Christopher Bryan “Stoney” Ablett got his last, best chance for freedom at a motion hearing this afternoon in San Francisco. Ablett is a big underdog to ever ride a motorcycle again.
In a sentencing memorandum filed yesterday Assistant United States Attorneys William Frentzen and Kathryn Haun asked the presiding judge, Richard Seeborg, to sentence Ablett to “two life terms of imprisonment and 240 months of imprisonment – each to run concurrent – and life imprisonment on Count Three to run consecutive, followed by five years of supervised release” with a set of unusually punitive probation conditions. If he survives the incarceration experience, Ablett will probably be paroled in the year 2038 and be off probation to celebrate a rockin’ New Year in 2045. At present, a federal sentence of life in prison means 30 years in prison. Ablett has been locked up since 2008 and he has been in federal custody since 2009.
Seeborg will announce Ablett’s sentence a week from today on May 15.
The Defense Motions
In Motions filed last month, the prosecutors and Ablett’s defense lawyers, Michael N. Burt and Richard B. Mazer, reargued the case. Burt and Mazer asked Seeborg to either grant their client a new trial or enter a judgment of acquittal. It is very unlikely that the judge will do either. Ablett will have ten days to appeal his conviction after he is sentenced.
` Last February, a jury found Ablett guilty of four federal racketeering charges: Murder in aid of racketeering; assault with a deadly weapon in aid of racketeering; use/possession of a firearm in furtherance of a crime of violence resulting in murder; and use/possession of a firearm in furtherance of a crime of violence. His trial began January 23 and concluded on February 21. The jury deliberated for less than four hours.
All these charges stem from a fight outside a bar called Dirty Thieves at the corner of 24th Street and Treat Avenue in San Francisco on September 2, 2008. Following a chain of tragic coincidences Ablett was confronted a man named Marc “Papa” Guardado who was President of the San Francisco charter of the Hells Angels Motorcycle Club. Ablett is a member of the Mongols Motorcycle Club. The two clubs share a violent history and have been mostly at odds with one another since the Ford Administration.
At the time of the murder, the Bureau of Alcohol, Tobacco, Firearms and Explosives had patched seven undercover agents and at least four confidential informants in the Mongols. The investigation carried out by those agents and informants was christened Operation Black Rain. Black Rain was the most extensive outlaw biker investigation in U.S. History. In the court cases that followed the investigation the Department of Justice attempted to prove that the Mongols Motorcycle Club was a criminal racket. As is the custom in the United States, none of the men accused as a result of the investigation were ever actually tried. The Ablett case was the first time any of those racketeering allegations was actually heard by a jury.
The two most senior ATF agents who participated in Operation Black Rain, Case Agent John Ciccone and Special Agent Darrin Kozlowski, testified at Ablett’s trial.
Interests Of Justice
In the motions filed last month Burt and Mazer begged Seeborg for a new trial in the “interests of justice.” Ablett’s lawyers have argued all along that their client had acted in self-defense against multiple assailants. Their motions ask Seeborg to reverse numerous decisions he made before and during trial.
The defense objects to what it claims are numerous legal defects including “Gang Expert Testimony,” “Racketeering Evidence and Coconspirator Statements,” “Evidence Regarding the Events at Laughlin, Nevada in April 2002,” Evidence That Any Mongols Member Discussed Financing the Defense Lawyers in this Case,” and “Statements Of Deceased Witness.” The defenders even managed to raise the key issue in the nationally prominent George Zimmerman-Tavon Martin case, which under Florida law is called the “stand your ground law.” Ablett was convicted at least in part, they argue, because the jury was not made fully aware of the right of an assailed person in California to not retreat and to pursue his assailant.
Mazer and Burt also attempted at trial, without much success, to vilify Guardado in particular and the Hells Angels in general. And, they argue in their motions that they were not able to do so more successfully because of judicial error. “Mr. Ablett provided a very detailed proffer of evidence which demonstrated a consistent and long term pattern and plan and modus operandi by Guardado to use weapons and Hells Angels confederates to launch surprise and violent attacks against his victims. Such evidence went to the heart of Mr. Ablett’s defense in this case,” Ablett’s lawyers complain.
Mostly in these documents the prosecutors and defenders argue over two key issues: Did Ablett act in self defense and was the Mongols Motorcycle Club a racketeering enterprise that affected interstate commerce. They argue now, more so than at trial, that there is a “glaring failure of proof (that Ablett killed Guardado on behalf of a criminal conspiracy) because the government did not show that an enterprise existed ‘on or about September 2, 2008,’ let alone that it existed from 1997 to 2010.”
During trial, the government referenced seven “incidents” to prove that the Mongols Motorcycle Club was a mafia. The first was the “incident at Harrah’s Casino in Laughlin, NV in April 2002 involving the conspiracy to commit murder, the attempted murder, and the murder by members of the Mongols Motorcycle Club against members of the Hells Angels Motorcycle Club.” The second was an “incident at Maverick’s Saloon in Norco, CA in December 2005 involving the conspiracy to commit murder and the attempted murder by members of the Mongols Motorcycle Club against members of the Hells Angels Motorcycle Club.” The third was an “incident at Pacheco Park in Los Banos, CA in June 2008 involving the conspiracy to commit murder and the attempted murder by members of the Mongols Motorcycle Club against members of the Hells Angels Motorcycle Club.” The remaining four “incidents” were drug buys by special agent Kozlowski during Black Rain. “Importantly,” the defense argues after the trial and conviction, “only one of these incidents occurred in 2008, and there was no proof that all of them involved the same group of individuals, or even proof of different groups functioning as a continued unit.”
The defenders also argue that there was “no evidence presented (at trial) that any enterprise ‘had an effect upon interstate or foreign commerce.’” They even quote from the government’s closing argument to the jury that the Mongols did too have a national and international effect:
“You have heard a lot of evidence of this,” the prosecutors said in February. “First of all, you have heard that there are chapters in other states. This picture depicts some of the different states, even actually different countries. They have meetings in state, out of state. You have heard about these runs that they do, paying dues. So a member in Oregon has to send in his dues to the mother chapter and his annual dues in Los Angeles. And then also you have heard evidence that members of the Mongols use firearms, deal drugs. Those things travel in interstate commerce. And then also that members of this enterprise, the Mongols, use that Nextel phone system. Well, those phones, the wires travel interstate. And although the government doesn’t need to show proof that the defendant personally engaged in interstate activity, here you have that, too, because you remember his testimony about how he traveled to visit his Mongols brothers down across state lines into Texas and then into Oklahoma.”
The Mongols Racket
In a memo filed April 27, the government replied at length about whether the Mongols was or was not a criminal racket, whether it effected interstate commerce and whether Ablett, from the Modesto chapter, was part of it:
“The testimony of Special Agents Ciccone and Kozlowski,” the government began, “conclusively established that the Mongols was an enterprise that was formally organized both in terms of individual chapters and a governing ‘mother chapter.’ The evidence was that the Mongols were a pyramid structure, with chapters nationally and internationally. The Modesto chapter obviously associated with the entire Mongols enterprise because they all knew each other. For example, Special Agent Kozlowski testified he had seen the defendant, a member of the Modesto Mongols, four separate times at Mongols events with members from innumerable different chapters. One such occasion, the Los Banos run in the summer of 2008, the defendant was pictured with members from numerous other chapters. There can be no question that Modesto members like the defendant associated with other members from different chapters. The defendant himself concedes – as he must – that the government introduced evidence the enterprise existed on June 4, 2008. However, persisting in his view that the Modesto chapter of the Mongols is somehow separate and insulated from the rest of the Mongols enterprise, he goes on to argue that the government somehow failed to prove that the ‘various associates function as a continuing unit,’ stating that ‘there was no proof that all of them involved the same group of individuals, or even proof of different groups functioning as a continued unit.’ This ignores the overwhelming evidence adduced at trial that the Mongols was an enterprise with different chapters throughout the United States and internationally, but that all those chapters followed the same rules and constitution, were subject to the same ‘Simple Protocol,’ routinely met with each other, had ‘officers’ meetings across the different chapters, held weekly ‘church’ meetings, and paid dues not just to individual chapters but to the mother chapter in the Los Angeles area. Testimony also established that the defendant’s own Mongols application was recovered from a search warrant executed on members of the mother chapter. To even suggest that the Mongols was not a single ‘enterprise’ ignores the vast weight of evidence introduced to the contrary. That is like saying the individual U.S. Attorney’s offices are not part of the enterprise of the U.S. Department of Justice because they may be geographically removed from headquarters.
“To be clear, the government proved that the enterprise existed not only on or about September 2, 2008: The evidence also established that the Mongols enterprise existed well before, on, and even after September 2, 2008. For example, the cross examination (and to a lesser extent the direct and redirect) of Special Agent Kozlowski, as well as the testimony of Special Agent Ciccone, established the Mongols existed as an enterprise as early as the 1970s. Evidence about the enterprise’s existence in April 2002 came in through the testimony of Sergeants Causey and Montes of the Las Vegas Metropolitan Police Department, who testified about the Mongols acting together in concert at the Laughlin River Run incident at Harrah’s casino, all the while wearing their ‘cuts’ or colors and Mongols insignia. Evidence about the enterprise’s existence in December 2005 came in through Investigator Gary Bowen of the Riverside County Sheriff’s Department who testified about how the Mongols congregated at the Arco AM/PM station in Norco, CA before ‘marching . . . military style’ in a ‘column’ across to the Maverick’s Saloon where a gunfight then broke out. Investigator Bowen also detailed how the Mongols members were wearing their ‘cuts’ or colors, and evidence in the form of still photographs depicting that scene were admitted through this witness. Evidence of the enterprise’s existence in June 2008 came in through the testimony of Detectives Hedden and Melden of the Los Banos Police Department, who testified about the incident at Pacheco Park. Those witnesses testified about the Mongols members who were present and wearing their ‘cuts,’ or colors. The jury also heard evidence that the Mongols existed as an enterprise both immediately before and after the murder. For example, Special Agent Kozlowski testified about the meeting in Southern California that had taken place at the very end of August 2008, days before the murder, and the defendant was present for that meeting. The defendant himself admitted to having been in the Southern California area at that time. Testimony of Special Agent Chad Fitzgerald of the FBI’s CAST team corroborated this, establishing that the defendant’s phone had been in that area during that timeframe. And testimony of Amie Marvel (with whom Ablett was on a date the night of the fight with Guardado) also corroborated this because she testified the defendant had just come from having seen his ‘brothers’ down South. The defendant’s own testimony also established that immediately after the murder he sought out the company of his Mongols brothers in the San Jose, Texas, and Oklahoma areas. And the testimony of Special Agent Jacob Millspaugh of the FBI corroborated that the defendant called Mongol after Mongol in the hours immediately following the murder.
“Evidence was also presented that the Mongols continued to exist as an enterprise after the murder, and even after the October 2008 Operation Black Rain takedown. Specifically, Special Agent Kozlowski testified that in the wake of the murder he attended a Mongols meeting and the jury heard recordings of some of that meeting (that post-dated the murder). Defense counsel’s cross-examination of Special Agent Kozlowski underscored the point that the Mongols continued to exist after the murder and the takedown when he elicited testimony that there was still a Mongols gang even after Operation Black Rain resulted in the apprehension of dozens and dozens of Mongols.
“In sum, there can be no question that a rational jury could have concluded that the Mongols existed as an enterprise – that is, a group of individuals associated in fact – on or about September 2, 2008.”
On the subject of whether or not the Mongols effect interstate commerce the government wrote:
“…the testimony of Special Agent Kozlowski and Special Agent Ciccone established that dozens of Mongols chapters existed in numerous states and internationally, to include California, Nevada, Arizona, Virginia, Montana, Oklahoma, Oregon, Canada, Italy, and elsewhere.”
“Special Agent Kozlowski’s testimony also established that these various chapters used Nextel cell phones to communicate with each other and with the mother chapter; that the enterprise held meetings in California as well as other states in which they had chapters; that it sponsored runs in California and other states; and that all members from individual chapters across the country paid dues into the mother chapter in California. Special Agent Kozlowski’s testimony also established the enterprise’s use of Code 55s and Code 66s over the interstate wires with Nextel phones. In sum, the evidence established that the Mongols was a vast enterprise that stretched not just across state but across foreign lines….”
“All of this evidence cannot be separated from the avalanche of testimony regarding the rivalry between the Mongols and the Hells Angels. That was testified to repeatedly by Special Agent Kozlowski (such as references to multiple instances during which Mongols either discussed the need to attack Hells Angels or repeating the ‘glory’ of attacks taken by other Mongols on Hells Angels for which they needed to be respected), Special Agent Ciccone, and by defense expert Jorge Gil-Blanco. In addition, there were many recordings in which the Mongols reasserted the need to attack Hells Angels, reporting on the accomplishments of specific Mongols by attacking Hells Angels – including the defendant himself by killing Mr. Guardado – and by repeating the mantra that the Mongols were an ‘outlaw’ biker gang and ‘still one percenters.’
“Defendant’s motion claims that the Laughlin, Norco, and Los Banos incidents are insufficient because the government proved ‘someone was injured but not anyone acting on behalf of the enterprise committed murder, attempted murder, or conspiracy to commit murder.’ The government proved more than injury. At Laughlin it proved the murder of two individuals through the testimony of Sergeants Pate Causey and Robert Montes. It also introduced physical evidence of photos, and notably the defendant objected that the photos of the murder victims were ‘too prejudicial.’ The Court sustained that objection in part, and permitted certain photos from Laughlin to be introduced. Those photos, the testimony of Sergeants Causey and Montes, and the testimony from Special Agent Kozlowski surrounding what he knew about Laughlin in his undercover role as a Mongol conclusively established that the Mongols did in fact commit murder, attempted to commit murder, and conspiracy to commit murder. Defendant’s theory, espoused outside the presence of the jury, was that it was the Hells Angels who instigated the Laughlin incident such that the Mongols could not be said to have committed murder, attempt, or conspiracy. This is incorrect. First, Sergeant Causey testified that the ‘incident’ actually began earlier than the events at Harrah’s that evening and that actually a smaller group of Hells Angels had been approached by the Mongols earlier and had to call for ‘back up.’ Thus, the evidence was not that the Hells Angels were responsible for Laughlin but rather that both sides were. In addition, even if the Hells Angels were the aggressors – which was not established – the Mongols engaged in mutual combat and did not retreat. The video introduced of the Laughlin incident clearly depicts Mongols attacking Hells Angels.”
The government also cites “the testimony of Special Agent Kozlowski that, as a Mongol, anytime a Mongol were to see a Hells Angel it was understood that it was “game on.” Not for some random personal reason that was unrelated to the enterprise, but rather on behalf of that very enterprise.” And the same agent’s testimony “about an incident in Gustine, California, specifically ‘where Mongols members were at an event sponsored by the Northern California chapters at the same hotel we were in Los Banos, California, where members of the Mongols went to bars in the area seeking Hells Angels members and eventually stabbed and killed a patron who was not a member of the Hells Angels for wearing a red-and-white t-shirt.’”
Self Defense Or Murder
The two sides also radically disagree about whether Ablett acted in self defense or whether he killed Guardado in cold blood then lied about it on the witness stand.
The defense said, “The government’s evidence has shown that two hundred and ninety five pound Mark Guardado, accompanied by at least one other man, unexpectedly confronted Mr. Ablett in an ‘angry’ manner, got ‘in [Chris’s] face’ and ‘pushed Chris down onto the ground so that he was on top of Chris.’ Both men were ‘laying down struggling with each other’ and ‘their arms and their bodies [were] moving like they were wrestling.’ During and immediately after this struggle, Mr. Ablett stabbed Mr. Guardado with a knife and then shot him twice, once in the chest and once in the back of the head. According to all witnesses, these events happened very quickly. This evidence, even if believed, would not allow a rational jury to conclude that Mr. Ablett is guilty of malice murder under California law.”
Mazer and Burt told the judge that, “the government in this case has failed to produce sufficient evidence to convince a reasonable jury that Mr. Ablett is guilty of the violent crime of murder under California law. Admittedly, on the government’s own evidence, and without considering the testimony from Mr. Ablett, there is…uncertainty as to whether a complete self-defense has been made out. But there is no uncertainty that the government’s own evidence establishes as a matter of law either justifiable killing in unreasonable self-defense….”
The government accuses Ablett, who testified in his own defense, of lying to the jury when he stated “that there were multiple Hells Angels present at the time that he shot Mr. Guardado” and that there was an “SUV full of angry Hells Angels who allegedly returned fire on the defendant.” The government calls Ablett’s account of that night a “tall tale. These claims were obviously false and necessarily rejected by the jurors.”
And, the government cites two of its witnesses to convince the judge that Ablett is a liar.
“Ivonne Smith testified that the defendant ‘had an attitude of complete security of – and power and satisfaction …. It’s satisfaction and power and completely secure, secure. That’s what I saw on his face.’ Ms. Smith also testified that ‘I saw (Ablett) pull out a gun …. And then he – the one that had no helmet and no gun (Guardado), he started backing – walking backwards. And by the time – he was very, very pale, and he continued steady back but with a very unsure voice and very, very scared face and eyes. And then this other guy just pulled the gun in front of him. And by this time, they were just maybe two or three meters apart.’ Further she testified as to the defendant’s dispassionate demeanor following the shots as follows: ‘Completely, complete calm, taking his time….He was not rushed, just very calm and took his time. There he goes, like nothing happened, like really, really nothing happened.’”
“Eyewitness Troy Smith, too, testified about the position of the victim when the defendant fired what Medical Examiner Jon Smith, M.D. testified was the shot that would have caused instant death. Mr. Smith testified that the victim was ‘laying in the middle of the street face down spread eagle’ when he saw the defendant ‘walk kind of in a semicircle around the body and position himself, … standing over the body leaning down with a large silver revolver and pulled the trigger and shot the body one more time in the back of the head.’ Mr. Smith further testified as to the defendant’s calm demeanor when leaving the scene, stating the defendant ‘calmly walked kind of in a semicircle around the body and round back to his motorcycle, put the revolver in his right hand jacket pocket, fired the bike and took off …’ Finally, Mr. Smith described the defendant as ‘very calm, deliberate, didn’t appear to be shaken or concerned or worried, wasn’t looking around, just kind of walked back to his bike and got on,’ and elaborated on that calm demeanor at the time of the murder, testifying that the defendant was ‘Very calm, very deliberate, and was not ‘Jesus Christ, what have I done,’ it was very kind of calm, remarkably so, which [is] something [that] sticks with me to this day.’”
Shit, Fuck, Cunt, Suck
The prosecution even manages to work into it argument the Mongols “fight song” which, at least once upon a time, was widely understood to be ironic, in the same way that the colorful use of scatological profanity by the satirical novelist Terry Southern was once widely understaood to be ironic. “The fact that the jurors saw the defendant himself singing a song about ‘castrating his enemies . . . with a dirty piece of glass’ just months before he murdered what eyewitnesses described was an [lifeless] individual is sufficient in and of itself for a rational jury to have concluded his motivation for this murder was to maintain or increase his position,” the prosecution argues.
This Mongols song goes:We are Mongols raiders We’re raiders of the night We’re dirty sons of bitches We’d rather fuck and fight We castrate the Sheriffs with a dirty piece of glass And shove out rusty buck knives up their fuckin’ ass Hidy, hidy, Christ Almighty Who the fuck are we? Shit, fuck, cunt, suck Mongols M.C.
In The Wind
The government also makes much of Ablett’s actions after the fight when he “…fled to the company of his Mongols brothers, in San Jose, Texas, and then Oklahoma, and attended a Mongols party in Oklahoma.” The government describes this as, “yet further evidence from which the jury could have reasonably concluded that the defendant was basking in the glory of having murdered a Hells Angel.”
“Defendant discarded the murder weapons in a trash can to keep them from ending up in police custody,” the government concludes. He “disarmed a tracker to enable his escape (although he incredibly told the jury he thought he was disarming a bomb), he discarded his cell phone (again, incredibly telling the jury that he spilled water on it right around the same time he was perfecting his skills as a bomb technician), and he went on a multi-state scamper from Mongol home to Mongol home…. Defendant was, in fact, fortunate that Mr. Guardado – apparently thinking his fists sufficient to handle intruders – did not arm himself as the defendant had and did not bring the army of fellow Hells Angels that defendant falsely claimed.”
All of these arguments and more will be reiterated again and again as the inevitable appeals play out, as Guardado molders in his grave, as his friends and family continue to grieve, as Ablett and his friends and family struggle to keep their hopes alive, as the ATF and other federal police continue their mostly clandestine war on motorcycle clubs and as the lawyers in this case continue to get paid.