In United States v. Gallardo, No. 18-11812 (Oct. 9, 2020) (Hull, William Pryor, Tjoflat), the Court affirmed the defendant’s conviction and sentence for conspiracy to possess with intent to distribute 5 kilograms or more of cocaine.
First, the Court found no abuse of discretion in denying a mistrial based on an agent’s false rebuttal testimony because the defendant did not meet his burden to show prejudice. The district court gave a curative instruction, and the agent’s testimony only hurt his own credibility.
Second, there was no error in denying a motion for a new trial on the ground that the weight of the evidence established that the conspiracy involved only one kilogram of cocaine rather than five kilograms. The Court found ample evidence that, although the confidential source was the one pushing for a five-to-seven kilogram deal, the defendant agreed to sell that amount, even though he was caught with only one kilogram of cocaine.
Third, applying plain error, the Court found no Brady violation with respect to the government’s belated disclosure that the confidential source had been deactivated due to self-dealing. The defendant could not show a reasonable probability that he would have been acquitted, as the defendant used that evidence in his defense to his advantage. And there was no Giglio violation because evidence of the source’s deactivation did not reveal any false trial testimony.
Fourth, and again applying plain error, the Court found that the district court did not err by failing to sua sponte grant a new trial based on alleged sentencing entrapment or sentencing factor manipulation due to the confidential source’s repeated requests for more than the one kilogram to which the defendant was predisposed. The Eleventh Circuit does not recognize sentencing entrapment as a viable defense. And his sentencing manipulation claim failed because the remedy was merely a lower sentence, not a new trial; the Eleventh Circuit has consistently rejected such claims based on the government’s decision to involve a large quantity of drugs in its sting operation; and, in any event, the defendant was a willing participant in the larger conspiracy.
