The ATF may finally be about to lose a biker case. The two year, five month long morality play that is still called United States of America v. Barbeito et al. has finally gone to trial.
The Barbeito case originally had 56 defendants. The case would have had 57 defendants but a SWAT team killed James Marcus “Jimbo” Hicks, Jr. during a brutal, dawn, indicia search that was Rambo-esque even by ATF standards. The heart of the racketeering case was the extravagant accusation that the Pagans Motorcycle Club was a racket because the club had sold tickets for a chance to win a motorcycle and that members then transported the proceeds across state lines: For example from Camden across the Walt Whitman Bridge to Philadelphia.
The Pagans case was intricately, though secretly, intertwined with the West Coast Mongols case U.S. v. Cavazos et al. It is undeniable that the Pagans prosecution would not have been possible without information gathered and manufactured during Operation Black Rain. As in Cavazos the United States Attorney, here a heartless bureaucrat named Steven Loew, sought the forfeiture of the Pagans collective membership marks. As in every other motorcycle club case the government relied heavily on the mostly phony expertise of the ATF and the intelligence of two snitches: Wes Hudnall and James “Pagan Ronnie” Howerton. Hudnall is now dead. Unlike Cavazos, Barbeito deflated rapidly.
Fighting For The Accused
The Barbeito case was always mostly fictional but it still might have become a government success were it not for the intelligence, diligence and moral outrage of a lawyer named Deirdre H. Purdy. Purdy clearly gets how motorcycle club cases work. She cares abvout her client and she also has the astonishing ability to make her fellow attorneys care about theirs. Her client is a Pagan named Richard Timothy “Lucky” Weaver.
Weaver and Elmer Luke “Tramp” Moore are the two Pagans who went on trial this week. Moore is also ably represented by Carl J. Roncaglione, Jr. The men are charged with two counts from the superseding indictment filed on February 4, 2010. Count 19 alleges “conspiracy.” Count 21 alleges that Weaver and Moore were “employed” as armed bodyguards for a convicted felon.
Through their attorneys Weaver and Moore contested the idea that belonging to a motorcycle club is the same thing as being “employed” by one. They, and four other defendants named Kim Berryman, Steven Knight, Brian Mitchell, and Michael Phelps were accused of carrying firearms on behalf of former Pagans Vice President Floyd Moore. Floyd Moore is a convicted felon who is prohibited from possessing a firearm. Elmer Moore is Floyd Moore’s son.
What Is Employment
The federal law Elmer Moore and Richard Weaver are accused of violating reads: “It shall be unlawful for any individual, who to that individual’s knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment – (1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce; or (2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
Purdy, Roncaglione and the other attorneys moved for dismissal partly on the grounds that the accused men were not “employees” of Floyd Moore but members of the Pagans. District Judge Thomas E. Johnston said belonging to a club is not the same as being employed by that club and dismissed those charges. But the prosecutor, Lowe, appealed Johnson’s ruling to the Fourth Circuit Court of Appeals. Purdy and the other defenders argued that the right to possess firearms is a “core right” and that it is the right of every “law-abiding, responsible citizen to possess and carry a weapon for self-defense.”
The appeals case was argued last September, decided a month later and not fully resolved until earlier this month. Succinctly stated, what happened was that the Fourth Circuit ruled that a person need not receive wages or compensation to be legally “employed” – as Uncle Remus was legally “employed” by Master John. Judge Johnson dismissed the charges against Berryman, Knight, Mitchell and Phelps and set a trial date for Weaver and Moore.
Sons Of Anarchy Syndrome
Purdy and Roncaglione filed a number of pretrial motions that should be standard in racketeering accusations against motorcycle clubs but unfortunately are not.
Purdy filed a motion to stipulate her client was in fact a member of the Pagans in order to prevent the introduction into evidence of numerous photographs of Weaver wearing a Pagans cut. “The evidence is…prejudicial under Rule 403 in that the cuts and colors (vests and patches) have numerous associations in the popular culture (e.g., as seen in Sons of Anarchy, a current television series now in season 3, which shows numerous scenes of violence by individuals dressed similarly to Weaver in these photos),” Weaver’s lawyer wrote.
Previously Purdy had convinced Judge Johnson to excise the first paragraph of Count 19 from the charges against her client. That paragraph read, “The PMC (Pagans Motorcycle Club) was a criminal enterprise engaged in various types of violent criminal activity.”
Last week she moved:
“The Government has previously used the terms, ‘gang,’ ‘outlaw gang’ and so forth monotonously in briefing and at oral argument to characterize the PMC as a criminal enterprise engaged in violent criminal activity.
“These terms are prejudicial in the extreme because they (unnecessarily) stamp the defendants and associates as ‘criminals,’ organized for the purpose of criminal activity. Richard Weaver has no criminal convictions in his life. He is not and has never been a criminal…the Government has produced not a scintilla of proof that this local chapter of the PMC engaged in any criminal activity as a group.
“The Government has also tried to bootstrap the PMC’s use of ‘outlaw’ to demonstrate that they disregard the law. Despite reiterated instruction and explanation that this is a joke because ‘outlaw’ actually refers to the one percent of clubs that do not belong to the American Motorcycle Association (AMA), the Government persists in their scurrilous use of the term to label these defendants as outlaws and therefore criminals.
“The Government’s use of the terms ‘gang,’ ‘motorcycle gang,’ ‘outlaws,’ or ‘outlaw motorcycle gang’ is a false characterization unsupported by evidence….”
Roncaglione moved that potentially incriminating audio recordings made by the now dead ATF confidential informant Hudnall should not be allowed as evidence because with his death they became hearsay.
Government Tries To Stall
Last Friday Lowe blinked. He moved for a continuance. Purdy and Roncaglione replied that the case has been going on forever already and their clients are entitled to a speedy trial. Judge Johnson agreed. So the jury was seated yesterday. Opening arguments were given and testimony by government witnesses began today.
The opening witness was ATF Special Agent Rob Cunningham. Judge Johnson did admit into evidence two of Hudnall’s recordings in which Weaver states “Its my job to watch after Floyd Moore.”
The second witness was a man named James Claypool who testified that Weaver did sometimes protect Floyd Moore. He testified about an incident in June 2007 when a drunk and loutish truck driver from Iowa named “Badger” broke into Floyd Moore’s residence and attacked Floyd Moore and his girlfriend with a baseball bat while the couple slept. Moore refused to press charges. Today Claypool testified that Weaver possessed a handgun immediately following the Badger incident.