United States v. Acosta-Gallardo
2011 U.S. App. LEXIS 18030
| 10th Cir. | 2011Background
- Acosta-Gallardo was convicted by a jury on Count One (conspiracy to traffic methamphetamine) and Count Eleven (using a telephone to facilitate a felony drug offense).
- Alvaro Alvarado-Sanabria, a co-defendant and government witness, testified he distributed meth for about three years and worked with Acosta-Gallardo through Garcia and Juvenal Garcia networks.
- Alvarado testified Acosta-Gallardo supplied pounds of meth in the summer of 2007 and that Acosta-Gallardo extended drugs to him on credit for distribution to Wyoming customers.
- Drugs were stored by Alvarado in a brown suitcase; Acosta-Gallardo was aware of the suitcase and its contents.
- The government introduced phone transcripts and conversations from September 12, 2009 showing coordination of drug delivery; Acosta-Gallardo delivered eight ounces after those calls.
- Federal agents conducted controlled purchases from Alvarado (Sept. 24, 2009 for four ounces; Oct. 13, 2009 for eight ounces), with marked funds recovered from Acosta-Gallardo’s vehicle; evidence suggested about ten pounds attributable to Acosta-Gallardo.
- DEA testified an estimated forty pounds of methamphetamine were involved in the investigation, with over ten pounds attributable to Acosta-Gallardo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Variance between indictment and trial evidence | Acosta-Gallardo argues evidence used for Count Eleven tracks Oct. 12, 2009 calls, not Sept. 12, 2009. | Acosta-Gallardo contends a fatal variance undermines Count Eleven. | No variance; trial evidence aligned with indictment. |
| Brady disclosure of exculpatory evidence | Acosta-Gallardo claims delayed disclosure of Alvarado’s proffer about jars could be exculpatory. | Acosta-Gallardo asserts Brady violation due to late disclosure and potential fingerprint evidence. | No Brady violation; no reasonable probability evidence would change outcome. |
| Venue for Counts One and Eleven | Wyoming venue was improper for Counts One and Eleven; venue instruction alleged to be structural error. | Argues improper venue and structural error due to lack of venue instruction. | Venue proper for Count One; for Count Eleven, venue proper under Rodriguez-Moreno-based framework as conspiracy/underlying felony; no structural error from missing venue instruction. |
| Sufficiency of interdependence for conspiracy | Alvarado and several cooperating witnesses allegedly conducted separate conspiracies without Acosta-Gallardo’s contact. | Argues lack of interdependence and separate conspiracies negate Count One. | Evidence supports interdependence; single conspiracy established; conviction affirmed. |
Key Cases Cited
- United States v. Ailsworth, 138 F.3d 843 (10th Cir.1998) (variance review; appellate standard for variance)
- United States v. Caldwell, 589 F.3d 1323 (10th Cir.2009) (de novo review for sufficiency; credibility preserved)
- United States v. Carnagie, 533 F.3d 1231 (10th Cir.2008) (variance and venue principles; conduct alignment)
- United States v. Cryar, 232 F.3d 1318 (10th Cir.2000) (locus delicti for crimes without explicit venue provisions)
- United States v. Rodriguez-Moreno, 526 U.S. 275 (1999) (multi-location locus delicti for offenses with continuing elements)
- United States v. Abuelhawa, 556 U.S. 816 (2009) (Section 843(b) scope and underlying felonies; personal purchase vs. felony distribution)