Jury orders biker group to give up trade­mark logo

San Francisco Chronicle (Sunday) - - NATION - By Joel Ru­bin Joel Ru­bin is a Los An­ge­les Times writer.

LOS AN­GE­LES — On Cal­i­for­nia’s free­ways, in biker bars and dur­ing not-in­fre­quent clashes with other out­law mo­tor­cy­cle clubs, mem­bers of the Mon­gols are eas­ily iden­ti­fied.

They are the ones in the leather vests and jack­ets adorned on the back with the dis­tinc­tive im­age of a Genghis Khan fig­ure in sun­glasses rid­ing a mo­tor­cy­cle be­neath the group’s name, spelled out in large block let­ters.

Since the group was formed in the late 1960s, the logo has been a po­tent el­e­ment of the Mon­gols’ iden­tity, which over the years has in­cluded an un­mis­tak­able pen­chant for drug deal­ing and vi­o­lence by many mem­bers. Only those who have been ad­mit­ted to the in­ner ranks of the in­su­lar group are al­lowed to stitch the large patches of the in­signia onto their rid­ing ap­parel. And in the closed-off world of mo­tor­cy­cle clubs, built largely around ri­val­ries and al­liances with other groups, the logo is an un­mis­tak­able totem.

The abil­ity of Mon­gols lead­ers to use their im­age was dealt a blow Fri­day when a fed­eral jury in Santa Ana de­cided the club should be stripped of the trade­marks it holds on its cov­eted logo as pun­ish­ment in a rack­e­teer­ing case.

The ver­dict, how­ever, sets up a First Amend­ment show­down over the right of the club’s mem­bers to ex­press them­selves.

Last month, at the end of a lengthy trial, the same jury con­victed the Mon­gols mo­tor­cy­cle club of rack­e­teer­ing and con­spir­acy charges, find­ing the group shared re­spon­si­bil­ity for mur­der, at­tempted mur­der and drug crimes com­mit­ted by in­di­vid­ual mem­bers.

The ver­dict al­lowed prose­cu­tors from the U.S. at­tor­ney’s of­fice to pur­sue some­thing they had long sought: a court or­der forc­ing the Mon­gols to for­feit the trade­marks as part of its sen­tence.

The jury re­turned last week to hear a day of tes­ti­mony and ar­gu­ments from prose­cu­tors and the Mon­gols’ de­fense at­tor­ney on the for­fei­ture is­sue. The panel had to de­cide whether the logo was linked closely enough to the crimes for which the Mon­gols or­ga­ni­za­tion had been con­victed to war­rant forc­ing the club to for­feit the trade­marks to the U.S. gov­ern­ment.

After two days of de­lib­er­at­ing, it de­cided there was, in fact, a tight nexus be­tween the im­age and one of the crim­i­nal charges the club faced — con­spir­acy to com­mit rack­e­teer­ing.

Call­ing the ver­dict the “first of its kind in the na­tion,” U.S. At­tor­ney Nicola Hanna said seiz­ing the Mon­gols trade­marks would serve to “at­tack the sources of a crim­i­nal en­ter­prise’s eco­nomic power and in­flu­ence.”

But the case is not over. U.S. District Judge David Carter de­clined to im­me­di­ately or­der the trade­marks for­feited and in­stead set a hear­ing for next month to ad­dress, among other things, thorny First Amend­ment is­sues raised by the ver­dict.

The gov­ern­ment’s pur­suit of the trade­marks is a novel le­gal strat­egy, based on the idea that control of the trade­marks would not only cut off the stream of money that Mon­gols lead­ers col­lect from sell­ing patches and other mer­chan­dise to mem­bers but would also em­power gov­ern­ment of­fi­cials to stop Mon­gols mem­bers from wear­ing any cloth­ing with the po­tent Mon­gol im­age.

An ef­fort to bar Mon­gols mem­bers from dis­play­ing the logo, trade­mark ex­perts and con­sti­tu­tional schol­ars said, would run the risk of cross­ing con­sti­tu­tional lines set out by the First Amend­ment, which pro­tects people’s rights to as­so­ciate freely and ex­press them­selves.

“Just be­cause you’re found to be a crim­i­nal, you don’t lose your First Amend­ment rights,” said Jef­frey Pearl­man, in­terim di­rec­tor of the In­tel­lec­tual Prop­erty & Tech­nol­ogy Law Clinic at the Uni­ver­sity of South­ern Cal­i­for­nia’s Gould School of Law. “What the gov­ern­ment seems to be try­ing to do is pre­vent these people from as­so­ci­at­ing with each other.”

It is not the first time con­cerns over the First Amend­ment have been raised in the gov­ern­ment’s pur­suit of the Mon­gols. A decade ago, in an ear­lier case, prose­cu­tors sought au­thor­ity to seize cloth­ing bear­ing the Mon­gols’ in­signia. A mem­ber of the club sued, say­ing his rights un­der the First Amend­ment were at risk, and pre­vailed.

“The plain­tiff ’s hard­ship in not be­ing able to ex­press his views and pub­lic in­ter­est in pro­tect­ing speech out­weigh the gov­ern­ment’s in­ter­est in sup­press­ing an in­tim­i­dat­ing sym­bol,” the judge in that case wrote.

At the for­fei­ture hear­ing last week, Joseph Yanny, the Mon­gols’ de­fense at­tor­ney, re­peat­edly told ju­rors that tak­ing the trade­marks from the Mon­gols would amount to a “death penalty” for the group. And on Fri­day, after the ver­dict, he said in an interview that he would ar­gue to Carter that the jury’s de­ci­sion should be set aside in light of the First Amend­ment is­sues.

In­di­vid­ual mem­bers of the Mon­gols, he added, are likely to file their own chal­lenges as well. “It should be a cold day in hell when the judge signs that or­der of for­fei­ture,” Yanny said.

The Mon­gols were formed in the 1970s in Mon­te­bello (Los An­ge­les County) by a group of mostly Latino men who re­port­edly had been re­jected for mem­ber­ship by the Hells An­gels mo­tor­cy­cle gang. It has ex­panded over the decades to in­clude sev­eral hun­dred mem­bers in chap­ters across South­ern Cal­i­for­nia and else­where.

The fed­eral gov­ern­ment has pur­sued the Mon­gols for years, along with sev­eral other biker clubs that au­thor­i­ties have iden­ti­fied as out­law gangs. De­spite their claims of be­ing in­no­cent so­cial clubs, the groups, which in­clude the Hells An­gels, Va­gos and the Out­laws, have long track records of war­ring with one an­other and, ac­cord­ing to au­thor­i­ties, op­er­ate as crim­i­nal or­ga­ni­za­tions that sub­sist on the drug trade.

Michael Robin­son Chavez / Tri­bune News 2008

Mem­bers of the Mon­gols club wear a dis­tinc­tive im­age of a Genghis Khan fig­ure in sun­glasses rid­ing a mo­tor­cy­cle be­neath the group’s name. The group was formed in the late 1960s.

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