A hurricane of paper has been hammering the Pagans case for weeks. Maybe the prosecution isn’t ruined yet but the shingles are flying off. The shutters are flapping like wings. The doors are chattering against their frames. And in the odd moment when you can see through all those flying defense motions it looks like United States of America versus David Keith Barbeito et al. might just collapse into one big pile of prosecutorial overreach.
Unless you are Alan Dershowitz, the case is impossible to comprehend at a glance or summarize in a few hundred words. But a few landmarks do stand out.
The lead agency in the investigation of this case seems to have been the Federal Bureau of Investigation. And somewhere Ken Melson, Acting Director of the ATF, must be laughing and drinking and slow rolling the funky boogaloo because of that.
The FBI chose to investigate the case with confidential informants. So the good news is that no Special Agents got stoned or killed anybody or raped anybody in the course of this investigation. The bad news is that the case was investigated with confidential informants.
Three of those informants actually worked for the Bureau of Alcohol, Tobacco, Firearms and Explosives and they typify the high standards men must meet before they qualify to wear one of those prestigious rat suits. The Charleston, West Virginia spy for the ATF, for example, was a bi-polar veteran of the Ku Klux Klan who supplemented his ATF money with gun and drug sales. And, he seems to have been addicted to both Adderall (you know, good, legal speed) and cocaine (bad, illegal speed.)
Let’s Meet Bachelor Number Two
The principal informant was code named Sutar by his FBI handlers. Sutar was an agent provocateur who might have actually criminalized the Pagans if only he had had a slightly higher IQ. He has never been publically identified because government prosecutors always uses every scrap of information strategically -as Hitler used radio.
But three and a half months ago a West Coast source unconnected to the Pagans case indentified Sutar as Ronnie Howerton. So there seems to be no reason that you should also not know that Sutar turns around when you call out the name “Ronnie.”
Howerton was paid at least $200,000 by the FBI and possibly much more. He probably worked for the FBI for six years. He supplemented his government income with a stolen motorcycle business. He also had an expense account. Much of the evidence in the case, much more than can be elaborated here – including evidence of the collection of explosives with which to murder Hells Angels and evidence of an attempted murder conspiracy- is only Howerton’s good word. Consequently, many pages of motions in the last month have been written to try to determine what the government knew about Howerton and when.
This page has looked, and for the time being there does not seem to be much of a connection between the ATF investigation of the Mongols Motorcycle Club and the Pagans case. The investigations overlapped in time. The ATF was involved in both. Officers of both clubs shared adult beverages on at least two occasions. Ronnie Howerton attended one of those cocktail hours. So did Robert Lawrence “Lars” Wilson III who was the “right hand man” of former Mongols President Ruben “Doc” Cavazos.
Lars Wilson was the World Chapter President of the Mongols and he came to that lofty title after what seem to have been brief stints with the Loners Motorcycle Club and the Hells Angels Motorcycle Club. Wilson had a confidant in the Mongols named Coconut Dan Corrigan who became a paid ATF informant in 2006. And Wilson had an apparent affection for and affinity with the Pagans. Wilson left the Mongols with the intention of starting his own Pagans chapter.
He was arrested after the Mongols indictment was unsealed and he pled guilty to racketeering on March 27th, 2009. He is known to be cooperating with federal officials to convict other defendants. Last July, he was scheduled to be moved to the Federal Correctional Institution at Elkton, which is in Ohio about 45 miles northwest of Pittsburgh. One objective of the move was to allow Wilson to assist investigators there. The move was cancelled or possibly postponed.
Wilson’s plea and sentencing agreement has never entered the public record. The fact that he pled guilty a year ago remains a pro forma state secret.
In late January, defendants began attacking the conspiracy element which is the foundation of the federal case.
Other than the crimes observed by Inspector Sutar, the defendants are accused of carrying guns, knowing how to load and clean guns, knowing how to not shoot oneself in the foot with a gun, maintaining jealous control of Pagans patches and other indicia, buying raffle tickets, selling raffle tickets and carrying money collected from the sale of raffle tickets across state lines.
As absurd as this list may sound it should not obscure the less funny fact that two Pagans have already died as a result of this prosecution. Charles H. Nichols died in federal custody and James Hicks was shot and killed in front of his wife by a SWAT Team during service of a search warrant for Pagans indicia.
The most confrontative defense motion to date was a request 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 Pagans indictments, as is the case with all motorcycle club indictments, overflow with references to the inherent criminal nature of the Pagan outlaws. The indictment may be based on an as yet unproduced script by Roger Corman. Virtually no biker stereotype goes unsaid.
One of the defense attorneys described the logic of the indictment as: “The Club is a criminal organization; all defendants are members or quasi-members of the Club; therefore, all defendants are criminals.”
“According to the Government,” the attorney continued, “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.'”
And the attorney accused the prosecution of violating the accused’s presumption of innocence. The judge has yet to rule on that motion.
Most of the 38 defendants, have moved to have their cases severed from one another. The case is unequivocally more than one case. It is “the Pagans Case” simply because that is the way the Department of Justice, for maximum mass media effect, has chosen to imagine it.
The government hypothesizes a great Pagans Motorcycle Club “criminal enterprise” which can be prosecuted under the Racketeer Influenced Criminal Organization statute. For the last 25 years the government has used this statute to try to accomplish a de facto and unconstitutional Writ of Attainder against motorcycle clubs.
In order to prove that a defendant participated in the “criminal enterprise” individual crimes, called “predicates,” in “furtherance of” the enterprise must be proved. The usual tactic in these cases is to throw truckloads of evidence at the defense attorneys in as confusing a manner as possible because it is after all, the theory goes, all one, big, complex case. But it almost never is really all one case and the motorcycle clubs, with the possible exceptions of individual chapters here and there, are never really rackets.
In the Pagans case the predicate charges range from conspiracy to murder (alleged by Sutar,) to possession of explosives (Sutar again,) to acting as a body guard for a felon, to transporting proceeds of a raffle across state lines. The defense attorneys seem to all understand that the only common thread in these alleged offenses is that the alleged offenders are all connectable in some way to the Pagans. Not all defense attorneys in all motorcycle club cases see this but the attorneys here do and they been trying to get the judge in the case, his name is Thomas E. Johnston, to see what they see.
Motions to Dismiss
In the last two weeks there have also been several motions to dismiss specific charges in the case; again because the criminality of what the defendants did lies more in the indictment’s description of those acts than the actual acts themselves.
For example, the indictment describes a defendant named Richard Timothy Weaver arming himself to act as a bodyguard for former Pagans Vice-president Floyd “Jesse” Moore.
According to the indictment, Moore “employed” members of the Charleston, West Virginia chapter to act as his bodyguards because he was a convicted felon who could not legally possess firearms. Moore allegedly told members of that chapter to obtain permits to carry concealed weapons “some time before February 2, 2008.” The problem with this particular allegation, however, is that being a member of a motorcycle club is entirely different than being “employed” by an officer of a club.
And another problem springs from trying to understand what “some time before February 2, 2008” actually means. Maybe 1874? Maybe 1975? What’s your favorite year in history? Wouldn’t it be thrilling to witness the signing of the Declaration of Independence? Weaver actually obtained his license to carry a concealed handgun on May 17, 2006.
In another motion filed yesterday, Weaver and two other defendants seek the dismissal of a predicate charge that they conspired to commit an assault with a dangerous weapon. What these defendants may have actually done is talk about going to a motorcycle show and assaulting members of another motorcycle club. The key legalities in this particular motion are that even if they had carried out the assaults and been found guilty they still would have only been guilty of misdemeanors. And, predicate charges in RICO cases must be felonies. And secondly, the assaults would have had to have been committed as part of a pattern of “racketeering activity.” And, the defense position is that racketeering might be something different than going to a bike show with your club brothers.
Motions were flying again today.