Last week the Australian state of Queensland banned 26 motorcycle clubs. This morning the Department of Justice, and a federal district judge named Otis D. Wright II, moved closer to banning an American motorcycle club. The Mongols Motorcycle Club now faces the possibility of being the first motorcycle club to be banned in two countries. If the Mongols are banned in the United States, most other American motorcycle clubs may quickly be banned as well.
The American Mongols ban seems preposterous at first glance. It is a direct descendant of an ATF undercover investigation of the Mongols that began in 2005 and was codenamed Operation Black Rain. That investigation led to the indictment of 79 members and associates of the club for racketeering in 2008. One of those defendants died in custody. Another pled guilty to a minor marijuana charge. Seventy-seven defendants were eventually coerced by the rigged practice of federal justice into pleading guilty to racketeering.
Banning The Patch
The prosecution, which was led by two Assistant United States Attorneys named Christopher Brunwin and Steven Welk proposed to ban the Mongols Motorcycle Club by outlawing the display of club insignia. A press release issued exactly five years ago today, on October 21, 2008 claimed:
“’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,’ said United States Attorney Thomas P. O’Brien. ‘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.’”
Cops were allured by the idea of gaining a license to rip clothes from the backs of people they did not like. The same idea was proposed in a racketeering case against the Pagans Motorcycle Club a year later. Unfortunately for the anti-biker police, there are multiple case law citations that describe motorcycle club insignia as a constitutionally protected form of personal expression. In the 2008 Mongols case, named US versus Cavazos and others after lead defendant and former Mongols president Ruben “Doc” Cavazos, Assistant U.S. Attorney Welk never stopped trying to seize the Mongols name and logo – which portrays a Mongol warrior in bell bottom jeans riding a rigid framed motorcycle while simultaneously smoking a joint and brandishing a scimitar.
Welk lost every attempt. The late district court judge Florence Marie Cooper, who issued the original order freezing ownership of the Mongols insignia, was particularly contemptuous of Welk’s grand plan for banning motorcycle clubs. Two other federal judges agreed with Cooper that the Mongols patch was a form of free speech. One of those judges was Wright. He was not happy to be so constrained by law. And it was Wright who suggested to Welk in open court how the ban might be made to work. Wright’s idea was to indict the whole motorcycle club as a “criminal enterprise,” establish that the Mongols owned the name and patch and then compel the club to forfeit those.
Never Give Up
That’s what Welk did last February 13. By recapitulating the allegations made in the 2008 Cavazos indictment, Welk convinced a federal grand jury to indict “Mongol Nation, an unincorporated association.”
“At all relevant times,” the indictment begins, “the Mongols Outlaw Motorcycle Gang (the Mongols Gang), was an organization engaged in, among other things, murder, conspiracy to commit murder, attempted murder, conspiracy to traffic in narcotics, narcotics-trafficking, robbery, extortion, money laundering, and witness intimidation. At all relevant times, the Mongols Gang operated in the Central District of California and elsewhere. The Mongols Gang, including its leadership, full patched members, prospective and probationary members, and associates (often referred to as ‘hang arounds’), constituted an Enterprise, as Defined” under the federal racketeering statute as interpreted by an 1981 Supreme Court decision called United States versus Turkette.
The Turkette decision twisted the legal meaning of the phrase “criminal enterprise.” The original intent of the racketeering statute, commonly called RICO, was to prevent the so-called Mafia, corrupt labor unions, and similar groups from “going legit.” When RICO was signed into law by Richard Nixon, a “criminal enterprise” was a legitimate business like a bar or bowling alley that had been bought and was operated using illegally gotten gains. Turkette changed the meaning of “criminal enterprise” so that “enterprise” no longer meant a corrupted business but rather the “conspirators” who corrupted the enterprise. The current Mongol Nation prosecution takes the meaning a step farther. This federal prosecution simply assumes that anyone who calls himself a Mongol today was part of a limited and arguable criminal conspiracy that unarguably ceased to exist five years ago.
The 44-page Mongol Nation indictment accuses every Mongol of being a criminal because that’s what Mongol means. In one passage, Welk writes that the vetting process candidates for membership undergo is “to establish the potential member’s willingness to commit crimes on behalf of the Mongols gang.”
Essentially, the United States has indicted a turn of phrase: “Mongol Nation.” The government has actually handed the papers over to the club’s current president, David Santillan. Santillan was in court today but he is not indicted. No current or former member of the club is indicted. Instead what has been indicted is whatever comes to mind when one hears the word “Mongols.” The entire point of the case is to continue to try to seize the Mongols name and patch.
The club replied to this naked attempt to steal their name by filing a lawsuit in June titled Mongols Nation Motorcycle Club, LLC versus Eric H. Holder, Attorney General of the United States.
The Holder suit argues that “The government is improperly attempting to seize the collective marks of the Club and its members because the RICO forfeiture statute is an in personam mechanism that can only be employed against individuals committing a crime under RICO and cannot be applied against the Club which bears no responsibility for the actions of members who act outside of the scope of their membership with the Club.” The suit also argued that the RICO case against a name is simply an attempt to seize the Mongols insignia and that issue has already been decided. And the suit asked that the federal courts put a stop to an ongoing, unconstitutional infringement “on the Club’s First Amendment rights.”
This morning’s hearing was to decide two motions. One motion, by the government sought to dismiss the Holder suit. The other motion, by the Mongols, sought to dismiss the Mongol Nation indictment. Judge Wright ruled against the Mongols on both motions and his animosity toward the club and its attorney Bob Bernstein was palpable.
Without even a slight nod to impartiality Wright called the Holder suit “wrong on so many levels” and a reaction to “a new indictment which you don’t like.” Wright also told Bernstein that there was “no proof” that the indictment had a “chilling effect” on free speech.
When Bernstein told the judge “the issue is the rights of the unconvicted” Mongols, Wright replied “If the club is convicted (forfeiture) will be part of their sentence.”
In one loud, long and angry outburst from the bench, Wright made it clear that he has already decided that the Mongols Motorcycle Club is guilty of racketeering. Declaring himself to be an “expert” witness as well as a judge Wright said, “I almost wanted to laugh when I saw your reference to the club’s constitution.” “The (club) bylaws are a joke.” “This is a criminal enterprise.” “This is a dangerous enterprise.”
Calling the motion to dismiss the criminal case “incredible,” a clearly furious Wright gloated, “We do now have the owner of the marks indicted” and he argued that the Mongols patch is a weapon that club members use to intimidate non-members. “Proclaiming to all, you do not (fuck) with the Mongols,” Wright sputtered. “They (whoever they are) are operating under the banner of the Mongols.”
“Forfeiture will be part of the eventual sentence,” Wright predicted a second time.
The actual, apparently superfluous, trial is now scheduled to begin in Judge Wright’s court next March 25.