Debbie Grecco stating that the defendant was at home at the time of this murder.
Because the incident is not part of the indictment, nor did any witness corroborate the government's vague proffer, this court refuses to consider the government's speculative contention that Grecco was somehow involved in the murder. The government's contention that Grecco must have committed the murder because Ciaramella would only buzz in persons that he knew is absurd.
The court notes that the government also did not offer evidence to support its proffer that Grecco threatened Clarke for repayment of a gambling debt. The defendant, however, has offered nothing to discredit the government's proffer, thus the court shall consider this threat as probative of Grecco's dangerousness.
The indictment implicated Grecco in the murder of Adamo. According to Schneider, Adamo was murdered at a social club frequented by Grecco as the result of a beating that "got out of hand." The government proffered that Grecco suspected that Adamo had been talking with police. It is unclear from Schneider's testimony who suspected Adamo, who beat Adamo, and who was present when Adamo was beaten. The government wishes the court to find that this testimony corroborates the allegations in the indictment that Grecco participated in the murder. The court refuses to find that the generalities presented bolster or corroborate the government's allegations in the indictment. Additionally, defendant's affidavit denies any participation.
This court finds that the evidence that no condition or combination of conditions will reasonably assure the safety of the witnesses and the community is clear, convincing, and overwhelming. Grecco has been implicated in many violent crimes, including hijacking, robbery, arson, beatings, extortionate threats to Stumpo and Clarke, and the murders of Arthur Belli, Johnny Lombardi, and Vincent Mistretta. The evidence shows that Grecco has used threats and intimidation to take over the Belli gambling business. The evidence also shows that Grecco, in the past, has been heavily armed with machine guns, hand grenades, and bombs. The court notes that defendant was not, at the time of the indictment, on parole or probation. His prior criminal record, although not extensive, shows Grecco's willingness to approach trial witnesses, as demonstrated by his conviction of bribery of a witness. While the court has considered the defendant's proffer of letters from the community, the probative value of these offerings pales when compared to the evidence of defendant's willingness to use violence to obtain his desired ends. Grecco's use of violence against persons whom he suspects of betraying him to law enforcement authorities includes the murders of Mistretta and Lombardi. His ability to intimidate witnesses is demonstrated by the refusal of a codefendant to cooperate with the government's investigation of this case because it would be "like signing [his] own death warrant" and another codefendant's telling Grecco about inquiries from the government to be sure Grecco did not assume he was cooperating. Therefore, the nature and seriousness of the danger to potential witnesses in the case is substantial given defendant's past use of threats and intimidation, and his being implicated in violent crimes such as hijacking, robbery, arson, and murder. The court finds that detention of this defendant pending trial is warranted under § 3142(e) because no set of bail conditions could reasonably assure the safety of the community at large or potential witnesses in this case.
Next, the court must consider whether, at this point, due process requires release from pretrial detention under United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986); United States v. Vastola, 652 F. Supp. 1446, 1449 (D.N.J. 1987). The Court of Appeals for the Third Circuit has recognized that "at some point due process may require a release from pretrial detention. . . ." United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986). The court must consider the "seriousness of the charges, the strength of the government's proof that defendant poses a risk of flight or a danger to the community, and the strength of the government's case on the merits," as well as the "length of detention that has in fact occurred, the complexity of the case, and whether the strategy of one side or the other has needlessly added to the complexity." Id. The length of the detention is critical due to the "crucial liberty interest at stake." United States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986). See also United States v. Perry, 788 F.2d 100, 114 (3d Cir.), cert. denied, 479 U.S. 864, 107 S. Ct. 218, 93 L. Ed. 2d 146 (1986) ("the grave invasion of the most fundamental of all personal liberties that occurs when preventive detention is ordered").
This court notes initially that the charges in the indictment are serious and reflect several predicate acts of violence. The offense charged here does not raise the statutory presumption of § 3142(e) that presumes that no condition or combination of conditions will reasonably assure the safety of the community. Rather, the government produced evidence at the hearings to demonstrate clearly and convincingly that defendant is dangerous. These factors weigh against Grecco's release at this time.
The length of detention here is significant. The defendant has already been detained for almost five months. At the hearing held October 19, 1989, the United States Attorney represented to the court that the government would be prepared to try the case within one month of receiving defendant's pretrial motions and that the trial of the case would take three months or less. The court set a date of January 19, 1989 for filing of defendant's pretrial motions. Thus, the earliest date for trial will be February 19, 1989. If the trial lasts the anticipated three months, defendant will be detained for ten months.
In Vastola, defendants were detained under the statutory presumption of dangerousness. 652 F. Supp. at 1447. This court released defendants under stringent conditions when it appeared that defendants would have been detained eighteen months. Id. at 1449. Vastola is clearly distinguishable. There, the government had not shown defendants to be dangerous, but rather relied on the statutory presumption. Here, the government has shown by clear and convincing evidence that defendant is dangerous. Additionally, defendant is not yet facing eighteen months of detention. The balance does not tip in favor of release here.
This case is complex. The government represented that there are tapes from over 200 days of court-ordered listening devices, and that the government prepared logs to serve as an index for the tapes. By contrast, in Vastola, the government presented 3000 to 3800 hours of tape evidence, but did not provide an index of the contents of the tapes. The government also delayed giving the tapes to defendants' counsel. The Vastola case involved twenty-one defendants on 117 counts under several statutes for illegal activities in both New Jersey and Maryland. Defendants in Vastola, therefore, required "an unusual amount of time for preparation." Id. at 1448. This court finds that the circumstances compelling release of the Vastola defendants pending trial are not present here. The case is not as complex nor will it require the extended preparation that Vastola required. The government has not "needlessly added to the complexity" of the case. Accetturo, 783 F.2d at 382.
The court finds that the length of detention and complexity of the case do not outweigh the danger to the community if this defendant were released. This court will reconsider the matter sua sponte if detention is prolonged beyond the current schedule.
This court finds that the government has shown by clear and convincing evidence that no condition or combination of conditions can reasonably assure the safety of the community at large or potential witnesses in this case. For that reason, defendant Grecco's motion for reconsideration of this court's order of detention pending trial of July 31, 1989 will be denied.
An appropriate order will be entered.
Date: December 22, 1989
This matter having come before the court on the motion of defendant Alan Grecco for this court to reconsider its order of detention pending trial of July 31, 1989; and
For the reasons set forth in the court's Opinion filed this date;
IT IS this 22nd day of December, 1989 hereby
ORDERED that defendant Alan Grecco's motion for reconsideration of this court's order of July 31, 1989 is DENIED.