Month by month, the federal prosecution of former Bandidos National President Jeff Pike grows to resemble a previously unknown satire by Lewis Carroll. Call it Through The Legal Looking Glass.
Eric Joseph Fuchs, the Assistant United States Attorney who has been trying to disqualify Pike’s lawyer, Kent Schaffer, since October is still at it. Schaffer is a very experienced and formidable defender. Fuchs is comparatively inexperienced and the best he could do after 20 years of schooling was a government job. Disqualifying Schaffer would not only offer Fuchs an easier opponent but it would also ensure that any money Pike or his motorcycle club have already paid Schaffer would have been wasted.
Judge Henry J. Bemporad heard arguments for and against Schaffer’s disqualification on November 30. Bemporad ruled Schaffer could stay on the case. Fuchs entered a supplemental motion to disqualify Schaffer on December 20 and yesterday Bemporad scheduled another hearing on the matter for January 6 at 10 a.m. in the United States Courthouse in San Antonio. The core of the government’s argument is that Schaffer must be “complicit in the (prosecution’s) narrative in some way.”
In his motion, Fuchs claims to have evidence that “demonstrates that Mr. Schaffer entangled himself, be it knowingly or unknowingly, to an extraordinary degree in the activities of the Bandidos OMO. Numerous witnesses will testify that Mr. Schaffer reviewed legal paperwork for the Bandidos OMO and at least one recorded conversation supports that. Mr. Schaffer has denied that allegation. But as the Court has noted, the issue at this time is not the veracity of the allegations – even without going into the factual merits, this very dichotomy raises a number of issues which give rise to an unwaivable conflict of interest that respectfully must be addressed by the Court:
“Although the government is not averring that Mr. Schaffer is involved in criminal conduct, it could be inferred by the finder-of-fact that Mr. Schaffer was complicit in the narrative in some way, or that Bandidos OMO members utilized Mr. Schaffer when he represented them to review legal paperwork for ulterior enterprise motives, or that the enterprise used Mr. Schaffer’s name as part of their scheme to silence and intimidate members without Mr. Schaffer’s knowledge or consent. The latter could prove consistent with Mr. Schaffer’s proffers to the Court thus far. Either way, Mr. Schaffer becomes a fact witness.”
Fuchs simply takes it for granted that the “Bandidos Outlaw Motorcycle Organization,” whatever that is, “is a criminal enterprise” whatever that means.
In an argument so imaginative and divorced from reality as to be impossible to ridicule, Fuchs tells the court that Pike’s Sixth Amendment right to “the assistance of counsel for his defense” will be jeopardized unless he is forced to fire one of the best lawyers in Texas.
The entire Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
So far this case has lingered for a year without any noticeable progress. Most of it is secret. The government has not yet announced what actual evidence it has against Pike or his co-defendant John Portillo. So obviously, Fuchs couldn’t care less about Pike’s constitutional rights – except as a weapon to further stack the deck against Pike. Announcing “that two government witnesses were previously represented by Mr. Schaffer” Fuchs argues:
“The government anticipates that Mr. Schaffer will vigorously cross-examine these witnesses about the above events and his client’s role in perpetuating the review. Their honest responses will raise Mr. Schaffer’s involvement in the affairs of the enterprise. Mr. Schaffer through defense of his client could cast himself in the position of arguing his own credibility to the jury, or suggesting alternative interpretations of the contacts with the government witnesses. Under either scenario, Mr. Schaffer would be assuming the dual role of witness and advocate before the jury. He would place himself in the position of an unsworn witness and implicitly put his own credibility at issue. This creates detrimental consequences for both the government and the defendant.
“Assuming Mr. Schaffer is demonstrably innocent of any wrongdoing, Pike’s defense will nevertheless be impaired because Mr. Schaffer cannot cross-examine witnesses on these matters or question these witnesses’ credibility during summation without thereby becoming an unsworn witness. Moreover, the revelation that his attorney even might have been involved in furthering the enterprise’s objectives could surely prejudice Pike in the jury’s eyes. And Mr. Schaffer would be left in the position of defending his own actions and/or reputation at the potential expense of his client.”
“Pike’s defense will nevertheless be impaired because Mr. Schaffer cannot cross-examine witnesses on these matters or question these witnesses’ credibility during summation without thereby becoming an unsworn witness. Moreover, the revelation that his attorney even might have been involved in furthering the enterprise’s objectives could surely prejudice Pike in the jury’s eyes. And Mr. Schaffer would be left in the position of defending his own actions and/or reputation at the potential expense of his client.”
Special Agent Chad Lloyd
Fuch’s argument is almost all empty sophistry. But thin rays of truth leak out here and there.
For example, Fuchs refers to an affidavit by Drug Enforcement Agency Special Agent Chad Lloyd. Lloyd was apparently investigating the Bandidos at the time of the Twin Peaks brawl in May 2015. According to Lloyd, as reported by Fuchs:
“Multiple Bandidos OMO members will testify that Bandidos OMO members were required to turn in legal paperwork when they were arrested on criminal charges to higher-ranking members so that the paperwork could be reviewed for signs of cooperation. The paperwork was often taken to attorneys for professional opinions. Several members will testify that Mr. Schaffer was one of the attorneys that paperwork was taken to.”
“Two witnesses will testify that the Bandidos OMO maintained a retainer with Mr. Schaffer for future work in defending its leadership from criminal charges.”
“Two witnesses were previously represented by Mr. Schaffer on their own criminal cases. Neither witness will waive client confidentiality.”
And the current motion refers to another, sealed, motion entered into the (top secret and private) record on October 11. Apparently, one of the crimes Pike committed was viewing the video recordings of the Twin Peaks brawl. And the government thinks Schaffer might have been an accessory to that breach of official secrecy.
“The intercepted conversations involving the videotape evidence from Waco described in Attachment B of Doc. 143 at least arguably put Mr. Schaffer at direct odds with his client Pike,” Fuchs wrote. “While Mr. Schaffer has offered a specific denial of having facilitated the review of any video evidence, the communications of Pike, when read in context, arguably state the opposite. This clash creates a two-fold conflict for Mr. Schaffer: (1) he is again placed in a situation where he could become an unsworn witness and (2) a possible impropriety creates the potential that Mr. Schaffer’s personal interest will diverge from those of Pike.”
“‘Curiouser and curiouser’ cried Alice!”