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Thursday, May 28, 2015

CA - Mongols Case Judge Quits

Federal District Judge Otis D. Wright II abruptly quit the Mongols Nation case yesterday afternoon. Prosecutors in the case, who were forewarned of his decision, are seeking to convict the club as a racketeering enterprise and seize the club’s name and unique logo.
The racketeering case was suggested to prosecutors by Judge Wright who was then “randomly” selected to preside over it. The trial was scheduled to begin next Tuesday, June 2.
United States of America versus Mongols Nation An Unincorporated Association had already begun to attract attention from the national press. The case is newsworthy because the Mongols insignia, which lawyers call indicia, are a special kind of trademark called a “collective membership marks.” Trademarks do not enjoy full First Amendment protection but collective membership marks do. Generally, the Mongols marks would be protected from government censorship unless the government could prove that wearing a Mongols patch was a “true threat.” Both Wright and prosecutors hoped to defeat the First Amendment by proving the Mongols club was an ongoing criminal enterprise and that both its word mark and picture mark were forfeitable assets.
The United States has been trying to seize the Mongols indicia since 2008. While announcing racketeering charges against 79 Mongols in a case called United States versus Cavazos et al., former United States Attorney Thomas P. O’Brien announced:
“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.”

Plea Deals

The Mongols Nation trial would have lasted at least three months. When Wright openly encouraged Assistant United States Attorneys Christopher Brunwin and Steven Welk to pursue a racketeering indictment against the club as a whole, he assumed the prosecutors could simply present jurors, or him, with plea deals signed by defendants. Wright and prosecutors thought those confessions, signed by men desperate to get out of jail and get on with their lives, would be all the proof anyone would need to find that the entire motorcycle club was a racket. The assumption may say more about Brunwin’s, Welk’s and Wright’s competence in the law than the case could ever say about the Mongols’ alleged criminality.
Wright started looking for a way out of the hot mess he had created when Mongols attorneys Joe Yanny and Elliot Min insisted that the club had the right to confront its accusers. The defense wanted to cross examine the former Mongols about their confessions and that threatened to open the Pandora’s Box that hides the evils of federal criminal justice.
During a sometimes bizarre, 90 minute hearing Wright hypothesized how he might rule if he stuck with the case.
Wright said that if he remained in charge he would be inclined to admit numerous plea agreements coerced out of defendants in the 2008 Cavazos case, even though such agreements are generally considered to be hearsay. He thought the agreements would be important evidence because of their “voluntariness.”
When Yanny argued that “Many if not most of these (potential) witnesses are indeed innocent because they got a better deal than they were facing” by agreeing to the plea deal, Wright responded that innocent people don’t take plea deals.

The Cavazos Pleas

In fact, all the defendants in the Cavazos racketeering case were overcharged and virtually every defendant pled guilty to “conspiring to conduct and participate in the conduct of the affairs of the Mongols through a pattern of racketeering activity.” They pled guilty because that racketeering crime carried a penalty of 20 years in prison and only prosecutors, not judges, had the power to reduce the sentence. “Conspiring to conduct and participate in the conduct of the affairs of the Mongols” actually meant a wide spectrum of acts that ranged from serving as a club officer to selling drugs or guns to an undercover agent while a member of the club.
The Bureau of Alcohol, Tobacco, Firearms and Explosives, which investigated the Mongols, has always used entrapments to make racketeering cases against motorcycle clubs. In 1991, ATF Agent Steve Martin begged a member of the Warlocks Motorcycle Club in Florida to supply him with guns so he would not be murdered by “Columbians.” Gun running then became one of the principal charges leveled against that club. In 2007, a confidential informant begged a Mongol named William Owens for methamphetamine to  repay a debt. If he couldn’t obtain the drug, the informant claimed, he would be killed. So Owens, a recovering meth abuser, got his club brother the crank the informant claimed he needed to live. And, more than a year later Owens was charged with conspiracy to distribute and distribution of that drug. The amount the informant begged for was not arbitrary. It was just enough to ensure that Owens would face a mandatory ten year sentence. It was an example of what lawyers call “sentence entrapment.”  So Owens could either take a plea deal or face up to 30 years in prison as a drug dealing racketeer.
In actual praxis, except for the very affluent, federal prosecutors act as judges, jurors and executioners. Virtually no one beats the system. In 2013, 97 percent of all federal cases were resolved with a plea bargain. More than 90 percent of those who insist on inconveniencing the federal courts by demanding a trial are punished with a guilty verdict.
In an article about plea bargains in The New York Review of Books last November, U.S. District Judge Jed S. Rakoff wrote that mandatory sentences, like the mandatory sentence for racketeering or the mandatory drug sentence Owens faced, “provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains. In the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that, at the outset, she is at a considerable informational disadvantage to the prosecutor. If, as is very often the case (despite the constitutional prohibition of “excessive bail”), bail is set so high that the client is detained, the defense lawyer has only modest opportunities, within the limited visiting hours and other arduous restrictions imposed by most jails, to interview her client and find out his version of the facts.”

The Colloquy

Other federal judges laud the “plea bargaining system” because of the efficiency with which it sends people to prison. Most of the defendants in the Cavazos case remained locked up, awaiting a trial that never came, until they “confessed” that the Mongols Motorcycle Club was a racket. The logic is loony. The reasoning is that a dog that is beaten until he learns to quack is unquestionably a duck.
In yesterday’s hearing, Wright cited the lengthy “outline” of questions contained in the Benchbook for U.S. District Court. Judges – what coconspirators in the federal judge racket call the Guilty Plea Colloquy – as proof that all the guilty pleas he accepted were genuine. The reading of the colloquy at plea hearings may be the most despicable public ritual in America:
“How far did you advance in school?”
“High School.”
“And, are you aware that you may be giving up certain of your rights, like the right to vote or own a gun or serve on a jury?”
“Yeah, sure.”
The reading of the colloquy always takes at least ten minutes. Judge Wright said yesterday that the answer to the final question of the colloquy must always be true because he took up to “a half hour” with each defendant.
“And are you in fact actually guilty?”
At that recurring moment in American justice, the defendant almost always turns to his public defender, as if at the last moment his public defender might save him, as if his public defender would bother to save him even if he could, and the two always exchange whispers before the accused confesses, “Uh, yeah. I’m guilty.”
Yesterday, Wright also characterized the men who had signed the Cavazos’ plea agreements as “pigs.”
Wright said that witnesses who might testify that their formal confessions were not voluntary might face additional charges of perjury.

You Lose

Then the judge finally ran out of angry words and quit the case.
Yanny formally asked Wright to withdraw 467 days ago, on Valentine’s Day, 2014.
That motion cited Wright’s conduct when previous Mongols’ attorney Bob Bernstein asked for a dismissal of the case on October 21, 2013
Wright characterized the Mongols’ bylaws, which forbid criminal activity, as “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.”
“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,” the judge raged. “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 got as far as, “I can’t,” before Wright interrupted him.
“Go like that.”
“I can’t answer that, your Honor.”
“I can,” Wright said. “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 that organization is convicted, its interest in those marks is forfeitable to the government; right.”
Bernstein said, “I don’t agree. That is the rub.”
“You lose,” Wright told Bernstein and denied the motion for dismissal.

You Win

Yesterday, Wright confessed at length to a mostly empty courtroom, “Any reasonable person would have reason to doubt my impartiality…. I’ve got to be impartial…. Did you think I was in the pocket of the government…. I have to be biased in favor of a criminal defendant…. I care about how this court is perceived by the public…. I’m trying to gracefully move out of this thing…. I’m going to recuse myself from this case…. It looks horrible. You win. I am going to vacate the hearing on June 1 and the trial beginning on June 2.
The new presiding judge in the case will be the Honorable John Arnold Kronstadt. Kronstadt graduated from Cornell University and Yale Law School. He was appointed to the federal bench by President Obama on January 5, 2011 and confirmed by the Senate three months later. He had previously served as a Los Angeles County Superior Court judge and as an attorney in private practice. One of his specialties during his 24 years in private practice was copyright law.
No official in the United States District Court for the Central District of California could offer an estimate of what the Mongols Nation case has cost tax payers so far.