Government attorneys have been faring better since a new judge took over the case against allegedly crooked ex-prosecutor and defense attorney Paul Bergrin.
U.S. District Judge Dennis Cavanaugh will allow prosecutors to admit much of the evidence that Judge William Martini rejected in Bergrin’s first trial last November, which ended in a mistrial.
Cavanaugh also rebuffed Bergrin’s attempt to pursue prosecutorial misconduct charges.
On Sept. 12, Cavanaugh denied Bergrin’s motion to sever the murder charges against him, ordering trial on 26 of the 33 counts he is facing — everything but tax evasion charges, which the government already agreed to try separately.
Bergrin, 56, an assistant U.S. attorney from 1985 to 1990 and assistant Essex County prosecutor before that, is accused of running a crime ring through his Newark firm, the Bergrin Law Enterprise.
One set of counts alleged witness murder and conspiracy to murder Kemo Deshawn McCray, who was shot to death in 2004 before he could testify in a drug case against a Bergrin client, William Baskerville.
Other counts accused Bergrin of plotting to kill government informant Pedro Ramos, a co-defendant of another client, Richard Pozo, in a federal drug case in Texas in 2004.
Another set of counts charged Bergrin with plotting the murder of “Junior the Panamanian,” a prosecution witness in the 2008 Monmouth County Superior Court drug case against another client, Vincent Esteves.
Bergrin also was charged with racketeering under the Racketeer Influenced and Corrupt Organizations Act and Violent Crimes in Aid of Racketeering Act, as well as with drug trafficking, prostitution and tax evasion.
Martini ordered two severances — the McCray counts in September 2011, and the RICO counts last December. In between, trial proceeded on the McCray counts, and Martini excluded all evidence related to Esteves and Pozo. It ended with a hung jury.
On a motion by the U.S. Attorney’s Office, the U.S. Court of Appeals for the Third Circuit reversed Martini’s rulings and removed him from the case in June for apparent anti-prosecution bias. Cavanaugh was assigned in August.
On the same day he heard oral arguments, Sept. 12, Cavanaugh denied Bergrin’s request to sever the McCray counts and indicated he would partially grant the government’s motion to admit unrelated evidence in proving the McCray plot.
On Wednesday, Cavanaugh held admissible much of that evidence under Rule 404(b), which permits introduction of “other bad acts” unless it is to be used merely as to the defendant’s character.
He permitted evidence of the Pozo plot — Bergrin urging Pozo to have the witness “taken out” — in proving the McCray plot. Cavanaugh noted that the Third Circuit found “no sound basis” for Martini’s exclusion of that evidence.
Cavanaugh also allowed evidence of the Esteves plot in proving the McCray counts. Bergrin allegedly said that there is no case without witnesses, that he hated “rats,” and that he had ordered witness murder before. Prosecutors also say they have a recording of Bergrin plotting the intricacies of the killing — to “make it look like robbery,” in his words.
This evidence is similar to that of the McCray murder — when Bergrin allegedly said, “No Kemo, no case” — and allows the jury to evaluate his intent, Cavanaugh said.
The evidence, while potentially prejudicial to Bergrin, is not unfairly so, Cavanaugh said. He added that his position “does not give adequate consideration to the jury’s ability to compartmentalize evidence and the Court’s ability to construct appropriate limiting instructions.”
Prosecutors did not get all they asked for, though. Cavanaugh denied use of the witness-tampering evidence to prove the McCray murder, noting that Martini had ruled that way and that the Third Circuit did not address the issue.
Cavanaugh also adopted Martini’s ruling largely denying use of the witness-tampering evidence to provide context for the testimony of two former Bergrin associates who allegedly heard Bergrin admit he was responsible for the McCray murder.
Cavanaugh did, however, allow prosecutors to admit drug-trafficking evidence to help prove the McCray counts, again citing Martini’s ruling.
Cavanaugh also rejected Bergrin’s motion for a hearing on prosecutorial misconduct.
Bergrin claimed that the government coerced witnesses into lying and violated Brady v. Maryland, 373 U.S. 83 (1963), which requires prosecutors to hand over exculpatory evidence.
Bergrin relied primarily on a declaration by Bergrin’s private investigator, which, Cavanaugh said, “consists exclusively of hearsay,” including third- and fourth-hand statements.
Bergrin’s claim that prosecution witnesses were bribed and told what to say is mere speculation, he said, adding that he is free to make those arguments at trial.
“Accepting simple allegations of this type as a basis for an evidentiary hearing and a ‘colorable constitutional violation’ would essentially mean in any case the Government has a cooperating witness, it would take nothing more than pure speculation to compel an evidentiary hearing on prosecutorial misconduct,” Cavanaugh wrote. “That is not the law.”
As for the Brady claims, Bergrin’s moving papers show he already possesses the exculpatory evidence he seeks and did not suffer any prejudice, the judge said.
In a separate order entered Wednesday, Cavanaugh rescheduled the trial from Oct. 1 to Jan. 7 because Bergrin is undergoing a medical procedure.
Bergrin’s attorney, Lawrence Lustberg of Gibbons in Newark, wouldn’t disclose the nature of the procedure but says Bergrin “will be prepared to proceed on the new trial date … and is confident that he will be acquitted of all charges.”
Matthew Reilly, spokesman for the U.S. Attorney’s Office, declines comment.