The opinion of the court was delivered by: William J. Martini, U.S.D.J.
This matter comes before the Court on Defendant Paul Bergrin's Second Omnibus Motion. As discussed in more detail below, the Court grants the motion in part, denies it in part, and reserves on the remainder.
Because this Court writes this Opinion for the benefit of the parties only, it need not and will not describe the factual and procedural background of this case at much length. On June 2, 2011, the Grand Jury in and for the District of New Jersey charged Bergrin, an attorney, in the Thirty-Three-Count Second Superseding Indictment (the "SSI") with racketeering, in violation of 18 U.S.C. § 1962(c), racketeering conspiracy, in violation of 21 U.S.C. § 846, and various other federal offenses, including tax evasion, running a prostitution business, drug crimes, witness tampering, and conspiracy to murder a federal witness (the "K.D.M. Murder"). Bergrin moves pretrial for various form of relief, which the Court will now address issue-by-issue.*fn1
A.Dismissal of Count Twenty-Six of the SSI
Bergrin moves to dismiss Count Twenty-Six under Federal Rule of Criminal Procedure 12(b)(3)(B). In analyzing a motion to dismiss under Rule 12, 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). In assessing an indictment's sufficiency, the Court looks to whether the charging document: (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution. United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007).
Count Twenty-Six charges Bergrin with causing or attempting to cause a non-financial business -- in this case, his law firm -- to fail to file certain tax reports with the intent of evading the reporting requirements. After charging the relevant facts, the SSI indicates the specific statutes Bergrin allegedly violated as "Title 31, United States Code, Section 5324(b) and Title 18, United States Code, Section 2."
31 U.S.C. § 5324(b) is the substantive criminal statute; 18 U.S.C. § 2 creates aiding and abetting liability.
Bergrin does not dispute that the SSI sufficiently alleges the substantive crime. He instead argues that because Count Twenty-Six charges him with violating Section 5324(b) "and" Section 2, and the factual allegations supporting the charge name no other actors or defendants, the Count necessarily charges Bergrin only with aiding and abetting himself in committing a crime. Bergrin further argues that not only is this an impossible act, it is not supported by the factual allegations of the Count, which do not contain a necessary element of aiding and abetting liability -- namely, that another individual acted as the principal in committing the crime. See United States v. Mercado, 610 F.3d 841, 846 (3d Cir. 2010) (discussing elements of aiding and abetting including first element: "that another committed a substantive offense").
But aiding and abetting is an alternative theory of liability and is distinct from the charging of specific statutory crimes. See, e.g., United States v. Sutcliffe, 505 F.3d 944, 959-60 (9th Cir. 2007).The fact that Count Twenty-Six also charges a violation of Section 2 does not bear on whether the Count sufficiently alleges a substantive criminal violation but merely serves to advise the accused that a conviction may be had even if the evidence tends to show that the accused was not the principle actor. See United States v. Caruso, 948 F. Supp. 382, 394-95 (D.N.J. 1996).Nor does the absence of specific facts in the Count explicating aiding and abetting liability necessarily prevent the Government from obtaining a conviction under that alternate theory. See United States v. Somers, 950 F.2d 1279, 1283 (7th Cir. 1991).In fact, if the SSI did not explicitly include aiding and abetting liability, this Court might still be required to read the alternative theory of liability into each and every count. See United States v. Forsythe, 560 F. 2d 1127, 1136 n. 15 (3d Cir. 1977) ("Nor is it dispositive of the substantive charge, since the indictment need not specifically charge aiding and abetting in order to support a conviction for aiding and abetting. The indictment must be read as if 18 U.S.C. § 2 were embodied in each count.").
For the foregoing reasons, the Court will deny Bergrin's motion to dismiss Count Twenty-Six.
B.Alleged Violations of Massiah v. United States
Bergrin asks this Court to suppress certain statements that Bergrin made to government agents regarding the K.D.M. Murder, as well as any information derived from these statements, under Massiah v. United States, 377 U.S. 201 (1964).In Massiah,the Supreme Court held that the deliberate elicitation of incriminating statements by a government agent outside the presence of a charged defendant's attorney violates the defendant's Sixth Amendment rights. In order to show a violation under Massiah,the defendant must prove that: (1) the right to counsel attached; (2) an informant was acting as government agent; ...