On Appeal from the United States District Court for the District of New Jersey (D.C. No. 09-cr-00369) District Judge: Honorable William J. Martini
The opinion of the court was delivered by: Hardiman, Circuit Judge.
Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges.
This case arises under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c). The Government appeals the District Court's order dismissing a RICO indictment of attorney Paul W. Bergrin and his co-defendants. Because the indictment adequately pleaded a RICO violation, we will reverse and remand.
Bergrin isa high-profile defense attorney and former federal prosecutor from New Jersey who now stands accused of leading an extensive criminal enterprise from 2003 through 2009.
On November 10, 2009, a federal grand jury in Newark, New Jersey returned a thirty-nine count superseding indictment charging Bergrin and seven co-defendants with a host of offenses, all allegedly connected through an "association-in-fact" enterprise called the Bergrin Law Enterprise (BLE or Enterprise). According to the indictment, the BLE was comprised of five individuals-Paul Bergrin; Yolanda Jauregui; Thomas Moran; Alejandro Barrazo-Castro; and Vicente Esteves-and four corporations-the law firm Pope, Bergrin & Verdesco, PA (PB&V); the Law Office of Paul W. Bergrin, PC; Premium Realty Investment Corp., Inc.; and Isabella's International Restaurant, Inc.*fn1
The indictment alleged that Bergrin was the leader of the BLE and played an instrumental role in all of the Enterprise's six criminal schemes. His co-defendants' alleged roles differed by scheme, with each having significant involvement in at least one scheme and little or no involvement in others. The six alleged schemes, also listed as "racketeering acts," are summarized below:
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.
The indictment also alleged the following seven purposes of the Enterprise, which we quote in full:
a. providing The Bergrin Law Enterprise and its leaders, members and associates with an expanding base of clients for legal and illegal services;
b. generating, preserving and protecting The Bergrin Law Enterprise's profits and client base through acts of, among other things, witness tampering, murder, conspiracy to commit murder, traveling in aid of racketeering enterprises, bribery, drug trafficking, prostitution, wire fraud, and money laundering.
c. protecting and preserving defendant PAUL BERGRIN's status as a licensed attorney;
d. enhancing defendant PAUL BERGRIN's reputation as a criminal defense attorney;
e. promoting and enhancing The Bergrin Law Enterprise and its leaders', members' and associates' activities;
f. enriching the leaders, members, and associates of The Bergrin Law Enterprise; and
g. concealing and otherwise protecting the criminal activities of The Bergrin Law Enterprise and its members and associates from detection and prosecution.
Bergrin, Jauregui, Moran, and Barazza-Castro were each charged in Count One with violating RICO, 18 U.S.C. §1962(c), and in Count Two with conspiring to violate RICO, § 1962(d).*fn2 Bergrin, Jauregui, Moran, and Esteves were also charged in Count Three with the commission of violent crimes in aid of racketeering (VICAR), 18 U.S.C. § 1959(a).*fn3
Bergrin and his co-defendants moved to dismiss the RICO and racketeering-based counts. On April 7, 2010, the District Court heard oral argument on whether the Government alleged in its indictment facts sufficient to support RICO charges. Two weeks later, the District Court granted the motions to dismiss Count One, finding that the
Section 1962(d) criminalizes "conspir[ing] to violate any of the provisions of subsection (a), (b), or (c) of this [§ 1962]." indictment did not adequately allege a racketeering "enterprise" or a "pattern of racketeering activity." United States v. Bergrin, 707 F. Supp. 2d 503, 519 (D.N.J. 2010). Because charges of conspiracy to violate RICO and VICAR both require elements of an underlying RICO ...