
USCA1 Opinion

	




                                 NOT FOR PUBLICATION                                 ___________________                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT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).                                         -2-                                         -2-            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).            ______    _____________                                         -3-                                         -3-            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.                 _________                                         -4-                                         -4-
