Tuesday, July 26, 2005 | 11:03 a.m.
CARSON CITY -- Concerned about the validity of the criminal indictment, the Nevada Supreme Court on Monday put off the trial of seven Hells Angels accused of murder and other crimes in a bloody battle in 2002 with a rival gang in Laughlin.
The court said it wanted both sides to submit more briefs on the disputed issues and it will hear additional oral arguments on Oct. 12 in Las Vegas.
The trial of the Hells Angels was scheduled to start Wednesday and the trial for the rival Mongols was set for February 2006.
The court will consider the indictments in both cases.
Defense lawyers for both motorcycle groups attacked the indictment, and two justices on the three-judge panel had questions about its legality.
The court said it wanted briefs on whether the grand jury was improperly instructed by the prosecution and whether the conspiracy charges were valid.
It also ordered the attorneys to submit briefs on whether the Clark County District Attorney's Office was required to instruct the grand jury on the issue of self-defense by gang members and whether the indictment violates a prior ruling of the Supreme Court on the theory of co-conspirators.
Attorneys for the defendants have until Aug. 15 to submit their written arguments and the district attorney's office must file their briefs by Sept. 6.
With five of the defendants sitting in the audience during Monday's hearing, the three-judge panel heard 80 minutes of arguments on whether the indictment was flawed enough to require its dismissal.
Defense attorneys Thomas Pitaro, Michael Powell and David Chesnoff told the court that it should delay the trial to more thoroughly examine the indictment, which Pitaro labeled as "Humpty Dumpty."
But Chris Owens and William Kephart, Clark County chief deputy district attorneys, argued that the indictment was clear enough to allow the defendants to know what they are charged with.
Twelve members of the Hells Angels and Mongols are charged with murder in the deaths of two Hells Angels and one Mongol at Harrah's in Laughlin in April 27, 2002. They were in town for the annual Laughlin River Run. They are also accused of battery, assault, conspiracy and aiding and abetting in the 73-count indictment.
Justice Robert Rose asked how Kenneth Dysart, a member of the Mongols, could be charged with murder when he may have started the fight by kicking a member of the rival gang.
Justice James Hardesty was concerned about how conspiracy charges could be filed against all of the defendants from both sides. He said he was "concerned" how a nonleader of the Mongols and a nonleader of the Hells Angels could enter together in a conspiracy to fight on that day.
The shooting and stabbing resulted in the deaths of Hells Angels members Robert E. Tumelty, 50, and Jeramie D. Bell, 27, and Mongol Anthony S. Barrera, 43.
In the courtroom Monday were Hells Angels defendants Sohn Regas, Calvin Schaefer, Dale Leedom and James Hannigan, seated on one side of the room, and Mongol member Roger Pinney on the other side.
Chesnoff said the grand jury indictment was "confusing."
"It is essential we know what we are defending against," Chesnoff said, adding that some gang members were in custody when two of the victims were killed and yet they are charged with murder.
He said the prosecution can't even identify who killed the Barrera.
Chesnoff argued that the district attorney's office failed to present an instruction to the grand jury on self-defense, noting that the purpose of a grand jury was not only to indict but to prevent innocent people from being charged.
Hardesty asked whether there was a constitutional right to have the self-defense instruction presented to the grand jury.
Chesnoff answered that there were cases in New York and New Jersey to back up that argument.
But Owens said the grand jury proceeding should not be turned into a mini-trial that "would open up a can of worms."
"The grand jury is not a substitute for a trial," the prosecutor said.
Owens said New York has a law for a self-defense instruction but said there is no law in Nevada. He also argued that the self-defense requirement in New Jersey has been rejected.
The melee in this case is "so convoluted, how would a grand jury make a decision" Owens said.
Besides those in the courtroom, others involved in the appeal are Mongol members Alexander Alcantar, Kenneth Dysart, Victor Ramirez and Benjamin Leyva and Hells Angels Rodney Cox, Raymond Foakes and Maurice Eunice.
The Hells Angels trial was scheduled to begin Monday, but the Supreme Court issued a writ, delaying it until Wednesday to give justices a chance to hear arguments on the indictment.
Kephart told the justices there were 75 witnesses from out-of-state including one from the Philippines and one from the Arctic Circle for the trial that is expected to last two months for the Hells Angels.
Hardesty said it makes sense that the prosecution would want to resolve the pre-trial issues before spending hundreds of thousands of dollars in bringing the witnesses to Clark County.
Kephart said the prosecution thought the issues were resolved by the ruling in District Court in Las Vegas that the indictment was sufficient to begin the trial. He said every defendant was charged with murder either as a "direct perpetrator" or aiding in the killing.
In bringing the indictment, Kephart said the prosecution picked out those who used weapons and those who started the fight. He argued the credo of both gangs was to be prepared to fight and that is how they are all charged with conspiracy.
But Pitaro argued that the indictment does not have "plain and concise facts" on what each defendant did. He said the prosecution doesn't know who killed one of the victims. The indictment lists nine counts for nine bullets fired, but he said only six casings were found.
Powell told the judges that video shown to the grand jury was cut and the jury relied on the opinion of a criminal investigator. In asking that the indictment be dismissed, Powell questioned how the conspiracy charge could be brought against two rival gangs who can't agree on anything.
Owens countered that the two motorcycle groups "were going to commit a crime."
"The goals are the same," Owens said. " They wanted to beat up the other."
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