Defense attorneys in the Pagans case last week began filing motions that challenge the prosecution’s basic argument: Which is that motorcycle clubs are criminal enterprises and the way to outlaw them is by using the Racketeer Influenced Corrupt Organization (RICO) statute.
Three defendants, Martin Nuss, Christopher T. Brunner and Daniel J. Reilly all sought to sever their cases from the 44 Count racketeering indictment returned by a Federal Grand Jury last September 29th. That indictment charges 55 defendants with being part of a criminal enterprise that committed robbery, extortion, drug dealing, conspiracy to commit murder, arson, witness tampering and possession of explosives.
All Nuss, Brunner and Reilly are actually accused of doing is helping to run a club raffle. The motions all assert that these three men “will suffer a ‘substantial degree of prejudice’” if they are tried with the other defendants “for a conglomeration of distinct and separate offenses committed by others.” The motions all cite a 1946 case, Kotteakos v. United States, which ruled that “defendants have a ‘substantial right’ not to be tried en masse for a ‘conglomeration of distinct and separate offenses committed by others.’”
Last Friday, 18 other defendants filed a motion that attacked extensive passages in the indictment itself as “both irrelevant to the (actual) charges and prejudicial to the defendant(s).”
The motion asks the judge in the case, Thomas E. Johnston, to “strike surplusage” in the indictment. The legal term surplusage is commonly defined to mean “extraneous matter,” “allegations that are irrelevant” to a case and matter “wholly foreign and irrelevant to the merits of” a case. The surplusage this motion wants removed includes various colorful embellishments that are designed to paint the Pagans Motorcycle Club in the worst possible light.
These dazzling overstatements get tossed out like big shrimp and free scotch to gullible reporters who then swallow them whole. The strategy betrays a sophisticated and sympathetic comprehension of the working press and so far it is working beautifully. Not a bit of the press coverage of the Pagans case has been exactly reminiscent of H.L. Mencken.
The indictments in both the Mongols and Pagans cases, the two major motorcycle club cases prosecuted in the last year, are larded with surplusage. No Mongols attorney ever asked the judge to edit that indictment but rule 7(d) of the Federal Rules of Criminal Procedure does allow the deletion of surplusage from a criminal indictment.
Friday’s motion also asserts that federal case law forbids surplusage because these accusations tend to be “prejudicial allegations that are neither relevant nor material to the charges made in the indictment. . . or not essential to the charge, . . . or unnecessary, or inflammatory.”
Proclaiming Motorcycle Clubs Rackets
The racketeering case against the Pagans, like other recent cases, assumes that motorcycle clubs must be rackets because belonging to a motorcycle club means participating in a racket because motorcycle clubs are rackets. The substantiation for such assumptions are usually amateurishly contrived fictions disseminated by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The ATF makes up a damning story, grants “exclusive access” to the story to an “infotainment outlet” like America’s Most Wanted or Gangland, then propagandizes the reported story as if it were objective fact.
This page previously reported an example of this propagandizing when an ATF Agent named Darrin Kozlowski who had infiltrated and participated in corrupting the Mongols Motorcycle Club, gave a sworn statement substantiated by material from “a nationally televised episode of the series Gangland.”
The Surplusage Motion
The motion filed Friday complains that the indictment unreasonably includes accusations about the Pagans Motorcycle Club such as:
(The Pagans Motorcycle Club is) “…a national criminal organization whose members functioned as a continuing unit for the common purposes of enriching club members through illegal activities, controlling territory, and keeping victims and rivals in fear. The Club is ‘territorial’ and does ‘violent crimes’ to ‘keep control over other motorcycle gangs in various part of the United States of America.’ Club members go to ‘church’ and wear certain ‘colors’ and ‘cuts.’ Club members ‘take pride in themselves as the one percent of motorcycle riders who were (sic) not law abiding.’ Club members own personal property bearing the word ‘Pagans.’ Two of the Club’s main rival ‘gangs’ were the Hells Angels and the Outlaws. Club members and associates ‘sometimes killed’ people who ‘ventured into Pagans territory.’”
The motion protests that, “A majority of such statements…including these, are irrelevant under (federal procedural) Rule 401 because they allege facts of no consequence to the determination of guilt on the charged conduct…. It is irrelevant what the enterprise’s members wore, their religious or cultural beliefs, their supposed ‘rivals,’ or how new members joined. These fulsome descriptions are not only irrelevant and immaterial, but they are equally prejudicial and inflammatory. Rule 7(d) requires the Court strike these portions of the indictment as surplusage.”
“In both conspiracy and association-in-fact RICO prosecutions,” the motion continues, “there is a ‘special danger’ that guilt will be assessed ‘solely by (a defendant’s) association’ with the allegedly criminal enterprise and not on an ‘individual and personal’ basis. To avoid guilt by association (‘all Pagans are criminals’), the Government must show that each individual associate was animated by a ‘common purpose,’ demonstrated by evidence of an ‘ongoing organization’ for which the associates carried out criminal acts…. Our Constitution protects freedom of non-criminal association. Yet multiple paragraphs of this Indictment describe activities that the First Amendment protects and that are irrelevant to guilt or innocence on the RICO-related criminal charges.”
Whether Judge Johnston is going to buy any of this or not remains to be seen. But the consequences of his ruling, whichever way it goes, will effect more than just this one case.