The Power To Destroy
Joseph A. Yanny, the attorney representing the Mongols Motorcycle Club in its current RICO case, took a parting shot today at the Ninth Circuit Court of Appeals three judge panel that ruled against the club on July 11.
The case on which the Ninth Circuit panel ruled is titled United States of America versus Mongols Nation An Unincorporated Association. The prosecution is more nefarious and much more dangerous than anything the government has accused the Mongols of doing. The point of the case is to outlaw motorcycle clubs by trying to confiscate their identities over and over and over.
And it should be obvious to anyone with eyes to see and ears to hear that this case is not so much about the Mongols or any other motorcycle club that offends the government as it is about what motorcycle clubs represent: Which is the last, dying gasp of the American frontier which provided the world with a way to escape and evade the tyranny that accompanied the Industrial Revolution; and that fostered the virtues that seemed to epitomize the American character for almost two centuries – independence, iconoclasm, antiauthoritarianism, devotion to a cause and personal courage.
Big Back Story
Mongols Nation is the bastard of a racketeering case called US versus Cavazos et al.that was announced with great fanfare by the Justice Department and the ATF in October 2008. Seventy-nine men were indicted. Scores more were forced to defend themselves against forfeiture proceedings.
The big headlines announced the government’s intention, “In addition to pursuing the criminal charges set forth in the indictment, for the first time ever, we are seeking to forfeit the intellectual property of a gang, The name ‘Mongols,’ which is part of the gang’s ‘patch’ that members wear on their motorcycle jackets, was trademarked by the gang. The indictment alleges that this trademark is subject to forfeiture. We have filed papers seeking a court order that will prevent gang members from using or displaying the name ‘Mongols.’ If the court grants our request for this order, then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.”
The Constitution intervened. A Mongol named Ramon Rivera sued for the right to wear his patch and won. The presiding judge in the RICO case, the late Honorable Florence-Marie Cooper, had been deceived by the prosecutors in the case. Christopher Brunwin and Stephen Welk, and she was furious about it.
Then Cooper died and the 78 individual cases that then comprised the Cavazos’ case (one of the defendants died in custody) were split between two judges named Otis D. Wright II and David O. Carter. The two jurists are distinct. Carter is a former Marine in Vietnam, a graduate of UCLA and in his courtroom he is demanding of the lawyers who appear before him and almost kindly toward defendants. Wright was also a Marine before he became he became a deputy sheriff. Then he went to Cal State LA and became a career prosecutor. It was Wright who suggested the current Mongols case to Brunwin and Welk in open court as a way to get the Mongols. And through the sort of legerdemain that gives American justice a bad named Wright was selected “entirely by random” to preside over it.
Two years worth of hearings, petitions and motions ensued and throughout Wright maintained an almost spotless record of ruling for the prosecution. Wright openly mocked and berated Bob Bernstein, the attorney then representing the Mongols, in January 2014. On the eve of trial, embarrassed by a transcript of what he had told Bernstein, Wright literally threw his hands in the air, told the Mongols new attorney, Joe Yanny, “You win” and recused himself from the case.
Then the case was briefly assigned to Judge John A. Kronstadt. Kronstadt tossed it to the judge most knowledgeable about the case, who was Carter. The case Kronstadt and Wright gifted Carter was virtually a reiteration of the Cavazos case. “I thought this was settled years ago,” Carter said in his first hearing on the matter.
During one memorable hearing Carter went through the list of racketeering predicates and asked over and over about the disposition of that individual case. Inevitably Brunwin would pretend to have to check his notes. Yanny would call out, “He’s in jail, your Honor.”
And repeatedly Carter would ask, “So who goes to jail?”
Yanny called the case a “pointless prosecution” and moved for a dismissal. Carter took 42 days to write his ruling. He agreed the Mongols case should be dismissed.
Appeal The Dismissal
But Brunwin and Welk appealed the matter to the Ninth Circuit. The extraordinary ends to which the prosecutors have pursued this case make it clear that the whole point is to use litigation as a club to punish the Mongols for existing. It is also clear that the government will not stop prosecuting the case until either some judge stops it or until there is no club left to prosecute.
The June 6 hearing before the three judge appeals panel focused on a purely technical issue of RICO called the “distinctness requirement.” The question as far as the three judges – Richard D. Sack, Susan Pia Graber and Mary Helen Murguia – were concerned wasn’t anything a mere layman might answer. It wasn’t about fairness or guilt. It wasn’t about the power of government to unfairly prosecute. It wasn’t about whether the Mongols could continue to wear their patch no matter what – because they legally can continue to do so no matter what. (The government will just try the same case over and over.) It was about the distinctness requirement: Which in those judges own words was where the “Mongols gang” ended and the “Mongols enterprise” began.
The government lawyer who argued the appeal was a woman named L. Ashley Aull. She spoke forever. Yanny barely had time to say :There is no Mongols gang.” Earlier this month, the panel voted that Aull was the prettier of the two lawyers.
The Power To Destroy
Hence Yanny’s petition today that the panel’s ruling of the government’s appeal of Carter’s dismissal be heard by the Ninth Circuit en banc, which is to say by a larger, 11 judge, panel of the appeals court. According to the court’s rules of procedure, the 11 judges must be chosen at random and cannot include any of the three judges who reversed Carter’s dismissal. The Ninth Circuit currently has 14 cases scheduled for en banc review.
Yanny has no choice but to argue the three judge panel’s ruling on the distinctness requirement. “The opinion in this case holds that for purposes of the Racketeering Influenced and Corrupt Organizations Act, the government may plead an ‘enterprise’ that is simply the same ‘person’ referred to by a different name,” Yanny wrote. “This is an unprecedented expansion of prosecutorial power to carve away from an entity what the government arbitrarily considers to be another distinct entity.”
It is an interesting point of law. The government has basically said that the “Mongols Gang” is an employee or associate of the “Mongols Nation.” Maybe the Ninth will review the matter en banc and maybe it won’t. If there is a review, maybe the Mongols will win and maybe they won’t. The “distinctness requirement” issue is fundamentally ludicrous here. This case has always been about indicting a turn of phrase.
More to the point is a section in the petition in which Yanny describes the power to prosecute as the power to destroy.
“Defendant is a fraternal organization consisting primarily of military veterans of Latin ancestry,” Yanny writes about this absurd and asinine case. “Because the Federal Rules of Criminal Procedure do not provide for a summary disposition outside of the motion to dismiss, a reversal of District Judge Carter’s opinion would mean that Defendant is trapped in a criminal justice system that could be endless and rack up countless legal fees for futile purposes. In this case, the power to prosecute, like the power to tax, is the power to destroy. Such a procedural graveyard presents serious peril for members of suspect classifications. This type of prosecution is almost, if not actually, a violation of civil rights of members of this fraternal organization, which are military veterans of Latin descent.”
“For the reasons set forth above, we respectfully request that the Court grant this petition for rehearing en banc. Ten minutes per side cannot do justice to a matter of this significance.”
Yanny and the Mongols have a puncher’s chance of ending this. It is not a slam dunk. But the Mongols don’t have to win. The government has to win. No matter what the courts say the Mongols aren’t going anywhere. Neither are the Hells Angels, Vagos, Bandidos or Outlaws, all of whom, at the moment, are clearly in the government’s sights.