United States v. Mongol Nation ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 19-50176
19-50190
Plaintiff-Appellee/
Cross-Appellant, D.C. No.
2:13-cr-00106-
v. DOC-1
MONGOL NATION,
Unincorporated Association, OPINION
Defendant-Appellant/
Cross-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted September 23, 2022
Pasadena, California
Filed January 6, 2023
Before: Sandra S. Ikuta, Danielle J. Forrest, and Holly A.
Thomas, Circuit Judges.
Opinion by Judge H.A. Thomas
2 UNITED STATES V. MONGOL NATION
SUMMARY *
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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.
COUNSEL
George L. Steele (argued), Law Office of George L. Steele,
La Cañada, California; Stephen P. Stubbs, Las Vegas,
Nevada; for Defendant-Appellant.
Bram M. Alden (argued), Assistant United States Attorney,
Criminal Appeals Section Chief; Christopher Brunwin,
Assistant United States Attorney; Tracy L. Wilkison, Acting
4 UNITED STATES V. MONGOL NATION
United States Attorney; Office of the United States Attorney,
Los Angeles, California; for Plaintiff-Appellee.
John D. Loy, David E. Snyder, and Monica N. Price, First
Amendment Coalition, San Rafael, California, for Amici
Curiae First Amendment Coalition and California Attorneys
for Criminal Justice.
OPINION
H.A. THOMAS, Circuit Judge:
This case concerns the Government’s ability to prosecute
an unincorporated association for violations of the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. §§ 1961 et seq., and to subsequently seek forfeiture
of that association’s intellectual property.
Defendant Mongol Nation is an unincorporated
association whose members include the official, or “full-
patch,” members of the Mongols Gang. The Government has
been prosecuting the Mongols Gang since at least 2008,
leading to the convictions of more than 70 individual
members under RICO and various other criminal statutes.
Following those convictions, the Government indicted
Mongol Nation (the unincorporated association) on charges
of substantive RICO and RICO conspiracy violations. A jury
convicted the association on both charges. It also found
various forms of Mongol Nation property forfeitable. That
property included certain 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 under the
UNITED STATES V. MONGOL NATION 5
circumstances of this case forfeiture would violate the First
and Eighth Amendments.
Mongol Nation appealed its conviction and sentence,
and the Government cross-appealed the order denying
forfeiture of the marks. The parties’ cross-appeals present
two issues. First, did the district court lack jurisdiction
because Mongol Nation does not qualify as a “person” as
defined by RICO; and second, did the district court err in
denying forfeiture of the Mongol Nation marks?
We affirm. There was no defect in the district court’s
jurisdiction stemming from RICO’s definition of “person,”
and we agree with the district court that denial of forfeiture
was appropriate under these circumstances.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
Defendant Mongol Nation is “an unincorporated
association comprised of ‘official’ or ‘full-patch’ members
of the Mongols Gang,” a violent, drug trafficking
organization. United States v. Mongol Nation, 693 F. App’x
637, 638 (9th Cir. 2017). 1
The current proceedings against Mongol Nation are the
latest step in a series of related prosecutions, including the
prior prosecutions and guilty pleas of dozens of individual
members of the Mongols Gang. 2 Because those prior
1
The phrase “full patch” refers to the Mongols Gang’s practice of issuing
incentives, such as tattoos and patches, to reward its members for, among
other things, their commission of violent acts.
2
Of the 79 gang members originally indicted, 77 pleaded guilty, one died
before the disposition of any charges, and one was found not competent
to stand trial.
6 UNITED STATES V. MONGOL NATION
prosecutions also involved attempts by the Government to
effect forfeiture of the collective membership marks at issue
here, we briefly recount the history of those earlier
proceedings.
A. Prior Related Proceedings: Cavazos and Rivera
In its earlier prosecution of individual Mongols
members—including that of the former leader of the
Mongols, lead defendant Ruben Cavazos, Sr.—the
Government sought forfeiture of two registered collective
membership marks owned by Mongol Nation.3 Cavazos,
2011 WL 13143670, at *1; id., ECF No. 1 (Indictment);
3
The first mark at issue in that case was the word, “MONGOLS,” and
the second mark was an image that depicts an individual seated on a
motorcycle and contains the initials “M.C.” See Rivera v. Carter, No.
2:09-cv-2435, 2009 WL 8753486, at *1 & n.1 (C.D. Cal. July 31, 2009);
see also note 5, infra.
Sometime after October 22, 2008, Mongol Nation was incorporated in
California under the full name Mongols Nation Motorcycle Club, Inc.
United States v. Cavazos, No. CR08-01201, 2011 WL 13143670, at *2
(C.D. Cal. June 28, 2011). Before that, Mongol Nation had been using
the “MONGOLS” and “M.C.” marks since approximately 1969. Rivera,
2009 WL 8753486, at *6; see also Order, Cavazos, 2011 WL 13143670,
ECF No. 4481 at 1. Either Mongol Nation or Mongols Nation
Motorcycle Club, Inc. have continued to use the marks for membership
identification since that time. Rivera, 2009 WL 8753486, at *6; see also
Order, Cavazos, 2011 WL 13143670, ECF No. 4481 at 1.
As the district court explained in Rivera, because they have used the
collective membership marks continuously since 1969 (and have also
registered the marks), Mongols Nation Motorcycle Club, Inc. and
Mongol Nation “have acquired and maintained exclusive ownership in
the collective membership mark[s] at issue.” Rivera, 2009 WL 8753486,
at *6; see also Order, Cavazos, 2011 WL 13143670, ECF No. 4481 at 1;
see also United States v. Mongol Nation, 370 F. Supp. 3d 1090, 1119
(C.D. Cal. 2019).
UNITED STATES V. MONGOL NATION 7
Rivera, 2009 WL 8753486, at *1 & n.1. Pursuant to an
application by the Government, the district court enjoined
the Cavazos defendants from taking “any action that would
affect the availability, marketability or value of the
MONGOLS trademark” and ordered defendants “to
surrender for seizure all . . . [items] bearing the [mark].”
Rivera, 2009 WL 8753486, at *1.
In response to that order, Ramon Rivera—a member of
Mongol Nation who was not charged in Cavazos—filed a
civil action seeking an injunction to prevent the Government
from seizing property based solely on the fact that it bore the
relevant marks. Id., ECF. No. 1 (Complaint). The district
court granted a preliminary injunction. It found that Mongol
Nation (the unincorporated association) and Mongols Nation
Motorcycle Club, Inc. were the exclusive owners of the
marks, rather than Cavazos or any other individual member
of the organizations, and that the marks were therefore not
forfeitable under RICO in the context of the Cavazos
prosecutions. Rivera, 2009 WL 8753486, at *7. 4 The district
court ultimately granted summary judgment to Rivera. Id.,ECF No. 90 (Summary Judgment Order).
Meanwhile, criminal proceedings continued in Cavazos.
Following Cavazos’ guilty plea, the Government continued
to seek forfeiture of the marks. See Cavazos, 2009 WL
10680370, at *1–3. On June 15, 2010, the district court
entered a preliminary order of forfeiture (POF) concerning
the marks, finding that they “b[ore] some nexus to the
4
In dicta, the district court also made some “observations regarding the
application of the First Amendment to th[e] case,” including its tentative
conclusion that plaintiff Rivera had a right protected by the First
Amendment’s freedom of association to display the Mongols’ collective
membership marks. Id. at *10–11.
8 UNITED STATES V. MONGOL NATION
criminal enterprise in which . . . defendants were involved.”
Id. at *1, 3. In response, Mongols Nation Motorcycle Club,
Inc. filed a petition to vacate or amend the order under 18
U.S.C. Section 1963(l), asserting a property interest in the
marks. Id. at *1.
The district court granted Mongols Nation Motorcycle
Club, Inc.’s petition and vacated the POF. It concluded that
the marks were not forfeitable because: (1) RICO authorizes
forfeiture only of property belonging to a defendant, and
(2) the “club,” rather than any indicted defendant,
maintained exclusive ownership of the marks. See id. at *3–
4.
B. The Present Proceedings against Mongol Nation
Following those earlier prosecutions, Mongol Nation,
the defendant in this case, was indicted for substantive RICO
and RICO conspiracy violations.
Mongol Nation successfully moved the district court to
dismiss the indictment “on the ground that there is no
meaningful distinction between the association Mongol
Nation and the enterprise of the Mongols Gang.” Mongol
Nation, 693 F. App’x at 637 (internal quotation marks
omitted). We reversed, holding that “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.” Id. at 638. We declined to
address Mongol Nation’s challenges to the Government’s
efforts to effect forfeiture of the Mongols’ membership
marks as “premature” and “not ripe for review.” Id.
On remand, the Government filed a superseding
indictment (FSI), and the case proceeded to a jury trial. The
jury found Mongol Nation guilty on two counts: substantive
UNITED STATES V. MONGOL NATION 9
RICO (Count I) and RICO conspiracy (Count II). See 18
U.S.C. § 1962(c)–(d). Mongol Nation filed post-trial
motions for judgment of acquittal and for a new trial, which
were denied.
The FSI also contained forfeiture allegations. The
Government sought forfeiture of (among other things): “(1)
all rights associated with the collective membership marks
described in the FSI and the Government’s Bills of
Particulars . . . (collectively, the ‘Marks’)”; and (2) “items of
personal property bearing any of the Marks, which . . . were
seized in connection with [the investigation].” 5 See Mongol
5
Images of the three Marks at issue in this case are reproduced below:
At some point, all three Marks were registered with the U.S. Patent and
Trademark Office. At the time the district court was considering whether
10 UNITED STATES V. MONGOL NATION
Nation, No. CR 13-0106-DOC-1 (C.D. Cal.), ECF Nos. 264
(Gov’t’s Forfeiture Mem.), 269 (Gov’t’s Third Bill of
Particulars).
The district court conducted a jury trial on the forfeiture
allegations. The jury found that none of the relevant property
was forfeitable under Count I—the substantive RICO count.
As for Count II—the RICO conspiracy count—the jury
found the following property forfeitable: (1) the Marks,
(2) relevant items bearing the Marks, and (3) weapons,
ammunition, and body armor. Following the forfeiture trial,
the Government filed a motion for a POF concerning that
property under RICO, 18 U.S.C. § 1963, including forfeiture
of all rights associated with the Marks.
The district court denied the Government’s POF motion
in part. The district court granted the requested forfeiture of
the Mongols’ weapons, ammunition, body armor, and
specific Mongols property seized during raids by federal
agents. But it denied forfeiture of the “rights associated”
with the “collective membership marks” on the ground that
forfeiture in these circumstances would violate the First and
Eighth Amendments. Mongol Nation, 370 F. Supp. 3d at1114–16, 1120.
As to the First Amendment, the district court held that
forfeiture of all rights to the Marks would impermissibly
prevent or discourage Mongols members from displaying
the Marks. Id. at 1112–13. The district court reasoned that
such display constitutes “expressive conduct . . .
communicat[ing] a person’s association with the Mongol
Nation, and his or her support for their views.” Id. According
to grant forfeiture, two of the marks were registered and one registration
had been cancelled.
UNITED STATES V. MONGOL NATION 11
to the district court, the first “POF—which would vest title
[to the Marks] in the United States—[would] function[] as a
prior restraint on future speech” and also regulate speech
based on its content. Id. at 1114. Applying strict scrutiny
review, the court concluded that the POF was not sufficiently
tailored to the Government’s compelling interest in
punishing and dismantling criminal organizations.
Id. at 1114–15.
Turning to the Eighth Amendment, the district court
reasoned that the first POF would violate the amendment’s
prohibition on excessive fines because forfeiture of the
Marks would be “harsh and grossly disproportionate” to
Mongol Nation’s crime of RICO conspiracy. Id. at 1119. The
district court reasoned that the Marks, which “were acquired
in 1969 upon first use and have been maintained through
continuous use for decades[,] . . . have immense intangible,
subjective value to the Mongol Nation and its members,”
which outweighs the gravity of the RICO conspiracy
offense. Id. at 1120. Accordingly, the district court found
that the first POF would violate the “gross disproportionality
test to determine Constitutional excessiveness” under the
Eighth Amendment. See id. at 1118.
While the district court rested its denial of the first POF
upon these two constitutional grounds, its opinion also
included some “observations regarding the feasibility of any
transfer of the collective membership marks” under
trademark law. Id. at 1121. The district court ultimately
concluded that transfer of the marks “may not be legally
possible” under trademark principles. Id. at 1121–25.
Following the district court’s decision denying the first
POF, the Government filed a second, narrower forfeiture
application concerning the Marks. This second POF was
12 UNITED STATES V. MONGOL NATION
designed specifically to “mitigate [the aforementioned]
constitutional concerns.” Instead of providing for transfer of
the Marks to the Government, the second proposed POF
provided:
Defendant shall and hereby does forfeit any
and all right(s) it holds as the owner of the
Marks, whether pursuant to federal, state or
common law, to limit, restrain, or in any way
prohibit, through legal process or otherwise,
any other individual or entity from using or
displaying the Marks, in commerce or
otherwise. Defendant’s title to the Marks is
hereby extinguished, but such title is not
transferred to, and shall not vest in, the
United States. See 18 U.S.C. § 1963(f). This
order does not, and shall not, have any
[e]ffect on the right(s) of Defendant and its
individual members to continue their lawful
use and display of the Marks.
The district court summarily denied this second POF as
well. At sentencing, the district court referenced its order
denying the first POF, reaffirming its conclusion that the
“collective membership marks are not forfeitable” under the
First and Eighth Amendment. The district court granted
forfeiture of the Mongols’ “tangible” property, like the vests,
patches, and clothing bearing the Marks, as well as the
Mongols’ weapons and armor. But the district court denied
forfeiture of the rights concerning the Marks. The court also
sentenced Mongol Nation to five years’ probation and
imposed a $500,000 fine and an $800 special assessment.
UNITED STATES V. MONGOL NATION 13
Mongol Nation timely appealed its conviction and
sentence. The Government timely cross-appealed the denial
of the second POF.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. Section 1291. We
review de novo questions of law, including constitutional
issues, see United States v. Kuchinski, 469 F.3d 853, 857
(9th Cir. 2006), and questions of statutory interpretation, see
United States v. Paulk, 569 F.3d 1094, 1095 (9th Cir. 2009).
Arguments seeking to overturn a criminal jury’s verdict that
are not renewed in a post-trial motion for judgment of
acquittal are reviewed for plain error. United States v.
Eriksen, 639 F.3d 1138, 1148 (9th Cir. 2011). “Plain error is
(1) an error that (2) is plain, (3) affects substantial rights, and
(4) seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v.
Blinkinsop, 606 F.3d 1110, 1114 n.2 (9th Cir. 2010).
A district court’s decision not to impose a forfeiture
judgment is reviewed de novo. United States v. Phillips, 704
F.3d 754, 762 (9th Cir. 2012).
III. DISCUSSION
We first consider Mongol Nation’s appeal, in which it
argues that its conviction and sentence must be vacated
because it is not an indictable “person” under RICO. It is
undisputed that Mongol Nation never raised this argument
in the district court. We conclude that this unpreserved
argument is non-jurisdictional, and that Mongol Nation has
not established that the district court plainly erred by not
dismissing the indictment.
We next turn to the Government’s cross-appeal of the
order denying the second POF. We conclude that forfeiture
14 UNITED STATES V. MONGOL NATION
was correctly denied, although for different reasons than the
district court. Because we conclude that RICO’s plain text
renders the Government’s second POF a legal impossibility,
we need not decide whether forfeiture of the Marks would
violate the First and Eighth Amendments.
A.
Mongol Nation contends that it does not qualify as a
“person” under RICO and that the indictment against it
should therefore have been dismissed for lack of jurisdiction.
It reasons that (1) RICO limits the definition of “person” to
entities capable of holding a legal or beneficial interest in
property, 18 U.S.C § 1961(3); (2) under California law,
unincorporated associations, like Mongol Nation, can own
property, but only if the association exists for a “lawful
purpose,” Cal. Corp. Code §§ 18035(a), 18105; and (3) the
indictment expressly alleged that Mongol Nation exists
exclusively for an unlawful purpose. Mongol Nation argues
that it thus cannot qualify as either a property-owning
unincorporated association under California law or, by
extension, a RICO “person.”
The Government argues that Mongol Nation has waived
this argument by failing to raise it in a pre-trial challenge to
the indictment under Federal Rule of Criminal Procedure
12(b)(3), or, in the alternative, that Mongol Nation’s claim,
which it did not raise in a post-trial motion for judgment of
acquittal, does not amount to plain error. See Eriksen, 639
F.3d at 1148 (explaining that arguments not renewed in a
motion for judgment of acquittal are reviewed for plain
error). While it is undisputed that Mongol Nation did not
raise this argument below, Mongol Nation responds that the
issue is jurisdictional, and therefore not waivable.
UNITED STATES V. MONGOL NATION 15
Mongol Nation’s attempt to characterize its challenge to
the indictment as “jurisdictional” is meritless. As a threshold
matter, “[i]n every federal criminal prosecution, subject-
matter jurisdiction is conferred by 18 U.S.C. § 3231.” United
States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). Because
“a district court has jurisdiction of all crimes cognizable
under the authority of the United States[,] . . . the objection
that the indictment does not charge a crime against the
United States”—for instance, by failing to charge a statutory
“person”—“goes only to the merits of the case.” United
States v. Cotton, 535 U.S. 625, 630–31 (2002) (alterations
omitted) (quoting Lamar v. United States, 240 U.S. 60, 65
(1916)).
We do not resolve the government’s contention that
Mongol Nation has waived its argument concerning RICO
personhood and that review of this issue is governed by
Federal Rule of Criminal Procedure 12(c)(3). Even assuming
Mongol Nation’s argument is not waived and is thus
reviewed for plain error, the argument fails.
Mongol Nation proceeds from a faulty premise. It
contends that it cannot qualify as a RICO person because the
indictment alleges that the association was organized for
unlawful purposes only. Regardless of the merits of this
argument—a matter about which we express no view—it
mischaracterizes the allegations in the indictment
concerning the association’s purpose. The indictment alleges
that “[t]he purposes of the Mongols Gang . . . included, but
were not limited to,” several unlawful purposes. Because the
indictment expressly contemplated that the association may
exist for other purposes—perhaps including lawful ones—it
is not facially inconsistent with Mongol Nation’s
interpretation of the definition of “person” in the RICO
statute, even if we assume that interpretation is correct. As
16 UNITED STATES V. MONGOL NATION
this fundamental premise of Mongol Nation’s challenge to
the indictment fails, it cannot establish that the district court
plainly erred by allowing it to be prosecuted under RICO.
B.
We next consider the Government’s cross-appeal from
the district court’s denial of the second POF.
After a guilty verdict in a criminal case, a district court
“must determine what property is subject to forfeiture under
the applicable statute” for “any count in an indictment or
information regarding which criminal forfeiture is sought.”
Fed. R. Crim. P. 32.2(b)(1)(A). Here, RICO’s penalty
provision mandates forfeiture of (among other things) (1)
any interest the defendant has acquired or maintained in
violation of RICO; (2) any property or contractual right of
any kind affording a source of influence over a RICO
enterprise; and (3) any property constituting, or derived
from, any proceeds obtained from racketeering activity in
violation of RICO. 18 U.S.C. § 1963(a). Both “tangible and
intangible personal property” are subject to forfeiture under
this provision. Id. § 1963(b)(2).
Where, as here, the Government seeks forfeiture of
specific property, the factfinder must determine whether the
Government has “established the requisite nexus between
the property and the offense.” Fed. R. Crim. P.
32.2(b)(1)(A), (b)(5). When the jury finds such a nexus,
RICO “provides no discretion:” forfeiture is mandatory.
United States v. Busher, 817 F.2d 1409, 1415 (9th Cir.
1987); see also 18 U.S.C. § 1963(a) (defendants “shall
forfeit” covered property). Nevertheless, “the district court
must avoid unconstitutional results by fashioning forfeiture
orders that stay within constitutional bounds.” Busher, 817
F.2d at 1415. Where there are dispositive “statutory
UNITED STATES V. MONGOL NATION 17
grounds” for denial of forfeiture, the court “need not reach
[any] constitutional issue.” See United States v. Kenney, 789
F.2d 783, 784 n.2 (9th Cir. 1986).
Here, the district court held that both the first and second
POFs would violate the First and Eighth Amendments and
suggested (though did not hold) that forfeiture of the Marks
would also be effectively impossible under principles of
trademark law. We need not decide whether these
conclusions, including the district court’s constitutional
holdings, were correct. We find that forfeiture here was
improper for a different reason—namely, the Government’s
contemplated method of forfeiture is not permitted by
RICO’s forfeiture provision. We therefore affirm on this
basis without reaching the district court’s constitutional
rationales. 6 Because we decide on these grounds, we also do
not reach the question whether the Marks may be forfeitable
without the transfer of any goodwill associated with the
Marks, or any other trademark issues.
We begin by examining whether and how ownership of
the Marks would purportedly transfer from Mongol Nation
to the Government under the second POF. Presumably in an
effort to neutralize the district court’s constitutional
concerns with the first POF, the Government’s second POF
sought to “forfeit[] only . . . narrowly-defined intellectual
property rights . . . that are associated with the Marks.”
6
“We may affirm a district court’s judgment on any ground supported
by the record, whether or not the decision of the district court relied on
the same grounds or reasoning we adopt.” Atel Fin. Corp. v. Quaker Coal
Co., 321 F.3d 924, 926 (9th Cir. 2003). And “this court must apply its
view of the law as it sees it,” even where the parties have failed to address
a dispositive question of law. United States v. Comstock Extension Min.
Co., 214 F.2d 400, 403 (9th Cir. 1954).
18 UNITED STATES V. MONGOL NATION
Specifically, the POF sought to extinguish those rights
Mongol Nation “holds as the owner of the Marks, whether
pursuant to federal, state or common law, to limit, restrain,
or in any way prohibit, through legal process or otherwise,
any other individual or entity from using or displaying the
Marks, in commerce or otherwise.”
The second POF further provided that while
“Defendant’s title to the Marks [would be] extinguished,”
title to the Marks would “not transfer[] to, and shall not vest
in, the United States,” nor would the order “affect . . . the
right(s) of Defendant and its individual members to continue
their lawful use and display of the Marks.” In short, 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.
In trying to mitigate the constitutional problems the
district court raised in addressing the first POF, the
Government has created a new problem: the method of
forfeiture contemplated by the second POF is precluded by
the plain language of RICO’s forfeiture provision. The
RICO statute provides that “all right, title, and interest in
property [forfeitable under RICO] vests in the United States
upon the commission of the act giving rise to forfeiture under
this section.” 18 U.S.C. § 1963(c) (emphasis added). But as
explained above, the entire premise of the second POF is that
it “expressly would not vest title to the forfeited marks in the
government.” Gov’t’s Reply at 24. The second POF is thus
facially inconsistent with RICO’s forfeiture provision:
RICO provides no mechanism for forfeiture to occur without
a transfer of title to the Government. Denial of the POF was
therefore warranted on these grounds.
UNITED STATES V. MONGOL NATION 19
When confronted with this conflict between the text of
RICO’s forfeiture provision and its second proposed POF at
oral argument, the Government responded that we should
remand to the district court with directions to enter the first
POF if vestiture of title to the Marks is statutorily required
under RICO. The Government, however, never appealed the
district court’s denial of its first POF, choosing instead to
propose the second POF at issue here. We therefore decline
to reach any issues regarding the propriety of entry of the
first POF.
* ** *
Mongol Nation’s unpreserved argument regarding
RICO’s definition of “person” and the Government’s
challenge to the denial of its second POF each fail. The
district court’s judgment is in all respects
AFFIRMED.