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.