PROSECUTION BOMBSHELL: Bowdoin Signed Proffer Letter Prior To Submitting To Forfeiture And Told Investigators That Government’s Material Allegations Were ‘All True’
Prior to submitting to the forfeiture of tens of millions of dollars in January, AdSurfDaily President Andy Bowdoin signed a proffer letter and told investigators that the government’s material allegations all were true, federal prosecutors said late this afternoon.
The explosive revelation came in the form of a memorandum filed in response to a pro se motion by Bowdoin to rescind his decision to submit to the forfeiture.
“In fact, when Mr. Bowdoin, through his counsel, filed his January 2009 â€œMotion to Withdraw Claims,â€ seeking to dismiss the August 2008 claims that provided his statutory standing, he had already admitted to law enforcement agents that the material allegations that the government made in its forfeiture complaint in this case were all true,” prosecutors said.
“Mr. Bowdoin signed a ‘proffer letter’ that informed him that his proffered statements would not be used against him in the governmentâ€™s case-in-chief in any criminal prosecution of him — other than a prosecution for perjury, giving a false statement, or obstruction of justice,” prosecutors said.
“But the letter also explained that Mr. Bowdoinâ€™s proffered statements could be used for other purposes,” they continued. “Mr. Bowdoin and the government never agreed that Mr. Bowdoinâ€™s proffered statements were off the table in this civil case — which explains why, after consulting with his attorneys, Mr. Bowdoin decided, in January, to withdraw his claims.”
Bowdoin asserted in his motion to rescind that â€œ[t]he procedures used to search and seize [the] property in the forfeiture were nonexistentâ€; (2) the claimants â€œwere greatly influenced by legal counsel that was ineffectiveâ€; (3) the claimants were illegally intimidated, threatened and coerced by government agents and attorneys concerning potential prosecutions and sanctions against themâ€; (4) the claimants acted under severe duress and true feeling of protestâ€; (5) â€œgovernment agents used fraud, trickery and deceit to . . . convince the claimants that the withdrawal and release of claims was their only optionâ€; (6) â€œgovernment agents and prosecutors acted in bad faith in deciding to use a civil investigation and forfeiture to gain information and evidence for a criminal indictment and convictionâ€ and (7) â€œgovernment agents and prosecutors have willfully and intentionally used an illegal forfeiture to destroy the business enterprise that has affected thousands of innocent purchasers with de minimus or non-existent harm to the public to punish the claimants,â€ prosecutors said.
Judge Rosemary Collyer should deny the rescission motion, prosecutors said.
“Mr. Bowdoin offers no facts to support any of his accusations. Indeed, his accusations are inconsistent with the record. He offers no valid basis for this Court to permit relief from a final order, that he, through his counsel, requested, dismissing him from this proceeding.”
At the same time, prosecutors said, Bowdoin appears to have arrived at his conclusions after consulting with nonexperts.
“Mr. Bowdoin says that after discussing this case with his supporters, and concluding that they were smarter than his attorneys, he has changed his mind. But, ‘buyerâ€™s remorse’ is not a basis for establishing that a mistake occurred when the Court issued the order to dismiss the August 2008 claims,” prosecutors said. “Mr. Bowdoin offers no facts to support that any mistake ever occurred.
“Nor does ‘I changed my mind’ provide a basis under the catch-all provision in Rule
60(b)(6) to relieve a party from his free and conscious choice regarding the conduct of litigation,” prosecutors said.
The record of the case undermines Bowdoin’s assertions, prosecutors said.
“Mr. Bowdoin also alleges that he was ‘illegally intimidated, threatened and coerced by
government agents and attorneys concerning potential prosecutions and sanctions against them,'” prosecutors said.
“But that protest is belied by his other statements in the record here. When this case was
scheduled for a post-seizure hearing, at the request of the attorneys who Mr. Bowdoin retained in August 2008 to represent him in this civil forfeiture matter, those attorneys told this Court that Mr. Bowdoin would not be testifying at the hearing they had requested. Mr. Bowdoinâ€™s attorneys explained that, if called to testify, Mr. Bowdoin would assert his right under the fifth amendment to the Constitution not to incriminate himself.”
“In other words,” prosecutors continued, “his own attorneys, presumably in consultation with Mr. Bowdoin, concluded that Mr. Bowdoin faced potential prosecution for his conduct and should not testify. Mr. Bowdoin, through his attorneys, did invoke the fifth amendment. Mr. Bowdoinâ€™s apparent assertion now, that his agreement to withdraw from this case hinged on a threat from the government that he was facing criminal culpability, is plainly dishonest. The multiple attorneys Mr. Bowdoin has fired presumably explained precisely as much to him. Nor can Mr. Bowdoin credibly assert that his decision to
withdraw was tied to a prosecutor ever having misinformed his counsel.
“Ultimately, whether Mr. Bowdoinâ€™s awareness that he might face prosecution for criminal conduct came directly from his conversations with his own attorneys, or from conversations he had with some others, is irrelevant,” prosecutors said.
Justice is being delayed for ASD’s many victims because of Bowdoin’s senseless pleadings, prosecutors said.
Bowdoin claims the government â€œused an illegal forfeiture to destroy the business enterprise that has affected thousands of innocent purchasers with de minimus or nonexistent harm to the public to punish the claimants,â€ prosecutors said.
“The government agrees that the enterprise ‘affected thousands of innocent’ people and it agrees that the enterprise caused ‘harm to the public,'” they continued. “Mr. Bowdoin complains about his lawyers and the governmentâ€™s lawyers — but he does not maintain that the enterprise that affected thousands of innocent people was lawful. As he well knows, the evidence his attorneys produced demonstrated that fallacy of his supposed novel business.
“Mr. Bowdoin secured funds from the public by promising to them safe, profitable
returns,” prosecutors said. “To keep his fraud scheme afloat, Mr. Bowdoin paid apparent ‘profits’ to early entrants into the scheme, and to friends, family and employees. Mr. Bowdoin confirmed to law enforcement officials that he modeled his enterprise on anotherâ€™s failed fraud scheme, and he acknowledged that there was almost no revenue independent from what he secured from the ‘members.’
“No witness ASD produced at the emergency hearing disagreed,” prosecutors said. “No ASD official or representative testified that the enterprise secured revenue independent of what it derived from members to support the payments that were promised to the public and paid out to some participants.
“Mr. Bowdoin also confirmed that the revenue figures of the enterprise were managed to make it appear to prospective members that the enterprise called Ad Surf Daily was a consistently profitable, and brilliant, passive income opportunity. Mr. Bowdoin knew that his conduct was indefensible when he withdrew his claims in January. Nothing material has changed, and nothing Mr. Bowdoin offers in his ‘Notice of Rescission, etc.’ begins to support the relief he seeks.”
Read the proecution’s memo.