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

DAVID Z. CHESNOFF, ESQ. GOODMAN & CHESNOFF 520 South Fourth Street Las Vegas, Nevada 89101 Attorney for Defendant CALVIN B. SCHAEFER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ***** ) ) Plaintiff, ) ) vs. ) ) CALVIN B. SCHAEFER, et. al., ) ) Defendants. ) ___________________________________) UNITED STATES OF AMERICA, No. 03-1167-PHX-DGC Hearing Date: Hearing Time: DEFENDANT SCHAEFER'S MOTION TO DISMISS COUNTS ONE AND TWO OF THE SUPERSEDING INDICTMENT

COMES NOW, CALVIN B. SCHAEFER, by and through his attorney, DAVID Z. CHESNOFF, ESQ., and hereby Moves this Honorable Court to Dismiss Counts One and Two of the Indictment. This Motion is made and based upon the attached Memorandum of Points and /// /// /// ///
Case No. 03-1167-PHX-DGC Memorandum of Points and Authorities in Support of Motion to Dismiss Counts One and Two of the Superseding Indictment

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Authorities and the papers and pleadings on file herein. Dated: December 13, 2005. Respectfully Submitted: GOODMAN & CHESNOFF _/s/ David Z. Chesnoff___ DAVID Z. CHESNOFF, ESQ. 520 South Fourth Street Las Vegas, Nevada 89101 Attorney for Defendant: CALVIN B. SCHAEFER

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Case No. 03-1167-PHX-DGC Memorandum of Points and Authorities in Support of Motion to Dismiss Counts One and Two of the Superseding Indictment

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DAVID Z. CHESNOFF, Esq. GOODMAN & CHESNOFF Nevada State Bar No. 2292 520 South Fourth Street Las Vegas, Nevada 89101-6593 Telephone: (702)384-5563 Attorney for Defendant CALVIN B. SCHAEFER

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ******

UNITED STATES OF AMERICA, Plaintiff, vs. CALVIN B. SCHAEFER, et. al., Defendants.

) ) ) ) ) ) ) ) ) )

No. CR-03-1167-PHX-DGC Hearing Date: Hearing Time:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS COUNTS ONE AND TWO OF THE SUPERSEDING INDICTMENT A. Counts One And Two Must Allege a "Pattern of Racketeering Activity," A Necessary Element of a RICO Offense

Count One of the Superseding Indictment charges Schaefer and fifteen other defendants with participating in a racketeering enterprise through a pattern of racketeering activity in violation of 18 U.S.C. section 1962(c). Count Two of the Superseding Indictment incorporates the general
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allegations made in Count One, but charges a RICO conspiracy in violation of 18 U.S.C. section 1962(d). In order to allege and prove a substantive RICO offense, Count One, or a RICO conspiracy offense, Count Two, the indictment must allege and the government must prove four different elements. The indictment must allege and the government must prove: "(1) the existence of an enterprise which affects interstate or foreign commerce; (2) that the defendant 'associated with' the enterprise; (3) that the defendant participated in the conduct of the enterprise's affairs; and (4) that the participation was through a pattern of racketeering activity..." United States v. Phillips, 664 F.2d 971, 1011 (5th Cir. 1981). A "pattern of racketeering activity" must consist of at least two acts of racketeering activity. Sedima, S.P.R.L. v. Imrex Co. Inc., 473 U.S. 479, 496 fn. 14. (1985). More importantly, the "pattern of racketeering activity" requires a "showing that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity." H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239 (1989); see also Ikuno v. Yip, 912 F. 2d 306, 309 (9th Cir. 1990). Indeed, the Ninth Circuit Model Criminal Jury Instruction, Instruction 8.126 - Pattern of Racketeering Activity, states in its entirety:

A pattern of racketeering activity is at least two racketeering acts that have a relationship to each other and they amount to or pose a threat of continued criminal activity. Conduct forms a pattern if it consists of criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics. Sporadic activity or widely separated and isolated criminal

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Case No. 03-1167-PHX-DGC Memorandum of Points and Authorities in Support of Motion to Dismiss Counts One and Two of the Superseding Indictment

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activity does not form a pattern of racketeering activity. Subsection E, Paragraphs 6 through 23 of the Indictment set forth the alleged "Pattern of Racketeering Activity" for the racketeering conspiracy offense alleged as Count One. Count Two does not incorporate by reference the "pattern of racketeering activity" set forth in Count One. Instead, it alleges as a "pattern of racketeering activity" act involving murder, "acts involving the distribution of controlled substances" and acts "involving witness tampering." Schaefer contends herein that both Counts One and Two of the Superseding Indictment fail to allege any relationship between the alleged racketeering acts. Put another way, Counts One and Two fail to allege "conduct that forms a pattern...of criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission..." A count of an indictment must be dismissed if the court finds "that the indictment does not contain the elements of the offense intended to be charged." United States v. Campbell, 685 F.2d 131, 132 (5th Cir. 1982); United States v. Uni Oil, Inc., 646 F.2d 946, 953 (5th Cir. 1981). An indictment that fails to allege an essential element of the charged offense is "insufficient on its face" and cannot be cured by a bill of particulars or by instructions to the jury. United States v. Hooker, 841 F.2d 1225, 1227 (4th Cir. 1988) (en banc): RICO charge failed to allege that the enterprise had an effect on interstate commerce. Rule 12(b) of the Federal Rules of Criminal Procedure provides that a defendant may raise objections to defects in an indictment at any time during the proceedings including prior to trial. When an indictment fails to state an offense the federal courts lack subject matter jurisdiction and must, as a result, dismiss the indictment. United States v. Marcello, 876 F.2d 1147, 1152 (5th Cir. 1989); United States v. Pupo, 841 F.2d 1235,

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1239 (4th Cir. 1988)(en banc); United States v. Broncheau, 597 F.2d 1260, 1266 fn.1 (9th Cir. 1979). Schaefer contends that Counts One and Two of the Superseding Indictment fail to state a necessary element of the alleged racketeering offenses. Both counts fail to state a "pattern of racketeering activity." As a result, Counts One and Two of the Superseding Indictment must be dismissed against Defendant Schaefer. B. Count One Fails to Allege a Pattern of Racketeering Activity

Count One alleges fifteen different racketeering acts which supposedly form the pattern of racketeering activity. Any reasonable review of these fifteen racketeering acts plainly shows that they utterly fail to allege a pattern that has the same or similar purposes, results, participants, victims or methods of commission. Racketeering Act Number 1, paragraph 7, alleges an attempt to murder members of the Mongols outlaw motorcycle club. This involves only Defendants Smith, Walters, and Schaefer. The alleged attempted murder took place on April 27, 2002 at the Harrah's casino in Laughlin, Nevada. In fact, the "attempted murder" was nothing more than a brawl inside the casino when members of the Mongols encircled, then attacked, members of the Hell's Angels. Forty-four members of the Hell's Angels, including defendants Smith, Schaefer, and Walters herein, are charged with violence in aid of racketeering in the District of Nevada as a result of that brawl. The remaining defendants in this case were not charged in the Laughlin incident. No Hell's Angel killed anyone. Racketeering Act Number 2, paragraph 8, alleges a conspiracy to murder Mongols over a

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year after the Laughlin incident. This conspiracy is alleged to have occurred between June 21 and June 26, 2003 in the District of Arizona. The only named defendant involved in the conspiracy is Walters. Other than the fact that Walters was allegedly involved in both the Laughlin brawl in April 2002 and this conspiracy in 2003, there is no apparent connection between the two alleged racketeering acts. Racketeering Act Number 3, paragraph 9, alleges that between December 10, 2002 and January 29, 2003, defendant Johnson threatened a witness, Rudolf Kramer. There is no apparent connection between this alleged witness tampering and the brawl with the Mongols in Laughlin in April, 2002, and Walters alleged conspiracy to murder Mongols in June, 2003. Racketeering Acts Number 4 through Number 14 all involve the alleged distribution of methamphetamine and are broken down by defendant and date. All of the distributions, except Racketeering Acts Number 13 and 14, involved personal use amounts or "less than 5 grams." The Racketeering Acts were alleged as follows: Racketeering Act 4(a) 4(b) 5 6 7 8 9 conspiracy to distribute distribution distribution distribution distribution distribution distribution Date February 1, 2003 February 1, 2003 February 10, 2003 February 12, 2003 February 12, 2003 February 14, 2003 February 15, 2003 Defendant(s) Smith, Denbestern Denbesten Murphy Schaefer Denbesten Murphy Jaime

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10 11 12 13 14

distribution distribution distribution distribution distribution

February 18, 2003 April 1, 2003 April 10, 2003 April 28, 2003 May 16, 2003

Schaefer Dam Ward Ward Ward

Racketeering Act Number 15 alleged that defendant Dam possessed marijuana with the intent to distribute on December 12, 1999. Racketeering Act 16 alleged that defendant Johnston conspired with unknown others to distribute methamphetamine and marijuana in August, 2002. On its face it is clear that Count One fails to allege a pattern of racketeering acts. Racketeering Acts Number 1 and 2 concern an ongoing dispute with the Mongols, a rival motorcycle club. Racketeering Act Number 4 through 12 concern the distribution of personal use amounts of methamphetamine, mostly in a three week period in February, 2003. What is the connection between the Laughlin brawl in April 2002, Racketeering Act Number 1, and the distribution of personal use amounts of methamphetamine in February, 2003? There is no similar purpose, result, participants, victims or methods of commission between these alleged racketeering acts. Except for Schaefer, none of the participants in the brawl with the Mongols is involved in the methamphetamine distribution. Other defendants, like Murphy, and Denbestern, were allegedly involved solely in the distribution of personal use quantities of methamphetamine, but had nothing to do with the alleged brawl or conspiracy to murder Mongols or any other alleged racketeering act. No single defendant is a participant in all of the alleged racketeering acts and the alleged racketeering acts do not have "the same or similar" participants. The alleged the racketeering acts

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are separated by months, and in some cases, years. There is no common purpose. For instance, there is no connection of any kind between the April 27, 2002 brawl in Laughlin with the Mongols and distribution of personal use amounts of methamphetamine by Murphy in February, 2003. What Count One actually alleged is that some members of the Hell's Angels Motorcycle Club committed a number of unrelated criminal offenses over a period of several years. The only common thread is that all of the defendants were members of the Hell's Angels Motorcycle Club. That is not enough to establish a pattern of racketeering activity. As the last line of the Ninth Circuit pattern instruction states: "Sporadic activity or widely separated and isolated criminal activity does not form a pattern of racketeering activity." Count One alleges only "isolated

criminal activity" over a span of several years. The alleged criminal activities are not "related" in any sense. Not only must there be a relationship between the various racketeering acts, but such a relationship must be actually alleged in the indictment. Count One does not allege that the racketeering acts are related and, indeed, they are not related. As a result, Count One must be dismissed. C. Count Two Fails to Allege A Pattern of Racketeering Activity

Count Two alleges a conspiracy "to conduct and participate, directly and indirectly, in the conduct of the affairs of that enterprise through a pattern of racketeering activity. . ." Unlike the numbered racketeering acts in Count One, in Count Two the Superseding Indictment alleges that the "pattern of racketeering activity" consists of the following: "acts involving murder, in violation of Ariz. Rev. Stat. sections 13-1104, 13-1003 and 13-1001, and acts involving the distribution of controlled substances, including methamphetamine and marijuana, in violation of 21 U.S.C.

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sections 841(a)(1) and 846, and acts indictable under 18 U.S.C. section 1512 involving witness tampering." No further description of the alleged racketeering acts appears anywhere in Count Two. There is no description of what "acts involving murder" are alleged. There is no description of what "acts involving the distribution of controlled substances" are alleged. There is no description of what "acts. . .involving witness tampering" are alleged. The numbered racketeering acts alleged in Count One are not incorporated by reference into Count Two. Thus, unlike Count One, the racketeering acts alleged in Count Two are not identified by date, defendant, victim, incident or any other identifying fact. Presumably, although there is no way of knowing this for sure, the government will not allege at trial that the racketeering acts alleged in Count Two as "acts involving murder" are those described in Count Three of the Superseding Indictment. Count Three alleges that defendants Eischeid and Augustiniak caused the death of Cynthia Garcia on October 27, 2001. However, Eischeid and Augustiniak are not named defendants in the RICO conspiracy charged as Count Two. Therefore, the alleged acts involving the murder of Garcia charged in Count Three apparently have no connection with the "acts involving murder" alleged as racketeering acts in Count Two. However, no other "acts involving murder" are alleged anywhere else in the indictment. Thus, what "acts involving murder" are alleged as the racketeering acts in Count Two is a complete mystery. Presumably, the alleged racketeering "acts involving the distribution of controlled substances, including methamphetamine and marijuana" mentioned in Count Two are the same a

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alleged in Count One. However, at no time does Count Two incorporate by reference Racketeering Acts Number 4 through 14 of Count One. As described above, these alleged racketeering acts in Count One for the most part involve the distribution of personal use amounts of methamphetamine in February and April 2003. The only other racketeering acts mentioned in Count Two are "acts indictable under 18 U.S.C. section 1512 involving witness tampering." Again, this presumably refers to Racketeering Act Number 3 of Count One which alleged that defendant Johnston threatened a witness between December 10, 2002 and January 29, 2003. However, like the racketeering acts involving controlled substances, Count Two does not incorporate by reference Racketeering Act Number 3 of Count One. Thus, it cannot be said with certainty what "acts . . . involving witness tampering" are alleged in Count Two. Given the extremely vague allegations of racketeering acts in Count Two, it is impossible to say that these acts form a "pattern of racketeering activity" or that such a pattern is alleged. What is the relationship between the unknown "acts involving murder" and the "acts involving the distribution of . . . marijuana? The Ninth Circuit pattern instruction states that conduct forms a pattern "if it consists of criminal acts which have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics." Where is the similar purpose, results, participants, victims, method of commission, or other interrelated distinguishing characteristics between the alleged racketeering acts in Count Two? Not only do such "interrelated distinguishing characteristics" not exist, they are not alleged anywhere in Count Two. As a result, Count Two fails to state an offense and must

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be dismissed. D. Conclusion

Counts One and Two of the Superseding Indictment must be dismissed as they fail to sufficiently allege a pattern of racketeering activity, a necessary element of a racketeering offense under 18 U.S.C. section 1962. DATED: December 13, 2005. Respectfully submitted by,

/s/ David Z. Chesnoff DAVID Z. CHESNOFF Attorney for Defendant CALVIN B. SCHAEFER

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