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Friday, July 14, 2017

F.Y.I. - Mongols Case To Continue

A three judge panel of the United States Court of Appeals for the Ninth Circuit reversed the dismissal of the Justice Department’s racketeering case against the Mongols Motorcycle Club today. The case will now return to the Orange County, California courtroom of District Judge David O. Carter for trial.
The case is the most recent iteration of the federal government’s $100 million dollar, decade long argument that federal policemen may ban motorcycle clubs and their insignia without violating the United States Constitution. There is significant case law that recognizes motorcycle club insignia to be constitutionally protected expression.
The federal government first tried to confiscate the Mongols identifying “collective membership marks,” including the name Mongols and a patch that depicts Genghis Khan riding a motorcycle, as part of the 2008 case United States versus Cavazos and others. The “Cavazos” in the case title was former Mongols president Ruben “Doc” Cavazos who had trademarked the Mongols membership mark through a corporation he personally owned. Cavazos was expelled from the club two months before the indictment was unsealed and immediately agreed to cooperate with prosecutors. As part of his plea deal, Cavazos agreed to forfeit the Mongols insignia to the government.

Off His Back

At the time the indictment was unsealed, a United States Attorney named Thomas P. O’Brien bragged, “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, 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.”
A Mongol named Ramon Rivera, who was not indicted in the case, sued for the right to wear his patch and won. But the same prosecutors who brought the Cavazos case, Assistant U.S. Attorneys Christopher Brunwin and Steven Welk, have continued to fight to seize the Mongols colors.
Carter’s dismissal of their case and the Ninth Circuits reversal of that dismissal is based on semantics. In order to successfully bring a case under the Racketeer Influenced and Corrupt Organizations Act the government had to prove that the “Mongols Nation, an Unincorporated Association” and the “Mongols Gang” were separate and distinct entities. Prosecutors argued that the “Mongols Gang” was a criminal enterprise and that “Mongols Nation” was a group of people associated with the “gang.”

Eyes Glaze Over

In Carter’s court, the debate over their distinctness involved questions such as whether hang arounds, prospects, wives and children were part of the Mongols Nation or the Mongols Gang and whether all patched, full members of the Mongols were part of Mongols Nation or the Mongols Gang.Throughout a series of preliminary herings, Carter asked prosecutors, “Who goes to jail?”
After considering the motion for dismissal over most of a summer, Carter eventually ruled that “there is no meaningful distinction between the association Mongol Nation and the enterprise of the Mongols Gang.”
That ruling is what the Ninth Circuit overruled today. “The district court erred in concluding that Mongol Nation and the Mongols Gang are not sufficiently distinct,” the panel ruled in an unsigned memorandum decision that cannot be cited as a precedent.
“The indictment charged Mongol Nation, an unincorporated association comprised of ‘official’ or ‘full-patch’ members of the Mongols Gang, as a RICO ‘person.’ The alleged RICO ‘enterprise,’ the Mongols Gang, is comprised of both Mongol Nation, i.e., the Mongols Gang’s official or full-patch members, and various associates…. Mongol Nation is a subset of the alleged enterprise, which consists of legally distinct and separate persons in addition to the Defendant…. Mongol Nation was alleged to be part of a larger whole, the Mongols Gang, which is comprised of additional individuals who together form the alleged enterprise, the district court erred by dismissing the indictment on distinctiveness grounds.”

Case Continues

Joseph Yanny, the Mongols attorney in this case had also argued that the whole point was to try to seize the Mongols membership marks. It is, in fact, the truth. It was suggested to prosecutors in open court as a way to do just that by a federal judge named Otis D. Wright II. After the case lingered for years, Wright got cold feet and abruptly recused himself. That was how the case wound up in Carter’s court. But the appeals judges thought that was irrelevant.
Some secret one of them wrote, “argument that remand will prove ‘futile’ because the government cannot obtain forfeiture of trademarks registered to Mongol Nation is unpersuasive. It would be premature to address whether the government will ultimately be able to secure forfeiture under (RICO) as part of the sentence in the event that the Defendant is convicted.”
So the case continues. And the Mongols legal bills grow. Which is now the actual point of the government’s case.