United States v. Mongol Nation

• Citation: 370 F.Supp.3d 1090
• Decision Date: 28 February 2019
• Docket Number: Case No. CR 13-0106-DOC-1
• Parties: UNITED STATES of America, Plaintiff, v. MONGOL NATION, Defendant.
• Court: U.S. District Court — Central District of California

370 F.Supp.3d 1090

UNITED STATES of America, Plaintiff,

v.MONGOL NATION, Defendant.

Case No. CR 13-0106-DOC-1

United States District Court, C.D. California, Southern Division.

Signed February 28, 2019

George S. Cardona, Christopher M. Brunwin, Steven R. Welk, Office of US Attorney, Los Angeles, CA, for Plaintiff.

Elliot Hangyul Min, Louis Charles Cardinal, Joseph A. Yanny, Law Offices of Yanny and Smith, Los Angeles, CA, Stephen P. Stubbs, Pro Hac Vice, Attorney at Law, Las Vegas, NV, for Defendant.

ORDER RE MOTION FOR ENTRY OF PRELIMINARY ORDER OF FORFEITURE; MOTION FOR NEW TRIAL; MOTION FOR ACQUITTAL [324], [340], [354]

DAVID O. CARTER, UNITED STATES DISTRICT JUDGE

Before the Court is the Government's Motion for Preliminary Order of Forfeiture Against Defendant Mongol Nation ("Mot. for POF") (Dkt. 354) and the Mongol Nation's post-trial motions. The Court heard oral arguments on February 28, 2019.

On December 13, 2018, the jury returned a verdict finding the Defendant Mongol Nation, an unincorporated association, guilty of (1) substantive RICO;¹ and (2) RICO conspiracy. See Dkt. 320. The guilty verdict triggered the forfeiture phase of trial. On January 11, 2019, the jury returned a Special Verdict finding certain property to be subject to criminal forfeiture, including the rights associated with and appurtenant to collective membership marks and specific items of personal property bearing the marks. See Dkt. 353. The jury also found forfeitable ammunition, body armor, and firearms entered into evidence. The Special Verdict capped months of trial and ripened legal challenges to the Government's requested criminal forfeiture. See Thomas v. Anchorage Equal Rights Comm'n , 220 F.3d 1134, 1138 (9th Cir. 2000).

The Mongol Nation and its members display specific words and images on leather vests, flags, bandanas, belt buckles, and other property. Some of these words and images are registered with the United States Patent and Trademark Office as a type of trademark called a "collective membership mark." For example, one of the Mongol Nation's registered collective membership marks is the "Combined Mark," consisting of the word "MONGOLS" and the drawn image of a Genghis Khan-type character with sunglasses and a ponytail, riding a motorcycle, with the letters "M.C." appearing below the motorcycle:²

The Mongol Nation and its members use the collective membership marks solely for the purpose of identifying the persons displaying the marks as members of the motorcycle club. Unlike a typical trademark (i.e. , "Pepsi" or "Dr. Pepper"), the words and images are not used to distinguish the source or origin of particular goods or services in commerce.³ They are used only to identify membership in the collective. This type of trademark allows an organization, union, club, or other type of association—be it the National Rifle Association,⁴ American Thyroid Association,⁵ Christian Deer Hunters Association,⁶ International Brotherhood of Teamsters,⁷ or Navy Seal Team⁸ —to prevent others from using the words or images in a way that violates trademark law, including by creating public confusion about the origin of goods.⁹ For example, in 2012 the Hells Angels Motorcycle Corporation filed a lawsuit against Toys "R" Us, Inc. for selling yo-yos with a design confusingly similar to the motorcycle club's "Death Head" collective membership mark.¹⁰

For more than a decade the United States has expended resources seeking forfeiture of the Mongol Nation's collective membership marks. Why? It is beyond question that the Government has a legitimate interest in attacking the economic roots of a criminal organization like the Mongol Nation.¹¹ But what does the United States accomplish by seizing control of the intellectual property rights associated with a motorcycle club's associative symbols? The Government's own prior admissions shed light on the objectives underlying more than ten years of their efforts: The collective membership marks are "potent emblem[s]" used to "generate fear among the general public," and the Government has sought orders to prevent use of "the trademark to create an atmosphere of fear through public display."¹² The Government has stated publicly that it has sought to "stop [a] gang member and literally take [a] jacket right off his back."¹³ The Government is not merely seeking forfeiture of the ship's sails. In this prosecution the United States is attempting to use RICO to change the meaning of the ship's flag.

Now that the preliminary order of forfeiture is before the Court, the Government contends that its request is limited; the Government argues at length about what the requested preliminary order of forfeiture does not authorize. See, e.g. , Reply ISO Mot. for POF¹⁴ at 25 ("the POF merely forfeits Defendant's right to limit use of the Marks—the POF in itself does not confer any right upon the government to do so"); id. at 22 ("The government has ... requested nothing more than the entry of a POF, and it is unreasonable to presume that the mere entry of that order could or would lead to seizures or a reasonable belief that seizures would occur[.]"). But the First Amendment "protects against the Government; it does not leave us at the mercy of noblesse oblige " or any promise to use power "responsibly." United States v. Stevens , 559 U.S. 460, 480, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

The Government has included language in its proposed POF stating that the order "standing alone" does not authorize seizure of property bearing the symbols and that the Government "shall not apply to any Court (other than this Court) requesting seizure or enforcement authority based upon this Order." Dkt. 354-1 at 6. This 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. The Government has not been forthright with this Court and the public regarding whether the United States can feasibly use the Mongol Nation's collective membership marks or transfer the marks to a third party for their exclusive use.¹⁵ These statements to the Court have been accompanied by public threats made by the United States Attorney regarding the Government's intention to strip vests off members' backs. Most recently, the special agent in charge of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Los Angeles Field Division, stated that the Government had successfully seized a "unity symbol."¹⁶ Because the forced transfer of symbols to the United States immediately chills the Mongol Nation's and its members' continued rights to display or otherwise use the collective membership marks without fear of legal retaliation or payment of a licensing fee at any point following forfeiture, the forced transfer of the collective membership marks to the United States violates the First Amendment.

The Government's request also violates the Eighth Amendment's Excessive Fines Clause and must be denied on this basis alone. The Mongol Nation is a convicted criminal entity, and its members have pleaded guilty to heinous acts of murder, attempted murder, drug trafficking, and other crimes. But in this case the jury found that the Government did not prove the requisite nexus between the collective membership marks and the substantive RICO offense; the jury found the collective membership marks forfeitable as to RICO conspiracy alone. The forfeiture of the rights associated with a symbol that has been in continuous use by an organization since 1969 is unjustified and grossly disproportionate to this offense. To hold otherwise sets a dangerous precedent that enables the Government to target the associative symbols of organizations it chooses to prosecute for RICO conspiracy. For example, the United States brought multiple RICO actions against James Hoffa and the International Brotherhood of Teamsters ("Teamsters"). See, e.g., United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO , 3 F.3d 634, 636 (2d Cir. 1993). The purpose of these prosecutions was to rid the union of "the hideous influence of organized crime." Id. Today the Teamsters continue to own and use the INTERNATIONAL BROTHERHOOD OF TEAMSTERS collective membership mark,¹⁷ and the group's more than one million union members display their symbol on clothing, including on vests (albeit fleece, not leather). See also Timbs v. Indiana , 586 U.S. ––––, 139 S.Ct. 682, 203 L.Ed.2d 11 (2019) (Ginsburg, J.) ("Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts' critics learned several centuries ago.").

"[T]he district court must avoid unconstitutional results by fashioning forfeiture orders that stay within constitutional bounds." United States v. Busher , 817 F.2d 1409, 1415 (9th Cir. 1987). The Court thus DENIES the request for a Preliminary Order of Forfeiture in its current form. First , the requested POF violates the Mongol Nation's and its members' First Amendment rights. Second , the requested POF violates the Eighth Amendment's Excessive Fines Clause.

However, pending the filing of an amended POF consistent with this Order, the Court conditionally GRANTS the Government's request to forfeit all body armor, firearms, and ammunition entered into evidence during trial as well as items of tangible personal property bearing the collective membership marks, including vests or "cuts," patches, clothing and documents,that are currently in the custody of the United States. This requested forfeiture raises no constitutional concerns before an ancillary proceeding is conducted to determine ownership interests in the property.

Moreover, the Court DENIES Defendant's motion for acquittal and motion for a new trial. Having reviewed the evidence presented during trial, the Court declines to overturn the jury's finding by beyond a reasonable doubt that the Mongol Nation is guilty of substantive RICO and RICO conspiracy. A...