In a 12 page motion filed April 2nd, Assistant United States Attorney Julius N. “Jay” Richardson accused Daniel Eugene “Diamond Dan” Bifield of trying “to game the system” by attempting to withdraw his guilty plea. Bifield pled guilty to racketeering conspiracy on January 3.
Bifield’s agreement with the government was unusually one sided. The defendant, who is 61-years-old, agreed to a take a mandatory term of 20 years in prison. He waived “the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action;” and he agreed to frustrate any potential journalistic examination of the case brought against him. He waived “all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including without limitation any records that may be sought under the Freedom of Information Act….”
Six weeks later on February 19, Bifield filed a handwritten motion to withdraw his plea on grounds of prosecutorial misconduct. In Tuesday’s countermotion Richardson complains that allowing Bifield to be tried for his alleged crimes before a jury of his peers “would waste the limited resources of the prosecution, the Court, and the public defender’s office.”
The federal racketeering case originally titled United States versus Bifield et al. was astoundingly corrupt even for a biker racketeering case. Before they were arrested the defendants were mostly entrapped by government employees. An examination of the public record, which represents much less than one percent of the evidence against the indicted, contains numerous instances in which there would have been no violation of the law without federal instigation. The defendants were charged with “conspiring” to commit hypothetical offenses created out of thin air by the government. Elements of the supposed conspiracy were specifically game-planned in advance to frustrate an entrapment defense. The arrests were both calculatedly punitive in violation of the Fifth and Fourteenth Amendments and exemplified staged police television events. All of the defendants were indentified in mass media accounts as “Hells Angels” because those media were led to that conclusion by police. The indictment itself stinks of superfluous references to that particular motorcycle club even though most of the defendants were not Hells Angels.
Like all motorcycle club cases this one would have failed without a post-indictment “investigation” that used various forms of duress up to and including physical mistreatment to turn alleged co-conspirators into informants. The duress is inseparable from the entrapments. The defendants were charged with violations of federal racketeering statutes because of the life destroying penalties those statutes provide. Defendants who might be sentenced to a year or less in prison by state courts can and are sentenced to decades in prison and forfeiture of everything their lives have amounted to when they are found guilty of exactly the same actions in federal courts.
All racketeering defendants are blackmailed after they are charged. Every federal defendant is coerced by prosecutors into pleading guilty. So many citizens are arrested for so many things that it is no longer practical to allow each defendant a trial. More than 90 percent of all federal defendants plead guilty to something as part of a “plea deal” and they are generally rewarded with reduced punishment.
In the Bifield case, a member of the Red Devils Motorcycle Club named James Frederick “Big Fred” Keach, Jr. was rewarded with a sentence that totaled ten months for helping to convict his fellow defendants. The indictment describes Keach’s crimes as being no less than the people he helped to convict. Keach was treated differently because he ingratiated himself to his tormenters. In the honor driven, proud and defiant world of outlaw motorcycle clubs, most defendants react to government accusations with either defiance or stoic despair. Keach was treated differently because he was willing to roll over, sit-up, shake hands and beg. And, it is obvious from its treatment of him that Keach was indispensible to the government in order to prove accusations the government had already made. No Keach, no case. No post-indictment blackmail, no Keach.
Keach, like all the defendants in this case, was charged with an overwhelming number of crimes – not merely racketeering but numerous other offenses including “racketeering conspiracy.” Overcharging is a standard tactic. The idea is to overwhelm defendants with a catalog of offenses against which they must defend themselves. It is a way of blackmailing a defendant into pleading guilty to just one of his putative crimes against society. In Keach’s case, as a reward for sacrificing his honor, all but his racketeering conspiracy charge was dismissed.
Fewer than ten percent of all federal defendants who will not “deal,” either because they think they have nothing to lose or because they “think” they are actually innocent of vague charges like “conspiracy,” are actually found innocent. Even if they are actually innocent their lives are usually ruined anyway because the emotional and financial costs of defending oneself in a federal case are terrible. Hector “Largo” Gonzalez, for example, who was briefly president of the Mongols Motorcycle Club, fought a government accusation that he was a racketeer for years until the business that his father had left him was gone, until everything he owned was gone and he was too broke to hire his own lawyer. Then he went to prison.
Ham Sandwich Justice
As a matter of fact, the federal judicial system is gamed to give prosecutors an unfair advantage. This national shame is practically common knowledge.
In 1985, after his own indictment, a New York state judge named Sol Wachtler told inquiring reporters that a grand jury could be convinced to “indict a ham sandwich.”
“Ham Sandwich Nation” is a currently popular and recent essay by the distinguished law professor Glenn Harlan Reynolds – about the malicious prosecution and subsequent suicide of Reddit founder Aaron Swartz. Reynolds leads his essay with a quote from former Attorney General and Supreme Court Justice Robert Jackson who noticed: “If the prosecutor is obliged to choose his cases, it follows he can choose his defendants.” Within a page or so, Reynolds references Harvey Silverglate’s 2011 book Three Felonies A Day, about the Sovietization of American federal justice and Tim Wu’s 2007 essay in Slate titled “American Lawbreaking.” Wu begins his long story with an illustrative anecdote.
“At the federal prosecutor’s office in the Southern District of New York,” Wu writes, “the staff, over beer and pretzels, used to play a darkly humorous game. Junior and senior prosecutors would sit around, and someone would name a random celebrity—say, Mother Theresa or John Lennon. It would then be up to the junior prosecutors to figure out a plausible crime for which to indict him or her. The crimes were not usually rape, murder, or other crimes you’d see on Law & Order but rather the incredibly broad yet obscure crimes that populate the U.S. Code like a kind of jurisprudential minefield: Crimes like ‘false statements’ (a felony, up to five years), ‘obstructing the mails’ (five years), or ‘false pretenses on the high seas’ (also five years). The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: ‘prison time.’”
The game Wu described is eerily reminiscent of one episode in the Bifield case. During the trial of four of the defendants, the jury heard a tape recorded conversation in which FBI Case Agent Devon Mahoney asks master informant Joseph Dillulio, “How are we going to get these guys, Joe? RICO?”
The legal argument between Dan Bifield and Jay Richardson is maddeningly discordant. Bifield complains that he was physically and emotionally abused, lied to and tricked and that his most noble virtues were cynically exploited. Richardson is mostly content to gloat “Gotcha fool!”
This is how Daniel Bifield describes the events that led to his guilty plea.
The Tale Of Diamond Dan
“My name is Diamond Dan. I have been a Hells Angel for over 37 years and I am a man of respect and honor. I am a fair man and a man of my word. I do not disrespect people and I have manners. I am a proud man, husband and Hells Angel! I am dedicated and loyal to what I love and believe in and nothing can take away or change that.”
“I know our federal government has done some illegal stuff. We are all being set-up and railroaded because of who and what I am. A lot of people including my family and friends are being hurt by this. For the record, we are not guilty of these crimes. We are not an organized crime group. We never have been and we never will be. The only organized crime here is by the federal government! The government entraps us, lies about us and tricks us.”
“I am so sick and tired of all these lies and stories the federal government is always making about us. They don’t care who they hurt or use as long as they get what they want. I feel so bad because of all the people and families who have been ruined by the government. I am completely torn apart by all they have done to my beautiful wife Lisa and by the way they are treating her. She does not deserve this! And, all this has happened to her because of me.”
“My wife has helped so many people by putting on support parties and benefits for men, women and children. A man couldn’t ask for a better wife. She has saved me in so many ways. She has given me and taught me so much! When I came to South Carolina I had nothing. Lisa took care of me, gave me a home, supported me and loved me like no other woman. She gave me a family and a reason to want to live and make it in life. She was always on me to do good. You can’t help but to love and like her.”
“Now I’m fighting for my wife, my club and my life. I am at the point where I don’t care what they do to me. I may spend the rest of my life in prison but I would never sell out the people I love and believe in. I will never turn by back on any of them.”
“The feds have ruined and taken everything we had and worked for. They blew up our house! They searched and destroyed it! And, all they found were seven knives! They didn’t have to do all that. We were told and knew they were coming but we had no idea it would be a set-up. I told the cops over and over that they didn’t have to come blow up our house and destroy it. I told them that we had nothing in there.”
“When I stepped outside with my hands up they (the Swat Team) had five red dots in the middle of my chest. And do you know what I told them? I said, “Go ahead and shoot me.” One of the feds ran up to me and tried to push me hard but I pushed back and held my position. I told them they did not have to do all that. I was more worried about my wife. She was so scared, upset and confused! I wanted to run over and hold her. We hardly had any clothes on but they (Swat) didn’t care.”
“They put us in the hole with no visits, mail, phone calls or recreation. We have no clothes. They refused to give me clean clothes, showers, tooth paste, soap or toilet paper. I had to wipe myself with a towel! I weighed 224 pounds and now I weigh 211. The cells were dirty and nasty and ice cold. There was little food and it sucked. Ask my wife all they did to her and how badly they treated her. All of this was at the orders of the feds.”
“Most likely they will not allow my wife bond and that is really wrong! She cries all the time and is so confused about all that is happening. She doesn’t deserve to be in jail. This hurts me so badly. I only care a little about what they do to me but I do care very much about her and my club. You can mess with me but when it comes to my family and club I will fight back with my life. Our legal system and prison system suck. They just expect everybody to roll over and tell – to make a deal.”
“It hurts me to think I will never see my wife or my family again. I may die in prison for believing in what I do and for being what I am. If that is the case let it be so.”
“A man can only take so much bullshit. A human being doesn’t need to be treated like this. It (these conditions) make it hard for me to defend myself and get things done. And that’s the point! If I were free I could get so many more people involved to help us. And, tell the truth! I can’t say much about the case yet. Hell, I don’t even know about the case myself yet! But, knowing the government I am sure they did a lot of illegal and low life stuff. And, now they are saying I can’t write my wife because of the case.”
“U.S. Attorney Richardson and the FBI had Lisa Bifield sign a proffer in July and August of 2012 but withheld this knowledge and information from me on the day I signed my plea agreement. U.S. Attorney Richardson, the FBI and other law enforcement withheld a statement made by Lisa Bifield on June 7, 2012, the day of our arrest, from me on the day I signed my plea agreement. The U.S. Attorney used my wife, Lisa Bifield, to place me under duress for me to sign a plea deal by threatening to put my wife in prison for 14 years and telling her she would never see her 14-year-old daughter again.”
“The U.S. Attorney pressured us to take this one time offer of a plea deal and only allowed us seven days to decide – starting the day after Christmas. We should have been allowed just as much time as the other co-defendants had to decide their plea deals.”
“When I made the plea agreement I wasn’t aware of an agreement that my wife Lisa Bifield had to testify. If that had been the case I never would have taken the plea deal. I was told by my lawyers that Lisa could admit to things that she did with me in the indictment, as part of her guilty plea for acceptance of personal responsibility. I was also told that if she could testify to anything it would help her to get more time off her sentence, which I did not agree to nor ever will! At this time I asked everybody to leave the room so I could talk to my wife. I told her that I didn’t think she was getting a good deal and I didn’t like the plea deal because they gave her too much time for pleading guilty. I also told her I didn’t want her to ever testify to anything. My wife told me she didn’t know anything to testify about – that she wanted to go home as soon as possible to take care of her daughter and that she didn’t want to die in prison. So, I took the plea deal.”
“My plea agreement was to plead guilty to conspiracy of the RICO Act and to receive 20 years with three years probation; that my wife would plead guilty to the gun count for five years with two years probation; and that she would go to a prison camp. Nobody told me or Lisa that she had to testify. Also, nobody told us of the five years to life with five years probation until we heard it in court.”
“I also should have been allowed to have read my wife Lisa Bifield’s plea agreement since I sacrificed myself, my appeals and my rights.”
“Dan Bifield was charged with RICO, RICO conspiracy, narcotics conspiracy, narcotics distribution, Hobbs Act robbery, possession of a firearm in furtherance of a drug trafficking and a crime of violence, money laundering, the business of dealing firearms without a license, selling firearms to a felon, transfer of firearms knowing that the firearms would be used in a crime of violence and drug trafficking, and felon in possession of a firearm.”
“In early December of 2012, Dan Bifield’s attorney, Allen Burnside, initiated contact with the Government to inquire about the possibility of a plea deal that would benefit Lisa Bifield. Burnside initially stated that Dan Bifield said he would be willing to plea if the Government dismissed the charges against Mrs. Bifield. After the Government rejected this suggestion, Burnside responded that Dan Bifield may willing to plea if Mrs. Bifield’s liability was limited….”
“Similarly the defendant’s wife, Lisa Bifield, was charged in a variety of counts involving RICO, firearms, narcotics, and money laundering.”
“Lisa Bifield first provided a statement to law enforcement on the day of her arrest, June 7, 2012. Then, after discussions with appointed and retained counsel, Lisa entered into a proffer agreement with the Government. She was debriefed pursuant to that agreement in July and August of 2012. After those debriefings, Lisa’s counsel indicated that she no longer wished to cooperate because the proposed plea to Count 2 (RICO Conspiracy) depended on a Rule 5K motion and failed to assure her of a specific sentence (her counsel suggested she wanted no more than five years). Based on the Government’s estimation, Lisa Bifield’s guilty plea would subject her to a guideline range of approximately 14 years before any departure based on cooperation. Absent a guilty plea, Lisa faced a mandatory minimum of 15 years and a guideline range in excess of 20 years. When Burnside contacted the Government regarding plea negotiations in December of 2012, Lisa Bifield had previously indicated that she was no longer willing to cooperate and the Government was preparing for trial against her and the remaining defendants.”
“After taking the joint plea offer to his client, Burnside inquired whether the cooperation language for Mrs. Bifield could be removed. The Government explained that the joint plea deal required Mrs. Bifield’s cooperation. Indeed, prior to the entry of the guilty plea, the Government and Burnside were involved in a discussion about the importance of Lisa Bifield cooperating fully and truthfully in order to get the benefit of the plea agreement and to avoid the likely harsh sentence that could result if Lisa breached her cooperation agreement.”
On December 27, 2012, Government counsel, Dan Bifield’s counsel (Burnside and Kathy Evett), Lisa Bifield’s counsel (Wesley Locklair), Special Agent Mahoney and other law enforcement agents met with Dan and Lisa Bifield to allow them the opportunity to discuss the plea offer. The plea offer was discussed with both defendants. Dan and Lisa Bifield then asked to speak with one another in private to discuss the plea offer. Dan and Lisa Bifield then were allowed to speak with Special Agent Mahoney present in the room. In this December 27 meeting, Lisa Bifield and Special Agent Mahoney expressly discussed with Dan Bifield the fact that pursuant to her plea agreement Lisa Bifield would have to testify against the co-defendants, as well as against others. Special Agent Mahoney explained to Dan Bifield that if all defendants pleaded guilty then Lisa might not have to testify. During the discussions, Dan Bifield stated that he did not like that Lisa was going to testify because that was not what “we” do. Lisa assured him that it was she who was testifying and that she needed to cooperate so that she could get the plea deal. Dan responded that they were a package and he did not like her testifying against the Hells Angels. However, Dan stated that if Lisa wanted him to agree to the deal, then he would do so.3 The defendant and Mrs. Bifield signed their respective plea agreements.”
“During the plea hearing on January 3, 2013, this Court determined that the plea was made knowingly and voluntarily by Dan Bifield. It did so based on its extensive, standard questioning of Dan Bifield in which he affirmed, inter alia, that he was satisfied with counsel, that he had not been pressured into pleading, and that he agreed with the factual summary provided by the Government.”
“Pursuant to the Court’s scheduling order, the Government disclosed to trial counsel the cooperating witness’ plea agreements and reports of interviews on January 18, 2012. Additionally, the Government announced in open court the potential witnesses, which included cooperating co-defendants.”
“Dan Bifield filed a handwritten motion to withdraw his Rule 11 guilty plea on February 19, 2013.”
“When the trial court conducts a Rule 11 colloquy and finds the plea to be knowingly and voluntarily entered, absent compelling reasons to the contrary, the validity of the plea and the defendant’s corresponding guilty are deemed to be conclusively established.”
Richardson’s statement that Agent Mahoney was in the room while Dan and Lisa Bifield discussed how he might sacrifice himself for her is a particularly nice touch. Presumably, Mahoney’s testimony as an officer of the court will trump the Bifield’s recollections of their first moments together since their arrests.
Rule 11 Colloquy
The cynical procedure called a Rule 11 colloquy to which Richardson refers in his countermotion requires federal defendants to lie when they make a plea deal.
In a book titled Out Bad, the author describes a Rule 11 colloquy like this:
“How far did you advance in school,” a judge would ask sweetly, or sternly or jocularly, as he or she began the interrogation that verified the “competence” of the confessed criminal.
And before he would answer the wise defendant would always whisper something to his lawyer. And, only after the lawyer whispered back would the defendant dare to say, “High school.” Or, “Ninth grade.” Or, “I dropped out of college.”
“And, are you aware that you may be giving up certain of your rights, like the right to vote or own a gun or serve on a jury?”
Whisper, whisper. “Yeah, probably astronaut is also out of the question,” the lawyer would advise confidentially.
Whisper, whisper, nod. The defendant answers the judge, “Yeah, right.”
“And are you in fact actually guilty?”
Whisper, whisper. Bitter, little laugh. And then the slight smile that means that the defendant is about to turn forever to stone. “Yeah. Guilty.”
The judge would decree that the confessed criminal was “in fact” guilty and then the defense attorney would always say, “Thank you, your honor.”
The prosecutor would always say, “Thank you, your honor.”
That was always the best part: As the Deputy Marshalls led the “convicted” man away in his orange jump suit, in a belly chain and cuffs and sometimes in shackles; as the opposing sides stuffed files back into their expensive leather cases; before they would go out into the hall to smile about last summer in Rome or on the Costa del Sol; the opposing lawyers would always thank the judge.
More foolish questions than a thousand wise men could answer flow from this episode of American justice – this debate over whether Dan Bifield is “in fact” guilty now that everybody has thanked the judge. Richardson seems to think he has “proven” Bifield’s guilt.
One line of questioning in the standard colloquy goes approximately like this:
“I will explain to you your Constitutional rights. Make sure that you understand what they are and that you’re giving all of them up if you enter this plea.
“You have the right to continue to plead not guilty and go to trial. You could have a speedy and public trial before me sitting as a judge or before a jury. If you had a jury trial, your attorney and the United States attorney would select twelve people from the community. They would sit in that jury box and listen to the evidence against you. They could not convict you unless all twelve of them were convinced beyond a reasonable doubt that every element of this charge was true.
“You would have the right to see and hear and confront and cross examine the witnesses against you. You could use the subpoena power of the court to bring witnesses into court to testify for you. You could take the stand and testify or remain silent. I would instruct the jury that they could not infer that you were guilty because of your silence.
“Do you understand all those rights? And do you give each of them up?”
One foolish question that flows from this case is, “Why would Dan Bifield give up his rights.” Why did the judge think he renounced his rights? What did Richardson think?
The answer is obvious. Richardson’s motion even alludes to it. Dan Bifield, a man of a certain age, fell on his sword to save the love of his life. He sacrificed himself for her.
Which immediately invites another naïve question which is, “Why did he have to do that.” And, the obvious answer is that the great weakness Mahoney and Richardson found in Diamond Dan Bifield was Lisa; as in Room 101, O’Brien found Winston Smith’s great weakness was rats. Bifield was mistreated in jail and he was terrified that his wife was being mistreated too.
There is no human decency, compassion or honor in Richardson’s motion. After blackmailing Bifield into pleading guilty with implied threats to his wife, Richardson justifies his accomplishment with numerous references to obscure judgments of the law.
To a fool, this example of American justice seems simple. To a fool, Richardson himself seems guilty of violating South Carolina Code 16-17-640. That law says: “Any person who verbally or by printing or writing or by electronic communications: (1) accuses another of a crime or offense; (2) exposes or publishes any of another’s personal or business acts, infirmities, or failings; or (3) compels any person to do any act, or to refrain from doing any lawful act, against his will; with intent to extort money or any other thing of value from any person, or attempts or threatens to do any of such acts, with the intent to extort money or any other thing of value, shall be guilty of blackmail.”
And what thing is more valuable than freedom? Unless it is love.