Mongols Learned Inquisition
The oral arguments this morning in the Mongols Nation case, made before a three judge panel of the United States Court of Appeals for the Ninth Circuit in Pasadena, were as arcane and nonsensical as an argument between John Duns and Thomas Aquinas over the limits by which reality may be understood through philological inference: Particularly if one begins every other sentence with the word “gang.”
Gang, gang, gang, gang, gang, gang, gang
The judges were Richard D. Sack, Susan Pia Graber and Mary Helen Murguia. The Mongols were represented by gravel-voiced Joe Yanny, who from time to time seemed stumped by the fatuousness of the judges’ assumptions about the Mongols “gang.”
“There is no gang,” Yanny said, but Sack, Graber and Marguia all seemed to really like saying “gang.”
But not as much as the Reese Witherspoonesque L. Ashley Aull who was so adorable in her medium grey suit, matching sweater and big, black glasses that she almost made the hearing watchable – just as long as you didn’t try to keep up with the ridiculous words coming out of her mouth.
Aull, who was a freshmen at Harvard when the indictment in the original Mongols case titled U.S. v. Cavazos et al. was unsealed, began her sophomoric diatribe like this.
“The court,” by which she meant district judge David O. Carter, “misapplied the distinctness requirement under RICO.”
RICO is the ironic acronym for a federal law called Racketeer Influenced and Corrupt Organizations Act. The law makes it illegal to be a criminal and has become a kind of cruel joke among federal prosecutors. It is an increasingly complex law and understanding that is the only way to even begin to comprehend what happened this morning in Pasdena. The “distinctness requirement” is one facet of RICO case law.
Judge Sack interrupted Aull. “It would help me if, under your view, you would tell me what is the purpose in RICO of having a distinctness requirement.”
And with that, Aull was off and running. “My understanding under Cedric Kushner is that the court took a fairly textural approach to the distinctness requirement saying the way 1962 (c) and (d) had been phrased suggested that there did have to be a difference between the person alleged as the defendant and the enterprise that the defendant was employed by or associated with. Um. I think that textural distinction is the proper one. I would say under the statute in order for a person to be associated with or employed by a particular enterprise it certainly suggests that the enterprise could be broader than that person and as a result under Cedric Kushner and Living Designs the test as far as articulated followed that same sort of shape of the Venn diagram which is that the enterprise charge has to be DIFFERENT from, neither the same as, nor a part of the defendant….”
Justice Graber interrupted there so this might be a good time to answer the more obvious questions.
Footnotes So Far
Cedric Kushner Promotions, Ltd. v. King was a civil RICO case brought by a fight promoter named Cedric Kushner against the more famous fight promoter Don King. It was decided by the Supreme Court in 2001. The issue, and this is an oversimplification, was whether Don King was a person “distinct” from his corporation. Justice Breyer wrote “The corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity.” Cedric Kushner pops up in the Mongols Nation case because the government, which is to say Ashley Aull, is now arguing that the turn of phrase Mongols Nation is akin to Don King’s corporate veil. She thinks Mongols Nation is an enterprise with which the defendants in the Cavazos case were employed by or associated with and that “Mongols Nation” is a subset of the Mongols Motorcycle Club – or maybe she means it to be the other way around. Since she was in high school when the investigation on which the Cavazos indictment was based occurred, she does not understand or care that the Don King role was actually played by Ruben “Doc” Cavazos who was expelled from the club because of his criminality before the indictment bearing his name was unsealed and who is now in federal prison.
Living Designs, Inc. and Plant Exchange, Inc., Plaintiff v. E.I. DuPont de Nemours and Company, Defendant was a civil RICO case decided by this same Ninth Circuit in 2005. Allegedly, DuPont sold horticulturalists in Hawaii a fungicide contaminated with an herbicide that killed all their plants. It was an enormously complicated case that took more than 15 years to finally adjudicate but the government brought it up here because the thorniest legal question in Living Designs was who was a “person” under RICO and what was the “enterprise.” The question was whether a small group within DuPont, and DuPont’s lawyers, and the expert witnesses hired by DuPont’s lawyers were an “associated in fact” conspiracy different from the DuPont corporate entity. Living Designs is a turgid decision and it is hard to understand what Aull is driving at other than to try to divide the Mongols Motorcycle Club into multiple, imaginary parts she has made up in her head so she can convict the club of racketeering.
A Venn Diagram is a logical illustration made of circles that attempts to show where mathematical sets overlap. The government used them in Judge Carter’s court when it tried to demonstrate the connection between the patched Mongols, Mongols prospects, Mongols hang arounds, Mongols wives, Mongols children and bartenders who once served a Mongol a drink.
More Legally Blonde
“So, is it sufficient in your view if the person is a subset of the enterprise,” Graber asked. Then there was another explosion of rhetoric.
“Yes.” Aull said very quickly before she sucked all the rest of the air out of the chamber. “Ithas…what…well…eh…uh…in terms of distinctness, absolutely. The person also has to meet the definition of a person under RICO as an entity capable of holding property. There is not a dispute here that this one would be. But, yes I would submit that if the person is a subset of the enterprise that would be sufficient. That said, the test…the court has articulated the test in really two different ways. I think they reach the same place. But, the first way is that, as I already said, that the …enterprise has to be different from and neither the same as nor a part of the charged defendant or alternatively using language that originally came from the Seventh Circuit and then was adopted by Cedric Kushner there has to be a legal or practical separation between the defendant and the enterprise. And, I would submit that under either articulation of the test the facts are more than sufficient here.”
All About Them Marks
A minute later Aull summarized the case perfectly. “The facts I will agree are strange but reality is strange in this case. We have the instance where a GANG has created an entity to hold its trademark rights.”
Sack barely had enough breath to wonder “Is there something I don’t understand where these trademarks are important to the government.”
Unfortunately, nobody in the audience stood up to explain, “Yeah! That’s the whole point! To strip motorcycle clubs of their insignia.”
So, Aull got to answer instead. “Um…I would say they’re…they are…I guess I will have one key answer, which is the registration of trademarks by a GANG gives that GANG the right to go to FEDERAL court and enforce its violent territory and its GANG rights using the power of the court! That is a HUGE distortion of the federal trademark system and I think it is extremely RIGHTEOUS for the government to try to strip a GANG of the power to expand its own value and territory with the use of the federal trademark system.”
Yanny Gets A Minute
The justices stumbled around for a while trying to understand some of the connections Aull had tried to make between the various “Mongols subsets.”
When Yanny finally got his turn to speak the justices tried to cross examine him about Aull’s many non sequiturs. These three judges seemed to have no idea of what a motorcycle club is except for the lies Aull had just told them. At one point Yanny tried to protest that there was “no distinction” between Mongols Nation and the Mongols Motorcycle Club.
“This is no different from the L.A. County Sheriff’s Department,” he said. It was a reference to a recent scandal that put the local sheriff in the penitentiary. His point was that the law enforcement agency was not necessarily a criminal organization because some of its members were criminals.
“Everybody has already been punished” Yanny told the appeals panel. He turned and swept his hand toward the audience. “Are we now going to punish the other thousand men who did nothing wrong?”
And then suddenly the judges decided Yanny was out of time.
Time may be running out on this case, too. Or if Aull has her way, time may be running out for motorcycle clubs.
You can watch the entire proceeding below.