The opinion of the court was delivered by: William J. Martini, U.S.D.J.
On November 10, 2009, a federal grand jury in Newark returned a thirty-nine count Superseding Indictment (hereinafter "Indictment" or "S.I.") against Defendants Paul Bergrin, Yolanda Jauregui, Thomas Moran, Alejandro Barraza-Castro ("Alejandro"), Vicente Esteves, Alonso Barraza-Castro ("Alonso"), Jose Jimenez, and Sundiata Koontz. This Indictment charges an array of criminal activity, ranging from conspiracy to murder a government witness and witness bribery to mortgage fraud and drug conspiracy, with a prostitution charge in between. These varied charges are presented by the government as schemes,*fn1 joined together under the umbrella of RICO, the Racketeering Influenced and Corrupt Organizations statute. As will be discussed herein,the Indictment alleges that Defendant Bergrin led "The Bergrin Law Enterprise" and committed the aforementioned acts in conjunction with his RICO co-defendants Jauregui, Moran, Alejandro, and Esteves*fn2 (collectively the "RICO Defendants"), as well as those remaining defendants who each are charged only in the substantive non-RICO counts.
This matter presently comes before the Court on several pretrial motions related to the RICO counts. The first motion, brought by Defendants Bergrin, Jauregui, Moran, and Alejandro, seeks dismissal of the substantive Racketeering violation alleged in Count One of the Superseding Indictment for failure to state an offense. The next two related motions seek dismissal of the Racketeering Conspiracy and Violent Crimes in Aid of Racketeering ("VICAR") counts on the same basis.
I. Motion To Dismiss Count One -- Racketeering
Count One, the substantive RICO count, charges Defendants Bergrin, Jauregui, Moran, and Alejandro Barraza-Castro with a Section 1962(c) violation. In order to plead a Section 1962(c) violation, the Government must set forth the following four elements:
(1) the existence of an enterprise affecting interstate commerce; (2) that the defendant was employed by or associated with the enterprise; (3) that the defendant participated in, either directly or indirectly, in the conduct or the affairs of the enterprise; and (4) that he or she participated through a pattern of racketeering activity. United States v. Irizarry, 341 F.2d 273, 285 (3d Cir. 2003).
The RICO Defendants move to dismiss Count One under Federal Rule of Criminal Procedure 12(b)(3) for failure to state an offense. Specifically, they argue that the Indictment fails to allege both a "pattern of racketeering activity" and an "enterprise." Before addressing each of these arguments, the Court first will describe the racketeering acts alleged in the Indictment.
A. Facts as Alleged in Count One
Defendant Bergrin was an attorney with a law office in Newark, New Jersey. According to the Indictment, Bergrin was the leader of "The Bergrin Law Enterprise," which in addition to Bergrin, included the following as its members and associates: Yolanda Jauregui, Thomas Moran, Alejandro Barraza-Castro, Vicente Esteves, the Law Office of Paul W. Bergrin, P.C., P.B. & V, P.A.,*fn3 Premium Realty Investment Corp., Inc., and Isabella‟s International Restaurant, Inc. (S.I. ¶ 24.) Among the purposes and objectives alleged for this enterprise were: providing the enterprise and its leaders, members and associates with an expanding base of clients for legal and illegal services; generating, preserving and protecting the enterprise‟s profits and client base through commission of the predicate acts; protecting and preserving Paul Bergrin‟s status as a licensed attorney; enhancing defendant Paul Bergrin‟s reputation as a criminal defense attorney; and, promoting and enriching the enterprise and its members, while concealing the enterprise‟s criminal activities. (S.I. ¶ 4.)
As the alleged leader of "The Bergrin Law Enterprise," the Indictment states that Bergrin, with his RICO co-defendants, "use[d] the special privileges granted to licensed attorneys to engage in and assist Client Criminals to engage in criminal activities." (S.I. ¶ 6.) These criminal activities are broken down by scheme in the Racketeering charge as follows: o Conspiracy to Murder Kemo DeShawn McCray o Conspiracy to Murder Witnesses Against Vicente Esteves o Bribery of a Witness Against Ramon Jauregui o Drug Conspiracy o Operating a Prostitution Business o Mortgage and Tax Fraud These varied schemes spanned approximately six years, from late 2003 through May 2009.
1. Conspiracy to Murder Kemo Deshawn McCray (Racketeering Act One, Counts Four and Five)*fn4
The first scheme alleged is the conspiracy to murder Kemo Deshawn McCray, a government cooperating witness set to testify against one of Defendant Bergrin‟s clients, William Baskerville. After Bergrin entered Baskerville‟s case on November 25, 2003, he purportedly met with Baskerville‟s drug trafficking associates and informed them that McCray was a cooperator. During this meeting, Defendant Bergrin also allegedly informed these associates that the murder of McCray would result in Baskerville going free. On March 2, 2004, Kemo Deshawn McCray was murdered.
2. Conspiracy to Murder Witnesses Against Vicente Esteves (Racketeering Acts Two and Three, Counts Six through Eleven)
Four years later, Defendant Vicente Esteves retained Defendant Bergrin to represent him on pending drug charges in Monmouth County, New Jersey. The Indictment alleges that Esteves sought not only legal services from Defendant Bergrin; Esteves also purportedly hired "The Bergrin Law Enterprise" to plan the murder of those government witnesses set to appear against him in this Monmouth County case. In connection with this plot to kill the Monmouth County witnesses (also referred to hereinafter as "the Monmouth County scheme"), Defendants Bergrin, Moran, and Esteves allegedly solicited a "hitman." This hitman, unbeknownst to them, was a government informant.
The Government charges the Monmouth County scheme as a Travel Act conspiracy under 18 U.S.C. § 371 and sets forth several acts in furtherance stemming from the hitman‟s interactions with Bergrin, Moran, Esteves, and Jauregui. For example, during the summer of 2008, Bergrin allegedly met with the hitman several times, and Moran smuggled a cellphone into the Monmouth County Jail for Esteves to be used for calls to the hitman. In December 2008, these acts culminated in a conversation during which Bergrin purportedly told the hitman to murder a witness but to make it look like a home invasion robbery. No murder occurred.
3. Bribery of a Witness Against Ramon Jauregui (Racketeering Act Four, Counts Thirteen through Fifteen)
The third scheme alleged involves a criminal case against Ramon Jauregui, Yolanda Jauregui‟s brother. When Ramon was charged with robbery in Essex County, New Jersey, the Indictment alleges that Defendants Bergrin, Yolanda Jauregui, and Moran bribed a witness to testify falsely. Specifically, the Indictment states that these defendants paid or assisted in paying this witness $3000 to falsely exculpate Ramon Jauregui. This conspiracy began on or about January 5, 2009 and ended on February 19, 2009.
4. Drug Conspiracy (Racketeering Acts Five through Seven, Counts Sixteen through Twenty)
The fourth scheme involves a cocaine trafficking business allegedly operated by Defendants Bergrin, Jauregui, and Alejandro from January 2005 through May 21, 2009 out of a restaurant in Newark, New Jersey. Isabella‟s International Restaurant purportedly served as a "stash house" used to store "multi-kilogram quantities of cocaine and the proceeds of cocaine sales." (S.I. ¶ 18). In connection with the affairs of this stash house, the Indictment sets forth several racketeering acts, including conspiracy to distribute (against Defendants Bergrin, Jauregui, and Alejandro) and possession with intent to distribute five kilograms or more of cocaine (against Alejandro only).*fn5 In addition, the Indictment also charges Alejandro with distributing 500 grams or more of cocaine on December 8, 2008.
5. Operating a Prostitution Business (Racketeering Act Eight, Counts Twenty-One through Twenty-Three)
From July 24, 2004 through March 2, 2005, the Indictment alleges that Defendant Bergrin assisted a client (referred to as "J.I.") with the running of J.I.‟s prostitution business in New York state. Bergrin mailed letters to the New Jersey Parole Board, falsely stating that J.I. was employed by Bergrin‟s law office. These letters helped J.I. to evade his New Jersey parole restrictions and operate the prostitution business out of New York. In addition to writing letters, Bergrin provided J.I. with photocopies of checks drawn from the account of Premium Realty Investment Corp., an entity allegedly owned by Bergrin. These checks were meant to substantiate J.I.‟s false claims to the Parole Board regarding his employment with Bergrin.
When J.I. was arrested in New York state, the Indictment states that Bergrin managed J.I.‟s prostitution business while he was incarcerated. At some point, Bergrin also was arrested in New York and subsequently charged with a prostitution-related offense.*fn6
6. Mortgage and Tax Fraud (Racketeering Acts Ten through Thirteen, Counts Twenty-Four through Thirty-Six)
Finally, the sixth alleged scheme involves a mortgage fraud conspiracy, in which RICO Defendants Bergrin and Jauregui purportedly sold real estate*fn7 to individuals they knew had fraudulently obtained mortgage loans to pay for the properties.*fn8 Bergrin and other attorneys from his law office allegedly served as closing attorneys on these transactions. This scheme began in May 2005 and continued through the beginning of April 2006.
B. Fed. R. Crim. P. 12(b)(3) Standard
A motion to dismiss under Federal Rule of Criminal Procedure 12(b)(3)(B) tests the sufficiency of the Indictment. In analyzing a motion to dismiss, the Court must accept as true the facts as alleged and determine if those facts constitute a violation of the law under which the defendant is charged. United States v. Zauber, 857 F.2d 137, 144 (3d Cir. 1988). Further, the Court is limited to the four corners of the Indictment itself, as the sole function of a motion to dismiss is to test the ...