Free Reply to Response - District Court of Arizona - Arizona

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JOSEPH E. ABODEELY Attorney at Law Arizona State Bar # 2683 1345 West Monroe St. Phoenix, Arizona 85007 Tel: (602) 253-2378 Fax: (602) 253-3342 [email protected] Attorney for Craig T. Kelly

6 UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ) No. CR-03-1167-PHX-DGC ) ) DEFENDANT KELLY'S REPLY TO RESPONSE ) TO DEFENDANT'S MOTION TO SEVER COUNTS ) AND DEFENDANTS 12. Craig T. Kelly, et al., ) Defendants. ) ______________________________) Defendant, CRAIG T. KELLY, by and through his counsel, undersigned, hereby replies to the Government's Response to Defendant's Motion to Sever Counts and Defendants for the reasons stated in the following memorandum of points and authorities. MEMORANDUM OF POINTS AND AUTHORITIES The Hells Angels Motorcycle Club (HAMC) is not a monolithic organization in Arizona. On October 18, 1997, six separate charters of the Dirty Dozen Motorcycle Club were given full membership in the Hells Angels Motorcycle Club after a 14 month period of being HAMC "prospects". There is no HAMC of Arizona except what the government agents contrive. There is no "Arizona" organization as such­no Arizona president, secretary, or treasurer, but there are joint meetings with representatives of the six charters attending to discuss matters of interest to the individual charters The activities of the charters include motorcycle rides or "runs", selling t-shirts, and other community events. Criminal acts may be committed by some individuals in various charters at various times, but these acts are not related to a "RICO enterprise". HAMC is comparable to a fraternity with the "biker" theme. Criminal activity is not discussed at major gatherings because United States of America, Plaintiff, vs.

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informants attending said gatherings. The assertion that the Arizona rocker signifies that HAMC is a criminal enterprise is ludicrous. That is tantamount to asserting that the state bar card signifies that all attorneys are members of a criminal enterprise since attorneys in various parts of the state may have committed crimes. The rocker merely shows that the member is from Arizona. The assertion that the chapters of HAMC in Arizona are "outlaw" is unsubstantiated. Assuming, arguendo, that some members in some of the clubs commit violent acts or sell drugs, that does not make all of the charters an outlaw motorcycle gang. There is an organization in Arizona called the Arizona Confederation of Motorcycle Clubs. All of the presently five HAMC charters in the state are members. There are about 30 other motorcycle clubs in that organization. HAMC does not control all the clubs. There are no set of bylaws governing the separate independent charters of HAMC in Arizona. The government has tried so hard to fabricate a RICO enterprise and conspiracy simply by taking separate, disconnected, unrelated acts of HAMC members. The defendants are in this Court because of who they are­not because of what they are accused of doing. All of the separate charges could have been charged separately in state court. The government's allegations against defendant KELLY are tenuous, at best. One must read the government's allegations in their statement of "FACTS" very closely to see that the government's case is smoke and mirrors. For example, the government states at page 4 of their response that defendant KELLY is charged with Count 5, a Violent Crime in Aid of Racketeering as well as firearms offenses (Counts 12-15). Then the government fails to show how Kelly allegedly committed the VICAR. By now the Court is aware that McHugh beat up Daniel Gutierrez for making sexual advances toward his (McHugh's) minor goddaughter. The evidence will further show that Gutierrez did not even go to the hospital until two days later, and even then he had only minor injuries. The government has the hospital records and cannot dispute this fact. Gutierrez is a convicted sex offender who made a deal with Mike Kemp (who testified as a character witness for Gutierrez) to testify in a murder trial involving his (Gutierrez') roommate. Mr. Kemp (now Judge Kemp) can be -2Filed 01/26/2006

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called as a witness in case the government wishes to dispute this fact. On February 1, 2003, when Gutierrez was selling a gun and meth to undercover federal agents, he bragged to the agents that Tucson HAMC members KELLY, Doug Dam, and Jo Jo Valenti controlled him. That statement is patently false because he never was accepted as a "patch" (official) member of HAMC. In fact, he was never even accepted as a "prospect" (potential member). He was not authorized to act as a prospect or member. Thus, the government's assertion that "This assault (on Gutierrez) was done in order to terminate Mr. Gutierrez's (sic) relationship with the Hells Angels Motorcycle Club (`HAMC')" is also ludicrous. McHugh beat up Gutierrez for trying to bribe his minor goddaughter with drugs to see her breasts. The government is aware of these facts. Regarding the sale of firearms. Defendant KELLY is charged with being a felon in possession of a firearm­he is not charged with knowing that others possess firearms, or that other felons may possess firearms, or that others are selling firearms, or that he told the UCs to buy firearms elsewhere because he could not deal in firearms. KELLY is accused of being a member or an associate of the "criminal enterprise" alleged in Counts 1 and 2, but the government must first show the existence of an enterprise as an element of the case that is separate and distinct from the pattern of racketeering activity alleged in the case. U.S. v. Turkette, 452 U.S. 576, 583 (1981). They cannot do so. Defendant KELLY is not a party to nor did he agree to the other alleged acts in the Second Superceding Indictment. A trial in which the charges against him are combined with those other unrelated acts would greatly prejudice Defendant KELLY'S rights to a fair trial. The government alleges in its response on September 18, 2002, federal undercover operatives met with Doug Dam at KELLY'S house. The UCs saw a great deal of HAMC paraphernalia. There was discussion of the purchase of firearms. The government claims that Dam and KELLY offered to obtain percussion grenades, smoke grenades, handguns, and assault rifles. It is unclear if the two spoke in unison or if Dam spoke and KELLY listened. Kelly told the UCs that he had to be careful handling guns because he could go to prison if he did. That was his way of informing the UCs he would not be involved in handling firearms. And he never was. But the feds wanted so desperately -3Filed 01/26/2006

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to make a case on KELLY, one of the UCs said that "...KELLY could just broker the deal and be paid a broker's fee". On September 19, 2002, Dam and the UCs met to do the deals. Dam sold one gun and instructed the UCs to go to KELLY'S house to wait for Dam. When they got to KELLY'S house, they were greeted by Tony Cruze, not KELLY, who was in his back office. The government claims that at that time KELLY called Mark McPherson, but KELLY'S phone records show no calls were made by KELLY to McPherson on that day. Dam arrived at KELLY'S house and told the UCs that they had to pick up the gun at McPherson's home. While leaving, a UC gave KELLY $50.00 and the UC called it " a commission on the firearms transactions". What the government forgot to mention in its statement of facts is that the UCs had just mentioned that they gave $500.00 to Mesa Bob's charter. KELLY accepted the $50.00 as a donation to his charter­not as a brokerage fee, which is normally paid by a seller to a broker. The rest of the "FACTS" alleged by the government relate to Doug Dam getting guns from McPherson and selling them to the undercover operatives or to Dam bragging about how "bad" he was or how talented a criminal he was or how "in" he was in the different charters in Tucson and back East. He talked about how he and Gutierrez did an insurance scam whereby he stole Gutierrez' motorcycle who filed a claim for the phony theft. Dam bragged about how he got the club to approve the firearms transaction, but he slipped up as he was running his mouth to SA Dobyns . ROI 65, paragraph 15 says: "SA Dobyns had a discussion with Doug Dam. Dam advised SA Dobyns of, but not limited to, the following:...(t) That he believed the Solo Angeles (undercover operatives) relationship with him was `his hustle' (Dam's personal criminal relationship)..." (Emphasis added). That means that the gun deals with the federal undercover operatives was not KELLY'S business or the club's business­it was Doug Dam's "hustle". SA Dobyns understood what Dam was saying. The evidence the government wants to use a t trial to implicate KELLY in the gun deal that Dam and McPherson did with Dobyns stems from Dam's alleged statements to Dobyns . The government hopes to present Dam's statements as co-conspirator statements under Fed. R. Evid. 801 -4Filed 01/26/2006

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(d) (2). Defendant KELLY will be filing a motion in limnie to preclude such statements without the benefit of a hearing pursuant to United States v. James, 576 F. 2d 1121 (5th Cir. 1978) and 590 F.2d 575 (5th Cir.), cert denied 442 U.S. 917, 99 S. Ct. 2836, 61 L.Ed. 2nd 283 (1979). Before out-of-court co-conspirator statements can be admitted, the Court must decide by a preponderance of the evidence independent from the statements: 1. A conspiracy existed; 2. The statement was made a. during the course of and b. in furtherance of the conspiracy; and 3. The declarant and the defendant must be members of the conspiracy. James, supra. The only remotely credible evidence to tie KELLY to the gun deal is that Dam said KELLY approved the deal, otherwise there is no independent evidence to show KELLY was a co-conspirator. Dam's own statement that the gun deal was his "hustle" negates KELLY'S involvement. Conclusions For the aforementioned factual and legal reasons contained herein and in KELLY'S Motion to Sever Counts and Defendants, the Court should grant Defendant KELLY'S motion.

RESPECTFULLY SUBMITTED this 26th day of January, 2006. s/ Joseph E. Abodeely

21 22 23 24 25 26 -5Filed 01/26/2006 JOSEPH E. ABODEELY Attorney for Craig T. Kelly

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CERTIFICATE OF SERVICE I hereby certify that on January 26, 2006, I electronically transmitted the attached document to the

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Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to all counsel. s/ Joseph E. Abodeely

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -6Filed 01/26/2006 JOSEPH E. ABODEELY Attorney for Craig T. Kelly

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