So now, the year long minstrel show in the Roybal Federal Courthouse has degenerated into this: Acting United States Attorney George S. Cardona, after getting an extra two weeks to come up with something, anything, to save face, is now complaining that the judge in the Mongols case “prematurely adjudicated” all over the government’s beautiful criminal forfeiture dreams.
These prosecutors are starting to sound like a Foghorn Leghorn cartoon. “Pay attention, boy! I’m cuttin’ but you’re not bleedin’!”
No MCs Allowed
The whole point of this case, from the very beginning, has been to try to make motorcycle clubs illegal. Because the Mongols were definitely slipping while Ruben “Doc” Cavazos was running the club, and because the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had previously patched an agent into that club, the government went after the Mongols first.
Six weeks ago, in a civil case titled Ramon Rivera versus Ronnie A. Carter et al., Federal District Judge Florence-Marie Cooper ruled that it is not illegal to belong to the Mongols Motorcycle Club; that in this country citizens have the right to join any motorcycle or political or religious or country club they want; and that the government should stop harassing and terrorizing citizens because they might own or once have owned some article of Mongols memorabilia. In other words, Judge Cooper is not going to make motorcycle clubs illegal.
Even today, the government still cannot get its mind around this heartbreaking disappointment.
The Zombie Prosecution
This past week the government coerced another three defendants into confessing that they were members of the “Mongols Gang,” and that the Mongols is a “criminal enterprise” involved in a pattern of “racketeering activity.” The three latest victims of this hysterical paroxysm are named Richard Espinosa, Jason Hull and Austin Klint Melcer. So far at least 33 defendants have confessed that the Mongols Motorcycle Club is a criminal racket. All of these confessions are reminiscent of justice as the word is defined in police states.
The government’s case has become a Zombie prosecution. It is already dead but it refuses to give up and fall down. It seems very unlikely that the Ninth Circuit Court or the Supreme Court is going to agree with the government on appeal. The United States Attorney who authored this heaping pile of Mongolian cluster law has already quit and run away to defend white collar criminals.
Cardona, the good sergeant, has been left behind to hold the firebase while awaiting further instructions. And apparently his radio is dead and he is running out of bullets.
Apart from the criminal prosecutions of the remaining defendants who insist they are innocent, there are two, inseparable legal issues that remain formally unresolved. Simply stated they are: First, can the government just go ahead and seize the Mongols patch and anything decorated with either it or the word “Mongols;” and second, does the government have to give back what it has already seized from unindicted members and supporters of the club.
Judge Cooper has, for all practical purposes, already ruled against the government on both issues but before she decides that ruling into law she has given the prosecutors another chance to reinforce their arguments. Until this week, the government has been speechless. Prosecutors were so flummoxed by Judge Cooper’s ruling in Rivera and in another hearing on August 6th that they begged for and got a long delay.
The Government Argument
Here is what they finally came up with:
“On August 6, 2009, this court issued an Order (the ‘August 6 Order’) in which it denied the government’s unopposed application for entry of a preliminary order re registered trademarks and the government’s motion to strike a motion by non-party movant Mongols Nation Motorcycle, Club, Inc. (‘Movant’) by which Movant seeks to intervene in this criminal prosecution with respect to the forfeitability of property against which criminal forfeiture is sought. The August 6 Order incorporated by reference and adopted the legal analysis undertaken and conclusions reached by the Court in an order issued on July 31, 2009 in a separate civil case (Rivera v. Carter, CV 09-2435 FMC) (the ‘July 31 Order’), in which another non-party to this criminal prosecution sought to collaterally attack the Amended Order Restraining Trademark entered in this case by motion for a preliminary injunction limiting the scope of the Amended Order. The net result of these two collateral attacks by two non-parties to this case was the adjudication of the merits of the government’s criminal forfeiture claims in this prosecution, contrary to the explicit provisions of 18 U.S.C. § 1963(i) and Federal Rule of Criminal Procedure 32.2, which govern federal criminal forfeiture proceedings.
“…the Court’s adjudication of the merits of the criminal forfeiture…was
improper and contrary to law.”
Not exactly Hemingway, is it?
Mongols Lawyers Unfairly Good
Throughout all of this past June and at least half of July gloating, bullying government agents were breaking into cars and invading homes in order to steal citizens’ private, personal property. “The government has voluntarily suspended…seizure of items bearing the restrained mark from non-defendants, meaning that no Mongols gang member need fear that the symbols of his membership in the criminal enterprise will be seized from him pursuant to the Amended Order,” the government now coos to the judge. And so, “the government should not be required to return any property seized.”
The Mongols seem to have changed, or at least supplemented, their legal representation in this matter in the late Spring. In Rivera, the plaintiff was represented by the San Diego office of the American Civil Liberties Union. This legal supplementation has obviously been very effective. Because, among several other complaints, the government resents the fact that the Mongols Motorcycle Club is now adequately lawyered up.
“The sudden emergence of this issue at the literal tail-end of the extensive briefing in Rivera, and the absence of any briefing whatsoever on the issue in this case, presents substantial issues of fairness and substantive analysis,” the government complains. “Plaintiff in Rivera failed to mention the supposed significance of the in personam nature of criminal forfeiture in either his original moving papers or his original reply.”
The government lawyers, the government contends, are the real victims here. Not the guy in the wheel chair who had his Mongols bandanna confiscated by a SWAT Team.
The government’s brief was filed Monday. The Mongols’ attorneys have until next Monday to file a reply. Then Judge Cooper will decide who has won and who has lost this case.
But as even the prosecutors openly concede, Judge Cooper has already adjudicated “the merits of the criminal forfeiture.” Whether that adjudication was “premature” or not should not matter. Even the government knows it has already lost this case.