OBTAINED: Draft Of Complaint Some AdSurfDaily Members Say They’ll File Against D.C. Prosecutors In Florida; ‘Let The Games Begin!’ Declares Prospective Pro Se Litigant. Document Leads To Questions About Whether ASD Had A Special Class Of Members

Dear Readers,

We are plugging our nose as we publish this document (link at bottom of post). You should know up front that we converted the document to PDF format after receiving it in Microsoft Word format. We did so based on the belief that many readers may not own Word but likely have a free PDF reader among the programs on their computers.

We obtained the document from a source. An email introducing the document prompted recipients to “Please forward this to as many of our people as you can.”

The PDF conversion altered the format of the original document, causing certain typesetting errors to appear — but the text content of the body of the document is unchanged. We did not edit the body text in any way.  For the sake of convenience, we named the PDF file declaratoryreliefdraft.

The Word original is titled “T&D v USA UNITED STATES DISTRICT COURT.” It purports to be a draft of a “Complaint for Declaratory Relief” some AdSurfDaily members say they intend to file in U.S. District Court for the Southern District of Florida. The document lists ASD members Todd Disner and Dwight Owen Schweitzer as pro se plaintiffs.

It is unclear if other plaintiffs will emerge. Previous ASD pro se litigants appeared to have shared  a do-it-yourself litigation template. U.S. District Court for the District of Columbia was inundated with ASD-related, pro se filings in 2009.

No other plaintiffs are listed in the caption of the draft. The defendant is listed as:

THE UNITED STATES OF AMERICA
c/o United States Attorney’s Office
555 Fourth Street N.W.,
Washington, DC 20530

The address is the office of U.S. Attorney Ronald C. Machen Jr. No individual defendants are named. The document, which references U.S. District Judge Rosemary Collyer of the District of Columbia, misspells her name as “Collier.”

Disner lost a pro se round in the civil forfeiture complaint against Andy Bowdoin’s assets filed in the District of Columbia in August 2008. His petition — and the petitions of dozens of other ASD pro se filers who sought to intervene in the case amid claims the government “confiscated” their assets “wrongfully” — was denied for lack of standing.

In the original set of pro se pleadings in Collyer’s D.C. court, former Assistant U.S. Attorney William Cowden’s last name was misspelled as “Crowden.”

ASD President Andy Bowdoin advised Collyer in a sworn affidavit nearly three years ago that the seized assets in the U.S. Secret Service probe belonged to him or ASD, not individual members. In short, Bowdoin agreed with the prosecution’s view of the case with respect to the ownership of the seized assets.

In its current form, the draft appears to advance the notion that individual ASD members can gain standing in Florida after having been denied in the District of Columbia, get a judgment against the government and undo the government’s remissions program organized by the Secret Service and federal prosecutors in the District of Columbia. Prosecutors have said the ASD Ponzi scheme case may have 40,000 or more victims.

Among other things, the draft asks a Florida federal judge to declare that the government conducted an “illegal search and seizure in that it failed to meet the requirements of the fourth amendment to the United States Constitution and that therefore the search and seizure of their assets was illegal and void.”

At the same time, the draft appears to suggest ASD had a subset of members who should have been treated differently than ordinary members whose lives were altered by the alleged Ponzi scheme. Meanwhile, the draft makes a puzzling argument that ASD’s Terms of Service superseded federal law.

(In this snippet from the draft, the PP Blog added the emphasis to this Blog post.)

“Among the items seized were the accounts, funds and records specifically identified as belonging to the plaintiffs which were separately accounted for on the computer programs and data seized as they were members of ASD, having bought ad packages as specified in the rules and regulations of the ASD business model,” a section of the draft complaint reads.

“Consistent with the rules and regulations applicable to the plaintiffs’ their information was confidential and could only be accessed by them through the use of their password protected account with ASD and their accounts were separate and distinct from any other individuals or businesses who were participants in the ASD advertising program,” the section claimed.

If the document does get filed in a final form — and if the U.S. Attorney’s Office in D.C. gets served and files a response — we sincerely hope the government moves instantly to protect ASD victims at large from further restitution delays caused by pro se sideshows.

Make no mistake: This is gamesmanship.

An email currently circulating among ASD members and attributed to Disner even describes it as such.

“Let the games begin!” the email declares.

It’s as though the first round of games were not enough for some ASD members.

“Here is a draft of the complaint Dwight finished today,” the email, which is dated today, reads.

“I think you will be impressed.

“We will schedule another conference call to field any “feed back” to this motion.
“Please forward this to as many of our people as you can. (As I know you will)
“BEST OF LUCK TO US ALL!!”
_________________________________________________________________________
Click here to read the PDF, which was converted from Word by the PP Blog.

Patrick

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11 Responses to “OBTAINED: Draft Of Complaint Some AdSurfDaily Members Say They’ll File Against D.C. Prosecutors In Florida; ‘Let The Games Begin!’ Declares Prospective Pro Se Litigant. Document Leads To Questions About Whether ASD Had A Special Class Of Members”

  1. If it wasn’t an investment, and no returns were guaranteed, then please tell me what “property” that did not belong to ASD was seized? If, as this complaint states with some emphasis, that all money paid to ASD was only for advertising, then by their own argument, after the three days rescission period, all the money would be property of ASD, and no returns or payments back to members is assured in any way.
    Ah hell, that’s just one of about 100 reasons this petition is gonna get tossed. It’s hardly shocking to see that this guy is a disbarred attorney.

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  2. I can hardly wait for the case filing!!!!!!

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  3. I just hope all these nonsense motions start getting more and more other idiots looked at by the government.

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  4. “6. Consistent with the rules and regulations applicable to the plaintiffs’ their information was confidential and could only be accessed by them through the use of their password protected account
    with ASD and their accounts were separate and distinct from any other individuals or businesses who were participants in the ASD advertising program”

    Tony Soprano and the boys WILL be happy when that little gem becomes an acceptable defense in court.

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  5. Quick note:

    Imagine what would have occurred nearly three years ago if Bowdoin had advised the judge that the seized money belonged to the members. The prosecution easily could have viewed it as a confession that ASD was an investment program, not an advertising program.

    Bowdoin, though, DID tell the members that the seized money belonged to them, putting him at odds at what he told the judge.

    According to the prosecutors, who presented the transcript of a Bowdoin call to the judge, “this con man cannot manage to keep his stories straight.”

    Transcript of Bowdoin’s recorded remarks:

    http://patrickpretty.com/wp-content/uploads/2009/09/148-2.pdf

    Story:

    http://patrickpretty.com/2009/09/28/breaking-news-prosecutors-go-back-to-court-provide-judge-copy-of-transcript-from-bowdoins-call-last-week/

    All of this was mixed in with the strange claim Bowdoin was inspired by a former Miss America.

    Gregg: If it wasn’t an investment, and no returns were guaranteed, then please tell me what “property” that did not belong to ASD was seized? If, as this complaint states with some emphasis, that all money paid to ASD was only for advertising, then by their own argument, after the three days rescission period, all the money would be property of ASD, and no returns or payments back to members is assured in any way.

    In addition to the question you raised, Gregg, there is the issue of why ASD did not run the ads after the seizure if it was truly an “advertising” business.

    If members believed they had purchased ads and no “rebates” were guaranteed, they should have been perfectly pleased to see their ads on ASD post-seizure. I wonder how many people insisted to Bowdoin that he run their “ads.” After all, that’s what some ASD members insist they paid for.

    And, as you’ve noted in the past, there is an issue of ASD members acquiring more “ads” than the system could deliver — just another indication that the members were buying an investment and wink-nodding it into an “advertising” purchase.

    I wonder if Andy’s experts as referenced in the transcript the Secret Service gave the judge after the conference call in September 2009 are the same experts the emerging pro se litigants intend to use.

    “We have three expert witnesses that are willing to testify that our program was not a Ponzi,” Bowdoin said in September 2009.

    I also don’t see how the pro se litigants expect to get around the obstacles created by the ASD evidentiary hearing in 2008, specifically William Cowden’s cross-examination of Gerald Nehra and the section of the ASD Terms of Service that asserts rebates “will” be paid.

    There is a transcript of that, too. Assuming the pro se litigants do manage to get a hearing in Florida, the Florida judge will see the same thing Judge Collyer saw in D.C. In fact, some of the info is contained in the original set of evidence exhibits the government filed in August 2008.

    Back in 2009, when D.C. was flooded with the pro se filings, the filers insisted the government had no “EVIDENCE.” It was a strange claim, considering that some of the evidence already had been tested in open court and had been a matter of public record for more than a year.

    On another matter, the 2009 pro se litigants insisted the government had no “WITNESSES.”

    It seems to me the government could call any number of people from Florida.

    Final note: The pro se litigants in the prospective Florida filing appear to have sought to raise funds nationally from ASD members, but the draft of the complaint appears to apply only to Florida residents.

    “The plaintiffs are residents of the state of Florida and the acts complained of occurred within the state of Florida as more fully described herein.”

    Why would an ASD member from say, Michigan, want to send funds to ASD members in Florida to launch a pro se bid that appears to apply only to certain ASD members who live in Florida?

    It is actually painful to read an assertion by the pro se litigants that “the defendants offer what can only be described as a tissue of lies . . .”

    How would they describe Bowdoin’s sworn assertion to the judge, juxtaposed against his remarks in the recorded conference call? The money cannot at once be his and the members’.

    And did they forget about the prosecution’s assertion that Bowdoin ventured to Costa Rica in 2008 prior to the seizure with unnamed “others?”

    And that he apparently forgot to tell his original defense team that ASD had money in Antigua in an account under a different name — and that Bowdoin seemed to remember that only after the prosecution reminded him he had the cash?

    Meanwhile, did they forget that Bowdoin had a previous securities problem in Alabama and that the SEC says that Clarence Busby, Bowdoin’s business partner, had a little problem caused by THREE prime-bank schemes in the 1990s?

    Or that Robert Hodgins of Virtual Money STILL is wanted by INTERPOL and that James Fayed of E-Bullion has been convicted in California of arranging the brutal slashing murder of his wife, who was left to die in a parking garage?

    Patrick

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  6. Oops. The prosecution has Bowdoin’s proffer, and he was debriefed over a period of four days. Did the pro se folks forget about that?

    Patrick

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  7. Are these guys “sovereign citizens?” Do the Arby’s Indians or the fellow in Washington who was an “admiralty lawyer” have anything to do with fraudulent pleadings?

    I think birds of a feather travel together.

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  8. I hate being a lawyer but I am so here goes.

    1. Did they ever think of appealing the court order denying them standing in Washington? How do they intend to get by that little problem.

    2. Has anyone heard of sovereign immunity? I don’t remember the United States agreeing to be sued because it closed down a ponzi scheme.

    3. I don’t think a judicial decision is a tort coming under the Federal Tort Claims Act.

    However, after reading the “complaint” it does not appear to be as garbled as the redemption arguments of most “sovereign citizens.”

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  9. KL,

    What is perhaps unknown to you is that both of the “Plaintiffs” were participants in ASD and at least one took out much more money than was invested into ASD. Perhaps this is merely a smoke screen so the government never realizes this blatant fact. I doubt it will be successful, as more than likely the government already knows their names, as promoters and “winners”.

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  10. As I am a firm believer in the adage that a little knowledge is a dangerous thing I invite all of you arm chair lawyers, constitutional scholars or just plain demagogues to do two things…read the actual complaint (which is not the one previously published here) and then read the Summary of Search and Seizure Law from the Cornell Law School Law Library especially those areas which address the issues of what constitutes ‘Probable Cause’ and how the factual allegations of informants must be presented to a neutral magistrate for him or her to determine whether the information they have allegedly provided can be relied upon to form a basis to find ‘Probable Cause’.

    The Complaint can be found here:

    https://sites.google.com/site/asdupdatesfiles/documents/other-asd-cases

    The discussion on the Fourth Amendment’s protections against unreasonable searches and seizures and what constitutes Probable Cause can be found here:

    http://www.law.cornell.edu/anncon/html/amdt4frag2_user.html

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  11. Dwight… what was the old saying again? The pot calling the kettle black?
    When it comes to matters of law, your own record shows serious tarnish.
    http://www.jud.ct.gov/SGC/decisions/08-1099.pdf
    http://www.realscam.com/f17/ad-surf-daily-asd-crook-named-andy-bowdoin-168/index2.html

    Up to taking the risk of being thrown in jail for practicing law without a license? Or have you fallen even further and become a “sovereign citizen” rather than just a windbag and armchair pundit?

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