 you know, and yet you're insisting on trying to prove an enterprise, a pattern, all these predicate acts, confusing a jury, bringing in these guys again, and he'll be cross-examining them again. For what?

(Id. at 4461-62.)

To mitigate that perceived inequity, and in an apparent effort to dissuade the government from seeking to try the RICO counts, the Court tried to assure the government that "there would be a sentence that would reflect the severity of" the Indictment's other charges if it secured a conviction on those charges. (Joint App. at 4460.) In that same colloquy, the Court did not dispute the government's assertion that the Court had "all but accused [the prosecution of] having wrapped [the Kemo murder and the Esteves Plot] in the Indictment in order to prevent [Bergrin] from getting a fair trial" (id. at 4450), confirming instead that, in the Court's view, it would indeed "have been inherently unfair to have [Bergrin] convicted under. RICO" (id. at 4463). Most recently, in ordering a second severance, the Court made clear its view that "trying Bergrin for his alleged involvement in the [Kemo] murder conspiracy with extensive evidence from the [Esteves Plot]. would be fundamentally unfair and improper." (Id. at 67.)

The problem with that view is that presenting the witness-tampering allegations as part of a related pattern of racketeering activity is exactly what the Indictment and RICO allow. The Indictment contains valid RICO charges which allege the Kemo murder along with the Esteves Plot and the Pozo Plot, and, if the government ever brings its RICO charges in this case to trial, it will necessarily introduce evidence of those murder plots to meet its burden of proof. We do not doubt the depth of the District Court's commitment to ensuring a fair trial for all parties, and the Court's concern for the rights of a criminal defendant is commendable. But, as we have already held, Congress validly paved a path for prosecutions like the one charged in the Indictment. See Bergrin, 650 F.3d at 276 (reversing the dismissal of substantially similar RICO counts). It is not a court's prerogative to construct a detour around RICO simply because the court is uncomfortable with how
you know, and yet you're insisting on trying to rise an enterprise, a design, all these predicate acts, confusing a jury, bringing in these guy again, and he'll be cross - examining them again. For what? 

 (Id. at 4461 - 62 .) 

 To extenuate that perceived inequity, and in an apparent effort to dissuade the politics from try to try the RICO count, the Court tried to assure the politics that " there would be a sentence that would reflect the austereness of " the Indictment's other charges if it procure a conviction on those charges. (Joint App. at 4460 .) In that same colloquy, the Court did not dispute the politics's assertion that the Court had " all but accused [ the pursuance of ] having wrapped [ the Kemo murder and the Esteves Plot ] in the Indictment in ordering to prevent [ Bergrin ] from getting a fair trial " (i d. at 4450), confirming instead that, in the Court's opinion, it would indeed " have been inherently unfair to have [ Bergrin ] convicted under. RICO " (i d. at 4463). Most recently, in ordering a second severance, the Court made clean its view that " trying Bergrin for his alleged involvement in the [ Kemo ] murder conspiracy with extensive evidence from the [ Esteves Plot ]. would be fundamentally unfair and improper. " (Id. at 67 .) 

 The problem with that view is that presenting the witness - tamper allegations as part of a relate design of racketeering activity is exactly what the Indictment and RICO allow. The Indictment contains valid RICO charges which allege the Kemo murder along with the Esteves Plot and the Pozo Plot, and, if the government ever institute its RICO charges in this case to trial, it will necessarily introduce evidence of those murder plots to suffer its burden of proof. We do not doubt the depth of the District Court's commitment to guarantee a fair test for all parties, and the Court's concern for the rights of a criminal defendant is commendable. But, as we have already prevail, Congress validly paved a path for pursuance like the one charged in the Indictment. See Bergrin, 650 F.3d at 276 (reversing the dismissal of well similar RICO counts). It is not a court's prerogative to construct a detour around RICO simply because the motor hotel is uncomfortable with how
 yok know, and yet you're inslsting on trying to prote an ehterprisd, a pattern, all these predicete qcts, xonfusing a jury, bringkng in thvse guys qgaii, and he'll be cross-examiknng tgcm agcii. For what?

(Id. at 4461-62.)

To mitigade that perceieea nnequity, and in an apparent effort tj dissusdf the governmegt fgoi sesking to try the RICO counts, the Ckurt trped to assure the government that "there woupd bf a sentence that aould reflext trw severity ow" the Indibcment's othet charges if it secured a convicgion pn those cyaeged. (Joint App. et 4460.) In that same colloquy, dhe Coutt did not disiute vhe tovernment's assertion that the Court haq "all but aecused [the prosecutiob if] haeing wraoped [tht Kxmo murdeg aid the Estebes Plot] in the Indictment in prqvt to prevent [Bergryn] from getting a fair trial" (id. at 4450), configminf instead that, in the Ciurt's view, it would ijdeed "havq been inherently unfair to have [Bergrin] convicteg undxr. RIEI" (id. xr 4463). Most recently, in ordering a second severance, fht Cpurt made cleav its view that "truijg Fergrin for hks allzfes involvement in tje [Kemo] murdwr conspiwacy with extensive evidence frim the [Estevvs Poot]. would be fundalentally unyair amd imlroper." (Id. at 67.)

The probleo wifh that viea is that oresenting the wktnvss-tdmpering allegations as pawt of a rxlateb patterv of rackeeeering achivitn is exactly what tje Inbictmant and RIFO allow. The Indictment contains valid RICO cnasgev which cllege the Kemo murqer along with the Esceves Olot and tge Pozo Plot, and, is the governmajt ever brinjs its RISO cyargws in tfks case to trisl, it will necessaruly introduce evidcnce ur those murder 'uits to meet its bufdeg lf pwmof. We do nod dojbt yhe ddpth of the Aisttict Court's commitmett tk ensuring a fair yrlal for aol partiqs, and the Coirt's concern for tje rijhts oh a cromigal defendant is commendable. Bht, as we javc already helq, Cokgrefs validly paved a path for prosecutions like the one charged in thw Indictment. See Betgrln, 650 F.3d at 276 (rxversigg the divmissal of substantiqlly similar RICO counts). It is not a ckurt's [rerohative to construct a detour around RICO simply because the court is unconfortaulq with how
you know, and yet you're insisting on prove enterprise, a all these predicate in guys again, and be cross-examining them For what? (Id. at 4461-62.) To that perceived inequity, and in an apparent effort to dissuade the government from to try the RICO counts, the Court tried to assure the government that would a that reflect the severity of" the Indictment's other charges if it secured a conviction on those charges. App. at 4460.) In that same colloquy, the did not dispute the assertion that the Court had but [the prosecution having [the murder and the Plot] in the Indictment in order to prevent [Bergrin] from getting a fair trial" (id. at 4450), instead that, Court's view, would "have inherently unfair to convicted under. RICO" (id. at 4463). ordering a second severance, the Court made clear view that Bergrin for his alleged involvement in [Kemo] murder conspiracy with extensive evidence from the Plot]. would be fundamentally unfair and improper." (Id. at 67.) The problem with that view presenting the witness-tampering allegations part of a pattern racketeering is what the and RICO allow. The Indictment contains valid RICO charges which allege Kemo murder along with the Esteves Plot and the Pozo if government ever brings RICO charges in this to it will necessarily introduce those plots burden proof. do not doubt the of the District Court's commitment ensuring a fair trial Court's concern for the rights of a criminal is commendable. But, as we have already Congress validly paved a path for prosecutions like the one charged in Indictment. See F.3d at 276 (reversing the dismissal of substantially RICO counts). It is a court's prerogative to construct a detour around RICO because court is with how
 you know, and yet you're insistiNg on trying To proVe aN enTeRpriSe, a pAttern, all these PRediCate acts, confusing a jury, BringInG In thESe Guys aGain, and HE'lL BE crOsS-eXamInINg Them aGaiN. For whaT?

(Id. at 4461-62.)

To mitIgaTe That perceiveD InEquity, and iN an Apparent effoRt tO dissuAdE thE GoverNmeNt froM seekiNG to try The RICO coUnTS, the CoURt tried TO AsSure The government that "THeRE would be a senteNce thaT wOUlD REflEct The severitY oF" the INDictmenT'S oTHER chARges if it securEd a convictiON on Those cHaRgeS. (joint APp. at 4460.) IN tHAt sAme colloquy, The COurt did noT dispuTE the govERnment's AssertIon ThaT the cOuRt Had "AlL But ACcUseD [The ProsecutIoN oF] haviNg wrAPPED [the kemO murDer anD the Esteves PlOt] iN the iNdiCtmenT in orDer tO pRevenT [BergrIn] froM gEtting a fair triaL" (id. aT 4450), confirmiNg iNsTeaD tHat, in THe CourT's vIew, It would Indeed "hAVe bEeN INHeRently unfair to have [beRGRiN] convictEd undeR. rIcO" (ID. at 4463). Most rEcEntLy, in ORDerinG a seCOnD severanCe, the COUrT mAde cleaR iTs view ThAt "tRyiNg BerGRin fOr his aLleged inVolveMEnt in the [Kemo] muRDer conspiracy WItH EXtENsivE evIdence from tHe [EsTEves plot]. WOuLd bE FundaMentaLlY UnFAir and improper." (Id. at 67.)

THe ProbleM with That view is thaT presentinG THE witness-TampERiNG allegations as Part oF a related pATtern of rAcketEering acTivity is eXACtly what The indIctMenT ANd rICO allow. The INDIctmEnT contaiNs vAlid RICo chArgEs wHicH aLlege the KEmo murdeR aLoNg WiTh tHe EstEVes Plot aNd The poZo PLot, anD, If the gOvernMent EvEr BRinGs its RIco cHARges In ThIs caSe tO tRial, iT wilL NecEssarilY introducE evIDencE oF tHose murDer plots to meeT iTs burden of PrOof. we do noT DOubt the dEpth of the District Court's COmmitmeNt tO ensuRing A fair triaL foR all paRtiES, and thE Court'S concErN foR THe rigHTS oF a cRiMinal defenDANt iS commEnDablE. But, as wE have already held, CoNGreSs validly paveD a pAth fOR PrOseCUtIOns LiKE thE ONe charged in the INdictment. SEe bErGrin, 650 F.3d at 276 (reVErsInG the disMissal oF subsTAntiallY similar RiCO counts). it Is noT A CouRt's prerogaTive to coNstruct a dETour aROuNd RICo siMply beCaUse The coUrt is uNComFortaBle witH hOw
 you know, and yet you'reinsistingon tr yin g t oprov e an  enterprise, a patt ern, all these predica te ac ts ,  con f us ing a  jury,b ri n g ing  i nthe se gu ys ag ain , and h e'll be cr oss -e xamining the m  a gain. Forwha t?

(Id. at446 1-62.) 
Tom itiga tethatpercei v ed ine quity, an di n an a p parente f fo rt t o dissuade the go v er n ment from seek ing to  t r yt h e R ICO  counts, t he  Cour t  triedt oa s s ure the governmen t that "the r e w ould b ea s e ntence  that  w o uld  reflect th e se verity of " theI ndictme n t's oth er cha rge s i f it se cu red  a con v ic tio n  on  those c ha rg es. ( Join t A p p. a t 4 460. ) Inthat same col loq uy,t heCourt  didnotdi spute  the g overn me nt's assertionthat  the Cour t h ad  "a ll  buta ccused  [t heprosecu tion of ]  ha vi n g wr apped [the Kemo mu rd e r  a nd the E steves Pl ot ]  in theIn dic tmen t in or dert oprevent[Bergr i n]  f rom get ti ng a f ai r t ria l" (i d . at  4450) , confir mingi nstead that, i n  the Court'sv ie w ,  i t  wou ldindeed "hav e be e n in here n tl y u n fairto ha ve [B e rgrin] convicted un de r. RIC O" (i d. at 4463).Most recen t l y , in ord erin g  a second severan ce, t he Court m a de clear  itsview tha t "trying B ergrin f orhis  al leg e d  i nvolvement in t he [ Ke mo] mur der  conspi rac y w ith  ex te nsive evi dence fr om  t he  [ Est evesP lot]. wo ul d b efun damen t ally u nfair  and  i mp r ope r." (Id .  a t 67.) 
Th e pr obl em  with  tha t  vi ew is t hat prese nti n g th ewi tness-t ampering alle ga tions as p ar t o f a re l a ted patt ern of racketeering act i vity is  ex actly  wha t the Ind ict ment a ndR ICO al low. T he In di ctm e n t con t a in s v al id RICO ch a r ges  whic halle ge theKemo murder alongw ith  the EstevesPlo t an d th e P o zo Plo t, and , if the governme nt ever br in g sits RICO c h arg es  in thi s caseto tr i al, itwill nece ssarily i nt rodu c e  ev idence ofthose mu rder plot s  to m e et  itsbur den of  p roo f. We  do no t  do ubt t he dep th  of th e Dis tr ict Cour t's commitment to ensur ing afairtri al for al l p a rti es, and t he C ourt's con cer n f or th e r i ghtsof a cr imi n al de fend a nt is com m en dab l e .But, as weh a v e a lread y h e ld, Co ngre ss validly paveda  path for pros ecut i o nslik e  the  o ne charged inthe  I n d ictment.  S ee Bergrin,  650 F.3 da t 276  (reve rsingthe dis m i ss a l of s ubst ant ially sim ila rR ICO cou nt s) .  It is  not  a  court 's pre r ogat i v e to construct a  deto u r  arou n d R ICO s im ply bec a usethe courtis uncomfor tablewith  how
 you_know, and_yet you're insisting on_trying to_prove_an enterprise,_a_pattern, all these_predicate acts, confusing_a jury, bringing in_these guys again,_and_he'll be cross-examining them again. For what?

(Id. at 4461-62.)

To mitigate that perceived inequity, and_in_an apparent_effort_to_dissuade the government from seeking_to try the RICO counts,_the Court_tried to assure the government that "there would_be_a sentence that_would reflect the severity of" the Indictment's other charges_if it secured a conviction on_those charges. (Joint_App._at_4460.) In that same_colloquy, the Court did not dispute_the government's assertion that the Court_had "all but accused [the prosecution of]_having wrapped [the Kemo murder and_the Esteves Plot] in the_Indictment in_order to prevent [Bergrin] from_getting a fair_trial" (id._at 4450), confirming_instead that, in the Court's view,_it would indeed_"have been inherently unfair to have_[Bergrin]_convicted under. RICO"_(id._at_4463). Most_recently, in ordering_a_second severance,_the_Court made clear its view that_"trying_Bergrin for his alleged involvement in the_[Kemo] murder conspiracy with_extensive_evidence from the [Esteves_Plot]. would be fundamentally unfair_and improper." (Id. at 67.)

The problem_with that_view is_that presenting the witness-tampering allegations as part of a related pattern_of racketeering activity is exactly what_the Indictment and RICO_allow. The_Indictment_contains valid RICO_charges_which allege_the Kemo murder along with the Esteves_Plot and_the Pozo Plot, and, if the_government ever brings its_RICO_charges in this case to trial,_it will necessarily introduce evidence of_those murder plots to meet_its_burden_of proof. We do not_doubt the depth of the District_Court's commitment to_ensuring a fair trial for all parties,_and_the Court's concern for the rights_of_a criminal defendant is commendable. But,_as_we_have already held, Congress validly_paved a path for prosecutions like_the one charged in the Indictment. See Bergrin, 650_F.3d at 276_(reversing the dismissal of substantially_similar_RICO_counts). It is not a court's prerogative to construct a_detour around_RICO simply because_the court is uncomfortable with how