agingrebel.com.
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.
