                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-9-1999

USA v. Mastrangelo
Precedential or Non-Precedential:

Docket 98-1469




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Filed April 9, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1469

UNITED STATES OF AMERICA

v.

ADRIAN MASTRANGELO, JR.

Adrian Mastrangelo,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 94-cr-00522-5)
District Judge: Hon. Anita B. Brody

Argued December 17, 1998

Before: SLOVITER and COWEN, Circuit Judges,
and RODRIGUEZ,* District Judge

(Filed April 9, 1999)

Stephen P. Patrizio (Argued)
Dranoff & Patrizio
Philadelphia, PA 19103

 Attorney for Appellant



_________________________________________________________________
*Hon. Joseph H. Rodriguez, United States District Judge for the District
of New Jersey, sitting by designation.
       Ewald Zittlau (Argued)
        Assistant U.S. Attorney
       Michael R. Stiles
        U.S. Attorney
       Walter S. Batty, Jr.
        Assistant U.S. Attorney, Chief of
        Appeals
       Philadelphia, PA 19106

        Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Defendant Adrian Mastrangelo, Jr., appeals his
conviction following a jury trial for conspiracy to
manufacture methamphetamine in violation of 21 U.S.C.
S 846. He was charged on two counts of a 12-count
indictment with conspiracy to manufacture
methamphetamine and attempt to manufacture
methamphetamine. The jury convicted him of the
conspiracy charge, and acquitted him of the charge of
attempt to manufacture methamphetamine. Post-trial,
Mastrangelo moved for acquittal pursuant to Federal Rule
of Criminal Procedure 29(c) or, alternatively, for a new trial
under Rule 33. The District Court denied both motions.
United States v. Mastrangelo, 941 F. Supp. 1428, 1443
(E.D. Pa. 1996).

On the acquittal motion, the District Court concluded,
first, that there was sufficient evidence (viewed in a light
most favorable to the government) for a jury to conclude
that defendant was guilty of the conspiracy beyond a
reasonable doubt. Second, it held that the allegedly
outrageous conduct of the government in failing to preserve
evidence did not demonstrate any bad faith, because there
was no showing that the government knew the exculpatory
value of the evidence at the time. Third, it concluded that
the misdeeds of the government, which included allegations

                                 2
of permitting perjured grand jury testimony, were harmless
errors and did not substantially influence the grand jury's
decision to indict.

The District Court also rejected each of the seven
grounds underlying the motion for a new trial. The court
held Mastrangelo lacked standing to challenge the search of
the storage locker in which the methamphetamine
equipment and ingredients were found, and concluded that
it did not err in admitting into evidence a videotape
showing defendant opening the storage locker, co-
conspirators' statements, a stipulation intended to avoid
the introduction under Federal Rule of Evidence (FRE)
404(b) of evidence of Mastrangelo's prior conviction for
methamphetamine manufacture, the laboratory analysis
showing methamphetamine was present on equipment
found in the locker but damaged or destroyed before the
defendant could test the equipment, and photographs of
other items later destroyed. Finally, the District Court
determined that prosecutorial misconduct in the closing
statements and rebuttal either was cured or lacked an
improper effect on the jury. Thus, the court concluded that
its earlier refusal to declare a mistrial was not error.

The District Court sentenced Mastrangelo to 262 months'
imprisonment, the lowest possible on his offense level of 34,
and ten years' supervised release, but waived thefine.
Mastrangelo filed a timely appeal. We have jurisdiction
under 28 U.S.C. S 1291.

II.

A.

SUFFICIENCY OF THE EVIDENCE

There are a number of highly problematic issues raised
on this appeal. Because of the conclusion we ultimately
reach on the issue of prosecutorial misconduct, we will
discuss some of the other issues only briefly.

One of the contentions Mastrangelo presses most
vigorously is that there was insufficient evidence to support

                               3
the jury's verdict of guilty on the conspiracy charge. In
order to establish a conspiracy, the prosecution must
prove:

       (1) a shared "unity of purpose,"

       (2) an intent to achieve a common goal, and

       (3) an agreement to work together toward the goal.

United States v. Wexler, 838 F.2d 88, 90-91 (3d Cir. 1988).
This proof incorporates a demonstration that a defendant
has "knowledge of the illegal objective contemplated by the
conspiracy." Id. at 91.

1. The Evidence Against Mastrangelo

The District Court held there was sufficient evidence of
Mastrangelo's involvement in the conspiracy to
manufacture methamphetamine based on the following
evidence, which was detailed in the District Court's opinion.

Michael DeJulius, Raymond D'Aulerio, and Adrian
Mastrangelo, III (Adrian III), defendant's son, pled guilty to
conspiracy to manufacture and distribute
methamphetamine from approximately July 30 to October
4, 1993. Paul Rosa, a cooperating witness who acted for the
government, sought to purchase methamphetamine from
DeJulius and D'Aulerio, but they lacked methylamine, a
necessary ingredient. In what the District Court
characterized as a "reverse sting"1 organized by the
government, Rosa gave DeJulius the methylamine on
August 5 in four bottles in a white box with the name "J.T.
Baker," a chemical supply company, on the side of the box.
This name became the basis by which the government
could identify the box. DeJulius gave the box to a second
person who gave it to Adrian III, who, in turn, brought it to
"Garage G," a garage on Latona Street in Philadelphia.
Several hours later, Adrian III returned to get"what
appeared to be the box" and moved it to his own house
nearby. Mastrangelo, 941 F. Supp. at 1431.
_________________________________________________________________

1. The current United States Sentencing Guidelines Manual describes a
"reverse sting" as "an operation in which the government sells a
controlled substance to a defendant." U.S.S.G.S 2D1.1, comment. (n.15).

                               4
On August 7, Mastrangelo, driving his own Jeep, went to
his son's house, and minutes later the two left with Adrian
III driving the Jeep and Mastrangelo driving a white van.
They drove to another location in the same neighborhood
where they loaded various items into and out of the van.
Thereafter, they switched vehicles with Adrian III driving
the van and Mastrangelo driving the Jeep, and drove back
to Garage G, where they moved various items into, and
possibly out of, the van. Id.

The two then drove on I-95, a north-south expressway, to
a storage facility in Bristol, Pennsylvania. Along the way
they exited and reentered the highway once and exchanged
the lead a few times, but they always drove within the
speed limit, in what the District Court, based on trial
testimony, stated might have been a counter-surveillance
measure. After they left the highway, Mastrangelo parked
the Jeep at a nearby apartment complex and joined his son
in the van before they drove to the storage facility. They
punched the security-gate code at the entrance to the
facility, using what company records showed was the code
for storage locker H-16, remained for five minutes, and
then drove both vehicles back to Philadelphia. Id.

The storage locker H-16 was rented in the name of
someone who has not been located. The address listed on
the rental lease, however, was for an apartment in the
complex where Mastrangelo lived. The contact phone
number listed on the lease was for a phone located at an
address where Mastrangelo had previously lived and at
which two automobiles were still registered to him. A
handwriting expert testified that the lease for the locker
was probably signed by Mastrangelo and the locker rental
agent testified that the renter was approximately the same
height, age, and hair color as Mastrangelo, but neither
witness's testimony was unequivocal. Id. at 1432.

Although the government maintained surveillance at the
storage facility, company records revealed that someone,
without the government's knowledge, used the security
code for locker H-16 on August 8 to enter the facility and
remained about ten minutes. Thereafter, the government
covertly searched locker H-16 on August 25 and found the
J.T. Baker box, some ingredients and equipment necessary

                                5
for manufacturing methamphetamine, and one of the
marked bottles, now empty, with a residue of methylamine.
The government photographed the contents of the locker
before returning everything to its original state. Later, on
September 17, it seized all the drug-related materials from
the locker. Among the items seized were ingredients and
equipment necessary to make methamphetamine except for
phenyl-2-propanone, the most expensive ingredient, and
methylamine. Adrian III's fingerprint was on the
methylamine bottle. Mastrangelo's fingerprint was on a
funnel but there is no way to know the date when the
fingerprint was made. A government agent stated that it
was common to store some of the materials in separate
places and opined that whoever controlled the locker was
either the financier or the "cook." Id.

On October 4, the government executed search warrants
for the residences of DeJulius, D'Aulerio, and Adrian III, as
well as for Garage G. Documents belonging to Mastrangelo
and Adrian III and an old catalogue for chemical supplies
were found at the garage. Id.

On October 7, Mastrangelo went to the storage locker,
which was now empty except for some domestic items,
removed the padlocks, and abandoned the locker and the
few remaining items. He also transferred the title for his
Jeep to his girlfriend, and reregistered a truck he had
previously purchased to another person, although he was
still using the truck a year and a half later. The storage
company attempted unsuccessfully to contact someone
associated with the locker rental: one contact telephone
number was disconnected and the person at the other
could not explain why his number was used on the lease.
Mastrangelo was arrested at his sister's house more than a
year and a half later. Id. at 1432-33.

2. The District Court's Analysis of the Evidence

The District Court concluded that the circumstantial
evidence supported the inference that Mastrangelo knew
what materials were in H-16. The court referred to the two-
vehicle trip to the storage locker in August as one
transporting the methylamine, id. at 1434.

                                6
The District Court concluded that the jury could have
inferred that Mastrangelo "facilitated the goals of the
conspiracy by allowing materials which he knew were for
the manufacture of methamphetamine to be stored in[the]
locker over which he had control during the life of the
conspiracy." Id. at 1434. The court held that the jury could
have found that Mastrangelo controlled the locker because
of the testimony of the handwriting expert and the rental
agent, together with evidence that the misinformation on
the lease appeared designed to hide the identity of the
actual lessee. Id. Finally, the District Court took evidence
that Mastrangelo fled after discovering the empty locker
and transferred certain assets, such as the vehicles, as
proof of Mastrangelo's guilt.

3. This Court's Precedents

In several prior cases, this court has overturned
convictions for conspiracy in drug possession and
distribution because of the absence of any evidence that the
defendant had knowledge that drugs were involved. In
Wexler, 838 F.2d at 90-92, we reversed the defendant's
conviction because there was no evidence that the
defendant, who acted as a lookout and spoke with some of
the conspirators, knew what was behind the closed doors of
a truck that contained drugs. Although we believed that
Wexler probably suspected "that some form of contraband
was involved," that suspicion was insufficient to prove
knowledge of the conspiracy's objective. Accord United
States v. Cooper, 567 F.2d 252 (3d Cir. 1977) (reversing
conviction because there was no proof that defendant, who
rode cross-country in truck, knew locked compartment
contained drugs). In United States v. Salmon, 944 F.2d
1106 (3d Cir. 1991), there was evidence that the defendant
performed surveillance, possessed surveillance equipment,
spoke to the conspirators, and opened the trunk of a car
from which the government contended a wrapped package
was removed. Id. at 1113-15. After comparing the case to
Wexler, we held the evidence insufficient to show that the
defendant knew what was in the package, declining the
government's invitation to rule that the defendant's
suspicious movements near the trunk were sufficient to
support the conviction. Id.

                               7
More recently, in United States v. Thomas, 114 F.3d 403
(3d Cir. 1997), we held that the prosecution had failed to
prove that the defendant, who, in exchange for $500, went
to a hotel room to see whether the room contained a
suitcase, knew the suitcase contained drugs. There was
evidence that several calls were made from a conspirator's
phone to the defendant's home, pager, and cell phone, but
no evidence that the defendant knew any of the
conspirators. We concluded that the government had
shown that the defendant knew his activities were illegal,
but not that he knew drugs were involved.

And in United States v. Idowu, 157 F.3d 265 (3d Cir.
1998), we held there was insufficient evidence to convict a
defendant who arrived in a car with one of the participants,
was present during several conversations among the
conspirators, owned and carried the bag containing the
money, and knew that the money was to buy something
that would fit into a suitcase, because there was no
evidence that any of the conspirators ever mentioned illegal
drugs in the defendant's presence. But see United States v.
Touby. 909 F.2d 759, 771-72 (3d Cir. 1990) (upholding
conviction based on evidence that defendant received boxes
containing necessary chemical ingredients to make drugs
and that recipes and a laboratory for making the drugs
were found in her marital bedroom), aff 'd on other grounds,
500 U.S. 160 (1991)).

At oral argument, the government sought to distinguish
these cases from the one against Mastrangelo and,
methodically reviewing the evidence it presented, step by
step, piece by piece, made a vigorous argument that the
evidence here was sufficient to sustain Mastrangelo's
conviction. Although the evidence against Mastrangelo was
indirect, we believe that it was sufficient to permit the
District Court to send the case to the jury. The other cases
where we overturned the defendants' convictions involved
charges of conspiracy to possess a controlled substance
(often cocaine) and the missing ingredient was the
defendants' knowledge of the substance. Here, however,
Mastrangelo is charged with conspiracy to manufacture
methamphetamine, which is more like the conspiracy to
manufacture scenario presented by our decision in Touby,

                                8
909 F.2d at 771-72. There, the wife defendant had argued
there was insufficient evidence to support the jury's finding
of her guilt because there was no direct evidence of the
manufacture of the controlled substance. We held that
evidence of chemicals, recipes for the manufacturing
process, and a laboratory in the marital bedroom was
sufficient, although circumstantial, to permit the jury to
infer that she had the requisite knowledge, despite her
assertion that the chemical ingredients were only for a T-
shirt business.

Here, the government presented evidence, albeit slim and
circumstantial, from which the jury could infer that
Mastrangelo saw the boxes with the relevant equipment
and ingredients in the storage locker, joined with Adrian III,
a co-conspirator, to travel surreptitiously to the storage
locker, where the government subsequently found many of
the ingredients to manufacture methamphetamine, and had
control of that locker. Together with the Stipulation that
Mastrangelo had the chemical background to know the
equipment and ingredients necessary to make
methamphetamine, and the requirement that we view the
evidence in the light most favorable to the government, as
the verdict winner, this evidence is sufficient, but
concededly barely, to support a jury's inference as to
Mastrangelo's connection to the illegal conspiracy to
manufacture that was at the heart of the government's
case. Nonetheless, the slimness of the evidence is relevant
to our ultimate disposition.

B.

RULE 404(b): PRIOR CRIMES EVIDENCE

The government sought to introduce evidence that
Mastrangelo was convicted in federal court in 1984 of
conspiracy to manufacture, to possess with intent to
distribute, and to distribute methamphetamine, and in
state court in the same year. The District Court rejected the
government's effort to introduce evidence of the state
conviction but granted its motion as to evidence of the
federal crime. To avoid the prejudicial effect of the

                               9
government's introducing evidence of the prior crime, the
defendant agreed to stipulate that he "had the chemical
background to know the ingredients and equipment
necessary to make methamphetamine." Supp. App. at 822-
23. See United States v. Jemal, 26 F.3d 1267, 1272-75 (3d
Cir. 1994) (approving use of stipulations to avoid prejudice
flowing from admission of prior crimes evidence). To ensure
that the Stipulation was voluntary, see United States v.
Miller, 588 F.2d 1256, 1263-64 (9th Cir. 1988), the District
Court asked the defendant to take the stand and confirm
that he understood the Stipulation and that acceptance
was voluntary, which the defendant did. Supp. App. at 830-
33. Thereafter, the District Court advised the jury of the
Stipulation and did not admit evidence of the 1984
conviction.

Ordinarily, defendant's agreement to the Stipulation, on
the informed advice of counsel, would preclude any
objection on appeal. Here, Mastrangelo argues that the
Stipulation was induced by the District Court's erroneous
ruling that Mastrangelo's prior crime was admissible.

The Supreme Court has held that admissibility under
FRE 404(b) requires: (1) a proper evidentiary purpose; (2)
relevance under FRE 402; (3) a weighing of the probative
value of the evidence against its prejudicial effect under
FRE 403; and (4) a limiting instruction concerning the
purpose for which the evidence may be used. See
Huddleston v. United States, 485 U.S. 681, 691-92 (1988),
cited in United States v. Sampson, 980 F.2d 883, 886 (3d
Cir. 1992). The admission of prior crimes evidence under
Rule 404(b) is a matter for the District Court's discretion,
provided that the court explains how the probative value of
the evidence outweighs its prejudicial effect; if such an
explanation is lacking, and the record does not clearly
support the finding of probative value, the court of appeals
will do the balancing itself. United States v. Himelwright, 42
F.3d 777, 781, (3d Cir. 1994).

To meet the first requirement and show a proper
evidentiary purpose, the government must "clearly
articulate how that evidence fits into a chain of logical
inferences" without adverting to a mere propensity to
commit crime now based on the commission of crime then.

                               10
Sampson, 980 F.2d at 887. The government sought to
admit the evidence of Mastrangelo's prior conviction to
show Mastrangelo knew of the conspiracy's objectives and
intended to participate therein, but could not easily
articulate a chain of logical inferences that would have
made the prior crime evidence relevant to those issues.
Ultimately, the District Court stated that it would admit
evidence of the federal crime for purposes of proving
knowledge but not to show intent. Supp. App. at 723.

The court determined that the second requirement,
relevance, was met because the prior conviction established
that Mastrangelo knew that the materials found in the
storage locker could be assembled to manufacture
methamphetamine.

On the third prong, the court summarily stated that the
probative value outweighs the prejudice to Mastrangelo,
despite defense counsel's repeated assertions that the
government could establish Mastrangelo's knowledge of the
ingredients and equipment through alternate means.

Finally, on the fourth prong, the District Court declined
to provide a limiting instruction concerning the stipulation
although it would have been obligated to provide such an
instruction had it admitted evidence of the prior crime
itself.

We review the District Court's determination on the
admissibility of the evidence under the usual standard of
abuse of discretion. Although there may have been
adequate bases for the District Court's findings concerning
three of the four prongs, the failure of the District Court to
provide a clear explanation regarding the balance between
the evidence's prejudicial and probative effects is troubling,
particularly because the Stipulation plays an important
part in our analysis of the alleged prosecutorial
misconduct. However, we need not decide whether the
court erred in holding the government could introduce
evidence of Mastrangelo's prior crime because we believe
another issue is dispositive.

                               11
C.

PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENTS

It will be recalled that the Stipulation was a limited one:
Mastrangelo "had the chemical background to know the
ingredients and equipment necessary to make
methamphetamine." Significantly, Mastrangelo did not
stipulate that he knew how to make methamphetamine.
The difference is important. In fact, the District Court
refused the prosecutor's request that the Stipulation
contain language that Mastrangelo knew the process
needed to manufacture methamphetamine. App. at 634a1-
634a2.

Mastrangelo argues that the prosecutor's statements
regarding the Stipulation made in her closing and rebuttal
arguments went beyond the parameters of the Stipulation
itself. Mastrangelo focuses on a number of specific remarks.

In the first statement at issue, the prosecutor stated:

       When I opened . . . I told you what I was going to prove
       and I said [that] there will be more. And what more did
       I prove to you? The stipulation. The defendant has the
       chemical background to know the ingredients and
       equipment necessary to make methamphetamine.

       There is no evidence concerning anyone else involved in
       this conspiracy whether known or unknown.

App. at 732 (emphasis added). Mastrangelo's counsel
objected, and the district court sustained counsel's
objection but refused to order a mistrial. App. at 732.

Moments later, the prosecutor directly mischaracterized
the Stipulation, remarking, "[T]he defendant knew, based
upon that stipulation, I submit to you how to make
methamphetamine. I believe that is clear." App. at 732.

Later, in the prosecutor's closing statement, the
prosecutor again misrepresented the Stipulation, stating
that Mastrangelo "had the knowledge, the knowledge to
either make it--make the methamphetamine or to tell
someone else how to make it." App. at 735 (emphasis
added). Then, the prosecutor argued:

                               12
       That combined with the stipulation of knowledge, I
       would submit to you shows that the defendant passed
       the stage of just thinking about committing a crime
       and form[ed] the actual intent to do that crime, to
       manufacture methamphetamine.

App. at 736. The defense again moved for a mistrial, and
again the District Court denied the motion.

The impropriety of these statements is evident. They
distort the substance of the Stipulation, inflating the
limited stipulation that Mastrangelo had the chemical
background to know the ingredients and equipment
necessary to make methamphetamine to encompass a
meaning that the District Court had previously ruled
unwarranted, i.e., that because of his knowledge of the
ingredients and equipment needed, Mastrangelo knew how
to make methamphetamine. Furthermore, the prosecutor's
statement that there was no evidence that anyone else had
similar knowledge impermissibly shifted the burden of proof
to Mastrangelo to demonstrate that one of the other
conspirators knew how to make methamphetamine.

The District Court agreed that the prosecutor's
statements improperly shifted the burden to the defendant,
and discussed giving a curative instruction, but allowed the
jury to go to lunch before giving one. After the jury returned
and before the defendant's closing argument, the court gave
the following curative instruction regarding the Stipulation:

       The parties stipulated that the defendant had the
       chemical background to make methamphetamine. The
       Government, Ms. Howard, in its closing made reference
       to the fact [that] there was no evidence presented that
       anyone else had this chemical background and that
       therefore by inference the defendant, since he
       possessed this knowledge, must necessarily have been
       the maker.

       Such an inference is improper and should be stricken
       from your minds. There was no burden on the defense
       to produce evidence that no one else did or did
       not possess chemical knowledge to make
       methamphetamine.

                               13
       Furthermore, there is no evidence in this case that no
       one else did not have the knowledge to make
       methamphetamine.

App. at 747-48 (emphasis added). Ironically, the court's
statement in the curative instruction that the defendant
"had the chemical background to make methamphetamine"
misstated the Stipulation and repeated one of the
prosecutor's misstatements, thereby compounding the
error.

In rebuttal, the prosecutor once again improperly equated
the chemical background to know the ingredients and
equipment necessary to make methamphetamine and the
knowledge of how to make methamphetamine, when she
said:

       [T]hat's the difference between your knowing now what
       the ingredients are and how to make a cake, than
       someone who had the chemical background to know
       the ingredients and equipment necessary.

App. at 749 (emphasis added). The analogy is a poor one.
A child or a spouse may go to the store to buy the
ingredients to make a cake but not know what to do with
them once in the kitchen. The District Court sustained the
defense objection after which the following revealing sidebar
discussion took place:

       MS. HOWARD:     Just -- I really don't get this one.

       THE COURT:    I know you don't.

       MS. HOWARD:     I do apologize.

       THE COURT:    I know you really don't get it.

       MS. HOWARD:     I really don't.

       THE COURT:    You don't get it.

       MS. HOWARD:     Okay.

       THE COURT:    You don't get it.

       MR. PATRIZIO:    Defendant moves for a mistrial.

       THE COURT:    I'm considering it.

       MS. HOWARD:     Judge --

                                  14
       THE COURT:    I'm considering it.

       MS. HOWARD:    -- would you explain to me? I don't
       get it.

App. at 750. Apparently, the prosecutor did not recognize
the difference between having the chemical background to
know the ingredients and equipment needed to make
methamphetamine and knowing the process to make the
drug.

Many of the cases dealing with improper prosecutorial
comments have arisen in the context of prosecutorial
vouching but the legal issues are equally applicable here. In
deciding whether the prosecution has improperly
commented at trial, the court should look to the overall
context of the statements in the trial record. United States
v. Young, 470 U.S. 1, 11 (1985). Improper prosecutorial
comments may lead the jury to infer that the prosecutor
knows undisclosed facts which she could not present to the
jury. See United States v. Walker, 155 F.3d 180, 186 (3d
Cir. 1998).

Review of the legal standard enunciated in a jury
instruction is plenary, see United States v. Johnstone, 107
F.3d 200, 204 (3d Cir. 1997), but review of the wording of
the instruction, i.e., the expression, is for abuse of
discretion. United States v. Zehrbach, 47 F.3d 1252, 1264
(3d Cir. 1995) (en banc). If we conclude that a comment
was improper, we must apply a harmless error analysis,
looking to see if "it is highly probable that the error did not
contribute to the judgment." Id. at 1265 (internal quotation
marks omitted). The high probability standard is met when
the court possesses a "sure conviction" that the error did
not prejudice a defendant. Id. (internal quotation marks
omitted).

We have looked to three factors to determine whether
there was prejudice: the scope of the improper comments in
the overall trial context, the effect of any curative
instructions given, and the strength of the evidence against
the defendant. Id. Turning first to the place of the improper
comments in the context of this case, we must conclude
that they were central. The prosecution sought to have the
jury infer that Mastrangelo was the "cook," that is, the

                                 15
individual who actually turned the ingredients into
methamphetamine, but it had no evidence, direct or
indirect, of that fact. If the prosecutor could convince the
jury that Mastrangelo was the only conspirator who knew
how to make methamphetamine, the jury might reasonably
draw that inference. However, there was no evidence that
Mastrangelo knew how to make methamphetamine, and it
was highly improper, whether intentionally or inadvertently,
to shift the meaning of the Stipulation to fill in that missing
link.2

Arguably, a clear and forceful curative instruction from
the District Court might have cured the potentially
devastating effect of the prosecutor's misrepresentations. In
this case, unfortunately, the District Court itself misstated
the content of the Stipulation, which, even if it did not
further confuse the jury, certainly did not effect a cure.

Finally, as we discussed above, this is not a case where
the evidence of guilt is overwhelming. Quite the contrary.
The only conspirator whom the government could show
Mastrangelo knew and contacted was his own son. There is
no direct proof that Mastrangelo actually went to the locker
on August 7. Moreover, even if he went to the locker on
that day there is no direct proof that he saw the same
contents that the government photographed on August 25
(its first access to the locker) because the person who
entered the facility on August 8 using the code for locker H-
16 and who remained there for ten minutes may have
placed some or all of the potentially incriminating material
in that locker. Similarly, there is no direct proof that
Mastrangelo assisted in transporting to the storage locker
the methylamine provided through the government. The
government agents lost surveillance of the bottles at some
point after the initial controlled delivery. The government
conceded that it was unable to maintain an uninterrupted
view of the various homes and garages involved. Finally,
_________________________________________________________________

2. At oral argument, the government suggested that the Stipulation was
used only in connection with the attempt charge. The record shows
otherwise. See Trial Tr. April 17, 1996 at 66 (prosecutor refers to
contents of Stipulation as part of the evidence that showed that
Mastrangelo "was willfully a part of the conspiracy.").

                               16
there is no direct evidence that Mastrangelo had any
knowledge of the conspiracy's plan to manufacture
methamphetamine.

Although we concluded earlier that the jury could have
cumulated the permissible inferences to find sufficient
evidence to convict Mastrangelo of participation in the
conspiracy, there was no evidence, absent the prosecutorial
misstatements and the faulty curative instruction
improperly extending the Stipulation, from which the jury
could have inferred that Mastrangelo knew how to make
methamphetamine. Therefore, in this pivotal context, the
misstatements dramatically enhanced Mastrangelo's alleged
role in the conspiracy without supporting evidence.

The Stipulation was therefore crucial. The government's
repeated misrepresentations of that stipulation and the
faulty curative instruction, when considered under the
required analysis, were not harmless. We cannot possess a
"sure conviction" that these errors regarding the Stipulation
did not prejudice Mastrangelo and have significant effect on
the jury's decision.3

III.

For the reasons set forth, we will reverse the order of the
District Court denying defendant's motion for acquittal or,
in the alternative, a new trial, and will remand for a new
trial.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

3. In light of our holding, we need not consider the other errors
Mastrangelo raises in his brief.

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