resolve several threshold matters. First among these is the question of the burden of proof applicable to this action. Defendants suggest that because of the criminal conduct alleged as constituting some of the predicate acts herein, the appropriate burden is the highly stringent "beyond a reasonable doubt" standard, or alternatively the intermediate standard of "clear and convincing" evidence. The government responds that, given the nature of the relief sought and the fact that this is a civil action, the "preponderance of the evidence" standard should be applied.
The Supreme Court has recently noted that "'the function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 1395, 71 L. Ed. 2d 599 (1982), quoting Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979) and In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) (Harlan, J., concurring). In any given proceeding, the standard of proof applied "reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants." Santosky, 102 S. Ct. at 1395.
At one end of the spectrum of the three burdens of proof established by the Court's opinions in this area is the "preponderance of the evidence" standard. This is the standard applied in the typical civil case, which usually involves private parties seeking money damages. Society has the least concern with the accuracy of the outcome of such private suits, and the litigants share the risk of error in roughly equal fashion. Addington, 441 U.S. at 423.
At the other end of the spectrum, in a criminal case, the interests of the defendant are of such magnitude that they "have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment." Id. (footnote omitted). As a consequence, society imposes almost the entire risk of error on itself in such cases.
In the middle ground is the intermediate standard, usually known as the "clear and convincing evidence" standard. It is generally used in civil actions involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant, as well as in civil actions initiated by the government that "threaten the individual involved with 'a significant deprivation of liberty' or 'stigma.'" Santosky, 102 S. Ct. at 1396, quoting Addington, 441 U.S. at 425, 426. See, e.g. Santosky, (parental rights termination proceeding); Addington, (civil commitment); Woodby v. INS, 385 U.S. 276, 285, 17 L. Ed. 2d 362, 87 S. Ct. 483 (1966) (deportation); Chaunt v. United States, 364 U.S. 350, 353, 5 L. Ed. 2d 120, 81 S. Ct. 147 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159, 87 L. Ed. 1796, 63 S. Ct. 1333 (1943) (denaturalization).
Applying these distinctions to the case before me, I find that the "preponderance of the evidence" standard is the appropriate burden of proof to be applied herein. First, the defendants in this action do not face criminal sanctions, and thus there appears to be no basis on which to apply the "beyond a reasonable doubt" standard. Next, the defendants also do not face the risk of a significant deprivation of liberty or stigma as defined by the Supreme Court. While the complaint does allege fraudulent acts and other criminal and quasi-criminal conduct on the part of certain of the defendants, these allegations are only in the context of the RICO statute's requirement that, even in civil RICO actions, the plaintiff plead and prove the existence of a pattern of racketeering activity.
Further, I find that the nature of the relief sought provides an additional key to the burden of proof issue. The relief sought by the government in this action -- that which is authorized by § 1964(a) -- is equitable and remedial in nature, not punitive. In these circumstances, I find it appropriate to follow the clear majority of the courts which have considered this issue in applying the "preponderance of the evidence" standard. See, e.g., United States v. Cappetto, 502 F.2d 1351, 1358 (7th Cir. 1974), cert. denied, 420 U.S. 925, 43 L. Ed. 2d 395, 95 S. Ct. 1121 (1975); Farmers Bank of Delaware v. Bell Mortgage Corp., 452 F. Supp. 1278, 1280 (D.Del. 1978); United States v. Winstead, 421 F. Supp. 295, 296 (N.D.Ill. 1976); Heinold Commodities, Inc. v. McCarty, 513 F. Supp. 311, 313 (N.D.Ill. 1979); State Farm Fire & Casualty Co. v. Estate of Caton, 540 F. Supp. 673, 676 (N.D.Ind. 1982); Parnes v. Heinold Commodities, Inc., 487 F. Supp. 645, 647 (N.D.Ill. 1980).
Next, I find that the deposition of Andrew Reynolds is admissible under Rule 801(d)(2)(D) and (E) of the Federal Rules of Evidence. I find further that for these purposes Reynolds was both an agent of Local 560 and a co-conspirator of the Provenzano Group defendants herein. Andrew Reynolds, while a business agent of Local 560, was generally empowered to exercise independent judgment and discretion concerning the contractual affairs of Local 560. He acted free of close supervision concerning these matters. While not authorized to carry out certain functions reserved to the officers of Local 560, such as the formal signing of contracts, it is uncontested that business agents can and do negotiate contracts, organize unorganized jobs and handle grievances on behalf of the members they represent. I thus find that Andrew Reynolds was, during his tenure as Business Agent, a managing agent within the meaning of Fed. R. Civ. P. 32(a)(2). See Krauss v. Erie R.Co., 16 F.R.D. 126, 127 (S.D.N.Y. 1954).
Finally, I find that I need not reach the issue of the admissibility of the results of the Galagarza lie detector test. I have, on other grounds, found that Galagarza's testimony at trial was not sufficiently credible to permit a finding (by even a fair preponderance of the evidence) that Thomas Reynolds committed the murder of Walter Glockner.
There have been numerous legislative attempts to control labor racketeering at both the state and federal levels. Federally, these have included the LMRDA, 29 U.S.C. § 411, the Hobbs Act, 18 U.S.C. § 1951, see, e.g., United States v. Palmiotti, 254 F.2d 491 (2d Cir. 1958), the Taft-Hartley Act, 29 U.S.C. § 186, and various other statutory enactments, such as 29 U.S.C. § 501(c) (prohibiting embezzlement from labor organizations) and 18 U.S.C. § 664 (prohibiting embezzlement from employee benefit plans).
A major stumbling block in prosecutions under each of these statutes has been the difficulty in demonstrating the nature and specific elements of the alleged illegal activity in the context of ongoing syndicated or organized crime. See Blakey and Goldstock, "'On the Waterfront': RICO and Labor Racketeering, 17 Am. Crim. L. Rev. 341, 367-47 (1980). As they have noted:
Labor racketeering is not a single crime; it includes the infiltration, domination, and use of a union for personal benefit, generally by members of various organized criminal groups. Labor racketeering thus comprises both traditional overt physical crime and more sophisticated covert white-collar offenses. The challenge of law enforcement has been to demonstrate that relationship -- the invidious nature of white-collar crime when committed by a criminal group as an element of a pattern of racketeering activity.