Full opinion text
MEMORANDUM OPINION ■ AND ORDER HAIGHT, Senior District Judge: Anthony D. Fiorino appeals from a decision of an Independent Hearing Panel, convened pursuant to the Consent Decree entered in this case, sustaining certain charges preferred against Fiorino by the Investigations and Review Officer. The District Council supports Fiorino in his appeal, pursuant to a prior order of the Court granting the District Council limited standing to do so. I Familiarity with the Court’s prior opinions is presumed. For present purposes, it is sufficient to say that in September 1990, the government filed a civil RICO action for injunctive relief against the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (the “District Council”) and certain of its officers. The government alleged that the individual defendants and others had engaged in a variety of forms of labor racketeering, and that the operations of the District Council and its constituent local carpenters’ unions had been infected by organized crime. During trial, the parties entered into a Consent Decree dated March 4, 1994. To implement its terms, an Investigations and Review Officer (“IRÓ”) and a five member Independent Hearing Committee, all agreed to by the parties in the Consent Decree, were appointed. ¶3. The IRO has “the same right to initiate disciplinary charges against any member of the District Council and its constituent locals as has any officer or member of the District Council or its constituent members.” Consent Decree, ¶ 4(b). The IRO commences a disciplinary proceeding by filing a charge in accordance with procedures set forth in the Consent Decree. Disciplinary hearings are held before a three-member Independent Hearing Panel, drawn from the five-member Independent Hearing Committee. Id. “The hearing shall be held under the rules and procedures generally applicable to labor arbitration hearings.” ¶ 4(c). “Any decision of an Independent Hearing Panel is final and binding, subject to review by this Court---- In reviewing such decisions, the Court shall apply the same standard of review applicable to review of final agency action under the Administrative Procedure Act.” ¶ 6. In written specifications dated December 5, 1994, the IRO brought eight charges against Fiorino. These charges accused Fiorino of engaging in improper conduct, committing offenses “discreditable to the Union,” or violating the Consent Decree. Each of the charges alleged that Fiorino’s specified conduct transgressed provisions of the national labor laws, the By-Laws of the District Council, the Constitution of Local Union 257 (of which Fiorino was a member), or the Consent Decree. Each charge did not allege violations of all of these sources of authority. The particular charges giving rise to this appeal are quoted supra. For introductory purposes, it is sufficient to say that an Independent Hearing Panel (“the Panel”) conducted hearings, received evidence, considered the submissions of counsel, and rendered a decision. The Panel unanimously held that the proof sustained Charges One, Five, Six, Seven and Eight. A divided Panel upheld Charge Two. The Panel unanimously held that Charges Three and Four had not been proven. On Charges One and Two, the Panel imposed upon Fiorino the penalty of expulsion from the union for life. Varying periods of suspension were imposed for the other charges that were upheld. Fiorino appeals from those parts of the Panel decision adverse to him. ’ He is supported by the District Council to the extent permitted by the Court’s prior orders. II Fiorino and the District Council contend that the decision of the Independent Hearing Panel must be vacated because of the presence on the Panel of Alan R. Kaufman, one of the five attorneys constituting the Independent Hearing Committee. . The District Council says that it would not have agreed to Kaufman’s presence on the Independent Hearing Committee if Kaufman had disclosed his legal representation of one Roger Levin, an attorney specializing in labor union matters. Fiorino and the District Council base their argument for vacatur of the Fiorino decision upon Kaufman’s representation of Levin. The District Council takes the proposition one step further and contends that Kaufman should be removed from the Independent Hearing Committee. A The issue is an important one. I have considered all the submissions. They include the five briefs filed on this appeal; Kaufman’s affirmations dated November 17, 1995 and February 12,1996; the letter dated February 23, 1996 from Fiorino’s counsel, commenting on Kaufman’s second affirmation; and the letters submitted by the government dated February 8, 1996, by the District Council dated February 9,1996, and the IRO dated March 12, 1996. Lastly, familiarity is presumed with respect to the Court’s Memorandum Opinion and Order dated March 20, 1996, which rejected the District. Council's contention that while the Fiorino appeal was sub judice, Kaufman should not sit on any other Independent Hearing Panels. I begin the factual analysis with the two Kaufman affirmations. Fiorino and the District Council disagree with the conclusions Kaufman expresses in those submissions and the inferences he draws from them; but, with the exception of one factual assertion to which I will come, there, is no basis in the record to disbelieve Kaufman’s description of the timing and scope of his legal representation of Roger Levin. Roger Levin and the law firm he controlled, Levin & Weissman, represented a number of local labor unions and their affiliated benefit funds. Those unions included the Mason Tenders District Council of Greater New'York (the “Mason Tenders”); the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (the “District Council” that is a party in the casé at bar); and the Bricklayers District Council 95 of Greater New York (the “Bricklayers”). The United States Attorney for this District charged Levin with conspiring to pay and paying monies to union officials to obtain and retain that legal work, and failing to report such payments, in violation of 18 U.S.C. §§ 371 and 29 U.S.C.A. 1023(b)(3)(D). Levin agreed to plead guilty and signed a cooperation agreement with the United States Attorney dated September 2,1994. Kaufman did not represent Levin in his negotiations with the Federal government. A criminal defense lawyer named Frederick P. Hafetz did so. Kaufman’s representation of Levin had begun at an earlier date. In the summer of 1993, Levin received a grand jury subpoena from the New York Country District Attorney’s office ordering him to appear and testify concerning that office’s investigation into Local 2 of the Plumber’s Union, its affiliated benefit plans, and one Louis Moscatiello. Levin retained Kaufman to represent him in that matter. On August 16,1993, at 4:00 p.m., Kaufman appeared in chambers before Judge Carey, who was supervising the grand jury. Also present were Larry Kravitz, a Levin & Weissman attorney, and Assistant District Attorney Carbone. Carbone wanted Judge Carey to rule on claims of attorney-client privilege that Levin raised during informal questioning by Carbone. Kaufman explained to Judge Carey the nature of his representation of Levin and the circumstances under which he. advised Levin with respect to a possible invocation of the attorney-client privilege in the context of Levin’s contacts with Local 2 of the Plumbers Union. Kaufman told Judge Carey that the Assistant District Attorney “made a decision that they were not going to apprise Mr. Levin and his counsel as to the subject matters that were going to be covered here. The only thing that we were told is that it would involve Local 2 and it would involve the industry board of the plumbers.” Transcript of August 16, 1993 in camera hearing at JMS 9. Kaufman explained to Judge Carey that “[tjhere was á bit of confusion on our part as to what relationship he was talking about, because these other relationships did exist.” Id. at JMS 10. Kaufman and Kravitz then left chambers and Carbone spoke with Judge Carey alone. Carbone advised the judge that “the primary 'area we intend to ask [Levin] about” was Levin’s conversations with Moscatiello about Local 2 of the Plumbers Union. Id. at JMS 16. Accompanied by Kaufman, Levin testified before the state grand jury on August 17 and September 2, 1993. Fiorino includes in his papers on appeal several pages from Levin’s grand jury testimony. Levin was asked whether he had any discussions with Moscatiello about one Vinny DiNapoli, and whether Levin had heard that Moseatiello and DiNapoli were associated with the Genovese organized crime family. In March 1994, Kaufman accepted appointment as a member of the Independent Hearing Committee under the Consent Decree. The state ease involving Levin and Local 2 of the Plumbers Union was quiescent during the rest of 1994. Levin had other problems, but other attorneys represented him . with respect to them. Thus in May 1994, Levin asked the firm of Fried Frank Harris Shriver & Jacobsen to represent him in connection with a civil RICO case involving the Mason Tenders Union. As noted, Frederick Hafetz represented Levin in his negotiations with the United States Attorney. Levin’s cooperation agreement with the government, negotiated by Hafetz, resulted inter alia in Levin submitting an affidavit dated October 24, 1994 on behalf of the government in an action it commenced in this Court against the Mason Tenders District Council of Greater New York before Judge Sweet. 94 Civ. 6487. Fiorino submits a copy of that affidavit on this appeal. ■ Kaufman had nothing to do with Levin’s negotiations with the United States Attorney, and was not advised of the information given by Levin to the government. In November 1994, the District Attorney’s office told Kaufman that Levin would be subpoenaed to testify at the state trial of Moseatiello. In December 1994 Kaufman learned that he would be a member of the Independent Hearing Panel that would consider the charges against Fiorino. In point of fact, Kaufman chaired that Panel. The other members were Paul J. Curran and Patrick J. Barth. The Panel received evidence on March 20-23, March 28, March 30, April 5-6, April 10, and April 13,1995. Post-hearing main briefs were exchanged on May 15, 1995, and reply briefs on June 5, 1995. The Panel heard oral argument on July 6, 1995, and decided the case on September 28, 1995. On April 24 and 25,1995, Levin testified at the Moseatiello trial, before Justice Bernard Fried and a jury. Kaufman, representing Levin, was present in the courtroom. Fiorino submits the transcript of Levin’s testimony on this appeal. It comprises pages 1101 through 1341 of the trial record. The appellate briefs for Fiorino and the District Council focus upon testimony Levin gave about one Ralph Coppola. The IRO’s first charge against Fiorino, which the Panel upheld in pertinent part, included an allegation that Fiorino “knowingly associated with members and associates of the Genovese Family, namely Liborio Bellomo and Ralph Coppola.” At the Moseatiello trial, Levin explained the circumstances of his introduction to Coppola by Moseatiello, Coppola’s relationship with Moseatiello, and Levin’s representation of Coppola.- Levin then testified that Coppola was a member of organized crime, specifically the Genovese family, and that when Levin first met Coppola, Coppola was a member of the New York City District Council of Carpenters and a shop steward at the Javits Convention Center. Tr. 1132-33., In the light of that testimony, Kaufman can no longer sustain the statement in ¶ 9 of his November 17,1995 affirmation that at the Moseatiello trial “[n]othing occurred which in the remotest way had anything to do with the District Council of Carpenters or with Fiorino.” Kaufman deals with that statement in ¶ 8 of his subsequent February 12, 1996 affirmation: Clearly, I was in error when I stated in my earlier affirmation that “[n]othing occurred [in the Moseatiello trial] which in the remotest way had anything to do with the District Council of Carpenters or with Fiorino.” Now that I have seen a portion of the trial transcript, obviously there was some passing reference to Ralph Coppola and the Carpenters. At the time I submitted my affirmation, I had no recollection of that. I still have no recollection of it. It evidently had no significance to me. It meant nothing in connection with the Moscatiello trial, and while I presumably recognized Coppola’s name since the Fiorino hearing had concluded some eleven days earlier, it had no bearing on that matter to me. Post-hearing briefs were still to be submitted. Closing arguments were yet to come. As I recall, Coppola’s status as a member or associate of organized crime was not a hotly contested issue. Indeed, it was undisputed at the Fiorino hearing that Coppola had been removed from his position as Chief Steward at the Javits Center by the District Council for being associated with organized crime. Kaufman concludes his February 12, 1996 affirmation with these assertions: Most importantly, it presented no conflict for me. Whatever decision the Panel was going to reach in the Fiorino matter had nothing whatsoever to do with my representation of Roger Levin. Finding against Fiorino could in no way benefit Levin. Finding for Fiorino could in no way hurt Levin. There was no connection. There was no partiality. B A considerable number of cases consider the circumstances under which a factfinder, intended to be impartial, must be disqualified. The two most.fertile sources of jurisprudence are arbitration and litigation. Where an arbitration falls within the Federal Arbitration Act,-9 U.S.C. §§ 1 et seq., the district court may vacate an arbitration award where there was “evident partiality” on the part of an arbitrator. 9 U.S.C. § 10(b). In litigation, a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a): Proceedings before an Independent Hearing Panel convened pursuant to the Consent Decree do not constitute, strictly speaking, either arbitration or litigation. The briefs of coúnsel on this appeal cite cases derived from both areas. But I think that the arbitration context more closely resembles the proceeding at bar. The Independent Hearing Committee was created by the parties’ agreement, as expressed in. the Consent Decree. The parties chose the five members of that Committee. Those circumstances more closely resemble consensual arbitration before agreed-upon arbitrators than litigation, which is entirely non-consensual and in which the identity of the trial judge depends upon the luck of the draw, rather than the parties’ selection. Accordingly, I will evaluate Fiorino’s challenge to Kaufman’s presence on the Panel by referring to cases involving arbitration. In the arbitration context, “evident partiality” under 9 U.S.C. § 10(b) does not “require proof of actual bias.” The rule in the Second Circuit is that “evident partiality” exists “where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.” Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds, 748 F.2d 79, 84 (2d Cir.1984). It follows that even if one accepts Kaufman’s assertions of lack of personal partiality at face value, that is not decisive. The ease turns upon whether a reasonable person would have to conclude that Kaufman was partial in favor of the IRO and against Fiorino. The test to be applied “is an objective one which assumes that a reasonable person knows and understands all the- relevant facts.” In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir.1988) (emphasis in original), reh’g denied, 869 F.2d 116 (2d Cir.), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). Drexel construed the judicial recusal statute, 28 U.S.C. § 455(a), but there is no principled reason not to apply the same characteristics of the reasonable person in the litigation context to his counterpart in the context of arbitration or Hearing Panel proceedings. In the case at bar, the reasonable person that I must hypothesize is aware of the timing and scope of Kaufman’s representation of Roger Levin, as revealed by the record on the appeal. That reasonable person is also able to disregard conjecture, speculation or conclusory arguments which find no support in the record. I conclude that Fiorino and the District Council have failed to show that “a reasonable person would have to conclude” that, as the result of his representation of Levin, Kaufman was partial to the IRO and impermissibly inclined against Fiorino. C The briefs for Fiorino and the District Council consistently exaggerate the timing and scope of Kaufman’s representation of Levin. To do so, they indulge in speculation and conjecture, either unsupported by the record or at times flying in its face. An example appears in the letter response of Fiorino’s counsel to Kaufman’s second affirmation. Counsel, argues that Kaufman “must have reviewed that Federal cooperation agreement and had discussions with the Federal authorities and the attorney who negotiated the Federal cooperation agreement.” Letter dated February 23,1996 at 2. That argument is premised upon counsel’s statement that Levin received from the state prosecutors a grant of immunity “coextensive with the immunity conferred upon him in his Federal cooperation agreement.” Id. Substantial contacts between Kaufman and the Federal prosecutors might be significant if they had occurred, since the government does not disguise its interest, bordering on the avid, in the IRO’s charges against Fiorino. But the Moseatiello trial record does not support Fiorino’s inference. The concept of a “coextensive” immunity was raised in a question Justice Fried put to Levin in the jury’s presence: THE COURT: I think I’m going to not need you to approach but I can just simply ask you a question. Talk to the jury. Mr. Levin, did you receive immunity in this Courthouse, this morning, which was coextensive or the equivalent of what you have received from the United States government? A. Yes. THE COURT: And that was here in this Courtroom today? THE WITNESS: Yes. Tr. 1118. While Levin testified on redirect examination that he believed he received immunity from the District Attorney’s Office “only at the end of last week,” Tr. 1313, there is nothing in this testimony that casts doubt upon Kaufman’s assertions, more pertinent to this appeal, that he played no part in Levin’s relationship with the Federal prosecutors, either before, during or after those events. Similarly, Fiorino’s reply brief at 2-3 is phrased to suggest that Kaufman participated in the entire hearing before Judge Carey prior to Levin’s appearance before the state grand jury. In point of fact, as the minutes of that hearing show, Kaufman was excused from the Judge’s chambers after a preliminary exchange, and the conversations of substance between the prosecutor and the judge took place in Kaufman’s absence. Fiorino’s reply brief at 3 also sets forth the substance of Levin’s declaration of October 24, 1994 in the Mason Tenders ease pending before Judgé Sweet. But Kaufman did not represent Levin in connection with that proceeding and had nothing to do with the preparation of the declaration. The only aspect of Kaufman’s representation of Levin requiring discussion is Levin’s testimony at the Moseatiello trial about Ralph Coppola, which Kaufman heard because he was in the courtroom. As we have seen, Levin testified that Coppola held a position of responsibility in the District Council, worked at the Javits Convention Center (as did Fiorino), and was a member or associate of the Genovese crime family. Fiorino and the District Council correctly observe that the IRO, to succeed on one prong of the first charge against Fiorino, bore the burden of proving that Coppola was in fact a member or associate of an organized crime family. If Coppola’s status in that' regard was a contested issue at the Fiorino hearing, then it could be argued that Levin’s testimony about Coppola might have influenced Kaufman when he came to participate in the Fiorino decision. Arguably, in such a circumstance, Kaufman might have been predisposed to accept the testimony of his client, Levin. But this potential problem does not arise, because Coppola’s organized crime membership was not a contested issue at the Fiorino hearing. Counsel for Fiorino says in his February 23, 1996 letter at 2 that “Fiorino never conceded that Coppola was a member or associate of organized crime.” While that is true enough, it is of no consequence, since the Independent Hearing Panel members were aware from the hearing record that following his election as District Council president in August 1991, Frederick Devine removed Coppola from the Javits Center because the District Council regarded Coppola as a member of organized crime. See concurring and dissenting opinion of Panel member Patrick H. Barth at 1 (hereinafter, the “Barth Opinion”) (“Ralph Coppola was removed from his position as General Steward at the Javits Center by newly elected President Frederick Devine on August 6, 1991.... Mr. Coppola was removed by the District Council because the Council concluded that he was a member of La Cosa Nostra and he knowingly associated with Liborio Bellomo, another member of La Cosa Nostra.”). Indeed, throughout this litigation, the District Council has pointed to Devine’s dismissal of Coppola on that ground as evidence of institutional rectitude. In short, within the context of the Fiorino hearing, Coppola’s organized crime membership was a non-issue. As far as Fiorino was concerned, the Coppola-related issues were whether Fiorino knew that Coppola was a member of organized crime, and notwithstanding that knowledge, continued to associate with Coppola. These issues turned solely upon the workings of Fiorino’s mind and Fiorino’s conduct. Levin knew nothing of those matters, and consequently could have communicated nothing concerning them to Kaufman. The record on this appeal reveals that Kaufman’s representation of Levin was confined to parties, events and issues not directly implicated in the Fiorino hearing; and that Kaufman learned nothing as-the result of that limited representation which impaired his ability to act as an impartial member of the Fiorino hearing panel. I think that is the conclusion that a reasonable person, with full knowledge of the relevant facts and circumstances, would inevitably reach. The indicia of partiality which Fiorino and the District Council profess to find in the record are far too attenuated and speculative. It is instructive in that regard to contrast Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds, supra, with Local 811, International Brotherhood of Teamsters v. J & B Systems Installers & Moving, Inc., 878 F.2d 38 (2d Cir.1989). In Morelite the Second Circuit vacated an arbitration award because the sole arbitrator was the son of an official of a union involved in the controversy. The court of appeals judges, casting themselves in the roles of reasonable people, said that “we are bound by our strong feeling that sons are more often than not loyal to their fathers, partial to their fathers, and biased on behalf of their fathers.” 748 F.2d at 84. The party seeking to vacate an arbitration award in Local 81U relied upon Morelite, but without success. In Local 8H the arbitration arose out of the discharge of an employee, Angelo Braceo. The arbitration board, made up of representatives of the employer and the union, included a union representative named Frank Nareisco, who had previously refused to testify before a grand jury investigating Angelo Braeeo’s father, James Vincent Braceo. Seeking to vacate the arbitrator’s award in favor of Angelo Braceo, the employer pointed to the father-son relationship between the two Braceos, and relied upon Morelite. Rejecting that argument, the Second Circuit stated: Morelite applies to the issue of Narcisco’s alleged partiality. There is a father-son relationship in this ease, but its connection to the arbitration is more attenuated than in Morelite. Appellants invite us to assume that Nareisco refused to cooperate with the grand jury investigation in order to protect James Vincent Braceo and, further, that this requires us to assume that Nareisco would be biased in favor of Angelo Braceo. This is speculation that might suffice to show an “appearance of bias,” but it falls short of Morelite''s “reasonable person” standard. Appellants have presented no other evidence that would lead us to conclude that Narcisco was partial to Angelo Braceo. In the grand jury investigation, Narcisco could have been acting to protect himself, or one of the other targets of the investigation. Even if he was protecting James Vincent Braceo, it does not necessarily follow that his loyalty toward the father would extend to the son. 878 F.2d at 40. The Second Circuit’s analysis in Local 814. is instructive because it shows that even if grounds for speculation exist which might give rise to an appearance of bias, that is not sufficient to satisfy the “reasonable person” standard articulated in Morelite. Morelite requires that the demonstrated circumstance be such that “reasonable people would have to believe it provides strong evidence of partiality by the arbitrator.” 748 F.2d at 85 (footnote omitted). Fiorino and the District Council have not shown such circumstances with respect to Kaufman in the case at bar. In these circumstances, Kaufman was not required to disclose his representation of Levin, at the beginning of the Fiorino hearing or at any time thereafter. The District Council also complains in its main brief at 11-12 that Kaufinan failed to disclose his representation of Levin at the time of the selection of the five attorneys for inclusion in the Consent Decree as members of the Independent Hearing Committee. The District Council expresses concern because “it appears that the Government was aware of Mr. Kaufman’s representation of Mr. Levin due to Mr. Kaufinaris appearance on behalf of Mr. Levin in federal proceedings.” The Consent Decree was signed on March 4, 1994. At that time, Kaufman had done no more for Levin than accompany him to the state grand jury inquiring into a different matter. He had not represented Levin in federal proceedings, and did not do so thereafter. Kaufman owed no duty of disclosure of his representation of Levin at the time of his appointment to the Independent Hearing Committee. Accordingly, I reject Fiorino’s contention on appeal that the decision of the Independent Hearing Panel must be vacated because of Kaufinaris presence on that Panel. It follows that the District Council’s renewed effort to remove Kaufman from future panels is also denied. Ill In addition to Kaufinaris presence on the Panel, Fiorino and the District Council challenge the integrity of the hearing process on two other grounds. First, they contend that the Panel erred in failing to require certain witnesses to appear, testify, and be cross-examined, rather than receiving their affidavits into the record. A related contention is that the Panel impermissibly considered hearsay evidence. Second, Fiorino and the District Council say that the Panel erred in determining that the IRO had the burden of establishing the charges against Fiorino by a preponderance of the evidence, rather than by clear and convincing proof, the standard that appellants contend should apply. A A threshold question arises as to the scope of review this Court applies to decisions of the Independent Hearing Panel. The Consent Decree provides at ¶ 6 that in reviewing a decision of an Independent Hearing Panel, “the Court shall apply the same standard of review applicable to review of final agency action under the Administrative Procedure Act” (hereinafter “APA”). Under section 10(e) of the APA, 5 U.S.C. § 706, a reviewing court determines de novo “all relevant questions of law.” Hanly v. Kleindienst, 471 F.2d 823, 829 (2d Cir.1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973). “Our review of questions of law is plenary.” N.L.R.B. v. Greensburg Coca-Cola Bottling Co., Inc., 40 F.3d 669, 673 (3rd Cir.1994). Greensburg arose under the National Labor Relations Act, but the scope of judicial review under that statute is no different from that under the APA. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). In considering a relevant question of law under the APA, the reviewing court asks whether the agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency’s findings of fact “are entitled to affirmance on review if they are reasonable and supported by substantial evidence in the record as a whole.” N.L.R.B. v. Gordon, 792 F.2d 29, 32 (2d Cir.1986). The APA “permits agency findings to be set aside only if they are ‘unsupported by substantial evidence;’ ” United States v. International Brotherhood of Teamsters (Cimino), 964 F.2d 1308, 1311 (2d Cir.1992) (quoting 5 U.S.C. § 706(E)). “Substantial evidence is more than a mere scintilla,” Cimino at 1311— 12, but “something less than the weight of the evidence, and- the substantial evidence standard may be met despite the possibility of drawing two inconsistent conclusions from the evidence.” United States v. IBT (DiGirlamo), 19 F.3d 816, 820 (2d Cir.) (citations and interior quotation marks omitted), cert. denied, — U.S. -, 115 S.Ct. 199, 130 L.Ed.2d 130 (1994). “The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 464. In Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966), the Supreme Court defined substantial evidence as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. This is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. (citations and internal quotations omitted). In the case at bar, the propriety of the method in which the hearing was conducted raises questions of law that the Court will consider de novo. The sufficiency of the evidence against Fiorino will turn upon the substantial evidence rule. B Fiorino and the District Council base their objections to the procedures followed by the Panel upon a provision in the Consent Decree that such disciplinary hearings “shall be conducted under the rules and procedures generally applicable to labor arbitration proceedings.” ¶ 4(c)(5). They quote various arbitration rules of procedure, a textbook, and an affidavit submitted by a “remowned arbitrator,” Daniel G. Collins, as support for the proposition that affidavits of witnesses not tested by cross-examination cannot constitute substantial evidence. Appellants appear to argue for a per se rule excluding from the record affidavits or statements from witnesses who do not appear at the hearing and undergo cross-examination. While I consider this question de novo, I do not write upon a clean slate. The Second Circuit has addressed the issue within the context of a comparable consent decree entered in the IBT litigation. In United States v. IBT (Adelstein), 998 F.2d 120, 124-25 (2d Cir.1993), the Court of Appeals squarely held that hearsay declarations were admissible at a disciplinary hearing, provided there were sufficient indicia of reliability. DiGirlamo, 19 F.3d at 823, reached the same conclusion, citing Adelstein, and observing: “Hearsay statements may gain reliability by corroborating one another or by including specific details.” See also United States v. IBT (Wilson, Dickens and Weber), 978 F.2d 68, 72 (2d Cir.1992). The IRO says these decisions, generated by the IBT consent decree, are controlling in the case before me. I agree. The District Council protests in its Reply Brief at 20 that it “agreed to be bound by its Consent Decree, not the Teamsters litigation.” That protest might have substance if there were material differences between the two consent decrees. However, the IBT consent decree, filed on March 14, 1989, also provides that disciplinary hearings thereunder “shall be conducted under the rules and procedures generally applicable to labor arbitration proceedings.” ¶ 12(A)(e). Accordingly there is no principled basis for distinguishing these Second Circuit cases on the facts. I am bound by them as a matter of law. The District Council argues that the Second Circuit’s IBT decisions did not give sufficient consideration to labor arbitration principles. That argument must be addressed to the Court of Appeals. C The IBT consent decree litigation has also involved the issue of whether an officer such as the IRO must prove disciplinary charges by a preponderance of the evidence, or by clear and convincing proof. - Under the IBT consent order, the court officer performing the functions of the Independent Hearing Panel in the case at bar is called the “Independent Administrator” (hereinafter “Administrator”). Another court officer, the Investigations Officer, “is granted authority to investigate corruption and prosecute disciplinary charges against any officer, member or employee of the IBT or any of its affiliates.” United States v. IBT (Friedman and Hughes), 905 F.2d 610, 613 (2d Cir.1990). That is the function of the IRO in the case at bar. As does an Independent Hearing Panel in the instant case, the IBT Administrator “sits as an impartial decisionmaker in disciplinary cases brought by the Investigations Officer, conducts the disciplinary hearings and decides them.” Id. Friedman and Hughes were “the first two IBT officials charged and tried under the remedial scheme created by the Consent Decree.” Id. They appealed from the Administrator’s decision suspending them from union office, a ruling upheld on review by the District Court. The Second Circuit, while rejecting the government’s contention that it-lacked appellate jurisdiction, see 905 F.2d at 615-16, concluded that “the Administrator’s decisions are entitled to great deference.” Id. at 616. The Court of Appeals based that conclusion in part on the consent decree’s provisions that disciplinary hearings conducted 'by the Administrator shall be “conducted under the rules and procedures generally applicable to labor arbitration hearings”; that “[a]ny decision of the Administrator shall be final and binding,” subject to the review of the district court; and that “[i]n reviewing actions of the Administrator, the Court shall apply the same standard of review applicable to review of final agency action under the Administrative Procedure Act.” Id. at 616. As noted, precisely the same provisions appear in the Consent Decree at bar. The Second Circuit rejected the appeal of Friedman and Hughes. Friedman and Hughes turned upon a point of collateral estoppel, and did not involve an evidentiary hearing. However, in a later case, the IBT Administrator determined “that the Investigations Officer must establish just cause at disciplinary hearings by a fair preponderance of the evidence.” United States v. IBT (Salvatore), 754 F.Supp. 333, 337 (S.D.N.Y.1990). Salvatore argued to the district court that the application of this standard of proof was arbitrary and capricious. He contended that the stricter “clear and convincing” burden should be applied, in conformity with the by-laws of Local 191, of which Salvatore was. a member. Judge Edelstein upheld the Administrator’s application of the preponderance standard. He reasoned that no provision in the consent decree or the IBT constitution, which the consent decree required the Administrator to enforce, supported Salvatore’s argument. The IBT consent decree was silent on the applicable standard of proof, as is the Consent Decree at bar. Noting the broad reach of the Administrator’s power articulated by the Court of Appeals in Friedman and Hughes, Judge Edelstein viewed the -Administrator’s determination of the applicable standard of proof in disciplinary hearings as an exercise of that power, and held that Salvatore “has not demonstrated that this determination was arbitrary or capricious.”. Salvatore, 754 F.Supp. at 337. The IBT Administrator continued to apply the fair preponderance standard in a lengthy series of hearings. See, e.g., United States v. IBT (DiGirlamo), 824 F.Supp. 410, 412 (S.D.N.Y.1993), aff'd 19 F.3d 816 (2d Cir.), cert. denied, — U.S.-, 115 S.Ct. 199, 130 L.Ed.2d 130 (1994). While the Second Circuit’s IBT decisions have not addressed the standard of proof issue as explicitly as they have the admissibility of hearsay, its affirmance of a case such as DiGirlamo fairly reflects the court of appeals’ conclusion that court officers such as the IBT Administrator may validly apply the preponderance of evidence standard to disciplinary hearings under such consent decrees. That conclusion is binding on me. I apply it to affirm the application of that standard by the Independent Hearing Panel in Fiorino’s case, and to reject appellants’ argument that the charges needed to be sustained by clear and convincing proof. If I am wrong in concluding that the Second Circuit’s decisions in the IBT eases are binding on me on this issue, I would reach the same result for the reasons stated by Judge Edelstein in Salvatore. Fiorino and the District Council cannot point to any pro-, vision in the Consent Decree or applicable union constitutions or by-laws mandating the clear and convincing standard. Such support as appellants profess to glean from texts and authorities such as Mr. Collins falls far short of demonstrating that, under the Consent Decree, the Independent Hearing Panel lacked the authority to set the standard of proof as. a fair preponderance of the evidence. As a “relevant question[] of law” under the APA, 5 U.S.C. § 706, the appellants must show that the application of this standard to Consent Decree disciplinary hearings is arbitrary or capricious. They have not done so. The District Council’s effort in that regard is made harder, not easier, by the IBT litigation, which, prior to the execution of the Consent Decree in the case at bar, hac established a fair preponderance of the evidence as the applicable standard in disciplinary hearings. It would be surprising if the District Council’s able and imaginative attorneys were not aware of that ease law when the parties executed the decree in this case. But I do not rest the decision on that likelihood. I hold that the Independent Hearing Panel had the authority to apply to Fiorino’s hearing the preponderance of evidence standard. It follows that application of that standard does not furnish a basis for reversing the decision of the Independent Hearing Panel. IV It remains to consider whether the Panel’s decisions are supported by substantial evidence, as that phrase has been judicially defined by the cases cited in Part III A, supra. Charge One: Charge One of the IRO’s presentment against Fiorino reads as follows: You violated Paragraph 2(b) of the Consent Decree, your Obligation to the United Brotherhood of Carpenters and Joiners of America (“Obligation”), Section 20(B) of the Addendum Supplementary Sections to the By-Laws and Working Rules of the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (“District Council By-Laws And Addendum”), and Article V, Section 1 of the Constitution and By-Laws of Local Union 257, by engaging in improper conduct and committing an offense discreditable to the Union, TO WIT, beginning in or around August 1991, and continuing thereafter, while a member of Local Union 257 employed at the Jacob K. Javits Convention Center (the “Javits Center”), you were acting agent of the Genovese Organized Crime Family of La Cosa Nostra at the Javits Center, and knowingly associated with members and associates of the Genovese Crime Family and other Crime Families of La Cosa Nostra, including Liborio “Barney” Bellomo and Ralph Coppola. Charge One consists of two elements: Fiorino’s illicit agency on behalf of the Genovese crime family, and his knowing association with Genovese family members and associates, including Bellomo and' Coppola. The Panel correctly concluded that these two elements were not dependent on each other, so that proof of either would sustain the charge. The Panel held that the IRO faded to prove the first element, a finding from which the IRO does not appeal. But it sustained the second prong of the charge, finding that from August 199Í, Fiorino knowingly associated with Bellomo and Coppola, members or associates of the Genovese crime family. Fiorino appeals from that finding. The first alleged misconduct on this element is a violation of ¶ 2(b) of the Consent Decree. ¶ 2 of the Consent Decree provides in pertinent part: 2. Permanent Injunction against Racketeering Activity. All current and future officers, employees, and members of the District Council and its constituent locals are permanently enjoined: ... b. from knowingly associating with any member or associate of any La Cosa Nostra crime family or any other criminal group, or with any person prohibited from participating in union affairs (hereinafter collectively referred to as “barred persons”); ... Charge One also lies under Section 20B of the District Council By-Laws, and Article V, Section 1 of Local Union 257’s Constitution. These documents prohibit officers or members from committing “an offense discreditable” to the union. The IRO’s theory of the case, which the Panel accepted, is that knowing association by a union member with crime figures constitutes “an offense discreditable to” the District Council and the Local, and accordingly violates the District Council By-Laws and the Local’s Constitution. The IRO’s brief at 19-20 defends that proposition by analogizing the governing documents at bar to the IBT’s Constitution, which requires that every member “conduct himself or herself in a manner so as not to bring reproach upon the Union.” IBT members who knowingly associated with crime figures were found to have violated that provision in decisions which the Second Circuit affirmed. DiGirlamo, 19 F.3d at 819; United States v. IBT (Senese and Talerico), 941 F.2d 1292, 1294 (2d Cir.1991), cert. denied, 502 U.S. 1091, 112 S.Ct. 1161, 117 L.Ed.2d 408 (1992). Fiorino argues in his reply brief at 10 that the analogy is flawed because section 51(A) of the Constitution of the United Brotherhood of Carpenters and Joiners of America enumerates 14 “offenses” for which a union member may be punished, and “knowing association” with crime figures is not one of them. I do not think that the definition of “offenses” in the Constitution of the international union precludes the Panel from holding that knowing association with organized crime figures is “discreditable” and consequently violative of the District Council ByLaws and Local 257’s Constitution. Fiorino’s argument, carried to its logical conclusion, would grant District Council and local union members a license to engage in knowing, open and unfettered association with organized crime figures, no matter how notorious. A reasonable observer would regard such conduct as “discreditable” to the District Council and the Local, just as knowing association with .criminals was regarded as “bring[ing] reproach” upon the Teamsters Union. Indeed, in Devine’s much-publicized dismissal of Coppola from the Javits Center in August 1991, one of the stated reasons was Coppola’s knowing association with Bellomo, an organized crime figure. It follows that in measuring Fiorino’s conduct by these provisions of the By-Laws and Constitution at bar, the Panel did not act in an arbitrary or capricious manner. The remaining questions are whether substantial evidence exists in the record to sustain the Panel’s findings that during the charged time period, Fiorino knowingly associated with crime figures Bellomo and Coppola. The proof concerning these two individuals must be weighed separately. The analysis begins with the meaning of “knowing association.” An individual knowingly associates with a member or associate of an organized crime family if that individual, with knowledge of the other’s crime family status, associates with him, as that concept is defined by law. The IBT consent decree contained a prohibition identical to that quoted from ¶ 2(b) of the Consent Decree at bar. In United States v. Local 1801-1, International Longshoremen’s Association, AFL-CIO (Ciccone), 44 F.3d 1091, 1096 (2d Cir.1995), the Second Circuit had occasion to summarize the law generated on the point by the IBT litigation: The meaning of “knowingly associating” in the Teamsters'decree has been litigated on several occasions and is now well established. See United States v. International Bhd. of Teamsters (DiGirlamo), 19 F.3d 816, 822 (2d Cir.), cert. denied, — U.S. -, 115 S.Ct. 199, 130 L.Ed.2d 130 (1944); United States v. International Bhd. of Teamsters (Adelstein), 998 F.2d 120, 125 (2d Cir.1993); United States of International Bhd. of Teamsters (Cozza), 764 F.Supp. 797, 801-02 (S.D.N.Y.1991) aff'd, 956 F.2d 1161 (2d Cir.1992). Under the decisions interpreting the Teamsters consent decree, truly incidental contacts with prohibited individuals, such as encounters at weddings and funerals, are permitted, Teamsters (Cozza), 764 F.Supp. at 813 (decision of independent administrator, affirmed by district court), as are such contacts as are “required in [one’s] official capacity.” Teamsters_ (Adelstein), 998 F.2d at 126. Where the contacts are the result of “a ‘calculated choice’ to associate with persons” of prohibited status, however, the consent decree is violated. Teamsters (DiGirlamo), 19 F.3d at 822. And this is so even if there is no showing that the associations were for an improper purpose. Fiorino cites Ciccone for the proposition that the Panel “was also required to determine whether said association constituted improper conduct.” Main Brief at 12. There is no merit to this argument because the consent decree in Ciccone had different wording. The consent decree in that case prohibited Ciccone “from knowingly and improperly associating” with members of organized crime (emphasis added). The Court of Appeals’ decision in Ciccone turns upon the meaning of the word “improperly,” the court stating in that regard: any knowing association with individuals of prohibited status that has either the purpose or effect of promoting a continued organized crime influence on union affairs, or that has an intimidating or untoward effect on the operation and integrity of the union, is improper and thus prohibited by the consent decree. 44 F.3d at 1097. In Ciccone, the Second Circuit pointed out that “although early drafts of the consent decree in this case contained the language from the Teamsters [IBT] decree, this language was rejected in later drafts and in the final consent decree.” Id. at 1096. In the case at bar, the Consent Decree’s language is the same as that found in the IBT consent decree. See DiGirlamo, 19 F.3d at 819. Accordingly, I give the same construction as in the IBT case to the phrase “knowingly associating” with members of organized crime families, and conclude that the IRO need not show “that the associations were for an improper purpose.” Ciccone, 44 F.3d at 1096 (citing DiGirlamo, 19 F.3d at 822). Fiorino also contends that the District Council By-Laws' and Local 257’s Constitution do not prohibit knowing association with organized crime figures. 'While these documents do not use those words, they do prohibit, union .members or officers from committing “an offense discreditable” to the United Brotherhood or the Local. That is the practical equivalent of the prohibition in the IBT constitution that provides sanctions against Union members who “brought reproach upon the IBT.” See DiGirlamo, 19 F.3d at 819 n. 1. The IRO properly 'charged Fiorino with violations of the District Council By-Laws and the Local’s Constitution, as well as violating 112(b) of the Consent Decree. To sustain this Charge, the IRO had to prove that (1) Bellomo and Coppola were members or associates of an organized crime family; (2) Fiorino had knowledge of that status; and (3) he “associated” with Bellomo and Coppola, as that word has been judicially defined. The Panel found that these facts were proved. On this appeal, Fiorino must show that the Panel’s findings are not supported by substantial evidence. While the IRO bore the burden of proving the prohibited status of Bellomo and Coppola, Ciccone, 44 F.3d at 1097 n. 1, Fiorino does not argue on appeal that the Panel could not make that finding. The record before the panel included six declarations by cooperating witnesses identifying Bellomo and Coppola as members of the Genovese crime family. As previously noted, the Panel was entitled to consider those declarations, and they constitute substantial evidence on the point. In addition, and also as previously noted, the District Council itself proclaimed that Frederick Devine removed Coppola as general steward at the Javits Center on August 6, 1991 because the Council concluded that he was a member of organized crime and knowingly associated with Bellomo, another member of organized crime. Accordingly, the status of both Bellomo and Coppola as “barred persons” under the Consent Decree is not at issue. Nor does Fiorino press with any vig- or a contention that substantial evidence does not support the Panel’s conclusion that Fiorino knew of Bellomo’s and Coppola’s criminal connections. It would be difficult for Fiorino to do so, given District Council President Devine’s proclamation on August 6, 1991. There was evidence in the record to show that after Coppola left the Javits Center, his duties as chief steward were divided between Fiorino and one Leonard Simon. Fiorino was Bellomo’s brother-in-law. Fiorino and Coppola have been friends for many years. Fiorino was Coppola’s best man at his wedding in May 1991. The Panel was thus entitled to reject Fiorino’s testimony that he did not know what either Bellomo or Coppola did for a living. The remaining issue is whether the record contains substantial evidence supporting the Panel’s conclusion that Fiorino knowingly “associated” with Bellomo and Coppola. A threshold question arises with respect to Fiorino’s association with Bellomo. Bellomo was one of the individual defendants in the government’s civil RICO action against the District Council. On March 23, 1993, Bellomo and the government entered into a consent judgment. ¶¶ 2 and 3 of that consent judgment provided as follows: 2. Defendant Bellomo is hereby prohibited from knowingly participating in or having any future dealings of any nature whatsoever, directly or indirectly, with any officer, agent, representative or employee of the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (“District Council”), or any affiliated benefit fund or pension plan, regarding any matter which relates directly or indirectly to the affairs of the District Council or any affiliated benefit fund or pension plan. 3. Nothing in this Consent Judgment shall prohibit Bellomo from communicating with any person related to him by blood or marriage, including Anthony Fiorino, regarding any matter except those which relate directly or indirectly to the affairs of the District Council or any affiliated benefit fund or pension plan. Fiorino argues that since the Bellomo consent judgment, endorsed by this Court, .specifically permitted Bellomo to associate with Fiorino, it is preposterous to read the Court’s Consent Decree as prohibiting Fiorino from associating with Bellomo. After all, if, as in the vernacular, it takes two to tango, it takes two to associate. How can A be permitted to associate with B, but B be prohibited from associatingwith A? This contention has force, somewhat more than indicated by the IRO’s dismissive response in his brief. Nevertheless, I do not think Fiorino’s contention withstands analysis. If these two consent orders had been entered at the same time, Fiorino’s argument would be stronger. The government cannot be allowed to speak simultaneously in an inconsistent, forked-tongue fashion. But the timing of these orders is different, and, more significantly, so are the circumstances existing at the time of their execution. When the government entered into the consent judgment with Bellomo, its civil RICO action against the District Council and various individuals was being litigated energetically. The District Council denied the government’s allegations of corruption by the Genovese crime family and the consequent failure of the District Council officers to discharge their fiduciary duties. Magistrate Judge Katz was supervising contentious pretrial discovery. During this period, a number of individual defendants entered into separate settlements with the government, taking the form of consent judgments. Bellomo was one of those individuals. The main case was then called for trial. Some weeks' into the trial, the parties entered into the Consent Decree. It was filed on March 4, 1994, almost a year after the Bellomo consent judgment was filed. While the District Council and its officers neither admitted nor denied the allegations in the government’s complaint, the Consent Decree for, the first time enjoined members of the District Council and its constituent locals, including Fiorino, from, inter alia, knowingly associating with members of organized crime. The March 23, 1993 order, on the other hand, was concerned solely -with Bellomo. The government was not then in a position to ask, and the Court was not in a position to direct, that Fiorino (a union member) not associate with his brother-in-law Bellomo (not a union member). By the same token, Fiorino, who is not a party to the Bellomo consent judgment, is not in a position to argue that the Bellomo consent judgment conferred any rights or privileges upon him. In March 1994, circumstances changed materially, when Fiorino and other union members for the first time became subject to a Court order prohibiting them from knowingly associating with organized crime figures. That class of “barred figures” includes Bellomo; and neither the government nor the IRO are estopped by the Bellomo consent judgment from enforcing the provisions of the Consent Decree against Fiorino. In sum, Bellomo’s permission to associate with Fiorino, contained in the March 1993 eonsent judgment, has been overtaken by subsequent events, namely the provision in the 1994 Consent Decree prohibiting Fiorino from knowingly associating with organized crime figures, including Bellomo. Of course, this conclusion does not preclude Bellomo and Fiorino from any familial contact.. Ciceone, summarizing the IBT litigation, points out that “truly incidental contacts with prohibited individuals, such as encounters at weddings and funerals, are permitted.” 44 F.3d at 1096. I construe that language as applying to all individuals, not just those related by blood or marriage; and it follows that “truly incidental contacts” between individuals so related will probably be more frequent unless, as sometimes happens, the family members do not like each other. The decisive question is whether there is substantial evidence in the record of an association between Bellomo and Fiorino that transcends the “truly incidental contacts” inherent in a. family relationship, and passes into the prohibited realm of a “calculated choice to associate with persons of a prohibited status.” Stated another way, does the evidence permit an inference that the contacts between Bellomo and Fiorino went beyond the boundaries of contacts generated by the circumstance that Bellomo was married to Fiorino’s sister? The Panel had before it the declarations of six cooperating witnesses which established a relationship between Bellomo and Fiorino “going beyond family contacts between brothers-in-law.” Panel Decision at 12. Specifically, one or another of these witnesses testified that Bellomo replaced Coppola with Fiorino; that Fiorino assumed Coppola’s responsibilities on behalf of the Genovese crime family; and that Fiorino, in his supervisory role at the Javits Center, conveyed messages between Coppola and Bellomo. Id. at 12-13. The statements of these cooperating witnesses corroborate each other; and the references in those statements to the relationship between Bellomo and Fiorino, culled from declarations that range over many areas, are not suggestive of a concerted effort by these witnesses to describe a relationship between Bellomo and Fiorino that did not exist. Such factors support the Panel’s conclusion that the declarations of the cooperating witnesses, although hearsay, had sufficient indicia of reliability to be credible. But these declarations, while furnishing relevant background information, are for the most part not directly probative of Fiorino’s association with Bellomo and Coppola after August 1, 1991, the beginning of the period alleged in Charge One. That is because the declarations of these cooperating witnesses deal, for the most part, with events occurring prior to that time. See Barth opinion at 4 n. 1. However, the record contains significant additional evidence with respect to Fiorino’s post-August 1991 association with Bellomo. The IRO offered telephone records showing calls made from Bellomo’s residence. During the period from January 25,1993 through November 9, 1994, 372 calls were made from Bellomo’s home to Fiorino’s beeper. That volume of telephone traffic could reasonably be regarded as evidence of purposeful communications between Fiorino and Bellomo that extend beyond incidental contacts between brothers-in-law. Fiorino testified that all of these telephone calls to his beeper were from. his sister, Bellomo’s wife. The Panel disbelieved him. “We do not accept that as a credible explanation of the unusually large number of calls; especially in the absence of substantiating testimony from Fiorino’s sister, whose availability and accessibility to [Fiorino] we have no reason to doubt.” Panel Decision at 14. Fiorino argues on appeal that the Panel’s reference to his failure to call his sister to testify impermissibly shifted the burden of proof from the IRO to Fiorino. There is no substance to this argument. Fiorino chose to testify that the calls from Bellomo’s home were initiated by his sister, thereby seeking to distance himself from Bellomo. The fact-finders, without altering the burden of proof, could properly consider the sister’s failure to appear to corroborate Fiorino’s explanation. A criminal case, United States v. Parker, 903 F.2d 91 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990), furnishes an instructive analogy. The case involved the armed holdup of a payroll truck. The government charged that Parker was the “inside man” who interrupted his own delivery route on the morning of the crime in order to telephone to a confederate the schedule of the targeted truck. A payroll employee riding in Parker’s truck testified that Parker had said that the call was to his sister. The prose