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United States v. Gatto
Citations: 727 F. Supp. 903; 1989 U.S. Dist. LEXIS 15553; 1989 WL 156013Docket: Grim. A. No. 89-250(SSB)
Court: District Court, D. New Jersey; December 21, 1989; Federal District Court
Defendant Alan Grecco's motion for reconsideration of the July 31, 1989 detention order is denied. On July 20, 1989, a federal grand jury indicted Grecco and seven others on multiple charges, including RICO conspiracy. Following his arrest on July 27, 1989, the U.S. Attorney's office sought pretrial detention under 18 U.S.C. § 3142 due to concerns about Grecco's potential flight risk and danger to the community. During the detention hearing, Grecco was represented by attorney Joseph Afflitto, and the government presented its case through a proffer, including the indictment. The indictment alleged Grecco's involvement in the takeover of the Belli gambling business during Arthur Belli's imprisonment, detailing incidents of violence, including the beating of Robert Belli and threats made towards gambling business competitors Anthony Stumpo and James Barbarulla. It was asserted that Grecco threatened Stumpo with a knife to force him out of the gambling business and that he was involved in extortionate collection of debts from Howard Clarke. The government's evidence indicated a serious risk that Grecco would obstruct justice or intimidate witnesses. Grecco allegedly confronted Clarke and slapped him on his front lawn. Evidence presented to the grand jury indicated a meeting involving Grecco, Stefano Mazzola, and others, where threats of violence were made regarding unpaid gambling debts. The indictment details extortionate credit collection from Anthony Stumpo but does not specify the methods used, instead alleging Grecco conspired to use extortion. The government introduced Fulvi transcripts showing Grecco was heavily armed and implicated him in the arson of the Fisherman's Net restaurant. The indictment also discusses the murder of Vinnie Mistretta, suspected of cooperating with police about the Gatto group. Although Mistretta was not a formal witness, he sought police help after a dispute with Grecco, and was killed shortly thereafter, with a witness claiming Grecco was responsible. Additionally, Grecco is connected to two other homicides of individuals thought to have informed police. The government alleges Grecco murdered his associate Johnny Lombardi, who became an FBI informant, and discusses the murder of Peter Adamo, suspected of being an informant, although no direct evidence ties Grecco to this killing. The government presented a 1982 conviction of Grecco for bribing a police officer in a case linked to organized crime. Furthermore, they referenced the recent murder of Jaek Ciaramella, who had a falling out with Grecco and was the focus of an IRS investigation. Ciaramella was found murdered at his office, which Grecco allegedly accessed due to his status as a no-show employee, although no indictment included this incident or concrete evidence of Grecco’s involvement. The defense highlighted a newspaper article about a grand jury investigation into the Genovese crime family, suggesting the government could indict without risk of flight or witness intimidation. The defense challenged the government's charges against Alan Grecco, arguing they were based on unreliable sources and outdated information. On July 31, 1989, the court ordered Grecco's detention, citing a serious risk to community safety and potential witnesses. Grecco requested a de novo hearing for reconsideration, which took place on October 19, October 26, and November 9, 1989. He contested the government's claims linking him to crimes involving Arthur Belli and others, noting the lack of credibility, firsthand information, and bias from the sources. Grecco also pointed out the absence of reliable evidence tying him to the murders of Jack Ciaramella and Peter Adamo, emphasizing the inadmissibility of certain hearsay statements. During the proceedings, Grecco presented over two dozen character references to support his motion for reconsideration. At the October hearings, the court heard testimony from FBI Agent David Cosgrove about another defendant's dangerousness and ordered an in-camera review of documents related to the case. Grecco's counsel postponed proceedings until all exculpatory documents were released, leading to rescheduled hearings. In a November 27 hearing, the government’s witness, Cosgrove, was unavailable due to illness. The government outlined the testimony it would have provided, citing Frank Schneider, a longtime associate of Grecco, as a key source linking him to the Lombardi and Adamo murders. The government claimed Grecco had instructed Schneider to arrange a meeting with Lombardi, who subsequently disappeared. Additionally, testimony suggested that Grecco had planned the murder of Arthur Belli with other defendants. The government did not specify to whom Belli made statements regarding a two-year campaign of intimidation led by Grecco to seize control of Belli's gambling operations. Evidence indicated that Grecco threatened Stumpo and Barbarulla to eliminate them from the gambling business. In relation to the murder of Mistretta, the government claimed Grecco was present outside a social club when Mistretta was escorted by police to retrieve his car, where he reportedly stared at Mistretta. Mistretta's father allegedly warned him against causing trouble on behalf of Grecco and Gatto Sr. Frank Galimi, Mistretta's roommate, recognized Grecco as one of the attackers and sought immediate protection post-murder, later withdrawing his cooperation due to fear. The government expressed concerns over the admissibility of Galimi's post-hypnotic statements, asserting he feigned hypnosis during police questioning. Special Agent Cosgrove's testimony was cited as corroborative of Grecco's violent tactics in debt collection. The fear of Grecco allegedly deterred other defendants, including Camiscioli and Mylenki, from cooperating with the investigation. In response, the defendant argued the government's evidence failed to meet the clear and convincing standard required under the Bail Reform Act, citing doubts about its reliability. The defendant claimed he posed no current threat to witnesses, as some were in protective custody and others were cooperating with defense investigators. He challenged Galimi's credibility by referencing statements from DeVittelone about Mistretta's paranoia and emphasized that no blood was found on Grecco during his arrest, despite Mistretta being found covered in blood. Further, the defendant pointed out inconsistencies in Galimi's statements regarding the identities of fleeing suspects, asserting that he had never been charged with Mistretta's murder outside of the current indictment. Counsel for the defendant submitted Grecco’s affidavit for consideration at the detention hearing, in which Grecco denies involvement in multiple murders (Arthur Belli, Vincent Mistretta, John Lombardi, Peter Adamo, Jack Ciaramella) and threats against individuals including Anthony Stumpo and Robert Belli. Regarding Robert Belli's beating, the defendant presented Belli's statement of ignorance about his assailant, along with Francine Dave's assertion that Belli had financial troubles and potential conflicts with Trobiano, who allegedly threatened him. The defendant claimed a good friendship with Belli, who reportedly has no current safety concerns, and similarly asserted that Stumpo is not worried about his safety, as he consulted with Grecco's legal team and resisted testifying against Grecco. Despite the government's taped evidence of Stumpo's conversations, no threats from Grecco are recorded, and the specific threat regarding gambling debts was not taped. In addressing the murder of Lombardi, the defendant highlighted contradictions between witness statements, with Schneider claiming Lombardi’s body is in Pennsylvania, while Fulvi alleged it was disposed of in acid. The defendant asserted that Grecco returning Lombardi's keys to his wife was normal due to Lombardi's habit of disappearing. To counter the government's claims about the Adamo murder, the defendant noted Adamo's known issues with debt and enemies, corroborated his alibi, and pointed out the lack of forensic links between evidence found on the victim and the alleged murder scene. Additionally, discrepancies in Schneider's testimony regarding the murder location were noted. The defendant also referenced statements from co-defendant Camiscioli's attorney and Mylenki, who disputed claims regarding their cooperation with law enforcement. The credibility of Schneider was challenged due to his criminal history and current federal charges, despite his lack of intimidation despite the potential consequences of cooperation with the government. Defendant Grecco argues the absence of surveillance or tape evidence supporting Schneider's claims. He presents a sworn statement from his wife, Debbie Grecco, affirming his presence at a birthday party during the murder of Ciaramella. Several affidavits are submitted to secure Grecco’s bail, including those from Angelo and Theresa Grecco, which offer property valued at $375,000, and others from several individuals pledging properties totaling over $1 million, despite existing mortgages. The defendant acknowledges that some properties were pledged for Louis Gatto Sr.'s release, but the bondsman is willing to accept them for Grecco as well. Additionally, the defense proffers information regarding Mistretta, the victim of a separate murder, indicating he was allegedly distributing bullets with names on them and had been arrested with a loaded gun. In contrast, the government emphasizes the reluctance of co-defendants Mylenki and Camiscioli to cooperate, arguing this reflects fear instilled by Grecco. They cite Stumpo's consistent outreach to defense attorneys post-hearing as indicative of his fear. The government also points to Grecco's influence over witnesses such as Robert and Peter Leone, noting Leone's trembling demeanor when questioned about Grecco and his past affiliation with Belli. The court must determine whether the government has demonstrated a clear and convincing risk that Grecco poses a danger to community safety and whether any bail conditions could ensure the safety of potential witnesses. The Bail Reform Act, 18 U.S.C.A. §§ 3141-3156, addresses concerns regarding crimes committed by individuals on release and identifies a subset of dangerous defendants for whom traditional release conditions may not ensure community safety. A judicial officer can order a defendant's detention after a hearing if it is determined that no conditions can guarantee the defendant's appearance and safety for others. During the hearing, defendants have rights to counsel, testimony, witness presentation, cross-examination, and evidence presentation without the usual criminal trial rules. Detention can only occur if supported by clear and convincing evidence. The Third Circuit has noted that due process might necessitate release under certain circumstances, considering factors such as charge seriousness, evidence strength regarding flight risk and community danger, case complexity, and the duration of detention, which is critical due to liberty interests. In evaluating whether to detain defendant Grecco, the court must assess: 1) the nature of the offense; 2) evidence weight; 3) Grecco's history and characteristics; and 4) the potential danger posed by release. The indictment reveals that while racketeering itself may not be violent, the underlying activities indicated are violent, suggesting Grecco's dangerousness to the community. The offense against Grecco includes multiple violent acts such as extortion, threats, and murder. The government initially used the indictment to demonstrate Grecco's dangerousness, citing his beating of Robert Belli and the disappearance of Arthur Belli. Specific allegations include Grecco threatening Barbarulla to exit the gambling business, holding a knife to Stumpo’s throat, and using threats and physical violence against Clarke to collect gambling debts. The indictment also claims Grecco conspired to murder and ultimately killed Vincent Mistretta with an ice pick. However, while the indictment establishes probable cause, the government must provide clear and convincing evidence to prove Grecco's dangerousness. Additional evidence presented includes connections to two other homicides: the Lombardi case, supported by Fulvi transcripts indicating Grecco was armed and involved in arson, and the Adamo murder, for which the government did not disclose a source. The government also introduced a certificate of conviction for witness bribery. Frank Schneider’s statements were presented to support claims against Grecco, including accusations that Grecco planned Arthur Belli's murder and intimidated members of the Belli gambling business. This was corroborated by testimonies from Stumpo, Barbarulla, and Peter Leone. Schneider claimed that prior to Lombardi’s death, Grecco instructed him to arrange a meeting with Lombardi, who was suspected by Grecco of cooperating with law enforcement. Lombardi's family confirmed his close ties with Grecco and his involvement in hijackings. Schneider also stated that Adamo was killed in a beating that escalated at a social club associated with Grecco, but details regarding who was involved remain unclear, preventing the court from drawing direct inferences of Grecco’s responsibility. Grecco challenged Schneider's credibility by highlighting his history as a chronic drug user and current legal troubles, suggesting bias in his testimony. An alleged error regarding the address of the social club was also noted, but the court concluded that this mistake did not significantly undermine Schneider's credibility. Discrepancies about the disposal of Lombardi's body, including conflicting statements about burial versus acid disposal, do not negate the credibility of Schneider's testimony regarding Grecco's involvement in the hijackings or Lombardi's murder. Schneider did not directly implicate Grecco in the Adamo murder, but the defendant aims to eliminate any inference of Grecco's involvement by presenting corroborative evidence for Grecco's alibi, including a police report and specific statements regarding his whereabouts. Grecco testified before a grand jury without being indicted, and police reports found no connection between the victim's physical evidence and the alleged crime scene. The defendant also noted Adamo's personal issues at the time of his murder, including debts, fights, and enemies. Special Agent Cosgrove's cross-examination revealed that Schneider had previously lied to law enforcement for favorable treatment and had a lengthy criminal record. Schneider's pending sentencing on a New Jersey drug charge is scheduled for after his testimony in this trial. The court concluded that the government did not prove Grecco's responsibility for the Adamo murder but found Schneider's testimony regarding other criminal activities credible, supporting the government's indictment. The defendant argued that Schneider posed no threat due to being in protective custody, but the court maintained that past conduct could still indicate risks to other witnesses. The government used statements from Anthony Stumpo to support claims that Grecco threatened him regarding gambling debts. However, the defendant argued Stumpo showed no fear of Grecco, citing his ongoing communication with Grecco’s attorney and reluctance to testify before the grand jury. The absence of tape recordings of threats did not negate the possibility of such threats occurring. Stumpo's behavior was interpreted as an attempt to stay on good terms with potentially dangerous individuals, leading the court to accept his testimony as credible. Additionally, the government presented transcripts related to Anthony Fulvi, which suggested that Grecco feared Lombardi might cooperate with law enforcement and was allegedly involved in Lombardi's murder, including disposing of his body in acid. Grecco is implicated in the arson of the Fisherman’s Net restaurant and truck hijackings, as per transcripts. The defendant challenges the Fulvi transcripts, arguing they conflict with Schneider’s account regarding Lombardi's body disposal, but the court notes the statements' source—a convicted felon—does not invalidate them entirely. The government presented Frank Galimi's statements, linking Grecco to the Mistretta murder. Galimi claimed the victim said Grecco killed him and witnessed Grecco fleeing the scene, although he later recanted due to fear of police inaction. The defendant attempts to discredit Galimi, citing his psychiatric history, substance abuse, and a lack of blood evidence on Grecco. The court finds Galimi’s mental health does not inherently undermine his testimony and acknowledges the possibility of recantation under duress. Therefore, Galimi's statements regarding Grecco's involvement are considered relevant to establishing his dangerousness. Regarding Robert Belli and Francine Dave, the government lacks evidence for the beating of Belli. The defendant presents Belli’s statement of ignorance about his assailant and his girlfriend’s suggestion that Belli had previous issues with others. The court dismisses the relevance of Belli's friendship with Grecco concerning fear and finds that the alternative interpretations from Belli and his girlfriend do not contradict the government's assertion of Grecco's involvement. Special Agent David Cosgrove's potential testimony indicated that two codefendants refused to cooperate out of fear of Grecco. The defendant contests this, stating that codefendant Camiscioli denies expressing that cooperation would endanger him and that Mylenki disputes Cosgrove's report on his interactions with Grecco. Inconsistencies in the statements of codefendants do not undermine the government's position, as these individuals may be intimidated into retracting their testimonies. The government initially claimed Grecco was involved in Ciaramella's murder but failed to provide supporting evidence. During a hearing on November 28, 1989, the government maintained its proffer without substantiation. Grecco submitted an affidavit asserting he was at home during the murder, and the court declined to consider the government's uncorroborated and speculative claims regarding his involvement. Furthermore, the government could not substantiate its assertion that Grecco threatened Clarke over a gambling debt; however, the court views this threat as indicative of Grecco's dangerousness. Regarding the indictment implicating Grecco in the murder of Adamo, testimony suggested that Adamo was killed at a club frequented by Grecco due to a beating that escalated. The government's attempt to link this testimony to its allegations was rejected by the court due to a lack of clarity and corroboration. Grecco’s affidavit denied involvement, and the court found overwhelming evidence indicating that conditions could not ensure witness and community safety. Grecco has a history of violent crimes, including hijacking, robbery, and multiple murders, utilizing threats and intimidation to dominate the Belli gambling business. Notably, Grecco has previously been heavily armed and has a conviction for witness bribery, demonstrating a willingness to compromise trial integrity. The court acknowledged community support for Grecco but deemed it insignificant compared to the evidence of his violent tendencies and intimidation of potential witnesses. This intimidation is illustrated by a codefendant’s refusal to cooperate with the investigation, fearing for his safety. The court finds substantial danger to potential witnesses due to the defendant's history of threats, intimidation, and involvement in violent crimes, including hijacking, robbery, arson, and murder. Detention is deemed necessary under 3142(e) as no bail conditions can ensure community safety or protect witnesses. The court must also assess if due process requires the defendant's release from pretrial detention, considering factors such as the seriousness of the charges, the strength of the government's case, and the length of detention. The defendant has been detained for nearly five months, with a trial anticipated to start by February 19, 1989, potentially extending detention to ten months. The court distinguishes this case from United States v. Vastola, where defendants were released after lengthy detention without clear evidence of danger. Here, the government has convincingly demonstrated the defendant's dangerousness, and the case's complexity, including extensive audio evidence, further weighs against release. The government delayed providing tapes to the defendants' counsel in the Vastola case, which involved twenty-one defendants facing 117 counts for illegal activities across New Jersey and Maryland, necessitating a lengthy preparation period. However, the court concludes that the circumstances requiring the release of the Vastola defendants are not applicable in this instance, as the current case is less complex and does not require similar extensive preparation. The government has not unnecessarily complicated the case. The court determines that the duration of detention and complexity of the case do not outweigh the potential danger to the community if the defendant, Grecco, is released. Thus, Grecco’s motion for reconsideration of the July 31, 1989, detention order is denied. The court affirms that its in camera review of subpoenaed documents does not violate the prohibition against ex parte submissions during detention hearings, as established in United States v. Accetturo. Unlike Accetturo, this court did not rely on the subpoenaed materials for its decision; instead, it based its ruling solely on evidence presented during the hearings and the government's briefs. Defendants had the opportunity to cross-examine witnesses and utilize any Brady material from the subpoenaed documents to challenge the government's case. The court emphasizes that defendants are not entitled to full discovery at pretrial detention hearings per United States v. Suppa. The in camera review allows the court to consider necessary materials while adhering to the Third Circuit's guidelines. This aligns with the Bail Reform Act, under which the rules of admissibility used at trial do not apply to evidence presented during these hearings.