http://www.sacbee.com/2013/04/
Feds seek control of Mongols Motorcycle Club’s symbol as legal weapon
By Michael Doyle
McClatchy Newspapers
By Michael Doyle McClatchy Newspapers
Last Modified: Wednesday, May. 1, 2013 - 4:18 am
Copyright 2013 McClatchy Newspapers. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
WASHINGTON -- Federal prosecutors just lost a quarter of a million dollars trying to take away the Mongols Motorcycle Club trademark. Now they’re trying again.
Revving up an unusual free-speech case, prosecutors in Southern California filed racketeering charges against the related Mongol Nation in February. No one will go to jail if prosecutors prevail in what appears to be a long-shot case. In theory, though, the federal government could end up owning the trademark that it’s been chasing for years.
“I’m not aware of any other case where the government has sought forfeiture in this way,” David Loy, the legal director of the ACLU Foundation of San Diego and Imperial Counties, said in an interview this week. “I have concerns about the case.”
Prosecutors consider the Mongols’ trademark name and logo of a ponytailed man riding a motorcycle to be signs of a criminal enterprise.
Loy and Alan Mansfield, an attorney with the San Diego-based Consumer Law Group of California, successfully challenged the Justice Department’s last effort to seize the Mongols’ trademark through the tool of asset forfeiture. Citing the government’s “unlawful action based on an ungrounded and unsubstantiated legal theory,” a federal judge also ordered the Justice Department to reimburse the attorneys $253,206.
The Justice Department quietly dropped its appeal of the judge’s order in mid-March, meaning the payment is forthcoming.
“Better late than never,” Loy said Monday. “They never should have been appealed in the first place.”
But while the department lost its earlier asset-forfeiture case, prosecutors are trying to reach a similar goal through a different route.
In an indictment filed without fanfare in February against the Mongol Nation “unincorporated association,” officials say the “enterprise” engaged in crimes ranging from murder and robbery to drug dealing and extortion. Throughout the 44-page indictment, prosecutors repeatedly cite the distinctive “patches” worn by full-fledged and probationary members of the Mongols.
“Mongols frequently used the reputation of the Mongols Gang, especially its history of large-scale violence and riots, as a means to threaten and intimidate the victims and witnesses to their crimes,” the indictment says.
The government’s new case faces several serious impediments.
The first is finding a defendant. At a court hearing in March, court records show, Justice Department attorneys said they hadn’t been able to serve legal papers on the Mongol Nation. George L. Steele, an attorney who’s represented Mongols on other intellectual property cases, said Tuesday that he doubted prosecutors would ever be able to pursue a case against such an unincorporated association.
The second problem is whether any judge will let the government seize an association’s intellectual property.
“I don’t think they can ever prevail, no matter what they do,” Steele said.
A representative for the U.S. Attorney for the Central District of California couldn’t be reached to comment Tuesday.
The Mongols are primarily a Hispanic organization based in Southern California, with chapters in other states including Florida, Pennsylvania and Washington. The group bills itself on its website as “the baddest 1 percenter motorcycle club in the world.” The term “1 percenter” is said to distinguish an outlaw club from the 99 percent of other, law-abiding motorcycle riders.
The new case against the Mongol Nation, like the previous one, seeks to apply the government’s powerful tool of asset forfeiture against an alleged criminal organization. Typically, these assets are ill-gotten gains from drug trafficking, financial fraud and other criminal activities.
Prosecutors in other cases, for instance, have reported seizing $2.9 million in cash during a Stockton, Calif., bust, more than 5,000 iPods worth $1.1 million during a Miami bust and $2.8 million worth of silver coins and bars in a Coeur d’Alene, Idaho, bust, according to the Justice Department’s most recent asset-forfeiture report.
Prosecutors first tried going after the Mongols’ trademark in 2008, when officials indicted some 80 individual Mongols on assorted criminal charges. Prosecutors said then that the trademarked name and logo were closely associated with the alleged criminal activities undertaken by members of the organization.
"If the court grants our request . . . 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,” then-U.S. Attorney Thomas O’Brien said in 2008.
A judge ultimately said the trademark forfeiture might violate the free-speech rights of Mongols who hadn’t been criminally charged and who wanted to wear their club patches.
As spelled out in the indictment made public in February, the Mongols obtained trademarks in 2005 and 2006 for the name and the image of the ponytailed motorcycle rider. After assorted legal proceedings, the trademarks are now said by prosecutors to be held by the Mongol Nation organization. The trademark-protected identity, prosecutors say, “conveyed that . . . criminal activities were being carried out on behalf of the Mongols Gang.”
Prosecutors further say that, if they win conviction of the organization on racketeering charges, they’ll seek forfeiture of all rights associated with the Mongols’ trademarks. This proposal differs from the earlier trademark-seizing effort because it’s based on indicting the organization, rather than individuals.
The organization hadn’t yet been served with the legal papers associated with the indictment, as of the most recent court filings in March, and it hasn’t filed a legal response.
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