Obviously, the government wants a rematch in the fight for the Mongols trademarks. Preferably, sometime after Judge Florence-Marie Cooper retires next spring.
Last Monday federal prosecutors filed a motion in the Ramon Rivera v. Ronnie Carter etc. et al. civil case asking Judge Cooper to dismiss the Rivera suit. The motion asks for a hearing on December 14th. The government argues that Rivera’s suit should be dismissed on grounds that it is moot – which is to say that there is no longer an actual legal controversy between the government and unindicted members of the Mongols Motorcycle Club over whether they may or may not wear the club’s patch and top rocker.
Throughout the 13 months of this case, the government has sought to criminalize membership in the motorcycle club: To in effect secure an unconstitutional Writ of Attainder against the Mongols Motorcycle Club. The government’s original strategy was to seize the name Mongols and the Mongols logo. As part of his plea deal, former Mongols President Ruben “Doc” Cavazos claimed he owned the Mongols trademarks and then gave them to the government.
Did Doc Own The Marks
Federal police then proceeded to seize every piece of Mongols memorabilia they could locate. Rivera, who was not indicted, then enlisted the assistance of the San Diego office of the American Civil Liberties Union to make the government stop.
Last July 31st, Judge Cooper ruled that the government could not seize the trademarks because Doc Cavazos said they could.
“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.”
Are Mongols Fair Game
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.”
Then Judge Cooper went on to explain that she would probably never allow the government to seize the Mongols marks.
“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.
Did Cooper Make Up Her Mind
“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.”
The government has been fighting the judge on this for the last three and a half months. Government prosecutors have blatantly stalled. They have accused the judge of “premature adjudication.” In the motion filed this week, the government makes two arguments, one old and one new. The old argument is that Rivera “lacks standing” because he was not indicted.
They Will Not Do It Again Maybe
The new argument is very cute and sophistical. In an exhibit to an attachment to the motion, federal forfeiture attorney Steven R. Welk states that:
“Within days of the issuance of this Court’s July 31, 2009 Order Granting Preliminary Injunction in the action entitled Rivera v. Carter…I instructed the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to suspend execution of the seizure authority of items bearing the trademarks restrained in this Court’s Amended Order Restraining Trademark issued October 22, 2008 as against individuals who are not defendants in this action. I have been informed by ATF that national enforcement of the seizure provisions of the Amended Order as against non-defendants was suspended in early August of 2009 and shall remain suspended pending further instructions from my office. I will not instruct any law enforcement agency to resume seizure activities against non-defendants pursuant to the Amended Order without a further order from this Court.”
What the argument boils down is that the government is no longer breaking the law so there is no reason for the court to redress the harm it did when it was breaking the law. And, the argument continues, the government will not “resume seizure activities against non-defendants…without further order from this court.”
What goes unsaid, of course, is that the court will still be there next April when the criminal trial is now scheduled to start. Judge Cooper, who has already told the government not to do what it wants to do, will only be in charge of that court until March 15th. And, maybe the new judge will agree with the government.
The government still clearly intends to try to seize the Mongols name and patch. If that was not the case the government would not have filed its motion last Monday.