Archives for posts with tag: legal

This 1996 appeal of bank robbery conviction was affirmed with mention of ninja masks

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARIN AUSTIN, a/k/a DARNELL WIGGINS, a/k/a “D BABY”; DAVID CLEMENTS; and JASON JARVIS, Defendants-Appellants.
Nos. 94-4220, 94-4238, and 94-4278
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
81 F.3d 161

Filed- March 11, 1996

The Court writes:

Police recovered three firearms, and two black “ninja-type” ski masks from Austin’s room.

The Court also notes that the defendants watched the movie “Point Break” as “instructional” to develop their “modus operandi”.

point break movie

Finding no errors, the appeals court affirmed the conviction and sentences of all the defendants.

Advertisements

After his conviction for possession of burglary tools, Mark Thomas sued Nebraska Police Officers (particularly Officer Griss) for planting the evidence. Thomas was arrested for not paying his hotel bill and so theft of services from the hotel. He was arrested in the hotel lobby. Evidence obtained from a bag taken from the hotel room included:

a Pickmaster lock kit containing lock-picking equipment, a lock pick gun, toe nail clippers, a Swiss army knife, a black ninja hood, a pair of black leather gloves, and other items.

MARK C. THOMAS, Plaintiff/Appellee, v. DALE HUNGERFORD, Individually and in his official capacity as police officer for the city of Kearney, Nebraska; MICHAEL KIRKWOOD, Individually and in his official capacity as police officer for the city of Kearney, Nebraska, Defendants, JEFF GRISS, Individually and in his official capacity as police officer for the city of Kearney, Nebraska, Defendant/Appellant.
No. 93-3232
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
23 F.3d 1450

Filed – May 11, 1994

Thomas’s amended complaint as stating a cause of action against Griss on two grounds: that Griss had conducted an inventory search of Thomas’s duffel bag that was not in accordance with established procedures, and that Griss had planted the black ninja hood and the “o” ring in the duffel bag. The district court denied Griss’s motion for summary judgment, and this appeal followed.

Noting in footnote #1:

Although the denial of a summary judgment motion is not a final judgment, a district court’s denial of a qualified immunity claim is an immediately appealable “final decision” within the meaning of 28 U.S.C. § 1291.

Reversing:

The order denying Griss’s summary judgment motion is reversed, and the case is remanded to the district court for entry of judgment dismissing the complaint.

Explaining about the planted evidence:

The district court also denied Griss’s motion for summary judgment on Thomas’s claim that Griss planted a black ninja hood and an “o” ring in Thomas’s duffel bag. The magistrate judge construed Thomas’s complaint to allege that because the hood and “o” ring did not appear on Ward’s inventory form, Griss must have planted the items. Griss argues that he is absolutely immune from this claim because the allegation that he planted evidence is simply an assertion that he committed perjury when he testified at Thomas’s trial about the events surrounding Thomas’s arrest. Thomas concedes that Griss would be entitled to absolute immunity on such a claim, for officers are absolutely immune from liability under 42 U.S.C. § 1983 for damages arising out of their alleged perjurious testimony at trial. Briscoe v. LaHue, 460 U.S. 325, 342, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983). Thomas argues, however, that Griss did more than perjure himself, contending that Griss planted some of the evidence that the prosecutor used against him. Although absolute immunity may not shield Griss against such a claim, the district court should nevertheless have granted Griss’s summary judgment motion.

The inventory search was also found acceptable and not a violation of the Fourth Amendment, at least in part because the defendant himself asked to have the contents of the bag inventoried.

I think an “o” ring is a metal piece from a lock (in this case “a Kawneer-brand lock”) that can be used for breaking glass like car windows (see similarly Ninja rocks which will be mentioned in future case). But what makes a “black ninja hood” different from a mere black hood or black hood mask, this is not entirely clear to me, other than to further implicate that the defendant’s possessions are burglary tools. As if the tools themselves have intent, and this hood intended to be ninja.

NinjaLaw has already posted about three prior mentions of the Teenage Mutant Ninja Turtles in Federal Court opinions but it was in 1994 that for the first time, a Federal Court opinion was actually involving them as intellectual property in dispute.

MIRAGE STUDIOS, a Massachusetts general partnership, Plaintiff, v. WENG C. YONG, MERRY M. YONG, DENNIS C.M. LOW and DOES 1-5 inclusive, dba TAI FUNG TRADING; et al., Defendants.
No. C-93-2684-VRW
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
1994 U.S. Dist. LEXIS 5618

The opinion is by Judge Vaughn R. Walker. You may recall he is also the judge who recently ruled that California’a Proposition 22 was unconstitutional in case Perry v. Schwarzenegger about gay marriage case.

Written April 29, 1994:

On July 15, 1993, Mirage Studios (“Mirage”) filed this action for copyright and trademark infringement against a group of thirty-four retailers, distributors and manufacturers, alleging that each of the named defendants has infringed and threatens to further infringe upon Mirage’s copyrighted and trademarked “Teenage Mutant Ninja Turtles.”

I presume this was mostly for infringing tee-shirts. And as is typical, the copyright holder asked for maximum damages, in this case $10,000 but Judge Walker found no evidence of any such actual damages and ordered only $500 per defendant (34×500 is $17,000). Also the Judge ordered attorney’s fees of “$780 in attorney fees and $40 in service costs per defendant” – that $780 is the attorney’s bill of “5.2 hours (at $150 per hour)”.

The Court also chides the defendants who did not answer the complaints suggesting that they could have more easily settled the case in advance, but I wonder because attorney fees to answer could only have increased costs.

So this is the first time TMNT is actually directly involved in a Federal Court opinion. But recall the previous NinjaLaw posts about the prior tangential mentions the characters:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

Don’t worry, there’s more to come too.

This 1993 Ninja case might be called a failure of the “Dungeons and Dragons” insanity defense. The narrative of the appeals court decision explains an adventure game gone crazy as two soldiers become ninja assassins. And I wonder what was up with ninja in North Carolina in the early 1990’s because this is the third NinjaLaw post in a row that is from that area (Ninja Pants was also Fort Bragg and Motorcyle Bank Robbers was also NC).

ninja dungeons

MARK EDWARD THOMPSON, Petitioner-Appellant, v. GARY T. DIXON, Warden, Central Prison, Respondent-Appellee.
No. 92-6779
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
987 F.2d 1038

Decided – February 19, 1993

Opinion by Judge Morgan:

In the fall of 1986 the Petitioner was a 17-year old enlisted soldier in the Army stationed at Fort Bragg, North Carolina. There he met Jeffrey Karl Meyer, and the two began playing “Dungeons and Dragons,” an adventure game in which the participants enact roles and carry out adventures in a medieval setting. In November 1986, the Petitioner and Meyer were playing a game of Dungeons and Dragons which called for several “Ninja” assassins to enter the house of an elderly couple and assassinate them. The two chose the home of Mr. and Mrs Paul Kutz in rural Cumberland County, North Carolina, because it had what resembled a moat around their house. On December 1, 1986, the Petitioner and Meyer went to the Kutz’s home around 11:15 p.m. and broke in. They found Mr. Kutz, age 69, in his recliner and Mrs. Kutz, age 62, asleep in her bed. They killed Mr. Kutz by stabbing him 17 times and cutting his throat. The two killed Mrs. Kutz by holding her down and stabbing her numerous times. After stealing jewelry, credit cards and a television set, the Petitioner and Meyer returned to Fort Bragg. They were stopped by military police who discovered the stolen property. The military police notified Cumberland County authorities who discovered the bodies of Mr. and Mrs. Kutz. The Petitioner and Meyer were subsequently arrested.

The Petitioner confessed to being present at the murders, stealing the property and watching Meyer stab the Kutz’s. The Petitioner later confessed to his psychologist that he participated in the stabbing of Mrs. Kutz. At trial, the Petitioner contended that he was not guilty by reason of insanity and that he lacked the mental capacity to formulate the requisite intent required for murder. In his instructions at the close of trial, Judge Herring instructed the jury that “sanity or soundness of mind is the natural and normal condition of people; therefore, everyone is presumed sane until the contrary is made to appear.” (J.A. 64). On October 26, 1989, the jury rejected the Petitioner’s insanity and mental illness defenses and found him guilty of two counts of first-degree murder, two counts of robbery with a dangerous weapon, and one count of first-degree burglary. He was convicted and sentenced to three consecutive life terms of imprisonment plus two forty-year terms which were combined to run subsequent to the expiration of the life sentences.

The Petitioner appealed all judgments to the North Carolina Supreme Court. The North Carolina Supreme Court found no constitutional error in his trial. State v. Thompson, 328 N.C. 477, 402 S.E.2d 386 (1991). The Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 with the district court on November 25, 1991. His sole claim was that the state trial court violated his due process rights under the Fourteenth Amendment when it instructed the jury that he was presumed to be sane unless he proved otherwise. On January 8, 1992, the State filed its answer to the Petitioner’s habeas corpus petition and moved for summary judgment. On July 2, 1992, the district court granted the State’s motion for summary judgment, finding the state trial court’s presumption-of-sanity instruction did not in any way relieve the State of its burden of proving the intent which was an element of the offenses of which he was convicted by the jury. (J.A. 38). The Petitioner argues on appeal that these presumptions deprived him of his due process rights by removing the presumption of innocence and relieving the State of its burden of proving beyond a reasonable doubt that he intentionally committed the felonies of which he was convicted.

So defendants can’t just say playing Dungeons & Dragons made them insane and that they thought they were a ninja. The Japanese ninja was a D&D class in first edition D&D, in a 1985 expansion called “Oriental Adventures”. The character class only resumed recently in the 3rd edition. Perhaps the defendant was frustrated by the unavailability of the ninja character class in the middle editions of the game. If so, it is fair under due process and North Carolina law, to obligate the defendant to prove his insanity and this court does not find a violation of rights to innocence until proven guilt. Defendants are presumed sane.

A similar example of a case in which a defendant performed criminal acts by referencing to a role playing game involved the Vampire Masquerade game. I’ll tell you more about it when I get around to writing VampireLaw (soon enough but not today!). In the meantime, I hope you are reading ZombieLaw which is so far the most active.

In 1992, convicted bank robbers appealed their conviction.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASON KEITH WALKER, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LARRY BAXTER STALLINGS, Defendant-Appellant.
No. 92-5159, No. 92-5160
UNITED STATES COURT OF APPEALS FOR THE FOUR
TH CIRCUIT
Decided – December 16, 1992

On appeal, the Court affirmed the convictions and the sentences. The Court explained the circumstances of how these bank robbers were caught, mentioning a “ninja-style motorcycle” with “ninja-style” set in quotes in the opinion:

On August 16 and September 19, 1991, the North Duke Street branch of the NCNB National Bank in Durham, North Carolina was robbed. In both incidents, a man wearing a dark, visored motorcycle helmet entered the bank, brandished a pistol and threatened violence, and robbed the same teller. At the appellants’ trial, the teller and other bank employees testified that, because of similarities in voice and mannerisms, they believed that the same man committed both crimes. J.A. at 58-59, 68, 77-78, 126-27. After each robbery, witnesses saw the perpetrator exit the bank, jump on a “ninja-style” motorcycle driven by another individual, and ride off.

After the September robbery, a city maintenance supervisor followed the fleeing motorcyclists. From a distance, the supervisor saw the motorcyclists speak with the driver of an automobile and then drive off. The police eventually stopped the automobile and apprehended the driver

Unlike the sentence preceding, the quote “ninja-style” is not cited and it is unclear where the Judge got that from and why motorcycle is not also in the quote. It is also a Per Curiam opinion so it is unclear which of the three sitting judges (or their clerks) is responsible for the ninja usage.

I take this moment to note how “ninja” is used as a descriptor. Ninja is a brand name Kawasaki motorcycle (see previous NinjaLaw case of Kawasaki Motorcycle) but here the word used as a generic descriptor of a type of motorcycle with no explanation of what that means exactly. In the previous NinjaLaw post about “ninja pants” the court first referred to them as “black karate pants”. What exactly does the “ninja” adjective serve to imply?

In 1992, a US Army court of Military Review decided an petition of appeal on the court martial of Specialist Ronald A. Gray, convicted of “attempted murder, premeditated murder (two specifications), rape (three specifications), larceny, robbery (two specifications), forcible sodomy (two specifications), and burglary” and was sentenced (at his 1991 trial) to death.

UNITED STATES, Appellee v. Specialist Four RONALD A. GRAY, 261-69-7258, United States Army, Appellant
ACMR 8800807
UNITED STATES ARMY COURT OF MILITARY REVIEW
37 M.J. 730

In the December 15, 1992, decision Judge Naughton wrote:

On 6 January, the authorities observed the appellant with a dark bundle underneath his arm. When the authorities apprehended the appellant, he no longer had the bundle; however, authorities found a pair of black karate or “ninja” pants close by in a garbage can. A portion of the cloth belt strap was missing from the pants. The appellant denied committing any offenses and invoked his right to counsel.

continuing:

A few hours later the authorities discovered Ms. R’s body in the woods not far from her taxi cab. The body was lying face down in a wooded area. The body was nude except for a pair of socks. Ms. R had been gagged with the black cloth belt strap from the appellant’s “ninja” pants, and her hands had been tied behind her back. She had received multiple stab wounds. She also suffered bruises on her eyebrow, bruises on her nose, and a laceration on her lip. Swabs taken from her vagina and anus revealed that she had been raped and sodomized. The appellant’s fingerprints were found on the interior door handle of Ms. R’s taxi, and money in his possession at the time of his arrest was found to have Ms. R’s fingerprints on it.

This Court went on to affirm the convictions and the sentence of death:

We conclude that the sentence is appropriate for the crimes of which the accused stands convicted.

But this was not the end (nor was it the beginning) for US v. Gray in the Federal Courts. In fact, Lexis Shepardizing lists this case with three prior history citations and 48(!) subsequent history citations – many many motions denied. In March 1995, the case was argued before the US Court of Appeals for the Armed Forces and then reargued in December of 1996 and finally decided in May 1999. The Court again affirmed the criminal convictions and the order of death. This US v Gray case will appear again (when we get to #35) in our NinjaLaw review of all “ninja” opinions because the 1999 decision also mentions the “ninja pants” by including and appendix list of all of appellant’s claims of error, including:

18. The military judge improperly denied the defense motion to suppress the black “ninja” pants.

In 2001, the Supreme Court of the United States (Justices Rehnquist, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer) denied the petition for writ of certiorari in March 2001 and then in May 2001 denied petition for rehearing.

But still that was not the end for Specialist Ronald Gray.

A 2008 court stayed the execution and just this past January 26, 2012, a US Army Court of Criminal Appeals decided yet another denial:

Private E1 RONALD GRAY United States Army, Petitioner v. Colonel ERIC BELCHER, Commandant, United States Disciplinary Barracks and THE UNITED STATES, Respondents
ARMY MISC 201100931
1 The docket number for petitioner’s direct appeal is ACMR 8800807.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
70 M.J. 646

Judge Johnson denied this most recent motion, a “Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis”, and explained some of the recent history:

On 28 July 2008, the President of the United States [George W. Bush] approved petitioner’s sentence to death and ordered it executed. The Secretary of the Army scheduled petitioner’s execution for 10 December 2008; however, before it could be carried out, the United States District Court for the District of Kansas granted a stay of execution in anticipation of petitioner filing a petition for extraordinary relief in the nature of a writ of habeas corpus. Thereafter, petitioner filed a writ of habeas corpus, which is still pending before that court.

On 11 February 2011, petitioner filed with this court the instant petition for extraordinary relief in the nature of a writ of coram nobis. We then ordered the government to show cause why the writ should not issue, and it filed an answer brief on 14 March 2011. Petitioner filed a reply brief on 13 June 2011. Petitioner is currently in confinement at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

Meanwhile, a 2008 opinion, US v. O’Neil, cited the 1992 Gray opinion for the principle: “photographs, although gruesome, are admissible”. By all accounts Gray was convicted of horrible acts of violence and nearly every Court since 1991 has ruled against him and yet still 20 years later his death sentence has not been imposed. This would be the first execution in the military since John A. Bennett in 1961.

But it still may be quite a long life left for Ronald Gray. Who knows how long these court proceedings could continue?

In 1992, El Cajon Cinemas sued AMC (American Multi-Cinema) alleging unfair trade practices preventing it from competing in the first-run movie business. “El Cajon alleges that it was injured by several different forms of defendants’ anticompetitive conduct.” Including: “Horizontal conspiracy, Circuit-Wide Deals, Leverages, Clearances and other Discriminatory allocations”

EL CAJON CINEMAS, INC., a California corporation, Plaintiff, v. AMERICAN MULTI-CINEMA, INC.
No. 90 0710 IEG (POR), 90 1408 IEG (POR), 92 0012 IEG (POR) (Consolidated)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
1992 U.S. Dist. LEXIS 19290; 1992-2 Trade Cas. (CCH) P70,038
Decided – October 23, 1992

Explaining the allegations of Circuit-Wide Deals, Judge Gonzales writes:

El Cajon alleges that AMC and Pacific abused the buying power of their large circuits by persuading distributors to license to their theatres nationally rather than on a film by film or theatre by theatre basis in each geographic market. El Cajon cites the Court to the deposition of its film buyer who states that all of the films by all distributors are really licensed in this manner. El Cajon also references another section in its film buyer’s deposition in which the film buyer says that, although he is not sure, he thinks that NINJA TURTLES and WILD AT HEART were distributed on a circuit-wide basis. This alone is not enough to withstand a motion for summary judgment. At the request of El Cajon, the Court will review other evidence submitted by El Cajon relating to alleged circuit-wide deals between Pacific and Orion, and will take this matter under advisement.


Wild at Heart was a 1990 movie by director David Lynch starring Nicolas Cage, Laura Dern and Willem Dafoe. The original Teenage Mutant Ninja Turtle movie was also a 1990 release.

But the Court refused El Cajon’s arguments:

While the Unfair Practices Act makes it unlawful for any person engaged in the production, manufacture, distribution or sale of any article or product for general use or consumption to perform certain acts which the state has determined are anticompetitive, Section 17024 of the Unfair Practices Act provides that the motion picture films when licensed for exhibition to motion picture houses are not articles or products under this chapter. As a matter of law, none of the defendants can be held in violation of the Unfair Practices Act for engaging in the alleged conduct.

El Cajon failed again on a motion for reconsideration decided in 1993. And right now on the internet (google), I can’t find any “El Cajon Cinemas” chain in existence.

Finally, note a recent article, Jan 3, 2012, posted in the Atlantic by Derek Thompson, entitled “Why Do All Movie Tickets Cost the Same?” about movie price fixing. It’s not exactly the same issue as El Cajon faced (Thompson is referring to each movie having the same admit cost, whereas El Cajon was fighting being forced to buy who sets of the distributor’s movies in order to get access to the hot new movies), but it’s all related to the big business takeover of independent cinema in the early 1990’s.

Ninja again being coincidentally(?) being a character of big business racketeering style takeovers. It is humorous to see the ninja turles involvement in this early media war and again recall their involvement in the cola wars.

In the 1992 trademark case of Monarch v Ritam, the Federal Court decided the usage of the word “ooze” or “ooz” in the marketing of a novelty toy product goo. The Court decides that ooze is either generic or descriptive and does not qualify for Lanham Act protections. And for the second time, a federal court cites Teenage Mutant Ninja Turtles even though its not really involved in the case.

MONARCH LICENSING, LTD., Plaintiff, -against- RITAM INTERNATIONAL LTD., INC., and BRAVMAN ASSOCIATES, INC., Defendants.
92 Civ. 3108(PNL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1992 U.S. Dist. LEXIS 8225; 24 U.S.P.Q.2D (BNA) 1456
June 12, 1992, Decided

The Court explains:

Ooz Ball is either a generic unprotectible mark or a descriptive mark which is unprotectible without secondary meaning.

Ordinarily, distinctiveness is a prerequisite to the establishment of trademark rights. Marks that are generic are never protectible. Marks that are descriptive rather than distinctive are protectible only on a showing of “secondary meaning.” See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 – 11 (2d Cir. 1976); Restatement (Third) of Unfair Competition §§ 13, 15 (Tent. Draft No. 2 1989) [hereinafter Restatement]

Monarch’s asserted trademark rights attach to the mark “Ooz Ball.” This mark results from the combination of two words: “Ooze” (with the final silent “e” dropped) and “ball.” This mark is used to designate an object which is denoted, or at least described, by those words. The object is delivered in the form of a ball and is intended to be used (at least partially) as a ball (by bouncing it and throwing it). The material of which the ball is composed can properly be called ooze. “Ooze” is a word from Old English which in ancient times referred to the muddy silt characteristically found in the beds of rivers or other bodies of water. From the Old English noun developed the same word as a verb, denoting the action characteristic of such muddy silt; the verb has in [*16] turn influenced the meaning of the noun which has come to include “that which oozes.” See I Compact Edition of the Oxford English Dictionary 1993 (1971). Thus a thick viscous liquid that flows slowly (or oozes) is Ooze.

A strong argument may be made that when this mark is used for this product, it is generic and therefore unprotectible, see Abercrombie & Fitch, 537 F.2d at 9; Restatement § 15; “Ooz Ball” is used in connection with a product that is a ball of ooze, or an ooze ball. As to the dropping of the silent “e,” such HN4Go to this Headnote in the case.spelling changes that do not affect pronunciation ordinarily will not save a generic mark. See, e.g., Leon Finker, Inc. v. Schlussel, 469 F. Supp. 674, 678 (S.D.N.Y.), aff’d, 614 F.2d 1288 (2d Cir. 1979); Restatement, § 14, Comment (a) and § 15, Comment (a); see generally 1 J. Thomas McCarthy, Trademarks and Unfair Competition § 12:12 at 555 – 556 (2d Ed. 1984).

The argument that the mark is generic is strongly supported by the text on the Ooz Ball packaging which, immediately under the trademark Ooz Ball, adds a descriptive line describing the product as a pod of “Intergalactic Ooze.” Also, the instructions on the package advise that if the product dries up, drops of water may be added to restore its “ooz-ability.” The inference is further reinforced by the fact that two other manufacturers of similar products, in addition to Ritam, have used the word ooze as part of the mark and/or description of their product: Dinosaur Ooze and Teenage Mutant Ninja Turtles Retromutagen Ooze.

At the very best, this mark sits at the low end of the “descriptive” category. As a descriptive mark, it is not entitled to protection without having achieved secondary meaning in the marketplace. See Abercrombie & Fitch, 537 F.2d at 10.

Monarch has made a very skimpy, conclusory and inadequate showing of secondary meaning. If the mark escapes the generic unprotectible category and is properly considered descriptive, it is, nonetheless, in all probability unprotectible because of inadequate proof of secondary meaning.

Recall that TMNT was cited before in a NinjaLaw case about soda and the cola wars because they made a “cowabunga cooler” product. While this “ooze” case is a more unusual product, it seems there were a lot of these oozes (and Ghostbusters slime) on the market and I think perhaps judges and law clerks like the “ninja turtles” and love the opportunity to mention it as we will see in many future cases as we continue to into NinjaLaw.

On June 10, 1992, US District Court in Northern District of Indiana affirmed the detention of Jerry Williams. Mr. William was convicted of “conspiracy to set off a series of pipe bombs for personal gain, which resulted in the death of one woman.”

U.S. v. BERGNER
800 F.Supp. 659 (1992)
UNITED STATES of America, Plaintiff,
v.
Douglas BERGNER, Russell “Rusty” Prevatte, Robert A. Soy, and Jerry Williams, Defendants.
No. HCR 92-042(4).
United States District Court, N.D. Indiana, Hammond Division.

Decided – June 10, 1992.

In December 1991 and January 1992, five pipe bombs exploded in Whiting, Hammond, and Highland, Indiana.

A. On December 23, 1991, a pipe bomb exploded at 1425 Stanton, Whiting. Emily Antkowics was in her backyard and was killed by the explosion.

B. On December 30, 1991, a pipe bomb exploded at Edo’s Lounge, 8929 Indianapolis Boulevard, Highland. The bomb was placed near a gas meter and caused extensive damage to the meter.

C. On December 31, 1991, a pipe bomb exploded at Salvino’s Restaurant, 1423 Indianapolis Boulevard, Hammond. Once again, the bomb was placed on a gas meter.

D. On January 1, 1992, a pipe bomb exploded behind a private residence at 6150 Harrison Avenue, Hammond. The bomb again was placed on a gas meter.

E. On January 5, 1992, the final pipebomb exploded behind an apartment building at 1608 – 169th Street, Hammond. The bomb again was attached to a gas meter.

The Court also mentions that the defendant, Williams, attended the police academy and actively tried to learn more about bomb-making and gang activities. The books he read in the police library are used as evidence against him.

One of the books which Williams reviewed was entitled Anarchist’s Cookbook.

This case arises for NinjaLaw because of the following brief, inconsequential mention of a stolen Ninja motorcycle:

On August 7, 1990, Williams and Rusty stole a jet ski while they were in Florida. Prior to his arrest, Williams permitted agents to search a storage locker which he had in Lansing, Illinois. Agents recovered the stolen jet ski along with a Ninja motorcycle stolen by Rusty.

Now, why call it is a Ninja motorcycle? What is the value of the modifier here? Is it included in part because this is a case about pipe bombs, thefts, sabotage – “Anarchist’ Cookbook” – And note, the connection to law enforcement: William is not acting under any color of government authority in this case, but he was trained in bomb-making by the police.

This conspiracy is also hatched by a group of high school friends. See US v Prevatte:

Russell Prevatte, with high school friends Douglas Bergner and Jerry Williams, commenced a series of burglaries in 1990.   In 1991, a fourth individual, Robert Soy, joined them.

It is so very typical of “ninja” to be but an adolescent male fantasy. And also the particular strategy diversionary explosions that this crime spree employed was also rather ninja-style:

Prevatte later read a book Williams had suggested, the Anarchists Cookbook, and the two discussed, when Williams was home from the academy on weekends, how to manufacture pipe bombs and how to use them near gas meters as a diversionary tactic for burglaries.

But let us not read too much into a single word, it is after all just a descriptive for the type of motorcycle; a motorcycle that has very little to do with this actual case because it is a co-defendant who stole it. It seems implausible to think that the judge (or his clerk) is using the word because of the greater association – but then again…

On March 9, 1992, a District Court in Texas decided the case of US v. One 1984 Kawasaki Ninja Motorcycle. The case is about assets seized by the government as part of a drug related offense.

1984 kawasaki ninja

Before the Court is Petitioner United States of America’s motion, filed on November 4, 1991, entitled Motion for an Order of Interlocutory Sale And For Substitution of the Res. This motion concerns specifically the Respondent 1984 Kawasaki Ninja Motorcycle, [among other property]

The issue:

various motions and pleadings present two main issues for determination:

(1) whether the United States may summarily sell the seized items; and,

(2) the proper procedure to be applied in seeking and performing such a summary sale.

The Court concludes:

In summation, the United States may proceed under the Supplemental Rules and 28 U.S.C. sections 2001-2004 in judicial forfeiture proceedings to the extent that such rules and laws are not inconsistent with the relevant portions of the Drug Control Act.

After reviewing all of the pleadings in the file, the Court is of the opinion that the Respondent Vehicles should be sold by the United States Marshal or any other person authorized to do so pursuant to Rule E(9)(c) of the Supplemental Rules and 28 U.S.C. section 2004.

This case also involved US Customs rules and Supplemental Rules for Certain Admiralty and Maritime Claims creating confusion over what could be sold but the Court ultimately ordered that the vehicles could be sold at auction for a price no less than 2/3rd of appraised value.