OFF THE WIRE
BY: Rebel
Source: agingrebel.com
Mon, Sep 27, 2010
The Mongols Motorcycle Club has won the Mongols Motorcycle Club case again. In a ruling issued September 21st and filed September 24th, Federal District Judge Otis D. Wright has ruled that the United States cannot seize the name and patch of the club.
Judge Wright ruled that his previously issued “preliminary order of forfeiture is rendered invalid.”
The issue of whether the Department of Justice and the ATF could simply steal the name and the patch of the Mongols Motorcycle Club was settled definitively in July 2009. But then Christopher Brunwin and Steven Welk, two of the prosecutors in this case, as well as the ATF Agents who had created the case, just simply refused to believe they had lost and the Mongols had won. The presiding judge then, the late Florence-Marie Cooper wrote an angry decision which stated unequivocally that the government could not seize the marks. Last week Judge Wright wrote, “United States District Court Judge Florence-Marie Cooper already ruled upon the issues relevant to this proceeding.”
In short, the prosecutors in this case have argued for two years that former Mongols president Ruben “Doc” Cavazos could forfeit the Mongols name and patch as part of his “punishment.” Two federal judges have now ruled the Mongols insignia is not Cavazos’ to give away.
Last week, Judge Wright wrote:
“Even if the Court were to accept the Government’s evidence that Ruben Cavazos controlled the use of the mark during his tenure as National President, there is no support for the notion that a defendant’s control of property belonging to a RICO enterprise is sufficient to establish a forfeitable ownership interest in the property. In addition, there is no evidence that Ruben Cavazos owned a majority interest or any interest in the Mongol Nation that would equate to an ownership interest in the mark. There is no evidence that Shotgun Productions, LLC ever used the mark as a collective membership mark – to indicate membership in an organization substantially similar to that of the Mongol Nation. The purported assignment to Shotgun Productions, LLC is therefore without legal effect. Moreover, the Government’s evidence demonstrates that the Mongol Nation began using the collective mark in approximately 1969, and either Mongol Nation or (MNMC) continues to use the mark to identify their members. (Guevara Decl. ¶ 6.) The Mongol Nation and (MNMC) by virtue of having used the collective membership mark since 1969, having registered the mark in 2005, and having continued use of the mark to identify members of the club, have acquired and maintained exclusive ownership in the collective membership mark at issue.”
Criminal Enterprise
The government has attempted to prove that the Mongols is a “criminal enterprise” by blackmailing Cavazos and more than 60 other members of the club into “confessing” that the government’s allegation is true. The weapon the government has used to force these confessions is the severe penalties provided by the RICO Act. Simply by accusing these defendants of “racketeering” the government was able to cynically manipulate the justice system. In some cases, defendants confessed only to being members or officers of the motorcycle club. The actual charges against most of the defendants were for violations of state law.
What Brunwin and the other prosecutors actually proved was that after being tortured with a RICO prosecution defendants become like prisoners of the North Vietnamese: They will confess to anything. And history may remember Brunwin for that.
In most cases the charges against defendants were either blatantly contrived or completely invented out of air. The case demonstrates the evolution of American policing. To this day, most citizens think “police work” is “solving crimes.” It is common for even cynical and bright people to still think that professional police “solve” murders, robberies and rapes. In the Mongols case, the investigators were evaluated on their ability to create crimes.
What Was Happening Here
What the government tried to do in the Mongols case was to outlaw this motorcycle club by seizing the name and the symbol club members wear on their backs – which bikers call colors. When lawyers cast their magic spells they use the Latin word indicia. Judge Carter prefers to call these expressions that Mongols wear on their backs insignia.
Effectively outlawing the Mongols by forbidding them the use of the symbols they use to identify themselves was the original point of this case. The prosecutors must have thought that seizing the indicia would be a heartbreakingly brilliant strategy to obviate Article One, Clause three of the Constitution, which is the part of the American idea that forbids guilt by association. The press release that accompanied the unsealing of the indictment gloated:
“The racketeering indictment seeks the forfeiture of the trademarked ‘Mongols’ name, which is part of the ‘patch’ members wear on their motorcycle jackets.
“‘In addition to pursuing the criminal charges set forth in the indictment, for the first time ever, we are seeking to forfeit the intellectual property of a gang,’ said United States Attorney Thomas P. O’Brien. ‘The name “Mongols,” which is part of the gang’s “patch” that members wear on their motorcycle jackets, was trademarked by the gang. The indictment alleges that this trademark is subject to forfeiture. We have filed papers seeking a court order that will prevent gang members from using or displaying the name “Mongols.” If the court grants our request for this order, then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.’”
Successfully seizing the Mongols indicia would have also allowed the ATF to forbid patch holders and their suspected sympathizers Constitutional refuge from unreasonable searches and seizures and summary punishment without due process.
It would have worked like this: Once the indicia was forfeited ATF thugs could have carried out violent searches of homes and businesses looking for the forbidden symbol. The searches were common in the summer of 2009 and the point of them was not and would not be to gather or preserve “evidence” but to summarily punish “bad guys.” Private places are routinely damaged and wrecked in these searches as a method of punishment. Children are terrorized, parents are assaulted, robbed and bullied, pets are gunned down and sometimes the targets of these searches are murdered as a form of extra-judicial summary punishment.
Judge Wright’s ruling last week is another small step to slowing all that down, too.
