There was a hearing this morning in the looming Mongols Nation case to approximately determine how extensively the jury pool has been contaminated by government sponsored, anti-biker and anti-Mongol propaganda in the last seven years. That’s how long the federal government has been trying to seize the Mongols patch.
On October 21, 2008, when announcing a massive racketeering case against the club titled US v. Cavazos et al., then United States Attorney Thomas P. O’Brien bragged: “The racketeering indictment seeks the forfeiture of the trademarked ‘Mongols’ name, which is part of the ‘patch’ members wear on their motorcycle jackets.
“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,” O’Brien said. “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.”
O’Brien resigned less than a year later in the middle of an ethical scandal and the Department of Justice has been trying to rob all motorcycle clubs of their insignia ever since. The government has been undeterred by the fact that, in every court ruling on the matter so far, motorcycle club patches have been found to be a form of constitutionally protected free expression.
The issue of whether the government can simply seize the insignia of motorcycle clubs, any motorcycle club, if a jury can be convinced that motorcycle clubs are dangerous is finally going to trial on June 2. The judge who will preside over the trial, a former Los Angeles County deputy sheriff named Otis D. Wright II, decided long ago that justice is when the police rip a jacket off somebody’s back.
“This is a criminal enterprise as evidenced by the admissions of same by no fewer than 40 people who appeared before me,” Wright said. “This is a dangerous enterprise.” The “admissions” to which Wright referred were coerced plea deals in the Cavazos case. Essentially, defendants couldn’t get on with their lives until they confessed to something. Before they were freed, defendants in that case had to “confess” that:
“The enterprise alleged in” the Cavazos indictment, “existed; the enterprise engaged in or its activities affected interstate or foreign commerce; defendant was employed by or associated with the enterprise; and defendant knowingly and intentionally entered into an agreement to conduct or participate in the conduct of the affairs of the enterprise through a pattern of racketeering activity. That is the defendant agreed that at some time during the life of the conspiracy he or some other member or members of the conspiracy would commit on behalf of the conspiracy at least two related acts of racketeering.”
Sometimes racketeering acts are actually crimes and sometimes they aren’t. The “racketeering acts” to which these defendants confessed included:
What Is Racketeering
“Defendant is a member of the Mongols. As part of his role as a member of the Mongols criminal enterprise, defendant provided security with other members and associates of the Mongols. Defendant acted as ‘security’ at a Mongols event in
Hacienda Heights, California on November 11, 2007 and at a Mongols ‘Mother Chapter’ leadership meeting on February 22, 2008.”
“On April 29, 2006, defendant and other members of the Mongols gang armed themselves and attended a Mongols party in Temecula, California.”
On August 13, 2006, defendant possessed a firearm while with an undercover law enforcement officer who was posing as a potential Mongols member and another member of the Mongols gang.”
“Defendant is a member of the Mongols Gang. As part of his role as a member of the Mongols criminal enterprise, defendant provided security for a gathering of members of the Mongols gang in July 2008. Security at this event was necessary due to the large concentration of Hells Angels members present at the Hollister, California motorcycle run. At this event, defendant told an undercover law enforcement officer who defendant believed was a member of the Mongols gang that defendant was attempting to determine if any Hells Angels gang members were a threat to the Mongols function that defendant Espinoza was providing security for.”
“On or about June 14, 2008, defendant knowingly and intentionally possessed 3.0 grams of marijuana.”
“On November 18, 2007, defendant advised an undercover law enforcement officer that defendant believed was a member of the Mongols gang that the Mongols would be collecting funds to pay for an attorney to represent (a) co-defendant and Mongols gang member.”
“As part of his role as a member of the Mongols criminal enterprise, on November 12, 2006, in Los Angeles, California, defendant forced a suspected Hells Angels gang member to remove his shirt and surrender it to defendant under threat of violence.”
“Defendant has been a member of the Mongols criminal enterprise. Defendant was also an officer in the Mongols and was elected ‘Sergeant-at-Arms’ of the gang’s San Diego chapter, and participated in leadership meetings with co-defendant Cavazos and
other Mongols leaders. Defendant further agrees that his conduct was related to his membership in the Mongols Gang and was committed in furtherance of the criminal enterprise and knowing that its members and associates would commit racketeering offenses. The racketeering offenses of the Mongols organization are offenses which have an effect on interstate commerce.”
Collective Membership Marks
During multiple attempts to seize the Mongols membership marks multiple federal judges have ruled that motorcycle club insignia are protected by the Constitution in the same way that the Christian Cross, the Jewish Star, the Moslem Crescent, the Masonic Compass and other symbols are protected from government confiscation.
In a ruling in 2009, Judge Florence Marie Cooper wrote that the Mongols insignia is a “collective membership mark.”
“In contrast to commercial trademarks, which are used in commerce and generally not entitled to full First Amendment protections, collective membership marks are used by members of an organization to ‘indicate membership in a union, an association, or other organization.’ The use and display of collective membership marks therefore directly implicate the First Amendment’s right to freedom of association. The Supreme Court has recognized that ‘implicit in the right to engage in activities protected by the First Amendment’ is ‘a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’ This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.’ Furthermore, clothing identifying one’s association with an organization is generally considered expressive conduct entitled to First Amendment protection.”
Cooper continued, “The Ninth Circuit reasoned that the rule singles out bikers and similar organizations for the message their clothing is presumed to convey, and held that the rule impermissibly discriminates against a particular point of view – the view of biker clubs as opposed to garden clubs and gun clubs. In this case, the Government targets an even narrower group of individuals, a single motorcycle club. In addition, the Government has been seizing property, which imposes a greater restriction on individual rights than the denial of access to a public facility. Accordingly, the seizure of property bearing a Mongols membership mark should be considered viewpoint-discriminatory. The Government’s ability to seize property bearing the trademark acts as a prior restraint and cannot stand without a judicial determination that the speech is harmful, unprotected, or otherwise illegal. No such determination was ever sought by the Government, and no such determination was ever made by the Court.”
Is A Patch A Threat
The key element in the current legal battle is a determination of whether wearing a Mongols, or any motorcycle club, patch is “harmful, unprotected, or otherwise illegal.”
Not all expression is protected by the law. For example, slander, child pornography, “fighting words” and threats are not protected. Wright, seems to have unilaterally decided that the Mongols patch constitutes what the law calls a “true threat.”
The law is fuzzy on the subject of true threats. A key case is titled Virginia v. Black. That case found that sometimes burning a cross is a true threat and sometimes it is not. In her opinion, Justice Sandra Day O’Connor defined a true threat like this. “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”
Judge Wright, who suggested this end run around the Constitution to prosecutors, has already decided that motorcycle club patches are true threats that can be effectively banned by allowing the government to seize control of them.
“Is being a Mongol no different than them perhaps having been Lutheran,” Wright asked rhetorically during one hearing. “It is not the same thing, is it? They are operating under the banner of the Mongols. It is that name, that reputation, that intimidation factor which enables them to do what they do, isn’t it?”
Vox Gangland Undercover
Wright, who is not renowned for his legal scholarship, seems to agree with a county judge in Illinois named Sharon L. Prather. She ruled last month that Outlaws Motorcycle Club patches are illegal because they are used “to facilitate street gang activity.” Prather’s ruling was blatantly unconstitutional.
What the prosecutors in the Mongols Nation Case – who were also the prosecutors in Cavazos – intend to do is leave the determination of whether a motorcycle club patch is a true threat or not up to a panel of jurors who will have almost as incomplete and rudimentary comprehension of the Constitution as the presiding judge. Worse, the government has spent the last decade misleading the American people about the essential nature of and potential public danger of those clubs. So what the prospective jurors in this case think they know about the Mongols, the ATF, American justice and motorcycle clubs in general is likely to be fatuous and prejudicial to the prosecution.
During today’s hearing, Mongols attorney Joseph A. Yanny asked Judge Wright to allow him to determine which prospective jurors have already had their opinions about motorcycle clubs poisoned by television shows like Gangland, Gangland Undercover, Inside Outlaw Bikers and America’s Most Wanted. All of those programs were either vetted for accuracy by or produced with the official cooperation of the same Department of Justice officials who are trying to outlaw the Mongols patch now.
Yanny wants to ask prospective jurors questions like:
“List any television news programs that you watch, including investigative news programs, and how frequently (e.g., daily, often, occasionally, rarely).”
And, “Please list any books, magazines, newspapers you have read or any movies or TV shows that you have seen depicting motorcycle clubs.”
The government objects to the written questionnaire because, it argues, asking prospective jurors if they formed their opinions of motorcycle clubs by watching Gangland Undercover would unnecessarily complicate “the Court’s typical voir dire procedure.”