U.S. v. Mastrangelo

• Citation: 662 F.2d 946
• Decision Date: 28 October 1981
• Docket Number: No. 257,D,257
• Parties: UNITED STATES of America, Appellee, v. Richard MASTRANGELO, Appellant. ocket 81-1270.
• Court: U.S. Court of Appeals — Second Circuit

Page 946

662 F.2d 946

UNITED STATES of America, Appellee, v. Richard MASTRANGELO, Appellant.

No. 257, Docket 81-1270.

United States Court of Appeals, Second Circuit.

Argued Sept. 17, 1981.

Decided Oct. 28, 1981.

Gerald Shargel, New York City (Graham Hughes, New York City, of counsel), for appellant.

Susan E. Shepard, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty. for the E. D. New York, Vivian Shevitz, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before OAKES and MESKILL, Circuit Judges, and BLUMENFELD, District Judge. ^*

OAKES, Circuit Judge:

This expedited appeal raises anew the question whether there was "manifest necessity," United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), for the declaration of a mistrial. What makes this case unique is that the mistrial was declared following the killing of the Government's only witness against appellant, Richard Mastrangelo. The killing occurred on the witness's way to the courtroom to testify in a trial in which the Government's case against the codefendant, Joseph Dazzo, was essentially complete. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, denied appellant's motion to dismiss Counts 1, 4, and 5 of the indictment on the ground of double jeopardy. We hold first that appellant had for all practical purposes withdrawn his previous motion for a mistrial on other grounds, so that United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976), does not apply and we must examine the declaration of the mistrial under the manifest-necessity standard. We hold second, however, that the court's ordering a mistrial after the witness's murder was proper under that standard, and we accordingly affirm.

FACTS

Appellant Mastrangelo and his codefendant Joseph Dazzo were charged in a superseding indictment, along with three others who were severed before trial, with conspiracy to import and to possess with intent to distribute substantial quantities of marijuana, 21 U.S.C. § 846(1) (Count 1), possession with intent to distribute of approximately 23.4 tons of marijuana (a Schedule I controlled substance) and 499,000 Methaqualone tablets (a Schedule II controlled substance), 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (Count 4), and intentional importation into the United States at Yancarib Enterprises in Queens, New York, aboard the vessel Terry's Dream, of the same amounts of marijuana and Methaqualone, 21 U.S.C. §§ 952(a), 960, 18 U.S.C. § 2 (Count 5). Count 6, which was severed before the Mastrangelo-Dazzo trial, charged Mastrangelo with knowingly and corruptly endeavoring to influence the due administration of justice, 18 U.S.C. § 1503. ¹

The Government's evidence at the trial before Judge Weinstein that commenced on April 27, 1981, established the existence of a conspiracy to import boatloads of marijuana into New York from Colombia, South America, between November 10, 1977, and November 11, 1978. On the latter date law enforcement officers in Queens interrupted the offloading of a 75-foot shrimp boat known as Terry's Dream, which members of the conspiracy had purchased in Florida in November 1977, and used several times for marijuana importation. At the Yancarib Marina in Queens the officers seized the shrimp boat, a tugboat called the Bill Mather, four trucks, three vans, and a Buick sedan. The vessels and vehicles contained a total of 23.4 tons of marijuana and 499,000 Methaqualone tablets. The persons offloading the boat escaped.

At trial, four witnesses connected codefendant Joseph Dazzo to the purchase and repair of the tugboat used to bring the Terry's Dream into New York harbor. Frederick Ardolino identified Dazzo as one person who was with him in Virginia to purchase the Bill Mather in February 1978. Alfred Jensen, the agent for the seller of the Bill Mather, corroborated Ardolino's testimony. James Muller and Kathleen Muller, employees at a family-owned boatyard in Brooklyn, testified about repair work on the Bill Mather in April 1978, identifying Dazzo as the person who used the alias "John Ward, Jr.," and directed the repair work.

Important to the sequence of events and to the judge's later ruling on the mistrial was the cross-examination of Ms. Muller on April 29. Dazzo's attorney inquired about a statement she had made to one Haggerty, an investigator employed by Dazzo who had shown her some pictures of people. Asked if she had recognized any of the people, she replied that one of the pictures looked like the person who had identified himself as John Ward. The following colloquy then occurred:

Q. But you did-Did you also tell Mr. Haggerty that you were not sure-

A. I had reasons, what I said to Mr. Haggerty, when he was in my office.

On redirect, the Government asked Ms. Muller to explain the circumstances of her conversation with Haggerty. After she explained that Haggerty had said he was an investigator for Dazzo's attorney, the Government asked her the following question:

Q. You recall on cross-examination you started to say you had reasons for telling Mr. Haggerty what you told him. What were those reasons?

To this, Mastrangelo's counsel, Mr. Coiro, objected, seeking a sidebar conference. The court excused the jury, questioned the witness, and then announced that it would issue the following curative instruction:

You can say-we can stipulate that she would have answered in words or substance that she did not feel under the circumstances that she wanted to be fully candid with Mr. Haggerty.

Although the Government and Dazzo's attorney agreed to the curative instruction, appellant's counsel, alleging that the questioning implied that the witness had been threatened, moved for a mistrial. Judge Weinstein denied this motion and, after giving the instruction to the jury, again inquired whether it was satisfactory. Counsel for the Government and Dazzo stated that it was, but Mr. Coiro, for Mastrangelo, had no comment.

By the afternoon of April 29, the third day of trial, the case against Dazzo had been substantially completed, and the Government was ready to begin its case against Mastrangelo. The Government originally had hoped to introduce a tape recording made on February 1, 1979, of a conversation between James Bennett and Richard Mastrangelo. Bennett had consented to the taping; this conversation was the subject of the severed sixth count of the indictment for obstruction of justice. The court had, however, in a pretrial ruling, excluded the tape as prejudicial to Dazzo under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny. James Bennett, who was not implicated in the conspiracy, had worked with his brother at Smitty's Auto & Truck Sales in Brooklyn and had evidently sold to Mastrangelo some of the trucks that were among the vehicles seized at the Yancarib Marina. In its opening the Government had stated that Mastrangelo had purchased three large moving trucks from Smitty's Auto & Truck Sales in February 1978, paying in cash, and that two of those trucks were seized at the Yancarib Marina, one loaded with marijuana. The Government stated that in September 1978 Mastrangelo paid cash for two more trucks, which were put in the name of Allrite Trucking, a corporation formed by "the organization," and that both of the later-purchased trucks were seized at the Yancarib Marina loaded with marijuana. In the excluded tape-recorded conversation, Mastrangelo, after learning of Bennett's subpoena The court having excluded this evidence because it was prejudicial to Dazzo-evidence that not only incriminated Mastrangelo directly but would be powerful evidence of his consciousness of guilt-it became essential for the Government to call James Bennett himself for proof of the truck transaction. According to the Government's uncontested representation to the trial court, Bennett flew into New York from Florida, where he was living semi-retired, the day before he was to testify. He was at the United States Attorney's office until 10:00 p. m. and was then driven to his daughter's home in Brooklyn. Again according to the Government's uncontested representation, Bennett, on his way to the courthouse on April 29, 1981, "left his daughter's home chased by two men, and (was) shot dead on the street."

by a grand jury, tells Bennett to say "(n) othing" in front of the grand jury and "if they ask, in other words, uh, if they say anything with me, you can't say me. Do you understand?" Bennett, apparently not getting the message, replies, "Well, I say, ah, I say I sold you the trucks, right?" And Mastrangelo says, "You can't.... You can't say that. Because you didn't sell me the trucks." When Bennett says, "Well, I actually sold you the trucks," Mastrangelo tells him, "You didn't. You know, Jim? You know what I mean you really didn't?" He adds, in what could well be interpreted as a threat, "You know what I mean Jim it's for your own good 'cause 'cause then ah, in other words they're going fuck everything around. I'll get back to you as far as anything...." Later in the conversation, Mastrangelo tells Bennett, "If they show you a picture of anybody, that's not him, that's not him. In other words, they can show you a picture of a million guys, that's not him. That's it. You know what I mean Jim? And that's all you got to say." When Bennett protests, "Well I have to say I sold the trucks"-the Government has seen his book showing the sale of the trucks-Mastrangelo replies, "Don't do that because you know why Jimmy? I could turn around and say no he didn't. There's nothing on paper." Mastrangelo continues, in possibly threatening language, "You know. So let's do it the right way.... This way. Cause they're busting your balls. You got your fucking book. There's my fucking book. What do you want?" Bennett says, "Yeah," and Mastrangelo says, "You know what I mean Jim?" Bennett says, "Uh huh," and...