UPDATED 8:07 P.M. EDT (U.S.A.) Chad Svendsen of Lakeville, Minn., has filed a motion to set aside the forfeiture in the AdSurfDaily case. Svendsen’s motion uses the Curtis Richmond litigation blueprint and is virtually identical to other recent pro se motions filed in the case.
Richmond is a member of a sham Utah “Indian” tribe known for filing vexatious litigation. Richmond, of Solana Beach, Calif., filed a virtually identical motion last week.
So did Michael and Joyce Haws of Ankeny, Iowa. Joyce Haws “and her spouse” are included on a list of 34 “founders” who provided start-up capital for Golden Panda Ad Builder, according to a sworn affidavit filed by Golden Panda President Clarence Busby on Aug. 29, 2008.
Richmond was convicted of criminal contempt of court in California in 2007 for threatening federal judges. He also was ordered last year to pay damages to public servants in Utah who were targeted by vexatious “tribal” litigation.
The templated, pro se filings in the ASD case accuse the prosecutors and judges involved in the case of crimes. The ones in recent days frame a strange argument against prosecutors’ assertions last month that filings such as Richmond’s will lead to unconscionable delays in obtaining justice for rank-and-file ASD members.
Rather than countering prosecutors’ argument about the prospect of Richmond-like pro se pleadings delaying justice, the documents appear to suggest the prosecutors should be ignored because they are merely stating opinions.
Svendsen’s filing today, like others since April 20, accuse the prosecutors of Fraud upon the Court, Perjury of Oath, Obstruction of Justice and Interference with Commerce.
Prosecutors last month responded to three earlier pro se pleadings that used a different Richmond blueprint by filing a memorandum that addressed all three pleadings in the same document, rather than filing an individual document for each pleading.
Today’s filing by Svendsen, however, suggests that prosecutors now will have to file yet another response, which could lead to even more delays in the case. Three such motions have been filed since April 20. Prosecutors have not responded to any of them.
The recent Richmond-like, pro se filings appear to ignore a pro se pleading filed by ASD President Andy Bowdoin that acknowledged ASD was operating illegally at the time federal agents seized tens of millions of dollars last summer. One of the arguments is that the government interfered with commerce by taking action in the forfeiture case.
How the filers intend to demonstrate it is legal to participate in an enterprise Bowdoin himself deemed illegal is unclear. Svendsen’s motion does not take into account an assertion last week by prosecutors that Bowdoin had signed a proffer letter in the case and acknowledged to law enforcement that the government’s material allegations all were true.
Svendsen’s filing brings to six the unofficial total of ASD members who have used Richmond’s litigation blueprint. This number does not take into account Bowdoin’s pro se pleadings, which unofficially total four, bringing the unofficial grand total of pro se pleadings in the case to 10.
Federal prosecutors have said such filings could lead to interminable delays in rank-and-file members of ASD getting refunds through a process the government intends to implement for crime victims.
UPDATED 1:11 P.M. EDT (U.S.A.) Golden Panda Ad Builder President Clarence Busby has been served with a racketeering lawsuit pending since Jan. 15. His attorney has filed a motion to dismiss him as a defendant, referring to him at least 120 times in the 46-page document as “Rev. Busby” and saying he has been a practicing Protestant minister in Georgia for 30 years.
Busby, through his attorney, did not say why it had taken so long to respond to the lawsuit.
Busby’s attorney — Jonathan W. Emord of Clifton, Va. — said claims against “Rev. Busby are precluded by the United States’ civil forfeiture action under the doctrine of res judicata.
“Plaintiffs are barred from relitigating issues resolved against Busby on behalf of the United States and all residents, citizens, and taxpayers concerning matters adjudicated which are of public interest,” Emord argued.
In essence, the argument holds that, since Busby already has submitted to the forfeiture of funds and the government is establishing a mechanism for refunds, the RICO litigants already have a remedy.
“Plaintiffs admit that their case ‘grows out of the same events and transactions’ as the US Forfeiture action, Emord said.
“The doctrine of res judicata bars Plaintiffs’ claims because Plaintiffs were in privity with the Government during the initial forfeiture proceeding,” he argued. “The Supreme Court has recognized the long settled axiom that a judgment for or against a governmental body in an action brought by the governmental body on behalf of the public is binding and conclusive on all residents, citizens, and taxpayers with respect to matters adjudicated which are of general and public interest.”
The RICO lawsuit was brought by three members of AdSurfDaily. Busby, through his lawyer, argued that the plaintiffs were not members of Golden Panda. In addition, Busby argued that Golden Panda and ASD were separate companies.
At the same time, Emord argued that the RICO claims should be barred because a motion Busby filed to relinquish his claim to the seized funds in the federal case was granted by Judge Rosemary Collyer and has the effect of a “Final, Valid Judgment on the Merits.”
The forfeiture will be perfected with the signing of another order, which Emord described as a “ministerial” action.
“Without additional claimants to Golden Panda assets, nothing stands in the way of a forfeiture order following the Government’s prospective filing of a consent default motion,” Emord said. “On April 24, 2009, Government counsel represented that he will soon file such a motion.”
Busby, through his attorney, also asked the judge to “demand” proof of an assertion that some of the money in Golden Panda accounts came from ASD.
“The fact that ASD and [ASD President] Bowdoin did not provide money to Golden Panda accounts has been demonstrated by uncontroverted evidence during the forfeiture proceedings,” Emord said.
He also asserted that all Golden Panda money had been turned over to the government.
“Rev. Busby volitionally transferred to the U.S. Secret Service all outstanding checks, customer materials, and related Golden Panda assets he possessed before dissolving the corporation,” Emord said.
The transfer came as a result of a negotiated settlement of the August forfeiture complaint filed by the government, which had “sought Rev. Busby’s assets that were derived from the operation of Golden Panda,” according to today’s motion on Busby’s behalf.
“Negotiations culminated in a resolution on the disposition of Golden Panda assets,” Emord said. “Golden Panda agreed to forfeit permanently to the Government all monies received by Golden Panda from its customers.”
Golden Panda was formally dissolved as a corporation on Sept. 24, according to records.
Bob Guenther, de facto head of the ASD Members Business Association (ASDMBA) Trust, however, has said that not all Golden Panda money was turned over to the government.
“Mr Busby, under pressure from me and the ASDMBA, returned over $1.5M in uncashed cashiers checks to the rightful owners,” Guenther said, in a March 26 Comment here.
Some of the money came from active-duty and retired police officers in Texas and California, Guenther said.
Emord also argued that RICO claims against Busby should be dismissed because the allegations were vague, failed to state claims and the plaintiffs lack standing.
Andy Bowdoin is now the sole defendant in the RICO case not to have responded to the lawsuit.
A racketeering lawsuit against ASD President Andy Bowdoin, ASD attorney Robert Garner and Golden Panda Ad Builder President Clarence Busby makes a veiled reference to what autosurf participants refer to as the “80-20” rule.
The reference signals that both private litigants and the government are wise to methods autosurf promoters use to stem the outflow of cash and maintain the deception to encourage new money to flow into the system. Under the so-called 80-20 plans, participants remove 20 percent in cash and let 80 percent ride in the surf.
Another unstated advantage the “80-20” plans bring autosurfs is to keep cash-out amounts below daily electronic-transfer limitations imposed by banks and payment processors. By discouraging cash-outs, the surf firms can hide the limitations from participants, meaning their inability to honor all cash-out requests also is hidden.
Members of AdViewGlobal, a surf firm with close ties to ASD, have formed an “80-20 Club.” But the veiled reference in the RICO lawsuit, which was brought by ASD members, signals that such promotions ultimately may drag autosurf promoters in general into future racketeering litigation, with downline members hiring attorneys to file class-action lawsuits against both the surfs and upline sponsors under RICO statutes.
“The RICO Defendants induce members to leave earned rebates in ASD as a cash balance by claiming that by doing so, members will significantly increase earnings,” the plaintiffs in the ASD RICO case said.
“In this way, the RICO Defendants encourage members to continue to contribute to ASD’s scheme,” the plaintiffs said. “Furthermore, members do not learn that ASD cannot live up to its promises until members attempt to cash out. Members may watch their ASD accounts grow by delaying cash out, but the only real growth is of ASD’s pyramid.”
ASD employed another deception — calling the amount in a member’s account a “cash balance” — to keep money in the system, the plaintiffs said.
By referring to the amount as a “cash balance,” ASD “falsely represents that the account balance has the liquidity of cash.”
Lawyers for three plaintiffs who accuse AdSurfDaily President Andy Bowdoin, ASD attorney Robert Garner and Golden Panda Ad Builder President Clarence Busby of racketeering have filed an amended complaint that accuses Bank of America of turning a blind eye to a Ponzi scheme.
Bank of America is not named a RICO defendant in the amended complaint filed today — as was the case with the original complaint filed in January. Rather, the bank is accused of aiding and abetting a fraudulent scheme — and the plaintiffs say that, rather than reporting unusual banking activities to authorities, Bank of America employees in Quincy, Fla., went to work for ASD while still holding down their jobs at the bank.
“As the inflow of money increased rapidly after [ASD] rallies [in U.S. cities], Bank of America employees from the Quincy, Florida branch began paid work for ASD at the ASD office in Quincy, Florida,” the plaintiffs charged.
On March 20, Bank of America said it had done nothing wrong and asked for the original complaint to be dismissed.
Tens of millions of dollars connected to ASD, Golden Panda and LaFuenteDinero were seized by the U.S. Secret Service in August, amid allegations of wire fraud, money-laundering, selling unregistered securities and operating a Ponzi scheme.
“Banks are not guarantors of their customers’ conduct,†BOA argued in its motion to dismiss. The bank further argued that the complaint was vague and speculative, lacking in facts to such a degree that U.S. District Judge Rosemary Collyer of the District of Columbia must dismiss BOA as a defendant.
Today’s filing by the plaintiffs included allegations not listed in the original complaint, including the allegations that Bank of America employees had taken second jobs with ASD and that a “majority” of the employees of the bank’s Quincy branch also worked for ASD.
“Among other things, these employees assisted ASD in processing incoming funds, including funds acquired through Visa transactions,” the plaintiffs said. “Bank of America management knew that its employees also worked as ASD employees. To say the least, this involvement of Bank of America employees in the day-to-day operations of ASD provided Bank of America with additional knowledge of the RICO Defendants’ financial transactions.”
The bank helped “increase the scope” of damage done by ASD’s racketeering scheme by not seeing things for what they were, the plaintiffs charged.
One of ASD’s employees also employed by Bank of America was the branch manager in Quincy, the plaintiffs said. They further asserted that a Bank of America vice president of business banking from Tallahassee visited ASD’s headquarters and reported nothing unusual.
Bank of America workers who took second jobs at ASD were paid higher wages than other ASD employees performing the same work, the plaintiffs said.
Attorneys for plaintiffs Mike Collins, Frank Greene and Nature’s Discount Inc. — all former ASD members — said the bank helped ASD carry out the scheme. The lawsuit was brought as a prospective class-action. Bank of America and Garner have responded to the lawsuit, which was brought in January. Bowdoin and Busby have not.
ASD was having trouble processing payouts because of a $2 million daily limit on electronic transactions imposed by Bank of America, the plaintiffs said.
“Bank of America subsequently modified the RICO Defendants’ accounts to provide ASD with the opportunity for a higher capacity of electronic transactions,” the plaintiffs said. “The Quincy, Florida branch office of Bank of America initiated this upgrade in the RICO Defendant’s account or accounts, and Bank of America management outside of the Quincy, Florida branch validated the upgrade after conducting an in-person investigation [that] included a visit by a Vice President to ASD’s offices.”
The bank failed to spot problems at ASD, even with bank employees working for ASD, the plaintiffs said.
Among other things, according to the plaintiffs, Bank of America failed to:
Recognize the illegitimacy of ASD.
Stop the RICO defendants from using the bank’s products and services in furtherance of illicit purposes.
Halt the bank’s atypical involvement in the scheme.
Two other banks in Quincy refused to maintain back accounts for the RICO defendants, the plaintiffs said.
“Bank of America did not,” the plaintiffs said, alleging that the bank had “teamed up with the RICO Defendants to perpetrate this fraud.”
About $53 million remained in Bank of America accounts linked to the RICO defendants when the U.S. Secret Service seized the funds in August, the plaintiffs said — “and hundreds of millions of dollars had been dissipated.”
UPDATED 5:44 P.M. EDT (U.S.A.) A Mod at an AdViewGlobal forum set up by Mods and members of AdSurfDaily has warned AVG members not to refer to their purchases as “investments.”
Rather, the Mod said, AVG members purchase “advertising” and are not “investing” or “investors.”
Posts that used the terminology of investments would be deleted, the Mod warned.
AVG members currently are stressing a so-called “80-20” strategy as a means of keeping the program viable for the long-term.
Analysts, however, point out that the “80-20” plans — taking out 20 percent in cash and letting 80 percent ride with the companies — are just another way to keep cash within ready reach of autosurf Ponzi schemes to sustain the deception.
There is not a single, documented case in the history of autosurf prosecutions in which the use of the word “advertising” to describe what the government views as an “investment” program involving the sale of unregistered securities has succeeded as a means of fending off a prosecution.
In other words, the government has made it plain that you can’t avoid prosecution by using other terminology to describe an investment program.
Regardless, many surf companies continue to insist that the use of the word “advertising” as a replacment for “investing” somehow insulates surfs from prosecution.
Prosecutors cited the wink-nod nature of autosurfs — including bids to avoid the word “investment” — in the August forfeiture complaint against ASD.
The complaint details an instance in which an ASD member insisted to an undercover agent from an IRS/Secret Service task force that bad things could happen if people joined ASD and started calling it an investment.
“The [undercover agent] asked her about investing with ASD,” prosecutors said of the ASD member. “She immediately said, ‘Don’t call it investing, you know what I mean, we can get in trouble if we say that, we have to be careful.’”
Prosecutors also made a veiled reference to “80-20” pitches in the August ASD complaint, again citing an undercover agent’s contact with an ASD member.
“He said the best way to make money in the system is to keep putting your money back into the system as it accumulates,” prosecutors said of the ASD member’s pitch to the undercover agent.
Some of the Mods and members of the Pro-ASD Surf’s Up forum set up the AVG forum after ASD gave the Surf’s Up forum its official endorsement after a federal judge ruled in November that ASD had not demonstrated it was a legal business and not a Ponzi scheme.
Prelaunch buzz for AVG started shortly thereafter. On December 19, prosecutors filed a second forfeiture complaint against assets tied to ASD. The complaint did not mention AVG by name, but it outlined allegations against George Harris, the stepson of ASD President Andy Bowdoin.
Harris is a trustee for the AVG association. AVG’s former chief executive officer — Gary Talbert — is a former ASD executive. On March 20, AVG announced Talbert’s resignation in an unsigned note to members. On March 23, AVG announced its bank account had been suspended.
On April 24, prosecutors announced that Bowdoin — on an unrevealed date — had signed a proffer letter and acknowledged to law enforcement officials that the material allegations against ASD all were true.
Proffer letters sometimes are used when prosecutors believe the one who proffers can aid law enforcement in an investigation.
In the end, prosecutors saved their best for last. Ordered by a federal judge April 3 to respond to a series of pro se motions filed by ASD President Andy Bowdoin in a federal forfeiture case involving tens of millions of dollars, prosecutors first addressed Bowdoin’s motion to dismiss the case for lack of fair notice.
Then they addressed Bowdoin’s motion to set aside the forfeiture because the court lacked jurisdiction over him in the forfeiture action. The first two prosecution responses occurred between April 6 and early in the day on April 24.
Finally, late in the day on April 24, prosecutors responded to Bowdoin’s motion to rescind a decision he made in January to submit to the forfeiture.
That’s when prosecutors dropped a bomb, telling U.S. District Judge Rosemary Collyer that Bowdoin, prior to submitting to the forfeiture, had told “law enforcement agents that the material allegations that the government made in its forfeiture complaint in this case were all true.”
Bowdoin even had signed a proffer letter, prosecutors told Collyer. Prosecutors used the words “confirmed” and “acknowledged” in their memo to help drive home their points (emphasis added).
“Mr. Bowdoin confirmed to law enforcement officials that he modeled his enterprise on another’s failed fraud scheme”
“[H]e acknowledged that there was almost no revenue independent from what he secured from the ‘members’”
“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”
Web buzz over the weekend focused as much on what prosecutors did not say as what they did say: Prosecutors, for example, did not say precisely what else Bowdoin had told the government. They did not reveal if he had named names. They did note that the proffer letter Bowdoin signed “informed him that his proffered statements would not be used against him in the government’s case-in-chief in any criminal prosecution of him — other than a prosecution for perjury, giving a false statement, or obstruction of justice.” (Emphasis added.)
But they added (emphasis added) that Mr. Bowdoin’s proffered statements could be used for “other” purposes.”
Prosecutors did not reveal what “other” purposes they had in mind.
Proffer letters sometimes are used when prosecutors believe the one who proffers can contribute to an ongoing investigation and perhaps even aid in the prosecution of others.
In the end, prosecutors said that Bowdoin, who’d been hailed a business genius by supporters who engaged in one letter-writing campaign after another to clear his name, admitted that ASD had no meaningful revenue streams other than member payments and fudged its numbers to create the appearance of brilliance — something that takes arrows out of the quivers of his supporters and destroys the credibility of all those letters written on his behalf.
Bowdoin himself had encouraged all the letter-writing, but he didn’t tell members about his confirmations and acknowledgments to the government. And he didn’t mention the proffer.
Not even the Mods at the Pro-ASD Surf’s Up forum — grand central for Bowdoin apologists — had anything to say about Bowdoin’s confirmations and acknowledgements and proffer letter this weekend.
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 “Motion to Withdraw Claims,†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 government’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. Bowdoin’s proffered statements could be used for other purposes,” they continued. “Mr. Bowdoin and the government never agreed that Mr. Bowdoin’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 “[t]he procedures used to search and seize [the] property in the forfeiture were nonexistentâ€; (2) the claimants “were 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) “government agents used fraud, trickery and deceit to . . . convince the claimants that the withdrawal and release of claims was their only optionâ€; (6) “government 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 conviction†and (7) “government 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,†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, ‘buyer’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. Bowdoin’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. Bowdoin’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. Bowdoin’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 “used 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,†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 government’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 another’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.”
Never mind that AdSurfDaily President Andy Bowdoin himself says ASD was operating illegally when the U.S. Secret Service seized tens of millions of dollars last summer amid allegations of wire fraud, money-laundering, engaging in the sale of unregistered securities and operating a Ponzi scheme.
And never mind that Bowdoin — who initially insisted ASD was legal, then changed his mind, then fired his attorneys and started filing pro se pleadings before finally hiring a new attorney — has failed in every attempt to demonstrate the legitimacy of his business.
In a motion just filed, ASD member Curtis Richmond has accused federal prosecutors of Fraud upon the Court, Perjury of Oath, Obstruction of Justice and Interference with Commerce.
Richmond is associated with a sham Utah “Indian” tribe known for filing vexatious litigation. He was convicted of criminal contempt of court in 2007 in California for threatening federal judges, and last year was ordered to pay damages to prosecutors and others he had nuisanced in litigation.
Richmond and other pro se litigants in the ASD case have asserted an “Innocent Owner” claim, which asserts that Judge Rosemary Collyer and the prosecutors have “defaulted” on demands made by certified mail and are violating the Constitutional rights of ASD members.
At the same time, the pro se litigants appear to be suggesting that they’re entitled to do business with whomever they please, even if the business is illegal — all while suggesting the government has a duty not to interfere with commerce even if it is illegal commerce.
One of the linchpins of this litigation approach is to send a list of demands via certified mail — and later make the claim that the recipient defaulted on the demands by not responding to them. Default judgments then are sought, sometimes for tens of millions of dollars.
This is the second pro se filing this week in the ASD case, and the fifth involving ASD members using Richmond’s litigation blueprint. This number does not take into account Bowdoin’s pro se pleadings, which total four, bringing the unofficial grand total of pro se pleadings in the case to nine.
Federal prosecutors have said such filings could lead to interminable delays in rank-and-file members of ASD getting refunds through a process the government intends to implement for crime victims.
In what could be a day of multiple filings by the government in the AdSurfDaily case, federal prosecutors said in a memorandum that pro se claims by ASD President Andy Bowdoin that U.S. District Court for the District of Columbia has no jurisdiction over him in a civil forfeiture case have “no reasonable basis” in law.
Meanwhile, prosecutors asserted that continued filings by Bowdoin on a bad-faith basis might subject him to sanctions.
“In his pro se ‘ Motion To Dismiss, etc., Mr. Bowdoin suggests that this Court ‘does not have jurisdiction because although this may be filed as a civil action, it must be treated as quasicriminal with a standard of review or proof of clear and convincing evidence, not just preponderance of evidence,’” prosecutors said. “Alongside his opaque prose, however, Mr. Bowdoin offers neither one relevant argument, nor one pertinent citation in support of whatever relief he may here be urging.”
Judge Rosemary Collyer should deny the motion because it simply has no force of law behind it, prosecutors said.
“Mr. Bowdoin closes by asserting that ‘[t]here has been no probable cause determination
in this forfeiture,’” prosecutors said. “But he knows that statement is no more truthful than the representations he made to his investors. In this case a judge found probable cause for each seizure warrant this Court issued, and this Court found probable cause to support the forfeiture action again, after reviewing the government’s verified complaint and the additional evidence that Mr. Bowdoin’s former attorneys insisted be produced.”
Bowdoin’s behavior could result in a request for sanctions, prosecutors hinted.
“In this case, Mr. Bowdoin has filed an assortment of new motions after having already lost their earlier iterations,” prosecutors said. “Continued serial-filing might be rejected outright, and even sanctioned.
“Rule 12(g) provides,’If a party makes a motion under [Rule 12] but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted….’” prosecutors continued.
“In other words, with limited exception, Rule 12(g) requires all of the permitted Rule 12(b) defenses to be raised in a single, consolidated motion rather than in multiple or successive motions. See Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir.2002). Leading commentators on federal practice and procedure agree that Rule 12(g) generally bars successive pre-answer motions to dismiss.
“Professors Wright and Miller state, ‘The right to raise these defenses by preliminary motion is lost when the defendant neglects to consolidate them in his initial motion,’” prosecutors said.
A federal judge has granted attorney Robert Garner’s pro se motion to respond to a racketeering lawsuit filed against him by members of AdSurfDaily Inc.
As he requested, Garner will be given until May 22 to respond to the complaint. U.S. District Judge Rosemary Collyer issued the order, although a proposed order by Garner appeared to be directed to a U.S. Magistrate Judge.
Collyer is the presiding judge in the case, which was filed Jan. 15. Also named RICO defendants were ASD President Andy Bowdoin and Golden Panda Ad Builder President Clarence Busby.
Nothing in the record suggests Bowdoin and Busby have been served with the complaint. Neither man has filed a response, and no attorney has filed a response on behalf of Bowdoin or Busby.
The plaintiffs in the case — Mike Collins, Frank Greene and Natures Discount Inc. — have said in court filings that they have not been able to perfect service of the complaint.
Garner, after more than two and one-half months, was served earlier this month.
The reasons for the delay in service are unclear.
Bank of America is a non-RICO defendant and has responded to the complaint. Parts of the case have been on hold, pending service of the complaint.
The RICO complaint alleged that Garner, Bowdoin and Busby were involved in “other†schemes beyond ASD, Golden Panda and LaFuenteDinero, and have “committed or aided and abetted in the commission of countless acts of racketeering activity,†including indictable offenses.
UPDATED 5:44 P.M. EDT (U.S.A.) Two Iowa residents from a city that once hosted an AdSurfDaily meeting attended by Andy Bowdoin have filed a pro se motion to set aside the forfeiture in the case.
The motion, which used the Curtis Richmond litigation blueprint, was filed by Michael and Joyce Haws of Ankeny. ASD member Mindy Bales hosted a March gathering at an Ankeny restaurant that brought in $900,000, Bales told the Des Moines Register last year.
A similar meeting in July 2008 at an Ankeny golf club fetched $1.6 million, Bales told the newspaper. It is unclear if Michael and Joyce Haws joined ASD at the Ankeny meetings.
Their filing accuses the prosecutors and judges involved in the case of crimes. At the same time, it also appears to frame a strange argument against prosecutors’ assertions last month that filings such as Richmond’s will lead to unconscionable delays in obtaining justice for rank-and-file ASD members.
Rather than countering prosecutors’ argument about the prospect of Richmond-like pro se pleadings delaying justice, the document appears to suggest the prosecutors should be ignored because they are merely stating opinions.
Prosecutors last month responded to three pro se pleadings using the Richmond blueprint by filing a memorandum that addressed all three pleadings in the same document, rather than filing an individual document for each pleading.
Today’s filing, however, suggests that prosecutors now will have to file yet another response, which could lead to even more delays in the case — exactly what the prosecutors warned against last month.
The filing by Michael and Joyce Haws also appears to ignore a pro se pleading filed by Andy Bowdoin that acknowledged ASD was operating illegally at the time federal agents seized tens of millions of dollars last summer. One of the arguments in the document by the Haws is that the government interfered with commerce by taking action in the forfeiture case.
How the Haws intend to demonstrate it is legal to participate in an enterprise Bowdoin himself deemed illegal is unclear. It also is possible the Certificate of Service in the document is defective in multiple places for not including a date.
Richmond is associated with a sham Utah “Indian” tribe known for nuisancing public officials and filing bizarre legal motions. He was convicted in 2007 of contempt of court for threatening federal judges, and was ordered to pay resitution last year to public officials who brought a RICO lawsuit against members of the tribe.
