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[NOT FOR PUBLICATION]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, Brazilia

__________________

Small, on brief for appellant.

_____
Donald K. Stern,
_______________

United States Attorney, and Geoffrey E. Hoba

_________________

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

complaint with conspiracy

in

under

18

in the

U.S.C.

detention hearing

set

bail

including

841(a)(1), 846.

3142(f).

$300,000,

curfew and

and

The government

magistrate

judge held

as to appellant,

imposed additional

the surrender

in

pretrial detention

and issued orders which,

at

charged

distribute cocaine

district court for

pilot's license and his

The

were

to possess and

violation of 21 U.S.C.

filed motions

others

conditions

by appellant

of his

physical control over two airplanes.

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

appellant and two other

reconsideration

Venuti.

On

of an

for detention

defendants, as well as a

order

January 24,

which, inter alia, denied

_____ ____

detaining a

1996, the

of

motion for

fourth defendant,

court entered

bail to appellant and

an order

ordered his

detention pending trial.1

1

At the

hearing the government

introduced evidence

gathered in a lengthy undercover investigation of appellant's

____________________

1
1

Although Gianquitto

perfection

of

it

was

immediately noticed this

delayed

by

appeal,

combination

of

circumstances which included a filing mistake in the district

court

clerk's

office and

substitution

Gianquitto.

-2-

of attorneys

by

involvement in a large

DEA agent's

wire

and

testimony and affidavit reciting

visual

conspirator,

scale drug trafficking operation.

surveillance,

the results of

declarations

by

co-

information from informants, and items found in

a search of appellant's home, all tended to identify him as a

central

figure

surveillance

in

the

provided

conspiracy.

strong

evidence

In

addition,

that

in

close

multiple

transactions

appellant had supplied

Venuti who, in turn,

cocaine to co-defendant

distributed the drug to a

confidential

informant.

In the search

found $300,000

in gold

of appellant's home,

the government

krugerrands stored in

an ammunition

can; $19,000 in cash in a brown paper bag; a

weighing drugs;

and documents

The

contained

house also

identified as a

drug ledger.

148 legally-registered

including an Uzi semiautomatic

ammunition; 150 sticks of

scale useful in

firearms,

machine gun; several cases of

dynamite; 16 smoke grenades; books

about manufacturing bombs and explosive devices; a Nazi flag,

and two human

appellant held

skulls.

Evidence was

a pilot's license; had

introduced, too,

that

travelled extensively

outside the United States; owned at least three aircraft, one

of

which was registered to

long distance flight; and had

someone else and

was fitted for

recently attempted to import a

military-style airplane.

Appellant

stipulated

-3-

at

the

hearing

that

the

government had

presented probable

had committed offenses

penalty

cause to believe

for which he might receive

that he

a maximum

of ten years or more as prescribed in the Controlled

Substances Act, 21

U.S.C.

rebuttable

presumption

combination

of

arose

conditions

appearance and

community."

801

"the

safety

18 U.S.C.

et seq.2
2
__ ____

that

will

As a

no

"condition

or

assure"

his

reasonably

of any

other

result, a

person

and

the

3142(e)(f).

In rebuttal, appellant presented evidence of strong

family ties and

long time

ownership

construction business

legal

of a

ownership

inoperability

of

of at

the

least

residence in

items

two

in another

found

of

the community,

in

his

the aircraft,

his

town, his

home,

the

and

the

lawfulness of

He argued that

his attempt

to import the

he had legitimate

military aircraft.

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

U.S.C.

3142(g),

condition

or

assure

the

district court

combination

appellant's

of the factors

of

appearance

concluded

conditions

and

enumerated in 18

would

the

safety

that

no

reasonably

of

the

____________________

2
2

A later-returned indictment provides hindsight support

for the parties' probable

charges

Gianquitto

in

cause stipulation.
five

distribution of cocaine, as

counts

with

The indictment
possession

and

well as conspiracy to distribute

more than five kilograms of the drug.

-4-

community.

trafficked

Observing

in

strong

cocaine

from

mandatory minimum term of

was

persuaded

appellant had

to

do

so, and

by

proof

his

home

and

appellant

could

had

face

ten years' imprisonment, the court

preponderance

an incentive to flee,

had not

that

of

the

evidence

that

possessed the resources

been "candid"

about his

access to

airplanes.

As

to dangerousness, the

court found clear

convincing proof

in the

the site

drug trafficking activity,

of his

presence of appellant's

financial incentive to continue

"dubious"

explanations

for

and

weapons at

his presumptive

in drug trafficking, and his

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

stopping

v.

or clear-error

short of plenary or de novo review."

__ ____

Tortora,
_______

922 F.2d

880, 883

United States v. O'Brien,

_____________
_______

(1st

standards, but

United States
_____________

Cir. 1990);

895 F.2d 810, 814 (1st

see also
________

Cir. 1990)

(where the

decisional scales are evenly

court's determination

should stand).

balanced, the trial

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.

an independent review

of the record,

-5-

we are convinced

After

that

the balance struck

affirm substantially

by the district

for the

court should stand,

reasons stated in

and

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

"extremely strong

the court's

conclusion that

evidence" that in "seven

there was

transactions" he

had "personally trafficked in over two kilograms of cocaine."

He

also

rights,

challenges, as

violative

of

his Sixth

Amendment

the court's reliance on testimony that tied him to a

conspiracy

involving

amount which may

over five

lead to

kilograms

of cocaine,

a minimum sentence
_______

of ten

the

years'

imprisonment.

However,

even

argument --

which it

presumption

inapplicable.

solely by

if

the

does not

probable cause to

The

record

-- it

supported

would not

presumption

believe that the

is

this

render the

triggered

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

trigger the presumption.3

3

over the 10-year

maximum needed

See 21 U.S.C.
___

841(b)(1)(B).

to

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
____

evidentiary basis for such

very

strong

F.2d

at

a prediction.

circumstantial

evidence

337,

we see

Rather, there

linking

personally to multiple cocaine transactions,

no

was

Gianquitto

and implicating

him as a major player in the whole operation.

(2)

Amendment

agent's

There

is

no

basis

challenge

to

the

court's reliance

a drug

ledger found

testimony that

for

appellant's

on

the

DEA

in appellant's

home reflected transactions in excess of five kilograms.

agent testified from present

memory as to his own

the contents of

The testimony

the ledger.

Sixth

The

review of

was taken in the

presence

of

opportunity

appellant

and

his

to cross-examine;

counsel;

there

counsel

in fact

and

examined the

agent extensively about

was required.

See United States v.

___ _____________

many issues.

was

an

cross-

No more

Acevedo-Ramos, 755 F.2d

_____________

____________________

3 The argument is
3

also infirm because it (1)

effect of defendant's stipulation

assumes that "direct" evidence

ignores the

to probable cause, and (2)

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

that

record

the judge

the

contradicts appellant's

considered additional information

ledger, which was

against

flatly

produced at a continuation

the other defendants after the

motion against

appellant.

In

claim

about the

of the hearing

close of evidence on

any event,

defense team bypassed an opportunity offered by

appellant's

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,

detention pending trial is affirmed.

________

the

order

imposing

-8-