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United States v. Pipito

decided: July 20, 1987.


Appeals from the United States District Court for the Eastern District of Wisconsin. No. 84-CR-182-Thomas J. Curran, Judge.

Posner, Circuit Judge, Ripple, Circuit Judge, and Campbell, Senior District Judge.*fn*

Author: Campbell

CAMPBELL, Senior District Judge.

Defendants-appellants Anthony and Cheryl Pipito (hereinafter Anthony and Cheryl) appeal their convictions on various drug charges. Anthony was convicted by a jury of engaging in a continuing criminal enterprise (21 U.S.C. § 848), possession with intent to distribute cocaine (21 U.S.C. § 841(a)(1)), interstate travel to facilitate an unlawful activity (18 U.S.C. § 1952), and utilizing a telephone to facilitate an underlying cocaine conspiracy (21 U.S.C. § 843(b)). A conviction on a conspiracy count was subsequently vacated. Anthony was given a 50 year term of imprisonment on the continuing criminal enterprise charge and 121 years on the remaining counts. Cheryl, Anthony's wife, was convicted after a bench trial on one count of conspiracy (21 U.S.C. § 846) and one count of possession with intent to distribute cocaine (21 U.S.C. § 841(a)(1)). She was sentenced to a five year probationary period, fined $5,000 and is required to perform 800 hours of community service. After considering the various arguments raised by the defendants, we affirm the rulings of the district court.

On October 24, 1984 Chief Judge Reynolds of the Eastern District of Wisconsin authorized the interception of telephone conversations from the residence of Anthony. This was done from October 25 to November 30, 1984. It was on the basis of these intercepted conversations that Anthony and Cheryl were arrested. Subsequent to their arrest search warrants were issued for Anthony's residence as well as for the residence of his brother Peter Pipito. A safe deposit box was also searched; 2.6 kilograms of cocaine and $319,735 was recovered.

Most of the evidence incriminating Anthony came from 156 intercepted telephone conversations from his telephone covering 288 recorded hours. The government outlines conversations where Carlo, Edgar, "Good Stuff," and Kiko were identified as cocaine suppliers from Florida (Gov't. Ex. 256, 267, 282, 308). It became apparent that cocaine was secured from Florida and brought to Milwaukee where it was distributed in quantities ranging from one-quarter of an ounce to four ounces at Anthony's condominium or at a designated site (Gov't. Ex. 339-40, 354-55, 257-58, 359-60, 261). Law enforcement officials often witnessed the actual distributions take place after learning about them from the telephone conversations. Anthony himself estimated he distributed five to six kilograms of cocaine per month and that his annual income was 1.2 million dollars (Gov't. Ex. 347, 348, 268, 344).

As for Cheryl Pipito, she moved to sever her trial and the motion was granted. Yet the same tapes and evidence collected and seized from Anthony's condominium were used against Cheryl. The conversations from Anthony's telephone established that on November 24 and 28, 1984 Cheryl helped Anthony package cocaine and on November 25 she helped tally cash proceeds from the sale of cocaine. She was also seen accompanying Anthony on November 27 when he distributed cocaine to street dealers.

Anthony's Arguments

Anthony raises nine arguments on appeal. Most of them are totally unsubstantiated and all of them, ultimately, must be rejected. His first argument is that the warrant issued to the police by Chief Judge Reynolds was tainted because it was "a monument to hearsay, innuendo, suspicion, speculation, and uncorroborated allegations" (Brief p.6). A "totality of circumstances" test should be employed in reviewing the sufficiency of search warrant affidavits. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).

Similarly, we have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A . . . "determination of probable cause should be paid great deference by reviewing courts." Spinelli, supra, 393 U.S. at 419, 89 S. Ct., at 590. "A grudging or negative attitude by reviewing courts toward warrants," Ventresca, 380 U.S., at 108, 85 S. Ct., at 745, is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; "courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense manner." Id., at 109, 85 S. Ct., at 746.

Id. 103 S. Ct. 2331.

Anthony fails to detail any specifics as to why the warrant was constitutionally insufficient. Anthony claims it is "obvious" from reading the affidavit that there is no way to vouch for the reliability of the information from the unidentified confidential sources. Yet he advances no analysis of the warrant's language that would lead to such a conclusion. In contrast, the government notes the informants had been used by the FBI previously and none had been known to give false information. The bottom line here is that we cannot rule the district court's issuance of the warrant to be constitutionally offensive on the basis of Anthony's conclusory, unsubstantiated allegations considering Gates instructs us to pay great deference to the ruling of the district court on this matter.

Anthony's second argument is that he was unconstitutionally detained from the time of his arrest until his sentencing. He claims there should have been a review of his detention during the ten month period between his arrest and sentencing. He attacks the constitutionality of the Bail Reform Act of 1984 (the Act), 18 U.S.C. § 3141 et seq., and places particular emphasis on the rebuttable presumption found at 18 U.S.C. § 3142(e). Suffice it to say, the Bail Reform Act of 1984 has been held constitutional by the United States Supreme Court in United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). Indeed, much of the reasoning advanced by the Supreme Court in Salerno was advanced by the Seventh Circuit earlier in United States v. Portes, 786 F.2d 758, 766-68 (7th Cir. 1985).

The provisions of the Act were applied properly in this case. Following two hearings in December of 1984 a magistrate issued a detention order with an explanation of the reasons why he thought the detention of Anthony was necessary to protect the community and insure his presence at trial. Anthony failed to seek a revocation of this order pursuant to 18 U.S.C. § 3145(c). Instead he filed a petition for a writ of habeas corpus while the criminal action at bar was pending. After reviewing the magistrate's recommendations, the district court decided that habeas petitions were civil in nature and should be filed as separate civil actions. The district court also noted that Anthony should have followed the review procedures found at 18 U.S.C. § 3145(c). The district court did not err in refusing to entertain Anthony's petition for habeas ...

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