United States v. Private Sanitation Industry Association of Nassau/suffolk, Inc., Nicholas Ferrante

MAHONEY, Circuit Judge:

Defendant-appellant Nicholas Ferrante moves this court for a stay , pending appeal and an expedited appeal of a judgment entered October 18, 1994 in the United States District Court for the Eastern District of New York, I. Leo Glasser, Judge, that granted summary judgment and injunctive relief in favor of the United States on a civil complaint alleging a violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. On November 30, 1994, we denied the motion for a stay and granted the motion for an expedited appeal, indicating that this opinion supporting our decision would follow.

Ferrante is one of many defendants, including various organized crime families, labor unions, and private sanitation companies, named in a complaint alleging a massive conspiracy to control the solid waste disposal industry on Long. Island through the use and threatened use of force in violation of RICO. See United States v. Private Sanitation Indus. Ass’n, 793 F.Supp. 1114, 1121-23 (E.D.N.Y.1992) (describing alleged-conspiracy in detail).

This appeal stems from the district court’s grant of summary judgment against Ferrante. See United States v. Private Sanitation Indus. Ass’n, No. CV-89-1848, slip op. (E.D.N.Y. October 13, 1994). Ferrante had pled guilty in the Supreme Court of the State of New York to coercion in the first degree, in violation of New York Penal Law § 135.65(1); for threatening certain private, contractors with damage to their property if they bid for waste disposal work. Id. at 2-3. The district court held that the conduct underlying this conviction, as established in Ferrante’s plea allocution, was clearly indictable under the Hobbs Act, 18 U.S.C. § 1951, and was therefore a RICO predicate act under 18 U.S.C. § 1961(1)(B). Slip op. at 9-10.

In addition, the government alleged that Ferrante had bribed officials at the Oyster Bay dump in order to receive a reduction in the amount of money that his companies *1084were required to pay for use of the town’s refuse disposal services. Id. at 10-11. The government submitted three affidavits by former Oyster Bay employees in support of this claim. Id. at 11. Ferrante’s only response was an affidavit by his son that to the best of the son’s knowledge, Ferrante had not paid any bribes. Because this statement was not based upon personal knowledge, it did not suffice to create an issue of fact precluding summary judgment. See Gatling v. Atlantic Richfield Co., 577 F.2d 185, 188 (2d Cir.) (per curiam), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 169 (1978); cf. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir.1988) (motion for summaiy judgment must be supported by affidavit based upon personal knowledge); United States v. Bosurgi, 530 F.2d 1105, 1111 (2d Cir.1976) (same). Further, Ferrante asserted his Fifth Amendment privilege against self-incrimination in response to deposition questions concerning these alleged bribe payments. Id. The district court found, based upon this invocation and the essentially un-controverted evidence submitted by the government, that Ferrante had clearly committed bribery in violation of New York State Penal Law § 200.00, a RICO predicate act under 18 U.S.C. .§ 1961(1)(A). Slip op. at 11-12.

Finally, the district found no material dispute of fact that these acts were sufficiently related to constitute a pattern, id. at 12-13, and that Ferrante was sufficiently involved in the Private Sanitation Industry Association, the RICO enterprise, to be subject to RICO liability. Id. at 13-15.

Having determined that the gbvernment was entitled to summary judgment with respect to liability, the court enjoined Ferrante from participating in the waste disposal business, violating RICO, and associating with his eodefendants for any commercial purpose, and ordered him to divest his interests in various enterprises and to disgorge the proceeds derived from his unlawful conduct into a court-administered fund. Id. at 15-17. Ferrante appealed and filed the motion to which this opinion responds.

A party seeking a stay of a lower court’s order bears a difficult burden. We consider (1) whether the movant will suffer irreparable injury absent a stay; (2) whether a party will suffer substantial injury if the stay is granted; (3) whether the movant has established a substantial possibility, which need not be a likelihood, of appellate success; and (4) the public interest. Hirschfeld v. Board of Elections, 984 F.2d 35, 39 (2d Cir.1992) (collecting cases).

There is no basis for a stay in this case. Ferrante points to no material issue of fact to establish a substantial possibility that the district court’s summary judgment regarding liability will be reversed on appeal. Indeed, we affirmed the district court’s grant of summary judgment and imposition of identical injunctive relief with respect to Fer-rante’s codefendant, Salvatore Avellino, Jr., in United States v. Private Sanitation Industry Ass’n, 995 F.2d 375, 377-78 (2d Cir.1993) (per curiam). See also United States v. Private Sanitation Indus. Ass’n, 811 F.Supp. 808, 818 (E.D.N.Y.1992) (addressing constitutionality of broad injunctive relief and specifying terms of injunctive relief against Avelli-no), aff'd, 995 F.2d 375 (2d Cir.1993) (per curiam). Like Ferrante, Avellino’s RICO liability wás based upon extortion and bribery in connection with Avellino’s trash-hauling companies. Id. at 810-11. Moreover, once liability is established, the trial court has broad discretion in fashioning relief, see 995 F.2d at 377, and is explicitly authorized to “order[ ] any person to divest himself of any interest, direct or indirect, in any enterprise.” 18 U.S.C. § 1964(a); see also United States v. Private Sanitation Indus. Ass’n, 793 F.Supp. at 1150-52 (discussing divestiture and disgorgement as RICO remedies).

In deciding to deny Ferrante’s motion for a stay, we have also considered the other factors pertinent to the issue whether to grant a stay. While Ferrante may well suffer irreparable harm from the divestiture of his companies, the interests of the government and the public in terminating the control of trash handling on Long Island by criminal conspirators weigh heavily against granting a stay. Because of the scope of the relief ordered against Ferrante, however, his *1085appeal will be heard on an expedited basis, and arrangements have been made by the parties with staff counsel regarding the details of that expedition. See order entered November 29, 1994.