United States v. Mongol Nation
| Decision Date | 06 January 2023 |
| Docket Number | 19-50176,19-50190 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee/ Cross-Appellant, v. MONGOL NATION, Unincorporated Association, Defendant-Appellant/ Cross-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted September 23, 2022 Pasadena, California
Appeal from the United States District Court for the Central District of California, D.C. No. 2:13-cr-00106- DOC-1 David O. Carter, District Judge, Presiding
George L. Steele (argued), Law Office of George L. Steele, La Canada, California; Stephen P. Stubbs, Las Vegas, Nevada; for Defendant-Appellant.
Bram M. Alden (argued), Assistant United States Attorney, Criminal Appeals Section Chief; Christopher Brunwin, Assistant United States Attorney; Tracy L. Wilkison, Acting United States Attorney; Office of the United States Attorney, Los Angeles California; for Plaintiff-Appellee.
John D. Loy, David E. Snyder, and Monica N. Price, First Amendment Coalition, San Rafael, California, for Amici Curiae First Amendment Coalition and California Attorneys for Criminal Justice.
Before: Sandra S. Ikuta, Danielle J. Forrest, and Holly A Thomas, Circuit Judges.
SUMMARY[*]
On Mongol Nation's appeal of its conviction and sentence for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), and the Government's cross-appeal from the district court's order denying forfeiture of certain collective membership marks, the panel affirmed the district court's judgment.
Mongol Nation is an unincorporated association whose members include the official, or "full-patch," members of the Mongols Gang. A jury convicted the association of substantive RICO and RICO conspiracy violations; it also found various forms of Mongol Nation property forfeitable. That property included the collective membership marks-a type of intellectual property used to designate membership in an association or other organization. The district court denied forfeiture of those marks, holding that the forfeiture would violate the First and Eighth Amendments.
In Mongol Nation's appeal, it argued for the first time that it is not an indictable "person" under RICO because the indictment alleges that the association was organized for unlawful purposes only. The panel concluded that this unpreserved argument is non-jurisdictional. Reviewing for plain error, the panel did not resolve the Government's contention that Mongol waived it. The panel wrote that regardless of the merits of Mongol Nation's argument, it mischaracterizes the allegations in the indictment. Because the indictment expressly contemplated that the association may exist for other purposes-perhaps including lawful ones-the indictment is not facially inconsistent with Mongol Nation's interpretation of the definition of "person" in the RICO statute, even if that interpretation is correct. As such, Mongol Nation cannot establish that the district court plainly erred by allowing it to be prosecuted under RICO.
On the Government's cross-appeal of the order denying its second preliminary order of forfeiture, the panel did not need to decide whether forfeiture of the membership marks would violate the First and Eighth Amendments, as the district court held. Nor did the panel reach the question whether the marks may be forfeitable without the transfer of any goodwill associated with the marks, or any other trademark issues. The panel held that the forfeiture was improper for a different reason-the Government effectively sought an order seizing and extinguishing the Mongols' right to exclusive use of its marks without the Government itself ever seizing title to the marks. Because RICO provides no mechanism for forfeiture without a transfer of title to the Government, the panel held that denial of the preliminary order of forfeiture was warranted on these grounds.
This case concerns the Government's ability to prosecute an unincorporated association for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq., and to subsequently seek forfeiture of that association's intellectual property.
Defendant Mongol Nation is an unincorporated association whose members include the official, or "fullpatch," members of the Mongols Gang. The Government has been prosecuting the Mongols Gang since at least 2008, leading to the convictions of more than 70 individual members under RICO and various other criminal statutes. Following those convictions, the Government indicted Mongol Nation (the unincorporated association) on charges of substantive RICO and RICO conspiracy violations. A jury convicted the association on both charges. It also found various forms of Mongol Nation property forfeitable. That property included certain collective membership marks-a type of intellectual property used to designate membership in an association or other organization. The district court denied forfeiture of those marks, holding that under the circumstances of this case forfeiture would violate the First and Eighth Amendments.
Mongol Nation appealed its conviction and sentence, and the Government cross-appealed the order denying forfeiture of the marks. The parties' cross-appeals present two issues. First, did the district court lack jurisdiction because Mongol Nation does not qualify as a "person" as defined by RICO; and second, did the district court err in denying forfeiture of the Mongol Nation marks?
We affirm. There was no defect in the district court's jurisdiction stemming from RICO's definition of "person," and we agree with the district court that denial of forfeiture was appropriate under these circumstances.
Defendant Mongol Nation is "an unincorporated association comprised of 'official' or 'full-patch' members of the Mongols Gang," a violent, drug trafficking organization. United States v. Mongol Nation, 693 Fed.Appx. 637, 638 (9th Cir. 2017).[1]
The current proceedings against Mongol Nation are the latest step in a series of related prosecutions, including the prior prosecutions and guilty pleas of dozens of individual members of the Mongols Gang.[2] Because those prior prosecutions also involved attempts by the Government to effect forfeiture of the collective membership marks at issue here, we briefly recount the history of those earlier proceedings.
In its earlier prosecution of individual Mongols members-including that of the former leader of the Mongols, lead defendant Ruben Cavazos, Sr.-the Government sought forfeiture of two registered collective membership marks owned by Mongol Nation.[3] Cavazos, 2011 WL 13143670, at *1; id., ECF No. 1 (Indictment); Rivera, 2009 WL 8753486, at *1 &n.1. Pursuant to an application by the Government, the district court enjoined the Cavazos defendants from taking "any action that would affect the availability, marketability or value of the MONGOLS trademark" and ordered defendants "to surrender for seizure all . . . [items] bearing the [mark]." Rivera, 2009 WL 8753486, at *1.
In response to that order, Ramon Rivera-a member of Mongol Nation who was not charged in Cavazos-filed a civil action seeking an injunction to prevent the Government from seizing property based solely on the fact that it bore the relevant marks. Id., ECF. No. 1 (Complaint). The district court granted a preliminary injunction. It found that Mongol Nation (the unincorporated association) and Mongols Nation Motorcycle Club, Inc. were the exclusive owners of the marks, rather than Cavazos or any other individual member of the organizations, and that the marks were therefore not forfeitable under RICO in the context of the Cavazos prosecutions. Rivera, 2009 WL 8753486, at *7.[4] The district court ultimately granted summary judgment to Rivera. Id., ECF No. 90 (Summary Judgment Order).
Meanwhile, criminal proceedings continued in Cavazos. Following Cavazos' guilty plea, the Government continued to seek forfeiture of the marks. See Cavazos, 2009 WL 10680370, at *1-3. On June 15, 2010, the district court entered a preliminary order of forfeiture (POF) concerning the marks, finding that they "b[ore] some nexus to the criminal enterprise in which . . . defendants were involved." Id. at *1, 3. In response, Mongols Nation Motorcycle Club, Inc. filed a petition to vacate or amend the order under 18 U.S.C. Section 1963(1), asserting a property interest in the marks. Id. at *1.
The district court granted Mongols Nation Motorcycle Club, Inc.'s petition and vacated the POF. It concluded that the marks were not forfeitable because: (1) RICO authorizes forfeiture only of property belonging to a defendant, and (2) the "club," rather than any indicted defendant, maintained exclusive ownership of the marks. See id. at *3-4.
Following those earlier prosecutions, Mongol Nation, the defendant in this case, was indicted for substantive RICO and RICO conspiracy violations.
Mongol Nation successfully moved the district court to dismiss the indictment "on the ground that there is no meaningful distinction between the association Mongol Nation and the enterprise of the Mongols Gang." Mongol Nation, 693 Fed.Appx. at 637 (internal quotation marks omitted). We reversed, holding that "Mongol Nation was alleged to be part of a larger whole, the Mongols Gang, which is comprised of additional individuals who together form the alleged enterprise." Id. at 638. We declined to address Mongol Nation's challenges to the Government's efforts to effect forfeiture of the Mongols' membership marks as "premature" and "not ripe for review." Id.
On remand, the Government filed a...
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