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August 28, 1996


The opinion of the court was delivered by: BRODY

 Brody, J.

 August 28, 1996

 The defendant, Adrian Mastrangelo, Jr., was charged with two counts of a twelve count indictment alleging a plan to manufacture and distribute methamphetamine. *fn1" After a jury trial, in which he was convicted of one of the two counts (conspiracy to manufacture methamphetamine) and acquitted of the other (attempt to manufacture methamphetamine), the defendant filed a post-trial motion for acquittal pursuant to Federal Rule of Criminal Procedure 29(c) or, in the alternative, for a new trial pursuant to Rule 33.


 The motion for acquittal comprises two parts. In the first part, the defendant argues that insufficient evidence was presented at trial to sustain his conviction. In the second, he argues that the indictment should have been dismissed because outrageous behavior on the part of the government deprived him of his due process rights. These arguments will be considered in turn.

 1. Sufficiency of the Evidence

 The United States Court of Appeals for the Third Circuit has set out the standard it applies in considering a post-conviction challenge based on the sufficiency of the evidence as follows:

An appellate court must sustain the verdict of a jury if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision. In determining whether evidence is sufficient, we will not weigh evidence or determine the credibility of witnesses. . . . Reversal on the grounds of insufficient evidence should be confined to cases where the failure of the prosecution is clear. The evidence need not be inconsistent with every conclusion save that of guilt, so long as it establishes a case from which a jury could find the defendant guilty beyond a reasonable doubt. A defendant challenging the sufficiency of the evidence bears a heavy burden.

 U.S. v. Carr, 25 F.3d 1194, 1201 (3d Cir.), cert. denied, 115 S. Ct. 341 (1994) (quoting U. S. v. Casper, 956 F.2d 416, 421 (3d Cir. 1992). The court further states that "the government can rely entirely on circumstantial evidence to prove that an alleged conspirator had the knowledge and intent necessary to commit the crime." Id. While the elements of a conspiracy may be proved entirely by circumstantial evidence, each element must be proved beyond a reasonable doubt, and although the defendant's participation in the conspiracy may be slight, it too must be proved beyond a reasonable doubt. U.S. v. McGlory, 968 F.2d 309, 321 (3d Cir. 1992) cert. denied, 113 S. Ct. 415 (1993); U.S. v. Wexler, 838 F.2d 88, 90 (3d Cir. 1988).

 The defendant does not challenge the government's proof of the existence of the conspiracy in which he was charged with participating; his claim is that there is no competent evidence linking him to it. The defendant cites several Third Circuit cases in which the court of appeals reversed the defendant's conviction for conspiracy because he had not been proved to have the same "unity of purpose", the same intent and agreement to work together to achieve a common goal, as other members of the conspiracy. See, e.g.. Wexler, 838 F.2d at 90; U.S. v. Samuels, 741 F.2d 570 (3d Cir. 1984); U.S. v. Cooper, 567 F.2d 252 (3d Cir. 1977). The defendant contends there is the same lack of proof in his case.

 At trial, the government presented evidence by audio tapes, testimony, and exhibits that Michael DeJulius, Raymond D'Aulerio, Adrian Mastrangelo, III (the defendant's son), and unidentified others conspired to manufacture and distribute methamphetamine from on or about July 30, 1993 to on or about October 4, 1993. Detectives from the Philadelphia Police Department had joined with Special Agents of United States Drug Enforcement Administration ("DEA") to discover the source of the methamphetamine that co-conspirators DeJulius and D'Aulerio had distributed earlier in the year.

 Paul Rosa, a cooperating witness, ordered three pounds of methamphetamine from DeJulius and D'Aulerio in June of 1993, but he was told that DeJulius could not provide it because the suppliers lacked a crucial ingredient, methylamine. The government then decided to try a "reverse sting" operation, providing DeJulius with methylamine through Paul Rosa and tracing its route back to DeJulius's supplier and, ultimately, to the manufacturer.

 The government assembled a massive surveillance force to track the path of the methylamine on foot, by vehicle, and by helicopter. At about noon on August 5, 1993, at 8th and Washington Streets in Philadelphia, Rosa gave DeJulius a white box, with "J.T. Baker" on the side, containing four bottles of methylamine. *fn2" At about 4:35 p.m., DeJulius delivered the box to a second person, who delivered it to Adrian Mastrangelo, III, who took the box to a garage ("Garage G"), located in the 800 block of Latona Street. Adrian Mastrangelo, III returned some hours later, at 8:45 p.m., retrieved what appeared to be the box, then partially covered by a plastic bag, and took it to his house at 2034 Wolf Street. All these locations were within a short distance of each other. The government kept a 24 hour surveillance on Garage G and the Wolf St. residence; however, street conditions made it difficult for the agents to observe everything that went in and out of the locations.

 On August 7, 1993, the defendant, Adrian Mastrangelo, Jr., arrived at the Wolf Street house of his son, Adrian, III, driving a Jeep. Five minutes later, father and son left the house. This time the son drove the Jeep and the defendant drove a white van. They went to 1413 S. 12th St., where items were moved in and out of the white van. The two men then switched vehicles and drove to Garage G. There, a detective in a surveillance van across from the garage saw the son get out of the white van, look at the surveillance van, look at the Jeep, and make a movement with his shoulders. Then, someone tried to open the door of the surveillance van, which was locked. The detective testified that the son was the person closest to the van. Again, things were moved into, and possibly out of, the white van.

 Father and son then left the area and drove north on I-95 in both vehicles, the son driving the van. They took turns in the lead, drove at or below the speed limit, and at one exit, both vehicles got off the highway and immediately re-entered it. There was testimony that both the exit and re-entry and the use of two vehicles that alternated taking the lead when only one vehicle was needed might have been counter-surveillance measures, to see if anyone was following. After leaving the highway, father and son drove to a storage facility in Bristol, Pennsylvania, called Four-Storage. The defendant parked his Jeep at a nearby apartment complex and the two men took the van into Four-Storage, opening the gate by using a code that the government later determined was assigned to storage locker H-16. They stayed inside about five minutes, came out, and drove both vehicles back to the son's Wolf Street residence. *fn3"

 On August 25, 1993, government agents undertook a covert search of locker H-16. There, they found the J.T. Baker box containing one of the marked methylamine bottles given to Paul Rosa for distribution. It was empty except for a slight residue of methylamine. In addition, the locker contained ingredients and equipment necessary for the manufacture of DL-methamphetamine: aluminum foil, muriatic acid, lye, grain alcohol bottles (empty), thermometers, funnels, laboratory flasks, condensers. It also contained jars that had a residue of methamphetamine. The agents photographed the items and left them in the locker as they had found them, returning on September 17 to seize everything in the locker except for some domestic items: a humidifier, a baby stroller, and a few rolls of Christmas paper. The fingerprint of Adrian Mastrangelo, III was found on the methylamine bottle in the J.T. Baker box, and that of the defendant was found on a separatory funnel.

 Government witnesses testified that locker H-16 contained everything needed for a clandestine methamphetamine laboratory except P2P, the most expensive ingredient, and the methylamine, which had apparently been used. One witness, Jack Fasanello, a senior forensic chemist with the DEA testified about the methods and equipment used in the clandestine manufacture of methamphetamine. Another, Will Kane, a Philadelphia Police Officer assigned to the DEA Task Force in Philadelphia, stated that manufacturers of methamphetamine liked to keep ingredients separated, especially the P2P, which was the most important and most expensive ingredient. He gave his opinion that the person who controlled storage locker H-16 was either the financier or the "cook" for the methamphetamine manufacturing operation. Finally, the parties stipulated that the defendant had the chemical background to know the ingredients and equipment necessary to make methamphetamine.

 On October 4, 1993, search warrants were executed at a number of locations, including Garage G and the residences of Michael DeJulius, Raymond D'Aulerio, and Adrian Mastrangelo, III. Garage G was found to contain documents in the names of both father and son and a 1983 catalogue for chemical supplies and equipment. Three days later, on October 7, the defendant returned to Four-Storage and was recorded by a video camera the government had installed on September 9, 1993, at a location across from locker H-16. The jury saw the videotape, which showed the defendant driving up to locker H-16 and getting out of his vehicle. After looking around him, he unlocked the two padlocks on the door and opened the storage locker. He looked into the locker, which was empty except for the domestic items, immediately removed the padlocks and left. Neither he nor anyone else reported to the storage facility that items had been removed from the locker, nor did anyone return for the domestic items. Four-Storage called the contact numbers to let the renter know the locker was unsecured and to see if he meant to vacate it, but the first number had been disconnected and at the second number, the person who returned the call said he knew nothing about a storage locker and had no idea why his number was on the lease.

 The same day he found the storage locker empty, the defendant transferred the title of his Jeep to his girlfriend, Phyllis Vizzachero. Five days later, on October 12, 1993, he re-registered a truck he had bought ten months earlier to Frances Nuciforo of Blackwood, New Jersey, although in April of 1995, he was using the truck. The day after the defendant re-registered his truck, the telephone at 1457 Neshaminy Valley Drive, where the defendant had been living, was disconnected. A year later, on December 14, 1994, the defendant and four others, including his son, were indicted. The other four were arrested within a week, but the defendant eluded authorities. In April of 1995, Phyllis Vizzachero arranged for the defendant to meet with an attorney, who discussed the indictment with him and recommended his surrender. The defendant did not surrender, and his whereabouts remained unknown to authorities until May 20, 1995, when a United States Marshal followed Ms. Vizzachero to her sister's residence, found the defendant there, and arrested him.

 The jury found the defendant guilty of Count 2, conspiracy to manufacture methamphetamine. To do so, it had to find the prosecution had proved, beyond a reasonable doubt, (1) that the conspiracy was willfully formed and was existing on or about the time alleged (which the defense concedes) and (2) that the defendant willfully was a member of the conspiracy. U.S. v. Price, 13 F.3d 711, 724 (3d Cir. 1994). The jury found the defendant not guilty of Count 12, attempt to manufacture methamphetamine. My task is to determine whether the evidence was sufficient to support the jury's finding that, beyond a reasonable doubt, the defendant was a member of the conspiracy to manufacture methamphetamine. The defendant argues that his participation was not proved beyond a reasonable doubt. He contends that he was never mentioned in the tapes or conversations about the conspiracy, that there is no real evidence implicating him, and that the government is relying on "guilt by association" with his son. Bearing in mind the Third Circuit's standard that the jury's verdict must be allowed to stand if there is "substantial evidence, viewed in the light most favorable to the government, to uphold the jury's decision," that the evidence need not be inconsistent with every conclusion save that of guilt, and that the evidence may be entirely circumstantial, I will review the government's evidence in support of the verdict.

 As the defendant has noted, knowledge of a conspiracy will not make someone a member of it, even if he associates with its members. U.S. v. Coleman, 811 F.2d 804, 808 (3d Cir. 1987); Wexler, 838 F.2d at 91. Nor will his facilitating the conspiracy make him a member of it, if he did not know its specific goals. Cooper, 567 F.2d at 254-55. In order to be a member of a conspiracy, a defendant must both know its goals and take steps to facilitate the conspiracy during its lifetime. U.S. v. Soto, 716 F.2d 989, 991 (3d Cir. 1983). In this case, the government provided circumstantial evidence that the defendant knew the goals of the conspiracy and that he facilitated its goals in one or more ways.

 The jury was presented with substantial evidence from which it could infer that the defendant knew that materials for the manufacture of methamphetamine in this conspiracy were stored in locker H-16. The locker had everything needed for a clandestine manufacture of methamphetamine except P2P and methylamine. It contained one of the government's methylamine bottles, empty except for a slight residue, in the J.H. Baker box. The defendant stipulated he was familiar with the ingredients and equipment necessary for making methamphetamine. From that, the jury could find that, if he had seen the items in the locker, he would have known what they were for. The defendant went into the storage facility with his son on August 7, possibly to locker H-16. He went again to locker H-16 just three days after search warrants were executed on the homes of co-conspirators, and he immediately and dramatically abandoned the locker when inspection revealed that the materials to make methamphetamine (but not the domestic items) had been removed.

 There was also substantial evidence from which the jury could have found that the defendant facilitated the goals of the conspiracy by allowing materials which he knew were for the manufacture of methamphetamine to be stored in a locker over which he had control during the life of the conspiracy. There was evidence for his control of the locker. The rental agent described the man who had rented the locker as having the same general characteristics as the defendant. A handwriting expert testified that the defendant probably had signed and initialed the lease. One of the contact telephone numbers on the lease was one the defendant had used in the past. That telephone number was listed at an address on Hoffman Street in Philadelphia where the defendant had once lived. At the time of the conspiracy, two automobiles were registered to Adrian Mastrangelo at the Hoffman Street address. They were seen parked on Neshaminy Valley Drive, across the street from the apartment in which the defendant was living, and he was seen driving one of them. The address given for the elusive renter, Raymond Burgos, was in the same apartment complex. The locker appeared to have been rented so as to hide the identity of the renter. Finally, there was the videotaped evidence that the defendant had keys to the storage locker and evidently knew the access code to the facility. This evidence, taken as a whole and viewed in the light most favorable to the government, is sufficient to support a finding beyond a reasonable doubt that the defendant controlled the locker in which materials for the conspiracy were stored and that he attempted to hide the fact that he had rented it.

 In addition, there was evidence that the defendant facilitated the conspiracy in another way: by assisting his son in transporting the government methylamine to the storage locker on August 7, 1993. The son appeared to be suspicious of the surveillance van in front of Garage G, and father and son took what appeared to be counter-surveillance activity on the way to the storage locker. While this evidence may not have been sufficient to support the defendant's participation in the conspiracy by itself, it is another piece that goes to make up the total, and I must determine "whether all the pieces of evidence against the defendant, taken together, make a strong enough case to let the jury find him guilty beyond a reasonable doubt." Coleman, 811 F.2d at 807 (quoting U.S. v. Allard, 240 F.2d 840, 841 (3d Cir.), cert. denied, 353 U.S. 939 (1957).

 Finally, there was substantial evidence of the defendant's preparation for flight after the residences of co-conspirators were searched and he found the storage locker had been emptied, and of his subsequent disappearance. *fn4" The defendant started to transfer his assets the same day he discovered the materials had been removed from the storage locker; his telephone was cut off shortly after the discovery; and by the time the indictment issued, the defendant had dropped out of sight. He thereafter discussed surrender with an attorney, but did not surrender, and had to be tracked down. This flight, and the preparation for it, may be taken as evidence of the defendant's guilt.

 I conclude the evidence that the defendant knew of the conspiracy and its goals and knowingly facilitated those goals in one or more ways during its lifetime is sufficient to support the jury's finding that, beyond a reasonable doubt, the defendant was willfully a member of the conspiracy, that he shared in the "unity of purpose" of his co-conspirators. The evidence supports the finding that the defendant knowingly allowed a storage locker over which he had control to be used to store materials for the conspiracy; the evidence that he knowingly helped his son transport the government's methylamine to storage locker H-16 strengthens that finding. *fn5" After reviewing all the evidence in the light most favorable to the government, in answer to the question "whether all the pieces of evidence against the defendant, taken together, make a strong enough case to sustain the jury's finding of guilt beyond a reasonable doubt," I conclude that they do. U.S. v. Coleman, 811 F.2d 804, 807 (3d Cir. 1087).

 2. Outrageous Conduct of the Government.

 The second ground the defendant offers for acquittal is that the indictment should have been dismissed because of the government's outrageous behavior. This argument was presented in a pre-trial motion. A decision was postponed until all evidence was presented at trial, but the motion was not decided. I now rule that the government's behavior was not of such a nature as to require dismissal of the indictment. The outrageous conduct on which the defendant bases this part of ...

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