Sitting in a somber federal courthouse in Santa Ana, California, a jury box is full of curious and pensitive faces. US Attorney Steve Welk speaks to them forcefully. Welk is going well beyond any legal argument. He is attacking the very soul of motorcycle culture and using every scare tactic that he could possibly think of. Welk is on a mission… a mission to ban symbolic speech… at least the symbolic speech that he finds objectionable… for now.
US Attorney Welk could have put on a clean case. He could have presented fair evidence, applied it clearly to the law from the government’s perspective, and used logic and reason to make his case. Then, a dispassionate jury could weigh that evidence and come to a well-reasoned decision. US Attorney Welk could have acted honorably. US Attorney Welk didn’t. Instead, Welk tried to enflame the jury with the testimony of secret confidential informants, given through undercover officers, and shamefully attack anyone or anything that doesn’t bow down to the all-powerful government. Going back to 1969, Welk spun his tale of deceit.
The truth is that Ruben “Doc” Cavazos was a former President of the Mongols Motorcycle Club that used his position dishonorably. Doc secretly engaged in illegal activities that will ever tarnish any legacy that he might have earned. While carefully hiding his crimes from the vast majority of his club, Doc enriched himself and set himself up for a massive payday by way of a book deals and movie rights. All the while, his Mongol brothers were left in the dark, and only a select few took part- all hiding their activities from the Mongol membership as a whole. However, the government doesn’t care. The government simply ignores the fact that Doc and his goons were put out bad in August of 2008, four months before any Mongol knew that there were undercover officers in the club conducting Operation Black Rain. Four Months before the raids. Four months before the government went on TV to gloat about the infiltration. The Mongols acted swiftly to cut out the cancer that is Doc Cavazos as soon as they learned of his sins, without having the slightest clue what was going to happen. Still, the government will do anything, ethical or not, to steal the holy grail of the Mongols identity- the Mongols Patch.
During the trial, undercover officer after undercover officer sat on the witness stand to tell a twisted story. You see, if you are a fault finder, and look for the bad in anything, everything will look bad. Without honor, these officers painted a very dark picture of property patches and anything that they thought would offend the citizens in the jury box. You might ask yourself what a property patch has to do with the trial…and the answer is: nothing. Women that freely choose to wear a property patch have nothing to do with racketeering laws, nor any of the alleged acts of racketeering. This testimony was meant to corrupt the minds of the jury and portray the Mongols as bad people, tipping the scales of justice in the government’s favor. In his closing arguments, Welk called the Mongols “infantile”. Instead of arguing the law, US Attorney Welk called the Mongols names, mocked them, mocked motorcycle culture, called anyone who doesn’t trust police “criminals”, and even tried to paint the Mongols as “vicious animals”. Welk knew exactly what he was doing. He was inflaming the jury, and it worked.
The most offensive of Welk’s tactics from a legal perspective came from secretive confidential informant testimony. Undercover officers testified at trial, over and over again, of things that the undercover officers claimed that confidential informants told them. Confidential informants that the government never disclosed the identity of. So, because the government did not disclose the identities of the confidential informants, the Mongols could not call them as witnesses to refute the undercover officers’ testimony. The Mongols were left without a reasonable way to challenge that testimony. US Attorney Welk danced around the hearsay rules of evidence, exploited loopholes, and the testimony was heard by the jury. Damning testimony that the Mongols were helpless to watch unfold. Damning testimony of things the undercover officers say that someone else told them over a decade ago. Would police lie? The jury didn’t think so. The jury took the undercovers’ testimony of what these undisclosed confidential informants allegedly told them as gospel truth. As a result, the government has been successful thus far in this endeavor.
In order to take the Mongols Patch, the government has to win three separate phases. If the government loses even one, they lose the entire case, and the Mongols Patch cannot be taken. Phase One is the guilt phase, Phase Two is the forfeiture phase, and Phase Three is the 1st Amendment Phase.
In Phase One, on December 10, 2018, the jury returned a verdict of guilty for both substantive RICO and Conspiracy to Commit RICO. For the first time in American history, without even one individual person included in the indictment, the US Government found an organization guilty of a crime. However, all of the underlying RICO allegations that were deemed “proven” by the jury were crimes done by Doc Cavazos and his crew during Doc’s leadership. Likewise, the Mongols were acquitted of all alleged underlying RICO acts that were outside of Doc’s presidency, showing that there is a large difference between Doc’s perverted and dishonorable term and the club as a whole. Still, the government won Phase One of the three phase process, and we moved on to Phase Two, where the government would try to hold all Mongols responsible for the bad acts of a few, just like a school teacher denying all kids recess because one kid didn’t turn in his homework.
In Phase Two, on January 11, 2019, after a one-day hearing and 3 days of deliberations, the jury’s verdict declared the collective membership trademarks “Mongols” and the Mongols’ center patch image subject to forfeit. However, it was done in the most peculiar way, as the jury specifically decided that the marks were not subject to forfeit on the most serious conviction (substantive RICO), but the marks were subject to forfeiture on the much less serious conviction (Conspiracy to Commit RICO). While what occurred in the jury’s deliberations will likely remain a secret forever, this strange outcome points to the conclusion that the jury reached a compromise verdict- striking a deal so that they could all go home. Still, this does not automatically forfeit the collective membership marks. It simply declares them subject to forfeit. Federal Court Judge Carter will make the ultimate decision on whether the government can seize the Mongols’ symbols and ban their use, which brings us to Phase Three.
For Phase Three, on February 28, 2019, a hearing is set for the Honorable Federal Judge Carter to decide a number of legal issues, the principal being whether the government’s seizing and banning the Mongols’ symbols (their collective membership marks) violates the 1st Amendment. In the meantime, scholars all over the country have been invited to submit amicus (friend of the court) briefs, as this is a case of first impression. No matter the outcome, an appeal will certainly happen on either side. This case will be decided by the 9th Circuit Court of Appeals and will likely go up to the United States Supreme Court. For the Mongols? They will continue to fight so that Americans can’t be banned by the government from wearing symbols. They will continue to stand toe-to-toe with the government, defend the 1st Amendment, and never back down. After all, if the government is successful here, whose symbol is next?