Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY T. DUAX Assistant U.S. Attorney Arizona State Bar No. 012694 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Calvin B. Schaefer, Defendant. No. CR-03-1167-PHX-DGC GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS COUNTS ONE AND TWO OF THE SUPERSEDING INDICTMENT

The United States of America, by and through counsel undersigned, hereby responds to

15 defendant CALVIN B. SCHAEFER's Motion to Dismiss Counts One and Two of the 16 Superseding Indictment. The position of the United States is that the racketeering acts set forth 17 in Counts One and Two of the Second Superseding Indictment do set forth a pattern of 18 racketeering activity in that all the acts have a definitive nexus with the criminal enterprise. The 19 criminal enterprise provides the external organizing principle that renders the alleged acts of 20 racketeering "ordered," thereby satisfying the standard set forth in H.J. Inc. v. Northwestern Bell 21 Telephone Co. 492 U.S. 229, 238 (1989). 22 In addition, the racketeering acts set forth in Counts One and Two demonstrate a threat of

23 continued criminal activity, as the multiple incidents of murder or attempted murder (be it 24 against Mongols, or others) illegal drug sales, and threats against prospective government 25 witnesses clearly show. 26 // 27 // 28 //

Case 2:03-cr-01167-DGC

Document 1071

Filed 01/17/2006

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The position of the United States with respect to the defendant's Memorandum is set forth

2 in greater detail in the attached Memorandum of Points and Authorities. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 17th day of January, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona

s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney

Case 2:03-cr-01167-DGC

Document 1071

Filed 01/17/2006

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MEMORANDUM OF POINTS AND AUTHORITIES I. Counts One and Two of the Second Superseding Indictment clearly set forth the purposes of the enterprise and the racketeering acts in furtherance of those purposes. The racketeering acts constitute a pattern because of the relationship they have to the Hells Angels Motorcycle Club, which provides their external organizing principles, and forms a common bond between the acts. The purposes of the enterprise alleged in Counts One and Two, the Hells Angels Motorcycle

6 Club of Arizona (HAMC) are set forth in paragraph B of Count One, which is incorporated by 7 reference into Count Two. The purposes of the enterprise included the following: (1) Enriching 8 the associates and members of the enterprise, and advancing the interests of the associates and 9 members of the enterprise through, among other things, murder, attempted murder, conspiracy 10 to murder, witness intimidation and distribution of controlled substances; (2) Preserving and 11 protecting the power and territory of the enterprise by using intimidation, murder, violence, 12 threats of violence, and attempted murder and conspiracy to commit murder; (3) Promoting and 13 enhancing the enterprise and the activities of its members and associates; and (4) Keeping 14 victims and witnesses in fear of the enterprise and in fear of its members and associates through 15 violence and threats of violence. 16 The racketeering acts are set forth in Count One, paragraph E, and more generally in the

17 body of Count Two. Each and every racketeering act alleged in Counts One and Two has a 18 distinct nexus to the HAMC. The murder of Cynthia Garcia occurred because she made 19 derogatory comments regarding the HAMC while in a HAMC clubhouse, and the kidnaping and 20 beating that preceded her murder also took place in the same clubhouse. The attempted murder 21 of Mongols, and the death of a Mongol at the Harrah's casino in Laughlin took place because 22 of the ongoing feud between the Mongols and the HAMC. The conspiracy to murder a Mongol 23 likewise took place due to the same ongoing feud. The conspiracy to murder Banditos took 24 place because of a similar feud between the HAMC and the Banditos. The witness tampering 25 predicate involved the use of HAMC connections and associates, and their reputation for 26 violence to coerce the silence of a particular witness. Finally, the numerous acts of

27 methamphetamine distribution were regulated by, and done with the assent of the HAMC, whose 28 leadership dictated to its members the locations where sales could take place, and to whom
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1 members of the HAMC could sell methamphetamine. The racketeering acts alleged are related 2 to the activities of the enterprise, and could be committed by virtue of the defendants' positions 3 in, or association with, the enterprise. This renders such acts related. See United States v. 4 Yarbrough, 852 F.2d 1522, 1544 (9th Cir. 1988). 5 Was it CALVIN SCHAEFER alone, for his own personal reasons, that rode his motorcycle

6 from the Flamingo to Harrah's at 2:00 a.m. on April 27, 2002, to confront members of the 7 Mongol's motorcycle club? No, it was numerous members of the HAMC, and they rode from 8 the Flamingo to Harrah's to support other members of the HAMC who had called for support 9 in a dispute with the Mongols. Two Hells Angels and one Mongol were killed that morning, 10 making the turf battle between the clubs more than a mere "brawl" as characterized by the 11 defense. The nexus between the conduct and the HAMC is clear, and it was the purposes of the 12 HAMC in defending its members and its reputation that inspired the conduct of defendants 13 SCHAEFER, Smith and Walters that morning. Similar feuds, constituting HAMC (not 14 individual) business with the Banditos were the genesis of that racketeering predicate, and 15 provide the necessary pattern as defined in H.J. Inc. Conflict with the Banditos was handled 16 similarly to conflict with the Mongols, involving the same purposes, methods of commission, 17 and HAMC member conduct. 18 The foregoing is consistent with the standards for relatedness between RICO predicate acts

19 set forth in H.J. Inc. That same standard applies with equal vigor to the acts of witness 20 tampering committed by members of the HAMC. Those acts directly involved the interests of 21 the HAMC in preventing information regarding illegal activities of club members from being 22 revealed. Although the acts may have involved different people, it was the enterprise that gave 23 the threats and intimidating force, and it was members or associates of the HAMC making the 24 threats or ordering them to be made. Again, the purposes of the HAMC were at the heart of the 25 acts perpetrated by its members. Finally, the numerous acts of methamphetamine sales were 26 related in terms of their regulation by the HAMC. The HAMC maintained authority in terms of 27 where methamphetamine could be sold, to whom it could be sold, and from whom it could be 28 purchased. Once again, the HAMC provided the external organizing principles that guided the
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1 defendants' racketeering acts. 2 Pursuant to the opinion in H.J. Inc., the racketeering acts alleged in Counts One and Two

3 do show a pattern of racketeering activity, and the Second Superseding Indictment should not 4 be dismissed. 5 6 II. The racketeering conduct alleged was not isolated or sporadic The violent acts against the Mongols and Banditos were not isolated and sporadic, but part

7 of ongoing feuds between the HAMC and those entities. This can be seen in the over one year 8 gap between predicate acts Four and Five, both of which involve attempts or conspiracies to kill 9 Mongols. Again, the purpose of the enterprise is to eliminate rivals, and the HAMC members 10 named in predicates Four and Five did not act in their personal interests, but on behalf of and in 11 furtherance of the enterprise. The same can be said for the witness tampering, which continued 12 up to and including August 31, 2004. The drug sales, the government alleged twelve of them, 13 were hardly sporadic, but rather a consistent and regulated club activity. The HAMC regulation 14 provided security to both sellers and purchasers, knowing that the full power of the HAMC could 15 be used to collect debts, insure witness control if a member was arrested, and discourage rip-offs. 16 The evidence supporting the twelve predicates suggests continuity as opposed to isolation. 17 18 19 III. Count Two properly alleges a conspiracy to violate 18 U.S.C. 1962(c) as alleged in Count One Count Two of the Second Superseding Indictment specifically incorporates the allegations

20 concerning the enterprise (paragraph A), its purpose (paragraph B), and its means and methods 21 (paragraph C), contained in Count One. Those references, combined with the remaining 22 substance of Count Two, allege the existence of a RICO enterprise, the defendant's association 23 with that enterprise, and that the defendant agreed that at least two acts of racketeering would 24 be committed by an enterprise co-conspirator in the conduct of the affairs of the enterprise. Such 25 allegations are sufficient to state a claim for a violation of 18 U.S.C. 1962(d). United States v. 26 Glecier, 923 F.2d 496, 498-500 (7th Cir. 1991), United States v. Phillips, 874 F.2d 123, 127-128 27 (3rd Cir. 1981) and United States v. Sutherland, 656 F.2d 1181, 1197 (5th Cir. 1981). 28 Count Two gives proper notice to the defendant of acts constituting the pattern of
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1 racketeering activity, if thoroughly reviewed. For example, contrary to defendant's assertion, 2 defendants Eischeid and Augustiniak are named as defendants in Count Two. Hopefully, this 3 will resolve the "complete mystery" that befuddled the defendant at the time of his Motion 4 regarding the acts of murder alleged in Count Two, and cited as predicate acts in Count One. 5 The other acts referenced in Count Two are all reflected in the predicate acts listed in Count One. 6 7 IV. Conclusion Contrary to the assertion of the defendant, Counts One and Two properly allege the RICO

8 violation, and the conspiracy to commit a RICO violation set forth therein. The legal standards 9 for such allegations, including the allegations of related predicate acts, have been met. 10 Wherefore, based upon the foregoing, the United States respectfully requests that this Court deny 11 the defendant's motion. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 17th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney

1 I hereby certify that on January 17, 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: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], 8 [email protected] 9 Alan Richard Hock, [email protected] 10 Thomas M Hoidal, [email protected], [email protected] 11 Barbara Lynn Hull, [email protected] 12 13 14 15 16 17 18 19 20 21 22 s/ Timothy Duax TIMOTHY T. DUAX 23 24 25 26 27 28
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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]