UNITED STATES OF AMERICA v. 8 GILCREASE LANE, QUINCY, FLORIDA 32351 et al

Filing 151

RESPONSE re 148 Supplemental Memorandum, filed by THOMAS A. BOWDOIN, JR. (Murray, Charles)

U N I T E D STATES OF AMERICA v. 8 GILCREASE LANE, QUINCY, FLORIDA 32351 et al

D o c . 151

U N IT E D STATES DISTRICT COURT F O R THE DISTRICT OF COLUMBIA U N IT E D STATES OF AMERICA, ) ) P la in tiff, ) ) v. ) ) 8 GILCREASE LANE, QUINCY ) F L O R I D A 32351, ET AL., ) ) D e f e n d a n t s. ) _______________________________________)

C iv il Action No. 08-1345 (RMC) ECF

T H O M A S A. BOWDOIN, JR.'S RESPONSE TO PLAINTIFF'S S U P P L E M E N T TO ITS OPPOSITION TO THOMAS A. BOWDOIN, JR.'S " R E N E W E D MOTION TO RESCIND RELEASE OF CLAIMS" T h o m a s A. Bowdoin, Jr., by counsel, responds to Plaintiff's Supplement to Its O p p o s itio n to Thomas A. Bowdoin, Jr.'s "Renewed Motion to Rescind Release of Claims" f ile d September 28, 2009. (See Document 148). T h e Plaintiff appears to be determined to convince this Court that Mr. Bowdoin keeps c h a n g in g his mind as to why the Court should allow rescind its January 22, 2009 order. The P lain tiff has supplemented its original opposition to Mr. Bowdoin's renewed motion to re sc in d the release of claims, adding allegations that are frivolous and circular, but as the P la in tif f once claimed about Mr. Bowdoin, contains no law.1 Indeed, the Plaintiff's original o p p o s itio n contained but one case, explaining the requirements for a Rule 60(b) motion. The P la in tif f provided the court with no law, then or now, applicable to Mr. Bowdoin's case.

The Plaintiff admits that it did not seek Mr. Bowdoin's permission to file its S u p p lem e n t to its original Opposition. Mr. Bowdoin has yet to give permission for this f ilin g .
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Instea d , the Plaintiff attempts to obfuscate and derogate any and all statements made by Mr. B o w d o in . M r. Bowdoin did not file a new "public" reason for requesting a rescission. It is not d if f ic u lt to believe that a person placed in Mr. Bowdoin's position, facing possible jail time a t 74 years of age and losing the company he built up, would have put Mr. Bowdoin in a state o f mind wherein he agreed to do what his attorney was telling him to do and what the g o v ern m en t was urging him to do. It is at these particular times when it is critical for a c itiz e n to have proper legal counsel and a full understanding of the import of any action ta k e n . T h e Plaintiff makes a point of stating that Mr. Bowdoin changes his story. Mr. B o w d o in has not done so. While Mr. Bowdoin may still believe that the government acted im p ro p e rly, it is also completely appropriate for Mr. Bowdoin to also believe, rightfully, that h is attorney was not giving Mr. Bowdoin the proper advice or providing Mr. Bowdoin with a ll of the necessary information with which to make the decision to sign the release of claims. T h e Plaintiff takes great pains to provide the Court with a transcribed telephone call m a d e by Mr. Bowdoin on September 21, 2009, in which Mr. Bowdoin states: A f te r our original law firm Ackerman had done all that they could do, they re c o m m e n d that I get a criminal attorney. Now Ackerman law firm said that c rim i n a l charges would be the next step from the government. So, they re c o m m e n d e d a firm in Tallahassee, who' the previous U.S. Attorney. I r e ta in e d the firm, but after a few months, I was unhappy with their results. T h e y wanted me to accept a plea deal that would not have been beneficial to e v e r yo n e . So I terminated them and hired another attorney on the west coast o f Florida. (See Attachment to Document 148-2, filed September 28, 2009).

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G iv e n the turn of events, it is not surprising that Mr. Bowdoin was unhappy with his f o rm e r attorney. It is not surprising that Mr. Bowdoin is angry with the government and his a tto r n e y. He signs a release of claims, and now the government is pursuing criminal charges. T h e Plaintiff points to another paragraph in the telephone conversation in which Mr. B o w d o in states that he is determined to fight the criminal charges: I have decided to stop talking with the government, and get before a jury to p le a d our case. And I believe that our present attorneys ­ with our present a tto rn e ys ­ that we can build a winning case. We have three expert witnesses th a t are willing to testify that our program was not a Ponzi. The government d o e sn 't have any right to keep your money, and we want to get your money b a c k , and we'd like to restart ASD. We'd be willing to tweak the program if th e government desires, and those of you that'd like to restart with ASD, when yo u get your money, you'd have the right to do so. Now I haven't hurt anyone. W e 'v e only made money for our members. And ASD did not have a victim u n til the government stepped in and crushed the company. (See Attachment to Document 148-2, filed September 28, 2009). M r . Bowdoin was doing what he truly must do at this point in time. He must protest h is innocence and take the case to trial. The Plaintiff seems particularly intent in trying to p e rs u a d e this Court that Mr. Bowdoin knew what he was doing and, strangely, should be h a p p y with the position in which he currently finds himself. M r. Bowdoin is not happy. He did not receive proper counseling. Mr. Bowdoin sh o u ld have been told from the very beginning that the government was not going to bargain w ith him. There was no mutual release wherein the government stated "no prosecution" or "n o jail time." There was no mutual release wherein the government stated that it would a rg u e for a reduced sentence. It was all smoke and mirrors, and Mr. Bowdoin's attorney did n o th in g to cut threw it.

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A release of claims is usually accompanied by an agreement by the government. See G o n z a le z v. Kokot, 314 F.3d 311 (C.A.7.Ind.,2002) (Before enforcing a release-dismissal a g r e e m e n t , releasing civil claims in exchange for dismissal of criminal charges, a court must f in d that the agreement was voluntary, that there was no evidence of prosecutorial m is c o n d u c t, and that enforcement of this agreement would not adversely affect the relevant p u b lic interests.); MacBoyle v. City of Parma, 383 F.3d 456 (C.A.6.Ohio,2004) (A "released ism iss a l agreement," whereby a criminal defendant releases his right to file a civil rights a c tio n in return for a prosecutor's dismissal of pending criminal charges, is generally e n f o r c e a b l e if (1) it was entered into voluntarily, (2) there is no evidence of prosecutorial m isc o n d u c t, and (3) the enforcement furthers the public interest.); Penn v. City of M o n tg o m e r y , Alabama, 273 F.Supp.2d 1229 (M.D.Ala.N.Div.,2003) (In evaluating validity o f plaintiff's release of § 1983 claims against city and its officers for police misconduct in e x c h an g e for dismissal of plaintiff's domestic violence charge, District Court would examine w hether defendants had sufficiently shown that agreement was enforceable because (1) it was v o lu n ta ry; (2) there was no evidence of prosecutorial misconduct; and (3) enforcement of ag ree m en t would not adversely affect the relevant public interests.). In each of these case, and certainly hundreds of others, the release of claims was a c c o m p a n i e d by an agreement to dismiss the charges. In Mr. Bowdoin's case, he released h is claims and received nothing in return. Mr. Bowdoin signed a release of claims in the civil a c tio n , thinking that it was an exchange for the government possibly foregoing criminal c h a rg e s. Clearly, the government had no intention of doing so. Thus, the Plaintiff received

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a release of claims but gave nothing in return. There was no consideration for Mr. Bowdoin's r e le a s e of claims. T h e Sixth Circuit carefully reviews certain factors in determining the validity of a re le a se in a federal cause of action: F e d e r a l common law controls the validity of a release of a federal cause of a c tio n . Street v. J.C. Bradford & Co., 886 F.2d 1472, 1481 (6th Cir.1989). For d is c rim in a tio n cases, the Sixth Circuit uses a balancing test to determine w h e th e r a settlement agreement was entered into knowingly and voluntarily. W e consider the following factors: (1) Nicklin's experience, background, and e d u c atio n ; (2) the amount of time Nicklin had to consider the release, in c lu d in g whether he had the opportunity to consult with a lawyer; (3) the c lar ity of the release; (4) the consideration for the release; and (5) the totality o f the circumstances. See Adams v. Philip Morris, Inc., 67 F.3d 580, 583 (6th C i r.1 9 9 5 ) . N ic k lin v. Henderson, 352 F.3d 1077, 1080 (C.A.6 (Ky.),2003). N o te that the court looks to the consideration for the release. In the present case there w a s no consideration at all. The Sixth Circuit also considers the totality of the circumstances. During the entire tim e the government was demanding the release of claims from Mr. Bowdoin, the specter of c rim in a l prosecution was hanging over a 74-year old man's life. This was a frightening and d ifficu lt time for Mr. Bowdoin, whose attorney kept telling him to sign the release and there w as a "possibility" of no jail time. The government knew this. The government knew there w a s no consideration for the release of claims. Mr. Bowdoin's attorney should have been c o m p lete ly forthright with Mr. Bowdoin. He was not. T h e Plaintiff, for five straight pages, argues that Mr. Bowdoin said this, and Mr. B o w d o in said that, or Mr. Bowdoin did this or Mr. Bowdoin did that. However, not once in 5

f iv e pages, does the Plaintiff provide this Court with any law on the matter. The Plaintiff's p o s itio n is indefensible. C o n c lu s io n F o r the reasons stated above, Mr. Bowdoin's Renewed Motion to Rescind Release of C la im s and his Motion for Evidentiary Hearing should be granted. O c to b e r 7, 2009 R e sp e c tf u lly submitted, T H O M A S A. BOWDOIN, JR.

B y:

_________________________________ C h a rle s A. Murray, Esq. 2 7 9 1 1 Crown Lake Blvd., Suite 223 B o n ita Springs, FL 34135-4218 P h o n e : 239-649-7773 F a x : 239-262-3517 E m a il: [e-mail] C o u n s e l to Thomas A. Bowdoin, Jr., and A d S u r fD a ily , Inc.

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C E R T I F I C A T E OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing has been f u rn is h e d via, email and regular First Class U.S. Mail to William R. Cowden and Vasu B. M u th ya la , Assistant United States Attorneys, Asset Forfeiture Unit, 555 4 th Street, N.W., W a sh in g to n , D.C. 20530 this 8 th day of October, 2009.

_________________________________ C h a rle s A. Murray, Esq. A tto rn e y for the Claimants T h o m a s A. Bowdoin, Jr. and AdSurfDaily

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