UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4761

PHILIP MANGLITZ,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4762

PHILIP MANGLITZ,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-95-314-S)

Argued: January 30, 1998

Decided: April 28, 1998

Before WILLIAMS and MICHAEL, Circuit Judges, and KISER,
Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Clarke Francis Ahlers, Columbia, Maryland, for Appel-
lant. Richard Charles Kay, Assistant United States Attorney, Balti-
more, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,
United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Philip Manglitz was convicted in district court on several charges
relating to money laundering and drug (marijuana) trafficking. He
appeals his conviction, arguing mainly that the prosecutor engaged in
improper conduct that deprived him of a fair trial. He also argues that
the district court erred in using the drug conspiracy guideline instead
of the money laundering guideline in setting the sentence for his drug
conspiracy conviction. For the reasons that follow, we affirm his con-
viction and sentence.

I.

Randolph Ayersman and Dana Kleberg were part of a marijuana
importation and distribution ring. The marijuana was harvested in
Mexico, imported into California, and then transported to Ayersman
in Maryland. Ayersman would consign the marijuana to Kleberg, who
would supply it to other dealers. Part of the proceeds from the mari-
juana sales journeyed back through the same conduit, mainly in bun-
dles of $5,000 placed in brown paper bags. This operation generated
large cash profits for Kleberg and Ayersman, which they sought to
launder.

The defendant in this case, Philip Manglitz, volunteered his ser-
vices and that of his real estate company, Carman Associates, to laun-

                    2
der cash for the two marijuana traffickers. Manglitz would sell plots
of land in Howard County, Maryland, to Ayersman and Kleberg in
exchange for cash payments from the profits of the drug trafficking
operation. Manglitz would then misrepresent the sale price of the land
on the sales contracts at far below the amount Ayersman and Kleberg
paid. This way, Ayersman and Kleberg would turn their drug traffick-
ing profits into "legitimate" real estate investments, and Manglitz and
his partner, Ronald Carter, would pocket the excess cash. Since
Manglitz handled the money in these transactions, Carter did not
know the source of the money.

Ayersman was arrested by federal agents, and he and Kleberg
began to cooperate with the government. Kleberg taped several con-
versations with Manglitz, in which Manglitz made several incriminat-
ing statements. The testimony of Ayersman, Kleberg and other
cooperating witnesses placed Manglitz at the heart of the money laun-
dering scheme, with Manglitz receiving $5,000 bundles of cash in
brown paper bags from Ayersman and Kleberg.

On July 27, 1995, Manglitz was indicted for conspiracy to distrib-
ute marijuana and money laundering. Prior to trial Judge Smalkin
granted a motion in limine under Fed. R. Evid. 404(b) precluding the
government from introducing certain evidence of prior criminal acts
by Manglitz. This evidence included Manglitz's 1972 drug importa-
tion conviction and the specifics of his history in the marijuana trade
in the 1970s and early 1980s. Thereafter, the case was assigned to
Judge Maletz for trial. Judge Maletz confirmed the prior evidentiary
rulings and further ruled that evidence suggesting that Manglitz
threatened witnesses with physical violence was inadmissible under
Fed. R. Evid. 403.

On June 20, 1996, the jury convicted Manglitz of conspiracy to dis-
tribute marijuana, 21 U.S.C. § 846, conspiracy to launder money, 18
U.S.C. § 1956(h), money laundering, 18 U.S.C.§ 1957(a), and aiding
and abetting, 18 U.S.C. § 2. At sentencing Manglitz argued that the
applicable guideline was § 2S1.1, which concerns money laundering,
instead of § 2D1.1, which concerns drug distribution. The court dis-
agreed and sentenced him to 108 months of imprisonment. Manglitz
now appeals.

                    3
II.

A defendant must satisfy a two-part test to bring about the reversal
of his conviction for prosecutorial misconduct. Specifically, the
defendant must show that the prosecutor's conduct was (1) improper
and (2) "prejudicially affected the defendant's substantial rights so as
to deprive [him] of a fair trial." United States v. Wilson, 135 F.3d 291,
297 (4th Cir. 1998) (citations and internal quotations omitted); United
States v. Harrison, 716 F.2d 1050, 1053 (4th Cir. 1983).

Manglitz claims that there were several instances where the prose-
cutor engaged in misconduct requiring reversal. He first argues that
the prosecutor acted improperly by withholding exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks
Act, 18 U.S.C. § 3500. He further contends that the prosecutor delib-
erately flouted the trial court's evidentiary rulings and elicited inad-
missible testimony from witnesses during the trial. Finally, Manglitz
alleges that the prosecutor's closing argument discussed excluded evi-
dence and impermissibly commented on his silence during trial. We
examine each of these arguments in light of the legal standard for pro-
secutorial misconduct.

A.

Manglitz first argues that the prosecution failed to provide him
written records concerning his partner, Carter. These records con-
tained notes from Carter's initial statements to federal investigators,
in which Carter suggested that Manglitz received the large amounts
of cash in question from the sale of farm equipment rather than
money laundering. This evidence was not turned over to Manglitz
until the judge discovered it by chance while reviewing government
reports of witness interviews for a different purpose during trial.
Manglitz argues that by not handing these notes over to him, the pros-
ecutor acted improperly in violation of Brady v. Maryland, 373 U.S.
83 (1963), which requires the government to disclose to the defense
any exculpatory information.

There is no question that this material was exculpatory or that the
prosecution was obligated to turn it over. This does not automatically
mean that Manglitz's rights under Brady were violated, however.

                    4
Belated disclosure of Brady material is a constitutional violation only
if the defendant was unable to make effective use of the exculpatory
material initially kept from him. See United States v. Smith Grading
& Paving, Inc., 760 F.2d 527, 532 n.6 (4th Cir. 1985). Here, the infor-
mation was disclosed to Manglitz before Carter testified. Manglitz
therefore had a full opportunity to prepare for and execute an effec-
tive cross examination based on that material. Indeed, the only preju-
dice Manglitz can claim is that he would have cited the allegedly
exculpatory evidence in his opening statement. However, because
Manglitz was able to make effective use of the material in cross-
examination, he was not unduly prejudiced by his inability to cite it
in his opening statement. Since there was no Brady violation in the
end, there was no prosecutorial misconduct that warrants reversal.

Similarly, Manglitz alleges that the prosecutor failed to disclose
handwritten notes made by federal agents when they interviewed
Ayersman. The trial judge found that this material should have been
disclosed under the Jencks Act, 18 U.S.C. § 3500. The Act requires
that statements made by a government witness must be turned over
to the defense after the direct examination of that witness at trial. Just
prior to Ayersman's testimony, the judge ordered the production of
the agents' handwritten notes of Ayersman's statements to them.
Although the government objected, arguing that a typed copy of the
notes had already been produced, the judge did not rescind the order
for production.

As with the Brady material, these notes were turned over to
Manglitz in time for him to review them before cross-examining
Ayersman. This is in literal compliance with the Jencks Act's require-
ment that such material be provided after the direct testimony of the
witness. Furthermore, the handwritten notes were duplicative of the
typed statements previously received by the defense. Because the
legal requirements of the Act were complied with, and because
Manglitz was able to use the material at the appropriate time, there
was no conduct by the prosecutor that requires reversal.

B.

Manglitz also points to the prosecutor's tactics in his examination
of certain witnesses as further evidence of misconduct. Specifically,

                     5
Manglitz argues that the prosecutor deliberately framed his questions
to elicit evidence that had been excluded by the court's order. The
first instance concerns evidence that Manglitz had been active in the
drug trade in the late 1970s and early 1980s and that he had been con-
victed for importing marijuana in 1972. Before the trial began, Judge
Smalkin had excluded this evidence, saying that these prior bad acts
were too remote in time to be probative in Manglitz's impending trial.
During the trial, the prosecutor elicited the following testimony from
Kleberg:

         Q Did [Manglitz] say thing about the marijuana business?

         A Yes.

         Q What did he say about it?

         A That he had been in the business at one time.

         Q What else did he tell you about the marijuana business?

         A Well, he had been arrested down on the Texas-Mexican
         --

Judge Maletz halted the testimony immediately. After consulting with
counsel, the judge issued the following curative instruction:

         THE COURT: Now the jury may remember the testimony
         of this witness about a conversation he had with Mr.
         Manglitz aboard a plane on route from Acapulco back to the
         United States. At one point, you may recall, Mr. Kay made
         the following inquiry: And what else did he say? I sustained
         an objection.

          Now do members of the jury recall what this witness's
         answer was before I sustained the objection? Well, that
         answer was totally inappropriate. It will be totally disre-
         garded. The witness should not have answered in view of
         the fact an objection was pending.

                    6
           I will repeat, the question was improper, the answer was
          not only improper it was prejudicial and shall be disregarded
          in toto as though you had never heard it.

The prosecutor knew that the evidence about Manglitz's history had
been specifically excluded by the judge. He also should have known
that by pressing this line of inquiry he ran a considerable risk of vio-
lating Judge Smalkin's earlier ruling. We therefore agree with
Manglitz that the prosecutor went too far in questioning Kleberg.
However, we disagree with Manglitz that the testimony elicited in the
improper questioning was so prejudicial as to mandate a reversal.

One of the factors which we must consider in evaluating prejudice
is whether the trial court issued a curative instruction. A curative
instruction can prevent an otherwise prejudicial comment from mis-
leading the jury. See United States v. Loayza , 107 F.3d 257, 262 (4th
Cir. 1997). Here, the judge gave a very strong instruction admonish-
ing the jurors to disregard the testimony. The judge moved quickly
and decisively, and we think his action was sufficient to preserve the
integrity of the trial in the face of the prosecutor's improper question-
ing. Accordingly, we find no prejudice here.

Similarly, Manglitz argues that the prosecutor acted improperly by
eliciting other testimony about Manglitz's past as a drug trafficker.
Judge Maletz had ruled before trial that the government could pro-
duce testimony from James Lee about his money laundering scheme
with Manglitz in the 1970s. Specifically, Lee could testify that
Manglitz had sold land to him in exchange for cash from drug pro-
ceeds. The court further ruled that any testimony by Lee about
Manglitz's direct involvement in marijuana trafficking (as opposed to
money laundering) would be excluded. When he examined Lee at the
trial, the prosecutor first asked him if he had ever purchased property
from Manglitz. Lee described how he had purchased land from
Manglitz using $50,000 in cash from drug proceeds. The prosecutor
then asked why Lee had given the drug money to Manglitz. Lee
responded: "It was because of my partner was doing a drug deal in
Miami." Again, the trial judge immediately stopped this line of ques-
tioning. Manglitz argues that this question and answer violated the
judge's pretrial ruling against presenting evidence about Manglitz's
drug trafficking activities.

                     7
We disagree. The jury only heard that Lee had an unidentified part-
ner doing a drug deal in Miami. This was consistent with the trial
judge's ruling that Lee, in testifying about laundering money through
Manglitz, could say that he (Lee) used drug proceeds to buy land
from Manglitz. Lee's isolated answer that referred to his unnamed
drug partner, without more, could not be read to suggest that Manglitz
had been a drug trafficker in the past. We do not see how the prosecu-
tor's question, which led to the one sentence answer by Lee,
amounted to improper conduct by the prosecutor.

Finally, Manglitz contends that the prosecutor tried to introduce
excluded evidence that Kleberg feared physical harm from Manglitz.
Before trial, Judge Maletz considered a motion from Manglitz to
exclude a letter by Kleberg memorializing a conversation he had with
Ayersman. The letter indicates that Ayersman warned Kleberg to fear
Manglitz and intimated that Manglitz had murdered his own brother.1
The judge ruled that this evidence was inadmissible as unduly preju-
dicial under Fed. R. Evid. 403.

In Manglitz's cross-examination of Kleberg at trial, Kleberg was
asked when he first mentioned Manglitz's name to federal investiga-
tors. The following exchange ensued:

          Q Well, the area of questioning by [DEA agent] Forletta
          at the first meeting with you where the name Mr. Manglitz
          came up was an area of questioning involving your assets,
          is that correct?

          A No, it wasn't.

          Q What was the topic?

          A My personal safety?

          Q Oh, your safety?

        A Yes.
_________________________________________________________________

1 This allegation is otherwise unsubstantiated in the record.

                    8
         Q You were scared for your safety?

         A Yes.

         Q You are the guy with all the guns, right?

         A I was afraid for my personal safety.

         ...

         Q And so you said to the DEA I am scared of certain peo-
         ple, is that correct?

         A That is correct.

         Q I see. So naturally the DEA took interest in the people
         you were scared of, is that correct?

         A That is correct.

As a result of this testimony, the judge instructed the prosecutor to
tell Kleberg "to make no reference whatsoever to any violence or
threat by Mr. Manglitz" during redirect. During his questioning of
Kleberg on redirect, the prosecutor asked him: "You testified on
cross-examination that you were concerned about personal safety, do
you recall that?" The judge halted the proceedings and criticized the
prosecutor at the bench for asking the question. The judge then
instructed the jury to draw no inference from the question. Manglitz
urges that this question constituted prosecutorial misconduct.

The judge's pretrial ruling was clear that no reference was to be
made at trial to the Kleberg letter documenting the conversation
between Ayersman and Kleberg. Manglitz, however, cross-examined
Kleberg on a different topic: the circumstances under which
Manglitz's name came up in a meeting between Kleberg and federal
agents. The judge's pretrial ruling did not cover the meeting between
Kleberg and federal agents, and Manglitz opened the door by cross-
examining Kleberg about this meeting. The judge nevertheless
admonished the prosecutor just before Kleberg's redirect examination

                    9
to make sure that Kleberg did not refer to "any violence or threat"
made by Manglitz. This admonition did not appear to bar the prosecu-
tor from asking Kleberg on redirect about his cross-examination testi-
mony concerning his meeting with federal agents. Kleberg had
testified under cross-examination that he first mentioned Manglitz's
name to the agents in connection with Kleberg's concern for his own
personal safety. On redirect, the prosecutor referred to Kleberg's testi-
mony about the meeting with federal agents by asking if he remem-
bered testifying that he had been concerned about personal safety
during the meeting. When the judge stopped the prosecutor, the prose-
cutor said he expected Kleberg to reply to this question by simply
stating what he had already indicated on cross-examination, that he
was afraid of Manglitz. The prosecutor also told the judge that Kle-
berg's testimony would not have referred to "violence or threats" by
Manglitz. We need not decide whether the prosecutor violated the
judge's admonition.

Even if the prosecutor's question was improper, Manglitz can show
no prejudice from it. Among the factors we must consider in evaluat-
ing prejudice from prosecutorial impropriety is the degree to which
the conduct would mislead the jury and whether there was a curative
instruction by the court. See Loayza, 107 F.3d at 262-63. Here, the
prosecutor's question was prompted by Manglitz's cross-examination
of Kleberg. Moreover, all that the jury heard was the prosecutor ask-
ing a question that restated Kleberg's earlier testimony as elicited by
Manglitz. Furthermore, the judge issued a very strong curative
instruction immediately after the question was asked. When we con-
sider the question and the judge's prompt curative instruction
together, we do not see any prejudice.2

C.

Manglitz also charges that the prosecutor made improper remarks
to the jury in his closing. Specifically, he argues that the prosecutor
improperly accused him of bribing witnesses and impermissibly com-
_________________________________________________________________
2 Manglitz also asserts that a question to Carter by the prosecutor
implied that Manglitz had committed bank fraud. Because the judge
struck the testimony and directed the prosecutor to make no use of it dur-
ing his closing argument, we find no prejudice.

                    10
mented on the fact that Manglitz exercised his right not to testify. We
disagree.3

1.

In a closing argument, a prosecutor may argue that the evidence
gives rise to an inference, so long as that inference can be reasonably
drawn. See Wilson, 135 F.3d at 298. He may not press the inference
so far that the facts do not support it, however. See id.

Manglitz contends that the prosecutor misrepresented the evidence
by arguing that Manglitz offered a bribe to Kleberg in exchange for
his silence. These statements were based on a taped conversation
between Manglitz and Kleberg made before Manglitz's arrest.
Manglitz stated on tape that "if you guys come through stand up guys,
right, and you don't roll over, I'm gonna bend over backwards to help
you do whatever you wanna do." Manglitz offered to send Kleberg
money in the unlikely event that Kleberg went to jail. He then dis-
cussed how valuable it was to a prisoner to receive money from peo-
ple outside the prison:

          You can buy sneakers while you're in there when your
          sneakers wear out. All sorts of things, so- sh--, this guy up
          in Hagerstown was even telling me he can buy a t.v.. I sent
          him a thousand bucks. . . .

          Years ago when, when he went down for, for a couple keys
          of coke, and ah, I sent him money for a t.v.. He was top dog
          in there you know. If you got money to draw, most of the
          guys that go in there have gotten wiped out of everything.
          They don't got a pot to p--- in . . . .

Id. Subsequent testimony revealed that Lee, Manglitz's partner in
laundering drug money in the 1980s, was the prisoner in Hagerstown
_________________________________________________________________
3 Manglitz also argues that the prosecutor misrepresented the testimony
of Cooper, Forest, Lee and Kleberg. Because we do not find anything
improper in the prosecutor's characterization of that testimony, we reject
Manglitz's claims.

                    11
to whom Manglitz sent the money, although Lee denied that he had
any understanding with Manglitz.

From this evidence, the prosecutor argued that Manglitz was offer-
ing to pay Kleberg and Ayersman if they went to prison in exchange
for their silence. This seems a reasonable inference from the evidence
in the record. While Lee denied that he had an understanding with
Manglitz, Manglitz told the story to Kleberg in such a way as to allow
a reasonable inference that he had. In any event, the prosecutor was
arguing that Manglitz had tried to bribe Kleberg. This was a fair argu-
ment, particularly in light of Manglitz's statement that he would
"bend over backwards" if Kleberg would not"roll over." We conclude
that the prosecutor did not act improperly in making this argument.

2.

Manglitz also contends that the prosecutor in his rebuttal argument
impermissibly commented on Manglitz's refusal to testify. A state-
ment by the prosecutor is improper if it is manifestly intended to be,
or would naturally and necessarily be taken to be, a comment on the
defendant's failure to testify. See United States v. Anderson, 481 F.2d
685, 701 (4th Cir. l973), aff'd sub nom. Anderson v. United States,
417 U.S. 211 (1974). The statement Manglitz complains of referred
to an aborted transaction on February 28, 1995, in which Manglitz
refused to accept a cash payment from Kleberg while being taped. In
his closing argument, Manglitz invited the government to explain why
Manglitz did not take the cash. In reply, the prosecutor noted that
Manglitz first looked at the cash and appeared ready to accept it
before having a sudden change of heart when he entered Jack Coo-
per's office to close the deal. "What happened when they got to Mr.
Cooper's office? . . . Who knows? Only one person knows. Only one
person in the world who knows and that is Philip Manglitz, he
knows." The prosecutor went on to state the inference that Manglitz
suspected that Carter was taping the conversation. At this point the
judge court admonished the jury not to draw any conclusion from the
fact that Manglitz did not take the stand.

We find that the statement about what was in Manglitz's mind dur-
ing the aborted transaction was invited by the defense. When the
defense does something to invite an allegedly improper comment by

                    12
the prosecutor, that weighs against the prejudicial nature of the com-
ment. See United States v. Harrison, 716 F.2d 1050, 1053 (4th Cir.
1983). Here, the defense challenged the prosecutor to explain what
caused Manglitz to decline the cash offered by Kleberg in that meet-
ing. The prosecutor was merely drawing reasonable inferences from
the evidence in order to answer the question. In so doing, he merely
noted that only Manglitz knew what he was thinking at that time. This
is similar to a case where a prosecutor argues that a witness's testi-
mony was uncontradicted, even though the only other person who
could contradict that testimony was the accused. We have repeatedly
found that tactic to be proper. See United States v. Francis, 82 F.3d
77, 78 (4th Cir. 1996). Even if the prosecutor's statement here was
improper, the judge issued a strong curative instruction which avoided
any prejudice to Manglitz as a result of it. Cf. Loayza, 107 F.3d at
262.

The prosecutor continued his argument by agreeing with the
judge's instruction and emphasizing that the government had the bur-
den to prove its case beyond a reasonable doubt."And we have met
that burden. I don't mean to suggest anything else to you about the
defendant not taking the stand." After a defense objection, and the
judge's suggestion that the prosecutor restate the sentence, the prose-
cutor modified his statement: "I don't want to suggest anything to you
about Mr. Manglitz not taking the stand." Manglitz contends that the
prosecutor's first follow-up statement was improper because of the
word "else." He argues that by using this word the prosecutor implied
that it was appropriate for the jury to take Manglitz's failure to testify
into account in considering whether the government met its burden.
While we agree that the word might have been better left unsaid, we
are not convinced by Manglitz's argument that this one word demon-
strates deliberate misconduct by the prosecutor. Rather, the circum-
stances indicate that it was a slip of the tongue. As a result, we do not
think the prosecutor's first formulation (using"else") was manifestly
intended to comment on Manglitz's silence. See Anderson, 481 F.2d
at 701. Furthermore, the prosecutor had just emphasized the govern-
ment's exacting burden of proof. We do not see how adding the word
"else" could be taken to suggest that the burden was somehow less-
ened by Manglitz's silence. At any rate, the prosecutor corrected his
statement immediately and made it abundantly clear that the jury
could draw no conclusion from Manglitz not taking the stand. This,

                     13
combined with the court's instruction given a minute or so earlier, is
enough to neutralize any possible prejudice to Manglitz.

Taken as a whole, therefore, we conclude that the prosecutor's
closing argument did not meet the standard of impropriety and preju-
dice required to reverse a conviction on the grounds of prosecutorial
misconduct.4

III.

Manglitz also argues that the district judge erred in applying the
Sentencing Guidelines. He claims that because his conviction stems
from the fact that he laundered money for a marijuana distribution
ring, he should be sentenced under the money laundering guideline
instead of the drug conspiracy guideline. We disagree.

Manglitz was convicted of violating 21 U.S.C. § 846, conspiracy
to distribute marijuana. The Guidelines provide that the sentence for
a conviction derives from the section "most applicable to the offense
of conviction." § 1B1.2(a). Application Note 1 to this section points
to the statutory index included in Appendix A for guidance. That
index clearly indicates that the appropriate guideline for sentencing
under 21 U.S.C. § 846 is § 2D1.1, "Unlawful Manufacturing, Import-
ing, Exporting, or Trafficking (Including Possession with Intent to
Commit These Offenses); Attempt or Conspiracy." We are bound to
follow the commentary of the sentencing guidelines as authoritative.
See Stinson v. United States, 508 U.S. 36 (1993). Since the guidelines
clearly indicate that the conduct of Manglitz's conviction, conspiracy
to distribute marijuana, is covered by § 2D1.1, the judge did not err
in applying that guideline.
_________________________________________________________________

4 Manglitz presses the further argument that the prosecutor behaved
improperly in the grand jury proceedings by misrepresenting the evi-
dence. But a guilty verdict in a jury trial renders any error before a grand
jury harmless. See United States v. Mechanik, 475 U.S. 66 (1986).
Because we affirm Manglitz's conviction, we reject his grand jury claim.

                     14
Manglitz's conviction and sentence are

AFFIRMED.

                   15
