More Bandidos Accusations

March 3, 2017

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More Bandidos Accusations

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.

Prosecutorial Game

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.

Superseding Indictment

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.

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17 Responses to “More Bandidos Accusations”

  1. Iron Rider Says:

    @Sieg

    That’s the thing about RICO cases and the Feds is that then can have RICO hanging over someone for a long time, and the Feds use it to there advantage. As for Federal pens as far as the Feds are concerned there is always room for one more

  2. Sieg Says:

    Iron Rider, look up the stats on the conviction rates in FedCoat court, and then talk about people getting shafted.

    RICO has been used against PH, Bangers, Outfit types, you name it. Check out the population in Florence AdMax, or USP Allenwood, or USP Marion. Motherfucker buried forever. It’s not that they doen’t use RICO against bangers and such, it’s just that Larry Hoover, Jeff Fort, all those boys are already down for life, and they don’t need RICO to put Willie bin Willie away forever.

    FTF/FTP
    TOSIAR

  3. Neuro Says:

    How can anyone be charged with murder when this was a clear case of suicide ?

  4. Iron Rider Says:

    @Dutchboy

    The Feds love to use RICO because it is like a catch all for them. RICO was born to be used against the Mafia, but the Feds expanded that use to all sorts of cases since RICO’s inception++

  5. Badd Guye Says:

    Just a bit odd, 4 people charged with discharging a firearm in an incident where a single man was killed with a single shot sniper style.

    http://www.austinchronicle.com/news/2006-05-19/366344/

  6. LBB Says:

    Benesh was killed with a single bullet from a high powered rifle from a distance. How are 4 men accused of discharging a weapon if there was only one shot?

  7. Dutchboy Says:

    RICO as currently used is a direct violation of the first amendment in that it criminalizes association. “Do you know X who is a member of Y MC?”. “Why yes I do, his mom goes to my church and I sold a motorcycle to him.”. “You are under arrest for conspiracy.”. What a crock.

  8. Iron Rider Says:

    @ Sieg

    I’m certainly not a jailhouse lawyer, opinionated…sure…jailhouse lawyer not so much. That being said though It’s unusual to have a hearing to try and disqualify a lawyer from representing a client with the effected lawyer not having any counsel or being allowed themselves to present their argument to counter the prosecutions. Has a defendants counsel been booted from a case before, sure it has happened.

    Bruce Cutler was booted from John Gotti’s case that got John sent up, because like Pike the prosecution said Cutler was too involved and had represented other s associated to Gotti, the Prosecution also asked to remove another three lawyers who defended other Gotti associates.

    Do I believe removing Schaffer will be grounds for an appeal, I do. Will that appeal be successful is the question. There is a lot of prosecutroial misconduct that has taken place all over the U.S. in different courts. Reyna I believe will have a place in that chapter, will Fuchs? Who knows but I dont agree with holding a hearing to disqualify counsel and having it be one sided with testimony given by a witness and alleging facts but not allowing opposing counsel to have their own lawyers to argue their position doesnt sit well with me.

    Are the judges in the courts impartial, hell no. I dont believe it has been that way for god knows how long and that’s due to the fact that Law Enforcement and Prosecutors and the courts are too entwined to be impartial, but that’s a whole different story.

    Look at the FISA court, when the USDOJ goes to the FISA court for the longest time it was a one sided affair and usually what the USDOJ asked for from the court, it got. It came out in reports that the FISA court had never ruled against the USDOJ in the matters it brought before it, and that was due because there was no one there to argue against the USDOJ’s position, so whatever the USDOJ asked for was pretty much rubber stamped.

    It wasn’t until the FISA courts approval record came out that the legal community started being vocal about that and the media picked it up that it was then decided by the Government that 6 to 8 lawyers (cant recall the exact number) would be appointed after all the necessary security clearances were approved that these 6 to 8 would be there to put forth a counter position to the USDOJ’s presentation to the FISA court on the issues before it, such as with surveillance issues etc.

    Is it the prosecutions job to stick to the people they prosecute, sure we all know that, but they shouldnt be allowed to break the law and pull the bullshit tactics and outright lie and mislead the defense or the courts in my opinion.

    There are many cases that are documented where the prosecution has played fast and loose with the rules in cases before the courts, in my eyes Pike’s case is another one you can add to that list. Reyna and his cronies may just rocket to the top of that list with all the shit that is going on in the twin peaks case.

    I will always advocate for those whose rights are being trampled on, even more so by the justice system and those who’s lives are effected by it because it can cost them their jobs, their homes, their families and even their lives not to mention their liberty. I’ve seen first hand the tricks Law Enforcement plays in cases from the get go and the prosecution plays with the facts before the court and it’s become so common place it isnt even funny.

    My opinions are just that my opinion, just like everyone else has their’s. Some folks are going to like what others say, some aren’t and some just express their own and dont really worry about anyone else’s at all…lol but it goes like that.

    I hate to see anyone get a raw deal, and these days there seems to be a lot of underhanded shit going around and it’s only getting worse if your facing the justice system cause the scales are getting way too tilted in the Governments favor for my liking.

  9. Tom Barker Says:

    The discrimintory use of RICO prosecutions extends farther than Bikers and includes Hispanic and Black “gang” members. The possible criminal penalties induces all those indicted to implicate other defendants. The first rat gets the best deal. It will be revealing to see who among the indicted Bandidos “rats” the others out. As law enforcement authorities claim RICO is the best weapon against gangs, I would add even if they are not criminal gangs.

  10. Stoney Says:

    its the same thing they did to Gotti. Get rid of the good lawyer so they can win. What a corrupt system we have now. BTW I’m no fan of Gotti but right is right and wrong is wrong.

  11. BMW Says:

    Persecutors who realize that they don’t have a good case just keep throwing mud at the wall, hoping something sticks…and since judges are almost always former Big Business counsel or former persecutors, they wink, nod and acquiesce. In court, persecutors have two main strategies for obtaining a successful persecution. (Ironically, neither have ANYTHING to do with guilt). Either they utilize an appeal to emotions, or, they create a very long laundry list of charges to batter a tired jury into voting for conviction on some charge…any charge.

    There are relatively few good criminal defense attorneys in the USA. The real money is in civil litigation. Only a handful of courtroom advocates are even worth hiring.

    Our high school civics classes and television depict something very different, but anyone who has been the target of government persecution– on the right, left or middle of the political divisions–knows better.

    FREE THE INNOCENT VICTIMS OF THE WHACO INJUSTICE INDUSTRY!
    BMW

  12. Phuquehed Says:

    @Sieg – Right on the nose, breaking it and blacking both eyes!

  13. Sieg Says:

    And then ANOTHER superseding indictment fell out of the tree…

    Just keep throwing the shit out there, something will stick. If they sense momentum is slowing, they can always rack a few more charges up, maybe remember a movie they saw where someone got smoked, charge em with that, too.

    Iron Rider, all you other jailhouse lawyers here, give it up. There is no justice. There will BE no justice. No slick lawyer is going to come in, get all the rulings overturned, wave a copy of the Constitution and get them off. I’m not being a defeatist, or trying to put the bad on these Brothers, or any of that, but face the facts-they’re gonna bury them. IT’s life in the House of Do-Right, and that’s if they’re lucky.

    The only argument that’s going to change the courts mind about any case now is going to be one made in 147 grain increments.

    Time has come to stop arguing and making noise, and to start quietly cooperating with each other and making preparations.

    FTF/FTP
    TOSIAR

  14. Filburt Says:

    Branch Davidian siege replay!

  15. Paladin Says:

    Reading this story reminded of a case I worked on where a motorcycle enthusiast found himself sitting at the government’s table, having to draw to an inside straight while playing against the house. That day, the moon and stars aligned and our motorcycled enthusiast was acquitted.

    As we left the courthouse, our client turned to me and exclaimed, “We beat the fuckers!” I replied, “You won the hand you played. You beat no one.” He looked at me and asked, “What are you talking about?” It was then that I told him the following story.

    A salesman was traveling a country road when he happened upon a farmer in the front yard of his home. The farmer was slowly walking around a huge apple tree with a pig under each arm, allowing the pigs to eat the apples off the tree.

    After watching this for a few minutes, the thoughtful salesman said to the farmer, “If you were to shake the tree, the apples would fall to the ground. Then, the pigs could eat the apples whenever they wanted. It would save a lot of time. The farmer looked at the salesman, smiled and said, “Shit son, time don’t mean nothin’ to the pigs.

    Paladin

  16. Iron Rider Says:

    I still believe that Fuch’s getting the hearing and so called evidence to have Schaffer not be allowed to represent Pike in secret without and of Pike’s lawyers allowed to rebut Fuch’s evidence and Fuch’s witnesses testimony a farce.

    The mere fact that the defense was not allowed to be at the hearing and argue why their client should be allowed to have his chosen counsel represent him in the matters before the court. While very defendant is allowed to have a lawyer even if they can not afford one and they dont really get a choice with Public Defenders, this is a case where Pike is paying for his own counsel and as such is entitled to the counsel of his choosing.

    If Fuch’s doesn’t believe he can win against Schaffer then maybe he ought to go find a job flipping burgers or have the balls to tell his superiors that he doesn’t have what it takes to beat Schaffer and needs help or transferred off this case and be put on the one where the neighbors dog humped the other neighbors lawn elf statue.

    The fact that the Judge allowed a hearing and didnt allow any of Pikes legal team to hear what evidence is against them or to argue against Fuch’s position is unfair and gives the prosecution a tactical advantage, not to mention this is going to set Pikes case back as his new lawyers are going to need to delay any type of trial so they can sift through all the evidence and disclosure to get up to speed on the case against Pike which is going to cost the taxpayers more money in the end.

    You can bet that Fuch’s getting this hearing in secret and the testimony of a witness with NO one there from the defense to argue against Schaffer being disallowed to represent his client will be grounds for an appeal and rightly so.

  17. Phuquehed Says:

    Fucking coward pigs, prosecutors…I mean persecutors, and judges. Cowards. Not a one with any sense of honor so they feel no shame in the criminality of their own actions that are worse than what they’re railroading other people for.

    They all need to get fucked with a joshua tree then dropped in shark-infested waters. If anyone cries for them out loud, that useless fuck gets the same too. And the shit-stains wonder why the country hate them so much.

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