Free Reply to Response - District Court of Arizona - Arizona

Carmen L. Fischer Attorney at Law 2 Arizona Bar #009975 Phillip E. Hantel 3 Attorney at Law
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Attorneys for Henry W atkins Louisiana Bar #25078 Luhrs Tower - Suite 403 45 W est Jefferson Street Phoenix, AZ 85003-2314 (602) 252-1282

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UNITED STATES OF AMERICA
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DISTRICT OF ARIZONA
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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HENRY E. WATKINS,
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Defendant.
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CR03-1167-PHX-DGC REPLY TO RESPONSE TO DEFENDANT'S MOTION TO SEVER (Dkt. #991)

Government's Facts The government responded to Mr. Watkins' severance motion with nearly 12 pages of allegations listed under the heading "Facts." (Response, Dkt. #1036 ("Resp.")). The government failed to cite to a single source for any "fact." Mr. Watkins moves the court to strike this portion of the government's response or in the alternative require the government to re-file its response with citations to the authority for each allegation made under its "Facts" section. The government concedes that Mr. Watkins was not a member of the HAMC. "On October 26, 2002, . . . Henry Watkins was in attendance as a HAMC Tucson prospect." (Resp. P. 7: 15-16). "On June 5, 2002, Red Devil MC Tucson chapter sergeant at arms, Watkins, aka Hank, . . . " (Resp., p. 6: 26-27). "On November 2, 2002 . . . Watkins told the UC the following: that he left the Red Devils MC to prospect with the HAMC . . . " (Resp., p. 7: 26-27). "On July 8, 2003, . . . Watkins admitted being a member of the Red Devils MC, but had

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patched out and had prospected with HAMC, but had withdrawn his name for membership because he did not wish to live that kind of lifestyle any longer." (Resp., p. 11: 26 & p. 12: 2-4). Since Mr. Watkins was not a member much of the evidence that the government has alleged on pages two and three of its response are irrelevant to Mr. Watkins. The following allegations are irrelevant: 1. The inner workings of the HAMC in Arizona beginning in 1997. (Resp., p. 2: 3-4) 2. The number and location of chapters in the world and Arizona. (Id., p. 2: 4-8) 3. The duties of Presidents and other HAMC officers. (Id., p. 2: 10-12). 4. Discussions held at meetings attended by officers. (Id., p. 2: 13-15 & 27-28). As a prospect, Mr. Watkins would not be permitted to attend any meetings. 5. Arizona HAMC bylaws. (Resp., p. 3: 1-4). 6. The indicia of HAMC membership. (Id. : 5-21). Mr. Watkins was not a member. 7. HAMC's twenty-five year feud with the Mongols Motorcycle Club. (Id. pp. 22-23). 8. The events of 1977. (Id. 23-25) Mr. Watkins was only a prospect in 2002, 25 years after these events unfolded. 9. The April 27, 2002 Laughlin River Motorcycle Run. (Id. 25-28 & p. 4: 1-5). Mr. Watkins was not involved (Id. P. 4: 3-5), and not even a HAMC prospect during April 2002. (Resp. p. 6: 2627). Mr. Watkins is charged with counts five, ten and eleven. Count 10 Possessing a Firearm with an Obliterated Serial Number-June 1, 2002 This count has nothing to do with the HAMC or any of the co-defendants. The government alleged four events which occurred in May of 2002. (Resp. pp. 4-5). These events are not charged nor alleged as racketeering acts in the second superceding indictment. The government does not allege that these events involved the HAMC. Two of the allegations involved phone calls between Red Devil Motorcycle Club President Anthony Diego Cruse and Rudy Kramer, CI 790. The government does not allege that Mr. Watkins was a party to either conversation. (15th and 30th of May 2002, Resp., pp. 5: 3-6 & 15-19). The government alleged that two meetings occurred between Rudy Kramer, CI 790, Mr. Cruse

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and Mr. Watkins during which they discussed the sale of firearms. (10th and 25th of May 2002, Resp., p. 4: 19-27 & p. 5: 1-2 & 7-14). Finally, the government alleged that Mr. Watkins telephoned Rudy Kramer to arrange for the sale of six firearms to Mr. Kramer. The government alleged that on June 1, 2002, Mr. Watkins sold six firearms to Mr. Kramer and that one had an obliterated serial number. (Mr. Watkins was not a prohibited possessor.) This allegation is the basis for count ten of the indictment. The government also alleged that Mr. Kramer paid Mr. Watkins for the firearms and gave him an additional $300 to give to Mr. Cruse for methamphetamine which Mr. Cruse had provided him on May 25, 2002. (Resp. p. 6: 1-25 & p. 5: 8-10). There is nothing within the government allegations to establish that this offense was related to the HAMC or any of the co-defendants. Count 11 Possession with the Intent to Distribute Less than Five Grams of Methamphetamine-June 5, 2002 This count has nothing to do with the HAMC or any of the co-defendants. Rudy Kramer, CI 790, claims that Mr. Watkins arrived at his home unannounced with additional firearm components and ammunition and gave Mr. Kramer an small amount of methamphetamine on consignment. (Resp., p. 6: 26-28 & p. 7: 1-5). The government has not alleged that any Hells Angels or co-defendants were involved in this transaction. According to the government, Mr. Watkins was the "Red Devil MC Tucson chapter Sergeant at arms." (Resp., p. 6: 26-27). The government alleges that Special Agents Dobyns, Special Agent Canino and Rudy Kramer, CI 790, went to Craig Kelly's home twice in September of 2002. On the first occasion, they spoke with him about purchasing firearms. When Mr. Kelly asked why they did not continue to deal with the Red Devils Motorcycle Club, Mr. Kramer and they told him that they could no longer reach Mr. Watkins. The following day, Mr. Cruse was present and told them that they could not reach Mr. Watkins because he had changed his telephone number. (Resp. p. 7: 6-13). The government alleges incidents starting October 26, 2002 when Mr. Watkins was seen with HAMC members at parties or their homes or in some cases spoken about by HAMC members. In

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addition, the agents and their informants had direct contact with Mr. Watkins during which times he spoke, according to the government, primarily about firearms sales. (Resp., pp. 7-11). However, the government has not charged Mr. Watkins with any illegal conduct during these interactions. Count 5:Violent Crime In Aid Of Racketeering: Assault With A Dangerous Weapon of Daniel Gutierrez-February 1, 2003 The government has held the evidence regarding this count close to its vest. (This is Matrix item 459 which the court has permitted the government to withhold until February 24, 2006.). The government alleged that, "Watkins and HAMC Tucson president Craig Kelly were involved in the assault of Daniel Gutierrez." (Resp., p. 11: 18-19). Government's Legal Arguments Joinder The government fails to explain how Rule 8(b) permits the joinder of Mr. Watkin's case with the charges against the other defendants in this case. Counts ten and eleven has nothing to do with the HAMC or any of the other men charged in this indictment. The government alleges that Mr. Watkins became a prospect for the HAMC in November of 2002, months after these alleged transactions with Rudy Kramer and Anthony Cruse took place. No other defendant is alleged to have participated in either of these transactions, or in the same series of acts or transactions as counts ten and eleven, as Rule 8(b) requires for joinder. The only similarity counts ten and eleven have with other counts in the second superceding indictment is that Rudy Kramer was an informant in some of the other counts against other defendants. That does not render counts ten and eleven part of a series of acts or transactions for purposes of Rule 8(b) joinder. In the New York trial court's order relied upon by the government, all of the defendants were alleged to be members of the Columbo Crime Family and all defendants were charged with RICO. United States v. Persico, 621 F. Supp. 842, 850 (S.D.N.Y. 1985). The fact that all of the defendants were charged in the RICO and RICO Conspiracy counts laid the foundation for the district court's finding that the defendants were properly joined. Perisco, 621 F. Supp. at 850-851. Joinder of otherwise separate acts may be allowed when the acts are properly linked by means of a conspiracy charge. [Citations omitted]. In much the same way, a RICO charge provides the unifying link among the substantive crimes making up a pattern of

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racketeering activity for purposes of their joinder under Rule 8(b). [Citations omitted]. The racketeering counts almost by definition constitute "a `series of acts or transactions' sufficiently intertwined to permit a joint trial of all defendants" under Rule 8(b). Persico, 621 F. Supp. at 851. Mr. Watkins is not charged with RICO or RICO Conspiracy. Moreover, he is not alleged to have committed any of the racketeering acts alleged in the RICO count. The charges against Mr. Watkins are not linked by either a conspiracy or racketeering charge. The government's also relied upon United States v. Gibbs, 904 F.2d 52 (D.C.Cir. 1990) to support its argument that Mr. Watkins was properly joined with the other defendants. However, the court in Gibbs also focused upon the fact that the defendants were involved in the same acts. All four defendants had been stopped in a car driven by Gibbs. Police found crack cocaine, firearms and evidence that the crack cocaine was possessed with the intent to distribute it. In upholding the district court's denial of severance, the court wrote: Severance is due only if the evidence against one's co-defendants is "far more damaging" than the evidence facing the accused, making it unreasonable to expect a jury to compartmentalize the evidence. [Citation omitted] Where virtually all the evidence adduced at trial concerns a common course of conduct during one transaction or event, as is the case here, severance need not be granted. That two incidents concerning prior crimes of Bennett's co-defendants were raised at trial does not require severance where the common chord of evidence bears upon the guilt or innocence of all four defendants. Gibbs, 904 F.2d at 55.

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In its response, the government wrote that the "Second Superceding Indictment satisfies the standards of Rule 8(b) because the defendants participated in the same acts or transactions, or in the same series of acts or transactions in this case." However, the government never explained how the allegations that Mr. Watkins sold firearms and drugs to Rudy Kramer or participated in an assault of Daniel Gutierrez are part of the same acts or transactions or series of acts or transactions in this case. The government cannot establish that Mr. Watkin's sales to Rudy Kramer or participation in an assault upon Mr. Gutierrez are part of the alleged murder of Cynthia Garcia; Kevin Augustiniak's alleged attempt in March of 2002 to tamper with a witness; the alleged attempt to kill a Mongol during from the April 27, 2002 Laughlin brawl; the alleged conspiracies to kill Bandidos; the alleged distribution of small amounts of methamphetamine by HAMC members all over Arizona during 2002

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and 2003; Robert Johnston's alleged attempt from December 10, 2002 to January 29, 2003 to tamper with a witness, Rudy Kramer; or Doug Dam's 1999 conspiracy to distribute marijuana (Racketeering one, two, three, four, five, seven through seventeen, eighteen, nineteen and twenty). The Gibbs court's reasoning for severance applies to Mr. Watkins. Severance is due Mr. Watkins because the evidence against his co-defendants is "far more damaging" than the evidence facing Mr. Watkins, making it unreasonable to expect a jury to compartmentalize the evidence. The evidence the government will introduce to prove the murder charge against Mr. Augustiniak and the conspiracies to kill Mongols and Bandidos, which will be lengthy, detail, dramatic and gruesome. It will take the government days, if not weeks, to present evidence regarding the brawl at Laughlin and the murder of Cynthia Garcia. Same Evidence at Joint Trial as at Separate Trial At the foundation of the government's argument is its assumption that it would be permitted to introduce all of the evidence which it would present at a joint trial against Mr. Watkins at a separate trial. This is incorrect primarily because Mr. Watkins is not charged with racketeering or conspiracy, but with separate criminal acts. In Persico, the court wrote, "In a case such as this, where all the defendants are charged with substantive racketeering offenses and participation in a racketeering conspiracy, the government would be entitled to offer evidence of the entire pattern of racketeering activity at each separate trial. This militates against defendants' claims of `prejudicial spillover.' [Citations omitted]" Perisco, 621 F. Supp. at 852. In the cases the government cited in support of its argument that the same evidence would be presented at a separate trial as it must present at a joint trial, all of the defendants were charged with conspiracy. United States v. Crepo de Llano, 838 F.2d 1006, (9th Cir. 1987) (All defendants were convicted of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute one kilogram or more of cocaine.) United States v. Diallo, 29 F.3d 23 (1st Cir. 1994) (Three defendants were convicted of possession and conspiracy to possess heroin with intent to distribute.). Since Mr. Watkins is not charged with conspiracy or RICO, the government attempts to apply the logic of these cases by arguing that the VICAR allegation against Mr. Watkins require the

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government to retry its entire case against Mr. Watkins. While, the government may want to present its entire case against the HAMC at Mr. Watkins' separate trial, the bulk of the joint trial evidence would be inadmissible at his separate trial. To prove Mr. Watkin committed a violent crime in aid of racketeering in violation of 18 U.S.C. § 1959, the government must prove the following elements: (1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendant committed a violent crime; and (4) that he acted for the purpose of promoting his position in the racketeering enterprise. See United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995) "A RICO enterprise is an entity, for present purposes a group of persons associated together for a common purpose of engaging in a course of conduct . . . [An enterprise] is proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit." United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994) "Racketeering activity means (A) any act or threat involving murder, . . . or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year . . . " Id. at 1004. The government need only establish two acts of racketeering activity to establish a pattern of racketeering. 18 U.S.C. § 1961 (5) Thus, in a separate trial against Mr. Watkins, the government would need to establish that the HAMC was a racketeering enterprise. If the government established just two of the drug racketeering acts occurred on behalf of the HAMC, the government will have established that the HAMC was a racketeering organization. Evidence of the Cynthia Garcia kidnaping and murder, the conspiracies to kill Bandidos and Mongols, the brawl at Laughlin or the intimidation of witnesses would be inadmissible at a separate trial of Mr. Watkins pursuant to Fed. R. Evid. 403 as it would be unduly prejudicial and cumulative. The government's argument that it must present all of the Laughlin evidence against Mr.

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Watkins to establish the interstate nexus is specious in light of its allegation that the HAMC is a global enterprise, with chapters in twenty-three of the fifty states. (Resp., p. 2: 3-8). Thus, Mr. Watkins' separate trial would not involve the weeks of testimony regarding the murder of Cynthia Garcia, the Laughlin brawl, the conspiracies to kill Bandidos or Mongols or the intimidation of witnesses. Contrary to the government's argument, Mr. Watkins' trial could be measured by days, not weeks or months of evidence. Prejudice and Evidentiary Spillover The government relied upon several cases to support its arguments that the potential prejudice and evidentiary spillover from a joint trial do not rise require that Mr. Watkins case be severed from his co-defendants. These cases all involve defendants charged with committing one crime. United States v. Zafiro, 506 U.S. 534, 535 (1993) (Four defendants were charged with distributing illegal drugs.); United States v. Fernandez, 388 F.3d 1199, 1215 (9th Cir. 2004) (Two defendants were charged with RICO and all defendants were charged with RICO Conspiracy and a drug conspiracy.); United State v. Taren-Palma, 997 F.2d 525 (9th Cir. 1993) (overruled on other grounds by United States v. Shabani, 531 U.S. 10 (1994)) (Both defendants were convicted of conspiracy to possess with intent to distribute cocaine.); United States v. Joetzki, 952 F.2d 1090, (9th Cir. 1991) (Defendants were convicted of mail and wire fraud. They were both principles in the company used to conduct the fraud.); United States v. Eufrasio, 935 F.2d 553 (3rd Cir. 1991) (Defendants were convicted of racketeering, RICO conspiracy, attempted extortion, and operation of illegal gambling business.); United States v. Slade, 627 .2d 293, 296 (D.C.Cir. 1980) (All defendants were charged with conspiracy to distribute heroin.); United States v. LeCompte, 599 F.2d 81 (5th Cir. 1979) (All defendants were convicted of "conspiracy in connection with the operation of a large multistate prostitution ring.") In the context of cases where all of the defendants are charged with the same crime, evidence of the crime will be admitted at either separate trials or a joint trial. Thus, the prejudice and spillover evidence are unavoidable as the government proves the crime charged against each defendant. However, Mr. Watkins is not charged in with his co-defendants in any count except the

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VICAR count, which charges both Mr. Watkins and Mr. Kelly. The government can present their case against Mr. Watkins without introducing the bulk of the evidence which will be introduced at a joint trial. Thus, the evidence will not spillover and prejudice Mr. Watkins at his separate trial. The government argued that in their view Mr. "Watkins was an important part of the conspiracy and this enterprise." (Resp., p. 15: 15-16). It is interesting that given the government's view, Mr. Watkins was not charged with conspiring or engaging in a racketeering enterprise. The government argued that given its views of Mr. Watkins, he cannot be "divorced" from the Laughlin incident or actions of "coconspirators" in other crimes. (Id. : 15-24). Again, the second superceding indictment has only alleged that Mr. Watkins had a single coconspirator: Craig Kelly. The government had admitted that Mr. Watkins was not present at the time of the Laughlin incident. (Id., :16). Many of the allegations occurred before November of 2002 when the government alleged that Mr. Watkins became a prospect for the HAMC. (Resp., p. 7: 26-27).1 The Laughlin incident as well as racketeering acts one, two, three, four, six, and nineteen and counts ten and eleven against Mr. Watkins occurred prior to November 2002. Given the lack of evidence of a nexus between Mr. Watkins and the HAMC prior to November of 2002, the government claimed without a citation to any source that prior to becoming a prospect for the HAMC, Mr. Watkins and the Red Devil MC were directed by the HAMC. (Resp., p. 15: 19-24). When this conclusory allegation is compared to the government's allegations regarding the events of counts ten and eleven, it is apparent that there is no evidence that either Mr. Watkins or Mr. Cruse were directed by the HAMC. (Resp., p. 5: 20-28 & p. 6-7: 1-5). The government discounted any prejudice to Mr. Watkins from a joint trial and claims if there is any prejudice to Mr. Watkins, it will be outweighed by the judicial efficiency flowing from a joint trial. The potential unfair prejudice arising from the spillover evidence of the murder of a young

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April 27, 2002 Laughlin incident June 1, 2002 Count 10 June 5, 2002 Count 11

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woman and a shoot out at a casino in a joint trial is great. According to the government's allegations, Mr. Watkins was a prospect for the HAMC from November 2002 until some time prior to July 2003, less than a year. Mr. Watkins is charged with three discrete acts. The evidence in support of counts ten and eleven will consist of the testimony of Rudy Kramer and perhaps the agents, although they were not present, a Mossberg shotgun, an expert regarding interstate commerce and an expert regarding the alleged methamphetamine. Since the government has not disclosed evidence regarding the VICAR count, Mr. Watkins cannot predict with great accuracy what evidence the government will present. However, it seems unlikely that the evidence the government will present to prove a single assault will be more than a very small percentage of all of the evidence presented at a joint trial. At a joint trial, the government's evidence regarding the murder of Cynthia Garcia and the Laughlin brawl will likely be a very large percentage of the evidence presented. These events are irrelevant to whether Mr. Watkins is guilty of counts five, ten and eleven. In addition to the length of the government's case-in-chief, a joint trial will require additional time to select a jury and each of the defendants will have the opportunity to present a defense which, of course, will lengthen the joint trial, and finally, the government can present evidence to rebut any defense case presented. Appointed counsel for Mr. Watkins will be required to attend every day of a trial lasting more than four months which has very little to do with Mr. Watkins. The court will be required to compensation appointed counsel for the hours spent in trial for four months instead of a couple of weeks. This is not efficient for the court. The government's expressed concern for the potential "scandal and inequity of inconsistent verdicts" is misplaced. Mr. Watkins is not charged with the same crimes as his co-defendants, other than Craig Kelly in count five. There would be no scandal or inequity if some of the defendants were acquitted and some were convicted in a joint trial. Likewise, there would be no scandal or inequity if Mr. Watkins is acquitted at a separate trial regardless of the verdicts returned against other defendants charged with other crimes. This concern may be appropriate when defendants charged with the same crime are tried separately. However, this concern is inapplicable

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to the facts of Mr. Watkins' case and no reason to deny him a fair trial as required by Rule 14. Rule 8(b) of the Federal Rules of Criminal Procedure provides that defendants may be charged together "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Rule 14 of the Rules, in turn, permits a district court to grant a severance of defendants if "it appears that a defendant or the government is prejudiced by a joinder." Zafiro, 506 U.S. at 536.

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Counts ten and eleven against Mr. Watkins should not have been joined with the other defendants in the Second Superceding Indictment and Mr. Watkins is prejudiced by the joinder of counts five, ten and eleven with the co-defendants in the second superceding indictment. Thus, this court should sever Mr. Watkins' case from his co-defendants for a separate trial. Respectfully submitted this 25th day of January 2006.

/s/______________________ CARMEN L. FISCHER PHILIP E. HANTEL Attorneys for Henry Watkins

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