United States v. Millan

17 F.3d 14, 1993 U.S. App. LEXIS 36253
Court of Appeals for the Second Circuit·Decided November 9, 1993·No. Nos. 759, 760, 763, 747, and 748, Docket 93-1572L, -1573, -1574, -1575, -1576 and -1577·Published·Cited by 14 cases

Opinion

MINER, Circuit Judge:

Defendants-appellants Eric Millan, Ralph Rivera, Vincent Basciano, Alfred Bottone, Sr., Alfred Bottone, Jr. and Noel Melendez, appeal from an Order entered on July 30, 1993 in the United States District Court for the Southern District of New York (Kram, /.), denying their motion to bar a retrial on various narcotic charges on the ground that a retrial would violate the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, 829 F.Supp. 620. On November 9, 1993, in an unpublished order, we affirmed the Order of the district court so that the retrial of the defendants could proceed as scheduled. We now set forth our reasons for that decision

I. BACKGROUND

A. General

This appeal arises out of the prosecution of appellants Eric Millan, Ralph Rivera, Vincent Basciano, Alfred Bottone, Sr., Alfred Bot-tone, Jr., Noel Melendez1 and several other defendants for their alleged role in a large-scale heroin organization responsible for distributing heroin in New York City under the brand name “Blue Thunder,” by which the organization was known. Jury selection in the case began on March 1, 1993, and the parties delivered their opening statements on March 9, 1993. A series of unexpected events that form the basis for the declaration of a mistrial in this case occurred shortly after the trial began.

On March 12, the Government informed the district court that New York State Police Investigator Robert Robles, New York City Police Detective Jeffrey Beck and New York City Police Sergeant Joseph Termini, each of whom was a member of the New York Drug Enforcement Task Force (the “Task Force”) and had participated in the Blue Thunder investigation, had been arrested on narcoties-related charges. The Government disclosed that the arrests of Agent Robles, Detective Beck and Sergeant Termini were based on a sealed complaint, dated March 2, 1993, that charged the officers with conspiring to distribute heroin between December of 1992 and March of 1993. Agent Robles, in particular, had been identified in the Government’s opening statement as a reliable witness, who would testify at trial about his undercover drug purchases from one of the defendants.

In response to the Government’s disclosure, Bottone, Jr., on March 15, 1993, moved [16]*16in open court for dismissal of the indictment and, alternatively, for discovery of the investigative files relating to the investigation of Agent Robles and the other officers. At the direction of the district court, the Government, on March 17, 1993, submitted two ex parte affirmations under seal describing the participation of the arrested Task Force agents in the Blue Thunder investigation and the allegations of misconduct generated by the investigation of those agents. These affirmations indicated that the alleged misconduct by the agents occurred after the arrests of the defendants in this case. The district court ordered further disclosure on this issue and held a hearing on March 23 to determine the extent and duration of any police misconduct during the Blue Thunder investigation. At this hearing, the defense introduced evidence that Investigator Robles may have been engaged in misconduct during the course of that investigation.

On March 29, the district court issued an order addressing the defendants’ request for dismissal of the indictment and other relief. The district court determined that there was no evidence that the alleged police misconduct had any relation to the Blue Thunder investigation and, accordingly, denied defense motions for (1) dismissal of the indictment; (2) suppression of certain wiretap evidence; (3) additional opening statements; and (4) appointment of a Special Prosecutor.

At a robing room conference on April 1, counsel for Bottone, Jr. indicated to the district court that he had discovered evidence of additional police misconduct related to the Blue Thunder case. Counsel alleged that $29,000 in cash purportedly seized from his client’s business and $60,000 in cash purportedly seized from a car driven by Blue Thunder member Carlos Rivera was missing. After investigating these claims, the Government conceded that an undetermined amount of money that was seized from Rivera’s car by Detective Beck and New York State Police Investigator Michael Brosnan never was vouchered as evidence and had disappeared.

B. The April 15, 1998 Applications and April 16, 1998 Mistrial

On April 15, the district court heard further arguments regarding the disappearance of the money seized from Carlos Rivera. At this conference, counsel for Bottone, Jr. argued that the indictment should be dismissed due to prosecutorial misconduct and because the defense had no opportunity to cross-examine the Government witnesses in connection with the newly discovered allegations regarding the missing money. In the alternative, he argued that hearings on the issue of police misconduct should be reopened.

Counsel for Basciano requested “on behalf of my client and I assume on behalf of everyone,” that the indictment be dismissed, the defendants be allowed to deliver new opening statements, the police misconduct hearing be reopened and a Franks hearing held.2 After asserting that the indictment should be dismissed with prejudice, counsel stated “whether your Honor rules that the indictment be dismissed with or without prejudice is a completely separate issues [sic].” Paraphrasing the district court’s own observation regarding the untenable situation created by the various allegations of corruption, Basci-ano’s counsel remarked that, “[w]e’re all walking on quicksand here,” and argued that “[t]he difficulty we have is one thing leads to another. You have an evolving series of problems that are going to confront you with every witness.” He further stated that he might later request the district court to stop the proceedings for a sufficient time to investigate the new evidence given by the Government.

Later that day, at a robing room conference, counsel for Basciano indicated to the district court that he was also requesting a mistrial, should the request for dismissal of the indictment be denied. At that time, the following colloquy occurred between the district court and counsel for the indicated defendants regarding the motion for a mistrial:

[Basciano]: I am, on behalf of my client, asking for the declaration of a mistrial in the alternative if my application for dis[17]*17missal of the indictment is going to be denied.
[Rivera]: All defendants, your Honor.
[Bottone, Jr.]: I won’t join in that application.
[Anthony Bottone]: Anthony Bottone joins in that application.

At this time, no other attorneys indicated an objection to the representation of Rivera’s counsel that the motion for mistrial was on behalf of all defendants.

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United States v. Millan, 17 F.3d 14, 1993 U.S. App. LEXIS 36253 (2d Cir. 1993).

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