The Mongols Nation case is on its way to the Ninth Circuit Court of Appeals. In the indictment on which the case rests, the government argues that the entire Mongols Motorcycle Club is a racketeering enterprise. The point of the accusation is to create a pretext that will allow the Department of Justice to seize the Mongols name and patch.
Club lawyer Joe Yanny filed a Writ of Mandamus with the appeals court last Friday. A Writ of Mandamus is a request for intervention by a superior court in the business of a lower court in the interests of justice. The Mongols are asking that Judge Otis D. Wright, who appears to be the most incompetent judge in the federal Central District of California, be recused from judging the Mongols.
It is the second time the motorcycle club has tried to get Wright booted off the case. In February the question of Wright’s impartiality was referred to yet another piece of work, Judge Manuel L. Real. Real, who is famous for his reprehensible courtroom manner and his unique ethical standards ruled “A reasonable person with knowledge of all the facts would not conclude that Judge Wright’s impartiality might reasonably be questioned.” It was an indefensibly stupid decision and Yanny wants the Ninth Circuit to reverse it.
The 38 page writ and more than one hundred pages of attached exhibits also suggests that the office of the United States Attorney for Los Angeles steered this case to these two clown judges in order to frustrate justice.
Yanny characterizes the Mongol Nation case as a “wasteful and repetitive duplication of legal proceedings (which) will irreparably erode the public’s confidence in the judicial system, will involve unnecessary expenditure of a criminal defendant’s resources, and will be wasteful of assets of U.S. taxpayers.”
The Infinite Prosecution
Two other district judges, Florence-Marie Cooper and David O. Carter have already ruled that the Department of Justice cannot seize the Mongols name and insignia. The current case was actually suggested to the prosecuting attorneys by Judge Wright as a way to punish the Mongols. Yanny writes, “the government’s entire theory of the instant case was Judge Wright’s brainchild.”
What the government proposes to do in U.S. v. Mongol Nation is expel all current members of the club because about 80 members were coerced into pleading guilty to racketeering during a case called U.S. v. Cavazos et al. As part of his plea deal, former club president Ruben “Doc” Cavazos both claimed ownership of the Mongols name and insignia and agreed to forfeit those to the government. Legally, Cavazos never owned the Mongols trademarks. By lying to the late Judge Cooper, prosecutors obtained an order from her that prevented the transfer or sale of those marks. Cooper later explained that the intent of her order was simply to freeze the assets of a racketeering defendant. But prosecutors interpreted Cooper’s order to authorize the seizure of Mongols items like bandannas, calendars and tee shirts from innocent people.
It may say something about even the best federal judges that Cooper remained ignorant of the government’s blatantly illegal actions for nine months. And when she realized how her order had been misconstrued she was furious.
Cooper also presided over a related civil case filed by a San Diego Mongol named Ramon Rivera. Rivera, who was not indicted, objected to being punished because some of his club brothers had been. Rivera’s suit complained: “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.”
When she reviewed the Rivera suit, Cooper learned for the first time that the Mongols’ logo was a special kind of trademark called a “collective membership mark.” She wrote, “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 to use of the mark to identify members of the club, have acquired and maintained exclusive ownership in the collective membership mark at issue…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.”
What Cooper Ruled
In July 2009, Cooper wrote: “At the June 22 hearing 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.”
Welk And Brunwin
After Judge Cooper died and the resultant celebration at the ATF’s Los Angeles headquarters finally died down, the Cavazos case was split between Judges Wright and Carter. Carter inherited the Rivera case. He ruled in Rivera that the government’s stance on the Mongols marks was “contrary to established First Amendment and trademark law” and not authorized by statute.
But prosecutors Steven Welk and Christopher Brunwin simply looked for another judge, which was how Wright became involved in the fight over the Mongols name and logo. The Mongols Motorcycle Club, which was never indicted in the Cavazos case, was forced to litigate the same forfeiture issues in an ancillary proceeding before Judge Wright. Wright ruled in the club’s favor but was openly disappointed that he had to follow the law. “Stated as succinctly as possible,” he wrote, “the court regrettably must conclude that it must grant the petition to Vacate or Amend the Preliminary Order of Forfeiture….”
Thirteen months ago, Welk and Brunwin indicted the entire Mongols Motorcycle Club for the same charges filed in the Cavazos case with the goal of pissing on the Constitution and seizing the Mongols’ collective marks. The government also filed a Notice To Court of Related Criminal Case which listed Wright as the sole judge in Cavazos and so the Mongols Nation case was assigned to him. The Notice was a cynical example of the games prosecutors play.
Wright Leads The Lynching
None of this litigation is cheap. The government has unlimited funds but the Mongols must hunt for the money to defend themselves. Mongols Nation epitomizes prosecution as a form on unconstitutional punishment.
The Mongols tried to stop this corruption of justice. The club filed a civil suit to dismiss the current racketeering indictment against the club but Wright dismissed that civil suit last October. In that motion hearing, Wright described Mongols club rules prohibiting illegal conduct among members as “laughable.”
“Those bylaws are a joke, and you know it,” Wright told the Mongols lawyer. “I am surprised you even mentioned it. This is a criminal enterprise as evidenced by the admissions of same by no fewer than 40 people who appeared before me. I can’t speak to the other 40 who appeared before Judge Carter. This is a dangerous enterprise.”
Wright went on to scold the attorney, “…you are saying that it is no different than them having perhaps having been Lutheran and they are of doing all these criminal things and it is just coincidental that some of them were Lutheran; right? It is not the same thing, is it? They are operating under the banner of the Mongols. It is that name, that reputation, that intimidation factor which enables them to do what they do, isn’t it?”
The writ Yanny filed last week argues that “If Judge Wright is not disqualified, petitioner will suffer irreparable damage that cannot be corrected on appeal.”
If the Ninth Circuit doesn’t remove Wright from this case it will send a clear message that there is no longer any justice in America.