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__________
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
___________
Argued December 15, 2010
Before: RENDELL, JORDAN and HARDIMAN, Circuit
Judges.
(Filed: April 12, 2011)
d.
enhancing
defendant
PAUL
BERGRINs 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).2 Bergrin, Jauregui, Moran, and Esteves were also
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United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007).
To determine whether an indictment contains the
elements of the offense intended to be charged, a district
court may look for more than a mere recit[ation] in general
terms [of] the essential elements of the offense. United
States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002). A
district court must find that a charging document fails to
state an offense if the specific facts alleged in the charging
document fall beyond the scope of the relevant criminal
statute, as a matter of statutory interpretation. Id.; see also
United States v. Schiff, 602 F.3d 152, 16266 (3d Cir. 2010)
(indictment alleging failure to rectify misstatements of
others does not, as a matter of law, state an offense under
securities statute that criminalizes omissions of information);
Govt of V.I. v. Greenidge, 600 F.2d 437, 43840 (3d Cir.
1979) (indictment alleging assault on male companion of a
rape victim does not, as a matter of law, state an offense
under statute that criminalizes assaulting a rape victim).
A ruling on a motion to dismiss is not, however, a
permissible vehicle for addressing the sufficiency of the
governments evidence. United States v. DeLaurentis, 230
F.3d 659, 66061 (3d Cir. 2000) (citations omitted).
Evidentiary questionssuch as credibility determinations
and the weighing of proofshould not be determined at
th[is] stage. United States v. Gallagher, 602 F.2d 1139,
1142 (3d Cir. 1979). Rather, [i]n considering a defense
motion to dismiss an indictment, the district court [must]
accept[] as true the factual allegations set forth in the
indictment. United States v. Besmajian, 910 F.2d 1153,
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2
In addition to making impermissible factual findings,
the District Court also penalized the Government for failing
to allege facts that are unrelated to any required element of a
RICO offense. For example, the Court suggested that, to
constitute a pattern, the predicate acts must be similar in
ways not actually required by the statute or judicial precedent
(e.g., that there must be similar methods employed or some
temporal proximity linking the predicate acts).13 The Court
also suggested that proving the existence of a distinct RICO
enterprise requires the Government to show that the
enterprises goals do not primarily benefit one specific
member and that its operations do not too heavily rely on the
skill or status of one specific member.14 Lastly, the Court
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Throughout its opinion, the District Court raised
equitable or logistical concerns. Because these concerns are
either endemic to RICO prosecutions or involve the
application of irrelevant legal standards, it was improper for
the Court to dismiss the indictment for any of these reasons.
On several occasions, the District Court alludes to
RICOs broad scope and the potential for the law to be
misapplied so as to unfairly try and punish common criminals
and conspirators who were not the original targets of the
law.16 If we were writing on a blank slate circa 1971, the
District Courts concerns might carry the day. In the forty
years since RICO was enacted, however, much has been
written on the proverbial slate. The Supreme Court has
unwaveringly disagreed with the District Courts sincere
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