Free Response to Motion - District Court of Arizona - Arizona

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

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, CR 03-1167-13-PHX-DGC Plaintiff, v. Henry E. Watkins, Defendant. RESPONSE TO DEFENDANT'S MOTION TO SEVER

The United States, through counsel undersigned, hereby responds to defendant HENRY E.

15 WATKINS's Motion to Sever. Defendant WATKINS has been properly joined with the other 16 defendants in this case. All of the defendants in the Second Superseding Indictment, including 17 this defendant, are members or associates of the criminal enterprise alleged in Counts 1 and 2, 18 the Hells Angels Motorcycle Club of Arizona (HAMC). All of the defendants have participated 19 in the criminal enterprise by committing predicate acts in furtherance of the enterprise. As set 20 forth in the attached Memorandum of Points and Authorities, defendant WATKINS has been 21 properly joined in this case pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure. 22 23 24 25 26 27 28 Respectfully submitted this 11th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH VERCAUTEREN Assistant United States Attorney

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1 2 I. FACTS 3

MEMORANDUM OF POINTS AND AUTHORITIES

The Hells Angels Motorcycle Club ("HAMC") was formally organized in the State of

4 Arizona in 1997. The HAMC has grown to be the largest outlaw motorcycle gang in the world 5 and maintains chapters in 25 foreign countries. In the United States, the HAMC maintains over 6 50 chapters in 23 states. In Arizona, the HAMC maintains six (6) chapters which are located in 7 specific geographical regions, all of which are in the District of Arizona. The Arizona HAMC 8 chapters include the Mesa, Phoenix, Cave Creek, Skull Valley, Nomad and Tucson chapters. 9 The HAMC of Arizona is the "enterprise" alleged in Counts 1 and 2 of the Second

10 Superseding Indictment. Presidents and officers of the Arizona HAMC chapters maintain 11 frequent contact, including attending formal monthly meetings ("OMs") designed to facilitate 12 discussions and decisions concerning issues of statewide significance to the HAMC of Arizona. 13 At these OMs, the presidents and officers of the Arizona HAMC chapters routinely discuss illicit 14 activities, financial issues, organize events such as motorcycle runs, and issue collective 15 decisions concerning membership, and discipline of individual chapter members. In addition, 16 the statewide enterprise is expressly demonstrated by the "Arizona" rocker which is worn by 17 each member of the Arizona HAMC. With respect to decision making and the conduct of illegal 18 activities, the influence of the statewide Arizona HAMC enterprise is unique in comparison to 19 other HAMC state organizations because the HAMC of Arizona is the unqualified, dominant 20 Outlaw Motorcycle Gang (OMG) in Arizona. As a consequence of the HAMC's control over 21 Arizona, it is historically and effectively a one OMG state, and HAMC strives to maintain its 22 seemingly monopolistic control over their "territory." 23 The formal hierarchy of the Arizona HAMC is typical of other HAMC organizations. Each

24 HAMC chapter has a president, vice-president, secretary/treasurer, sergeant-at-arms, and security 25 officer who preside over the chapter members and prospective members. The Arizona HAMC 26 is part of the West Coast region, which is run by an executive body whose officers were elected 27 from the HAMC chapters in that region. Significant decisions affecting HAMC chapters are 28 made at regional, national, and international meetings.
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The Arizona HAMC operates under HAMC bylaws which outline the rights and

2 responsibilities of its members. Common membership responsibilities include ownership of a 3 Harley-Davidson motorcycle, payment of membership dues, and attendance at weekly chapter 4 meetings (referred to as "church"). 5 Only "full-patched" members enjoy the privilege of displaying certain HAMC indicia of

6 membership, including patches, vests, the "red and white" colors, and tattoos with images, 7 colors, or lettering associated with the HAMC. For example, "full-patched" members of the 8 Arizona HAMC wear distinctive patches or colors on the back of leather or denim vests. The 9 center patch is the caricature of a skull with wings, known as the "Death Head." Above the 10 "Death Head" is the top rocker which consists of a white patch with "HELLS ANGELS" spelled 11 in large, red letters. Below the "Death Head" is the bottom rocker which consists of a white 12 patch with the word "Arizona" spelled in red letters. To the right of the "Death Head," members 13 wear a small white patch with the red letters "MC" for "motorcycle club." The Arizona HAMC 14 chapters are commonly referred to as the "red and white" because of the white patches with red 15 lettering. The patches and colors are property of each chapter, to be worn by HAMC members, 16 and are regarded by them to be sacred. 17 Arizona HAMC members also frequently wear a "1%" patch, in addition to the "Death

18 Head" patches, on the front of their vests to identify themselves as belonging to the 1% of the 19 motorcycling public who are not law-abiding citizens. Members also wear a patch with "AFFA" 20 lettering which stands for "Angels Forever, Forever Angels" and patches with the member's 21 moniker and/or chapter office. 22 The HAMC and the Mongols have engaged in violent confrontations for more than

23 25 years. In 1977, as a result of a disagreement concerning the lettering used on biker-related 24 motorcycle vests and jackets, members of the HAMC initiated a violent campaign against 25 the Mongols, which included murder. On April 27, 2002, during the Laughlin River Motorcycle 26 Run, in Laughlin, Nevada, members of the HAMC from various chapters, including the HAMC 27 of Arizona, entered Harrah's Casino in Laughlin, Nevada, and provoked a violent confrontation 28 with members of the Mongols. The fight quickly escalated from fists to knives and firearms.
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1 The confrontation culminated in an exchange of gunfire inside the casino between members of 2 the HAMC and the Mongols. As a result, two HAMC members and one Mongol were killed and 3 over 14 others suffered injuries from gunfire, knives, and blunt force trauma. HAMC of Arizona 4 members and codefendants Smith, Walters, and Schaefer were directly involved in the Laughlin 5 incident. 6 Defendant WATKINS is charged in the Second Superseding Indictment with the

7 following charges: Count 5, a Violent Crime in Aid of Racketeering ("VICAR"), as well as a 8 drug offense (Count 11), and a firearms offense (Counts 10). The Government will introduce 9 evidence at trial that defendant WATKINS was a member of the Tucson chapter of the Hells 10 Angels Motorcycle Club ("HAMC") in Arizona, knew that the HAMC committed racketeering 11 acts that affected interstate commerce, and agreed that members of the HAMC would commit 12 racketeering acts. The agreement in that regard took place in Arizona, even though some of the 13 racketeering acts did not. All of the defendants in the Second Superseding Indictment, including 14 defendant WATKINS, are members or associates of the criminal enterprise alleged in Counts 15 1 and 2, the Hells Angels Motorcycle Club of Arizona. All of the defendants have participated 16 in the criminal enterprise by committing predicate acts in furtherance of the enterprise. 17 Some of the evidence that the United States will present at trial to show defendant

18 WATKINS' involvement includes the following facts: 19 On May 10, 2002, a CI 790 with Red Devil Tucson chapter president, Anthony Diego Cruze

20 and a second person later identified as HANK WATKINS. Cruze took the CI to a bathroom in 21 the rear of the business and stripped the CI completely naked to look for body wires. The CI 22 informed Cruze that he wished to buy one or two dozen firearms, including machine guns, 23 sawed-off's and high caliber pistols. Cruze then stopped the discussion and told WATKINS to 24 go outside and search the CI's vehicle. WATKINS returned a short time later and nodded to 25 Cruze, and at that time, Cruze introduced the CI to WATKINS and explained that WATKINS 26 was the contact for the guns. WATKINS inquired into the "politics" of the CI's intended 27 firearms purchase and the CI described the ruse scenario of buying the guns to send to Mexico 28
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1 to be used by a rival gang against the Mongols OMO in Mexico. At this time, WATKINS stated 2 that he would be able to provide what the CI was looking for. 3 On May 15, 2002, the CI called Cruze and asked how much money the CI might need to

4 consummate the anticipated firearms purchases previously discussed between the CI, Cruze, and 5 WATKINS. Cruze informed the CI that Cruze would meet with Hank the following day and 6 then call the CI back with a number (amount of money) later. 7 On May 25, 2002, the CI accompanied Cruze, WATKINS and nine other Red Devils chapter The CI purchased two eight balls of

8 members and associates/prospects on a run.

9 methamphetamine from Cruze during this time and later discussed the pending firearms purchase 10 with both Cruze and WATKINS. During these conversations, both Cruze and WATKINS 11 explained that they would be selling the guns to the CI, but that the sale was delayed as they 12 were "checking on his mama," referring to background inquiries of the CI, and that they had 13 been asking around with other MC members and associates regarding the CI's ability to be 14 trusted. 15 On May 30, 2002, the CI telephoned Cruze and inquired as to the contact information for

16 WATKINS and the details of the anticipated firearms transaction. Cruze said that he would have 17 WATKINS telephone him shortly. Later this date, WATKINS telephoned the CI and informed 18 him that he (WATKINS) had six firearms for sale for approximately two thousand dollars and 19 would sell the guns to the CI during the upcoming weekend, likely on Saturday. 20 On June 1, 2002, WATKINS telephoned the CI and informed him that he was prepared to

21 deliver the six firearms discussed prior on this date. Agents met with the CI and gave him the 22 $2,200 for the purchase of the firearms and verified that the CI had no guns in his possession. 23 The CI went to the Tucson area and telephoned WATKINS's cell phone and was told to go to 24 the Sonic restaurant at Grant Road, east of I-10, to await WATKINS's arrival. The transaction 25 with WATKINS was completed. The CI purchased from WATKINS a Norinco 7.62 mm SKS 26 semiautomatic rifle, two Mossberg twelve gauge shotguns (one of which had the serial number 27 obliterated), a Remington Arms 12 gauge shotgun, a 7.62 mm Billerac semi-automatic rifle, and 28 a Norinco 9 mm semi-automatic pistol.

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The CI said the transaction occurred as follows: He arrived at the Sonic restaurant and

2 telephoned WATKINS. WATKINS told the CI to wait for him and not to use his cell phone. 3 Within about ten minutes of his arrival, the CI was contacted by WATKINS who was driving 4 a white colored Ford Explorer. WATKINS instructed the CI to follow him to a junkyard to 5 complete the transaction. While completing the transaction, WATKINS told the CI that he did 6 not usually do business with people that he had not known for long, but the CI's reputation and 7 the people vouching for him led WATKINS to do the deal, because WATKINS is always 8 looking to make money. During this time, potential counter-surveillance was observed in the 9 white Ford Escape, driven by a white male. WATKINS removed the six firearms, ammunition, 10 holster, and stock from the rear seat of his vehicle and handed them to the CI. WATKINS told 11 the CI that the pistol "has a lot of dirt behind it," indicating that the firearm has probably been 12 used in a prior shooting. WATKINS was given $2,200 for the firearms, including $300 that was 13 to be given to Cruze for the two eight balls of methamphetamine. WATKINS said that the $300 14 was an acceptable price and he would give the money to Cruze. WATKINS asked the CI if he 15 was able to provide WATKINS with large quantities of meth, since the meth he was getting to 16 sell was a poor quality. The CI said that he would ask some people about the issue, but 17 ultimately, it was not the CI's decision and the CI could not commit to supplying any narcotics 18 to WATKINS now or in the future. 19 WATKINS and the CI discussed future transactions involving firearms, and WATKINS

20 stated that "everybody is gearing up and calling" him and that he has been very busy recently. 21 WATKINS said he could provide Mac 10's, Mac 11's, HK 91's, Uzi's, fully automatic machine 22 guns, detonator cord, mercury and timing switches, and other items to the CI in the future, since 23 he was pleased with how this deal went. The CI left in one direction and WATKINS in the 24 opposite. However, the CI detected that he was being followed by the previously discussed 25 white male in the white Ford Escape. 26 On June 5, 2002, Red Devil MC Tucson chapter sergeant at arms, WATKINS, aka Hank,

27 arrived unannounced at the CI's residence. WATKINS said that he had other items to deliver 28 to the CI, which included two 7.62 mm rifle magazines, an upper receiver for a SKS 7.62 mm

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1 rifle and 136 live rounds of ammunition. WATKINS said that he would begin to put larger 2 transactions together for the CI and offered to sell the CI a Taurus .38 caliber handgun with a 3 titanium frame. WATKINS offered to provide "L Ephedrine Hydroxide" for use in cooking 4 meth. WATKINS then provided an approximate "eight ball" of suspected meth to the CI, with 5 the understanding that he would sell it and pay WATKINS for it at a later date. 6 On September 18, 2002, UC's and the CI arrived at Craig Kelly's home at 1501 South

7 Winmore in Tucson, Arizona. While there the CI and the UC's reiterated that they were 8 interested in purchasing multiple firearms. They were asked why they did not go to the Red 9 Devils, since they had been previously referred to them. The CI said that WATKINS had not 10 returned his calls and it was necessary to obtain some firearms soon. 11 On September 19, 2002, the UC's were again at Craig Kelly's house in Tucson. Anthony

12 Diego Cruze was also present and informed the operatives that WATKINS had changed his 13 phone number, and that is why they were unable to get a hold of him previously. 14 On October 26, 2002, the UC's and the CI attended the Hells Angels Motorcycle Club, Five

15 Year Anniversary Party at the Mesa clubhouse. HENRY WATKINS was in attendance as an 16 HAMC Tucson prospect. 17 On November 2, 2002, the UC's and the CI arrived at the residence of Douglas Dam at 3708

18 East Kleindale, in Tucson, Arizona. Shortly after their arrival, they were met by WATKINS and 19 Douglas Dam, both from the HAMC Tucson Chapter. The UC greeted and congratulated 20 WATKINS on becoming affiliated with the HAMC, as WATKINS had been patched from the 21 Red Devils. Dam removed parts from a box revealing two firearms, a H&K 9mm pistol and an 22 Intratec 9mm Luger and requested a price of $1000 and $600, respectively. Both Dam and 23 WATKINS attempted to justify the prices, with WATKINS saying that the H&K would not be 24 in their possession long. When the UC offered to go to a nearby bank, WATKINS said he would 25 go with him and they left together in the UC's vehicle. 26 While driving to the bank, WATKINS told the UC the following: that he left the Red Devils

27 MC to prospect with the HAMC Tucson and displayed his "out" date tattoo, that he had been 28 ordered to stop selling firearms with Rudy (Solo Angeles Nomads president) until he was cleared
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1 to do so by the HAMC. WATKINS said a problem with his "business" had arisen with an 2 unknown person talking in a local tavern, but that he had since resolved the issue. WATKINS 3 said that he was now working under the direction of the HAMC Tucson charter and that he is 4 constantly being offered guns for sale. WATKINS said that he had test-fired the H&K, and that 5 it was a very accurate shooting firearm and a good value for the price. Additionally, WATKINS 6 said that he has a "Bull Pup" firearm that is fully automatic and asked what type of firearms the 7 UC is interested in. The UC said he prefers the larger frames and that he was interested in 8 "exotic" and large framed firearms. Upon their return to the house, the UC paid Dam $1,600 9 for the two guns. WATKINS provided the UC with a contact telephone number. 10 On November 23, 2002, a UC and CI met with HAMC Tucson chapter members Dam,

11 MacPherson and Tony Cruze at Dam's residence in Tucson, Arizona. During this contact Dam 12 reported that he had an SKS and that WATKINS was his prospect. WATKINS had told Dam 13 that he had firearms available for sale to the operatives and Dam was willing to broker deals as 14 a middleman. Dam said that he was going to attend the HAMC Nomad charter support run in 15 Bullhead City, Arizona with WATKINS and would determine if WATKINS had any firearms 16 for sale. 17 On November 26, 2002, after a UC bought three firearms for $1,000 from Dam, Dam

18 commented that WATKINS is attempting to locate more firearms for the UC. 19 On November 30, 2002, the UC's arrived at the HAMC Arizona Nomad charter support

20 party at the Inferno Lounge in Bullhead City, Arizona.. Among the many HAMC members 21 present was WATKINS, who was wearing his HAMC vest. WATKINS told the operatives later 22 at their house that he had developed a source that was manufacturing machine guns in Tucson 23 and that the source was making "bull-pup" type machine guns at a rate of about one a week. 24 WATKINS' source wanted to sell the firearms as soon as they were made so he did not have 25 them in his possession too long. WATKINS said he was paying $2,500 for the guns and selling 26 them for $3,000. The profit margin would cover his commission and risk, since being in 27 possession of a machine gun would expose him to twenty years in prison. 28
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Dam told the UC and CI that he and WATKINS had brought three firearms to Bullhead City

2 for the UC and that he needed to make some money. The UC invited the two to bring the guns 3 into his residence and the two removed the firearms from the bed-mounted toolbox in 4 WATKINS pickup. The box was key locked with a key that was in WATKINS' possession, and 5 the two each carried the weapons into the residence and placed them on the kitchen table. Dam 6 and WATKINS negotiated the sale of a Sig Sauer, model P230, a Bryco Model Jennings Nine 7 9mm, and a Ruger model 94, .40 caliber. Dam offered a package price of $1,600, and the UC 8 offered $1,500, which was accepted. They then went to the Inferno Lounge, where WATKINS 9 advised the CI that he wanted to obtain some personal use quantity of meth. 10 WATKINS said that he had been approached by HAMC Tucson president Craig Kelly to

11 become a prospective member. WATKINS said he had been a founding member of the Red 12 Devils and that Cruze and Wright were upset with him for leaving the club. WATKINS was 13 tasked with soliciting the HAMC prospecting of the UC by Kelly. In further discussion of 14 firearms transactions, WATKINS expressed his desire to broker a machine gun deal with the 15 UC, but needed a minimum of $700 to begin the construction. The UC told WATKINS that he 16 would give him a $500 down payment for the machine gun, which WATKINS accepted. 17 On December 3, 2002, the CI, Dam and WATKINS transported a disabled vehicle to

18 Tucson. During this time, WATKINS told the CI that he would attempt to deliver the machine 19 gun ordered by the UC on December 9, 2002. WATKINS said that he is interested in entering 20 into a marijuana deal with the Solo Angeles MC and that he is familiar with handling 100 pound 21 transactions. WATKINS also commented that he has access to 110 pounds of red phosphoreus, 22 a precursor in the manufacture of meth and would be interested in some type of trade for 23 ephedrine. Additionally, WATKINS expressed an interest in the Solo Angeles taking stolen cars 24 to Mexico and asked if the only point for the Solo Angeles to cross was Tijuana, to which the 25 CI replied that he could arrange for crossings in Nogales. WATKINS commented that Dam is 26 an enforcer for the HAMC and that he had to travel to Ohio on HAMC business and that he 27 (WATKINS) is an expert at locating missing persons using a computer. 28
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On December 9, 2002, the UCs met with HAMC Tucson member Douglas Dam and

2 followed Dam to the home of HAMC Tucson prospect WATKINS. Upon their arrival Dam 3 opened and entered a mobile mini storage container located within the side yard of the residence. 4 Dam told the operatives that HAMC Tucson charter president Craig Kelly had a key to the 5 residence and lived nearby. Dam led the operatives to the back of the storage container and 6 presented four firearms to them: a Glock Model 30 .45 caliber handgun, two unknown makes 7 of SKS-type 7.62mm assault rifles, and a MAS 7.62mm/.308 caliber assault rifle. 8 During further discussions between Dam and the operatives, Dam said that he was trying

9 to sell the weapons for $1,500 for other HAMC Tucson charter members and that the price 10 included two metal boxes of ammunition and assorted firearm magazines. Dam said that this 11 transaction was separate than the one being done with WATKINS, although due to WATKINS' 12 prospect status, Dam must approve of all of his transactions, since he is his sponsor. Dam was 13 aware of the machine gun deal being worked with WATKINS and has since approved it, 14 although he had not been given notice of it prior to WATKINS entering the deal. 15 WATKINS arrived at the residence during the negotiation and greeted the operatives. He

16 directed the UC's attention to a firearm that was concealed between some boxes, and it was 17 removed and examined by the UC. The firearm was a conglomeration of various parts and 18 housed in a Ruger mini-14 receiver. The weapon had a pistol grip and a 30 round "banana" style 19 magazine. WATKINS said the weapon was fully automatic, although he had not test-fired it yet. 20 The weapon was manufactured by WATKINS' source and he had $1,000 into the weapon ($500 21 deposit from the UC and $500 of his own money). 22 The UC paid Dam the $1,500 for the four weapons and placed them in his vehicle. The UC

23 attempted to test fire the machine gun, but was not sure it was working as a fully-automatic 24 weapon. WATKINS suggested that the UC only pay him $1,000 and attempt to confirm the 25 weapon would fire fully automatic. The UC agreed to this and WATKINS said that he would 26 contact the UC within the next few hours to confirm whether this was a fully automatic weapon. 27 The UC and other agents later met and determined that the weapon would not fire fully 28 automatic. The UC returned to WATKINS' home and discussed the matter with him.
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1 WATKINS had suggested that the UC keep the weapon "as is" for the $500 down payment, but 2 the UC said that he wanted it fully automatic, as previously promised. WATKINS said the 3 manufacturer lived on a 30 acre ranch in Wilcox which is equipped with a shooting range. 4 WATKINS agreed to try to get it fixed and said that he would have it test fired in his presence. 5 The UC had his money returned for the time being. 6 On December 19, 2002, the CI spoke by telephone with HAMC Tucson prospect WATKINS

7 about the machine gun transaction with the UC. WATKINS stated that he and other HAMC 8 members had "beat down" and taken the weapon away from the person that had provided them 9 with the machine gun originally. The subject had been beaten because he lied, although 10 WATKINS said that he would provide the CI with the weapon prior to the Tucson HAMC 11 support party on December 21, 2002. 12 On December 21, 2002, the CI went to WATKINS' residence, but WATKINS told him that

13 he did not have the weapon, because it was being fixed so the magazine would feed into the 14 weapon correctly. WATKINS commented that the person beaten over this would be hurting for 15 days. WATKINS then showed the CI an M-14 rifle that was going to be made fully automatic 16 and could be provided to the Solo Angeles at a later date. WATKINS also alluded to the fact 17 that the Solos were going to be patched over to HAMC. 18 On February 1, 2003, WATKINS and HAMC Tucson president Craig Kelly were involved

19 in the assault of Daniel Gutierrez. 20 On March 8, 2003, the UC spoke by phone with WATKINS. WATKINS apologized for the

21 failed firearm transaction, but that he had been "ordered from above" to have the weapons 22 remain in the Tucson HAMC charter's arsenal. WATKINS then commented that the Solo 23 Angeles had become very popular and that they would be pushed to declare their intentions 24 toward the HAMC and to "keep Tucson in mind." Lastly, WATKINS said that "we may soon 25 be doing business as full brothers." 26 On July 8, 2003, Henry WATKINS was arrested at his home on a federal warrant by the Oro

27 Valley Police Department. WATKINS was found in possession of two firearms, one Beretta 28 model 92F 9mm pistol, and the other a Ruger Mini-14, .223 caliber rifle. In a post-Miranda
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1 interview, WATKINS refused to give consent to search the home, but did answer some questions 2 reference his affiliation with HAMC. WATKINS admitted being a member of the Red Devils 3 MC, but had patched out and had prospected with HAMC, but had withdrawn his name for 4 membership because he did not wish to live that kind of lifestyle any longer. 5 II. LEGAL ANALYSIS 6 7 A. Joinder Generally Generally, persons indicted together should be tried together. United States v. Van

8 Cauwenberghe, 827 F.2d 424, 431 (9th Cir. 1987); United States v. Polizzi, 801 F.2d 1543, 1553 9 (9th Cir. 1986); United States v. Parker, 404 F.2d 1193, 1196 (9th Cir. 1968). The courts have 10 adopted this general rule because joinder serves the public interest in that it "expedites the 11 administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens 12 the burden upon citizens who must sacrifice both time and money to serve upon juries, and 13 avoids the necessity of recalling witnesses who would otherwise be called upon to testify only 14 once. United States v. Gaines, 563 F.2d 1352, 1355 (9th Cir. 1977); Parker, 404 F.2d at 1196. 15 Joint trials promote efficiency and "serve the interests of justice by avoiding the scandal and 16 inequity of inconsistent verdicts." Zafiro v. United States, 506 U.S. 534, 537 (1993), quoting 17 from Richardson v. Marsh, 481 U.S. 200, 209 (1987). For these reasons, the United States 18 Supreme Court has "repeatedly" approved of joint trials. Zafiro, 506 U.S. at 537-538. 19 The test for severance is not simply whether prejudice exists from joinder, since some

20 prejudice is inherent in any joinder of defendants. United States v. Smith, 893 F.2d 1573, 1581 21 (9th Cir. 1990); United States v. Vaccaro, 816 F.2d 443, 448 (9th Cir. 1987) (if only "some" 22 prejudice was all that needed to be shown, few, if any, multiple trials could be held); Huddleston 23 v. United States, 485 U.S. 681 (1988). "Thus a defendant must show `clear, manifest, or undue' 24 prejudice from a joint trial." Polizzi, 801 F.2d at 1554. Even if prejudice is shown, the Supreme 25 Court has held that Rule 14, Fed. R. Crim. P., leaves the tailoring of the relief to the district 26 court's sound discretion. Zafiro, 506 U.S. at 538-39. Where there is a risk of prejudice, 27 measures less drastic than severance, such as limiting instructions, "often will suffice to cure any 28 risk of prejudice." Id. at 539.
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B. The Joinder of Defendants is Proper in this Case Defendant is charged in Count 5 with VICAR, as well as a firearm and drug offense. The

3 racketeering enterprise for Count 5 is the HAMC of Arizona, of which defendant WATKINS 4 was an admitted member (prospect). Rule 8(b) provides: 5 6 7 8 The indictment or information may charge 2 or more defendants 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. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count. In the present case, defendant WATKINS is alleged to have participated in the same acts or

9 series of acts as his codefendants. Probable cause supporting the allegations in Counts 5, 10 and 10 11 were found by a federal grand jury. Even though all of the defendants are not charged in each 11 count, it is not fatal to the joinder of defendants in this matter. Rule 8(b) specifically provides 12 that all defendants need not be charged in each count. Consequently, joinder of the defendant 13 with the other members of this racketeering enterprise is proper under Rule 8(b). 14 The requirements of Rule 8(b) are satisfied simply by establishing the existence of an

15 enterprise and by showing that each defendant participated in the same enterprise through the 16 commission of the charged predicate offenses. See, United States v. Persico, 621 F.Supp. 842, 17 850-855 (S.D.N.Y. 1985)(In a prosecution of the Colombo Crime Family, a Rule 8(b) misjoinder 18 motion was denied, even though all the defendants were not named in every count of the 19 indictment, or in every predicate act, because the racketeering acts constituted a series of acts 20 or transactions sufficiently linked to permit joinder). 21 The Second Superseding Indictment satisfies the standards of Rule 8(b) because the

22 defendants participated in the same acts or transactions, or in the same series of acts or 23 transactions in this case. This entire case involves the criminal actions of HAMC

24 members/prospects, and the government expects the same witnesses to testify as to the same 25 facts to establish the enterprise if these were separate trials. "Where virtually all the evidence 26 adduced at trial concerns a common course of conduct during the transaction or event ... 27 severance need not be granted." United States v. Gibbs, 904 F.2d 52, 56 (D.C. Cir. 1990)(Joint 28 trials may be preferred, given the heavy and increasing criminal case load in our criminal courts).
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C. The Evidence in a Separate Trial Would the Same as that in a Joint Trial To grant a separate trial for defendant WATKINS would be to require the government to

3 present the same witnesses to testify about the same illegal acts in the creation and development 4 of the enterprise. In short, the government would be forced to retry the entire case. Such a result 5 is not warranted. See, e.g., United States v. Crespo de Llano, 838 F.2d 1006, 1020 (9th 6 Cir.1987) (refusal to sever trials of defendants was not an abuse of discretion where purportedly 7 prejudicial evidence would have been admissible against defendant to prove conspiracy charge); 8 See United States v. Diallo, 29 F.3d 23, 27-28 (1st Cir. 1994) (severance not appropriate where 9 multiple trials would require "repetitive use of most of the same evidence and facts"). Any 10 potential prejudice to defendant can be remedied by this Court's careful instructions to the jury. 11 Defendant WATKINS has failed to demonstrate potential prejudice sufficiently `substantial'

12 to justify severance contrary to the statutory preference for joint trials, or a gross unfairness such 13 as to deprive the defendants of a fair trial or due process of law. A joint trial of WATKINS and 14 the other defendants will serve the "vital role" which joint trials play in our system of justice. 15 Zafiro, 506 U.S. at 537. A joint trial will promote efficiency because separate trials would 16 require the prosecution to present much of the same evidence surrounding the commission of the 17 offenses in two or three separate trials. A joint trial will also avoid the potential "scandal and 18 inequity of inconsistent verdicts" that can result from separate trials. A joint trial will enhance 19 the ability of the jury to discern the truth. 20 This case involves allegations of Racketeer Influenced and Corrupt Organizations ("RICO")

21 and Violent Crimes in Aid of Racketeering ("VICAR"). All the defendants in all of the counts 22 are charged with either RICO or VICAR. Both RICO and VICAR require proof that an 23 enterprise, the HAMC, exists and that the various criminal activities alleged in the indictment 24 were committed in furtherance of the HAMC. In separate trials, all of this evidence would have 25 to be presented repeatedly, including significant expert testimony regarding the nature, scope and 26 inner workings of the HAMC. In a joint trial, this evidence would be presented once. 27 Given that defendant WATKINS is charged in Count 5 of the SSI, the government's

28 evidence showing the HAMC as a criminal enterprise would be admissible against the defendant
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1 in a separate trial. In addition, the government would need to provide evidence that the 2 enterprise engaged in activities that affected interstate commerce. This proof would involve the 3 presentation of evidence relating to the actions of individual members of the enterprise, not just 4 the defendant. For example, the Laughlin case is relevant to the interstate nexus requirement 5 even if the defendant was not there. Again, the proof presented by the government will 6 necessarily involve the acts of other members of the HAMC, be it a separate trial or a joint trial. 7 Consequently, a separate trial of this defendant would not be appreciably shorter with respect 8 to the amount of evidence presented by the government. 9 10 D. Prejudice and Evidentiary Spillover The defense argues that this Court should sever defendant WATKINS from the other

11 defendants because evidence of the other crimes has a prejudicial spillover effect. But to prevail, 12 WATKINS must demonstrate that the evidence was so complicated or so overwhelming as to 13 prevent the jury from separating it and applying it only to those defendants against whom it was 14 offered. United States v. Taren-Palma, 997 F.2d 525, 533 (9th Cir. 1993). 15 In the government's view, WATKINS was an important part of the conspiracy and this

16 enterprise. Despite the fact that WATKINS was not present at the time of the Laughlin incident, 17 he is not divorced from the actions of coconspirators that are involved in murders and other 18 crimes. Here, the defendant is not a peripheral participant in the enterprise. WATKINS was a 19 prospect member of the Tucson chapter of HAMC. The evidence of WATKINS' participation 20 of illegal activities as a member of the Red Devils MC, as directed and allowed by the HAMC, 21 implicates the HAMC enterprise, including the purposes, means and methods of the enterprise. 22 WATKINS continued illegal activities as a prospect of the HAMC shows the continuity and 23 relationship between subservient motorcycle clubs prior to membership in the HAMC. Lastly, 24 the HAMC knew of WATKINS' illegal activities prior to including him as a prospect. 25 A court is unlikely to determine that evidentiary "spillover" resulted in undue prejudice if

26 there is substantial independent evidence of guilt. United States v. Joetzki, 952 F.2d 1090, 27 1094-95 (9th Cir. 1991). And, absent dramatic disparity of evidence, any prejudice caused by 28 joinder is cured by instructing the jury to consider separately the evidence implicating each
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1 defendant. Id.; See also United States v. Slade, 627 F.2d 293, 309 (D.C. Cir. 1980). Again, there 2 is independent evidence of WATKINS' involvement in the enterprise. WATKINS' activities 3 as a Red Devil as well as a prospect of the HAMC in the Tucson chapter are substantial. 4 Additionally, the concern of possible prejudice in this matter is outweighed by the need for

5 judicial efficiency, when much of the same evidence would be admissible against each defendant 6 in separate trials. United States v. Fernandez, 388 F.3d 1199 (9th Cir. 2004). The desire to prove 7 elements of RICO may require the admissibility of evidence of numerous and various criminal 8 acts by different participants, even though each defendant may justifiably assert that they had 9 no participation in specific acts. Id. at 1242. "Nevertheless, evidence of those acts is relevant 10 to the RICO charges against each defendant, and the claim that separate trials would eliminate 11 the so- called spillover prejudice is at least overstated if not entirely meritless." Id. 12 The Constitution does not require that, in a charge of group crime, a trial be free of any

13 prejudice, but only that the potential for transferability of guilt be minimized to the extent 14 possible. United States v. Le Compte, 599 F.2d 81, 83 (5th Cir. 1979). In the present case, the 15 jury will be instructed to consider each case separately, and it is presumed under the law, that 16 the jury will follow that instruction. Moreover, in United States v. Eufrasio, 935 F.2d 553, 56717 69 (3rd Cir. 1991), the court rejected the defendant's claim of prejudicial joinder because the 18 codefendant was charged with a predicate act involving murder in which they had no knowledge 19 or involvement. In light of the foregoing, defendant WATKINS' request for severance on the 20 basis of a perceived "rub-off" effect is not well taken. 21 Defendant WATKINS has failed to demonstrate potential prejudice sufficiently `substantial'

22 to justify severance contrary to the statutory preference for joint trials, or a gross unfairness such 23 as to deprive the defendants of a fair trial or due process of law. A joint trial of WATKINS and 24 the other defendants will serve the "vital role" which joint trials play in our system of justice. 25 Zafiro, 506 U.S. at 537. A joint trial will promote efficiency because separate trials would 26 require the prosecution to present much of the same evidence surrounding the commission of the 27 offenses in two or three separate trials. A joint trial will also avoid the potential "scandal and 28
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1 inequity of inconsistent verdicts" that can result from separate trials. A joint trial will enhance 2 the ability of the jury to discern the truth. 3 III. CONCLUSION 4 The defendant has been charged with VICAR and other related crimes. The vast majority

5 of evidence will be identical against all of these defendants. A joint trial is appropriate and the 6 risk of prejudice can be mitigated. Accordingly, the United States requests that defendant 7 WATKINS' Motion to Sever be denied. 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 11th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Keith Vercauteren KEITH VERCAUTEREN Assistant United States Attorney

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1 I hereby certify that on January 11, 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], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 22 s/ Keith Vercauteren Keith Vercauteren 23 24 25 26 27 28
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