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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July 10, 1996 [NOT FOR PUBLICATION]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.
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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
____________________
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 _______ ________
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' _______
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 ___ _____________ _____________
____________________
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.
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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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Document Info
Docket Number： 96-1408
Filed Date： 7/10/1996
Precedential Status： Precedential
Modified Date： 3/3/2016