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