About six hours into a preliminary hearing yesterday, in the ridiculous racketeering case United States versus Mongols Nation, in the Ronald Reagan Courthouse in Santa Ana, California, Federal District Judge David O. Carter smirked at the prosecutors and said, “I haven’t had a long trial in a long time and I miss it.” The audience laughed. The prosecutors didn’t. And the disparity between those two reactions might have been the most telling thing that happened in that hearing.
Mongols Nation seeks to convict a turn of phrase for murder, drug dealing, sexual promiscuity and conspiracy to stay out of jail. The point is to steal the Mongols patch and hang it on a wall in the White House or the Department of Justice or the Smithsonian or someplace. Prosecutor Steven R. Welk collects gruesome Mongols memorabilia. Yesterday he confessed to the world that he keeps in his office the baseball bat with which two Mongols allegedly beat a man to death. He didn’t reveal whether he ever takes his souvenir out to a batting cage
Judge Carter, who is smart enough to appreciate irony, seems both amused and surprised by Mongols Nation. He has just awakened to it, literally. He thought that more than two years ago he had settled the matter of whether the government can steal the Mongols Motorcycle Club’s name and patch and every garment and every photo and every souvenir bandanna and baby onesie tainted by it’s image. Last week while on vacation he learned about Mongols Nation; and that he was now presiding over it; and that he would have to study all weekend to prepare for yesterday’s hearing. Consequently, the look on his face most of the day was priceless.
Carter is an interesting judge. He is opinionated and bright. He was a Marine Corps officer in Vietnam. He mentions the Corps frequently and he is sympathetic to the idea that many Mongols are veterans. Carter is now old enough to remember a Marine Corps that was more rough and tumble than it has become. Which may be why he gives the impression that during his time in Marine Officer School he must have been hit in the head by a Drill Instructor with the butt of an M-14 at least twice. And he seems inclined to think that the prosecutors in the Mongols Nation case might benefit from some of the same experiences that helped shape him.
The day began at 7:30 with a sentencing in which Carter compassionately tried to convince a man with a drug problem to go and sin no more. He didn’t send him to jail. Carter told him to become “somebody his children could be proud of.”
The Mongols Case
Then he moved on to the two main cases in his hands. One is called United States versus Assorted Firearms etc. which should really just be called the Mongols case because it is a small part of what everybody understands to be “The Mongols Case.” The prosecutors have simply shattered that coherent case like frozen salt water taffy in order to make more work for themselves and to make it more difficult for their victims to defend themselves.
It is all just one, big case. Walking into any hearing in The Mongols Case is like walking into Cheers. Everybody knows your name. You know all of theirs. Assorted Firearms is what is now left after Welk decided to pilfer cash, motorcycles, firearms and anything else that might be of value, and that might be lying around loose or buried in the backyard, from scores of people who were accused of being connected in some way with the Mongols. Eight people are still contesting the “forfeiture” of their property seven years after it happened. Yesterday Carter demanded that prosecutors tell him the “nexus” between the seizure of the property, now all motorcycles, and criminal activity “We’re these used to transport drugs? Were they purchased with drug money?”
Prosecutor Christopher Brunwin pretended not to “remember” and he promised to find out. The fact of the matter is that the government seized the motorcycles, firearms, cash and other property from people who were either framed or never convicted of any crime, because of the owner’s association with the Mongols. To get their motorcycles back, the eight victims still contesting this seizure will now have to attend a five to seven day trial, beginning on April 26.
Half the courtroom seats were crowded with Mongols. The other half of the seats were empty except for John Ciccone, who was the Bureau of Alcohol, Tobacco, Firearms and Explosives case agent on the Mongols case. Ciccone sat in his lonely corner in the back left of the room and throughout the day one or another prosecutor or paralegal would scurry back to him. Together they would strategize, or Ciccone would give them a name or a context, or they would whisper prayers to their dark lord Satan or whatever it is that cops and prosecutors do when they talk in low voices.
Carter has frequently expressed his faith in the judicial efficiency of “the plea bargaining system” but yesterday he threatened to make all the lawyers do all their whispering in front of the world’s mass media. The Mongols defenders are the very experienced Joe Yanny, Elliot H. Min and a kid named Andrew Viney who might be the most efficient and informed paralegal in the state. Carter made all the lawyers put their heads together and talk to one another without stopping until they gave him a trial date. Ten minutes into the long conference in the middle of the courtroom Carter finished his first big cup of water for the day and announced, “whatever date you come up with doesn’t mean I’m available.”
Carter made the lawyers scurry and chatter and told them to be quiet over and over. Eventually the two legal teams agreed that a trial would begin on November 10 and there would be a pretrial hearing on November 2. Brunwin told the judge he will need 6 to 8 weeks to present his case and Yanny thinks the defense will need about another month. That prompted Carter to observe, for the first of many times yesterday, “and nobody goes to prison?”
Cranky Old Judge
The judge, who likes plea bargaining because it cuts the cost of filling our prisons with the bodies our prisons need, if that important segment of our national economy is to remain vibrant, grumbled that it, “It would be much more efficient to try this case in Los Angeles. It is much more expensive to come to Orange County.” Then he repeated, “Nobody’s going to prison. They already have.”
Long hours of the hearing unfolded like a marathon of a reality television show called Cranky Old Judge. Carter read through the entire indictment line by line and constantly forced the prosecutors to tell him who, what and where. Usually the prosecutors didn’t know. All they seemed to know was their own rhetoric. And at one point in this long session, members of the audience began anticipating what Carter was going to say. And they began taunting Brunwin and Welk with their own whispers of “Where? Where?”
His crankiness aside, Carter is a vast improvement over the previous judge in the case, the Honorable Otis D. Wright, who seemed to think he was auditioning for a community theater production of Judge Roy Bean. When Judge Wright had the case, before he saw the satellite trucks, the cameras and the microphones coming for him, the government had planned to convict the word Mongols on the basis of admissions made in coerced plea agreements during an earlier manifestation of The Mongols Case called U.S. versus Cavazos et al.
That was the original case, the case from which all the other cases metastasized. As recently as a month ago, Wright ruled from the bench multiple times that the plea deals could and would be used to convict the word Mongols of racketeering. And that if the men who had been bullied by Brunwin into signing those plea deals tried to repudiate them they would be charged with perjury.
Wright gives the impression of a very stupid and unthoughtful man who slid into this Constitutional swamp while drunk. Wright was repeatedly and openly contemptuous of the Mongols. He eschewed written opinions. Suddenly he realized that Mongols Nation was about to be a very big deal, as Dred Scott was a big deal. So a month ago Wright walked into his courtroom for a pretrial hearing waving a 14-month old defense motion for his recusal over his head and he announced, “Mr. Yanny you win.” As the trial drew near Wright realized how much scrutiny he and the entire federal justice system were about to attract and he wanted to hide.
Flogging The Lawyers
Carter is not afraid. “No plea agreements are coming directly into court,” Carter warned Brunwin. “Plea agreements don’t just come floating in.” Carter intends to “put the Mongols nation right in front of the American people.”
The flogging of the lawyers continued all day. Carter insisted that they calculate with him “Jurors. Twelve in the box; eighteen peremptories; eight to ten alternates.” He announced he will have to send out more than 10,000 summons to get 150 prospective jurors. He thinks he will need a jury pool of at least 100 people.
This “case starts with conclusions,” Carter lectured Brunwin. “It would prejudice the jury.”
“Who did the Mongols attempt to murder,” he asked about one of the first counts. “When? Where? What happened? Were people previously prosecuted. Did anybody go to jail? Who are MG and JS?”
When it became obvious that the cat had stolen Brunwin’s tongue, Yanny answered for him. “Every individual act has already been punished.”
“And which judge ruled on these cases?” Carter pulled the indictment apart like pieces of a bug. “If you are going to make a superseding indictment make it now.” Over and over Carter told the prosecutors that whole paragraphs of the indictment were redundant and prejudicial.
Welcome To Law School
Brunwin didn’t handle the law-school style grilling well. His voice shook as Carter hectored him. “I…I…I…don’t…I believe….”
“No,” Carter bullied over and over. “Not what you believe. Yes or no.”
Again and again Carter asked Yanny about discovery – about the evidence he had or had not gotten from the prosecution so he could prepare his defense. Yanny told the judge the discovery has come in three big batches: Two batches of 9,000 and 4,000 pages each and another big evidence dump of 19,606 pages in April. He told Carter, “There is more we have asked for.”
“What have you been doing for the last two years,” Carter demanded. Mostly, what has been happening for the last two years is the prosecutors and Judge Wright have been sheltering this dying ember of a case under a rock,
“Who testified,” Carter wanted to know about all the alleged racketeering acts in the indictment that were lifted whole from the Cavazos indictment.
“Nobody testified,” Yanny answered.
Carter seems to have an incomplete comprehension of how motorcycle clubs work and how their counterculture works. All the lawyers presented him with examples of violence between some Mongols and members of the Hells Angels Motorcycle Club. Noting the Mongols in the courtroom, Carter worried that Angels might, for some reason, disrupt the Mongols Nation trial. At one point he suggested that the defense “Send out a Kumbajah letter to the Hells Angels warning them, ‘If our patch is threatened so is yours.’”
Mongols RICO Predicates
The government eventually explained to Carter that their case will center around a well known list of alleged Mongols atrocities. One was a shooting at a night club called Nicola’s. As John Ciccone and ATF Tactical Field Officer Chris Cervantes watched, a Mongol named Denis Maldonado allegedly shot two street clicque members named Zeus Sanchez and Marcello Garcy.
There are many instances in which Mongols were convinced by undercover policemen to sell them methamphetamine.
There was an incident in which an ATF asset named Daniel “Coconut Dan” Horrigan and an ATF source of information named Lars Wilson incited former Mongols officer Mike Munz to go to Indianapolis to beat a member of the Sons of Silence. “Why would they do that,” Carter wanted to know. Brunwin didn’t have an answer.
There was a vicious murder in a bar in Merced involving Mongols. There was a fatal fight with members of the Hells Angels in Laughlin, Nevada.
There a nasty brawl involving Mongols at a mixed martial arts fight in Cabazon, California. In answer to a question from the judge, Yanny told Carter he had never gotten the video recording of that brawl. Brunwin replied, as he did over and over about the missing discovery, “We have given him this your honor.” Maybe Brunwin did and maybe he didn’t. His track record would indicate that he hadn’t but it hardly matters if he did. That is the whole point of evidence dumps. The best place to hide a document or recording is in a big cardboard box containing tens of thousands of documents and recordings.
“What have you been doing for two years,” Carter asked again. “This is ridiculous.”
The government is accusing the word Mongols of having a sit down with the so-called Eme – the Mexican Mafia. “Who in the Eme did they meet with,” Carter asked. Brunwin didn’t know. “Was it Chuy,” Carter who has presided over trials of both Arian Brotherhood and La Eme members wondered.
The government thinks the word Mongols caused Cristopher Ablett to kill Hells Angel Mark Guardado (about whom Brunwin cares so deeply he repeatedly refrred to the dead Angel as Matthew Guardado). Brunwin obviously delighted in describing the details of Guardado’s death. Ablett was sentenced to life in prison. Brunwin thinks the Mongols should die.
The government is charging the symbol Mongols with being responsible for a shooting at a Toys for Tots toy drive sponsored by the Hells Angels. “Why would they do that,” Carter asked. Brunwin had no clue.
The government is also charging the word Mongols for being responsible for a brawl in a club on the Sunset Strip called The Tokio Lounge. A man groped a sister of a Mongol. There were three undercover ATF agents there. When the man in the bar rudely refused to stop groping the Mongol’s sister he was badly beaten. As he was beaten, the ATF agents shouted “nigger” over and over. Brunwin and Welk have used the insicdent to accuse the Mongols of racism over and over.
“Why did they do this,” Carter asked.
Finally Brunwin had an answer. “Your honor, this is a racist organization.”
After about seven hours, the lawyers and the judge got around to the key question in this case, a question on which Carter has already ruled. “What about members who have not been convicted of specific acts, “ Carter asked as Socrates asked. “Is this a slippery slope.” Carter wanted to know what will happen after they come for the Mongols. He asked about the Hells Angels. And again he said, “Nobody is going to jail.”
“There is a lot of jurisprudence here,” Carter said as if he couldn’t wait to weigh in on it. He invited Yanny to write a motion for dismissal. He told Brunwin and Welk to be ready to reply. And, he told everybody he would make his ruling, “in writing, not from the bench.”
The folly of this issue of stealing the patch off the Mongols back began, according to Carter, when Judge Florence Cooper made a legal mistake. She acted in error when she allowed the government to start seizing private property owned by Mongols because she confused the special kind of trademark used by associations, called a collective membership mark, with the less protected trademark used by McDonalds, KFC and Midas Muffler. She made the error because Brunwin and Welk lied to her. “Judge Cooper was the first to admit that she made a tragic mistake at the start of this case,” Carter fairly warned the prosecutors.
And then after having to sit down and be quiet all day the lawyers couldn’t wait to stand up and argue. A debate spontaneously erupted between Yanny and Steven R. Welk. Carter smirked and called it “debate time.” It was the most interesting hour of the day. There was a little drama in the court. Yanny spoke with emotion and passion. Welk did not.
He Coulda Been A Caligula
Brunwin may exemplify what the political theorist Hannah Arendt called “the banality of evil” but Welk is something special. Welk is truly soulless. He coulda been a Caligula. He is self-righteous and sophistical. His only passion is his own pride.
Welk is outraged that this case, this legal bullying, this running roughshod over basic American liberties that he has so enjoyed since October 2008, might have to end some day soon. In 2009, when Judge Cooper told Welk, Brunwin and the ATF that they had stop stealing Mongols paraphernalia, Welk accused her of “premature adjudication.” He tried to accuse Carter of the same thing yesterday for even suggesting that the judge would consider dismissing the case on Constitutional grounds. Welk was furious about the prospect of “determining the forfeitability of the marks before the trial.” He argued that that was backwards. He seemed to really believe that he should be allowed to punish the Mongols in court forever and ever until eventually, when they have no more money to defend themselves, he will win.
“Are you saying the issue can’t be raised on Constitutional grounds,” Carter asked him.
“Yes, Welk answered. It is an astounding point of view for a government prosecutor to not only hold but to admit having.
Welk seems to think the Bill of Rights must be approved on a case by case basis over and over and over. It is exactly what you would expect someone who steals from the weak.
Yanny Fights Back
Yanny spontaneously stood up and fought back. He blamed most of the criminality of which the Mongols have been accused on former club president Ruben “Doc” Cavazos. “This club was as much a victim of Doc Cavazos as anybody else,” Yanny growled.
Cavazos was expelled from the club in October 2008. He was certainly cooperating with federal police after his expulsion. He may have been cooperating with federal police before then. He was certainly manipulated by undercover agents for some months or years before that. His International Sergeant at Arms, for example, was working for the ATF. Undercover ATF agents appear to have convinced Cavazos to appear in the production of an episode of Gangland. When a Mongols chapter president first saw a photo of Mongols prospect, and undercover ATF agent, Darrin Kozlowski posing as an undercover Vago in Billy Queen’s book Under And Alone, Cavazos’ son Ruben, Jr. told the chapter president that Kozlowski had “already done more for the club” that half the members. Doc spent the first two years of his incarceration debriefing in the basement of the Montebello, California police station and he attempted to give the club’s trademarks to the government as if they were his personal property.
The hidden, decade long, low intensity war between the Mongols and the government shows no signs of abating. “There’s not a weekend that goes by,” Yanny said pointing at the Mongols in the audience, “that these guys aren’t harassed by federal agents. That’s why it’s appropriate to look at the Constitutional issues first. Stop wasting taxpayer dollars,” he snapped at Welk. “Stop wasting the dollars of these decent men! This club is guilty of nothing except being. It’s time to put an end to this stuff! This is a frivolous prosecution by guys who have unlimited funds!”
The national press already thinks this is a big case. They don’t yet know how big. This is a death match.
Yanny has planned for a year and a half to force the government to pay for the Mongols legal defense under the authorization of a 1997 statute called the Hyde Amendment. It allows federal courts to award attorney’s fees and court costs to criminal defendants “where the court finds that the position of the United States was ‘vexatious, frivolous, or in bad faith.’” Under the Hyde Amendment, the money for the Mongols defense would come out of the Department of Justice budget. Carter has already made such an award in a related case called Ramon Rivera v. Ronnie Carter et al., in which a Mongols patch holder in San Diego sued the government for the right to wear his patch.
But the stakes are now much higher than that for Brunwin and Welk personally. Yanny thinks the prosecutors conduct in their ten year long pursuit of the Mongols has been so outrageous that a section of the law titled 28 U.S.C. section 1927 might apply to them. That section reads, “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”
In other words, if Brunwin and Welk lose this case they may not merely be compelled to submit a bill to Washington. They may have to personally pay Yanny’s legal bills. These are the two men who intend to bludgeon the Mongols out of existence with an obscenely expensive, three month long trial.
“I am the punishment of God,” Genghis Khan is remembered to have said. “If you had not committed great sins, God would not have sent a punishment like me upon you.”
Get your popcorn ready.