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Feds Demand Forfeiture of Mongols’ Biker Trademarks . Is the first amendment in play?

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SANTA ANA, Calif. (CN) — The Mongol Nation Motorcycle Club must be stripped of the trademarked insignia that members wear on their backs, as fitting punishment for “a parade of horrors” the biker committed for decades, a federal prosecutor told a jury Tuesday.

Mongols “roamed the world looking for people to victimize” while “empowered by these symbols they wear like armor,” Assistant U.S. Attorney Steven R. Welk argued to an Orange County jury.

The jury in December found that the Mongol Nation club had been involved in murders, attempted murders and drug sales and convicted it of racketeering and conspiracy.

Now, in what Welk described as a very unusual process, jurors must decide whether the federal government can take the club’s trademarks in its logo design, or “patch,” through criminal forfeiture, to prevent members from wearing or using the design.

“It’s the only way to stop the endless cycle of crime that organizations like this perpetuate,” Welk said.

But Joseph A. Yanny, the Mongol Nation’s defense attorney, said “there is no reason to impose the death penalty on this club” for crimes committed by individuals, many of whom are already in prison.

“They’re trying to take away the one thing by which these men identify each other,” Yanny said.

U.S. District Judge David O. Carter has said the case is one of first impression and could reach the U.S. Supreme Court, due to the tension between forfeiture and trademark issues. Further, he said, the prosecutors may appeal from a forfeiture judgment that goes against them, unlike in most criminal cases.

As he did in the first portion of the trial, Yanny described the Mongols as a club founded in the late 1960s by Vietnam war veterans, primarily Latino, who liked to ride motorcycles together.

“Have individual men made mistakes” over the years? he asked. Yes, he said.

“Have they [the club] cleaned up their act? Yes, they have.”

At issue in this second phase are the Mongol Nation’s trademarks in the design of the patch that members wear on the back of their vests. It shows a cartoon Genghis Khan-type figure brandishing a sword and riding a motorcycle under a curved banner bearing the word “Mongols.”

UPDATE- Attorney: Government taking control of Mongols motorcycle club patches would be ‘death penalty’ for the group

Welk and Yanny stipulated to the jury Tuesday that the trademarks have been in “continuous use” by the club since 1969.

The prosecution’s one witness, retired ATF agent Darrin Kozlowski, testified that the trademarked symbols also appear on mugs, T-shirts, rings, mouse pads, cigarette lighters, caps, bandannas, stickers, trash cans and motorcycle parts. He said he bought some of those items himself during the three years he spent undercover in the Mongols for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

Kozlowski said that only the club’s national leadership team, known as the Mother Chapter, can grant “full-patch” membership to a man and authorize him to wear the complete, three-part patch.

Under the Mongol Nation’s constitution, the club retains ownership of the patch, and members must return their patches if they leave, Kozlowski said.

The defense also presented just one witness, intellectual property attorney Michael A. Dinardo, who happens to be Yanny’s cousin.

Dinardo explained the differences between ordinary trademarks or service marks, which must be used in commerce, and “collective membership marks,” such as the Mongol patch. He said ownership rights to any sort of trademark arise from its being in continuous use by the mark’s owner, not from registration with the U.S. Patent and Trademark Office.

UPDATE- Attorney: Government taking control of Mongols motorcycle club patches would be ‘death penalty’ for the group

The Mongol Nation did register its marks several times. But Welk told the jury that that did not turn this into a trademark case. “This case is about a criminal gang that recruited men” to commit crimes, he said.

The issue for the jurors, he said, is whether there is a nexus, or connection, between the trademarks and the racketeering and conspiracy crimes the Mongol Nation club was convicted of. If so, the jury must find the marks can be forfeited.

They can find a connection if they believe the marks were acquired or maintained by the criminal racketeering enterprise or provided a source of influence for the enterprise, or produced proceeds used by the enterprise, Welk said.

Unlike the guilt phase of the trial, the burden of proof now is a preponderance of evidence, rather than beyond a reasonable doubt.

The prosecution also seeks forfeiture of guns, ammunition and many personal items bearing the Mongols name or insignia that were seized in an October 2008 raid on more than 100 sites belonging to members. After that raid, 77 individual Mongols eventually pleaded guilty to crimes.

Yanny argued to the jury that neither the trademarks nor any of the personal items were directly connected to any of the individual racketeering crimes for which the club was convicted.

“None of the property they want to forfeit has anything to do with any of the predicate acts” making up the racketeering conviction, he said.

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“Nobody was killed or beaten with a coffee cup,” he added later.

Yanny said that none of the guns seized in the 2008 raids were used in any of the specific crimes.

But Welk said the prosecution is not required to tie property it wants to forfeit to any particular crime or racketeering act.

The jury was to begin deliberations Wednesday.

If it does find in favor of forfeiture, Carter has suggested he will have to decide whether forfeiting the trademarks would violate Mongol members’ speech or other constitutional rights.

Source: Courtnews.com

 

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