On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-00050-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and C. L. Miniman.
Following a jury trial on a State Grand Jury Indictment, defendant Elvin Castillo was convicted of second-degree conspiracy to commit racketeering, N.J.S.A. 2C:41-2c, N.J.S.A. 2C:2-7 and N.J.S.A. 2C:5-2 (count one); second-degree racketeering, N.J.S.A. 2C:41-2c, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:2-7 (count two); second-degree conspiracy to commit healthcare fraud and theft by deception, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:21-4.3c and N.J.S.A. 2C:20-4 (count three); second-degree healthcare fraud and theft by deception, N.J.S.A. 2C:21-4.3c and N.J.S.A. 2C:2-6 (count thirteen); and third-degree theft by deception, N.J.S.A. 2C:20-4, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:2-6 (count fourteen). After mergers, the judge sentenced defendant to a seven-year term of incarceration on count two and a consecutive six-year term on count thirteen.
Defendant was tried jointly with Anhuar Bandy, a co-defendant. Another co-defendant, Alejandro Ventura, was a fugitive at the time of trial. The remaining individual co-defendants, Cesar Caba, Victor Almonte and Raymond Cuevas, each pled guilty to various charges and testified for the State.
Then defendant entered a plea of guilty to three counts of two additional State Grand Jury Indictments, specifically: second-degree theft by deception, N.J.S.A. 2C:20-4; third-degree failure to file a state income tax return, N.J.S.A. 54:52-8; and third-degree failure to pay state income taxes with the intent to evade, N.J.S.A. 54:52-9. In exchange for the guilty plea and the payment of state taxes and penalties, the State agreed to recommend concurrent sentences aggregating six years and to dismiss the remaining charges. The judge imposed the following sentence in accordance with the terms of the agreement: a six-year term on the second-degree conviction and concurrent five-year terms on the two third-degree convictions. These sentences ran concurrent to the sentences on the jury convictions.
We need not set out the facts in detail. Suffice it to say that in November or December 1996, according to Investigator Ciro Sebasco of the Division of Criminal Justice (DCJ), an anonymous letter prompted an investigation into the purposeful staging of automobile accidents by defendant and others. The investigation focused on a number of specific chiropractic clinics, including: the Elizabeth Injury Center (the Clinic); the Amboy Injury Center; the Plainfield Injury Center; and the Mt. Prospect Spinal Center. All of these clinics were owned or controlled by Bandy. The investigation also focused on a clinic owned by defendant, the Elizabeth Spinal Center, also known as the Spinal Health Center of Elizabeth.
Nydia Martinez, who played a significant role in the conspiracy, testified for the State. She was a desk receptionist and later an office manager at the Clinic. Bandy told her that he planned to stage his own automobile accidents in order to generate more income for his clinics. He asked her if she knew any individuals who would be interested in participating as either a passenger or a driver. Martinez had met defendant when he was a patient at the Clinic. She suggested that he work for Bandy staging accidents. He agreed. According to Martinez, the other co-defendants were recruited to stage accidents and to recruit "patients" who would need "treatment" at the clinic. Martinez identified from police reports ninety accidents that she knew were staged.
In 1996 or 1997, when Parkway Insurance Company began to investigate the Clinic, Bandy told Martinez that "they had to stick together," and threatened that if she talked to investigators he would kill her and her daughter.
As part of Martinez's cooperation with investigators, she introduced Noemi Tirado, an undercover detective with the Bergen County Prosecutor's Office, to the Clinic. Tirado began working at the Clinic in August 1997 under the name "Marie Ameresano." Tirado testified extensively about several staged accidents.
At some point, Sebasco became convinced that traditional investigative techniques would not succeed in cracking this scheme. So he decided that undercover infiltration of the group was necessary. He chose George Vasquez, who began his assistance in February or March 1998. In total, Vasquez received approximately $10,000 in fees, lost wages and expenses from state investigators. Vasquez was wired with a transmitter so that law enforcement officials could hear what was going on in the car at the time of the accident. In addition, the State also began to use another undercover agent, DCJ Investigator Shannon Stewart, who posed as Vasquez's girlfriend.
State investigators also began to actively participate in staging accidents as part of their cover. There were numerous staged accidents. The trial record details the time, date and participants in each, as well as the payoff or cut of each recruiter or participant.
Based on this investigation, a search warrant was executed at Bandy's clinics and home, as well as his person. He and all other conspirators were arrested.
Neither defendant nor Bandy testified. Defendant produced the testimony of Edward Tomas, an expert in electronic surveillance for law enforcement purposes, whose videotaped deposition testimony was played for the jury. Tomas questioned the reliability of four specific recordings that had been played for the jury during trial. He opined that each was "technically problematic".
Defendant appeals from all convictions. He contends:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISMISS THE INDICTMENT BASED UPON OUTRAGEOUS GOVERNMENTAL CONDUCT.
Defendant moved before trial to dismiss the indictment because the investigators' participation in actual accidents constituted outrageous government conduct. Based on a certification describing the investigation submitted by Sebasco the judge denied the motion. The judge found that: (1) the criminal enterprise in which defendant was engaged was on-going; (2) the State had unsuccessfully attempted to investigate the enterprise using other law enforcement techniques; (3) the State investigators minimized any risk of injury by ensuring that the accidents in which they participated were not unduly dangerous, and little damage in fact resulted from them; and (4) the individuals involved in the accidents were aware that they would be participating in staged accidents. Based on the evidence, the judge found that the State had shown by "clear and convincing evidence" that its conduct was not so outrageous as to require dismissal of the indictment.
At the close of the State's case, defendant renewed his motion to dismiss the indictment, arguing that the evidence produced at trial demonstrated that the State's conduct was so outrageous that the indictment should have been dismissed. The judge denied the motion again because the State's use of traditional methods of investigation failed to crack the accident ring. Thus, the State had to resort to "unusual" and "cutting edge" techniques to do so. Moreover, no one was hurt in any of the accidents in which the State participated. In addition, curtailing the operation of the accident ring was vital given the "risks incurred by the public at large" created by the staged accidents.
After trial, defendant moved to "set aside" the jury verdict pursuant to Rule 3:20-1, in part relying on the same argument. The judge denied the motion.
Defendant alleges "due process" entrapment, the existence of which is an issue of law for the court to resolve. State v. Florez, 134 N.J. 570, 584 (1994); State v. Talbot, 71 N.J. 160, 168 (1976); State v. Grubb, 319 N.J. Super. 407, 415 (App. Div.), certif. denied, 161 N.J. 333 (1999). Such entrapment may be found to exist even if the defendant concedes his or her predisposition to commit crime. State v. Johnson, 127 N.J. 458, 467 (1992); Grubb, supra, 319 N.J. Super. at 414. The State has the burden of disproving the ...