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.
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.”
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.”
“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.