OFF THE WIRE
BY: Andrew Clevenger
Source: wvgazette.com
West Virginia - Government is wrongly criminalizing membership and violating 1st Amendment, defense
CHARLESTON, W.Va. -- In the early hours of Oct. 6, 2009, scores of federal agents fanned out across West Virginia and several other states, armed with arrest warrants for dozens of members and associates of the Pagans Motorcycle Club.
Several teams also carried search warrants for any Pagans paraphernalia in the suspects' homes.
On Thursday, four defendants argued that the government had wrongly collected various items and statements, and asked U.S. District Judge Thomas E. Johnston to ban prosecutors from using them at trial.
The government is using circular logic to support its racketeering case, defense attorneys suggested. According to them, prosecutors are saying the Pagans are a criminal organization, and evidence of membership is relevant to the criminal activity -- but proof of membership is needed to prove that Pagans acted together to commit racketeering crimes.
This wrongly criminalizes being a member of the Pagans, in violation of their freedom of association under the First Amendment, defense attorneys said.
Assistant U.S. Attorney Steve Loew said the government has to prove the defendants are part of the organization, and limiting the government's ability to lawfully collect evidence would impede the prosecution's case.
Linking defendants to the Pagans helps to establish the underlying racketeering offense, as well as their participation within the criminal organization as a whole, Loew wrote in court filings.
Nicholas Preservati, who represents the Pagans' Orlando chapter president, Martin Craig Nuss, said Thursday that his client readily admitted being a member of the Pagans.
"These individuals aren't embarrassed that they are Pagans," he said. "They aren't trying to hide it."
Seizing Pagans paraphernalia from his house doesn't have anything to do with whether Nuss mailed and personally delivered proceeds from an illegal motorcycle raffle across state lines, the lawyer said.
"They're trying to obtain evidence [of membership in the Pagans] to prove that he sold raffle tickets," Preservati said. "How do shirts and jackets and coffee mugs show that he sold raffle tickets?"
Loew said that members' "cuts," or "colors," as bikers' sleeveless denim jackets are called, not only show membership, but the location of particular patches on the vests indicates rank within the organization.
In addition to Pagans paraphernalia, defendants tried to suppress other items found during searches.
Tim Carrico, who represents Eric W. "Fritz" Wolfe, said agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives had no reason to believe Wolfe couldn't legally possess a gun when they recovered a pistol using a pawn ticket they found at Wolfe's St. Albans house.
Wolfe and his wife pawned the gun on May 26, 2009. Prosecutors later charged him with possessing a gun while being an illegal user of cocaine, but there was no evidence in October to suggest the gun was evidence of a crime, Carrico said.
Government is wrongly criminalizing membership and violating 1st Amendment, defense says
He also argued that agents found the pawn ticket when they illegally searched the couple's cars, which were not covered by the search warrant.
Agents testified that Wolfe's wife voluntarily gave them the pawn ticket, and that she also gave them permission to search the cars.
Another defendant, Kirk Norman "Razor" Dean, said that he gave permission to search his truck under duress after he was handcuffed at the door to his Dunbar house when agents rushed in with guns drawn.
He told agents that he had a properly licensed gun in a compartment between the truck's front seats. They also found two axe handles under the truck's rear seats.
"I had nothing to hide," he said when his lawyer, Jim Cagle, asked him why he agreed to the search. "And if I had refused consent, they would've gotten a search warrant [for the truck] anyway."
ATF Special Agent Jesse Hooker said that after the initial rush into the house, Dean and his girlfriend were very cordial as they sat on a couch in the living room as agents looked around.
There was even laughter when agents found a T-shirt emblazed with the letters ATF -- short for All Those Fools, Hooker said.
Dewayne Haddix, an ATF agent based in Clarksburg, said that when he asked Elmer Luke "Tramp" Moore if there were any drugs in his Weston house, Moore said there might be some cocaine residue in a container by his bed.
Moore said cocaine was cheaper than Viagra, and he didn't have to visit a doctor to get it, Haddix said. Indians had been using it for hundreds of years, Moore said, according to Haddix.
Moore's lawyer, Jim Roncaglione, asked the judge to suppress Moore's statements because they were made before he had been read his rights.
Of the 55 defendants named in a sweeping, 44-count indictment unsealed in October, 35 are scheduled to go to trial on May 4, including Nuss, Wolfe, Dean and Moore. Nineteen have entered guilty pleas to charges that include helping stockpile explosives as part of an ongoing feud with the Hell's Angels Motorcycle Club, intimidating other motorcycle clubs, extortion and selling drugs.
Earlier this week, federal prosecutors dropped all charges against Rocco J. "Rocky" Boyd, of Little Ferry, N.J., after he pleaded guilty to unlawfully aiding and abetting in the promotion of a raffle, a misdemeanor, in Kanawha Magistrate Court on March 19.
Boyd, who was accused in federal court of transporting raffle proceeds across state lines and participating in the alleged beating of a confidential informant in a New Jersey hotel room in January 2009, was fined $5 plus court costs.
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