United States v. Smith, 2012 U.S. App. LEXIS 5848

Smith and Baker were convicted of conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine, and attempted possession of five kilograms or more; Baker also faced a telephone-use charge.
The government disclosed the identity of its confidential informant (Pedro Flores) mid-trial after attempting to withhold it pre-trial under the informant privilege.
Evidence included Aguilera and Torres testimonies and recorded conversations with the confidential source; recordings and transcripts were provided to the defense prior to trial.
The district court admitted the recorded conversations with a limiting instruction, after which the informant’s identity was disclosed to the jury.
At sentencing, Smith received a three-level enhancement under U.S.S.G. § 3B1.1(b) for supervising five or more participants; the district court relied on testimony from Aguilera and Torres despite some reliability concerns.
The Seventh Circuit affirmed the district court’s denial of a Rule 33 motion for a new trial and upheld the § 3B1.1(b) enhancement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether disclosure of the CS’s identity warranted a new trial	Smith and Baker claim prejudicial surprise from disclosure	Defendants contend the disclosure violated fairness and prejudiced defense	No reversal; no reasonable probability of acquittal absent disclosure
Standard for evaluating a Rule 33 new-trial motion after improper disclosure	Gov’t claims proper exercise of informant privilege; no prejudice shown	Defendants argue improper disclosure prejudiced defense preparation	Court applied correct standard; no abuse of discretion in denying new trial
Whether the § 3B1.1(b) adjustment was supported by reliable evidence	Smith argues unnamed couriers’ participation was based on unreliable testimony	Aguilera testimony, corroborated by Torres and other trial evidence, supports five or more participants	held that five or more participants finding was supported; enhancement affirmed

United States v. McGee, 408 F.3d 966 (7th Cir. 2005) (reversal only if a reasonable probability of a different outcome)
United States v. Moore, 641 F.3d 812 (7th Cir. 2011) (prosecutorial conduct assessed for fairness and due process)
United States v. Freeman, 650 F.3d 673 (7th Cir. 2011) (standard for abuse of discretion in discretion on new trial)
Stanley v. Bartley, 465 F.3d 810 (7th Cir. 2006) (requires proper legal standard for misapplication of law)
United States v. Johnson, 489 F.3d 794 (7th Cir. 2007) (guides reliability threshold for participation findings)
United States v. Acosta, 85 F.3d 275 (7th Cir. 1996) (unreliable or contradictory testimony affects quantity calculations)
United States v. Hankton, 432 F.3d 779 (7th Cir. 2005) (credibility and corroboration considerations in reliability assessments)
United States v. Torres-Ramirez, 213 F.3d 978 (7th Cir. 2000) (reliability and corroboration considerations in sentencing findings)
Gall v. United States, 552 U.S. 38 (2007) (standard of review for sentencing decisions)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance of counsel standard for prejudice)