The government case against the Pagans Motorcycle Club is sinking faster than the Titanic.
Prosecutors know it and the defense attorneys who told their clients to make plea deals for crimes they did not commit know it. The prosecutors are already trying to spin this travesty. Any minute now the United States Attorney will issue a press release explaining that the Titanic did not actually sink. It just morphed into a submarine.
Charges To Be Dismissed
Dismissal of charges against sixteen defendants in the case is imminent. Those defendants are: Christopher T. Brunner, Thomas William Connolly, Sergio Velez Cuevas, Stephen G. Dunn, Jr., Joseph Robert Fareri, Damian Foti, Stephen G. Hoffmann, Charles James Laverty, Vincent David Pezzano, Daniel J. Reilly, Joseph J. Schmidt, Vincent G. Talotta, Rocco J. Boyd, Joseph Frank Cotton, Dominick Carl Dipietro and William J. DeSalvatore.
All the men are charged with “Interstate Travel in Aid of a Racketeering Enterprise.” Legally two elements must be proved in order to convict an accused man of any crime. The two elements are usually named in Latin as mens rea and actus reus. In simple English the terms mean that before you can be guilty of a crime you have to intend to commit it and you actually have to commit it. All the sixteen men named above ever did was sell raffle tickets and give the proceeds to the club. None of them ever meant to do anything else.
Even if the government could prove that the Pagans Motorcycle Club is a “racketeering enterprise” the charges against these men would be paper thin. As a matter of fact, the government cannot prove that the Pagans was a racketeering enterprise because as a matter of fact it never was.
Let The Spin Begin
Charles T. Miller, the United States Attorney for the Southern District of West Virginia and the immediate supervisor of the man who is actually steering this luxurious, cast iron submarine, Assistant US Attorney Steven I. Loew, told the judge last Thursday that the men named above were “undertaking plea negotiations in earnest.”
“It is a serious misrepresentation to claim that ‘plea negotiations’ are underway,” one of the attorneys who is actually fighting for her client immediately shot back. “Count-dismissal actions are underway. If one of these 16 defendants were ‘pleading’ they would be admitting guilt. Instead, these defendants are agreeing to allow the United States to dismiss all federal charges against them in exchange for a minor local citation of some sort. Defendant objects because the Government’s characterization makes it appear
that there is some legal substance to the Government’s case. That is a questionable
proposition for Count 11 (the Travel in Aid of Racketeering charge), and for the majority of the 29 counts remaining. More important, however, is the pretrial motions hearing that the Government seeks to avoid on Monday, March 15, 2010.”
Taking The Plea Deal
That hearing the government wanted to avoid was yesterday.
What the government fears is that Judge Thomas E. Johnston might discover, in the words of one defense attorney, “that the Pagans are not properly characterized as a business enterprise involving gambling simply because they raffled some motorcycles without registering with the secretary of state.” Because, “that finding would eviscerate many sections of the superseding indictment.”
The Pagans case, as with most motorcycle club cases, is about using the penalties available under the RICO statutes to bully defendants into making bad plea deals. Some cases are stronger than others. The Pagans case has always been weak. The FBI and ATF Agents who ran the case were weak. The prosecutor who manipulated the grand jury was weak. And the attorneys who eagerly secured plea deals for their clients also seem to have been weak.
Weak public defenders undermine American Justice. Nationally, at least 80 percent of all defendants cannot afford to pay for their own lawyers. An important class-action suit about to be argued before the New York Supreme Court may actually put this issue before the nation for a few days; unless Tiger Woods decides to play golf. That New York suit describes the public defender system in the Empire State as “dysfunctional, underfinanced and ‘in crisis,’ with often poorly trained and poorly supervised lawyers handling huge caseloads…indigent clients have been failed by their appointed lawyers….”
At least some of the 19 defendants who have entered pleas in the Pagans case have been failed by their lawyers. Last week Judge Johnston rejected a plea negotiated by an attorney named Anthony F. List on behalf of a client named Joseph J. Schmidt because the judge could not understand “exactly what Mr. Schmidt did” that was illegal. Also last week Johnston delayed sentencing for a man named Steven Stover because he doubted the factual basis for Stover’s guilty plea.
The motions hearing yesterday lasted eight hours.
There are numerous defense motions for severance. Standard operating procedure in motorcycle club cases is to grandly describe the whole club as a racket, a street gang, a terrorist organization or all three and then arrest as many members as possible on as many petty charges as possible and threaten to try them all together as racketeers or gangsters or domestic terrorists. Some of the defense attorneys in this case have sought to abrogate that particular sophistry by demanding that their clients be tried separately for the crimes with which those defendants are actually charged.
An attorney named John A. Proctor argued to sever his client, Michael Lee Phelps, because he thinks the prosecution is trying to convict Phelps for guilt by association. Proctor told the judge that if all the defendants are tried together in one big trial Phelps “could suffer from a very bad case of spillover.” Proctor also estimated that one big trial would last at least three months and would cost more than $2 million just to pay for the defense lawyers.
A couple of the attorneys also attacked the need for official secrecy about the paid informants whose “reports” form the basis for most of this case. One Confidential Informant who has already been named here, Ronnie Howerton, has been paid at least $200,000 for his reports, tips and his future testimony. Howerton’s compensation might be much more than that. The government does not want anyone to know how much.
An attorney named Nick Preservati, who represents a defendant named Martin Craig Nuss, told the judge yesterday that at least one of the four informants in the case would email and text his government handlers and pretend to be busy at his informing job when he was not. But the prosecutors refuse to give Preservati those emails and texts so he can prove it.
Yet another defense attorney, Deirdre Purdy, hammered away at the blithe government assumption that members of the Pagans Motorcycle Club are employees of the club.
Next thing, these same attorneys who refuse to play nice are likely to try to find out how much this entire giant pile of Mongolian cluster love actually cost the tax payers. The prosecutors will probably want to get this case wrapped up before then.
Judge Johnston delayed ruling on most of these motions.