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

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Brian F. Russo (018594) 111 West Monroe Street Suite 1212 Phoenix, Arizona 85003 (602) 340-1133 telephone (602) 258-9179 facsimile e-mail: [email protected] Attorney for Defendant Robert Johnston Jr. IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT J. JOHNSTON, JR. (1), Defendant. ) Case No. CR 03-1167 PHX-DGC ) ) MOTION TO SUPPRESS ) ) ) ) ) ) )

COMES NOW the Defendant, by and through counsel undersigned, and hereby moves to suppress all evidence obtained as a result of the execution of a search warrant on the premises at 2824 N. Cholla, Chandler, Arizona, Defendant's residence. Defendant alleges that the federal agent who authored the affidavit in support of the search warrant herein misled the issuing judge by intentionally, knowingly or recklessly including misrepresentations of fact and concealing other material facts that were adverse to the government's position. Defendant asserts that the search warrant affidavit, when redacted to show the true facts, fails to establish probable cause. Defendant moves to suppress all evidence obtained as a result of the search warrant. This motion is supported by the attached Memoranda of Points and Authorities incorporated by reference herein.
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RESPECTFULLY SUBMITTED this 13th day of December, 2005. /s/Brian F. Russo Brian Russo Attorney for Defendant

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MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF THE CASE: In December 2001 the ATF began an investigation of Hell's Angels groups in Arizona as well as in other states. Pursuant to this investigation the ATF recruited confidential informants and witnesses and posed undercover officers as motorcycle club members. This investigation continued until July 2003 when the ATF filed affidavits and obtained search warrants on numerous residences of Hell's Angels members throughout the state of Arizona. The focus of the ATF effort was to purchase guns and drugs from Hell's Angels members. Over the course of a year and a half undercover agents were able to purchase approximately 50 guns and numerous small amounts of methamphetamine and marijuana from various Hells Angels members named in the affidavit. Through the use of the undercover agents and confidential informants the ATF was able to identify approximately 125 Hells Angels members in Arizona who belonged to six independent charters. Of those 125 members, 18 are identified in the search warrant affidavit. Of those 18, 8 are defendants in its case. The affidavit in support of the search warrant was authored by ATF Agent Slatella. He alleged that the ATF was investigating a broad array of allegations pursuant to RICO and VICAR. In order to satisfy the enterprise requirement of RICO Agent Slatella alleged that all of the HAMC charters, including both its members and associates were a criminal racketeering enterprise and "that such a large portion of the enterprise's activities are illegitimate that they can be considered, in effect, wholly illegitimate." Agent Slatella then requested that the search warrant provide for the seizure of any records of any narcotics or gun sales

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but also for all indicia of membership in the HAMC including minutes of church meetings, officer meetings, telephone lists, membership rosters, club rules, records of motorcycle runs, financial records, and computers. Agent Slatella admitted, "in some instances the individuals whose residences are being searched under this portion of the affidavit are not directly implicated in any crime in this affidavit." He attempted to justify the order of indicia warrants on such individuals on the basis that they maintained records of an illegal enterprise. With respect to Robert Johnston, Slatella alleged that he was the president of the Mesa Charter of the Hell's Angels, that he had engaged in discussions with a confidential informant and undercover officers about narcotics, that he possessed a firearm as an illegal possessor for a short period of time on one occasion, and that he had discussions with the undercover officers about the confidential informant following his arrest and incarceration by federal authorities. Defendant Johnston submits that the allegations regarding the Hell's Angels as a completely illegal criminal enterprise are false and the specific allegations regarding his activities in this matter are also false. Defendant Johnston submits that the false allegations were made intentionally, knowingly and recklessly and therefore he is entitled to a Franks hearing. Defendant Johnston submits the following in regard to this matter: 1) The allegation that the Hells Angels are a wholly illegitimate enterprise is false; the club is comprised of approximately 125

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members most of whom do not have criminal records and only a few are targets of this investigation;

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2) The "CW" who has been identified as Rudy Kramer, the source of allegations about the defendant, is a methamphetamine addict who

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was abusing that drug throughout the course of the investigation in this case. During the course of the investigation he was regularly seen to be using methamphetamine, was caught by the police with paraphernalia and cutting agents that indicated that he was a dealer

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of methamphetamine and was finally caught by police with two ounces of methamphetamine while riding his motorcycle. None of the information attributed to the "CW" is reliable; 3) There is no nexus between the items requested in the search

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warrant and Johnson's house. FACTS: 1. Overview of the search warrant affidavit.

The facts herein are taken primarily from the search warrant affidavit and reports of investigation that have been provided to counsel through the federal case. ATF Agent Slatella states in his affidavit that he has been with the ATF for 15 years and, as of the date of the affidavit, July 2, 2003 he had been investigating the Hell's Angels for 19 months. He stated that he had been involved in over a dozen federal and state investigations of motorcycle clubs and had interviewed members, ex-members and their wives, girlfriends and associates. He had been to numerous training seminars related to outlaw motorcycle clubs and had read and

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consulted with experts in that area. (Slatella refused to identify these experts at an interview on 7/26/04). He stated on page 2 that the purpose of his affidavit was to show probable cause exists to search the locations identified in the affidavit. Finally, he avowed that all of the facts stated in the affidavit came from his personal knowledge or the investigative reports and interviews with the officers and agents who authored the investigative reports. At page 3 of the affidavit he identified the undercover agents, confidential informants and witnesses that were involved in this ATF sting operation. He identified three ATF agents as being undercover along with one Phoenix Police Department officer. A confidential witness and a confidential informant were also identified in the affidavit. He stated that there were other informants and sources whose information was somehow corroborated but fails to give any information as to how that occurred. Slatella refused to disclose the facts that these witnesses had knowledge of during his interview on 7/26/04. Slatella failed to mention that the person identified as "CW", Rudolph Kramer, (referred to in the ROIs as CI 790) was arrested on November 2, 2002 by DPS and ATF on an outstanding federal warrant and was found to be in possession of two ounces of methamphetamine. At his initial appearance Judge Duncan found that Kramer tested positive for meth and that "those who use meth are inherently unreliable and untrustworthy." See Exhibits 1 and 2 attached hereto. In addition, Kramer was stopped by DPS on September 6, 2002 and found to be in possession of cutting agents and drug paraphernalia used in meth sales. See Exhibit 3 attached hereto. It was well known to ATF and the Hells Angels that Kramer was strung out on meth throughout his role in this matter. In one reported conversation between

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Mr. Johnson and confidential informant 604 Johnson stated that CW "could be saved (referring to the fact that CI 790 would not be addicted to the drug)" and CI 604 admitted that Kramer was "turning out quantities of 3-4 ounces [of meth] a night." See Exhibit 4 attached hereto. Finally, Kramer himself latter told his friend that the ATF was forcing him to lie about what he witnessed in this investigation. Slatella intentionally concealed from the issuing judge herein the unreliability of this witness. Beginning at page 4 of the affidavit Mr. Slatella lists 15 individuals who were the subject of the affidavit. Ten of the individuals are alleged to have some kind of criminal conviction and five had no criminal convictions. Report of Investigation (hereinafter ROI) #76, page 2, Exhibit 5, states that seven of these individuals were indicted for alleged RICO violations in federal court. ROI #1 at pages 21-24 lists 125 known Hell's Angel's members or associates in the state of Arizona. Seventy five of these members have no reported criminal record according to ATF. Therefore, the ATF investigation only involved a very small percentage of the total HA members in Arizona. These facts are important in assessing whether there is any factual basis for Slatella's conclusion that the Hells Angels are a wholly criminal enterprise. Undercover officer Jay Dobyns has testified under oath in deposition that the Hells Angels exist for enjoying motorcycles, parties, camaraderie, and members are not required to engage illegal conduct. He stated that "if those characteristics make it legitimate, then I would agree to it." See Exhibit 6 attached hereto. Slatella also concealed that there was disagreement among members of the various charters about what the members should be "doing." For instance, in ROI 62 the undercover agents report a conversation at the Mesa clubhouse on January

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29, 2003 with Calvin Schaeffer where he stated that "that there was a split in the club" and "there were five members in the club including himself that wanted to outlaw." He also stated that he wanted to do "business" with the undercovers in the future but that "business would be reached by coded conversation." See Exhibit 7 attached hereto. Slatella next set forth criminal violations of the persons that are the subject of the search warrant affidavit. At the top of the list is RICO and his allegation that the Hell's Angels motorcycle club is an enterprise engaged in racketeering activities and that the enterprise consists of HAMC and all of its members and associates in the state of Arizona. He alleges the racketeering activity to be murder, extortion, dealing in controlled substances, obstruction of criminal investigations and tampering with witnesses. He also alleges that the Hell's Angels are engaged in violent crimes in aid of racketeering activities (VICAR), possession of firearms in connection with a crime of violence, possession of firearms by convicted felons, possession of firearms by unlawful users of controlled substances, distribution of methamphetamine and marijuana and conspiracy to commit all of the aforementioned crimes. Nowhere in the affidavit are there any factual allegations in support of murder, extortion, obstruction of criminal investigations or witness tampering charges. With respect to the evidence to be seized, found at page 12 and 13 of the affidavit, Slatella lists guns and ammunition, receipts, photos, records, pagers, money or anything else connected with the illegal narcotics or illegal gun sales. He also lists indicia of membership in the Hells Angels, including notes and

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minutes, telephone lists, bylaws, evidence of motorcycle runs, financial records, computers, memorabilia, etc. At page 15 Slatella makes an interesting admission; "It should be noted that in some instances the individuals whose residences are being searched under this portion of the affidavit are not directly implicated in any crime in this affidavit. Indeed, there is limited information on some of these individuals and the affidavit itself, other than information about their position in the racketeering enterprise and their responsibilities to maintain certain records of the enterprise. Permission is being sought to search the residences of these individuals solely because they are custodian of records of the criminal enterprise, and there is probable cause to believe that these records contained evidence of the aforementioned offenses. In other instances, of course, the persons are both custodian of records and active participants in the criminal conduct described in this affidavit. These items are requested only where there is probable cause to believe that persons who occupy each of the residences to be searched are not merely members or associates of HAMC OMG but have personally conducted the affairs of the racketeering enterprise, namely, the HAMC OMG and its associates, at least in part through a pattern of racketeering activity, or committing or conspiring to commit armed narcotic trafficking and other firearms violations, or by committing violent crimes in aid of racketeering activity, or have conspired to do so." Agent Slatella states that HAMC also holds state meetings and implies that decisions involving criminal activities are made at these meetings. The affidavit contains no factual allegations about what "criminal activities" were discussed at any given meeting and Slatella refused to give any specific information about these

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discussions about so called "criminal activities" in his interview or to even identify the general nature of the of the discussions. Recently disclosure in this case shows that Slatella's allegations regarding the discussion of criminal activity in meetings is false. ATF recruited a Hells Angels member, Mike Kramer, from the Mesa Chapter who attended West Coast, state and Mesa charter meeting and recorded them. There are no discussions of engaging in any criminal activity in any of the meeting recorded by this informant. Slatella denied any knowledge of these recordings while testifying under oath on November 22, 2004 which reflects on his ability to lie under oath. See Exhibit 8, attached hereto. At page 27 Slatella states that there is a President, Vice President, Sergeant at Arms, Secretary/Treasurer and Road Captain who are the officers of any given Hell's Angels chapter. With respect to the President of the chapter Slatella states that he has "full authority over the chapter and can veto any decision voted on by the chapter." In truth, charter business and decision are made by all of the members. The charter rules do not provide any veto power by the President. Hell's Angels chapters are known for their democracy not their autocracy. See the Bylaws for the Cave Creek Charter attached hereto as Exhibit 9 as an example. At page 29 Slatella correctly acknowledges that HAMC was incorporated in California in 1967 and owns the rights to the Hell's Angel's names and symbols. The copyright and trade mark rights of the corporation are of extreme importance to the national and international membership and are a topic at most of the national and world meetings. Slatella states that the Hell's Angels Motorcycle Club "OMG" is divided into six chapters (known as charters) in the State of Arizona. At page 29 Slatella

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makes the following statement "Each President is responsible for attending state meetings and for informing his chapter of any criminal or other directives provided at the meetings." Defendant herein contends that Slatella attempted to intentionally mislead the court in order to support his theory that there is a statewide criminal enterprise of Hell's Angels. A review of the ROI's indicates that the undercover agents identified in the affidavit attended only one Skull Valley chapter meeting of officers, commonly known as a church meeting, and did not have any personal knowledge or information concerning anything that occurred at a state meeting. There are absolutely no facts in the affidavit or the ROI's that would support Slatella's conclusion that "criminal directives" have ever been discussed or given in a state HA meeting. The later disclosure of Kramer's tapes of meeting also fails to show that any "criminal directives" were ever discussed. At page 32 Slatella discusses "support" clubs whose only purpose is to assist in criminal activity. In truth, these "support" clubs are primarily motorcycle enthusiasts who are friends with the Hell's Angels but do not want to spend the time or effort to be a Hells Angel. At pages 35 and 36 Slatella alleges that the bank account records, minutes and other records of the Hell's Angels reflect illegal activity such as extortion, illegal firearm sales and/or purchases and other crimes. However, Slatella does not cite any evidence that these bank accounts and organizational records would actually reflect any criminal activity nor does he reference any prior investigations where records of criminal activity had been found in a raid of a Hell's Angels clubhouse. In truth, it appears counterintuitive to allege that the Hell's Angels are a highly sophisticated criminal organization on the one hand and on the other that they are so stupid that they would leave a paper trail of their criminal activities in

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their bank account records and minutes of meetings. The truth is Slatella had no idea whether the bank account records, minutes or other documents related to the Hell's Angels would show any evidence of criminal activity. See Exhibit 10, exert from 7/26/04 interview. At page 38 Slatella makes the allegation that the Red Devils Motorcycle Club transports and stores narcotics for Hell's Angels. The source of this information is the unreliable CW. ROI #5. In addition, Mesa Chapter President Bob Johnston told ATF's undercover agents that the Hell's Angels are not involved in handling drug operations in Arizona. ROI #9. Finally, Slatella failed to inform the court that the source of the personal use meth purchased by Hells Angels in the Phoenix area were two non members, Joanne Perez-Arreola, known as Casey Jo, and Robert Pancrazi, who obtained their meth from Mexican suppliers and sold small amounts to certain Hells Angels members as well as others. These individuals were known to the ATF months before the search warrant application was filed and spawned a separate investigation that was not disclosed to the issuing judge herein. See Exhibits 11 Application for Interception of Wire Communications, United States District Court, Arizona, WT 03-06-PHX-PGR attached hereto and incorporated by reference herein. Beginning at page 39 Slatella discusses the individual counts of racketeering against the 15 targets of the investigation. This section of the affidavit is organized according to the places to be searched and the alleged acts of racketeering that occurred on these premises. Most of the acts of racketeering alleged involved the purchase of guns or small amounts of drugs from the targets of the affidavit operating on an individual basis. Slatella does not allege that the sale of guns by the suspects to the undercover officers was in itself illegal but does

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allege that the possession of guns by persons with felony convictions may have been illegal. The illegal drugs given to or sold to the undercovers were, for the most part, of such small quantities that they only show that the Hell's Angels organization is not involved in methamphetamine trafficking in general and those members who did allegedly partake in methamphetamine with the undercover agents possessed quantities for personal use only 1 . In terms of this motion the important part of the affidavit are the allegations of criminal activities related to Robert Johnston. Those allegations appear at pages 67-74 of the affidavit. A large part of the allegations are attributed to CW who was strung out on meth much of the time. First, Slatella alleges that in May, 2002 the CW had numerous meetings with Mr. Johnston and requested that Johnston provide a HAMC contact for CW to obtain firearms. CW, Rudolph Kramer, alleges that Johnston referred CW to another Hell's Angels member, Tony Cruze. Slatella failed to tell the judge that the CW and Cruze were friends and CW did not need a referral from anyone to speak with his friend. Slatella goes on to discuss conversations between Johnston and the undercover agents in December 2002 concerning the CW and his legal troubles after he was arrested for possession of firearms and possession of methamphetamine. None of the conversations relate to any criminal activity by Johnston. At page 69 Slatella discusses conversations between the CW and two unknown individuals in June 2002. According to the CW these unknown

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. A review of the evidence logs regarding meth transactions from 5/13/02 through 7/7/03 shows 21 transactions of less than a gram, 22 between 1 and 3.5 grams and 6 over 3.5 grams. The largest amount involved in a transaction was an ounce. Approximately 20 individuals were involved in these transactions. See Exhibit 12 attached hereto.

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individuals called Johnston who told the CW to speak with them. However, it is difficult to see the relevance of these paragraphs since no criminal activity was discussed and the CW appears to be fabricating facts, perhaps because of his methamphetamine addiction. At page 71 Slatella alleges that Johnston had a discussion with the CW in July, 2002 about contact numbers for members to discuss firearms and explosive purchases in the future. There is no indication that Johnson ever gave CW these numbers. There are several paragraphs related to motorcycle club politics at pages 71 and 72. CW alleges that Johnson told him on August 1, 2002 that the undercover agents were welcome to traffic narcotics in Arizona. However, the undercover agents were buying guns as their cover story, not selling drugs, and therefore CW's story does not make sense. (See next paragraph) No other criminal activity is alleged. At page 73 Slatella alleges that on August 13, 2002 CW gave an envelope with $500 to a Hell's Angels member Alex Davies as a reward because of Johnson "sanctioning of the UC's illegal firearm trafficking activities in the state of Arizona". The ROI that documents the incident contradicts Slatella's version of the facts. The report states that the $500 was given to as a donation to a defense fund and had nothing to do with any illegal activities on the part of the undercover agents. See Exhibit 13 attached hereto. At page 74 Slatella alleges that undercover agents were at the Mesa Clubhouse on November 14, 2002 and saw Johnston take a large caliber handgun from his vest or waist area and placed the gun on the patio wall. The ROI for this allegation states that Johnston had been in a meeting with the other members of the

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charter, had walked out of the meeting and placed the gun on the patio wall and left. The gun was allegedly picked up Terry Van Hull and there is no report on what he did with it or who owned the gun. Johnston denies this allegation but importantly, this allegation has nothing to do with RICO, his house or any activity close in time to July 2003 when the warrant was issued. The remainder of the information on Mr. Johnson does not relate to any criminal activity. Agent Slatella was interviewed by attorney Cameron Morgan in State v. Michael Coffelt, Maricopa County Superior Court Case No. CR 2003-01727-5-001 DT on July 26, 2004. He was deposed by Mr. Morgan in re the Matter of 1121 W. Ironwood, Maricopa County Superior Court No. CV 2003-016658 on November 22, 2004. Under cover agent Jay Dobyns was deposed in CV 2003-016658 on November 22, 2004.

LEGAL ARGUMENT: The seminal case on misrepresentations in search warrant affidavits is Franks v. Delaware, 438 U.S. 154 (1978). In Franks the Supreme Court held that a defendant may challenge the veracity of the factual statements contained in a search warrant affidavit and, if the court finds that misrepresentations were made intentionally, knowingly or with reckless disregard for the truth, those misrepresentations must be excluded from the affidavit, it must be re-drafted and probable cause determined from the re-drafted affidavit. Franks also holds that: "If an informant's tip is the source of information, the affidavit must recite "some of the underlying circumstances from which the informant concluded" that relevant evidence might be discovered, and "some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . .
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. was 'credible' or his information 'reliable.'" Id., at 114. Because it is the magistrate who must determine independently whether there is probable cause, Johnson v. United States, 333 U.S. 10, 13-14 (1948); Jones v. United States, 362 U.S. 257, 270-271 (1960), it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment." Franks v. Delaware, supra. If the informant is unreliable the government must so inform the magistrate so that he can give the appropriate weight to any evidence attributed to the informant. U.S. v. McCain, 271 F.Supp. 2d. 1187 (N.D. Cal. 2003). Where the government misrepresents the reliability of the information the defendant is entitled to a Franks hearing and suppression if the requisite mental state is shown. Id. In this case Slatella stated at p. 23 of the Affidavit that CW was recruited, interviewed, made monitored calls and posed as a member of the Solo Angeles motorcycle club. He failed to state that CW was using drugs throughout the investigation that affected his ability to perceive, remember and accurately relate the facts. It also failed to inform the court that CW was arrested and found to be possessing, selling and using meth. Moreover, Rudy Kramer claims that ATF threatened him and forced him to lie. Defendant contends that Slatella intentionally misled the court at page 73 of the affidavit when he stated that "[Johnson] would do anything he could to help M1 work through the problems of the arrest of the Solo Angeles president." Slatella knew full well that the "Solo Angels president" was, in fact, CW. Slatella knew that informing the court that CW was unreliable would substantially affect the probable cause determination

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concerning Johnson because it undercut all of the CW allegations contained in pages 67-73 of the Affidavit. Federal courts have held that the failure of an officer to support his opinion with facts is also fatal because it prevents the judicial officer from determining the applicability of any given legal term to the facts of the case. U.S. v. Alvarez, 127 F.3d 372 (5th Cir. 1997). Furthermore, where the misrepresentations concern a material legal issue, the requisite mental state can be inferred from the materiality of the statement and the circumstances surrounding the investigation. U.S. v. Namer, 680 F.2d 1088 (5th Cir. 1982). In this case Slatella gave unsupported opinion evidence on issues related to the Hells Angels as a RICO enterprise that was "wholly illegitimate. Not only was the opinion unsupported but it was false and it was the only basis for searching Mr. Johnson's home. One of the most important cases with respect to a search warrant for a motorcycle club is U.S. v. Rubio, 727 F.2d 786 (9th Cir. 1981). This decision held a search warrant affidavit regarding HAMC members lacked probable cause because the affidavits failed to show that the defendants conducted the affairs of the club through a pattern of racketeering activity or that there was a nexus between the association of the defendants with HAMC and some form of criminal activity. This decision is important because it is the leading 9th Circuit case in this area and the district court judge was required to follow it and Slatella knew that he had to get around it. This court should also review the RICO allegations and probable cause for the search of the Mr. Johnson's house under the standards set forth in U.S. v. Rubio, supra. Slatella and the government knew that Rubio was determinative of whether ATF would be allowed to search the homes and clubhouse of the innocent Hell's

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Angels members referenced at page 15 of the affidavit. Unless Slatella could convince the judge that "the HAMC OMG (including both its members and its associates) in the State of Arizona is a criminal racketeering enterprise . . . and that such a large portion of the enterprises activities are illegitimate that they can be considered, in effect, wholly illegitimate," the government would not be allowed to search the residences and clubhouses of members who did not participate in any RICO criminal activity. For this reason the government misrepresented facts and concealed other facts from the issuing judge; it needed to somehow justify its legally unsustainable position that an entire motorcycle club was an illegal enterprise because a few members were engaged in illegal activity. The facts in Rubio are that a grand jury returned a three count indictment against 33 defendants alleging various violations of RICO. The government obtained a search warrant for the houses of several of the members and executed a carefully prepared plan to arrest the defendants and search their residences. The search warrants alleged that the defendants were members of the Hell's Angels and requested that their residences be searched for evidence of criminal activity and indicia of membership. The Rubio defendants alleged that the search warrants violated their First Amendment right to association and were therefore illegal. The court rejected this argument and found that the defendant's rights had to be analyzed under the Fourth Amendment. The Rubio court found that the Supreme Court had answered the issue of First Amendment rights in Zurcher v. Standford Daily, 436 U.S. 547 (1978). In that case the court stated: The . . . cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would endangered by the search.

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. . . Properly administered the pre-conditions for a warrant - probable cause, specificity with respect to the place to be search and of things to be seized, and overall reasonableness - - should afford sufficient protection against the harms that are assertedly threatened. . ." The defendants next contended that the warrants were lacking in probable cause. Specifically, the defendants contended that the warrants lacked probable cause because no nexus was established between the indicia of association to be seized and any alleged criminal activity. With respect to legitimate organizations such as the Hell's Angels the court stated as follows: If such a large portion of the subject organization's activities are illegitimate so that the enterprise could be considered, in effect, wholly illegitimate, then there would certainly be cause to believe that evidence of a suspects association with that enterprise would aid in a RICO conviction. However, where there is no allegation that the enterprise is wholly illegitimate as is true in this case, evidence of mere association would not necessarily aid in obtaining a conviction. Something more must be demonstrated; otherwise the Fourth Amendment would offer little protection for those who are innocently associated with a legitimate enterprise, the affairs of which are being conducted by others through a pattern of racketeering activity. In this regard we concur with the assessment of the 2nd Circuit in U.S. v. Scotto, 641 F.2d 47 (2nd Cir. 1980), that simply committing predicate acts which are unrelated to the enterprise or one's position within it would be insufficient to establish a violation of §1962(C). .... Similarly, probable cause to believe a suspect was associated with a particular enterprise would be insufficient, of itself, to support a warrant for the seizure of indicia of

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association. Accordingly, we hold that in the absence of a showing that a large portion of the RICO enterprises activities are illegitimate so that the entire enterprise, in effect, becomes wholly illegitimate, the affidavit in support of the search warrant authorizing the seizure of indicia of membership or association must also provide probable cause to believe that the subject has conducted the affairs of the enterprise, at least in part, through a pattern of racketeering activity. We believe a contrary rule would lead to the seizure of "mere evidence" from any suspected member or associate of any enterprise with no nexus whatsoever between the evidence and criminal activity. Rubio was considered and relied upon in U.S. v. Brown, 951 F.2d 999 (9th Cir. 1991). In Brown the government was investigating a group of police officers

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known as the "Major Violators Crew 2" who were accused of stealing money from
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defendants in drug cases. The government attempted to argue that the entire police
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unit was an illegitimate enterprise and therefore they had the right to search each
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officer's house. The court rejected this argument finding that the "Majors" unit
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was a legitimate police organization and that the fact that some members were
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engaged in illegal activity did not transform the Majors Unit into a wholly
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illegitimate enterprise. Rubio precluded a finding of probable cause to search any
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given member unless they were shown to be engaging in criminal activity.
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However, the court upheld the searches of the officers' residences because this was
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not a Franks case involving misleading affidavits.
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Slatella's legal opinion that he believes justifies the search of the HAMC
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member s residence and clubhouses is derived directly from Rubio. At page 107
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he states:
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"I believe that the HAMC OMG (including both its members and associates in the State of Arizona is a criminal racketeering enterprise within the meaning of Title 18,
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United States Code 1961(4) and that such a large portion of the enterprise's activities are illegitimate that they can be considered, in effect, wholly illegitimate. I believe that racketeering activities and other criminal acts are pervasive throughout the HAMC OMG and have been since before the inception of this investigation." This statement is an intentional misrepresentation. Slatella knew that the Hell's Angels are primarily a motorcycle club whose members spend the majority of their time with the club socializing and riding motorcycles. For the most part, they have normal jobs and/or businesses and do community service such as toy collections at Christmas. Most of them have no criminal record and have never been arrested. 2 They pay dues to the club on a regular basis to finance the motorcycle runs and parties that are the mainstay of the membership. However, law enforcement officials caught up in the pursuit of the elusive OMG cannot believe what their eyes plainly see. As two so called gang experts wrote: "[Motorcycle] Gangs often use "smoke screens" in their attempt to deceive the public. They want people to believe that while they may look bad on the outside, they have hearts of gold. Some of their "philanthropic" gestures have included raising funds for the Statue of Liberty restoration, carrying the Olympic torch, conducting benefits for disabled children, organizing blood drives, and involving themselves in other kinds of charity events. This has been somewhat successful, as some people still consider bikers as fashionable rebels in leather attire. It is an image that is promoted when movies, the fashion industry, TV

ATF prepared a document entitled Historical Conduct which shows the criminal history and police contacts with HA members. Since 1997 when HA was established in Arizona ATF shows them to have committed 3 felonies, 10 misdemeanors, 14 traffic offenses and several other minor offenses. The ATF also alleges 9 other contacts with police that resulted in no arrests. 21

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commercials, actors, athletes, and politicians embrace the "bad boy" image and lifestyle" Motorcycle Gangs or Motorcycle Mafia; Steve Tretheway and Terry Katz Mr. Johnson may be a member of the Hells Angels, but there are no facts in the Affidavit that support an indicia warrant for his home. There is one remaining allegation of possible criminal conduct in the affidavit and that is that the undercover agent saw Mr. Johnson with a gun for a few seconds at the Mesa clubhouse on November 14, 2002, almost eight months prior to the issuance of the search warrant. There is no allegation that Johnson owned a gun or was seen with one on any other occasion nor is there any allegation that his home was involved in any criminal conduct. In order for there to be probable cause to search Johnson's home there must be a nexus between the place to be searched and the item to be seized. U.S. V. Grandstaff, 813 F.2d 1353 (9th Cir. 1987; U.S. v. Hendricks, 743 F.2d 653 (9th Cir. 1984). In this case there is no allegation that anything requested in the search warrant would be found at the Johnson's residence. There is no nexus in this case. The misrepresentations and concealments involved in this case that require the court to hold a Franks hearing are as follows; 1) There is no basis for Slatella's opinion that all HA members in the state of Arizona are a members of a RICO organization and that the organization is wholly illegitimate; 2) Slatella withheld crucial information that established that CW was an unreliable witness, specifically, his drug use and arrest during the course of the investigation; 3) there were no criminal activities occurring at Johnston's house and therefore no nexus between the items to be seized and the place to be searched.

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Based on the foregoing Defendant respectfully requests that the court find that agent Slatella misrepresented and concealed information that was material and relevant to the probable cause determination herein. Defendant has made the requisite showing to require that the court hold an evidentiary hearing to determine what facts to delete and what facts to add to a revised search warrant affidavit with respect to Defendant Johnston's house. Defendant asserts that the court will find that there is insufficient probable cause to show that Mr. Johnston was part of a RICO organization or engaged in any criminal activity that would give rise to probable cause herein. Defendant requests that the court suppress all evidence obtained as a result of the search of his home. DATED this 13th day of December, 2005.

/s/Brian F. Russo Brian Russo Attorney for Defendant COPY of the foregoing electronically mailed this 13th day of December, 2005, to: Tim Duax Keith Vercauteran Asst. U.S. Attorneys All Defense Counsel

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/s/

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