United States v. Gallardo, 18-11812

• Decision Date: 09 October 2020
• Docket Number: No. 18-11812,18-11812
• Citation: 977 F.3d 1126
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maikel Vigil GALLARDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

977 F.3d 1126

UNITED STATES of America, Plaintiff-Appellee,

v.Maikel Vigil GALLARDO, Defendant-Appellant.

No. 18-11812

United States Court of Appeals, Eleventh Circuit.

October 9, 2020

Carol Herman, Aileen Cannon, Andrea G. Hoffman, Anne Ruth Schultz, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff - Appellee.

Ana M. Davide, Law Office of Ana M. Davide, Miami, FL, Maikel Vigil Gallardo, FCI Oakdale II - Inmate Legal Mail, Oakdale, LA, for Defendant - Appellant.

Before WILLIAM PRYOR, Chief Judge, TJOFLAT and HULL, Circuit Judges.

HULL, Circuit Judge:

After a jury trial, Maikel Gallardo appeals his conviction and sentence of 120 months’ imprisonment for conspiracy to possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. Gallardo argues that the district court erred in denying (1) his motion for a mistrial based on a government witness's false rebuttal testimony and (2) his motion for a new trial based on the fact that the jury verdict—that he conspired to possess with intent to distribute five kilograms or more of cocaine—was against the weight of the evidence given that he was apprehended with only one kilogram of cocaine. For the first time on appeal, Gallardo argues that he is entitled to a new trial: (1) because the government failed to disclose timely damaging evidence about the informant's credibility, in violation of the Brady– Giglio ¹ rules; and (2) due to the government's impermissible sentencing entrapment and sentencing factor manipulation. As to his sentence, Gallardo asserts that the district court erred in using five kilograms of cocaine to calculate his base offense level. After review, and with the benefit of oral argument, we affirm.

I. FACTUAL BACKGROUND

The trial evidence established the following events and drug deal.

A. Initial Investigation

On April 17, 2017, Police Officer David Quintas of the Miami-Dade Police Department ("Miami PD") and FBI Special Agent Steven Catherman began investigating Gallardo when a confidential source ("CS") informed that Gallardo had offered to introduce him to high-level drug suppliers in South Florida.² The CS made controlled phone calls to Gallardo to plan to meet in person and arrange for the purchase of multiple kilograms of cocaine. Thereafter, the Miami PD and the FBI surveilled Gallardo when he called and as he met with the CS and Gallardo's drug supplier, later identified as Manuel Angel Arencibia. The phone calls were audio recorded; the meetings were audio and video recorded by the CS and surveilled by law enforcement.³

B. April 2017 Drug Deal Negotiations

On April 18, 2017, Gallardo and the CS met at a restaurant in Hialeah, Florida. At the meeting, Gallardo revealed that he had drug suppliers from Jacksonville, Tampa, and Colorado. Gallardo explained to the CS: (1) how things work with drug suppliers in Florida; (2) that they were cautious with unknown buyers to avoid being ripped off; and (3) that his Tampa supplier "got scared" when he stated the CS was looking to purchase five kilograms of cocaine. The CS thus would need to start off by buying one kilogram of cocaine and gaining the suppliers’ trust, and then he could "come for 20-30 [or] 50" kilograms and could "be buying a ton." So Gallardo encouraged the CS "to start like that." Although Gallardo had located a supplier who was willing to provide five kilograms of cocaine for $20,000-$25,000, the deal fell through.

The CS pushed for a five-kilogram deal. Gallardo rejected the idea, saying "you're crazy buddy." When the CS indicated that Gallardo's warnings about drug suppliers made him nervous and uncomfortable, Gallardo assured him that he and his suppliers were safe and that he would protect the CS and the deal.

Gallardo said he would introduce the CS to his "high level" cocaine "source" from Jacksonville to smooth things over, establish trust, and make sure the deal was safe. Gallardo revealed that his Jacksonville cocaine source was experienced, knew a lot of people, and had a connection that could give the CS three kilograms immediately. Gallardo insisted, however, that the CS needed to start off small and work his way up.

They continued to discuss Gallardo's suppliers, drug quantities, drug prices, drug-trafficking routes, trust, and the CS's ability to buy larger quantities from Gallardo's suppliers in the future. Meanwhile, Gallardo got a bottle of rum to share with the CS, and they were "very friendly." Gallardo called various sources and confirmed with the CS that his Jacksonville source—who ended up being Arencibia—would come the next day. When the CS tried to clarify how many kilograms the deal would be for, Gallardo said "I don't know, ... whatever you want." After further discussion, Gallardo and the CS left the restaurant. At this point, FBI Special Agent Juan Valenzuela joined the team surveilling Gallardo and Arencibia.

On April 19, 2017, Gallardo and the CS met at a hotel in Doral, Florida. They initially discussed logistics for the deal with Arencibia, drug prices and quantities, Gallardo's other drug suppliers (in Orlando, Florida, and Texas), and trust. When the CS appeared to be nervous, Gallardo explained that the CS and Arencibia were suspicious of each other since they had not met before and assured that no one would hurt the CS.

Gallardo called Arencibia, who was on his way from Jacksonville. Gallardo confirmed that Arencibia knew the CS needed five kilograms of cocaine, had that quantity, and appeared to indicate he would bring that amount. Gallardo told the CS, however, that Miami buyers only buy a maximum of one kilogram at a time and that they did not want to do a five-kilogram deal with the CS yet. Gallardo reminded the CS that the CS failed to pick up the drugs that Gallardo had arranged for him on a previous occasion because the CS was "f**king around." Gallardo implored that he "need[ed] this [deal] to happen." Because it would be a while before Arencibia arrived, Gallardo and the CS agreed to meet up later.

Later that day, Gallardo, the CS, and Arencibia met in the parking lot of the hotel and got into Gallardo's car. Arencibia asked the CS how much cocaine he was looking to buy, and the CS responded that it depended on pricing. Arencibia offered the CS a price of $32,000 per kilogram of cocaine and confirmed that he had an Orlando source who could provide the CS with larger quantities of cocaine, up to 100 kilograms. When the CS asked how much Arencibia was comfortable with selling him, Arencibia and Gallardo stated that their Orlando contacts would sell the CS one or two kilograms of cocaine at first for him to try and, if he was satisfied, they would bring him more—up to possibly five or eight kilograms total—while he waited. The CS stated that he wanted to do business and that he was trying "to get around seven" kilograms. Gallardo responded that the CS could buy three or four kilograms now and, later that day or the next day, buy two, three, or four more.

Still in the car, Arencibia made several phone calls to coordinate with other sources to gather the drugs. Arencibia told one supplier that the CS "wanted five, six, [or] seven" kilograms but would be willing to "start with one so he can check it ... and ... figure it out." Arencibia directed the supplier to bring "twenty ... [s]o that [the CS] can see it and touch it and who knows." While the men waited for Arencibia's contact to get back to him, they discussed Arencibia's and Gallardo's dealings with other drugs, their other contacts for those drugs, how to best smuggle drugs into the country, their upbringing, and the women in their lives, occasionally laughing and joking. The men ultimately decided to end the meeting and consummate the deal another time. To wrap up, Arencibia said that he would contact the CS when his source got back to him, Gallardo went over logistics for the deal, the CS confirmed the $32,000 price per kilogram for the cocaine, and they discussed the possibility of a lower price in the future. Subsequently, Gallardo and the CS went to dinner, a bowling alley, and the beach together.

Between April 20 and 26, 2017, Gallardo and Arencibia spoke to the CS via phone calls and text messages. Gallardo reported to the CS that he and Arencibia located seven kilograms of cocaine in Miami, but the cocaine was not good quality. Eventually, they agreed to have Gallardo receive five to seven kilograms of cocaine from a source in Orlando and deliver the cocaine to the CS at a hotel in Altamonte Springs, Florida on April 26, 2017. Gallardo directed the CS to send him a photo of the purchase money and the CS complied and organized the money in $10,000 packages.

C. April 26, 2017 Cocaine Transaction

On April 26, 2017, Gallardo, Arencibia, and the CS spoke on the phone to confirm that they were ready to meet. When the CS inquired about the drug quantity he would be receiving, Gallardo responded that he would bring one kilogram for the CS to sample and then, "if [the CS] like[d] it we'll do it." The CS then requested that they do the entire drug deal "in one shot." Arencibia responded that they would do one kilogram first and then, he promised, he would "go and get [the CS] the other one."

Later that day, Gallardo, Arencibia, and the CS met in the Altamonte Springs hotel's parking lot. The CS entered Gallardo's car, while Arencibia parked nearby and stayed in his car. Gallardo notified the CS that he had one kilogram of cocaine in his backpack and that they needed to go to a hotel room so the CS could sample it. The CS asked, "how will we do the other four?" Gallardo assured the CS that the other kilograms of cocaine were nearby and directed that, once the CS tested and approved the one-kilogram sample and showed the purchase money, they would talk to Arencibia about the other kilograms. The CS tried to negotiate for a lower price, but Gallardo stayed firm at $32,000...