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| Constitution The big issue in this case was the constitutionality of seizing the Mongols insignia – or the insignia of any motorcycle 
club. Carter wrote: “Defendant asserts that the forfeiture sought is
impermissible under trademark law and is unconstitutional under the
First, Fifth, and Eighth Amendments of the United States Constitution.
Therefore, it argues, the Indictment should be dismissed or, in the
alternative, the forfeiture allegation should be stricken.”Citing a thicket of precedents Carter endorsed the government’s argument that forfeiture, the whole point of the case, wasn’t really the whole point of the case but merely a possibility. Welk has been arguing for six years that any ruling on the forfeitability of the Mongols trademarks before compelling
the club to defend itself in a four-month-long trial would be
“premature adjudication” and Carter seems to admire the pettifoggery in
that.Distinctness Carter did rule, however, that the government cannot indict a club as an “enterprise” for racketeering without also indicting a group who can be actually punished. That is the good news for the Mongols and other motorcycle clubs. The indictment makes “no meaningful distinction between the association Mongol Nation and the enterprise of the Mongols Gang,” Carter wrote. So Mongols Nation is off the hook. Given the extent of the war on motorcycle clubs, it seems likely that government prosecutors are poring over this dark forest of words already. But Yanny thinks the decision is “pretty bullet proof. They can’t just indict a club as a racketeering enterprise because some club members are racketeers.” That would seem to end it, but who knows what hope jaded prosecutors might take from: “Having decided the Indictment fails for lack of distinctness, the Court does not reach Defendant’s arguments concerning whether it is proper to premise liability on predicate acts an unincorporated association it is not legally capable of committing itself, including murder and attempted murder. Indictment ¶¶ 39, 41, 42, 43, 46, 47. The Court will note that the Government could identify no other case where an unincorporated association, or other entity defendant, was held liable for predicate acts of violent crime. However, as the Indictment is otherwise flawed, the Court need not reach this issue to which the parties devoted only cursory attention in the briefing.” |