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Defendant's Motion to Dismiss Indictments Filed by Belknap County Attorney Andrew Livernois


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Belknap County Attorney Andrew Livernois is pressing a case against me that represents clear cut entrapment. This is my motion to dismiss the six felony indictments based on the subjective and objective approaches to entrapment law.

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Defendant's Motion to Dismiss Indictments Filed by Belknap County Attorney Andrew Livernois

  1. 1. - 1 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Richard Bergeron 107 Cotton Hill Road Belmont, NH 03220 BELKNAP COUNTY SUPERIOR COURT NEW HAMPSHIRE State of New Hampshire vs. Richard E. Bergeron III Defendant ) ) ) ) ) ) ) ) ) ) ) ) Case No. 211-2019-CR-163 MOTIO TO DISMISS I DICTME TS COMES NOW, the Defendant, Pro-Se Richard E. Bergeron III, and hereby moves to dismiss all criminal indictments against him due to the absolute defenses of entrapment and outrageous government conduct (i.e. denial of civil rights). This motion is based upon the pleadings and papers on file herein (Specifically Bergeron’s Pre-Indictment Affidavit and Brief/Memorandum of Law), Defendant’s supporting affidavit and any oral argument to be made pro-se at any hearing on this matter. BACKGROU D The defendant in this instant case, Richard Edward Bergeron III, slid off the road near the intersection of Route 106 and Pease Road in Meredith in a UHAUL box truck he was driving on the night of November 21, 2018. While attempting to reach the company’s roadside assistance group, a Meredith police officer stopped to talk to the defendant. The officer began insisting that Bergeron
  2. 2. - 2 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pay out of pocket for a wrecker to come pull him off the snowbank. Bergeron pleaded with the officer and explained he could not pay for a wrecker and could get roadside assistance for free. He also implored the officer not to order the tow since he was off the road and not obstructing any traffic. Upon information and belief, Bergeron is aware that many towing companies have arrangements with police stations to handle all their towing requirements in exchange for kickbacks or other special considerations. Often these are legalized, formal arrangements with officers literally earning their departments a commission on every tow the police order. The Meredith Police officer appeared to be pushing a tow on the defendant and seemed very upset with Bergeron refusing one, as if he was asked to fund raise for the department that night and get them some tows. This could have upset this officer enough to call acquaintances he had on the Drug Task Force and tell those officers to pay Bergeron a visit and retaliate against him for not agreeing to the tow. The uniformed officer eventually left the scene, and two other people stopped shortly after that who were later identified in their own affidavit as Corporal Swift and Officer Jared Beaulieu of the NH Attorney General’s Drug Task Force. These officers allege that only the odor of marijuana coming from Bergeron’s vehicle and their other observations that night led them to “Cold Text” the defendant to “ascertain whether or not he was in fact in possession of marijuana and whether or not he sells marijuana.” (See Arrest Warrant Affidavit) This language used in the affidavit clearly delineates the officers entrapped Bergeron since there was no definitive investigation done to actually determine if Bergeron was pre-disposed to commit the crime they set him up for. The use of the term “Cold Text” is nearly identical to “cold call,” which is a widely used term to describe sales calls made to people who are complete strangers you have no advance information about other than their names and phone numbers.
  3. 3. - 3 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The detective and corporal also explained in their sworn affidavit that they came up with the idea on their own to pursue what would become an elaborate entrapment scheme (the crime originated in the minds of the officers). The officers took Bergeron’s business card that he gave them to offer them firewood customers in their work area. They used this card he gave them to offer them help in their stated field to access the defendant’s criminal record, which they subsequently falsified in the affidavit used to arrest Bergeron. The officers, AT BEST, showed a complete lack of competence by calling the two charges on Bergeron’s record “convictions” in their affidavit. AT WORST, these officers fabricated evidence to justify their egregious actions. Attorney Livernois admitted in open court at the arraignment that he thought the officers made “mistakes” in presenting the bare charges on Bergeron’s criminal record as convictions, but he made it obvious that he hasn’t done an adequate inquiry into what the real truth is. He also did not seem at all concerned that Bergeron’s lack of any criminal convictions makes his own prosecution moot based on the subjective defense of entrapment. The day of Bergeron’s arrest was February 28, 2019, which was a full month after the last transaction with the task force officers that Bergeron is charged with. He was never read his rights, no search warrant was executed on his residence, and Belmont officers treated him with the utmost courtesy, even driving him to and from the police station before and after his booking and bail determination. Task Force Officials interrogated and pressured Bergeron to cooperate with the investigation without ever informing him of his rights on the day of his arrest. He refused cooperation knowing the potential of being killed for informing from his own father’s history as a detective. The task force and Livernois immediately set about framing Bergeron as a dealer rather than what the evidence suggests
  4. 4. - 4 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 he actually was: a courier getting product from a dealer to give to the agents he assumed (thanks to sophisticated subterfuge by the agents) were friends and colleagues. Since the arrest of the defendant, Livernois further illustrated a complete lack of professionalism and refused to acknowledge Bergeron as his own attorney despite vast legal experience the defendant has in multiple jurisdictions across the country (which Bergeron made Livernois well aware of). Attorney Livernois also refused to adequately address Bergeron’s concerns over task force leaks that alerted the real target of the investigation. The defendant expressed serious concerns about his health and safety which were ignored due to the fact that Livernois was uncomfortable talking to Bergeron without him being represented by counsel. Even when Bergeron sent a notice waiving his rights to appointed counsel and announced his intent to represent himself, Livernois persisted with this same attitude toward the leaks and shot down any idea of meeting personally with him due to Bergeron’s supposed lack of legal representation. Livernois purposely stalled in giving Bergeron access to any of his charging documents and insisted that a defendant with appointed counsel would be treated much differently as far as getting out ahead of the indictment and having a discussion about the case. The eventual package Bergeron received with records of the charges featured only the arrest warrant affidavit and six charging sheets with no case numbers on them. Livernois put Bergeron’s life and safety at risk by refusing to talk with him about sensitive matters relating to leaks that were dependent on critical elements of timing to find and eliminate said leaks. The unprofessional and unethical behavior exhibited by Livernois crossed the line and put Bergeron at risk of imminent harm as a result of the state’s total failure to police itself. Livernois further exacerbated his unprofessional and improper conduct by exercising his control over the clerk’s office to obstruct justice on the day of Bergeron’s arraignment and further
  5. 5. - 5 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deny his rights to due process. Bergeron followed all proper procedural requirements to have his pre- arraignment affidavit and brief filed and served on Livernois well before the hearing. There is absolutely no possible legitimate excuse for the clerk’s office to fail to place copies of those documents in the hands of the judge long enough in advance of the hearing for him to be able to review those documents and rule on their contents during the arraignment hearing. Bergeron was prejudiced by this stunt executed by Livernois, as Bergeron’s questioning of why the judge did not read the affidavit and brief caused him to lose his composure at the hearing and criticize the judge out of turn. Bergeron and all in attendance on March 21 witnessed the clerk informing the judge of the affidavit’s existence in the midst of the hearing itself. She then handed Bergeron’s paperwork to him, giving him no adequate time to review it even though she took the time earlier to have Bergeron review and sign her own side’s paperwork for the judge and then that paperwork, filled out the day of the hearing, most certainly ended up in his hands and was discussed at length almost immediately in open court. How did paperwork filed and served more than a full day before the hearing not reach the judge? There is only one explanation, and it points to the clerk purposely keeping Bergeron’s pleadings from being seen by the judge until the last possible second. Serious concerns of systemic prosecutorial abuse and law enforcement corruption and abuses of process have come to light through Bergeron’s defense of this case. Bergeron has particular evidence he will bring to bear at the hearing on this matter that additionally impugns the professional character of Attorney Livernois and betrays his willingness to participate willingly in a cover up. Bergeron thoroughly researched Livernois and his past record as a lawyer, and the results were disturbing in direct relation to the principal matters of this case. Livernois will already be featured in a detailed complaint Bergeron plans to file with the State of New Hampshire’s Bar Association. The behavior exhibited by this attorney belies some unhealthy
  6. 6. - 6 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and unholy interest in framing Bergeron for crimes he is most certainly not even qualified to face charges for under the color of the actual case law and existing evidence on the record. The fact that Livernois not only did not seek to remedy or correct the arrest affidavit before the arraignment prejudiced Bergeron even further than the matter of the judge not getting proper access to Bergeron’s documented evidence. Livernois excusing these “mistakes” as “immaterial” to the charges is a clear indication that he will do whatever it takes to stand by what represents completely tainted evidence. Bergeron communicated extensively with Livernois prior to his arraignment. Among his emails, Bergeron told Livernois that keeping the government’s bogus story straight while trying to initiate a cover up would be a failed approach for the prosecutor and the task force in the long run. Bergeron informed Livernois that his own personal pro-se experience with courts and investigations proved that someone always gets tripped up in a lie when they abandon the truth at all costs, as they are doing to gain a conviction here. Livernois did not take long to fulfill Bergeron’s prophecy, and he engaged the clerk’s office to assist him in further deception, literally right under Judge O’Neil’s nose. Attorney Livernois is now falling into his own trap of sorts, as he is clearly uncomfortable being confronted with the fact that his own behavior is truly suspect. He is not only making his own mistakes in this case now, but he is actively and purposely directing moves be made to obscure his continued denial of Bergeron’s 4th , 6th and 14th Amendment rights. This is a dangerous development in terms of maintaining a local justice system that is free of corruption and can be trusted to follow the letter of the law professionally, honestly and with compassion enough to make amends when real mistakes like this are made. Instead, Attorney Livernois chose to press forward with this case by making no allowances for Bergeron’s side of the story to be adequately told and considered. He is just convinced that he can toe the state line even though that line is obviously crooked and corrupt.
  7. 7. - 7 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Livernois failed in his charge as the top law enforcement officer in the county as well, as deciding to endanger Bergeron’s life to supposedly protect his right to remain silent was a horrible and misguided choice for him to make under the circumstances. It was one thing to deny Bergeron an opportunity to have a face to face meeting with the prosecutor prior to Bergeron’s formal notice of waiver of appointed counsel. Yet, after Bergeron submitted in writing that he was choosing to represent himself, no prosecutor who was truly interested in eliminating internal law enforcement leaks would refuse to hear evidence of said leaks. The conclusion must therefore be made that Livernois does not want to find these leaks and will let them destroy other cases in the future. What would be the reasoning as to why Livernois would not want to find leaks in law enforcement? This is a puzzling question to anyone who thinks the world is black and white and lawyers can’t be devious and dirty in their tactics and common practices. To Bergeron it is understandable that Livernois would purposely avoid investigating any allegations of leaks, for that would reflect badly on him that they were not detected by the state itself at any point. The unfortunate reality for Livernois—which he had a choice to address ethically but chose not to—is that he obviously knew any pertinent evidence of leaks would compromise his ability to convict Bergeron of the spurious charges built up against him. Livernois literally chose to maintain the supposed integrity of a sham case over the much more ethical and responsible approach of immediately pursuing a meaningful investigation of the leaks beginning with either Livernois himself discussing the situation with Bergeron or Livernois sending a law enforcement official to meet with Bergeron about the issues he faced and was demonstrably upset and disturbed by. The lack of recognition by Livernois of Bergeron’s 6th Amendment right to self-representation is the only reason these leaks were not immediately identified and dealt with appropriately in the days
  8. 8. - 8 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 following Bergeron’s agreement to cooperate on that front for absolutely no consideration in lessening his charges. Livernois defended his behavior at the arraignment hearing by claiming he was actually trying to protect Bergeron, but his argument makes no sense upon examination of the full, accurate record of this case. The County Attorney is certainly not showing any indication that he has any genuine, real concern or initiative to fix the issues presented by Bergeron that compromise this entire case. This is especially relevant considering the trial judge’s repeated insistence during the arraignment hearing that Bergeron had a right to represent himself. If Attorney Livernois truly cared about Bergeron’s rights and wanted to make sure he received a fair trial, he would not have let perjured evidence hit the docket and he would not have done all he could to prevent the judge from gaining adequate access to Bergeron’s legal paperwork prior to the arraignment. The bare fact is that Livernois refused to talk to Bergeron at all before the hearing despite urgent safety concerns and worries that he might be targeted for elimination by either sophisticated criminals or even more sophisticated law enforcement leaks helping those criminals. This lapse of judgment by the County Attorney caused not only the ruin of the last meaningful investigation that could be salvaged from this whole fiasco, but it also created a deep divide between Bergeron and Livernois that can never be remedied. The trust gap is just too wide for Bergeron to ever have any constructive discussion about resolving this case outside the courtroom with someone he believes is a thoroughly dishonest and corrupt county attorney. Further, the blatant discrimination against Bergeron acting as his own attorney is indicative of a general attitude held by Livernois that posits criminals who are unrepresented by professional lawyers somehow have less rights and privileges than those who have a paid or appointed attorney at their disposal. Livernois clearly expressed his willingness to meet prior to the arraignment IF and
  9. 9. - 9 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ONLY IF Bergeron had a paid attorney by his side as the court would obviously not be able to appoint one before the hearing. This irresponsible, unethical and clearly twisted logic clearly flies in the face of the intent of the 4th and 14th Amendment due process protections and Bergeron’s 6th Amendment right to counsel, even if that counsel is himself. Had Bergeron been a transient with a long rap sheet and a clear drug addiction problem and no litigation history at all, Livernois working to protect his rights might make sense in that context. Instead, Bergeron informed Livernois in no uncertain terms that he was wholly qualified to represent himself. Bergeron included evidence including a link to his published book on representing yourself in court and the decision of the 7th Circuit Court of Appeals on Bergeron’s Writ of Mandamus. He also suggested Livernois search on the PACER system for records of Bergeron’s past involvement in litigation as a pro-se party. There may be no other party in the history of the US justice system with more significant non- credentialed pro-se experience in more jurisdictions than Bergeron has to his credit. The fact that this reality is one Livernois must have never dealt with in his past should not forgive or otherwise excuse his inability to recognize Bergeron’s demonstrated capabilities and competence. Bergeron is an individual who takes justice and the truth extremely seriously. Bergeron has never been paid to represent himself, and the bulk of his legal and journalism work has been done for no payment whatsoever. He has a deep sense of service before self, ingrained by his experience at The United States Air Force Academy, Virginia Military Institute and Norwich University. This case represents the worst possible entrapment scenario for those task force officers who encountered Bergeron on the night of November 21, 2019. This case illustrates why it should never be acceptable to target a random, innocent person you know nothing about and set him up for 6 felony level drug charges just because his vehicle smells funny. Entrapment may not be illegal in any
  10. 10. - 10 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sense of the word, but when used in the wrong circumstances it can have consequences that have a catastrophic effect on the effectiveness of the entire justice system and the ability of law enforcement agencies and officials to corrupt and pervert it. Bergeron is not only a person with no predisposition to commit crime, he is the polar opposite. He has an impeccable record of fighting for the kind of justice most paid lawyers are too lazy or scared to even pursue without the reward of a fantastic windfall of cash at the end of the grueling process. Furthermore, Bergeron’s experience taught him ALL attorneys have a charge to INVESTIGATE the facts and legitimacy of the legal argument of a case before presenting it to any court. Attorney Livernois has done no such inquiry into the facts and legal framework of this case and refused to acknowledge the over-riding case law that actually precludes prosecution of this case at all. This constitutes a fraud upon the court, and Attorney Livernois should be subject to Bergeron’s detailed cross-examination regarding these concerns at any hearing to dismiss that should result from this instant motion. Bergeron will also compile a sanctions motion in the coming weeks that will more specifically address all of the instances in which Attorney Livernois made himself subject to judicial sanctions for abuses of process and failing to present an accurate record of the case to the court. Bergeron informed Livernois in advance of the hearing about the mistakes in the arrest affidavit, but Livernois made no moves to correct those mistakes except by admitting out of context in open court that Bergeron had no criminal convictions at all on his record. Detective Jared Beaulieu should also have to provide answers as to why he presented a perjured affidavit as fact to justify the start of his entire investigation and Bergeron’s subsequent arrest. Inquiries must be made into how his failure to read a police report reflects on his ability to carry out his other law enforcement duties in a capable and competent fashion. We must also
  11. 11. - 11 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 determine what kind of training this officer completed in the past and whether or not he has an adequate education on what constitutes entrapment. Cross examination of Detective Beaulieu at any hearing on this subject can also help determine if there are any other lies purported to be fact within that tainted warrant affidavit. The defendant in this case has already been prejudiced enough by the unethical and improper behavior of the prosecution team. Due to the overwhelming evidence and case law that contends Bergeron deserves the protections provided by entrapment law, these indictments are effectively rendered moot. This case focuses mainly on law enforcement tactics to oppress and condemn an innocent individual charged with manufactured crimes. Bergeron had no criminal record when he was entrapped and represented the easiest target to coerce (due to his wholly honest and helpful human nature and the fact that he was not ever convicted of a single crime). He additionally had no reason to be forced to cooperate when confronted with the charges since the task force officers who interrogated him were actually the ones who ultimately convinced him that he was indeed entrapped. Since Bergeron did not cooperate to help the task force move in on the target dealer, they simply framed the entire case as if Bergeron was the real dealer who received all his product from a “supplier.” Attorney Livernois could always clearly understand the illegitimate nature of this case, and rather than stop it in its tracks and remedy the situation he is only deepening the corruption and manipulating the process to disadvantage and railroad Bergeron. These are crimes the defendant should not be liable for due to the over-riding entrapment issues prevalent as to both the subjective and objective standards of the legal test. The state has no authority to even pursue these charges in this instant case if it can be shown that they targeted someone who was not predisposed to commit
  12. 12. - 12 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the crime and their conduct was outrageous enough to demonstrably deny him his civil rights. This case is rife with examples of Bergeron being denied due process. He even informed the bail bondsman that he intended to represent himself ON THE DAY OF HIS ARREST, but he had to wait until mere days before the arraignment hearing, weeks later, to get the proper documentation he needed to mount an immediate defense and get his own testimony on the record. Even then, Bergeron was unfairly denied equal footing at the first hearing because a corrupted clerk kept his professionally packaged and presented evidence and documentation from reaching the judge’s hands in time for him to adequately review it. LEGAL A ALYSIS The elements of entrapment provide an absolute defense to all 6 formal felony charges at the center of this criminal complaint. The key factor in determining whether a law enforcement operation can be considered entrapment is the inducement of the crime by law enforcement officers themselves. The instant case features a lead detective who compelled Bergeron to “help” him obtain marijuana and repeatedly reached out to Bergeron to do so, building up six felonies with which to pressure Bergeron to cooperate against his dealer. The detective posed as a colleague in the same field Bergeron worked, played on Bergeron’s sympathies, and acted like someone who was in dire need of medication. This subterfuge to trick Bergeron into selling the detective drugs was all done without the requisite knowledge of Bergeron being involved in any drug sales in the past. The arrest warrant affidavit destroys itself as far as the argument that Bergeron is a drug dealer. Detective Beaulieu admits in his own words that Bergeron always needed a certain amount of extended time to pick up the product and deliver it back to the officers, even in the case of the first
  13. 13. - 13 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 small purchase of $60 worth of marijuana. Officers erroneously refer to someone Bergeron calls “my guy” as a “supplier” instead of a dealer, with the obvious mindset of framing Bergeron as something he is most certainly not. Even with all the surveillance conducted, the only client ever observed purchasing marijuana from Bergeron was the State of New Hampshire’s drug task force detective. Courts have long struggled with pinning down the nuances of the entrapment defense, and the most potent form of the legal defense is the argument that legislative intent effectively bars prosecution of any case where entrapment is the main method of securing evidence. A majority of the Supreme Court Justices have always favored the subjective approach to entrapment. According to this view, entrapment is a defense founded in legislative intent and the concept of fundamental fairness to defendants. (See Sorrels, 287 U.S. at 451-52) In Sorrells v. United States, 287 U.S. 435 (1932), the case in which the Court first recognized entrapment as a defense, the majority reasoned that it was contrary to established principles of law to “punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not . . . lured him to . . . commit it.” Id. at 444(Quoting Butts v. United States, 273 F. 35 (8th Cir., 1921)) Pursuant to this reasoning, the federal courts and most of the states have adopted the subjective standard, in which the court examines the extent to which the defendant was subjectively predisposed to commit the criminal act prior to the government’s involvement. See Moore, supra note 6, at 1160. Under this subjective approach, entrapment, like duress, is an excuse defense because the defendant’s actions are not considered to have been fully his own. See ROBI SO , supra note 13, at 513. In addition to the subjective and objective standards, a few states have adopted hybrid approaches to entrapment that are comprised of both objective and subjective elements. See MARCUS, supra note 13, at 44-47.
  14. 14. - 14 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The outrageous government conduct defense is founded on the principle that when the government’s conduct and involvement in a criminal venture is so scandalous that a defendant is arguably deprived of due process of law, fundamental fairness prohibits prosecution of the resulting crime. See, e.g., United States v. Twigg, 588 F.2d 373, 381 (3d Cir. 1978). The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. On its face, the Due Process Clause only guarantees procedural protection; however, the U.S. Supreme Court has also invoked it to protect certain substantive rights. See Rosalie Berger Levinson, Protection Against Government Abuse of Power: Has the Court Taken the Substance Out of Substantive Due Process?, 16 U. DAYTON L. REV. 313, 313 (1991). The protection of substantive rights stems from the Court’s long-held tenet that due process is “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). In criminal cases, a defendant’s right to due process is violated when the government has ignored principles of fundamental fairness. See Kinsella v. United States ex. rel. Singleton, 361 U.S. 234, 246 (1960). A review of the recording of Bergeron’s improper interrogation by task force members, which should also take place at the hearing, will prove that Bergeron has been 100 percent truthful in his written testimony and open court statements thus far. The cross examination of MPO Riley, the male task force officer and the female agent in the interrogation room should also be conducted at the hearing as the interrogation room and police department conduct is especially applicable to the concerns of due process denial and the fact that task force officers did not care that Bergeron was never read his rights. The female clerk who read Bergeron’s charges and had a pre-arraignment meeting outside the courtroom with Bergeron should also be cross examined about her conduct prior to and during the
  15. 15. - 15 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 March 21 hearing. There is no reason she was not able to deliver Bergeron’s documents to the judge at the very same time she delivered the bail determination paperwork, or even sooner. The judge being unable to see paperwork labeled “Pre-Arraignment” until DURING the hearing is further evidence of Bergeron’s rights being denied and the process being manipulated by prosecutorial misconduct, unfairly prejudicing Bergeron’s ability to adequately state his case on a more equal footing with the prosecutor, violating his rights to due process and equal treatment under the law. Bergeron’s defense relies on both standards of the entrapment defense since he was clearly entrapped on principle and government officials clearly and egregiously denied Bergeron’s rights to due process and acted in a manner that shocks the conscience. The fact that this behavior continued to permeate and poison the case leading up to and into the hearing after Bergeron called it out in his pre- arraignment paperwork is extremely telling and troubling. The most applicable case to these current circumstances is Sorrells v. United States, 287 U.S. 435, where a Federal agent visited some war buddies and after some reminiscing, the Federal agent asked the friend (accused) to purchase some liquor in violation of the National Prohibition Act. The accused stated that he "didn't bother with the stuff." But after repeated requests by the agent, the accused left and returned with some liquor about a half hour later. After his arrest, conviction, and appeal, it was shown that the accused was of good character, a steady worker, and had no record of either possessing or selling liquor prior to this transaction. The court held that the accused was "entrapped" into the commission of the crime, and therefore, he had a valid defense. The court pointed out that this was an abuse of authority. The abuses of authority in the current case are tenfold worse. On grounds of public policy, the courts have refused to participate in an indirect commission of a crime by being a party to its punishment. The judiciary will not punish a crime which was
  16. 16. - 16 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 instigated, developed, and culminated by another branch of our Government. If the executive branch of Government, represented by law enforcement officers, by an over-zealous and superinducement, or over-persuasion, plants a criminal intent in an apparently innocent mind with the intent to arrest the person who was "lured into its commission," the courts permit the use of the claim of entrapment as a complete defense. More aptly put by Judge Marston in a Michigan case, "Human nature is frail enough at best and requires no encouragement in wrong doing. If we cannot assist another, and prevent him from committing crime, we should at least abstain from any active efforts in the way of leading him into temptation." Saunders v. People, 38 Michigan 218, 221. Reported in A TREATISE ON THE LAW OF CRIME, CLARK & MARSHALL, 5th Edition, 794 pages, Callaghan & Co. Chicago 1952 at pages 219 and 220. As stated by Justice Brandeis, dissenting in Casey v. United States, supra, at 423: I am aware that courts—mistaking relative social values and forgetting that a desirable end cannot justify foul means—have, in their zeal to punish, sanctioned the use of evidence obtained through criminal violation of property and personal rights or by other practices of detectives even more revolting. But the objection here is of a different nature. It does not rest merely upon the character of the evidence or upon the fact that the evidence was illegally obtained. The obstacle to the prosecution lies in the fact that the alleged crime was instigated by officers of the Government; that the act for which the Government seeks to punish the defendant is the fruit of their criminal conspiracy to induce its commission. The Government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature. Bergeron NEVER solicited the officers of the task force to buy drugs from him at any time. He did not reach out in any communications and tell the officers he was going to get some and ask if they wanted any. It was ALWAYS Detective Beaulieu who formally initiated and induced each and every commission of a crime by Bergeron. The evidence that constitutes all six felony counts in this instant case came solely from the task force’s requests that Bergeron acquire drugs on their behalf. "The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the
  17. 17. - 17 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permissible stratagems involved in the detection and prevention of crime. Thus, before the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at least some showing of the kind of conduct by government agents which may well have induced the accused to commit the crime charged." Lopez v. United States, 373 U.S. 427, 434-435. Inducement conduct absolutely permeates this entire instant case. Predisposition is a term often used in criminal cases where a claim of entrapment is raised. Predisposition generally means a personal inclination or a ready response to solicitation. Government conduct may be considered to create a predisposition to commit a crime, even before any Government action to induce the commission of the crime. In JACOBSO v. U ITED STATES, 503 U.S. 540, the court held that the government must prove not only that a suspect was predisposed to commit the crime before the opportunity to commit it arose, but also before the Government came on the scene. Learned Hand expressed it thus: "The whole doctrine derives from a spontaneous moral revulsion against using the powers of government to beguile innocent, though ductile, persons into lapses which they might otherwise resist." United States v. Becker, 62 F.2d 1007, 1009. In 1958 the Court again considered the theory underlying the entrapment defense and expressly reaffirmed the view expressed by the Sorrells majority. Sherman v. United States, supra. In Sherman the defendant was convicted of selling narcotics to a Government informer. As in Sorrells, it appears that the Government agent gained the confidence of the defendant and, despite initial reluctance, the defendant finally acceded to the repeated importunings of the agent to commit the criminal act. On the basis of Sorrells, this Court reversed the affirmance of the defendant's conviction.
  18. 18. - 18 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In affirming the theory underlying Sorrells, Mr. Chief Justice Warren for the Court, held that "[t]o determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 356 U. S., at 372. Mr. Justice Frankfurter stated in an opinion concurring [411 U.S. 430] in the result that he believed Mr. Justice Roberts had the better view in Sorrells and would have framed the question to be asked in an entrapment defense in terms of "whether the police conduct revealed in the particular case falls below standards . . . for the proper use of governmental power." Id., at 382.7 The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, `A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' Id., at 372, quoting Sorrells v. United States, 287 U. S., at 442. Mr. Justice Frankfurter stated the same philosophy in Sherman v. United States, supra, at 382- 383: "No matter what the defendant's past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society." And he added: "The power of government is abused and directed to an end for which it was [411 U.S. 438] not constituted when employed to promote rather than detect crime . . . ." Id., at 384. Mr. Justice Roberts in Sorrells put the idea in the following words: The applicable principle is that courts must be closed to the trial of a crime instigated by the government's own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy. 287 U. S., at 459.
  19. 19. - 19 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal and local law enforcement agents play a debased role when they become the instigators of the crime, or partners in its commission, or the creative brain behind the illegal scheme. More fundamentally, focusing on the defendant's innocence or predisposition has the direct effect of making what is permissible or impermissible police conduct depend upon the past record and propensities of the particular defendant involved. Stated another way, this subjective test means that the Government is permitted to entrap a person with a criminal record or bad reputation, and then to prosecute him for the manufactured [411 U.S. 444] crime, confident that his record or reputation itself will be enough to show that he was predisposed to commit the offense anyway. Yet, in the words of Mr. Justice Roberts: Whatever may be the demerits of the defendant or his previous infractions of law these will not justify the instigation and creation of a new crime, as a means to reach him and punish him for his past misdemeanors. . . . To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction. Sorrells v. United States, supra, at 458-459. Several federal courts have adopted the objective test advanced by Mr. Justice Roberts and Mr. Justice Frankfurter, or a variant thereof, focusing on the conduct of the government agents, rather than the "predisposition" of the particular defendant. See, e. g., United States v. McGrath, 468 F.2d 1027, 1030-1031 (CA7 1972); Greene v. United States, 454 F.2d 783, 786-787 (CA9 1971); Carbajal-Portillo v. United States, 396 F.2d 944, 948 (CA9 1968); Smith v. United States, 118 U. S. App. D. C. 38, 44, 46, 331 F.2d 784, 790, 792 (1964) (en banc); United States v. Chisum, 312 F.Supp. 1307 (CD Cal. 1970). Cf. United States v. Morrison, 348 F.2d 1003, 1004 (CA2 1965);
  20. 20. - 20 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accardi v. United States, 257 F.2d 168, 172-173, n. 5 (CA5 1958); United States v. Kros, 296 F.Supp. 972, 979 (ED Pa. 1969). Moreover, this objective approach is the one favored by a majority of the commentators. In addition to the Proposed New Federal Criminal Code and the Model Penal Code, supra, n. 1, see Williams, The Defense of Entrapment and Related Problems in Criminal Prosecution, 28 Fordham L. Rev. 399 (1959); Cowen, The Entrapment Doctrine in the Federal Courts, and Some State Court Comparisons, 49 J. Crim. L. C. & P. S. 447 (1959); Donnelly, supra, n. 2; Comment, Entrapment in the Federal Courts, 1 U. San Francisco L. Rev. 177 (1966). The gravamen of the objective view of entrapment is whether the police conduct “falls below standards, to which common feelings respond, for the proper use of governmental power.” Sherman v. United States, 356 U.S. 369, 382 (1958) (Frankfurter, J., concurring). According to this test, which is also known as the “reasonable law-abiding person approach,” (ROBI SO , supra note 13, at 520- 21) if the government’s method of inducement was likely to induce an ordinarily law-abiding citizen to break the law, then the charges should be dismissed even if the accused was ready and willing to commit the offense. See Sherman, 356 U.S. at 383-84 (emphasis added). Unlike the subjective inquiry, which is an issue of fact for the jury, the objective determination is an issue of law decided by the judge. See Sorrells, 287 U.S. at 457. Justice Roberts’ concurrence in Sorrells, in which he opined that “the true foundation of [the entrapment] doctrine [is] the public policy which protects the purity of government and its processes.” Sorrells, 287 U.S. 435, 455 (1932) (Roberts, J., concurring); see also supra notes 38-49 and accompanying text (summarizing Sorrells). He felt that it “is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law” regardless of the defendant’s state of mind when committing the crime. Sorrells, 287 U.S. at 457.
  21. 21. - 21 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Even though the objective approach to entrapment would allow culpable defendants to go free, Justice Frankfurter argued that it was “less evil that some criminals should escape than that the Government should play an ignoble part.” Id. at 380 (quoting Olmstead v. United States, 277 U.S. 438, 470 (1928) (Holmes, J., dissenting)). A few states have developed alternative entrapment doctrines that include both objective and subjective elements. See MARCUS, supra note 13, at 44-47. The New Jersey, Florida, Indiana, and North Dakota legislatures have all promulgated hybrid entrapment statutes, while New Hampshire and New Mexico have adopted hybrid approaches by way of judicial pronouncement. See Paton, supra note 90, at 1005; Doug Nesheim, Comment, Criminal Law— Entrapment: Illegal Police Conduct Gets Stung by the Entrapment Defense in State v. Kummer, 69 N.D. L. REV. 969, 993-96 (1993). The ultimate intent underlying the adoption of these hybrid approaches is to reap the benefits of both the subjective and objective inquiries, while minimizing the problems associated with each. In New Hampshire, the entrapment standard is a mixture of the subjective and objective approaches focused into a single two-pronged inquiry. N.H. REV. STAT. ANN. § 626:5 (1996). Bergeron was never pre-disposed to commit drug crimes, and the investigating officers in the instant case falsified evidence in their affidavit, misrepresenting Bergeron’s criminal record to make him appear somehow more dangerous or likely to commit crime. The task force then published and promoted that blatantly false representation of Bergeron’s criminal record in the Beaulieu affidavit, had him arrested on false pretenses without adequately informing him of the exact charges, directed the Belmont Police to publish in the paper that he was arrested on warrants for possession despite Bergeron telling Attorney Livernois that he thought this might impact his safety, failed to read him his rights or ask him if he knew them, and bullied him to attempt to get him to cooperate with a wholly compromised investigation. Bergeron’s life and safety were then put further at risk by a
  22. 22. - 22 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 prosecutor who refused to recognize Bergeron’s right to represent himself and additionally did nothing to capitalize on information Bergeron had about law enforcement leaks that derailed the investigation a month before Bergeron’s arrest. This case, as Bergeron told the County Attorney long before he initially filed it, is the perfect legal storm. The actions of all involved law enforcement officials and agents ruined the possibility of putting together any effective real case against any legitimate target. Rather than fight real crime, the officers involved created crime and manufactured this case to make Bergeron’s conviction another notch on their career belts. Bergeron is being prosecuted solely because he refused to cooperate with an investigation he found out later was doomed from the start due to pervasive leaks. Meanwhile, any chance to identify and eliminate those leaks (who will surely tip off future investigation subjects) are lost forever due to Bergeron being shut out of the process any at bar attorney would have been invited into with open arms. CO CLUSIO WHEREFORE, Defendant formally requests that this court take definitive steps to bar the prosecution from pursuing the charges against him due to the absolute defenses of entrapment and outrageous government conduct (i.e. denial of multiple civil rights). The case should be dismissed immediately upon a determination that Bergeron’s evidence, argument and the events that unfold at the hearing on this instant motion amount to clear-cut and convincing evidence that he was entrapped and his civil rights were purposely denied, obstructing any real hopes of Bergeron gaining true justice in this matter in a prompt and orderly fashion.
  23. 23. - 23 - Defendant’s Motion to Dismiss Indictments 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The courts should not be used as a club to beat down and make the innocent pay for crimes that are manufactured against them by reckless agents who randomly target people for convictions that carry heavy prison sentences. Knowing nothing other than there was an odor of Marijuana coming from Bergeron’s vehicle, the task force officers falsified his criminal record and turned him into a felony-level drug seller of their own volition, making no real impact on drug crime whatsoever. Bergeron should be granted leave upon dismissal of the indictments to file a detailed sanctions motion. Should that motion be successful and a hearing determines there was misconduct at the heart of this crusade to wrongfully convict Bergeron, relief should be granted that shall be sufficient to deter repeat behavior of the same kind that gives rise to the sanctions request. Our courts and our justice system must be protected and preserved as hallmarks of a structured society. We cannot let people abuse the system as it has been abused thus far in this case without serious consequences. Attorney Livernois has taken advantage of the public’s trust with his behavior here and carried himself in a manner that is unbecoming of a prosecutor of his stature. He should be held to a much higher standard than he is attempting to meet in this case, and the county deserves a much better representative if this distressing pattern of aggressively trying and pushing weak, unfounded cases is routine and not an isolated incident. _______________________________________________ Richard E. Bergeron III Attorney Pro-Se 107 Cotton Hill Rd. Belmont, NH 0322004