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Gang Prosecutions Gang Prosecutions In This Issue Indicia of Association: Using Indicia Search Warrants in Gang Prosecutions . .1 May By Gretchen C. F. Shappert 2014 Volume 62 Gangs, Guns, Drugs, and Money . .12 Number 3 By Jason F. Cunningham and Sharon R. Kimball United States Sex Trafficking and Gangs: A Deliberate Approach . 18 Department of Justice Executive Office for By Adrian L. Brown United States Attorneys Washington, DC 20530 Gangs and White Collar Crime . 24 Monty Wilkinson By Stephen Kubiatowski Director Contributors’ opinions and statements La Vida Loca Nationwide: Prosecuting Sureño Gangs Beyond Los should not be considered an Angeles . 26 endorsement by EOUSA for any policy, program, or service By Seth Adam Meinero The United States Attorneys’ Bulletin is published pursuant to DOJ International Resources: Advice and Assistance on Criminal 28 CFR § 0 22(b) Gang Issues and Capacity Building . 36 The United States Attorneys’ Bulletin By Kevin L. Sundwall is published bimonthly by the Executive Office for United States Attorneys, Office of Legal Education, 1620 Pendleton Street, Expert Codebreakers in Court . 41 Columbia, South Carolina 29201 By Jeanne Anderson Managing Editor Using “Digital Fingerprints” (or Hash Values) for Investigations and Jim Donovan Cases Involving Electronic Evidence . 44 Associate Editor Carmel Matin By Ovie Carroll and Mark L. Krotoski Law Clerk Jennifer Jokerst Snitches Get Stitches: Combating Witness Intimidation in Gang- Related Prosecutions . 83 Internet Address www usdoj gov/usao/ By Linda A. Seabrook and Jelahn Stewart reading_room/foiamanuals html Developing a Step-by-Step Application of the New Orleans Strategy Send article submissions and address changes to to Combat Violent Street Crews in a Focused Deterrence Strategy 90 Managing Editor, By K. Tate Chambers United States Attorneys’ Bulletin, National Advocacy Center, Office of Legal Education, 1620 Pendleton Street, Reentry Efforts and Gangs: Project GRIP . 96 Columbia, SC 29201 By David L. Smith and Gretchen C. F. Shappert Indicia of Association: Using Indicia Search Warrants in Gang Prosecutions Gretchen C. F. Shappert Assistant Director Indian, Violent and Cyber Crime Staff Office of Legal and Victim Programs Executive Office for United States Attorneys I. Introduction The prosecution of criminal gangs is oftentimes premised upon evidence that gang members participated in a criminal organization—either a conspiracy or racketeering enterprise—with a shared identity and criminal purpose. The U.S. Constitution prohibits the criminalizing of mere association with a particular organization. See Scales v. United States, 367 U.S. 203, 225 (1961). However, association with a group of individuals engaged in criminal activity is not protected conduct and, indeed, may implicate federal criminal law. In order to establish the existence of a criminal gang, prosecutors frequently rely on search warrants to collect evidence of the criminal gang’s organizational structure, membership, and of the criminal activity conducted by gang members. Indicia search warrants are frequently used in biker gang investigations to collect indicia of affiliation, such as items bearing the logo or symbol of the biker gang—the leather jackets (colors), vests, belts, jewelry, plaques, t-shirts, tattoo stencils, hats, photographs, membership lists, club or gang documentation, calendars, clocks, or motorcycles. See generally United States v. McConney, 728 F.2d 1195, 1198 (9th Cir. 1984) (en banc) (affirming conviction involving an indicia search warrant that authorized search and seizure of indicia of membership in or association with the Hell’s Angels Motorcycle Club), overruled on other grounds by Estate of Merchant v. Comm’r, 947 F.2d 1390, 1392– 93 (9th Cir. 1991). Indicia search warrants are powerful tools that can be used to establish compelling evidence of the defendants’ membership in a gang or enterprise. Indicia search warrants can also facilitate the collection of evidence to support the Government’s contention that the defendants’ association in the gang or enterprise was, at least in part, for purposes of criminal activity. However, the use of these warrants may raise unique First and Fourth Amendment issues for both prosecutors and agents. II. Probable cause: the particularity of items to be seized and “scrupulous exactitude” Two related cases from the District of Nebraska highlight the exactitude required when drafting indicia search warrants. United States v. Apker, 705 F.2d 293 (8th Cir. 1983), involved the prosecution of three members of the Hell’s Angels of Omaha and the widow of a Hell’s Angels member. The four were indicted, along with six other individuals, on conspiracy charges that alleged that the Hell Angels attempted to gain a monopoly on the methamphetamine traffic in Omaha and used threats, beatings, torture, and murder against competitors in the drug trade. Ten days after the indictment was returned, indicia search warrants were issued for premises of some of the Club associates, including the four defendants. “The indicia [search] warrants did not authorize the seizure of contraband or fruits or instrumentalities of crime[.]” Id. at 296. Rather, the search warrants “authorized the seizure of indicia of membership in the Hell’s Angels [Motorcycle Club].” Id. MAY 2014 United States Attorneys’ Bulletin 1 All the indicia search warrants were identical in their description of items to be seized. The affidavits supporting the search warrants stated that the indicia were necessary to prove the defendants’ association with the Hell’s Angels and their involvement in the Hell’s Angels drug conspiracy. The description of items to be seized included: plaques, mirrors, and other items bearing the names of Hell’s Angels members; sleeveless leather and jean jackets with a Death’s Head insignia; “Hell’s Angels” written above the Death’s Head and “Nebraska” written beneath; a “Hell’s Angels” belt buckle; photos depicting association with Hell’s Angels members; telephone books and phone numbers of Hell’s Angels local and national members; “papers relating to Club activities, including expenditures, financial records, Club rules and regulations;” and red t-shirts emblazoned with “Hell’s Angels.” Id. When the indicia search warrants were executed, guns and drugs were confiscated at the various search locations. A superseding indictment was subsequently returned, and all four defendants were convicted of various drug and gun offenses. All four appealed, raising constitutional challenges to the use of indicia search warrants. Id. at 296–97. The issues raised were matters of first impression for the Eighth Circuit. In its consideration of the validity of the indicia search warrants, the Eighth Circuit noted that, to the best of its knowledge, indicia search warrants had been used only once before in a federal case, in the 1979 racketeering prosecution of the California Hell’s Angels. Only one prior appellate court decision, United States v. Chesher, 678 F.2d 1353 (9th Cir. 1982), discussed the indicia search warrants, but Chesher was decided on an issue not raised in the Apker case. Apker, 705 F.2d at 297. See Chesher, 678 at 1362–64 (holding that defendant was entitled to a hearing on the issue of whether probable cause for issuance of an indicia warrant was based upon a recklessly false statement that defendant was a current member of the motorcycle club and that “[i]f [defendant] does not prevail at the hearing, he may then raise again the challenges to the indicia warrant that we need not reach at this time”). Hence, the Apker court reasoned that it was “largely writing on a clean slate.” Apker, 705 F.2d at 297. The appellants in Apker argued that the indicia search warrants were invalid because they violated both the First and the Fourth Amendments to the Constitution. With regard to the Fourth Amendment, appellants made four arguments: (1) membership in a legal organization, such as Hell’s Angels, cannot provide an adequate basis for a search because “there is not a sufficient nexus between the evidence sought and the crime being investigated,” (2) the indicia warrants “failed to describe the [items] to be seized with sufficient particularity” and, therefore, amounted to no more than general warrants, (3) the affidavit in support of the search warrants “did not establish probable cause to believe that there would be indicia of membership in the Hell’s Angels at the searched premises,” and (4) “the indicia warrants were obtained as a pretext to search for guns and drugs.” Id. The Eighth Circuit began its analysis by citing the well-settled rule that searches are “not limited to instrumentalities or fruits of crime or contraband.” Id. at 298. Searches may include “mere evidence” of a crime where there is a sufficient nexus between the items seized and criminal conduct. The issue for the warrant-issuing magistrate is “whether there is probable cause to believe that the evidence sought will ‘aid in a particular apprehension or conviction.’ ” Id. (quoting Warden v. Hayden, 387 U.S. 294, 307 (1967)). The Government argued that appellants’ membership in the Hell’s Angels “tend[ed] to show their association with each other in support of the conspiracy charge.” Id. Furthermore, proof of membership helped “establish the charge in the indictment that appellants and others used the Hell’s Angels [Motorcycle Club] for criminal activity, i.e., controlling the methamphetamine traffic in Omaha.” Id. The Eighth Circuit noted that establishing membership in the Hell’s Angels
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