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Wednesday, April 25, 2018

CA - Mongols Nation Case Dances On Pin

The Mongols Nation case, United States versus Mongol Nation: An Unincorporated Association, is scheduled for trial June 26 before District Judge David O. Carter in the Ronald Reagan Federal Courthouse in Santa Ana, California June 26.

This case is about authorizing police to rip the patches off motorcycle club members’ backs and it began, in what most human beings consider to be consensual reality, “in or about June, 2005” when an ATF Case Agent named John Ciccone convinced a member of the Mongols Camarillo chapter named T.J. Stansbury, who had been caught selling steroids by mail, to inform on his club brothers and introduce ATF undercover agents into the club. The case eventually got the public relations name “Operation Black Rain.” The investigation abruptly ended in October 2008, simultaneously with the murder of a Mongol named Manuel Vincent “Hitman” Martin. Then the investigation became a racketeering case titled U.S. v. Cavazos et al. It was named for the former Mongols president who had already been expelled from the club before the indictment was unsealed.

The Cavazos case was not cost efficient or even particularly successful. Ruben “Doc” Cavazos, for whom the case was named, had more or less promised the government the Mongols name and insignia on a silver platter. Unfortunately for the government big brains who prosecuted Cavazos, that turned out to be unconstitutional and Doc Cavazos was sentenced, in a secret hearing in a closed court, to 14 years in prison. Witnesses would later say that Ciccone laughed at him.

Eventually, the federal judge who sentenced Cavazos, Otis D. Wright II – who identified with prosecutors more strongly than with defendants – decided to give the Cavazos prosecutors a Mulligan. Following Wright’s legal instructions to a tee, the Cavazos prosecutors filed the Mongols Nation case in 2013. Wright presided over the case with an unethically heavy hand until he realized that his antics might attract the notice of the national press. On the eve of trial, he recused himself. After a misstep or two the case landed in Judge Carter’s court for reasons you don’t care about and that would only require more words to explain. (You have already had to read 325 words just to get this far into this preface – which is the reason why this prosecution ceased to be a national story long ago. Three hundred twenty-five words is, like, six normal television stories.)

To try to make a long story shorter, Carter dismissed the case on highly technical grounds – which is: “the distinction between RICO persons and RICO enterprises.” Judge Carter thought, in a decision loaded with Venn diagrams, that the government failed to make that distinction. The government appealed to the Ninth Circuit. Appeals judges love things like purely symbolic representations of legal truths, so the appeals judges overruled Carter’s dismissal.

Now, here we all are, a mere 13 years into the case. There will probably be a trial. It will probably be a jury trial, and so no one is shocked or surprised, the author of this page, Donald Charles Davis, is a consultant in the case for the defense and will probably testify for the defense at trial. If there is a trial.
But First

First the lawyers have to get through a motion hearing scheduled for May 21. So far the Mongols lawyer, Joe Yanny, has filed six motions.

One asks the court to separate the penalty phase of the trial from the issue of whether Mongols Nation is guilty of racketeering. The whole point of this case has always been to seize control of the Mongols name and insignia by way of civil forfeiture. The government thinks Yanny;s motion should “be denied.”

Another motion asks that the government to “discover” (which is lawyer talk for “stop hiding”) the evidence in its possession to the defense. The government’s reply to that is, ‘How do you know we are hiding evidence? What makes you think we haven’t given you everything? Are you saying we have a leak! Leakers should be prosecuted! Why isn’t the FBI looking into this leaker problem!?!”

Another motion asks the government to limit expert testimony. It is customary to fill motorcycle club trials with the testimony of police experts. In this case, some of those experts will probably be the same undercover ATF agents who investigated the Mongols during Operation Black Rain. One of those agents, Darrin Kozlowski, testified at the trial of Bandido Jake Carrizal last fall in Waco. Kozlowski lied during his testimony. The government, of course, objects to the defense motion.

The defense also wants Carter to forbid the prosecution from introducing evidence of what lawyers call Malum In Se crimes, which are crimes that are inherently evil like murder as opposed to crimes that merely violate some law, like the law against smoking marijuana. And Yanny wants to prohibit prejudicial statements and testimony by the prosecutors – things like the word “gang” or what red wings mean.
And Now This

But the most important of these pretrial motions so far is one that asks the court to “bifurcate the issue of whether the Mongols MC…is a legally distinct entity from the Defendant, Mongols Nation.” It is the key issue in the case and, because it is obtuse, it inoculates this case against national press coverage.

The RICO statute, which has drifted far from its original harbor, prohibits “any person employed by or associated with any enterprise” from “participating…in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” Case law has interpreted that part of the statute to mean that the RICO “person” must be distinct from the RICO “enterprise. The RICO person is the named defendant while the RICO enterprise can be either a legal entity or an association-in-fact.

In this case, the government didn’t try to prosecute the Mongols Motorcycle Club. Instead, prosecutors invented a “person” named Mongol Nation because that was what Judge Wright told them to do when he sowed the wind.

In its reply to Yanny’s motion, the government argues: “In Cedric Kushner Promotions, Ltd.v.. King, the Supreme Court held that ‘to establish liability…one must allege and prove the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name. Cedric Kushner stands for the proposition that the distinctiveness requirement is satisfied by ‘practical separateness,’ a determination that will obviously and necessarily depend upon the government’s evidence presented at trial.”

“Defendant concedes, as it must, that the appellate court’s holding established that the government properly alleged distinctiveness in the indictment. The argument defendant appears to be making – that is, that the issue of distinctiveness can be determined as an ‘independent issue’ apart from the ultimate issues relating to criminal culpability – is devoid of both substance and logic.”

Got that? That’s okay. Nobody else gets it either.

The government’s prose does not exactly sing. Its argument is medieval rather than compelling. The point of all this twisted logic seems to be to have Ciccone and Kozlowski tell a jury war stories for a couple of weeks and then let the jurors decide whether the Mongols Nation and the Mongols Motorcycle Club are legally distinct from each other or not.

People who care about legal technicalities will find out whether Judge Carter is going to let the government get away with that late next month. No doubt they await his decision as children anticipate the coming of the Easter Bunny. Everybody else stopped reading this 800 words ago.