                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2008

USA v. Gagliardi
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1609




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                                                 NOT PRECEDENTIAL
                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                             Nos. 06-1609/1946/3845
                                 _____________

                         UNITED STATES OF AMERICA

                                          v.

                            ANTHONY GAGLIARDI
                                   a/k/a
                                TONY GAGS

                                Anthony Gagliardi,
                                         Appellant
                                _______________

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                               (D.C. No. 04-cr-0796)
                    District Judge: Honorable John R. Padova
                                 _______________

                    Submitted Under Third Circuit LAR 34.1(a)
                                 June 6, 2008

     Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges

                               (Filed: July 3, 2008)
                                _______________

                           OPINION OF THE COURT
                               _______________

JORDAN, Circuit Judge.
         Anthony Gagliardi appeals his convictions for conspiracy to distribute cocaine and

attempted possession with intent to distribute cocaine, both in violation of 21 U.S.C.

§ 846. Concluding that Gagliardi’s numerous allegations of error lack merit, we will

affirm.1

I.       Background

         Because we write primarily for the parties, we limit our recitation of the facts to

those pertinent to the outcome of this appeal. In 2002, law enforcement officers learned

that Gagliardi, Steven Carnivale, and others had entered into an agreement to possess and

distribute cocaine. Carnivale agreed to supply cocaine in bulk, and Gagliardi agreed to

resell it. Carnivale was eventually arrested, and he agreed to cooperate with the

authorities. He testified that he began supplying Gagliardi with cocaine for resale in

August 2002. Carnivale also testified that he supplied Gagliardi with cocaine on

October 3, 2002, and again on October 8 or 9, 2002. Finally, Carnivale testified that the

authorities intercepted two later cocaine shipments intended for Gagliardi and other

participants in the conspiracy. The first shipment was to have been delivered on

October 29, 2002, and the second on December 8, 2002.

         On February 15, 2004, a grand jury returned a four-count indictment against

Gagliardi. Count I charged that, between March and December 2002, Gagliardi

participated in a conspiracy to possess and distribute more than five kilograms of cocaine.

     1
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                                2
Count II charged that, on October 8 or 9, 2002, Gagliardi possessed with the intent to

distribute 500 grams of cocaine. Count III charged that, on October 29, 2002, he

attempted to possess with the intent to distribute between 500 grams and two kilograms of

cocaine. Finally, Count IV charged that, on December 8, 2002, he attempted to possess

with the intent to distribute between 500 grams and two kilograms of cocaine.

       Despite the District Court’s strong urging not to do so, Gagliardi insisted that he be

allowed to exercise his right to represent himself at trial. After conducting an extensive

colloquy with Gagliardi and determining that his waiver of the right to counsel was

knowing and voluntary and that he had the mental capacity to represent himself, the

District Court allowed Gagliardi to conduct his own defense.

       Gagliardi filed a motion for a bill of particulars and a motion to dismiss the

indictment due to alleged prosecutorial misconduct. As to the bill of particulars, he

argued that the indictment was vague and requested a list of all of the alleged drug

transactions on which the government intended to rely at trial. Regarding the motion to

dismiss, he argued that the prosecutor had committed misconduct by permitting testimony

before the grand jury that implied Gagliardi had mob connections. After the government

voluntarily gave Gagliardi a list of the dates of alleged drug transactions on which it

intended to rely on at trial, the District Court denied the defense motions. The October 3,

2002 drug transaction between Gagliardi and Carnivale was not included on the list of

drug transactions provided by the government.



                                             3
          Following an eight-day trial, a jury convicted Gagliardi on Counts I and III, and

acquitted him on Counts II and IV. After the verdict, Gagliardi filed a motion for a new

trial, alleging, inter alia, that he should have received a bill of particulars, that there was

insufficient evidence to support the jury’s verdict, and that the prosecutor had committed

misconduct at trial and before the grand jury. The District Court denied those motions,

and Gagliardi filed this timely appeal.

II.       Discussion

          On appeal, Gagliardi continues to act as his own counsel and alleges that the

District Court committed numerous errors. As discussed herein, his arguments are

unpersuasive.

          1.     Gagliardi’s Brady Rights Were Not Violated

          Gagliardi contends that the government violated his rights under Brady v.

Maryland, 373 U.S. 83 (1963), by failing to inform him that Thomas Carmean, one of the

government’s witnesses, had incorrectly identified him in a photo lineup.2 Brady holds

that the “suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment.” Id.

at 87. The “touchstone of materiality is a ‘reasonable probability’ of a different result.”

Kyles v. Whitley, 514 U.S. 419, 434 (1995). We conclude that no Brady violation

occurred here because, contrary to Gagliardi’s contention, the government disclosed

      2
    Gagliardi did not raise this issue in the District Court. Hence, we review his argument
for plain error. United States v. Boone, 279 F.3d 163, 174 n.6 (3d Cir. 2002).

                                                4
Carmean’s testimony in pretrial discovery. In fact, Gagliardi actually cross-examined

Carmean at trial about the incorrect identification.

       Gagliardi also alleges that the government violated Brady by failing to turn over

evidence regarding the drug transaction between him and Carnivale on October 3, 2002.

According to Gagliardi, introducing evidence of that transaction violated Brady because

the October 3, 2002 transaction was not on the list of drug transactions provided by the

government prior to trial. We disagree. Brady requires that the government turn over

evidence “favorable to [the] accused.” 373 U.S. at 87. Evidence that Gagliardi was

involved in a drug transaction can hardly be considered “favorable” to him and hence is

not covered by the obligation imposed by Brady. Further, even if Brady applied, the

record is clear that the evidence of his involvement in the October 3, 2002 transaction was

given to Gagliardi during pretrial discovery.

       2.     Gagliardi Knowingly and Voluntarily Exercised His Right to Act In His
              Own Defense at Trial

       Gagliardi next argues that the District Court erred in allowing him to conduct his

own defense at trial.3 He contends that, during trial, he suffered from various physical

and mental conditions which prevented him from understanding the nature of his decision

and preparing an effective defense. The record belies his contention. To be effective, a



  3
   We exercise plenary review over the legal conclusion that a defendant’s decision to
proceed pro se was voluntary, knowing, and intelligent. United States v. Peppers, 302
F.3d 120, 127 (3d Cir. 2002). We review the facts found by the District Court incident to
that legal determination for clear error. Id.

                                                5
defendant’s decision to proceed pro se must be “voluntary, knowing, and intelligent.”

Buhl v. Cooksey, 233 F.3d 783, 789 (3d Cir. 2003). During a hearing on Gagliardi’s

motion to represent himself, his attorney conducted an extensive direct examination into

his physical and mental health, and the government addressed those same issues on cross-

examination. The District Court also conducted an extensive colloquy with Gagliardi

before allowing him to defend himself. It considered whether he had unequivocally

expressed his desire to act pro se, whether he understood the charges against him, the

potential punishment he faced, the risks of proceeding without an attorney, and whether

he was competent to stand trial. See United States v. Peppers, 302 F.3d 120, 132 (3d Cir.

2002). The Court also forcefully urged Gagliardi not to defend himself. Nevertheless,

Gagliardi stated numerous times, in various ways, that he wished to represent himself,

that he was not suffering from any impairments that would affect his ability to act on his

own behalf, and that, although he suffered from depression and anxiety, those conditions

were controlled by the medication he was taking. In light of the record, Gagliardi’s

contention that the District Court erred in allowing him to proceed pro se is simply

without legitimate foundation.




                                             6
       3.     The Government Did Not Violate Federal Rule of Evidence 404(b)

       Gagliardi next argues that the government violated Federal Rule of Evidence

404(b) by introducing three instances of evidence of “other crimes, wrongs, or acts.” 4

First, he argues that Rule 404(b) barred the government from introducing evidence

regarding the previously-mentioned October 3, 2002 drug transaction. That evidence,

however, did not violate Rule 404(b) because, even though it was not specifically

mentioned in the indictment, it was clearly part of the alleged conspiracy and, therefore,

not evidence of a separate, uncharged crime.

       Next, Gagliardi argues that certain testimony by Steven Carnivale violated Rule

404(b). Carnivale testified that he sometimes gave Gagliardi small amounts of marijuana.

According to Gagliardi, Carnivale’s testimony violated Rule 404(b) because the

indictment charged only offenses relating to cocaine, not marijuana. However,

Carnivale’s testimony was given in the context of explaining that he sometimes received

payment for shipments of cocaine in marijuana rather than cash, and that he sometimes

gave some of the marijuana he had received to Gagliardi. Thus, Carnivale’s testimony

was not admitted for the purpose of showing that Gagliardi committed other, uncharged

crimes. Instead, it was admitted to show how the charged conspiracy operated.



  4
   Our review of the District Court’s evidentiary rulings is for abuse of discretion.
United States v. Serafini, 233 F.3d 758, 768 (3d Cir. 2000). To the extent the District
Court’s ruling turns on an interpretation of the Federal Rules of Evidence, our review is
plenary. Id.


                                             7
       Finally, Gagliardi argues that the government violated Rule 404(b) by introducing

testimony associating him with organized crime.5 Again, however, the testimony was not

introduced for any improper purpose. Instead, it was introduced to explain how Gagliardi

and Carnivale met each other.6 See United States v. Butch, 256 F.3d 171, 176 (3d Cir.

2001) (explaining, in the context of a Rule 404(b) challenge, that “testimony of a

co-conspirator could be considered relevant to provide necessary background

information, to show an ongoing relationship between the defendant and a co-conspirator,

and to help the jury understand the co-conspirator's role in the scheme”) (internal

quotation marks, punctuation, and citation omitted). In short, Gagliardi has failed to

show that the government violated Rule 404(b).

       4.     Gagliardi’s Motion to Dismiss the Indictment For Prosecutorial
              Misconduct Before the Grand Jury Was Properly Denied

       Before the grand jury, Carnivale testified that he and Gagliardi first met each other

at a meeting with “[s]outh Philly mob guys.” (Appellant’s App. at Grand Jury transcript

excerpt, p. 5.) Carnivale also said that he and Gagliardi took part in extortions, loan

sharking, and other illegal activities together. Gagliardi contends that the prosecutor



  5
  Carnivale testified that he was introduced to Gagliardi by members of the Philadelphia
mafia.
  6
   We do not suggest that a district court would be wrong to conclude that a seemingly
tangential detail such as Gagliardi’s alleged mob connections should be kept out of
evidence at trial after a Rule 403 balancing of unfair prejudice and probative value. But
that argument was not made either to the District Court or us, and we thus have no
occasion to consider its implications here.

                                              8
should not have been permitted to put that information before the grand jury because it

involved actions not charged in the indictment. He asserts that Carnivale’s testimony

unfairly prejudiced the grand jury, and, as a result, the District Court should have granted

his motion to dismiss the indictment.7 We disagree.

       Dismissal of an indictment is a “drastic remedy.” United States v. Morrison, 449

U.S. 361, 366 n.2 (1981). In United States v. Serubo, 604 F.2d 807 (3d Cir. 1979), we

held that a prosecutor’s questioning of a grand jury witness rose to the level of

misconduct when the prosecutor, without any evidentiary basis, repeatedly asked a

witness whether the defendants were members of the Philadelphia mafia, and whether

they had engaged in loan sharking. Id. at 815. The prosecutor also “impugned the

testimony of witnesses who failed to link the defendants with organized crime and

hectored other uncooperative witnesses for their failure to comply with unrelated Federal

laws.” Id. Here, by contrast, Carnivale’s testimony was founded on his personal

knowledge and described how he and Gagliardi met. The evidence explained the

development of the relationship between the co-conspirators and hence was arguably

connected to the offenses the government sought to charge. Cf. Butch, 256 F.3d at 176.

Further, the prosecutor expressly instructed the grand jurors that they were not to consider

any alleged organized crime activity when deciding whether to indict Gagliardi for



  7
   We exercise plenary review over the District Court’s legal conclusions with respect to
Gagliardi’s motion to dismiss the indictment, and we review its factual findings for plain
error. United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998).

                                             9
violating federal drug laws. We thus conclude that the prosecutor did not commit

misconduct and that the District Court acted within its discretion in denying Gagliardi’s

motion to dismiss the indictment.

       5.     The Indictment Did Not Vary From the Evidence Presented at Trial

       Gagliardi next asserts that there was a fatal variance between the indictment and

the evidence presented at trial because, at trial, the government introduced evidence of the

October 3, 2002 drug transaction even though that transaction was not mentioned in the

indictment.8 “To prevail on this issue, [a defendant] must show (1) that there was a

variance between the indictment and the evidence adduced at trial and (2) that the

variance prejudiced some substantial right.” United States v. Balter, 91 F.3d 427, 441 (3d

Cir. 1996). Gagliardi has not made the necessary showing.

       The indictment alleged that “[f]rom ... about March 2002, and continuing up to on

or about December 8, 2002 ... Anthony Gagliardi [violated 21 U.S.C. § 846] by

conspir[ing] and agree[ing] with Steven Carnivale ... to knowingly and intentionally

distribute in excess of five kilograms of ... cocaine.” (Supp. App. at 1.) The indictment

then listed a series of overt acts in furtherance of the conspiracy between March and

December 2002. Although the October 3, 2002 drug transaction is not among the overt

acts specifically listed in the indictment, “[i]t is well settled that the government can



  8
   We exercise plenary review over whether there was a variance between the indictment
and the evidence presented at trial. United States v. Lee, 359 F.3d 194, 207 (3d Cir.
2004).

                                              10
prove overt acts not listed in the indictment, so long as there is no prejudice to the

defendants thereby.” United States v. Schurr, 794 F.2d 903, 908 n.4 (3d Cir. 1986).

Gagliardi argues that he was prejudiced because he could not prepare an effective defense

without a full listing in the indictment of all of the drug transactions in which he allegedly

participated. That assertion rings hollow, however, because the government had provided

to him in pretrial discovery the evidence relating to the October 3, 2002 drug transaction.9

Because Gagliardi has failed to demonstrate prejudice, we need not consider whether a

variance actually exists.

       6.     The Jury’s Verdict Was Sufficiently Supported by the Evidence

       Gagliardi argues that the evidence introduced at trial was insufficient to support

the jury’s verdict.10 He says that he never participated in the conspiracy to possess and

distribute cocaine alleged in Count I of the indictment, and that the testimony of various

government witnesses to the contrary was not credible. He further argues that, with

regard to Count III of the indictment, the evidence at trial was insufficient because,

although he was present at the time and place where the cocaine was to be delivered,


  9
   In addition, we note that, in a conspiracy charged under 21 U.S.C. § 846, the
government is not required to prove any overt acts in furtherance of the conspiracy.
United States v. Shabani, 513 U.S. 10, 11 (1994).
  10
     In reviewing a challenge to the sufficiency of the evidence, we must “view the
evidence in the light most favorable to the government, and [we] will sustain the verdict
if any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Thus, a claim of insufficiency of the evidence places a very heavy
burden on an appellant.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)
(citations and quotation marks omitted).

                                              11
there was no evidence that he discussed drugs with the other individuals present, and he

claimed to have a legitimate purpose for his presence at the place of delivery. He ignores,

as we cannot, the weight of evidence against him. For example, Carnivale explicitly

testified that he and Gagliardi conspired to possess and distribute cocaine. Although

Gagliardi argues that Carnivale was not credible, there is no sound basis for intruding on

the jury’s decision to believe otherwise. With respect to the charge of attempted

possession and distribution of cocaine, the evidence at trial included testimony by

Carnivale that Gagliardi was to receive a portion of a cocaine shipment scheduled for

delivery on October 29, 2002, and Gagliardi was admittedly present at the location during

the time that the cocaine was to be delivered. Again, there was thus a clearly sufficient

basis for the jury’s verdict.

       7.      The Jury’s Verdicts Were Not Inconsistent

       Gagliardi next argues that the jury returned inconsistent verdicts.11 He points out

that, on Count I of the indictment, the jury convicted him of participating in a conspiracy

to distribute between 500 grams and one kilogram of cocaine but, on Count II of the

indictment, it acquitted him of possession with intent to distribute 500 grams of cocaine

on October 8 or 9, 2002. According to Gagliardi, the jury’s decision to acquit him on

Count II of the indictment is inconsistent with its decision to convict him on Count I.



  11
    Gagliardi did not raise this contention at the time of the verdict or in his post-trial
motions. Hence, our review is for plain error only. United States v. Boone, 279 F.3d 163,
174 n.6 (3d Cir. 2002).

                                            12
However, we see no error, much less plain error, in the District Court’s decision to

respect the jury’s determinations. Simply put, even if Gagliardi did not personally

distribute 500 grams of cocaine on October 8 or 9, 2002, that does not mean that he did

not participate in a conspiracy to distribute that amount or more. Indeed, Gagliardi

acknowledges that the alleged conspiracy involved quantities of cocaine in excess of five

kilograms.

       8.     The District Court Properly Instructed the Jury

       Gagliardi claims that the District Court erred by failing to instruct the jury that he

had the right to refuse to testify at trial.12 Gagliardi admits, however, that he requested

that such an instruction not be given because he believed that the jury would be more

likely to acquit him if it incorrectly believed that, by choosing to act as his own attorney,

he was legally barred from testifying as a witness at trial. Intent on foisting his erroneous

version of the law on the jury, Gagliardi specifically asked the District Court not to

instruct the jury that he had the right to refuse to testify. The District Court counseled

Gagliardi that omitting the instruction was unwise, but Gagliardi insisted that the

instruction not be given.

       Notwithstanding that position at trial, Gagliardi now insists that the District Court

should have given the instruction because, after granting his request, the District Court



  12
    Again, Gagliardi failed to allege any deficiency in the jury instructions in the District
Court. Hence, our review is for plain error only. United States v. Turks, 41 F.3d 893, 897
(3d Cir. 1994).

                                              13
briefly mentioned his right not to testify when it instructed the jury on the presumption of

innocence. According to Gagliardi, the District Court should have cured its supposedly

mistaken reference to the right to refuse to testify by giving a full instruction on that

right.13

           The argument is specious. Gagliardi made no such demand before the District

Court, and that Court’s passing reference to Gagliardi’s right not to testify did not

emphasize that he had chosen to exercise that right. Gagliardi cannot be heard to claim

error on appeal, given his own repeated insistence that the District Court not instruct the

jury on his right to refuse to testify.14 See United States v. Olano, 507 U.S. 725, 733

(1993) (explaining that “a defendant who knowingly and voluntarily pleads guilty ...




  13
    The District Court’s instruction on the presumption of innocence provided in
pertinent part that:

           The burden is never on the defendant to prove that he is not guilty. The
           government has the burden of proving each of the elements of the crimes
           charged beyond a reasonable doubt. And as you know, the law never
           imposes upon the defendant the burden or duty of calling any witnesses or
           producing any evidence or testifying himself.

(Supp. App. at 931-32)
  14
     Gagliardi also raises three other challenges to the District Court’s jury instructions.
He contends that the District Court did not instruct the jury that stipulated facts were to be
taken as proven, that the District Court incorrectly instructed the jury on the elements of
the crime of attempt, and that the District Court improperly informed the jury that Counts
III and IV of the indictment were identical to Count II. We have examined each of
Gagliardi’s additional challenges to the District Court’s jury instructions and conclude
that they do not constitute plain error and require no further discussion.

                                               14
cannot have his conviction vacated by court of appeals on the grounds that he ought to

have had a trial.”).

       9.      The District Court Properly Denied Gagliardi’s Motion for a Bill of
               Particulars

       Gagliardi’s next argument is that the District Court erred in denying his motion for

a bill of particulars.15 Once again pointing to the evidence regarding the October 3, 2002

drug transaction, Gagliardi contends that, because the government did not explicitly

include the October 3, 2002 transaction in the indictment, the District Court should have

granted him a bill of particulars. Again he is wrong. “A bill of particulars, unlike

discovery, is not intended to provide the defendant with the fruits of the government's

investigation. Rather, it is intended to give the defendant only that minimum amount of

information necessary to permit the defendant to conduct his own investigation.” United

States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 1985) (citations omitted). Further, “access

to discovery ... weakens the case for a bill of particulars.” United States v. Urban, 404

F.3d 754, 772 (3d Cir. 2005). Gagliardi had the evidence regarding the October 3, 2002

drug transaction no later than during pretrial discovery. Accordingly, it was no abuse of

discretion for the District Court to deny Gagliardi’s motion for a bill of particulars.




  15
    We review a District Court’s decision to deny a bill of particulars for abuse of
discretion. United States v. Eufrasio, 935 F.2d 553, 575 (3d Cir. 1991).


                                             15
       10.    Gagliardi’s Remaining Arguments Are Without Merit

       Finally, Gagliardi asserts that he is entitled to a new trial because a juror fell asleep

during the trial and because one of the jurors inappropriately discussed the case with an

alternate juror. However, he does not cite anything in the record to support his assertions.

He also argues that he did not receive notice that the District Court would consider a

conviction he received in 1991 when calculating his sentence. The record is clear,

however, that Gagliardi received the required notice.

III.   Conclusion

       Accordingly, we will affirm the judgment of conviction and sentence.




                                              16
