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Chapter 12 – On the Waterfront: The United States v. Scotto

By January 18, 2019 September 4th, 2019 No Comments

 

“If they’re shooting at you,
you must be doing something right.”
—Aaron Sorkin


Dad, who is Rico?” That’s what I asked my father the same day we tooled around Martha’s Vineyard looking for a television to watch Nixon’s resignation. A few nights before, I had been eavesdropping on a conversation between Jimmy and some of his colleagues. As I spied on the secretive conversation from an adjacent room, all I could discern was “Rico this and Rico that.”

I had no idea, then, that RICO was not a person but an acronym for the most consequential federal racketeering statute ever enacted. Jimmy would spend the next forty years of his professional life trying to counter this prosecutorial guillotine of a law on behalf of mobsters, politicians, businessmen and even other lawyers.

From the time it was passed by Congress in 1970, RICO was dormant until Jimmy’s 1979 “conduit” defense of labor leader Anthony Scotto. The second success for RICO wouldn’t see the light of day for more than five years when Rudolph Giuliani would announce his crowning prosecutorial achievement, known as the Commission trial.

Giuliani, then a white hat government crusader, had his sights set on bringing down the entire Mafia in one fell swoop. To accomplish that, he would ramp up the RICO statute. By the turn of the century, RICO cases resulted in virtually all of the top leaders of the New York Mafia being sent to prison. While RICO was intended originally to snag the upper echelon of the mob, it was expanded, subsequently, to charge members of the Catholic Church, the Oakland chapter of the Hells Angels, and even the Key West (Florida) Police Department, and FIFA—the preeminent European sports association—with racketeering.

Though my father did not live to see Donald Trump elected President, I could not have known when he died in 2014 how much my personal, circular journey with my father would match that of our nation’s current state of affairs. How could I have explained the current RICO sensationalism to my father—the man who plodded and pushed the original statute for the benefit of his Mob clients? How about another well-worn axiom: Well, Dad, what goes around comes around?

It seems that each passing week of the Trump Administration moves us incrementally closer to an historical reckoning in which the characters of my childhood re-emerge to become household names to a new generation, which includes my own children. I am reminded that the past is rooted in an axiomatic theme: If you live long enough, history will repeat itself.

I could not have imagined on August 9, 1974, that Donald Trump, the epitome of New York’s largess, would become the forty- fifth President of the United States. That Rudolph Giuliani, the for- mer United States Attorney in the Southern District, who used the RICO Act as a brutal cudgel against anyone who attempted to halt him in his quest for political fame, today finds himself preparing for racketeering-style charges against the president. In the irony of all ironies, President Trump could face the very racketeering statute that helped make Giuliani’s once-potent prosecutorial reputation.

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It was my kindly professor’s obsession with a pair of Italian im- migrants, Sacco and Vanzetti, that first focused my attention on my family’s role on the Brooklyn waterfront at the turn of the twentieth century. The celebrated story of the hapless Italian-born anarchists, executed in 1927 for a senseless robbery/murder in Braintree, Massachusetts, prompted me to realize that my great-grandparents shared similar radical political roots. The story doesn’t end there, though.

In a double twist of fate, another mystery revealed itself as I was researching this chapter on labor leader Anthony Scotto and the landmark trial that bears his name. It emerged that there is little doubt that both the Scotto and LaRossa ancestors crossed paths on the Brooklyn docks in the early 1900s.

Anthony Scotto, one of the most powerful labor leaders in the United States, was born in the tough Red Hook waterfront section of Brooklyn in 1934, where both his father and grandfather had been dockworkers. My father, who would become Scotto’s lawyer in one of the most celebrated trials of a generation, was born in Flatbush, Brooklyn, three years prior.

In a fascinating and comprehensive article in The Notre Dame Law Review by Thomas J. and Tricia N. Salerno, “United States v. Scotto: Progression of Waterfront Corruption Prosecution from Investigation through Appeal,” the authors started with a dramatic depiction of corruption, violence, and terror on the docks right out of Elia Kazan’s classic 1954 film On the Waterfront: “The New York docks have been overridden with illegal activity since the turn of the century. Loan sharking, extortion, kickbacks, and theft are routine on the piers because of the unique geographical features of New York City and the nature of the shipping business. The New York harbor has no direct link with a railroad line. As a result, longshoremen must load the incoming cargo onto waiting trucks for distribution.”

They wrote that congestion, seasonal and cyclical delays, the overall economy, and other variables contributed to factors that “ac- count for two of the most prevalent criminal activities on the docks: the ‘loading racket’ and ‘kickbacks.’ The loading racket stemmed from the trucking industry’s great need for speed. Narrow piers and waterfront streets made it impossible to load more than a few trucks at a time. During World War I, waiting time became the most expensive aspect of trucking. The truckers resorted to hiring helpers to cut down on loading time; however, those fees increased with the demand for services. Truckers quickly learned they could speed the unloading process by paying an additional ‘hurry up’ fee.

“The kickback, on the other hand, has been a more traditional form of criminal activity, caused by the fluctuation in the number of ships arriving daily in the New York harbor. This fluctuation made it difficult for employers to estimate how many laborers they would require each day. Consequently, the ship owners hired more workers than necessary, and each morning chose the needed men from the work pool. The remainder loitered on the piers, hoping to be chosen later in the day or the next morning. An employee’s willingness to ‘kickback’ a portion of his wages to the unloading foreman generally guaranteed that he would be chosen from the work pool… Those who desired a piece of the waterfront action found that control of the union locals was a prerequisite to conducting racket operations on the piers.” (Salerno)

In the early 1950s, Scotto himself started working on the docks on weekends and summers. He eventually attended Brooklyn College, where he studied political science with the goal of eventually entering law school. After two years of college, however, he dropped out to pursue a full-time career on the waterfront. By 1957, he was the business administrator of a health clinic operated jointly by the I.L.A. and the New York Shipping Association (NYSA), a conglomerate of waterfront employers. He held various other union posts until his father-in-law’s death in 1963, when Local 1814 elected Scotto its president. The I.L.A. soon elected Scotto its vice-president. Scotto began to build his reputation as a political power broker, quickly molding his union local’s cash-raising ability and manpower into a viable political force (Salerno).

My grandfather, whom I called “Pop,” was the first generation of the LaRossa family born in New York. Pop was as big and tough with his hands as my father was with his mouth. Pop’s father and mother owned a longshoreman’s restaurant on the docks of Brooklyn. My great-grandmother cooked and my great-grandfather tended bar and kept the peace. I never met my great-grandparents, but for the life of me, I cannot imagine how tough you had to be to own and run a longshoreman’s restaurant in New York City, circa 1900.

Almost eighty years later, the Scotto and LaRossa families were well-matched to fight side by side. Not even they could have known, however, that as the jury was seated in The United States v. Scotto in September 1979, the future of RICO, and the survival of organized crime at the end of the twentieth century, were on the line.

RICO was the brainchild of a soft-spoken, bearded federal agent with a no-nonsense intellect by the name of G. Robert Blakey. Nightly television crime dramas have acquainted Americans with the fact that “conspirators” in criminal acts can be as culpable as the actual perpetrators of the crime itself. Prior to Blakey’s RICO Act, that wasn’t the case.

The leaders of the Mafia had, historically, been insulated from crimes committed on their behalf because they did not pull the trigger themselves but ordered others to do so. What RICO did was treat the entire Mob family as a top-to-bottom criminal “enterprise.”

Blakey understood that for a jury to convict an entire criminal syndicate, the activities of all involved must be distilled into simple, understandable crimes, in which the entire gang was complicit. “He [Blakey] did it by making it so simple—that the very act of somehow being involved in an enterprise implicated you,” explained New York Times journalist and author Selwyn Raab.

The RICO Act focuses specifically on racketeering, and it allows the leaders of a syndicate to be tried for the crimes that they ordered others to do or assisted them in doing, closing a perceived loophole that allowed a person who instructed someone else to, for example, commit murder, to be exempt from the trial because they did not actually commit the crime personally (18 U.S. Code § 1962(c); see also Criminal RICO Prosecutors Manual).

Blakey’s law proved to be a prosecutor’s dream. Under RICO, a person who committed at least two acts of racketeering activity drawn from a list of twenty-seven federal crimes and eight state crimes within a ten-year period can be charged with racketeering if such acts are related in specified ways to an “enterprise.” Those “acts” could include putting a coin in a payphone for a call made in furtherance of a crime.

“The idea of racketeering statutes was to prosecute the organization as an institution and seize as much of their assets as possible so someone else couldn’t just come along and take over,” said Giuliani in the History Channel biography of Jimmy.

Prior to the government’s aggressive use of the RICO Act, according to former federal attorney and former Homeland Security Director Michael Chertoff, “it was very difficult to get the leadership of an organized crime family. They don’t go out on the street and shakedown people, they don’t conduct the actual gambling operations, and they don’t generally commit murders personally.”

It took almost a decade to first test RICO. The first “victim” was the head of the longshoreman’s union. If federal prosecutors succeeded, the racketeering act could someday be aimed at the entire leadership of the major organized crime families. First, the government would have to prevail against Scotto and what many lawyers believe was one of the most ingenious defenses of the day.

If the legendary Carmine DeSapio made history as the first Italian-American to take the reins of the 200-year-old Democratic machine of Tammany Hall, Anthony M. Scotto made waves as an outstanding union leader the likes of which had not been seen before. In a day when union leaders were more leg breakers than contract negotiators, Scotto was described by Governor Hugh Carey as “trustworthy, energetic, intelligent, effective, and educated.”

The New York Times on March 2, 1978 said Scotto was a “rising star in the labor world, where it was assumed he would soon succeed Thomas W. Gleason as president of the 116,000-member ILA, and perhaps eventually take the reins of the AFL-CIO.”

Throughout the 1970s, Scotto exerted considerable influence on New York state politics. He was instrumental in both the re-election of New York Mayor John V. Lindsay and the election of Lindsay’s successor, Abraham Beame. He also raised funds for Mario Cuomo’s unsuccessful mayoral campaign and helped to raise approximately $1 million for the 1974 Carey for Governor campaign. Scotto served as a New York delegate to the Democratic National Conventions in 1972 and 1976. He actively supported presidential candidate Jimmy Carter in 1976, and campaigned with him throughout Brooklyn.

In July 1975, the New York legislature, prodded by Scotto, passed a bill that amended the state’s workmen’s compensation law. The new law provided state payment for injuries to ILA members treated at the NYSA-ILA clinic in Brooklyn. Scotto also helped place men into city and state bureaucratic positions. Scotto claimed responsibility for recommending numerous bureaucrats to positions under Mayors Lindsay and Beame and Governor Carey. He enjoyed a working relationship with both city and state administrations.

Scotto was also influential in numerous port-related appointments, including those of Louis F. Mastriani as commissioner of Ports and Terminals; Arthur Cooperman, New York State Workmen’s Compensation Board chairman; Howard Schulman, member of the Port Authority of New York-New Jersey; and Paul Hall, Seafarer’s International Union president.

In 1979, after long governmental scrutiny, Scotto found himself indicted. In a press statement, Jimmy described the indictment as “a finale of a fifteen-year Justice Department vendetta against Mr. Scotto which has undoubtedly cost the taxpayers untold millions of dollars.” Also, according to The Notre Dame Law Review article, “dock- workers and ILA members interviewed in Scotto’s home area viewed Scotto as a victim of the government investigation, and believed he would ultimately be cleared… Scotto vehemently denied [the government’s] allegations against him, calling them ‘anti-labor tactics’ and ‘political guerilla warfare.’ Other Scotto supporters claimed that the move was revenge by the Nixon Administration for Scotto’s strong anti-war policy…

“The chief evidence against Scotto was obtained from court-ordered wiretaps conducted by the FBI… There was a total of 1,100 hours of tapes at the conclusion of the investigation.

“Scotto and Anastasio both pleaded not guilty at the arraignment on January 25, 1979. Although LaRossa argued that the court should require no bail for Scotto because he was ‘a good enough risk for the President [Carter] to have lunch with, bail was set at $50,000 for Scotto and $30,000 for Anastasio. The case was assigned to Judge Charles E. Stewart, Jr., sitting in the Southern District of New York.”

United States v. Scotto was a trial to end all trials, and the whole world seemingly tuned in to monitor it. The New York Times, The Washington Post, The Daily News, The New York Post, every local station, and every national TV network covered the trial every day. The great New York columnist Jimmy Breslin dubbed the Scotto trial “the best show in town.” RICO was about to be launched to either great fanfare or death by a thousand objections at the hands of Jimmy for the defense.

In his opening statement on Tuesday, September 18, U.S. Attorney Fiske characterized Scotto as a “corrupt and greedy official” who “demanded and received $300,000 in cash in illegal payoffs despite a union salary of more than $100,000 a year.” LaRossa, on the other hand, characterized Scotto as a “responsible, sincere labor leader” with a sense of civic duty. He outlined Scotto’s defense, stating that any money Scotto received was for political contributions and was passed on. This became known as Scotto’s “conduit” defense.

The government began its case on Wednesday, September 19. Of the twenty-three witnesses called by the government, three were central to the government’s case. The first was William “Sonny” Montella, the general manager of Quin Marine Services, a company that provided carpentry services to ships docked on the waterfront. Montella revealed that he had personally paid at least $75,000 to Scotto in return for Scotto’s influence in preventing competitors from taking away any of Quin Marine’s business. He testified he made payments in 1976 according to an agreed-upon schedule.

Montella testified further that he had carried a concealed recording device provided by the FBI to a July 13, 1978 meeting with Scotto in the men’s room at the Drake Hotel in Manhattan. At that meeting, according to his testimony, he gave Scotto $5,000. The government then introduced recordings made during meetings between Montella and Scotto on January 13, 1978, where Montella passed $10,000 to Scotto, and on March 13, 1978, where the two men reviewed their schedule of payments.

“During LaRossa’s cross-examination,” the Salernos wrote, “Montella admitted that he had lied, stolen, and made illegal payoffs in the past and had pleaded guilty to making illegal payoffs, to extortion, and to tax evasion. Montella also conceded that Scotto had never actually steered any business to Quin Marine Services. Jimmy challenged business records produced by the government. Because one entry recorded a single payment twice, LaRossa argued that such an error demonstrated a lack of accuracy.”

Today, few criminal trials last six days in duration. Jimmy’s cross of Montella lasted five.

“The government completed its case against both defendants by establishing the tax evasion charges. The case had taken almost four full weeks to present. The government had presented three major witnesses, twenty supporting witnesses, and thirty-seven separate tapes.” (Salerno)

The defense opened on Wednesday, October 17. LaRossa and co-counsel Gustave (Gus) Newman called twenty-one witnesses, including nine character witnesses. The impressive list included two former New York City mayors, various labor leaders, and Governor Hugh Carey. In an unusual move, “LaRossa presented most of the character witnesses first, breaking the flow occasionally to present the other defense witnesses. Former Mayor John V. Lindsay stated that he regarded Scotto as ‘a man of high integrity.’ New York State Supreme Court Judge William C. Thompson testified that Scotto assisted in the desegregation of the Manhattan docks. Former mayor Robert F. Wagner called Scotto ‘a man of integrity and ability and a darned good labor leader.’ The final character witness, Governor Hugh Carey, testified that Scotto acted ‘on his conscience for what is right and not what is popular.’ On cross-examination, Carey admitted that the ILA had contributed $42,000 to his 1978 campaign and that Scotto had made a personal loan of $20,000 (later repaid) to the same cause” (Salerno).

Closing arguments began early on Friday, November 9, and ended late Saturday afternoon. As a college junior, I was present for my father’s dramatic three-hour summation, which he delivered mostly from memory, rarely consulting his notes. The courtroom was packed with press, sketch artists, lawyers, and family. It seemed as if the rest of the world had paused for the afternoon.

In an unusual Sunday session, Judge Stewart reviewed the sixty- count indictment against the defendants in a two-hour jury charge. The jury began its deliberation by requesting and listening to three sets of tapes.. On Thursday, November 15, 1979, after four days of deliberations, the jury rendered a guilty verdict against both defendants on most of the counts. Despite Scotto’s favorable press treatment, RICO had passed its first test, which many observers had predicted would not go well for Blakey’s creation.

Dad chalked his failure up to the novelty of the law, which the jury had bought hook, line, and sinker. “It was clear the money was going to political purposes, but the jury wasn’t ready to agree even though the proof was there,” he said.

The reaction to the conviction was mixed. Scotto was “shocked,” and declared: “I know I am innocent.” Both defense attorneys stated that their clients would appeal. Hours after the court announced the verdict, Carey issued a two-paragraph statement expressing sympathy for Scotto’s family and urging the State Board of Elections to investigate possible election law violations that trial testimony may have revealed. There were no immediate comments from Lindsay, Wagner, or Judge Thompson. Cuomo was “gratified” that the jury had exonerated his campaign from election law violations. At least one character witness, the rough-and-tumble Victor Gotbaum, head of District Council 37 of the American Federation of State, County and Municipal Employees, said he was unconvinced by the verdict.

“The court sentenced Scotto on January 22, 1980. Pleading for leniency prior to sentencing, LaRossa said Scotto should not be treated- ed like a ‘common thief.’ Bob Fiske, whom LaRossa acknowledged to be among the most professional prosecutors he had ever faced, responded that Scotto displayed ‘an arrogant contempt for the law,’ and committed crimes in the ‘classic pattern[s] of racketeering.’”

Judge Stewart sentenced Scotto on all counts consecutively, issuing an effective sentence of five years imprisonment, followed by five years probation and a $75,000 fine. While Judge Stewart could have given a maximum twenty-five-year sentence for the RICO counts, he stated that pleas for leniency from a wide range of people, and Scotto’s lack of a previous criminal record, accounted for the relatively light sentence. Although RICO contains a forfeiture clause whereby the government could have forced Scotto and Anastasio to resign from their union positions, the court did not impose forfeiture on either man.

Daily News columnist Jerry Capeci put it succinctly. “Tony Scotto won the case in the newspapers. A lot of journalists took the position that he was being railroaded after hearing Jimmy’s defense.”

“It was a very bold defense,” Fiske said to the History Channel. “Usually defense lawyers save the character witnesses for the end. LaRossa’s strategy was to put these [character] witnesses on [the stand] to condition the jury before Scotto took the stand … We often say lawyers don’t make the facts. Jimmy wasn’t there when the tape recordings were made, so he played the cards he was dealt and I think he did an admirable job.”

Losing such a high-profile case was not what Dad had hoped for. Still, the positive comments from other lawyers and from the press were nearly universal. Even Jimmy’s co-counsel, Gus Newman, conceded, “Jimmy very imaginatively shifted the focus, saying the tapes did not amount to illicit conversations but were about political contributions to an election campaign.”

Dad was far from done with Anthony and the entire Scotto family. The Scottos maintained a special relationship with the “Bionic Mouth of New York” for many, many years afterward. During that period, Jimmy would chip away at RICO on behalf of politicians, lawyers, stockbrokers, and stone-cold killers.

Dad couldn’t care less whether Santa loaded your stocking with diamonds or SPAM on Christmas morning. He was going to endeavor, day after day, to tag the government with the graffiti of reasonable doubt no matter what.

“Fuck them and the horse they rode in on,” Jimmy said to Tony Scotto as they walked out the courthouse’s front door to face the music.

 

 

 

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