Free Motion to Sever Defendant - 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 [email protected] (Email) Tel: (602) 253-2378 Fax: (602) 253-3342 Attorney for Craig T. Kelly

6 UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FACTS: Defendant KELLY and fifteen co-defendants were indicted in this matter on November 18, 2003. The charges related to Racketeer Influence and Corrupt Organization (RICO), RICO Conspiracy, and Violent Crime in Aid of Racketeering (VCAR). On September 30, 2004, the government filed a Superceding Indictment of the defendants, and on January 19, 2005, the government filed its Second Superceding Indictment. The following facts were obtained from the ATF Reports Of Investigation (ROIs), other law enforcement reports, court records, and reporters' transcripts; and for the most part, present the most favorable position of the government since they are primarily based on the government's reports of investigation. COUNT I-RICO ENTERPRISE COUNT 1 (A)(1) alleges Johnston, Smith, Dam, Walters, Murphy, Schaefer, Debensten, Jamie, Ward, Eischeid, Augustiniak, Kelly, Watkins, Reinstra, Toth and McKay were: "members and associates of the Hells Angels Motorcycle Club of ) ) Plaintiff, ) ) vs. ) ) 12. Craig T. Kelly, et al., ) ) Defendants. ) ______________________________) United States of America, No. CR-03-1167-PHX-DGC DEFENDANT KELLY'S MOTION TO SEVER COUNTS AND DEFENDANTS (EVIDENTIARY HEARING REQUESTED)

Defendant, CRAIG T. KELLY, by and through attorney , undersigned, moves this Court to Sever Counts and Defendants of the Second Superceding Indictment for the reasons stated in the following memorandum of points and authorities. It is expected that excludable delay under Title 18 U.S.C.§3161(h)(1)(F) will occur as a result of this motion or of an order based thereon. MEMORANDUM OF POINTS AND AUTHORITIES

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Arizona ("HAMC"), an organization whose members and associates engaged in acts of violence, including murder, attempted murder, conspiracy to commit murder, witness tampering and distribution of controlled substances which operated principally in the District of Arizona." COUNT 1 (A)(2) alleges the HAMC "leadership, members, and associates constituted an `enterprise' per 18 U.S.C. §1961(4). The enterprise constituted an ongoing organization whose members functioned as a continuing unit for the common purpose of achieving the objectives of the enterprise. This enterprise was engaged in, and its activities affected, interstate and foreign commerce." COUNT 1 (B)(3) alleges the purposes of the so-called enterprise: a. enriching and advancing the interest of associates and members of the enterprise through murder, attempted murder, conspiracy to commit murder, witness intimidation, and distribution of controlled substances. b. preserving and protecting the power and territory of the enterprise by using intimidation, murder, violence, threats of violence, and attempted murder and conspiracy to commit murder. c. promoting and enhancing the enterprise and the activities of its members and associates. d. keeping victims and witnesses in fear of the enterprise and in fear of its members and associates through violence and threats of violence. COUNT 1(C)(4) alleges means and methods of the enterprise: a. members and associates of the enterprise committed, conspired to commit, and threatened to commit acts of violence, including murder, to protect and expand the enterprise's territory and criminal operations. b. members and associates of the enterprise promoted a climate of fear through violence and threats of violence. c. members and associates of the enterprise used and threatened to use physical violence against various individuals. d. members and associates of the enterprise distributed methamphetamine and marijuana. COUNT 1(D)(5) alleges the Racketeering Violation to have occurred from 1999 until August 31, 2004 in the District of Arizona and elsewhere. Johnston, Smith, Dam, Walters, Murphy, Schaefer, -2Filed 12/13/2005

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Debensten, Jamie, Ward, Eischeid, Augustiniak, and other persons associated with the HAMC described above... "conducted affairs of the enterprise" directly and indirectly through a pattern of racketeering activity­acts 1 through 19 as set forth in paragraphs 7 through 27. COUNT 1(E)(6) alleges that the pattern of racketeering activity as defined by 18 U.S.C. §§ 1961(1) and (5) consisted of the following racketeering acts: ACT ONE­KIDNAPING OF CYNTHIA GARCIA ACT TWO­MURDER OF CYNTHIA GARCIA Eischeid and Augustiniak are charged on or about October 27, 2001 with kidnaping and murdering Cynthia Garcia. Michael Kramer, a CI in this investigation, aided and abetted in both crimes, but he was given a deal by the government if he worked as a CI for the ATF. Michael Kramer instigated the confrontation with Garcia and he saw other HAMC members kicking Garcia when she was on the floor of the bar, and he helped to take her to the desert for her execution. He partially cut her "neck" per his own admission. He used and distributed meth often, and he has had several encounters with the law. His handler in the ATF was John Ciccone. ACT THREE­WITNESS TAMPERING Augustinak is charged on or about March 16, 2002 with witness tampering by threatening to use physical force against an informant in violation of 18 U.S.C. §1512(b)(3)­whoever uses intimidation or threatens another person with the intent to hinder, delay, or prevent the communication to a law enforcement officer relating to the commission of a federal offense is guilty of a crime. ACT FOUR­ATTEMPTED MURDER OF MONGOLS Smith, Walters, and Schaefer are charged on or about April 27, 2002 with attempted murder of Mongols by acting in a course of conduct to intentionally kill a Mongol in violation of Arizona law. Motorcycle clubs gathered in Laughlin, Nevada. The event attracts as many as 80,000 motorcycle enthusiasts. The Mongols were staying at Harrah's. The San Francisco chapter of HAMC usually stayed at Harrah's. Undercover law enforcement officers were also on the scene. On Wednesday and Thursday numerous Mongols surrounded HAMC members in a threatening manner. On Friday night, April 26, 2002, Mongols went to the Golden Nugget where HAMC were selling HAMC items in the parking lot when approximately 50 Mongols surrounded the HAMC. Law enforcement, and SWAT defused the situation. The Mongols went back to Harrah's. On Saturday, April 27, 2002, about 200 Mongols began encircling five or six HAMC members drinking at Harrah's (a known tactic of the Mongols prior to attack). One of the HAMC members called for help. Shortly thereafter about 30 or 40 HAMC arrived on their motorcycles and entered Harrah's. Mongols and HAMC exchanged words; Mongols were the first to use lethal force -3Filed 12/13/2005

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(firing of a handgun); and eventually a physical confrontation erupted which culminated in two HAMC members being shot to death and one Mongol being stabbed to death.. ACT FIVE­CONSPIRACY TO MURDER A MONGOL Walters is charged on or about June 21, 2003 through June 26, 2003 with conspiring with ATF operative to murder a Mongol. ATF agent Jay Dobyns AKA Bird and CI James Blankinship AKA "Pops" said they knew of a Mongol hiding in Mexico. Later on, Bird told Walters that Pops was in Mexico and he was going to Mexico the next day to sell firearms and locate and kill the Mongol hiding in Mexico. Bird asked Walters for a firearm for the homicide, and Walters handed him a .380 caliber pistol and five rounds of ammunition. Bird did a ruse by faking a homicide of a Mongol. He met with several Nomads and told them that he killed the Mongol and that Pops was shot and killed. ACT SIX­WITNESS TAMPERING Johnston is accused of on or about December 10, 2002 through January 29, 2003 threatening to use physical force against Rudolph Kramer with the intent to prevent him from communicating to a federal officer the commission of a federal offence in violation of 18 U.S.C. §1512(b)3). ACT SEVEN­CONSPIRACY TO DISTRIBUTE METHAMPHETAMINE AND DISTRIBUTION OF METHAMPHETAMINE ACT SEVEN (A) CONSPIRACY TO DISTRIBUTE METH ACT SEVEN (B) DISTRIBUTION OF METH Debensten and Smith are accused of on or about February 1, 2003 conspiring to distribute less than 5 grams of meth to Pops at the Denny's at Bell and I-17. Bird and Pops met them at the restaurant and had dinner. Pops told Bird that Debensten was almost ready to consummate the deal, but he wanted Pops to wait for Smitty (Smith). Smith then told Bird to go outside the restaurant. Pops and Debensten also went outside. Smith was armed with a pistol. While Smith was talking to Bird, Smith was observing the actions of Pops and Debensten who had walked farther away in the parking lot area. Pops bought 1/16 of an ounce of meth from Debensten. Both Debensten and Smith are Bullhead City Nomads. ACT EIGHT­DISTRIBUTION OF METH Murphy (HAMC-Phoenix) on or about February 10, 2003 is accused of distributing 1/16 ounce of meth. ACT NINE­DISTRIBUTION OF METH Schaefer, a member of the Mesa Chapter, is accused of selling Agent Long 3 grams of meth at the undercover residence on or about February 12, 2003 while armed with a pistol. ACT TEN­DISTRIBUTION OF METH Denbensten, a member of the HAMC Nomad Chapter, is accused of selling two grams of meth -4Filed 12/13/2005

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to Pops on February 12, 2003. Pops met with Debensten, asked for the meth, and gave him $100 for the meth. Debensten gave Pops 2 grams of meth. ACT ELEVEN­DISTRIBUTION OF METH Murphy is accused of on or about February 14, 2003 selling 3 grams of meth to Agents Dobyns (Bird) and Long (Tim) for $100 at his residence in Phoenix. Murphy was armed with a Sig Sauer Pistol. Kim Murphy arrived at their location, and Murphy gave a 1/8 ounce of meth to Dobyins. ACT TWELVE­DISTRIBUTION OF METH Jamie, a HAMC Nomad member, is accused of giving Pops about .4 grams of meth on February 15, 2003 at Denny's, Highway 69, Prescott Valley, Arizona. ACT THIRTEEN­DISTRIBUTION OF METH Schaefer on or about February 18, 2003 is accused of selling meth. He and agent Long (Tim) were at the Romley street undercover house; and Schaefer gave about 3 grams of meth to Long (Tim) for $150. ACT FOURTEEN-DISTRIBUTION OF METH Doug Dam on or about April 1, 2003 is accused of distributing meth to Pops at a trailer in Tempe, Arizona. Pops had given Dam a ride from Tucson to Tempe, and when they arrived at the trailer, there were two other men there. There were lines of meth laid out on a table, and the two men, with Dam present. Pops said that he was directed to ingest some meth. ACT FIFTEEN­DISTRIBUTION OF METH Jaime on or about April 10, 2003 is accused of brokering a sale of 1/4 ounce (3 grams) meth from a narcotics source named Andy to Pops. Andy had delivered about 1/4 ounce of meth, and Pops bought 1/8 ounce and Jaime bought the rest for $100. Pops paid $180. ACT SIXTEEN­DISTRIBUTION OF METH Ward on or about April 28, 2003 is accused of distributing 5 grams meth to Bird for $150. Bird and Pops met with Ward in Bullhead City. Bird told Ward that he was trying to arrange for a hotel room in Las Vegas for Ward and his associates. Ward gave Bird 1/8 ounce of meth for his efforts to secure a hotel room in Las Vegas, and he sold Bird another 1/8 ounce of meth for $150. Pops was present. ACT SEVENTEEN­DISTRIBUTION OF METH Ward on or about May 16, 2003 is accused of selling 1/4 ounce meth to Dobyns for $250 at Ward's office in Kingman, Arizona. Ward was armed with a Glock pistol. The transaction took place in the office in Ward's residence. ACT EIGHTEEN­CONSPIRACY TO MURDER BANDIDOS -5Filed 12/13/2005

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Walters and Toth on or about June 12, 2003 are accused of conspiring to murder members of the rival motorcycle club­the Bandidos. ACT NINETEEN­DISTRIBUTION OF MARIJUANA Doug Dam on or about December 19, 1999 is accused of possessing with the intent to distribute less than 50 kilograms of marijuana. Dam was driving to Globe, Arizona when he was stopped for an equipment violation. The DPS officer called for a canine unit; one arrived; the officer searched the vehicle and found less than 50 kilograms of marijuana. The case was dismissed on Motion to Suppress. ACT TWENTY­CONSPIRACY TO DISTRIBUTE METH AND MARIJUANA Johnston on or about August 2002 until July 8, 2003 is accused of conspiring to distribute meth and marijuana. Defendant Kelly is not involved in any way in any of the aforementioned alleged acts. COUNT 2­RICO CONSPIRACY From 1999 until August 31, 2004 in the District of Arizona and elsewhere, Smith, Dan, Walters, Debensten, Jaime, Ward, Eischeid, Augustiniak, and Toth are accused of conspiring with each other and others to violate 18 U.S.C. §1962 (c) that is to participate in and conduct the affairs of that enterprise through a pattern of racketeering as defined by 18 U.S.C. §§ 1961(1) and (5) to include murder, distribution of meth and marijuana, and witness tampering under Arizona law. It is further alleged that a conspirator would commit at least two acts of racketeering in the conduct of the affairs of the enterprise. Defendant Kelly is not charged with RICO conspiracy. COUNT 3­VIOLENT CRIME IN AID OF RACKETEERING: KIDNAPING OF CYNTHIA GARCIA Count 3(1) alleges the existence of an enterprise. Count 3(2) alleges that the members of the enterprise engaged in racketeering activity. Count 3(3) alleges that on or about October 27, 2001, Eischeid and Augustiniak engaged in racketeering activity by restraining Cynthia Garcia with the intent to inflict death or physical injury for the purpose of gaining entrance to and maintaining and increasing position in the HAMC. COUNT 4­VIOLENT CRIME IN AID OF RACKETEERING (VCAR): MURDER OF CYNTHIA GARCIA Count 4(1) alleges the existence of an enterprise. Count 4(2) alleges that the members of the enterprise engaged in racketeering activity. Count 4(3) alleges that on or about October 27, 2001 Eischeid and Augustiniak engaged in racketeering activity by KIDNAPING and committing premeditated murder of Cynthia Garcia. COUNT 5­VCAR: ASSAULT WITH A DANGEROUS WEAPON OF DANIEL GUTIERREZ -6Filed 12/13/2005

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The government alleges "enterprise" and "racketeering". Kelly and Watkins on or about February 1, 2003 are accused of intentionally causing physical injury to Daniel Gutierrez by assaulting him for the purpose of gaining entrance to and maintaining and increasing position in HAMC. In an ATF ROI hidden by the government among pen register documents relating to several wiretaps was an ROI in which McHugh admitted to beating up Gutierrez for "hitting" on his minor god-daughter. (See EXHIBIT 1, attached). COUNT 6­VCAR­ASSAULT WITH A DANGEROUS WEAPON OF WILLIAM POTTER The government alleges "enterprise" and "racketeering". Robert McKay on or about June 21, 2000 is accused of causing physical injury to William Potter for the purpose of gaining entrance to or maintaining and increasing his position in HAMC. COUNT 7­VCAR: CONSPIRACY TO MURDER BANDITOS The government alleges "enterprise" and "racketeering". Walters, Reinstra, and Toth on or about June 12, 2003 are accused of conspiring with each other and others to murder members of the Bandidos Motorcycle Club. See Racketeering Act Eighteen, supra. COUNT 8­VCAR: THREATENING TO COMMIT A CRIME OF VIOLENCE IN AID OF RACKETEERING The government alleges "enterprise" and "racketeering". McKay on or about August 31, 2004 is accused of threatening to commit a VCAR and assault resulting in serious injury or death to maintain or increase his position in the "enterprise". COUNT 9 McKay on or about August 31, 2004 threatened to assault an ATF federal officer on account of said federal law enforcement officer's performance of official duties. See Count 8, supra. COUNT 10 Watkins on or about June 1, 2002 is accused of knowingly possessing and receiving a firearm which had its serial number and other identification required by law obliterated. COUNT 11 Watkins on or about June 5, 2002 is accused of possessing with the intent to distribute less than five grams of meth. Defendant Kelly had nothing to do with Counts 6 through 11. COUNT 12, 13, 14, AND 15 Kelly, as to each count, on or about September 19, 2002 is accused of having been convicted of Second Degree Murder, a felony, in Maricopa County, Arizona Superior Court on March 20, 1985 and further accused as to each count of possessing a different firearm transported in interstate -7Filed 12/13/2005

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commerce. On September 18, 2002, Bird and other undercover operatives went to Kelly's residence at 1501 S. Winmore, Tucson, Arizona. Bird was wearing a monitoring and recording device. The operatives said they wanted to buy firearms. They were referred to the Red Devils, but Dam spoke up and said he usually has "the stuff" on hand for sale. On September 19, 2002 Dam met with the undercover operatives at the Waffle House at 22nd Street and I-10. Kelly was not present. After eating, Dam and the operatives went to Dam's residence. Dam gave Bird a Taurus .38 caliber pistol, and Bird paid Dam $800 for the Taurus .38 caliber and a .40 caliber yet to be obtained from McPherson. Bird said there was $50 included as a "commission" for brokering the deal. Dam and the undercover operatives went back to Kelly's residence. During conversations with Kelly, Bird told him that they (operatives) gave a $500 donation to Bob Johnston for the Mesa chapter. About 45 minutes later, Dam said that they had to go to McPherson's house to get the .40 caliber pistol. Dam and the operatives went to McPherson's house. Dam picked up the .40 caliber pistol already paid for by Bird, a Chinese made 9mm pistol, and a .22 caliber target pistol. Dam and Bird left the residence to go to an ATM for Bird to get money to buy the firearms. Bird went back to McPherson's residence and paid him $300 for the Chinese pistol and the .22 caliber Hi-Standard pistol. He also said that if he got in trouble again it's his third strike. Kelly never touched the firearms nor was he ever present during the negotiations and transfers of the firearms to the ATF agent­Bird. COUNT 16 Debensten on or about November 30, 2002 is accused of possessing with intent to distribute less than five grams of meth. COUNT 17 Debensten on or about December 3, 2002 is accused of having been convicted of Possession of Narcotic Drugs, a felony in Superior Court Mojave County, Arizona and is further accused of possessing an Ithaca Model 37 20 gauge shotgun. COUNT 18 Debensten on or about December 3, 2002 is accused of having been convicted of Possession of Narcotic Drugs, a felony in Superior Court Mojave County, Arizona and is further accused of possessing a sawed-off Ithaca Model 37R 12 gauge shotgun. Count 18 alleges possession of the 12 gauge but lists the serial number of the 20 gauge. COUNT 19 Debensten on or about December 3, 2002 is accused of possessing a short-barreled shotgun, an Ithaca Model 37R 20 gauge shotgun in violation of Title 26, U.S.C. §§ 5861(D) and 5871, and Title 18, U.S.C. § 2. The serial number noted in the count is 5463314 which is the serial number for the 12 gauge. See Counts 17 and 19, supra. -8Filed 12/13/2005

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COUNT 20 Debensten on or about January 6, 2003 is accused of possessing with the intent to distribute less than five grams of meth. COUNT 21 Debensten on or about January 7, 2003 is accused of possessing with the intent to distribute less than five grams of meth. Pops met with Debensten at his residence. COUNT 22 Debensten on or about January 8, 2003 is accused of possessing with the intent to distribute five grams or more of meth. COUNT 23 Debensten on or about February 1, 2003 is accused of possessing with the intent to distribute less than five grams of meth. COUNT 24 Murphy on or about February 10, 2003 is accused of possessing with the intent to distribute less than five grams of meth. COUNT 25 Debensten on or about February 12, 2003 is accused of possessing with the intent to distribute less than five grams of meth. COUNT 26 Schaefer on or about February 12, 2003 is accused of possessing with the intent to distribute less than five grams of meth. COUNT 27 Schaefer on or about February 12, 2003 is accused of possessing a firearm in relation to a drug trafficking crime­possession with intent to distribute meth. See racketeering act 10. COUNT 28 Schaefer on or about February 12, 2003 is accused of being an unlawful user of a controlled substance and possessing ammunition. COUNT 29 Murphy on or about February 14, 2003 is accused of possessing with the intent to distribute less than five grams of meth. See racketeering act 11. COUNT 30 Murphy on or about February 14, 2003 is accused of carrying and possessing a firearm during a drug trafficking crime­possession with intent to distribute meth. COUNT 31 -9Filed 12/13/2005

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Jaime on or about February 15, 2003 is accused of possessing with the intent to distribute less than five grams of meth. See racketeering act 12. COUNT 32 Schaefer on or about February 19, 2003 is accused of possessing with the intent to distribute less than five grams of meth. COUNT 33 Schaefer on or about February 19, 2003 is accused of carrying and possessing a firearm, a pistol, during and in relation to a drug trafficking crime­possession with intent to distribute meth. When Schaefer walked into the Mesa HAMC clubhouse, he placed a .45 caliber pistol on a glass counter top and then took Pops into another room and did the drug deal described in count 32, supra. See racketeering act 13. COUNT 34 Jaime on or about April 10, 2003 is accused of conspiring with others to possess with the intent to distribute less than five grams of meth. Jaime allegedly "brokered" the transaction between Andy (a narcotics source) and Pops. Pops bought the meth for $180. See racketeering 15. COUNT 35 Jaime on or about April 10, 2003 is accused of possessing with the intent to distribute less than five grams of meth. Jaime allegedly "brokered" the transaction between Andy and Pops. See count 34, supra. COUNT 36 Jaime on or about April 10, 2003 is accused of possessing with the intent to distribute less than 50 kilograms of marijuana.. COUNT 37 Jaime on or about April 10, 2003 is accused of carrying and possessing a firearm, a pistol, during and in relation to a drug trafficking crime­possession with intent to distribute meth as alleged in count 35. Jaime was armed with a 9mm pistol. See counts 34 and 35, supra. COUNT 38 Jaime on or about April 10, 2003 is accused of carrying and possessing a firearm, a pistol during and in relation to a drug trafficking crime­possession with intent to distribute marijuana as alleged in count 36. Jaime purchased only $10 worth of marijuana and smoked part of it. Jaime was armed with a 9mm pistol. See count 36. COUNT 39 Jaime on or about April 10, 2003 is accused of being an unlawful user of a controlled substance and of possessing a firearm­the 9mm pistol. - 10 Filed 12/13/2005

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COUNT 40 Ward on or about April 28, 2003 is accused of possessing with the intent to distribute more than five grams of meth. Ward allegedly sold 5 grams of meth to Bird for $150. Bird and Pops met with Ward in Bullhead City. Bird told Ward that he was trying to arrange for a hotel room in Las Vegas for Ward and his associates. Ward gave Bird 1/8 ounce of meth for his efforts to secure a hotel room in Las Vegas, and he sold Bird another 1/8 ounce of meth for $150. Pops was present. See racketeering act 16. COUNT 41 Ward on or about May 16, 2003 is accused of possessing more than five grams of meth. He allegedly sold 1/4 ounce meth to. Dobyns (Bird) for $250 at Ward's office in Kingman , Arizona. Ward was armed with a Glock pistol. The transaction took place in the office in Ward's residence. See racketeering act 17. COUNT 42 Ward on or about May 16, 2003 is accused of carrying and possessing a firearm, a Glock 10mm pistol, during and in relation to a drug trafficking crime­possession with intent to distribute meth as alleged in Count 41. Ward allegedly sold 1/4 ounce meth to Dobyns for $250 at Ward's office in Kingman, Arizona. Ward was armed with a Glock pistol. See racketeering act 17. COUNT 43 Walters on or about June 24, 2003 is accused of knowingly transferring a firearm, Kurtz .380 pistol, knowing that the firearm would be used in a crime of violence. See racketeering act 5. Defendant Kelly had nothing to do with any of the acts alleged in Counts 16 through 43. LAW AND ARGUMENT: JOINDER IS UNDULY PREJUDICIAL Rule 8(b) provides: Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same acts or transactions or in the same series of acts or transactions constituting an offense or offences...". Federal Rules of Criminal Procedure. The only charge that Defendant Kelly is properly charged with having committed with someone else is in Count V in which Watkins is a co-defendant. In United States v. Ford, 632 F.2d 1354, 1372-1372 (9th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed. 2d 369 (1981), the Court said"...the term `transactions,' has a flexible meaning and that the existence of a `series' depends on whether there is a `logical relationship' between the transactions greater than mere factual similarity of events. There is no logical - 11 Filed 12/13/2005

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relationship between the allegation in Count 5 and the other counts in this case. Kelly is also charged in Counts 12 through 17. These allegations were obviously misjoined and an afterthought since the government did not charge them until a third try at the grand jury. These counts have no logical relationship with other counts in this case. The logical relationship between a series of transactions may be shown by the existence of a common plan, scheme, or conspiracy; but there was no such common plan, scheme, or conspiracy. (See argument, NO RICO ENTERPRISE OR CONSPIRACY, infra. Rule 14(a) permits the trial court to sever defendants. If the joinder of offenses or defendants

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in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires. In United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991) the Ninth Circuit recognized several sources of potential prejudice to joined defendants: 1) confusion of charges; 2) grossly disparate charges; and 3) denial of cross-examination and presentation of exculpatory evidence. Murder and attempted murder charges are clearly disparate charges which should be severed from Kelly's trial. The numerous distribution of methamphetamine charges do not involve Craig Kelly and would merely confuse the jury should they be in his trial. The ROIs indicate much hearsay allegedly recorded by the ATF operatives. The numerous statements of alleged coconspirators will probably deny Kelly his cross-examination rights in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 in which the Supreme Court overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct.2531 (1980) (admitting declarant-available hearsay when it has sufficient indicia of reliability). NO RICO ENTERPRISE OR CONSPIRACY The aforementioned allegations, even if true, show sporadic, unrelated, ad hoc, spontaneous acts of individuals acting for their own individual purposes­not for the alleged purposes of a "criminal enterprise". Even if Defendant Kelly and Defendant Watkins had actually beaten Gutierrez up, there is no evidence that the act was related to the purposes, goals, or benefit of a "criminal enterprise". There is also no evidence of any of the defendants' acts as being predicate acts in furtherance of a "criminal enterprise" or of them being part of a pattern of criminal conduct with continuity. It would be unduly prejudicial and fundamentally unfair to try Craig Kelly in one megatrial with these other unrelated counts and alleged racketeering acts simply because the government alleges there is an enterprise and for their convenience. The facts of this case show allegations of racketeering acts such as the murder of Cynthia Garcia in Mesa which has nothing to do with Craig Kelly who is president of a six man motorcycle

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club in Tucson. Similarly, the allegations of witness tampering, the Laughlin incident, the numerous distributions of small quantities of methamphetamine, and the other scams which the undercover operatives induced Hells Angels to participate in have nothing to do with Craig Kelly other than he is a member of the HAMC. The government has engaged in its own conspiracy to fabricate a "RICO enterprise" against

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the HAMC. The elements of RICO are: (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity. Two predicate acts are required. See U.S. v. Fernandez, 388 F.3d 1199, 1221 (9th Cir. 2000). The term "enterprise" encompasses both legitimate and illegitimate enterprises. U.S. v. Turkett, 452 US 576, 580-593 (1981). The existence of an enterprise must be proven as an element of the case that is separate and distinct from the pattern of racketeering activity alleged in any given case. U.S. v. Turkette, 452 U.S. at 583 (1981).

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In the instant case, government has charged a series of separate, distinguishable, often spontaneous, ad hoc acts, and called them racketeering acts in an attempt to create the image of an enterprise. There is no "HAMC of Arizona" which constitutes an "enterprise"; there was no state chain of command. In a RICO prosecution, the government must establish both the existence of an enterprise and a pattern of racketeering activity. The two elements are separate and the enterprise is not, by its mere existence, proof of a pattern of racketeering activity. The "enterprise" is not the pattern of racketeering activity. Turkette, supra, 452 U.S. at 583. Craig Kelly was not engaged in any conduct to benefit a RICO enterprise. Even if he beat up Gutierrez, which he did not, that would not have been a RICO or VCAR (violent crime in aid of racketeering). For what purpose? But we know that McHugh did it, anyway. As for the gun charges, Kelly had nothing to do with the gun transactions with Bird. Dam, a three-time loser, and McPherson did the deal. The fact that Kelly may have known about the deal does not make him a prohibited possessor or participant. But, again, these alleged acts are not related to conducting the affairs of a RICO enterprise or conspiracy. TO CONDUCT THE AFFAIRS OF THE ENTERPRISE The phrase, "to conduct the affairs of the enterprise," relates to the performance of the acts, functions, or duties which are necessary or helpful in the operation 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. The Ninth Circuit delineated what it meant "to conduct the - 13 Filed 12/13/2005

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affairs of the enterprise". The Court of Appeals stated that 18 U.S.C. §1962 (c) provides in relevant part: "`It shall be unlawful for any person...associated with any enterprise...to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity...' Appellants contend that the district court's jury instructions improperly defined the elements of (1) `to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs'; and (2) `pattern of racketeering activity'. "1. `[T]o conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs' The district court gave the following instruction with respect to the `to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs' element: The phrase `to conduct or participate in the affairs of the enterprise' related to the performance of the acts, functions, or duties which are necessary or helpful in the operation 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.'" In Reves v. Ernst & Young, the Supreme Court held "`to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs' one must participate in the operation or management of the enterprise itself." 507 U.S. 170, 185 (1993) (citation omitted). The Court concluded that the word `conduct' indicated some degree of direction over the affairs of the enterprise. Id. at 178. The Court concluded also that the term `participate' meant `to take part in' and not to `aid and abet.' Id. at 178-79."' (Emphasis added). Assuming arguendo, Craig Kelly actually did what the government has accused him of doing, the government's allegations and facts do not show that he conducted the affairs of an "enterprise". PATTERN OF RACKETEERING ACTIVITY None of the actions alleged by the government indicate a pattern of racketeering - 14 Filed 12/13/2005

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activity as envisioned by the RICO statute. Shyrock, supra, discussed "pattern of racketeering activity". "2. `Pattern of Racketeering Activity' The district court gave the following instruction with respect to the `pattern' element: `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. In H.J. Inc. v. Northwestern Bell Telephone, 492 U.S. 229 (1989), the Supreme Court held that the pattern element requires more than just the commission of two or more predicate acts. "The term `pattern' itself requires the showing of a relationship between the predicates and of the threat of continuing activity. . .It is this factor of continuity plus relationship which combines to produce a pattern..." (Emphasis added). H.J. Inc. at 239. The commission of two or more, widely separated and isolated criminal offenses does not make a pattern. Id. Continuity is the more difficult requirement to define, but it primarily is ,a temporal concept.

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H.J. Inc. at 241. Whether the predicate acts proved establish a threat of continued racketeering activity depends on the specific facts of each case. H.J. Inc at 242. Craig Kelly was not involved in any pattern of criminal conduct. CONCLUSIONS Defendant Craig Kelly is aware that severance of the counts and defendants in this case is solely in the discretion of the trial judge. Kelly believes that the trial of the charges against him in a joint trial with charges of murder, attempted murder, witness tampering, and miscellaneous drug

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charges would cause clear, manifest, and undue prejudice that would violate his right to a fair trial. Defendant Kelly asks this Honorable Court to consider trying Kelly and Watkins with all the charges against them in a single trial and to sever all other counts and defendants from their trial.

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1 2 3 RESPECTFULLY SUBMITTED this 13th day of December, 2005. s/Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

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CERTIFICATE OF SERVICE I hereby certify that on December 13, 2005, I electronically transmitted the attached

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document to the Clerk of the U.S. District Court using the CM/ECF System for filing and Hon. David G. Campbell. s/ Joseph E. Abodeely JOSEPH E. ABODEELY Attorney for Craig T. Kelly

10 for transmittal of a Notice of Electronic Filing to all counsel, and I emailed a copy to the

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Filed 12/13/2005

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