A 2015 shootout at the Twin Peaks restaurant in Waco, Texas resulted in a charge of “directing organized criminal activity” against Jacob “Jake” Carrizal in McClelland County Court. The prosecution claims that Carrizal is a leader of the Dallas chapter of the Bandidos motorcycle gang, and that he directed its members to bring guns to a confrontation with the Cossacks motorcycle gang. Carrizal is also charged with two counts of engaging in organized criminal activity.

To prove the more serious charge, prosecutors must prove that Carrizal directed a criminal gang to commit an assault upon members of the Cossacks. The defense contends that the Bandidos were attacked by the Cossacks and merely defended themselves. The defense also denies that the Bandidos are a criminal gang.

To prove that “organized criminal activity” occurred, the prosecution is relying on the testimony of expert witnesses. The use of police officers as gang experts has become increasingly common, but the admission of their testimony can be controversial.

The Twin Peaks Shootout

On May 17, 2015, a number of motorcyclists attended a regularly scheduled meeting of the Texas Confederation of Clubs and Independents (COC&I). The Confederation purports to focus on state and local issues, legislation, and events in that are relevant to the biker community. The Coalition has been recognized for its involvement in Motorcycle Awareness and Safety Month.

The Bandidos are active participants in COC&I. The Cossacks are not. The police theorize that the Bandidos were upset that the Cossacks were wearing bottom rocker patches signifying that their territory consisted of the State of Texas rather than specific localities within Texas. Police intelligence reports claim that groups wanting to wear a Texas bottom rocker must get permission from the Bandidos, an etiquette that the Cossacks allegedly breached.

Tensions apparently boiled over when the Bandidos, perhaps provocatively, scheduled a regional meeting of COC&I in Waco, rather than its customary location in Austin. Police allege that the Cossacks viewed Waco as a “Cossacks town” and crashed the meeting because the Bandidos were trying to establish Waco as a “Bandidos town.”

Whatever the cause of the confrontation might have been, the Bandidos and Cossacks were both represented at the Twin Peaks restaurant in ample numbers. The shooting reportedly started after a member of one club complained that the member of another club ran over his foot while he was parking his motorcycle. A fight broke out that was eventually followed by gunfire.

At least a dozen local and state police officers, including a SWAT team, were positioned outside the restaurant, conducting surveillance of the meeting. The police contributed to the gun battle, but they have refused to say how many of the nine deaths and eighteen injuries were caused by police officers. No officers were injured.

About 170 bikers were arrested for engaging in organized crime and about 154 were charged. The charge against Carrizal is the first to go to trial.

Expert Testimony

The defense challenged whether Darren Kozlowski should be allowed to testify as for the prosecution as an expert witness. Kozlowski testified that in thirty years as an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), he infiltrated three “outlaw motorcycle gangs” as an undercover agent. Kozlowski asked for television cameras to be turned off to preserve his undercover status, but pictures of his face had already been streamed live before the judge could enter that order.

Kozlowski had no direct experience with the Bandidos. The judge allowed him to testify about the general characteristics that make up an “outlaw motorcycle gang,” including their self-identification as the 1 percent of motorcyclists who are outlaws. Kozlowski was not allowed to testify about an alleged subculture of “1 percenters” who claim territories and retaliate against other bikers who fail to pay them respect. He was also not allowed to testify that gangs allegedly pool their money for a legal fund that they can use when they get into trouble.

Douglas Pearson is assigned to the ATF motorcycle task force. He also testified as a motorcycle gang expert. Pearson was allowed to present a history of the Bandidos and, rather surprisingly, was allowed to testify that 35{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all Bandidos in the country have been convicted of a felony. That testimony seems to encourage a finding of guilt by association, but it has little relevance as proof that the Bandidos belong to a criminal gang unless the convictions relate to gang activity.

Pearson testified about the significance of rocker patches worn by the Bandidos. He also testified that the Bandidos have “a rigid chain of command with an identifiable leadership structure.”

Carrizal’s attorney argued that evidence about the kind of organization the Bandidos might have been in the past did not prove that it was presently a criminal gang. The judge allowed Pearson to testify as an expert, but agreed with defense that several charts and photographs that Pearson wanted to show the jury were prejudicial or not relevant to the charges.

Pearson testified that he saw evidence on Carrizal’s cellphone that he’d told other Bandidos to “bring their tools” (guns), not to travel alone, to leave women at home, and not to tolerate disrespect. That evidence, according to Pearson, shows that Carrizal was leading the Bandidos to assault the Cossacks. Pearson admitted, however, that the Cossacks arrived at Twin Peaks wearing bulletproof vests and that they ambushed the Bandidos. That evidence might suggest that Carrizal anticipated violence and merely told club members to prepare for it.

Both Koslowski and Pearson testified that the Bandidos are a “1 percenter” gang and that they fit the ATF’s definition of a criminal street gang. On cross-examination, however, Koslowski admitted that many of those characteristics could be applied to other groups, including law enforcement agencies. Koslowski dismissed the charitable events and Christmas toy runs that the Bandidos organize as “facades.”

Gang Experts

Gang experts are becoming increasingly common as states prosecute crimes under relatively recent laws that define criminal gangs. The gang experts are invariably police officers who, like Kozlowski and Pearson, have arrested many gang members and have sometimes infiltrated gangs. Neutral observers have questioned whether police officers should be allowed to testify as “experts” in any field other than law enforcement, given their lack of training and objectivity. Sociologists study group behavior, but gang experts are not trained as sociologists.

The assumption often made by gang experts (like Kozlowski) is that all gangs are alike, so lack of experience with any particular gang doesn’t matter. Whether that assumption is based on adequate facts and whether it constitutes a reliable methodology under Daubert is questionable, but judges rarely give criminal defendants the same protection against unreliable expert testimony that they give corporate defendants in civil cases.

Gang experts routinely testify that they know gangs are “criminal gangs” — that is, organizations that exist for the purpose of committing crimes — because they have interrogated gang members who confessed that they committed crimes on behalf of the gang. Experts are sometimes allowed to testify to hearsay, but at least one judge has questioned whether hearsay testimony by gang experts violates the Confrontation Clause. The California Supreme Court recently reversed a conviction based on a gang expert’s testimony because the testimony included inadmissible hearsay, some of which violated the Confrontation Clause. If Carrizal is convicted, the prosecutor’s heavy reliance on gang expert testimony is likely to be challenged on appeal.

Update

The jurors in Carrizal’s trial deliberated for 14 hour before advising the judge that they were unable to reach a verdict. The court declared a mistrial based on the hung jury. That outcome does not bode well for the prosecution’s ability to win convictions of the remaining defendants.