The Government's Rule 33 Response is Themed and Outrageous

I have read the Rule 33 (motion for a new trial) response in its entirety and throughout the document and the many attachments, I recognized a theme. Of course there are also a few sub-themes, but it is the prevailing one that I will discuss at this time. At first glance, it looks good, but wait - reserve judgment until I add my thoughts, and a few screen-shots.

I would love to publish the response; however, there is far too much personal information contained within it, including but not limited to, many addresses, names, connections, telephone numbers. The Yolanda Jauregui 302s attached are outrageous and reveal a serious personality disorder, though also enlightening in a different way. She's worse than even I believed. You can always open a PACER account and download it yourself.

What is this theme I speak of?

Well, here is one sub-heading and the opening paragraph:

E. Bergrin’s Attempt to Suborn Perjury from Yolanda Jauregui and Her Brother If Anything Warrants New Charges, Not a New Trial.

Yolanda Jauregui cooperated with the Government and implicated Bergrin in drug trafficking and other crimes both in statements to law enforcement and in testimony at Trial One. Bergrin now claims that Exhibit 8A to his brief, an unsigned document that purports to exonerate him of all wrongdoing, contains Jauregui’s truthful statements. But Bergrin fails to disclose to this Court that he and his lackeys created Exhibit 8A without any input from Jauregui and offered her a bribe in an unsuccessful attempt to induce her to sign it. That scheme is set forth in a series of letters that Anna James and Brian P. McVan sent to Jauregui. Jauregui subsequently provided those letters to her counsel, who in turn provided them to the Government.

Now after reading that paragraph you may be saying to yourself, who are these people, so I will explain. Brian McVan is an old Army buddy of Paul's who is also an attorney and was trying to genuinely help Paul clear his name. I never spoke to Mr. McVan or his law partner (also his wife) because I limit contact with anyone involved in this case - I have been around long enough to know better. I do know that Paul wanted him to sign-on this case, but I heard the response was that he was too busy. Now we know why he's busy. This man's intentions were only good, admirable, and most certainly not nefarious.

As far as this "Anna James" is concerned, your guess is as good as mine, but I will give you a few clues. When I first encountered the person claiming to be Anna James, I believed that her (or him) and her pals from USP Tucson were scammers busy soliciting money and attaching themselves (like 5 to 10 of them) to Paul Bergrin. By the time she left a comment on this blog for me to contact her in email, I leaned more towards government agent, plant, saboteur.

If I were responding to the government's response, I would demand proof that the scheme claimed and done in his name was ever anything that Paul was even aware of. This James character tells Paul that Yolanda wants to tell the truth, to help him, and it all rolls from there. Anna James also uses the name Annegret Rouse and signs her many letters differently - a mix of the two names and sometimes including Esquire and other times Dr. Sometimes her writing is good and other times you might think she never finished the 6th grade. It's like different people were playing the part of Anna James. For the record, I don't believe she actually exists and I'd make the government produce her.

This is the comment she left for me on this blog:

What happened in USP Tucson?

You may want to read previous posts on this blog to understand how Paul ended-up in the CMU in Terre Haute, Indiana and silenced, which is exactly what the government wanted. When the CMU didn't accomplish the silencing mission, they used the USP Tucson problem to send him to ADX Florence. Now Paul Bergrin is truly incommunicado.

Paul wasn't in USP Tucson long before he was sent to SHU. Somehow he picked-up a group of new friends rather quickly and next thing you know, he was sent to SHU. I believe that's when some of his documents and his contact lists were stolen. Before long, various people on his contacts list were receiving snail mail from an inmate (Rouse) and also from Annegret Rouse AKA Anna James. A few of his contacts were really angry - like the producer Dan Gordon - and wanted no further contact with Paul because of the weird packets soliciting assistance in Rouse's child rape case and their fake (not registered) charity, referred to as Turtle Island Project Innocence (TIPI), which they used all over Facebook to solicit donations via PayPal.

But go back further than USP Tucson for a moment. Remember when Paul was in MDC Brooklyn after the 2nd trial? He was designated to USP Coleman 2 and supposed to be on his way in days when suddenly it was changed to USP Tucson. The only sort of explanation I ever heard was something about threats to his life. How could inmates in USP Coleman 2 know Paul was coming to threaten his life? They couldn't, and from that point forward, none of it made sense.

This is my initial response to the comment:

This is her response to me:

 

These are my responses to her that followed:

 

And:

And:

 The 2nd paragraph under the sub-heading in the response:

Beginning in about January 2015, James wrote to Jauregui and asked her to help Bergrin. James told Jauregui that Bergrin and his associates had negotiated a multimillion dollar book and movie deal with two prominent Hollywood producers, Daniel Gordon and Lee Daniels, but the deal was contingent upon them proving that Bergrin was innocent and the Government had coerced witnesses to falsely implicate him. James said, “Mr. Bergrin has an agreement with Dan Gordon which gives him power to direct all the money and decide who will assist with the production.” SA2267. James not only solicited Jauregui’s participation, but also said, “Paul Bergrin says that he still loves Ramon [Jauregui’s brother Ramon Jimenez, who also cooperated and testified against Bergrin at Trial One] and wants him to make money on the movie.” Id.

You see how it says Anna James says that Paul Bergrin says blah blah blah? So the scammers made-up statements from Paul OR it was the government to begin with, and I will go with the latter. Let's say that the government had a known informant in USP Tucson ready and willing to help sabotage anything and everything Paul did in his continuous defense in this case. It's more than a mere possibility. Oh and for the record, these packets and letters were also sent to William Baskerville, Rakeem Baskerville, and Hakeem Curry. Two of the three asked me what it was about and I simply said that I thought they were scammers and to watch out! As far as I am aware, none responded to James/Rouse.

 

The 3rd paragraph under the sub-heading in the response:

James said that a certificate (referring to what Bergrin later submitted as Exhibit 8A) “will be required from you prior to signing of contracts [that would entitle Jauregui and Ramon to collect proceeds from book and movie deal].” SA2269. James described the nature of the statements Jauregui and Ramon would have to claim were true in order to collect money from Bergrin: “the investors have read everybodies [sic] testimony including R’s [Ramon’s] and yours and are working on contracts and statements for you and him. This is paramount to the story to prove the cohersion [sic] and to prove the innocence of those parties involved. I cannot be clearer since I cannot be sure if this letter is handed to you as special mail [attorney/client privileged] or not.” SA2268. Similarly, James wrote, “Dan Gordon the producer really wants to interview Ramon, because he has a copy of his testimony and it is his opinion that the prosecutors suggested his testimony about drugs and the Kenner [Kemo] murder case. This is very important to the writers to support their position.” SA2267.

Do you see how it's more of the same James says that Paul Bergrin says blah blah blah? It is easy to believe that McVan had no clue what Anna James stated to various people and attributed to Paul Bergrin. How could he possibly know everything this saboteur was saying everywhere? He couldn't, yet the government has actually called him a part of the scheme; a scheme which I believe they made-up all by themselves.

I say that Anna James et al, is a figment of the government's imagination with the help of at least one inmate from USP Tucson. I could be wrong and they could just be a bunch of Native American scammers - the inmate Rouse and the rest that befriended Paul in USP Tucson are Native Americans. I'd demand that the government produce this person. They shouldn't be allowed to use he said /she said hearsay to make-up for their inability to actually respond to Paul's motion for a new trial - that is what they did throughout the trial! The writer of this response is a skilled manipulator.

So, you see how "Anna James" (the government in my opinion) tried to drag me into this fiasco? Well, they forgot who I am and what I suffered through with my own case long ago, but I will never forget. There's much more and I will get to it all eventually. For now suffice it to say that "Anna James" is not the first saboteur the government threw into this case.

The Overwhelming 2255 and an Order

 UPDATE on February 14, 2017:

Due to the Paul Bergrin website being hacked a week ago, I have deactivated all links herein and uploaded the original documents to this page on my website:

Bergrin 2255 Case


END of Update!

This is somewhat of an update to my last post The 2255 Now Filed: Informative including an explanation and a discussion of the omitted documents. When the great majority of inmates file a 2255 only the form is filed to start with. The instructions on this government form must be followed - read that it states Do not argue or cite law. Just state the specific facts that support your claim under each section. The actual form that Paul must fill-in again, sign, and file ASAP starts on page 14 in this link:

Bergrin 2255 27 May 2016

Now I dated it May 27 as I saw something on the docket that showed this as the filing date; however, there is no docket report available on this civil case filing. The 2255 form, the brief, and the entire Appendix was actually filed on May 25, 2016. It was not filed with CDs as I was originally told; it was filed as a hard copy and had to be scanned in.

The clerk's office retitled documents, omitted other documents, and restricted other documents - as of this minute, no one here knows which documents specifically were restricted by the clerk's office, so I am only discussing what I can see and what was filed and entered in PACER. The titles I am using are the same as the clerk's office used and in the same order.

I have no clue why the clerk's office retitled the documents and entered with the new and incorrect titles in PACER, but they did. I also have no idea why the clerk's office omitted so many documents from the Appendix and restricted others, but they did. I will assume that the government asked a friend in the clerk's office to mix it all up, and they certainly did.

The entries titled Appendix are actually the BRIEF:

Bergrin 2255 Appendix 1

Bergrin 2255 Appendix 2

Bergrin 2255 Appendix 3

The entries titled Exhibit are actually the APPENDIX:

Bergrin 2255 Exhibit 1

Bergrin 2255 Exhibit 2

Bergrin 2255 Exhibit 3

Bergrin 2255 Exhibit 4

Bergrin 2255 Exhibit 5

Bergrin 2255 Exhibit 6

Bergrin 2255 Exhibit 7

Bergrin 2255 Exhibit 8

Bergrin 2255 Exhibit 9

Bergrin 2255 Exhibit 10

Bergrin 2255 Exhibit 11

Now, on the 11 entries for the APPENDIX, Volume 1 is missing and Volume 6 is missing, You can look at the Table of Contents for Volume 1 (PDF pages 1-8 in Bergrin 2255 Exhibit 1) to see the list of documents the clerk's office chose to omit - a total of 488 pages (P1-P488).

I have most - the great majority - of documents that the clerk's office chose to omit from Paul's APPENDIX in Volume 1 and Volume 6. All of the documents included have some value in the Bergrin defense, but nothing that should be hidden from public view, so I don't understand why they were originally omitted from the docket entries in PACER.Also, they randomly throw in the first page of the TOC in front of numerous volumes.

However, I have been unable to retrieve anything from the NJDC in PACER since late Friday, June 3, 2016, about the time of the Judge's Order terminating Paul's 2255. When I say anything, I mean exactly that - I attempted to view other cases and nothing from NJDC will open in PACER.

Either 1) I have been blocked via my PACER login for NJDC cases; or 2) NJDC has been down since that time on Friday. I have not looked today, so the problem may have been fixed, but I cannot contact PACER until Monday. I will look tonight and update this post with results. To block me alone would be illegal. Two other people have told me they are having the same problem and thought PACER was down, but it is not as I had no issue retrieving cases from other District Courts. We shall find out what this is about soon.

If you see that a specific document is missing from Paul Bergrin's APPENDIX, please do inform me. I may publish some of the missing documents, but first must explore the situation from a legal perspective and then locate each.

The next issue is that Judge Linares "administratively terminated" Paul's entire 2255 filing. This could mean that it will all be deleted from PACER by the time the problem of accessing NJDC cases is fixed. This is the order made and entered in the file on Friday afternoon (June 3, 2016):

Bergrin 2255 3 June 2016 Order

To be clear, I do not blame Judge Linares for making this order. No one should be required to read all of this. That's not how a 2255 works, at least not in my experience. The inmate files the 2255 form, the government responds, the inmate responds with the brief, the government requests a list of documents if they do not already have them etc...

This is how it is normally done. But don't blame Paul Bergrin - he has been held practically incommunicado at this CMU for a long time now. They starve him in this CMU. The government has screwed with Paul Bergrin beyond anything that most people can even imagine. Apparently he wants the documents out there so the public can see what the government has done to him from the first minute this fiasco started so long ago.

This filing is so voluminous that it is close to impossible to deal with, especially the way the clerk's office mixed it all up.

UPDATE on June 6, 2016 @12:45AM

Tried PACER again and am still unable to access this case or any other case in NJDC.


UPDATE on June 6, 2016 @5PM

I was able to retrieve the last 4 available attachments from PACER and it seems that NJDC is back up. The attachments are titled Exhibit, but remember they are actually part of the APPENDIX:

Bergrin 2255 Exhibit 12

Bergrin 2255 Exhibit 13

Bergrin 2255 Exhibit 14

Bergrin 2255 Exhibit 15


UPDATE on June 29, 2016 @2:30AM

On June 20, 2016, the clerk's office received and filed the new 2255 local form from Paul Bergrin completed per the judge's instructions:

Bergrin New 2255 Letter June 20 2016

Bergrin New 2255 Form June 20 2016

I have the Motion for a New Trial filed on Monday, June 27, 2016 and the attached certifications. If you would like a copy, you will need to contact me privately and I will send to you as a PDF attachment in email. To contact me just post a comment stating your request and your email address - the comment will not be published and I will respond to the email address.

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.

Summary of Recent Events

This is just a quick summary of the events in the Paul Bergrin trial yesterday and today. I will try and post a more thorough analysis late tonight and if I'm not able, then tomorrow. Really I am in the middle of cooking dinner at the moment and after that I'll be tired. Yeah I know... TMI.

Natalie McLennan (of New York Confidential fame) testified late in the day yesterday and returned to the stand today. I suspect this is a main reason that the clerk did not post the Minutes from 6 February until today, though I am not clear on why this went unreported in mainstream news by a reporter that is present in the courtroom daily. Needless to say, I smell a rat.

If I had known of specific statements by McLennan, the chances are good that I would have a lengthy response in time for her cross-examination today. There does seem to be an argument going on as to the definition of an "escort service" and a "brothel" and that is something I will address in my next post.

We must wonder if Natalie is supposed to be some sort of substitute for Jason Itzler as bringing him in from his prison in NY is unlikely to help prosecutors. Natalie did make a plea deal in her own case. Ah well, I'll refrain from further discussion until I have a better understanding of her testimony.

I posted a document titled, "Bergrin Trial Letters 7 February 2013," that is over 6MB in size and certainly worth reading. To summarize it quickly for you:

Paul Bergrin: I demand all of the exculpatory evidence that the government has hidden or has otherwise disposed of in relation to a list of witnesses and including conversations recorded in Hudson County Corrections involving Alejandro Barraza-Castro and Yolanda Jauregui in relation to a big cocaine deal they were attempting.

Government Prosecutors: FU. You will never see the exculpatory evidence that you are demanding and we will justify anything we do as we always do. Additionally, you will need to subpoena the recordings from Hudson County Corrections as we have no interest in any because they do not further our agenda, and good luck with that. Furthermore, we never gave any of our witnesses polygraph examinations because we already know they're all a bunch of no-good liars, career criminals, and criminal informants.


On that note, I must return to cooking dinner.


EDIT 8 February 2013 @1:10am EST:

I have been reading about this major storm expected in the Northeastern US, including New Jersey, and must imagine that there will be no court today. According to the news this looks like a bad one and people are advised to stay at home. *sigh* I miss weather like that, believe it or not. It was 80+ degrees here today on Florida's Space Coast and no change is expected in the near future.

I lived in the Lake Mohawk / Sparta area for some time after my acquittal back in 2003. I never intended to see Florida again; however, my son was born and raised in a tropical climate and hated it there - Winter of 2003 was a cold time, freezing temperatures, a blizzard etc...  I was not all that fond of Sparta and preferred Hackensack, where my friend had lived previously.

Driving in snow conditions was never an issue for me as I learned to drive in Germany, where they do not salt the roads because of potential damage. I learned to drive on black ice, literally. Still, it can be dangerous if you don't know what you're doing. I wish all readers and supporters of Paul Bergrin a safe long weekend. Charge your phones and devices, just in case, and stay safe.

Motions Denied

I received an email a couple of hours ago:

Sadly, all Paul's motion were denied.  The case is not severed, all 4o4b evidence comes in, and the motion to have a pretrial hearing on government misconduct was denied. There was no oral argument. That the judge would write up his reason for denying the pretrial hearing. The judge adopted all of Judge Martini's former rulings.

I will post the documents as they are available to me. Now I can state my thoughts.

I understand that many attorneys will disagree with me and I know that Bergrin will; however, I do understand why U.S. District Judge Dennis Cavanaugh ruled as he did in each situation. I consider the denial to sever the case a good thing. Though I understand all too well how government misconduct works, when the victim witnesses to said misconduct fear having their names on sworn affidavits, not much can be done as it is too complicated to decide if it is indeed fear of retribution by the government or simple agreement with a private investigator just because he is there at the moment. Paul Bergrin is not guilty of any counts, so with or without the 404(b) evidence, he can prevail.

I do understand the reasons for wanting the counts severed and separate trials. However, if I were the defendant, there's no way I could manage multiple trials. It would be far too stressful and take too long. Throw it all together and I will sort it out piece by piece, sentence by sentence, word by word until it ends. Bergrin has already dealt with one trial that resulted in a hung jury and mistrial. How many more could he deal with? Make no mistake: This will be a long trial.

Most informants are like putty in the hands of government agents and prosecutors. They become puppets that state exactly what they're told to state. They each have something to gain, no doubt. The argument could be made that the victims / witnesses to the misconduct said anything to get the private investigator out of there. Not that I believe this in any way, shape, or form, but I do believe that such a thesis is the basis for an argument if the motion for a pretrial hearing had been granted.

In my opinion, it is better that no pretrial hearing in reference to the government misconduct was granted. I can only compare it to a situation with my co-defendant at my own trial. If only he had shut the hell up and not told prosecutors that he intended to tell the truth on the stand. The intelligent route would have been to wait until he was on the stand and simply tell the truth. I'd place a bet that they couldn't have sentenced him to 36 months in prison if he had told the court and jury exactly what agents and prosecutors did to him and the truth about our relationship. Instead he alerted prosecutors as to what he intended to say on the stand and they literally threw him out of the courthouse. The state did not call him to testify. Do you blame them?

In my opinion, the 404(b) evidence can't harm Bergrin. So much has been twisted in this case by a government with an agenda. Each statement by the criminal informant witnesses should be analyzed and gutted. When you get down to the basics, there is no evidence of the criminal acts that he has been indicted on.

When all is said and done, much of the case is over when the jury is chosen. A juror like me, my son, or even any of my friends and acquaintances that were aware of one or more acts of misconduct or even a single lie on the part of prosecutors or agents would not convict on any count. Let's face it... there are lots of people in Newark that have had such experiences or had relatives that have suffered at the hands of a bad cop or a lying prosecutor and I seriously doubt that the government will be able to eliminate each and every one in voire dire.

Look for the documents referenced herein soon.