OFF THE WIRE
agingrebel.com
A legal case named Ramon Rivera v. Ronnie Carter et al. was finally
settled yesterday after more than four years. It went on as long as it did
because the United States Department of Justice, with unlimited money, unlimited
manpower and unlimited time delayed, denied and counterattacked in order to
maliciously frustrate the interests of justice. The government took the actions
it did because its attorneys intended to use the rules of federal court
procedure to maliciously punish innocent men.
Eight days ago, on March 18, Stephen R. Welk, the Assistant U.S. Attorney who
unnecessarily prolonged this travesty of justice, finally gave up on the case
and moved to dismiss an appeal filed with the Ninth Circuit Court. Yesterday,
the Ninth Circuit dismissed the case.
At the end the argument was over whether the Rivera’s attorneys were entitled
to be paid $243,824.00 in fees, $8,642.00 in additional fees and $740.78 in
costs. Now those attorneys, David Loy of the American Civil Liberties Union and
consumer attorney Alan M. Mansfield can finally get their money.
The Mongols Case
In the Mongols case, United States versus Doc Cavazos et al., the
United States tried to outlaw membership in the Mongols Motorcycle Club by
criminalizing the use of the clubs principal identifiers, the name “Mongols” and
the Mongols center patch. The club’s former president, Ruben “Doc” Cavazos had
trademarked those two marks in the name of his corporation, Shotgun Productions.
After his arrest, and possibly before his arrest, Cavazos agreed to forfeit his
“ownership” of those two “trademarks” to the government in return for a lighter
sentence.
When Doc Cavazos made his deal is unclear because although he was not
arrested until October 21, 2008 a temporary restraining order effecting the
marks was requested by the government on October 17th. The government’s original
request asked that the court (1) proscribe subsequent sale of the Club’s Marks;
(2) enjoin use or display of the Club’s Marks by defendants in the criminal case
and “those persons in active concert or participation with them”; and (3)
authorize seizure of “all . . . materials bearing the [Club’s] trademark.”
The government originally wanted much more. And a press release issued on the
day Cavazos was arrested stated:
“’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.’”
Cooper Intervenes
For the next eight months, various federal, state and local police agencies
treated the press release as if it had the power of law and seized not simply
patches but other insignia, mementos and even personal photographs that
referenced the Mongols from numerous innocent persons – including people who
were not affiliated with the club in any way.
But under American law, Cavazos never owned the marks because they were not
trademarks. They were instead “collective membership marks.” The name Mongols
and the center patch indicated membership in the motorcycle club and belonged to
the collective membership of the club. And collective membership marks are
Constitutionally protected forms of expression – they are “free speech.”
Ramon Rivera, an unindicted Mongols patch holder from San Diego filed a civil
rights suit over the issue The judge handling the case at the time, the late
Honorable Florence Marie Cooper, ruled on both the Rivera suit and Cavazos
forfeiture of the marks that summer. She said the marks were owned by the club
and not Cavazos. Cooper also pointed out that she had been lied to by the
government.
Judge Cooper ruled on July 31, 2009 that the government had no right to
Rivera’s patch and on August 6 she ruled on the issue of Cavazos’ ownership. On
that matter she 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,”
Cooper wrote, “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 Mongols Nation, Inc. continues to use the mark to identify
their members. The Mongol Nation and Mongols Nation, Inc, 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.”
“At the June 22 hearing,” she wrote, “the Government revealed for the first
time that the mark it sought to forfeit was a collective membership mark.
Previously, in its Ex Parte Application for Post-Indictment Restraining Order,
the Government (in this case ATF Case Agent John Ciccone) referred to the mark
simply as a trademark, which was ‘purportedly for use in commerce in connection
with promoting the interests of persons interested in the recreation of riding
motorcycles.’ In contrast to commercial trademarks, which are used in commerce
and generally not entitled to full First Amendment protections, collective
membership marks are used by members of an organization to ‘indicate membership
in a union, an association, or other organization.’ The use and display of
collective membership marks therefore directly implicate the First Amendment’s
right to freedom of association. The Supreme Court has recognized that ‘implicit
in the right to engage in activities protected by the First Amendment’ is ‘a
corresponding right to associate with others in pursuit of a wide variety of
political, social, economic, educational, religious, and cultural ends.’ This
right is crucial in preventing the majority from imposing its views on groups
that would rather express other, perhaps unpopular, ideas.’ Furthermore,
clothing identifying one’s association with an organization is generally
considered expressive conduct entitled to First Amendment protection…. If speech
is noncommercial in nature, it is entitled to full First Amendment protection,
which prohibits the prior restraint and seizure of speech-related materials
without a judicial determination that the speech is harmful, unprotected, or
otherwise illegal.
“Prohibiting speech of this nature constitutes an attack on a particular
viewpoint. In Sammartano (v. First Judicial District Court, in and
for the County of Carson City) the Carson City courthouse enacted a rule to
prohibit admission of those with ‘clothing, attire or colors which have symbols,
markings or words indicating an affiliation with street gangs, biker or similar
organizations,’ because ‘such clothing or attire can be extremely disruptive and
intimidating, especially when members of different groups are in the building at
the same time.’ The Ninth Circuit reasoned that the rule singles out bikers and
similar organizations for the message their clothing is presumed to convey, and
held that the rule impermissibly discriminates against a particular point of
view – the view of biker clubs as opposed to garden clubs and gun clubs. In this
case, the Government targets an even narrower group of individuals, a single
motorcycle club. In addition, the Government has been seizing property, which
imposes a greater restriction on individual rights than the denial of access to
a public facility. Accordingly, the seizure of property bearing a Mongols
membership mark should be considered viewpoint-discriminatory. The Government’s
ability to seize property bearing the trademark acts as a prior restraint and
cannot stand without a judicial determination that the speech is harmful,
unprotected, or otherwise illegal. No such determination was ever sought by the
Government, and no such determination was ever made by the Court.”
Judges Wright And Carter
After Judge Cooper died in the middle of the Cavazos case, the
forfeiture matter was transferred to Judge Otis Wright. Wright eventually ruled:
“no amount of discovery could affect the dispositive legal issue: whether
Cavazos, or any other individual defendant, had a forfeitable ownership interest
in the Marks . . . There is no evidence that Cavazos or any other individual
member of the organization holds or ever held an ownership interest in the
Marks.”
But the government still refused to give up and eventually the issue was
decided by Judge David Carter on February 28, 2012. Carter ordered the
government to pay Loy and Mansfield for their work under a federal law called
the Equal Access to Justice Act. The government argued that the two attorneys
were asking for too much. Carter replied:
“The purpose of Equal Access to Justice Act (EAJA) ‘is to eliminate financial
disincentives for those who would defend against unjustified governmental action
and thereby to deter the unreasonable exercise of Government authority.’”
“In sum, the novelty of the government’s position did not make it
substantially justified. Rather, it took unlawful ‘action based on an ungrounded
and unsubstantiated legal theory, and without sufficient factual support.’”
“Furthermore, Counsel’s hours were reasonable given the government’s
obstinacy in continuing to litigate legal theories that have now been rejected
by all three judges to hear this case. The government could have, at any time,
spared itself the expense of Counsel’s EAJA fees by simply conceding that it was
wrong on the law. Instead, the government took advantage of the changes in
judges in this case by advancing unsupportable legal theories before each judge.
In advancing these theories, the government submitted voluminous documents
through which Counsel and the Court were forced to wade.”
The government appealed to the Ninth Circuit. Last week they finally gave up.
Today it is over. The government cannot seize the patch of any motorcycle club
without first proving that every member of the club and the club as an entity
constitute a criminal enterprise.
