Federal authorities prosecuting top national officers of the Bandidos motorcycle group in San Antonio have information that relates to the May 2015 shootout at Twin Peaks in Waco, but they will not share it with McLennan County prosecutors until after the federal trial, the U.S. attorney for the Western District of Texas said.
McLennan County District Attorney Abel Reyna filed notice Wednesday that his office is aware “of the existence of federal evidence not in its possession or control,” a development that could delay the trials of bikers charged in the Twin Peaks cases.
“This obviously complicates an already immensely complex situation,” said 19th State District Judge Ralph Strother, who last week was forced to postpone the start of a Twin Peaks case in his court after Christopher Jacob Carrizal, a Bandido, got a new attorney who needed more time to prepare.
Reyna said in his filing Wednesday that although federal authorities made no specific evidence disclosures, it is his duty under the Michael Morton Act and other statutes to make defense attorneys in the Twin Peaks cases aware that the information exists.
“Although the federal investigation was underway when that incident occurred, neither the fact of the investigation nor any information pertaining to the investigation were shared with this office,” Reyna’s filing states. “The federal indictment was obtained under seal, and it was not until it was unsealed and reported by the media that the McLennan County Criminal District Attorney’s Office became aware of the existence of the federal investigation.”
Prosecutors in the Twin Peaks cases already have delivered a massive amount of evidence to the attorneys of the 154 bikers indicted in the shootout. The Morton Act requires prosecutors to turn over all evidence, including exculpatory, mitigating and impeachment evidence, to the defense before trial.
In a letter to Reyna dated Monday that Reyna filed Wednesday with his document, U.S. Attorney Richard L. Durbin Jr. declined to release evidence from his cases in San Antonio and said his office would provide the information after the trial of three members of the Bandidos’ upper echelon.
Start of federal trial
That trial is set for August, but Durbin said it could be postponed until later this year or early next year.
“As you know, the defendants in our case include national officers of the Bandidos Outlaw Motorcycle Club,” Durbin wrote to Reyna. “The information in the possession of the Federal Bureau of Investigation and this office was obtained through court-authorized wire intercepts . . . and remains under seal and protective order entered by the U.S. District Court.”
Durbin’s letter states that Reyna asked him to disclose the evidence to Reyna’s office in a phone call March 20.
“The question that comes to mind is why is that the first time that Reyna has asked for the federal evidence?” said Dallas attorney Clint Broden, who represents local biker Matthew Clendennen.
“He told the court during one of my pretrial hearings more than a year ago that he had already asked for that information. The implication from this letter is that this was the first time he has asked for all of this. I certainly think that if he had asked for this information a year ago, we would have heard about this a year ago.”
Reyna did not return a call to his office Wednesday.
While Durbin’s office and Reyna’s office have not coordinated their efforts in the separate investigations, Durbin said his office has evidence that relates to the Twin Peaks incident.
“Because of our limited knowledge of your cases, we cannot express an opinion on whether our information would be admissible in your prosecutions, nor whether it is clearly incriminating to some of your defendants, or exculpatory of others,” Durbin wrote. “It is possible that there may be some of both given the number of defendants charged in your cases.”
While the federal indictments, which resulted in the arrests of three top Bandidos officers, include allegations from incidents before and after May 17, 2015, they do not specifically mention the Twin Peaks incident, thought to be an eruption from escalating tensions between the Bandidos and Cossacks.
“As I explained, we and federal investigators have invested considerable time to obtain evidence through complex and expensive techniques to reach the highest levels of the Bandidos organization,” Durbin wrote. “Because of the significance of this prosecution, I have no choice except to maintain control over litigation relating to that information and evidence until we have completed our prosecution.”
Seek to postpone
Broden said it is probable now that defense attorneys in the Twin Peaks cases will seek to postpone their trial settings because of the uncertainty about what federal prosecutors have that could be useful to their clients.
“They are telling us about this now on the eve of some of these trial settings, and given the speed with which the federal court operates, I don’t see that federal trial going until at least 2018,” Broden said. “That means the state cases in Waco will start maybe in 2019, assuming that the U.S. attorney would release the information then. And if those cases are appealed, an appeal would take two years, meaning you could be starting the Waco cases in 2021.”
Defense attorneys also might file motions with the federal court in San Antonio asking that the information be disclosed, he said.
“Here you are asking these defendants to choose between their rights to exculpatory evidence and their right to a speedy trial, and it is completely unfair to put a defendant to such a choice,” Broden said.
The first Twin Peaks case is set for June 5 in Waco’s 54th State District Court. Kyle Smith, 50, a Cossack from Kilgore, is the defendant.