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State v. Bergrin

United States District Court, Third Circuit

August 22, 2013

PAUL W. BERGRIN, Defendant.


DENNIS M. CAVANAUGH, District Judge.

This matter comes before the Court upon motion for reconsideration of this Court's Opinion and Order filed on July 23, 2013 ("July 23 Opinion") by pro se Defendant Paul Bergrin ("Bergrin" or "Defendant"). (Def.'s Mot. for Reconsideration, Aug. 8, 2013, ECF No. 569). After considering the submissions of the parties, arid based upon the following, it is the finding of this Court that Bergrin's motion for reconsideration is denied.


The facts in this matter are well-known to the parties and will not be recited in length herein. On March 18, 2013, the jury in this matter returned a unanimous verdict of guilty on all counts against Bergrin contained in the Second Superseding Indictment. Subsequently, Bergrin filed an omnibus post-trial motion requesting that this Court: (1) vacate the verdict and enter a judgment of acquittal as to Counts Twelve, Thirteen, One (Racketeering Act Four), and Three of the Second Superseding Indictment pursuant to Federal Rule of Criminal Procedure 29(c); (2) vacate the verdict and enter a judgment of acquittal as to Counts Twenty-Six and One (Racketeering Act Eight) pursuant to Rule 29(c); (3) grant a new trial on all counts pursuant to Federal Rule of Criminal Procedure 33; and (4) interview the members of the jury, pursuant to Federal Rule of Evidence 606(b) and Local Criminal Rule 24.1(g) regarding whether any or all of the jurors were exposed to extraneous prejudicial information or outside influence prior to the delivery of the verdict. (Def. Post-Trial Mot. Br., May 16, 2013, ECF No. 555-1). Ibis Court denied Bergrin's post-trial motion. (Opinion and Order. July 23, 2013, ECF Nos. 565, 566). Bergrin then filed this motion for reconsideration. (Def.'s Mot. for Reconsideration ("Def.'s Mot. Br."), Aug. 8, 2013, ECF No. 569).


Motions for reconsideration in this District are governed by Local Criminal Rule 1.1 which provides that Local Civil Rule 7.1(i) "is applicable to criminal cases tried in the District of New Jersey." L. Crim. R. 1.1; see United States v. Vargas, Mag No. 13-2044, 2013 WL 3223419, at * 3 (D.N.J. June 25, 2013); United States v. Curry, Crim. No. 04-280, 2006 WL 1320083, at *1 (D.N.J. May 12, 2006); see generally United States v. Abdullahu, Mag. No. 07-2050, 2007 WL 181610 (D.N.J. June 21, 2007). Local Rule 7.1(i) provides that a party may file a motion for reconsideration "within ten (10) business days after entry of the Order or Judgment on the original motion by the Judge or Magistrate Judge." L. Civ. R. 7.1(i). A motion pursuant to Local Rule 7.1(i) may be granted only if: (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. Database Am., Inc. v. Bellsouth Adver. & Pub. Corp. , 825 F.Supp. 1216, 1220 (D.N.J. 1993); see also North River Ins. Co. v. CIGNA Reinsurance Co. , 52 F.3d 1194, 1218 (3d Cir. 1995). Such relief is "an extraordinary remedy" that is to be granted "very sparingly." See NL Indus. Inc. v. Commercial Union Ins. Co. , 935 F.Supp. 513, 516 (D.N.J. 1996).

Local Rule 7.1(i) does not contemplate a recapitulation of arguments considered by the Court before rendering its original decision. See Bermingham v. Sony Corp. of Am., Inc. , 820 F.Supp. 834, 856 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). It is improper on a motion for reconsideration to "ask the court to rethink what it ha[s] already thought through - rightly or wrongly." Oritani Say. & Loan Ass'n v. Fidelity & Deposit Co. , 744 F.Supp. 1311, 1314 (D.N.J. 1990)).


Bergrin argues that: (1) the Government sponsored false testimony from Anthony Young and mislead the Court; (2) this Court should recuse itself because an objective observer could reasonably question this Court's impartiality; (3) the Government purposely delayed indicting Bergrin to gain an unfair tactical advantage; and (4) the Government impermissibly intercepted Bergrin's jailhouse communications. (Def.'s Mot. Br.1-10).

A. Bergrin's Request for Recusal

Bergrin asserts that certain of this Court's personal and professional relationships would cause a reasonable person to conclude that this Court's impartiality might reasonably be questioned. (Def.'s Mot. Br. 4). The Government contends that recusal is not proper and, even assuming the nature of the relationships were to be as Bergrin characterizes them, they do not impact the Court's ability to remain impartial. (Gov't Opp'n Br. 1).

A determination regarding recusal is within the sound discretion of the trial court judge. United States v. Wilensky , 757 F.2d 594, 599-600 (3d Cir.1985). The circumstances in which a judge should recuse himself are set forth in two federal statutes. Section 455(a) of Title 28 of the United States Code provides, in pertinent part, that: [a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably he questioned." 28 U.S.C. § 455(a). "The lest for recusal under § 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned." Allen v. Parkland Seh. Dist. , 230 Fed.Appx. 189, 193 (3d Cir. 2007) ( In re Kensington , 353 F.3d 211, 220 (3d Cir. 2003)).

Motions for recusal are also governed by 28 U.S.C. § 144. Recusal must occur under 28 U.S.C. § 144 "[w]henever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party." 28 U.S.C. § 144. A "substantial burden is imposed on the party filing an affidavit of prejudice to demonstrate that the judge is not impartial." Frolow Wilson Sporting Goods Co., Civ. No. 05-04813, 2011 WL 1337513, at *2 (D.N.J. Apr. 7, 2011) (citation omitted). "In satisfying this burden, the movant must make a three-fold showing: (1) the facts must be material and stated with particularity; (2) the facts must be such that, if true they would convince a reasonable man that a bias exists; (3) the facts must show the bias is personal, as opposed to judicial, in nature." Id . (citing United States v. Thompson , 483 F.2d 527, 528 (3d Cir. 1973)).

Preliminarily, Bergrin's request for recusal is not timely. A motion for recusal is untimely if a party is aware of the grounds supporting removal yet fails to act until the judge issues an adverse ruling. In re Kensington Int'l Ltd. , 368 F.3d 289, 314-15 (3d Cir. 2004). Bergrin initiated the instant request for recusal subsequent to both an adverse jury verdict and an adverse decision on his post-trial motions. Although Bergrin asserts that the alleged relationships underlying his recusal motion "apparently were public knowledge[, ]" he claims he was not aware of them until after trial. (Def.'s Mot. Br. 5). However, Bergrin's submission of a certification by private investigator Louis Stevens in support of pretrial motions nearly a year ago belies hat assertion, as the certification contained information ...

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