11-0825-ag(L)
Duffy, et al. v. United States of America, et al.

                                        UNITED STATES COURT OF APPEALS
                                           FOR THE SECOND CIRCUIT

                                                    SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of November, two thousand twelve.

PRESENT:

           JOSÉ A. CABRANES,
           ROBERT D. SACK,
           SUSAN L. CARNEY,
                                Circuit Judges.
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WILLIAM DUFFY, GENE PANESSA, ANTHONY CAROLLO, JR.,
LAWRENCE PERSICO,

                      Interested Parties-Appellants,

JAMES MASCARELLA,

                      Defendant-Appellant,

                                 -v.-                                            Nos. 11-0825-cv(L); 11-0967-ag(CON)

UNITED STATES OF AMERICA,

                      Plaintiff-Appellee,

LOCAL 14-14B OF THE INTERNATIONAL UNION OF OPERATING
ENGINEERS,

                      Defendant-Appellee,

ETHICAL PRACTICES ATTORNEY OF INTERNATIONAL UNION OF

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OPERATING ENGINEERS LOCAL 14-14B, GEORGE A.
STAMBOULIDIS, ESQ., the court-appointed Ethical Practices
Attorney of the International Union of Operating Engineers
Local 14-14B,

                      Interested Parties-Appellees.
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FOR INTERESTED PARTY-APPELLANT
WILLIAM DUFFY:                                                            Frederick Kevin Brewington, Law Offices of
                                                                          Frederick K. Brewington, Hempstead, NY.

FOR INTERESTED PARTY-APPELLANT
GENE PANESSA AND DEFENDANT
APPELLANT JAMES MASCARELLA:                                               ROBERT JAMES LA REDDOLA, La Reddola, Lester
                                                                          & Associates, LLP, Garden City, NY.

FOR INTERESTED PARTIES-APPELLANTS
ANTHONY CAROLLO, JR. AND
LAWRENCE PERSICO:                 CHRISTOPHER A. SMITH (Seth Ptasiewicz, on the
                                  brief), Trivella & Forte, LLP, White Plains, NY.


FOR PLAINTIFF-APPELLEE:                                                   KENNETH MATTHEW ABELL, Assistant United
                                                                          States Attorney (Varuni Nelson, Richard K.
                                                                          Hayes, Assistant United States Attorney, on the
                                                                          brief), for Loretta E. Lynch, United States Attorney,
                                                                          United States Attorney’s Office for the Eastern
                                                                          District of New York.

FOR DEFENDANT-APPELLEE:                                                   James Michael Steinberg, Peter Thomas Sheridan,
                                                                          Brady, McGuire & Steinberg P.C., Hastings-on-
                                                                          Hudson, NY.

FOR INTERESTED PARTY-APPELLEE:                                            GEORGE A. STAMBOULIDIS (Lauren J. Resnick,
                                                                          Patrick Thomas Campbell, Christy Ann Nixon,
                                                                          Denise Dorothy Vasel, on the brief), Baker &
                                                                          Hostetler LLP, New York NY.



        Appeal from a February 1, 2011 order of the United States District Court for the Eastern
District of New York (Sterling Johnson, Jr., Judge).




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    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the February 1, 2011 order of the District Court be AFFIRMED.

          William Duffy, Gene Panessa, Anthony Carollo, Jr., Lawrence Persico, and James Mascarella
(jointly, “appellants”) appeal from an order of the District Court granting George A. Stamboulidis’
motion to enforce a consent decree and judgment. Appellants are current or former members of Local
14-14B (“Local 14”) of the International Union of Operating Engineers (“IUOE”). We assume
familiarity with the underlying facts and procedural history of this case.

         This appeal concerns the government’s continuing efforts to combat the influence of organized
crime on Local 14. In July of 2008, the United States brought suit against Local 14 under the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68. On August 11, 2008, the
District Court signed and entered a consent decree and judgment (“Consent Decree”) settling the case.
The purpose of the Consent Decree was, among other things, “to eradicate Corruption . . . and any
organized crime influence within Local 14 while preserving the Local’s strength and autonomy as the
bargaining agent and representative of its membership.” Joint App’x 41. To accomplish this goal, the
Consent Decree provided for the appointment of an “Ethical Practices Attorney” (“EPA”), who, along
with an appointed Hearing Officer, would wield the authority “to conduct disciplinary proceedings and
take disciplinary action [to] the full extent of authority that Local 14 has under the IUOE Constitution.”
Id. at 42, 46. In particular, the EPA was empowered “[t]o commence disciplinary proceedings and bring
charges against any member of the IUOE or any IUOE local who has engaged in Corruption
Concerning Local 14.”1 Id. at 48.

        After the Consent Decree was entered, the EPA, George A. Stamboulidis, notified appellants
that they faced potential disciplinary charges. It quickly became clear that, for each appellant, the
potential charges stemmed from an organized-crime-related felony to which the appellant had pleaded
1   The Consent Decree defines “Corruption” as including, but not being limited to:

           (1) Engaging in conduct which constitutes or furthers an act of racketeering as enumerated or defined in 18 U.S.C.
               § 1961(1);
           (2) Knowingly associating with any member, associate, or other individual involved with any organized criminal
               group, including any [La Cosa Nostra] family, or knowingly associating with any Barred Person;
           (3) Obstructing the work of the Court-appointed Ethical Practices Attorney and Hearing Officer, described
               herein, or the implementation of any other relief that may be imposed in this case;
           (4) Knowingly permitting, aiding or abetting any member or associate of the LCN, or any other organized criminal
               group, to exercise control or influence in the conduct of Local 14’s affairs;
           (5) Any violation of federal or state law involving the operation of a “labor organization” as that term is defined
               in 29 U.S.C. § 402(i) and (j) which could serve as the basis of a criminal charge under federal or state law;
           (6) Any violation of federal or state law involving an “employee welfare plan” or an “employee pension benefit
               plan” as those terms are defined in the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
               U.S.C. § 1001 et seq. which could serve as the basis of a criminal charge under federal or state law; and
           (7) Any act or inaction which furthers the influence of any organized criminal group.

Joint App’x 43.

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guilty in either 2004 or 2005—three or four years before the Consent Decree was entered. Appellants
responded to Stamboulidis that they did not believe the Consent Decree empowered the EPA to bring
charges for conduct that occurred prior to the effective date of the Decree.

        In response, Stamboulidis filed a motion with the District Court, seeking to clarify the EPA’s
authority under the Consent Decree to bring charges for past conduct. The District Court found “that
retroactive application of the anti-corruption provisions of the Consent Decree is not only permissible,
but also necessary to implement the Consent Decree’s intent.” Appellants now argue that the District
Court erred in finding that the Consent Decree applies retroactively.2

                                                   DISCUSSION

         We review a district court’s interpretation of a consent decree de novo. Broadcast Music, Inc. v.
DMX Inc., 683 F.3d 32, 43 (2d Cir. 2012). However, “‘[f]ew persons are in a better position to
understand the meaning of a consent decree than the district judge who oversaw and approved it.’”
United States v. Local 359, United Seafood Workers, 55 F.3d 64, 68 (2d Cir. 1995) (quoting Berger v. Heckler,
771 F.2d 1556, 1576 n.32 (2d Cir. 1985)). Therefore, “[o]ften deference is given to the interpretation
made by the district judge who approves the decree, a precept especially appropriate in circumstances
where the judge has played a role in supervising the negotiation of the terms of the decree.” Doe v.
Pataki, 481 F.3d 69, 76 (2d Cir. 2007).

        We see no reason to depart from the reasoned analysis of the District Court that the Consent
Decree permits retroactive enforcement of its anti-corruption provisions. As the District Court has
explained, the provisions delegating to the EPA the Union’s existing power to bring disciplinary charges
and the authority to commence proceedings against any member who “has engaged” in corruption
make clear that the EPA may proceed against appellants for their past conduct relating to organized
crime. The Consent Decree’s explicit purpose of ridding Local 14 of the influence of organized crime
only confirms this conclusion, as does Local 14’s agreement that the Consent Decree’s anti-corruption
provisions apply retroactively.

        Appellants’ arguments to the contrary are unconvincing. Appellants principally rely on two
provisions that they claim preclude retroactive enforcement. First, appellants point to the section titled
“Effective Date of Consent Decree,” which reads, “[t]he provisions of this Consent Decree shall be
effective upon the filing of this executed Consent Decree in the District Court.” Joint App’x 69. This
provision simply states when the rules and procedures set forth in the Consent Decree will be initiated,
and has no bearing whatsoever on retroactive enforcement of the substantive terms of the Consent
Decree. Of course, a Consent Decree that applies retroactively still has an effective date.


2Appellants also argue that the Consent Decree should not be modified to incorporate retroactivity. Because we find no
error with the District Court’s interpretation of the Consent Decree, we do not address this argument.
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         Second, appellants point to the “Future Practices” provision, which reads, in relevant part, “[t]he
parties intend the provisions set forth herein to govern Local 14’s practices in the areas affected by this
Consent Decree, now and in the future.” Id. at 70 (emphasis added). This provision is irrelevant. This
provision merely explains that the practices of Local 14 must continue to comply with the Consent
Decree. Indeed, the very next sentence of the provision states that “Local 14 shall give prior written
notice to the United States Attorney’s Office and to the Ethical Practices Attorney of any proposed
changes to its By-Laws.” Id.

       In sum, appellants have advanced no basis for contradicting the express terms of the Consent
Decree, which, in the words of the District Court, demonstrate “that retroactive application of the anti-
corruption provisions of the Consent Decree is not only permissible, but also necessary to implement
the Consent Decree’s intent.”

                                             CONCLUSION

       We have carefully reviewed the record and the parties’ arguments on appeal, and we affirm the
February 1, 2011 order of the District Court.

                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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