There it is in the Patent and Trademark Office’s registry: an image of a muscly Genghis Khan-type character cruising along on a motorcycle, shirtless beneath a black vest, wearing black shades and a pony tail and clutching a sword.
Like all the millions of trademarks featuring duly registered images — Top Paw’s hammocks for pets or Swell Coffee Co.’s scoops for coffee lovers — the Mongols Motorcycle Club patch’s registration features a simple description. The mark is supposed to indicate “membership in an association dedicated to motorcycle riding appreciation.”
But if you ask federal prosecutors, the saber-wielding man on the backs of the Mongols’ leather jackets is not so innocent.
In fact, the patch is so dangerous, federal prosecutors have argued, that the public should not even be exposed to it whatsoever — and it should literally be stripped from the backs of the Mongols club members.
That’s the argument the government made as part of its decade-long campaign to dismantle the Mongols Motorcycle Club by taking away its prized motorcycle-jacket patches — in other words, their identity. In December, a jury convicted the club of numerous racketeering offenses, including murder and slinging narcotics. And the jury signed off on the feds’ seizure of the trademark to the club’s infamous symbol, which prosecutors argued would quell their incentive to commit crimes.
But on Thursday, to prosecutors’ dismay, a federal judge ruled the government couldn’t have its coveted patches.
Rather than helping to stop crime, U.S. District Judge David O. Carter ruled that the government’s quest to confiscate the patches from club members amounted to a poorly devised, illegal case of government overreach. Citing the First Amendment guarantee of freedom of association and the Eighth Amendment’s bar on excessive punishment, Carter declared the club’s symbol sacrosanct.
“Regardless of how ‘potent’ a symbol may be, or how much ‘fear’ a symbol generates, the Government cannot justify the restriction of this speech, especially given the symbols’ purely associative purpose,” wrote Carter, a judge in the Central District of California. “Though the symbol may at times function as a mouthpiece for unlawful or violent behavior, this is not sufficient to strip speech of its First Amendment protection.”
Joseph Yanny, a Los Angeles attorney who argued the case in court, called the decision “a victory for all motorcycle clubs and any collective organization. Hopefully this puts an end to the abuse by the federal government of ordinary citizens,” he said. “Over the 15-plus years that this thing has gone on, they have wasted tens of millions of dollars picking on folks trying to prove a novel theory,” he told The Washington Post.
The motorcycle club was founded in 1969 in Southern California by “people coming back from the Vietnam War who were not welcome,” Stubbs said. The group of Latino men were also allegedly not welcome in the Hells Angels, the notorious biker gang that would soon become the Mongols’ biggest rival.
The Mongols have repeatedly denied being a criminal enterprise over the years. In fact, former governor of Minnesota and former Mongols member Jesse Ventura has vouched for the club.
But in the mid-2000s, the government started building a case under the federal Racketeering Influenced and Corrupt Organizations Act, or RICO. In 2002, the Mongols were accused of engaging in an “armed confrontation” with the Hells Angels at a Harrah’s casino, leaving two Hells Angels and one Mongol dead in what was later called the River Run Riot. In 2005, the Mongols were accused of engaging in a shootout with a rival gang while collecting donations for needy children at a Toys for Tots event in Norco, Calif. In 2007, prosecutors said the Mongols took over a bar in Indianapolis while armed with guns, knives, brass knuckles and baseball bats, terrifying patrons as they attacked Sons of Silence motorcycle gang members.
The next year, the federal government indicted 79 Mongols members in its first RICO case; 77 pleaded guilty to racketeering offenses. Prosecutors viewed it as a major victory but ran into trouble when they tried to seize the Mongols patch. In 2009, a federal judge rejected their attempt, in part because none of the individual members charged in the racketeering case actually owned the trademark.
The government was undeterred. Prosecutors simply starting building an entirely new RICO case in 2013, which still included offenses from as far back as 2002. And this time, they didn’t make the same mistake. They charged the Mongol Nation as the sole defendant, the owner of the trademark.
In December, a jury in California found the Mongol Nation, now one of the world’s largest motorcycle clubs, was a racketeering enterprise, guilty of a range of crimes including beating a person to death at a tavern and stabbing a man at a Mobil gas station. Like other “enterprises” convicted under RICO, Mongol Nation became subject to having its assets forfeited to the U.S. government.
Among the loot claimed by the government were weapons, armored vests and, of course, motorcycles. All that was fine. But the Justice Department had vowed to go further and strip the club of its “unity symbol” — in fact, to take it “literally” right off the backs of the Mongols’ riders, as the U.S. attorney in the Central District of California once threatened.
The image of that man with the shades and the mustache was emblazoned on T-shirts, on patches, on bikes, on leather jackets and tattoos. It may have been a mark of unity to Mongol members and former members, like a wedding ring binding them together — the “Holy Grail” of their relationship, as another Mongol lawyer, Stephen Stubbs, told The Washington Post.
To prosecutors, however, the patch “empowered” them, as a symbol “they wear like armor.” They emphasized the image had been prominently displayed in the commission of crimes and that members could be “rewarded” with patches based on the crime they committed. In January, a jury agreed and allowed the government to claim the trademark.
But Carter disagreed. He acknowledged that the government had a “legitimate interest in attacking the economic roots of a criminal organization.”
“But what does the United States accomplish by seizing control of the intellectual property rights associated with a motorcycle club’s associative symbols?” Carter questioned.
Not very much, he argued. Instead, he said, in this case, the government’s demand was a “grossly disproportionate” punishment for the crimes set out in the RICO conspiracy case. Carter cited a recent Supreme Court opinion applying the Eighth Amendment’s prohibition of excessive fines.
“In this case, the RICO conspiracy is a serious offense,” he wrote. “Nonetheless, the collective membership marks were acquired in 1969 upon first use and have been maintained through continuous use for decades. The symbols have immense intangible, subjective value to the Mongol Nation and its members.” Moreover, “the collective membership marks are not the fruits of any illegal activity.”
A spokesman for the U.S. attorney’s office in Los Angeles said prosecutors were disappointed in the ruling and are “definitely considering” an appeal.
“As we argued in our briefs, we believe the court was required by federal law and precedent to issue the forfeiture order requested by the government,” spokesman Thom Mrozek said in an emailed statement to The Washington Post. “While affirming the jury’s guilty verdicts on racketeering charges, the court’s ruling nullifies the jury’s finding that these marks are a core component of the Mongols’ decades-long pattern of murder, assault and drug trafficking.”
Carter agreed with the Mongols’ legal argument.
Allowing the government to “bootstrap a conviction of the motorcycle club into censorship” of all the club’s law-abiding members and supporters, Carter wrote, would “set a dangerous precedent.” What groups could the federal government target with this power next? Carter questioned.
The government’s purpose in seeking the patches, he ruled, is “not enough to remedy the chilling effect the forced transfer of a symbol to the United States government has on the Mongol Nation, its members, and society at large.”
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