US v. Giannetta, Crim. No. 86-00035-01-P

Citation717 F. Supp. 926
Decision Date07 July 1989
Docket NumberCrim. No. 86-00035-01-P,86-00063-04-B.
PartiesUNITED STATES of America v. James GIANNETTA.
CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)

William H. Browder Jr., Margaret D. McGaughey, Asst. U.S. Attys., Portland, Me., for plaintiff.

Judy Potter, Cape Elizabeth, Me., for defendant.

GENE CARTER, District Judge.

MEMORANDUM OF DECISION AND ORDER ON PETITION FOR PROBATION REVOCATION

Vincent J. Frost, a Probation Officer of this Court and supervising Probation Officer of Defendant, has alleged in a petition filed August 24, 1988, and in a supplement to the petition filed September 15, 1988, that Defendant has violated Conditions 1, 2, 10 and 12 of his probation. On February 26, 1988, the Court suspended imposition of sentence and placed Defendant on probation for a period of five years. The usual terms and conditions of probation were imposed1 and were read to and discussed with Defendant, including specifically:

(1) You shall not commit another federal, state or local crime during the term of supervision;
(2) You shall not leave the judicial district or other specified geographic area without the permission of the Court or the probation officer;
(10) You shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;
(12) You shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer.

On September 2, 1988, Defendant was arrested on a warrant issued by this Court. A probable cause hearing was held on September 6, 1988, at which Probation Officer Frost testified. Finding probable cause to believe that Defendant had violated the conditions of his probation, the Court ordered him held for a revocation hearing. Defendant moved for admission to bail pending the revocation hearing and a bail hearing was held on September 30, 1988. That motion was denied by order of October 7, 1988. 695 F.Supp. 1254. Defendant filed a motion to suppress evidence seized in two searches conducted by Probation Officer Frost under the special condition of probation. A hearing was held on that motion on January 23 and 24, 1989. The motion to suppress was denied by order dated April 14, 1989. 711 F.Supp. 1144. Finally, on May 22, 1989, the probation revocation hearing was held. The transcripts of the prior three hearings as well as the transcript of Defendant's sentencing hearing were all made a part of the record for the probation revocation hearing.

In order to revoke Defendant's probation, the Court must find that Defendant violated the conditions of his probation and, further, that there is reason to now incarcerate him. See Advisory Committee Notes, Fed.R.Crim.P. 32.1(a)(2). There need not be proof beyond a reasonable doubt that violations have occurred, United States v. Francischine, 512 F.2d 827, 829 (5th Cir.1975), but the Court must be reasonably satisfied that Defendant's conduct "has not been as good as required by the conditions of probation." United States v. Verbeke, 853 F.2d 537, 539 (7th Cir.1988); United States v. Guadarrama, 742 F.2d 487, 489 (9th Cir.1984).

Condition 1

Probation Officer Frost testified to two alleged violations of the law which occurred in his presence. First, on May 3, 1988, after Defendant had been told that he could not travel out of the district without a Court order, Suppression Hearing Tr. 49-50, he asked Probation Officer Frost if he could travel to Massachusetts that day. Upon having his request denied, Defendant persisted, asking Frost what he could do or if Frost could do something. After Frost's negative reply, Defendant "leaned across Frost's desk ... and whispered, `why don't you close the door and tell me what I have to do.'" Revocation Hearing Tr. 17; Suppression Hearing Tr. 50. Frost interpreted Defendant's behavior as an attempt to bribe him, in violation of 18 U.S.C. § 201. The Court finds no reason to doubt Frost's uncontradicted version of the event and his interpretation of it, as an experienced probation officer, seems very reasonable.

Frost also observed Defendant driving on June 13, 1988, when his license was under suspension. Although the charge was ultimately dismissed before adjudication, a warrant was issued for Defendant's arrest, and Defendant admitted to Frost when he was confronted that indeed he had been driving after suspension. The Court finds, therefore, that Defendant violated 29 M.R.S.A. § 2298.2 Suppression Hearing Tr. 72. The fact that the charge was dismissed does not affect the status of the offense for probation revocation purposes since the dismissal occurred before the merits of the case were addressed. See United States v. Granelli, 558 F.2d 1042 (1st Cir.1977).3

Based on Probation Officer Frost's investigation,4 the petition also alleges that Defendant submitted a false automobile loan application to the New Hampshire Savings Bank on April 20, 1988. On the application, Exhibit 138, which Probation Officer Frost obtained through a court order, Defendant represented himself as the owner of Leisure Leasing, Inc., with an annual salary or wages of $75,000. While Defendant may have received money from his father as a gift, he had reported to Frost in March and April that he was unemployed, and that he had not filed an income tax return for 1987 because he had no income. Defendant told Frost that he was trying to start Leisure Leasing, Inc. again, and in June 1988 he told Frost that he was selling cars and trucks. He stated that he had sold his Corvette for $14,000 and had made $500 on other sales. The Corvette had previously been valued as a $13,000 asset by Defendant, so by June, from these exertions, he had $1500 of profit. Suppression Hearing Tr. 34; Probable Cause Hearing Tr. 45-46. The Court finds it highly unlikely that Defendant had an annual salary of $75,000 in April 1988 since by June he had only made $1500.

Defendant argues that he had large sums of money in gifts from his father and therefore did not have the requisite intent to defraud. This is a specious argument, however, since the application asked for salary or wages, i.e., earned income. If he was relying on gifts from his father to make him eligible for the loan, he should have disclosed that fact to the bank so it could properly evaluate it. The Court finds it highly likely, therefore, that Defendant misrepresented his annual salary on the loan application, in violation of 18 U.S.C. § 13445 (bank fraud) and 18 U.S.C. § 1014 (false loan application).

Title 18 U.S.C. § 922(g) makes it a crime for a convicted felon to possess ammunition that has been transported in interstate commerce. Probation Officer Frost had been told by Robert Reno, after Defendant's sentencing, that Defendant always carried a gun, and Keith Lorentsen testified that he had seen a gun in Defendant's room a few weeks before the search on June 30, 1988. During the search, Probation Officer Frost found ammunition both separately and in a clip in a bedside table in Defendant's apartment. Defendant's father testified that he had taken Defendant's gun from him on the day of sentencing, but had told him to keep the clip. The Court finds it highly likely that Defendant possessed ammunition in violation of section 922(g).

Defendant argues that the offense has not been made out because it must be established that the subject firearm or ammunition previously moved in interstate commerce. He asserts that the purpose of the Act is to prohibit felons from shipping or transporting weapons in interstate commerce or from receiving any such article which has been shipped or transported in interstate commerce. Based on a recent opinion by the Court of Appeals for the First Circuit, the Court reads the statute more broadly. In United States v. Gillies, 851 F.2d 492, 494-95 (1st Cir.1988), the court stated that

one can read the language "possess in or affecting commerce, any firearm" as serving a jurisdictional purpose, making clear that Congress wished to exercise its Commerce Clause power broadly in order to achieve a crime control objective, namely stopping convicted felons from possessing guns. If so, the effect on commerce to which Congress refers could include the effect that permitting (or forbidding) a person or persons of this sort to possess interstate guns will have on interstate commerce, Congress's object being to show not necessarily an injury to commerce, but rather simply to show some effect for jurisdictional reasons.
. . . . .
A Congress that wanted to expand § 922(g)'s jurisdictional reach to include past, present and (possibly) future connections with interstate commerce, expanding the crime to include more than just receipt or transport, might have preferred to use a single, highly general word with a history such as "affecting" rather than to write a far longer statute using several clauses in different tenses....

Given the broad reading of the statute, the Court is satisfied to the extent necessary for this proceeding that Defendant violated section 922(g).

The Court heard extensive testimony from Keith Lorentsen concerning an elaborate check kiting scheme engineered by Defendant and carried out by him and others, including Lorentsen, Kelli Haines, and Victor Loveitt, in May and June 1988. The scheme involved procuring false identifications in Vermont, Massachusetts, and Maine in May and opening bank accounts in various banks throughout New England in the fictitious names. Using the checks and money cards that were issued, carefully timed deposits and withdrawals were made at the banks, as Lorentsen described it, "covering bad checks with other bad checks." Lorentsen was told only to use the cards at Defendant's direction, money withdrawn was given to Defendant, and Defendant paid Lorentsen for his participation. False identification materials and checks, money cards, and bank statements in the names...

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5 cases
  • U.S. v. Giannetta
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 9, 1990
    ...Senior Circuit Judge. This is an appeal from an order of the district court revoking defendant-appellant James Giannetta's probation. 717 F.Supp. 926. Giannetta raises a number of fourth amendment challenges regarding two searches of his residence that were performed by his probation office......
  • Durling v. CHAIRMAN, MASSACHUSETTS PAROLE BD., Civ. A. No. 90-11923-H.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • April 1, 1992
    ...435 (1985). March 20, 1992. 1 This is not to say that a court does not have discretion to require live testimony. See United States v. Giannetta, 717 F.Supp. 926, 931 (footnote 8) (D.Me., 1989). The question rather is in what circumstances does receiving police reports in lieu of live testi......
  • Giannetta v. Boucher
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 22, 1992
    ...Chief Judge Carter ordered appellant's probation revoked for numerous violations of conditions of probation. See United States v. Giannetta, 717 F. Supp. 926 (D. Me. 1989). In January, 1992, after appellant had filed his complaint in this case, Chief Judge Carter presided over a hearing on ......
  • US v. Giannetta, Crim. No. 86-00035-P-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • March 4, 1992
    ...United States v. Giannetta, 695 F.Supp. 1254 (D.Me.1988); United States v. Giannetta, 711 F.Supp. 1144 (D.Me.1989); United States v. Giannetta, 717 F.Supp. 926 (D.Me.1989); United States v. Giannetta, 909 F.2d 571 (1st The Court's prior decision to admit Defendant to probation was based upo......
  • Request a trial to view additional results

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