Mongol Nation Reductio Ad Absurdum

February 26, 2019

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Mongol Nation Reductio Ad Absurdum

There is an important hearing this Thursday in the Mongol Nation case.

The court – the court is fellow named The Honorable David O. Carter – will hear arguments on three issues.

The first issue is whether this entire case is built on rock or sand. The government has argued that the turn of phrase “Mongol Nation” is an actual thing rather than a term of affinity. What the government successfully convinced a jury last December was that the Dodgers baseball team lost the World Series at the direction of Dodgers Nation. Mongol Nation is something both prosecutors and Mongols like to say. But it a phrase with many meanings. The government’s audacity in this case has been to insist that Mongol Nation means what the prosecutors say it means.

The second issue is whether an entity – an abstraction that exists in your heart and your mind – can be guilty of drug dealing and murder. The government’s case, as briefly stated as possible, is that “an unincorporated association” called Mongol Nation acting on behalf of the Mongols Motorcycle Club, is guilty of racketeering. Two government prosecutors named Steven Welk and Christopher Brunwin double talked a jury into agreeing to this.

Regardless of what the jury found “Mongol Nation” guilty of, it has been Mongols Motorcycle Club president David Santillan who has had to sit in court and listen to this bullshit for years. The Mongols Motorcycle Club is the actual defendant. And Mongols attorney Joe Yanny hopes a couple of motions he has filed, exposing the sand under the government’s splendid monument to sophistry, will put a stop to this case.

“If you can’t burn in hell you aren’t guilty of the sin,” is how Yanny likes to put it. The point of this case has never been to punish a wrongdoer. The point of this case for the last ten years has been to outlaw the rebellious, anti-authoritarian, peculiarly American phenomena of outlaw motorcycle clubs.

Yanny hopes that Carter, possibly as early as this Thursday, will recognize the absurdities in the prosecution and declare Mongol Nation innocent.

Constitutional Issues

If he does not, the issue of whether the government can seize the Mongols Motorcycle Club’s insignia will depend on Carter’s comprehension of the evermore faded, tattered and ambiguous Constitution of the United States.

The Constitution may bear heavily on any judge. Carter tried to lighten his load six weeks ago by soliciting amicus curiae briefs (or friends of the court briefs) from interested members of the public.

Carter wanted opinions on:

“Whether criminal forfeiture of any and all legal and equitable rights of any kind or nature associated with or appurtenant to a collective membership mark violates the First Amendment to the United States Constitution.”

“Whether forfeiture of a collective membership mark is feasible under intellectual property law.”

And, “Whether an unincorporated association is legally capable of committing the crimes of murder and/or attempted murder.”

Since you are reading this, there is a chance you care about this case. Not that many people are reading this. Not as many people care about this case as you might think. Which might be part of the problem.

Eventually five briefs floated in. Two of them support the Mongols. Two of them seem quite fatuous. And the fifth seems to have been bought and paid for by the prosecutors.

David Loy

David Loy, who is the Legal Director for the American Civil Liberties Union of San Diego and Imperial Counties in Southern California, wrote one the briefs that disapproves of prosecutors outlawing symbols common to well-known bad people. Loy fought and won a case titled Ramon Rivera versus Ronnie A. Carter, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); John A. Torres, Special Agent in Charge, ATF Los Angeles Field Division; and Eric H. Holder, United States Attorney General against the same prosecutors, Welk and Brunwin, who brought this case. Rivera was a Mongol who fought for the right to wear his patch. The government, with unlimited resources, fought Loy every step. He won anyway. Welk tried to keep the courts from reimbursing Loy for his time. Loy won that fight, too.

Writing about Mongol Nation last month Loy said, “The government certainly can’t prohibit people from wearing shirts or buttons supporting the Democratic Party, Black Lives Matter, or the National Rifle Association – and it can’t prohibit people from wearing the Mongols logo either.”

Taylor And Tinkham

A pair of Midwestern lawyers named Rodney V. Taylor and George W. Tinkham contributed an insightful brief. They both ride motorcycles and they both work for ABATE of Illinois.

ABATE, is the original bikers’ rights organization. It was formed by members of the Hells Angels and Easyriders Magazine to protest helmet laws in 1971. The name was originally an acronym for “A Brotherhood Against Totalitarian Enactments.” ABATE, or Abate, or A.B.A.T.E., is now generally understood to mean “A Brotherhood Aimed Toward Education.

Taylor also serves as general counsel to ABATE of Indiana and ABATE of Ohio. He is a well-known philanthropist and he was appointed Sagamore of the Wabash in 2007 by Indiana Governor Mitch Daniels.

They write:

“In response to the Court’s invitation, Amici propose addressing two questions:

“1. Whether criminal forfeiture of any and all legal and equitable rights of any kind or nature associated with or appurtenant to a collective membership mark violates the First Amendment to the United States Constitution,

“and 2. Whether criminal forfeiture of a collective membership mark violates the due process rights of individual members of a collective.

“The answer to both of these important questions is an unequivocal yes.

“The forfeiture urged by the Government impermissibly infringes on vital Constitutional rights of members of Mongol Nation and the broader rights of motorcyclists everywhere. Those rights that would be infringed include, but are not limited to, rights possessed by citizens and recognized under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States of America.

“The mark in question has been well-described in this matter: the caricature of a Mongolian warrior with top-knot and sword, mounted on a motorcycle. The word ‘Mongol’ appears in block letter above the image. The mark is used in a number of ways to identify those with permission to use it. Most prominently, the mark is featured as a large patch on the back of leather jackets or vests worn by motorcyclists. However, the mark may also be used on shirts, smaller patches, and other items, as well as being incorporated into tattoos. Additionally, the mark, or variations on it, are used by people who are supporters, but not members, of the club.

“The display of such logos and insignia by club members and supporters is a protected expression under the First Amendment, since it communicates the wearer’s association with, or support of, the club. Use of the mark helps identify members and supporters and helps those members and supporters identify with each other. As such, the marks are an expression of the users’ position on any number of issues, including motorcycling issues, and use of the marks by those who have been authorized to use them is clearly a form of speech protected by the 1st Amendment as expressive conduct.”

Rebecca Tushnet and Michael Tracy

Rebecca Tushnet is the most academically distinguished of the court’s new friends. She is the inaugural Frank Stanton Professor of the First Amendment at Harvard University. She joined Harvard Law School in 2016 after teaching at Georgetown University Law Center.

Unfortunately, no matter how full her head may be of useful law she dares not speak any of it. Her brief is partly titled “in support of neither party” and she seems determined to make sure everybody knows what “trademark” means.

She displays no awareness that this is, at its heart, a case about which symbols people may wear to a bar, and hang in their closets, and keep photos of on their phones.

Michael L. Tracy is a labor and personal injury lawyer in Irvine, California. He tends to litigate cases to make money rather than to right wrongs — except in the sense that he helps his clients who may have been sexually harassed, or slipped and fallen in the lobby of a big building, or been possibly injured bin some way by someone who is somehow connected to a big bank balance, get theirs. He is one of those lawyers who doesn’t get paid until you get paid. And, if he is to get paid, he needs court dates.

He writes he is:

“Concerned that the amount of time taken by criminal cases such as this are impacting a crowded docket. In reviewing the filings relating to the forfeiture, it appeared that neither side had clearly stated what they were trying to accomplish nor clear legal reasoning for how to accomplish it.

“Collective membership marks are a type of trademark and can be assigned and transferred similar to other trademarks. Prior to committing the criminal acts, Mongol Nation had the right to license the items to its own members and keep the profit from so doing. Because of the criminal forfeiture, those profits will now go to the future purchaser.

“Due process will be ensured provided the RICO forfeiture statute is followed.”

It seems possible that Tracy has learned everything he knows about this case by reading the Los Angeles Times while listening to ABC7 Eyewitness News!

Stefan D. Cassella

Stefan D. Cassella, on the other hand writes as if he learned about this case in whispers, in bed, with Welk.

He is a former Deputy Chief of the Justice Department’s Asset Forfeiture and Money Laundering Section and was the Chief of the Asset Forfeiture and Money Laundering Section in the U.S. Attorney’s Office in Baltimore. He “drafted many of the federal forfeiture and money laundering statutes.”

He is currently the proprietor “of AssetForfeitureLaw, LLC, a consulting company providing professional services relating to the recovery of criminal proceeds and the suppression of money laundering activity. His clients include the FBI, the Special Inspector General for Afghanistan Reconstruction (SIGAR), the U.S. Secret Service, the World Bank, the Department of Justice and U.S. Attorney’s Offices, as well as financial institutions, NGOs and private law firms. He has appeared as an expert witness in state and foreign courts regarding the federal asset forfeiture and money laundering laws.”

The government will probably lean heavily on Casella’s brief if they have to appeal this case. Most readers will be most impressed by the way he just prattles on about “Mongol Nation” as if it was General Motors.

“Defendant Mongol Nation has objected that there is a constitutional objection to the entry of the forfeiture order that the Government has requested: that the forfeiture would violate the First Amendment rights of Defendant and its members…. The undersigned amicus submits that that there is no such bar to the entry of the forfeiture order.”

“It is well-established that tangible personal property that would be used to engage in expressive conduct may be forfeited if the reason for the forfeiture is unrelated to the content of the intended speech,” Cassella moans on. “ For example, in United States v. Any and All Radio Station Transmission Equipment, the Ninth Circuit upheld the forfeiture of radio broadcast equipment that the defendant used and intended to use to engage in radio broadcasts without a license to do so. The forfeiture of the equipment, the court said, does not implicate the First Amendment if the reason for the forfeiture was the violation of the licensing requirement, and not the content of the intended speech. Indeed, it is also well-established that tangible personal property that itself contains expressive content otherwise protected by the First Amendment may be forfeited if the forfeiture is based not on the content of the property, but on the connection between the property and another crime.”

“The forfeiture of the Marks in this case does not prevent Defendant from engaging in the recreational enjoyment of motorcycle riding, of affiliating with like-minded enthusiasts, or of creating a new patch, insignia or other accoutrements signaling that affiliation. It would only forbid the future use by Mongol Nation of the particular Marks that were used in furtherance of the drug offenses, murders and other acts of violence of which it has been convicted.”

“Defendant’s challenge to the forfeiture of the Marks in this case is…misplaced. Because the Marks are intangible rights subject to forfeiture…and because the forfeiture is unrelated to the content of the expressive nature of the Marks, and because Defendant has the right to engage in future expressive conduct of the same nature, albeit without the use of the particular Marks that it used in the past to commit acts of racketeering, the forfeiture ofthe Marks is mandatory under RICO and is not barred by the First Amendment.”

Cassella does no reveal if, or how much, he was paid for his brief.

The case, as police are fond of saying, continues.

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17 Responses to “Mongol Nation Reductio Ad Absurdum”

  1. commonsense Says:

    T Big V Have you ever read James Lee Burke ? I think you would like him

  2. BTown Says:

    MONGOL ON Fellas,MONGOL ON! Still L&R

  3. Potmetal Says:

    LA Times reporting that Carter declines to strip their trademark.

  4. What Ever Says:

    Apparently a decision has been made. It looks mostly favorable to the mongols. I’m sure the government will appeal.

  5. Stevo Says:

    A little birdie tells me there’s been a vwry happy development in this case…

    Stevo

  6. BigV Says:

    You know, Not Surprised, put up what is one my most objectionable points to any RICO prosecution.

    RICO’s foundations were Robert Blakely under Sen. McClellan. The base test was an enterprise test, rooted in economics.

    I can say, at risk of someone giving me a good smackaroo(the type that gets your attention, not type that dulls the senses) that I spent many hours around several MC’s.

    I knew people who had legal problems- but those legal problems were their own doing. Some of those people decided to trade their souls for thirty pieces of silver and try to bring their brothers into the mix in order to save their own asses.

    Well, the reality is that there was no enterprise related to the Motorcycle Club itself. Until this bullshit, there has never really been a whole club put on trial, never a whole chapter even. Why ?

    Because motorcycle clubs fail the enterprise test that Blakely based his RICO work under. Even Blakely has admitted that RICO has been warped beyond all possible recognition. RICO requires an enterprise test and that requires a portion of Law and Economics to be used. Law and Economics is the intersecting branch of legal theory and applied economics where economics answers some of the questions that legal theory cannot.

    The enterprise test basically asks a couple questions. Is the organization established for the purposes of commercial, industrial, or business activity which is established or organized for the purpose of profit ?

    There are two things I can absolutely tell you: (1)John Wayne was never on the sands of Iwo Jima. (2) No real MC is an enterprise- it does not exist for profit. You can find some guys who’ve got good educations or good families or just worked their tails off, and they’ve got money- but it is their money. NOT THE MC’s. When club dues are due, the member that is wealthy does not pay for another brother’s outstanding dues. A member that is wealthy does not profit from the club. Being in a club is a zero sum game- the club most of the time does not have money for runs(small chapters often catch shit for having rough, shitty runs, but most everbody has a good time); the club often times doesn’t have enough money to fully stock the well of the bar and relies on donations to pay for a drink(and yes if you are a guest of most clubs you’ll get free drinks til you’re inebriated- you’re just a shitty guest for not paying the suggested donations; most club brothers have to trade parts or rely on a brother with tools and mechanical ability to fix their bikes. I remember one guy had purchased a 74ci EVO Sportster, and it ate it’s S&S and Andrews wheaties and became a 96ci Sportster. Except the people keeping it running were the guy who could do the menial machine work, the brother with the lift and all the tools, the torque adapters, the slugging wrenches. We kept his bike going and he quit being a damned car hop and helped fill up the well.

    You trade your individual rights to wear a patch or support gear or some logo related to the MC for the brotherhood and the bikes. That’s it.

    No profit to it. At 36, I have a PhD that will never be finished, and is useless. I have had encounters with law enforcements. Other people have bruised their knuckles on me, I’ve bruised my knuckles on other people.

    In 18 years, I heard of one patch pulling and it was by a club up out Kansas way, and they jumped on a guy and took his patch. They got the honor of sending it FedEx overnight, they had the leather cleaned, and the patches wear taken off and dry cleaned. They lost about $400 on the stupidity. It was a zero sum game. Yes, one of their idiot members could claim- “I pulled a patch”- with his Howdy Dowdy grin, but they lost $400 and a lot of people’s respect. The club later disbanded itself because of shame- and that’s honestly what it was.

    The point is: RICO DOES NOT EVEN APPLY TO MC’s. We’re broke- 99% of us. We’re broke off our ass. We live pay check to pay check. Our money goes into our family, our bikes, our dues, and some people drink. An MC exists because of biking and brotherhood. That is it.

    Here is what goes on at a church meeting(boys- I got pins in my hip, and I ain’t healed yet, so could you wait on keelhauling me ?).

    1. You take roll, you remember the brothers who aren’t there because they gave their lives for biking and brotherhood(if they gave their lives for other stupid shit- no, typically they aren’t remembered). If someone isn’t there, you have to go back outside church, find a landline, and call around looking for the lazy person who didn’t who up.

    2. You discuss anything to do with the club: who’s visiting, is there someone who wants to transfer in/out, is someone on medical leave returning or turning in club property

    3. Brothers discuss matters of interest- we talk politics- as in real actual politics that affect our jobs, retirements, and ability to ride the way we want to ride.

    4. We discuss our interactions with other clubs. We genuinely want good relations with other bikers. HONEST TO GOD, WE DO.

    5. We ask each other how projects and honey do’s are going. Wife wants a new carport for her Sienna ? Can’t afford it. One person has timbers- 4″x4″x10′, one person works at a concrete company and can drop off leftovers til a pad is laid, one guy has tin, one guy is a roofer. Carport comes together. Another guy has a GM diesel that needs the motor changed out, bring it by the garage, we got a gantry and hoist, presto changeo, the burnt out 6.2L is replaced by a nice 6.5L Turbo Diesel by Detroit Diesel. Yes, the catalytic converter and O2 sensors were hooked back up so nobody get any ideas that we RICO’d Mother Nature. One dude just needed sod hauled. We talk about each others kids, people are proud of their children. Sometimes if a kid’s birthday is at family day or several are near family day, we get a big cake, and there are presents and rides. And as a side note to Billy Queen: you may have been reliving a scene from your own childhood where mommma and daddy didn’t have no money for presents and Aunt Bea brought you a police and a firetruck from the Mayberry playset, but I never saw a kid not have a party on his birthday. If a kid is getting into trouble, a brother who has been in trouble, seen the error of his ways, may talk to the trouble maker and tell the youngin’ what it is like to live in an environment that is segregated, where you make a left turn when a gunbull tells you to make a left, even though the colored line says follow RIGHT. Having to lose all privacy and urinate and eliminate inches from another man. Being at risk because of your skin tone or your body build or your youth. A brother that has been behind bars will flat scare another brother’s child straight if asked. And having heard one myself when a kid was misbehaving, I think I eliminated a little. I know the kid joined the baseball team, quit hanging out with spray paint huffers, and he changed from a D/F student to a B/C student and got a welding degree.

    5. We actually lecture each other: don’t do stupid illegal stuff. A man who was a club member predicted he would go to prison for saying to his brothers “Don’t do illegal or immoral stuff.” We still say- don’t do it. Your business outside the club is your business but that stuff is inseparable and condemns us all.

    6. Church adjourns and we watch tv, browse the internet, federal prisoners can email us, there are women who want to meet us, there are men of all age, race, ethnicity, religion, and skin tone who want to meet us and find out what MC life is about.

    7. Errata: There are exceptions to every rule, there are bad people that get into chapters for bad reasons, there are good men who let life slug them in the chest until they become bad men. There are bad chapters that need to be shut down and are shut down. In the fine and well beloved but oft misunderstood short story, “A Good Man is Hard to Find”- the antagonist of the story can be paraphrased to say, “They’d been good people if someone was there to kill them every moment of their life.” My favorite authors are Flannery O’Conner, Stephen Crane, and Joesph Conrad, some Ambrose Bierce thrown in is also good. Were Mr. Bierce alive, I think he’d have something to add to the Devil’s Dictionary about this farcical judicial moment in history.

    My favorite authors understood that humans are not monsters nor are they saints. My favorite brothers and hangarounds and women understood the same. We are human beings, prone to failings, prone to err. In the MC world, some will err and the club will try to help guide them back(see LV Mongol Face).

    If the good jurist trying this happens to find this, I ask him to check a link I attached.

  7. Sieg Says:

    They really gotta quit selling motorsickles to the general public…

    FTF/FTP
    TOSIAR

  8. commonsense Says:

    Rebel you have done your due diligence on this article. I have a question for you and your readers. If I had a vest made that said Rammstein across the top with Germany across the bottom with the German flag in the middle…and NO MC whatsoever on the vest is this wrong to the %1. And I want to clear the air. I’m 60 this is just for me and I’m not trying to start a club.

  9. freebird Says:

    Here we are the night before…..

    Still waiting for the Los Angeles Times to have the breaking news that there has been a no fly zone surrounding the court house just issued.

    Shelter in place and avoid areas with glass windows……

  10. david Says:

    First Amend. protection of freedom of speech, freedom of expression and freedom of association exists to protect groups or associations, smaller in number than the general population, from the tyranny of society’s majority.

    Constitutional law (Bill of Rights), predates and supersedes RICO,and existed long before Welk or Cassella ever did.

    Brennan, in Texas v Johnson, “If there is a bedrock principle underlying the First Amend., it is that the government may not prohibit the expression of an idea simply because society finds the ‘idea itself’ offensive or disagreeable.”

    Tough shit if society finds the “idea” of MC’s offensive. It needs to get over it.

  11. Not surprised Says:

    There is to my knowledge, no precedent in RICO for seizing non monetary items. That’s why it’s called “asset”.

  12. Bone Head Says:

    Cassella’s “brief” should be thrown out because he is clearly a tool of the goberment, and in all likelyhood has a financial interest.
    That said, it would be interesting if Welks and his butt budies were the target of a civil suit by taxpayers for this monumental waste of the taxpayers’ money.
    I know, I know. It’ll probably never happen.

  13. STROKER Says:

    “It is well-established that tangible personal property that would be used to engage in expressive conduct may be forfeited if the reason for the forfeiture is unrelated to the content of the intended speech,”

    That statement right there should scare the hell out of anybody following the convoluted twists and turns of this exercise in government attempted theft. This guy, Cassella, his credentials mark him as a federally authorized mob boss, who can twist our first amendment rights (among others) to make theft legal, not only in this case, but in any case involving property that LE wants!
    No matter the jury didn’t know what the entity was they were finding guilty, this character and others like him (Brunwin – Welk) will keep wringing out the legality of our 1st amendment rights with all the subtlety of Pelosi and her ilk going after our 2nd amendment rights. It’s the beginning of the end of constitutional rights if these buggers are allowed to enact their game. They don’t care about anything but winning their perverted point of view…..and will scramble any laws they can until it approximates their desired outcome.
    At our end, those of us in clubs, the outcome to this charade will have far-reaching implications. Anything that happens to the made-up entity of “mongol nation” could conceivably change or even end our wearing of “colors”. And that’s a huge problem, even in my own club. When I get on my soap-box and tell the members they need to take care in what they do when wearing our patch, I’m met with “ho-hum yeah, you’ve told us this before….so what…blah-blah-blah…”
    I worry….damn right I do. There are creatures like Welk and Brunwin under every rock, just waiting for a chance to make their mark by knocking us “gang members” down a peg or two.
    Wake up club members, it’s the end of the world as we know it.

  14. david Says:

    Cassella’s cite of U.S. v Any RADIO STATION Equipment does not apply due to the fact the forfeiture was due to a lack of a gov. issued broadcasting license, and there are NO licensing requirements for a patch.

    Also, other writers mere statement the collective membership marks are “trademarks”, WITHOUT the legal history thereof, is meaningless at best.

  15. jrino Says:

    This case {like the star of David or the Swastika} is a slippery slope the judge or a judge will not want to go down. Headed to the dust bin of waisted time by our government!

  16. freebird Says:

    So, Cassella and Welk take long hot showers together and discuss legal matters

    “Defendant’s challenge to the forfeiture of the Marks in this case is…misplaced

    Kind of like who’s turn is it to drop the soap…….

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