Seventeen months into the war of legal attrition called United States versus Ruben “Doc” Cavazos and others; after three Judges, two United States Attorneys, and at least 62 plea agreements; thirteen months after the first of those plea deals, with Doc Cavazos, was signed on January 22, 2009; a week after Doc’s current attorney asked to take another look at his client’s guilty plea; a month after the last of those plea deals, with William Owens, was signed on February 1, 2010; with six of those agreements still sealed; it might finally be appropriate to consider how many of those plea and sentencing deals are actually legal under the laws of the United States of America.
The Mongols case is being prosecuted as a federal case under the Racketeer Influenced and Corrupt Organizations (RICO) statute. RICO was named for an imaginary gangster in an old movie and the original intent of the law was to prohibit “organized crime” from going legitimate and therefore hiding behind the legal technicality of innocence.
Until the Reagan Administration, the law was aimed at the so called Italian “Mafia” and the meaning of “enterprise” within the law was understood to mean a legitimate business that had been corrupted by “organized crime.” In 1981, the Supreme Court redefined the law by redefining what the word “enterprise” meant within that law. After the decision US v. Turkette in 1981, “enterprise” was interpreted to mean the “organized criminal organization” itself. And, that was when RICO began to be used against motorcycle clubs.
Most crimes committed by members of motorcycle clubs are state crimes: Minor and serious assaults up to and including murder, possession and sale of contraband, a boyish fascination with things that go boom, intoxication, disorderliness and the violation of numerous traffic laws and so on. The RICO statute provides a gateway for self-perpetuating federal police bureaucracies, like the Bureau of Alcohol, Tobacco, Firearms and Explosives, to “investigate” these clubs and connect individual, factually unconnected, events into a pattern of criminality. The connection is itself almost always a fiction.
The Infamous Sawyer Criminal Enterprise
Regular readers of this page and other literature lovers probably remember the description of a patching in ceremony by which a prospect formally joined the infamous Sawyer Criminal Enterprise.
“So Tom gave out a sheet of paper that he had wrote the oath on, and read it,” Mark Twain wrote in Huckleberry Finn. “It swore every boy to stick to the band, and never tell any of the secrets; and if anybody done anything to any boy in the band, whichever boy was ordered to kill that person and his family must do it, and he musn’t sleep till he had killed them and hacked a cross in their breasts, which was the sign of the band. And nobody that didn’t belong to the band could use that mark, and if he did he must be sued, and if he done it again he must be killed. And if anybody that belonged to the band told the secrets, he must have his throat cut, and then have his carcass burnt up and the ashes scattered all around, and his name blotted off the list with blood and never mentioned again by the gang, but have a curse put on it and be forgot, for ever.
“Everybody said it was a real beautiful oath, and asked Tom if he got it out of his own head. He said, some of it, but the rest was out of pirate books, and robber books, and every gang that was high-toned had it.”
The Infamous Mongols Criminal Enterprise
It is quite possible that if the government locked Tom Sawyer up for a year, took everything he owned away from him, and threatened him with 20 more years of the same he would willingly confess to being a “person employed by and associated with the Sawyer criminal enterprise, which enterprise engaged in and the activities of which affected interstate and foreign commerce, unlawfully and knowingly combined, conspired, confederated, and agreed together and with each other to violate
Title 18, United States Code, Section 1962, that is, to conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity….”
Tom’s lawyer might tell him to cop to Count One and take the three years just to get it over with. Just so he wouldn’t have to sleep on a concrete floor and eat baloney for dinner anymore. Just so he wouldn’t have to listen to Aunt Polly and Becky Thatcher sob on the phone anymore.
That is exactly what has happened in the Mongols case. The Mongols are not an organized criminal enterprise. Nobody thinks they are. Neither the ATF Agents who made the case nor the federal prosecutors who wrote the guilty pleas believe the Mongols are a racket. It is all a legal fiction to give the ATF a public relations victory and get the case finished before there is a real trial and some smart-ass lawyer starts turning over the rocks.
And, that might, theoretically be a problem. Not that it will be but it might be.
Factual Basis For A Plea
Because, in order to stick, a guilty plea must be provably true and, as of yet, the United States has not proven the existence of a “Mongols Criminal Enterprise;” possibly because there never was a “Mongols Criminal Enterprise.” The proof of the existence of that enterprise is “description” in the indictment and the obviously coerced admissions of scores of weary defendants that they were part of it.
The pattern of coercion has been almost palpable. The most photographic proof that the pleas were coerced may be the case record: A series of sealed pleas calculated to unnerve the defendants all the way up until the middle of April 2009; then the pleas began to leak out as the defendants lost hope; four pleas that April; thirteen pleas including two sealed pleas in June; four in July; two in August; eleven more in September; eleven more around the anniversary of the indictment; three pleas, one of them sealed in November; two more in December; three in January; another last month.
All of these men confessed to “predicate acts,” individual local crimes, but they all pled guilty to being racketeers. And in most, but not all these cases, the predicate acts had nothing to do with the Mongols Motorcycle Club except that the men who committed them were members of the Mongols at the time. None of the drug deals, for example, were Mongols deals. They were individual deals.
This should not be a federal case. It is a federal case only because it was investigated by the ATF. But then, the ATF has made this federal bed.
Ironically, under federal law virtually none of these men can legally confess to Count One even if they wanted to. Their confessions themselves are illegal under federal law because they are not factually true.
And, it was also a violation of Federal Rules of Procedure for their attorneys to advise them to plead guilty to the RICO charge in the first place because the actual existence of a “Mongols Criminal Enterprise” has never been proven. Advising their clients to plead guilty would have been and ethical and legal violation because at time of the pleas those attorneys knew or should have known that a legal defense to the RICO charge existed. And that defense would have been a simple demand that the prosecution prove that such a racket factually existed in the first place.