it took no steps to resolve the predicament before the jury was empaneled. Neither the Court nor defense counsel was given the slightest indication that a question had arisen regarding misconduct by agents involved in the Millan investigation. At a minimum, the Government should have brought the allegations against Robles, Beck and Termini to the Court's attention so that the matter could have been resolved before opening arguments, thus, avoiding the necessity for a mistrial.
As this procedure was not followed, the Court, in an attempt to cure the taint caused by the Government's opening, permitted defense counsel to extensively cross-examine Government witnesses regarding the alleged wrongdoing by Robles, Beck and Termini. See Order at 24. In light of the most recent allegations, however, the Court finds that no amount of cross-examination is now sufficient to cure the prejudice to the defendants. Each week the Government reveals new allegations of misconduct involving an ever widening circle of police officers over an ever longer period of time. The ongoing, unpredictable nature of the Robles investigation, places defendants in the untenable position of having to restrategize, and recall and reexamine witnesses on a daily basis.
Similarly, the Court will have to revisit its prior opinions and rulings, which are premised on possibly stale information, as new evidence of police corruption comes to light. Thus, the Court foresees a potential for incurable prejudice as the defendants are forced to adjust to the shifting allegations against the agents involved in the Millan investigation.
Of equal concern is the Government's ability to establish a clear chain of custody over the evidence. From the information now disclosed, it is apparent that the Government is unable to account for an unknown quantity of money seized by Agents Beck and Brosnan during the arrest of defendant Carlos Rivera. In substance, a bag containing approximately $ 12,000, which was placed in the locked office of Sergeant Johnston at his direction, has disappeared. Snell Aff. at PP 8, 11. Sergeant Johnston has no recollection as to the money's existence or whereabouts. Id. at P 9. This chain of events is especially problematic given that Sergeant Johnston was responsible for coordinating the simultaneous execution of approximately fifty search warrants and approximately forty arrest warrants by several hundred law enforcement officers on August 1, 1991. Id. at P 9. In addition, the evidence suggests that an amount totalling roughly $ 50,000 - $ 80,000 was originally seized from Rivera. Tr. at 1864; Snell Aff. at PP 6, 10. Neither quantity is documented in any report or currently in the Government's possession. This disappearance is currently the subject of an internal investigation by the DEA, and the New York City and State Police Departments. Snell Aff. at P 11. At this point, without further investigation, the Court simply cannot determine whether the entire vouchering process in this case is now suspect.
Furthermore, the Court has grown increasingly troubled by the possibility that future inquiries will reveal additional instances of misconduct affecting this case. Although the Court does not believe that the Government's actions in this matter were calculated to provoke a mistrial, the Government may, on the other hand, be unconsciously avoiding knowledge of any police misconduct infecting the Millan case. For instance, although the Court recognizes that certain evidence demonstrates wrongdoing during the period of the Millan investigation, see Order at 22-23, the Government continues to maintain that "the record is clear that all of the allegations against Robles, Beck, or Termini relate to events that occurred well after the conclusion of the Millan wiretaps." Letter from Dietrich L. Snell to the Honorable Shirley Wohl Kram, dated 3/17/93, at 2; see also Letter from Dietrich L. Snell to the Honorable Shirley Wohl Kram, dated 3/24/93, at 1 ("Simply put, there is no credible evidence that any misconduct by the NYDETF officers occurred while the Millan investigation was under way."); Tr. at 1862 ("nothing that has been uncovered to date strikes the integrity of this prosecution at all."). In fact, it is the defendants and their counsel, rather than the Government, who have brought to the Court's attention specific instances of misconduct, which allegedly occurred during the Millan investigation.
Moreover, there are other examples of unconscious avoidance on the part of the Government. For instance, a review of the notes taken at various debriefing meetings with Robles, Beck and Termini reveals little attempt by the Government to specifically ascertain the extent and duration of the agents' corruption. Even now, the Government has not, by their own admission, debriefed Beck regarding the missing $ 80,000. Snell Aff. at P 11. In addition, despite the Government's representation to the Court approximately two weeks ago, the Government's case against Robles has not been diligently pursued. Specifically, no cooperation agreement has been signed between the Government and Robles. As a result, defendants are precluded from either calling Robles as a witness or effectively cross-examining him at trial. Based on these factors, the Court is troubled that defendants and their counsel are not yet in possession of all the evidence which might tend to impeach government witnesses or otherwise exculpate the defendants.
Finally, it must be noted that the Court has explored alternatives to granting a mistrial and finds them impractical. For example, a continuance until the completion of the Robles investigation would only expose the empaneled jurors to months of uncertain delay well beyond their appointed term. See United States v. Peng, 602 F. Supp. at 305 (holding that a mistrial may be found where an extended period will elapse before resumption of trial). Similarly, a severance must be rejected in light of the fear of incurable prejudice in the current proceedings, concerns for judicial economy, and the express consent of all but one of the defendants to a mistrial. See United States v. Bauman, 887 F.2d 546, 552 (5th Cir. 1989). At this point, it is also naive to assume that additional cross-examination, a Franks hearing,
further opening arguments or similar measures designed to cure the prejudice would effectively address the concerns raised by defendants. Thus, keeping in the forefront every defendant's "valued right to have his trial completed by a particular tribunal," see Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 69 S. Ct. 834 (1949), the Court cannot ignore that this right "must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Id.; see also Arizona v. Washington, 434 U.S. at 505. Accordingly, the Court finds that a mistrial must be declared because of manifest necessity.
For the reasons cited above, the defendants' motion for a mistrial is granted.