OFF THE WIRE
agingrebel.com
Joseph A. Yanny, the Century City Attorney who now defends the Mongols Motorcycle Club in a criminal case that seeks to effectively outlaw the club and confiscate its insignia, filed a motion late Friday that seeks to disqualify Otis D. Wright II, the flagrantly partial district court judge who now presides over the matter.
The case, titled USA v. Mongol Nation, an Unincorporated Association is a do over of another racketeering case called US v. Cavazos et al. When that older case was unsealed on October 21, 2008 then United States Attorney Thomas P. O’Brien bragged:
“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,” O’Brien said. “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.”
O’Brien resigned les than a year later in the middle of an ethical scandal. He is now a defense attorney specializing in accusations of white collar crime.
Judge Cooper
Pulling the Mongols patch was unequivocally the principal point of the 2008 indictment. The indictment culminated a three year-long domestic spying operation conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives called “Operation Black Rain.” Numerous former Mongols pled guilty to Count One of the Cavazos indictment. That count alleged that the Club is a murdering, drug dealing criminal enterprise. Beyond a shadow of a doubt, the government coerced defendants in that case into pleading guilty to racketeering in order to build its case against the club as a whole. Among the confessed criminal conspirators was former club President Ruben “Doc” Cavazos who claimed ownership of the club’s trademarks and attempted to forfeit them to the government as part of his plea deal.
Cavazos was prosecuted by Assistant U.S. Attorney Christopher Brunwin who is also prosecuting Mongol Nation. The general idea was to outlaw the Mongols Motorcycle Club and then outlaw all other motorcycle clubs. A subsequent case against the Pagans Motorcycle Club titled US v. Barbeito et al. used the same argument to try to “literally take the jacket right off the” backs of Pagans whether they had been found guilty of a crime or not.
The Judge who presided over Cavazos was the late Florence Marie Cooper, an erudite and moderate jurist who was the only judge in the federal district without an undergraduate college degree. Cooper, as she would later explain to Brunwin, had been misled by prosecutors into thinking that the Mongols insignia was a tangible asset with significant monetary value. She issued a preliminary order of forfeiture of the Mongols collective membership marks in order to preserve that asset pending the outcome of the criminal case.
Cooper also presided over a related civil case awkwardly titled Ramon Rivera versus Ronnie A. Carter, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); John A. Torres, Special Agent in Charge, ATF Los Angeles Field Division; and Eric H. Holder, United States Attorney General. Rivera was a Mongols member in San Diego who was never charged let alone convicted of any crime and who objected to having to forfeit his Mongols insignia. In that case Cooper enjoined “…the Government, its officers, agents, servants, employees, and attorneys, and anyone in active concert or participation with any of the foregoing persons, from seizing, or asking or directing any other person or entity to seize, from Plaintiff any property or item bearing or displaying all or part of the collective membership mark at issue in (the case) United States v. Cavazos.”
A week later Cooper denied “the Government’s Application for Entry of Preliminary Order of Forfeiture as to Registered Trademarks, Pursuant to Guilty Plea of Ruben Cavazos.” In the same ruling Cooper also denied “the Government’s Motion for an Order Striking Motion by Movant Mongols Nation Motorcycle Club, Inc. for Amendment of Post-Indictment Restraining Order.” Briefly stated, Cooper ruled that the Mongols patch was not a “trademark” but a “collective membership mark” and was a constitutionally protected form of free expression. The issue of whether the government can arbitrarily seize a Christian cross, a Star Of David, the Masonic Square and Compasses or the Mongols logo should have been definitively settled then and would have been except that Judge Cooper died in the middle of the case. ATF officials and prosecutors publically gloated over her death because it gave them another chance to effect the prohibition of what they saw as an antisocial organization by simply hurling accusations at the nonconformists.
After Cooper’s death Cavazos was split between two other Central District of California judges, David O. Carter and Wright. That is how the embarrassingly undistinguished Wright was interjected in the Mongols mess. For the last five years Wright, a former Deputy Sheriff has so favored prosecutors that it is easy to speculate that he was exactly the incompetent judge prosecutors wanted and that he was assigned to the Mongols case because arms were twisted. It is a side of federal justice the public never sees. In a stunningly candid statement in open court, Judge Carter remarked, “If the people knew what happens here they would burn the courthouse down.”
Disqualifying Judge Wright
In a pretrial hearing last October 21, Wright was so fatuous, condescending, ignorant and hostile to Bob Bernstein, the Mongols previous attorney, that Bernstein quit the case. The Mongols’ motion for disqualification cites Judge Wright’s remarks in that hearing and attaches a full transcript of them.
Judge Wright may voluntarily withdraw from the case. If Wright does not simply withdraw the motion will be considered by Judge George H. King who is the Chief Judge for United States District Court in the Central District of California.
In addition to Wright’s disqualification, the motion filed yesterday asks the court to “order the Clerk’s office to produce all records pertaining to this case’s assignment to Judge Wright.” Yanny has also requested “that the Court to whom this motion is assigned set a hearing so that the parties may present oral argument and inspect the requested documents.”
Brunwin intends to fight against Wright’s disqualification. Yanny also writes: “Prior to filing this motion for disqualification of Judge Wright, I conferred with Assistant U.S. Attorney, Christopher Brunwin, regarding the same via conference call and follow up emails. About one week later I called Mr. Brunwin again at which time Mr. Brunwin informed me that the Government was unwilling to stipulate to the motion.”
Yanny argues that Wright’s prejudices against the Mongols fossilized after he officiated over 40 of the coerced plea deals in the Cavazos case. The Mongols lawyer writes: “Mongols Nation Motorcycle Club, LLC respectfully submits that comments, which have been memorialized in the public record, unquestionably display Judge Wright’s bias against the sole defendant in this case, the Mongols Nation Motorcycle Club, which bias was formed before properly receiving one shred of evidence in this case, regarding this defendant, as a consequence of Judge Wright’s prior exposure to the charges, proceedings and the voluntary guilty pleas of forty separate criminal defendants in a previous matter over which he presided, entitled US v. Cavazos. Those plea agreements are currently under seal, and this Defendant was not afforded the niceties of Due Process in those prior proceedings.”
“Although this Defendant has never been before this Court in trial, Judge Wright’s comments suggest that he has already found the Movant guilty of the most critical of ultimate facts regarding culpability, by virtue of a presumed association with individuals who pled guilty in the Cavazos case. Additionally, Judge Wright has already pronounced sentence with respect to this Defendant’s property rights without properly receiving on shred of evidence in the penalty of a case involving this Defendant. ‘Regrettably,’ and with all due respect to Judge Wright, Movant submits that any reasonable Citizen would conclude that Movant cannot possibly obtain a fair trial in the instant case unless Judge Wright is recused from this case. Indeed, given the persistence of Judge Wright’s obvious bias against the Mongols that is now reflected in the public record, recusal is not only required by statute, but it is necessary to ensure public confidence in the Judicial System.”
“…on October 21, 2013, it became eminently clear that Judge Wright had already pre-judged the ultimate facts of the instant criminal case regarding a defendant that had yet to appear before him at trial, present any evidence or cross examine even one witness. He was willing to do this based solely on consent decrees entered against other separate and distinct defendants who had not fully and fairly litigated their matters, but had opted – for whatever expediency – to take pleas. The record establishes that Judge Wright appears to be willing to find this separate and distinct criminal defendant guilty of being ‘a criminal enterprise’ by a presumption of guilt by association – an impermissible leap of logic. Prior to hearing any evidence regarding the defendant in this case, which the Government describes as an ‘unincorporated association’ allegedly consisting of every ‘full-patched’ member of the Club, Judge Wright explained his view of the link between this collective/organizational defendant and the plea bargains of forty individual alleged former members of the Mongols Motorcycle Club. First, the Court stated that, because of what those alleged former members pled guilty to in Judge Wright’s courtroom, the Club’s internal rules prohibiting illegal conduct among members are ‘laughable.’”
A Taste Of Wright
At the October hearing, when shown a set of Mongols bylaws that forbid club members from criminal conduct, Wright groused from the bench: “Those bylaws are a joke, and you know it. I am surprised you even mentioned it. This is a criminal enterprise as evidenced by the admissions of same by no fewer than 40 people who appeared before me. I can’t speak to the other 40 who appeared before Judge Carter. This is a dangerous enterprise.”
When Bernstein tried to argue that the Mongols Motorcycle Club might not be a criminal racket, Wright hectored Bernstein like this: “…you are saying that it is no different than them having perhaps having been Lutheran and they are of doing all these criminal things and it is just coincidental that some of them were Lutheran; right? It is not the same thing, is it? They are operating under the banner of the Mongols. It is that name, that reputation, that intimidation factor which enables them to do what they do, isn’t it?”
BERNSTEIN: I can’t….
WRIGHT: Go like that.
BERNSTEIN: I can’t answer that, your Honor.
WRIGHT: I can. I have seen them. Alright. They have all been here. I have seen them. And that is why they are fighting so hard to hang on to those colors. Those colors mean something…. If the association is convicted, relinquishment or forfeiture of those marks will be part of the sentence…. If that organization is convicted, its interest in those marks is forfeitable to the government; right?
BERNSTEIN: I don’t agree. That is the rub.
WRIGHT: You lose.
Prosecutors have not yet responded to the motion.