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 judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. For the reasons stated below, the Court will DENY the motion.
Because the Court writes only for the parties, the background facts here are limited. On June 2, 2011, the Grand Jury in and for the District of New Jersey charged Bergrin, an attorney, in a thirty-three count indictment. On September 19, 2011, the Court found that a joint trial of every offense in the indictment would risk preventing the jury from making a reliable judgment as to Begrin's guilt or innocence with respect to certain counts. ECF Nos. 236, 237; see generally United States v. Bergrin, No. 09-369, 2011 WL 4407433 (D.N.J. Sept. 21, 2011).The Court ordered that Counts Twelve and Thirteen -- charging 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 -- be tried separately and first to avoid this serious risk.
Both counts revolve around the same set of factual allegations. According to the indictment, William Baskerville was arrested around November 25, 2003 for distribution of crack cocaine. Baskerville was a member of a drug organization run by Hakeem Curry (the "Curry Organization"). On the day of the arrest, Bergrin appeared as defense counsel for Baskerville at an initial proceeding and received a copy of the criminal complaint against Baskerville and an affidavit made in support of his arrest. From this information, Baskerville was able to discern that a customer, Kemo Deshawn McCray, had cooperated against him as a confidential witness in connection with his arrest. On that same day, the indictment alleges that Bergrin spoke to Curry and relayed to him the name of the witness. Several days later, on or around December 4, 2003, Bergrin met with Curry, Anthony Young, and other members of the Curry Organization. At that meeting, again, according to the indictment, Bergrin allegedly confirmed the identity of the witness and informed those present that if they did not kill McCray, Baskerville would spend the rest of his life behind bars. He also allegedly claimed that if they instead carried out the hit, then Bergrin would win Baskerville's case and Baskerville would go free. On March 2, 2004, Young, working in concert with other members of the Curry Organization, shot and killed McCray as he walked down the sidewalk. The indictment does not charge that Bergrin had any further contact with his alleged co-conspirators after the December 4th meeting and prior to McCray's murder on March 2, 2004.
The trial of Counts Twelve and Thirteen began with jury selection on October 11, 2011. At the close of the Government's case, Bergrin moved for a judgment of acquittal on both counts, pursuant to Rule 29(a). The Court reserved, as it is empowered to do under Rule 29(b). 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. Bergrin immediately renewed his motion for judgment of acquittal pursuant to Rule 29(c), and the Court reserved on the issue pending further briefing. 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 also immediately scheduled a new trial to begin in January 2012.
Before briefing on the Rule 29 motion was completed, actions taken by the parties required the Court to shift its attention. On November 30, 2011, the Government appealed what it construed to be the Court's decision to exclude certain evidence under Rule 404(b) on a retrial of the Counts Twelve and Thirteen. Then, on December 1, 2011, the Government formally requested to try the balance of the indictment on January 4, 2012, rather than wait for an outcome on the pending appeal. Unsure of how the pending appeal affected the Court's jurisdiction to conduct a retrial, but recognizing the need to keep the case moving, the Court considered the request. On December 12, 2011, Bergrin moved for further severance under Federal Rule of Criminal Procedure 14, arguing that proceeding on the remainder of the indictment would result in substantial undue prejudice.*fn1
The Court heard oral argument on the issue at a status conference on December 14, 2011, and received further briefing from the parties thereafter. On December 27, 2011, the Court ordered further severance, finding that the exact threat of undue prejudice that compelled its original severance would remain if the Government proceeded on the balance of the indictment. ECF Nos. 359, 360; see generally United States v. Bergrin, 2011 WL 6779548 (D.N.J. Dec. 27, 2011). While the severance ordered was far less than what Bergrin requested, it was sufficient to address the Court's very specific concerns regarding prejudice. Immediately thereafter, the Government appealed the Court's December 27, 2011 order, alleging that it dismissed certain counts of the indictment, excluded evidence from the next trial, and unfairly compelled the Government to try some counts of the indictment in a particular order. In light of the second appeal, this Court stayed further trial indefinitely.
The issues regarding severance and any future trial no longer immediately before it, the Court now has the opportunity to address Bergrin's pending Rule 29 motion. While the Court earlier expressed its uncertainty about how the appeals may have affected its jurisdiction, see Bergrin, 2011 WL 6779548, at *2 n.3, the Court is now satisfied that it at least retains jurisdiction over the Rule 29 motion. The Court asked the parties if they would like further argument on the motion; both parties declined.*fn2
Federal Rule of Criminal Procedure 29(a) provides that "the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Although the language requiring acquittal is mandatory, the bar to establish insufficiency of the evidence is high. The Court must "review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt." United States v. Boria, 592 F.3d 476, 480 (3d Cir. 2010) (quotations omitted). The Court "must be ever vigilant . . . not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting the court's judgment for that of the jury." United States v. Tyson, 653 F.3d 192, 199 (3d Cir. 2011) (quotations omitted). A finding of insufficiency should be reserved for those situations in which "the prosecution's failure is clear." Id. (quoting United States v. Mercado, 610 F.3d 841, 845 (3d Cir. 2010)). The Court must consider the evidence as it existed when Bergrin first made the motion.
Fed. R. Crim. P. 29(b); United States v. Brodie, 403 F.3d 123, 133-34 (3d Cir. 2005).
Bergrin argues that the evidence was insufficient in three specific respects. First, regarding Count Twelve, the conspiracy count, Bergrin argues that the evidence was insufficient to establish that he knowingly joined the conspiracy. Second, regarding Count Thirteen, the aiding and abetting count, Bergrin argues that the evidence was insufficient to establish that he knew that anyone was going to commit the murder. And third, also regarding Count Thirteen, Bergrin argues that the ...