United States v. Gianquitto

• Court: Court of Appeals for the First Circuit
• Decided: July 10, 1996
• Docket: 96-1408
• Status: Published

Opinion

USCA1 Opinion

July 10, 1996           [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 96-1408



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                DONALD A. GIANQUITTO,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                      [Hon. Patti B. Saris, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Thomas  J.  Butters, Sarah  C.  Dooley,  and Butters,  Brazilian &
            ___________________  _________________       _____________________

        Small, on brief for appellant.
        _____

            Donald K. Stern,  United States Attorney, and Geoffrey E.  Hobart,
            _______________                               ___________________

        Assistant United States Attorney, on brief for appellee.


____________________


____________________



Per Curiam.  Defendant-appellant Gianquitto appeals
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            from a district court order imposing pre-trial detention.



                      Appellant  and  seven  others  were  charged  in  a



            complaint with conspiracy  to possess and  distribute cocaine



            in  violation of 21 U.S.C.    841(a)(1), 846.  The government



            filed motions  in the  district court for  pretrial detention



            under  18  U.S.C.    3142(f).    A  magistrate  judge held  a



            detention hearing  and issued orders which,  as to appellant,



            set  bail  at  $300,000,  and  imposed additional  conditions



            including  a  curfew and  the surrender  by appellant  of his



            pilot's license and his  physical control over two airplanes.



            The  order was stayed while  the government sought  a de novo
                                                                  __ ____



            review of the magistrate's orders.



                      The district  court conducted a joint  three-day de
                                                                       __



            novo  hearing on  the  government's motion  for detention  of
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            appellant and two other  defendants, as well as a  motion for



            reconsideration  of an  order  detaining a  fourth defendant,



            Venuti.   On  January 24,  1996, the  court entered  an order



            which, inter alia, denied  bail to appellant and  ordered his
                   _____ ____



            detention pending trial.1 
                                    1



                      At the  hearing the government  introduced evidence



            gathered in a lengthy undercover investigation of appellant's



                                
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               1   Although Gianquitto  immediately noticed this  appeal,
               1

            perfection   of  it   was   delayed  by   a  combination   of

            circumstances which included a filing mistake in the district

            court  clerk's  office and  a  substitution  of attorneys  by

            Gianquitto.  



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involvement in a large  scale drug trafficking operation.   A



            DEA agent's  testimony and affidavit reciting  the results of



            wire  and   visual  surveillance,  declarations   by  a   co-



            conspirator,  information from informants, and items found in



            a search of appellant's home, all tended to identify him as a



            central  figure  in  the  conspiracy.    In  addition,  close



            surveillance   provided  strong  evidence  that  in  multiple



            transactions  appellant had supplied  cocaine to co-defendant



            Venuti who, in turn,  distributed the drug to a  confidential



            informant.



                      In the search  of appellant's home,  the government



            found $300,000  in gold  krugerrands stored in  an ammunition



            can; $19,000 in cash in a brown paper bag; a  scale useful in



            weighing drugs;  and documents  identified as a  drug ledger.



            The  house also  contained  148 legally-registered  firearms,



            including an Uzi semiautomatic  machine gun; several cases of



            ammunition; 150 sticks of  dynamite; 16 smoke grenades; books



            about manufacturing bombs and explosive devices; a Nazi flag,



            and two human  skulls.   Evidence was  introduced, too,  that



            appellant held  a pilot's license; had  travelled extensively



            outside the United States; owned at least three aircraft, one



            of  which was registered to  someone else and  was fitted for



            long distance flight; and had  recently attempted to import a



            military-style airplane.



                      Appellant   stipulated  at  the  hearing  that  the


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government had  presented probable  cause to believe  that he



            had committed offenses  for which he might receive  a maximum



            penalty  of ten years or more as prescribed in the Controlled



            Substances Act, 21  U.S.C.   801  et seq.2    As a  result, a
                                                     2
                                              __ ____



            rebuttable   presumption   arose   that   no   "condition  or



            combination  of   conditions  will  reasonably   assure"  his



            appearance and  "the  safety  of any  other  person  and  the



            community."  18 U.S.C.   3142(e)(f).  



                      In rebuttal, appellant presented evidence of strong



            family ties and  long time  residence in  the community,  his



            ownership  of a  construction business  in another  town, his



            legal  ownership  of  the  items   found  in  his  home,  the



            inoperability  of at  least  two  of  the aircraft,  and  the



            lawfulness of  his attempt  to import the  military aircraft.



            He argued that  he had legitimate  uses for the weapons  as a



            firearms collector and competitive shooter, and a use for the



            explosive devices in his construction business.



                       After substantial consideration of the evidence on



            both  sides, and a weighing  of the factors  enumerated in 18



            U.S.C.     3142(g),  the  district court  concluded  that  no



            condition  or  combination  of  conditions  would  reasonably



            assure  appellant's  appearance   and  the   safety  of   the



                                
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               2   A later-returned indictment provides hindsight support
               2

            for the parties' probable  cause stipulation.  The indictment

            charges  Gianquitto  in  five   counts  with  possession  and

            distribution of cocaine, as  well as conspiracy to distribute

            more than five kilograms of the drug.



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community.    Observing  strong  proof   that  appellant  had



            trafficked  in  cocaine  from  his  home  and  could  face  a



            mandatory minimum term of  ten years' imprisonment, the court



            was  persuaded  by  a  preponderance  of  the  evidence  that



            appellant had  an incentive to flee,  possessed the resources



            to  do  so, and  had not  been "candid"  about his  access to



            airplanes.  As  to dangerousness, the  court found clear  and



            convincing proof  in the  presence of appellant's  weapons at



            the site  of his  drug trafficking activity,  his presumptive



            financial incentive to continue  in drug trafficking, and his



            "dubious"  explanations  for  the  presence of  the  Uzi  and



            explosives in his home.



                      Cognizant  of the district court's superior ability



            to marshall and evaluate the facts, in pretrial bail cases we



            undertake an "intermediate level of scrutiny -- more rigorous



            than  the abuse-of-discretion  or clear-error  standards, but



            stopping  short of plenary or de novo review."  United States
                                          __ ____           _____________



            v.  Tortora,  922 F.2d  880, 883  (1st  Cir. 1990);  see also
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            United States v. O'Brien,  895 F.2d 810, 814 (1st  Cir. 1990)
            _____________    _______



            (where the  decisional scales are evenly  balanced, the trial



            court's determination  should stand).  While  appellant urges



            us to resift and reweigh each item of testimony and evidence,



            in bail cases  we necessarily cede deference  to the district



            court's first hand determination of fact-bound issues.  After



            an independent review  of the record,  we are convinced  that


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the balance struck  by the district  court should stand,  and



            affirm substantially  for the  reasons stated in  the court's



            thoughtful opinion.  



                       We  reject appellant's  other  arguments  for  the



            following reasons:



                      (1) Despite his stipulation  in the district court,



            appellant argues here that there was insufficient evidence to



            trigger  the presumption in 18  U.S.C.   3142(e)(f).   In the



            alternative, he urges that the presumption was rebutted.



                      As  appellant  views  the  evidence,  it  "directly



            implicates" him in only two cocaine transactions, involving a



            total of  only 717.1 grams  of cocaine.   To  arrive at  this



            figure,  he disputes  the court's  conclusion that  there was



            "extremely strong  evidence" that in "seven  transactions" he



            had "personally trafficked in over two kilograms of cocaine."



            He  also  challenges, as  violative  of  his Sixth  Amendment



            rights,  the court's reliance on testimony that tied him to a



            conspiracy  involving  over five  kilograms  of cocaine,  the



            amount which may  lead to  a minimum sentence  of ten  years'
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            imprisonment.  



                       However,  even   if  the  record   supported  this



            argument --  which it  does not  -- it  would not  render the



            presumption  inapplicable.    The  presumption  is  triggered



            solely by  probable cause to  believe that the  defendant has



            committed a crime for which a maximum penalty of ten years or
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more  is  prescribed in  the  controlled  substances statute.



            United  States v. Moss, 887 F.2d 333, 336-37 (1st Cir. 1989).
            ______________    ____



            The maximum term for a crime involving 717.1 grams of cocaine
                _______



            is forty years  -- well  over the 10-year  maximum needed  to



            trigger the presumption.3  See 21 U.S.C.   841(b)(1)(B).
                                    3  ___



                      While prediction  of a  lesser sentence based  on a



            lesser quantity of the drug may affect the weight assigned to
                                                       ______



            the  presumption,  see  Moss, 887  F.2d  at  337,  we see  no
                               ___  ____



            evidentiary basis for such  a prediction.  Rather, there  was



            very  strong  circumstantial   evidence  linking   Gianquitto



            personally to multiple cocaine transactions,  and implicating



            him as a major player in the whole operation.  



                      (2)  There  is  no   basis  for  appellant's  Sixth



            Amendment  challenge  to  the  court's reliance  on  the  DEA



            agent's  testimony that  a drug  ledger found  in appellant's



            home reflected transactions in excess of five kilograms.  The



            agent testified from present  memory as to his own  review of



            the contents of  the ledger.  The testimony  was taken in the



            presence  of   appellant  and  his  counsel;   there  was  an



            opportunity  to cross-examine;  and  counsel  in fact  cross-



            examined the  agent extensively about  many issues.   No more



            was required.   See United States v.  Acevedo-Ramos, 755 F.2d
                            ___ _____________     _____________



                                
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               3 The argument is  also infirm because it (1)  ignores the
               3

            effect of defendant's stipulation  to probable cause, and (2)

            assumes that "direct" evidence  and/or evidence of "personal"

            involvement in specific transactions is needed to trigger the

            presumption.  



                                         -7-



203, 207 (1st Cir.  1985) (reliable hearsay is  admissible in



            bail hearings).  



                      The  record  flatly  contradicts appellant's  claim



            that  the judge  considered additional information  about the



            ledger, which was  produced at a continuation  of the hearing



            against  the other defendants after the  close of evidence on



            the  motion against  appellant.   In  any event,  appellant's



            defense team bypassed an opportunity offered by  the judge to



            seek to reopen appellant's hearing if there was any perceived



            prejudice  in  the  use  of  the  ledger  against  the  other



            defendants.   



                      For   the  reasons   stated,  the   order  imposing



            detention pending trial is affirmed.
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