Note: The original version of this story stated that Ablett will be eligible for parole in 30 Years. The statue cited applies only to prisoners sentenced to life in 1984 or earlier. The Aging Rebel regrets the error
Christopher Bryan “Stoney” Ablett was sentenced today to life in prison without the possibility of parole by Federal District Judge Richard Seeborg. The sentence means that Ablett will never be eligible for parole. Some federal prisoners who have been sentenced to life in prison in the past were eligible for parole after 30 years.
The applicable federal statute states: “Any prisoner…shall be released on parole after having served two-thirds of each consecutive term or terms, or after serving thirty years of each consecutive term or terms of more than forty-five years including any life term, whichever is earlier: Provided, however, that the Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime.”
Ablett, a member of the Modesto chapter of the Mongols Motorcycle Club killed Marc “Papa” Guardado in a duel outside the Dirty Thieves bar in San Francisco on September 2, 2008. Ablett was on a date with a woman named Amie Marvel and her roommate. When the three started to leave Ablett had a minor motorcycle accident and could not restart his bike. Guardado learned from at least two friends that there were “Mongols down on Treat” (Street). When he went to the bar to confront those Mongols he found Ablett. Within seconds a shouting match became a street fight. Ablett was armed with at least one gun and a fixed blade knife. He stabbed Guardado then dropped the Hells Angel with a shot to the chest. Then while Guardado lay in the street Ablett shot him in the back of the head.
Ablett turned himself in to police in Oklahoma a month later. He was charged with murder in California. More than six months after that he was charged with multiple federal racketeering charges and his case hinged on whether the Department of Justice could convince a trial jury that he killed Guardado on behalf of the Mongols and to enhance his status within that club.
Throughout the federal case Ablett’s lawyers, Michael N. Burt and Richard B. Mazer, insisted that Ablett was the victim of an unprovoked attack by multiple assailants, that he acted in self-defense and that his actions were unrelated to his Mongols membership. Ablett took the stand and told the jury that he stabbed Guardado because he feared for his life and the lives of his companions. He also told the jury that he shot Guardado in the chest because the wounded man continued to attack him and because he believed a second assailant rushing toward him was pulling a gun. He testified that he did not intend to shoot Guardado in the head.
Prosecutors, relying on the testimony of ATF agents, convinced jurors that the fight culminated decades of violence between the Hells Angels and the Mongols. They told the jury that Ablett was armed because he had anticipated a confrontation with Hells Angels when he went to San Francisco. And, the jury also decided that Ablett had deliberately executed the dying Angel as he lay face down in the street.
Last February 21 the jury took less than four hours to find Ablett guilty of “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.”
What The Judge Thought
A week ago Ablett’s lawyers asked Seeborg to either acquit their client or order a new trial. In denying those motions Seeborg explained at great length what he thought about the Ablett case. Last Friday he wrote:
“There is no dispute that Ablett was a “full-patched” member of the Modesto Chapter of the Mongols Motorcycle Club, a long-standing rival to the Hell’s Angels Motorcycle Club, of which victim Mark Guardado was a member and the San Francisco Chapter president. There is also no question that on the night of September 2, 2008, in the Mission District of San Francisco, Ablett, armed with a .357 magnum revolver and a large knife and wearing a Mongols t-shirt, was suddenly confronted by Guardado, while leaving the Dirty Thieves bar, where he had been socializing with friends. Guardado had been notified that a Mongol member was in the neighborhood. Neither man knew the other prior to their encounter on that night, but both were wearing clothing that identified their respective clubs, and both knew the Mission District to be Hells Angels’ “territory.” Ablett testified at trial that in the struggle that ensued on the sidewalk and in the street, he stabbed Guardado repeatedly while they were wrestling on the ground, and then, after the two separated briefly, shot Guardado in the chest. Ablett further acknowledged that when Guardado subsequently collapsed in the street, he fired a final, fatal shot that hit Guardado in the back of his head, and then left the scene on his motorcycle.
“Aside from those facts, the circumstances of the confrontation and the precise manner in which it occurred were hotly contested at trial. The prosecution maintained Guardado was alone and unarmed when he confronted Ablett. While there was conflicting evidence as to who initiated the physical struggle, evidence at trial reflected that when Guardado attempted to retreat, gravely wounded, he collapsed in the street. According to the government’s evidence, Ablett then calmly and methodically approached Guardado as he lay in the street and deliberately killed him by a shot to the back of the head. Although Ablett eventually surrendered in Oklahoma after an arrest warrant issued, the prosecution offered evidence that his month-long, interstate flight, aided by other Mongols, represented an effort primarily to evade law enforcement, and only less so the Hells Angels.
“Ablett, by contrast, testified that Guardado was accompanied by a “pack” of armed Hells Angels in a dark colored, light truck (possibly a sports utility vehicle). Ablett testified he was aware of the Hells Angels’ practice of attacking Mongols in groups, believed the men he saw on the street with Guardado to be armed, and immediately feared for his life and the lives of his female acquaintances. The defense’s theory of the case was that Ablett merely reacted defensively in the face of grave danger, by killing Guardado, and shooting at his alleged companions. Ablett insisted that he fled the scene without surrendering to law enforcement for the sake of self-preservation and out of fear of the Hells Angels.
“In light of the requisite elements of the racketeering-related charges, the prosecution presented extensive evidence relating to the organization, protocols, and activities of the Mongols. Much of this evidence was derived from ‘Operation Black Rain,’ a 2008 undercover infiltration of the club by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which resulted in the indictment of scores of Mongols, including many of its leaders. The government’s presentation showed the club’s activities and members’ conduct to be highly organized and governed by specific rules – some written, and others rehearsed. Evidence demonstrated that the club itself is similarly rule-bound and generally organized into geographically-based chapters, throughout multiple states and foreign countries, and overseen by a “mother” chapter based in Southern California. Each chapter is comprised of officers, including a president and sergeant-at-arms, full-patched members, and “prospects” (e.g., recruits). There are special communication protocols within the club, and all officer conference calls.
“The prosecution submitted, as an organizing principle, that the Mongols (like the Hells Angels) consider themselves to be an “outlaw” motorcycle gang – in their somewhat self aggrandizing terms, the “one percent” that refuses to conform to social norms. Among other things, this supposed rebelliousness is characterized by violence. The jury heard testimony from numerous government and defense witnesses concerning the two clubs’ decades-long rivalry, which has left scores of Mongols and Hells Angels members dead. Significantly, the government also presented evidence to show that a Mongol who kills or assaults a member of the Hells Angels earns greater respect within the Mongols, and receives particular patches to be worn on his motorcycle vest, signifying his enhanced status.”
“While it is abundantly clear that the government must prove beyond a reasonable doubt the alleged enterprise was “engaged in racketeering activity,” prior cases have not articulated any bright-line rules as to the quantum of proof required in connection with specific alleged racketeering acts, or the amount of such activity that is necessary to support the inference that an enterprise is “engaged in racketeering activity.”
“The government’s presentation of the events at Laughlin was much more substantial. Specifically, the prosecution presented highly incriminating evidence of the battle on the casino floor, including video depicting Mongols attacking Hells Angels with guns and other weapons. There can be little question that the government succeeded in adducing adequate evidence to prove the Mongols engaged in murder, attempted murder, and conspiracy to commit murder at Laughlin. While it is true, as Ablett emphasizes, that the Laughlin incident occurred in 2002, years before the killing charged in this case, the evidence showed it further inflamed the rivalry between the two clubs, and again, the jury was entitled to consider these materials in support of its determination that the Mongols were engaged in racketeering activities on or about the date of the alleged murder.”
“…admittedly, there was no evidence the Mongols took a portion of the transaction proceeds, nor coordinated or sanctioned the sales. According to the evidence, however, the agent who purchased the drugs (the agent was ATF Special Agent Darrin Kozlowski — Aging Rebel) was later reprimanded by the president of the Mongols chapter with which he was associated for not reporting the transactions to the chapter. The evidence suggested there were suspicions within the membership about the agent’s undercover status, and the Mongol’s leadership determined to keep closer watch on his activities. The effect of this particular evidence is ambiguous: on the one hand, it suggests the club was not fully aware of the specific transactions at issue, but on the other, it suggests that the Mongols’ leaders did not object, in principle, to drug trafficking within the membership, and simply wanted to remain informed of such activities. In support of the latter conclusion, the evidence strongly suggested that the undercover ATF agent who made the controlled purchases from various Mongols members was able to do so only by virtue of his status as an official prospect for membership. Additionally, there was evidence presented throughout trial to suggest that the club was well aware of its members’ drug-related activities. In fact, one of the members involved in trafficking later approached the agent again at a Mongols party in July of 2008 (at which Ablett was present) to propose a heroin deal. On balance, there was sufficient evidence for the jury to conclude that the Mongols were involved in trafficking activities on or about the time of Guardado’s death.”
“The defense maintains that ‘[t]his evidence, even if believed, would not allow a rational jury to conclude that Mr. Ablett is guilty of malice murder under California law.’ Ablett’s characterization of the evidence, however, ignores the testimony of multiple unbiased, percipient witnesses. Those individuals – neighbors, passersby, etc. – observed Ablett separate from Guardado, shoot him in the chest, and then calmly and methodically execute him after he had collapsed in the street.”
“None of the cases cited by Ablett stand for the proposition that a defendant, even if initially confronted by his victim, may shoot him to death while he lays helpless and already mortally injured. It is also worth emphasizing that none of these cases arose in the context of a gang-related killing. Here, by contrast, there was a great deal of evidence to establish the Mongols’ hatred of the Hells Angels, which, when viewed in the light most favorable to the prosecution, supported conviction and undermined Ablett’s defenses.”
The Defense’s Dying Gasp
In a motion filed yesterday Mazer and Burt conceded, “There really is no issue as to the sentence Mr. Ablett is going to receive; he will be sentenced to life in prison without the possibility of parole.”
Then they argued that the government ignored “the objective evidence that Mark Guardado had backup when he attacked Mr. Ablett.”
Finally, the two defenders raged against the “Enterprise Theory of Investigation.” This theory, invented by a left-leaning sociologist named Edwin Sutherland, is a tool government prosecutors use to enforce unconstitutional “Bills of Attainder” against selected, and usually unpopular, groups under the federal racketeering statutes. Constitutionally, technically, it is not illegal to belong to either the Mongols or the Hells Angels. Sutherland’s theory, which federal prosecutors usually the ETI, provides a short cut around the Constitution that allows prosecutors to get “bad guys.” The ETI was at the heart of the Ablett case.
Months after the verdict, on the day before sentencing, the defense attorneys wrote, “Finally, this sentencing warrants a brief comment on the ‘enterprise’ theory of prosecution of the Mongols motorcycle club as a RICO criminal enterprise. A law that was designed to pursue the Mafia and organized crime syndicates has now been twisted by the government into a alleged RICO enterprise in a manner witch abuses the intended purpose of the RICO statute. It is not against the law to be a Mongol the First Amendments right to freedom of association protects membership in the Mogols Motorcycle Club. These men are living a lifestyle that is as American as the Cowboy. There will probably still be a Mongols Motorcycle Club long after Mr. Ablett passes from this earth, whether that be in prison or in freedom and vindication.”
The defenders’ words were an afterthought that changed nothing.