Late last night Joe Yanny and Elliot Min, the lawyers representing the Mongols Motorcycle Club in its fight to keep its patch, filed a motion with District Judge David O. Carter that asks the judge: To completely dismiss the unprecedented racketeering indictment against the Club forever; rule the government’s attempt to seize the Mongols name and logo as unconstitutional and a matter that has already been finally decided by Carter in an earlier ruling; and schedule an evidentiary hearing for sanctions against the prosecution.
The motion is 65 pages long excluding eight additional exhibits that include the full text of the judge’s summary judgment in favor of the Mongols in a civil case titled Ramon Rivera v. Kenneth E. Melson, Acting Director, Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF); John A Torres, Special Agent in Charge, ATF Los Angeles Field Division; Eric H. Holder, United States Attorney General, et al. Rivera was a Mongols member from San Diego who fought, with a little help from the American Civil Liberties Union, for his right to wear the club patch he had earned.
The Back Story
In the Fall of 2008, in announcing a racketeering case against the Mongols titled U.S. v. Cavazos et al., then U.S. Attorney Thomas P. O’Brien had bragged to the world press that the government was using trademark law to forbid Mongols from wearing their patch. O’Brien, who had a distressingly incomplete knowledge of the law for a U.S. Attorney, claimed that “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.”
For the next eight months, police actually believed that. A week after O’Brien made his announcement, the government applied for, and tricked the late Honorable Florence Marie Cooper into granting, a post indictment restraining order that prevented the sale of anything that included the word “Mongols” and the display of the word Mongols or the club’s insignia by defendants in the Cavazos case “and those acting on their behalf or in concert with them.” The effect of the restraining order was Orwellian. Not only could indicted Mongols not wear their patches. Not only could unindicted Mongols not wear their patches. Mongols could not wear patches that read MFFM. Fathers, mothers, wives and children of Mongols could not wear tee shirts that said “Free the Mongols.”
Eventually Judge Cooper found out what was going on and put a stop to it. And after she died, Judge Carter presided over the Rivera case and in his summary judgment for Rivera and against the government Carter wrote:
“…the trademark rights were not subject to forfeiture, and, even if they were, the property that bears the trademarked image is distinct from the trademark itself.”
“The undisputed facts establish that the government’s seizure of items bearing the Mongols mark and/or Image mark also would violate Rivera’s rights under the First Amendment to the United States Constitution…. The First Amendment protects both expressive and associational conduct.”
“Displaying a symbol on one’s person or clothing constitutes protected communicative conduct if (1) the symbol is ‘intended to convey a particularized message;’ and (2) ‘in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.’”
“Although the government and Rivera dispute the substance of the message conveyed by the Mongols mark and Image mark, it is undisputed that both marks convey a message. Rivera claims that he wears articles of clothing that bear the Mongols mark and/or Image mark in order to express his allegiance to fellow low-income Latino males with an affinity for riding motorcycles. The government responds that Rivera’s display of either or both marks expresses his allegiance to a “criminal organization” committed to engaging in violent acts. Whatever the message, the Ninth Circuit has observed that patches and symbols signifying membership in a motorcycle organization communicates ‘the fact of [members’] association with this particular kind of organization.’ The government concedes, and even relies upon, the existence of this communicative effect by arguing that message conveyed by the marks is worthy of suppression. Seizures of expressive materials are prior restraints on speech…. Restrictions aimed at suppressing the ‘substantive message convey(ed)’ by a particular symbol generally run afoul of the First Amendment….”
“The government claims that its restrictions are warranted on two grounds. First, the government contends that the materials seized (the patches) constitute ‘assets that were found to be related to’ the alleged acts of racketeering…. Second, the government argues that, by virtue of the post-conviction forfeiture entered by the district court in the parallel criminal action, it has obtained the intellectual property rights previously held by the Mongols, and that such rights encompass the right to exclude individuals from using the registered Mongols mark and Image mark…neither of the government’s explanations are convincing.”
“‘Taking the jackets off’ Mongols members backs does not preserve the status quo; it effectuates a fundamental change in the way membership is expressed. It also does not preserve the availability of the trademarks for eventual forfeiture, as the defendant’s purported right in the mark is separate and distinct from the property that bears the mark.”
“The government responds that the post-indictment restraint on the mark’s use in connection with ‘violence, murder and drug trafficking’ preserved the mark’s value. However, the amended order required all family members and associates to surrender the leather patches – not just individuals engaged in criminal activity.”
“The purpose of a collective mark is to allow an organization’s members to ‘indicat(e) membership’ to the broader public. Preventing Mongols from wearing a leather patch bearing the word ‘MONGOLS’ eviscerates the mark’s purpose of signifying membership.”
Government Lost In 1791
The Mongols Nation case has already been decided, by the same judge who is hearing it now, on January 4, 2011. He reaffirmed the first amendments to the Constitution that were enacted in 1791. That’s why Judge Carter, at a hearing two weeks ago, wondered why the case was continuing. “What have you been doing for two years,” Carter asked over and over. “This is ridiculous.” The same prosecutors who lost the Rivera case, Christopher Brunwin and Stephen Welk, refused to accept that they could not forbid the Mongols, or any other motorcycle club, from wearing a patch. For the last seven years, Brunwin and Welk have been maliciously using their prosecutorial powers to punish the Mongols by making the club defend itself.
The case isn’t quite over yet. Unless they just give up, which would be the decent thing to do, Brunwin and Welk must file a reply to Yanny and Min’s motion by July 20. The Mongols have until July 27 to reply to that. There will be a hearing on the proposed dismissal on August 3 and Carter will rule on the motion sometime after that. If Carter, for some reason, reverses himself and rules against the dismissal the case will go to trial on January 5, 2016.
Brunwin and Welk have a puncher’s chance. For the last eight years they have come across like Bluto and Brutus. Maybe deep down inside they are really Clarence Darrow and William Jennings Bryan. Maybe in the next two weeks they will write a really, really, really brilliant reply that will convince Carter to declare the United States to be the new North Korea.
But the Mongols nation case deflated the minute it was assigned to Carter. The real questions now are how much the government will have to pay Yanny and Min and how much of that amount, if anything, Brunwin and Welk have to personally pay out of their own personal bank accounts.
Yesterday’s motion asks Carter “for sanctions against the government for selective prosecution, and bringing a frivolous, malicious, and vexatious indictment against Mongol Nation.”
“It is important to understand,” the Mongols’ lawyers write, “that according to the indictment in this case the Mongol Nation, the defendant herein, was at all times a nameable defendant in the Cavazos indictment but was not named until the
government failed to impermissibly capture the Mongols collective membership mark, thereby unduly multiplying the number of proceedings in a harassing and vexatious fashion.”
The motion also notices that the government has gone to the lengths it has to destroy a club comprised mostly of “Hispanic men.”
“The government also believes that successful forfeiture of the Mongols collective membership mark would be equivalent to the death sentence to the Club;” the lawyers write, “presumably this is why they are attempting this novel theory of forfeiture against this organization of primarily Hispanic men.”
The lawyers accurately state, “The government has brought this case to…vexatiously exhaust the funds of that predominantly Hispanic organization and its individual members by forcing it to defend this complex, pseudo-criminal (who is going to jail?) lawsuit. In either case, the government is successfully oppressing this predominantly Hispanic organization. This is not only selective and malicious prosecution but is downright reprehensible.”
What Is Unique
Carter sanctioned the government in the Rivera case in the amount of $253,206.78. “…the controlling forfeiture, trademark, and First Amendment law make clear that the government’s actions were not substantially justified,” Carter wrote. “The present case ‘did not involve contested interpretations of an ambiguous legal rule.’ Instead, this case arose from the government’s ‘failure to follow a clear rule,’ indeed numerous clear rules.”
What might turn out to be unique about this case is the punishment of the prosecutors who have been pursuing it. The motion asks Carter “for sanctions against the prosecuting attorneys in this case on the grounds that they have unreasonably and vexatiously multiplied the number of proceedings recklessly and/or in bad faith. If the government’s theory of prosecution is correct, the Mongol Nation should have been added to the Cavazos prosecution as an additional defendant but was not. It is again important and significant that only when the government was unsuccessful in destroying the identity of this predominantly Hispanic organization that it unduly multiplied the proceedings by bringing the current prosecution.
“The prosecuting attorneys in this case have unreasonably, vexatiously, and recklessly multiplied the number of proceedings such that Defendant is entitled to sanctions against them personally under both 28 U.S.C. § 1927, and this Court’s inherent power.
“28 U.S.C. § 1927 states: ‘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.” Section 1927 was originally enacted ‘to prevent multiplicity of suits or processes, where a single suit or process might suffice.’”
“As there is ample evidence that the prosecuting attorneys have exercised bad faith and recklessness in instituting this suit, Mongol Nation moves for sanctions under both § 1927 and this Court’s inherent power to issue sanctions so as to prevent undue burden upon innocent organizations such as the Mongol Nation Motorcycle Club and its individual members who must ultimately bear the burden of such governmental misconduct.”
The essence of much drama is the moment in the play when the tables turn between victim and victimizer; when at last the bully must ask for mercy from his former victim. The Mongols Nation case has become a good drama. It might also turn to be a much needed lesson for bullying prosecutors everywhere.