Los Angeles, CA
(November
21, 2018) BTN —
For many years, federal
law enforcement authorities have been trying to take down the Mongols, a motorcycle club they consider one of the most dangerous criminal enterprises in the
country.
They have infiltrated it with undercover agents. They have
hammered members with charges ranging from drug dealing to money laundering to
murder. They have conducted mass arrests that resulted in dozens of guilty
pleas, including one by a past president.
But after a decade of trying, they have failed to deliver
what they view as the coup de grâce: seizing control of the Mongols’
trademarked logo, a drawing of a brawny Genghis Khan-like figure sporting a
queue and sunglasses, riding a chopper while brandishing a sword.
Federal prosecutors want to seize the rights to the logo of
the Mongols Motorcycle Club
Now, in a racketeering trial underway in Orange County,
Calif., federal prosecutors believe they have their best chance yet to take the
Mongols’ intellectual property, using a novel approach to asset forfeiture law,
which allows the seizure of goods used in the commission of crimes.
Prosecutors argue that taking the logo will deprive the
group of its “unifying symbol” — the banner under which prosecutors say the
group marauds.
If federal prosecutors have their way, one of them boasted
at an earlier point in the court battle, the police could stop any Mongol and
“literally take the jacket right off his back.”
But legal experts question the prosecutors’ grasp of
intellectual property law. “Trademark rights are not tangible personal property
like a jacket. They are intangible rights,” said Evan Gourvitz, an intellectual
property lawyer with the law firm Ropes & Gray in New York. “But
prosecutors are treating a trademark like a jacket.”
The Mongols are equally mystified. The logo — also called a
patch — is emblazoned on the vests, T-shirts and motorcycles of hundreds of
members. “Lots of brothers have tattoos of the marks on their necks
and heads and everywhere,” David Santillan, the national president of the club,
said. “How do you regulate that?”
For bikers, the patch is key to belonging and the optics of
appearing tough, and members can spend months or even years proving themselves
before they earn the right to wear it.
“The patch is like the American flag to these guys and
speaks to the identity of the club, the individual and the culture,” said
William Dulaney, a retired associate professor who is an expert on motorcycle
groups. “Some clubs have the rule that if the colors even touch the ground,
they have to be destroyed.”
Mongols MC trial in California
The Mongols’ marks, like those of other biker groups, are registered
with the United States Patent and Trademark Office. Clubs have aggressively
protected their patches from unauthorized use.
The Hells Angels have gone after large corporations
including Toys “R” Us, the Alexander McQueen fashion line, Amazon, Saks, and
Walt Disney, accusing them of infringement on its death’s head logo — a skull
in a winged helmet — and other club symbols. They have usually been successful, reaching settlements that
require defendants to cease using the trademarks and to recall and destroy
merchandise, among other concessions.
The Mongols have had their share of run-ins with the law.
The group was founded in Montebello, Calif., in 1969 and has about 1,000
members in the United States, most of whom are Hispanic. About half of the
club’s membership is in California, though Mr. Santillan said 11 new chapters
were recently established in Texas.
In 2012 Christopher Ablett, a suspected member of the
Modesto, Calif., chapter, was sentenced to life in prison for the 2008 murder
of the president of the San Francisco chapter of the Hells Angels, Mark
Guardado. In 2014 David Martinez, a Mongols member in San Gabriel, Calif., was
charged with murder in the shooting death of a Pomona police officer.
Five months ago, 21 members and associates of the Mongols
chapter in Clarksville, Tenn., were charged with a host of crimes including
racketeering conspiracy, murder, kidnapping and robbery. The Mongols say that they are not a criminal operation and
that such crimes were largely the work of rogue members who are no longer in
the organization. They further contend that some violent acts were committed in
self-defense or in defense of others. Mongols, they say, are simply part of a
brotherhood who are exercising their constitutional rights by wearing the
patch.
“This is a case of guilt by association, an attempt to put
the liability on all members,” said Joseph A. Yanny, the Mongols’ lead lawyer.
“This is one of the most absurd cases I have seen the government pursue.”
But prosecutors argue that the patch is the flag under which
Mongols carry out unlawful acts and intimidate the public.
“The government will show that the marks served as unifying
symbols of an enterprise dedicated to intimidating and terrorizing everyone who
is not a member,” they wrote in a court filing, “and assaulting and killing
those who have sworn their loyalty to other outlaw motorcycle gangs.” A spokesman for the United States attorney’s office for the
Central District of California said he could not comment on the case.
The quest to gain control of the Mongols’ colors began in
2008, when the tactic was suggested by members of the prosecution team at the
United States attorney’s office, said Thomas P. O’Brien, who led the office at
the time.
“We were looking for a way to have real impact and we knew this was
going to be a test case,” he said.
David Santillan, Mongols’ National President CreditJenna Schoenefeld for The New York Times
The pursuit of the patch was part of a criminal indictment
against 79 Mongols that ultimately resulted in 77 guilty pleas. Over the years,
the trademark part of the case has been punctuated by conflicting
interpretations of intellectual property law, judges overruling their own
orders and confusion over who even owns the rights to the logo.
“Justice is often a long and bumpy road and this case has
been particularly long and bumpy,” Mr. O’Brien acknowledged. During an early stretch of the case, Judge Florence-Marie
Cooper of Federal District Court in Los Angeles granted a sweeping order that
authorized the seizure of “products, clothing, vehicles, motorcycles, books,
posters, merchandise, stationery, or other materials bearing the Mongols
trademark” from members, their relatives and any associates.
In response, some members defiantly flaunted the marks while
others wore alternative Mongols logos. After further litigation, Judge Cooper
would then rule that the Mongols’ marks were not subject to confiscation. In
2009, Ramon Rivera, a Mongols member who had not been charged with a crime,
filed a lawsuit with the help of the American Civil Liberties Union.
Mr. Rivera argued that his First Amendment and due process
rights had been violated by the order, and asked that law enforcement
authorities be blocked from confiscating his property. He ultimately prevailed
and was awarded $252,466 in lawyers’ fees. In 2010, another federal judge, Otis Wright, preliminarily
forfeited the logo to the government after the lead defendant and former club
president, Ruben Cavazos, reached a plea deal with prosecutors.
But the Mongols argued that the club, not Mr. Cavazos, owned
the rights to the images. Judge Wright sided with the Mongols, “regrettably”
concluding that the marks were not forfeitable since they belonged to the
organization.
In a somewhat similar case in Michigan, prosecutors withdrew
their bid for the Devils Diciples trademark after six members were convicted at
trial for firearms offenses, drug trafficking, illegal gambling and other
crimes. The individual who owned the trademark, prosecutors had discovered, was
not among the defendants.
In a 2016 letter to one of the prosecutors, Fritz Clapp, a
lawyer for the Diciples, said that if the government gained ownership of the
trademark, it would face a quandary because owners must periodically
demonstrate that the mark is still in active use for the purpose registered.
“Unless the government were to use the collective membership
mark to operate a motorcycle club, then it could not satisfy the requirement,”
Mr. Clapp wrote. “Trademarks, unlike copyrights and patents, have no enduring
value apart from their use.”
But in Los Angeles, prosecutors did not give up. In 2013,
they came back with a new indictment, this time against Mongol Nation, for many
of the same racketeering offenses as were in the 2008 indictments, plus some
newer ones. Again, they asked for the forfeiture of the trademarks. The trial
is expected to continue for several more weeks.
The Mongols are watching closely, saying they know theirs is
a test case. “They take our patch,” Mr. Santillan, the president, said.
“And then they take all the clubs’ patches.”
By Serge F. Kovaleski
