Ex-prosecutor Paul Bergrin has lost an attempt to reverse his convictions of facilitating witness murder and running a drug ring through his Newark firm.
U.S. District Judge Dennis Cavanaugh on Tuesday denied motions for acquittal and a new trial based on alleged evidentiary shortfalls and the court's refusal to indemnify defense witnesses.
Cavanaugh also turned away Bergrin's request to have jurors probed for outside influence, given their swift arrival at guilty verdicts on 23 complex counts.
Bergrin was accused of helping arrange the 2004 shooting death of FBI informant Kemo Deshawn McCray, a witness against Bergrin client William Baskerville in a drug case, and helping plan two witness murders that were not carried out. One was to be on behalf of client Richard Pozo, facing federal drug charges in Texas, and the other on behalf of client Vincent Esteves, who faced drug charges in Monmouth County.
Bergrin also was charged under the Racketeer Influenced and Corrupt Organizations Act (RICO).
During the seven-week trial, jurors heard testimony from dozens of witnesses — many of them convicted criminals who cut deals with prosecutors — and recordings of Bergrin talking to Oscar Cordova, an FBI informant masquerading as a high-ranking member of the Latin Kings street gang.
Jurors were handed the case on Thursday, March 13, and returned guilty verdicts on all counts the following Monday afternoon — about 14 hours of deliberation over three days, including only one full day.
Bergrin moved for vacatur and entry of a judgment of acquittal on counts stemming from the McCray murder and failure to report a money transaction.
Bergrin claimed that the only evidence connecting him to the McCray murder — from admitted triggerman Anthony Young, who testified that Bergrin declared "no Kemo, no case" — wasn't enough to support a conviction.
Bergrin's identification of McCray as an informant and statements to Baskerville's associates during a 2003 meeting about the likely life sentence he faced thanks to McCray's testimony also were insufficient, Bergrin said, maintaining he didn't aid or know about the planned murder.
He also sought a new trial on all counts and asked Cavanaugh to interview the jury for possible "extraneous prejudicial information" and "outside influence."
Cavanaugh was unreceptive, denying each motion.
Young's testimony by itself was enough to establish a conspiracy joined and aided by Bergrin, and it was bolstered by Esteves, who testified that Bergrin made similar "no witness, no case" statements in connection with another planned witness murder, Cavanaugh said.
Once the jury found it credible that Bergrin had communicated the necessity of McCray's murder, "Bergrin cannot assert that he was unaware of the particularities of the mode and method of the murder itself to warrant acquittal," Cavanaugh wrote.
Bergrin's "representation of and association with members of a known drug organization made it rational for the jury to infer that [he] was aware of the consequences" of his counsel, the judge added.
Even if the murder were a foregone conclusion, Bergrin was an accomplice because it wasn't carried out until after he gave his advice, Cavanaugh said.
Cavanaugh also upheld Bergrin's conviction for failing to report to the Internal Revenue Service a $20,000 cash payment in supposed drug money from Cordova, noting he believed Cordova was a dealer and accepted the money wrapped in plastic and enclosed in a duffel bag.
Bergrin's motion for a new trial based on Cavanaugh's denial of immunity to two defense witnesses also failed because he didn't sufficiently demonstrate that the testimony would be clearly exculpatory and essential, the judge said.
Cavanaugh noted that the already stringent standard for granting judicial immunity — from Government of the Virgin Islands v. Smith, 615 F.2d 964 (1980) — is being reconsidered en banc by the U.S. Court of Appeals for the Third Circuit.
Bergrin also urged Cavanaugh to poll the jury, based on the quickness of the verdict relative to the amount of evidence, as well as the panel's request to rehear some testimony and recordings.
As a potential outside influence, Bergrin noted a New York Daily News article that referred to him as a cold-blooded and ruthless racketeer, and published a side-by-side photo comparing him to mob boss John Gotti.
But Cavanaugh found "no indication that the … jury did not abide by" orders to avoid news coverage of the case. "This Court rejects the idea that, merely because the juror deliberations were not lengthy, a lack of fair consideration may be assumed," he wrote.
Cavanaugh also waved off another article, in The Star-Ledger, that featured an interview by a Bergrin juror who said that he had read about the charges years before and that the panel considered the evidence in the aggregate in reaching guilty verdicts on each of the 23 counts.
Sentencing is scheduled for Aug. 12. The murder conspiracy count carries a mandatory life sentence.
Bergrin, 57, was a U.S. Army judge advocate general, assistant Essex County prosecutor and assistant U.S. attorney, and in private practice was known for defending notable clients, including a soldier court-martialed in connection with the Abu Ghraib prisoner-abuse scandal.
Bergrin was pro se at trial. His court-appointed assisting counsel, Lawrence Lustberg of Gibbons in Newark, says Bergrin plans to appeal Cavanaugh's Tuesday rulings as well as other issues that arose during the trial.
"As a result of the Court's determination, Mr. Bergrin now faces life in prison without parole, for a crime of which he is truly innocent," Lustberg says.
"This is a grave injustice, which Mr. Bergrin and his counsel will contest so long as there is any available avenue to … do so. We look forward to a full and fair hearing in the United States Court of Appeals for the Third Circuit."
U.S. Attorney's Office spokeswoman Rebekah Carmichael says prosecutors are pleased with Cavanaugh's decision but declines further comment.