We’re about to engage in some speculation on the AdSurfDaily case — and we’ll readily concede it’s exactly that: speculation. None of this should be taken as high truth or an assertion we are “right.” It should be taken as an exercise in critical reasoning.

This is a long post. Care to come along for a ride whose purpose is to explore possibilities?

The first thing you’ll need to do is suspend your disbelief and accept the premise that AdSurfDaily Inc. actually is capable of telling the truth — perhaps not the whole truth, but something that may amount to a convenient truth. This will be a leap for many of our readers, but if you want to accompany us on this ride you’ll have to willing to make this leap.

One of the reasons this requires a leap is because ASD President Andy Bowdoin’s words and actions strain credulity virtually across the board. After insisting for months ASD was perfectly legal, he now says it was illegal — but that ASD was denied “fair notice” of its illegal business practices.

At the moment, Bowdoin is leading yet another charge to have ASD members pummel the government with letters of support for a business he concedes is illegal. Bowdoin also encouraged members to contact talk-show host Glenn Beck.

Earlier he filed a petition for emergency relief that asked the government to return seized funds, saying the company couldn’t pay its rent or hosting bills, but didn’t mention ASD had more than $1 million parked offshore in Antigua. Only after prosecutors revealed the existence of the Antigua money did Bowdoin acknowledge it to members.

A few months after Bowdoin’s Antigua tie was exposed, the banking system on the Caribbean island nation was endangered with the exposure of the alleged Allen Stanford Ponzi scheme. The crisis rippled across the Caribbean and into Central and South America.

Back when Bowdoin still was saying ASD was legal, he demanded an evidentiary hearing to make the company’s case — and then took the 5th. Meanwhile, ASD’s fingerprints also are all over the AdViewGlobal autosurf, which recently announced its bank account had been suspended and yet extended a 200 percent, matching-bonus program — all while it was having trouble processing cash-out requests.

Bowdoin’s stepson is an AVG trustee. The company, which purported to be offshore, came to life after the ASD seizure.  AVG employed former ASD employees and used the ASD webroom. A graphic showing AVG’s street address as the same street address ASD used appeared in the webroom. It was removed after Web reporters pointed it out. Incredibly, AVG insisted there were no ASD ties. Equally incredibly, the person making the announcement was a former ASD employee.

AVG claimed to be headquartered in Uruguay. Its servers resolved to Panama, one of the countries affected by the alleged Stanford Ponzi scheme.

Bowdoin recently appeared in a video — now taken offline — for Paperless Access, a new surf company. He said the company could help ASD members recapture money seized by the government. He did not identify the owners of Paperless Access. Nor did he explain how the company was legal and able to comply with securities laws — while not operating as a Ponzi scheme.

The Issue

Assertions have been made that the U.S. Secret Service mistakenly left behind “several piles” of undeposited cashier’s checks at ASD headquarters during the August raid last year. Upon recognizing this after the agents left, ASD dutifully notified the Secret Service about the checks. Over a period of days, the Secret Service was said to have accepted some of the checks after being notified by ASD, but not all of them.

Bowdoin’s Take

Our source for this claim is none other than Andy Bowdoin himself. Here is what he said during a conference call last summer (italics and bold emphasis added):

“Now, to show how inefficient they were in doing their search at the office, they overlooked several piles of cashier’s checks,” Bowdoin said of the Secret Service, according to a transcript of his remarks during an Aug. 12 conference call. ASD members circulated the transcript.

“There was one that was made out for several hundred thousand dollars. Federal agents were present at the bank, and one of our people turned them in and said, ‘Here, you overlooked these.’ They went ahead and made a deposit so that they could seize that money,” Bowdoin continued.

“The next day [employees] found a little over a million dollars in checks that [the Secret Service] had missed. And they took them to the Secret Service office in Tallahassee and gave that to them. Monday, back in the office, they found a few more checks at the office totaling about $40 thousand to $50 thousand. They took those to the Secret Service office in Tallahassee, and they said they didn’t want any more money. They said to send it back to the members.

“Now, why didn’t they send all the cashier’s checks back that they took, back to the members? Why didn’t they do that, if they were looking out for the people? If they had been concerned about the people, they would have. The government has done a great injustice to these people by taking those cashier’s checks and cashing those checks into the U.S. Treasury.”

Bowdoin’s assertion that checks the Secret Service missed during the raid kept popping up over a period of days after the raid may be important.

Golden Panda

There also have been assertions that not all checks sent to Golden Panda Ad Builder made their way into government accounts for later use in a restitution fund for victims. Bob Guenther, for example, claims that about $1.5 million was returned to Golden Panda members, in part through his efforts.

Among the people to whom money was returned were Joe Shoop, an ASD promoter; an unnamed “high-profile Dallas Cowboy executive”; and retired and active-duty police officers in Texas and California, Guenther said.

Who recruited the members into Golden Panda is unclear. Guenther said the government should have returned all seized checks to ASD and Golden Panda members.

The Exercise In Critical Reasoning

What could the claim that the Secret Service mistakenly left behind “several piles” of checks mean?

Well, it could mean the Secret Service actually did mistakenly leave behind the checks and decided to accept some of them but not all of them them after being notified by ASD. There could be sensible, logical reasons completely consistent with the aims of law enforcement for not accepting all of the checks.

Not accepting all of the checks also could be a bureaucratic blunder.

We highly doubt the Secret Service mistakenly left behind “several piles” of checks — as Bowdoin claimed — at ASD headquarters, but concede it’s possible. It’s also possible that ASD was telling the truth when it said it notified the agency about the checks and that the Secret Service eventually told ASD it didn’t want any more checks — what Bowdoin and others have painted as investigative/administrative incompetence.

But what if it wasn’t an investigative/administrative error at all? What if the Secret Service made a tactical decision to leave a limited number of checks in the former flower shop that once housed ASD to see what would happen after agents left?

Such an approach could lead to clues that would enable the government to better fund a restitution account for victims.

In our view, no private citizen had any business working as an intermediary or third-party collector to gather money sent to ASD or Golden Panda. We’re not aware of any assertions that a third party collected money from ASD, but we are aware of a report that at least one ASD downline sponsor was pressured by a third party to return money the sponsor accepted directly from a recruit to pay for ASD “advertising.”

At the same time, we are aware of assertions that money was collected by a third party or parties and was returned to Golden Panda members.

The return of the money could have affected the government investigation and hindered its efforts to create the biggest resitution pool possible.

This is a money case. One of the ways to solve a money case is to follow the money. Even if the Secret Service mistakenly left the checks behind at ASD, not accepting some of the checks later might have created an opportunity for it to follow the money and produce new leads.

Now, understand: We have no insider’s knowledge from investigators — and, as noted above, this column is engaging in speculation. But what if the Secret Service, say, wasn’t satisfied at the time of the raid that it had identified all of ASD’s financial conduits?

It might make sense to leave some checks behind and then follow those checks if and when ASD acted on them. If higher crimes were suspected, leaving some money behind might help expose the tentacles of a criminal enterprise and lead to resources that could be used for victim compensation.

The same thing could be said about checks delivered to Golden Panda in Georgia. It is possible that the Secret Service wasn’t certain that it had located all of Golden Panda’s financial conduits and permitted Golden Panda to exercise some control so agents later could follow the money.

Want to add another layer?

What if ASD had what amounts to a banking slush fund set up offshore (or domestically) and kept uncashed checks in a secret domestic location, which is to say not at the headquarters building that was searched?

Are you ready to say for certain that ASD kept all undeposited checks at its headquarters? Are you ready to say for certain that the Secret Service missed “several piles” of checks when the man making the claim is a known fraudster who wouldn’t take the witness stand at his own evidentiary hearing?

What if ASD didn’t have an offshore or domestic slush fund but was in the process of setting one up, perhaps contemplating that it could fund the account with some of the undeposited checks? It would make sense for ASD to stash some checks outside the headquarters building until they could be used to fund the secret account.

Are you ready to rule that out?

And what if, after the raid, ASD considered the dramatic criminal consequences of such deception, and then created a cover story that the agents had left behind “several piles” of checks during their search?

One way to explain the sudden appearance of checks that had been stashed is to say the Secret Service missed them during the headquarters raid.

What if an ASD insider came to the building late at night — hours after the raid, while people were sleeping — and planted stashed checks inside for employees to find in a bid to create the appearance agents had done sloppy work in missing “piles” of checks?

What if ASD feared the Secret Service might suspect ASD had a slush fund offshore or elsewhere and knew any stashed checks effectively had become worthless? In other words, the mere act of depositing them in the slush fund would demonstrate the criminality. Holding onto checks that had been stashed could lead to uncomfortable questions from customers. So could depositing them in a secret bank.

ASD indeed could have notified the Secret Service about checks the company still had in its possession. It could have created a cover story that agents had “missed” the checks, when agents hadn’t missed them at all because they were not at the locations searched at the time of the search.

Mind you, we are not saying ASD created a cover story. What we’re saying is that it is common for criminals to create cover stories and for co-conspirators to agree to the stories. If ASD kept checks at a secret location, those checks would pose a problem that ASD could “solve” with a cover story that agents had missed “several piles” of checks.

An Ongoing Probe

The ASD case was (and is) an investigation by the Secret Service, the IRS and perhaps other law-enforcement agencies. It was (and is) an ongoing conspiracy investigation, and no agency involved is about to share the prongs of their investigative techniques and prosecution strategy.

This is why any efforts from individuals and groups post-seizure to force, say, Golden Panda to return funds to specific individuals very well could be problematic. It’s the prosecution’s case. The prosecution is empowered to investigate and prosecute the case without interference. Its theory of the case is that the assets of ASD and Golden Panda are the proceeds of a criminal enterprise and that a conspiracy existed.

For the purposes of this prosecution, the Feds effectively view ASD and Golden Panda as one in the same because of their native ties. The assets were seized in an “all funds”  forfeiture complaint. It is highly possible that prosecutors view the individual entities as components of a larger racketeering and money-laundering enterprise.

Racketeering. Money-laundering. Wire fraud. Mail fraud. Perhaps other types of criminal fraud.

If you’ve been paying attention, you know that private litigants have sued ASD President Andy Bowdoin, ASD attorney Robert Garner and Golden Panda President Clarence Busby in a civil RICO complaint. The theory is that businesses and individuals known and unknown were engaged in a racketeering enterprise.

The pool of money to compensate victims is now smaller because of private interventions by individuals and a group during an active investigation by authorities.

Money has been returned to private individuals by private individuals during a public investigation. We have seen no evidence that any person who intervened to return funds on behalf of another individual did so with the authority, support and encouragement of law enforcement.

We believe it best to let the prosecution handle its case as it sees fit. Freelancing by private individuals to return money never should have been part of this mix. The act alone created potential injustice for ASD and Golden Panda victims. Even before the forfeiture case has been litigated to conclusion, some victims have been made “whole” and have not been subjected to the haircut everyone else stands to get.

The money in the ASD and Golden Panda case was under arrest. Prosecutors have the authority to claw back all refunds that occurred as the result of the actions of an intermediary. At the same time, prosecutors can claw back money the Feds might have been monitoring or strategically permitting to enter the banking system to see where it eventually would land.