HUGE WIN FOR THE PEOPLE, UPHOLDING THE 1st AMENDMENT OF THE US CONSTITUTION AND A BLOW TO GOVERNMENT TYRANNY.

OFF THE WIRE

HUGE WIN FOR THE PEOPLE, UPHOLDING THE 1st AMENDMENT OF THE US CONSTITUTION AND A BLOW TO GOVERNMENT TYRANNY.
THANK YOU JUDGE CARTER!!!!
The work is not over. The Feds WILL most certainly appeal to the 9th circuit court of appeals. But...today we have hope!

PATCH SAVED!!!
1st Amendment prohibits the forfeiture of collective marks.

Ruling VICTORY FOR ALL CLUBS! NEW

OFF THE WIRE
Judge Won’t Make Mongols Biker Gang Surrender Trademark Logo After Racketeering Conviction
A California judge delivered a blow Thursday to a decade-long effort by federal prosecutors to strip the Mongols motorcycle gang of its trademarked logo, ruling such a move would be unconstitutional.

U.S. District Court Judge David O. Carter in Santa Ana nullified a first-of-its-kind jury verdict that would have given the government control of the logo of a Mongol warrior astride a chopper-style motorcycle and two other trademarks.

Ordering forfeiture of the trademarks would violate the First Amendment rights to freedom of association and Eighth Amendment protections against excessive penalties, Carter said.

“The collective membership mark acts as a symbol that communicates a person’s association with the Mongol Nation, and his or her support for their views,” Carter wrote. “Though the symbol may at times function as a mouthpiece for unlawful or violent behavior, this is not sufficient to strip speech of its First Amendment protection.”

Mongols’ attorney Joe Yanny said the ruling was a big deal for the bikers and he criticized prosecutors for wasting millions of dollars chasing “an impossible dream by some government guy who had no respect for the constitutional rights he might be trampling.”

“It’s an attempt at collective guilt, which has never been the law here in this country,” Yanny said. “You don’t hold people guilty or punish folks simply because they know people that may be related in some fashion to people who are alleged to have done something wrong.”

Prosecutors were disappointed with the ruling and may appeal, said Thom Mrozek, spokesman for the U.S. attorney.

Prosecutors had successfully argued before a jury that the logo was core to the identity of the Los Angeles area-based gang responsible for drug dealing, beatings and murder. They argued that bikers wore the badges like armor to intimidate.

The January verdict appeared to conclude a 10-year quest that began after agents with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives infiltrated the gang and 77 members were convicted of racketeering.

In January, the jury found the Mongol Nation entity guilty of racketeering and said the group’s trademarked patches could be forfeited.

While Carter affirmed the convictions, which could carry fines at sentencing in April, he refused to give prosecutors what they had long sought.

In announcing charges in 2008, prosecutors said a forfeiture order would allow any law enforcement officer to stop a gang member and “literally take the jacket right off his back.”

Prosecutors appeared to dial back that assertion, claiming in court papers that forfeiture was “merely a procedural step divesting the Mongol Nation of its legal rights to enforce exclusive use of the symbols.” But Carter dismissed that argument as disingenuous.

“The government has lost credibility when it now suggests the sole purpose of more than a decade of prosecution is only to limit the Mongol Nation’s ability to bring infringement lawsuits against other entities,” Carter wrote.

Marsha Gentner, a trademark lawyer in Washington, said she was puzzled by what the government hoped to accomplish.

Under trademark law, the U.S. could prevent others from using the Mongol’s logos or name. They could potentially auction the rights to the trademark, though it was questionable who pay for it. If they did nothing with the trademark, it would eventually be considered abandoned and someone else could snap it up.

“This whole idea of seizing the mark,” Gentner said, “it just was not well thought out.”

The Mongols was founded in a Los Angeles suburb in 1969. The group is estimated to have more than 1,000 riders in chapters worldwide.

Yanny described the Mongols as a club that doesn’t tolerate criminal activity. He said the government targeted the group because of its large Mexican-American population.

Former pro wrestler and Minnesota Gov. Jesse Ventura testified for the defense, saying he neither committed crimes nor was told to do so when he was a Mongol in the 1970s.

Prosecutors won the convictions after detailing violence that included the killing of a Hells Angels leader in San Francisco, a Nevada brawl in 2002 that left members of both clubs dead, and the killing of a Pomona policeman while raiding the home of a Mongols member in 2014.

CA - Mongols Win Tyranny Loses

OFF THE WIRE
agingrebel.com

This morning at 9 a.m. Pacific district judge David O. Carter denied a preliminary order of forfeiture that was transparently intended to turn the Mongols Motorcycle Club’s various indicators of membership, or club only patches and tattoos, into contraband.

The government has been pursuing this cause through two major criminal cases and a civil case spanning more than ten years. In October 2008 Thomas P. O’Brien, who was then United States Attorney for the Central District of California, gloated about the first of those cases:

“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.”

Mongol Problem

And, for the next seven months local and federal policemen did that and more. They broke into cars to seize patches that said “MFFM,” for “Mongols Forever Forever Mongols.” They raided bike rallys to seize Mongols tee-shirts. They used Swat to execute search warrants on people’s homes in search of Mongols calendars, posters, bandannas and coffee mugs.

A federal judge named Florence Marie Cooper put a stop to that but the prosecutors running the government’s case, Steven Welk and Christopher Brunwin refused to give up the notions that: First, there is a “motorcycle gang problem;” and second, that the motorcycle gang problem may be solved by outlawing motorcycle gang symbols.

Eventually the crusade to end the “motorcycle gang problem,” or at least the “Mongol problem,” became a federal racketeering case titled United States versus Mongol Nation: An Unincorporated Association.
It was always a ridiculous case. It was the child of a conspiracy to solve the Mongol problem between the prosecutors at play today, Welk and Brunwin and a mortifying district judge named Otis Dalino Wright II. Wright is an ex-Sheriff who saw his duty as helping Welk and Brunwin solve the Mongol problem. Mongol Nation was his idea. He quit the case because he was afraid that if he did not remove himself from Mongol Nation he would end up being publicly shamed for his despicable conduct of it.

Indicia

That was how the case wound up in Carter’s court.

Today Carter put a stop to the final solution to the motorcycle gang problem.

What the government has always hoped to accomplish has been to rip symbols off people’s backs. To break into people cars to confiscate contraband symbols. To raid the homes of “known Mongols” in the middle of the night, to kill their pets, terrorize their children, bully their wives and parents, steal their cash, smash their momentos, confiscate their electronics and blow their houses off their foundations – all under the pretense of searching for contraband symbols.

Brunwin and Welk have denied this. They have denied it to Carter. Neither Brunwin nor Welk have told the truth in any of these cases in the last decade. They have lied repeatedly in Carter’s court and there seems to be some possibility that he has noticed.

Near the beginning of the 51-page ruling he released this morning, Carter wrote:

“For more than a decade the United States has expended resources in seeking forfeiture of the Mongol Nation’s collective membership marks. Why? It is beyond question that the Government has a legitimate interest in attacking the economic roots of a criminal organization like the Mongol Nation. But what does the United States accomplish by seizing control of the intellectual property associated with a motorcycle club’s symbols? The Government’s own prior admissions shed light on the objectives underlying more than ten years of these effort: The collective membership marks are ‘potent emblems’ use to ‘generate fear among the general public’ and the Government has sought orders to prevent use of ‘the trademark to create an atmosphere of fear through public display.’ The Government has stated publicly that it has sought to ‘stop a gang member and literally take a jacket right off his back.’ The Government is not merely seeking forfeiture of a ship’s sails. In this prosecution the United States is attempting to use RICO to change the meaning of a ship’s flag”

“Now that preliminary order of forfeiture is before the Court, the Government contends that its request is limited; the Government argues at length about what the requested preliminary order of forfeiture does not authorize.”

“But the First Amendment ‘protects against the Government; it does not leave us at the mercy or noblesse oblige’ or any promise to use power ‘responsibly.’”

Trusting The ATF

“The Government has included language in its proposed POF stating that the order ‘standing alone’ does not authorize seizure of property bearing symbols and that the Government ‘shall not apply to any Court (other than this Court) requesting seizure or enforcement authority based upon this Order.’ This is not enough to remedy the chilling effect the forced transfer of a symbol to the United States government has on Mongol Nation, its members and society at large. The Government has not been forthright with the Court and the public regarding whether the United States can feasibly use the Mongol Nation’s collective membership marks or transfer the marks to a third party for their exclusive use. These statements to the Court have been accompanied by public threats made by the United States Attorney regarding the Government’s intention to strip vests off members’ backs. More recently, the special agent in charge of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Los Angeles Field Division, stated that the Government has successfully seized a ‘unity symbol.” Because the forced transfer of symbols to the United States immediately chills the Mongol Nation’s and its members’ continued rights to display or otherwise use the collective membership marks without fear of retaliation or payment of a licensing fee at any point following forfeiture, the forced transfer of the collective membership marks to the United States violates the First Amendment.”

“The Government’s request also violated the Eighth Amendment’s Excessive Fines Clause and must be denied on this basis alone. The Mongol Nation is a convicted criminal entity, and its members have pleaded guilty to heinous acts of murder, attempted murder, drug trafficking and other crimes. But in this case the jury found the Government did not prove the requisite nexus between the collective membership marks and the substantive RICO offense; the jury found the collective membership marks fofeitable as to RICO conspiracy alone. The forfeiture of rights associated with a symbol that has been in continuous use by an organization since 1969 is unjustified and grossly disproportionate to the offense.”

Yanny

After Carter made his ruling, Mongols attorney Joe Yanny said, “It’s been a long hard road and this is a major victory for motorcycle clubs.”

“The case was a product of the brains of some government employees who were trying to justify their existences and shows not just a complete lack of understanding of the intellectual property laws but a complete ignorance of and disregard for the Constitution and the rights of citizens.”

“We can only hope the government gets the message that they don’t have free reign to spend tens of millions of taxpayer dollars to abuse people they don’t like or don’t understand.”

At first glance, it does not seem likely that Brunwin and Welk will appeal Carter’s order. The appeal would go to the Ninth Circuit which has already ruled, in a case titled Sammartano v. First Judicial District Court, in and for the County of Carson City, that symbols like the Mongols are Constitutionally protected expression.

And, their appeal would have to be approved by the Solicitor General of the United States. It would probably boil down to a political decision. The current Solicitor General is Noel Francisco. He was appointed by President Trump after his Washington law firm, Jones Day, worked on behalf of the Trump campaign. It is anybody’s guess how much political capital may still be made by waving the motorcycle menace in the public’s faces.

Probably, the government’s long crusade to strip motorcycle clubs of their symbols is finally over.

CA - Ruling VICTORY FOR ALL CLUBS!

OFF THE WIRE

On behalf of the Mongol Nation I want to thank everyone that helped & supported us during our fight through this long battle. Today was a VICTORY FOR ALL CLUBS!

It’s not over but we will continue to FIGHT THIS BATTLE FOR ALL CLUBS.

RAGS

MONGOLS FOREVER FOREVER MONGOLS!

Philip, please put this out, thank you!

CA - Judge refuses to strip Mongols biker club of trademarked logo

OFF THE WIRE
By Joel Rubin

The Mongols motorcycle club logo is seen on a member's jacket at a news conference in Los Angeles. (Ted Soqui / Corbis via Getty Images)

After a decade spent fighting the Mongols motorcycle club and its violent members in court, federal prosecutors appeared poised last month to deliver a decisive blow when a jury voted to strip the notorious club of trademarks it holds on its coveted logo.

But a federal judge in Santa Ana Thursday let the Mongols off the ropes, ruling that taking control of the insignia from club would be unconstitutional and refusing to enforce the jury’s decision.

Denying Mongol members the ability to display the logo on their leather riding jackets and elsewhere would overstep the right to free expression embedded in the 1st Amendment, as well as the 8th Amendment’s ban on excessive penalties, U.S. District Judge David O. Carter found.

“There is a realistic danger that the transfer of the rights associated with the symbol to the government will have a chilling effect,” Carter wrote.

In a sternly worded, 51-page ruling, Carter unambiguously knocked down each of the arguments prosecutors had made in favor of wresting away control of the trademarks the club’s leaders used to maintain tight control over its image and membership.

In doing so, the judge dealt a significant setback to the novel legal strategy prosecutors had concocted in the case, which aimed to apply federal forfeiture laws, which are typically used to take cash, houses and other tangible property, to the abstract rights associated with a trademark.

Carter said the government was well within its rights to take weapons, ammunition and other contraband seized in raids against the Mongols.

However, likening the Mongols to a ship, the judge wrote, “The Government is not merely seeking forfeiture of the ship’s sails. In this prosecution the United States is attempting … to change the meaning of the ship’s flag.”

Prosecutors’ claim that rights to the insignia should be stripped because it was a vital part of the club’s criminal activity — a powerful image used to “generate fear among the general public” — fell far short of clearing the high barrier the 1st Amendment requires the government to clear if it wants to restrict speech, Carter wrote.

Since the group was formed in late 1960s, the image of a Genghis Khan figure in sunglasses riding a motorcycle beneath the group’s name has been the foundation of the Mongols’ identity, which over the years has included involvement in drug dealing and violence by many members.

Only those who have been admitted to the inner ranks of the insular group are allowed to stitch the large patches of the insignia onto their riding apparel. And in the closed-off world of motorcycle clubs, built largely around rivalries and alliances with other groups, the logo serves as an unmistakable signal to friends and enemies.

“We are ecstatic that the Mongols motorcycle club has been able to win this 1st Amendment battle for itself and all motorcycle clubs,” said Stephen Stubbs, an attorney for the Mongols. “The government has clearly overreached into a realm that the Constitution does not allow. They tried to ban symbolic speech.”

In a statement, a spokesman for the U.S. attorney’s office said, “We are disappointed in the ruling,” adding that prosecutors believe the country’s laws obligated Carter to order the trademarks to be forfeited.

The government is “definitely considering an appeal,” he said.

In December, after a lengthy trial, a jury convicted the Mongols organization of racketeering and conspiracy charges, finding that the group shared responsibility for murder, attempted murder and drug crimes committed by individual members.

The verdict cleared the way for prosecutors to go after the trademarks as part of the sentence against the club.

Following more testimony and legal wrangling over the forfeiture issue, the jury voted unanimously that the Mongols should lose control of the trademarks, finding that there was a direct link between the image and one of the criminal charges the club faced — conspiracy to commit racketeering.

Calling the verdict the “first of its kind in the nation,” U.S. Atty. Nicola Hanna said seizing the Mongols’ trademarks would serve to “attack the sources of a criminal enterprise’s economic power and influence.”

But rather than order the trademarks forfeited, Carter set a hearing to examine, among other things, the 1st Amendment issues raised by the verdict.

When both sides arrived in court Thursday to make their cases for signing off on the jury’s decision, Carter — who during the trial made no secret of his concerns that the novel legal strategy crossed constitutional lines — had his order already written.

The judge said 1st Amendment issues were undeniably at play because the type of trademarks the Mongols own, called collective membership marks, don’t serve any commercial purpose but only help members to identify themselves as part of a group.

And because the jury had found the logo was tied directly to the conspiracy charge but not the murders and other violent crimes with which the club was accused of participating, Carter concluded forfeiting the trademarks would violate the Constitution’s 8th Amendment, which forbids the government from imposing excessive punishments.

Denying members control over the logo would be an “unjustified and grossly disproportionate” punishment, he wrote.

In laying out the rationale for his decision, Carter revisited the long history of the government’s pursuit of the Mongols.

Formed in the 1970s in Montebello by a group of mostly Latino men who reportedly had been rejected for membership by the Hells Angels motorcycle gang, the club has expanded over the decades to include several hundred members in chapters across Southern California and elsewhere.

In 2008, nearly 80 Mongols members were charged in a sweeping racketeering case that included an array of alleged murders, assaults and drug deals.

Prosecutors devised the strategy of stripping the Mongols of their trademarks in that earlier case. At a news conference announcing the charges, then-U.S. Atty. Thomas P. O’Brien laid out the strategy, saying that taking control of the trademarked insignia would give the government the authority to force Mongols members to remove the image from their riding jackets.

All but two of the defendants in the case pleaded guilty and a judge agreed the trademarks should be forfeited, but ultimately reversed himself after deciding none of the people charged in the case actually owned the trademarks.

That led prosecutors to try again with a second racketeering case that was largely the same as the first but which named only one defendant: Mongol Nation, the entity that prosecutors say is made up of the club’s leaders and owns the trademarks.

Carter has not yet imposed a sentence on the Mongols in the current racketeering case. The punishment could include monetary fines.

“Judge Carter’s decision recognizes that there are many punishments and penalties that can be imposed, but denying speech rights raises serious 1st Amendment concerns,” said Erwin Chemerinsky, dean of the law school at UC Berkeley.

Joseph Yanny, a criminal defense attorney who argued the case for the Mongols, expressed disappointment that the judge had rejected his requests that the verdict be tossed out altogether.

But he acknowledged that allowing the club to maintain control over its logo was a major win. Losing the trademarks, he had said during the trial, would have amounted to a “death sentence” for the Mongols.

The government’s case, he said, was an attempt to impose “collective guilt” on an organization for the crimes committed by some of its members.

“That’s never been the law in this country,” he said.