Allegations in Federal Case Against Former Defense Lawyer, AUSA, Offer Extreme Examples of Abuse of Position
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
“No witness, no case” was the motto of former U.S. Attorney and notorious criminal defense attorney Paul Bergrin.
We’ve posted a number of blogs about corrupt prosecutors and bad lawyers, but none quite like the allegations levied against Mr. Bergrin. Reportedly the son of a Brooklyn cop, Bergrin became a standout state and federal prosecutor and a legendary criminal defense attorney by being brash, tenacious, and possessing the “killer instinct.” Literally. “No witness, no case.” In a 2011 article in the New York Times Magazine, Mark Jacobson opened the piece with a description of a typical interview between Bergrin and his “gangsta” clients:
Clay D. has a long history of violent encounters with enemies “in and around Newark, New Jersey.” He told Jacobson that “someone got killed” and “they were trying to put it on me.” Charged with first degree murder, Clay D. told Jacobson “you can’t f ..k with that, so I got Paul.” Clay D. had been in Bergrin office just two minutes before the attorney looked him the eyes and told him there was only one witness who could hurt him. ”Okay, what are we going to do about this person”, Bergrin asked the Clay. “She’s a user, right? Why don’t we just give her a hot shot? Just stick her.”
Clay D. was pleased with the advice. “That’s why I needed Paul,” Clay told Jacobson. “I can’t have some bullshit lawyer in suspenders and I’m supposed to say thanks because he got my sentence down to twenty years. I’m paying top dollar, and I demand brilliance. Someone who will consider all the options. I don’t want no loser. I want a winner. Paul Bergrin was a winner. Let me tell you, whatever happens to him, there ain’t ever gonna be no other lawyer like Paul Bergrin.”
Before his 2009 arrest Bergrin had always walked a legal tightrope. He was designated “incorrigible” and sent to a reform school as a teenager. He joined the military at age 17. He served in the Army’s 75th Ranger Regiment as a Major. Sometime after his release from the service, Bergrin earned a law degree from Nova Southeastern Law School in Fort Lauderdale, Florida, and by the early 1980s, he had gathered the attention of the Essex County District Attorney’s office where, as Jacobson said, “he forged a reputation as a square-jawed inquisitor of the local criminal class.” By 1987 Bergrin had worked his way up the prosecutorial food chain as a prosecutor in the Newark United States Attorney’s office. He worked with, and under, two prestigious prosecutors: Supreme Court Justice Samuel Alito and former Homeland Security chief Michael Chertoff.
But Bergrin’s career as a high-flying Federal prosecutor crashed in flames just a few years later. The U.S. Attorney’s Office in 1989 was prosecuting a corruption case against two investigators in the Essex County district attorney’s office. Jacobson said the two defendants “were widely regarded as filthy,” but that didn’t stop AUSA Bergrin from taking the witness stand as a “character witness” for one of the defendants with whom he had worked while in the Essex County prosecutor’s office. Bergrin testified that he knew his previous colleague to have the reputation for telling truth and integrity. A judge described the unusual episode to Jacobson: “Here you have someone who is working for the government testifying against the government. This is what might be called a questionable career move.” The episode effectively ended Bergrin federal career. He was not fired. But the U.S. Attorney took away all his cases, leaving him with an empty office. He finally quit.
But the Feds didn’t forget. They kept Bergrin in their sights for the ensuing two decades until on November 10, 2009 a Federal grand jury returned a 39-count indictment charging him and five other individuals associated with the Bergrin Law Enterprise (“BLE”) and four corporations—the law firm Pope, Bergrin & Verdesco, the law office of Paul W. Bergrin, Premium Realty Investment Corp., and Isabella’s International Restaurant, Inc.—with a laundry list of RICO-related violations. The indictment alleged the Bergrin was the leader of the BLE’s six criminal schemes (“racketeering acts” described by the Third Circuit Court of Appeals on April 12, 2011 as follows:
“1. Racketeering Act One: In 2003 and 2004, Bergrin, as a partner in PB&V, represented a client with the initials ‘W.B.,’ who was being held on federal drug trafficking charges. W.B. informed Bergrin during a private attorney-client visit that ‘K.D.M.’ was the government’s key witness against him. Bergrin relayed that information to W.B.’s drug associates along with his own message that if they killed K.D.M., he could assure that W.B. escaped prison, but if they did not, W.B. would spend the rest of his life in jail. Those associates subsequently murdered K.D.M.
“2. Racketeering Acts Two and Three: In 2008 and 2009, Bergrin, through his law firm, Law Office of Paul W. Bergrin, PC, represented Esteves, who was charged with federal drug crimes in Monmouth County, New Jersey. ‘Under the guise of providing legitimate attorney services,’ Enterprise members Bergrin, Jauregui, and Moran assisted Esteves in arranging to have a witness against him murdered. Members of the BLE solicited a hitman to locate and kill the witness, traveled to meetings with the hitman, offered to assist the hitman in obtaining a gun, instructed the hitman on how to commit the murder, and then received $20,000 in cash for their services to Esteves.
“3. Racketeering Act Four: In 2009, Bergrin, through his law firm, Law Office of Paul W. Bergrin, PC, represented a client with the initials ‘R.J.,’ who was charged with robbing ‘M.P.’ in Essex County, New Jersey. Enterprise members Bergrin, Jauregui, and Moran bribed and assisted in bribing M.P., who was to testify for the government against R.J. They did so by causing a third party, ‘M.C.,’ to participate in telephone conversations with M.P., after which they paid M.P. $3,000 in cash to change his/her testimony.
“4. Racketeering Acts Five, Six, and Seven: From 2005 to 2009, Bergrin, Jauregui, and Barraza-Castro—along with several non-Enterprise members—trafficked in kilogram quantities of cocaine ‘[u]nder the guise of conducting legitimate business’ at Law Office of Paul W. Bergrin, PC, PB&V, Premium Realty Investment Corp., Inc, and Isabella’s International Restaurant, Inc. As part of the operation, a “stash house” was maintained at Isabella’s in Newark.
“5. Racketeering Acts Eight and Nine: In 2004 and 2005, Bergrin, through his law firms, Law Office of Paul W. Bergrin, PC and PB&V, represented a client with the initials ‘J.I.,’ who ran a prostitution business in New York. Bergrin helped J.I. evade New Jersey Parole Board restrictions by telling the Board that J.I. worked at the Law Office of Paul W. Bergrin, PC. Bergrin also supported that claim with false paychecks drawn on Premium Realty Investment Corp., Inc. accounts. When J.I. was arrested again, Bergrin took over the prostitution business, but he too was caught and charged in New York. Following Bergrin’s arrest for his role in the business, Jauregui solicited M.C.—i.e., the “third party” in Scheme Three—to murder a witness against Bergrin. Jauregui then supplied M.C. with information about the witness and paid him/her $10,000.
“6. Racketeering Acts Ten, Eleven, Twelve, and Thirteen: In 2005 and 2006, Bergrin and Jauregui committed and assisted others in committing wire fraud relating to the sale of real estate properties to individuals they knew to have fraudulently obtained mortgage loans. They did so ‘[u]nder the guise of conducting [the] legitimate business’ of the Law Office of Paul W. Bergrin, PC and Premium Realty Investment Corp., Inc. At least one of the properties was owned by Bergrin and Jauregui through Premium Realty. Bergrin and other attorneys from the Law Office of Paul W. Bergrin acted as closing attorneys on the transactions.”
We’ve encountered some truly bad apples in our following of prosecutors and defense lawyers who “crossed the line,” but if the Government’s allegations are true, Paul Bergrin is in a league of his own. Take, for example, the Kemo Deshawn McCray murder which occurred in March 2004. He was crossing a street in Newark when he was shot three times in the head. His offense: he had become a federal informant who posed a prison threat to William Baskerville. A lieutenant for the dangerous and fearsome Hakeem Curry (who was the drug kingpin in Newark), Baskerville retained Bergrin after he was busted in a “buy-and-bust” drug deal involving Kemo. In a jailhouse meeting, Baskerville told Bergrin that McCray had snitched him out. That made Baskerville’s conviction almost certain.
Bergrin conveyed this information to Curry and several of his drug enforcers a week later in his law office. Bergrin reportedly told the group that “if Kemo testif[ied] against [Baskerville], [Baskerville] would never see the streets again.” He told the group several times that he could walk Baskerville if Kemo did not testify. He reiterated his motto: “No Kemo, no case,” telling the group that they should not “let that kid testify against [Baskerville].” The Government charged that Bergrin even offered one of the drug dealers, Alberto Castro, $15,000 to murder Kemo who was killed three months later after which the “no witness, no case” attorney told several confidants he was concerned that Baskerville might implicate him in the murder. Anthony Young, a drug dealer at the office meeting with Bergrin, carried out the ordered hit by Curry.
And there were other murder plots, one with a Texas connection. Richard Pozo was, according to prosecutors, a “large scale drug trafficker who distributed multi-hundred kilogram shipments of cocaine he received in New Jersey via Texas.” In 2004 Pozo was indicted in the Western District of Texas for his connection to these drug shipments after which he retained Bergrin to represent him. The attorney quickly learned Pedro Ramon was the informant who had fingered Pozo. His defense strategy for Pozo: “if we could get to Ramon and take him out,” Pozo’s criminal “headache would go away.” That was too much, even for Pozo who told the attorney: “Are you nuts? I am not involved in murdering people.” The drug kingpin fired Bergrin and hired a new attorney.
And there was the Vicente Esteves murder plot. This large scale drug dealer also operated a trafficking enterprise in New Jersey. He retained Bergrin in 2008 after being charged with state drug offenses. Bergrin reportedly told Esteves that “the only way to beat the case was if [Esteves] took care of the witnesses” on a list of those who the attorney believed was cooperating with the government. Bergrin told the drug dealer he had experience in these matters; that he “hated rats and … would kill a rat himself; that “if there are no witnesses, there is no case.” Bergrin later met with Oscar Cordova in Chicago about carrying out the murders. What the attorney didn’t know was that Cordova was a government “rat” who wore a wire allowing the Feds to capture Bergrin on tape giving instructions to Cordova on how to kill the witnesses: “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.”
As Jacobson reported, even in Essex County, these were shocking and explosive charges against one of the county’s most powerful and colorful figures. One well known attorney told Jacobson that “if Paul is guilty of half the things they say, he’d be the craziest, most evil lawyer in the history of the State of New Jersey. That is saying something.”
Bergrin has denied all the allegations. He elected to represent himself pro se at trial which began in early October 2011. In his October 17 opening statement, Bergrin told the jury this about the Kemo murder: “I never wanted, … never expected, … that one hair on Kemo’s head would be hurt.” He told jurors that he had only acted in the best interests of his client, Baskerville. “When I represent – was called … to represent William Baskerville, who was accused of a criminal offense, the Sixth Amendment of the United States Constitution said I had to represent him, that he deserved to be represented effectively. And that’s all I ever did in this case.” Bergrin conceded he had called Curry to inform him that Kemo was the “confidential witness” but he denied any malicious motives, saying the call was part of his “legal duty” to represent Baskerville. He denied ever saying “No Kemo, no case.”
Bergrin offered a similar explanation to the jury about what the Government called the “Pozo Plot.” Let me tell you about the facts of Richard Pozo which will come out in this case. Richard Pozo was dealing cocaine. He sent a car with a bunch of cocaine in it from Elizabeth … where he was living, to Texas. The car began to be investigated. The car was dropped off in the driveway at somebody’s house. While the car is being investigated, Richard Pozo comes to see me, and says: ‘I think I have a problem. I believe they detected cocaine in a car that I had sent to Texas. Will you represent me?’
Bergrin added: “There is no informant. We have absolutely … no idea whatsoever who any informants are. The name Pedro Ramon doesn’t even fit into the equation. We have no clue who the informant is, he has no clue who any informant is. And I question him in front of Peter Willis and another outstanding attorney by the name of John Whipple in Texas, and that’s borne out here in this particular case. I never say to [Pozo]: Let’s get rid of the informant. Because what does that matter? It doesn’t matter. I would never say that because it has no impact, has no effect and I would never say that to this type of individual.”
Like his life, Bergrin’s trial would prove to be as stunning and shocking. Although he proceeded pro se, Bergrin had the assistance of backup counsel and legal adviser, Lawrence Lustberg, who was on President Obama’s short list to be U.S. Attorney General. The Government early on informed Bergrin and the trial court that it planned to use evidence of the Pozo and Esteves plots to support its Kemo plot. Judge William J. Martini had severed the Kemo plot from the other two plots and was initially receptive to this “extraneous offense evidence” being used against Bergrin under Rule 404(b) of the Federal Rules of Criminal Procedure. Four days before the trial the Government moved Judge Martini for at least some preliminary rulings on its motions for 404(b) evidence. Martini did not do so, and the jury was impaneled on October 13, 2011. The next day Martini issued a written ruling saying he would allow evidence of the Pozo plot; however, he said he would not permit evidence from the Esteves plot because believed it would be more prejudicial than probative, especially the recorded conversation between Bergrin and informant Cordova.
The Government was undeterred. It moved Martini to reconsider his ruling on the Esteves plot evidence, saying Bergrin had opened the door to that evidence when he discussed it in his opening statement. Martini was unimpressed. So much so that on November 8 the judge reversed his position on the Pozo plot evidence, saying the testimony he had heard thus far forced him to change his mind and find the Pozo plot evidence was also more prejudicial than probative. Martini made it clear that his change in positions was made because he had serious concerns about whether Richard Pozo was telling the truth.
The jury deliberated six days before informing Judge Martini it was hopelessly deadlocked. A mistrial was declared on November 23. The judge immediately said a retrial on the Kemo murder plot would be conducted in January 2012. The Government sought, and secured, a hearing on a motion to have the remainder of all the RICO counts tried with the Kemo murder plot. The judge denied the motion. The Government appealed the judge’s denial of its motion to the Third Circuit. The Government took the extraordinary step of asking the appeals court to reassign the case to another judge.
On June 15, 2012, the appeals court reversed Judge Martini’s litany of contradictory rulings in the case. The court also “reluctantly” reassigned the case to another judge. The appeals court said a judge should no longer preside over a case “’when a reasonable person, with knowledge of all the facts, would conclude that the judge’s impartiality might reasonably be question.’” The court added that to warrant reassignment, “a case generally must involve apparent bias deriving from an extrajudicial source, meaning something above and beyond judicial rulings or opinions formed in presiding over the case.” While the court refused to say that Judge Martini had been influenced by some “extrajudicial source,” it nonetheless said the judge’s conduct in the case had created “an appearance of impartiality.”
The 56-year-old Bergrin remains housed in Brooklyn’s Metropolitan Detention Center awaiting his retrial. He has been denied bail. “Mr. Bergrin participated in numerous plots to kill witnesses,” Assistant U.S. Attorney John Gay told the court. “If he is willing to go to those lengths on behalf of his clients, he is certainly willing to do it for his own freedom.” Jacobson poignantly summed up his “Greek tragedy:”
“Now entering his third year behind bars, Bergrin says he is using his prison time to get closer to his Jewishness. He prays each morning with tefillin and thinks about ‘the suffering experienced by our people.’ He has also completed his memoirs, which he says will ‘enable the fair-minded reader’ to ‘see through this indictment to objectively determine the truth, whole truth, and nothing but the truth. There was not an attorney in the United States who worked harder than me, served his fellow soldier with more dedication, and loved his children as much as me.’ He predicts the book will be ‘a national best seller.’
“Back in Jersey, Bergrin’s legend grows. Like Bonnie and Clyde, the roster of crimes he supposedly committed, cases he fixed, expands by the day. His name has turned up in the lyrics of East Orange rappers.
“’He’s a local legend,’ said one Essex prosecutor. ‘Paul was made for this place. He might have done terrible things, but it was Essex that helped him get away with it. Face it, criminals have been running things here for a hundred years. When you walk into a courtroom and a whole row of guys you know are Bloods are sitting in the back row, who is going to testify then? No one believes what the cops say on the stand. They haven’t, really, since the riots. If there was ever a place for which the phrase ‘It is what it is’ was made for, it is Essex.’ For all the good intentions, a lot slipped through the cracks, which was just the sort of environment where someone like Paul Bergrin could work out his own particular criminal drama.
“Meanwhile, the wheels of justice grind on. Over the past year, Thomas Moran and Vicente Esteves, both named in the indictment, have made deals with the Feds, likely ‘flipping’ on Bergrin. Only last month it was reported that Yolanda Jauregui [Bergrin’s former law partner/lover] had followed suit, pleading guilty to racketeering, conspiracy, and drug-dealing charges. It is expected that Bergrin will also flip, if he hasn’t already, and start singing about his life and times as New Jersey’s baddest lawyer.”
No one knows where Paul Bergrin crossed the line. Even given the benefit of the doubt that he is innocent of all 33 charges alleged in the superseding indictment handed down last June, there is enough evidence from Bergrin’s own mouth that he crossed the line many times. The problem for Bergrin now is that there is no one left for him to “flip” on. They have all flipped on him. He pushed all his chips into the middle of the table, and it will likely cost him the rest of his life in a federal prison—perhaps as an “inmate counselor” in the prison law library where the “no witness, no case” rule does not apply.
Mr. Bergrin has pled guilty to his role in running the prostitution ring and has been barred from representing client by the New Jersey Supreme Court. He maintains his innocence in the federal case.
“No witness, no case.” What a tragedy!