CHARLESTON, W.Va. - Pagan's charges dropped after informant sends e-mails

OFF THE WIRE

Source: wvgazette.com
By Andrew Clevenger


CHARLESTON, W.Va.
Federal prosecutors have asked a judge to dismiss all felony charges against a member of the Pagans Motorcycle Club from Florida after a key government witness said he was innocent.
Last month, James R. "Pagan Ronnie" Howerton -- who began working as a confidential informant for the FBI in 2004 -- e-mailed Martin Craig Nuss' defense attorney and said he was surprised that Nuss had pleaded guilty to interstate travel in aid of racketeering.
Nuss, 44, the Orlando, Fla., chapter president of the Pagans, admitted in July that he traveled from Florida in April 2008 to deliver his chapter's proceeds from a an annual motorcycle raffle to Pagans national vice president Floyd B. Moore in St. Albans.
"The reason that I know Martin didn't think that it was an illegal lottery is because he and I had several conversations about it every year that he participated and I pointed out to him that not only had I been told by Floyd Moore a.k.a. Jesse 13 that it was totally legal but I gave Martin and others the example of the different organizations that did the same thing," Howerton wrote.
Charleston attorney Nick Preservati, who represents Nuss, said Friday that he was shocked to receive Howerton's e-mail, which essentially cleared Nuss.
"To have the confidential informant for five years -- who the case was built around -- tell you in writing that your client is innocent is every defense lawyer's dream," he said.
Having a paid government agent admit that he encouraged Nuss, whose biker nickname is "Martin One Percent," to participate in the lottery after assuring him that it was legal gave Nuss a strong entrapment defense, he said.
"[Nuss] and I had more than one hour-long conversation about [the raffle] and he didn't like being forced to sell tickets that were bogus," Howerton wrote in a subsequent e-mail. "That is why he bought most of the tickets himself."
In another e-mail, Howerton, who at the time was Moore's personal sergeant-at-arms, making him the third highest ranking member of the Pagans, wrote that Nuss had no intention of committing any crime when he participated in a Pagans event in Richmond, Va., in 2006.
"I personally informed Martin of the event and that Jesse 13 [Moore] wanted him to bring fellow Orlando Pagan Tom," Howerton wrote, referring to an otherwise unidentified biker. "Martin also brought along Tina, his girlfriend then, wife now."
Preservati forwarded the e-mails to federal prosecutors, who subsequently offered Nuss the same deal they cut with 17 other out-of-state defendants who allegedly transported raffle proceeds to West Virginia: In exchange for pleading guilty to a gambling misdemeanor in Kanawha County Magistrate Court and paying a $5 fine, all federal charges would be dismissed.
Nuss entered his plea in state Magistrate Court on Thursday, and Assistant U.S. Attorney Steve Loew filed a motion to dismiss all six federal felony charges against him the following day.
As described in the U.S. Attorney's Manual, the government's "petit policy," which indicates that federal prosecutors generally don't charge defendants who have already been prosecuted for the same conduct in state court, Nuss' state plea appears to preclude further federal prosecution.
U.S. District Judge Thomas E. Johnston has not signed off on the deal, so it is still pending, Preservati said, adding that he did not think that government acted in bad faith.
"I want to make it clear that I don't know what Mr. Howerton was telling the government. But I have no reason to believe that the government misled me or Mr. Nuss. They were surprised by the e-mails I sent them," he said. "Once they saw the e-mails, there was no hesitation. The government recommended dismissal."




Nuss had maintained his innocence all along, and only agreed to plead guilty to one count after the government added two racketeering charges in a superseding indictment in February, he said. If convicted on all of the charges, he could have spent years in prison, so he took the deal.



"Mr. Nuss was adamant that he did nothing wrong. It's ironic that he was ultimately vindicated by his original accuser," he said.



And while Nuss was willing to accept responsibility for his own actions in his previous plea deal, he refused to cooperate with the government and provide any information about alleged crimes committed by others.



Unlike some other defendants, Nuss did not spend a long time in custody after he was indicted, but he did suffer other consequences.



"He told me as a result of the charges, he lost his truck, his job and almost lost his house," Preservati said. A few months ago, Nuss was able to go back to work fulltime for a well-drilling company, he said.



"He viewed the Pagans as an opportunity to be around other people who enjoyed riding motorcycles and drinking beer," his lawyer said. The Orlando chapter is very small, and he took his wife with him on all the rides.



In October 2009, federal agents fanned out across eight states and arrested 55 members and associates of the Pagans charged in a sweeping, 44-count indictment. Nuss was the only defendant from Florida.



From the outset, defense attorneys have questioned the credibility of the government's paid confidential informants.



Wes Hudnall, who posed as a prospective Pagans member while being paid by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, died in June of an apparent suicide. Hudnall had a history of mental illness, and admitted that he used illegal drugs without his handlers' permission.



Howerton, who was convicted of second-degree murder in the 1980s, twice wrote letters using his real name to the judge, accusing prosecutors of ignoring evidence he had provided of other crimes.



Defense attorneys have maintained that Howerton -- whose codename was "Sutar," after the Norse fire god depicted holding a flaming sword in the Pagans' logo-- instigated, escalated or created the opportunity for crimes to bolster and protect his position as a paid informant.



Ultimately, the majority of the defendants either pleaded guilty to vastly reduced charges or entered deals with prosecutors where their charges will be dropped if they stay out of trouble for a year.



Reach Andrew Clevenger at acleven...@wvgazette.com or 304-348-1723.