NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 94-2090
JOSEPH GILBERTI,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, Senior U.S. District Judge]
Before
Boudin, Circuit Judge,
Gibson,* Senior Circuit Judge,
and Stahl, Circuit Judge.
William J. Brown for petitioner.
Kevin O'Regan, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.
*Of the Eighth Circuit, sitting by designation.
Per Curiam. Joseph Gilberti was convicted by a jury on
two drug offense counts, 21 U.S.C. 841, 846, and, pursuant
to a third count, a jury determined that his residence was
subject to forfeit because used to facilitate Gilberti's
possession of drugs with intent to distribute. 21 U.S.C.
853. This court affirmed and Gilberti chose not to seek
certiorari although a number of co-defendants did so
unsuccessfully.1 Instead, Gilberti filed a motion under 28
U.S.C. 2255 challenging the forfeiture. In a carefully
considered opinion, the district court denied the motion.
On appeal, Gilberti's argument is two-fold: that the
joining of the substantive and forfeiture counts in one trial
effectively prevented him from testifying on the forfeiture
count, and that the forfeiture of the house based on a
minimal connection with the drug transactions is a
disproportionate penalty. The government has chosen to by-
pass the issue whether section 2255 is an appropriate means
to challenge a forfeiture judgment and we follow the same
course. United States v. Connell, 6 F.3d 27, 29 n.3 (1st
Cir. 1993).
We agree with the district court that Gilberti's first
claim--that he was entitled to a separate hearing on the
forfeiture so that he could testify solely on that issue--is
1United States v. Innamorati, 996 F.2d 456, 473 (1st
Cir. 1993), cert. denied, 114 S. Ct. 409, 459, 1072-73 (1993-
94).
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foreclosed. Gilberti was free to ask for bifurcation before
his trial and did not do so. The point is not that error
occurred but has been waived. Rather, nothing in the present
circumstances made it error at all for the district court to
try the counts together when the defendant made no objection
to this course. See, e.g., United States v. Jenkins, 904
F.2d 549, 557-58 (10th Cir.), cert. denied, 498 U.S. 962
(1990).
Gilberti's brief suggests that the failure of his trial
counsel to move for bifurcation may have amounted to
ineffective assistance. We see no basis for this claim in
the present record. There were potential tactical advantages
to Gilberti in having the jury consider the entire case at
once; and, given the weight of government evidence, defense
counsel could reasonably have doubted that later denials by
Gilberti himself would carry much weight.
As for disproportion in the penalty, the Supreme Court
has recently held that an excessive fines defense may be
offered against forfeitures under the Eighth Amendment.2
But in this case Gilberti has forfeited a residence valued
at $130,000 based on ample evidence that he had engaged in a
substantial and ongoing drug conspiracy and made repeated use
of his residence for storage, planning and transactions.
2Alexander v. United States, 113 S. Ct. 2766 (1993);
Austin v. United States, 113 S. Ct. 2801 (1993).
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Considering that each substantive count carried a potential
fine of $1 million--but no fines were imposed on Gilberti--we
think that Gilberti has no colorable claim under the Eighth
Amendment.
Affirmed.
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