt. I'll give you further instruction on this
12 excused from the courtroom as a convenience to you and to us 12 point later, but bear in mind in this respect that a criminal
13 while I discuss such matters with lawyers. These occasions 13 case is different from a civil case.
14 will be kept to a minimum. I will meet with the lawyers in the 14 As I mentioned, at the end of the trial I will give
15 morning before we get started with you, and in the afternoon so 15 you detailed instructions on the law and those instruction will
16 that you're sent home in order -- after you're sent home in 16 control your deliberations and decision.
17 order to avoid, to the extent possible, interruptions when 17 But in order to help you follow the evidence, I will
18 you're here, but you should remember at all times the 18 now give you a brief summary of the offense that the government
19 importance of the matter you're here to determine, and please 19 must prove, beyond a reasonable doubt, to make this case with
20 remain patient. 20 respect to the charge.
21 The parties may sometimes present objections to some 21 After you've heard and seen all the evidence in the
22 of the testimony or other evidence. You should not be 22 case, I will ask you to deliberate carefully according to my
23 prejudiced in any way against the lawyer or party who makes an 23 instructions, and ultimately to render a decision regarding the
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2 defendant's guilt or innocence. 2 contact or to communicate with you in any way. If you should
Ultimately, your verdict of guilt or -- guilty or not happen to see any of the attorneys or their assistants or any
3 guilty for the defendant, will have to be based solely upon the 3 of the parties in the hall or anywhere else anywhere else
evidence about the defendant. during the trial, if they do not greet you or exchange
4 I will summarize the indictment at this point, and you 4 pleasantries, please understand that they're not being rude.
will have a copy of the indictment so don't worry now about They simply are following the Court's instructions that are
5 remembering everything I tell you. 5 given in every case.
6 As I indicated earlier today, the indictment consists 6 Third, it is important that you not read any newspaper
7 of one count charging Mr. Olivieri having committed perjury 7 articles or listen to radio or television broadcasts, or use
8 during a deposition for a civil case involving the New York 8 internet to obtain any information if there is any. Media
9 City District Council of Carpenters and Joiners, otherwise 9 accounts tend to be inaccurate, and they may contain
10 known as the Carpenter's Union. 10 information which is not proper evidence for you consideration.
11 For this count, Mr. Olivieri is alleged to have given 11 If there are any media reports about the case, please avoid
12 false testimony in a deposition conducted during that civil 12 reading or watching them.
13 case. 13 Fourth, do not try to do any research or make any
14 Now, let me give you some words about your conduct as 14 investigation of this case on your own.
15 jurors. As I've explained, your role is to consider all of the 15 Fifth, if anyone should try to talk to you about this
16 evidence properly before you. In order to decide the facts, 16 case, you must bring it to my attention immediately, but do not
17 you must endeavor not to decide any issue or form any opinion 17 discuss it with your fellow jurors. Likewise, should
18 in this case until you have heard all of the evidence, been 18 inadvertently read or see or hear anything concerning the case,
19 instructed by me in the law, and retired to the jury room to 19 you must immediately inform me.
20 deliberate until the case is submitted to you, which means at 20 Finally, do not attempt to form any opinion until
21 the end of the trial. You're not to discuss the case with 21 after all the evidence has been presented in fairness to the
22 anyone, not even your fellow jurors. Likewise, it would be 22 parties in this case. You should keep an open mind throughout
23 improper for you to allow anyone to discuss the case in your 23 the trial and reach a conclusion during your deliberation after
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TRIAL TRIAL
2 presence. In addition, you must not talk to parties or 2 all of the evidence is in, and you have heard the attorneys'
witnesses under any circumstances. closing arguments and my instructions on the law, and then only
3 Sometimes jurors have difficulty understanding that it 3 after an exchange of views with any members of the jury. In
is -- why it is that they're not allowed to discuss the case that way, each party's evidence will receive equal and fair
4 with each other. We ask that you not discuss the case because 4 consideration from you.
we want you to keep an open mind until you have heard all the Now, if you want to take notes during the course of
5 evidence and my instructions regarding the law. Therefore, we 5 the trial, you may do so. However, it is difficult to take
6 ask you to avoid discussing go the case with anyone until you 6 detailed notes and pay attention to what witnesses are saying
7 begin those deliberations. 7 at the same time. If you do take notes, be sure that your note
8 It is very important that you strictly observe the 8 taking does not interfere with your listening and considering
9 rules that must govern you during the recess or break during 9 all of the evidence. Also, if you take notes, do not discuss
10 the trial so as to assure the parties a fair trial by not 10 your notes with anyone before you begin your deliberations.
11 allowing any outside information or incidents to influence your 11 Please keep in mind that you will not be allowed to take your
12 consideration of this case. First, again, as I mentioned, do 12 notes with you at break time or the end of the day or at the
13 not discuss the case either among yourselves or with anyone 13 end of the trial. Note pads we will give you for this purpose,
14 else during the course of the trial. Do not permit anyone to 14 if you want them, should be left on your chairs in the
15 discuss the case with you in your presence. I realize this may 15 courtroom during breaks at lunch and at the end of the day.
16 be difficult to do, as it includes family members, spouses, 16 Whether or not you choose to take notes, remember that it is
17 friends and other close associates, but it is the only way for 17 your own individual responsibility to listen carefully to the
18 the parties to be assured of the absolute impartiality they're 18 evidence, and you can not give this responsibility to someone
19 entitled to expect from you as jurors. 19 else who is taking notes. Notes should be taken only to
20 Until you retire to the jury room at the end of the 20 refresh the recollection of the jurors who took the notes. You
21 case to deliberate, you simply are not to talk about the case. 21 should not use notes in your jury deliberations to prove to the
22 Second, the attorneys and the parties in the case, as 22 other jurors that your notes are in fact what a witness
23 in any case in this Court, I instruct them not to have any 23 actually said. Your notes reflect only your personal
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1 0ajzoli1 1 0ajzsol2 Opening - Ms. Zornberg
TRIAL minutes each, so that we should be able to conclude today
2 impression of what the witnesses actually said. We depend on 2 before 5:00 o'clock and we will resume tomorrow.
the judgment of all members of the jury. You're all MS. ZORNBERG: May I begin, your Honor?
3 responsible for remembering the evidence in the case. 3 THE COURT: Yes.
Remember, that taking notes are only aids to memory and should MS. ZORNBERG: On December 18th, 2007, Joseph
4 not be given precedence over your own independent recollection 4 Olivieri, the defendant, walked into a conference room with his
of facts. You must not allow your note taking to distract your 5 lawyer, sat down at the table and took an oath to tell the
5 attention from the proceedings. 6 truth. He was then questioned by an attorney for the
6 Now, you'll notice that we have an Official Court 7 Department of Justice. Mr. Olivieri was questioned in a Union
7 Reporter making the record of the trial. Although you will not
8 corruption case that the Department of Justice had brought to
8 have a typewritten transcript of the trial made available to
9 cleanup the New York City Carpenter's Union, to get rid of the
9 you when you are reaching a decision in the case, if you have
10 corruption and to get rid of the organized crime influence in
10 any questions about any portion or excerpt of the testimony, it
11 that Union. And what did Mr. Olivieri do when he questioned
11 may be possible to have an excerpt read back to you.
12 under oath? He lied repeatedly. He lied about two topics; his
12 That said, I will ask the Clerks to distribute note
13 involvement in corruption and his ties to organized crime, the
13 pads and pens to those of you who will ask for them.
14 very two things the Department of Justice was trying to root
14 Finally, let me take another minute to go over the
15 order of the trial. It will proceed as follows. First, the
15 out.
16 government will make an opening statement, which is simply an 16 Now, before I go into more detail, let me just take a
17 outline to give you a frame of reference and help you 17 moment to reintroduce myself. I'm Lisa Zornberg. I'm an
18 understand the evidence that the government will offer and 18 Assistant United States Attorney here in the Southern District
19 understand it as it comes in. 19 of New York. Mark Lanpher is also an assistant United States
20 Next, the defendant's attorney may, but does not have 20 attorney. Next to him is Roy Pollitt, an agent with the FBI.
21 to, make an opening statement. What is said in these opening 21 Next to him is Ryan Gibbs, an agent with the Department of
22 statements is not evidence. 22 Labor, and at the end of the table is Colleen Geier. Ms. Geier
23 The government will then present its witnesses, and 23 is a paralegal with our office, and she'll be helping with the
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1 0ajzoli1 1 0ajzsol2 Opening - Ms. Zornberg
TRIAL exhibits that you'll see during the trial. Ms. Geier is also
2 counsel for the defendant may cross-examine them. 2 new to the office, so you may see another paralegal assisting
Following the government's case, the defendant may, if her at times.
3 he wishes, present witnesses whom the government may 3 Now let me tell you a little bit about the Carpenters'
cross-examine. Union. There are more than 20,000 men and women in the City of
4 After all of the evidence is in, the attorneys will 4 New York who belong to the Carpenters' Union, and these men and
present their closing arguments to summarize and interpret the 5 women go to work every day hanging sheet rock, installing
5 evidence for you as they perceive it. What is said in the 6 ceilings, finishing woodwork, working with their tools. The
6 closing arguments is not evidence, just as what is said in the 7 very courtroom, courthouse that we sit in today was built with
7 opening statements is not evidence. Closing arguments are
8 the Union labor of New York City Union carpenters. And as
8 designed to present to you what the parties believe the
9 you'll hear, the men and women of the Carpenters' Union join
9 evidence has shown and what inferences they believe may be
10 that Union and pay dues to that Union for a very simple reason;
10 drawn from the evidence.
11 so they can earn a decent living and get benefits for
11 After you've heard all the closing arguments, I will
12 themselves and for their families, so they can get medical
12 instruct you on the applicable law, and you will then retire to
13 coverage and go to the doctor, so when they're done after the
13 deliberate on your verdict. Keep in mind that during your
14 years of hanging sheet rock, they can collect a pension and
14 deliberation, you will be permitted to see the exhibits that
15 have been admitted in evidence during the trial and to have 15 retire with dignity.
16 witness testimony read to you if you so request. 16 And while those carpenters are working in the field,
17 All right, at this point, the Clerks may distribute 17 they rely on the Union's officers and the trustees of their
18 note pads and pens and we will begin with the closing -- the 18 benefit funds to protect them.
19 opening statements, first from the government, and then from 19 But, ladies and gentlemen, you will hear that the
20 the defense, if the defendant chooses to make one. 20 Carpenters' Union became a morass of corruption and organized
21 MS. ZORNBERG: Your Honor, may I move the lectern? 21 crime influence. And as a result in the 1990s, the Department
22 THE COURT: Yes, you may. 22 of Justice failed a lawsuit called a civil RICO case. It had
23 These opening statements should last roughly 20 23 two goals. Number one, get rid of corruption; number two, get
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1 0ajzsol2 Opening - Ms. Zornberg 1 0ajzsol2 Opening - Ms. Zornberg
rid of organized crime influence. And as you'll hear in 1994, Now, as I mentioned, throughout this period of time
2 a federal judge in this courthouse issued an order in that case 2 investigations were going on in the civil RICO case, targeting
designed to protect working carpenters. The Judge appointed corruption in the Union. And you will hear that by the year
3 investigators. The Judge put certain rules in place to make 3 2006, those investigations had closed in on Jim Murray, the
sure that Union jobs were handed out fairly, not in a corrupt corrupt contractor, but they had not yet closed in on Joseph
4 way. And the Judge prohibited everyone in the Union and 4 Olivieri. Why not?
5 everyone in the Union's benefit funds from having any dealings 5 As you'll hear, when the investigation got hot, Jim
6 with mobsters. 6 Murray fled the country. He hopped on a plane. He went to
7 And as you'll hear, it was the job of the civil 7 Ireland to avoid being arrested. And it looked like Jim Murray
8 lawyers for the Department of Justice to make sure that those 8 was never coming back.
9 rules were followed. The Department of Justice has been 9 So now let's turn to 2007 when Joseph Olivieri was
10 policing those rules since 1994, and the Department of Justice 10 questioned under oath by the Department of Justice. As you'll
11 is still policing those rules today. 11 hear, Jim Murray was still in Ireland at the time, no sign of
12 So who is Joseph Olivieri? You will learn that during 12 him coming back. And you'll also hear that by this point in
13 the time that the Department of Justice was cleaning up or 13 2007, there were disputes in the civil RICO case about whether
14 trying to cleanup the Carpenters' Union, Joseph Olivieri became 14 efforts to cleanup the Union needed to continue or whether they
15 a big shot. In 1995, he became the head of an organization 15 had been successful.
16 that represented some of the biggest union contractors in the 16 Joseph Olivieri took a position in those disputes. He
17 City. And in the year 2000, Mr. Olivieri was appointed to be a 17 told the federal Judge that he and others had done all they
18 trustee of the Carpenter Union Benefit Funds. And he held both 18 could to eradicate corruption. Well, in response, the
19 of those jobs continuously until 22009. 19 Department of Justice wanted to test the truth of
20 But as the evidence will show, Joseph Olivieri was 20 Mr. Olivieri's claims. And the Court authorized the Department
21 corrupt. He had things to hide. First, he hid his 21 of Justice to question Mr. Olivieri under oath in what's called
22 relationship with a corrupt Union contractor. As you'll learn, 22 a deposition. And as the evidence will show, during that sworn
23 Mr. Olivieri received a million dollars worth of secret job 23 deposition on December 18th, 2007, Joseph Oliver lied through
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1 0ajzsol2 Opening - Ms. Zornberg 1 0ajzsol2 Opening - Ms. Zornberg
contracts and a $730,000 cash loan from a man named Jim Murray. his teeth. He lied about his relationship with Jim Murray, the
2 At the time Mr. Olivieri received these things, 2 corrupt contractor. He denied ever doing business with Jim
Mr. Murray's company was cheating the Carpenter Union Benefit Murray. When he made those false statements, he never thought
3 Funds out of millions of dollars. Did Joseph Olivieri want 3 Mr. Murray would ever come back from Ireland to say otherwise.
that information to come out? Of course not. He was a trustee Mr. Murray also lied under oath about his organized
4 of the Benefit Funds. He owed a duty of the highest kind to 4 crime ties to a man named Louis Moscatiello. As you will hear,
5 the men and women of the Carpenters' Union. He was trusted to 5 Mosciatello was a mobster with the Genovese crime family. And
6 act honestly without a conflict of interest, and to protect the 6 the evidence will show that in 1999 and 2000, Joseph Olivieri
7 Benefit Funds against fraud and stealing. 7 met with Louis Mosciatello numerous times. They met not to
8 But as you will hear, Joseph Olivieri betrayed that 8 talk about how the Yankees played last night. They met to talk
9 trust by secretly profiting off of business deals with a 9 about Union business and mob business. And this was right
10 corrupt contractor while allowing that contractor to cheat the 10 around the time that Joseph Olivieri was made a trustee of the
11 benefit funds. What Joseph Olivieri did was wrong and he knew 11 Benefit Funds, so he wanted to keep his relationship with Louis
12 it, and that is why he hid it. And it was wrong because people 12 Mosciatello a secret too.
13 are entitled to know that when they work their whole life to 13 So when he was questioned about it during his
14 collect a pension, the guy who is supposed to be protecting 14 deposition, Mr. Olivieri falsely denied, under oath, having
15 that pension isn't taking secret money on the side. 15 ever had meetings with Louis Mosciatello, having ever discussed
16 And that's not all that Mr. Olivieri was hiding. The 16 Union business or any business with this mobster.
17 evidence will show that at the very time that Joseph Olivieri 17 What were Joseph Olivieri's motives to lie? To hide
18 became a trustee of the Benefit Funds, he was hiding his 18 his corruption, to hide his betrayal of his trustee
19 relationship with a mobster in the Genovese organized crime 19 responsibilities, to hide his violation of the Judge's order in
20 family. So while the Department of Justice was trying, on the 20 the civil RICO case, to protect his job, and to protect
21 one hand, to cleanup the Union, Joseph Olivieri was doing the 21 organized crime influence in the Carpenter Union.
22 opposite. He was lining his own pockets, and he was violating 22 (Continued on next page)
23 the Judge's order to stay away from organized crime. 23
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1 0ajdoli3 Opening - Ms. Zornberg 1 0ajdoli3 Opening - Ms. Zornberg
MS. ZORNBERG: And because Mr. Olivieri knowingly gave Murray too.
2 false testimony under oath, he is now charged with the crime of 2 Now, as to Joseph Olivieri's organized crime
perjury. relationship with Louis Moscatiello, you're going to hear from
3 Now, I told you what this case is about and what we 3 witnesses that Louis Moscatiello was a mobster who sought to
expect the evidence to show. Now let me say a few words about control labor unions in New York City for the Genovese Crime
4 how the government will prove this case to you. 4 Family. Those witnesses will tell you that Joseph Olivieri met
5 We are going to prove this case you to through 5 numerous times with Louis Moscatiello, that the meetings were
6 witnesses and documents. First, you're going to hear from a 6 to discuss union business and organized crime business, and
7 few witnesses who will describe to you how the Carpenters' 7 that Joseph Olivieri reported to Louis Moscatiello.
8 Union operated, how its benefit funds operated, and what 8 Yet under oath, at his deposition, Joseph Olivieri
9 Mr. Olivieri's positions were. 9 said he never had a meeting with the man.
10 As to Joseph Olivieri's relationship with Jim Murray, 10 You will also hear from the Department of Justice
11 you will hear from a number of witnesses, including Jim Murray 11 attorney who took Joseph Olivieri's deposition in the civil
12 himself. And you will learn, after being criminally indicted 12 RICO case. And that attorney will explain to you how if
13 for his conduct Jim Murray made a decision to return from 13 Mr. Olivieri had been truthful in his testimony, if he had been
14 Ireland and face the charges. Mr. Murray came back to this 14 truthful that day, it would have mattered. Why would it have
15 country in 2008, about six months after Joseph Olivieri had 15 mattered? Because that was the precise purpose of the civil
16 already lied to the Department of Justice under oath. 16 RICO case, to clean up the union and to keep out the two things
17 Jim Murray has admitted to his crimes. He has pled 17 that were dirtying up the union -- corruption and organized
18 guilty. He has forfeited millions of dollars to the 18 crime.
19 government. And he is now cooperating with the government in 19 Finally, you will see the transcript of Mr. Olivieri's
20 the hope that if he discloses the corruption that he and others 20 sworn deposition testimony, and you will see for yourselves how
21 hid for so long, then maybe he will get a more lenient 21 he repeatedly and purposely gave false testimony to bury the
22 sentence. 22 truth, to bury it, about his own corruption and his own
23 Jim Murray will tell you how for years, for years, he 23 organized crime ties.
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1 0ajdoli3 Opening - Ms. Zornberg 1 0ajdoli3 Opening - Ms. Zornberg
paid off officers and trustees who held power at the Now, ladies and gentlemen, I'm about to sit down, but
2 Carpenters' Union so that his company could cheat the benefit 2 before I do, I would like to ask you to do three things.
funds. And Jim Murray will tell you how he got close to Joseph First, as the Judge mentioned, please pay careful attention to
3 Olivieri, the defendant, by giving Mr. Olivieri job contracts 3 the evidence as it comes in. This is an important case for the
and $730,000 so that Mr. Olivieri could buy and renovate some government. It is an important case for the defendant. And if
4 houses and how he also gave Mr. Olivieri workers from his 4 you pay close attention to the evidence, both sides will have a
5 company to renovate those houses. All of these things that 5 fair trial. Secondly, please follow Judge Marrero's
6 they did together Mr. Murray will tell you about, and he'll 6 instructions on the law. And, third, use your common sense,
7 tell you about how Joseph Olivieri helped his company in return 7 the same common sense that you brought into the courtroom with
8 while his company was cheating the very benefit funds that 8 you today.
9 Mr. Olivieri was supposed to be protecting. 9 If you do those three things, ladies and gentlemen, I
10 And what Mr. Murray has to tell you will be backed up 10 submit to you that at the end of the case you will reach the
11 by the documents and by what other witnesses have to say as 11 only verdict that is consistent with the evidence and with
12 well. You will see the job contracts that Mr. Murray gave to 12 common sense, a verdict that Mr. Olivieri is guilty of perjury
13 Olivieri. You will see the check for $730,000 that Jim Murray 13 as charged.
14 gave to Joseph Olivieri. You'll see the houses that Joseph 14 THE COURT: Mr. Gardner.
15 Olivieri bought with Jim Murray's money and that Mr. Murray 15 MR. GARDNER: Thank you, Judge.
16 helped him renovate. You'll see the phone records showing that16 Good afternoon, ladies and gentlemen. My name is
17 Jim Murray and Joseph Olivieri called each other over 350 times17 Brian Gardner. As you've heard, I represent Mr. Joseph
18 in a two-year period. That's an average of one call every 18 Olivieri, sitting next to me at the table.
19 other day. Yet under oath in his deposition, Joseph Olivieri 19 I'm going to start where counsel for the government
20 denied any business dealings with Jim Murray. 20 ended. She said, finally, you'll see the transcript of the
21 And you'll hear from other witnesses who knew of 21 deposition. Ladies and gentlemen, this is a perjury
22 Joseph Olivieri's hidden deals with Jim Murray. Why were they 22 prosecution. This is an allegation that Joe Olivieri lied in
23 in on the secret? Because they were receiving money from Jim 23 the deposition. That's what the charge is and that's what you
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1 0ajdoli3 Opening - Mr. Gardner 1 0ajdoli3 Opening - Mr. Gardner
are here to decide. was anything but hidden. This is so carefully aboveboard that
2 On my desk, I have that document. That is a 2 they -- he never touched the money. It was all done through
deposition in that book. Joseph Olivieri didn't lie in that the attorney's escrow account to make sure that he didn't --
3 deposition. 3 that there were no issues.
The government has to show you two things beyond a Thirdly, another area that counsel glossed over: He
4 reasonable doubt: One, Joseph Olivieri intentionally lied, 4 is the head of an association of contractors. He is not a
5 and, two, it was material to the proceeding in which it was. 5 union employee. He is not a union member. He doesn't get a
6 This is a civil deposition. Those two things. 6 union check. He is the head of an association of the other
7 Ms. Zornberg got up here, talked about, boy, this is a 7 side, the guys, the contractors, the employers, the guys at the
8 corrupt union, this is a bad union, the government's got to do 8 companies, and then they have employees that are members. But
9 something about this union. I don't dispute that. It has got 9 he represents the companies.
10 nothing to do with whether Mr. Olivieri lied in his deposition. 10 And those companies get to pick a trustee to put on
11 A whole host of people may have been arrested and charged with 11 the fund. Again, not the union. The union is broken up -- and
12 union corruption. Nothing to do with whether Mr. Olivieri lied 12 this was glossed over, too. There is a union with membership
13 in his deposition. 13 and a union hierarchy of people that are paid. There are funds
14 He didn't. Let me say it again. The evidence is 14 that have trustees of the funds. He is what's called a
15 going to show he did not lie in his deposition. All you have 15 management trustee. That means he represents the employers --
16 to do is read the deposition, the relevant portions, not -- 16 not the members, the employers on that fund. It is only
17 excuse me -- not just the snippets in the charge. There is a 17 important, really, because it means that he has a company that
18 count. There is a charge. It has a number of things the 18 does construction work and he is supposed to have a company
19 government says that he lied about. If you read those 19 that does construction work, and in doing that there is nothing
20 snippets, it is a little confusing. How do we know? Well, if 20 illegitimate about doing an excavation job or doing anything
21 you read the before and you read the after, it's very clear he 21 else.
22 didn't lie. He didn't. 22 Now, you heard again, this union's corrupt, the
23 Now, they play cute with his contacts and his 23 government has been after them for awhile, and Jim Murray had a
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relationships, and I'm going to talk about that in a second. whole scheme going. Jim Murray is paying people off. There is
2 Let me hit a couple of things that she says. 2 a whole hierarchy of people that he needs to pay off.
That there was secret job contracts; that sounds What he does, instead of having all union people on
3 pretty bad. That there was a 730 cash money given to him; that 3 the site, he'll have maybe some union and some nonunion. It is
sounds pretty bad, too. Nothing to do with the deposition, but a lot cheaper to have nonunion. So there is a whole chain of
4 it is to get you to think something bad. Right? Now, again, 4 people he needs to pay off to do that. All union members, shop
5 he didn't lie about that. That is not even in the deposition. 5 stewards, business agents, the head of the union. Nothing to
6 He wasn't asked about that at the deposition, but it sounds bad 6 do with Joseph Olivieri. Joseph Olivieri is not in that chain
7 so I am going to address it real quick. 7 at all. Joseph Olivieri, there is no allegation even on the
8 Secret job contracts? Those were job contracts that 8 government's glossary that he was ever paid off, that he was
9 he bid and actually bid at a low rate, and that not Jim Murray 9 ever given cash under the able, ever given a payment to look
10 gave him, somebody else gave him. He did the work. He did a 10 the other way. He wouldn't have the opportunity. He was not
11 great job. And that you won't hear the government say that he 11 in that chain of people to be affected
12 was paid too much for those contracts. You won't hear the 12 Again, I'm talking too much about what the government
13 government saying he was corrupt about the work that was done. 13 says that has nothing to do with the deposition. The
14 He physically did work. He has an excavating company -- I 14 deposition is a civil deposition. Just like -- evidence will
15 mean, a site work company, a demolition type company, where he 15 show, just like any one of us could be in if we were in a car
16 did the work, they were paid a legitimate fee, and that's it. 16 accident, if we had a dispute over a contract. He walks into a
17 The 730 cash loan that they talk about, again, never 17 conference room. She says the Department of Justice attorney,
18 asked about it in the deposition. But that 730 cash loan is 18 it is an attorney from her same office, an Assistant United
19 secret money? Sounds like under-the-hand -- under-the-table 19 States Attorney, and they talk. They talk for three, four,
20 money to Mr. Olivieri. That was a joint venture. They flipped 20 five, six hours. He is asked questions and he gives answers.
21 a couple of houses when people used to do that when the real 21 Then again, if you look at the deposition, every
22 estate market was different, and that money all went to an 22 question, every answer, entirely appropriate.
23 attorney's escrow account; you will see the documents. This 23 It's an issue, ladies and gentlemen, of snippets,
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Page 45 Page 47
trying to take out snippets at a deposition, trying to twist says no. Then they asked, did you ever meet with him regarding
2 the meaning of the deposition, and trying to take it out of 2 the District Council benefit funds? He says no. How about the
context. And the reason that we're here today is because the District Council? He says no. How about members of the union?
3 plaintiff in that case, the people that were taking the 3 No. All of those no's, that is not part of the perjury
deposition, were the U.S. Attorney's Office. They have an prosecution. She said all this case is about is the District
4 Assistant U.S. Attorney, an Assistant U.S. Attorney, an agent, 4 Council, the benefit funds.
5 an agent, a paralegal all reviewing this deposition to try to 5 Did you ever meet Lou Moscatiello about the District
6 pick out snippets that maybe this could be interpreted 6 Council? No. That is not a lie. That is not accused to be a
7 differently and maybe that could be interpreted differently. 7 lie. How about the benefit funds? No. That is not charged as
8 Ladies and gentlemen, when you look at it, when you 8 a lie. All right. Did you meet with him? No. He's repeating
9 see the flow of the conversation, when you see what was said or 9 the same conversations any of us would sit there and do. No.
10 what wasn't said -- and I'm going to give you one example 10 Ah, that -- we could say that is a lie because he must
11 before I sit down, but you cannot help but determine this is 11 have met him, with him somewhere. We already told you he met
12 not only silly, it's outrageous. Forget whether or not it is 12 with him at the diner. He seen him at the diner. He seen him
13 material, which I will talk about in a second, he didn't lie. 13 at a bank. And they will just grab that snippet and say that
14 Every question that was posed to him was answered entirely 14 is a lie, let's prosecute him for that. That is outrageous.
15 truthfully. 15 When you read the whole deposition, it is outrageous.
16 But, again, it is not my burden. They have to prove 16 Now, materiality is the second part they have to show.
17 beyond a reasonable doubt it is actually a lie, an intentional 17 And materiality is they say, we're here about the District
18 lie, not a mistake, not in error in understanding, he sat there 18 Council. Right? Now, he's there. Did you ever see Lou
19 and intentionally lied. And, ladies and gentlemen, it's silly. 19 Moscatiello regarding the District Council? No. Did they
20 He didn't. 20 charge perjury for that? No. That they say is an honest
21 I'm going to give you an example of that. And, again, 21 answer. So what is material? It is not here.
22 it's so important, I can't emphasize enough. It is not the 22 The same is true for Jim Murray. He doesn't deny the
23 last thing to look at, it is the first thing, and it is the 23 relationship with Jim Murray. He doesn't deny knowing Jim
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thing to keep in your mind throughout the trial. Murray. Jim Murray has a big company and it has a membership
2 There is a deposition and there is a flow and a 2 that is a member of the association. OK? And they asked
conversation at a deposition. If you look at the conversation, him -- "him" being Joseph Olivieri -- about the very specific
3 the questions that are asked before these questions and the 3 time periods in this deposition. And if you read the
questions that are asked after, all you have to do is sit and deposition again, before and after there are questions; it is
4 read that and you see he didn't lie. And it is outrageous that 4 very clear, he didn't lie. And he certainly didn't lie about
5 he's here. And I understand they are prosecuting the union, 5 anything material to what he is sitting there for in the civil
6 they are going after the union. That's great. God bless them. 6 deposition, but he didn't lie at all.
7 But to prosecute Mr. Olivieri for lying at a deposition when 7 They asked him questions. He gives them a specific
8 anyone can read and apply their common sense to it and say it 8 answer. In fact, he even flags the issue of the 730 loan. And
9 is not a lie? 9 I am going to talk about -- they are going to -- he said --
10 Let me give you an example where they get cute. Lou 10 they're asking him, Did you ever do business with him? And he
11 Moscatiello, they say he hid -- hid his relationship with Lou 11 says, I didn't do business with him himself, right, but others.
12 Moscatiello. How Lou Moscatiello is a bad guy and here is 12 But not him himself.
13 Joseph Olivieri at a deposition. He seems a little bit 13 Well, the reason Jim Murray -- and you'll hear him,
14 informal. He is at conference table, and they are asking 14 from Jim Murray -- when he flips these houses, he puts them all
15 questions about it. Right? Ms. Zornberg says he hid his 15 in his wife's name. OK? That is just one small example. They
16 relationship. 16 don't ask him who, if not himself. They have Jim Murray. Jim
17 If you read before the snippets that they have in 17 Murray is here. They can ask Jim Murray. This is how he does
18 here, Mr. Olivieri explains he's known him for 20-odd years. 18 business.
19 His sister-in-law dated this bad guy, Moscatiello's, son. They 19 It is a little complicated without actually having the
20 see each other at the diner, at the bank. They've seen each 20 deposition and the questions and the answers, but, ladies and
21 other for 20-odd years. This wasn't hidden. He is going over 21 gentlemen, it is like -- again, I have to bring it back to a
22 it and describing how they knew each other. 22 conversation. If you are having a conversation with somebody
23 Then they asked, Well, did you ever meet with him? He 23 and I say where did you live in 2001, and you say, oh, I lived
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1 0ajdoli3 Opening - Mr. Gardner 1 0ajdoli3
in Brooklyn in 2001. And I say where were you working. And (Jury not present)
2 you give me where you were working in 2001. And then the 2 THE COURT: All right. Thank you. Be seated.
government's parsing the deposition and they say, ah, he lied First, will the government give us some indication of
3 about where he was working. You didn't lie about where you 3 its line up for tomorrow?
were working; you were following the conversation, the flow of MS. ZORNBERG: Sure. Here are the first four
4 the conversation. And this isn't guesswork. This is going to 4 witnesses. First we will have Scott Danielson, who is a
5 be clear from just reading the deposition. 5 relatively short witness to provide some overview on the
6 You are going to hear -- I keep focusing on that 6 Carpenters' Union and its structure.
7 because you are going to hear from the government a lot of 7 After him will be Stuart Grabois, who is the head of
8 evidence about the union, a lot of evidence about bad stuff 8 the Carpenters' Union benefit funds. He will talk about the
9 that happened. None of it related to Joseph Olivieri. It is 9 benefit funds and Mr. Olivieri's role.
10 all a smokescreen. It's all trying to put up this fog, that 10 Then we expect to call Joseph Rizutto regarding
11 somehow we should just convict him. Forget what the deposition 11 contacts between Mr. Olivieri and Mr. Moscatiello.
12 says. Forget how just straightforward and honest he was in the 12 And then following that we expect to call Benjamin
13 deposition. Somehow we should just convict him. Jim Murray, 13 Torrance, who is the assistant who deposed Mr. Olivieri.
14 Moscatiello, these are bad guys. They're going to testify. 14 If we go beyond those first four witnesses, I will
15 Let's just convict him because of that. 15 have to consult with Mr. Lanpher about the order that comes
16 Ladies and gentlemen, it's more than that. It's his 16 after that. But generally speaking, after Mr. Torrance
17 life. It is his family. When you look at the deposition, this 17 testifies, we expect to call several additional witnesses
18 is outrageous. And I'm going to have an opportunity when I 18 relating to the Lou Moscatiello piece of the case.
19 stand up here at the end, and absolutely -- the U.S. attorney 19 THE COURT: All right. Can you give us some rough
20 stood up here and say bring your common sense -- absolutely 20 estimate of about how long Messrs. Danielson, Grabois and
21 bring your common sense. Bring your everyday common sense to 21 Rizutto will go?
22 what you hear and what you read in the transcript, because 22 MS. ZORNBERG: I can't anticipate how much cross there
23 there will be no result other than, other than to say "not 23 is, as indicated, but for Mr. Danielson, his testimony will
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1 0ajdoli3 Opening - Mr. Gardner 1 0ajdoli3
guilty" at the end. probably be between half an hour and an hour in total, I would
2 Thank you, your Honor. 2 estimate.
THE COURT: All right. I thank you. With Mr. Grabois, there are some documents to show him
3 We will adjourn for the day, and remind you, once 3 and to walk the jury through to familiarize them with the
again, that tomorrow we will commence at 10:30. When you come benefit funds. So that may take longer between direct and
4 in, please report directly into the jury room to which the 4 cross, maybe an hour to an hour-and-a-half, an hour to two
5 clerk will escort you now. 5 hours.
6 And as you go home today, as I will remind you every 6 Mr. Rizutto's direct examination is probably about one
7 day several times, do not discuss the case among yourselves or 7 hour. I don't know how long the cross will be. So that's --
8 with anyone on the outside or have any contact or read any 8 we don't know.
9 accounts about the case or communicate with anyone involved in 9 OK. And then Mr. Torrance, Mr. Torrance's direct is
10 it. If any of these things occur, you are directed to inform 10 probably about one hour, one to two -- about one to two hours
11 the Court immediately and not discuss it with your fellow 11 for direct examination.
12 members. 12 THE COURT: All right. By my count, this should take
13 Thank you again, and we will see you tomorrow at 13 three-and-a-half to four on the low side and roughly six on the
14 10:30. 14 high side. That is about as much time as we will have for
15 (Continued on next page) 15 tomorrow given that late start.
16 16 Mr. Gardner.
17 17 MR. GARDNER: Yes, your Honor. I think Torrance we
18 18 probably won't finish tomorrow. That is just my instinct.
19 19 But I have a question on Rizutto. Counsel stated that
20 20 she thought the direct might be an hour. My understanding is
21 21 that the Court -- this was somewhat limited testimony from
22 22 Rizutto based on the prior motion in limine practice.
23 23 MS. ZORNBERG: Your Honor, we will fully comply with
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1 0ajdoli3 1 0ajdoli3
the Court's October 12th order, which speaks for itself. The money or anything of that nature has nothing to do with
2 reason I estimated an hour is because anytime you have a 2 proving, the need to prove or show some organized crime issue
witness who is coming to testify who has previously pled guilty to show a relationship with Moscatiello, which is what the
3 to certain crimes, we just build in some additional time to get 3 Court ordered and limited them to.
out his own Giglio about what he pled guilty to. So it may This is what I was afraid of, that when the person
4 very well be that Mr. Rizutto's testimony is under an hour. I 4 testifies, now we'll try to expand it into all kinds of, you
5 was just trying to give a conservative estimate. 5 know, bad allegations about -- my associate is handing me the
6 MR. GARDNER: I just want to caution that I don't 6 order: "Thus, any testimony regarding organized crime ties
7 think Mr. Rizutto should be testifying about the criminal 7 that does not relate to this relationship is excluded." "The
8 history of organized crime in New York. He has a relatively 8 relationship" being be Olivieri and Moscatiello, not whether or
9 specific purpose that I thought it was limited to. 9 not he is passing notes to Rizutto or some other nefarious
10 THE COURT: All right. Ms. Zornberg, could you give 10 conduct.
11 us a proffer of what Mr. Rizutto will be testifying to? 11 THE COURT: All right. Understood.
12 MS. ZORNBERG: Certainly. 12 And this will be one of the tests where we are going
13 Your Honor, Mr. Rizutto was the head of a union called 13 to have to walk the line very closely and we'll have to make
14 Local 14. And he will testify in a very summary fashion about 14 judgments as the evidence comes in. All right.
15 how from an early time in the union, in that union, he learned 15 MS. ZORNBERG: Your Honor, that's fine. Just to make
16 it was under Genovese control, and then moving quickly to the 16 it clear, the evidence through Mr. Rizutto will be directly
17 point in time when Mr. Olivieri began passing messages from the17 relevant to what the relationship was between Mr. Olivieri and
18 Genovese Family to him at Local 14 on behalf of Louis 18 Mr. Moscatiello. So...
19 Moscatiello and the time that Mr. Olivieri then personally took 19 THE COURT: All right. Well, we'll assess that as it
20 Mr. Rizutto to a meeting with Louis Moscatiello. 20 is offered. If there is nothing else, I thank you. Have a
21 So we see no problem in being completely compliant 21 good day.
22 with the Court's order of October 12th. 22 (Adjourned to 10:30 a.m., Wednesday, October 20, 2010)
23 MR. GARDNER: Your Honor, the only issue I have is 23
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1 0ajdoli3
that I understand that there is a meeting alleged and that
2 there is an allegation in this Indictment about meetings with
Moscatiello. But Rizutto being controlled by the Genovese
3 Family and Local 14 and the backdrop to that and their claim
that Mr. Olivieri was passing notes to him on behalf of the
4 Genoveses would seem to have nothing to do with that other than
5 trying to malign Mr. Olivieri.
6 THE COURT: Ms. Zornberg.
7 MS. ZORNBERG: Your Honor, this was fully briefed to
8 the Court. And Mr. Rizutto's testimony goes completely to
9 materiality, falsity, all of these things, without rehashing
10 everything that was put into multiple pages of briefing. There
11 is no question that Mr. Rizutto has to lay some context as to
12 why he, as a business manager of Local 14, started being
13 visited by the defendant, Joseph Olivieri, on behalf of the
14 organized crime family. So we think the Court should reject at
15 this eleventh hour to relitigate the Court's ruling, which
16 speaks for itself, and if there was any issue, Mr. Gardner can
17 raise it tomorrow. But this is relevant testimony.
18 MR. GARDNER: Your Honor, you ruled. It is not the
19 eleventh hour, it is trying to enforce the Court's order. You
20 ruled that only to the extent necessary to show a meeting
21 between the two of them or relationship with Moscatiello could
22 any organized crime information come in. Whether or not
23 Olivieri is passing money to Rizutto or, even worse, taking
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1 0AKZOLI1
UNITED STATES DISTRICT COURT 1 0AKZOLI1
2 SOUTHERN DISTRICT OF NEW YORK how much flexibility we have, it's very important for the Court
------------------------------x
3 2 to adhere to a very rigid timetable so that we don't go beyond
UNITED STATES OF AMERICA, New York, N.Y.
4 the time scheduled for the trial to conclude, thereby cause a
v. 08 Cr. 0828 (VM) 3 lot of greater disruption in your calendars and the Court's and
5
JOSEPH OLIVIERI, the parties.
6
Defendant. 4 All right, shall we proceed?
7 5 MR. LANPHER: Yes, your Honor. The government calls
------------------------------x
8 6 Scott Danielson.
9 October 20, 2010 7 SCOTT DANIELSON,
10:49 a.m. 8 called as a witness by the government,
10
9 having been duly sworn, testified as follows:
11 Before:
10 DIRECT EXAMINATION
12 HON. VICTOR MARRERO, 11 BY MR. LANPHER:
13 District Judge 12 THE COURT: You may be seated. Speak into the
14 13 microphone as closely as possible, state your name and spell it
APPEARANCES
15
14 for the record.
PREET BHARARA 15 THE WITNESS: Scott Danielson, S-c-o-t-t,
16 United States Attorney for the
Southern District of New York 16 D-a-n-i-e-l-s-o-n.
17 BY: LISA R. ZORNBERG
MARK D. LANPHER
17 MR. LANPHER: May I proceed?
18 Assistant United States Attorneys 18 THE COURT: Mr. Lanpher.
19 SULLIVAN GARDNER, P.C. 19 MR. LANPHER: Thank you, Judge.
Attorneys for Defendant
20 BY: BRIAN L. GARDNER
20 Q. How old are you Mr. Danielson?
CHRISTOPHER TUMULTY 21 A. I'm 49 years old.
21 - also present -
SA Roy Pollitt, FBI Case Agent 22 Q. Could you explain your educational background for the jury?
22 SA Ryan Gibbs, U.S. Department of Labor
Colleen Geier, Government Paralegal
23 A. High school and some college.
23 24 SOUTHERN DISTRICT REPORTERS, P.C.
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1 0AKZOLI1 1 0AKZOLI1 Danielson - direct
(In open court; jury present) Q. And what do you do for a living?
2 THE DEPUTY CLERK: All rise. 2 A. I'm a carpenter.
THE COURT: Thank you. Be seated. Q. How long have you worked as a carpenter?
3 This is commencement of the trial of United States 3 A. Since 1981.
versus Olivieri, docket number 08 CR 0828. Q. Are you a member of any Union?
4 We're starting a few minutes later than the designated 4 A. Yes, I am. Carpenters Local 157.
5 time, 10:30. I understand that at least two jurors were late 5 Q. And is that -- how long have you been a member of the
6 and delayed the commencement of trial. 6 Union?
7 I stressed, yesterday, when we were going through the 7 A. Since 1981.
8 jury selection process, how important it is for all members of 8 Q. Is that Local part of the broader Carpenters' Union?
9 the jury to be here at the designated time, because we cannot 9 A. Yes, it's parts of the 11 Locals covered under the New York
10 start unless all of you are here, and any delay is only going 10 City District Council.
11 to cause the trial to take longer and inconvenience not only 11 Q. And what is the official or formal name of the Carpenters'
12 the parties and the Court, but your colleagues on the jury. 12 Union?
13 And if this continues to happen, we will need to take steps to 13 A. United Brotherhood of Carpenters Joiners of America.
14 make up the time. And if it's a repeat offender, we may have 14 Q. Can you explain to the jury what kind of work carpenters
15 to find ways of dealing with the repeated offender, you know 15 do?
16 who you are, because your fellow jurors were waiting while we 16 A. We do carpentry work. To use this room as a reference, we
17 were here to begin the trial. 17 did the woodwork here, the ceilings, the hardware, the benches
18 So I just -- I will let this one pass, but give you a 18 that we're sitting with.
19 warning that if there is any further lateness in our starting, 19 Q. And aside from this building, what kind of buildings across
20 we will need to make up the time by cutting back on the breaks 20 New York City do carpenters work?
21 and lunch hour or staying later at the end of the day or even 21 A. Mostly, you know, any commercial work, residential work
22 starting earlier in the morning. 22 covered under the District Council and the borough, five
23 Until we have a sense of how the trial is going and 23 boroughs of Manhattan; basically drywall, sheetrock, commonly
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1 0AKZOLI1 Danielson - direct 1 0AKZOLI1 Danielson - direct
known, framing, acoustical ceilings. We do have dock builders Q. So that's the nationwide organization?
2 that do piles and peers. We also cover shops. We also do the 2 A. Correct.
carpet, carpet tile, VCT tile. Q. And, approximately, how many carpenters are there in the
3 Q. Have you ever heard the term rank and file carpenter? 3 nationwide organization?
A. Yes, I did. A. Approximately 450,000.
4 Q. What is that? 4 Q. Now, below that it says New York City District Council.
5 A. That's our rank and file members. We have approximately 5 What is that?
6 23,000 members covered in the 11 Locals for the District 6 A. Well, the Brotherhood is broken down into regional councils
7 Council. 7 or district councils. We have a district council in New York
8 Q. So you've been a carpenter or part of the Union for 8 City, and that's what, that's what -- that's who you work for.
9 approximately 29 years you said? 9 Q. And what is the function of the New York City District
10 A. That's correct. 10 Council?
11 Q. How much of that time have you spent working as a carpenter11 A. We oversee the 11 Local Unions of the District Council.
12 with your tools? 12 Q. When you say that you over see it, what sorts of functions
13 A. From approximately '81 to 1995, and then I became the 13 does the District Council serve?
14 Financial Secretary of Carpenters Local 257 at that time, and 14 A. Well the District Council runs a central out-of-work list
15 then transferred to Local 157. And then approximately 1996 15 for the 11 locals, and the business agents work out of the
16 into '97, I was brought up to the District Council. I 16 District Council. They're paid by the District Council.
17 currently work there. 17 Q. We'll get to a couple of those terms in a minute.
18 Q. And in your nearly 30 years of membership, have you become 18 But first you've referred a couple of times to locals.
19 familiar with how the Carpenters' Union is organized? 19 Do you see where it says 11 New York City area local unions?
20 A. Yes. 20 A. Yes.
21 MR. LANPHER: Your Honor, may I approach? 21 Q. What does that mean?
22 THE COURT: Yes. 22 A. Well, this District Council has 11 Local Unions broken
23 Q. Mr. Danielson, I'm showing you what's been marked as 23 down. Some locals are broken down into geographical areas and
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government exhibit 16. Do you recognize that? also different types of trade.
2 A. Yes. 2 Q. In basic terms, what is a local union as opposed to the
Q. What is it? regional council?
3 A. It's an overlay of the structure of the District Council 3 A. Well, you have down on this chart two locals. They happen
and the Brotherhood of Carpenters. to be the two larger locals of the 11. They're carpenter
4 Q. Does that chart fairly and accurately reflect the structure 4 locals, basically doing interior, exterior work throughout New
5 of the Carpenters' Union? 5 York City.
6 A. Yes. 6 Q. So Local 608, for example, what area does that cover?
7 Q. Would that chart assist you in explaining the Union 7 A. That covers the West Side, Manhattan and the Bronx.
8 structure to the jury? 8 Q. How many Carpenters are members of Local 608,
9 A. Yes, it would. 9 approximately?
10 MR. LANPHER: Your Honor, the government offers 10 A. There's approximately 8,000 members.
11 government exhibit 16 in evidence. 11 Q. Now, what about Local 157, what area does that cover?
12 MR. GARDNER: Can I just see the copy? No objection, 12 A. That covers the East Side of Manhattan. That has
13 your Honor. 13 approximately 4,000 members.
14 THE COURT: Okay, admitted without objection. 14 Q. In terms of the 11 area Local unions, how many members are
15 (Government's Exhibit 16 received in evidence) 15 there total in the New York City area?
16 MR. LANPHER: Ms. Geier, could we put up government 16 A. There's approximately 23,000 members.
17 exhibit 16. 17 Q. And what's the largest Local within that?
18 Q. Okay, Mr. Danielson, let's look at the top first where it 18 A. Local 608.
19 says United Brotherhood of Carpenters and Joiners of America. 19 Q. Where are the New York City District Council's offices
20 What is that referring to? 20 located?
21 A. Well, the United Brotherhood of Carpenters Joiners of 21 A. We're located at 395 Hudson Street.
22 America covers the United States and Canada. We have 22 Q. Is that in Manhattan?
23 approximately 450,000 members that represent union carpenters. 23 A. New York City, correct.
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Q. Does every Local have its own office or do they operate out benefits.
2 of their as well? 2 Q. How does someone become a member of the Carpenters' Union?
A. Few of the locals are housed at 395 Hudson Street. If not, A. They have to join one of the 11 locals.
3 they have their own locations. 3 Q. Does a person have to qualify, in any way, to become a
Q. What about Local 608, for example? member of the Union?
4 A. 608 has actually two locations. They have one in the, on 4 A. Well, if they come as a mechanic, they can come in, and if
5 the West Side and they also have one in the Bronx. 5 they want to come as an a apprentice, they have to sign up
6 Q. Now, also on this chart to the right it lists District 6 through the school and register with the Department of New York
7 Council Benefit Funds. Could you explain what that is? 7 State Department of Labor.
8 A. Well, the Benefit Funds is also located at 395 Hudson 8 Q. Do carpenters pay dues to join the Union?
9 Street, and that's where signatory contractors make 9 A. There is an initiation fee, and there's also monthly
10 contributions for the members that have worked on their job 10 quarterly working dues.
11 sites and it controls their benefits. 11 Q. Now, what's a mechanic?
12 Q. Is that a separate entity from the District Council? 12 A. Mechanic is a full, a journey person, could be male or
13 A. Yes, it is. 13 female, of course, and they're at the top of level as a
14 Q. You said that that's where contractors make contributions. 14 carpenter.
15 Could you explain more generally what function the Benefit 15 Q. How about, are there other levels within the Carpenters'
16 Funds has? 16 Union of how you can join?
17 A. Well, the Benefit Fund, that's where we get our medical, 17 A. Yes. There are apprentices, there's -- starts at the first
18 our welfare and our pension comes out of there. 18 year apprentice, second year apprentice, third year apprentice,
19 Q. So contractors contribute money into the Benefit Funds for 19 fourth year apprentice, then you would graduate if you came up
20 carpenters, is that correct? 20 through that ranks as a mechanic journey person.
21 A. That is correct. It -- basically, everything is based on 21 Q. Now, does the Carpenters' Union issue any documentation to
22 how many hours a carpenter works, and that's how we get our, 22 people once they join the Carpenters' Union to show that they
23 our benefits that way. 23 are in fact members?
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Q. As a member of the Carpenters' Union, do you, for example, A. Yes. Each member's issued a dues card, and it goes based
2 get benefits from the Benefit Funds? 2 on when you pay your dues. We usually pay our dues quarterly,
A. Yes. Even as an employee of the District Council, all our so January, February and March would represent one quarter, and
3 employees are covered under the same basically benefit plan as 3 you'd get a membership card stating that the dues were paid up
our carpenters are. until that date.
4 Q. What sorts of about benefits do you get? 4 Q. Now, what advantages are there to a carpenter joining the
5 A. I get, you know, health, welfare. I get annuity. I also 5 Carpenters' Union?
6 get -- my pension comes out of there. 6 A. One of the advantages is of course the wage, the benefits
7 Q. How about family benefits, are they covered as well? 7 and basically job site safety. And we collectively bargain as
8 A. Yes. 8 one.
9 Q. So to be clear, how are those benefits funded? 9 And the advantages would be, if you're working for one
10 A. Well, they're funded -- they're generated on, based on 10 contractor and you get laid off, you move to the next
11 every hour a member works, there is a contribution based on the11 contractor, your benefits would follow and all the contractors
12 Collective Bargain Agreement. So if a carpenter works 35 hours12 pay the same amount of benefits at the end would get pooled,
13 in a week, he gets credit for the 35 hours worked that week. 13 and that's how you would get your pension credit and that's how
14 If he works more hours, he gets more credit. You work less, 14 you stay eligible for medical coverage.
15 you get less credit. 15 Q. Approximately, what percentage of the big construction jobs
16 Q. I guess my question is are the benefits pooled in the 16 in New York City are done Union or with union carpenters?
17 Benefit Funds or does everyone have an individual benefit 17 A. I would say approximately 70 percent of the high-rise
18 account? 18 commercial.
19 A. Everyone has their own account, but of course I'm sure they 19 Q. You said 70 percent?
20 purchased the benefits as a group. 20 A. Yeah.
21 Q. Well, what would happen, for example, if the Benefit Funds 21 Q. Now, you mentioned already salary and benefits for members
22 were under-funded? 22 of the Carpenters' Union. How is that decided? How is the
23 A. Well, if you're under-funded, we'd probably have to cut 23 salary and benefits decided for members of the Carpenters'
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Union? associations of group of contractors that do some of the work
2 A. That's based on a Collective Bargaining Agreement referred 2 can join up, and then they become a member of the association,
to as the CBA. That's an agreement between the signatory and they become the, basically, the bargaining group with the
3 contractor and the Union, which spells out the actual, the wage 3 District Council.
and the benefit package. Q. Could you give some examples of the big associations within
4 Q. You used the term "signatory contractor," what does that 4 the Union?
5 mean? 5 A. One is the Drywall Association, there's also the BCA
6 A. That's when a company wants to become union, they come down 6 Association.
7 and, and sign up and they become a signatory to our District 7 Q. What about the wall-ceiling association?
8 Council's CBA. 8 A. Right. There's also the Wall & Ceiling Association,
9 Q. Once a company becomes a Union company or signatory company 9 Drywall Association.
10 and has a collective bargaining agreement with the union, what 10 Q. That's what you were referring to as the Drywall
11 are the basic obligations of that company? 11 Association?
12 A. Well, they're bound by that, the terms of that basically 12 A. Yes.
13 agreement, and they would have to pay carpenters -- basically, 13 Q. So just to be clear, a company that wants to enter into an
14 the main thing is they would pay that wage and benefit to the 14 association --
15 District Council Benefit Funds. 15 A. Uh-huh.
16 Q. Aside from the wage limitations, are there other 16 Q. -- that association has its own collective bargaining
17 obligations on contractors who sign collective bargaining 17 agreement with the District Council?
18 agreements? 18 A. That is correct.
19 A. Well, there's also rules and regulations. There's 19 Q. And if a company doesn't enter into an association, it can
20 regulations on what spells out overtime, holidays and other, 20 sign a different kind of collective bargaining agreement, is
21 you know grievance procedures, if there is a problem on a job. 21 that correct?
22 Q. How about, for example, hiring carpenters who are not 22 A. Correct, correct, independent.
23 members of the Union? 23 Q. Now, I'd like to ask you a few questions about some of the
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A. Right. That also stipulates that if you do have a key officer potions within the Union.
2 carpenter that is not a member and he does want to join, does 2 A. Sure.
want to work for the employer, he can work seven days on the MR. LANPHER: May I approach, your Honor?
3 job site. From day one they have to pay the correct wage and 3 THE COURT: Yes.
benefits, but he has seven days to join one of the locals. Q. I'm showing you what's been marked as government exhibit
4 Q. So basically, a company who has a collective bargaining 4 17. Do you recognize that?
5 agreement with the Union has to hire Union members? 5 A. Yes.
6 A. Correct. 6 Q. What is that?
7 Q. Now, are there different collective bargaining agreements 7 A. That's basically the top positions at the District Council,
8 with the District Council for different contractors? 8 some of them.
9 A. Yes. 9 Q. Is that a -- have you seen that document before?
10 Q. Could you explain the different kinds of collective 10 A. Yes.
11 bargaining agreements the District Council has? 11 Q. Would that assist you in explaining to the jury what the
12 A. Well, different -- there's different rates of pay, like the 12 key positions in the Union are?
13 shop agreements have their own collective bargaining 13 A. Yes.
14 agreements, the dock builders, also the carpet layers. You 14 MR. LANPHER: The government offers government exhibit
15 know, it basically depends on -- some of it's generated by the 15 17.
16 craft of the type of work being done. 16 MR. GARDNER: No objection, your Honor. No objection.
17 Q. What about basic carpentry work or drywall work, for 17 Sorry.
18 example? If a company wants to be a drywall company, what kind 18 THE COURT: Admitted without objection.
19 of collective bargaining agreement can it sign with the Union? 19 (Government's Exhibit 17 received in evidence)
20 A. Well, there is, basically, two. There is the independent 20 MR. LANPHER: Ms. Geier, could we put up government
21 or you can belong to an association. 21 exhibit 17.
22 Q. What's an association? 22 Q. Okay, now, let's start at the top. It says "Key positions
23 A. That's a group of contractors -- well, there's different 23 within the Union." That's a reference to the Carpenters'
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Union? "business agents?"
2 A. Yes. 2 A. Yes.
Q. And it says "Executive Secretary Treasurer." What is that Q. Who is that?
3 position? 3 A. That's George Dilacio, Business Agent from Local 157.
A. Well, that's the top position at our District Council. Q. You said that the business agent's job is to monitor job
4 That's Executive Secretary Treasurer. He's the chief officer. 4 sites and make sure they're enforcing the collective bargaining
5 He oversees all the local unions and the day-to-day operations 5 agreements. What kinds of things are they looking for on job
6 of the District Council. 6 sites?
7 Q. So he's, basically, the top guy in the Carpenters' Union in 7 A. They're making sure that the job is running smooth. There
8 New York City? 8 might be problems with the manpower, the hiring, making sure
9 A. Yes. 9 everybody, you know, is -- basically, they oversee the shop
10 Q. From approximately 2000 through August 2009, who was the10 stewards on the job site. Each job has a shop steward and the
11 Executive Secretary Treasurer? 11 shop stewards report to the Business Agents, and they
12 A. Michael Forde. 12 basically, you know, they police the Collective Bargaining
13 Q. And do you recognize the picture to the right? 13 Agreement.
14 A. Yes, I do. 14 Q. How do business agents obtain jobs, is that an elected
15 Q. Who is that? 15 position, appointed position?
16 A. Michael Forde. 16 A. They're appointed.
17 Q. The next line it says "Business Manager of Locals." What 17 Q. Who appoints them?
18 is that? 18 A. The EST.
19 A. Like I explained before, the 11 Locals, each Local has a 19 Q. These top three positions we've been talking about,
20 business manager that's in charge of that Local Union, which in 20 Executive Secretary Treasurer, Business Manager, and Business
21 turn he has a group of agents that work underneath him, and he 21 Agents, are those full-time salaried positions?
22 is the boss of that group of agents. 22 A. Yes.
23 Q. To be clear, the Business Manager of a Local is the top 23 Q. Now let's turn to the next line where it says "shop
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person within that Local? stewards." You mentioned that term already, but could you
2 A. That is correct. 2 explain to the Court and jury what that means?
Q. Is that an appointed position or an elected position? A. Shop stewards are the rank and file members that have, that
3 A. That's appointed. 3 are shop stewards that are dispatched to each job site.
Q. Who appoints a position within a Local? Q. And what is their purpose on a job site?
4 A. The EST. 4 A. Basically, they're the eyes and ears of the Union. They're
5 Q. So the EST appoints each Local's businessman? 5 the first line of defense on the job site. They're actually
6 A. Correct. 6 working carpenters. They have like a second role of policing
7 Q. Who was the Business Manager of Local 608 from 7 the job as a shop steward.
8 approximately 2000 through August 2009? 8 Q. Again, when you say "policing the job," what are they
9 A. John Greaney. 9 looking for?
10 Q. Do you recognize the picture to the right where it says 10 A. They're looking for violations possibly of the Collective
11 Business Manager of Locals? 11 Bargaining Agreement, making job -- making sure, you know,
12 A. Yes. 12 everything is safe for our workers to work on the job, and they
13 Q. Who is that? 13 field, you know, complaints.
14 A. John Greaney. 14 Q. Do you recognize the picture to the right of where it says
15 Q. The next line it says "Business Agents." You've referred 15 "Shop Stewards?"
16 to that a couple of times already, but could you explain what a 16 A. Yes. He's one of the shop stewards from Local 608.
17 business agent is? 17 Q. Who is that?
18 A. Business agent, basically, oversees the work that's on the 18 A. Buck Brennan.
19 job sites; basically, polices the job site, enforces the 19 Q. Now, have you ever served as a shop steward?
20 collective bargaining agreement. And each Local has a certain 20 A. Yes.
21 amount of agents, you know, based in their geographical area to21 Q. For how long?
22 police the job sites in their area. 22 A. Approximately ten years.
23 Q. Do you recognize the picture to the right of where it says 23 Q. Does a carpenter have to go through any kind of training in
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order to become a shop steward? correctly.
2 A. Yes. The District Council has set up training. There is a 2 Q. These four positions that we've been talking about, are
class that they have to attend to, an eight hour class, plus they all fiduciary positions?
3 they're required to taken an OSHA ten class, first aid, CPR, 3 A. I would say so.
sexual harassment. There is a laser class that they have to Q. Now, I want to turn back to something you mentioned a
4 take. I think that covers most of the jobs they have to take. 4 minute ago about how shop stewards are dispatched to job sites.
5 Q. I believe you referred to the picture on the right there as 5 How do shop stewards get assigned to jobs?
6 Buck Brennan? 6 A. They get assigned off -- the District Council runs a
7 A. Uh-huh. 7 central out-of-work list, and being a shop steward is
8 Q. Is that correct? 8 considered like a skill. So when a contractor calls in for
9 A. Yes. 9 members to go to a job, we enter that into the system, and
10 Q. Is that his proper name, do you know? 10 based on the craft, the member gets dispatched to that work
11 A. His last name is Brennan. I think it's Michael. I know 11 site and to serve as a shop steward.
12 him as Buck. 12 Q. Let's break that down for a minute. First you mentioned
13 Q. I want to get back to policing the job sites and the shop 13 the out-of-work list. What does that mean?
14 stewards' role in that. What, if anything, does the shop 14 A. Well, the District Council runs a out-of-work list. For
15 steward do to report back to the Union about what's going at 15 members that are unemployed, they put themselves on our
16 job sites? 16 out-of-work list by telephone, and they also list the type of
17 A. Well, they file a weekly shop steward report. It's a 17 skills that they wish to perform as a carpenter. And once
18 document that, basically, is the job report card. Everybody 18 they're on the list, as the jobs come in they get sent out off
19 that comes to the job, the shop steward takes his name and his 19 the list in their position, and also the type of skills that
20 either Social Security number or his UBC number and logs that, 20 they have to meet to match that contractor's request, and then
21 and it's broken down by day by day, Monday through Sunday. And 21 they go to the job.
22 depending on how many hours worked that day, he puts an entry 22 Q. So, basically, a person who has been out of work the
23 in. 23 longest gets assigned to the next job?
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Q. Is that report supposed to show everybody who is working on A. Basically, if he's qualified with those skills.
2 a job site on a given day? 2 Q. At any given time, about how many carpenters within the
A. Yes. Union are on the out-of-work list?
3 Q. And what is that report used for by the Union? 3 A. It usually fluctuates between 3,000. It's up towards I
A. Well, the Union uses it to check the 50-50 rule. And then think between five and six right now.
4 at that point then it's taken to the District Council, and then 4 Q. And typically how long does a carpenter have to wait on the
5 it's handed over to the Benefit Funds, and the Benefit Funds 5 out-of-work list before getting dispatched to a job?
6 use it to make sure that contributions were made for each 6 A. It could run from anywhere from eight weeks to 16 weeks up
7 member. And they can use it for -- they use it for their 7 depending on, you know, the supply and demand.
8 audits and whatever, whatever they deem necessary. 8 Q. And to be clear, you said that shop stewards are assigned
9 Q. Let me just focus on the last part for a minute. You said, 9 jobs off of the out-of-work list, is that correct?
10 they use it to check the benefits. What does that mean? 10 A. Correct.
11 A. Basically to record -- if a carpenter works seven hours and 11 Q. A contractor can't simply hire their own shop steward?
12 is on a report, they need to check it to make sure that 12 A. No. That's one, that has to come off the out-of-work list.
13 signatory contractor purchased seven hours for that day's worth 13 Q. And why is that?
14 of work. 14 A. Well, basically, the District Council's also on the consent
15 Q. By that, do you mean that the carpenter, excuse me, that 15 decree, and part of our out-of-work list rules and regulations,
16 the contractor contributed money into the Benefit Funds? 16 that all shop stewards must come off the out-of-work list.
17 A. Yes. 17 Q. Now, I just want to talk through a typical Union job, give
18 Q. Are you familiar with the term "fiduciary"? 18 an example of it.
19 A. Yes. 19 When a Union contractor begins work at a job, what's
20 Q. What does it mean for a union officer to be a fiduciary? 20 the first thing that's supposed to happen?
21 A. Well, basically, the agents are put in a position of trust, 21 A. They call the District Council and register the job and
22 and part of their job is to enforce the CBA, the Collective 22 they get a job number.
23 Bargaining Agreement, to make sure everybody gets paid 23 Q. And what's the purpose of them doing that?
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A. Well, they have to register the job under the CBA, that's A. All members would be affected.
2 one of the rules in the CBA. And then when they need the 2 Q. And can you explain again why that is?
proper manning on the job is when we use that number to send A. Because actually if the hours, it would go that low, they
3 the -- we arm the carpenter, the shop steward with that number 3 would have to cut back some of our benefits.
and he enters that number on the shop steward report. MR. LANPHER: May I have a moment, your Honor?
4 Q. So going through that a bit, the first thing is the 4 THE COURT: Yes.
5 contractor calls in the job to the Union? 5 MR. LANPHER: No further questions.
6 A. Yes. 6 THE COURT: Thank you.
7 Q. And then what does the Union do in terms of sending men to 7 Mr. Gardner.
8 the job? 8 MR. GARDNER: Thank you, Judge.
9 A. Well, what it has to do when the job commences, it starts. 9 CROSS EXAMINATION
10 The contractor would tell either the Agent or the District 10 BY MR. GARDNER:
11 Council what type of work's being done. So if it was 11 Q. Good morning, Mr. Danielson.
12 woodworking and drywall, they would put down woodworking 12 A. Good morning.
13 drywall shop steward, and they would go down the list that 13 Q. My name is Brian Gardner and I represent Mr. Olivieri.
14 matches the geographical area where the job site's being 14 You know Mr. Olivieri?
15 performed and then they would do a dispatch. The next person 15 A. Yes.
16 that would show up with those, that criteria would get 16 Q. Do you know him as a member of the Carpenter Union?
17 dispatched the next morning to start work. 17 A. No.
18 Q. And you the Union sends shop steward to the job? 18 Q. Do you know him as the director of one of the associations
19 A. Yes. 19 you mentioned?
20 Q. And after that, what is the shop steward supposed to do 20 A. Yes.
21 while on that job? 21 Q. Which one?
22 A. Once he gets sent to that job, he'll record down all the 22 A. Wall & Ceiling.
23 carpenters that are on that job on the shop steward report, and 23 Q. Okay. When we --
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1 0AKZOLI1 Danielson - direct 1 0AKZOLI1 Danielson - cross
depending on the manning requirements for that job, the job MR. GARDNER: I'm going to ask the government to put
2 could fluctuate from to four carpenters to 50 carpenters, 2 back up GX-16 if they don't mind?
depending on, you know, the scope of work for that contractor. THE COURT: Yes.
3 Q. What happens -- well, let me start that over. 3 Q. Now, in the middle it says, on the left-hand side it says
You said that throughout the job the shop steward is District Council, on the right-hand side it says Benefit Funds;
4 supposed to record who is working there on the job site every 4 right?
5 day? 5 A. Uh-huh.
6 A. Yes. 6 Q. And those two are separate entities?
7 Q. And the number of hours worked? 7 A. Correct.
8 A. Correct. 8 Q. Okay. So Union members, Union officials are on the
9 Q. What happens if the shop steward fails to report certain 9 left-hand side, the District Council, correct?
10 contractors or certain carpenters who are at the job site on a 10 A. Correct.
11 given day? 11 Q. Mr. Olivieri never on that left-hand side, correct?
12 A. Well, we would -- the carpenter wouldn't get credit for 12 A. Correct.
13 that work performed, and then the Benefit Funds would have a 13 Q. Did you know Mr. Olivieri as a Trustee for the Benefit
14 loss. 14 Funds at any point?
15 Q. What do you mean, the Benefit Fund would have a loss? 15 A. Yes.
16 A. Well, the whole thing is generated off the hours that are 16 Q. Do you know around when he became a Trustee?
17 worked. So we would have -- you know if the carpenter's 17 A. No.
18 working there, we're not getting the benefits, then it would 18 Q. Do you know if that's a paid position?
19 be, you know, detrimental to the Union because again we're all 19 A. No.
20 funded together and we pool off of the hours generated off the 20 Q. Do you know it's not a paid position or you're not sure?
21 job sites. 21 A. I believe -- I'm led to believe it's unpaid position.
22 Q. So who ultimately is hurt if a shop steward fails to report 22 Q. It's an unpaid position?
23 carpenters who are working on a job site? 23 A. Correct.
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1 0AKZOLI1 Danielson - cross 1 0AKZOLI1 Danielson - cross
Q. Okay. Now, you haven't actually physically worked as a in the contract?
2 carpenter for 15, 16 years? 2 A. Correct.
A. That's correct. Q. I'm just curious, if you're not -- if a member, a
3 Q. You gave us some of your background, but I missed what your 3 carpenter, guy actually working on the job site, if he's not
current duties, obligations are with the District Council. yet a member of the Union, is he still eligible for those, like
4 A. One my functions is the out-of-work supervisor. 4 the medical benefits?
5 Q. How long have you been the supervisor for the out-of-work 5 A. I would believe so if they're in his name.
6 list? 6 Q. But do they get put in his name until after he joins or
7 A. Approximately since 1998. 7 before?
8 Q. So when we talk about shop stewards being assigned from the 8 A. The name as the contractor, I'm led to believe when the
9 out-of-work list, that's your responsibility? 9 contractor purchases it, he has to give the guy's Social
10 A. That's my -- yeah, my staff off the out-of-work list 10 Security number, UBC number.
11 correct. 11 Q. Now, you're aware -- you've been doing the hourly list --
12 Q. Are you the head of that? 12 I'm sorry. The out-of-work list is also called the hour list?
13 A. Yes. 13 A. Similar.
14 MR. GARDNER: Okay. I'm going to ask the government 14 Q. Similar?
15 if they can be kind enough to put on GX-17. 15 A. Out-of-work list, OWL.
16 Q. And you gave us a description here of these Union -- these 16 Q. OWL, right. And you've been doing that since '98?
17 are all Union employees, right? 17 A. Yeah.
18 A. No. 18 Q. So you're familiar with some corruption that's gone on
19 Q. So who is not a Union employee on here? 19 regarding some of the shop students, stewards and business
20 A. The shop steward. 20 agents concerning the out-of-work list?
21 Q. And we have one shop steward, but in reality there would be 21 A. Yes.
22 many many shop stewards, right? 22 Q. And did that corruption involve some contractors utilizing
23 A. Correct. 23 non-union labor on job sites, and then paying off the shop
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Q. And we have one business agent, but in reality there are stewards to not report it to the Union?
2 many business agents, right? 2 A. Yes.
A. Correct. Q. And in doing that, is it your understanding that the shop
3 Q. Shop stewards, you say, are not employees because shop 3 stewards received the payment, the business agents received the
stewards are paid by the contractor? payment, the business manager and the EST all received
4 A. Correct. 4 payments?
5 Q. Now, you were asked questions about Union contractors using 5 A. Yes, with the ongoing criminal case, yes, with their pleas,
6 Union labor on work sites, right. 6 yes.
7 A. Uh-huh. 7 Q. And in those chain of people, right, Mr. Olivieri is not on
8 Q. I think just to clarify one piece. You said that a Union 8 that chain, correct?
9 contractor, somebody who signed an agreement with the Union, 9 A. That's correct.
10 has to use Union labor on the work site, is that true? 10 Q. Okay. And, in fact, if a contractor wants to bribe people
11 A. Correct. 11 so that he can put non-union labor on the site, there is no
12 Q. But it's not -- he can hire -- it's also true he can hire 12 need to involve Mr. Olivieri. Those, that's the group of
13 non-union labor. It's just at some point, after being hired, 13 people that need to be bribed, right?
14 they have to join the Union, right? 14 MR. LANPHER: Objection, your Honor.
15 A. Correct. But at the beginning they have to pay the correct 15 THE COURT: Sustained.
16 wage and benefits. 16 Q. You're familiar with how the corruption worked in terms of
17 Q. Okay. But otherwise you're familiar with the anti- 17 bribing people so that non-union labor can be put on job sites,
18 discrimination rules? 18 right?
19 A. Right. And the seven day clause. 19 MR. LANPHER: Objection.
20 Q. Right. So that actually the Union can't forbid a 20 THE COURT: Sustained.
21 contractor from hiring non-union labor, right? 21 Q. You don't have any reason to believe Mr. Olivieri is
22 A. Right. But they have to pay the correct wage and -- 22 involved in that corruption, do you?
23 Q. But they have to pay the wages and dues that are called for 23 MR. LANPHER: Objection, your Honor.
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THE COURT: Sustained. Mr. Olivieri gave truthful answers in that deposition?
2 Q. Are you familiar with the grievance process? 2 MR. LANPHER: Objection, your Honor.
A. Some. THE COURT: Sustained.
3 Q. And grievance process is if there is a dispute between how 3 Q. In running the out-of-work list, do you pick the shop
much a contractor owes, it's called for in the contract what stewards that go to various sites?
4 they're supposed to do? 4 A. No.
5 A. It's not only that. It's anything with collective 5 Q. Who does that?
6 bargaining grief. 6 A. The computer.
7 Q. And that even includes some of the rules in terms of what 7 Q. Okay. And how is the computer generated?
8 people can do and they can't do on the site? 8 A. The computer -- basically, depending on the geographical
9 A. Right. Starting times, various things. 9 area of the job, we have different lists, and depending on the
10 Q. And are you familiar that with Mr. Olivieri in his capacity 10 skills that are called in, it matches the member that's
11 as the Director of the Association, that he would participate 11 available that day and that dispatches the member.
12 in those grievances for his members? 12 Q. So if a contractor wants to game that system or somehow
13 A. Yes. He represents some of the contractors. 13 manipulate that system, is that part of the allegations of the
14 Q. Did you, did you believe that to be an appropriate wrong in 14 corruption against the shop stewards?
15 any way? 15 MR. LANPHER: Objection, your Honor.
16 A. I don't understand the question. 16 THE COURT: Sustained.
17 Q. Mr. Olivieri, as head of the Association is representing 17 MR. GARDNER: Your Honor, may we approach on that?
18 his membership at those grievances or arbitrations, correct? 18 THE COURT: No.
19 A. Right. He's their association he's -- he becomes their 19 MR. GARDNER: No? Then I have no further questions.
20 bargaining, you know, person. 20 Thank you.
21 Q. And he also did that while he was a trustee of the funds, 21 THE WITNESS: Thank you, sir.
22 correct? 22 MR. GARDNER: Thank you.
23 A. I believe so. 23 MR. LANPHER: No questions, your Honor.
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Q. And there's nothing wrong with that, right? THE COURT: Thank you. You may step down.
2 A. I don't -- you know, I don't know if I would be the person 2 THE WITNESS: Thank you, sir.
to say if there is anything wrong. I don't see anything wrong (Witness excused)
3 with it, personally. I don't know there is, you know, a 3 THE COURT: Ms. Zornberg.
conflict there, but not that I'm aware of. MS. ZORNBERG: Yes. The government calls Stewart
4 Q. You gave us some numbers on how many District Council 4 Grabois as its next witness, with the Court's permission.
5 members there are. I think you said 23,000, right? 5 STUART GRABOIS,
6 A. Approximately, yeah. 6 called as a witness by the government,
7 Q. Are those active members? 7 having been duly sworn, testified as follows:
8 A. That's everybody. 8 DIRECT EXAMINATION
9 Q. How many of the 23,000 are active? 9 BY MS. ZORNBERG:
10 A. I think it's somewhere around 18,000. 10 THE COURT: Be seated. Speak into the microphone,
11 Q. Now, you testified, since the late '90s you were in charge 11 state your name and spell it for the record.
12 of the out-of-work list. Did you make any changes to the 12 THE WITNESS: Stuart, S-t-u-a-r-t, middle initial R,
13 functioning of the out-of-work or work list because of 13 last name G-r-a-B-o-i-s.
14 corruption issues as shop stewards? 14 MS. ZORNBERG: May I inquire, your Honor?
15 A. Yes, we did. We've had an independent investigators and we15 THE COURT: Ms. Zornberg.
16 did make some changes. 16 Q. Where do you work, Mr. GraBois?
17 Q. Any of those changes involve Mr. Olivieri? 17 A. New York City District Council of Carpenters Benefit Funds.
18 A. No. 18 Q. And where are the offices of those Benefit Funds located?
19 Q. Have you been informed of Mr. Olivieri gave a deposition in 19 A. 395 Hudson Street.
20 the civil case involving the District Council? 20 Q. Is that here in Lower Manhattan?
21 MR. LANPHER: Objection, your Honor. 21 A. Yes.
22 THE COURT: Sustained. 22 Q. Is that the same building that houses the District Council
23 Q. You have no knowledge or belief on whether or not 23 of Carpenters?
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1 0AKZOLI1 GraBois - direct 1 0AKZOLI1 GraBois - direct
A. Yes, it is. Q. And are those medical and welfare benefits also available
2 Q. What is your position with the District Council Benefit 2 to carpenters' family members or --
Funds? A. Yes, they are, their dependents.
3 A. I'm the Executive Director. 3 Q. You mentioned that there is a pension benefit. Can you
Q. In general terms, what are the District Council Benefit just, briefly describe what the pension fund is?
4 Funds? 4 A. Pension fund administers -- well, let me go back a couple
5 A. They're funds that handle the for the beneficiaries the 5 paces. It's a pooled account. And the whole idea of it is is
6 benefits of, for the members the participants. It includes 6 that at the time that participant is ready to retire, a member,
7 pension, annuity, we call welfare, it's medical, health and 7 that there is a formula and member would come in and, based
8 welfare, vacation, and there is a technical college. 8 upon the work record that the individual had, years of service,
9 Q. How long have you held the position of Executive Director 9 they would be told what their pension would be.
10 of the Benefit Funds? 10 Q. Okay. Do the Benefit Funds supply Carpenters with annuity
11 A. A little over 17 years. 11 benefits?
12 Q. For whose benefit do those funds exist? 12 A. Yes, they do.
13 A. The members, the participants. 13 Q. What are those?
14 Q. How are the Benefit Funds governed? 14 A. Annuity is also a contribution that's made from the
15 A. Through Board of Trustees. 15 contractor on behalf of the member. Basically, that's dollar
16 Q. And what are your responsibilities as the Executive 16 for dollar. That's based on the individual's work record.
17 Director? 17 That's administered by an outside vendor, Prudential Financial.
18 A. I oversee the day-to-day operations of the Funds and I 18 Q. And why is that benefit provided to carpenters?
19 report to the Board of Trustees. 19 A. It's one of the benefits that the Union gives to the
20 Q. Do you have a staff? 20 member.
21 A. I do. 21 Q. How does the annuity plan differ from the pension plan?
22 Q. How many people do you oversee? 22 A. The annuity plan and also there is a plan, vacation fund,
23 A. I would say close to 125 to 150 people. 23 these are dollar for dollar. It's based on the individual's
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Q. And who do you report to? record, and it goes directly to the individual's account. The
2 A. Trustees. 2 pension and the health and welfare, what's called pooled
Q. Prior to becoming the Executive Director of the Benefit account, it goes into sort of a general fund, whether it's
3 Funds, what type of work had you done? 3 pension or for health and welfare.
A. I was Federal Prosecutor in this district for 11 and a half Q. You also mentioned something called the technical college?
4 years in the Criminal Division, and I was with the Department 4 A. That's we call it, the school, yes.
5 of Justice for 21 years total, including that time. 5 Q. Is that covered by a training fund?
6 Prior to that time, I was Chief of Felony Trial 6 A. Yes, it is.
7 Division for Legal Aid Criminal Division here in the City. 7 Q. And can you describe how this benefits members?
8 Q. Mr. GraBois, do you know Joseph Olivieri? 8 A. Well, it's individual, lot of times it's kids rights out of
9 A. I do. 9 school. It's either through high school or equivalency
10 Q. How do you know him? 10 diploma, and they're taught a trade while they're working.
11 A. Joe Olivieri was a Trustee on the Benefit Funds and I dealt 11 Q. Is that technical college supported by the Benefit Fund?
12 with him. 12 A. Yes, it is.
13 Q. Okay. Before we speak a little more about that, let's talk 13 Q. Now, for each of the different benefits we've described, is
14 about the benefits that are offered through the Funds. You 14 there a separate fund of money that's maintained?
15 mentioned welfare benefits. Generally, what type of benefits 15 A. Yes.
16 does that include for carpenters? 16 Q. Approximately, how many people in total receive benefits
17 A. Medical coverage, behavioral health, people have alcoholism17 through the District Council Benefit Funds?
18 problems, psychiatric problems, and hospitalization, doctors' 18 A. Including participants beneficiaries, I would say with
19 office, visits, things of that nature. 19 dependents, approximately 80,000.
20 Q. Does it cover prescription drugs? 20 Q. Does that include both working and retired carpenters?
21 A. It does. 21 A. Yes, it does.
22 Q. Dental? 22 Q. And, approximately, how much money is in the Benefit Funds
23 A. Yes. 23 currently?
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A. The value of the funds in total, including the building ERISA, which is the Employee Retirement Income Security Act,
2 which is owned by the pension fund, 87 and a half percent of 2 the member, if they can prove that they worked, they must get
it, I would say close to $3.5 billion. pension credit. So if the contractor who pays in, who
3 Q. Generally, how does money come into the Benefit Funds? 3 legitimately pays in and the one who doesn't, it's still a
A. Through contributions. member who worked for the contractor who doesn't pay in will
4 MS. ZORNBERG: May I approach, your Honor? 4 still get money from that fund.
5 THE COURT: Yes. 5 So when I say a "pooled account," it's a pool of money
6 Q. Mr. GraBois, I'm handing you what's been marked as 6 that goes in. And when the individual's ready to retire or if
7 government Exhibit 207. Have you seen that chart before? 7 the individual, for example, has medical bills -- for example,
8 A. Briefly. 8 some people have no medical bills during the course of a year,
9 Q. And would it assist you in explaining to the jury how the 9 others have an enormous amount. So that money is there. It's
10 union Benefit Funds are funded? 10 not based on the, you know, what the individual worked. Once
11 A. Sure, it would. 11 they're covered, for example, for medical the sky's the limit,
12 MS. ZORNBERG: The government offers Exhibit 207. 12 basically.
13 MR. GARDNER: As an aid, your Honor, no objection. 13 Q. What is the harm to the Funds when contractors fail to pay
14 THE COURT: As an aid. 14 in what they owe?
15 (Government's Exhibit 207 received in evidence) 15 MR. GARDNER: Objection, your Honor.
16 MS. ZORNBERG: Okay. Ms. Geier, could you please put 16 THE COURT: Rephrase the question.
17 Exhibit 207 up on the screen? 17 Q. Are there harms to the Fund when a contractor fails to pay
18 Q. So, Mr. GraBois, why don't you just walk us, walk the jury 18 in?
19 through how an employee, how an employer that's a Union 19 MR. GARDNER: Objection, your Honor.
20 contractor pays wages and benefits? 20 THE COURT: Overruled.
21 A. There is what's known as a Collective Bargaining Agreement21 A. Yes.
22 that's signed between the Union and a contractor, and there are 22 Q. What are those harms?
23 wages that are established and benefit amounts. So, for 23 A. Well, what happens is the Funds get depleted.
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example, when there is a union contractor, the contractor would Q. How often, if ever, are you concerned as Executive Director
2 make an hourly contribution both in wages and benefits. The 2 of the Funds, about the funding levels?
benefits would come in on behalf of the member and the wages A. You're always concerned about the funding levels.
3 would go directly to the member. 3 Q. Are the Benefit Funds self insured?
Q. Okay. So as illustrated on the chart, does the employer A. Yes.
4 pay the pages directly to the carpenter? 4 Q. What does that mean?
5 A. That's correct. 5 A. There's, for example, we have Empire Blue Cross that we
6 Q. And does the employer -- how does -- to whom does the 6 have, what's called preferred provider network. So what it
7 employer give the benefit contributions? 7 means is that you pay them to administer the health and welfare
8 A. That's paid in on behalf of the individual worker. 8 under Blue Cross. You pay them an administrative fee, but the
9 Q. Into the Funds? 9 money that you're paying, if somebody has a claim, comes from
10 A. Into the Funds, correct. 10 the funds.
11 Q. And then the Funds issues the benefits to the carpenter? 11 Q. Let's turn back now to the Board of Trustees of the Benefit
12 A. Correct. Well, let me just -- when you say issues the 12 Funds. How many Trustees between -- and let me direct your
13 benefits. The carpenter would not get the pension, obviously, 13 attention to the period of time between 2000 and August 2009 --
14 until they're ready to retire. 14 how many Trustees did the Benefit Funds have?
15 MS. ZORNBERG: All right, we can take that down, 15 A. 12.
16 Ms. Geier. 16 Q. And what is the role of a Trustee?
17 Q. Now you mentioned that the, that some of the benefit plans 17 A. The trustees are to set policy, and our job is to implement
18 we've been discussing are pooled accounts. 18 the policy that's set by the Board of Trustees.
19 A. Correct. 19 Q. Mr. GraBois, I'm now handing you what's been marked as
20 Q. Can you just briefly say what that means again? 20 government Exhibit 300. Do you recognize that document?
21 A. For example, if a contractor pays in a certain amount of 21 A. I do.
22 money, and if you have a contractor who doesn't pay in a 22 Q. What is it?
23 certain amount of money, take the pension, for example. Under 23 A. They're minutes from a Board of Trustees meeting that was
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Page 100 Page 102
held on April 10th, 2000. individual would have an opportunity to become co-chairman.
2 Q. And does the Board of Trustees of the Benefit Fund meet on 2 Q. And just, you mentioned the term "Management Trustee." Of
a regular basis? the 12 Trustees of the funds, can you explain what a Management
3 A. Pretty much so. 3 Trustee is?
Q. Are Trustee minutes routinely prepared in the course of A. Yeah. Management Trustees represent either associations or
4 those meetings? 4 individual companies. They're principals of companies.
5 A. Yes, they are. 5 Q. And of the 12 Trustees on the Funds, how many are
6 MS. ZORNBERG: The government offers -- 6 Management Trustees?
7 Q. And the document before you, the minutes before you, what's 7 A. Six.
8 the date on them? 8 Q. And are you familiar with what's called Union Trustees?
9 A. April 10th, 2000. 9 A. Yes.
10 Q. Were those minutes maintained, prepared and maintained by10 Q. What's that?
11 the Benefit Funds in the ordinary course of business? 11 A. The Union Trustees are individuals, few of them are
12 A. Yes. 12 officers in the Union and some are appointed by the head of the
13 MS. ZORNBERG: The government offers Exhibit 300. 13 Union.
14 MR. GARDNER: Again, your Honor, no objection. 14 Q. And so there are six Management Trustees and how many are
15 THE COURT: Admitted without objection. 15 Union Trustees?
16 (Government's Exhibit 300 received in evidence) 16 A. Six, during that time period.
17 Q. All right, why don't we -- 17 Q. Do the duties of Management Trustees and Union Trustees
18 MS. ZORNBERG: Ms. Geier, if we can put Exhibit 300 up 18 differ in any way?
19 on the screen, and why don't can we enlarge the top half 19 A. No, same duties.
20 portion to the bottom of the list of Trustees? All right. 20 MS. ZORNBERG: May I borrow the Court's stapler for
21 Q. So the title is "Minutes of the Meeting of the Board of 21 just a moment?
22 Trustees of the New York City District Council of Carpenters 22 THE COURT: Yes.
23 Pension Fund held April 10th, 2000." 23 Q. Mr. GraBois, I'm now handing you what's been marked as
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And then, Mr. GraBois, does the document list who the government Exhibit 201A for identification.
2 Trustees were as of April 10th, 2000? 2 (Pause)
A. Yes, it does. MS. ZORNBERG: Your Honor?
3 Q. Okay. And was Mr. Olivieri listed there as a Trustee? 3 THE COURT: Yes.
A. Yes, he is. MS. ZORNBERG: We just want to make sure that defense
4 Q. And let's turn, if we could, to page two of the document, 4 counsel has the exhibits. We've previously provided binders
5 and let's enlarge just Roman numeral three. Can you read what 5 with them, but he doesn't have them in the courtroom so we just
6 that says? 6 want a moment to make sure we can supply him with the
7 A. Yes. "Joseph Olivieri was appointed a Trustee to replace 7 documents.
8 Arthur Johansen on behalf of the Metropolitan New York Drywall 8 THE COURT: All right.
9 Contractors Association." 9 MR. GARDNER: We do have some, your Honor. I just
10 Q. Now, do you know, Mr. GraBois, where is the Metropolitan 10 don't know which we're doing at any particular time. So that
11 New York Drywall Contractors Association; is that the same 11 unless I know in advance, we'll have to be pulling them out
12 association that was -- that later became known as the Wall & 12 separately.
13 Ceiling Association? 13 MS. ZORNBERG: Your Honor, just to expedite things,
14 A. Yes, it is. 14 may we use the extra set of binders that we provided to the
15 MS. ZORNBERG: Okay. You can take that down. 15 Court so Mr. Gardner has them?
16 Q. Was Mr. Olivieri a Trustee of the Benefit Funds 16 MR. GARDNER: This one I have, we just --
17 continuously from his appointment in April 2000 until August of 17 MR. TUMULTY: We have them.
18 2009? 18 MR. GARDNER: I just don't know which one. If you
19 A. Yes. 19 want to give me a list of what you're doing next, I'll --
20 Q. Was he ever a chairman of the Benefit Funds? 20 MS. ZORNBERG: All right.
21 A. Co-chair, yes. 21 Q. Mr. GraBois, in front of you is what's been marked as
22 Q. How does that work? 22 government Exhibit 201A. Do you recognize that document?
23 A. The management trustees rotated once a year. Each 23 A. I do.
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Q. What is it? MS. ZORNBERG: Ms. Geier, let's highlight the first
2 A. It's the Pension Fund Agreement and Declaration of Trust. 2 sentence.
Q. And in broad terms, what is a Trust Agreement? Q. Can you read the first sentence there?
3 A. Trust Agreement lays out the duties and responsibilities of 3 A. Yes, I can. "The Board of Trustees aforementioned shall
administering that Fund, lays out duties and responsibilities consist of 12 persons, six of whom shall be designated by the
4 for the Trustees as well. 4 employer organizations, and the independent employers, as
5 Q. Did do Trust Agreements exist for each of the benefit plans 5 follows: One employer Trustee designated by the Building
6 we've been talking about? 6 Contractors Association, Incorporated, Inc., another employer
7 A. Yes. 7 Trustee designated by the Cement League, another employer
8 Q. And is the one in front of you, a trust agreement that 8 Trustee designated by the General Contractors Association."
9 existed for the pension plan? 9 Do you want me to continue reading?
10 A. Yes, it is. 10 Q. No, you don't have to. Let's turn to the -- so does it
11 Q. Are the trust agreements amended from time to time? 11 list all of those associations there?
12 A. From time to time they are, yes. 12 A. That's correct.
13 Q. Okay. Is government Exhibit 201A, the trust agreement that 13 Q. And let's turn now to the top of page ten where it picks
14 was in effect at the time Mr. Olivieri was appointed a Trustee? 14 up.
15 A. To the best of my recollection, yes. 15 MS. ZORNBERG: Can you enlarge just the very top two
16 MS. ZORNBERG: The government -- 16 paragraphs? Okay.
17 Q. And was this document maintained by the Benefit Funds in 17 Q. And then I just want to direct your attention -- it says
18 the ordinary course of business? 18 "The other six Union trustees shall be designated by the
19 A. Yes, it was. 19 District Council and shall serve at the pleasure of said
20 MS. ZORNBERG: The government offers Exhibit 201A. 20 District Council."
21 MR. GARDNER: Judge, I do object to this document. 21 Mr. GraBois, does this reflect the constitution of the
22 THE COURT: What's the objection? 22 six management trustees of the six union trustees that you
23 MR. GARDNER: Judge, my client's not familiar with it, 23 described earlier?
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Page 105 Page 107
and Mr. GraBois is saying he's not sure that was in effect at A. Yes, it does.
2 the time that my client was a Trustee. 2 Q. And can you read what the next paragraph says?
Q. Mr. GraBois, what is your basis for believing that this A. "The trustees, each for himself, accept their appointment
3 document was the trust agreement in effect in April 2000? 3 as Trustees and consent to act as Trustee hereunder, and
A. This was the only one that existed at that time period. declare and agree that they are named fiduciaries under the
4 THE COURT: Admitted. Objection noted. 4 Pension Plan and that they will receive and hold the Pension
5 (Government's Exhibit 201A received in evidence) 5 Fund as Trustees under and by virtue of the terms, conditions
6 MS. ZORNBERG: Okay. Ms. Geier, let's put up 6 and provisions of this Trust agreement for the uses, purposes
7 government Exhibit 201A. And if you could rotate, okay. So 7 purpose and trust and with the powers and duties herein set
8 can we enlarge the just the text in the middle? 8 forth and none other."
9 Q. And it says, "This is a agreement and Declaration of Trust 9 Q. Let's turn now to page two of the document and let's
10 entered into between the New York District Council United 10 enlarge the article three that says "Purposes". And I'll just
11 Brotherhood of Carpenters and Joiners." And then it lists a 11 read the very first part of that, of what it says.
12 number of associations. Do you see that, Mr. GraBois? 12 "The Fund shall be a trust fund and shall be used for
13 A. Yes, I do. 13 the exclusive purpose of providing benefits to participants and
14 Q. To be clear, were the benefit plans set up jointly by the 14 their beneficiaries as decided by the Trustees." And then it
15 Union and by the associations? 15 goes onto with some further verbiage.
16 A. Yes, they were. 16 Let's just look at a few more passages of this
17 Q. Can you explain what a contractor association is? 17 agreement.
18 A. Yeah. Individual contractors would belong to the 18 MS. ZORNBERG: Ms. Geier, let's turn to page three
19 association, and the association itself would represent those 19 and -- okay. Let's enlarge the top third of that document,
20 contractors that belonged to it, represented negotiations or if 20 sections one through four.
21 any problems arose. 21 Q. And let's -- section one, I'll just go through it quickly.
22 Q. Okay. Let's turn to page nine of the document and let's 22 "On or after July 1, 1960, contribution shall be in accordance
23 enlarge the, just the article ten at the very bottom. 23 with the amounts required to be paid in pursuance of the
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Page 108 Page 110
Collective Bargaining Agreement." to page four and enlarge the bottom portion starting with
2 Section two, Ms. GraBois could you read what section 2 article six, the section that's titled "powers and duties of
two says? the Trustees."
3 A. "The Trustees may compel and enforce the payment of the 3 Q. Can you read what the very, what the very top duty is
contributions in any manner which they may deem proper; and the that's listed in the Trust Agreement?
4 Trustees may make such additional rules and regulations to 4 A. Accept and receive all contribution and shall hold, invest,
5 facilitate and enforce the collection and payment thereof as 5 reinvest, manage and administer the same as part of the Pension
6 they may deem appropriate." 6 Fund for the uses, purposes and trusts herein provided."
7 Q. And in lay person language, what does that mean? 7 MS. ZORNBERG: All right, we can take that down,
8 A. The Trustees make the rules. 8 Ms. Geier.
9 Q. And -- okay. Do their duties include the collection of 9 Q. As an Executive Director, Mr. GraBois, you're not a Trustee
10 contributions? 10 yourself, correct?
11 A. Yes. 11 A. I am not.
12 Q. Let's look at section four. I just want to call your 12 Q. But as Executive Director, are you a fiduciary of the
13 attention to a particular sentence, "The failure of an employer 13 Benefit Funds as well?
14 to pay the contribution required hereunder within ten days 14 A. Yes, I am.
15 after the due date shall be a violation of the Collective 15 Q. What are your obligations as a fiduciary of the Benefit
16 Bargaining agreement. 16 Funds?
17 MS. ZORNBERG: And let's zoom out, Ms. Geier. And can17 A. That whatever I do in my position is for the benefit of a
18 we enlarge paragraphs five through seven. 18 the member.
19 Q. Can you read the first sentence of section five, Mr. 19 Q. What is your obligation if you have a conflict of interest?
20 GraBois? 20 A. To recuse myself.
21 A. "Each employer shall promptly furnish to the Trustees on 21 Q. And what is your obligation if you learn that a contractor
22 demand any and all wage records relating to his employees which 22 is defrauding the Benefit Funds?
23 the trustees shall require in writing." 23 A. To report it.
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Q. What's the purpose of that, of requiring contractors to Q. Mr. GraBois, I'm now handing you what's been marked as
2 furnish records? 2 government exhibits 52 and 53 for identification. Starting
A. That pertains to audits that are done. with exhibit 52, do you recognize who that is in that photo?
3 Q. Okay. And finally, can you read -- 3 A. I do.
MS. ZORNBERG: And, Ms. Geier, can you highlight the Q. Who is it?
4 top eight lines of section seven? 4 A. Michael Forde.
5 Q. Maybe I'll just, instead of having you read it out loud -- 5 Q. And do you recognize the individual in exhibit 53?
6 MS. ZORNBERG: Can the jurors see that? Maybe just 6 A. I do.
7 take a moment to read that. 7 Q. Who is that?
8 Q. In particular, I want to call attention to the beginning 8 A. John Greaney.
9 where it says, Since experience has shown that the welfare and 9 MS. ZORNBERG: The government offers exhibits 52 and
10 pension funds suffer serious damage and loss in the form of 10 53.
11 wasted time, effort and expense due to the failure of 11 MR. GARDNER: No objection, your Honor.
12 contributing employers promptly to report and/or pay the 12 THE COURT: Admitted without objection.
13 contributions due to such funds with the consequent necessity 13 (Government's Exhibits 52 and 53 received in evidence)
14 for the making of demands, reports or payments and audit of 14 MS. ZORNBERG: Ms. Geier, let's put up exhibit 52.
15 books. Then it goes on to say, the trustees are hereby 15 Q. You said this is Michael Forde?
16 empowered and authorized to assess and collect, in addition to 16 A. Yes, I did.
17 the principal amount of the contributions determined to be due, 17 Q. He was the head of the Carpenters' Union?
18 the liquidated damages. 18 A. Yes, he was.
19 Can you just put into plain words what that means? 19 Q. And I direct your attention specifically to the period of
20 A. What it means is that the Trustees set policy, and in terms 20 2000 to 2009. Was Mr. Forde the head of the Carpenter Union
21 of how to go about collecting monies that are due and owing to 21 during that period?
22 the Benefit Funds from contractors who have not paid on time. 22 A. Yes, he was.
23 MS. ZORNBERG: Okay. And, finally, if you could turn 23 Q. Did he also hold a position with the District Council
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Page 112 Page 114
Benefit Funds? A. Yes.
2 A. Yes, he did. 2 Q. Let me direct --
Q. What was his position with the benefit fund? MS. ZORNBERG: Let's turn to the last page of the
3 A. Co-chairman. 3 document and if we can enlarge the bottom portion.
Q. Was he also a Trustee? Q. Can you read who, as best you can, who signed for On-Par
4 A. Yes. 4 Construction?
5 Q. And so was he one of the head Trustees? 5 A. Jim Murray.
6 A. Co-chairman of the Trustees, correct. 6 Q. And what was the date listed there?
7 MS. ZORNBERG: And let's put up government exhibit 53, 7 A. 6-10-96.
8 the photo of John Greaney. 8 Q. Okay. And let's turn now to government Exhibit 251,
9 Q. Was Mr. Greaney a Trustee of the Benefit Funds? 9 another Collective Bargaining Agreement between the Union and
10 A. Yes, he was. 10 On-Par?
11 Q. Do you know what other positions, if any, he held at the 11 A. That's correct.
12 Union? 12 Q. And let's just turn to the last page of --
13 A. During a period of time, and I'm not certain of the dates, 13 MS. ZORNBERG: Before we turn to the last page, let's
14 I know John Greaney was the president of Local 608. 14 enlarge the period of time this agreement covered, July 1, 1996
15 Q. Okay. I'm now going to show you -- 15 through June of 2001.
16 MS. ZORNBERG: You can take that down. Excuse me, 16 Q. And who signed this agreement on behalf of On-Par?
17 your Honor. I'm going to borrow this one more time. 17 A. Jim Murray.
18 Q. Mr. GraBois, I'm now handing you what's been marked as 18 MS. ZORNBERG: Let's just put the last page up,
19 government Exhibit 250 and 251. Do you recognize what those 19 Ms. Geier.
20 documents are? 20 Q. And what's the there of that signature?
21 A. I do. 21 A. December 3rd, 1996, 12-3-96.
22 Q. What are they? 22 Q. Mr. GraBois, I'm now handing you what's been marked as
23 A. Collective Bargaining Agreements. 23 government Exhibit 253 for identification. Do you recognize
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Q. And are the Collective Bargaining Agreements between the that document?
2 Union and a particular contractor? 2 A. I do.
A. Yes, they are. Q. What is it?
3 Q. What contractor? 3 A. It's a letter from Joe Olivieri to Russ Shaw.
A. On-Par Construction, Inc. Q. Was this letter received and maintained by the Benefit
4 Q. Were these documents maintained in the ordinary course of 4 Funds in the ordinary course of business?
5 business by the Benefit Funds? 5 A. Yes, it was.
6 A. Yes, they were. 6 MS. ZORNBERG: The government offers Exhibit 253.
7 MS. ZORNBERG: The government offers Exhibit 250 and 7 MR. GARDNER: No objection, your Honor.
8 251. 8 THE COURT: Admitted without objection.
9 MR. GARDNER: Only a relevancy objection, only a 9 (Government's Exhibit 253 received in evidence)
10 relevancy objection, not to the foundation, your Honor. 10 MS. ZORNBERG: All right, let's put government Exhibit
11 THE COURT: Overruled. 11 253 up on the screen, and let's try to -- let's enlarge the
12 (Government's Exhibits 250 and 251 received in 12 date through the signature line.
13 evidence) 13 Q. I'll just read it, it's very short.
14 MS. ZORNBERG: Ms. Geier, let's put up Exhibit 250. 14 "September 20th 2001, Dear Mr. Shaw, please be advised
15 If we can enlarge the, let's see, if we can enlarge the text. 15 that On-Par Contracting, 230 South Fifth Avenue, Mount Vernon
16 Q. So at the top it says, Independent Building Construction 16 New York, 10550, Jim Murray, President, lists a telephone
17 Agreement, On-Par construction, Inc., lists an address, and the 17 number, is a member of the association of Wall Ceiling and
18 District Council of New York. 18 Carpentry Industries of New York, Inc. We have a designation
19 MS. ZORNBERG: And let's zoom out, Ms. Geier, and just 19 of bargaining form on file. Very truly yours, Joseph Olivieri.
20 enlarge the period at the bottom, July 1, 1993 through June 30, 20 Are letters like this received routinely by the
21 1996. 21 Benefit Funds?
22 Q. Mr. GraBois, was this a, this collective bargaining 22 A. Yes, they are.
23 agreement signed by a person on behalf of On-Par Construction? 23 Q. What is their significance?
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A. That the individual contractor became part of an jurisdiction of the District Council, which is spelled out
2 Association. 2 here.
Q. And in this case, what was Mr. Olivieri advising the Funds? (Continued on next page)
3 A. That On-Par became part of Wall & Ceiling Association. 3
Q. Does that mean that from September 20, 2001 going forward,
4 On-Par would be covered by the Association's Collective 4
5 Bargaining Agreement? 5
6 A. That's correct. 6
7 MS. ZORNBERG: All right, we can take that down. 7
8 Q. I'm now handing you what's been marked as government 8
9 Exhibit 252. Do you recognize what that is? 9
10 A. Yes. 10
11 Q. What is it? 11
12 A. It's the Collective Bargaining Agreement between the 12
13 Association of Wall Ceiling and Carpentry Industries of New 13
14 York, Incorporated and the District Council of Carpenters. 14
15 Q. Was this maintained by the Benefit Funds in the ordinary 15
16 course of business? 16
17 A. Yes, it was. 17
18 MS. ZORNBERG: The government offers Exhibit 252 into 18
19 evidence. 19
20 MR. GARDNER: I just want to take look at my copy for 20
21 one second. 21
22 (Pause) 22
23 MR. GARDNER: No objection, your Honor. 23
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1 0AKZOLI1 GraBois - direct 1 0akdoli2 Grabois - direct
THE COURT: Admitted without objection. Q. OK. Under the Collective Bargaining Agreement, was a
2 (Government's Exhibit 252 received in evidence) 2 contractor free to do nonunion work in New York City?
MS. ZORNBERG: Ms. Geier, could you please put up the A. No, they were not.
3 first page of Exhibit 252? 3 Q. All right. Let's turn now to page 27 of the Collective
Q. What is the period, Mr. GraBois, that this Collective Bargaining Agreement, and let's just enlarge the portion that
4 Bargaining agreement covered? 4 says, "Wages, Section 1."
5 A. July 1st, 2001 through June 30th, 2006. 5 All right: "The employer agrees that it will hire all
6 Q. And to be clear, is this the agreement that covered On-Par 6 employees covered by this agreement for wages and hours not
7 during that period of time? 7 less than those specified herein."
8 A. Yes. 8 And now let's turn to page 38 of the Agreement, the
9 Q. Let's look at a few provisions of the agreement. 9 provision called "Fringe Benefit Funds."
10 MS. ZORNBERG: First, Ms. Geier, let's turn to page 10 Could we enlarge the Section 1? This paragraph.
11 21. Okay. And could you enlarge the, just the top quarter of 11 Mr. Grabois, could you read the first portion of that
12 that page under article nine that says geographical 12 paragraph?
13 jurisdiction. 13 A. "Every employer covered by this Agreement shall make
14 Q. So, Mr. GraBois, let me direct your attention to this 14 contributions for each hour worked of all employees covered by
15 section of the Collective Bargaining Agreement which says "The 15 this Agreement and employed by said employer within the
16 Agreement shall cover work performed by carpenter employees 16 territory of this Agreement in the amounts hereinafter
17 within the territorial jurisdiction of the District Council of 17 specified to the Welfare Fund, Pension Fund, Vacation Fund,
18 New York City and vicinity." 18 Annuity Fund, United Brotherhood of Carpenters and Joiners of
19 MS. ZORNBERG: Ms. Geier, could you zoom out, and just19 America Fund, and Apprenticeship, Journeymen Retraining,
20 include the next few lines where it says, all of the five 20 Education, and Industry Fund, Supplemental Funds of the
21 Boroughs of the City of New York, and then it goes on. 21 District Council, and New York City and vicinity Carpenters
22 Q. What does that mean? 22 Labor Management Fund.
23 A. That the agreement covers work performed within the 23 Q. Does that just list out all the formal names of all the
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1 0akdoli2 Grabois - direct 1 0akdoli2 Grabois - direct
different funds? Q. What are some of the different reasons that a contractor
2 A. Yes, it does. 2 could be delinquent?
Q. Is this the portion of the Agreement that reflects the A. Primarily two reasons, economics or fraud.
3 contractors' obligation to pay benefit contributions for each 3 Q. And let's take each one of those.
hour worked by a carpenter? When you say a contractor could be delinquent for
4 A. Yes. 4 economics, what do you mean by that?
5 MS. ZORNBERG: Now, let's turn to page 30 of the 5 A. Well, the economy might be bad. It is the situation we are
6 Agreement. And can you enlarge that section that's already 6 in right now. Or, for example, a lot of contractors,
7 highlighted. 7 subcontractors, are not collecting money from the general
8 Q. So, Mr. Grabois, let me direct your attention to this 8 contractor because the general contractor hasn't gotten paid
9 Section 8, which says: "Wage rates and fringe benefit 9 and they can't afford to pay in the benefits, or, for example,
10 contribution within the bargaining unit shall be determined 10 they just don't have the cash on hand to make the payments.
11 and/or reallocate by union at its sole discretion." 11 Q. And you said that in your experience there have also been
12 And then it lists, "Total Wages & Fringe Benefits for 12 delinquencies resulting from fraud, is that right?
13 Journeyman Carpenter." And it lists "Total Package Per Hour" 13 A. Yes, that's correct.
14 with a figure for dates. 14 Q. What, if anything, can the Benefit Funds do when it
15 Can you explain, please, what the total package 15 believes that a contractor is defrauding the Funds
16 reflects? 16 intentionally?
17 A. Salary and benefits. 17 A. During the period of time, we referred it to, for example,
18 Q. So between July 2001 and July 2005, does this Agreement 18 what was known as the anticorruption committee, and the
19 spell out the hourly amount that On Par was required to pay its 19 anticorruption committee would make an evaluation and then
20 carpenters? 20 refer it out for what was known as a forensic audit.
21 A. Yes, it does. 21 Q. What is a forensic audit?
22 Q. And when you say "total package," that includes the wages 22 A. Well, a regular audit is what is known as a payroll audit.
23 and the benefits together? 23 An outside audit firm, which consist of CPAs, would go into a
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A. Yes. contractor, which is also part of the Collective Bargaining
2 Q. So, for example, looking at July 1, 2001, where it says 2 Agreement that they have the right to do that, and look at the
total package of $57.48, what does that mean? books and records, the payroll, compare, make sure that the
3 A. That would include -- the $57.48 per hour per man, that 3 individuals who were doing what's known as covered work,
would include the salary and benefits. carpentry work, that they were being paid in for.
4 Q. Does the Agreement provide for increases over time? 4 Q. And how does that routine audit differ from a forensic
5 A. Yes, it does. 5 audit?
6 Q. What was the total package number as of January 1, 2002? 6 A. A forensic audit, what would happen is experts who have the
7 A. $58.89. 7 experience in looking for fraud would go in and do a more
8 Q. And you don't have to read each one, but by July 1, 2005, 8 in-depth audit.
9 what was the total package of compensation -- hourly 9 Q. Now, if a contractor is delinquent to the Funds, what
10 compensation for a union contractor? 10 options does the Benefit Funds have for pursuing that
11 A. $70.87. 11 delinquency?
12 Q. And do you know roughly how -- just focusing on this 12 A. Well, normal course of business, if someone is delinquent
13 figure, the $70.87 figure, just to be clear, that was the 13 for economic reasons, they can enter into what's known as a
14 hourly rate for a union carpenter? 14 payment plan.
15 A. Correct. 15 Q. OK. Does the Benefit Funds -- can the Benefit Funds do
16 Q. Roughly, do you know how that number broke down between16 anything -- if there is no payment plan or if there is fraud or
17 wages and benefits? 17 if there are other things going on, can they do anything to
18 A. Probably close to $40 in salary and maybe $30 and change in18 shut down the contractor?
19 benefits, give or take a few dollars and cents. 19 A. The Benefit Funds itself doesn't have the authority to shut
20 MS. ZORNBERG: All right. We can take that down. 20 down the contractor but we would report it to the union that
21 Q. Mr. Grabois, how common is it for contractors to be 21 action is required, and the union would have the authority to
22 delinquent in their contributions to the Benefit Funds? 22 shut down a contractor.
23 A. It happens. 23 Q. Has that happened from time to time?
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A. Many times. Q. Mr. Grabois, I think it is actually more efficient, why
2 Q. Did there come a time when you became aware that On Par, 2 don't you tell us, what were the basic terms of this payment
the contractor we have been talking about, was defrauding the plan agreement?
3 Benefit Funds? 3 A. The original terms were that Mr. Murray negotiated that he
A. Yes, there did. would put down 750,000, to be paid 200,000 immediately and
4 Q. Approximately what timeframe? 4 50,000 a month towards an audit that was going to be done. He
5 A. Probably sometime in 2004, maybe 2005, but thereabouts. 5 indicated that he knew he owed a lot of money, not being sure
6 Q. Did On Par's delinquency to the Funds become an 6 of the exact amount, and he was going to pay this, which
7 anticorruption matter? 7 enabled him by signing a payment plan to remain open.
8 A. It did. 8 Q. And so this payment plan, by agreeing to pay $750,000 up
9 Q. Can you describe how? 9 front, did that resolve the delinquency that On Par had to the
10 A. Well, it was reported to the Funds that there was 10 Funds?
11 allegations of corruption, of fraud, at which point it was 11 A. No, it did not.
12 reported to the anticorruption committee and the Funds no 12 Q. You indicated that an audit was still to be done?
13 longer was involved with it at that point. 13 A. Correct.
14 Q. I'm handing you now what's been marked as Government 14 Q. What kind of audit?
15 Exhibit 262. 15 A. Forensic audit.
16 Mr. Grabois, do you recognize what that is? 16 Q. OK. So as of July 28, 2005, was this during the period
17 A. I do. 17 when On Par had come on to the screen as an anticorruption
18 Q. What is it? 18 matter?
19 A. It is a payment plan agreement between On Par and the 19 A. That's correct.
20 Funds. 20 Q. And you said that On Par was able to stay open. What do
21 Q. Was this agreement signed by you? 21 you mean by that?
22 Directing your attention to page 8 of the document. 22 A. They were able to continue working.
23 A. Yes. Yes, it was. 23 Q. They weren't shut down?
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Q. And what was the date of the Agreement? A. They were not.
2 A. 28th day of July 2005. 2 Q. Did On Par pay the $750,000?
Q. Was this Agreement maintained by the Benefit Funds in the A. Actually, they paid the 200,000 immediately, and then
3 ordinary course of business? 3 instead of 50,000 a month they paid 50,000 a week.
A. Yes, it was. Q. Was a forensic audit in fact conducted?
4 MS. ZORNBERG: The government offers Exhibit 262. 4 A. Yes, it was.
5 MR. GARDNER: No objection, your Honor. 5 Q. Who conducted the forensic audit?
6 THE COURT: Admitted without objection. 6 A. Greg Polvere.
7 (Government's Exhibit 262 received in evidence) 7 Q. What, if anything, stood out to you, Mr. Grabois, about
8 MS. ZORNBERG: Ms. Geier, could you display Exhibit 8 this payment plan?
9 262 on the screen? 9 A. The amount of money involved.
10 First, let's just enlarge the top two sentences, where 10 Q. Now, did you have the authority -- let's turn actually to
11 it says "Payment Plan Agreement." 11 page 8, to show the signature pages.
12 Q. What was the date that this payment plan agreement was 12 Do you see your signature on this page?
13 executed? 13 A. I do.
14 A. The 28th day of July 2005. 14 Q. Where?
15 MS. ZORNBERG: And, Ms. Geier, can you now enlarge the 15 A. Under the date, on behalf of the Board of Trustees.
16 second paragraph, which I'll read: 16 MS. ZORNBERG: OK. And if you can turn to the next
17 "Whereas, the parties desire to resolve the funds' 17 page, Ms. Geier, and enlarge the top half.
18 claim for employee fringe benefits for delinquent contributions 18 Q. Is there a signature also from James Murray, President of
19 due the Funds for the period from October 1, 2003, through 19 On Par?
20 July 25, 2005, to wit, $750,000 less down payment of $200,000, 20 A. Yes, there is.
21 for a total of $550,000, by having payments made in eleven 21 Q. I would like to go back just for a moment.
22 installments." 22 You said that this agreement stood out to you because
23 It goes on. 23 of the amount. What did you mean by that?
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A. The amount of money that the contractor put down. A. That in addition to binding the company, he personally
2 Q. What was noteworthy about it? 2 guarantees payment of what he owes.
A. A lot of money. MS. ZORNBERG: Ms. Geier, let's now enlarge the bottom
3 Q. Was that more than you typically see in signing off on 3 portion of that document.
payment plans? Q. You stated a moment ago, Mr. Grabois, that you could not
4 MR. GARDNER: Objection, your Honor. 4 approve that payment plan yourself, you had to seek -- you had
5 THE COURT: Sustained. 5 to seek approval by the trustees.
6 MS. ZORNBERG: May I ask, is it an objection as to 6 A. Correct.
7 form? May I rephrase? 7 Q. Explain to us -- just tell us what approval you needed and
8 THE COURT: You may rephrase it. 8 who you obtained the approval from.
9 Q. OK. In comparison with other payment plans that you've 9 A. The way it operated, we needed one union trustee to approve
10 seen as executive director of the Benefit Funds, how did the 10 it and one management trustee. In this particular case, Steve
11 amount of money compare? 11 Kasarda spoke to Pete Thomassen, whose title at that time was
12 A. This was much larger. 12 President of the District Council, which was the second in
13 Q. Did you have the authority to approve this payment plan 13 command, and Steve Kasarda is an attorney who handles
14 yourself? 14 delinquencies in collections employed by the Funds.
15 A. I did not. 15 I, according to this, spoke to Joe Olivieri over the
16 Q. Who had to approve it? 16 telephone, and it appears that Steve Kasarda spoke to Pete
17 A. At that time, the way the procedure was it had to be one 17 Thomassen over the telephone and each one of us obtained
18 union trustee and one management trustee. 18 approval.
19 Q. I'm now handing you what's been marked for identification 19 Q. Let me just hand you the pointer, if I could, and ask you
20 as Government Exhibit 255. 20 to, just with the pointer, point out which handwriting on this
21 Mr. Grabois, do you recognize that document? 21 document is yours.
22 A. I do. 22 A. Is it on?
23 Q. What is it? 23 Q. There is a button that you press in the middle.
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A. It's a request for payment plan. A. Got it. OK.
2 Q. And was this -- is your own personal handwriting on that 2 (Indicating). That's my handwriting.
document, as well? Q. Can you just read what you wrote there?
3 A. Yes, it is. 3 A. Yes.
Q. And was this document maintained by the Benefit Funds in "Joe Olivieri, approve via telecon," telephone
4 the ordinary course of business? 4 conversation, "July 28th, '05," and my signature.
5 A. Yes, it was. 5 Q. Did you personally speak with Mr. Olivieri?
6 MS. ZORNBERG: The government offers Exhibit 255. 6 A. I did.
7 MR. GARDNER: No objection, your Honor. 7 Q. Did he give his approval to the On Par payment plan?
8 THE COURT: Admitted without objection. 8 A. Yes, he did.
9 (Government's Exhibit 255 received in evidence) 9 Q. Prior to giving his approval, did he identify any conflict
10 MS. ZORNBERG: All right. Ms. Geier, would you put 10 of interest he had?
11 Exhibit 255 up on the screen. And let's just enlarge the top 11 A. Not that I recall.
12 portion of this first. 12 MS. ZORNBERG: I'm sorry, your Honor. I am just
13 Q. Can you just tell us what this document is? 13 trying to get defense counsel set up.
14 A. It is the request for payment plan. 14 (Pause)
15 Q. Was it in -- in connection with the On Par payment plan we 15 Q. Mr. Grabois, I am now handing you four documents marked for
16 just looked at? 16 identification as government's 302 through 305.
17 A. Yes, it is. 17 Do you recognize what these are?
18 Q. And under "Total Amount Due," what does it say? 18 A. Yeah. Minutes from trustees' meetings.
19 A. 750,000. 19 Q. Were these minutes prepared and maintained by Benefit Funds
20 Q. And does it lay out the payment terms? 20 in the ordinary course of business?
21 A. Yes, it does. 21 A. Yes, they were.
22 Q. Now, it also indicates "Personal Guarantor, James Murray." 22 MS. ZORNBERG: The government offers into evidence
23 What does that mean? 23 Exhibits 302 through 305 inclusive.
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MR. GARDNER: May I have just a moment to look at Q. Joseph Olivieri, Stuart Grabois and others?
2 them? 2 A. Yes.
THE COURT: Yes. MS. ZORNBERG: Now, Ms. Geier, could you zoom out,
3 (Pause) 3 please?
MR. GARDNER: No objection, your Honor. And can you enlarge Roman Numeral 1, where it says "On
4 THE COURT: Admitted without objection. 4 Par Litigation."
5 (Government's Exhibits 302 through 305 received in 5 Q. Mr. Grabois, could you read what that says?
6 evidence) 6 A. "The trustees discussed a settlement offer from On Par.
7 MS. ZORNBERG: Let's first put up on the screen, 7 The trustees agreed to table consideration until co-counsel
8 Ms. Geier, Exhibit 302. 8 advised that the proposal was in compliance with ERISA's
9 Q. Mr. Grabois, what is the date of these trustee minutes? 9 settlement requirements. Joseph Olivieri abstained from the
10 A. November 10, 2005. 10 discussion because the company is a member of the Wall &
11 Q. Let's just enlarge the individuals in attendance, the list 11 Ceiling Association."
12 of names. 12 Q. Now, I just want to focus you. Where it says "Joseph
13 Mr. Grabois, were you in attendance -- 13 Olivieri abstained because the company is a member of the Wall
14 A. I was. 14 & Ceiling Association," had Mr. Olivieri had a practice of
15 Q. -- at this meeting? 15 abstaining from discussion with the Wall & Ceiling members?
16 A. Yes, I was. 16 A. Not that I recall.
17 Q. Was Mr. Olivieri in attendance as well? 17 Q. And at this meeting on May 20, 2006, did Mr. Olivieri cite
18 A. Yes. 18 any personal conflict of interest?
19 Q. I would like to direct your attention to the top of page 4 19 A. Not that I recall.
20 of this document. And let's enlarge just that first paragraph. 20 MS. ZORNBERG: Let's put up Government Exhibit 304.
21 Can you read that, Mr. Grabois? 21 And these are the trustee minutes for October 19,
22 A. "Mr. O'Dwyer notified the board that the U.S. government 22 2006.
23 has subpoenaed the funds' records with respect to four 23 Can we enlarge the list of attendees?
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contracting companies: Tri-Built Construction, Silo I will just point out it lists Joseph Olivieri
2 Construction Corporation, and On Par and Commercial Drywall, 2 attending; it lists Stuart Grabois in attendance.
Inc. Of these, only On Par has begun payment in weekly Q. Mr. Grabois, I would like to direct your attention now to
3 installments of $50,000, which has currently accumulated to 3 page 4 of the document.
$750,000." And let's enlarge the paragraph that I am indicating.
4 Q. Now, who is Mr. O'Dwyer? 4 Could you please read that aloud?
5 A. Brian O'Dwyer was co-counsel to the Benefit Funds. 5 A. "The trustees discussed the funds' ability to penalize
6 Q. He was a lawyer for the Funds? 6 those caught taking cash on the job. Options including
7 A. Yes. 7 suspension of health benefits and forfeiture of paid vacation
8 Q. Do you recall the Funds receiving subpoenas for On Par and 8 allowances were discussed. Upon motion duly made, seconded,
9 for Commercial Drywall in November of 2005? 9 and unanimously adopted, the trustees approved the
10 A. Yes. 10 implementation of union trial procedure whereby an employee
11 Q. What kind of subpoenas were they? 11 caught stealing fund money would be referred to the Funds to
12 A. Grand jury subpoenas. 12 decide whether to revoke his/her medical benefits for up to six
13 Q. And Mr. Olivieri was present when that was discussed? 13 months. The trustees directed co-counsel to draft a resolution
14 A. The service of the subpoenas? 14 adopting the union trial procedure and, further, to draft the
15 MR. GARDNER: Objection, your Honor. 15 language of a "Bad Boy Clause" which provides for penalties for
16 THE COURT: Sustained. 16 prohibited employee conduct for trustee approval at the next
17 MS. ZORNBERG: OK. We'll move on. 17 board meeting."
18 Let's now put up Government Exhibit 303. And let's 18 Q. Can you explain what this bad boy clause was about?
19 enlarge the top -- no, first the date. 19 A. Members of the union that were working for cash and not
20 Q. What is the date of these minutes? 20 taking benefits were going to be punished.
21 A. May 23, 2006. 21 Q. And when you say members who were caught taking cash, are
22 MS. ZORNBERG: All right. And, Ms. Geier, can we 22 you referring to union carpenters?
23 focus in on the individuals in attendance that were listed. 23 A. I am.
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Q. So was the bad boy clause intended to apply to the MS. ZORNBERG: No further questions, your Honor.
2 rank-and-file carpenters on a job site? 2 THE COURT: OK. Mr. Gardner.
A. That is correct. MR. GARDNER: Your Honor, I don't know if this is a
3 Q. If they got the stiffest penalty, what was the stiffest 3 good time to break, but if not, I would ask for a five-minute
penalty of what could happen to them that was proposed? adjournment or two minutes just to use the men's room.
4 A. They could have lost their medical coverage for up to six 4 THE COURT: How long is your cross, do you think?
5 months, according to this. 5 MR. GARDNER: About maybe a half hour.
6 Q. Was that penalty provision -- well, it says it was voted 6 THE COURT: Why don't we take the morning break at
7 for and unanimously adopted by the trustees, is that right? 7 this point. It's roughly 20 minutes to 1. We will return in
8 A. Yes. 8 one hour.
9 Q. And was Mr. Olivieri one of the individuals who voted for 9 (Luncheon recess)
10 it? 10
11 A. To the best of my recollection, yes. 11
12 Q. Did Mr. Olivieri disclose whether he had taken anything 12
13 from a contractor before he voted for this? 13
14 MR. GARDNER: Objection, your Honor. 14
15 THE COURT: Sustained. 15
16 Rephrase the question. 16
17 MS. ZORNBERG: That's all right. I will move on, your 17
18 Honor. 18
19 Let's put up now Government Exhibit 305. 19
20 Q. And these are the minutes for 2007 now, June 19 through 20
21 June 21, 2007. 21
22 By the way, why does it give a range of dates for the 22
23 meeting? 23
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A. We had a three-day conference in Princeton, New Jersey. AFTERNOON SESSION
2 MS. ZORNBERG: OK. Let's, Ms. Geier, let's enlarge 2 2:07 p.m.
the attendees. (Jury not present)
3 So Joseph Olivieri was there, Stuart Grabois was there 3 THE COURT: All right. Thank you. Be seated.
and others. I apologize for the delay. I had to deal with an
4 And I would like to direct your attention now to page 4 emergency matter unexpected.
5 2 of these minutes. 5 Two things.
6 Let's enlarge the section under "Report of 6 One, two of the jurors have asked to approach with
7 Co-counsel." Just the first three paragraphs. There you go. 7 some questions or issue they may have. I don't know the nature
8 Could we highlight the middle one. 8 of the issues, so I will ask each of them to come forward
9 Q. Can you read that aloud, Mr. Grabois? 9 individually and talk to us at the sidebar to see what it is
10 A. "With respect to the On Par litigation, Mr. O'Dwyer's firm 10 that may be of concern.
11 is seeking to recover approximately 12 to $14-and-a-half 11 And, second, the Court has received and reviewed the
12 million. Mr. O'Dwyer also discussed the Tri-Built litigation." 12 letter dated October 19, 2010, from the government regarding
13 Q. Focusing on the On Par litigation, by this point in time, 13 Mr. Torrance's testimony, and asking for limiting instructions,
14 in 2007, had the Benefit Funds sued On Par? 14 if necessary, depending upon how the cross-examination goes.
15 A. Yes. 15 Mr. Gardner, have you received a copy of this letter?
16 Q. For what? 16 MR. GARDNER: I did, your Honor. I was given it this
17 A. Fraud. 17 morning, although I think it was e-mailed last night. I just
18 Q. And how much was the Benefit Funds seeking to recover at 18 left my office by then.
19 that time? 19 I do object, your Honor.
20 A. Between 12 to $14-and-a-half million. 20 THE COURT: This is, again, not one of those issues
21 MS. ZORNBERG: You can take that down. 21 that we can address preemptively, because it pertains to
22 Just a moment, your Honor. 22 something that may or may not occur or may occur in a way in
23 (Pause) 23 which it may not present a problem. So unless the government
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has anything else to say on this? your ability to be a fair juror. And whatever contact or
2 MR. LANPHER: Your Honor, mainly we just wanted to 2 whatever you may have, as long as you can in good conscience
highlight the issue for the Court in anticipation of what we say it is not going to affect your ability to be a fair and
3 expect may be coming from the cross-examination. 3 impartial juror, then it should not be a problem.
THE COURT: All right. Thank you. JUROR NO. 1: I feel that it would not, but I needed
4 I will ask the clerk to bring in one at a time the two 4 to bring that up because it only occurred to me this morning
5 jurors who indicated they have some question, and, counsel, 5 that there may have been times when I've seen people but I
6 please approach. We will take it up at the sidebar. 6 don't know their names.
7 MR. GARDNER: Should we go up there, your Honor? 7 THE COURT: Sure. I appreciate that. Thank you.
8 THE COURT: Yes. 8 JUROR NO. 1: All right. Thank you.
9 (At the sidebar with Juror No. 1) 9 (Juror No. 1 not present)
10 THE COURT: This is Ms. Banner? 10 (Juror 14 was present at the sidebar)
11 JUROR NO. 1: Yes. Hi. 11 THE COURT: Ms. Schnur.
12 THE COURT: Yes. 12 JUROR NO. 14: Your Honor, it did not come to light
13 JUROR NO. 1: I had mentioned to the clerk that 13 until the opening statements were given yesterday that I and my
14 because of what I do, I am often attending social functions 14 husband were both involved in a state civil case but it was
15 where I'm just there for a benefit or I have given my services 15 settled before it went to court. The both of us had been
16 as a curator to take people through art museums on tours and 16 deposed.
17 whatnot. So I often attend these functions both in New York 17 And I just wanted you to know that.
18 and in Princeton and throughout Westchester. 18 THE COURT: OK. What was the nature of the case?
19 And I don't know but there are many people who 19 JUROR NO. 14: My husband was suing his ex-partner for
20 frequent these things. I live in Pelham. It is between Mount 20 his half of the debts that my husband had to pay.
21 Vernon and the city. A lot of these things are not -- the 21 THE COURT: All right. Well, the controlling
22 construction company, I may have driven by. But it's in Mount 22 question, as you recall I asked as to all of those, is whether
23 Vernon; it is in the adjacent town. 23 there is anything about that circumstance that would affect
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I don't have any personal knowledge. I don't have any your ability to be a fair and impartial juror in the case
2 personal knowledge of any of the names that you've listed. But 2 before us?
it may come up that one of the people who walks in as a JUROR NO. 14: No. But I did want to bring it to
3 witness, or whatever, I may have been at a function with them. 3 light that I had gone through a deposition.
And I bring this up because Princeton is a very small THE COURT: Thank you very much. I appreciate that.
4 place. 4 (Juror No. 14 not present)
5 THE COURT: Sure. 5 (Continued on next page)
6 JUROR NO. 1: And I've attended a number of functions 6
7 there. 7
8 THE COURT: That is understandable and I appreciate 8
9 your calling it to our attention. I don't think it is unusual. 9
10 It may be that I may have been in the subway with one of them, 10
11 too. 11
12 JUROR NO. 1: Of course. There are also times when I 12
13 have donated tours and people have bid, and I mentioned to the 13
14 clerk this morning that there is a person whose name I don't 14
15 know and he contacted me about a tour that he had won on one of 15
16 these benefits. I haven't met the man but if he were to appear 16
17 in the courtroom, then I would know him. 17
18 THE COURT: All right. Well, again, we'll deal with 18
19 that if it occurs. 19
20 JUROR NO. 1: If it comes up. 20
21 THE COURT: And sometimes the question is not that you 21
22 may have known him or seen him at some point. The question is 22
23 whether you have any relationship, connection that might affect 23
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1 0akdoli2 Grabois - direct 1 0akdoli2 Grabois - cross
(In open court; jury present) Funds, does he?
2 THE COURT: Please rise. 2 A. Individual in terms of the management trustees, but not in
Thank you. Be seated. terms of the overall amount.
3 Let me apologize to the jury for the delay. It was 3 Q. Right. So the vote is actually a one and a one situation;
not anything that could be avoided. These unavoidable delays all six management trustees vote together and all six union
4 occur from time to time in these trials, and we will make every 4 trustees vote together, right?
5 effort to keep them to a minimum. So this one is on our dime. 5 A. Well, when you say "vote together," can you explain what
6 All right. Mr. Gardner. 6 you are asking?
7 MR. GARDNER: Thank you, Judge. 7 Q. Well, if something comes up for a vote before the board --
8 STUART GRABOIS, 8 A. Mm-hmm, yes.
9 Resumed, and testified further as follows: 9 Q. -- what you said -- why don't you just explain what a block
10 CROSS-EXAMINATION 10 vote means.
11 BY MR. GARDNER: 11 A. A block vote, for example, let's take the management
12 Q. Good afternoon, Mr. Grabois. 12 trustees. If they caucus and six of them go into a room and
13 A. Good afternoon, Mr. Gardner. 13 four vote one way and two vote the other way, then they would
14 Q. My name is Brian Gardner, and I represent Joseph Olivieri. 14 be -- let's assume four vote in favor of something, two object.
15 You've known Joseph Olivieri since he was a trustee of 15 It would be that the management trustees would approve it
16 the Funds? 16 because they have four out of the six.
17 A. That's correct. 17 However, let's assume that they have all agreed and
18 Q. Did you know him before? 18 oppose something; the union trustees are in favor of it. It
19 A. I did not. 19 would be one and one. And then if they can't come to a
20 Q. How long have you been associated with the Funds? 20 resolution, there would be an arbitration.
21 A. Since 1993. 21 Q. How is the arbitrator chosen?
22 Q. And in the same capacity since that time? 22 A. Both sides would have to agree on who the arbitrator would
23 A. Correct. 23 be.
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1 0akdoli2 Grabois - cross 1 0akdoli2 Grabois - cross
Q. In terms of you were asked some questions about there are Q. Then it would be -- each side would present their
2 management trustees of the Funds and there are union trustees 2 circumstance to the arbitrator and it would be left to the
of the Funds, correct? arbitrator, is that true?
3 A. Correct. 3 A. Ultimately, the arbitrator would make the decision based
Q. And six and six on each side? upon testimony and any documentary evidence.
4 A. In the past there was, yes. 4 Q. Are the management trustees paid for their service to the
5 Q. When did that change? 5 Funds?
6 A. There's one short on the union side right now, but there's 6 A. No trustee is paid.
7 still six management trustees. 7 Q. And can you explain to the jury what the purpose of having
8 Q. That's just a temporary situation? 8 management trustees on union Funds is?
9 A. I would assume so, yes. 9 A. Management trustees represent the interests of the
10 Q. When did that happen? 10 contractors, and the contractors that are in their
11 A. In August of 2009. 11 associations, the businesses, some of the management trustees,
12 Q. Before August of 2009, it was always six and six? 12 for example, are principals of companies.
13 A. Yes. Yes, from what I recall. 13 Q. So even though they are trustees of the Funds and they have
14 Q. What happens if there is a tie in a vote? 14 some obligations with regard to that, they are also there to
15 A. A tie in terms of? 15 represent the interests of, if it is an association, their
16 Q. If there is a vote before the Funds and the management 16 company members, or if they just own the company, their own
17 trustees vote one way and the union trustees vote a different 17 company?
18 way. 18 A. That would be accurate.
19 A. There would be an arbitration. It is a block vote; so even 19 Q. And when Mr. Olivieri joined the Funds as a trustee, it was
20 though there are 12, for example, they don't count seven or 20 a, for lack of a better way to put it, it was a seat of the
21 eight. It is just one vote. 21 Funds belonging to his association, right?
22 Q. That makes perfect sense. That was my question. 22 A. You could put it that way.
23 Mr. Olivieri doesn't get an individual vote on the 23 Q. To say it differently, various associations are allotted a
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seat on the Funds from management. by the Board of Trustees.
2 A. Based on the trust agreement, correct. 2 Q. So an issue would be brought to the board. The board would
Q. In his capacity -- so when he became a Funds trustee, you say yes or no. And then you and your staff -- I don't mean you
3 and other members of the Funds were aware that he was the 3 physically, but you and your staff in hiring professionals,
director of the Wall and Ceiling Association, correct? accountants and lawyers, would put that into place?
4 A. Yes. 4 A. The staff, we do not hire the professionals. The Board of
5 Q. And you were aware that even though he was now a trustee of 5 Trustees hires the professionals.
6 the Funds, he would continue with his obligations and duties 6 Q. But do those professionals then work with you directly?
7 for the association, correct? 7 A. Yes. More so.
8 A. That's correct. 8 Q. Well. let's take On Par as an example.
9 Q. And those obligations and duties would include representing 9 You were asked about the payment plan from July of
10 member companies at arbitrations and grievances, correct? 10 2005.
11 A. Correct. 11 A. Yes.
12 Q. And those arbitrations and grievances now are against the 12 Q. I think it is marked as Government 255.
13 union, right, or the union can bring them against the 13 I don't know if you still have it in front of you.
14 contractor or the contractor can bring them against the union, 14 A. It is somewhere.
15 right? 15 Q. OK. I don't know that you need it. If you feel you need
16 A. The grievance -- we did not -- the Benefit Funds did not 16 it, let me know and we will pull it out. But --
17 participate in that; it mostly dealt with wages. But the 17 A. I have it.
18 arbitrations we dealt with. 18 Q. Oh, you do. Good.
19 Q. If there is an arbitration, you have a fund on one side and 19 There is a one-page top sheet?
20 you have a company on the other side, and that company could be 20 A. Yes.
21 represented by Mr. Olivieri, correct? 21 Q. And then there was the actual payment plan, right, which is
22 A. Correct. 22 a number of pages.
23 Q. And, in fact, that happened over and over again and nobody 23 A. Correct.
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raised an objection; that is entirely appropriate, right? Q. Just so the record is clear, I think the one page is marked
2 A. It is appropriate. 2 as 255 and the document, payment plan, is 262.
Q. Now, how often do the, generally speaking, not precisely, When this payment plan, the 750,000 figure, was
3 but, generally, how often do the funds' trustees meet? 3 determined, did Mr. Olivieri have any input into that?
A. It varies. The way it's laid out now, it's usually the A. That I don't know. I was not privy to the discussion which
4 second Thursday of the month are committee meetings, the 4 resulted in the amount that was going to be put forward.
5 various committees, subcommittees, for trustees, and then the 5 Q. Well, in the ordinary course -- payment plans are not
6 third Thursday would be a trustees' meeting. 6 unusual, are they?
7 Q. So the full board about once a month? 7 A. They are not.
8 A. Sometimes every other month. It varies. 8 Q. In fact, going the other way, they are relatively common,
9 Every month, every other month. Something like that. 9 correct?
10 Q. You were shown one of the agreements that was put up on the 10 A. Yes. I would say they're common.
11 board, and it said the funds' trustees were to facilitate -- I 11 Q. And in determining the amount for a company that should
12 forget the exact wording, but basically to facilitate in the 12 enter into a payment plan or the amount that should be offered
13 Funds collecting whatever money it should collect for either 13 a company as a payment plan, that's done usually by who?
14 the pension or welfare benefits, right? 14 A. It depends upon where that came about. For example, my
15 A. In substance. 15 understanding from this particular situation, there was
16 Q. But what I am going to ask you to explain, how that would 16 discussion that was held between Steven Kasarda, who was
17 happen. For example, the funds' trustees aren't actually out 17 counsel for delinquency and collection, and Mr. Murray in the
18 there doing audits and investigations, are they? 18 hallway outside the arbitration room.
19 A. No. No. The way that would happen is that there would be 19 Q. So there was already an arbitration going on by the Funds
20 a collection policy which would be drafted by counsel, 20 against On Par at this time?
21 co-counsel for the Funds. It would be presented to the Board 21 A. I don't know that it was going on or it was before that.
22 of Trustees for approval, for changes, for disapproval. Once 22 I'm not a hundred percent sure of that.
23 it is approved, then it is our job to implement what's approved 23 Q. Maybe "going on" is a bad way to phrase that. But I mean
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an arbitration had been begun, a notice had gone out from the A. No. It is all subject to an audit.
2 Funds to On Par? 2 Q. And did On Par know when it was entering into the payment
A. To the best of my knowledge, I think one was scheduled, if plan that it was subject to a further audit?
3 I'm not mistaken. 3 A. I don't know that. I would assume that.
Q. And if there is an arbitration that's been noticed or Q. If he's telling you he knows he owes more money than this,
4 scheduled, usually prior to the arbitration there is an audit 4 it is fair to say that he knows something else is coming,
5 that was done of that company, correct? 5 correct?
6 A. Sure. 6 A. He didn't tell me anything.
7 Q. All right. And that's how you know there is an arbitration 7 Q. I thought you said he said -- in discussing the payment
8 or a demand for money, right? 8 plan, there was a conversation where he said he knows he owes a
9 A. Yeah. Yeah. There could either be an audit or there can 9 lot of money?
10 be what's called shortages that are filed by the carpenters. 10 A. I was led to believe that he indicated that. Not to me.
11 They would come in and indicate that perhaps, although they got11 Q. OK. He would have said that to Steve Kasarda?
12 their paycheck, they did not get benefits. So they would come 12 A. I would assume.
13 into the funds' office. They would see a particular individual 13 Q. Well, does the payment plan in any way limit the ability of
14 and file what's known as a shortage. 14 the Funds to collect more money than the $750,000?
15 We would then attempt to collect against the 15 A. No.
16 contractor who shorted the individual. 16 Q. Is there any negative impact on the Funds from the payment
17 Q. That's more of a one-person -- that is not a $750,000 type 17 plan?
18 situation, is it? 18 A. From this particular plan?
19 A. No. It could be a large amount. It could be a whole group 19 Q. Right.
20 people that came in, but not to this amount. 20 A. This one, no.
21 Q. So it's fair to say, for On Par the 750 figure was a result 21 Q. And you reached out for Joseph Olivieri by telephone,
22 of an audit? 22 right?
23 A. Yeah. There was an initial audit and then there was 23 A. I did.
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discussion. Mr. Murray, as I indicated earlier, indicated that Q. And it's not unusual that a payment plan would be -- let me
2 he knew he owed a lot of money and he was going to make this 2 rephrase that.
payment on account. It's not unusual that trustees would be contacted by
3 Q. But you don't have -- I would ask you about that in a 3 telephone concerning a payment plan, is it?
second; I appreciate that. A. It is not unusual.
4 But you don't have any reason to believe, whatsoever, 4 Q. And, again, the reason it is not unusual is because the
5 that Mr. Olivieri was involved in that audit process at all, in 5 Funds aren't really hurting themselves, they're just taking in
6 one way or the other? 6 some money, correct?
7 A. In the audit process, no. 7 A. Well, I mean, it's not unusual because the management
8 Q. And Mr. Olivieri wouldn't have any input into the audit 8 trustees are not on site so we have to call.
9 process at all, would he? 9 Q. Prior to you calling Mr. Olivieri on the payment plan, do
10 A. Normally not. 10 you recall ever discussing this payment plan with him?
11 Q. Now, the payment plan, I think as you just said, this is 11 A. I do not.
12 just an initial, it is kind of you owe us a lot of money, we're 12 Q. Do you recall the actual conversation that you had with
13 not sure how much, so let's agree that you'll pay us 750,000 13 him?
14 while we figure out how much you owe us? 14 A. The actual conversation, I do not.
15 MS. ZORNBERG: Objection to form. 15 Q. So as we sit here, you don't know whether or not he
16 THE COURT: Rephrase the question. 16 indicated, Oh, On Par, yeah, that guy's a member of our
17 BY MR. GARDNER: 17 association, he's a problem; good thing we're getting a payment
18 Q. The payment plan is just an initial agreement to intake 18 plan.
19 money into the Funds, correct? 19 You don't know what he said?
20 A. Yes. 20 A. I'm certain I would have remembered that.
21 Q. It is not a final determination, right? 21 Q. Would you remember any part of the conversation?
22 A. The payment plan? 22 A. That particular conversation, probably not. I can tell you
23 Q. Right. 23 what --
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Q. Let me ask you, do you remember making the phone call? Q. Is it fair to say that most of the employer companies are
2 A. I do. 2 signatories through an association?
Q. Where were you when you made it? A. Yeah. I think that would be a fair statement.
3 A. In my office. 3 Q. Now, you were also shown Government Exhibit 303. These are
Q. And you had called Mr. Olivieri because you are attached to the meeting minutes from May of 2006, Government Exhibit 303.
4 the Funds and Mr. Kasarda would call Mr. Thomassen because he 4 A. Let me just try to get it. I see it here.
5 works for the union? 5 Yes.
6 A. Yes. 6 Q. And this is now May of '06, right?
7 Q. Is that -- 7 And it indicates that Mr. Olivieri is abstaining from
8 A. Let me correct that. Steve Kasarda -- normally one person 8 the vote, right?
9 would have spoken to both people. In this particular case -- 9 A. Yes, it does.
10 and the reason I remember it, Steve had got in touch -- Steve 10 Q. Do you recall having any conversations with Mr. Olivieri at
11 Kasarda got in touch with Pete Thomassen because Pete Thomassen 11 that time as to why he is abstaining?
12 was not there at the time so he had to call him. Then he came 12 A. I do not.
13 in to me, and I said that I would call one of the management 13 Q. Do you see where it says "The trustees discussed a
14 trustees. 14 settlement offer from On Par," do you see that?
15 And in the normal course of business, I would call the 15 A. I do.
16 co-chair. And to the best of my recollection, I think it was 16 Q. Now, the settlement offer is entirely different than a
17 Richard Harding was co-chair at that time, who was not 17 payment plan, correct?
18 reachable, and then I reached out to Joe Olivieri. 18 A. Correct.
19 Q. So it was just by coincidence; you were just picking 19 Q. OK. A settlement offer, unlike a payment plan, a
20 somebody to call? 20 settlement offer would be done; if the trustees agreed to it,
21 A. Correct. 21 that's it?
22 Q. The co-chairs for the Funds -- I just want to digress for a 22 A. That's correct.
23 second. The co-chairs for the Funds, I think you said, rotate 23 Q. So if it's $2 million and he owed 7, he's off the hook for
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on a yearly basis? the other five, right?
2 A. That's correct. 2 A. That's correct.
Q. But the co-chair for the union, is that always the EST, the Q. And now Mr. Olivieri, when it comes to a final
3 head of the union? 3 determination of settlement, he's saying he's abstaining,
A. The executive secretary-treasurer is the head of the union. right?
4 And, yes, that would always be the co-chair for the union. 4 A. That's what it says, yes.
5 Q. I think you said On Par did pay its payment plan, correct? 5 Q. Is it common for a settlement to be put before the board?
6 A. The 750,000, correct. 6 A. Absolutely.
7 Q. Do you keep -- as part of the Funds, do you keep a list of 7 Q. And is it common for -- I don't know how to say that. The
8 which company is a member of which association? 8 person who has an association seat on the board, is it common
9 A. Yes, we have that. It is on the system. 9 for them to abstain from voting if it is their member who is
10 Q. OK. And On Par joined the Funds, I think the letter 10 being settled?
11 said -- it is in evidence as Government's 253 -- in September 11 A. No.
12 of 2001? Does that sound right? 12 Q. So this was a little unusual?
13 A. I don't have that in front of me. 13 A. Yes, it was.
14 Q. It is a one-page sheet. 14 Q. Was there any further conversation about that?
15 A. Yes. September 20, 2001. 15 A. Not that I recall.
16 Q. So since that time in '01, you would have kept a list of On 16 Q. Did you view it as a bad thing that Mr. Olivieri was
17 Par being a member of the Wall & Ceiling Association, right? 17 abstaining?
18 A. Me personally, no, but it would be in the system. 18 A. No.
19 Q. OK. And that's kept by your office? 19 (Continued on next page)
20 A. Correct. 20
21 Q. That's not just true for the Wall & Ceiling Association, 21
22 that's true for most -- for all of the associations, right? 22
23 A. Correct. 23
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1 0AKZOLI3 GraBois - cross 1 0AKZOLI3 GraBois - cross
Q. Now, you were then shown government Exhibit 305, that's A. That's correct.
2 the -- is it a year later? Little more than a year later? 2 Q. And is it common place that the lawyers would attend the
A. Got it. meetings?
3 Q. Okay. And now we've gone to, it says report of cocounsel 3 A. Absolutely.
and it talks about On-Par litigation and Mr. O'Dwyer; you see Q. And how about the accountants? If the accountants are
4 that on the second page in the middle? 4 presenting a deficit or an issue, would the accountants come
5 A. I do. 5 and discuss it with the Board?
6 Q. Okay. And again Mr. O'Dwyer is who? 6 A. Yes, they would.
7 A. Mr. O'Dwyer is managing partner of O'Dwyer & Bernstein, the 7 Q. And would the board be relying upon its attorneys and its
8 law firm here in the city and co-counsel to the Benefit Funds. 8 accountants in making its decisions?
9 Q. Would it be common for the law firm to be involved in a 9 A. Yeah. There's recommendations made and the Board would
10 delinquency of this type? 10 determine how they want to vote on it or have it implemented.
11 A. Absolutely. 11 Q. Do you know, was that 12 to 14 and a half million dollars
12 Q. Would they be involved in most delinquencies? 12 ever collected?
13 A. I wouldn't say most, because there are times there are 13 A. No. The figure turned out not to be enforceable.
14 delinquencies contractors agrees to pay and it's resolved. 14 Q. Meaning he didn't have the assets?
15 Q. Okay. But if there is a dispute, the lawyers would get 15 A. No.
16 involved? 16 Q. What did the Funds actually recover?
17 A. Yeah, or obviously a lawsuit. 17 A. 4.2 million.
18 Q. And this now says, O'Dwyer's firm is seeking to recover 18 Q. Including the 750 that was paid?
19 approximately 12 to 14 and a half million dollars. You see 19 A. That's correct.
20 that? 20 Q. So there was an additional three and a half million
21 A. I do. 21 dollars?
22 Q. Was there anything presented to the Board at that time 22 A. Correct.
23 showing them, showing them that or was it just a matter of Mr. 23 Q. Okay. When did that three and a half million dollars
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O'Dwyer would come in and present it or it would be through you finally get paid?
2 or somebody else? 2 A. I don't remember the exact date.
A. I don't recall whether the forensic audit report was handed Q. Recently?
3 out or it was read, but this was based on a forensic audit 3 A. Fairly recently.
report. Q. And did anybody from the U.S. Attorney's Office present to
4 Q. And I see on the cover of that page, the first page, it 4 the Board regarding that three and a half million dollars?
5 lists the trustees that are there? 5 A. Present to the Board, no.
6 A. Correct. 6 Q. Did the U.S. Attorney's Office make any representations to
7 Q. And then it lists others? 7 the Board in any way concerning the three and a half million
8 A. Correct. 8 dollars?
9 Q. Including yourself, Mr. O'Dwyer who we just talked about? 9 A. Not that I recall.
10 A. Yes. 10 Q. So who was it that contacted the Board and said there's
11 Q. Mr. Brossman, who is he? 11 only three and a half million dollars here?
12 A. Yes. Mark Brossman is co-counsel, represents the 12 A. Counsel did that.
13 Management Trustees. 13 Q. Counsel for who?
14 Q. Okay. So there's actually a separate lawyer for the 14 A. Counsel for the trustees.
15 management section of the Trustees and a separate lawyer for 15 Q. That would be Mr. Brossman or Mr. O'Dwyer?
16 the Union section? 16 A. I think Mr. Rothman was more intimately involved from the
17 A. They represent their interests, but they're both co-counsel 17 O'Dwyer Bernstein firm, Gary Rothman.
18 to the Benefit Funds. 18 Q. Are you aware of audits against On-Par evidencing an amount
19 Q. Mr. Brossman is from what firm? 19 of $10 million, sir?
20 A. Schulte Roth & Zabel. 20 A. I don't recall that, no.
21 Q. And if I go back to the Government's Exhibit 303, the 21 Q. You're aware that there were audits of On-Par, correct?
22 minutes meeting from a year earlier, they're both attending 22 A. Yes.
23 that as well, right? 23 Q. Okay. And you're aware that the audit findings were into
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the many millions of dollars, correct? On-Par?
2 A. Yes. 2 A. Yes.
Q. Okay. And you're aware that three and a half million Q. And would this be the type of document that's kept in the
3 dollars that was received or settled upon recently, as you 3 ordinary course of business of the Funds?
said, was less than the audit amounts, right? A. Yes, it would be.
4 A. If you want me to explain, I'll be more than happy to. 4 Q. And it would be kept by you?
5 Q. Sure. 5 A. By the Funds.
6 A. It turned out that in the forensic audit, what occurred was 6 Q. By the Funds by your office?
7 that everyone on the payroll was picked up. When I say picked 7 A. By my office.
8 up, when the forensic auditor went through the list, he 8 Q. And attached to it, is that the back-up documentation for
9 included everyone in there. 9 the audit referenced in the -- in that letter?
10 Ultimately, what occurred was that the only ones we 10 A. Yes.
11 were able to prove did what we call covered work, carpentry 11 MR. GARDNER: Your Honor, I move this into evidence.
12 work were listed and Union members, and it came out to 4.2 12 MS. ZORNBERG: No objection.
13 million. 13 THE COURT: Admitted without objection.
14 So had we gone ahead in a lawsuit, we would not have 14 (Government's Exhibit 261 received in evidence)
15 been able to prove that the others did carpentry work. 15 Q. Mr GraBois, what's the number on the bottom the
16 Q. So, and that's probably not uncommon for an audit, it's 16 Government's number?
17 difficult to back into who is actually doing carpentry work, 17 A. 261.
18 correct? 18 Q. 261, thank you.
19 MS. ZORNBERG: Objection to form. 19 Can you tell us what that letter references, the top
20 THE COURT: Sustained. Rephrase. 20 page?
21 Q. Is that an unusual situation to be in for the Funds? 21 A. Delinquency. It's --
22 A. It happens. 22 Q. By who?
23 Q. And just so we're clear, though, the audits that were 23 A. By On-Par.
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performed of On-Par prior to that, evidenced a greater amount Q. Okay. And what's the date of the delinquency?
2 owed, correct? 2 A. March 24th -- well, the date of the letter is March 24th,
A. I don't recall the exact figures. I believe in one 2004.
3 particular instance, yes. 3 Q. Right. But the delinquency period that it covers is what?
Q. And those audits were conducted while Mr. Olivieri was a A. From --
4 Trustee of the Funds, correct? 4 Q. If I point your attention to the first page, the first
5 A. I recall that that's the case. 5 sentence says "Delinquency infringed benefit contributions for
6 Q. And Mr. Olivieri never, in any way, interfered with that 6 the period of January --"
7 audit process, did he? 7 A. That's the audit period.
8 A. He did not. 8 Q. -- "of 02 to September of '03." That's audit period?
9 Q. Did Mr. Olivieri, to your knowledge, ever intervene on 9 A. Yes.
10 behalf of On-Par in any way? 10 Q. And that means that's what the auditors looked at?
11 A. Not that I know of. 11 A. Correct.
12 MR. GARDNER: I just want to show one document, your 12 Q. So back in March of '04, the Funds are aware that there are
13 Honor. 13 delinquencies and they're auditing On-Par, correct?
14 Your Honor, I'm going to hand the witness, if I may 14 A. Correct.
15 approach, it's Government's Exhibit 261. 15 Q. Okay. Are you aware there were prior audits as well?
16 THE COURT: Yes. 16 A. I'm sure there was, but I do not recall that specifically.
17 Q. Do you see that top letter? 17 Q. Okay. Are you aware that Mr. Olivieri gave a deposition in
18 A. I do. 18 a civil matter brought by the government against the District
19 Q. Okay. Is that your signature at the bottom? 19 Funds, the District Council?
20 A. It's a signature stamp. It's not my actual signature. 20 A. I heard about that.
21 Q. Okay. Is it your signature stamp at the bottom? 21 Q. Okay. Were you present for that deposition?
22 A. It is. 22 A. I was not.
23 Q. Is this letter coming from you on behalf of the Funds to 23 Q. Okay. Do you have any information about whether or not
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1 0AKZOLI3 GraBois - cross 1 0AKZOLI3 GraBois - redirect
Mr. Olivieri gave honest and truthful answers at that $750,000 plan for On-Par?
2 deposition? 2 A. Yes, it is.
MS. ZORNBERG: Objection. Q. Is that the payment plan that permitted On-Par to stay
3 THE COURT: Sustained. 3 open?
MR. GARDNER: No further questions, your Honor. Thank A. Yes, it is.
4 you. 4 Q. Do you know, Mr. GraBois, do you have any personal
5 MS. ZORNBERG: Just a brief redirect. 5 knowledge of whether On-Par continued to defraud the Benefit
6 THE COURT: Ms. Zornberg. 6 Funds after that plan was entered?
7 REDIRECT EXAMINATION 7 A. I understand that they did, yes.
8 BY MS. ZORNBERG: 8 Q. Was that a negative impact to the Funds?
9 Q. Mr. GraBois, on cross-examination Mr. Gardner asked you 9 A. Certainly.
10 some questions about the role of Management Trustees. Do you10 Q. Consistent with his Trustee duties, could Mr. Olivieri sign
11 recall that? 11 off on that payment plan if he was personally in debt to James
12 A. I do. 12 Murray?
13 Q. And he asked if Management Trustees continue to represent13 MR. GARDNER: Objection, your Honor.
14 their associations while also serving as trustees of the 14 THE COURT: Sustained. Rephrase the question.
15 Benefit Funds; you remember being asked these questions? 15 Q. Could a Trustee, any Trustee of the Plan, approve a payment
16 A. I do. 16 plan for a contractor without disclosing that they were
17 Q. Does the fact that a Management Trustee heads a Contractor17 personally in debt to that contractor?
18 Association, reduce the duties of that person in acting as a 18 A. They should not.
19 Trustee? 19 MS. ZORNBERG: No further questions.
20 A. No, not at all. 20 RECROSS EXAMINATION
21 Q. Even remotely? 21 BY MR. GARDNER:
22 A. No. 22 Q. As a Management Trustee, it's presumed that that Management
23 Q. Does the fact that Mr. Olivieri headed the Wall & Ceiling 23 Trustee is going to continue in the business world, correct?
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1 0AKZOLI3 GraBois - redirect 1 0AKZOLI3 GraBois - recross
Association, reduce his obligation as a Trustee to report A. Yes.
2 conflicts of interest? 2 Q. Okay. So if a Management Trustee owns a company, that
A. Everyone has to report conflicts of interest. That's part company is going to -- that construction company is going to go
3 of the fiduciary responsibility. 3 out and do construction, correct?
Q. Is it also a fiduciary responsibility to protect the A. Correct.
4 Benefit Funds against fraud and stealing? 4 Q. And in doing construction, sometimes it might be -- it
5 A. Yes. 5 might be a sub and sometimes it might have some subcontractors,
6 Q. Whether you're a Union side Trustee or Management side 6 correct?
7 Trustee? 7 A. That's correct.
8 A. Absolutely. 8 Q. Okay. And in doing, acting as a subcontractor or being a
9 MR. GARDNER: Objection, your Honor. 9 subcontractor, sometimes there are advanced payments and there
10 THE COURT: Overruled. 10 are payments owed and there's nothing wrong with that, right?
11 MS. ZORNBERG: If we could just put back up government11 MS. ZORNBERG: Objection, beyond the scope of
12 Exhibit 2551 of the payment plan documents that was mentioned.12 redirect.
13 And can you zoom out of that, Ms. Geier, to see the whole 13 THE COURT: Sustained.
14 document. Is it malfunctioning? No, can we get the whole 14 MR. GARDNER: Your Honor, it's exactly what was asked,
15 document come up on the screen? All right, why don't you take 15 if you can operate.
16 it down. We'll figure that out later. 16 THE COURT: Sustained.
17 Q. You have 255 in front of you? 17 Q. You were asked questions on redirect concerning if
18 A. I do. 18 Mr. Olivieri owed money to Jim Murray or On-Par, correct?
19 Q. Is that the document where you recorded that you had spoken19 A. Yes.
20 to Joseph Olivieri? 20 Q. Okay. If you knew that that money related to a
21 MS. ZORNBERG: I'm sorry, take that down. 21 construction project for work done, would you have -- would you
22 Q. Was that the document where you recorded that you had 22 view anything wrong with that?
23 spoken to Mr. Olivieri and that Mr. Olivieri approved a 23 MS. ZORNBERG: Objection, calls for speculation.
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1 0AKZOLI3 GraBois - recross 1 0AKZOLI3 GraBois - recross
THE COURT: Sustained. MR. GARDNER: I have no further questions, Judge.
2 Q. Do you have any personal information regarding what you 2 THE COURT: Thank you. You may step down.
were asked about on redirect concerning whether or not THE WITNESS: Thank you, your Honor.
3 Mr. Olivieri owed money to On-Par or not? 3 (Witness excused)
A. At the time I did not. THE COURT: Ms. Zornberg.
4 THE COURT: Mr. Gardner, you may remember that you 4 MS. ZORNBERG: Yes, your Honor. The government calls
5 objected to the question and I sustained it, and the government 5 its next witness, Joseph Rizzuto.
6 then rephrased it in the general terms. Those questions are 6 JOSEPH RIZZUTO,
7 not on the record at the moment. 7 called as a witness by the government,
8 MR. GARDNER: Thank you, Judge. Let me just ask one 8 having been duly sworn, testified as follows:
9 general question on follow up. Thank you. 9 DIRECT EXAMINATION
10 Q. If a company, Management Trustee Company is doing business, 10 BY MS. ZORNBERG:
11 construction business, in doing that business it's commonplace 11 THE COURT: You may be seated. Speak into the
12 for either to owe money or to be owed money from other 12 microphone as closely as possible, state your name and spell it
13 contractors? 13 for the record.
14 MS. ZORNBERG: Objection. 14 THE WITNESS: Joseph Rizzuto, R-i-z-z-u-t-o.
15 THE COURT: Overruled. 15 THE COURT: Ms. Zornberg.
16 A. I don't know that you would say it's commonplace, but I'm 16 MS. ZORNBERG: Thank you, Judge.
17 sure it occurs. 17 Q. Mr. Rizzuto, how old are you?
18 Q. Okay. And you wouldn't view that as a breach of the 18 A. 74.
19 Trustee's fiduciary duties, would you? 19 Q. You're coming across loud and clear. You don't have to
20 A. I don't agree with you. 20 lean further. You're fine.
21 Q. You would agree that if somebody took an advance, it would 21 Mr. Rizzuto, where did you grow up?
22 be a breach of their fiduciary duties? 22 A. In New York.
23 A. If they had a vote on something that specifically involved 23 Q. What's your educational background?
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1 0AKZOLI3 GraBois - recross 1 0AKZOLI3 Rizzuto - direct
a company they took an advance with, yes, it is a breach. They A. I have a college degree in Economics.
2 should recuse themselves. 2 Q. Have you served in the military?
Q. What kind of votes? A. Yes, I did.
3 A. On anything dealing with that particular contractor. 3 Q. When was that?
Q. So once you do business with a contractor in terms of A. 1961.
4 construction work, after that, you should not be voting on 4 Q. Are you currently retired?
5 anything that comes up regarding that contractor? 5 A. Yes, I am.
6 A. Yes. 6 Q. Are you married?
7 Q. Is that the custom and practice of the contractors that sit 7 A. Yes.
8 on the Trustees? 8 Q. Do you have children and grandchildren?
9 A. Some of the contractor Trustees have reduced themselves. 9 A. Three children, six grandchildren.
10 Q. Okay. And some have not? 10 Q. What did you do before you retired?
11 A. I wouldn't know if there was a conflict if they did not. 11 A. I was an operating engineer.
12 Q. Well, you're aware it's easy for you to check who's a 12 Q. And were you part of a union?
13 member of an association or who is owned by who, correct, what13 A. I was the business manager.
14 company is owned by what individual sitting as a Trustee? 14 Q. And what's the official name of the union that you were the
15 A. Yes, we can check principals of the company. 15 manager of?
16 Q. Did you -- and I guess that would fit with what we were 16 A. The International union of Operating Engineers.
17 talking about earlier when Mr. Olivieri abstained from the 2006 17 Q. Were you the head of Local 14 of that Union?
18 decision to vote on whether there should be a settlement with 18 A. That is correct.
19 On-Par? 19 Q. And just to be clear, is that a separate labor union than
20 MS. ZORNBERG: Objection, your Honor. 20 the Carpenters' Union?
21 Q. Is that what you're saying was inappropriate conduct? 21 A. Yes.
22 MS. ZORNBERG: It's beyond the scope. 22 Q. Where was Local 14 located?
23 THE COURT: Sustained. 23 A. Queens.
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1 0AKZOLI3 Rizzuto - direct 1 0AKZOLI3 Rizzuto - direct
Q. And what kind of Union is Local 14 of the Operating A. I took illegal payments from contractors.
2 Engineers? 2 Q. Is that while you were the head of Local 14?
A. Members of the Union operate heavy construction equipment. A. That is correct.
3 Q. Which would include what? 3 Q. After you were arrested, did you cooperate with the
A. Cranes, excavators, rollers, all equipment used to hoist government?
4 building material or to excavate. 4 A. I did.
5 Q. Can you describe your career with Local 14? 5 Q. For how many years did you cooperate with the government?
6 A. I was an operator for many years, and then I was elected 6 A. This is going about eight years.
7 president in 1974. I was appointed as a business agent in 1977 7 Q. Have you been sentenced by the -- have you been sentenced
8 and elected business manager in 1989. 8 yet, as you sit here today?
9 Q. And then did you remain the business manager from 1989 9 A. Yes, I have.
10 until your retirement? 10 Q. And when were you sentenced?
11 A. Yes, I did. 11 A. December 3rd.
12 Q. When did you retire? 12 Q. And that was for -- of 2009?
13 A. 2000. 13 A. Yes.
14 Q. Do you remember when, what time of year in 2000? 14 Q. And was that for the crime that you pled guilty to?
15 A. I believe it was May of 2000. 15 A. Yes.
16 Q. So from 1989 until May of 2000, this is around a 12 year 16 Q. Of taking payments from contractors?
17 period you were the head of Local 14? 17 A. Yes.
18 A. Yes, ma'am. Yes. 18 Q. What were you sentenced to?
19 Q. Do you know an individual named Joseph Olivieri? 19 A. One year probation and $45,000 in fines.
20 A. I do. 20 Q. Have you paid the fine?
21 Q. How do you know Mr. Olivieri? 21 A. Yes.
22 A. Olivieri carried messages between me and -- 22 Q. As you sit here today, are you on probation?
23 MR. GARDNER: Objection, your Honor. This is one of 23 A. Yes.
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the subjects, your Honor, of the motion in limine we discussed. Q. Are there any further charges outstanding against you?
2 THE COURT: Rephrase the question. 2 A. No.
MS. ZORNBERG: Your Honor, it's -- I'm asking the Q. What, if anything, do you have to gain by testifying here
3 witness how he knows Mr. Olivieri. This is the basic 3 today?
information, consistent with the Court's rulings. MR. GARDNER: Objection, your Honor.
4 THE COURT: See if you can lay a more gradual 4 THE COURT: Overruled.
5 foundation for the question. 5 A. Nothing.
6 Q. Okay. During the time period that you were the head of 6 Q. All right, I'd like to come now back to your relationship
7 Local 14, did Mr. Olivieri come to see you? 7 with Mr. Olivieri. You said that Mr. Olivieri passed messages
8 A. Yes, he did. 8 from organized crime to you. Did there come a point in time
9 Q. For what purpose? 9 when you learned who, on whose behalf Mr. Olivieri was passing
10 MR. GARDNER: Objection, your Honor. 10 messages?
11 THE COURT: Overruled. 11 A. Yes.
12 A. He came to -- he purported to be a message carrier for 12 Q. Who?
13 organized crime. 13 A. Louis Mosciatello.
14 Q. For what organized crime family did he carry messages? 14 Q. Now, at the time that Mr. Olivieri passed messages to you,
15 A. Genovese family. 15 what was the Genovese family's relationship with Local 14?
16 Q. Now, I want to come back to that in a moment. 16 A. They tried to control the Local. They had, for many years,
17 First I want to just ask you some further questions 17 people embedded in Local 14.
18 about yourself. Did there come a time after your retirement 18 Q. When, in your career at Local 14, did you first become
19 when you were arrested by the FBI? 19 aware of the Genovese family's influence over the Union?
20 A. Yes. 20 A. Probably 1978, '79.
21 Q. Have you pled guilty to any crime? 21 Q. How did you become aware of it?
22 A. Yes. 22 A. I was introduced to Vincent Dinapoli by one of my
23 Q. What crime? 23 business -- one of the business agents in the Local.
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Q. And who is he? Q. And where did he come to see you on those occasions?
2 A. Jack Stanton. 2 A. Mostly in my office.
Q. And who is Mr. Dinapoli? Q. When he came to see you in your office, is that at Local
3 A. He was a major boss in the Genovese family. 3 14?
Q. Did he ever try to recruit you for the Genovese crime A. Yes.
4 family? 4 Q. And did the two of you speak freely in your office?
5 A. Yes, he did. 5 A. No. Quite often we'd walk around the block.
6 Q. What did you do? 6 Q. Did there come a time when Mr. Olivieri made another
7 A. Well, for several months we had meetings, and I finally 7 request of you on behalf organized crime?
8 came to my senses and I cut it off. 8 A. Yes.
9 Q. Now, at the time that Mr. Olivieri -- at what period of 9 Q. What was that?
10 time did Mr. Olivieri first come to you to start delivering 10 A. They wanted me to appoint Joseph Coriasco assistant
11 messages on behalf of the Genovese family? 11 business manager of the Local.
12 MR. GARDNER: Objection, your Honor. 12 Q. Who was Joseph Coriasco at the time?
13 THE COURT: Reask the question. 13 A. He was a business agent.
14 MS. ZORNBERG: Sure. 14 Q. Were you aware at the time of whether Mr. Coriasco had
15 Q. You've already stated that Mr. Olivieri came to you to 15 organized crime ties?
16 relay messages from organized crime. Can we fix a time period 16 A. Absolutely.
17 for when Mr. Olivieri began doing that? 17 Q. Absolutely he did?
18 A. He did it for maybe three or four months prior to my 18 A. Yes.
19 retirement. So maybe around September of 1999. 19 Q. How did you respond -- first of all, can you walk us
20 Q. Before he came to see you the first time, did you know to 20 through how Mr. Olivieri, what Mr. Olivieri said to you when he
21 expect him? 21 raised the issue?
22 A. Yes. I was told by the previous message carrier that a 22 A. He said they wanted to make Joe Coriasco assistant business
23 fellow by the name of Rudy was going to come and pay a visit, 23 manager.
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that was Marco Lacerenza, and he told me they were taking him Q. How did you respond?
2 out of the job and Rudy was going to take over. 2 A. I initially didn't react to it, didn't intend to make him
Q. And when this -- is Rudy the same person as Joseph assistant business manager.
3 Olivieri? 3 Q. And when Mr. Olivieri said "they" wanted to make him
A. Yes. business manager, what did you understand him to be referring
4 MR. GARDNER: Objection, your Honor. 4 to as "they"?
5 THE COURT: Sustained. 5 A. Genovese family.
6 Q. Did Mr. Olivieri refer to himself as Rudy? 6 Q. What happened next?
7 MR. GARDNER: Objection, your Honor. 7 A. Well, he asked me on several occasions, and he was not
8 THE COURT: Overruled. 8 getting any satisfaction.
9 A. Initially, yes. 9 In February of 2000 we found ourselves at a Building
10 Q. What kinds of messages did Mr. Olivieri communicate to you10 Trades meeting in Miami at the Loews Hotel. And there we had a
11 from organized crime? 11 confrontation. He asked me, they want to put him into that
12 A. In the very beginning, he just gave me a few names of 12 position and you better do it now. I said I wasn't going to do
13 individuals to try to put into the Union. 13 it, and we got into a confrontation. At that time he
14 Q. What kind of individuals -- what did Mr. Olivieri say to 14 threatened me and said I had to go see the boss.
15 you with respect -- 15 Q. Can you describe -- let me just pause for a moment. First
16 A. That the boss or "they" would like to see these certain 16 of all, why were you resistant to putting Joe Coriasco as the
17 individuals put into the Union. 17 assistant business manager?
18 Q. What did you do? 18 A. Because he was a totally corrupt individual .
19 A. We put them into the Union. 19 Q. Where did this confrontation in Miami take place?
20 Q. Why? 20 A. At the Loews Hotel.
21 A. I felt I had to. 21 Q. Can you describe, as best as you can recall, what
22 Q. How often did Mr. Olivieri come to see you? 22 Mr. Olivieri said to you and what you said to him?
23 A. Maybe every couple of weeks. It wasn't that frequent. 23 A. I said I wasn't going to do it. And he said to me
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something to this effect -- it's a long time ago -- you better in the past with wiretaps.
2 remember where you came from; if you don't, you could be in a 2 Q. Were you wearing any sort of recording device that day?
world of hurt, and you're going to have to see the boss. A. No, no.
3 Q. Did there come a time, after that confrontation, when 3 Q. Were you concerned for your safety?
Mr. Olivieri took you to see his boss? A. I can't say I was really concerned for my safety, but I was
4 A. Yes. 4 very uncomfortable.
5 Q. When was that? 5 Q. In the hotel room when you indicated you and Mr.
6 A. Maybe a week or two weeks after that convention. 6 Moscatiello talked --
7 Q. Please tell us what -- 7 A. Yes.
8 A. The end of February, maybe. 8 Q. -- where was Mr. Olivieri?
9 Q. This is in the year 2000? 9 A. Just to the side.
10 A. Yes. 10 Q. Was he within ear shot?
11 Q. Please tell us what happened. 11 A. I believe so.
12 A. I was told to meet him in a catering hall. There was some 12 Q. And what did Mr. Moscatiello -- how did that discussion go?
13 kind of a function going on. He told me to meet him at this 13 A. Well, he told me he wanted Joe Coriasco assistant business
14 catering hall. And when that function was over we got in his 14 manager. And I was able to convince him that it would be the
15 car and he drove me to a hotel in Queens. 15 wrong thing. My son was business manager, just newly elected
16 Q. Where was the hotel in what vicinity? 16 by the line officers, and by putting Joe Coriasco, who was
17 A. Just outside of LaGuardia Airport. 17 already getting pretty old, not that popular, and a lot of
18 Q. What happened next? 18 people knew he was a bit shady, it would've destroyed my son's
19 A. Well, we went into the hotel. We went up a couple of 19 career. Now, if you destroy my son's career, then the wise
20 floors, I don't remember exactly where, knocked on the door and20 guys lose the link to the Local, and that's why they backed
21 it was opened by Lou Mosciatello. I entered the room. I was 21 off.
22 searched, told to take my jacket off, patted down. We sat on 22 Q. How soon after that meeting with Joseph Olivieri and Louis
23 the bed. And we had a conversation about making Joe Coriasco23 Mosciatello did you retire from Local 14?
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assistant business manager. A. Two months.
2 Q. Let me show you now what's been marked as exhibit 50. Mr. 2 MS. ZORNBERG: May I have a moment, your Honor?
Rizzuto, do you recognize the photograph of the man in exhibit THE COURT: Yes.
3 50? 3 MS. ZORNBERG: No further questions.
A. It's Louis Mosciatello. THE COURT: Mr. Gardner.
4 MS. ZORNBERG: Your Honor, the government offers 4 MR. GARDNER: Yes, your Honor. Thank you.
5 exhibit 50 into evidence. 5 CROSS EXAMINATION
6 MR. GARDNER: No objection, your Honor. 6 BY MR. GARDNER:
7 THE COURT: Admitted without objection. 7 Q. Mr. Rizzuto, my name is Brian Gardner. I represent Joseph
8 (Government's Exhibit 50 received in evidence) 8 Olivieri.
9 MS. ZORNBERG: Can we display that? We're having a 9 When did you plead guilty?
10 technical difficulty. I'm just going to display it the old 10 A. When did I plead guilty?
11 fashion way. 11 Q. Yeah.
12 MR. GARDNER: Your Honor -- 12 A. December -- well, let's see. At the trial, December 3rd.
13 THE COURT: Yes. 13 Q. Of what year?
14 MR. GARDNER: Never mind. I withdraw my objection. 14 A. 2009.
15 Q. Mr. Rizzuto, who physically brought you to the hotel room 15 Q. When did you first start cooperating with the government?
16 where Mr. Moscatiello was waiting? 16 A. 2003.
17 A. Joe Olivieri. 17 Q. And when did you first start taking illegal payments?
18 Q. And you said when you came in to the hotel room you were 18 A. Probably 1978, '79.
19 searched. Who physically searched you? 19 Q. Part of your cooperation with the government is that you
20 A. Mosciatello. 20 would testify if the government asked you to testify?
21 Q. What, if anything, did Mr. Moscatiello say to you while 21 (Pause)
22 patting you down? 22 A. I don't know.
23 A. He says, don't take it personally. He says I had problems 23 Q. Okay. You testified in other trials as well, correct?
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1 0AKZOLI3 Rizzuto - cross 1 0AKZOLI3 Rizzuto - cross
A. Yes. Well, that's part of the cooperation, yes. A. No, just about everybody.
2 Q. That's what I'm asking, it's part of the cooperation you're 2 Q. And what was the name, Lacerenza, is that the name?
supposed to testify, correct? A. Marco.
3 A. Yes. 3 Q. Yeah. Were you friend with him?
Q. Okay. The last case that you testified, who were the A. Yeah, not friends, but I knew him well 'cause he was in the
4 defendants; remember their names? 4 Union for 20 years.
5 A. Yeah, John -- 5 Q. Did he ever make payments to you?
6 Q. Amicucci. 6 A. No.
7 A. Yes, Amicucci. 7 Q. Did he ever ask you for payments?
8 Q. Sorry. You recall in that case the jury returned a verdict 8 A. No.
9 of not guilty? 9 Q. Were you afraid of him?
10 A. Yes. 10 A. No.
11 MS. ZORNBERG: Objection, your Honor. 11 Q. Were you afraid of Joe Olivieri?
12 THE COURT: Sustained. 12 A. No.
13 MS. ZORNBERG: And we move to strike that response. 13 Q. Were you afraid of Lou Mosciatello?
14 THE COURT: Sustained. 14 A. A, only when I found out what he was, when I found out he
15 Q. Mr. Rizzuto, what was the charge that you pled guilty to? 15 was the boss behind what was going on.
16 A. Taking illegal payments. 16 Q. How long had you known Lou Mosciatello for prior to that
17 Q. Was there a conspiracy and mail fraud also attached to 17 meeting you described at the hotel?
18 that? 18 A. I knew Mosciatello way back when he was in charge of Local
19 A. Yes. 19 560 of the Papers Union.
20 Q. And what did those illegal payments consist of, what were 20 Q. And you had seen him any number of times over the years,
21 you paid for? 21 correct?
22 A. Christmas gratuities. 22 A. I haven't seen him prior to that meeting in the hotel for
23 Q. And how about the mail fraud? 23 maybe 20 years.
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A. It was all part of the same. Q. You never saw him regarding his duties at the Local you
2 Q. Did you ever -- were you ever involved in selling Union 2 just gave us?
books? A. That was 20 years ago.
3 A. Yes. 3 Q. That was 20 years ago, okay. Did he threaten you in any
Q. What is a Union book? way at that time?
4 A. It's a membership, represents membership in the Union. 4 A. Excuse me?
5 Q. And what was the first time you sold a Union book 5 Q. Did he threaten you in any way at that time?
6 improperly? 6 A. No.
7 A. Well, it was just one, and it was done through Joe 7 Q. Had you ever been threatened by anybody through Lou
8 Coriasco, I was party to it, and that was probably in 1990. 8 Mosciatello?
9 Q. And you knew it was illegal when you did it? 9 A. No.
10 A. Absolutely. 10 Q. Did Joe Olivieri ever offer you money?
11 Q. And how about taking the money from the contractors, you 11 A. No.
12 knew that was illegal when you did it? 12 Q. Did he ever ask you for money?
13 A. Yes. 13 A. No.
14 Q. Was that money given to you -- why don't you give us some 14 Q. Did he ever ask you for -- let me rephrase that. When you
15 of the names of some of the contractors that paid you. 15 are talking about putting people into Local 14, correct, you
16 A. Amicucci, Nab. I can't think of -- 16 testified to the government?
17 Q. How would it work, would they just show up at the Union 17 A. Yes.
18 Hall and give you an envelope? 18 Q. Okay. And the government asked you some questions about
19 A. Yeah. Basically, around Christmas time they call me and 19 that. If somebody's a signatory with Local 14, contractor,
20 stop by the office or they come to my office. 20 they can just hire somebody and put them in the Union, correct?
21 Q. How long a period of time -- that went on for years? 21 A. No.
22 A. It went on for years, yes. 22 Q. They can't?
23 Q. Anybody else at the Union receiving payments or just you? 23 A. No.
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Q. Are you familiar with what's called anti-discrimination A. No.
2 provisions under the Union laws where a contractor is permitted 2 Q. You're saying it never happened?
to hire somebody and they have to -- A. I don't say it never happened, but it could have happened.
3 A. Absolutely. That doesn't mean he has to go into the Union, 3 That normally, normally his contractors worked on the job under
sir. the general contractor. The general contractor was responsible
4 Q. Well -- 4 for hoisting all of the materials, so he can hire the operating
5 A. He can hire him and he get paid union wages and fringe 5 engineer, the general contractor.
6 benefits. 6 Q. I understand you're saying ordinary. Let me find out what
7 Q. All right. And that within a certain amount of time he has 7 this provision is called.
8 to join the Union, correct? 8 MR. GARDNER: Excuse me. May I consult, your Honor,
9 A. No, I don't think so. 9 for one second?
10 Q. So it's your testimony is you can receive Union pension, 10 THE COURT: Yes.
11 Union benefits and a Union retirement package without ever 11 Q. Isn't it true you had a, whether a verbal agreement with
12 being a member? 12 the Wall & Ceiling association that regarding unloading
13 A. That's correct. 13 materials?
14 Q. And receiving a member card? 14 A. Not that I can recall.
15 A. That is correct. 15 Q. Now, you testified that Joseph Olivieri was talking to you
16 Q. Have you ever read -- were you ever given information 16 about an individual to be a business manager that you said had
17 regarding these anti-discrimination provisions? 17 organized crime ties?
18 A. Union affiliation has nothing to do with fringe benefits. 18 A. Assistant business manager.
19 MS. ZORNBERG: Objection. 19 Q. What was that individual's name?
20 Q. It has to do with membership dues? 20 A. Joe, Joseph Coriasco.
21 A. It has nothing to do with membership. 21 Q. And what was his organized crime ties, what family?
22 Q. Unions -- aren't? 22 A. I believe he was tied to the Columbo family.
23 A. There is a trust fund set up that the contractor pays into. 23 Q. So not the Genoveses at all?
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And if the man works under a contract, he's entitled to them A. No, not that I know of.
2 whether he works under the union flag or not. 2 Q. And you're saying that Joseph Olivieri only interacted with
Q. How many years were you facing when you were indicted? you for a period of three to four months?
3 A. Potential 15 years. 3 A. Yes.
Q. Did you ever serve any time in jail? Q. And even during that time he only saw you or spoke to you
4 A. No. 4 at all maybe every other week?
5 Q. And you received a sentence of probation, right? 5 A. Five, six times. I don't recall exactly.
6 A. Yes. 6 Q. Your total history with him while you're president or head
7 Q. You're familiar with the Wall & Ceiling Association? 7 of Local 14, most is five or six times?
8 A. A little bit. 8 A. Yeah. I would think that's about right.
9 Q. You're familiar that Joseph Olivieri was a director of that 9 Q. If you wanted to have a meeting with Lou Mosciatello or Lou
10 Association? 10 Mosciatello wanted to have a meeting with you, no reason to
11 A. Yes. 11 involve Joseph Olivieri, correct?
12 Q. You're familiar that that Association had an agreement with 12 A. I don't know Joseph --
13 Local 14? 13 MS. ZORNBERG: Objection?
14 A. Did not. 14 A. -- Lou Mosciatello was the boss, not until I went to that
15 Q. That association, did those association members hire Local 15 hotel room.
16 14 members? 16 Q. Okay. But if Lou Mosciatello wanted to contact you, he
17 A. Not usually. 17 certainly had the ability to do that, correct?
18 Q. Okay. Well -- 18 MS. ZORNBERG: Objection.
19 A. They're usually subcontractors. My engineers worked 19 THE COURT: Overruled.
20 primarily for the general contractor. And a general contractor 20 A. Could he have contacted me?
21 is responsible for hoisting all the subcontractor materials. 21 Q. Yeah.
22 Q. When an association member of Wall & Ceiling Association 22 A. Sure.
23 would hire Local 14 member -- 23 Q. Because absolutely no reason to go through Joseph Olivieri,
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1 0AKZOLI3 Rizzuto - cross 1 0akdoli4 Rizzuto - cross
correct? MR. GARDNER: If I can have one moment, your Honor?
2 A. I have no idea. 2 (Pause)
Q. He knows you and you know him, right? MR. GARDNER: I have nothing, your Honor. Thank you.
3 A. You're talking about -- 3 THE COURT: Ms. Zornberg.
Q. No, I'm talking about Lou Mosciatello? MS. ZORNBERG: Yes. A brief redirect, your Honor.
4 A. I, prior to seeing him in the hotel, I hadn't seen him for 4 REDIRECT EXAMINATION
5 20 years before that. 5 BY MS. ZORNBERG:
6 Q. But he knows who you are; he knows you, right? 6 Q. Just to clear something up.
7 A. Oh, absolutely. 7 On cross-examination, Mr. Rizzuto, you were asked when
8 Q. And you know who he is right? 8 you pled guilty to taking cash from contractors, and I believe
9 A. Yeah. 9 you stated that you pled guilty in 2009 and that you were
10 Q. Okay. And if you wanted to speak to him or if he wanted to 10 sentenced in 2009.
11 speak to you, he knew how to find you and contact you, correct?11 Did you plead guilty and were sentenced in the same
12 A. Of course. 12 year?
13 Q. All right. So my question is there is no reason he had to 13 A. Oh, no. No, you're talking about -- when I pleaded guilty,
14 go through Joseph Olivieri, right, correct? 14 no, that was probably 2004, originally. It's only a guess. I
15 A. I don't know. I would assume the reason would be -- 15 think it was around 2004.
16 Q. I'm not asking you to assume. There is no question -- 16 Q. Let me show you what's been marked as Government 3504-C.
17 MS. ZORNBERG: Objection. 17 Please take a look at that and then let us know if it
18 THE COURT: All right, sustained. 18 refreshes your recollection of when you pled guilty.
19 Q. No question before you. 19 (Pause)
20 THE COURT: Finish the answer. You can finish the 20 A. Well, this date on the top here. August 12, 2004.
21 answer. 21 Q. Does that sound right to you?
22 A. Yeah, usually the boss of a family doesn't meet personally 22 A. Yeah, that should be -- yeah.
23 unless it's some very serious question. They usually have an 23 Q. OK. On cross-examination, defense counsel asked you who
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1 0AKZOLI3 Rizzuto - cross 1 0akdoli4 Rizzuto - redirect
intermediary so there is no contact with the other individuals. did Lou Moscatiello have tha contacted you.
2 Q. It's your testimony that Lou Mosciatello was the boss of a 2 As a factual matter, who did contact you on behalf of
family? Lou Moscatiello?
3 A. Well, that's what your -- I was told I was going to see the 3 MR. GARDNER: Objection, your Honor.
boss. THE COURT: Overruled.
4 Q. I'm asking you. 4 A. Joe Olivieri.
5 A. When I got -- 5 Q. Who brought messages to you on behalf of Lou Moscatiello?
6 Q. My question is is it your understanding Lou Mosciatello was 6 A. Joe Olivieri.
7 the boss of a family? 7 Q. Who threatened you with a world of hurt if you forgot your
8 A. I got that understanding from going to that meeting at the 8 obligation to organized crime?
9 hotel, yes. 9 MR. GARDNER: Objection.
10 Q. You think Lou Mosciatello was the boss of the Genovese 10 A. Joe Olivieri.
11 family? 11 THE COURT: Overruled.
12 A. Oh, no I didn't say that. I said he's a boss. 12 MS. ZORNBERG: No further questions.
13 MS. ZORNBERG: Objection. 13 MR. GARDNER: Your Honor, if I could just clarify?
14 A. Not the boss, a boss. 14 RECROSS-EXAMINATION
15 Q. Did you ever receive any cash payments for any contractors 15 BY MR. GARDNER:
16 that you believed were members of the Wall & Ceiling 16 Q. The meeting -- five or six times is the most that you spoke
17 association? 17 to Joe Olivieri, right?
18 A. No, I -- we normally didn't do any work for them so there 18 A. You know, it was a long time ago. Maybe seven times.
19 would be no reason for them to give me any kind of a gratuity. 19 Maybe eight time. It wasn't that many.
20 Q. Did you ever receive money at all by Joseph Olivieri or on 20 Q. Now, where you met Lou Moscatiello in a hotel room and you
21 behalf of Joseph Olivieri? 21 say Joe Olivieri took you there, what year was that?
22 A. No. 22 A. 2009.
23 (Continued on next page) 23 Q. It was 2009?
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1 0akdoli4 Rizzuto - recross 1 0akdoli4 Torrance - direct
A. Yes. Just before I retired. A. Yes, I do.
2 Q. So you mean 1999? 2 Q. Are you in the same division as we are?
A. Excuse me. 1999. I'm sorry. A. No. I'm in the Civil Division, as opposed to the Criminal
3 Q. So this was, by your own testimony, by your testimony, this 3 Division.
was over ten years ago, correct? Q. Do you have any title within the Civil Division?
4 A. Yes. 4 A. I am the Deputy Chief Appellate Attorney.
5 MR. GARDNER: No further questions, Judge. 5 Q. How long have you been working for the United States
6 MS. ZORNBERG: Your Honor, may I just ask two 6 Attorney's office?
7 questions to clarify something? 7 A. About eight years.
8 THE COURT: Yes. 8 Q. Can you describe, in general terms, what kind of work you
9 MS. ZORNBERG: Thank you, your Honor. 9 do in the Civil Division of the United States Attorney's
10 FURTHER REDIRECT EXAMINATION 10 office?
11 BY MS. ZORNBERG: 11 A. Sure. Our work is quite varied. We do all kinds of cases
12 Q. Mr. Rizzuto, after Joseph Olivieri stopped coming to see 12 in which the government sues someone or gets sued by someone.
13 you, did someone else take over for him? 13 That can range from personal injury, to employment
14 MR. GARDNER: Objection, your Honor. 14 discrimination, to civil rights enforcement, to racketeering
15 THE COURT: Sustained. 15 law enforcement.
16 Q. How clear in your mind is the meeting that you had with 16 Q. At some point while working at the United States Attorney's
17 Mr. Olivieri in the hotel room? 17 office, did you come to be involved in a case involving the
18 MR. GARDNER: Objection, your Honor. 18 Carpenters' Union?
19 THE COURT: Sustained. 19 A. Yes, I did.
20 You may step down. 20 Q. When did you first come to be involved in that case?
21 MS. ZORNBERG: No further questions. 21 A. It was 2003.
22 (Witness excused) 22 Q. Since that time, have you been working continuously on that
23 THE COURT: We are going to take the afternoon break 23 case?
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1 0akdoli4 1 0akdoli4 Torrance - direct
at this point. It is 3:30. We will return in about ten A. Yes.
2 minutes. 2 Q. Is that the only case you worked on, or do you have other
(Recess) cases?
3 (Jury not present) 3 A. No. I have plenty of other cases.
THE COURT: Bring the jury in, please. Q. Since that time, since 2003, have you come to be familiar
4 (Jury present) 4 with the history of the civil case involving the Carpenters'
5 THE COURT: Please be seated. 5 Union?
6 Mr. Lanpher. 6 A. Yes, I have.
7 MR. LANPHER: Your Honor, the government calls as its 7 Q. Now, was 2003 the beginning of that case?
8 next witness Benjamin Torrance. 8 A. No. That case was initiated in 1990.
9 BENJAMIN TORRANCE, 9 Q. I want to ask you some questions about the background of
10 called as a witness by the government, 10 the case.
11 having been duly sworn, testified as follows: 11 Who brought the case initially?
12 THE COURT: You may be seated. Speak into the 12 A. The United States government.
13 microphone as close as possible. 13 Q. And you said it was brought in 1990?
14 Say your name and spell it for the record. 14 A. That's right.
15 THE WITNESS: Benjamin Torrance, t-O-R-R-A-N-C-E. 15 Q. What were the allegations?
16 THE COURT: Mr. Lanpher. 16 A. The allegations were that the Carpenters' Union, the
17 DIRECT EXAMINATION 17 District Council of Carpenters here in New York City, was
18 BY MR. LANPHER: 18 corrupt, that it was being run for the benefit of its
19 Q. Good afternoon, Mr. Torrance. 19 leadership and other people outside the union rather than for
20 A. Good afternoon. 20 the benefit of the union members.
21 Q. What do you do for a living? 21 Q. Is that case known as a civil RICO case?
22 A. I am an Assistant United States Attorney in this district. 22 A. Yes, it is.
23 Q. Do you work in the same office as Ms. Zornberg and myself?23 Q. Who were the defendants in that case?
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1 0akdoli4 Torrance - direct 1 0akdoli4 Torrance - direct
A. The defendants were the District Council of Carpenters, Government Exhibit 1.
2 which is the New York City Carpenters' Union; the top officers 2 MR. GARDNER: No objection, your Honor.
at the time of the Carpenters' Union, some of the former top THE COURT: Admitted without objection.
3 officers, and various people associated with organized crime. 3 (Government's Exhibit 1 received in evidence)
Q. Just to be clear, was Joseph Olivieri in any way a MR. LANPHER: Ms. Geier, please put up the first page
4 defendant in that case? 4 of that on the screen.
5 A. No, he was not. 5 Q. So you said that this is the court-ordered settlement, if
6 Q. You said various people associated with organized crime. 6 you will, between the parties in that case?
7 What kinds of allegations were there involving the Carpenters' 7 A. Yes, that's right.
8 Union in that case? 8 MR. LANPHER: Ms. Geier, could we zoom in on the top
9 A. The allegations were that the Carpenters' Union was 9 half of that, the caption?
10 controlled by and influenced by organized crime members, 10 Q. Mr. Torrance, could you just walk through for the jurors
11 members of the La Cosa Nostra organized crime families in New11 what this caption shows?
12 York City. 12 A. Sure. It notes that the United States, meaning the United
13 Q. And was the government's interest in cleaning up the union? 13 States government, is the plaintiff, which just means that
14 A. The union -- the Carpenters' Union is a major union in a 14 we're the ones who brought this case, and then names as the top
15 major industry here in the city, and our belief and our 15 defendant the District Council of New York City and Vicinity of
16 evidence that it was being used not for the benefit of its 16 the United Brotherhood of Carpenters, which is, as I said, the
17 members but essentially to steal from those members, to deprive17 Carpenters' Union here in New York City.
18 those members of wages that they earned and benefits that they18 And then over on the right side, it notes that this
19 had earned and that those things were instead being used to 19 document is a Judgment and Consent Decree, and then it has the
20 enrich the union leadership and organized crime members, that 20 case number and the date it was filed.
21 is against the law and that's when we stepped in to stop. 21 Q. Now, the United States of America, is that the Department
22 Q. To be clear, that lawsuit was brought in 1990, is that 22 of Justice in this case?
23 right? 23 A. The Department of Justice represents the United States in
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A. That is right. cases like this.
2 Q. At some point was there some form of resolution? 2 MR. LANPHER: OK. Now, Ms. Geier, could we zoom out,
A. In 1994, the government and the union signed a Consent and show page 20 of this document.
3 Decree. 3 Q. Now, what is on this page, Mr. Torrance?
Q. In general terms, what is a consent decree? A. At the bottom is the signature of Judge Haight, who was the
4 A. It is a court-ordered agreement between the parties to a 4 judge who was presiding over the case at that time.
5 lawsuit. 5 Q. And Judge Haight, what kind of judge is he?
6 Q. And in this case if you could summarize in broad terms what 6 A. He is a federal judge, a United States District Judge.
7 the Consent Decree did? 7 Q. If you could just take a look at the next few pages,
8 A. Yes. It took several steps to stop the racketeering and 8 Mr. Torrance. What do you see on the next few pages?
9 the corruption that we saw in the union. 9 A. The signatures of both the parties to the case and their
10 Would you like me to do that in more detail or -- 10 lawyers.
11 Q. Well, before you do that. 11 Q. Now, I would like to turn back to page 3 of the Consent
12 MR. LANPHER: Your Honor, may I approach? 12 Decree.
13 THE COURT: Yes. 13 MR. LANPHER: Ms. Geier, please put that up. And if
14 Q. I'm showing you what's been marked as Government Exhibit 1. 14 you could zoom in on the first, top half. A little further
15 Do you recognize that? 15 down. There you go.
16 A. Yes, I do. 16 Q. What is this page describing? It says, "Permanent
17 Q. What is that? 17 injunction against racketeering activity."
18 MR. GARDNER: Your Honor, may we have a minute just to 18 A. Right.
19 pull it up. 19 Q. What does that mean, Mr. Torrance?
20 THE COURT: Yes. 20 A. This is one of the provisions, the anticorruption
21 Q. What is that? 21 provisions of the Consent Decree. A permanent injunction is
22 A. This is the Consent Decree I just referred to. 22 just a permanent court order. And "against racketeering
23 MS. ZORNBERG: Your Honor, the government offers 23 activity as further described below," but it is designed to
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prevent the kind of corruption and racketeering that was the Government Exhibit 1, page 3 again, up, and zoom in on that
2 reason for this lawsuit. 2 same portion that you had before.
Q. OK. And now at the top: "That all current and future (Pause)
3 officers, employees, and members of the District Council and 3 Q. Now, I want to walk through the list of things that it says
its constituent locals are permanently enjoined," and then it union members are barred from doing.
4 lists three things. What does that first sentence mean? 4 Number "a," or letter "a." It says: "From committing
5 A. The people who are required to abide by the injunction, 5 any act of racketeering, as defined in 18 U.S.C., Section
6 abide by this court order, are the current and future officers, 6 1961."
7 meaning the people who run the union, the employees, the people7 What does that mean, Mr. Torrance, in layman's terms?
8 who are, you know, who work for the union, and the members, 8 A. 18 U.S.C., Section 1961 is just a list of crimes, crimes
9 which just means the union members, the actual carpenters who 9 that are associated with this type of corruption and this type
10 belong to the local unions that make up the District Council of 10 of racketeering. So all the people who were subject to this
11 Carpenters. 11 Consent Decree are barred from committing those crimes.
12 Q. So this Consent Decree applies to all union members? 12 Q. "b" is: "From knowingly associating with any member or
13 A. Yes, it did. 13 associate of any La Cosa Nostra crime family or any other
14 Q. Did there come a time when there was a decision regarding 14 criminal group, or with any person prohibited from
15 whether the Consent Decree also applied to the District 15 participating in union affairs."
16 Council's Benefit Funds? 16 What does that mean?
17 A. Yes. 17 A. Well, "La Cosa Nostra crime family" refers to the Sicilian
18 Q. And what was the decision? 18 Mafia. And any other criminal group, you know, it just makes
19 A. In 1996, Judge Haight, who was presiding over this case, 19 that broader and applies it to other organizations -- criminal
20 ruled that the benefit funds were subject to this Consent 20 organizations. So people who are subject to this Consent
21 Decree. 21 Decree are prohibited from having any kind of association with
22 Q. Mr. Torrance, I am handing you what has been marked as 22 Mafia members or Mafia associates or other organized crime
23 Government Exhibit 2. Do you recognize that? 23 associates.
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A. Yes, I do. Q. And would La Cosa Nostra include the Genovese Organized
2 Q. What is that? 2 Crime Family?
A. This is the court order that I just referred to that says A. Yes, it does.
3 the Consent Decree applies to the Benefit Funds. 3 Q. The term "knowingly associate" or "knowing associating," is
MR. LANPHER: Your Honor, the government moves that defined at the bottom?
4 Government Exhibit 2 in evidence. 4 A. Right. The last paragraph of the zoomed-in screen there
5 MR. GARDNER: May we just have a moment to pull it 5 defines the term.
6 out, your Honor? 6 Q. Now let's look at "c."
7 (Pause) 7 "From obstructing or otherwise improperly interfering
8 MR. GARDNER: No objection, your Honor. 8 with the work of the officers described in this Decree."
9 THE COURT: Admitted without objection. 9 First, who are the officers described in this Decree?
10 (Government's Exhibit 2 received in evidence) 10 A. The rest of the Decree appoints a number of officers, one
11 BY MR. LANPHER: 11 of whom is called the investigations and review officer, and
12 Q. Just to be clear, Mr. Torrance, since 1996, has the Consent 12 then it also sets up what are called independent hearing
13 Decree applied to the Benefit Funds as well as to the union 13 panels. And so what this provision does is it says that the
14 members? 14 people who are subject to this Consent Decree are not permitted
15 MR. GARDNER: Objection, Judge. 15 to keep them from doing their jobs.
16 THE COURT: Rephrase the question. 16 Q. Now, to be clear, did all three of these things, a, b and
17 Q. Just let's -- who does the Consent Decree apply to? 17 c, apply to trustees of the Benefit Funds as well?
18 MR. GARDNER: Objection, your Honor. 18 A. Yes.
19 THE COURT: Overruled. 19 Q. And how long were these injunctions intended to last?
20 A. The Consent Decree applies to the officers, employees and 20 A. These are permanent injunctions. They are to last until
21 members of the union itself, and it applies to the Benefit 21 the Court says otherwise.
22 Funds. 22 Q. Are they continuing today?
23 MR. LANPHER: Ms. Geier, could we put page 3 of 23 A. Yes, they are.
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Q. In addition to these permanent injunctions, did the Consent Q. OK. Now, I want to focus for a minute on these officers
2 Decree also set up what is called job referral rules? 2 who were appointed pursuant to the Consent Decree.
A. Yes, it did. What was the initial position set up by the Consent
3 Q. Would you explain to the jury in general terms what those 3 Decree?
job referral rules were? A. The investigations and review officer.
4 A. Yes. The job referral rules are an anticorruption measure 4 Q. What is the basic job description of that person?
5 also that are part of this Consent Decree. And basically what 5 A. His job was to oversee the union. It was to investigate
6 they do is they set up a system in situations where the union 6 any allegations of corruption. It was to review the actions
7 is entitled to send carpenters to a job site, it sets up a 7 that the union took, whatever those might be. He had a role in
8 neutral system in which those carpenters are to be sent out 8 setting up the election procedure. He had a role in basically
9 according to an out of work list. And that out of work list is 9 overseeing all of the union's operations during his term.
10 an order of how long people have been out of work. So the 10 Q. And who was initially appointed?
11 person who has been out of work the longest, as long as that 11 A. Former judge, Kenneth Conboy.
12 person has the skills that are necessary for the job, is the 12 Q. Since that -- well, how long was his initial term?
13 first person to go out to that job. 13 A. Initially, it was two-and-a-half years.
14 Q. Why was it necessary to set up that sort of system for 14 Q. And how long did he stay in that position ultimately?
15 referring jobs, referring carpenters to jobs? 15 A. He was in office for slightly more than five years.
16 MR. GARDNER: Objection, your Honor. 16 Q. Since that time have other investigators been appointed by
17 THE COURT: Sustained as to form. Rephrase the 17 the court?
18 question. 18 A. Yes.
19 Q. What was the purpose of the job referral rules? 19 Q. And through your involvement in the civil RICO case, are
20 A. It is an anticorruption measure. 20 you familiar with who has been appointed at what time?
21 Q. Could you explain that? What kind of corruption is the 21 A. Yes.
22 target? 22 Q. Mr. Torrance, I'm showing you what's been marked as
23 A. Under the old system, under the system before this, certain 23 Government Exhibit 18. Do you recognize that?
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union officials had the power to send union carpenters out to A. Yes, I do.
2 jobs. That was something that was subject to a lot of abuse. 2 Q. What is that?
Those union officials were able to use their power to reward A. This is a chart that shows the various court-appointed
3 carpenters who are favored and to punish ones who are 3 officers in our civil RICO case against the Carpenters' Union.
disfavored. They could do the same thing for employers. A MR. LANPHER: The government offers Government Exhibit
4 contractor who was favored would get good workers; a contractor4 18 in evidence.
5 who was disfavored would get bad workers. That was one of the 5 MR. GARDNER: No objection, your Honor.
6 ways in which corruption occurred. 6 THE COURT: Admitted without objection.
7 So we put in the job referral rules in order to stop 7 (Government's Exhibit 18 received in evidence)
8 that. 8 MR. LANPHER: Ms. Geier, can you zoom in on the top
9 Q. And the job referral rules were intended to be a neutral 9 half. OK.
10 system? 10 Q. So the first line there, 1994 to 1999, Kenneth Conboy, IRO,
11 A. A neutral system, that's right, to make sure that all union 11 that stands for Investigations Review Officer?
12 carpenters had equal opportunities to work. 12 A. Yes.
13 Q. Now, this Consent Decree is dated 1994, is that right? 13 Q. OK. And he was in that position until 1999?
14 A. Yes. 14 A. Yes.
15 Q. Since that time, what role, if any, has the Civil Division 15 Q. The next line says 1999 to December 2002, none, no monitor.
16 of the United States Attorney's offers, where you work, had in 16 Is that correct?
17 the case? 17 A. There was no court-appointed officers at that time, that is
18 A. Well, we've continued to work with the various court 18 right.
19 officers who were appointed. We've continued to monitor the 19 Q. What happened in 1999? What changed?
20 union to keep an eye out for corruption and to keep an eye out 20 A. In 1999, the union held new elections. New leadership was
21 on the progress of the anticorruption efforts. 21 elected, and Judge Conboy's term expired around the same time.
22 Q. And the case is still going on today? 22 Q. And you said "Judge Conboy." Was Kenneth Conboy a former
23 A. Yes, it is. 23 judge?
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A. Yes. I'm sorry. I still refer to him as Judge Conboy but A. Yes.
2 he was not a judge at the time. 2 Q. What were some of the principal contractors he identified?
Q. But in 1999, you said there was a new election in progress, MR. GARDNER: Objection, Judge.
3 correct? 3 THE COURT: Sustained.
A. Yes. Q. While Walter Mack was the independent investigator, did
4 Q. Who came into power in the Carpenters' Union? 4 he -- you said he performed investigations?
5 A. Michael Forde was elected to the position of Executive 5 A. Yes.
6 Secretary-Treasurer, which is the top officer in the union. 6 Q. And as part of his job, did he issue reports to the union?
7 Peter Thomassen was elected to President, which is the number 7 A. Yes, he did.
8 two, and Gene Miello was elected as vice president. 8 Q. And what sorts of matters did Mr. Mack report on?
9 Q. And for a time after that there was no court-appointed 9 A. He reported on the contractors, in particular on the
10 investigator to monitor, correct? 10 contractors that he investigated, but he also reported on
11 A. That's right. 11 systemic issues that he found particularly with the job
12 Q. The next line is December 2002 through August 2005, and it 12 referral rules.
13 lists Walter Mack as an independent investigator, is that 13 Q. And what contractors did he report on?
14 correct? 14 MR. GARDNER: Objection, your Honor.
15 A. Yes. 15 THE COURT: Overruled.
16 Q. Would you explain the circumstances of him being appointed16 A. He reported on quite a number of them. Some of them
17 to that position? 17 included Boon Construction, Tri-Built Construction and On Par
18 A. Yes. Before that time, a union member had come forward 18 Construction; those were probably the big three.
19 with some evidence that Michael Forde, who had just been 19 Q. And you said that he reported on these contractors and
20 elected as the top officer in the union, had been manipulating 20 mentioned something about the job referral list. Could you
21 job referrals in order to get jobs for his associates, for his 21 explain the connection?
22 friends and his allies. As part of our deal with the union to 22 A. Well, as I said, his appointment arose out of accusations
23 resolve -- or at least partly resolve those claims, we agreed 23 that Michael Forde, the top officer, had been abusing the job
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with them that there would be a new court-appointed officer. referral rules. So his powers were broader than just
2 The position was called independent investigator. And in 2 investigating violations of job referral rules. That was to a
December 2002 that position was created and Walter Mack took large extent his focus.
3 that position. 3 Q. Now, Walter Mack's term came to an end in August 2005?
Q. Mr. Torrance, I am going to show you what's been marked as A. Yes.
4 Government Exhibit 3. 4 Q. Could you explain the circumstances of that?
5 A. Yes. 5 A. Well, he actually had a two-year appointment in the Order.
6 Q. Do you recognize that? 6 At the end of his two-year appointment, the union asked the
7 A. I do. 7 judge to replace him with somebody else. We opposed that. The
8 Q. What is that? 8 judge eventually decided to replace him with a different
9 A. This is the court order that I just described that appoints 9 officer, William Callahan.
10 Walter Mack and creates the office of independent investigator. 10 Q. You said we opposed that. Who do you mean by "we"?
11 MR. LANPHER: Your Honor, the government offers 11 A. I'm sorry. The government. The United States opposed
12 Government Exhibit 3 in evidence. 12 that.
13 MR. GARDNER: No objection, your Honor. 13 Q. Why did the Department of Justice take that position?
14 THE COURT: Admitted without objection. 14 A. We felt Walter Mack was doing a very good job. We felt
15 (Government's Exhibit 3 received in evidence) 15 that he was investigating things that had a number of ongoing
16 BY MR. LANPHER: 16 investigations that were productive and that he was doing a
17 Q. While Walter Mack was the independent investigator, what 17 great job with them.
18 sort of investigations was he doing? 18 Q. But ultimately William Callahan was appointed in
19 A. He looked into a number of companies, contractors, 19 August 2005?
20 employers who employed union carpenters, particularly if they 20 A. That's right.
21 had been abusing the job referral rules and engaging in corrupt 21 Q. And he continued through June 2010?
22 activity. 22 A. Yes.
23 Q. Was Mr. Mack able to identify any corrupt contractors? 23 Q. And how did the position change in June 2010?
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A. In June 2010, we -- there was a new court order entered Decree to continue.
2 that appointed the new position of review officer, which was a 2 Q. And the second issue you mentioned was whether Investigator
broader, more powerful position, and by appointing that officer Callahan should be replaced?
3 it ended the position of independent investigator. 3 A. Right.
Q. Mr. Torrance, now I want to turn your attention to the year Q. Could you explain a little more about the positions at
4 2007. 4 issue there?
5 Did there come a time when the Department of Justice 5 A. Right. So as I said, he had a two-year term that started
6 sought to depose Joseph Olivieri? 6 in 2005. So at the end of that two-year term we asked the
7 A. Yes. 7 Court -- we felt that he was not effective. We asked the
8 Q. Did you in fact personally take his deposition? 8 Court -- the government asked the Court to replace him with
9 A. Yes, I did. 9 somebody else.
10 Q. What does it mean to depose somebody? 10 And that was ongoing at the time. The union and
11 A. A deposition is a question-and-answer session that's part 11 Mr. Callahan both opposed that and said he should continue in
12 of a court proceeding that's taken under oath. 12 the job.
13 Q. I will give you a second. 13 Q. OK. Now let's turn to the third issue that you said was
14 A. Sorry. 14 pending, the civil RICO case in 2007, which regarded a contempt
15 Q. That is all right. 15 proceeding?
16 Before getting into the specifics of what led to 16 A. Yes.
17 Mr. Olivieri's deposition, can you just explain in general 17 Q. First off, what does it mean to hold someone in contempt?
18 terms what -- or how active the civil RICO case was in 2007? 18 A. Well, a person who violates a court order can be held in
19 A. That was actually a fairly active time for us. 19 contempt of court.
20 Q. What was going on? 20 Q. And in this case, could you explain a little bit about the
21 A. Well, at that time the union had actually made a motion to 21 background of the contempt proceeding?
22 end the Consent Decree. They were claiming that they had 22 A. Yeah. It revolved around the job referral rules. As we
23 essentially solved their corruption problem and it was time for 23 mentioned, the job referral rules were part of the Consent
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the Consent Decree to come to an end. Decree, which is the court order. In 2001, when it was
2 There was also a litigation over Mr. Callahan's 2 negotiating collective bargaining agreements with employers,
appointment, and his two-year term had just come to an end and the union had made a change to those collective bargaining
3 there was an application to see if he should be replaced. 3 agreements that undercut these job referral rules and made them
And then there was also -- we had a contempt essentially ineffective. And so we went to the Court and said
4 proceeding against the union, and they had been found early 4 that they violated the order and that's contempt of court.
5 2007 to be in contempt of court. And so during the year 2007, 5 Q. OK. And is that the specific proceeding that ultimately
6 we were in court about what the remedy should be for that 6 led to Mr. Olivieri's deposition?
7 contempt of court. 7 A. Yes.
8 Q. Let's go through those three subjects in a little more 8 Q. Now I want to go back into some more detail about things.
9 detail. 9 First, let's go back and I would like you to describe
10 At first you said whether the Consent Decree should be 10 again what the job referral rules were as set up by the Consent
11 terminated. 11 Decree.
12 A. Yes. 12 A. Sure. The job referral rules set up what is called the out
13 Q. And you said the union was asking the Court to terminate 13 of work list. The out of work list -- carpenters sign up to be
14 it? 14 on the out of work list, and they are placed there in order of
15 A. That's right. 15 how long they have been out of work.
16 Q. Why did the union say it should be terminated? 16 When the union has the ability to send someone to a
17 A. They basically said that their problems were solved, that 17 job site, they are supposed to be sent -- according to the job
18 corruption had come to an end, that there was no more organized18 referral rules, they are supposed to be sent in order of how
19 crime involvement, and that, therefore, there was no more need 19 long they have been out of work, as long as they have the
20 for the government or the Court to play an oversight role with 20 skills that are necessary for that job.
21 that union. 21 Q. Now, at the time of the Consent Decree in 1994, were there
22 Q. And what position did the Department of Justice take? 22 any other limitations in the union's Collective Bargaining
23 A. We thought they were wrong, and asked for the Consent 23 Agreement as to how jobs were assigned?
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A. Well, the collective bargaining agreements contained what bargaining.
2 is called the 50/50 rule. And what that meant was that for the 2 Q. Who changed it?
collective bargaining agreements that had the 50/50 rule, the A. Well, it was negotiated but the union agreed to the change.
3 employer, the contractor, would choose half of the work force 3 Q. And what was the new system called?
and then the union would send half of the workforce off the out A. The new system is usually referred to as the request
4 of work list. 4 system.
5 Q. Mr. Torrance, showing you what's been marked as Government 5 Q. I'm showing you what's been marked as Government Exhibit
6 Exhibit 19, do you recognize that? 6 20.
7 A. Yes, I do. 7 A. Thank you.
8 Q. What is that? 8 Q. Do you recognize that?
9 A. It's a diagram demonstrating how the 50/50 rule works. 9 A. I do.
10 MR. LANPHER: Your Honor, the government offers 10 Q. What is that?
11 Government Exhibit 19. 11 A. This is a diagram that shows the request system.
12 MR. GARDNER: For demonstrative purposes, no 12 MR. LANPHER: Your Honor, the government offers
13 objection, your Honor. 13 Government Exhibit 20 as a demonstrative aid.
14 THE COURT: All right. Admitted as a demonstrative. 14 MR. GARDNER: No objection as a demonstrative aid,
15 (Government's Exhibit 19 received in evidence) 15 your Honor.
16 MR. LANPHER: Ms. Geier, could you put up Government 16 THE COURT: All right. Received as a demonstrative.
17 Exhibit 19. 17 (Government's Exhibit 20 received in evidence)
18 Q. OK. So could you just walk through again how the 50/50 18 MR. LANPHER: Ms. Geier, put up Government Exhibit 20.
19 rule works? Well, let me actually start this over. 19 Q. So prior to the change in 2001, under the 50/50 rule, half
20 So under the 50/50 rule, if a job site -- if a 20 of the workers for a job that had come up would be out of work,
21 contractor started a job where they had a need for eight 21 is that correct?
22 workers, how would it work? How would that contractor hire 22 A. Yes.
23 those workers under the 50/50 rule? 23 Q. Under the request system, after 2001 was that still true?
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A. So for four of those workers, which on the diagram is A. Only technically.
2 represented by the left side, the employer can select any union 2 Q. Could you explain what happened?
member that they want. For the other four workers, they go to A. What happened is that the employer -- again, on the left
3 the out of work list. They send in a request to the union, and 3 side of this diagram, and still taking an A person job as an
then the union sends four different workers from the out of example -- the employer still has the right to select those
4 work list in order of how long they have been out of work, as 4 first four employer-side union members to go to the job site.
5 long as they had the skills that the contractor needs. 5 But on the other side, the side that the union is supposed to
6 Q. The 50/50 rule was found in the collective bargaining 6 send off the out of work list, instead of being sent in order
7 agreements of the union? 7 of how long they have been out of work, the employer has the
8 A. That's right. 8 right now to request by name specific carpenters off the out of
9 Q. And did it apply to all contractors? 9 work list.
10 A. No. Some of the collective bargaining agreements had a 10 Q. So what did this do to the 50/50 rule?
11 50/50 rule and some did not. 11 A. Well, what it did to the job referral rule --
12 Q. Well, which ones didn't have it? 12 Q. What did it do to the job referral rule?
13 A. For the most part, the collective bargaining agreements 13 A. It basically undermined it. It meant that that out of work
14 that had no 50/50 rule applied only to independent employers, 14 list was no longer working and that the job referral rules were
15 meaning employers that did not belong to one of the trade 15 not being enforced.
16 associations. 16 Q. Now, when this 50/50 rule was changed to the request system
17 Q. OK. Let me try to clear that up and ask a different 17 in 2001, was it changed in all collective bargaining agreements
18 question. 18 or just some?
19 At some point did the 50/50 rule change? 19 A. It was -- there were a few outstanding ones I think that
20 A. Yes. 20 did not have the change, but it was changed in the major
21 Q. When did it change? 21 associations' collective bargaining agreements.
22 A. In 2001, as these collective bargaining agreements came up 22 Q. So, for example, the Wall & Ceiling Association, in 2001,
23 for renegotiation, the 50/50 rule was changed in the collective 23 in its Collective Bargaining Agreement, did it have the request
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system? of work. They go back on the list, and where they have already
2 A. Yes. They got that. 2 been out of work for a long time. And so it puts them in a
Q. Now, to be clear, under this request system, is it fair to very difficult position.
3 say that the contractor could pick 100 percent of its workers? 3 Q. When the government learned of this change -- well, when
A. Yes. the government learned that the 50/50 rule had been altered in
4 MR. GARDNER: Objection. 4 certain collective bargaining agreements and that some
5 Withdrawn, your Honor. 5 associations now had the request system, what did the
6 Q. Before that, half would be sent by the union, is that 6 government do?
7 correct? 7 A. We went to Judge Haight, who was presiding over our case,
8 A. That's right. 8 and asked him to find that the union had been in contempt of
9 Q. Now, when did the government, or the Department of Justice, 9 court.
10 learn about this change to the 50/50 rule? 10 Q. And did the Court ultimately rule on the government's
11 A. I believe it was 2004. 11 contempt motion?
12 Q. So 2001, when it was changed, it wasn't made aware of that?12 A. Yes, it did.
13 A. That's right. 13 Q. What was the outcome?
14 Q. How did the government first learn about the request 14 A. It found that the union had committed contempt of court.
15 system? 15 Q. And when was it ultimately found to be in contempt of
16 A. At that time, Walter Mack was the court-appointed 16 court?
17 independent investigator and he reported that to us. 17 A. In February 2007.
18 Q. Could you describe how Mr. Mack's investigations uncovered18 Q. After the union had been held in contempt of court, what
19 this system? 19 happened in the civil RICO case?
20 A. Well, he, as part of his investigations of how the job 20 A. At that point it became a matter of what to do about it.
21 referral rules work and corruption on the job site, he took a 21 The job referral rules had been undermined and it became a
22 lot of depositions, he took a lot of interviews, and it became 22 matter of how to fix that situation.
23 clear to him as part of those investigations. 23 Q. And did the government take a position on that?
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Q. And how significant was this change to the job referral A. Yeah. We asked for basically the request system to be
2 rules? 2 gotten rid of. In large part, that's what we were seeking.
A. It was quite significant. The job referral rules are the Q. Did the union take a position?
3 major anticorruption program in the Consent Decree, and by 3 A. They did. They opposed that.
undercutting them it undercut one of the big anticorruption Q. Did the Wall & Ceiling Association take a position?
4 rules. 4 A. They also opposed it.
5 Q. Well, how did the request system lead to corruption? 5 Q. What did they argue for?
6 A. It led to corruption in a couple of ways. One is that if 6 MR. GARDNER: Objection, Judge.
7 50 percent of the workforce on a job site is sent by the union, 7 THE COURT: Overruled.
8 then those people tend to be more loyal to the union, and so if 8 A. Well, they argued for basically anything but strengthening
9 they see misconduct they'll report it. If there is a request 9 the job referral rules.
10 system and the contractor is selecting everybody, then they can 10 Q. Why did they say no change was appropriate?
11 select, if it is a corrupt contractor, they can select anyone 11 A. They said essentially that if we strengthen the job
12 they want. They can select people that they trust. They can 12 referral rules, that will cost them money and it wasn't fair to
13 select people that they know will not blow the whistle on them. 13 cost them money because they hadn't done anything wrong. In
14 I would say the other way it furthers corruption is 14 fact, they were themselves dedicated to getting rid of
15 that for the contractors -- excuse me, for the carpenters who 15 corruption and so to strengthen the job referral rules would be
16 are not requested who stay on the out of work list, they -- 16 unfair to them.
17 that out of work list doesn't move anymore because people are 17 Q. You said that the Wall & Ceiling Association said that they
18 being requested by name. So people can go for months literally 18 themselves were dedicated to eradicating corruption?
19 without getting work. And then by the time they finally do get 19 A. Yes.
20 work, they're put in an almost impossible -- if they go to a 20 Q. How did the Wall & Ceiling Association go about putting
21 job site that has corruption, where there is wrongdoing, they 21 that position before the Court?
22 are put in a very difficult situation, because if they do blow 22 A. Well, they sent in papers to the Court and they put in
23 the whistle on that, then that shuts down the job. They're out 23 affidavits from their two top officers, who were Michael Weber
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and Joseph Olivieri. said would be caused, we then wrote back to Judge Haight and
2 Q. I'm showing you what's been marked as Government Exhibit 4. 2 said we wanted more. We wanted to ask more about the
Do you recognize that? corruption and association with organized crime.
3 A. I do. 3 Q. Mr. Torrance, I'm showing you what's been marked as
Q. What is that? Government Exhibits 9 and 9R.
4 A. This is the affidavit of Joseph Olivieri that I just 4 A. OK.
5 referred to. 5 Q. Taking a look first at Government Exhibit 9, what is that?
6 Q. When is it dated? 6 A. This is an October 2007 Order from Judge Haight addressing
7 A. This says May 8, 2007. 7 the letter that I just referred to.
8 MR. LANPHER: Your Honor, government offers Government 8 Q. And was Government Exhibit 9R?
9 Exhibit 4 in evidence. 9 A. 9R is the same Order but it has been -- it's excerpts. It
10 MR. GARDNER: Without objection, your Honor. 10 has been redacted.
11 THE COURT: Admitted without objection. 11 MR. LANPHER: Your Honor, the government offers
12 (Government's Exhibit 4 received in evidence) 12 Government Exhibit 9R in evidence.
13 BY MR. LANPHER: 13 MR. GARDNER: Your Honor, presuming it is the
14 Q. Mr. Torrance, upon receiving Mr. Olivieri's affidavit, what 14 redactions that the court previously ordered with our prior
15 did the Department of Justice, or the Civil Division of the 15 objections, I think it comes in.
16 United States Attorney's office do? 16 THE COURT: Admitted. Your objection is noted.
17 A. We asked for the right to take depositions. We asked for 17 (Government's Exhibit 9R received in evidence)
18 the right to have that formal question and answer with 18 BY MR. LANPHER:
19 Mr. Olivieri, with Mr. Weber, and several other witnesses. 19 Q. After that Order was issued, what, if anything, did you do
20 Q. And when you say you asked for that right, who did you ask 20 to prepare for Mr. Olivieri's deposition?
21 it of? 21 A. After this order was issued, there was a little bit more
22 A. We asked Judge Haight. We asked the Court. 22 back and forth with the Court. But beyond that, we also -- we
23 Q. And that is the judge who was still presiding over this 23 started doing our homework. We started looking into the
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civil RICO case? background of Mr. Olivieri and talking with various people who
2 A. Exactly. 2 were knowledgeable.
Q. Why did the government want to depose Mr. Olivieri at that Q. When you say started talking to people who were
3 time? 3 knowledgeable, who did you speak to?
A. Well, we didn't believe it. We wanted to explore the truth A. In particular, we spoke to our colleagues in the Criminal
4 of what they were saying in these affidavits, whether they 4 Division and investigative agents from the FBI and the
5 actually were dedicated to eradicating corruption. 5 Department of Labor.
6 Q. How did you go about seeking to depose Mr. Olivieri? 6 Q. And what sorts of information were you seeking?
7 A. We wrote letters in June of 2007 to the Court asking for 7 A. As I said, background information about Mr. Olivieri, about
8 permission to do that. 8 any ties he might have to organized crime, any ties he might
9 Q. Did Mr. Olivieri agree to be deposed? 9 have to the Carpenters' Union, any ties he might have to
10 A. No. They opposed it. 10 various people that we were interested in.
11 Q. You said "they" opposed it. Who opposed it? 11 Q. Had you begun seeking out that information even prior to
12 A. Both the Wall & Ceiling Association -- the Wall & Ceiling 12 Judge Haight's Order?
13 Association and the other associations that were a part of the 13 A. Yes.
14 case. 14 Q. And ultimately what topics in general did you want to cover
15 Q. What happened after they objected? 15 with Mr. Olivieri at his deposition?
16 A. Judge Haight initially ruled that we could take 16 A. Well, we wanted to ask about, again, ties to organized
17 depositions. 17 crime, ties to corruption as it pertained to the Carpenters'
18 Q. Was there litigation back and forth between the parties 18 Union, as it pertained to job site corruption, the kind of job
19 over the scope of those depositions? 19 site corruption that occurred in the Carpenters' Union.
20 A. Yes. After Judge Haight's initial order, which was in 20 Q. Now, you said job site corruption. What does that term
21 August of 2007, which basically said that we could only ask 21 mean?
22 questions about the negotiating history of the Collective 22 A. That refers to essentially the types of fraud and
23 Bargaining Agreement and the economic harm that the association 23 corruption racketeering that occur centered around the job
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site. So what it means in particular is paying workers off the (In open court)
2 books, paying workers less than the union wage that they 2 MR. GARDNER: Your Honor, I apologize. With that
negotiated, not giving them the benefits that they are entitled clarification, I withdraw my objection.
3 to, misreporting who is on the job or how many people were on 3 THE COURT: All right. Mr. Lanpher.
the job, or giving bribes to shop stewards so that all that can BY MR. LANPHER:
4 occur without being caught. 4 Q. Mr. Torrance, you mentioned that there were a couple of
5 Q. Were there any particular individuals the government was 5 people in particular that you wanted to ask Mr. Olivieri about.
6 seeking to ask Mr. Olivieri questions about? 6 Was one of those people Louis Moscatiello?
7 A. There were, yes. 7 A. Yes.
8 Q. Who were some of those individuals? 8 Q. At the time, who did the Department of Justice believe
9 A. Well, I would say two in particular. One was -- 9 Mr. Moscatiello to be?
10 MR. GARDNER: Your Honor, I do have an objection. 10 A. We believed him to be a high-ranking member of the Genovese
11 This gets into some of the motions. I think we should have a 11 Organized Crime Family.
12 quick sidebar. 12 Q. And why did the Civil Division want to ask Mr. Olivieri
13 THE COURT: All right. 13 questions about him?
14 (Continued on next page) 14 A. Well, one of the things that we believed Mr. Moscatiello
15 15 was involved in was construction, and we also had evidence that
16 16 Mr. Moscatiello and Mr. Olivieri had a relationship and we
17 17 wanted to ask about that relationship.
18 18 Q. Well, why would it have mattered to the Civil Division at
19 19 that time whether Mr. Olivieri had a relationship with
20 20 Mr. Moscatiello?
21 21 A. It would have been essential to our case because the whole
22 22 case is about corruption in the union. The whole case was
23 23 about racketeering within the union. So to the extent you have
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(At the sidebar) somebody who is a high-ranking person in the Benefit Funds,
2 MR. GARDNER: Your Honor, if he is going to start 2 subject to the Consent Decree, who has a relationship with a
asking questions about other people, I just think Moscatiello high-ranking member of organized crime, that violates the
3 might be one of them. I think the -- 3 Consent Decree, and it shows that this kind of corruption is
MR. LANPHER: And Mr. Murray -- continuing.
4 MR. GARDNER: You are not eliciting DiNapoli or these 4 Q. Was one of the other people that you wanted to ask
5 other characters that were asked about at the deposition? 5 Mr. Olivieri questions about a man named James Murray?
6 MR. LANPHER: I am only trying to find out about Louis 6 A. Yes.
7 Moscatiello and James Murray. 7 Q. At the time who did you believe James Murray to be?
8 MR. GARDNER: Then I have no objection. Thank you. 8 A. James Murray was the head of a company called On Par
9 (Continued on next page) 9 Construction, and he was -- at the time he was also -- he had
10 10 been indicted for committing fraud against the Carpenters'
11 11 Union.
12 12 Q. Had he been arrested?
13 13 A. Yes, he had.
14 14 Q. When you say he had been arrested, had he been arrested at
15 15 the time of the deposition or had he been arrested since then?
16 16 A. I have to admit, I am not a hundred percent sure.
17 17 Q. At the time of the deposition, did you have any, or did the
18 18 Department of Justice have any belief as to whether Mr. Murray
19 19 had ties to organized crime?
20 20 A. We did. We had suspicions. We had reason to believe that
21 21 he had some ties to organized crime, yes.
22 22 Q. And you said that he had been indicted. What had he been
23 23 charged with doing?
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A. Fraud and embezzlement against the unions, against the sidebar?
2 District Council of Carpenters and its Benefit Funds. 2 THE COURT: Yes.
Q. Why did you want to ask Mr. Olivieri about Mr. Murray? (Continued on next page)
3 A. Again, we had some information that they had a relationship 3
and that, and, again, that would be important to us because if
4 you have the trustee of the Benefit Funds in a relationship 4
5 with somebody who was committing large-scale fraud against the 5
6 union, that again shows that the racketeering and the 6
7 corruption is continuing. 7
8 Q. Now, aside from questions about these two individuals, did 8
9 you ask Mr. Olivieri questions about other subjects as well? 9
10 A. Yes. 10
11 Q. For example, did you ask him questions about the 11
12 negotiations that led to the 50/50 -- excuse me, negotiations 12
13 that led to the request system? 13
14 A. Yes, we did. 14
15 Q. OK. Mr. Torrance, I'm showing you what's been marked as 15
16 Government Exhibit 15. Do you recognize that? 16
17 A. Yes, I do. 17
18 Q. What is that? 18
19 A. This is a transcript of the deposition that I took of 19
20 Mr. Olivieri in December 2007. 20
21 Q. Is that a complete transcript or is that sections? 21
22 A. No. This is excerpts of the transcript. 22
23 Q. Broadly speaking, what sections does that cover? 23
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A. It's -- at the beginning it talks about the negotiations, I (At the sidebar)
2 believe, leading to the request system. And then it skips and 2 MR. LANPHER: Your Honor, this is the matter we
there are some questions at the end where I asked him about his briefed over lunch today. Because we provided this redacted
3 relationships with various people. 3 version of the transcript to defense counsel almost a month
MR. LANPHER: Your Honor, the government offers ago, and this morning for the first time he informed us that he
4 Government Exhibit 15 in evidence. 4 would object to only the portion we wanted to offer coming in.
5 MR. GARDNER: Your Honor, my objection is that it is 5 The portions we plan to offer are the background
6 not the full transcript. I don't have any objection to the 6 questions, questions about James Murray and the questions about
7 full transcript coming in. I have objection to pieces coming 7 Louis Moscatiello. We don't see, for example, a need to
8 in. 8 include portions of the transcript where he is asked about
9 THE COURT: How much is the full transcript? 9 knowledge about organized crime figures or all of the details
10 MR. LANPHER: Your Honor, I believe it is -- 10 of the negotiations that led to the request system. Those
11 MR. GARDNER: This looks like about 240 pages is the 11 issues are not before the jury. And, frankly, it would be
12 full transcript, about. 12 confusing to them to put the entire transcript in when that is
13 THE COURT: Do you have any reason to believe that 13 not what he is charged with lying about.
14 what's in the excerpt is not a true representation of what is 14 Furthermore, we think, in light of defense counsel's
15 in the full transcript? 15 statements in front of the jury, we would want a limiting
16 MR. GARDNER: I don't have any reason to believe that 16 instruction to the jury so that they understand they are not to
17 what's excerpted -- the part that is there is somehow different 17 speculate what is or is not in the rest of the transcript that
18 if I match up the pages, but it is only a portion. And I have 18 is not in evidence. It is not relevant for them to consider.
19 an objection to a portion coming in rather than the full 19 All they are being asked to consider is whether he lied in the
20 deposition transcript coming in. 20 portions that we are offering as specified in the Indictment
21 I would ask that the whole deposition be put into 21 and whether those lies were material. We don't see any reason
22 evidence, your Honor. 22 why the jury should be burdened with 150 additional pages of
23 MR. LANPHER: Your Honor, may we be heard at the 23 transcript that have nothing to do with these questions.
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MR. GARDNER: Your Honor, I was also provided with a rules or the 50/50 system or the request system. It doesn't
2 full transcript. I understood that the Bates stamp by them -- 2 matter.
and I opened up on that there were portions -- material The point is he is charged with perjury because he
3 portions my client was asked about and answered legitimately. 3 falsely answered questions about James Murray, and the
The witness now has only bolstered that. He said job referral questions are did he lie and is it material. And what you need
4 rules and corruption, I don't know, 20 times now. 4 to know, what you need to look at for that is the full section
5 And the part that the government wants to take out is 5 regarding James Murray. You don't need to look at everything
6 where Mr. Olivieri was questioned about the job referral rules, 6 else, which is a way of --
7 answered, and he answered honestly; there is no perjury 7 MR. GARDNER: Your Honor, if it is material, if it is
8 charges. So they want to take out the material portion of the 8 material --
9 deposition, and then they want to take out -- what happened is 9 MR. LANPHER: That's not a bad point. If the Court
10 he was questioned at length about job referral rules and the 10 ultimately decides that we should put in the full deposition,
11 like. There is no perjury. 11 of course we will. We would ask that we be given time to
12 Towards end of the deposition, he is asked about other 12 prepare copies because we wanted to read this to the jury and
13 organized crime figures and others. And then that's where the 13 given the time --
14 alleged perjury comes up, including Jim Murray. And, your 14 THE COURT: What are you going to be reading to the
15 Honor, to not show the jury that he has answered a whole host 15 jury?
16 of questions regarding what I say is material honestly and then 16 MR. LANPHER: We would be reading portions of the
17 limit it to what they say is material, you would be deciding 17 background testimony, about the first eight pages of the
18 right now for the jury what's material and what is not if they 18 deposition.
19 are only allowed to see their portions. 19 THE COURT: You are going to do that now today, or
20 Your Honor, this is something Mr. Lanpher contacted me 20 through Mr. Torrance?
21 I think it was last night and said after your opening it seems 21 MR. LANPHER: Yes. And then the portions regarding
22 you want to put in the whole transcript. And that's the first 22 Louis Moscatiello. Later in the trial we're going to read in
23 I thought that they didn't know I wanted to put in the whole 23 the portions regarding James Murray but not through
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transcript. I said, of course. And then there was a letter Mr. Torrance.
2 this afternoon, of which I read while the testimony was going 2 Again, you know, it's a quarter to 5. We are happy to
on. give the Court a chance to think through these issues. Again,
3 Your Honor, I am happy to brief the issue, but they 3 we submitted a letter with a proposed limiting instruction that
are relying on case law that my client -- that a defendant's we think makes sense, and it consists of what the law is. It
4 own statement can't be offered by the defense attorney 4 is inconsistent with his defense.
5 generally. Generally, that's probably true. However, in a 5 Again, you know, I apologize for not highlighting this
6 perjury trial, where it is his own statements that are being 6 issue earlier. I don't -- frankly, I think we did, though. We
7 offered -- I am not offering different statements. This is the 7 sent this to defense counsel a month ago, and it never occurred
8 very deposition that they say he perjured himself in, and to 8 to us that he would seek to offer his own out-of-court
9 limit it to their portions that they want to show the jury is 9 statement, which a defendant cannot do. So we were surprised
10 so unjust and unfair, it prohibits me from defending the case 10 this morning to learn that that was his intent all along. It
11 to show jury what was material. 11 just never occurred to us because as a general matter he can't
12 He just testified that the job referral system is what 12 do it.
13 was material. Now they want to cut out the job referral? It 13 MR. GARDNER: OK. Absolutely, it is a perjury trial.
14 doesn't even make intuitive sense. 14 And I guess I'll brief the issue tonight, your Honor.
15 MR. LANPHER: Your Honor, to be clear, it is not a 15 THE COURT: Let me ask a question.
16 defense in any way to perjury to say that I answered 99 16 Is there anything that would preclude Mr. Gardner from
17 questions truthfully if on the 100th question you lie. The 17 introducing the portions that he believes contains material
18 question is, is there enough in the deposition transcript that 18 information that are not contained in what you are offering as
19 we are offering to understand the context of the questions as 19 material if he introduces them during his cross-examination?
20 to which he is charged with perjury. 20 MR. LANPHER: We do have a problem with that because
21 And he is not going to identify any of these sections 21 it suggests -- it gives the wrong impression to the jury that
22 we're offering as taken out of context. They are not. We're 22 the government is trying to hide something, which gets --
23 not saying that he lied when being asked about the job referral 23 THE COURT: I could give them an instruction. The
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Page 248 Page 250
crux of this issue here is materiality. The parties have a THE COURT: I'm not hearing Mr. Gardner saying at all
2 dispute as to what is material and what is not. The government 2 that all of the sections he's talking about contained only the
believes that this section is material. The defense believes defendant's statements as opposed to other background and other
3 that some other section is material. 3 things that conceivably might bring in context.
MR. LANPHER: Your Honor, respectfully, I disagree. MS. ZORNBERG: Your Honor, may we have just a moment?
4 The question is not whether which section is material. The 4 THE COURT: Yes.
5 question is were the lies material. That has nothing to do 5 (Pause)
6 with whether it would have been material had he lied about an 6 MR. LANPHER: Your Honor, given the time, we first
7 earlier section of the deposition. One does not have anything 7 request an opportunity to break. You know, we'll consider this
8 to do with the other. 8 overnight. It may well be that we will just try to offer the
9 MR. GARDNER: It does, because my position is those 9 whole thing.
10 other parts were the material parts and this part was not 10 THE COURT: Think about it.
11 material. 11 MR. LANPHER: Your Honor, again, what we don't want --
12 And that I'll just point out, the government want to 12 and this is the purpose of our letter -- we don't think it is
13 put in background and then skip from the background to these 13 appropriate for the jury to be left with the misimpression that
14 other areas. But I'm not allowed to put in not only the other 14 we're trying to hide something.
15 background to complete it but the parts that I say were 15 THE COURT: I think that that could be cured through a
16 material? It seems absurd. It is a perjury prosecution and 16 proper limiting instruction, which you can collaborate on and
17 you would try to limit -- if the defendant made a statement to 17 prepare something that would be acceptable.
18 the police, you are going to limit the statement -- 18 MR. LANPHER: But we'll rethink this overnight, and
19 THE COURT: This is not unlike deposition testimony 19 then we'll either brief it and/or we'll adjust. We think that
20 where one side designates one portion of the testimony and the 20 would be our request.
21 other side counter designates. 21 THE COURT: Here is my concern. It is not
22 MR. GARDNER: Right. 22 inconceivable for there to be a place in a deposition where a
23 THE COURT: It parallels. 23 question is asked and the answer is yes but later in the
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MR. LANPHER: There are parallels but it is very deposition he could say I answered yes but upon later
2 different. 2 reflection I didn't really mean that, I misunderstood the
THE COURT: If he puts in something that contains question, and I think that that is fair comment.
3 evidence that you think is not material, then you can 3 MR. LANPHER: Absolutely if that were what was going
cross-examine. Or on redirect, you can bring out why you think on, but it is not.
4 those section are not material. 4 MR. GARDNER: But in the context, it is. You want to
5 MR. LANPHER: Again, your Honor, perhaps I am not 5 take things out of context and destroy the flow, and that is
6 explaining myself. The question is not were those other 6 why I opened up on this. If you actually read the flow -- you
7 sections material or not; that is not a question for the jury. 7 want to limit the jury's knowledge as to the deposition. If
8 They do not have to decide would it have been material if he 8 you limit the flow, sure, you can try and do what the judge
9 had lied about the request system. They have to decide was it 9 says and say over here he said something. Well, the past ten
10 material when he lied about -- 10 pages they are having a discourse of give and take on exactly
11 THE COURT: He's going to say -- you are going to say 11 the subject of the deposition that you even say is the most
12 he lied in this section. 12 material part, and then you go into left field.
13 MR. LANPHER: Right. 13 Look, at a very base level and even in a civil
14 THE COURT: He's going to say, no, I didn't lie in 14 context, OK, when one side offers a portion of the deposition,
15 this section. And he is going to bring in other evidence of 15 the other side is allowed to offer the other portions. This is
16 where he's going to say he didn't lie. 16 a criminal context where he is contesting the materiality of
17 MR. LANPHER: He can't do that. 17 the entire thing. You have to look at the other parts.
18 MR. GARDNER: Right. 18 I don't think it is fair. I really don't.
19 MR. LANPHER: Respectfully, a defendant cannot offer 19 MR. LANPHER: I just don't think that is the law.
20 his own out-of-court statement. He certainly can't offer it to 20 THE COURT: Think about it overnight.
21 say, look, I'm truthful most of the time, so I must have been 21 MR. LANPHER: We will --
22 telling the truth on the question. 22 THE COURT: Come back in the morning.
23 MR. GARDNER: That is not the point. 23 MS. ZORNBERG: Will we break then for the day now?
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THE COURT: Yes. (Jury not present)
2 MR. GARDNER: If he is just reading in part, do you 2 THE COURT: Thank you. Be seated.
want to stay five or ten minutes and just -- You may step down.
3 MR. LANPHER: I would rather just break for the day 3 THE WITNESS: Thank you.
because we are going to distribute copies of the deposition to (Witness excused)
4 the jury so that they can read along. 4 THE COURT: Can we have an indication from the
5 MR. GARDNER: Are you going to ask to publish it while 5 government of its order of the day tomorrow after Mr. Torrance?
6 he is giving testimony? 6 MS. ZORNBERG: Certainly, your Honor.
7 MR. LANPHER: Yes. 7 After Mr. Torrance, the government will call Dan
8 THE COURT: All right. 8 Conlon, who is an FBI agent -- it is not particularly long
9 (Continued on next page) 9 testimony -- concerning a surveillance.
10 10 Then the government expects to call -- we haven't
11 11 figured out the precise order, but I will tell the Judge that
12 12 the next three witnesses, although the order may change. Artie
13 13 Johansen, Detective Salvatore Arrigo, and James Murray.
14 14 Mr. Murray, obviously, is going to be a long witness.
15 15 Mr. Conlon, Johansen, and Arrigo are not particularly long
16 16 witnesses.
17 17 THE COURT: Roughly how long?
18 18 MS. ZORNBERG: I would estimate 30 minutes for the
19 19 direct of each one.
20 20 THE COURT: And you expect Mr. Murray to take the
21 21 balance of the day?
22 22 MS. ZORNBERG: I think Mr. Murray's direct testimony
23 23 will probably take four to five hours on direct.
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Page 253 Page 255
1 0akdoli4 Torrance - direct 1 0akdoli4
(In open court) THE COURT: OK. Well, that takes us through tomorrow
2 THE COURT: We are going to adjourn for the day and 2 and it will spill over into Monday.
resume tomorrow at 9:30 in order to allow for the Court to deal MS. ZORNBERG: Yes, your Honor.
3 with some issues that have arisen so as not to keep you waiting 3 THE COURT: All right. Anything else?
while we deal with those issues. MR. GARDNER: No, your Honor.
4 So, again, as you adjourn and go home, do not discuss 4 THE COURT: Thank you. We will see you -- the jury
5 the case among yourselves or with anyone else on the outside or 5 has been called for 9:30, so we should meet earlier. Let's say
6 have any contact of any form, with any material or anyone 6 around 9:10.
7 associated with the case, and if any of these things should 7 MS. ZORNBERG: Your Honor, actually, there is just one
8 occur, I direct you to inform the Court immediately and not 8 quick matter I would like to raise briefly.
9 discuss it among yourselves. 9 The government has asked defense counsel if they are
10 Thank you. Have a good day. We'll see you tomorrow 10 aware of any -- if they have any witnesses on their witness
11 at 9:30. 11 list, in accordance with your Honor's individual practice
12 (Continued on next page) 12 rules. And we were told that they haven't decided whether or
13 13 not they were going to call any witnesses.
14 14 We've subsequently been contacted by at least between
15 15 two and four witnesses who have actually been subpoenaed by the
16 16 defendant to appear in court. One was subpoenaed to be here
17 17 today. Two have been subpoenaed to appear in court tomorrow.
18 18 And so we've renewed our request to Mr. Gardner to
19 19 provide us with a list of the witnesses that are on his witness
20 20 list, at least anyone to whom he has already served a subpoena.
21 21 THE COURT: Mr. Gardner.
22 22 MR. GARDNER: Your Honor, I have not decided if I'm
23 23 calling those people yet, and I don't know that I will even put
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Page 256 Page 258
1 0akdoli4 1 52 and 53 . . . . . . . . . . . . . . . . . 111
on a defense case at all, although I expect I may call one or 250 and 251 . . . . . . . . . . . . . . . . 113
2 two witnesses. The government knows who these people are, as 2 253 . . . . . . . . . . . . . . . . . . . . 115
they've indicated, which was Mr. Wagner. We've contemplated, 252 . . . . . . . . . . . . . . . . . . . . 117
3 for example, Mr. Brossman, who was the attorney for the funds. 3 262 . . . . . . . . . . . . . . . . . . . . 125
Perhaps even Irwin Popkin, who was the attorney for the 4 255 . . . . . . . . . . . . . . . . . . . . 129
4 Association, whose name appears on some of the documents that5 302 through 305 . . . . . . . . . . . . . . 132
5 are in evidence, your Honor, that he has been cc'ed on. And -- 6 261 . . . . . . . . . . . . . . . . . . . . 166
6 THE COURT: Are these witnesses you have already 7 50 . . . . . . . . . . . . . . . . . . . . 185
7 subpoenaed? 8 1 . . . . . . . . . . . . . . . . . . . . . 206
8 MR. GARDNER: Those are the people that we just
9 2 . . . . . . . . . . . . . . . . . . . . . 209
9 subpoenaed, your Honor. Again, I'm not sure that we are
10 18 . . . . . . . . . . . . . . . . . . . . 215
10 calling them but I needed to subpoena them in an abundance of
11 3 . . . . . . . . . . . . . . . . . . . . . 217
11 caution.
12 19 . . . . . . . . . . . . . . . . . . . . 224
12 They have called me. I told them obviously not to
13 20 . . . . . . . . . . . . . . . . . . . . 226
13 appear this week and we would speak again at the end of this
14 4 . . . . . . . . . . . . . . . . . . . . . 232
14 week and I'll see whether I need them and what day. And all of
15 them have been very cooperative so far.
15 9R . . . . . . . . . . . . . . . . . . . . 234
16 THE COURT: All right. Anything else, Ms. Zornberg? 16
17 MS. ZORNBERG: No, your Honor. 17
18 THE COURT: All right. Thank you. Have a good day. 18
19 (Adjourned to 9:10 a.m., Thursday, October 21, 2010) 19
20 20
21 21
22 22
23 23
25 (212) 805-0300 25 (212) 805-0300
Page 257
1 INDEX OF EXAMINATION
Examination of: Page
2 SCOTT DANIELSON
Direct By Mr. Lanpher . . . . . . . . . . . . .58
3 Cross By Mr. Gardner . . . . . . . . . . . . . .82
4 STUART GRABOIS
5 Direct By Ms. Zornberg . . . . . . . . . . . . .91
6 Cross By Mr. Gardner . . . . . . . . . . . . . 144
7 Redirect By Ms. Zornberg . . . . . . . . . . . 168
8 Recross By Mr. Gardner . . . . . . . . . . . . 170
9 JOSEPH RIZZUTO
10 Direct By Ms. Zornberg . . . . . . . . . . . . 174
13 Recross By Mr. Gardner . . . . . . . . . . . . 199
15 BENJAMIN TORRANCE
16 Direct By Mr. Lanpher . . . . . . . . . . . . 201
17 GOVERNMENT EXHIBITS
18 Exhibit No. Received
19 16 . . . . . . . . . . . . . . . . . . . . .61
20 17 . . . . . . . . . . . . . . . . . . . . .71
21 207 . . . . . . . . . . . . . . . . . . . . .96
22 300 . . . . . . . . . . . . . . . . . . . . 100
23 201A . . . . . . . . . . . . . . . . . . . 105
25 (212) 805-0300
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1 0aldoli1
TRIAL
1 0aldoli1
2 UNITED STATES DISTRICT COURT TRIAL
3 ------------------------------x 2 the deposition to other people, you wanted to limit it only to
4 UNITED STATES OF AMERICA, New York, N.Y.
Mr. Murray and Mr. Moscatiello. And you suggested that there
3 would be objection if Mr. Torrance made any reference to
5 v. 08 Cr. 0828 (VM)
others. So, based on that, we proceeded.
6 JOSEPH OLIVIERI,
4 Now, if you introduce the entire deposition, it
7 Defendant. contains all of that testimony to which you presumably were
8 ------------------------------x 5 objecting. I want to make sure that there is no disparity or
9
6 inconsistency that I am not aware of as of now.
October 21, 2010 7 MR. GARDNER: I understand the Court's concern. I
10 9:19 a.m.
8 don't have a clear recollection of that question and answer,
11 9 and I don't know if there was some other piece that I was
Before:
12 10 objecting to but clearly --
HON. VICTOR MARRERO,
13 11 THE COURT: It is not a question and answer. We had a
District Judge 12 sidebar at which the government assured you that he would be
14
13 testifying only with relation to discussions about
15 APPEARANCES
14 Mr. Moscatiello and Mr. Murray. You were concerned about any
16 PREET BHARARA 15 testimony describing questions pertaining to other figures.
17 Southern District of New York 16 MR. GARDNER: Your Honor, I understand. If the
BY: LISA R. ZORNBERG
18 MARK D. LANPHER 17 deposition comes in, it comes in as a full package, good and
Assistant United States Attorneys 18 bad.
19
SULLIVAN GARDNER, P.C. 19 THE COURT: All right. And that would include
20 Attorneys for Defendant
BY: BRIAN L. GARDNER 20 presumably questions of Mr. Torrance about other people, good
21 CHRISTOPHER TUMULTY 21 and bad?
- also present -
22 SA Roy Pollitt, FBI Case Agent 22 MR. GARDNER: Yes, your Honor.
23 Colleen Geier, Government Paralegal 23 THE COURT: All right. Anything else?
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Page 260 Page 262
1 0aldoli1 1 0aldoli1
TRIAL TRIAL
2 (Trial resumed; jury not present) 2 (Pause)
THE LAW CLERK: All rise. MR. GARDNER: Not from the defense, your Honor.
3 THE COURT: Good morning. Thank you. Be seated. 3 THE COURT: Thank you.
All right. When we left off yesterday at the end of MR. LANPHER: Not from the government, your Honor.
4 the day, we were going to review the request of the defendant 4 THE COURT: All right. We'll see if the jury is
for an introduction of the entire transcript of Mr. Olivieri's present.
5 deposition. 5 (Pause)
6 I received a letter that the government apparently had 6 MR. LANPHER: Your Honor, I just want to advise the
7 delivered yesterday during the course of the break. That 7 Court of a procedural matter?
8 letter had not come to my attention because it was brought at a 8 THE COURT: Yes.
9 time that I was not there and so I did not see it until after 9 MR. LANPHER: During Mr. Torrance's testimony this
10 the session. 10 morning, we are going to hand out copies of the full deposition
11 Now, Mr. Gardener made reference to having seen the 11 to the jurors so that they can read along as we are reading
12 letter, so I assume, Mr. Gardner, that you had sufficient time 12 certain parts of the deposition. I have handed up a copy for
13 to review that letter and respond to it? 13 the Court. I have soaken about that with defense counsel. I
14 MR. GARDNER: Your Honor, we didn't respond because it14 just wanted to let the Court know.
15 is our understanding that the government has altered their 15 THE COURT: All right. Thank you.
16 position and is agreeing to put in the entire deposition. 16 Let me also acknowledge that I received a letter from
17 MR. LANPHER: That is correct, your Honor. I think 17 the government taking exception to what the government
18 the issue is ultimately mooted. 18 characterizes as Mr. Gardner's speaking objections and raising
19 THE COURT: All right. That is fine, then. 19 matters before the jury that are improper in the context of
20 Now, on that issue, Mr. Gardner, I just wanted to make 20 making objections.
21 sure that I understand the defendant's position, because you 21 The government's points are well taken. Mr. Gardner,
22 may recall that when Mr. Torrance began to testify and the 22 the Court does not wish to curb your enthusiasm and advocacy.
23 government was going to question him about the references in 23 There are times in which objections should not immediately
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Page 263 Page 265
TRIAL TRIAL
2 contain references that may be improper for the jury. 2 Order. There has been extensive litigation on this, as you
MR. GARDNER: Yes, your Honor. Thank you. know, and defense counsel went to pains to strike any reference
3 THE COURT: All right. Apparently, we are still 3 to the prior testimony of Joseph Rizzuto from the Amicucci
missing a few jurors so we'll be back when they are all in. trial. So we think inclusion of that reference is confusing to
4 (Recess) 4 the jury and doesn't make much sense, given the prior rulings
(Time noted at 9:45 a.m., jury not present) in this Court.
5 THE COURT: Thank you. Be seated. 5 As to Mr. Torrance's response, that, too, is confusing
6 We are still missing a juror, and it appears that it 6 to the jury and we think it is prejudicial. I assume that the
7 is one of the jurors who was late yesterday as well. And so it 7 point of offering this e-mail is to get in the notion or the
8 is my intention to proceed and excuse the juror who was on two 8 statement that Ms. Bonsignore cutoff's certain questions based
9 particular days late. I could understand if it were a couple 9 on the Judge's limitation, quote: And I didn't think that I
10 of minutes but it has already been 15 minutes that we have been10 had a leg to stand on to take it to the magistrate.
11 waiting, and yesterday it was at least 10 minutes. 11 Now, again, that's a reference to Mr. Torrance's
12 I understand that the juror who is missing is 12 analysis of a redacted portion of the Judge's order that we
13 Mr. Alston. He is now seated in 12. 13 think without the full context of Judge Haight's order it is
14 And I understand that Ms. Banner had wanted to 14 confusing to the jury to have this lawyer's legal analysis in a
15 approach again, and that the parties had a matter that they 15 snippet put before the jury. It is also prejudicial and it
16 wanted to raise before we commence. 16 sounds somewhat inflammatory to have the word "no leg to stand
17 MR. LANPHER: That is correct, your Honor, a brief 17 on" when they can, of course, cross-examine Mr. Torrance as to
18 issue with regard to the cross-examination of A.U.S.A. 18 what he thought the limitations of Judge Haight's order were,
19 Torrance. 19 why he did ask certain questions, why he didn't. We frankly
20 By prior agreement, defense counsel has indicated to 20 think there is just no need for this additional e-mail which
21 us which of the 3500 material he intends to cross-examine 21 ultimately will leave the jury confused as to what exactly is
22 Mr. Torrance on, in particular, which e-mails. He has 22 going on when this is an internal communication between lawyers
23 identified two such e-mails that he intends to introduce during 23 after the fact.
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TRIAL TRIAL
2 the cross-examination of Mr. Torrance. 2 THE COURT: Thank you.
As to one, we have no objection. Essentially, it is Mr. Gardner.
3 an e-mail in which Mr. Torrance writes that Judge Haight had 3 MR. GARDNER: Yes, your Honor.
constrained them in the deposition to Olivieri's knowledge of It depends how the questioning goes, but they called
4 contacts with Mr. Moscatiello and other organized crime figures 4 Mr. Rizzuto to testify. Mr. Rizzuto testified about this
with reference to job site corruption involving District meeting that happened in 1999 or 2000, or I should say they
5 Council carpenters and -- quote -- so there may not be a lot to 5 claim to have happened in 1999 or 2000. And this is an e-mail
6 talk about. End quote. 6 from Mr. Torrance saying that that's not relevant, Rizzuto in
7 We have no objection to defense counsel offering that 7 that meeting -- that is what this is a reference to. And he's
8 e-mail. 8 saying, yes, there was an objection to me questioning about
9 It is the other e-mail that we do have an objection 9 that meeting, and I didn't think I had a leg to stand on to ask
10 to, which is an e-mail -- and I could hand up a copy, if the 10 the questions.
11 Court prefers. 11 Again, as to materiality, he is saying I couldn't have
12 THE COURT: Yes. 12 asked that question, I was not permitted, and it was outside
13 (Pause) 13 the scope of the deposition. Yet at trial counsel for the
14 THE COURT: Yes. 14 government has brought in a witness as to that very same
15 MR. LANPHER: Shall I proceed, your Honor? 15 subject.
16 THE COURT: Yes. 16 So the government is presenting that testimony as
17 MR. LANPHER: First off, I understand that defense 17 material to I guess the statement about having meetings or not
18 counsel would redact the bottom two e-mails but still leave the 18 having meetings, and yet Mr. Torrance, who is taking the
19 e-mail stating -- from Jon Kolodner, stating: "Not surprising 19 deposition, says it is not material.
20 but still did he try to explain the Amicucci trial testimony at 20 MR. LANPHER: Your Honor, just to be clear, again,
21 all or was that just a lie by the cooperator?" 21 defense counsel is construing Judge Haight's order as the
22 First off, your Honor, that e-mail itself references a 22 definition of materiality. We have had extensive briefing on
23 portion and information that was redacted from Judge Haight's 23 this. The Court has appropriately ruled that that did not
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Page 267 Page 269
TRIAL TRIAL
2 define the scope of materiality for this case. That was a 2 know sitting right here today whether that will be necessary,
discovery order. It does not reflect what was and was not but if it comes up in cross-examination we will be requesting
3 relevant to this civil RICO case. 3 that limiting instruction that we've already provided.
Again, we expect that on direct testimony we are going THE COURT: All right. Thank you. The Clerk has
4 to elicit the fact that he felt constrained as to what 4 given me a note indicating that Ms. Banner, who is Juror No. 1
questions he could ask regarding Mr. Rizzuto. I don't think and who was the one who yesterday asked the Court to approach
5 there is going to be a dispute over that. What our concern is 5 for the purposes of bringing some matters to our attention,
6 the prejudicial impact of adding this additional e-mail which 6 wishes to approach again and that she wishes to speak to the
7 takes things out of context and also has certain comments that 7 Court outside of the presence of the attorneys. I do not have
8 we just don't think are appropriate for the jury to hear. 8 any indication of what it may be and so it may be something
9 THE COURT: Last word, Mr. Gardner. 9 extremely personal. I will listen to her and see what it is.
10 MR. GARDNER: Just, your Honor, it goes to 10 And if it is something that is not entirely personal and
11 Mr. Torrance's understanding of what was material to the 11 relates to something at trial, I will share it with the
12 deposition or not. One issue as to that is Judge Haight's 12 attorneys. But if it is entirely personal, I will so indicate
13 order, obviously, but if Mr. Torrance is going to say, yes, 13 to you.
14 Rizzuto at a meeting in 1999, it was not material as to why I 14 Do you want to bring in Ms. Banner.
15 am deposing Mr. Olivieri, I think that is pretty good evidence 15 MS. ZORNBERG: Your Honor, will that be on the record?
16 for the jury to hear. And I think that is what this e-mail is 16 THE COURT: Yes, it will be on the record but it will
17 saying, and I will question him and he can explain it. 17 be redacted -- it will be sealed.
18 THE COURT: Mr. Gardner, I would not want to be in a 18 (Pages 270 through 281 sealed by order of the Court)
19 position of trying to explain to the lay jury the very nuanced 19 (Continued on next page)
20 distinction between the scope of questioning appropriate for a 20
21 determination of discovery under the federal rules as opposed 21
22 to materiality for the purposes of the substance of a charge. 22
23 I think that in a room of 100 lawyers, 99 of them may not 23
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1 0aldoli1 1 0ALZ0LI2
TRIAL (In open court; jury not present)
2 understand that distinction, let alone a jury of lay people. 2 THE COURT: Be seated.
So I would not want to open any discussion that would create (At the side bar with juror No. 1 one only present)
3 that result. 3 THE COURT: All right, Ms. Banner, I've discussed your
To that extent, if Mr. Torrance testifies about these situation with the parties and we've agreed that it would be
4 issues and they go to the question of whether or not he felt 4 best for you to be excused. Thank you.
constrained under the judge's rulings on discovery, you can 5 MS. BANNER: Thank you.
5 cross-examine him about that. But I think it would not be 6 (In open court; jury entering)
6 appropriate and would be too confusing and open up too many 7 THE COURT: All right, thank you. Be seated.
7 conceptual difficulties to introduce material that inserts into
8 All right, let me first note that we were ready to
8 the discussion this legal distinction between materiality for
9 start on time, and apparently at least one member of the jury
9 discovery purposes and for the substance of the charge here.
10 was about 15 minutes late, notwithstanding the warning I gave
10 So to the extent that you can do the cross-examination
11 the jury on the first date, and on the second day, and again on
11 without the necessity of this e-mail, I would grant the
12 the third day.
12 government's request.
13 I cannot stress more seriously to you how important it
13 MR. LANPHER: Your Honor, may I just follow up with
14 is for all of you to be here on the date and time that the
14 one point about this?
15 THE COURT: Yes. 15 court specifies.
16 MR. LANPHER: As the Court said, there is a 16 Now, we also had to deal with another matter not
17 distinction that the issue for the jury is whether the 17 related to the lateness, and that has cost us some delay. But
18 questioning and the false statements were material to the civil 18 to the extent that we're delayed because of a juror having been
19 RICO case, not whether or not they were within the scope of a 19 late, we're going to have to make up that time during the
20 discovery order. To that end, we have already provided to the 20 course of today.
21 Court a limiting instruction, should defense counsel's 21 All right, Mr. Torrance, let me remind you that you're
22 questioning confuse the issue. 22 still under oath.
23 I just wanted to remind the Court, obviously we don't 23 THE WITNESS: Yes.
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Page 271 Page 273
1 0ALZ0LI2 1 0ALZ0LI2 Torrance - direct
THE COURT: All right, Mr. Lanpher. Q. Showing you what's been marked as government exhibit 14, do
2 MR. LANPHER: Thank you, Judge. 2 you recognize that?
BENJAMIN TORRANCE, A. Yes, I do.
3 called as a witness by the government, 3 Q. What is that?
having been previously sworn, testified as follows: A. This is a transcript of the deposition of Mr. Olivieri that
4 DIRECT EXAMINATION 4 I took in December 2007.
5 BY MR. LANPHER: 5 MR. LANPHER: Your Honor, government offers government
6 Q. Mr. Torrance, good morning. 6 exhibit 14.
7 A. Good morning. 7 MR. GARDNER: No objection, your Honor.
8 Q. When we left off yesterday you were testifying about taking 8 THE COURT: Admitted without objection.
9 Mr. Olivieri's deposition? 9 BY MR. LANPHER:
10 A. That's right. 10 Q. What was the date on that deposition?
11 Q. Remember that? 11 A. December 18th, 2007.
12 A. Yes. 12 MR. LANPHER: Your Honor, at this time could we
13 Q. And just to reorient the jury, when was that deposition? 13 distribute copies of the deposition transcript to the jury?
14 A. December 2007. 14 THE COURT: Yes.
15 Q. Could you remind the jury what was going on in the Civil 15 Q. Okay. Now Mr. Torrance, if you can take a look at page one
16 RICO case in December of 2007? 16 of the deposition.
17 A. There's always the overarching issue of whether there's 17 MR. LANPHER: And, ladies and gentlemen of the jury
18 corruption in the Union. More specifically, we had the Union's 18 follow along.
19 motion to get rid of the consent decree because they cleaned 19 Q. Now, this states on page one, Deposition of Joseph Olivieri
20 up. 20 taken by plaintiff at the Offices of United States Attorney's
21 We had the motion to replace William Callahan, who was 21 Office, 86 Chambers Street, New York, New York. Is that down
22 an investigator at the time. And then we had the proceedings 22 here in Lower Manhattan?
23 about contempt of court which revolved around the changes to 23 A. Yes. That's my office.
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1 0ALZ0LI2 Torrance - direct 1 0ALZ0LI2 Torrance - direct
the job referral rules and the 50-50 rule. Q. And plaintiff, what is that in reference to?
2 Q. And you testified that the opportunity to depose 2 A. The plaintiff in this case is the United States Government.
Mr. Olivieri came up specifically in that contempt proceeding? Q. And this, the top half of page one, that's the caption for
3 A. Yes. 3 the civil RICO case?
Q. And what was it that prompted the opportunity to depose A. That's right.
4 Mr. Olivieri? 4 Q. Now, was Mr. Olivieri represented by counsel at this
5 A. Well, Mr. Olivieri put in an affidavit in support of the 5 deposition?
6 Wall Ceiling Association's papers saying, you know, the job 6 A. Yes, he was.
7 referral issue should not be changed, it would not be fair to 7 Q. If you take look at page two and three, what is listed on
8 make the job referral more stricter and impose a cost on the 8 pages two and three of the deposition transcript?
9 Wall Ceiling Association, because the Wall Ceiling Association, 9 A. These are the all the lawyers who were at the deposition.
10 and specifically Mr. Olivieri, was dedicated to eradicating 10 Q. And who is the lawyer for Mr. Olivieri?
11 corruption and was taking steps to do that. 11 A. It's the last lawyer listed, Ms. Bonsignore.
12 Q. And so in that deposition you wanted to ask him questions 12 Q. It states there "James Olivieri." Is that just a typo?
13 about various subjects? 13 A. That appears to be, yes, a typo. She was, she was Joseph
14 A. Yes, that's right. 14 Olivieri's lawyer.
15 Q. Including his, I believe you testified yesterday that 15 Q. Now, was Mr. Olivieri placed under oath prior to this
16 wanted to ask him questions about Mr. Moscatiello and Mr. 16 deposition?
17 Murray? 17 A. Yes, he was.
18 A. Yes. 18 Q. Now, I'd like to turn to page five of the deposition
19 Q. As well as questions about the request system. 19 transcript and read alloud a portion of this deposition
20 A. Yes. 20 transcript to the jury.
21 Q. Mr. Torrance -- 21 And, Mr. Torrance, if you could read the portions
22 MR. LANPHER: May I approach, your Honor? 22 where you were speaking, and I will read the portions where
23 THE COURT: Yes. 23 Mr. Olivieri was speaking. If you could read question and then
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Page 275 Page 277
read what you said, and I will read answer and read what Q. Now, you've already -- well, one second. You're advised
2 Mr. Olivieri said. 2 here by counsel here today, is that correct?
If you could start at page five and we'll go through A. Yes.
3 the next few pages? 3 Q. And your counsel is Ms. Bonsignore, is that right?
A. All right. A. Ms. Bonsignore and Ms. Weiss.
4 Q. Good morning, Mr. Olivieri, my name is Benjamin Torrance. 4 MR. LANPHER: Then there is a line that where
5 I'm an Assistant United States Attorney in the Southern 5 Ms. Weiss speaks. Could you skip down to line six.
6 District of New York. We represent the United States of 6 Q. Just to clarify, Ms. Bonsignore represents you personally?
7 America, which is the plaintiff in a lawsuit against the 7 A. Yes.
8 District Council of Carpenters. 8 Q. And Ms. Weiss represents the Association of Wall-Ceiling?
9 As you know, I'm here to ask you a series of questions 9 A. Yes.
10 today at this deposition. Do you understand, Mr. Olivieri, 10 Q. Now, you stated your name for the record. Are you known by
11 that you are under oath and that you have sworn to tell the 11 any other names?
12 truth? 12 A. No.
13 A. I do. 13 Q. Do you have any nicknames that you use?
14 Q. As I said, I'm going to ask you a series of questions. If 14 A. No.
15 at any time you do not hear my question, please tell me and I 15 Q. Are you ever known as Rudy?
16 will repeat it. Otherwise, I will assume you have heard it. 16 A. Yes.
17 Do you understand that? 17 Q. Are you currently employed?
18 A. Yes, I do. 18 A. Yes.
19 Q. And at any time if you do not understand my question, 19 Q. Where are you employed?
20 please ask me to -- please tell me that and I will clarify it. 20 A. Association of Wall-Ceiling and Carpentry Industries.
21 Otherwise, again, I will assume that you understood the 21 MR. LANPHER: Now, Mr. Torrance, I'm going to -- we're
22 question. Is that clear? 22 going to skip a bit and ask you to turn to page 38.
23 A. Yes. 23 Could you start reading from page 38, line 17.
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Page 276 Page 278
Q. For the purposes of keeping a clean record, please wait Q. All right. Is there anyone at the Wall-Ceiling Association
2 until I finish my questions before answering so that our Court 2 whose job it is to interact with the District Council?
Reporter can get down both the question and the answer. Do you A. I am the liaison between my association and the District
3 understand that? 3 Council.
A. Yes. Q. Is anyone else also a liaison?
4 Q. And you also must give a verbal response to questions as 4 A. Only if it is required that a special meeting is called
5 opposed to a nod order or shake of the head or mm-hm so that, 5 where participants from the board will attend. That's usually
6 again, we can have a good if record. Do you understand that? 6 the case.
7 MR. LANPHER: Your Honor, I'm just going to pause for 7 Q. What kind of special occasion would warrant that kind of
8 a moment. One juror has indicated their binder has a blank 8 meeting?
9 page. If I can substitute one of the extra binders that we 9 A. We recently were putting together a certification program.
10 have. 10 So the District Council had asked us to put together a group
11 A. Yes. 11 that would meet to discuss that particular certification
12 Q. If at any time you want to take a break, just let me know. 12 program with the director of the technical school. That's an
13 We can break as many times as you want, except while the 13 example.
14 question is pending. Do you understand that? 14 Q. Do you have any role with the District Council Benefit
15 A. Yes. 15 Funds?
16 Q. All right. Now have you taken any medication or any other 16 A. As part of our trust agreement we are allowed to have one
17 drug today that might interfere with your ability to understand 17 representation, one seat on the Trustees for the management
18 and respond to my questions today? 18 side of the Benefit Funds, and I sit as the representative. I
19 A. No. 19 was assigned by the board of directors to fulfill that
20 Q. Is there any other reason you believe you could not testify 20 position.
21 truthfully an accurately today? 21 Q. How long had you been a Trustee of the Benefit Funds?
22 THE WITNESS: That should read "and" accurately. 22 A. I've been a Trustee since early 1990, I think April, May,
23 A. No. 23 something like, something to that effect.
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MR. LANPHER: Now please skip to the next page or I Q. What are the six associations or six employer -- withdrawn.
2 will skip the next page, at line three, Mr. Olivieri says 2 Do the other five employer side trustees represent employer
answer. associations?
3 A. Oh, I'm sorry, 2000. 3 A. Yes.
Q. Early 2000? Q. Which employer associations?
4 A. I wasn't even there in 1990. Sorry. 4 A. Floor Coverers BCA.
5 Q. That's all right. Since early 2000, have you been a 5 Q. That's the Building Contractors Association?
6 Trustee continuously? 6 A. Cement.
7 A. Yes, I've been a Trustee continuously. 7 Q. The Cement League?
8 Q. Who was the Wall-Ceiling Association's Trustee for the 8 A. Cement league, the scaffolding and the millwork.
9 District Council Benefit Funds before you? 9 Q. All right. Now, you said you have a duty to the
10 A. I think it was Arthur Johansen. 10 participants. First of all, who are the participants in the
11 Q. And who is Arthur Johansen? 11 Plan?
12 A. He owned a company called Nastasi White. 12 A. Can I just go back one second? I think it's woodworking,
13 Q. Can you spell that, please? 13 not millwork. It's a specialty wood product. It's called the
14 A. N-a-s-t-a-s-i, White, W-h-i-t-e. 14 MWA.
15 Q. Was he also an officer of the Wall-Ceiling Association? 15 Q. Okay.
16 A. He was an officer of the Wall-Ceiling Association. 16 A. I'm sorry.
17 Q. What office did he hold? 17 Q. You said you had a duty to the participants in the Plan.
18 A. He may have been the president at the time when he sat. 18 What do you mean by participants in the Plan?
19 Q. Do you know how long Mr. Johansen was the Trustee for the19 A. Our responsibility is to ensure that the various funds are
20 District Council Benefit Funds? 20 running properly, and that any changes to those plans do not
21 A. I think approximately three to four years. 21 affect the carpenters, working carpenters, who are the
22 Q. Do you know who was the Trustee for the Wall-Ceiling 22 participants of the plans and plan in the derogatory manner.
23 Association to the Benefit Funds before Mr. Johansen? 23 Q. Are you a fiduciary as a Trustee?
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A. It was Thomas Nastasi. A. I am a fiduciary.
2 Q. And who is Thomas Nastasi? 2 Q. What does that mean to you?
A. He was an owner of Nastasi-White. A. That my responsibility is to the working carpenters, not to
3 Q. And was he an officer of the Wall-Ceiling Association? 3 my contractors.
A. He was an officer of the Wall-Ceiling. Q. So you're a fiduciary to the Plan participants, is that
4 Q. And what office did he have? 4 right?
5 A. I'm not sure at the particular time, because at that time I 5 A. Yes, I am.
6 was just coming into the Association, so I'm not sure exactly 6 Q. And that, and does that also give you a duty to safeguard
7 what position he held back in those days. 7 the assets of the various funds?
8 Q. Was Mr. Nastasi the Trustee for the Wall-Ceiling 8 A. Yes, it does.
9 Association at the time you became Executive Director? 9 Q. Does being a fiduciary give you a duty to prevent fraud
10 A. Yes. 10 against the various funds?
11 MR. LANPHER: And you can skip down to line 12. 11 A. Yes, it does.
12 Q. He was the one at the time you became Executive Director? 12 Q. Does being a fiduciary give you a duty to report fraud that
13 A. Yes. 13 you know about that's being committed against various funds?
14 Q. What are your duties and responsibilities as a Trustee to 14 A. Yes, it does.
15 the District Council Benefit Funds? 15 Q. Had you ever had any training or education as to what it
16 A. I have a duty to the participants of the Plan, and we have 16 means to be a fiduciary?
17 a six member board that meets every couple of months and just 17 A. I attended the International Foundation. They have
18 votes on items that affect the participants of the Plan. 18 seminars on becoming a trustee and what your responsibilities
19 Q. That six-member board, that's half from the Union and half 19 are.
20 from employers, is that right? 20 MR. LANPHER: Now, Mr. Torrance, at that point I'm
21 A. No. Six management members. 21 going to ask you to stop reading for the next --
22 Q. Six management members. So also six Union members? 22 Q. Well, first, in this deposition did Mr. Olivieri
23 A. Yes. 23 distinguish between the fiduciary responsibilities of a
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Page 283 Page 285
management Trustee versus a union Trustee? Q. Can you say if you met him --
2 A. No, he did not. 2 MR. LANPHER: Now, do you want to skip down to line
Q. Now, for the next hundred or so pages of this deposition, 25.
3 what topics, in general, did you cover with Mr. Olivieri? 3 Q. Can you say whether you met Mosciatello, Sr. before Ronald
A. In general, I was discussing with him, asking him questions Regan was elected President?
4 about the negotiations that led to the 2001 and 2006 Collective 4 A. What year was that?
5 Bargaining Agreements, and specifically about how the request 5 Q. 1980.
6 system was mentioned in those negotiations. 6 A. I don't really know. I can't try to presume that I, what
7 Q. Later in the deposition did you turn to questions about 7 date, because it goes back so many years. I have no idea if I
8 Louis Mosciatello? 8 did or if I didn't at what point.
9 A. Yes, I did. 9 Q. Can you recall where you were working when you met
10 Q. Okay, I would like you to turn to page 164, Mr. Torrance. 10 Mosciatello, Sr.?
11 Let's start reading at page 164, line 15. 11 A. No.
12 Q. Do you know Louis Mosciatello, Sr.? 12 Q. Can you recall where you were when you first met him?
13 A. Yes, I know Louis Mosciatello, Sr. 13 A. No.
14 Q. How do you know him? 14 Q. Where physically did you meet him?
15 A. He lived in my neighborhood. 15 A. No.
16 Q. How did you meet him or -- withdrawn. When did you meet 16 Q. Was it around the neighborhood?
17 him? 17 A. I can't tell you.
18 A. I don't recall exactly when I met him. 18 Q. When is the last time you spoke to Louis Mosciatello, Sr.?
19 Q. Approximately? 19 A. I haven't seen him for a few years.
20 A. Well, his son was dating my sister-in-law when I first got 20 Q. How many is a few?
21 married, that was about 27 years ago, and his daughter went to 21 A. Four or five.
22 school with my sister-in-law. Other than that, I really don't 22 Q. When you did see him more than four or five years ago, how
23 know exactly when I first met him. 23 often did you meet with him?
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Q. Is it fair to say you've known Louis Mosciatello, Sr. more A. I never met with him.
2 than 27 years? 2 Q. How often did you speak to him?
A. I'm not positive when I met him. I know I met his son back A. Occasionally if I saw him around.
3 then and his daughter, but I'm not positive when I met him. 3 Q. Where would you see him around?
Q. And his son, you're referring to Louis, Jr.? A. Neighborhood, bank, diner, anywhere.
4 A. Yes. 4 Q. So four or five years ago, and he still lived in the same
5 Q. Well, can you say -- did you meet Louis, Sr. more than 20 5 neighborhood; is that right?
6 years ago? 6 A. No. But my mother lives in Pelham Bay still, so I always
7 A. I can't say. Well, I could say that I -- let's see. Well, 7 go to see my mom.
8 he lived in the neighborhood, so I'm sure I saw him in the 8 Q. And at that time Louis Mosciatello, Sr. also lived in
9 neighborhood at some point, but I'm not surely exactly when. 9 Pelham Bay?
10 Q. What neighborhood are we talking about? 10 A. He lived in the area, Pelham Bay Country Club area.
11 A. I lived in Pelham Bay when I was young. 11 Q. Besides just seeing him around the neighborhood, did you
12 Q. So when you say he lived in the neighborhood, you're 12 ever have a relationship where you would make arrangements to
13 talking about the neighborhood you grew up in? 13 see him?
14 A. Yes, the neighborhood I grew up in. 14 A. No, I never made arrangements to see him.
15 Q. So is it fair to say you've known Louis, Sr. since before 15 Q. And by that I mean at any time during the time you knew
16 college, before you went to college? 16 him, you never --
17 A. Before college, no, no. It doesn't have to be before 17 A. I don't recollect ever making a meeting with him.
18 college. 18 Q. And do you recollect ever either asking him or him asking
19 Q. And you said you graduated college in '76, is that right? 19 you to go to dinner or lunch or anything like that?
20 A. Yes. 20 A. No, I don't recollect ever doing that.
21 Q. So do you recall if you met Louis Mosciatello, Sr. within 21 MR. LANPHER: Now, Mr. Torrance, in the next couple of
22 five years of graduating college? 22 pages did you ask Mr. Olivieri some questions about Mr.
23 A. I really can't -- I can't say. 23 Moscatiello's son.
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A. Yes. you recall any such conversations?
2 MR. LANPHER: Let's skip forward to page 171, at line 2 A. Not to my recollection.
15. Q. So did Louis Mosciatello, Sr. ever indicate to you that he
3 Q. With respect to Louis Mosciatello, Sr., did you ever 3 was aware of a company that was violating its collective
discuss with him anything relating to the District Council of bargaining agreement?
4 Carpenters? 4 A. No, he never spoke to me about any company.
5 A. I don't recall ever talking to him about anything to do 5 Q. Did Louis Mosciatello, Sr. ever speak to you in your
6 with the District Council of Carpenters. 6 capacity as Executive Director of Wall-Ceiling?
7 Q. Do you know what business Louis Mosciatello, Sr. was in? 7 A. No, he never --
8 A. Insurance, I think. 8 Q. Go ahead.
9 Q. Did he have anything to do with the construction industry? 9 A. Could you repeat it?
10 A. Not to my knowledge. 10 Q. Did Louis Mosciatello, Sr. ever discuss anything with you
11 Q. Do you know if he ever held office with the Union? 11 in your capacity as Executive Director of Wall-Ceiling
12 A. Not to my knowledge. 12 Association?
13 Q. Do you know if he ever held office with Local 530? 13 A. He never did. I don't recall ever talking to him about it.
14 A. I'm not sure. I'm not sure if he ever had office at 530. 14 Q. So did you ever discuss with Louis Mosciatello, Sr.
15 Q. Do you know if he ever was associated with a contracting 15 anything to do with the business in which Wall-Ceiling
16 company that did work in the construction industry? 16 Association members are engaged?
17 A. Not to my knowledge. 17 A. I don't recall ever having a discussion.
18 Q. Did you ever have any discussion with Louis Mosciatello, 18 Q. Did Louis Mosciatello, Sr. ever ask or instruct you to
19 Sr. relating to the District Council Benefit Funds? 19 allow a company to violate the District Council's CBA?
20 A. I never talked to him about the Benefit Funds. 20 A. Me?
21 Q. Did you ever discuss with Louis Mosciatello, Sr. any 21 Q. Yes.
22 company that employed District Council Carpenters? 22 A. I never discussed anything like that with Louis
23 A. I don't recall ever talking about any companies. 23 Mosciatello. I couldn't do anything, that's a union issue.
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Q. When you saw him, what did you discuss? Q. Did Louis Mosciatello ever ask or instruct you to assist
2 A. How's the family, what's new. 2 the company to violate its collective bargaining agreement?
Q. Did you ever discuss any kind of business with him? A. I never had any discussions with Lou.
3 A. Not to my knowledge or recollection. 3 Q. Did Louis Mosciatello, Sr. ever ask or instruct you to
Q. Did you ever discuss with Louis Mosciatello, Sr. the allow a company to work on a particular job site?
4 obligation of a company to adhere to the terms of its 4 A. I don't get -- excuse me. I don't get involved with job
5 collective bargaining agreement? 5 sites.
6 A. I don't recall ever talking to him about it. 6 Q. Is that a no?
7 Q. Did you ever discuss with him obtaining any special 7 A. That's a no.
8 treatment for a company that employees District Council 8 MR. LANPHER: Let's stop at that point.
9 Carpenters? 9 BY MR. LANPHER:
10 A. I never discussed anything about special treatment, sir. 10 Q. Mr. Torrance, if Mr. Olivieri had told you that he in fact
11 Q. Did you ever discuss with Louis Mosciatello, Sr. whether 11 had had a business relationship with Mr. Moscatiello, how would
12 any company that employed District Council Carpenters was 12 that have impacted what the government did in the civil RICO
13 violating its collective bargaining agreement? 13 case?
14 A. I never had any recollection of any discussions with him 14 A. IT would have had a -- it would've had an enormous impact
15 about anything to do with the carpenters. 15 on what we did.
16 Q. Did you ever discuss with Louis Mosciatello, Sr. any of the 16 Q. Could you explain that?
17 practices that I listed earlier today, paying workers off the 17 A. It was relevant to all the issues that were before the
18 books, paying workers in cash, employing non-union carpenters,18 court at that time.
19 anything like that? 19 First of all, the job referral rules and whether they
20 A. I never had, recall any discussions with him about anything 20 should be strengthened. And as I said earlier, the
21 like that. 21 Wall-Ceiling Association's position, their argument was that
22 Q. Did you ever have any conversations with Louis Mosciatello 22 they, it would be unfair to strengthen the job referral rules
23 about anything to do with the construction industry at all; do 23 because they hadn't done anything wrong, and it would cost them
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1 0ALZ0LI2 Torrance - direct 1 0ALZ0LI2 Torrance - cross
money. BY MR. GARDNER:
2 If we were able to say the top guy in the Wall-Ceiling 2 MR. GARDNER: May I, your Honor?
Association has a relationship with the captain in the Genovese THE COURT: Yes.
3 family, that would be something we would immediately go to 3 MR. GARDNER: Thank you.
court and say it completely undercuts their argument that they Q. Good morning, Mr. Torrance. My name is Brian Gardner. I
4 didn't do anything wrong, that they're dedicated to eradicating 4 represent Joseph Olivieri.
5 corruption. 5 A. Good morning, Mr. Gardner.
6 It's also relevant to the District Council of 6 Q. I think when you began yesterday you said you were
7 Carpenters, their application to get rid of the consent decree 7 currently assigned to the Appeals Bureau?
8 altogether, if we were able to say to the Judge, a Trustee of 8 A. I am a supervisor in the Appeals, but I also keep my own
9 the Benefit Funds who himself is subject to the consent decree 9 cases.
10 is associating with a member of organized crime in violation of 10 Q. How long have you been in the Appeals Bureau?
11 the consent decree, that would again be immediately relevant 11 A. On a permanent basis about a year about. Before that I was
12 not only to the overarching issue of whether there's still 12 six months as an acting supervisor.
13 corruption in the Union, but to the District Council's claim 13 Q. When you took Joseph Olivieri's deposition, it was not in
14 that they had cleaned everything up and gotten rid of organized 14 your capacity in the Appeals Bureau at all, was it?
15 crime. 15 A. That's correct.
16 Q. Now, Mr. Torrance, later in the deposition did you ask 16 Q. And when you took his deposition, it was -- it was not in a
17 questions about Mr. Olivieri's relationship with James Murray? 17 courtroom like this, was it?
18 A. Yes, I did. 18 A. No.
19 Q. And if you take a quick look at the transcript government, 19 Q. It was in a conference room?
20 exhibit 14 at pages 184 to 210. Is that the section of the 20 A. That's right.
21 deposition where you were asking questions about James Murray? 21 Q. Did anybody else from the U.S. Attorney's Office attend?
22 A. Yes. 22 A. My colleague and the paralegal came in and out, my
23 Q. I'm not going to ask you to read that alloud at this point, 23 colleague from the Civil Division.
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1 0ALZ0LI2 Torrance - direct 1 0ALZ0LI2 Torrance - cross
but at the time, in general terms, what kinds of things did you Q. What was that colleague's name?
2 ask Mr. Olivieri? 2 A. Kristin Vassallo.
A. I asked him what his relationship was with Jim Murray, Q. Prior to taking Mr. Olivieri's deposition, I think you
3 asked him if he had business dealings with Jim Murray. 3 testified there was some litigation concerning what you could
Q. And could you describe, in general, how Mr. Olivieri ask and what you couldn't ask?
4 answered? 4 A. That's right.
5 A. Essentially he said no. 5 Q. Okay. And that was before Judge Haight?
6 Q. And if Mr. Olivieri had told you that he had various 6 A. Yes.
7 business relationships with James Murray in that deposition, 7 Q. And did you have communications with Mr. Olivieri's
8 how would that have affected the Government's position in the 8 counsel, Michelle Bonsignore, prior to the deposition about
9 civil RICO case? 9 what the deposition would include and what it wouldn't include?
10 A. That also would have been very important to us. 10 A. Yes.
11 Jim Murray had been indicted for committing large 11 Q. Okay. And initially was there a dispute between the two of
12 scale fraud against the Benefit Funds. So to the extent that 12 you?
13 Mr. Olivieri had a relationship with him, had a business 13 A. There was.
14 relationship with him and, you know, some sort of back and 14 Q. Did that get resolved?
15 forth between them, we would've -- that would be, that would 15 A. Yes, it did.
16 have had an impact on your argument that, you know, he's 16 Q. Was it your understanding that when Mr. Olivieri appeared
17 involved with a fraudster so it would've been very important to 17 for the deposition, he was ware of Judge Haight's order and he
18 us. 18 was aware of why he was being deposed?
19 MR. LANPHER: May I have a moment, your Honor? No 19 A. I don't know whether he was aware of Judge Haight's order.
20 further questions. 20 I believe he was aware of why he was being deposed.
21 THE COURT: Mr. Gardner. 21 Q. And do you recall during the deposition there was a
22 MR. GARDNER: Thank you, Judge. 22 conversation about that, and in even in the sense that he was
23 CROSS EXAMINATION 23 there regarding contempt proceeding?
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1 0ALZ0LI2 Torrance - cross 1 0ALZ0LI2 Torrance - cross
A. He was, he was asked -- I'm not sure I follow you. I'm Q. Because the Association had come in and said it would
2 sorry. 2 adversely effect their members if the request system wasn't
Q. Okay. Do you recall asking a question and his response used?
3 being, yes, I know I'm here because there was a contempt 3 A. Correct.
proceeding and I'm here to testify? Q. Okay. But what I'm asking you is that at the time of
4 A. Yes, yes, I do recall that, yes. 4 Mr. Olivieri's deposition as to that action, which I guess was
5 Q. Now, a little bit more of the history of the civil action. 5 filed in 1990, right?
6 The consent decree was in 1994, correct? 6 A. Yes.
7 A. Yes. 7 Q. Okay. Now we're into 2007, seven years later and what's
8 Q. And when we say consent decree, that's because the 8 before the Court at that time is not is there a contempt. It
9 government and the Union agreed to that document that's been 9 had already found contempt, right?
10 placed in evidence? 10 A. Yes.
11 A. Yes. 11 Q. So the issue before the Court at that time is what contempt
12 Q. Were the Funds a member of that consent decree agreement? 12 remedy to put in place?
13 A. Well, Judge Haight ruled that they were in effect. 13 A. That's right.
14 Q. Right. 14 Q. Okay. And the split in argument is that the U.S.
15 A. In 1996 he ruled that they were. 15 Attorney's Office is taking a position that, go back to the 50,
16 Q. So in 1994 when the consent decree is issued, the Funds are 16 straight 50-50 rule and the Associations are taking the
17 not part of that? 17 argument that the request system should be in place?
18 A. No. Judge Haight's ruling said that as of the negotiations 18 A. That's -- yeah, that's essentially right, yes.
19 over the consent decree, they had been represented leading up 19 Q. And it wasn't just the Wall & Ceiling that had taken that
20 to that, and so they were bound from the beginning. 20 position. It was a number of Associations who had taken the
21 Q. Okay. So in 1996 he said that will apply to them? 21 position that the 50-50 rule adversely impacted contractors and
22 A. Yes. 22 a request system was fairer to contractors, correct?
23 Q. Now, then you said in 2001 -- and we had a graph put up 23 A. Yes.
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about what monitors are independent, what are they called, Q. And some of those Associations are very large, right?
2 independent investors? 2 A. I don't know what very large is, but they're major, they're
A. Yes. major employer Associations.
3 Q. Okay. What independent investors were present. We talked 3 Q. The General Contractors Association?
about Walter Mack, right? A. They came in and they opposed, yes.
4 A. Yes. 4 Q. When you say opposed, you mean they took the same position
5 Q. And in 2001 -- I want to make sure you get the timing 5 as the Wall & Ceiling Association?
6 right -- in 2001 it's your position that the Union, through its 6 A. That's right.
7 agreements on the CBA, changed the 50-50 rule? 7 Q. Have you read the indictment?
8 A. Yes. 8 MR. LANPHER: Objection, your Honor.
9 Q. And they went to a request system? 9 THE COURT: Sustained.
10 A. Yes. 10 Q. After taking Mr. Olivieri's deposition, did you speak with
11 Q. And then the Department of Justice U.S. Attorney's Office 11 Ms. Zornberg concerning it?
12 was made aware of that in '04? 12 A. I'm sorry, concerning?
13 A. Approximately '04, yes. 13 Q. The deposition?
14 Q. And then there was some proceedings. And then in '07, 14 A. Yes.
15 you're at the end of the 2007 you were in a room taking 15 Q. Are you aware, prior to testifying today, that Mr. Olivieri
16 Mr. Olivieri's deposition, but not regarding those topics, 16 was indicted for perjury?
17 generally regarding the contempt sanction or remedy against the17 A. Yes.
18 Union for going back to a request system? 18 Q. And regarding the deposition that you were just going
19 A. It was the contempt proceeding that led to the deposition. 19 question and answer with Mr. Lanpher, correct?
20 The Associations came into the proceeding to say that they 20 A. Yes.
21 would basically feel the pinch from what we were asking for, 21 Q. And prior to the deposition, had you spoken to Ms. Zornberg
22 and so they had come in. So it wasn't just against the Union. 22 as well concerning the deposition?
23 It was also against the Association at that point. 23 A. Yes.
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Page 299 Page 301
Q. And Ms. Zornberg at that time was in the Criminal Division A. That's right.
2 I think you said? 2 Q. Can you tell me your understanding of what Judge Haight was
A. That's right. restricting the testimony to?
3 Q. But Ms. Zornberg was also previously in the Civil Division, 3 A. He was basically saying we could ask Mr. Olivieri about
right? knowledge of organized crime figures or contacts with organized
4 A. That's right. 4 crime figures, as long as it was tied to corruption of the job
5 Q. And when she was in the Civil Division, she handled the 5 site, and I earlier described that that meant paying workers
6 civil matter against the District Council, correct? She was 6 off the books, bribing shop stewards, false reports, and also
7 not solely, but she was one of the attorneys involved in the 7 had to be tied to the District Council of Carpenters.
8 civil action that we're discussing against District Council, 8 Q. So it has to do first with Olivieri's knowledge?
9 correct? 9 A. It has to do with his knowledge and contacts, yes.
10 A. Yes. 10 Q. And when you say his knowledge and contacts, it's with --
11 Q. But you, in discussing with her the deposition of 11 and they actually state Lou Mosciatello by name, right?
12 Mr. Olivieri now before the deposition, didn't just question 12 A. Or other -- yes, his name, and then or other organized
13 her regarding that role, but you questioned her about whether, 13 crime figures.
14 what you should ask on a number of topics, correct? 14 Q. Right. And it says or other organized crime figures. But
15 A. I wouldn't say that I questioned her, but she and I 15 not just generally, Judge Haight specifically only with
16 discussed the background of Mr. Olivieri in general. 16 reference to the corruption of the job site, which we talked
17 Q. Okay. Is it your understanding that she was familiar with 17 about, involving District Council membership, right, Carpenters
18 Judge Haight's order? 18 that belong to District Council, right?
19 A. The consent decree? 19 A. Yes.
20 Q. No, no, I'm sorry. Judge Haight's order regarding the 20 Q. Now, Jim Murray, Jim Murray one is obviously not Lou
21 topic that Mr. Olivieri can be questioned on? 21 Mosciatello and, two, I think maybe you said you had a reason
22 MR. LANPHER: Objection, your Honor. 22 to believe that he may be somehow related to organized crime?
23 THE COURT: Overruled. 23 A. At the time we did have reason to believe that, yes.
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Page 300 Page 302
A. I -- at some point she got a copy of that order. Q. As we sit here today, do you believe Jim Murray to be an
2 Q. Now, that order -- I think you have it -- do you still have 2 organized crime figure?
the documents in front of you? MR. LANPHER: Objection, your Honor.
3 A. I do not. 3 THE COURT: Rephrase the question.
Q. Okay. Q. Do you have an understanding that Jim Murray is an
4 MR. GARDNER: May I approach the witness, your Honor? 4 organized crime figure?
5 THE COURT: Yes. 5 A. My understanding today is, is that he's not.
6 A. Thank you. 6 Q. In December of 2007 -- well, let me withdraw that question
7 (Handing) 7 first.
8 MR. GARDNER: Your Honor, I believe this is in 8 So if we were taking his deposition, if we were taking
9 evidence as 9R. 9 Mr. Olivieri's deposition today, you would not ask any
10 Q. And I'd ask Mr. Torrance to turn to page 12, which is the 10 questions about Jim Murray, correct?
11 last page with any writing on it before Judge Haight's 11 A. If this order were still in effect, I think that's, that's
12 signature. Do you see that? 12 likely correct, yes.
13 A. I see it. 13 Q. So in 2007, I should say December 2007, what led you to
14 Q. That what you understood to be the portion where Judge 14 believe or have the idea that Jim Murray was, as it states, an
15 Haight was saying what you could take the dep regarding? 15 organized crime figure?
16 A. It -- yes, qualified by there had been an earlier June 16 A. I had had conversations with the criminal prosecutors and
17 order that also set out other subject areas, particularly the 17 with the agents from the Department of Labor and the FBI, and
18 fact of the negotiation leading to the collective bargaining 18 we had discussed a suspicion that Mr. Murray's, on the one
19 agreement, the economic harm that had -- Judge Haight had 19 hand, large scale fraud that he was committing, and on the
20 specified those subject matters in June. This adds to that. 20 other hand the very quick rise that his company had through the
21 Q. Okay. This was the result of the government going to Judge 21 industry going from a very small player to a large player in a
22 Haight and saying we're too restricted, we'd like to ask some 22 short amount of time, at the same time that he was committing
23 more questions, right? 23 all this fraud. That led to suspicions that he had some help
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Page 303 Page 305
from organized crime or was himself associated with organized THE COURT: Sustained as to form.
2 crime. 2 Q. I'll ask more directly. In December of 2007, did you have
Q. Well, contact -- that wouldn't make him an organized crime any belief that Lou Mosciatello was still involved in -- well
3 figure, would it, himself? 3 not still, let me rephrase that as well, your Honor.
A. If he was an associate of organized crime, I think it In December of 2007, did you have any understanding
4 would, yes. 4 that Lou Mosciatello was, in any way, impacting the District
5 Q. How in what you just described provides information he was 5 Council?
6 an associate of organized crime? 6 A. He could well have been. Being in jail does not always
7 A. As I said, it was a suspicion. It was reason to believe. 7 stop Mafia connected guys from continuing their operations.
8 We didn't have solid proof that he was an organized crime 8 And I actually had knowledge that Mr. Moscatiello, himself, had
9 associate, but we had -- we suspected that he might be. 9 some history of running a Union from prison.
10 Q. And the suspicion was solely based on the fact that he's 10 Q. At the time you're taking Mr. Olivieri's deposition, did
11 got a construction company and that construction company was 11 you have any knowledge that Lou Mosciatello was involved in
12 succeeding quickly? 12 running things or trying to run things from prison?
13 A. And committing massive fraud. 13 A. Directly, no.
14 Q. The massive fraud being -- I don't know if you were in the 14 Q. And you didn't have any information in December of 2007,
15 room when there was a chain of people that were put up, but it 15 that when I think it was just read, when Mr. Olivieri said he
16 had a list of shop stewards, business agents, business manager,16 hadn't spoken to Louis Mosciatello I think he said three or
17 and then the Executive Director or E.T.S. executive of the 17 four years or four or five whatever it says in the deposition,
18 Union, those people being paid off, that's the fraud you're 18 you didn't have any reason to believe that that wasn't true, do
19 talking about? 19 you?
20 MR. LANPHER: Objection, your Honor. 20 A. I didn't have specific information contradicting that.
21 THE COURT: Sustained. 21 Q. Okay. Well, jails keep records of visitors, correct?
22 Q. Other than large scale fraud, and other than the he had a 22 A. I presume so.
23 construction company that was growing quickly, any reason to 23 Q. Okay. And they keep record of even telephone
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believe that he was an organized crime figure? conversations; in fact, they even record the conversations,
2 A. For myself? 2 correct?
Q. Yes. A. This is getting outside my area of expertise.
3 A. No. 3 Q. Well, in your conversations with the U.S. Attorney's Office
Q. Now, prior to taking the deposition, did you do any on the Criminal Division, anybody indicate to you that
4 background checking into Lou Mosciatello? 4 Mr. Olivieri was having a continuing relationship with Lou
5 A. I had conversations again with criminal prosecutors and the 5 Mosciatello while Lou Mosciatello was in jail?
6 agents about Mr. Moscatiello. 6 A. No, I didn't hear that.
7 Q. And in December of 2007, you were aware that Lou 7 Q. Now, when you're asking questions of Mr. Olivieri about Lou
8 Mosciatello was in jail? 8 Mosciatello, when he first -- you asked a series of questions
9 A. Um, probably. It's the time line that confuse me, but. 9 about when you first met him, correct?
10 Q. Okay. But you're aware he -- you were aware that he, in 10 A. Yes.
11 the middle of, towards the end of 2000 of, you know, 2005 to 11 Q. At that deposition did you have, you, the understanding,
12 the end of that decade, he was incarcerated? 12 based upon the testimony from Joseph Olivieri, that he was
13 A. Yeah, and actually the more I think about it, in 13 telling you he's known Lou Mosciatello for a very long time?
14 December 2000 I think I can say yes, I knew he was in jail. 14 MR. LANPHER: Objection, your Honor.
15 Q. Did he pass away in jail? 15 THE COURT: Overruled.
16 A. He passed away. I don't know exactly where. 16 A. Yes.
17 Q. Do you know when? 17 Q. And he even -- I don't know, I think we -- this portion I'm
18 A. Within the last couple of years. 18 not sure if it was read, but he even told you that there was
19 Q. So if Lou Mosciatello is in jail and you're trying to 19 some family relationship, right; his, I think it was his
20 figure out what contempt sanctions or what difficulty the Union 20 sister-in-law dated Lou Mosciatello, Jr. and some of the kids
21 is having presently, Lou Mosciatello is not any longer involved 21 went to the same school, that kind of thing?
22 in those corrupt activities, correct? 22 A. The first part I recall him saying. I recall him saying
23 MR. LANPHER: Objection to form, your Honor. 23 something about 27 years prior to the deposition there had been
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Page 307 Page 309
a dating relationship with an in-law. (At the side bar)
2 Q. He didn't give you the impression, in any way, that he 2 MR. LANPHER: Your Honor --
didn't know Lou Mosciatello, right? THE COURT: Let's first put on the record that the
3 A. He gave me the impression that he knew him at best 3 document that Mr. Gardner has given the witness is,
casually, but not that he didn't know him at all. essentially, the indictment.
4 Q. And when you read with counsel a number of questions 4 MR. LANPHER: That's correct. And, presumably, the
5 regarding, did you ever discuss -- and I'll ask you more 5 purpose is to point out what questions were charged that's
6 specifically in a minute -- but did you ever discuss anything 6 false and which questions were not. That goes to the ultimate
7 regarding the District Council, did you ever discuss anything 7 issues at hand before the jury. It's for them to decide what
8 regarding the Funds with Lou Mosciatello and Mr. Olivieri says 8 is false. Just like his prior questions of did you have any
9 no, or I don't remember ever doing that, do you have any reason 9 reason to believe that was true or that was untrue, there's no
10 to believe that that's not true? 10 basis for those questions. That's for the jury to decide.
11 MR. LANPHER: Objection, your Honor. 11 Whether this witness knows or not is irrelevant. It's, this
12 THE COURT: Sustained. Rephrase the question. 12 witness is a fact witness with limited knowledge. He shouldn't
13 Q. There were a series of questions asked and answered 13 be shown the indictment. He can obviously cross Mr. Torrance
14 regarding Mr. Olivieri's discussions with Lou Mosciatello as to 14 on the deposition transcript, but his request, at his request
15 the District Council, right? 15 we introduced the entire transcript. There's no reason for him
16 A. Yes, or lack of discussions, yes. 16 to be showing him the indictment.
17 Q. Or lack of discussions, right. And Mr. Olivieri 17 MR. GARDNER: So if Mr. Torrance knows that certain
18 continually expressed to you that he never discussed the 18 statements are not lies, I'm not allowed to ask him, that's
19 District Council or Fund, the Union side, either side with Mr. 19 your position? He took the deposition. And, second of all,
20 Moscatiello, correct? 20 that's what -- I mean he's -- you say he's a fact witness, he's
21 A. That's what he said, yes. 21 not an expert on the law. If he knows it to be true, he should
22 Q. And do you have any reason to believe that's not true? 22 be able to allowed to say that and shouldn't be afraid of that.
23 MR. LANPHER: Objection, your Honor. 23 And second --
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THE COURT: Sustained. MR. LANPHER: You have to keep your voice down.
2 Q. Are you aware that those statements are not part of the 2 MR. GARDNER: You read portion, you read whole
perjury prosecution? sections of the deposition that are not charged in here.
3 MR. LANPHER: Objection, your Honor. 3 You've led the jury to believe --you didn't read the portion.
THE COURT: Sustained. MS. ZORNBERG: Excuse me.
4 MR. GARDNER: Your Honor, I'd like to approach the 4 MR. LANPHER: Keep your voice down.
5 witness -- 5 THE COURT: All right, Mr. Gardner, this is a fact
6 THE COURT: Yes. 6 witness who is here to testify about the depositions, not about
7 MR. GARDNER: -- and hand him a document? 7 the indictment. What he believes or doesn't believe about the
8 THE WITNESS: Thank you. 8 indictment is not germane to his testimony.
9 MR. LANPHER: Your Honor, we object to this document. 9 MR. GARDNER: Well, your Honor --
10 THE COURT: Which document is this? 10 MR. LANPHER: Ultimately, these are arguments.
11 MR. LANPHER: It's a -- 11 THE COURT: And to the issue of whether or not the
12 MS. ZORNBERG: Can we hand it up? 12 statements in the indictment are true or not, for him to be
13 THE COURT: Yes. 13 opining on it is a question for the jury.
14 MR. LANPHER: The witness is showing you. 14 MR. GARDNER: If he knows it, if it's -- he's taking
15 MR. GARDNER: You want me to hand up one, your Honor? 15 the deposition, and the charges arise out of that deposition.
16 (Handing) 16 And if he knows that those statements are not material and he
17 THE COURT: Let's have a side bar on this. 17 went intestinally beyond or if he knows those statements are
18 (Continued on next page) 18 true and he disagrees with an indictment on it, he should be
19 19 allowed to say that. And it's -- to block the testimony and
20 20 not even let the jury hear it -- I mine, this is the charging
21 21 instrument. I'm not allowed to put before the jury --
22 22 THE COURT: No, the charging instrument is not before
23 23 the jury at this point, and this is not a witness --
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MR. LANPHER: Well, your Honor -- that have nothing to do with the deposition and I'm not allowed
2 THE COURT: -- the document shouldn't come. 2 to ask the witness if he thought that was true? Well, maybe I
MR. GARDNER: They published the deposition to the can just ask the witness did he have any reason to believe that
3 jury. The jury has no idea what is perjury and what's not 3 statement is not true. He's a fact witness.
perjury. And they're reading whole sections that he's not MR. LANPHER: There is no foundation for that.
4 accused of lying about. They've just gone through question and 4 MR. GARDNER: He did an investigation. He said he
5 answer about what parts of the deposition. It's not -- I can't 5 investigated it with you guys before and after.
6 tell the jury, I can't have, tell the jury it's not in here? 6 THE COURT: But he is not the person who should be
7 MR. LANPHER: He can of course do that in closing 7 giving testimony about what he believes is true and not true.
8 arguments. It's not a proper -- 8 MR. LANPHER: Especially when you have --
9 MR. GARDNER: Now do you -- 9 MR. GARDNER: Right.
10 THE COURT: All right again -- 10 MR. LANPHER: -- briefly --
11 MR. GARDNER: How about -- 11 MR. GARDNER: He did the investigation beforehand and
12 THE COURT: -- Mr. Gardner, this witness is not here 12 after hand.
13 to tell the jury what is true or what's not true in the 13 THE COURT: He can testify about what his, about the
14 indictment. All right. 14 deposition and his role in it, but not about things in the
15 MR. GARDNER: Okay. He's here to tell the jury -- 15 indictment.
16 THE COURT: He's here to testify about the deposition. 16 MR. GARDNER: So if he says I disagree -- can I just
17 So if you have questions about the deposition, then talk about 17 say -- he's a fact witness and he did an investigation
18 the deposition. 18 beforehand, and he said -- that's why I asked him did you
19 MR. GARDNER: But -- and I can't contrast it to the 19 review stuff beforehand, did you do an investigation, did you
20 indictment? 20 speak to them, did you look at the documents, same thing
21 THE COURT: No. 21 afterwards. And if I say to him when he says I don't know Lou
22 MR. GARDNER: So the indictment doesn't go to the 22 Mosciatello has a green card, do you believe that to be true,
23 jury, the questions that were asked that are charged with, 23 he goes, yeah, I believe that to be true, that's a basic fact
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Page 312 Page 314
don't go to the jury? question for him, they can show it's wrong. They can redirect,
2 THE COURT: The indictment will go to the jury, and 2 but I should be able to ask him his understanding. He's the
you're free to argue at closing arguments what you think the guy that took the deposition.
3 evidence has shown and why you think what's in the indictment 3 MR. LANPHER: The other problem with this entire line
has not been proved. But this is not the witness through which of argument is that the defense has specifically objected to
4 you should be making your arguments. 4 our offering Mr. Torrance's letters to the Court, the bases for
5 MR. GARDNER: Your Honor, it's exactly the only 5 his knowledge, the stuff about Mr. Torrance's prior testimony,
6 witness I can do it through. And unless one of them is going 6 Mr. Moscatiello's guilty plea. We've redacted all of that and
7 to testify, and I'll call Lisa then. Because Mr. Torrance 7 now he's trying to --
8 asked him a number of questions about Olivieri's saying 8 MR. GARDNER: No.
9 Mosciatello, they never spoke about the District Council, they 9 MR. LANPHER: -- to argue somehow that Mr. Torrance,
10 never talked about the District Council. That was the focus of 10 because he did an investigation has factual knowledge. That's
11 the give and take, right. It's not part of the deposition. 11 just not proper.
12 It's not part of the indictment. 12 MR. GARDNER: You don't talk about the actual plea,
13 MR. LANPHER: He can argue that. 13 you talk about the actual knowledge, you don't, you can't --
14 MR. GARDNER: You're just trying to trick the jury. 14 THE COURT: I've made the ruling. Okay.
15 THE COURT: You can argue that in your closing 15 (Continued on next page)
16 arguments. Both documents are going to be in evidence. 16
17 MR. GARDNER: But I can't bring in evidence about it? 17
18 MR. LANPHER: Mr -- 18
19 THE COURT: You can argue about it. 19
20 MR. LANPHER: And this, frankly, this is part of why 20
21 we put in the entire deposition, so there cannot be any 21
22 possible prejudice to you. 22
23 MR. GARDNER: You just asked him question 20 questions 23
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(In open court) A. I think it's fair to say a long time, yes.
2 MR. GARDNER: Your Honor, I understand your ruling. I 2 Q. And if you turn to page 167, line 20 and it says "When is
just want to ask one foundation question that may change it the last time you spoke to Louis Mosciatello, Sr." you see
3 without going contrary to your ruling, I think. 3 that?
Q. Mr. Torrance -- A. I do.
4 THE COURT: Ask your question. 4 Q. And that the answer is "I haven't seen him for a few
5 Q. Mr. Torrance, prior to Mr. Olivieri being indicted for 5 years," right?
6 perjury -- let me rephrase that. After -- you're aware 6 A. Yes.
7 Mr. Olivieri was indicted for perjury? 7 Q. And you say "How many is a few," natural follow up, and he
8 A. Yes. 8 says "Four or five," right?
9 Q. Did you read the indictment after he was indicted? 9 A. Right.
10 MR. LANPHER: Objection, your Honor. 10 Q. And that would be consistent with your knowledge of Lou
11 THE COURT: Sustained. 11 Mosciatello being in jail, right?
12 Q. Do you know what's contained in the indictment? 12 A. As I said before, I'm not sure exactly when Mr. Moscatiello
13 MR. LANPHER: Objection, your Honor. 13 was put in jail.
14 THE COURT: Sustained. 14 Q. But Joseph Olivieri is clearly telling you he has not seen
15 Q. Do you still have the deposition? I think it's in the 15 or spoken to him for four or five years, right?
16 book? 16 A. Yes.
17 A. I do. 17 Q. Then your question is, "When did you see him more than four
18 Q. If you started with Mr. Lanpher on page 164, and your first 18 or five years ago, how often did you meet with him?" You see
19 question about Louis Mosciatello was, "Do you know Louis 19 that?
20 Mosciatello Sr.," you see that? 20 A. Yes.
21 A. I do. 21 Q. And now is it fair to say that you're asking about the time
22 MR. GARDNER: Okay, that's line 15, if the jury is 22 period right before when he would've last seen him or spoken to
23 opening up their books. 23 him?
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Q. And his answer was, "Yes, I know Lou Mosciatello Sr.," A. Right before that four or five year gap.
2 right? 2 Q. Right. And then he says, "I never met with him," right?
A. That's right. A. Right.
3 Q. Never denied knowing him, right? 3 Q. You say "How often did you speak with him?" He says,
A. That's correct. "Occasionally if I saw him around," right?
4 Q. And then after that I think I asked you previously that's 4 A. Right.
5 when he then goes onto and tells you about the family 5 Q. And you say, "Where would you see him around?" And here he
6 relationship and he knows him from the neighborhood? 6 says again, maybe he's repeated it a number of times, "The
7 A. That's right. 7 neighborhood, a bank, a diner, anywhere," right?
8 Q. And if you turn to the top -- well, just for completeness 8 A. That's what he said, yes.
9 at the bottom of 164, you're again, you're asking when they 9 Q. And then your question -- and this is in that same flow
10 first met. You're trying to establish when they first met 10 right, your question is "So, four or five years ago you and he
11 seemingly and you ask. And you say "When did you meet him? 11 I still lived in the same neighborhood, is that right?"
12 don't recall exactly when I met him." Approximately, you're 12 A. That's what I asked him, yes.
13 asking. And then he answers, "Well, his son was dating my 13 Q. So we're talking about four or five years ago just when the
14 sister-in-law when I first got married. That was about 27 14 last time you would've seen him or spoken to him, right?
15 years ago and his daughter went to school with my 15 A. Right.
16 sister-in-law. Other than that, I really don't know exactly 16 Q. And then you go on and talk about that, and he gives an
17 when I first met him." You see that? 17 answer about where his mother lives. But then the next
18 A. I see that. 18 question -- again you're reiterating the time period, "And at
19 Q. Okay. That would establish he's known him for 27 or more 19 that time Louis Mosciatello, Sr. also lived in Pelham Bay."
20 years right, seemingly? 20 You see that?
21 A. Well, that's why I asked the next question and he said he 21 A. Yes.
22 can't establish that, so. 22 Q. Okay. Now at that time, if you go up to the question
23 Q. He's not sure. But a long time? 23 immediately preceding that, you're talking about four or five
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Page 319 Page 321
1 0ALZ0LI2 Torrance - cross 1 0aldoli3 Torrance - cross
years ago, right; we're still talking about that same time of limiting it. I mean, it says "ever." That's what I meant.
2 period? 2 Q. OK. Again, I will start at the beginning of the page or
A. At that time, yes. the middle of the page. You say, "So four or five years ago
3 Q. Okay. So, this is all on the same page where he says I 3 you and he still lived in the same neighborhood," right? So
never met him. And where would you see him around? And he you are drawing his attention to a time period four or five
4 says a diner and the like. We're talking about four or five 4 years ago, that neighborhood, right?
5 years ago? 5 A. In that question, at line 12, yes.
6 A. That's right. 6 Q. Then in the next question, "At that time, senior also lived
7 Q. Now, if you go onto the same page, right after you gave him 7 in the neighborhood," right?
8 the time period of, you know, four or five years ago, you say, 8 A. Yes. At line 17, yes.
9 "Besides just seeing him around the neighborhood, did you ever 9 Q. And then the very next question is: Besides just seeing
10 have a relationship where you would make arrangements to see10 him around the neighborhood" -- the period of time in the
11 him," right? 11 neighborhood we just established -- "did you ever have a
12 A. Right. 12 relationship with him where you would make arrangements to see
13 Q. And then he says, "No, I never made arrangements to see 13 him?"
14 him." You see that? 14 Now, it is your testimony you didn't mean not just
15 A. Yes. 15 seeing him in the bank, in the diner four or five years ago,
16 Q. Okay. We're still talking about four or five years ago, 16 did you ever make arrangements to see him four or five years
17 right? 17 ago, there you are saying no, no, you meant forever?
18 A. I would say at or extended back farther than that. But, 18 A. Did he ever have a relationship? That's what I meant.
19 you know, looking back in time, starting four or five years ago 19 Q. Can you see how that could be interpreted by the answer to
20 and then going back to ever. 20 the question still being within the four- or five-year time
21 (Continued on next page) 21 period?
22 22 MR. LANPHER: Objection, your Honor.
23 23 THE COURT: Sustained.
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1 0aldoli3 Torrance - cross 1 0aldoli3 Torrance - cross
Q. When you said -- did you ever say, you are changing the Q. If we turn to page 171.
2 time period and now we are talking about a different time 2 Again, just so we're clear -- and you had an objection
period? and it was sustained, fine, but you don't know what's charged
3 A. I said did you ever have a relationship. I thought that 3 from your deposition, you don't know what was charged in the
was fairly clear. Indictment against Mr. Olivieri, correct?
4 Q. And you also qualified "at that time," meaning four or five 4 MR. LANPHER: Objection, your Honor.
5 years ago? 5 THE COURT: Sustained.
6 A. Not in that question, I didn't. I said, "besides just" -- 6 Q. If you turn to page to page 171. I think this was read to
7 Q. OK. So we have one question, OK, at 17, where you say, 7 you as well by counsel. Line 15. I won't read all of them
8 "And at that time Louis Moscatiello, Sr. also lived in Pelham 8 again but I will pick out a few examples.
9 Bay?" Right? 9 "With respect to Louis Moscatiello, Sr., did you ever
10 You also said that was four or five years prior to the 10 discuss with him anything relating to the District Council of
11 deposition? 11 Carpenters?" Do you see that?
12 A. Yes. 12 A. Yes, I do.
13 Q. OK. And then the very next question is, "Besides just 13 Q. And the answer is: "I don't recall ever talking to him
14 seeing him around the neighborhood," talking about Pelham Bay,14 about anything to do with the District Council of Carpenters."
15 where he lived, right, "did you ever have a relationship where 15 Do you see that?
16 you would make arrangements to see him?" 16 A. Yes.
17 And you're saying from that you were switching gears 17 Q. Do you have any reason to believe that wasn't true?
18 and now talking about ever? 18 MR. LANPHER: Objection, your Honor.
19 A. I wouldn't call it switching gears. I said ever. And his 19 THE COURT: Sustained.
20 testimony had been that he knew him from the neighborhood, 20 Q. You asked Mr. -- you were not read these questions by your
21 going back to 27 years, or whatever it was, but that was when 21 counsel, but you asked Mr. Olivieri a number of questions about
22 they were both in Pelham Bay. So besides just seeing him 22 the 50/50 rule and about the request system, correct?
23 around the neighborhood, it didn't seem to me an unnatural way 23 A. That's right.
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Q. And do you recall that those questions came in the morning, Q. And one of the things it lists is that the Board of
2 I'll say in the morning session of the deposition? 2 Trustees of the Funds retained Stuart Grabois to serve as the
A. That's right. executive director. Do you see that?
3 Q. And the questions regarding Lou Moscatiello, well, or Jim 3 A. Yes.
Murray came in the afternoon? Q. Do you agree with the statement that retaining Stuart
4 A. I would have to double-check but that's my recollection, 4 Grabois was in an effort to eradicate corruption?
5 yes. 5 A. I can't speak to the motive. All I can speak to is that
6 Q. How long a deposition was it? 6 the corruption continued from 1993 onward. So whatever they
7 A. It took most of the day. I could check the time stamps but 7 were doing wasn't working, and that's why we were questioning
8 I think it was roughly in the neighborhood of six hours total 8 how concerted their effort really was.
9 questioning time. 9 Q. OK. I'm not saying -- I am not asking you if it was your
10 Actually, if you count the lunch break, just looking 10 opinion that they were successful. What I'm saying is that
11 at the stamps, it looks like it was somewhat shorter than that, 11 this reads "in a concerted effort to eradicate corruption
12 more like five. 12 beginning in 1993, the Board of Trustees of the Funds retained
13 Q. What time did it end? 13 Stuart Grabois." Do you see that?
14 A. The time stamp here says it ended at 4:19 and it started at 14 A. Yes.
15 10:11. 15 Q. OK. Now, first I should ask you, in 1993 Mr. Olivieri
16 MR. GARDNER: May I approach the witness? 16 isn't on the board, right?
17 THE COURT: Yes. 17 A. I don't recall when he said he joined the board. I thought
18 MR. GARDNER: Your Honor, I have handed the witness 18 it might be 1990.
19 what has been previously marked into evidence as Government 19 Q. I think it was that question that you were read and
20 Exhibit 4. 20 answered 1990, and he said, oh, no, what am I talking about, it
21 Q. Is that the affidavit of Olivieri? Do you remember 21 is actually 2000?
22 testifying about it? 22 A. I think that might be right.
23 A. Yes, that's right. 23 Q. I can show it to you.
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Q. Can you tell me, prior to the deposition, what portion of I'll show it to you.
2 this affidavit you had reason to believe was untrue? 2 MR. LANPHER: Your Honor, we'll stipulate that it said
A. Well, the -- you know, he recites certain things about he's he joined in 2000.
3 a management trustee, that kind thing so I had no reason to 3 THE COURT: All right.
believe that that was untrue. MR. GARDNER: Thank you, counsel.
4 Q. Would it be easier to go -- maybe I should have asked you 4 THE WITNESS: Sorry.
5 paragraph by paragraph, if that is easier. 5 BY MR. GARDNER:
6 A. Well, however you want to do it. 6 Q. Are you familiar with Stuart Grabois' background?
7 Q. That is in the first paragraph, his background, director of 7 A. Vaguely.
8 the association and he is a trustee, right, of the Funds, 8 Q. OK. That he was formerly an Assistant U.S. Attorney?
9 right? 9 A. I knew that, yes.
10 A. Right. 10 Q. Out of this office?
11 Q. The second paragraph, anything in there that you thought 11 A. Yes.
12 was actually untrue? 12 Q. And you don't think that the reason to retain a former U.S.
13 A. Where he is reciting he is a management trustee, no, I 13 Attorney -- I'm sorry, former Assistant U.S. Attorney is part
14 didn't. No, that seems -- I have no reason to think that that 14 of an effort to eradicate corruption; do you disagree with
15 was untrue. 15 that?
16 Q. The third paragraph? 16 A. Well, it depends on what the real motives are. It may be
17 A. Well, the third paragraph talks about the concerted effort 17 just kind of a show of showing opposing corruption or it may be
18 to eradicate corruption, and that's really what we questioned. 18 a genuine effort to oppose corruption; that is really the
19 We questioned whether there really was any concerted effort to 19 central question.
20 eradicate corruption. In fact, we did not think there was. 20 Q. He was not given a subservient role with the Funds, was he?
21 Q. This says "a concerted effort to eradicate corruption 21 A. I don't know precisely what his job duties are.
22 beginning in 1993," right? 22 Q. In your investigation or handling of the civil RICO case,
23 A. Right. 23 you don't know what Stuart Grabois' role at the Funds was?
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A. I know he's the director of -- essentially the any adverse effects from strengthening the job referral rules.
2 administrator of the Funds, but I don't know precisely what his 2 That was my understanding of the intent of submitting this
job duties are. affidavit and that's what I doubted.
3 Q. It says here, "he serves as executive director of the 3 Q. Did you ever ask Mr. Olivieri about that?
Funds." That is not the part that you were disagreeing with on A. That -- whether --
4 the bottom? 4 Q. What his intent in delivering this affidavit was.
5 A. I believe that is his title, yes. 5 A. I didn't ask that specifically of him.
6 Q. Did you know him when he was here? 6 Q. Where did you get the idea from? The affidavit itself?
7 A. No. He was here way before my time. 7 A. I got the idea from the history of this union, the history
8 Q. Oh, it says it in the next sentence. "Prior to his 8 of its Benefit Funds, knowing that the corruption kept going,
9 retainer of the Funds, Mr. Grabois was an Assistant U.S. 9 knowing that I continued to learn about organized crime ties at
10 Attorney, Southern District New York, Criminal Division, for 10 the same time that they were saying -- going back to even
11 eleven-and-a-half years." Do you see that? 11 before the Consent Decree, they were doing everything they can
12 A. Yes. 12 to eradicate corruption and yet somehow the corruption
13 Q. You didn't disagree with that? 13 continued.
14 A. I assume that to be the case, certainly. 14 Q. That is the second or third time you said that. But my
15 Q. And then it goes on to talk about how he is the executive 15 question is where does it say in this affidavit that they are
16 director and he oversees the Funds' anticorruption efforts. Do 16 doing everything they can to eradicate corruption? Where does
17 you see that? It goes onto the next page. 17 it say that there is no corruption?
18 A. Yes. 18 In fact, when you are talking about the steps that
19 Q. Do you have any reason to disagree with that as part of 19 you're taking to weed out corruption and try to prevent future
20 your application? 20 corruption, it would be almost a presumption that corruption is
21 A. My disagreement is not what they say his job duties are. 21 there. You won't need to try to weed it out or hire Stuart
22 My disagreement is whether that was a good faith effort and 22 Grabois unless there is some concession that there was a
23 whether it was an effective effort. 23 problem with the union, correct?
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Q. Would you agree that retaining a former Assistant United A. In 1993, I think you have to concede there was a problem
2 States Attorney as the Executive Director of the Funds, that at 2 with the union and that's when they hired him.
least you would agree that that was one step towards Q. Let me go a step further. We talked about it the first
3 eradicating corruption? 3 thing. The union entered into a Consent Decree saying there
A. It depends on a number of things. It depends on whether were problems and we were going to try and fix it.
4 they have a good faith motivation for doing that, whether they 4 A. Right. I mean, did they do that out of the goodness of
5 are really giving him the power of doing that, whether they are 5 their hearts or because the government had them over a barrel?
6 really giving him the facts that he needs to do that. It 6 I mean --
7 depends on his motivations. As I said before, it could be just 7 Q. That is not the question. And I should make clear
8 putting on a show. 8 Mr. Olivieri wasn't again --
9 Q. Do you have any reason to believe that Mr. Grabois would 9 A. That is correct.
10 allow himself to be just used as a show or as a tool? 10 Q. His part of this was -- he didn't become a trustee until
11 MR. LANPHER: Objection, your Honor. 11 2000, until many years later, right?
12 THE COURT: Sustained. 12 A. That's right.
13 Q. How about the next question? I mean, the next paragraph. 13 Q. But I guess what I'm trying to ask you is I thought, maybe
14 Was that part of something that he's always incorrect, you 14 incorrectly, that you had an important question. In the
15 said? You said there were incorrect things in the affidavit 15 perjury prosecution, there is an affidavit from Mr. Olivieri
16 that led you to go to Judge Haight. 16 and you're saying --
17 MR. LANPHER: Objection, your Honor. 17 MR. LANPHER: Objection, your Honor. Objection as to
18 THE COURT: Overruled. 18 form.
19 A. I don't believe that is precisely what I said. What I said 19 THE COURT: Sustained as to form.
20 is that we doubted the gist of this affidavit, which was meant 20 Q. Is there a statement in the affidavit that you say is
21 to convince the Court that Mr. Olivieri and the Wall & Ceiling 21 false?
22 Association were dedicated to eliminating corruption and, 22 A. That there was a concerted effort to eradicate corruption,
23 therefore, they had done nothing wrong, they should not feel 23 I disagree with the gist of that. In the context of the
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affidavit being submitted, there was an intent to show their Q. With the forensic accountants, right?
2 good faith. I disagree with that. 2 A. That I don't know.
Q. But you wouldn't disagree that action was taken to Q. Did you have that understanding in '07? Was that why you
3 eradicate -- get rid of corruption? 3 were taking Mr. Olivieri's deposition, because you had a
A. One of the things, as I said, I'm trying to find out if question about O'Dwyer & Bernstein?
4 whether that is a real effort or a paper effort. 4 A. It wasn't about any specific questions like that. It was
5 Q. How about hiring Kroll Associates? You are familiar with 5 about the general gist of their good faith efforts.
6 Kroll Associates? 6 Q. You understand that Mr. Olivieri didn't draft this
7 A. Vaguely, yes. 7 affidavit, right?
8 Q. Vaguely. You are not aware that Kroll Associates is 8 MR. LANPHER: Objection, your Honor.
9 probably the largest investigative firm in the country? 9 THE COURT: Sustained.
10 A. No. I know their general reputation, yes. 10 Q. Are you aware that this affidavit was submitted as part of
11 Q. And would you agree that hiring Kroll is part of a plan or 11 an application by Mr. Olivieri's attorney?
12 an attempt to eradicate corruption? 12 A. It was submitted as part of an application by Wall &
13 A. Again, it depends on a lot of circumstances. 13 Ceiling Association through their attorney.
14 Q. How about involving forensic auditors? 14 Q. And that attorney was Schulte Roth?
15 A. The same answer. It depends on what they are giving them, 15 A. Yes.
16 what they are really telling them, what they are doing with 16 Q. OK. Mr. Brossman?
17 those forensic auditors. 17 A. It was actually Holly Weiss.
18 Q. Who is "they"? Who would have any impact on the forensic 18 Q. Of Schulte Roth?
19 auditors? 19 A. Of Schulte Roth. Mr. Brossman may have signed the papers,
20 A. The people who hired them. 20 but Ms. Weiss is the one who appeared in the proceedings.
21 Q. Who hires forensic auditors, in your understanding? 21 Q. Do you know who drafted the affidavit?
22 A. Well, here he's saying that the Benefit Funds hired a 22 A. No, I don't.
23 forensic auditor. 23 Q. In your experience with the Civil Division, would it be
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Q. And it is your understanding that Funds could have an common practice for the attorneys to draft the affidavit and
2 impact in what the forensic auditors look at or do? 2 then for Mr. Olivieri to review it?
A. Without saying that I know this, it is certainly possible A. That's common, yes.
3 to deceive an auditor. 3 Q. Let me ask you to pull back --
Q. You had no information at the time that you are asking for THE COURT: Mr. Gardner, let's go back to that
4 Mr. Olivieri's deposition that any of that was true? 4 previous question to make sure that there is no confusion on
5 A. Not specifically, no. 5 the part of the jury.
6 Q. All right. How about the firm of O'Dwyer & Bernstein? 6 The Civil Division would not be drafting affidavits
7 They're being retained to aggressively do audits and the like. 7 for Mr. Olivieri, I assume?
8 Do you have any reason to believe that O'Dwyer & Bernstein are 8 MR. GARDNER: Oh, no. I didn't mean to give that
9 not representing the interests of the Funds? 9 impression, if I did, your Honor. I am not asking if the Civil
10 A. Not representing the interests of the Funds? I mean, I 10 Division drafted an affidavit for him. When I say "the Civil
11 have reason to believe that their furtive investigations are 11 Division," I am not asking if the United States Attorney's
12 not all that aggressive and certainly not that effective and, 12 office drafted the affidavit for Mr. Olivieri.
13 therefore, were not really in the interest of the plan 13 A. It is common for a lawyer to draft an affidavit on behalf
14 participants or the Funds' participants and that they didn't 14 of the client when they are the client's representative.
15 really get to the bottom of what was going on. 15 Q. Right. I wanted everyone to be clear that when you said a
16 Q. Would they be the ones to investigate, or it would be the 16 lawyer, a lawyer means from Schulte Roth?
17 forensic auditors? 17 A. Their own lawyer, exactly. Not us.
18 A. Investigate what? 18 Q. Could I ask you to turn to page 184. And if you look at
19 Q. Money owed to the Funds. 19 line 8, it just says, as you did with Lou Moscatiello, you
20 A. Well, my understanding is that O'Dwyer & Bernstein served 20 start the questioning with the same questions. "Do you know
21 as collections counsel to the Funds, and so, yes, they will 21 someone named," and there it says "James Murray" instead of
22 have a role in investigating collections and whether money had 22 "Lou Moscatiello." Do you see that?
23 been deprived to the Funds. 23 A. Yes.
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Q. His simple, quick answer is "yes," right? something at that time? No, I didn't have any information
2 A. Yes. 2 about that.
Q. Then you say, "Who is James Murray?" And he tells you. Q. At the time of the deposition, you're aware that Jim Murray
3 "He was the owner of On Par," right? 3 is no longer involved in any way regarding, as Judge Haight
A. Yes. said, regarding carpenters belonging to one of the District
4 Q. And then you ask him, "When did you first meet James 4 Council's constituent local unions, right?
5 Murray?" 5 MR. LANPHER: Objection, your Honor.
6 Do you see that? 6 THE COURT: Sustained.
7 A. Right. 7 Q. Well, were you aware at the time of the deposition Jim
8 Q. OK. And he tells you he first met him when James Murray 8 Murray has no impact regarding -- is not involved with District
9 joined the association, in 2000, 2001, right? 9 Council matters, right?
11 Q. And he tells you he was executive director at that time, 11 THE COURT: Overruled.
12 right? 12 A. I wouldn't say without qualification that I am aware he was
13 A. That's right. Olivieri was executive director. 13 not. I didn't have any information that he was. But there was
14 Q. Right. Olivieri was. 14 some history of him running things through intermediaries. So
15 Never denied knowing James Murray, did he? 15 it certainly remained possible that he was still involved with
16 A. He did not. 16 the carpenters.
17 Q. He never denied knowing that James Murray had a contracting 17 Q. OK. Anything's possible. I'm not asking you what's
18 business in the City of New York, did he? 18 possible. I'm asking you, when you took the deposition, you
19 A. No. 19 didn't have any knowledge of what's happening?
20 Q. In fact, he never denied knowing in 2007, December of 2007, 20 A. That is correct.
21 that James Murray had engaged in corrupt activities at a job 21 Q. And you didn't take the deposition and ask questions about
22 site, right? 22 Jim Murray to find out if he still was impacting the District
23 A. He did not deny that. 23 Council, did you?
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Q. Right. In fact, he talked about him a little bit, paying A. No. I don't think I asked questions like that, no.
2 workers, nonunion workers, paying cash, and he's going, yeah, 2 Q. That wasn't the purpose of asking about Jim Murray, was it?
boy, we found out Jim Murray was doing that and we threw him A. Impact at the time, no, it was not.
3 out of the association and other things happened, right? 3 Q. You said that -- or we discussed -- I should say, we
A. Yes. discussed, and you discussed with Mr. Lanpher, that there were
4 Q. At the time of the deposition -- again, I am going to keep 4 applications made to Judge Haight and there were disputes and a
5 bringing you back to that -- December of 2007, where was Jim 5 portion of the litigation about the deposition. Did you ever
6 Murray? 6 mention at any time to Judge Haight Jim Murray's name?
7 A. My recollection is that he was in Ireland at that time. 7 A. I don't recall doing so. I would have to look at the
8 Q. He had already been indicted? 8 letters but I don't remember doing that.
9 A. He had been indicted, yes. 9 Q. How about -- and there were e-mail correspondence, correct,
10 Q. And he fled the United States to Ireland? 10 between yourself, Ms. Zornberg and others regarding the
11 A. That is my understanding, I guess. 11 deposition; do you recall that?
12 Q. So you're asking questions of Joseph Olivieri regarding an 12 A. Yes.
13 individual who was indicted and has already fled the 13 Q. I am talking about before the deposition now.
14 jurisdiction? 14 A. Yes.
15 A. Yes. 15 Q. In those e-mail conversations, did you ever mention Jim
16 Q. At the time of the deposition, did you have any reason to 16 Murray's name?
17 believe that Jim Murray was still impacting the District 17 A. I would have to look them over. I don't remember.
18 Council in any way? 18 (Pause)
19 A. Not specifically, no. 19 MR. GARDNER: I will get it.
20 Q. Not specifically? 20 Q. I'll ask you as you sit here. Do you have any recollection
21 A. Right. I didn't have any information -- I mean, you know, 21 of mentioning Jim Murray's name in any e-mails?
22 that -- the aftermath of the fraud he had committed was still, 22 A. In the e-mails themselves? I don't recall that.
23 you know, having an effect. But was he directly doing 23 Q. Is it fair say that you never indicated to the Court that
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Jim Murray was the basis for the deposition? Q. Oh, "is it usual." OK. "Is it usual." I'm sorry.
2 A. I'm not sure what "basis for the deposition" is. 2 A. Right.
Q. You may. I'm sorry. I wasn't too clear. Q. And then he answers -- "he" being Joe -- "Well, usually
3 You made an application to the Court. You presented 3 once a year they might -- they come to a membership meeting."
reasons why you wanted to take Mr. Olivieri's deposition. A. Right.
4 What I'm asking you is that in presenting those 4 Q. Then you question, "What is your relationship with James
5 reasons to the Court, you never utilized Jim Murray as a reason 5 Murray?" Do you see that?
6 to take the deposition? 6 A. Right.
7 A. I believe that's right. 7 Q. And he answers, "I don't have a relationship with" James
8 Q. You did discuss somebody else on the applications. Boom, I 8 Murray.
9 think it was. Is there a Boom Construction? 9 A. Right.
10 A. There is a Boom Construction, yes. 10 Q. Or he says -- you will correct me again -- "I don't have a
11 Q. And you mentioned Boom Construction to Judge Haight, right? 11 relationship with him." Do you see that?
12 A. I think so. 12 A. Sorry. Yes.
13 Q. Was Jim Murray involved in Boom Construction in any way? 13 Q. And then he says -- you ask, "When was the last time you
14 A. No. 14 talked to him?"
15 MR. GARDNER: Can I ask my client one question, your 15 "A Two, three years ago."
16 Honor? 16 Do you see that?
17 THE COURT: Yes. 17 A. Right.
18 (Pause) 18 Q. So when he says -- he's already told you he knows him, and
19 MR. GARDNER: Thank you, Judge. 19 he had already told you that he has been a member of the
20 BY MR. GARDNER: 20 association since 2001. So when he says -- when you ask him
21 Q. In December of '07, did you have any knowledge or belief 21 what is your relationship, you are talking about the present
22 that Jim Murray would be returning to the United States and 22 tense, no?
23 engaging in construction activities? 23 A. Yeah. It's a general question but it's phrased in the
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A. I did not. present tense.
2 Q. So if a remedy was fashioned by Judge Haight, that remedy 2 Q. Then he answers, "I don't have a relationship with him."
would not involve Jim Murray in any way? Right?
3 A. I suppose, no. 3 A. Correct.
Q. Are you aware of, in reviewing the case, or the facts Q. And this is -- Jim Murray's fled the jurisdiction for some
4 before taking the deposition, of the time period that Jim 4 time by this point?
5 Murray's corruption extended over? 5 A. I didn't ask him specifically when he meant by that but --
6 A. It was years. As I sit here now, I don't know exactly what 6 Q. I'm asking you. At the time that he's saying I don't have
7 years those were, but it was in the years prior. 7 a relationship with him, Jim Murray has already fled the
8 Q. Would it be fair to say it went all the way back to, say, 8 jurisdiction?
9 1999, 2000, 2001? 9 A. That is my understanding, yes.
10 A. That sounds about right, yes. 10 Q. Then you ask him, picking up on the present tense of "is,"
11 Q. If I could point your attention now to page 185. We 11 you ask him, well, when was the last time you spoke to him.
12 started at 184. This is the very next page. 12 And he says, "Two, three years ago." Right?
13 A. Right. 13 A. Right.
14 Q. You asked him when did he first meet him. He said when he14 Q. That would be consistent with when Jim Murray was within
15 joined the association. That's the prior page. And he 15 the jurisdiction, right?
16 explained to you he sent in an application. Right? 16 A. Yes. As I sit here now, I don't recall exactly when that
17 A. Right. 17 was but ...
18 Q. Then you see where he says -- you asked at the top of the 18 Q. I want to go through this a little more, because right
19 page, line 5: "Is it" unusual "for you to meet the owners or 19 after that, you spoke to him two or three years ago, you then
20 principals of companies that belong to the Wall & Ceiling 20 ask, "Do you recall what you discussed?"
21 Association?" 21 And then he tells you, using the word "meeting," they
22 Do you see that? 22 had a meeting, right? Regarding the carpenters and benefits
23 A. Actually, it says "is it usual." 23 and the others, right? Do you see that?
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A. Right. referring back to what he just said.
2 Q. And then he goes on to explain that that was part of an 2 Q. Let me ask you this.
audit. Were you aware that there were a series of audits or a
3 Correct me if I'm wrong. He's telling you -- you said 3 series of meetings?
when was the last time you spoke to him. And he says the last A. I knew from what he said, at the very least, that there
4 time I spoke to him, it was at a meeting, we were talking about 4 were a series of meetings.
5 an audit, and money that he owed the Funds, right? 5 Q. I'm actually asking you before that, before he said that.
6 A. Yes. 6 Going into the deposition, did you know, OK, Jim Murray has
7 Q. Then you follow up on that on the next page, 186. You say, 7 been audited four times, one in 2003, one in 2004, one in 2005,
8 "So in that meeting or the series of meetings, were you meeting 8 did you know that?
9 with him in your capacity as executive director of the 9 A. I don't know that I did.
10 Wall-Ceiling or as a trustee of the Benefit Funds or something 10 Q. OK. So the answer, just to bring us back to page 187, line
11 else?" Do you see that? 11 7, is: "He came to a couple of meetings." Do you see that?
12 A. Yes. 12 A. Right.
13 Q. What does he sea? He says, "As executive director," right? 13 Q. Then you say, "Did you ever discuss business with him?"
14 A. Right. 14 "How's business? How you doing? I'm busy. I'm not
15 Q. And then he goes on in that answer, maybe his longest 15 busy. Just general topics."
16 answer, to explain what he does as executive director and 16 You see that, right?
17 representing the members, his members of the company, right? 17 A. Right.
18 A. Right. 18 Q. Then you say, "Did you ever arrange specifically to meet
19 Q. Do you recall him ever telling you he never met with Jim 19 with him?"
20 Murray? 20 A. Right.
21 A. That he never met? No, he didn't say that. 21 Q. He says, "No."
22 Q. Did he ever tell you he never had a relationship with Jim 22 A. Right.
23 Murray? 23 Q. OK. And then your very next question is: "During that
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A. He did not say that expressly, no. period" -- now, again, correct me if I am wrong if you are not
2 Q. Now, we turn to the next page, 187. I am not intentionally 2 saying a time period, but "During that period, between the time
skipping, but he gives you that long answer. And then at the you first met him and the time you started meeting with James
3 bottom of 186 you talk about -- well, actually, I shouldn't 3 Murray about the delinquencies, about how many times did you
skip this. This is important. talk to him?"
4 You ask him a question before that series of meetings, 4 "I have no idea."
5 right? So, again, you are still asking questions about the 5 Do you see that?
6 meetings, the audit, and the like, right? 6 A. Right.
7 A. Correct. 7 Q. OK. So is it fair to say you're setting the time period
8 Q. Now on 187 you have another question. You follow up. And 8 for the conversations on this page, 187, that is when you met
9 you say: "Between the time that you first met him" -- all 9 him, when he joined the association, and when you first started
10 right, which time was established as when Jim Murray joined the10 meeting with him regarding delinquencies?
11 association? 11 A. The meetings that he referred to on the prior page, yes.
12 A. Right. 12 Q. Well, you're saying when you started meeting with James
13 Q. Then you said, "Right after he joined the association and 13 Murray about his delinquencies. Do you see that?
14 the time that you had these meetings about his delinquency to 14 A. Right.
15 the Benefit Funds, did you ever speak with him in that period?" 15 Q. OK. And if Joseph Olivieri knows that he started meeting
16 Do you see that? 16 with him about his delinquencies in 2003 --
17 A. Correct. 17 MR. LANPHER: Objection, your Honor.
18 Q. He said, "He came to a couple of meetings." 18 THE COURT: Sustained.
19 Now, when you're asking these questions about -- or 19 Q. -- this would be what he's talking about?
20 the conversation has gone to a question of delinquencies and 20 THE COURT: Sustained.
21 audits, do you know what audit or delinquency you are referring 21 Q. Did you ever draw a time -- ask him about a particular year
22 to? 22 when we are talking about started meeting with James Murray?
23 A. I'm referring to the audit he just described. I'm 23 A. I don't see a question like that.
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Q. OK. When, in the question immediately before that one, that delinquency meeting?
2 where it says, "started meeting with James Murray," you asked 2 Q. Well, talking about the delinquency meeting, right? And
him, "Did you ever arrange specifically to meet with him," and you are talking about we talked about -- outside of the context
3 he says, "No." Do you see that? 3 of an association social event and golf, he just -- you just
A. Right. agreed with me that the question about golf outing and
4 Q. Clearly, he's not telling you that he never met with him. 4 Christmas parties are within that time period?
5 He's telling you that he never met with him within that time 5 A. I think that's right.
6 period, correct? 6 Q. The very next question where you yourself referred to the
7 MR. LANPHER: Objection, your Honor. 7 golf outings and the Christmas parties, other than that, did
8 THE COURT: Overruled. 8 you ever talk to him?
9 This applies to your understanding. 9 A. Other than that, did you ever talk to him? Yes.
10 A. I think that's right. 10 Q. Correct. And he says no. Where he says -- actually, he
11 Q. OK. And then the conversation continues. 11 doesn't say no. He says, "Can you explain what you're asking
12 "In that time period" -- you define for him the time 12 about?" Right?
13 period. And you say, "Well, how many times did you talk to 13 A. Right.
14 him?" And he says, "I have no idea." And you say, "Can you 14 Q. And then now, contrary to what you just said that it might
15 approximate?" He says no, basically, right? 15 be ever, you then say, "Sure, I'll explain." And you define
16 A. Right. 16 the time period as restricted to what we were talking about
17 Q. You asked him, "Is it more than two?" And he says, look, I 17 earlier.
18 don't know. I don't know how many times I talked to him. 18 MR. LANPHER: Objection, your Honor.
19 Right? 19 Q. Right?
20 A. He says he can't approximate. He cannot approximate. 20 THE COURT: Sustained.
21 Q. Page 188 now. If you could flip to that page. 21 Q. Let me show you the question.
22 Well, let me -- I'm jumping. We go back to the end of 22 He said -- let's do it question and answer.
23 187. We have the question about how many times did you speak 23 "Outside of that kind of context, that kind of meeting
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with him. And then you end that page -- again, this is right or party?
2 after you define the time period, a couple of times. The same 2 "Answer: Could you explain a little more?"
page now. This is one page worth of conversation. Do you see that at line 14?
3 You question at the very bottom: "Would you say he 3 A. Yes.
came by the association about once a year?" Right? Do you see Q. Then the question is, "Well, I understand it" -- this is
4 that? 4 from you, right? "Well, I understand it -- I'm sorry. "Well,
5 A. Right. 5 as I understand it, the first time you met James Murray was
6 Q. Then he talks about golf outings and Christmas parties and 6 right after he became a member, is that right?"
7 stuff, right? 7 He says, "Yes," right?
8 A. Correct. 8 A. Right.
9 Q. Again, still within that same time period, right? 9 Q. So we're setting the beginning time period, right?
10 A. I think that's right. 10 A. Right.
11 Q. OK. Then you ask, the next question, the very next 11 Q. And then a question by you: "And then in the next few
12 question, that is: "Did you ever talk to James Murray -- 12 years he would occasionally come to association events, like
13 except for that delinquency meeting we talked about, did you 13 golf outings and Christmas parties and that kind of stuff?"
14 ever talk to James Murray outside of the context of an 14 Do you see, he answers, "Yes"?
15 association social event, like a golfing outing or a Christmas 15 A. Right.
16 party?" 16 Q. So a few years beginning from 2000 and 2001, right?
17 You define the time period. He then tells you, yeah, 17 A. Right.
18 we do see each other at a Christmas party or golf meetings. 18 Q. OK. So we're up to what? 2003? 2004?
19 And you say, OK. What about other things? Did you ever see 19 A. I think you can go more broader than that.
20 him otherwise? 20 Q. Did you mean -- when you say -- when you define the
21 We are still in that same time period, right? 21 beginning period as 2000 to 2001 and then you utilize the word
22 A. That I'm not -- I can't agree with that. This is the 22 "few," were you trying to indicate to Mr. Olivieri that you
23 broader question. Did you ever talk to Jim Murray except for 23 meant something more than three years?
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A. I wasn't trying to indicate any specific time. I just that you had confined him to when you first met him to when you
2 meant in the ensuing years. 2 started the delinquency proceedings, right?
Q. Then why did you limit it by the next -- the next few A. On the prior page, yes.
3 years? 3 Q. And now a page later he asked you to explain your
A. Meaning going forward from there. That's what I meant by timeframe, and you're saying -- when you say, well, when you
4 that. 4 first met him for the next few years; that wasn't also cutting
5 Q. So you didn't -- when you said "the next few years," you 5 it off at the same time?
6 didn't mean the next few years, you meant for all time going 6 A. He didn't ask me to explain the time period. He just said
7 forward from there? 7 could you explain. I asked him did you meet with him outside
8 A. Well, I mean -- 8 the context of golf outings and Christmas parties, and he said
9 Q. That's your testimony? 9 could you explain.
10 A. Well, all time is not that long when, you know, we are in 10 Q. Your answer isn't that you go dancing, your answer is
11 2007 and we are going back to 2000 and 2001. In the next, you 11 regarding the timeframe, right?
12 know, in the ensuing years after you met him. 12 A. My answer is -- it's not just regarding timeframe. It
13 Q. So "seven years" and "ensuing years," it is your testimony 13 says --
14 that means the same thing as the next few years? 14 Q. Could you explain a little more? Line 14. Answer, right?
15 A. No. I don't know that I have in my head a precise 15 Question -- his answer is, "Could you explain." His answer is
16 definition of "few." 16 a question. Could you explain a little more?
17 Q. OK. But you expect Mr. Olivieri to have had an exact 17 Your question is, "Well, as I understand it, the first
18 definition of "few"? 18 time you met James Murray was right after he became a member,
19 MR. LANPHER: Objection, your Honor. 19 is that right?"
20 THE COURT: Sustained. 20 A. That's right.
21 Q. Let's look back. Let's give this context, because on the 21 Q. Yes. So he sets a beginning time. So you are setting a
22 very same page or the page before, you describe the same time22 time period, right?
23 period as when you first met him and when you started meeting 23 A. Right.
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with James Murray about the delinquencies, right? Q. And then second: "And then in the next few years, he would
2 A. I never said those words were equivalent. 2 occasionally come to association events."
Q. What? You are setting the time period.
3 A. I never said they were equivalent. 3 And then Mr. Olivieri just says, "Yes."
Q. OK. I said, in context, the very page before. You say, And then the next question, now that you've set the
4 when you first met him and when you started having delinquency 4 time period, is: "Did you ever talk to James Murray outside of
5 meetings. OK. 187, line 16 through 19, if you want to refresh 5 that kind of event?"
6 yourself. 6 Do you see that?
7 Then the next page, right, one page worth of 7 A. I see that. But the question on line 19 goes beyond just
8 conversation. He asked you to explain what you're talking 8 setting a time period. It's going back. It's going back to
9 about, the time period. And you say when you first met him and 9 his reference to golf outings, Christmas parties, that kind of
10 then for the next few years. OK? 10 stuff.
11 And that doesn't fit with your understanding that 11 Q. The reference that you've already told us was restricted to
12 those two time periods were the same? 12 the time period of when he started to know him and when the
13 A. One puts an end -- I mean, one asks from going backwards 13 delinquencies began, right?
14 and one asks going forward. In effect, they're covering that 14 MR. LANPHER: Objection, your Honor.
15 same period between 2000 and whenever those delinquency 15 THE COURT: Sustained. Asked and answered.
16 meetings were. 16 Mr. Gardner, let's move on.
17 But the point I'm saying in the next few years is to 17 BY MR. GARDNER:
18 say, all right, start it from the time you met him going 18 Q. Would you mind turning to page 190.
19 forward from there. 19 Again, we're talking about -- correct me if I am
20 Q. Oh, so did you at some point say start from the point you 20 wrong, you are asking him did he ever become aware that Walter
21 met him until today? 21 Mack was investigating him, on page 189, the end of that. Then
22 A. I don't see that specific wording, no. 22 it flows into -- not "him" meaning Olivieri, but did you ever
23 Q. And you did confine -- you disagreed maybe ten minutes ago23 learn that -- did Mr. Olivieri ever learn that Walter Mack was
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Page 355 Page 357
investigating On Par? the next few years," right?
2 Do you see that at the end of 189? 2 A. Yes.
A. I see that on 190, yes. Q. Then he says -- you ask him: "You could have, but you do
3 Q. And Mr. Olivieri indicates to you that he did hear 3 recall if you did?"
something to that, right? He said -- Mr. Olivieri said -- "I'm not 100 percent
4 A. Yes. 4 sure. No, I can't -- I don't recall."
5 Q. And then again I'm going to ask you about the timeframe. 5 Then the question is: "Did you ever do business with
6 On line 7, there is a question: "Do you recall if it 6 James Murray?"
7 was before or after you began meeting with James Murray about 7 The immediate next question, right?
8 his delinquencies to the Benefit Funds?" 8 And he says: "I never did business with James Murray
9 Do you see that? 9 himself."
10 A. When he first heard about the Mack investigation, yes. 10 Do you see that?
11 Q. Right. And he says, "I think it was after. It might have 11 A. Yes.
12 been -- let's see. I'm not a hundred percent sure, but it 12 Q. Did Mr. Olivieri ever tell you, no, he never did business
13 could have been after." 13 with James Murray?
14 Do you see that? 14 A. He said he never did business with James Murray.
15 A. Right. 15 Q. He says himself, right?
16 Q. So, again, you're asking a question about meetings between 16 A. Yes.
17 Mr. Olivieri and Jim Murray, correct? 17 Q. Did you ask any follow-up questions regarding what himself
18 A. I used that as a point of reference to try to establish 18 means?
19 when Mr. Olivieri first learned about the Mack investigation. 19 A. No.
20 Q. Right. But your point of reference is meetings that 20 Q. At the time you took -- again, the Court is telling me to
21 Mr. Olivieri had with Mr. Murray. 21 move on about the time period that we are talking about. So
22 A. Yes. 22 either we're talking about the time period when he first met
23 Q. There is no doubt in your mind that Mr. Olivieri has 23 Jim Murray to the time --
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already testified on a number of occasions that he met in a MR. LANPHER: Objection, your Honor.
2 series of meetings with Mr. Murray, right? 2 Q. -- a few years later --
A. That's right. He said that. THE COURT: Sustained.
3 Q. OK. And regarding delinquency and the audits and the like, 3 MR. GARDNER: I can't ask the question.
right? Q. We have a dispute. It is either one or two time periods.
5 MR. GARDNER: If I may just have one moment, your 5 THE COURT: Sustained.
6 Honor? I'm sorry. 6 Q. From the time December 18, 2007, or thereabouts, you were
7 (Pause) 7 aware that Mr. Olivieri performed site work at a
8 Q. I am going to bring you back for a second. 8 construction -- not Mr. Olivieri himself but a company owned by
9 I apologize, your Honor. 9 Mr. Olivieri performed site work at a construction site in
10 We were just having the discussion about page 188, 10 Riverdale?
11 where he asked you to explain and the timeframe. And then if 11 A. Yes.
12 you turn to the question on the bottom of 188: "Did you ever 12 Q. OK. And when we say "site work," what did you understand
13 talk to James Murray outside of that kind of event?" 13 that to mean?
14 OK. And then he says, "Outside of an association?" 14 A. I understood -- well, partly from what he told me, do you
15 Question. 15 want me to limit myself to before or after? I understand --
16 "Outside of an association, event or a party." 16 Q. Before.
17 Right? 17 A. Before?
18 A. Right. 18 Q. Yes.
19 Q. And he says, "Yes, I could have saw him at something else."19 A. Before I did not have an understanding of precisely what
20 Right? 20 kind of work he did.
21 These questions followed -- these are the immediate 21 Q. What did he tell you?
22 questions following the question and answer that we were just 22 A. He told me he did excavation work.
23 talking about, about that contains the sentence "and then in 23 Q. Did he explain to you that that's the first thing that's
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Page 359 Page 361
done at the site? you.
2 A. Yes. 2 MR. LANPHER: Your Honor, nothing from the government.
Q. During the deposition, did you ever ask Mr. Olivieri if Jim THE COURT: Thank you. You may step down.
3 Murray was involved in that Riverdale project? 3 THE WITNESS: Thank you, your Honor.
A. At the deposition did I ask him that? I think I did ask (Witness excused)
4 him that. 4 THE COURT: We have been going for over two hours so I
5 Q. You did? 5 am going to take the lunch break at this point so as not to
6 A. I thought I did. I thought I asked him if they had -- 6 interrupt the next witness.
7 well, if you have a specific thing you can point me to? 7 As you go out to lunch, do not discuss the case among
8 Q. If you're asking questions about that Riverdale job site, 8 yourselves nor with anyone else on the outside or have any
9 would it have -- would you think, as you sit here now, would it 9 contact about the case with anyone. If any of these things
10 be your natural thing to do to ask him specifically about Jim 10 occur, you are directed to inform the Court immediately.
11 Murray? 11 It is 12:25. We will return in one hour, 1:25.
12 MR. LANPHER: Objection, your Honor. 12 (Luncheon recess)
14 Q. Well, when you said you think you would have asked him to 14
15 use Jim Murray's name, why did you say that? 15
16 MR. LANPHER: Objection, your Honor. 16
17 THE COURT: All right. Sustained. 17
18 Rephrase the question. 18
19 Q. You said you think you asked him -- why don't you restate 19
20 what you said. 20
21 A. I did not -- I think I asked him about that job site. I 21
22 think I asked him about the company that did that work. I 22
23 don't think I said, and I certainly did not mean to say, that I 23
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1 0aldoli3 Torrance - cross 1 0ALZOLI4
asked him specifically about Jim Murray on that job site, but I A F T E R N O O N S E S S I O N.)
2 was asking him in the context of whether he had a relationship 2 1:30 p.m.
with Jim Murray. (In open court; jury not present)
3 Q. When you asked this question on page 189, "Did you do 3 THE DEPUTY CLERK: All rise.
business with James Murray," what were you referring to? THE COURT: Be seated.
4 A. Well -- 4 Before we begin -- be seated, please. Let me just
5 MR. LANPHER: Objection, your Honor. 5 confirm the understanding of the Court and the parties that the
6 THE COURT: Overruled. 6 juror who, alternate juror who was substituting for Ms. Banner
7 A. It is an open-ended question, but I did understand that 7 is the next one in line that is now number four, Ms. Doman.
8 they had a relationship, a business relationship, and at least 8 MR. GARDNER: Yes, your Honor.
9 one work site involved in that business relationship was the 9 MS. ZORNBERG: Yes, your Honor.
10 Riverdale Cambridge Avenue work site. 10 MR. GARDNER: That's my understanding.
11 I'm not sure if that answers your question. 11 THE COURT: All right. And the parties have something
12 Q. Did you have any information that Mr. Olivieri had an 12 they wanted to bring up?
13 agreement with Jim Murray in any way? 13 MR. LANPHER: Yes, your Honor The next witness
14 A. Did I have any indication of that? Yes. That was my 14 government intends to call is Special Agent Dan Conlon, who
15 understanding. 15 will testify as to surveillance that he did of Mr. Moscatiello
16 Q. As we sit here today, do you believe that to be so? 16 and Mr. Olivieri; in particular, a meeting that he surveilled
17 A. I don't -- 17 him at, and where he overheard parts of their conversation.
18 MR. LANPHER: Objection, your Honor. 18 We previously briefed the admissibility of this
19 THE COURT: Sustained. 19 evidence and testimony to the Court, and we intend to put in
20 MR. GARDNER: Your Honor, may I have just one moment? 20 into evidence precisely what Special Agent Conlon overheard,
21 THE COURT: Yes. 21 which is portions of a conversation.
22 (Pause) 22 Defense counsel -- and the Court previously ruled that
23 MR. GARDNER: No further questions, your Honor. Thank23 the testimony would be admissible. Certainly that's the
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1 0ALZOLI4 1 0ALZOLI4
Government's understanding. conversation.
2 Defense counsel informs us that he intends to object 2 And at the very end, long after my client has said
to any portions of the overheard conversation where anything, the very last statement or almost by Lou Mosciatello
3 Mr. Olivieri is not speaking or, put another way, he objects to 3 is talking about call the District Council. That's it. And oh
the admission of testimony about what Special Agent Conlon and taking -- and then little bit after taking jobs for cash,
4 heard Mr. Moscatiello saying to Joseph Olivieri. Obviously we 4 it's the very last thing.
5 think those snippets of conversation that Special Agent Conlon 5 There is no response, there is no context. And I
6 overheard are directly relevant. They tend to show what the 6 would say this, your Honor. Although the jury hasn't seen the
7 meeting was about. And I'm happy to pass up to the Court a 7 indictment yet, that's not what my client's charged with.
8 copy of the surveillance report where the statements are listed 8 Those questions were asked of my client at the
9 out, or a copy of the Court's prior order on this subject. 9 deposition. He answered those questions no no no, and there
10 THE COURT: Thank you. 10 were no perjury charges for those questions. That's what I was
11 Mr. Gardner. 11 trying to elicit.
12 MR. GARDNER: Yes, your Honor. I did flag the issue 12 But so, it is more in the vein of, look, if their case
13 for counsel. Your Honor, we have our objection by our motion 13 is that they did meet and he said they never met and that's
14 to the testimony at all, and the Court has ruled that the 14 what they're putting before the jury, I do get it. Then, you
15 detective can testify. My -- 15 know, this could be evidence that they met; they were in the
16 THE COURT: Is this a motion for reconsideration? 16 same place at the same booth, maybe having a cup of coffee or
17 MR. GARDNER: Not really, your Honor, more for 17 whatever. But the conversation is itself is different.
18 clarification. Because the Court said that he can testify 18 THE COURT: You're overlooking the materiality element
19 about the meeting and as a relationship issue and state, and I 19 of what's involved here. Whatever they met about has to be
20 understand that and I appreciate it. 20 material to the subject for the questioning. And if that
21 The problem is when there is a conversation, my client 21 conversation, in that conversation Mr. Moscatiello is making
22 says two words and then the rest, or three words I should say, 22 statements that give some indication that they had a
23 and then the entire rest of the conversation, the whole rest of 23 relationship and that that relationship in some way touched
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1 0ALZOLI4 1 0ALZOLI4
the page is just Lou Mosciatello talking. My client appears upon your client's position at the funds, then it's material.
2 nowhere on that. 2 Mr. Lanpher.
So they want to have the detective testify, knowing MR. LANPHER: Your Honor, I think has it exactly
3 that they were in the same place and the same booth talking, 3 right. And all of the arguments defense counsel makes, he's
which I understand he can do, but also just a whole description entitled to make during cross-examination or in summation.
4 of what Lou Mosciatello is saying not even being responded to 4 He's entitled to those arguments. But that doesn't go to the
5 by my client. It's just a way of getting Mosciatello's 5 admissibility of this testimony. And, indeed, as mentioned
6 statements before the jury, not even really part of the 6 before, I think this has previously been litigated and ruled
7 conversation, just him, his statements. 7 upon by the Court.
8 THE COURT: All right. Mr. Gardner, if Mr. 8 MR. GARDNER: I just -- Lou Mosciatello testifying
9 Moscatiello's statements were about the World Series or about 9 about -- if it was my own client's statement, your Honor, of
10 how where he went to vacation last year and what he did is one 10 course. But this is Lou Mosciatello who is deceased, who I
11 thing. But if the government is saying that Mr. Moscatiello 11 cannot subpoena to come in, statements from 2000, and that's
12 and Mr. Olivieri had a business relationship that had something 12 what we're going to inculpate Mr. Olivieri about, it's a little
13 to do with the Carpenters Union, and Mr. Moscatiello is saying 13 bit of a stretch.
14 something that pertains to that, then I think it's entirely 14 THE COURT: I think, Mr. Gardner, if you have an
15 relevant and proper. 15 objection, then that would be classified in terms of the Rules
16 MR. GARDNER: But, your Honor -- 16 of Evidence.
17 THE COURT: It gives context to the government's 17 You're saying that Mr. Moscatiello's statements are
18 allegation that they had a relationship dealing with the 18 hearsay, presumably that's your objection.
19 Carpenters Union. 19 MR. GARDNER: Well, it's --
20 MR. GARDNER: Two things, if I may. One is most of 20 THE COURT: Now hearsay would be hearsay if they were
21 the conversation is about other people and other things. One 21 being offered for the truth. And what Mr. Moscatiello may have
22 person has an IRS problem. My client says, oh, boy he's F'd 22 said about some other person over the, or the Yankees or
23 and that kind of -- that's the nature of most of the 23 whatever it is, is not being offered for the truth. It's being
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1 0ALZOLI4 1 0ALZOLI4 Conlon - direct
offered for the fact that they had some relationship that A. Yes, I do.
2 touched upon the Carpenters. Whether it was true or not, the 2 Q. Who is that?
context may give information to the jury about whether or not A. That's a photo of Louis Mosciatello.
3 there what they had discussed in that conversation established 3 Q. Now, when did you first become involved in the
a relationship related to the Carpenters. investigation of Mr. Moscatiello?
4 MR. GARDNER: Okay, your Honor. 4 A. It would have been around spring time 1999, I believe.
5 THE COURT: All right. 5 Q. What were you investigating him for doing?
6 Shall we call in the jury, please. 6 A. Mostly labor racketeering.
7 THE DEPUTY CLERK: All rise. 7 Q. Were you the lead case agent on that investigation?
8 (Jury entering) 8 A. Yes, I was.
9 THE COURT: Thank you. Be seated. 9 Q. In the course of your investigation, did you conduct
10 All right, government. 10 surveillance on Mr. Moscatiello?
11 MR. LANPHER: Your Honor, the government calls Daniel 11 A. Yes, I did.
12 Conlon. 12 Q. What are some of the locations where you surveilled him?
13 DANIEL CONLON, 13 A. Primarily it was his office of business Pelham Bay
14 called as a witness by the government, 14 Brokerage in the Bronx, and also his residence too.
15 having been duly sworn, testified as follows: 15 Q. What is Pelham Bay Brokerage?
16 DIRECT EXAMINATION 16 A. It's an insurance office on Bruckner Boulevard in the
17 BY MR. LANPHER: 17 Bronx.
18 THE COURT: Mr. Lanpher. 18 Q. Is that where Mr. Moscatiello worked?
19 MR. LANPHER: Thank you, Judge. 19 A. Yes, it is.
20 Q. Good afternoon, Mr. Conlon. 20 MR. LANPHER: May I approach, your Honor?
21 A. Good afternoon. 21 THE COURT: Yes.
22 Q. What do you do for a living? 22 Q. Mr. Conlon, I'm showing you what's been marked as
23 A. I'm a Special Agent with the FBI. 23 government Exhibit 655 and 656. Do you recognize those?
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1 0ALZOLI4 Conlon - direct 1 0ALZOLI4 Conlon - direct
Q. How long have you been with the FBI? A. Yes, I do.
2 A. 22 years. 2 Q. What are they?
Q. Before you were an FBI Agent, what did you do? A. First photo 655 is a photo of Pelham Bay Brokerage.
3 A. I was employed by the FBI as an investigative specialist. 3 Q. What about 656?
Q. With the FBI, are you assigned to any particular squad? A. That's a photo of Louis Mosciatello in front of the Pelham
4 A. I'm currently assigned to a violent crime squad in White 4 Bay Brokerage.
5 Plains office. 5 MR. LANPHER: The government offers government
6 Q. How long have you been with that squad? 6 exhibits 655 and 656?
7 A. Just over seven years. 7 MR. GARDNER: As demonstrative evidence, your Honor,
8 Q. Prior to joining the violent crime squad, were you assigned 8 no objection.
9 to a different squad? 9 MR. LANPHER: Your Honor, we would move them as
10 A. Yes, I was. 10 substantive evidence.
11 Q. What squad were you assigned to? 11 THE COURT: All right, admitted. Objection noted.
12 A. I was a designed to squad C-5, which is a Genovese 12 MR. GARDNER: No objection, your Honor.
13 organized crime squad. 13 THE COURT: Admitted without objection.
14 Q. Generally, could you describe what your duties were as a 14 (Government's Exhibits 655 and 656 received in
15 Special Agent with the Genovese organized crime family squad?15 evidence)
16 A. We conducted investigations into various members of the 16 MR. LANPHER: Ms. Geier, could you put up government
17 Genovese crime family. 17 Exhibit 655.
18 Q. Did there come a time when you became involved in an 18 Q. And so this is Pelham Bay Brokerage?
19 investigation of someone named Louis Mosciatello, Sr.? 19 A. Yes, it is.
20 A. Yes, I did. 20 Q. Could you explain what you can see on the photo, the road?
21 MR. GARDNER: Ms. Geier, could you put up government 21 A. Yes. It's actually, it's located above Bruckner, the
22 exhibit 50. 22 Bruckner Expressway. So that's kind of like the top of the
23 Q. Do you recognize that photo? 23 Expressway right there in the photograph.
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Page 371 Page 373
MR. GARDNER: Could I possibly ask the Court Clerk to usually he would come out, reenter his vehicle, then just drive
2 dim the lights a bit so we can see the photo a bit better? 2 home.
Q. So that's the Bruckner Expressway you said? Q. But on that date he went to Jimmy Ryan's Bar?
3 A. Yes. A photo was taken on the other side of the, of the 3 A. Yes, he did.
expressway. Q. Approximately, how far was that from Pelham Bay Brokerage?
4 Q. Did you take that photo? 4 A. Approximately a mile.
5 A. Yes, I did. 5 MR. LANPHER: May I approach?
6 MR. GARDNER: Could we put up government Exhibit 656?6 THE COURT: Yes.
7 Q. And what is that a photo of? 7 Q. Showing you what's been marked as government exhibit 26.
8 A. That's a photo of Louis Mosciatello in front of Pelham Bay 8 Do you recognize that?
9 Brokerage. 9 A. Yes, I do.
10 Q. What sorts of things did you observe when you surveilled 10 Q. What is that?
11 Mr. Moscatiello at that location? 11 A. It's a photo of Jimmy Ryan's Bar.
12 A. He would meet a lot of people, usually with organized crime 12 MR. LANPHER: Your Honor, the government offers
13 background, a lot of Union officials also. 13 government exhibit 26 in evidence.
14 Q. Turning your attention to July 24th, 2000, did you conduct 14 MR. GARDNER: No objection, your Honor.
15 surveillance of Mr. Moscatiello on that date? 15 THE COURT: Admitted without objection.
16 A. Yes, I did. 16 (Government's Exhibit 26 received in evidence)
17 Q. Could you explain what you did? 17 MR. LANPHER: Could we put that up, Ms. Geier.
18 A. I started surveillance about 4:00 p.m., and shortly after I 18 Q. So that's the bar you saw Mr. Moscatiello enter?
19 arrived on the scene he came out of the office. 19 A. Yes, it is.
20 Q. You say you started surveillance approximately 4:00 p.m., 20 Q. What did you do after he entered the bar?
21 was that at Pelham Bay Brokerage? 21 A. I pulled over, I parked, I got out and went inside.
22 A. Yes, it was. 22 Q. Were you wearing any kind of uniform at the time; how were
23 Q. How long did you stay there watching the office before Mr. 23 you dressed?
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Page 372 Page 374
Moscatiello came out? A. I was dressed down in jeans.
2 A. It wasn't long. Just a matter of minutes. 2 Q. What did you see when you entered the bar?
Q. And what did -- what happened when he left the office? A. I walked inside. I observed where he was seated, which was
3 A. He came out of the office, got into his car and proceeded 3 at a booth just off the bar around the middle of the
south on Bruckner. restaurant, and I walked inside, I sat at the bar.
4 Q. What did you do? 4 Q. Was Mr. Moscatiello sitting alone or with someone else?
5 A. I followed him. 5 A. He was with somebody.
6 Q. What kind of car were you driving? 6 Q. When you saw that person, did you recognize him?
7 A. It was an unmarked car. 7 A. No, I didn't.
8 Q. Where did Mr. Moscatiello go? 8 Q. Did you subsequently identify who that person was?
9 A. He continued south and he pulled over a few blocks at a 9 A. Yes.
10 mailbox. 10 Q. Who was it?
11 Q. What happened then? 11 A. Joseph Olivieri.
12 A. He got out of the car and put some letters in the mailbox. 12 Q. I'm going to show you government exhibit 22 and 25. Do you
13 Q. What happened after that? 13 recognize those?
14 A. Got back in his car, continued south on Bruckner, then made14 A. Yes, I do.
15 a right turn on Middletown Road. 15 Q. What are they?
16 Q. Where did he go? 16 A. Both are photos of the inside of Jimmy Ryan's Bar.
17 A. He went to Jimmy Ryan's Bar. 17 Q. Now, are those photos an accurate depiction of how the bar
18 Q. Was this a typical thing for Mr. Moscatiello to do? 18 looked in July 2000?
19 A. No, it wasn't. 19 A. Yes.
20 Q. Could you explain that? 20 MR. LANPHER: Government offers government exhibits 22
21 A. Usually his pattern, he would come out of the office, most 21 and 26 in evidence?
22 times he would go home usually. 22 MR. GARDNER: No objection.
23 I've done a number of surveillances like this where 23 THE COURT: Admitted without objection.
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Page 375 Page 377
(Government's Exhibits 22 and 26 received in evidence) Q. How did their conversation come to an end?
2 MR. LANPHER: Could we put up government exhibit 22. 2 A. Both of them got up and walked towards the door.
Q. Mr. Conlon, Special Agent Conlon, I'm handing you a pointer Q. Did they leave together?
3 and would ask you to point out on that photo where Mr. 3 A. No.
Moscatiello and Mr. Olivieri were siting in the bar? Q. What happened?
4 A. They were seated at this booth right here in this area. 4 A. Mr. Moscatiello went out the front door and Mr. Olivieri
5 Q. And where did you sit? 5 stayed inside.
6 A. I sat at the bar, but facing them at this location right 6 Q. For how long?
7 here. 7 A. I would say just a minute or two.
8 Q. How crowded was the bar at the time? 8 Q. What was he doing?
9 A. I don't believe it was that crowded. 9 A. He was looking out the front door looking in that
10 MR. LANPHER: Now, could we put up government exhibit 10 direction.
11 25? 11 Q. What happened next?
12 Q. And what does that photo depict? 12 A. He went outside, he exited.
13 A. That's the view I would have had of them. 13 Q. What did you do?
14 Q. And can you use the pointer again to show where 14 A. I left where I was, I walked to the front of the bar where
15 Mr. Olivieri and Mr. Moscatiello were sitting? 15 the door was, and I looked out the window.
16 A. They were seated right here, these booths. I was seated 16 Q. What could you see?
17 right there. 17 A. I could see Mr. Olivieri in front talking on the cell
18 Q. Now, let's go back to -- 18 phone.
19 MR. LANPHER: Actually, you can leave that up, 19 Q. And what happened after that?
20 Ms. Geier. 20 A. He met somebody in front and greeted them.
21 Q. After you sat down, what did you do? 21 Q. And then what did he do?
22 A. I got something to eat. 22 A. He got into a vehicle and he pulled out.
23 Q. And what were Mr. Olivieri and Mr. Moscatiello doing? 23 Q. And did you take down the license plate of this car?
25 (212) 805-0300 25 (212) 805-0300
Page 376 Page 378
A. They were seated at the booth, inside the booth. A. Yes, I did.
2 Q. Could you hear what they were saying to each other? 2 Q. What did you do after that?
A. Yes, I could. A. Once he left the area, I left and went back to my vehicle.
3 Q. Could you hear everything or just bits, parts of the 3 Q. Now, how significant or insignificant was this surveillance
conversation? in your investigation?
4 A. Not everything, just parts. 4 MR. GARDNER: Objection, your Honor.
5 Q. What did you do as you sat there after getting food? 5 THE COURT: Overruled.
6 A. I listened to what they were saying. Whatever I could 6 A. It was significant 'cause it kind of stood out from his
7 overhear I wrote down. 7 usual pattern.
8 Q. How did you go about writing it down, do you recall? 8 Q. As you sit here today, do you recall word for word what you
9 A. I had a newspaper I used, I folded it up, almost looked 9 overheard of the conversation between Mr. Olivieri and Mr.
10 like I was doing a crossword. I used that. 10 Moscatiello?
11 Q. Was that typical of how you practiced note taking at the 11 A. No, I don't.
12 time? 12 Q. Showing you what's been marked for identification as
13 A. Yes, it is. 13 government Exhibit 650, do you recognize that?
14 Q. Why did you do it that way? 14 A. Yes, I do.
15 A. In that, in that situation in a bar, it just kind of 15 Q. What is that?
16 blended in the bar. 16 A. These are my notes.
17 Q. How long did you sit and watch Mr. Olivieri and Mr. 17 Q. And when you say those are your notes, how are you able to
18 Moscatiello's conversation? 18 recognize them?
19 A. About 40, 45 minutes. 19 A. It's my handwriting.
20 Q. Were they eating anything or drinking anything as they sat? 20 Q. Are they the notes that you were taking on the newspaper
21 A. I don't remember exactly. They may have had drinks. 21 you described?
22 Q. But you don't recall specifically one way or another? 22 A. Yes. I copied the notes from my newspaper on to the
23 A. No. 23 looseleaf.
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Page 379 Page 381
Q. How soon after the conversation did you do that? between LM and JO was overheard by Special Agent Conlon.
2 A. I would say same day probably, when I came out. 2 And LM and JO are reference to Mr. Moscatiello and
Q. Having looked at -- could you take a moment to look at Mr. Olivieri?
3 those notes? 3 A. Yes.
A. Yes. MR. LANPHER: Now, could we zoom in on the next few
4 Q. If you look at those, are you able to independently recall 4 lines? Let's actually zoom in on a bit larger chunk. Thanks.
5 what was said or do you need the notes to do that? 5 Q. Now, Special Agent Conlon, could you read the first block?
6 A. I need the notes. 6 A. I met with Joey on Friday, called me on Friday. He's
7 MR. LANPHER: Your Honor, the government offers 7 living with his sister. The whole family is pissed with Artie.
8 government Exhibit 650 in evidence. 8 Q. Now as you sit here today, do you know who Mr. Moscatiello
9 MR. GARDNER: You have my objection, your Honor. 9 is talking about when he said "Joey"?
10 THE COURT: Admitted. Your objection is noted. 10 A. No, I don't.
11 (Government's Exhibit 650 received in evidence) 11 Q. And where it says (UI), What does that mean?
12 Q. Special Agent Conlon, I'm showing you what's been marked as 12 A. Unintelligible. I couldn't hear what they were saying.
13 government Exhibit 651 for identification. What is that? 13 Q. Now, as you sit here today, do you recall whether or not
14 A. This is the FD-302 I completed. 14 all of those things in that block were said at once or whether
15 Q. What's a -- what is the term you just used? 15 there was interruption; do you recall one way or another?
16 A. It's an FD-302. 16 A. It was kind of in pieces. I would hear it. It was
17 Q. What is that? 17 separate.
18 A. It's a summary of conversation that I overheard. 18 Q. Let's go on to the next block. Could you read that to the
19 Q. Is that a standard FBI document that an agent prepares 19 jury?
20 after events of significance? 20 A. I told Mickey, Mickey's being audited by the IRS. He's
21 A. Yes, it is. 21 fucked, he knows he's fucked.
22 Q. How are you able to recognize that? 22 Q. And it says Mickey LNU. What does LNU mean?
23 A. I initialed the bottom. 23 A. It's an abbreviation for last name unknown.
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Page 380 Page 382
Q. When is it dated? Q. Does that mean you weren't able to hear a last name when
2 A. July 24th, 2000. 2 Mr. Moscatiello said Mickey?
Q. Is that the date you prepared it or is that the date of the A. No, I wasn't.
3 events that are described? 3 Q. What's the next line?
A. That's the day of the events. I actually prepared it on A. He's fucked.
4 July 27th, 2000. 4 Q. And that's something you heard Mr. Olivieri say?
5 Q. Does that document contain additional information from your 5 A. Yes.
6 notes or is it just what was in your notes? 6 Q. And then it says unintelligible?
7 A. Just the information in my notes. 7 A. Yes.
8 Q. Does it also include information about the license plate 8 Q. Now the next few lines, could you read?
9 and the events preceding the conversation? 9 A. He's still responsible for the funds. He has obligation.
10 A. Yes, it does. 10 Q. Now, as you sit here today, do you recall whether that was
11 MR. LANPHER: Your Honor, government offers government 11 directly after what Mr. Olivieri said or whether there was an
12 Exhibit 651 in evidence. 12 additional break?
13 MR. GARDNER: We have our objection, your Honor. 13 A. I don't recall if it was, if there was, it was right after
14 THE COURT: Admitted. 14 the conversation.
15 (Government's Exhibit 651 received in evidence) 15 Q. Could you read the next block?
16 Q. All right, Special Agent Conlon -- 16 A. They're chasing after petty shit, we're losing people.
17 MR. LANPHER: Let's put up or, Ms. Geier, let's put up 17 Q. Keep going?
18 government Exhibit 651 on the screen. And could we zoom in on 18 A. FNU Ford wants somebody. Get it done as fast as possible.
19 the top paragraph? 19 Q. What is FNU a reference to?
20 Q. So this says on July 24, 2000 between 4:15 p.m. and 20 A. That's an abbreviation for first name unknown.
21 4:55 p.m., Louis Mosciatello, Joseph Olivieri were observed 21 Q. In the course of your investigation with Mr. Moscatiello,
22 meeting inside Jimmy Ryan Bar and Restaurant, located at 3005 22 do you identify anyone with the last name Ford?
23 Middletown Road, Bronx, New York. The following conversation, 23 A. Yes.
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Page 383 Page 385
Q. Who? Q. Do you know who Mr. Moscatiello was referring to there?
2 A. Michael Forde. 2 A. No, I don't.
Q. Who is that? Q. Could you read on?
3 A. He was the head of the District Council in the Carpenters 3 A. Resolve the problem. If he wants to get off the job, the
Union. top notch guy from Manhattan.
4 Q. And to be clear, who, based on your report, who said get it 4 Q. And, again, do you know who he was referring to when he
5 done as fast as possible? 5 said, if he wants to get off the job?
6 A. Lou Mosciatello. 6 A. No.
7 Q. Could you keep reading? 7 Q. Can you read the next block?
8 A. They had a problem, they had a problem, they sent for him. 8 A. Opposition down the line. 80 to 90 a year. Take the beef
9 Is he pushing me to do that? Is he hiding something? 9 upstairs.
10 Q. Now, as you it here today, do you know who Mr. Moscatiello 10 Q. Have you ever heard that term in the course of your
11 was referring to when, they said him or he? 11 investigations, take the beef upstairs?
12 A. No. 12 MR. GARDNER: Objection, your Honor.
13 Q. Let's go to the next block and read what Mr. Moscatiello 13 THE COURT: Sustained.
14 said? 14 Q. Could you read on?
15 A. He told Mickey he fucked up. Nickey, last name unknown, is15 A. Scared the shit out of him. Bob Gill. I saw Carl today.
16 trying to get into bed with Mickey, last name unknown. 16 Q. Do you know who Bob Gill is?
17 Q. Do you know who he was referring to when he said Nickey? 17 A. No.
18 A. No, I don't. 18 Q. What does the next line or next block say?
19 Q. Now, could you keep reading at the bottom? 19 A. I don't want to meet with anybody. I don't want to meet
20 A. Wedding Saturday night, Alan. He thanked everyone who 20 with anybody. I don't want to meet with anybody.
21 cancelled barbecues to come. I got home at 10:00 o'clock last 21 Q. Now, do you recall how Mr. Moscatiello said those words?
22 night. I was wiped out today. 22 A. He seemed pretty emphatic.
23 MR. LANPHER: Could we put up the next page, 23 MR. LANPHER: Ms. Geier, could we put up government
25 (212) 805-0300 25 (212) 805-0300
Page 384 Page 386
Ms. Geier. Let's just -- you can, just the top two-thirds Exhibit 650, and go to the last page, third page. And zoom in
2 there, a little more. 2 on the middle there.
Q. Could you read at the top? Q. These are your notes?
3 A. I was out on the Island today to see Carl. He's got a 3 A. Yes, they are.
problem with us. When we told people to beat you, he's got an Q. And does that, "I don't want to meet with anybody," and you
4 attitude. 4 had it underlined, is that correct?
5 Q. And there are two, there are breaks where it says 5 A. Yes.
6 unintelligible. Do you know if all those things were said 6 Q. And where it says 3X, does that mean three times?
7 right after, right after one another or whether there were 7 A. Yes.
8 longer breaks? 8 MR. LANPHER: Could we go back to government Exhibit
9 A. I think they were close together, but some may have been 9 651. Let's just zoom on that last section.
10 separated a bit more than others. 10 Q. So after he said that, what did you hear Mr. Moscatiello
11 Q. And the name Carl, did you identify anyone with the name of11 say?
12 Carl in the course of your investigation of Mr. Moscatiello? 12 A. Call the District Council. Manny, last name unknown,
13 A. Yes, I did. 13 Manny's gonna come right at you. Taking jobs for cash.
14 Q. Who was that? 14 Q. Now, do you know, for example, who Manny was?
15 A. Carl Carrara. 15 A. No.
16 Q. Could you read the next line? 16 Q. And do you know what jobs Mr. Moscatiello was referring to?
17 A. They asked me? 17 A. No, I don't.
18 Q. Who said that? 18 Q. Aside from what's in your notes and your report, do you
19 A. Joseph Olivieri. 19 remember anything else that you overheard Mr. Olivieri and Mr.
20 Q. Do you know who he's referring to when he said "they"? 20 Moscatiello saying that day?
21 A. No. 21 A. No, I don't.
22 Q. What does the next block say? 22 MR. LANPHER: May I have a moment?
23 A. He's a sharp kid, if we lose him, he's our eyes and ears. 23 Nothing further, your Honor.
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Page 387 Page 389
1 0ALZOLI4 Conlon - direct 1 0ALZOLI4 Conlon - cross
THE COURT: Thank you. A. Yes.
2 Mr. Gardner. 2 Q. Not exactly the location you would pick for a secret prior
MR. GARDNER: Thank you, Judge. meeting, right? You said the bar wasn't that crowded, right?
3 CROSS EXAMINATION 3 A. Maybe a few people at the bar I think, but the restaurant
BY MR. GARDNER: wasn't that crowded.
4 Q. Good afternoon, Agent Conlon. 4 Q. Okay. Now, at the end he says, where I don't want to meet
5 A. Good afternoon. 5 with anybody, I think is all --
6 Q. You testified that previously you were on this task force 6 MR. GARDNER: And if I can, your Honor, I'd ask that
7 for the Genovese family? 7 the government place back up the second page of the typewritten
8 A. Yes. 8 notes?
9 Q. How long were you on that task force? 9 THE COURT: All right.
10 A. Just about eight years, approximately. 10 MR. GARDNER: Thank you.
11 Q. I'm sorry, eight years? 11 Q. So after that one, the statement at the top says, "From Joe
12 A. Eight years, yes. 12 Olivieri they asked me," that's a question, right?
13 Q. From what period of time to what period of time? 13 A. Yes.
14 A. 1996 to 2003. 14 Q. You see that?
15 Q. And as part of your job responsibilities as an agent that 15 A. Yes.
16 in that group, you were following Lou Mosciatello? 16 Q. And after that, you don't overhear Joe Olivieri saying
17 A. Among others, yes. 17 anything?
18 Q. And were others in that group following Lou Mosciatello as 18 A. No, I don't, no.
19 well? 19 Q. Do you know about when that was in the conversation,
20 A. Yes, at different times. 20 midpoint beginning, end?
21 Q. Prior to this day, you didn't know Joseph Olivieri, 21 A. I would say approximately in the middle.
22 correct? 22 Q. And at the very tail end of what you could hear, three
23 A. No. 23 times I don't want to meet with anybody, you said that was said
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Page 388 Page 390
1 0ALZOLI4 Conlon - cross 1 0ALZOLI4 Conlon - cross
Q. And during those entire eight years, from 1996 to 2003, you a little loud so you could hear that?
2 had never observed a conversation or meeting or other 2 A. Yeah. From what I recall he was emphatic about that. He
communications between Lou Mosciatello and Joseph Olivieri, probably said it a little bit louder than normal tone.
3 correct? 3 Q. Okay. But then right after that he says UI. And UI stands
A. Not that I recall, no. for what?
4 Q. The only time was this July of 2000, right? 4 A. Unintelligible.
5 A. Yes. 5 Q. So then there is a break, and then there's a something,
6 Q. And then there are two pages of the typed notes that were 6 call the District Council?
7 put up on the board? 7 A. He may have said something after that. I didn't hear it.
8 A. Yes. 8 Q. So before the words "call the District Council," you don't
9 Q. This was a 45 minute, 50 minute meeting conversation having9 hear that conversation and you don't hear the conversation
10 a drink together when they were in the bar? 10 after that, right?
11 A. 40 minutes. 11 A. No.
12 Q. And the only part you could hear were these two pages? 12 Q. So you don't know what they're talking about there?
13 A. Yes. 13 A. No.
14 Q. When you followed Mosciatello to the bar, he entered first? 14 Q. And the last thing where it says "taking jobs for cash,"
15 A. He entered. When I came inside, Mr. Olivieri was already 15 you see that?
16 inside. 16 A. Yes.
17 Q. And was Mr. Olivieri seated already? 17 Q. Then you go on and you don't hear the rest of that
18 A. Yes. 18 conversation, right?
19 Q. And so Mr -- and he was seated by himself? 19 A. Yes.
20 A. I believe when I walked in, he was with Mr. Moscatiello. 20 Q. So you don't know what Lou Mosciatello is referring to in
21 Q. And that seating position that was shown to us, that was 21 that, do you?
22 pretty much right in the middle of the bar right next to the 22 A. No.
23 bar area? 23 MR. GARDNER: If I could ask the government to just
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Page 391 Page 393
1 0ALZOLI4 Conlon - cross 1 0ALZOLI4 Conlon - redirect
put up the handwritten notes of the last page. many agents worked on the investigation, and I believe you said
2 Q. You see there it says "taking jobs for cash there?" 2 two. Could you clarify what you mean by that?
A. Yes. A. Well, there was two case agents. Different times we had
3 Q. And then it has a question mark. Would that be the more 3 other agents assisting us, and detectives also.
accurate, that this was stated by Lou Mosciatello as a question Q. Okay. So there are two FBI Agents from the Genovese squad?
4 about something rather than in your typewritten words, just 4 A. Yes.
5 written as a statement? 5 Q. Who are the lead agents on that investigation?
6 A. He may have. If it's in my notes, he would have said it 6 A. Yes.
7 more as a question. 7 Q. And then there are other agents or officers who assist?
8 Q. And you don't know what he's questioning about that, right? 8 A. Yes. We had agents, detectives assist us with surveillance
9 A. No. 9 and other types of things.
10 Q. Okay. Were you on this division from 1996 to 2003, were 10 MR. LANPHER: Nothing further, your Honor.
11 you the head of that group? 11 THE COURT: Thank you, you may step down.
12 A. At one time I was a case agent, then we worked together on 12 (Witness excused)
13 it. 13 MS. ZORNBERG: Your Honor, may we call our next
14 Q. How many agents in the group? 14 witness?
15 A. Two agents. 15 THE COURT: Yes.
16 Q. Just you and one other person? 16 MS. ZORNBERG: The government calls Salvatore Arrigo.
17 A. Usually yeah. Kind of change over time, but usually two of 17 SALVATORE ARRIGO,
18 us. 18 called as a witness by the government,
19 Q. Was that other agent present on this day when you first saw 19 having been duly sworn, testified as follows:
20 Lou Mosciatello outside the Brokerage House, and then you 20 THE COURT: Please be seated. Speak into the
21 followed him to the bar? 21 microphone as closely as possible. State your name and spell
22 A. No. It was just me. 22 it for the record.
23 Q. Just you. And this, the Brokerage House and the bar, is it 23 THE WITNESS: First name is Salvatore,
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Page 392 Page 394

1 0ALZOLI4 Conlon - cross 1 0ALZOLI4 Conlon - redirect
fair to say that that's in the area of the Bronx known as S-a-l-v-a-t-o-r-e, Arrigo, A-r-r-i-g-o.
2 Pelham Bay area? 2 THE COURT: Ms. Zornberg.
A. Yes. MS. ZORNBERG: Thank you, Judge.
3 Q. The other agent, it's just one agent, it's easier -- this 3 DIRECT EXAMINATION
other agent, did he ever indicate to you in any way that he had BY MS. ZORNBERG:
4 observed Lou Mosciatello and Joseph Olivieri ever meeting? 4 Q. Mr. Arrigo, are you currently a detective with the State of
5 MR. LANPHER: Objection, your Honor. 5 New York?
6 THE COURT: Sustained. 6 A. Yes, I am.
7 Q. Well, do you have any information from any source in any 7 Q. Prior to your current employment, who did you work for?
8 way that Lou Mosciatello and Joseph Olivieri met from 1996 to 8 A. New York City Police Department.
9 2003 while you were on this group? 9 Q. For how many years?
10 A. Do I recall them meeting? 10 A. 23 years.
11 Q. Yeah. 11 Q. Did you retire from the New York City Police Department?
12 A. No. 12 A. Yes, I did.
13 Q. Were you informed by your partner agent that they had met? 13 Q. What was your rank and grade when you retired?
14 MR. LANPHER: Objection, your Honor. 14 A. I retired as a detective first grade.
15 THE COURT: Sustained. 15 Q. Is that the highest level of detective in the NYPD?
16 MR. GARDNER: Okay, no further questions. Thank you 16 A. Yes, it is.
17 Judge. 17 Q. I'd like to direct your attention to the year of 2000.
18 MR. LANPHER: Your Honor, I just want to clarify one 18 Were you assigned to a particular unit or task force at that
19 point. 19 time?
20 THE COURT: Yes. 20 A. Yes, I was. I was assigned to the joint organized crime
21 REDIRECT EXAMINATION 21 task force C-5, Genovese squad.
22 BY MR. LANPHER: 22 Q. When you say that was a joint task force, what law
23 Q. You were asked a couple of questions just now about how 23 enforcement agencies participate in the task force?
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Page 395 Page 397
1 0alzoli4 Arrigo - direct 1 0alzoli4 Arrigo - direct
A. It was the New York City Police Department, along with A. Okay, thanks.
2 Special Agents of the FBI. 2 Q. Detective, do you recognize what's depicted in government
Q. Let me direct your attention more specifically to the day Exhibit 657?
3 of the April 13th, 2000. Where were you that afternoon? 3 A. This is an aerial shot of the neighborhood of Pelham Bay
A. I was part of a surveillance team for the monitoring of a Brokerage, that vicinity of.
4 bug at Pelham Bay Brokerage in the Bronx. 4 MS. ZORNBERG: The government offers Exhibit 657.
5 Q. You mentioned the term "bug." What's a bug? 5 MR. GARDNER: No objection, your Honor.
6 A. A bug is a listening device that's intercepted through a 6 THE COURT: Admitted without objections.
7 court order and unbeknownst to where it is, the secrecy and be 7 (Government's Exhibit 657 received in evidence)
8 able to pick up the conversation at a different location. 8 MS. ZORNBERG: All right. Let's, Ms. Geier, let's
9 Q. And where was the bug located at that time? 9 display to the jury, and let's try to -- is there a way to zoom
10 A. Inside Pelham Bay Brokerage. 10 in on the middle part?
11 Q. And just to be clear, was that a listening device that the 11 Q. If you could use your pointer, Detective. Could you orient
12 task force obtained with Court authority? 12 the jury and point out where on this photograph Pelham Bay
13 A. That is true. 13 Brokerage was located?
14 MR. GARDNER: Objection, your Honor. 14 A. Pelham Bay Brokerage would be right in that vicinity right
15 THE COURT: Sustained. 15 there.
16 Q. Were you part of a surveillance team that date? 16 MS. ZORNBERG: And let the record reflect that the
17 A. Yes, I was. 17 witness has pointed to a spot that's in the middle of the
18 Q. Besides yourself, who was part of the surveillance team? 18 photo.
19 A. Detective Andrew Varga, Detective Christine McAllister. 19 Q. And could you point out on this photo where the Bruckner
20 MS. ZORNBERG: Just one moment. Ms. Geier, let's 20 Expressway runs?
21 please put up government Exhibit 655 already in evidence. 21 A. This is going northbound, this is going southbound.
22 Q. Detective, do you recognize what's depicted in that 22 Q. Now, what types of surveillance was the team conducting on
23 photograph? 23 April 13th, 2000, besides monitoring a listening device inside
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Page 396 Page 398
A. That is the front of Pelham Bay Brokerage on Bruckner the Brokerage?
2 Boulevard in the Bronx. 2 A. Besides monitoring the bug from the plant location, at the
Q. Is that where the surveillance team was conducting plant location we also had high powered video camera which was
3 surveillance on April 13th, 2000? 3 recording the front of the Brokerage.
A. Correct. Q. Okay. And you mentioned something called a plant location.
4 MS. ZORNBERG: Let me also -- let's also put up 4 What's that?
5 government Exhibit 656. 5 A. A plant basically, in the terms that we used it --
6 Q. Do you recognize the individual what's depicted in this 6 MR. GARDNER: Judge, objection to this testimony.
7 photo? 7 THE COURT: Overruled.
8 A. Yes, I do. 8 A. A plant, basically, in the context that we use it is
9 Q. Who is that? 9 basically a covert location unbeknownst to the rest of the
10 A. That's Louis Mosciatello. 10 public that law enforcement is there and using that location
11 Q. Now for what reason was the joint task force conducting 11 for their purposes.
12 surveillance outside of the Pelham Bay Brokerage? 12 So in this particular incident we had an apartment in
13 MR. GARDNER: Objection, your Honor. 13 a building with other residents.
14 THE COURT: Overruled. 14 Q. And where, in relation to the Pelham Bay Brokerage, was the
15 A. This was the place of business for Louis Mosciatello. 15 plant location?
16 Q. On, approximately, how many occasions were you personally16 A. It was -- well, not on this shot. It was further south on
17 involved in conducting surveillance of Louis Mosciatello at 17 the Bruckner down going south.
18 this location? 18 Q. How did -- now you also mentioned that there was a camera.
19 A. Dozens. 19 What was the camera focused on?
20 Q. I'm handing you now what's been marked as government 20 A. The front of the Brokerage.
21 Exhibit 657. Let me also let you know that you have a pointer 21 Q. Can you describe how you and your team members worked
22 here, which I'm going to ask you to use, and it's just this 22 together to do the surveillance?
23 button, gray button. 23 A. In this particular case scenario that we were using to
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Page 399 Page 401
monitor this location and the bug, was there was three of us on the plates?
2 this particular day and, basically, we would rotate different 2 A. It would be standard to get the license plate of an
assignments on that day. individual that the main subject of an investigation was
3 Q. At around -- did you have ways of communicating with your 3 talking to.
surveillance team members? Q. For what reason?
4 A. Between the plant and whoever was conducting the physical 4 A. To document it, and so that we could actually find out who
5 surveillance out in the street, we basically communicated 5 that individual is.
6 either through radio or cell phones. 6 Q. Did the task force have a way to run plates?
7 Q. And at that time how, if at all, did the surveillance team 7 A. Yes, we did.
8 record things of interest that were being surveilled? 8 Q. How?
9 A. Someone from the plant would actually -- excuse me. 9 A. The CMP up at headquarters.
10 Someone at the plant would actually have the log for the day 10 MS. ZORNBERG: Let's put up government, page three of
11 and record whatever was pertinent on their log. 11 government Exhibit 654 and just let's just highlight the very
12 Q. Where were you at approximately 3:59 p.m. on that day? 12 bottom portion, Ms. Geier. Actually, could you enlarge it?
13 A. At 3:59 on this particular day I was somewhere out in the 13 Just -- I'm sorry, Ms. Geier, just the bottom portion. It's
14 street in the vicinity of Pelham Bay Brokerage. 14 getting closer.
15 Q. And who was keeping the logbook of surveillance? 15 Q. Can you read what the entry is at -- first of all it says
16 A. Detective Christine McAllister. 16 15:59; is that -- what time is that?
17 Q. Now, sitting here today, without the benefit of any 17 A. 3:59 p.m.
18 records, can you independently recall exactly what happened in 18 Q. The log was kept in military time?
19 the course of the surveillances on the afternoon of April 13th 19 A. Always, standard.
20 2000? 20 Q. Can you read that entry, please?
21 A. Without any records? 21 A. The first one or the second one?
22 Q. Yeah. 22 Q. You can -- the second one, one on --
23 A. Absolutely not. 23 A. Okay. That says 15:59, that is CM.
25 (212) 805-0300 25 (212) 805-0300
Page 400 Page 402
Q. I'm handing you what's been marked as government Exhibit Q. What does that stand for?
2 654. Do you recognize what that is? 2 A. Christine McAllister. It says LM out talking to unknown
A. Yes, I do. male. It's New York in parentheses, Thomas T90-5 boy x-ray,
3 Q. What is it? 3 blue, excuse me, blue Forde Explorer, in parentheses, Joe
A. This is the log that we used inside the plant on April 13th Olivieri.
4 of 2000. 4 Q. What was -- what did LM stand for?
5 MS. ZORNBERG: Your Honor, the government offers 5 A. Louie Mosciatello.
6 Exhibit 654. 6 Q. What does U/M stand for?
7 MR. GARDNER: We did have an objection, your Honor. 7 A. Unknown male.
8 THE COURT: All right noted. Accepted. 8 Q. And what is the significance of T905BY?
9 (Government's Exhibit 654 received in evidence) 9 A. That is the license plate that was on that Explorer.
10 Q. And before I turn to what's in the log, what was the 10 Q. And did the task force run the plates?
11 practice of the surveillance team if they saw Mr. Moscatiello 11 A. Yes.
12 leave Pelham Bay Brokerage? 12 Q. Who did they come back to?
13 A. Basically, they would call it out. Basically, it would be 13 A. The registered owner was Joseph Olivieri.
14 a radio call that the subject is leaving the location, and 14 MS. ZORNBERG: No further questions.
15 there would be some sort of indication to whoever was out in 15 THE COURT: Mr. Gardner?
16 the street that they should keep an eye to see where he was 16 MR. GARDNER: Yes, your Honor.
17 going. 17 CROSS EXAMINATION
18 Q. And what was the practice of the surveillance team if a 18 BY MR. GARDNER:
19 member of the team saw Mr. Moscatiello approach anyone in a 19 MR. GARDNER: Can you just leave that up?
20 car? 20 Q. Good afternoon, Detective.
21 A. Just like any other surveillance, it would be radio 21 A. How are you.
22 information to the rest of the field team. 22 Q. I'm okay, thanks.
23 Q. What, if anything, was the practice with respect to getting 23 See at the bottom, you just testified 15:59 Lou
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Page 403 Page 405
1 0ALZOLI4 Arrigo - cross 1 0aldoli5 Conlon - cross
Mosciatello out; right? Q. Did you see who was in that car, with that license plate,
2 A. Yes. 2 T90?
Q. Okay. And then 16:01, that would be two minutes later? A. No, I didn't. I saw a male. I didn't know who that
3 A. Yes. 3 individual was.
Q. And it says, Lou Mosciatello inside? Q. You had been outside this location dozens of times?
4 A. Inside. 4 A. Many times.
5 Q. Okay. It may seem silly thinking back, but I don't know if 5 Q. Had you ever seen that car outside the location previously?
6 there is a way that you wrote this meaning 16:01 means he's 6 A. I don't know -- on this particular surveillance, I don't
7 actually physically inside or is that he's on his way inside or 7 know. I couldn't tell you if I had it before or after.
8 it can mean either? 8 Q. OK. Well, other than this document, do you recall Joseph
9 A. I guest it depends on how you're looking at it. It could 9 Olivieri's name ever coming up?
10 be either walking in -- but, you know, the sidewalk is about, 10 A. You know what, I'm only basically seeing this one piece of
11 you know, maybe 10 feet wide so it's a matter of, you know, 11 document in regard to this case. So I don't know if he was
12 seconds. 12 ever there on different occasions besides this one. But on
13 Q. In either event, Lou Mosciatello outside talking to 13 this particular day, yes, that plate at that car, yes.
14 somebody in that car, is no more than two minutes? 14 Q. But as you sit here, you don't have any recollection that
15 A. Roughly, yes. Could be, you know, less than a minute and a15 he was ever there any other time?
16 half, whatever the timeframe is. 16 A. No.
17 Q. Okay. We have no way to know. All we know is the 17 Q. You are familiar with the area? This is in the Pelham Bay
18 maximum -- what I'm asking is all we know is, we know it's no 18 area of the Bronx?
19 more than two minutes from this, that's my only question. 19 A. Yes.
20 A. Well, it could be two and change. I guess it depends if 20 Q. There is Lou Moscatiello's shop, I guess, the real --
21 you have a second counter on -- 21 A. The brokerage place.
22 Q. Oh. 22 Q. The brokerage place. Thank you.
23 A. -- the video. 23 That is a commercial strip with other shops there,
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1 0ALZOLI4 Arrigo - cross 1 0aldoli5 Conlon - cross
Q. Okay. Other than possibly being a little bit over two, right?
2 it's no more than about two minutes, right? 2 A. There is a few other stores there, yes.
A. Yes. Q. And the cross street, when we had that graph up of the
3 (Continued on next page) 3 location, that was Wilkinson?
A. Wilkinson to Sands, right.
4 4 Q. To Sands.
5 5 Are you familiar with where Pilgrim is?
6 6 A. It is up on the side street over there. Behind it.
7 7 Q. Pilgrim is in the same area, just down a little bit?
8 8 A. Further yes.
9 9 Q. But in that same general area, right?
10 10 A. More or less, yes.
11 11 MR. GARDNER: No further questions, your Honor.
12 12 Thank you.
13 13 MS. ZORNBERG: Nothing, your Honor.
14 14 THE COURT: You may step down.
15 15 (Witness excused)
16 16 MR. LANPHER: Your Honor, the government calls Arthur
17 17 Johansen.
18 18 MR. GARDNER: Your Honor, I don't know if this is a
19 19 good time for a break. We did have an application regarding
20 20 Mr. Johansen, his testimony.
21 21 THE COURT: Do you want to have a sidebar on that?
22 22 MR. GARDNER: Thank you, your Honor.
23 23 (Continued on next page)
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(At the sidebar) very focused to these two individuals to explaining -- all of
2 MR. GARDNER: Judge, we received 3500 material for 2 this direct evidence explaining Mr. Olivieri's connection to --
Mr. Johansen that's a large stack of his involvement in all MR. GARDNER: The problem is counsel just gave the
3 kinds of bad stuff that he may have done in the past. 3 Court a proffer. He didn't connect the dots back to the
We made a motion previously. The Court ruled upon it. relationship between Moscatiello and Mr. Olivieri. I thought
4 And the Court restricted his testimony of organized crime 4 he may. I thought he was going to say and then he was directed
5 contact to show the relationship between Lou Moscatiello and 5 to pay my client, or something, but that is not part of it.
6 Joseph Olivieri. And then the Court concluded, "Thus, any 6 He's paying others.
7 testimony regarding organized crime ties that does not relate 7 Lou Moscatiello we are not disputing was a bad guy.
8 to this relationship is excluded." 8 And he -- this individual, his only tie-in is that he saw my
9 So I just -- I know he saw them having coffee, and, 9 client having coffee with Lou Moscatiello two or three
10 you know, there are some things that I wouldn't object to, but 10 occasions. And the Court took note of that and said, well,
11 if we are going into a large discourse about his background and 11 this is excluded except if it can show the relationship between
12 his organized crime ties, we are going to spend hours on what a 12 the two of them.
13 bad guy he is and it has nothing to do with that relationship. 13 So the fact that they had coffee a couple of times,
14 MR. LANPHER: I don't think that is the government's 14 God bless them. But the fact that he is paying Ragusa or he is
15 intent at all. This has been previously briefed. Mr. Johansen 15 paying these other guys and they want to mention my client in
16 is going to testify to a number of facts. One, that he saw 16 this same conversation, they are not connecting it to this
17 Mr. Moscatiello and Mr. Olivieri meeting together a number of 17 relationship. And this is what the Court addressed. And
18 times. But also to give context to that relationship, he is 18 unlike Mr. Moscatiello, where these conversations can come in,
19 going to testify, for example, that his company, Nastasi White, 19 because that's one of the issues in the deposition, the Court
20 was for many years paying money to the Genovese Crime Family. 20 is being very mindful that only to the extent necessary to
21 First to a man named Ralph Coppola, then to Louis Moscatiello, 21 describe the relationship between Olivieri and Moscatiello.
22 as well. Then Louis Moscatiello became involved in that as 22 All these other people are absolutely not relevant to that. We
23 well. 23 briefed this issue and the Court said no.
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Page 408 Page 410
Moscatiello directed Arthur Johansen to start paying MR. LANPHER: First of all, I don't think the Court
2 the money that had been going to Ralph Coppola to another 2 said no. The Court obviously knows the record better than I
individual, a man named Mickey Ragusa. do.
3 Now, Mr. Johansen understands and could testify to 3 In any event, these relationships -- this is how
Mr. Moscatiello's organized crime status. He is expected to somebody knows what a relationship is. It is not always direct
4 testify about conversations he had with Mr. Moscatiello about 4 conversations. It is context. And here the context is Arthur
5 Joseph Olivieri, and that he was aware Mr. Moscatiello referred 5 Johansen paying off Ralph Coppola, a capo in the Genovese Crime
6 to him as Rudy. 6 Family, and Ralph Coppola disappears. And we're not going to
7 He is also expected to testify about conversations he 7 get into that. But when he disappears, Louis Moscatiello, a
8 had with Ralph Coppola about Joseph Olivieri and conversations 8 more senior individual, comes in and says start paying the
9 he had with Joseph Olivieri about Ralph Coppola. 9 money to another guy, Mickey Ragusa.
10 Now, there are three individuals. They are very 10 Now, Mr. Johansen knows that Mr. Moscatiello knows
11 closely related. It all goes directly to explaining the 11 Ralph Coppola. He knows that Mr. Moscatiello knows Joseph
12 context by which Joseph Olivieri would be leaving with Louis 12 Olivieri, and they're connected through the organized crime.
13 Moscatiello Nastasi White, and based on this context we think 13 One way to know that is because at one time Ralph Coppola said
14 the jury can absolutely infer and should infer that these 14 to Arthur Johansen I want to have a meeting with Joseph
15 conversations had to do with their respective ties to organized 15 Olivieri. Arthur Johansen relayed that message. Joseph
16 crime. Again, it is more nuanced but it is absolutely directly 16 Olivieri's response was: Ralph Coppola is nothing. He has
17 relevant testimony. 17 been put on the shelf.
18 MS. ZORNBERG: And it is not long. 18 This is the first time in the history of organized
19 MR. LANPHER: It is not long. I don't think it will 19 crime that somebody of his stature has been put on the shelf.
20 take more than 30 minutes tops. And it is certainly not -- we 20 That conversation, your Honor, I think directly goes
21 have no intention of going into a lot of discourse of the 21 to an understanding of Joseph Olivieri's relationship with all
22 history of organized crime, his connection to Nastasi White or 22 these individuals, Lou Moscatiello included. And it certainly
23 the construction industry more generally. It is going to be 23 is evidence that can help one infer that when Joseph Olivieri
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Page 411 Page 413
is at a meeting at Nastasi White company, that the Genovese MR. LANPHER: Had a direct conversation with Joseph
2 Family is extorting with Louis Moscatiello, one of the 2 Olivieri about Ralph Coppola's organized crime status. Ralph
individuals extorting the company, one can draw an inference Coppola, who is connected --
3 that they're meeting not about how good the coffee is but that 3 THE COURT: A statement of the defendant, that could
they have chosen this location, which was not close to either come in, and then you can provide some background to that
4 one of their offices, for a purpose, and that is to talk about 4 conversation.
5 their respective ties to organized crime. 5 MR. GARDNER: Again, your Honor, he doesn't connect
6 I would think it is directly relevant. It is short. 6 the relationship with Lou Moscatiello, which is what we
7 It's not unduly prejudicial. And it goes to the heart of the 7 briefed. You can only get in that kind of wiseguy association
8 issues that are at stake the state. 8 if he had a relationship with Lou Moscatiello. Otherwise he is
9 THE COURT: Mr. Gardner. 9 trying to place before the Court that he has organized crime
10 MR. GARDNER: He just told you that he is going to ask 10 ties that have nothing to do with the perjury charge. That is
11 the jury to draw an inference about the fact that they had 11 not what we are here to do.
12 coffee together with my client Lou Moscatiello to all of this 12 If you want to try organized crime and say he is an
13 other bad stuff going on. And that is exactly what he is 13 organized crime figure and therefore convict him, I get it; but
14 paying -- Ragusa is paying these other people. There is no 14 you have to tie in Lou Moscatiello's relationship. You are not
15 tie-in with my client. 15 doing it. He never heard a conversation from Lou Moscatiello.
16 This is exactly what we briefed. Your Honor, this is 16 He was never directed to talk to Lou Moscatiello. My client
17 the paragraph. This is your ruling. It is exactly what you 17 was never directed by him to talk to Lou Moscatiello. I could
18 were referring to. You said, no, this general organized crime 18 see a connection there. He never even overheard a
19 stuff cannot come in. And now the relationship is that they 19 conversation.
20 had coffee together? 20 MR. LANPHER: We think it does go when given the
21 This is purely background of him being involved with 21 relationship between Moscatiello and Ralph Coppola, the
22 organized crime for many, many years, and then they try to 22 relationship that both of them had with Nastasi White. There
23 taint it. It is a huge stretch, but it is such a huge stretch 23 are other connections. For example, Louis Moscatiello was very
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Page 412 Page 414
that my client shouldn't have to suffer the possibility that he close to the former owner of Nastasi White, Tom Nastasi; they
2 is prejudiced. There is a reason they want to put in all of 2 were extremely close. That's how Arthur Johansen first met
this organized crime stuff. It is not an accident. It really Mr. Louis Moscatiello. It was Thomas Nastasi who appointed
3 does taint juries in case after case after case about that. 3 Joseph Olivieri to the Wall-Ceiling Association as executive
THE COURT: Does the witness have any direct knowledge director. It was a close-knit circle. Ralph Coppola is right
4 or any direct experience having heard the conversations between4 in that circle. Joseph Olivieri is right in that circle, and
5 Mr. Moscatiello and Mr. Olivieri? 5 Moscatiello was right in that circle.
6 MR. LANPHER: He had seen them on several occasions 6 Now, you have to explain the relationship, in our
7 having coffee in the coffee shop at his building, at Nastasi 7 view, as to all to explain the relationship between Joseph
8 White, which is nowhere close to where either of them work. 8 Olivieri and Louis Moscatiello. Arthur Johansen has personal
9 And, if asked, he will testify when I saw them there, he 9 knowledge of this. I think it is absolutely admissible, and as
10 thought, oh, great, this is just what I need, more mobsters 10 the Court said, it's an admission of the defendant.
11 taking -- you know, coming to my place of business. Of all the 11 MR. GARDNER: That's what we briefed --
12 coffee shops in the world, why did they have to choose mine? 12 THE COURT: We will have to do it very carefully.
13 I am not going to ask him those questions. 13 MR. GARDNER: Judge, this is all kind of things. It
14 MR. GARDNER: The answer to the question is no. 14 is all about the connection. Ten years ago they had coffee
15 MR. LANPHER: Mr. Gardner, I am not going to ask him 15 once or twice in the shop having coffee. That is what they are
16 those questions. But the reason he knows that is through the 16 giving the background to.
17 experiences that we've already proffered, including the 17 THE COURT: It is more than that, but let's deal with
18 conversation, for example, that he had with Joseph Olivieri 18 it very, very carefully, one question at a time.
19 about Ralph Coppola being put on the shelf. 19 MR. LANPHER: Again, so the Court understands, one of
20 THE COURT: Again, he had that conversation with 20 the questions I am going to ask to prompt that Ralph Coppola
21 Mr. Olivieri? 21 conversation, just so there is no surprise, he says did you
22 MR. LANPHER: Yes. Mr. Johansen. 22 ever speak with Ralph Coppola about Joseph Olivieri. I expect
23 THE COURT: That is a direct conversation? 23 him to say yes. Do any of these conversations stand out? I
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Page 415 Page 417
expect him to say yes. And then I expect him to testify about (In open court)
2 the interchange that he had with Ralph Coppola and Joseph 2 Arthur Johansen,
Olivieri where Joseph Olivieri said Ralph Coppola's nothing, called as a witness by the government,
3 he's been put on the shelf, the first time in organized crime 3 having been duly sworn, testified as follows:
history. THE COURT: You may be seated.
4 We think that is entirely admissible. I just want the 4 Speak into the microphone as closely as possible.
5 Court to -- so we don't end up back here, that's part of the 5 State your name and spell it for the record.
6 testimony we intend to offer. 6 THE WITNESS: Arthur Johansen, J-O-H-A-N-S-E-N.
7 MR. GARDNER: And that's great if you are trying to 7 THE COURT: Mr. Lanpher.
8 paint him as an organized crime figure. That doesn't relate to 8 MR. LANPHER: Thank you, Judge.
9 his relationship with Lou Moscatiello one iota. 9 DIRECT EXAMINATION
10 If he is just trying to say Mr. Olivieri is a bad guy, 10 BY MR. LANPHER:
11 he has organized crime ties, please convict him, that's a great 11 Q. Good afternoon, Mr. Johansen.
12 thing to make them aware of. But what you are failing to do is 12 A. Good afternoon.
13 connect it to show that he has a relationship with Moscatiello. 13 Q. How old are you?
14 You are not doing that. 14 A. 53.
15 MR. LANPHER: I think we have already explained. We 15 Q. Are you married?
16 are going in circles at this point, but I think we've explained 16 A. Yes.
17 how this is necessary to explain what Joseph Olivieri and Lou 17 Q. Do you have any kids?
18 Moscatiello were likely meeting about. It is a hundred 18 A. Yes. Four.
19 percent. Is it absolute proof of what they were meeting about? 19 Q. How old are they?
20 No. Is it very strong evidence that they were meeting about 20 MR. GARDNER: Objection, your Honor.
21 organized crime business? Absolutely. And that is the heart 21 THE COURT: Sustained.
22 of why this testimony is material. I don't think it is 22 Q. Could you describe your educational background for the
23 particularly close. 23 jury?
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1 0aldoli5 1 0aldoli5 Johansen - direct
And, again, we have pared down this witness' A. High school graduate, and I attended night courses at
2 testimony. He is not expected to testify about other monsters. 2 Mechanics Institute in New York University for construction
He is not expected to give a long diatribe -- management.
3 THE COURT: I am going to permit the testimony 3 Q. What do you do for a living?
selectively. We will just have to deal with it one question at A. I am a project manager.
4 a time. But bear in mind that there has to be a connection in 4 Q. Do you work for any particular company?
5 some way from which a reasonable jury could draw a reasonable 5 A. Yes.
6 inference that there is a connection. 6 Q. What company?
7 MS. ZORNBERG: Sure. 7 A. The Liro Group, L-I-R-O.
8 THE COURT: But at the end of the testimony if that 8 Q. And when you say you are a project manager, what does that
9 connection is not there, then I will revisit the issue. 9 mean?
10 MR. LANPHER: Thanks, Judge. 10 A. You are the person in charge of running a particular
11 (Continued on next page) 11 project.
12 12 Q. What kind of projects do you do?
13 13 A. Construction.
14 14 Q. How long have you been doing that?
15 15 A. For the Liro Group?
16 16 Q. Yes.
17 17 A. Five-and-a-half years.
18 18 Q. Have you ever been a member of a union?
19 19 A. Yes.
20 20 Q. What union?
21 21 A. Carpenters' Union.
22 22 Q. What local?
23 23 A. 608.
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Page 419 Page 421
1 0aldoli5 Johansen - direct 1 0aldoli5 Johansen - direct
Q. Did there come a time when you became involved in a company Q. When you started with Nastasi White, what was your
2 called Nastasi White? 2 position?
A. Yes. A. I was a carpenter apprentice.
3 Q. When did you first become involved with Nastasi White? 3 Q. What does that mean?
A. I believe, 1980. A. That's somebody who is completely new to the business, who
4 Q. You said 1980? 4 starts from the bottom up.
5 A. 1980. 5 Q. So working as a carpenter?
6 Q. Is Nastasi White still in business? 6 A. I was working as a carpenter's helper, learning the trade.
7 A. No. 7 Q. At some point did you move into an office position at
8 Q. When did it close? 8 Nastasi White?
9 A. Approximately 2002 or 2003. 9 A. Yes.
10 Q. What kind of a company was Nastasi White? 10 Q. When was that?
11 A. It was a very large carpentry contractor. 11 A. Approximately 1985.
12 Q. Was it a union company? 12 Q. At some point did you take on a leadership position in the
13 A. Yes. 13 company?
14 Q. Did it sign a collective bargaining agreement with the 14 A. Yes.
15 Carpenters' Union? 15 Q. Could you explain the circumstances of when you took a
16 A. Yes. 16 leadership position?
17 Q. Was it affiliated with any contractor associations? 17 A. I became a -- I was a carpenter apprentice, then a
18 A. Yes. 18 carpenter four-year duration. I came into the office, became a
19 Q. What associations? 19 purchasing agent. I was the person in charge of all the buying
20 A. The Wall & Ceiling Association. 20 of all the materials for all the projects. I then became a
21 Q. Now, you said that Nastasi White was a very large company. 21 superintendent, which is back into the field, going to all the
22 Could you explain that? 22 different job sites and monitoring the production, the men, and
23 A. We were one of the larger drywall companies in the 23 the quality and progress of the job. And then I became a
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Page 420 Page 422
northeast United States. general superintendent. Then a vice president. Then an
2 Q. How big? 2 executive vice president.
A. At its peak, we probably did $130 million a year in Q. At some point did you essentially take over the company?
3 carpentry. 3 A. Yes.
Q. How many employees? Q. That is running the day-to-day operations?
4 A. 1600 at its peak. 4 A. Yes.
5 Q. Where was Nastasi White headquartered? 5 Q. When was that?
6 A. Roslyn, New York, and then College Point, Flushing, Queens. 6 A. Approximately 1993. My father-in-law was diagnosed with
7 Q. How did you first come to be involved in Nastasi White? 7 pancreatic cancer.
8 A. I worked at a country club where my wife's family was a 8 Q. Did he eventually pass away?
9 member. 9 A. Yes, he did.
10 Q. And what about that led you to Nastasi White? 10 Q. When was that?
11 A. I met my future wife. We started dating. We were engaged 11 A. October 5th of 1995.
12 to be married five years later. 12 Q. When did you stop being involved in Nastasi White?
13 Q. But what about that -- was her family involved in the 13 A. I believe like 2003.
14 company? 14 Q. Was that when it closed?
15 A. I'm sorry. Yes. Her father was one of the owners. 15 A. That's correct.
16 Q. Who was your father -- father-in-law? Excuse me. 16 Q. What caused it to close?
17 A. Thomas Nastasi, Jr. 17 A. We had a tremendous amount of work, receivables, work done
18 Q. Was he the owner of Nastasi White? 18 in place that was in litigation with clients and owners that
19 A. Yes, co-owner. 19 weren't paying -- weren't paying their receivables -- our
20 Q. Now, what kind of involvement, if any, did your 20 receivables.
21 father-in-law have in the Wall & Ceiling Association? 21 Q. While you were with Nastasi White, did you serve at any
22 A. He was a board member and I believe chairman of the board22 point on the board of the Benefit Funds for the District
23 and past president. 23 Council of Carpenters?
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Page 423 Page 425
A. Yes, I was a trustees. Ms. Geier, could you zoom out. And turn to page 2.
2 Q. When were you first appointed to the position? 2 And zoom in on Roman Numeral 3.
A. I believe late 1995. It says: "Appointment of Management Trustee:
3 Q. How did you get that position? 3 "Joseph Olivieri was appointed a trustee to replace
A. I was a member of the Wall & Ceiling Association. My Arthur Johansen on behalf of the Metropolitan New York Drywall
4 father-in-law, who was a trustees, was again diagnosed with a 4 Contractors Association."
5 terminal illness. The board of the association and the 5 Q. Is that a reference to the Wall & Ceiling Association?
6 membership, I guess, recognized that we were the -- meaning 6 A. That was our seat on the board, correct.
7 Nastasi White was the single largest carpentry contractor in 7 Q. And this was from 2000. Does that sound about right to
8 the metropolitan area and felt it was just that I had the voice 8 you?
9 representing the association. 9 A. It said 2000. I thought it was a little bit later, but,
10 MR. LANPHER: May I have a moment, your Honor? 10 yes, it is probably accurate.
11 (Pause) 11 Q. Prior to when Mr. Olivieri replaced you on the board of the
12 Q. Mr. Johansen, could you describe in general terms what your12 District Council, did you know him?
13 role was as trustee for the Benefit Funds? 13 A. Yes.
14 A. Yeah. We were a management trustee. We basically -- the 14 Q. How had you come to know him?
15 basic functions of a management trustee was to monitor and 15 A. Through the Association.
16 oversee the service providers who manage the money for the 16 Q. Could you explain the circumstances of when you first
17 Funds, making sure that everything was on the up and up. We 17 learned of who he was?
18 had an attorney, retained an attorney to represent us, and that 18 A. He came to our office in College Point for what I believe
19 was most of it. 19 to be was an interview with my father-in-law. He was
20 Q. Were you a fiduciary? 20 interviewed. Left. And I went in to see my father-in-law and
21 A. Yes. 21 I had asked him who it was. And he said that's the gentleman
22 Q. Were you paid as a member of the board? 22 who is going to replace Mike Crimi, who was the executive
23 A. No, sir. 23 director at the time, who was going to retire.
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Q. Did there come a time when you resigned your seat as Q. To be clear, your father-in-law is Thomas Nastasi?
2 trustee of the Benefit Funds? 2 A. Thomas Nastasi, Jr., correct.
A. Yes. Q. And when you say Mr. Olivieri was going to be replacing
3 Q. When was that? 3 Michael Crimi, that is as executive director for the Wall &
A. I believe it was 19 -- I'm sorry, 2002/2003. Ceiling Association?
4 Q. Why did you resign? 4 A. Yes.
5 A. Due to the amount of receivables that were owed to Nastasi 5 Q. Mr. Jones, I'm showing you what's been marked as Government
6 White, we became delinquent to the Benefit Funds. 6 Exhibit 401. Do you recognize what that is?
7 Q. And what about that -- first of all, when you say you 7 A. Yes.
8 became delinquent to the Benefit Funds, what does that mean? 8 Q. What is it?
9 A. We did not have the cash flow to pay our benefits, so we 9 A. It's the minutes, the meeting minutes for the board of the
10 fell behind. 10 Wall & Ceiling.
11 Q. And what about that fact made you decide to resign as 11 Q. For what date?
12 trustee? 12 A. February 8, 1995.
13 A. I thought it was a definite conflict of interest to be a 13 MR. LANPHER: Your Honor, the government offers
14 seated trustee and be in violation of the Collective Bargaining 14 Government Exhibit 401 in evidence.
15 Agreement. 15 MR. GARDNER: No objection, your Honor.
16 Q. Who replaced you on the board? 16 THE COURT: Admitted without objection.
17 A. Mr. Olivieri. 17 (Government's Exhibit 401 received in evidence)
18 MR. LANPHER: Ms. Geier, could we put up Government 18 MR. LANPHER: Ms. Geier, could we put up Government
19 Exhibit 300, in evidence? 19 Exhibit 401. And just zoom in on the top.
20 Could you just zoom in on the top, that very top. 20 Now, let's turn to page 3 of that document. And zoom
21 These are minutes of the meeting of the Board of 21 in on where it says "New Business" at the bottom of the page.
22 Trustees of the New York City District Council of Carpenters 22 It says: "Board member Tom Nastasi reported on the
23 Pension Fund held on April 10, 2000. 23 proposed retirement of the executive director Michael Crimi
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Page 427 Page 429
sometime in April 1995 and in anticipation of his retirement, A. On occasion.
2 has been searching for a replacement." 2 Q. When is the last time you spoke with him?
Q. That's the individual -- first of all, Tom Nastasi, that is A. Probably at least three-and-a-half, four years ago.
3 your father-in-law, is that correct? 3 Q. I want to shift gears now.
A. It was Thomas Nastasi, Jr., but that is who it was While you were head of Nastasi White, was Nastasi
4 referring to. 4 White making payments to anyone associated with organized
5 MR. LANPHER: Then in the next paragraph, it says: 5 crime?
6 "Mr. Nastasi then submitted the rsum of Joseph Olivieri. And 6 A. Yes.
7 it was Mr. Nastasi's suggestion that inasmuch as our executive 7 Q. To what organized crime family?
8 director will continue in office until April, that Mr. Olivieri 8 A. Genovese.
9 be retained as an employee at will to work with Mr. Crimi to 9 Q. How did you first learn about the relationship between
10 become familiar with the workings of the executive director. 10 Nastasi White and the Genovese Family?
11 It was suggested that Mr. Olivieri receive a $75,000 per annum 11 A. My father-in-law, Thomas Nastasi, Jr.
12 salary together with the customary perks." 12 Q. Could you describe the circumstances of how you learned?
13 Q. Now, was Mr. Olivieri hired after that? 13 MR. GARDNER: Objection, your Honor.
14 A. I believe so, yes. 14 THE COURT: Sustained.
15 Q. Did that remain his salary with the Wall & Ceiling 15 Q. You said you first learned about it from your
16 Association over the years? 16 father-in-law, is that correct?
17 A. No. 17 A. Yes.
18 Q. What happened? 18 Q. Approximately what year did you first learn about the
19 MR. GARDNER: Objection, your Honor. 19 relationship?
20 THE COURT: Sustained. 20 A. 19 -- late '80s, I would say.
21 MR. LANPHER: Now, at the bottom, it says: "Upon the 21 Q. What did Mr. Nastasi tell you?
22 vote, four were in favor of the motion: Tom Nastasi, Louis 22 MR. GARDNER: Objection, your Honor.
23 Moscatiello, James Delio, and Tom Colasanto." 23 THE COURT: Sustained.
25 (212) 805-0300 25 (212) 805-0300
Page 428 Page 430
Q. Do you know whether that -- where it says Louis Q. Did you have a specific conversation with Mr. Nastasi about
2 Moscatiello, is that a reference to Louis Moscatiello, Sr. or 2 it?
Jr.? A. Yes.
3 A. Jr. 3 Q. After that, did you -- what did you do?
Q. What makes you say that? MR. GARDNER: Objection, your Honor.
4 A. Louis Moscatiello, Jr. was a board member. 4 THE COURT: Overruled.
5 Q. And this is the board of the Wall & Ceiling Association? 5 A. I don't understand the question.
6 A. That's correct. 6 Q. Well, after Mr. Nastasi told you about the relationship
7 MR. LANPHER: We can take that down, Ms. Geier. 7 between Nastasi White and the Genovese Crime Family, did you
8 Q. Now, after he was appointed executive director of the Wall 8 take on any role in that?
9 & Ceiling Association, did you get to know Mr. Olivieri? 9 A. Sorry. Yes, I questioned why it was necessary.
10 A. Yes. 10 Q. And what was the response?
11 Q. Generally speaking, how did you get to know him? 11 MR. GARDNER: Objection, your Honor.
12 A. I was -- I later became the president. We went on 12 THE COURT: Sustained.
13 conventions together. We had monthly meetings that we 13 Q. Well, after that, did you begin making payments to the
14 attended. 14 Genovese Family?
15 Q. When you say you became the president, the president of 15 MR. GARDNER: Objection, your Honor.
16 what? 16 THE COURT: Overruled.
17 A. Of the Association, our association. 17 A. Yes.
18 Q. How does the president's position compare with the 18 Q. To whom did you begin making payments?
19 executive director's position? 19 A. Ralph Coppola.
20 A. The executive director is the day-to-day operations 20 Q. What was your understanding of the purpose of these
21 individual, and the president is the head of the board and the 21 payments?
22 organization. 22 A. The purpose of the payments, as was told to me, was if we
23 Q. Did you socialize with Mr. Olivieri? 23 have a problem on the street with anybody or anything related
25 (212) 805-0300 25 (212) 805-0300

Page 431 Page 433
to a job site, we're with Ralph. Go see Ralph if I'm not A. A little over three years, yes.
2 around. 2 Q. After you stopped making payments to Ralph Coppola, what
MR. GARDNER: I object to that and ask that it be happened?
3 stricken. 3 A. I had a meeting with Lou Moscatiello.
THE COURT: Sustained. Q. And what did Louis Moscatiello say to you?
4 Q. Mr. Johansen, I'm showing you what's been marked as 4 A. Lou told --
5 Government Exhibit 63. Do you recognize that? 5 MR. GARDNER: Objection, your Honor.
6 A. Yes. 6 THE COURT: Which Lou Moscatiello are we talking
7 Q. What is it? 7 about?
8 A. It's a picture of Ralph Coppola. 8 MR. LANPHER: Senior.
9 MR. LANPHER: Your Honor, the government offers 9 MR. GARDNER: I do have an objection, your Honor.
10 Government Exhibit 63 in evidence. 10 THE COURT: Sustained.
11 MR. GARDNER: I have an objection to any questions 11 BY MR. LANPHER:
12 about Ralph Coppola, your Honor, but other than that, the 12 Q. You said that you met with Louis Moscatiello, Sr., correct?
13 picture I don't object to. 13 A. Yes.
14 THE COURT: Admitted without objection. 14 MR. LANPHER: And, Ms. Geier, please put up Government
15 (Government's Exhibit 63 received in evidence) 15 Exhibit 50, in evidence.
16 MR. LANPHER: Could we put that up on the screen, 16 Q. Is that the man you are talking about?
17 Ms. Geier. 17 A. Yes.
18 Q. You testified that you began making payments to Ralph 18 Q. Now, Mr. Moscatiello met with you after you stopped paying
19 Coppola? 19 Ralph Coppola, is that correct?
20 A. Yes. 20 A. That's correct.
21 Q. For how long did you continue making payments? 21 Q. What did he say to you?
22 A. A little over three years. 22 MR. GARDNER: Objection, your Honor.
23 Q. How much did you pay? 23 THE COURT: Sustained.
25 (212) 805-0300 25 (212) 805-0300
Page 432 Page 434
A. $3,000 a month. Q. After that, did you start doing something else with regard
2 Q. How were you paying? 2 to payments for the Genovese Family?
A. In cash. MR. GARDNER: Objection, your Honor.
3 Q. Stepping back, who first introduced you to Ralph Coppola? 3 THE COURT: Rephrase the question.
A. Lou Moscatiello, Sr. Q. After you stopped making payments to Ralph Coppola, did you
4 Q. Now, how had you first gotten to know Louis Moscatiello, 4 continue making payments to the Genovese Family?
5 Sr.? 5 MR. GARDNER: Objection.
6 A. He is a very dear friend of my father-in-law. 6 THE COURT: Overruled.
7 Q. That's Thomas Nastasi, Jr.? 7 A. Yes.
8 A. Yes. 8 Q. To whom did you begin making payments?
9 Q. When do you think you first got to know Mr. Moscatiello, 9 A. Well, Mickey Ragusa.
10 Sr.? 10 Q. Why did you begin making payments to Mickey Ragusa?
11 THE COURT: That's Senior? 11 A. I was told to do so by Mr. Moscatiello.
12 MR. LANPHER: Yes. 12 MR. GARDNER: Objection. I ask that it be stricken.
13 THE COURT: Are we talking about Senior or Junior? 13 THE COURT: Sustained.
14 MR. LANPHER: Let me restate the question. 14 Q. Now, what did you understand about Mr. Moscatiello's
15 Q. You said that Louis Moscatiello, Sr. was very close with 15 business? What business was he in?
16 your father-in-law, correct? 16 A. He was the business manager of Local 530, which is the
17 A. Yes. 17 plasterer union.
18 Q. And that's how you had gotten to know him? 18 Q. Did you have any understanding as to his role in the
19 A. He was a guest at my wedding. 19 Genovese Family?
20 Q. When was that? 20 A. He was an associate in the Genovese Crime Family.
21 A. 1981. 21 Q. Now, I want to turn back to Joseph Olivieri for a minute.
22 Q. You said that you made payments to Ralph Coppola for 22 Did Mr. Moscatiello and Mr. Olivieri know each other?
23 approximately three years? 23 A. Yes.
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Page 435 Page 437
Q. Did you ever see them meeting? Q. Now, it says -- on the left, it looks like it says
2 A. Yes. 2 Pusateri's Restaurant, Gourmet Deli. Is that what it has
Q. How often? always been?
3 A. A couple of times. 3 A. No.
Q. Where did you see them meeting? Q. So when did you see Mr. Moscatiello and Mr. Olivieri
4 A. In my office building in College Point. 4 meeting? Can you put an approximate year on it?
5 Q. And that's a reference to Nastasi White's office building? 5 A. Somewhere between 1998 and 2000, maybe.
6 A. Yes. 6 Q. And at that time was it an Italian deli or was it a coffee
7 MR. LANPHER: If I may have a moment, your Honor? 7 shop?
8 (Pause) 8 A. It was Mykonos Coffee Shop.
9 Q. Mr. Johansen, I'm showing you what has been marked as 9 Q. And you said that you can see here one of the doors to the
10 Government's Exhibits 550, 551, 553, 556 and 557. 10 coffee shop. Would you point that out using the laser pointer?
11 Could you take a look at these? 11 A. Right there (indicating).
12 (Pause) 12 Q. What kind of door is that?
13 Do you recognize what those are? 13 A. That's a glass door, glass-and-aluminum frame door.
14 A. The first -- yes, it is a picture of my office building. 14 Q. And to the right there is the front door of Nastasi White?
15 Q. And what are the other pictures of? Are they pictures of 15 A. Yes.
16 particular parts of that building? 16 Q. Is that how you would enter the building?
17 A. Yes. We had a coffee shop on the ground floor. 17 A. Yes.
18 MR. LANPHER: Your Honor, the government offers 18 MR. LANPHER: Could we put up Government Exhibit 553.
19 Government Exhibits 550, 551, 553, 555, 556 and 557 in 19 Q. Was that a view of?
20 evidence. 20 A. Just a direct view of the same door, entrance to the coffee
21 MR. GARDNER: No objection, your Honor. 21 shop and --
22 THE COURT: Admitted without objection. 22 THE COURT: Mr. Lanpher, I'm going to cut this
23 (Government's Exhibits 550, 551, 553, 555, 556 and 557 23 discussion short. I don't see any material relevance of the
25 (212) 805-0300 25 (212) 805-0300
Page 436 Page 438
received in evidence) architecture of this building to what is at issue here.
2 MR. LANPHER: Ms. Geier, could we put up Government 2 BY MR. LANPHER:
Exhibit 550. Q. How were you able to see Mr. -- you said that
3 Q. And what is that? 3 Mr. Moscatiello and Mr. Olivieri were inside the coffee shop?
A. That's our office building. A. Yes.
4 Q. Nastasi White? 4 Q. How were you able to see them?
5 A. Yes. 5 A. Through the doors -- the main entry doors. There was a
6 Q. Where is the front door on that photo? 6 glass door and glass side lights that looked directly into the
7 And if you will bear with me, I'm going to hand you a 7 coffee shop.
8 laser pointer I will ask you to use. You just have to hold 8 MR. LANPHER: Could we just put up Government Exhibit
9 down that button. 9 557, then, in evidence?
10 A. OK. Right about there (indicating). 10 Q. And that is an interior view?
11 Q. That is the front door of Nastasi White? 11 A. Yes, that's an interior looking out.
12 A. Yes. 12 Q. And to the left there, is that one of the glass doors that
13 Q. Where did you see Mr. Olivieri and Mr. Moscatiello when you13 you referred to?
14 saw them meeting at your office building? 14 A. That is the glass door, yes.
15 A. In the coffee shop at a table. 15 Q. So you said that you saw Mr. Olivieri and Mr. Moscatiello
16 Q. Could you point out where the coffee shop is on this 16 sitting in the coffee shop. How many times do you think you
17 picture? 17 saw them there?
18 A. This corner, on the ground floor (indicating). 18 A. Two. Possibly three.
19 MR. LANPHER: Now, Ms. Geier, could you put up 19 Q. When you saw them there, did you join them?
20 Government Exhibit 551. 20 A. No.
21 Q. What is that a picture of? 21 Q. Why not?
22 A. One of the entrances to the coffee shop and the main 22 MR. GARDNER: Objection, your Honor.
23 entrance to the building. 23 THE COURT: Sustained.
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Page 439 Page 441
Q. On those days when you saw them there, did either him. I told him yes. And he said, What did he say? I said,
2 Mr. Moscatiello or Mr. Olivieri come up into Nastasi White's 2 He was going to get back to me. There was no answer given at
offices? that point in time.
3 MR. GARDNER: Objection. 3 Q. And what happened next?
THE COURT: Overruled. A. I believe I beeped Mr. Olivieri again. We spoke. He came
4 A. No. 4 to my office. We spoke. And he said he wasn't going to attend
5 Q. Did either of them come to speak with you on those days? 5 the meeting.
6 A. No. 6 Q. Did he explain why?
7 Q. Where was Nastasi White located in relation to 7 A. He said he wasn't going to attend the meeting.
8 Mr. Moscatiello's offices? 8 Q. Did he say anything about Mr. Coppola?
9 A. Seven or eight miles away. 9 MR. GARDNER: Objection.
10 Q. And where was Nastasi White located in relation to Joseph 10 THE COURT: Overruled.
11 Olivieri's offices? 11 A. Yes.
12 A. About 20 miles away. 12 Q. What did he say?
13 Q. Did you know at the time why they were meeting in the 13 A. He said he was on the shelf. He's a nobody. And he's not
14 coffee shop of Nastasi White? 14 going to the meeting.
15 A. No. 15 Q. What did you understand by that term, "on the shelf"?
16 Q. Did you ever speak with Louis Moscatiello about Joseph 16 MR. GARDNER: Objection, your Honor.
17 Olivieri? 17 THE COURT: Sustained.
18 A. Yes. 18 Q. Did Mr. Olivieri say anything else?
19 Q. How did Mr. Moscatiello refer to Joseph Olivieri? 19 A. No.
20 MR. GARDNER: Objection, your Honor. 20 Q. What happened after that?
21 THE COURT: Overruled. 21 A. I spoke with Mr. Coppola and told him of the conversation.
22 A. Rudy. 22 He seemed --
23 Q. Have you ever heard other people refer to Mr. Olivieri by 23 Q. How did Mr. Coppola respond?
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Page 440 Page 442
that nickname? MR. GARDNER: Objection, your Honor.
2 A. Yes. 2 THE COURT: Sustained.
Q. Who? MR. LANPHER: May I have a moment?
3 A. Ralph Coppola and Tom Nastasi, Jr. 3 THE COURT: Yes.
Q. How often did you speak with Ralph Coppola about (Pause)
4 Mr. Olivieri? 4 Q. At some point did you start speaking with the FBI about
5 A. A few times. 5 your experiences with Nastasi White?
6 Q. Does any particular incident stand out in your mind? 6 A. Yes.
7 MR. GARDNER: Objection, your Honor. 7 Q. Did you seek out the FBI or did the FBI come to you?
8 THE COURT: Overruled. 8 A. The FBI came to me.
9 A. Yes. 9 Q. When was that?
10 Q. Could you describe what happened? 10 A. Approximately 2003, summer; late summer 2003.
11 MR. GARDNER: Objection, your Honor. 11 Q. At the time did you believe that you were under any sort of
12 THE COURT: Overruled. 12 investigation?
13 A. Ralph Coppola wanted me to get in touch with Mr. Olivieri 13 A. No.
14 to set up a meeting. 14 Q. Since that time had you provided information to the FBI?
15 Q. And what did you do? 15 A. Yes.
16 A. I beeped Mr. Olivieri. He returned the beep. I told him I 16 Q. Have you ever been paid any money for providing information
17 had to see him, and he came to my office. 17 to the FBI?
18 Q. When he came to your office, what happened? 18 A. Absolutely not.
19 A. We spoke. I talked Mr. Olivieri, told him that Ralph 19 Q. Have you ever been promised anything in return for
20 wanted to see him, and -- he wanted to make an appointment to 20 providing information to the FBI?
21 see him. And Mr. Olivieri left. 21 A. Definitely not.
22 Q. What did you do then? 22 MR. LANPHER: No further questions, your Honor.
23 A. Mr. Coppola called me and asked me if I got in touch with 23 CROSS-EXAMINATION
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Page 443 Page 445
1 0aldoli5 Johansen - cross 1 0aldoli5 Johansen - cross
BY MR. GARDNER: (Witness excused)
2 Q. Mr. Johansen, my name is Brian Gardner. I represent 2 THE COURT: We are going to take a ten-minute
Mr. Olivieri. I just have a few questions. afternoon break at this point.
3 You stated that your father-in-law was a dear friend 3 (Recess)
with Lou Moscatiello? (Continued on next page)
5 Q. And when -- I'm sorry, I didn't get the date maybe. When 5
6 you got married and Lou Moscatiello attended your marriage, 6
7 your wedding? 7
8 A. I believe so, yes. 8
9 Q. What year was that? 9
10 A. 1981, March 21. 10
11 Q. Did you know that Lou Moscatiello was a close friend of 11
12 your father-in-law prior to the wedding? 12
13 A. Yes, I believe I did. 13
14 Q. And then after the wedding, did you have an occasion to be 14
15 in Lou Moscatiello's presence on a large number of occasions 15
16 because of the relationship with your father-in-law? 16
17 A. Yes. 17
18 Q. And you also separately knew Mr. Olivieri from the Wall & 18
19 Ceiling Association, right? 19
21 Q. And in all of that time, since 1981, or even before, I'll 21
22 go back forever, the only time you ever saw Lou Moscatiello and22
23 Mr. Olivieri having coffee, having a piece of cake, whatever 23
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Page 444 Page 446
1 0aldoli5 Johansen - cross 1 0ALZOLI6
they were doing, were on two occasions in the public coffee (In open court; jury not present)
2 shop in your building? 2 THE LAW CLERK: All rise.
A. No. That's not true. THE COURT: All right, thank you. Bring in the jury.
3 Q. Those were the only two occasions that they were in the 3 (Jury present)
coffee shop? THE COURT: All right, thank you. Be seated.
4 A. Yes, that I saw. 4 Government's next witness, Ms. Zornberg.
5 Q. And those two occasions were in 1990-1998, 2000, around 5 MS. ZORNBERG: Yes, your Honor.
6 there? 6 The government -- thank you. The government calls
7 A. I believe between '98 and 2000. 7 James Murray as its next witness.
8 Q. Other than two or three occasions in 1998/2000, you never 8 JIM MURRAY,
9 saw them in that coffee shop having a meeting or otherwise? 9 called as a witness by the government,
10 A. Together? 10 having been duly sworn, testified as follows:
11 Q. Yes. 11 DIRECT EXAMINATION
12 A. Yeah, I don't believe so. 12 BY MS. ZORNBERG:
13 Q. And you have no idea what they were discussing or talking 13 THE COURT: Ms. Zornberg.
14 about in the coffee shop? 14 Q. Good afternoon, Mr. Murray. How old are you?
15 A. No. 15 A. 45.
16 Q. And you have no idea how long they were there, they could 16 Q. Where were you born?
17 have been there a couple of minutes, correct? 17 A. Ireland.
18 A. That's correct. 18 Q. Is that where you grew up?
19 MR. GARDNER: No further questions, your Honor. 19 A. Yes.
20 THE COURT: Thank you. 20 Q. Do you have any siblings?
21 Mr. Lanpher? 21 A. Yeah, five sisters, one brother.
22 MR. LANPHER: Nothing further, your Honor. 22 Q. Can you describe your upbringing in Ireland?
23 THE COURT: All right. You may step down. 23 MR. GARDNER: Objection, your Honor.
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Page 447 Page 449
1 0ALZOLI6 Murray - direct 1 0ALZOLI6 Murray - direct
THE COURT: Sustained. A. I was a laborer, and then done little carpentry work, and
2 Q. What did your father do for a living? 2 then I started my own business.
A. He was a farmer. Q. What does it mean to work as a laborer?
3 MR. GARDNER: Objection, your Honor. 3 A. Shovel and push wheelbarrows and lifted, stuff like that.
THE COURT: Sustained. Q. Were you ever a member of the Carpenters' Union?
4 Q. How far did you go in school? 4 A. Yeah, two times.
5 A. 12 or 13 years of age. 5 Q. Do you remember which Local you joined?
6 Q. Is that when you left school, at age 12 or 13? 6 A. 17 and 157.
7 A. Yeah, maybe. Yeah, 13. 7 Q. Can you just bring yourself a little closer to the
8 Q. What did you do after you left school? 8 microphone. I just want to make sure everyone can hear you.
9 A. I was a welder. 9 After getting your Union card, did you work as a Union
10 Q. Was that in Ireland? 10 carpenter?
11 A. Yes. 11 A. Not really, no.
12 Q. Could you pull your chair up a little closer to the 12 Q. What do you mean by that?
13 microphone, speak right into the microphone. 13 A. Just had to work to get to a job, to a union job, you need
14 Did there come a time when you moved to the United 14 your card to be able to go on a job.
15 States? 15 Q. As carpenter, did you work on Union jobs, putting aside for
16 A. Yes. 16 a moment how you were paid, did you use your card to work on
17 Q. How old were you at the time you moved to the United 17 Union jobs?
18 States? 18 A. Yes. In the beginning, yes.
19 A. 20. 19 Q. And how were you paid?
20 Q. And, well, for what reason did you come to the United 20 A. Sometimes cash, sometimes check.
21 States? 21 Q. Did there come a time when you started your own company?
22 A. I was young, there was no work, and I had an argument with 22 A. Yes.
23 my father and just an opportunity came and I came to the 23 Q. What was the first company you started?
25 (212) 805-0300 25 (212) 805-0300
Page 448 Page 450
states. A. It was a company in the late '80s called Ardcath
2 Q. Did you eventually become a United States citizen? 2 Construction.
A. Yes. Q. And is that Ardcath?
3 Q. Are you married? 3 A. Yes.
A. Yes. Q. And when did you start Ardcath?
4 Q. In what year did you get married, or what age? 4 A. Late '80s, in '89 or '90.
5 A. 12 years ago; not too sure. 5 Q. What kind of company was Ardcath?
6 Q. What is your wife's name? 6 MR. GARDNER: Objection, your Honor.
7 A. Tracy. 7 THE COURT: Overruled.
8 Q. Did she take your last name, is it Tracy Murray? 8 A. Just tried to -- construction company.
9 A. Yes. 9 Q. How large was it?
10 Q. And where did your wife grow up? 10 A. It didn't make it.
11 A. In Ireland. 11 Q. Meaning what?
12 Q. Did you meet her here or in the United States or in 12 A. It wasn't just no size.
13 Ireland? 13 Q. The company was unsuccessful?
14 A. I met her in the states. 14 A. Yes.
15 Q. Do you and your wife have children? 15 Q. After Ardcath failed, did you start another company?
16 MR. GARDNER: Objection, your Honor. 16 A. Yeah, two years down the road; two, three years.
17 THE COURT: Sustained. 17 Q. And what is the name of that company?
18 Q. Do you and your family currently live in the United States? 18 A. On-Par Contracting Construction.
19 A. Yes. 19 Q. In what year did you start On-Par?
20 Q. And where do your parents and siblings live? 20 A. '93, I believe.
21 A. In Ireland. 21 Q. And what kind of work did On-Par do?
22 Q. Mr. Murray, can you tell the jury how you made a living 22 A. Painting, carpentry, everything in the building business.
23 after you first came to the United States? 23 Q. When you first started On-Par, was it a Union company or a
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Page 451 Page 453
non-union company? Q. And what was required of On-Par in terms of wages and
2 A. Non-union. 2 benefits?
Q. How many people worked for On-Par when you first started A. You were supposed to pay the benefits and the wages.
3 it? 3 Q. And what was required with respect to whether On-Par needed
A. Just myself, and then one and then two, so on. to have shop stewards on its job sites?
4 Q. And at the beginning, how much of the work did you do 4 A. You're supposed to call in your job. You'd call District
5 yourself? 5 Council and you tell them you're starting the job.
6 A. A lot, most of it. 6 Q. At the time that On-Par became a Union contractor in 1996,
7 Q. Did there come a time when On-Par became a Union 7 how much of a large scale construction in New York City was
8 contractor? 8 Union work?
9 A. Yes. 9 A. A lot of it, I suppose.
10 Q. When was that? 10 Q. From 1996 forward, was On-Par always a Union contractor?
11 A. Sometime in the late '90s. 11 A. Yes.
12 Q. And what did you have to do in order for On-Par to become a12 Q. Was On-Par a successful company?
13 Union contractor? 13 A. Yes.
14 A. Put a deposit of $5,000 down and sign an agreement. 14 Q. Can you describe what some of -- can you describe to the
15 Q. For what reason did you join -- did you have On-Par signed 15 jury what some of the larger construction jobs were --
16 up as a Union contractor? 16 MR. GARDNER: Objection.
17 A. Just to get Union jobs or bigger jobs. 17 Q. -- that On-Par did in New York City?
18 Q. Can you explain that, why would -- why as a Union carpenter18 MR. GARDNER: Objection, your Honor.
19 could you get bigger jobs? 19 THE COURT: Sustained.
20 A. Well, a lot of the buildings are Union so you can't work on 20 Q. Mr. Murray, I'm handing you what's been marked for
21 the building unless you're a Union contractor, so. 21 identification as government exhibits 56 and 57. Do you
22 Q. I'm going to show you what's been already in evidence as 22 recognize what's depicted in government exhibits 56 and 57?
23 government Exhibit 250. 23 A. Say that again?
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Page 452 Page 454

MR. GARDNER: And, Ms. Geier, can you put that up on Q. Do you recognize what these are photographs of?
2 the screen? 2 A. Yes.
Q. Mr. Murray, is this the Collective Bargaining Agreement Q. What are they?
3 that you signed with the Carpenters' Union? 3 A. It's a building.
A. Yes. MR. GARDNER: Objection, your Honor.
4 MS. ZORNBERG: Ms. Geier, let's turn to the last page 4 THE COURT: Let's see what it is.
5 of that exhibit. 5 MS. ZORNBERG: Your Honor, I can briefly explain if
6 Q. Mr. Murray, you can look at the document or on the screen 6 the Court would like.
7 whatever is easier for you. Do you recognize your signature? 7 THE COURT: Yes.
8 A. Yes. 8 MS. ZORNBERG: We can ask -- we ask a little bit of
9 Q. Okay. On-Par Construction, Jim Murray, president, 9 leeway to point to a few of the job sites On-Par did as it's
10 June 10th, 1996. 10 relevant to a discussion of the conduct on the job sites.
11 Did you ever -- did you read this agreement at the 11 THE COURT: All right, proceed.
12 time? 12 Q. Do you recognize what's depicted in government exhibits 56
13 A. No. 13 and 57?
14 Q. And by the way, do you have difficulty reading? 14 A. Yes.
15 A. A little. 15 Q. What, what is it?
16 Q. Even without reading the agreement, at the time that you 16 A. It's a building in Times Square Tower, I think it's One
17 signed On-Par up in 1996 as a Union contractor, did you have a 17 Times Square.
18 general understanding of what was required of you as a union 18 MS. ZORNBERG: The government offers exhibits 56 and
19 contractor? 19 57.
20 A. Yes. 20 MR. GARDNER: Your Honor, I don't understand for what
21 Q. What was your understanding? 21 purpose. I have an objection. I'm not --
22 A. That you had to hire Union people or you had to do the job 22 MS. ZORNBERG: I'll lay additional foundation.
23 with Union carpenters. 23 THE COURT: Subject to connection or foundation.
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Page 455 Page 457
MS. ZORNBERG: Sure. describe that, where you were doing development?
2 Q. Mr. Murray, did On-Par perform the carpentry work on that 2 A. I done two sites in Riverdale. We bought --
tower? Q. Mr. Murray, did you become a rich man living in the United
3 A. Yes. 3 States?
MS. ZORNBERG: May we now display the exhibits? A. Yes.
4 THE COURT: Yes. 4 MS. ZORNBERG: You can take that down, Ms. Geier.
5 (Government's Exhibits 56 and 57 received in evidence) 5 Q. Can you describe how On-Par grew over time as a company?
6 MS. ZORNBERG: All right, let's put up government 6 A. You get a job and you'd make 10,000, and then you'd put --
7 exhibit 56. 7 you get that and then you get two jobs and you make 20,000 and
8 Q. How many floors was Time Squares Tower, if you know? 8 so on and so on, just keep growing.
9 A. 60, 70. 9 Q. And, by the way, can you just sit up a little bit closer to
10 Q. And can you describe what kind of work On-Par did on the 10 the mic. Still having a little difficulty hearing you.
11 tower? 11 So On-Par started out with how many workers?
12 A. Sheet rock and framing and doors, carpentry; carpentry 12 A. One.
13 work. 13 Q. And it grew to having five or 600 workers?
14 Q. What's sheet rocking? 14 A. Yes.
15 A. It's behind that wall, on your ceiling, its piece of gypsum 15 Q. How were you able to grow On-Par so large?
16 board. 16 A. How do you mean?
17 Q. And what's framing? 17 Q. Well, was there a lot of hard work that you put into that
18 A. It's a metal framing that goes before the gypsum board. 18 company?
19 Q. Was this a Union job site? 19 MR. GARDNER: Objection, your Honor.
21 Q. Taking a step back, at its height, how many Carpenters 21 Q. Tell us -- well, all right. Let's turn to something else.
22 worked for On-Par? 22 Did On-Par operate in a way that violated its
23 A. Oh, five, 700. 23 obligations as a Union contractor?
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Q. And during what timeframe was On-Par the busiest? A. Yes.
2 A. 2002, 2003, 2004, 2005. 2 Q. How?
Q. Can you give the jury a sense of how many job sites On-Par A. We didn't pay the benefits or we didn't pay the check and
3 had going on at once in the New York City area? 3 withholding taxes. We used to pay the guys cash.
A. There -- we were everywhere, I mean from Columbia Q. Can you describe On-Par's work force?
4 University to NYU, to -- we were all over the City, all over 4 A. It was mostly Irish, 85, 90 percent.
5 the tri-state area. 5 Q. Did On-Par's work force include individuals who were
6 Q. How profitable was On-Par for you, personally? 6 illegal, living illegally in the country?
7 A. Very. 7 A. Some of them and some -- yes, majority of them, yes.
8 Q. Besides running On-Par, have you had other businesses or 8 Q. For the workers who were paid cash, how did On-Par -- how
9 investments in the United States? 9 did On-Par actually pay its workers, describe the process?
10 A. Yes. 10 A. We had many sets of books, we had many checkbooks, and then
11 Q. Why don't you tell us how else you made money? 11 we used to leave checks in the banks, and then with the help
12 A. Used to build houses, flip them, bars and restaurants. I 12 from some people at the banks, we'd get cash and then we used
13 also, I also done development in, my own development. I was 13 to have another set, On-Par with many On-Pars for checks. Some
14 starting my own development in apartments, retail apartments. 14 guys got paid checks and it was -- it was a lot of work.
15 Q. When you say you flipped, how -- what does that mean? 15 Q. And to be clear, were some On-Par employees paid correct
16 A. I'd buy a house, fix it up and sell it. 16 Union wages and benefits?
17 Q. And you mentioned bars and restaurants. Did you own bars 17 A. Yes.
18 or restaurants? 18 Q. For the workers who were paid correctly, how did On-Par
19 A. I owned one bar in Manhattan and one bar in Yonkers, Mount19 issue checks?
20 Vernon. 20 A. Through the company called DSI or ADB.
21 Q. What were they called? 21 Q. So did On-Par have one set of books for people paid
22 A. They were called Berks. 22 correctly and other sets of books for everyone else?
23 Q. And when you say you started doing development, can you 23 A. Yes.
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Q. Now, you mentioned that sometimes people at the banks would A. It would violate the agreement.
2 help you. Did you have a corrupt relationship with any bank 2 Q. And on the jobs where On-Par did have shop stewards, what,
officers? if anything, did you do to try to influence how the shop
3 A. Yes. 3 stewards did their jobs?
Q. With who? A. I would, I would meet with them and I would give them cash
4 A. Rosa was the lady's name. 4 for leaving men off the sheets.
5 Q. Do you remember what bank that was? 5 Q. When you say for leaving men off the sheets, what is what
6 A. It was on Cosby Street in the Bronx, HSBC. 6 are you talking about?
7 Q. What did, what did Ms. Lambert do for you? 7 A. The shop steward is given sheets, I think it's a piece of
8 A. We'd give her checks of maybe 100, 200 and she would put 8 paper one to 25, names, Social Security number and that's sent
9 them into an envelope and she would put the cash in an 9 back to the District Council for records.
10 envelope. 10 Q. Is that sheet also known as a shop steward report?
11 Q. Were any of the checks made out to fake names? 11 A. Yes.
12 A. All fake names. 12 Q. And what did the shop stewards do for On-Par in return for
13 Q. And what did you do for Ms. Lambert in return? 13 the cash that you paid them?
14 A. I done some work on her house. 14 A. They wouldn't fill out the sheets or the reports.
15 Q. Mr. Murray, what was the purpose of violating the 15 Q. How did that help On-Par cheat the Benefit Funds?
16 Collective Bargaining Agreement? 16 A. Well, the Union would audit you; they wouldn't have any
17 A. Well, to make money. 17 records of.
18 Q. How did it make On-Par more profitable, explain it? 18 Q. I'm sorry, I didn't hear.
19 A. Well, I'd pay from 25 to $40 an hour cash, and if it was 19 A. When the Union would come and audit your books, they would
20 Union, I'd have to pay $100, so. 20 not -- they'd have no way of knowing there was extra men on the
21 Q. How much did you increase On-Par's profitability by not 21 job sites.
22 paying the correct wages and benefits? 22 Q. Now, were the Union -- were the shop stewards assigned to
23 A. 30, 50 percent. 23 On-Par by the Union or did On-Par get to choose its own shop
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Q. And can you explain to the jury, as a construction stewards?
2 contractor, how much of your work or costs on a job is due to 2 A. The shop stewards were sent by the Union.
the labor cost? Q. What, if anything, did you do to try to make sure that
3 A. One-third material, two-thirds labor. 3 On-Par got shop stewards who would help cheat?
Q. So if you save on the labor, it's a big cost savings? A. Ask that question again?
4 A. Yes. 4 Q. Yes. Did you do anything in order to make sure that
5 Q. Now, how did that -- how did that cost savings help you bid 5 particular shop stewards got assigned to On-Par's job sites?
6 jobs? 6 A. Yes.
7 A. Well, you could be the low bidder. 7 Q. What did you do?
8 Q. Now, as a Union contractor you mentioned that On-Par had an 8 A. Many things. We'd train the shop stewards how to be first
9 obligation to call in new jobs, is that right? 9 special needs, welding, just special needs. So when we sent in
10 A. Yes. 10 our request, we'd put those special needs on, or I talk to the
11 Q. Did On-Par violate that obligation? 11 business agents or we --
12 A. Yes. 12 Q. You talked to business agents?
13 Q. How? 13 A. Yeah.
14 A. We didn't call them in. 14 Q. Let's take an example.
15 Q. Were there shop stewards on On-Par job sites? 15 MS. ZORNBERG: If we could put government exhibit 56
16 A. Some. 16 back up, the photo of the Times Square Tower.
17 Q. So some jobs never had a shop steward? 17 Q. Let's talk about this job. Who was the shop steward on
18 A. Yes. 18 time square tower?
19 Q. Was that a violation of your collective bargaining 19 A. Mike Brennan.
20 agreement? 20 Q. And were you involved in rigging Mr. Brennan's assignment
21 A. It would depend. I had an international agreement, so I 21 as shop steward to this job?
22 was allowed to have two men. 22 A. Yes.
23 Q. How about for a large job? 23 Q. Explain, explain how you did that?
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A. Well, the first steward, we sent him to the wrong address, A. Ask that question again?
2 and then we'd call in the job long before it would start and 2 Q. Yes. Well, let me break it up. Were there certain On-Par
then we'd wait. It was a -- he had to put his name on the jobs where correct wages and benefits were paid?
3 list, and we put him in as a welder special needs, so we got 3 A. Not really, no. Most, most of the jobs were, were shop
him the second time. stewards. Very few, I mean most of the jobs the steward would
4 Q. Let me just review that. You said was it Michael Brennan, 4 work with you.
5 the steward, you ultimately got who put down a welding skill? 5 Q. The steward would work with you?
6 A. Yes. 6 A. Uh-huh.
7 Q. And had you spoken to Mr. Brennan in advance about doing 7 Q. What do you mean by the steward would work with you?
8 that? 8 A. They'd leave people off the sheets.
9 A. Yes. 9 Q. Mr. Murray, did you do anything to influence Union officers
10 Q. Had Mr. Brennan taken cash bribes from you on prior job 10 in the District Council above the level of shop steward?
11 sites? 11 A. Yes.
12 A. Yes. 12 Q. What did you do?
13 Q. All right. And what did Mr. Brennan do on the Times Square 13 A. I fixed their houses, I gave them money.
14 Tower job site to help On-Par? 14 Q. What Union officers did you attempt to influence in that
15 A. He left guys off the sheets, the reports. 15 way?
16 Q. What did you do in return for Mr. Brennan on that job site? 16 A. John Greaney, Mike Forde; just gone blank there.
17 A. I paid him cash. 17 Q. Well let's start with those.
18 Q. How long did the Times, did On-Par's work on the Times 18 MS. ZORNBERG: Can we put up government exhibit 52,
19 square Tower take to complete? 19 already in evidence.
20 A. A year and a half, two years. 20 Q. Mr. Murray, do you recognize the individual in that photo?
21 Q. And over that time, could you approximate how much money21 A. Yes.
22 you gave to Michael Brennan in cash bribes over the course of 22 Q. Who is that?
23 that job? 23 A. It's Michael Forde.
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A. Wages and, wages and bribes; the whole package? Q. And did you make cash payments to him?
2 Q. Did Mr. Brennan put in a full day's work for his wages? 2 A. Yes.
A. He was there most of the time. Q. In what timeframe, approximately?
3 Q. Okay. So separate and apart from his wages, how much cash3 A. 2000 to 2005.
did you give him, however it's easier to estimate, either total Q. At the time that you made these payments to Mr. Forde, did
4 or by week? 4 you know whether he held any position with the Union?
5 A. Hundred thousand. 5 A. Yeah.
6 Q. And how much money did On-Par save by not paying correct 6 Q. What position?
7 wages and benefits just on this job site? 7 A. He was the president or he was the -- he was, he was a
8 A. Oh, a million, maybe more. 8 Trustee and he was a president or he was assistant president.
9 Q. Is On-Par still active in the construction industry? 9 He was --
10 A. No. 10 Q. Did you understand him to be the head of the Union?
11 Q. When did On-Par stop actively working in the construction 11 A. Yes.
12 industry? 12 Q. Did you know whether he also held a position with the
13 A. Sometime in '06, I believe. 13 Benefit Funds?
14 Q. Okay. So from -- was On-Par continuously operating from 14 A. Yes.
15 1996 until 2006? 15 Q. How did you know that?
16 A. Yes. 16 A. It used to come on the sheets, you'd see their names, what
17 Q. In that ten years, approximately how many different shop 17 their there positions were on the top of the Union paper.
18 stewards did you pay off? 18 Q. Can you explain to the jury how you made cash payments to
19 A. I don't know. Lots, many. 19 the head of the Carpenters' Union?
20 Q. More than a dozen? 20 A. Around the holidays, Easter, Christmas, and certain times
21 A. Yes. 21 I'd give it to Finbar O'Neill, I used to -- I'd meet with him
22 Q. And what percentage of On-Par's jobs had either no shop 22 and he'd -- he used to have a house or maybe has a house, I
23 steward at all or a shop steward who was taking cash bribes? 23 don't know, up in the Catskills and he'd say he was going out
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Page 467 Page 469
and I would, I would give him money. A. Sometime around 2000, 2001.
2 Q. I'm handing you now a photograph that's been marked as 2 Q. And can you explain to the jury how it would work, how
government exhibit 54. Do you recognize the individual in that these payments got passed physically from you to Michael Forde?
3 photograph? 3 A. Finbar would say he's going to Art. We used to have a
A. Yes. nickname for Mike Forde, we used to call him the Oldsmobile and
4 Q. Who is it? 4 he'd say I'm going to see Olds. And he'd say, you know, and
5 A. It's Finbar O'Neill. 5 then I would go and give him 20,000 or 10,000 or whatever I
6 MS. ZORNBERG: The government offers exhibit 54. 6 could give him.
7 MR. GARDNER: No objection, your Honor. 7 Q. Did Mr. O'Neill and Mr. Forde have houses near each other?
8 THE COURT: Admitted without objection. 8 A. Yes.
9 (Government's Exhibit 54 received in evidence) 9 Q. Where?
10 MS. ZORNBERG: All right, let's display exhibit 54. 10 A. Up in the Catskills.
11 Q. So let's take a step back. You said that you would give 11 Q. Over the period of time that you were making cash payments
12 money to Finbar O'Neill to give to Mike Forde. But first can 12 to the head of the Carpenters' Union, how much in total did you
13 you tell us what your relationship was with Finbar O'Neill? 13 pay to Mike Forde, approximately?
14 A. I met Finbar in the early '90s when I got in trouble on a 14 A. Over 100,000.
15 Union job in a New York Local called 135. It was a, used to be 15 Q. And how, if at all, did Mike Forde help On-Par in return?
16 known as the Jewish Local. It was downtown, but they took care16 A. He would help me get shop stewards. He would -- I would
17 of the upper, some part of midtown and -- 17 know if there was business agents coming to the job site, just,
18 Q. I'm going to ask you to keep your voice up. 18 I just knew everything that was happening.
19 A. And Finbar made a phone call and got me back to work. And19 MS. ZORNBERG: Now let's put up government exhibit 53
20 then I got to know Finbar and I moved into his building, shared 20 in evidence.
21 office space for many years, and we just got to know each other 21 Q. Do you recognize who that is?
22 through the years. 22 A. It's John Greaney.
23 Q. Did you develop a close relationship with Finbar O'Neill? 23 Q. Who is John Greaney?
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A. Yes. A. He's the president of the 608 Local.
2 Q. Was he involved in the construction industry as well? 2 Q. And Local 608, what area of the City did they cover?
A. Yes. A. The West Side of Manhattan.
3 Q. What were his companies? 3 Q. Did you make cash payments to John Greaney?
A. He has a company called KFCI and a company called A. Yes.
4 (phonetic)Terafera. 4 Q. Can you describe those payments?
5 Q. Was KFCI a Union contractor similar to On-Par? 5 A. Well, in two areas bars up in Yonkers. I went for a few
6 A. Yes. 6 drinks with him and I went into the bathroom and I left an
7 Q. From your conversations with Mr. O'Neill, was he paying off 7 envelope just inside the toilet bowl.
8 people too? 8 Q. I'm sorry, say that again?
9 A. Yes. 9 A. I left an envelope twice in two different locations it was
10 Q. Now, as your relationship with Mr. O'Neill developed, did 10 in the toilet bowl where we talked about.
11 you do anything to help his companies financially? 11 Q. Inside the toilet bowl?
12 A. Yes. 12 A. And then he went to pick it up.
13 Q. What did you do? 13 Q. Approximately, how much in cash did you give to John
14 A. Well, twice a year, many other times, but especially the 14 Greaney?
15 end of June, the end of December, if I had an extra million or 15 A. 10,000, I think two $5,000 payments.
16 million and a half in my account, I would loan it to him for 15 16 Q. How did John Greaney help On-Par in return?
17 days, 20 days. He would put it into his account so his books 17 A. Same as Mike, just would tell the shop stewards, you know
18 would be stronger. 18 this coming and that coming; get shop stewards. You know, he
19 Q. Okay. Now let's just go back then. Can you explain then 19 used to know what was happening.
20 did there come a point in time when Mr. O'Neill started helping 20 Q. Did Mr. Forde and Mr. Greaney know that On-Par was
21 you deliver cash payments to Michael Forde? 21 violating its collective bargaining agreement?
22 A. Yes. 22 A. I would believe so.
23 Q. Approximately, when was that? 23 Q. Let me show you now government exhibit 46. Do you
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Page 471 Page 473
recognize what who that individual is? Riverdale in the Bronx.
2 A. I don't know. 2 Q. Now, I'm going to come -- I'm going to come back to
Q. Okay. Did you ever make cash payments to an individual Mr. Olivieri in a few minutes.
3 named George Dilacio? 3 I just want to bring out some other information about
A. Oh, yeah, I do, that's George, sorry. Yes, I did. other conduct that you've been involved in. Have you been
4 Q. Who was George Dilacio? 4 involved during, the time you ran On-Par, were you involved in
5 A. He's a business agent at 157. 5 the rigging of any bids on contracts?
6 Q. And what part of New York City is covered by Local 157? 6 A. Yes.
7 A. It's the East Side of Manhattan. 7 Q. Can you describe that briefly?
8 Q. What was -- you said he was a business agent? 8 A. Some contractors would call you, you would go down and they
9 A. Yes. 9 would say your bid is 100,000, we'll put it in for 150 and
10 THE COURT: Ms. Zornberg, this testimony is becoming 10 that's -- stuff like that.
11 cumulative and I ask that you bring it home to the issues 11 Q. And then you'd kickback the extra 50?
12 pertinent to this trial. 12 A. We'd work it out.
13 MS. ZORNBERG: I'm happy to move on, your Honor. Let 13 Q. Did On-Par pay all of the taxes that it owed?
14 me -- I just have a few three more questions regarding this 14 A. No.
15 business agent, and then I'll move onto another topic. 15 Q. Did you personally report all of the income that you were
16 THE COURT: All right. 16 earning?
17 Q. What did you do to try to influence George Dilacio? 17 A. No.
18 A. I gave him some money and I fixed his house. 18 Q. Okay. Did there come a time when On-Par joined the Wall &
19 Q. When you say you fixed his house, what did you do? 19 Ceiling Association?
20 A. We put a roof on his house. 20 A. Yes.
21 Q. Did Mr. Dilacio have horses? 21 Q. I'm handing you know you what's been marked as government
22 A. Yes. He also put horses on a farm in Millbrook. 22 Exhibit 414. Do you recognize that document?
23 Q. Did he pay you for storing his horses? 23 A. Yes.
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A. No. Q. What is it?
2 Q. So before we move on, Mr. Murray, were you, as part of your 2 A. It's an application for the Drywall Association.
operation of On-Par, you were paying the head of the Union, Q. Is that the application that you completed in order to join
3 Mr. Forde; yes? 3 the Wall & Ceiling Association?
A. Yes. A. Yes.
4 Q. And were you paying -- you were paying numerous shop 4 Q. Do you recognize your handwriting in the document?
5 stewards you said? 5 A. Yes.
6 A. Yes. 6 MS. ZORNBERG: Your Honor, the government offers
7 Q. Were you paying also Union officers in Local 608 and in 7 Exhibit 414.
8 Local 157? 8 MR. GARDNER: No objection, your Honor.
9 A. Yes. 9 THE COURT: Admitted without objection.
10 Q. Now, you stated earlier that you knew that Michael Forde 10 (Government's Exhibit 414 received in evidence)
11 was a Trustee of the Benefit Funds? 11 MS. ZORNBERG: All right, let's put government Exhibit
12 A. Yes. 12 414 up on the screen. And if we could enlarge the top half.
13 Q. Did you try to influence any other Trustees of the Benefit 13 Q. Okay. It says application for regular membership, dated
14 Funds? 14 July 25, 2001. The applicant's name is On-Par Contracting, at
15 MR. GARDNER: Objection, your Honor. 15 230 South Fifth Avenue, Mt. Vernon, New York.
16 THE COURT: Overruled. 16 Was that On-Par's address at the time?
17 A. Yes. 17 A. Yes.
18 Q. Who? 18 MS. ZORNBERG: Okay. Let's zoom out and turn to page
19 A. Joe Olivieri. 19 two, and at the top, you can enlarge the top half.
20 Q. What did you do to try to influence Mr. Olivieri? 20 Q. It lists a number of different unions that, besides the
21 A. I loaned him money to buy houses together with me. We were 21 Carpenters' Union, and including -- and including the New
22 partners. 22 Jersey Carpenters' Union that On-Par belonged to.
23 I gave him some work in my developments that I done in 23 Did On-Par belong to a number of unions at the time?
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A. Yes. Q. What was your understanding of when this request system
2 Q. Okay. It lists Jim Murray as the president. Were you the 2 started?
president of On-Par? A. Sometime in early 2000, I think.
3 A. Yes. 3 Q. Now, was On-Par accepted into the Wall & Ceiling
MS. ZORNBERG: Okay and let's put up the last page of Association in 2001?
4 the document and enlarge the top three quarters. 4 A. Yes.
5 Q. And at that time you write that your trades were carpentry, 5 Q. What role, if any, did Michael Forde play in that?
6 taper, laborers, sheet metal and iron workers? 6 A. He told Finbar that I was in.
7 A. Yes. 7 Q. Was this during the period of time that you were making
8 Q. Okay. And is that your signature at the bottom? 8 cash payments to Michael Forde?
9 A. Yes. 9 A. Yes.
10 Q. Can you explain to the jury how you came, how On-Par came10 Q. Did On-Par use the request system on a regular basis to
11 to apply to the Wall & Ceiling Association? 11 request its workers?
12 A. George Dilacio gave me an application, I filled it out and 12 A. Yes.
13 I mailed it, I don't know, maybe to the District Council or the 13 Q. Now, Mr. Murray, did there come a time when you heard the
14 Wall & Ceiling Association. 14 name Walter Mack?
15 Q. Was George Dilacio one of the individuals to whom at some 15 A. Yes.
16 point you gave cash bribes? 16 Q. Approximately when?
17 A. Yes. 17 A. The spring of 2003, I believe.
18 Q. Who was the director of the Wall & Ceiling Association in 18 Q. How did you learn who Walter Mack was?
19 2001 when you applied? 19 A. He issued me a subpoena.
20 A. I don't know. 20 Q. Even before you were issued a subpoena, did you know who he
21 Q. Did you know Joseph Olivieri in 2001? 21 was?
22 A. No. 22 A. Yes.
23 Q. Why did On-Par want to join the Wall & Ceiling Association? 23 Q. What was your understanding, first of all, who he was?
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A. Because I could request my own guys if I was a member of A. He was appointed by the courts to get information on
2 the Wall & Ceiling Association. 2 companies like On-Par that was paying people off the books.
Q. Can you explain that? (Continued on next page)
3 A. Well if you weren't a member of the Association, you'd have 3
to have a 50-50 -- it's called a 50-50 Rule, so 50 would come
4 from the hall and then 50 would be allowed from your company. 4
5 But when you're a member of the Association, you could 5
6 request an individual that worked for the company for two days 6
7 or three days. 7
8 Q. So, in effect, did that request system allow On-Par to pick 8
9 all of its own men? 9
10 A. Yes. 10
11 Q. Now, given what you've explained about how On-Par was 11
12 operating in violation of the Collective Bargaining Agreement, 12
13 how did it help On-Par to be able to use the request system? 13
14 A. You request into district council that you're using five or 14
15 six people that previously worked for the company, and then 15
16 they were considered -- they were -- you didn't get -- you 16
17 didn't get men from the Union hall. 17
18 Q. Maybe my question wasn't clear. Let me ask it a different 18
19 way. Did the request system help On-Par go on cheating the 19
20 Benefit Funds? 20
21 A. Yes. 21
22 Q. How? 22
23 A. Because I'd be able to have my own guys on the job sites. 23
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1 0aldoli7 Murray - Direct 1 0aldoli7 Murray - Direct
Q. Have you ever heard of a company called Boom? and the address. Everything up until the "Re" line.
2 A. Yes. 2 Q. OK. So first at the top it says it is a letter from
Q. Do you know whether that company was investigated by Walter Georgoulis & Associates, New York, New York.
3 Mack? 3 What is that?
A. He was one of the first. A. He is my attorney.
4 Q. What effect, if any, did Walter Mack's presence have on On 4 MS. ZORNBERG: OK. The date of the letter is
5 Par? 5 October 15, 2003. It is addressed to the United Brotherhood of
6 A. Horrible, because it was when he came, he changed the 6 Carpenters and Joiners, New York City District Council.
7 whole -- the way that I was running my business. 7 Attention: Michael Forde, Executive Secretary-Treasurer.
8 Q. Can you explain that? Explain what was going on. 8 Let's zoom out. And let's enlarge the body.
9 A. Well, he was -- he was subpoenaing the carpenters to come 9 It is a short letter. I will just take a moment to
10 in and to talk to them, to talk to him and his investigators. 10 read it.
11 He was bringing in the shop stewards, so the shop stewards all 11 "Dear Mr. Forde: Please be advised that my firm
12 got scared, or some of them got scared. And then he told the 12 represents On Par contracting, a signatory to the Collect
13 business agents after my subpoena to check my jobs daily and 13 Bargaining Agreement with the United Brotherhood of Carpenters
14 every Saturday that we worked. 14 and Joiners of America. On Par has been a union shop in good
15 Q. So just to be clear, did you want Walter Mack to discover 15 standing since approximately 1995.
16 or to learn how On Par was running its job sites? 16 "An alarming situation has arisen orchestrated by the
17 A. No. 17 District Council which has caused substantial economic damage
18 Q. Was it public knowledge that you were paying off Michael 18 to my client. Over the last two months multiple business
19 Forde? 19 agents appear on a daily basis at On Par job sites interrupting
20 A. No. 20 work which in turn impacts On Par's productivity and its
21 Q. Was the fact that you were making thee these cash payments 21 overall ability to perform its work. The business agents have
22 to a number of individuals, was that something that you tried 22 engaged in tactics that can only be described as intended to
23 to keep secret? 23 intimidate the men working for On Par and to cause concern
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A. Yes. among owners who are under contract with On Par. The community
2 Q. Let me show you now -- I am handing you now what has been2 of drywall contractors is rather small and news of problems
marked as Government Exhibit 280. circulates quickly among owners, general contractors and union
3 Please take a moment to look at that. 3 employees which has a detrimental affect on my client's
(Pause) business."
4 MS. ZORNBERG: Sorry, your Honor. Just a moment. 4 Let's pause there.
5 Q. Mr. Murray, do you recognize Government Exhibit 280? 5 You can keep that up, Ms. Geier, enlarged.
6 A. Yes. 6 Q. What prompted the sending of this letter by your attorney?
7 Q. What is it? 7 A. Because the business agents were policing my jobs daily.
8 A. It's a letter we sent to the carpenters from my attorney in 8 Q. And what was the connection of that to Walter Mack?
9 '03. 9 A. Well, he gave the command to do it.
10 Q. Was it prepared at your direction? 10 Q. Now --
11 A. Yes. 11 A. I think it was him.
12 Q. Did you see it at the time that it was sent? 12 Q. How was the presence of business agents coming to inspect
13 A. Yes. 13 On Par's job sites detrimental to you and your company?
14 MS. ZORNBERG: Your Honor, the government offers 14 A. Well, we couldn't keep people off the sheets.
15 Exhibit 280. 15 Q. It made it harder to cheat?
16 MR. GARDNER: Your Honor, can I have one moment? 16 A. It made it harder to cheat, and the shop stewards wouldn't
17 THE COURT: Yes. 17 keep -- couldn't keep people off the reports or the sheets.
18 (Pause) 18 Q. Now, the letter was addressed to Mr. Forde. Were you in
19 MR. GARDNER: No objection, your Honor. 19 fact paying bribes to Mr. Forde at the very time that your
20 THE COURT: It is admitted without objection. 20 attorney sent this letter?
21 (Government's Exhibit 280 received in evidence) 21 A. Yes.
22 MS. ZORNBERG: OK. Let's put up Government Exhibit 22 Q. So both you and Mr. Forde knew exactly what On Par was
23 280, and first let's just enlarge the top half of the document 23 doing?
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Page 483 Page 485
A. Yes. A. I believe so. I'm not too sure. I believe so.
2 Q. Let's put up the second page. And let's enlarge the 2 Q. What, if anything, was said at the meeting about the
first -- the top half. October 15, 2003 letter that you had sent?
3 OK. And it goes on to talk about how On Par has felt 3 A. Some guys said I was right to send it and --
the impact of the harassing tactics utilized by the District Q. After your attorneys sent that letter, did On Par continue
4 Council, and it says that On Par reserves its right to 4 to pay workers off the books?
5 preserve -- to pursue legal remedies. We will also seek 5 A. Yes.
6 permanent injunctive relief. 6 Q. Continue to cheat the Benefit Funds?
7 Was this letter an effort to get Walter Mack off your 7 A. Yes.
8 company's back? 8 Q. How did you try to avoid Walter Mack?
9 A. Yes. 9 A. We would work nights, we would work weekends, and --
10 MS. ZORNBERG: Let's zoom out and enlarge the people 10 Q. I'm sorry. I can't hear you.
11 who are copied on the letter. 11 A. We would work nights and we would work weekends and we
12 It is copied to your company; Local 608, attention 12 would just duck and dive.
13 John Greeney; Local 157, William Handley; and the Association 13 Q. And by the way -- actually, before I move on, one of the
14 of Wall, Ceiling and Carpentry, attention Joseph Olivieri. 14 people copied on that October 2003 letter was Joseph Olivieri
15 Again, this letter is dated in October 15, 2003. 15 at the Association of Wall, Ceiling.
16 Q. At the time in October 2003, did you have a relationship 16 For what reason was he copied on the letter?
17 with Joseph Olivieri? 17 A. Because the guy was a member of the Wall & Ceiling
18 A. No. 18 Association.
19 Q. OK. This is before the loans you mentioned earlier before, 19 MS. ZORNBERG: Hold on.
20 before giving Mr. Olivieri work? 20 Your Honor, I just want to point out, we can keep
21 A. Yes. 21 pressing ahead --
22 Q. OK. How about John Greaney? By this point in 22 THE COURT: All right. We are going to go until 5:15.
23 October 2003, had you given cash bribes to John Greaney? 23 MS. ZORNBERG: OK.
25 (212) 805-0300 25 (212) 805-0300
Page 484 Page 486
A. No. Q. Did there come a time when you gave work to Joseph
2 Q. Was this some time after? 2 Olivieri?
A. Yes. A. Yes.
3 Q. OK. And how about William Handley, what was your 3 Q. On what projects?
relationship with him? A. On Cambridge and Oxford in Riverdale in the Bronx.
4 A. I had no relationship with him. 4 Q. What was the timeframe of Mr. Olivieri getting that work?
5 Q. Now, how often, if ever, did you attend meetings of the 5 A. '04/'05.
6 Wall & Ceiling Association? 6 Q. Now, were these the development projects in Riverdale that
7 A. One meeting, and one golf meeting. 7 you described earlier?
8 Q. I'm sorry. So you went to one golf meeting, golf outing? 8 A. Yes.
9 A. Yes. 9 Q. What is the difference between a development and the kind
10 Q. And one meeting of the Wall & Ceiling Association? 10 of work that On Par was doing?
11 A. Yes. 11 A. On Par was a subcontractor, and so we had done painting and
12 Q. Where was that -- where was the meeting? 12 we had done taping and carpentry work. Development was you
13 A. I don't know. It was some part of Manhattan down on 13 owned the property and you were your own contractor.
14 Houston Street. 14 Q. For what reason were you getting into development at that
15 MS. ZORNBERG: Ms. Geier, you can take down the 15 time?
16 exhibit. 16 A. Well, that was to make money and I was backing off from the
17 Q. Did you go to that one meeting before or after you sent the 17 drywall industry.
18 October 15, 2003 letter we just looked at? 18 Q. Why were you starting to move away from the drywall
19 A. It was -- it was after. I went to the meeting after I sent 19 industry?
20 this letter. 20 A. Because the profits had gone down because we couldn't do
21 Q. OK. And who else was there? 21 what we used to be able to do.
22 A. Everybody from the drywall industry. 22 Q. What, if anything, did Walter Mack have to do with that?
23 Q. Was Mr. Olivieri there? 23 A. He was the problem.
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Page 487 Page 489
Q. So let me hand you some exhibits. the witness has pointed to the area near the green star between
2 OK. I have handed you now three photos, Mr. Murray. 2 Riverdale and Oxford Avenue.
Do you recognize -- first of all, are these overhead Q. Were you developing these properties by yourself or with
3 photos? 3 others?
A. Yes. A. With others.
4 Q. Do you recognize the area, the geographical area depicted 4 Q. And who were the other developers?
5 in the photos? 5 A. Mike Bookle and Rob Wagner.
6 A. Yes. 6 Q. And who was Michael Bookle?
7 Q. Do these photos accurately reflect the areas in which you 7 A. He worked for me for -- from the beginning of On Par in
8 developed what you have referred to as the Cambridge and Oxford 8 '95/'96.
9 projects? 9 Q. Was he an On Par employee?
10 A. Yes. 10 A. Yes. He was an estimator for On Par.
11 MS. ZORNBERG: Your Honor, the government offers 11 Q. What was Mike Bookle's role in the Cambridge and Oxford
12 Exhibits 100, 101, 102 into evidence. 12 projects?
13 MR. GARDNER: No objection, your Honor. 13 A. He was a 15 percent partner.
14 THE COURT: Admitted without objection. 14 Q. And let's just put Government Exhibit 102 back up on the
15 (Government's Exhibits 100, 101, 102 received in 15 screen, which just shows both of these projects in relation to
16 evidence) 16 one another.
17 Q. Let's start by putting up Government Exhibit 102. 17 How far apart were they?
18 Mr. Murray, I am just approaching you with a pointer. 18 A. A couple of hundred feet, 3/400 feet.
19 Here is how you work this. This is the button to press so that 19 Q. You also mentioned someone named Robert Wagner?
20 you can point things out. 20 A. Yes.
21 MS. ZORNBERG: Would it be possible, your Honor, to 21 Q. Who was he?
22 just dim the light a little bit so that the photos could be 22 A. He was a man that lived in Riverdale for many years and he
23 seen more readily? 23 worked for a company, Sorci & Diana, that I had known many
25 (212) 805-0300 25 (212) 805-0300
Page 488 Page 490
Q. OK. So, Mr. Murray, using the pointer, can you point out years ago, and that's how I met Rob, through years ago. And
2 the land area where you developed the Oxford property? 2 then he knew the area.
A. Indicating) Q. What was Mr. Wagner's role in connection with the
3 Q. And can you point out the area where you developed the 3 development of the Cambridge and Oxford sites?
Cambridge Avenue property? A. He was the president of Restaurant Corp. and Telfin Terrace
4 A. (Indicating). 4 in Cambridge.
5 Q. What did you intend to develop on these sites? 5 Q. You mentioned something called Restaurant Corp. What was
6 A. There were two apartment buildings, about 45, 50 units on 6 that?
7 Cambridge and about 32, 35 units on Oxford. 7 A. It was our general -- it was our GC. It was our general
8 Q. Now, it is a little hard to see on the overhead, but the 8 company that we used to do work -- carpenters, laborers, people
9 clear photo is the one in front of you. Does this overhead 9 that we would hire.
10 shot show what those properties looked like before you started 10 Q. Now, at the beginning, how were the Cambridge and Oxford
11 developing them? 11 job sites financed?
12 A. Yes. 12 A. On Par and my personal money.
13 Q. Let's do a closer up view of the Cambridge site. Let's put 13 Q. How much did you spend of On Par's money and your personal
14 up Government Exhibit 100. 14 money developing these sites?
15 And using the pointer, would you, Mr. Murray, be kind 15 A. Prior to our bank loan, around 10, 11 million.
16 enough to just point out what specific area you were 16 Q. Were the Oxford and Cambridge projects union or nonunion?
17 developing? 17 A. Nonunion.
18 A. (Indicating) Right there. 18 Q. Did you tell the Carpenters' Union that you were
19 Q. All right. And let's put up Government Exhibit 101. 19 constructing nonunion buildings in Riverdale?
20 And can you point out the area where the Oxford 20 A. No.
21 apartment building was going to be built? 21 Q. Why not?
22 A. (Indicating). 22 A. Because it would be against my union agreement.
23 MS. ZORNBERG: OK. I will let the record reflect that 23 Q. Did you tell Walter Mack that you were building nonunion
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Page 491 Page 493
projects in Riverdale? Q. Let's just put back up Government Exhibit 54, for a moment.
2 A. I told Walter Mack nothing. I took the Fifth. 2 And just to get -- this is Finbar O'Neill?
Q. What did you think at the time would happen if Walter Mack A. Yes.
3 learned you were constructing nonunion buildings in New York 3 Q. He made the introduction in New Jersey?
City? A. Yes.
4 A. There would be a problem. 4 Q. Where was the diner where he introduced you to Joe
5 Q. Meaning what? 5 Olivieri?
6 A. Well, the jobs would have to be stopped or it would be an 6 A. It was on Rt. 4.
7 inconvenience, major, financially. 7 Q. What was the name of Joseph Olivieri's excavation company?
8 Q. What, if anything, did you do to hide your personal 8 A. A company called DNO.
9 involvement in the building of these two projects? 9 Q. Had you heard of it at the time?
10 A. I put Mike and Rob out front as owners and they were so 10 A. No.
11 called -- they owned it in a sense. 11 Q. Did Mr. Finbar encourage you to use Joe Olivieri's
12 Q. And I just want to make sure. You said you put them -- 12 excavation company?
13 A. Out front. 13 MR. GARDNER: Objection, your Honor.
14 Q. Out front? 14 THE COURT: Sustained.
15 A. Rob got his percentage for taking the chance of being the 15 Q. What, if anything, did Mr. Finbar -- did Mr. O'Neill say to
16 president. 16 you about Joseph Olivieri --
17 Q. So on paper Robert Wagner was the president? 17 MR. GARDNER: Objection.
19 Q. In reality, who put the money into developing these 19 Q. Mr. Murray, what did you know about Joseph Olivieri at the
20 projects? 20 time?
21 A. Me. 21 A. That he was the head of the dry -- of the Wall & Ceiling
22 Q. And what decision-making authority did you have with 22 Association.
23 respect to these two projects? 23 Q. Did you know anything else about him?
25 (212) 805-0300 25 (212) 805-0300
Page 492 Page 494
A. Everything. MR. GARDNER: Objection, your Honor.
2 Q. How much of your time personally did you spend working on 2 THE COURT: Overruled.
these buildings in 2004 and 2005? A. At that time?
3 A. A lot. 3 Q. Yes.
Q. Besides yourself and Michael Bookle, were any other On Par A. That he was the head of the Wall & Ceiling Association.
4 employees involved in working on these two projects? 4 Q. OK. Did you come to learn at a later time whether he held
5 A. Yes. Some of the carpenters came over. 5 any other positions?
6 Q. Do you know a person named Kira O'Connell? 6 A. Yeah. When Mack started subpoenaing me, then I realized
7 A. Yes. 7 just what -- just what people's positions were.
8 Q. Who is she? 8 Q. What did you come to learn?
9 A. She used to be my bookkeeper. 9 A. That him and Mike, you would see their name on the top of
10 Q. For On Par? 10 the sheet. They were trustees.
11 A. Yes. 11 Q. I'm sorry. Just to be clear.
12 Q. Did Kira O'Connell know about the hidden accounts that On 12 You are saying that you learned that he and Mike were
13 Par used to pay its workers off the books? 13 trustees. Mike who?
14 A. No. 14 A. Mike Forde.
15 Q. Now, I'd like you to describe to the jury how you came to 15 Q. OK. When was it, approximately, when you were introduced
16 hire Joseph Olivieri to work on these projects. 16 to Mr. Olivieri at the diner in New Jersey?
17 A. I was looking for an excavator. I spoke to Finbar. And 17 A. The winter of '03.
18 one day we were out in Jersey at a restaurant and I was 18 Q. I'm sorry?
19 leaving. And Joe and these other people, they were having some19 A. The winter of '03/the spring of '04, something around that
20 meeting and we just bumped into each other. And Finbar started20 time.
21 to -- we talked and we exchanged numbers. And Finbar said 21 Q. Now, how did your relationship develop from there between
22 that -- Finbar just said Joe does excavating work. And that's 22 you and Mr. Olivieri?
23 how I got introduced to Joe to do the excavation work. 23 A. He called me; I would call him. And he got the job in
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Page 495 Page 497
Riverdale, and we started working -- he started working on it. Q. Could you try to use full names so that it is clear to the
2 We had done the job. We did the job completed. It 2 jury.
was done. A. Mike Google and Robert Wagner and Randy -- I don't know
3 Q. Now, let's go over that. 3 Randy's last name -- met and they had done some estimating.
After you first were introduced to Mr. O'Neill in the Q. What was the timeframe for this?
4 diner on Rt. 4, how soon after that did you speak to him again? 4 A. '04, spring.
5 A. A couple of weeks. A week. I'm not too sure. 5 Q. So was there one meeting with Mr. Olivieri or more than one
6 THE COURT: I'm sorry, Ms. Zornberg, you mentioned 6 meeting from the time you met him in the diner in Jersey until
7 Mr. O'Neill. 7 the time he got the work on Cambridge?
8 MS. ZORNBERG: I'm sorry. I think I misspoke. Thank 8 A. There was more than one.
9 you, Judge. 9 Q. Approximately -- give us a sense of how many times you met
10 Q. Mr. Olivieri, I intended to ask. 10 or spoke with Mr. Olivieri leading up to him getting the work.
11 After you were introduced by Finbar O'Neill to Joseph 11 A. A couple of -- two, three, times. I don't know. There
12 Olivieri in the diaper, when did you next speak to Mr. Olivieri 12 could be more. Who knows? We met -- we met.
13 regarding the work on the Cambridge and Oxford properties? 13 Q. Ultimately, did Mr. Olivieri's company submit a bid for the
14 A. A week or a couple of weeks. 14 excavation work on the Cambridge job site?
15 Q. Did you ever meet -- you mentioned that Mr. Olivieri got 15 A. Yes.
16 the work. Did you ever meet with Mr. Olivieri before giving 16 Q. Was the bid reasonable?
17 him the work? 17 A. We were happy with it.
18 A. Yes. 18 Q. OK. Did you want Mr. Olivieri to get the Cambridge job?
19 Q. OK. Can you describe for what purpose and how often? 19 MR. GARDNER: Objection, your Honor.
20 A. To show him the job. To introduce him to Rob and Mike. 20 THE COURT: Rephrase the question.
21 Q. "Rob and Mike" meaning Robert Wagner and Michael Bookle? 21 Q. What was your role in Mr. Olivieri getting the excavation
22 A. Yes. 22 contract on the Cambridge project?
23 Q. OK. Did you physically bring Mr. Olivieri to the 23 A. It was my decision.
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Page 496 Page 498
construction site? Q. And were you aware of any other bids at the time?
2 A. Yes. 2 A. Just a bid from Randy, the contractor in the Bronx.
Q. What was your understanding at the time of how active Q. Did you want Mr. Olivieri's company to get the work?
3 Mr. Olivieri's company was, DNO? 3 A. Yes.
A. I had no knowledge. I don't know. Q. Why?
4 Q. Did Mr. Olivieri mention to you whether he had any other 4 A. So I get to know Joe.
5 work going on at that time? 5 Q. Why was that important to you?
6 A. No. He just -- we were looking for a recommendation and we 6 A. It was like the more people I knew, the better for the
7 went to see a contractor in the Bronx and that was it. 7 way -- it was better for the company, for On Par.
8 Q. I'm sorry. Who did you go to see in the Bronx? 8 Q. Can you explain that?
9 A. A guy called Randy. 9 A. I just knew a lot of people and so I could, wherever --
10 Q. Did Mr. Olivieri accompany you to that? 10 whenever I needed something or -- how do I explain it? Like
11 A. Yes. 11 Michael Forde, you know, and John Greaney, but then Joe was, if
12 Q. So just explain what was going on so that it is clear to 12 I ever -- he is head of the association so if I had a problem,
13 the jury, so how you came to go to this guy Randy together with 13 he would help me in doing union calls. Because I was a member
14 Mr. Olivieri. 14 of the association. I didn't know him. So I was just trying
15 A. DNO had done work for Randy. So we went to Randy's office15 to get to know him.
16 on White Plains Road in the Bronx. We met with Randy. And 16 Q. Did you believe it would help On Par to develop a closer
17 then -- 17 relationship with Mr. Olivieri?
18 Q. What was discussed at that meeting? 18 A. Yes.
19 A. That DNO can do the work and they knew each other. And 19 Q. Was On Par cheating the Benefit Funds at that time?
20 then we also discussed that Randy might become our general 20 A. Yes.
21 contractor. 21 Q. Was it paying guys off the books?
22 And Mike and Randy got together and they had done some22 A. Yes.
23 pricing. And Rob -- Mike, Rob and -- 23 Q. Doing nonunion work?
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Page 499 Page 501
1 0aldoli7 Murray - Direct 1 0aldoli7
A. Yes. around 30 minutes.
2 Q. Including the Cambridge and Oxford jobs? 2 And Colleen Geier on the phone records, whose
A. Well, On Par didn't work on Cambridge or Oxford, and we had testimony will probably be around 30 minutes.
3 the Restaurant Corp. that Mike and Rob owned. And then I would 3 THE COURT: Is that the balance of your case?
send the men over from On Par and they would work for that MS. ZORNBERG: At this time, yes. We don't know what
4 company. 4 the cross-examination will be, but at the pace we are going it
5 Q. So on paper it was the Restaurant Corp. that ran that 5 looks pretty certain for us that we would be in a position to
6 project? 6 rest by the end of Tuesday, or Wednesday at the latest.
7 A. Yes. 7 THE COURT: All right. What you have given me here is
8 MS. ZORNBERG: Your Honor, should I keep going? Would 8 roughly six hours, about six hours of direct. Assuming that
9 now be a convenient time? 9 bears out, that could be squeezed into about two days.
10 THE COURT: Are you turning to another subject? 10 All right. Is there anything else? If not, I thank
11 MS. ZORNBERG: Well, there is -- yes. 11 you. Have a good evening.
12 THE COURT: All right. So let's adjourn at this 12 MS. ZORNBERG: Not from the government. Thank you.
13 point, then. 13 THE COURT: Thank you. Have a good weekend.
14 All right. As I informed the jury earlier this week, 14 MR. GARDNER: Thank you, Judge.
15 we are not convening tomorrow. We will resume on Monday at 15 (Pause)
16 9:15. 16 MR. GARDNER: Your Honor, there is one issue.
17 And as you go home for the long weekend, again, I 17 THE COURT: Yes.
18 remind you not to discuss the case among yourselves or with 18 MR. GARDNER: The witness is -- we're adjourning
19 anyone on the outside or have any contact of any form with 19 because of the time; it is the end of the day for the witness.
20 anyone or anything relating to this case. And if any of those 20 And I'm asking that -- we have covered a number of areas.
21 things occur, you are directed to inform the Court immediately 21 THE COURT: Yes.
22 and not discuss it with your members. 22 MR. GARDNER: I'm asking that counsel for the
23 Thank you again and have a good weekend. 23 government not continue to prepare the witness on those areas
25 (212) 805-0300 25 (212) 805-0300
Page 500 Page 502
(Jury not present) that were covered prior to his testimony continuing on Monday.
2 THE COURT: You may step down. 2 MS. ZORNBERG: Your Honor, that's absurd. The
THE WITNESS: Thank you. government has an obligation not to speak to its witness while
3 (Witness not present) 3 that witness is on cross-examination, and we abide by that in
THE COURT: All right. Thank you. Be seated. every case. But when a witness is still on direct, the
4 Ms. Zornberg. 4 government has and routinely does consult with its witness as
5 MS. ZORNBERG: Yes, your Honor. 5 it sees fit, and there should be no limitation on that in this
6 THE COURT: Could we go over the line up for -- 6 case.
7 MS. ZORNBERG: I would be happy to do that, your 7 THE COURT: I don't see a warrant for that request,
8 Honor. 8 Mr. Gardner. He is still on direct.
9 THE COURT: How much longer do you expect with 9 MR. GARDNER: But, your Honor, he is a sworn witness
10 Mr. Murray? 10 and to continue to prep him now that he has given some
11 MS. ZORNBERG: On direct probably another 11 testimony and then to be able to advise him on that testimony
12 hour-and-a-half to two hours with Mr. Murray. Maybe shorter. 12 or what they want to ask him to change it, your Honor, is I
13 I have to reevaluate. We have covered a lot of introductory 13 don't agree with that as customarily done. I think once
14 ground. There is still a lot more to cover. I would say at 14 somebody has testified on a subject, that is the subject.
15 least an hour-and-a-half on direct. 15 THE COURT: Your statement begins with a premise, that
16 Then we expect to call John Greaney, about an hour, 16 they are going to do something that's improper, which there is
17 give or take. 17 no way for the Court to monitor what the government is going to
18 Tracy Murray, who is a shorter witness, under an hour. 18 be talking to its witness about. The government could be
19 Larry Cooley, whose testimony is probably on direct 19 directed, and I will direct them, not to do anything improper.
20 probably an hour-and-a-half. 20 Beyond that, I don't see exactly what you are asking.
21 John Marone, whose testimony we expect will be less 21 MS. ZORNBERG: And, your Honor, there is nothing
22 than an hour. 22 improper whatsoever about the government consulting with a
23 John Blauser, whose testimony is short, probably 23 witness while that witness is on direct. Mr. Gardner will be
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Page 503 Page 505
1 0aldoli7 1 654 . . . . . . . . . . . . . . . . . . . . 412
free to cross-examine the witness on whatever he wishes during 401 . . . . . . . . . . . . . . . . . . . . 438
2 cross-examination. 2 63 . . . . . . . . . . . . . . . . . . . . 443
THE COURT: Part of that examination, Mr. Gardner, as 550, 551, 553, 555, 556 and 557 . . . . . . 447
3 you know, is did you talk with the government about these other 3 56 and 57 . . . . . . . . . . . . . . . . . 467
things. 4 54 . . . . . . . . . . . . . . . . . . . . 479
4 MR. GARDNER: Right, during the break. Usually I 5 414 . . . . . . . . . . . . . . . . . . . . 486
5 don't like to do that but I will do it in this instance. OK. 6 280 . . . . . . . . . . . . . . . . . . . . 492
6 THE COURT: All right. Thank you. 7 100, 101, 102 . . . . . . . . . . . . . . . 499
7 MR. GARDNER: Thank you, Judge. 8
8 (Adjourned to 9:15 a.m., Monday, October 25, 2010)
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Page 504
2 BENJAMIN TORRANCE
Direct By Mr. Lanpher . . . . . . . . . . . . 283
4 DANIEL CONLON
7 Redirect By Mr. Lanpher . . . . . . . . . . . 404
8 SALVATORE ARRIGO
11 Arthur Johansen
14 JIM MURRAY
18 655 and 656 . . . . . . . . . . . . . . . . 382
19 26 . . . . . . . . . . . . . . . . . . . . 385
20 22 and 26 . . . . . . . . . . . . . . . . . 387
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25 (212) 805-0300
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1 0ap9oli1
TRIAL 1 0AP9OLI1 Murray - direct
2 UNITED STATES DISTRICT COURT to the jury your conduct in operating a company called On Par.
3 ------------------------------x 2 Do you recall that?
4 UNITED STATES OF AMERICA, New York, N.Y. A. Yes.
5 v. 08 Cr. 0828 (VM)
3 Q. As you sit here today, have you pled guilty to a number of
crimes?
6 JOSEPH OLIVIERI,
4 A. Yes.
7 Defendant.
5 Q. When did you plead guilty?
8 ------------------------------x 6 A. January '09.
9 7 Q. Where did you plead guilty?
October 19, 2010
10 9:15 a.m. 8 A. In this building.
11
9 Q. Before whom?
Before: 10 A. Judge Woods.
12
HON. VICTOR MARRERO, 11 Q. What did you plead guilty to?
13
District Judge 12 A. To seven counts. Conspiracy, defrauding the benefit funds,
14 13 business agents, trustees, payroll taxes, money laundering,
15 APPEARANCES 14 structuring.
16 PREET BHARARA 15 Q. When you say -- when you mention that you pled guilty to
17 Southern District of New York
16 crimes involving business agents and trustees, what crimes were
BY: LISA R. ZORNBERG 17 those?
18 MARK D. LANPHER
Assistant United States Attorneys 18 MR. GARDNER: Objection, your Honor.
19
SULLIVAN GARDNER, P.C. 19 THE COURT: Overruled.
20 Attorneys for Defendant 20 THE WITNESS: Paying business agents cash and
BY: BRIAN L. GARDNER
21 CHRISTOPHER TUMULTY 21 influence trustees.
- also present -
22 SA Roy Pollitt, FBI Case Agent 22 Q. Did any of that criminal conduct relate to Joseph Olivieri?
23 Colleen Geier, Government Paralegal
23 A. Yes.
25 (212) 805-0300 25 (212) 805-0300
Page 519 Page 521
1 0ap9oli1 1 0AP9OLI1 Murray - direct
TRIAL Q. You also mentioned that you pled guilty to something
2 (Jury not present) 2 involving payroll taxes. Did you plead guilty to payroll tax
THE COURT: Ready to proceed? evasion?
3 MS. ZORNBERG: Yes, your Honor. Should the government 3 A. Yes.
put the witness back on the stand? Q. And you mentioned that you pled guilty to the crime of
4 THE COURT: Yes. 4 structuring. In general terms, what was that? What conduct
Bring in the jury, please. 5 was that based on? What did you do?
5 (Jury present) 6 A. I had many companies. And I moved money from one company
6 THE COURT: Good morning. Welcome back. Please be
7 to another company. I would cash checks under ten thousand
7 seated.
8 dollars, go to check cashing places. I would write checks out
8 Proceed.
9 to individuals. Just structuring.
9 JAMES MURRAY, resumed.
10 Q. Mr. Murray, have you been sentenced yet?
10 called as a witness by the Government,
11 A. No.
11 having been previously sworn, testified as follows:
12 Q. What is the maximum prison sentence that you are facing?
12 MS. ZORNBERG: Your Honor, we're missing one juror.
13 A. Forty-eight years.
13 Your Honor, good morning. We'd like to proceed with
14 Q. Do you know when you're going to be sentenced?
14 the direct examination of James Murray.
15 A. No.
15 THE COURT: Okay.
16 DIRECT EXAMINATION 16 Q. At the time that you pled guilty in 2009, did you have a
17 BY MS. ZORNBERG: 17 cooperation agreement with the government?
18 Q. Good morning, Mr. Murray. 18 A. Yes.
19 A. Good morning. 19 Q. Was that agreement oral or in writing?
20 THE COURT: Left me remind the witness that he remains 20 A. It's in writing.
21 under oath. 21 Q. And were you represented by an attorney when you entered
22 THE WITNESS: Yes. 22 into that cooperation agreement?
23 Q. Mr. Murray, when we were here last Thursday, you described 23 A. Yes.
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Page 522 Page 524
1 0AP9OLI1 Murray - direct 1 0AP9OLI1 Murray - direct
Q. Who was your attorney? Q. Mr. Murray you still have the pointer?
2 A. Josh Dratel. 2 A. Yes.
Q. Under your cooperation agreement with the government, what Q. Can you just point out again where the Cambridge site was.
3 do you have to do? 3 A. This is Riverdale Avenue. And this is the site here. It
A. I have to tell the truth. I have to stay out of trouble. goes in here. Goes across up, and then goes onto Cambridge,
4 I have to cooperate or testify when needed. 4 turns around and comes back down.
5 Q. When was the first time you've ever testified in court? 5 Q. What were you planning to build on the site?
6 A. Last Thursday. 6 A. It was a five-story building. Roughly 35 units.
7 Q. How did you feel Thursday? 7 Underground parking.
8 A. Very nervous. 8 Q. How was that development financed?
9 MR. GARDNER: Objection, your Honor. 9 A. I financed that. Me and my company.
10 THE COURT: Sustained. 10 Q. Was this Cambridge project being built union or nonunion?
11 Q. Now, Mr. Murray, if you live up to your obligations under 11 A. Nonunion.
12 the cooperation agreement, what will the government do for you?12 Q. Who did you hire to do the excavation work on the project?
13 MR. GARDNER: Objection, your Honor. 13 A. A company called DNO.
14 THE COURT: Overruled. 14 Q. Whose company was that?
15 THE WITNESS: They're going to write a K letter to 15 A. It's Joe Olivieri's.
16 Judge Woods. 16 Q. Let me show you what's been marked as Government Exhibit
17 Q. What's your understanding of what the letter is? 17 110.
18 A. It's a letter of all the bad things I done and then of all 18 Mr. Murray, do you recognize what that document is?
19 the good things that I've done. 19 A. Yes.
20 Q. Is the government going to recommend a particular sentence20 Q. What is it?
21 to your sentencing judge? 21 A. It's the contract agreement between DNO and the
22 MR. GARDNER: Objection, your Honor. 22 construction company on Cambridge.
23 THE COURT: Overruled. 23 MS. ZORNBERG: The government offers Exhibit 110.
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Page 523 Page 525
THE WITNESS: They can't. MR. GARDNER: No objection, your Honor.
2 Q. Has anyone told you what sentence you'll get? 2 THE COURT: Admitted without objection.
A. No. (Government's Exhibit 110 received in evidence)
3 Q. Even after you've cooperated, what is the highest you can 3 MS. ZORNBERG: Why don't we put Government Exhibit 110
be sentenced to? up. And let's enlarge the top portion, top paragraph.
4 A. Forty-eight years. 4 It says agreement made as of the 22nd day of
5 Q. What's the lowest you can be sentenced to? 5 October 2004, between 3536 Cambridge LLC, having an office at
6 A. Zero. 6 3517 Riverdale Avenue, Bronx, New York, 10463. And DNO
7 Q. What sentence are you hoping for? 7 Construction having offices at 125 Jericho Turnpike, Jericho,
8 A. Hopefully the last one. 8 New York and 4 Ash Road, Briarcliff Manor, New York.
9 Q. Under your cooperation agreement with the government, were9 Q. Mr. Murray, what's 3536 Cambridge.
10 you also required to forfeit any money? 10 A. It was an LLC that we set up for the construction site on
11 A. Yes. 11 the Cambridge site.
12 Q. How much? 12 MS. ZORNBERG: Let's zoom out. Can we enlarge the
13 A. Ten-and-a-half million dollars. 13 bottom paragraph where it says contract sum. Ms. Geier,
14 Q. Now, on Thursday when we left off we were talking about the14 perhaps you can highlight that too.
15 Cambridge and Oxford projects that you were developing. Which15 "As consideration for the full and complete
16 of those projects was started first? 16 performance of work, the owner shall pay to the contractor the
17 A. The Cambridge site. 17 lump sum of $800,000."
18 Q. And approximately when did the construction on the 18 Q. Was that the contract price, the agreed-upon contract price
19 Cambridge site begin? 19 with Mr. Olivieri's company on the Cambridge site?
20 A. Late '03, '04. 20 A. Yes.
21 MS. ZORNBERG: Lets put up Government Exhibit 100 21 MS. ZORNBERG: Now, your Honor, at this time the
22 again just to reorient ourselves. 22 government offers Exhibit 806 which is a trial stipulation of
23 And you have -- 23 the parties. I'd like to read it to the jury.
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Page 526 Page 528
THE COURT: Let me remind the jury that a stipulation (In open court)
2 is an agreement between the parties, which parties understand 2 MS. ZORNBERG: I'll start quickly. We stopped in the
will be admitted into evidence, and the substance of the middle of paragraph one. I'll just read the first paragraph of
3 stipulation is to be taken as true or as proven. 3 the stipulation. This is the stipulation as to Robert Wagner.
(Government's Exhibit 806 received in evidence) Between in or about 2004 and 2010 Wagner was involved
4 MS. ZORNBERG: Okay. Ladies and gentlemen, this is a 4 in the development of two construction projects in Riverdale,
5 stipulation by the parties that if an individual named Robert 5 New York; first, a construction project located at 3536
6 Wagner were called to testify, he would testify as follows: 6 Cambridge Avenue, the Cambridge project, which was operated
7 Number one, that between in or about 2004 and 2010 7 under the corporate name 3536 Cambridge LLC; second, a
8 Wagner was involved in the development of two construction 8 construction project located at 3620 Oxford Avenue, the Oxford
9 projects in Riverdale, New York; first, the construction 9 project, which was operated under the corporate name DJC Realty
10 project located at 3536 Cambridge Avenue, the Cambridge 10 LLC.
11 project, which was operated under the corporate name 3536 11 Government Exhibits 110 through 114 and 116 are true
12 Cambridge LLC. And second -- 12 and correct copies of documents that Wagner prepared or
13 MR. GARDNER: Your Honor, I do have an objection. 13 maintained in the normal course of business in managing the
14 Maybe we can be heard at sidebar. 14 Cambridge project.
15 THE COURT: Yes. 15 Government Exhibit 110 is the contract for DNO
16 MR. GARDNER: Just very briefly. 16 construction to perform work on the Cambridge project.
17 (Continued on next page) 17 Government Exhibits 111 and 112 are summaries of
18 18 payments to DNO reflecting that DNO was issued payments
19 19 totaling 907,000 -- let me get that number again -- $907,572.91
20 20 between September 2004 and August 2005 for its work on the
21 21 Cambridge project.
22 22 Government Exhibit 113 consists of a sampling of
23 23 checks to DNO signed by Michael Bookle for work on the
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Page 527 Page 529

(At the sidebar) Cambridge project.
2 MR. GARDNER: I did stipulate and I don't have an 2 Government Exhibit 114 is the employee contact list
objection to these documents coming in. I find that -- I for 3536 Cambridge LLC.
3 didn't know that we were going to read a testimonial stip in 3 And Government Exhibit 116 is the list of major
the middle of another witness who is testifying. You're subcontractors for the Cambridge project.
4 merging two testimonials. 4 Q. So this is the contract for DNO on the Cambridge site,
5 I don't have an objection to submitting the documents, 5 Mr. Murray?
6 using the documents, but to read a testimonial stip in the 6 A. Yes.
7 middle of somebody testifying, I just think is inappropriate. 7 Q. Let's look at page twelve of the contract which is the
8 THE COURT: I don't see anything wrong with that 8 signature page.
9 Mr. Gardner. 9 Mr. Murray, do you have that in front of you?
10 MR. GARDNER: She's 'putting in testimony from a 10 A. Yes.
11 different witness in the midst of testimony of somebody who is 11 Q. So, do you recognize the signature of who signed as a
12 on the stand. 12 member of 3536 Cambridge Avenue LLC?
13 MS. ZORNBERG: Your Honor, this is just designed to be 13 A. Rob Wagner.
14 efficient, to move things along quickly. 14 Q. And did you review this contract before it went out?
15 MR. GARDNER: I thought We'd do it before or after, 15 A. Yes.
16 not in the middle. If the Court thinks it's fine -- 16 Q. Beside hiring DNO, what was your role on the Cambridge
17 THE COURT: It doesn't matter, frankly. 17 project in hiring different trades and subcontractors?
18 (Continued on next page) 18 A. Well my role was I bought all the sites. I assembled -- I
19 19 bought the land. I assembled sites. I hired the architects.
20 20 I hired the engineers. I put Rob and Mike together. And I
21 21 hired all the subs and reviewed every contract.
22 22 Q. Why didn't you sign this contract?
23 23 A. Because I was signed -- Jim Murray was signed with many
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Page 530 Page 532
local unions, carpenters, painters, tapers, operating Q. You were introduced to Finbar?
2 engineers, just -- lots of unions. 2 A. I was introduced to Joe Olivieri. Finbar introduced me.
Q. And can you explain what it is about the fact that you had The weeks following, I got in contact, or we contacted
3 signed up with unions that prevented you from signing the 3 each other. And that's how we hired Joe Olivieri's DNO.
contract on the Cambridge site? Q. Did you have any concern at the time that Joe Olivieri
4 A. I wanted to do the job nonunion, and it would be cheaper to 4 could report you to the union for doing this nonunion work?
5 build, and it would be more money at the end, and I couldn't do 5 MR. GARDNER: Objection, your Honor.
6 the nonunion job. Me or On Par wouldn't be -- it would be -- I 6 THE COURT: Overruled.
7 was a signature to many unions. 7 THE WITNESS: It never entered my mind because Finbar
8 Q. What did you believe would happen if the union learned you 8 had recommended me to DNO and it was in DNO's interest to do
9 were behind the Cambridge project? 9 the job. It was a nonunion job. So it would be a conflict of
10 A. They'd get -- they'd start litigation and try and get 10 interest if I was reported to the union.
11 jurisdiction over the job. 11 MS. ZORNBERG: Let's put up Government Exhibit 54 in
12 Q. I'm sorry. You said they'd start litigation? 12 evidence.
13 A. And then they would try and get jurisdiction over those 13 Q. Is this Finbar O'Neill who you were referring to?
14 jobs and try and turn them into union jobs instead of nonunion 14 A. Yes.
15 jobs. 15 Q. At the time that he recommended Joseph Olivieri to you as a
16 Q. What, if anything, did you do in order to hide your 16 contractor, were you involved in any criminal activity with
17 involvement in the Cambridge project? 17 Finbar O'Neill?
18 A. Mike Bookle, who worked for my company, On Par Construction 18 A. Yes.
19 for many years, ten years, he became my partner. And Rob 19 Q. What type of criminal activity?
20 Wagner, who is a Jewish gentleman who works in Riverdale. And 20 A. As I said on Thursday, we -- he used to do payoffs to me to
21 these sites were in a major Jewish neighborhood. So I needed 21 Michael Forde, the head of the union. He -- in turn, I would
22 someone to represent me in that community, and he became my 22 do small jobs for him. And then in turn I would give him
23 partner. 23 substantial monies at the end of June and at that time end of
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Page 531 Page 533
Q. Did you intentionally leave your name off of all Cambridge December to make his books a lot better than they were for
2 LLC documents? 2 bonding capability, for bank loans.
A. Yes. Q. How close were you with Finbar O'Neill in 2004?
3 Q. Now, if you were hiding your involvement in the Cambridge 3 A. In 2004 we were very close.
project from the union, did you trust Joseph Olivieri not to Q. So, what was it about Finbar recommending Mr. Olivieri to
4 report you? 4 you that gave you a comfort level?
5 MR. GARDNER: Objection, your Honor. 5 A. Finbar wouldn't recommend someone that was going to cause
6 THE COURT: Sustained. 6 me problems.
7 MS. ZORNBERG: Judge, I'd request a little leeway. I 7 Q. Let's put up now government --
8 will try to rephrase but this is -- 8 MS. ZORNBERG: Well, the government offers Exhibit 111
9 THE COURT: Rephrase. It's a leading question. 9 which was a subject of the stipulation we just read.
10 MS. ZORNBERG: Okay. 10 THE COURT: Admitted pursuant to stipulation.
11 Q. Did Joseph Olivieri ever report to the union your 11 (Government's Exhibit 111 received in evidence)
12 involvement in the Cambridge project? 12 MR. GARDNER: Yes, your Honor.
13 MR. GARDNER: Objection, your Honor. 13 Q. I'll hand you a copy, Mr. Murray.
14 THE COURT: Sustained. 14 So just referring back to the stipulation, this is a
15 Q. How did you come to hire Joseph Olivieri for the Cambridge 15 summary of the payments to DNO on the Cambridge job.
16 project? 16 MS. ZORNBERG: Ms. Geier, could you enlarge the top,
17 MR. GARDNER: Objection, your Honor. 17 the text portion, please.
18 THE COURT: Overruled. 18 Let's just highlight, as we go, the bottom line first.
19 THE WITNESS: As I said on Thursday, I was having 19 So the earliest date is at the bottom.
20 breakfast with another contractor that we had done a lot of 20 Q. Do you see the total is 907 -- 907,000 figure, 572.91.
21 work together, Finbar O'Neill. We met -- it's on Route 4 in 21 First payment September 2004 for a hundred thousand.
22 New Jersey, a diner. And I was introduced to Finbar the weeks 22 Next payment October 18, 2004, a hundred thousand, and
23 following. 23 so forth.
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Page 534 Page 536
The payments between September 22, 2004 and August 16, A. They had said the site was, on the Riverdale side of the
2 2005. 2 Bronx, you had to -- it was maybe a 40 feet drop from the
Mr. Murray, the contract that we looked at a moment Cambridge because the site was like this, came down. So we had
3 ago was dated in October of 2004 but this reflects that the 3 to sheer it.
first payment to DNO was made in September of 2004. Q. You had to what?
4 Is that unusual? 4 A. We had to dig and sheer down the material. We had to dig
5 A. No. 5 the rock. And the neighbor's garden collapsed. So there was a
6 Q. Why not? Could you just describe how relationships with 6 lot of anxiety around that moment.
7 subcontractors work? 7 Q. I'm going to show you what's been marked as Government
8 A. You're given a verbal and then you start the job. And it 8 Exhibits 87 and 88.
9 usually takes -- I don't know usually, but it's company, you 9 Mr. Murray, do you recognize what's depicted in
10 start the job, and then you get a contract. And then you 10 Government Exhibits 87 and 88?
11 invest -- invoice off your contract. 11 A. Yes.
12 Q. So, Mr. Murray, if the earliest payment on the Cambridge 12 Q. And what -- generally what do they show? Where were these
13 site to Mr. Olivieri's company was made in September 22, 2004, 13 photos taken?
14 how long prior to that date did you start communicating with 14 A. This is the excavation site in Cambridge. That's the site
15 Mr. Olivieri about doing the excavation work on this project? 15 where we're digging. Prepared to digging out the excavation.
16 A. The spring of '04. 16 Q. Do these photos fairly and accurately depict how the site
17 Q. And what did those communications involve? 17 looked during the problem of the garden wall?
18 A. Of how to excavate. I mean it was a difficult site. It 18 A. Yes. The site is a lot bigger than these photos.
19 was a lot of rock, hard rock it had to take down. It was 19 MS. ZORNBERG: Your Honor, the government offers
20 between an apartment building on the left. We had a bar on the 20 Exhibits 87 and 88.
21 right. The bar was a hundred years old. And then it went 21 MR. GARDNER: No objection, your Honor.
22 major uphill to Cambridge. 22 THE COURT: Admitted without objection.
23 So we talked about, was DNO able to do it, you know, 23 (Government's Exhibits 87 and 88 received in evidence)
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Page 535 Page 537

just -- it was a big job, big job for me. THE COURT: Counsel please approach.
2 Q. Did you personally meet with Mr. Olivieri leading up to 2 (Continued on next page)
when the work actually began?
3 A. Yes, many times. 3
MS. ZORNBERG: We can take down Government Exhibit
4 111. 4
5 Q. How closely did you supervise the work at the Cambridge 5
6 site? 6
7 A. Daily, if not every other day. 7
8 I used to start work with On Par Construction 8
9 5:30-ish. And then the people would start in my office at 9
10 seven because construction jobs are at seven in the morning. 10
11 And then leaving Mount Vernon, I'd go down the West 11
12 Side and I'd drive by and meet with Rob. 12
13 Mike used to be working for On Par at that time. 13
14 Q. You're referring to Rob Wagner and Mike Bookle? 14
15 A. Yes. 15
16 Q. How often, if ever, did you speak or meet with Mr. Olivieri 16
17 at the Cambridge site while the excavation work was going on? 17
18 A. Oh, many times; lots of times. 18
19 Q. Did any problem develop during the excavation phase of the 19
20 construction? 20
21 A. Yes. A couple problems. That's construction. There's 21
22 always some difficulties. But we got over them. 22
23 Q. Describe what problems arose during the excavation phase. 23
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Page 538 Page 540
(At the sidebar) (In open court)
2 THE COURT: I'm wondering where the government is 2 MS. ZORNBERG: Let's put up Government Exhibit 88.
going with all this detail about this guy. Q. Mr. Murray, can you tell the jury what you see in that
3 MS. ZORNBERG: I'm happy to tell you, Judge. Part of 3 picture, in Government Exhibit 88?
the perjury case is that Mr. Olivieri was asked if he had any A. That's where demolition was going on. And this is where
4 business dealings with Jim Murray. And he denied it under 4 the houses were up on the top of the site. And the gardens all
5 oath. 5 around here to all across here started collapsing.
6 THE COURT: I know. And that's the underlying thing. 6 Q. How was the problem addressed?
7 But what does that have to do with garden walls collapsing in 7 A. We had to hire an outside contractor to come in, drill the
8 the middle of construction? 8 bedrock, put spikes in. And then we had to put a steel blanket
9 MS. ZORNBERG: There are two examples, two incidents 9 and then spray concrete foam over that blanket to stop the
10 relating to the excavation of this particular project where 10 erosion.
11 Mr. Murray and Mr. Olivieri both had to step in and had 11 Q. How involved was Mr. Olivieri in this issue?
12 substantial meetings and communications. 12 A. Everybody was involved.
13 We'll move through it quickly, but it's important to 13 Q. Including Mr. Olivieri?
14 establish their direct dealings. 14 A. Including Mr. Olivieri, and myself, Rob, Mike, the
15 THE COURT: I agree. But he has already testified 15 architects.
16 numerous times that he met repeatedly with Mr. Olivieri during 16 Q. Do you know an individual named John Blauser?
17 the course of the construction. 17 A. Yes.
18 MS. ZORNBERG: Your Honor, there is a difference 18 Q. What was his role on the Cambridge site?
19 between him just saying I met with him and him describing 19 A. His role was he, he was our job super, superintendent, site
20 detailed events that a jury could find Mr. Olivieri himself 20 super.
21 would not have forgotten because they are noteworthy. 21 Q. Was Mr. Blauser also involved in meetings with yourself,
22 We'd ask a little leeway with the assurance to the 22 Mr. Olivieri, and others about this garden wall problem?
23 Court that I'll move through the material expeditiously. But 23 A. Yes.
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Page 539 Page 541
we think it's very important to the government's case. Q. I'm handing you now what's been marked as Government
2 MR. GARDNER: I didn't want to object because I don't 2 Exhibit 93.
want the jury to think I have any objection, I fear these. Do you recognize that -- what's shown in that
3 But, again, I question the relevance, your Honor, whether or 3 photograph?
not there was -- he doesn't forget that there was excavation A. Yes. That's not 93.
4 and that he this to do excavation at the project. And this 4 Q. First, does this photo fairly and accurately depict the way
5 witness has already testified that he's met him many times at 5 the Cambridge site looked after the garden wall problem was
6 the project. He described the difficulties of what he did. 6 rectified?
7 MS. ZORNBERG: Your Honor, in the deposition 7 A. Yes.
8 transcript Mr. Olivieri was asked specifically: Did you ever 8 MS. ZORNBERG: The government offers Exhibit 93.
9 meet James Murray at that project and he said no. So, a few 9 MR. GARDNER: We do object, your Honor.
10 examples I think -- 10 THE COURT: Admitted. Noted objection.
11 MR. GARDNER: Not one of the charged perjury counts, 11 (Government's Exhibit 93 received in evidence)
12 your Honor. That just shows you that they're trying to get 12 Q. Let's put up Government Exhibit 93.
13 into other areas that are not part of the charged perjury. 13 Can you just briefly point out, Mr. Murray, how the
14 THE COURT: Let's see if you can just get through 14 garden wall problem was fixed?
15 expeditiously and summarize. 15 A. Yes. There, that little spot there, there, that's where
16 (Continued on next page) 16 they drilled. That's all the drilling, that they put a screw
17 17 and an anchor. And then they foamed. That's the cement on the
18 18 back of the garden. Stopped the erosion.
19 19 Q. How much did it cost for that cement blanket to be placed
20 20 there?
21 21 MR. GARDNER: Objection, your Honor.
22 22 THE COURT: Overruled.
23 23 THE WITNESS: 250, around $250,000.
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Page 542 Page 544
1 0AP9OLI1 Murray - direct 1 0aproli2 Murray - direct
Q. Who paid for it? notation for "backfill."
2 A. The construction -- Rob -- what do you call, Rob, myself 2 Mr. Murray, do you know do you know what this check
and Michael. was for?
3 Q. When you say Rob, yourself, and Michael paid, who was 3 A. Yes.
supplying the funds for the project at that point? Q. Can you explain to the jury how this check came to be
4 A. At that time, I was supplying the funds. 4 written.
5 (Continued on next page) 5 A. After the excavation, then we had to build walls for the
6 6 building. As we built the walls, there was fill needed to be
7 7 brought back in. So DNO had to supply us with fill. It was a
8 8 $15,000 extra for bringing in grade to fill up the gardens that
9 9 had fallen down.
10 10 Q. Did you have a dispute with your partners Mr. Wagner and
11 11 Mr. Bookle about who should bear the expense of the $15,000?
12 12 A. Yes.
13 13 Q. Can you describe that dispute to the jury.
14 14 A. Rob and Mike felt we shouldn't pay for it. I just said
15 15 I'll pay for it. That's the reason why it says "loan" here.
16 16 Q. Who did Robert Wagner and Michael Bookle think should pay
17 17 for the cost of the backfill?
18 18 A. DNO.
19 19 Q. Mr. Olivieri's company?
20 20 A. Yes.
21 21 Q. For what reason did you disagree and not want Olivieri's
22 22 company to be back-charged?
23 23 MR. GARDNER: Objection.
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Page 543 Page 545
1 0aproli2 Murray - direct 1 0aproli2 Murray - direct
Q. Did Rob Wagner and Michael Bookle supply any of the funds? THE COURT: Overruled.
2 A. They never supplied a penny, no. 2 A. I didn't want to piss Joe off.
Q. Was there any back charge to DNO, Mr. Olivieri's company, Q. Why not?
3 to fix this garden wall problem? 3 A. Because I was in the middle of, after being subpoenaed by
A. No. Mack and On Par was going to be shut down -- after being
4 Q. What is a back charge? 4 deposed by Walter Mack, I called Joe, and Joe had helped me, so
5 A. It's a horrible word. It's if some work is not completed, 5 Mack didn't shut me down. I wasn't closed. So for me to
6 if you're painting a wall and for some unknown reason the paint 6 back-charge the 15 grand, I didn't do it. I didn't feel it was
7 doesn't dry the way it's supposed to dry and then the 7 right.
8 contractor will maybe instead of giving you a $100 fee, he 8 Q. Let me point out, it is only barely visible, the date of
9 might take $10. That's a back charge. 9 this check was July 6, 2005. We are going to speak a little
10 Q. Let's put up now Government Exhibit 113. Your Honor, it 10 later about what you mentioned, the Mack subpoena and the
11 was mentioned in the stipulation we read, we offer it pursuant 11 deposition. But by July 6, 2005, had Mr. Olivieri done
12 to the stipulation. 12 anything to help On Par?
13 THE COURT: Admitted pursuant to stip. 13 A. Yes.
14 (Government's Exhibit 113 received in evidence) 14 Q. What had he done?
15 MS. ZORNBERG: This is going to be difficult to see on 15 A. He had called the district council. When O'Dwyer &
16 the screen. Let's turn to the third page, Ms. Geier. I'm 16 Bernstein, Steve whatever, I can't pronounce his name, Mack had
17 handing the witness a copy. 17 ordered him to shut us down after I was deposed in I believe
18 Q. Since it's difficult to see, let me read it, and then I can 18 March of '05. I had called Joe and Joe had called the district
19 pass it around if the jurors want to see it. In the top left 19 council and spoke to, I believe, Gary Rothman, Mike Forde. But
20 it says, 3536 Cambridge Avenue LLC. It's a check made out to 20 we weren't shut down.
21 DNO Contracting in the amount of $15,000, and it lists DNO over21 Q. Turning back to this exhibit, where it says "loan - Jim,"
22 there. Here there is a notation "backfill." Then below there 22 that refers to what?
23 is a notation "loan - Jim." On the bottom also there is a 23 A. Mike and Rob didn't want it to come out of their profits,
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Page 546 Page 548
so I paid it, don't worry about it. Q. Did Mr. Olivieri come to the site?
2 Q. Was Mr. Olivieri back-charged for any cost at all on the 2 A. Yes, the following day.
Cambridge site? Q. What did he say to you and what did you say to him about
3 A. No. 3 this argument?
Q. Mr. Murray, was Mr. Olivieri at the Cambridge site every A. He worked it out. Me and the old man didn't talk after
4 day? 4 that. The old man came back to finish the job.
5 A. No. 5 MS. ZORNBERG: We can take that down.
6 Q. Who did he have working for his company DNO at the 6 Q. While Mr. Olivieri's company was working on the Cambridge
7 Cambridge site? 7 site, how often, if ever, did he visit On Par's offices?
8 A. I remember the excavator driver. He was a middle-aged man 8 A. Two or three times.
9 about my age. And then there was an older gentleman from 9 Q. For what purposes?
10 Italy, from the other side, I believe. He had gray hair. He 10 A. One time to get a check. Another time he gave me and my
11 had a couple or four guys. 11 secretary a proposal for another venture that he was doing, a
12 Q. He had a couple of other guys, you said? 12 pizza place. There was another one that's just slipping my
13 A. Yes. 13 mind at the moment.
14 Q. Did there come a time when you had an argument with one of 14 Q. Where were On Par's offices located at the time?
15 Mr. Olivieri's employees? 15 A. In Westchester, Mount Vernon, 237 Fifth Avenue, just off
16 A. The older gentleman, yes. 16 the Bronx border.
17 Q. What happened? 17 Q. Refer back to Government Exhibit 113, which are the
18 A. We were digging close to the bar wall on the Riverdale 18 assortment of checks. I won't put them up because they are
19 side. The building is a hundred years old and the bricks were 19 very hard to see. Do you have them before you, Mr. Murray?
20 cracking and the bar owner was complaining. We just got into 20 A. Yes.
21 an FU and this, this, and that. Then Joe came and I wasn't 21 Q. Do you recognize who signed the checks to DNO on the
22 allowed to talk to the old man. We finished the job. 22 Cambridge job site?
23 Q. Mr. Murray, I'm showing you what's marked as Government 23 A. Michael Bookle.
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Page 547 Page 549
Exhibit 82. Do you recognize what is depicted in that photo? Q. Just so we are all on the same page, who was Mr. Bookle.
2 A. Yes. That's the construction site. 2 A. Mike worked for me for over ten years as an estimator the
Q. Does it fairly and accurately depict how the Cambridge job my office.
3 site appeared around the time that you had an argument with Mr. 3 Q. Was he an On Par employee?
Olivieri's employee? A. For ten years.
4 A. Well, I mean, around that time? I'm not a hundred percent 4 Q. Where was his physical office?
5 sure it was that time. But it was sometime around then, yes. 5 A. At the start, '04, '05, 237 Fifth Avenue in Mount Vernon.
6 MS. ZORNBERG: The government offers Exhibit 82. 6 Then he moved in late '05 to the office that we created in
7 MR. GARDNER: No objection, your Honor. 7 Cambridge.
8 THE COURT: Admitted without objection. 8 Q. Did you discuss with Joseph Olivieri that Michael Bookle
9 (Government's Exhibit 82 received in evidence) 9 was On Par's estimator?
10 MS. ZORNBERG: Let's display Government Exhibit 82. 10 A. I can't say I did. I know Joe would have known that he
11 Q. You mentioned that there was a bar. Can you see the bar in11 worked for On Par, but maybe not as an estimator. I don't know
12 this photo? 12 that he knew Joe.
13 A. That's it there. 13 Q. How long did the excavation work on the Cambridge site take
14 MS. ZORNBERG: Let the record reflect the witness is 14 to complete?
15 pointing to the brick edifice in the middle. 15 A. Eight, ten months.
16 A. When we started the side, this is where the site was. What 16 Q. Did Joseph Olivieri ever report to the union that you, Jim
17 we had to do was take it all out, this building, all that wall 17 Murray, were involved in that nonunion job site?
18 started cracking, there was a few hot moments. 18 MR. GARDNER: Objection.
19 Q. Did you raise your voice with Mr. Olivieri's worker? 19 THE COURT: Rephrase the question.
20 A. Yes. I have a temper. 20 Q. To your knowledge, Mr. Murray, did Joseph Olivieri ever
21 Q. Did you think he had done something wrong on the site? 21 report to the union your involvement in the Cambridge job site?
22 A. I don't know. I just panicked with the owner complaining. 22 MR. GARDNER: Objection.
23 We just had an argument. 23 THE COURT: Overruled.
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Page 550 Page 552
A. Not to my knowledge. brooms, office equipment, so on.
2 Q. Let's turn now to the Oxford project. 2 Q. Was your name listed as an owner of either D.J.C. Realty or
MS. ZORNBERG: Let's put up Government Exhibit 101 in 915 East 107th Street Restaurant Corp.?
3 evidence. We took a look at this last Thursday. 3 A. No.
Q. Mr. Murray, can you quickly point out where the Oxford Q. Why not?
4 project was and describe what you were building on that site. 4 A. Same as I said before. I'm a signatory with a lot of
5 A. This is Oxford. Riverdale is here. That's the Cambridge 5 locals, and it would be a conflict if I owned it.
6 site right there. It started here, went cross, over, and up. 6 Q. Did you hide your involvement in the Oxford project as you
7 It's one of the highest points in Riverdale. It was going to 7 did in the Cambridge project?
8 be a very special job, almost 15 stories. 8 A. Yes, I did.
9 MS. ZORNBERG: Let the record reflect that Mr. Murray 9 Q. Let's zoom out now and enlarge the bank statement,
10 is pointing to the section in the middle of the photo. 10 paragraph 2, where it says "Contract Sum" and point out that
11 Q. You mentioned that this was a very special project. Why? 11 this contract is for $300,000. Now let's turn to page 12 of
12 A. When I came to America, I always had a lot of dreams, and I 12 the document, the signature page. Let's enlarge the signature
13 set out to be a contractor, and I become a contractor. Then I 13 block. Do you recognize who signed this contract, Mr. Murray?
14 believed I would be able to build high rises in America. That 14 A. Yes, I do. Mike Bookle and Joe Olivieri.
15 was my dream. This was my first. 15 Q. Again, how come you didn't sign this contract?
16 Q. How much of your own money did you put into this project? 16 A. Because it would be a conflict of interest. I couldn't
17 A. A little over 10, 10 million. 17 sign this contract. This was a nonunion site.
18 Q. Was the Oxford site nonunion or union? 18 Q. Did Mr. Olivieri ever report to the union, to your
19 A. Nonunion. 19 knowledge, your involvement in the Oxford site?
20 Q. Who did you hire to do the excavation work on the Oxford 20 A. Not to my knowledge, no.
21 side? 21 Q. Let's put up Government Exhibit 131, the record of payments
22 A. DNO. 22 on the Oxford site, and enlarge the top portion. The record of
23 Q. Mr. Olivieri's company? 23 payments reflects total payments of $336,770. That's a little
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Page 551 Page 553
A. Yes. over the contract price, Mr. Murray?
2 MS. ZORNBERG: Your Honor, I would now like to read 2 A. Yes.
the remaining paragraph of the Robert Wagner stipulation. Q. The first payment on the Oxford site was on June 14, 2005,
3 THE COURT: All right. 3 and there were payments through August 30, 2005.
MS. ZORNBERG: It provides as follows. You can take that down.
4 "Government Exhibits 130 through 133 are true and 4 Mr. Murray, how did the excavation work on the Oxford
5 correct copies of documents that Wagner prepared or maintained 5 site compare to the work on the Cambridge site?
6 in the normal course of business in managing the Oxford 6 A. That was a different job. The Oxford site was a flatter
7 project. Government Exhibit 130 is the contract for DNO to 7 site. It was just a lot easier than the Cambridge site.
8 perform work on the Oxford project. Government Exhibit 131 is 8 Q. Did you ever meet with Mr. Olivieri in connection with the
9 a summary of payments reflecting that DNO was issued payments 9 Oxford site?
10 totaling $336,770 between June 2005 and August 2005 for its 10 A. Yes.
11 work on the Oxford project." 11 Q. Can you describe what you recall of those meetings.
12 Q. Let's go ahead now and put up Government Exhibit 130, which 12 A. We met to talk about the site, show him, walk around. It
13 was referenced in the stipulation as the agreement with DNO on 13 was a big site. Just to show him. Then he got the job, and
14 the Oxford project. I'll hand you a copy, Mr. Murray. Ms. 14 then he brought -- then the excavators have to arrive, and his
15 Geier, could you enlarge and highlight the top paragraph. It 15 men came.
16 says, "Agreement, made as of the 6th day of July, 2005 between 16 Q. Were there any issues with the excavation work done at the
17 D.J.C. Realty LLC (915 East 107th Street Restaurant Corp.), 17 Oxford site?
18 having an office at 3517 Riverdale Avenue, Bronx, New York, and 18 A. At the end, yes.
19 D.N.O. Construction Corp., 98 Cutter Mill Road, Great Neck, New 19 Q. Can you describe that?
20 York, 11021." 20 A. The elevator pit was put in the wrong place.
21 Before we zoom out, Mr. Murray, what was 915 East 21 Q. How was that problem addressed?
22 107th Street Restaurant Corp.? 22 A. We dug a new pit and put it in the right place.
23 A. That was our daily operating account for material, for 23 Q. Who bore the expense of fixing that problem?
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Page 554 Page 556
A. I did. Q. Let's put up Government Exhibit 610 first. Ms. Geier,
2 Q. Did you ever back-charge Mr. Olivieri's company based on 2 could you enlarge the top check portion of this bank record.
the elevator problem? It says it's an official credit check. The date is January 10,
3 A. The pit problem? 3 2005, to James Murray in the amount of $730,000, addressed to
Q. Yes. Michele Marianna Bonsignore.
4 A. No. 4 Let's put up Government Exhibit 609 up. Let's enlarge
5 Q. Why not? 5 the top portion. Mr. Murray, is this what was filled out to
6 A. There was an argument of whose fault it was, was it DNO's 6 give to the bank to get the official check?
7 problem or was it DJC's problem. I told the guys forget about 7 A. Yes.
8 it, I'll pay it and that's it and we'll move on. Because Joe 8 Q. Can you point out where your official signature is on this?
9 was helping me with a company called Commercial Drywall at that 9 A. Right there.
10 stage. 10 Q. Who filled out the other writing, if you know?
11 Q. We are going to talk about Commercial Drywall a little bit 11 A. My office, my controller in my office.
12 later. In total, how much money was paid to Joseph Olivieri's 12 Q. It's dated January 10, 2005, in the amount of $730,000.
13 company on the Cambridge and Oxford sites, approximately? 13 Let's put Government Exhibit 610 back up, the check, and
14 A. 9 and 3 is 12, so something between a million 250-ish. 14 enlarge the top portion. Mr. Murray, can you please explain to
15 Q. During the time that the work on those sites was going on, 15 the jury, first of all, where did you go to obtain this check?
16 was On Par still operating? 16 A. I went to a bank in Westchester called Tuckahoe Wachovia.
17 A. Oh, yes. 17 Q. What did you do with the check after you obtained it from
18 Q. Can you describe what was going on for On Par at that time 18 the bank?
19 in terms of its job sites? 19 A. I gave it to Joe Olivieri.
20 A. We were doing substantial union subcontracting carpentry 20 Q. Can you explain to the jury how you came to give Joseph
21 work in New York City and the surrounding areas. It was a 21 Olivieri a check for $730,000?
22 decent size company in '05. Not as big as '04, but we did a 22 A. I used to do houses on the side as another industry.
23 lot of work. 23 Q. I'm sorry? I lost that.
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Page 555 Page 557
Q. Were you paying cash to workers on those On Par union A. I used to build houses, single-family homes. This 730,000
2 sites? 2 was given to Joe to go and buy two single-family homes.
A. Yes. Q. Prior to January 10, 2005, can you describe what your
3 MS. ZORNBERG: Your Honor, I just want to let the 3 experience was in purchasing houses?
Court know I'm turning to another subject now. I don't know if A. I used to do about two, three houses a year. I would buy a
4 the Court wants to take the morning break. 4 run-down old house, mostly in Bronxville. That's in
5 THE COURT: Proceed. 5 Westchester, just north of the city. I would clean them up,
6 Q. Mr. Murray, I'm now handing you what's been marked as 6 fix them, and flip them.
7 Government Exhibits 609 and 610. Do you recognize what is 7 Q. When you say you would flip them, what does that mean?
8 depicted in those -- do you recognize those documents? 8 A. I would buy them, renovate them to resell.
9 A. Yes. 9 Q. Did you do those renovations personally?
10 Q. First, starting with Government Exhibit 610, what is it? 10 A. No. My carpenters would do it.
11 A. It's a check for $730,000. 11 Q. From On Par?
12 Q. What is Government Exhibit 609? 12 A. Yes, evenings and weekends and during the week.
13 A. It's a piece of paper you fill out so you can get a 13 Q. How did you pay them for their work on those houses?
14 certified check for $730,000. 14 A. I would pay them cash.
15 Q. Do you recognize your signature on Government Exhibit 609? 15 Q. Describe how you came to give Mr. Olivieri a check for
16 A. Yes. 16 $730,000. What led up to that?
17 MS. ZORNBERG: The government offers 609 and 610. 17 A. We had talked about houses that I was doing and that I had
18 THE COURT: Mr. Gardner? 18 made some money on houses. He had introduced me to a guy who
19 MR. GARDNER: Yes, your Honor, I'm just taking a quick 19 worked for Yonkers sanitation. He would know people in the
20 look. No objection. 20 area, like old ladies, people that needed to sell their homes.
21 THE COURT: Admitted without objection. 21 So a couple of weeks or -- so Joe and the sanitation gentleman
22 (Government's Exhibits 609 and 610 received in 22 found these two houses in Yonkers. I gave Joe 730,000 to buy
23 evidence) 23 those two houses.
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Page 558 Page 560
Q. Mr. Murray, I'm now handing you what have been marked as hundred percent sure. Sometime around that time.
2 Government Exhibits 68 and 69. Do you recognize what is 2 Q. Let me show you now Government Exhibits 74 and 75. I'm now
depicted in those photographs? handing you Government Exhibits 65, 66, 74, and 75. Mr.
3 A. Yes. 3 Murray, you mentioned that you gave Mr. Olivieri this check for
Q. What is it? $730,000 so that he could purchase houses. How many houses did
4 A. These are two houses that I had built, myself and my wife. 4 he purchase?
5 One, 69, is in Bronxville, but it's Yonkers with a Bronxville 5 A. Two houses.
6 PO. The other house is with a Bronxville PO address, just 6 Q. Who found those houses?
7 beside the Major Deegan, on Palmer Road. 7 A. I believe Joe and the sanitation guy.
8 Q. Mr. Murray, you said those are houses that you built. Did 8 Q. Were you involved in picking those houses out?
9 you build them from the ground up? 9 A. I seen the houses, but no, I didn't, no.
10 A. No. I would buy them. We would get an architect who would10 Q. Do you recognize what is depicted in Government Exhibits 74
11 extend the kitchens, air condition them, just bring it up to a 11 and 57?
12 moderate home. 12 A. Yes.
13 Q. You also said "myself and my wife." Who is your wife? 13 Q. What are those photos of?
14 A. My wife is Tracy. 14 A. These are two houses that I bought with Joe, two houses in
15 Q. Just to be clear, what was her role in your business of 15 Yonkers. Montclair is one and Windemere is the second one.
16 flipping houses on the side? 16 MS. ZORNBERG: The government offers Exhibits 74 and
17 A. She's very good with paint colors. She has designed 17 75.
18 kitchens. She would help me in that role. She wouldn't do any 18 MR. GARDNER: No objection.
19 manual labor. We have three children. She would help out when19 THE COURT: Admitted without objection.
20 she was in the mood or had time. 20 (Government's Exhibits 74 and 75 received in evidence)
21 Q. Did you show Joseph Olivieri the houses that are depicted 21 MS. ZORNBERG: Let's put those up on the screen.
22 in Government Exhibits 68 and 69? 22 Q. Government Exhibit 74, this is one of the houses that was
23 A. Yes. 23 bought with the $730,000?
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Page 559 Page 561

MS. ZORNBERG: The government offers 68 and 69. A. Yes.
2 MR. GARDNER: No objection. 2 Q. Does this show the house before or after renovation?
THE COURT: Admitted without objection. A. That's when it's finished, after.
3 (Government's Exhibits 68 and 69 received in evidence) 3 Q. Let's put up Government Exhibit 75. Is that the second
Q. Let's put up Government Exhibit 68. Is this one of the house that was purchased with your $730,000?
4 houses you took Mr. Olivieri to? 4 A. Yes.
5 A. Yes. 5 Q. Were these houses in a location that you would have chosen
6 Q. Let's put up Government Exhibit 69. Is this another house 6 yourself?
7 that you renovated and sold that you showed to Mr. Olivieri? 7 A. I had never bought there before, no.
8 A. Yes. 8 Q. Where were these houses located?
9 Q. What led you to show these houses to Mr. Olivieri? 9 A. In Yonkers. Yonkers is a big area. It's on Central Avenue
10 A. Many reasons. One, to make money. The other reason was to 10 going north, on the left of it. I know where it is, but it's
11 keep Joe my friend or keep him close. 11 not an area that I would be familiar with.
12 Q. How did it benefit you to keep Joseph Olivieri close to 12 MS. ZORNBERG: We can take that down.
13 you? 13 Q. At the time that you gave Mr. Olivieri the check for
14 A. Because whenever I would need him -- On Par was so big, I 14 $730,000 to buy those houses, had you ever had a business
15 needed everybody. I was in a lot of problems. I was being 15 partner before in purchasing houses?
16 subpoenaed by Walter Mack. A lot of problems going on with On 16 A. In houses, no.
17 Par. 17 Q. How long had you known Mr. Olivieri at that point?
18 Q. Let's put Government Exhibit 610 back up. That's the check 18 A. I suppose a year, close to a year.
19 that you handed to Mr. Olivieri. The date is January 10, 2005. 19 Q. How well did you know his sanitation friend?
20 Just to fix a time frame, how much time before you handed Mr. 20 A. I still don't. I didn't. I can't recall his name. I
21 Olivieri this check did you take him to see the houses that you 21 don't.
22 had renovated? 22 Q. Who was supposed to do the renovations on those two Yonkers
23 A. Maybe two, three weeks or a month before. I'm not a 23 houses?
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Page 562 Page 564
A. The sanitation guy. "Between in or about 2004 and 2006, Ms. Bonsignore
2 Q. Explain to the jury what was discussed as to what you would 2 represented Seavrus Real Estate Holdings, Inc., of which Joseph
do for these houses and what Mr. Olivieri and the sanitation Olivieri was president, in connection with real estate
3 worker would do for the houses. 3 transactions involving the purchase, improvement upon, and
MR. GARDNER: Objection, your Honor. resale of two residential properties located at 87 Windemere
4 MS. ZORNBERG: I'll clarify. I'm asking the witness 4 Drive, Yonkers, New York, and 37 Montclair Road, Yonkers, New
5 to describe what conversations he had with Mr. Olivieri about 5 York.
6 what the respective roles were going to be in this investment. 6 "Ms. Bonsignore set up a corporation called Seavrus
7 A. The two sides, that they would find -- Joe would find the 7 Real Estate Holdings strictly for the purpose of conducting
8 houses, which he did, and the sanitation guy would do the 8 transactions involving the Yonkers properties."
9 renovations, get them ready for resale. Then the houses would 9 Ms. Bonsignore notarized Olivieri's signature on the
10 be sold. Then I would get 50 percent of the profits. 10 following documents: Government Exhibits 602 and 603.
11 Q. Did you front all of the money to purchase those houses? 11 Paragraph 4. "Between in or about 2004 and 2006, Ms.
12 A. Yes. 12 Bonsignore maintained an escrow account at The Bank of New
13 Q. When you gave Mr. Olivieri the check for $307,000, did you 13 York. Ms. Bonsignore used this account for deposits and checks
14 have anything in writing saying that he owed you that money? 14 related to Seavrus Real Estate Holdings and the Yonkers
15 A. No. 15 properties."
16 Q. Was it a verbal understanding? 16 Let's go to paragraph 6 for the time being. "In or
17 A. Yes. 17 about 2009 the government served a subpoena on Ms. Bonsignore
18 Q. What was your understanding of when you would get the 18 calling for the production by her of all records of property
19 $730,000 back? 19 transactions relating to Seavrus Real Estate Holdings. In
20 A. When the houses would be renovated and sold. When the 20 response to that subpoena, Ms. Bonsignore informed the
21 houses were sold. 21 government that she had once maintained such records, but that
22 Q. When the houses were purchased, those two Yonkers houses, 22 the records were lost or accidentally destroyed when she moved
23 was your name on the deed? 23 her law office from Yonkers to Scarsdale."
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Page 563 Page 565

A. No. Finally, paragraph 7. "Ms. Bonsignore has never met
2 Q. Was that an ordinary way that you did real estate 2 or spoken to Tracy Murray, but communicated with the lawyers
transactions? for James Murray and/or Tracy Murray concerning the Yonkers
3 A. No. 3 properties."
Q. How was it out of the ordinary? Your Honor, there are two more stipulations, one about
4 A. Usually, always, when I buy a house, I would have an 4 the Yonkers property and one just a custodial stipulation for
5 attorney and we would do a title search. Then, at the closing 5 Ms. Bonsignore's bank records. Those are Government Exhibits
6 the deed would be transferred; you would give over the money 6 803 and 802, which we will offer at this time.
7 and then you would get your deed. 7 Let's put up Government Exhibit 803. Actually, before
8 MS. ZORNBERG: Your Honor, now I'd like to offer in 8 we do that, can we put Government Exhibit 610 back up on the
9 evidence Government Exhibit 508 with another stipulation. I'm 9 screen, the $730,000. And can you enlarge the top portion,
10 sorry. 805. I misspoke. I'm going to read certain paragraphs 10 please.
11 of it. 11 Q. Mr. Murray, the check for 730,000 is addressed to the order
12 Ms. Geier, let's put Government Exhibit 805, the 12 of Michele Marianna Bonsignore. Why is it addressed to her?
13 stipulation, up on the screen. We are going to read paragraphs 13 A. She was Joe's attorney.
14 1 through 4, 6, and 7. Enlarge each paragraph as we get to it. 14 Q. At whose direction did you have the check made out to Ms.
15 Ladies and gentlemen, this is a stipulation that if 15 Bonsignore?
16 Michele Marianna Bonsignore were called to testify, she would 16 A. By Joe's request.
17 testify as follows. 17 Q. Joseph Olivieri requested it?
18 Number 1, Ms. Bonsignore is an attorney. "Ms. 18 A. Yes.
19 Bonsignore is an attorney duly licensed to practice law in the 19 Q. Let's put up now Government Exhibit stipulation 803.
20 State of New York. Her law office was formerly located at 636 20 Starting with paragraph number 1, "Government Exhibit 601 is a
21 Saw Mill River Road in Yonkers, New York. In or about 2005 Ms. 21 public record of the New York State Department of State,
22 Bonsignore moved her law office to 11 Jackson Avenue, 22 Division of Corporations, showing that Seavrus Real Estate
23 Scarsdale, New York. 23 Holdings, Inc. was incorporated on November 23, 2004, in
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Page 566 Page 568
Westchester County." those stipulations.
2 Let's put up Government Exhibit 601 and take a very 2 THE COURT: Admitted with the stipulations.
quick look at that. I would just point out Seavrus Real Estate (Government's Exhibits 802, 803, and 805 received in
3 Holdings, filed on the date November 23, 2004. 3 evidence)
Mr. Murray, the check that you gave Mr. Olivieri was MS. ZORNBERG: Let's put up a few documents. 604A,
4 not long after this; it was January 2005, right? 4 this is a record maintained by The Bank of New York for Ms.
5 A. Yes. 5 Bonsignore's bank account. This is a deposit ticket dated
6 Q. Let's go back to the stipulation, Government Exhibit 803. 6 January 10, 2005, deposit of $730,000 into the account of
7 I'll read the remaining paragraphs. Paragraph 2. "On or about 7 Michele Marianna Bonsignore. The deposit slip says "Murray,
8 January 20, 2005, the residential property located at 87 8 $730,000."
9 Windemere Drive, Yonkers, New York, was sold by the Tota family 9 Now let's put up Government Exhibit 604B. That is
10 to Seavrus Real Estate Holdings for $330,000. On or about 10 another copy of the check that was deposited with the
11 December 16, 2005, this property was resold by Seavrus Real 11 handwritten notation "Attorney escrow account" dated January
12 Estate Holdings to Ralph Tarone Jr. for $550,000. Tarone was 12 10, 2005.
13 represented by the law firm of Kriss Feuerstein & Katz LLP. 13 Q. Mr. Murray, after you gave this $730,000 check to Joseph
14 Mr. Murray, are you a member and partner in Seavrus 14 Olivieri, did there come a time when you became concerned?
15 Real Estate Holdings? 15 A. Yes.
16 A. No. 16 Q. What was your concern?
17 Q. Paragraph 3. "On or about February 18, 2005, the 17 A. That I had given away $730,000. I had no deeds, my money
18 residential property located at 37 Montclair Road, Yonkers, New 18 was gone.
19 York, was sold by the estate of Marie Emmet to Seavrus Real 19 Q. Was $730,000 a significant sum for you at the time?
20 Estate Holdings for $390,000. On or about August 10, 2005, 20 A. That's a lot of money.
21 this property was resold by Seavrus Real Estate Holdings to 21 Q. Did you have anything in writing in January of 2005
22 Mike Woods and Tara Woods (maiden name Kelly) for $517,000." 22 documenting that you had given that money to Mr. Olivieri?
23 Just so everyone is on the same page, let's put back 23 A. No.
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Page 567 Page 569
up Government Exhibit 75. Mr. Murray, is that 37 Montclair one Q. What did you do?
2 of the Yonkers properties that Mr. Olivieri purchased with the 2 A. I went to my attorney and I spoke to my attorney, and we
money you provided? sent a letter to Michele Bonsignore.
3 A. Yes. 3 Q. Who was your attorney at the time?
Q. Government Exhibit 74, let's put that up. Mr. Murray, is A. John Tague.
4 that house the property at 87 Windemere that was purchased with 4 Q. I'm now handing you, Mr. Murray, what's been marked as
5 the $730,000? 5 Government Exhibit 620 for identification. Do you recognize
6 A. Yes. 6 this document?
7 MS. ZORNBERG: Finally, your Honor, at this time the 7 A. Yes.
8 government offers and would like to read Government Exhibit 8 Q. What is it?
9 802, final stipulation for the time being. Why don't we put 9 A. It's a letter that myself and my attorney John Tague
10 that up on the screen so the jurors can follow along. 10 drafted to send to Michele.
11 Starting with paragraph 1. This is a stipulation that 11 Q. Can you explain what your role was in the preparation of
12 "Government Exhibit 604 is a true and correct copy of bank 12 this letter.
13 records maintained in the regular course of business by The 13 A. My role, I wanted to get something just to give me some
14 Bank of New York for an attorney escrow bank account in the 14 comfort zone on my 730,000. So we sent a letter. I asked John
15 name of Michele Marianna Bonsignore, Esq. P.C. and with address 15 to send a nice, gentle letter to Michele to get a promissory
16 636 Saw Mill River Road, Yonkers, New York 10710 (the 16 note from Joe.
17 Bonsignore escrow account). These records include checks and 17 Q. Why did you want the letter to be gentle?
18 deposit slips for the Bonsignore escrow account during the time 18 A. I didn't want to piss Joe off.
19 frame of January 2005 through February 2006." 19 Q. What is the date on the letter?
20 We don't need to go through all of the rest of the 20 A. March 11.
21 stipulation, your Honor. At this time the government does, 21 Q. Of what year?
22 just for the record, offer into evidence Government Exhibits 22 A. Of 2005.
23 802, 803, 805, and all of the exhibits that are referenced in 23 Q. Was the letter sent out?
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Page 570 Page 572
A. Yes. (At the side bar)
2 Q. How do you know was sent out? 2 MS. ZORNBERG: Your Honor, this is the promissory note
A. John told me he sent it. He also copied me with the that we specifically briefed in limine to the Court that the
3 letter. 3 Court ruled on.
Q. Did you have any discussions with Joseph Olivieri after the THE COURT: The issue is, is it stipulated or not
4 letter was sent out? 4 stipulated?
5 A. Yes. Joe said he got the letter and he's working on it. I 5 MR. GARDNER: Not stipulated.
6 said, that's great, don't worry, there's no major rush. I just 6 THE COURT: If it's not stipulated, it comes in as an
7 played it down. 7 admission.
8 MS. ZORNBERG: The government offers Government 8 MS. ZORNBERG: Yes.
9 Exhibit 620. 9 MR. GARDNER: My problem was a foundational problem.
10 MR. GARDNER: Judge, we note an objection to that 10 THE COURT: If it's an admission, it's an admission.
11 letter from the Tague law firm. 11 You don't need a foundation for an admission.
12 THE COURT: Ms. Zornberg? 12 MR. GARDNER: I still think there is a credibility
13 MS. ZORNBERG: Judge, I believe the foundation is 13 issue where some foundational questions still need to be
14 sufficient. Mr. Murray was involved in preparing it and 14 answered. I understand the Court is going to let it in as an
15 recognizes it. 15 admission and now it's in.
16 MR. GARDNER: I don't think any of the traditional 16 Your Honor, in terms of speaking objections, walking
17 foundation questions were asked in terms of keeping it, when it 17 past the jury saying the judge has already admitted it, I ask
18 was made, the basic questions. 18 that she refrain from that.
19 THE COURT: Sustained. 19 MS. ZORNBERG: Sure.
20 MS. ZORNBERG: All right. 20 MR. GARDNER: Judge, you did say that this would come
21 Q. Mr. Murray, as of March 11, 2005, had you received anything21 in as an admission. I want to be clear on that. I don't
22 in writing acknowledging your $730,000 payment? As of when 22 disagree. But as to the foundation of it, I still think they
23 this letter went out, had you received anything in writing? 23 need to lay the foundation for the government.
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Page 571 Page 573
A. I don't understand the question. THE COURT: The government can ask questions of the
2 Q. At the time that you got together with your attorney to 2 witness, as I'm sure they will, as to exactly how this came
prepare a letter to be sent to Mr. Olivieri's lawyer, did you about.
3 have a promissory note yet from Mr. Olivieri? 3 MR. GARDNER: It didn't come from him. He is not
A. No. going to say he kept it in the regular course of business.
4 Q. I'm handing you now what's been marked as Government 4 THE COURT: You don't need that for an admission.
5 Exhibit 602. Do you recognize that document? 5 MR. GARDNER: OK.
6 A. Yes. 6 (Continued on next page)
7 Q. What is it? 7
8 A. It's a promissory note. 8
9 Q. Did you receive this sometime after you and your attorney 9
10 sent the letter to Michele Bonsignore? 10
11 A. Yes. 11
12 MS. ZORNBERG: I think the Court already admitted 12
13 Government Exhibit 602 as part of a stipulation. If not, we 13
14 offer it again. 14
15 THE COURT: Admitted as stipulated. 15
16 MR. GARDNER: Your Honor, I'm sorry, we didn't 16
17 stipulate to the document. 17
18 MS. ZORNBERG: If there is an issue, we can hear it at 18
19 the side bar. 19
20 MR. GARDNER: This isn't part of the stipulation. 20
21 THE COURT: All right. 21
22 (Continued on next page) 22
23 23
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Page 574 Page 576
(In open court) Joseph Olivieri?
2 MS. ZORNBERG: Your Honor, the government offers 2 A. She had no role.
Government Exhibit 602. Q. Did you tell your wife that you were having a promissory
3 THE COURT: Admitted. The objection is noted. 3 note put in her name?
MR. GARDNER: Thank you, Judge. A. No.
4 (Government's Exhibit 602 received in evidence) 4 MS. ZORNBERG: Let's take that down.
5 MS. ZORNBERG: Let's display Government Exhibit 602 on 5 Q. You testified earlier that originally the sanitation worker
6 the screen. Ms. Geier, if you could, enlarge the text on the 6 was supposed to be responsible for renovating the two Yonkers
7 full page. Let me read through it. 7 properties, is that right?
8 It says, "Promissory Note. For value received on the 8 A. That's correct.
9 7th day of February 2005, the undersigned Joseph Olivieri and 9 Q. Was On Par supposed to play any role in those renovations?
10 Seavrus Real Estate Holdings (hereinafter "the promissory") 10 A. No.
11 with offices at 4 Ash Road, Briarcliff Manor, New York 10510, 11 Q. What in fact occurred?
12 jointly and severally, unconditionally promise to pay Tracy 12 A. We started Montclair first. That was the first project.
13 Murray (hereinafter "the promisee") the principal sum of seven 13 The sanitation guy started there. Halfway through that job, he
14 hundred and thirty thousand dollars with interest beginning on 14 just wasn't able to deliver.
15 January 10, 2005, accruing at the rate of 8 percent per annum 15 Q. Wasn't able to deliver?
16 on the unpaid balance until paid in full, both principal and 16 A. To finish the project. He just hadn't got enough people.
17 interest, payable in lawful currency of the United States of 17 Then I jumped in with my group, my carpenters and painters and
18 America and payable at 100 Wrexham Road, Bronxville, New York, 18 tapers, and the electrician was subbed out, and we finished the
19 10708 or at such place as the legal holder hereof may designate 19 site, we finished the JOB.
20 in writing." Then there is some more language. 20 Q. When you say you had your carpenters finish the renovation,
21 Moving down to the bottom of the page, "The principal 21 were those On Par workers?
22 and interest shall be due and payable to promisee at the 22 A. Yes, they worked for On Par.
23 closing of sale of each of the real properties located at 37 23 Q. How were they paid for their work on these two Yonkers
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Montclaire Road, Yonkers, New York, and 87 Windemere Drive, properties that Mr. Olivieri had purchased?
2 Yonkers, New York." 2 A. Cash.
Let's take a look at the third page, the signature Q. Any benefits?
3 page. More legal language on the second page. I will point 3 A. No.
out, "In testimony whereof, the individual promisor has Q. Were any of the carpenters that you sent to work on these
4 hereunto set on the day and the year first above written," 4 properties union members?
5 signed Joseph Olivieri individually and personally, notarized 5 A. Just one, I believe.
6 by Michele Bonsignore, notary public, also signed by Joseph 6 Q. Who paid them?
7 Olivieri as president of Seavrus Real Estate Holdings, 7 A. My office or myself.
8 notarized by Michele M. Bonsignore. 8 Q. How did the rate that you paid them for this renovation
9 I will point out that the stipulation, ladies and 9 work compare to the union rate?
10 gentlemen, that was read earlier, Michele Bonsignore in the 10 A. Major difference. Laborers, carpenter is around $100 an
11 stipulation acknowledged having notarized these signatures. 11 hour. We would pay anywhere from 25 to 35 an hour cash.
12 Q. Let's go back to the first page. Ms. Geier, first, could 12 Q. Eventually were both the Montclair and the Windemere houses
13 you enlarge the very top line, the fax line, on the document, 13 sold?
14 the fax line of March 16, 2005. All right. Let's go back to 14 A. Yes.
15 the text of the document. 15 Q. How, if at all, were the profits tallied?
16 Mr. Murray, the promissory note is addressed to Tracy 16 A. I gave Joe my expenses for my carpenters, whatever
17 Murray. Is that your wife? 17 material. Then he also had his expenses with the sanitation
18 A. Yes. 18 guy and whatever. Then we split the profits.
19 Q. How did the promissory note come to be made out to Tracy 19 Q. Ultimately, did you get back the original $730,000?
20 Murray? 20 A. Yes.
21 A. All houses, any house that I bought, and we bought a lot of 21 Q. Did you make any profit on these houses?
22 houses, would go into my wife's name. 22 A. Yes.
23 Q. What was Tracy Murray's role in this transaction with 23 Q. Let's put up Government Exhibit 604C in evidence, and let's
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Page 578 Page 580
enlarge the top portion. This is a check coming out of Michele A. It's a subpoena.
2 Bonsignore's escrow account dated August 16, 2005, addressed to 2 Q. Who is the subpoena from?
Tracy Murray, in the amount of $390,000. It says it's for A. It's from Walter Mack.
3 Montclair, looks like "Montclair principal payment." 3 Q. Was this subpoena served on On Par?
Let's put up Government Exhibit 604D. This is a check A. Yes.
4 also dated August 16, 2005, on the account of Ms. Bonsignore, 4 MS. ZORNBERG: Your Honor, the government offers
5 to the order of Tracy Murray, for $18,200, and it says 5 Exhibit 281.
6 "Montclair interest." 6 MR. GARDNER: No objection.
7 Mr. Murray, did you see these checks? 7 THE COURT: Admitted without objection.
8 A. Yes. 8 (Government's Exhibit 281 received in evidence)
9 Q. This second check for $18,000, $18,200, what does that 9 MS. ZORNBERG: Your Honor, the government also offers
10 represent? 10 Exhibit 807, which is a stipulation, very brief. We can put it
11 A. The profit of the job. 11 up on the screen. Paragraph 1 stipulates that the subpoena,
12 Q. Even though the note says "Montclair interest," did you 12 Government Exhibit 281, "is a true and correct copy of the
13 receive any separate interest aside from the profit? 13 court-ordered subpoena that was issued by the office of
14 A. No. It was a 50-50 split. 14 independent investigator Walter Mack on On Par construction in
15 Q. That 18,000, does that represent the total that you 15 the civil RICO case captioned United States v. District
16 received on the Montclair house aside from the original house 16 Council, 90 Civ. 5722. The private investigator who served the
17 purchase price? 17 subpoena declared under oath that the subpoena was served on
18 A. The two jobs were combined. It's not fair to say 18,000 -- 18 February 11, 2005, at 12:06 p.m. at On Par's offices located at
19 MS. ZORNBERG: We are going to look at the one for 19 230 Fifth Avenue, Mount Vernon, New York." You can take that
20 Windemere, too. Let's do that now. Let's put up Government 20 down.
21 Exhibit 604D in evidence. I'm sorry. 604E. Let's enlarge the 21 Let's now put up Government Exhibit 281, the subpoena.
22 check portion. This is a check on the account of Ms. 22 Ms. Geier, enlarge the top haft half of the document. There is
23 Bonsignore to Tracy Murray in the amount of $340,000. It says 23 the caption of the civil RICO case. The case number. It says,
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Page 579 Page 581
"Windemere P only." Can we zoom out. Now let's look at "Subpoena in a civil case issued by the United States District
2 Government Exhibit 604F. Please enlarge that, Ms. Geier. This 2 Court, Southern District of New York."
is December 18, 2005, a check from Michele Bonsignore to Tracy Let's zoom out. Can we enlarge the middle portion.
3 Murray for 24,933. It says -- I'm not sure what that says. 3 There are two boxes checked. "You are commanded to appear at
"Interest" possibly "on mortgage." the place, date, and time specified below to testify at the
4 Q. Mr. Murray, earlier, when you said you combined the two for 4 taking of a deposition." It also states, "You are commanded to
5 your profits, what were you talking about? 5 produce and permit inspection and copying of the following
6 A. I got paid back my principal and then like we made 6 documents. See rider A."
7 80-something thousand and it was split in half. So 18 and 24 7 Let's zoom out and enlarge the very bottom portion.
8 is 41, 42,000. 8 Here you will see it is signed by the independent investigator
9 MS. ZORNBERG: Let's take that down. Judge, I'm about 9 February 8, 2005, Walter Mack, independent investigator, so
10 to move to a new area. I don't know if this is a good time for 10 ordered by the United States district judge.
11 a morning break. 11 Let's turn now to the third page. Enlarge that top
12 THE COURT: Continue. 12 half portion. This is the portion that says, "Proof of
13 MS. ZORNBERG: Your Honor, would it be possible to 13 Service. Served February 11, 2005, 12:06 p.m." It says that
14 take a short break for restroom purposes? 14 it was served on Ms. Judy Schonacher, payroll supervisor.
15 THE COURT: In that case, let's take the morning 15 Mr. Murray, do you know who Judy Schonacher is?
16 break. Ten minutes. 16 A. Yes.
17 (Recess) 17 Q. Who is she?
18 THE COURT: Ms. Zornberg. 18 A. She used to be my payroll clerk.
19 MS. ZORNBERG: Thank you, Judge. 19 Q. Was she an On Par employee?
20 Q. Mr. Murray, I'm now handing you what's been marked as 20 A. Yes, for many years.
21 Government Exhibit 281. Do you recognize that document? 21 Q. How did you become aware of this subpoena after it was
22 A. Yes. 22 served?
23 Q. What is it? 23 A. My office called me.
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Page 582 Page 584
Q. How soon after it was served at 12:06 p.m. on February 11th Riverdale.
2 were you contacted? 2 Q. Was Mr. Olivieri's company still performing work on the
A. 12:07, very soon. Cambridge site at that point?
3 Q. This also subpoenaed you to produce records, correct? 3 A. Yes.
A. Yes. Q. Can you describe your conversation with Mr. Olivieri about
4 Q. Let's look at the second page of the subpoena, which lists 4 the subpoena.
5 the records. Let's enlarge that. On Par was required to 5 A. I showed him the subpoena and I asked him did he have an
6 produce records, and then it lists seven job sites: 600 6 attorney. He gave me his attorney's telephone number.
7 Washington street, 90 Washington Street, 63 Wall Street, Times 7 Q. What attorney was that?
8 Square Tower, Jewish Heritage Tower, 35 West 33rd Street, and 8 A. Her name was Michele Bonsignore.
9 the San Carlos Hotel. Were those all On Par job sites? 9 Q. Prior to this time when you were meeting with Mr. Olivieri
10 A. Yes. 10 about the Walter Mack subpoena, had you and Joseph Olivieri
11 Q. Were those all job sites on which you had been paying cash 11 discussed Walter Mack?
12 to carpenters? 12 A. Yes. There was one time we had a conversation, there was a
13 A. Yes. 13 company called Tri-Built Construction Company.
14 Q. And avoiding benefit payments? 14 Q. I'm sorry, Tri-Built?
15 A. Yes. 15 A. Tri-Built Construction. They were, like myself, paying
16 Q. What was your reaction responsible receiving this subpoena?16 cash, and they got in trouble. And they had cooperated with
17 A. "Oh, shit." 17 Walter Mack and had given testimony about a guy John Mangione.
18 Q. Even before you received this subpoena in February of 2005,18 In the conversation, Joe had told me that Tri-Built had given
19 did you know who Walter Mack was? 19 up John Mangione. We always talked about it. Everywhere I
20 A. Yes. 20 went, Mack's name was coming up.
21 Q. Tell us what you knew about him up to that point. 21 Q. Did you have any dealings with John Mangione?
22 A. The carpenter industry was a lot of Irish contractors. We 22 A. In the early and mid '90s, yes.
23 were very close. We always interworked. We shared manpower. 23 Q. What did John Mangione do for you?
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Page 583 Page 585

We knew each other. Walter Mack was often having -- he spent A. We used to take the sheets out of the benefit funds. The
2 many months and a long time with a company called Boom 2 shop stewards would hand in the sheets, and he would return the
Construction. He had done surveillance at a check cashing sheets to me, and I would pay him for the sheets that was
3 business, setting traps. It was the talk of the bars. 3 returned.
Q. You said it was the talk of the bars? Q. Wait. When you say sheets, are you referring to shop
4 A. Yes. 4 steward reports?
5 Q. So even before you were served with the subpoena, did you 5 A. Yes.
6 have concern about Walter Mack's investigation into union 6 Q. Did John Mangione help you in the 1990's remove shop
7 contractors? 7 steward reports from the benefit fund's files?
8 A. Yes, very much so. 8 A. Yes.
9 Q. After you received the subpoena, what did you do? 9 MR. GARDNER: Objection, your Honor.
10 A. I called Finbar and I called Joe. 10 THE COURT: Rephrase the question. Leading.
11 Q. Finbar is Finbar O'Neill? 11 MS. ZORNBERG: I was just seeking to clarify. I'll
12 A. Yes. 12 rephrase it.
13 Q. Joe is Joseph Olivieri? 13 THE COURT: All right.
14 A. Yes. 14 Q. How did John Mangione help On Par remove -- how did John
15 Q. For what reason did you call those two individuals? 15 Mangione help On Par in furtherance of its scheme to defraud
16 A. I needed to hire an attorney, so I was looking for advice 16 the benefit funds?
17 on how was I to handle the subpoena, my first subpoena. I met 17 MR. GARDNER: Objection, your Honor.
18 with Finbar, and I also met with Joe. 18 THE COURT: Overruled.
19 Q. How soon after receiving the subpoena did you meet with 19 A. The sheets were being handed in to the district council,
20 Joseph Olivieri? 20 and John would hand them back to me.
21 A. Within a week. 21 Q. How did it help On Par if John Mangione brought you back
22 Q. Where did you meet him? 22 the shop steward reports?
23 A. I met him across the road from the Cambridge site in 23 A. I didn't have to pay benefits on the workers.
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Page 586 Page 588
Q. Was it your understanding that Tri-Built had done the same documents to Walter Mack. What, if anything, did you do to
2 thing? 2 respond to that portion of the subpoena?
A. Yes. A. I got a lot of boxes and files and photocopies and brought
3 Q. You mentioned that the Tri-Built guys had cooperated with 3 them down to Walter Mack.
Walter Mack and given up John Mangione? Q. Were the records that you collected for Walter Mack
4 A. I don't know if they gave up. They testified to Walter 4 complete or incomplete?
5 Mack. I don't know what happened. 5 A. Incomplete.
6 Q. Can you describe both in tone and in substance what Joseph 6 Q. How were they incomplete?
7 Olivieri had to say about the Tri-Built guys? 7 A. I just gave them the payroll that we would use for the
8 MR. GARDNER: Objection, your Honor. 8 union auditors or workman's comp to do an audit. I didn't give
9 THE COURT: Overruled. 9 the second set of books.
10 A. We were on the street and we were talking, and he just kind 10 Q. Did there come a time when you were deposed by Walter Mack?
11 of -- it was like these guys rolled, they just cooperated, and 11 A. Yes.
12 he was kind of maybe upset or maybe P'd off. 12 Q. Where did that deposition take place?
13 Q. Just to be clear, was he P'd off at the contractor who 13 A. In Walter Mack's office downtown.
14 cooperated or at John Mangione for taking shop steward reports?14 Q. In Manhattan?
15 MR. GARDNER: Objection, your Honor. 15 A. Yes.
16 THE COURT: Sustained. 16 Q. Can you describe Mr. Mack's office?
17 Q. Can you clarify what Mr. Olivieri was PO'd about? 17 A. Just an oval table with windows and a glass wall behind
18 MR. GARDNER: Objection, your Honor. 18 you.
19 THE COURT: Overruled. 19 Q. Were other people there?
20 A. That Tri-Built had cooperated with Walter Mack. 20 A. Yes.
21 Q. Let's return now to your meeting with Mr. Olivieri about 21 Q. Who do you remember being there?
22 the Mack subpoena. 22 A. Walter Mack and his private investigator, some Polish guy,
23 MS. ZORNBERG: We can take that down, Ms. Geier. 23 somebody from the U.S. government, Steve Kassarda from the
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Page 587 Page 589

Q. After you met with Mr. Olivieri, did you in fact go to see district council, myself, and Mark DeMarco.
2 Michele Bonsignore, the lawyer he referred you to? 2 Q. Mark DeMarco was your attorney?
A. Yes. A. Yes.
3 Q. Where did you meet with Ms. Bonsignore? 3 Q. At the deposition were you asked a number of questions?
A. In Yonkers, I believe, on the Saw Mill River Road. A. No.
4 Q. Approximately how long after getting the subpoena did you 4 Q. What did you do at the deposition?
5 meet with her? 5 A. I listened. Then I took the Fifth amendment right.
6 A. Couple of weeks. 6 Q. You took the Fifth amendment in response to questions about
7 Q. How was that appointment set up? 7 your conduct?
8 A. Joe gave me her telephone number. I made a call and I went 8 A. Yes.
9 to see her. 9 Q. Turn back now to Government Exhibit 807, which is the
10 MS. ZORNBERG: Your Honor, I would like to read the 10 stipulation.
11 one paragraph of stipulation 805 that we did not read earlier. 11 MS. ZORNBERG: If you could put up paragraph 2, Ms.
12 Let's put it back up on the screen. It's paragraph 5. This is 12 Geier, which says, "Government Exhibit 282 is a true and
13 a stipulation that if Ms. Bonsignore would testify, she would 13 correct transcript of the deposition taken of Jim Murray by
14 testify that in early 2005 James Murray came to Ms. 14 independent investigator Walter Mack on March 10, 2005."
15 Bonsignore's office to consult with her regarding a subpoena On 15 The government offers Exhibit 282.
16 Par had received from Walter Mack. During the meeting, Mr. 16 THE COURT: Mr. Gardner?
17 Murray showed her the subpoena. He subsequently retained other 17 MR. GARDNER: Other than relevancy, your Honor, no
18 counsel. 18 objection.
19 We can take that down. 19 THE COURT: Admitted without objection and the comment
20 Q. Who did you retain to represent you in connection with the 20 noted.
21 subpoena? 21 (Government's Exhibit 282 received in evidence)
22 A. The guy that Finbarr O'Neill had recommended, Mark DeMarco. 22 Q. Let's put up the first page of Government Exhibit 282. I
23 Q. The subpoena we saw also called for On Par to produce 23 want to point out the case caption in the civil RICO case, the
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Page 590 Page 592
1 0aproli2 Murray - direct 1 0AP9OLI3 Murray - direct
deposition of Jim Murray on Thursday, March 10, 2005. Mr. Q. He was the head of the district council?
2 Murray, was there a court reporter present at your deposition? 2 A. Yes.
A. Yes. Q. How was it communicated back to you that On Par was not
3 Q. Similar to the individual here today? 3 going to be shut down that day?
A. He didn't cough as much. A. Joe called me.
4 Q. Let's put page 2 up of your deposition. We are not going 4 Q. Joe Olivieri?
5 to go through it. Just to establish the time. It indicates 5 A. Yes.
6 that the deposition started at 10:45 a.m., was held at the 6 Q. Was that significant to you?
7 offices of Doar, Rieck & Mack. Let's turn now to page 51, 7 A. It was everything. I mean if I was shut down I was
8 which is the last page. It concludes, and the time noted that 8 bankrupt.
9 the deposition ended was at 10:40 -- I'm sorry, I misspoke -- 9 Q. Do you recall what your cellphone number was at the time?
10 11:40 a.m. We can take that down now. 10 A. 497-0336.
11 Mr. Murray, after the court reporter stopped taking 11 Q. What area code?
12 down notes and the deposition ended, did you have any further 12 A. Area code 917.
13 communications with Mr. Mack or others? 13 Q. And were On Par's jobs, in fact, shut down in March, 2005?
14 A. Yes. 14 A. No.
15 Q. Can you please describe to the jury what happened. 15 Q. Was this the first time in your relationship with
16 MR. GARDNER: Objection, your Honor. 16 Mr. Olivieri that you asked him to do something to help On Par?
18 A. We stepped out into the lobby, where the elevators come up,18 Q. I just want to pause for a moment. On last Thursday you
19 and Steve from the district counsel, representing district 19 mentioned to the jury that there were times when On Par was
20 council, he was given an order to close On Par down, shut me 20 audited by the benefit funds, that you showed them one set of
21 down there and then that day. 21 books during those audits.
22 Q. What was your understanding of who gave that order? 22 Do you remember that?
23 A. Walter Mack. 23 A. Say that again.
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Page 591 Page 593
1 0aproli2 Murray - direct 1 0AP9OLI3 Murray - direct
Q. What did you do at that point? Q. I'm sorry. I just want -- I want to turn back for a moment
2 A. I called Joe Olivieri right away. 2 to the question of audits of On Par by the benefit funds.
Q. Can you describe your communication with Mr. Olivieri. Prior to March 2005 when you're dealing with Mack
3 A. I told him that I was shut down. He says give him a few 3 subpoena and deposition, had On Par ever been audited by the
minutes or give me a couple of minutes. He called Mike Forde, benefit funds?
4 and he called Gary Rothman, who worked for the council. I 4 A. Yes.
5 think within a half hour, something of a half hour, I got word 5 Q. What did you do during those audits?
6 back that I wasn't being closed down. 6 A. You give your files to the auditors and then they would
7 Q. Just to reorient after last Thursday, during this period of 7 make an assumption of how much money I had defrauded the
8 time were you making cash payments to Michael Forde? 8 benefit funds. And one time we had an arbitration and -- there
9 A. Yes. 9 was two times -- excuse me. And you go down and you sit in the
10 (Continued on next page) 10 room with the district council carpenters, the attorneys.
11 11 Steve Kassarda, he was one time.
12 12 And you haggle. And you fight. And you come to a
13 13 settlement. And then you pay that settlement.
14 14 Q. You said that you recalled two audits of On Par prior to
15 15 March of 2005. Was Mr. Olivieri involved in either of those
16 16 audits?
17 17 A. No.
18 18 Q. Did you seek his help with either of those audits?
19 19 A. No.
20 20 Q. Let me show you Government Exhibit 261. And it's already
21 21 in evidence.
22 22 MS. ZORNBERG: Ms. Geier, let's just put up the first
23 23 page of Government Exhibit 261.
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Page 594 Page 596
Do you recognize that letter? MR. GARDNER: Your Honor, can we have a --
2 A. Yes. 2 THE COURT: We don't need a sidebar.
Q. Have you seen it before? MR. GARDNER: Many times.
3 A. Yes. 3 THE COURT: Asked and answered.
MS. ZORNBERG: Ms. Geier, let's enlarge the top MS. ZORNBERG: All right. We can take that down.
4 portion just to get in the first substantive paragraph and the 4 Q. I want to come back now to Commercial Drywall which is a
5 top. 5 company that you mentioned earlier this morning.
6 So this is a letter. It's dated March 24, 2004. From 6 Did there come a time when you spoke to Joseph
7 the district council of carpenters benefit funds. Stuart 7 Olivieri about finding a company you could buy?
8 GraBola, executive director. Addressed to On Par Contracting 8 A. Yes.
9 Corp. Delinquency and fringe benefit contributions for the 9 Q. What was the timeframe, approximately, of when you
10 period January 1, 2002 through September 30, 2003. 10 discussed that with Mr. Olivieri?
11 And it says: Dear sir or madam: Enclosed are the 11 A. Just after my being deposed by Walter Mack.
12 results of the audit of the books and records of the 12 Q. Can you explain to the jury why you needed to find another
13 above-named company for the period indicated. 13 company to buy?
14 And it goes on to say the enclosed audit report 14 A. Well I knew Walter was going to find my second set of books
15 indicates a delinquency in fringe benefit contributions in the 15 on my -- Walter had an old statement --
16 amount of $271,228.13. 16 Q. I'm sorry. I didn't hear.
17 Do you remember this audit? 17 A. Walter Mack used to always say it's very easy to find --
18 A. Yes. 18 guys like us, all you do is follow the money. So I knew that
19 Q. How did you handle it? 19 he was going to find my second set of books and my accounts,
20 A. I'm almost positive that I paid around $120,000 on the 20 that he was going to find these accounts.
21 audit. 21 So I asked Joe one day about getting another company
22 Q. So it was settled? 22 signed up with the drywall association.
23 A. Yes. 23 And he had told me that I would have to -- We'd have
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Page 595 Page 597
Q. Did you handle it personally? to have a company that would be in standing. You just can't
2 A. Yes. 2 join the association just with a brand new company.
Q. Now, just to be clear, the audit that found a delinquency So then I asked him would he know anyone. And to my
3 of 271,000 and change, if you had given the benefit funds your 3 surprise, he came back in a couple of weeks with Commercial
full records, both sets of records, all sets of records, would Drywall.
4 that number have been larger? 4 Q. Let me just go over that and ask a few follow-up questions.
5 A. Yes. 5 First of all, how did you intend to use a new company?
6 Q. Now, I want to just direct your attention to the stationery 6 A. Well I had contracts with major GCs, general contractors in
7 head where it lists trustees. 7 New York. And I had to finish my jobs. So if the district
8 Do you see Joseph Olivieri's name listed as a trustee? 8 council shut my company On Par down, I would then be terminated
9 A. Yeah, the bottom right. 9 from the job. So I needed someone -- I needed a backup plan.
10 Q. Is that something you had noticed before? 10 So why I needed a backup plan was to hire -- to find a company
11 MR. GARDNER: Objection, your Honor. 11 that I could move -- that I could move my men over to.
12 THE COURT: Overruled. 12 Q. And when you say move your men, you wanted to transfer the
13 THE WITNESS: Yes. Many times. 13 work to a second company?
14 Q. Was this the only letter of this kind on this type of 14 A. Transfer On Par workers into a second company.
15 stationery that you received while running On Par? 15 Q. Did you discuss with Mr. Olivieri your reasons for wanting
16 A. No. You get many letters like this. 16 to find a new company?
17 Q. So by March 24, 2004 did you know that Mr. Olivieri was a 17 A. We talked about it.
18 trustee of the benefit funds? 18 Q. Now, you mentioned that you needed a company that was in
19 MR. GARDNER: Objection, your Honor. 19 standing with the drywall association. First of all, when you
20 THE COURT: Asked and answered. 20 say drywall association, is that the same as the Wall & Ceiling
21 MS. ZORNBERG: I'm sorry? 21 Association?
22 THE COURT: Asked and answered. 22 A. Yes.
23 MS. ZORNBERG: I don't believe it was, your Honor. 23 Q. Can you explain why you needed to find a company that
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Page 598 Page 600
belonged to the Wall & Ceiling Association? company that I could transfer all my workers to.
2 A. Well, if any of the jury or yourself signed an agreement 2 Q. Was Mr. Olivieri present for the meeting?
with the carpenters, you have -- the agreement would be 50/50. A. Yes.
3 So you're allowed to use 50 percent of your carpenters and 3 Q. What, if anything, had been decided upon when the meeting
50 percent from the union. But when you're a member of the ended?
4 association, you can hire through the request system, if they 4 A. Me and Larry exchanged telephone numbers and we met very
5 work for you for three days you laid them off and then you can 5 soon in the next few days.
6 request them. 6 Q. I just want to take stock. You said this was -- how soon
7 So, in a very short period you could have roughly 7 after the getting the Walter Mack subpoena, approximately, did
8 everybody but the shop steward. And that -- you can control 8 you meet with Larry Cooley and Joseph Olivieri at the IHOP?
9 the job. 9 A. The subpoena or my deposition?
10 Q. So you wanted another company in the Wall & Ceiling 10 Q. Whatever is a frame of reference for you.
11 Association so you could use the request system? 11 A. Well it was after my deposition. Within a month at the
12 A. Correct. 12 most of being deposed by Walter Mack.
13 Q. Was the plan for you to run the second company in your own 13 Q. The deposition we saw was March 11, 2005. So you think
14 name? 14 within approximately April 2005?
15 A. No, I couldn't. 15 A. Yes. That's fair to say.
16 Q. Why not? 16 Q. At that time, as of April 2005, how much money did
17 A. Because then -- it wouldn't work because they'd shut 17 Mr. Olivieri owe you?
18 down -- my name was On Par. And On Par and Jim Murray had the 18 MR. GARDNER: Objection, your Honor.
19 problems. So I needed a company with a different name, a 19 THE COURT: Overruled.
20 different entity, and just totally different from me. 20 THE WITNESS: For the house money, 730,000.
21 Q. You mentioned that Joseph Olivieri called you back with the 21 Q. And as of April 2005 was Mr. Olivieri still receiving
22 company Commercial Drywall correct? 22 payments for the Cambridge and Oxford property excavation work?
23 A. Correct. 23 A. Yes.
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Page 599 Page 601

Q. Who owned Commercial Drywall at this time? Q. Ultimately was an agreement reached between yourself and
2 A. A man called Larry Cooley. 2 Mr. Cooley with respect to Commercial Drywall?
Q. Did you know Larry Cooley? A. Yes.
3 A. No. 3 Q. Was that agreement written or oral?
Q. When did you first meet Larry Cooley? A. Oral.
4 A. I met him the first time in Long Island, close to Joe's 4 Q. Under the agreement, what were you to do for Larry Cooley?
5 office, in IHOP, pancake place, on -- I forget the street. 5 A. Buy him a new car. Had to pay -- he had a -- I think -- I
6 Q. How did that meeting come to be set up at the IHOP? 6 forget the number but he had owed taxes. His taxes were many
7 A. Joe set it up for me and Larry. 7 years behind. I had to -- me and my accountant and his
8 Q. Was this the first time you met Larry Cooley? 8 accountant met in Long Island and I paid those taxes. And then
9 A. That was my first time, yes. 9 I paid him a week's wages.
10 Q. What happened during that meeting at the IHOP? 10 Q. I'm sorry. You paid him?
11 A. Joe introduced us and we talked about Larry had a lot of 11 A. A week's wages.
12 history in the drywall industry. He knew everything; that 12 Q. What's a week's wages?
13 later had some sins. Larry used to pay cash. He had a lot of 13 A. You get paid for working, like every week you get a check.
14 comments. So he talked about that. 14 It didn't always happen that he got a check but he got a check
15 Q. When you say Larry had sins and used to pay cash, was that15 most weeks.
16 something that was discussed at the IHOP? 16 Q. Now under your agreement with Mr. Cooley, what was
17 MR. GARDNER: Objection, your Honor. 17 Mr. Cooley to do for you?
18 THE WITNESS: No. No. Larry and me had discussed 18 A. Well he was going to let me use his company. And I moved
19 that at a different time. 19 On Par's men to Commercial Drywall. And he represented if
20 THE COURT: Sustained. 20 there was a problem with business agents or if we had to be
21 Q. What else was discussed at the IHOP meeting? 21 represented, represented with a union problem, Larry would
22 A. That I was looking for a company. That I was in trouble. 22 represent us.
23 On Par was in trouble. Walter Mack. That I was looking for a 23 Q. Did you publicize to the union that On Par's jobs were
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Page 602 Page 604
being transferred to Commercial Drywall? A. Yes.
2 A. I did not. 2 Q. And then there's a personal affidavit of confession of
Q. Why not? judgment. Did you sign that as well?
3 A. Because then they would put the two companies under the one 3 A. Yes.
umbrella. Q. And let's just turn back to the first page, if you could.
4 Q. What did you do, if anything, to avoid your personal 4 A. Yes.
5 involvement in Commercial Drywall from becoming known? 5 MS. ZORNBERG: Ms. Geier, could you enlarge the first
6 A. Well I also hired another man named Shawn Moran. He -- he 6 top paragraph of the payment plan.
7 done the day-to-day operations. He went, hired and fired. And 7 Q. It says that this payment plan was executed on July 28,
8 he went to the job sites and took care of the day-to-day 8 2005 between the benefit funds and On Par.
9 operations. 9 Is this a payment plan that you entered into with the
10 Q. After you reached your agreement with Mr. Cooley, who, in 10 benefit finds?
11 fact, controlled Commercial Drywall? 11 A. Yes.
12 A. I controlled Commercial Drywall. 12 Q. How much did you have to pay under this payment plan?
13 Q. Now, on the commercial -- the Commercial Drywall employees, 13 A. 750,000.
14 how were they paid? 14 Q. For what reason did you enter into this payment plan?
15 A. Check and benefit. 15 A. So the carpenters wouldn't close On Par Construction.
16 Q. Correct? Union wages and benefits? 16 Q. By entering this payment plan, did you keep On Par open?
17 A. Yes. 17 A. Yes.
18 Q. For what reason did you want the Commercial Drywall 18 Q. Now, can you -- just to orient us on the date. As of the
19 carpenters paid correctly once those jobs were transferred 19 time you entered this payment plan in July of 2005, what was
20 over? 20 the state of your efforts to transfer On Par's jobs to
21 A. I wanted to be able to finish my contracts with the GCs and 21 Commercial Drywall?
22 I didn't want to -- I didn't want to be shut down. 22 A. We would be really in the middle of trying to move over the
23 Q. Did it eventually become known to the union that Commercial 23 jobs. You just couldn't move the mass of contracts and jobs at
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Page 603 Page 605
Drywall had taken over for On Par? that speed. It just took -- took a long time.
2 A. Yes. 2 Q. Logistically what did you have to do to transfer the jobs
Q. Do you know how that became known? from On Par to the Commercial?
3 A. Everybody knew. It's a very small industry. 3 A. You had to go to the GCs. You had to go to the owners. I
Q. Now, let me show you Government Exhibit 262 in evidence. was doing apartment buildings. So you had to go to the
4 MS. ZORNBERG: Ms. Geier, you can put that up. It's 4 architects. You had to go -- then the next problem was your
5 already in evidence. 5 employees, the workmen. I had to give them confidence that
6 Q. Do you recognize this document, Mr. Murray? 6 this was just a formality and I just bought a new company and
7 A. Yes. 7 there was bigger plans.
8 Q. What is it? 8 Q. Did you have any discussions with Joseph Olivieri about
9 A. It's a payment plan. 9 this $750,000 payment plan agreement?
10 Q. Is this -- let's turn to the signature pages. Do you see 10 A. Yes.
11 your signature in this payment plan? 11 Q. What did he tell you?
12 A. Yes. 12 A. There was many discussions. But at the end Joe said it was
13 Q. And -- 13 approved.
14 MS. ZORNBERG: And Ms. Geier if you look at pages 14 Q. As of July 2005 how much money did Mr. Olivieri owe you in
15 nine -- 15 connection with the Yonkers properties?
16 Q. Do you see your signature, Mr. Murray, on page nine? 16 MR. GARDNER: Objection, your Honor.
17 A. Yes. 17 THE COURT: Overruled.
18 Q. And how about also on page ten? 18 THE WITNESS: The 730,000.
19 A. Yes. 19 Q. And so the payment plan is July 28 '05. Let's just briefly
20 Q. And then there's an affidavit? 20 put back up Government Exhibit 130.
21 MS. ZORNBERG: Next page, Ms. Geier. 21 This is the agreement on Oxford for DNO did the
22 Q. There's an affidavit of confession of judgment. Did you 22 excavation work. That's dated July 6, 2005.
23 sign that too? 23 Let's put up Government Exhibit 131 briefly.
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Were there payments going on to DNO for the Oxford There was lots of -- you know Commercial was going on,
2 site in July 2005? 2 Cambridge, Oxford, Mack was -- I don't -- I don't remember the
A. Yes. whole conversation of those meetings.
3 Q. And let's put up Government Exhibit 111. Were there also 3 Q. We can take those down.
payments continuing to DNO in connection with the Cambridge What percentage of On Par's work ultimately was
4 site at this time? 4 transferred to Commercial Drywall?
5 A. Yes. 5 A. Union work?
6 Q. Including the $15,000 check for the backfill that we 6 Q. Yes.
7 discussed earlier, right? 7 A. A hundred percent of union work. All the union work was
8 A. Yes. 8 shifted to Commercial Drywall.
9 MS. ZORNBERG: Okay. Take that down. 9 Q. Well, when you say -- let me put it this way. When you say
10 Q. Mr. Murray, I'm now handing you what's been marked as 10 union work, do you mean correctly-paid union work?
11 Government Exhibits 67A and 67B. Do you recognize what's 11 A. Yes.
12 depicted in those photographs? 12 Q. What percentage of On Par's work total was transferred to
13 A. Yes. 13 Commercial, whether it was paid correctly or incorrectly?
14 Q. What area is shown in those photographs? 14 A. Seventy, 75 percent.
15 A. It's in Bronxville. It's a diner and a park from the 15 Q. As to the remaining 25 to 30 percent, what company
16 Bronxville train station in Westchester. 16 completed that?
17 Q. Did you meet with Mr. Olivieri at that location? 17 A. On Par.
18 A. Yeah, a few times. 18 Q. Was On Par still defrauding the benefit funds in any way at
19 MS. ZORNBERG: The government offers Exhibit 67A and19 this time?
20 B. 20 A. Yes.
21 MR. GARDNER: We object, your Honor. 21 Q. This was after you entered into the payment plan?
23 (Government's Exhibits 67A and B received in evidence) 23 Q. How was On Par continuing to defraud the funds?
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Page 607 Page 609
Q. Mr. Murray, do you still have the pointer there? A. Wasn't paying the correct scale.
2 A. Yes. 2 Q. So, did you have On Par workers and Commercial Drywall
MS. ZORNBERG: Ms. Geier, can you put up Government workers on the same site?
3 Exhibit 67A. 3 A. Yes.
Q. So Mr. Murray, what are we looking at in this photograph? Q. Can you give an example to the jury or explain how that
4 A. Just right there is the diner. 4 worked.
5 Q. Is this the station park building, is that the Bronxville 5 A. Well we were doing the job on Sloan-Kettering. It's a
6 train station? 6 hospital up on the East Side of Manhattan. And there was many
7 A. No. 7 contractors there. It was a very -- their shop steward just
8 Q. No? What is it? 8 took the reports for Commercial. No one really knew -- no one
9 A. It's just an office building but it's called a station park 9 reported the On Par employees. So, there could be 20
10 building. It's where we are, roughly where the train station 10 Commercial employees getting benefits. You know, full scale.
11 is, just across the road. 11 And there may be ten of On Par getting cash.
12 Q. Can you point out where you met with Mr. Olivieri in 2005. 12 Q. I'd like to switch gears now.
13 A. Just underneath those umbrellas. 13 Did there come a time when Mr. Olivieri approached you
14 MS. ZORNBERG: Let's put up Government Exhibit 67B. 14 about an investment in a hydrogen lab?
15 Q. Is this another view that shows the park you mentioned? 15 A. Yes.
16 A. Yeah. 16 Q. When was that?
17 Q. Did you ever meet with Mr. Olivieri in the park? 17 A. I believe the autumn of -- late summer, autumn of '05.
18 A. Yes. 18 Q. What was the potential investment?
19 Q. Can you show where. 19 A. There was this Indian man that invented getting effluent or
20 A. On the bench. 20 waste and putting it into a tank and gases were coming out and
21 Q. What types of matters did you meet at this location with 21 there was a blue flame. He had a prototype in Queens.
22 Mr. Olivieri to discuss? 22 Q. Let me just break there for a moment. First of all, how
23 A. I really don't know. There was lots of conversations. 23 did you first come to learn about this new hydrogen technology?
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A. Joe, Martin Turner, and myself, and I can't think of the So, actually if you zoom out -- well at the very
2 Indian gentleman, we met in Queens, and we took a look at his 2 bottom it says American Express. It's an American Express
prototype. statement.
3 Q. Who first approached you about this possible investment? 3 Q. Mr. Murray was this your credit card statement from
A. Joe. American Express?
4 Q. Joe Olivieri? 4 A. Yes.
5 A. Yes. 5 Q. And in the top left it says Jim Murray, On Par Contracting.
6 Q. And what did Mr. Olivieri tell you about his role in the 6 And it says it's for the period ending December 24, 2005.
7 investment or in the technology? 7 MS. ZORNBERG: Ms. Geier, let's turn to the fourth
8 A. That he was a partner with the gentleman and this was the 8 page of the document. Could we enlarge the top third.
9 wave of the future and the prototype works, with a blue flame. 9 Q. Mr. Murray do you have that page with the charges for
10 Q. Just if you could, just pull yourself a little closer to 10 November 23, 2005?
11 the microphone, make sure everyone can hear you. 11 A. Yes.
12 Was anyone else involved in these discussions? 12 Q. What were those charges for?
13 A. Yeah, Martin Turner. 13 A. It was for a rental car and it was for dinner or lunch --
14 Q. Who was he? 14 well it was dinner, it was evening time, at a little cafe on
15 A. He was a project manager, site super in Riverdale, in 15 the beach.
16 Cambridge, and he got to know Joe. And we all -- Martin is an 16 Q. Were these expenses from your trip to California relating
17 educated guy from the University of Belfast in Northern 17 to the hydrogen lab investment?
18 Ireland. And he was really interested in this. 18 A. Yes.
19 Q. Were you being solicited as a potential investor? 19 Q. Ultimately -- and that was dated -- those charges were
20 A. Yes. 20 November of 2005.
21 Q. And you mentioned that you went to a plant in Queens? 21 Ultimately, did you invest in the hydrogen lab?
22 A. We went to a warehouse in Queens that a prototype was, a 22 A. No.
23 working prototype was displayed. 23 Q. Why not?
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Q. Who went to that Queens location? A. It was just too complicated for me. It wasn't for me.
2 A. Martin Turner, Joe Olivieri, myself, and the Indian 2 Q. Turning gears again. You mentioned on Thursday that you
gentleman. owned a farm?
3 Q. Did you have any other meetings where you were solicited to 3 A. Yes.
invest in this prototype? Q. Generally speaking where was that farm located?
4 A. Yes. We went to California once. 4 A. It's 90 miles north of New York City.
5 Q. Who is we? 5 Q. Did there come a time when Joseph Olivieri visited your
6 A. Martin Turner, myself. We met with the English gentleman. 6 farm?
7 And I don't know -- I'm not a hundred percent sure if Joe was 7 A. Yes.
8 with us in California. Something is telling me he was, then 8 Q. Was he by himself or with others?
9 there's something telling me he wasn't. So I don't want to -- 9 A. He was with another gentleman.
10 Q. Did Mr. Olivieri know you were going to California? 10 Q. Who was that?
11 A. Yes. 11 A. His name was Kenny or Kenneth.
12 Q. Let me show you Government Exhibit 283. 12 Q. And what were you told about the relationship between
13 Mr. Murray, do you recognize Government Exhibit 283? 13 Kenneth and Joseph Olivieri?
14 A. Yes. 14 A. I believe Kenneth took all the debris. He's -- they have a
15 Q. What is it? 15 recycling. They have a carting company for construction
16 A. It's my credit card statement. 16 debris.
17 MS. ZORNBERG: Your Honor, the government offers 17 So they took all the stuff and all the debris from the
18 Exhibit 283. 18 excavation in Riverdale to his plant.
19 MR. GARDNER: I object, your Honor. 19 And I believe Kenneth's daughter -- Joe's daughter is
20 THE COURT: Admitted. Objection is noted. 20 married to Kenneth's son.
21 (Government's Exhibit 283 received in evidence) 21 Q. Can you explain why you traveled to the farm with Kenneth
22 MS. ZORNBERG: Ms. Geier, let's put up Government 22 and Joseph Olivieri?
23 Exhibit 283 and just enlarge the top portion. 23 A. On the farm there's a gravel bank, a substantial gravel
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Page 614 Page 616
bank. And it's for roads and for septics. And came up to take MR. GARDNER: Objection.
2 samples. We took samples. 2 THE COURT: Overruled.
Q. Now you mentioned that Kenneth was in debris. Did he have THE WITNESS: One afternoon I went to Long Island and
3 a work location or a plant? 3 met Larry Cooley at a Dunkin Donuts. Larry is a tall man.
A. In upstate. In Peekskill I believe is the address. Up He's got gray hair. He had gray hair. Very tall. And I had a
4 nine. Off the Hudson River. 4 little car. And he got into the passenger's seat. And he
5 Q. Have you ever visited that Peekskill plant? 5 shoved back the chair. And we came to the light. The light
6 A. Yes. 6 was kind of green but going amber. And he told me to stop. So
7 Q. With whom? 7 when we stopped then he told me to go. So we broke the light.
8 A. With Kenneth and with Joe. 8 And went up the hill. And we made a quick right up the hill
9 Q. For what purpose? 9 into a graveyard.
10 A. One, to take a look at the operation; two, to meet the guys 10 Q. I'm sorry, into a graveyard?
11 to go to the farm; and the third time we were discussing rail. 11 A. Into a graveyard.
12 Kenneth was looking for investors to rail out, maybe turn this 12 Q. Who -- was it you or Mr. Cooley who directed that you drive
13 place into a transfer station. 13 into a graveyard?
14 Q. Were you being asked about another potential investment? 14 A. Larry. Mr. Cooley.
15 A. Yes. 15 Q. What happened in the graveyard?
16 Q. Ultimately, did you -- did your discussions with Joseph 16 A. We got out and we sat on a bench. So any cars coming in
17 Olivieri and Kenneth about gravel, how far did they get? 17 We'd have a view of what was going on. And we started talking.
18 A. None -- that was really it. I don't know how far it went 18 And he then told me that the FBI --
19 after that. 19 MR. GARDNER: Objection, your Honor.
20 Q. Was a sample tested from your gravel bank? 20 THE COURT: Sustained.
21 A. Kenneth got a sample tested, yes. 21 MS. ZORNBERG: Your Honor, we offer this under
22 Q. Did there come a time when you were invited to the wedding22 coconspirator statements under the federal rules of evidence.
23 of Mr. Olivieri's daughter? 23 MR. GARDNER: Your Honor, no coconspirator was --
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A. Yes. THE COURT: Sustained.
2 Q. Did you attend the wedding? 2 Q. As a result of that meeting with Mr. Cooley, what was your
A. No. understanding of whether the FBI had been to visit Mr. Cooley?
3 Q. Why not? 3 A. Ask the question again.
A. I was afraid Mack might be there with the cameras, didn't Q. Yes. As a result of your meeting in the graveyard with
4 want to go -- Mack might be there. I was -- I didn't know who 4 Mr. Cooley, what was your understanding of whether the FBI had
5 would be there. So I thought Mack or maybe the FBI or someone5 paid Mr. Cooley a visit?
6 might be taking photographs. So I didn't go. 6 A. They did pay a visit to Mr. Cooley.
7 Q. Did you give a gift? 7 Q. How did the meeting in the graveyard end?
8 A. Yes. 8 A. He told me that --
9 Q. I want to turn back now to Commercial Drywall and your 9 MR. GARDNER: Objection, your Honor.
10 relationship with Larry Cooley. While Commercial Drywall was 10 THE COURT: Sustained.
11 being operated by you, how often did you speak with Mr. Cooley?
11 Q. Mr. Murray, did there come a time when you fled the
12 A. At the beginning, a lot. And -- I spoke to Larry really a 12 country?
13 lot. A lot of times. I met Larry's wife. Yes. 13 A. Yes.
14 Q. Did there come a time when Mr. Cooley said he needed to 14 Q. When?
15 speak with you? 15 A. The 28th of March 2006.
16 A. Yes. 16 Q. How did you remember the date?
17 MR. GARDNER: Objection, your Honor. 17 A. It was four days after my daughter's birthday.
18 THE COURT: Rephrase the question. 18 Q. After she was born?
19 MS. ZORNBERG: Yes. 19 A. Yes.
20 Q. Is there any meeting with Mr. Larry Cooley that stands out 20 Q. What caused you to flee the country on March 28, 2006?
21 in your mind? 21 A. I hired an attorney. His name is Ivan Fisher. And he had
22 A. Yes. 22 gone to Ireland and checked out extradition laws. And I went
23 Q. Can you describe that, please? 23 to his office on a Tuesday. And he told me it was eminent that
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I was going to be arrested. And I just -- between me and him I Q. Did you personally lose money on the Cambridge and Oxford
2 made my mind up and I left. 2 projects?
Q. Did you leave the same day? A. Yes.
3 A. The same evening, yes. 3 Q. How much?
Q. Where were your wife and children? A. Between ten and eleven million.
4 A. They were back in Westchester. 4 MS. ZORNBERG: We can take that down.
5 Q. Did your family join you in Ireland at a later point? 5 Q. Mr. Murray, did there come a time when you decided to
6 A. About six weeks later. 6 cooperate with the government?
7 Q. Did there come a time after you returned to Ireland when 7 A. Yes.
8 you learned you had been indicted? 8 Q. When was that?
9 A. Yes. 9 A. Spring or summer of '08.
10 Q. How did you get that news? 10 Q. 2008?
11 A. From my attorney in Dublin. He was there the same day. 11 A. Mm-hmm.
12 Q. If you recall, what were you indicted for in 2006? 12 Q. What made you decide to cooperate?
13 A. Structuring, money laundering, and benefit -- conspiracy or 13 A. I changed attorneys. And my first attorney, I paid him and
14 benefit funds. 14 he just disappeared. So we were stranded in Ireland with no
15 Q. How long did you stay in Ireland? 15 communication with anyone. So I hired a new attorney. And he
16 A. Two years almost. 16 called the government. And then dialogue started.
17 Q. Were you living in Ireland in 2007? 17 Q. Who was the new attorney that you retained in 2008?
18 A. Yes. 18 A. His name is Josh Dratel.
19 Q. How did you live during that time? 19 Q. What did you have to do to begin the process of
20 A. Miserable. 20 cooperating?
21 Q. Now I just want to come back for just a moment to the 21 A. I had to return to the United States and get arraigned.
22 gravel, potential gravel investment that you discussed with 22 Q. Did you do that?
23 Kenneth and with Joseph Olivieri. 23 A. I did.
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Page 619 Page 621
When you were together with those two men, how did Q. Did you have a series of meetings with the government?
2 Kenneth refer to Joseph Olivieri? 2 A. Yes.
A. He used to call him Rudy. Q. Over days, weeks, months? How would you describe how often
3 Q. Okay. So now let's come back to when you fled the United 3 you met with the government as part of your efforts to
States. cooperate?
4 What was the state of the Cambridge project when you 4 A. Just a lot of times.
5 left the country? 5 Q. Did there come a time when you moved back to the United
6 A. About three-quarter of the way done, maybe 70 percent. 6 States?
7 Q. What was the state of the Oxford project when you fled the 7 A. Yes. Two years. Halloween eve.
8 country? 8 Q. Would that be Halloween of 2008?
9 A. Twenty, 25 percent complete. 9 A. Yes.
10 Q. I'm showing you now what's been marked as Government 10 Q. So, between spring, summer 2008 and Halloween 2008 were you
11 Exhibit 98. Do you recognize what's depicted in that photo? 11 flying back and forth for meetings with the government?
12 A. Yes. 12 A. Yes.
13 Q. Does that photograph fairly and accurately show what the 13 Q. After you returned to the United States at Halloween 2008,
14 state of the Oxford project was when you left the United States 14 did you plead guilty to the crimes that you described earlier
15 in 2006? 15 this morning?
16 A. Yes. 16 A. Yes.
17 MS. ZORNBERG: The government offers Exhibit 98. 17 Q. Did you sign a cooperation agreement with the government?
18 MR. GARDNER: We object, your Honor. 18 A. Yes.
19 THE COURT: Admitted. Objection is noted. 19 Q. Mr. Murray, when is the last time that you communicated
20 (Government's Exhibit 98 received in evidence) 20 with Joseph Olivieri?
21 MS. ZORNBERG: Ms. Geier, let's put up Exhibit 98. 21 A. '06, before I went to Ireland.
22 Q. That's how Oxford looked at the time you fled to Ireland? 22 MS. ZORNBERG: May I have a moment, your Honor?
23 A. Yes. 23 (Pause)
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Page 622 Page 624
No further questions. But Ms. Alston was one of the jurors that was late. Again,
2 THE COURT: We're going to break at this point rather 2 this is the third day in a row in which Mr. Alston was late.
than beginning the cross-examination. It's 12:30. We'll Ms. Zornberg we had the discussion about this matter
3 return at 1:30. 3 last week and you had indicated that the government is going to
(Jury excused) consult your supervisors about this matter. Did you have a
4 (Continued on next page) 4 chance to do that?
5 5 MS. ZORNBERG: Your Honor, I have to apologize. I put
6 6 in a call to the -- I haven't followed up fully. May I have an
7 7 opportunity over the lunch hour to do that.
8 8 THE COURT: Yes. All right. See you at 1:30.
9 9 (Luncheon recess)
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1 0AP9OLI3 Murray - direct 1 0aproli4
(Witness excused). AFTERNOON SESSION
2 THE COURT: Please be seated for one moment. Just 2 1:40 p.m.
going over the schedule again. Ms. Zornberg, you had indicated (Jury not present)
3 last week that Mr. Murray would be up for about an 3 THE COURT: Ms. Zornberg, did you have a chance to
hour-and-a-half to two. He was up almost three hours. Just address the issue we spoke about?
4 wanted to see whether your schedule has changed any since the 4 MS. ZORNBERG: We did, your Honor. Here is what I can
5 estimate you gave us on Friday or Thursday. 5 tell you. Rule 24 of the federal rules is the rule that
6 MS. ZORNBERG: Yes, your Honor. We do realize 6 governs jury selection. It does not provide anywhere in the
7 Mr. Murray's testimony took longer than we indicated. We 7 text of the statute for the court to swap an alternate juror
8 apologize for any inconvenience to the Court. 8 and a permanent juror. There is no express prohibition on it,
9 Here is the -- the schedule is the following. After 9 but there is nothing that permits it.
10 Mr. Murray is cross-examined, we intend to do a read back of 10 The Supreme Court cases that I was able to look at
11 the portion of Mr. Olivieri's deposition transcript that the -- 11 over the lunch break are pretty strict as to what conduct a
12 the portion that relates to questions about Jim Murray. That 12 judge is allowed to engage in with respect to alternate jurors.
13 should take maybe 20 minutes. 13 But we found nothing directly on point to the situation here,
14 Then we have Larry Cooley here as the government's 14 just more of a general prohibition on doing something outside
15 next witness. 15 of what the federal rules permit.
16 We also have John Greaney if -- if we get to him 16 We also found a case, which I can hand up to the
17 today, we have John Greaney available to take the stand as well17 Court, a Second Circuit case from 2008, U.S. v. Thompson, which
18 as Tracy Murray. 18 affirms that district courts have broad discretion to dismiss
19 THE COURT: All right. 19 and replace a juror for reasonable cause. There is no question
20 Is there anything else? 20 that this Court has the ability to dismiss a permanent juror
21 All right. Let me just come back to discussion of 21 and replace that juror with an alternate, but, again, we found
22 last week concerning the jurors. This morning three jurors 22 no authority for the modified approach the Court suggested,
23 were late. And I don't know exactly who was late by how much. 23 which is just to redesignate an alternate as a permanent and a
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Page 626 Page 628
1 0aproli4 1 0aproli4
permanent as an alternate. (Jury present
2 After speaking with our Appellate Division, your 2 JAMES MURRAY, resumed.
Honor, we don't have a comfort level with the Court doing that. THE COURT: Mr. Gardner.
3 We think that while it is uncharted territory under the law, it 3 MR. GARDNER: Thank you, your Honor.
may very well violate the constraints of Rule 24. We think CROSS-EXAMINATION
4 that based on the record that exists right now where the juror 4 BY MR. GARDNER:
5 has been late -- my understanding is he has been late at most 5 Q. Mr. Murray, good afternoon. My name is Brian Gardner, and
6 15 minutes each day, and it is our further understanding that 6 I represent Joseph Olivieri.
7 today he was one of three jurors who were delayed downstairs 7 A. Hi.
8 coming in -- we don't believe that it is necessary at this 8 Q. When was it that you first began paying shop stewards cash
9 point for that juror to be dismissed, especially AS there is 9 payments? What year was that? I'm not asking for an exact
10 only one alternate currently on the jury. 10 date.
11 THE COURT: Thank you, Ms. Zornberg. Is there not 11 A. Mid '90s.
12 precedent for a juror who is an alternate being dismissed, and 12 Q. Mid '90s?
13 then at some point something happens to the jury even during 13 A. Yes.
14 deliberations, and then you have to call back the alternate 14 Q. You were paying them cash because you were paying cash to
15 juror and then put them back on the deliberating panel? 15 your workers kind of off the union books?
16 MS. ZORNBERG: Of course. But the law is very strict 16 A. Yes.
17 that in that instance the deliberations have to start again. 17 Q. When you started doing that back in the mid '90s, did you
18 There is a lot of case law on when an alternate can join 18 know that that was wrong?
19 deliberations. There is a lot of case law that the court has 19 A. Yes.
20 broad discretion to dismiss a juror and replace a juror with an 20 Q. Did there come a time between the mid '90s and let's say
21 alternate for any reasonable cause. 21 Mack's subpoena in February of '05 that you ever stopped doing
22 We can research it further this evening, but we have 22 that?
23 found no precedent either in Rule 24 of the federal rules of 23 A. Never.
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1 0aproli4 1 0aproli4 Murray - cross
procedure or in any case law we could look at over the lunch Q. When did you start paying business agents?
2 break that would give this Court authority to take a permanent 2 A. 2000.
juror, leave that juror on the jury, but redesignate the Q. Was that for the same reason?
3 position as an alternate juror. That gives us some pause. 3 A. Yes.
THE COURT: Let me think about this. We'll see how we Q. Is that the same reason you paid money to Mr. Forde?
4 handle it later on. 4 A. Yes.
5 MS. ZORNBERG: Your Honor, I'm happy to hand up that 5 Q. When you were indicted and you fled to Ireland, you then
6 Second Circuit case. 6 started cooperating with the government in order to try and
7 THE COURT: You may. Bring in the jury now. 7 work out a deal for yourself?
8 (Continued on next page) 8 A. I fled and then I was indicted.
9 9 Q. That was because you had an idea that you would be
10 10 indicted, correct?
11 11 A. I just got bad advice.
12 12 Q. When you say bad advice, you mean you got advice that you
13 13 might be indicted soon?
14 14 A. No. My attorney had led me to believe that being out of
15 15 the way might be an easier way to fix the problem. But it
16 16 didn't work out the way it was supposed to work out.
17 17 Q. Was that the same attorney or you switched attorneys?
18 18 A. I switched attorneys.
19 19 Q. Did that other attorney attempt to negotiate with the
20 20 government while you were in Ireland?
21 21 A. He had a meeting with the government after I was indicted.
22 22 Then he flew back to Ireland, relayed information to me, and
23 23 then he came back to the States. Then he came back to Ireland,
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1 0aproli4 Murray - cross 1 0aproli4 Murray - cross
and then he had some knee injury or some problems. Q. And you're hoping to get probation?
2 Q. I want to back up for a second. The cash payments that you 2 A. I don't know what I'm getting. I would hope -- I don't
made to the shop stewards, the business agents, and to Forde -- know.
3 right? 3 Q. Let me change gears for a moment. You testified about Mr.
A. Yes. Cooley and Commercial, do you remember, just recently?
4 Q. You never made a cash payment to Joseph Olivieri, did you? 4 A. Yes.
5 A. Never did. 5 Q. You testified about being in a car with Mr. Cooley and then
6 Q. And Joseph Olivieri never asked you for a cash payment, did 6 driving to a graveyard, right?
7 he? 7 A. That's correct.
8 A. He never did. 8 Q. Was Mr. Olivieri in that car?
9 Q. You then signed a cooperation agreement with the 9 A. He was not.
10 government? 10 Q. Was Mr. Olivieri at that graveyard?
11 A. That is correct. 11 A. He was not.
12 Q. Then you pled guilty with regard to your cooperation, 12 Q. Was Mr. Olivieri part of that conversation at all?
13 right? 13 A. He was not.
14 A. That's correct. 14 Q. Staying with Mr. Cooley and Commercial for a minute, there
15 Q. As part of your cooperation, did your wife also received a 15 was one meeting at I think you said a Dunkin' Donuts. No, an
16 nonprosecution agreement? 16 IHOP.
17 A. I don't know. 17 A. Yes, sir.
18 Q. Did you ever discuss with your wife a nonprosecution 18 Q. One meeting at an IHOP where Joseph Olivieri introduced you
19 agreement? 19 to Mr. Cooley, correct?
20 A. I don't understand a nonprosecution. I don't understand 20 A. Correct.
21 the question. 21 Q. Other than that one meeting where that introduction
22 Q. Do you know if your wife ever spoke to the government? 22 occurred, were there any other meetings between yourself, Mr.
23 A. My wife has met with the government, yes. 23 Cooley, and Mr. Olivieri?
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Page 631 Page 633
Q. Do you know if that was pursuant to any agreement with the A. I don't believe so.
2 government? 2 Q. Prior to that meeting, I think you said you spoken to Joe
A. I don't know. Olivieri maybe two or three times regarding Commercial?
3 Q. Do you know if she was represented by an attorney? 3 A. Yes, two, three times.
A. Yes, she was. Q. After the meeting that you had with Mr. Cooley, Mr.
4 Q. Do you know if your wife was ever prosecuted? 4 Olivieri, you're in IHOP, after that meeting you then have a
5 A. My wife was never prosecuted. 5 series of meetings and conversations with Mr. Cooley, correct?
6 Q. Are you aware that this proceeding in which you're 6 A. Correct.
7 testifying is regarding a perjury allegation against Mr. Joseph 7 Q. Joseph Olivieri isn't involved in any way in those
8 Olivieri? 8 subsequent meetings, correct?
9 MS. ZORNBERG: Objection. 9 A. The meetings after? No. Joe had no meetings after the
10 THE COURT: Sustained. 10 first meeting that I had with Mr. Cooley.
11 Q. Have you read the indictment against Mr. Olivieri? 11 Q. He was not involved in the conversations in any way, was
12 MS. ZORNBERG: Objection. 12 he?
14 Q. With regard to your plea, I think you said you were facing 14 Q. In fact, Joe Olivieri doesn't know, for example, when you
15 48 years? 15 struck a deal with Mr. Cooley or what that deal was, correct?
16 A. That's correct. 16 A. I never had that conversation with him.
17 Q. Is that what the government informed you? 17 Q. With Joe?
18 A. That's what I pled guilty to in front of Judge Woods. 18 A. No.
19 Q. In front of Judge Wood? 19 Q. Joe Olivieri wouldn't know, for example, which jobs
20 A. Yes. 20 Commercial took over that On Par had been on previously,
21 Q. How did you know it was potentially 48 years? 21 correct?
22 A. Because I could read my counts and do the tally at the 22 MS. ZORNBERG: Objection to the questions about
23 bottom of it. 23 someone else's knowledge.
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Page 634 Page 636
THE COURT: Sustained. The last thing I wanted to do was for Mr. Rothman to know. I
2 Q. You never informed Mr. Olivieri about which jobs Commercial 2 didn't call Mr. Rothman or the district council. Why would I
had taken over for On Par, did you? do that? That was the last thing I would want to do.
3 A. No. 3 Q. Were you present for a conversation Mr. Rothman had with
Q. You don't have any information as we sit here that Joseph Mr. Cooley on the subject of you and your involvement in
4 Olivieri was informed of that by anybody else, do you? 4 Commercial?
5 A. I don't. 5 A. No, I wasn't at that meeting.
6 Q. Same idea: You never informed Joe Olivieri that you were 6 Q. After you spoke to Mr. Cooley, you struck a deal,
7 actually using On Par's former employees on Commercial job 7 Commercial starts operating, Commercial is operating entirely
8 sites, correct? 8 legitimately, right?
9 A. Ask that question again. 9 A. Commercial, yes.
10 Q. You never informed Joe Olivieri that On Par's former 10 Q. You also testified there is a hydrogen -- you were asked
11 workers were now on Commercial job sites, correct? 11 about a hydro transaction, hydrogen power I guess?
12 A. I would have discussed with Joe that I needed a company to 12 A. Not a transaction.
13 move my men over. I never discussed that I was going to use --13 Q. A potential investment?
14 I never told him -- I just needed another operating company. 14 A. Yes.
15 Q. That was the extent of the conversation, correct? 15 Q. As well as a potential investment in I think you said a
16 A. That's correct. 16 transfer station?
17 Q. What I'm saying is after the introduction, I'm asking you, 17 A. We discussed the transfer station, yes.
18 after the introduction you never had a conversation with Joe 18 Q. You didn't invest in either one of those, did you?
19 Olivieri that your workers were actually on now the site via 19 A. I did not.
20 Commercial? 20 Q. You never did business with Joe Olivieri in either one of
21 A. No. 21 those, did you?
22 Q. You never had that conversation, right? 22 A. No, I never invested in any money or did any business with
23 A. No. 23 Joe Olivieri. We just discussed and talked about them.
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Page 635 Page 637
Q. As a matter of fact, think even after you testified that Q. As for Commercial, Joe Olivieri wasn't involved in owning
2 you cut this deal with Commercial, On Par still had some 2 or operating Commercial at all, was he?
operations itself, right? A. No.
3 A. Yes. 3 Q. Joe Olivieri didn't receive any payment regarding the
Q. When did those On Par operations end entirely? introduction of you to Commercial, did he?
4 A. I would say when I went to Ireland. 4 A. He did not.
5 Q. When was that again? That was in '06 or what year? 5 Q. Switching gears to the Riverdale project.
6 A. March, March '06. 6 A. Yes.
7 Q. I think you said, but correct me, that when you struck this 7 Q. You did those. Those projects were done under two
8 deal with Mr. Cooley, at some point people, even Mr. Rothman, 8 corporate names, right?
9 spoke about it and knew about it. Am I wrong? Do you know who 9 A. Three.
10 Mr. Rothman is? 10 Q. Three? Which were the three corporate names?
11 A. Yes. 11 A. 912 Riverdale Corp., which was an operating management
12 Q. Mr. Rothman is an attorney for the funds, correct? 12 company, then Cambridge, and then DNC or something like that.
13 A. Correct. 13 Q. DJC?
14 Q. I think you said it was pretty well known that Jim Murray 14 A. DJC, yes. Sorry.
15 was striking a deal with Commercial and was sort of behind the 15 Q. Those three companies, you didn't actually own any of the
16 scenes for Commercial, correct? 16 shares in any of those three companies, right?
17 A. I never said that. 17 A. I did not.
18 Q. No? 18 Q. Joe Olivieri didn't own any shares in those three
19 A. No, I don't believe so. 19 companies, right?
20 Q. You don't remember saying that all knew of this, it's a 20 A. He did not.
21 small community and everybody knows everybody's business? You 21 Q. The owners of those three companies were who?
22 don't remember saying those words? 22 A. Michael Bookle and Robert Wagner.
23 A. Just the carpenters. I don't believe the district council. 23 Q. With the percentage of ownership much favoring Mr. Wagner,
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Page 638 Page 640
right? A. On Par was not on the site, no.
2 A. Yes. 2 Q. I asked you about the three companies, and now I asked you
Q. About what percentage for each company? about On Par. There was no other company that was actually
3 A. Rob owned 25 percent, Mike owned 15, and I owned 65. I 3 owned by you, Jim Murray, that was on that site, correct?
owned 60. A. There was not, no.
4 Q. I thought you said you didn't actually own anything in 4 Q. After the meeting at the diner, then I think you said you
5 that. 5 wanted to investigate whether Joe, DNO, was capable of doing
6 A. We had an operating agreement on the side. 6 the job, right?
7 Q. You had a separate -- 7 A. That's correct.
8 A. Mm-hm. 8 Q. Did Mr. Wagner go with you on this meeting?
9 Q. Was that kind of kept secret between the three of you guys? 9 A. There was one or two meetings I believe when we went to the
10 A. Yes. 10 upper west side to look at a job that DNO had completed, and
11 Q. I'm going to ask you about the chance meeting in the diner. 11 Rob was with me. I'm not too sure if Rob went to the White
12 What I'm going to ask you is that secret operating agreement 12 Plains address, to the contractor's. I'm not a hundred percent
13 that you just told us about between the three of you, you never 13 sure.
14 shared that information with Joe Olivieri, did you? 14 Q. You don't remember one way or another?
15 A. I did not. 15 A. No.
16 Q. You said you met Joe Olivieri at the diner in New Jersey, 16 Q. Do you know if Mr. Wagner, Rob, had other, separate
17 correct? 17 meetings with Joe Olivieri that you were not part of regarding
18 A. Yes. 18 investigate DNO and seeing if they could do the work?
19 Q. That was just a chance meeting, right? It was not a set-up 19 A. I have no idea.
20 meeting for you to meet Joe Olivieri, was it? 20 Q. You testified to some problems at the site because of the
21 A. It was not. 21 excavation and it needed to be shored up. You wouldn't
22 Q. You were looking for an excavator at that time, right? 22 consider those unusual problems? Every construction site has
23 A. I was talking with him about an excavating contractor. And 23 some problems, right?
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Page 639 Page 641
we met, as I walked out the door, Finbar, and Joe started A. Every construction site has problems.
2 talking. We exchanged numbers, and I called Joe or Joe called 2 Q. Again, you were happy with the work that DNO did, right?
me in the next couple of days. A. Always said that, yes.
3 Q. What I'm asking is when you walked into that diner, you 3 Q. You were asked questions about a backfill charge of
hadn't found an excavator yet for your Riverdale job, is that $15,000. Do you recall that?
4 right? 4 A. Correct.
5 A. I did not. 5 Q. Then you were also asked questions about on the second job
6 Q. I think you said the price that Joe gave you for the first 6 there was also a charge that was disputed. Do you recall what
7 one -- because they were bid separately, right? There was a 7 that was?
8 price for the first job and then the second one, right? 8 A. The elevator pit.
9 A. Correct. 9 Q. And where that should be, right?
10 Q. The price that Joe gave you for the first one through DNO, 10 A. That's correct.
11 you were happy with that price, right? 11 Q. Starting with the elevator pit, was there a dispute between
12 A. Yes, we were happy. 12 DNO and Mr. Wagner or others at the site that the plans were
13 Q. Joe's company DNO, they finished the job, right? 13 wrong and they shouldn't be charged with where the elevator pit
14 A. They done a good job. 14 was?
15 Q. They did a good job, right? 15 A. There was arguments back and forward. We hired Joe to do
16 A. Yes. 16 the extra work, to dig the new hole and put it in the right
17 Q. That's why they got that second job, right, the smaller, 17 place.
18 easier excavation? 18 Q. What about the backfill? Was it DNO's position that being
19 A. We had a relationship and everybody was working well, and I 19 paid for backfill was part of their contract price?
20 wanted to give the job to Joe. 20 A. Rob and Mike thought so, but I paid the money and he done
21 Q. For those jobs -- and I'll lump them together, the first 21 the backfill, and that was it.
22 one and the second one, Cambridge and Oxford -- On Par was not 22 Q. But DNO, Joe Olivieri, thought that the backfill was part
23 actually on the site, right? 23 of the contract price that he should be paid, right?
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Page 642 Page 644
A. He thought it was not part of the contract price. The guys government?
2 thought it was part of the contract price. 2 A. I met with the government, yes.
Q. I'm saying it backwards. Q. How many times?
3 A. Yes, you're backwards. 3 A. Once.
Q. Yes. If it's not part of the contract price, then he would Q. Did you go over your testimony?
4 be paid the extra money for it, right? 4 A. What's testimony now?
5 A. Correct. 5 Q. What we are doing now.
6 Q. I went backwards. Joe thought it was not part of the 6 A. Oh, no. We just talked about what I had told them through
7 contract price, right? 7 my two years of cooperating.
8 A. That's correct. 8 Q. You went over questions that they would ask you in court
9 Q. And he expressed that? 9 and the answers that you might give?
10 A. I believe with John Blauser and Rob Wagner he had those 10 A. Yes.
11 conversations. There was conversations about the backfill. 11 Q. Did they indicate to you, did they discuss with you at that
12 Q. Joe was not at the site every day, right? 12 time the testimony that you had given already on Thursday?
13 A. No. 13 A. No.
14 Q. During this time period we are talking about, he is still 14 Q. They talked to you about questions they were going to ask
15 the association director, the Wall & Ceiling Association 15 you today, right?
16 director, right? 16 A. Correct.
17 A. Yes. 17 Q. Did they talk to you about potential answers for those
18 Q. You said you knew he was the association director at the 18 questions?
19 time that you were investigating him, investigating DNO, to see 19 A. No. I told them. I gave them my testimony many months
20 if they could do the work, right? 20 ago. They asked the questions. They called how would I be
21 A. Yes. I knew Joe since I joined The Wall & Ceiling 21 going through the graveyard, going into the graveyard. I told
22 Association. I knew who he was. 22 them all.
23 Q. When was that that you joined the association? 23 Q. How about this question about when you learned whether Joe
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Page 643 Page 645
A. I believe it was 2001. was a trustee, did they talk to you about that?
2 Q. Like the middle of 2001? 2 A. No.
A. I don't know. I don't remember. Q. How about the Riverdale project at all? Did they question
3 Q. I think you testified that you found out or it actually 3 you about that?
maybe got processed within you that Joe was also a trustee on A. They asked all the questions about Riverdale.
4 the funds after you were subpoenaed by Mr. Mack, right? 4 Q. They asked you about the Mack subpoena and when you reached
5 A. I always knew Joe was a trustee. There's many trustees. 5 out for Joe?
6 There is another trustee that is not even part of the 6 A. The Mack subpoena and when I reached out for Joe, yes. All
7 association. His name is Paul O'Brien. But he is -- a lot of 7 the questions. I told them all my meetings with Joe.
8 the Irish contractors were part of his association. So you 8 Q. What I'm talking about is from Thursday until today. You
9 would just see it. It was always there in front of me. A lot 9 went through the whole thing again, right?
10 of paperwork came across. 10 MS. ZORNBERG: Objection to form.
11 Q. I'm going to bring you back to last Thursday, when you were 11 A. No.
12 testifying. Do you recall testifying on Thursday -- 12 THE COURT: Sustained.
13 A. I don't remember much from Thursday. 13 Q. Who was present when you met with the government from
14 Q. I'm going to ask you if you remember this question. "OK. 14 Thursday until today?
15 Did you come to learn at a later time whether he held any other 15 A. There was --
16 positions?" referring to Joseph Olivieri. The answer: "Yeah. 16 MS. ZORNBERG: Objection to form. He said he met
17 When Mack started subpoenaing me, then I realized just what, 17 once.
18 just what people's positions were." Do you remember saying 18 THE COURT: Sustained as to form.
19 that? 19 Q. When you met this one time with the government, who was
20 A. If I said it, I said it. I was very nervous on Thursday. 20 present?
21 It was a hard day. I'm still nervous. Can you ask the 21 A. There was two agents and the prosecutor, Ms. Zornberg.
22 question again? 22 Q. Approximately how long was that meeting?
23 Q. Between Thursday and today did you meet with the 23 A. Two hours.
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Q. You knew when you hired DNO for the Riverdale project that A. That's correct.
2 DNO was not a union company, right? 2 Q. At the closing of that bar, were you in the United States
A. Yes. or were you in Ireland?
3 Q. Meaning DNO did not have a signed agreement with the 3 A. I was in Ireland.
district council, correct? Q. Who took possession of the cash at the closing?
4 A. Joe had told me it wasn't, it was a nonunion company. 4 A. My attorney.
5 Q. Was it indicated to Joe that he was trying to do this job 5 Q. Which one?
6 as a nonunion job? 6 A. John Tague.
7 A. I told Joe I was doing it nonunion. 7 Q. What did John do with that cash?
8 Q. Are there different rates for residential projects outside 8 A. He gave it to my wife.
9 of Manhattan? Do you know? Do you know? I'm just asking if 9 Q. What did she do with the cash?
10 you know. 10 A. She gave it to Finbar.
11 A. No. I don't believe so, but I don't know. 11 Q. Did Finbar send it to you at all?
12 Q. Switching gears now to the Yonkers project. 12 A. He reimbursed me.
13 A. Yes. 13 Q. How much?
14 Q. When did you first start engaging in buying and flipping 14 A. He owed me some money. He gave me the whole lot.
15 houses? 15 Q. So Finbar then transferred 170 or thereabouts in cash to
16 A. Oh, mid '90s. 16 you while you were in Ireland?
17 Q. Throughout a lot of the time that On Par was operating as a 17 A. No. He kept the cash. He gave me a check.
18 large, substantial contracting company, you also had a side 18 Q. But he sent it to you in Ireland?
19 business of buying some houses and flipping them? 19 A. Yes.
20 A. Correct. 20 Q. Your wife, the other proceeds from that bar, did she also
21 Q. That side business of buying houses and flipping them, was 21 send it to you in Ireland?
22 that usually done through your wife's name? 22 A. Yes.
23 A. Yes. 23 Q. Was the bar in your wife's name?
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Page 647 Page 649
Q. What is your wife's name? A. I believe so. No, I don't think so. I think it was in my
2 A. Tracy. 2 name. The liquor license was in my name. I'm not too sure.
Q. In fact, you set up various corporations, and some of them Q. It wouldn't have been unusual for it to be? Most of the
3 had her name in the corporate title? 3 property outside of On Par you put in your wife's name, right?
A. Yes. A. Yes, most. But I'm thinking that the bar could be in my
4 Q. When you did the two houses that you testified to in 4 name because of the business. I'm not too sure. But all the
5 Yonkers, those were also done through Tracy's financing or 5 other properties were my wife's name.
6 accounts? Do you understand what I'm asking? 6 Q. All the houses?
7 A. I actually don't. 7 A. Yes, absolutely.
8 Q. Let me back up. The houses that you did before the two in 8 Q. Let me finish the question. All the houses, you were
9 Yonkers, did you use the same law firm, the Tague law firm? 9 buying them, fixing them up, those were in your wife's name,
10 A. Yes. 10 right?
11 Q. Did you use the same law firm for a bar? 11 A. Yes.
12 A. Yes. 12 Q. That's how you did that business, right?
13 Q. Did you sell that bar? 13 A. Yes.
14 A. Yes. 14 Q. With regard to the two Yonkers properties you testified to,
15 Q. Was there an under -- was there a cash payment regarding 15 just so I can identify them for the record -- Government
16 the sale of that bar? 16 Exhibits 74 and 75, right?
17 A. Yes. 17 A. Yes.
18 Q. How much was that cash payment? 18 Q. You testified that there was a promissory note made with
19 A. I think 170, 180,000 cash. 19 the payment back to Tracy Murray of that 730,000, right?
20 Q. That cash amount was not in the sale contracts for the bar, 20 A. That's correct.
21 was it? 21 Q. In fact, that money was paid back to Tracy Murray, right?
22 A. That's correct. 22 A. That's correct.
23 Q. It was like an under-the-table payment? 23 Q. That would be in a similar fashion to how you did all of
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Page 650 Page 652
the houses that you were flipping, correct? Q. The 730,000 you said went into Michele Bonsignore's escrow
2 A. Correct. 2 account, right?
Q. Just to back up a second on those houses, prior to getting A. Right.
3 involved in the flipping of these two houses, you yourself went 3 Q. As far as you know, that money stayed in Michele
and looked at them? Bonsignore's escrow account, right?
4 A. Yes. 4 A. I believe so, yes. Yes.
5 Q. To investigate whether you thought it was a good deal, 5 Q. Other than that 730,000, just clarifying, there's no other
6 right? 6 payments or any money at any time that somehow went to Joe
7 A. We looked at the houses before we bought them, yes. 7 Olivieri, right?
8 Q. Did you look at the houses maybe five, ten times? 8 A. No.
9 A. No. 9 Q. You're aware that the purchase of the houses, the
10 Q. How many times did you look at the houses? 10 renovating and the flipping of them, went through a corporate
11 A. I'd say one, but maybe two times most. 11 entity called Seavrus, right?
12 Q. It was not the type of situation where Joe Olivieri asked 12 A. You've got to repeat that.
13 you for $730,000 and you just wrote him a check? 13 Q. Are you aware that the two houses that were being bought,
14 A. No. 14 renovated and flipped, there was a corporate entity called
15 Q. You were doing it for a specific business purpose of this, 15 Seavrus to do that?
16 correct? 16 A. Yes.
17 A. That's correct. 17 Q. Joe Olivieri wasn't doing that as an individual; it was
18 Q. You know that the check has been put up there, the 18 being done through a corporation? That's what I'm asking.
19 $730,000, was written to an attorney's escrow account? 19 A. That's correct.
20 A. That's correct, yes. 20 Q. As far as you know, Joe Olivieri never touched the money;
21 Q. That 730,000 never was paid to Joe Olivieri himself, 21 it went all through the attorney's escrow account, correct?
22 correct? 22 A. I gave Joe the check and he gave it to his attorney.
23 A. That's correct. 23 Q. Did Joe tell you who to make out the check to?
25 (212) 805-0300 25 (212) 805-0300
Page 651 Page 653
Q. As far as you know, Joe Olivieri never had access to that A. Yes.
2 730,000, correct? 2 Q. Who did he tell you who to make out the check to?
A. I don't believe so. A. To Michele Bonsignore.
3 Q. That was done through a corporation called Seavrus, right? 3 Q. He never asked you to make out a check to him individually,
A. Yes. did he?
4 Q. The other checks that you were shown, the money going back4 A. He did not.
5 to Tracy, were the same; the money went into the attorney's 5 Q. On Par as a corporation was not involved in the purchase or
6 escrow account, and then the money went back to Tracy out of 6 flipping of these houses, correct?
7 the attorney's escrow account, right? 7 A. He had nothing to do with those.
8 A. That's what's shown there, yes. 8 Q. The check for this was I think January of 2005, right?
9 Q. Is that your recollection of how it worked? 9 A. Yes, something around then.
10 A. I don't know how it worked. I just seen it on the screen, 10 Q. Then, shortly after that, you got a subpoena from Mack,
11 checks that I gave of 730 and I got my 730 plus the profits of 11 correct?
12 the houses. 12 A. Yes. I'm just trying to get my dates. I think it was
13 Q. Are you aware it was through a corporation called Seavrus? 13 February when I got my subpoena from Mack.
14 You had heard of Seavrus? 14 Q. All I'm trying to do is get a time line. In the Yonkers
15 A. I have heard of it, yes. 15 properties you first gave the check, and then shortly
16 Q. You were aware that Seavrus was set up for the purpose of 16 thereafter, maybe a month or so, you then got a subpoena from
17 buying the two houses and renovating them and flipping them? 17 Walter Mack to come and down and talk, right?
18 A. Yes. 18 A. Yes.
19 Q. Other than the 730,000 going towards renovating the houses,19 Q. Then about a month later you did go down to see Mr. Mack,
20 I mean the buying and the renovating of the houses, as far as 20 right?
21 you know, there were no payment at all whatsoever to Joe 21 A. That's correct.
22 Olivieri, right? 22 Q. About March, right?
23 A. You're going to have to ask that question again. 23 A. Mid March, yes.
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Page 654 Page 656
Q. You testified when you went to Walter Mack, you took the he was part of that, do you?
2 Fifth amendment, right? 2 A. That he was part of the agreement?
A. Yes. Q. No, no. Part of the meetings negotiating the agreement?
3 Q. When Mr. Mack indicated that he was recommending that On 3 A. I have no knowledge.
Par be stopped from doing business, you called Joe Olivieri, Q. At some point you were informed that there was a payment
4 right? 4 plan being proposed to you, right?
5 A. I did, yes. 5 A. That's correct.
6 Q. At that time that you are down talking to Mr. Mack, you are 6 Q. Who informed you of that?
7 still a member, I mean you, On Par, are still a member of the 7 A. My attorney informed me, and we discussed it. Then I
8 association, The Wall & Ceiling Association, right? 8 remember Joe telling me it was going to be accepted.
9 A. That's correct. 9 Q. That's the $750,000?
10 Q. When you call Joe Olivieri, you are calling him in his 10 A. Yes.
11 capacity as director of the association to help you out, right? 11 Q. Did you make a down payment with regard to that when you
12 A. I called him, yes. 12 signed the payment plan, like $200,000?
13 Q. I'm asking, when you called him, you knew he was a director13 A. I did, I believe, something like that, yes.
14 of the association, right? 14 Q. You paid off the payment plan, right? You paid it off
15 A. I knew he was a director, and I knew him personally, too. 15 pretty quickly?
16 Q. Obviously, right? You had just written him a check and 16 A. I put 200,000 down, and then I paid 50,000 each month.
17 talked to him about flipping some houses, right? 17 Q. Until it was finished?
18 A. That's correct. 18 A. Correct.
19 Q. You knew him personally and you talked to him about the 19 Q. Your understanding regarding the payment plan was that --
20 Riverdale projects, too, right? 20 let me rephrase that. When you entered into the payment plan,
21 A. Not when I called him after Mack. 21 you were aware that that was not resolving all your potential
22 Q. I'm saying you had already talked to him about the 22 problems with the district council, correct?
23 Riverdale projects on any number of occasions, right? 23 A. Oh, I knew that, yes.
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Page 655 Page 657
A. That's correct. Q. You knew that you had more problems coming, you had more
2 Q. So when you called him from Walter Mack's, you have a 2 money that was going to be claimed owing, correct?
problem, you are reaching out for Joe Olivieri, you are A. Correct.
3 reaching out for him as a member of the association, correct, 3 Q. The payment plan was just an initial payment to the
and as somebody you know? district council, right?
4 A. Yes. 4 A. Well, it was a payment.
5 Q. You then shortly thereafter, a few months later, enter into 5 Q. It was a payment towards what you would be told you owed
6 a payment plan that the government questioned you about, right?6 later, right?
7 A. Yes. There was a lot of work on that payment. 7 A. Well, I didn't know what was coming.
8 Q. That's what I was going to ask you. It didn't just happen 8 Q. You knew you were going to be audited though, right?
9 in two seconds. There were a lot of meetings that led up to 9 A. Yes.
10 that, right? 10 Q. And you knew it would be on a more substantial audit than
11 A. My attorney took care of that, Gary Rothman from the 11 what had occurred in the past?
12 benefit funds. 12 A. Correct.
13 Q. Gary Rothman, again, is the attorney. Your understanding 13 Q. And you knew it was possible that that audit could say you
14 is he was an attorney for the benefit funds, right? 14 owed a whole lot of money, right?
15 A. Yes. 15 A. Yes.
16 Q. It is your understanding that there were a number of 16 Q. That's what you expected, right?
17 meetings between your attorney and Mr. Rothman regarding the17 A. I didn't know what to expect.
18 payment plan? 18 Q. You thought that was a significant possibility, right?
19 A. That's correct. 19 A. Yes.
20 Q. Regarding those meetings between Mr. Rothman and your 20 Q. Do you recall the name of the person who was then doing the
21 attorney, Joe Olivieri was not part of those meetings, correct? 21 audits after the payment plan? Was it Mr. Olivieri?
22 A. I don't know. I don't know. 22 A. I can't recall. When you say doing audits?
23 Q. You have no knowledge -- you have no reason to believe that23 Q. I'll back up a little bit. After the payment plan was
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Page 658 Page 660
entered, do you then have subsequent meetings and conversations THE COURT: Yes.
2 regarding the audits that are going on? Do you understand? 2 Q. Does this refresh your recollection that this audit was
A. No. I'm trying to figure this one out. resolved at the end of 2002 or the beginning of 2003?
3 Q. OK. There is a payment plan, and then later on are you 3 A. The audit period was from July '99 to 12, December, '01.
informed that there was an audit done and there is a claim by So yes, it would be sometime in '02 that this would be done.
4 the funds that you owe many millions of dollars? 4 Q. And that you would have been made aware, right?
5 A. The claim was made when I was in Ireland, I believe, of 5 A. Yes.
6 substantial millions of dollars. 6 Q. You wouldn't be made aware of the audit while it was
7 Q. Are you aware there was a lawsuit by the funds against On 7 ongoing, right?
8 Par and yourself for those millions of dollars? 8 A. No.
9 A. Yes. 9 Q. When you were made aware of this audit in '02 and it was
10 Q. Joe Olivieri, you are aware, was a trustee at that time, 10 resolved in '03, you were a member of the association, correct,
11 right? 11 The Wall & Ceiling Association?
12 A. Yes. 12 A. I didn't hear that question.
13 Q. Prior to the payment plan, you had gone through a couple of 13 Q. When you were made aware of this audit and the audit was
14 audits, correct? The payment plan, you said, was July of '05. 14 resolved sometime in January of '03, at those time periods you
15 Do you want me to show it to you again? 15 were a member of The Wall & Ceiling Association, correct?
16 A. Yes, please. 16 A. Yes. I don't know what date I joined The Wall & Ceiling.
17 Q. I think it is actually still in front of you. It's marked 17 (Continued on next page)
18 as Government Exhibit 262 on the bottom. It says "Payment Plan 18
19 Agreement" on the top. 19
20 A. Yes, I've got it here. 20
21 Q. Do you see in the first line there it says July 28th of 21
22 2005? 22
23 A. Yes. 23
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Page 659 Page 661
1 0aproli4 Murray - cross 1 0ap9oli5 Murray - Gardner
Q. My question is prior to July 28th of 2005, On Par had gone Q. I'm going to show you Government Exhibit 253. Do you have
2 through a couple of audits from the funds, right? 2 it there? I think just so you can get a timeframe reference.
A. Yes. Yes, we had. May I approach, your Honor?
3 Q. Do you recall when the first one was? 3 THE COURT: Yes. This.
A. The late '80s. MR. GARDNER: This might help, your Honor.
4 Q. The late '80s? OK. I didn't expect you to go that far 4 I'm going to show the witness what was previously put
5 back. In 2000, in the 2000's, do you recall if one of those 5 into evidence as Government Exhibit 414 as well.
6 audits was in 2004? 6 May I approach?
7 A. I have one here. This one here? 7 THE COURT: Yes.
8 Q. Just tell me, on the bottom it has an exhibit number for 8 Q. Does that refresh your recollection of when you applied and
9 the government? 9 were a member of the association?
10 A. 261. 10 A. I applied on the 25 of July 2001 and I got accepted on the
11 Q. What is the date of that audit? 11 20th of December 2001.
12 A. March 24, 2004. 12 Q. 20th of September?
13 Q. Do you recall that audit? 13 A. September.
14 A. Yes. 14 Q. September.
15 Q. Do you recall an audit prior to that for approximately 15 So when you were audited -- when you were informed of
16 $600,000 a year or two prior to that? 16 the 2002 audit that was resolved in January of '03 you were
17 A. Something like that, yes. 2000, 2001. 17 certainly a member of the association, correct?
18 Q. Did you settle that one for $300,000? 18 A. That's correct.
19 A. That's correct. 19 Q. And that other audit that occurred in '04, you were a
20 Q. The first one now, which you settled for 300,000, was that 20 member of the association at that time too, the one you
21 after you joined The Wall & Ceiling Association? 21 referred me to?
22 A. That's a good question. I don't know. 22 A. Yes.
23 MR. GARDNER: Your Honor, may I approach the witness?23 The two hundred and -- March 24, 2004.
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Page 662 Page 664
1 0ap9oli5 Murray - Gardner 1 0ap9oli5 Murray - Gardner
Q. And throughout that period of time, did you have Q. You went by yourself?
2 conversations with people regarding the alleged delinquencies 2 A. I went with my payroll clerk, Judy Shapner.
that you had for the funds? Q. And Judy did your books, recordkeeping?
3 MS. ZORNBERG: Objection to form. 3 A. She didn't do my recordkeeping. She just done the payroll.
THE COURT: Sustained as to form. Q. She did both payrolls or just the payroll that you
4 Q. Audits involved alleged delinquencies for the funds? Is 4 accurately reported to the funds?
5 that your understanding? 5 A. The second one. The accurate one.
6 Do you understand the word delinquency? My use of the 6 Q. Who did the first one?
7 word? No? 7 A. My controller. Her name is Ingrid.
8 A. No. I don't understand the term. 8 Q. What's her last name?
9 Q. I'll rephrase it then. As to -- the audits involved a 9 A. Donnelly.
10 claim by the funds that you owed money to the funds, right? 10 Q. So you had to separate those functions?
11 A. Yes. 11 A. Yes.
12 Q. And you had conversations during 2002, 2003, even 2004 with12 Q. Did you ever get audited by the state district council as
13 people regarding the fact that the funds, were saying that On 13 well? Do you recall that?
14 Par owed money to them, right? 14 A. I don't think so.
15 MS. ZORNBERG: Objection to form. Conversations with 15 No. I don't understand the question.
16 people. 16 Q. Now March, the one you said, Exhibit 261, do you see that?
18 THE WITNESS: Sorry. Just ask the question again. 18 Q. That's March of '04, right?
19 THE COURT: The reporter read back the question. 19 A. Correct.
20 (Record read) 20 Q. Do you recall when that was resolved, how much after that
21 THE WITNESS: I'd have to say no to that question 21 letter?
22 because I don't know -- I don't remember having these 22 A. I don't recall.
23 conversations with any people. 23 Q. But this letter that's March of '04, that's the first
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Page 663 Page 665
Q. You kept it secret? letter to you that there's an audit amount that they say is
2 A. How do you mean kept it secret? Kept what secret? 2 owing, right?
Q. Well, you had to have discussed with somebody that funds A. That's correct.
3 were seeking -- 3 Q. So it was sometime after that date, right?
A. The auditors would come to your office. They would audit. A. Yes.
4 And then they would send you a letter like this. 4 Q. And when did you -- when about was this meeting in the
5 Q. Can you tell me what you're holding up? What's the 5 diner with -- the chance meeting where you ran into Joe
6 Government Exhibit number? 6 Olivieri?
7 A. It's 261. 7 A. Around that time. Maybe a little before. I don't know.
8 Q. They would send you something like that. So we're clear, 8 Something around --
9 that's from the funds? 9 Q. And at that time, again, when you had that chance meeting
10 A. That's correct. 10 at the diner when you received this letter, you're well aware
11 Q. And even that contains Joseph Olivieri's name on the upper 11 that Joseph Olivieri is the director of the association that
12 right hand portion, right, you pointed out? 12 you're a member of, right?
13 A. Yes. 13 A. That's correct.
14 Q. And what I'm asking you is, when you get a letter like 14 Q. And is it possible that when you received this letter, 261,
15 this, that's what you're showing, 261? 15 you reached out to Joe Olivieri concerning it?
16 A. Yes. 16 A. I didn't reach out to Joe for this.
17 Q. When you get a letter like that, you talk to somebody about 17 Q. You remember perfectly?
18 it? You talk to an attorney? 18 A. I don't remember reaching out to Joe for --
19 A. I never talked to an attorney, no. 19 Q. You don't remember either way, right?
20 Q. You talked to internal bookkeeping people? 20 A. I don't remember calling him on this -- to help me with
21 A. We go down to the carpenters union. And you sit with the 21 this case.
22 people. I don't know. Steve Kassarda from the benefit funds 22 Q. Was a part of Joe Olivieri's job as a director of the
23 and you sit around the table. 23 association to assist the members with audits?
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Page 666 Page 668
A. (No response). A. Correct.
2 Q. Wasn't that part of his job? 2 Q. They weren't sent as On Par employees, were they?
A. I actually don't know. I know he's -- when you get A. I called the office and the office sent two, three
3 grievances and that, he -- you would call to get the 3 carpenters to finish up the job site.
association. Q. Joe Olivieri had no knowledge that those were On Par people
4 Q. So if you had a grievance by the union, part of the 4 being sent to the site, right?
5 association's job is to help you with that grievance, right? 5 MS. ZORNBERG: Objection.
6 A. Correct. 6 THE COURT: Sustained.
7 Q. Did you have grievances with the union prior to March of 7 Q. Did you ever discuss with Joe Olivieri that On Par
8 '04? 8 carpenters or people that otherwise worked for On Par were
9 A. (No response). 9 being sent to the site?
10 Q. I'm not asking that you recall any specific one. I'm just 10 A. I did not.
11 saying that there were grievances before then, right? 11 Q. Now the last time you spoke -- let me withdraw that.
12 A. I'm not too sure. 12 The last time, other than being in court on Thursday
13 Q. Grievances with the union are not an unusual thing, are 13 or at some point, when was the last time that you saw Joe
14 they? 14 Olivieri?
15 A. No. No. No. I had them. But I don't know was it before 15 A. '06.
16 or after. 16 Q. Before you went to Ireland?
17 I definitely had grievances. 17 A. Yes.
18 Q. You had grievances. You -- fathom to say you had a large 18 Q. When was the last time you spoke to Joe Olivieri?
19 number of grievances, right? 19 A. I can't remember.
20 A. No, not too many. 20 Q. Sometime before that?
21 Q. And you don't remember if any of them were before this 21 A. Yes, yeah.
22 date? 22 Q. You never spoke to Joe Olivieri while you were in Ireland,
23 A. (No response). 23 did you?
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Page 667 Page 669
Q. You don't remember if any of the grievances were before the A. I never did.
2 March -- 2 Q. You never had anybody speak to Joe Olivieri on your behalf
MS. ZORNBERG: Asked and answered. while you were in Ireland, did you?
3 THE COURT: Sustained. 3 A. I did not.
Q. Do you recall discussing any grievances with Joe Olivieri? Q. At the present time would you agree you do not have a
4 A. Yes. 4 relationship with Joe Olivieri?
5 Q. Do you recall having those conversations prior to March 24, 5 A. That's correct.
6 2004? 6 Q. From the time you joined the association, going a few years
7 A. I don't know. 7 after that, so from '01 to say the beginning of '04, how many
8 Q. You don't recall the date, do you? 8 times did you meet with Joe Olivieri?
9 A. No. I don't recall the date. 9 A. I don't believe I did.
10 Q. Let me just ask the question. I'm going to ask it again so 10 Q. Did you ever attend any association functions maybe?
11 the record is clear. 11 A. Just one.
12 You don't recall the date that you first had a 12 Q. Was Joe Olivieri at that one function?
13 conversation with Joe Olivieri concerning a grievance, right? 13 A. Yes.
14 A. I don't. 14 Q. What kind of function was it?
15 Q. The Yonkers properties, the two houses that were being 15 A. It was a -- I forget. It was down the West Side, Houston
16 purchased and flipped, On Par didn't have any involvement in 16 Street, on Bleeker Street. I think it was kind of a cigar
17 that? 17 club.
18 THE COURT: Asked and answered. 18 Q. That's -- and it was an association function though?
19 MR. GARDNER: Okay. I wasn't sure. 19 A. Correct.
20 Q. The workers that you said On Par sent down -- let me 20 Q. During that same time period could you have spoken to Joe
21 withdraw that. 21 Olivieri other than that one function, maybe on the phone a
22 The workers -- I believe you said certain workers were 22 couple of times?
23 sent to the office properties that also worked for On Par? 23 MS. ZORNBERG: Objection. Form.
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Page 670 Page 672
THE COURT: Sustained as to form. MS. ZORNBERG: Objection, your Honor.
2 Q. I'm talking about that same time period. Do you recall if 2 THE COURT: As to form. Sustained.
you could have spoke to Joe Olivieri during that time? Q. When there's a company, there are shares, there's an actual
3 MS. ZORNBERG: Objection to could have. 3 ownership interest, right?
THE COURT: Sustained. A. Yes.
4 Q. Do you recall if you spoke to him during that period of 4 Q. So other than On Par Contracting and On Par Construction
5 time, how many times? 5 and maybe the bar, you didn't own any other companies, right?
6 A. Which period, 2001? 6 A. I believe I did. I was a share in a building down on the
7 Q. Say 2001, 2002, 2003, first half of 2004. 7 west side of Manhattan.
8 A. I'd say I met Joe the first time, talked to him it was in 8 I don't know. I just -- something is telling me yes
9 '03, late '03, '04. 9 and something is telling me no.
10 Q. Where was that? 10 Q. With regard to the bar, let me just ask you that, you never
11 A. In the diner in New Jersey. 11 informed Joe Olivieri that you were part owners in that bar,
12 Q. Okay. So that's the time period that you already gave us? 12 right?
13 A. Yes. 13 A. Joe knew I had the bar.
14 Q. So prior to that diner in New Jersey and the one time that 14 Q. He knew you had a bar?
15 you saw him at the function, did you ever see Joe Olivieri? 15 A. Yeah.
16 A. Yes. At a golf outing in Great Neck. 16 Q. He knew you were involved in the bar, right?
17 Q. So a couple of outings, right? 17 A. He knew I owned it. He knew the bar. Joe knew I owned the
18 A. Yes. 18 bar. We talked about it.
19 Q. Did you also speak to him on the phone once or twice? 19 Q. What was the name of the bar?
20 A. I don't believe so. 20 A. It was called Burkes. It was on Bronx River Road in
21 Q. Other than On Par, did you own any companies? 21 Malvern.
22 A. Yes. 22 Q. And when Burkes was sold it was sold while you were in
23 Q. What companies? 23 Ireland, right?
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Page 671 Page 673
A. (No response). A. No. I sold -- I sold it -- it didn't close-out -- it
2 Q. Are you talking about prior to On Par? You gave us a 2 actually was sold when I was here, just did -- the final
description of what you owned prior? transaction didn't --
3 A. There's a couple. I owned a lot of companies. I forget 3 Q. That's the same bar we're talking about with that
the names. cash-under-the-table payment?
4 Q. Let me be more clear. When did you start On Par, about? 4 A. Yeah.
5 A. '93-ish. 5 Q. So it closed when you were in Ireland?
6 Q. After you started On Par, did you actually own any other 6 A. Yes.
7 companies? 7 Q. When was it that you first went into a transaction to sell
8 A. I believe so, yes. 8 that bar?
9 Q. What other companies? 9 A. '05.
10 A. I think I owned the bar on Bronx River Road. I'm not sure. 10 Q. In '05?
11 Q. The one we were talking about earlier? 11 A. Yes.
12 A. Yes. 12 Q. How did it get sold -- how did the transaction get complete
13 Q. Other than that bar, you didn't own any other companies, 13 while you were in Ireland?
14 right? 14 A. I'm trying to think of that now. I don't know. Maybe I
15 A. There was On Par Construction, On Par Contracting. I owned 15 was here.
16 those, those -- I owned the companies. 16 I forget.
17 Q. So On Par Construction, and On Par Contracting. 17 Q. Did you transfer some assets into your wife's name once you
18 So other than On Par Construction and On Par 18 realized that you were going to have a problem with the union
19 Contracting, you didn't own any other companies, right? 19 from the funds? For example, your personal house? Did you
20 A. I think I did. 20 transfer that in Tracy's name?
21 Q. What company? 21 A. That was always in Tracy's name for many, many years.
22 A. I was partners in -- partners and affiliated? 22 Q. Why was that?
23 Q. I'm talking about a company that you actually owned. 23 A. That's the way I done it.
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Page 674 Page 676
1 0ap9oli5 Murray - Gardner 1 0ap9oli5 Murray - redirect
Q. Was that to try to insulate it from certain -- whom the check was addressed?
2 A. That's the way -- maybe advice from my accountant but 2 A. Joe.
that's the way it was always done. Q. To whom did you physically hand the check for $730,000?
3 Q. As far as you're aware did On Par as an entity ever work on 3 A. Gave it to Joe.
a job site with DNO? Q. What did Joseph Olivieri do with that money?
4 A. (No response). 4 MR. GARDNER: Objection, your Honor.
5 Q. That never happened, right? 5 THE COURT: Sustained.
6 A. On Par -- 6 Q. Was that money used to purchase the houses?
7 Q. On Par. 7 A. I believe so.
8 A. No, it did not. 8 MS. ZORNBERG: Let's just briefly put up Government
9 MR. GARDNER: One moment, your Honor. 9 Exhibit 610 -- I'm sorry. Not 610. 602. The promissory note.
10 If I could have one moment, your Honor. 10 Yes. Government Exhibit 602.
11 (Pause) 11 Q. That's the promissory note for the $730,000. Was it from
12 Q. Just to finish up on the Burkes bar. Who were you in 12 Joseph Olivieri and Seavrus Real Estate Holdings?
13 business with on that? 13 MR. GARDNER: Objection, your Honor.
14 A. Myself. 14 THE COURT: Overruled.
15 Q. I thought you said Finbar O'Neill got some money from that 15 THE WITNESS: Yes.
16 or that's -- you sold the bar and then you gave the money to 16 Q. That promissory note was signed by Joseph Olivieri both
17 Finbar is what you said, cash? 17 individually and as president of Seavrus Realty Holdings,
18 A. Yes. He had nothing to do with the bar. 18 right?
19 Q. Okay. He had nothing to do with the bar? 19 A. Yes.
20 A. No. 20 Q. Did On Par workers finish the renovations on those two
21 Q. That was money owed to him separately for something else?21 homes?
22 A. I gave money to Tracy and she didn't want it around the 22 MR. GARDNER: Objection.
23 place. And I called him. And he came and took it. 23 THE COURT: Overruled.
25 (212) 805-0300 25 (212) 805-0300
Page 675 Page 677
1 0ap9oli5 Murray - Gardner 1 0ap9oli5 Murray - redirect
Q. That was just for him to take possession of? THE WITNESS: Yes.
2 A. Yeah. 2 Q. You were also asked on cross-examination about some earlier
Q. When was the last time before you left for Ireland that you audits of On Par by the benefit funds. Do you recall those?
3 spoke to Mr. Olivieri about the bar? 3 Do you recall being asked questions about audits by the funds?
A. I don't know. A. Yes.
4 Q. Mr. Olivieri wasn't an investor or part owner in that bar, 4 Q. And I believe you said on cross-examination that you
5 was he? 5 handled those audits personally?
6 A. He was not. 6 A. Yes.
7 Q. He never received any value or any money from the bar, 7 Q. In 2001, 2002, 2003, 2004, did you meet with Joseph
8 right? 8 Olivieri about audit notices you received from the benefit
9 A. No. 9 funds?
10 MR. GARDNER: No further questions. Thank you. 10 MR. GARDNER: Objection.
11 THE COURT: Ms. Zornberg. 11 THE COURT: Overruled.
12 MS. ZORNBERG: Thank you, Judge. 12 THE WITNESS: No.
13 REDIRECT EXAMINATION 13 Q. Did any representative of the Wall & Ceiling Association
14 BY MS. ZORNBERG: 14 come down with you to the benefit funds when you worked out
15 Q. Mr. Murray, good afternoon. You were asked on 15 those audits?
16 cross-examination about the $730,000 check that you gave for 16 A. No.
17 the Yonkers properties, correct? 17 Q. Now, when you started going into business with Joseph
18 A. Yes. 18 Olivieri --
19 Q. Who found those Yonkers properties? 19 MR. GARDNER: Objection, your Honor.
20 A. Joe and his sanitation friend. 20 THE COURT: Sustained.
21 Q. How did you know what amount to put in the check? 21 Q. When did you get close to Joseph Olivieri?
22 A. Joe told me. 22 MR. GARDNER: Objection, your Honor.
23 Q. Who told you to put Michelle Bonsignore as the person to 23 THE COURT: Overruled.
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Page 678 Page 680
1 0ap9oli5 Murray - redirect 1 0ap9oli5 "Joseph Olivieri"
THE WITNESS: I believe spring '04. I'll say "question" and then read the question. And
2 Q. Was that in connection with the Riverdale projects? 2 you can read the answer. Starting at page 184, line 8.
A. Yes. "Q. Do you know someone named James Murray?
3 Q. At that time were you hoping that it would help On Par down 3 "A. Yes.
the road to be close to Mr. Olivieri? "Q. Who is James Murray.
4 MR. GARDNER: Objection, your Honor. 4 "A. He was the owner of On Par.
5 THE COURT: Sustained as to form. 5 "Q. When did you first meet James Murray?
6 MS. ZORNBERG: I'll rephrase, your Honor. 6 "A. When he became a member.
7 Q. What was your hope? 7 "Q. A member of the association?
8 A. To get to know Joe. 8 "A. Of the association.
9 Q. Why? 9 "Q. And when was that?
10 A. In case I ever needed him. I didn't know him prior to that 10 "A. I think in 1990 or 1991 -- I'm sorry 2000, 2000, 2001.
11 so I was hoping to get to know him. In case I needed him I'd 11 Sorry.
12 have his number. 12 "Q. So you were executive director at that time?
13 Q. Did Mr. Olivieri, in fact, help On Par? 13 "A. Yes.
14 A. When I called him with Walter Mack, yes. 14 "Q. How did it come about that you met him?
15 Q. How about when he found Commercial Drywall for you? 15 "A. He sent an application in to become a member. The board
16 A. Yes. 16 voted on it and he came to some membership meetings.
17 MR. GARDNER: Objection. 17 "Q. Is it usual for you to meet the owners or principals of
18 THE COURT: Sustained. 18 companies that belong to Wall Ceiling Association?
19 MS. ZORNBERG: Just a moment, your Honor. 19 "A. Well usually once a year you might -- they come to a
20 (Pause) 20 membership meeting.
21 No further questions. 21 "Q. What is your relationship with James Murray?
22 MR. GARDNER: No further questions. 22 "A. I don't have a relationship with him.
23 THE COURT: You may step down. 23 "Q. When was the last time you talked to him?
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Page 679 Page 681
1 0ap9oli5 Murray - redirect 1 0ap9oli5 "Joseph Olivieri"
(Witness excused) "A. Two, three years ago.
2 Ms. Zornberg. 2 "Q. Do you recall what you discussed?
MS. ZORNBERG: Yes, your Honor. At this time the "A. Yes. I had a meeting with him, with counsel from the
3 government would like to do a read-back of the portion of 3 carpenters concerning a meeting to talk about what he owed the
Mr. Olivieri's deposition relating to his testimony regarding benefits. It was from an audit. He had a delinquency on an
4 Jim Murray. The jurors have the binders and what we would 4 audit and he was coming in to talk about it. And then they --
5 propose is that one of the agents, Agent Pollitt, take the 5 he had some more meetings. And then him and the attorney dealt
6 stand for the purpose of assisting in doing the read back, 6 with each other one-on-one.
7 along with AUSA Lanpher. 7 "Q. So in that meeting or the series of meetings were you
8 MR. GARDNER: Your Honor, may we approach just so I 8 meeting with him in your capacity as executive director of the
9 know what we're talking about, what portions of the deposition. 9 Wall Ceiling or as the trustee of the benefits funds or as
10 THE COURT: Perhaps the government can just tell you. 10 something else?
11 (Pause) 11 "A. As executive director plus he had -- what I do is I meet
12 MR. GARDNER: Thank you, Judge. 12 with my contractors, I establish dates with the lawyer for the
13 THE COURT: All right. 13 audit department in the funds or anyone who has a deficiency
14 BY MR. LANPHER: 14 and we go in and we go over the deficiency items so that they
15 Q. Agent Pollitt, I'm going to begin at page 184, line 8. So 15 can be settled. If they have any disagreements with them, they
16 just look up when you're ready. 16 bring in their backup to support their positions. If they
17 A. Line eight you said? 17 don't, they talk about having to pay immediately. And if they
18 MR. LANPHER: And for the record, we're reading from 18 can't pay immediately, they may make a request for a payment
19 Government Exhibit 14 in evidence. 19 plan.
20 And ladies and gentlemen of the jury, you have copies, 20 "Q. Before that series of meetings about On Par's delinquency
21 I believe. 21 with the benefit fund, when was the last time before that that
22 Agent Pollitt, I'll read the portion of the AUSA, and 22 you had talked to James Murray?
23 I'd ask that you read the portion of Joseph Olivieri. 23 "A. I don't know exactly when.
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Page 682 Page 684
1 0ap9oli5 "Joseph Olivieri" 1 0ap9oli5 "Joseph Olivieri"
"Q. Do you know approximately when? "A. Mm-hmm. Yes.
2 "A. No. 2 "Q. Did you ever become aware that Walter Mack was
"Q. Between the time that you first met him right after he investigating On Par?
3 joined the association and the time that you had these meetings 3 "A. I think there was some gossip that he was -- that On Par
about his delinquency of the benefit funds, did you ever speak was being looked at by the investigator at the district
4 with him in that period? 4 council.
5 "A. He came to a couple of meetings. 5 "Q. Do you recall who told you that gossip?
6 "Q. Did you ever discuss business with him? 6 "A. No, I don't recall who said it.
7 "A. How's business? How you doing? I'm busy. I'm not busy. 7 "Q. Do you recall when you heard that approximately?
8 Just general topics. 8 "A. I don't recall.
9 "Q. Did you ever arrange specifically to meet with him? 9 "Q. Do you recall if it was before or after you began meeting
10 "A. No. 10 with James Murray about his delinquency to the benefit funds?
11 "Q. During the period between the time you first met with him 11 "A. I think it was after. It might have been -- let's see.
12 and the time you started meeting with James Murray about his 12 I'm not one hundred percent sure, but it could have been after.
13 delinquency, about how many times did you talk to him? 13 "Q. Did you ever become aware of what exactly Walter Mack was
14 "A. I have no idea. 14 investigating?
15 "Q. Approximately? 15 "A. He was investigating if he was in violation, I guess, of
16 "A. I can't approximate. 16 the bargaining agreement -- of his bargaining agreement.
17 "Q. Is it more than two? 17 "Q. You said you guess, but do you recall actually finding that
18 "A. I don't even know. I have no idea. 18 out or are you just assuming that now?
19 "Q. Would you say he came by the association about once a year? 19 "A. No. I don't know exactly what his investigation entailed.
20 "A. He went to the golf outing. He might have come by a 20 "Q. Did you ever make any efforts to find out?
21 Christmas party. You know, I have 185 members. 21 "A. No. I never made any efforts to find out.
22 "Q. Did you ever talk to James Murray -- except for that 22 "Q. When you first heard that Walter Mack was investigating On
23 delinquency meeting we talked about, have you ever talked to 23 Par, did that cause you any concern as the executive director
25 (212) 805-0300 25 (212) 805-0300
Page 683 Page 685
James Murray outside of the context of an association social of the Wall Ceiling Association?
2 event like a golf outing or a Christmas party? 2 "A. Well if he was in violation of his collective bargaining
"A. Did I ever talk to him? agreement and he didn't come to terms with whatever he did, he
3 "Q. Outside of that kind of context, that kind of meeting or 3 would be removed as a member.
party or outing? "Q. At the time you found out that Walter Mack was
4 "A. Could you explain a little more? 4 investigating On Par, did either you or anyone else on behalf
5 "Q. Well as I understand it, the first time you met James 5 of the Wall Ceiling Association do anything about it?
6 Murray was right after he became a member; is that right? 6 "A. No. We don't -- we didn't do anything about it.
7 "A. Yes. 7 "Q. Earlier you mentioned that On Par was, in your
8 "Q. And then in the next few years, he would occasionally come 8 understanding, violating the terms of its collective bargaining
9 to association events like golf outings and Christmas parties 9 agreement. Do you have an understanding as to how On Par was
10 and that kind of stuff? 10 violating it's CBA?
11 "A. Yes. 11 "A. Well he wasn't paying the men the agreed-upon wage.
12 "Q. Did you ever talk to James Murray outside of that kind of 12 "Q. Anything else?
13 event? 13 "A. That's basically what it would be."
14 "A. Outside an association? 14 MR. GARDNER: Your Honor, could I -- I have one
15 "Q. Outside an association event or a party? 15 question for the Court in terms of the procedure in doing this.
16 "A. Yes. I could have saw him at something else. 16 Can we come up?
17 "Q. You could have, but do you recall if you did? 17 THE COURT: Yes.
18 "A. I'm not one hundred percent sure. No, I can't -- I don't 18 (Continued on next page)
19 recall. 19
20 "Q. Did you ever do business with James Murray? 20
21 "A. I never did business with James Murray himself. 21
22 "Q. Earlier you mentioned Walter Mack as an independent 22
23 investigator? 23
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Page 686 Page 688
(At the sidebar) aide.
2 MR. GARDNER: My difficulty in the procedure is 2 MR. GARDNER: Can I put in on my case a reading of the
there's no reference to what the charges are here. They're deposition and pointing out which portions are charged?
3 reading an entire transcript and letting the jury draw 3 I want to put before the jury the portions that are
conclusions or not. Is there some way to designate or talk charged in the indictment rather than this kind of amorphous --
4 about what the actual charges are rather than just -- 4 THE COURT: But, again, the indictment is going to be
5 THE COURT: At some point the indictment is going to 5 given to the jury.
6 be part of the record. The jury will be given a copy of it and 6 MR. GARDNER: If -- I'd like to be able to read it in
7 during closing arguments the government is going to indicate 7 context and say okay here's this portion, this is the charged
8 what they thought was not truthful about the answers the client 8 offense. Okay. Let's keep reading.
9 gave. 9 MR. LANPHER: That's your closing argument.
10 MR. GARDNER: But the problem is we're now reading 10 MR. GARDNER: How do I do it without being able to
11 into the record a long portion, and most of it is not charged 11 read like this on my case and pointing out what's charged.
12 in the indictment. So, you're asking for some sort of 12 MR. LANPHER: That's your closing argument.
13 confusion from the jury as to these portions that are coming 13 THE COURT: At that point the entire record will be in
14 up. If we don't have a designation, okay, now this is a charge 14 evidence and you can quote from evidence and interpret it any
15 in the indictment, boom, now keep reading. Okay. Now this is 15 way you please.
16 the charge in the indictment, boom. Otherwise I'm prohibited 16 MR. GARDNER: Okay. I guess I'll ask after their case
17 from saying, okay, what's actually charged here. 17 if I can do that, perhaps if I want to, put on my own witness
18 MR. LANPHER: Your Honor, let me point out that 18 and do a read-through, pointing out where the perjury charges
19 previously Mr. Gardner has made a big point of ensuring that we19 are.
20 put the entire transcript in front of the jury so that nothing 20 MR. LANPHER: It still does not seem proper for a
21 can be taken out of context. That's what we're doing. 21 witness. That's a proper tactic for a closing argument, I
22 When the charge is given to the jury they will see the 22 think.
23 indictment. They will have ample time to point out what is and 23 MR. GARDNER: No. Demonstrative. You're doing this
25 (212) 805-0300 25 (212) 805-0300
Page 687 Page 689
is not charged. That's likely to happen tomorrow or Wednesday. as a demonstrative aid for the jury. And you don't want to
2 I certainly don't think there's any confusion that's 2 show the jury what's charged as perjury. All I want to do is
at risk here. If anything, there is no prejudice here because, do this as a demonstrative aid.
3 as he's requested all along, we're putting the full transcript 3 THE COURT: This is not -- this is substantive
in front of the jury. testimony.
4 MR. GARDNER: The only purpose to read the full 4 MR. GARDNER: As to what? It's not the perjury --
5 transcript like we're doing now without pointing out what the 5 they're not doing it as to perjury. They're not showing the
6 perjury charges are is to try to cause confusion because they 6 jury what's charged.
7 charge perjury. 7 THE COURT: Again, we're going to close this loop at
8 MR. LANPHER: That's not true. 8 some point, okay.
9 MR. GARDNER: Judge, they're little minor issues. So 9 (Continued on next page)
10 they are going to talk about these other issues that aren't 10
11 charged in the indictment. And it's asking for the jury to 11
12 find something that's not part of it. 12
13 MR. LANPHER: That's not true at all. 13
14 THE COURT: At some point the government is going to 14
15 close the circle, again, by putting in the indictment and 15
16 highlighting in the indictment which portions they claim are 16
17 not true. And you can argue in your closing arguments. 17
18 MR. GARDNER: But I can't ask the witness about it, or 18
19 can I question the witness? 19
20 THE COURT: This witness is not here as a fact 20
21 witness. This witness is being asked to read the transcript of 21
22 a deposition. 22
23 MR. LANPHER: He's not even a witness. It's just an 23
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Page 690 Page 692
(In open court) application. Most of them call up and we send it out to them
2 MR. LANPHER: May I proceed your Honor? 2 because they want to know information about the association.
THE COURT: Yes. So they call us up. And then we run D & Bs, Dunn & Brads, on
3 Q. I lost my place. I believe we're at the top of 192? 3 the companies. And we call all the unions to see if they are
A. Correct. current, if they don't have any deficiencies before we accept
4 Q. Line 3. 4 them.
5 "Q. When did you first become aware of that? 5 "Q. And all that checked out for On Par?
6 "A. Well, I became aware of it when the attorneys in the 6 "A. Everything checked out for On Par. If it doesn't check
7 delinquency, who do the delinquency had stated that they had a 7 out, we don't accept them as a contractor.
8 delinquency. They found the delinquency on On Par for 8 "Q. Do you know how long On Par had been in business as a
9 violating the agreement and not paying the wage to the men. 9 contractor before joining Wall Ceiling?
10 "Q. Do you recall when that was? 10 "A. I would have to look at his application.
11 "A. That was after I had set up the meeting for him to meet to 11 "Q. Do you know approximately how long?
12 discuss his audit delinquency. 12 "A. I'm sorry. I don't.
13 "Q. After you met with James Murray about his audit delinquency13 "Q. After On Par became a member of Wall Ceiling, do you know
14 what happened to On Par? 14 how On Par went about getting jobs?
15 "A. What happened to him? 15 "A. What? Could you repeat that.
16 "Q. Yes. 16 "Q. How did On Par go about getting jobs, getting work?
17 "A. Immediately after? 17 "A. Well, he -- I -- from talking with other contractors he was
18 "Q. Well, in the -- did On Par resolve its delinquency? 18 a bidder like other contractors were on jobs.
19 "A. No. He has not resolved his delinquency. 19 "Q. Is that all you know about how he went about getting jobs?
20 "Q. Did you become aware at any time of James Murray being 20 "A. That's all I know.
21 charged in a criminal case? 21 "Q. Have you ever taken any action to obtain work for On Par?
22 "A. No, I hadn't. 22 "A. No, I have not.
23 "Q. Do you know where James Murray is now? 23 "Q. Do you know if James Murray owns any other companies or at
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Page 691 Page 693

"A. No, I don't. any time owned any other companies?
2 "Q. When was the last time you saw him? 2 "A. Not to my knowledge.
"A. Three years ago. "Q. Have any of your companies, the companies that you owned,
3 "Q. To the best you can recall, what year is the last time you 3 ever worked on the same job site as On Par?
saw him? "A. Not to my knowledge.
4 "A. Okay. We're in 2007. Early '06 maybe. 4 "Q. Well, if they had, would you know?
5 "Q. Is On Par still a member of the Wall Ceiling Association? 5 "A. Yes.
6 "A. No. We removed him. The board had a meeting, removed him 6 "Q. So --
7 as a member for violating the collective bargaining agreement. 7 "A. No, not to my knowledge. Well, I'm the first one on the
8 "Q. Do you know when that was? 8 job and then I'm gone.
9 "A. I don't know exactly when it was but it was around the time 9 "Q. Because you're the excavator?
10 that the delinquency came out that he was violating his 10 "A. Yes. So I don't know who comes after me. I get, you know,
11 collective bargaining agreement. 11 I would be the first guy there and then I would leave.
12 "Q. Was the board's action to remove On Par before or after the 12 "Q. You said one of your -- your said several of your companies
13 last time you saw James Murray? 13 leased equipment to other contractors; is that right?
14 "A. I'm not one hundred percent sure but I'll say after. 14 "A. Yes.
15 "Q. How did it come about that On Par joined the Wall & Ceiling 15 "Q. Did any of your companies ever lease equipment to On Par?
16 Association? 16 "A. My excavation company?
17 "A. He filled out an application and he sent his application in 17 "Q. Yes.
18 for review by the board of directors. 18 "A. No.
19 "Q. And that's the standard procedure for joining? 19 "Q. Do you know if James Murray has any association with
20 "A. Standard procedure for everyone. 20 organized crime?
21 "Q. So you don't need a reference or a recommendation or 21 "A. I have no idea.
22 anything like that? 22 "Q. Do you know if he's ever had any contacts with any person
23 "A. If you have a recommendation you can note it on the 23 who's been accused by the government as being associated with
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Page 694 Page 696
organized crime? trustees the recoupment deal? Is that accurate?
2 "A. Not to my knowledge. 2 "A. That was when it was noted that On Par was definitely in
"Q. Now I asked you earlier when you became aware that On Par violation of the agreement, and they didn't know to what extent
3 had been in violation of its collective bargaining agreement. 3 it was, and they had the forensic audits because he had come in
I asked you if you did anything on behalf of the Wall Ceiling and made -- was making a deal. He was going to pay the funds X
4 Association. And I believe you said no. Is that right? Until 4 amount of money. He was working with his -- with the attorneys
5 the time when you removed him. But at the time you learned, 5 for the funds in order to solve whatever situation existed at
6 you did not; is that right? 6 the benefit funds.
7 "A. Did we take action? 7 "Q. So is that the first time you became aware that it was an
8 "Q. Right. 8 actual violation of the collective bargaining agreement?
9 "A. We didn't take action until we found out that he was in 9 "A. Yes.
10 violation of his agreement and that the attorneys had told us 10 "Q. Do you know of a construction job that was performed at
11 that that's what they found, and then we took action against 11 3536 Cambridge Avenue in the Bronx?
12 him. 12 "A. Do I know of it?
13 "Q. At any time after learning that On Par was violating its 13 "Q. Yes.
14 collective bargaining agreement, did you take any action in 14 "A. I know -- let's see, yes, I know of it.
15 your capacity as trustee of the district council benefit funds? 15 "Q. What do you know about that job?
16 "A. When the attorneys at the trust fund meeting told us about, 16 "A. Could you repeat the whole thing?
17 that they had taken action on On Par and they told us exactly 17 "Q. What do you know about the job, the construction job
18 what they had done, they had been working with the government, 18 performed at 3536 Cambridge Avenue in the Bronx?
19 okay, and had worked out a deal with the government to try and 19 "A. Just the address. I'm trying to wonder about the address.
20 recoup the money that he underpaid the funds, so we all 20 I did some excavation work in that area once.
21 approved the attorneys working on that. 21 "Q. In what neighborhood of the Bronx is that in?
22 "Q. When did you have that discussion? 22 "A. I think it's Riverdale. I'm not positive about the
23 "A. Exactly when? 23 address.
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Page 695 Page 697
"Q. To the best you can recall? "Q. Do you recall when that excavation work you just referred
2 "A. A couple of years ago. 2 to took place?
"Q. A couple meaning about two? "A. About three, four years ago.
3 "A. I'm not one hundred percent sure. 3 "Q. And what company did this excavation work?
"Q. Was that conversation before or after the Wall Ceiling "A. DNO.
4 Association took action to remove On Par as a member? 4 "Q. And DNO did it itself? It didn't contract out?
5 "A. That was around the same time because our -- what we did 5 "A. No.
6 was based on information that the attorneys had given. 6 "Q. It didn't lease the equipment?
7 "Q. At the time you had that meeting with the benefit funds 7 "A. By itself.
8 about the recoupment, how long had you known that On Par had 8 "Q. What kind of project was being built at that job?
9 been violating its CBA? 9 "A. They were doing a residential building there.
10 "A. How long did I know? 10 "Q. What work exactly did your company do, DNO?
11 "Q. Yes. 11 "A. We did some excavation work and rock breaking.
12 "A. I never knew he was in violation until that final forensic 12 "Q. So what does that mean?
13 audit had come about, you know, when you go to these audits. I13 "A. We dug the hole.
14 have very large contractors. And for them to owe two, three 14 "Q. For the foundation?
15 hundred thousand dollars, you know, an initial audit is normal 15 "A. For the foundation.
16 until they get the opportunity to say: Oh, this was a painter, 16 "Q. Any other work?
17 or this was a taper. It should be on the audit. So we had no 17 "A. No, that's all.
18 idea when the initial audit came out until after it was 18 "Q. Do you know the names of any other contracting companies
19 reviewed. And it kept going on, and on, and on. 19 that came on the job after the excavation work?
20 "Q. So the first time -- is it fair to say that the first time 20 "A. No. I have no idea.
21 that you became aware that On Par was in violation of its 21 "Q. Do you know the names of any other contracting companies
22 collective bargaining agreement was at this meeting that you 22 that worked on that site at any time?
23 just described where you were discussing with the benefit funds 23 "A. No, I don't.
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Page 698 Page 700
"Q. How did you come to do that work, that excavation work? "A. No, I don't.
2 "A. I had met a gentleman who was doing the projects in the 2 "Q. Do you know if James Murray has any association with Burkes
area and I asked him if I could bid on the work. bar or ever did?
3 "Q. Who was that person? 3 "A. Not to my knowledge.
"A. I don't recall his name right now. "Q. Do you know if James Murray ever used Burkes bar as a
4 "Q. How did you know that person? 4 location to pay carpenters?
5 "A. Someone just told me they were putting up a job in that 5 "A. No, I don't.
6 area. 6 "Q. Do you know a company called Commercial Drywall?
7 "Q. You don't recall who that someone was? 7 "A. Yes. They are a member of association.
8 "A. No, I'm sorry, I don't. 8 "Q. And what do you know about Commercial Drywall?
9 "Q. And that was a competitive bidding process? 9 "A. They are a drywall company.
10 "A. Yes, it was, to the best of my knowledge, I gave him a bid. 10 "Q. Do you know who owns it?
11 "Q. Do you know if there were other bidders? 11 "A. Yes, Larry Cooley.
12 "A. Most likely there were. 12 "Q. Is he the whole owner?
13 "Q. Do you know if there were other bidders? 13 "A. I'm not one hundred percent positive.
14 "A. I don't know. I only put my bid in. I don't know how many 14 "Q. Do you know if there's anyone else who runs or is
15 bids someone gets. 15 associated with Commercial Drywall?
16 "Q. Do you know if -- withdrawn. Did you ever see James Murray16 "A. Not to my knowledge.
17 on that job site or near that job site at the time around the 17 "Q. Do you know someone named Shawn Moran?
18 time you were doing that work? 18 "A. No, I don't.
19 "A. I don't recall seeing Jimmy there. 19 "Q. Commercial Drywall is currently a member of the Wall
20 "Q. Are you aware if either James Murray or any company 20 Ceiling Association?
21 associated with him did any work at that site? 21 "A. Yes.
22 "A. I am unaware of that. 22 "Q. Do you know how long they've been a member of the Wall
23 "Q. Did DNO ever lease its equipment to any member of the Wall23 Ceiling Association?
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Page 699 Page 701

Ceiling Association? "A. Before I became executive director.
2 "A. No. 2 "Q. Do you know how long before?
"Q. Did it lease its equipment to my member of the BCA? "A. No, I don't.
3 "A. No. 3 "Q. Do you know if it's been owned by Larry Cooley the entire
"Q. Have you heard of a company called Meridian Contracting? time that you've been executive director of Wall Ceiling?
4 "A. No. 4 "A. As far as what we have, it's only been Larry Cooley.
5 "Q. Have you ever heard of a company called 915 East 107 5 "Q. What do you mean by as far as what you have?
6 Restaurant Corp.? 6 "A. Well, we have his original application. That's it.
7 "A. No." 7 "Q. So to your knowledge when he applied, when Commercial
8 MR. LANPHER: Skipping to the top of page 205. 8 Drywall applied to join Wall Ceiling, Larry Cooley was the
9 "Q. Do you know if James Murray ever owned a bar or an eating 9 owner?
10 establishment? 10 "A. I'm not one hundred percent sure because he was before my
11 "A. Not to my knowledge. 11 time and I would have to look at the application.
12 "Q. Well have you ever heard of a place called Burkes bar? 12 "Q. Do you know if Commercial Drywall employed district council
13 "A. Yes, I've heard of it. 13 carpenters?
14 "Q. What do you know about Burkes bar? 14 "A. Yes, he did.
15 "A. It's a bar. 15 "Q. He did or he still does?
16 "Q. Have you ever been there? 16 "A. If he's working, I would think he does. I'm not sure if
17 "A. I've been there once or twice, yes. 17 he -- if he's -- I'm not sure if he renewed his bargaining
18 "Q. Where is it? 18 agreement. I'd have to have counsel review that.
19 "A. It's in Mount Vernon. 19 "Q. Well, when is the last bargaining agreement that you know
20 "Q. Do you know who owns it? 20 Commercial Drywall was a party to?
21 "A. No, I don't. 21 "A. 1996.
22 "Q. Do you know who owns any business that used to be on that22 "Q. So the one that ran from '96 to 2001?
23 same site? 23 "A. Yes.
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Page 702 Page 704
"Q. And then after -- withdrawn. How does it work? Does a (In open court)
2 member have to join each specific CBA? 2 THE COURT: Let's come back for a moment to the issue
"A. No. But he has to renew his authority for us to bargain on we discussed at the sidebar raised by Mr. Gardner concerning
3 his part. So our attorney, before the contract expires, he 3 the indictment and the portions that are at issue here in the
will send out a document for the company to renew their perjury charge.
4 bargaining authorization for us. 4 Now, we now have heard the testimony from the
5 "Q. Does every member of the Wall Ceiling Association give the 5 government attorney and also at this point from the
6 association authority to bargain on its behalf? 6 government's agent indicating the portions of a deposition that
7 "A. Every member of the association has to give the association 7 the government alleges contains the perjured testimony. Now we
8 at least bargaining authorization, the one union that we 8 can tell the jury, if the parties would be so inclined, or
9 bargain for. 9 remind them that this is a -- this case involves a charge of
10 "Q. I see. But not all unions? 10 perjury and that the government alleges that the perjury
11 "A. Not all. 11 committed by the defendant is contained in the portions of the
12 "Q. So if Commercial Drywall is still a member of the Wall 12 deposition transcript that has now been read fully to them,
13 Ceiling Association, then they may have given authorization to 13 remind them that an indictment is not evidence, etc., and at
14 bargain with the union other than the district council of 14 that point if Mr. Gardner believes its appropriate the jury can
15 carpenters? 15 be given a copy of the indictment. If he wishes, the
16 "A. Yes. 16 government can post on the screen the portions of the
17 "Q. So you can't be sure whether they have authorized the 17 indictment highlighting those statements that the government
18 association to bargain with the district council? 18 alleges were not truthful. And that will create the more
19 "A. Yes. I can't be sure. 19 precise record that Mr. Gardner appears to want to have
20 "Q. Are you aware if Commercial Drywall ever violated the terms20 testimony about.
21 of its collective -- or of any of its collective bargaining 21 MR. GARDNER: I was going to ask the Court at the
22 agreements? 22 break for at least an instruction to the jury that the
23 "A. Not to my knowledge. 23 indictment contains the charges as to specific statements that
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Page 703 Page 705
"Q. Do you know if there ever came a time when Commercial are contained in the allegations of the indictment and not just
2 Drywall began working on sites where On Par had previously been 2 generally for the jury to decide whether or not there was a
working? misstatement during the deposition as a whole. I would like to
3 "A. Not to my knowledge. 3 show the jury the portions at some point. I think it's
"Q. Do you know if there ever came a time that Commercial particularly important -- for example, Burkes bar, appears
4 Drywall hired workers who had previously worked for On Par? 4 nowhere in the indictment, anything having to do with Burkes
5 "A. I don't get involved with any hiring of carpenters or 5 bar is not charged; yet, there was questioning on direct, and
6 anything like that. 6 then some on cross, and then reading a portion of the
7 "Q. Besides whether you were involved, do you know from any 7 transcript regarding Burkes bar. So we think that that would
8 source? 8 be somewhat confusing to the jury.
9 "A. No. I don't have any idea. 9 I think at least at this point an instruction to the
10 "Q. Did you arrange or facilitate in any way the transfer of 10 jury that there are specific -- that the case is regarding
11 either business or workers from On Par to Commercial Drywall? 11 specific statements, only what's charged in the indictment, not
12 "A. Did I? 12 as to other statements generally for the jury.
13 "Q. Yes. 13 THE COURT: I think it would be appropriate for the
14 "A. No, I never did. 14 Court to remind the jury that although they have been read a
15 "Q. Did anyone at the Wall Ceiling Association either arrange 15 substantial -- some portions of the deposition, there are
16 or facilitate the transfer of business for workers from On Par 16 specific statements in the -- in that deposition that the
17 to Commercial Drywall? 17 government alleges, and the indictment contain what the
18 "A. Not to my knowledge." 18 government alleges are the untruthful statements. But that in
19 MR. LANPHER: Your Honor, that concludes the portion 19 order to place the entire conversations in context, we -- or
20 that we wanted to read back at this point. 20 the government read or had read to them the entire portion of
21 THE COURT: It's 3:25. We'll take our ten minute 21 the relevant testimony and that the indictment itself will
22 afternoon break at this point. (Jury excused) 22 highlight those portions that the government alleges were not
23 23 truthful.
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Page 706 Page 708
1 0ap9oli5 "Joseph Olivieri" 1 0aproli6
MR. GARDNER: Yes, your Honor. I would ask for that THE COURT: All right. I will give the instruction
2 but with the one caveat at some place pointed out that they 2 and the parties can discuss whether they can reach an agreement
will be given to ask -- I know the Court knows how to phrase as to whether the indictment should be handed to them at this
3 this better than I do. The point is it's only the charges -- 3 point or placed on the board, on the screen, with the portions
the statements that are alleged in the indictment on which they the government alleges are not truthful highlighted.
4 will be asked to find whether Mr. Olivieri is guilty or not 4 MR. GARDNER: Thank you.
5 guilty, not generally speaking. 5 THE COURT: Thank you.
6 THE COURT: Of course. I think that's implicit in 6 (Recess)
7 what I just indicated; that although they have been given the 7 THE COURT: Did the parties come to an understanding
8 wider portions of the deposition, it is only because we didn't 8 on the matter we talked about before concerning the indictment?
9 want to just give them isolated snippets. 9 MR. LANPHER: Your Honor, I think both parties agree
10 MR. LANPHER: And we have no problem with that kind of10 that a limiting instruction is appropriate. We remain in
11 limiting instruction. I think we could either confer with 11 disagreement as to whether or not the jurors should be shown
12 defense counsel to draft -- 12 the indictment at this point. The government has a proposed
13 THE COURT: Why don't you confer and see how you may13 limiting instruction for the Court.
14 be able to work it out because frankly I am prepared to give 14 THE COURT: Mr. Gardner?
15 such instruction as soon as the jury comes in. 15 MR. GARDNER: We have a proposed limiting instruction,
16 I, again, say that we're doing this at this point 16 your Honor. We were not able to agree on the same limiting
17 because now the entire deposition relevant to this trial is in 17 instruction. We have something proposed and they do. I think
18 the evidence. And if the parties want to give them the 18 the body of the disagreement, it is most important that there
19 indictment at this point, we can do that too. 19 are specific statements charged in the indictment and it is as
20 MR. LANPHER: I think giving them the indictment may 20 to those specific statements only that the jury will be called
21 confuse the issue but certainly a limiting instruction seems 21 upon to render a decision. It's that last part that is absent
22 fine. 22 from the government's instruction. I can hand up our proposed
23 MR. GARDNER: I'd ask that they would be given the 23 instruction, if your Honor would like to read it.
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Page 707 Page 709
1 0ap9oli5 "Joseph Olivieri" 1 0aproli6
indictment. And also, again, your Honor because it's confusing THE COURT: If you have both, I'll take a look at
2 to a jury that their task is actually only as to whether the 2 them.
highlighted portions in the indictment have been perjured. So MR. LANPHER: I think what the Court said aloud is
3 rather than for them to just pick -- I think that's what the 3 fine. It certainly captured the essence.
Court is doing. You're explaining to the jury it's not for MR. GARDNER: The government's is on the yellow and
4 them to pick whether they think any portion of the deposition 4 the white is ours, your Honor.
5 was a lie, but the government has charged specific portions as 5 THE COURT: I frankly don't see too much material
6 shown in the highlighted portion of the indictment. And either 6 difference between what the parties are saying and these two
7 those or -- it's going to be put to them, either those are lies 7 statements. I'll give them a general statement along the lines
8 or not, whether they're material or not. 8 of what I said to you before.
9 (Continued on next page) 9 Bring in the jury.
10 10 (Continued on next page)
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Page 710 Page 712
1 0aproli6 1 0aproli6 Cooley - direct
(Jury present) A. Yes, I did.
2 MS. ZORNBERG: Your Honor, the government calls as its 2 Q. Did your counsel inform the government that you would take
next witness Lawrence Cooley. the Fifth and refuse to testify at this trial?
3 THE COURT: Before we do that, let me give some 3 MR. GARDNER: Objection, your Honor.
clarifying instructions to the jury with regards to the MS. ZORNBERG: Your Honor, this is the groundwork for
4 testimony that you heard before, which was the reading of 4 the immunity order.
5 portions of the deposition of Mr. Olivieri. You will recall 5 THE COURT: Overruled.
6 that the charge that you will be considering here is a charge 6 Q. You may answer.
7 for perjury, which means essentially lying under oath. 7 A. Yes, he did.
8 You were read a portion of the deposition, and within 8 Q. Did the government then obtain an immunity order?
9 that portion there are statements that the government alleges 9 A. Yes, they did.
10 contain untruthful statements under oath. It is only those 10 Q. I'm showing you now, Mr. Cooley, what has been marked as
11 portions that are part of the charge. But you were read a 11 Government Exhibit 30. Is that the immunity order compelling
12 larger segment of the deposition essentially because it's 12 you to testify here today?
13 important to have a larger segment so that you see the total 13 A. That is correct.
14 context and not to limit only the particular snippets and 14 Q. Under that immunity order, is it your understanding that
15 segments that the government claims contain the untruthful 15 you cannot be prosecuted for your testimony except if you make
16 statements. 16 false statements here today?
17 You will have a copy of the indictment, and the 17 A. That is correct.
18 indictment will highlight the portions of the transcript that 18 Q. Do you know Joseph Olivieri?
19 are relevant with those statements that the government alleges 19 A. Yes, I do.
20 contain the perjury indicated so that during your deliberations 20 Q. Have you been friends for a number of years?
21 you will know exactly what it is the government charges is not 21 A. Yes, we have been.
22 truthful, and anything else is not part of your consideration. 22 Q. Can you describe that friendship.
23 This will become more clear during my instructions and during 23 A. We met first through business, the association, and then,
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Page 711 Page 713
1 0aproli6 1 0aproli6 Cooley - direct
the parties' arguments, when they will interpret what they when we traveled and went to different trade shows, etc., we
2 believe the evidence showed. 2 became closer, we became friends.
Again bear in mind, and I will remind you of this Q. When you say the association, are you referring to The Wall
3 many, many times between now and the instructions, the 3 & Ceiling Association?
indictment is not evidence, it is only a statement of the
A. That's correct.
4 charges that the government has made and which it must prove
4 Q. Did you ever hold a position with The Wall & Ceiling
beyond a reasonable doubt.
5 Association
5 All right.
LAWRENCE COOLEY, 6 A. Yes. I was president in 1990 or '91, and then I was a
6 7 board member after that until I resigned.
7 called as a witness by the government, 8 Q. When did you resign?
8 9 A. Around 2004.
9 having been duly sworn, testified as follows: 10 Q. You were on the board of The Wall & Ceiling Association for
10 THE COURT: Please speak into the microphone as 11 approximately 14 years?
11 closely as possible. State your name and spell it for the 12 A. Approximately, yes.
12 record. 13 Q. What do you do for a living currently?
13 THE WITNESS: Lawrence J. Cooley, L-A-W-R-E-N-C-E 14 A. I work for the County of Suffolk.
14 C-O-O-L-E-Y. 15 Q. Doing what?
15 DIRECT EXAMINATION 16 A. I'm in the labor department.
16 BY MS. ZORNBERG:
17 Q. What is your title?
17 Q. Mr. Cooley, how old are you?
18 A. Senior deputy commissioner.
18 A. 69.
19 Q. How long have you held that position?
19 Q. Do people who know you sometimes call you Larry?
20 A. Yes, they do. 20 A. Since March 1st of 2004.
21 Q. Were you subpoenaed to testify here today? 21 Q. Did you resign from The Wall & Ceiling Association around
22 A. Yes, I was. 22 the time you became the deputy commissioner of labor for
23 Q. After you were subpoenaed, did you retain counsel? 23 Suffolk County?
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Page 714 Page 716
1 0aproli6 Cooley - direct 1 0aproli6 Cooley - direct
A. Approximately. make a larger profit.
2 Q. Is that a salaried position? 2 Q. In return for those payoffs, what were you allowed to do in
A. Yes, it is. operating Commercial Drywall?
3 Q. Is it full time? 3 A. There was a 50-50 arrangement as far as having men from the
A. Yes, it is. union come to match with your men. I would sometimes be able
4 Q. Is it appointed or elected? 4 to change that percentage from 50-50 maybe to 90-10. I was
5 A. It's appointed. 5 allowed to work longer hours. Whatever. Individual agreements
6 Q. Prior to becoming the deputy commissioner of labor in March 6 varied depending on individual people that you were doing
7 of 2004, what did you do for a living? 7 business with.
8 A. I had a drywall company. 8 Q. Did you pay cash to your carpenters on Commercial Drywall
9 Q. What was it called? 9 job sites?
10 A. Commercial Drywall, Inc. 10 A. Yes, I did.
11 Q. Were you the owner of that company? 11 Q. Did you fail to pay benefit contributions for at least a
12 A. Yes, I was. 12 portion of your employees?
13 Q. What kind of work did Commercial Drywall do? 13 A. Yes, I did.
14 A. We did interiors of structures. No outside work. We 14 Q. Did you engage in that conduct even while serving as the
15 finished off GAP stores, phone company buildings with drywall 15 president of The Wall & Ceiling Association?
16 petitions, metal studies, acoustic ceilings. 16 A. No, I didn't. That was only for the one year 1990, and I
17 Q. Was Commercial Drywall a union company? 17 hadn't really gotten into that at that point.
18 A. Yes, it was. 18 Q. Is it fair to say that you engaged in payoffs to union
19 Q. As a union company, was it a party to a collective 19 officers while on the board of The Wall & Ceiling Association?
20 bargaining agreement with the District Council of Carpenters? 20 A. Yes, I did.
21 A. Yes, it was. 21 Q. Did you talk about that with other people?
22 Q. Was Commercial Drywall also a member of The Wall & Ceiling 22 A. No.
23 Association? 23 Q. I want to direct your attention now to the time period in
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Page 715 Page 717

A. Yes, it was. late 2004-early 2005. Where were you working at that time?
2 Q. Sir, when did you start Commercial Drywall? 2 A. I was working for the county in Hauppauge, New York.
A. Approximately 1982, '81. Q. Can you describe what Commercial Drywall's financial
3 Q. What would you say were the company's most active years? 3 condition was at that time.
A. Probably '85 to '95. A. Pretty poor.
4 Q. After that did Commercial Drywall's business slow down? 4 Q. Did you owe back taxes?
5 A. Yes, it did. 5 A. Yes, I did.
6 Q. As of the time that you became deputy commissioner of labor 6 Q. As of late 2004 did Commercial Drywall have an office?
7 in March of 2004, how active was Commercial Drywall? 7 A. Not really, no.
8 A. For all purposes we were slow or gone, not really a viable 8 Q. Did it have any regular employees?
9 company anymore. 9 A. No.
10 Q. During the years that you actively ran Commercial Drywall, 10 Q. Did the corporate shell, though, still exist?
11 did you make cash payoffs to officers of the carpenters union? 11 A. Yes, it did.
12 A. Yes, I did. 12 Q. Was Commercial Drywall still a member of The Wall & Ceiling
13 Q. To whom? 13 Association?
14 A. Whoever I had to to make my jobs run smoothly. 14 A. Yes.
15 Q. Did you pay off Mike Forde? 15 Q. As of late 2004-early 2005, were you close with Joseph
16 A. Yes. 16 Olivieri?
17 Q. Was he the head of the union? 17 A. Yes, I was.
18 A. Yes. 18 Q. Approximately how often did you see him?
19 Q. Did you make payments to shop stewards and business agents? 19 A. We had monthly meetings with the association, and then we
20 A. Correct, yes, I did. 20 had board meetings. There would be other times when we might
21 Q. For what reason did you do that and what did you get in 21 just have lunch once in a while.
22 return? 22 Q. Did you discuss with Mr. Olivieri your company's struggling
23 A. To increase the productivity of my jobs so that I could 23 financial condition?
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Page 718 Page 720
A. Yes. A. A good portion of it. It ended with just Mr. Murray and
2 Q. Is that something you discussed with him once or more than 2 myself, but Joe was there for a good portion of it.
once? Q. What was discussed about why Mr. Murray needed to transfer
3 A. Probably once or twice. 3 his jobs from On Par to Commercial?
Q. Did he know that your company was in debt? A. He was having some difficulty with audits and problems in
4 A. Yes. 4 the city with the carpenters, and he felt he needed another
5 Q. Did there come a time when you met an individual named Jim 5 vehicle to ease the burden or the problems that that was
6 Murray? 6 creating.
7 A. Yes. 7 Q. Did the name Walter Mack come up at the meeting?
8 Q. Who introduced you to Jim Murray? 8 A. Once or twice.
9 A. Joe did, Joe Olivieri. 9 Q. What was discussed about whether you would stay on at
10 Q. Where did you meet Mr. Murray for the first time? 10 Commercial Drywall in some capacity?
11 A. In a restaurant in Hicksville called the IHOP. 11 A. It was just the fact that it wasn't going to be my company
12 Q. Who set that meeting up? 12 anymore but I was going to be there as a figurehead.
13 A. Joe Olivieri did. 13 Q. How did the IHOP meeting end?
14 Q. Can you recall specifically when this IHOP meeting took 14 A. That we would get together again in the future, in the near
15 place? 15 future. I had to get some stuff together for them, and I guess
16 A. Not accurately. Let me see. I would say it had to be 16 he wanted to talk to his accountant.
17 sometime in late '04. I don't have any records on it. 17 Q. After that IHOP meeting, did you have additional meetings
18 Q. Can you describe how the IHOP meeting came to be set up by 18 with Jim Murray to work out a deal?
19 Mr. Olivieri? 19 A. Yes, I did.
20 A. Being I was struggling and the company wasn't doing well, 20 Q. At some point were you introduced to an individual named
21 Joe brought to my attention that there might be someone who was 21 Shawn Moran?
22 interested in buying a company that had some losses. I had 22 A. Yes, I was.
23 losses. And would I be interested. I said yes. 23 Q. What was his role to be?
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Page 719 Page 721
Q. Who was present at the IHOP meeting that day? A. He was actually going to run the day-to-day operation of
2 A. Myself, Jim Murray, and Joe Olivieri. 2 the company, which he eventually did.
Q. You said this was the first time you met Mr. Murray? Q. After that IHOP meeting, did you continue to speak to
3 A. That's correct. 3 Joseph Olivieri about your dealings with Jim Murray?
Q. What did you know of Mr. Murray at the time? A. On occasion, yes.
4 A. He was somewhat of a legend in our industry in the way he 4 Q. What was Mr. Olivieri's view as expressed to you of whether
5 did business, an interesting character, if you want to call it 5 this was a good deal?
6 that, but a successful one. 6 A. He thought it was a good deal, and actually, to be honest
7 Q. When you say he was a legend in how he did business, what 7 with you, so did I.
8 do you mean? 8 Q. Did you and Mr. Murray reach a deal?
9 A. He seemed to be able to maneuver through the difficulties 9 A. Yes, we did.
10 that most other contractors, including myself, had. 10 Q. Was that deal an oral agreement or a written agreement?
11 Q. Did you know what Mr. Murray's company was called? 11 A. Strictly oral.
12 A. On Par. 12 Q. Under your oral agreement, what was Mr. Murray to do for
13 Q. What was discussed at the IHOP meeting? 13 you?
14 A. The fact that he'd be interested in helping me out of my 14 A. He was to take care of X number of dollars worth of
15 financial predicament and that he would then -- we had a limit. 15 financial problems that I had. I think we put a cap on it of
16 We discussed what the maximum amount would be for the help. He 16 $85,000. And I was giving him the use of the company.
17 would then transfer some work that he was doing at the moment 17 Q. As part of the agreement with Mr. Murray, did you agree to
18 from other companies into Commercial and do the work with 18 stay on as a figurehead, to use your word?
19 Commercial. 19 A. Yes, but not anything to do with the day-to-day operations.
20 Q. Was it discussed at the meeting that Mr. Murray intended to 20 Strictly occasionally to take care of a problem or see someone
21 transfer On Par jobs to Commercial Drywall? 21 to let them know that I was there and not him.
22 A. Yes, it was. 22 Q. At the time were you in good standing with the union?
23 Q. Was Mr. Olivieri there for most of the meeting? 23 A. Yes.
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Page 722 Page 724
Q. You were deputy commissioner of labor, right? Q. Did there come a time, Mr. Cooley, when you were
2 A. Right. I had no union problems, no. 2 interviewed by the FBI?
Q. As part of your agreement with Mr. Murray, did you receive A. Yes, there was.
3 any compensation? 3 Q. Do you recall the date?
A. Yes, I did. A. August 18, 2004.
4 Q. How much? 4 Q. Could it have been 2005?
5 A. I don't have the exact figure, but it was like I got $2,000 5 A. Pardon me? '05? OK, '05. It was August. August I
6 a week for probably a year and a half, and a car. The car was 6 remember was the time. It was 6:30 in the morning.
7 leased. At the end of the lease, I gave it back. 7 Q. Mr. Cooley, I'm putting something before you which you
8 Q. Did On Par in fact transfer its jobs to Commercial Drywall? 8 should not read aloud. Just take a look at it and see if it
9 A. Yes, he did. 9 refreshes your recollection as to whether the visit to you by
10 Q. Do you recall approximately when those jobs were 10 the FBI was in August of 2004 or August of 2005.
11 transferred or over what period of time? 11 A. 2005. I stand corrected on that.
12 A. I would say it was pretty close on to the end of '04. I 12 Q. Where did the FBI speak with you that day?
13 don't know exactly. Then it varied. As the jobs or the 13 A. In my living room.
14 particular situation would develop so that a job could be 14 Q. Was your wife present?
15 transferred, it was. 15 A. Yes, she was. I asked them if she could sit in, and they
16 See, the jobs were, some of them, ongoing contracts 16 said it was OK, so she sat there for most of the conversation.
17 with different GC's. We weren't transferring whole contracts; 17 Q. During that meeting with the FBI, were you asked about a
18 it was partial contracts. In other words, he might have a 18 number of individuals?
19 $4 million contract with, let's say, Turner, but he had already 19 A. Yes, I was.
20 completed a million dollars of it. So he was getting Turner to 20 Q. Were you asked any questions about Mr. Olivieri?
21 transfer the 3 million that remained on his obligation to 21 A. Yes, I was.
22 another company. 22 Q. What did you do following that visit by the FBI?
23 Q. After you entered into this oral agreement with Mr. Murray, 23 A. I wrote down my thoughts about the visit on a piece of
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Page 723 Page 725
who in fact controlled Commercial Drywall? paper.
2 A. Mr. Murray and Shawn Moran. 2 Q. What did you do with those notes?
Q. What, if anything, did Jim Murray do publicly with A. I copied them and sent them to Mr. Olivieri.
3 Commercial Drywall? 3 Q. Were you close with Mr. Olivieri at that point?
A. I don't understand your question. A. Yes.
4 Q. Were there occasions when you went to the union to meet 4 Q. Did you have other meetings with the FBI in 2005?
5 with individuals about Commercial Drywall matters? 5 A. Yes, I did.
6 A. Once in a while, yes, I occasionally would do that. But 6 Q. Did you meet with the FBI voluntarily?
7 nothing of a serious nature. 7 A. Yes, I did.
8 Q. On those occasions, though, when you went on behalf of 8 Q. Were you always truthful during those meetings?
9 Commercial Drywall to the district council, did Mr. Murray 9 A. No, I wasn't.
10 accompany you? 10 Q. During any of your meetings with the FBI in 2005, were you
11 A. No. 11 asked about Jim Murray?
12 Q. Did Mr. Murray visit the job sites that were transferred to 12 A. Yes, I was.
13 Commercial Drywall, to your knowledge? 13 Q. Did you tell Jim Murray that the FBI was asking questions
14 A. No. If he did, it was without my knowledge. 14 about him?
15 Q. Was separate office space set up for Commercial Drywall? 15 A. Yes, I did.
16 A. Yes, there was. We had two locations over the period. 16 Q. Did there come a time when you retained an attorney to
17 Q. Were those separate locations from On Par? 17 represent you?
18 A. Oh, yes, definitely. 18 A. Yes, I did.
19 Q. Going back to my earlier question, was there anything, to 19 Q. Who supplied the money for you to retain an attorney?
20 your knowledge, that Jim Murray did publicly with Commercial 20 A. Mr. Murray.
21 Drywall to let the union know that he was controlling 21 Q. Did there come a time when you met with Mr. Murray in a
22 Commercial Drywall? 22 graveyard?
23 A. No. 23 A. Yes, I did.
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Page 726 Page 728
1 0aproli6 Cooley - direct 1 0aproli6 Cooley - cross
Q. How did that meeting come about? Q. Did you talk to him about the meeting afterwards?
2 A. It was getting kind of sticky and I felt that I should -- 2 A. I'd have to say probably not, but I don't recall. I
and I was concerned about they were probably watching him. I honestly don't recall.
3 was uncomfortable, so I wanted someplace where I could see 3 Q. You talked at the beginning of your testimony about making
everything that was going on in front of me. It just seemed payments some many years ago?
4 like a likely spot, convenient. 4 A. Yes.
5 Q. Who picked the graveyard location? 5 Q. To some union officials. It's fair to say you never made a
6 A. I did. 6 payment to Joseph Olivieri?
7 Q. What did you discuss with Mr. Murray at the graveyard? 7 A. Absolutely not.
8 A. Everything that -- 8 Q. Joseph Olivieri never asked you for a payment, correct?
9 MR. GARDNER: Objection, your Honor. 9 A. Absolutely not.
10 THE COURT: Sustained as to form. 10 Q. He did introduce you to Jim Murray at the IHOP, correct?
11 Q. Did you have a discussion with Mr. Murray at the graveyard?11 A. Yes, he did.
12 A. Yes, I did. 12 Q. He was there, I think you said, for some of that meeting,
13 Q. About what? 13 right?
14 A. I had a sense that the FBI was closing in on him a little 14 A. For a good portion of it, yes.
15 tighter than he was aware of, so I wanted to make him aware of 15 Q. You recounted for the government certain things that were
16 that, talk to him about that. 16 discussed at that meeting. Do you recall if Olivieri was
17 Q. How did the meeting come to an end? 17 present during that conversation, or you're not sure?
18 A. We parted company. He lent me $50,000 to pay for legal 18 A. I'm not comfortable -- he probably was there for a good
19 fees. Then, I actually never saw him after that. 19 portion of it. We had breakfast. We ate. I had a little
20 Q. Did there come a time when you learned that Mr. Murray had20 something to eat. He would be there while we were eating. So
21 fled the country? 21 we were eating and talking.
22 A. Yes, that's correct. 22 Q. But you're not sure which portion --
23 Q. Where did he go? 23 A. He didn't stay for the whole meeting, no. And I'm not sure
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Page 727 Page 729
1 0aproli6 Cooley - direct 1 0aproli6 Cooley - cross
A. Ireland. what was discussed when and whether he was there or not. I'm
2 Q. Did you have any communications with Mr. Murray while he 2 saying he --
was in Ireland? Q. That's all I'm asking, is whether you're sure or not.
3 A. One. 3 A. Yes.
Q. What was that? Q. Let me back up for a second. In terms of legal ownership
4 A. He called to offer condolences when my wife passed away. 4 of Commercial, did that ever transfer to Jim Murray?
5 It was quite a bit after she died, but he just had found out 5 A. No.
6 about it, supposedly. He called me. It was a minute-and- 6 Q. When you did do business, though, after you worked out an
7 30-second phonecall, which I registered with the attorney that 7 arrangement with Mr. Murray, when Commercial was doing business
8 I had at the current time. 8 at that point, did Commercial do its business I'm going to say
9 MS. ZORNBERG: May I have a moment, your Honor? 9 legitimately, paying carpenters their full union benefits and
10 No further questions. 10 wages?
11 THE COURT: Mr. Gardner? 11 A. That was the way it was supposed to be and as far as I know
12 CROSS-EXAMINATION 12 it was. But let me just expand on something you just brought
13 BY MR. GARDNER: 13 up. My financial problems were so difficult at the time that
14 Q. Good afternoon, Mr. Cooley. 14 he couldn't get some things taken care of, so an additional
15 A. Good afternoon. 15 Commercial Drywall was formed. The Commercial Drywall that was
16 Q. My name is Brian Gardner. I represent Joe Olivieri. 16 used for the transfer of the contracts was not the Commercial
17 A. OK. 17 Drywall that was mine. There were two of them existing at the
18 Q. I just have a few questions. You testified about a 18 same time. Mine is still in the same financial straits. The
19 graveyard meeting. Did Mr. Olivieri know that that meeting was 19 company that transferred was the company that they made up,
20 going to take place? 20 another company with the exact same name. I only mention that
21 A. No. 21 because you seemed to be going in that direction.
22 Q. Was he present for it? 22 Q. The name was exactly the same?
23 A. No, he wasn't. 23 A. Exactly the same, Commercial Drywall, Inc.
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Page 730 Page 732
1 0aproli6 Cooley - cross 1 0aproli6 Cooley - cross
Q. Who owned that company? know what carpenters, former carpenters, new carpenters, were
2 A. Shawn Moran, and -- I didn't, because I was selling 2 working on these job sites, would he?
ostensibly what was my company to them. Whatever they did, A. Not that I know of. It would be almost impossible.
3 someone else owned it, not I. 3 Q. He didn't get involved, "he" being Joe Olivieri, I'm sorry,
Q. You don't know who owned it? didn't get involved in hiring carpenters or determining which
4 A. I'm assuming Shawn Moran, because he signed a lot of stuff. 4 carpenters went to a particular site, as far as you know?
5 Q. As far as Joe Olivieri knew, your understanding when he 5 A. No.
6 introduced you to Jim Murray is that Jim Murray and you would 6 Q. He didn't, right?
7 do something together regarding your current company, right? 7 A. No.
8 A. That's -- 8 MR. GARDNER: No further questions, Judge. Thank you.
9 MS. ZORNBERG: Objection to form and to questions 9 THE COURT: Ms. Zornberg?
10 about someone else's knowledge. 10 REDIRECT EXAMINATION
11 THE COURT: Sustained. 11 BY MS. ZORNBERG:
12 Q. Let me ask you about your understanding. Is that as to 12 Q. Mr. Olivieri -- I'm sorry. Mr. Cooley, you were just asked
13 your understanding of what the meeting was about? 13 whether Joseph Olivieri knew which carpenters were sent to
14 A. Yes. 14 specific job sites, correct?
15 Q. When I say your understanding what the meeting was about 15-- A. Yes.
16 A. To help me give my company to Jim Murray. 16 Q. Mr. Olivieri just brokered the deal, didn't he?
17 Q. At some point you did enter into this oral agreement with 17 MR. GARDNER: Objection, your Honor.
18 Jim Murray? 18 THE COURT: Sustained.
19 A. That's correct. 19 A. Let me --
20 Q. At some point, maybe I'm confused, one of the Commercials,20 THE COURT: Sustained. You needn't answer.
21 either your Commercial -- 21 MS. ZORNBERG: No further questions.
22 A. I'm just as confused as you. I really at this point don't 22 THE COURT: Thank you. You may step down.
23 know. 23 THE WITNESS: Do I leave these here?
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Page 731 Page 733
1 0aproli6 Cooley - cross 1 0aproli6
Q. Let's just say one Commercial. One of the Commercial MR. GARDNER: You can.
2 companies did begin doing work? 2 THE COURT: Yes.
A. Correct. (Witness excused)
3 Q. Pursuant to the oral agreement with Jim Murray, right? 3 THE COURT: Ms. Zornberg?
A. Right. MR. LANPHER: Your Honor, as its next witness, the
4 Q. That work, as far as you understood it, was fully, 4 government calls John Greaney.
5 correctly union and the union benefits were paid? 5 MS. ZORNBERG: Your Honor, we seem to have left
6 A. That was the arrangement that was discussed: That he told 6 something in our trial room downstairs that we need for this
7 Shawn Moran, who ran everything, that there could be no errors. 7 witness. May I have just a moment to run down and get it?
8 Q. No funny business? 8 THE COURT: Yes. If the jurors wish to stand and
9 A. No funny business. It had to be done 100 percent. 9 stretch or move around, you may.
10 Q. With regard to the actual details of which job site 10 MR. LANPHER: Your Honor, defense counsel has an issue
11 Commercial was working on or whether or not that job site had 11 we would he did like to raise.
12 previously been worked on by On Par, Joe Olivieri was not 12 (At the side bar)
13 provided with that information, was he? 13 MR. GARDNER: Your Honor, Mr. Greaney will be the
14 A. Not to my knowledge. 14 subject I think of quite a number of objections on my part. I
15 Q. Joe Olivieri was not provided with the information as to 15 think the Court had previously indicated he has to see the
16 whether or not, again after the oral agreement, whether or not 16 testimony coming in. It is our position that his entire
17 which workers, which carpenters, were actually performing the 17 testimony is irrelevant to this proceeding. It is simply to
18 work under the name Commercial, was it? 18 try to paint Mr. Olivieri by association with regard to Mr.
19 A. Not that I know of. Not by me anyway. I didn't have that 19 Greaney. I don't know what particular testimony they want to
20 knowledge to give out. 20 bring out, but if there are any other bad acts or anything like
21 Q. You wouldn't have even know which carpenters? 21 that that are unrelated to the perjury, I'd ask the government
22 A. No. 22 to limit itself away from that.
23 Q. Joe Olivieri certainly, as far as you understood, wouldn't 23 THE COURT: Let's have a good faith proffer.
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Page 734 Page 736
1 0aproli6 1 0aproli6
MR. LANPHER: Certainly, your Honor. The testimony I deposition.
2 expect to elicit from Mr. Greaney is, first, a little bit of 2 MR. LANPHER: All of it goes to weight.
his own background and his own involvement with Jim Murray, THE COURT: I agree it is relevant, it goes to weight.
3 which will be fairly brief summary questions asking him to 3 A reasonable juror could draw an inference that if Mr. Olivieri
describe his own conduct. Then, the real key testimony about thinks that Mr. Murray is never coming back, that frame of mind
4 Mr. Olivieri relates to later on, once investigations with Mr. 4 may influence whether or not he testifies truthfully.
5 Mack, Walter Mack, have really heated up, he has two 5 (Continued on next page)
6 conversations with Joseph Olivieri at a diner in Yonkers. 6
7 The first one is where Mr. Olivieri is expressing his 7
8 concern as to whether or not Mr. Murray is going to cooperate 8
9 or going to be all right, because he has just learned that the 9
10 FBI has gone to see Harry Cooley to talk about On Par. So 10
11 Olivieri goes to John Greaney and asks him, is this guy going 11
12 to be OK? John Greaney says, it's cool, he will be OK, and 12
13 that have that kind of conversation, which I will argue goes to 13
14 consciousness of guilt. 14
15 The second conversation is once Jim Murray is in 15
16 Ireland and rumors start coming around that Jim Murray is going16
17 to cooperate and come back, Joe Olivieri once again reaches out17
18 to John Greaney to find out can we trust this guy, is he going 18
19 to be OK, is he going to cooperate. 19
20 We argue that those conversations are directly 20
21 relevant to Mr. Olivieri's consciousness of guilt, they go to 21
22 his relationship with Jim Murray and certainly come in. As we 22
23 previously said, this witness's testimony is pared down. We 23
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Page 735 Page 737
1 0aproli6 1 0AP9OLI7
should certainly be able to finish it today. I think it is THE COURT: The clerk will administer the oath.
2 absolutely relevant. 2 JOHN GREANEY,
MR. GARDNER: We object to all that he explained in called as a witness by the Government,
3 the proffer, your Honor. Consciousness of guilt, I guess they 3 having been duly sworn, testified as follows:
mean some sort of admission on my client's behalf. The two DIRECT EXAMINATION
4 discussions he is speaking of bear nothing on perjury. They 4 BY MR. LANPHER:
5 want to say they are having a conversation about whether Jim 5 Q. Good afternoon, Mr. Greaney?
6 Murray is going to cooperate and therefore somehow my client is 6 A. Good afternoon.
7 guilty of something. I don't understand how that is an 7 Q. How old are you?
8 admission of anything. 8 A. I'm 51.
9 MR. LANPHER: Certainly a limiting instruction can be 9 Q. Where do you currently live?
10 given, but I think it is absolutely relevant. When Joe 10 A. I'm at MCC, the Manhattan Correctional Center.
11 Olivieri is expressing concern is this guy going to cooperate, 11 Q. Is that a prison?
12 reaching out to somebody he trusts in the union, the jury can 12 A. That's a prison here in the city, yeah.
13 infer that that goes to his thought process, what he thinks at 13 Q. When were you arrested?
14 the time around the same time when he gives the deposition 14 A. I was arrested August 5, 2009.
15 thinking that Jim Murray is never going to come back from 15 Q. What were you charged with doing?
16 Ireland and I'm fine, I can go ahead and lie here because Jim 16 A. Thirteen various counts of which bribery, perjury, wire
17 mer Murray is never going to come back and say otherwise. It 17 fraud, racketeering, conspiracy.
18 absolutely goes to those issues. 18 Q. In general terms, could you describe what you did that led
19 MR. GARDNER: Greaney certainly has a lot of things to 19 you to be arrested?
20 worry about after talking about it, and Joe Olivieri said that 20 A. Yes. I was a corrupted union official.
21 Greaney, is he going to cooperate, something like that. 21 Q. Could you explain that.
22 Greaney is obviously expressing issues. That has nothing to do 22 A. Yes, I can. Basically we were under consent decree, the
23 with whether or not Joe Olivieri perjured himself at a 23 carpenters union, and we have various rules to abide by. It
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Page 738 Page 740
1 0AP9OLI7 Greaney - direct 1 0AP9OLI7 Greaney - direct
was a federal consent decree. And one of those rules was a job lying in depositions and just covering up the whole operation.
2 referral list. And we violated that. We tried to rig it to 2 Q. Was that investigator you mentioned, was that Walter Mack?
get certain people jobs with regard to contractors, one of them A. Yes. That was Walter Mack.
3 being On Par Construction and James Murray. He would go to 3 Q. Could you list out some of the contractors that you took
certain shop stewards and see if they would be available for cash from while you were a business manager of Local 608?
4 certain jobs. They would come to us. And we would manipulate 4 A. Yes. Directly?
5 the out-of-work list to try and get them to be on those jobs. 5 Q. Sure. Directly or payments that you shared in.
6 And then the contractor would hire some illegal 6 A. On Par, Euro Tech, Pitcohn, Turbo, Perimeter, Ess & Vee,
7 immigrants. The shop steward would bring them down to the 7 and others.
8 union hall. We would sign them up. And then he'd bring them 8 Q. And you said you were arrested August 5, 2009?
9 back to the job. 9 A. August 5, 2009, early morning.
10 The shop steward would then not report all the hours 10 Q. And 13 separate charges were brought against you?
11 that these immigrants would have worked, therefore, giving the 11 A. Thirteen charges that were brought against, yes.
12 contractor an unfair advantage over everyone else. He wasn't 12 Q. Did you ultimately plead guilty?
13 paying the benefits, which would have been about $30 an hour. 13 A. Yes. I pled guilty to all of the charges.
14 Those benefits were to have come into our benefit 14 Q. Have you been sentenced yet?
15 funds down at the district council that paid for your pension, 15 A. No, I have not.
16 health benefits, so on and so forth. 16 Q. How much jail time are you facing?
17 For us doing these favors, getting these shop stewards 17 A. With everything combined, I could face a total of 155
18 on, we turned a blind eye to what was going on and allowed this 18 years.
19 to continue. And we received -- myself and other union 19 Q. Who will decide what sentence you receive?
20 officials received cash payments to allow this to happen. 20 A. Pardon me?
21 Q. You used the word "we" a couple of times there. 21 Q. Who will decide your sentence?
22 A. Yes. 22 A. Ultimately, the judge will decide what my sentence is.
23 Q. Who were some of the other union officials you did this 23 Q. Did you plead guilty pursuant to a cooperation agreement
25 (212) 805-0300 25 (212) 805-0300
Page 739 Page 741
with? with the government?
2 A. Okay. Union officials including shop stewards and business 2 A. Yes, I did.
agents, Forde, McGrath, Leary, Deveraux, myself, and others. Q. What is your understanding of what your obligations are
3 Q. Are some of those other people you named other officers of 3 under the terms of that cooperation agreement?
Local 608? MR. GARDNER: Objection, your Honor.
4 A. Yes, they were. 4 THE COURT: Overruled.
5 Q. To be clear, while you were engaged in this conduct, what 5 Q. You may answer.
6 positions did you hold with the union? 6 A. Okay. Number one, to tell the truth; number two, to stay
7 A. In Local 608 I was the president and business manager. And 7 out of trouble; and number three, to cooperate with the
8 within the district council in the middle of 2002, I believe, I 8 government where I can.
9 became trustee of the funds. 9 Q. What is your understanding of what, if anything, the
10 Q. Is that a trustee of the union's benefit funds? 10 government is promising to do under the terms of that
11 A. The union benefit funds, yes. 11 cooperation agreement?
12 Q. Is it fair to say that you were engaged in this conduct for 12 A. The only thing the government has said they will do would
13 over a decade? 13 be to write a letter.
14 A. Not over a decade. I'd say from like 2000 to about 2004 or 14 Q. And what is your understanding of what that letter does for
15 thereabouts. 15 you?
16 Q. After that, did you continue to obstruct investigations 16 A. The letter would help decrease my sentence.
17 into your conduct? 17 Q. Has any --
18 A. Yes. We have a court appointed investigator under the 18 A. Hopefully.
19 consent decree. He was there to monitor various things within 19 Q. Has any promise been made to you regarding what sentence
20 the union. 20 you will ultimately receive?
21 We had a corruption hot line. And he did 21 A. No, sir.
22 investigations. And we tried to hide what we were doing so the 22 MR. LANPHER: Ms. Geier, can we put up Government
23 whole plan wouldn't have been found out. And that included 23 Exhibit 52 in evidence.
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Page 742 Page 744
Q. Mr. Greaney, do you recognize that picture? MR. LANPHER: May I approach, your Honor?
2 A. Yes. That was my boss, Michael Forde. 2 Q. Showing you what's been marked as Government Exhibit 60, do
Q. While you were business manager of Local 608 what was his you recognize that?
3 position? 3 A. Yes. That's the Moth House bar on Kimble Avenue in
A. His title is executive secretary/treasurer which is the Yonkers.
4 head spot for the New York City district council, and the 4 MR. LANPHER: The government offers Government Exhibit
5 district council is over all the various local unions in the 5 60 in evidence.
6 city. 6 MR. GARDNER: Judge, we object.
7 Q. Was he involved in taking bribes from contractors? 7 THE COURT: Admitted. Objection is noted.
8 A. Yes, he was. 8 (Government's Exhibit 60 received in evidence)
9 Q. Could you describe your relationship with Mr. Forde? 9 MR. LANPHER: Ms. Geier could we display Government
10 A. We had a pretty good relationship. He was the president of 10 Exhibit 60.
11 Local 608 while I was an officer in there. And we hung out 11 Q. Did you ever meet Mr. Murray there?
12 together. You know, we drank together. We went hunting. We 12 A. Yes, on two occasions.
13 were political allies. We socialized a lot. We drank. We had 13 Q. For what purpose?
14 done drugs together as well. 14 A. I met him I believe it was around the holidays. And he
15 Q. Let me just follow-up on a couple things. You said you 15 gave me money in the pub.
16 drank. How often were you drinking while you were business 16 Q. Aside from cash payments, did Mr. Murray ever give you
17 manager of Local 608? 17 anything else of value?
18 A. Just about everyday I drank. 18 A. He gave, through one of the business agents, Super Bowl
19 Q. Could you describe about how much? 19 tickets for the Giants when they were in the Super Bowl in
20 A. A lot. I was -- I would basically say I was -- I diagnosed 20 2001, I believe, against the Ravens down in Tampa Bay, he gave
21 myself as an alcoholic. 21 us two tickets to the Super Bowl.
22 Q. You said you did drugs with Mr. Forde. Could you explain 22 Q. And with respect to On Par, what, if anything, did you and
23 that. 23 other union officers do in return for these payments that you
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Page 743 Page 745

A. Yes. Mike was a user of marijuana and cocaine and I used were getting?
2 cocaine on some occasions with him. It started when we would 2 A. We had put the shop stewards that he wanted there and we
go on trips with union conventions and stuff. And then he was didn't follow up and make sure that the benefits that should
3 doing it a lot more. And then I would do it as well during the 3 have been paid to these illegals, we didn't follow up and make
week at times. sure that they were paid into our benefit funds.
4 Q. Now, you said that you were involved in taking cash 4 Q. Did you ever report to the benefit funds that you were
5 payments from On Par, correct? 5 getting cash payments from Jim Murray?
6 A. Yes. 6 A. No, I did not.
7 Q. Was Mr. Forde involved in those payments as well? 7 Q. Did you know that was wrong at the time?
8 A. Yes. Mike was involved as well. 8 A. Yes, I did.
9 Q. Could you explain generally how those bribe payments would 9 Q. Why?
10 work. 10 A. Why what?
11 A. Yeah. At first Mike had -- he'd be dealing with an 11 Q. Why was it wrong?
12 intermediary, I believe, a fellow by the name of Finbar 12 A. Because I was in a position of trust within the union and
13 O'Neill. And he'd get the money from Mr. O'Neill. And then 13 we have a collective bargaining agreement that says the members
14 Mike would give me a call in my office to come downstairs. And 14 should have been getting $30 an hour in benefit payments. And
15 he'd come up and he'd meet -- he wouldn't come up. He'd ask me 15 I should have stepped to the plate and made sure those members
16 to come down and I'd meet him by his car and he'd pass off the 16 were getting what they deserve.
17 money. 17 Q. Mr. Greaney, as a general manner how open were you about
18 And then after that, I met Mr. Murray on at least four 18 the fact that you were receiving bribe payments from On Par?
19 occasions. And two different pubs up in Yonkers. And that's 19 MR. GARDNER: Objection, your Honor.
20 where he had given me some dollars as well. 20 THE COURT: Sustained as to form.
21 Q. How much typically would you get at a time from Mr. Murray? 21 Q. Mr. Greaney, aside from the individuals with whom you
22 A. Well, the four times it ranged from ten thousand down to 22 shared the cash payments from On Par, did you discuss those
23 five thousand. 23 cash payments with other people?
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Page 746 Page 748
A. No, I did not. MR. GARDNER: Objection, your Honor.
2 Q. For example, did you discuss with On Par shop stewards the 2 THE COURT: Overruled.
fact that you were getting cash payments from Jim Murray? THE WITNESS: Yeah. Joe and I became fairly friendly
3 A. No. I never discussed with the shop stewards anything with 3 over the years. Joe would handle all the grievances that my
regards to payments. business agents would have against the companies that he
4 Q. Did you know whether those shop stewards were assisting On4 represented. So I'd often see him down in the council. And
5 Par in defrauding the benefit funds? 5 then when I became trustee in the middle of '02 I would see Joe
6 A. Well, I knew many of them would -- they basically had no 6 more often, you know, monthly, for sure, at the trustee
7 sure jobs. They would come in for a couple of hours in the 7 meetings. And then also I would meet him, you know, during the
8 morning and oftentimes they'd be home by 10:00 in the morning 8 course of regular business, maybe at a grievance. I wouldn't
9 so they were -- in that way they were assisting Mr. Murray. 9 go to too many grievances myself because I was the business
10 Q. Did you discuss with them whether they were getting cash 10 manager. But I'd see him at an odd grievance down at district
11 payments from Mr. Murray? 11 council. And we would joke around. And we'd go on
12 A. No. I wasn't aware at the time that they were getting cash 12 conventions, stuff like that. We'd have dinner together. Hang
13 payments from Mr. Murray. 13 out in general. We'd talk about sports and this and that. A
14 Q. Mr. Greaney, do you know Joseph Olivieri? 14 little bit of everything.
15 A. Yes, I know Joe. 15 Q. Did you tell Mr. Olivieri at any point that you had
16 Q. Around what time did you first meet Mr. Olivieri? 16 received cash payments from Jim Murray?
17 A. I would have met Joe when I became a business agent in 608.17 A. No, I did not.
18 Q. Approximately what year do you think that was? 18 Q. Mr. Greaney, I'm showing you what's been marked as
19 A. I became a business agent around 1997 at some time. So I 19 Government Exhibits 61 and 62. Do you recognize those?
20 would have met Joe during the course of business in the day 20 A. Yes, I do.
21 down at the district council at that time. 21 Q. What are those?
22 Q. At the time what was Mr. Olivieri's job? 22 A. This is -- these are two pictures of the Raceway diner on
23 A. Joe is the head of the Wall & Ceiling Association. It's an 23 Yonkers Avenue, just off the New York thruway.
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Page 747 Page 749
association of approximately 160, 170 union contractors, Q. Have you ever met with Mr. Olivieri there?
2 drywall contractors in New York. 2 A. Yeah. I met with Joe there on two occasions.
Q. At some point was Mr. Olivieri also made a trustee of the MR. LANPHER: Your Honor, the government offers
3 union's benefit funds? 3 Government Exhibits 61 and 62.
A. Yes. Joe was also an employer trustee for the union MR. GARDNER: We object, your Honor.
4 benefit funds. 4 THE COURT: All right. Admitted. Objection is noted.
5 Q. While you were a trustee of the benefit funds, was 5 But let's -- we don't need to go anymore into that. Just
6 Mr. Olivieri as a trustee? 6 proceed.
7 A. Yes, Joe was a trustee, yes. 7 (Government's Exhibits 61 and 62 received in evidence)
8 Q. How would you describe his role on the benefit funds? 8 MR. LANPHER: Well, Ms. Geier could you put up
9 MR. GARDNER: Objection, your Honor. 9 Government Exhibit 61.
10 THE COURT: Overruled. 10 Q. How many times have you met with Mr. Olivieri at the
11 THE WITNESS: Joe is one of the -- one of the major 11 Yonkers Raceway diner?
12 players with the trustees, the employer trustees, because he 12 A. Twice.
13 represented the largest amount of benefit hours going into our 13 Q. Let's talk about the first meeting. When was it?
14 benefit funds. The drywall industry was the last largest part 14 A. The first meeting was -- I don't know the exact date, but
15 of our business in district council. So Joe represented most 15 it was sometime in '04. And Joe had called me and asked me if
16 of the big contractors in New York City. And they had the 16 I was going north any time soon. And I said yeah, I could.
17 biggest contribution going into our benefit funds. 17 So --
18 Q. How would you describe the relationship between 18 Q. When you say going north?
19 Mr. Olivieri and Michael Forde? 19 A. I'm sorry.
20 A. I believe that they had a pretty close working relationship 20 Q. What do you mean by that?
21 and friendship as well. 21 A. Well my office was in -- on 35th Street and Eighth Avenue.
22 Q. Could you describe how your relationship with Mr. Olivieri 22 I happen to live up in the Yonkers area, Westchester. So going
23 developed over time? 23 north, that's what he meant.
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Page 750 Page 752
I said yes, I was going north. And we arranged to out there, telling everyone be careful.
2 meet at the Raceway diner. 2 Q. At some point after that meeting did there come a time when
Q. At the time you spoke with Mr. Olivieri on the phone, did you learned that James Murray had gone to Ireland?
3 he indicate to you why he wanted to see you? 3 A. Yeah. We had heard that he disappeared and took off back
A. No, he did not. to Ireland.
4 Q. Did you meet with him that day? 4 Q. How did you react when you learned that he was in Ireland?
5 A. Yeah. Probably a couple hours after the phonecall. I 5 A. Myself, I'll be honest with you, I was half relieved,
6 drove up. And pulled into the parking lot. And Joe was in the 6 believe it or not. Because, you know, it was a topic of
7 parking lot. And I got out of my car. And walked over to the 7 discussion amongst all of us, really, and, you know, how the
8 corner of the parking lot with Joe where we exchanged 8 chatter goes around. Everyone was saying how it was a good
9 pleasantries and so on and so forth. 9 thing because there was no extradition between Ireland and the
10 Q. Is that where you met, in the parking lot? 10 United States. So everybody figured okay, you know, he's gone,
11 A. Yeah. We stayed in the parking lot. 11 the problem is over.
12 Q. Were you outside at the time? 12 MR. GARDNER: Objection.
13 A. We were outside in the parking lot in the back corner. 13 THE COURT: Sustained.
14 Q. Was anyone else present for that meeting? 14 Q. Now you said before that you met with Mr. Olivieri two
15 A. No. No, there's wasn't. 15 times at the Yonkers Raceway diner; is that correct?
16 Q. What did Mr. Olivieri say to you? 16 A. Yes, that's correct.
17 MR. GARDNER: Your Honor, objection. 17 Q. When was the second meeting?
18 THE COURT: Overruled. 18 A. Again, I'm not sure of the date but it was during the time
19 THE WITNESS: Joe said to me, listen, he said the feds 19 that Mr. Murray was supposedly gone to Ireland.
20 have been out to Larry Cooley's house and Larry Cooley, he's 20 Q. How did the meeting come to be set up?
21 the -- he was the owner of Commercial Drywall. 21 A. Again, I'm not a hundred percent sure if I initiated it or
22 So, I said oh, yeah. I said is he going to be okay? 22 if Joe initiated it, but we did agree to meet in the diner once
23 Is he all right? 23 again. This time we actually met inside the diner and we sat
25 (212) 805-0300 25 (212) 805-0300
Page 751 Page 753
He says, yeah, I think he'll be okay, he'll be all down and had a bite to eat.
2 right. 2 Q. By that point had you heard anything about whether
Q. What did me mean by that when he said is he okay? Mr. Murray had been indicted?
3 A. What I meant was is he going to say anything, you know, is 3 A. Yes. Mr. Murray was indicted by that point.
he going to keep quiet? Because Larry Cooley's company, Q. What was the subject of that second meeting?
4 Commercial, there was -- Jim Murray and On Par, he was 4 A. The subject of that was Joe and I were talking. And Joe
5 transferring all of his work to Commercial Drywall because On 5 was saying do you think Murray's all right? What do you think?
6 Par was being investigated by our independent investigator, 6 Do you think he's talking? You know, what's going on?
7 Walter Mack. So it was getting a bit hot in the kitchen, so to 7 And, you know, I was worried myself as well about
8 speak, and all the work was going to Commercial Drywall. Even 8 Murray because I heard, you know, that there's a possibility he
9 On Par's foremen, all the workers, they were switching over. 9 may be coming back.
10 There were a couple of jobs that had started and all of the 10 I told Joe, I said, listen, I said, you know, I don't
11 personnel from On Par was now working with Commercial. 11 think you have anything to worry about. Don't worry about it.
12 So, Murray was attempting to hide his work and put it 12 I talked to Michael Forde just prior -- prior to that
13 under another company's name. 13 and Michael had said: Listen, don't be getting paranoid.
14 Q. Were you concerned at all about the fact that the FBI had 14 Everything is okay. Murray is not going to say anything. At
15 gone to see Larry Cooley? 15 least about the Irish guys. He said the only ones he's going
16 A. I was concerned once Walter Mack got involved with the 16 to say anything to, about are the people that -- whose name
17 investigations because he was turning up a lot of stuff that I 17 would end in a vowel.
18 knew to be true and I figured it was a matter of time before 18 Q. Even though you told Mr. Olivieri that he thought Murray
19 they were going to find out what was what. 19 was going to be okay, did you have any concerns at that time?
20 Q. In total, first, how did that first meeting end? 20 A. Yeah, I did. I did. Because I had been talking with our
21 A. It ended -- we were all in there about five minutes, a 21 own attorneys and I was concerned with the tone of that
22 little more than five minutes. It was a pretty quick meeting. 22 conversation because they were talking that Murray wanted to
23 And we shook hands, said good-bye, and Joe says just be careful23 have a figure, a dollar figure to negotiate with us that he
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Page 754 Page 756
would have to pay us. And he wanted us to keep that figure (In open court)
2 down. 2 THE COURT: Thank you. Be seated. Let's go over the
And the initial money that was owed to us, he wanted schedule for tomorrow. My notes from last week, the government
3 us to keep that down. He said keep it down, three million, and 3 had indicated Mr. Greaney, it still had Ms. Murray, and then
I'll pay ten million and fines on top of that. And the possibly Mr. Marone, Mr. Blauser, Ms. Geier. Is that still
4 reasoning behind that was so if he came back, that his 4 your lineup?
5 sentencing would be lower, according to the dollar value of the 5 MS. ZORNBERG: It is, your Honor. And I would note
6 crime. 6 that each of the remaining witnesses are fairly brief witnesses
7 Q. And is it the fact that you heard there were these 7 whose direct examinations are each under 30 minutes. So,
8 settlement discussion that made you concerned Mr. Murray might8 currently the government expects to be able to rest its case in
9 be coming back? 9 chief tomorrow, possibly by lunchtime, depending on how long
10 A. Yes. 10 the cross examinations go.
11 MR. LANPHER: May I have a moment, your Honor? 11 THE COURT: All right. One thing that does still
12 (Pause) 12 remains outstanding and one of the reasons why I wanted to
13 MR. LANPHER: Nothing further, your Honor. 13 start earlier tomorrow is that we need to turn to the draft
14 THE COURT: All right. We're going to break for the 14 jury instructions. So I hope to be able to get to you a draft
15 day at this point. And we will resume tomorrow at 9:00 a.m. 15 sometime before noon. And if the testimony is over by the
16 Now, let me remind the jury again about the importance 16 morning, depending upon what the defendant decides, we may be
17 of being on time. You have now been here a number of days and 17 in a position to have a charge conference sometime during the
18 you will remember the experience of getting through the 18 course of tomorrow afternoon.
19 security in the morning. Sometimes lines form and it takes a 19 Mr. Gardner, can you give us some indication of what
20 bit of time to get through. So build that time into your plans 20 your contemplation is in the event that the government rests
21 so that it will enable us to start at the designated time at 21 tomorrow.
22 9:00 a.m. and not find yourself on that line at that time. 22 MR. GARDNER: Your Honor, at this point -- and, again,
23 As you go home today, do not discuss the case with 23 it is fluid, but at this point I think I would have a short
25 (212) 805-0300 25 (212) 805-0300
Page 755 Page 757
anyone or be contacted by anyone or have any communications of defense case. I may call one or two witnesses that I
2 any kind with anyone associated with the case. And if any of 2 previously indicated. At most three maybe.
these things occur, you're directed to inform the Court I guess my question for the Court is if they do -- in
3 immediately and not discuss it among yourselves. 3 the event they do rest, the government rests by lunchtime or
Thank you. We'll see you tomorrow at 9:00 a.m. thereabouts, should I be prepared with -- if I'm putting on a
4 (Jury excused) 4 defense case, should I be prepared with that for the afternoon?
5 THE COURT: You may step down. 5 THE COURT: Absolutely.
6 (Witness excused) 6 MS. ZORNBERG: Your Honor, perhaps this is unnecessary
7 (Continued on next page) 7 but we'd like to ask that Mr. Gardner identify the witnesses he
8 8 intends to call and perhaps give us a very short proffer as to
9 9 just the general subject area so that if there are any issues
10 10 that we need to raise with the Court we can be prepared to do
11 11 it.
13 13 MR. GARDNER: Well, your Honor, I would object to
14 14 telegraphing the defendant's case. But I think they know the
15 15 people that were subpoenaed. For example, Mr. Wagner and
16 16 perhaps Mr. Polvere and even the attorney for the association,
17 17 Mr. Popkin.
18 18 Mr. Wagner is only as to the Riverdale project. The
19 19 Court has heard his name often as to the Riverdale project.
20 20 And I think he would testify about vetting D & O and his
21 21 running of the project and not Jim Murray's.
22 22 Mr. Polvere is the person who performed the audit on
23 23 On Par, the forensic audit, I should say. So he's the one that
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Page 758 Page 760
came up with the large scale dollar numbers and was hired by to say surprise for that reason.
2 the funds in doing that. 2 MS. ZORNBERG: Your Honor, perhaps we can speak to
Mr. Popkin is somebody who understands the operations Mr. Gardner after this and get some more information. But it's
3 of the association and advised Joe with regard to that. 3 still unclear as to good advice as to what? Mr. Popkin was not
MS. ZORNBERG: Your Honor, I'll just note for the present at the deposition that's the subject of the perjury
4 record that if -- we certainly have no issue with the defense 4 charge. So, we remain perplexed. And we don't need to take up
5 calling Robert Wagner. But we don't see the relevance -- this 5 the Court's time with it. But we would like some further
6 is the first we've heard that either Greg Polvere or Mr. Popkin 6 explanation so that we can evaluate it.
7 have been subpoenaed. And the relevance is entirely unclear to 7 THE COURT: We'll have to, again, assess this when the
8 us as to either one. And so we'd like to know more. 8 time comes, Mr. Gardner. I do have some of the government's
9 If Mr. Popkin is being called to present some type of 9 concern as to exactly what relevance some of this proffer has
10 defense that he acted on advice of counsel, that's something he 10 to the immediate issues here. But, we'll wait to see how it
11 should have raised before now. But we'd at least be entitled 11 ties.
12 to information, even at this late date, of a detailed nature of 12 MR. GARDNER: Your Honor these are not long. I would
13 what that's about. 13 say that the defense case, if we put on a case, would be very
14 And the Polvere audit. Mr. Polvere -- when he's 14 quick.
15 testified in the past it's been as an expert. There's been no 15 THE COURT: I'm not concerned about the length. I'm
16 expert witness notification in this case. There's been no 16 concerned more about the relevance and the connection. You
17 proof that's come in as part of the government's defense case, 17 could have three days of testimony if you want as long as it
18 or that we're aware of, that Mr. Olivieri played any type of 18 has something to do with what's on trial here.
19 integral role in any audit that was conducted. 19 MR. GARDNER: Your Honor, again, my objection, much
20 So, we just -- we're a little perplexed as to whether 20 about what the government has put on is that it's not relevant,
21 or not an expert witness is being called, a lawyer being 21 and I'm happy to figure out --
22 called. And it's eleventh hour notification. And we think the 22 THE COURT: Well two irrelevances don't cancel.
23 government is entitled to know a little bit more about that. 23 MR. GARDNER: I thought they might.
25 (212) 805-0300 25 (212) 805-0300
Page 759 Page 761
MR. GARDNER: Your Honor, again, with the proviso that THE COURT: Thank you.
2 I don't think the defendant needs to tell the government what 2 MR. LANPHER: Your Honor, just for clarification, in
its defense case is, Mr. Polvere would not be called as an the event that defense counsel does not put on a case, should
3 expert. Mr. Polvere was the individual who performed the audit 3 we be prepared to sum up tomorrow afternoon?
and we may determine -- although I'm not sure, your Honor -- THE COURT: Yes.
4 I'll think about it overnight, that's it's relevant for the 4 (Adjourned to October 26, 2010 at 9:00 a.m.)
5 jury to hear that Mr. Olivieri in no way competed with that 5
6 audit. In fact, he was one of the people who hired 6
7 Mr. Polvere to perform that audit that resulted in, you know, 7
8 the fund saying that funds are owed -- I think it was ten 8
9 million dollars or something. So rather than -- your Honor I 9
10 would say as to the attorney issue, we not only subpoenaed -- 10
11 and this was stated on the record previously so I think counsel 11
12 is just simply mistaken as to who was subpoenaed. We did 12
13 discuss it previously. But it's been -- we do get tired over 13
14 trial so I do understand that. 14
15 Your Honor, we did brief argue about and submit it to 15
16 the Court, a jury charge as to good faith. And the jury charge 16
17 as to good faith is directly relevant based on -- the whole 17
18 good faith charge is based on attorney advice. 18
19 So there are a number of attorneys that we've 19
20 contemplated calling from Schulte Roth, from O'Dwyer's office, 20
21 Mr. Popkin, even Ms. Bonsignore. We've contemplated calling a21
22 whole host of attorneys. The good faith charge is put before 22
23 your Honor. I don't think there's any surprise or any reason 23
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Page 762
2 JAMES MURRAY
Direct By Ms. Zornberg . . . . . . . . . 521
3 Cross By Mr. Gardner . . . . . . . . . . 630
Redirect By Ms. Zornberg . . . . . . . . 677
4 LAWRENCE COOLEY
6 JOHN GREANEY
Direct By Mr. Lanpher . . . . . . . . . . 739
7
8
11 87 and 88 . . . . . . . . . . . . . . . . . 538
12 67A and B . . . . . . . . . . . . . . . . . 608
13 61 and 62 . . . . . . . . . . . . . . . . . 751
14 60 . . . . . . . . . . . . . . . . . . . . 746
15 68 and 69 . . . . . . . . . . . . . . . . . 561
16 74 and 75 . . . . . . . . . . . . . . . . . 562
17 82 . . . . . . . . . . . . . . . . . . . . 549
18 93 . . . . . . . . . . . . . . . . . . . . 543
19 98 . . . . . . . . . . . . . . . . . . . . 621
20 110 . . . . . . . . . . . . . . . . . . . . 527
21 111 . . . . . . . . . . . . . . . . . . . . 535
22 113 . . . . . . . . . . . . . . . . . . . . 545
23 281 . . . . . . . . . . . . . . . . . . . . 582
25 (212) 805-0300
Page 763
Exhibit No. Received
2 282 . . . . . . . . . . . . . . . . . . . . 591
283 . . . . . . . . . . . . . . . . . . . . 613
3 602 . . . . . . . . . . . . . . . . . . . . 576
4 609 and 610 . . . . . . . . . . . . . . . . 557
5 802, 803, and 805 . . . . . . . . . . . . . 570
6 806 . . . . . . . . . . . . . . . . . . . . 528
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
25 (212) 805-0300
Page 764 Page 766
1 0aqdoli1 Trial
UNITED STATES DISTRICT COURT 1 0aqdoli1 Trial
2 SOUTHERN DISTRICT OF NEW YORK questions for Mr. Greaney.
------------------------------x
3 2 THE COURT: That's fine. So let's not then now
4 trouble Mr. Greaney unnecessarily.
v. 08 Cr. 0828 (VM) 3 MS. ZORNBERG: Your Honor, just one other matter
5
JOSEPH OLIVIERI, quickly to bring to the Court's attention.
6
Defendant. 4 On the list of witnesses to be called this morning was
7 5 John Marone, and as we alerted your Honor's clerk, Mr. Marone
------------------------------x
8 6 was admitted to Westchester County Hospital yesterday. We
9 October 26, 2010 7 didn't learn about it until well after court was done here
9:02 a.m. 8 today. He had had a cancer scare, a situation two years ago.
10
9 He had some issue in the same location, and he was admitted to
11 Before:
10 the hospital for purposes of having a colonoscopy this morning.
12 HON. VICTOR MARRERO, 11 The government spoke to Mr. Marone. He's been
13 District Judge 12 subpoenaed to testify. Obviously, he cannot testify today.
14 13 He's having a medical procedure. He is on an IV. What he told
APPEARANCES
15
14 the government was that depending on the results of the
PREET BHARARA 15 colonoscopy, there is a good chance that he will be released
16 United States Attorney for the
Southern District of New York 16 from the hospital today, and so there is a very good
17 BY: LISA R. ZORNBERG
MARK D. LANPHER
17 possibility that he could testify tomorrow morning the first
18 Assistant United States Attorneys 18 thing.
19 SULLIVAN GARDNER, P.C. 19 I just want to flag this for the Court because it
20 would be the government's request, in light of this unexpected
CHRISTOPHER TUMULTY 21 health emergency, that the Court give the government the
21 - also present -
SA Roy Pollitt, FBI Case Agent 22 ability to finish putting in all of its evidence today but to
22 SA Ryan Gibbs, U.S. Department of Labor
Colleen Geier, Government Paralegal
23 leave open the opportunity to call Mr. Marone the very first
23 24 SOUTHERN DISTRICT REPORTERS, P.C.
25 (212) 805-0300 25 (212) 805-0300
Page 765 Page 767
1 0aqdoli1 Trial 1 0aqdoli1 Trial
(Trial resumed; jury not present) thing tomorrow with closing arguments then to follow tomorrow.
2 THE COURT: Thank you. Be seated. 2 If it turns out that Mr. Marone is unable -- is still
The Court received a letter from the government in the hospital or unable to testify, of course we'll let the
3 raising the issues of evidence that the government wishes to 3 Court know, and if that, you know, if we can't call him as a
introduce. witness, we can't call him as a witness. But it is very
4 Are these matters that need to be addressed at this 4 unexpected and we want to flag that.
5 moment or can they wait until the break? 5 THE COURT: Thank you.
6 MS. ZORNBERG: Your Honor, I believe it can wait until 6 Mr. Gardner.
7 the morning break. 7 MR. GARDNER: Your Honor, I do have an objection to
8 THE COURT: All right. 8 taking a witness out of order after the close of the
9 MR. GARDNER: I ask counsel for a copy of the letter. 9 government's case. Presumably, the defense would have
10 MS. ZORNBERG: Ms. Geier, do you have a hard copy of 10 presented evidence by then and then this would be an
11 the letter? 11 out-of-order type witness. We do have an objection. It
12 THE COURT: Bring the jury in, then. 12 certainly doesn't sound like an emergency procedure. If the
13 MR. GARDNER: As to Mr. Greaney, I thought about it 13 case is not being put over before his testimony, we would
14 overnight, and I do not have any questions for him. So I don't 14 object to him coming in after the government is resting.
15 know if you wanted to do that in front of the jury, or I just 15 THE COURT: Let's put that off for a moment. Let's
16 wanted to inform the Court. Since he is incarcerated, I didn't 16 bring the jury in.
17 want the marshals to have to take him out. 17 (Continued on next page)
18 AGENT GIBBS: They already took him out, I think. 18
19 MR. GARDNER: However you want to do it, your Honor. 19
20 THE COURT: The question is whether you want the jury 20
21 to know that you don't have any questions. 21
22 MR. GARDNER: I do, your Honor. But I am also fine 22
23 with the Court just informing them that the defendant had no 23
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Page 768 Page 770
1 0aqdoli1 Trial 1 0aqdoli1 T. Murray - direct
THE CLERK: All rise. Q. Do you have children?
2 (Jury present) 2 A. Yes, we do.
THE COURT: Thank you. Be seated. Q. How many?
3 The Court appreciates that all the members of the jury 3 A. Three.
were here on time at the appointed hour. Q. Could you describe your educational background for the
4 Yesterday at the close of the day the government had 4 jury?
5 concluded its examination of its witness, Mr. Greaney, and the 5 A. I have a high school equivalent and then I went to college
6 defense has informed the Court that it has elected not to have 6 for two years but didn't qualify.
7 any cross-examination of Mr. Greaney. So we will proceed to 7 Q. After you first came to the United States, what did you do
8 the next government witness. 8 for a living?
9 Mr. Lanpher. 9 A. When I first came to the United States, I was a nanny in
10 MR. LANPHER: Your Honor, the government calls Tracy 10 Greenwich, Connecticut.
11 Murray. 11 Q. And how long did you keep doing that?
12 TRACY MURRAY, 12 A. A year. Then I was an office person for a doctor in the
13 called as a witness by the government, 13 city, and then became a HR person for Citibank and then finally
14 having been duly sworn, testified as follows: 14 a HR generalist for Deutsche Bank.
15 THE COURT: You may be seated. 15 Q. When was your first child born?
16 THE WITNESS: Thank you. 16 A. In 2001.
17 THE COURT: Speak into the microphone as closely as 17 Q. Did you keep working outside the home after that?
18 possible. 18 A. When my child was born, I did not. I did not.
19 State your name and spell it for the record. 19 Q. What was your husband doing for work at the time?
20 THE WITNESS: OK. Tracy Murray, T-r-a-c-y 20 A. He was running a company, On Par.
21 M-u-r-r-a-y. 21 Q. Was your husband ever engaged in renovating houses for
22 MR. LANPHER: Thank you, Judge. 22 resale?
23 DIRECT EXAMINATION 23 A. Yes.
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Page 769 Page 771
1 0aqdoli1 T. Murray - direct 1 0aqdoli1 T. Murray - direct
BY MR. LANPHER: Q. Did you ever assist your husband in that?
2 Q. Good morning, Mrs. Murray. 2 A. I did.
A. Good morning. Q. Could you describe what type of things you would do?
3 Q. Mrs. Murray, where did you grow up? 3 A. I would help him with the interior decision making,
A. In Ireland. kitchens, the paint colors, that sort of thing, bathroom tile.
4 Q. How long did you lived there? 4 Q. How often did you do that?
5 A. 22 years. 5 A. As often as I needed -- I mean, as often as he asked me to.
6 Q. When did you move to the United States? 6 Q. How many houses do you think you did that for him?
7 A. When I was 22. 7 A. Probably six or seven.
8 Q. Did you come by yourself or with family? 8 Q. Why did you get involved in that?
9 A. I came by myself. 9 A. It's something I like doing. I always liked interior
10 Q. Why did you move to the United States? 10 design and it got me out of the house.
11 MR. GARDNER: I object. 11 Q. Were you ever paid a salary for doing that type work?
13 Q. Are you a United States citizen? 13 Q. Were you involved in picking which houses to invest?
14 A. Yes, I am. 14 A. No. For the most part, no. I mean, sometimes I would give
15 Q. When did you become a United States citizen? 15 my opinion on a house, but he would for the most part make the
16 A. In 2000. 16 decision.
17 Q. At some point after coming to the United States, did you 17 Q. Were there times when your husband put your name on
18 meet James Murray? 18 business ventures that he was involved in?
19 A. I did. 19 A. Yes.
20 Q. Are you married? 20 Q. What type of things?
21 A. Yes. 21 A. Some of the houses were in my name.
22 Q. When did you get married? 22 Q. Did you discuss that with him at the time?
23 A. In 1999. 23 A. Yeah. It was my understanding that it was for investment
25 (212) 805-0300 25 (212) 805-0300

Page 772 Page 774
purposes. That was really -- that was really it. A. I did.
2 Q. What sort of decision making authority did you have on 2 Q. Why?
these businesses once they were put in your name? A. I felt that I did nothing wrong, but I wanted to be sure
3 A. None. 3 that I could come back to the United States and not be in any
Q. Did you sign things for your husband? harm and that my kids would have a mother.
4 A. Yes. 4 Q. What happened after you retained a lawyer?
5 Q. Could you explain that? 5 A. My lawyer spoke with the government and I -- she started
6 A. Anything Jim asked me to sign, I signed. I didn't think 6 talking with them, and they agreed that I did nothing wrong and
7 about it. 7 I was allowed to come back.
8 Q. Did you ever work for your husband's company, On Par? 8 Q. Were you interviewed by the government while you were still
9 A. No. 9 in Ireland?
10 Q. Did there come a time when your husband returned to Ireland10 A. Yes, I was.
11 from the United States? 11 Q. At some point after that, did you enter into an agreement
12 A. Yes. 12 with the government?
13 Q. When was that? 13 A. I did.
14 A. March 28, '06. 14 Q. Was that prior to your returning from Ireland?
15 Q. Could you describe the circumstances of that? 15 A. It was.
16 A. Of that day? He went to work as usual and he met with his 16 Q. What is your understanding of what that agreement says?
17 counsel that day, and he came home and he said he was leaving17 A. The agreement, my understanding is that I -- the government
18 that day. And he left with -- he came home at 4 o'clock. He 18 agreed I did nothing wrong, that I could return to the United
19 left with what he was wearing. He had an airline ticket and 19 States, that I would testify, if I needed to, truthfully, and
20 his bag and I just ... 20 that I forfeited all my interest in any properties that had my
21 Q. What did you do? 21 name on it.
22 A. Cried. I stayed and my daughter was five days old. Sorry. 22 Q. Now, you mentioned that you hired a lawyer. Was that the
23 Q. Did you ever join your husband in Ireland? 23 same lawyer as your husband's lawyer?
25 (212) 805-0300 25 (212) 805-0300
Page 773 Page 775
A. I did. A. No.
2 Q. How long after that? 2 Q. You had different lawyers?
A. Six/seven weeks after that. A. Yes.
3 Q. Did you ultimately stay there? 3 Q. Mrs. Murray, had you ever met Joseph Olivieri?
A. Yes. A. I have not.
4 Q. How old were your kids at the time? 4 Q. Have you ever spoken with him?
5 A. Five, three and six weeks old. 5 A. No.
6 Q. Did you want to live in Ireland? 6 Q. Have you ever lent him money?
7 A. No. 7 A. No.
8 Q. What did you do then? 8 Q. Had you ever meet someone named Michele Bonsignore?
9 A. I tried to keep it all together. I just -- I was a mother. 9 A. No.
10 Q. How long did you remain in Ireland? 10 Q. Had you ever spoken with her?
11 A. A little over two years. 11 A. No.
12 Q. Do you recall when you returned to the United States? 12 MR. LANPHER: Ms. Geier, could we put up Government
13 A. End of August '06 -- no, '08. I'm sorry. 13 Exhibit 75, in evidence.
14 Q. Did you come back alone or with your family? 14 Q. Mrs. Murray, do you recognize that?
15 A. I came back with my children. 15 A. No.
16 Q. Your husband stayed in Ireland at the time? 16 Q. Is that a house that you worked on?
17 A. He did. 17 A. No.
18 Q. Why did you want to come back? 18 MR. LANPHER: Ms. Geier, could we put up Government
19 A. I wanted to come back to my home. This was my home, and19 I Exhibit 76, in evidence.
20 wanted my kids to be educated here and live here and have this 20 Q. Mrs. Murray, do you recognize that?
21 life. 21 A. I do not.
22 Q. Prior to returning to the United States, did you retain a 22 Q. Is that a house that you did the interior styling?
23 lawyer to represent yourself? 23 A. No.
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Page 776 Page 778
1 0aqdoli1 T. Murray - direct 1 0aqdoli1 T. Murray - cross
Q. Now, I am going to approach. I show you what's been marked Q. Do you recall telling the government whether or not in 2001
2 as Government Exhibit 602. 2 you were feeling claustrophobic in being a full-time mom, at
MR. LANPHER: Ms. Geier, could you put that up at the which time James Murray, your husband, had a conversation with
3 same time. 3 his accountant, Marty Stein, about putting some businesses in
Q. Have you had a chance to take a look at that, Mrs. Murray? your name; do you recall saying that to the agent?
4 A. It has my name on it. 4 A. I don't recall but, I mean, it makes sense, yep.
5 Q. Do you recognize that document? 5 Q. So it could have been in 2001?
6 A. No, I do not. 6 A. It could have -- I mean, I don't remember.
7 MR. LANPHER: May I have a moment, your Honor? 7 Q. Now, you didn't have -- there are many houses, would you
8 (Pause) 8 agree, that your husband purchased, renovated and flipped that
9 MR. LANPHER: Nothing further, your Honor. 9 you had no involvement with, correct?
10 THE COURT: Mr. Gardner. 10 A. Correct.
11 MR. GARDNER: Thank you, Judge. 11 Q. OK.
12 CROSS-EXAMINATION 12 A. Other than helping him with the interior.
13 BY MR. GARDNER: 13 Q. So you helped with the interior with every house?
14 Q. Good morning, Ms. Murray. 14 A. I mean, some of them I can recall, yes.
15 A. Good morning. 15 Q. What I'm asking is there are some houses that were put in
16 Q. My name is Brian Gardner and I represent Joseph Olivieri. 16 your name --
17 A. OK. 17 A. Yes.
18 Q. Now, do you recall when your husband began putting homes18 Q. OK.
19 that he was renovating and flipping in your name? 19 -- that you didn't help with the interior, correct?
20 A. I don't. 20 A. Yes.
21 Q. You don't remember? 21 Q. And you said that the houses were put in your name for
22 A. I don't remember -- no, I don't. I don't remember. 22 investment purposes? What does that mean?
23 Q. Can you give us an approximate year? Early 2000, would you 23 A. For investment purposes. For, you know, he would flip
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Page 777 Page 779
1 0aqdoli1 T. Murray - cross 1 0aqdoli1 T. Murray - cross
agree? them, make money. It was part of growing our investment was my
2 A. My son was born 2001, so prior to that I don't recall any 2 understanding.
houses. Maybe shortly after that. Q. But you didn't have any decision making of which houses to
3 Q. What month was your son born in? 3 buy, right?
A. May. A. No.
4 Q. May? 4 Q. You had no decision making on how much to pay for them,
5 A. Yep. 5 right?
6 Q. And do you recall very shortly after your son was born in 6 A. No.
7 May of 2001 your husband putting some houses in your name? 7 Q. You had no connection or distribution from the profits,
8 A. I don't. 8 right?
9 Q. But sometime after that you remember that this process was 9 A. No.
10 going on? 10 Q. But you knew these houses were being put in your name?
11 A. Yeah. I mean, I was working right up to when I had my son. 11 A. Yeah.
12 So I would have been working. So it was definitely after my 12 Q. OK. So you knew that this was being done by your husband
13 son was born. But I would say maybe a year or two after my son13 with you to avoid something, somehow not putting them in your
14 was born. I really don't recall. 14 husband's name, right?
15 Q. Well, do you recall meeting with the government? 15 A. No, it wasn't like that. It was more of a -- it was -- I
16 A. Yes. 16 didn't think of it that way. It was just something that
17 Q. OK. How many times did you meet with the government? 17 we've -- you know, Jim had an accountant. He had an office
18 A. I had a video conference in Ireland, and then probably two, 18 full of people --
19 three times after that. 19 Q. Why do you think he wasn't putting it in his own name?
20 Q. And those were in -- do you remember meeting in about 20 A. I don't know. To make me feel like I had something of my
21 June 20th of 2008, June of 2008? 21 own. I remember, for instance, Tracy Restaurant Corp. I
22 A. That may have been when the video conference happened. It 22 remember him coming home putting it on the table and saying
23 was prior to me returning. 23 this is a gift for you. So that was the understanding, that it
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Page 780 Page 782
just paid me -- I had some equity of my own. It was just that Q. And a sale?
2 sort of thing. 2 A. Mm-hmm.
Q. And what was Tracy Equity Corp.? Q. A traditional flipping of houses?
3 A. Tracy Restaurant Corp. was the bar. 3 A. Right.
Q. The bar? Q. And then from the sale there is proceeds?
4 A. Yes. 4 A. Yes.
5 Q. So he told you that was Burke's Bar? 5 Q. They would being be made out to Tracy Murray or the
6 A. Yes. 6 corporation or something like that?
7 Q. So he told you, he said, this is for you, and so you could 7 A. I don't remember. I never paid much attention to them.
8 have something and that was the Burke's Bar, right? 8 Q. You said Jim Murray returned to Ireland; you used the word
9 A. Yes. 9 "returned" to Ireland. You knew he was fleeing to Ireland
10 Q. So you were the owner of Burke's Bar technically on paper, 10 because of the government action, right?
11 right? 11 A. I wouldn't put it like that. I -- When he left on Tuesday
12 A. On paper. 12 morning, he was not going to Ireland.
13 Q. Did you ever have a conversation with Joseph Olivieri about 13 Q. But when he came home he told you he's leaving?
14 who owned Burke's Bar? 14 A. Yes.
15 A. Never. 15 Q. He, as you explained it, barely packed a bag and said
16 Q. There was a sale of Burke's Bar, right, while your husband 16 goodbye and just ran out, right?
17 was in Ireland, I believe? 17 A. He left, yes.
18 A. Yes. 18 Q. So you knew he was fleeing to Ireland, not returning for
19 Q. And were you present for that sale? 19 some sort of family vacation, right?
20 A. No. 20 A. Oh, yes. I mean, he was -- yeah, he was advised that he
21 Q. That sale was conducted on your behalf by the Tague law 21 should leave. It didn't seem real. It didn't seem like he was
22 firm? 22 going -- it seemed to me like he was going to come back in a
23 A. Yes. 23 week or two but that didn't happen.
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Q. Which of the husband/wife Tague team was it? Was it John Q. When you came back and hired a lawyer, what law firm did
2 Tague or -- 2 you hire?
A. No, I don't know that. I really don't. A. Dechert.
3 Q. After the closing of the bar, did you receive a large 3 Q. Dechert?
amount of cash regarding the closing? A. Yes.
4 A. I did. 4 Q. How many lawyers are in Dechert?
5 Q. How much? 5 MR. LANPHER: Objection, your Honor.
6 A. 100,000 or more, in and around. 6 Q. It is a big firm, right?
7 Q. Did you also receive other proceeds from the sale of the 7 THE COURT: Sustained.
8 bar, meaning checks from the sale? 8 Q. Who referred you to Dechert?
9 A. Not that I remember. I don't remember. 9 A. Ivan Fisher.
10 Q. Were other properties sold while your husband was in 10 Q. Did you ever meet at Dechert's offices?
11 Ireland? 11 A. No.
12 A. Yes. 12 Q. What attorney from Dechert?
13 Q. Did you receive proceeds from those sales? 13 A. Cheryl Krause.
14 A. I remember the Avon House being sold and I received the 14 Q. And Ms. Krause and you went -- with Ms. Krause's
15 checks and I sent them to Jim in Ireland. 15 assistance, you entered into an agreement with the government?
16 Q. And these were checks that were made out to you because you 16 A. Yes.
17 were the actual owner of the property? 17 Q. Is that agreement called a nonprosecution agreement?
18 A. I don't remember. 18 A. It is.
19 Q. Is that -- 19 Q. You entered into that agreement with some obligations that
20 A. It's possible, I mean. 20 you do certain things and then it was the understanding that if
21 Q. Is that how this process would usually work because the 21 you do those things the government won't prosecute you, right?
22 properties are in your name? Then there is a renovation? 22 A. Yes.
23 A. Yep. 23 Q. Was it your understanding that you -- that the
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Page 784 Page 786
nonprosecution of you had to do with putting these properties Q. And it is written from an attorney's escrow account,
2 in your name and then sending the proceeds to Ireland while 2 Michele Bonsignore?
your husband was a fugitive? A. Mm-hmm.
3 A. My understanding was that I had signed documents. Whatever 3 Q. And it is written in whose name, yours?
I had signed, I would forfeit my interest in the properties and A. Mine.
4 that I -- yeah, that I really did nothing wrong and that they 4 Q. Is your husband's name on there at all?
5 agreed and that I could return. 5 A. Nope.
6 Q. If you did nothing wrong and they agreed, why are you 6 Q. Did you then cash that check?
7 signing a nonprosecution agreement? 7 A. I don't remember. I don't remember this check at all.
8 A. Because I'm not, you know, I wasn't willing to take the 8 Q. What is the date on that check?
9 chance. I have three kids. I'm not going to come back here 9 A. August 16, '05 -- oh, no, sorry. The first one?
10 without knowing that it's safe for me to come back. 10 Q. The first one?
11 Q. Right. So you understood that you had some potential 11 A. 12/20/05.
12 criminal liability, correct? 12 Q. By 12/20/05, your husband knew -- was your husband in
13 A. I didn't see it like that because I didn't think I did 13 Ireland at that time?
14 anything wrong. But I wasn't going to take the risk. 14 A. No.
15 Q. You understood that there was some potential criminal 15 Q. When did he leave for Ireland?
16 liability, right? 16 A. He left May 28th, '06, when my daughter was five years old.
17 A. Yes. 17 Q. I don't know if you had conversations with your husband
18 Q. Were there other times that houses were sold after being 18 about difficulties that he was having with the union or
19 renovated that you were given -- I don't want to repeat. There 19 investigations by the government.
20 was a bar that was sold, I understand, that you received cash. 20 Let me ask you. Had you ever heard the name Walter
21 But when you sold houses, did you also receive cash? 21 Mack?
22 A. No. 22 A. Yes.
23 Q. That was the only time with Burke's Bar? 23 Q. And by the very end of '05, you were aware that Mr. Mack
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Page 785 Page 787
A. That was the only time. was investigating your husband, correct?
2 Q. Now, with regard to what the government put up as a note 2 A. I was.
and it has your name, the $730,000 was repaid back to you. Is Q. And did you -- when did you first learn that?
3 that still in front of you? 3 A. I don't remember. It was '05 -- I mean, I remember I was
A. Yes, it is still here. pregnant with my daughter, so sometime that year.
4 Q. And that has your name on it, right? 4 Q. Was there any change after that -- after you learned about
5 A. It does. 5 that investigation, was there any change in how your husband or
6 Q. And did you receive checks with regard to this? 6 you took money from the sale of houses?
7 A. I never -- no. I had never seen this document before. 7 A. No.
8 Q. Did you ever discuss with anybody at the Tague Law Firm 8 Q. So this was commonplace, that there would be checks from
9 this document? 9 the sale of houses that were made out to your name?
10 A. I don't -- I don't think so. 10 A. Yep.
11 Q. Did you ever discuss with anybody at the Tague Law Firm 11 Q. Would you then usually get those checks?
12 being repaid $730,000 from a flipping of houses in Yonkers? 12 A. I mean, there were some closing checks that I remember
13 A. I don't remember. I really don't. 13 getting; not all of them, I don't think.
14 Q. How about the name Seavrus as a corporation? 14 Q. For example, did you have a bank account that you would
15 A. I never heard of it. 15 deposit these checks into?
16 MR. GARDNER: Your Honor, may I hand the witness 16 A. I deposited, yes, some checks. We had a joint bank
17 what's already in evidence as Government's Exhibit 604E, 604 --17 account.
18 I think it is in evidence -- 604C, 604D and 604F? 18 Q. What bank was the joint bank account at?
19 (Pause) 19 A. Wachovia.
20 Q. Do you see the top document? 20 Q. Did you have a credit line at Wachovia?
21 A. Mm-hmm. 21 A. Yes.
22 Q. How much is that check for? 22 Q. How much was your credit line?
23 A. 340,000. 23 A. We have a -- the credit line is for a million dollars.
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1 0aqdoli1 T. Murray - cross 1 0aqdoli1 Bloeser - direct
Q. Do you know if the $730,000 that's reflected in that note A. I worked for them from September 2000 until July of 2004.
2 on the other document -- 2 Q. What was your position with that company?
A. Yep. A. I was a senior project manager.
3 Q. -- was out of your credit line? 3 Q. Do you know an individual named James Murray or Jim Murray?
A. I have no idea. A. Yes, I do.
4 Q. Was that credit line just in your name or both yours and 4 Q. When did you first meet Mr. Murray?
5 Jim's? 5 A. Probably in 2001, or in that -- sometime during that time.
6 A. I don't know. 6 Q. What were the circumstances of your meeting Mr. Murray?
7 Q. It could have been just in yours? 7 A. He was -- his company was employed by IDI to do interior
8 A. It might have been. I don't know. 8 drywall, carpentry work on one of my projects.
9 MR. GARDNER: No further questions, your Honor. 9 Q. What was the name of Mr. Murray's company?
10 Thank you. 10 A. It is called On Par.
11 THE COURT: Mr. Lanpher. 11 Q. What percentage, roughly, of IDI's carpentry work was
12 MR. LANPHER: Nothing further, your Honor. 12 subcontracted to On Par?
13 THE COURT: You may step down. 13 A. Probably roughly 65/75 percent or something.
14 THE WITNESS: Thank you. 14 Q. Now, let me direct your attention to the year 2004.
15 (Witness excused) 15 Did there come a time when Mr. Murray contacted you
16 THE COURT: Ms. Zornberg. 16 about a job site at 3536 Cambridge Avenue in Riverdale?
17 MS. ZORNBERG: Your Honor, the government calls John17 A. Yes.
18 Blauser as its next witness. 18 Q. Can you describe the circumstances of him contacting you?
19 JOHN BLOESER, 19 A. We had talked -- I was working for a company up on the
20 called as a witness by the government, 20 Upper East Side, and he asked me to come and look at the
21 having been duly sworn, testified as follows: 21 project with him one day after work and that he was very proud
22 THE COURT: You may be seated. 22 of it but he was also having some problems with it. And he
23 Speak into the microphone as close as possible. 23 took me up to take a look at what he was doing.
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1 0aqdoli1 1 0aqdoli1 Bloeser - direct
State your name and spell it for the record. Q. I'm sorry. Did you say he was proud of it but also had
2 THE WITNESS: My name is John Bloeser, B-l-o-e-s-e-r. 2 problems with it?
DIRECT EXAMINATION A. He was very proud of the project so he was trying to show
3 BY MS. ZORNBERG: 3 it to me and, you know, just kind of wanted me to see it. And,
Q. Good morning, Mr. Bloeser. also, he was having problems with some of it, getting it going.
4 A. Good morning. 4 Q. Did Mr. Murray offer you a job on the Cambridge project?
5 Q. Were you subpoenaed to testify here today? 5 A. Yes, he did.
6 A. Yes, I was. 6 Q. What job did he offer you?
7 Q. How old are you? 7 A. It was project manager.
8 A. 60. 8 Q. Did you accept?
9 Q. Are you currently working? 9 A. I did.
10 A. No, I'm retired. 10 Q. During what period of time were you the project manager for
11 Q. Have you ever worked in the construction industry? 11 the Cambridge job site?
12 A. Yes. 12 A. From November of 2004 through the end of November,
13 Q. Can you briefly describe your work experience in the 13 beginning of December of 2005.
14 construction industry? 14 Q. During that period of time as project manager on the
15 A. I was in the construction industry for about 42 years. I 15 Cambridge site, how often were you physically at the site?
16 was most recently a project manager since 1984. 16 A. I was there every day.
17 Q. And when did you retire from the construction industry? 17 Q. What type of construction was it?
18 A. I retired in February of 2008. 18 A. It was a steel superstructure -- it was two eight-story
19 Q. Have you ever worked for a company called IDI? 19 buildings that were connected by a walkway. And it was steel
20 A. Yes, I did. 20 superstructure with precast concrete planks as the floor
21 Q. What kind of company was IDI? 21 structures and roof structure.
22 A. They were a general contractor here in New York City. 22 Q. Was it intended to be a residential building?
23 Q. And during what period of time did you work for IDI? 23 A. Yes, it was.
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Page 792 Page 794
1 0aqdoli1 Bloeser - direct 1 0aqdoli1 Bloeser - direct
Q. Now, you mentioned that when Mr. Murray first showed you Q. Using your pointer, can you just point out the townhouses?
2 the Cambridge job site there were some problems with it. 2 A. (Indicating).
A. Correct. Q. You mentioned that there was maybe 30 feet between the
3 Q. Can you describe what those problems were? 3 excavation and the houses. Can you indicate that?
A. There was a deep excavation -- it was built into a hill, A. Right there. The fence was about 25 feet from the back of
4 and the back of the project was a deep excavation of about 4 the townhouses, and the excavation varied from nothing to
5 40 feet. The actual excavation itself was about 100-by-100 5 30 feet from there.
6 square. And it was through rock, most of it. And the backside 6 Q. And let's put up Government Exhibit 88.
7 of the site, there were townhouses on 239th Street that backed 7 Do you recognize what's depicted in that photograph?
8 onto the site of the Cambridge site. And in excavating it they 8 A. Yes, I do.
9 had exposed the rock without shoring it, and it was in peril of 9 Q. What?
10 actually sliding, and the townhouses that were in back of it 10 A. Well, this is dirt from here down to about in this area you
11 were only about 30 feet away from the excavation and the whole11 can start to see the rock. And this rock is bedded at an angle
12 thing could have slid into the hole. It could have all slid 12 this way. So this whole earth berm, all of this is just very
13 and had a real disaster. 13 unstable and it could have at any time just slide into the
14 Q. What company was performing the excavation work on the 14 hole.
15 Cambridge job site? 15 Q. After you were hired by Mr. Murray to be the project
16 A. It was a company called DNO. 16 manager, what steps were taken to address this problem with
17 Q. Who did you understand to be the owner of DNO? 17 potential rock sliding?
18 A. It was Joseph Olivieri. 18 A. I told him that they had to bring the dirt back in and then
19 Q. When you first came onto the job site in November of 2004, 19 take it out properly and shore the excavation as they excavated
20 was it at the time that this problem was going on? 20 it.
21 A. Yes. 21 Q. Was that done?
22 Q. Did you think DNO had handled the excavation correctly? 22 A. Yes, it was.
23 MR. GARDNER: I object to form. 23 Q. Other than bringing the dirt back in, what else was done to
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THE COURT: Sustained. shore up that area of the construction site?
2 Q. What was your professional view of whether that -- of how 2 A. Well, what they did was we hired a company to come in and
that excavation was being done? drill soil nails and then shotcrete the walls of soil nails.
3 MR. GARDNER: Objection, your Honor. 3 There is a process of drilling. We drilled 21 feet into the
THE COURT: Overruled. bank, and then used very large rebar into the hole, grouted it
4 A. It was not safe. They had -- there was about 15 feet of 4 into place, and it becomes a pin that stabilizes the dirt to
5 soil that was sitting on top of rock and the rock had been 5 the rock. And then sprayed concrete over the face of all of
6 exposed. And the angle of the rock was such that a good solid 6 that to make it like a concrete retaining wall.
7 rainstorm over a couple of days could have slid the entire -- 7 Q. Let's put up Government Exhibit 93, in evidence.
8 could have slid the dirt that was on top of the rock into the 8 In this photo, can you -- do you see what you have
9 excavation. It was not safe. 9 been describing?
10 Q. Let's put up Government Exhibit 87, in evidence. 10 A. Yes. If you -- this is where the rock begins. You can see
11 And, Mr. Bloeser, I'm handing you a pointer here with 11 how the rock is sloped towards the hill or towards the hole in
12 a gray button. That's how you activate it. 12 this direction. The soil nails are five feet ion center.
13 A. OK. 13 That's one, two, three, all the way along five feet on center
14 Q. Do you recognize what's depicted in this photograph? 14 vertically or -- yeah, I guess either three or five. I guess
15 A. Yes, I do. 15 they were five feet on center vertically and five feet on
16 Q. What is it? 16 center horizontally. So every one of these lines is where, as
17 A. It is the excavation that we were just talking about. It's 17 the excavation was done, you dig down five feet, put the soil
18 the townhouses that are on I think it's 239th Street or -- no, 18 nails in, spray the concrete to stabilize it, then go another
19 I'm sorry. The 239th is the perpendicular street. I forget 19 five feet and work your way all the way down to the bottom of
20 the name of the street that's going the other way. I guess 20 the excavation.
21 that's Cambridge. That is Cambridge. Riverdale Avenue and 21 Q. Now, during the time period that the excavation was going
22 that is on Cambridge Street. So those townhouses are on 22 on on the Cambridge site, did you ever see Mr. Murray and
23 Cambridge. And that is the back of the excavation. 23 Mr. Olivieri at the job site?
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Page 796 Page 798
A. Yes. MR. GARDNER: Objection, your Honor, to it is
2 Q. Approximately how frequently? 2 relevant, your Honor.
A. Maybe once a month or so. There was really no frequency to THE COURT: Sustained.
3 it but, you know, they were there. I saw them maybe once a 3 BY MS. ZORNBERG:
month or so. Sometimes more. Q. Who did the carpentry and drywall work on the Cambridge job
4 Q. That's when you saw them both together? 4 site?
5 A. Yes. 5 A. The carpenters from On Par.
6 Q. Was Mr. Olivieri involved in discussions about these 6 Q. Were you able to recognize any of those carpenters as On
7 excavation problems? 7 Par employees?
8 MR. GARDNER: Objection, your Honor. 8 A. A couple, yes.
9 THE COURT: Overruled. 9 Q. How?
10 A. Not with me, no. 10 A. They had worked on other projects of mine in the city.
11 Q. Who did you see Mr. Murray -- I'm sorry, withdrawn. 11 Q. What were the circumstances of you leaving the Cambridge
12 With whom did you see Joseph Olivieri converse the 12 job site?
13 most with at the site? 13 A. Mr. Murray and I got into a big argument a couple of times.
14 A. Usually with his own men and then once in a while with Jim 14 He was becoming increasingly paranoid about things and very
15 Murray. 15 hard to deal with. And I was just -- I just didn't want to
16 Q. From your own conversations with Joseph Olivieri, how 16 deal with it anymore.
17 knowledgeable did he seem to you to be about excavation 17 This job was pretty well underway and I decided that I
18 matters? 18 would leave so I gave him about a month's notice.
19 MR. GARDNER: Objection, your Honor. 19 Q. When you say Mr. Murray was becoming paranoid about things,
20 THE COURT: Sustained. 20 what things?
21 MS. ZORNBERG: May I rephrase, your Honor? 21 MR. GARDNER: Objection, your Honor.
22 THE COURT: You may. 22 THE COURT: Overruled.
23 BY MS. ZORNBERG: 23 A. Union. Mostly about the union finding out that he had any
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Page 797 Page 799

Q. Have you ever spoken to Mr. Olivieri about the Cambridge involvement in the project, the Carpenters' Union.
2 project? 2 MS. ZORNBERG: Just a moment, your Honor.
A. I sure did, yes. (Pause)
3 Q. During those conversations, did he seem knowledgeable to 3 MS. ZORNBERG: No further questions.
you? THE COURT: Mr. Gardner.
4 MR. GARDNER: Objection, your Honor. 4 CROSS-EXAMINATION
5 THE COURT: Sustained. 5 BY MR. GARDNER:
6 MS. ZORNBERG: All right. 6 Q. Mr. Bloeser, good morning.
7 Q. Did Mr. Olivieri ever tell you who he dealt with about 7 A. Good morning.
8 price quotes on this project? 8 Q. My name is Brian Gardner and I represent Joseph Olivieri.
9 A. Yes. Mr. Murray. 9 A. Mm-hmm.
10 Q. From your experience as the project manager on this site, 10 Q. You ended with that you did see a couple of carpenters that
11 who made decisions about financing on this job site? 11 you recognized from other On Par jobs on the site?
12 A. Jim Murray. 12 A. Mm-hmm. Yes.
13 Q. Now, was the Cambridge job site a union or nonunion 13 Q. Just a couple?
14 project? 14 A. I'm not sure. I guess maybe a couple, maybe more.
15 A. It was basically nonunion, open shop. 15 Q. On Par wasn't the construction manager, general contractor
16 Q. Did there come a time when job site was picketed? 16 or subcontractor on that job site, was it?
17 A. Yes. 17 A. In actuality, yes, they were.
18 MR. GARDNER: Objection, your Honor. 18 Q. On Par was on the site?
19 THE COURT: Sustained. 19 A. Not as a subcontractor or as a contractor, but the men that
20 MS. ZORNBERG: Your Honor, may I rephrase? It is a 20 worked there and the bookkeeping and everything was done at On
21 relevant area. 21 Par's office.
22 MR. GARDNER: Objection. 22 Q. OK. You are aware of that?
23 THE COURT: Sustained. 23 A. Yes, I am.
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Page 800 Page 802
1 0aqdoli1 Bloeser - cross 1 0aqdoli1 Bloeser - cross
Q. When the excavation was done, you are aware DNO was just about?
2 doing the excavation? 2 A. Yes.
A. Yes. Q. Was that a difficult excavation?
3 Q. And it is fair to say at that when the excavation was done, 3 A. Yes, it was.
those couple of carpenters, or now maybe more, were not on the Q. At the times that you say there was some overlap between
4 job site, correct? 4 there was some carpenters, do you recall being there while the
5 A. There was a time when both carpenters and excavators were 5 excavation was going on?
6 there because there was two buildings. 6 A. Yeah. Certain days carpenters would be there to repair
7 Q. Were you involved in the second building at all? 7 fences, to build temporary facilities. You know, carpenters
8 A. There is two buildings on one site and then there is 8 came and went in those early days.
9 another building on Oxford Street. 9 Q. And you have a recollection that those carpenters who came
10 Q. Were you involved in Oxford at all? 10 and went during those early days were the same carpenters from
11 A. Only in the very beginning in more or less an advisory 11 On Par?
12 capacity. 12 A. Yes.
13 Q. You wouldn't say Jim Murray fired you, or you were fired 13 Q. You don't have any recollection, though, of while those
14 from the site? 14 carpenters were there, that Joe Olivieri was actually on the
15 A. No. I was not fired. No, I quit. 15 site, right?
16 Q. Were you involved in that second site, Oxford? 16 A. Specifically, I guess not, no. Timeframe wise it was all
17 A. In the very beginning, yes. 17 at the same time.
18 Q. When did you leave IDI? 18 Q. Right. But you don't have any recollection of ever seeing
19 A. I left IDI in July of 2004. 19 Joe Olivieri speaking with any of those carpenters, do you?
20 Q. So you were fired from IDI? 20 A. No.
21 A. No. IDI went out of business. 21 Q. Now, the shoring, that picture that you put up -- not you,
22 Q. OK. Where did you work after IDI? 22 I'm sorry, the government put up with the shoring --
23 A. I went to work for I. Grace up on 91st and First Avenue and 23 A. It was my picture. I took it.
25 (212) 805-0300 25 (212) 805-0300
Page 801 Page 803
up on the Upper East Side. They are a residential contractor Q. OK. You took that picture?
2 and -- 2 A. Yes, sir.
Q. How long did you work for them? Q. Do you have any information -- let me rephrase that.
3 A. I worked for them only for a few months because they mainly 3 Are you aware if Joe Olivieri discussed with anybody
do residential work and although I had done it a lot of times on the site, before you were retained for the site, shoring
4 in the past, I -- it was not the kind of work that I really 4 that area?
5 liked. 5 MS. ZORNBERG: Objection to form.
6 Q. Were you fired by them? 6 THE COURT: Sustained as to form.
7 A. No, I was not. 7 Q. I'll back up, then.
8 Q. You voluntarily quit from them? 8 Do you know the name Rob Wagner?
9 A. I voluntarily quit there, too. 9 A. Yes, I do.
10 Q. Did you have a job lined up when you voluntarily quit from 10 Q. When you came on the site, Rob Wagner was there?
11 them? 11 A. Yes, he was.
12 A. With Jim Murray. 12 Q. And was Rob Wagner was running the project from a
13 Q. So this was the next job? 13 construction point of view?
14 A. Yes. 14 A. I don't know that. He was a partner in the project.
15 Q. I thought you said that your contact with Jim Murray here 15 Q. Did you ever see Rob Wagner talk to Joe Olivieri?
16 was while you weren't working anywhere; am I mistaken? 16 A. I'm sure, yes.
17 A. I made -- my first contact with Jim Murray? 17 Q. And Rob Wagner was at the site almost daily?
18 Q. Regarding this job site. 18 A. Yeah, almost daily.
19 A. I was working I. Grace at that time, yes. 19 Q. Are you aware that Rob Wagner discussed with Joe Olivieri
20 Q. Now, the times that you saw -- back to the -- with drawn -- 20 the shoring up of that area?
21 Cambridge, the Cambridge site. 21 A. No, I'm not aware of that.
22 A. Mm-hmm. 22 Q. One of the reasons that you were brought in to the project
23 Q. That is that big site, right, that you had the pictures 23 had to do with shoring up that area, correct?
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Page 804 Page 806
A. I think it was more broad than that. That when I got REDIRECT EXAMINATION
2 there, they didn't -- 2 BY MS. ZORNBERG:
Q. I asked one of the reasons. I didn't say that was the only Q. Mr. Bloeser, who hired you to be project manager?
3 purpose. I said one of the reasons had to do with shoring up 3 A. Jim Murray.
that area. Q. From your experience working on the Cambridge job site, did
4 A. Yes. 4 he call the shots?
5 Q. Prior to you joining the work at the site, did you review 5 MR. GARDNER: Objection, Judge.
6 DNO's contract for its excavation? 6 THE COURT: Sustained.
7 A. No. 7 MS. ZORNBERG: No further questions, your Honor.
8 Q. Were you involved at all in negotiating that contract? 8 THE COURT: Thank you. You may step down.
9 A. No. 9 (Witness excused)
10 MR. GARDNER: Your Honor, now I'm going to hand the 10 (Continued on next page)
11 witness, if I may approach, what has been marked as Government 11
12 Exhibit 110, in evidence. 12
13 (Handing) 13
14 Q. Are you familiar with construction contracts? 14
15 A. Yes, I am. 15
16 Q. I am going to ask you to turn to -- do you see on the 16
17 bottom, it is Bates -- there are page numbers stamped on the 17
18 bottom. 18
19 A. Yes. 19
20 Q. Could I ask you to turn to page 821. 20
21 (pause) 21
22 A. OK. 22
23 Q. Do you see on that page that it says that shoring was not 23
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Page 805 Page 807
1 0aqdoli1 Bloeser - cross 1 0aqroli2
included in the contract? MS. ZORNBERG: Your Honor, before we call our next
2 A. I see it has a "No" written next to it, yes. 2 witness, the government offers Exhibit 605 as a defense
Q. Mr. Olivieri's company, DNO, wasn't paid any money for that admission.
3 shoring, right? 3 MR. GARDNER: Your Honor, I guess we should approach
A. I don't -- I wouldn't know that. on it.
4 Q. You wouldn't know it. 4 THE COURT: Yes.
5 You said you understood that Jim Murray had something 5 (At the side bar)
6 to do with the financing of the project, is that correct? 6 MS. ZORNBERG: Your Honor, here is the exhibit. It's
7 A. Yes. 7 the signed declaration by Joseph Olivieri about his accidental
8 Q. Who was the on-site manager, construction manager, or 8 loss or destruction of any documents relating to Seavrus Real
9 general contractor, whatever term -- you know the terms better 9 Estate Holdings. The government noted in its pretrial
10 than I do -- but whatever term you place on that, who was the 10 submissions to the Court that we identified this exhibit as one
11 on-site head construction person overseeing the construction? 11 of the defendant's admissions that we intended to offer. We
12 A. At the time I was there, it was me. 12 heard no opposition from defense counsel until moments ago.
13 Q. OK. Do you do that jointly with Mr. Wagner? 13 MR. GARDNER: I just didn't want to have a discussion
14 A. I'm sorry. What's that? 14 in front of the jury. It may have been given to me, I don't
15 Q. Did you do that jointly with Mr. Wagner? 15 recall, Judge. I don't know what the relevance of this
16 A. Yeah. We were all involved in it, yes. 16 document would be. I do understand that there is some
17 Q. And it was your understanding that Mr. Wagner was an owner 17 purported signature of my client there, but I don't see how
18 of the project? 18 this is relevant to what's going on in the case.
19 A. Yes. 19 THE COURT: What is this being introduced for?
20 Q. Did Mr. Wagner stay on after you left? 20 MS. ZORNBERG: It is being introduced as evidence that
21 A. Yes. 21 Mr. Olivieri has admitted that he found no documents relating
22 MR. GARDNER: No further questions. 22 to Seavrus real stealth holdings after being asked to look for
23 THE COURT: Ms. Zornberg. 23 them. I think a juror can fairly infer, particularly in light
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Page 808 Page 810
1 0aqroli2 1 0aqroli2
of all other evidence submitted as part of the government's something nefarious about that. If this were relevant to one
2 case, that Mr. Olivieri had a motive to get rid of documents 2 of the perjury allegations, I put to the government which
reflecting his dealings with James Murray and that he did so. perjury statement is this relevant to?
3 MR. LANPHER: Particularly when coupled with the fact 3 MS. ZORNBERG: It is relevant to his being asked
that his attorney said the same thing. She also had no records whether he did business with Jim Murray, whether he
4 of these transactions. It follows along in that stipulation, 4 communicated with Jim Murray, whether he spoke to Jim Murray
5 which is already in evidence, to make clear that there were no 5 about anything outside of the Wall & Ceiling audit.
6 records kept. Mr. Olivieri and his lawyer kept no records of 6 MR. GARDNER: Where is that in here?
7 the Seavrus transaction. 7 MS. ZORNBERG: His entire dealings with Jim Murray,
8 MR. GARDNER: I don't think that is the testimony. I 8 which he couched under the name of Seavrus Realty, is relevant
9 think the testimony is that everything went through the 9 to the perjury charge.
10 attorney. I don't think he would have any records. 10 MR. GARDNER: The only reason you want put this in is
11 MR. LANPHER: She said it was lost. 11 for the juror to conclude that he couldn't have lost these
12 MR. GARDNER: Either way, you are asking him, without 12 documents. That's the only purpose.
13 any testimony, without any supporting evidence, to put in a 13 THE COURT: I'll take this under advisement.
14 document saying please draw the conclusion he lied as to this 14 MS. ZORNBERG: Your Honor, let me give you a copy and
15 document. Is there anything charged with regard to this 15 take back the original.
16 document? 16 (Continued on next page)
17 MS. ZORNBERG: That is an issue for argument and for 17
18 weight. But this is a defense admission on the subject of the 18
19 transaction that he lied about in his deposition. That is 19
20 relevant especially in light of the fact that Mr. Gardner 20
21 throughout this trial has been trying to object to and impugn 21
22 the documents of the transaction that the government has 22
23 offered. 23
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Page 809 Page 811
The point is it is relevant in the context of this (In open court)
2 case to put in evidence. There already is evidence of Ms. 2 MR. LANPHER: Your Honor, may we call our next
Bonsignore that she accidentally lost or destroyed any witness?
3 documents relating to Seavrus. This is a corresponding defense 3 THE COURT: Yes.
MR. LANPHER: The government calls Colleen Geier.
admission, sworn, notarized, of him saying the same thing, and
4 COLLEEN GEIER,
4 everything goes to weight.
5 MR. GARDNER: Your Honor, first of all, I think I have
5 called as a witness by the government,
6 agreed to almost all the documents coming in, more than any
7 other defense attorney would normally do. But this is not an 6 having been duly sworn, testified as follows:
8 admission of anything having to do with the case. And, Judge, 7 THE COURT: Speak into the microphone as closely as
9 it is admitting anything. 8 possible, state your name and spell it for the record.
10 I will note this has been referenced time and time 9 THE WITNESS: Colleen Geier. C-O-L-L-E-E-N, Geier,
11 again. The questions as to Seavrus realty and this project, 10 G-E-I-E-R.
12 there are maybe four questions that the government alleges are 11 THE COURT: Mr. Lanpher.
13 perjury. Those four questions all have to do with how Mr. 12 MR. LANPHER: Thank you, Judge.
14 Olivieri found out about the site. That's it. This has 13 DIRECT EXAMINATION
15 nothing to do with it. 14 BY MR. LANPHER:
16 MS. ZORNBERG: That is correct. This doesn't relate 15 Q. Good morning, Ms. Geier.
16 A. Good morning.
17 to Riverdale. This is Yonkers.
17 Q. Ms. Geier, where do you work?
18 MR. GARDNER: This is Yonkers. You're right. I did
18 A. At the U.S. Attorney's office in the Southern District of
19 mix that up as to Riverdale. I apologize. Those four
19 New York.
20 questions were as to Riverdale. 20 Q. How long have you worked there?
21 Your Honor, again as my counsel points out in my ear, 21 A. Since June 21st of this year.
22 this is not an admission to anything. This is simply saying I 22 Q. What is your job title?
23 don't have records. They want the jury to think there is 23 A. I'm a paralegal specialist.
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Page 812 Page 814
1 0aqroli2 Geier - direct 1 0aqroli2 Geier - direct
MR. LANPHER: Your Honor, at this time I would like to MR. LANPHER: Your Honor, the government offers
2 read into evidence Government Exhibit 801, which is a 2 Government Exhibits 501A, 504A, and 505A in evidence.
stipulation regarding certain phone records. If we could put MR. GARDNER: No objection.
3 up Exhibit 801. 3 THE COURT: Admitted pursuant to stipulation.
Ladies and gentlemen, I'm not going to read through (Government's Exhibits 501A, 504A, and 505A received
4 this line by line. Essentially, this is a stipulation between 4 in evidence)
5 the parties as to certain exhibits which are phone records that 5 Q. Ms. Geier, you said that after you reviewed these phone
6 the parties stipulate are for certain phones subscribed to and 6 records, you prepared a summary chart?
7 used by James Murray and Joseph Olivieri during certain 7 A. Yes, I did.
8 periods. The relevant exhibits are Government Exhibits 501, 8 Q. Handing you what's been marked as Government Exhibit 500,
9 502, 504, 505, 508, and 509. 9 do you recognize that?
10 Your Honor, at this time the government moves 10 A. Yes. This is the chart that I created.
11 Government Exhibits 501, 502, 503, 504, 505, 508, 509 and 11 MR. LANPHER: Your Honor, the government offers
12 Government Exhibit 801 in evidence. 12 Government Exhibit 500 in evidence.
13 THE COURT: Mr. Gardner? 13 MR. GARDNER: Is it being offered as a demonstrative?
14 MR. GARDNER: Pursuant to the prior stipulation, yes, 14 I have no objection as a summary chart, to it coming into
15 your Honor. 15 evidence.
16 THE COURT: Admitted pursuant to stipulation. 16 THE DEFENDANT: Admitted as demonstrative.
17 (Government's Exhibits 501, 502, 503, 504, 505, 508, 17 (Government's Exhibit 500 received in evidence)
18 509, and 801 received in evidence) 18 MR. LANPHER: Mr. Barbey, could we put up Government
19 Q. Ms. Geier, I'm going to show you some of these exhibits. 19 Exhibit 500.
20 This is Government Exhibit 501, this is Government Exhibit 504, 20 Q. Ms. Geier, other than the phone records that you just
21 Government Exhibit 505. Do you recognize those, Ms. Geier? 21 identified and that I described and that are described in the
22 A. Yes. 22 stipulation, is there any other source of information for the
23 Q. What are they? 23 data in this chart?
25 (212) 805-0300 25 (212) 805-0300
Page 813 Page 815
A. They are phone records that were provided by the A. No, sir.
2 government. 2 Q. Did you personally enter all of the information in the
Q. In the course of preparing for this trial, have you chart?
3 reviewed those phone records? 3 A. Yes, I did.
A. Yes. Q. Have you reviewed it for accuracy against the actual phone
4 Q. For what purpose? 4 records?
5 A. To create a chart that lists the phonecalls between Mr. 5 A. I have.
6 Murray and Mr. Olivieri that are listed in these phone records. 6 Q. About how much time in total do you think you spent on the
7 Q. Could you describe in general terms how you went about 7 chart to ensure its accuracy?
8 doing that, how you went about reviewing the records. 8 MR. GARDNER: Objection, your Honor.
9 A. I was provided with a list of phone numbers that belonged 9 THE COURT: Sustained.
10 to each of the individuals, and I went through the records page 10 Q. Ms. Geier, could you walk through the columns of the chart
11 by page, marking the phonecalls between each of the numbers 11 from left to right to explain what you included in the chart.
12 provided to me by the government, and created a chart from 12 A. Sure. The first column is just the number. The calls were
13 those flagged phonecalls. 13 just tallied. The second column is the date on which the call
14 Q. Ms. Geier, I'm handing you a box which has in it what have 14 took place. The "From" column is who dialed the call. The
15 been marked for identification as Government Exhibits 501A, 15 "To" column is to whom the call was dialed. The "Time of the
16 504A, and 505A. Do you recognize those? 16 Call" is the time of the call. The "Duration" is the duration
17 A. Yes. 17 of the call as listed on the phone records. And the final
18 Q. What are those? 18 column is the government exhibit number followed by the page
19 A. This is my working set with Post-its that flag the 19 number as indicated on the bottom of the records that were
20 phonecalls between the two individuals. 20 added by the government for identification purposes.
21 Q. Are those copies of the Government Exhibits 501, 504, and 21 Q. When you described the "From" and the "To" columns, you
22 505? 22 said that was the person who dialed the number or to whom the
23 A. Yes. 23 call was made?
25 (212) 805-0300 25 (212) 805-0300

Page 816 Page 818
A. Yes. MR. LANPHER: I want to go through a few more
2 Q. Do you know for certain whether that's the person who 2 examples. Mr. Barbey, could we turn to page 10 of that
actually dialed the phone number, or is that simply the person document, Government Exhibit 500. Zoom in a bit on the middle
3 whose phone it was? 3 part. That's fine.
A. I can't know for certain. The numbers were subscribed to Q. Let's look, for example, at line 141. It says Joseph
4 those individuals or the individual who dialed the call. Any 4 Olivieri, Wall & Ceiling calling card, from Hollywood, Florida.
5 other person can potentially have called, but I don't know. 5 Is that all information that was in the phone records?
6 Q. The duration of the call looks like, generally speaking, 6 A. That was indicated in the phone records, yes.
7 these are recorded in whole minute intervals, is that correct? 7 Q. Were there other times you saw records of Mr. Olivieri
8 A. Yes. That is as it was indicated on the phone records. 8 using a calling card to call from out of state?
9 Q. In preparing this, you looked at Mr. Murray's cell phone 9 A. Yes, there were other examples of that in the records.
10 records? 10 MR. LANPHER: Can we zoom out again, and can we go to
11 A. Yes. 11 the last page, Mr. Barbey. Zoom in on the bottom there.
12 Q. You also looked at Mr. Olivieri's cell phone records? 12 Q. Ms. Geier, this says total calls between Olivieri and
13 A. Yes. 13 Murray 387, is that correct?
14 Q. Were there overlapping phone records at times? 14 A. Yes.
15 A. There were. 15 Q. How did you go about tallying that?
16 Q. What did you do when you found what you believed to be an16 A. 387 can be seen in the tally column of the chart.
17 overlapping record? 17 Q. The next two lines break out how many calls are from Mr.
18 A. In cases where that happened, I tried to combine the two 18 Olivieri to Mr. Murray?
19 calls into one column. In many instances I listed both 19 A. Yes.
20 government exhibit numbers in the final column that the call 20 Q. And vice versa?
21 could be found, the outgoing and the incoming; I listed them 21 A. Yes, that's what they do.
22 both together in the final column of the chart. 22 Q. Now I want to turn your attention to one date in
23 Q. I want to turn your attention to a few parts of the chart. 23 particular, March 10, 2005. Did you review the phone records
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Page 817 Page 819
The first line says the call was on October 2, 2003, from Mr. for that date?
2 Olivieri to Mr. Murray, is that correct? 2 A. I did.
A. Yes. MR. LANPHER: Mr. Barbey, before we turn to that page
3 Q. This call lasted approximately 2 minutes? 3 of the chart, could you please put up Government Exhibit 282,
A. Yes. which is already in evidence.
4 Q. Did you review any phone records from time periods prior to 4 Ladies and gentlemen, this is the deposition
5 October 2003? 5 transcript of Jim Murray which is already in evidence as
6 A. No. Actually -- 6 Government Exhibit 282. You see on the front it's from
7 Q. Do you wish to clarify that? 7 Thursday, March 10, 2005.
8 A. -- yes. I did review phone records from prior to that 8 Mr. Barbey, could we turn to page 51 of that document.
9 time, but there were no calls that were found between the two 9 MR. GARDNER: Objection, your Honor.
10 individuals in that time period. 10 THE COURT: Overruled.
11 Q. The second call there says it is to Joseph Olivieri, Wall & 11 MR. LANPHER: At the bottom you will see at the
12 Ceiling? 12 conclusion of that deposition time noted 11:40 a.m. That is on
13 A. Yes. 13 March 10, 2005.
14 Q. It has the number 516-478-5600? 14 Now, Mr. Barbey, could you put back up Government
15 A. Yes. 15 Exhibit 500 and turn to page 12 of that. Zoom in on the top
16 Q. That's the Wall & Ceiling offices? 16 half.
17 A. That was what was provided to me, yes. 17 Q. These list calls from March 10, 2005, is that correct?
18 Q. Now if we look at the bottom of that page, that first page, 18 A. Yes.
19 it has a call listed from James Murray to Joseph Olivieri 19 Q. On the top line it says it's a call from James Murray at
20 beeper, is that correct? 20 12:15 on March 10, 2005, to Joseph Olivieri's beeper number, is
21 A. Yes. 21 that correct?
22 Q. Is that what was listed in the phone records? 22 A. Yes.
23 A. Yes, it was. 23 Q. Two minutes later there is a call from Joe Olivieri back to
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Page 820 Page 822
1 0aqroli2 Geier - direct 1 0aqroli2 Geier - cross
James Murray on the cell phone, is that right? minute and 1 second, it would show 2 minutes, correct?
2 A. Yes. 2 A. I suppose so, yes.
Q. Then, 13 minutes after that, there is another call from Joe MR. GARDNER: Your Honor as part of the stipulation,
3 Olivieri to Jim Murray? 3 if I can read in paragraph 9 of 801, just so the record is
A. Yes. clear. Paragraph 9. "The phone records for the numbers
4 Q. Then, 7 minutes after that, there is another call? 4 referenced above were kept in minimum 1-minute intervals.
5 A. Yes. 5 Therefore, where phone records reflect phone communications of,
6 Q. Then there are additional calls at 12:54 p.m. and 12:55 6 for example, 1 minute, that can indicate either that one party
7 p.m., is that right? 7 called the other party and was connected to voicemail or that
8 A. Yes. 8 one party left a voicemail or that the parties communicated for
9 Q. Those were things you saw in the phone records? 9 1 minute or less."
10 A. Indeed. 10 Q. Right? Is that your understanding?
11 MR. LANPHER: May I have a moment? 11 A. Yes.
12 THE COURT: Yes. 12 Q. There is no way to tell from the phone records that you
13 MR. LANPHER: Can we put up the last page of this 13 have whether or not the parties actually spoke, correct?
14 exhibit again, Mr. Barbey. 14 A. No, there is no way to tell that.
15 Q. At the bottom it says total calls from Joe Olivieri to 15 Q. Did you see, as you ran through all these phone lists, that
16 James Murray is 305, is that correct? 16 the phone numbers -- I'm sorry -- the phonecalls timewise were
17 A. Yes. 17 within general working hours?
18 Q. And calls from Jim Murray to Joseph Olivieri is 82, is that 18 A. No. There were quite a few that were in very early morning
19 correct? 19 hours and evening hours as well.
20 A. Yes. 20 Q. If we look at that first page, would you consider 7:30
21 MR. LANPHER: No further questions, your Honor. 21 a.m., 7:39 a.m. very early morning hours?
22 THE COURT: Mr. Gardner. 22 A. Not very early morning, no.
23 MR. GARDNER: May I ask that the first page be put 23 Q. Are you familiar that the construction industry tends to be
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Page 821 Page 823
1 0aqroli2 Geier - direct 1 0aqroli2 Geier - cross
back. an early morning industry or not?
2 CROSS-EXAMINATION 2 A. That was mentioned yesterday, yes.
BY MR. GARDNER: Q. So on the first page there is nothing that would be outside
3 Q. Good morning. 3 of ordinary working hours, right?
A. Good morning. A. Not that I see, no.
4 Q. Just a few questions. Look at that first page, calls 1 and 4 Q. What do you recall as being outside of the ordinary working
5 2 and I guess 3. 5 hours? What time frame? I'm not asking for you to recall a
6 A. Yes. 6 specific date.
7 Q. I guess actually calls 2 and 3. Do you see it says Joseph 7 MR. LANPHER: Objection, your Honor. She is a summary
8 Olivieri, Wall & Ceiling? 8 witness. Defense counsel can certainly point to records in the
9 A. Yes. 9 phone chart.
10 Q. Those are calls from James Murray to the Wall & Ceiling 10 THE COURT: Sustained.
11 number? 11 MR. GARDNER: She has put it together and she says
12 A. That is what is indicated, yes. 12 that it occurred.
13 Q. Did you do any calculation as to how many calls out of the 13 Q. Do you remember about what year it occurred or what month?
14 387 were 2 minutes or less? 14 A. No, sir.
15 A. I did not. 15 MR. GARDNER: Can we put up page 2.
16 Q. Would you agree most of them are 2 minutes or less? 16 Q. Do you consider any of those times outside the ordinary?
17 A. Yes. 17 A. No, sir.
18 Q. 2 minutes. We see all these whole number intervals: 1 18 Q. How about page 3?
19 minute, 1 minute, 2 minutes, right? Is that because the 19 A. No.
20 phone -- 20 Q. Page 4?
21 A. That was how they were indicated on the records. 21 A. No. I do understand now that the working hours are earlier
22 Q. That's the maximum, right? For example, the first line, 22 than business working hours.
23 item call 1 says 2 minutes. That's the most. So if it was a 23 Q. You mean there were some calls that were before 9:00 or
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Page 824 Page 826
1 0aqroli2 Geier - cross 1 0aqroli2
9:30? (Jury not present)
2 A. Yes, as we have already seen. 2 THE COURT: We will adjourn for about 10 or 15 minutes
Q. As we have seen, there are some that say 7:30 or somewhere and then take up the matters at that point.
3 around that. Nothing in the middle of the night is what I'm 3 (Recess)
really asking. Right? THE COURT: There are three sets of issues that we
4 A. Not to my recollection. There certainly could be. 4 need to address. The first is the government's introduction of
5 Q. You don't recall anything like that, right? 5 the declaration of Joseph Olivieri. Second are the issues in
6 A. Nothing comes to mind at this moment. 6 the government's letter dated October 25 that I mentioned
7 Q. To clarify, do you have it in front of you, the list? 7 earlier this morning. Third is the question of the testimony
8 A. Yes. 8 of Mr. Marone and the balance of the schedule for today. If we
9 Q. Turn to 140 and 141. Just so we are not confused, those 9 have any other matters, you may want to mention them at this
10 two are in not whole minutes, correct? 10 time so we can take them up.
11 A. Correct. 11 MS. ZORNBERG: I think those are the issues, your
12 Q. Is that because those are phone card calls, so those 12 Honor.
13 actually keep the exact second? Or portion of a minute I 13 THE COURT: With regards to the declaration of Mr.
14 should say. 14 Olivieri, I am inclined to admit the declaration. There was
15 A. What is in the chart is exactly what was indicated on the 15 some testimony I believe during Mr. Gardner's cross-examination
16 records. If the records showed that it was in a less than 16 of Mr. Murray in which there was some questioning concerning
17 whole number increment, that's what I have in the chart. 17 who signed the documents pertaining to the promissory note and
18 Q. You would agree that as you put this together, the only 18 whether that transaction involved Mr. Olivieri directly or
19 ones you saw that were less than whole number increments were 19 whether it was strictly a matter of Seavrus realty holding.
20 the phone cards? 20 You may recall that questioning and that testimony. The
21 A. I suppose that could be the case. I'm not sure. 21 government came back on redirect and put up the promissory note
22 Q. The phone records that you utilized to compile this list, 22 to indicate clearly that it was signed by both Mr. Olivieri and
23 did you personally obtain those or were those given to you by 23 by Seavrus separately.
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1 0aqroli2 Geier - cross 1 0aqroli2
other government representatives? To the extent that the defendant has raised some
2 A. They were provided to me. 2 question that might be interpreted as suggesting that the
Q. By whom? defendant had nothing to do with Seavrus or that he had no
3 A. By the Assistant U.S. Attorneys. 3 knowledge of what Seavrus is or had no indication that Seavrus
MR. GARDNER: Thank you, Judge. had or that he knew about Seavrus' involvement in this
4 MR. LANPHER: No further questions. 4 transaction, I think this document would constitute a
5 THE COURT: You may step down. 5 sufficient admission that would go to that issue and therefore
6 (Witness excused) 6 would be relevant to that portion of the charge that relates to
7 MS. ZORNBERG: Your Honor, at this time the government 7 those transactions. That is my ruling on that matter.
8 requests a recess so that we can take up the issues that were 8 MR. GARDNER: Your Honor, may I point out one issue
9 flagged this morning. 9 with that ruling?
10 THE COURT: It's 10:30. We will take a half-hour 10 THE COURT: Yes.
11 recess. At that point I will give the jury some more 11 MR. GARDNER: It is part of the stipulations that are
12 information and direction as to where we stand and what the 12 in evidence that he was the president of Seavrus, Mr. Olivieri.
13 time frame is for the balance of the trial. 11 o'clock. 13 So we are not contending as to Seavrus that he wasn't involved
14 (Continued on next page) 14 with it or wasn't the president. As part of the stipulations
15 15 that are in evidence, we have conceded that he was the
16 16 president of Seavrus. I think that was Michele Bonsignore's
17 17 stipulation, might be others as well, regarding the documents
18 18 that came in.
19 19 So, your Honor, I would ask you to reconsider. I do
20 20 understand the Court's ruling on that issue, but I don't think
21 21 that is an issue of dispute. There was an issue of dispute as
22 22 to why he signed personally and was it a guarantee or was it
23 23 direct, and that kind of stuff. But as to Seavrus, I don't
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Page 828 Page 830
think there is any defense issue. MS. ZORNBERG: A stipulation would be fine for us on
2 THE COURT: Thank you. 2 that point.
Ms. Zornberg? THE COURT: Mr. Gardner?
3 MS. ZORNBERG: Your Honor, unless the Court is 3 MR. GARDNER: We would stipulate to that.
inclined to alter its ruling, we stand by what we said on this THE COURT: You may enter a stipulation.
4 at side bar as to why we believe it is appropriate and 4 The second W-2 the government proposes to introduce is
5 admissible under the Federal Rules of Evidence as a defendant 5 that of 2007 to show Mr. Olivieri's earnings from the Wall &
6 admission. 6 Ceiling Association in that year. Mr. Gardner, did you wish to
7 THE COURT: Thank you. I have heard Mr. Gardner's 7 address that issue?
8 arguments, and I will stand by the ruling. 8 MR. GARDNER: Yes, your Honor. That is, of all of
9 Let's go, then, to the letter of the 25th of October 9 these, the most objectionable to the defense. I can't think of
10 from the government raising three matters. One, the government10 a legitimate reason to put a dollar value before the jury. He
11 asks the Court to take judicial notice of the date of Mr. 11 had the job during that time period. We entered into a
12 Murray's indictment as May 24, 2006. Mr. Gardner, did you wish12 stipulation to that effect. The only purpose that I can
13 to address that? 13 imagine for saying the dollar amount is to somehow influence
14 MR. GARDNER: I don't have it in front of me. I think 14 the jury that this figure was inflated or inappropriate or just
15 it was brought out. 15 for people who are low wage earners to look poorly upon Mr.
16 THE COURT: Mr. Murray did, during the course of his 16 Olivieri or be jealous or something of a negative nature.
17 direct testimony, indicate some date or some general time frame17 The only thing the government points to, your Honor,
18 within which he was indicted. I don't know if he was asked 18 is that they say they want to put the exact dollar amount
19 specifically whether it was May 24, 2006, but I believe that 19 before the jury because it shows that Mr. Olivieri -- their
20 the testimony he gave indicated that he had been indicted 20 position, although I don't exactly follow it, is that he then
21 sometime around that time frame. Is there any reason why the 21 perjured himself somehow to keep his position with the Wall &
22 government needs to have the precise date? 22 Ceiling Association. I don't follow that logic. But even so,
23 MS. ZORNBERG: Your Honor, we believe it would be 23 there is no point.
25 (212) 805-0300 25 (212) 805-0300
Page 829 Page 831
helpful to the jury, as I think it will become clear in closing He certainly had the job during that time with the
2 arguments. A lot of the evidence circles around a time line of 2 Wall & Ceiling Association. Other than DNO, that was his
events that happened. It is important to the government's principal place of employment, and we don't dispute that. It
3 case, and in discussions with defense counsel at various 3 is just the dollar amount that we take issue with.
points, he has indicated that the time line is important. This MS. ZORNBERG: May I have just a moment, your Honor?
4 is a very basic date. It's in the court records. It's in the 4 THE COURT: Yes, Ms. Zornberg.
5 public docket. We see no prejudice to just having that there 5 MS. ZORNBERG: Your Honor, if the defendant, as
6 for purposes of the time line. 6 defense counsel has just indicated, is willing to enter a
7 Mr. Murray was not the only witness. Mr. Greaney 7 stipulation that in 2007 Mr. Olivieri's principal employment
8 referenced that he couldn't recall when Mr. Murray was 8 and source of income outside of DNO was -- actually, I believe
9 indicted, but he testified as to conversations before and after 9 he testified in his deposition that DNO no longer existed as of
10 the indictment date that he had with the defendant. So there 10 2007. If the defendant would enter into a stipulation that
11 are a few witnesses. The fact of the indictment has been 11 simply says that as of December 2007 his principal and sole
12 mentioned repeatedly at the trial. We think that it is helpful 12 employment was his salaried position with the Wall & Ceiling
13 in clarifying and not at all prejudicial for the Court to take 13 Association, that is sufficient for us, and we would consent to
14 judicial notice of what that date is. 14 offer that stipulation in lieu of the W-2.
15 THE COURT: All right. I will grant the government's 15 MR. GARDNER: I would just like a provision of other
16 request on that basis. 16 than funds earned from construction or excavation or something
17 The second request concerns Mr. Olivieri's W-2 state- 17 to that effect. We'll draft something.
18 ments for 1999 and 2000 and 2007 in part, according to the 18 THE COURT: Prepare some appropriate stipulation that
19 government's letter, to enter into the record Mr. Olivieri's 19 addresses the issue to your mutual satisfaction.
20 residence in 1999 and 2000 in Briarcliff Manor. Is this a 20 The third issue concerns the expense report of Mr.
21 matter that requires introduction of the W-2 or could there be 21 Olivieri contained in Government Exhibit 778. This expense
22 a stipulation to the fact that that was Mr. Olivieri's 22 report relates to a trip that Mr. Olivieri made to Florida that
23 residence at that time? 23 was the subject of the testimony of Mr. Rizzuto, who stated
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Page 832 Page 834
that he met with Mr. Olivieri in connection with or in the improper about it.
2 course of that conference in Florida in that time frame and at 2 Here it is really misleading for Mr. Gardner to say he
which Mr. Olivieri made certain statements to which Mr. Rizzuto didn't cross any line to go there. His whole cross-examination
3 testified. 3 was focused on saying, first, at the prior trial he testified
The government points out that the expense report is a about, the defendant was found not guilty. The government
4 proper business record of the Wall & Ceiling Association and 4 struck it, but it was there, and everyone knows why Mr. Gardner
5 would be admissible in that context as an admission of the 5 tried to bring that out, because in the real world he was
6 defendant. 6 trying to tell the jury that Mr. Rizzuto is not a credible
7 Mr. Gardner, what is your objection to that? 7 witness.
8 MR. GARDNER: Your Honor, my objection is improper 8 The rest of the cross-examination was devoted to a
9 bolstering. The witness testified as to what he said were 9 discussion of didn't you know Moscatiello on your own. There
10 certain events, and so be it. But to put in extraneous 10 was no reason in the world for Mr. Olivieri to be used as a
11 evidence to bolster that witness's testimony. The government 11 go-between. The whole purpose of that cross-examination was to
12 says it is black letter law. I think it is the reverse. I 12 suggest that it didn't happen, that Mr. Rizzuto made it up,
13 think black letter law says you are not allowed to do that. 13 that Joseph Olivieri never met in that Loew's hotel in
14 The government does cite what would be exceptions to 14 Manhattan -- in Florida to threaten him with a world of hurt.
15 that potential black letter law. They are trying to show 15 That was the purpose of the cross-examination. It was
16 normally you wouldn't be able to do that -- I would say this is 16 clear. Even though the government thinks Mr. Rizzuto handled
17 a concession -- but here they say that they think some of the 17 it very well, the purpose of this cross-examination was to
18 cross-examination may have led to that. I don't think it did, 18 attack this witness's credibility. So under the law it is
19 your Honor. 19 clear that the government is allowed to put in what is a
20 I don't think there was any question as to the Florida 20 business record, an admission of the defendant himself that he
21 trip, whether they traveled on any trips together. I didn't 21 was there. That is relevant, and it should be admitted.
22 contest whether or not they were at conferences together or 22 THE COURT: Mr. Gardner?
23 dinners together. None of that was the subject of 23 MR. GARDNER: Your Honor, at most it is bolstering
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Page 833 Page 835
cross-examination at all. Now, without that being the subject that my client was in Florida. It is not even a document from
2 of cross- examination, the government says, well, we should be 2 Mr. Rizzuto or any evidence of Mr. Rizzuto's that he was in
able to submit extraneous documents to bolster the testimony Florida. Again, your Honor, I didn't contest the Florida trip.
3 that was in dispute. 3 I didn't contest that they were in Florida. I didn't touch
THE COURT: Ms. Zornberg? upon that on cross-examination, nor does counsel for the
4 MS. ZORNBERG: Your Honor, first of all, it is not 4 government say I did.
5 extraneous at all. It's direct evidence that would be 5 THE COURT: Are you prepared to stipulate that your
6 admissible under Rule 401 as relevant evidence because it goes 6 client was in Florida at that time?
7 to the relationship that Mr. Olivieri had with the witness who 7 MR. GARDNER: My hesitancy is that a stipulation read
8 testified and where they were at the same time. 8 by the Court or by the government, or by myself even, tends to
9 The piece that Mr. Rizzuto testified about, about his 9 carry more weight and may lead to some questioning on the
10 dealings with Mr. Olivieri, who acted as a messenger on behalf 10 jury's part of why it is so important that now it's being
11 of the Genovese family and Louis Moscatiello, is one of the 11 stipulated. It's not a part of the case that I dispute, but I
12 most central pieces of the case with reference to the perjury 12 don't like the idea of reading a stipulation at the end of the
13 count. So, to call this extraneous is incorrect. 13 government's case to the jury regarding it. I think that draws
14 There is nothing remotely unusual about the government 14 improper focus upon it.
15 offering independent evidence of facts that are relevant to the 15 THE COURT: I'm going to take this matter also under
16 case that a cooperating witness also testifies about. That is 16 advisement and look at the cross-examination of Mr. Rizzuto and
17 routine. 17 from that we can make a determination as to the extent to which
18 The law that we cited is that in addition to being 18 the cross-examination placed Mr. Rizzuto's credibility into
19 admissible as relevant evidence as part of the government's 19 question and therefore opened the government to present
20 direct case, the law is clear that once the veracity of a 20 bolstering testimony.
21 witness is attacked, the government has every right to offer 21 Finally, the issue of Mr. Marone. The government
22 evidence that bolsters the witness's veracity. That's not new 22 indicates that it believes Mr. Marone's testimony is important
23 law. That's what all the cases stand for. There is nothing 23 enough to warrant his being taken tomorrow if he is feeling
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Page 836 Page 838
1 0aqroli2 1 0aqdoli3
well enough. Mr. Gardner indicated that that might be of the defense suggestion that these business deals were not
2 essentially taking him out of turn. We have two options. One 2 with Jim Murray but were rather with corporate shells or other
is to adjourn for the day and bring Mr. Marone tomorrow first things.
3 thing and then Mr. Gardner can present his case, or we can 3 We'll note that the subject of this testimony has been
proceed with Mr. Gardner's case as soon as he is ready today, provided in the 3500 material. Defense counsel is well aware
4 defendant's case, and take Mr. Marone tomorrow, assuming, Mr. 4 of what Mr. Marone is expected to testify to.
5 Gardner, that you can show some reason why it would be 5 THE COURT: All right. Mr. Gardner, what is your view
6 prejudicial to the defense to take Mr. Marone out of turn. 6 as to the defense preference for proceeding with your case this
7 Perhaps we might minimize prejudice if the government 7 afternoon or waiting until after Mr. Marone testifies tomorrow,
8 were to give some good faith proffer of exactly what Mr. Marone 8 if he is ready to testify?
9 would testify to that would set the defense in context and 9 MR. LANPHER: Your Honor, before Mr. Gardner speaks, I
10 allow for an informed decision as to whether or not taking Mr. 10 will just clarify one point. We will be happy of course to
11 Marone out of turn would be of any substantial prejudice to the 11 have the defense put on additional witnesses after Mr. Marone
12 defense 12 testifies if he feels that, you know, he needs additional time
13 (Continued on next page) 13 to rebut whatever Mr. Marone says. We could have some of the
14 14 defense case this afternoon and then additional testimony
15 15 tomorrow.
17 17 MR. GARDNER: I would recommend going forward with the
18 18 defense case this afternoon, if it is agreeable to the Court.
19 19 The only -- the statement by Mr. Marone, I would say,
20 20 Judge, we could do without. There has been a lot of testimony
21 21 concerning the projects and the like, and they're trying to I
22 22 guess bolster that or include in that some statements with
23 23 Mr. Marone afterwards. Mr. Marone doesn't have personal
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Page 837 Page 839

1 0aqdoli3 1 0aqdoli3
MR. LANPHER: We're happy to give such a proffer, your knowledge. We might as well just put in those statement.
2 Honor. 2 Perhaps it could even be done by government stipulation, by
Mr. Marone operates a drywall company called Component testimonial, but I would rather not. I would rather have him
3 and was himself a member of the Wall & Ceiling Association. He 3 here to testify, if not.
would testify in essence to a number of conversations that he Again, your Honor, I think it is cumulative. I don't
4 had with Mr. Olivieri over the years about On Par. 4 think they need it. I think they should go forward with it. I
5 First, he would testify to a number of complaints that 5 think we should proceed in the case. I want to put on a case.
6 he raised to Mr. Olivieri about On Par, about how On Par was 6 I guess the only legal question -- well, as is being
7 undercutting jobs, he believed On Par was cheating on jobs, and 7 pointed out to me, it is also -- as counsel stated, he says he
8 how Component had lost jobs to On Par. His complaints were the8 is going to testify about reading the Indictment and then
9 subject of routine conversation at Wall & Ceiling Association 9 having a conversation with my client. To this point in trial,
10 meetings, putting Mr. Olivieri wholly on notice of the 10 every time I've attempted to ask a person about whether they
11 complaints about On Par, about how Jim Murray was cheating the 11 have read the Indictment, there has been an objection and it is
12 Benefit Funds. 12 sustained and it has been kept out to this point. I understand
13 Then he would testify to another set of conversations 13 it is coming in later. So I don't think that is an appropriate
14 later on after Mr. Olivieri was indicted in this case, where 14 area and I would object to that area of questions anyway.
15 Mr. Marone read the Indictment and spoke to Mr. Olivieri about 15 And the second problem, your Honor, is the Rule 29
16 it. Mr. Marone was upset to read the charges that Mr. Olivieri 16 motion at the close of the government's case. The defense
17 had engaged in conduct with Jim Murray, had done business with 17 attorney ordinarily and I intend to make a motion for a
18 him, had given him a loan. And Mr. Olivieri responded and 18 directed acquittal. I don't know how that works if -- I guess
19 said, in a somewhat dismissive manner, saying, yeah, I just did 19 I can somehow parse out the evidence, perhaps, or I could make
20 a little work for the guy up in Riverdale, it's not such a big 20 it now and then make it again after he testifies. I am not
21 deal. He gave me a loan but I paid him the money back. Those21 sure how that works.
22 kinds of comments, which we think are significant as defendant 22 THE COURT: This would not be a problem. You could
23 admissions but also significant particularly in light of some 23 make a motion at one point or you can renew the motion at some
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Page 840 Page 842
other point. thought in terms of streamlining the issue, we would call her.
2 MR. GARDNER: OK. That's what I was thinking. 2 She, your Honor -- obviously, the checks were made out
THE COURT: Or hold it up until the end. That should to Ms. Bonsignore. There has been a lot about her name here as
3 not be a deterrent of any kind. 3 a fact witness as well as counsel.
The question is whether you wish to proceed with your And Mr. Greco is, I believe the government knows, is a
4 case this afternoon, as we had scheduled yesterday, or whether 4 trustee of the Funds.
5 you would prefer to put your case on after Mr. Marone 5 And Mr. Wagner, as we discussed yesterday, is -- and
6 testifies. 6 we discussed today as a witness again, your Honor, Rob Wagner
7 MR. GARDNER: I would rather proceed this afternoon, 7 was running the project in Riverdale and is the person who
8 your Honor. 8 actually contracted with my client.
9 THE COURT: All right. Let's then proceed that way. 9 THE COURT: Mr. Greco is going to testify to what as a
10 Yes. 10 trustee of the Funds?
11 MS. ZORNBERG: Your Honor, could we ask that defense 11 MR. GARDNER: Mr. Greco is -- again, your Honor, I'm
12 counsel identify who he intends to call as he was speculative 12 trying to preface the defense. I'm not sure that he would
13 about it yesterday. We followed up in the evening and 13 testify.
14 requested a notification and did not receive any response. 14 He would testify -- you are turning around. This
15 THE COURT: All right. Mr. Gardner, could we have 15 again goes -- it depends on how the full testimony comes in
16 some clarity on that issue? 16 from the government. But he would be a witness as to how the
17 MR. GARDNER: Yes, your Honor. 17 Funds operated, what Mr. Olivieri did on the Funds regarding On
18 THE COURT: I assume your witnesses know who is 18 Par, the lawsuit against On Par, the audits that were done
19 testifying today. 19 against On Par. Mr. Olivieri's knowledge of those audits has
20 MR. GARDNER: The order is somewhat dependent on the20 been placed into question, which I didn't expect, but the
21 witnesses' appearance, which one is here timely, but 21 government has placed it into question potentially so that
22 Mr. Wagner, your Honor, and Ms. Bonsignore, and perhaps 22 Mr. Olivieri's knowledge of the two earlier audits, Mr. Greco
23 Mr. Greco. 23 may be able to testify as to that, I would expect. Those type
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Page 841 Page 843
MS. ZORNBERG: Judge, I feel constrained to point out of issues, your Honor, without having to detail the entire
2 that two of the names that were just uttered now were not names 2 testimony.
that Mr. Gardner raised when the Court asked him this very THE COURT: All right.
3 question yesterday. 3 MS. ZORNBERG: Your Honor, can we have a similar
THE COURT: What was the third name? proffer as to what Ms. Bonsignore will testify about? I think
4 MR. GARDNER: Mr. Greco. 4 the government is entitled to know if it is just about checks
5 It is my understanding, as I'm being told by my 5 in her account or if there is some defense of reliance on
6 associate, we not only mentioned those names, we mentioned them 6 lawyer's advice that is being made? It is very unclear.
7 more than a couple of times, your Honor. And we discuss them 7 Ms. Bonsignore, as the Court knows, tried to represent
8 more than a couple of times. 8 the defendant in this criminal proceeding, was disqualified,
9 Who didn't I mention? 9 represented Mr. Olivieri at the deposition. So calling
10 MS. ZORNBERG: Your Honor, could we have a proffer as 10 Ms. Bonsignore, that is a very loaded witness in this context.
11 to the relevance of Ms. Bonsignore's testimony and Mr. Greco's 11 She agreed to step down as criminal counsel in this case after
12 testimony, and also an indication of whether there is any 12 the government pointed out in a brief to this Court that we
13 discovery that the defendant was required to produce to the 13 believed her representation would violate a number of
14 government that he will use with either of those witnesses? 14 disciplinary rules because she had permitted Mr. Olivieri to
15 MR. GARDNER: There is no discovery, your Honor. 15 lie, essentially, during his deposition.
16 And part of the change that I made was after our 16 So if there is something more than just she is being
17 argument on the record yesterday, where counsel for the -- 17 called about the checks in her account, I do think we are
18 where I did list the potential attorneys that would testify, 18 entitled to have some proffer.
19 counsel for the government objected to certain of those 19 MR. GARDNER: Well, this is interesting, your Honor,
20 attorneys, not Ms. Bonsignore, with the other ones. They said 20 because as counsel and I have -- for the government have argued
21 they didn't have direct evidence and there are other issues and 21 in the past, they've explained to me that the principal reason
22 they weren't involved. 22 to move to exclude her as counsel was because of her potential
23 There was no objection made to Ms. Bonsignore. I 23 to be a witness in this case.
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Page 844 Page 846
MS. ZORNBERG: It was that, too. Of course. examination, your Honor, there is no reciprocal discovery that
2 MR. GARDNER: That's clearly detailed in their papers. 2 the government should receive or exists. As their own
So any surprise that she's now a witness in this case is testimony and affidavits state, those records are not found.
3 somewhat tempered by the motion practice that occurred 3 They are free to cross-examine Ms. Bonsignore on that subject,
previously. as I expect they will.
4 She would testify to, as I indicated yesterday, we've 4 MS. ZORNBERG: Your Honor, if the testimony of
5 asked for a good faith charge. She was the attorney during the 5 Ms. Bonsignore is limited solely to her representation of
6 deposition. She was the attorney during Cambridge. She was 6 Mr. Olivieri regarding Seavrus, then we agree that she has
7 the attorney during many matters. In addition to having 7 previously informed the government and stipulated that she has
8 factual knowledge, she was the attorney that was advising my 8 no records regarding her representation of Mr. Olivieri on the
9 client. And that's directly relevant to the good faith charge 9 Seavrus matter.
10 that we've requested. 10 But we are not hearing that today. We are hearing --
11 We've indicated to the government we are requesting 11 if Mr. Gardner intends to examine this witness to show a good
12 that good faith charge, which we expect counsel to testify, 12 faith, to ask for a good faith charge during the deposition
13 where we are streamlining it because I think she is the most 13 taken by the government, that is an entirely different ball of
14 relevant. Rather than picking pieces, she was the attorney 14 wax. And under Rule 3500, Title 18, United States Code, the
15 advising him throughout. And as counsel has brought out 15 government is entitled to have documents that could be relevant
16 testimony, she was there representing him in his individual 16 to its cross-examination. We do not believe that we could
17 capacity, as opposed to the Wall & Ceiling Association. 17 effectively cross-examine Ms. Bonsignore regarding matters
18 MS. ZORNBERG: Your Honor, just one last point on 18 other than her representation of Seavrus without having the
19 this. 19 access we are entitled to to her records involving her
20 If Ms. Bonsignore is to testify, clearly there will be 20 representation of Joseph Olivieri over time -- over time.
21 a waiver of attorney-client privilege. And in that instance, 21 It goes to her credibility. It goes to her
22 particularly given the issues now that the defense counsel is 22 relationship with the defendant. It goes to the extent to
23 raising, the government is entitled to discovery of all of 23 which she made money through her representation of the
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Page 845 Page 847
Ms. Bonsignore's files regarding her dealings and defendant. It goes to her motive to be honest or dishonest in
2 communications with Joseph Olivieri. That is routine. The 2 this proceeding.
attorney-client privilege will be waived and the government has If there is a waiver of attorney-client privilege, we
3 a right to see that. 3 are entitled to request those records and to have them and to
We believe that Mr. Gardner did not raise on the have an opportunity -- a fair opportunity to review them before
4 record with this Court that he intended to call Ms. Bonsignore 4 cross.
5 because he hoped to put her up by surprise. And if he's going 5 And my final point, your Honor, is that this is a
6 to call this witness, we would request that she be called 6 perjury trial. So if Ms. Bonsignore intends to take the stand
7 tomorrow, and that in the meantime, by the end of business 7 and offer some testimony about how she fully discussed with
8 today, since there is a waiver of the privilege now that is 8 Mr. Olivieri how he would testify to these questions and she
9 becoming clear, that she be required to make available to the 9 felt that they were completely legal and honest, that is
10 government her complete set of files, attorney notes relating 10 critical testimony. The government, particularly given the
11 to her representation of Mr. Olivieri. 11 type of charge, we are entitled once there is a waiver of
12 MR. GARDNER: Your Honor, twice yesterday on the 12 attorney-client privilege to obtain all the books and records
13 record, as my associate is showing me, we discussed 13 relating to her representation and meetings with Joseph
14 Ms. Bonsignore and her testimony. Counsel during the evening 14 Olivieri that bear on what is perhaps the central issue of the
15 hours sent us letters and then documents. They never 15 trial.
16 questioned the testimony of Ms. Bonsignore. 16 THE COURT: Mr. Gardner, last word, and then --
17 She has rearranged her schedule to accommodate being 17 MR. GARDNER: It is very nice, they have excluded her
18 here this afternoon. Counsel -- and I'll remind the Court, the 18 as being counsel because she was a witness and because she was
19 first thing that counsel ruled upon was an affidavit regarding 19 present during the deposition and now they somehow, although
20 my client. One of the reasons that the government wanted to 20 they are not directly objecting, they are raising noise about
21 put in that affidavit is because Ms. Bonsignore and my client 21 her testimony.
22 both indicate they don't have documents regarding that subject. 22 THE COURT: No. Mr. Gardner, I don't hear the
23 Regarding the subject matter of my intended direct 23 government objecting to Ms. Bonsignore being a witness. And I
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Page 848 Page 850
also agree with you that there was sufficient indication that My understanding, she has represented a number of
2 she might be a witness both early on and during the discussion 2 times that it was files that were lost, not just Seavrus. I
that we had yesterday at the sidebar. will look at her affidavit.
3 The issue is not whether she is a witness but whether 3 But, again, your Honor, I don't have -- there is an
if she is a witness the government is entitled to documentation implication that there are notes or relevant documents that
4 that may pertain to her testimony. 4 somehow I have that I am not sharing with the government. I
5 MR. GARDNER: Your Honor, it's my understanding -- 5 don't --
6 I'll check with her again -- that there is nothing other than 6 THE COURT: I don't think that is the application,
7 what the government has provided to us, which are certain 7 Mr. Gardner.
8 e-mails between the two of them, and which, again, your Honor, 8 The question is whether, if Ms. Bonsignore testifies,
9 the government has provided to us, as well as the public 9 the government is entitled to any documents that she may
10 record. There was submissions to Judge Haight. This was part 10 have -- it is not a question of you having, but whether she has
11 of what the government supplied to us, your Honor, and then 11 documents that you may not have asked her for because it was
12 there was Judge Haight's ruling. So that would be her records. 12 not clear exactly what she may be testifying to. And if she
13 Other than that, there aren't any. 13 has any such documents that may inform her testimony, then the
14 THE COURT: All right. Is she going to testify 14 government says that they are entitled to receive them before
15 pertaining to her representation of Mr. Olivieri during the 15 she testifies.
16 course of that deposition? 16 MS. ZORNBERG: And, your Honor, just further to that
17 MR. GARDNER: Yes, your Honor. 17 point, in the stipulation that the parties have signed and
18 THE COURT: All right. The question the government 18 which Ms. Bonsignore approved, she acknowledged that her law
19 poses, one that I think is a fair one, is are there records 19 office moved in 2005, two years before Mr. Olivieri was even
20 pertaining to that representation, notes that she may have 20 deposed. She was actively involved prior to his deposition in
21 taken before or after or during the course of the testimony, 21 writing letters to Judge Haight trying to fight this
22 records concerning compensation that she may have had, 22 deposition.
23 retainers? 23 The notion that Ms. Bonsignore, who has represented
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Page 849 Page 851
You are saying that she has absolutely zero insofar as Joseph Olivieri personally for over a decade in his individual
2 her long-term representation of Mr. Olivieri on those matters? 2 capacity, representing DNO, his businesses, representing
MR. GARDNER: You will recall, your Honor, I'm not Seavrus, representing the Wall & Ceiling Association, the idea
3 sure what the date is, but the date that her records were lost 3 that Ms. Bonsignore suddenly magically has no documents is
is involved in this, and they can cross-examine if they don't patently incredible to us. And to prevent a prejudice to the
4 believe those records are truly lost. But I have not seen 4 government, if Ms. Bonsignore is here today, then we request
5 anything, your Honor. I don't have anything. She has a 5 that she be put under oath by the Court for a very brief
6 long-term relationship with Mr. Olivieri in terms of 6 hearing where the court can make its own inquiry as to what
7 representing him. I would not expect there to be a separate 7 files she has and about where they are and, you know, how long
8 retainer for this. 8 the representation -- enough so that she has identified under
9 I asked her for any notes or documents. I have been 9 oath what she possesses and she can go back to her office and
10 provided with nothing. 10 provide that stuff. An agent can go there today. And we can
11 MS. ZORNBERG: Your Honor -- 11 have an opportunity to copy and examine it. And then she could
12 THE COURT: Unless I am wrong, Mr. Gardner, the 12 be put on the stand tomorrow.
13 records that were lost, were they records pertaining to 13 THE COURT: All right. If the documents that were
14 Seavrus, or were they records of everything that she had in her 14 lost because of the move occurred in 2005, Mr. Gardner, then
15 possession at the time that she moved offices? In other words, 15 between 2005 and 2007, when the deposition took place --
16 somehow everything was lost in transit -- 16 MR. GARDNER: What documents would she have?
17 MR. GARDNER: Yes. 17 Your Honor, I will ask her again. But the idea that a
18 THE COURT: -- and she ended up at the other office 18 witness should be cross-examined by the Court, or the idea that
19 with every file cabinet empty? 19 she somehow has something that is -- other than the e-mails
20 MR. GARDNER: My understanding, and I will check with 20 with the government, other than the letters that were written
21 her today, was that it was not just Seavrus, the file on 21 to the Court and the government, other than all of those items,
22 Seavrus, that was lost, it was the bulk -- quite a number of 22 I can't even -- what would there be? That is what the record
23 her files that were lost. I will look at her affidavit. 23 would be.
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Page 852 Page 854
And, your Honor, for the government to say, well, her she may have.
2 entire office becomes open because she is testifying, well, it 2 All right. Anything else?
doesn't. With regard to the deposition, there are no records. MR. GARDNER: The only thing we have, I have a
3 I will ask her again. The government can cross-examine her on 3 question. Being a perjury case, I didn't know how -- I know
it. we're going to have a jury charge, but we wanted as a defense
4 And, you know, I understand reciprocal 3500. Your 4 to propose a verdict form to be given to the jury. Because it
5 Honor, I received 3500 material on an ongoing basis up to 5 seems that there are three issues that need to be resolved.
6 the -- beyond I think the night of the trial that we got them. 6 One is was there an intentional lie, do the jurors agree on a
7 So 3500 is not this generous rule that provides for specific 7 particular intentional lie, and was that material. And I think
8 timing, and there has been no violation. But there isn't any; 8 it is important for the defendant to have a verdict sheet so
9 there are no documents. 9 that if there is any -- as the Court will instruct the jury,
10 I understand, the government is somehow attempting to 10 there needs to be unanimous agreement on a particular
11 prevent her from testifying this afternoon. 11 statement, or statements, I should say. And the only way to
12 MS. ZORNBERG: That's not accurate. 12 assure that that is being done is through a verdict sheet.
13 MR. GARDNER: OK. So let her testify. 13 So I have a proposed a verdict sheet that I just
14 MS. ZORNBERG: We are not seeking to prevent her from14 drafted this morning. I will hand it to the government and the
15 testifying. We are briefing the Court as to why 15 Court to offer for its consideration, if that is accepted.
16 Ms. Bonsignore, if she is called, is obviously a critical 16 THE COURT: You may hand it up.
17 witness. And she is a lawyer. And the notion that she has no 17 But it is the practice of this Court to give a general
18 files from a decade of representing Joseph Olivieri, no 18 verdict sheet to the jury simply asking yes or no whether the
19 correspondence, I have yet to meet a lawyer who doesn't have 19 government has proved all the elements of the crime charged
20 any files. It is patently incredible. 20 beyond a reasonable doubt and in accordance with the Court's
21 And the government, based on what's occurred here and 21 instruction.
22 based on other information that we possess, and with no 22 I find that trying to break out elements of every
23 disrespect whatsoever to Mr. Gardner, we cannot accept at face23 crime into a verdict sheet tends to be sometimes not
25 (212) 805-0300 25 (212) 805-0300
Page 853 Page 855
value the representation by Ms. Bonsignore that she has -- just productive.
2 doesn't have any documents. And it's too critical an issue. 2 MR. GARDNER: I understand, your Honor, but, again,
MR. GARDNER: They may not like the answer, your only because it is three sections that I have asked the Court
3 Honor, but that's the answer. There were e-mails. There were 3 to look at.
letters. They have them. If she represented somebody in a THE COURT: Now, Mr. Gardner, what time will your
4 house closing in 2001, that is not relevant to this trial. 4 witnesses be ready to come forward?
5 Maybe those records were lost. 5 MR. GARDNER: Your Honor, 1 o'clock.
6 But if we are talking about deposition records, 6 THE COURT: All right. 1 o'clock.
7 records regarding the deposition and her communications with 7 MR. GARDNER: Thank you.
8 the government and my client, they have those, and they are 8 MS. ZORNBERG: Your Honor, just to be clear, before --
9 free to cross-examine her. There wasn't nothing. There were 9 other than Mr. Marone, Mr. Marone's testimony, there are a few
10 e-mails. There were letters. 10 other items that we still would like to do today with the jury.
11 MS. ZORNBERG: What e-mails? 11 There are a few exhibits that in the transcript -- they are
12 MR. GARDNER: You provided us e-mails between Ben 12 mentioned in stipulations but they weren't admitted on the
13 Torrance and her, numerous ones. There were numerous e-mails 13 record in the transcript. We will do that.
14 provided. 14 We will ask for the judicial notice of Mr. Murray's
15 THE COURT: All right. The issue of whether or not 15 indictment date. We will read the Exhibit 605 that the Court
16 Ms. Bonsignore has records is an open question. If she does 16 ruled on. And then there is one exhibit, Exhibit 604, which
17 testify, the government is within its rights to inquire as to 17 are the bank records out of Ms. Bonsignore's escrow account,
18 what records, if any, she may have. And if there are none, 18 that exhibit was admitted but not published to the jury except
19 then why not. I think that is a fair area of inquiry. 19 for a few of the pages, and it will take about ten minutes but
20 If she appears, that subject could be taken up outside 20 we would like to publish the financial records to the jury.
21 of the presence of the jury. And we'll let it go on from there 21 THE COURT: All right. I am reminded that I have a
22 as to whether she concludes her testimony or may be directed to22 conference at 1:15. So we will say 1:30.
23 come back if she indicates that there are certain files that 23 MR. GARDNER: Thank you, your Honor.
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Page 856 Page 858
THE COURT: All right. Bring in the jury so we can MS. ZORNBERG: Then would it be possible, your Honor,
2 inform them of where we are. 2 to come back at 2 o'clock and then go for the afternoon? It
(Jury present) just gives the government a little time, in light of the fact
3 THE COURT: Thank you. Be seated. 3 that we have just learned who the witnesses are today, to be
I apologize for keeping you waiting. prepared and have an efficient ability to cross-examine.
4 There has been a slight delay in the trial. The 4 THE COURT: How long do you think the testimony of
5 government had one additional witness who was supposed to 5 Mr. Wagner and Mr. Greco and Ms. Bonsignore will take on your
6 testify today and for emergency reasons was not able to appear. 6 direct?
7 So we're going to wait until tomorrow to see whether that 7 MR. GARDNER: Not long in any event, your Honor.
8 witness will be able to appear tomorrow in the morning. 8 Ms. Bonsignore would be the longest. Mr. Wagner and Mr. Greco
9 But in the meantime, the defense will be asked at this 9 will be very quick, but Ms. Bonsignore might be an hour, an
10 point to indicate whether the defendant wishes to present any 10 hour and a half.
11 evidence. And on that point, you may recall that I gave you 11 However, I would ask that we do it maybe as early as
12 some preliminary instructions, and I will repeat those 12 possible only because we can actually fit them all in, come
13 instructions, that in a criminal case the defendant has a right 13 back tomorrow and just have one witness and close. But, you
14 not to present any evidence, and you cannot hold that against a 14 know, maybe we can come back at a quarter to 2 or something
15 defendant who chooses not to testify or to present any 15 like that.
16 evidence. The government has the burden of proof at all times. 16 THE COURT: All right. Let's say 1:45.
17 The defendant does not have any burden whatsoever to prove that 17 (Continued on next page)
18 he is innocent. 18
19 Mr. Gardner. 19
20 MR. GARDNER: Yes, your Honor. 20
21 I think the government is indicating, and I agree with 21
22 them, that we should have a conference for just one second, 22
23 your Honor. 23
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Page 857 Page 859
(At the sidebar) (In open court)
2 MS. ZORNBERG: Your Honor, I think the parties are in 2 MR. GARDNER: Thank you, your Honor.
agreement. There are some additional items that the government I would represent to the Court that the defense does
3 wants to do as part of its direct case before we turn to the 3 intend to call certain witnesses to take the stand to testify.
defense case, reading the stipulation -- THE COURT: All right. The government also has a few
4 THE COURT: I'm sorry, yes. I thought you wanted -- I 4 more technical matters and housekeeping matters, plus some
5 thought that those things would be things that you could put 5 additional presentations that it wishes to make before the
6 off. But if you can't, then, yes, I will indicate that we will 6 defendant's case is presented. In order to allow time for all
7 take those up before the defense. 7 of that, I am going to adjourn at this point until 1:45.
8 MR. GARDNER: Judge, should I just say -- I mean, I 8 So, again let me remind you that during the time that
9 don't -- if that is the close of the government's case, I will 9 you are out, until 1:45 -- it is now 11:45 -- do not discuss
10 say the Rule 29 motion for a directed acquittal. But I don't 10 the case among yourselves or with anyone else on the outside or
11 know if the government is resting, you know, until those 11 have any communication or contact with anyone associated with
12 documents are put in with the stipulations. 12 the case. If any of these things occur, you are directed to
13 MS. ZORNBERG: The Rule 29 motion would be out of 13 inform the Court immediately.
14 earshot of the jury, anyway, and we have no objection to 14 Let me also tell you where we are in general. If all
15 Mr. Gardner making that motion after we put in the rest of the 15 goes well with the presentations this afternoon, and depending
16 evidence but for Mr. Marone and then renewing it after 16 upon the availability of the witness that I mentioned to you
17 Mr. Marone testifies. 17 that the government was going to present today, we will
18 MR. GARDNER: OK. 18 probably conclude the presentation of the evidence tomorrow
19 THE COURT: All I was trying to get, Mr. Gardner, is 19 morning sometime and have the closing arguments of the parties
20 some indication on the record before the jury that you are or 20 probably tomorrow morning again. And if that happens, we will
21 are not putting on a case so that I could tell them what time 21 be able to give you your instructions probably tomorrow
22 to come back. 22 afternoon. And if for some reason it extends because of any of
23 MR. GARDNER: All right. Perfect. I will do that. 23 these contingencies, because of the availability of this
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Page 860 Page 862
1 0aqdoli3 1 0aqroli4
witness who may not be able to appear, we might slip until to one issue that the defendant essentially did not contest as
2 Thursday morning with instructions, but it is likely that 2 a matter of fact does not properly address the question of
tomorrow we will conclude, at the very least, through the bolstering the witness as to a matter that is not in dispute.
3 presentation of the closing arguments. 3 Yes?
All right? 1:45. MS. ZORNBERG: Your Honor, the government respectfully
4 (Jury not present) 4 takes exception with the ruling because our reading of the law
5 THE COURT: All right. Also, I will have a copy of 5 is that a defense lawyer need not cross-examine a cooperating
6 the Court's first draft instructions when you come back. 6 witness about a specific event in order for corroboration on
7 (Luncheon recess) 7 that specific event to come in.
8 8 What the law says is that if the defendant's theory of
9 9 cross-examination is to attack the witness's credibility
10 10 generally about anything, that opens the door for the
11 11 government to put in evidence bolstering the witness's
12 12 credibility. You can put in the cooperation agreement, you can
13 13 go into whether there is a motive to tell the truth or to lie,
14 14 you can put in corroborative evidence of what the witness has
15 15 been telling the jury.
16 16 So we respectfully would ask the Court to reconsider.
17 17 While Mr. Gardner may have chosen not to ask specifically about
18 18 the Florida convention, he did attack the witness's
19 19 credibility. That is our view. We would respectfully request
20 20 that the Court reconsider that.
21 21 THE COURT: Mr. Gardner, anything else?
22 22 MR. GARDNER: No, your Honor. Thank you.
23 23 THE COURT: Thank you. I'll take that into
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Page 861 Page 863
AFTERNOON SESSION consideration.
2 1:50 p.m. 2 Let's move on. Is the government ready with the next
(Jury not present) evidence?
3 THE COURT: First, the Court distributed to the 3 MS. ZORNBERG: Yes, your Honor.
parties a copy of a first draft of jury instructions. Did the THE COURT: Bring in the jury. Apparently we are
4 government receive it? 4 still missing one juror.
5 MR. LANPHER: Yes, your Honor. 5 Any other matters that the parties may wish to take up
6 THE COURT: Defense? 6 in the absence of the jury?
7 MR. GARDNER: Yes, your Honor. 7 MS. ZORNBERG: Your Honor, just one matter. This is
8 THE COURT: Next, we left open one issue from this 8 very noncontroversial. When we were leaving the courtroom
9 morning concerning the government-proposed introduction of Mr. 9 today, we noticed that members of Mr. Olivieri's family were
10 Olivieri's expense account in order to confirm the testimony of 10 riding down in the elevator with certain members of the jury.
11 Mr. Rizzuto about the meeting between Mr. Rizzuto and Mr. 11 We certainly have no reason to believe they were talking about
12 Olivieri at the Loew's hotel in Florida, Miami. The Court 12 the case. But just as a matter of appearance, we would request
13 indicated that it would look at the text of Mr. Rizzuto's 13 that for the remainder of the trial, family members allow the
14 testimony on that issue and Mr. Gardner's cross-examination. 14 jury to depart prior to using the same elevator banks.
15 My reading of the cross-examination, at least as to 15 THE COURT: All right.
16 that testimony, is that Mr. Gardner did not raise any questions 16 MR. GARDNER: I didn't notice it, Judge, but I have no
17 about the occurrence itself or any suggestion that questioned 17 objection to talking to the family about that.
18 the credibility of Mr. Rizzuto, at least as to that incident. 18 THE COURT: Mr. Gardner, if you would caution members
19 So essentially to that extent there is no proper basis for the 19 of the family about the importance of maintaining distance from
20 government to bring in other evidence that addresses that 20 the jury.
21 particular event. 21 MR. GARDNER: Yes, your Honor.
22 I recognize that the government's theories is much 22 THE COURT: Were the parties able to reach the
23 larger, but I am not persuaded that bringing in one document as 23 stipulations on the issues we left open this morning?
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Page 864 Page 866
MR. LANPHER: Yes, your Honor. Let's put up Government Exhibit 604, which is the full
2 THE COURT: At what point did you wish to introduce 2 patch of bank records obtained from The Bank of New York for
these stipulations? the escrow account of Michele Bonsignore. Let's put up the
3 MR. LANPHER: First we have one exhibit that we are 3 record Bates stamped 607. This is the deposit slip. It says
going to introduce to the jury, and then we are going to offer "Murray 730,000."
4 the stipulation and Mr. Olivieri's declaration that we spoke 4 Let's go to the next page, 608. There is the check
5 about inside. 5 from James Murray for 730,000.
6 MS. ZORNBERG: Your Honor, while we are waiting for 6 MR. GARDNER: Your Honor, I do object to this process.
7 the jury, this is very minor housekeeping. It probably doesn't 7 MS. ZORNBERG: Your Honor, I'm just flipping through.
8 have to be done in front of the jury. There were a few 8 The rest of the exhibits have not been seen. I'll just put
9 documents that were read or shown to the jury yesterday as part 9 them up.
10 of stipulations. I don't believe, in going over and checking 10 THE COURT: What is the purpose of all this?
11 the transcript, that the Court formally said that they were 11 MS. ZORNBERG: Your Honor, the purpose is just to show
12 received in evidence: Government Exhibit 601, which is a 12 the movement of the money in and out of Ms. Bonsignore's
13 certificate of incorporation; Government Exhibit 807, which was 13 account as relates to the two Yonkers properties. It will take
14 the Mack stipulation read to the jury; Government Exhibit 604, 14 about 5, 10 minutes tops.
15 which are the bank records that came in pursuant to 15 THE COURT: Is there any dispute that the money flowed
16 stipulation. We would just ask, so that the record is clear, 16 through the account?
17 if those items have been received into evidence. 17 MR. GARDNER: Not at all, your Honor.
18 THE COURT: At the end of the trial I will direct the 18 MS. ZORNBERG: Your Honor, we do believe that there is
19 parties and the Court's clerk to get together and go over the 19 a relevant purpose and that it is not time-consuming.
20 entire list of exhibits that we have to make sure that it 20 THE COURT: See if you can move it quickly.
21 coincides with that which you agree have been entered into the 21 MS. ZORNBERG: Let's turn to page 610 of the bank
22 record. 22 records. These are the checks for January 20, 2005. The date
23 (Continued on next page) 23 of the closing.
25 (212) 805-0300 25 (212) 805-0300
Page 865 Page 867
(Jury present) Page 611, this is the check on the account, January
2 THE COURT: Again, regrettably, the lateness of at 2 20, 2005, to New Age Title.
least one juror has delayed us at least 15 minutes beyond the Page 612, this is a check for $133,000 and change,
3 time that we had indicated we would start. We will see how we 3 same date of the closing on the Windemere property, for Carmine
may be able to make up the time. If we are not through by 5 J. Tota.
4 o'clock today, we will stay until 5:15. 4 MR. GARDNER: Your Honor, I'm sorry. There is no
5 Ms. Zornberg. 5 objection to the money moved in and out, but I would object to
6 MS. ZORNBERG: Your Honor, at this time the government 6 counsel's commentary. And I don't know where we are going, so
7 wishes to publish Government Exhibit 604, which are certain 7 I don't want to preface it. If the documents are in evidence,
8 bank documents that were admitted pursuant to stipulation from 8 the jury can look at them.
9 the escrow account of Michele Bonsignore. 9 We don't have a dispute. Obviously the money went
10 Just to orient the jury, Ms. Geier could you please 10 into Ms. Bonsignore's account and came out. I don't know what
11 put up Government Exhibit 803, which is the stipulation about 11 counsel may say as to further ones. I don't think there is a
12 the Yonkers properties. Could you please enlarge paragraph 2. 12 witness on the stand, and I don't think it is appropriate for
13 Paragraph 2 is the paragraph of the stipulation that states 13 counsel to comment on the documents.
14 that "On or about January 20, 2005, the residential property 14 MS. ZORNBERG: Your Honor, the government can read
15 located at 87 Windemere Drive in Yonkers, New York, was sold by 15 from documents in evidence. This is the short exercise that we
16 the Tota family to Seavrus Real Estate Holdings for $330,000, 16 actually believe will make the next witness much more
17 and at that time property was then resold by Seavrus Real 17 efficient, the defense witness called. Five more minutes to
18 Estate on December 16, 2005, to Ralph Tarone, Jr. for 18 put the documents up. I will avoid any commentary beyond
19 $550,000." 19 reading from the documents.
20 Can we enlarge paragraph 2 for a moment just to set 20 MR. GARDNER: Thank you.
21 the date reference that Seavrus bought the house January 20, 21 THE COURT: OK.
22 2005, resold it December 16th. 22 MS. ZORNBERG: Page 613, a check for 8,250, also
23 Now, Ms. Geier, you can take that down. 23 January 20, 2005, to Empire Management Group. In the re line
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Page 868 Page 870
it says Seavrus Real Estate. parties agree that in 1999 and 2000 Joseph Olivieri's home
2 Page 617, another check on January 20, 2005, that says 2 address was 4 Ash Road, Briarcliff Manor, New York, New York --
"Title." excuse me -- 4 Ash Road, Briarcliff Manor, New York 10510;
3 Then the stipulation said that this property, the 3 Second, that in or about December, 2007, Joseph
Windemere property -- I'm sorry. Olivieri's primary employment and source of income was a
4 Let's put up page 614, a check in February 2005 for 4 position as executive director of the association of Wall,
5 7,540, to DNO Construction for expenses for Windemere. 5 Ceiling and Carpentry Industries of New York.
6 Page 615, a check of $16,000 to DNO. 6 Your Honor, the government offers Government Exhibit
7 Page 616. 7 809.
8 Now page 656. 8 THE COURT: That is admitted as stipulated.
9 Page 666. That's a December 15, 2005, check for 87 9 (Government's Exhibit 809 received in evidence)
10 Windemere. Let's take that down. 10 MR. LANPHER: Now, your Honor, we offer Government
11 Paragraph 3 of the stipulation, Government Exhibit 11 Exhibit 605, which is the declaration of Joseph Olivieri we
12 803, concerning the Montclair property, 37 Montclair Road, 12 have already addressed.
13 states that on or about February 18, 2005, that property was 13 THE COURT: All right. Admitted, objections noted.
14 sold by the estate of Marie Emmett to Seavrus Real Estate 14 MR. GARDNER: Thank you, Judge.
15 Holdings for $390,000, and on or about August 10th the property15 (Government's Exhibit 605 received in evidence)
16 was resold by Seavrus to Michael Woods and Tara Woods. 16 MR. LANPHER: Ms. Geier, could you put up Government
17 Let's very quickly put up page 618 of this exhibit, of 17 Exhibit 605 and zoom in.
18 Government Exhibit 604. February 18th, the date the property 18 Ladies and gentlemen, I'll read this to you. This is
19 was purchased, Tip Title, $100. 19 a declaration of Joseph Olivieri. It states:
20 Page 619, $2,748, on the same date, February 18, 05, 20 "1. I am the president of Seavrus Real Estate
21 to New Age Title, for Seavrus Montclair. 21 Holdings.
22 Page 620, a check dated February 18, 2005, for 22 "2. I submit this declaration under penalty of
23 $352,000 and change for Seavrus. 23 perjury.
25 (212) 805-0300 25 (212) 805-0300
Page 869 Page 871
Page 621, a check for $12,000 for Seavrus slash "3. I received through my attorney on or about July
2 renovations. 2 22, 2009, a grand jury subpoena that requested documents
Page 622, a check for 4300 and change for Seavrus relating to Seavrus Real Estate Holdings and all documents
3 Montclair renovations. 3 relating to real estate transactions that it was involved with.
Page 623, a check for $600 for Windemere slash "4. The corporate books and any other records
4 Montclair. 4 relating to real estate transactions are not in my possession.
5 Page 624, a check for $1200 in March of '05, closing 5 "5. That pursuant to my attorney's instructions, I
6 Windemere and Montclair, a check to Michele Bonsignore. 6 conducted a diligent search, which consisted of searching my
7 Page 625, a check for $890 pertaining to Seavrus. 7 home office, my car, and any other place that I may have placed
8 Page 627, a check for a newspaper ad, Montclair open 8 the documents, including my home.
9 house. 9 "6. That I did search through all of my old books and
10 Let's skip head. Let's turn to the date of August 10, 10 records and found no documents relating to real estate
11 2005, which is stipulated the date the property was resold. 11 transactions relating to Seavrus Real Estate Holdings.
12 Let's put up page 641 of this exhibit. This is 10 percent 12 "7. That this declaration serves to advise in writing
13 house down payment. 13 that I do not have any records relating to business dealings of
14 Page 645, a check dated August 10, 2005, the date of 14 Seavrus Real Estate Holdings and that I have no records in
15 the closing, to Seavrus Real Estate Holdings. 15 general relating to Seavrus Real Estate Holdings."
16 And page 650, the last one, another check on August 16 It is dated August 18, 2009.
17 10, 2005, for $10,000, Seavrus Montclair costs. 17 Your Honor, at this time, subject to the availability
18 Your Honor, at this time Mr. Lanpher is prepared to 18 of the one additional witness we have already addressed with
19 read to the jury certain stipulations that have been entered by 19 the Court, that concludes the government's case.
20 the parties. 20 THE COURT: Thank you.
21 MR. LANPHER: Your Honor, first, I'd like to offer and 21 Mr. Gardner.
22 read in Government Exhibit 809, a stipulation. 22 MR. GARDNER: Yes, your Honor. Other than the Rule 29
23 Ladies and gentlemen, the stipulation states that the 23 application which we discussed at side bar, which we do make
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Page 872 Page 874
1 0aqroli4 1 0aqroli4 Bonsignore - direct
again, at this time the defendant would call Michele Bonsignore A. Yes.
2 to the stand. 2 Q. When did that occur?
MICHELE BONSIGNORE, A. Two weeks ago. Approximately two weeks ago.
3 called as a witness by the defendant, 3 Q. Are you familiar with the indictment in this case?
having been duly sworn, testified as follows: A. Yes, I am.
4 THE COURT: Please be seated. Speak in the microphone 4 Q. Did you represent Joe regarding the indictment?
5 as closely as possible. State your name and spell it for the 5 A. Yes, I did. I was his attorney for the arraignment.
6 record. 6 Q. Did he leave or become terminated from the association in
7 THE WITNESS: My name is Michele Bonsignore, 7 any way after that indictment?
8 B-O-N-S-I-G-N-O-R-E. 8 A. No.
9 THE COURT: Mr. Gardner. 9 Q. Until, as you just testified, a month ago or two weeks ago,
10 MR. GARDNER: Thank you, Judge. 10 right?
11 DIRECT EXAMINATION 11 A. I would say two weeks ago. Yes, it was two weeks ago.
12 BY MR. GARDNER: 12 Q. Do you know if he received a severance agreement from the
13 Q. Ms. Bonsignore, as you know, my name is Brian Gardner, and 13 association?
14 I represent Joseph Olivieri in this matter. Can you first tell 14 A. Yes, he did.
15 the jury what your profession is. 15 Q. Did you review that for him?
16 A. I'm an attorney. 16 A. Yes, I did.
17 Q. How long have you been an attorney? 17 Q. For what proceedings did you represent Joe in this matter?
18 A. Since 1998. 18 You saw the indictment?
19 Q. Have you represented Mr. Olivieri in that as being an 19 A. I did, I saw the indictment. I was going to defend him in
20 attorney? 20 the case until --
21 A. Yes. 21 Q. He switched counsel?
22 Q. Do you currently maintain an office? 22 A. Until counsel was switched, that is correct.
23 A. Yes. 23 Q. Are you aware that Joe Olivieri also had a role with the
25 (212) 805-0300 25 (212) 805-0300
Page 873 Page 875
1 0aqroli4 Bonsignore - direct 1 0aqroli4 Bonsignore - direct
Q. Where is that? district council funds?
2 A. 11-44 Jackson Avenue, Scarsdale, New York 10583. 2 A. Yes. Trustee.
Q. Is that a home office? Q. As a trustee?
3 A. Yes, it is. 3 A. Yes.
Q. Is that where you practice out of? Q. Was he a particular kind of trustee, like a management
4 A. Yes, I do. 4 trustee?
5 Q. Do you have children at home as well? 5 A. Yes.
6 A. I do. 6 MS. ZORNBERG: Objection to leading.
7 Q. How many? 7 THE COURT: Sustained.
8 A. Three. 8 Q. Are you aware that there are two types of trustees on the
9 Q. When did you first begin to represent Joe Olivieri? 9 funds?
10 A. About eight, nine years ago. Eight or nine years ago. 10 A. Yes.
11 Q. What type of relationship have you developed over the eight 11 MS. ZORNBERG: Objection. Leading.
12 or nine years? 12 THE COURT: Overruled.
13 A. I would say a strong relationship. I would call him a 13 Q. Which type of trustee was Mr. Olivieri?
14 friend. 14 A. Mr. Olivieri was a management trustee.
15 Q. Does he often consult with you as his counsel? 15 Q. What does that mean?
16 A. Yes. 16 A. What happens is in his capacity as executive director, what
17 Q. Are you familiar with his position with the Wall & Ceiling 17 he did is he sat on the management funds for the district
18 Association? 18 council. What that did was with respect to the moneys that
19 A. Yes. 19 were supposed to be paid in to various funds that the district
20 Q. What is your understanding of his position with that 20 council had, his job, along with the other trustees, was to
21 association? 21 basically make sure that those funds are being paid properly.
22 A. He was the executive director. 22 Well, I want to say it was to make sure. It's not like he has
23 Q. Has he stopped being the executive director? 23 authority. But --
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Page 876 Page 878
MS. ZORNBERG: Judge, objection to this witness's THE COURT: Sustained.
2 foundation. 2 Q. Are you familiar with the name Walter Mack?
THE COURT: Sustained. A. Yes.
3 MR. GARDNER: I'll move on, your Honor. 3 Q. At some time did you learn that Mr. Mack issued a process
Q. Did Joe Olivieri ever discuss with you his duties and regarding Jim Murray?
4 responsibilities as a director of the association? 4 A. Yes. He issued a subpoena.
5 A. Yes. 5 Q. How did you first learn of that?
6 Q. Did those duties and responsibilities include grievances 6 A. I believe I learned about it from Mr. Olivieri.
7 and arbitrations? 7 Q. Can you recall that conversation?
8 A. Yes. 8 A. I can't exactly recall the conversation, but it was -- it
9 Q. Are you familiar with a company that Mr. Olivieri owned 9 could have been -- I don't want to say for certain that it was
10 that did excavating? 10 Mr. Olivieri. It could have been him or any other of my
11 A. Yes, I am. 11 clients. There was a big to-do in the industry when the
12 Q. What was the name of that company? 12 subpoena went out.
13 A. DNO Construction. 13 Q. Did at some point you talk to Mr. Olivieri regarding that
14 Q. Are you aware that DNO Construction did any work at a 14 subpoena?
15 Riverdale project? 15 A. I did.
16 A. Yes. 16 Q. What was that conversation?
17 Q. Did you review the documents, the contracts, for DNO as 17 MS. ZORNBERG: Objection.
18 regards that project? 18 THE COURT: Rephrase the question.
19 A. Yes, I did. 19 Q. Did you say anything to Mr. Olivieri regarding the
20 Q. Did you ever visit that project? 20 subpoena?
21 A. Yes, I did. 21 A. I did.
22 Q. Do you know an individual by the name of Jim Murray? 22 Q. What did you say?
23 A. Yes, I do. 23 A. "How did it get that far?"
25 (212) 805-0300 25 (212) 805-0300
Page 877 Page 879
Q. Do you know an individual by the name of Rob Wagner? Q. What did you mean by that?
2 A. Yes, I do. 2 A. My perception was to get a subpoena from Mr. Mack meant
Q. When you visited that site, did you see either of those two that you were in a lot of trouble. So weren't there audits
3 individuals? 3 prior to, I assume a forensic audit that brought you to the
A. I saw Mr. Wagner. point where now you are getting a subpoena from Mr. Mack? It
4 Q. Are you aware of who DNO contracted with regarding that 4 doesn't just come out of nowhere. There is usually some sort
5 Riverdale site? 5 of process prior to.
6 MS. ZORNBERG: Objection to this witness's 6 Q. Did Mr. Olivieri indicate to you that you knew of prior
7 foundational knowledge. 7 audits leading up to the Mack subpoena?
8 THE COURT: Sustained. 8 MS. ZORNBERG: Objection.
9 Q. You reviewed the contracts on behalf of DNO regarding the 9 A. No.
10 Riverdale site? 10 THE COURT: Sustained.
11 A. Yes, I did. 11 MS. ZORNBERG: Your Honor, can we be heard briefly at
12 Q. One party was DNO, right? 12 side bar?
13 A. One party was DNO, yes. 13 THE COURT: What about?
14 Q. Do you know who DNO was negotiating with with regard to the 14 MS. ZORNBERG: Your Honor, about how the rules apply
15 work that they were doing on that site? 15 to certain of the questions that are being asked.
16 A. Yes. It was Mr. Wagner. 16 THE COURT: I will remind Mr. Gardner this is direct
17 Q. Are you aware if Jim Murray had any relationship to that 17 examination.
18 Riverdale site in terms of financing? 18 MR. GARDNER: Yes, your Honor. Some of these
19 A. No. 19 questions, your Honor, are background, and I'd ask for some
20 Q. You're not aware one way or the other? 20 minor amount of leeway in doing that.
21 A. No. 21 THE COURT: Minor leeway.
22 MS. ZORNBERG: Judge, objection to form. This is 22 MR. GARDNER: Thank you.
23 direct examination, not cross. 23 MS. ZORNBERG: May I have a moment to speak with Mr.
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Page 880 Page 882
Gardner? It might make things go more smoothly. Q. How did he become involved?
2 THE COURT: Yes. 2 A. He became involved because I had him as -- I think he was
(Counsel conferred.) the president. I think he was the president.
3 Q. After that conversation with Mr. Olivieri, did anything 3 Q. Had you been involved with clients previously in terms of
occur concerning Walter Mack's subpoena? Did you have a purchasing houses, fixing them up, and selling them?
4 meeting with Jim Murray? 4 A. Yes. It's called house flipping. Yes.
5 A. Yes. 5 Q. Had Mr. Olivieri been involved with you previously on that?
6 Q. Where did that meeting occur? 6 A. No, he hadn't.
7 A. My office. 7 Q. How did it come to pass that Joe Olivieri was now involved
8 Q. Do you know how Jim Murray got your information? 8 with Seavrus?
9 A. I have an idea. 9 A. I had had two clients who were flipping houses. One of the
10 Q. What is that idea? 10 clients was the person who provided the financing and the other
11 A. I'm assuming that Mr. Olivieri referred him to me. 11 client was the person that did all of the work, all of the
12 Q. What happened at that meeting? 12 refurbishing, anything that had to do with construction,
13 A. He came to my office and he had the subpoena with him. I 13 getting things for the interior, what-have-you.
14 looked at it. He said -- do you want me to tell you what he 14 The person who had been financing the venture had
15 said? 15 decided to relocate to Florida, and the person who was going to
16 Q. Sure. 16 be staying in New York asked me do I know anybody that would be
17 A. OK. He said, I'm fucked, I did all of it, they've got me 17 interested. I said possibly, and I approached Mr. Olivieri and
18 dead to rights. I said, well, you have a problem, and I would 18 asked him if he would be interested. They didn't know each
19 suggest we begin the process of making a deal. 19 other -- they weren't friendly, but they did know each other.
20 Q. Did he then retain you to handle his case? 20 Q. Did they know each other in passing from your office?
21 A. No, he did not. He called me two days later. 21 A. Correct.
22 Q. Indicating he was using somebody else? 22 Q. What is that other person's name?
23 A. He had found somebody. He told me that he found somebody 23 A. Frank Schiavone.
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Page 881 Page 883

that could get him off. Q. What is his job other than flipping houses?
2 Q. In your conversations leading up to that meeting with Jim 2 A. He is a sanitation worker in the city of Yonkers.
Murray, was it your understanding that On Par had had other Q. Did you then create the company for the purpose of flipping
3 audits prior to the Mack subpoena? 3 the houses?
A. I think he had two or three. A. Yes. Oh, absolutely.
4 Q. Was it your understanding that Joe Olivieri knew of those 4 Q. Who found the houses?
5 audits? 5 A. Actually, the houses were found by Mr. Schiavone's husband,
6 A. Yes. 6 Clara Longo, who was a real estate broker in the city of
7 MS. ZORNBERG: Objection. 7 Yonkers. I think she was the one that told Frankie about the
8 THE COURT: Sustained. 8 houses, and that's when he came and he said, I've got two
9 Q. When you met with Jim Murray, did you discuss Joe Olivieri 9 houses, we can get them at this amount, and I'm looking for
10 at all? 10 somebody to do this with.
11 A. No. 11 Q. Did you receive -- when I say "you," I mean you, Ms.
12 Q. Are you familiar with the name Seavrus? 12 Bonsignore. Did you receive funds at some point to utilize and
13 A. Yes. 13 buy the houses?
14 Q. As a corporate entity? 14 A. Yes, I did.
15 A. Yes. 15 Q. Who did you receive -- let me withdraw that. Did you put
16 Q. Did you create a corporation with that name? 16 that money into a Seavrus account or into an escrow account?
17 A. I created the corporation. I chose the name, yes. 17 A. No, it was put into my escrow account.
18 Q. For what purpose did you create that corporation? 18 Q. Do you recall the amount of money?
19 A. It was a corporation that was set up because there were two 19 A. 730,000.
20 houses that were purchased, going to be purchased. They were20 Q. Do you recall where it came from?
21 going to be refurbished and then sold. 21 A. It came from -- it was a Wachovia account and it belonged
22 Q. Was Joseph Olivieri involved in Seavrus at all? 22 to Tracy Murray. I want to say that it was a credit line, but
23 A. Yes. 23 I'm not positive.
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Page 884 Page 886
MR. GARDNER: I'm trying to find out a government THE COURT: Sustained.
2 exhibit number, your Honor. 2 Q. After having a conversation with that person, do you know
Your Honor, may I approach the witness with Government if a document was entered into?
3 Exhibit 604B? 3 A. Yes, two.
THE COURT: Yes. Q. Do you know who the money was to be repaid to?
4 Q. Do you recall if that is a check that you received for 4 A. Tracy Murray.
5 $730,000? 5 MR. GARDNER: Your Honor, may I the witness what has
6 A. This is it. 6 previously been put into evidence as Government Exhibit 602.
7 Q. Do you see it says the name James Murray on it? 7 May I approach?
8 A. Yes, I do. 8 THE COURT: Yes.
9 Q. Do you have any understanding why it says James Murray 9 Q. Is that the document you were referring to, as best as you
10 instead of Tracy Murray? 10 can recall?
11 A. No, I don't. 11 A. Yes, I believe so.
12 Q. But it's your understanding it came from a Tracy Murray 12 Q. Does that document indicate the money is to be paid back to
13 credit line? 13 Tracy Murray?
14 MS. ZORNBERG: Objection. 14 A. Yes. Yes, it does.
15 Q. Do you have an understanding of where that $730,000 was 15 Q. Was it your understanding that this money was provided as
16 funded from? 16 part of the investment in Seavrus in flipping the houses?
17 MS. ZORNBERG: Objection: Asked and answered. 17 A. It was for the joint venture, yes.
18 THE COURT: Sustained: Asked and answered. 18 Q. Was this money ever a personal loan to Joe Olivieri?
19 Q. Do you recall how you physically received that check? 19 A. No. No.
20 A. Yes. Mr. Olivieri, I believe, handed it to me. 20 Q. Indeed, that $730,000, was it returned?
21 Q. What did you do with the check when you received it? 21 A. Yes, it was, it was returned.
22 A. I deposited it into my escrow account. 22 Q. Who was it returned to?
23 Q. Those funds, after being deposited into your escrow 23 A. It was returned to Tracy Murray, yes. You're talking about
25 (212) 805-0300 25 (212) 805-0300
Page 885 Page 887
account, did they always remain in your escrow account? the initial amount?
2 A. Always. 2 Q. Right.
Q. Did Joseph Olivieri have access to those funds in any way? A. Yes, it was, it was returned to Tracy Murray. I know I
3 A. No. Nobody did. 3 wrote checks out. I don't have them, but I know I wrote them
Q. What were those funds then utilized for? out.
4 A. They were utilized to purchase the two houses. They were 4 Q. I'll show you some of those in a moment. The returning of
5 also utilized to pay for any of the work that was done. What 5 the money to Tracy Murray, was it one check for 730,000 or was
6 would happen is contractors would be paid and I would have to 6 it a series of checks?
7 write out a check to various supply houses, contractors. I 7 A. No, it was a series of checks. What would happen is I
8 think we even had an ad in the newspaper. Closing costs, 8 would confirm a transaction with her attorneys and I would
9 everything. Everything having to do with the transaction came 9 write the check and then deliver it to their office.
10 out of those funds in that account. 10 Q. When you were speaking with her attorneys, was it ever
11 Q. Did any payments having to do with the transactions, being 11 indicated to you that this money should be returned to Jim
12 buying the houses, preparing them, selling them, did any 12 Murray, not Tracy Murray?
13 payments that had to do with that come out of any other, 13 A. No.
14 separate accounts? 14 Q. It was always Tracy Murray?
15 A. No. 15 A. It was Tracy Murray, yes.
16 Q. Do you recall being asked to enter into a note or some sort 16 MR. GARDNER: May I approach the witness, your Honor,
17 of payment document regarding 730,000? 17 with Government Exhibits 604C and D in evidence?
18 A. Yes. 18 THE COURT: Yes.
19 Q. Who did you have that conversation with? 19 Q. Mr. Bonsignore, do you see that one of those checks says
20 A. I had it with an attorney by the last name of Tague. I 20 "Principal payment"?
21 think his first name is John. 21 A. Yes.
22 Q. What was indicated to you? 22 Q. How much is that for?
23 MS. ZORNBERG: Objection: Hearsay. 23 A. $390,000.
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Page 888 Page 890
1 0aqroli4 Bonsignore - direct 1 0aqdoli5 Bonsignore - direct
Q. Do you see the other one says "Interest"? Q. Did you have those records?
2 A. Yes. 2 A. No, I didn't. I told them that I didn't. I did -- I'm not
Q. How much is that for? sure if I spoke to Mr. Pollard or Ms. Zornberg, and I told them
3 A. $18,200. 3 that -- I believe I told them that everything went through, you
Q. The one that says "Interest," was that actually for know, as far as the financials, everything had gone through my
4 interest? 4 escrow account, and -- but I didn't have -- no, I did not have
5 A. Yes. It was for interest on the original amount of 5 the files.
6 $730,000. 6 Q. And those checks, that I provided you I think four copies
7 Q. Was the same done for the other property in terms of 7 of, those are all from your escrow account, right?
8 principal and interest? 8 A. Yes. These are all from my Bank of New York escrow
9 A. Yes, I believe it was. 9 account.
10 Q. I show you what's been marked as Government Exhibits 604E 10 Q. And if we have your full escrow account records for
11 and 604F. Are those those checks, the other checks, for 11 Seavrus, there would be quite a number of checks, right, going
12 principal and interest? 12 to the materials and the labor and that kind of thing?
13 A. Yes, they were. 13 A. There would be an endless number of checks, yes, a lot of
14 Q. Were there any profits from Seavrus? 14 checks.
15 A. Yes, there were. 15 Q. At some point did you become aware that Mr. Olivieri was
16 Q. How were the profits distributed? 16 being asked to give a deposition in a civil matter regarding
17 A. What happened was at the end of the second closing, and I'm17 the District Council?
18 not sure which house closed first -- it looks like it was 18 A. Yes, I did.
19 Montclair. Oh, Windemere, OK. At the end of the second 19 Q. Do you recall how you first became aware of that?
20 transaction, what we did was I had to put together an 20 A. Yes. He had submitted -- he submitted an affidavit with
21 accounting, for lack of a better phrase, an accounting of what 21 respect to the litigation that was going on with the Consent
22 check went to what, and then whatever proceeds were left were 22 Decree. After he submitted his affidavit, I know that there
23 split three ways. 23 was some other litigation and then he had to -- he and some
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1 0aqroli4 Bonsignore - direct 1 0aqdoli5 Bonsignore - direct
Q. Would you actually physically review invoices for material other people had to give depositions, and he told me about it.
2 and work and then submit a check from your escrow account? 2 Q. The affidavit that he submitted, do you know who prepared
A. I had to, of course. that affidavit?
3 Q. Did you receive any direction as to the profits that were 3 A. Yes, I do.
going to Tracy Murray, what to do with that money? Q. Who was that?
4 A. You know, yes. I was instructed to -- I think I cut a 4 A. The counsel that was handling the litigation for WCC, who
5 check to a lumber company. To a lumber company. 5 were the intervenors at that time, it would have been Holly
6 Q. Do you recall who that would have been the result of a 6 Weiss and Scott Gold.
7 conversation with? 7 Q. Of what firm?
8 A. Attorney Tague. 8 A. Umm--
9 Q. Did you ever speak with Tracy Murray herself? 9 Q. Schulte Roth?
10 A. No. 10 MS. ZORNBERG: Objection.
11 Q. Did you ever speak with Jim Murray himself regarding 11 THE COURT: Sustained.
12 Seavrus? 12 Q. Do you recall --
13 A. No. 13 A. Schulte Roth & Zabel.
14 Q. It was always through the attorneys? 14 Q. Were you involved in not Schulte Roth themselves, were you
15 A. It was always through me, and then -- like I said, if there 15 involved in proceedings or matters with the Court as to the
16 was a closing, then I would get a phonecall from Mr. Tague 16 scope of that deposition?
17 instructing me with where to bring their check and 17 A. Yes, I was.
18 what-have-you. But no, I never met him her. 18 Q. Can you explain to us what that involved?
19 Q. Did there come a time that the government asked you to 19 A. Well, what happened was there was -- it was unclear on what
20 obtain and provide them with records regarding the Seavrus 20 the scope of Mr. Olivieri's testimony had to be, and it was
21 transactions? 21 unclear to me because he wasn't a contractor, he was a liaison.
22 A. Yes, it did. 22 So I didn't understand why he was even involved in any of this
23 (Continued on next page) 23 to begin with. But in any case --
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Page 892 Page 894
1 0aqdoli5 Bonsignore - direct 1 0aqdoli5 Bonsignore - direct
MS. ZORNBERG: Objection, your Honor -- U.S. attorneys who were giving the deposition and the attorney
2 THE COURT: Sustained. 2 for Mr. Clarke, who was the plaintiff.
MS. ZORNBERG: -- to counsel's thought process. Q. Who was the attorney for the government?
3 THE COURT: Sustained. 3 A. Benjamin Torrance and Kristin Vassallo.
A. In any case, he -- Q. Did you hear Mr. Olivieri -- well, prior to the deposition,
4 THE COURT: Sustained. 4 did you discuss the scope of the deposition with Mr. Olivieri?
5 Q. OK. Did you -- were there submissions to the Court 5 A. Yes.
6 regarding the scope of the deposition? 6 Q. And you explained to him what the scope was?
7 A. Yes. 7 MS. ZORNBERG: Objection. Hearsay.
8 Q. Were some of those submissions by yourself? 8 THE COURT: Sustained.
9 A. Yes. 9 Q. Was it your understanding Mr. Olivieri understood the scope
10 Q. And were some by the government? 10 of the deposition?
11 A. Yes. 11 MS. ZORNBERG: Objection.
12 Q. Did Judge Haight issue an order regarding those 12 THE COURT: Sustained.
13 depositions? 13 Q. Did you remain present for the entire deposition?
14 A. Yes, he did. 14 A. Yes.
15 Q. Judge Haight is -- where does Judge Haight sit as a judge, 15 Q. Was it your opinion that at any time Mr. Olivieri --
16 or where did he sit? 16 MS. ZORNBERG: Objection.
17 A. Judge Haight -- well, he sat in this courthouse. He was 17 THE COURT: Sustained.
18 the judge who was hearing the litigation with respect to the I 18 Q. You're familiar with, as you just testified, the Seavrus,
19 think it was violation of the Consent Decree. 19 the Yonkers properties?
20 Q. Was that a civil proceeding or a criminal? 20 A. Yes.
21 A. Civil. 21 Q. And you're familiar with the Riverdale property?
22 Q. It was your understanding that what was before Judge Haight22 A. Yes.
23 at that time was -- 23 Q. During the deposition, was Mr. Olivieri asked certain
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Page 893 Page 895
MS. ZORNBERG: Objection. Leading. questions regarding the Riverdale property?
2 THE COURT: Sustained. 2 A. Yes, he was.
Q. What was your understanding of what was before Judge Haight Q. Did he answer those questions accurately?
3 at that time? 3 MS. ZORNBERG: Objection.
A. The issue before Judge Haight at that time was what was THE COURT: Sustained.
4 going to be the remedy for the violation of the Consent Decree. 4 Q. Do you have any information to lead you to believe that you
5 Q. Did Judge Haight issue a decision as to the scope of the 5 answered those questions --
6 deposition of Mr. Olivieri? 6 MS. ZORNBERG: Objection.
7 A. Yes, he did. 7 A. No.
8 Q. And what was that decision as to the scope of the 8 THE COURT: Sustained. I think you are crossing the
9 deposition? 9 line.
10 A. The scope -- 10 Q. Do you recall Mr. Torrance asking questions concerning
11 MS. ZORNBERG: Objection. 11 whether or not Joe Olivieri knew Lou Moscatiello?
13 A. The scope of the deposition was to cover any knowledge of 13 Q. Do you recall whether Mr. Torrance asked questions of Joe
14 organized crime within the carpentry -- within the District 14 Olivieri if he knew Jim Murray?
15 Council. 15 A. Yes.
16 Q. Did it have anything to do with job approvals? 16 Q. Do you recall during that deposition that certain of the
17 A. Well, yes, it did. 17 questioning involved certain time periods?
18 Q. Were you present at the deposition of Mr. Olivieri? 18 A. Yes.
19 A. Yes, I was. 19 MS. ZORNBERG: Objection.
20 Q. Did you -- in what capacity were you there? 20 THE COURT: Overruled.
21 A. I was his attorney. 21 MR. GARDNER: Your Honor, if I may just pull out my
22 Q. Were there other attorneys present as well? 22 copy of the deposition?
23 A. Yes. Holly Weiss and Scott Gold, along with -- well, the 23 (Pause)
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Page 896 Page 898
Your Honor, I would like to approach the witness and (At the sidebar)
2 show her page 188 of the deposition that is in evidence. 2 THE COURT: Mr. Gardner, this witness is not here to
(Handing) give her opinion about whether Mr. Olivieri answered truthfully
3 MR. GARDNER: Thank you, Judge. 3 or did not answer truthfully or whether the questions were
Q. I'm going to refer you on 188. Do you recall Mr. Olivieri framed properly or not framed properly. That is not our job
4 being asked, at line 15: "Well, as I understand it, the first 4 here.
5 time you met James Murray was right after he became a member;5 MR. GARDNER: Your Honor --
6 is that right?" 6 THE COURT: If you have any purpose other than that,
7 "Answer: Yes." 7 then proceed. If not, bring this to an end.
8 Do you see that? 8 MR. GARDNER: I will proceed but she was -- I just
9 A. Yes. 9 wanted the record to be clear. She was his counsel for this
10 Q. And then the next question at line 19 is: "And then in the 10 deposition.
11 next few years he would occasionally come to association 11 THE COURT: That does not give her the right to
12 events, like golf outings and Christmas parties and that kind 12 interpret the testimony of the witness or to interpret the
13 of stuff?" 13 questions of the questioner.
14 And you see the answer, "Yes." 14 MR. GARDNER: But she certainly -- and counsel
15 Do you see that? 15 objected to these questions and it is difficult to do this.
16 A. Yes. 16 But she was his attorney. As I represented beforehand, that
17 Q. Do you recall Mr. Olivieri being asked that question and 17 there is a good faith defense that she had advised him on what
18 answer -- and giving that answer? 18 the scope of the deposition is and what's material to this
19 MS. ZORNBERG: Objection. The record stands for 19 deposition.
20 itself. 20 MS. ZORNBERG: No.
21 THE COURT: Sustained. 21 MR. GARDNER: And that's the basis for a good faith --
22 Q. Do you recall Mr. Torrance using the term, "the next few 22 THE COURT: I have given a ruling that you are going
23 years?" 23 to be allowed to bring out the fact that she is his attorney
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Page 897 Page 899
A. Yes. and she advised him, but that does not give you license to put
2 MS. ZORNBERG: Objection. 2 on the record her opinion as to the credibility of the witness
THE COURT: Sustained. or to the appropriateness of the questions or the clearness of
3 Q. Did you have any, in your own head -- 3 the questions. That is not her job.
MS. ZORNBERG: Objection. We would request a sidebar MR. GARDNER: She is there and she is advising him as
4 on this. 4 to what a question is or what a question means or what the
5 Q. To you, is there any ambiguity of what time period -- 5 scope of the deposition is.
6 MS. ZORNBERG: Objection. 6 THE COURT: Then her answer speaks for itself.
7 THE COURT: Sustained. 7 MR. GARDNER: She has to have advised him, otherwise
8 Mr. Gardner, I am giving you a second warning. 8 how do you do it? I don't know if those questions were
9 MR. GARDNER: Your Honor, can we approach at the 9 sustained or not.
10 sidebar? 10 THE COURT: Whatever it is. The transcript is what
11 THE COURT: No. 11 is. All right?
12 MR. GARDNER: I can't ask this witness questions about 12 MR. GARDNER: OK.
13 what she heard? 13 (Continued on next page)
14 THE COURT: You can ask the witness questions about 14
15 substantive matters that are within the jury's province. 15
16 MR. GARDNER: As a fact witness, your Honor, she was 16
17 present -- 17
18 THE COURT: Let's not argue before the jury. If you 18
19 want to come to the sidebar, I will clarify my ruling. 19
21 21
22 22
23 23
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Page 900 Page 902
(In open court) the Seavrus transactions?
2 BY MR. GARDNER: 2 A. None.
Q. With regard to the Riverdale project that we were Q. Did you have a conversation with Joe Olivieri with the
3 discussing and DNO, is it your understanding that -- are you 3 subject of James Murray returning to the United States that you
familiar with the name On Par? discussed?
4 A. Yes. 4 A. Yes.
5 Q. Are you familiar that that was Jim Murray's company? 5 MS. ZORNBERG: We object to any further disclosure of
6 A. Yes. 6 any conversations on hearsay grounds.
7 Q. As far as your understanding with regard to the Riverdale 7 MR. GARDNER: I'm not asking any -- may I ask the
8 project and DNO's excavation, did On Par have anything to do 8 question and that may resolve the issue?
9 with that? 9 MS. ZORNBERG: Sure.
10 MS. ZORNBERG: Objection. Leading. 10 THE COURT: Ask the question.
11 THE COURT: Sustained. Sustained as to form. 11 BY MR. GARDNER:
12 Q. Did On Par have any function, business relationship to 12 Q. Can you explain to the jury how Mr. Olivieri appeared
13 those Riverdale sites? 13 during those conversations?
14 A. Not to my knowledge. 14 A. The same as always. It was a curiosity. It was gossip.
15 Q. To your knowledge, was DNO ever working on the same, site15 Q. Did you have a similar conversation with other people in
16 as On Par? 16 the industry?
17 A. No. 17 A. It was a rumor --
18 MS. ZORNBERG: Objection. Lack of foundation. 18 MS. ZORNBERG: Objection.
19 THE COURT: Sustained. Sustained. 19 THE COURT: Sustained.
20 Rephrase the question or lay a foundation. 20 Q. Do you know where Mr. Olivieri's mother lives?
21 Q. Are you familiar with the jobs that DNO performed? 21 A. In the Bronx.
22 A. Yes. 22 Q. Did you know what part of the Bronx?
23 Q. And you're familiar with that as counsel to Mr. Olivieri 23 A. Pelham Bay.
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Page 901 Page 903
and DNO? Q. Do you know if she lives near Wilkinson Avenue?
2 A. Yes. 2 A. I think she lives on Wilkinson Avenue.
Q. Did DNO ever work on the same job site as On Par? Q. Do you know how long she has lived there?
3 A. No, not that I know of. 3 A. Forever.
Q. You're familiar with, as you just said, Joe Olivieri's Q. Do you know how often Joe Olivieri goes to that
4 business transactions? 4 neighborhood to visit his mother?
5 A. Yes. 5 A. Every day.
6 Q. As far as you know, did Joe Olivieri ever do business with 6 MR. GARDNER: If I can just have a moment, your Honor?
7 Jim Murray himself? 7 (Pause)
8 A. No. 8 No further questions, your Honor. Thank you.
9 MS. ZORNBERG: Objection. 9 THE COURT: Ms. Zornberg.
10 THE COURT: Overruled. 10 MS. ZORNBERG: Thank you, Judge.
11 Q. As far as you know, did Joe Olivieri ever discuss -- 11 May I have just a moment to get situated?
12 MS. ZORNBERG: Objection. 12 (Pause)
13 Q. -- business with Jim Murray? 13 CROSS-EXAMINATION
14 MS. ZORNBERG: Objection. 14 BY MS. ZORNBERG:
15 THE COURT: Let him ask the question. 15 Q. Ms. Bonsignore, good afternoon.
16 Q. As far as you know, did Joe Olivieri ever discuss business 16 A. Good afternoon.
17 with Jim Murray? 17 Q. We've met before, right?
18 A. No. 18 A. Yes.
19 MS. ZORNBERG: Objection. 19 Q. So you were Mr. Olivieri's personal lawyer?
20 THE COURT: Sustained. 20 A. Yes.
21 Q. As regards Seavrus -- and I apologize, I don't think I 21 Q. And you've also been his friend for many years?
22 asked this, I'm not sure -- counsel will tell me -- as regards 22 A. Yes.
23 Seavrus, did On Par have any business dealings with regard to 23 Q. You had represented him for eight to nine years, I think
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Page 904 Page 906
1 0aqdoli5 Bonsignore - cross 1 0aqdoli5 Bonsignore - cross
you said, correct? Q. Did you also represent, like you had indicated on direct,
2 A. Yes, I have. Him, his family, yeah. 2 you also represented Mr. Olivieri in criminal matters, right?
Q. So you've also represented his family members? MR. GARDNER: Objection, your Honor.
3 A. Correct. 3 A. I didn't say that. I said I represented him --
Q. And have you been to family functions of the Olivieri THE COURT: Sustained.
4 family? 4 MR. GARDNER: Your Honor, could we have an instruction
5 A. No. 5 that there are no other criminal matters?
6 MR. GARDNER: Objection, your Honor. 6 THE COURT: All right. Sustained.
7 THE COURT: Sustained. 7 Q. Now, you also represented the Wall & Ceiling Association,
8 Q. You know Mr. Olivieri well enough to know where his mother 8 right?
9 lives, right? 9 A. I have.
10 A. Yes, I do. 10 Q. Since approximately 2004?
11 Q. You know Mr. Olivieri well enough to know how often he 11 A. For different situations. I am not their general counsel
12 visits his mother, correct? 12 or anything.
13 A. Well, no. It's not that I know him well enough. It's 13 Q. But since 2004, you have come in from time to time to
14 because he told me he was going to see his mother. That's how14 provide representation?
15 I know. 15 A. Correct.
16 Q. You have a close relationship with Mr. Olivieri, right? 16 Q. And --
17 MR. GARDNER: Objection, your Honor. 17 MR. GARDNER: Objection.
18 THE COURT: Overruled. 18 THE COURT: Overruled.
19 A. It depends on how you are defining "close." But in a 19 Q. Was Mr. Olivieri who brought you in as a lawyer for the
20 general sense, it could be said. 20 association?
21 Q. What matters have you represented him in as his personal 21 A. No. No, I wouldn't say -- I think you're being too broad
22 attorney? 22 when you characterize him as bringing me in. I met before the
23 MR. GARDNER: Objection, your Honor. 23 board and I met with their general counsel.
25 (212) 805-0300 25 (212) 805-0300
Page 905 Page 907
THE COURT: Overruled. Q. And who asked you to come before the board?
2 A. Everything. 2 A. Irwin Popkin.
Q. Tell us. What matters? Q. And wasn't it Mr. Olivieri who brought you to meet the
3 A. Everything. When his -- when DNO had a -- there was an 3 board and he recommended you to be retained?
accident situation on one of the jobs that DNO was on, it was a A. No, it wasn't. What happened was Mr. Olivieri had asked me
4 personal injury case, and I represented the company on that. 4 if I would be interested. And from there I got a phone call
5 I've represented him with respect to some elder planning for 5 from Mr. Popkin. We met at a restaurant. We had lunch. And
6 his parents with respect to their home and whatnot. 6 then I had to meet the board at one of their board meetings.
7 Everything. 7 And then I got a phone call, either yes or no. I wasn't the
8 Q. You've represented him with respect to the Yonkers 8 only one that was being looked at.
9 properties that you were asked about on direct? 9 Q. So, Ms. Bonsignore, just to be clear, if you are not
10 MR. GARDNER: Objection, your Honor. 10 disagreeing that it was Mr. Olivieri initially who reached out
11 THE COURT: Overruled. 11 to you to represent the Wall & Ceiling Association --
12 A. I represented the corporation. 12 A. I am disagreeing with that characterization, yes.
13 Q. Who came to you and asked you to set up a corporation? 13 Q. I thought you said a moment ago that Mr. Olivieri asked you
14 A. It was my idea to set up the corporation. 14 if you would be interested.
15 Q. Who was the president? 15 A. Yes.
16 A. I think it was Mr. Olivieri. 16 Q. Is that what started it?
17 Q. OK. You represented DNO, Mr. Olivieri's company? 17 A. Yes, it was.
18 A. Yes. 18 Q. OK. And are you currently on retainer with the Wall &
19 Q. Did you represent any other companies that Mr. Olivieri 19 Ceiling Association?
20 owned? 20 A. No, I am not.
21 A. I didn't because there wasn't anything going on with them. 21 Q. Were you up until the time that Mr. Olivieri left that job?
22 Q. Are you aware of other companies Mr. Olivieri owned? 22 A. No, I was not.
23 A. You know, yes. 23 Q. Isn't it a fact that you have been on retainer for some
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Page 908 Page 910
time for $3,000 a -- MR. GARDNER: Objection as to "any matter," your
2 A. I'm sorry. You are absolutely right. What I do -- what 2 Honor.
happens is -- I don't know if you would call a retainer. THE COURT: Sustained.
3 Q. You are not sure? 3 Q. Ms. Bonsignore, you said you've represented Mr. Olivieri
A. Yes, it is mechanics liens. about everything. That was the term you used, "everything."
4 Q. Ms. Bonsignore, if my questions can be answered with a yes 4 Where are your files relating to Mr. Olivieri?
5 or no, please do so. If they can't, please let me know. I 5 MR. GARDNER: Objection, your Honor.
6 will ask for further explanation. 6 THE COURT: Sustained.
7 MR. GARDNER: I object to that instruction, your 7 MS. ZORNBERG: Your Honor, this is the matter we took
8 Honor. The witness should be allowed to answer a question. 8 up earlier.
9 THE COURT: Sustained. 9 MR. GARDNER: It is not, your Honor --
10 Q. Now, you are an attorney since 1998, correct; is that what 10 THE COURT: Objection as to form. Just constrain --
11 you said? 11 MS. ZORNBERG: OK.
12 A. Yes. 12 Q. Do you currently have files regarding your representation
13 Q. And you've represented Mr. Olivieri for eight to nine 13 of Mr. Olivieri?
14 years, is that correct? 14 A. With respect to what?
15 A. Approximately. 15 Q. With respect to any matter in which you represented him.
16 Q. You would agree, wouldn't you, that being a lawyer usually 16 MR. GARDNER: Your Honor, I have an objection to that.
17 results in having lots of paper? 17 I don't think you heard but --
18 A. Sometimes, yes. 18 THE COURT: I will allow it as a foundation for the
19 Q. You keep files as a lawyer? 19 more specific questions.
20 A. I do sometimes, yes. 20 BY MS. ZORNBERG:
21 Q. Do you take notes as a lawyer? 21 Q. You may answer.
22 A. It depends on the situation. 22 A. With respect to what? Are you referring to the litigation
23 Q. But would you agree that oftentimes lawyers, and you 23 having to do with the Consent Decree? Then, yes. Are you
25 (212) 805-0300 25 (212) 805-0300
Page 909 Page 911
yourself, have taken notes either in meeting with clients, talking about Seavrus? No, as I've already told you twice. If
2 attending meetings, preparing correspondence or carrying out 2 you're talking about the Riverdale job, it consisted of him
the business of an attorney? coming over, me looking at the contract, and that was that. As
3 MR. GARDNER: Objection, your Honor. 3 I said earlier, sometimes there are notes, sometimes there
THE COURT: Overruled. aren't notes. Meeting with Mr. Olivieri doesn't require a
4 A. I'm sorry. You were asking me if I keep notes on every 4 formal appointment at my office --
5 single thing? No. 5 Q. Ms. Bonsignore, the question --
6 Q. No. That is not my question. 6 A. I'm answering the question. Let me finish.
7 In the ordinary course of doing your job as a lawyer, 7 MR. GARDNER: Let her finish the answer.
8 is it fair to say that you often take notes of matters 8 THE COURT: All right. Sustained.
9 involving your clients? 9 Q. Ms. Bonsignore, do you have files regarding your
10 A. It depends on what the matter is. Sometimes yes. 10 representation of DNO Construction currently?
11 Sometimes no. 11 A. Do I have current files? No, I do not have any current
12 Q. Prior to coming to court today, did you look for your notes 12 files.
13 and files relating to your representation of Mr. Olivieri? 13 Q. No. The question is, do you have any files that you
14 A. No, I did not. 14 currently maintain or possess, regardless of the date of them,
15 Q. Were you asked to do that? 15 regarding your representation of DNO?
16 A. Yes. You asked me twice. 16 MR. GARDNER: The same objection, your Honor.
17 Q. Did the defense counsel ask you to do that? 17 THE COURT: Overruled.
18 A. Yes, he did. 18 A. I couldn't tell you. I don't know. I haven't done
19 Q. Do you have any files regarding matters in which you have 19 anything for DNO very recently, so I wouldn't have anything on
20 represented Joseph Olivieri? 20 me in my immediate.
21 A. With respect to Seavrus, no, I do not. 21 Q. Do you have files containing any notes or documents
22 Q. With respect to any matter in which you have represented 22 regarding the civil RICO case and your representation of
23 him. 23 Mr. Olivieri?
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Page 912 Page 914
A. Yes. mortgage and the promissory notes, he told me that it came out
2 Q. Did defense counsel ask you to bring those to court today? 2 of Tracy Murray's account.
A. No, I don't believe so. Q. Now, you also stated on direct that dealings involving
3 Q. Let's talk now about Seavrus Real Estate. And let's put up 3 Seavrus were always through me. I mean, those were your words.
Government Exhibit 601, in evidence. This is a New York State "They were always through me."
4 Department of State Incorporation stating that Seavrus Real 4 A. Yes.
5 Estate Holdings was filed November 23, 2004 in Westchester 5 Q. Did you reach out to James Murray yourself for this check?
6 County. 6 A. Did I reach out to somebody for a check?
7 Ms. Bonsignore, does that sound like the correct date, 7 Q. Yes.
8 approximately? 8 A. No, I never said I reached out. I said that it was
9 A. Mm-hmm. Yes. 9 delivered to me from Joseph Olivieri. He came to me, gave me
10 Q. All right. Let's take that down. 10 the check at my office the night before I had moved into my
11 You indicated that Mr. Olivieri was the president of 11 hope office. Gave me the check. I went straight to the bank
12 Seavrus Real Estate, right? 12 and deposited it. I think I went straight to the bank.
13 A. Yes. I think so. 13 Q. Would you agree that as of January 2005, you didn't have a
14 Q. And that company was created for the exclusive purpose of 14 relationship with James Murray, correct?
15 handling the Yonkers properties, right? 15 A. A relationship?
16 A. Yes. 16 Q. Yes.
17 Q. I think you said on direct to your knowledge that was 17 A. I haven't had any relationship with James Murray ever in
18 Mr. Olivieri's first time engaging in a house flip, that you 18 any year. So, yes, in 2005, no, I had no relationship with
19 are aware of? 19 James Murray.
20 A. I don't know that I said that it was his first time, but -- 20 Q. And you are not the person who asked Mr. Murray to prepare
21 Q. The first one that you handled for him? 21 this check, correct?
22 A. It was the first house flip that I handled for 22 A. No, I'm not.
23 Mr. Olivieri, that's correct, yes. 23 Q. Now will the's put up Government Exhibit 604B. 604A, I'm
25 (212) 805-0300 25 (212) 805-0300
Page 913 Page 915

Q. Let's put up Government Exhibit 604B. And could you sorry.
2 enlarge the top portion, Ms. Geier. 2 This is a deposit slip. Let's just rotate that.
You may have this before you, as well, Ms. Bonsignore. Ms. Bonsignore, can you see that deposit slip?
3 This is the check that you were asked about on direct for 3 A. Yes.
$730,000. Q. Is that your handwriting in the deposit slip?
4 A. Yes. 4 A. It is, yes.
5 Q. Could you read the name that is on the check? 5 Q. Now, you mentioned a mortgage and a note. Let me show you
6 A. James Murray. That one? 6 Government Exhibit 603.
7 Q. Yes. 7 A. Sure.
8 A. James Murray. 8 Q. Here you go.
9 Q. And the date is January 10, 2005. 9 Ms. Bonsignore, when you referred to the mortgage that
10 Now, on direct examination you stated that you thought 10 you discussed with attorney John Tague, is that the mortgage
11 that this check was drawn on a credit line by Tracy Murray. 11 you are referring to?
12 Just to be clear, this is an official bank check, 12 A. Yes, it is. I think so, yeah.
13 correct? 13 MS. ZORNBERG: Your Honor, the government offers
14 A. Yes. 14 Exhibit 603 in evidence.
15 Q. That's not a personal check, is it? 15 MR. GARDNER: Your Honor, we object.
16 A. I'm well aware of what it is. Yes. I can read. 16 THE COURT: Overruled.
17 Q. I mean no disrespect, Ms. Bonsignore. 17 MR. GARDNER: The other document is in evidence, your
18 A. Well ... 18 Honor.
19 Q. Ms. Bonsignore, do you -- how would you know from looking 19 MS. ZORNBERG: We haven't offered it yet, your Honor.
20 at an official bank check what account it came from? 20 We did offer the stipulation that Ms. Bonsignore would testify
21 A. Because I'll tell you how I know. I know what account it 21 that she notarized Joseph Olivieri's signature on it, and
22 came from not because it said "Tracy Murray" on the check. I 22 that's in evidence. Now we are offering the document itself.
23 know because when counsel, or Tague, called me to do the 23 MR. GARDNER: I have no objection if they want to ask
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Page 916 Page 918
her if she notarized it notarized it, your Honor, but she Tracy Murray's name was included?
2 didn't possess this document, she didn't keep it, she didn't 2 A. I'm sorry?
maintain it. Any of the regular questions, she didn't ask Q. You don't have any personal knowledge as to why Tracy
3 that. 3 Murray's name was included in the promissory note as opposed to
Or you can ask those questions if you want to lay a Jim Murray?
4 foundation. 4 A. I was told that --
5 THE COURT: All right. Lay the foundation, if any. 5 Q. Without --
6 MS. ZORNBERG: Your Honor, this was the subject of the 6 MR. GARDNER: Can she answer the question, your Honor?
7 pretrial briefing and a pretrial ruling by the Court, just to 7 A. Well, the knowledge that I have is that -- the knowledge
8 remind your Honor, and the witness has already said this is the 8 that I have is that they wanted to make sure that Tracy's money
9 mortgage that she was talking about. 9 came back, because they gave me -- this was done two months
10 THE COURT: Lay the foundation. 10 after they gave me the check. So they wanted to make sure that
11 MS. ZORNBERG: OK. 11 somehow there was a way to have a hold on the property.
12 BY MS. ZORNBERG: 12 Q. Let me show you Government Exhibit 620.
13 Q. Ms. Bonsignore, Government Exhibit 603, that is the 13 Ms. Bonsignore, can you take a moment, please, to read
14 mortgage you were referring to? 14 Government Exhibit 620.
15 A. I think so. 15 (Pause)
16 Q. And do you see on the last page, do you see the -- a few 16 MR. GARDNER: Your Honor, I don't believe -- are you
17 places where there is a notary signature? 17 asking her to read it out loud?
18 A. Yes. 18 MS. ZORNBERG: No.
19 Q. And that's your notary signature? 19 MR. GARDNER: To herself?
20 A. Yes. 20 MS. ZORNBERG: Yes, to yourself.
21 MS. ZORNBERG: Your Honor, the government again offers 21 Q. Have you had a chance to look at it?
22 Exhibit 603. 22 A. Yes.
23 MR. GARDNER: The same objection, your Honor. No 23 Q. Is this correspondence that you received from Mr. Tague
25 (212) 805-0300 25 (212) 805-0300
Page 917 Page 919

foundation. about this promissory note and mortgage?
2 THE COURT: Admitted subject to -- I'm sorry. 2 MR. GARDNER: Objection, your Honor.
Admitted. The objection is noted. THE COURT: Overruled.
3 (Government's Exhibit 603 received in evidence) 3 A. I would say so.
MS. ZORNBERG: Let's put up Government Exhibit 603. MS. ZORNBERG: The government offers Exhibit 620.
4 And could you enlarge the very top portion of the first page. 4 MR. GARDNER: Objection, your Honor.
5 Let's read it: This mortgage, made the 7th day of 5 THE COURT: What is the purpose of this?
6 February in the year 2005 between Seavrus Realty and Joseph 6 MS. ZORNBERG: Your Honor, it is relevant to the
7 Olivieri, jointly and severally, with offices located at 4 Ash 7 communications --
8 Road, Briarcliffe Manor, New York 10510. And Tracy Murray, 8 MR. GARDNER: Objection, your Honor.
9 residing at 100 Wrexham Road, Bronxville, New York 10708. And 9 MS. ZORNBERG: Why don't we come to the side. Thank
10 it says it is a mortgage for $730,000. 10 you.
11 Q. And did you notarize Mr. Olivieri's signature on the 11 (Continued on next page)
12 document? 12
13 A. I did. 13
14 Q. And let's put up Government's Exhibit 602. I believe 14
15 defense counsel showed you this on direct, the promissory note. 15
16 A. Yes. 16
17 Q. Ms. Bonsignore, this promissory note was prepared by 17
18 Mr. Tague, correct? 18
19 A. I think so. 19
20 Q. You didn't sit down to draft this; this was sent to you by 20
21 Mr. Tague? 21
22 A. I believe so. 22
23 Q. You don't have any personal knowledge, do you, as to why 23
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Page 920 Page 922
(At the sidebar) Jim Murray. That is the purpose of it. That is not even
2 MS. ZORNBERG: Your Honor, Mr. Lanpher is bringing a 2 hearsay at that point.
copy of the letter. This is the letter that we had some MR. GARDNER: It is hearsay. She has testified to
3 discussion about before the Court where the only basis -- this 3 that. And this is the letter, by the way, that the Tagues are
is what Mr. Murray testified about, that letter. We didn't not here to testify, and the government initially said they
4 offer it but he testified that this was the letter he was 4 would call them. Because the Tagues have engaged in all kinds
5 involved in preparing to try to get a promissory note done. 5 of improprieties, and without them here -- they are currently
6 Mr. Gardner objected at that time because he said that 6 suspended or they were recently suspended from the practice of
7 he wouldn't trust that it was ever actually received by 7 law. They have engaged in under-the-table payments with Jim
8 Ms. Bonsignore. Ms. Bonsignore has now recognized it. 8 Murray which his wife conceded as recently as today.
9 There is no basis for why this should not be admitted. 9 To put in a letter that is supposed to be their
10 You have testimony from two witnesses about it. It is 10 business record without them being here or without anybody else
11 completely reliable. The significance of it to the case is 11 to authenticate it, particularly when you have indicia of
12 that the person copied on the letter is Jim Murray, not Tracy 12 criminal actions on their part, I can't even fathom how this
13 Murray. So it is obviously significant to the government's 13 can come in.
14 case. We submit that any effort by defense to keep this letter 14 MS. ZORNBERG: Judge, it has been authenticated now by
15 out now are completely undermined by the fact that people on 15 two witnesses, including the witness called by Mr. Gardner.
16 both sides of the transaction have identified it as the letter. 16 MR. GARDNER: She didn't authenticate the letter. She
17 MR. GARDNER: Your Honor, my position has always been 17 authenticated the transaction, that there was a transaction.
18 and the Court kept this letter out of evidence because if they 18 The note and the mortgage, she said yes. She did not
19 want to put in the letter as a business record of the Tagues, 19 authenticate this letter.
20 the Tagues have to testify. If she maintained this or created 20 THE COURT: Why don't you ask her whether she has any
21 this document, then fine, but she didn't do that. She doesn't 21 reason to believe this letter is not authentic.
22 have any records on this. 22 MS. ZORNBERG: OK.
23 And they want to where they couldn't put it in before 23 (Continued on next page)
25 (212) 805-0300 25 (212) 805-0300
Page 921 Page 923
somehow because the letter refers to a transaction that she is (In open court).
2 familiar with, the letter is verified or I don't know if I am 2 BY MS. ZORNBERG:
using the correct word but properly founded, it has to come in Q. Ms. Bonsignore, do you have any reasonable basis to believe
3 through the people who maintained and created it. She didn't. 3 that the letter in front of you that's marked as Government
THE COURT: Ms. Zornberg, what rule, what basis are Exhibit 620 is not an authentic letter that was sent by John
4 you seeking to introduce this evidence? 4 Tague to your office?
5 MS. ZORNBERG: We seek to introduce it on a few bases. 5 A. Do I have any basis to not believe that that is a letter
6 First, on the basis that there is no residual hearsay 6 that was sent?
7 exception. 7 Q. Do you have any reason to believe that that's not -- yeah,
8 THE COURT: That is subject to all kinds of rules, as 8 that that's not an authentic letter?
9 you know. 9 A. I don't have any reason to believe one way or the other.
10 MS. ZORNBERG: No. That is a residual hearsay 10 It is a letter.
11 exception, first of all, that gives the Court permission -- 11 MS. ZORNBERG: The government renews its offer of
12 THE COURT: It requires a certain amount of notice in 12 Government Exhibit 620.
13 advance. You have to lay the foundation. 13 MR. GARDNER: The same objection, your Honor.
14 MS. ZORNBERG: Yes, your Honor. The foundation was 14 THE COURT: Sustained.
15 laid. We raised this in pretrial briefing. We discussed this. 15 Q. Ms. Bonsignore, in the course of dealing with Mr. Tague
16 The Court's reaction at the time was not to say the letter 16 about getting a promissory note and a mortgage, did he send you
17 can't come in, there was no such ruling. The Court was asked 17 correspondence on one or more occasions?
18 Mr. Gardner to come forward with any good faith basis to 18 A. I don't know that he sent me correspondence. It was really
19 believe that it was fabricated. We haven't offered it up until 19 telephone calls. That was our correspondence, to be honest
20 this time because Mr. -- 20 with you. I'm sure he might have sent me some but his
21 MR. LANPHER: We also are not offering it for the 21 correspondence was by telephone.
22 truth of what is said. The reason to offer this is to show 22 Q. OK. Let's move on.
23 that a letter was sent from John Tague to her and that it cc'ed 23 On direct examination, you were asked about a job site
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Page 924 Page 926
or two job sites in Riverdale, New York, in which you reviewed work?
2 contracts for Mr. Olivieri. Do you recall being asked about 2 A. Correct.
that? Q. Let's look at page 615, which was the next page. We will
3 A. Yes. 3 look at one more example around the same timeframe. A check to
Q. You reviewed the contracts for DNO to do excavation work on DNO for $16,000, dated February 10, 2005.
4 those jobs, right? 4 Is that your signature there, as well?
5 A. Yes. 5 A. Yes.
6 Q. You didn't personally do work on those job sites, correct? 6 Q. Was this also in connection with the work DNO was doing on
7 A. No. 7 the Yonkers properties?
8 Q. You weren't retained as an attorney to any party other than 8 A. Yes.
9 DNO, right? 9 Q. Now, you don't know one way or another if On Par sent its
10 A. No. 10 carpenters to finish the renovations on those properties?
11 Q. You weren't making daily visits to those job sites? 11 A. The renovations were being done by Frankie Schiavone and
12 A. No. 12 his guys. That's what I saw.
13 Q. Did you go there more than once? 13 Q. Ms. Bonsignore, this is a yes or no question.
14 A. I would say two or three times. 14 Do you have any personal knowledge of whether On Par
15 Q. Did you have any interactions with Ingrid Donnelly? 15 sent its own carpenters to complete the work on the Windemere
16 A. Not that I recall. 16 and the Montclair properties?
17 Q. So you don't know one way or another whether Ingrid 17 MR. GARDNER: Objection, your Honor.
18 Donnelly was the person doing the bookkeeping on those job 18 THE COURT: Overruled.
19 sites? 19 A. I can't really say because I have knowledge of what went on
20 A. I don't know who Ingrid Donnelly is. 20 at the properties because I visited them and I saw the work
21 Q. You don't know if she is an On Par employees? 21 that was being done and I know who they were answering to, but
22 A. I -- 22 I can't say anything about On Par.
23 MR. GARDNER: Objection, your Honor. 23 Q. Now, Mr. Olivieri -- "Mr. Olivieri." Sorry.
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Page 925 Page 927

THE COURT: Sustained. Asked and answered. Ms. Bonsignore, you were asked some questions on
2 Q. You don't know whether Michael Bookle was On Par's chief 2 direct about your representation of Mr. Olivieri in 2007 at the
estimator? civil deposition that was taken in the civil RICO case,
3 A. No. 3 correct?
Q. You don't know whether On Par sent carpenters to the A. Yes.
4 Riverdale jobs? 4 Q. Did the Wall & Ceiling Association pay your attorney's fees
5 A. That On Par sent carpenters to Riverdale jobs? 5 for that?
6 Q. Yes. You wouldn't have personal knowledge of that, would 6 A. I believe so. I am not a thousand percent positive; I
7 you? 7 don't have an invoice in front of me, but I believe so.
8 A. No. I was doing the excavation issue, not anything with 8 Q. Prior to that deposition, had you read Judge Haight's
9 carpentry. 9 October 25th order?
10 Q. OK. And there are some checks -- let's put up government 10 A. I'm sure I did.
11 604, page 614. 11 Q. And you indicated on direct that there was some briefing
12 Ms. Bonsignore, I am just going to show you some of 12 back and forth about the scope of the deposition and you
13 the checks from your attorney escrow account. 13 participated in that briefing?
14 A. OK. 14 A. I did.
15 Q. OK. Here is one dated February 5, 2005, addressed to DNO15 Q. And your purpose in that briefing was to try to get Judge
16 Construction Corp., and it says "for expenses for Windemere." 16 Haight to limit the deposition, correct?
17 A. Yes. 17 A. Yes, it was.
18 Q. Is that your signature on the check? 18 Q. Judge Haight denied your letter request, correct?
19 A. Yes. 19 MR. GARDNER: Objection, your Honor.
20 Q. So DNO did work on the two Yonkers properties, including 20 THE COURT: Overruled.
21 the Windemere property? 21 A. I think he might have. I don't have a copy of the order.
22 A. Oh, yeah. 22 That would speak for itself.
23 Q. And you wrote out checks occasionally for DNO for that 23 Q. Ms. Bonsignore, I'm showing you Government Exhibit 12, for
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Page 928 Page 930
1 0aqdoli5 Bonsignore - cross 1 0aqroli6 Greco - direct
identification. Please don't read it aloud. I am showing it (Jury present)
2 to you for the limited purpose of seeing whether it refreshes 2 THE COURT: Mr. Gardner.
your recollection that Judge Haight denied your letter request. MR. GARDNER: Thank you, your Honor.
3 A. Yes. 3 THE COURT: Your next witness.
Q. Yes, it refreshes you that he denied that request? GEORGE GRECO,
4 A. It does. 4 called as a witness by the defendant,
5 MS. ZORNBERG: May I have just a moment, your Honor? 5 having been duly sworn, testified as follows:
6 (Pause) 6 DIRECT EXAMINATION
7 MS. ZORNBERG: No further questions, your Honor. 7 BY MS. ZORNBERG:
8 MR. GARDNER: Just briefly, your Honor. 8 Q. Good afternoon, Mr. Greco. My name is Brian Gardner and I
9 REDIRECT EXAMINATION 9 represent Mr. Olivieri. I have a few questions. Could you
10 BY MR. GARDNER: 10 tell us, do you serve in any manner with the district council
11 Q. As to Judge Haight denying orders, did Judge Haight also 11 benefit funds?
12 deny the government's application as to what they wanted to -- 12 A. Yes, I do.
13 the scope of the deposition of Mr. Olivieri? 13 Q. What position do you have?
14 A. Yes. Yes. 14 A. I am the management trustee representing the Manufacturers
15 Q. Did he issue some sort of compromise? 15 Woodworking Association of Greater New York Incorporated.
16 MS. ZORNBERG: Objection. 16 Q. How long have you been a management trustee with the funds?
17 A. I would say so. 17 A. Approximately 12 years.
18 THE COURT: Sustained. 18 Q. The woodworking, is that an association?
19 Q. Now, you were asked about records that you may have for the 19 A. Yes.
20 civil case in which Mr. Olivieri gave a deposition, do you 20 Q. That woodworking association, is that usually given a seat
21 recall that? 21 on the board of the funds?
22 A. Right. 22 A. Yes.
23 Q. Do you recall informing me as to what records that would 23 Q. How long have they had a seat on the funds?
25 (212) 805-0300 25 (212) 805-0300
Page 929 Page 931

1 0aqdoli5 Bonsignore - redirect 1 0aqroli6 Greco - direct
consist of? A. I believe the association was one of the original
2 A. Everything that was already public record -- the decisions, 2 associations when the benefit fund -- when the pension fund was
the letters that I had written, the government's response, and started back in, say, the late '50's.
3 that was it. 3 Q. Your association, can you categorize it in terms of size of
Q. Were there also some e-mails between yourself and contributions to the fund?
4 Mr. Torrance? 4 A. I'm going to say we represent approximately 3 to 4 percent
5 A. There were several e-mails between myself and Mr. Torrance,5 of the total contributions to the fund on an annual level.
6 yes. 6 Q. Yourself, are you involved with a company that does actual
7 Q. Other than that, there were no other records, right. 7 woodworking?
8 A. No. 8 A. Yes. The name of my company is Midhampton Woodworking
9 MR. GARDNER: Thank you, Judge. 9 Corporation.
10 No further questions. 10 Q. What type of business does that do?
11 MS. ZORNBERG: Nothing further. 11 A. We manufacture interior architectural woodwork, such as the
12 THE COURT: You may step down. 12 courtroom that we are in right now. This is kind of work that
13 THE WITNESS: Thank you. 13 we manufacture. We actually just did the family court across
14 (Witness excused) 14 the street recently.
15 THE COURT: We are going to take the afternoon break 15 Q. Is there any prohibition on you performing work as a
16 at this point. It is 3:35. We will come back in about ten 16 contractor for woodworking based on you being a trustee of the
17 minutes. 17 funds?
18 MR. GARDNER: Thank you, Judge. 18 A. No. It's usually the rule, but most of the people that do
19 (Recess) 19 serve own companies.
20 (Continued on next page) 20 Q. When you say it's a role --
21 21 A. A rule. Usually, for the most part, most people that are
22 22 serving have their own companies.
23 23 Q. Is there any prohibition on you while you're a funds
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Page 932 Page 934
1 0aqroli6 Greco - direct 1 0aqroli6 Greco - cross
trustee, management trustee, having a company that is a Q. My name is Mark Lanpher. I'm an Assistant United States
2 subcontractor or an overcontractor on a construction project? 2 Attorney. We have never met, correct?
A. No. A. No.
3 Q. Are you familiar with payment plans? 3 Q. I just have a couple of questions in follow-up for you.
A. Yes. A. Sure.
4 Q. Can you describe the frequency in which payment plans 4 Q. You said you're a management trustee at the benefit fund?
5 occur. 5 A. I am, yes.
6 A. I'm going to say in the last three years, there's about 6 Q. In that role you are a fiduciary, correct?
7 1800 signatory contractors right now in the last three years 7 A. Correct, yes.
8 that have maybe somewhere around 300 payment plans, is a good 8 Q. You had gotten training on what that means, is that
9 guesstimate for the most part. As a trustee and an owner of a 9 correct?
10 company, I have been on payment plans. I'm on one as we speak 10 A. I was not given any formal instructions. When one becomes
11 at this point in time. 11 a trustee, actually it's on-the-job training, I guess would be
12 Q. You say you are on a payment plan as we speak. You mean 12 a good way of putting it.
13 the company that does the woodworking is on a payment plan? 13 Q. You got literature about it, though?
14 A. Yes. 14 A. Yes.
15 Q. How does that work? Is there like a down payment with the 15 Q. You are aware that you have to disclose conflicts of
16 payment plan? 16 interest to the benefit funds?
17 A. The process is basically, in the New York City District 17 A. Yes.
18 Council of Carpenters and Joiners of America, they require that 18 Q. For example, when the funds were deciding on your payment
19 you pay benefits on a weekly level, which is probably the most 19 plan, you wouldn't have voted on that payment plan, correct?
20 aggressive throughout the United States. Most unions 20 MR. GARDNER: Objection, your Honor.
21 throughout the city, state, and country are on quarterly 21 THE COURT: Overruled.
22 payment levels. In New York City, as a contractor, you're not 22 A. Repeat the question, please.
23 getting paid for 45 to 90 days, so you're basically acting as a 23 Q. You said you have to disclose conflicts of interest,
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Page 933 Page 935
1 0aqroli6 Greco - direct 1 0aqroli6 Greco - cross
bank to allow these large construction managements firms. correct?
2 It's usually a cash flow issue. You're delinquent 2 A. Yes.
after a week. If you haven't paid benefits after a week, Q. For example, when the payment plan involving your company
3 you're considered delinquent. So if you are delinquent, you 3 came up for consideration --
contact the fund office. They will set you up with a payment A. Yes.
4 plan. 4 Q. -- you wouldn't be the one to approve that, correct?
5 It's not an interest-free loan. It's two points above 5 A. You're correct, I would not be the one. But the way that
6 prime. Sometimes, depending on the contractor, if there's been 6 works is that when a contractor feels that they are delinquent,
7 a bad history, they impose sometimes delinquency and assessment 7 they will contract the executive fund director. Right now that
8 charges on top of that. You're signing a confession of 8 person is a former Assistant U.S. Attorney, Stuart GraBois.
9 judgment and you're signing personally. So it's a lot in 9 Mr. GraBois will put that contractor into contact with the
10 protocol at that point. You have to pay whatever those terms 10 person in his office that sets these things up.
11 are and you have to be current on any new benefits that accrue 11 Once all the paperwork has been prepared with the
12 thereafter. 12 terms and agreements, then the executive fund director will
13 Q. Do payment plans include large dollars owed to the funds? 13 contact one management trustee and then one labor trustee.
14 A. Yes. We have somebody, not myself but a member of our 14 Once they approve that, then the contractor signs the documents
15 association, that right now is probably on a payment plan for 15 and the payment plan is put in effect.
16 close to a million dollars. So it's not uncommon. 16 At the trustees meeting you are only given a list of
17 MR. GARDNER: No further questions, your Honor. Thank 17 people that are on the payment plan. Unless you have been
18 you. 18 contacted for one of the people to approve it, you would not
19 THE COURT: Ms. Zornberg or Mr. Lanpher? 19 know that.
20 CROSS-EXAMINATION 20 Q. Right. I guess my question is, you wouldn't be one of the
21 BY MR. LANPHER: 21 people to approve your own payment plan, right?
22 Q. Good afternoon, Mr. Greco. 22 A. I don't think Mr. GraBois would call me to approve my own
23 A. Good afternoon. 23 payment plan.
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Page 936 Page 938
1 0aqroli6 Greco - cross 1 0aqroli6 Wagner - direct
Q. You would obviously have a conflict of interest, though, the development of the properties that were the Cambridge
2 right? 2 Avenue site.
A. I would say the answer is no, correct. Q. At some point was a corporation created for the purpose of
3 MR. LANPHER: Nothing further, your Honor. 3 developing that property?
THE COURT: You may step down. You are excused. A. Yes, it was.
4 (Witness excused) 4 Q. What was the name of that corporation, if you remember?
5 THE COURT: Mr. Gardner. 5 A. 35-36 Cambridge Avenue LLC.
6 MR. GARDNER: We call Rob Wagner, your Honor. 6 Q. Who owned that LLC?
7 ROBERT WAGNER, 7 A. That was owned by two other LLC's. One of them was Rivcam
8 called as a witness by the defendant, 8 LLC and the other I believe was Michael James LLC, I'm not
9 having been duly sworn, testified as follows: 9 sure.
10 THE COURT: Please be seated. Speak into the 10 Q. Did you have an ownership in any of those other LLC's?
11 microphone as close as possible. State your name and spell it 11 A. Yes, I did. I had ownership in Rivcam LLC.
12 for the record. 12 Q. What percent ownership?
13 THE WITNESS: My name is Robert W. Wagner. Last name 13 A. 50 percent.
14 is spelled W-A-G-N-E-R. 14 Q. Did you have an ownership in the other LLC?
15 THE COURT: Mr. Gardner. 15 A. I did not.
16 MR. GARDNER: Thank you, your Honor. 16 Q. Do you know who owned that?
17 DIRECT EXAMINATION 17 A. To the best of my knowledge, it was owned by Michael Bookle
18 BY MR. GARDNER: 18 and Jim Murray.
19 Q. Mr. Wagner, good afternoon. My name is Brian Gardner. I 19 Q. Did you ever engage in conversations with Mr. Bookle or Jim
20 represent Joseph Olivieri. I'll be asking some questions. Did 20 Murray regarding developing that property?
21 you at some point own property in Riverdale? 21 A. Yes, we did.
22 A. Yes. I was a partner in a limited liability company that 22 Q. Can you describe how that came about and the process?
23 owned property in Riverdale. 23 A. Yes. We were looking, my partner, before we met Mr. Bookle
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Page 937 Page 939

1 0aqroli6 Wagner - direct 1 0aqroli6 Wagner - direct
Q. Do you recall where that property was? and Mr. Murray, were looking to develop parcels into a larger
2 A. Yes. The street address was 35-36 Cambridge Avenue. 2 development. They were at the time single family or two-family
Q. When did you first become involved in owning that property? homes. We spoke to Mr. Murray and told him what our plans
3 A. It would have been, if I remember, like 2004. 3 were. From that point he became interested in developing the
Q. Who did you own the property with? properties, much along the lines that we suggested. We formed
4 A. There were three parcels that were cobbled together to form 4 a company 35-36 Cambridge LLC owned by Rivcam LLC to pursue
5 one property. A company I worked with in New Jersey owned the5 that development.
6 first property. Myself and another partner bought the second 6 Q. Why were there LLC's only for 35-36 Cambridge rather than
7 property. The third property was purchased from the gentleman 7 just individuals? What was the purpose?
8 who had the contract on the property, Michael Bookle. 8 A. The purpose was to create an ownership structure that made
9 Q. That property regarding Michael Bookle, was that a 9 it easier to distribute the presumed net profits at some point
10 different address or location? 10 in the future.
11 A. I believe that actually was the address, 35-36 Cambridge. 11 Q. Did you then engage in development of that site?
12 The other two parcels had addresses on Riverdale Avenue. They 12 A. Yes, we did.
13 backed up on each other. 13 Q. What was your role in that development?
14 Q. Did any of them have an Oxford address? 14 A. My role was to act as a project executive.
15 A. Yes, thank you. There was a second set of properties that 15 Q. Meaning overseeing -- can you describe what a project
16 was a few hundred yards away at 36-20 Oxford Avenue, also 16 executive did for that site?
17 comprised of three separate parcels that were then made into 17 A. Sure. I worked with the architect. I worked with the
18 one development lot. 18 attorneys who were working on the zoning issues. I dealt with
19 Q. At some point I guess after 2004, did you start having 19 the community board. I had responsibility for generally
20 conversations with anybody about developing the property? 20 putting together the project, but not day-to-day responsibility
21 A. Yes. When we approached Mr. Bookle about purchasing his 21 for every little thing that would happen on the site or happen
22 property, he said he would have to check with his partner. His 22 in the development itself.
23 partner was Jim Murray. We started talking to Mr. Murray about 23 Q. Did the development begin at some point?
25 (212) 805-0300 25 (212) 805-0300

Page 940 Page 942
A. Yes, it did. A. Mr. Murray had recommended him.
2 Q. Once that began, how often were you at the site? 2 Q. Was Joe Olivieri present when Mr. Murray recommended him?
A. Every day or virtually every day. A. No.
3 Q. When the development began -- you are a 50 percent 3 Q. Was Joe Olivieri present when you, Mr. Bookle, and Jim
shareholder or a 25 percent shareholder? Murray discussed who you would retain for the excavation?
4 A. I am a 50 percent shareholder in Rivcam. Rivcam I believe 4 A. No.
5 was less than a 50 percent shareholder in 35-36 Cambridge. 5 Q. Were you present during any conversations between Jim
6 Q. Did that structure change at any time during the 6 Murray and Joe Olivieri where Jim Murray's involvement with the
7 development of the site? 7 site was discussed?
8 A. Yes. After Mr. Murray's indictment I had some negotiations 8 A. After he was hired.
9 with Mr. Murray through his attorney. The ownership structure 9 Q. After he was hired. I'm going to show you what's been
10 changed so that Rivcam and MJ, I forget the name, MJ LLC, were 10 marked as Government Exhibit 110 and defendant's I think 5.
11 dissolved, and Bookle and I took 50 percent ownership each of 11 MR. GARDNER: May I approach, your Honor?
12 that site and the site on Oxford Avenue. 12 THE COURT: Yes.
13 Q. How was Oxford set up in terms of ownership? 13 MR. GARDNER: Thank you.
14 A. Oxford was set up pretty much the same way, where you had 14 Q. Would you flip to the back page. Is that your signature?
15 an owning LLC that itself was owned by two other LLC's. 15 A. Yes, it is.
16 Q. Was that owned by the same two LLC's? 16 Q. Why is it that you signed the document?
17 A. Rivcam was one of the owners, and I don't remember the name 17 A. I signed on behalf of 35-36 Cambridge LLC as a member.
18 of the other LLC that Bookle had and Mr. Murray had. 18 Q. Was that part of your job duties --
19 Q. Did Mr. Murray oversee the project management or the 19 A. Yes.
20 construction that was going on at the site itself? 20 Q. -- as the project, what do you call it, a project --
21 A. From a distance. He was clearly very interested and 21 A. A project executive.
22 involved in what was going on, but I was in the office every 22 Q. Executive?
23 day next to the site, he was not. 23 A. Yes.
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Page 941 Page 943

Q. Did there come a time when you, as part of the development, Q. With regard to the price that DNO gave for the project, was
2 were looking for an excavating company? 2 that an appropriate and fair price?
A. Yes. A. We believed so.
3 Q. Did you take bids regarding the excavation? Let's first 3 Q. Did DNO complete the work at that site?
talk about the Cambridge site. A. Yes, it did.
4 A. Yes. 4 Q. Have you ever heard of On Par Construction or Contracting?
5 Q. Approximately how many bids did you receive? 5 A. Yes, I have.
6 A. Six or seven. 6 Q. Was On Par Construction or Contracting performing work at
7 Q. Do you recall receiving a bid from DNO? 7 that site?
8 A. Yes. 8 A. No, it was not.
9 Q. Do you know that Joe Olivieri was involved with DNO? 9 Q. Did On Par Construction or Contracting perform work at the
10 A. Yes, I do. 10 Oxford site?
11 Q. After DNO submitted a bid, did you retain DNO? 11 A. Not to my knowledge.
12 A. Yes, we did. 12 Q. Was DNO, after being retained on the Cambridge site,
13 Q. Whose determination was it to retain DNO? 13 retained on the Oxford site?
14 A. It was a joint determination: Myself, Mr. Bookle, Mr. 14 A. Yes, they were.
15 Murray. 15 Q. Why did you retain them on that site?
16 Q. Did you ever speak with Joe Olivieri regarding that 16 A. It was convenient. We saw the quality of their work and
17 retainer, retention? 17 what the pricing was.
18 A. We spoke before he was given a contract to perform the 18 Q. Were you satisfied with their work on the Cambridge site?
19 work. 19 A. Yes, we were.
20 Q. Did you sign the contract with DNO? 20 Q. Did that impact your decision to hire them on the Oxford
21 A. I believe I did. 21 site?
22 Q. How did you meet or how did you get involved first with DNO22 A. Correct.
23 or Joe Olivieri? 23 Q. Did they finish both projects?
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Page 944 Page 946
1 0aqroli6 Wagner - direct 1 0aqroli6 Wagner - cross
A. Yes, they did. Q. Mr. Murray did, correct?
2 MR. GARDNER: No further questions, your Honor. Thank 2 A. I believe so.
you. Q. He was the one ultimately behind it, correct?
3 THE COURT: Mr. Lanpher? 3 A. That's correct.
MR. LANPHER: Thank you, Judge. Q. A number of On Par employees worked on this development
4 CROSS-EXAMINATION 4 project, correct?
5 BY MR. LANPHER: 5 A. They may have. If they were on the site working, they were
6 Q. Good afternoon, Mr. Wagner. 6 not On Par employees.
7 A. Good afternoon, sir. 7 Q. For example, Michael Bookle was On Par's chief estimator.
8 Q. My name is Mark Lanpher. We actually have met before, 8 A. You're right. I will rephrase that. Other than Michael
9 correct? 9 Bookle, who I knew was an estimator for On Par, I did not know
10 A. That's correct, sir. 10 that any of the other people working there were active On Par
11 Q. You came down to the United States Attorney's office and 11 employees.
12 spoke about your involvement in this site, is that correct? 12 Q. Some of On Par's in-house accountants worked on the
13 A. That's correct. 13 development, correct?
14 Q. I want to go through some of the things that you testified 14 A. One of the bookkeepers would be at our office a couple of
15 about on direct. First of all, who put up the money for the 15 days a week to do the bookings and then go back to On Par.
16 development of the Cambridge and Oxford sites? 16 Q. That was Ingrid Donnelly?
17 A. Mr. Murray. 17 A. That's correct.
18 Q. How much money did he put up? 18 Q. She would work at the project for a little while, a couple
19 A. Several million dollars for each site. 19 of days, and then go back to On Par, correct?
20 Q. How much money did you put up? 20 A. That's correct.
21 A. Nothing. 21 Q. You testified on direct about a time when you hired DNO,
22 Q. When you say you were a half owner in Rivcam, had you 22 correct?
23 invested any money to get that ownership stake? 23 A. Correct.
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Page 945 Page 947
1 0aqroli6 Wagner - cross 1 0aqroli6 Wagner - cross
A. Yes. Initially I had invested in Rivcam to purchase one of Q. It was recommended to you by Mr. Murray, right?
2 the properties which was under contract. When we formed the 2 A. That's correct.
partnership or the LLC with Mr. Murray, my money was reimbursed Q. He told you to take a bid in from DNO, right?
3 at the closing. 3 A. That's correct.
Q. It was Mr. Murray who was going to fund the actual Q. It was ultimately Mr. Murray who had the decision-making
4 development of the sites, correct? 4 authority to give DNO that job, right?
5 A. He was going to fund until such time as we could get a bank 5 MR. GARDNER: Objection, your Honor.
6 loan. 6 THE COURT: Overruled.
7 Q. He put in about $10 million in total before you got a bank 7 A. Mr. Murray, through our various contracts, had executory
8 loan? 8 authority over the project.
9 A. On the Cambridge site he would have put in money to 9 Q. Realistically, he was the one calling the shots, right?
10 purchase the property, about a million and a half dollars, and 10 A. It was his money, and we gave him tremendous latitude in
11 the next roughly million dollars of construction money. 11 helping us decide who would work on the site.
12 Q. Some of that money came from On Par, correct? 12 Q. And he told you to give the job to Joe Olivieri, correct?
13 A. I don't know. 13 A. He didn't tell us to give the job to Joe. When we took in
14 Q. Do you recall telling the government that at least one 14 all the bids and looked at the prices, we discussed it, and he
15 check had come from Murray and/or On Par? 15 agreed that Joe would be the best one to give it to, after we
16 A. Yes. 16 listened to other people.
17 Q. During the initial period when this development project was 17 Q. That decision had to go through Jim Murray, right?
18 going, you said you were overseeing the day-to-day operations? 18 A. That's correct.
19 A. There were several people. I was an executive, so I was 19 Q. Jim Murray and Joe Olivieri, you saw them meeting together,
20 there every day. I knew what was going on every day. 20 correct?
21 Q. But initially you didn't have check-signing authority for 21 A. Once or twice, three times.
22 this project, correct? 22 Q. Do you recall telling the government that they seemed
23 A. That's correct. 23 friendly?
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Page 948 Page 950
A. Yes, I did. A. No.
2 Q. You saw them on the job site? 2 Q. You understood that it would have been a problem for Jim
A. That's correct. Murray to be involved in this job site, which was nonunion,
3 Q. You saw them talking there? 3 right?
A. Yes, that's correct. A. My understanding was that he could be involved in an
4 Q. You saw them meeting there? 4 executory capacity but that his company could not be involved.
5 A. They walked onto the site together. Jim introduced me to 5 MR. LANPHER: One moment, your Honor.
6 Joe, I said a few words, I walked away. They kept talking, and 6 Q. Do you remember the first time that you were interviewed by
7 they walked away. 7 the government about the Cambridge job site?
8 Q. You weren't party to those discussions generally? 8 A. I guess the first time --
9 A. Not really. The only discussions that I was party to with 9 Q. You seems like you're having trouble remembering. Do you
10 myself and Mr. Murray and Mr. Olivieri were more of a greeting 10 remember Special Agent Brian Gibbs?
11 of acquaintances, banter. 11 A. I wasn't sure if that's what you meant, on-site or some
12 Q. Then you would see Mr. Murray and Mr. Olivieri at the job 12 point later. Mr. Gibbs and I believe a colleague of his on the
13 site talking between themselves, correct? 13 street.
14 A. That's correct. 14 Q. Special Agent Gibbs came to you and started acting at first
15 Q. You recall at some point there was a problem with the 15 like he was interested in buying a condo?
16 excavation on 35-36 Cambridge, correct? 16 A. Yes.
17 MR. GARDNER: Objection, your Honor. 17 Q. Is that correct?
18 THE COURT: Overruled. 18 A. That's correct.
19 Q. Let me rephrase. Do you recall an incident where the back 19 Q. Then he advised that he was actually a federal agent?
20 garden wall was about to collapse on 35-36 Cambridge? 20 A. That's correct.
21 A. I know what you are referring to. If I may describe it 21 Q. He started asking questions about the job site, correct?
22 more accurately. Because of the proximity of the houses at the 22 A. That's correct.
23 rear of the site and the geological composition, sandy soil, we 23 Q. Do you recall telling him that Jim Murray had nothing to do
25 (212) 805-0300 25 (212) 805-0300
Page 949 Page 951
were very afraid that those houses might slide or might be with that job site?
2 damage to the front property owners. 2 A. It's possible I said that. I don't remember exactly what I
Q. So there was some discussion about what to do? said to him at the time.
3 A. That's correct. 3 Q. At the time you did know that that was something that was
Q. Ultimately, you stopped the excavation work for a time, to be kept hidden though, correct?
4 right? 4 MR. GARDNER: Objection, your Honor.
5 A. That's correct. 5 THE COURT: Overruled.
6 Q. Jim Murray was involved in all of these discussions, right? 6 A. My understanding, if I may elaborate a little bit, is that
7 A. Yes, he was. 7 Mr. Murray was a signatory to the collecting bargaining
8 Q. This was a big deal for the development, right? 8 agreements, which were union agreements. And that in order for
9 A. Yes, this was. 9 the job to be run as a nonunion job, which we thought was the
10 Q. Joe Olivieri was there to talk about this? 10 only economically viable way to do it, that On Par could not be
11 A. I don't remember. 11 involved, for sure, or any of its employees, and that Mr.
12 Q. Jim Murray was certainly involved? 12 Murray could not be directly involved, and that if he were,
13 A. Yes, he was. 13 then we would have the risk of needing to hire union workers as
14 Q. Ultimately, the excavation work was stopped for a time? 14 well.
15 A. For a week period of time. 15 Q. So you didn't want it advertised around that Jim Murray was
16 Q. You brought in another company to shore up the back wall? 16 the one signing checks for this project, correct?
17 A. That's correct. That was Bar Trench. 17 A. That's a correct description.
18 Q. Jim Murray paid for that, correct? 18 MR. LANPHER: May I have a moment, your Honor?
19 A. I believe so. 19 THE COURT: Yes.
20 Q. It wasn't charged back to DNO, correct? 20 Q. At some point the carpenters union began picketing that
21 A. I believe that's correct. 21 job, is that correct?
22 Q. The fact of Jim Murray's involvement in this project was 22 MR. GARDNER: Objection, your Honor.
23 something that you understood had to be kept hidden, correct? 23 A. That's correct.
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Page 952 Page 954
1 0aqroli6 Wagner - cross 1 0aqroli6 Wagner - redirect
THE COURT: Sustained. you recall telling the government that Jim Murray put
2 Q. I want to run through a couple of other employees or 2 $10.5 million of his own money into this project?
workers who were at the Cambridge job site. Do you recall an A. It's possible.
3 individual named Rory Brennan? 3 Q. Does that amount sound right?
A. Yes, I do. A. It very well could be that much money. It's too many years
4 Q. He had been a carpenter for On Par, correct? 4 to remember the exact amounts.
5 A. At the time of the project, I didn't know that, but I found 5 Q. Do you remember telling the government in the last month
6 that out subsequent. 6 that you had seen Jim Murray and Joseph Olivieri on that site
7 Q. He worked at the Riverdale, at the Cambridge job site? 7 together?
8 A. Yes, he did. 8 A. That's correct.
9 Q. Jimmy Campbell was On Par's purchaser, correct? 9 Q. I'm sorry. I wasn't actually done. Do you recall telling
10 A. That's correct. 10 the government in the last month that you had seen Mr. Olivieri
11 MR. LANPHER: Nothing further, your Honor. 11 and Mr. Murray on the Cambridge site together between five and
12 MR. GARDNER: If I may, your Honor. 12 ten times?
13 REDIRECT EXAMINATION 13 A. It's possible.
14 BY MR. GARDNER: 14 Q. In any case, you saw them there enough to recognize that
15 Q. Do you have any reason to believe that Joe Olivieri knew 15 they were friendly with each other?
16 the names that were mentioned to you by the government were 16 A. Yes, very friendly.
17 former or On Par employees at all? 17 MR. LANPHER: Nothing further.
18 A. No reason to believe that. 18 THE COURT: You may step down.
19 Q. Did you ever discuss with Joe Olivieri that Jim Murray was 19 (Witness excused)
20 financing the projects? 20 MR. GARDNER: Your Honor, may we approach?
21 A. No. 21 THE COURT: Yes.
22 Q. I think you said the number of times that you saw Jim 22 (Continued on next page)
23 Murray and Joe Olivieri was maybe two times? 23
25 (212) 805-0300 25 (212) 805-0300
Page 953 Page 955
1 0aqroli6 Wagner - redirect 1 0aqroli6
A. I don't remember exactly. Two or three times. (At the side bar)
2 Q. In terms of payment to DNO, those checks were not written 2 MR. GARDNER: I didn't want to the make a speech in
by Jim Murray, were they? front of the jury, your Honor. We don't intend to call any
3 A. At that time it would have been Ingrid Donnelly, who would 3 further witnesses. I know the government has the issue of Mr.
have cut the checks off of the accounting system. Marone. We of course reserve our right after that, if he is
4 Q. But I mean was it Mr. Bookle that signed the check? 4 going to testify, to potentially call any other rebuttal
5 A. It might have been. I honestly don't remember. Probably 5 witness. Other than that, we have no other witnesses.
6 Bookle signed it. 6 THE COURT: Have you been in touch with Mr. Marone to
7 Q. After you received a recommendation -- I don't want to use 7 know what time he may be available?
8 the word "recommendation." After you received an introduction 8 MS. ZORNBERG: No, we have not had the opportunity.
9 by Jim Murray to Joe Olivieri and DNO, were you involved at all 9 We will have to call his wife as soon as court is done here and
10 in vetting out whether DNO could do the work? 10 see if we can reach her to advise us as to when he is leaving
11 A. Yes. 11 the hospital.
12 Q. What did you do that involved that? 12 THE COURT: Where does he live?
13 A. We asked Mr. Olivieri for a recommendation for his company. 13 MS. ZORNBERG: I believe he lives in Westchester,
14 We called some of the people who were given as recommendations 14 because he was taken to Westchester County Medical.
15 and we asked them about the quality of Joe's work. 15 MR. GARDNER: Your Honor, this was an endoscopy.
16 Q. Only after that occurred did you enter into an agreement 16 Unless it was some sort of an emergency endoscopy, most
17 with DNO, correct? 17 endoscopies that I have been familiar with in my family are
18 A. That's correct. 18 usually scheduled sometime in advance. Unless it is some sort
19 MR. GARDNER: Thank you very much. No further 19 of emergency. It is not usually something that is akin to an
20 questions. 20 emergency procedure. I could understand if he was in an
21 RECROSS-EXAMINATION 21 accident or hospitalized.
22 BY MR. LANPHER: 22 MS. ZORNBERG: I'm married to a gastroenterologist.
23 Q. Mr. Wagner, just a couple of follow-ups. First of all, do 23 Judge, we were obviously disappointed that he wasn't here
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Page 956 Page 958
today. What he told us was that he suffered from colon cancer after the jury is dismissed, but we would request at least a
2 several years ago. He went to his doctor for some rectal 2 break of about 20 minutes to be able to look at it.
bleeding on Monday and was immediately told by the doctor to THE COURT: All right.
3 check himself in to the hospital because they thought there 3 (In open court)
might be a recurrence of the cancer. That's why it's a little THE COURT: The defense has indicated that it rests
4 out of the ordinary. 4 subject to what happens with the witness that we indicated
5 It was certainly not our choice for him not to be here 5 earlier today the government had called and was not able to be
6 today. We tried to see if he could get out of the hospital to 6 here. If that witness is available tomorrow first thing, we
7 be here today. He told us he was hooked up to an IV, couldn't 7 will conclude with that witness and then the defense. If it
8 do it. We will check in with him. We will notify the Court 8 chooses, they have another opportunity for any rebuttal that
9 within an hour of where things stand. When we know one way or 9 they may deem appropriate.
10 the other, we will advise the Court. 10 At this point it appears that there may be one
11 MR. GARDNER: There is one other issue. The 11 government witness left and, depending upon what happens with
12 government had questioned him on review of the indictment. I 12 that, potentially some rebuttal. That will conclude the
13 would just caution that we are talking about the perjury 13 evidentiary portion of the case and we will go directly into
14 question. I guess we can address that if he testifies. 14 the closing arguments. That will probably take through the
15 THE COURT: When we get there. The important thing is 15 morning, which means that we should be ready for the Court's
16 I need to know what time to tell the jury to come in tomorrow. 16 instructions to the jury sometime towards the afternoon. I
17 MR. LANPHER: We will either be prepared to put him on 17 can't tell you precisely what hour, but it appears that we
18 the stand at 9:00 or be prepared to close. 18 should be able to give you instructions sometime in the latter
19 MS. ZORNBERG: We are not seeking to delay the Court's19 part of tomorrow.
20 schedule. If he can be here at 9:00, fine. If not . . . 20 That said, we will adjourn for the day and return
21 THE COURT: In terms of closing arguments, how much 21 tomorrow at 9:30. Again I must stress the importance of being
22 time do the parties contemplate? 22 here, especially tomorrow, because we need to have the time to
23 MS. ZORNBERG: I think the government would request 23 conclude the remaining testimony if necessary, the argument,
25 (212) 805-0300 25 (212) 805-0300
Page 957 Page 959
two hours to be split between Mr. Lanpher's giving the main and the Court's instructions. That will enable you to begin
2 closing and my doing the rebuttal. I think we would like to 2 your deliberations.
have an hour and a half for the main summation and then 30 Until then, you are cautioned again not to discuss the
3 minutes for rebuttal. 3 case among yourselves or with anyone on the outside or have any
THE COURT: What is your proposal? contact of any kind with anyone or anything related to the
4 MR. GARDNER: I don't think I'll need that long, your 4 case. If any of these events occur, you are instructed to
5 Honor. Maybe 45 minutes for myself. It's hard to judge. I 5 inform the Court immediately.
6 tend to be somewhat quicker. 6 Thank you. Have a good evening. See you tomorrow
7 THE COURT: Two hours seems a little bit on the up 7 here at 9:30.
8 side, Ms. Zornberg. See if you can do it in an hour and a 8 (Jury not present)
9 half. 9 THE COURT: The parties need a little bit of time, you
10 MR. LANPHER: We can try. 10 say, to review the draft. How much time?
11 MS. ZORNBERG: We'll try. 11 MS. ZORNBERG: We are going to do it this evening,
12 THE COURT: I'm always prepared to give you a little 12 your Honor? We are going to meet again this evening?
13 leeway, but two hours is a long time. Say about an hour, hour 13 THE COURT: I'd like to at least get your overall
14 and a half for the government, an hour for you. 14 comments so we can get to work overnight and have another
15 MR. GARDNER: Total time for them is an hour and a 15 opportunity to meet with you first thing in the morning.
16 half? 16 MS. ZORNBERG: We would ask 5:30 or 5:45. There are a
17 THE COURT: Yes. I'll tell the jury to come in at 17 couple of defenses that have been raised in the course of the
18 9:30 because we need a little bit of time. After we finish 18 case. We want to have a chance to review the charge and pull
19 here today, I want to spend a few minutes on the injury 19 together a few cases in the event that we think there is any
20 instructions and get your comments. First thing in the morning 20 additional language that ought to be added. If the Court would
21 we will go over it again. 21 give us that latitude, we would appreciate it.
22 MS. ZORNBERG: Your Honor, we have not yet had an 22 THE COURT: I also must be conscious of the court
23 opportunity to review the jury instructions. We can do this 23 reporters' time. Why don't we meet at 5:15. If we need a few
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Page 960 Page 962
more minutes, we will adjust accordingly. there was no reason why he needed to be there, and therefore
2 Mr. Gardner? 2 your story doesn't make any sense. But that interpretation is
MR. GARDNER: I was going to ask for a little bit not all that clear the way that this reads.
3 shorter time. 5:15 is a good time to ask for. 3 In particular, if you look at line 12, after Mr.
Your Honor, I have one issue that we didn't address, Gardner is asking whether Mr. Moscatiello knew Mr. Rizzuto
4 and that is the handling of at least the perjury allegations 4 directly and could have contacted him if he wanted to, he asks,
5 that are in the indictment in terms of being able to publish 5 "And if you wanted to speak to him or if he wanted to speak to
6 that to the jury. At least during closing we had discussed 6 you, he knew how to find you and contact you, correct?
7 this. 7 "Of course."
8 THE COURT: The government has distributed a revised 8 The next line, "So my question is there is no reason
9 indictment that contains all the language here. 9 he had to go through Joseph Olivieri, right?
10 MR. LANPHER: Yes, your Honor. It is our intent to 10 "Correct."
11 distribute that redacted version of the indictment during the 11 The one interpretation of that is that Joe Olivieri
12 closing so that the jurors will see precisely what is in the 12 may or may not have been involved, he was not playing a
13 indictment, including the specific things that are charged. 13 critical role, he was not necessary to this transaction. He
14 MR. GARDNER: Your Honor, being that it's an 14 may have been there, but he was not a critical player, so to
15 indictment, there is verbiage in the first ten paragraphs 15 speak.
16 regarding the district council and the background of it and the 16 So there is that ambiguity in the testimony again, the
17 like that I would ask not be submitted to the jury in physical 17 question as to what extent is it necessary to bring in other
18 form. What I'm focusing on is where it says "count," 18 evidence that addresses the credibility of the witness if in
19 "perjury," and then it lists out the questions. The question, 19 fact that was not the clear purpose of this line of
20 and it has underlined, it always has from the beginning of the 20 questioning.
21 case, the underlying allegations of the false testimony. 21 It is on that basis that I was not persuaded that the
22 I think the first ten paragraphs are verbiage, would 22 documents would come in, at least not through that means.
23 not be appropriate, and is not supported by the case law should 23 MS. ZORNBERG: We appreciate your Honor looking at the
25 (212) 805-0300 25 (212) 805-0300
Page 961 Page 963
not be submitted to the jury. But that last portion so the issue again. Thank you.
2 jury can know what we are talking about in terms of false 2 THE COURT: Thank you. We'll see you at 5:15.
testimony alleged is OK. (Continued on next page)
3 MR. LANPHER: That's fine. We can redraft that 3
proposed redacted indictment to take out the background
4 speaking portion. We may have to keep some things just to take 4
5 care of the defined terms, but as a general matter we don't 5
6 have a problem with that. 6
7 THE COURT: Let me come back to something which I left 7
8 open, which was the issue of the expense account. I indicated 8
9 I would review the relevant testimony on that issue again. 9
10 Someone requested a reconsideration. 10
11 The reason I was having some difficulty with the 11
12 government's theory, Ms. Zornberg, is that in reading the 12
13 testimony of Mr. Rizzuto and the questioning by Mr. Gardner, 13
14 and I'm reading from page 196 of the transcript, my concern is 14
15 that the questioning by Mr. Gardner is somewhat ambiguous as to 15
16 exactly what it is that he was seeking by way of the testimony 16
17 and whether it is absolutely clear that the reason for his 17
18 questioning was to challenge the credibility of the witness or 18
19 whether he was, reading the text in another way, downplaying 19
20 the role that Mr. Olivieri played in this whole transaction and 20
21 his relationship with the witness. 21
22 The testimony could be read two ways. One is he 22
23 lying, this didn't happen at all, Mr. Olivieri wasn't there, 23
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Page 964 Page 966
1 0aqdoli7 Charge Conference 1 0aqdoli7 Charge Conference
(Time noted at 5:20 p.m., jury not present) needed in a perjury charge case, particularly when the
2 THE COURT: All right. Thank you. Be seated. 2 government is has focused quite a bit on consciousness of guilt
All right. I question whether the parties have had at and has attempted to put in a number of documents regarding
3 least a preliminarily sufficient opportunity to review the 3 consciousness of guilt and they are attempting to draw
draft, have any major substantive global comments at this inferences to get the consciousness of guilt. So the question
4 point? 4 is simply to explain to the jury that if there was a good faith
5 MS. ZORNBERG: Your Honor, there is nothing global. 5 belief in the answer, then it is not perjury. And the fact
6 We have a few substantive comments, and we have worked very 6 that it may be somehow, you know, included in just reading the
7 expeditiously to review them. 7 elements, I don't disagree that it is somewhat included in the
8 And there is one proposed insert for page 28, which 8 reading of the elements, but it needs to be explained to them
9 the government handed up to your Honor's clerk. There are a 9 that if there is an honest good faith belief on the defendant's
10 few other spots, if the Court wants to go page by page, a few 10 part that he was answering these questions correctly, then it
11 substantive areas and a few more clarification matters. 11 is not perjury. That's all.
12 THE COURT: OK. 12 THE COURT: Mr. Olivieri, I think the government is
13 Mr. Gardner. 13 correct in its observation that the instructions as they are
14 MR. GARDNER: Your Honor, my only large substantive 14 pick up the concept that if somebody is not saying what he's
15 issue is that I don't see a good faith portion of the charge 15 saying -- if he says what he says unintentionally, even if it
16 unless I missed it in quickly reading. Good faith -- and my 16 isn't correct, there is language in here that basically says
17 associate here is telling me the law because he actually did 17 that absence of intent because of mistake, error, anxiety and
18 the research for the initial proposal, but it involves not only 18 all of the other reasons would not justify a conviction for
19 an advice of counsel good faith but good faith as a contrast to 19 perjury. I am prepared to amplify that a little bit at the
20 knowingly doing something. So that would be our real main 20 margins to add the concept -- some element of good faith
21 objection, is that there is an absence of a good faith charge. 21 belief, but I am not persuaded that a separate charge of good
22 THE COURT: All right. It was not included, 22 faith, including any suggestion that the defendant was acting
23 Mr. Gardner, because at the time that we prepared these, you 23 on advice of counsel, is justified here. There is nothing in
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Page 965 Page 967
had not presented any evidence of any kind, good faith or not the record that came out through Ms. Bonsignore's testimony
2 good faith, and we had not had a discussion as to whether 2 that would allow for a reasonable inference on the part of a
either the record or anything else justified the charge. So I juror that the defendant acted -- said what he did because he
3 wanted to keep that issue open until we had a discussion. 3 was acting on advice of counsel.
MR. LANPHER: And, your Honor, it is our position that MR. GARDNER: Other than, your Honor -- and I
4 the defense has not presented any evidence that would justify a 4 appreciate whatever you do at the margins in terms of good
5 good faith charge. First of all, we think it is generally 5 faith, but other than as to materiality, Ms. Bonsignore did
6 superfluous in almost any case where the substantive elements 6 engage in the litigation as to the scope of the deposition and
7 already capture the idea that the defendant has to have done 7 then advised. The government may say incorrectly advised, but
8 this knowingly. It can't have been some mistake or because of 8 she did advise him on the scope of the deposition.
9 confusion or anything like that, which captures the idea of 9 So to the extent that he's answering questions based
10 good faith. 10 upon her advice as to the scope of the deposition, I think I
11 To the extent that Mr. Gardner wants some additional 11 can get up and say to the jury, I would like to, that he had
12 language regarding advice of counsel, there was no foundation 12 counsel, the same counsel who engaged in the litigation over
13 laid for that kind of instruction through Ms. Bonsignore's 13 the scope of the deposition. She advised him as to what the
14 testimony. 14 parameters would be. And to the extent he was answering the
15 I don't know how there really could be in a perjury 15 questions within that, I think he did, as to materiality, rely
16 case, but certainly there was no suggestion that Ms. Bonsignore16 on counsel.
17 advised him to answer in this way or told him that it would be 17 THE COURT: All right. Advice as to scope of a
18 proper for him to answer in this way and nor could she. So I 18 deposition is one thing. But the issue is whether within the
19 think there is simply no basis for the proposed good faith 19 scope of the deposition someone then specifically takes a
20 instruction, which, again, I think is really duplicative in any 20 particular question and answers it falsely, that's what's
21 case but here particularly confusing and unwarranted. 21 involved here. And for the jury to determine the scope of a
22 THE COURT: Mr. Gardner. 22 deposition does not give a question-by-question forecast of
23 MR. GARDNER: Your Honor, I think it is particularly 23 exactly what he is going to be asked, and it is impossible for
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Page 968 Page 970
that to happen. So scope of a deposition is more generalized. by trying to make that esoteric distinction that we have
2 MR. LANPHER: And, your Honor, we think it actually 2 alluded to many times before between the scope of the
goes farther than that. deposition and issues of materiality and questions that have
3 As the Court ruled in its pretrial motions decisions, 3 been raised here. I think it is unnecessary.
the scope of the deposition here is not the test for And to the extent that the defense brings in argument
4 materiality. And, indeed, one of the proposed substantive 4 about materiality that either are irrelevant or improper as a
5 additions that we have for the Court is to add an instruction 5 matter of law, the government can object, or they bring in
6 to that effect. There has been testimony and argument from 6 arguments that the government can respond to in its last
7 defense counsel regarding the significance of the scope of the 7 arguments. They can do that, too.
8 deposition, including Judge Haight's order. Indeed, 8 MR. LANPHER: And, your Honor, as a general matter,
9 Mr. Gardner just indicated that he plans to argue that to the 9 and in particular here, we prefer not to object during closing
10 jury in his closing. And so we have a proposed instruction to 10 arguments. I think the Court probably appreciates that.
11 add to make clear to the jury, and I can read it -- I have just 11 THE COURT: That is the preferred course but sometimes
12 handwritten it, but to say something to the effect of: You 12 it may be inevitable.
13 have heard testimony and argument that the court overseeing the 13 MR. LANPHER: It may be but this is something that I
14 civil RICO case issued orders regarding the scope of 14 think we can foresee. We can foresee it based on the
15 Mr. Olivieri's December 18, 2007 deposition. I instruct you 15 cross-examination of witnesses, based on the pretrial motions,
16 that even if a question was beyond the scope or beyond the 16 based on what Mr. Gardner had said here today. I think it is a
17 permitted scope of Mr. Olivieri's deposition, you may find it 17 legal question. If Mr. Gardner is going to argue that
18 material to the civil RICO case. 18 something outside the scope of Judge Haight's order is
19 And that follows directly from this Court's rulings on 19 necessarily immaterial, that is simply incorrect as a matter of
20 the pretrial motions, and we think it's an absolutely clear and 20 law.
21 correct statement of law and we think it is a necessary 21 We think that the charge will need to explain that.
22 instruction here to avoid confusion by the jury, particularly 22 Can the jury consider whether or not a question was within the
23 in light of the arguments defense counsel has indicated he 23 scope of that order in deciding materiality? Absolutely.
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Page 969 Page 971
intends to make. That's certainly proper.
2 THE COURT: All right. Mr. Gardner. 2 However, what we're worried about is the jury getting
MR. GARDNER: Your Honor, I vehemently object to that, confused into thinking that the materiality question in fact is
3 obviously. This has to do with whether or not the Court would 3 whether or not something was within the scope of Judge Haight's
issue -- the Court issued a decision as to whether or not it order. That is not the test. So that's why I think -- perhaps
4 would dismiss the perjury count as a matter of law. And the 4 I wasn't clear, but that is what we're cautioning for, and that
5 court said no, it is going to leave the issue for the jury. 5 is the kind of instruction that we will seek based on defense
6 That is an entirely separate matter than the Court instructing 6 counsel's proffer of what he is planning to argue.
7 the jury now that certain things are not material, certain 7 MR. GARDNER: I really suggest, let's see how the
8 things are material. That is for the jury to decide whether or 8 summations go. I really disagree with what my proffer was, and
9 not Mr. Olivieri intentionally lied as to any particular 9 I think I will walk on the side of --
10 subject and whether that subject was material to the civil 10 THE COURT: I'm sure that Mr. Gardner would not want
11 proceeding that it was in. 11 to invite an objection or produce the result of the Court
12 To do what counsel is asking you to do, and this is 12 having to give such an instruction after the fact. But I'm
13 why this is not a traditional charge in a perjury charge, the 13 leaving it out of the draft at this point, although, again, I
14 government is trying to somehow move the jury in a direction 14 do agree with the government. We've looked at this issue
15 away from the materiality question, and it is not appropriate. 15 before. The scope of the deposition is not necessarily
16 THE COURT: All right. I am not going to use the 16 coincidental with the scope of materiality. All right?
17 instructions to anticipate the parties' closing arguments or 17 Yes?
18 the content of their arguments. These are matters that you are 18 Now, let me ask Mr. Gardner whether he received a copy
19 free to argue to the jury. The element of materiality is what 19 of the insert that is the government's proposal?
20 it is, and the parties are free to argue to the jury what your 20 MR. GARDNER: I did, your Honor.
21 version or your interpretation of the evidence showed on the 21 THE COURT: All right. Do you have any substantive
22 question of materiality. 22 objection to it? It is supported by the Second Circuit case
23 I don't think that it is necessary to confuse the jury 23 that the government has indicated in Zweig.
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Page 972 Page 974
MR. GARDNER: Your Honor, I am at a disadvantage bracketed paragraph on page 17 about number of witnesses
2 because I did not have an office to go back to and review the 2 called.
case law. I think -- THE COURT: All right. Mr. Gardner, do you have a
3 THE COURT: Do you have a Blackberry? 3 view with regard to that?
MR. GARDNER: I do. And I could even bring it in MR. GARDNER: Yes, your Honor. I submit to you it
4 because I have the card, which is very convenient. 4 should be left in. It is a part of the standard charging.
5 THE COURT: We will put this one aside and give 5 THE COURT: This is very standard. I agree.
6 Mr. Gardner an opportunity to respond to it tomorrow. 6 MS. ZORNBERG: OK. The next change we have is page
7 MR. GARDNER: Thank you, Judge. 7 19.
8 I think there is one thing I would agree with, your 8 THE COURT: Mr. Gardner, do you have anything prior to
9 Honor. The government raised an issue of law enforcement 9 19?
10 techniques. 10 MR. GARDNER: I just wanted to look. I see a
11 THE COURT: Yes. 11 bracketed section on 18, which I think would now stay in now
12 MR. GARDNER: I don't think that is part of the -- 12 that Mr. Olivieri did not testify.
13 THE COURT: You will notice that there are a few 13 THE COURT: All right.
14 places in the draft that are in brackets. 14 MR. GARDNER: I just bring that to the Court's
15 MR. GARDNER: Yep. 15 attention.
16 THE COURT: The bracket means that it is subject to 16 MS. ZORNBERG: Page 19 is what I think the parties are
17 discussion and subject to whether or not the record supports 17 in agreement that there is not expected to be any argument at
18 that instruction. 18 closing on law enforcement investigative techniques so that
19 MS. ZORNBERG: Your Honor, perhaps we can go page by 19 bracketed language would come out.
20 page. 20 MR. GARDNER: Yes, your Honor. We agree with that.
21 THE COURT: Yes. What is the next thing, if you 21 Which? 19?
22 could? 22 THE COURT: 19, the bracketed portion in the --
23 MS. ZORNBERG: The government's first proposed 23 MR. GARDNER: Yes. I'm sorry, your Honor. Yes.
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Page 973 Page 975
addition is on page 9, in paragraph 2. MS. ZORNBERG: We have nothing else before page 24.
2 We would add in the word "stipulations" so "the 2 THE COURT: Anything else before 24, Mr. Gardner?
documents, stipulations and exhibits," since there have been a MR. GARDNER: No, your Honor.
3 number of stipulations. 3 THE COURT: All right. On 24?
THE COURT: All right. MS. ZORNBERG: Given that the government expects to
4 MS. ZORNBERG: Our next proposed change is on page 14. 4 hand out the redacted indictment to the jury during closing
5 This is the bracketed 404(b) charge. 5 arguments, there is a sentence in the middle that says "Before
6 THE COURT: Let's go this way. Mr. Gardner, do you 6 you begin your deliberations, you will be provided with a copy
7 have anything prior to page 9? 7 of the Indictment." I would suggest that the Court amend that
8 MR. GARDNER: I don't believe so, your Honor. 8 to say you have already been provided with a copy of the
9 THE COURT: Next, do you have anything prior to 14? 9 Indictment.
10 MR. GARDNER: Again, your Honor, I don't think so, 10 THE COURT: All right.
11 sir. 11 (Pause)
12 THE COURT: All right. Then 14. 12 All right.
13 MS. ZORNBERG: Your Honor, that's the 404(b) charge 13 MS. ZORNBERG: Our next proposal is on page 25. Your
14 that the defense wants it in. We have no opposition to it. We 14 Honor, about three-quarters of the way down, the sentence is
15 just don't know that it is necessary based on the record in the 15 "Perjury is the willful giving of false testimony before a
16 case. 16 competent tribunal while under oath." Given that there is
17 THE COURT: Mr. Gardner. 17 no -- we don't believe there is any dispute over the "competent
18 MR. GARDNER: Your Honor, I think I do want it in. I 18 tribunal" part. Either that term should be explained to let
19 can think about it overnight but -- 19 the jury know that a competent tribunal includes the taking of
20 THE COURT: All right. We will leave it in at least 20 testimony in court or at depositions in federal court cases, or
21 for the time being. 21 perhaps there is a way to take it out entirely since it is not
22 MS. ZORNBERG: Our next change is page 17, or 22 an issue. But just leaving it as competent tribunal, I think
23 proposal. We would propose taking out that first fully 23 the average juror would be very confused as to what a competent
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Page 976 Page 978
tribunal is. THE COURT: All right. So the proposal is to say "an
2 MR. GARDNER: I think it is fine the way it is, your 2 answer?"
Honor. MS. ZORNBERG: Yes. And "was false" instead of "were
3 THE COURT: Well, why don't we call it a judicial 3 false."
body? THE COURT: All right. Now in that line in between,
4 MR. GARDNER: That's fine, as well, your Honor. 4 it says "given by the defendant in this deposition," it really
5 THE COURT: Ms. Zornberg. 5 should be "his deposition."
6 MS. ZORNBERG: I think that's fine. My only concern 6 MS. ZORNBERG: Yes. Good catch.
7 is that the jury shouldn't be confused that it has to be 7 THE COURT: All right.
8 testimony in court, which the case law is very clear that a 8 MR. GARDNER: Your Honor, I don't know if it is here
9 deposition, while not before a judge, is nevertheless for 9 or somewhere else, but I would like to add "however" -- and I
10 purposes of the perjury statute before a competent tribunal 10 think this would be a good paragraph for it -- However, only
11 because it is taken in a federal case. Given that it is really 11 questions -- only the answers that are actually charged in the
12 not at issue, we think any confusion should be eliminated by 12 Indictment are to be considered by the jury.
13 perhaps an explanatory sentence following that one that just 13 MS. ZORNBERG: Well, your Honor, that would be legally
14 says the law, which is that depositions -- sworn depositions 14 incorrect. As the judge's -- as the instruction goes on to
15 taken -- 15 explain, the jury is instructed to consider the entire context
16 THE COURT: All right. Sworn depositions in court 16 in which answers are given. Certainly, there can only be a
17 proceedings. 17 conviction based on one of those answers; that's spelled out in
18 MS. ZORNBERG: Yes. 18 this charge. But to tell the jury you can't consider any other
19 THE COURT: Will be included, or roughly words to that 19 answers in the deposition, that is completely contrary to law.
20 effect. 20 MR. GARDNER: I'm just trying -- maybe I missed it. I
21 MS. ZORNBERG: Thank you. 21 am just trying to make the difference, because there has been a
22 THE COURT: This would include sworn deposition 22 lot of testimony read to say that in order to find the
23 testimony. 23 defendant guilty -- in order to find the false -- the question
25 (212) 805-0300 25 (212) 805-0300
Page 977 Page 979
MR. GARDNER: I just would ask, your Honor, that that is whether one of the charged answers is false, not whether
2 be -- then I guess we are going back to either competent 2 some answer is false.
tribunal or judicial body, that that be just a short sentence THE COURT: That's stated in great detail later on.
3 at the end rather than -- 3 MR. GARDNER: OK.
THE COURT: Yes. Judicial body and indicate that this MS. ZORNBERG: Your Honor, the government's next
4 includes testimony in a deposition authorized by court. 4 change is on page 28.
5 MS. ZORNBERG: Your Honor, the government's next 5 THE COURT: Yes.
6 proposed change is on page 26. In the middle paragraph, the 6 MS. ZORNBERG: The insert that we passed up to your
7 statement -- it says, "The government must prove that some 7 Honor, that one paragraph, we would propose to insert on page
8 answers," plural, "given by the defendant in deposition 8 28 just before the paragraph starting "The third element."
9 testimony were false." 9 THE COURT: All right. So this is where you insert
10 As the Court goes on to explain in the charge, the 10 the material?
11 government need only show one answer under the standard. So we 11 MS. ZORNBERG: Then a little further down on the same
12 respectfully request that that be made singular and say the 12 page, in the paragraph starting "A false statement is
13 government must prove that some "answer," singular, in the 13 material," instead of saying "is capable of influencing the
14 indictment was false. 14 decision," it should read, we submit, "a decision."
15 MR. GARDNER: Well, I think the word "some" then gets 15 And later in the paragraph, the same paragraph, it
16 confusing. Maybe we could say "an" answer. 16 also says "In fact, did influence the decision." Again, we
17 MS. ZORNBERG: That's fine. 17 would just say "a decision," consistent with the testimony that
18 (Pause) 18 it may have affected more than one decision at issue.
19 THE COURT: I'm sorry, Ms. Zornberg, you were on page 19 MR. GARDNER: It is not any decision, your Honor. It
20 29? 20 is the decision of the decision making body. I think it is
21 MS. ZORNBERG: No. That proposed change is on page 21 correct as written. The decision can contain more than one
22 26, in the middle paragraph, that starts, "Let me elaborate." 22 item but I don't think it is containing anything otherwise.
23 (Pause) 23 THE COURT: All right. I think Mr. Gardner would be
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Page 980 Page 982
1 0aqdoli7 Charge Conference 1 0aqroli8 Charge Conference
right on this one. The decision in its larger context, its THE COURT: It's No. 2.
2 larger setting. 2 MR. GARDNER: I think he is the first one, your Honor.
MS. ZORNBERG: Your Honor, we will just point out, the I think that is actually right.
3 reason we suggested the change is because there has been 3 THE COURT: He becomes No. 1.
testimony by A.U.S.A. Torrance that -- and it's been the MS. ZORNBERG: All right.
4 government's approach throughout all of the briefings in the 4 MR. GARDNER: Your Honor, this is where, if there is
5 case, that there were a number of different decisions to be 5 to be a good faith charge, I think we would ask that it be
6 made at this very time in the civil RICO case, including 6 added at 31.
7 whether to terminate the Consent Decree, what contempt remedy7 THE COURT: What I am going to do, Mr. Gardner, is on
8 to impose and so forth. And in that context, and given that 8 page 29, the place where there is discussion about incorrect
9 that's what the record has been, "a decision" would be more 9 statements made unintentionally because of honest mistake,
10 appropriate. 10 confusion, etc. It is in here that I will tinker with words to
11 (Continued on next page) 11 the effect that a good faith incorrect answer would not justify
12 12 a verdict of guilty.
13 13 MR. GARDNER: Thank you, Judge.
14 14 MS. ZORNBERG: Your Honor, one final thing. We have
15 15 been looking through the charge, actually trying to locate the
16 16 place in the charge where the jury is instructed that they may
17 17 consider the context. Of course, that is something that Mr.
18 18 Gardner opened on. I thought I saw it, but we actually can't
19 19 find it sitting here.
20 20 THE COURT: There is a charge where we specifically
21 21 say that the jury could look at the evidence in the record in
22 22 its totality. I used the word "totality." It's on page 30.
23 23 Look at the first paragraph: But while you cannot look into
25 (212) 805-0300 25 (212) 805-0300
Page 981 Page 983
1 0aqroli8 Charge Conference 1 0aqroli8 Charge Conference
THE COURT: "The relevant or the pertinent decision," the person's mind, the totality of the facts and circumstances
2 all right? 2 shown may enable you to draw reasonable inferences as to state
MS. ZORNBERG: Pardon? of mind. State of mind basically is that he intentionally
3 THE COURT: We'll say "the relevant or the pertinent 3 lied. It says you may well rely on circumstantial evidence in
decision." It's not every decision. It's only those that are determining the defendant's state of mind.
4 relevant to that situation. 4 MS. ZORNBERG: I see.
5 MS. ZORNBERG: How about "a relevant or pertinent 5 THE COURT: Anything else?
6 decision"? There was more than one decision. 6 MS. ZORNBERG: Not from the government.
7 MR. GARDNER: I disagree with the testimony, but that 7 MR. GARDNER: No, your Honor. Thank you.
8 is for us to argue to the jury. But I think the reason it is 8 THE COURT: Thank you. We told the jury 9:30, so we
9 written like this, it is probably taken from the standard 9 should meet again to go over the last draft. We will try to
10 charges, is that it is a good decision which did accomplish 10 have it available before so you can pick it up, if you are so
11 other things. 11 inclined, in chambers. If not, it will be here at 9 o'clock.
12 MS. ZORNBERG: The reason the standard charge says 12 (Adjourned to 9:00 a.m., October 27, 2010)
13 "the decision" is because typically perjury charges come up in 13
14 the context of the decision of the jury or the fact-finder. 14
15 This is one context where the case is about a number of 15
16 decisions going on, a number of pending matters going on in the16
17 same case. 17
18 THE COURT: Let me think about it overnight and we'll 18
19 see whether there is any need to make any change. 19
20 MS. ZORNBERG: Your Honor, we don't have any further 20
21 changes. On page 31 it says that Keith Martin is the 21
22 foreperson. I can't recall as I stand here if there is a Keith 22
23 Martin on this jury or if that is from another case. 23
25 (212) 805-0300 25 (212) 805-0300

Page 984
2 TRACY MURRAY
4 JOHN BLOESER
6 COLLEEN GEIER
8 MICHELE BONSIGNORE
Direct By Mr. Gardner . . . . . . . . . . 872
9 Cross By Ms. Zornberg . . . . . . . . . . 903
Redirect By Mr. Gardner . . . . . . . . . 928
10 GEORGE GRECO
11 Direct By Ms. Zornberg . . . . . . . . . 930
12 Cross By Mr. Lanpher . . . . . . . . . . 933
13
14 ROBERT WAGNER
15 Direct By Mr. Gardner . . . . . . . . . . 936
16 Cross By Mr. Lanpher . . . . . . . . . . 944
17 Redirect By Mr. Gardner . . . . . . . . . 952
18 Recross By Mr. Lanpher . . . . . . . . . 953
19
20
21
22
23
25 (212) 805-0300
Page 985
Exhibit No. Received
2 501, 502, 503, 504, 505, 508, 509, and . . . 812
801
3 500 . . . . . . . . . . . . . . . . . . . . 814
501A, 504A, and 505A . . . . . . . . . . . 814
4 603 . . . . . . . . . . . . . . . . . . . . 917
5 605 . . . . . . . . . . . . . . . . . . . . 870
6 809 . . . . . . . . . . . . . . . . . . . . 870
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
25 (212) 805-0300
Page 986 Page 988
1 0arroli1
UNITED STATES DISTRICT COURT 1 0arroli1
2 SOUTHERN DISTRICT OF NEW YORK burden, and it falls squarely under Rule 29 for an acquittal at
------------------------------x
3 2 this time.
4 THE COURT: Thank you. I have considered the motion.
v. 08 Cr. 0828 (VM) 3 I disagree. I believe the record is sufficient under the
5
JOSEPH OLIVIERI, standard of Rule 29 for a reasonable jury to find that the
6
Defendant. 4 government has met its burden to prove each of the elements of
7 5 the charge beyond a reasonable doubt. On the Rule 29 motion,
------------------------------x
8 6 as you know, the Court must resolve doubts and examine the
9 October 27, 2010 7 evidence in the light most favorable to the government. On
9:15 a.m. 8 that basis I find that there is sufficient evidence for this
10
Before: 9 case to go to the jury.
11
HON. VICTOR MARRERO, 10 Anything else that the parties wish to discuss before
12 11 we call the jury in?
District Judge
13 12 MR. GARDNER: There was one issue as to the charge. I
14 APPEARANCES 13 don't know if your Honor would like to do that now.
15 PREET BHARARA
14 THE COURT: I apologize. I also handed out the draft
United States Attorney for the 15 instructions with the modifications that we discussed. Are
16 Southern District of New York
BY: LISA R. ZORNBERG 16 there any comments on the modifications? Government?
17 MARK D. LANPHER
Assistant United States Attorneys
17 MS. ZORNBERG: One very minor one. At the top of page
18 18 2, the very first sentence says, "You have now heard all of the
19 SULLIVAN GARDNER, P.C. 19 evidence in this case as well as the final arguments of the
20 lawyers and the defendant." It was a little confusing.
CHRISTOPHER TUMULTY 21 THE COURT: Yes, I will correct that.
21
- also present - 22 MS. ZORNBERG: That's all, your Honor.
22 SA Roy Pollitt, FBI Case Agent
23 THE COURT: Mr. Gardner, any comments to the
23 Colleen Geier, Government Paralegal 24 SOUTHERN DISTRICT REPORTERS, P.C.
25 (212) 805-0300 25 (212) 805-0300
Page 987 Page 989
1 0arroli1 1 0arroli1
(Trial resumed, jury not present) revisions?
2 THE COURT: Good morning. First, does the government 2 MR. GARDNER: Your Honor, as to the added language the
have final word on Mr. Marone? government had suggested in 27 and 28, it is the defendant's
3 MS. ZORNBERG: We do, your Honor. We are not calling 3 position that that is material that is already covered in the
him to testify. charge and that this would lead to confusion. Your Honor, as
4 THE COURT: All right. On the schedule, then, the 4 evidence of this, at the top of page 28 it talks about "It is
5 government essentially rests? 5 for you, the jury, to decide whether a claimed lack of
6 MS. ZORNBERG: Correct. The one thing we overlooked 6 recollection or lack of knowledge is true or false based upon
7 yesterday was we forgot to ask the Court to give judicial 7 the evidence." That's not the standard for perjury. It has to
8 notice of Mr. Murray's indictment date. 8 be a knowing lie, it has to be an intention ally.
9 THE COURT: My understanding was that the parties were 9 I point that out as an example of why tinkering by the
10 going to stipulate to that. Mr. Gardner? If there is no 10 government at the last moment with the jury charge endangers
11 stipulation, then I'll give judicial notice. 11 what the standards elements are for perjury. I think the
12 MS. ZORNBERG: Yes, please. 12 Court's instruction without this requested paragraph covers the
13 MR. GARDNER: We did do a stipulation, Judge. I don't 13 material over and over again.
14 remember if it was in there or not. 14 It is clear that if he lied as an answer,
15 THE COURT: It was not. 15 intentionally and knowingly so, on a material question that he
16 MS. ZORNBERG: That is the only outstanding matter. 16 doesn't recall when in fact he did recall, that is covered by
17 THE COURT: All right. Mr. Gardner, do you wish to 17 the Court's charge. This is an intent to kind of tweak that a
18 renew your Rule 29 motion for the record? 18 little bit.
19 MR. GARDNER: Yes, your Honor. At now the close of 19 THE COURT: Ms. Zornberg?
20 the government's case, the defendant moves pursuant to Rule 29 20 MS. ZORNBERG: Mr. Gardner is flatly wrong. This is
21 for a directed acquittal from your Honor. There has been a lot 21 Second Circuit case law. This is the standard that we took
22 put up before the jury. But as to the perjury charges, which 22 right out of the precedent in this court.
23 are the subject of the case, the government has not met their 23 As the Court is aware, about half of the statements
25 (212) 805-0300 25 (212) 805-0300

Page 990 Page 992
that the jury is being asked to look at involve statements of why the government should be able to hand to the jury in their
2 "I don't recall," "I don't know," "I don't recollect." Even in 2 summations something that wasn't otherwise provided during the
pretrial briefing Mr. Gardner previewed to the Court that he trial.
3 plans to argue that it's impossible for a jury to get inside 3 THE COURT: Do we have copies?
Mr. Olivieri's head and know if in that moment he didn't MR. LANPHER: Your Honor, I will hand up 13 copies and
4 recall. 4 ask the Court's clerk to distribute them immediately prior to
5 This is a central issue in this case. There is no 5 my summation.
6 other charge on this. This is smack out of the Second 6 MR. GARDNER: Thank you.
7 Circuit's case law. Frankly, it's necessary. For Mr. Gardner 7 MR. LANPHER: Your Honor, as to the verdict form, the
8 to say that it misstates the perjury elements is just off base. 8 government is fine with this proposed verdict form.
9 It only goes to falsity. This is a charge on falsity. 9 MR. GARDNER: Your Honor, we do object. We did hand
10 It's telling the jury it's up to you to decide whether a 10 up a copy of our proposed verdict sheet. If there is a finding
11 claimed lack of recollection or lack of knowledge is true or 11 against Mr. Olivieri, it is important for the defendant on
12 false. It is completely appropriate and, frankly, necessary 12 appeal to know which statement is alleged to have been
13 given the particular statements that are charged in the 13 perjured. Otherwise, it is difficult to contest weight of the
14 indictment. 14 evidence and factors like that. I don't know how you go about
15 MR. GARDNER: Your Honor, I never briefed that issue. 15 doing that when they have charged 25 statements and the jury is
16 I'm not sure what counsel is referring to. And it's not out of 16 instructed you need to find on just one unanimously, but on
17 the Second Circuit. When we went and looked at the one Second 17 appeal or something of that nature you would be trying to
18 Circuit case the government cites from the '70s, that charge is 18 placate all 25 when that wouldn't be necessary.
19 not what they talk about. All that case says is that a jury 19 THE COURT: Thank you. Mr. Gardner, the difficulty I
20 can find, of course, that a statement of "I don't recall" or "I 20 have with your proposal and its implications is that if the
21 don't know" is false, was perjury. 21 government charges that Mr. Olivieri made 25 false statements,
22 We are not asking for that. This charge was not in 22 we would have to give the jury a list of 25 false statements
23 those cases, was not contemplated by those cases. The standard 23 and ask them yes or no which ones they find false and true.
25 (212) 805-0300 25 (212) 805-0300
Page 991 Page 993
jury charges on perjury cover this issue, and this is simply an That is not the way that this Court interprets perjury charges
2 additional attempt by the government to kind of tweak what is 2 to be decided.
otherwise before them. This is no different from any other case in which a
3 My associate is pointing out to me that part of the 3 jury is given multiple charges, multiple elements. They have
language that they pull out of the Second Circuit case, they to find all of the elements. They are given instructions that
4 are mixing apples and oranges. The Second Circuit is talking 4 in general they must find all the elements. There is no
5 about state of mind and the like, not falsity of the statement. 5 requirement that a verdict be broken down into some
6 Again, your Honor, it bears repeating on my part that true or 6 encyclopedic detail in which the jury has to check off every
7 false is not the charge. The charge is a little more 7 single finding they make. That is totally impractical.
8 complicated than a true or false statement to the jury. 8 This is the form instruction that this Court gives in
9 THE COURT: I heard the argument. Let me examine that 9 all cases, the simplest and the most complicated, and it
10 charge one more time. We still have a few more minutes before 10 embodies the instructions that are contained in the text of the
11 we bring the jury in, so I'll take that under consideration. 11 instructions: That they must find all the elements and they
12 I also distributed copies of a proposed verdict sheet. 12 must have found each of the elements beyond a reasonable doubt.
13 Have the parties received and reviewed the proposed verdict 13 MR. GARDNER: Yes, your Honor. Thank you.
14 form? 14 THE COURT: Anything else?
15 MS. ZORNBERG: We haven't seen it, your Honor. 15 MS. ZORNBERG: No, your Honor.
16 MR. GARDNER: While she is doing that, your Honor, a 16 THE COURT: Let's see if the jury is here.
17 little housekeeping. I think the intent is to hand out a 17 (Jury present)
18 revised indictment to the jury. The government has shown me 18 THE COURT: The government has informed the Court that
19 one that they made the revisions on. I don't have an objection 19 the witness who was not able to appear yesterday is unable to
20 to the revisions, Judge. I think they did an appropriate job. 20 appear again today, for health reasons. Consequently, the
21 My objection is to the government being the one that 21 government has decided to close or to rest its case. The
22 gets to hand it out. If this is being handed to the jury, it 22 defendant has also informed the Court that it rests or he rests
23 should be being handed to the jury by the Court. I don't know 23 his case. Consequently, the evidentiary portion of the case is
25 (212) 805-0300 25 (212) 805-0300

Page 994 Page 996
now complete, with one minor exception. certain facts, he can argue in his closing.
2 There is some evidence about the date or the time 2 We think it is important for the jury to see all in
frame within which Mr. Murray was indicted. The precise date one place as they hear evidence, as they hear evidence, to see
3 may not have been entered into the record at the time of Mr. 3 the time line, to see the connections, whatever is happening at
Murray's testimony. In a circumstance like that, the Court can once. This is all based on testimony, based on exhibits that
4 take judicial notice of public facts that are contained in the 4 have been admitted. There is nothing prejudicial about this.
5 official records. Judicial notice means that the Court can 5 MR. GARDNER: According him, it is based on that. If
6 instruct you that the fact judicially noticed is true and you 6 they have a demonstrative aid they intend to use, they have to
7 are entitled to that give judicial notice the weight that you 7 show it, like all demonstrative aids. We have to review it, it
8 give to any other evidence that has been admitted into the 8 has to be approved by the Court. To just put this up on the
9 case. 9 big board --
10 The date of the indictment of Mr. Murray was March -- 10 MR. LANPHER: Standard practice.
11 MR. LANPHER: It was May 24th. 11 MR. GARDNER: I disagree.
12 THE COURT: -- May 24th, 2006. 12 THE COURT: It is also standard practice that it be
13 MR. GARDNER: Yes. 13 shown to the other side so we can avoid precisely the kind of
14 THE COURT: Is the government prepared to commence its 14 argument we have here. And also sometimes words may be put
15 summation? 15 into demonstratives that are not strictly just the facts. For
16 MS. ZORNBERG: Yes, your Honor. 16 example, the characterization of "Jim Murray feeling the heat
17 THE COURT: Mr. Lanpher. 17 from the Mack investigation."
18 MR. LANPHER: Your Honor, I believe prior to that, the 18 MR. LANPHER: Again, your Honor, this is argument.
19 Court was going to distribute some materials. 19 This is a demonstrative.
20 THE COURT: Yes. You might remember that I indicated 20 MR. GARDNER: Then it shouldn't be there.
21 that we would provide you with copies of the government's 21 THE COURT: I agree with Mr. Gardner. To the extent
22 indictment in this case. I am now handing out copies for each 22 that it is not precleared, we are having an argument that could
23 member of the jury. I caution you, as I cautioned you before 23 have been avoided.
25 (212) 805-0300 25 (212) 805-0300
Page 995 Page 997
and will caution you again during the final instructions, that MR. LANPHER: That's why I showed it to defense
2 an indictment is not evidence. It is only an accusation made 2 counsel this morning, your Honor. We have been adjusting our
by the government, and it is the accusation that is at issue closing argument based on the evidence. The Court can, of
3 here that will govern your deliberations. 3 course, give an instruction that this is our argument, you
MR. GARDNER: Your Honor, may I approach? I was shown don't have to take this as true. The jury is the fact-finder,
4 one other thing that I think relates to the government's 4 the jury has now heard the evidence, they can consider whether
5 summation. 5 or not they think this is accurate. It is certainly proper
6 (At the side bar) 6 argument for us to summarize in a demonstrative. The
7 MR. GARDNER: Your Honor, I have just been shown what 7 government routinely uses PowerPoint presentations.
8 I guess the government intends to put this up on the display as 8 THE COURT: I don't dispute that.
9 some sort of demonstrative aid. We do object to that. If they 9 MR. GARDNER: Sure. But they are all shown before.
10 have an argument they want to make, they can argue. But to put 10 You have given me things at night almost every night during the
11 up a time line with "Jim Murray feeling the heat of Mack," they 11 trial. This was sitting on my desk this morning and I didn't
12 are trying to put up some sort of demonstrative aid when it is 12 notice it. This was not something that was previewed with me.
13 not an appropriate aid. 13 I didn't even read the whole thing. I read the first three
14 Anything that has been in evidence as a demonstrative 14 lines and then I interrupted.
15 aid or something like that, of course they can refer to. But 15 THE COURT: I am going to agree with Mr. Gardner.
16 this is a compilation of their own that they now want to use 16 MR. GARDNER: Thank you, Judge.
17 somehow to put up on the big screen as impacting the truth of 17 (In open court)
18 what is in here. 18 THE COURT: Mr. Lanpher.
19 MR. LANPHER: It is entirely standard practice for us 19 MR. LANPHER: Thank you, Judge. May I proceed?
20 to summarize the evidence, both through oral advocacy and 20 THE COURT: Yes.
21 through demonstratives. We are putting up a time line to help 21 MR. LANPHER: Good morning, ladies and gentlemen.
22 orient the jury. All of these facts are based on record 22 Last week my colleague Ms. Zornberg spoke to you. She said
23 evidence. This is all argument. If Mr. Gardner disagrees with 23 this is a straightforward case about lying. You have now heard
25 (212) 805-0300 25 (212) 805-0300

Page 998 Page 1000
1 0arroli1 Summation - Mr. Lanpher 1 0arroli1 Summation - Mr. Lanpher
the evidence. That's exactly what the evidence has shown. Mr. simple, ladies and gentlemen.
2 Olivieri took a sworn deposition and he lied under oath. He 2 Let me get right to it. I'm going to start with the
lied about his mob ties. He lied about his corruption. Moscatiello section. Those are Roman numerals (i) through (iv)
3 Did he lie in just any case? No. He lied in a civil 3 in the indictment. Look, what did Joseph Olivieri lie about?
RICO case brought by the government dedicated to exactly those What did he say? Basically, he claimed he never met with Lou
4 two things: Eradicating corruption and eradicating organized 4 Moscatiello, he knew him but he never met him, he never made
5 crime from the carpenters union. 5 arrangements to see the guy, and he claimed he never discussed
6 And is he just any guy? No. He was a trustee of the 6 union business with him, ever.
7 union's benefit funds. He was the head of one of the most 7 Ladies and gentlemen, the evidence you have heard in
8 important contract associations associated with the carpenters 8 this case shows beyond a reasonable doubt those claims are
9 union. 9 false. When Joe Olivieri walked in to that deposition on
10 Ladies and gentlemen, he lied because he had things to 10 December 18, 2007, he had a plan to lie about his ties to Lou
11 hide. He had done wrong, and he knew it. He lied to hide his 11 Moscatiello.
12 own corruption, his own ties with the Genovese family, his ties 12 First of all, remember this, it was no secret that the
13 to Jim Murray, his ties to Lou Moscatiello. 13 government was going to ask him about Lou Moscatiello. It was
14 He also thought he could get away with it. At the 14 no secret that that was one of the subjects at the deposition.
15 time, Jim Murray was gone, he was in Ireland, no sign that he 15 He knew these questions were coming. There had been litigation
16 was ever coming back, no sign that he would ever talk. And Lou16 over it. You heard about this from Ben Torrance. You heard
17 Moscatiello, you heard, was in jail. But, ladies and 17 about this from Olivieri's former lawyer Michele Bonsignore.
18 gentlemen, the truth has now come out. 18 The government said in its briefs to the Court that it
19 With this closing argument, I want to do a couple of 19 wanted to ask Joe Olivieri about his relationship with Lou
20 things. First, you now have the indictment. I'm going to walk 20 Moscatiello because it believed that Lou Moscatiello was a made
21 through it with you. I'm going to show you the false 21 member of the Genovese organized crime family, because it
22 statements. Also, this closing argument is our chance to go 22 believed Joe Olivieri had acted on Lou Moscatiello's behalf,
23 through the evidence, to go through it together, and to see how 23 and because it believed Lou Moscatiello himself had been
25 (212) 805-0300 25 (212) 805-0300
Page 999 Page 1001
the evidence shows beyond a reasonable doubt that Joseph involved in defrauding the district council benefit funds, the
2 Olivieri is guilty of this crime. 2 very funds that Joe Olivieri was supposed to protect.
Before I do that, let me explain briefly what the The judge in that civil RICO case said go ahead, ask
3 government has to prove. You are going to hear more about this 3 him the questions. So there was no surprise, there was no
from Judge Marrero in a little bit, but as I expect the Judge surprise to Joe Olivieri as he walked into that deposition that
4 will instruct you, there are four elements the government has 4 he was going to be asked questions about Lou Moscatiello. He
5 to prove. One is that the statements were given under oath. 5 had plenty of time to plan out how he was going to respond, how
6 There is no dispute about that. 6 he was going to lie.
7 So it is really the other three. First, falsity. In 7 I'm not going to reread to you the whole section of
8 at least one of the charged statements in the indictment was 8 the deposition on Lou Moscatiello. You heard it. You have
9 false. Simple. Two, that Mr. Olivieri knew it was false when 9 your binders. We read it during the testimony of AUSA Ben
10 he said it. And, three, materiality, that it mattered to the 10 Torrance. You can reread it. But here is the basic pattern.
11 civil RICO case. 11 Everyone knows the government is there to ask Mr.
12 If you take a look at the indictment, there are ten 12 Olivieri about Lou Moscatiello, and he tries every way he can,
13 sections or excerpts from Mr. Olivieri's deposition. Roman 13 every way he can, to make it sound like he had nothing more
14 numerals (i) through (x). It is really just a convenient way 14 than a casual relationship with Lou Moscatiello, that he is
15 to organize it. What matters is the underlined answers. There 15 some guy he bumped into in the neighborhood sometimes. Yeah,
16 are 25 underlined answers that the government charges as false.16 he knew him through family, whatever, but he would never talk
17 You will see there are multiple things underlined in each 17 business with Lou Moscatiello, he never made arrangements to
18 section. Again, that is just an organizational tool. What 18 see Moscatiello. This was a calculated effort to disguise the
19 matters is the answers. 19 truth.
20 Now, you are going to see in fact all 25 are false. 20 What did the government do in its questioning? It
21 All 25 of those statements are false. But if you agree that 21 followed up. It asked questions, broader and broader
22 any one, any one, of those statements was knowingly false and 22 questions. It asked questions every way it could to try to get
23 material, that's it, he's guilty. It's very simple. It's very 23 to the truth. Did you ever make arrangements to see Lou
25 (212) 805-0300 25 (212) 805-0300

Page 1002 Page 1004
Moscatiello? Did you ever discuss business with him? His This coffee shop wasn't in either of their neighborhoods, not
2 response: Deny, deny, deny. 2 where they worked. Why are they meeting there? Why are they
Let's look at the first two sections of statements in choosing that place, of all places, to meet? It's not an
3 the indictment. I've got them here. Let's look at this. 3 accident.
"When is the last time you spoke to Lou Moscatiello Frankly, it hardly looks inviting. It hardly looks
4 Jr.? 4 like some great coffee shop. This is in an office building.
5 "I haven't seen him for a few years. 5 It's not the kind of place you're just going to happen into
6 "How many is a few? 6 somebody. But what do you know about this place? It's their
7 "Four or five." 7 mob turf. Nastasi White was a mobbed-up company that had been
8 Lou Moscatiello has been in jail. You know that. OK. 8 paying off the Genovese family for years. Ladies and
9 "When you did see him more than four or five years 9 gentlemen, it's somewhere they felt safe. It's somewhere they
10 ago, how often did you meet with him? 10 could talk. It's somewhere they could arrange to meet.
11 "I never met with him." 11 How else do you know that Joe Olivieri made
12 What's a meeting, ladies and gentlemen? Common sense. 12 arrangements to see Lou Moscatiello? Special Agent Dan
13 It's not I bumped into him in the neighborhood, I saw him at 13 Conlon's testimony, let's look at that.
14 the bakery, we happened to talk. It's a meeting, something you 14 Can we put up Government Exhibit 26.
15 choose to do. You go to meet with the guy, you make an 15 Do you remember this? This is Jimmy Ryan's bar. You
16 arrangement to see him. It's clear as day. He says, "I never 16 heard how on July 24, 2000, Lou Moscatiello at his office, his
17 met with him." 17 base of business in Pelham Bay, got in his car, drove to Jimmy
18 What happens next? The government follows up. This 18 Ryan's bar. Why? To meet with Joe Olivieri. That wasn't a
19 is section 2. It's a little later in the deposition and its 19 chance encounter. They both drove there. They arranged to
20 following up. The government is trying to broaden it in case 20 meet there. It wasn't accidental.
21 there is any doubt. 21 What did they do?
22 "Besides just seeing him around the neighborhood, did 22 Let's put up the inside.
23 you ever have a relationship where you would make arrangements 23 They are sitting at this booth. They are talking
25 (212) 805-0300 25 (212) 805-0300
Page 1003 Page 1005

to see him? about business. I'll get back to this in a second. Look,
2 "No, I never made arrangements to see him. I don't 2 again, the point is this is an arranged meeting, exactly what
recollect ever making a meeting with him." he said he never did.
3 He denies it categorically, ladies and gentlemen. The 3 Let's go next to Detective Salvatore Arrigo, his
question couldn't be more clear, the answer couldn't be more testimony. Same thing. He testified, you may recall, about
4 clear. 4 surveillance he did at Pelham Bay. He was there looking for
5 Let's look at the evidence. He testified that he'd 5 Lou Moscatiello. They had a bug on Lou Moscatiello's office,
6 never made arrangements to see Lou Moscatiello. What do you 6 and he was doing surveillance about the same time as the other
7 call picking up Joe Rizzuto and driving him to a secret meeting 7 meetings you heard about.
8 at a hotel near LaGuardia Airport to meet his boss? What do 8 Think about what happened here. Detective Arrigo sees
9 you call that? That's a meeting. That's not a chance 9 Joe Olivieri's car drive up, Ford Explorer, same license plate
10 encounter. He made an arrangement to see the guy. That's not10 as Dan Conlon had seen, same time period. Ladies and
11 accidental. 11 gentlemen, you can infer that's Joe Olivieri.
12 Ladies and gentlemen, if you believe Joe Rizzuto, your 12 Think about what happens. Joe Olivieri drives up in
13 job is done. If you believe Joe Rizzuto, it's easy: Joe 13 his Ford Explorer. Lou Moscatiello comes out of the business
14 Olivieri is guilty. It's that simple. 14 that has a bug in it, talks to Joe Olivieri, and then Joe
15 How else do you know that Joe Olivieri made 15 Olivieri drives away. It's not a chance encounter. This is a
16 arrangements? Again, that's the question. How else do you 16 short meeting, no question, two minutes. It's short,
17 know that he made arrangements to meet with Lou Moscatiello?17 absolutely. It's not random. They made an arrangement to see
18 Well, you heard from Artie Johansen. 18 each other that day on the street outside of Pelham Bay
19 Can we put up Exhibit 551. 19 Brokers.
20 They met in this coffee shop. Lou Moscatiello, Joe 20 So when Joe Olivieri sits in a deposition under oath
21 Olivieri met in this coffee shop in the first floor of Nastasi 21 and he says, oh, no, I never met with Lou Moscatiello, I never
22 White. These weren't accidental meetings around the 22 made arrangements to see him, I don't recollect ever making a
23 neighborhood, ladies and gentlemen. It's exactly the opposite. 23 meeting with him, that's ridiculous, ladies and gentlemen. He
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is choosing to lie about his mob ties in a civil RICO case Let's keep reading. Can we put up the second page of
2 that's all about getting rid of organized crime. 2 that, zoom in on the top, on the text. At the bottom, "Call
Now I want to get to the next two sections of the the district council, taking jobs for cash." That's the
3 indictment. This is number (iii). The question is, "When you 3 district council of the carpenters union. "Taking jobs for
saw him," that is, Lou Moscatiello, "what did you discuss? cash." Again, they are talking about union business. "Did you
4 "'How's the family.' 'What's new.' 4 ever discuss any kind of business with him?
5 "Did you ever discuss any kind of business with him? 5 "No."
6 "Not to my knowledge or recollection." 6 I neglected to put up number (iv). Let's look at this
7 Again, this is Joe Olivieri carrying out his plan to 7 for a second. This is another false statement. "Did you have
8 lie, to make it sound like he had nothing more than the most 8 any conversations with Louis Moscatiello about anything to do
9 casual chance encounters with a mobster. He is trying to 9 with the construction industry at all? Do you recall any such
10 describe the relationship in some innocent light. But this is 10 conversations?
11 a lie. You know it's a lie. When they met they talked about 11 "Not to my recollection."
12 union business, they talked about mob business. 12 Getting back to this surveillance in Jimmy Ryan's bar,
13 How do you know that? Let's turn again to the Conlon 13 defense counsel tried to make some point on the cross-
14 surveillance. Before I turn to the surveillance itself, the 14 examination that you don't know exactly what Joe Olivieri was
15 timing of this is critical. 15 saying, you don't necessarily hear every part of the
16 Can we put up Government Exhibit 300. 16 conversation. Who cares? Ladies and gentlemen, who cares?
17 April 10, 2000, that's when Joe Olivieri is appointed 17 You don't have to hear the whole conversation to know that they
18 trustee of the funds. He replaces Artie Johansen, the guy who 18 are not talking about how is family, what's new. They are
19 has been paying off the Genovese family. That's when he is 19 talking about the carpenters union.
20 appointed. Three months later, within three months after that 20 As you have heard, Lou Moscatiello's purpose was to
21 appointment, what's he doing? He's sitting down in Jimmy 21 infiltrate unions on behalf of the Genovese family, and Joe
22 Ryan's bar meeting with Lou Moscatiello. 22 Olivieri helped him do it. The Genovese family union business
23 Let's look at the report of that meeting again. 23 was mob business, and that's what they are talking about.
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Page 1007 Page 1009
That's 653. What do they talk about? 651, I'm sorry. Let's Let's look at another part. "I don't want to meet
2 zoom in on the middle part, third block of lines. What is he 2 with anybody. I don't want to meet with anybody. I don't want
talking about? The funds. You have heard plenty of evidence to meet with anybody." You heard how Dan Conlon described
3 in this case to make it pretty clear when they are talking 3 that. You saw his notes. You saw how he underlined it three
about the funds, they are talking about the district council times, exclamation points. This was a big deal. He described
4 benefit funds, the funds that Joe Olivieri had a duty to 4 it. He was emphatic. He remembered this. This was a command
5 protect because three months before he had been made trustee. 5 from Lou Moscatiello. It's a boss telling Joe Olivieri a
6 That's what they are talking about. He is supposed to be 6 command on behalf of the Genovese family.
7 answering to those funds, but he is answering to Lou 7 So when Joe Olivieri testified under oath that he
8 Moscatiello. 8 never met with Lou Moscatiello, that he never made arrangements
9 Now let's look at the next block. "Forde wants 9 to meet with Lou Moscatiello, that he never discussed
10 somebody. Get it done as fast as possible." Ladies and 10 construction business with Lou Moscatiello, those are lies.
11 gentlemen, they are talking about Mike Forde. What do you know 11 Those are lies, and Joe Olivieri knew it.
12 about Mike Forde? What have you heard about him during this 12 Now let me address something else on (iii) and (iv).
13 trial? He was the head of the carpenters union at this time, 13 Both of these you see, "Not to my knowledge or recollection"
14 top guy in the benefit funds, top guy at the district council. 14 and "Not to my recollection." Let me take a moment on that.
15 He was as corrupt as you can get, no question. Mike Forde was15 He does the same thing on some of the questions about Jim
16 taking bribes right and left. 16 Murray that we will get to later on. Why does he do that? Why
17 But you also know Joe Olivieri was close to Mike 17 does he say "Not to my knowledge, not to my recollection? It's
18 Forde. You know that. You heard it from John Greaney, you 18 part of his plan. He thinks that if he can sit there and say
19 heard it from Jim Murray. What did Jim Murray tell you? When 19 "I don't remember," "not to my recollection," he can get away
20 he got into trouble, Joe Olivieri called Mike Forde for him. 20 with it.
21 We will get back to that in a bit. Look, right here, Lou 21 Ladies and gentlemen that is not, that is not, a
22 Moscatiello is telling him, "Forde wants somebody. Get it done 22 defense to perjury. You don't get off the hook by claiming you
23 as fast as possible." 23 don't remember something if in fact you do. You have to tell
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1 0arroli1 Summation - Mr. Lanpher 1 0ardoli2 Summation - Mr. Lanpher
the truth, period. MR. LANPHER: Now, another thing. Look, that hotel
2 How do you know? How do you know that Joe Olivieri 2 room meeting. It's all about the construction industry.
recalled these meetings? How down that he recalled talking That's the whole point. The Genovese Family was trying to put
3 about union business with Lou Moscatiello? Use your common 3 their guy, Joe Coriasca, into Local 14, trying to get their
sense. There are certain things in life you don't forget. grips deeper into another union. Of course that's about the
4 Joe Olivieri didn't forget his organized crime 4 construction industry.
5 relationship with Lou Moscatiello. He did not suddenly forget 5 So, look, before I turn to Jim Murray and that
6 standing in the lobby of the Loews hotel in February 2000 there 6 testimony, let me just address one thing. In his opening
7 for a building trades conference and threatening Joe Rizzuto. 7 statement, defense counsel said this case is silly. It's
8 He didn't forget telling Joe Rizzuto, remember where you came 8 silly, he said, because we're taking things out of context.
9 from or you're going to be in a world of hurt. Do you really 9 That cannot be farther from the truth, ladies and
10 think he forgot that? Of course he didn't. 10 gentlemen. You have the deposition. You've heard it. Read
11 He told Joe Rizzuto, you're refusing to put a guy in 11 it. Read it again. Take your time. If you have any doubt,
12 as assistant business manager to your local? You're refusing 12 look at those questions. Again, what you have is a calculated
13 to do that? You're going to have to come see my boss, Lou 13 effort to lie. As the government asked broader and broader
14 Moscatiello. Do you think he forgot that? It's ridiculous. 14 questions, his lies become clearer and clearer. There is no
15 Do you think he forgot driving Joe Rizzuto to a meeting with 15 question, you have the government pressing every which way for
16 Lou Moscatiello near La Guardia Airport, where the first thing 16 the truth. And you have Joe Olivieri lying again and again.
17 that happens is Lou Moscatiello pats Joe Rizzuto down, checks 17 So, look, questions on Lou Moscatiello, were they
18 him for a wire? Do you think he forgot that? There's no 18 false? Yes. No question. Did he know they were false? Of
19 chance. 19 course he did. And were they material to the civil RICO case?
20 Joe Rizzuto, you saw him. He's 74 years old. He 20 Absolutely. Absolutely. This is a case about -- the whole
21 looks great for 74, but he's 74 years old. He remembers these 21 point of the case is to eradicate organized crime influence
22 meetings as clear as day. Why is it so clear in his mind? Not 22 from the Carpenters' Union. It's a case where at that very
23 every day he gets threatened with a world of hurt, ladies and 23 time, in December 2007, the union is trying to tell the Court
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1 0arroli1 Summation - Mr. Lanpher 1 0ardoli2 Summation - Mr. Lanpher
gentlemen. Joe Olivieri didn't forget these things either. we don't need the Consent Decree any more. We don't need it.
2 Just like he didn't forget meeting with Lou Moscatiello, with 2 We're clean. We've eradicated corruption. We've gotten rid of
Nastasi White, he didn't forget taking orders from him after he the organized crime influence.
3 has been made trustee of the benefit funds. 3 Of course it's relevant. If a trustee of the Benefit
So when he said, I don't remember meeting with Lou Funds can't even tell the truth about his relationship, past or
4 Moscatiello, I don't recall ever talking about the construction 4 present, with an organized crime figure, of course it's
5 industry with him, that's not true. That's part of his plan to 5 relevant.
6 bury the truth. 6 At the very time of this deposition you heard the
7 (Continued on next page) 7 union was trying to -- was opposing the government's efforts to
8 8 put in a more effective investigator. Of course it would have
9 9 been relevant if a trustee were truthful about his
10 10 relationships with organized crime.
11 11 Look, you know, at the time Olivieri and his
12 12 association were claiming we don't need a neutral job referral
13 13 system anymore. Do you remember that? It was about the
14 14 request system. He was saying we don't need that because we're
15 15 dedicated to eradicating corruption.
16 16 Of course it's relevant -- of course it's relevant --
17 17 that he had a past and a present intention to lie about his
18 18 relationships with organized crime.
19 19 OK. Now let me turn to the perjury related to Jim
20 20 Murray. Here there are six sections, six sections charged.
21 21 I'm going to go through those in detail again, the same kind of
22 22 thing with the boards. I'll go through those in detail in a
23 23 minute. But basically here's what he had to say about Jim
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1 0ardoli2 Summation - Mr. Lanpher 1 0ardoli2 Summation - Mr. Lanpher
Murray, the corrupt contractor who at the time just fled the close to as many people as he can. Powerful people. People
2 country. Been indicted. Been investigated. He's been 2 like Joe Olivieri.
indicted for defrauding the Benefit Funds. Their relationship starts in the spring of 2004,
3 And here's what Joe Olivieri had to say about him. I 3 that's when it starts. Jim Murray moving into a new line of
don't have a relationship with him. I never discussed business work, development. You heard about this. Cambridge and Oxford
4 with him. I never arranged to meet with him. I have no idea 4 sites. Big projects. Jim Murray was excited about these
5 how often I spoke to Jim Murray. I can't remember how I 5 projects. One was going to be a nine-story condo building,
6 started working on the Cambridge job site, or even how I found 6 another one 15 stories. These are big buildings. He put in
7 out about the job. And I had no involvement in transferring On 7 ten-and-a-half million dollars of his own money into those
8 Par's work to Commercial. 8 buildings.
9 Ladies and gentlemen, these claims are false. There 9 They are also nonunion. Think about that. Jim
10 are 20, 20 underlined answers in the Indictment related to Jim 10 Murray, signed up with the Carpenters' Union, doing these big
11 Murray. If you agree that any one of those answers was 11 nonunion projects. So he had to keep his name off things. It
12 knowingly false and material, again, your job is done; he's 12 was red hot with Walter Mack. You heard of this. If Walter
13 guilty. It's very simple. 13 Mack and the union had known Jim Murray was doing these
14 So before I go through these sections in detail, I 14 projects nonunion, they would have shut him down. It would
15 just want to run through a quick time line, give you a sense of 15 have been the end. Big problem for Jim Murray. So he had to
16 what Joe Olivieri was doing with Jim Murray in 2004, 2005. 16 keep things quiet. Couldn't tell anyone. But what does he do
17 There is no dispute here, there is no dispute On Par 17 when he starts looking at subcontractors?
18 was a corrupt company. 2001, On Par joins the Wall & Ceiling 18 Who does he hire? He hires Joe Olivieri's company.
19 Association. By that point, On Par, Jim Murray, already paying 19 How did he hear about him? From Finbar O'Neill. Finbar
20 off people. He was defrauding the Benefit Funds on a massive 20 O'Neill, his partner in crime.
21 scale. He was paying off Mike Forde. He was paying off John 21 Finbar O'Neill told you, Joe Olivieri's got an
22 Greaney. He was paying off shop stewards, business agents, 22 excavation company. And Jim Murray saw the advantages. He saw
23 whoever. 23 why that would be good for On Par.
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Page 1015 Page 1017

And why did he join the Wall & Ceiling Association in But take a moment here. Common sense. Why would Jim
2 2001? You heard. Because he needed that request system. The2 Murray feel comfortable hiring Joe Olivieri, a trustee of the
request system that the Wall & Ceiling Association had, he Benefit Funds, a guy with duties to smoke out fraud? Why would
3 needed it, because that would allow him, Jim Murray, to choose 3 Jim Murray hire him on a nonunion project? Why is he going to
100 percent of his workers on his jobs instead of 50 percent. be comfortable with him? You heard it. He didn't see any
4 It would help him keep defrauding the Benefit Funds. 4 risks. Finbar O'Neill told him, you can hire this guy.
5 So, look, not long after he joins the Wall & Ceiling 5 Jim Murray knew Joe Olivieri would play ball. He knew
6 Association, at that point he still has no relationship with 6 Joe Olivieri wouldn't blow the whistle. And he didn't. So Jim
7 Joe Olivieri. Be clear, no relationship. But not long after 7 Murray courted him. He showed Joe Olivieri some house he had
8 that Walter Mack is appointed. You heard about that. Walter 8 renovated. He talked about the project. 2004, he gives Joe
9 Mack started to investigate. He starts looking at Irish 9 Olivieri the work.
10 contractors, Irish contractors that are defrauding the Funds. 10 Even the defendant's own witness, Rob Wagner -- you
11 It was a big deal. You heard from Jim Murray that he was 11 heard from him just yesterday -- even he acknowledged that it's
12 worried. By 2003, 2004, the heat is really turning up on Jim 12 Jim Murray who recommends Joe Olivieri to the site. It's Jim
13 Murray. Does he know Olivieri at that point? No. He heard of 13 Murray who is calling the shots. It's Jim Murray who is
14 him. He knows he is a powerful guy. But he has no 14 deciding who gets hired. There is no question, Jim Murray
15 relationship in 2003. 15 brings Joe Olivieri onto that project. For a reason. It's not
16 His relationship starts soon after that. Because you 16 just because he's the best excavator in town, ladies and
17 heard, you heard there are problems coming down the pike for 17 gentlemen. It's because of who he is.
18 Jim Murray. He knows it's coming. He knows On Par has a 18 And from that point forward -- you saw the contract,
19 lifespan. He knows Walter Mack is looking at them. He knows 19 October 22, 2004. From that point forward Joe Olivieri's
20 what he's done. 20 company starts working. He would make over a million dollars
21 So he wants to get people in his corner. It is not 21 on those projects, Cambridge and Oxford. That is a lot of
22 enough just to have Mike Forde your pocket. It is not enough 22 money, ladies and gentlemen. That's Jim Murray's money.
23 just to have John Greaney in your pocket. He wants to get 23 Jim Murray was calling all the shots on these jobs.
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Page 1018 Page 1020
And Joe Olivieri was doing business with him. No question, Olivieri keeps going on playing both sides.
2 they were talking about this. No question, they were meeting 2 Let's look at the second thing he does. Less than a
on that job site. You heard it from John Bloeser. You heard month later he helps Jim Murray again. This is a big one. You
3 it from Jim Murray. Again, you heard it from the defense's own 3 saw that Jim Murray was deposed March 10, 2005, after that. He
witness. Jim Murray and Joe Olivieri would go off; they would was deposed by Walter Mack. Big problem for him. You heard he
4 talk to each other. Not with Rob Wagner. Jim Murray and Joe 4 took the Fifth. He didn't answer the questions.
5 Olivieri were the ones with the relationship. 5 And what happened after that deposition, that same
6 When it came to payment for Joe Olivieri's company, 6 day? You learned that as Jim Murray left that deposition,
7 Jim Murray would go easy on him. You heard that. What did he 7 Walter Mack said that's it. I'm going to move to close down On
8 say? He told you. He didn't want to piss Joe off. That's 8 Par. That would be it for Jim Murray. Take him out of
9 what he said. 9 business. Shut down the fraud.
10 It's the whole point of Jim Murray hiring Joe Olivieri 10 What did Jim Murray do? He called Joe Olivieri.
11 in the first place is to get him close. He certainly wasn't 11 Let's put up Government Exhibit 500, the top of page
12 going to mess that up by charging $15,000 for backfill or even 12 12.
13 $250,000 to fix the collapsing garden wall. For exactly the 13 Look, Jim Murray had brought Joe Olivieri into his
14 same reason that when a couple of months later, 14 corner for precisely this moment. OK? Well, look, you saw,
15 December/January 2005, when Joe Olivieri asked for money, 15 the deposition ends at 11:40. 25 minutes later, after he has
16 $730,000 to go into a house flip, or a couple of house flips, 16 gotten word that he is being shut down, he beeps Joe Olivieri.
17 Jim Murray hands over the money. This wasn't just for business17 Ladies and gentlemen, that's a 911 call. That's Jim Murray
18 purposes, ladies and gentlemen. It was so Joe Olivieri could 18 saying I need your help. You got to make something happen.
19 stay in Jim Murray's corner. That's the point. 19 What does Joe Olivieri do? He starts making calls.
20 This wasn't a typical deal for Jim Murray. He had 20 Then he calls him back 12:17, 12:30, 12:37, 12:54, 12:55.
21 done house flips before, sure, but he had no experience with 21 Ladies and gentlemen, these are frantic calls. They are
22 Joe Olivieri's guy. He had never done work like this before. 22 scrambling. And you heard, you heard from Jim Murray what had
23 This was different. But he wanted to keep Joe Olivieri close. 23 happened. Joe Olivieri gets this call. He calls Mike Forde.
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Page 1019 Page 1021

So he gave him the money. No strings attached. No deeds. No It's really kind of ridiculous. This moment Jim
2 mortgage. No nothing. Just a promise from Joe Olivieri, sure, 2 Murray calls the guy he's doing work with who calls the guy
I'll pay you back. You'll get half the profits. he's paying off. I mean, the two guys in his corner get Walter
3 Pretty generous deal. 3 Mack to stop. They stop the shutdown of On Par. You couldn't
Now, you saw the check that Jim Murray got out of it. have better corroboration than that. That's exactly what's
4 Look, there is no question, that's Jim Murray, Joe Olivieri 4 going on.
5 sending that out. But why is the timing critical? Because 5 What does stopping Walter Mack do? It continues the
6 after that, after they've started the Cambridge site, after 6 fraud, ladies and gentlemen. It keeps On Par from going
7 they've started the Yonkers projects, Joe Olivieri goes on to 7 bankrupt. It buys him time. You heard Jim Murray testify
8 do four important things for Jim Murray, four important things 8 about how important it was to buy time.
9 that he needed to lie about in his deposition. OK? Four 9 Did Joe Olivieri disclose what he knew? Of course
10 important things. 10 not. Did he tell anyone I'm doing nonunion work with the guy?
11 Number one. Eleven days after Jim Murray gave Joe 11 No. He just helped Jim Murray, the guy who just paid him.
12 Olivieri a check for $730,000, eleven days after Walter Mack 12 Number three. Stopping Walter Mack that day wasn't
13 served a subpoena on On Par, you heard what Jim Murray said 13 enough. Things are still red hot. So what does Joe Olivieri
14 about that. It was his "oh, shit" moment. Now the trouble was 14 do? He helps Jim Murray transfer all his jobs to Commercial,
15 really here. 15 Larry Cooley.
16 So who did he reach out to? Who did Jim Murray reach 16 Again, Jim Murray knew Walter Mack is still closing
17 out to when he gets that subpoena? Two people. Finbar 17 in. So Joe Olivieri brokered a deal for Jim Murray to transfer
18 O'Neill, his partner in crime; and Joe Olivieri, the guy he 18 his work to Larry Cooley. For Jim Murray that was huge. That
19 spent courting, the guy he got into his corner. What do they 19 was everything. Again, it buys him time, keeps On Par alive,
20 do. They both refer them to lawyers they know. Neither of the 20 keeps him from going bankrupt, allows him to continue the
21 them report it to the Benefit Funds. Finally, this is right in 21 fraud.
22 the middle about the deal about the Yonkers project, right in 22 After that he keeps paying guys off the books. You
23 the middle of the Cambridge nonunion job sites. But Joe 23 heard that. It is all thanks to Joe Olivieri.
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Page 1022 Page 1024
Number four. Let's put up Government Exhibit 255. business, how you doing, I'm busy, I'm not busy, just general
2 Again, this is later that summer. They are still in business 2 topics? Did you ever arrange specifically to meet with him?
together. They are still doing the Cambridge site. They are No.
3 getting ready on the Oxford site. They are doing the Yonkers 3 These are lies, plain and simple. Jim Murray had no
projects. relationship with Joe Olivieri before the Riverdale projects.
4 And what does Joe Olivieri do? He approves a payment 4 There were no earlier meetings about Jim Murray's
5 plan. He approves a payment plan for Jim Murray that, again, 5 delinquencies.
6 buys him time. That's the whole key for On Par at this point; 6 But regardless, I mean, how clear are these questions:
7 that's everything to him. 7 Did you ever discuss business with him, how's business, how you
8 Now, you heard some testimony, well, aren't payment 8 doing, I'm busy, I'm not busy, did you ever arrange
9 plans routine? Don't a lot come across your desk? This was 9 specifically to meet with him?
10 not routine, ladies and gentlemen. This was a big amount. And 10 You know, how about what's going on with the
11 it was everything for Jim Murray. No question. 11 collapsing garden wall? How about, are you going to invest in
12 Did Joe Olivieri disclose what he knew? Did he 12 this hydrogen lab? Will you loan me $730,000 to do some
13 disclose his conflict of interest? No. He approved it. He 13 Yonkers houses? Of course they discussed business together.
14 helps the guy. He helps the guy. 14 It's not close.
15 And what does he get? He keeps getting paid, because 15 And, again, this last answer might be even more
16 On Par is not bankrupt. 16 absurd. He says he never arranged specifically to meet with
17 Look, again, out of all four of these things that are 17 Jim Murray? You don't think they arranged to meet on the
18 going on, Jim Murray is still reporting to Joe Olivieri and 18 Cambridge job site? What about meeting in the I-Hop with Larry
19 they are still doing all sorts of business together. 19 Cooley? What about going to look at houses that Jim Murray
20 Let's put back up Government Exhibit 500. 20 flipped? Of course they made arrangements to see each other.
21 Two-year period. Two-year period. There is 387 21 Let's put up the phone records again. 387 calls over
22 calls. They call each other every other day. That is an 22 a two-year period. Remember how defense counsel made a point
23 approximation. They don't literally call each other every 23 that a lot of these calls are short, one and two minutes?
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Page 1023 Page 1025
other day. On average they call each other every other day. Yeah. That's right. That's because they are arranging to
2 Ladies and gentlemen, they were doing all sorts of 2 meet. That's what you have there, ladies and gentlemen. They
things together. And then the Feds start closing in. You've don't talk on the phone. They are arranging to meet. They see
3 heard about this, the Larry Cooley incident. You heard about 3 each other. That's false.
Jim Murray's flight. You heard about how Joe Olivieri was Next section.
4 scared. You heard about how he is scared that Larry Cooley 4 During the period between the time you first met him
5 would cooperate. You heard how he was scared that Jim Murray 5 and the time you started meeting with him -- or with James
6 would cooperate. 6 Murray about his delinquencies, about how many times did you
7 But once Jim Murray fled, he was in the clear. That 7 talk to him?
8 is the mind set -- that is the mind set that Joe Olivieri had 8 I have no idea.
9 as he walked into that deposition on December 18th. OK? Think 9 Approximately?
10 about it. Think about all these things he had done for On Par. 10 I can't approximate.
11 Totally corrupt company. He knew about it. He knew what he 11 Is it more than two?
12 had done. He knew what he had done to help them. He knew what 12 I don't even know. I have no idea.
13 he hadn't disclosed. He knew it was wrong. But he thought he 13 Look, again, it is not close. He didn't start talking
14 could get away with it. So let's turn to what he said. 14 to Joe Olivieri about On Par's problems and delinquencies until
15 This is number 5. What is your relationship with Jim 15 he had him in his corner. That's the whole point. That was
16 Murray? 16 how Jim Murray operates. So of course they spoke more than
17 I don't have a relationship with him. 17 twice. I mean, again, the pattern of calls you saw, it follows
18 Between the time you first met him, right after he 18 the relationship perfectly.
19 joined the Wall & Ceiling Association, around the time you had 19 Next, number seven:
20 these meetings about his delinquency to the Benefit Funds, did 20 Did you ever -- ever -- talk to James Murray outside
21 you ever speak to him in that period? 21 of an association event or a party?
22 He came to a couple of meetings. 22 Yes, I could have saw him at something else.
23 Did you ever discuss business with him, how's 23 You could have -- look, the government is trying to
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Page 1026 Page 1028
clarify, as broad as possible -- you could have, but do you area, and I asked him if I could bid on the work.
2 recall if you did? 2 Who was that person?
I'm not a hundred percent sure. No, I can't -- I I don't recall his name right now.
3 don't recall. 3 This isn't in the section -- they are asking all about
Did you ever do business with James Murray? Jim Murray. OK?
4 I never did business with James Murray himself. 4 Who was that person?
5 Look, again, this is absurd. He can't recall if he 5 I don't recall his name right now.
6 ever talked to Jim Murray outside of an association event? 6 How did you know that person?
7 They flipped houses together. Joe Olivieri went to Jim 7 Someone just told me they were putting up a job in
8 Murray's farm. He's meeting with him on a weekly basis at the 8 that area.
9 Cambridge site. And he says he doesn't recall if he ever saw 9 You don't recall who that someone was?
10 him outside of an association event? I mean, it's not close. 10 No. I'm sorry. I don't.
11 Did you ever do business with James Murray? You know, 11 Are you aware if either James Murray or any company
12 of course he did. He says, Well, I never did business with 12 associated with him did any work at that site?
13 James Murray himself. Give me a break. Of course he is doing 13 I'm unaware of it.
14 business with James Murray himself. It doesn't matter 14 He doesn't recall the Cambridge job site? He doesn't
15 whatsoever that there is corporate shells involved. When he's 15 recall how he got a job where he got $900,000 of work? He's
16 going to the Cambridge and Oxford job sites, he is meeting with 16 just trying to hide his involvement with Jim Murray. It is
17 Jim Murray. You heard that. Jim Murray is the guy with 17 clear as day. He was courted by Jim Murray.
18 decision making authority. Even Rob Wagner, their witness, 18 Again, you heard this even from his own witness, Rob
19 told you that. 19 Wagner. It's not close. Of course he's aware that James
20 Do you honestly think that Joe Olivieri did business 20 Murray, or a company associated with him, did work at the
21 Tracy Murray? You saw her. You saw what happened, ladies and 21 Cambridge job site. You can't -- you know, it's not -- it's
22 gentlemen. 22 not close. He just lies, plain and simple: I am unaware of
23 Number eight: Do you know if James Murray owns any 23 it.
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Page 1027 Page 1029
other companies or at any time owned any other companies? OK. Last one.
2 Not to my knowledge. 2 Number ten. This is the Commercial one.
Have any of your companies, the companies that you Do you know if there ever came a time when Commercial
3 owned, ever worked on the same job site as On Par? 3 Drywall began working on sites where On Par had previously been
Not to my knowledge. working?
4 Again, these are answers of somebody who is trying to 4 Not to my knowledge.
5 lie. Does he explain, well, Jim Murray was behind the projects 5 Do you know if there ever came a time that Commercial
6 in Riverdale? Of course not. Does he explain Jim Murray 6 Drywall hired workers who had previously worked for On Par?
7 invested in my house flipping venture? Of course not. Does he 7 I didn't get involved with any hiring of carpenters or
8 say Jim Murray and I did work together and our On Par employees 8 anything like that.
9 did the carpentry? Of course not. It is not -- look, he just 9 But besides whether you were involved, do you know
10 falls back on his crutch, "not to my knowledge, not to my 10 from any source?
11 knowledge." That's not a defense. That is not a defense when 11 No, I don't have any idea.
12 you know it to be false. 12 Did you arrange or facilitate in any way the transfer
13 Look, Jim Murray wasn't advertising that these were On 13 of either business or workers from On Par to Commercial?
14 Par projects, no question, but that's the point. They had to 14 Did I?
15 keep it hidden. That's why he lies about it. If he had 15 Yes.
16 announced that these were On Par jobs they would have been shut 16 No. I never did.
17 down. But Joe Olivieri was going to On Par to pick up a check. 17 Did anyone at the Wall & Ceiling Association?
18 You heard that. So, you know, these are just false answers. 18 Not to my knowledge.
19 OK. Look, let's go to number nine. I think this one 19 Again, this one is not close. There are three people
20 is my favorite. This is about the Cambridge job. I mean, look 20 involved in the transfer of jobs from On Par to Commercial:
21 at this: How did you come to do that work, that excavation 21 Jim Murray, Larry Cooley, and Joe Olivieri -- the broker of the
22 work? 22 deal.
23 I had met a gentleman who was doing the project in the 23 You heard from Jim Murray and Larry Cooley about this.
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Both acknowledged Joe Olivieri set up the deal. And Joe Ladies and gentlemen, when it came to the trustee's
2 Olivieri said he has no knowledge of any of this? It's 2 duties when it came to Benefit Funds, it doesn't matter. He
ridiculous. had a duty to protect. Stuart Grabois told you that, and you
3 Look, let's pause for a second on Larry Cooley. He 3 know it from Joe Olivieri.
didn't want to testify here. He's friends with Joe Olivieri. Let's put up a part of his deposition.
4 He did not want to testify. He was subpoenaed. He was going 4 Let's zoom in on the bottom two-thirds.
5 to take the Fifth. And he was immunized. He has no reason to 5 "Q Are you a fiduciary as a trustee?
6 be lying. And he told you that Joe Olivieri set up the deal so 6 "A I am a fiduciary.
7 Jim Murray could transfer his work. And he told you that Joe 7 "Q And what does that mean to you?
8 Olivieri kept checking in after the fact because he thought it 8 "A That my responsibility is to the working carpenters, not to
9 was a good deal for Larry Cooley. 9 my contractors."
10 Look, it also makes perfect sense. Joe Olivieri is 10 Ladies and gentlemen, it is clear as day -- it doesn't
11 going to put these guys together. But think about this. He 11 matter that he was head of Wall & Ceiling Association -- he had
12 keep bringing two thoroughly corrupt contractors together and 12 a duty. But when it came to On Par, that meant he had a duty
13 then he is claiming he has no knowledge of it? It's 13 to recuse himself, to stop what was going on, to report it.
14 ridiculous. 14 But he didn't. Instead, he actively helped Jim Murray. He
15 Look, ladies and gentlemen, the reason he lied over 15 helped him by stopping On Par from being shut down, by buying
16 and over again is because he knew -- he knew it was wrong to 16 him time, transferring jobs to Commercial, approving the
17 assist On Par in this way. He knew what he had done was a 17 payment plan. It was exactly the kind of thing that he wanted
18 violation of his duties, and he wanted to hide it. 18 to hide. He wanted to hide it. He thought Jim Murray was
19 Look, as a trustee of the Benefit Funds, Joe Olivieri 19 never coming back. He thought he would never cooperate. So he
20 had a duty to stop On Par's fraud. He had a duty to report 20 lied. He lied over and over again.
21 things. He had a duty to not engage in On Par matters when he 21 Now, look, I am about to finish. Let me just say
22 had a conflict of interest. Did he do any of that? No. As 22 this: Anytime -- anytime -- someone takes an oath, it's
23 Mack grew closer, he helped On Par more. 23 serious business, but here, for Joseph Olivieri, it was
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How did that help Joe Olivieri? He kept getting paid. especially serious. He was deposed in a civil RICO case where
2 He got over $2 million -- $2 million -- from Jim Murray in this 2 for over 20 years the Department of Justice had been trying to
time. That is a lot of money. unearth the corruption, the organized crime, the seedy
3 And, look, let me just spend a quick moment on 3 underbelly of the Carpenters' Union. And when Joseph Olivieri
materiality for the Jim Murray questions. Why do all these was deposed on December 18, 2007, he had an opportunity to shed
4 questions matter? Again, it matters because the relationship 4 light on the truth. He chose to bury it, ladies and gentlemen.
5 that he is trying to hide was corrupt. In a civil RICO case, 5 He chose to lie again and again.
6 dedicated to eradicating corruption, it is not close. It is 6 The perjury is blatant. It's blatant.
7 not close. 7 I thank you for your attention. And I ask you to find
8 As a trustee, Joe Olivieri can't go around cozying up 8 Joseph Olivieri guilty as charged.
9 to Jim Murray. He couldn't play both sides. Even he asked his 9 MR. GARDNER: Your Honor, may we just take a
10 own witness, George Greco. He acknowledged that. He 10 two-minute break?
11 acknowledged, if you have a conflict of interest, you've got to 11 THE COURT: Could you remove the boards?
12 report it. You can't approve a payment plan when you've got a 12 Just two minutes.
13 conflict. 13 MR. GARDNER: Thank you, Judge.
14 Look -- and let me address one other thing. It 14 (Pause)
15 doesn't matter one bit that Joe Olivieri was a management 15 THE COURT: Any member of the jury who wants to step
16 trustee. You heard defense counsel on this a lot. He spent a 16 out, you may for the next two minutes.
17 lot of time trying to point out that Joe Olivieri was a 17 (Pause)
18 management trustee, not a union trustee. 18 MR. GARDNER: May I, your Honor?
19 In his opening statement, defense counsel actually 19 THE COURT: Wait for the jury.
20 said, and I quote: "He's what's called a management trustee. 20 (Pause)
21 That means he represents the employers, not the members, the 21 THE COURT: Mr. Gardner.
22 employers on that fund." I gather the point he is trying to 22 MR. GARDNER: Thank you, Judge.
23 make is, you know, the duties were different. 23 Good morning, ladies and gentlemen. I did use the
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Page 1034 Page 1036
1 0ardoli2 Summation - Mr. Gardner 1 0ardoli2 Summation - Mr. Gardner
word "silly" in my opening, and it may not have been the right about one of these issues, and everybody has to agree. If half
2 word because it is not silly to Mr. Olivieri or his family. 2 the panel says, well, we think he was fuzzy about one and the
And as I heard the closing of the government, maybe it other half says he was fuzzy about another, that is not enough.
3 sounded a little flip on my part. I think the charges are 3 Everybody has to be on the same page in order for the
ludicrous. I think they are outrageous. I think it's government to prove beyond a reasonable doubt he lied about one
4 outrageous that you have a full government staff weeding 4 of these issues, he knew he was lying, and it was material to
5 through a deposition transcript trying to pick out little piece 5 the civil proceeding, as it stood at that time. OK? Not as it
6 of the testimony and then bring a perjury charge. 6 stood in 1994. But as it stood at that time..
7 Mr. Olivieri, you heard the testimony, and I'll talk 7 Ladies and gentlemen, he lied about nothing. When I
8 more about it, but he was the director of an association with a 8 read this for the first time, when I first -- you heard that
9 huge membership. He was also a Funds trustee. And the Funds,9 there was a substitution of counsel. Ms. Bonsignore and then
10 the union side of that, you heard a lot about corruption as to 10 myself. I read this. I couldn't believe it. I couldn't
11 the union officials. There was a sea of corruption going on. 11 believe it. I reached out for counsel for the government and
12 Mr. Olivieri is swimming in the middle of it and nothing is 12 said this can't be real. This is not the way you do it. This
13 touching him. 13 is not what the government does. I had never been involved in
14 You heard when I asked -- again, this is not the 14 a case like this.
15 perjury. I don't want to delve into what they want to talk 15 Well -- and I don't know why. Perhaps you heard
16 about, but I have to. Sitting here, I have to respond as a 16 testimony from Mr. Torrance, who Joe Olivieri put in an
17 person, even though it is not the charges. 17 affidavit against what the government wanted to do with the
18 When I asked Mr. Cooley -- forget that. When I asked 18 unions in terms of the remedy of the contempt, but they glossed
19 Jim Murray, their star witness, Did Joe Olivieri ever ask you 19 over not just Joe Olivieri but all the associations put in a
20 for a payment? No. Like he looked shocked, almost. Did you 20 similar affidavit. But maybe they didn't like Joe Olivieri's
21 have give him a cash payment? Well, no. Well, isn't that how 21 the most. I questioned Mr. Torrance about that. He couldn't
22 you do bribe everybody? You know, the shop stewards, the 22 really tell me what exactly it was, whether the union likes it.
23 business agents, the head of the union, isn't that how you do 23 Joe Olivieri put in the affidavit.
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Page 1035 Page 1037

it? Oh, yeah. Yeah, that's how I did it. Joe Olivieri have Ladies and gentlemen, there is no -- I'll say it over
2 any part in that? Not at all. 2 and over. None of these statements are lies. The only way
Mr. Cooley, my other opportunity I asked him the same that the government can even stand up here and present it to
3 question. He looked like he was going to jump out of his seat. 3 you, with a nice board that I don't have, is to leave out
Joe Olivieri ask you for any money? No, never. Did you ever critical elements -- and I'm surprised, because I'm hoping --
4 give any money to Joe Olivieri? No, never. 4 regarding them, and then they leave them out. So this
5 That is not what he does. He was the director of an 5 timeframe, OK, the timeframe of the Lou Moscatiello questions.
6 association. That association has a seat on the Funds, and 6 And I asked Mr. Torrance about this, with Jim Murray
7 they put him on there because the director is always on it, 7 and Lou Moscatiello. You directed him to a specific time
8 just like Mr. Greco was, and the ball gets rolled. So does he 8 period, didn't you?
9 have a fiduciary obligation to the membership of the Funds? 9 Yes.
10 Yes. But does he wear two hats, and is he also the director of 10 OK.
11 the association and represent those employers? Yes. Clearly. 11 Did he answer those questions as to that timeframe?
12 Now, you finally have been given the actual charges in 12 Yes.
13 the case. And you'll see they are underlined at the various -- 13 OK. They're not lies. When the government then
14 those are -- those are what the government claims are the false 14 closes, they don't want to talk about the timeframe that
15 statements. Not this other business. Not the pictures of the 15 Torrance directed you to, they want to talk about up to the
16 work sites that are pretty and kind of interesting if you like 16 present. And I am going to talk about that.
17 construction, but the charges are the underlined sections of 17 But before I do, I want to talk about one thing
18 the Indictment. Now, the Indictment is just a charge, but 18 because I think it's so exemplifies the government's position.
19 that's the charge. 19 Mr. Lanpher stood up and said, Well, you know that Joe lied
20 In order for the government to prove their case, they 20 because he said he never discussed union business with Lou
21 have to show you, beyond a reasonable doubt, that Mr. Olivieri 21 Moscatiello. That's what he said at the deposition, and he's a
22 intentionally lied -- I'm not going to say misrepresented, 22 liar and he's a bad guy.
23 let's call it what it is -- he sat there and intentionally lied 23 The problem -- first of all, I think that statement is
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Page 1038 Page 1040
true. But the problem is that's not part of the case. That is Right? The same area.
2 not charged in the Indictment. 2 So in 2000, the year 2000, the most they can point to
In fact, if we look to -- you know, you have the about his relationship with Lou Moscatiello is the car was
3 deposition; it is in evidence. If you look to the various 3 outside Lou Moscatiello's location in Pelham Bay, and that he
questions that were asked, and I will pick out -- on page 171, saw them in a restaurant in Pelham Bay.
4 for example, and there is a series of these: "With respect to 4 Well, it is not a very strong relationship. It
5 Lou Moscatiello, Sr., did you ever discuss with him anything 5 doesn't amount to lies on behalf of Joe Olivieri. It certainly
6 relating to the District Council of Carpenters? 6 doesn't include the time period Mr. Torrance told you he was
7 "I don't recall ever talking to him about anything to 7 talking about -- four or five years of when they last saw each
8 do with the District Council of Carpenters." 8 other, four or five years before the deposition.
9 Well, ladies and gentlemen, that's not charged. 9 When Mr. Olivieri sits down and starts the
10 That's not one of the perjury charges. 10 deposition -- and maybe I should have started with this -- he's
11 It's -- and then they continue. There is a series of 11 asked a whole lot of questions, and maybe too much to read.
12 questions that actually if they were charged I might not be 12 He's asked a whole lot of questions about the 50/50 rule, the
13 able to stand up here and do what I'm about to do and say it is 13 request system, all that stuff that Mr. Torrance told us was
14 all not material to what he is being deposed about, because 14 important and interesting to him. OK? Again, not part of the
15 these questions might have been material, except that Lou 15 charges. He answered all those questions. That's the bulk of
16 Moscatiello is in jail and Lou doesn't have any more influence. 16 the deposition; that's all fine. But now they ask him at the
17 But these questions at least they are on subject, right, they 17 end of the day, or towards the end of the day, they ask him,
18 are relevant: "Did you ever any discussions with Lou 18 uh, they ask him, "Did you ever meet with Lou Moscatiello? No,
19 Moscatiello relating to the District Council Benefit Funds?" 19 I'm sorry. Let me start at the beginning.
20 This is on 172, line 14. The same thing, right? We 20 Where is that? On page 164, the very first question
21 are asking about the District Council Benefit Funds. 21 about Lou Moscatiello: "Do you know Lou Moscatiello, Sr.?"
22 "I never talked to him about the Benefit Funds." 22 Does he equivocate? Does he hide the fact? He just says it.
23 Well, that's not charged as a perjury statement. He's 23 "Yes. I know Lou Moscatiello, Sr."
25 (212) 805-0300 25 (212) 805-0300
Page 1039 Page 1041
not accused of that. You are not here to decide that. So even And then what the government glosses over is he goes
2 the next statement: "Did you ever discuss with Lou Moscatiello 2 on for a couple of pages describing and answering questions
any company that employed District Council Carpenters? about how long he has known Lou Moscatiello, Sr. and how there
3 "No. I don't recall that either." 3 is even a family relationship between himself and Lou
OK. Now, again, he hasn't spoken to Lou Moscatiello Moscatiello, Sr. There is no hiding. There is no pretending.
4 in four or five years, at a minimum. He's told them that. 4 He is just answering the questions.
5 They don't disagree with that. But the questions that even 5 Then what happens? Then on page 167, after he says
6 potentially they could stand up here and say are relevant -- 6 Joe Olivieri says I haven't seen him for four or five years,
7 and they know that, which is why counsel points to one. He 7 then he starts asking him questions about that time period.
8 says he never discussed with the union business. Ah, we don't 8 OK? Four or five years before the deposition, did you meet
9 like that answer. Well, it is not before the jury. It is not 9 with him? Well, I seen him around.
10 a charged offense. It is not before you. 10 He is still not denying seeing him.
11 So what do they do, then? They get those answers. 11 See him at his diner? See him in the neighborhood? I
12 They don't claim that's perjury, because it is not. They are 12 don't know.
13 asking him about four or five years earlier. And four or five 13 Is that one time that they saw him at the diner, does
14 years earlier he's got no relationship with Lou Moscatiello. 14 that qualify as I saw him at a diner? He tells it to them. I
15 There are no dealings with Lou Moscatiello. It's not there. 15 don't know where they are claiming that he is somehow being
16 How do you know this? And I am going to go through 16 dishonest.
17 the questions. But how do you know this? Their witnesses. I 17 Next question, Mr. Torrance again, I asked him about
18 would have called them and find out what they said though the 18 this, he wants to make sure we are still talking about that.
19 detective. I couldn't have asked for better testimony. When 19 So four or five years ago -- that's how he starts the question.
20 was the last time? Oh, 2000 there was one meeting where they 20 That's what he's talking about.
21 had a drink or a sandwich in a bar in a public park, and then I 21 So four or five years ago, he still lived in the same
22 saw his car in 2000. Where are those? Well, those are in 22 neighborhood; is that true? You lived in, meaning Joe
23 Pelham Bay. Where did he go to see his mother? Pelham Bay. 23 Olivieri. No. And then he explains his mother still lives
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Page 1042 Page 1044
there, though, and that's why he is still there. placard -- and he said, now, later on in the deposition, later
2 And then the next question by Mr. Torrance is: And at 2 on he's asked this question, besides just seeing him around the
that time Lou Moscatiello, Sr. also lived in Pelham Bay? neighborhood, and then there is an answer, no, I never made
3 Again, we are still talking about the same time period. And 3 arrangements to see him. Later on that happened. It didn't
this is interesting because if you look at page 168 -- I'm not happen later on. That happened on the same page where he's
4 just rambling, I promise -- 168, line 6, is the first perjury 4 been restricted to four or five years before. That's the
5 allegation regarding Moscatiello. And it says, "I never met 5 question.
6 with him." 6 They may not like the question, but that's the
7 If you look up at the top of that page, it says five 7 question that was posed to Joe Olivieri. That's the question
8 years ago. They are talking about four and five years ago, how 8 that is being posed to you, whether they proved to you beyond a
9 often did you meet with him? That is very clear. "I never met 9 reasonable doubt that he lied. Not that it could be
10 with him." 10 interpreted different ways. Not that it is a "sort of." Not
11 So what evidence do they show you that four or five 11 that it is, well, maybe Joe Olivieri actually did think that
12 years before he met with him? Nothing. Nothing. In fact, 12 he's talking about four or five years earlier because that's
13 they showed you the opposite. That's why I said I would have 13 what Mr. Torrance said, and even if there is a legitimate
14 called those detectives if I knew what they were going to say, 14 disagreement, that is not perjury.
15 although they did it for me. One of them, they're sitting on, 15 Perjury has to be he's sitting there knowingly and
16 to use, you know, their terms, Lou Moscatiello, Sr. They've 16 intentionally lying about -- to do that, and you will get
17 got a bug on his property. They've got a bug on his phones. 17 instruction from the Court, I don't want to step on the Court,
18 He's sitting out his premises until 2003. The FBI agents are 18 but he's going to tell you, there needs to be a precise, clear
19 also sitting on him. 19 question and a precise, clear lie. "Sort of," "maybe," that
20 You have two different groups. You have the 20 doesn't do it.
21 detective, who is now with the state, with the ponytail, he is 21 OK. Now, this runs through, again, he's asked -- and
22 sitting on him until 2003. Then you have the FBI agent, and he 22 I jumped to it because of Mr. Lanpher's testimony before I
23 is sitting on him also. What do they see? They don't see 23 intended to, but he runs through these questions about the
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Page 1043 Page 1045
Olivieri. If Joe Olivieri was stopping by or talking to him, Benefit Funds and the Carpenters. No perjury.
2 they are not just sitting on that location, they are following 2 Page 173, if you care to read it, all kinds of
Lou Moscatiello. Where is the evidence that Joe Olivieri met questions about the collective bargaining agreements, District
3 with them during the time period that's being asked? 3 Council, Collective Bargaining. Answer, answer, answer, answer
He's supposed to answer the questions that are being all regarding Lou Moscatiello and all no perjury. Right? It
4 asked. And it is not there. 4 is just not here.
5 And when you know -- it actually goes -- forget that 5 Yet, what do they charge him with? Well, what did you
6 they didn't prove to you beyond a reasonable doubt that he lied 6 talk about when you last saw him four or five years ago? How's
7 about it, you actually know as you sit here that it didn't 7 the family? What's new? I don't know. That's perjury? That
8 happen because you have two detectives saying they watched the 8 we are going to convict him on? That's a lie? Somehow they
9 heck out of Lou Moscatiello. Believe me, if they would have 9 claim that's material to the proceeding and therefore he should
10 seen Joe Olivieri anywhere near him, you would have heard about 10 go to jail.
11 it. They go so far as to describe his car stopping for under a 11 Ladies and gentlemen, how's the family? What's new?
12 minute or two outside the premises. They are going to call a 12 That's what he talks about. And that's what they pick out as
13 witness just to talk about that. If there would have been 13 perjury? If you read -- just on 173, just to read that page,
14 other meetings other contacts at all, you would have heard 14 of the questions that are at all potentially relevant, not
15 about it. It is not here. 15 perjury. The silliness -- and I'll go back to that question,
16 So is that a lie? Well, Mr. Torrance stands up here 16 the silly questions, the background, kind of the step into the
17 and says, you know, they must have met. OK? Forget the 17 more material stuff questions when you are doing a deposition,
18 sentence above, where I mean Mr. Lanpher stands up and says, 18 that stuff, well, maybe that's not clear so let's go after him
19 well, they must have met. Forget the sentence above that where 19 on that.
20 Mr. Torrance is only into four or five years. 20 Ladies and gentlemen, it is not perjury. There is
21 Now, to get to the second perjury count, which is the 21 nothing here to even -- forget, again, beyond a reasonable
22 same page, line 21 to the end, line 25, Mr. Torrance -- I mean 22 doubt that that is a lie. It doesn't even approach it. It is
23 Mr. Lanpher stood up here and said, well -- and he has a little 23 just not a lie so I don't know how they can even claim it even
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Page 1046 Page 1048
approaches perjury. out and say, well, some of the general stuff must have been
2 It runs through. Again, ladies and gentlemen, the 2 false. Again, ladies and gentlemen, it is from 1999. Nothing
last perjury allegation from Lou Moscatiello is on page 174. to do with the District Council, and, maybe most importantly,
3 And this one, this is after the questions specifically asking 3 nobody asked Mr. Olivieri about it. If you want to convict
him about District Council Benefit Funds, all that stuff that somebody and have them face criminal penalties, you've got to
4 is not charged as perjury. 4 ask them a specific question. Right? They didn't do it.
5 And in the middle of two nonperjury questions, at the 5 Now, I am going to turn to Jim Murray now.
6 top of that page and then on page, line 13, that's not perjury 6 And when I look at Jim Murray, Jim Murray is a little
7 either, but the perjury one is lines 6 to 11. And they say: 7 different because, as Mr. Lanpher pointed out, Lou Moscatiello
8 Well, yes, when he's answering questions about the District 8 was duped. Right? Joe Olivieri knew that he was going to be
9 Council and the Funds -- again, that's what that civil 9 asked questions about Lou Moscatiello, those five questions.
10 proceeding is about, that's what he has been told he is there 10 You know, 20 questions of the Indictment relate to Jim Murray.
11 to talk about, right -- that is not perjury, that is not a lie. 11 Jim Murray, there was no mention that Jim Murray would be asked
12 That's OK. 12 about Joe Olivieri. This was out of the blue. OK.
13 But let's just ask him, generally speaking, did you 13 When Mr. Torrance was testifying -- I'm going to keep
14 ever talk to Lou Moscatiello about the construction industry. 14 coming back to Mr. Torrance for a couple reasons, but one is he
15 Not to my recollection. That one they are going to charge him 15 is the U.S. Attorney. He is out of their office and he was the
16 with. 16 person taking the deposition. And yet he's giving me answers
17 It makes no sense. To read it, it is not reasonable. 17 that are exactly what I would hope he would give me.
18 The only way they can present it to you and claim, well, he 18 So when Mr. Torrance says one -- I said, what were you
19 must have lied is to do it in a vacuum. To do it -- and you 19 taking the deposition regarding. And he tells you. Well,
20 heard me stand up and say, no, let them see the whole 20 Mr. Olivieri's knowledge of Lou Moscatiello and other organized
21 deposition because you need to see it. Only in a vacuum can 21 crime figures regarding corruption at the job site who were
22 they even claim maybe, maybe that was fudged. Not just a clear22 District Council members.
23 lie to his accountant, but maybe it was fudged. Mr. Lanpher 23 I said, OK. Good.
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says, well, boy, if you believe Mr. Rizzuto, this is easy. Was Jim Murray an organized crime figure? No.
2 That's a big "if," I'll say that to you. Mr. Rizzuto, 2 Well, so if you knew today that Jim Murray was an
no one to be believed, is still trying to save his own skin, organized crime figure, if he is taking the deposition today of
3 but put that aside, because I don't even need to do the usual 3 Joe Olivieri, would you ask any of those questions? No.
attorney thing about going after cooperators, because all At the getgo, he's telling you Jim Murray is not
4 Mr. Rizzuto said is that in 1999 there was something that 4 relevant to the proceeding. 20 of their 25 questions are not
5 happening to do -- he was the head of Local 14 and he was 5 relevant to the proceeding.
6 corrupt, and something happening with regard to a meeting with 6 I'm not telling you that; Mr. Torrance is telling you
7 Lou Moscatiello and Joe Olivieri being there. All right? In 7 that. He's telling you if -- and, again, I should stop and
8 1999 regarding Local 14. OK? 8 say -- and the judge will give you instructions, but you as a
9 Now, Mr. Olivieri wasn't asked about that, not at all. 9 jury can ask for a read back of any or all testimony, anything
10 Why not? I don't know. But Mr. Rizzuto has been cooperating 10 that's unclear. So you are not supposed to take what I say he
11 since 2003. He's been telling the government everything he can11 said or what the government says he said, it's your
12 think of since 2003. You bet the government would know this. 12 recollection, or from a read back. It is your understanding;
13 And if the government wanted to ask Mr. Olivieri about that 13 not mine.
14 meeting, they should have asked him. They had an obligation to14 (Continued on next page)
15 ask it. 15
16 It is not appropriate to ask general questions about 16
17 District Council and District Council Funds -- 17
18 MR. LANPHER: Objection, your Honor. 18
20 MR. GARDNER: They asked questions about the District 20
21 Council and the District Council Funds, right, knowing Rizzuto, 21
22 he is a long-time cooperator, and yet when those questions are 22
23 answered honestly, what do they do? They want to pull Rizzuto 23
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Page 1050 Page 1052
1 0arroli3 Summation - Mr. Gardner 1 0arroli3 Summation - Mr. Gardner
I don't have the transcript, I wrote down the page I'm trying to say to preface it for this moment where I stand
2 number so I can quote what Mr. Torrance said. He said Jim 2 before you and say, I asked the same questions of Jim Murray
Murray is not an organized crime figure and he would not ask and he gave me the same answers that Joe Olivieri did, that Joe
3 those questions today, because he knows that. Well, then Jim 3 Olivieri is now being prosecuted for. There is no difference.
Murray is not relevant to the civil matter. That's from Let's start with that. The first perjury as to Jim
4 Torrance's own memo. 4 Murray is on page 185/line 10, I should say alleged perjury. I
5 The fact that back then he says, I kind of thought he 5 think that's clear. 185/line 10. "What is your relationship
6 might be, then I crossed him and I questioned him about that, 6 with James Murray." Joe Olivieri said, "I don't have a
7 why. His only basis was because he had a construction company7 relationship with James Murray."
8 that was getting large and he was paying cash to guys. He 8 I asked Mr. Torrance, you said "What is your
9 wasn't able to tie that into organized crime. I don't think he 9 relationship with James Murray?" He fudged, he hesitated a
10 had a good-faith basis to believe he was an organized crime 10 little bit, and he said, "No, yes, yes. I was asking him
11 figure in 2007. 11 present tense December 2007, what is your relationship with
12 But it doesn't matter, because he's telling you as he 12 James Murray?"
13 sits here today he knows that those questions regarding Jim 13 "I don't have a relationship with James Murray." He
14 Murray were not relevant, were not material, and had nothing to 14 didn't.
15 do with the civil RICO proceeding. That's why they weren't 15 I asked James Murray as he sat here, "What is your
16 prefaced to Judge Haight. That's why they weren't discussed 16 relationship with Joe Olivieri?" "I don't have a relationship
17 before him. That he had nothing to do with it. 17 are Joe Olivieri." Did he perjure himself? Did he violate his
18 Jim Murray on another level was already gone, he was 18 cooperation agreement? Should he go to jail for 48 years? No.
19 out of the picture, he was old news. I asked him, could Jim 19 He doesn't have a relationship with Joe Olivieri, and Joe
20 Murray impact Judge Haight's remedy at all? No. Jim Murray's 20 Olivieri doesn't have a relationship with him.
21 gone. He's no longer part of this picture. 21 As I go through these, ladies and gentlemen, there are
22 Let's talk about the some of Jim Murray's questions. 22 25, as the government said. It's hard because there are 25.
23 Even though they weren't material, they weren't relevant to the 23 But as we go through them, we see things like this that are
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proceeding, Joe Olivieri didn't lie about anything. If we just so bizarre. I suggest to you your common sense brings to
2 start with page 184, Mr. Torrance starts asking him questions 2 this: What does that mean for the other ones? Why this being
about Jim Murray. Same beginning as he did for Moscatiello. prosecuted?
3 184. 3 Why is this statement in here? The government can
"Do you know someone named James Murray?" Is there take it out. They didn't have to charge this statement, but
4 equivocation? Is there hesitancy? What does Joe Olivieri say? 4 they chose to. Maybe they didn't talk to Mr. Torrance, I don't
5 "Yes." Where is the hiding? There is none. There is no 5 know. "What is your relationship with James Murray?" "I don't
6 secret. 6 have one." Plainly not a lie. He didn't have one.
7 "When did you first meet him?" He gives you a whole 7 On the same page, the next question, "When was the
8 discourse, when he joined the association, and then he goes 8 last time you talked to him?" "Two, three years ago." Right?
9 through it. Right? 9 He begins by saying -- again, this is conversation, and it's
10 I'm going to stop for a second before I do this. I 10 relatively quick, it's a page. I ask you to think about this
11 have to say as counsel for Mr. Olivieri, I have to think to 11 as you read through this. Conversation. "Do you know James
12 myself they have put up for you all kinds of things: The 12 Murray?" "Yes." "What is your relationship with him?" "I
13 construction site, how the construction site ran, all kinds of 13 don't have a relationship with him."
14 bad things that union officials were doing that have nothing to 14 Then he says, "When was the last time you saw him?"
15 do with Joe Olivieri. I have to think as I'm asking questions 15 Making clear that he has already said -- I get stumped because
16 of the witnesses, how can I best bring out to you that there is 16 it is so clear to me. He has already said he knows him. Then
17 no perjury? It was hard because you don't have the indictment 17 he says, what's your relationship? Well, I don't have one.
18 yet. 18 OK, that must mean there is a break. Right?
19 So I'm kind of silly. I'm up here asking questions of 19 Then the next question from Torrance, this is natural
20 Jim Murray himself. Jim Murray, Mr. Murray, do you have a 20 conversation, OK. "When was the last time you saw him?"
21 relationship with Joe Olivieri? And he says no. As the jury, 21 That's all very natural flow, and I don't have any problem with
22 you don't have the indictment, so that's maybe a weird 22 those questions. The problem is they are somehow saying that
23 question. Why did you ask, do you have a relationship? But 23 that is perjury. So, "When was the last time you spoke with
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him?" "Two or three years ago." That's the natural flow of That's exactly what was supposed to happen. It's his job as
2 the conversation. OK, great. Now they are talking about that 2 director of the association to take that phonecall and talk to
period of time. him and see if he can do anything about this.
3 Mark Lanpher doesn't want to talk about the period of 3 Not that he is trying to not get Jim Murray to pay.
time that Mr. Torrance is talking about because different But just as a director of the association. He does wear two
4 things are important to Mr. Torrance. Mr. Torrance is asking 4 hats. He is also a funds trustee. That's the nature of the
5 questions about a particular time period because that's what's 5 conflict. There is a conflict here. But in wearing those two
6 important to him for the deposition. That's what he wants to 6 hats, he is absolutely supposed to take that call.
7 know for the deposition. Mr. Lanpher doesn't like that. Even 7 Interestingly, they don't claim that's perjury.
8 though I opened up on it, he doesn't mention to you the time 8 Right? Did you take that call? Did you meet with him as
9 period. 9 executive director of your association? Yeah, that's what I
10 Now, I should mention to you that, I don't know if the 10 was meeting with him about, that's what I took these calls
11 Court instructed you, they get to do a rebuttal, so I don't get 11 about, that's how I'm gaging this. They don't say that's
12 the last word. They get the last word, which is shorter than 12 perjury, that's all fine. They just want to try and give it
13 the other closing, but they get to stand up and rebut and try 13 some sort of nefarious overtone.
14 to get the last word with you. So, as you are going through 14 I think this is largest answer on page 186, almost the
15 this, I'll ask you to try to keep in mind the stuff we talked 15 whole page. He describes his job duties. There is no hiding
16 about as well, as they are going through it. 16 this. There is no hiding that that is part of his job
17 We are right at the beginning of James Murray's 17 description as association director. Not perjury.
18 testimony. "When was the last time you saw him?" "Two to 18 Then Mr. Torrance wants to make it clear. "I'm
19 three years ago." 19 talking about a particular time period before that series of
20 At page 186, we are two pages in, you see the 20 meetings about On Par's delinquency. Right?" He's bringing
21 question, this is Mr. Torrance, "So in that meeting or the 21 him right back. Joe has just gone on about being executive
22 series of meetings, were you meeting with him in your capacity 22 director and is explaining his job. Torrance brings him back.
23 as executive director of Wall & Ceiling or as a trustee or 23 Page 187. This I questioned Mr. Torrance a lot about
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something else?" So the government stands up and says, well, and I'm going to spend a couple of minutes on. At the
2 Joe Olivieri doesn't want anything to do with Jim Murray, he's 2 beginning of that page, again, Mr. Torrance clearly knows there
distanced himself, he doesn't know Jim Murray, he's got nothing is a meeting. There is no hiding going on. Mr. Torrance says,
3 to do with Jim Murray. 3 "Between that time that you first met him." Again, Torrance
Mr. Torrance seems to understand that there are was clear: I meant when he joined the association, 2001.
4 meetings, there are a series of meetings. He uses the word 4 "Right after you joined the association and the time
5 "meetings" three times. There is no confusion, based on the 5 that you had these meetings about his delinquency to the
6 testimony that Joe Olivieri said he knows him, he's met with 6 benefit funds, did you ever speak to him in that period?"
7 him, there are meetings, there is a series of meetings. I 7 What's the answer? "He came to a couple of meetings." This
8 don't get where this is coming from, that there was some sort 8 they charge as perjury, "He came to a couple of meetings."
9 of general denial of knowledge. 9 They claim that is a blatant and clearcut lie.
10 Then he asks him, "As executive director." That's not 10 How do I rebut that? One way is asking Jim Murray.
11 charged as perjury, but it is important, I guess, just to note. 11 Jim Murray, talking about that time period, this is what I did.
12 Mr. Lanpher says, well, he's an important guy, Jim Murray wants12 Basically, I read the question. I said, Jim, this period to
13 to reach out for him. When Jim Murray has a problem with 13 this period, how many times did you ever see Joe Olivieri in
14 Walter Mack, who does he reach out for? Boy, this is really 14 person? He gives almost the exact same answer. He says,
15 nefarious. He reaches out for Joe Olivieri. 15 "Well, a couple of times, there was a uh, uh, one association
16 Well, you heard Jim Murray say, that's who I would 16 function, and then he said I think the other, there was a
17 reach out for; he's the head of the association; he's the 17 Halloween event, I forget, maybe not Halloween. Christmas,
18 director of the association; when I have a problem with the 18 that's what it was, a golf outing and Christmas."
19 union, Walter Mack or somebody else, that's who I'm supposed to 19 If you look on page 188, it's exactly what they are
20 reach out for. 20 talking about here in the deposition with Joe Olivieri,
21 That's his job, director of the association. 21 Christmas party and golf outing. That's it.
22 Everybody says that, everybody agrees on it. They can try to 22 When you give the time frame to Jim Murray as I did, I
23 make it sound nefarious. There is nothing wrong with it. 23 said well, in this time frame as Mr. Torrance gives it, during
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the period between the time you first met him and the time you there's no ambiguity in the answers. For them to prove this to
2 started meeting as to delinquencies, right?, how many times did 2 you, they would have to say clearly he is talking about the
you talk to him? present, clearly he is not talking about that time period.
3 I don't know. But, he says, it's not a lot. It's a 3 Forget that he just defined the time period. They would have
couple of times. This is that period of time before Riverdale, to go the reverse, 180 of that, and no, no, no, no, beyond a
4 before flipping the houses. This is the period of time 4 reasonable doubt Joe Olivieri knows he is not talking about
5 Torrance calls him. "How many times did you talk to him?" "I 5 that time period.
6 have no idea." "Can you approximate?" "I can't approximate." 6 Is it silly. It's crazy.
7 Almost exactly what Jim Murray said. He says, I don't know, I 7 He then goes the next page. This is all right in
8 have no idea. They claim that's perjury. 8 sequence of itself. This is not 50 pages later on in the
9 Then Joe gives an answer at the top of 188 from 187, 9 deposition. This is the next page. OK. "See him outside the
10 "He went to golf outings. He might have come by the Christmas 10 association?" "No." "You could have but you don't recall?"
11 party." What did Jim Murray say about that time period and the 11 I'm not a hundred percent sure, I can't, I don't recall.
12 times he saw Joe Olivieri? He went to a golf outing and a 12 Almost exactly, again, what I asked Jim Murray.
13 Christmas party. It's almost as if I had scripted it. I was 13 Other than those two things, did you ever see him
14 shocked that he actually remembered those two. 14 other than that? Maybe, maybe? He said, yeah, maybe, I don't
15 But this isn't my witness. I never spoke to Jim 15 recall. Same thing. Because they are talking about that time
16 Murray today, nor could I. It would be inappropriate. He was 16 period. That's what I said to Jim Murray: A few years after
17 a government witness. They called him. The answers he gives,17 you first started, during that time period, same time period.
18 again either he perjured himself also or he is saying exactly 18 Now, "Did you ever do business with James Murray?"
19 what happened, which is what Joe Olivieri said happened. 19 This is on page 189. "Did you ever do business with James
20 I asked him, I said, "Jim," to Jim Torrance, "if you 20 Murray?" "I never did business with James Murray himself."
21 wanted to ask a question about up to the present, you could 21 This is not later on in the deposition. It's right there.
22 have done that, right?" "Yes." Where did you do that? Did 22 I'm backing into this, but there are two things to say
23 you say -- I defined the time period for you. On 187 and 188, 23 about this. One is we are still talking about the same time
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if you read that yourself, he identifies, and this is the part period. There is at least a reasonable doubt. They can't
2 where Mr. Olivieri explains and he breaks it out for him. 2 prove to you beyond a reasonable doubt we are not talking about
Let's make it simple is what Torrance is doing. the same time period because Mr. Torrance just defined it for
3 "I understand that the first time you met James 3 him.
Murray, right after you became a member, is that right?" Let's address their argument first. These other
4 "Yes." OK, let's establish the beginning. Second. "And then 4 questions, they don't have a lot to say, in my opinion, and
5 in the next few years, he would occasionally come to 5 they don't have anything to say on this. "I never did business
6 association events, golf outings, and the like?" "Yes." "Did 6 with James Murray himself." We are talking about the same time
7 you ever talk to James Murray about that kind of event?" 7 period. Clearly even they would probably agree they didn't.
8 Why did he establish those parameters? Because that 8 Now they say, well, he's cute, because now they don't
9 is the time period he is talking about. I said, You could have 9 want to talk about that time period, they want to talk about
10 said, OK, now let me ask you about to the present. I just 10 the present day. They say clearly he did do business with
11 defined the time period for you, now I'm going to ask you about 11 James Murray in the present. Not what we are talking about,
12 the present. He doesn't do that because he's not interested in 12 but I'm going to address it anyway. As each witness told you,
13 the present. He is not asking questions about that. 13 he didn't do business with James Murray himself. At a
14 However, they need it to be about the present. They 14 deposition, again for perjury, clear question, clear answer,
15 need to ignore the time period. They can't even address the 15 there has to be symmetry. He is saying, I never did business
16 time period. He has nice placards, nice screens that I don't 16 with James Murray.
17 have. How come he doesn't talk to you about the time period? 17 Is there a follow-up question? Wouldn't the natural
18 I opened on it, I crossed on it. I questioned people on it. 18 sequence of a flow, if this is relevant, if this is at all
19 He didn't talk to you about it, because there is no answer. 19 material to what you are talking about, wouldn't the natural
20 Joseph Olivieri is answering the question as given to him. 20 flow be to say -- by the way, I want to say I don't think this
21 Again, this is a perjury prosecution. This is them 21 is a problem for Joe. I think he should get credit, because he
22 getting up and saying, we're going to prove to you beyond a 22 didn't do business with James Murray himself either before, in
23 reasonable doubt. There's no ambiguity in the questions, 23 the time period Torrance is giving him, or after. Yet in the
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deposition he flags it for Mr. Torrance. Riverdale on page 200. I'm sorry. They start asking questions
2 If he was my client, I would have told him just answer 2 on page 196.
no. But instead he flags it and he says, well, no, not with This is a process that occurred in 2004, 2005. Mr.
3 him himself. Right? If that's at all an issue, the question 3 Torrance clearly knows the project exists. That's why he's
that follows up: Well, with who then? What do you mean by not asking questions specifically about Riverdale. Does Joe
4 himself? He is there for the duration. He is there six, seven 4 Olivieri deny doing the excavation? Does Joe Olivieri deny
5 hours. He flagged it, there is no follow-up question, there is 5 being on that project? No.
6 no lie. 6 The claimed perjury that Mr. Lanpher says is his
7 There is certainly no lie beyond a reasonable doubt 7 favorite, there are four questions, one, two, three, four, four
8 that he intended to lie about that. Rather, he is flagging the 8 alleged perjured statements in this section, which is section
9 issue for Mr. Torrance. Not because he has to. Again, they 9 (ix). Each of the four only involved how Mr. Olivieri got to
10 are talking about a time period when they almost had no 10 be at the site, who he spoke to.
11 contact. But yet now he asks did you ever do business with 11 This is important because he's not misstating anything
12 him. It's about that time period, but he feels he needs to 12 about Jim Murray. As Mr. Lanpher told you, he had just been
13 flag the issue. So he does. 13 talking about Jim Murray at length in the deposition. They had
14 What does Mr. Torrance do? No questions. We're good. 14 been discussing Jim Murray. They had been talking contacting
15 Maybe Mr. Torrance knows; I don't know. He does know about the 15 him as an association member -- I mean director. They were
16 Riverdale project and he does know about Jim Murray's 16 going on and on about it.
17 involvement in the Riverdale project. If they wanted to ask 17 Now they say, how did you come to do that work and who
18 him directly a question, they could say, well, did you do that 18 did you speak to? Who was that person? Right? This would be
19 work on the Riverdale project, did Jim Murray have anything to 19 on page 203 probably. Hold on. I'm sorry. Riverdale, the
20 do with financing that? They could have asked. They didn't 20 direct questions start on page 200. Just to orient you, I
21 ask that. He said not with him himself. 21 misspoke, on page 200 line 18 the question is, "Do you know of
22 As far as Jim Murray is concerned, he's flipping these 22 a construction job that was performed at 35-36 Cambridge Avenue
23 houses with Tracy. That's how Jim Murray always does it, 23 in the Bronx?" That kind of does away with any question about
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that's what he is doing here, it's going to be Tracy's name. whether Mr. Torrance knew about this construction project and
2 OK. As far as the Riverdale projects go, those aren't in Jim 2 if he wanted to ask specific questions about it.
Murray's name either. They are not in Joe Olivieri's name. What did they decide to charge Joe with? Nothing on
3 They're just not there. 3 that page, nothing on the next page, nothing on the next page
Jim Murray and On Par were intentionally hidden from about the project.
4 Joe Olivieri. Right? Maybe he knew Jim Murray had some 4 We get to page 203. He has already been talking about
5 contacts with the site, as is their allegation. But did he do 5 Jim Murray. Now they are asking, who was the person that you
6 business with James Murray? Well, no. His contracts were with 6 spoke to about the project and you negotiated with and you
7 somebody else. Flipping the houses, he was told to use Tracy. 7 dealt with? Right? That's the series of questions. He's
8 And if they wanted to ask this question, they could have just 8 talking about Wagner, right? He can't remember Wagner's name.
9 asked this. And that's what you need for a perjury 9 He's not forgetting Jim Murray's name.
10 prosecution: Beyond a reasonable doubt that he lied. 10 Who did he sign the contract with? Wagner. Wagner
11 If they asked him specifically, and this is why this 11 tells you Joe submitted a bid to Wagner. Wagner tells you he
12 is too cute, if they asked him specifically, well, did you ever 12 vetted Joe's business. Wagner tells you he's the one that
13 work on the Riverdale project? This address, this picture, is 13 signed the contract with Joe. OK?
14 that your project? Right? Did you do the excavation? If he 14 This is many years later. Not many years later. A
15 would have said no, no; well, what about one of your companies,15 couple of years later after the project. They are asking Joe,
16 DNO, did they do it? No. OK, that's a perjury prosecution. 16 who is that guy? "I don't remember his name as I sit here."
17 He lied. Clearcut question, and he lied about it. 17 Beyond a reasonable doubt that's perjury? Beyond a reasonable
18 He didn't lie. 18 doubt that he's talking about Jim Murray after he just talked
19 Moreover, they know about that. What do they ask him 19 about Jim Murray all the time? Beyond a reasonable doubt? Not
20 about Riverdale? They asked him questions about Riverdale. 20 even close, ladies and gentlemen.
21 I'm going to jump to that. Mr. Lanpher says this is his 21 If, if, they wanted to establish that my client lied,
22 favorite. I find that hard to believe, this is his favorite. 22 they had to ask him a direct question. Right? Like I said,
23 That was the word he used. He started asking questions about 23 did you do work at that project? No. OK, that's a direct
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question, direct answer, maybe they have a perjury prosecution. ever work on a job site as On Par?" "Not to my knowledge."
2 They don't have that, because it didn't happen. He tells them 2 This is a specific question. "Did your companies that
about the site, tells them about the project. The only thing you owned," I presume he means DNO, because he knows about the
3 he couldn't do, the only thing he can't do, is remember 3 Riverdale project, "work on the same job site as On Par?" Work
Wagner's name. So they are going to prosecute? It's insane. on the same job site as On Par. The only thing they point to
4 Ladies and gentlemen, they are going to get up maybe 4 is Riverdale and flipping houses, right? Well, when you asked
5 on rebuttal and say, oh, that's silly, clearly it was Jim 5 all the witnesses about Riverdale, On Par's not there. They
6 Murray and he didn't want to talk about Jim Murray. One, they 6 are just not.
7 just were talking about Jim Murray for quite a bit. Two, 7 Oh, then they get cute. Well, a bookkeeper was doing
8 somehow you have to divine that beyond a reasonable doubt, and8 some joint bookkeeping. No, that's not On Par working at the
9 you cannot. 9 site. On Par sends a couple of carpenters; that's not On Par
10 If the only person he ever dealt with was Jim Murray 10 working at the site, that's On Par sending a couple of its men
11 and Jim Murray was a known figure in this and Jim Murray was 11 to the site. And by the way, there is no indication anywhere
12 the guy that anybody only spoke to and Jim Murray was who he 12 Joe Olivieri would know that.
13 contracted with, OK, maybe there's something. I don't know. 13 Flipping the houses, same thing. If this is why they
14 But it's so far from that, it's hard to understand. 14 included flipping the houses as part of the conversation, I'm
15 Then he finishes with Jim Murray. Again, they know 15 not even sure why, but if this is what they meant by it, every
16 this project. They don't ask him, hey, Joe, do you know Jim 16 witness testified On Par, On Par the company, was not there
17 Murray was involved in financing? At least they talk about 17 doing it.
18 what Jim Murray was actually doing. 18 Again, I can't even fathom which witness would have
19 Remember, Jim Murray on this project, he was behind 19 put that question as a potential perjury statement, that On Par
20 the scenes, undisclosed. They said he was really controlling 20 and DNO did not work on the same job site. Joe Olivieri did
21 or owning things, but he was not on the paperwork as an owner. 21 not know whether James Murray owned any other companies.
22 They never told Joe that he was an owner. That's what Jim 22 I'm going to mention Burke's Bar. I didn't expect it
23 Murray said and that's what Wagner said. What is he is doing? 23 to be an issue, but I'd feel remiss if I don't mention it. Jim
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He's financing the project. Did you ever tell to Joe Olivieri? Murray says he thinks, he's not sure but he thinks, that bar
2 No. Did they ask that of Joe Olivieri? No. 2 was in his name. Tracy Murray, however, when she testified,
You read this, and again it's not lies. But if there was very clear. Jim Murray, if you recall, she said he
3 is any reasonable doubt that he's talking about Wagner, it's 3 actually gave it to him as a gift. He wanted her to have
not perjury. And there is. They could have asked specific something of her own. Right? I said, what is that Tracy
4 questions. 4 restaurant called? Oh, that's Burke's Bar. So Jim Murray
5 By the way, they know Wagner's name. They could have 5 didn't own that, you owned that? Oh, yes, that's why he made a
6 said, oh, Joe, are you talking about Wagner, Rob Wagner? 6 big show about giving that to me.
7 Right? That could have cleared it up. But they don't do that. 7 Again, not that I know Joe Olivieri would know about
8 They leave it fuzzy. Why did they leave it fuzzy? Who knows. 8 that, but Burke's Bar was discussed. There is a question in
9 Let me come back, because I skipped over. We are 9 here about did Joe Olivieri know that he owned any other
10 almost to Mr. Cooley. This is the last before Mr. Cooley. On 10 companies, and he said, no, how would Joe Olivieri know he
11 page 196, they focused on this I thought at trial, maybe not in 11 owned it when he didn't own it, it was somebody else?
12 total, at the top of page 196 are two alleged perjured 12 Again, ladies and gentlemen, as they are doing the
13 statements. 13 rebuttal as and as you are deliberating, I ask you to remember
14 One is "Do you know if James Murray owns any other 14 why this deposition is being taken. It's not being taken about
15 companies or at any time owned any other company?" "Not to my 15 Burke's Bar, and I don't want to confuse the issue myself.
16 knowledge." That's charged as perjury, and they are asking you16 It's being taken about what Mr. Torrance told you why he is
17 to convict him on that and potentially take away his liberty. 17 taking it.
18 I don't understand what they are talking about. 18 Joe Olivieri's knowledge about Lou Moscatiello or
19 I asked Jim Murray, "Did Joe Olivieri know that you 19 other organized crime figures, Jim Murray is not one of them.
20 had any other companies?" "No." I asked Wagner, "Was On Par 20 Job site corruption, that's the paying cash and doing things
21 doing the construct site in Riverdale. Did you own a different 21 like that by the companies to their members, and they want to
22 company that you talked about?" Same issue on the next one. 22 know about that as a potential remedy for contempt. These
23 "Have any of your companies, the companies that you own, right,23 questions, ladies and gentlemen, have nothing to do with that.
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Maybe some of the deposition did. It did. There is a been previously working?
2 whole host of questions to Mr. Olivieri about the 50-50 rule 2 There is no denial of Joe Olivieri doing an
and the referral system and the request system and even Lou introduction between Jim Murray and Cooley. You don't hear me
3 Moscatiello, which we started with, district council and the 3 standing up here saying that. We didn't cross on it. It's not
funds. Right? But that's not presented to you by the part of the perjury charges. They don't say that he lied about
4 government as perjured statements. You are not asked to decide4 that. They say he lied about whether he knew that Commercial
5 whether Mr. Olivieri should be convicted of those statements, 5 was now working on job sites where On Par had previously been.
6 because he didn't perjure himself. Even the government 6 He says not to my knowledge. They claim that's perjury, let's
7 concedes that because they don't charge him with it. 7 convict him of that.
8 Let's talk about Mr. Cooley. I think I have it 8 So I asked Mr. Cooley, Mr. Cooley, and I almost read
9 starting on page 209. This would be item (x), Roman numeral 9 it word for word, I think I tried, would Joe Olivieri know if
10 (x) in the government's charges of the indictment. Mr. Cooley 10 there ever came a time when Commercial Drywall began working on
11 was an interesting figure because, again, Joe Olivieri didn't 11 sites where On Par had previously been working? What does he
12 perjury himself. But this is a criminal prosecution of Joe 12 say? No, why would Joe Olivieri know that? That's his answer.
13 Olivieri. So what did they bring up? 13 The government just stood up here and said, well, he
14 They bring up things like a secret quiet meeting at a 14 testified honestly. Well, of course he is going to testify
15 graveyard. Sounds bad. That's kind of what movies are made 15 honestly; he has immunity. I think he testified honestly, too.
16 of, right? They ask about it. Did Joe Olivieri know anything 16 He looked at me like why are you asking me? Why would Joe
17 about that, was he privy to any of that, oh, no, nothing to do 17 Olivieri know that? He doesn't know what Joe is charged with.
18 with Joe Olivieri. What were they talking about it for? They 18 He said, why would Joe Olivieri know that?
19 did that with each witness, ladies and gentlemen. 19 Next questions. Again, I have never spoken to Mr.
20 I digress for a minute. Each witness, they call him 20 Cooley. Maybe he is going to give me an answer that would show
21 to the stand. This goes back to the detective. Here is a 21 that Joe did fudge something. But he doesn't. I ask him the
22 detective, they are sitting on top of Lou Moscatiello's place, 22 next one: Would Joe Olivieri know that there ever came a time
23 there are bugs in his place, recording devices, outside 23 when Commercial Drywall hired workers who had previously worked
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recording devices. He has been on Lou Moscatiello for since for On Par? Same thing: Why would Joe know that? Joe
2 years, six years. 2 introduced him, that's it. Right? Joe wouldn't know that.
What did you see? Well, I saw a car drive up that Then I go on. There are three other questions. Same
3 belonged to Joe Olivieri in Pelham pay. That's what you saw? 3 thing. Would Joe know that? No. Joe doesn't get involved in
What year was that? Oh, 2000. Every witness was the same. where the workers go for union workers. Why would he know
4 It's this build-up. You think there is going to be some kind 4 that? Right? Same answers. Same questions, same answers.
5 of climax in terms of some corrupt activity or some lie, 5 Again, it just explains if Joe Olivieri lied about that, Mr.
6 because we are really supposed to be talking about lies, right, 6 Cooley lied about that. Neither one lied about, that because
7 lies that Joe Olivieri said, and then there is nothing. The 7 it doesn't make sense.
8 same for Mr. Cooley. 8 Joe Olivieri wouldn't know, and he wouldn't lie about
9 So there is this secret meeting. Boy, they run 9 it. He gave the answer. In fact, he even explains. At one
10 through a light, they go to a graveyard, and this all sounds 10 point they said, do you know where the workers would have gone.
11 terrible. Did Joe Olivieri know anything about that? No. 11 And he said, I don't get involved in that, that's not what I
12 Participate in that? No. Anything to do with the perjury? 12 do. He does a lot. He is very busy as the association
13 Was he asked questions about that? Did he perjury himself 13 director, but that's not what he does. That's what Mr. Cooley
14 about that? No, no. It's got nothing to do with it. Why were 14 told you. That's what he does. Why would he know that? He
15 we talking about that? I don't know. Mr. Olivieri did 15 looked at me like I was nuts.
16 something bad? I don't know. 16 Then I had to close the circle, as I stated earlier.
17 You didn't have the indictment front of you at the 17 I said, well, for that introduction, they call it -- again,
18 time, but I'm trying to figure out, well, let me ask Mr. Cooley 18 let's make it nefarious, he's a broker. What does a broker
19 the same questions that I did with Jim Murray that Joe Olivieri 19 imply? Some give-and-take, money back and forth. I asked Mr.
20 is charged with. So I asked Mr. Cooley, would Joe Olivieri 20 Cooley, well, he introduced you, right? He is director of a
21 know, right -- if we look at the first one, it's on page 209, 21 large association, he knows a lot of people, he knows Mr.
22 they ask Joe Olivieri, do you know if there ever came a time 22 Cooley forever, at this point in time he knows Jim Murray.
23 when Commercial Drywall began working on sites where On Par23 Well, did he introduce you? Sure. There was this one
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Page 1074 Page 1076
time at the IHOP, right? We met and we were introduced and team together, but I got to look at the case. I got to look at
2 that was, and they left part way through the meeting. Did he 2 people like Greaney and some of the background on them. I got
ever receive anything for that from you, Mr. Cooley? No. Did to look at Forde and some of the background on them, and to see
3 he ever ask you for anything from that? No. I asked Jim 3 the craziness that was going on.
Murray the same question: Did he ever receive anything or ask Then you have him. He stands as kind of like a light
4 you anything? No, no, no. 4 on the side doing his job, not taking money from anybody, doing
5 Ladies and gentlemen, all of those questions are not 5 a job as director. You didn't hear a bad word about him. Did
6 relevant to what Mr. Torrance told you he was doing, to what 6 he do his job inappropriately? Did he take money? Did he do
7 Mr. Torrance thought was relevant. And certainly they haven't 7 anything illegal? No.
8 proven to you beyond a reasonable doubt that they were 8 Yet they are here asking you to find him guilty, to
9 relevant. 9 convict him, to potentially take away his liberty. It's not
10 But it's a step further than that. They are not lies. 10 fair. It's not right. I can't stop it, ladies and gentlemen.
11 He answered the question. He's supposed to answer the 11 The only people that can stop it are you, and I ask you to do
12 question. He had counsel, Ms. Bonsignore, who told you she 12 that. I ask that when this case is given to you, you return a
13 directed him what the subject of the deposition was. I don't 13 verdict of not guilty. I'm confident you will.
14 remember if she said that she directed him that you answer only14 Thank you.
15 the specific questions that are given -- 15 MS. ZORNBERG: Your Honor, can we request a bathroom
16 MS. ZORNBERG: Objection. 16 break?
17 THE COURT: Sustained. 17 THE COURT: Two minutes. If any member of the jury
18 MR. GARDNER: He is supposed to answer the questions 18 wishes to go, you may.
19 that are given, listen to the questions, and answer them. Any 19 (Recess)
20 one of us, ladies and gentlemen, could have been in this 20 THE COURT: Ms. Zornberg.
21 position, given a deposition, listening to the question, the 21 MS. ZORNBERG: Thank you, Judge.
22 lawyer telling us to listen to the exact question that we are 22 Good morning. Ladies and gentlemen, for the last hour
23 asked and give an exact answer to that. 23 we have listened to defense counsel as he tries to confuse and
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1 0arroli3 Summation - Mr. Gardner 1 0arroli3 Summation - Ms. Zornberg
Each of these, ladies and gentlemen again, is not distract you from what is totally obvious, that Joseph Olivieri
2 material. Not only are they not material, again, they focus on 2 walked into his deposition with a premeditated plan to lie and
the not material questions. They put before you the not that he executed that plan.
3 material questions. 3 Why does defense counsel now try to confuse you by
I'm going to end with Lou Moscatiello again. Did they twisting the transcript, by really asking you to throw out your
4 put before you the questions about the district council and the 4 common sense? Because the perjury is so obvious. It was
5 funds? No. They put before you a general question, a 5 obvious that Louis Moscatiello was this man's mob boss.
6 background question, about what did you do when you saw him 6 Two months before Joseph Olivieri was put in as a
7 three, four years ago, what did you talk about? How are 7 trustee of the district council benefit funds, where was he?
8 things, how is the family, how's business. It seems like a 8 He was threatening Joseph Rizzuto with a world of hurt on
9 pretty natural flow of the conversation. Indict him for that, 9 behalf of the mob. Two months after Joseph Olivieri was made a
10 send him away? No. 10 benefit funds trustee, where was he? He was sitting at a
11 Ladies and gentlemen, let me make sure I didn't miss 11 restaurant in a bar with Louis Moscatiello reporting on the
12 anything. 12 funds and taking orders from Moscatiello: Call Forde, jobs for
13 Again, ladies and gentlemen, I think actually Ms. 13 cash.
14 Zornberg will stand up and do the rebuttal. I asked you at the 14 Joseph Olivieri had no intention of walking into his
15 beginning, the government and I both asked you, bring your 15 deposition and admitting that? He had a premeditated plan to
16 common sense. When you read the transcript, when you read the 16 lie. What was the plan? He thought about, I'm going to go in
17 indictment, bring your common sense. Are these lies? Are they 17 there, I'm going to say I know Moscatiello from the
18 material lies? Are they something Joe Olivieri should be 18 neighborhood, it was casual, it's like running into a guy at
19 convicted of and his liberty be taken away? 19 the bagel store, hey, how are you. That was his plan and
20 Ladies and gentlemen, I have gotten to know Joe over 20 that's how he executed it.
21 the years. I have gotten to know his friends, I have gotten to 21 Same thing with Jim Murray. Those two men were in bed
22 know his family. I appreciate him as a friend. Not only do 22 together. Joseph Olivieri got a $730,000 check from Jim Murray
23 his niece and my daughter swim on the same competitive swim 23 handed to him. I wish someone would hand me a check for that
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1 0arroli3 Summation - Ms. Zornberg 1 0arroli3 Summation - Ms. Zornberg
much. That's a lot of money. Jim Murray gave him over a cross-examination with AUSA Torrance. He did it again in his
2 million dollars in job contracts when his excavation company 2 closing. He wants you to stop. Look at the very next
had no work. Did you ever have a company with no work? question.
3 MR. GARDNER: Objection. 3 "And by that I mean at any time during the time you
THE COURT: Sustained. knew him" -- what kind of time frame argument is this? This is
4 MS. ZORNBERG: And someone give you job contracts? 4 nonsense. The very next question, "And by that I mean any time
5 That's a lot of money. Mr. Olivieri had no intention of 5 during the time you knew him, you never" --
6 walking into his deposition and admitting that he was in bed 6 MR. GARDNER: Objection, your Honor.
7 with Jim Murray. He was asked over a hundred questions about 7 THE COURT: Overruled.
8 his relationship with Jim Murray. Read the transcript. Over a 8 MR. GARDNER: I withdraw it.
9 hundred questions. Not once does he come forward, in response9 MS. ZORNBERG:
10 to a hundred questions by the Department of Justice, to admit, 10 "A. I don't recollect ever making a meeting with him."
11 to acknowledge, that he got a $730,000 check from the man. No. 11 Ladies and gentlemen, both of these answers, both at
12 What is his premeditated plan to lie, Joe Olivieri's 12 the bottom of 168 and at the top of 169, both of those are the
13 premeditated plan to lie at that disposition? That he is going 13 charged perjury in the indictment. It's section (ii). I'll
14 to go in there and he is going to claim, I'm just doing my job 14 pull it out here. You will see what is charged here. The
15 as a Wall & Ceiling head, I only know this man Jim Murray from 15 government charges both answers. It carries over. It's both.
16 the Wall & Ceiling Association, from meeting him a couple of 16 It's the bottom of 168, the top of 169.
17 times. That's his plan to lie, and he executes it. 17 So this whole notion that there was some time period
18 Why does defense counsel now try to confuse you, try 18 set for questioning about Moscatiello, it's a red herring.
19 to accuse the questions of being unclear? Because the perjury 19 This is a creation, a creation of defense counsel to try to
20 is so obvious. 20 confuse you because the perjury evidence is so strong.
21 Let's turn to page 6, if you could, of your deposition 21 And you know that this is completely false: "I never
22 transcript. At the very beginning of this deposition, on line 22 made arrangements to see him." Ask yourselves. You sat here
23 11, what is one of the first things Mr. Torrance tells Joseph 23 and watched Joseph Rizzuto on the stand. You are the jury.
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Olivieri? That's your job. You watch the witnesses; you look at their
2 "Q. At any time if you don't understand my question, please ask 2 demeanor; you ask, does what they are telling you make sense,
me, please tell me that, and I will clarify it. Otherwise, does it hang together, does it have a ring of truth?
3 again, I will assume you have understood the question. Is that 3 When Joseph Rizzuto told you that he was threatened by
clear? Joseph Olivieri, he was pressured to put a mob guy into his
4 "A. Yes." 4 union and he tried to refuse, he tried to withstand it, and
5 Now, ladies and gentlemen, during this trial how many 5 then Joseph Olivieri picked him up in a car, drove him to the
6 times have you seen witnesses on the stand be asked a question 6 secret hotel near LaGuardia Airport, brings him to a hotel
7 and say, I'm sorry, I don't understand, can you repeat that. 7 room, a locked hotel room where he is patted down, did you see
8 It happens all the time. It didn't happen here. Joseph 8 anything in Joseph Rizzuto's demeanor that indicated that he
9 Olivieri didn't say, I don't understand any of these questions. 9 was not telling exactly what happened?
10 He wasn't confused. He was purposefully lying to hide his mob 10 And on cross-examination defense counsel tried to say,
11 ties, to hide his corruption. 11 Mr. Moscatiello could have called you himself, he didn't need
12 Now let's address his whole time period argument. 12 Joe Olivieri for that. Mr. Rizzuto sat there and said, I've
13 It's like a red herring. Defense counsel argues, well, none of 13 been in this industry four years, that's not how it works. The
14 the answers given about Louis Moscatiello are false, because 14 boss of the Genovese crime family doesn't come reach out to
15 they all related to some particular time period. Let's take a 15 you. They use messengers. Joseph Olivieri was the messenger.
16 look at that. Let's look at page 167, at the very bottom. I'm 16 Joseph Olivieri picked me up, brought me to that meeting with
17 sorry. Page 168. The whole series of questions starts on 167. 17 Moscatiello, told me who to put into Local 14.
18 But 168 at the very bottom, line 21. 18 If you believe Joseph Rizzuto, you're done. You need
19 "Besides seeing him, Louis Moscatiello, around the 19 one out of 25 false statements to convict. There's one.
20 neighborhood, did you ever have a relationship where you would20 If you believe Agent Conlon, who told you how he took
21 make arrangements to see him? 21 notes -- and you saw the notes of Joseph Olivieri meeting with
22 "A. No, I never made arrangements to see him." 22 Louis Moscatiello: Call Mike Forde, call the district council,
23 Mr. Gardner wants you to stop there. He did it during 23 I don't want to meet with anyone -- if you believe Agent Conlon
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Page 1082 Page 1084
is telling the truth, you know this is false, you know this is involvement in an audit going back to 2003 or 2002, he could
2 perjury. 1 out of 25, enough to convict. 2 show what a narrow time frame these questions related to. The
Defense counsel then tries to pull the same stunt. fact is there was no audit. Jim Murray was repeatedly asked
3 Let me just be clear. Defense counsel has no 3 this. He said, no, I never reached out to Joe Olivieri for
obligation to make any arguments at all. The burden is not on involvement in an audit.
4 the defense. The burden is on the government at all times to 4 When those audits happened, I handled them myself. I
5 prove the case beyond a reasonable doubt. We welcome that 5 went down with my payroll clerk, we sat around a table at the
6 burden, and that burden is met here. 6 funds. Joe Olivieri wasn't ever there. I didn't call The Wall
7 But when the defense lawyer tries to make arguments to 7 & Ceiling Association for that. The first time I asked Joseph
8 confuse you, then you've got to look at them. You've got to 8 Olivieri for any help was when I got the Mack subpoena, when
9 see if they hold water. And here they just don't. 9 Mack was threatening to shut me down. That's much later, 2005.
10 Let's look at the tortured reading of the transcript 10 So this whole time frame/audit defense is nonsense?
11 that defense counsel suggests regarding Jim Murray. He spent a 11 If there was evidence that Joseph Olivieri was involved in any
12 lot of his closing saying, oh, the time period of Jim Murray, 12 audit, you would have seen the evidence. We would have put it
13 AUSA Torrance set a time period, and if he wanted to ask 13 in front of you. Defense counsel could have, too.
14 questions outside of that time period about Jim Murray, he 14 MR. GARDNER: Objection, your Honor.
15 could have done it. It is a complete torturing of the record. 15 MS. ZORNBERG: It doesn't exist.
16 If you recall, on page 185, why don't you turn to page 16 THE COURT: Sustained.
17 185, here is what is going on. The government asks over a 17 MS. ZORNBERG: Let me be clear. Defense has no
18 hundred questions of Joseph Olivieri to try to inquire what his 18 obligation to put any evidence before you. He can do nothing.
19 relationship is with Jim Murray. Never once does he mention a 19 The burden is on us. But the point is you saw so many records
20 check for three quarters of a million dollars. Never once does 20 in this case relating to On Par. Stuart GraBois took the
21 he mention he did business, he flipped houses, he gave him job 21 stand, the head of the funds. He talked to you about the whole
22 contracts, he solicited money for a pizza joint, he brought him 22 history of audits with On Par. There is not a shred of
23 to a hydrogen lab, they went to look at a gravel business. 23 evidence, zero, zero, of Joseph Olivieri's involvement in an
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None of them. A hundred questions, not a single shred of the audit.
2 actual truth comes out of Joseph Olivieri's mouth on this. 2 For defense counsel now to try to use Olivieri's own
It is Joseph Olivieri on page 185 who tries, as part lie from the deposition to try to confuse you and distract you
3 of his premeditated plan to plan to lie, who tries to set up 3 about these questions is nonsense. Don't buy it.
this false time frame. He is asked a very basic question: There was nothing confusing about the questions.
4 When was the last time you talked to Jim Murray? That's line 4 Let's take a look at one. Number 5 in the indictment, let's
5 14. He answers, two to three years ago. The government says, 5 put that back up. This is part of the series of a hundred
6 well, what did you discuss? 6 questions of trying to get at the truth of the relationship.
7 Here at line 18, this is Joseph Olivieri, who needs a 7 What's your relationship with James Murray?
8 cover story, this is his plan. He's going to couch everything 8 I don't have a relationship.
9 in terms of I did legitimate dealings with Jim Murray as head 9 All right, he wants to argue does "is" mean is. But
10 of the Wall & Ceiling Association. This is his plan. 10 look at how it continues.
11 How does he answer? He answers falsely. Answers 11 This is following up. This is the government trying,
12 falsely. He sets the false time frame. He goes, the last time 12 as part of the hundred questions, to follow up on Joseph
13 I met with him it was about an audit. He had a delinquency on 13 Olivieri's time frame, which is a lie. Did you ever meet with
14 an audit and he was coming in to talk about it. 14 him? He came to a couple of meetings. Did you ever discuss
15 Now, this really kills me. There is not a shred of 15 business with him? How's business? How are you doing? I'm
16 evidence in the record, not a shred, that Joseph Olivieri was 16 busy.
17 involved in any On Par audit. None. Defense counsel thought 17 This is complete cover-up. He doesn't want to
18 this was his golden ticket -- 18 discuss, doesn't want to acknowledge any of the discussions
19 MR. GARDNER: Objection, your Honor. 19 about the job sites, the Yonkers properties, the $730,000.
20 MS. ZORNBERG: Maybe if he could show that there was 20 Did you ever arrange specifically to meet with James
21 an audit sometime in -- 21 Murray? What's confusing about that question? "Ever" means
22 THE COURT: Objection overruled. 22 ever. Did you ever arrange specifically to meet with him?
23 MS. ZORNBERG: Maybe if he could show there really was23 Answer: No.
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1 0arroli3 Summation - Ms. Zornberg 1 0ardoli4 Rebuttal - Ms. Zornberg
Let me tick off some of the evidence that you have "A I don't recall seeing Jimmy there."
2 heard about the dozens of arranged meetings in person between 2 This is part of the context. You've heard about the
Jim Murray and Joseph Olivieri in 2004 and 2005, meetings at dozens of meetings that they had at or surrounding the
3 the Cambridge site, meetings at the Oxford site, meetings about 3 Cambridge job site. What does he say? No, I don't recall that
the garden wall, meetings about the misplaced elevator pit, either.
4 meetings at On Par's offices where Joseph Olivieri went to pick 4 Now, let me address defense counsel's other arguments.
5 up his check, meetings to look at the Yonkers properties that 5 This is what I call the ostrich argument: I didn't do anything
6 they flipped, meetings to see the houses that Jim Murray had 6 wrong. I didn't know anything. My head was in the sand. I
7 flipped, the meeting at the IHOP, meetings on Riverdale Avenue 7 didn't see. I wasn't told. I didn't know. I didn't know that
8 as to show him the Mack subpoena, meetings outside the 8 Jim Murray was really behind the Cambridge and Oxford sites.
9 Bronxville train station, meetings at the hydrogen plant, 9 It is -- it really -- it really doesn't hold water.
10 meeting at Murray's farm. 10 You know, one of the witnesses I found most interesting was
11 But when he is asked, did you ever arrange 11 John Bloeser. Do you remember him? He was a short -- he
12 specifically to meet with James Murray, there is an 12 wasn't on the stand very long. He was the project manager for
13 uncategorical answer: No, he says. That's a blatant lie. You 13 the Cambridge job site. He is just a guy. He has got no stake
14 only need one 1 of 25 to convict. 1. 14 in this case. He has no ties to Jim Murray or to Joseph
15 Let me quickly address defense counsel's suggestion to 15 Olivieri. In fact, he told you, he quit the job. He left the
16 you that if it wasn't in the indictment, it has to be true. 16 job at Cambridge after a year because he wasn't getting along
17 That's not the law, and that's not the facts. 17 with Jim Murray.
18 (Continued on next page) 18 He has no stake. And when he was asked, was On Par on
19 19 that job site, he didn't even hesitate, he said, yeah, On Par
20 20 was on the Cambridge job site. Jim Murray is On Par.
21 21 MR. GARDNER: Objection, your Honor.
22 22 THE COURT: Overruled.
23 23 MS. ZORNBERG: On Par's bookkeeper did the work. On
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1 0ardoli4 Rebuttal - Ms. Zornberg 1 0ardoli4 Rebuttal - Ms. Zornberg
MS. ZORNBERG: You, the jury, can look through and Par's contract carpenters came to the site. On Par's chief
2 read this whole deposition, and there are other questions and 2 estimator was the front man, Michael Bookle.
answers that are going to jump out at you that are false. So it gives you a sense of reality when you ask
3 MR. GARDNER: Objection, Judge. 3 someone like John Bloeser, who literally is a guy with personal
THE COURT: Sustained. knowledge but with no stake in any of the proceedings going on
4 MS. ZORNBERG: Ladies and gentlemen, it is your right, 4 here, and when he was asked, was On Par on the site, he said
5 and I expect the Judge will instruct you, that when you look at 5 yes.
6 the deposition transcript and look at the charged statements, 6 And Robert Wagner, their witness, confirmed it was Jim
7 you are to consider the totality of the evidence, including 7 Murray who recommended Olivieri, who wanted Olivieri to bid on
8 everything in the deposition transcript you can consider to 8 the job. You know what Rob Wagner said? Yeah, it was Jim
9 make up your mind as to whether Mr. Olivieri was lying or 9 Murray's money. We gave him tremendous latitude.
10 telling the truth. 10 Jim Murray hired Joseph Olivieri for that site. And
11 Look at page 203 of your transcript, line 23. 11 yet, and yet in Section 9 of the Indictment, when he's asked
12 MR. GARDNER: Objection, your Honor. I have an 12 about the Cambridge job site, Olivieri, he can't remember. He
13 objection. Counsel is asking them to make decisions about 13 can't remember how he came to work on the site. It must have
14 things that aren't in the Indictment. 14 been someone in the neighborhood, he told them.
15 THE COURT: Overruled. That is not what I understand 15 Now, let me turn to another absurd defense, the Tracy
16 the argument to be. 16 Murray defense. I love this one. This is an attempt to
17 MS. ZORNBERG: Yes. I will move on in a moment. 17 confuse you, but I don't think it could confuse my
18 "Q Did you ever see James Murray on that job site" -- 18 seven-year-old son.
19 This is the Cambridge job site. 19 Why don't you turn to page 188 of the Indictment --
20 MR. GARDNER: Objection. 20 I'm sorry, of the deposition. Again, this is part of the 100
21 THE COURT: Overruled. 21 questions, the 100 questions to try to get at the truth.
22 MS. ZORNBERG: -- "or near that job site at the time, 22 Starting at the bottom of 188, line 24:
23 around the time you were doing that work? 23 "Q Did you ever talk to James Murray outside of that kind of
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Page 1090 Page 1092
event?" of these business deals because my name wasn't on the
2 And then he specifies: 2 documents, you would have laughed him out of court.
"Outside of an association event or a party? MR. GARDNER: Objection, Judge.
3 "A Yes, I could have saw -- I could have seen him at something 3 MS. ZORNBERG: It would have been insulting --
else. THE COURT: Overruled.
4 "Q You could have, but do you recall if you did? 4 MS. ZORNBERG: -- to your intelligence and it is
5 "A I'm not a hundred percent sure. No, I can't recall. I 5 insulting -- it is insulting for defense counsel to suggest
6 don't recall. 6 that this is a true statement: "I never did business with
7 "Q Did you ever do business with James Murray? 7 James Murray himself."
8 "A I never did business with James Murray himself." 8 Look at the $730,000 check that was handed, personally
9 First of all, this whole notion, I'm not a hundred 9 handed by James Murray to Joseph Olivieri. Whose name is on
10 percent sure, if you -- if you -- I mean, the phone records, no 10 that check? Jim Murray's name.
11 one could deny those phone records. You'll have that exhibit 11 Who sent On Par workers to renovate the Yonkers
12 in evidence. That is a stack. There are 387 calls between 12 properties? Jim Murray. Who hired Joseph Olivieri to do the
13 those men in a two-year period. They're calling each other an 13 excavation work on those projects? Jim Murray.
14 average of every other day. But did he see him? How often 14 Now, let's turn now to Mr. Gardner's argument about
15 does he speak to him? I'm not a hundred percent sure if I ever 15 Commercial Drywall, and I would ask that the jurors turn to
16 saw him outside the association. I can't remember, I really 16 page 209 of the transcript.
17 can't remember if I spoke to him more than twice. 17 Now, this is number 10. I will put it up as well.
18 And then we get to the question: Did you ever do 18 Commercial Drywall. This is when On Par is desperate.
19 business with James Murray? 19 Jim Murray is desperate. He's on the verge of being shut down,
20 Ladies and gentlemen, is there anything unclear about 20 and he runs to the guy who is in his pocket and who has
21 that question? Did you ever do business with James Murray? 21 influence -- Joe Olivieri.
22 How more broadly could the government ask that question? And22 MR. GARDNER: Objection, your Honor.
23 it's one of a hundred. How more broadly could they ask it? 23 MS. ZORNBERG: And he says --
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Answer: "I never did business with James Murray THE COURT: Sustained.
2 himself." 2 MS. ZORNBERG: And he says to Mr. Olivieri, I need a
Mr. Olivieri was not confused about what that question company -- I need a company to take over my jobs from On Par.
3 meant. And if he was confused, he certainly could have asked 3 It can't be just any company. It has to be a Wall & Ceiling
for clarification, and he didn't. Instead, he responded with a company. Why? So I can continue using the 50 -- the request
4 strong, unconditional false denial. 4 system and hire 100 percent of my own men. And it has to be a
5 Should Mr. Torrance, if he heard the word himself, 5 company that's in someone else's name.
6 could he have, should he have asked, followed up? Maybe. 6 Jim Murray testified, that's his conversation with
7 Maybe there was a missed opportunity. But it doesn't change 7 Olivieri. It is clear as day that the whole purpose of this is
8 the answer: "I never did business with James Murray himself." 8 to get a company that he can transfer On Par's jobs to.
9 How does that make the answer true if he would have gone on to 9 And what does Mr. Olivieri do? He finds Commercial
10 say I never did business with James Murray himself, I did 10 Drywall. And he sets up a meeting at the I-Hop between Larry
11 business with his wife, or did business with his brother? It 11 Cooley and James Murray with him present.
12 doesn't change the falsity of him saying I never did business 12 So here's the questions: "Do you know if there ever
13 with James Murray himself. And that is utterly false. 13 came a time when Commercial Drywall began working on sites
14 Utterly. 14 where On Par had previously been working?
15 And it's a ridiculous claim that Joseph Olivieri, this 15 "Not to my knowledge.
16 mobbed-up Benefit Funds trustee -- 16 "Do you know if there ever came a time that Commercial
17 MR. GARDNER: Objection, your Honor. Objection. 17 Drywall hired workers who had previously worked for On Par?
18 THE COURT: Sustained. 18 "I didn't get involved.
19 MS. ZORNBERG: -- was actually doing business deals 19 "But besides whether you were involved, do you know
20 with Tracy Murray, a homemaker, while she is raising three 20 from any source?
21 young kids? 21 "No. I have no idea.
22 Let me ask you, if Jim Murray had taken the stand and 22 "Did you arrange or facilitate in any way the transfer
23 testified and said, you know, I really wasn't involved in any 23 of either business or workers from On Par to Commercial
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Page 1094 Page 1096
Drywall? MS. ZORNBERG: Your Honor, the demonstrative --
2 "Did I? 2 THE COURT: This is going beyond his arguments.
"Yeah. Yeah. You. Yeah. Yeah. MR. GARDNER: It is rebuttal.
3 Answer: "No, I never did." 3 THE COURT: Right.
Now, I got to tell you, this is like Joseph Olivieri MR. GARDNER: I ask counsel to take it down.
4 did not just set up the date between Jim Murray and Larry 4 MS. ZORNBERG: I'll take it down. And I have just a
5 Cooley, he went on the date. He chaperoned the date. He was 5 few more minutes and then I'll --
6 there at the I-Hop meeting. 6 THE COURT: You had two minutes and that was three
7 And even Larry Cooley, Mr. Olivieri's good friend, 7 minutes ago.
8 told you he didn't just introduce them and walk out. He was 8 MS. ZORNBERG: Your Honor, just I ask a little leeway.
9 there. And it was clear from the getgo that the whole purpose 9 Mr. Lanpher was less than an hour.
10 was to arrange for Commercial Drywall to take over On Par's 10 THE COURT: All right. Two more minutes.
11 unfinished jobs. 11 MS. ZORNBERG: OK.
12 THE COURT: Ms. Zornberg, you have a couple of more 12 In 2007, ladies and gentlemen, what was going on were
13 minutes. 13 a lot of issues. The union wanted to terminate the Consent
14 MS. ZORNBERG: OK. Thank you, your Honor. 14 Decree and throw it out. They claimed there was no corruption
15 Let me turn now to the materiality element. 15 left. They claim there were issues pending before Judge Haight
16 First of all, Mr. Gardner suggested in passing that 16 about whether the request system promoted corruption, about
17 the questions the government asked of Joseph Olivieri were 17 whether the independent investigator was being aggressive
18 irrelevant, they were somehow outside the scope of Judge 18 enough.
19 Haight's order. 19 Ladies and gentlemen, while all these fights were
20 Let me just point out to you. Mr. Olivieri had 20 going on in the civil RICO case to get the Department of
21 counsel there, who did not object once, not once, to any 21 Justice out, there was a cesspool in the union. And
22 question that was asked about Mr. Olivieri's relationship with 22 Mr. Olivieri was part of it. It was a cesspool with Michael
23 Jim Murray or with Lou Moscatiello. Not a single objection. 23 Forde, with John Greaney, with Joseph Olivieri, with others at
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Page 1095 Page 1097
No matter how fought over this deposition was, if the Wall & Ceiling Association, with business agents. The
2 there were questions asked that were considered irrelevant, 2 government didn't know. The Court didn't know. And
beyond the scope, you could be sure they would have been Mr. Olivieri was part of the coverup.
3 objected to. 3 They acted -- all of them acted like they were the
MR. GARDNER: Objection, your Honor. clean house with the white picket fence while trying to hide
4 MS. ZORNBERG: No one raised anything in that civil 4 the fact that under that white picket fence and right under
5 RICO case. So that's your best evidence right there that it 5 that nice-looking house was a cesspool of corruption and
6 was within the scope of that order. 6 organized crime influence. And the whole dynamic when he's
7 But, you know, the legal standard, the legal standard 7 deposed is that the government is trying to figure out if they
8 for relevance has nothing -- you don't have to find that the 8 can uncover the cesspool, and Olivieri is fighting as hard as
9 questions -- 9 he can to keep it buried.
10 MR. GARDNER: Objection, your Honor. 10 MR. GARDNER: Objection, your Honor.
11 THE COURT: Sustained. Sustained. 11 THE COURT: All right. Sustained.
12 MS. ZORNBERG: All right. 12 MS. ZORNBERG: Defense counsel stood before you today
13 As I expect the Judge to instruct you, the materiality 13 and in the beginning of the trial and he told you that this
14 standard, that prong that the government has to prove, that 14 case was outrageous. Well, now, ladies and gentlemen, you've
15 looks to whether the answers that Mr. Olivieri gave, if he had 15 heard the evidence. What's outrageous is that Joseph Olivieri
16 been truthful, would have been material to the civil RICO case. 16 paraded around as an honest Benefit Funds trustee when he was
17 Now, let me show you what is going on in the civil 17 reporting to a mobster --
18 RICO case in 2007. 18 MR. GARDNER: Objection, your Honor.
19 MR. GARDNER: Objection, your Honor. 19 MS. ZORNBERG: -- and lining his own pockets.
20 THE COURT: All right. 20 THE COURT: Sustained.
21 MR. GARDNER: Rebuttal. She continues to draw -- 21 MS. ZORNBERG: What's outrageous -- could you put up
22 THE COURT: Ms. Zornberg, I am sustaining the 22 Government Exhibit 304 -- is that in 2006, when Mr. Murray was
23 objection because it is going well beyond. 23 in Ireland, when Joseph Olivieri thought he could get away with
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Page 1098 Page 1100
1 0ardoli4 Rebuttal - Ms. Zornberg 1 0ardoli4
this, he voted for the "bad boy" clause, a clause to strip the (Jury not present)
2 little guys -- 2 THE COURT: Thank you. Let me just get back to one
MR. GARDNER: Objection, your Honor. matter we left open this morning concerning the instructions,
3 MS. ZORNBERG: -- the rank and file workers -- 3 and that was the government's proposal of the instruction that
THE COURT: Sustained. was at the bottom of 27 and the top of 28. The defendant
4 Ms. Zornberg, I'm calling a close to your argument. 4 raised some concerns and objections.
5 MS. ZORNBERG: Your Honor, just one moment, please. 5 I am going to allow the instruction to remain but I am
6 THE COURT: No. No more one more moments. 6 making some revisions.
7 MS. ZORNBERG: Your Honor, can I please -- 7 In the sentence on the top of page 28 that begins, "It
8 THE COURT: Say goodbye to the jury. 8 is for you, the jury," the next sentence will read: "It is for
9 MS. ZORNBERG: Ladies and gentlemen, real people were 9 you, the jury, to decide whether or not the defendant made a
10 hurt by Mr. Olivieri's actions -- 10 false statement when he asserted a lack of recollection or lack
11 MR. GARDNER: Your Honor, objection. 11 of knowledge in response to any question relevant to the issues
12 THE COURT: Sustained. All right. 12 under inquiry. In making this determination, you should
13 MS. ZORNBERG: OK. 13 consider all of the evidence, including, for example, the
14 THE COURT: You may sit, Ms. Zornberg. 14 relevant things the defendant said or did or admitted to doing
15 MS. ZORNBERG: Your Honor, one more moment, please. 15 or to saying, or to do."
16 THE COURT: You may sit, Ms. Zornberg. 16 Anyway, that is the modification I am making,
17 MS. ZORNBERG: May I have 30 more seconds, your Honor? 17 otherwise the charge would be as proposed.
18 THE COURT: No. You may sit. 18 MR. GARDNER: Your Honor, I would ask if the Court
19 MS. ZORNBERG: Thank you. 19 would consider where it says "whether he made a false
20 THE COURT: All right. Closing arguments are over. I 20 statement," if you would insert the word "knowingly false
21 am going to break for the lunch break. It is 12:20. We will 21 statement." I don't think we should leave in there "a false
22 return at 1:30, and at that point the Court will give you 22 statement."
23 instructions. 23 THE COURT: A knowing false statement.
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Page 1099 Page 1101
1 0ardoli4 1 0ardoli4
The fact that the government has closed and the MR. GARDNER: OK.
2 defendant has also closed with arguments does not mean that you 2 THE COURT: All right?
are free to begin any deliberations or to have any contact of So, thank you. We'll see you at 1:30.
3 any kind with anyone related to this case during the lunch 3 (Luncheon recess)
break. Make sure that you adhere to that instruction.
4 You are not free to deliberate until after the 4
5 instructions are given to you, beginning at 1:30. 5
6 Thank you. 6
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Page 1102 Page 1104
1 0ardoli4 Charge 1 0ardoli4 Charge
AFTERNOON SESSION either heard or formed a view of the law relevant to this case
2 1:32 p.m. 2 other than that now described to you by the Court in these
(Jury not present) instructions, you are not to discuss it with your fellow jurors
3 THE COURT: Be seated. 3 during any part of the case or during your deliberations. This
Call in the jury, please. is very important.
4 (Jury present) 4 You should not single out any one instruction as
5 CHARGE OF THE COURT 5 definitively stating the law alone, but you must consider my
6 THE COURT: Thank you. Be seated. 6 instructions as a whole when you retire to deliberate in the
7 Ladies and gentlemen, good afternoon and welcome back. 7 jury room.
8 Before you begin your deliberations, I am going to give you 8 You must not -- any of you -- be concerned with the
9 instructions on the law. You must pay close attention, and I 9 wisdom of any rule that I state. Regardless of any opinion
10 will be as clear as possible. 10 that you may have as to what the law may be -- or ought to
11 I take this opportunity to advise everyone in the 11 be -- it would violate your sworn duty to base your verdict
12 courtroom that while I instruct the jury, the courtroom will be 12 upon any view of the law other than that which I give you.
13 locked and no one will be permitted to enter or leave the 13 As members of the jury, you are the sole and exclusive
14 courtroom until I have concluded all my instructions to the 14 judges of the facts. You pass judgment upon the evidence. You
15 jury. So if you have any other business that you must attend 15 determine the credibility of the witnesses. You resolve such
16 to, or you do not wish to sit through the next hour of the 16 conflict as there may be in the testimony. You draw whatever
17 Court's instructions, you may leave the courtroom at this 17 reasonable inferences you decide to draw from the facts as you
18 point. 18 have determined them.
19 (Pause) 19 I shall later discuss with you how to pass upon the
20 It has been obvious to me and to counsel that until 20 credibility -- or believability -- of the witnesses.
21 now you have been faithfully discharging your duty to listen 21 In determining the facts, you must rely upon your own
22 carefully and to observe each witness who testified. Your 22 recollection of the evidence. What the lawyers and the
23 interest never flagged, and you have followed the testimony 23 defendant -- what the lawyers have said in their opening
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Page 1103 Page 1105
with close attention. I ask you now to give me that same statements, in their closing arguments, in their objections, or
2 careful attention as I instruct you on the law. 2 in their questions is not evidence. Nor is anything that I may
Listening to these instructions may not be easy. It have said during the trial or may say during these instructions
3 is important, however, that you listen carefully and 3 with respect to a fact matter to be taken in substitution of
concentrate. I ask you to be patient and to pay attention. your own independent recollection. What I say in this regard
4 Now, you will have copies of the instructions that I'm 4 is not evidence.
5 giving you in the jury room, so you need not take notes as that 5 The evidence before you consists of the answers given
6 might distract you from listening carefully. You have now just 6 by the witnesses -- the testimony they gave, as you recall
7 to listen carefully and concentrate on what I am saying. 7 it -- and the exhibits that were received in evidence. The
8 You have heard all of the evidence in the case, as 8 evidence does not include the questions posed by the lawyers.
9 well as the final arguments of the government and the 9 Only the answers are evidence. But you may not consider any
10 defendant. My duty at this point is to instruct you on the 10 answer that I directed you to disregard or that I directed be
11 law. It is your duty to accept these instructions on the law 11 struck from the record. Do not consider such answers.
12 and apply them to the facts as you determine them, just as it 12 In determining the facts, no one may invade your
13 has been my duty to preside over the trial and decide what 13 province or function as jurors. In order for you to determine
14 testimony and evidence is relevant under the law for your 14 the facts, you must rely upon your own recollection of the
15 consideration. 15 evidence.
16 On these legal matters, you must take the law as I 16 I have not expressed nor have I intended to suggest
17 give it to you. If any attorney has stated a legal principle 17 any opinion as to which witnesses are or are not worthy of
18 different from any that I state to you in these instructions, 18 belief, what facts have or have not been established or what
19 it is my instructions that you must follow. You must consider 19 inference or inferences should be drawn from the evidence. If
20 the law only as I instruct you, and you must disregard any 20 any expression of mine has seemed to indicate an opinion
21 contrary opinion of the relevant law that may be expressed by 21 relating to any of these matters, I instruct you to disregard
22 anyone else, including members of your panel. You are all 22 it. You are, I repeat, the exclusive and sole judges of all
23 instructed that if, by whatever means or authority, you have 23 the questions of fact submitted to you and of the credibility
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Page 1106 Page 1108
of the witnesses. are satisfied that the government has proven him guilty beyond
2 Your authority, however, is not to be exercised 2 a reasonable doubt.
arbitrarily; it must be exercised with good judgment, sound The defendant begins the trial here with a clean
3 discretion, and in accordance with the rules of law which I 3 slate. This presumption of innocence alone is sufficient to
give you. acquit a defendant unless you as jurors are unanimously
4 You are reminded that you took an oath to render 4 convinced beyond a reasonable doubt of his guilt, after careful
5 judgment impartially and fairly, and not to be swayed by 5 and impartial consideration of all of the evidence in the case.
6 prejudice, sympathy, or fear, and to be guided solely by the 6 A defendant has the right to remain silent and never has to
7 evidence in the case and the applicable law. You must fulfill 7 prove innocence or present any evidence. If the government
8 your oath in order to reach a just and true verdict. 8 fails to sustain its burden, you must find the defendant not
9 You are to perform the duty of finding the facts 9 guilty.
10 without bias or prejudice as to any party. You are to perform 10 The presumption of innocence was with the defendant
11 your final duty in an attitude of complete fairness and 11 when the trial began and remains with him even now as I speak
12 impartiality. 12 to you and will continue with the defendant into your
13 The fact that the prosecution is brought in the name 13 deliberations unless and until you are convinced that the
14 of the United States of America entitles the government to no 14 government has proven his guilt beyond a reasonable doubt.
15 greater consideration than that accorded to any other party to 15 I have said that the government must prove the
16 a litigation. By the same token, it is entitled to no less 16 defendant guilty beyond a reasonable doubt. The question
17 consideration. All parties, whether the government or 17 naturally is: What is a reasonable doubt? The words almost
18 individuals, stand as equals at the bar of justice. 18 define themselves. It is a doubt based upon reason and common
19 The question before you can never be: Will the 19 sense. It is a doubt that a reasonable person has after
20 government win or lose the case? The government always wins20 carefully weighing all of the evidence. It may arise from the
21 when justice is done, regardless of whether the verdict is 21 evidence, the lack of evidence, or the nature of the evidence.
22 guilty or not guilty. 22 It is a doubt which would cause a reasonable person to hesitate
23 Before I instruct you on the specific issue or issues 23 to act in a matter of importance in his or her personal life.
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Page 1107 Page 1109
that you must decide, I want to define for you the standard by Proof beyond a reasonable doubt must, therefore, be proof of
2 which you will decide whether the government has met its burden2 such a convincing character that a reasonable person would not
of proof on a particular issue. hesitate to rely and act upon it in the most important of his
3 This is a criminal case, and as such the government 3 or her own affairs. A reasonable doubt is not a caprice or
has the burden of proving each of the elements of each of the whim; it is not a speculation or suspicion. It is not an
4 charges or each of the elements of the charge against the 4 excuse to avoid the performance of an unpleasant duty. And it
5 defendant beyond a reasonable doubt. 5 is not sympathy.
6 Although the defendant has been indicted, you must 6 In a criminal case, the burden is at all times upon
7 remember that an Indictment is only an accusation. It is not 7 the government to prove guilt beyond a reasonable doubt. The
8 evidence. The defendant has pleaded not guilty to that 8 law does not require that the government prove guilt beyond all
9 Indictment. 9 possible doubt; proof beyond a reasonable doubt is sufficient
10 As a result of the defendant's plea of not guilty, the 10 to convict. This burden never shifts to the defendant, which
11 burden is on the prosecution to prove guilt beyond a reasonable 11 means that it is always the government's burden to prove each
12 doubt. This burden never shifts to the defendant for the 12 of the elements of the crime charged beyond a reasonable doubt.
13 simple reason that the law never imposes upon a defendant in a13 If after fair and impartial consideration of all of
14 criminal case the burden or duty of calling any witness or 14 the evidence you are satisfied of the defendant's guilt beyond
15 producing any evidence. 15 a reasonable doubt, you must vote to convict. On the other
16 It is the cardinal principle of our system of justice 16 hand, if after fair and impartial consideration of all of the
17 that every person accused of a crime is presumed to be innocent17 evidence you have a reasonable doubt as to the guilt of the
18 unless and until his guilt is established beyond a reasonable 18 defendant, it is your duty, and you must, acquit the defendant.
19 doubt. The presumption is not a mere formality; it is a matter 19 In making your determination of the facts in this
20 of the utmost substance. 20 case, your judgment must be applied only to that which is
21 Therefore, instruct you that the defendant, Joseph 21 properly in evidence.
22 Olivieri, is to be presumed by you to be innocent throughout 22 I will now remind you of the preliminary instructions
23 your deliberations until such time, if ever, that you as a jury 23 I gave you at the start of the trial as to what you should
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Page 1110 Page 1112
consider as evidence from which you are to decide what the conjecture or any guesswork about the nature or effect of any
2 facts are. The evidence in this case consists of the sworn 2 discussions between the Court and counsel held out of your
testimony of witnesses, on both direct and cross-examination, hearing or presence.
3 regardless of who called the witnesses; and the documents, 3 It is the duty of the attorneys on each side of the
stipulations, and exhibits, as well as the matters of judicial case to object when the other side offers testimony or evidence
4 notice, which have been admitted into evidence. 4 which the attorneys believe is not properly admissible.
5 Again, nothing else is evidence -- not what the 5 Counsel also have the right and the duty to ask the Court to
6 lawyers say, and not what I say, and not anything you heard 6 make rulings of law and to request conferences at the sidebar
7 outside of the courtroom. 7 out of the hearing of the jury.
8 As I previously instructed, evidence is the witnesses' 8 Those questions must be decided by the Court. You
9 answers to the questions put to them, and not the questions 9 should not show any prejudice against an attorney or his or her
10 themselves. Argument of counsel, no matter how passionate 10 client because the attorney has objected to the admissibility
11 their appeal, are not evidence, although you may give 11 of evidence, or asked for a conference out of the hearing of
12 consideration to those arguments in making up your mind as to 12 the jury or asked the Court for a ruling of law.
13 what inferences to draw from the facts which are in evidence. 13 You recall also that in my preliminary instructions I
14 What the lawyers have said to you in their opening 14 described two kinds of evidence: Direct and circumstantial.
15 statements and in their closing arguments is not evidence. The 15 Direct evidence is when a witness testifies about
16 closing arguments are designed to present to you what the 16 something he knows by virtue of his own senses -- something
17 parties believe that the evidence has shown and what inferences17 that he or she has seen, felt, touched, or heard.
18 they believe may be drawn from the evidence. If your 18 Circumstantial evidence is evidence which tends to
19 recollection of the facts differs from the lawyers' statements, 19 prove a disputed fact by proof of other facts. You infer on
20 it is your recollection which controls. Similarly, the 20 the basis of reason and experience and common sense from one
21 lawyers' characterizations or characterization of the 21 established fact the existence or nonexistence of some other
22 witnesses' testimony and assessments of credibility is not 22 fact. If someone walked into the courtroom wearing a raincoat
23 evidence. Only your own evaluation of the testimony and the 23 covered with drops of water and carrying a wet umbrella, that
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Page 1111 Page 1113
credibility should influence your deliberations. would be circumstantial evidence from which you could conclude
2 You should only consider exhibits that have been 2 that it was raining.
admitted into evidence. Exhibits marked for identification but Circumstantial evidence is of no less value than
3 not admitted are not evidence, nor are materials brought forth 3 direct evidence; it is a general rule of law that the law makes
only to refresh the recollection of any witnesses. You cannot no distinction between direct and circumstantial evidence, but
4 consider or speculate as to the content of any exhibit not 4 simply requires that before convicting a defendant, the jury
5 received in evidence. 5 must be satisfied of the defendant's guilt beyond a reasonable
6 Similarly, you are to disregard any testimony when I 6 doubt from all of the evidence in the case.
7 have ordered that it be stricken. As I indicated before, only 7 During the trial, you may have heard me or one of the
8 the witnesses' answers are evidence and you are not to consider 8 attorneys use the term "inference." Inferences are deductions
9 a question as evidence. 9 or conclusions which you, the jury, reach, using reason, logic
10 From time to time, the Court has been called upon to 10 and common sense, based on the facts which have been
11 pass upon the admissibility of certain evidence, although I 11 established by the evidence in the case.
12 have tried to do so -- insofar as it was practicable -- out of 12 You may draw from the facts that you find have been
13 your hearing. You should not be concerned with the reasons for13 proved such reasonable inferences as seem justified in light of
14 any such rulings, and you are not to draw any inferences from 14 your experience. However, you should not treat your power to
15 them. Whether offered evidence is admissible is purely a 15 draw reasonable inferences as permission to indulge in
16 question of law in the province of the Court and outside the 16 conjecture, speculation or guesswork. Every inference relied
17 province of the jury. 17 upon by the jury should be based on the evidence in the case
18 In admitting evidence to which an objection has been 18 and drawn on the basis of reason, logic and common experience.
19 made, the Court does not determine what weight should be given19 Now, some of the exhibits in the case were charts.
20 to such evidence, nor does it pass on the credibility of the 20 These charts were introduced basically as summaries. They are
21 evidence. Of course, you are required to dismiss from your 21 a visual representation of information or data as set forth
22 mind completely any evidence which has been ruled out of the 22 either in the testimony of a witness or in some documents.
23 case by the Court, and you must refrain from speculation or 23 They are not in and of themselves any evidence; rather, they
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Page 1114 Page 1116
are intended to be of assistance to you in your deliberations. witnesses. Everything a witness said or did on the witness
2 In presenting the evidence which you have heard, it is 2 stand counts in your determination. Did the witness appear --
often easier and more convenient to utilize summary charts than how did the witness appear? What was the witness' demeanor
3 to place all of the relevant document in front of you. It is 3 while testifying? Often it is not what people say but how they
up to you to decide whether those charts fairly and correctly say it that moves us.
4 present the information in the testimony and the documents. 4 When considering the credibility of each witness, you
5 The charts are not to be considered by you as direct proof of 5 may consider whether the witness is disposed to favor or
6 anything. They are merely graphic demonstrations of what the 6 disfavor one party or the other. Bias, prejudice or
7 underlying testimony and documents are. 7 retaliatory motive may affect the witness' perception or
8 We have, among the exhibits received in evidence, some 8 recollection of events. It is important to bear the motive of
9 documents or items that are redacted. "Redacted" means that 9 a witness in mind when determining how much weight to give to
10 part of the document or item was taken out. You are to concern 10 his or her testimony.
11 yourself only with the part of the item that has been admitted 11 Inconsistencies or discrepancies in the testimony of a
12 into evidence. You should not consider any possible reason why12 witness, or between the testimony of different witnesses, may
13 the other part of it has been deleted. 13 or may not cause you to discredit such testimony. Two or more
14 You must, therefore, regardless of your personal 14 persons witnessing an incident or a transaction or
15 opinions, give this evidence full consideration along with all 15 participating in the same conversation or meeting may see or
16 of the evidence in the case in determining whether the 16 hear it differently. Innocent failure of recollection is a
17 government has proven the defendant's guilt beyond a reasonable17 common experience. In weighing the effect of a discrepancy,
18 doubt. 18 always consider whether it pertains to a matter of importance
19 The government has offered evidence tending to show 19 or an unimportant detail. Ask yourselves whether the
20 that on a different occasion the defendant engaged in other 20 discrepancy results from an innocent error, honest confusion,
21 potentially unlawful conduct. In that connection, let me 21 or intentional falsehood, and that may depend on whether it has
22 remind you that the defendant is not on trial for committing 22 to do with an important fact or with only a small detail.
23 acts not alleged in the Indictment. You may not consider this 23 After making your own judgment, you will give the testimony of
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evidence as proof that the defendant has a criminal personality each witness such weight, if any, as you may think it deserves.
2 or bad character. The evidence of the other potentially 2 You may accept or reject the testimony of any witness in whole
unlawful acts was admitted for the more limited purposes of or in part.
3 showing intent, knowledge, motive, preparation, plan, and 3 In other words, what you must try to do in deciding
absence of mistake or accident, and you may consider it only credibility is to size the witness up in light of his or her
4 for those limited purposes. Evidence of these acts may not be 4 demeanor, the explanations given, and all of the other evidence
5 considered by you for any other purpose. Specifically, you may 5 in the case. Always remember that you should use your common
6 not use this evidence to conclude that because the defendant 6 sense, your good judgment, and your life experience.
7 committed the other act or acts, the defendant must also have 7 The fact that one party called more witnesses and
8 committed the act charged in the Indictment. 8 introduced more evidence than the other does not mean that you
9 You have had the opportunity to observe all the 9 should necessarily find the facts in favor of the side offering
10 witnesses. It is now your job to decide how believable each 10 the most witnesses. By the same token, you do not have to
11 witness was in his or her testimony. You are the sole judges 11 accept the testimony of any witness who has not been
12 of the credibility of each witness and of the importance of his 12 contradicted or impeached if you find the witness not to be
13 or her testimony. 13 credible.
14 In determining where the truth lies, you should use 14 You also have to decide which witnesses to believe and
15 all the tests for truthfulness that I mentioned to you 15 which facts are true. To do this you must look at all of the
16 earlier -- those that you would use in determining matters of 16 evidence, drawing upon your own common sense and personal
17 importance to you in your everyday life. 17 experience.
18 You may -- you should consider the opportunity the 18 After examining all the evidence, you may decide that
19 witnesses had to see, hear, and know the things about which 19 the party calling the most witnesses has not persuaded you
20 they testified, the accuracy of their memory, their candor or 20 because you do not believe its witnesses, or because you do not
21 lack of candor, their intelligence, the reasonableness and 21 believe the fewer witnesses -- or because you do believe the
22 probability of its corroboration or lack of corroboration with 22 fewer witnesses called by the other side.
23 other believable testimony and evidence. You watched the 23 Keep in mind that the burden of proof is always on the
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Page 1118 Page 1120
government, and the defendant is not required to call any witness without such consultations.
2 witnesses or offer any evidence, since he is presumed to be 2 Again, I remind you that the weight you give to the
innocent. fact of a witness' preparation for his or her testimony and
3 In evaluating credibility of the witnesses, you should 3 what inferences you draw from such preparation are matters
take into account any evidence that any witness who testified completely within your discretion.
4 may benefit in some way from the outcome of this case. Such an4 There are several persons whose names you may have
5 interest in the outcome creates a motive to testify falsely and 5 heard during the course of the trial who had personal knowledge
6 may sway a witness to testify in a way that advances his or her 6 of or direct involvement in the events of this case but who did
7 own interests. Therefore, if you find that any witness whose 7 not appear here to testify. I instruct you that each party had
8 testimony you are considering may have an interest in the 8 an equal opportunity or lack of opportunity to call any of
9 outcome of this trial, then you should bear that factor in mind 9 these witnesses. However, I remind you again that a defendant
10 when evaluating the credibility of his or her testimony. You 10 in a criminal case has no obligation to present witnesses.
11 should not disregard or disbelieve that testimony simply 11 Therefore, you should not draw any inferences or reach any
12 because the witness has such an interest, but if you accept it, 12 conclusions as to what they would have testified to had they
13 you should do so with great care. 13 been called. Their absence should not affect your judgment in
14 This is not to suggest that every witness who has an 14 any way. Similarly, you should not draw any inferences,
15 interest in the outcome of a case will testify falsely. It is 15 favorable or unfavorable, because there were other individuals
16 for you to decide to what extent, if at all, a witness' 16 involved in some of the acts at issue here but who were not
17 interest has affected or colored his or her testimony. 17 named as defendants in the Indictment.
18 You know, of course, that the defendant, Mr. Olivieri, 18 Your verdict must be based solely upon the evidence
19 did not testify in this case. Under our Constitution, a 19 developed at trial, or the lack of evidence. It would be
20 defendant has no obligation to testify or to present any 20 improper for you to consider, in reaching your decision as to
21 evidence, because it is the government's burden to prove the 21 whether the government has sustained its burden of proof, any
22 defendant guilty beyond a reasonable doubt. That burden 22 personal feelings you may have about the defendant's race,
23 remains with the government throughout the entire trial and 23 religion, national origin, sex, or age. Similarly, it would be
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Page 1119 Page 1121
never shifts to a defendant. A defendant is never required to improper for you to consider any personal feelings you may have
2 prove a thing. 2 about the race, religion, national origin, sex, or age of any
You may not attach any significance to the fact that other witness or anyone else involved in this case. The
3 Mr. Olivieri did not testify. No adverse inference against him 3 defendant is entitled to a trial free from prejudice, and our
may be drawn by you because he did not take the witness stand. judicial system cannot work unless you reach your verdict
4 You may not consider this against Mr. Olivieri in any way in 4 through a fair and impartial consideration of the evidence.
5 your deliberations in the jury room. 5 It would be equally improper for you to allow any
6 You have also heard the testimony of law enforcement 6 feelings you might have about the nature of the crime charged
7 officials. The fact that a witness may be employed by the 7 to interfere with your decision-making process.
8 government as a law enforcement official does not mean that his 8 To repeat, your verdict must be based exclusively upon
9 testimony is necessarily deserving of more or less 9 the evidence or the lack of evidence in the case.
10 consideration or greater or less weight than that of any 10 Under your oath as jurors, you are not to be swayed by
11 ordinary witness. 11 sympathy. You are to be guided solely by the evidence in this
12 At the same time, it is quite legitimate for the 12 case. And the crucial question that you must ask yourselves as
13 defendant to try to attack the credibility of a law enforcement 13 you sift through the evidence is: Has the government proven
14 witness on the ground that his testimony may be colored by a 14 the guilt of the defendant beyond a reasonable tout?
15 personal or professional interest in the outcome of the case. 15 It is for you alone to decide whether the government
16 You have heard evidence during the trial that 16 has proven that the defendant is guilty of the crime charged
17 witnesses have discussed the facts of the case and their 17 solely on the basis of the evidence and subject to the law as I
18 testimony beforehand with the lawyers. Although you may 18 charge you. It must be clear to you that once you let fear or
19 consider that fact when you are evaluating a witness' 19 prejudice or bias or sympathy interfere with your thinking,
20 credibility, note that there is nothing unusual or improper 20 there is a risk that you will not arrive at a true and just
21 about a witness meeting with lawyers before testifying so that 21 verdict.
22 the witness can be aware of the subjects he will be questioned 22 Therefore, if you find that the government has met its
23 about. In fact, it would be unusual for a lawyer to call a 23 burden of proving the defendant's guilt beyond a reasonable
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doubt, you should not hesitate because of these or any other Civil 5722 -- the case that has been referred to during the
2 reason to render a verdict of guilty. But on the other hand, 2 trial as "the Civil RICO case."
if you have a reasonable doubt as to the defendant's guilt, you The defendant has denied that he is guilty of the
3 should not hesitate for any reason to find a verdict of 3 charge against him. The defendant is not charged with
acquittal. committing any crime other than the offense contained in the
4 The question of possible punishment of the defendant, 4 Indictment. You are to return a verdict only as to the charge
5 if found guilty, is of no concern to the jury and should not, 5 contained in the Indictment.
6 in any sense, enter into or influence your deliberations. The 6 If you conclude that other persons might have been
7 duty of imposing a sentence rests exclusively upon the Court. 7 involved in the criminal act charged in the Indictment, you may
8 Your function is to weigh the evidence in the case and to 8 not draw any inference, favorable or unfavorable, towards the
9 determine whether or not the defendant is guilty beyond a 9 government or the defendant from the fact that certain other
10 reasonable doubt solely upon the basis of the evidence. Upon 10 persons were not named as defendants in the Indictment or are
11 your oath as jurors, you cannot allow a consideration of the 11 not present at this trial.
12 punishment which may be imposed upon the defendant, if 12 In addition, you should not speculate as to the
13 convicted, to influence your verdict in any way or in any sense 13 reasons that individuals other than the defendant are not
14 to enter into your deliberations. 14 present at this trial. Those matters are wholly outside of
15 As you are considering the charge in the Indictment, 15 your concern and have no bearing on your function as jurors in
16 let me instruct you that it does not matter if a specific event 16 this trial.
17 is alleged to have occurred on or about a certain date and the 17 As I stated, the one count in the Indictment charges
18 testimony or other evidence indicates that in fact it occurred 18 the defendant with committing perjury in a December 18, 2007
19 on another date. The law requires a substantial similarity 19 deposition in the RICO case, in violation of Section 1623 of
20 between the dates alleged in the Indictment and the dates 20 Title 18 of the United States Code.
21 established by the testimony. 21 Perjury is the willful giving of false testimony,
22 With these instructions in mind, let us turn to the 22 before a competent tribunal while under oath, with knowledge
23 charge against the defendant as contained in the Indictment. 23 that the testimony is false as to a material matter.
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Page 1123 Page 1125
I remind you again that the Indictment itself is not "Competent tribunals" include courts of law and other
2 evidence. It merely describes the charge made by the 2 components of the judicial system, and extend to
government. It is an accusation. It gives the defendant court-authorized proceedings to take testimony by deposition.
3 notice of the charge against him, and it informs the Court and 3 In order to sustain its burden of proof with respect
the public of the nature of the accusations. But it does not to a perjury charge, the government must prove beyond a
4 create any presumption nor permit any inference that 4 reasonable doubt each of the follow elements:
5 Mr. Olivieri is guilty. You therefore should give no weight at 5 First, the government must prove that the testimony
6 all to the fact that an Indictment has been returned against 6 was given while the defendant was under oath.
7 this defendant. By entering a plea of not guilty, the 7 Second, the government must prove that such testimony
8 defendant has denied the essential elements of the charge 8 was false as set forth in the Indictment.
9 against him. It is the government's burden to prove each of 9 Third, the government must prove that the questions in
10 those elements beyond a reasonable doubt. 10 response to which the government charges the defendant gave
11 In reaching your determination of whether the 11 false testimony were material to the issues under inquiry by
12 government has proved the defendant's guilt beyond a reasonable12 the Court in the proceeding in which the deposition was given.
13 doubt, you may consider only the evidence introduced, or the 13 Fourth, the government must prove that such false
14 lack of evidence. 14 testimony was given knowingly.
15 Here, the Indictment contains one count. You have 15 Each of these elements must be satisfied beyond a
16 been provided with a copy of the Indictment. Therefore, I will 16 reasonable doubt.
17 not read the entire Indictment to you at this time. Instead, I 17 Now, let me elaborate on each of the four basic
18 will summarize in general terms the offense charged in the 18 elements. The first elements is self-explanatory.
19 Indictment. Then I will explain in detail the elements of the 19 In order to satisfy the second element, the government
20 offense. 20 must prove that an answer given by the defendant in his
21 The Indictment charges that the defendant, Joseph 21 deposition testimony as set forth in the Indictment was false,
22 Olivieri, was committing perjury in a December 18, 2007 22 in whole or in part. An answer to a question is false when it
23 deposition in the United States v. District Council, Docket 90 23 is contrary to the facts; that is, when it is not true. The
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Page 1126 Page 1128
truth or falsity of an answer must be determined by the facts words to that effect. It is for you, the jury, to decide
2 existing at the time the answer was made. 2 whether or not the defendant made a knowing false statement
The charge contains answers given by the defendant when he asserted a lack of recollection or lack of knowledge in
3 reciting more than one fact. It is not necessary that the 3 response to any questions relevant to the issues under inquiry.
government prove that each of these factual statements is In making this determination, you should consider all of the
4 false. The government satisfies its burden of proving falsity 4 evidence, including, for example, the relevant things the
5 if it proves beyond a reasonable doubt that any of the factual 5 defendant said or did or omitted to say or do; any proof of the
6 statements made by the defendant, as recited in the count 6 objective falsity of the statements; whether the defendant had
7 charged, is false. 7 a motive to lie; and any other facts you find relevant to the
8 However -- and this is important -- you may not find 8 issue of whether the defendant knew the things he claimed not
9 the defendant guilty unless you all agree, unanimously, that at 9 to know, or recalled the things he claimed not to recall.
10 least one particular answer among the defendant's statements 10 The third element that the government must establish
11 that the Indictment charges were perjured is false. It is not 11 beyond a reasonable doubt is that the matters as to which it is
12 enough that some but not all of you believe that some answer 12 charged that the defendant made false statement were material
13 given by the defendant is false. That is, you cannot find the 13 to the issues under inquiry in the RICO case.
14 defendant guilty if some but not all of you find that only -- 14 A false statement is material if it has a natural
15 (Pause) 15 tendency to influence, or is capable of influencing, any
16 Let me start again. 16 relevant decision made or to be made by the decision-making
17 That is, you cannot find the defendant guilty if some 17 body to which the statement is addressed. To find that the
18 but not all of you find that an answer is false and the rest of 18 alleged false testimony was material in this respect, you need
19 you find that only -- I'm sorry. Let me start again. 19 not find that it did in fact influence any relevant decision of
20 That is, you cannot find the defendant guilty if some 20 the Court overseeing the case. You need only find that it was
21 but not all of you find that only answer A is false and the 21 capable of influencing that decision.
22 rest of you find that only answer B is false. You must all 22 You may find that a false statement is material if a
23 agree that the defendant made at least one specific statement 23 truthful answer might reasonably be calculated to lead to the
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Page 1127 Page 1129
that all of you believe is false. To find the defendant discovery of evidence admissible at the trial of the underlying
2 guilty, you must unanimously find that at least one of the 2 suit. Conversely, you may also find that a false statement is
statements alleged to be perjured in the Indictment was false. not material if it concerns a matter that is not reasonably
3 If you should find that a particular question was 3 calculated to lead to the discovery of evidence admissible at
ambiguous -- that is, subject to more than one the trial of the underlying suit.
4 interpretation -- and that the defendant truthfully answered 4 The final element that the government must prove
5 one reasonable interpretation of the question under the 5 beyond a reasonable doubt is that the defendant gave those
6 circumstances presented, then such answer would not be false. 6 false answers knowingly. That is, the government must prove
7 Similarly, if you should find that the question was clear but 7 that at the time the answers were given, the defendant knew and
8 the answer was ambiguous, and one reasonable interpretation of 8 believed that his answers were false and that he purposely or
9 such answer would be truthful, then such answer would not be 9 intentionally gave the false answers. In other words, you must
10 false. 10 find that the defendant intended to lie.
11 In deciding whether the defendant's answers were 11 The requirement that you find that the defendant acted
12 false, the answers must be given their natural meaning in the 12 knowingly means that you may not find the defendant guilty of
13 context in which the words are used. If you find that an 13 perjury simply because the defendant gave testimony which is
14 answer given by the defendant was literally true, but 14 factually incorrect. You may consider whether the defendant
15 unresponsive to the question asked, you may not find that 15 gave incorrect testimony unintentionally because of good faith
16 answer false or convict the defendant because of it. As long 16 reasons, such as an honest mistake of facts, accident, anxiety,
17 as a statement, or a reasonable interpretation of a statement, 17 confusion, haste, oversight or carelessness, that are
18 is narrowly or literally true, then there can be no conviction 18 inconsistent with knowing and intentional falsity. If the
19 for perjury. This is so even if you find that the answer was 19 defendant made an erroneous and incorrect statement for a good
20 intentionally misleading. 20 faith reason, or due to a slip of the tongue or bad memory or
21 A number of the statements charged in the Indictment 21 through misunderstanding, the defendant would not be guilty of
22 as being perjured are statement in which the defendant answered22 making the false statement knowingly.
23 by stating that he did not recall, did not have knowledge, or 23 Your decision whether the defendant acted knowingly in
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Page 1130 Page 1132
making any statements you find to be false involves a decision The foreperson will send out any notes and, when the jury has
2 about the defendant's state of mind at the time the statements 2 reached a verdict, he will notify the marshal that the jury has
were made. As I have already explained, it is obviously reached a verdict.
3 impossible to ascertain or prove directly what the operation of 3 The government, to prevail, must prove the essential
the defendant's mind was. But while you cannot look into a elements by the required degree of proof, as already explained
4 person's mind to see what his state of mind is or was, the 4 in these instructions. If it succeeds, your verdict should be
5 totality of the facts and circumstances shown by the evidence 5 guilty; if it fails, it should be not guilty. To report a
6 in the case may enable you to draw reasonable inferences as to 6 verdict, it must be unanimous.
7 what the defendant's state of mind was at the time he gave the 7 Your function is to weigh the evidence in the case and
8 testimony in question. In sum, you may well rely in part on 8 determine whether or not the defendant is guilty, solely upon
9 circumstantial evidence in determining the defendant's state of 9 the basis of such evidence.
10 mind. 10 Each juror is entitled to his or her opinion; each
11 Proof of the circumstances surrounding the defendant's 11 should, however, exchange views with his or her fellow jurors.
12 actions can supply an adequate basis for a finding that the 12 That is the very purpose of jury deliberations -- to discuss
13 defendant acted knowingly. The actions of an individual must 13 and consider the evidence; to listen to the arguments of fellow
14 be set in their time and place. The meaning of a particular 14 jurors; to present your individual views; to consult with one
15 act may depend upon the circumstances surrounding it. Thus, 15 another; and to reach an agreement based solely and wholly on
16 you may consider evidence which you recall and believe about 16 the evidence -- if you can do so without violence to your
17 the defendant's actual knowledge of certain facts and 17 individual judgment.
18 occurrences, as compared to the testimony he gave about these18 Each of you must decide the case for yourself after
19 facts and occurrences; the extent to which statements were made 19 consideration with your fellow jurors of the evidence in the
20 to conceal fact or events; and, in general, the manner in which 20 case, but in the course of your deliberations, you should not
21 certain actions were undertaken by the defendant and by others 21 hesitate to reexamine your views and change an opinion if you
22 with his knowledge. 22 are convinced it is erroneous.
23 In evaluating the defendant's state of mind, you may 23 However, if after careful consideration of all the
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Page 1131 Page 1133
also consider whether defendant had a motive to lie or to evidence and the arguments of your fellow jurors, you entertain
2 conceal the truth, that is, anything to gain or lose from 2 a conscientious view that differs from the others, you are not
testifying falsely. Although the government is not required to to yield your conviction simply because you are outnumbered.
3 prove the existence of such a motive, or what any such motive 3 Your final vote must reflect your conscientious
may have been, if you do find evidence of a relevant motive, conviction as to how the issues should be decided. Your
4 that may help you decide what the defendant's state of mind 4 verdict, whether guilty or not guilty, must be unanimous.
5 was. 5 When you are in the jury room, listen to each other
6 I have now outlined for you the rules of law 6 and discuss the evidence and issues in the case among
7 applicable to this case and the processes by which you weigh 7 yourselves. It is the duty of each of you, as jurors, to
8 the evidence and determine the fact. The most important part 8 consult with one another, and to deliberate with a view to
9 of this case, members of the jury, is the part that you as 9 reaching agreement on a verdict, if you can do so without
10 jurors are now about to play as you deliberate on the issues of 10 violating your individual judgment and your conscience. Every
11 fact. 11 juror should be heard. No one juror should hold center stage
12 I know you will try the issues that have been 12 in the jury room, and no one juror should control or monopolize
13 presented to you according to the oath that you have taken as 13 the deliberations.
14 jurors. In that oath you promised that you would well and 14 To reach a verdict, again, all of you must agree, but
15 truly try the issues in this case and a true verdict render. 15 you must not surrender your honest convictions for the mere
16 In a few minutes, you will retire to the jury room for 16 purpose of returning a verdict or solely because of the opinion
17 your deliberations. In this courtroom, it is customary for 17 of other jurors.
18 Juror No. 1, the juror seated in the chair closest to the 18 I will give you a verdict sheet to be filled out -- or
19 judge's bench, to be the foreperson. That is Keith Martin. So 19 to be filled in by the jury. No inference is to be drawn from
20 that your deliberations may proceed in an orderly fashion, you 20 the way the verdict sheet is worded as to what the answer
21 must have a foreperson, but, of course, his vote is entitled to 21 should be. The questions are not to be taken as an indication
22 no greater weight than that of any other juror. The foreperson 22 that I have an opinion as to how they should be answered.
23 has no greater voice or authority than that of any other juror. 23 Before the jury attempts to answer any question, you
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Page 1134 Page 1136
are to read the entire verdict sheet and make sure that favor, without fear, and without sympathy or prejudice.
2 everybody understands each question. Before you answer the 2 I thank you for your attention and attentiveness.
questions, you should deliberate in the jury room and discuss MR. GARDNER: Your Honor, I have one issue.
3 the evidence that relates to the questions you must answer. 3 THE COURT: Will counsel please approach.
When you have considered the questions thoroughly, and the (Continued on next page)
4 evidence that relates to those questions, record your answers 4
5 on the verdict sheet that I will give you. Remember, all 5
6 answers must be agreed upon by all of you. 6
7 Now, ladies and gentlemen, you are about to go into 7
8 the jury room and begin your deliberations. All of the 8
9 exhibits will be given to you at the start of the 9
10 deliberations. If you want any of the testimony read, you must 10
11 also request that. 11
12 Please remember that while we do have a daily written 12
13 transcript available, if you ask for testimony, the reporter 13
14 must search through his or her notes and the lawyers for the 14
15 government and the defendant must agree on what portions of the15
16 testimony may be called for, and if they disagree, I must 16
17 resolve those disagreements. That can be a time-consuming 17
18 process. So please try to be as specific as you possibly can 18
19 in requesting portions of the testimony, if you do so. 19
20 Your requests for testimony -- in fact, any 20
21 communication with the Court -- should be made to me in 21
22 writing, signed by your foreperson, and given to one of the 22
23 marshals. In any event, do not tell me or anyone else how the 23
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Page 1135 Page 1137
jury stands on any issue until after a verdict is reached. (At the sidebar)
2 When you make a request and the foreperson signs it, 2 MR. GARDNER: Thank you, Judge.
please indicate the date and the time on the note. The one issue I have is -- I didn't realize it -- the
3 I repeat, I am sending a copy of the Indictment into 3 Indictment is going to the jury -- and this was related to one
the jury room for you to have during your deliberations. You of my objections before when we were doing the charge
4 may use it to read the crime which the defendant is charged 4 conference -- it says, "Including the following underlined
5 with committing. But, again, you are reminded that an 5 testimony." The question -- it doesn't "include," it is the
6 indictment is merely an accusation and it is not to be used by 6 following underlined testimony.
7 you as any proof of the conduct charged. 7 I would ask, Judge, that on this I objected and you
8 Finally, I say this not because I think it is 8 sustained it. Ms. Zornberg asked them to look at other parts
9 necessary but because it is the custom in this courthouse. You 9 of the deposition and find him guilty as to a different
10 should treat each other with courtesy and respect during your 10 statement that is not charged in the Indictment.
11 deliberations. 11 Also, this was the subject of motion practice. We
12 After you have reached a verdict, your foreperson will 12 moved that including other charges should not be presented to
13 fill out or fill in the verdict sheet that has been given to 13 the jury. The government consented and agreed that no, no,
14 you, sign and date it, and advise the marshal outside your door 14 only the underlined portions are the charges that my client is
15 that you are ready to return to the courtroom. 15 charged with. However, this says "including," and she has
16 If you are divided, do not report how the vote stands, 16 previously in summation asked them to find otherwise.
17 and if you have reached a verdict, do not report what it is 17 I think it is confusing. I would ask the Court just
18 until you are asked in open court. 18 to give a statement simply that to find the defendant guilty,
19 I will stress that you should be in agreement with the 19 you must unanimously find beyond a reasonable doubt that at
20 verdict which is announced in court. Once your verdict is 20 least one of the underlined alleged perjury statements in the
21 announced by the foreperson in open court and officially 21 Indictment was knowingly false.
22 recorded, it cannot ordinarily be revoked. 22 They have an Indictment -- it is not said, your Honor.
23 Remember that your verdict must be rendered without 23 They have an Indictment with underlined statements, but it says
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Page 1138 Page 1140
"including," or at least change the "including" to "of the MR. LANPHER: They do. So I would just maybe
2 following underlined statements." That was what was 2 reiterate what the Court said by saying when I said that you
represented to me before. must find one of the charged statements to be false, I was
3 MS. ZORNBERG: Your Honor, we have no objection. 3 referring to the 25 underlined statements.
Your Honor, just for the record, we believe the MR. GARDNER: One of the 25 underlined statements.
4 Indictment is accurate on its face, but we have no objection if 4 MR. LANPHER: I think that is clear.
5 the Court wants to add that instruction. It is consistent with 5 MR. GARDNER: That is fine. Something like that.
6 what the government said in its closing summation and rebuttal, 6 THE COURT: All right.
7 not inconsistent. So that's fine. It doesn't give us any 7 MS. ZORNBERG: Judge, the only other thing we point
8 pause. 8 out is that when the Court spoke of the verdict form at page
9 THE COURT: All right. Mr. Gardner, what you asked, 9 34, the language was in the plural, of answering "questions."
10 the instruction that you asked, I think I have said that at 10 There is actually only one question.
11 least a half a dozen times in the instructions. I will see -- 11 MR. GARDNER: We did notice that.
12 MR. GARDNER: You didn't, Judge. I thought you did. 12 THE COURT: That is true except that the question is
13 It's not there. In fact, it is a little unclear because it 13 yes or no.
14 says some, some statements, and it is never -- in fact, the 14 MS. ZORNBERG: Fine.
15 word "underlined" doesn't appear at all in the jury charge, and 15 THE COURT: If the question is yes is one question.
16 we're giving them an Indictment that has things that are 16 If the question is no is another question. That's why I left
17 underlined and then the word "including." 17 it that way.
18 MS. ZORNBERG: Here (indicating). 18 MR. LANPHER: Then I wasn't sure how the Judge handles
19 MR. GARDNER: Yes. You may not -- I read this. In 19 the alternate.
20 fact, this is what I was going to suggest. 20 THE COURT: I will be taking care of that in a moment.
21 Where does it say anything about it being underlined? 21 Let me ask for the record, are there any objections to
22 In fact, it says "some statements" -- it says just the 22 the instructions as read beyond those that you have already put
23 opposite. It talks about "some statements" in the Indictment. 23 on the record?
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Page 1139 Page 1141
Do you have mine -- Government?
2 THE COURT: Again, Mr. Gardner, the jury was given a 2 MS. ZORNBERG: No, your Honor.
copy of the Indictment with the redactions that you requested, MR. GARDNER: Nothing beyond what has already been put
3 and it had the specific 25 statements underlined that was a 3 on the record and this one issue, your Honor.
part of the record, and the government went one by one through THE COURT: All right. Thank you.
4 each of the 25 and you went one by one through each of the 25. 4 (Continued on next page)
5 It cannot be unclear to this jury that they must only find 5
6 those 25 statements in their deliberations. 6
7 MR. GARDNER: Your Honor, the word says "including." 7
8 THE COURT: Including the testimony. In other 8
9 words -- 9
10 MR. GARDNER: No. Including all underlying testimony, 10
11 but that means it is not limited to. And this is what they 11
12 have, and then there is nothing mentioned in the charge. 12
13 If the government doesn't have an objection, I could 13
14 write this in. 14
15 THE COURT: Let me see. 15
16 MR. GARDNER: If it said "of the," then I wouldn't 16
17 have an objection. 17
18 THE COURT: All right. What I suggest is that instead 18
19 of the word "including," say "regarding the following 19
20 underlined testimony." 20
21 MR. LANPHER: There is a problem with that. They 21
22 already have the Indictment. That might be more confusing. 22
23 THE COURT: They already have this document? 23
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Page 1142 Page 1144
1 0ardoli4 Charge 1 0ardoli4
(In open court) deliberations).
2 THE COURT: I just want to come back to a matter that 2 (Jury not present)
possibly may create some uncertainty or ambiguity in the THE COURT: Will counsel please approach into the
3 Indictment that you were given copies of earlier today. 3 robing room.
On the first page of that document, the government, on (In the robing room)
4 the very last line, charges that the defendant gave false 4 THE COURT: Off the record.
5 testimony, and then it followed with the word "including the 5 (Discussion off the record)
6 following underlined testimony." 6 (Recess awaiting jury verdict)
7 I want to make clear that the reference to the word 7
8 "including" there is not intended to go beyond the 25 specific 8
9 statements that the government charges constitutes the perjury, 9
10 and those are the specific 25 statements that are underlined in 10
11 the copy of the Indictment that you were given. And your 11
12 determination as to whether or not the government has proven 12
13 the defendant guilty beyond a reasonable doubt must be limited 13
14 only to whether or not any one of those specific 25 statements 14
15 was false knowingly. 15
16 Now, we need to come back to a couple of open matters. 16
17 You may recall that at the time that we constituted 17
18 the jury, I indicated to you that there were two members of the 18
19 panel who were alternates. We subsequently lost one juror, 19
20 which means that we only have 13 and one alternate. The 20
21 remaining alternate in this case, who is excused at this time, 21
22 is Ms. Trujillo. You may take your belongings. 22
23 Let me thank you for your participation in the trial 23
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Page 1143 Page 1145
1 0ardoli4 1 0arroli5
up to this point. (4:30 p.m., jury not present)
2 (The alternate juror was excused) 2 THE COURT: The Court has been handed two notes from
THE COURT: All right. The Clerk will swear in the the jury. The first one, which will be marked Court Exhibit 1,
3 marshal, security officer. 3 indicates the jury's schedule. "Will meet today until 5 p.m.
(The security officer was sworn) and reconvene tomorrow until 5 p.m." The second note from the
4 THE COURT: All right. Thank you. 4 jury says, "We have a verdict." This will be marked as Court
5 Let me ask the jury, before you leave, that as you go 5 Exhibit 2. Just for the record, it also says, "Do you want the
6 into your deliberations, one of the first matters that you may 6 verdict form now or when we enter the court?" Dated
7 want to address, and inform the Court and the parties, is what 7 10/17/2010.
8 your contemplated schedule of deliberations for today is going 8 Will the court officer bring the jury in.
9 to be. Specifically, what time -- when you know, what time you 9 (Jury present)
10 contemplate adjourning for the day, so that I can call you back 10 THE COURT: The Court notes for the record that the 12
11 into the courtroom and dismiss you from here. And then hear 11 regular members of the jury impaneled in this action have been
12 what your schedule is for deliberations the following day. The 12 returned to the courtroom and are seated in the jury box in
13 reason for that is that the parties are interested in making 13 their respect proper places.
14 themselves available at all times, and they would not want to 14 Mr. Foreperson, Mr. Martin, please rise. Has the jury
15 be here needlessly if you are not going to be here after or 15 unanimously agreed upon a verdict?
16 before a particular time. 16 THE FOREPERSON: We have.
17 So as soon as you know what your schedule is going to 17 THE COURT: Please hand the clerk the verdict sheet.
18 be for today or for tomorrow, when you know, just send a note 18 Ladies and gentlemen of the jury, your verdict will
19 to the Court, through the marshal, informing the Court of when 19 now be published. That is, it will be read out loud in open
20 you plan to adjourn and when you plan to reconvene, if and when 20 court. Please pay close attention as the verdict is published.
21 you know that schedule. All right? 21 You may be asked individually whether the verdict as published
22 Thank you. And good luck, again. 22 constitutes your individual verdict in all respects. The clerk
23 (Time noted at 2:41 p.m., the jury began 23 will now publish the verdict.
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Page 1146 Page 1148
THE CLERK: Mr. Foreperson, with regard to Count One, defendant?
2 do you find that the government has proved beyond a reasonable2 MR. GARDNER: Yes, your Honor.
doubt that the defendant, Joseph Olivieri, is guilty of perjury THE COURT: Does the government contemplate any
3 as charged in the indictment? 3 changes in the bail conditions of the defendant?
THE FOREPERSON: Yes. MS. ZORNBERG: Your Honor, we would consent to Mr.
4 THE COURT: You may hand the verdict back to the 4 Olivieri remaining out on bail pending sentence on the bail
5 clerk. Thank you. You may be seated. 5 package already existing.
6 Does either party request that the jury be polled? 6 THE COURT: All right. Thank you.
7 MS. ZORNBERG: Not the government, your Honor. 7 MR. GARDNER: Judge, just so the record is complete, I
8 MR. GARDNER: Yes, your Honor, we would. 8 would make a motion for an acquittal in spite of the verdict.
9 THE COURT: The clerk will poll the jury. 9 THE COURT: The record should reflect that Mr. Gardner
10 (Jury polled, all answered in the affirmative) 10 on behalf of the defendant has made a motion post-verdict for
11 THE COURT: The clerk shall file and record the 11 acquittal. The Court believes that the evidence in the case is
12 verdict. Do either counsel object to discharging THE jury in 12 sufficient to warrant the verdict, and the Court therefore
13 case 08 Cr. 828? 13 denies the motion.
14 MS. ZORNBERG: No, your Honor. 14 MR. GARDNER: Thank you, sir.
15 MR. GARDNER: No, your Honor. 15 (Trial concluded)
16 THE COURT: Thank you. 16
17 Let me say a word to the jurors. You have completed 17
18 your duties as jurors. But before discharging you, I have a 18
19 few comments. You have just performed one of the most 19
20 important activities of being a United States citizen. As you 20
21 know, our system of government is divided into three branches: 21
22 The executive, the legislative, and the judicial branches. 22
23 As a citizen, in most cases your only participation 23
25 (212) 805-0300 25 (212) 805-0300
Page 1147
1 0arroli5
with the executive branch is when you cast your vote for
2 president. In the legislative branch, you vote for your
senators and members of Congress who represent your interests.
3 But your participation as jurors in the judicial branch goes to
the very heart of making our judicial system work and making it
4 one of the most successful and fair systems in the world. So
5 you can see the importance of the task you have just completed
6 for all of us, the court, the lawyers, and the parties. We
7 thank you for having performed your duty in an exemplary
8 fashion.
9 The clerk will escort you into the jury room. Please
10 collect your belongings and return all of the copies of the
11 exhibits and notes to the clerk. You are excused. However, I
12 would like to speak to you and thank you personally for your
13 service as jurors when you are in the jury room, so I would
14 appreciate it if you would wait for one moment when you were in
15 the jury room. I thank you. You are excused.
16 (Jury excused)
17 THE COURT: We must pick a date for sentencing. Let's
18 look at the calendars for a date roughly 90 days out.
19 THE CLERK: January 21st or the 28th?
20 THE COURT: Government?
21 MS. ZORNBERG: Either one is fine, your Honor.
22 THE CLERK: January 21st at 3:30.
23 THE COURT: Mr. Gardner, is that date suitable for the
25 (212) 805-0300

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