The opinion of the court was delivered by: KATZ
The indictment charges numerous offenses.
For present purposes, the government relies on two types of charges: union violence and obstruction of justice. The union violence involved shaking down roofing contractors. The obstruction of justice included taking kickbacks from two lawyers who operated a prepaid legal fund for union members for the purpose of creating a cash fund to "fix" state court judges and employees.
The union violence charges are that Traitz organized, Medina supervised, and Osborne carried out a scheme to force roofers to make monthly payments to the union by intimidation. Stephen Traitz, Jr. is the chief executive officer of the Roofers Union. Traitz directed the union's financial affairs, assignments of lower ranking officials and relationships between the union and public officials. Robert Medina was a business agent of the Roofers Union until March, 1986. Medina's role in the union involved the summoning of union contractors to the union officers where they were confronted by Medina, Mark Osborne, and others. These confrontations concerned alleged debts owed to the union, demands to pay money in the future and infractions of union rules. These confrontations included shouting accusations of wrongdoing, threats of physical harm and loss of business, slapping and physical abuse. These confrontations took place in a room where the contractor was confronted by a group of union agents. Defendant Medina handled some of the confrontations and was the primary speaker. Defendant Osborne participated in three of the confrontations which included two instances where he assaulted the victim. Stephen Traitz, Jr. was alleged to have orchestrated the demands to the contractors. The central demands were that roofing contractors pay $ 60 each month to the union on the basis of a report that they worked at least 100 hours each month, whether they actually worked that number of hours or not. The Indictment charges Traitz told Medina that the demands to roofing contractors to report 100 hours each month was a "hustle."
Stephen Traitz, Jr. also is charged in the indictment with masterminding a scheme to embezzle money from the union and its Prepaid Legal Fund by funnelling money through a law firm and receiving kickbacks. This money was used to give cash to federal, state and local public officials including state court Judges, court personnel, labor officials, police officers, prison officials and others. The indictment alleges that the cash was given to influence the officials in the performance of their official duties. Traitz intended to curry favor with state court judges to be able to influence them when persons affiliated or associated with the Roofers Union appeared as a defendant in a criminal case. For example, overt acts listed in furtherance of the RICO conspiracy involve discussions of efforts to "fix" cases and intentions to do so. One such case concerned local charges of aggravated assault against Robert Medina arising out of a traffic accident in which he was involved. The insurance claim concerning the automobile which Medina was driving at the time forms the basis for the mail fraud charges.
The weight of the evidence against defendants is difficult to evaluate with full confidence at this stage. The government has the results on tape of 150 days of electronic surveillance of the union headquarters between September 26, 1985 and February 20, 1986. I will evaluate the evidence regarding the violence, the obstruction of justice and, most importantly, intimidation of witnesses.
Defendants who, based on their past conduct of threatening witnesses, may intimidate witnesses must be detained. United States v. Delker, 757 F.2d 1390, 1401 (3d Cir. 1985). As the Court stated in United States v. Coleman, 777 F.2d 888, 894 (3d Cir. 1985):
". . . defendants who have threatened witnesses pose a significant danger and should be detained prior to trial."
The government has demonstrated that the three defendants under detention used the roofers' union to squeeze money out of roofing contractors by violence and intimidation. The tape recorded conversations demonstrate that the Roofers Union has conducted its affairs through a pattern of violence. On October 30, 1985, Stephen Traitz, Jr., Robert Medina, and another defendant discussed an individual who worked for Peerless Roofing. When Medina advised Traitz that the individual had not followed certain instructions, Traitz instructed Medina to have the individual beaten. Traitz advised Medina not to get involved personally in the beating. Traitz instructed Medina to get a "good gang" together and "give it to 'em good." Traitz instructed Medina that a "good punch in the mouth will do him a world of good." There is no evidence that this assault actually occurred.
On November 21, 1985, Stephen Traitz, Jr., after having been informed that a particular individual was in a dispute, instructed Mark Osborne, and other defendants to "back hand" the individual, but "don't punch him now" because he "hurt his head." This assault was to occur in the union offices. This assault did not occur because the individual did not come to the union offices as instructed.
In a December 10, 1985, conversation, Stephen Traitz, Jr. spoke of instructing other defendants to assault another union's business agent, if the individual did not accede to Traitz's request. There is no evidence that the assault took place. Traitz stated, "The first time I see him at one of them functions, I'll get Joey or Schoenberger to beat the fuckin' balls off him. Like I did with the two metal men, like I did with the ironworker, like I did with the bricklayer. That's how I do it. They're scared to fuckin' death of me because that's how the fuckin' operate."
Other conversations are proffered to indicate that on October 17, 1985, Stephen Traitz, Jr. told another defendant to summon a roofer to the union offices for a union infraction and to let defendant Joseph Traitz "give him a smack." On October 23, 1985, Traitz gave permission to a defendant to assault a roofer over a personal matter, according to another proffer in the government's Memorandum. Finally, on November 7, 1985, the government's Memorandum proffers that Traitz told another defendant what he (Traitz) tells other business agents to tell contractors to establish superiority. Specifically, Traitz stated, "If you fuck me, I'll beat you the fuck-up. Don't mess with me . . . I'll beat you up."
Stephen Traitz, Jr. does not perform the acts of violence personally. Rather, this task falls on one or more of his subordinates. The recorded conversation of October 10, 1985 is replete with evidence of this; it also suggests some connection between the union and a reputed organized crime employee.
In an October 3, 1985, tape recording, a contractor who tried to leave a confrontation at the union offices was forced to sit down for further intimidation. On November 21, 1985, another contractor was at the union offices for a confrontation. In that instance, Robert Medina was intercepted yelling "smack him in the mouth. Smack him again . . . smack him again." This was followed by slapping noises. The tape recording established that Mark Osborne was the individual who actually assaulted the contractor. Similarly, there is a tape recording from a November 26, 1985 assault of a roofer. In that confrontation, Mark Osborne slapped a roofer in the union offices for working on weekends. In yet another instance on September 26, 1985, Robert Medina and others confronted a contractor and accused him of underreporting the number of hours worked. In this confrontation, Robert Medina screamed and yelled at the contractor. At one point, the contractor is slapped on the side of the head by another defendant. At the end of this confrontation directed by Robert Medina, another defendant told the contractor, "You're lucky you're getting away with just a slap in the head; next time it won't be as easy."
In fairness to the defendants, it is difficult to evaluate on the present record a defense claim suggested at the Magistrate's hearing that the violence was used to achieve legitimate union objectives. See U.S. v. Enmons, 410 U.S. 396, 35 L. Ed. 2d 379, 93 S. Ct. 1007 (1973). Suffice it to say that, while I am not prejudging such a defense, its factual underpinnings on the present record appear weak. Correspondence dated September 18, 1985 between the union and its attorneys suggesting contract language that roofers report and pay on the basis of a specified minimum number of hours per month does not appear to explain or justify the beatings recorded by the government.
The evidence regarding these defendants' obstructing justice and intimidating witnesses demonstrates a clear intention to "fix" state court judges, but a weak showing of intimidation or threats to witnesses in a judicial proceeding. On October 16, 1985, Robert Medina was arrested by Philadelphia police officers for aggravated assault with a motor vehicle and related charges. The charges arose from a motor vehicle accident which occurred on June 21, 1985, between Medina and a 17 year old driver. Medina allegedly fled from the scene of the accident and drove to a cul-de-sac in Northeast Philadelphia. The 17 year old driver of the other vehicle followed Medina to the cul-de-sac and left his vehicle to speak with Medina. Medina then attempted to hit the youth with his vehicle by driving towards him. The youth was hit on the hand.
A Federal grand jury subpoena was served on the office manager of the Roofers Union who had submitted an insurance claim for the vehicle claiming it had been stolen. This claim was initiated by Stephen Traitz, Jr. On October 4, 1985, following the service of the subpoena, Traitz and Medina discussed the traffic accident. During the conversation, both Traitz and Medina admitted that Medina had been in the accident and fled from the scene. Medina further admitted that he had been intoxicated at the time and had a gun in the motor vehicle. The evening before the preliminary hearing in the case, Stephen Traitz, Jr., on behalf of the Roofers Union contributed $ 1,000 to the Judge to whom the case was assigned. At the preliminary hearing, all felony charges against Medina were dismissed. The case was scheduled for trial on November 26, 1985.
On November 1, 1985, a conversation was tape recorded between Stephen Traitz, Jr. and Robert Medina concerning the juvenile witnesses in the case. Showing Medina a piece of paper with the names and addresses of the victims, Traitz and Medina had the following conversations:
TRAITZ: Yeah, I got all their names and addresses.
MEDINA: Yeah. That's what he's afraid of, the lawyer.
TRAITZ: Yeah. That's okay. We'll let it go. Let it go down the pike. (UI) They'll get more than they fuckin' bargained for.
MEDINA: You know who's doin' all this, don't you Steve? It's not the kids . . .
TRAITZ: The FBI's doin' it.
MEDINA: It's the FBI and that fuckin' cop.
TRAITZ: Nah, they're usin' Ebner.
TRAITZ: They're usin' him. Don't worry . . . yo!
MEDINA: Them kids are young. Who the fuck . . .
TRAITZ: I want to kick'em in the ...