As previously stated here, a hearing will be held on Monday, September 13, 2010 at 9:30 a.m. on the issue of whether former Mongols Motorcycle Club President Ruben “Doc” Cavazos owns the name and patch of the Mongols Motorcycle Club and therefore may be compelled to forfeit it to the United States as part of his plea and cooperation agreement.
The Mongols Motorcycle Club and the corporate identity of the club, which is named Mongols Nation Motorcycle Club, Incorporated, have argued that the name and patch are collective membership marks that no one individual may own. Therefore, the marks are not Cavazos’ to forfeit.
Rivera V. Carter
The issue of whether the marks are forfeitable trademarks used in the alleged commerce of the club or are collective membership marks and therefore protected speech appeared to be settled fourteen months ago.
In July 2009, in the civil 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, the late Honorable Florence-Marie Cooper ruled:
“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.”
Judge Cooper also wrote: “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.”
The Hearing Monday
The government was disappointed with Judge Cooper’s opinion and labeled it “premature adjudication.” When she died, the government decided to try its luck with a new judge.
The hearing will be in the courtroom of the Honorable Otis D. Wright II, Courtroom 11 in the Spring Street Courthouse, 312 North Spring Street, Los Angeles at 9:30 AM.
The Mongols will be represented by George Steele. The government will be represented by Christopher Brunwin, Reema El-Amamy, Frank Kortum and Steve Welk.
It should be over in less than an hour. Don’t expect the judge to rule until at least a week after the hearing.