United States v. Mongol Nation (370 F. Supp. 3d 1090, 2019)

DAVID O. CARTER, UNITED STATES DISTRICT JUDGE

Before the Court is the Government's Motion for Preliminary Order of Forfeiture Against Defendant Mongol Nation ("Mot. for POF") (Dkt. 354) and the Mongol Nation's post-trial motions. The Court heard oral arguments on February 28, 2019.

On December 13, 2018, the jury returned a verdict finding the Defendant Mongol Nation, an unincorporated association, guilty of (1) substantive RICO; and (2) RICO conspiracy. See Dkt. 320. The guilty verdict triggered the forfeiture phase of trial. On January 11, 2019, the jury returned a Special Verdict finding certain property to be subject to criminal forfeiture, including the rights associated with and appurtenant to collective membership marks and specific items of personal property bearing the marks. See Dkt. 353. The jury also found forfeitable ammunition, body armor, and firearms entered into evidence. The Special Verdict capped months of trial and ripened legal challenges to the Government's requested criminal forfeiture. See Thomas v. Anchorage Equal Rights Comm'n , 220 F.3d 1134, 1138 (9th Cir. 2000).

The Mongol Nation and its members display specific words and images on leather vests, flags, bandanas, belt buckles, and other property. Some of these words and images are registered with the United States Patent and Trademark Office as a type of trademark called a "collective membership mark." For example, one of the Mongol Nation's registered collective membership marks is the "Combined Mark," consisting of the word "MONGOLS" and the drawn image of a Genghis Khan-type character with sunglasses and a ponytail, riding a motorcycle, with the letters "M.C." appearing below the motorcycle:

The Mongol Nation and its members use the collective membership marks solely for the purpose of identifying the persons displaying the marks as members of the motorcycle club. Unlike a typical trademark (i.e. , "Pepsi" or "Dr. Pepper"), the words and images are not used to distinguish the source or origin of particular goods or services in commerce. They are used only to identify membership in the collective. This type of trademark allows an organization, union, club, or other type of association-be it the National Rifle Association, American Thyroid Association, Christian Deer Hunters Association, International Brotherhood of Teamsters, or Navy Seal Team -to prevent others from using the words or images in a way that violates trademark law, including by creating public confusion about the origin of goods. For example, in 2012 the Hells Angels Motorcycle Corporation filed a lawsuit against Toys "R" Us, Inc. for selling yo-yos with a design confusingly similar to the motorcycle club's "Death Head" collective membership mark.

For more than a decade the United States has expended resources seeking forfeiture of the Mongol Nation's collective membership marks. Why? It is beyond question that the Government has a legitimate interest in attacking the economic roots of a criminal organization like the Mongol Nation. But what does the United States accomplish by seizing control of the intellectual property rights associated with a motorcycle club's associative symbols? The Government's own prior admissions shed light on the objectives underlying more than ten years of their efforts: The collective membership marks are "potent emblem[s]" used to "generate fear among the general public," and the Government has sought orders to prevent use of "the trademark to create an atmosphere of fear through public display." The Government has stated publicly that it has sought to "stop [a] gang member and literally take [a] jacket right off his back." The Government is not merely seeking forfeiture of the ship's sails. In this prosecution the United States is attempting to use RICO to change the meaning of the ship's flag.

Now that the preliminary order of forfeiture is before the Court, the Government contends that its request is limited; the Government argues at length about what the requested preliminary order of forfeiture does not authorize. See, e.g. , Reply ISO Mot. for POF at 25 ("the POF merely forfeits Defendant's right to limit use of the Marks-the POF in itself does not confer any right upon the government to do so"); id. at 22 ("The government has ... requested nothing more than the entry of a POF, and it is unreasonable to presume that the mere entry of that order could or would lead to seizures or a reasonable belief that seizures would occur[.]"). But the First Amendment "protects against the Government; it does not leave us at the mercy of noblesse oblige " or any promise to use power "responsibly." United States v. Stevens , 559 U.S. 460, 480, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

The Government has included language in its proposed POF stating that the order "standing alone" does not authorize seizure of property bearing the symbols and that the Government "shall not apply to any Court (other than this Court) requesting seizure or enforcement authority based upon this Order." Dkt. 354-1 at 6. This is not enough to remedy the chilling effect the forced transfer of a symbol to the United States government has on the Mongol Nation, its members, and society at large. The Government has not been forthright with this Court and the public regarding whether the United States can feasibly use the Mongol Nation's collective membership marks or transfer the marks to a third party for their exclusive use. These statements to the Court have been accompanied by public threats made by the United States Attorney regarding the Government's intention to strip vests off members' backs. Most recently, the special agent in charge of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Los Angeles Field Division, stated that the Government had successfully seized a "unity symbol." Because the forced transfer of symbols to the United States immediately chills the Mongol Nation's and its members' continued rights to display or otherwise use the collective membership marks without fear of legal retaliation or payment of a licensing fee at any point following forfeiture, the forced transfer of the collective membership marks to the United States violates the First Amendment.

The Government's request also violates the Eighth Amendment's Excessive Fines Clause and must be denied on this basis alone. The Mongol Nation is a convicted criminal entity, and its members have pleaded guilty to heinous acts of murder, attempted murder, drug trafficking, and other crimes. But in this case the jury found that the Government did not prove the requisite nexus between the collective membership marks and the substantive RICO offense; the jury found the collective membership marks forfeitable as to RICO conspiracy alone. The forfeiture of the rights associated with a symbol that has been in continuous use by an organization since 1969 is unjustified and grossly disproportionate to this offense. To hold otherwise sets a dangerous precedent that enables the Government to target the associative symbols of organizations it chooses to prosecute for RICO conspiracy. For example, the United States brought multiple RICO actions against James Hoffa and the International Brotherhood of Teamsters ("Teamsters"). See, e.g., United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO , 3 F.3d 634, 636 (2d Cir. 1993). The purpose of these prosecutions was to rid the union of "the hideous influence of organized crime." Id. Today the Teamsters continue to own and use the INTERNATIONAL BROTHERHOOD OF TEAMSTERS collective membership mark, and the group's more than one million union members display their symbol on clothing, including on vests (albeit fleece, not leather). See also Timbs v. Indiana , 586 U.S. ----, 139 S.Ct. 682, 203 L.Ed.2d 11 (2019) (Ginsburg, J.) ("Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts' critics learned several centuries ago.").

"[T]he district court must avoid unconstitutional results by fashioning forfeiture orders that stay within constitutional bounds." United States v. Busher , 817 F.2d 1409, 1415 (9th Cir. 1987). The Court thus DENIES the request for a Preliminary Order of Forfeiture in its current form. First , the requested POF violates the Mongol Nation's and its members' First Amendment rights. Second , the requested POF violates the Eighth Amendment's Excessive Fines Clause.

However, pending the filing of an amended POF consistent with this Order, the Court conditionally GRANTS the Government's request to forfeit all body armor, firearms, and ammunition entered into evidence during trial as well as items of tangible personal property bearing the collective membership marks, including vests or "cuts," patches, clothing and documents, that are currently in the custody of the United States. This requested forfeiture raises no constitutional concerns before an ancillary proceeding is conducted to determine ownership interests in the property.

Moreover, the Court DENIES Defendant's motion for acquittal and motion for a new trial. Having reviewed the evidence presented during trial, the Court declines to overturn the jury's finding by beyond a reasonable doubt that the Mongol Nation is guilty of substantive RICO and RICO conspiracy. And the Court finds no legal basis to overturn the guilty verdict. Consistent with the Ninth Circuit's previous ruling in this case, the evidence demonstrated that the Mongol Nation is distinct from the Mongol Gang; and the Mongol Nation is legally capable of committing the underlying RICO acts. 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.

I. Background

Before addressing the parties' arguments, the Court recounts the lengthy history of the Government's attempts to forfeit the property at issue.

A. United States v. Cavazos, et al.

On October 9, 2008, a federal grand jury returned an indictment as filed in United States v. Cavazos, et al. , Case No. 2:08-cr-1201-FMC (C.D. Cal. Oct. 9, 2008) (the "Cavazos Indictment") (Cavazos Dkt. 1), wherein the Government alleged individual members of the Mongols Motorcycle Club violated RICO and various other criminal statutes. These criminal proceedings lasted five years. Some 79 individuals appeared before three federal district court judges, including before this Court; ultimately 77 of the individuals pleaded guilty. See, e.g., United States v. Hector Enrique Gonzalez , Case No. 2:08-cr-01201-DOC-3.

In Count 85 of the Cavazos Indictment, the Government noticed the individual defendants that the United States would seek forfeiture of certain property as part of any sentence, including the "trademark/service mark 'Mongols' (Registration No. 2916965), issued to Mongol Nation, purportedly for use in commerce in connection with promoting the interests of persons interested in the recreation of riding motorcycles.' " Cavazos Indictment at 173.

On October 17, 2008, the Government filed an ex parte application for a post-indictment restraining order (Cavazos Dkt. 248) to (1) preserve against the sale, transfer, conveyance, or other disposal of a "trademark" registered to "a motorcycle gang known as the 'Mongols' or 'Mongol Nation' "; (2) "enjoin use or display of the trademark by the defendants in this case who control Mongol Nation and those acting on their behalf or in concert with them"; and (3) require the surrender for seizure of property bearing the mark. Cavazos Dkt. 248 at 2. The Government argued that the "trademark" was a "potent emblem" used to "generate fear among the general public[.]" Id. at 21-22. The Government sought an order to prevent the defendants from "using the trademark to create an atmosphere of fear through public display." Id. at 22.

On October 21, 2008, the United States Attorney's Office for the Central District of California issued a press release, attributing the following quote to the United States Attorney for the Central District of California: "If the court grants our request ... then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back." That day, Judge Florence-Marie Cooper granted in part the Government's application but denied the Government's request to enjoin defendants or their associates (including family members) from "wearing, using or displaying the Mongols trademark." See Cavazos Dkt. 249. On October 22, 2008, the Government filed a subsequent ex parte application for an amended post-indictment restraining order to "clarify what the government is entitled to do to enforce the [October 21, 2008 restraining order]." Cavazos Dkt. 225. Judge Cooper entered the amended order. Cavazos Dkt. 235.

On March 10, 2009, Ramon Rivera (a member of the Mongols Motorcycle Club who was not charged in the Cavazos criminal proceedings) filed a civil complaint against the Government. Rivera v. Carter , Case No. 2:09-cv-2435-JC (C.D. Cal. Mar. 10, 2009). Rivera sought declaratory judgment that the RICO statute does not authorize the Government to seize items bearing the collective membership mark; that the mark is protected speech under the First Amendment to the United States Constitution, which protects Rivera's right to wear or display items bearing the mark; and that the Cavazos injunction violated the Due Process Clause of the Fifth Amendment to the United States Constitution because Rivera had not been given a hearing to determine whether he was an agent, servant, employee, or family member of any of the Cavazos defendants. Rivera Dkt. 1 at 4-5.

On July 31, 2009, Judge Cooper granted Rivera's motion for a preliminary injunction. Rivera Dkt. 39. The Government argued that Rivera lacked Article III standing to challenge the forfeitability of the registered mark because he had no ownership interest in the mark, and because he was not a party to the criminal action. Id. at 4. Judge Cooper rejected the Government's standing arguments and held that Rivera was entitled to challenge the forfeitability because it "directly impacts his personal rights" and because "nobody else has challenged the forfeitability of the mark." Id. at 4-5 (citing LSO, Ltd. v. Stroh , 205 F.3d 1146, 1153-54 (9th Cir. 2000) ). Judge Cooper also rejected the Government's argument that Rivera was prohibited from bringing the civil action under the RICO statute because he claimed no interest in the mark. Id. at 5.

On the merits, Judge Cooper took issue with the forfeitability of a collective membership mark owned by the Mongol Nation, an unincorporated association. Judge Cooper noted that only a RICO defendant's property and his or her interest in the RICO enterprise is forfeitable under the statute. Id. at 10. Yet the Cavazos indictment charged individual members of the motorcycle club, not the Mongol Nation. Id. "Nonetheless, the Government seeks forfeiture of property belonging to the Mongol Nation." Id. Judge Cooper held that Rivera satisfied his burden of demonstrating a likelihood of success on the merits because the mark sought to be forfeited "has been and continues to be used exclusively by the Mongol Nation and Mongols Nation, Inc." and as these entities were not defendants in the Cavazos Indictment, the Government "cannot seek forfeiture of their collective membership mark." Id. at 14-15.

Judge Cooper also made several observations regarding the First Amendment, which the Court repeats in full:

* * *

In light of additional facts disclosed at the hearing for this matter on June 22, 2009, it is now clear that seizure of property bearing the mark at issue would have serious First Amendment implications. At the June 22 hearing, the Government revealed for the first time that the mark it sought to forfeit was a collective membership mark. Previously, in its Ex Parte Application for Post-Indictment Restraining Order, the Government referred to the mark simply as a trademark, which was "purportedly for use in commerce in connection with promoting the interests of persons interested in the recreation of riding motorcycles." (Ciccone Decl. ¶ 4.) In contrast to commercial trademarks, which are used in commerce and generally not entitled to full First Amendment protections, collective membership marks are used by members of an organization to "indicat[e] membership in a union, an association, or other organization." 15 U.S.C. § 1127. The use and display of collective membership marks therefore directly implicate the First Amendment's right to freedom of association.

The Supreme Court has recognized that " 'implicit in the right to engage in activities protected by the First Amendment' is 'a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.' This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas." Boy Scouts of America v. Dale , 530 U.S. 640, 647-48, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (citing Roberts v. United States Jaycees , 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) ). Furthermore, clothing identifying one's association with an organization is generally considered expressive conduct entitled to First Amendment protection. See Church of American Knights of the Ku Klux Klan v. Kerik , 356 F.3d 197, 206 (2d Cir. 2004) ("We agree with the District Court that the regalia of the American Knights, including the robe, mask, and hood, are expressive; they are expressive in the way that wearing a uniform is expressive, identifying the wearer with other wearers of the same uniform, and with the ideology or purpose of the group."); see also Truth v. Kent School Dist. , 542 F.3d 634, 651 (9th Cir. 2008) (Fisher, J., concurring) ("There is no question that acts of expressive association are protected forms of speech under the First Amendment."). If speech is noncommercial in nature, it is entitled to full First Amendment protection, which prohibits the prior restraint and seizure of speech-related materials without a judicial determination that the speech is harmful, unprotected, or otherwise illegal. Adult Video Ass'n v. Barr , 960 F.2d 781, 788 (9th Cir. 1992) ("The First Amendment will not tolerate such seizures until the government's reasons for seizure weather the crucible of an adversary hearing.").

The evidence currently before the Court further demonstrates that the items the Government seeks to seize are expressive and denote an association with the Mongol Nation. The stated purpose for registering the mark as a collective mark is "to indicate membership in an association of persons interested in the recreation of riding motorcycles." (Welk Decl. in Support of Opp'n, Ex. B.) Plaintiff affirms this purpose, and states his "display of the Image affirms my membership in the Club, [and] symbolizes unity and brotherhood with my friends and fellow Club members." (Rivera Decl. ¶ 11.) Similarly, the current National President of Mongols Nation, Inc. declares that the mark serves "as a means of identifying Club members and symbolizing their common interests and beliefs." (Guevara Decl. ¶ 6.) The Court agrees that the collective membership mark acts as a symbol that communicates a person's association with the Mongol Nation, and his or her support for their views. Though the symbol may at times function as a mouthpiece for unlawful or violent behavior, this is not sufficient to strip speech of its First Amendment protection. Ashcroft v. Free Speech Coalition , 535 U.S. 234, 253, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2003) ("The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it .... First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.").

Prohibiting speech of this nature constitutes an attack on a particular viewpoint. Sammartano v. First Judicial District Court, in and for the County of Carson City , 303 F.3d 959, 971-72 (9th Cir.2002). In Sammartano , the Carson City courthouse enacted a rule to prohibit admission of those with "clothing, attire or 'colors' which have symbols, markings or words indicating an affiliation with street gangs, biker or similar organizations," because "such clothing or attire can be extremely disruptive and intimidating, especially when members of different groups are in the building at the same time." 303 F.3d at 964. The Ninth Circuit reasoned that the rule singles out bikers and similar organizations for the message their clothing is presumed to convey, and held that the rule impermissibly discriminates against a particular point of view-the view of biker clubs as opposed to garden clubs and gun clubs. Id. at 971-72. In this case, the Government targets an even narrower group of individuals, a single motorcycle club. In addition, the Government has been seizing property, which imposes a greater restriction on individual rights than the denial of access to a public facility. Accordingly, the seizure of property bearing a Mongols membership mark should be considered viewpoint-discriminatory.

The Government's ability to seize property bearing the trademark acts as a prior restraint and cannot stand without a judicial determination that the speech is harmful, unprotected, or otherwise illegal. No such determination was ever sought by the Government, and no such determination was ever made by the Court. The seizure of property is also viewpoint or content-based, which triggers strict scrutiny. See Crawford v. Lungren , 96 F.3d 380, 384 (9th Cir. 1996) ("If the statute is content-based, we apply strict scrutiny to determine whether the statute is tailored to "serve a compelling state interest and is narrowly drawn to achieve that end."). Though it is arguable whether a compelling reason exists to prevent the display of the Mongols trademark,10 the seizure of all property bearing the mark cannot be considered the least restrictive alternative. For these reasons, the Court observes that the lack of statutory authority to seize Plaintiffs property is consistent with the First Amendment's right to freedom of association, which acts to protect Plaintiff's right to display the Mongols collective membership mark.

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Rivera v. Carter, No. 2:09-CV-2435-FMC, 2009 WL 8753486, at *10-11 (C.D. Cal. July 31, 2009).

Ultimately, on January 4, 2011, following the death of Judge Cooper, this Court granted Rivera's motion for summary judgment. Rivera Dkt. 90. In granting summary judgment, this Court echoed Judge Cooper's holding on the forfeitability of the collective membership mark and observations regarding the Government's affronts to the First Amendment. See generally id. Later, this Court determined that the Government's litigation position was not substantially justified because it was contrary to established First Amendment and trademark law and granted Rivera's motion for attorney's fees. Rivera Dkt. 113. The Government appealed the order granting attorney's fees, but ultimately voluntarily dismissed the appeal. Rivera Dkt. 117.

B. United States v. Ruben Cavazos, aka "Doc"

Next, the saga returns to the Cavazos criminal proceedings described in Section I(A), supra. Following the death of Judge Cooper, the criminal proceedings were assigned to this Court and Judge Otis Wright. Cavazos Dkts. 3334, 3339. Despite Judge Cooper's order in the related Rivera civil case, the Government continued to seek forfeiture of the registered word mark and image mark following the plea agreement of defendant Ruben Cavazos, aka "Doc." Cavazos Dkt. 3854. On June 15, 2010, Judge Wright entered the proposed Preliminary Order of Forfeiture without amendment, finding that the government "has established the requisite nexus between the [marks] and the offenses described in Count One of the Indictment." Id. On July 20, 2010, the "Mongols Nation Motorcycle Club and its successor, Mongols Nation Motorcycle Club, Inc." filed a motion to vacate the Preliminary Order of Forfeiture, arguing in part that the issue had been resolved in the Rivera dispute. Cavazos Dkt. 3946 at 26. On September 21, 2010, Judge Wright granted the petition and incorporated and reproduced a substantial portion of Judge Cooper's order on the Rivera preliminary injunction verbatim, "[f]inding complete agreement with the analysis[.]" Id. at 4-10. Judge Wright vacated the Preliminary Order of Forfeiture and denied the Government's application for an order authorizing seizure of items bearing the marks. Id. at 10.

C. United States v. Mongol Nation, an Unincorporated Association

On February 13, 2013, Defendant Mongol Nation (an unincorporated association) was indicted. Dkt. 1. On May 26, 2015, Judge Wright recused himself from the case. Dkt. 88. This matter was eventually transferred to this Court. Dkt. 102. The Court held a status conference on June 22, 2015, and scheduled trial for January 5, 2016. Dkt. 104. The Court also set deadlines for briefing and argument on a renewed motion to dismiss the indictment. Id. On September 16, 2015, the Court granted the Mongol Nation's renewed motion to dismiss the indictment. Dkt. 114. The Court held that the indictment failed on distinctiveness grounds. Id. at 17 ("[T]here is no meaningful distinction between the association Mongol Nation and the enterprise of the Mongol Gang."). The Court did not reach arguments concerning whether it is proper to premise liability on predicate acts an unincorporated association is not legally capable of committing itself, although the Court "note[d] that the Government could identify no other case where an unincorporated association, or other entity defendant, was held liable for predicate acts of violent crime." Id. at 21. The Court dismissed the Indictment on distinctiveness alone.

The Ninth Circuit disagreed. See Dkt. 127; United States v. Mongol Nation , 693 F. App'x 637 (9th Cir. 2017). Accepting as true the allegations in the indictment, the Ninth Circuit held that this Court erred in concluding that Mongol Nation and the Mongols Gang are not sufficiently distinct. Id. at 2. "[B]ecause Mongol Nation was alleged to be part of a larger whole, the Mongols Gang, which is comprised of additional individuals who together form the alleged enterprise, the district court erred by dismissing the indictment on distinctiveness grounds." Id. at 3-4. The Ninth Circuit held it would be "premature to address whether the government will ultimately be able to secure forfeiture[.]" Id. at 4. "Similarly, the Defendant's constitutional challenge is not ripe for review."Id. The Ninth Circuit declined to reach arguments regarding whether it is proper to premise liability on predicate acts an unincorporated association is not legally capable of committing itself. Id. "Because some predicate criminal acts can be committed by entities similar to an unincorporated association ... it would not be futile to remand the indictment for further proceedings." Id. at 4-5.

In light of the Ninth Circuit's guidance, especially regarding the ripeness of constitutional and forfeitability challenges, this Court allowed the Government to file the First Superseding Indictment ("FSI") (Dkt. 169) and scheduled trial. The Court afforded each party a full and fair trial.

D. Verdicts and Property Sought for Forfeiture

The jury unanimously found the Defendant Mongol Nation guilty of Count One in the FSI: Substantive RICO under 18 U.S.C. § 1962(c). The jury found beyond a reasonable doubt that the Mongol Nation committed two or more racketeering acts within ten years of each other as part of a pattern of racketeering activity. Dkt. 320. Specifically, the jury unanimously found the government proved Racketeering Act One (conspiracy to distribute cocaine and methamphetamine); Racketeering Act Three (distribution of methamphetamine); Racketeering Act Four (murder); Racketeering Act Six (attempted murder); and Racketeering Act Eight (distribution of methamphetamine). Id. The jury unanimously found the government did not prove Racketeering Act Two (attempted murder); Racketeering Act Nine (murder); and Racketeering Act Ten (murder). The jury failed to reach a verdict on Racketeering Act Five (attempted murder) but indicated after polling that the jury was 10-to-2 in favor of "Not Proven." The jury also unanimously found the Mongol Nation guilty of Count Two in the FSI: RICO Conspiracy under 18 U.S.C. § 1962(d). Id. at 6.

Following the guilty verdict, the jury determined whether certain property is forfeitable in connection with the offenses for which they found the Mongol Nation guilty. The Government sought forfeiture of any and all legal and equitable rights of any kind or nature associated with or appurtenant to three collective membership marks:

1. The Collective Membership Mark consisting of the word "Mongols" (the "Word Mark"):

2. The Collective Membership Mark consisting of the drawn image of a Genghis Khan-type character with sunglasses and a ponytail, riding a motorcycle, with the letters "M.C." appearing below the motorcycle (the "Center Patch Image"):

3. The Collective Membership Mark consisting of both the Word Mark and the Center Patch Image (the "Combined Mark"):

In addition to the marks, the Government sought forfeiture of the following items of tangible personal property bearing the Word Mark, the Center Patch Image, or the Combined Mark: vests, patches, clothing, belts, belt buckles, jewelry, lighters, bandanas, stickers, flags or pennants, hats, helmets, documents, accessories, and motorcycle parts. See id. at 3-5. And the Government sought forfeiture of all weapons, body armor, firearms, and ammunition entered into evidence. Id. at 5-10.

The jury found none of the property forfeitable under Count One for substantive RICO. Id. And under Count Two for RICO Conspiracy, the jury found the following items not forfeitable: belts, belt buckles, jewelry, lighters, bandanas, stickers, flags or pennants, hats, helmets, accessories, and motorcycle parts bearing the marks. Id. But under Count Two, the jury found forfeitable (1) the Word Mark, Center Patch Image, and Combined Mark; (2) vests, patches, clothing, and documents bearing the marks; and (3) all weapons, body armor, firearms, and ammunition entered into evidence. Id.

E. Post-Trial Motions

Following the forfeiture-phase verdict, the Government filed the present Motion for Preliminary Order of Forfeiture. On January 21, 2019, the Mongol Nation opposed ("Opp'n to Mot. for POF") (Dkt. 362). On February 11, 2019, the Government replied ("Reply ISO Mot. for POF") (Dkt. 366).

On December 27, 2018, the Mongol Nation filed the Motion for New Trial or Mistrial ("Rule 33 Mot.") (Dkt. 324). On January 21, 2019, the Government opposed ("Opp'n to Rule 33 Mot.") (Dkt. 364). On February 11, 2019, the Mongol Nation replied ("Reply ISO Rule 33 Mot.") (Dkt. 367).

On January 10, 2019, the Mongol Nation filed the Motion for Judgment of Acquittal in the Guilt Phase ("Rule 29 Mot.") (Dkt. 340). On January 21, 2019, the Government opposed ("Opp'n to Rule 29 Mot.") (Dkt. 363). On February 11, 2019, the Mongol Nation replied ("Reply ISO Rule 29 Mot.") (Dkt. 368).

II. Legal Standard

A. RICO Forfeiture

As soon as practical after a verdict or finding of guilty on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute. Fed. R. Crim. P. 32.2. Under 18 U.S.C. § 1963, a defendant convicted of racketeering activity shall forfeit to the United States (1) any interest the defendant acquired or maintained as a result of the violation of which it was found guilty; (2) any interest in any enterprise, security of any enterprise, claim against any enterprise, or any property or contractual right of any kind affording a source of influence over any enterprise that the defendant established, operated, controlled, conducted, or participated in the conduct of as part of the offense; and (3) any property constituting or derived from any proceeds that the defendant obtained, directly or indirectly, from racketeering activity. 18 U.S.C. §§ 1963(a)(1)-(3). Property subject to criminal forfeiture includes real property, including things growing on, affixed to, and found in land, as well as tangible and intangible personal property, including rights, privileges, interests, claims, and securities. 18 U.S.C. §§ 1963(b)(1)-(2).

B. Motion for a Judgment of Acquittal

"A Rule 29 motion is basically a challenge to the sufficiency of the evidence." United States v. Wong , No. CR-12-0483 EMC, 2014 WL 923347, at *5 (N.D. Cal. Mar. 5, 2014). "In ruling on a Rule 29 motion, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Alarcon-Simi , 300 F.3d 1172, 1176 (9th Cir. 2002). "[T]he government does not need to rebut all reasonable interpretations of the evidence that would establish the defendant's innocence, or rule out every hypothesis except that of guilt beyond a reasonable doubt." U.S. v. Nevils , 598 F.3d 1158, 1164 (9th Cir. 2010) (citation and internal quotation marks omitted). However, "evidence is insufficient to support a verdict where mere speculation, rather than reasonable inference, supports the government's case, or where there is a total failure of proof of a requisite element." Id. at 1167.

C. Motion for a New Trial

Federal Rule of Criminal Procedure 33 authorizes the Court, on motion of a defendant, to "vacate any judgment and grant a new trial if the interest of justice so requires." A "motion for a new trial is directed to the discretion of the district judge. It should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict." United States v. Pimentel , 654 F.2d 538, 545 (9th Cir. 1981). The defendant has the burden to justify the need for a new trial. United States v. Shaffer , 789 F.2d 682, 687 (9th Cir. 1986).

III. Discussion

Numerous post-trial issues are before the Court. First, the Court addresses the legal questions raised by the Government's requested Preliminary Order of Forfeiture. Second, the Court turns to the Mongol Nation's legal challenges to the guilty verdict, including "distinctiveness" and the Mongol Nation's capacity to commit violent crimes as an unincorporated association. Third, the Court resolves the Mongol Nation's fact-intensive and procedural attacks on the guilty verdict such as whether the racketeering acts were proven beyond a reasonable doubt.

A. Forfeitability of the Collective Membership Marks

The Mongol Nation raises several challenges to the requested Preliminary Order of Forfeiture, including challenges under the First, Fifth, and Eighth Amendments.

1. First Amendment

The Mongol Nation argues that the requested forfeiture violates the First Amendment because the Constitution protects the display of insignia by club members as this communicates the fact of their association with the organization. Opp'n to Mot. for POF at 3. According to Defendant, "[i]t is the essence of protected speech to proclaim one's association or affinity with an organization by wearing or displaying distinctive clothing, words, or images." Id. The Mongol Nation argues that the seizure of this material is a prior restraint on speech. Id. Because the Government is seizing the specific marks, the Mongol Nation argues this attack is content-based. Id. at 4. Defendant contends that the First Amendment does not permit restriction on speech because some members of a group committed violent acts. Id. And according to the Mongol Nation, seizure of items bearing the marks cannot be upheld on the ground that the members "may have other means to express their message." Id. at 6. The Mongol Nation argues that forfeiture of the collective membership marks would have a chilling effect on free speech and association. Id.

The Government argues that entry of the POF is a procedural step that must be entered to provide a vehicle by which third parties may "pursue substantive issues of ownership" that will "inform any constitutional analysis[.]" Reply ISO Mot. for POF at 23. With regards to constitutional standing, the Government argues that the Mongol Nation cannot invoke associational standing to advance the constitutional (or any other) claims of its individual members in their absence. Id. at 14. The Government argues that the Court should follow the "general rule requiring individuals with potential constitutional claims to present those claims themselves." Id. Regardless of associational standing, according to the Government, the Mongol Nation has not met its burden demonstrating that the First Amendment is violated by entry of the POF. Id. at 21. The Government "agrees" that the seizure of personal property bearing the collective membership marks may implicate important Constitutional issues. Id. at 22. But the Government argues that it has not requested an order authorizing such seizures. Id. Rather, the forfeiture order strips "Defendant of the property and exclusivity rights associated with the collective membership marks." Id. at 24. According to the Government, neither is speech. Id. The Government argues that even if the property rights associated with the collective membership marks are speech, Defendant has failed to articulate any action or threatened action that will result from entry of the POF. Id. at 25. "[T]he POF merely forfeits Defendant's right to limit use of the Marks-the POF does not confer any right upon the government to do so." Id. at 25 (emphasis in original). Accordingly, the Government argues that reliance on prior restraint cases is misplaced because the Government has "neither asked for seizure authority in the proposed POF, nor indicated that it intends to do so." Id.

a. Standing

Article III of the United States Constitution gives federal courts jurisdiction only over cases and controversies, and the doctrine of standing identifies disputes appropriate for judicial resolution. Article III standing requires a plaintiff to have suffered an injury in fact, for there to be a causal connection between the injury and conduct complained of, and that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "[T]he 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Id. at 563, 112 S.Ct. 2130 (quoting Sierra Club v. Morton , 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ). The Constitution empowers federal courts to hear actual cases and not render advisory opinions. See United Public Workers v. Mitchell , 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947) ; Aetna Life Ins. v. Haworth , 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937) ; see also United States v. Kaczynski , 551 F.3d 1120, 1124 (9th Cir. 2009) ("Kaczynski cannot ... bring a justiciable as-applied claim at the present time based upon the possible future actions of the government.").

The Supreme Court of the United States has explained that standing requirements are somewhat relaxed in First Amendment cases. Secretary of State of Md. v. Joseph H. Munson Co., Inc. , 467 U.S. 947, 956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) ; see also Lopez v. Candaele , 630 F.3d 775, 781 (9th Cir. 2010) ("First Amendment cases raise unique standing considerations that tilt dramatically toward a finding of standing.") (internal quotation marks and citations omitted) ). In the most general sense, a plaintiff must have suffered an injury or threat of injury that is "credible," not "imaginary or speculative." Babbitt v. United Farm Workers Nat'l Union , 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Because "[c]onstitutional challenges based on the First Amendment present unique standing considerations," plaintiffs may establish an injury in fact without first suffering a direct injury from the challenged restriction. Lopez v. Candaele , 630 F.3d 775, 785 (9th Cir. 2010). In such pre-enforcement cases, the plaintiff may meet constitutional standing requirements by "demonstrat[ing] a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers Nat'l Union , 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979).

The First Amendment issues are ripe. The Government is requesting the forced transfer of the rights associated with the club's symbols to the United States. There is a realistic danger that the transfer of the rights associated with the symbol to the Government will have a chilling effect, restrain speech, and limit associational rights, especially in light of the Government's own statements about its objectives. The Court does not agree that the Federal Rules of Criminal Procedure require entry of the POF and notice to third parties before the First Amendment challenges can be resolved. As the Government notes, Federal Rule of Criminal Procedure 32.2 provides the procedural process by which third parties (including individual members) can assert their ownership interests in the property sought to be forfeited. Mot. for POF at 12-13. But the question before the Court is not one of ownership. The Mongol Nation, an unincorporated association, owns the collective membership marks. As discussed supra , the entity intervened in previous legal proceedings to declare its ownership of the marks. Any attempt to assert otherwise at this stage is unavailing. Ownership is not dispositive of First Amendment standing. Individual members of the motorcycle group will be harmed by the forfeiture of the collective membership marks because they use the marks as members of the collective and face future repercussions for infringing use of the symbols after title vests in the United States. The Court does not need to send notice or engage in "pre-hearing discovery" to reach this conclusion.

Moreover, if the Court agreed with the Government's procedure-based arguments, it is not clear that individual members of the Mongol Nation would ever have the ability to assert their constitutional rights in an ancillary proceeding. It is well established that, "[i]n an ancillary proceeding, a court may dismiss a third-party petition for lack of standing." United States v. Salti , 579 F.3d 656, 667 (6th Cir. 2009) (citing Fed. R. Crim. P. 32.2(c)(1)(A) ); see, e.g., United States v. French , 822 F.Supp.2d 615, 618 (E.D. Va. 2011). To establish standing under § 1963 and Rule 32.2, a claimant "must show that he has a colorable ownership or possessory interest" in the subject property. (Id. at 2 (quoting Arevalo v. United States , No. 05-110, 2011 WL 442054, at *3 (E.D. Pa. Feb. 8, 2011) ). Because the individual members of the Mongol Nation Motorcycle Club have already claimed they do not own the collective membership marks, they would not have standing to participate in any ancillary proceeding under the federal rules. See United States v. Rosga , 864 F.Supp.2d 439, 451 (E.D. Va. 2012) ("Petitioners' scant factual allegations prove, at most, that O'Neill, Kaczmarek, and Barboza possessed nominal authority over collectively held property bearing the AOA or OMC insignia. Without claiming to have ever possessed or actively controlled the property, however, and having failed to plead any facts substantiating their claims of unique dominion, Petitioners' allegations are insufficient to demonstrate a plausible 'right, title, or interest' in the contested property. Accordingly, Petitioners lack standing, and their claims must be dismissed."); see also Reply ISO Mot. for POF at 17 ("anyone who wants to claim an interest in property described in a POF may file a petition in the ancillary proceeding, but that does not mean that he or she has standing to pursue that claim."). The Government conflates ownership with First Amendment standing. The individual Mongol Nation members cannot be left without any opportunity to assert their constitutional rights.

It is beyond question that the Mongol Nation may assert First Amendment constitutional rights on its own behalf because, although an unincorporated association, the entity owns the collective membership marks at issue and will be injured by the Government's request to forfeit the rights associated with its use of associative symbols. See NAACP v. Button , 371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) ; see also Citizens United v. Fed. Election Comm'n , 558 U.S. 310, 375, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ("Citizens United has standing-it is being injured by the Government's enforcement of the Act."). The Mongol Nation also has standing to assert the corresponding rights of its members. Id. ("We also think petitioner has standing to assert the corresponding rights of its members."); Nat. Res. Def. Council, Inc. v. E.P.A. , 507 F.2d 905, 911 n.6 (9th Cir. 1974) ("We note that, in most instances where standing has been accorded to an organization, it is to an unincorporated association whose members, individually and collectively, themselves constitute the organization.").

As set forth in Hunt v. Washington State Apple Advert. Comm'n , an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The Mongol Nation's members would have standing to sue in their own right due to the chilling effect the Government's forced transfer of the symbols would have on their continued use of the marks, and the Court does not require their direct participation in this lawsuit to evaluate those harms. The Court sees no benefit in further delaying resolution of the paramount constitutional issues presented by the Government's requested forfeiture, and Supreme Court precedent establishes that the Mongol Nation has standing to pursue these challenges on its own behalf and on behalf of its members.

b. Collective Membership Marks

Before addressing the First Amendment challenges, it is important to understand the nature of the intangible property the Government seeks to forfeit. A collective membership mark is unique in that it is a type of trademark merely used to identify membership in a particular collective group or organization, cooperative, or association. 15 U.S.C. §§ 1127, 1054 ; 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 19:101 (5th ed.). Collective membership marks are unique in that they are used solely for the purpose of identifying the person displaying the mark as a member of a collective, not to distinguish the source or origin of particular goods or services. See TMEP § 1302 (8th ed. 2017). Neither the collective nor its members use the collective membership mark to identify and distinguish goods or services; rather, the sole function of such a mark is to indicate that the person displaying the mark is a member of the organized collective group. Id. Although collective membership marks are different from the typical trade and service marks identifying the source of goods and services, they are registered and enforced under the Lanham Act in generally the same manner and with the same effect as are trademarks. See 15 U.S.C. § 1127. Under the Lanham Act, governmental entities may own, register, and enforce trademarks, including collective membership marks. See 15 U.S.C. § 1054 (authorizing "nations, States, municipalities, and the like" to register collective marks).

Here, the collective membership marks at issue indicate "membership in an association dedicated to motorcycle riding appreciation," see U.S. Reg. No. 4,730,806, and the Government admits they are used "to indicate that the user of the mark is a member of a particular organization." Reply ISO Mot. for POF at 6. Motorcycle riding is, of course, an activity enjoyed by a large number of law-abiding citizens and does not indicate support of the commission of crimes. The collective membership marks do not have the same underlying purpose of a traditional trademark, which is used to distinguish goods or services in commerce.

c. Forfeiture of the Collective Membership Marks

The requested preliminary order of forfeiture of the Mongol Nation's collective membership marks violates the First Amendment.

There is no doubt that the display of word marks or symbols on a body or leather vest is pure speech. Anderson v. City of Hermosa Beach , 621 F.3d 1051, 1061 (9th Cir. 2010) ("Tattoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection."). Freedom of speech also protects the individual's "interest in self-expression." Consol. Edison Co. of New York v. Pub. Serv. Comm'n of New York , 447 U.S. 530, 534 n.2, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). The First Amendment presupposes that the freedom "to speak one's mind is not only an aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole." Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485, 503-04, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).

Clothing identifying one's association with an organization is generally considered expressive conduct entitled to First Amendment protection. See Church of American Knights of the Ku Klux Klan v. Kerik , 356 F.3d 197, 206 (2d Cir. 2004) ("We agree with the District Court that the regalia of the American Knights, including the robe, mask, and hood, are expressive; they are expressive in the way that wearing a uniform is expressive, identifying the wearer with other wearers of the same uniform, and with the ideology or purpose of the group."); see also Truth v. Kent School Dist. , 542 F.3d 634, 651 (9th Cir. 2008) (Fisher, J., concurring) ("There is no question that acts of expressive association are protected forms of speech under the First Amendment."). This protection is afforded to members of a collective notwithstanding the actions of the organization. The display of insignia by motorcycle members "communicate[s] the fact of their association with this particular kind of organization." Sammartano v. First Judicial Dist. Court , 303 F.3d 959, 972 (9th Cir. 2002).

As Judge Cooper held ten years ago, the collective membership marks act as a symbol that communicates a person's association with the Mongol Nation, and his or her support for their views. The very definition of a collective membership mark highlights the associative expression this type of property affords. See TMEP § 1302. The Mongol Nation's and its members' right to express their identity through the noncommercial display of symbols constitutes speech subject to First Amendment protections.

The First Amendment prohibits the Government from using RICO forfeiture laws to chill this expression. The Court views as disingenuous the Government's argument that the POF is merely a procedural step divesting the Mongol Nation of its legal rights to enforce exclusive use of the symbols, implicating no other harm to the entity or its members. "The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige " or any promise to use power "responsibly." United States v. Stevens , 559 U.S. 460, 480, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). It is important to acknowledge the Government's own statements regarding the marks and why they have spent years seeking forfeiture of the rights associated with these symbols. As the United States Attorney for the Central District of California stated in October 2008: "If the court grants our request... then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back." The Government has described the marks as "potent emblem[s]" used to "generate fear among the general public" and "create an atmosphere of fear through public display." Most recently, the special agent in charge of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Los Angeles Field Division, stated, "We are proud our work resulted in their unity symbol, the Mongol patch, being forfeited." The Government has lost credibility when it now suggests the sole purpose of more than a decade of prosecution is only to limit the Mongol Nation's ability to bring infringement lawsuits against other entities. In the ATF special agent's own words, the Government is after the club's unity symbol. The forced transfer of the legal rights associated with these symbols to the United States government presents immediate harms and chills the Mongol Nation's and its members' right to display the marks given the Government's threats and seizure attempts. The Government's attempt to seize symbols has chilling effects on speech nationwide. After title vests in the Government, this Court has serious concerns about future United States Attorneys in different districts and circuits using the rights associated with these symbols in harmful ways. The forced transfer of a collective membership mark has lasting chilling effects despite representations made to this Court.

The current POF-which would vest title in the United States-functions as a prior restraint on future speech. Any system of prior restraints of expression bears a heavy presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1962). In order to justify a prior restraint, the government must demonstrate that the restraint is justified without reference to the content of the speech, and is narrowly tailored to serve a compelling governmental interest. Nebraska Press Ass'n v. Stuart , 427 U.S. 539, 571, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

The requested forfeiture also functions as a content-based restriction on speech. "Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Reed v. Town of Gilbert, Ariz. , --- U.S. ----, 135 S.Ct. 2218, 2227, 192 L.Ed.2d 236 (2015). The Government specifically seeks ownership of the rights associated with the word "MONGOLS" and the image of a Genghis Khan-type character with sunglasses and a ponytail, riding a motorcycle, with the letters "M.C." appearing below the motorcycle. The Government seeks to strip the Mongol Nation of the rights associated with this symbol because it is a "potent emblem" that stokes "fear in the public." Cavazos Dkt. 248 at 21-22. The Constitution demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality. Ashcroft v. American Civil Liberties Union , 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). This is a demanding standard. Brown v. Entm't Merchants Ass'n , 564 U.S. 786, 799, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).

The Government's interest in punishing a criminal entity, including through forfeiture of weapons, body armor, ammunition, and other assets that play a financial role in the operation of a racketeering enterprise, is appropriate. The Government also has an "undisputed compelling interest in ensuring that criminals do not profit from their crimes." Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd. , 502 U.S. 105, 119, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). But the First Amendment requires that the Government's chosen restriction on speech be "actually necessary" to achieve its interest. United States v. Alvarez , 567 U.S. 709, 725, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (citation omitted). The Government has argued that it has a strong interest in the forfeiture of these marks because they are "potent emblem[s]" used to "generate fear among the general public." Cavazos Dkt. 248 at 21-22. RICO allows for less speech-restrictive means by which the Government can dismantle a criminal entity, such as the seizure of financial assets. Regardless of how "potent" a symbol may be, or how much "fear" a symbol generates, the Government cannot justify the restriction of this speech, especially given the symbols'

purely associative purpose. Though the symbol may at times function as a mouthpiece for unlawful or violent behavior, this is not sufficient to strip speech of its First Amendment protection. Ashcroft v. Free Speech Coalition , 535 U.S. 234, 253, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2003) ("The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.... First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end.").

Moreover, the Government's interest in dismantling a criminal organization is not sufficiently tied to the reality of their forfeiture request. There is no evidence that forfeiture of collective membership marks will lead to a less violent or capable criminal organization. The Government admits that the Mongol Nation does not profit from the sale of merchandise bearing the symbols in commerce. The Mongol Nation will continue to use violent means to protect its insignia after the loss of intellectual property rights. And it is not even clear that forfeiture of the marks would strip the Mongol Nation of its exclusive rights to the collective membership marks, given that the marks may be deemed abandoned immediately upon their forced transfer in gross to the United States. The Government's request does not justify the chilling effect the POF has on expression. As this Court has held before, not everything repugnant is unconstitutional. And what does the Government plan to do with tattoos of the Word Mark and Center Patch Image on members' backs, arms, or other body parts? See Trial Ex. 35.

That certain individual members of the Mongol Nation displayed the symbols while committing violent crimes or were rewarded with other patches for the commission of crimes does not justify the Government's attempt to bootstrap a conviction of the motorcycle club into censorship of uncharged members and supporters. "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it." Ashcroft , 535 U.S. at 253, 122 S.Ct. 1389.

The Supreme Court decision in Alexander v. United States , 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (Rehnquist, J.) does not change the analysis. In that case, the Supreme Court held that seizing and destroying expressive materials pursuant to RICO's criminal forfeiture provision did not constitute an unconstitutional prior restraint on speech as opposed to a permissible criminal punishment. Id. at 549, 113 S.Ct. 2766. According to Alexander, the forfeiture order imposed a complete ban on his future expression. Id. The Supreme Court disagreed:

"By lumping the forfeiture imposed in this case after a full criminal trial with an injunction enjoining future speech, petitioner stretches the term 'prior restraint' well beyond the limits established by our cases. To accept petitioner's argument would virtually obliterate the distinction, solidly grounded in our cases, between prior restraints and subsequent punishments."

Id , at