Appeal from the United States District Court for the District of New Jersey; D.C. Crim. No. 89-00250.
Sloviter, Scirica and Seitz, Circuit Judges.
The government appeals a pretrial order of the district court granting defendant Alan Grecco's ("Grecco") motion to suppress certain prospective eyewitness trial testimony of Frank Galimi ("Galimi"), that would identify Grecco as being present at the murder scene.*fn1
On July 20, 1989, defendant Grecco and seven other defendants were indicted for alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Count Two of the indictment enumerated the alleged racketeering acts, and among them was one charging Grecco and another defendant with conspiracy to murder Vincent Mistretta ("Mistretta"). On September 4, 1990, as part of its order disposing of numerous pretrial motions, the district court granted Grecco's motion to suppress certain of Galimi's prospective trial testimony, 746 F. Supp. 432. The government appeals that order.
The district court had jurisdiction over this matter under 18 U.S.C. § 3231 (1988). This court has jurisdiction pursuant to 18 U.S.C. § 3731 (1988).
The facts surrounding the Mistretta murder, as they have been memorialized in various police reports, are as follows.
On the night of April 26, 1979, Mistretta was stabbed to death. At the time of the murder, Galimi, his roommate, was sitting in their second floor apartment watching television. Responding to a scream, Galimi went to the window of the apartment overlooking the street and saw "a few guys standing over somebody punching him." Galimi yelled out the window, and the assailants backed away from the victim. Galimi, recognizing that it was Mistretta being beaten, went down to the street and began to chase the assailants. The assailants, who were at least a half block ahead of Galimi, jumped into a car parked at the end of the block and drove away. Galimi then returned to Mistretta, and eventually realized that Mistretta had been stabbed.
An incident report, filed by Sergeant Puzio of the Garfield, New Jersey police on April 27, 1979, recounts the following additional details surrounding the evening of April 26, 1979. Puzio and two other police officers responded to the dispatch directing them to the scene of the crime. When he arrived he found Galimi who "appeared very upset and visibly shaken." Puzio also reported as follows:
I approached Frank and asked him, "Frank did you see who did it? Who did it?" He yelled "Wallsnak" [sic] I asked did you see Wallsnak do it. He mumbled something. I then asked "What is Wallsnak first name?" He said Al. "Again I asked who did it." Did you see Wallsnak do it. Putting his hands to his head, shouting Vinnie yelled out "Wallsnak, I heard him say Wallsnak."
"Wolshonak" is the name by which Galimi and the deceased, Mistretta, knew the defendant Grecco. Puzio's report states that Galimi was placed in an ambulance and taken to the hospital.
The district court record includes the report of Detective R. McGill who investigated the Mistretta murder. That report, dated April 27, 1979, gives the following version of Galimi's description of the events on the evening of April 26, 1979:
He [Galimi] then heard the victim scream, "FRANK GALIMI help me!" GALIMI ran to the window, looked out, and could see two males dressed in brown leather jackets hovering over and punching someone on the stairs in front of his apartment. He yelled to the two men . . . and then ran down the stairs. During this time he saw the two assailants running up the street get in a vehicle, and drive away, fleeing the scene. GALIMI states at this time that he did not get a good look at the assailants . . . GALIMI asked the victim, "Who did it to you?" Mistretta stated, "Frank, Al Wolshonak did it."
McGill also reported that:
Galimi was interviewed at length at the Garfield Police Department and indicated that he feared for his life. He stated that if he assisted us in this investigation by naming names, his life would be in jeopardy. He did, however, repeat the conversation between himself and MISTRETTA when MISTRETTA told him that AL WOLSHONAK has assaulted him. . . . He describes the assailants as being the same height as AL WOLSHONAK, however, he did not affirm or deny that AL WOLSHONAK was one of the assailants. FRANK GALIMI appeared in this office on the morning of April 27, 1979 and again appeared reluctant to discuss what he had witnessed. GALIMI was subsequently taken to DR. WAGLE . . . to have GALIMI hypnotized to obtain additional information.
Further, the record contains the report of Investigator Alan Grieco filed April 30, 1979. Grieco's report states that on April 27, 1979, he accompanied Galimi and Galimi's father to the offices of Dr. Wagle, a hypnotist, in Teaneck N.J. The purpose of this visit, the report states, was to place Galimi under hypnosis in order to gain further information about his observations on the night of the murder.
Grieco's report of Galimi's description of the incident, as recounted at the session with Dr. Wagle, was consistent with those in the two other police reports. It also included the following statement:
"He [Galimi] stated that he did not get a good look at their faces only the back of their heads. He was particularly drawn to the stature of their bodies and stated 'I have seen these guys before.' He stated that he was almost certain that one of the assailants he observed was AL WOLSHONAK."
On May 3, 1979, Galimi was interviewed by Investigator John Scioli and Detective McGill. Scioli's report, filed on May 18, 1979, does not state that Galimi was able to positively identify either assailant.
The record contains Galimi's grand jury testimony about the Mistretta murder. That testimony was given on March 31, 1988, nearly nine years after the incident, and it repeats the story Galimi told police in April 1979. The transcript reflects the following exchange:
Q. Now, you say from the look you had, you weren't able to positively identify the people. Is that correct?
[Galimi]. If I said I was 100 percent sure, I'd be lying.
Q. Do you have a feeling as to who one of these people was based on ...