If you are a biker, especially if you are a patch holder, you only have to read the next paragraph.
When your club gets hit with a RICO charge the first thing you should do is call an attorney is West Virginia named Deirdre H. Purdy. Her phone number is 304-655-7232. You may also find yourself in need of an expert witness to rebut the ridiculous things the ATF and the DOJ is saying about you. Your expert’s name is William L. Dulaney. And his phone number is 828-227-2329. You already know almost everything else in this article, whether you have ever actually bothered to say it out loud or not. Have a beer.
If you are a loyal reader who happens to be an FBI or an ATF Agent or a prosecuting attorney keep reading. No beer for you. Consider this is your final warning. Defense attorneys, do your damn job.
Everybody else. Your call.
The Pagans Case
Last fall, 55 members and associates of the Pagans Motorcycle Club were hit with a 44 count indictment that called the club a “racket.” A fistful of defendants, including former Pagans National Vice President Floyd B. “Jesse” Moore have already been bullied into “confessing” that the Pagans is a racket.
Specifically, the indictment (and a superseding indictment filed three weeks ago) describe the motorcycle club as “a criminal organization whose members and associates engaged in kidnapping, robbery, extortion and conspiracy to commit murder.” The indictments also state that “the purposes of the enterprise included…enriching the members and associates of the enterprise through, among other things, extortion, robbery and the operation of an illegal gambling business.”
A similar indictment with similar results was filed against the Mongols Motorcycle Club 17 months ago.
Earlier this month Purdy, who is one of the defense attorneys in the Pagans case, wrote a motion that attacked extensive passages in the indictment itself as “both irrelevant to the (actual) charges and prejudicial to the defendant(s).” Purdy characterized portions of the indictment as “surplusage” which is a legal way to pronounce bullshit.
Loew Strikes Back
Two weeks ago, on February 10th, Assistant United States Attorney Steven I. Loew, the author of the indictment, defended his choice of words.
Loew justified his colorful descriptions of the Pagans by arguing that, “The defendants are indicted for crimes they committed that were related to their membership in, and their association with, the Pagan Motorcycle Club, its support clubs and associates. The indictment charges that the defendants are a part of a criminal enterprise, and that those members, as individuals, committed crimes.”
Loew then went on to tell the judge in the case, Thomas Johnston, that “since all the defendants were members of the Pagans or one of its support clubs, it is obvious that describing the criminal enterprise is material and relevant to the charged offenses.”
Among the accusations in the indictment that Loew thinks are perfectly reasonable to throw around are:
Pagans Are Criminals
“The Pagans Motorcycle Club (PMC) was a national criminal organization located primarily in the eastern half of the United States.”
“The Pagans was territorial and protected its territory from rival motorcycle gangs through the use of violence and intimidation. Two of the Pagans’ main rival motorcycle gangs were the Hells Angels Motorcycle Club and the Outlaws Motorcycle Club. When members of rival motorcycles gangs, members of motorcycle clubs who associated with the rival motorcycle gangs, or people who wore clothing such as shirts or jackets with the names or logos of rival motorcycle gangs ventured into what the PMC considered to be its territory, PMC members and associates intimidated, threatened, attacked, beat, robbed, and sometimes killed them.”
“Once a week, usually on Saturday or Sunday evenings, these local chapters held weekly meetings referred to as ‘church.’ A full member of the Pagans MC could be identified by his ‘colors’ or ‘cut,’ which was a sleeveless denim jacket bearing several patches affixed at specific places. These patches included, but were not limited to, a patch containing the word ‘Pagans’ and a ‘1%’ patch. Members of the Mother Club wore a ‘13′ patch on their cut, signifying the traditional number of members in the Mother Club, and a 1% patch on the bottom back of their cut. Chapter presidents wore the 1% patch at the top back of their cut. The 1% patch signified the Pagans’ ‘outlaw’ status. ‘Outlaw’ motorcycle clubs took pride in themselves as the 1% of motorcycle riders who were not law abiding. Pagans members also owned various items of personal property bearing the word ‘Pagan’ or ‘Pagans’ and various logos, insignia, emblems, and slogans signifying their membership and status in the Pagans.”
Everybody Knows Pagans Are Criminals
“The Pagans made money from its support clubs,” the indictment continues, “and the Pagans Motorcycle Club increased its power and influence by having more support club members. Accordingly, the Pagans and its existing support clubs unlawfully threatened and intimidated people who wanted to start a motorcycle club in Pagans territory and attempted to get the people to support the PMC and to not support any of the Pagans’ rivals. Pagans and support club members would confront and intimidate law abiding citizens and force them to get ‘permission’ from the Pagans before starting even a lawful motorcycle club, and made them get ‘approval’ from the Pagans for the club’s name, logo, and the type of patches the lawful club could wear.”
Loew also thinks it is perfectly reasonable to state in an indictment that “The purposes of the enterprise included the following: a) Enriching the members and associates of the enterprise through, among other things, extortion, robbery, and operation of an illegal gambling business. b) Preserving and protecting the power and territory of the enterprise through the use of intimidation, violence, threats of violence, assaults, and other violent crimes. c) Keeping victims and rivals in fear of the enterprise
and in fear of the enterprise’s members and associates through threats of violence and through violence.”
Or Maybe Not
Purdy filed her reply a week later and she summarized the government’s argument as: “1) the Club is a criminal organization, 2) all defendants are members or quasi-members of the Club, and 3) therefore, all defendants are criminals. According to the Government, because the club is a ‘criminal enterprise’ and its members are all criminals, any and all descriptions of the club and its members, however prejudicial, are relevant and material to charges in the indictment. The street term for this argument is ‘guilt by association.'”
“Both the original and superseding indictments contain many highly prejudicial and irrelevant characterizations and descriptions of the Club and its members, their dress, customs, philosophy and beliefs, and curious symbols and insignia” which Purdy characterized as “scurrilous” and “unnecessary.”
Then she argues an obvious point that seems to have alluded each and every one of the attorneys in the Mongols case.
“RICO violations may be proved against individuals who do criminal acts within any legal organization or any association-in-fact. For example, pedophile Catholic priests performed criminal acts while associated with the Catholic church. Further, those pedophile priests were sheltered and protected from the law by church officials, who knew of the criminal acts but obstructed justice by hiding and not reporting them, while seeking to keep the church itself from stigma and reprehension. The acts of the church officials were done to maintain, enhance or protect the officials’ status within the Catholic church. Such activities, if proven, are RICO crimes, but a RICO conviction for those individuals would not make the Catholic church itself a criminal organization, much less an international criminal organization.”
Astoundingly Obvious Except To Police
Purdy raises another point that never seems to be said out loud in biker cases. “The Club is first and foremost a motorcycle club. Its members join to associate with others who love to ride motorcycles, particularly large Harley-Davidson motorcycles. They enjoy riding in groups, partying together, and admiring one and others’ motorcycles, motorcycle after-market paraphernalia, and motorcycle paint jobs. They often dress in leather pants and jackets which, despite the now-ancient association with biker movies and Marlon Brando, are actually extremely safe riding gear because leather provides excellent protection from road burn in an accident. Members attend motorcycle expos or conventions where dealers set up booths to sell bikes, clothes, seats, saddlebags, after-market parts, books and offer the myriad kinds of merchandise associated with motorcycle ownership, riding, and club membership. These are the purposes for which members join this club. It is not criminal to be a Pagan Motorcycle Club member.”
“No count of this indictment alleges any criminal activity by the Club itself because the club itself is not a defendant. For example, it is not alleged that the Club was involved in illegal drug sales or distribution. Instead, some club members used illegal drugs, which were not supplied by club members but by outsiders, including a government informant. Similarly, some club members were prohibited from owning guns, but owned them. All the violence and threats of violence in the indictment are charged against some club members. Knowing association with criminals for noncriminal purposes is not criminal.”
Purdy also challenges the whole motorcycle club as racket theory.
“The indictment charges the Club is nothing but a criminal enterprise and that its first criminal purpose is to ‘enrich the members and associates,’ she observes. But, “There is only one crime-for-money charged in this many-count indictment. It is charged that local clubs in Pennsylvania, New Jersey, Maryland, and Florida held motorcycle raffles and that sixteen defendants rode across various state lines to West Virginia with the raffle proceeds. According to the indictment, the raffle money was ‘proceeds of unlawful activity’ because the raffles were, for example, not registered with the appropriate secretaries of state. Even assuming, arguendo, that the raffle money actually was unlawful proceeds, all of that money was allegedly delivered only to two defendants: Defendants David Keith Barbeito and Floyd Moore. Assuming that the remaining 54 defendants purchased tickets, these defendants were not enriched, but impoverished by these transactions.”
The defense attorney contests the allegation that, “The second and third purported criminal purposes are preserving the power and territory of the enterprise while keeping victims and rivals in fear through threats of violence and through violence. The indictment sets these out as distinct criminal purposes, but actually they are simply two variant statements of the same idea, the Club’s purpose to preserve power and territory. Preserving power and territory are not criminal purposes per se. Almost every human organization shares these goals in some degree.”
Purdy also objects to the description of club members as “gang members” and calls that a violation of “each defendant’s First Amendment right to association for non-criminal purposes and each defendant’s Fifth Amendment due process right to the presumption of innocence.”
And finally she compares the virtually boiler plate language government attorneys have used to describe motorcycle clubs as, “…a good description of the Catholic church, the Boy Scouts, Home Depot and Federal Express….”
Wait It Gets Better
Finally, at long last, a defense attorney in a biker case actually says out loud.
“The surplusage portions of the indictment read like the promo for a new television series: Biker Gangs, Outlaw Rivals,” Purdy writes. “Defendants’ Fifth Amendment presumption of innocence is offended by the government’s press release approach to this case. The Government should try this case in the courtroom, not by calling names in the court of public opinion.”
Finally, Purdy challenges a greater giant than even she probably realizes. If the government insists on calling the Pagans a racket, she warns, the government better be able to prove it.
“The charges that the Club is a national criminal organization, a criminal enterprise, and a gang of outlaws are unnecessary, irrelevant, untrue, unsupported by the remainder of the indictment, and highly prejudicial,” Purdy writes. “If the Court does not strike this language as surplusage, Defendants move the Court to hold a hearing under Federal Rule of Evidence 104, concerning preliminary matters, and require the Government to prove by a preponderance of the evidence that the club is a national criminal organization and that all of its members are ipso facto criminals.”
And, then to back that up, Purdy tells the court she is ready to call an expert witness.
The expert is Dulaney. In most of these cases the “expert” is either an ATF Agent who has made a career of harassing bikers, someone like John Ciccone, Darrin Koslowski or Jay Dobyns, or an out and out fruit cake like Chuck Schoville from International Outlaw Motorcycle Gang Investigators Association. Dulaney is a professor at Western Carolina University.
His doctoral dissertation was titled, Over the Edge and into the Abyss: The Communication of Organizational Identity in an Outlaw Motorcycle Club. And the chances are good that you have seen him on television.
Dulaney has been interviewed on camera for three biker exposes on The National Geographic Channel: Inside the Outlaws, Bandido Nation and Women in the Outlaw Biker World. A fourth program for the same network called The Biker’s Rub is in production. Dulaney also appeared on the Gangland episode The Outlaws and in a Biography Channel episode titled The Hells Angels. Dulaney is also the author of a reasonably informed history of motorcycle clubs that appeared in the International Journal of Motorcycles Studies.
He introduces himself to the court by explaining, “My research agenda includes comparing government, law enforcement, and media claims about motorcycle clubs with socially valid evidence. The result of this inquiry overwhelmingly shows that media and law enforcement paint an inaccurate picture of motorcycle clubs, one that is stuck in the past and does not represent the contemporary reality of motorcycling organizations.”
What Dulaney Will Testify
Dulaney has already summarized, “testimony that I would be prepared to offer and further support at a trial or hearing on this matter, if the Court qualifies me as an expert.”
Among the highlights of what he is prepared to testify are:
“The Pagans Motorcycle Club (PMC) is not a criminal organization or a national criminal organization. Instead, the PMC is best described as a series of motorcycle organizations predominately scattered across the Eastern United States whose members are overwhelmingly not criminals. The PMC is a relatively small motorcycle club with chapters coming into and out of existence over time in locations limited to Florida, West Virginia, Eastern Pennsylvania, Ohio, Maryland, Delaware, New York, and Kentucky.”
“Beginning in the 1970s, throughout the 1980s, and ending in the mid-1990s, some individuals who rose to prominence and leadership positions in motorcycle clubs were involved in organized crime; however, federal prosecutions at the time largely eliminated such activities.”
Motorcycles, Raffles And Territory
“Many PMC members’ lives revolve almost entirely around the sport of motorcycling…. Members also experience great satisfaction working on their motorcycles to enhance the appearance and performance of their machines, which in turn enhances the status a member enjoys in motorcycle culture in general. Criminal activity does not enhance one’s status in the organization. This is a myth associated with ‘biker gang’ stories.”
“Raffling off motorcycles is a common fund-raising activity within the PMC and other motorcycle clubs. It is not understood by members as a ‘scheme,’ in the sense of being an illegal activity. (I do not personally know whether each raffle charged herein was managed according to the particular laws of each state where it was held.) My point is that presumptively legal raffles are commonplace in motorcycle culture generally. Funds raised from these events are almost always used for charity causes, ranging from internationally-recognized organizations, such as United Way, to local motorcyclists’ or club members’ family with serious illnesses. Motorcycle raffles and other fund raising events, such as annual Christmas Toy Runs and Blood Runs for the Red Cross are one of the reasons members join motorcycle clubs like the PMC.”
“Motorcycle clubs do establish themselves in certain areas or territories, but the extent of ‘territories’ serves mainly to limit or negate interaction with other motorcycle clubs. Most of this territoriality expresses itself symbolically, through the wearing of patches or other symbols associated one club rather than another. The PMC’s colors appear more like a mechanic’s uniform than “outlaw” club colors, and the PMC does not include a territory patch (e.g., bottom rocker) in their club colors. Such territoriality is also associated with volunteer fire departments, 4-H clubs and Moose, Elk and Rotary Clubs, Masonic Lodges, and other civic organizations.”
“There is a hierarchy that defines general motorcycle club culture. It is taught to and known by all as “motorcycle club etiquette.” Motorcycle club etiquette is simply one form of rules that all unique cultures or sub-cultures create in order to preserve peaceful coexistence. The one-percent clubs represent the pinnacle of the culture and so are responsible for keeping order in their territories. Established clubs may warn newcomers about the symbolic meaning of certain colors or patches to protect them from making errors from ignorance.”
“The Indictment states that the ‘PMC had clearly established ties to other motorcycle clubs . . . used to facilitate illegal activity.’ In fact, the opposite is true, in that the most dominant club in an area has a duty of keeping the peace among clubs in the area. Motorcycle club etiquette, mentioned above, can be described as a form of speech code that members of a culture or sub-culture must understand in order to belong to that culture. This is true of many well-known organizations, some considered ‘secret societies,’ such as Masonic Lodges and university fraternities and sororities. The PMC must enforce the rules of the culture – rules they did not create – in order for all other motorcycle clubs subordinate to them to operate without disturbance or disagreements within a given territory.”
“My purpose (in testifying)” Dulaney concludes, would be “to provide an accurate portrayal of the Pagan Motorcycle Club and to point out that images from popular culture appear to have colored the creation of the descriptions of the PMC in the indictment.”