RICO forfeiture: the DOJ's tool to rob, plunder, and punish the unindicted collective membership of targeted motorcycle clubs.

December 25, 2018

       The United States Department of Justice (DOJ) purports to the general public, as well as all persons accessing the World Wide Web, that part of its "mission is ... to ensure fair and impartial administration of justice for all Americans." [Fn.1] This, of course, is far more rhetorical than real when you become aware of the DOJ's insidious abuse of civil and criminal forfeiture laws in its crusade to seize heirlooms, innocuous items of clothing, club memorabilia, memorials, etc., from the unindicted collective membership of the Outlaws Motorcycle Club (OMC). Stooping even lower, is the conscience-shocking seizure of headstones commemorating deceased OMC members.

       Asset forfeiture has become a routine part of federal criminal law enforcement now that the DOJ has "a direct pecuniary interest in the outcome of the [forfeiture] proceeding[s]." [Fn.2] Before 1985, proceeds from asset forfeitures went into a general fund that Congress controlled. In 1986, the DOJ took over direct control of the forfeiture fund which had roughly $94 million in deposits from asset forfeiture. By 2008, the number was $1 billion; by 2010 it was $2.5 billion; and currently the government is on a $4.4 billion annual pace.

       The DOJ is literally addicted to forfeitures in a never-ending effort to fill its coffers with billions in U.S. currency. Furthermore, and recognized by the U.S. Supreme Court, forfeiture is indeed "improperly used ... [as] a tool wielded to punish those who associate with criminals, [rather] than a component of a system of justice." [Fn.3] Federal law enforcement agencies, including the DEA, FBI, ATF, and the agencies of the Department of Homeland Security, "initiate tens of thousands of administrative forfeiture cases every year, and federal prosecutors file civil and criminal forfeiture actions in federal courts in thousands of cases as well. New forfeiture cases are decided every week, making it difficult for the courts themselves, as well as practitioners, to keep current." [Fn.4] As explained further in this posting, the collective membership of the OMC knows firsthand of how "the broad forfeiture provisions carry the potential for Government abuse and can be devastating when used unjustly." [Fn.5]

       A criminal defendant convicted of violating the Racketeer Influenced and Corrupt Organizations Act (RICO) forfeits his or her interests in the RICO enterprise, assets acquired in violation of the Act, and any proceeds derived from the defendant's racketeering activity. To be derived from racketeering activity means that the property was obtained, directly or indirectly, from the proceeds of the pattern of the racketeering. In addition, property "affording a source of influence over" the charged RICO enterprise is subject to forfeiture. See 18 U.S.C. § 1963(a)(2)(D). An example of the congressional intent of such property would be a legally purchased and owned automobile that was otherwise used to collect and transport gambling debts. In other words, property affording a source of influence is only subject to forfeiture to the extent it is tainted by the racketeering activity.

       For nearly 80 years, the federal courts have held as a matter of law that, "[f]orfeitures are not favored in the law and should be enforced only within both the letter and spirit of the governing provisions." [Fn.6] This sounds good, but in reality, legal scholars recognize that the DOJ's interpretation of RICO forfeiture appears to be "limited only by the prosecutor's ingenuity or, as the case may be, his restraint." Quoting William W. Taylor, III, The Problem of Proportionality in RICO Forfeitures, 65 Notre Dame L. Rev. 885, 888 (1990).

DOWN THE RABBIT HOLE OF DOJ FRAUD


       Whether motivated by malice or creative zeal, in 2010, and again in 2012, DOJ consiglieres & prosecutors came up with an innovative scheme to seize and forfeit literally truckloads of clothing and memorabilia bearing the registered collective membership marks of the OMC, Inc., from the uncharged collective membership of the OMC by grossly extending the congressional intent of what constitutes property "affording a source of influence over" a charged RICO enterprise.


       Reminiscent of invading North Korean and Chinese communist troops stripping, plundering, and parading clothing as well as emblems of KIA and captured American soldiers during the war in South and North Korea back in the early 1950s, so too the DOJ began executing a strikingly similar campaign against the OMC. Over the last decade the DOJ has been seizing and subsequently forfeiting trademarked items of clothing and memorabilia from the unindicted collective membership of the OMC, (as well as from other "outlaw motorcycle clubs" [Fn.7]) to include, but not limited to: leather vests; club logos & patches; t-shirts; sweatshirts; hats; belts; buckles; rings; banners; mirrors; flags; calendars; books; pictures; records; and commemorative plaques & photos of retired and deceased members (and in some cases, their actual cremated remains). It appears that the DOJ has unleashed something of a de facto ethnic cleansing to eradicate decades of the OMC's heirlooms and heritage which had been previously preserved and passed on over several decades for posterity. The government's manipulation of the RICO forfeiture statute—18 U.S.C. Section 1963(a)(2)(D), flat-out omission of material facts, silence on conclusive evidence, along with its utter disregard for the Federal Rules of Criminal and Civil Procedure have been a means and methods in its conspiracy to plunder and stockpile a veritable smorgasbord of club-related patches and memorabilia from the OMC and other targeted motorcycle clubs. [Fn.8]

THE DOJ'S "FAIR AND IMPARTIAL ADMINISTRATION OF JUSTICE FOR ALL AMERICANS?"


       Further exemplifying the DOJ's attitude of invincibility and unaccountably, do not ever expect proper statutory or constitutional notice of forfeiture from this branch of the government; the rule of law means nothing to the DOJ in forfeiture proceedings. [Fn.9] More startling, and something similar to a rigged poker game, an unconstitutional alignment between prosecutors and former federal prosecutors that are now appointed to the bench for lifetime tenures have inescapably assisted DOJ prosecutors and its counterintelligence operatives [Fn.10] in their quest to stockpile the OMC's very history. When juxtaposed with the verified, unconverted evidence submitted by representatives of the OMC which thoroughly proved the club's property was not subject to forfeiture—and utterly ignored by the courts—a reasonable observer would indeed find that the decisions started off with a desired result, reasoned backwards, and were clearly based on something other than the merits.

       In the end, too often the DOJ act as if their role is not to protect constitutional rights but rather to see how far they can bend them before the courts step in.

     [Fn.1]  See About The Department of Justice, available at: https://foia.gov

     [Fn.2]  Quoting United States v. James Daniel Good Real Property, 510 U.S. 43, 56 (1993).

     [Fn.3]  Quoting Bennis v. Michigan, 516 U.S. 442, 456 (1996)(Justice Clarence Thomas, J., concurring).

     [Fn.4]  Quoting Stefan D. Cassella, Asset Forfeiture Law in the United States, New York: Juris Net, LLC (2006).

     [Fn.5]  Quoting Libretti v. United States, 516 U.S. 29, 43 (1995).

     [Fn.6]  Quoting United States v. One 1987 Mercedes Benz 300E, 820 F. Supp. 248, 251 (E.D.Va. 1993)(citing United States v. One Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226 (1939)).

     [Fn.7]  The term, "outlaw motorcycle club," does not denote criminal activity. It came about decades ago from a belief that "[o]utlaw motorcycle clubs are simply motorcycling organizations that do not hold American Motorcyclist Association (AMA) charters." See William L. Dulaney, PH.D., A Brief History of Outlaw Motorcycle Clubs, International Journal of Motorcycle Studies (Nov. 2005), available at: http//ijms.nova.edu/November2005/IJMS_Artcl.Dulaney.html. The term "1%er" is the result of a July 21, 1947 sensationalized story in Life magazine titled: “Cyclist's Holiday: He and Friends Terrorized Town.” It was purported by some authors that the AMA subsequently released a press statement stating "that 99% of motorcyclists are good, decent, law-abiding citizens" which the AMA claims it has no record of ever releasing such a statement. (Quoting William L. Dulaney). Afterwards, motorcycle clubs across the country jokingly stated that they were the other 1% of rowdy bikers. However, this truth was apparently inconvenient to the regime's preferred narrative. As the years have passed, law enforcement and prosecutors alike have employed a good dose of misinformation and its cousin, deliberate disinformation, to revise the true history of the 1%er symbol or label for their desired needs in criminal prosecutions of defendants that are also members of a motorcycle club that identifies with the one percenter moniker.

     [Fn.8]  The animus and absurdity of the government's seizures of trademarked indicia and memorabilia from the uncharged collective membership of the OMC, and purporting it as "assets" subject to RICO forfeiture under 18 U.S.C. §1963(a)(2)(D), can be seen by looking at the logical extension of it. To illustrate, RICO violations may be proved against individuals that commit criminal acts within any legal organization or any association. Indeed, a former Penn State University assistant football coach, in part, used the allure of his position, and the facilities at the university to accomplish the sexual abuse of 10 boys over the course of 15 years. More so, the pedophile football coach was allegedly sheltered and protected from law enforcement by high-ranking university officials, who knew of the criminal acts but obstructed justice by not reporting them, while seeking to keep Penn State from stigma and culpability. The acts of the university officials were done to maintain, enhance, or protect their status within Penn State. Such activities, if proven, are RICO crimes, but a RICO conviction for those individuals would not make Penn State itself a criminal organization. However, under the DOJ's innovative scheme and theory of forfeiture against the OMC's indicia and memorabilia, warrants could be procured to seize and forfeit all memorabilia of Penn State, such as: football jerseys; t-shirts; sweatshirts; hats; trophies; commemorative photos; etc.; because it constitutes property "affording a source of influence over" the RICO enterprise.

     [Fn.9]  The law clearly mandates: "If the court orders the forfeiture of specific property, the government must publish notice of the order AND send notice to any person who reasonably appears to be a potential claimant with standing to contest the forfeiture in the ancillary proceeding." Quoting Federal Rule of Criminal Procedure 32.2(b)(6)(A). To avoid ancillary proceedings, the DOJ will merely post notice for thirty consecutive days on its quasi-secret, official internet forfeiture site at: www.forfeiture.gov. Most courts appear to be condoning the DOJ's blatant disregard for statutory and constitutional law regarding proper notice of a forfeiture.

     [Fn.10]  Counterintelligence operatives specialize in the innovation and concealment of an extraordinary range of insidious means and methods designed "towards dismantling and eliminating [the Outlaws MC] and their membership through the application of unique investigative techniques." Quoting the Midwest Outlaw Motorcycle Gang Investigators Association (MOMGIA) website at: www.midwestomgia.org (accessed September 1, 2014)(now removed). The MOMGIA and similarly situated enterprises, such as the MCIO and IOMGIA, are thinly veiled vigilante groups aimed squarely at preventing the exercise of First Amendment rights. They have an undaunted, almost fanatical zeal to possess "colors" and other memorabilia of outlaw motorcycle clubs as trophies and for use as props in murderous "investigative techniques." (Examples of this phenomena will be coming soon).