Page 1 52 F.3d 1173, 149 L.R.R.M. (BNA) 2001, 130 Lab.Cas. P 11,313 (Cite as: 52 F.3d 1173) Organizations statute (RICO), alleging that officer committed various racketeering acts on behalf of United States Court of Appeals, organized crime while he was secretary-treasurer of Second Circuit. union. The United States District Court for the UNITED STATES of America, Plaintiff–Appellee, Southern District of New York, Leonard B. Sand, v. J., entered judgment in favor of government, grant- Donald CARSON, Defendant–Appellant, ing injunctive relief, ordering officer to disgorge LOCAL 1804–1, ILA; John Barbato; George Bar- ill-gotten gains, and imposing approximately one; John Bowers; George Bradley; Thomas $46,000 of costs. Officer appealed. In addition, ap- Buzzanca; Sato Calabrese; Ronald Capri; Harry peal was taken from district court's dismissal of Cashin; James J. Cashin; Anthony Ciccone; Joseph complaint filed by official and his wife against uni- Colozza; Vincent Colucci; James Coonan; Michael on under Employee Retirement Income Security Coppola; Harold Daggett; Doreen Supply Com- Act (ERISA), which had been consolidated with pany, Inc.; Tino Fiumara; Anthony Gallagher; RICO suit. The Court of Appeals, Jacobs, Circuit Robert Gleason; John Gotti; Leroy Gwynn; ILA Judge, held that: (1) as a matter of first impression, Local 1588; ILA Local 1588, Executive Board; ILA RICO does not authorize disgorgement of gains ill- Local 1809; ILA Local 1809, Executive Board; ILA gotten long in the past; (2) order of disgorgement Local 1814; ILA Local 1814, Executive Board; An- and obligation to reimburse government for costs thony Anastasio; ILA Local 1909; Blase Terra- imposed in civil RICO proceeding following of- ciano; ILA Local 1909, Executive Board; ILA Loc- ficer's conviction for criminal charges based on al 824; ILA Local 824, Executive Board; Kevin same underlying conduct were compensatory and Kelly; Joseph C.F. Kenny; George Lachnicht; not punitive in nature and, therefore, were not Gregory Lagana; Frank Lonardo; Venero Mangano; barred by double jeopardy; (3) injunction imposed James McElroy; Metropolitan Marine Maintenance was not overly broad; (4) evidence supported find- Contractors; Carlos Mora; New York Shipping As- ing that officer breached his fiduciary duty to top- sociation; Nodar Ship Repair, Inc.; Ralph Perello; hat pension fund by hurting the fund he was Louis Pernice; Richard Pierce; Anthony Pimpinella; charged to administer; and (5) court clerk erred by John Potter; Douglas Rago; Joseph Randazzo; assessing costs on morning of last day to respond Thomas Ryan; Anthony Salerno; Frank Scollo; An- without awaiting arrival of objection received that thony Scotto; Alfred Small; and Dominick Sanzo, day. Defendants. Donald J. CARSON and Peggy Carson, Affirmed in part; vacated in part; remanded. Plaintiffs–Appellants, v. West Headnotes LOCAL UNION 1588, I.L.A., ITS OFFICER, EX- [1] Federal Courts 170B 669 ECUTIVE BOARD AND TRUSTEES, Defend- ant–Appellee. 170B Federal Courts 170BVIII Courts of Appeals No. 514, Docket 94–6044. 170BVIII(E) Proceedings for Transfer of Argued Nov. 21, 1994. Case Decided April 12, 1995. 170Bk665 Notice, Writ of Error or Cita- Government brought action against former uni- tion on officer under Racketeer Influenced and Corrupt 170Bk669 k. Commencement and run- © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 52 F.3d 1173, 149 L.R.R.M. (BNA) 2001, 130 Lab.Cas. P 11,313 (Cite as: 52 F.3d 1173) ning of time for filing; extension of time. Most F.R.A.P.Rule 4(a)(5), 28 U.S.C.A. Cited Cases When deciding motion to extend time for filing [4] Racketeer Influenced and Corrupt Organiza- Notice of Appeal, district court must consider tions 319H 83 danger of prejudice to non-movant, length of delay 319H Racketeer Influenced and Corrupt Organiza- and its potential impact upon judicial proceedings, tions reason for delay, including whether it was in the 319HI Federal Regulation reasonable control of movant, and whether movant 319HI(B) Civil Remedies and Proceedings acted in good faith. F.R.A.P.Rule 4(a)(5), 28 319Hk81 Relief U.S.C.A. 319Hk83 k. Disgorgement, divestiture, [2] Federal Courts 170B 669 or restitution. Most Cited Cases As a general rule, disgorgement is among the 170B Federal Courts equitable powers available to district court under 170BVIII Courts of Appeals Racketeer Influenced and Corrupt Organizations 170BVIII(E) Proceedings for Transfer of Act (RICO). 18 U.S.C.A. § 1964. Case 170Bk665 Notice, Writ of Error or Cita- [5] Racketeer Influenced and Corrupt Organiza- tion tions 319H 83 170Bk669 k. Commencement and run- 319H Racketeer Influenced and Corrupt Organiza- ning of time for filing; extension of time. Most tions Cited Cases 319HI Federal Regulation Inquiry into whether to grant motion to extend 319HI(B) Civil Remedies and Proceedings time for filing Notice of Appeal is at bottom an 319Hk81 Relief equitable one, subject to appellate review solely for 319Hk83 k. Disgorgement, divestiture, abuse of discretion. F.R.A.P.Rule 4(a)(5), 28 or restitution. Most Cited Cases U.S.C.A. Racketeer Influenced and Corrupt Organiza- [3] Federal Courts 170B 669 tions Act (RICO) does not authorize disgorgement of gains ill-gotten long in the past. 18 U.S.C.A. § 170B Federal Courts 1964. 170BVIII Courts of Appeals 170BVIII(E) Proceedings for Transfer of [6] Double Jeopardy 135H 25 Case 135H Double Jeopardy 170Bk665 Notice, Writ of Error or Cita- 135HII Proceedings, Offenses, Punishments, tion and Persons Involved or Affected 170Bk669 k. Commencement and run- 135Hk25 k. Fines, penalties, and forfeitures. ning of time for filing; extension of time. Most Most Cited Cases Cited Cases Order of disgorgement and obligation to reim- Granting motion to extend time for filing No- burse government for costs imposed on former uni- tice of Appeal was not an abuse of discretion where on officer in Racketeer Influenced and Corrupt Or- district court considered danger of prejudice to non- ganizations Act (RICO) action, pursued following movant, length of delay and its potential impact officer's conviction for criminal charges based on upon judicial proceedings, reason for delay, includ- same underlying conduct, were compensatory and ing whether it was in reasonable control of movant, not punitive in nature and, therefore, were not and whether movant acted in good faith. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 52 F.3d 1173, 149 L.R.R.M. (BNA) 2001, 130 Lab.Cas. P 11,313 (Cite as: 52 F.3d 1173) barred by Double Jeopardy; as long as order of dis- there has been a clear abuse of discretion. gorgement remained within bounds authorized by RICO, order would not be punitive and court costs [10] Injunction 212 1044 assessed were designed to compensate government 212 Injunction for cost of RICO trial and not to punish for wrong- 212I Injunctions in General; Permanent Injunc- doing. U.S.C.A. Const.Amend. 5; 18 U.S.C.A. § tions in General 1961 et seq. 212I(B) Factors Considered in General [7] Double Jeopardy 135H 23 212k1041 Injury, Hardship, Harm, or Ef- fect 135H Double Jeopardy 212k1044 k. Clear, likely, threatened, 135HII Proceedings, Offenses, Punishments, anticipated, or intended injury. Most Cited Cases and Persons Involved or Affected (Formerly 212k22) 135Hk23 k. Civil or criminal nature. Most Court are free to assume that past misconduct Cited Cases is highly suggestive of the likelihood of future viol- Civil sanction that cannot fairly be said solely ations, for purposes of determining whether to im- to serve a remedial purpose, but rather can only be pose injunction. explained as also serving either retributive or de- terrent purposes is punishment, for purposes of de- [11] Injunction 212 1301 termining if civil sanction implicates Double Jeop- 212 Injunction ardy Clause. U.S.C.A. Const.Amend. 5. 212IV Particular Subjects of Relief [8] Injunction 212 1193 212IV(H) Employment and Compensation 212k1301 k. In general. Most Cited Cases 212 Injunction (Formerly 212k208) 212IV Particular Subjects of Relief 212IV(C) Criminal Matters and Proceedings Injunction 212 1495 212k1193 k. Commission of crime in gen- 212 Injunction eral. Most Cited Cases 212IV Particular Subjects of Relief (Formerly 212k102) 212IV(T) Other Particular Matters In general, district court has broad discretion to 212k1495 k. Racketeering and criminal enjoin possible future violations of law where past organizations. Most Cited Cases violations have been shown. (Formerly 212k208) [9] Federal Courts 170B 814.1 District court made sufficient findings to sup- port conclusion that there was a reasonable likeli- 170B Federal Courts hood that, absent an injunction, former union of- 170BVIII Courts of Appeals ficer would attempt to return to position in which 170BVIII(K) Scope, Standards, and Extent he could engage in racketeering; officer had already 170BVIII(K)4 Discretion of Lower Court helped deprive union's members of $546,000 in 170Bk814 Injunction wages, had accepted free meals from employers, 170Bk814.1 k. In general. Most and had used his ties to crime family to maintain a Cited Cases climate of fear in union and to exploit that fear to District court's determination that public in- maintain control of union. terest requires the imposition of a permanent re- straint should not be disturbed on appeal unless [12] Injunction 212 1495 © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 52 F.3d 1173, 149 L.R.R.M. (BNA) 2001, 130 Lab.Cas. P 11,313 (Cite as: 52 F.3d 1173) 212 Injunction 170Bk621 k. Necessity of objections 212IV Particular Subjects of Relief or exceptions in general. Most Cited Cases 212IV(T) Other Particular Matters Plain error doctrine should only be invoked 212k1495 k. Racketeering and criminal with extreme caution in civil context.