USA V. MONGOL NATION, No. 19-50176 (9th Cir. 2023)
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Mongol Nation is an unincorporated association whose members include the official, or “full-patch,” members of the Mongols Gang. A jury convicted the association of substantive RICO and RICO conspiracy violations; it also found various forms of Mongol Nation property forfeitable. That property included the collective membership marks—a type of intellectual property used to designate membership in an association or other organization. The district court denied forfeiture of those marks, holding that the forfeiture would violate the First and Eighth Amendments.
The Ninth Circuit affirmed the district court’s judgment. The court explained that in Mongol Nation’s appeal, it argued for the first time that it is not an indictable “person” under RICO because the indictment alleges that the association was organized for unlawful purposes only. The panel concluded that this unpreserved argument is non-jurisdictional. The panel did not resolve the Government’s contention that Mongol waived it. The panel wrote that regardless of the merits of Mongol Nation’s argument, it mischaracterizes the allegations in the indictment.
On the Government’s cross-appeal of the order denying its second preliminary order of forfeiture, the panel did not need to decide whether forfeiture of the membership marks would violate the First and Eighth Amendments. Nor did the panel reach the question of whether the marks may be forfeitable without the transfer of any goodwill associated with the marks. The panel held that the forfeiture was improper for a different reason—the Government effectively sought an order seizing and extinguishing the Mongols’ right to exclusive use of its marks without the Government itself ever seizing title to the marks.
Court Description: Criminal Law. On Mongol Nation’s appeal of its conviction and sentence for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), and the Government’s cross-appeal from the district court’s order denying forfeiture of certain collective membership marks, the panel affirmed the district court’s judgment. Mongol Nation is an unincorporated association whose members include the official, or “full-patch,” members of the Mongols Gang. A jury convicted the association of substantive RICO and RICO conspiracy violations; it also found various forms of Mongol Nation property forfeitable. That property included the collective membership marks—a type of intellectual property used to designate membership in an association or other organization. The district court denied forfeiture of those marks, holding that the forfeiture would violate the First and Eighth Amendments. In Mongol Nation’s appeal, it argued for the first time that it is not an indictable “person” under RICO because the indictment alleges that the association was organized for unlawful purposes only. The panel concluded that this unpreserved argument is non-jurisdictional. Reviewing for plain error, the panel did not resolve the Government’s contention that Mongol waived it. The panel wrote that regardless of the merits of Mongol Nation’s argument, it UNITED STATES V. MONGOL NATION 3 mischaracterizes the allegations in the indictment. Because the indictment expressly contemplated that the association may exist for other purposes—perhaps including lawful ones—the indictment is not facially inconsistent with Mongol Nation’s interpretation of the definition of “person” in the RICO statute, even if that interpretation is correct. As such, Mongol Nation cannot establish that the district court plainly erred by allowing it to be prosecuted under RICO. On the Government’s cross-appeal of the order denying its second preliminary order of forfeiture, the panel did not need to decide whether forfeiture of the membership marks would violate the First and Eighth Amendments, as the district court held. Nor did the panel reach the question whether the marks may be forfeitable without the transfer of any goodwill associated with the marks, or any other trademark issues. The panel held that the forfeiture was improper for a different reason—the Government effectively sought an order seizing and extinguishing the Mongols’ right to exclusive use of its marks without the Government itself ever seizing title to the marks. Because RICO provides no mechanism for forfeiture without a transfer of title to the Government, the panel held that denial of the preliminary order of forfeiture was warranted on these grounds.
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