Discussing Waco, RICO and the case with my MENSA bright buddy.

I decided to give my old partner a call about the Waco case. He understandings  RICO in and out and would help me make sure I was on the right path. He had been in Europe and didn’t really know what happened, so he spoke to me from a more technical aspect.

The trouble with talking with him is when you open his brain you hope to find a three chapter novella and end up with a ten chapter text book!  All the while hoping to remember what all he said and why he said it.

So let me get to it, and as this process works out I’ll probably be adding to the post.

RICO is a statute designed to target groups.  Whether that group is small, loosely knit, old, new, hidden or operating in the open.  The concept is to link separate acts by individual members into a whole by stating that each “predicate” act is somehow part of an effort to service the whole.

For example, a loosely knit low level group would have been Charlie Manson and the “family.”  I am watching a very good show on NBC called “Aquarius” with David Duchovny.  In it he plays a detective in 1967 that ends up dealing with Manson and the “Family” prior to the Tate murder.  That prompted me to go back and revisit the history of Manson, especially when I saw California employing the “conspiracy to commit” statute to round up the whole group including Manson, who gave the orders but didn’t participate in the crimes.

In essence, that is RICO.

To keep this in some kind of order, I’m going to apply three areas. Again, I understand the basics, my buddy the details, and I’m sure there are far more educated professionals out there- including state and federal prosecutors- who can do a better job than me.  What I want to do is boil it down and apply it to Waco so people visiting the site can get a handled on the “why’s and how’s” of the charging process.

Principle 1: What is RICO or more specifically how does it apply?  The RICO goal is simple- to be able to attack an organization in such a way as to identify and link individuals as a whole so they can be charged that way.  Simply put, if LE (law enforcement which includes police and prosecutors) can identify a group of individuals acting in concert in order to further a goal of the group they can called it a criminal organization and pursue RICO.

The Bandidos and Cossacks fit that description.  In fact, one of the identifying criteria is the common dress and actions- vests and being bikers.   In this case, it seems the individuals were targeted because of the biker affiliation.  You can make the same argument for Crips, Bloods and the BGDs.

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This is a gang. Not a Glee episode. Similar identifying colors or symbols are part of the identification process.

So is this. The question is if this is a criminal gang.

All RICOS contain predicate actsNot all identified organizations are criminal. To be identified as criminal they must, well commit certain criminal acts.  The Boys Scouts and your local church are organizations, they just aren’t CRIMINAL organizations.  RICO lists what it demands must be certain types of predicate acts that can be used as underlying charges.  Not all crimes fit, many are left out. If any member of that group commits two listed acts in the furtherance of the group that person can be charged with RICO. From Wiki:

RICO predicate offenses

Under the law, the meaning of racketeering activity is set out at 18 U.S.C. § 1961. As currently amended it includes:

For example, if biker A commits an extortion and then commits the attempted murder of a rival gang (over territory which equates to profit for the group), he has his two predicate acts and is inside the RICO wheel.   These predicate acts should occur over time, up to ten years, but don’t have to.  In this case, you may see the prosecutors file predicate acts from the incident.

However, if a biker hates his neighbor and shoots him out of spite, unless other bikers are involved in the crime, chances are the murder charge would be held as an individual act and not fall under RICO and would not strengthen the case.

The feds have their predicate acts.  The states have theirs.  Each state can be different.  Each state’s rules of discovery, confinement, thresholds of probable cause can also differ.  I know when I was working I would run into bad guys from other states and they would tell me what happened to them “back home.”  There is a big difference between each state. Sometimes we forget that when we apply what we think can be done to what is being done.

Principle 2: The Rumsfeld rule of “unknowns.”  Rules of discovery and procedure differ from state to state and from the states to the federal government. My buddy related some of his experiences with the feds in court with certain filings by defense attorneys. I had told him about the filings we were seeing and he laughed.  “Of course they did.  They are losing the other hearings dealing with bail and probable cause, so they file these.”  He went on to explain he would fully expect the defense counsels to file.

The problem as he sees it was the tremendous impact the arrests had on the system.  He said that most defense attorneys have no experience in federal law or RICO issues.  Most are misdemeanor DUI types who  went up on the Internet, did a little studying and think they can walk into a federal court and swing a motion around.  It usually pisses off the judge and amuses the prosecution.  Like I said, RICO is a different kettle of fish.

If the feds take the case, and they might for a few reasons, things will get even muddier.  Their “discovery” isn’t much. I don’t like that, but it is what it is.  I asked him why they didn’t take it, and he said simply they may just not want to mess with it.  They can funnel their intel into the state case, provide support and simply let the State have it. If the State wins, they are happy. If the State’s case is weak and they lose, the feds will simply point to the State and blame them.  Win-win.

What does that mean to the Bandidos.  We are in a Rumsfeld world. We don’t know what the feds know, but we can assume they have had the Bandidos and the rest under surveillance at some level.  My buddy gave an example.  “Let’s say the bikers gangs meet in other locations.  The feds photograph and record those meetings.  Biker Bob is seen at three  earlier meetings and at the Waco event.  He can’t say it was an accident he showed up there.  He’s identified as part of an identified gang.  Principle 1 is met- for him.  That has to go on for all the people arrested.  They will claim they have no idea what happened or why they were there.  Prosecutors have to prove different.

My friend went on to say if the feds have an ongoing investigation that doesn’t mean they were planning to arrest anyone right away and maybe this event pulled the pin early for them.  If so, and there is intelligence, Title 3 wiretaps and CIs or undercovers, the feds will provide the information but will not reveal HOW they got that information. Where I’m from, keeping a CI’s identity safe is hard at the State level.  At the federal level they are very reluctant to give up their sources.  And I assume the rules of FEDERAL law favors that.

What that means is WE may never know the who, only the what.

Principle 3:   Why did everybody go to jail.  His answer was a little different than mine. I felt the police and the prosecutors had no choice. All the victims, evidence and suspects/witnesses were right there in an acre or so of crime scene. Extraordinary times calls for extraordinary responses.

He gave another take- one of continued violence and mayhem.  What if they arrested a few, let the rest go and the bikers took up positions around the area, renting motel rooms and staying close.  Then there would be further confrontations and revenge retaliations between the two groups, within Waco, endangering innocent civilians.

Sometimes people forget our other duty as policemen which is to maintain the peace and order in our community.  That is paramount.  If the police let the bikers go and a dozen more shootings happened and innocent people were killed it would be the fault of the police for not stopping the threat.

I agree with him.  It isn’t like the bikers aren’t capable of and not willing to kill each other in front of innocent people, and endangering those people.  In fact, that is exactly what happened in Waco. So the police may have swept up the bikers much like police do rioters.  They have no clue which one threw the brick through a window of a business or started the fire. But they know if they don’t round them up, the brick throwing and arson will continue, and that cannot happen.

 

 

 

 

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