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Saturday, October 31, 2015

A Win is a Win, Unless It's Against the Feds

by Tony Sanfelipo
Posted on Oct 29, 2015
If you subscribe to our free Bikers Newbrief publication, you read in the Fall 2015 edition that the Mongols motorcycle club has been fighting to retain ownership of the club logo since October, 2008, when 80 members were rounded up in a sting operation.  The federal government has listed the Mongols MC as a criminal enterprise and has been trying to move forward with forfeiture proceedings to eliminate the club's signature mark, known as "colors".
A trial back in 2008 (United States vs. Cavazos) had the former club president, Ruben Cavazos, cooperating with authorities as they painted the Mongols as a criminal enterprise, with the club colors as the big prize. The judge didn't buy that argument, ruling the trademark logo belonged to the organization, not individuals, and as a collective membership mark it was protected speech under the First Amendment.

The government appealed, and for the last eight years, it has been a battle of strategies, delays and change of judges. Finally a trial date was set for October, and the high stakes included keeping the club colors and also asking that the prosecutors be held personally liable for some of the clubs legal fees, since it appeared they were purposely delaying the case while running up the club's financial burden for defense.

Not too surprisingly to this reporter, the court again ruled in favor of the Mongols and seemed to put this matter to rest, once and for all.  Oh wait, this is the government we're talking about and they hate to lose. So, it appears there may be a round three coming up, as U.S. Attorney Christopher Brunwin has indicated he would appeal the decision.  Stay tuned: apparently the fat lady hasn't sung yet.

Yesterday afternoon, just under the 30-day legal deadline, Assistant United States Attorney Christopher Brunwin gave notice that he was going to appeal the dismissal of a case called United States versus Mongols Nation.
A month ago, Federal District Judge David O. Carter dismissed the October 2013 indictment that was the basis for the Mongols Nation case and Brunwin is appealing that decision. Brunwin hasn’t yet filed a brief in the appeal. He is simply announcing that he thinks Carter’s 23 page ruling contains reversible legal errors. Notice of appeal in a federal court is usually made within ten days of a ruling.
The appeal will be made to the Ninth Circuit Court. Appeals to the Ninth Circuit are the slowest in the federal system. The average time between notice of appeal and a judgment is about 18 months. About 75 percent of all appeals to the Ninth are decided solely on the basis of briefs submitted by the opposing lawyers without legal argument. The Mongols are represented by Los Angeles attorneys Joe Yanny and Elliot H. Min. For the last seven years, Brunwin’s co-counsel in the crusade against the Mongols has been Stephen R. Welk. Welk is the head of the asset forfeiture division of the U.S. Attorney’s office for the Central District of California.
Appeals are expensive and the decision to appeal Carter’s dismissal would not have been made by either Brunwin or Welk. The decision to appeal would have been made by either Central District of California U.S. Attorney Eileen Decker or someone higher in the chain of command in the Justice Department. Decker is a former Los Angeles Deputy Mayor who assumed her current job three and a half months ago.

The Clothes Police

The most recent racketeering case against the Mongols began with a case called U.S. versus Cavazos et al. in October 2008. Brunwin indicted 79 members of the Mongols Motorcycle Club and the press release that announced the indictment contained this astounding passage:
“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,’ said United States Attorney Thomas P. O’Brien. ‘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.’”
Taking the jacket right off the backs of Mongols has become a quest for the Department of Justice. As has harassing the Mongols with legal proceedings.

Not Constitutional Issue

The constitutional issue of seizing the Mongols’ name and symbols seems well resolved. Unless the name and symbols pose a real threat to somebody other than Brunwin, Welk and Decker they are legal expressions of opinion. Brunwin, Welk and Decker know it so the government has been playing cute games around that issue for years.
The point of the recent, Mongols Nation case has always been to seize the Mongols patch and, in turn, the patches of every other motorcycle club. It is a recurring theme in the global war on motorcycle clubs. Various states in Australia, depending heavily on the coaching of “motorcycle gang experts” from the American Bureau of Alcohol, Tobacco, Firearms and Explosives have actually banned the display of motorcycle club insignia. In Waco, Texas, a local prosecutor named Abel Reyna ordered the arrest of scores of people on the basis of the symbols they wore even though there was absolutely no proof that any of them had committed any crime.
In the Mongols Nation case, Brunwin and Welk sought a trial to prove that the Mongols Motorcycle Club was a criminal enterprise that used its insignia for criminal purposes. The government’s plan was to first, convict the club as a whole for racketeering and then start forfeiture proceedings to seize the club’s name and patch. At the risk of oversimplification, Carter didn’t allow the case to proceed because “nobody was going to jail.” He ruled that the government couldn’t indict the Mongols as an “enterprise” for racketeering without also indicting a group who can be actually punished. He wrote that the government had made “no meaningful distinction between the association Mongol Nation and the enterprise of the Mongols Gang,” So with nobody to punish, there could be no case. It was as if the government had indicted the stars or the sea.
But, after eight years, the government still won’t give up. The quest continues.

Sometime in the next month or so, Brunwin will write a brief that explains the errors in Judge Carter’s reasoning. Until then, the only thing that is certain is that the government does not intend to stop until some judge somewhere rules that police can actually detain you for your fashion choices and if the police don’t approve of them they can literally rip your clothes off.