The opinion of the court was delivered by: Madeline Cox Arleo United States Magistrate Judge
Before the Court is the request of the United States for pretrial detention of defendant Paul Bergrin ("Bergrin") and Bergrin's request for bail pending trial pursuant to 18 U.S.C. § 3142(f). This Court held a hearing on May 27 and 28, 2009, and the Court reserved ruling on the parties' applications. Set forth below are the Court's findings of fact and rulings on the pending applications.
The indictment charges defendant Bergrin with various offenses, including Racketeering and Racketeering Conspiracy (18 U.S.C. §§ 1962(c), (d)), Wire Fraud and Wire Fraud Conspiracy (18 U.S.C. §§ 1343 and 1349), Murdering a Federal Witness and Conspiracy to Murder a Federal Witness (18 U.S.C. § 1512), and Travel Act violations and Conspiracy to Commit Travel Act violations (18 U.S.C. §§ 1952 and 371). If convicted, Bergrin faces a maximum penalty of death and a mandatory minimum penalty of life imprisonment. Essentially, the indictment alleges that Bergrin used his law firm to carry out a pattern of criminal activities. Specifically, the indictment charges Bergrin with using his criminal enterprise for the purpose of manipulating the criminal justice system, by bribing, intimidating and murdering witnesses. In addition to murdering witnesses and racketeering, the indictment charges Bergrin with traveling in aid of his racketeering enterprise and committing wire fraud through his participation in fraudulent real estate transactions.
The factual basis for the murder and travel in aid of racketeering charges are set forth below.*fn1
B. Murder Plot To Kill A Witness In The William Baskerville Federal Case
Bergrin represented William Baskerville ("Baskerville") in connection with his arrest and federal charges for narcotics distribution in November 2003. (Indictment, Count 3, ¶ 5; Special Agent Michael Smith Certification, identified as Gov't. Exh. PB-1 ("Exh. PB-1"), at ¶ 10). During Baskerville's 2007 trial before the Honorable Joel E. Pisano, U.S.D.J., the government called Anthony Young ("Young") to testify as a witness. Young testified that Bergrin participated in both telephone and in person conversations with Baskerville's alleged drug associates.
During one such telephone conversation, Bergrin conveyed the identity of an informant, known as "Kemo." (Exh. PB-2 identified as an Excerpt of the Trial Transcript of Young's Testimony ("Exh. PB-2"), at 4352:2-8). Young testified about an in person meeting involving him, Bergrin and Baskerville's associates. At this meeting, they discussed, among other things, the effect that Kemo's testimony would have on the outcome of Baskerville's case. Young testified that Bergrin explained, "[i]f somebody was to testify against [Baskerville] . . . and if we didn't get rid of that person, that Will Baskerville would never see the streets again in his life." (Exh. PB-2 at 4360:11-14). Young further testified as follows:
He [Bergrin] said if there was no Kemo to testify against Will, there would be no case
He just said, if Kemo was dead, that Will Baskerville would definitely come home from jail
When he [Bergrin] left [the meeting], he said, remember what I said, no Kemo, no case. (Id. at 4361:1-2, 9-10, 24-25).
Young further testified about a subsequent meeting between him and some of Baskerville's drug associates, wherein they discussed Kemo in the context of Baskerville's criminal prosecution. Young testified that during this meeting, "[i]t was discussed that we got to start looking for this guy, to get him off the streets so that he couldn't testify against Will." (Id. at 4362:15-17). On March 2, 2004, one of Baskerville's drug associates, known as A.Y., fatally shot Kemo three times in the back of the head. (Exh. PB-1 at ¶ 11; Indictment, Count 3, ¶ 11 and Count 4, ¶ 2).
C. Conspiracy To Murder A Witness In The Vicente Esteves State Case
The indictment also charges that Bergrin was involved in the unsuccessful conspiracy to murder a witness in connection with the prosecution of Esteves, Bergrin's client and co-defendant in the instant indictment In May 2008, Esteves retained Bergrin to defend him against drug charges brought in the Superior Court of New Jersey, Monmouth County. (Exh. PB-1 at ¶ 12). After being retained, Bergrin contacted a hitman on behalf of Esteves. (Id. at Count 5, ¶ 6; Exh. PB-1 at ¶ 12). During a series of recorded conversations, Bergrin advised the hitman, who later became a confidential informant for the government, that Esteves believed certain persons were serving as cooperating witnesses for the prosecution against Esteves. (Exh. PB-1 at ¶ 12). Bergrin then told the confidential informant that both Esteves and Bergrin wanted him to locate and kill these witnesses for the prosecution. (Id.)
On August 5, 2008, Bergrin met with the confidential informant in Chicago, wherein Bergrin identified an individual referred to as "Junior the Panamanian" as a potential witness against Esteves. (Indictment, Count 5, ¶ 8b). Bergrin further explained that he would provide the confidential informant with instructions on where to locate Junior the Panamanian. (Id.) During a recorded meeting between Bergrin and the confidential informant on September 4, 2008, the following exchange took place about the murder plot of Junior the Panamanian:
CONFIDENTIAL INFORMANT: I had two concerns, the first thing is when I talked to Vinny [Esteves] on the phone everything went good. But it seemed like he was more concerned about the truck driver than the Panamanian cat, is that true or what do you think? You tell me what?
BERGRIN: No, the Panamanian guy he said he's here in New Jersey
CONFIDENTIAL INFORMANT: Okay. So I want to take care of both of them if it's possible. So I'll start with the Panamanian. (Exh. PB 1-A at 6; see Indictment, Count 5 at ¶ 8f).
During a subsequent meeting on October 2, 2008, the following conversation took place:
CONFIDENTIAL INFORMANT: You just gave me the one address, I need more on him. See how this guy looks you know what I'm saying? And I'll take care of everything else. The thing I wanted to meet you with. I met that guy Mike Lopez. He don't know shit Pauly, I just need you to set something up with him and Jason again 'cause I want to find this motherfucker. The old man's on me, I'm tired of it. This is the only job I ever had that took this long. It would have been done a long time ago Pauly.
CONFIDENTIAL INFORMANT: I need for you to set it up possibly next week.
BERGRIN: I'll hook you up with another guy named Fu
CONFIDENTIAL INFORMANT: Oh ok. Yeah set me up with him next week sometime, and we'll take it from there.
CONFIDENTIAL INFORMANT: I want to take care of this motherfucker, just kill him, take care of him, get rid of him. (Id. at 11; Indictment, Count 5 at ¶ 8h and Count 7, ¶ 2).
On December 8, 2008, Bergrin again met with the confidential informant, wherein they again discussed the murder plot against Junior the Panamanian. (Exh. PB-1 at ¶ 15). The following exchange took place:
BERGRIN: [P]ut on a ski mask and make it look like a robbery and take all the money in the house.
CONFIDENTIAL INFORMANT: But listen to me, listen to me....
BERGRIN: "No, but we can make it look like a robbery. It cannot under any ...