It’s A Club! Not A Gang!

It’s A Club! Not A Gang!
If you are a biker, especially if you are a patch holder, you only
have to read the next paragraph.

When your club gets hit with a RICO charge the first thing you should
do is call an attorney is West Virginia named Deirdre H. Purdy. Her
phone number is 304-655-7232. You may also find yourself in need of an
expert witness to rebut the ridiculous things the ATF and the DOJ is
saying about you. Your expert’s name is William L. Dulaney. And his
phone number is 828-227-2329. You already know almost everything else
in this article, whether you have ever actually bothered to say it out
loud or not. Have a beer.

If you are a loyal reader who happens to be an FBI or an ATF Agent or
a prosecuting attorney keep reading. No beer for you. Consider this is
your final warning. Defense attorneys, do your damn job.

Everybody else. Your call.

The Pagans Case

Last fall, 55 members and associates of the Pagans Motorcycle Club
were hit with a 44 count indictment that called the club a “racket.” A
fistful of defendants, including former Pagans National Vice President
Floyd B. “Jesse” Moore have already been bullied into “confessing”
that the Pagans is a racket.

Specifically, the indictment (and a superseding indictment filed three
weeks ago) describe the motorcycle club as “a criminal organization
whose members and associates engaged in kidnapping, robbery, extortion
and conspiracy to commit murder.” The indictments also state that “the
purposes of the enterprise included…enriching the members and
associates of the enterprise through, among other things, extortion,
robbery and the operation of an illegal gambling business.”

A similar indictment with similar results was filed against the
Mongols Motorcycle Club 17 months ago.

Earlier this month Purdy, who is one of the defense attorneys in the
Pagans case, wrote a motion that attacked extensive passages in the
indictment itself as “both irrelevant to the (actual) charges and
prejudicial to the defendant(s).” Purdy characterized portions of the
indictment as “surplusage” which is a legal way to pronounce bullshit.

Loew Strikes Back

Two weeks ago, on February 10th, Assistant United States Attorney
Steven I. Loew, the author of the indictment, defended his choice of
words.

Loew justified his colorful descriptions of the Pagans by arguing
that, “The defendants are indicted for crimes they committed that were
related to their membership in, and their association with, the Pagan
Motorcycle Club, its support clubs and associates. The indictment
charges that the defendants are a part of a criminal enterprise, and
that those members, as individuals, committed crimes.”

Loew then went on to tell the judge in the case, Thomas Johnston, that
“since all the defendants were members of the Pagans or one of its
support clubs, it is obvious that describing the criminal enterprise
is material and relevant to the charged offenses.”

Among the accusations in the indictment that Loew thinks are perfectly
reasonable to throw around are:

Pagans Are Criminals

“The Pagans Motorcycle Club (PMC) was a national criminal organization
located primarily in the eastern half of the United States.”

“The Pagans was territorial and protected its territory from rival
motorcycle gangs through the use of violence and intimidation. Two of
the Pagans’ main rival motorcycle gangs were the Hells Angels
Motorcycle Club and the Outlaws Motorcycle Club. When members of rival
motorcycles gangs, members of motorcycle clubs who associated with the
rival motorcycle gangs, or people who wore clothing such as shirts or
jackets with the names or logos of rival motorcycle gangs ventured
into what the PMC considered to be its territory, PMC members and
associates intimidated, threatened, attacked, beat, robbed, and
sometimes killed them.”

“Once a week, usually on Saturday or Sunday evenings, these local
chapters held weekly meetings referred to as ‘church.’ A full member
of the Pagans MC could be identified by his ‘colors’ or ‘cut,’ which
was a sleeveless denim jacket bearing several patches affixed at
specific places. These patches included, but were not limited to, a
patch containing the word ‘Pagans’ and a ‘1%’ patch. Members of the
Mother Club wore a ‘13′ patch on their cut, signifying the traditional
number of members in the Mother Club, and a 1% patch on the bottom
back of their cut. Chapter presidents wore the 1% patch at the top
back of their cut. The 1% patch signified the Pagans’ ‘outlaw’ status.
‘Outlaw’ motorcycle clubs took pride in themselves as the 1% of
motorcycle riders who were not law abiding. Pagans members also owned
various items of personal property bearing the word ‘Pagan’ or
‘Pagans’ and various logos, insignia, emblems, and slogans signifying
their membership and status in the Pagans.”

Everybody Knows Pagans Are Criminals

“The Pagans made money from its support clubs,” the indictment
continues, “and the Pagans Motorcycle Club increased its power and
influence by having more support club members. Accordingly, the Pagans
and its existing support clubs unlawfully threatened and intimidated
people who wanted to start a motorcycle club in Pagans territory and
attempted to get the people to support the PMC and to not support any
of the Pagans’ rivals. Pagans and support club members would confront
and intimidate law abiding citizens and force them to get ‘permission’
from the Pagans before starting even a lawful motorcycle club, and
made them get ‘approval’ from the Pagans for the club’s name, logo,
and the type of patches the lawful club could wear.”

Loew also thinks it is perfectly reasonable to state in an indictment
that “The purposes of the enterprise included the following: a)
Enriching the members and associates of the enterprise through, among
other things, extortion, robbery, and operation of an illegal gambling
business. b) Preserving and protecting the power and territory of the
enterprise through the use of intimidation, violence, threats of
violence, assaults, and other violent crimes. c) Keeping victims and
rivals in fear of the enterprise
and in fear of the enterprise’s members and associates through threats
of violence and through violence.”

Or Maybe Not

Purdy filed her reply a week later and she summarized the government’s
argument as: “1) the Club is a criminal organization, 2) all
defendants are members or quasi-members of the Club, and 3) therefore,
all defendants are criminals. According to the Government, because the
club is a ‘criminal enterprise’ and its members are all criminals, any
and all descriptions of the club and its members, however prejudicial,
are relevant and material to charges in the indictment. The street
term for this argument is ‘guilt by association.’”

“Both the original and superseding indictments contain many highly
prejudicial and irrelevant characterizations and descriptions of the
Club and its members, their dress, customs, philosophy and beliefs,
and curious symbols and insignia” which Purdy characterized as
“scurrilous” and “unnecessary.”

Then she argues an obvious point that seems to have alluded each and
every one of the attorneys in the Mongols case.

“RICO violations may be proved against individuals who do criminal
acts within any legal organization or any association-in-fact. For
example, pedophile Catholic priests performed criminal acts while
associated with the Catholic church. Further, those pedophile priests
were sheltered and protected from the law by church officials, who
knew of the criminal acts but obstructed justice by hiding and not
reporting them, while seeking to keep the church itself from stigma
and reprehension. The acts of the church officials were done to
maintain, enhance or protect the officials’ status within the Catholic
church. Such activities, if proven, are RICO crimes, but a RICO
conviction for those individuals would not make the Catholic church
itself a criminal organization, much less an international criminal
organization.”

Astoundingly Obvious Except To Police

Purdy raises another point that never seems to be said out loud in
biker cases. “The Club is first and foremost a motorcycle club. Its
members join to associate with others who love to ride motorcycles,
particularly large Harley-Davidson motorcycles. They enjoy riding in
groups, partying together, and admiring one and others’ motorcycles,
motorcycle after-market paraphernalia, and motorcycle paint jobs. They
often dress in leather pants and jackets which, despite the
now-ancient association with biker movies and Marlon Brando, are
actually extremely safe riding gear because leather provides excellent
protection from road burn in an accident. Members attend motorcycle
expos or conventions where dealers set up booths to sell bikes,
clothes, seats, saddlebags, after-market parts, books and offer the
myriad kinds of merchandise associated with motorcycle ownership,
riding, and club membership. These are the purposes for which members
join this club. It is not criminal to be a Pagan Motorcycle Club
member.”

“No count of this indictment alleges any criminal activity by the Club
itself because the club itself is not a defendant. For example, it is
not alleged that the Club was involved in illegal drug sales or
distribution. Instead, some club members used illegal drugs, which
were not supplied by club members but by outsiders, including a
government informant. Similarly, some club members were prohibited
from owning guns, but owned them. All the violence and threats of
violence in the indictment are charged against some club members.
Knowing association with criminals for noncriminal purposes is not
criminal.”

What Racketeering

Purdy also challenges the whole motorcycle club as racket theory.

“The indictment charges the Club is nothing but a criminal enterprise
and that its first criminal purpose is to ‘enrich the members and
associates,’ she observes. But, “There is only one crime-for-money
charged in this many-count indictment. It is charged that local clubs
in Pennsylvania, New Jersey, Maryland, and Florida held motorcycle
raffles and that sixteen defendants rode across various state lines to
West Virginia with the raffle proceeds. According to the indictment,
the raffle money was ‘proceeds of unlawful activity’ because the
raffles were, for example, not registered with the appropriate
secretaries of state. Even assuming, arguendo, that the raffle money
actually was unlawful proceeds, all of that money was allegedly
delivered only to two defendants: Defendants David Keith Barbeito and
Floyd Moore. Assuming that the remaining 54 defendants purchased
tickets, these defendants were not enriched, but impoverished by these
transactions.”

The defense attorney contests the allegation that, “The second and
third purported criminal purposes are preserving the power and
territory of the enterprise while keeping victims and rivals in fear
through threats of violence and through violence. The indictment sets
these out as distinct criminal purposes, but actually they are simply
two variant statements of the same idea, the Club’s purpose to
preserve power and territory. Preserving power and territory are not
criminal purposes per se. Almost every human organization shares these
goals in some degree.”

Purdy also objects to the description of club members as “gang
members” and calls that a violation of “each defendant’s First
Amendment right to association for non-criminal purposes and each
defendant’s Fifth Amendment due process right to the presumption of
innocence.”

And finally she compares the virtually boiler plate language
government attorneys have used to describe motorcycle clubs as, “…a
good description of the Catholic church, the Boy Scouts, Home Depot
and Federal Express….”

Wait It Gets Better

Finally, at long last, a defense attorney in a biker case actually
says out loud.

“The surplusage portions of the indictment read like the promo for a
new television series: Biker Gangs, Outlaw Rivals,” Purdy writes.
“Defendants’ Fifth Amendment presumption of innocence is offended by
the government’s press release approach to this case. The Government
should try this case in the courtroom, not by calling names in the
court of public opinion.”

Finally, Purdy challenges a greater giant than even she probably
realizes. If the government insists on calling the Pagans a racket,
she warns, the government better be able to prove it.

“The charges that the Club is a national criminal organization, a
criminal enterprise, and a gang of outlaws are unnecessary,
irrelevant, untrue, unsupported by the remainder of the indictment,
and highly prejudicial,” Purdy writes. “If the Court does not strike
this language as surplusage, Defendants move the Court to hold a
hearing under Federal Rule of Evidence 104, concerning preliminary
matters, and require the Government to prove by a preponderance of the
evidence that the club is a national criminal organization and that
all of its members are ipso facto criminals.”

And, then to back that up, Purdy tells the court she is ready to call
an expert witness.

The Expert

The expert is Dulaney. In most of these cases the “expert” is either
an ATF Agent who has made a career of harassing bikers, someone like
John Ciccone, Darrin Koslowski or Jay Dobyns, or an out and out fruit
cake like Chuck Schoville from International Outlaw Motorcycle Gang
Investigators Association. Dulaney is a professor at Western Carolina
University.

His doctoral dissertation was titled, Over the Edge and into the
Abyss: The Communication of Organizational Identity in an Outlaw
Motorcycle Club. And the chances are good that you have seen him on
television.

Dulaney has been interviewed on camera for three biker exposes on The
National Geographic Channel: Inside the Outlaws, Bandido Nation and
Women in the Outlaw Biker World. A fourth program for the same network
called The Biker’s Rub is in production. Dulaney also appeared on the
Gangland episode The Outlaws and in a Biography Channel episode titled
The Hells Angels. Dulaney is also the author of a reasonably informed
history of motorcycle clubs that appeared in the International Journal
of Motorcycles Studies.

He introduces himself to the court by explaining, “My research agenda
includes comparing government, law enforcement, and media claims about
motorcycle clubs with socially valid evidence. The result of this
inquiry overwhelmingly shows that media and law enforcement paint an
inaccurate picture of motorcycle clubs, one that is stuck in the past
and does not represent the contemporary reality of motorcycling
organizations.”

What Dulaney Will Testify

Dulaney has already summarized, “testimony that I would be prepared to
offer and further support at a trial or hearing on this matter, if the
Court qualifies me as an expert.”

Among the highlights of what he is prepared to testify are:

“The Pagans Motorcycle Club (PMC) is not a criminal organization or a
national criminal organization. Instead, the PMC is best described as
a series of motorcycle organizations predominately scattered across
the Eastern United States whose members are overwhelmingly not
criminals. The PMC is a relatively small motorcycle club with chapters
coming into and out of existence over time in locations limited to
Florida, West Virginia, Eastern Pennsylvania, Ohio, Maryland,
Delaware, New York, and Kentucky.”

“Beginning in the 1970s, throughout the 1980s, and ending in the
mid-1990s, some individuals who rose to prominence and leadership
positions in motorcycle clubs were involved in organized crime;
however, federal prosecutions at the time largely eliminated such
activities.”

Motorcycles, Raffles And Territory

“Many PMC members’ lives revolve almost entirely around the sport of
motorcycling…. Members also experience great satisfaction working on
their motorcycles to enhance the appearance and performance of their
machines, which in turn enhances the status a member enjoys in
motorcycle culture in general. Criminal activity does not enhance
one’s status in the organization. This is a myth associated with
‘biker gang’ stories.”

“Raffling off motorcycles is a common fund-raising activity within the
PMC and other motorcycle clubs. It is not understood by members as a
‘scheme,’ in the sense of being an illegal activity. (I do not
personally know whether each raffle charged herein was managed
according to the particular laws of each state where it was held.) My
point is that presumptively legal raffles are commonplace in
motorcycle culture generally. Funds raised from these events are
almost always used for charity causes, ranging from
internationally-recognized organizations, such as United Way, to local
motorcyclists’ or club members’ family with serious illnesses.
Motorcycle raffles and other fund raising events, such as annual
Christmas Toy Runs and Blood Runs for the Red Cross are one of the
reasons members join motorcycle clubs like the PMC.”

“Motorcycle clubs do establish themselves in certain areas or
territories, but the extent of ‘territories’ serves mainly to limit or
negate interaction with other motorcycle clubs. Most of this
territoriality expresses itself symbolically, through the wearing of
patches or other symbols associated one club rather than another. The
PMC’s colors appear more like a mechanic’s uniform than “outlaw” club
colors, and the PMC does not include a territory patch (e.g., bottom
rocker) in their club colors. Such territoriality is also associated
with volunteer fire departments, 4-H clubs and Moose, Elk and Rotary
Clubs, Masonic Lodges, and other civic organizations.”

Keeping Peace

“There is a hierarchy that defines general motorcycle club culture. It
is taught to and known by all as “motorcycle club etiquette.”
Motorcycle club etiquette is simply one form of rules that all unique
cultures or sub-cultures create in order to preserve peaceful
coexistence. The one-percent clubs represent the pinnacle of the
culture and so are responsible for keeping order in their territories.
Established clubs may warn newcomers about the symbolic meaning of
certain colors or patches to protect them from making errors from
ignorance.”

“The Indictment states that the ‘PMC had clearly established ties to
other motorcycle clubs . . . used to facilitate illegal activity.’ In
fact, the opposite is true, in that the most dominant club in an area
has a duty of keeping the peace among clubs in the area. Motorcycle
club etiquette, mentioned above, can be described as a form of speech
code that members of a culture or sub-culture must understand in order
to belong to that culture. This is true of many well-known
organizations, some considered ‘secret societies,’ such as Masonic
Lodges and university fraternities and sororities. The PMC must
enforce the rules of the culture – rules they did not create – in
order for all other motorcycle clubs subordinate to them to operate
without disturbance or disagreements within a given territory.”

“My purpose (in testifying)” Dulaney concludes, would be “to provide
an accurate portrayal of the Pagan Motorcycle Club and to point out
that images from popular culture appear to have colored the creation
of the descriptions of the PMC in the indictment.”