Free Other Notice - District Court of Arizona - Arizona

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PATRICIA A. GITRE, P.L.C (#011864) 331 N. 1st Avenue, Suite 150 Phoenix, Arizona 85003 Telephone: (602) 452-2918 Fax: (602) 532-7950 [email protected] Attorney for Kevin J. Augustiniak IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA,

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CR03-1167-PHX-DGC DEFENDANT'S RESPONSE TO UNITED STATES' NOTICE OF INTENT AN MOTION TO INTRODUCE INEXTRICABLY INTERTWINED EVIDENCE OR ALTERNATIVELY EVIDENCE PURSUANT TO RULE 404(B)

Plaintiff, vs. KEVIN J. AUGUSTINIAK Defendant.

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Defendant Kevin Augustiniak, through counsel submits his response to the
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Government's Notice of Intent and Motion to Introduce Inextricably Intertwined Evidence or, Alternatively, Evidence Pursuant To Rule 404(B). Defendant also respectfully requests this court to deny admission of the any uncharged conduct as inextricably intertwined evidence or alternatively pursuant to FRE 404(b). Defendant further

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requests the court deny the Government's Motion to introduce a series of police stops and police observations to establish Defendant's status a HAMC member because of the prejudicial effect to defendant.1 FRE 403. This response is based on the attached memorandum of points and authorities, exhibits, and the government's proffered evidence contained in its Notice (Dkt. 975).

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MEMORANDUM OF POINTS AND AUTHORITIES I. THE INDICTMENT

Augustiniak is charged with in the second superseding indictment RIC0 Enterprise (Count 1), Conspiracy to Commit RICO (Count 2) and Violent Crime in Aid of

Racketeering (Counts 3 and 4). For Count 1 RICO, the government must prove beyond a reasonable doubt that defendant (1) conducted the affairs (2) of an enterprise, (3) through a pattern (4) of racketeering activity (predicate acts) and (5) nexus to interstate commerce. Proof of two predicate acts is required. United States v. Fernandez, 388 F.3d 1199, 1221 (9th Cir. 2000). Count 2 RICO conspiracy requires the above elements with the additional element of proof of a conspiracy that each defendant agreed that a conspirator would commit at least two predicate acts of racketeering. Id at 1231 citing United States v. Bennett, 44 F.3d 1364, 1374 (8th Cir.1995) (holding that in addition to the elements of the substantive violation, "[a] RICO conspiracy requires proof of the additional element of an agreement"). As to Counts 3 and 4, the government must prove beyond a

reasonable doubt that: (1) HAMC was an enterprise within the meaning of RICO; (2) HAMC was engaged in racketeering activity; (3) Augustiniak had a position in HAMC; (4) Augustiniak committed or attempted to premeditated murder and kidnap Ms. Garcia as defined by Arizona State law; (5) Augustiniak committed or attempted to commit these acts specifically "for the purpose of gaining entrance to or maintaining or increasing [his] position in a racketeering enterprise", HAMC; and (6) the nexus to interstate commerce. 18 USC §1959(a); United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.1992). II. ADMISSION OF UNCHARGED CONDUCT

The government claims "in order to demonstrate the violent methods and means of the HAMC it is entitled to introduce evidence of charged and uncharged violent acts

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committed against rival motorcycle gangs and others as well as significant evidence that

Although the government did not move to introduce this evidence but just gave notice that it
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the HAMC sanctions and rewards such violent conduct by its members and associates."2 From that initial premise, the government concludes that Defendant Augustiniak's 1999 apartment assault, Defendant's 2001 bar assault and 2001

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apartment shooting are "inextricably intertwined" with the violent RICO enterprise charged in the indictment. Alternatively, it contends that this conduct is admissible pursuant to FRE 404(b) as it demonstrates that the "HAMC routinely employs excessive violence to intimidate any individual who challenges the HAMC for any reason and

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proves "the enterprise's motive, intent, knowledge, plan, modus operandi and similar scheme to use systematic violence to intimidate the community and rival gang members."3 The government cites the following facts in support of its proffer: In the 1999 apartment assault, Defendant Augustiniak has beaten Guerra after telling him that touching his vest was an insult to the HAMC; In the 2001 bar assault, Defendant was present with another HAMC member when he assaulted and seriously injured the female victim; and In the 2001 apartment shooting, Defendant openly displayed a sign exhibiting his HAMC membership and was quickly reinforced by other HAMC members after he shot his unarmed neighbor over a minor dispute. The government then surmises from these alleged facts, the HAMC must have known about Augustiniak's conduct, and therefore, the HAMC must have sanctioned Augustiniak's conduct by electing Augustiniak a HAMC member as a direct result of his conduct. To complete it circuitous argument, the government concludes because it "will present significant evidence that HAMC members were often rewarded with increased standing in the HAMC for violent attacks on rival motorcycle members and others," "Defendant's 1999 apartment assault, 2001 bar assault and 2001 apartment shooting constitutes evidence "inextricably intertwined" with the charged offenses with

will admit this evidence, the defendant will treat it as a motion. 2 Govt's Notice, p, 7 ll.6-9. 3 Govt.'s notice, p. 11, line 20-23; p.12, ll. 1-2.
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substantively alleged that the HAMC employs systematic violence against any individual who offends an HAMC member or associate.4 A fundamental premise for admission of any evidence is that the government must establish how evidence is relevant and it must "specifically, it must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence." FRE 401; United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir.1982); see also United States v. Arambula-Ruiz, 987 F.2d 599, 602-03 (9th Cir.1993) (quoting Mehrmanesh). The courts jealously guard admission of uncharged conduct as other crimes evidence "is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge." Michelson v. United States, 335 U.S. 469, 476 (1948). With respect to admission of evidence pursuant to FRE 404(b), the proffered evidence undoubtedly establishes that Augustiniak is a violent person. This type of evidence is strictly prohibited under FRE 404 which provides in part: (a) Character Evidence Generally.--Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of Accused.--Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a) (2), evidence of the same trait of character of the accused offered by the prosecution; (b) Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial,
The government has not revealed its "significant evidence" of HAMC rewards for violent conduct as of this date other than what has been alleged in the indictment. Defendants specifically request pretrial notice of the government's intent to introduce additional specific acts in accordance with FRE 404(b) or otherwise. If the government plans to spring this evidence upon the defense at trial without the court conducting the appropriate analysis of admissibility of this evidence, such action could cause a mistrial.
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or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Traditionally evidence of prior bad acts, when used to show a propensity to behave accordingly, is excluded at trial in order to "force the jury, as much as humanly possible, to put aside emotions and prejudices ... and decide if the prosecution has convinced them, beyond a reasonable doubt, that the defendant is guilty of the crime charged." McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir.1993). "The rule is designed to avoid a danger that the jury will punish the defendant for offenses other than those charged, or at least that it will convict when unsure of guilt, because it is convinced that the defendant is a bad man deserving of punishment." United States v. Brown, 880 F.2d 1012, 1014 (9th Cir.1989) (citation omitted). In United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985) the court succinctly summarized the reason for exclusion: [T]he underlying premise of our criminal justice system [is] that the defendant must be tried for what he did, not who he is. Under our system, [an] individual may be convicted only for the offense of which he is charged and not for other unrelated criminal acts which he may have committed. Therefore, the guilt or innocence of the accused must be established by evidence relevant to the particular offense being tried, not by showing that the defendant has engaged in other acts of wrongdoing. (Emphasis added). As a result, the Court fashioned a stringent test to avoid convictions based on other acts of the accused. Pursuant to FRE 404(b), evidence of other acts by a defendant is admissible when: (1) sufficient evidence exists for the jury to find that the defendant committed the other acts; (2) the other acts are introduced to prove a material issue in the case; (3) the other acts are not too remote in time; and (4) if admitted to prove intent or knowledge, the other acts are similar to the offense charged. United States v. Murillo, 255 F.3d 1169, 1175 (9th Cir.2001). Lastly, use of evidence pursuant to FRE 404(b), "must be narrowly circumscribed and limited" and "may not be

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introduced unless the Government establishes its relevance to an actual issue in the case." United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985) (emphasis added).
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While evidence of other acts need not meet the requirements of Rule 404(b) when such evidence is "inextricably intertwined" with the evidence concerning the crime with which the defendant is charged, United States v. Matthews, 240 F.3d 806, 817 (9th

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Cir.2001), the government must establish that the proffered evidence: (1) constitutes a part of the transaction that serves as the basis for the criminal charge, or (2) it helps the prosecutor "offer a coherent and comprehensible story regarding the commission of the crime." United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir.1995). In

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United States .v Hill, 953 F.2d 452, 457 (9th Cir. 1991), the defendant was charged with and convicted of conspiracy and attempt to possess with the intent to distribute cocaine. On appeal, the Court reversed the trial court's admission of defendant's use of small amounts of cocaine as prohibited 404(b) evidence and rejected the government's argument that this evidence is "inextricably intertwined with the evidence of the charged conspiracy conduct noting We caution that the doctrine allowing the introduction of "other crimes" evidence where it is "inextricably intertwined" with the charged crime, see United States v. Soliman, 813 F.2d 277, 279 (9th Cir.1987), should be applied narrowly to avoid the overly-broad, so-called "res gestae" exception. See 22 C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND PROCEDURE § 5329 at 449-50. As Wright and Graham recognized, the "inseparable crimes" doctrine "became completely perverted when courts began to use the infamous Latin tag 'res gestae' to describe the rule." Id. at 447. See also 1 WIGMORE, EVIDENCE § 218 at 720-21 (3d ed. 1940) (the "very looseness and obscurity" of the phrase res gestae "lend too many opportunities for its abuse"). Id at 457, footnote 1 (emphasis added). The Government has the burden of proving that the evidence meets all of the above

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requirements whether it seeks to admit the evidence as direct evidence of the charged offenses or pursuant to the cited 404(b) exceptions, See United States v. ArambulaRuiz, 987 F.2d 599, 602 (9th Cir.1993), it must be able to enunciate a specific purpose for admitting the other acts evidence (other than generally concluding it is "relevant')

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and there must be a sufficient contextual or substantive connection between the proffered evidence of other acts and the alleged crime to exempt it from a Rule 404(b) analysis. Lastly, the probative value of the evidence must outweigh its prejudicial effect

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under Rule 403. See United States v. Arambula-Ruiz, 987 F.2d 599,602 (9th Cir.1993). In this case, the defendant contests the admission of the noticed evidence as to inextricably intertwined evidence as the government fails to establish how this evidence falls within this narrow exception on either ground. As for admission pursuant to FRE

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404(b), the defendant contends that the proffered evidence fails to meet element #2, proof of a material point and #4, similarity to the charged offenses. Alternatively, the defendant contends the prejudicial effect of this evidence substantially outweighs any probative value. FRE 403. III. THE FACTS OF THE UNCHARGED CONDUCT The government's facts are taken from police reports and a fair reading of these reports indicates that the government manipulated these "facts" to connect these incidents as conduct on behalf or in furtherance of the HAMC or as sanctioned by the HAMC. As set forth below, it is clear from the reports that the alleged conduct are

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isolated events solely involving Augustiniak who happens to be a HAMC member and did not occur because of or as a direct result of his membership in the HAMC. The government has not shown any relationship between the "other acts" or extrinsic evidence and the charged conspiracy or that the other acts were part of a single

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criminal transaction alleged in the indictment. Furthermore, the government does not seriously contend that this evidence is necessary for its presentation of the instant charges. Without more, the evidence only establishes Defendant's propensity for

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violence prohibited by FRE 404 and does prove that he intended to participate in a RICO, RICO conspiracy, kidnapping, or murder. A. Mesa Apartment Assault

The government asserts that Aldo Guerra identified Augustiniak to the police and provided the police Augustiniak's HAMC prospect vest. The government alleges that "AUGUSTINIAK had told Guerra that touching his vest was an insult to the HAMC." 5 This is only a conclusion on the part of the police and it clear from the report is that Augustiniak was only upset with Guerra for giving the police his vest which contained his identification because Augustiniak did not want the police to be able to identify him by written documentation. The reports states that when the police came to Kevin's girlfriend's apartment (where Kevin, Amber Smith and Guerro were present) because of an incident involving a neighbor, Kevin initially refused to identify himself to the police. The Mesa police wrote "Kevin refused to identify himself and had gotten upset because Aldo had given Kevin's vest to the police in an attempt to identify him." Once the police had identified him [Augustiniak], they [the police] left." Exhibit 1, Mesa Police DR. 993010064, Officer M. Albachten, Page 5. After they left, Augustiniak assaulted Guerro. Guerro, in his written statement to the police, confirms the only reason that Kevin was upset was because Guerro gave the police his vest which contained Augustiniak's identification. Guerro writes "They [the police] asked him [Augustiniak] for his ID and he refused it. They asked to see his vest and [he] refused that. I was asked to get his vest and so I did." A few minutes later the police left without any incident. Exhibit 2, Handwritten statement of Aldo Guerra attached hereto and incorporated herein. Officer J. Cassese wrote "Aldo then Gave (sic) officers Kevins (sic) Hell's Angels vest

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where they found his ID. See Exhibit 3 attached hereto and incorporated herein.

Govt's Notice, p.3, ll.10.
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The statement that touching of a HAMC vests equates to an insult to a Hells Angel cited by the government is nothing more than a conclusion reached by Officer M. Wood and not a fact:

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Kevin refused to show the officers his identification and his Hell's Angles (sic) vest. Also got Kevin's Hells Angles (sic) Vest and gave it to the officers (A non Hell's Angel touching a Hell's Angel's vest is considered and (sic) insult to a Hells Angel)." (Parentheses in original report) See Exhibit 4, excerpt from DR993010064. M. Wood #12889. Review of the facts sans Officer's Woods unsupported conclusion, it is clear that Augustiniak was upset at Guerro only for providing his vest that had his identification in it to the police and did not have anything to do with the HAMC or Augustiniak's HAMC membership. B. The Bar Assault

The government asserts this incident is inextricably intertwined with the charged offenses because "a civilian witness informed police, that during the assault, Defendant asked another HAMC member to retrieve his gun, but that the other HAMC member failed to do so and also reported that "an HAMC member returned to the bar the next day to apologize to the bar owner."6 It also contends that the Defendant was present with another HAMC member when he assaulted and seriously injured the female victim supports a finding this incident is relevant to the charged offenses. Again, the government twists the facts to support its wrongful admission of these incidents. This incident allegedly happened on February 24, 2001 at which Shelly Jacobs and Augustiniak got in an argument at a bar concert and Augustiniak allegedly punched Ms. Jacobs. Ms. Jacobs, her minor daughter and minor friend were interviewed as well as Gene Garcia (security at the bar) and Carlos Avina. Prodded by the police, they were able to identify the jacket worn by the suspect as a "HELLS ANGELS" jacket. More importantly, none of the witnesses stated that any individuals with Augustiniak were members of the HAMC as stated by the government. Ms. Jacobs (the alleged victim) told the police:
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Govt. Notice, p.3, ll.22-25.
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She also remembers a friend of the suspect whom she describes as a White male; 27-30 YOA, 511, muscular build, with a bald head and goatee." She said that man was nice and tried to take the suspect away. See Exhibit 5, Mesa Police DR 01-030315, Officer M. Carleton, page 1 attached hereto and incorporated herein. Gene Garcia, (security personnel for the bar) was extensively interviewed on February 24, 2001. He also did not identify any person with Augustiniak as a Hells Angels but only described the suspect as seen with a "white male wearing a baseball cap and one white female with blond hair....last seen walking east on Rio Salado...," See Exhibit 6, DR 01-030315, Officer K.E. Betz, p. 1. None of the witnesses including Garcia reported to the police that Augustiniak requested anyone (much less a Hells Angels), "to get his gun." What was reported by the police on February 24, 2001 was that [Garcia] said he was about 30 feet away from the incident and "could not make out what was being said." "When he looked over he was the before mentioned male subject with both arms stretched out straight out in front of him. The subject was facing Jacobs and looked to be recoiling after pushing Jacobs. Jacobs was seen falling in the opposite direction from the male. The male suspect was escorted away from the immediate area by second male sand the woman. Garcia heard one of the males say something about having a gun. The males and female left the area. (Emphasis added). Exhibit 6, p.2

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The government's attempt to connect this directly to the HAMC is derived from
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another police interview with Gene Garcia on November 20, 2002, 21 months after the
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incident (and during the HAMC ATF investigation and Operation Dequiallo investigation
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of the HAMC). On November 20, 2002 Mesa Detective Carleton (the initial responding
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officer to the incident) decided to conduct a follow up interview with Mr. Garcia.
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Detective Carlton wrote:
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He [Garcia] also heard Kevin, who he described a prospect of the Hell's Angel's (because he only had the bottom rocker on his jacket), ask another fully patched member to "get his gun." Gene said he grabbed Kevin and quickly escorted him out of the venue. Gene saw the other Hell's Angel member shaking his head no
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at Kevin." ....After removing Kevin from the property he lost sight of where Kevin went." *** He told me he knew the suspect was a prospect of the Hell's Angels as he only had the bottom rocker on his jacket. Also he said a high ranking member of the Hell's Angels (unknown name) came in at a later day and apologized to the owner of Nita's Hideaway for the incident. During the apology the Hell's angel member said the person was only a "prospect" and had stepped out of line. Exhibit 7, DR 01-03315. Garcia's "new information" offered 21 months later, is inherently suspect and incredible when compared to his initial statements: He initially reported that the suspect belonged to the Hells Angel's motorcycle gang. 21 months later he describes the suspect as a "prospect" specifically because he only had the bottom rocker on his jacket. He initially reported that he could not hear anything and that the suspect was escorted off the premises by his friends. 21 months later he reports that he could hear the suspect specifically say "get his gun" and recalls the full patched member shaking his head no at Kevin. He never initially described any person with the suspect as a Hells Angel by clothing or otherwise. 21 months later he states that the suspect was with a "full patched member." He initially reported that that the suspect was escorted away by the other male. 21 months later he claims that he "grabbed Kevin and quickly escorted him out of the venue." It is abundantly clear that Garcia's new information is derived not from what he

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saw or heard but what he learned from the police and others at some unknown time after February 24, 2001 which is simply inadmissible hearsay The government's weak attempt to connect this incident to HAMC as a uncharged racketeering act is reprehensible as it is equally undeniable that the HAMC did not want to participate in Augustiniak's conduct and did not sanction his conduct evidenced by the unknown "member's" actions of refusing to assist Augustiniak and the subsequent apology to the

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owner of the establishment. The evidence establishes HAMC does not sanction this type of violent conduct by its members and did not approve of it. C. Tempe Apartment Shooting

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The government contends that the Tempe Apartment shooting is admissible because: 1) after the shooting, the Tempe Officers were "greeted by HAMC Mesa Chapters Jack Perkins and Gary Dunham"; 2) Dunham was attired in a white HAMC tee shirt; 3) Perkins and Dunham told Tempe police they were present at the scene to offer Defendant "moral support" and 4) Near Defendant's apartment was a sign that said "Support Your Local Hells Angels, Mesa."7 Once again, the government twists the facts and provides its own conclusions solely to convince this court that this incident is sanctioned by the HAMC. Defendant does not deny that there was a sign. However, the sign on the door is simply a sign and is an expression of support. The sign, by itself does not advocate violence nor may it lead a reasonable person to conclude or infer that this sign alone means that the HAMC: 1) instructed Augustiniak to commit violent acts on its behalf; 2) sanctioned violent conduct by Augustiniak on its behalf or in furtherance of its organization; 3) caused Augustiniak to commit violent conduct for or on behalf of its organization or to further or maintain his position in the HAMC. Many individuals in this free society post signs display bumpers stickers or wear tee shirts that convey what they believe or what they support. A shirt or sign cannot be construed as support for violent conduct nor can it create an inference that the individual that displayed an organizational sign or wore an organizational tee shirt received the organization's approval or acquiescence at to their personal and individual conduct. If that were the case, many of us would be in prison right now for simply for wearing a tee shirt or displaying a sign. As for other members showing up at the apartment after the shooting was completed, the government fails to inform the court of the reason behind their presence.

Govt's notice, p.4, ll.7-11.
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Amber Smith, Augustiniak's girlfriend who was present at the apartment, told the police that Augustiniak picked up the phone (after the shooting) and called an unknown person. Smith stated that she heard Augustiniak say "Something fucked up happened, the cops are coming. I need you to be with Amber." Exhibit 8, DR 01-088928, Detective Hoffman, p. 3 and Exhibit 9, handwritten statement of Smith, p.3. Augustiniak knew the police were coming and he would be arrested. Thus, the only reason Augustiniak called his friends was to take care of girlfriend Amber. There is no absolutely evidence as the government claims that these HAMC members showed up after the incident as "reinforcement." The only thing Gary Dunham did was to get on the phone with Augustiniak prior to him coming out of his apartment. More importantly there is no evidence that any of the HAMC members present during the assault, knew about the assault prior to it taking place, assisted or encourage the assault or attempted to assist Augustiniak in any way, after the assault. Exhibit 10, DR 01-088928, Officer Roesch, page 2. Once again, this is an incident committed by individual who happens to be HAMC member as opposed to being committed on behalf or in furtherance of the HAMC despite the government's claims otherwise. IV. THE PROFFERED EVIDENCE IS NOT INEXTRICABLY INTERTWINED WITH THE INSTANT OFFENSES In addition to misstating the facts of the prior incidents, the government has not articulated how this evidence (1) constitutes a part of the transaction that serves as the basis for the criminal charge i.e., United States v. Williams, 989 F.2d 1061, 1070 (9th Cir.1993), [ contemporaneous sales of cocaine and crank by the defendant were inextricably intertwined with the crime with which the defendant was charged: the sale of cocaine] or; (2) it helps the prosecutor "offer a coherent and comprehensible story regarding the commission of the crime. As noted by the Court in United States v. Vizcarra-Martinez 66 F.3d 1006, 1013 (9thCir, 1995):

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Second, we have allowed "other act" evidence to be admitted when it was necessary to do so in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime; it is obviously necessary in certain cases for the government to explain either the circumstances under which particular evidence was obtained or the events surrounding the commission of the crime. This exception to Rule 404(b) is most often invoked in cases in which the defendant is charged with being a felon in possession of a firearm. For example, in United States v. Daly, 974 F.2d 1215, 1216 (9th Cir.1992), evidence regarding a shoot-out was considered to be "inextricably intertwined" with the charge that the defendant was a felon in possession of a firearm. We based our holding upon the fact that "evidence regarding the shoot-out was necessary to put [the defendant's] illegal conduct into context and to rebut his claims of self defense." Id. Recognizing the difficulty that the prosecution would encounter in proving that the defendant possessed a gun and in rebutting his proffered defense without relating the facts surrounding the commission of the crime, we observed that "the prosecution is not restricted to proving in a vacuum the offense of possession of a firearm by a felon.... '[The jury] cannot be expected to make its decision in a void--without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.' " Id. (quoting United States v. Moore, 735 F.2d 289, 292 (8th Cir.1984)). The government string cites cases allowing uncharged evidence in cases with

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RICO and RICO related charges without any substantive analysis of the basis for admission. In the most of the cited cases, the government specifically articulated why and how the proffered evidence was relevant and intrinsic to the circumstances of the crimes charged. In United States v Williams, 291 F.2d 1180, 1189 (9th Cir. 2002), the defendant was charged with 8 counts of inducing and transporting a minor in interstate commerce with the intent that the minor engage in prostitution as well as interstate travel in aid of racketeering. The court allowed evidence of violent assaults by the defendant as integral part of the transactions that constituted the crimes charged. The court found that the assaults were part of a single criminal episode and "the means by which the Defendant maintained the control over his [minor] victims" as well as evidence that rebutted his defense that his victims gleefully and voluntarily traveled with him. Id.at 1189. In United States v Serang, 156 F.2d 910 (9th Cir. 1998), the defendant was

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charged with among other things, conspiracy to commit arson and arson. The court allowed the admission of a conspirator's prior attempts to set fire to the same restaurant at the defendant's request. The Court found that this testimony was inextricably

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intertwined with the charged offenses because it "explained both the nature of their conspiratorial relationship, and how and why the fire was set in the manner that it was." Id. 915. In United States v Santiago, 46 F.3d 885, 888(9th Cir. 1995), the defendant was charged with first degree murder of a fellow inmate. The Court allowed as

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inextricably intertwined "[e]vidence of gang links to the procurement of the murder weapon and to the planning of the crime [because it] relates directly to the crime for which Santiago was indicted." Id. at 888. In United States v Rolett, 151 F.3d 787 (8th Circuit), the defendant was charged with conspiracy to commit a murder in aid of racketeering and murder in aid of racketeering. The parties stipulated that a racketeering criminal enterprise directed by Davidson existed. The government was allowed to introduce direct evidence that defendant and another person had previously engaged with Davidson in a chop-shop operation; Defendant was stealing materials to further the Davidson enterprise that provided the consideration for the conspiracy to

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commit murder, as well as to establish Defendant's relationship with Davidson enterprise. In United States v Gray, 292 F. Supp 2d 71 (DC 2003), the defendants were on trial for the murder of thirty one people and eleven attempted murders. Gray was also on trial as the court described "for leading decade-long narcotics and Rico

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conspiracies." Id. at 77. The government offered specific detailed facts of the organization's violent conduct to maintain its drug territory in a particular neighborhood, the relationship between the members of the organization and Gray's leadership, power and control over his drug organization and members that he himself, maintained by

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extreme violence. The government offered this evidence as direct and rebuttal proof of the criminal charges in the indictment. Unlike Rolett and Gray, the government has not established a sufficient link that any of these prior incidents are part of a single criminal

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transaction relating to or connected to the HAMC alleged as part of the indictment. None of Augustiniak's prior conduct will establish the existence, nature or extent of the enterprise, the existence, nature or extent of racketeering activity or that Augustiniak committed the acts to further or maintain his membership in the HAMC. Further, there is

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no absolutely no evidence that Augustiniak was rewarded by the HAMC for his prior conduct or that his conduct sanctioned by the HAMC and the government's proffer on this basis must fail. In United States v Vizcarra-Martinez, 66 F.3d 1006,1013 (9th Cir. 1995), the court reversed on the trial court's error in admitting evidence of Defendant's drug use to prove that he conspired to possess and possessed hydriodic acid with knowledge that it would be used to manufacture methamphetamine. The Court held:

It is clear that the evidence in this case does not fall within either of these exceptions [for admission of other act evidence]. Coincidence in time is insufficient. The mere fact that a defendant is in possession of a small amount of a prohibited narcotic substance at the time he commits a crime is not enough to support the introduction of the evidence of drug usage. There must be a sufficient contextual or substantive connection between the proffered evidence and the alleged crime to justify exempting the evidence from the strictures of Rule 404(b). Here, there was no such relationship. First, the defendant's personal use of methamphetamine was, unquestionably, not a part of the transaction with which he was charged--possession of hydriodic acid with knowledge that it would be used to manufacture methamphetamine. The prosecution presented absolutely no evidence that the methamphetamine in question was obtained from a member of the conspiracy or that VizcarraMartinez had been involved in its manufacture or distribution. Second, it is clear that the prosecution would encounter little difficulty in presenting the evidence relevant to its case against the defendant--his possession of hydriodic acid and the circumstances surrounding the commission of that crime-- without offering into evidence the personal-use amount of methamphetamine the police discovered in the defendant's pocket upon arrest. The methamphetamine
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found in the defendant's pocket had nothing to do with the incidents leading to the search, nor did it have any bearing upon the commission of the crime. Thus, we reject the government's contention that the contested evidence was so inextricably intertwined with the crime as to fall outside the scope of Rule 404(b).v Id at 1013 (Emphasis added). Viewing the facts favorable to the government, (without Officer's Woods conclusion), it is clear that none of these facts or circumstances of the prior incidents are even remotely connected to the HAMC much less a RICO enterprise and would not provide the jury with any additional knowledge other than defendant is a violent person

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with respect to the charged conduct. The prior conduct has no bearing upon the commission of the crimes alleged in the indictment as the government cannot coherently connect the HAMC to these incidents other than for the fact that Augustiniak is a HAMC member. The government has not articulated its evidentiary hypothesis for

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the admission of this evidence because it cannot factually show that the HAMC as a criminal enterprise was involved in or sanctioned any of these incidents or that Augustiniak committed these crimes to further or maintain his status in the HAMC. Without more evidence of a direct connection with the HAMC, admission of any of the above incidents involving Augustiniak is not inextricably intertwined with the charged

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offenses to show that the alleged HAMC RICO enterprise "preserves, protects, or promises a climate of fear through violence and threats of violence." V. THE PROFFERED EVIDENCE IS NOT ADMISSIBLE TO PROVE MOTIVE, INTENT, KNOWLEDGE, PLAN, MODUS OPERANDI OR SIMILAR SCHEME The government contends without any specificity that the proffered evidence is relevant to prove HAMC's motive, intent, knowledge, plan, modus operandi, or similar scheme.8 It generally asserts that the above incidents demonstrate the HAMC's routine

The government offers no basis for admission of the other act evidence to prove a plan or similar scheme. Therefore the defense will not address those grounds.
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employment of excessive violence to "intimidate any individual who challenges the HAMC for any reason."9 First, where the evidence is introduced to prove knowledge or intent, admissibility requires "a logical connection between the knowledge gained as a result of the commission of the prior act and the knowledge at issue in the charged act." "[S]imilarity is necessary to indicate knowledge and intent, because it can furnish the link between knowledge gained in the prior act and the claimed ignorance of some fact in the offense charged." United States v. Mayans, 17 F.3d 1174 (9th Cir.1994). See United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.1992) (similarity of the prior acts to the charged offenses is required because "if the prior act is not similar, it does not tell the jury anything about what the defendant intended to do in his later action"). In this case, government alleges that Augustiniak kidnapped and stabbed Ms. Garcia to death. In the underlying cases, Defendant punched or shot the victim. The cases bear no similarity with respect to Defendant's knowledge gained as result of the prior assaults and the knowledge or intent of the charges in this indictment. The government fails to explain how the evidence relating to these incidents is similar enough to establish Augustiniak's knowledge and intent for the instant charges. In addition to failing to establish any HAMC connection to these incidents other than Augustiniak's HAMC membership, the government utterly fails to "articulate precisely the evidential hypothesis" about what could logically be inferred from Augustiniak's involvement in these incidents prove a material point in this case. In this context, Augustiniak punching or shooting someone is not sufficiently similar to "furnish the link" to the crime charged -stabbing and kidnapping Garcia specifically "for the purpose of gaining entrance to or maintaining or increasing [his] position in a racketeering enterprise" the HAMC.

The government claims that this evidence will be introduced to demonstrate the HAMC's use of excessive violence (as opposed to Augustiniak's use of excessive violence), rewards for excessive violence and to maintain their ability to intimidate rival motorcycle gang members as well as other victims and witnesses of their criminal activities. The practical effect of this evidence is to secure a conviction against Augustiniak (not the HAMC) of murder and kidnapping and a limiting instruction will not prevent the jury from making that inference.
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Second, the proffered evidence does not establish or tend to prove defendant's motive for committing the charged act. The government generally asserts that the "apparent motive" in this case is Garcia's "offensive comments about the HAMC."10 There is no evidence that Augustiniak's motive for the prior assaults was based on insults to the HAMC, despite the government's obvious manipulation of the facts. The most the evidence shows is that Augustiniak's is easily angered and physically responds to situations that upset him. This evidence does not establish, prove, or even allow an inference that the HAMC routinely employs excessive violence. In People of Territory of Guam v. Shymanovitz, 157 F.3d 1154, 1159 (9th Cir. 1998), the court reversed the trial court's admission of testimony regarding contents of sexually explicit gay magazines that involved multiple charges of in a sexual conduct with children. The government argued that this evidence was proper in order to show that the defendant intentionally engaged in sexual contact for the purpose of sexual arousal or gratification." The court found that this evidence was immaterial to the proof of any element of the charged offenses and at the most constituted propensity evidence prohibited by FRE 404(b). Id. 1158-1159. The court further rejected the government's argument that it proved defendant's motive (or intent) stating: Although the government's brief does not acknowledge a difference between the terms "intent" and "motive," its arguments are inapplicable to the motive exception under Rule 404(b). We have long held that evidence of motive requires more than a general propensity to commit a type of crime but rather a motive to commit the crime charged against the particular victim. See United States v. Brown, 880 F.2d 1012, 1015 (9th Cir.1989) (finding evidence of "thrill from creating violence" to be inadmissible as motive evidence for murder charge); cf. United States v. Bradshaw, 690 F.2d 704, 708-09 (9th Cir.1982) (finding evidence of prior sexual acts between victim and defendant to be admissible as motive evidence for kidnapping). Id at 1158, FN 6. Lastly, the government offers no specific facts to establish that the prior bad acts constitute relevant evidence of the HAMC'S or Defendant's modus operandi or its "particular way of doing things," other than to summarily conclude that each prior bad

Govt's Notice, p.7, ll.25-26.
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act demonstrates the HAMC's modus operandi." That is not enough for admission of this evidence. As noted by Shymanovitz "Such use of modus operandi evidence is rare, and the similarities must be specific and detailed and clearly set the particular offense apart from the general body of such offenses. See McCormick on Evidence § 190 at 801-803 (4th ed.1992) (noting that modus operandi evidence must involve acts by the defendant that are "so nearly identical in method as to earmark [the charged offense] as the handiwork of the accused" and that are "so unusual and distinctive as to be like a signature"). Id at 1158, FT. 9. As the government provides no specific facts of the HAMC's modus operandi or how Augustiniak's prior acts are identical in method, the evidence is not admissible on this ground. VI. THE PROBATIVE VALUE OF THE PROFFERED EVIDENCE DOES NOT SUBSTANTIALLY OUTWEIGH ITS PREJUDICIAL EFFECTS

The defendant fails to see how any of this proffered evidence is relevant as none of
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it proves a material issue of the charged offenses. At the most, the proffered evidence
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shows is that Augustiniak as an individual is a violent person, clearly prohibited by FRE
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404(B). Without a more specific basis and logical connection from the government, if
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this evidence is admitted, the government will prejudice the jury and obtain a conviction
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on bad character alone. This type of propensity evidence is abhorred by our justice
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system. Even if slightly relevant, the court should exclude this evidence as it will only
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prejudiced the jury to convict Augustiniak on the basis that he is a bad person, not
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because the government proved the instant charges.
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VII.
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EVIDENCE OF STATUS OR IDENTITY

The government states it will introduce as part of its case in chief, Defendant Augustiniak's "status" with the HAMC with the following evidence: On December 6, 1999 Augustiniak was stopped by the Phoenix Police for a

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traffic violation. He was wearing a Hells Angels shirt and told the investigating officer he was a pledge for the HAMC;

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On January 27, 2000 Augustiniak was stopped by the Tempe Police for driving on a suspended license and he was wearing his HAMC Mesa Prospect vest;

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November 30, 2000 a Mesa police detective identifies Augustiniak as a full patch member of the HAMC Mesa Chapter; On December 23, 2000 Augustiniak is observed by Tempe police wearing a full patch HAMC Mesa jacket;

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On numerous occasions after that date, Augustiniak was observed by other law enforcement members as well as undercover operative wearing HAMC colors; and.11 Defendant admitted at his sentencing for the Tempe Apartment shooting that he was a HAMC member of the Mesa Chapter for two years.12 The defense objects to the admission of any of the above stops or observations. First, the government has not disclosed any reports relating to the above stops or observations by police agencies or federal agents. The defense cannot effectively object to this evidence without specifics as to underlying facts, the alleged "numerous

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occasions" and the context of "observations" by law enforcement. The defense requests immediate disclosure and the opportunity to review the reports before this Court considers admission of this evidence. Second, even if relevant, the admission of the facts and circumstances of the

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above alleged events will only serve to prejudice the jury against Augustiniak by the inference that he has been involved with and observed by the police for many years.

Govt's Notice (Dkt. 975), p 2, ll.18-28. Govt. Notice, p.4, ll.14-15.
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More importantly, Augustiniak's HAMC membership is not a fact in dispute. He does not deny nor will he deny that his status within the HAMC as a member only, as established by his court admission of membership. The government's proffered

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evidence does not prove that Augustiniak holds any other rank (other than member) within HAMC and coupled with Augustiniak's stipulation that he is a HAMC member, any probative value is outweighed by the prejudice to Augustiniak. FRE 403 VIII. CONCLUSION

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The Court must not allow the government obvious attempt to circumvent its burden of proof in this manner or attempt to convict any of these defendants on questionable character or propensity evidence. The government must be held to its burden-- it must prove beyond a reasonable doubt with specific and concrete evidence, that Mr. Augustiniak is guilty of the charges alleged in the indictment as opposed to a conviction based solely on remote, unconnected, and highly prejudicial bad character evidence.13 Based on the above grounds, Defendant requests that the Court deny the government's motion to introduce the proffered evidence. RESPECTFULLY SUBMITTED on January 17, 2006.

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PATRICIA A. GITRE PLC

/s/Patricia A. Gitre Attorney for Defendant Kevin Augustiniak

If the government is provided another opportunity to articulate with specificity its purpose for admission of this evidence, the defendant requests an opportunity to respond in writing to any additional argument by the government.
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ORIGINAL filed electronically and copies of the foregoing Delivered via electronically or by email on 01/17/2006 Clerk of the Court Judge David G. Campbell Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003 Tim Duax and Keith Vercauteran Government counsel All Defense Counsel /s/ Patricia A. Gitre

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