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RACKETEERING
Monday, May 13, 2002
Page 3
Court Could Consider Tapes in Enjoining Harassment—C.A.
By a MetNews Staff Writer
A documentary tape on restoration of the Malibu pier that recorded a contractor’s threats against his partner could be used to obtain a harassment injunction, this district’s Court of Appeal has ruled. The court agreed with the trial judge that gunnite contractor Anthony Federico, who threatened to shoot Bruce Darian and his dog if he lost money on the project, could be enjoined from harassing Darian, as could contractor Ronald Federico, who smashed Darian’s camera equipment on the job site. Darian, whose company was part of a joint venture with Ronald Federico’s firm in a state contract to restore the pier after damaging winter storms, was constantly filming and taping the work. After the threats and assaults, he went to Los Angeles Superior Court to seek an order that neither Federico “contact, molest, harass, attack, strike, threaten, sexually assault, batter, telephone, send any messages to, follow, stalk, destroy the personal property of, disturb the peace of, keep under surveillance or block movements” of Darian and introduced one of his tapes into evidence. The Federicos said admission of the tapes violated Penal Code Sec. 632, which bars surreptitious recording of private conversations. Retired Judge Julius M. Title, sitting on assignmnent, allowed the evidence in, reasoning that the conversations that were recorded could not be considered confidential because everyone knew Darian was recording everything. In an unpublished opinion for Div. Seven Thursday, Presiding Justice Mildred Lillie agreed. The justice noted that the tapes were made on the job site in the presence of lifeguards and project workers. She also pointed out that on one occasion Anthony Federico asked Darian three times, “Got your tape recording on?” “Here the evidence established that the conversations took place on a construction site in the presence of other people,” Lillie said. “Additionally, there was evidence that the Federicos were aware that their conversations were being recorded. Substantial evidence supports the trial court’s finding that the conversations were not confidential and that the Federicos could have no objectively reasonable expectation of privacy.” The case is Darian v. Federico, B141541.
Copyright 2002, Metropolitan News Company
EIGHTH CAUSE OF ACTION AGAINST DEFENDANTS LISTED BELOW:
VIOLATION OF 18 USC §1961 - 1968 - CIVIL RICOM
Cause of Action for Racketeering Influenced and Corrupt Organization (RICO) 18 U.S.C. § 1964 (c-d)
ACCENT CONDUCT:
946. Extortion: R.R. FEDERICO told Relator on or about October 29, 1999, that if Relator did not give him $25,000 or sign over Relator's authority over the Malibu Pier Project (hereinafter "the Project") that A.L. FEDERICO would "break [Relator's] legs." He also told Relator that "Tony (A.L. FEDERICO) is Italian and if you keep f—ing with Tony, [Relator] will end up at the bottom of the ocean with cement boots on." Relator believed this comment to mean that if Relator did not pay R.R. FEDERICO the demanded money or sign over his authority over the Project, he would be killed. Further, on or about November 10, 1999, R.R. FEDERICO Stated to Relator after Relator complained about R.R. FEDERICO's threats to harm Relator, "So what, I'll threaten you right now. I want to kill you right now." Realtor believed that R.R. FEDERICO was capable and desirous of having Relator harmed if he did not relinquish control of the Project to ACCENT. The conduct of R.R.. FEDERICO in using a threat of bodily injury to induce fear in Relator to obtain money or property is a felony under California Penal Code Section 519.
ENTERPRISE:
947. The Defendants in the instant cause of action created an enterprise formed for the purpose of extensive development in MALIBU CITY, including the civic center and Malibu pier project, which required mass destruction of the environment to accomplish. By establishing the association of sub-contractors, developers, and other agents of the State, including the assistance of the SHERIFF, acting as a private enforcement entity for the goal of the enterprise, the enterprise could accomplish the extensive development and bilk the State out of thousands of unearned dollars through over billing practices, bid rigging and self dealing, unlicenced work., and environmental crimes.
948. At all times relevant herein, R.R. FEDERICO was acting with such a unity of interest with ACCENT, that through ACCENT, he was able to direct the conduct of the enterprise. R.R. FEDERICO is the son of A.L. FEDERICO who is the president of GUNITE and is the qualifier for the license that R.R. FEDERICO uses to conduct business on behalf of ACCENT. A.L. FEDERICO has direct supervision responsibilities over R.R. FEDERICO and controls the actions of R.R. FEDERICO and ACCENT because of that relationship.
949. All of the acts committed by ACCENT and R.R. FEDERICO were in furtherance of the common goal of all defendants and the association with an enterprise of sub-contractors acting in concert with ACCENT and R.R. FEDERICO to further the scheme to acquire the control of the Project. The acquisition and control of the Project included the interstate acquisition of materials from the State of Oregon necessary to complete the Project and therefor affected interstate commerce.
950. The enterprise for mass development of MALIBU CITY and the Malibu pier is an ongoing enterprise in that the concession, entertainment, and fishing value of the pier, for which R.R. FEDERICO planed on acquiring rights, is ongoing. Additionally, ACCENT and GUNITE stand to realize pecuniary gain from lucrative contracts for work in the mass development of MALIBU CITY, which will necessitate further environmental crimes including discharge of pollution into the coastal waters, destruction of rare costal wetlands, and destruction of flora and fauna in the Malibu Lagoon, which is regulated ultimately by the EPA.
PATTERN/PREDICATE ACTS:
951. Mail and Wire Fraud: As a further example of ACCENTS predicate acts of felonious conduct, as a scheme to deprive Relator of his business profits and defraud the State government of funds, on or about October 4, 1999 R.R. FEDERICO sent fraudulent contracts via the United States mail with the intent to further their scheme. R.R. FEDERICO was aware at the time that he sent the mail that the contracts were fraudulent because he was aware that ACCENT was a joint venture with Darian Construction Co. and ACCENT had no authority to act alone in securing contracts. The contracts sent by R.R. FEDERICO to the sub-contractors were solely in the name of ACCENT with the intention that the sub-contractors would rely on the contracts and sign them, giving ACCENT ostensible authority to bind the joint venture. Additionally, on or about October 4, 1999, R.R. FEDERICO called the sub-contractors on the telephone and told them to sign the fraudulent contracts to induce the sub-contractors to comply with his scheme to defraud Relator out of the benefit to his company of the contract for the Project.
952. Conspiracy to obstruct justice: On or about May 2, 2000, R.R. FEDERICO caused to be transmitted via facsimile, a fraudulent purchase order for pilings purchased from Wright & Associates dated September 15, 1999, to the Los Angeles County Sheriff's station in Lost Hills for the purpose of colluding with the SHERIFF into falsely arresting Relator by misrepresenting through the fraudulent documents that ACCENT owned the piles that Relator had marked with paint to photograph creosote leaking from the improperly wrapped piles. This was done with the intent to assist the SHERIFF with falsely arresting Relator for the crime of vandalism. The SHERIFF was aware at the time of Relator's arrest that Relator was not vandalizing his own property. R.R. FEDERICO was under an order from the Superior Court of California, L.A. COUNTY, prohibiting R.R. FEDERICO from harassing Relator. The SHERIFF was also aware of said injunction at the time of Relator's false arrest. R.R. FEDERICO was aware at the time he transmitted the fraudulent document that the pilings had actually been ordered by Relator and the genuine purchase order had been signed by Relator. Using the facsimile to transmit a fraudulent document with the intention of accusing Relator of a crime with the purpose of inducing Realtor to pay money or forfeit his right to pecuniary gain for his company is a felony under California Penal Code § 523. Additionally, by conspiring with the SHERIFF to have Relator falsely arrested, they acted unlawfully and said act is punishable as a felony under California Penal Code § 182.
953. Injury to plaintiff's business and/or property. Because of R.R. FEDERICO and ACCENT's felonious acts, Relator's business interest has been damaged. Relator's construction company, Darian Construction, ceased to enjoy any income from the Project after approximately a year of preparation and planning prior to ACCENT's involvement in the Project. To date, Relator has not been paid for the work on the Project which would have been a minimum amount of $150,000.00 had Relator been allowed to complete the job as contracted. Additionally, Relator has been unable to recoup his direct, out of pocket expenses in a minium amount of $15,000.00. The Relator's business has also realized competitive damage directly related to the pattern of conduct of all defendants in this cause of action because Darian Construction's reputation and standing in the business community suffered from the stigma attached to the failed Project. Additionally, another company has been given the job to complete the Project.
954. The Government interest was harmed when the government paid well in excess of the fair value for the work performed and the final product was substandard. As was evident in 1903 in Santa Monica, substandard work on the pier caused damage which required that the entire pier be demolished when the pier suffered damage from defective work on the very day the pier was opened to the public in 1903. N ow, the pier in Malibu is already showing signs of the ramifications of substandard work and in 2003, 100 years later, will eventually require demolition because the piles continue to pollute the ocean and the defective work will cause the pier to fail.
GUNITE
CONDUCT:
955. Extortion: On or about October 27, 1999, A.L. FEDERICO told Relator that if Relator did not "have $25,000 by Friday, I will be your worst nightmare." On or about November 1, 1999, A.L. FEDERICO told Relator "I hate your f-ing guts... if you don't pay the money, I will have two Mexicans with baseball bats here tomorrow morning." On or about November 2, 1999, the supervisor for GUNITE, Hunt Woodman, told Relator that "you're a marked man." Relator had a well founded belief that if he did not pay the money or leave the job, he would be injured or killed. Relator eventually sought an order from the Los Angeles County Superior Court enjoining A.L. FEDERICO from civil harassment of Relator. The Superior Court issued the requested injunction. The conduct of A.L. FEDERICO in using a threat of bodily injury to induce fear in Relator to obtain money, property or to forfeit a legal right, is a felony under California Penal Code Section 519.
PATTERN/PREDICATE ACTS:
956. On several occasions between May and August 1999, A.L. FEDERICO threatened to shoot Relator if the Joint Venture lost money on the Project. Relator had a reasonable fear for his safety based on these terrorist threats . A.L. FEDERICO'S threats to commit the crimes of assault, battery and/or great bodily injury or death, and thereby putting Relator in a reasonable, sustained fear for his safety may be punished as a felony under California Penal Code Section 422.
957. At all times relevant herein, A.L. FEDERICO was acting with such a unity of interest with GUNITE, that through GUNITE and ACCENT, he was able to direct the conduct of the enterprise. R.R. FEDERICO, the president of ACCENT, is the son of A.L. FEDERICO who is the president of GUNITE and is the qualifier for the license that R.R. FEDERICO uses to conduct business on behalf of ACCENT. A.L. FEDERICO has direct supervision responsibilities over R.R. FEDERICO and controls the actions of R.R. FEDERICO ,GUNITE and ACCENT because of that relationship.
958. All of the acts committed by GUNITE and A.L.. FEDERICO were in furtherance of the common goal of all defendants and the association with an enterprise of sub-contractors acting in concert with GUNITE, ACCENT, R.R. FEDERICO, and A.L. FEDERICO to further the scheme to acquire the control of the Project. The acquisition and control of the Project included the interstate acquisition of materials from the State of Oregon necessary to complete the Project and therefor affected interstate commerce.
959. The enterprise for mass development of MALIBU CITY and the Malibu pier is an ongoing enterprise in that the concession, entertainment, and fishing value of the pier, for which R.R. FEDERICO planed on acquiring rights, is ongoing. Additionally, ACCENT and GUNITE stand to realize pecuniary gain from lucrative contracts for work in the mass development of MALIBU CITY, which will necessitate further environmental crimes including discharge of pollution into the coastal waters, destruction of rare costal wetlands, and destruction of flora and fauna in the Malibu Lagoon, which is ultimately regulated by the EPA.
960. Injury to plaintiff's business and/or property. Because of A.L. FEDERICO and GUNITE's felonious acts, Relator's business interest has been damaged. The enterprise these defendants engaged in with the intention of wresting control of the Project from Relator, the only person holding the valid license to conduct the construction activities on the Project, was done with the sole intention of collecting government funds to which they were not entitled. In conducting this enterprise, doing all of the egregious acts complained of herein, and preventing Relator from remedying and mitigating their unlawful violations on the Project, the defendants acts and the acts of those defendants who conspired to further those acts, caused Relator loss to his business in an amount to be determined, but in no event less than $150,000.00. Relator's construction company, Darian Construction, ceased to enjoy any income from the Project after approximately a year of preparation and planning prior to GUNITE's involvement in the Project. To date, Relator has not been paid for the work on the Project which would have been a minimum amount of $150,000.00 had Relator been allowed to complete the job as contracted. Additionally, Relator has been unable to recoup his direct, out of pocket expenses in a minium amount of $15,000.00. The Relator's business has also realized competitive damage directly related to the pattern of conduct of all defendants in this cause of action because Darian Construction's reputation and standing in the business community suffered from the stigma attached to the failed Project. Additionally, another company has been given the job to complete the Project.
961. The Government interest was harmed when the government paid well in excess of the fair value for the work performed and the final product was substandard.
CONSPIRACY 18 USC § 1962 (d):
962. The following defendants conspired to violate 18 USC § 1962 (c) from the time periods
referenced in the paragraphs above. The object of the conspiracy was to further the enterprise of
mass development of MALIBU CITY, the Malibu pier Project and the acquisition of pecuniary gain
from fraudulent and unlawfully over charging the government sums of money they were not entitled to
collect, either because they did not hold a valid license to perform the work, and/or the work was
not performed at all, and/or was substandard when completed. The conspirators acted in furtherance
of their motive for monetary gain or other favor in the exploitation of the environmental ecosystem of
the Malibu coastline and wetlands in violation of federal law.
963. Each overt act is set out in detail in the above referenced paragraphs. The parties to the
agreements to commit the unlawful action and cause damage to Relator and the United States is
more fully set forth in the referenced paragraphs. Each defendant listed below had a single plan with
one or more of the other co-conspirators with the shared objective of gaining control over the
Project, mass development of MALIBU CITY, pecuniary gain at the expense of destruction to the
environment, and other favor to be gained by cooperating with the other co-conspirators.
Defendants, and each of them, did an overt act or knew one of their co-conspirators would do an
overt act in furtherance of the common scheme or enterprise. The resulting damage to Relator and
the United States was a direct result of the conspiracy of the named defendants.
ACCENT
A.L. FEDERICO
R.R. FEDERICO
GUNITE
INTERNATIONAL
DCA
PATRICK
FYFE CO.
ED FYFE
FIBRWRAP
ED FYFE
CARR, GENERAL MGR.
BOOKOUT
HAROLD BOOKOUT
ARROW
DA
HERSCOWITZ
WILSON
KIMMEL
MILLER
BACA
SHERIFF
O'BRIEN
BRADSTOCK
MAY
MASSONE
DEMERY
GAVINE
PETTWAY
SIENER
GARCIA
AREIAS
LA FRANCHI
TODD
ATKINSON
WICK
CARVER
STEPHENS
BARTON
BARNETT
BROWN
ALBERTI
HENKEL
LANGLEY
HARDS
LAMBERSON KOSTER
GANNUSCIO
AIG
KELLY
NATIONAL UNION
MALIBU COURT
CALABASAS LANDFILL
WIPPERT
TAPIA
COLBAUGH
LEMIEUX
PEPPERDINE
P. PHILLIPS
DICKERSON
W. PHILLIPS
SANTA MONICA COURT
L.A. COUNTY |