Louis Keene and Serge F. Kovaleski

In a 51-page ruling, U.S. District Judge David O. Carter said the government’s strategy of trying to devastate the Mongols motorcycle club by confiscating its treasured Genghis Khan-style logo would violate the group’s First Amendment right to free speech and the excessive fines clause of the Eighth Amendment.

The decision upended years of efforts by prosecutors to weaken the Mongols, which a federal jury in January deemed a criminal enterprise after finding the group guilty of racketeering and racketeering conspiracy for the crimes of murder, attempted murder and drug dealing. In the second phase of that wide-ranging, eight-week trial, the jury found that the Mongols must give up their rights to the emblem, which is emblazoned on the vests, T-shirts and motorcycles of hundreds of members.

But Carter declined to order the Mongols to forfeit the logo until he had a chance to review their arguments and consider their free speech rights.

“The Mongol Nation’s and its members’ right to express their identity through the noncommercial display of symbols constitutes speech subject to First Amendment protections,” Carter wrote in the ruling released Thursday. He added that the First Amendment bars the government from using forfeiture laws in racketeering cases “to chill this expression.”

Carter further wrote that since the jury determined that the Mongols logo was forfeitable only on the racketeering conspiracy count, but not racketeering itself, taking away the insignia was an inordinate punishment.

What’s more, Carter wrote, “There is no evidence that forfeiture of collective membership marks will lead to a less violent or capable organization.”

The Mongols, who feared that losing the rights to their logo — a brawny Genghis Khan-like man sporting a queue and sunglasses and riding a chopper while brandishing a sword — would have severe consequences, hailed the ruling as not just a victory for the group, but for other biker clubs that law enforcement authorities have tried to take down.

“The Mongols MC is ecstatic that they could successfully defend the First Amendment for themselves and all motorcycle clubs,” the club’s general counsel, Stephen Stubbs, said. “Today, Judge Carter stood strong against the United States government’s attempt to ban symbolic speech in an epic win for all Americans.”

Carter’s ruling was a severe setback for California prosecutors who spent more than a decade going after the Mongols patch.

A spokesman for the U.S. attorney’s office for the Central District of California, Thom Mrozek, said in a statement that prosecutors were disappointed by the decision and that they believed Carter was required by law to issue the forfeiture order that the government had requested. He said the office was considering an appeal.

“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’ decadeslong pattern of murder, assault and drug trafficking,” Mrozek said.

The roots of the government’s case date to 2005 when four undercover agents for the Bureau of Alcohol, Tobacco, Firearms and Explosives infiltrated the Mongols.

The result was a jarring blow to the club. In October 2008, a grand jury returned an 86-count federal racketeering indictment against 79 Mongols, accused of crimes ranging from murder to drug trafficking to money laundering. Except for one defendant who died in custody and another who was deemed incompetent, all others eventually pleaded guilty.

Donald Charles Davis, who writes the biker blog “The Aging Rebel,” said he felt Carter’s ruling was “inevitable.”

“The government’s ambition was blatantly unconstitutional,” Davis said. “The government sought to turn symbols like the Mongols insignia, the club’s name and sentiments associated with the club like ‘Support The Mongols,’ into contraband.”

Carter’s ruling was drawn from a flood of legal opinions that were submitted by academics, law firms and think tanks. He upheld the Mongols’ convictions on racketeering and racketeering conspiracy, and tentatively granted the forfeiture of the various weapons and property that had been seized.

Despite members of the club wearing the symbols “while committing violent crimes” or being “rewarded with other patches for the commission of crimes” that did not justify the forfeiture of the logo, Carter wrote.

David Santillan, national president of the Mongols, pumped his fist into the air as the decision was read before a courtroom audience that included several Mongols members.

“He upheld our constitutional rights, not only as the Mongols motorcycle club, but as citizens,” Santillan said. “A big weight has been lifted off the club’s shoulders.”

This article originally appeared in <a href="https://www.nytimes.com/2019/02/28/us/mongol-motorcycle-club-ruling.html" id="efbfb457-6329-364a-a8c8-bb0dd6fad31a">The New York Times</a>.

SANTA ANA, Calif. — Nearly two months after a federal jury decided that a notorious motorcycle club must forfeit the rights to its trademarked emblem, a judge on Thursday nullified the verdict, finding that seizure of the intellectual property was unconstitutional.

Mongols Biker Club Can Keep Its Logo, Judge Rules

But in a setback to the future of one of the country’s most notorious biker groups, a federal jury in California on Friday found that the Mongols motorcycle club must forfeit its rights to the trademarked Genghis Khan-style emblem that identifies the organization.

The jury’s verdict — which concluded the second phase of a wide-ranging eight-week racketeering trial in which jurors also branded the Mongols a criminal enterprise — was not the final word. The group’s lawyers have filed a motion to dismiss the case and the presiding judge, who in the past has ruled in favor of the Mongols, said he would not immediately order the club to forfeit the logo until he has a chance to review the club’s arguments and consider their free speech rights.

Going after their trademark, which prosecutors have sought for a decade, was an innovative approach intended to break the Mongols by striking at its visual identity, a patch that has been linked to the organization’s culture of violence and intimidation and appears on the vests, T-shirts, caps, mouse pads and motorcycles of hundreds of its members, many of whom also have tattoos of the image.

The Santa Ana, California, jury last month convicted the biker club of racketeering, and racketeering conspiracy for the crimes of murder, attempted murder and drug dealing committed by individual members over the past dozen years.

In addition to the logos, the jury found Friday that the government could keep various items bearing the mark — including vests, clothing and documents such as the Mongols’ constitution — as well as a number of guns, ammunition and armored vests it had seized in earlier raids against the group. But the jury denied forfeiture rights for belt buckles, jewelry, lighters, bandannas, stickers and motorcycle parts — apparently unable to find the “required nexus” between the items and the group’s criminal activity.

Friday’s verdict confounded Mongols members and their lawyers. Stephen Stubbs, the club’s general counsel, described the outcome as “very strange” because the jury did not find the logo forfeitable on the count of racketeering, but did so on the racketeering conspiracy count.

“How can we make sense out of that?” Stubbs said, adding that it appeared to be a compromise verdict, one agreed upon so the jury could go home after long days of deliberations. “So, we continue to fight so that Americans can’t be banned by the government from wearing symbols.”

Robert Draskovich, a Las Vegas lawyer who has represented the Hells Angels and the Bandidos on criminal matters, said that while the verdicts were a potential “death blow” for the Mongols, the outcome was also foreboding for other motorcycle clubs that have been the focus of law enforcement ire over the years.

“I would say that other clubs are now liable and in danger of being targeted, trampled on and dismantled,” Draskovich said.

Because the case was focused on the organization itself, no members or associates faced any time behind bars.

But in many ways, some lawyers said, stripping the club of its identifying mark was worse.

“It is the holy of holies,” said Fritz Clapp, a lawyer who has done intellectual property work for the Hells Angels and the Devils Diciples motorcycle clubs.

Indeed, “everyone in the bike gang business agrees that you never want to lose your colors because it shows you can’t defend your turf,” Terry Katz, a board member of the International Outlaw Motorcycle Gang Investigators Association, said in an interview. “And without that set of colors, you are not rock stars.”

The emblem at issue is a black-and-white rendering of the word “MONGOLS” over a drawing of a cartoonish Genghis Khan-like figure sporting a queue and brandishing a sword while riding a chopper motorcycle.

Other lawyers opined that the forfeiture verdict would not hold up on constitutional grounds.

“It is clearly an overreach to sweep up all innocent people by virtue of being part of a motorcycle club,” said Richard Gaxiola, a Phoenix lawyer who has represented the Hells Angels for 15 years.

U.S. District Judge David O. Carter, who has scheduled a hearing for Feb. 28, acknowledged that the verdicts would likely face constitutional challenges. Talking to lawyers in the case last month, without the jury in the courtroom, Carter said that since the “forfeiture provision is quite literally without limitation, it may exceed constitutional bounds in a particular case.”

The government has long sought the group’s trademarked patch. A seizure order a decade ago was unable to withstand a constitutional challenge after a Mongols member, Ramon Rivera, who was not indicted on any criminal charges, filed a complaint with the help of the American Civil Liberties Union and successfully argued that the confiscation of Mongols items violated his First Amendment and due process rights.

Experts in intellectual property law said that efforts to gain control of the trademark rights to the logo were not enough to claim ownership of them.

“You are only a trademark owner if you are using it in commerce or as a collective membership mark, like the Mongols,” said Viva Moffat, a professor at the University of Denver’s Sturm College of Law who specializes in intellectual property law.

During the trial, prosecutors for the U.S. attorney’s office for the Central District of California argued that the Mongols club was a violent criminal enterprise to its core and that its leaders were aware of the illicit activities of its members and associates.

Prosecutors presented the jury with a battery of crimes over the years allegedly carried out by Mongols members, ranging from drug dealing to firearms offenses to murder, including the fatal shooting of a Pomona, California, police officer in 2014.

Assistant U.S. Attorney Steven R. Welk told the jury this week that the Mongols club was a gang that had been “a beehive of pernicious criminal activity” since it was founded in Montebello, California, in 1969.

“These men, fueled by, based on the evidence which you’ve heard, by rage and methamphetamine, empowered by these symbols that they wear like armor, roaming the world like urban predators searching for people to victimize,” Welk said.

The roots of the government’s case date back to 2005, when undercover agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives set out to infiltrate the Mongols. Known as Operation Black Rain, it was a notably large undertaking for the ATF, a three-year investigation in which four agents managed to become full members.

The result was a jarring blow to the club. In October 2008, a grand jury returned an 86-count federal racketeering indictment against 79 Mongols, alleging crimes from murder to drug trafficking to money laundering. The lead defendant was Ruben (Doc) Cavazos, the club’s national president until he was voted out weeks before the charges were filed. Except for one defendant who died in custody and another who was deemed incompetent, all those charged eventually pleaded guilty.

Calling the prosecution’s case “the best book of fiction I’ve ever heard in my life,” Joseph A. Yanny used part of his closing statements last month to assail the integrity of the ATF. He argued that its agents used entrapment and lies to build their cases against the Mongols.

Yanny also stated that crimes carried out by Mongols were “spontaneous rogue acts of individuals” that were not hatched or approved by club officers. Referring to the brutal 1991 beating of Rodney King by a group of Los Angeles police officers, he told the jury “that doesn’t make the LAPD a criminal organization.”

This week, Yanny told the jury before it deliberated over the fate of the Mongols marks, “It’s the death penalty phase of this case. Have they made mistakes? We never denied that they have. Have they cleaned up their act? You bet they have.”

The case has highlighted how resolved prosecutors are to hobble motorcycle organizations like the Mongols, which rely on striking optics to convey an air of toughness and intimidation, and how determined biker groups are to protect their logos.

David Santillan, national president of the Mongols, said in an interview that the club has spent more than $1.5 million in lawyers’ fees over the last 10 years to fight the government’s charges. “You can’t put a price on our patch,” Santillan said. “It’s priceless.”

This article originally appeared in <a href="https://www.nytimes.com/2019/01/11/us/mongols-biker-gang-logo.html" id="c099ab89-3aca-362b-a1f3-5a7e332a8297">The New York Times</a>.

Jury Orders Mongols Biker Club to Forfeit Its Logo, the 'Holy of Holies'

SANTA ANA, Calif. — For its members, a motorcycle club’s logo is both sacred and hard-earned, the banner under which its brand of rugged brotherhood and individualism exist.

<h1>SANTA ANA, Calif. — Nearly two months after a federal jury decided that a notorious motorcycle club must forfeit the rights to its trademarked emblem, a judge on Thursday nullified the verdict, finding that seizure of the intellectual property was unconstitutional.</h1>

The roots of the government’s case date to 2005 when four undercover agents for the Bureau of Alcohol, Tobacco, Firearms and Explosives managed to become full members of the Mongols.

Despite certain members of the club wearing the symbols “while committing violent crimes” or being “rewarded with other patches for the commission of crimes” that did not justify the forfeiture of the logo, Carter wrote.

This article originally appeared in <a id="337ef06b-6a9e-490b-9390-ec22151626f0" href="https://www.nytimes.com/2019/02/28/us/mongol-motorcycle-club-ruling.html">The New York Times</a>.

Mongols biker club can keep its logo, judge rules

The decision upended years of efforts by prosecutors to weaken the Mongols.

<h1>But in a setback to the future of one of the country’s most notorious biker groups, a federal jury in California on Friday found that the Mongols motorcycle club must forfeit its rights to the trademarked Genghis Khan-style emblem that identifies the organization.</h1>

The jury’s verdict — which concluded the second phase of a wide-ranging eight-week racketeering trial in which jurors also branded the Mongols a criminal enterprise — was not the final word. The group’s lawyers have filed a motion for acquittal and the presiding judge, who in the past has ruled in favor of the Mongols, said he would not immediately order the club to forfeit the logo until he has a chance to review the club’s arguments and consider their free speech rights.

Jury orders mongols biker club to forfeit its logo, the 'holy of holies'

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Louis Keene and Serge F. Kovaleski

Articles written by the author

Mongols Biker Club Can Keep Its Logo, Judge Rules

Jury Orders Mongols Biker Club to Forfeit Its Logo, the 'Holy of Holies'

Mongols biker club can keep its logo, judge rules

Jury orders mongols biker club to forfeit its logo, the 'holy of holies'