Expect the Mongols Nation case to be dismissed by Judge David O. Carter next Monday afternoon. A hearing on the dismissal is scheduled for 2 p.m. in Carter’s courtroom in the Ronald Reagan Federal Building and Courthouse in Santa Ana, California.
The case has attracted national attention. At issue is the question of whether the government, or a couple of rogue federal prosecutors named Christopher Brunwin and Stephen R. Welk, can forbid members of the Mongols Motorcycle Club from wearing the club’s distinctive insignia. Brunwin and Welk have made careers of this. They attempted to seize the Mongols trademarks in a criminal case called U.S. versus Cavazos and others and again in a civil case named Ramon Rivera versus Kenneth E. Melson, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives and others. They lost both those cases. American Civil Liberties Union attorney David Loy who represented Rivera called the attempted seizure of the Mongols patch “an outrageous violation of the First Amendment, and an absolute abuse of forfeiture and trademark laws.”
But Brunwin and Welk continued with what Mongols’ attorneys Joseph A. Yanny and Elliot H. Min call “a pointless prosecution.” Monday Judge Carter, will probably, finally put a stop to this, preclude the government from trying to seize the patch of any other motorcycle club and tell Brunwin and Welk, or at least the Department of Justice, to pay Yanny and Min’s legal fees.
Carter will rule on three key issues: The forfeitability of the Mongols patches; a legal principal rarely cited in criminal cases called Nonmutual Defensive Collateral Estoppel; and whether the government and the prosecutors acted “unreasonably, vexatiously and recklessly” in pursuing this case.
If the government were to win this case the only consequence would be a subsequent attempt to seize the Mongols name and patch. No matter who wins or loses, nobody is going to jail. So the Mongols attorneys have asked Judge Carter to rule on the legality of the inevitable attempted seizure now.
For the last six years, Welk has argued before a succession of federal judges that there must be a trial before there can be a consideration of the forfeitability of the Mongols patch. For awhile he was fond of the slightly lewd phrase, “premature adjudication.” In this case he has argued that he doesn’t know whether the government will pursue forfeiture or not – which, since it is the only thing the government has to gain from a three month long trial, seems like a transparently mendacious thing to say. In their Reply filed yesterday, the Mongols argue that “no evidence can alter the reality that a collective membership mark as a matter of law is not subject to criminal forfeiture, because the owner of such a mark holds the mark in trust for the members. The government’s insistence that this issue be determined only after conviction is an attempt to put form over substance…. This Court possesses the inherent and supervisory power to conduct its proceedings to avoid unnecessary procedures.”
“Lastly,” the Reply argues, “the law never requires a futile act…. Since the Mongol Nation is an entity and the only named defendant, no individual in this criminal case is subject to incarceration. A guilty conviction without forfeiture would be meaningless and equivalent to this Court rendering an advisory opinion in contravention of Article III of the United States Constitution….Therefore, waiting for conviction before adjudicating forfeiture is a futile act that this Court possesses the power to avoid at any stage of the proceeding.”
The Reply also cites a concept called “Nonmutual Defensive Collateral Estoppel.” Briefly stated, the clumsy phrase means that the Mongols, and potentially any other motorcycle club, can prevent government prosecutors from relitigating an issue the government has previously litigated unsuccessfully in another action against a different party. Yesterday’s Reply argues “the issue of whether the collective membership mark is forfeitable is the identical issue that was previously litigated adversely to the government in both Rivera and Cavazos.”
Depending on what Judge Carter makes of the concept, he may rule that Rivera and Cavazos preclude similar attempts by the government to seize the insignia of the Vagos, Bandidos, Outlaws, Pagans, Warlocks, Sons of Silence or any other motorcycle club that has a similar organizational structure. The Hells Angels, because of that club’s unique organizational structure, may already be protected from government attempts to seize its name and insignia.
The Mongols Reply argues defensive estoppel “precludes a plaintiff from relitigating identical issues by merely switching adversaries…. The government’s attempt to obtain the same forfeiture in the instant case violates principles of judicial economy
and thus mandates the government be estopped from relitigating the same issue….”
The Reply also chastens Brunwin and Welk for their conduct in pursuing the Mongols for the last seven years. “Government prosecutors have a duty, under Berger v. U.S., to not casually treat the truth like a nose of wax to be twisted, turned, and shaped depending upon what they believe will most please the audience; they have an ethical obligation to the accused; it is not about winning or losing, it is about doing justice. More importantly, the duty of a government prosecutor is to avoid doing an injustice.”
Berger v. U.S., is a 1935 decision in a case about prosecutorial misconduct. In that case Justice George Sutherland defined prosecutorial misconduct as, overstepping “the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”
“The United States Attorney,” Sutherland wrote, “is the representative not of an ordinary party to a controversy, but of a sovereign whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilty shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Yesterday Yanny and Min wrote, “since the inception of this case when the government attempted in bad faith to judge shop, and in spite of the ethical standards set forth in Berger v. U.S. to which federal prosecutors are held, the government has consistently attempted to gain improper and impermissible advantage over the accused in this case that warrants sanctions and dismissal of the indictment.”
“The sleight of hand pleading described in prior sections of this brief coupled with the clear attempt to improperly navigate the instant case into a forum of its choosing is more than enough evidence that the government has acted improperly and breached its ethical duties set forth in Berger v. U.S. to proceed with a pointless prosecution where no one is going to jail even if they win thus wasting everybody’s time and money. This clearly warrants the maximum sanctions permitted by law against the government and its prosecuting attorneys in this case, and the dismissal of the indictment in its entirety.”
The dollar amount of the sanctions that may leveled against the Department of Justice or Brunwin and Welk remains unknowable but it possible to guess. In the Rivera case Carter sanctioned the government $253,206.78. The money paid Rivera’s lawyers and their costs. “But that was a summary judgment,” Yanny said in a brief phone interview this morning. “We were ready to go to trial.”
The dollar difference could be substantial.