BREAKING NEWS: Judge Construes Bowdoin Filing As Motion To Vacate Previous Court Order; Prosecutors Ordered To Show Cause And Present Opposing Arguments By April 24

UPDATED 8:33 P.M. EDT (U.S.A.) A federal judge said one of ASD President Andy Bowdoin’s pro se pleadings to reverse his earlier decision to submit to the forfeiture of proceeds seized by the government in a Ponzi scheme case cited no law.

Bowdoin’s pleading appeared to presume that the filing alone achieved the goal of reversing his decision to submit to the forfeiture, the judge implied.

“Mr. Bowdoin cites no law for the proposition that his ‘Notice of Rescission and Withdrawal of Release of Claims to Seized Property & Consent to Forfeiture’ ‘legally accomplishe[s]’ his goal of re-instituting Claimants’ claims to the defendant property which the Court ordered withdrawn on January 22, 2009 pursuant to Claimants’ own motion,” Judge Rosemary Collyer said.

In an order to show cause issued late this afternoon, Collyer said she construed Bowdoin’s filing as a “motion to vacate” a previous order she issued to permit Bowdoin to withdraw his claim to the seized proceeds.

It is not unusual for a judge to exercise discretion and construe the meaning of a motion filed by a pro se litigant. Pro se motions typically are prepared by nonexperts and sometimes make tremendous leaps of logic or do not include supporting law. Bowdoin, who is not an attorney, has been acting as his own attorney since late February.

Collyer ordered the prosecution to show cause why she should not reverse her previous order by April 24. She also ordered prosecutors to respond to Bowdoin motions to dismiss the case for lack of jurisdiction and lack of fair notice by April 24.

See this earlier post for context.

And see this one.

Read today’s order.

About the Author

11 Responses to “BREAKING NEWS: Judge Construes Bowdoin Filing As Motion To Vacate Previous Court Order; Prosecutors Ordered To Show Cause And Present Opposing Arguments By April 24”

  1. Well that answers one question – by the 24th the Prosecution has to defend their position and then, presumably, she will either set a date for a further hearing. Can she turn down the motions in a written judgement?

    Now we have to wait and see if she grants Akerman Senterfitt their wish – to stop acting for Andy, ASD and Bowdoin Harris.

    It is difficult to believe that Andy Bowdoin really wants his day in court this time, if past conduct is anything to go by.

    It looks as if Pacer is becoming more exciting that the TV! lol

      (Quote)

  2. Hi alasycia,

    alasycia: Can she turn down the motions

    Yes. In theory, she even could order oral arguments in the courtroom, as opposed to deciding issues on the paper.

    It will be interesting to see how the prosecution proceeds. This case was nearly litigated to conclusion in January.

    And don’t forget about the motions by Curtis Richmond and three others using his blueprint. Those could also consume time, meaning any ASD refunds would be delayed.

    Patrick

      (Quote)

  3. Faretta v. California

    This bias exists in direct contradiction to the Supreme Court’s ruling in Faretta v California that everyone has the constitutional right to proceed without counsel. The reasoning behind that decision means that the Constitution requires our justice system to be neutral towards the self-represented litigant. That in turn means the courts must offer a level playing field for the represented and unrepresented alike, consistent with basic principles of fairness.

    Jenkins v Mckeithen, 395 U>S> 411, 421 (1959); Picking v Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox 456 2nd 233

    Pro Se pleadings are to be considered without regard to technicality; pro se litigants’ pleadings are not to be held to the same high standards of perfection as lawyers.

    The above can only be achieved provided you have a Judge that knows the law and respects it as does Judge Collyer.

      (Quote)

  4. Sounds to me like she’s getting the prosecutors to look up the legal citations and oppose his motions all in one fell swoop. If she told Bowdoin to resubmit his motion to include the relevant authorities, she’d have to read it again. If she assumes it was a motion to withdraw and tells the DOJ to answer as if it was, it skips a step in the process. I’m sure case law exists that applies strict limits regarding when a voluntary withdrawal of a claim with prejudice can be reopened, and I’m sure Judge Collyer knows it.

    But it certainly delays the DOJ’s ability to return funds to the members, doesn’t it???

      (Quote)

  5. Hi Marci,

    Marci: Sounds to me like she’s getting the prosecutors to look up the legal citations and oppose his motions all in one fell swoop. If she told Bowdoin to resubmit his motion to include the relevant authorities, she’d have to read it again. If she assumes it was a motion to withdraw and tells the DOJ to answer as if it was, it skips a step in the process. I’m sure case law exists that applies strict limits regarding when a voluntary withdrawal of a claim with prejudice can be reopened, and I’m sure Judge Collyer knows it.

    But it certainly delays the DOJ’s ability to return funds to the members, doesn’t it???

    I think you might be right about this. The prosecution consolidated its responses to Richmond and similar litigants. Maybe they’ll do something similar here.

    Thing is, the specific withdrawal pleading to which today’s order by the judge applies is the one in which Bowdoin appears to have confused the forfeiture cases.

    That could lead to even more filings.

    I haven’t seen an order yet to consolidate the forfeiture cases (August/December).

    Patrick

      (Quote)

  6. http://www.thejoyluckclub.com/56.pdf

    Reading the Judge’s footnote on the bottom of pages 2 and 3 makes me think that she may be familiar with the legal teachings of the Karl Dahlstrom College of Law. Judge Collyer remarks in almost a tongue in cheek manner that Bowdoin fails to quote applicable case-law to back up his assertion that filing his NOTICE of withdrawal and rescission “legally accomplishe[s]” rescinding the January 2009 withdrawal with prejudice of his prior claims. What makes me think this is that she puts “legally accomplishes” in quotes, almost as if she’s run across this Dahlstromesque turn of phrase before. I think she’s issuing an invitation to Cowden to throw the case-law book at Bowdoin and his new “legal team.”

      (Quote)

  7. I’m wondering why the docket skipped #55? Maybe a typo I guess..

    Steve

    04/02/2009 54 MOTION and Statement of Points and Authorities to Withdraw as Counsel by ADSURFDAILY, INC., THOMAS A. BOWDOIN, JR, BOWDOIN HARRIS ENTERPRISES, INC. (Attachments: # 1 Proposed Order)(Fayad, Michael) Modified on 4/3/2009 to enhance text(rdj). (Entered: 04/02/2009)

    04/03/2009 56 ORDER TO SHOW CAUSE. It is hereby ORDERED that the Government shall show cause, no later than April 24, 2009, why the Court should not grant Mr. Bowdoin’s (1) 47 “Notice of Rescission and Withdrawal of Release of Claims to Seized Property & Consent to Forfeiture”; (2) 39 Motion to Set Aside Asset Forfeiture and Dismiss for Lack of Jurisdiction under Fed. R. Civ. P. 60(b)(4); and (3) 50 Motion to Dismiss for Lack of Advance Fair Notice. See attached Order for further details. Signed by Judge Rosemary M. Collyer on 4/3/09. (lcrmc1) (Entered: 04/03/2009)

      (Quote)

  8. Hi Steve,

    Steve: I’m wondering why the docket skipped #55? Maybe a typo I guess..

    The docket didn’t skip 55. It got pushed down somehow and is titled “Notice.”

    You can find it in this post from earlier today:

    http://patrickpretty.com/2009/04/03/breaking-news-bowdoin-files-pro-se-motion-to-rescind-august-forfeiture/

    Patrick

      (Quote)

  9. The whole thing is a procedural issue, it’s a matter of following Federal Rules of Civil Procedure, Andy made a filing, she gave him the widest possible latitude in considering it a motion (because he was pro se, a member of the bar may have been sanctioned for filing nonsense like that) and as a matter of procedure a motion must either be contested or it wins by default. Any first year law student could wind this up. The government could (they won’t, they overkill it on the scale of nuking anthills) simply say “the court has ruled on this question” cite her earlier ruling and since Andy has no coherent legal argument or precedent, they win.
    As Jack said, everyone has the right to self defense (but not corporations, it’s a right the owners specifically give up in return for limited liability) and the law says they are to be treated as any represented party, the fact is they get preferential treatment almost always. Part of it may be some desire to bend over backwards for them, but actually the biggest reason is (though none would admit it) they don’t want to leave any possible avenue for an appeal, nothing would be more embarrassing to a federal judge than having a ruling overruled by a pro se defendant.
    I’m sure the Surf’s up crowd will say the judge is backing off and Andy has her and the government right where he wants them, but this one is done, stick a fork in it.

      (Quote)

  10. I think that quoting this footnote from another decision in the DC circuit is about all it would take to end this process..

    The federal rules do not recognize a “motion for reconsideration.” See Warren v. Am. Bankers Ins. of Fl., 507 F.3d 1239, 1243 (10th Cir. 2007). Ordinarily, a motion asking a court to reconsider a final judgment is brought under either Fed. R. Civ. P. 59 or 60. See id. But Rule 52(b) may be used to ask the court to amend the judgment or to make additional factual findings, and when it is so used, it extends the time for filing a notice of appeal. Fed. R. App. P. 4(a)(4)(A)(ii)

      (Quote)

  11. It strikes me that AUSA Cowden should be getting paid double time for addressing the Bowdoin pro se motions. In his first response, Mr. Cowden had to essentially assemble both sides of the case (his and Bowdoin’s) since Andy’s were so poorly done. Mr. Cowden in several instances pointed out where Bowdoin’s limited citations of case law were improper or irrelevant, and instead directed the court to much more proper citations and precedent. For that effort, Bowdoin should pay Cowden, since Cowden did a far better job of presenting Bowdoin’s case than did the Arby’s Indians/Richmond crowd. Cowden then had to make his own case.

    In the most recent filings, Judge Collyer has basically stated that Bowdoin didn’t even bother to cite any relevant law or case history. She’s again asking Mr. Cowden to write Andy’s case for him, and then to blow it out of the water….

    For pure entertainment value, I hope Judge Collyer orders an in-person appearance by all involved in her courtroom (at least it would make serving the RICO papers easier) and eventually grants Bowdoin’s recission of his decision to vacant the forfeiture challenge (she won’t want to set that precedant though). I am curious to see what Bowdoin’s next step would be IF he were allowed to challenge the forfeiture — he probably doesn’t know either…..

    In reality, I hope the motions are quickly dismissed, so the government can get on with victim reimbursement and the criminal case.

      (Quote)

Leave a Reply