Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona KEITH 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 No. CR-03-1167-PHX-DGC Plaintiff, v. Robert J. Johnston, et al., Defendants. The United States of America, by and through undersigned counsel, hereby requests that the UNITED STATES' REQUEST TO EMPANEL AN ANONYMOUS JURY

14 Court issue an order directing the Clerk of the United States District Court for the District of 15 Arizona to place under seal the names, addresses, and telephone numbers of all individuals 16 summoned as prospective jurors in this case. It is further requested that the names, addresses 17 and telephone numbers not be released to attorneys for either the government or the defendants 18 at any time before, during or after the trial and that the jury selection procedure be conducted 19 in such a manner so as to insure complete anonymity to all members of the jury. The United 20 States further requests that this Court issue an order governing the conduct of spectators at the 21 trial herein so as to minimize any possible intimidation of witnesses and/or jurors. The United 22 States requests the anonymous jury for the reasons set forth in the attached Memorandum of 23 Points and Authorities. 24 25 26 27 28 s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney
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Respectfully submitted this 17th day of February, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

1 2 I. BACKGROUND 3

MEMORANDUM OF POINTS AND AUTHORITIES

On January 19, 2005, a grand jury returned a Second Superceding Indictment ("the

4 Indictment") in the present case. The Indictment alleges violations of RICO and RICO 5 conspiracy, including predicate acts of kidnaping, murder, witness tampering, attempted murder, 6 conspiracy to commit murder, threatening a Federal officer, gun offenses, narcotics distribution, 7 and violent crimes in aid of racketeering, including assaults with a dangerous weapon. The 8 Indictment further alleges that the enterprise, the Hells Angels Motorcycle Club ("HAMC"), 9 preserved and protected the power and territory of the enterprise by using violence and threats 10 of violence, that "[m]embers of the enterprise and their associates promoted a climate of fear 11 through violence and threats of violence," and that "[m]embers of the enterprise and their 12 associates used and threatened to use physical violence against various individuals. The 13 defendants are members or associates of different chapters of the HAMC, an organization 14 involved in numerous types of criminal activity on a nationwide basis with a propensity for 15 violence. 16 The United States requests that this Court not consider any of the information presented

17 in any Ex Parte filings by the United States. Therefore, the United States does not believe that 18 there is any need to disclose the contents of any Ex Parte memoranda filed in this case. Instead, 19 the United States believes there is sufficient information that has been presented to this Court 20 in publically filed documents to justify an order for an anonymous jury in this case. 21 Some of the examples that the United States has presented to the Court in previous

22 pleadings includes the following facts: 23 The United States presented in its Response to the Motion to Sever regarding defendant

24 Robert RIENSTRA that defendant RIENSTRA told undercover operatives that he was involved 25 in "extortion, loan sharking and prostitution, you know, rackeetering," that he had participated 26 in numerous events involving violence for the Hells Angels Motorcycle Club, that he was the 27 sergeant-of-arms for the HAMC, that he had shot or killed individuals on behalf of the HAMC, 28 that he had "taken care of business" (forming his hand to mimic firing a gun) for the HAMC that 2
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1 will never be spoken about, that he had taken care of business for "brothers in prison" who will 2 never know who did the favor for them, and that he could be a "rat hunter." 3 Defendant Robert McKay has pled guilty and admitted under oath that he threatened to

4 assault a federal agent for the agent's involvement in the investigation into the HAMC. 5 Defendant ROBERT S. McKAY admitted he is a member of the Tucson, Arizona chapter of the 6 Hells Angels Motorcycle Club (HAMC). Defendant McKAY knew on August 31, 2004, that 7 Agent Dobyns worked as an undercover law enforcement officer investigating the HAMC. On 8 August 31, 2004, ROBERT S. McKAY told Agent Dobyns, "Big football star, huh?" Agent 9 Dobyns replied, "Oh, you've been checking on me." ROBERT S. McKAY asked Agent Dobyns, 10 "What names do you go by nowadays?" ROBERT S. McKAY then saw Agent Dobyns' hand 11 shaking, and stated, "You shouldn't smoke, it makes you look nervous." Agent Dobyns replied, 12 "I wasn't nervous when I was under on you guys, why should I be nervous now." ROBERT S. 13 McKAY replied, knowing Agent Dobyns was referring to the Hells Angels and with the intent 14 to intimidate Agent Dobyns, "That's just the way you are, a nervous little punk bitch." 15 Defendant AUGUSTINIAK was involved in killing a woman for making comments about

16 HAMC. Additionally, the United States would refer the Court to the three other acts of violence 17 by defendant AUGUSTINIAK that is the subject of the 404(b) motion, including an act of victim 18 intimidating by HAMC. The victim in the Mesa apartment assault was scheduled to appear in 19 court as a witness against defendant AUGUSTINIAK on March 31, 2000. The night before the 20 court date, two subjects showed up at the victim's work and began to question him about the 21 court date. The victim called the police because he felt very scared and intimidated. 22 Observations of trials involving HAMC members across the United States have shown

23 it to be standard practice for the HAMC to direct members to attend trial en masse in order to 24 intimidate jurors. Affidavits from former HAMC members in cases throughout the United States 25 have indicated that individual members are directed to wear HAMC insignia, sit in the 26 courtroom during trial, and congregate in public areas during recesses in order to be observed 27 by government witnesses and jurors. See affidavits in United States v. Pasciuti, 803 F.Supp. 499 28 (D.N.H. 1992). 3
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1 II. LEGAL ANALYSIS 2 The use of an anonymous jury is proper when attempting to protect the members of a jury

3 and avoid tampering of the judicial processes. United States v. Shryock 342 F.3d 948 (9th Cir. 4 2003); United States v. Fernandez 388 F.3d 1199 (9th Cir. 2004). Both Shryock and Fernandez 5 involved trials of Mexican Mafia (EME) figures on RICO related charges. In Shryock the 6 district court sua sponte empaneled an anonymous jury, ordering the names, addresses, and 7 places of employment of prospective jurors and their spouses not be disclosed to counsel, either 8 before or after the selection of the jury. Shryock, 342 F.3d at 970. The fact that the district court 9 empaneled the jury sua sponte was irrelevant, since the purpose was to protect the jury and the 10 integrity of the process. The Ninth Circuit found that "so long as the district court takes 11 reasonable precautions to safeguard the defendants' rights, no principle would distinguish an 12 order to empanel an anonymous jury made sua sponte from one based on a party's motion." 13 Shryock, 342 F.3d at 971. 14 The Ninth Circuit in Shryock noted that it was a case of first impression in the circuit, but

15 that "every circuit that has addressed this issue has held that a lower court's decision to empanel 16 an anonymous jury is entitled to deference and is subject to abuse of discretion review." Shryock, 17 342 F.3d at 971. In reviewing a district court's ruling for abuse of its discretion, the court found 18 that the trial court "may consider evidence available at the time the district court empaneled the 19 anonymous jury, and all relevant evidence introduced at trial." Shryock, 342 F.3d at 971. In 20 giving its approval for anonymous juries, the court wrote, "[w]e now adopt the rule as articulated 21 by the First Circuit: the trial court may empanel an anonymous jury where: (1) there is a strong 22 reason for concluding that it is necessary to enable the jury to perform its factfinding function, 23 or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to 24 minimize any risk of infringement upon the fundamental rights of the accused." Shryock, 342 25 F.3d at 971 (internal cites omitted). 26 27 A. Protection of the Jurors and the Judicial Process

The safety and protection of the jury has long been recognized by the courts and may be

28 founded on a combination of factors, including: "(1) the defendants' involvement with organized 4
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1 crime; (2) the defendants' participation in a group with the capacity to harm jurors; (3) the 2 defendants' past attempts to interfere with the judicial process or witnesses; (4) the potential that 3 the defendants will suffer a lengthy incarceration if convicted; and (5) extensive publicity that 4 could enhance the possibility that jurors' names would become public and expose them to 5 intimidation and harassment." Shryock, 342 F.3d at 971. Although the court has given this five 6 part test, it also noted that "these factors are neither exclusive nor dispositive, and the district 7 court should make its decision based on the totality of the circumstances." Shryock, 342 F.3d 8 at 971, citing United States v. Brown, 303 F.3d 582, 602 (5th Cir. 2002). 9 The Hells Angels are viewed as an "outlaw motorcycle gang" and have been locally,

10 nationally and internationally the subject of organized crime investigations. In analyzing the 11 first part of the test, the court stated that use of the term "organized crime" does not itself create 12 the need for an anonymous jury. "[T]he words `organized crime,' `mob,' or `Mafia,' unless 13 there is something more, does not warrant an anonymous jury," but the `something more,' which 14 by itself is sufficient to justify an anonymous jury, "can be a demonstrable history or likelihood 15 of obstruction of justice on the part of the defendant or others acting on his behalf or a showing 16 that trial evidence will depict a pattern of violence by the defendants and his associates such as 17 would cause a juror to reasonably fear for his own safety." Shryock, 342 F.3d at 972. 18 The history of the Hells Angels includes numerous acts of violence committed by its

19 members, along with the organization's use of extortion and intimidation. The influence of this 20 criminal organization goes across borders and is often the target of law enforcement agencies 21 internationally who view it as an organized crime syndicate. A number of the defendants (and 22 the Hells Angels itself) have track records of attempting and committing murders for the 23 betterment of the membership and organization. 24 Analyzing the second part of the test, a number of the defendants in this case have been

25 indicted for violent crimes, including murder and conspiracy to commit murder for the benefit 26 of the criminal enterprise. In Shryock the court successfully applied the second prong of its test, 27 stating that the defendant had previously been involved on behalf of EME with murders, 28 attempted murders and conspiracies to commit murders. Shryock, 342 F.3d at 972. It was noted

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1 that there were hundreds of EME members still out and about and "[C]learly, the Mexican Mafia 2 was a group with the capacity to harm jurors." Id. While every defendant in the Hells Angels 3 case may not be involved in murders, statements by defendants have implicated some of them 4 in previous murders done at the behest of the Hells Angels, along with conspiracies to commit 5 future murders for the benefit of the organization. The vast numbers and breadth of the 6 organization's membership would seemingly indicate the wherewithal to harm jurors and 7 witnesses. 8 Analyzing the third part of the test, the history of the Hells Angels as an organization,

9 along with a number of the defendants in this case, indicate their willingness to use violence or 10 threats of violence to dissuade people from testifying or testifying truthfully. In Shryock the 11 court used the history of the defendant and EME at prior attempts to obstruct justice by 12 encouraging witnesses to testify falsely, or by the organizations attempts to threaten, assault or 13 kill potential witnesses. 342 F.3d at 972. Statements made by some of the Hells Angels 14 defendants, not only to their past attacks on "snitches," but on how they would handle future 15 informers, is indicative of how they may proceed in this case. 16 The HAMC displayed its potential willingness to use violence as evidenced in the threats

17 made by defendant McKay against Agent Dobyns. While working in an undercopver capacity, 18 Agent Dobyns was able to gain the trust and confidences of many of the HAMC members that 19 have been indicted. Agent Dobyns will be called to testify at trial as to the numerous offenses 20 committed by the defendants. His work during the undercover operation and potential testimony 21 were undoubtedly the catalyst for the threats against his life by HAMC member McKay. 22 Analyzing the fourth part of the test, some of the defendants are facing extensive terms

23 of imprisonment which may encourage them to make illegal attempts at influencing a trials 24 outcome. In Shryock the defendants faced potential sentencing from 384 months to life plus 300 25 months. Shryock, 342 F.3d at 972. The court noted that the mandatory life sentences defendants 26 faced if convicted "surely provided a strong inducement to resort to extreme measures in any 27 effort to influence the outcome of the trial."Shryock, 342 F.3d at 972, citing United States v. 28 DeLuca 137 F.3d 24, 32(1st Cir. 1998). Some of the defendants have been indicted for murder

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1 and conspiracy to commit murder and, if convicted, will be facing prison terms that match or 2 exceed those cited in Shryock. It could be reasonably expected that the HAMC and its members 3 will take actions that they feel are necessary to avoid their successful prosecution. 4 Analyzing the fifth part of the test, the Hells Angels case has garnered media coverage

5 which may increase as the trial nears. It is possible that the identity of the jurors may become 6 known, thereby exposing them to potential threats and other forms of harassment. In Shryock 7 the trial involved "several alleged members and associates of the Mexican Mafia" and it was 8 expected that there would be "extensive publicity, enhancing the possibility that jurors' names 9 would become public and expose them to intimidation and harassment." Shryock, 342 F.3d at 10 972. Cases involving organized crime, to include the Hells Angels, regularly result in a vast 11 amount of media coverage. Aspects of the current case received national attention at the time 12 of the arrests and has been in the news over the years since the initial indictment and arrests. 13 The level of police undercover infiltration into the organization will only exacerbate the media 14 coverage, thereby increasing the potential threat to jurors and witnesses. 15 16
B.

Reasonable Safeguards to Protect the Rights of the Accused

In deciding to empanel an anonymous jury the court must take reasonable precautions to

17 protect the rights of the defendant. In Shryock the district court instructed the jury that they 18 would remain anonymous to protect "their privacy from curiosity-seekers." Shryock, 342 F.3d 19 at 972. Courts have previously protected the fundamental rights of defendants by telling jurors 20 that their names would not be released in order to avoid them being contacted and harassed by 21 the media. Shryock, 342 F.3d at 973, citing United States v. Darden, 70 F.3d. 1507, 1530 (8th Cir. 22 1995). To further avoid having the jury get preconceived views as to the dangerousness of the 23 defendants, the judge in Shryock instructed the jurors that the use of anonymous juries was 24 common and beared no relationship to the defendants' guilt or innocence. Shryock, 342 F.3d at 25 973; See also United States v. Ross, 33 F.3d at 1507, 1521-22 (11th Cir. 1994)(holding that the 26 district court's instruction to the jury that their anonymity was to insulate them from improper 27 communication from either side and was not a reflection on the defendant "eviscerated any 28 possible inference of Appellant's guilt arising from the use of an anonymous jury"). In this case,

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1 the Court may offer neutral explanations as to why it is maintaining the anonymity of the jury, 2 stating that it is for a host of non-prejudicial reasons, such as juror confidentiality from the media 3 or by simply suggesting this is a common practice, either of which in no way infringes upon the 4 rights of the defendants. 5 The empaneling of an anonymous jury in this case will protect the jurors and witnesses,

6 and as such, the integrity of the judicial process. The rights of the defendants will not be 7 adversely affected by the Court downplaying the reasons for the juror's anonymity. 8 III. COURT PROCEEDINGS 9 This Court also has the authority to conduct its courtroom proceedings in a manner that

10 is conducive to the efficient administration of justice. See e.g., United States v. Birdman, 602 11 F.2d 547, 558 (3d Cir.1979), cert. denied, 444 U.S. 1032 (1980); United States v. Gonsalves, 691 12 F.2d 1310, 1315-16 (9th Cir. 1982). As such, it is requested that this Court establish rules 13 regarding courtroom attire and as a condition of admission to the courtroom, prohibit all 14 insignias which identify a spectator, male or female, with any club or organization and whatever 15 other courtroom conditions that this Court deems appropriate to ensure the administration of 16 justice. 17 IV. CONCLUSION 18 For all the foregoing reasons, the United States respectfully requests that this Court to

19 issue an order which prohibits the disclosure of prospective jurors' names, addresses and 20 telephone numbers to both the government and to the defense and further establish specific rules 21 of courtroom conduct as outlined above in addition to whatever other rules this Court might 22 deem appropriate. 23 24 25 26 27 28 s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney PAUL K. CHARLTON United States Attorney District of Arizona Respectfully submitted this 17th day of February, 2006

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1 I hereby certify that on February 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 Carmen Lynne Fischer, [email protected], [email protected] 6 Patricia Ann Gitre, [email protected], [email protected] 7 Mark A Paige, [email protected] 8 C Kenneth Ray, II, [email protected] 9 Philip A Seplow, [email protected], [email protected] 10 11 s/ Keith E. Vercauteren 12 KEITH E. VERCAUTEREN 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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