Former Bandidos Motorcycle Club President Jeffrey Pike got some bad news yesterday.
First he found out, 14 months into the case, that he will have to find another lawyer. Since his indictment for racketeering was unsealed in January 2016, Pike has had the counsel of Kent Schaffer and James Kennedy. Schaffer is widely regarded as a legal lion. The prosecutor in the case, Eric Fuchs, is less deeply esteemed. Although he is canny. You have to hand Fuchs that.
In what may be the sleaziest prosecutorial game ever, Fuchs convinced a federal magistrate, a former federal defender named Henry Bemporad, to disqualify Schaffer and Kennedy. The reason for the disqualification was that Fuchs had found a couple of Bandidos who had once been advised by Schaffer and put them on his witness list. Bemporad decided that Schaffer had had a “substantial relationship” with the two unnamed witnesses. The general rule that defines a “substantial relationship” is that any lawyer who previously represented a client in a legal matter can’t represent somebody else in the same matter. The names of the witnesses, the matter about which Schaffer previously represented them and what they might have to say about Pike are all official secrets.
The simple matter is that Fuchs was overmatched against Schaffer so he found two former Bandidos who said they had been represented by Pike’s lawyer and put them on his witness list a year into the case. After multiple hearings and briefs Bemporad bought Fuchs’ argument and fired Schaffer and Kennedy. “The Disqualification Order noted that, though there is a presumption in favor of a criminal defendant’s counsel of choice, that presumption can be overcome by a showing that an actual conflict of interest exists, or the serious potential of a conflict of interest exists, even if the defendant offers to waive the actual or potential conflict.”
Pike and his lawyers appealed. Yesterday District Judge David Alan Ezra, who will hear the case if it ever goes to trial, ruled that Pike can’t be defended by the lawyers of his choice.
At about the same time that he was siding with the Fuchs against Pike, Ezra was unsealing the second superseding indictment in the case. Like the previous two indictments, this one is based on the accusation that the Bandidos is a criminal conspiracy and that Pike and former club vice president John Portillo – until yesterday the only defendants left in the case – are guilty of the crime of being criminals. Since the Turkette Supreme Court decision in June 1981, there has been a fatal illogicality in the Racketeer Influenced and Corrupt Organizations statute: Fatal not to the courts or prosecutors but to defendants. Federal prosecutors can indict anyone or any group they want for racketeering including the Boy Scouts or the Catholic Church. But the first big case filed after Turkette was against the Hells Angels and virtually every federal prosecution of motorcycle clubs since has used RICO.
The heart of RICO is the accusation of criminal conspiracy. Every organization can be described as a conspiracy. RICO is a cruel and potent weapon against motorcycle clubs because it takes relatively minor state crimes that might be punishable by a fine or short jail sentence and transmogrifies them into federal “predicate crimes” punishable by 20 years to life in prison.
The boiler plate with which Pike and Portillo are accused goes: They “and other persons not named in this Indictment, being persons employed by and associated with the Bandidos OMO, which enterprise was engaged in, and the activities of which affected, interstate and foreign commerce, did knowingly, willfully and unlawfully combine, conspire, confederate, and agree with one another to violate Title 18, United States Code, Section 1962( c ); that is, to conduct and participate, directly and indirectly, in the conduct of the affairs of said enterprise through a pattern of racketeering activity….”
Both Pike and Portillo have been charged all along with murder and the very first “overt act” in the indictment is “War with Cossacks Outlaw Motorcycle Organization,” although none of the indictments so far mentions Waco or the Twin Peaks. Federal prosecutors have been after the two men all along because they are club leaders and so they are big pelts. This case also distracts from what happened and is happening in Waco. And the way RICO cases bring federal prosecutors joy is by using the terrible punishments for federal crimes to coerce the accused into cooperating with prosecutors and accepting plea and bargaining agreements.
Two Old Murders
In the new indictment Portillo picked up an extra charge, of discharging a firearm during a murder in aid of racketeering of Robert Lara in January 2002. The Lara murder seems exhausted of possibilities. A former Bandido named Richard Steven “Scarface” Merla confessed to Lara’s murder in April 2007 and told his story in an episode of the History Channel series Gangland titled “Bandido Army,” that was first cablecast on October 17, 2008. Six years after the fact, Merla told a reality television producer that Portillo was involved. Eight years after that, but only six months after the Twin Peaks bloodbath in Waco, the Department of Justice decided to make a federal case out of it. Count on Merla reprising his performance on Gangland at Portillo’s trial should that ever occur.
Four more former Bandidos were indicted and arrested yesterday. Johnny “Downtown Johnny” Romo, Robert Romo, James “Kronic” Benavidez and Norberto “Hammer” Serna, Jr. are all accused of participating in the murder of Anthony Benesh in 2006. The indictment claims Benesh was murdered because he tried to start a Hells Angels charter in Austin. All the men are accused of discharging firearms during the murder. The Romos are also charged with murder in aid of racketeering.
Most news accounts have emphasized that Johnny Romo was arrested in Waco.
Wink, wink. Nod, nod. Connect the dots.
This story was originally published on March 3 and corrected on March 6 as follows: Johnny “Downtown Johnny” Romo, Robert Romo, James “Kronic” Benavidez and Norberto “Hammer” Serna, Jr. were, following the indictment, mistakenly identified as members of the Bandidos Motorcycle Club. They are all, in fact, former Bandidos. The Aging Rebel regrets the error.