By Louis Keene and Serge F. Kovaleski
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.
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 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.
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, Calif., 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?” Mr. 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.
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.
United States 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, Judge Carter said that since the “forfeiture provision is quite literally without limitation, it may exceed constitutional bounds in a particular case.”
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 United States 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, Calif., police officer in 2014.
Assistant United States 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, Calif., 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,” Mr. 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 A.T.F., 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 A.T.F. He argued that its agents used entrapment and lies to build their cases against the Mongols.
Mr. 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 L.A.P.D. a criminal organization.”
This week, Mr. 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, the 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,” Mr. Santillan said. “It’s priceless.”
Source New York Times