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Headline: Judge Dismisses Charges Against Motorcycle Club; 'Flawed' Gang Law Cited
Wednesday - 02/09/2005
Referrer: Dan Telvock

Feb 09, 2005 -- Loudoun Circuit Court Judge James H. Chamblin Monday dismissed all charges against a member of the Red Devil’s Motorcycle Club and is expected to do the same for the other three men charged with participating in a street gang.
As a result of the judge’s ruling, Loudoun Commonwealth’s Attorney Jim Plowman said that the state code section for participating in a street gang needs to be changed because the way it is currently worded prevented him from prosecuting the cases. The problem with the wording of the state’s gang law was brought to the court’s attention last week, through a motion by attorney Marvin Miller, who is defending co-defendant Percy Barfield.

Gary Alves is the second member of the motorcycle club who has had all charges dismissed. Alves was charged with participating in a street gang, assault of a fellow club member, carrying a concealed weapon and brandishing a firearm. He and four other members of the club were arrested in August, the culmination of a two-year undercover operation that began with the Fairfax Police Department who ended up receiving assistance from the Loudoun Sheriff’s Office and the 10th District Regional Gang Task Force.

To be charged with participating in a street gang under Virginia law, the person must have committed a violent offense in the past to support the gang, called a predicate offense. However, the code section does not permit offenses committed in other states to be considered.

Miller filed a motion last week asking that the case against his client be dismissed because the predicate crimes with which his client was charged with occurred outside of Virginia. Plowman said Chamblin made the right decision in dropping the charges because of the error in the code but he did not believe the commonwealth lost these cases.

“The code has a flaw in it,” Plowman said Monday. “The flaw is when you talk about predicate criminal acts [under the code] ... all of our predicate acts are out-of-state convictions and when this code section was drafted it mistakenly excluded convictions from other states that are substantially similar to the ones in Virginia. Since all of the predicate acts are outside of Virginia, we can’t meet the statute. There is actually a bill pending right now to correct that.”

Although the gang charges were dropped, Plowman defended the undercover investigation.

“If we can prove that down here we can infiltrate these gangs and we have infiltrated them for years, the [Hells Angels] are going to shy away,” Plowman said. “They are going to go somewhere else and that is a victory.”

Plowman said other code sections, such as for DUI, allow predicate charges from other states to be included and lawmakers need to amend the gang participating law the same way.

“Hells Angels are nationwide. MS-13 are nationwide. I don’t think the legislature intended to say you’ve got to come to Virginia and get two or three felony bites at the apple before we can charge you with this,” Plowman said.

Flannery said the fact that the case lasted this long is an “outrage.” All along, Flannery said the case brought against Alves was bogus. Flannery also defended Thorsten Hisam, another member of the club, who had all charges against him expunged from his record. Flannery said that the undercover agent from Fairfax who infiltrated the motorcycle club conducted a poor investigation and the charges were filed against his clients only when the investigator received pressure to justify the investigation. Flannery said the arrests came within days of a Washington Post report that questioned the state for overlapping efforts to deter and combat gang violence and how the state has failed to hire any additional investigators with the millions in federal funding earmarked for fighting gang violence.

In an e-mailed statement, Flannery said the problem is not with the state code, but with the “prosecution.”

“The commonwealth never had evidence of the crime described in the Virginia ‘gang’ statute and still they went forward with this case,” Flannery said. “ ... although the Virginia law was always crystal clear that you could not legally prosecute gang activity unless there were two or more criminal acts in the Commonwealth of Virginia, this investigation reached back in history to 1986 before there ever was a Virginia statute, and across the country to find offenses by Hells Angels as the ‘predicates’ for the charges here in Virginia.”

Miller said that he would have ultimately won at trial even without the out-of-state charge provision because the commonwealth’s case against his client was not strong. Miller commended Loudoun Assistant Commonwealth’s Attorney Robert Vernail for being “honest” and respecting the law.

“Not everyone in the Hells Angels is walking around with knives, guns and chains,” Miller said. “Some just like to ride motorcycles.”

How It Started

In August 2004, the Fairfax Police Department issued a press release stating that members of the Red Devil’s Motorcycle and the North Beach Maryland Hells Angels were arrested for gun and drug-related crimes. In Loudoun, a total of five people were arrested and four were charged with participating in a street gang. Sources said the investigation by the undercover Fairfax agent crossed state lines and that several people were charged and convicted from Philadelphia to New York as a result of the investigation.

The investigation of the local club lasted two years and started with the same undercover Fairfax investigator, who used the name “Poet Overstreet.” The Fairfax Police Department even ran a fake obituary for Poet Overstreet in The Washington Post during the same week the arrests were announced.

Flannery claimed that the undercover agent actually helped establish the club and that he tried to persuade members to commit crimes. Plowman denied Flannery’s claim and said that most, if not all, of the statements contained in Flannery’s court filings were baseless.

Flannery claimed his clients were being harassed by law enforcement, saying Alves, Hisam and other members of the motorcycle club were stopped more than 19 times without an infraction being committed. One club member even provided a recording of a stop from last year in which the Loudoun deputy states that patrol has been ordered to stop any members and identify them. According to General District Court records, Alves was charged with five traffic violations since 2002, with all but one charge being dismissed. Alves was convicted of driving his motorcycle side by side with another motorcycle on one side of the street, which is illegal in Virginia. Hisam was charged with just one traffic infraction and he pleaded guilty to an amended charge of improper driving.

Miller said it is common for bikers to be questioned a lot by law enforcement.

“My guy has been harassed in the past but he wasn’t harassed through this case because he wasn't generally hanging out with these guys,” Miller said. “Bikers get hassled a lot. I used to ride motorcycles a long time ago and they used to pull me over. Boy, that was a long time ago.”

Flannery filed several motions in the case and early on he accused law enforcement of harassing his clients and conducting a shoddy investigation. At one of those first hearings, Flannery released a document that he said an investigator sloppily dropped during a search which stated that undercover police investigators were authorized to allow non-violent crimes to occur in order to gain more intelligence on suspects. The document, titled “Loudoun County Sheriff’s Office Gang Intelligence Unit Operational Plan,” said crimes like stealing a vehicle can be allowed to occur and that the crimes will be followed up by the gang task force personnel as “soon as tactically possible.”

Plowman defended the document and said that it is used to protect the identity of undercover agents, their safety, and that any crime they witness is eventual followed up. He said the main issue that the press was failing to write about was how law enforcement is trying to prevent a charter of the infamous Hells Angels from establishing in the county.

Even before the arrests, Hisam and Alves decided to confront the sheriff’s office during a public anti-gang forum held at a middle school in Leesburg in late 2003. Hisam and Alves asked the deputies why they were harassing them and after the forum the motorcycle club members were involved in a heated discussion with several deputies. That confrontation led the sheriff to say that the county will not tolerate gang activity and that because the Red Devil’s wore red and black and were affiliated with the Hells Angels, they were “guilty by association.”

That confrontation was the first public indicator that the Red Devils were in Loudoun County.

The Case Unfolds

Flannery continued to file motions in the case for both clients, requesting evidence be returned and that the charges be dismissed.

When searching Alves’ home, investigators took some items that Flannery said went beyond the scope of the search—like an antique coin collection, antique guns from Alves’ father’s estate, belt buckles, jewelry, cell phones and VHS tapes. Flannery successfully was able to have the items retrieved but continued to accuse the commonwealth of withholding evidence that should have been open for discovery. None of the other attorneys for the other co-defendants made such claims, Plowman said.

During a hearing last week, Circuit Court Judge Thomas D. Horne stopped short of sanctioning the commonwealth’s attorney’s office for failing to abide by his order for discovery.

During that hearing, Flannery pointed out inaccuracies in an investigative report provided to him through discovery that had inconsistent dates, which raised the eyebrows of Horne. Horne warned Vernail to comply with discovery rules and to inform all investigators to do the same. On Feb. 2, Flannery was able to view some evidence that the judge ordered be shown back in November. Plowman said it was just a clerical mistake.

A week later the cases were dropped.

Investigators linked the Red Devils in search warrant affidavits for Hisam’s and Alves’s homes, to the Hells Angels. In the affidavit seeking a warrant to search Alves’s home, one investigator tries to show the relationship with the Hells Angels and the Red Devil’s Motorcycle Club and wrote a five-page affidavit explaining the history of the Hells Angels and crimes that Hells Angels members committed more than 10 years ago and nearly 3,000 miles away.

At least 19 heavily armed and armored law enforcement officers searched Hisam’s home. Flannery said the police busted through Hisam’s door, awakening his two children and wife. Hisam said his children still suffer from the event. The reason to search his home, according to the search warrant, was for two misdemeanors of carrying a concealed weapon that were eventually expunged from his record for lack of evidence.

Miller said the SWAT-like response is typical of law enforcement nowadays. With the millions of dollars in funding for the gang task forces, Miller said some of that cash is being spent on new equipment and that police will use that equipment any time they can.

“There’s some danger out there but a little bit of it is overblown,” Miller said. “To me, how they do these searches sometimes is like cowboy heaven. Unfortunately, this kind of stuff happens all too often. It’s crazy.”

A member of the Red Devils who asked not to be identified said that the reputation of the Hells Angels has been diluted over the years and that many people have the wrong idea about members of motorcycle clubs.

“Through the media and through the politics of mediocrity, our society has learned to forego many of the principles which have made us strong,” he wrote. “A country that was based on individualism, strength and honor has become one that follows the path of least resistance. That is not the Hells Angel way. They will stand up for what is right and defend their ideals.”

Plowman said he expects that Chamblin will dismiss the charges against the other four members soon. He stressed, however, that law enforcement put a huge block in front of the motorcycle club’s intentions of establishing itself here.

“The Hells Angels has been trying to establish a foothold in Virginia for years,” Plowman said. “You think they are going to try and re-establish a connection with the Red Devils anymore? I mean forget it. They are done. The damage to the area’s groups has been done.”

The investigation continues, authorities said. Several other members of Hells Angels clubs and its chapters have already been convicted or face federal charges, Plowman said.

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