Oregon COC

By Louis Keene and Serge F. Kovaleski, New York Times Jan. 11, 2019

SANTA ANA, Calif. — For its members, a motorcycle club’s logo is both sacred and hard-earned, the banner under which its brand of rugged brotherhood and individualism exist.

But in a setback to the future of one of the country’s most notorious biker groups, a federal jury in California on Friday found that the Mongols motorcycle club must forfeit its rights to the trademarked Genghis Khan-style emblem that identifies the organization.

The jury’s verdict — which concluded the second phase of a wide-ranging eight-week racketeering trial in which jurors also branded the Mongols a criminal enterprise — was not the final word. The group’s lawyers have filed a motion for acquittal and the presiding judge, who in the past has ruled in favor of the Mongols, said he would not immediately order the club to forfeit the logo until he has a chance to review the club’s arguments and consider their free speech rights.

Going after their trademark, which prosecutors have sought for a decade, was an innovative approach intended to break the Mongols by striking at its visual identity, a patch that has been linked to the organization’s culture of violence and intimidation and appears on the vests, T-shirts, caps, mouse pads and motorcycles of hundreds of its members, many of whom also have tattoos of the image.

The Santa Ana, Calif., jury last month convicted the biker club of racketeering, and racketeering conspiracy for the crimes of murder, attempted murder and drug dealing committed by individual members over the past dozen years.

In addition to the logos, the jury found Friday that the government could keep various items bearing the mark — including vests, clothing and documents such as the Mongols’ constitution — as well as a number of guns, ammunition and armored vests it had seized in earlier raids against the group. But the jury denied forfeiture rights for belt buckles, jewelry, lighters, bandannas, stickers, and motorcycle parts — apparently unable to find the “required nexus” between the items and the group’s criminal activity.

Friday’s verdict confounded Mongols members and their lawyers. Stephen Stubbs, the club’s general counsel, described the outcome as “very strange” because the jury did not find the logo forfeitable on the count of racketeering, but did so on the racketeering conspiracy count.

“How can we make sense out of that?” Mr. Stubbs said, adding that it appeared to be a compromise verdict, one agreed upon so the jury could go home after long days of deliberations. “So, we continue to fight so that Americans can’t be banned by the government from wearing symbols.”

Robert Draskovich, a Las Vegas lawyer who has represented the Hells Angels and the Bandidos on criminal matters, said that while the verdicts were a potential “death blow” for the Mongols, the outcome was also foreboding for other motorcycle clubs that have been the focus of law enforcement ire over the years.

“I would say that other clubs are now liable and in danger of being targeted, trampled on and dismantled,” Mr. Draskovich said.

Because the case was focused on the organization itself, no members or associates faced any time behind bars.

But in many ways, some lawyers said, stripping the club of its identifying mark was worse.

“It is the holy of holies,” said Fritz Clapp, a lawyer who has done intellectual property work for the Hells Angels and the Devils Diciples motorcycle clubs.

Indeed, “everyone in the bike gang business agrees that you never want to lose your colors because it shows you can’t defend your turf,” Terry Katz, a board member of the International Outlaw Motorcycle Gang Investigators Association, said in an interview. “And without that set of colors, you are not rock stars.”

The emblem at issue is a black-and-white rendering of the word “MONGOLS” over a drawing of a cartoonish Genghis Khan-like figure sporting a queue and brandishing a sword while riding a chopper motorcycle.

Other lawyers opined that the forfeiture verdict would not hold up on constitutional grounds.

“It is clearly an overreach to sweep up all innocent people by virtue of being part of a motorcycle club,” said Richard Gaxiola, a Phoenix lawyer who has represented the Hells Angels for 15 years.

United States District Judge David O. Carter, who has scheduled a hearing for Feb. 28, acknowledged that the verdicts would likely face constitutional challenges. Talking to lawyers in the case last month, without the jury in the courtroom, Judge Carter said that since the “forfeiture provision is quite literally without limitation, it may exceed constitutional bounds in a particular case.”