Canada - Hells Angels face new trial on criminal organization charges

OFF THE WIRE
KIM BOLAN
 vancouversun.com

VANCOUVER - The B.C. Court of Appeal has overturned a judge who said prosecutors could not proceed with criminal organization charges against two Hells Angels.
That clears the way for a new trial against John Punko and Randy Potts, who were drug trafficking in the mid-2000s while they were both full-patch members of the notorious biker gang.
It was the third time in a year that the Appeal Court overturned B.C. Supreme Court Justice Peter Leask in a case involving the Hells Angels.
Appeal Court Justice Pamela Kirkpatrick announced the ruling in courtroom 70 of the Vancouver Law Courts Thursday as federal prosecutors, defence lawyers and reporters listened in.
Neither Punko nor Potts were present. Both are serving trafficking sentences that were quadrupled in earlier appeal court rulings.
Kirkpatrick agreed with federal Crown who said Leask was wrong in November 2009 when he ruled that prosecutors could not proceed with gangsterism charges against Punko and Potts.
Leask reasoned that because a jury had already acquitted the pair and two other club members of all criminal organization charges during the summer of 2009, the Crown could not get a second crack at litigating the same charge.
But Kirkpatrick said she was not satisfied "that the issue of whether the East End Hells Angels was a criminal organization was clearly and unequivocally decided in the first trial."
"It follows that I would allow the Crown appeal and order a new trial on the criminal organization counts on which the accused were acquitted," Kirkpatrick said in her 30-page ruling.
Leask made his original order after a pre-trial motion by defence lawyers who said the Crown should be "estopped" -- prevented -- from arguing that the East End chapter of the Hells Angels was a criminal organization at the second trial of Potts and Punko. At the time, they were also facing charges of producing and trafficking methamphetamine.
Leask said the earlier jury had decided that the East End Hells Angels was not a criminal organization or they wouldn't have acquitted on that count.
But the Crown argued that the jury might have acquitted simply because they didn't feel that the evidence showed the crimes in the first case were committed for the benefit of the Hells Angels, as opposed to deciding the biker gang was not a criminal organization.
On appeal, the Crown said Leask erred by speculating on the jury's reasons when they are unknown.
Kirkpatrick agreed, saying: "The trial judge ultimately failed to properly apply the legal test and thus erred in law."
Both Punko and Potts pleaded guilty to their drug charges. Leask handed Punko a 14-month sentence and Potts just 12 months after Leask criticized police tactics in the investigation.
But last month, the appeal court upped Potts sentence to five years, saying Leask had erred.
And last August, the appeal court more than quadrupled Punko's sentence.
Potts and Punko were arrested in July 2005 as part of the RCMP's $10-million crackdown on the East End chapter of the Hells Angels.
kbolan@vancouversun.com
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