17 F.

3d 14

UNITED STATES of America, Appellee,

v.
Eric MILLAN, a/k/a Eric Millan Colon, a/k/a Eric Colon,
a/k/a Luis Colon, a/k/a Ejay, a/k/a Moe; Ralph Rivera,
a/k/a TJ, a/k/a Rafael Rivera; Vincent Basciano, a/k/a
Vinnie; Alfred V. Bottone, Sr., a/k/a Valentino A. Bottone,
a/k/a Fat Al; Alfred Bottone, Jr., a/k/a Alfie; and Noel
Melendez, Defendants-Appellants,
Myles Coker; Anthony Bottone; Albert Biscaglio, a/k/a
Allie; John O'Rourke, a/k/a XYZ; Raimundo Hurdle, a/k/a
Carlos Hurdly, a/k/a Panama; William Mendoza, a/k/a Willie;
Porfipio Ortiz; Mildred Hernandez; Carmen Mendoza, a/k/a
Belilo; Samanta Torres; and Larry Weinstein, a/k/a Larry
Burns, Defendants.
Nos. 759, 760, 763, 747, and 748, Docket
93-1572L, -1573, -1574, -1575,
-1576 and -1577.

United States Court of Appeals,

Second Circuit.
Argued Oct. 5, 1993.
Decided Nov. 9, 1993.
Opinion Filed Feb. 17, 1994.

Gino Singer, New York, NY, for Defendant-Appellant Eric Millan.

Bettina Schein, New York, NY (Tom White, New York, NY, of counsel),
for Defendant-Appellant Ralph Rivera.
Benjamin Brafman, New York, NY (Katherine Renee Frohock, Law
Offices of Benjamin Brafman, New York, NY, of counsel), for DefendantAppellant Vincent Basciano.
Maurice H. Sercarz, New York, NY, for Defendant-Appellant Alfred V.
Bottone, Sr.

David Breitbart, New York, NY, for Defendant-Appellant Alfred Bottone,

Jr.
Mitchell Golub, New York, NY, for Defendant-Appellant Noel Melendez.
Dietrich L. Snell, New York, NY, Asst. United States Attorney for the
Southern District of New York (Mary Jo White, United States Attorney
for the Southern District of New York, Roland G. Riopelle and Alexandra
Rebay, Asst. United States Attorneys, of counsel), for Appellee United
States of America.
Before: MINER and ALTIMARI, Circuit Judges, and ELFVIN, District
Judge.*
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, J.), 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 On November 9, 1993, in an unpublished order, we affirmed the Order of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
2

This appeal arises out of the prosecution of appellants Eric Millan, Ralph
Rivera, Vincent Basciano, Alfred Bottone, Sr., Alfred Bottone, 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
narcotics-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.
4

In response to the Government's disclosure, Bottone, Jr., on March 15, 1993,

moved in 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.

7B. The April 15, 1993 Applications and April 16, 1993 Mistrial
8

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 crossexamine 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, Basciano'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.

10

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:

11

[Basciano]: I am, on behalf of my client, asking for the declaration of a mistrial

in the alternative if my application for dismissal of the indictment is going to be
denied.

12

[Rivera]: All defendants, your Honor.

13

[Bottone, Jr.]: I won't join in that application.

14

[Anthony Bottone]: Anthony Bottone joins in that application.

15

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.

16

In an April 16 order, the district court declared a mistrial, primarily due to the
fact that the "constant revelations" regarding police misconduct presented it and
the defendants with "an untenable situation." In response to this decision,
counsel for Bottone, Sr., who had not objected to the previous day's mistrial
application on behalf of "all defendants," asserted that "there were some
attorneys who moved for a mistrial and some who deliberately did not." He
apparently was referring to himself as one "who deliberately did not." The
district court then reminded counsel that "[j]ust one person demurred, and that
was [counsel for Bottone, Jr.]." After stating that its determination was final,
the district court dismissed the jury.

17

The district court on April 16th specifically found that there was "manifest
necessity" for a mistrial. The reasons cited by the district court included: (1)
that neither side could receive a fair trial because of the Government's
comments in its opening statement indicating that it would rely substantially on
the testimony of Agent Robles, which was now doubtful; (2) that, in light of the
constantly widening scope of the Robles investigation, implicating more and
more police officers, the already extensive amount of cross-examination of
Government witnesses would not suffice to remove the prejudice to the
defendants; (3) that, in light of the police misconduct in the case, the
Government might be unable to establish a chain of custody over all of its
evidence; and (4) that until the investigation of Agent Robles was further
developed, the defendants would not be in possession of all impeaching and
exculpating evidence. Finally, the court indicated that it had considered other
alternatives besides a mistrial, such as a continuance, or a severance for the
non-moving defendants, and found them to be impractical. In particular, a
severance as to the defendants who did not consent to the mistrial was
impractical in light of the number of defendants who had requested the mistrial.

18

In its decision of April 16th regarding the mistrial, the district court indicated
that the Government appeared to be dragging its feet in its effort to uncover the
full extent of the police misconduct. The district court cited the fact that the
Government steadfastly denied, even in the face of compelling evidence to the
contrary, that the police misconduct extended to the Blue Thunder
investigation. Further, the district court evaluated documents relating to the
misconduct investigation and found that the Government was making little
effort to ascertain specifically the extent and duration of the corruption, had not
adequately investigated the missing money, had not attempted to enter into a
cooperation agreement with Robles and generally was not diligently pursuing

the investigation. As a result of this perceived lackadaisical attitude, the district

court was "troubled" that defendants might not yet be in possession of all
impeaching and exculpating evidence. However, the district court concluded
that the Government's conduct was "unconscious avoidance" that was not
calculated to provoke a mistrial.
C. The District Court's Double Jeopardy Decision
19
20

Following the declaration of a mistrial, defendants Basciano, Bottone, Sr.,

Bottone, Jr., Melendez, Millan, Rivera, Anthony Bottone, Jose Colon, Myles
Coker, John O'Rourke, Samantha Torres and Larry Weinstein moved to
preclude retrial of the case on double jeopardy grounds. In a July 30, 1993
Memorandum Opinion and Order, the district court denied the motion, finding
(1) all defendants except Bottone, Jr. and Bottone, Sr. consented in the mistrial
and were bound by that consent unless it was provoked by government
misconduct which, the district court found, it was not; (2) that Bottone, Jr.
certainly had objected to the mistrial and since Bottone, Sr. had at least
objected after the fact, it would simply recognize that some defendants had
objected; and (3) that in any event, there was no double jeopardy since the
mistrial was granted due to manifest necessity. The district court then expanded
on its original determination of "manifest necessity" for granting the mistrial.
Summarizing its findings, the district court held:

21 Court finds that the Government's improper opening statement intimating that
[T]he
Robles would be testifying at trial; inability of defense counsel to address the
ongoing revelations of police misconduct through cross-examination; need for the
Court to revisit prior rulings, recall witnesses and reopen hearings premised upon
stale information; inability of the Government to provide the defendants with all
impeachment material and aggressively pursue the corruption investigation while
the Blue Thunder case remained pending; likelihood that the jury would not reach a
proper verdict in light of these factors; and lack of viable alternatives to salvage the
case, together, constituted manifest necessity for a mistrial.
22

The appellants appeal from this order.

II. DISCUSSION
23

Millan, Rivera and Basciano contend that they did not consent to a mistrial
"without prejudice," and the Bottones argue that they did not consent to the
declaration of a mistrial at all. Absent a finding that the Government "goaded"
the defense into moving for a mistrial, "principles of double jeopardy do not
bar a second prosecution following a mistrial declared at the request of the

defendant." United States v. GAF Corp., 884 F.2d 670, 673 (2d Cir.1989); see
also Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d
416 (1982). If the defendant does not consent or objects, a mistrial is
nevertheless proper if there is "manifest necessity." United States v. Perez, 22
U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824); see also Illinois v. Somerville,
410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425 (1973). Because we
conclude that the Government did not provoke a mistrial and the district court
properly determined that there was manifest necessity for declaring a mistrial,
the issue of the appellants' consent to the mistrial is of no moment, and we do
not pause to address it.
A. Government Misconduct
24

Millan, Rivera and Basciano argue that, notwithstanding their request for a
mistrial, this request was the result of Government misconduct intended to
provoke a mistrial.3 This challenge is without merit.

25

When the Government engages in misconduct intended to provoke a mistrial,

the Double Jeopardy clause protects the defendant from reprosecution.
Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088. The Supreme Court has made
clear that mere "bad faith conduct" or "harassment" on the part of the
Government is insufficient to preclude reprosecution; rather, the district court
must determine if the prosecution actually intended to provoke a mistrial. Id. at
679, 102 S.Ct. at 2091; see also United States v. Pavloyianis, 996 F.2d 1467,
1474 (2d Cir.1993) (requiring "deliberate" prosecutorial misconduct).
"Negligence, even if gross, is insufficient." United States v. Huang, 960 F.2d
1128, 1133 (2d Cir.1992). This standard "calls for the court to make a finding
of fact." Kennedy, 456 U.S. at 675, 102 S.Ct. at 2089. Accordingly, the district
court's finding that the Government did not intend to provoke a mistrial will not
be reversed unless clearly erroneous. See Pavloyianis, 996 F.2d at 1475.

26

With these considerations in mind, it is apparent that the district court's finding
that the Government had not engaged in intentional misconduct was not clearly
erroneous. There is no indication that the Government actually was withholding
any information concerning Robles' role in the Blue Thunder case once the
police misconduct investigation came to light. The district court noted that the
Government's actions in this case, at most, amounted to "unconscious
avoidance" of any knowledge of police misconduct that could "infect" the Blue
Thunder case. Our review of the record reveals nothing that substantively
contradicts this conclusion. Even if the Government was less than diligent in its
investigation of the alleged police misconduct, this negligence does not rise to
the level of intentional conduct necessary to invoke the protections of the

Double Jeopardy Clause. Accord Pavloyianis, 996 F.2d at 1474; Huang, 960
F.2d at 1133.
27

Furthermore, in both the April 16 and July 30 orders, the district court
thoroughly reviewed the question of the Government's intent and concluded
that "there is simply no evidence that the Government ... engaged in ...
[deliberate conduct] to avoid an imminent acquittal." Cf. Pavloyianis, 996 F.2d
at 1475 (double jeopardy not a bar to retrial where there was nothing in the
record to indicate that the Government "engaged in misconduct with the
intention of avoiding what [it] viewed as a likely acquittal"). At all times the
Government maintained the position that it was prepared to go forward with the
prosecution. In a memorandum of law, dated July 18, 1993 and submitted to the
district court, the Government pointed out that the evidence against the
defendants was "overwhelming" and certain to ensure their conviction, and,
although the disclosure to the jury of Robles' alleged misconduct may have
weakened the Government's case, it was of the belief that there was still ample
evidence to guarantee a conviction. Therefore, we agree with the district court
and conclude that the Government's actions were in no way motivated out of
fear of the defendants' imminent acquittal.

28

In light of the substantial support in the record, we conclude that the district
court did not clearly err in finding that the Government did not engage in
misconduct intended to provoke a mistrial, and, accordingly, the arguments of
Millan, Rivera and Basciano fail.

B. Manifest Necessity
29

The Bottones argue that the district court erred in finding that there was
manifest necessity to declare a mistrial over their objections.4 We disagree.

30

It has long been settled that the constitutional prohibition against double
jeopardy does not bar a second trial when the trial court has declared a mistrial
based on "manifest necessity." See Perez, 22 U.S. at 580; Somerville, 410 U.S.
at 461, 93 S.Ct. at 1069. Each case is judged on its own "particular facts," and
a "trial judge properly exercises his discretion to declare a mistrial if an
impartial verdict cannot be reached, or if a verdict of conviction could be
reached but would have to be reversed on appeal due to an obvious procedural
error in the trial." Somerville, 410 U.S. at 464, 93 S.Ct. at 1070. As the
Supreme Court has noted, "a defendant's valued right to have his trial
completed by a particular tribunal must in some instances be subordinated to
the public's interest in fair trials designed to end in just judgments." Wade v.
Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).

31

Since a trial judge is best situated to decide intelligently whether "the ends of
substantial justice cannot be attained without discontinuing the trial," it is well
recognized that "a mistrial may be declared without the defendant's consent and
even over his objection, and he may be retried consistently with the Fifth
Amendment." Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 1526, 6
L.Ed.2d 901 (1961); see also United States v. Arrington, 867 F.2d 122, 125 (2d
Cir.), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989). In
reviewing a decision to declare a mistrial over objection, we have noted that,
"when unforeseen events intrude into the trial, the trial judge's decision whether
manifest necessity exists to declare a mistrial should be afforded the 'highest
degree of respect.' " Corey v. District Court of Vermont, 917 F.2d 88, 90 (2d
Cir.1990) (quoting Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824,
833, 54 L.Ed.2d 717 (1978)). Accordingly, we will not disturb the district
court's determination that there was manifest necessity absent an abuse of
discretion,5 United States v. Klein, 582 F.2d 186, 190 (2d Cir.1978), cert.
denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). When evaluated
against the foregoing framework it is clear that the district court, which patently
was concerned that the impact of the Robles investigation would fatally
obfuscate the actual issues in the Blue Thunder case, did not abuse its discretion
by concluding that a mistrial was a manifest necessity.

32

First, prior to the declaration of a mistrial, the jury already had heard testimony
regarding "dirty drug-dealing cops." Although this evidence largely was
irrelevant to the facts of the Blue Thunder case, its potential to side-track the
trial and impede the jury from focusing on the defendants' guilt or innocence is
apparent. In fact, the record reveals that prior to the mistrial declaration, various
Government witnesses were questioned regarding whether they thought Robles
was a "corrupt officer" or whether he was "selling drugs." Accordingly, the
district court's conclusion that the jury would hopelessly be distracted into
considering the culpability of Robles and the other officers clearly was
justified.

33

Second, prior to the declaration of a mistrial, several of the defense attorneys

themselves expressed concern about jury confusion and the potential prejudice
that could result therefrom. During the April 15, 1993 robing room conference,
Basciano's counsel stated:

34 government misconduct is what this jury is going to be trying rather than the
[T]he
allegations alleged against these defendants.
....
35
[T]his trial is now hopelessly mired in a side issue. Let the government figure out
36

36
who was bad, what they did, prosecute those people.... [B]ut until that happens, to
put this Court and these defendants and us in the position of every day playing
catchup ball with new mind boggling information I just don't think is fair.
....
37
I38think, Judge, it's early enough in the proceeding for the Court to at least cut the
damage here.... To put this jury through another seven months of this exercise where
for three months we're going to be trying police corruption and for three months
we're going to be trying narcotics allegations, it's not right.
39

During this conference, counsel for Bottone, Jr. also pointed out that "[t]he case
has been tainted.... The process of gaining the evidence is tainted, and the case
is tainted for that reason.... I renew the application to dismiss the case.... There
are no controls that can be put into effect here that would be appropriate."
Defense counsels' concern over whether the trial could continue on track to a
valid verdict lends strong support for the district court's determination
regarding the necessity for a mistrial.

40

Third, with regard to the defense's ability to obtain potentially exculpatory

evidence arising from the investigation of Robles and other police officers, it
quickly became apparent to the district court that no amount of crossexamination of Government witnesses would be "sufficient to cure the
prejudice to the defendants." This determination was based upon the
Government's weekly revelations of "new allegations of misconduct involving
an ever widening circle of police officers," which placed the defendants in the
untenable position of being forced to restrategize and reassess their case almost
daily. Specifically, the district court expressed its concern that, due to the
continued unfolding of events with regard to the police misconduct
investigation, the defense would receive impeachment or exculpatory evidence
on a piecemeal basis. Given this concern, the district court opined that the
defendants would suffer "incurable prejudice as [they] are forced to adjust to
the shifting allegations against the agents." We cannot disagree with this
conclusion.

41

Fourth, the district court feared that the jury would be unfairly swayed by the
publicity arising directly from the Government's disclosures. No fewer than
nine articles discussing the Blue Thunder investigation or the police
misconduct case appeared in various New York City newspapers prior to the
April 16, 1993 mistrial declaration. In fact, by March 29, 1993, two jurors had
already become aware of an investigation into police misconduct and asked
whether it would affect the Blue Thunder case. Moreover, on April 15, 1993--

the day before the declaration of a mistrial--counsel for Bottone, Jr. informed
the district court that he would take the case to the "jury of public opinion."
Given the media's interest in any potential connection between the Blue
Thunder case and the Robles' investigation, fear as to the non-sequestered jury's
ability to remain impartial and decide the case solely on the evidence at trial
was justified. Cf. United States v. Bauman, 887 F.2d 546, 552 (5th Cir.1989)
(concern for jury exposure to "prejudicial media influence" was valid
consideration when declaring a mistrial), cert. denied, 493 U.S. 1077, 110 S.Ct.
1128, 107 L.Ed.2d 1034 (1990).
42

Finally, the district court declared a mistrial only after carefully evaluating the
feasibility of alternative, curative measures and concluding that these measures
would not remedy the ills that had infected the trial. The district court
determined that expanded cross-examination and additional discovery were
insufficient remedies due to the day-to-day uncovering of new, potentially
exculpatory materials. It further concluded that a continuance pending the
completion of the Robles' investigation would subject the jurors and all the
parties to months of unfair and uncertain delay. Indeed, the lengthy delay was
stressed by Basciano's counsel, and we agree that it was an unacceptable
option. Additionally, the district court's consideration of judicial economy in its
decision to grant a mistrial was appropriate. While this factor is not afforded
tremendous weight, it does implicate the public's interest in the trial. See
Somerville, 410 U.S. at 469, 93 S.Ct. at 1072 (indicating that avoidance of
delay and waste of money is a policy reason for allowing courts to declare
mistrials). Given that most of the defendants had joined in the application for a
mistrial, it was wholly appropriate for the district court to declare a mistrial
over the objection of only two defendants. The trial was scheduled to be several
months long and was terminated after little more than a month. Thus, it would
have been a tremendous waste of resources to prosecute the Bottones separately
and then spend another several months reprosecuting the other defendants.

43

Therefore, in light of the overwhelming support in the record for the district
court's decision to declare a mistrial due to manifest necessity, we are
constrained to conclude that the district court did not abuse its discretion in
making that decision.

CONCLUSION
44

For all of the foregoing reasons, the July 30, 1993 Order of the district court
denying appellants' motion to dismiss the indictment is AFFIRMED.

Honorable John T. Elfvin, Senior United States District Judge for the Western
District of New York, sitting by designation

Appellant Melendez pleaded guilty on September 13, 1993 and withdrew his
appeal

See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The request for a Franks hearing presumably related to allegations that Agent
Robles had supplied affidavits supporting crucial wiretaps in the case

At this point it should be noted that a panel of this Court has already partly
reviewed this claim in a related appeal. In United States v. Millan, 4 F.3d 1038
(2d Cir.1993), defendants Millan and Rivera, appellants in this case, had been
released on bail by the district court, pending retrial. In reviewing the question
of whether continued detention of Millan and Rivera would exceed due
process, this Court reviewed the Government's responsibility for the delay in
this case and concluded: "The primary reason for the delay since March 1993
has ... been the government's failure to advise the court prior to the initial trial
concerning the misconduct of certain of the agents who participated in the
Millan investigation. There is no suggestion that this failure was intentional...."
Id. at 1045 (emphasis added)

For the purposes of this discussion, we will assume without deciding that
Bottone, Sr. objected to the declaration of a mistrial in a timely manner

In light of the Government's opposition to the mistrial in this case and our
conclusion that there was no intentional misconduct on the part of the
Government, the "strictest scrutiny" standard of review urged by the Bottones
is inappropriate. See Arizona v. Washington, 434 U.S. 497, 508, 98 S.Ct. 824,
831, 54 L.Ed.2d 717 (1978) ("strictest scrutiny is appropriate when the basis
for the mistrial is the unavailability of critical prosecution evidence, or when
there is reason to believe that the prosecutor is using the superior resources of
the State to harass or to achieve a tactical advantage over the accused")