Two more plea deals in the federal case against the Pagans Motorcycle Club were filed yesterday. One of the plea deals was signed by former Pagans National Vice President Floyd B. “Jesse” Moore. And, that was the least of the news about this case dumped into the public record on the Friday afternoon before Christmas.
Buried on page 13 of Moore’s 18 page confession is a formal statement of the government’s intent to seek the forfeiture of:
“The trade-name, trade-mark and/or service-mark “PAGAN’S” (Registration No. 2514194) and related logo/design (Registration No. 2619538), issued by the United States Patent and Trademark Office to Floyd B. Moore, Individual Registrant, located and doing business at 2029 Pennsylvania Avenue, St. Albans, West Virginia, 25177, purportedly for use in interstate commerce or such other commerce as may be regulated by Congress, together with any and all common law rights of Floyd B. Moore and/or the Pagan’s Motorcycle Club (sic) and any of its members to the usage of such image and name and, further, together with any and all associated good will and reputation.”
Feds Not Einstein
Albert Einstein, the wild haired genius who died in 1955, once defined insanity as “doing the same thing over and over again and expecting different results.” By Einstein’s definition, the United States Department of Justice is now insane. Much more learned and punctilious prosecutors just tried this same thing in the Mongols case and a Federal District Judge in Los Angeles named Florence-Marie Cooper seemed genuinely insulted that the Justice Department should try to sneak that one past her.
In two rulings, on July 31st and August 6th, Judge Cooper ruled that the patch worn by the Mongols Motorcycle Club is a “collective membership mark” that cannot be owned by any individual patch holder. The government’s argument in the Mongols case, US versus Cavazos, was that the Mongols Club President, Ruben “Doc” Cavazos, “owned” the Mongols trademarks and had agreed to forfeit them to the Department of Justice. The government’s argument in the Pagans case is that Floyd B. “Jesse” Moore owns the Pagans trademarks so the government can steal them from him.
Ruling in the case Ramon Rivera versus Ronnie A. Carter, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); John A. Torres, Special Agent in Charge, ATF Los Angeles Field Division; and Eric H. Holder, United States Attorney General Judge Cooper wrote: “Even if the Court were to accept the Government’s evidence that Ruben Cavazos controlled the use of the mark during his tenure as National President there is no support for the notion that a defendant’s control of property belonging to a RICO enterprise is sufficient to establish a forfeitable ownership interest in the property.”
“…even if the Court were to assume that the collective membership mark is subject to forfeiture,” Cooper continued, “the Court finds no statutory authority to seize property bearing the mark from third parties…. only defendants’ interests in the RICO enterprise and the proceeds from their racketeering activity are subject to forfeiture.”
The Constitutional Issue
Judge Cooper did not rule on the constitutionality of the seizure of a motorcycle club’s patch but she did take time to say that the Constitution of the United States unambiguously forbids it.
“In contrast to commercial trademarks, which are used in commerce and generally not entitled to full First Amendment protections,” Cooper explained, “collective membership marks are used by members of an organization to ‘indicate membership in a union, an association, or other organization.’ The use and display of collective membership marks therefore directly implicate the First Amendment’s right to freedom of association. The Supreme Court has recognized that ‘implicit in the right to engage in activities protected by the First Amendment’ is ‘a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’ This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.’ Furthermore, clothing identifying one’s association with an organization is generally considered expressive conduct entitled to First Amendment protection…. If speech is noncommercial in nature, it is entitled to full First Amendment protection, which prohibits the prior restraint and seizure of speech-related materials without a judicial determination that the speech is harmful, unprotected, or otherwise illegal.
“Prohibiting speech of this nature constitutes an attack on a particular viewpoint. In Sammartano (v. First Judicial District Court, in and for the County of Carson City) the Carson City courthouse enacted a rule to prohibit admission of those with ‘clothing, attire or colors which have symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations,’ because ‘such clothing or attire can be extremely disruptive and intimidating, especially when members of different groups are in the building at the same time.’ The Ninth Circuit reasoned that the rule singles out bikers and similar organizations for the message their clothing is presumed to convey, and held that the rule impermissibly discriminates against a particular point of view – the view of biker clubs as opposed to garden clubs and gun clubs. In this case, the Government targets an even narrower group of individuals, a single motorcycle club. In addition, the Government has been seizing property, which imposes a greater restriction on individual rights than the denial of access to a public facility. Accordingly, the seizure of property bearing a Mongols membership mark should be considered viewpoint-discriminatory. The Government’s ability to seize property bearing the trademark acts as a prior restraint and cannot stand without a judicial determination that the speech is harmful, unprotected, or otherwise illegal. No such determination was ever sought by the Government, and no such determination was ever made by the Court.”
Moore Plea Deal
The rest of Moore’s confession is a frank admission to “Racketeering Act Five,” that in May 2006 he thought about “taking care of” a troublesome female acquaintance of a man named Thomas Morris and another frank admission to “Racketeering Act Nine,” that the Pagans ran a fundraising raffle every year and some of that money passed through his hands.
About “Racketeering Act Five,” Moore confessed:
“In May 2006, Thomas Morris approached Moore about having a person “taken care of” for reasons personal to Morris. Morris spoke to Moore about this problem because Morris knew that Moore was the national vice president of the Pagans and Morris thought that Moore would know someone who could take care of Morris’ problem. Morris was a local chapter president of the Avengers Motorcycle Club. Morris told Moore that a woman had ‘ruined his life’ and he wanted her ‘taken care of.’ Morris did not care how the woman was ‘taken care of,’ but he wanted her ‘out of his life.’ Moore understood that Morris wanted this woman killed. Moore told Morris he knew someone who might be able to help him with his problem.
“Shortly after Morris’ initial conversation with Moore, Moore had a person known to both parties (the Known Person), who was a convicted murderer and member of the Pagans, contact Morris about the woman Morris wanted killed. Morris provided the Known Person with photographs of the victim and directions to her home. When the Known Person showed Moore the photographs and the maps at Moore’s residence in St. Albans, Kanawha County, West Virginia, within the Southern District of West Virginia, Moore told him to copy them and then destroy them. Moore also told the Known Person that if he helped Morris, it would give the Pagans the ‘weight’ it needed over the Avengers, since Morris was their local chapter president.”
About “Racketeering Act Nine,” Moore confessed in part that:
“On a yearly basis, including in 2007 and 2008, the mother club, including Moore and Barbeito (David Keith Barbeito was the Pagans National President) required all members of the Pagans to sell raffle tickets for a purported chance to win a motorcycle. The date on which the raffle was conducted and the amount of tickets each chapter was responsible for selling was dictated by the mother club. The raffle constituted gambling, in violation of the laws of the states in which the various Pagans members resided, in which the raffle was conducted, and in which the raffle money was collected and distributed. The money raised from the raffle was intended to be used to promote the Pagans. Chapter presidents were responsible for distributing raffle tickets to their chapter members and for collecting money from the sale of raffle tickets by their chapter members. The Pagans members were then required to travel to deliver the money to the mother club member in charge of that particular territory, in the case of Pagans members residing in Florida, New Jersey, New York, Philadelphia, and West Virginia, that mother club member was Moore. The money was ultimately delivered to Barbeito, who resides in Maryland.
“Each year, members of the Pagans sold 5000 tickets for ten dollars each, raising $50,000 for the PMC. All of this money from the sale of the raffle tickets went to Barbeito who had sole control and discretion over how to spend the money. For example, in 2008, Barbeito decided to give each mother club member one thousand dollars ($1,000).”
And A Partridge In A Pear Tree
In addition to the Pagans trademarks, Moore also agreed to forfeit a dozen firearms and the many interesting and unique items in the following list:
“Sheet of paper with Pagan names; evidence papers from trash bags; torn check and check deposit slip; lockbox with document; Pagan vests with patches; Pagan name list; Pagan clock; Pagan walking staff; wooden box containing Pagan patches; photos, notepads, business cards and notes; Rolodex, one belt, three belt buckles and weightlifting belt; birthday banner; four Pagan vests; Pagan caps, photos, mugs, and miscellaneous items; box of Pagan photos, patches and memorabilia; computer CD of photos; documents; Pagan walking stick, trophies, patches and photos; one 44-magnum cartridge; one bag of four Pagan vests; bag of Pagan patches and one Pagan vest; “Welcome Bikers” sign; Pagan belt, four t-shirts and one vest; three belts, three t-shirts and documents, and one black vest; one M&M bag containing bowl and green leafy substance; three Hells Angels t-shirts and one Hells Angel calendar; four Mongols t-shirts; 46 Pagan shirts; two blue jean Pagan vests; patches, documents and address book; prospect vest; briefcase; assorted Pagan memorabilia; two Pagan vests and patches and one belt buckle; Pagan patches and note, and lottery ticket; photos; photos and paperwork ‘Pagan’ storage building; address book and mail; Pagan wooden club; one box of keys (121 keys;) $21,895, more or less, in United States currency, packaged in a manner indicative of its origins, along with raffle tickets; one Safari Land body armor; Pagan memorabilia in large black garbage bag.”
But wait! There’s more!
“Steel Door Plaque ‘Pagans 1% ER;’ (one) long-sleeved black t-shirt with ‘Madness;’ set of three shot glasses w/glass plaque; Pagans 1% ‘In Memory of Lockjaw’ picture; Lone Riders ‘In Memory of’ picture with Lone Riders cut jacket; wood painted Pagans MC plaque; photograph of Jesse Moore and Barbeito; canvass flag ‘Pagans MC;’ photo, Jesse Moore and Hot Shot; two pictures w/Pagans MC; two group photos w/MC members; copper Pagan MC plaque; business card handgun safety class; two plaques w/Pagans MC; wood plaque with Pagans MC; meeting format picture; two wood plaques with PFFP; three pieces of paper with phone numbers; Christmas card; two baggies w/’Fuck the Hells Angels’ stickers; Pagans stickers; picture frame with price list for merchandise; ten t-shirts with ‘Support the l%’s Insanity;’ 24 t-shirts ‘l%er Pagans MC;’ mirror with Pagans; plaque to Pagans from DDMC; certificate from ‘Riding for Jesus Christ;’ Pagans banner (canvass;) box with t-shirts ‘From Schmidt to Moores;’ one leather belt with Pagans MC; one hat with ‘Pagan War Party;’ glass plate with Pagans MC; stone plaque with Pagans MC; mirror stand with 1%; clip holding bartender checklist and newspaper clippings; bartender tab/bill; Suddenlink bill.”
Certainly all good citizens will sleep better tonight knowing all that stuff is off the street.
Smith Plea Deal
Richard Howard Lacy Smith signed a confession ten days ago that remained secret until Friday.
Smith confessed that:
“Prior to June 1, 2006, the Pagans Motorcycle Club had an ongoing and violent rivalry with the Hell’s Angels Motorcycle Club. Richard Howard Leslie(sic) Smith, also known as ‘Reverse,’ knew that Ronnie Howerton, a member of the Pagans, was collecting weapons for the Pagans ongoing conflict with the Hells Angels. Charles H. Nichols, also known as ‘Tombstone Charlie,’ told Howerton that he could get explosives for him to use in the ongoing conflict with the Hells Angels. Mr. Nichols obtained explosives, that is, military grade C4 and two hand grenades, and gave them to James Hoback to transfer to Howerton. Howerton was unable to take the explosives from Mr. Hoback, so Mr. Hoback gave the explosives to Mr. Smith so he could deliver them to Howerton. Mr. Smith transported the explosives from Virginia to Princeton, Mercer County, West Virginia, in the Southern District of West Virginia.
“Howerton had told Mr. Smith, Mr. Hoback and Mr. Nichols, that the explosives would be used against members of the Hells Angels. Mr. Smith transported the explosives and gave them to Howerton with the intent that the explosives would be used to kill, injure or intimidate members of the Hells Angels. In June of 2006, Mr. Smith, Mr. Hoback and Mr. Nichols were all members of the Pagans.”
Neither Smith nor Moore’s plea deals specify how much jail time, if any, the two men will be expected to serve.