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 seeking various forms of pretrial relief, including
severance of offenses under Federal Rule of Criminal Procedure 14.
This Opinion focuses solely on the issue of severance.*fn1
The Court finds that a joint trial of every offense in the
Second Superseding Indictment (the "SSI") poses a serious risk of
preventing the jury from making a reliable judgment as to Begrin's
guilt or innocence with respect to Counts Twelve and Thirteen, which
charge Bergrin with murdering a witness and conspiracy to commit such
murder, in violation of 18 U.S.C. § 1512(k) and 18 U.S.C. §§
1512(a)(1)(A), 1512 (a)(3)(A), and 2 (the "K.D.M. Counts"). As
explained below, this serious risk compels the Court to sever those
Counts from the rest of the SSI and order two separate trials.
On June 2, 2011, the Grand Jury in and for the District of New Jersey charged Bergrin, an attorney, with racketeering, in violation of 18 U.S.C. § 1962(c), racketeering conspiracy, in violation of 21 U.S.C. § 846, violent crimes in aid of racketeering (the "RICO Counts"), and various other federal offenses, including tax evasion, prostitution, drug crimes, witness tampering, and the aforementioned murder. The Thirty-Three-Count SSI charges these other federal offenses both as predicate acts in furtherance of the RICO Counts and in parallel substantive counts. At the heart of the SSI are the RICO conspiracy count, which charges the existence of an ongoing criminal enterprise running from November 2001 until May 21, 2009, and Count Five, which charges a conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, which allegedly existed from sometime in 2003 until May 21, 2009. As part of the manner and means of those conspiracies, the SSI charges that in late 2003 and early 2004, Bergrin and others conspired to murder -- and successfully murdered -- K.D.M., a witness against W.B., a member of a drug trafficking organization that was a customer of Bergrin's criminal organization. Also in furtherance of the conspiracies, the SSI charges that in 2008, Bergrin and others conspired to murder "Junior the Panamanian," a witness against V.E., one of Bergrin's clients. The SSI also charges the Junior murder conspiracy separately from the drug conspiracy as Counts Twenty through Twenty-Five.
Federal Rule of Criminal Procedure 14 provides that even where joinder is proper under Rule 8, "[i]f the joinder of offenses . . . appears to prejudice a defendant or the Government, the court may order separate trials of counts . . . or provide any other relief that justice requires." See also Zafiro v. United States, 506 U.S. 534, 537-38 (1993). The proper "tailoring of the relief to be granted, if any, [is left] to the district court's sound discretion," Zafiro, 506 U.S. at 538, and will not be disturbed on appeal, absent a showing that the district court abused its discretion. United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005). But the mere appearance of prejudice is insufficient to justify severance. Trial courts should only grant severance in those cases where "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment of guilt or innocence." Zafiro, 506 U.S. at 538; United States v. Silveus, 542 F.3d 993, 1005-1006 (3d Cir. 2008).
The Government seeks to try all thirty-three Counts in one joint trial. Bergrin concedes that because of the inclusion of the RICO charges joinder of all of the offenses is technically proper under Federal Rule of Criminal Procedure 8. But Bergrin still argues that severance is necessary under Rule 14 because a joint trial would unavoidably prejudice him. Specifically, Bergin argues that the jury would hear evidence relating to all thirty-three Counts, and therefore certain evidence relating to one or more counts would cause the jury to infer Bergrin's guilt as to separate and factually unrelated counts. See, e.g., United States v. Lore, 430 F.3d 190, 204-05 (3d Cir. 2005) (discussing alleged risk of prejudicial spillover evidence); United States v. Adams, 759 F.2d 1099, 1112-13 (3d Cir. 1985) (discussing alleged risk of prejudicial spillover evidence); United States v. Newmark, 2008 WL 2165093, at *4-5 (E.D. Pa. May 22, 2008) (same); United States v. James, 2008 WL 370921, at *8 (D.N.J. Feb. 11, 2008) (same). The Court must look at the specific risks of prejudice to determine if severance is proper under Rule 14, and, if so, how it will try the case.
The most substantial risk of unacceptable prejudice -- and the risk that most troubles the Court -- is the risk that the jury will find Bergrin guilty of murdering and conspiring to murder K.D.M. in late 2003 and early 2004 based on evidence of Bergrin's involvement in the conspiracy to murder Junior the Panamanian in 2008. The disparity in the likely evidence the Government will offer for both conspiracies highlights the inherent dangers. The Government proffers that it will introduce evidence, including audio recordings, showing that in 2008 Bergrin had conversations with a confidential informant -- dubbed by the Government as "the Hitman" -- during which Bergrin explicitly discussed killing Junior the Panamanian and instructed the Hitman to make the murder look like a home invasion robbery. By contrast, the Government's proffered evidence regarding the K.D.M. murder is much more circumstantial. The Government intends to prove that Bergrin said the words "no Kemo, no case" to certain other persons and that by uttering these words Bergrin specifically intended to cause those individuals to murder K.D.M. to keep him from testifying. And although the Government has a variety of evidence specifically probative of the K.D.M. Counts it intends to introduce, the evidence will likely be nowhere near as overwhelming as the evidence relating to the Junior murder.
Concerns about spillover prejudice are common in trials involving joinder of numerous offenses. But the chief tool trial courts use to mitigate this prejudice is the providing of limiting instructions. And for most cases, limiting instructions are sufficient. See, e.g., See United States v. Riley, 621 F.3d 312, 335 (3d Cir. 2010) (affirming denial of severance where district court gave limiting instructions to mitigate spillover evidence); Lore, 430 F.3d at 205 (same). Indeed, limiting instructions might be sufficient to mitigate the danger of prejudice being caused by spillover of evidence as between many of the substantive counts. For example, the Court may instruct the jury that it should not consider certain evidence relating to the prostitution counts for the purposes of determining Bergrin's guilt regarding the drug conspiracy counts. And because there is nothing specifically technical or confusing about these crimes, the Court has confidence that the jury would be able to follow such instructions. See Lore, 430 F.3d at 205.
But in considering Bergrin's guilt for the K.D.M. Counts, any limiting instructions would likely be insufficient. It would be perhaps unavoidable -- and merely human -- for the jury to use the direct, explicit evidence from the Junior murder conspiracy case to infer Bergrin's guilt of the K.D.M. Counts regardless of any limiting instruction. That is, the Court recognizes that it cannot reasonably expect jurors to compartmentalize this evidence due to the similar nature of the charges and the disparity of the level of evidence as to each. United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005) (holding that relevant inquiry is whether district court could reasonably expect jury to compartmentalize evidence). This potential prejudice is so severe that it presents a serious risk that joinder would prevent the jury from making a reliable judgment as to the K.D.M. Counts. And although he is charged with a variety of crimes, the stakes on the K.D.M. Counts are especially high for Bergrin: if a jury finds him guilty on those counts, he faces a mandatory life sentence.
And while this threat of prejudice is alone sufficient to justify severance, the inclusion of the RICO Counts compounds the problem. While it makes no final determination, the Court recognizes that the jury would likely hear instructions requiring them to parse evidence of substantive criminal actions from evidence of predicate acts. Given the particular structure and factual allegations of the SSI, this task could be arduous even without the threat of spillover evidence as between the murder conspiracy counts. But the combination of all the counts, as charged in the SSI, greatly magnifies the risk of prejudicial spillover.
This finding, barring other considerations, would compel the Court to sever the charged offenses in such a way as to prevent this prejudicial spillover of evidence from the Junior murder conspiracy to the K.D.M. murder conspiracy. Bergrin proposes that the Court try the offenses in six separate phases organized by substantive scheme: (1) the RICO counts; (2) the K.D.M. murder counts; (3) the drug and drug conspiracy counts; (4) the prostitution counts; (5) the Junior murder conspiracy counts; and (6) the tax counts. This plan, while theoretically neat and tidy, ignores the structure of the SSI, which ties all of these schemes together as part of the RICO Counts and many of them as part of the drug conspiracy. And it goes far beyond what is necessary under Rule 14; as this Court has already noted, once the K.D.M. Counts are severed, limiting instructions will mitigate any risk of prejudice caused by spillover evidence between these other counts. Again, absent the serious risks discussed above, the Government would have the right to try all of these multitudinous offenses at one time in light of the alleged racketeering ...