Free Reply to Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH E. VERCAUTEREN Assistant United States Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 013439 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR-03-1167-PHX-DGC Plaintiff, v. Kevin Augustiniak, et al., Defendants. UNITED STATES' REPLY TO DEFENDANT'S RESPONSE TO NOTICE OF INTENT AND MOTION TO INTRODUCE INEXTRICABLY INTERTWINED EVIDENCE OR, ALTERNATIVELY, EVIDENCE PURSUANT TO RULE 404(b)

The United States of America replies to Defendant's Response to Notice of Intent and Motion to Introduce Inextricably Intertwined Evidence Or, Alternatively, Evidence Pursuant to Rule 404(b). For the reasons set forth in the Motion and supplemented in the attached Memorandum of Points and Authorities, the United States still seeks to admit evidence concerning three incidents of violence committed by defendant KEVIN AUGUSTINIAK in 1999 and 2001. Respectfully submitted this 3rd day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney
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MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS A. Mesa Apartment Assault

Defendant AUGUSTINIAK argues that the United States manipulated the facts of the three incidents he was involved in committing. The United States did not alter any facts in this case. The United States has attached the relevant pages from the police report regarding the Mesa apartment assault. (See Attachment A). The United States encourages this Court to come to its own conclusions regarding the facts contained in those reports. The United States would also like to point out for the Court the last page of Attachment A. The victim in the Mesa apartment assault was scheduled to appear in court as a witness against defendant AUGUSTINIAK on March 31, 2000. The night before the court date, two subjects showed up at the victim's work and began to question him about the court date. The victim called the police because he felt very scared and intimidated. This additional information shows how the Hells Angels as an "enterprise" attempt to intimidate witnesses. B. Tempe Bar Assault

The defense also claims that the United States has twisted the facts of the Tempe bar assault. The United States has attached the relevant pages from the police report regarding the Tempe bar assault. (See Attachment B). The United States again encourages this Court to come to its own conclusions regarding the facts contained in those reports. Defendant contends that "none of the witnesses stated that any individuals with Augustiniak were members of the HAMC as stated by the government." The United States would like to point out for the Court the last three pages of Attachment B. In fact, witness Gene Garcia saw a full patched member of HAMC right there with HAMC prospect AUGUSTINIAK right after he punched the female victim. Additionally, Mr. Garcia stated that a high ranking member of HAMC came back to the bar on a later day and apologized for the HAMC prospect who had been out of line. A second witness, Carlos Avina, saw the defendant wearing an HAMC jacket, and he also stated that there were other Hells Angels at the concert with the defendant.

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Defendant tries to downplay the statements of Garcia by claiming that his information was "what he learned from the police and others." The defendant provides no evidence to support that conclusion. Furthermore, some of the events recounted by Garcia in his second interview occurred after the first interview. The defense then claims that HAMC did not participate or sanction the actions of defendant AUGUSTINIAK. This claim is contradicted by evidence showing that HAMC promoted defendant AUGUSTINIAK from prospect to member after the assault. The HAMC rewarded a violent individual who displayed HAMC colors during an unprovoked attack by making him one of their own, a full patch member of the Hells Angels. C. Tempe Apartment Shooting

The defense also claims that the United States twisted the facts of the Tempe apartment shooting of Abel Oliveraz. The United States has attached the relevant pages from the police report regarding the Tempe apartment shooting. (See Attachment C). The United States again encourages this Court to come to its own conclusions regarding the facts contained in those reports. Defendant tries to disassociate his membership in HAMC from this shooting. Abel Oliveraz saw defendant AUGUSTINIAK's tattoos and saw him wearing his Hells Angels jackets prior to the shooting. (See Attachment C, page 44). Defendant AUGUSTINIAK's girlfriend, Amber Smith, also stated that she had conversations with Abel Oliveraz in the past about defendant AUGUSTINIAK's involvement with the Hells Angels. (See Attachment C, page 67). On the day of the shooting, defendant AUGUSTINIAK stated to Abel Oliveraz, "You don't know who you're fucking with, I could kill you." (See Attachment C, pages 75 and 122). In fact, Amber Smith stated Abel Oliveraz said, "I'm not scared of you," in reference to defendant AUGUSTINIAK's membership with the Hells Angels. (See Attachment C, page 67). Defendant stated in his response that the "only reason" defendant AUGUSTINIAK called his friends was to take care of Amber. However, Amber Smith didn't even know who defendant AUGUSTINIAK called on the phone, and when she asked who it was, defendant AUGUSTINIAK told her to "shut up." (See Attachment C, pages 59 and 69). If the reason defendant AUGUSTINIAK called HAMC members was to care for Amber, it would have made
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sense to let Amber know who was coming to help her. Additionally, when HAMC Mesa Chapter members Jack Perkins and Gary Dunham (attired in a white HAMC tee shirt) arrived at the scene, Perkins and Dunham told Tempe police that they were present at the scene to offer "moral support," and did not mention they were there to care for Amber. (See Attachment C, page 50). At the sentencing of defendant AUGUSTINIAK for shooting this victim, Abel Oliveraz, AUGUSTINIAK admitted being a member of the HAMC Mesa chapter for two years. In addition, Mesa HAMC member Gary Dunham told the court he was AUGUSTINIAK's sponsor in the HAMC, and testified on behalf of AUGUSTINIAK. Therefore, the HAMC displayed its support for defendant AUGUSTINIAK's violent acts, and continued to allow him to remain a full patch member of the Hells Angels. II. LEGAL ANALYSIS The government seeks to admit evidence of Defendant AUGUSTINIAK's 1999 Mesa apartment assault, his 2001 Tempe bar assault and his 2001 Tempe apartment shooting on the grounds that such evidence is inextricably intertwined with the charged offenses, namely, that the RICO enterprise, the HAMC, preserved and protected the power and territory of the enterprise by using violence and threats of violence, that members of the enterprise and their associates promoted a climate of fear through violence and threats of violence, and that members of the enterprise and their associates used and threatened to use physical violence against various individuals. Defendant AUGUSTINIAK argues in the response as if he is the only defendant charged in this case. However, defendant AUGUSTINIAK is a member of HAMC in a RICO prosecution. The consequences of that fact are that incidents of HAMC involvement in prior acts of defendant AUGUSTINIAK are relevant in this case. The United States has shown HAMC involvement in the Mesa apartment assault, the Tempe bar assault and the Oliveraz shooting. HAMC involvement in those three incidents ranged from "moral support," to witness intimidation to testimony on defendant AUGUSTINIAK's behalf. As the conduct of the HAMC enterprise is at issue in this case, and the aforementioned incidents are evidence of such conduct,
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they are both relevant and intrinsic to this case. "It is well-settled that in prosecutions for racketeering offenses, the government may introduce evidence of uncharged offenses to establish the existence of the criminal enterprise." United States v. Baez, 349 F.3d 90, 93 (2nd Cir. 2003) (Admitting evidence of sixteen uncharged robberies in a racketeering prosecution where the evidence was relevant to the existence of the racketeering enterprise and the conspiracy). At the time of these three incidents, defendant AUGUSTINIAK was a member of, or associated with the HAMC. Furthermore, in each of the incidents there is relevant conduct by defendant AUGUSTINIAK as an individual member of the HAMC and conduct by other members of the HAMC. As a result, defendant AUGUSTINIAK's conduct in these three incidents was in furtherance of or on behalf of the HAMC as evidenced by the involvement of other HAMC members in all three incidents. Defendant AUGUSTINIAK argues that the evidence relating to these three incidents are not similar enough to establish defendant AUGUSTINIAK's knowledge and intent for the instant charges. However, defendant cites case law relevant to the issue of identity. The defendant is using the wrong analytical framework when analyzing this issue. The United States is not using the three incidents to prove defendant AUGUSTINIAK's identity. The United States is using the three incidents to show that defendant AUGUSTINIAK's knowledge and intent in the present case was to act on behalf of or in furtherance of the enterprise. Consequently, the cases and arguments set forth by the defendant are not on point. Alternatively, the government seeks to admit such evidence pursuant to Rule 404(b) of the Federal Rules of Evidence. To the extent that the Court deems that evidence of Defendant's 1999 apartment assault, 2001 bar assault and 2001 apartment shooting are not evidence "inextricably intertwined" with the crimes charged, the government submits that the evidence is admissible pursuant to Fed. R. Evid. 404(b) for the purposes explained in the original Notice and Motion filed in Docket #975 on December 14, 2005. In this case, Defendant's 1999 apartment assault, 2001 bar assault and 2001 apartment shooting demonstrate that, as with numerous charged offenses in the Indictment, the HAMC routinely employs excessive violence to intimidate any individual who challenges the HAMC
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for any reason. HAMC members, such as Defendant, are rewarded with enhanced status within the HAMC for their violent conduct, and the cumulative effect of such violence also benefits the HAMC because it reinforces the enterprise's reputation in the community for violent intimidation. The HAMC is able to maintain their ability to intimidate rival motorcycle gang members, as well as other victims and witnesses of their criminal activities. Consequently, Defendant's uncharged criminal conduct is admissible to prove the enterprise's motive, intent, knowledge, and plan to use systematic violence to intimidate the community. In this case, Defendant's uncharged violent criminal conduct is highly probative of the HAMC's pattern of violent intimidation. Evidence of Defendant's prior criminal conduct is not offered to prove Defendant's bad character or to show conformity therewith, but rather, for the permissible purposes enumerated in Rule 404(b). Moreover, the probative value of Defendant's uncharged criminal conduct is not substantially outweighed by potential prejudice because the uncharged conduct is less inflammatory than the murder charged in the Indictment. See, e.g., Baez, 349 F.3d at 94. For the reasons set forth above, the government respectfully requests that the Court admit, pursuant to the inextricably intertwined evidence doctrine, evidence of Defendant's 1999 apartment assault, 2001 bar assault and 2001 apartment shooting. Alternatively, the government requests that the Court admit such evidence pursuant to Rule 404(b). Respectfully submitted this 3rd day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney

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I hereby certify that on February 3, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
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Joseph E. Abodeely, [email protected], [email protected] David Zeltner Chesnoff, [email protected] Carmen Lynne Fischer, [email protected], [email protected] Patricia Ann Gitre, [email protected], [email protected] Alan Richard Hock, [email protected] Thomas M Hoidal, [email protected], [email protected] Barbara Lynn Hull, [email protected] David M Ochoa, [email protected] Jose S Padilla, [email protected], [email protected] Mark A Paige, [email protected] James Sun Park, [email protected], [email protected],[email protected] C Kenneth Ray, II, [email protected] Brian Fredrick Russo, [email protected], [email protected] Michael Shay Ryan, [email protected], [email protected] Philip A Seplow, [email protected], [email protected] Robert Storrs, [email protected], [email protected]

s/ Keith Vercauteren KEITH E. VERCAUTEREN 23 Assistant United States Attorney
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