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United States of America v. Thomas anderson Bowdoin

March 16, 2011

UNITED STATES OF AMERICA
v.
THOMAS ANDERSON BOWDOIN, JR., DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Thomas Anderson Bowdoin, Jr., indicted by a Grand Jury in the District of Columbia on charges of Wire Fraud, Securities Fraud, Aiding and Abetting, and the Unlawful Sale of Unregistered Securities, moves to transfer this prosecution to the Northern District of Florida, Tallahassee Division, for the convenience of the parties and witnesses and in the interests of justice. However, this criminal prosecution is only the most recent iteration of a lengthy investigation and civil enforcement actions against Mr. Bowdoin and AdSurfDaily, Inc. (also "ASD"), an alleged Ponzi scheme that Mr. Bowdoin operated on the Internet, which has been ongoing in this Court since 2008. See United States v. Funds Totaling $496,505.34, 10-cv-2147 (RMC); United States v. 2 North Adams Street, Quincy, Florida 32351, 08-cv-2205 (RMC); United States v. 8 Gilcrease Lane, Quincy, Florida 32351, 08-cv-1345 (RMC). Mr. Bowdoin and counsel have appeared multiple times. After carefully considering the briefs, and holding oral argument on the motion, the Court declines to transfer the case.

I. FACTS

Litigation between Mr. Bowdoin and the Government over his Internet activities began on August 8, 2008, when the United States filed a civil forfeiture action, in rem, to enforce (1) 18 U.S.C. § 981(a)(1)(C), which authorizes the forfeiture of any property that constitutes or is derived from proceeds traceable to, inter alia, any offense, or conspiracy to commit any offense, that is a "specified unlawful activity" set forth in the federal anti-money laundering statutes, including wire fraud (18 U.S.C. § 1343); and (2) 18 U.S.C. § 981(a)(1)(A), which authorizes the forfeiture of any property that is involved in a money laundering offense (18 U.S.C. §§ 1956 or 1957). 8 Gilcrease Lane, 08-cv-1343 (RMC), Compl. [Dkt. # 1] ¶ 1. The defendant real properties were: (a) 8 Gilcrease Lane, Quincy, Florida 94590 and (b) one condominium owned by Thomas A. Bowdoin, Jr., in Myrtle Beach, South Carolina. Compl. ¶ 4. The defendant personal properties consisted of approximately $53 million in various accounts at the Bank of America, held in the name of Thomas A. Bowdoin, Jr., Sole Proprietor, d/b/a AdSurfDaily or d/b/a Golden Panda Ad Builder. Id. ¶ 5. The complaint alleged that "ASD is in fact operating a paid auto-surfing program and that program is, in reality, merely a Ponzi scheme." Id. ¶ 16.*fn1 Mr. Bowdoin was alleged to be the Chief Executive Officer and President of ASD. Id. ¶ 18.

ASD, Mr. Bowdoin, and Bowdoin/Harris Enterprises, Inc., filed verified claims for the real properties and bank funds that the Government had seized. 8 Gilcrease Lane,, 08-cv-1345 (RMC), Verified Claims [Dkt. # 6]. ASD filed an emergency motion in this Court for return of the seized funds and to dismiss. Id., Emergency Mot. for Return of Seized Funds [Dkt. #7]. After a two-day evidentiary hearing, at which Mr. Bowdoin appeared and was eager to testify (but did not), the Court denied the motion, finding that "it lacks legal authority under 18 U.S.C. § 981(f) to order release of the seized funds and that ASD has failed to demonstrate that its assets are not proceeds derived from unlawful activity." Id., Mem. Op. [Dkt. # 35] 1.

Thereafter, on January 13, 2009, ASD, Mr. Bowdoin, and Bowdoin/Harris Enterprises, Inc. withdrew and released their claims with prejudice and consented to forfeiture. Id., Mot. to Withdraw Claims [Dkt. # 39] ("Claimants consent to the forfeiture of the properties for which they have asserted claims (i.e., the real property at 8 Gilcrease Lane and the bank account balances at the Bank of America in the names of Thomas A. Bowdoin, Jr., sole proprietor, d/b/a AdSurfDaily) and expressly announce their intention to not contest the Government's forfeiture efforts against the properties for which they have asserted claims.").

Nonetheless, on February 27, 2009, Mr. Bowdoin filed a pro se motion on his own behalf to set aside the forfeiture and to dismiss the case for lack of jurisdiction, arguing that although the case "may be filed as a civil action, it must be treated as quasi-criminal with a standard of review of proof of clear and convincing evidence, not just preponderance of evidence." Id., Mot. to Set Aside Asset Forfeiture [Dkt. # 49] 1. Mr. Bowdoin also filed a pro se motion to dismiss for lack of advance fair notice, to wit: "Defendant did not know or realize that his conduct was illegal until this instant case was filed against him [and] due process requires that a person be given fair notice as to what constitutes illegal conduct so that he may conform his conduct to the requirements of the law." Id., Mot. to Dismiss Due to Lack of Advance Notice [Dkt. # 50] 1. In addition, Mr. Bowdoin filed a pro se "Notice of Rescission and Withdrawal of Release of Claims to Seized Property and Consent to Forfeiture," blaming his counsel for bad advice. Id., Notice [Dkt. # 55] ¶ 2. By decision dated September 18, 2009, the Court denied Mr. Bowdoin's motion to set aside his consent to asset forfeiture and dismiss the complaint and denied the motion to dismiss for lack of fair advance notice. Id., Mem. Op. [Dkt. # 138].

On the same day, Mr. Bowdoin and his business, Bowdoin Harris Enterprises, represented by Attorney Charles Murray, filed a second motion requesting an evidentiary hearing on a renewed motion to rescind the release of claims for the seized real and personal property. Id., Second Mot. Requesting Evidentiary Hrg. [Dkt. # 141]. In its Memorandum Opinion on this second motion, the Court noted:

Mr. Bowdoin seeks to restore his right to litigate his claim to the defendant properties, arguing that his prior counsel gave him bad advice and the Government tricked him into releasing his claims. As Mr. Bowdoin's own descriptions of events fail to support these arguments, and there is no other reason to grant reconsideration under Rule 60(b), the Court will deny the motion.

Id., Mem. Op. [Dkt. # 155] 1.

When the Government moved for default judgment on November 17, 2009, see id., Mot. for Default J. [Dkt. # 161], the Court issued an Order to Show Cause to all claimants to the property, including Mr. Bowdoin, to show cause why the motion should not be granted. Id., Order to Show Cause [Dkt. # 163]. Failing response, on January 4, 2010, the Court issued an order granting default judgment against the properties and other assets. Id., Order [Dkt. # 166]. Mr. Bowdoin filed a motion for relief from judgment. See id., Mot. for Relief [Dkt. # 167]. The Court denied this motion by Minute Order on February 22, 2010, and Mr. Bowdoin filed a notice of appeal on March 1, 2010. That matter remains under advisement before the U.S. Court of Appeals for the D.C. Circuit.

A second civil complaint for forfeiture in rem was filed by the Government on December 19, 2008, seeking to enforce (1) 18 U.S.C. § 981(a)(1)(C), which authorizes the forfeiture of any property that constitutes or is derived from proceeds traceable to, inter alia, any offense, or conspiracy to commit any offense, including wire fraud (18 U.S.C. § 1343) and securities fraud (15 U.S.C. § 77e(a), (c), 78j(b), and 17 C.F.R. 240.10b-5); and (2) 18 U.S.C. § 981(a)(1)(A), which authorizes the forfeiture of any property that is involved in a money laundering offense (18 U.S.C. §§ 1956 or 1957). United States v. 2 North Adams Street, Quincy, Florida 32351, 08-cv-2205 (RMC), Compl. [Dkt. # 1] ¶ 1. The defendant real properties were 2 North Adams Street, Quincy, Florida, and 205 Cactus Street, Tallahassee, Florida. Id. ¶ 4. The defendant personal properties were: (a) $634,266.13; (b) one 2009 Lincoln MKS vehicle; (c) a 2008 Triton 20 foot Cabana boat;(d) two 2007 Bombardier jet skis; (e) one 2009 Acura TXS vehicle; (f) one 2008 Honda CRV vehicle; and (g) computers and other equipment. Id. ¶ 5.

Neither Mr. Bowdoin nor any other claimant filed a verified claim to the relevant properties and, in response to the Government's motion for default judgment and forfeiture, see 2 North Adams Street, 08-cv-2205, Mot. for Default J. [Dkt. # 10], the Court issued an Order to Show Cause why the motion should not be granted. See id., Order [Dkt. # 11]. Mr. Bowdoin responded and argued that an adversarial evidentiary hearing was required, regarding probable cause on the underlying criminal offense and the evidentiary nexus between the seized properties and the alleged criminal scheme. Id., Opp'n [Dkt. # 12]. On that motion, Mr. Bowdoin was represented by Charles A. Murray and Michael R.N. McDonnell, who continue as his counsel in this criminal case. Because Mr. Bowdoin had failed to file a verified claim to the property at issue in 2 North Adams Street, the Government's motion for default judgment and judgment of forfeiture was granted. See id., Order [Dkt. ## 14 & 15].

Mr. Bowdoin appealed, and the Circuit dismissed the appeal. Id., Order of the U.S. Court of Appeals for the D.C. Cir. [Dkt. # 20]. The Circuit "ORDERED that the motion to dismiss be granted. The purported appellants did not file a verified claim in this civil forfeiture action, and thus are not parties to this action." Id.

A third civil complaint for forfeiture in rem was filed by the Government on December 17, 2010, seeking to enforce 18 U.S.C. § 981(a)(1)(C), which authorizes the forfeiture of any property that constitutes or is derived from proceeds traceable to, inter alia, any offense, or conspiracy to commit any offense, including wire fraud (18 U.S.C. § 1343), securities fraud (15 U.S.C. § 78j(b) and 78ff; 17 C.F.R. 240.10b-5); and unlawful sale of unregistered securities (15 U.S.C. § 77e(a)(2), 77x; 17 C.F.R. 240.144). United States v. Funds Totaling $496,505.34, 10-cv-2147 (RMC), Compl. [Dkt. # 1] at 1-2. The defendant personal properties consisted of approximately $795,000 in various accounts at the Bank of America, Wachovia Bank, and Flagstar Bank, held in the name of Thomas A. Bowdoin, Jr. (d/b/a ASD or Golden Panda Ad Builder), Robyn Lynn, or Erma Seabaugh. Id. ¶1.

The Court recites this tortured history only to demonstrate Mr. Bowdoin's consistent position as a litigant in the District of Columbia, often with his current counsel representing him. He has repeatedly argued vociferously, if tardily, for an evidentiary hearing on the underlying alleged criminal activities, which a criminal trial would provide. No murmur has ever been made concerning a change of venue. This history bears directly on the motion to transfer.

This criminal matter was initiated by a Sealed Indictment as to Mr. Bowdoin, filed on November 23, 2010. Messrs. Murray and McDonnell again represent him. Counsel for Mr. Bowdoin filed the instant ...


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