Special Attention to the Notes

Recently someone mentioned to me that when reading motions, it's important to pay special attention to the footnotes. Often one will skip right past the footnotes, but that is usually where the explanations are found. In the recent post-trial motions filed by the Bergrin defense team and the government in this case, it is the notes that tell the story.

I refer to the latest defense brief filed on 26 June 2013, for this example of the importance of the notes:

Bergrin Defense Reply Brief 26 June 2013

I use as our example notes 1 and 2:

1. As noted in Mr. Bergrin’s opening brief, the Drug Enforcement Agency had recorded Hakeem Curry pursuant to a wiretap, but these recordings were not timely sealed, and therefore, inadmissible. See Tr (1/30/13) at 1384. Mr. Bergrin appropriately did not introduce that recording at trial, but it is nonetheless proper to consider it here, for purposes of determining whether the government’s contention is supported by any good faith basis.

Now carefully read note #2:

2. Moreover, in that December 4, 2003 conversation the evening after the bail hearing, Mr. Bergrin informs Curry that he believes he can obtain a 13- year plea deal for William Baskerville. This, of course, undermines the government’s reliance on Young’s testimony that the Curry organization only decided to kill Mr. McCray when Mr. Bergrin told them that Baskerville “was facing life in prison for that little bit of cocaine,” apparently shortly later that evening. GB 12 (citing 9T2252-52). The fact that Mr. Bergrin also tells Curry in this conversation that, “it’s an impossible case” because of the evidence against Baskerville, and Curry tells him to “fight Paul” likewise proves consistent with Mr. Bergrin’s defense that he would not have said “no Kemo, no case” in light of the strong surveillance and other evidence against Baskerville, and inconsistent with Young’s testimony that Mr. Bergrin hinged Baskerville’s freedom on preventing Kemo from testifying. 9T2253. It would be fundamentally unfair and completely inconsistent with the facts of record to permit the government to thus mischaracterize the contents of these tapes as evidence supporting Young’s account, particularly where the government knows it may do so without consequence. That is, as the government has vehemently argued, see, e.g., 12T3011, any challenge Mr. Bergrin makes regarding this evidence risks opening the door to the entire Curry wiretap.

If you do not read any other documents in this case, the one linked above should be considered most revealing. The entire brief filed by Mr. Lustberg will eventually result in a new trial for Paul Bergrin.

I do look forward to posting the transcript of that particular recorded call in the future. In the meantime, I think someone should alert William Baskerville as to the situation here - I am under the belief that the government did not turn over this recorded call to his defense in his trial.


Next: More discussion of footnotes and call recordings from the Curry and Baskerville investigations