Following a deadly shootout on Sunday outside of a Twin Peaks Restaurant, roughly 170 bikers were arrested in Waco. Nine people were killed and 18 others were wounded. During the shootout, both police officers and members of the motorcycle clubs were allegedly shooting. Fourteen officers were placed on administrative leave for being involved in officer-involved shootings. Roughly 170 members of motorcycle clubs that were at the scene have been arrested and could be facing capital charges, in other words charges where the death penalty could be imposed. Of this number, 115 of these had no criminal histories whatsoever. Somewhere the math doesn’t seem to add up. So how do these facts give rise to roughly 170 charges that could carry the death penalty?
The answer can be found in Penal Code Section 71.02 that sets out the elements for Engaging in Organized Crime in Texas. When the State alleges a person Engaged in Organized Crime, they are essentially accusing the person of committing a criminal offense with the intent to establish, maintain, or participate in profits of a “combination” or “criminal street gang.”
A combination is defined as three or more persons who collaborate in carrying on criminal activities. A criminal street gang is defined as three or more persons who have a common identifying sign or symbol or identifiable leadership who continuously or regularly associate in the commission of criminal activities. Profits mean property derived from proceeds obtained directly or indirectly from organized criminal activity.
Engaging in organized criminal activity with the intent to commit capital murder alleges that a person with the intent to establish, maintain, or participate in profits as a member of (as alleged here) a criminal street gang committed the offense of capital murder
The penalty is generally one category higher than the standard penalty for most serious offense committed. However, the individuals accused in Waco are already being charged at the highest offense category of a capital felony, so there is no further enhancement.
The answer for this question is the “Law of Parties.” The law of parties is set out in Texas Penal Code Section 7.02. In pertinent part, it sets out that a person is criminally responsible for the actions of another if the person acted with the intent to promote or assist the commission of an offense, the person solicited, encouraged, directed, aided or attempted to aid the commission of the offense.
Even at a surface level, it is apparent a myriad of attacks that can be made on the State’s evidence because the police officers essentially arrested everyone on the scene that appeared to be a member of a Motorcycle Club.
The Violent Crime Control and Law Enforcement Act of 1994 created 18 U.S.C.A. § 521 entitled “Criminal Street Gangs” which allows for punishment enhancements of up to ten years for the commission of certain offenses by criminal street gang members. A criminal street gang is defined as an ongoing association of five or more persons that has as one of its primary purposes the commission of certain criminal offenses, its members have engaged in a continuing series of such offenses within the past five years, and such activities affect interstate or foreign commerce. 18 U.S.C.A. § 521(a). Notice that these are punishment enhancements, so federal agents would first seek indictments on an underlying criminal offense, such as a conspiracy to distribute narcotics.
The federal government may also seek to prosecute individuals for RICO violations, or violations prosecuted under the Racketeer Influenced and Corrupt Organizations Act. RICO charges are centralized through the Organized Crime and Gang Section of the Criminal Division of the United States Attorney’s Office. One reason the federal government may pick up prosecution of serious allegations involving organized crime if the allegations consist of violations of State law, but local law enforcement officials are unlikely or unable to successfully prosecute the case, in which the federal government has a significant interest.
Whether you are looking for a federal criminal defense attorney to represent you in the United States Western District Court of Texas, or criminal defense attorneys who are experienced in handling capital murders, allegations of gang membership, and the law of parties in Texas, call the attorneys at Varghese Summersett PLLC at (817) 203-2220 or reach out online.