agingrebel.com
There is an important hearing this Thursday in the Mongol Nation case.
The court – the court is fellow named The Honorable David O. Carter – will hear arguments on three issues.
The first issue is whether this entire
case is built on rock or sand. The government has argued that the turn
of phrase “Mongol Nation” is an actual thing rather than a term of
affinity. What the government successfully convinced a jury last
December was that the Dodgers baseball team lost the World Series at the
direction of Dodgers Nation. Mongol Nation is something both
prosecutors and Mongols like to say. But it a phrase with many meanings.
The government’s audacity in this case has been to insist that Mongol
Nation means what the prosecutors say it means.
The second issue is whether an entity –
an abstraction that exists in your heart and your mind – can be guilty
of drug dealing and murder. The government’s case, as briefly stated as
possible, is that “an unincorporated association” called Mongol Nation
acting on behalf of the Mongols Motorcycle Club, is guilty of
racketeering. Two government prosecutors named Steven Welk and
Christopher Brunwin double talked a jury into agreeing to this.
Regardless of what the jury found
“Mongol Nation” guilty of, it has been Mongols Motorcycle Club president
David Santillan who has had to sit in court and listen to this bullshit
for years. The Mongols Motorcycle Club is the actual defendant. And
Mongols attorney Joe Yanny hopes a couple of motions he has filed,
exposing the sand under the government’s splendid monument to sophistry,
will put a stop to this case.
“If you can’t burn in hell you aren’t
guilty of the sin,” is how Yanny likes to put it. The point of this case
has never been to punish a wrongdoer. The point of this case for the
last ten years has been to outlaw the rebellious, anti-authoritarian,
peculiarly American phenomena of outlaw motorcycle clubs.
Yanny hopes that Carter, possibly as
early as this Thursday, will recognize the absurdities in the
prosecution and declare Mongol Nation innocent.
Constitutional Issues
If he does not, the issue of whether the
government can seize the Mongols Motorcycle Club’s insignia will depend
on Carter’s comprehension of the evermore faded, tattered and ambiguous
Constitution of the United States.
The Constitution may bear heavily on any judge. Carter tried to lighten his load six weeks ago by soliciting amicus curiae briefs (or friends of the court briefs) from interested members of the public.
Carter wanted opinions on:
“Whether criminal forfeiture of any and
all legal and equitable rights of any kind or nature associated with or
appurtenant to a collective membership mark violates the First Amendment
to the United States Constitution.”
“Whether forfeiture of a collective membership mark is feasible under intellectual property law.”
And, “Whether an unincorporated association is legally capable of committing the crimes of murder and/or attempted murder.”
Since you are reading this, there is a
chance you care about this case. Not that many people are reading this.
Not as many people care about this case as you might think. Which might
be part of the problem.
Eventually five briefs floated in. Two
of them support the Mongols. Two of them seem quite fatuous. And the
fifth seems to have been bought and paid for by the prosecutors.
David Loy
David Loy, who is the Legal Director for
the American Civil Liberties Union of San Diego and Imperial Counties
in Southern California, wrote one the briefs that disapproves of prosecutors outlawing symbols common to well-known bad people. Loy fought and won a case titled
Ramon Rivera versus Ronnie A. Carter, Acting Director, Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF); John A. Torres, Special
Agent in Charge, ATF Los Angeles Field Division; and Eric H. Holder,
United States Attorney General against the same prosecutors, Welk and Brunwin, who brought this case. Rivera
was a Mongol who fought for the right to wear his patch. The
government, with unlimited resources, fought Loy every step. He won
anyway. Welk tried to keep the courts from reimbursing Loy for his time.
Loy won that fight, too.
Writing about Mongol Nation
last month Loy said, “The government certainly can’t prohibit people
from wearing shirts or buttons supporting the Democratic Party, Black
Lives Matter, or the National Rifle Association – and it can’t prohibit
people from wearing the Mongols logo either.”
Taylor And Tinkham
A pair of Midwestern lawyers named
Rodney V. Taylor and George W. Tinkham contributed an insightful brief.
They both ride motorcycles and they both work for ABATE of Illinois.
ABATE, is the original bikers’ rights organization. It was formed by members of the Hells Angels and Easyriders Magazine
to protest helmet laws in 1971. The name was originally an acronym for
“A Brotherhood Against Totalitarian Enactments.” ABATE, or Abate, or
A.B.A.T.E., is now generally understood to mean “A Brotherhood Aimed
Toward Education.
Taylor also serves as general counsel to
ABATE of Indiana and ABATE of Ohio. He is a well-known philanthropist
and he was appointed Sagamore of the Wabash in 2007 by Indiana Governor
Mitch Daniels.
They write:
“In response to the Court’s invitation, Amici propose addressing two questions:
“1. Whether criminal forfeiture of any
and all legal and equitable rights of any kind or nature associated with
or appurtenant to a collective membership mark violates the First
Amendment to the United States Constitution,
“and 2. Whether criminal forfeiture of a
collective membership mark violates the due process rights of
individual members of a collective.
“The answer to both of these important questions is an unequivocal yes.
“The forfeiture urged by the Government
impermissibly infringes on vital Constitutional rights of members of
Mongol Nation and the broader rights of motorcyclists everywhere. Those
rights that would be infringed include, but are not limited to, rights
possessed by citizens and recognized under the First, Fifth, and
Fourteenth Amendments to the Constitution of the United States of
America.
“The mark in question has been
well-described in this matter: the caricature of a Mongolian warrior
with top-knot and sword, mounted on a motorcycle. The word ‘Mongol’
appears in block letter above the image. The mark is used in a number of
ways to identify those with permission to use it. Most prominently, the
mark is featured as a large patch on the back of leather jackets or
vests worn by motorcyclists. However, the mark may also be used on
shirts, smaller patches, and other items, as well as being incorporated
into tattoos. Additionally, the mark, or variations on it, are used by
people who are supporters, but not members, of the club.
“The display of such logos and insignia
by club members and supporters is a protected expression under the First
Amendment, since it communicates the wearer’s association with, or
support of, the club. Use of the mark helps identify members and
supporters and helps those members and supporters identify with each
other. As such, the marks are an expression of the users’ position on
any number of issues, including motorcycling issues, and use of the
marks by those who have been authorized to use them is clearly a form of
speech protected by the 1st Amendment as expressive conduct.”
Rebecca Tushnet and Michael Tracy
Rebecca Tushnet is the most academically
distinguished of the court’s new friends. She is the inaugural Frank
Stanton Professor of the First Amendment at Harvard University. She
joined Harvard Law School in 2016 after teaching at Georgetown
University Law Center.
Unfortunately, no matter how full her
head may be of useful law she dares not speak any of it. Her brief is
partly titled “in support of neither party” and she seems determined to
make sure everybody knows what “trademark” means.
She displays no awareness that this is,
at its heart, a case about which symbols people may wear to a bar, and
hang in their closets, and keep photos of on their phones.
Michael L. Tracy is a labor and personal
injury lawyer in Irvine, California. He tends to litigate cases to make
money rather than to right wrongs — except in the sense that he helps
his clients who may have been sexually harassed, or slipped and fallen
in the lobby of a big building, or been possibly injured bin some way by
someone who is somehow connected to a big bank balance, get theirs. He
is one of those lawyers who doesn’t get paid until you get paid. And, if
he is to get paid, he needs court dates.
He writes he is:
“Concerned that the amount of time taken
by criminal cases such as this are impacting a crowded docket. In
reviewing the filings relating to the forfeiture, it appeared that
neither side had clearly stated what they were trying to accomplish nor
clear legal reasoning for how to accomplish it.
“Collective membership marks are a type
of trademark and can be assigned and transferred similar to other
trademarks. Prior to committing the criminal acts, Mongol Nation had the
right to license the items to its own members and keep the profit from
so doing. Because of the criminal forfeiture, those profits will now go
to the future purchaser.
“Due process will be ensured provided the RICO forfeiture statute is followed.”
It seems possible that Tracy has learned everything he knows about this case by reading the Los Angeles Times while listening to ABC7 Eyewitness News!
Stefan D. Cassella
Stefan D. Cassella, on the other hand writes as if he learned about this case in whispers, in bed, with Welk.
He is a former Deputy Chief of the
Justice Department’s Asset Forfeiture and Money Laundering Section and
was the Chief of the Asset Forfeiture and Money Laundering Section in
the U.S. Attorney’s Office in Baltimore. He “drafted many of the federal
forfeiture and money laundering statutes.”
He is currently the proprietor “of
AssetForfeitureLaw, LLC, a consulting company providing professional
services relating to the recovery of criminal proceeds and the
suppression of money laundering activity. His clients include the FBI,
the Special Inspector General for Afghanistan Reconstruction (SIGAR),
the U.S. Secret Service, the World Bank, the Department of Justice and
U.S. Attorney’s Offices, as well as financial institutions, NGOs and
private law firms. He has appeared as an expert witness in state and
foreign courts regarding the federal asset forfeiture and money
laundering laws.”
The government will probably lean
heavily on Casella’s brief if they have to appeal this case. Most
readers will be most impressed by the way he just prattles on about
“Mongol Nation” as if it was General Motors.
“Defendant Mongol Nation has objected
that there is a constitutional objection to the entry of the forfeiture
order that the Government has requested: that the forfeiture would
violate the First Amendment rights of Defendant and its members…. The
undersigned amicus submits that that there is no such bar to the entry
of the forfeiture order.”
“It is well-established that tangible
personal property that would be used to engage in expressive conduct may
be forfeited if the reason for the forfeiture is unrelated to the
content of the intended speech,” Cassella moans on. “ For example, in United States v. Any and All Radio Station Transmission Equipment,
the Ninth Circuit upheld the forfeiture of radio broadcast equipment
that the defendant used and intended to use to engage in radio
broadcasts without a license to do so. The forfeiture of the equipment,
the court said, does not implicate the First Amendment if the reason for
the forfeiture was the violation of the licensing requirement, and not
the content of the intended speech. Indeed, it is also well-established
that tangible personal property that itself contains expressive content
otherwise protected by the First Amendment may be forfeited if the
forfeiture is based not on the content of the property, but on the
connection between the property and another crime.”
“The forfeiture of the Marks in this
case does not prevent Defendant from engaging in the recreational
enjoyment of motorcycle riding, of affiliating with like-minded
enthusiasts, or of creating a new patch, insignia or other accoutrements
signaling that affiliation. It would only forbid the future use by
Mongol Nation of the particular Marks that were used in furtherance of
the drug offenses, murders and other acts of violence of which it has
been convicted.”
“Defendant’s challenge to the forfeiture
of the Marks in this case is…misplaced. Because the Marks are
intangible rights subject to forfeiture…and because the forfeiture is
unrelated to the content of the expressive nature of the Marks, and
because Defendant has the right to engage in future expressive conduct
of the same nature, albeit without the use of the particular Marks that
it used in the past to commit acts of racketeering, the forfeiture ofthe
Marks is mandatory under RICO and is not barred by the First
Amendment.”
Cassella does no reveal if, or how much, he was paid for his brief.
The case, as police are fond of saying, continues.
