SANTA ANA, Calif. (CN) – A federal jury in Southern California on Friday ordered the notorious Mongols Nation Motorcycle Club to forfeit the trademarked insignia that bikers wear on their backs, culminating a decade-long prosecution of an organization that federal prosecutors have described as “a beehive of pernicious criminal activity.”
The club’s trademark patch, which members have worn since 1969, features a cartoon Genghis Khan-type figure brandishing a sword and riding a motorcycle under a curved banner bearing the word “Mongols.”
Prosecutors sought criminal forfeiture of the logo as punishment for criminal activities by the club, which was founded in the late 1960s by primarily Latino Vietnam War veterans.
The jury also found that the club must forfeit a large quantity of vests, guns and ammunition that federal agents seized years ago in raids on Mongols’ homes and other locations.
Assistant U.S. Attorney Steven Welk said his office will quickly file a motion to obtain a court order allowing the government to begin forfeiture procedures.
But before any trademark rights can be taken, U.S. District Judge David O. Carter said he first will decide whether forcing the club and even its members to stop using or wearing the patch would violate their First Amendment rights to free speech and association.
In closing arguments of the trial this week, prosecutors said that members of the Mongols were “empowered by these symbols that they wear like armor.”
In returning their criminal forfeiture verdict Friday, jurors agreed, finding a direct connection between the gang’s crimes and the trademarked logos that prosecutors said formed the core of the motorcycle club’s identity.
U.S. Attorney Nick Hanna said in statement Friday that the verdict will forever brand the club as a racketeering enterprise.
“The Mongols are a notorious criminal organization whose members regularly engage in violent acts against law enforcement officers, rival gangs and members of the public,” Hanna said, adding that forfeiture is a contemplated weapon against a criminal enterprise’s economic power and influence.
Mongol defense attorney Joseph A. Yanny repeatedly said that taking away the patch design would amount to the death penalty for the club, which he described as simply a group of man who enjoy riding motorcycles together.
He said that many members are veterans, including many Latinos who were barred were from joining the Hells Angels and other biker clubs. They initially came together as soldiers “in the jungles of Vietnam,” Yanny said.
Bill McMullan, an agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, which infiltrated Mongol Nation chapters for years as part of “Operation Black Rain,” praised the jury’s verdict.
“We are proud our work resulted in their unity symbol, the Mongol patch, being forfeited,’ McMullan said in a statement.
But the motorcycle club’s general counsel, who participated in the trial, said the jury’s forfeiture verdict marks a sad day for the country.
“For the first time ever in U.S. history, the government is banning symbols,” Stephen Stubbs told reporters. “The Mongols’ patch is a symbol, and the government has now tried to seize and ban the symbol so that Americans cannot wear it.”
On Friday, Welk insisted several times to the judge and to reporters that the initial forfeiture order he will be seeking would not give the federal government any authority to seize anything, especially not Mongol members’ vests or other personal property.
Carter, too, has questioned whether prosecutors could prevent individuals from wearing or displaying the Mongol insignia, even if the government owns the trademarks.
In a 2011 civil case by a Mongol member attacking prosecutors’ earlier forfeiture attempts, Carter held that “the government’s seizure of items bearing the Mongols mark and/or Image mark also would violate [the members’] rights under the First Amendment to the United States Constitution.”
In the current criminal case, the 9th U.S. Circuit Court of Appeals ruled in 2017 that the constitutional issues were not ripe for consideration at that time. Carter said Friday those issues are ripe now because of the jury’s verdict.
If the government is allowed to take the Mongols’ rights in the trademarks through forfeiture, one puzzling issue is what it will do with those rights. Trademark experts, including a defense witness, have said that trademark rights can only be claimed or maintained by being used.
In fact, the prosecution and the defense stipulated to the jury on Tuesday that the Mongols had used the “Mongols” and Genghis Khan cartoon mark continuously since 1969.
If a trademark isn’t actively used by the owner, typically in commerce, it can be deemed abandoned, which leaves it available for anyone to use. During a hearing last week, Carter sharply questioned prosecutors about whether the federal government would put the Mongols trademarks to use.
Four male ATF agents worked undercover and successfully infiltrated the Mongols to become full-patch members, the prosecutors’ statement said, adding that four female ATF agents also went undercover to pose as their girlfriends.
The agents had to maintain biker personas and undergo rigorous scrutiny by the club to be accepted as members, the statement added.
When one agent received his patch, a Mongol member told him, “Being a Mongol promises you one of two things – death or prison.”
The jury also ordered the club to hand over items bearing the Mongols name and logo that were seized by the government.
Another aspect of the jury’s forfeiture decision seemed to puzzle attorneys on both sides of the case.
The jury last month convicted the Mongol Nation Motorcycle Club of both violating the Racketeer Influenced and Corrupt Organizations Act and of conspiracy to violate the act. Welk and Brunwin asked the jury to authorize forfeiture under both convictions.
In its verdict Friday, the jury supported forfeiture of the trademarks and some previously seized personal property in connection with the conspiracy conviction.
But it refused to approve forfeiture of anything under the more specific RICO conviction. Welk said he had no idea why the jury split its decision. Yanny and Stubbs both said the jury simply reached a compromise verdict.
After an October 2008 raid on more than 100 club sites, 77 individual Mongols eventually pleaded guilty to crimes.
Carter set a hearing for Feb. 28 to consider the First Amendment issues, Yanny’s motions asking for the Mongol Nation to be acquitted or the case to be dismissed and Welk’s motion for the initial forfeiture order.
The judge also scheduled a sentencing hearing for that day, but he and the attorneys said they expect the hearing to be postponed. Welk said that in addition to forfeiture, the Mongol Nation club could be fined as much as $500,000 or more.