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Tag: denial

  • BULLETIN: Judge Denies 3 Bowdoin Motions; ASD Asks For A Second Evidentiary Hearing In Federal Forfeiture Case

    UPDATED 10:27 P.M. EDT (U.S.A.) A federal judge has denied two pro se motions by AdSurfDaily President Andy Bowdoin to undo the forfeiture of tens of millions of dollars seized last year by the U.S. Secret Service.

    Separately, U.S. District Judge Rosemary Collyer also denied a third motion by Bowdoin to exclude and suppress evidence obtained in an interview with Secret Service agents.

    Meanwhile, Bowdoin has asked for an evidentiary hearing in which ASD would call “approximately five” witnesses to help it demonstrate that Collyer should permit ASD to reopen its claims to the seized money.

    Bowdoin submitted to the forfeiture in mid-January, but changed his mind in late February. He submitted a pro se motion to reopen the claim, and his attorney, Charles A. Murray, filed a supplemental motion on Bowdoin’s behalf.

    Murray today filed a motion seeking the evidentiary hearing. The motion suggests prosecutors plan to oppose the motion.

    “Counsel has conferred with opposing counsel who has his opposition to this motion,” Murray said, in his request for the evidentiary hearing.

    If the motion is granted, it would lead to the second evidentiary hearing in the case. The first was held Sept. 30-Oct. 1, and Collyer ruled in November that ASD had not demonstrated it was a legal business and not a Ponzi scheme at the proceeding.

    Collyer rejected three pro se motions today that Bowdoin had filed earlier this year, including the motion to exclude and suppress evidence.

    “The agents who searched Mr. Bowdoin’s property and seized certain tangible evidence were operating on the basis of a warrant issued ‘upon probable cause, supported by an affidavit made under oath, which particularly described the place to be searched and the things to be seized,’” Collyer said.  “There is no basis upon which to suppress evidence so seized.

    “Nor is there any basis to suppress Mr. Bowdoin’s statements to the investigators,” Collyer wrote, pointing out that, “Though Mr. Bowdoin initially declined to speak to the agents without a lawyer present, he later agreed to be interviewed.”

    Collyer noted that the forfeiture case was brought as a civil proceeding, not a criminal proceeding.

    “As Mr. Bowdoin’s statements are not being used to subject him to criminal liability, there can be no violation of his privilege against self-incrimination here,” Collyer wrote.

    She also rejected a Bowdoin argument that the civil forfeiture case should be dismissed because Bowdoin did not receive a Miranda warning.

    “Mr. Bowdoin was never placed under arrest, never ordered to participate in the interrogation, and was in his own home,” Collyer said. “The agents had no duty to advise him of his Miranda rights, and their failure to do so cannot be a basis for suppressing his statements.”

    Collyer also rejected Bowdoin’s claims that she lacked jurisdiction to hear the matters, that Bowdoin had been denied “fair notice” that his conduct with ASD was illegal and that the civil-forfeiture case actually was a “quasi-criminal matter.”

    “Mr. Bowdoin further argues that because this action is ‘quasi-criminal’ the Government should be required to prove its case by ‘clear and convincing’ evidence rather than by a preponderance of the evidence,” Collyer said. “A look at the Civil Asset Forfeiture Reform Act of 2000 (‘CAFRA’), 18 U.S.C. § 981, et seq., demonstrates the fallacy of this argument.”

  • BREAKING NEWS: Federal Judge Says Curtis Richmond, Six Other Parties Who Used Pro Se Litigation Blueprint, Cannot Intervene In AdSurfDaily Forfeiture Case

    UPDATED 8:37 P.M. EDT (U.S.A.) A federal judge has denied motions by seven pro se litigants to intervene in the AdSurfDaily forfeiture case.

    Federal prosecutors seized tens of millions of dollars from ASD President Andy Bowdoin last year, saying his Florida company was running a Ponzi scheme and engaging in wire-fraud and money-laundering.

    Judge Rosemary Collyer issued the ruling late this afternoon, denying Curtis Richmond and six other individuals or companies standing in the ASD case. The ruling is a stunning blow to some ASD members, who had accused the government of a money grab and trumpeted the pro se pleadings, deeming Richmond a “hero.”

    In her ruling, Collyer said the pro se briefs were less than clear.

    “These individuals appear to allege either that they were victims of one or both of the auto-surf frauds or victims of the Government’s interference with their investment program,” she said.

    Filers denied standing include:

    • Pacific Ministry of Giving Intl. (Associated with Richmond)
    • Midwest Healing Ministries
    • Ronald Breckenfelder
    • John R. Moore
    • Michael Haws
    • Curtis Richmond (As an individual)
    • Chad Svendsen

    Collyer said in the ruling that the arguments by the would-be intervenors appeared to use the same blueprint.

    “The first of these, filed on February 3, 2009, is representative and seems to be a ‘form’ complaint inasmuch as the others are duplicates,” Collyer said. “It asserts (emphasis added):

    “The Claimant . . . comes to this Court to present [itself]. An Innocent Owner Qualified Under 18 U.S.C. 983(e) For A Motion To Set Aside Forfeiture & Civil Asset Forfeiture Reform Act of 2000 As Facts & Law Will Prove. This Court has a Duty & Obligation To Obey These 2 Federal Statutes that fall under Article VI Supremacy Clause of the U.S. Constitution and where Any Violation Will Be A Civil Rights Violation among other Federal Statute Violations.

    . . .

    [FOR THE RECORD, UPON THE OATH OF OFFICE AND BOND OF THE COURT (CLERK, JUDGES, AND ALL OTHER OFFICERS OF THE COURT] I STANDING IN GOD’s kingdom, accept for value and honor the Judges and Officers of the Court, particularly Judge Rosemary Collyer, U.S. Attorneys William Crowden and Jeffrey Taylor, their Oaths of Office without the UNITED STATES and each of you and I now have a Binding Private Contract ‘so help me God’, that each of you will Protect and Defend ALL my God given and Constitutionally Declared Rights. Any violation of a Binding Contract Is Subject To Legal Damages.”

    In issuing the denial, Collyer said the would-be intervenors failed to demonstrate “that they have a cognizable interest in the monies to be forfeited.

    “Fraud victims who voluntarily transfer their property to their wrongdoers do not retain a legal interest in their property; instead, such victims acquire a debt against their wrongdoers,” Collyer said.

    She added that the would-be intervenors lacked Constitutional standing in the case, but noted they might have a remedy other than the pro se approach they employed.

    “[I]t should be noted that to the extent movants were the victims of fraud, they are not without remedy,” Collyer said. “Under the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), 18 U.S.C. 981 et seq., the Government may use the forfeiture laws to recover property for the benefit of crime victims.”

    Without taking the government’s side, Collyer pointed out that the government is pursuing a prosecution of the forfeiture complaint on behalf of people it believes are victims of fraud.

    “[T]he Attorney General has the authority under 18 U.S.C. § 981(e)(6) to restore forfeited property ‘to any victim of the offense giving rise to the forfeiture,’” she said.  “As the Government notes in its brief (emphasis added):

    ‘If persons with civil causes of action against wrongdoers had the right to litigate their claims in forfeiture proceedings, forfeiture cases would become forums for general civil litigation of all manner of claims involving wrongdoers. Forfeiture would cease to be an effective tool of federal law enforcement; federal prosecutors would, in every case, have to weigh the benefits of pursuing assets and seeking their forfeiture against the prospect of being dragged into potentially unlimited civil litigation over torts, contracts, and other theories of liability beyond the ken of federal law enforcement.’”

    Collyer’s ruling did not pertain to pro se pleadings by ASD President Andy Bowdoin. But she cited Bowdoin’s pro se pleadings today, recounting some of the history of the case, including a decision Bowdoin had made in January to submit to the forfeiture while he was receiving advice from paid counsel.

    Collyer explained that the “Court mentions these other activities only because they bear on the Government’s ability to ‘compensate the frauds’ victims’ as it intends.”

    The judge suggested that pro se pleadings sometime make leaps of logic and that the mere filing of a document does not mean the filer has made a compelling argument for the relief he seeks — in Bowdoin’s case, reversing his earlier decision to submit to the forfeiture.

    Bowdoin, proceeding pro se, Collyer said, filed a “Notice of Rescission and Withdrawal of Release of Claims to Seized Property and Consent to Forfeiture.”

    The judge noted that the filing listed “a series of alleged examples of ‘fraud, trickery and deceit’” on the government’s part, and that the document concluded that “this rescission is now legally accomplished as a matter of law.”

    “Of course, it is not that simple to overcome a Court Order, but that issue is for another day,” Collyer said.

    Read the judge’s ruling.

    Read the judge’s order.

    See this for some history of Curtis Richmond litigation. Richmond is associated with a Utah Indian tribe a federal judge ruled a “complete sham” last year. The tribe sometimes is called the “Arby’s Indians” because it once held a meeting in an Arby’s restaurant in Provo.