On Appeal from the United States District Court for the District of New Jersey (D.C. No. 09-cr-369) District Judge: Hon. William J. Martini
The opinion of the court was delivered by: Jordan, Circuit Judge.
Before: FUENTES, SMITH, and JORDAN, Circuit Judges.
Paul Bergrin, a former federal prosecutor and prominent defense attorney, was indicted in the United States District Court for the District of New Jersey on numerous charges, including violations of the Racketeering Influenced and Corrupt Organizations Act ("RICO"). Reasoning that the RICO charges were inappropriate in light of "the disparate nature of the substantive crimes that . serve[d] as the racketeering predicates," the District Court dismissed them. United States v. Bergrin, 707 F. Supp. 2d 503, 511 (D.N.J. 2010). The government appealed that decision and we reversed, observing that the concerns of the District Court were "either endemic to RICO prosecutions or involve[d] the application of irrelevant legal standards." United States v. Bergrin, 650 F.3d 257, 274 (3d Cir. 2011).
After remand, the government filed a 33-count second superseding indictment (the "Indictment") charging Bergrin with RICO violations, witness tampering, participating in a cocaine-trafficking conspiracy, and tax evasion. Two of the Indictment's witness-tampering counts charge Bergrin for his role in facilitating the murder of a man named Kemo McCray ("Kemo"),*fn1 who was to have been a witness against one of Bergrin's clients.*fn2 The District Court ordered those counts (the "Kemo Murder Counts") to be severed and tried first and separately from the rest of the crimes charged. At the ensuing trial, the Court precluded the government from introducing evidence of two other witness-murder plots to prove Bergrin's intent to have Kemo murdered, and the jury was ultimately unable to reach a verdict.
As soon as the jury was dismissed, the government, in anticipation of a retrial, asked whether the District Court would adhere to its earlier evidentiary rulings. "Absolutely," was the response, though the Court noted that the government would be permitted to try to "convince [the Court] otherwise." (Joint App. at 49.) The government now appeals those evidentiary rulings and also asks us to review an additional severance order that the Court entered.*fn3 In addition, the government urges that the case be reassigned to a new judge, contending that a reasonable person would conclude that the District Court's impartiality might reasonably be questioned.
We will vacate the District Court's decision with respect to one of the challenged evidentiary rulings, and, because we will direct the Chief Judge of the District Court to reassign this matter, will leave the other issues presented to be considered afresh by the judge who will take up the case.
I. Factual Background and Procedural History
Centered around RICO counts that are substantially similar to the ones we held to be validly pleaded the last time this case was before us, see Bergrin, 650 F.3d at 261-63 (summarizing the RICO charges), the Indictment accuses Bergrin of misusing his law practice to traffic drugs, facilitate prostitution, tamper with witnesses, and evade taxes. Three different instances of witness tampering, all of which are alleged in the RICO violation charged in Count 1, are relevant to this appeal. Specifically, Bergrin is charged with instigating Kemo's murder, plotting to kill witnesses in connection with the legal defense of an individual named Vicente Esteves (the "Esteves Plot"), and plotting to kill a witness who planned to testify against a client named Richard Pozo (the "Pozo Plot").*fn4 Counts 2 through 4 of the Indictment also plead RICO violations relating to some or all of those three instances of witness tampering,*fn5 while the Indictment's remaining counts charge Bergrin with other substantive or conspiracy offenses that rest on many of the allegations set forth in the RICO counts.
The Kemo Murder Counts were the subject of the trial that ultimately led to the present appeal, and, as charged, they carry a mandatory life sentence.*fn6 See 18 U.S.C. § 1512(a)(3)(A) (tampering with a witness by killing is punishable as "provided in sections 1111 and 1112"); id. § 1512(k) ("Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy."); id. § 1111(b) ("Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life.").
At the trial on those counts, the government introduced evidence that Kemo's murder arose out of Bergrin's representation of William Baskerville. Baskerville was an associate in a drug-trafficking organization run by Hakeem Curry and was arrested on federal drug charges in November 2003 for drug sales he made to Kemo. Baskerville told Bergrin that he suspected Kemo to be the likely source of the government's evidence against him. Bergrin, in turn, telephoned Curry and told him that Kemo was the confidential witness against Baskerville.
Anthony Young, a member of Curry's organization and the government's
key witness at the trial of the Kemo Murder Counts,*fn7
was with Curry during that conversation and overheard Bergrin
say that "Kamo" was the confidential witness against Baskerville.
Young realized, however, that Bergrin was referring to Kemo. According
to Young, Bergrin met with him and other Curry organization members
approximately one week after Baskerville's arrest. At that meeting,
Bergrin told the group that "if Kemo testif[ied] against
[Baskerville], [Baskerville] w[ould] never see the streets again"
(Joint App. at 2528), but that he could "get [Baskerville] out if Kemo
d[id]n't testify" (id. at 2529). Bergrin twice reiterated "No Kemo, no
case" and emphasized that the group should not "let that kid testify
against [Baskerville]." (Id.)
Members of Curry's organization thereafter discussed how to find and kill Kemo, and, in March of 2004, Young found Kemo and shot him to death.
2. The Other Murder Plots
The government also sought to prove Kemo's murder using evidence of the Pozo Plot and the Esteves Plot, which the District Court ultimately precluded after considering evidentiary proffers.
The government's first effort to rely on those other murder plots developed pretrial when, after we ruled that the RICO counts had been wrongly dismissed and remanded the case, Bergrin filed a motion under Federal Rule of Criminal Procedure 14 to sever the Kemo Murder Counts from the Indictment.*fn8 Bergrin argued that a trial on every offense in the Indictment would be unfairly prejudicial. The government disagreed, contending that severing the Kemo Murder Counts "would be a waste of judicial resources, . would present increased danger for witnesses, and that regardless of the severance plan . all or most of the evidence of the related crimes would be admissible at . [any] of the severed trials." (Id. at 57-58.) It proffered, in that regard, that it would seek to prove the Kemo Murder Counts in part by relying on evidence of the Pozo Plot and the Esteves Plot under Federal Rule of Evidence 404(b).*fn9
Pozo, the government asserted, was a "large scale drug trafficker who distributed multi-hundred kilogram shipments of cocaine he received in New Jersey via Texas." (D.N.J. ECF no. 09-369, doc. no. 304-1, at 13.)*fn10 In February 2004, he was charged in the Western District of Texas for his role in that drug distribution scheme, and he hired Bergrin to represent him. Bergrin determined that Pozo's co-defendant, Pedro Ramos, was cooperating with the government against Pozo. He told Pozo that Ramos was an informant, asked him if he knew where Ramos lived, and told him that, if "we could get to [Ramos] and take him out, Pozo's headache (his drug charges) would go away." (D.N.J. ECF no. 09-369, doc. no. 302, at 1 (internal quotation marks omitted).) Pozo responded, "Are you nuts? I am not involved in murdering people," and later retained new counsel. (Id. (internal quotation marks omitted).)
Esteves, too, was a former client of Bergrin's who "operated a large scale drug trafficking business based in New Jersey." (D.N.J. ECF no. 09-369, doc. no. 304-1, at 23.) He was prepared to testify that, when he met with Bergrin in May 2008, after being charged in the Superior Court of New Jersey with drug trafficking, Bergrin told him that "the only way to beat the case was if [Esteves] took care of the witnesses" on a list of those Bergrin believed were cooperating with the government. (Id.) During that conversation, Bergrin also told Esteves that he "hate[d] rats and . would kill a rat himself," that "this was not the first time he ha[d] done this," and that, "if there are no witnesses, there is no case." (Id.) An informant named Oscar Cordova, whom Bergrin believed was a hitman, subsequently recorded Bergrin instructing him to kill a witness on that list. (Id.; see Joint App. at 225-28 (describing the plot).) In that conversation, Bergrin stated, "we gotta make it look like a robbery. It cannot under any circumstances look like a hit. . We have to make it look like a home invasion robbery." (D.N.J. ECF no. 09-369, doc. no. 304-5, at 3.)
In a September 21, 2011 opinion (the "First Severance Opinion") citing those proffers, the District Court decided that severance was necessary and ordered that the Kemo Murder Counts be tried first.
The Court did say, however, that it would "likely allow certain . Rule 404(b) evidence into the separate trial on the [Kemo Murder] Counts." (Joint App. at 58.) In particular, it indicated that evidence of the Pozo Plot would be admissible because that plot occurred "before or around the same time as the [Kemo] murder conspiracy." (Id. at 59.) Evidence of the Esteves Plot, by contrast, troubled the Court. The Esteves Plot was unlike the "other-crime evidence most typically admitted under Rule 404(b)," the Court said, because it pertained to acts that "happened more than four years after the [Kemo] murder conspiracy" and was therefore evidence of a "subsequent criminal act." (Id.) Although the Court acknowledged that there was no categorical "bar to subsequent act evidence," it observed that "evidence of a subsequent act" is not necessarily "permissible or relevant in the same way that evidence of a prior bad act may be." (Id.)
Nevertheless, the Court seemed to take for granted that the government would be permitted to use Bergrin's own admissions to Esteves in proving the Kemo Murder Counts. (See id. at 62 (suggesting that certain evidence pertaining to the Esteves Plot would "likely be admissible to provide the requisite background information to support" the testimony of the witnesses, including Esteves, who would testify to Bergrin's admissions).) Aside from that, however, the Court made it clear that most of the proffered evidence pertaining to the Esteves Plot would be inadmissible in a trial on the Kemo Murder Counts. The Court was particularly concerned about the tape recording of Bergrin's conversation with Cordova, evidently believing that the tape's probative value was likely to be substantially outweighed by the danger of unfair prejudice:
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 [a witness] and instructed the Hitman to make the murder look like a home invasion robbery. By contrast, the Government's proffered evidence regarding the [Kemo] 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 [Kemo] to keep him from testifying. And although the Government has a variety of evidence specifically probative of the [Kemo Murder] Counts it intends to introduce, the evidence will likely be nowhere near as overwhelming as the evidence relating to the [Esteves Plot].
[I]n considering Bergrin's guilt for the [Kemo Murder] 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 [Esteves Plot] murder conspiracy case to infer Bergrin's guilt of the [Kemo Murder] Counts regardless of any limiting instruction.
(Id. at 56.) Because Bergrin faced a life sentence on the Kemo Murder Counts, the Court found that risk to be particularly unacceptable. (See id. at 57 ("[A]lthough he is charged with a variety of crimes, the stakes on the [Kemo Murder] Counts are especially high for Bergrin: if a jury finds him guilty on those counts, he faces a mandatory life sentence.").)
Thus, based in part on its view that evidence of the other witness-murder plots would not, despite the government's argument, necessarily be admissible in a trial on the Kemo Murder Counts, the Court severed those counts from the Indictment and ordered them to be tried first.
2. The Government's Motion to Admit Rule 404(b) Evidence and the District Court's Initial Ruling
On September 29, 2011, the government moved to admit much of the Rule 404(b) evidence it had set forth in its prior proffer, asking the Court to make "preliminary, pretrial rulings on the admissibility of [the] other acts evidence" that the Court's First Severance Opinion had suggested would be admissible in a trial on the Kemo Murder Counts. (D.N.J. ECF no. 09-369, doc. no. 304-2, at 3.) Among other things, the government sought admission of Pozo's testimony about the Pozo Plot, and Esteves's testimony as to Bergrin's statements during the Esteves Plot.*fn11 At an October 7, 2011
hearing four days before jury selection was scheduled to begin, the government followed up on the status of its Rule 404(b) motion, "requesting that the Court make at least some preliminary ...