Feds Take Aim at Biker Gang’s ‘Colors’

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Christopher Brunwin and Stephen R. Welk made a token effort to stop the inevitable dismissal of the Mongols Nation racketeering case yesterday. It is obvious from the motion they filed that they don’t expect to win.

The document is 58 pages and 17,266 words long. It cites 70 federal cases, 28 federal rules and statues, the Congressional record and two related cases: The 2008 racketeering case against 80 Mongols Motorcycle Club members titled U.S. v. Cavazos at al. and a civil case called Rivera v. Melson et al. Everybody except Brunwin and Welk thinks those two Mongols cases obviated the Mongols case they are still trying to win now.

The motion drips contempt for the Mongols’ current attorneys, Joe Yanny and Elliot Min. Early on the prosecutors opine: “Defendant’s Renewed Motion is long on rhetoric and argument but, as explained in detail below, mostly devoid of any actual legal authority that suggests defendant is entitled to any of the relief it seeks, particularly with respect to the sentencing issue and the request for sanctions.”

Lost Cause
It seems obvious that Brunwin and Welk anticipate a dismissal so they tried to load as many excuses for an appeal into this terrible, unreadable motion as possible. The document contains no actual narrative or argument, just lots of objections to what the other attorneys just said in their motion to dismiss two weeks ago. At one point the motion calls one of the Mongols’ contentions, “so vague that it is impossible to craft a meaningful response.” So therefore Brunwin and Welk don’t have “to craft a meaningful response.” If only all of life’s problems were that easy to solve.

Lay observers must guess what the point of this case has ever been. Yesterday’s motion suggests that Judge David O. Carter must, must, must allow Brunwin and Welk to conduct a three month long trial at significant public expense and catastrophic expense to the Mongols.

The point of the indictment that supports this case has always been to seize the Mongols’ identifying marks as a sort of prelude to seizing the identifying marks of all motorcycle clubs. That is the whole point. As Judge Carter noticed about a hundred times in the one hearing he has held on this case, “Nobody goes to jail.” There are really only four possible outcomes.

1) The case is dismissed

2) The case goes to a three month trial and the word “Mongols” and the patch Mongols wear are declared guilty of racketeering and the word and the patch are filled with shame for their misdeeds.

3)After a three month trial the word and the drawing are found innocent because, you know, a word and a drawing can’t actually stab anybody or smoke a bone.

4) After a three month trial which ends with a jury of Sons of Anarchy fans convicting the word “Mongols” and the patch Mongols wear of racketeering Welk enters a motion to formally seize the patches which actually, legally, can not prevent anybody from uttering the sound Mongols, or writing it, or thinking it, or from wearing the Mongols patch.

That’s it.

Must Have Trial
In their motion, Brunwin and Welk insist over and over that there must be a trial. In one of the motion’s few clear declarations, the prosecutors state, “it is legally impossible to make any determination of the criminal forfeiture issues without a trial.”

In a less clear but representative passage the two prosecutors make an irrelevant citation that requires “the adjudication of the criminal forfeiture issues only after a defendant’s conviction.”

The Mongols have made the obvious argument that prosecution is itself a form of punishment. Yanny and Min don’t work for free. The issue of whether the government can seize the Mongols patch has gone on for seven years. Three federal judges, including Carter, have ruled that the government can’t seize the patch. Brunwin and Welk expect to win by making the Mongols go broke. It its motion to dismiss, the Mongols argues that if Judge Carter rules now that it is unconstitutional to seize the Mongols membership marks, “there is a high likelihood that the prosecution would not even continue, and the taxpayers, the Court, and this defendant could be spared abusive waste by overzealous prosecutors with an unlimited budget.”

The prosecutors riposte is the snotty, “Defendant’s concern for the taxpayers and the court is touching, but this statement is ridiculous. Defendant obviously has no basis for its bizarre prediction about the likelihood of the prosecution continuing in the absence of a forfeiture allegation, a decision that would be made solely by the government.”

The Government Suggests
Then they try to rough up the judge and opposing counsel a little with : “Should the court decide to take the unprecedented step of actually attempting a pre-trial determination of the merits of the criminal forfeiture allegation, the government suggests that it must assume that the defendant will be convicted of the substantive offenses and that all of the allegations of the indictment will have been proven to be true. Since the defendant will have been convicted of violations of 18 U.S.C. § 1962, it must also be assumed that the evidence that will have been presented by the government during the course of the imaginary trial leading to the imaginary conviction will have been sufficient to establish a nexus between the Marks and the underlying criminal activity. Defendant certainly offers no clue as to how such an analysis should proceed, and cites no example of any court ever having engaged in such an exercise before in a criminal case.”

Joe Yanny has asked the judge to make Brunwin and Welk pay his legal fees, both to spare the Mongols his expense and as a warning to all the other vile, bullying federal prosecutors. Brunwin and Welk appear not to care. They are going to appeal whatever Judge Carter rules anyway. That’s how the game works. “In the final section of its 51-page memorandum,” the prosecutors sniff, “defendant asks that the court sanction the government, the U.S. Attorney’s Office, and the individual prosecutors working on this matter for selective prosecution, and under 28 U.S.C. § 1927, 18 U.S.C. § 3006A, and the Equal Access to Justice Act. These frivolous requests should be rejected out of hand.”

The Mongols have a week to respond. There will be a hearing on the proposed dismissal on August 3. Carter should file his written decision on the dismissal before Labor Day. Brunwin and Welk will probably file an appeal to the Ninth Circuit by Halloween. Nobody knows when this case will actually end.

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Expect the Mongols Nation case to be dismissed by Judge David O. Carter next Monday afternoon. A hearing on the dismissal is scheduled for 2 p.m. in Carter’s courtroom in the Ronald Reagan Federal Building and Courthouse in Santa Ana, California.

The case has attracted national attention. At issue is the question of whether the government, or a couple of rogue federal prosecutors named Christopher Brunwin and Stephen R. Welk, can forbid members of the Mongols Motorcycle Club from wearing the club’s distinctive insignia. Brunwin and Welk have made careers of this. They attempted to seize the Mongols trademarks in a criminal case called U.S. versus Cavazos and others and again in a civil case named Ramon Rivera versus Kenneth E. Melson, Acting Director, Bureau of Alcohol, Tobacco, Firearms and Explosives and others. They lost both those cases. American Civil Liberties Union attorney David Loy who represented Rivera called the attempted seizure of the Mongols patch “an outrageous violation of the First Amendment, and an absolute abuse of forfeiture and trademark laws.”

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