The admonishment by Senior U.S. District Judge David Ezra came after a federal agent mentioned a television news clip that said Bandidos had attacked members of the Cossacks Motorcycle Club at a bar in Port Aransas in August 2015.
Outside the presence of the jury a day earlier, the judge had barred mention of that TV clip, agreeing with defense lawyers that it contained inadmissible hearsay.
“I will warn the government that when I rule about not mentioning something, counsel needs to be much more careful about the types of questions counsel asks, particularly where the court ruled the testimony needs to be avoided,” Ezra said outside the presence of jurors on Tuesday.
The issue momentarily stalled Tuesday’s testimony and came as U.S. Drug Enforcement Administration agent Chad Lloyd gave his explanation of recordings of body wires worn by confidential sources or wiretapped phone calls of one of the defendants, former Bandidos vice president John Xavier Portillo. Portillo is on trial with former Bandidos president Jeffrey Fay Pike.
On Monday, one of the Cossacks’ wives, Nena Jackson, testified about being assaulted while the pair were on vacation with other Cossacks in Port Aransas in Aug. 22, 2015. Jackson said she did not know who the assailants were, but that one said the attack was “for the ones we lost in Waco.”
Recordings that assistant U.S. attorneys Eric Fuchs and John Gibson played for jurors show members of the Bandidos appear to talk about the Port Aransas incident as payback for the infamous deadly biker shootout at a Twin Peaks restaurant in Waco in May 2015, where one Bandido and seven Cossacks were killed.
In a call from Portillo with Justin Forster, a former national sergeant-at-arms for the Bandidos after that meeting, Portillo says: “I was talking to the general manger. He said ‘play ball’...(and) batter up, (expletive).”
Lloyd said Portillo is referring to Pike approving a plan to use violence on the Cossacks if they are found in Crystal City. None were found. While Lloyd was still on the stand, the prosecutors also played a recording from a body wire worn by Raul Puente, a former president of the Bandidos’ Northeast San Antonio chapter. Lloyd was asked about what Puente discussed with Portillo in that recording, including a reference to a link Puente had been sent by other Bandidos.
Lloyd said that the link was a television news report about the Bandidos that attacked the Cossacks at Port Aransas, and it drew objections from Portillo’s lead lawyer, Mark Stevens, and Pike’s attorney, Dick DeGuerin.
Outside the presence of the jury later, DeGuerin claimed that Lloyd intentionally sidestepped the judge’s ruling from a day before, and that it was harmful to the defense. He and Stevens moved for a mistrial.
“I don’t believe this was intentional, and I don’t think this is harmful,” Ezra said. “If this were intentional, I would declare a mistrial. And if I declared a mistrial, predicated on prosecutor misconduct, the defendants could not be retried.”
The judge noted jurors had already heard “all kinds of” testimony about violent acts taken by Bandidos in advance of a criminal enterprise, including murder. And, he added, the Port Aransas issue is a minor part of that. But he also cautioned the agent and prosecution.
“Should this have been said? I agree with you. No, it shouldn’t have,” Ezra told the defense. “Does it rise to the level that it needs a mistrial? Absolutely not. Not even close.”
And should the defendants get convicted, the judge added, “you can raise it on appeal, but you better have something stronger than this to carry the day.” After bringing the jury back in, the judge reiterated that Lloyd’s testimony about the TV clip be stricken from the record and that jurors are to disregard it.
“This so-called clip is worthless as evidence in this court,” the judge said. “It has no value at all, and you are to disregard it entirely. I’m not telling you you can’t consider other matters, but that was a mistake and it should be disregarded.”
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