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).