govt brief re seizure of trademarks

8/14/2019 Govt Brief Re Seizure of Trademarks

1/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THOMAS P. OBRIENUnited States AttorneyCHRISTINE C. EWELLAssistant United States AttorneyChief, Criminal DivisionSTEVEN R. WELK

California Bar No. 149883Assistant United States AttorneyChief, Asset Forfeiture SectionFRANK D. KORTUMCalifornia Bar No. 110984Assistant United States AttorneyAsset Forfeiture Section

Federal Courthouse, 14 Floorth

312 North Spring StreetLos Angeles, California 90012Telephone: (213) 894-6166/5710Facsimile: (213) 894-7177E-mail: [email protected]

[email protected]

Attorneys for Defendants

UNITED STATES DISTRICT COURT

FORTHE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

RAMON RIVERA, ))

Plaintiff, ))

v. ))

RONNIE A. CARTER, ETC., )ET AL. )

)Defendants. )

))

))))

NO. CV 09-2435 FMC (VBKx)

GOVERNMENTSSUPPLEMENTAL BRIEF INOPPOSITION TO PLAINTIFFSMOTION FOR PRELIMINARYINJUNCTION

[DECLARATIONS OF STEVENR. WELK, DARRINKOZLOWSKI AND CHIEF OF

POLICE DANIEL A. WEASTFILED CONCURRENTLYHEREWITH]

[No hearing]

Case 2:09-cv-02435-FMC-VBK Document 32 Filed 07/06/2009 Page 1 of 30


2/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. MATERIAL FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. The Restraint of the Trademarks Is Authorized By 1963(d).. . . . . . 6

B. 1963(d) Permits the Restraint of Whatever Rights and Interests theOwner of the Restrained Property Enjoys. . . . . . . . . . . . . . . . . . . . . . 9

1. The rights of the holder of the Mongols Registered Marks arewithin the scope of 1963(d)s authority. . . . . . . . . . . . . . . . . 9

2. The Registered Marks are, and have always been treated as,collective membership marks, not service marks. . . . . . . . . . 11

C. Plaintiff Has No Enforceable Individual Rights with Respect to theRegistered Marks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

1. Plaintiff has no Constitutional right to possess propertysubject to a revoked limited license. . . . . . . . . . . . . . . . . . . . . 21

2. The Amended Order is narrowly tailored to avoid FirstAmendment concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

D. Plaintiffs Lack of a Justiciable Claim Triggers the Statutory Bar onIntervention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

i



3/30

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ii

TABLE OF AUTHORITIES

FEDERAL CASES PAGE

Alexander v. United States,509 U.S. 544 (1993).......................................................................................... 7

Aloe Creme Laboratories, Inc. v. American Society for Aesthetic Plastic Surgery,Inc.,

192 U.S.P.Q. 170 (TTAB 1976). .................................................................... 12

American Speech-Language-Hearing Association v. National Hearing Aid Society,224 U.S.P.Q. 798 (TTAB 1984). .................................................................... 13

Bally Total Fitness Holding Corp. v. Faber,29 F. Supp. 2d 1161 (C.D. Cal. 1998). ........................................................... 13

Best Western International v. Patel,523 F. Supp. 2d 979 (D. Ar. 2007). ................................................................ 20

Bosley Medical Institute, Inc. V. Kremer,403 F.3d 672 (9th Cir. 2005). ......................................................................... 13

Brittingham v. Jenkins,914 F.2d 447 (4th Cir. 1990). ........................................................................... 9

Cold Stone Creamery, Inc. v. Scoops Galore, LLC,2006 WL 494808 (E.D. Pa., Feb. 28, 2006). .................................................. 20

Eberhart v. Massell,311 F. Supp. 654 (D. Ga. 1970). ..................................................................... 24

Healy v. James,408 U.S. 169 (1972)........................................................................................ 22

L.L. Bean, Inc. v. Drake Publishers, Inc.,811 F.2d 26 (1st Cir. 1987). ............................................................................ 13

Mattel, Inc. v. MCA Records, Inc.,296 F.3d 894 (9th Cir. 2002). ......................................................................... 13

Moseley v. V Secret Catalogue, Inc.,537 U.S. 418 (2003)........................................................................................ 13

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982)........................................................................................ 22NEC Electric v. CAL Cir. Abco,

810 F.2d 1506 (9th Cir. 1987). ....................................................................... 13

PGA v. Bankers Life & Casualty Co.,514 F.2d 665 (5th Cir. 1975). ......................................................................... 20



4/30

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 iii

Russello v. United States,464 U.S. 16 (1983)............................................................................................ 6

Sovereign Order of Saint John of Jerusalem, Inc. V. Grady,119 F.3d 1236 (6th Cir. 1997). ....................................................................... 20

Ex parte Supreme Shrine of the Order of the White Shrine of Jerusalem,109 U.S.P.Q. 248 (Comm'r Pats. 1956). ......................................................... 14

In re Triangle Club of Princeton University,138 U.S.P.Q. 332 (TTAB 1963). .................................................................... 14

United States v. 3 Parcels in La Plata County, Colo.,919 F. Supp. 1449 (D. Nv. 1995).................................................................... 10

United States v. Anderson,782 F.2d 908 (11th Cir. 1986). ......................................................................... 7

United States v. Angiulo,

897 F.2d 1169 (1st Cir. 1990). .......................................................................... 7United States v. Busher,

817 F.2d 1409 (9th Cir. 1987). ..................................................................... 6, 7

United States v. Cauble,706 F.2d 1322 (5th Cir. 1983). ......................................................................... 7

United States v. Freights, etc. of S.S. Mount Shasta,274 U.S. 466 (1927).......................................................................................... 9

United States v. Gelb,826 F.2d 1175 (2d Cir. 1987). ........................................................................ 10

United States v. Hooper,229 F.3d 818 (9th Cir. 2000). ......................................................................... 24

United States v. Nava,404 F.3d 1119 (9th Cir. 2005). ......................................................................... 7

United States v. Pelullo,178 F.3d 196 (3d Cir. 1999). ............................................................................ 8

United States. v. Porcelli,865 F.2d 1352 (2d Cir. 1989). .......................................................................... 7

United States v. Pryba,900 F.2d 748 (4th Cir. 1990). ................................................................... 23, 24

United States v. Regan,858 F.2d 115 (2d Cir. 1988). ............................................................................ 6



5/30

1

2

3

45

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 iv

United States v. Robel,389 U.S. 258 (1967)........................................................................................ 22

United States v. Spilotro,680 F.2d 612 (9th Cir. 1982). ........................................................................... 8

United States v. Timley,507 F.3D 125 (8th Cir. 2007). ........................................................................ 24

FEDERAL STATUTES AND REGULATIONS

15 U.S.C. 1115(b). ................................................................................................. 9

15 U.S.C. 1127. .................................................................................................... 12

18 U.S.C. 981. ........................................................................................................ 7

18 U.S.C. 982. ........................................................................................................ 7

18 U.S.C. 1962............................................................................................... 4, 8, 9

18 U.S.C. 1963........................................................................................ 6, 9, 10, 11

18 U.S.C. 1963(1)(6). ........................................................................................... 25

18 U.S.C. 1963(a). ............................................................................................. 7, 8

18 U.S.C. 1963(a)(1).............................................................................................. 4

18 U.S.C. 1963(a)(2).......................................................................................... 4, 7

18 U.S.C. 1963(a)(3).............................................................................................. 418 U.S.C. 1963(b). ............................................................................................. 6, 9

18 U.S.C. 1963(c). ................................................................................................. 8

18 U.S.C. 1963(d). ........................................................................................ passim

18 U.S.C. 1963(i). ......................................................................................... passim

21 U.S.C. 853. ........................................................................................................ 7

21 U.S.C. 881. ........................................................................................................ 7

37 C.F.R. 2.44(a).................................................................................................. 14

37 C.F.R. 2.44(b). ................................................................................................ 14

37 C.F.R. 3.71. ..................................................................................................... 12



6/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

This motion arises from the governments efforts to criminally forfeit (in1

Cavazos) two registered trademarks acquired and maintained by the Mongols

outlaw motorcycle gang. On October 22, 2008, the government sight and obtainedan Amended Order Restraining Trademark (the Amended Orded), which

restrained the registered trademark consisting of the word Mongols (the Verbal

Mark or restrained mark). The government also seeks forfeiture of a symbolic

mark consisting of a drawing of a figure riding a motorcycle (the Symbolic

Mark). The marks are referred to collectively herein as the Registered Marks.

1

I.

INTRODUCTION

A few days before the June 22, 2009 hearing on plaintiffs motion for a

preliminary injunction, additional material facts were made known to thegovernment as the result of a filing of a motion in the related criminal case (United

States v. Cavazos, CR 09-1201 FMC). At the hearing, the government offered

additional argument and authority (in response to those presented by plaintiff in

his Reply), particularly on the issues whether (1) the Amended Order was

authorized by 18 U.S.C. 1963(d); and (2) the Amended Order implicated or

imposed upon plaintiffs First Amendment rights.1

Plaintiffs motion should be denied and this action dismissed. Plaintiff

mischaracterizes the nature of the rights and interests at issue, and seeks to apply

provisions of trademark law and principles of Constitutional law that simply do

not apply in the context of the Amended Order or to the governments forfeiture

claims. The Registered Marks and the rights appurtenant to them are intangible

assets (evidenced and manifested by tangible objects bearing them) in which

plaintiff admits he has no ownership interest. The undisputed evidence, including

sworn statements of the former and current National Presidents of the Mongols

and a government agent who infiltrated the gang, demonstrate that plaintiffs

interest in the marks is merely a revocable limited license.



7/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

An unopposed application for entry of a preliminary order of forfeiture2

with respect to the Registered Marks was filed by the government on June 29,

2009. Once that order is entered, the ancillary process (discussed below) will

commence immediately.

2

The holder of the mark (the Mongols) has been shown to be a criminal

RICO enterprise (through guilty pleas entered by numerous defendants in

Cavazos). Admissions have been made that establish the marks were acquired and

maintained during the course and in furtherance of the criminal RICO enterprise,and that the marks afforded a source of influence over the enterprise. These pleas

not only establish probable cause to believe that the marks are subject to restraint,

but that they are subject to forfeiture to the United States.2

Principles of trademark law are relevant to the determination of this motion

only to the extent that they define the rights and privileges appurtenant to the

Registered Marks. Both are collective membership marks, which allow the holder

to exercise an extraordinary degree of control over their possession, use and

display. The Mongols have always treated the Registered Marks as collective

membership marks, allowing their use, display and possession only by gang

members and subject to a limited license which can be revoked at any time for any

reason. Plaintiffs rights in the Registered Marks are defined entirely by the

license by which he obtained the marks in the first place, and the government, as

the current holder of the marks by virtue of the Amended Order, has the same

rights as the owner, meaning that the government has the right to revoke the

limited license and recover the marks in order to preserve them for forfeiture.

Neither the Amended Order nor the government purport to prevent plaintiff

from being a Mongol or telling people that he is a Mongol. The order is narrowly

drawn to include only the Registered Marks, and does not include numerous other

words and symbols which the Mongols purport to own but have not registered.



8/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Incidentally, any claim by plaintiff that the Amended Order is having a3

chilling effect on his purported right to express himself is groundless. There is

compelling evidence that plaintiff is willfully disobeying the Amended Order by

publicly wearing the restrained mark. See Welk Decl., exhibit L.

3

However, 18 U.S.C. 1963(d) and the Amended Order prohibit plaintiff from

advertising his membership in this notorious criminal organization through the

use, display and possession of property that (1) is subject to forfeiture to the

United States; (2) he admits he does not own; and (3) he no longer has a license topossess. Finally, 1963(i) bars plaintiffs motion and action. A third partys3

(i.e., non-defendants) sole remedy with respect to the restraint and forfeiture of

property subject to criminal forfeiture is the ancillary process that follows the

entry of a forfeiture order. However, because he has no colorable legal claim to

the marks, plaintiff will be incapable of stating a claim in the ancillary process.

Cavazos is not a trademark case; it is a RICO prosecution in which the

government is seeking the forfeiture of intangible rights, interests and privileges

that are forfeitable because of their involvement in and use by a criminal RICO

enterprise. The government does not seek a trademark remedy, and there is no

need to graft such remedies onto the RICO criminal forfeiture scheme. The

Amended Order was properly entered and is appropriately narrow in scope. The

nature and use of the Mongols Registered Marks is such that individual members

of the Mongols gang have neither individual ownership rights nor a Constitutional

right to use, display or possess the marks. For all of these reasons, plaintiffs

motion should be denied and his complaint dismissed.

II.

MATERIAL FACTS

The indictment in Cavazos was filed on October 9, 2008, charging

numerous members of the Mongols oulaw motorcycle gang with federal RICO and



9/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4

drug violations. See Cavazos Indictment. Between 2005 and October 2008,

several Special Agents of the Bureau of Alcohol, Tobacco, Firearms & Explosives

(ATF) infiltrated the gang, ultimately becoming full members. See Kozlowski

Decl. Count One of the Indictment charges violation of 18 U.S.C. 1962 (RICO),and describes the creation, operation and maintenance of the criminal enterprise

that included the Mongols motorcycle gang. Indictment at 1-79. In Count Eighty-

Five, the government expressed its intention to seek the criminal forfeiture of any

property or interest in property acquired and maintained in violation of 18 U.S.C.

1962, pursuant to 18 U.S.C. 1963(a)(1); any interest in, security of, claims

against, and property and contractual rights that afford a source of influence over

the Mongols criminal enterprise in violation of 18 U.S.C. 1962, pursuant to 18

U.S.C. 1963 (a)(2); and any property constituting or derived from proceeds

obtained, directly and indirectly, from racketeering activity in violation of 18

U.S.C. 1962, pursuant to 18 U.S.C. 1963 (a)(3). See Indictment at 172.

Among the specific property named in the forfeiture count was the

registered trademark of the word Mongols, identified by Registration No.

2916965 by the United States Patent and Trademark Office (USPTO) (the

Verbal Mark). Id. at 173. On November 5, 2008, the government filed a Bill of

Particulars in which it provided notice to the defendants that it also would seek the

forfeiture of the registered mark consisting of the symbol or drawing identified by

Registration No. 3076731 by the USPTO (the Symbolic Mark). See Welk Decl.,

exhibit I.

Registration of the Registered Marks was accomplished by Ruben Cavazos,the lead defendant in Cavazos, who has since pled guilty to Count One of the

Indictment. Cavazos registered the marks as the National President of Mongol

Nation, an unincorporated association, in 2003 (Verbal Mark) and 2005 (Symbolic



10/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 5

Mark). See Welk Decl., exhibits A, B, D and F. The Registered Marks remained

the property of Mongol Nation, and under the control of its National President

(Cavazos), until April 3, 2008, when they were assigned by Cavazos (acting on

behalf of Mongol Nation) to Shotgun Productions, LLC, a California limitedliability corporation, which was also controlled by Cavazos. See Welk Decl.,

exhibit C. On October 14, 2008, Shotgun Productions assigned its entire interest

in both marks back to Mongol Nation. Welk Decl., exhibits B and F. At that time,

Mongol Nation was again acting through its National President, who was then

Hector Gonzalez, another defendant in Cavazos. Welk Decl., exhibit D.

On October 22, 2008, this Court entered the Amended Order pursuant to 18

U.S.C. 1963(d), which requires the defendants . . . and any of their agents,

servants, employees, family members, and those persons in active concert or

participation with them to surrender for seizure all products, clothing, vehicles,

motorcycles, books, posters, merchandise, stationery, or other materials bearing

the Mongols trademark, upon presentation of [the Amended] Order. Welk Decl.,

exhibit H. The Amended Order also prohibits the transfer or assignment of the

restrained mark by any of the above-listed persons.

On or about December 17, 2008, Mongols Nation Motorcycle Club, Inc.

(Mongols, Inc.) was formed. See Welk Decl., exhibit G. According to the

Statement of Information filed with the California Secretary of State on March 5,

2009, the Chief Executive Officer of Mongols, Inc. is Martin Guevara. Id.

According to a declaration of Guevara filed in Cavazos (Welk Decl., exhibit K),

Guevara is the National President of Mongols, Inc. and the Mongols, and has beensince 2009. Id. at 1. On January 22, 2009, (one month before plaintiff filed



11/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

See Welk Decl., exhibits B, D and J. The assignment was a knowing4

violation of the Amended Order. See Mongol, Inc. Motion of June 16, 2009 (filed

in Cavazos) at 14, n.8 (such assignment is . . . a violation of the Courts Order.).

See United States v. Regan, 858 F.2d 115, 120 (2d Cir. 1988)(order5

restraining an unindicted third party is proper if necessary to preserve potentially

forfeitable property).

6

the instant action and motion), Mongol Nation assigned the Registered Marks to

Mongols, Inc.4

III.

ARGUMENTA. The Restraint of the Trademarks Is Authorized By 1963(d)

The forfeiture of the Registered Marks is sought pursuant to 18 U.S.C.

1963, the criminal forfeiture component of the federal RICO statute. Just as the

substantive RICO law is expansive in its scope and effect, the RICO forfeiture

provisions are broader and reach further than virtually any other statutory

forfeiture scheme in the United States Code. The Ninth Circuit has said that the

forfeiture provision of 1963 are purposely broad . . .[,] designed to totally

separate a racketeer from the enterprise he operates. United States v. Busher, 817

F.2d 1409, 1413 (9 Cir. 1987). The Supreme Court has said that the purpose ofth

RICO was to provide new weapons ofunprecedented scope for an assault upon

organized crime and its economic roots. Russello v. United States, 464 U.S. 16,

26 (1983) (emphasis added).

That unprecedented scope is evident in the terms of the statute and the

property interests it reaches, which includes tangible and intangible personal

property, including rights, privileges, interests, claims, and securities. 18 U.S.C.

1963(b). It provides for the restraint and forfeiture of property rights of third

parties ; restraint not only of proceeds of the RICO offense, but of property which5



12/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

United States. v. Porcelli, 865 F.2d 1352, 1364-65 (2d Cir. 1989) (In6

addition to forfeiting the RICO enterprise, the convicted racketeer must forfeit

certain property interests outside the RICO enterprise[, including] an interest

acquired or maintained through a pattern of racketeering activity.

See, e.g., Busher, 817 F.2d 1409 (9th Cir. 1987); United States v.7

Anderson, 782 F.2d 908 (11th Cir. 1986); United States v. Cauble, 706 F.2d 1322,

1349 (5th Cir. 1983).

7

affords a source of influence over the RICO enterprise (18 U.S.C. 1963(a)(2))

and property outside the enterpise ; and restraint and forfeiture of property that is6

not directly tainted by the underlying predicate acts. These categories of7

forfeitable property go well beyond the types of interests subject to forfeitureunder the more commonly-used forfeiture statutes (e.g., 18 U.S.C. 981 and 982;

21 U.S.C. 853 and 881), such as property representing proceeds of the

underlying illegal activity, property used to facilitate the underlying activity, and

property involved in money laundering.

Where property is determined to be within the scope of 1963(a), forfeiture

is mandatory. Alexander v. United States, 509 U.S. 544, 562 (1993) (a RICO

conviction subjects the violator [to] . . . mandatory forfeiture under 1963");

United States v. Nava, 404 F.3d 1119, 1124 (9 Cir. 2005); United States v.th

Angiulo, 897 F.2d 1169, 1211 (1 Cir. 1990) (any interests in an enterprise,st

including the enterprise itself, are subject to forfeiture in their entirety). It

includes forfeiture of property that has been transferred to third parties after the

commission of the acts giving rise to the forfeiture under the relation back

doctrine:

All right, title, and interest in [forfeitable property] vests in the UnitedStates upon the commission of the act giving rise to forfeiture . . . . Anysuch property that is subsequently transferred to a third person other thanthe defendant may be the subject of a special verdict of forfeiture andthereafter shall be ordered forfeited to the United States . . . .



13/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

For example, in the redacted plea agreement attached to the Supplemental8

Welk Decl. in Support of Governments Opposition to Motion for Preliminary

8

18 U.S.C. 1963(c); United States v. Pelullo, 178 F.3d 196, 201 (3d Cir. 1999)

(the defendant's interest in property forfeited under 1963(a) is divested at the

time the racketeering activity upon which the conviction is predicated occurs. [It]

is vested in the government nunc pro tunc at the time at which the criminal activityoccurred.).

To obtain a post-indictment restraining order under 1963(d) (such as the

Amended Order), the government need only demonstrate probable cause to believe

that: (1) it is likely to obtain a conviction against one or more defendants charged

with a violation of 1962; and (2) the property to be restrained is subject to

forfeiture if the defendants are convicted. United States v. Spilotro, 680 F.2d 612,

618 (9 Cir. 1982). It is difficult to conceive how one could conclude that thisth

standard has not been satisfied here. The Court has accepted numerous guilty

pleas to Count One of the Indictment (thereby establishing the existence of the

RICO enterprise), and Ruben Cavazos, the long-time National President of the

Mongols, admitted as part of his plea that he acquired the Registered Marks as part

of and for the purpose of promoting the RICO enterprise (establishing the

forfeitability of the marks). The government argued in October 2008 that the

allegations of the Indictment and the sworn declaration of the lead case agent filed

in support of the original application for restraint established both of the required

elements, and the Court obviously (and properly) agreed, since it issued the

Amended Order.

Applying the same standard now, in light of the numerous guilty pleas and

admissions made by the defendants who have pled, the court has far moreevidence to consider. RICO was enacted to empower the government to reach8



14/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Injunction (filed June 16, 2009), a leader of the Mongols pled guilty to Count One

and specifically admitted that the Registered Marks were used to identify

members and intimidate rivals, as well as law enforcement and the public. Hefurther admitted that they were used by members of the organization during and

in furtherance of the offenses of the organization. These admissions alone are

more than sufficient to establish forfeitability, much less probable cause to believe

that the marks provided a source of influence over the organization, and/or were

acquired or maintained in violation of 1962.

9

criminal organizations (and their assets) that could not be reached through then-

existing laws. The extraordinary remedies provided in 1963 are intended to

dismantle criminal enterprises and prevent them from continuing to operate. The

Amended Order properly restrains a valuable asset that the Mongols enterpriseused to further its own criminal goals.

B. 1963(d) Permits the Restraint of Whatever Rights and Intereststhe Owner of the Restrained Property Enjoys

1. The rights of the holder of the Mongols Registered Marks arewithin the scope of 1963(d)s authority

It cannot reasonably be disputed that trademark rights are within the scope

of the rights, privileges and interests subject to seizure and forfeiture under

1963(b). The purpose of a registered trademark is to provide a vehicle by which

the holder of the mark may enforce its legal rights, including the right to restrict

certain uses of the mark by others. 15 U.S.C. 1115(b); Brittingham v. Jenkins,

914 F.2d 447, 453 (4 Cir. 1990). The degree of control the holder may exerciseth

over the mark is determined mostly by the nature of the mark and the manner in

which it is used by the holder, as discussed in some detail below, and whatever

rights, privileges and interests the holder has in a registered mark are subject to

restraint and seizure. 18 U.S.C. 1963(b) and (d); United States v. Freights, etc.

of S.S. Mount Shasta, 274 U.S. 466, 470 (1927) (By the general logic of the law a

debt may be treated as a res as easily as a ship. It is true that it is not tangible, but



15/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The statutory ban on intervention, found at 1963(i), and its application9

to plaintiffs action and motion, is discussed below.

Plaintiff claims no ownership interest in the Registered Marks, a point10

conceded in his complaint (at 18), in his moving papers (Rivera Declaration in

Support of Motion at 3), and by his attorney at the June 22, 2009 hearing.

While Mongols, Inc. has admitted in a filing in Cavazos that the11

assignment of the Verbal Mark was a violation of the Amended Order, the

government contends that the assignment, while voidable, is not necessarily void.

For reasons not relevant to the determination of plaintiffs motion here, the

government likely will not seek to undo the transfer of the marks to Mongols, Inc.,

despite the clear violation of the Amended Order.

10

it is a right of the creditors, capable of being attached and appropriated by the law

. . . .); United States v. 3 Parcels in La Plata County, Colo., 919 F. Supp. 1449,

1453 (D. Nv. 1995) (Mere intangibility of an asset . . . does not preclude its

seizure).The restraint authority of 1963(d), like the forfeiture authority of 1963

generally, is extremely broad, in keeping with the goal of the RICO law. See

United States v. Gelb, 826 F.2d 1175, 1176 (2d Cir. 1987) (The initial ex parte

order will ordinarily be very broad and subsequent fine-tuning may be necessary . .

. upon a motion by the defendants) (emphasis added). The right to challenge the

restraint is limited, both in terms of scope and timing and, as indicated by the

emphasized language in the excerpt above, in terms of who is entitled to present a

challenge. Id. (A post-indictment restraining order based on RICO's forfeiture

provisions may issue with a minimum of process [and] Congress appears to have

provided no durational limitation to its reach short of the termination of the related

criminal prosecution).9

Finally, the ownership of the Registered Marks is not in dispute, at least as

between the parties here. The marks are currently the property of Mongols, Inc.10 11



16/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 11

2. The Registered Marks are, and have always been treated as,collective membership marks, not service marks

The essence of seizure or restraint is that it gives the government possession

and control over the property seized or restrained. This is a simple matter when it

comes to tangible property, because the government actually takes possession of

the item, denying the owner access to the property. However, with intangible

property, such as a trademark or a debt, what the government gets is controlof the

property. Thus, if the government seizes or restrains a securities account, the

owner of the account is barred from conducting trades; if the government seizes or

restrains a persons rights under a promissory note, the government assumes the

owners right to collect payments due under the note. Mt. Shasta, supra.

Plaintiff has gone to great lengths in his briefing to try to turn this case into

a trademark case, but while trademark law is not entirely inapplicable to the

determination of plaintiffs motion, its application is very limited. Section 1963

contains no reference to trademark law; the government is not required to allege or

prove a violation of trademark law in order to forfeit the Registered Marks; and

the remedies sought by the government (both in terms of the initial restraint and

the ultimate forfeiture) are not trademark remedies (either directly or by

incorporation). Principles of trademark law are relevant here only to the extent

that they define the rights, privileges and interests attached to the Registered

Marks, because that defines the scope of the governments restraint and seizure

authority, and its ultimate forfeiture.

The entry of the Amended Order was the functional equivalent of an

assignment of the restrained mark to the government, granting it control over the

mark. It gave the government the right to prosecute the mark to the same extent as

the holder of the mark, and properly restrained the rights of the holder (whether



17/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

See 37 C.F.R. 3.71. The assignee of a registered trademark . . . is12

entitled to conduct the prosecution of the trademark . . . registration to the

exclusion of the original applicant or previous assignee.

12

Mongol Nation or Mongols, Inc.), to the exclusion of the holder. Trademarks are12

characterized by terms of art. A service mark is any word, name, symbol, or

device, or any combination thereof (1) used by a person, or (2) which a person

has a bona fide intention to use in commerce . . ., to identify and distinguish theservices of one person, including a unique service, from the services of others and

to indicate the source of the services, even if that source is unknown. 15 U.S.C.

1127 (emphasis added). The activities recited in the identification must

constitute services as contemplated by the Trademark Act.

A collective mark is a trademark or service mark (1) used by the

members of a cooperative, an association, or other collective group or

organization, or (2) which such cooperative, association, or other collective group

or organization has a bona fide intention to use in commerce . . ., and includes

marks indicating membership in a union, an association or other organization. 15

U.S.C. 1127. A collective service mark is a mark adopted by a collective

(i.e., an association, union, cooperative, fraternal organization, or other organized

collective group) for use only by its members, who in turn use the mark to identify

their goods or services and distinguish them from those of nonmembers. Aloe

Creme Laboratories, Inc. v. American Society for Aesthetic Plastic Surgery, Inc.,

192 USPQ 170, 173 (TTAB 1976) (emphasis added). A collective membership

mark is

a mark adopted for the purpose of indicating membership in anorganized collective group, such as a union, an association, or otherorganization. Neither the collective nor its members uses thecollective membership mark to identify and distinguish goods or

services; rather, the sole function of such a mark is to indicate that the



18/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The final category is a certification mark, which certifies13

characteristics or features of goods or services. SeeAmerican Speech-Language-

Hearing Association v. National Hearing Aid Society, 224 USPQ 798, 806-808

(TTAB 1984).

See, e.g., Bosley Medical Institute, Inc. V. Kremer, 403 F.3d 672, 67514

(9 Cir. 2005) (involving mark as to which plaintiff has spent millions of dollarsth

on advertising and promotion throughout the United States and the rest of the

world); Bally Total Fitness Holding Corp. v. Faber, 29 F.Supp.2d 1161 (C.D.

Cal. 1998) (service mark used on products distributed to public); L.L. Bean, Inc. v.

Drake Publishers, Inc., 811 F.2d 26 (1 Cir. 1987) (service mark used on goods);st

Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (service mark); NEC

Elec. v. CAL Cir. Abco, 810 F.2d 1506 (9 Cir. 1987) (service mark on goods);th

Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9 Cir. 2002) (service mark onth

goods).

As shown by exhibit A to the Welk Declaration, Ruben Cavazoss15

original application for the restrained mark was explicitly for a collective

membership mark. In fact, the application was originally rejected by the PTO

because it did not contain an identification of goods or services. The Mongols

lawyer re-submitted the application, stating of course there was no identification

13

person displaying the mark is a member of the organized collectivegroup.

Id. (emphasis added).13

Registration of any of these types of marks gives the holder the right to

control the use and display of the mark, in varying degrees. The cases relied upon

by the plaintiff, and by the court in its tentative decision, involve service marks or

collective service marks, meaning that the marks at issue were placed on items

which in turn were placed into the stream of public commerce or were used in

public commerce. As plaintiff himself admitted in his Reply, the Registered14

Marks are neither service marks nor collective service marks, but collective

membership marks. See Plaintiffs Reply Brief in Support of Motion for

Preliminary Injunction at 4 n.4. The nature of the marks (and their use) makes a15



19/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

of goods and/or services because the application was to register a collective

membership mark. Welk Decl., exhibit A.

14

substantive difference in defining (1) the rights of the holderand (2) whether,

when and by whom the Amended Order is subject to challenge.

Collective membership marks do not involve the production or distribution

of goods or the provision of services. They are not trademarks in the ordinarysense; they are not used in business or trade, and they do not indicate commercial

origin of goods or services. Thus, the law relating to confusion of potential

customers, or confusion concerning the source of goods, does not apply.

Registration of collective membership marks fills the need of collective

organizations (such as outlaw motorcycle gangs) who do not wish to use the

symbols of their organizations on goods or services distributed to the public, but

do wish to protect their marks and prevent their use by others. SeeEx parte

Supreme Shrine of the Order of the White Shrine of Jerusalem, 109 USPQ 248

(Commr Pats. 1956). That is what the Mongols obtained and that is precisely

what they sought to do. The holder of a collective membership mark exercises

total control over its use; and because the sole purpose of a membership mark is to

indicate membership, use of the mark is restricted to members of the collective.

See In re Triangle Club of Princeton University, 138 USPQ 332 (TTAB 1963).

An applicant for a collective membership mark must specify the class of

persons entitled to use the mark, indicating their relationship to the applicant and

the nature of the applicants control over the use of the mark. See 37 C.F.R.

2.44(a) and (b). Cavazos did that here in the application for the Verbal Mark,

specifying that

the [Mongols gang] controls the use of the mark by members in thefollowing manner: an application for membership in the organization,following completion of all requirements for initiation andmembership, receives the membership patch. In accordance with the



20/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 15

bylaws of the association, th membership patch can only be worn by amember and only if the member is in good standing. Any breach ofthe rules of the association requires that the membership patch bereturned and membership in the association be cancelled.

Welk Decl., exhibit A (emphasis added). Guevara, the current National President

of Mongols, Inc. and the Mongols gang, confirms in his declaration that the

controls described by Cavazos remain in place today. Guevara states that the

Club is the sole owner of the Marks (Guevara Decl. at 6) and that:

The Club grants its members a limited license to use the Marks (andsimilar variations of the Marks) by wearing them on clothing itemsand displaying them on other items of personal property, includingvests and motorcycles . . . .

* * *

Individual members of the Club do not own any rights in the Marks(or the registration of the Marks) other than their limited licenserights.

* * *

The limited license granted to the Clubs members prohibits wearingor displaying personal items bearing any of the Clubs marks, andrequires return of any removable items bearing the Clubs marks(patches, stickers, etc.) once any member is not in good standingwith the Club. . . . All Club members are required to agree to theseterms as part of their membership and limited license.

Guevara Declaration at 8, 9 and 10 (emphasis added).

In truth, however, the restrictions imposed by the Mongols on their marks

are even more extreme. SA Darrin Kozlowski was one of the ATF undercover

agents who infiltrated the Mongols, ultimately becoming a full patched member.

See Kozlowski Decl., 1-2. SA Kozwolski describes in his declaration the

process by which items bearing the Registered Marks are issued and, more

importantly, the circumstances under which they can be (and are) taken back.

The [three back patches, including the Verbal Mark (top rocker) andSymbolic Mark (middle patch)] are provided to Mongols members bythe gang and generally sewn onto a members vest.



21/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Id. at 4-7.16

Id. at 13-15, 17.17

Id. at 18.18

16

By accepting the Mongols patches, a member understands that he isaccepting the danger and risk associated with the wearing of those

patches on behalf of the Mongols. It is continually ingrained in everymember of the Mongols by the gang leadership that the patches areonly worn by members who earn them, and they, along with the

patches, will be respected by all at all times.

Since the formation of the Mongols in 1969 in Montebello, CA, theMongols patches have been regarded by the leaders and members ofthe gang as property belonging to the gang, not the individuals who

bear it. 16

* * *

There are four basic degrees of Mongols membership status: hangaround; prospect; probationary; and full patch. Each degreeof status entitles the member or prospective member to certain

privileges, and the patches play an important role in each step.

A hang around is a male . . . who shows interest in being aroundmembers of the Mongols. . . . Hang arounds do not receive any gangpatches.

When an individual first becomes a prospect, he is given the bottomrocker patch, a small rectangular front patch of the wordPROSPECT, and a small rectangular Chapter tab patch indicatingthe chapter which the prospective member seeks to join (e.g., LosAngeles, Hollywood, etc.). None of these patches contain registeredmarks . . . .

An individual who becomes a prospect has as his ultimate goalbecoming a full patched member of the Mongols. The prospect willdo whatever it takes, including a wide variety of illegal activities, toreach that goal.17

* * *

After a period of time in the prospect phase [which varies], theprospect member will receive his center patch (bearing the symbolicmark).18

* * *



22/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Id. at 20.19

Id. at 22.20

Id. at 25.21

Id. at 30.22

17

If at any time a prospect member is not measuring up to the standardsof the Mongols, he can be removed and his patch revoked by theMongols.19

* * *

A probationary member receives all three back patches (bottomrocker, center patch [symbolic mark], and top rocker [verbal mark])from the outset. However, he must also wear a probationary patch(a small, diamond-shaped patch with a black P against a white

background)[,] . . . which sets him apart from a full patch member. 20

* * *

Once a prospect member completes the prospect phase, he will begiven his top rocker patch depicting the verbal mark Mongols,making him a full patched member of the Mongols. As a full

patched member, the individual has knowingly agreed to defend theMongols and his patches, to the death if necessary.21

* * *

A full patched member of the Mongols expects, commands, anddemands respect from members of the public and rival gang members.Anyone who is not a patched member of the Mongols who shows,verbalizes or displays any sign of disrespect towards a Mongol willmost likely suffer physical harm, up to and including being killed. . .. . To members of the Mongols, a Mongols member is NEVER wrong.Failure to defend and support an offended member can result in thenon-supportive Mongol being demoted to a prospect (which includesrevocation of the top rocker patch), being removed from the gang(which includes revocation of all patches), and being subjected to

physical assaults administered by other Mongols.22

* * *

If, at any point after becoming a full patched member of the Mongols,a member fails to perform to the standards of the gang, his chapter orthe Mother Chapter, he will be declared a disciplinary prospect.This involves revocation of either the top rocker (verbal mark) or

both top rocker and center patch (symbolic mark), demoting the



23/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Id. at 32.23

Id. at 33-35.24

Even if the Registered Marks were registered as service marks or25

collective service marks, the overwhelming evidence shows that they were never

used as or considered to be anything other than collective membership marks by

the Mongols.

18

Mongol member back to prospect status. Once a member is demotedto prospect status, he is once again required to perform as a prospectuntil the members chapter and Mother Chapter agree he is deservingof having his patch(es) returned to him. All patches revoked from aMongols member are maintained by the Mongols Mother Chapter.23

* * *The Mongols retain control and ownership of all patches issued to itsmembers. The patches are ordered through the Mother Chapter anddistributed to individual chapters.

No member has control or ownership of a Mongols patch (specificallyincluding any patch bearing a Mongols registered mark). Nor is anymember allowed to replicate or manufacture a Mongols patch on theirown accord.

Once a member is no longer a member of the Mongols, and has eitherresigned or been kicked out in bad standing, his patches and other

items depicting the verbal mark Mongols or the Mongols symbolicmark must be turned in immediately. Failure to do so will result inmembers of the Mongols forcibly collecting said items. In someinstances, removed members with Mongol tattoos have been requiredto cover the tattoos or have them forcibly removed.24

The Kozlowski Declaration, the original Cavazos declaration in support of

the registration application for the Verbal Mark (Welk Decl., ex. A), the Guevara

declaration, and plaintiffs own admissions concerning his lack of any ownership

interest in the marks, conclusively establishes that the Mongols treated the

Registered Marks only as collective membership marks. The gang, as the holder25

of the marks and grantor of a limited license to its members, controlled not only

the use and display of the marks by Mongols members, but the possession of the

marks by prospective, current and former members. Critically, the Mongols



24/30


25/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 20

The right to enjoin the unauthorized use of collective marks, including

collective service marks (which are entitled to less protection than collective

membership marks because they are actively used in public commerce), is well-

established. See, e.g., Best Western Intl v. Patel, 523 F.Supp.2d 979 (D. Ar.2007) (revocation of license to use collective membership marks justifies

injunction against use and display of marks because continued use and display

misrepresents authorized affiliation); Sovereign Order of Saint John of Jerusalem,

Inc. V. Grady, 119 F.3d 1236 (6 Cir. 1997) (affirming portion of an injunctionth

barring use and display of a registered collective membership mark by a member

of the organization whose license to use and display the mark had been rescinded);

PGA v. Bankers Life & Casualty Co., 514 F.2d 665 (5 Cir. 1975) (revocation of ath

license to use a collective service mark justified an injunction against the former

licensee in connection with further use and display which implied affiliation;

licensees right to the mark ends upon termination of the licensing agreement); and

Cold Stone Creamery, Inc. v. Scoops Galore, LLC, 2006 WL 494808 at *2 (E.D.

Pa., Feb. 28, 2006) (revocation of license to use collective service mark justifies

injunction barring use and display and requiring return of materials provided

pursuant to license).

Since collective membership marks, by their very nature, do not involve

goods or services, the cases discussing commercial infringement and confusingly

similar marks do not apply. If the government cannot restrain the possession of

the Registered Marks by Mongols members and associates through court-ordered

seizure, when the holder of the marks has the unfettered right to demand the returnof those very items, the restraint authority of 1963(d) is rendered illusory.



26/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The Amended Order merely allows enforcement of the property rights28

guaranteed by the registration of the marks; it does not affect any First

Amendment rights. A former police officer cannot continue to use and display an

official badge even if he strongly believes in law and order and is an enthusiastic

supporter of the issuing department. His right to possess and use that badge are

defined entirely by the licensor. Likewise, plaintiffs purported deep feelings for

21

C. Plaintiff Has No Enforceable Individual Rights with Respect tothe Registered Marks

Turning to plaintiffs claim, the real question before the Court is what legal

right(s) he has with respect to the Registered Marks or, more particularly, what

right(s) does he have that are affected by the narrowly-drawn Amended Owner?

He claims no ownership interest, and any claim of an individualized possessory

interest is defeated by the overwhelming evidence that his possession of the marks

is subject to a revocable limited license. He is left with the argument that the

Amended Order imposes an improper restraint on a Constitutionally-protected

right.

1. Plaintiff has no Constitutional right to possess property subjectto a revoked limited license

Plaintiffs claim boils down to an argument that he has a First Amendment

right to use the property of another to trumpet to the world his membership in a

notorious criminal RICO enterprise. There is no such right. For the same reason

that a police officer who no longer has a license to carry a badge is barred from

carrying it (and must return it), plaintiff is barred by the Amended Order from

using, displaying or possessing items bearing the restrained mark. That does not

mean that he is restrained or prohibited from telling others that he is a member of

the Mongols - the Amended Oder does not purport to limit his right to do so - it

simply means that he does not have an individual right to use or possess the

property of the criminal enterprise.28



27/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the belief system of the Mongols (whatever that belief system may be) does not

cause a Constitutional right to arise in his favor with respect to the Registered

Mark, which he admits he does not own.

See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (injunction29

of boycott and picketing); Healy v. James, 408 U.S. 169 (1972) (denial of

recognition as a campus organization by public college); United States v. Robel,

389 U.S. 258 (1967) (denial of employment based on membership in a Communist

organization).

Plaintiffs Constitutional claims, like his trademark arguments, are a30

feint, intended to pull attention away from the true nature of the Registered Marks

and his lack of any legally cognizable claim with respect to the marks. Plaintiff

beckon[s] [the Court] into a thicket of constitutional claims, asserting prior

restraint [and] the chilling of free expression . . . . [W]e decline this invitation.

22

This is neither innuendo nor guilt by association, as plaintiff claims in

his Reply brief. Plaintiffs Reply at 8. The government need neither allege nor

prove that plaintiff has committed any crime because the authority to restrain the

Registered Marks flows from the rights of the holder of the marks which issuedthe revocable limited license. The fact that the Mongols is an organization built

on murder, drug trafficking and terrorizing the public is somewhat secondary here

- this is about forfeitable property, and plaintiffs license to possess the Registered

Marks has been revoked. None of the cases relied upon by plaintiff in support of

his guilt by association claim involve property rights, much less restraint of

registered marks subject to a revocable limited license.29

Nor can plaintiff credibly claim that the Amended Order is having a chilling

effect on his ability to express himself. On June 18, 2009 (two days before the

hearing on plaintiffs motion), plaintiff was photographed by a San Diego

Sheriffs Department Deputy riding his motorcycle in San Diego County while

wearing a shirt bearing the restrained mark. See Welk Decl., exhibit L.30



28/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Such an exercise is not necessary to resolve this case. United States v. Pryba,

900 F.2d 748, 756 (4 Cir. 1990). The same is true here.th

23

2. The Amended Order is narrowly tailored to avoid FirstAmendment concerns

Also critical here is that both the forfeiture allegation in the Indictment and

the Amended Order are limited to the property rights and interests represented by

the Registered Marks. The government did not ask to prevent, and the Amended

Order does not restrain, Mongols members from displaying the numerous non-

trademarked words and images that they use to identify themselves as Mongols.

As explained in the Kozlowski Declaration, the Mongols issue their members a

wide array of patches and insignia that the members wear on their vests, most of

which are not registered marks and do not incorporate the Registered Marks. See

Kozlowski Decl. at 38-39. While the Mongols consider and treat those words

and symbols as their property as well, since they have not registered them as

trademarks, their legal ability to prevent others from using the marks is less certain

than with respect to the Registered Marks. Thus, the Amended Order is narrowly

tailored to apply only to those marks as to which the Mongols chose to seek

formal legal protection.

D. Plaintiffs Lack of a Justiciable Claim Triggers the Statutory Baron Intervention

Section 1963(i) specifically bars the bringing of a motion or filing of a

separate action to challenge the seizure or restraint of property sought for

forfeiture during the pendency of the criminal action. The reasons for this

provision are amply demonstrated here. Because this is an on-going prosecution

in which many defendants have entered guilty pleas (to the RICO count in

particular), the government and the court are aware of extensive admissions bycharged defendants concerning the allegations of the Indictment and the forfeiture.



29/30

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 24

However, because many of those plea agreements are under seal, the governments

hands are tied when it comes to revealing the overwhelming evidence establishing

not only the existence and extent of the RICO enterprise, but the uncontested and

dispositive evidence demonstrating that the marks at issue here are subject toforfeiture.

Section 1963(i) eliminates the tactical advantage that would otherwise be

enjoyed by unindicted co-conspirators and non-charged members of the RICO

enterprise by prohibiting them from intervening in the criminal case (as Mongols,

Inc. is attempting to do) or attacking restraining orders in a separate action, as

plaintiff seeks to do here. To this point, plaintiff has avoided the bar on

intervention by characterizing the Amended Order as a prior restraint on his

Constitutional right to free speech, and he has forced the government to address

the merits of his claim while it simultaneously prosecutes a complex criminal

RICO case - exactly the situation Congress sought to prevent in enacting

1963(i). The time has come to take a hard look at exactly what plaintiffs claim

is. The First Amendment is not a shield to criminal prosecution (United States v.

Pryba, 900 F.3d 748, 755 (4 Cir. 1990)), and it cannot be used to an excuse forth

criminal conduct. Eberhart v. Massell, 311 F.Supp. 654, 658 (D. Ga. 1970).

The government filed an unopposed application for a preliminary order of

forfeiture with respect to the Registered Marks on June 29, 2008. Once that order

is entered, the ancillary process will commence, and non-defendant third parties

will have an opportunity to contest the governments right to forfeit the Registered

Marks. But plaintiff will be unable to participate in that process because he has nocolorable claim. The only grounds upon which a third party can prevail in an

ancillary proceeding are those set forth in the statute under which forfeiture is

sought. United States v. Hooper, 229 F.3d 818 (9 Cir. 2000); United States v.th



30/30


govt brief re seizure of trademarks

Documents