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United States v. Gagliardi

June 1, 2010

UNITED STATES OF AMERICA
v.
ANTHONY GAGLIARDI



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Before the Court is Defendant Anthony Gagliardi's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, we deny the Motion.

I. BACKGROUND

On May 27, 2005, Defendant was found guilty of conspiracy to distribute cocaine, (Count One) and attempted possession with intent to distribute between 500 grams and two kilograms of cocaine on October 29, 2002 (Count Three). The jury returned not guilty verdicts on additional counts of possession with the intent to distribute more than five kilograms of cocaine on October 8 or 9, 2002 (Count Two) and attempted possession with intent to distribute between 500 grams and two kilograms of cocaine on December 8, 2002 (Count IV). Although he originally retained counsel, Defendant filed a pre-trial motion seeking to represent himself. Following the required colloquy, we permitted Defendant to represent himself, with his prior attorney, Donald Manno, serving as standby counsel.

On July 5, 2005, we denied Defendant's post-trial motion.*fn1 He was sentenced on August 17, 2006, to 180 months imprisonment, to be followed by eight years of supervised release. By memorandum dated July 3, 2008, the United States Court of Appeals for the Third Circuit thoroughly analyzed each argument made by Defendant and affirmed the convictions. United States v. Gagliardi, 285 Fed. Appx. 11 (3d Cir. 2008).*fn2 The United States Supreme Court denied Defendant's petition for certiorari on March 29, 2009. Defendant's § 2255 motion was timely filed on February 2, 2010.

In the current motion, Defendant raises the following issues:

1. The juror misconduct issue raised on direct appeal arising from an allegedly improper discussion during deliberation between a deliberating juror and an alternate juror.

2. Ineffective assistance of counsel arising from Attorney Manno's failure to raise the prejudice resulting from the juror misconduct.

3. The two Brady violations raised on direct appeal.

4. The Rule 404(b) violations raised on direct appeal arising from the references to marijuana and loan sharking activities.

5. The bill of particulars issue raised on direct appeal.

6. The prosecutorial misconduct issues raised on direct appeal.

7. Improper jury instruction on the definition of reasonable doubt.

8. Structural error arising from egregious activity on the part of the Government causing Defendant to change his mind and not ...


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