United States v. Gianquitto

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July 10, 1996 [NOT FOR PUBLICATION]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 __________

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 ____

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

____________________

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.

-2-













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



-3-













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

____________________

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.

-4-













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 _______ ________

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



-5-













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' _______

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 _______



-6-













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 ___ _____________ _____________

____________________

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. ________



























-8-