A federal prosecutor and FBI agent might have crossed the line in seeking racketeering charges against members and associates of the Chosen Few motorcycle club, a federal judge has found.
Magistrate Judge Jeremiah J. McCarthy stopped short of accusing the prosecutor and FBI agent of "deliberately and intentionally" taking part in false testimony to a grand jury but, nevertheless, questioned their conduct.
"The evidence submitted to me thus far is troubling, to say the least," McCarthy said in a decision released Wednesday.
The judge's criticism is part of an order expanding the scope of a pretrial hearing into the conduct of FBI agents investigating the Chosen Few. The probe led to racketeering charges against 20 members and associates of the club.
The allegations of misconduct stem from the Aug. 28, 2009, grand jury testimony of FBI agent Kenneth Jensen Jr. and the questions posed to him by Assistant U.S. Attorney Anthony Bruce.
Defense lawyers contend Jensen and Bruce improperly influenced the grand jury by suggesting one of the government's key witnesses, former Chosen Few member David Ignasiak, did not participate in an attack on a rival biker.
"My understanding, Mr. Ignasiak was along for the ride but did not participate in the incident?" Bruce asked Jensen at the time.
"Yes, in a manner of speaking," Jensen answered.
McCarthy said that the government knew Ignasiak was involved in the attack on the biker from the rival Kingsmen club.
"I suspect that Bruce was motivated more by zeal for the government's position than by malice toward defendants," the judge said. "However, there are some lines which not even the most zealous prosecutor may cross."
While critical of Jensen and Bruce, McCarthy said that whether they intentionally misled the grand jury or prejudiced the outcome remained unclear.
The order also notes that other grand jury witnesses testified about Ignasiak's involvement in the assault and that Bruce and Jensen later acknowledged his role to the court.
McCarthy also raised questions about why Ignasiak was not indicted for his role in the 2008 attack on the Kingsman, saying, "if he had been, this might be a far different case."
The FBI and U.S. attorney declined to comment on McCarthy's ruling, although Bruce previously has denied any wrongdoing.
Defense lawyers, meanwhile, heralded the judge's order as a positive development for their clients.
"We're pleased the judge is continuing to examine exactly what happened in light of the claims we made," said Paul J. Cambria Jr., who represents one of the defendants.
Those claims also include allegations that the FBI and prosecutors provided misleading information to another judge, who then authorized listening devices inside the Chosen Few clubhouse in Depew.
Joseph M. LaTona, the defense lawyer who brought the motion to expand the hearing, said the judge's ruling simply is the latest step in the defense's quest to get access to the grand jury proceedings that led to the indictment of Chosen Few members and associates.
"This is just another chapter in the book," LaTona said, "but I'm happy the judge has decided to examine the grand jury proceedings."
From Day One, prosecutors have argued that the Chosen Few engaged in criminal activity ranging from assaults to firebombings.
In a related matter, McCarthy ruled that Bradley Beutler, one of the defendants in the Chosen Few case, must remain in custody. The judge cited allegations of violence and attempted violence by Beutler, including an allegation of shooting a Kingsman on Buffalo's West Side in 2005.