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 Attorney for Craig T. Kelly UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) No. CR-03-1167-PHX-DGC Plaintiff, ) ) vs. )DEFENDANTS KELLY'S REPLY TO )GOVERNMENT'S RESPONSE TO MOTION TO )DISMISS COUNTS 1, 2, 5, 12-15 OF SECOND )SUPERCEDING INDICTMENT 12. Craig T. Kelly, et al., ) ) Defendants. ) (EVIDENTIARY HEARING REQUESTED) ______________________________) Defendant, CRAIG T. KELLY, KEVIN AUGUSTINIAK, ROBERT S. MCKAY, DONALD United States of America,

15 SMITH, and ROBERT J. JOHNSTON by and through attorney for Defendant KELLY, undersigned, 16 hereby reply to the Government's Response to Defendant Kelly's Motion to Dismiss Counts 1,2, 5, 17 and 12 through 15 of the Second Superceding Indictment and requests this Honorable Court to grant 18 defendant's motion for the reasons stated in the following memorandum of points and authorities. 19 MEMORANDUM OF POINTS AND AUTHORITIES 20 The government has presented a red herring to the court by arguing that Defendant Kelly's 21 motion is a challenge to the sufficiency of the evidence presented to the grand jury. The government 22 is incorrect. Defendant's motion presented undisputed facts based on reports of investigation (ROI) 23 compiled by the ATF. The facts are the government's facts stated in their own reports. Certainly, 24 the prosecution is not denying the validity of the information manufactured by their own investigating 25 agency. If it does, the court must hold an evidentiary hearing. The facts are attached herein and are 26 in the order referred to in Defendant's motion. Defendant Kelly's position is that the government

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has failed to state a claim under the RICO statute. U.S. v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988). "...In order to secure a conviction under RICO, the Government must prove both the existence of an `enterprise' and the connected `pattern of racketeering'. The

enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct. The pattern of racketeering activity is, on the other hand, a series of criminal acts as defined by the statute...The `enterprise' is not the `pattern of racketeering activity'; it is an entity separate and apart from the pattern of activity in which it engages. The existence of an enterprise at all times remains a separate element which must be proved by the Government." U.S. v. Turkett, 452 US 576, 583 (1981). The undisputed facts which are the basis of the alleged racketeering acts and substantive counts (see ROIs attached) simply do not demonstrate a group of persons associated together for a common purpose of engaging in a course of conduct. These facts show there is no "HAMC of Arizona" which constitutes an "enterprise"; there is no hierarchy in a state-wide criminal enterprise; and the individuals charged were from different chapters without a common purpose. They acted ad hoc or in a spontaneous manner­not as a criminal enterprise. There is no showing that any of the alleged acts were to enhance any of the defendant's positions in any enterprise, or to enrich any enterprise, or were conducted as part of an ongoing pattern of racketeering related to an enterprise. None of the facts in the ROIs show that the defendants were conducting or participating in the affairs of the enterprise. "A defendant conducts or participates in the affairs of the enterprise when that defendant participates, in some degree, in the operation, direction or management of the enterprise through a pattern of racketeering activity." United States v. Shryock, 342 F.3d 948, 985, 986 (9th Cir. 2003). Participation means more than merely aiding and abetting. Id. None of the actions alleged by the government indicate a pattern of racketeering or a common scheme, plan, or motive as envisioned by the RICO statute. -2Filed 09/20/2005

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``A person engages in a pattern of racketeering activity if he commits at least two related acts of racketeering within ten years. The two racketeering acts may not be isolated or disconnected, but must be related to each other by a common scheme, plan, or motive. The two racketeering acts must also amount to, or pose a threat of , continued criminal activity.'' (Emphasis added). Shyrock, 342 F.3d at 986. The allegations show a disconnection, a sporadic series of actions such as the drug deals with different HAMC members. There is no concert of action among all the members, but there is action that occurs which was prompted by a government agent (e.g., drug deals, gun deals, and fake efforts to kill Mongols or Bandidos). The government's allegations ipse dixit of the "purposes" (implying the racketeering acts) fail to prove the element of enterprise separate and distinct from the pattern of racketeering activity. The "means and methods" reiterate ipse dixit the kinds of illegal conduct stated in the "purposes" of the indictment. The alleged acts are unrelated to each other and to any concept of the "enterprise". The ROIs attached herein show how the government has failed to state a claim under the RICO statute. The facts from the government are just that­the facts from the government, and they are undisputed. Rule 12 (b) Fed. Rules Crim. Proc. allows pretrial determination of any motion which can be resolved without trial of the general issue. U.S. v. Brown, 925 F.2d 1301,1305 (10th Cir. 1991). Rule 12 (e) allows the district court to consider factual issues in determining a pretrial motion. Id.; see United States v. Coia, 719 F. 2d 1120, 1123 (11th Cir.1983), cert. denied, 466 U.S. 973, 104 S.Ct. 2349, 80 L. Ed. 2d 822 (1984). "However, in circumstances like those in Risk or in the instant case, it is permissible and may be desirable where the facts are essentially undisputed, for the district court to examine the factual predicate for the indictment to determine whether the elements of the criminal charge can be shown sufficiently for a submissible case." Brown, supra, at 1304. See also, U.S. v. Wood, 6 F. 3d 692, 695 (10th Cir. 1993); U.S. v. Brady, 820 F. Supp. 1346, 1359 (Utah 1993). -3Filed 09/20/2005

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Conclusions The government's undisputed facts (as provided in discovery and attached herein) do not support the allegation of RICO "enterprise", nor do the government's undisputed facts support the allegation of RICO conspiracy. Counts 1, 2, and 5 should be dismissed since the government cannot show the existence of an enterprise, Turkette, supra, and cannot prove the elements of RICO. If there is no "enterprise", there can be no RICO or VCAR. Counts 12 through 15 should be dismissed as being unsupported in both fact and law. For the aforementioned factual and legal reasons, Defendants respectfully requests this Honorable Court to dismiss Counts 1, 2, 5, and 12 through 15 in this matter. RESPECTFULLY SUBMITTED this 20th day of September, 2005.

/S/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly CERTIFICATE OF SERVICE I hereby certify that on September 20, 2005, I electronically transmitted the attached document with attached ROIs to the 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 JOSEPH E. ABODEELY Attorney for Craig T. Kelly

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