A federal appeals court on Wednesday overturned the convictions of a private investigator and a retired corrections officer who were among 12 defendants indicted in the highly publicized Road Dog racketeering case.
The three-judge appellate panel determined that an FBI investigation is not an “official proceeding” under the federal statute criminalizing obstruction of justice. The panel came to that conclusion after analyzing the legal and general definitions of “official proceeding” and the context in which it was used in the federal statute.
A spokeswoman for the Sacramento office of U.S. Attorney Benjamin Wagner said Wednesday that federal prosecutors declined to comment on the court’s decision.
Gary Ermoian, the private investigator, was convicted of obstructing justice for warning Robert Holloway about an investigation against him. Stephen John Johnson, the retired corrections officer, was convicted of obstructing justice for calling Ermoian and Holloway about the pending investigation into activities at the Road Dog Cycle shop co-owned by Holloway and his son Brent.
“Not only should their convictions be reversed, but a retrial must also be barred,” according to an opinion on the panel’s decision written by Judge Diarmuid O’Scannlain and filed in federal court Wednesday.
Ermoian’s Sacramento-based attorney, John Balazs, argued in court filings that prosecutors didn’t present enough evidence to show that Ermoian “corruptly” obstructed the FBI investigation. He argued that an FBI investigation is not an “official proceeding,” which is necessary for the finding that Ermoian obstructed justice.
"Gary and I are extremely grateful that the Ninth Circuit reversed his conviction and ordered that he be acquitted," Balazs said in an e-mail. "I've always believed that Gary committed no crime."
He said Ermoian was granted bail pending his appeal and never served time in federal prison for the conviction, which has now been overturned.
Attempts by The Bee to reach Johnson’s Los Angeles-based attorney, Jerald Brainin, on Wednesday afternoon were not successful.
The filed court document begins: “The facts of this case read like an episode of the fictional television drama ‘Sons of Anarchy,’” a show that depicts the legal and illegal activities of an outlaw motorcycle gang operating in a California Central Valley town.
The investigation began when the Central Valley Gang Impact Task Force learned that the Hells Angels motorcycle gang was trying to establish a chapter in Modesto, according to O’Scannlain.
The federally funded task force of local law enforcement officials, hoping to disrupt the formation of a local gang chapter, started to look into several people they knew as Hells Angels associates, including Bob and Brent Holloway. The investigators also looked into members of the Merced chapter of the Hells Angels.
The judge wrote that earlier investigations discovered the Road Dog Cycle shop in Denair was dealing in stolen motorcycle parts, and some people associated with law enforcement were leaking information to the Holloways to facilitate their criminal enterprise.
In September 2007, the task force created a “gang intelligence bulletin” that was distributed to law enforcement officials to ferret out those leaking information to the Holloways. The bulletin purported to contain confidential information, but it actually was watered down to avoid revealing sensitive information.
The bulletin described surveillance of the annual summer “Burn-Out Party” held at Road Dog Cycle and named the different outlaw motorcycle gangs seen in attendance, according to the judge.
The task force monitored wiretaps on Holloway’s phone. The judge said the investigators learned that Ermoian called the cycle shop owner and was concerned that police soon would arrive with a search warrant, so he advised Holloway to take a look around the shop.
Later that day, the task force discovered that Johnson called Ermoian and Holloway to warn them about the pending investigation into the cycle shop.
Ermoian knew Holloway from working for Holloway’s defense attorney.
Johnson was not suspected of being affiliated with the Hells Angels. Holloway knew Johnson from his business, which subcontracted through law enforcement to perform dog-sniff searches. O’Scannlain said Johnson had been hired before to have dogs search the cycle shop for and dispose of drugs or other contraband found on the property.
Authorities raided Road Dog in 2008 and charged Holloway with running a criminal enterprise out of his shop. Holloway, a former Stanislaus County sheriff’s deputy, and his son Brent were charged in federal court with racketeering, running a chop shop, trafficking in stolen motorcycle parts and using violence to collect debts.
Both pleaded guilty to reduced charges; Bob Holloway was sentenced to four years in prison for extortion, and his son got probation and community service.
Authorities also targeted some of Holloway’s other friends and acquaintances, many of whom had law enforcement backgrounds. They accused the men of obstructing justice by, among other things, getting information on the Holloway investigation and giving it to him.
A federal jury in Fresno convicted Ermoian and Johnson, and another acquitted Dave Swanson, a Stanislaus County court bailiff who had been accused of leaking information through Ermoian to Holloway.
Bee Breaking News Editor Patty Guerra contributed to this report.
Bee staff writer Rosalio Ahumada can be reached at firstname.lastname@example.org or (209)578-2394. Follow him on Twitter @ModBeeCourts.
ROAD DOG CASE TIME LINE
February 2008: FBI agents and Central Valley Gang Impact Task Force investigators conduct two raids on Road Dog Cycle in Denair.
July 2008: Road Dog owner Bob Holloway and 11 other men are indicted on charges of racketeering and extortion. Holloway is arrested and taken into custody at the Fresno County jail.
May 2009: Raul DeLeon, a former Stanislaus County sheriff’s captain accused of conspiring with Holloway, is acquitted by a federal jury.
June 2009: Defendant Michael J. Orozco, a Manteca motorcycle club leader, pleads guilty to one count of conspiracy to collect extensions of credit by extortionate means. He is released from custody in November.
June 2009: Holloway is released to a Fresno halfway house.
June 2009: Defendant Ray Heffington pleads guilty to trafficking in stolen vehicle parts. He is released from the Fresno County jail in August. Earlier in the year, two other men arrested in connection with the Road Dog investigation, Daniel Martell and Roger Bird, pleaded guilty to being felons in possession of firearms. Martell and Bird were not defendants in the racketeering case.
July 2009: Defendant Reynaldo Sotelo pleads guilty to conspiring with Holloway to traffic in stolen motor vehicle parts.
June 2010: Bob Holloway pleads guilty to one count of racketeering, admitting he extended lines of credit to members of the Hells Angels motorcycle gang, and then used extortion to make them repay what they borrowed. His son, Brent Holloway, pleads guilty to trafficking in stolen motorcycle parts. Anthony D. Fantacone pleads guilty to a misdemeanor charge of blackmail.
August 2010: A jury finds Gary Ermoian guilty of obstruction of justice and Steven Johnson guilty of obstruction of justice and perjury; Dave Swanson is acquitted of obstruction charges.
September 2010: Brent Holloway is sentenced to four months of home detention, probation for three years and 200 hours of community service. Bob Holloway is sentenced to four years in prison, with credit for time served in the halfway house.
November 2010: Fantacone is sentenced to three years' probation and 100 hours of community service.
March 2011: U.S. District Court Judge Oliver Wanger denies Ermoian’s motions for acquittal and a new trial; Ermoian’s attorney plans an appeal.
July 2011: Steven Johnson is sentenced to 21 months in prison.