Crime And Punishment

March 11, 2010

All Posts, Features

A hard core of defense attorneys in the Pagans Motorcycle Club case in Charleston, West Virginia continues to attack the assumptions that support almost every motorcycle club RICO case. Maybe somebody at the ATF should call Assistant US Attorney Steven Ian Loew and tell him to just give up now before his stupid, inept, harebrained prosecution starts costing ATF agents their jobs.

The latest challenge to indicia search warrants and the probable cause that justifies them was filed Tuesday. The motion to suppress evidence was written by an attorney named Thomas J. Gillooly on behalf of a client named Sergio Velez Cuevas. And it is interesting for its argument, its sources and its implications.

Fifth Amendment

Gillooly’s motion argues that the search of his client’s home violates the First, Fourth and Fifth Amendments to the Constitution.

The First Amendment makes law the right of people to speak, associate and worship freely. The Fourth Amendment forbids “unreasonable searches and seizures.”

The citation of the Fifth Amendment in the motion is interesting because the Fifth is the Amendment that is intended to protect citizens against all government abuse in a criminal proceeding – not just coerced self-incrimination but all forms of legal abuse. The Fifth demands that criminal cases can only proceed with “due process” and that is a phrase in English Common Law that dates to at least the year 1215.

US Versus Rubio

About five sixths of the way through his motion Gillooly cites the original indicia warrant challenge which resulted from the original attempt by the Department of Justice to prove that motorcycle clubs are illegal rackets. The government lost. The prosecution began in 1979. The case is 727 F2d 786 United States v. Rubio. The decision was last modified in 1984. And, most readers will recognize the name of the club.

“Examining the search warrants and their supporting affidavits in the present case,” the Ninth Circuit Court of Appeals wrote, “we must conclude that the warrants were issued without probable cause. All five affidavits are identical through paragraph 23, and contain voluminous detail about the indicia customarily kept by members and associates of the Hell’s (sic) Angels Motorcycle Club. The remaining paragraphs state facts varying with each defendant, tending to establish that the defendant is a member or associate of the Club, and that the indicia of membership previously described would be found at the defendant’s residence. Finally, each affidavit contains a paragraph stating that a federal grand jury has returned an indictment which charges the named defendant with associating with a RICO enterprise – the Hell’s (sic) Angel (sic) Motorcycle Club – for a specified period of time.

“The government argues,” the Ninth Circuit continues, “that it alleged and had substantial proof that the Club was used as a vehicle to facilitate the conduct of racketeering activity. We search the affidavits and the record in vain, however, for any such proof. The record is replete with instances of individual criminal behavior by members and associates of the Club, but we find no connection between such individual activity and the conduct of the affairs of the enterprise as a whole. Because of the innocuous nature of the evidence seized (clothing, documents, photographs, etc.), the privacy interests that stand as the foundation of the Fourth Amendment are highly vulnerable here. The only protection for those interests when seizure of this type of evidence is sought is probable cause to support the search. After careful scrutiny of the affidavits supporting these indicia warrants, we conclude the probable cause requirement has not been satisfied. Accordingly, the evidence should have been suppressed.”

Probable Cause

A quick and incomplete review of affidavits in support of search warrants in multiple recent cases reveals that the motorcycle club “authorities” who request these warrants understand the Constitution as Henry Ford understood art: They don’t know anything about it but they know what they like.

Here are just a few of the “sworn statements” that can get your door kicked in in the middle of the night, and get your pet killed and get a gun held to your toddler’s head. They illustrate the pattern and practice of unconstitutional activity that has made the Bureau of Alcohol, Tobacco, Firearms and Explosives the American Secret Police.

Why should a judge believe his affiant? Because:

“The information set forth herein is based upon my personal knowledge and observations, the experience I have gained over the course of more than 18 years as a federal agent.”

“Based upon my experience, training and education as a Special Agent, with the ATF, all the foregoing constitutes probable cause.”

Why should homes be searched? Because:

“It is their responsibility to keep their colors safe. Information derived from this investigation has indicated that it is customary for Pagans members to store their colors and other indicia of membership at their residence.”

“Based on my training and experience with OMGs (Outlaw Motorcycle Gangs) I know that officers of an OMG entrusted with maintaining the records of the OMG will typically maintain those records in a secure location such as their residence.”

“Based upon my experience, training and education as a Special Agent, with the ATF, all the foregoing constitutes probable cause to believe that the subject premises, which is more fully described in Attachment A, contains, and will contain, property constituting evidence of membership in a racketeering organization….”

Why these homes? Because the affiant says:

“…there is probable cause to believe that the Mongols and their associates as identified herein, have engaged in violations of Title 18, United States Code, Section 1962(d) (Racketeer Influenced and Corrupt Organizations Conspiracy….)”

“The current investigation into the Pagans has uncovered evidence that the PMC and its associates have committed multiple crimes including racketeering, violent crimes in aid of racketeering (VCAR), Travel Act Violations, as well as drug and firearm crimes among others.”

What evidence?

“These items include, but are not limited to, stationery, canes, belts, belt buckles, cigarette lighters, paintings, cards, beer mugs, coffee mugs, key rings, hats, wallets, plaques, rings and other jewelry, and memorial patches.”

“All Mongols vests, colors, patches, T-Shirts, pins, stickers, and other memorabilia evidencing an association with the Mongols.”


About a month and a half ago, in his January 20th essay on indicia warrants, Kevin O’Neill wrote from his penitentiary cell:

“An indicia warrant is one of the means and methods by which…prosecutors ‘disrupt’ and ‘neutralize’ motorcycle clubs they deem nonconformists. The real purposes behind this investigative tool include but are not limited to: A) cause economic hardship; B) create fear, confusion and dissension among the membership and their families; C) disrupt and chill the group’s activities and freedom of association; D) stigmatize the membership with its neighbors, employers, co-workers and families; E) create opportunities for new stratagems; and F) seize as much lawful property as possible to force on the group the added economic hardship of legal fees.”

The last thing indicia warrants are about, O’Neill correctly argues, is collecting evidence. And, in his motion Gillooly notices this but seems to miss the point.

“The premise of the search warrant application and its supporting affidavit is that proof of membership in the Pagans Motorcycle Club is equivalent to proof of criminal activity,” Gillooly complains to the judge. “This premise is both false and an unconstitutional use of the warrant power. Defendant Cuevas is not even charged under the RICO Act. The Government surely knew that he would not be so charged when it prepared the warrant application.”

Well Duh-uh! Of course the ATF Agents responsible for this particular search warrant ( their names are Thomas A. Greco and G. Robert Cunningham) knew that. The point of these warrants has never actually been to search for indicia. The point of these warrants is to make an example out of people. The point of these warrants is to make people afraid. The searches are the punishment.

That is the due process part. The Department of Justice is obliged to give these men a fair trial before they string them up. Not the other way around.

, , , , , , , , , , , ,

23 Responses to “Crime And Punishment”

  1. FATF Says:

    Rebel, Will any of this help out any or everybody in the Mongol case?

  2. Vacuus Cura Says:


    “A hard core of defense attorneys in the Pagans Motorcycle Club case in Charleston, West Virginia continues to attack the assumptions that support almost every motorcycle club RICO case.”

    Outstanding! Is there a legal defense fund?

    Vacuus Cura

  3. DOCB Says:

    Another nice piece of work Rebel.

  4. WV Fritz Says:

    Vacuus Cura,

    I’m not sure about a legal defense fund but, most of the lawyers are court appointed by the U.S. District Court for the Southern District of West Virginia. I’m assuming that there is some sort of “fund” that they are getting paid from. I don’t know where to check for the info, but I’ll try to find out for you.

  5. wv willie g Says:

    ok here we go…we support….SOME mastermind( what they say) and we live our lifes to the fullest….the first amendement the 2nd and the 3rd the 4th and the 5th and so fourth.etc etc etc…was violated on the terms of this indictment….It would seeem that 8 to 10 years of law school would teach…sorry would learn these so called prosecuting attorneys the law HOW THE BOOK WAS READ….not…SPOKE….They mis interpret how they laws are written……Its kind of reading a pop up picture book and assuming they know the whole chapter…..Well guess again…..just cause theres a “if” “and” or “butt” or on the last page…..the bottom line is Your right…your making a ASS out of you self!!!

  6. BigV Says:

    Great article, Rebel. Thanks for all you do.

    BigV in Bama

  7. ironrider Says:

    Cool KGB icon, Rebel. ;)

    One problem for the attorney is citing a 9th Cir. case for precedent or persuasion. No court gives a shit for 9th Cir. law, since it’s considered a whacked out Calif. court that gets overturned by the Supreme Court more than any other circuit. But more power to the attorneys for trying. That’s more than most do, especially for biker cases.

    As for ATF, all the LEO’s know that it’s just a dump for guys that were too dumb or otherwise couldn’t make the grade for FBI, or even DEA. It’s the shitpile for fascists.

  8. sled tramp Says:

    I was once told by someone I THINK would know that after 9/11, the Federal government scrambled to get Homeland Shitcurity going and found themselves with minimal qualified applicants as most were with other agencies. So anyone already in the system having passed basic test procedures and background checks and were on ANYBODY’S list (i.e. the didn’t quite make its) were contacted and sworn in.So essentially, we have mall cops running around with a big badge.
    Not that I’d expect anything else but, still….

  9. Counselor Says:

    Yes, there is a defense fund! It is the CJA fund of the United States Treasury, funded by you, the taxpayers. At least 30 lawyers are being paid by YOU to defend the defendants. And as to the validity of the charges, I leave that to your discussion.

  10. BigV Says:

    As a kid seeing the from around Pilot Mountain, Mt. Airy, and Barren Springs flying Pagan colors made me want a motorcycle, it gave me an idea of what freedom and brotherhood are, and it made me want to earn freedom and brotherhood.

    So far as I’m concerned, as a hillbilly from the mountains, White Bear and the Pagans are heroes.

    Every last one of us, from patch holder to lone wolf, from 1%er to citizen, we all have a shit load to lose if the Pagans lose this trial.

    You can forget owning a piece of property, you can forget having any privacy in that property.

    Every prosecution threatens our collective freedom. Until the RUB’s and Mr. Modern-Middle-Class figure out that they’re next, things are going to keep getting worse and worse from a freedome standpoint.

    Worst yet, freedom isn’t something that we can take back or get a do-over on. When our freedom is gone, all is lost.

    Support Your Local Outlaw Biker
    Madness Forever

    -BigV in Bama

  11. WV Fritz Says:

    Thank you for the clarification on the CJA fund of the United States Treasury.
    WV Fritz

  12. Vacuus Cura Says:


    “Yes, there is a defense fund! It is the CJA fund of the United States Treasury, funded by you, the taxpayers.”

    Great! We have finally identified a noble use for taxes – defending citizens from the abuses of the central government.

    Vacuus Cura

  13. ruffrider Says:

    The way you put the capitols to YOU the taxpayers, are you not one? something about your attitude sucks. There are a lot worse places that my tax monies go

  14. BigV Says:

    Ruffrider: I think what he means is that we’re financing these shitty, made up cases and we ought to be pissed.

  15. ruffrider Says:

    OK I get it. me dumb sorry.
    respect rr

  16. 1st Lady Says:

    There are several lawyers working on this case that are not court appointed and I know I am struggling to keep them paid as I’m sure other families are too. God forbid we actually receive money from anyone for any reason but donations can be sent to McArdle Law Offices, Board of Trade Building, Suite 206, 80 Twelfth Street, Wheeling, WV 26003 or Stanley Needleman Law Offices, 1005 N Calvert St Baltimore, MD 21202. They are representing Bart.

  17. WHITE BEAR 1% 13 Says:

    First I would like to thank all of you who comment on here on regular basis. And to BigV thank you for your words they humble me. My Brothers as myself are just wanting to live our lives in the way we chose, I am sure everyone does not agree and that of course is there right which I will fight to the death to protect but it seems anymore if you wear a patch, you lose your rights. Who is next after were gone, think my friends think. Thank all of you again White Bear P.F.F.P

  18. Apostle Says:

    As usual, I heartily agree with you except – in this case only – on your final point. You give the Government too much credit & Mr. Gillooly too little.

    You assume that the AUSAs & agents are familiar with the Constitution, particularly amendments 1, 4 and 5, but choose to ignore them in the service of intimidation. My experience suggests that a mix of arrogance, laziness, and ignorance combine with institutional bias against bikers to fuel these “RICO” prosecutions – from warrant to sentencing. The Constitution is for nerdy defense lawyers. It is not on the Government’s checklist — 1) agent produces 2) affidavit for 3) indicia of membership in 4) criminal organization.

    In his legal brief, Gillooly must assume that the officials (including btw the magistrate) know the law, but failed to follow it. The proper place to assert that they deliberately ignored the law is in the civil action to recover defendants’ costs after the prosecution fails.

    The Govt does not need to ignore the law in order to intimidate. They can follow the law & still intimidate – eg, stopping your car on a pretense, getting a search warrant b/c “experienced agent” heard something on the street & breaking down your door b/c you don’t respond & shooting your dog b/c it jumps up on them . . . & on & on & on.

    Best regards to all who read & comment here.

  19. EP Says:

    I’ve read thousands of cases over many years. This is more than
    the typical bloated, over worded, exaggerated carcass of a case.
    Mr Lowe has really stretched the envelope on this one. Maybe he
    should have just givin up when he realized that there was nothing there.
    Nobody got hurt until the government got involved and killed someone
    and put an ailing man in a cage to die of disease.
    Im sure Mr Lowe has political aspirations as most prosecutors do.
    In this Country, people are appointed and elected sometimes soley
    because they have proven that they can hurt people, whatever it takes.
    It comes down to the warrior/hero reflex that primordial peoples exibited towards defenders and hunters.
    You are no hero.

    Rudolph Juliani prosecuted the
    1986 Comission case and then ran for office. He and others in
    the NY District Attys office and FBI were too busy chasing Pagans around titty bars in the late 90’s that they overlooked everything leading up to
    9-11. One day he looked up and watched as people flung themselves 1000
    feet from windows to explode in the streets. Still he is considered a hero.
    You aint no fucking heros.
    Mr Lowe is not saving anyone from anything. He may not be able to save his career after this. Who will save people from hmi?
    He is defending nobody against nothing. I hope he enjoys being a defendant in the civil cases against him when he loses.
    That settlement may just finance a huge party.

    After 9-11, our County responded as they always do. Prayers, laws and money were thrown at the problem. Then laws were illegally passed. Thousands of LEO’s were hired. Our Constitution was stripped. Billions were spent on technology to arm these poeple. Police now more resemble para-military forces. Now we see armored personell carriers
    parked outside a 3 man small town NEW police buildings with indoor firing ranges. Now that there is no terrorism these cops dont get laid off and nobody is standing down from the invisible threat. They all have
    self interests at stake and police unions lobbying.
    The LEO community is now like a huge top fuel dragster idiling with no racetrack. Well, now this shit is coming down your street and into your house!

    Agents of the government were
    the ones comitting and inciting all the alleged crimes in this case.
    One such loser woke up every day and lied to evryone about everything
    for at least 6 years. Now he should be believed in court?
    He stole a motorcycle from an older woman I introduced him to.
    Said he was going to fix it for her. Such a good guy.
    Oh, that’s right, he was allowed to steal motorcycles!

    The raffle ticket issue is the silliest RICO I have even read.
    Chruch groups do the same thing. AA often has a 50/50 at a meeting
    and part of he proceeds are sent to headquarters in New York, across state lines. Why are they not prosecuted?

    Finally, the analogy with the Catholic Church is something I have
    said for many years. Why not go after them? Beacuse religious people
    run the government and they don’t all break the law.
    I’d leave my kid with a Pagan long before a priest or a prosecutor.
    The men at the top of my respect list have always been PAGANS!

  20. RVN69 Says:

    My only hope is that the judge in this case continues to follow this line of logic and finally free’s these men who have commited no crimes and allows then to try to pick up the pieces of their lives. It would be great if he would punish the prosecutor/persecuter for his misbehavior in this case, but unfortunately that is not likely to happen. I hope some measure of justice is served in the deaths of James Hicks and Charles Nichols both mens murders were tied directly to this case. I hope there is some measure of justice and closure coming to the brothers, family and friends of Derek Hale murdered in Delaware. Finally I hope that people, citizens start to wake up the the threat to their freedom and liberty that the federal monster has become.
    White Bear, I have much respect for you, when I was a youngun just back for Vietnam I heard of you from 16 members in Cecil county Maryland. You truly epitomize your club motto LPDP, every patchholder could do no better than to follow your example. I and my chapter have always held Bart in high regard, he has always been a fair and honest man.
    Respect to all that have earned it
    Si vis Pacem, Parabellum

  21. Apple Pie Says:

    While all the above are true I think that some are forgetting that if had it not been for Donnie W. testifying before the grand jury in DEC 2008 that none of this would probably be going on now. They have already thrown out the testimony of one of the informants because he was using and selling drugs and our wonderful prosecutor and all the boys with official intials after their names knew about it. Donnie W was told not to associate with the people he was buying drugs from however chose to do so. When he got busted and faced jail time that is when he started cooperating with authorities. He sat in the Pagan clubhouse for 10 months and called them all his “brothers”, all the while trying to gather info to save his own sorry ass. In doing this he gave the prosecutor enough “eveidence”, based on his sworn testimony to get all this rolling. This evidence while it may have been good on a few, is flimbsy at best against most of the others. With the threat of jail time a few of those arrested, not being able to handle the pressure rolled on their brothers. Instead of sitting there and waiting to see how things would unfold.

  22. Vickie Stern Says:

    If only more than 97 people would read this.


  1. Crime And Punishment | The Aging Rebel · Legal News – Your Source for Legal News and Advice - March 11, 2010

    […] See the article here: Crime And Punishment | The Aging Rebel […]

Leave a Reply