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Friday, September 18, 2015

CA - United States of America versus Mongols Nation.

After waiting for 42 days, Federal District Judge David O. Carter finally issued a dense dismissal yesterday of the Government’s most recent attempt to seize the Mongols Motorcycle Club’s name and patch – a case titled United States of America versus Mongols Nation.
Because of its numerous civil citations, the decision may actually make criminal case law. It is written very carefully in order to avoid reversal by the Ninth Circuit Court of Appeals and there is some good news and bad news in it for the Mongols. The decision is all sentences like: “Clear legal rules are difficult to discern from the morass of legal precedent addressing the distinctness requirement in the context of entity defendants.” Carter saw the key legal question in the case as the  “distinctness” between a “person” and “an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name.”
That boundary looks like a razor’s edge and unfortunately Carter is not exactly Oliver Wendell Holmes. Plainly speaking, the good news is that the government’s indictment is dismissed and will probably stay dismissed. The bad news is that it looks like the Mongols are going to have to pay their own legal fees.

Where Did This Come From

The question of whether the Mongols club was guilty as an entity of racketeering had originally been scheduled for trial last June 2 but at the last moment, five days before the trial was to start,  the presiding judge, Otis D. Wright, the man who told the government to bring this nuisance prosecution, wet himself, threw his hands in the air and ran from his courtroom literally conceding “You win.” The case was then assigned to John A. Kronstadt who tossed it to Carter within a week.
Mongols attorney Joe Yanny and Elliot H. Min had argued that the government’s case was a “pointless prosecution.” The indictment basically charged a turn of phrase with racketeering and in his decision Carter summarized Yanny and Min’s objections to it like this: “Defendant contends that the Indictment fails for three reasons. First, it raises a flurry of arguments that the forfeiture sought is invalid under trademark law and the Constitution and that the Indictment therefore fails. Second, it also asserts that the Indictment fails to state an offense because it does not allege a ‘person’ distinct from the ‘enterprise’ under 18 U.S.C. § 1962(c). Finally, Defendant argues that it is legally incapable of committing the racketeering acts set forth in the Indictment, and therefore no criminal liability can attach.”
The prosecution of the club as a whole, as anyone who has ever been arrested or sued knows, was actually a punishment in and of itself. Since October 21, 2013 when the indictment against the club was unsealed, numerous Mongols including club president David Santillan have had to make multiple appearances in court and, most significantly the club had to hire Yanny and Min and their supporting staff. The whole point of the case was to bankrupt the Mongols with legal fees. The idea of seizing the Mongols trademarks was always a cynical charade. Nobody was ever going to jail. So late in the case, Yanny filed a motion to either sanction the government or the two prosecutors who brought it – a couple of mendacious and sanctimonious bureaucrats named Christopher Brunwin and Stephen R. Welk – and force either the government or its lawyers personally to pay the cost of the legal defense.
Carter sniffed at that like this: “As a result of the Government’s allegedly spurious position, Defendant seeks sanctions against the Government for ‘selective prosecution, and bringing a frivolous, malicious, and vexatious indictment against Mongol Nation.’”


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.


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.”


Carter was more direct and to the point on the issue of whether the government will have to pay for this long ordeal by jurisprudence.
“There is insufficient evidence on the record to establish that there has been improper conduct by the Government Attorneys,” Carter wrote. “Defendant has not met its burden in establishing that the Government’s position was vexatious, frivolous, or in bad faith. The only concrete basis for this request is that this case is similar to prior actions and that the Government engaged in “judge shopping.”

Brunwin and Welk are Carter’s boys. They all work for the same company. And yesterday’s decision may not be the end of the case. The government will have ten days to appeal and the decision about whether to do so or not will be made by either the United States Attorney for the Central District of California or somebody a few pay grades above him.