
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        July 10, 1996           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
