Monthly Archives: March 2019

Why US v Mongol Nation is Still a Threat Despite Trademark Win

By David “Double D” Devereaux

The recent decision by Judge David Carter in US v. Mongol Nation that the First and Eighth Amendments to the US Constitution prohibits the government’s request to seize the collective membership marks of the Mongols MC, including their club name patch and center-patch, is a victory for all. A victory that should be discussed and celebrated. However, the MPP also believes that part of this discussion should focus on the other implications to Judge Carter’s decision. Implications that aren’t being discussed because the focus has understandably been on the patch forfeiture issues. What other implications? Beyond the issues of forfeiture, a brand-new strategy to target motorcycle clubs under RICO has been born and legally confirmed. The idea that a motorcycle club can be indicted under RICO as an entity, regardless of other members personal guilt, for crimes committed by individuals already punished for those crimes, should equally alarm everyone. Although the government can’t take a club’s patch, they can seize a club’s property and impose huge fines. What else could the government do with this new theory of prosecution?

A Brief History

In the government’s more than decade long mission to take the Mongols MC’s collective membership marks, and property bearing those marks, they stumbled upon a new theory of prosecution after previous attempts to take the patch were ultimately unsuccessful. The 9th Circuit ruled that the government couldn’t take patches and property from members of the club that had not been indicted because that would violate the First Amendment.

However, the court provided a blueprint for the government’s next move. The court concluded that the Mongol Nation, the unincorporated association that owns the collective membership marks in question, would have to be indicted as an entity for the theory to work. So, that’s exactly what the US Attorney decided to do.

US v. Mongol Nation has been the most recent result of the government’s new strategy. The Mongol Nation, as an entity, defined as all full patched members of the club, was charged and found guilty by a federal jury of racketeering and conspiracy to engage in racketeering under the RICO statute. That jury also granted the government’s request for forfeiture of collective membership marks, which Judge Carter set aside for Constitutional reasons. However, Judge Carter upheld the jury’s decision to convict and conditionally granted forfeiture of seized property. Specific items to be seized will be decided at a sentencing hearing set for April 24th, 2019.

They can’t take a club’s patch, but guilty verdict on MC as an entity upheld.

Although Carter doesn’t believe the government can take a club’s collective membership marks, he “agrees with the Government that an unincorporated association including the Mongol Nation can be held liable for each predicate act alleged in the indictment.”(The predicate acts in this indictment include everything from drugs to assault and murder charges)

The Court sees no meaningful distinction between corporate criminal responsibility and liability of unincorporated associations. The Supreme Court addressed the criminal liability of a partnership and specifically held that “the business entity cannot be left free to break the law merely because its owners, stockholders … partners … do not participate in the infraction.

Leadership v. Rogue Actors- determining guilt for an association.

It is not enough that various members and associates of a motorcycle club “are involved in spontaneous criminal acts as an individual or as a small group of individuals. In other words, the spontaneous rogue acts of individual members and associates do not create guilt for an association.”

What element is required to find an association guilty of RICO? An implied connection to leadership is enough. “[T]o the extent that an illegal act was committed at the express or implied direction of the leadership of the defendant Mongol Nation, the entity may be found guilty. This is entirely consistent with corporate criminal responsibility, and is precisely what Congress intended in passing RICO, which expressly targets criminal organizations.

The concerning terms “implied direction of the leadership…”

Further analysis of Carter’s decision may shed some light. Carter argues that Congress may constitutionally impose criminal liability upon an entity for acts of its agents. “Such liability may attach without proof that the conduct was within the agent’s actual authority, and even though it may have been contrary to express instructions.” Carter also argues that it’s not necessary for the government to prove that the act was authorized by the entity formally or in writing. Sounds like the government has a very low threshold of proof to establish that an act was committed “at the implied direction of leadership.”

So, what sentence will Judge Carter impose?

Judge Carter has been very explicit about what he intends to do on April 24th. Carter writes, “The Mongol Nation is guilty of substantive RICO and RICO conspiracy. The criminal organization is subject to sentencing fines and criminal forfeiture consistent with this Order.

Items to be forfeited include weapons, ammunition, body armor, and related items originally seized during ATF raids. This comes as no surprise to the MPP as it seems consistent with other RICO forfeitures.

However, sentencing fines for criminal liability are not explained in-depth. How much can the fine be? Are there limits? Who pays the fine? The leadership? The membership?

What sentences will we see in the future?

Independent of sentencing fines and asset forfeitures, what else could the government seek in terms of criminal liability when a club is indicted as an entity? I’m not sure many people have a solid answer to this question. But I think the question is definitely worth exploring.

After a club is found guilty as an entity under RICO, can the government feasibly obtain an order against any member of the club possessing or carrying a firearm? The answer may vary depending on what state you are in, but even the very pro-2nd Amendment state of Texas is revoking gun rights from individuals solely for membership in a motorcycle club authority label a gang. The sky may not be falling, but possible impacts to gun rights are at least a possibility, particularly in “may issue” states.

What about employment? An individual without a criminal record is a member of an entity found guilty under RICO of Racketeering and Racketeering Conspiracy. Their employment contract requires that all employees not have a criminal record. Could it be argued that they now in violation of their employment contract?

There is no way to predict what the federal government will do moving forward with the newfound strategy of targeting a motorcycle club as an entity under RICO. But there are empirical reasons to believe that whatever strategy authorities employ will not advance civil liberties. Who could have predicted the strategy to completely redefine the First Amendment before they initially tried to take the Mongols MC’s patch? Who would have predicted the government’s initial success? Who would have predicted that nearly 200 individuals in Waco would be arrested on generic affidavits and incarcerated on $1-$2 million dollars bail instead of being questioned and released? Who would have guessed an individual could be arrested for Unlawful Carry in Texas as a LTC holder solely for being a member of a motorcycle club?

The Constitution does not seem to be a barrier in the decision-making calculus of authorities’ intent on targeting motorcycle clubs.

The post Why US v Mongol Nation is Still a Threat Despite Trademark Win appeared first on Motorcycle Profiling Project.

Source:: Why US v Mongol Nation is Still a Threat Despite Trademark Win

Why US v Mongol Nation is Still a Threat Despite Trademark Win

By David “Double D” Devereaux

The recent decision by Judge David Carter in US v. Mongol Nation that the First and Eighth Amendments to the US Constitution prohibits the government’s request to seize the collective membership marks of the Mongols MC, including their club name patch and center-patch, is a victory for all. A victory that should be discussed and celebrated. However, the MPP also believes that part of this discussion should focus on the other implications to Judge Carter’s decision. Implications that aren’t being discussed because the focus has understandably been on the patch forfeiture issues. What other implications? Beyond the issues of forfeiture, a brand-new strategy to target motorcycle clubs under RICO has been born and legally confirmed. The idea that a motorcycle club can be indicted under RICO as an entity, regardless of other members personal guilt, for crimes committed by individuals already punished for those crimes, should equally alarm everyone. Although the government can’t take a club’s patch, they can seize a club’s property and impose huge fines. What else could the government do with this new theory of prosecution?

A Brief History

In the government’s more than decade long mission to take the Mongols MC’s collective membership marks, and property bearing those marks, they stumbled upon a new theory of prosecution after previous attempts to take the patch were ultimately unsuccessful. The 9th Circuit ruled that the government couldn’t take patches and property from members of the club that had not been indicted because that would violate the First Amendment.

However, the court provided a blueprint for the government’s next move. The court concluded that the Mongol Nation, the unincorporated association that owns the collective membership marks in question, would have to be indicted as an entity for the theory to work. So, that’s exactly what the US Attorney decided to do.

US v. Mongol Nation has been the most recent result of the government’s new strategy. The Mongol Nation, as an entity, defined as all full patched members of the club, was charged and found guilty by a federal jury of racketeering and conspiracy to engage in racketeering under the RICO statute. That jury also granted the government’s request for forfeiture of collective membership marks, which Judge Carter set aside for Constitutional reasons. However, Judge Carter upheld the jury’s decision to convict and conditionally granted forfeiture of seized property. Specific items to be seized will be decided at a sentencing hearing set for April 24th, 2019.

They can’t take a club’s patch, but guilty verdict on MC as an entity upheld.

Although Carter doesn’t believe the government can take a club’s collective membership marks, he “agrees with the Government that an unincorporated association including the Mongol Nation can be held liable for each predicate act alleged in the indictment.”(The predicate acts in this indictment include everything from drugs to assault and murder charges)

The Court sees no meaningful distinction between corporate criminal responsibility and liability of unincorporated associations. The Supreme Court addressed the criminal liability of a partnership and specifically held that “the business entity cannot be left free to break the law merely because its owners, stockholders … partners … do not participate in the infraction.

Leadership v. Rogue Actors- determining guilt for an association.

It is not enough that various members and associates of a motorcycle club “are involved in spontaneous criminal acts as an individual or as a small group of individuals. In other words, the spontaneous rogue acts of individual members and associates do not create guilt for an association.”

What element is required to find an association guilty of RICO? An implied connection to leadership is enough. “[T]o the extent that an illegal act was committed at the express or implied direction of the leadership of the defendant Mongol Nation, the entity may be found guilty. This is entirely consistent with corporate criminal responsibility, and is precisely what Congress intended in passing RICO, which expressly targets criminal organizations.

The concerning terms “implied direction of the leadership…”

Further analysis of Carter’s decision may shed some light. Carter argues that Congress may constitutionally impose criminal liability upon an entity for acts of its agents. “Such liability may attach without proof that the conduct was within the agent’s actual authority, and even though it may have been contrary to express instructions.” Carter also argues that it’s not necessary for the government to prove that the act was authorized by the entity formally or in writing. Sounds like the government has a very low threshold of proof to establish that an act was committed “at the implied direction of leadership.”

So, what sentence will Judge Carter impose?

Judge Carter has been very explicit about what he intends to do on April 24th. Carter writes, “The Mongol Nation is guilty of substantive RICO and RICO conspiracy. The criminal organization is subject to sentencing fines and criminal forfeiture consistent with this Order.

Items to be forfeited include weapons, ammunition, body armor, and related items originally seized during ATF raids. This comes as no surprise to the MPP as it seems consistent with other RICO forfeitures.

However, sentencing fines for criminal liability are not explained in-depth. How much can the fine be? Are there limits? Who pays the fine? The leadership? The membership?

What sentences will we see in the future?

Independent of sentencing fines and asset forfeitures, what else could the government seek in terms of criminal liability when a club is indicted as an entity? I’m not sure many people have a solid answer to this question. But I think the question is definitely worth exploring.

After a club is found guilty as an entity under RICO, can the government feasibly obtain an order against any member of the club possessing or carrying a firearm? The answer may vary depending on what state you are in, but even the very pro-2nd Amendment state of Texas is revoking gun rights from individuals solely for membership in a motorcycle club authority label a gang. The sky may not be falling, but possible impacts to gun rights are at least a possibility, particularly in “may issue” states.

What about employment? An individual without a criminal record is a member of an entity found guilty under RICO of Racketeering and Racketeering Conspiracy. Their employment contract requires that all employees not have a criminal record. Could it be argued that they now in violation of their employment contract?

There is no way to predict what the federal government will do moving forward with the newfound strategy of targeting a motorcycle club as an entity under RICO. But there are empirical reasons to believe that whatever strategy authorities employ will not advance civil liberties. Who could have predicted the strategy to completely redefine the First Amendment before they initially tried to take the Mongols MC’s patch? Who would have predicted the government’s initial success? Who would have predicted that nearly 200 individuals in Waco would be arrested on generic affidavits and incarcerated on $1-$2 million dollars bail instead of being questioned and released? Who would have guessed an individual could be arrested for Unlawful Carry in Texas as a LTC holder solely for being a member of a motorcycle club?

The Constitution does not seem to be a barrier in the decision-making calculus of authorities’ intent on targeting motorcycle clubs.

The post Why US v Mongol Nation is Still a Threat Despite Trademark Win appeared first on Motorcycle Profiling Project.

Source:: Why US v Mongol Nation is Still a Threat Despite Trademark Win

Idaho Senate Apologizes To Motorcyclists Forced To Remove Colors

By David “Double D” Devereaux

After individuals were forced to remove their motorcycle club colors before entering the Idaho Senate viewing chambers to observe a vote on a bill addressing motorcycle profiling on March 4th, ABATE of Idaho sent a letter to every legislator in Idaho requesting an end to this discriminatory practice on March 8th.

The President Pro Tempore, Senator Brent Hill, initially responded by apologizing for any inconvenience, but the policy going forward was not clearly stated in his response. So ABATE of Idaho pressed forward requesting an explicit policy. Senator Hill responded in writing that individuals wearing motorcycle club colors would not be denied access to Idaho Senate Chambers going forward.

Although S1109, which would have prohibited motorcycle profiling, failed by one vote on the floor of the Senate this year, this incident and outcome move motorcyclists one step closer to legislative protection and further reinforces the importance of fighting back.

ABATE sends cease and desist to every legislator in Idaho

ABATE responds to Senate’s ambiguous apology

(Cont.)

Idaho Senate clarifies MC colors allowed in Senate Chambers

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Source:: Idaho Senate Apologizes To Motorcyclists Forced To Remove Colors

No MC Colors Allowed in Idaho Senate for Profiling Bill Vote

By David “Double D” Devereaux

On Monday March 4th, 2019 members of the motorcycle club community were victims of unconstitutional discrimination inside the Idaho State Capitol when they were told by Capitol Security personnel that they would have to remove their motorcycle club colors if they wanted to enter the Senate chambers to observe a floor vote on S 1109, a bill prohibiting motorcycle profiling. These individuals (one a member of the Brother Speed MC and one an associate of the Vagos MC) also participate in ABATE, the primary grassroots group lobbying for a law in Idaho, and complied in order to watch the vote. ABATE of Idaho responded by sending a cease and desist request to every legislator in Boise on Friday, March 8th, 2019.

Constitutional Issues

ABATE’s letter to Legislators reads: “Any government agent denying an individual access to Senate Chambers because they are wearing motorcycle club colors is a clear violation of speech, association and due process rights protected by the US Constitution. Motorcycle club colors are First Amendment protected expression and wearing motorcycle club colors is considered expressive conduct, particularly when that expression is political.

Bree Walker, representing ABATE of Idaho, reported to the MPP that she talked with the Capitol Security Officer that denied MC members wearing colors access on March 4th and confirmed that the Idaho Senate Sergeant at Arms; Sarah Jane McDonald, ssgt@senate.idaho.gov, (208) 332-1400, was responsible for giving the order.

Motorcycle profiling and discrimination have literally followed motorcyclists inside the Idaho State Capitol, a place where freedom of expression in a free society is supposed to be paramount, while participating in the democratic process to address issues of profiling and discrimination. Unfortunately, S 1109, a simple measure codifying Constitutional principles, fell one floor vote shy of passing.

Denying access to individuals because they are wearing motorcycle club colors exposes the government officials involved to potential civil liability under 42 USC Section 1983 for violations of the First and Fourteenth Amendments.

Cease and Desist Request

ABATE of Idaho sent a letter to all state Senators and Representatives requesting “that the Idaho Senate, House of Representatives, and all law enforcement and other personnel involved with Capitol security, take whatever action necessary to guarantee that such unconstitutional acts of discrimination targeting those wearing motorcycle club colors at the Idaho Capitol immediately ceases.”

There is nothing in the Senate Rules that would prohibit motorcycle club colors. That’s freedom of expression. Why would there be?

It appears that evidence of motorcycle profiling in Idaho can no longer be denied.

The post No MC Colors Allowed in Idaho Senate for Profiling Bill Vote appeared first on Motorcycle Profiling Project.

Source:: No MC Colors Allowed in Idaho Senate for Profiling Bill Vote

Texas Man Charged with Unlawful Carry Solely for Being a Bandido

By David “Double D” Devereaux

The MPP has heavily reported on the recent trend of individuals being arrested for possession of handguns merely for membership in a motorcycle club. This includes individuals with no criminal records and License To Carry holder’s. The MPP has even issued a travel warning to motorcyclists traveling through Texas. One such case against a member of the Bandidos Motorcycle Club (Ashley Becker) in Lubbock, TX continues with a refiling of charges for Unlawful Carry for mere membership in the club, which authorities label a criminal street gang. Law enforcement and prosecutors should dismiss all such cases in the name of justice because they rely on an unconstitutional application of statute which ignores the basic principle of personal guilt.

The Details

Texas Penal Code 46.02, the statute prohibiting gang members from carrying weapons, is being misapplied to individuals simply for being members of motorcycle clubs. Take Ashley Becker, who was originally charged with Unlawful Carry and suspicion of possessing a controlled substance in Lubbock, Texas in 2018. The weapon wasn’t illegal, and no crime was committed. He was arrested under 46.02 for being a Bandido in possession of an otherwise legal weapon. The alleged controlled substance, after being tested multiple times, turned out to be inconclusive.

While prosecutors make no admission that they misapplied statute 46.02, they filed a motion to dismiss. The motion reads, “The interest of justice cannot be served through further proceedings in this matter.”

Although the 2018 indictment was dismissed without prejudice, on February 9, 2019 charges were refilled against Becker on the Unlawful Carry charges. The affidavit identifies Becker’s membership in the Bandidos as the only probable cause for arrest.

Authorities persist despite absurd, unconstitutional interpretation of law.

Despite the fact that their interpretation of statute is unconstitutional and in violation of established state and federal rules of evidence, law enforcement and prosecutors persist in wasting public resources targeting individuals like Becker for participating in Constitutionally protected expression and association. This absurd interpretation of 46.02 would mean that carrying a weapon is unlawful for any individual that is a member of the Bandidos Motorcycle Club, with no other evidence, even with a License to Carry.

“If this seems outrageous, your instincts are correct. The MPP, after conducting cursory research on 46.02, has identified precedent, Ex Parte Flores 483 SW 3d 632 (2015), that clearly articulates how law enforcement is currently misinterpreting and misapplying Texas statute in violation of the basic rules of evidence and the US Constitution.”

“Law Enforcement and prosecutors should immediately cease and desist misapplying Texas statute. Applying Texas Penal Code 46.02 to members of clubs with no criminal records, and even LTC’s, would chill 1st Amendment Association and ignore the doctrine of personal guilt, “a cornerstone of American Jurisprudence.”

In the name of justice, prosecutors in Lubbock should again file a motion to dismiss all charges against Becker, this time with prejudice. Furthermore, prosecutors and law enforcement in El Paso, Dallas, and across the state of Texas should follow suite.

After motorcycle clubs, who’s next?

Everyone should ask themselves, “After motorcycle clubs, who’s next?” Every large identifiable group has individuals that have committed crimes. Should your civil liberties be taken based on the actions of other individuals you associate with even if you had no involvement in criminal activity?

The blatant attempt to disarm the entire community regardless of an individual’s personal involvement in criminal activity will not stop with motorcycle clubs if authorities are successful. Every American should be deeply concerned about this assault on basic civil liberties. Unpopular speech, including unpopular association, is the most important speech to protect. Or so long has held the Supreme Court.

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Source:: Texas Man Charged with Unlawful Carry Solely for Being a Bandido

Motorcycle Profiling is Official Daytona PD Policy

By David “Double D” Devereaux

Video footage obtained by the MPP from the North Florida Council of Clubs confirms that motorcycle profiling is not only widespread in Daytona Beach, but it is also official law enforcement policy. In the words of Daytona PD Chief Craig Capri, “If you wear your colors [in Daytona Beach], you’re going to get stopped.” This official policy is unconstitutional and exposes the entire Daytona PD to civil liability. This video evidence also justifies a cost-free legislative solution in the form of a simple prohibition against motorcycle profiling combined with relief for victims.

Chief Capri’s Statement Proves Unconstitutional Practices Are Policy

Without any other evidence, Chief Capri’s Statement alone proves that the Daytona PD profiles motorcycle club members as a matter of policy. This official policy irrefutably violates the 1st, 4th, and 14th Amendments to the US Constitution.

Federal courts have confirmed that motorcycle club colors are protected by the 1st Amendment. To punish an individual through seizure in the form of a profiling stop anyone “who wears the insignia of [a 1% motorcycle club], without regard to or knowledge of that individual’s specific intent to engage in the alleged violent activities committed by other members, is antithetical to the basic principles enshrined in the First Amendment and repugnant to the fundamental doctrine of personal guilt that is a hallmark of American jurisprudence. see Coles v. Carlini 162 F.Supp.3d 380 (2015)

Chief Capri’s statement also violates the 14th Amendment because it represents Selective Enforcement of the law. Capri’s statement proves that the strategy to use traffic stops as a way to punish those exercising their rights of expression and association is premeditated and selective. In terms of the 4th Amendment, any minor traffic pretext used to stop a club member in Daytona Beach should be presumed invalid.

Exposure To Civil Liability

Motorcycle profiling as a matter of policy implicates the entire Daytona PD at an organizational level. Independent of individual officers and incidents, each profiling stop exposes the Daytona PD as an entity to civil liability. Chief Capri is the highest authority at the Daytona PD and clearly articulates a policy of discrimination and Selective Enforcement. 42 U.S.C. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

An Epidemic In Florida

The National Motorcycle Profiling Survey validates the Florida’s profiling epidemic. The 2018 NMPS lists Florida as one of the top motorcycle profiling concerns in America. According to the 2018 NMPS, 65% of Florida survey participants reported being the victims of motorcycle profiling at least once since 2012. These survey statistics are 99% reliable with less than a 2% margin of error. (See NMPS Executive Summary 2018).

Despite promises, Daytona PD has failed to address motorcycle profiling

There is a long history and pattern of evidence establishing that motorcycle profiling is engrained in the Daytona Beach PD. And the Daytona PD has made empty promises when caught with their hands in the cookie jar.

While attending the 2017 Biketoberfest rally in Daytona Beach, Florida, members of the Iron Horsemen Motorcycle Club (IHMC) were the target of blatant profiling and discrimination at the hands of the Daytona Beach PD. The incident, caught on videotape as a result of quick thinking, is irrefutable. The impact on civil liberties motivated the combined efforts of the North Florida Council of Clubs, the National Council of Clubs, and the Motorcycle Profiling Project to immediately respond with a formal complaint and public record requests. These inquiries, based on the video, sparked an investigation into the actions of the officers involved and a review of Daytona PD policies regarding motorcycle clubs, said a source inside of Chief Craig Capri’s office. As a result of the State Attorney’s inquiry, a curriculum was supposed to be constructed and all Daytona PD officers were to be re- trained relating to motorcycle profiling.

Unfortunately, almost 2 years later, motorcycle profiling is alive and well in Daytona Beach. As articulated, motorcycle profiling is still official policy.

A Legislative Solution

Motorcycle profiling is a legitimate national policy discussion. In December, the US Senate unanimously approved S.Res.154 which directs all states to follow the lead of Washington State and Maryland by legislatively addressing and condemning the practice of motorcycle profiling. A prohibition combined with injunctive and actual relief for victims is a simple solution with no fiscal impact. A legislative prohibition would immediately increase exposure to the issue therefore reducing incidents of profiling.

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