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 motion for severance of offenses under Federal Rule of Criminal Procedure 14. As explained below, the Court finds that a joint trial of the remaining offenses 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 certain counts which charge Bergrin with aiding and abetting the murder of a witness and conspiring to commit such murder in furtherance of a racketeering enterprise.
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, in violation of 18 U.S.C. § 1959 (collectively, 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 many of 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 Count Two, which charges the existence of an ongoing racketeering 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, allegedly existing from sometime in 2003 until May 21, 2009. As part 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. The SSI also charges these acts separately as 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(a)(1)(A), 1512 (a)(3)(A), 1512(k) and 2 (the "K.D.M. Counts"). 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 other conspiracies as Counts Twenty through Twenty-Five, alleged violations of 18 U.S.C. §§ 371, 1952(a)(2), and 2 (the "Junior Conspiracy Counts"). As part of his various pretrial motions, Bergrin moved for severance under Rule 14.
On September 19, 2011, the Court found that a joint trial of every offense in the SSI would risk preventing the jury from making a reliable judgment as to Begrin's guilt or innocence with respect to the K.D.M. Counts. United States v. Bergrin, No. 09-369, 2011 WL 4407433, at *1 (D.N.J. Sept. 21, 2011).The Court ordered the K.D.M. Counts be tried separately and first to avoid this serious risk, id. at *8, and the trial began with jury selection on October 11, 2011. Neither party appealed the severance. At the trial, the Court admitted, over Bergrin's objections, a substantial amount of other act evidence that the Government argued was probative of Bergrin's intent and motive with respect to the K.D.M. Counts. The Government attempted to introduce even more other act evidence -- including unduly prejudicial evidence regarding the Junior murder conspiracy -- that the Court, exercising its substantial discretion under Federal Rules of Evidence 403 and 404(b), ultimately decided not to admit. The jury deliberated for over five days but was unable to reach a verdict; after consulting with Bergrin and the Government, the Court declared a mistrial on November 23, 2011. Recognizing its obligation to keep the proceedings moving expeditiously -- and realizing that Bergrin, already incarcerated for over two-and-a-half years, would continue to sit in prison awaiting trial -- the Court immediately scheduled a new trial to begin on January 4, 2012,*fn1 and requested that any motions be filed forthwith. *fn2
But on November 30, 2011, the Government appealed the Court's prior
decision to exclude certain evidence under Rule 404(b) at the first
trial to the Third Circuit Court of Appeals, apparently divesting this
Court of jurisdiction over a retrial of the K.D.M. Counts.*fn3
And on December 1, 2011, the Government formally requested to
proceed on the balance of the SSI, including all four RICO Counts.
On December 12, 2011, Bergrin moved for further severance under Rule 14 arguing that the serious risk of undue prejudice remained in the Government's proposed second trial. While maintaining that he would prefer the Court stay proceedings pending the appeal and then conduct a retrial of the K.D.M. Counts, Bergrin argues that if the Court proceeds in the interim, it must order an additional severance of offenses to address the undue prejudice the Court recognized in its prior severance opinion.
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, 1005-06 (3d Cir. 2008). As this Court previously held, spillover prejudice -- in certain circumstances -- may pose such a risk. See Bergrin, 2011 WL 4407433, at *2. See also 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, No. 06-447-1, 2008 WL 2165093, at *4-5 (E.D. Pa. May 22, 2008) (same); United States v. James, No. 07-578, 2008 WL 370921, at *8 (D.N.J. Feb. 11, 2008) (same).
B.The Risk of Prejudice and the Court's Prior Decision
The Court begins from its original premise that trying Bergrin for his alleged involvement in the K.D.M. murder conspiracy with extensive evidence from the Junior murder conspiracy -- evidence that would not otherwise be admissible in a trial on the K.D.M. Counts alone -- would be fundamentally unfair and improper.
The Court explained the basis for that premise in detail in its ruling on Bergrin's prior motion for severance:
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 ...