The Mongols Motorcycle Club has won the fight over the seizure of its trademarks. United States Attorney Thomas P. O’Brien has lost his case. The club continues to own its name and its patch and has a constitutionally protected right to continue to exist.
Last October 21st, a brash press release announced the unsealing of a “racketeering indictment that (charged) 79 defendants” associated with “the violent Mongols outlaw motorcycle gang.” The headline grabbing news in the release was that “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 bragged. “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.”
Pulling the Mongols patch was unequivocally the principal point of the indictment. The indictment culminated a three year-long domestic spying operation conducted by the Bureau of Alcohol, Tobacco, Firearms and Explosives called “Operation Black Rain.” As of this writing, at least 25 former members of the Mongols Motorcycle Club have pled guilty to Count One of the indictment. That count alleges that the Club is a murdering, drug dealing criminal enterprise. Beyond a shadow of a doubt, the government coerced those defendants into making those racketeering pleas in order to build its case against the club as a whole.
Among the confessed criminal conspirators was former club President Ruben “Doc” Cavazos who claimed ownership of the club’s trademarks and attempted to forfeit them to the government as part of his plea deal.
For at least six weeks, unrestrained and gloating ATF storm troopers and other police officials have been harassing American citizens simply because they are or may be or may have at one time been Mongols. Government agents have been invading people’s homes and breaking into their cars in order to steal their personal property.
In two rulings, on July 31st and August 6th, Federal District Judge Florence-Marie Cooper has now put a stop to this.
In the case 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 Judge Cooper enjoined “…the Government, its officers, agents, servants, employees, and attorneys, and anyone in active concert or participation with any of the foregoing persons, from seizing, or asking or directing any other person or entity to seize, from Plaintiff any property or item bearing or displaying all or part of the collective membership mark at issue in (the case) United States v. Cavazos.”
A week later Judge Cooper denied “the Government’s Application for Entry of Preliminary Order of Forfeiture as to Registered Trademarks, Pursuant to Guilty Plea of Ruben Cavazos.” In the same ruling Cooper also denied “the Government’s Motion for an Order Striking Motion by Movant Mongols Nation Motorcycle Club, Inc. for Amendment of Post-Indictment Restraining Order.”
The issue of the forfeiture of the Mongols trademarks has not yet been formally decided. However, it is clear from the judge’s discussion in Rivera that she has already made up her mind.
The Mongols Marks
The government has sought to destroy the identity of the Mongols Motorcycle Club by seizing two registered trademarks. The “verbal mark,” is the word “Mongols” when used to mean a particular motorcycle club. The “visual mark” is a black and white drawing that depicts a Mongol with a top knot, bell bottoms and cowboy boots, riding a rigid framed motorcycle and brandishing a scimitar.
The government rationalized this seizure with the argument that Cavazos “has admitted as part of his plea (and the undisputed evidence conclusively confirms) that the Mongols Registered Trademarks were acquired and maintained by defendant (Doc Cavazos) during and in the course of the operation of the RICO enterprise.” And, the argument was bolstered by more than a score of guilty pleas that supported Cavazos admission.
Cavazos’ “admissions also establish that the Mongols Registered Trademarks afforded a source of influence over the RICO enterprise that (the) defendant admits he established, operated, controlled, conducted and participated in the conduct of, rendering the marks subject to forfeiture.”
Chain Of Ownership
While he was running the club, Cavazos transferred ownership of the trademarks to a corporation he owned called Shotgun Productions. Last August, his successor as Mongols President, Hector “Largo” Gonzalez, transferred ownership of those marks back to an unincorporated association named Mongols Nation. Then Gonzalez transferred the marks in January 2009 to a newly-formed corporation called Mongols Nation Motorcycle Club, Inc.
The government built its case for forfeiture on this complicated chain of ownership. The Mongols Corporation, the government argued, had no standing to claim ownership of the trademarks because it did not exist until this year. The unincorporated association had no standing because it had relinquished its ownership of the marks. Cavazos, the government’s reasoning went, had stolen ownership of the trademarks when he put them in the name of Shotgun Productions. And at the moment of that theft the club became his criminal enterprise.
Until the middle of June Judge Cooper seemed to agree with the government’s argument. This month the lady changed her mind and blew the government’s arguments to smithereens. The key decision came in the Rivera Suit.
The Rivera Suit
Ramon Rivera is a Mongols patch holder who was not charged in the case United States versus Cavazos. In Judge Cooper’s words, “Plaintiff has often worn a jacket or shirt displaying the collective membership mark, both at Club activities and elsewhere. To Rivera, his display of the mark affirms his membership in the Club, and symbolizes unity and brotherhood with his friends and fellow Club members. Plaintiff has personal knowledge that if law enforcement officers saw him wearing items displaying the Mongols mark, the officers would confiscate those items. Due to the Government’s threat of seizing items displaying the mark, and its actual seizure of such items, Plaintiff is chilled and deterred from publicly wearing or displaying any item bearing the mark and is currently refraining from doing so.”
So, with the assistance of the San Diego office of the American Civil Liberties Union, Ramon Rivera sued the bastards.
The government sought to dismiss Rivera’s suit on the grounds that he had no standing. It is the same argument the government has used against the Mongols corporation. And, Judge Cooper rejected that argument like this:
“…the Government acknowledges Plaintiff will be unable to participate in any post-forfeiture ancillary proceeding because he claims no interest in the collective membership mark. If Plaintiff were denied standing for having no interest in the mark, Plaintiff would be denied any opportunity to challenge the potential seizure of his property and the governmental intrusion upon his rights. Plaintiff cannot be left without any remedy and must, therefore, have standing to pursue his claims in this case.”
The Government Cannot Seize The Patch
Then the Judge went on to completely demolish the government’s attempt to seize the Mongols trademarks.
“Even if the Court were to accept the Government’s evidence that Ruben Cavazos controlled the use of the mark during his tenure as National President,” Cooper wrote, “there is no support for the notion that a defendant’s control of property belonging to a RICO enterprise is sufficient to establish a forfeitable ownership interest in the property. In addition, there is no evidence that Ruben Cavazos owned a majority interest or any interest in the Mongol Nation that would equate to an ownership interest in the mark. There is no evidence that Shotgun Productions, LLC ever used the mark as a collective membership mark – to indicate membership in an organization substantially similar to that of the Mongol Nation. The purported assignment to Shotgun Productions, LLC is therefore without legal effect. Moreover, the Government’s evidence demonstrates that the Mongol Nation began using the collective mark in approximately 1969, and either Mongol Nation or Mongols Nation, Inc. continues to use the mark to identify their members. The Mongol Nation and Mongols Nation, Inc, by virtue of having used the collective membership mark since 1969, having registered the mark in 2005, and having continued use of the mark to identify members of the club, have acquired and maintained exclusive ownership in the collective membership mark at issue.”
In a direct rebuke of the ATF Agents who have been stealing patches, tee-shirts and memorabilia from Mongols members and sympathizers the judge wrote, “…even if the Court were to assume that the collective membership mark is subject to forfeiture, the Court finds no statutory authority to seize property bearing the mark from third parties…. only defendants’ interests in the RICO enterprise and the proceeds from their racketeering activity are subject to forfeiture.”
The First Amendment
Finally, Judge Cooper accused the ATF of lying to her and of attempting to suppress a constitutionally protected, political viewpoint.
“At the June 22 hearing,” she wrote, “the Government revealed for the first time that the mark it sought to forfeit was a collective membership mark. Previously, in its Ex Parte Application for Post-Indictment Restraining Order, the Government (in this case ATF Case Agent John Ciccone) referred to the mark simply as a trademark, which was ‘purportedly for use in commerce in connection with promoting the interests of persons interested in the recreation of riding motorcycles.’ 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…. If speech is noncommercial in nature, it is entitled to full First Amendment protection, which prohibits the prior restraint and seizure of speech-related materials without a judicial determination that the speech is harmful, unprotected, or otherwise illegal.
“Prohibiting speech of this nature constitutes an attack on a particular viewpoint. In Sammartano (v. First Judicial District Court, in and for the County of Carson City) the Carson City courthouse enacted a rule to prohibit admission of those with ‘clothing, attire or colors which have symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations,’ because ‘such clothing or attire can be extremely disruptive and intimidating, especially when members of different groups are in the building at the same time.’ 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.”
In other words the Mongols have won. The government has lost. The Mongols trademarks belong to and will continue to belong to the Mongols Motorcycle Club.