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UNITED STATES v. GATTO

December 22, 1989

UNITED STATES OF AMERICA,
v.
LOUIS GATTO, SR., et al., Defendants



The opinion of the court was delivered by: BROTMAN

 Currently before the court is the motion of defendant Alan Grecco for reconsideration of this court's order of July 31, 1989 detaining defendant pending trial. For the reasons stated in this opinion, defendant's motion will be denied.

 I. FACTS AND PROCEDURE

 On July 20, 1989, a federal grand jury sitting in the vicinage of Newark, New Jersey, returned a nine count indictment against Alan Grecco and seven other individuals, charging them with a RICO conspiracy and several other federal offenses. The Federal Bureau of Investigation executed arrest warrants on July 27, 1989. The arraignment was held before this court that same day, at which time the U.S. Attorney's office moved for pretrial detention of Alan Grecco under 18 U.S.C. §§ 3142(e), (f)(2)(B). The statute provides:

 
(e) Detention -- If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he [for she] shall order the detention of the person prior to trial. . . .
 
(f) The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case. . . .
 
(2) Upon motion of the attorney for the government or upon the judicial officer's own motion, in a case that involves . . . .
 
(B) a serious risk that the person will obstruct justice or threaten, injure, or intimidate or attempt to threaten, injure or intimidate, a prospective witness or juror.

 Id.

 A. Detention Hearing held July 27, 1989.

 At the initial detention hearing, Mr. Grecco was represented for purposes of the detention hearing by Joseph Afflitto. The government elected to proceed by proffer.

 In its proffer, the government offered a copy of the indictment. The indictment detailed events leading up to the takeover of the Belli gambling business. Arthur Belli's gambling business continued operating when, in 1976, he was jailed for several years. While Arthur Belli was in jail, Alan Grecco allegedly confronted Belli's brother, Robert, to get out of the gambling business. In August of 1976, witnesses identified Grecco as being at Robert Belli's friend's house, where Belli's car was parked. Later, two individuals wearing ski masks were seen circling Robert Belli's car, carrying baseball bats. Several days later, two persons beat Robert Belli with baseball bats, causing him serious injuries. The government also maintained that Grecco later admitted that "he had to give Robert a beating." It was unclear from the government proffer to whom the statement was made.

 According to the indictment, Arthur Belli disappeared several days after he was released from jail. Arthur Belli had told several people that he had to meet with "Little Al" and his father-in-law, Louis Gatto Sr., on the day of his disappearance. Arthur Belli's gambling business later shifted over to Alan Grecco. The government contended that Grecco solicited an individual to commit the homicide of Arthur Belli and he participated in two planning sessions with other defendants. The source of the government's information was not clear from its proffer.

 The indictment set forth Grecco's participation in the takeover of a gambling business owned by Anthony Stumpo and James Barbarulla. Grecco allegedly threatened, directly and indirectly, to kill and do bodily harm to Stumpo and Barbarulla. The government offered that Grecco held a knife to Stumpo's throat to force him out of the gambling business. The government offered the indictment to support this allegation.

 The indictment describes the extortionate collection of credit from Howard Clarke. The indictment alleges that Grecco threatened Clarke if he did not repay his gambling debts. Grecco allegedly confronted Clarke on his front lawn and slapped him. The government noted that the grand jury had heard evidence of a meeting between Grecco, defendant Stefano Mazzola, and others where additional threats of physical violence were made unless gambling debts were paid.

 The indictment details the extortionate collection of credit from Anthony Stumpo. The indictment does not describe the means by which the debt was collected, but alleges that Grecco conspired and agreed to use extortionate means.

 The government offered the Fulvi transcripts -- a series of conversations between law enforcement agents and Anthony Fulvi. Fulvi was murdered in May 1980. The transcripts show that Grecco was heavily armed with machine guns, hand grenades, and bombs. The transcripts also implicate Grecco in the arson of the Fisherman's Net restaurant.

 The government described the murder of Vinnie Mistretta, an individual that was suspected of speaking to police about the Gatto group. Mistretta was not a witness in any proceeding, but had spoken to police to help him retrieve his car from outside a social club operated by the defendants. The indictment states that Mistretta sought police assistance after a dispute with Grecco. Within several weeks, Mistretta was killed. A witness described the incident when Mistretta was killed with an ice pick. Mistretta allegedly said, just before his death, that Alan Wolshonak, a/k/a/ Alan Grecco, did it. Grecco allegedly had been seen in the area less than an hour before the murder, although this information is not part of the indictment.

 The government offered evidence that Grecco was connected to two other homicides of persons suspected of giving information to police. Johnny Lombardi was a close associate of Grecco and the other defendants. He allegedly participated in several armed robberies and truck hijackings with Grecco. In fall of 1974, Lombardi was picked up by the FBI and became an informant. The government offered the Fulvi transcripts to support its allegation that Lombardi was murdered by Grecco.

 The government described the murder of Peter Adamo. The government did not offer evidence to support its contention that Grecco was involved with this murder. Allegedly Adamo was suspected of being an informant. Earlier, when Adamo had accused another of being an informant, Grecco allegedly said, "I know the real story, and I'll take care of it." It is not clear from the government proffer to whom this statement was made.

 The government offered a certificate of conviction for Grecco from 1982. Grecco had tried to bribe a state police officer in a criminal case where the defendant was the son of a member of the Genovese organized crime family. The case involved a bar fight. Grecco was convicted of official misconduct and bribery.

 Finally, the government offered evidence of the recent murder of Jack Ciaramella. Ciaramella allegedly had a falling out last year with the Grecco group, when he was the center of an Internal Revenue Service investigation concerning his business, Arid Basement Waterproofing, which was Grecco's employer. During the course of the investigation, it was revealed that Grecco was a no-show employee. Allegedly Grecco found out about a subpoena requiring Ciaramella to produce handwriting exemplars. Ciaramella was found murdered at the office. The office had a television camera so that he could buzz in people at the back door. The government suggested that Grecco committed the murder because Ciaramella would only buzz in persons whom he trusted. The indictment did not include this incident. The government did not offer any other evidence to support this contention that Grecco was involved or responsible for the murder.

 At the initial hearing, the defendant offered a newspaper article dated April 17, 1989 from the Bergen County Record which stated that a grand jury was investigating the Genovese crime family. The defense noted that, despite this warning to defendants, the government was able to return indictments against them, implying that there was no risk of flight nor intimidation of witnesses or grand jurors. The defense also noted that the government's charges were supported by only unreliable sources and old information.

 On July 31, 1989, this court entered an order of detention pending trial for defendant Alan Grecco, finding that there was a serious risk that the defendant would endanger the safety of another person or the community and that no set of bail conditions could reasonably assure the safety of the community at large or potential witnesses in this case. Defendant Grecco requested a de novo hearing to reconsider this detention order.

 B. Detention Hearing held October 19, October 26, and November 9, 1989.

 In his brief, Grecco challenges the government's contention that he was involved in the crimes against Arthur Belli, Stumpo, Robert Belli, Mistretta, and Clarke. Defendant notes that the government did not identify the sources of the information, thereby failing to establish their credibility, their access to first hand information, the accuracy of their observations, and the absence of bias. The defendant also asserts that there is no reliable information to tie Grecco to the murder of Jack Ciaramella. Finally, defendant contends that the murder of Peter Adamo was thoroughly investigated, yet defendant was neither arrested nor prosecuted. The defendant notes that the Fulvi statements, which are inadmissible as hearsay at trial, cannot be challenged by cross-examination. In his brief supporting his motion for reconsideration, defendant offered over two dozen statements from friends and members of the community that indicate his good character and community ties.

 At the hearing held October 19, 1989, the court heard the testimony of FBI Special Agent David Cosgrove regarding the dangerousness of another defendant. At that hearing, Grecco sought documents from various state law enforcement agencies and one hospital by subpoenas returnable October 19, 1989. This court ordered in camera review of the documents to ascertain those documents to which defendants were entitled at the pretrial detention stage. See Opinion and Order dated November 22, 1989 729 F. Supp. 1478; Supplemental Opinion dated December 6, 1989. On October 26, 1989, counsel for Grecco chose to postpone the hearing for his client until all exculpatory documents were released by the court. This court rescheduled the hearing on defendant's motion for reconsideration until November 9, and again until November 27, until all documents were delivered to the court, reviewed, and the appropriate documents were released to defendants. *fn1"

 In a hearing held before this court on November 27, 1989, the government's witness, Special Agent Cosgrove, was unavailable due to sudden illness. The court asked the government to outline the testimony that would have been presented, and the defendant waived his cross-examination of the witness. The government reiterated its proffer of July 27, 1989. The government stated that the source of its evidence with respect to the Lombardi murder and the Adamo murder was Frank Schneider, a long-time associate of Grecco's. The government offered that, prior to Lombardi's death, Grecco told Schneider to tell Lombardi to meet him. Schneider stated that he never saw Lombardi again. The government contended that Lombardi's family corroborated evidence that Lombardi was a close associate of Grecco's, that Lombardi hijacked trucks with Grecco, and that Lombardi became an FBI informant. The government noted that Grecco returned Lombardi's keys to his wife after Lombardi disappeared.

 The government stated that Schneider also said that Adamo was suspected of talking with police, and was beaten by defendants. The beating, however, got "out of hand" and Adamo was killed.

 The government maintained that Schneider also stated that Grecco asked him to commit the murder of Arthur Belli. He allegedly attended two meetings with defendants Louis Gatto Sr., Joseph Gatto, Louis Gatto, Stefano Mazzola, and Alan Grecco to plan the murder of Arthur Belli where Grecco "did all the talking." The government offered that Belli had stated that he had to meet with Grecco and his father-in-law, Louis Gatto Sr., on the day that he disappeared. The government did not identify to whom Belli made these statements. According to Schneider, Grecco conducted a two year campaign of terror to take over the Belli gambling business. The government offered that Grecco approached Belli's bookmakers during this campaign of terror. This information was corroborated by threats to Stumpo and Barbarulla when Grecco was trying to force them out of the gambling business.

 With respect to the Mistretta murder, the government represented that Grecco was among those standing outside the social club when police accompanied Mistretta to pick up his car. The government stated that Grecco was staring and glaring in silence at Mistretta. The government contended that Mistretta's father, on behalf of Louis Gatto Sr. and Alan Grecco, later called Mistretta and warned him not to make trouble.

 Frank Galimi, Mistretta's roommate at the time of his murder, allegedly recognized Grecco as one of Mistretta's assailants. The government noted that Galimi was terrified and wanted protection immediately after the murder. The government maintains that Galimi withdrew his cooperation when protection was not forthcoming. The government further offered that, although police took Galimi to a hypnotist as part of their investigation, the government could prove that Galimi only pretended to be hypnotized and "faked out" the hypnotist. Presumably the government is concerned about the admissibility of Galimi's post-hypnotic statements as evidence. *fn2"

 The government maintained that Special Agent Cosgrove's earlier testimony at the hearing corroborated evidence of Grecco's method of intimidation and violence in collecting debts.

 Finally, the government maintained that fear of Grecco prompted two other defendants in this case not to cooperate with the government. The government contended that defendant Frank Camiscioli refused to cooperate with their investigation and stated "it would be signing his own death warrant." The government also approached defendant Peter Mylenki, who told government agents that he had to tell Grecco he had been approached but had refused to work with the government, for fear that Grecco would assume he had cooperated.

 In his response, the defendant maintained that the government's evidence did not satisfy the clear and convincing burden required under the Bail Reform Act. The defendant noted that there was great doubt about the reliability and completeness of the government's information.

 Defendant maintained that he is not a current danger to witnesses in this case because some of those witnesses, including Frank Schneider and Frank Galimi, are in protective custody. He noted that witnesses Anthony Stumpo and Robert Belli are communicating and cooperating with defendants' investigator.

 Defendant attacked the credibility of Galimi as a witness in the Mistretta murder. Defendant proffered that Joseph DeVittelone stated that Mistretta had been acting strangely and was paranoid. Defendant maintained that this testimony refuted the government's allegation that Mistretta was upset with Grecco. Defendant also noted that, although the victim was covered with blood, police found no blood on Grecco's clothing when he was arrested later that night. Although the police executed search warrants of Grecco's home and car, laboratory reports showed nothing to implicate Grecco in the murder.

 Defendant also offered police reports to show that Galimi had made inconsistent statements to police regarding whom he saw running away from the murder scene. In exhibit DG-12 (also numbered G-70), Galimi stated that he did not recognize Grecco as one of the two men fleeing the scene. In exhibit DG-13 (also numbered G-28), Galimi stated under hypnosis that he believed that one of the men fleeing the scene was Al Wolshonak, a/k/a Alan Grecco. Defendant notes that he was never charged with involvement with the murder, except in the instant indictment.

 Counsel for defendant offered Grecco's affidavit for the limited purpose of consideration at the detention hearing. (DG-15). In the affidavit, Grecco denies any involvement with the disappearance of Arthur Belli, the murder of Vincent Mistretta, the murder of John Lombardi, the murder of Peter Adamo, the murder of Jack Ciaramella, or threats to Anthony Stumpo, James Barbarulla, Howard Clarke, or Robert Belli.

 With respect to the beating of Robert Belli, the defendant offered Belli's statement that he did not know who had beaten him. Belli's then-girlfriend, Francine Dave, stated just after the beating that Robert Belli owed money and might be in some kind of trouble. She also stated that Robert Belli might have been in trouble with Trobiano over some stolen tools and that Trobiano had threatened Robert Belli. Defendant maintained that he and Robert Belli were, in fact, good friends who recently played golf together. Defendant asserted that Robert Belli stated that he has no current concern about his safety.

 Defendant also noted that, although the government has extensive taped evidence of conversations made while Stumpo was wearing a wire, the tapes do not disclose a single threat made by defendant. The government also failed to tape the specific incident where Stumpo was allegedly threatened by Grecco to pay gambling debts, which would corroborate Stumpo's testimony about such threats.

 With respect to the Lombardi murder, the defendant noted that the statements of Schneider and the Fulvi transcripts contradict. Schneider maintains that Lombardi's body is buried in Pennsylvania, while Fulvi stated that Grecco threw the body into a vat of acid. Defendant also maintained that it was not unusual that Grecco would return Lombardi's keys to his wife because Lombardi often disappeared for several days at a time. She would often stop by one of the social clubs to inquire about his whereabouts, and had received money from Grecco to carry her and her family until Lombardi reappeared.

 To contradict the government's evidence in the Adamo murder, defendant stated that Adamo had many problems; he owed money, he had been in fights, and he had many enemies. During the investigation of the murder, Grecco was specific about his whereabouts in his statements to police. Grecco was testified before a grand jury and was cross examined under oath regarding the incident, however, no bill was returned. Defendant presented a report that corroborated his alibi for the night of the Adamo murder. The defendant noted that police found no scientific connection between splinters found on the victim and chairs in the social club where the government maintains Adamo was murdered. The defendant also pointed out that the statements of Frank Schneider were unclear as to which social club was the site of the murder.

 Defendant also offered statements by codefendant Camiscioli's attorney that his client denies stating that his cooperating with police would be like signing his own death warrant. Additionally, defendants offered that codefendant Mylenki disputes the portion of Special Agent Cosgrove's report that discusses Mylenki's statement that he had to tell Grecco that he had been approached by the FBI for fear that Grecco would assume he had cooperated with the government.

 Defendant also attacked the credibility of Frank Schneider's testimony because Schneider is a drug user who has "spent half his life in prison." Schneider currently has federal charges pending against him. Defendant notes that Schneider was not threatened or intimidated even though defendants knew he had charges pending and presumably might cooperate with the government. Defendant ...


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