Wednesday, May 7, 2008 | After 96 people, including several fraternity brothers, were arrested for selling cocaine, ecstacy and marijuana in and around San Diego State University, prosecutors were faced with an important question: Are fraternity members who engage in criminal activities, in legal terms, also essentially gang members engaging in gang crime?

The answer to that question could be a crucial point in the prosecution of the dozens of university students arrested in the wake of an extensive undercover investigation at the university.

Proving that the alleged fraternity drug dealers’ crimes meet the statutory definition of gang-related crimes would add tremendous weight to the prosecutors’ case and could greatly increase the sentences handed out with any guilty verdicts,

Damon Mosler, chief of the San Diego District Attorney’s Major Narcotics Unit and the lead prosecutor on the SDSU case, said Tuesday that it’s too soon to pin down the extent and scope of the charges that will be brought against the students and other suspects arrested in the drug sting.

No gang charges have been brought against any of the individuals arrested, Mosler said. But he did not rule out bringing gang charges against the fraternity members allegedly involved in dealing drugs.

“I’m going to take a look at it, this could be kind of fun,” he said.

Stuart Henry, a professor of criminal justice and director of the School of Public Affairs at San Diego State University, said the California statute under which street gangs are defined, California Penal Code section 186.22, is very loosely worded.

The statute defines criminal street gangs as:

“Any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts [contained in the statute] having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”

Because fraternities identify under a “common sign or symbol” — the Greek letters denoting the fraternity’s name — they are prime targets for what Henry calls “creative prosecution,” using the street gang definition to target groups the statute was never intended to target.

Henry said that’s certainly not a new concept.

“Organized crime has been defeated by the [most banal] of laws like tax laws or whatever, and, if that’s what’s going to happen here, this sounds like a case of taking a law designed for another purpose and applying it to this kind of activity,” Henry said.

The liberal statutory definition effectively means that almost any group in California, from a soccer team to a corporation to a fraternity, that gets involved in crime, can be branded a gang, Henry said.

Last year, when a young surfer, Emery Kauanui, was beaten and killed in La Jolla, the District Attorney’s Office brought gang charges against the group of young men who allegedly attacked him. Prosecutors allege the men, all young La Jollans, were members of a street gang called the “Bird Rock Bandits.”

Attorneys for the men accused of Kauanui’s murder, and attorneys and family members of other young men accused of gang crimes in two other prominent cases in the region, have argued that the law is overly broad. They have argued that prosecutors have taken advantage of the gang laws to unfairly prosecute individuals who are not gang members at all.

David Kennedy, director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice in New York City, said California is not unique in that respect. There exists no solid legal definition of what comprises a “gang,” in federal or state law, Kennedy said.

“Nor is there any scholarly definition that you can get a consensus around,” he said. “It’s very frustrating, both legally and intellectually.”

Kerry Steigerwalt, senior managing partner of Kerry Steigerwalt’s Pacific Law Center in La Jolla, a large firm of criminal defense attorneys, said the fraternity members arrested Tuesday could face prosecution for gang crimes both because of their association with the fraternities and because one of the non-students arrested in the sting is a documented Los Angeles gang member.

Steigerwalt said if prosecutors can show that some of the individuals arrested were associated with that gang member, Omar Castaneda, those individuals could find themselves charged with gang crimes.

“Under the gang statute, they don’t have to be members of the gang. All they have to do is be in close association with a gang member who is participating in activity to ultimately benefit the gang,” Steigerwalt said. “I gotta tell you, it would not surprise me if gang enhancements are charged.”

Steigerwalt said in order to brand the university fraternities as street gangs, prosecutors would have to show that their alleged criminal activity benefited the fraternity as an organization. That would mean prosecutors have to prove some of the money raised in the alleged drug dealing went to pay fraternity costs, like rent on a fraternity house or paying for parties or fraternity trips, Steigerwalt said.

That’s if the district attorney even chooses to file gang charges. Mosler said he and his team have a long way to go before they ascertain whether gang enhancements are warranted in the case.

“One of the major differences here is that the Bird Rock Bandits were committing other criminal acts,” Mosley said. “I know that members of Theta Chi were selling drugs, but only for a short time, and I’d have to show they were doing that for the betterment of the fraternity.”

Correction: The original version of this story stated that 96 people were arrested on Tuesday. There were 96 people arrested during the entire five-month-long undercover investigation, but only 18 students were actually arrested on Tuesday. We regret the error.

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