Shining the Light on BOP: Guantanamo on US Soil

At this point in time, anyone that can read is aware of how prisoners in Guantanamo Bay camps are mistreated, abused and tortured. Few have a clue that similar abuse is also occurring in U.S. prisons, specifically in the the federal Bureau of Prisons (BOP) system. This is not an equal opportunity system and all are not treated equally across the board in all BOP facilities as is projected to the general public.

This is not a discussion about inmates not receiving their mail or being served Monsanto poison for dinner, though both problems are prevalent as well.

What is much more shocking is how the BOP has virtually no oversight or accountability. The prison wardens are being used as pawns by the US Attorney's Office. They use an institution -- whose purpose is supposedly to securely detain, rehabilitate and to implement a predetermined punishment for a specific crime handed down by the court as permitted by the legislature -- as an alter ego. It's crazy.


What is going on at FTC Oklahoma City?

Paul Bergrin has lost 15-20 pounds since we last talked about his weight. They ignore the national menu for food and they give the inmates children portions that would not even fill the stomach of anyone over 7 years of age. There is no commissary and they give inmates one packet of coffee in the morning and one milk for the day. At least 3 packets of this so called coffee are needed to even taste the coffee in it.

So I ask my investigative readers out there: What is being done with the food budget at this institution? Who or what specific group within the facility is scamming the federal government and pocketing the major $funds intended for food for the inmates? In short, who are the thieves???

They lock the showers from 8 in the morning until 5 at night, so there are long lines and they are disgustingly filthy. They shake down inmate cells at least once a week and take any extra clothing. Paul Bergrin has gone almost 3 months with no haircut!

If inmates complain about any of this stated abuse, they retaliate against them and keep them in what is supposed to be a transfer facility under the deceptive guise that they are investigating. They refuse to send out inmate legal mail and only come around once a week on Wednesday morning to collect all mail. They do not answer any inquiries inmates make and they refuse to even provide the forms to complain to the region, which is easy to do as the inmate never sees a counselor.

Everything noted thus far is in violation of BOP rules and some of the mistreatment falls in the category of civil rights violations. While it seems that all inmates in this hellhole are suffering, Paul Bergrin has been selected for special mistreatment. They consistently pass over Paul when transports are going to his exact location (USP Tucson), so we know they are doing this intentionally and to make him suffer. It is like a concentration camp there and I am aware of many more violations and much more abuse - what is stated herein is merely the tip of the iceberg!

Paul Bergrin has been in this particular facility for over two and a half months and he is the longest detainee in transit in the unit. They are definitely doing it to torture him. The same as moving him 3000 miles and even further from his loved ones to make sure he will never see his kids or grandchildren. Of course this was done to Paul before the holidays. Clearly the Newark US Attorney's Office wanted to make sure he would not have any visitors and now with the planned move to Tucson instead of Florida, visits will be rare. They have intentionally separated Paul from his loved ones permanently, or at least as long as he is in BOP custody. That is NOT the stated goal of the BOP!

What they have done to his Paul's new cellmate is worse than situations you read about in third-world countries. His name is Ivin Wosencraft. He is from Amarillo, Texas and has less than one year remaining on his sentence. He was sent home from the hospital Friday night because they refused to admit him, with the Lt. at the institution telling the doctor that he should not admit him unless he will die, since he is leaving Monday. Well, his leg swelled even more and he is in extraordinary pain and agony and is an insulin dependent diabetic. He just finished cancer treatments also. The man is terminally ill. He developed a blood clot and the BOP just brought him into Paul's cell, despite his critical condition. The lieutenant wouldn't let the poor guy go to the ER even though the guy is dying.

NOTE to BOP Region Director: FIRE the INHUMAN lieutenant NOW!

I fear Paul Bergrin will suffer retaliation for my blog posts; however, they cannot be allowed to murder him while we all remain silent and sit in fear. So here I am. If there is any form of retaliation against Paul Bergrin for my words, I can only assure the perpetrators that I know how to get louder by the day and draw international attention to the many forms of mistreatment he is suffering in the BOP Federal Transfer Center in Oklahoma City.

When you click on the link for this FTC in Oklahoma City, at the bottom of the page it references a Commissary List available and Inmate Legal Activities. This is all lies - there is no commissary and the officers DO NOT send out legal mail.


ATTENTION to BOP Regional Director: Correct the lies on this institution's website page and fix the problems. How would I fix these serious problems? FIRE all employees in the facility, charge the worst abusers with civil rights violations and then replace them with human beings! This is the way this place operates - take note and FIX IT ASAP! And don't forget that there's much more than stated herein...


UPDATE EDIT on January 1, 2014 to add:

I have never heard of a BOP facility being this terrible. Is it possible that this FTC in Oklahoma City is used as a Guantanamo camp type facility by the government to make inmates appreciate regular facilities when they arrive? After all, inmates are only supposed to be in this hellhole briefly and I believe the average stay is 1-3 weeks, with 5 weeks being the longest stay I have ever heard of. Child's portion meals, officers' refusal to send out legal mail, no commissary availability, no haircuts etc... wouldn't be a major problem for a week or 2.

This is where the Newark US Attorney's Office (USAO) enters the picture. BOP originally designated Paul Bergrin to USP Coleman 1 in Florida, which I knew would not fly for the USAO. You see, William Baskerville is in USP Coleman 1, and the last thing on earth that the USAO wants is William and Paul Bergrin working on their cases together. William Baskerville filed a 2255 back in late September (2013) and is fighting for an evidentiary hearing right now.

Some discovery and testimony in Paul Bergrin's 2013 trial contradicts statements made by the same witnesses (Brokos, Anthony Young and more) in William Baskerville's 2007 trial. The USAO has a similar problem with the Hakeem Curry / Rakeem Baskerville discovery and witness testimony contradicting later testimony in Paul Bergrin's trial. It is a lot of material to read, but there are serious inconsistencies between specific testimony in the 3 trials.

Beyond all of that, the issue of the missing food at FTC Oklahoma City is a serious one. I am serious about my questions as I know for fact that these institutions have a generous food budget that covers feeding every adult inmate that arrives. So who has done what with the food and/or the money allocated for the food??? Someone is making out like a bandit while the inmates are being starved!


UPDATE on 18 January 2014 @1:25PM:

Paul Bergrin arrived in Tucson USP this morning. He's finally out of that terrible transfer facility in Oklahoma City!

On a different note, comments intended to harass and denigrate Paul Bergrin or me, the blog publisher, will not be published on this blog. Take your weird issues elsewhere.

Paul Bergrin Suffering Abuse

It looks like I will be reviving this blog in short time. Paul Bergrin was awaiting a transfer to Coleman 1 USP in Florida until he was recently informed that there was a change in plan and he'd be going to USP Tucson. He is currently suffering in the Federal Transfer Center in Oklahoma City.

Paul Bergrin has been at the Federal Transfer Center in Oklahoma City for 10 weeks now! He is being abused by the Newark US Attorney’s Office and this abuse has continued care of BOP. He is now the longest detainee in transit in the unit. I will be reviving the blog in short time to expose the treatment he has suffered at the hands of many. Shame on all involved – from AUSA Gay to the FTC director to the low-level employees that are participating in this abuse!

What the sort of crap place is this country? What sort of excuses for human beings run this rotten, corrupt system? Well, this blog has been read by people around the world and it will soon be time to use it to bring attention to the reality of this so-called "land of the free"!

And of course Paul has been obstructed in all legal work on his case. For that matter, they won't even send out his legal mail at FTC Oklahoma City. Perhaps I will publish the 2013 trial transcripts again too. We shall see what transpires over the next few days.


Looks like we're back!

The Sentences

Yesterday was the day from hell and really we are only 3 1/2 hours into the next day, so it lives on. I tried to go to sleep, but couldn't and got up to watch a movie... Rendition. Wrong movie to watch at this point in time (yesterday or today) as Paul Bergrin was obviously whisked away to some secret US lock-up, though I suppose it's a plus that the secret location is inside the US. I suppose, but as I don't believe everything I see on tv, I really don't know. The US may indeed be the worst of the worst.

A few people have asked me if I intended to blog about the sentencing today. Of course I don't have anything nice to say and had previously decided to let this blog conclude with the "Eyewitness to Murder" post. I thought it was a good finale. But then one of Paul Bergrin's major supporters wanted the last post, stating the sentencing location and time, to be shared, so that altered the ending of the blog. I figure I may as well keep going, nice or not. This article by Barry Sussman is a must read on the sentencing:

Abu Ghraib Whistleblower Receives Multiple Life Sentences

What a fiasco charade this entire case has been. And it ends for the moment with Paul Bergrin being sentenced to 6 life terms plus around 100+ more years on the various counts. The government asked for 5 life terms and Judge Cavanaugh decided to show them some real love and gave them more, more, and more. I'd like to think we all know what side he was on from jumpstreet.

Did you know that Andrea True (Andrea Marie Truden) was an informant? Yup. I know a lady... well, let me introduce you to her. She's real nice and I think you'll enjoy her blog. She goes by the title of The Duchess of Hackney. So go read the truth about Andrea True:

My semi obligatory not quite obituary: Andrea True Connection RIP

The jury in the Bergrin trial should really appreciate Andrea True and her More, More, More, as after all is said and done, they convicted Paul Bergrin on all counts because there was just so much. There was more, more, and more lies that sounded good coming from the government asshats and they couldn't take the time to actually listen, discuss in-depth, and distinguish fact from fiction. Because we all know that volume and quantity is much more important than quality when it comes to trials, right?

And the judge turned out to be the biggest fan of the government of all. Have you ever heard of a judge handing out lengthier sentences than the vitriolic government asshats with their obviously false evidence and lying witnesses asked for? Well, I have heard of this sort of thing before, but it's rare; real rare. And let's face it - these particular AUSAs are the most spiteful and malicious of any in the country. They had an agenda and truth and facts were not going to get in the way!

This has been a real kangaroo court experience. I thought I had seen everything, but nothing has ever come close to this malicious vendetta with its various aspects and many participants.

Oh and for wayneook over on nj.com: I know you're connected to this case and prosecution. I think I know who you are, but as I ain't sure, I'll just offer initials: M.M. 

Dude, I saw your comments before they made all the comments disappear and we never "jousted". Just in case it skipped your mind, in an early point long ago, you falsely claimed repeatedly that Paul Bergrin was a convicted felon and threatened me with a "promoting prostitution" prosecution over my Blueprint books. I responded that you could give it your best shot. I subsequently, over a lengthy period of time, received email after email after email with some of the most absurd legally compromising questions that I have ever heard.

And wayneook, my dear miscreant, I wouldn't call that "jousting" by a longshot; I do call it criminal harassment. Go fuck yourself and take your many government sock puppets and tools with ya.

And now I have concluded this blog. 

Eyewitness to Murder

Let me begin this post by introducing you to Paul Bergrin. We will talk more about him over the weekend and who he really is. Paul Bergrin is NOT GUILTY and he needs your assistance. Please read on...

There is only one living eyewitness to the murder of Kemo Deshawn McCray. That witness tried to tell a list of agents and police officers, including Special Agent Shawn Brokos, what the shooter of his stepson looked like. That witness testified in Paul Bergrin's first and second trial and offered a clear description of the man that murdered Kemo.

The problem was that the witness's description of the shooter did not fit the government agenda. There had to be a cover-up. Why? Let's face it: Kemo was an informant and those responsible for his safety failed miserably. Rather than allowing the public anger to be focused on the parties deserving it and paying out a major settlement to the family of Kemo, they had to pretend it never was.

And then there was the trial of William Baskerville. Anthony Young testified in that trial as well and as a result of his false testimony and claim to be the shooter, Baskerville was convicted. Let's not pretend that William Baskerville was the only person in Newark that Kemo set-up for SA Brokos. The truth is much the opposite. Kemo set-up 17 other people as well - I have a list of all the names. Chalk-up one more vindictive prosecution and conviction by a jury fooled with misinformation and outright lies.

Anthony Young was sentenced to 30 years for shooting Kemo Deshawn McCray, but what the government neglected to mention to the jury in the Bergrin trial, is that Young will receive a substantial assistance letter for his testimony. Anthony Young expects to walk out of prison a free man with a new life in WITSEC before this year is over. Anthony Young owed people on the streets of Newark a serious amount of money, so he needed the protection. Young crossed the wrong people and did have reason to fear for his life, but in exchange for protection he had to tell a story. The government needed a flexible witness, willing to say whatever had to be said to get those convictions.

The one living eyewitness to Kemo's murder is Johnny Davis, his stepfather. A list of other witness accounts reveal that Young is a liar. Numerous recorded calls prove that Young is a liar. I thought we were all clear on that, but the jury failed. They ignored the eyewitness testimony of Johnny Davis and then they followed-up by ignoring the important testimony of Ben Hahn, Rashidah Tarver, and Anthony Young's original statement to SA Brokos when SA Brokos was called by the defense in this trial.

Let's have a look at the testimony offered by Johnny Davis, the only living eyewitness to the murder of Kemo Deshawn McCray, to the jury in this last trial. Mr. Davis testified on January 30, 2013, and his testimony is in Volume 7 of the trial transcripts:

Direct examination of Johnny Davis

From pages 1430-31:

Q. Okay. Did you tell the police department any reason

why you picked that photograph out, the one --

A. Because the kid was tall, muscular, and black,

dark-skinned, and had shoulder-length dreads, and he was the

closest thing I can come to identifying as the shooter.

Cross examination of Johnny Davis

From page 1466:

Q. You didn't hear any -- you know what you heard, you

know what you felt, obviously.

A. I grew up here.

Q. Yes, sir.

And when you turned around, when you made a

decision to turn around, there's no doubt in your mind you

saw a man with shoulder-length dreadlocks; correct, sir?

A. Yes, I did.

Q. A dark-skinned male; correct?

A. Yes, I did.

Q. Heavyset; correct?

A. Yes, I did.

From pages 1469-70:

Q. And you never saw anybody with a New York Yankee hat,

obviously; correct?

A. Obviously, no.

Q. And the man that you saw, you were able to see his

hair clearly, so he didn't have a New York Yankee hat

either; correct?

A. No.

Q. Okay. Thank you.

Now, there came a time that day when you said you

spoke to the detectives; correct?

A. Yes.

Q. And you wanted the person caught, obviously, that shot

your son and killed him in front of you; right?

A. Yes, I did.

Q. And you told them that the man -- they asked you for a

brief description so they could put out a bulletin to catch

the person; correct?

A. They could ask for a description.

Q. And you told them that it was a black male,

shoulder-length dreadlocks, and he went that way; correct?

I mean, that's essentially what you said because they --

A. That's all I could give them.

Q. And you gave it to them very fast; right?

A. No, I did not. They took me to the precinct and they

sat me and grilled me long enough so I can give it to them.

Q. Well, before you went down to the precinct, they

talked to you while you were at the scene?

A. No, they didn't talk to me at all. They sat me in

there, they treated me like I was one of -- they treated me

like I was one of their criminals.

Q. One thing that you did, you were honest with them in

this one statement; correct?

A. I was very honest with them.

From page 1474 - Defense investigators visit to Mr. Davis in 2011:

Q. So at the time that you gave the statement, Mr. Davis,

sir, you were trying to be as open and as honest as humanly

possible; correct?

A. If someone come to you and tell you that someone is in

jail for 30 years for killing your child, and you look at

their papers and you find that that might not be the killer,

because, you must understand, I said, black hair, dark skin.

Q. And dreadlocks, correct?

A. And dreadlocks. I said nothing about light skin. I

didn't say nothing about brown skin. I might be -- might

not have it all swift up there with the books and the

whatever, but I do got my brains and I do understand what

I'm looking at.

Q. Yes, sir.

So you were being as honest as humanly possible;

right, sir?

A. Yes, I was.

From page 1477 - Mr. Davis is shown a photograph of Anthony Young

Q. And Anthony Young was not the man on March 2nd of

2004.

A. I don't know Mr. Young. I can't determine what he --

who or what he was. So I don't know.

Q. But this is not the man who shot your son?

A. No, he's light-skinned.

Anthony Young is light-skinned and bald, but to make the story fit, Young claimed to be wearing a New York Yankees hat on the day he shot Kemo, presumably to explain away why the only eyewitness to the murder saw dreadlocks. SA Brokos needed the story to fit. Was the jury out to lunch when Mr. Davis testified, or what?

The government has no concern for truth whatsoever. Their only concern is flushing Bergrin down the proverbial toilet and watching him suffer for years while he fights this vindictive prosecution. The statement in a recent (August 16, 2013) motion says that Paul Bergrin is just too late with the impeachment evidence of the numerous call recordings:

"Initially, Bergrin’s reference to 33,000 Title III intercepts is misleading. While that is the entire universe of calls intercepted during the Hakeem Curry investigation, only a small fraction pertain to Bergrin. Significantly, moreover, Bergrin was represented by counsel when the Government produced in discovery all of the intercepted calls on July 1, 2009. As a matter of agency law, notice to Bergrin’s then-counsel (as agent) was notice to Bergrin (as principal). See In re Kensington Int’l. Ltd., 368 F.3d 289, 315 (3d Cir. 2004) (quoting Restatement (Second) of Agency § 9(3) (1958) (“A person has notice of a fact if his agent has knowledge of the fact”)). Thus, as a matter of law, Bergrin has had constructive knowledge of the contents of the suppressible calls since July 1, 2009."

"In fact, Bergrin’s counsel knew the contents of the December 4, 2003 calls a mere four months after having received the intercepted calls in discovery. In urging the Government not to seek the death penalty, Bergrin’s counsel argued, “Remarkably, the electronic surveillance never picked up any hint of the meeting described by Mr. Young or that McCray had been targeted at that time for death.” Letter from David A. Ruhnke, Esq., Nov. 30, 2009, at 11 n.10."

In fact, I have searched the file for months in each direction and there is no such, "Letter from David A. Ruhnke, Esq., Nov. 30, 2009, at 11 n.10" in it. This is more spin and lies from the government in this case. Paul Bergrin is not aware of any such letter if there was one.

The Court refused to offer defense witnesses immunity and as they were all too aware that the government was waiting to lurch, to hang-on to any word or sentence that they could possibly use against them, they chose not to testify. Do you blame them? I don't - I could personally attest to the fact that the government is scary is this case. They have painted the picture and they dare anyone to dispute it.

I have been informed that U.S. District Judge Dennis Cavanaugh will not allow Paul Bergrin to respond to the government's last motion dated August 16, 2013 and has already ruled in favor of the government in reference to Bergrin's Motion for Reconsideration filed on August 8, 2013. I was told that the ruling sounds like the government wrote it, but sorry - I won't be purchasing crap like that clearly biased opinion in PACER any longer. If you want to read the ruling, you'll have to pay for it yourself.

Consider this my demand for independent judicial review of both the Paul Bergrin and the William Baskerville cases and trials and for a DOJ investigation into a pattern of misconduct in the Newark U.S. Attorney's Office.

NOTE: SENTENCING WAS RESET FOR MONDAY 23 SEPTEMBER 2013 @10AM TO ALLOW PAUL BERGRIN TIME TO RESPOND TO THE GOVERNMENT'S SENTENCING MEMORANDUM. THE GOVERNMENT IS SEEKING 5 LIFE TERMS FOR THIS INNOCENT MAN:

Bergrin Status Conf 26 August 2013


Images: Paul Bergrin in his U.S. Army uniform © 2013 Beth Bergrin. I am not aware of the date the images were taken, however, this is the first time either has ever been published anywhere and you must obtain permission from Beth Bergrin to use these images anywhere for any purpose.

Motion Point 4: Unfair Advantage

I consider the main issue to be whether the monitored communications were legally turned over to the U.S. Attorney's Office. Most of us are aware that an inmate in a federal facility has minimal right to privacy and when a person signs-up for a Corrlinks account to exchange emails with an inmate, they are acknowledging that the communications are monitored and by clicking the "accept" button, they're accepting this.

The Bureau of Prisons (BOP) monitors every form of inmate communication, from snail-mail letters to telephone calls to emails. The inmate has no right to privacy from the BOP. The party communicating with the inmate may read the Corrlinks FAQ section and No. 9 states:

Are my messages monitored?

The institution housing an inmate determines its need for monitoring messages, letters and other communication. If desired, the institution may monitor any or all messages for any or all inmates. CorrLinks staff does not monitor your messages but may need to assist the institution in such monitoring from time to time.

The problem lies in who is given these communications and how they're used. BOP monitors for the purpose of security and maintaining order in the institution. This is clear and understandable. However, is it legal for BOP to turn those communications over to other government agencies when there is no mention or evidence of any sort of crime?

In the case of Ana DeStefano, her communications with Paul Bergrin were turned over to the government to be used as potential impeachment material. Both Ms. DeStefano and Bergrin were unaware that their personal communications would be used by the government. Keep in mind that there was nothing illegal or in any way related to a crime in the communications and they were very personal. Clearly Ms. DeStefano was shocked that AUSA John Gay used the communications to assist his questioning of her when she testified.

Was it legal for the government to make such use of Ms. DeStefano's personal communications? Did BOP turn all communications over as the result of an ex parte court order, or are all forms of communications sent to the US Attorney's Office and the FBI?

In the situation of Lemont Love, his communications with an outside party (his younger brother) were turned over to the government for the purpose of impeachment (or attempted impeachment) in this trial. Mr. Love is in a New Jersey State prison. Does he have a lawsuit or is it absolutely legal for the State of NJ to turn over his communications to any government agent that asks? Was there an ex parte order that the defense was unaware of?

Doesn't such a practice give the government an unfair advantage at trial? If the US Attorney's Office and the FBI received all of Bergrin's communications prior to trial, they already knew the entire defense strategy. When one side is aware of every move the other side intends to make in advance, that is the definition of unfair advantage.

Finally, did the government have any obligation to disclose the use of the monitored communications prior to the defense witness testimony?

It is entirely possible that these questions will end-up with the SCOTUS. There is no clear precedent or applicable law from what I have been told.

Read the entire Motion: Motion for Reconsideration

IV. THE GOVERNMENT’S UNAUTHORIZED ACCESS TO AND MONITORING OF BERGRIN’S COMMUNICATIONS WITHOUT A COURT ORDER WERE IMPROPER AND CAUSED ACTUAL AND EXTREME PREJUDICE TO BERGRIN’S DEFENSE.

The government's use and abuse of electronic surveillance in the seizure of Bergrin's emails and telephone conversations, while incarcerated at the Metropolitan Detention Center, Brooklyn, New York clearly violated the Department of Justices’ Electronic Surveillance Manual and Title III of the Wire Intercept Act as well as the auspices and spirit of the Fourth Amendment prohibition against unreasonable search and seizures.

Inmates consent to the screening of telephone conversations and emails while detained within the Bureau of Prisons. This consent, however, is not limitless. It is implicitly understood that interception and monitoring is for security purposes only. These communications are not intended to provide the prosecution with unfettered access to an inmate’s personal and legal communications. The purpose of the monitoring, and consenting to the monitoring, is not to give the prosecution a means to gather evidence for impeachment purposes. Nor is the monitoring intended to be used to scrutinize defense strategies and gather intelligence to determine defense posture in the defense of charges. Moreover, it is improper to use this information to detrimentally affect the defense’s case. Yet, that is precisely what the Government did in this case.

The detention of an inmate, especially a pro se defendant, by its very nature inhibits case preparation and detrimentally affects the ability to prepare a defense. It deleteriously precludes a defendant from properly preparing his case, affects one's ability to properly prepare witnesses for testimony, stymies the ability to concentrate fully on the legal and factual aspects of the defense, and limits the ability to review discovery and fully research issues. The time allotted for case preparation is materially affected and Sixth Amendment rights are extremely hampered. A pro se incarcerated inmate does not have the same opportunities and ability to attain an equivalent level of preparedness as the government as he has diminished resources and assistance.

Consequently, inmates rely on the ability to effectively communicate by use of the telephone and email with co-counsel, paralegals, investigators, experts, family and friends. In sum, Defendants materially use emails and the telephone to foster case preparation. It is impossible to prepare a case for trial without material reliance on them.

The Department of Justice policy is that, in the event that a telephone conversation, monitored routinely by prison officials for the purpose of prison security, is found to contain information relating to the violation of law, prison officials may disclose that information to the proper law enforcement authorities for prosecution. Law enforcement authorities outside the Bureau of Prisons are not supposed to be given carte blanche and unfettered access to an inmate’s monitored telephone calls and electronic communications. In the cases when outside law enforcement agencies ask the Bureau of Prison officials to monitor and disclose future telephone and electronic communications of specific inmates in connection with a criminal investigation being conducted of activities outside the confines of the prison, not affecting prison security or administration, this monitoring is only properly conducted when an interception order has been procured under the authority of Title III.2

In the case sub judice, the government obtrusively, and in contravention of Bergrin's Fourth Amendment, Constitutional and due process rights, seized all of Bergrin's e mails and telephone conversations, without judicial authorization or prior notice to Bergrin. The communications were devoid of any security issues to the Bureau of Prisons and did not contain any indicia of law violations. The seizure paralyzed Bergrin's ability to communicate with Stand-By-Counsel, enabled the government to obtain advance notice of defense trial strategy and the scope and substance of defense investigation and was done with for no other purpose than to unjustly and unfairly obtain impeachment materials for use at trial. It also enabled the government to further the course of its investigation and to prepare their witnesses to counter the defense case. All matters that weighed heavily in the outcome of the trial and gave the government unfair advantage; especially since Bergrin was a Pro Se litigant whom relied heavily on communicating with his defense team, telephonically and through the use of the email system. The prejudice suffered by Bergrin and his case as the result of the government's actions was extremely detrimental. It resulted in denying Bergrin a fair trial.

The extent of the monitoring, how the Government used this information to counter the defense’s strategy and impede the defense’s investigation and trial preparation, and whether other actions were taken to interfere with the defense must be ascertained to determine the full impact on Bergrin’s due process rights and, in particular, whether acts prejudicial to the administration of justice were engaged in by members of the Department of Justice.

Accordingly, the defense respectfully requests that this Honorable Court Order a hearing to compel the government to provide a copy of all communications seized and in its possession, disclose the manner in which the Government seized these communications and the extent to which they were used. Moreover, it is respectfully requested that, if the government obtained telephone conversations and mails of defendant, which included legal communications with members of the defense trial team, that this Court find that defendant's Due Process and Sixth Amendment rights were violated, set aside the verdict and dismiss the Indictment.

I thank the Court for its thoughtful consideration of these issues. 

Motion Point 3: Multiple Violations of Due Process

 To read Paul Bergrin's motion in its entirety, go to: Motion for Reconsideration

III. THE GOVERNMENT’S INTENTIONAL AND DELIBERATE DELAY AND COLLUSIVE MANNER IN BRINGING THE INDICTMENT WAS ORCHESTRATED TO ACHIEVE A TACTICAL ADVANTAGE WHICH ACTUALLY AND SUBSTANTIALLY PREJUDICED BERGRIN’S DEFENSE AND VIOLATED HIS DUE PROCESS RIGHTS.

 On or about November 25, 2003, Bergrin was retained to represent William Baskerville in the United States District Court, for the District of New Jersey and a formal Notice of Appearance was filed. It is alleged that, subsequent to Baskerville's Initial Appearance (Rule 5, Federal Rules of Criminal Procedure), Bergrin informed Hakeem Curry that the cooperating witness against Baskerville, was Kemo Deshawn McCray. Additionally, it is alleged that 4 to 9 days after Thanksgiving, Bergrin appeared in the area of Avon Avenue and either 16th or 17th Street, Newark, New Jersey, in the evening hours and supposedly informed Hakeem Curry, Rakeem and Jamal Baskerville, Jamal McNeil and Anthony Young, that Baskerville is going to spend the rest of his life in prison unless they get rid of McCray; and that if there is “no Kemo, there is no case.”

On March 2, 2004, in Newark, New Jersey McCray was shot and killed.

In or about May, 2005, William Baskerville was indicted for the capital murder of McCray and in April of 2007 stood trial, in United States District Court, Trenton, New Jersey. During the course of the trial, the government argued that Bergrin was as guilty as Baskerville for McCray's murder and this accusation was testified to by lead case agent Shawn Brokos of the Federal Bureau of Investigation and Assistant United States Attorney John Gay. Baskerville was convicted of McCray's murder and sentenced to life in prison.

In or about January 2007, Bergrin was arrested and Indicted for offenses in New York County, which included conspiracy to commit money laundering, money laundering, conspiracy to promote prostitution, promoting prostitution and misconduct by an Attorney. The offenses were alleged to have occurred between July of 2004 and March of 2005, in New York and New Jersey. A memorandum in the case of United States v. Bergrin, designated as J03166 and 03167, unequivocally depicted that there were innumerable communications and cooperation in the investigation and charging of Bergrin between New York County and the federal government. The memo proves that the New York authorities agreed to delay arresting Bergrin in order to further investigative and charging efforts by the federal government and for federal authorities to achieve strategic and tactical advantages in the

disposition of their case.

Both New York State and the United States Attorney's Office for New Jersey colluded, acting jointly and cooperatively in the prosecution of the prostitution and money laundering case. More importantly, the Jencks Act materials specifically prove that New York State and New Jersey federal law enforcement authorities strategized on the investigation, the timing of Bergrin's arrest and indictment and any plea offers in the New York case.

Bergrin has had continuous legal representation since his arrest in January of 2007 to the present.

In late April of 2009, the New York authorities offered to resolve the Indictments through a negotiated plea by way of offering to Bergrin pleas to misdemeanor charges. Bergrin was promised that all felony charges would be dismissed and that he would receive a maximum of one year probation. On May 4, 2009, Bergrin entered pleas of guilty to two misdemeanor counts of conspiracy to promote prostitution as a means to resolve all charges existing against him.

Within approximately two weeks of his entry of the New York plea, Bergrin was indicted, arrested and charged by New Jersey federal authorities with the New York prostitution accusations, the murder of McCray and conspiracy to commit murder of witnesses against Vicente Esteves as well as other charges.

In or about June 2008, Bergrin was retained to represent Vicente Esteves on a criminal Indictment returned against him in New Jersey Superior Court. Within weeks of being retained to represent Esteves the government induced, paid and procured federal informant Oscar Cordova to record Bergrin and persistently suggest to Bergrin that Cordova would kill cooperating witnesses against Esteves.

The government's delay in indicting Bergrin from the dates of the alleged commission of the offenses violates the fundamental concepts of justice, which forms the basis of our civil and political institutions. It is abhorrent to the community's sense of fair play and decency. Mooney v. Holohan, 294 U.S. 103, 112 (1935), Rochin v. California, 342 U.S. 165, 173 (1952). See also Ham v. South Carolina, 409 U.S. 524, 526 (1973), Lisenba v. California, 314 U.S. 219, 236 (1941 ) and Herbert v. Louisiana, 272 U.S. 312, 316 (1926).

In United States v. Marion, the Supreme Court considered the significance for constitutional purposes the pre-indictment delay. 404 U.S. 307 (1971). The Court held that the Due Process Clause of the Fifth Amendment protects individuals against oppressive pre indictment delay. Id. at 324. Actual prejudice makes a due process claim ripe for adjudication and a due process inquiry must consider the reasons for the delay as well as the prejudice to the accused. Id. at 324-325. A "tactical delay" automatically violates the Due Process Clause. A Due Process violation might also be made out upon the showing of prosecutorial delay incurred in the reckless disregard of circumstances known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense. Id. at 321, n 25.

The Third Circuit has held that pre-indictment delay, which is unreasonable and inexcusable, violates the Due Process Clause when it prejudices the defendant (the time between the crime and bringing the indictment) and the delay was motivated in order to obtain tactical advantage or to harass. United States v. Beckett, 208 F.3d 140, 150-51 (3d Cir. 2000), United States v. Arakelyan, 2008 WL 1849126(E.D.Pa., 3d Cir. 2000).

Although these cases did not find unreasonable delay to achieve a tactical advantage, their facts are incomparable and not analogous to Bergrin’s case. Of utmost importance is the finding by our sister Circuits who opined that the government violated defendants’ due process rights when they delayed indictment in order to bolster their case. "The desire to gain such a tactical advantage is not a sufficient reason for trial delay."

In the case sub judice, the pattern of the government's delay can only be interpreted in one light: that the delays were intentionally caused to gain a tactical advantage on behalf of the government and through the manipulation of constitutionally prescribed prohibitions which caused actual prejudice to Bergrin.

The government colluded with the New York District Attorney's Office to make Bergrin an extraordinarily lenient plea offer so that he would accept it and they would have proof to meet one of the two predicate acts for the RICO charge. It is of no coincidence that New Jersey authorities delayed charging Bergrin until subsequent to his New York guilty plea; and that Bergrin was indicted immediately thereafter for charges that originated and terminated in 2005. What is just as atrocious is that the date of Bergrin's arrest and indictment in the case at hand was delayed through coordination between both offices so federal authorities could bolster their case against Bergrin.

The prejudice suffered by Bergrin in defending against the charges as a result of the government's delay in charging him with the McCray murder for five years is immeasurable. The delay resulted in unavailable evidence such as EZ Pass and other records, which would have provided proof Bergrin was not at the location alleged by the government's only witness; the loss of witness Stacey Webb, who died in 2013 and would have contradicted Young's false testimony; dissipated memories of witnesses who were unable to recall events that occurred years earlier; the loss of records detailing Bergrin's whereabouts at given times, which would have exculpated him; and the inability to locate multiple key witnesses who moved to different locations since the alleged incident occurred.

Additionally, the delay in charging Bergrin with the prostitution and money laundering charges strategically crippled Bergrin's ability to make an intelligent and informed decision as to resolving the New York case and inhibited Bergrin's ability to defend the federal charges.

The government further bolstered its case and obtained a significant tactical advantage through their unreasonable delay in charging Bergrin by procuring, inducing and hiring confidential informant Oscar Cordova to obtain recorded statements from Bergrin. Despite the fact that multiple prosecution representatives accused Bergrin of being complicit in the McCray murder case, at least three years prior to him being charged, they unreasonably delayed charging him to achieve a tactical advantage and to usurp their obligations pursuant to United States v. Massiah and United States v. Henry. Bergrin was represented by counsel throughout the proceedings and the Esteves charges are innately similar to the McCray charges and indeed were used as 404(b) evidence for the jury to consider in weighing the McCray evidence. The Government’s pattern of manipulation and usurpation was used to avoid the constitutional restraints of Massiah and Henry in violation of the Due Process Clause and the progeny of the cases delineated there from. The Government’s actions abused and violated the aura, tenets and principles espoused in Massiah and Henry.

Moreover, the Government’s representations during the United States v. William Baskerville trial show the intentional and deliberateness in the Government’s decision to delay charging Bergrin with the McCray murder. The government clearly sought to gain a tactical advantage and harm Bergrin’s ability to effectively defend against the McCray charges by delaying charging Bergrin with the 2004 murder. As is clear from the trial testimony of lead prosecutor AUSA John Gay, the Government intentionally delayed pursuing the McCray murder charge to bolster the other charges in its 2009 indictment.

Specifically, during the trial of United States v. William Baskerville, the Government’s lead prosecutor AUSA John Gay testified during the penalty phase. AUSA Gay stated that Bergrin and other coconspirators were not charged because the Government did not “…feel we can prove the case beyond a reasonable doubt at trial.” (May 8, 2007, transcript pages 6277:1 to 6277:25).

Moreover, AUSA Minish's argument to the jury suggests that the Government doubted Bergrin gave the advice Young claimed in his testimony. Furthermore, it shows that the Government misrepresented to the jury the evidence of when this alleged advice was purportedly given by Bergrin in the United States v. Bergrin trials and that the Government grossly and knowingly exaggerated Bergrin’s role. There, AUSA Minish stated:

…Let’s put an end to this Paul Bergrin thing. Defense counsel’s argument, taken to its logical conclusion, is this: Paul Bergrin gave him bad legal advice, that if you kill this guy, somehow or another you’ll get off so, therefore, the fact that he actually did it should be excused; that because he made a decision, which by the way, we have no idea if that was the advice, there is zero testimony to say that was even advised prior to giving up the name, prior to the defendant making a call to Rakeem Baskerville, but somehow or another, having bad legal advice is to excuse this act? Or the fact these other men have not been charged yet...This is a full three years after the crime was committed...while John Gay is my boss, I can tell you right now, it doesn’t matter a whole heck of a lot to whether or not he’s convinced what he believed…whether back in his office he believes or in his personal opinion he believes people are involved does not get you a conviction. {emphasis added}.

(May 10, 2007, United States v. William Baskerville, 6707:17-6709:3). Moreover, AUSA Robert Frazer noted, “…others responsible for contributing to the death of Kemo have not been charged with murder or any other crimes associated with this murder….John Gay told you why. Because we only charge people that we can prove - - where we can prove the case beyond a reasonable doubt…Anthony Young told us about the other co-conspirators and the whole plan and their roles, but Anthony Young by himself, by himself does not equal beyond a reasonable doubt. If we had come in here without Eric Dock, Rick Hosten and Eddie Williams and all the others, just put Anthony Young up there, could we have expected you to vote this case beyond a reasonable doubt based on Anthony Young’s lone testimony? No….We’re not going to put one person up there without corroboration. {emphasis added}. (May 10, 2007, United States v. William Baskerville, 6660:16-6661:10)

As a result of the delay, Bergrin’s defense was actually and substantially prejudiced in the 2011 and 2013 trials in numerous ways including, as set forth above, the unavailability of key witnesses and documents, destruction of physical evidence as well as pretrial publicity.

Since delaying the charge violated Bergrin’s due process rights and denied him a fair trial, the conviction must be vacated and the McCray-related charges in the indictment dismissed with prejudice. See United States v. Marion, 404 U.S. 307,324 (1971) (noting that the statute of limitations does not fully define a defendants’ rights with respect to the events occurring prior to indictment and that the Fifth Amendment’s Due Process Clause requires an indictment’s dismissal if the pre-indictment delay caused substantial prejudice to the right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused) and United States v. Lovasco, 431 U.S. 783,795-796 (1997) (delay in filing charges amounts to a due process violation where there is actual prejudice and prosecutorial intent to undermine the defendant’s ability to defend against the charges where Government gains a “tactical advantage”).

For the aforementioned reasons, the verdict must be vacated and the indictment must be dismissed as violative of the Due Process Clause. United States v. Ismaili, 828 F.2d 153, 167-68 (3d Cir. 1998), United States v. Lovasco, 431 U.S. 783 at 789-90 (1977). 

Motion Point 2: Relationships of Judge Cavanaugh

Until I discovered the information herein from the person that did the research, I thought that U.S. District Judge Dennis Cavanaugh had some sort of grudge against Paul Bergrin. At this point it seems as if the bias is not a conscious or calculated effort and is simply the natural consequence of his many personal and professional relationships to numerous parties with a horse in this race.

I strongly believe that there were no valid grounds for Judge William Martini to be recused in this case. The bottom line is that the impartial Judge Martini made a few valid rulings unfavorable to the government and they responded with a nasty temper tantrum like the spoiled brats they are. The Court of Appeals obliged, perhaps for no reason other than the bias of the deciding judges (former US Attorneys). On that note, Bergrin has little chance for justice in the Third Circuit. And then there's Justice Samuel Alito, no doubt ready to trip Bergrin if any part of this case makes it to the SCOTUS.

In any issue that actually mattered in this last trial, Judge Cavanaugh ruled for the government. Sure, he threw Bergrin a bone every now and then and tried to keep the overzealous AUSAs in check on occasion, but anyone that has read all of the transcripts is clear on the bias; it cannot be denied. Admittedly, I was happy to learn that it was related to personal and professional bonds and not simply a vindictive play on behalf of the government.

I consider Judge Cavanaugh an excellent judge in other matters that has no issue with impartiality and follows the rule of law. Yes, I have been watching the Backpage / Internet Archive case via EFF and why wouldn't I? I have been heavily threatened by parties connected to this case over a blog and a couple of books. Not that I haven't been threatened in past by others, but I'm not stupid and I do realize the powerful people involved in this prosecution and what they're capable of.

As a result of this trial, I no longer have any faith in the system. This should mean something to you if you recall that I am a former defendant acquitted by a jury of my peers on racketeering and conspiracy counts in Florida. One would expect me to have all of the faith and trust in the world. But I know what Shawn Brokos is. I know what John Gay is. I am all too aware of the facts and reality of this prosecution as I believe Judge Martini was before they managed to ditch him. As we now know, the move was fatal for Paul Bergrin.

This is Point Two of the Motion for Reconsideration:

II. GIVEN THE COURT’S PERSONAL AND PROFESSIONAL RELATIONSHIPS WITH PARTIES ACCUSED OF MISCONDUCT IN THE CASE, A REASONABLE PERSON, WITH KNOWLEDGE OF ALL THE FACTS, WOULD CONCLUDE THAT THE COURT’S IMPARTIALITY MIGHT BE REASONABLY QUESTIONED.

Subsequent to Bergrin’s first trial before the Honorable William J. Martini, Judge, United States District Court, Newark, New Jersey, the government moved for reassignment of Judge Martini, claiming he was not fair and impartial and the Government feared it could not receive a fair retrial. In so moving, the Government cited 28 U.S.C. 455(a) and 28 U.S.C. 2106 and United States v. Bertoli, 40 F.3d 1384, 1411 (3rd Cir. 1994), arguing that a Judge should no longer preside over a case when a "reasonable person, with knowledge of all the facts, would conclude that the Judge's impartiality might be reasonably questioned.” United States v. Wecht, 484 F.3d 194,213 (3d. Cir. 2007).

Defendant is aware that the apparent bias must be derived from an extrajudicial source, meaning something above and beyond judicial rulings or opinions formed in presiding over the case. See Liteky v. United States, 510 U.S. 540, 555 (1994). In the case sub judice, the blatant appearance of partiality begs for the District Court to immediately recuse itself from this case, seek judicial reassignment and forego further rulings.

In pretrial filings, the defendant articulated the dire need for an evidential hearing relevant to governmental misconduct and improprieties which substantially affected defendant's chances of receiving a fair and impartial trial. Defendant submitted a sworn Certification from retired Federal Bureau of Investigation Agent and licensed Private Investigator, Louis Stevens which espoused a plethora of illegalities; acts of professional misconduct and improprieties infringing upon Bergrin’s Due Process rights; and acts committed by various Attorneys, government representatives and parties to the case (hereinafter Certification). The Certification, the additional supplemental submission (Bergrin Supplement dated July 15, 2013), as well as trial testimony clearly named specific attorneys in this case such as Richard Roberts, Vincent Nuzzi, John Azzarella and Christopher Adams. These attorneys represented seminal cooperating witnesses such as Rondre Kelly, Albert Castro, Abdul Williams, Eugene Braswell, Ramon Jimenez and Yolanda Jauregui; and the information provided to the Court specifically detailed how these attorneys, with the government's assistance and at times at the Government’s behest, breached their obligations pursuant to the Rules of Professional Responsibility and acted outside the bounds of the law.

What has now been ascertained is the inherent intrapersonal and professional relationship's this Honorable Court had with each one of these legal representatives. As set forth herein, the facts show that the public would perceive an overwhelming appearance of impropriety and partiality by this Court in presiding over this matter.

Shortly after being assigned this matter, the defense provided this Court with the Stephens’ certification. The certification raised serious questions about the conduct of Richard Roberts, the attorney who represented several cooperating witnesses, solicited former Bergrin clients and sought movie rights from at least two cooperating witnesses. After trial, the defense learned that this His Honor and His Honor’s close family members have close personal ties with Roberts.

Specifically, attorney Roberts attended Seton Hall Law School with His Honor from 1970 to 1972. Both His Honor and Roberts were employed by the State of New Jersey in the County of Essex from approximately 1973 to 1977. Although they worked in different offices, they forged a genuine friendship and bond based upon their innumerable interactions. Roberts worked for the Essex County Prosecutor's Office for almost ten years and His Honor for the Essex County Public Defender's Office.

During Roberts' employ as an Assistant Prosecutor, he was promoted to supervisory positions and established a life-long relationship with his former boss the Essex County Prosecutor, Joseph Lordi. Lordi is His Honor’s father-in-law. Roberts has publicly and repeatedly referred to Lordi as having been "like a second father to him." See Waldron, Mary. The Life and Career of Richie Roberts Practicing Criminal Defense Attorney and Inspiration for the Movie “American Gangster.”

http://www.lawcrossing.com/article/3768/American-Hero-Richard-Richie-Roberts.

As Roberts’ second father, Lordi and His Honor shared a similar bond and relationship as that between Lordi and Roberts. Although unknown to the Defendant until after trial, these relationships apparently were public knowledge as is the fact that Roberts is also a close friend with His Honor's wife, Linda Lordi Cavanaugh. The relationship between Roberts, His Honor and Mrs. Lordi Cavanaugh date back approximately 30 years.

His Honor also was a partner in the Law Firm of Whipple, Ross and Hirsch from 1987 to 1992, the firm that presently employs attorney John Azzarella; the representative for Ramon Jimenez and the attorney against whom Bergrin and Jimenez asserted ethical violations. His Honor remains extremely close personally and professionally with multiple partners in that firm.

Attorney Vincent Nuzzi, the attorney for cooperating witness Eugene Braswell, as well as the former attorney for Hakeem Curry and Jarvis Webb, as well as multiple members of the Curry Organization, has been one of His Honor's closest friends and supporters for the past 30 years. Not only did His Honor work at the Office of the Essex County Public Defender with Nuzzi but His Honor considers Nuzzi one of his closest friends.

Christopher Adams is a partner in the firm of Joseph Hayden, Jr., a firm with which His Honor shares a close intrapersonal relationship for more than 30 years with its senior partners, Justin Walder and Joseph Hayden, Jr. It must also be noted that His Honor served his first Judicial Clerkship with Judge Francis Hayden, in New Jersey Superior Court, Essex County, New Jersey.

It is a combination of all these factors, which, most respectfully, gives the public the perception of an appearance of impropriety and partiality by this Court and to which Defendant now seeks recusal of this Honorable Court. It is apparent and inherent that this Honorable Court could not have sat as an independent and objective jurist in light of his close, professional and personal attachments and relationships with these attorneys who represented the core of the cooperating witnesses against Bergrin. This is especially so in light of Bergrin's accusations of misconduct against these attorneys and the prejudicial impact they had in the presentation of evidence in the case.

These relationships between His Honor and the involved parties, discovered subsequent to Bergrin's trial, not only affected the dispositional rulings against Bergrin but required full and complete disclosure and a hearing to determine the degree of prejudice and the impact these outside influences may have had on the judicial proceedings.

In sum, this Honorable Court should no longer preside over this case because a reasonable person with knowledge of all these facts would have to conclude that this Court could have been perceived by the public as partially disposed against Bergrin and in personal favor with those adverse to Bergrin’s interests in this proceeding.

I admit to having little confidence in Judge Cavanaugh doing the right thing, but I hope he proves me wrong.

Motion Point 1: The Kemo Murder Conspiracy Counts

The reader must only look around to understand how I feel about the lack of evidence against Paul Bergrin on any count related to the Kemo Deshawn McCray murder. I believe that I have been clear as to my position on Anthony Young's testimony. It's extremely hard for me to imagine the jury believing Young, but impossible to consider that the three experienced AUSAs in this case (Gay, Minnish, and Sanders) and Judge Dennis Cavanaugh actually thought Young's testimony was truthful, especially as it pertained to the Newark street corner meeting.

Considering the call recordings and lack of any corroborative evidence, it should be clear to anyone able to think that Young is full of crap and has an agenda. And don't forget his ex-girlfriend, Rashidah Tarver, or Ben Hohn, or well-known attorney Paul Feinberg - each contradicted the Young testimony. Consider all of the testimony that was contradictory to Young's testimony and read Point 1 of the Motion for Reconsideration:

I.  A MANIFEST INJUSTICE WOULD RESULT IF THIS COURT DID NOT RECONSIDER ITS RULINGS DENYING JOA ON THE MCCRAY COUNTS. THE GOVERNMENT HAS GROSSLY MISLED THE COURT ABOUT THE EVIDENTIAL VALUE OF THE RECORDINGS BECAUSE THOSE RECORDINGS PROVE BERGRIN’S ACTUAL INNOCENCE OF THE MCCRAY CHARGES AND THAT THE GOVERNMENT RELIED UPON TESTIMONY IT KNEW OR SHOULD HAVE KNOWN WAS PERJURED.

The Court erred in adopting the government's intentionally deceptive allegation that Bergrin was "cherry picking" recordings in footnote three, (Opinion p. 8) and in finding that Bergrin would have opened himself up to other recordings that incriminate him.(1) The absolute fact remains that there is not a shred of credible evidence to support this contention. The Government has not offered sufficient facts about the content of from its review of the entirety of the recordings upon which this Court should base this conclusion. The Government’s claims are baseless and meritless. See footnote 1 herein. The July 15, 2013 supplement delineates the inaccuracy of this allegation and this Court must find that the recordings are diametrically opposed to Anthony Young’s testimony and prove Bergrin's "actual innocence" of the McCray murder charges.

The seminal point pertaining to the Curry Title III intercepts and recordings that has been ignored and repeatedly distorted by the government is that, from the date of William Baskerville's (hereinafter Baskerville) arrest on November 25, 2003, until the termination of the Curry wiretap, there is not a recording or scintilla of evidence to corroborate the underlying premise of the government's entire theory of the "Kemo" case, to wit, that McCray was murdered because Bergrin informed the Curry group or William Baskerville’s associates that Baskerville was facing life in prison and that Baskerville

would go free and Bergrin would win the case if McCray was not a witness.

More disturbing is that the recordings prove that Young falsely swore that the organization had absolutely no knowledge that Baskerville was facing a life sentence until Bergrin met with them on the streets of Newark, either before or after Thanksgiving, depending on Young's date of testimony and proffering. See footnote 1.

The ardent fact remains that the recordings clearly, unequivocally and categorically prove, without an iota of dispute, the complete opposite. None of Baskerville’s associates believed he was facing life imprisonment. Indeed, the recordings confirm the incredulousness of the government's sole witness against Bergrin and that the government knew or should have known that Young perjured himself as to Bergrin's involvement in the case.

As the Government is well aware, it is crystal clear from the recordings that Baskerville’s associates knew the evidence against Baskerville was overwhelming, independent of McCray, and that Baskerville was realistically and practically only facing between 12 and 13 years of imprisonment, not life imprisonment as asserted by the government. Based on the recordings, the government also knew or should have known the physical whereabouts of Curry almost at all times --arguably exculpatory alibi evidence which refuted Young’s claims-- and that there were never any meetings between Bergrin and anyone in the area of Avon Avenue in Newark, neither before or after Thanksgiving 2003.

To clarity the defense’s position: it was virtually impossible to scrutinize in excess of 33,000 recordings in the time allotted for pre-trial preparation and in the dysfunctional condition in which Pro Se defendant and his defense team received the recordings. Furthermore, it would have been impossible to listen to them in the time consuming manner the recordings were formatted -- many of which were unable to be opened when they were first provided -- along with the fact that the recordings encompassed a majority of hang ups, calls to voice mail and immaterial and irrelevant conversations. Additionally, the call files were not named, itemized or indexed, and complete transcripts were not provided. As such, it was impossible to identify the parties involved and would have been like trying to find the proverbial “needle in a haystack.” Moreover, defendant had been assured by others that the calls were not incriminating and that it would be a waste of time to review.

The government should have been candid and forthright to the defense and accentuated the magnitude of the exculpatory nature of the recordings, which clearly established that Young fabricated evidence and lacked credibility as to material facts. This is especially so because the only direct evidence upon which the McCray murder conviction and related counts were based was the sole uncorroborated and incredulous testimony of Young, a witness who gave three different contradictory accounts of the murder, all of which consistently contradicted the irrefutable and uncontestable evidence. Clearly, the prosecution knew or should have known Young’s testimony was perjured.

Yet, instead of upholding its constitutional oath to seek the truth and pursue justice, the government intentionally and knowingly attempted to deceive the Court in its reply submission by claiming that the alleged Bergrin meeting occurred on December 4, 2003. There can be no question that this was an attempt to subvert justice because the government believed and relied upon the fact that Bergrin had not and would not review the recordings. The fact remains that the recordings have now been reviewed post-trial and the interests of justice compel this Court to set aside the verdict.

This court is not powerless to act to prevent such a gross miscarriage of justice when presented with proof of actual innocence. Indeed, this court has a constitutional duty to ensure a fraud was not perpetuated upon the tribunal. Consistent with that purpose, this court should implore the Government to reinvestigate the facts that gave rise to the McCray murder charge against Bergrin and the exculpatory evidence set forth in the recordings. See Friedman v. Rehal, 618 F.3d 142, 155-56 (2d Cir. 2010) (addressing the question of actual innocence by urging the prosecution to reinvestigate case based on new and material evidence that established a reasonable likelihood that an injustice may have occurred because of proof defendant was actually innocent despite fact that the underlying legal claim was procedurally and substantively defective).

Footnote 1:

1 During the trial of United States v. William Baskerville, AUSA John Gay testified that Bergrin and other co-conspirators were not charged because the Government did not “…feel we can prove the case beyond a reasonable doubt at trial.” (May 8, 2007, transcript pages 6277:1 to 6277:25). Moreover, AUSA Minish's statements in the Baskerville case contradict the Government’s claims other evidence existed beyond Young’s uncorroborated testimony of Bergrin’s alleged complicity in the McCray murder. AUSA Minish stated:

…Let’s put an end to this Paul Bergrin thing. Defense counsel’s argument, taken to its logical conclusion, is this: Paul Bergrin gave him bad legal advice, that if you kill this guy, somehow or another you’ll get off so, therefore, the fact that he actually did it should be excused; that because he made a decision, which by the way, we have no idea if that was the advice, there is zero testimony to say that was even advised prior to giving up the name, prior to the defendant making a call to Rakeem Baskerville, but somehow or another, having bad legal advice is to excuse this act? Or the fact these other men have not been charged yet...This is a full three years after the crime was committed...while John Gay is my boss, I can tell you right now, it doesn’t matter a whole heck of a lot to whether or not he’s convinced what he believed…whether back in his office he believes or in his personal opinion he believes people are involved does not get you a conviction. {emphasis added}.

(May 10, 2007, United States v. William Baskerville, 6707:17-6709:3). Moreover, AUSA Robert Frazer noted, “…others responsible for contributing to the death of Kemo have not been charged with murder or any other crimes associated with this murder….John Gay told you why. Because we only charge people that we can prove - - where we can prove the case beyond a reasonable doubt…Anthony Young told us about the other co-conspirators and the whole plan and their roles, but Anthony Young by himself, by himself does not equal beyond a reasonable doubt. If we had come in here without Eric Dock, Rick Hosten and Eddie Williams and all the others, just put Anthony Young up there, could we have expected you to vote this case beyond a reasonable doubt based on Anthony young’s lone testimony? No….We’re not going to put one person up there without corroboration. {emphasis added}. (May 10, 2007, United States v. William Baskerville, 6660:16-6661:10)

What sort of mind claims to believe the testimony of Anthony Young? Or for that matter, who would believe jailhouse snitches like Eric Dock and Richard Hosten? All three of these liars have spent their days and nights plotting their way out of prison.

A Motion for Reconsideration has been Filed

Today there was a Motion for Reconsideration filed in this case via hand delivery on behalf of Paul Bergrin, acting Pro Se. Mr. Lustberg is on vacation and as time matters, there was no choice except to go this route.

This is the beginning paragraph of the motion:

Defendant hereby submits this motion for reconsideration of the Honorable Court's Opinion and Order, dated July 23, 2013. Moreover, defendant hereby submits additional points for ruling and reconsideration. Please take notice that Defendant was not provided with a copy of this Court's ruling and opinion until July 30th, 2013.

These are the 4 major points covered in this Motion for Reconsideration:

I.  A MANIFEST INJUSTICE WOULD RESULT IF THIS COURT DID NOT RECONSIDER ITS RULINGS DENYING JOA ON THE MCCRAY COUNTS. THE GOVERNMENT HAS GROSSLY MISLED THE COURT ABOUT THE EVIDENTIAL VALUE OF THE RECORDINGS BECAUSE THOSE RECORDINGS PROVE BERGRIN’S ACTUAL INNOCENCE OF THE MCCRAY CHARGES AND THAT THE GOVERNMENT RELIED UPON TESTIMONY IT KNEW OR SHOULD HAVE KNOWN WAS PERJURED.

II.  GIVEN THE COURT’S PERSONAL AND PROFESSIONAL RELATIONSHIPS WITH PARTIES ACCUSED OF MISCONDUCT IN THE CASE, A REASONABLE PERSON, WITH KNOWLEDGE OF ALL THE FACTS, WOULD CONCLUDE THAT THE COURT’S IMPARTIALITY MIGHT BE REASONABLY QUESTIONED.

III.  THE GOVERNMENT’S INTENTIONAL AND DELIBERATE DELAY AND COLLUSIVE MANNER IN BRINGING THE INDICTMENT WAS ORCHESTRATED TO ACHIEVE A TACTICAL ADVANTAGE WHICH ACTUALLY AND SUBSTANTIALLY PREJUDICED BERGRIN’S DEFENSE AND VIOLATED HIS DUE PROCESS RIGHTS.

IV.  THE GOVERNMENT’S UNAUTHORIZED ACCESS TO AND MONITORING OF BERGRIN’S COMMUNICATIONS WITHOUT A COURT ORDER WERE IMPROPER AND CAUSED ACTUAL AND EXTREME PREJUDICE TO BERGRIN’S DEFENSE.

During the course of the next week, I will be discussing each point in a separate blog post. You can read the entire 11-page motion here: Motion for Reconsideration August 8 2013

False and Misleading Evidence

A supplement to the defense letter dated 3 July, 2013, was filed on behalf of Paul Bergrin this morning. This is the first document in this case that was not filed by Bergrin's stand-by counsel Mr. Lustberg, and the reason for this is that time is of the essence. Paul Bergrin was found guilty on all counts by a jury deceived by the government; however, he has not been convicted.

An excerpt from the supplemental brief:

It is a sad day for our criminal justice system when the government pathetically and desperately submits a recantation letter such as the one of 3 July, and a letter with the contents contained in the one of 10 July; knowing they contain misleading, atrocious and blatant inaccuracies. Their misguided reliance on the December 4, date as the date of the meeting, proves they wrongfully pursued Bergrin and should not have relied on Young; a witness proven to be unbelievable. It further establishes that their underlying theory of the case and the fact pertaining to an alleged meeting on December 4, was absurd and misguided.

Read the entire brief here:

Bergrin Supplemental Brief 15 July 2013

Note that I have uploaded the brief to a new website that is not yet complete. When the site is finished soon, I will introduce it here.

Government Actors Without Conscience

Someone is angry; that's for sure. The government filed a scathing 3-page letter responding to Paul Bergrin's last defense letter and attached a telephone recording transcript to it dated November 25, 2003 - the date of William Baskerville's arrest. The letter:

Bergrin Trial Govt Letter 10 July 2013

The transcript reveals Bergrin telling Hakeem Curry that Baskerville was facing life and is intended to create doubt about the later recordings that state differently. Obviously, at least to me, Paul Bergrin actually believed that William Baskerville faced life as a result of government paperwork and statements on the day of the arrest and then by December 4, 2003, the date of the other wiretap transcripts posted on this blog, realized that this was not the situation and knew he could deal the case for a 12-13 year sentence.

A read of the government's acrimonious letter would make the unaware believe that they'd uncovered serious evidence contradicting defense statements on the topic of the Curry wiretrap transcripts. Actually, the situation is quite the opposite and the attached transcript reveals the natural progression of a criminal case in the US courts. At first glance, the case looked real bad for Will, but a week later it was just another overzealous US prosecution.

Furthermore, Bergrin certainly did not "cherry-pick" the calls included in the earlier defense letter. The specific call transcripts clearly reveal the progress of the case and that Bergrin clearly told Curry that he could get Will a deal for 12-13 years, nine days after the initial arrest. The calls also reveal that no meeting on a street corner was ever mentioned between Bergrin and Curry as of December 4, 2003.

The government letter also seems to threaten to provide transcripts of all of the 33,000+ suppressible calls. Take note that Paul Bergrin has nothing to hide and welcomes such a move. I do realize that the defense letter dated 3 July 2013, mentioned concern about "opening the door," however, Paul Bergrin did not compose it - perhaps Mr. Lustberg's secretary did. No telling who specifically composed it, but there is no fear of any proof favoring the government's argument in the content of any of these calls.

And how exactly is it that 33,000+ calls are suppressible in the Baskerville and Curry cases anyway? In that I know what the Oscar Cordova recordings went through, I cannot even begin to imagine what agents did to result in all of those calls being suppressed. I mean really - if you read the transcripts of Oscar's trial testimony, you know that most of the exchanges recorded between him and Bergrin were unintelligible and transcribed as U/I.

And then there's the fact that it was SA Shawn Brokos that transcribed all of the Oscar tapes to begin with. There was no real transcription of those recordings as they really are unintelligible for the most part. What happens is you hear a small part of a statement by Bergrin which results in the entire conversation being taken out of context. Even the expert knew there were serious anomalies with the tapes. Yet these recordings were not suppressible.

So what exactly makes 33,000+ recordings suppressible? The government makes statements about sealing being an issue. As if Oscar Cordova's recordings were properly sealed! Once the little creep didn't hand a recording to an agent for nine days, so let's not pretend anything Oscar the criminal informant did was monitored by agents; the situation was much the opposite.

But the worst part of the government's letter is the part that expresses a lack of concern as to the truthfulness of Anthony Young's testimony and justifies it with legal citations. They say that it doesn't matter whether Young's testimony was corroborated or not and his word alone is enough to convict Paul Bergrin. A violent career criminal informant makes a statement intended to assist the government agenda and call recordings reveal that it is a false statement about a street corner meeting that never happened and the government says that this is immaterial. Is this not "victory at all costs"?

Initially, Bergrin refuses to accept that “uncorroborated accomplice testimony may constitutionally provide the exclusive basis for a criminal conviction.” United States v. DeLarosa, 450 F.2d 1057 (3d Cir. 1971). Young testified that Bergrin came to a meeting at Avon Avenue and 17th Street after Thanksgiving in 2003 and effectively instructed the Curry Organization to murder McCray. 9T2249-54. That testimony, if credited by a rational jury, alone suffices to uphold Bergrin’s convictions for the McCray murder. See United States v. Pendleton, 636 F.3d 78, 84 (3d Cir. 2011). Whether other evidence supported or contradicted Young was for the jury to decide.

I thought that the government was supposed to represent the people. According to these government actors, the truth is immaterial. Their courtroom tactics and hand-picked judge sealed Paul Bergrin's fate, or so they believe at the moment. When they managed to get USDJ William Martini recused in this case, the victory was in close reach and all they had to do was fool a naive jury in a hurry.

Of course Paul Bergrin has a response to this scathing letter of misinformation and you'll hear it soon.

Government Reliance on December 4 in Closing

The way that I read each day of the Paul Bergrin trial transcripts was to send them to my Kindle, four at a time. There are a total of 37 volumes from this second trial and it's similar to reading 37 books. I argued to publish the transcripts with the hope that some sharp attorney or law student would discover important inconsistencies in the government's theories - yes, that's plural as they have numerous major theories, all based on the Kemo murder conspiracy, that Judge Cavanaugh allowed them to present as facts to the jury.

You will find that Volume 34 has the government closing presented by AUSA Minish; it has more, but that is as far as I made it before falling asleep. What did I discover?

The extent to which the government's case hinges upon the calls corroborating Anthony Young's claims is clear. It proves the extent to which the government erroneously relied upon the calls and the extent of how that erroneous reliance tainted the proceedings. They specifically cite the November 25 and December 4th calls. It also underscores how improper it was for the government to use the Pozo 404b evidence.

Gee - USDJ William Martini was correct to begin with! Are you surprised? You shouldn't be.

So, the government retraction of the December 4 reliance in the response brief and the false apology for advancing that so-called suggestion in the letter dated 1 July 2013, is the usual spin and straw man crap. The entire presentation by the government to the Court is built on the false testimony of Anthony Young. Really it is mind-numbing when you examine the uncorroborated reliance on Young, a violent career criminal, in this case as well as others.

AUSA Minish repeatedly refers to corroboration of Anthony Young's statements throughout his closing argument; however, none of it is real. In the closing it is claimed as fact, but in the actual testimony it was clearly questionable. I could refer to any specific government claim of corroboration of Young's testimony and easily dispute it.

It's better if you read the entire Volume 34, or at least the government's entire closing argument (pages 8451-8584) to understand the reliance on the recorded calls the jury never hears and Anthony Young's false testimony, but if you're short on time, read pages 8504-8508 in Volume 34:

BERGRIN 34 03_13_13 (link removed - contact me privately for a copy)

This entire case is mind-boggling. But you'll notice that the reliance on Anthony Young's testimony of the meeting on a street corner that never happened is disseminated throughout the case and has infected the entire prosecution of Paul Bergrin.

Defense Response to December 4 Retraction

If you have read the last several posts on this blog, then you're already aware of the importance of pinning the government to the date of December 4, 2003, as the date Anthony Young claimed the Avon street meeting took place and as they have asserted affirmatively in their last brief. 

The government took 9 years to state a date and previously it was "after Thanksgiving 2003," which is about as vague as they could possibly get. Young did claim in previous testimony that it was 3 or 4 days after Thanksgiving. In yet other statements, the government stated it as after Thanksgiving and before Christmas 2003, so we are crystal clear that it was not in February.

This is what happens when a witness (i.e. violent criminal informant seeking a 'get out of jail free' pass) offers completely false testimony of events that never occurred. They're forever trying desperately to make the date fit the timeline. In this situation, it's the government that is desperate to make the pieces of the puzzle fit together and they have failed miserably.

The government suborned perjury and knowingly presented false testimony. The assertion of the date to make their point in the brief also depicts the fact that they are intentionally deceiving the Court and thwarting the system of justice by attempting to strengthen that date by emphasizing it. They are caught in a web of lies. In their response letter dated 1 July, 2013, there is also mention of a total of 3 calls on December 4th. All 3 calls are transcribed:

Curry Wiretap Transcript

Remaining December 4 Calls Transcribed

Mr. Lustberg has written a letter to the Court that best describes the situation in its entirety:

Bergrin Defense Letter 3 July 2013

How much more will the Court allow the government to get away with? Time will tell. The defense awaits the Court's ruling and only possible resolution to this serious matter. Paul Bergrin was never on Avon Street advising a group of alleged gang members in the dark on any date. As an attorney, Bergrin's idea of fighting for his clients clearly involved zealous argument in a court of law, as it should.

Anthony Young = total fail and it's obvious that Paul Bergrin never conspired with anyone to murder FBI informant Kemo Deshawn McCray. Of course this taints the entire indictment for reasons that should be obvious to you.

And then there are so many questions remaining in relation to these tens of thousands of inadmissible wiretap recordings from the Hakeem Curry case. More on that soon... with documents of course.

Oh and happy Fourth of July --- mentioning freedoms and therefore the United States Constitution (and the Fourth Amendment in this case), if I find out that these whacks have anything to do with my missing snail mail (from business and personal addresses), well, as they're aware, I always loudly denounce injustice and always demand accountability. I learned long ago that there are few actual coincidences in life.