Patches And Criminal Organizations

November 1, 2016

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Patches And Criminal Organizations

A decision last week by the Supreme Court of Nova Scotia will probably not effect future cases in the United States but there is some chance that it might.

There has been a significant, multinational effort led by the American Department of Justice to find a way to criminalize membership in motorcycle clubs by proving those clubs are “criminal organizations.” And last Wednesday, The Honorable Justice Peter P. Rosinski ruled that Canadian prosecutors could use “similar act evidence” from a previous case to argue that the Bacchus Motorcycle Club is a “criminal organization” in an extortion case against three Bacchus members named Duayne Jamie Howe, Patrick Michael James, and David John Pearce.

The issue in the underlying Canadian case is whether Bacchus as a whole acted criminally, in assuming control over what club insignia motorcyclists would be permitted to wear in what Bacchus considered to be that club’s area of operations.

Preeminent Clubs

Rosinski described the underlying case like this:

“James, as a full patch member of an alleged criminal organization, the Bacchus Motorcycle Club, was asked by a recreational motorcycle enthusiast (named) R.M. whether he would approve of R.M.’s having a recreational motorcycle club whose members would be wearing a three piece motorcycle patch. R.M. was dissuaded by Mr. James from having a three-piece patch for his proposed club. R.M. thought he had permission to wear a one-piece patch from the Montréal-based “Brotherhood” and so with several other members went there and received their official patches in late August 2012. R.M. was threatened by members of the Bacchus Motorcycle Club between the time he arrived back from Montréal and September 15, 2012. Between January and September 2012, Mr. James allegedly intimidated, extorted, and threatened R.M. and/or his family to dissuade R.M. from having a motorcycle club with a three-piece patch, and for not following Mr. James’ directions to him. During the period of June 2012, Mr. James allegedly contacted another unrelated recreational motorcycle enthusiast, S.H., via Facebook to discourage him from continuing to publicly show a Facebook profile picture of himself wearing his motorcycle jacket, which had sewn onto the back a three-piece patch of a fictitious motorcycle club he created.”

“The Crown argues that the proposed evidence of extrinsic misconduct provides direct or indirect proof of the essential elements required to establish that the Bacchus Motorcycle Club is a criminal organization, and that the offenses in relation to R.M. were committed, for the benefit of, at the direction of, or in association with, that criminal organization.”

“Generally speaking, extrinsic evidence of misconduct/similar act evidence/bad character evidence are not admissible. However evidence of extrinsic misconduct is permissible if its purpose goes beyond proof of propensity or disposition to commit the crime, and its prejudicial effect is outweighed by the probative value thereof. Presuming that the evidence in relation to S.H. is fairly characterized as “misconduct”, the proposed evidence related to SH is relevant and material to whether the Bacchus Motorcycle Club is a criminal organization, and the defendants charged herein are not only members thereof, but whether they were acting in a criminal manner “for the benefit of, at the direction of, or in association with that criminal organization.”

A Criminal Organization

The judge wrote, “The Bacchus Motorcycle Club will be suggested to be a criminal organization in part based on the regalia its members wear, including a so-called ‘three patch’ motorcycle clothing patch. Such ‘three patch’ combinations generally are considered to refer to: a top patch containing the name of the motorcycle club – in this case, ‘Bacchus MC’; a middle insignia or logo – in this case, a head bearing an early period Greek armored helmet; and reference to a territory – in this case ‘Nova Scotia.’”

“The Crown will suggest that a ‘three patch’ motorcycle clothing patch is seen by criminal organizations to be a representation of their exclusive authority within that subculture over the territory in question; and that they will vigilantly guard against any purported encroachment on their territory, including any person or group purporting to wear a ‘three patch’ motorcycle patch claiming ‘Nova Scotia’ as its territory.”

Howe, James and Pearce are charged with extortion because they told “R.M.” he couldn’t wear a patch without the permission of the Bacchus Motorcycle Club. In order to prove that this was a practice of that club, prosecutors intend to introduce the testimony of someone named “S.H.” “S.H.” made up a motorcycle club called the “Wolverines,” then had a Wolverines three piece patch manufactured that claimed Nova Scotia as the imaginary club’s territory. “S.H.” then published pictures of himself in his costume on Facebook. And after he did that Patrick James told him to take the photos down. James told “S.H.” to stop pretending to be something he was not forcefully enough that “S.H.” complied.

Canadian prosecutors think that proves Bacchus is a criminal organization because the club claims territory and dictates who can wear a three piece patch and who cannot.

Mountie Speak

When the case was announced early in 2013, Royal Canadian Mounted Police spokeswoman Joanne Crampton said, “This is the first time in Nova Scotia to have these charges laid.”

She said prosecutors intended to make “a statement…that if convicted of these charges, it would show that the Bacchus is an outlaw motorcycle gang and are (sic) a criminal organization. It would also show that they’re not just a bunch of motorcycle enthusiasts, which is what they would like to make themselves out to be in the public.”

“They work as a group overall All 80 members work together,” Crampton said. “It’s not just one particular chapter working independently but they work in conjunction with each other,”

There have been similar cases brought against the Hells Angels Motorcycle Club in Ontario and the extension of this prosecutorial tactic into Nova Scotia seems to signal a trend. At least in Canada. The question is whether the trend is contagious and will spread to the United States.

Transnational Legal Theory

At least for now, wearing motorcycle club insignia in the United States is a Constitutionally protected form of personal expression. But the issue of a preeminent club being prosecuted for controlling or attempting to control who can and can’t wear a three piece patch has never been tried in the United States. The Nova Scotia case probably increases the odds that federal prosecutors may open such a case in the future.

And there is also the growing specter of the internationalization of American Constitutional law. The concept seems absurd at first glance. But in a death penalty case titled Thompson v. Oklahoma, Justice Stevens referred to “evolving standards of decency that mark the progress of a maturing society.”

The global war on motorcycle clubs “evolved” from the global war on Islamic terrorists after the war on Islamic terrorists proved to be both really, really hard and politically incorrect. Motorcycle outlaws are easy to spot because they wear their identities on their backs and they are easy to infiltrate because they are brotherhoods. In the United States, the Department of Justice is still pursuing an eight-years-long attempt to get the Mongols Motorcycle Club declared a criminal organization.

And after Thompson, it became reasonable to ask whether American law should align with, say, Canadian law. After a 2005 Supreme Court decision in a case titled Roper v. Simmons Constitutional scholars invented something called “transnational legal theory.”

Breyer Versus Scalia

After Roper, Justice Stephen Breyer and Justice Antonin Scalia, who differed markedly in their views on transnational legal theory participated in a “public discussion” at American University in Washington “on the validity of using foreign law in U.S. Constitutional cases” The discussion never made the news. Maybe it should have.

When asked whether “foreign court decisions” might “strengthen the sense that the U.S. assumes a common moral and legal framework with the rest of the world,” Scalia was blunt. “Well, most of those questions should be addressed to Justice Breyer because I do not use foreign law in the interpretation of the United States Constitution,” he said. “We don’t have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we’re to be just like Europe, they would have been appalled. If you read the Federalist Papers, they are full of statements that make very clear the framers didn’t have a whole lot of respect for many of the rules in European countries. Madison, for example, speaks contemptuously of the countries of continental Europe, ‘who are afraid to let their people bear arms.’”

But Justice Stephen Breyer admitted, “If I have a difficult case and a human being called a judge, though of a different country, has had to consider a similar problem, why should I not read what that judge has said? It will not bind me, but I may learn something.”

Eleven years later Justice Breyer continues to serve on the Supreme Court. Justice Scalia died earlier this year. His chair remains vacant and will be filled by the next President.

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54 Responses to “Patches And Criminal Organizations”

  1. rollinnorth Says:

    Well said, gentlemen, schooling PEI biker. I will add no more.

    Respect.

  2. The Kraut Says:

    @PEI biker: Citing the piss-gums as an example to be admired clearly places your unsolicited opinion and advice in the ‘who the fuck cares’ category. Learn to fucking spell too.

    As its been pointed out….”If I Have To Explain-You Won’t Understand”

    What you understand is unlike the world the real ride and live in…

    Respect to those who warrant respect

    The Kraut

  3. Base Says:

    PEI Biker

    You obviously haven’t been paying attention.

  4. Shovelhead Says:

    PEI Biker

    The Iron Order is not hated because they can’t be controlled, that’s a myth & fabrication by them and their sheep followers like you. IO is hated by the MC world because they instigate trouble with other clubs and when the shit hits the fan they RAT like fucking Cowards.

    They are disrespectful, shoot unarmed real men, allow cops in their club when for generations Cops have been lying and screwing over MC members putting innocent men in Prison then laughing about it all.

    Not all 3 piece patch clubs are connected to one of the big dominant clubs, They do their own thing and get by just fine. There’s several old clubs in my area one of which has been around since the 60’s and still do not wear a support patch.
    IO is the only club hated by all MC’s. And for good reason.
    Your opinion on Tradition sounds exactly like the opinion of Law Enforcement towards MC’s. Wonder why that is?

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