good morning your honour's may it please the court actually all for the united states with the court's permission i'd like to reserve about three minutes for rebuttal the order dismissing in the end the indictment in this case must be reversed the district court committed legal  fairly textual approach to the distinctness requirement saying at the way that one thousand nine hundred sixty two c and d had been phrased suggest that there did have to be a difference between the person alleges the defendant and the enterprise that that defendant was employed by or associated with  i think that textual distinction is a proper one i would say under the statute that in order for a person to be associated with or employed by a particular enterprise it certainly suggests that that enterprise should be broader than that person and as a result under cedrick question are  living designs the test this court is articulated i think followed that same sort of shape of the venn diagram which is that the enterprise charge has to be different from neither the same as nor a part of the defendant so you are fishing  n your view if the person is subset of the enterprise yes it has to in terms of distinctness absolutely the person also has to meet the definition of person under rico as an entity capable of holding property there's not a does not a dispute here at this one would be but yes i would submit that if the person is a subset of the enterprise that is tip that would be sufficient that said the test this court articulated the test in really two different ways i think they reach the same place but the first way is that as i already said that the enterprise has to be different from and i do the same as ignore a part of the charge defendant or alternatively using language that originally came from the seventh circuit and then was adopted by cedric cushion or that there has to be a legal or practical separation between the defendant and the enterprise and i would submit that either under either articulation of the test the facts are more than sufficient here putting aside  general error which i'll get to in a second which i think has to do with analyzing these pleadings under a criminal standard because the indictment alleged that the defendant is an unincorporated association called the mongol nation and notably this isn't an entity of the government's creation this is a in an entity that exists it registered the gangs trademarks it has existed for decades before that it has from time to time transferred its rights in the marks to other incorporated and these back and forth it is has defined itself  o filings as an unincorporated association it has defined itself as a comprising only full patched members of the gang and it is identified itself as an entity that has long held the gang's intellectual property and so concerns about our full pleading really are all applied here the facts i will agree are strange but they're strange because reality is strange in this case and we have the instance where a gang has created an entity to hold its trademark rights and that entity in addition to having  i would say there are i guess i'll have one key answer which is that the registration of trademarks by a gang gives that gang the right to go to federal court and enforce its violent territory and its gang rights using the power of the courts that is a huge distortion of the federal trademark system and i think it is extremely righteous for the government to try to strip a gang of the power to expand its own value and territory with the use for that right the company the law firms an expert exodus so it seems like that was here well let me just hear you have the mongol nation right and then you have the mongol nation plus the up and comers who want to be part of the mongol nation is that right and also associates that have no desire to be members and women who cannot be members does that hang around as the general the hang around so it seems like all you're adding are the probationary or prospective members and i hang around hers and how i'm just to have been a hard time figuring out how they can be distinct and how they're equivalent to the law firm in living designing i would in my view living designs is actually a harder case i think conceiving of a litigation enterprise such that any any entity that hires lawyers to defend itself in court can automatically become an enterprise along that hires outside law firms i think that's a really hard sell i would submit it's actually easier in this case if you think of the mongol nation as a person think of it as all of the members of the mongol nation all the full patch members just imagine that really were a person and that person has joined with other people that are not the same as it control is not the test control or relationship in fact it just goes to the existence of an end of an enterprise in fact i have just heard also relevant to separateness because as i understood it the overall gang has a completely separate governing structure with mother chapter if you want to call it the mother honor that this is no different from many rico cases where gangs are charged the way that gangs are charged under rico typically separates out members from associates from hang around as the term here and in those cases too you could say well if you limit all of the members of the gang you're just left with these associates but that's the point the members and associates together form the association in fact and taking a step back and going to my original point about criminal pleading standards i think the really important thing here is that the district court lost sight of the very straightforward standards for analyzing criminal pleadings it's a constitutional standard typically all the government need do is allege the elements of the offense we far exceeded that standard here and importantly what we did not allege we did not allege a strict agency relationship between all the member all the hang around and the mongol nation we did not allege to hang around or employees of some corporations such that would fall under the yellow bus case or any of the other cases cited by the defendant we didn't allege those things and judged by the face of the indictment instead we alleged a unincorporated association an entity recognized by california law that itself has a distinct role in the enterprise and is not either broader than or just having the enterprise be a part of itself instead it is smaller than the enterprise includes other members and it plays a different function in the overall charge enterprise with the court's permission i'd like to because they were the wandering warriors who were sent by the nation to fight bleed and die if necessary and the ones that didn't die were lucky enough to come home doesn't this doesn't help us with the question we're faced with that let's assume that th ey're great guys it's a great club we're going from there bashing on a really i think a common sense approach which has been urged by the government is the one that we should take him there was a prior case in which seventy nine men were indicted and people took plea bargains i won't debate the value of plea bargains but in that case a related case by the way it's not just a separate and distinct case that's floating out there somewhere the government in their first in this case stated that this case was a related case to the prior night two thousand and eight litigation and that means that arises out of the same core of operative facts involved the alleged same alleged conspiracy et carter kept saying who's going to jail here nobody's going to jail the men who have allegedly done something wrong have gone to jail it's no different than the l a county sheriff let me ask you so what's why isn't this who had its own separate legal identity and ethical obligations and duties of can do with the court you had experts who had by the mh it to be separate and distinct from both the client and the law firms to qualify as experts in a case they all had existence that did not dictate that they sit there and wait at the beck and call but let me ask you about that the government alleges that the unincorporated association of an unincorporated association that didn't just exist in the context of the indictment and exist it elsewhere to register the trademarks correct  at the time it was an unincorporated association and is it also correct that think yankee overall gang includes other human beings besides the ones who form this unincorporated a ssociation the women that hang around the prospective members and other individual people there are people who are members of the those and it may be completely unsuccessful but we're really being asked quite a theoretical question here and that is whether the fact that this unincorporated association is a subset of a larger group of human beings is sufficient to allow the smaller group to be called a person and the larger group to be called them after process and i understand your answer parts of a corporation or an entity let's call it an entity not a corporation the gang is not a corporation correct the club is not a club it is point it is a corporation but at the time of the end i can't  it has people who associate with it would be no different than vendors to the any entity out there or bartenders that serve the l a county sheriff's department which is an entity they have no existence separate and distinct from the mongols nation motorcycle club the full patch members if there was no mongols motorcycle club what i have no significance with respect to the m was i was i corrected note that the the motorcycle club the larger group has a different governing structure that is not this group that is run from the mother chapter it's not that's not know if you're anywhere where did i get that notion probably from the government's brief which is an accurate there is a mother chapter which was the original founded by the navy seals and relocated out to san bernardino and there are  decisions for the nation and who makes the binding decisions for the gang but this isn't to throw away all your power whatever it is don't ride with your helmet of whatever it is who makes the decision for the smaller group and the larger group the members the members elect the president the members elect the officers the individual chapters elect their officers  and they govern the individual members decide who comes in and who doesn't who gets to associate who gets to express their first amendment association and rights how do i can understand how that works for the nation i don't individuals who are not members of the nation are independent of the nation that is to say they are individuals they are all these individuals who are not members of the  nation but are affiliated with it in some way but they're not members and then there's the nation which has all of these clubs and i mean i don't understand why all of these individual people who are not members of the of an organization you say why they can't be the the other people for the distinct people for rico purposes if there is no mongols nation motorcycle club there are no mongols affiliates there are no mongols associates and that's what judge carter correctly latched onto there is no distinction between the mongols motorcycle models nation motorcycle club it was pretty short and protected and registered by the l a county sheriff's department and it is issued by whoever the hierarchy is to various members of the sheriff's department as they are brought in and if members of that organization commit criminal acts they can be individually pursued the only issue here is that the men who've allegedly committed wrongful acts have been convicted and they've serving their time in jail the only issue that's left before the court is are we now going to punish somehow the other thousand men who belong to this club the did nothing wrong it would be like saying that the l a county sheriff's department is a criminal organization because members of the department abused the civil rights of the various prisoners who were there was an attempt to let intimidate f b i agents or there were various things that go on those individual crimes that were committed by individuals there is no need for a rico overlay when there is no distinction in this case if you counsel you you have exceeded your time by quite a bit we appreciate your arguments and i think we understand your position markets could not be forfeited from individual members of the game now that same entity is saying that the trademark rights cannot be forfeited from it and i submit your honor that that is there another way the government could pursue the forfeiture of the mark so there is no or something else wrecked right that's correct but that the means to forfeit it in that would have to be through some statutory basis and in this case question if i may add thirty points or what there is living design is the reason i think living designs is the best case for us and why this case is different from the employee employer cases that defense has relied on is there is no case ever that i held that in any defendant is not distinct from outside individual there have certainly been cases that have held that any defendants are not distinct from their own officers or employees so in river woods for instance it was a bank and their officers are in yellow bus it was a union and it's trustee here there is an entity and outside individual people can i please so that's who we have a fraternity and they're fully full members of the fraternity and you have pledges people who want to be in the paternity so you have the a paternity as the person and then you also have him as the enterprise if you have the pledges are you saying that in that  circumstance they can these these pledges if you took out the enterprise all you would have was would be these pledges you know that would be enough if a subset of the fraternity had a subset i mean when you have pledges they're not matched members they're kind of wanting to join the organization if you take out the enterprise all you have is like a pledge class is that sufficient if the formal members of that fraternity had identified themselves and organized as an entity that is to say they are as the model nation here a corporate entity and as here and as a partly an unincorporated association then yes they would be distin from outside from individuals that are outside of that energy defendant so that would include pledges that would include bartenders at their parties as defense counsel suggested about the sheriff's department to the extent that you could identify and association in fact under rico don't know i actually don't know if a partnership can be charged as a defendant and rico i haven't looked into that but assuming it could i think i assume that would be the same so how about the people who they have made who are interviewing the offer is interviewing  courting would they be part of that be enough to stablish a distinct enterprise i think these hypotheticals are really getting actually at the difficulty in establishing the outside edges of an association in well that's what we've been presenting it with well really here here or there is there are pleadings that this is an association in fact right that these these members of the enterprise do come together and under turkey that they have sufficient connection to one another to form this dissociation however it is only a subset of that association that has come together as an entity in this case the mongol nation that entity there is no doubt that it is a person under rico there is no doubt that we have alleged that that person has violated rico and there is no doubt that the broader enterprise includes individual people that are not included in that in that the indicted defendant there is no case that supports dismissal of an indictment where it alleges facts such as those