Is The Whole Pagans Case Surplusage

January 25, 2010

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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.

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55 Responses to “Is The Whole Pagans Case Surplusage”

  1. DocB Says:

    Dear Not Suprised
    “I recall a fairly famous incident in the early 1960’s when the Kennedy Justice Dept deported a well-known crime figure for violating “The Migratory Bird Act” (with a potential penalty of 5 years in prison) because they had nothing else to indict him on.

    Such seems to be the case here.”

    I think when word came down from the top to shit or get off the pot, they just went with what they had on hand, instead of waiting until they could build a better case. Who knows what they’ll get from the guys that turned over.

    I agree. They tend to criminalize everything and federalize all crime.
    It’s out of controol. I don’t think anybody in this country will be any safer no mater what the outcome of this case.


  2. Not Surprised Says:


    Very familiar with the James Hicks killing. Very.

    Here is the way I see it. Say your Boss wants to fire you. Everyone takes a few office supplies home now and then, including you, despite there being a written blurb about it in the employee handbook.

    Maybe he wants someone else to have your position, maybe he doesn’t like you. After working a little late one day, you snag a box of paper clips because your kid asked you to get some for a school project and hey, you’re already late.

    The next day the human resources officer and your boss ask you to “come in and sit down.” You are shown your signature acknowledging receipt of the employee handbook. You are then told you were seen by an anonymous witness pocketing a box of paper clips. you are told you are terminated for cause: theft of company property.

    You have no recourse. you are offered no severance pay and further, you are not now entitled to unemployment compensation. In addition to this, your termination will be documented as part of your permanent personnel file.

    Security escorts you to your vehicle and confiscates your keys.

    Shit like this happens daily in corporate America.

    I agree with you that the Federal Government acted in just such a trivial and arbitrary manner, and it is despicable, chickenshit.

  3. RVN69 Says:

    Not Surprised,
    I apoligize for not knowing that your are very familiar with both the James Hicks case and the Derek Hale case, didn’t do my recon! Those two cases of Police execution cry out for intervention by one of those groups that keep the pressure on the court for justice. I won’t hold by breath, both these men have been throughly demonized by the press for their club membership. As I am sure you know the papers that covered both murders were full of comments from citizens to the effect that “the got what they deserved”. I find it sad and disheartening that in a country founded on personal freedom and responsibility over 30% of the public wants this type society. How many times do you hear people say about everything they disagree with, “There should be a law against that” Seems like soon they will get their wish, wonder how they will like it when it applies to them.


  4. BDOPC Says:

    When will the 1%er world wake up and see who it is ratting out to the Feds. and the State and local cops.These people have been doing this for at the least four decades if not longer. I have seen them put up wannabes to murder my Brothers, while promising them their colors for their act’s. These people say one thing to the world at large and do the exact opposite of what they publicly proclaimed to what they say. People, do not be fooled by their statements or their drive for power, and money. I am a old time 1% er who still believes in the word Brother, not BRO or BEND RIGHT OVER and will stand next to any man who stays true to what the true meaning of what 1% er truly means. L.P.D.P stay the fight and do not let anyone tell you different

  5. sawedoff5 Says:

    That “surpluses” stuff isn’t even evidence. It’s like something from “Gossip Girl” stuffed into an indictment. Seen that alot of times and some judges eat it up.
    Most of it is (supposed to be) inadmissable in court.
    Lots of Prosecutors pull that shit in front of jurys if they have a judge that will let them get away with it.
    They love bringing up secondhand or third or fourth hand old stories about what the Pagan’s have done in the past. Jurys wet themselves over “bad guy with bike” stories.
    It’s do fucking stupid.
    It reads like the “neener neeener neener” prosecution.

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