UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

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

United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 conviction 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 marijuana sales journeyed back through the same conduit, mainly in bundles 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 services and that of his real estate company, Carman Associates, to laun-

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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 trafficking 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 conversations with Manglitz, in which Manglitz made several incriminating statements. The testimony of Ayersman, Kleberg and other

cooperating witnesses placed Manglitz at the heart of the money laundering 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 distribute 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 importation 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 distribute 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 disagreed and sentenced him to 108 months of imprisonment. Manglitz

now appeals.

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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 prosecutor 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 deliberately flouted the trial court's evidentiary rulings and elicited inadmissible testimony from witnesses during the trial. Finally, Manglitz

alleges that the prosecutor's closing argument discussed excluded evidence and impermissibly commented on his silence during trial. We

examine each of these arguments in light of the legal standard for prosecutorial misconduct.

A.

Manglitz first argues that the prosecution failed to provide him

written records concerning his partner, Carter. These records contained 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 prosecutor 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.

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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 information was disclosed to Manglitz before Carter testified. Manglitz

therefore had a full opportunity to prepare for and execute an effective cross examination based on that material. Indeed, the only prejudice 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 crossexamination, 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 requirement 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,

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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 convicted 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 disregarded. The witness should not have answered in view of

the fact an objection was pending.

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 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 violating 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 misleading the jury. See United States v. Loayza , 107 F.3d 257, 262 (4th

Cir. 1997). Here, the judge gave a very strong instruction admonishing 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 questioning. 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 produce 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 proceeds. 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 questioning. Manglitz argues that this question and answer violated the

judge's pretrial ruling against presenting evidence about Manglitz's

drug trafficking activities.

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We disagree. The jury only heard that Lee had an unidentified partner 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 prosecutor'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 prejudicial 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 investigators. 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.

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1 This allegation is otherwise unsubstantiated in the record.

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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 people, 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 crossexamining Kleberg about this meeting. The judge nevertheless

admonished the prosecutor just before Kleberg's redirect examination

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to make sure that Kleberg did not refer to "any violence or threat"

made by Manglitz. This admonition did not appear to bar the prosecutor from asking Kleberg on redirect about his cross-examination testimony 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 testimony about the meeting with federal agents by asking if he remembered testifying that he had been concerned about personal safety

during the meeting. When the judge stopped the prosecutor, the prosecutor 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 Kleberg'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 evaluating 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 asking 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 consider 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-

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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 during his closing argument, we find no prejudice.

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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 discussed how valuable it was to a prisoner to receive money from people 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

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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.

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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 offering 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 argument, 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 statement 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 Cooper'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 during the aborted transaction was invited by the defense. When the

defense does something to invite an allegedly improper comment by

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the prosecutor, that weighs against the prejudicial nature of the comment. 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 meeting. 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 testimony 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 burden 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 prosecutor 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 demonstrates deliberate misconduct by the prosecutor. Rather, the circumstances 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 government's exacting burden of proof. We do not see how adding the word

"else" could be taken to suggest that the burden was somehow lessened 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,

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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 prejudice 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, Importing, 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.

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4 Manglitz presses the further argument that the prosecutor behaved

improperly in the grand jury proceedings by misrepresenting the evidence. 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.

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Manglitz's conviction and sentence are

AFFIRMED.

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