United States v. Richard Mastrangelo

662 F.2d 946, 1981 U.S. App. LEXIS 16526

• Court: Court of Appeals for the Second Circuit
• Decided: October 28, 1981
• Docket: 257, Docket 81-1270
• Status: Published

Opinions

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 eodefendant, 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 We hold first that appellant had for all practical purposes withdrawn his previous motion for a mistrial on other grounds, so that United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976), does not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 codefend-ant 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 Yan-carib Enterprises in Queens, New York, aboard the vessel Terry's Dream, of the same amounts of marijuana and Methaqua-lone, 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 code-fendant 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 Yan-carib 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 Manna, one loaded with marijuana. The Government stated that in September 1978 Mas-trangelo 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, Mastran-gelo, after learning of Bennett’s subpoena by a grand jury, tells Bennett to say “[njothing” 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 — Mas-trangelo 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 Mastrangelo says, “And that’s it, case closed.”

The court having excluded this evidence because it was prejudicial to Dazzo — evidence that not only incriminated Mastran-gelo 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 semiretired, 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.”

Upon so informing the court, the Government first renewed its application to use the tape but the court said, “All I can do is sever Mr. Dazzo and Mr. Mastrangelo and start all over again.” The court, aware of the double jeopardy problem, asked counsel for Mastrangelo “whether you make a motion for a mistrial, and renew your motion for a severance?” Counsel asked for time to consider that. A second application by the Government was that Mastrangelo’s bail be increased to $500,000. The court said that as to Dazzo it saw no reason why “we could not go ahead,” but revoked Mas-trangelo’s bail and then called in the marshals to arrest Mastrangelo and take him into custody. The court made arrangements to sequester the jury and ordered jurors not to communicate with anyone. Additionally, the court asked the Government to arrange to have protective custody for the Mullers, who testified earlier that day.

At this point the court informed Mastran-gelo’s counsel that “[y]ou have already moved for a mistrial and I am considering the granting of that motion. That has not been withdrawn.... I denied the motion [earlier], but I am reconsidering it and I am reserving decision.” Judge Weinstein again noted his unwillingness to rejoin the obstruction count or play the tape, for fear of tainting the jury in connection with the “clean case against Dazzo.” Further discussion indicated that the case against Daz-zo would be closed with a few formalities. The court gave Mastrangelo’s counsel more time to make known his position, and after consultation counsel stated on the record that “the defendant Mastrangelo’s position is that we are not moving for a mistrial .... At the present time . .. there is no motion on behalf of the defendant Mas-trangelo before the Court at this time.” The court, however, then granted the defendant Mastrangelo’s previous motion for a mistrial and severance (based on Ms. Muller’s testimony), but added that “[i]f that motion had not been made by the defendant, I would have granted it on my own motion in view of these circumstances. If I had not granted it on my own motion, I would have granted it on the government’s motion.” Mastrangelo’s counsel stated for the record that “at this time I am not renewing that motion [for a mistrial].” The judge ordered that the portion of the transcript containing a reference to the Mullers’ address be sealed, and the trial against Dazzo proceeded, culminating in his conviction.

DISCUSSION

The Government argues that Mastrangelo did not withdraw his motion for a mistrial before it was granted and that accordingly under United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976), any claim of double jeopardy is unavailable. We agree with appellant, however, that for all practical purposes, though not in so many words, the motion for a mistrial based upon Ms. Muller’s testimony was withdrawn. Before the court granted the motion, defense counsel stated on the record, “After consultation, Judge, the defendant Mastrangelo’s position is that we are not moving for a mistrial . . . At the present time, in light of the unfortunate situation that has happened, there is no motion on behalf of the defendant Mastrangelo before the Court at this time.” This case is similar to United States v. Evers, 569 F.2d 876, 878 (5th Cir. 1978), in which defense counsel had moved for a mistrial but then “advised the court that because defendant was anxious not to retry the case, and because he did not think the evidence sufficient for the case to go to the jury, he would withdraw his motion for a mistrial.” This in effect was what defense counsel did here, and therefore the question must turn on “manifest necessity.”

In this connection the arguments below on Mastrangelo’s double-jeopardy motion shed further light on the trial court’s decision, though we realize that under Arizona v. Washington, 434 U.S. 497, 516-17, 98 S.Ct. 824, 836, 54 L.Ed.2d 717 (1978), the record speaks for itself in connection with manifest necessity and the trial court’s mistrial ruling is entitled to great deference irrespective of any statement of reasons by the trial court. See United States v. Grasso, 600 F.2d 342, 343 (2d Cir. 1979) (recognizing that the court’s previous holding in United States v. Grasso, 552 F.2d 46 (2d Cir. 1977), that findings by the trial court were necessary had been “plainly overruled by the Supreme Court” in Arizona v. Washington).

The arguments below on the motion now appealed from demonstrate that the district court’s underlying reason for declaring a mistrial was that the judge quite understandably believed that Mastrangelo was responsible for Bennett’s death. That the court, immediately after being informed of Bennett’s death, (a) sequestered the jury, (b) revoked Mastrangelo’s bail, (c) ordered protective custody for the Mullers, and (d) sealed the portion of the transcript containing the Mullers’ address, confirms this, though it was not made explicit at that time. As the court below stated at argument,

I was under the distinct impression, and I believe that by a preponderance of the evidence, based on what I then had before me, I was warranted in finding that this defendant, Mastrangelo, either directly arranged for the killing of the witness or was advised of the possible killing of the witness and acquiesced. He was the only person that could gain from it.

Dazzo couldn’t gain from it at all. He was, by that time, destroyed by the government’s case. . . .

There was evidence before the Court that this very defendant, Mastrangelo, had threatened other witnesses, in fact, he had been indicted and I severed that count.

The tape was clear that he had threatened another witness. Mastrangelo was out on bail. The Court observed him during this emergency. Everybody in this courtroom was shocked. Mr. Coiro was very upset. The defendant, Mas-trangelo, took it like a soldier. He didn’t smile, as I recall, but he certainly wasn’t upset by it. At best, he was neutral on the issue.

It just is inconceivable . . . that this radical step to aid Mastrangelo, who is the only person that could have been helped by killing this witness, would have been taken without his knowledge, acquiescence, or orders. And that, it seems to me, is the clearest situation of a finding of manifest necessity that you can get.

Appellant agrees, as he must, that if he had in fact killed or arranged for the killing of the witness Bennett, the court could make a finding of manifest necessity for the declaration of a mistrial.² He argues, however, that because there was no hearing on this question, no evidence presented other than the Government’s representation about what had occurred, and the possibility that Bennett might have been killed by others for other reasons, the court could not assume that appellant was responsible. The purport of this argument is that without an actual showing of the defendant’s complicity in the death of the witness, the court could not make a finding of manifest necessity.

We disagree. It would ordinarily be impossible to make an investigation, have a hearing, and permit the introduction of evidence and cross-examination, with some resultant finding based upon whatever standard of proof might be appropriate, see, e. g., Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (upholding the use of the preponderance-of-evidence standard as the burden of proof in a suppression hearing re the voluntariness of a confession), meanwhile suspending the trial in question. It is simply impracticable in the situation of the killing of a key witness to reach any well-founded determination about the true course of events in an hour, a day, a week, or even a month.

The test, therefore, is not whether the defendant was in fact involved in the witness’s death, nor even whether under a preponderance of the evidence or some lesser evidentiary standard the court finds it probable that the defendant has participated in the murder. To make such a determination would require a delay in the trial of weeks or even months that would itself ultimately require a mistrial: the jurors’ minds would no longer be fresh and, even worse, the reasons for the delay might have become evident to one or more of them. Rather, the test must be simply whether at the time the trial judge is faced with the question he reasonably concludes that there is a distinct possibility that the defendant participated in making the witness unavailable, at least where, as here, the Government is totally without fault and the case cannot proceed and the ends of justice be served by the evidence already introduced or otherwise available to the Government. Although the defendant has an important interest in concluding his or her confrontation with society, United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971), the courts are also charged with protecting “society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832. See Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949) (the court should weigh the defendant’s “valued right to have his trial completed by a particular tribunal” against the public’s interest in “fair trials designed to end in just judgments”). We must not only give due deference to the trial judge’s determination, see Arizona v. Washington; United States v. Grasso, 600 F.2d at 347, but that determination in favor of the declaration of a mistrial in a case like this — “along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny” — “is entitled to special respect.” Arizona v. Washington, 434 U.S. at 510, 98 S.Ct. at 833.

We note also that the court here carefully explored and rejected alternatives to a mistrial. The most likely alternative was for the court to reverse its prior decision on the admissibility of the tape-recorded conversation and, using a curative instruction, to attempt to avoid unfairly prejudicing the codefendant, Dazzo. It is always difficult, and sometimes impossible, for a court of appeals, reviewing a cold record of printed words, to measure the likely prejudicial effect of a given piece of evidence in a given trial. The district court’s evaluation of events occurring before the jury is, as we said in Grasso, 600 F.2d at 343, “to be accorded the highest deference.” See also Arizona v. Washington, 434 U.S. at 513-14, 98 S.Ct. at 834. As Judge Weinstein observed at the hearing on the double-jeopardy motion below, the court of appeals did not feel “the atmosphere of this courtroom when the jury was dismissed and that the witnesses were obviously under great tension. [It] didn’t see the hesitation of these witnesses as they testified.” Nor could we observe the effect upon the jury of Ms. Muller’s testimony, in response to questioning by Dazzo’s attorney, that she “had reasons, what I said to Mr. Haggerty, when he was in my office.” We do know that when the Government on redirect asked what those reasons were, Mastrangelo’s counsel not only objected but requested a mistrial; the court was very careful to exclude those statements and seek to have the parties stipulate what her answer would have been, namely, that “she did not feel under the circumstances that she wanted to be fully candid with Mr. Haggerty.”

Had we been presented with this situation, we might, instead of declaring a mistrial, have reversed our decision not to admit into evidence the taped conversation bearing Mastrangelo’s incriminating statements, which after all did not mention Daz-zo. But the tape did contain what could be interpreted as a direct threat and, perhaps, a veiled threat against a witness who would not testify. Moreover, with the Government’s case against Dazzo essentially completed — a case the judge thought was a “clean” one — we think the judge could properly take into account the public’s interest in ensuring that there was neither a mistrial as to Dazzo nor grounds for a retrial at which witnesses who had testified might not be available or willing to testify against him. Acting in an emergency with the Government free from fault, with a distinct possibility that the defendant Mas-trangelo was responsible for the killing of the one witness against him, and duly concerned by the threat of prejudice to the codefendant Dazzo (and, indirectly, to the Government’s case against Dazzo) from the admission of the tape with a resultant possible mistrial or new trial as to him, we think the trial judge acted well within the wide discretion afforded him by the double jeopardy cases. We accordingly defer to his judgment about the events occurring before the jury and to his observation of the witnesses, the parties, and the jury itself. To hold otherwise would invade the province of the trial judge for the sake of abstract formality.

Judgment affirmed.

1 . Judge Weinstein has ordered the obstruction-of-justice count rejoined for the retrial of appellant. Counts 2 and 3 of the indictment name neither Dazzo nor Mastrangelo and are thus not at issue here.

2 . The defendant’s responsibility for reviving the Bruton problem would clearly distinguish the case from United States v. Glover, 506 F.2d 291 (2d Cir. 1974). In Glover the prosecution waited until the fifth day of a joint trial to notify the court that it intended to introduce statements by Glover that presented a Bruton problem with respect to the other defendants. The trial court granted the Government’s motion for a mistrial and severance as to Glover and we held that he could not be retried. Insofar as the mistrial was granted for the benefit of the codefendants and the Government, and “Glover had done nothing to bring about the contretemps that resulted in the declaration of a mistrial,” 506 F.2d at 297-98, there was not a manifest necessity for ordering the mistrial. If the defendant creates the need for the mistrial and severance, as by killing a witness and necessitating the use of substitute evidence that is inadmissible in a joint trial, Glover does not bar his retrial.

Apart from appellant’s possible involvement in the murder, this case differs from Glover in that the prosecution in Glover failed to seek a pretrial ruling on the Bruton evidence, whereas here the prosecution sought such a ruling and was willing to forego the use of the tape in the joint trial because it assumed Bennett would testify. We need express no opinion on whether the prosecution’s freedom from fault, absent reason to suspect the defendant was responsible for the witness’s unavailability, would alone suffice to make Glover inapplicable and sustain a finding of manifest necessity for a mistrial and severance. Dunkerley v. Hogan, 579 F.2d 141 (2d Cir. 1978), we find distinguishable because there a continuance was a viable alternative. Here the only “viable alternative” suggested was a reversal of the trial court’s ruling excluding the Bennett-Mastrangelo tape-recorded conversation, coupled with a redaction of the threats in that conversation. We do not believe that to be as “feasible and practical [a] solution to the problem,” id. at 147, as was the alternative of a continuance in Dunkerley. See text, infra.