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

Filing 171

REPLY to opposition to motion re 167 Unopposed MOTION Reissue Orders 156 and 163 and vacate 166 re 166 Order on Motion for Default Judgment, 156 Order on Motion to Withdraw,, Order on Motion for Hearing,,, 163 Order to Show Cause,Unopposed MOTION for Order Reissuing Orders 156, and 163 and vacating 166Unopposed MOTION Reissue Orders 156 and 163 and vacate 166 re 166 Order on Motion for Default Judgment, 156 Order on Motion to Withdraw,, Order on Motion for Hearing,,, 163 Order to Show Cause, filed by THOMAS A. BOWDOIN, JR. (Attachments: # 1 Affidavit In Support of Bowdoin's Reply, # 2 Affidavit In Support of Bowdoin's Reply)(Murray, Charles)

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

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UNITED 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 F L O R I D A 32351, etc., 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'S REPLY TO PLAINTIFF UNITED STATES GOVERNMENT'S OPPOSITION TO MOTION FOR RELIEF FROM THE JUDGMENT

C O M E S NOW, claimant, Thomas A. Bowdoin, Jr., by counsel and files this Reply to opposition to plaintiff's Opposition to Motion for Relief from the Judgment, filed F eb rua ry 9, 2010. Docket Entry #170. The movant respectfully requests that this Court g ra n t his Rule 60 motion, on the grounds that, prior to final deprivation of a c o n stitu tio n a lly protected and significant property interest, movant should be allowed to a rg u e the underlying probable cause for the initial seizure, as well as the alleged nexus b e tw e e n the property seized and the purported criminal activity. Certainly, movant has evidenced some inconsistency regarding the prosecution of h is claim to, and defense of, this res, but, movant submits that this apparent inconsistency re p re se n ts not strategical maneuvering, as alleged by the plaintiff, but mistaken reliance o n legal advice not aimed at best protecting Bowdoin's and AdSurfDaily, Inc.'s ("ASD") in te re s ts .

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M o v a n t through his Rule 60 motion, therefore asserted that it was error for this C o u rt to: (1) deny, by Order dated November 10, 2009 (Docket Entry #156), Bowdoin's m o t io n s to reinstate his status as claimant in this action, as requested in Docket Entries #66, 67, and 141; (2) issue the November 20, 2009 Order to Show Cause regarding the p e n d in g Motion for Entry of Default Judgment (Docket Entry #161), prior to allowance o f Bowdoin to litigate as claimant his claim to the property seized; and (3) enter final o rd e r of forfeiture, under Docket Entry #166, prior to expiration of the Fed. R. App. P. 4 (a )(1 )(B ) appeal period of 60 days after entry of the judgment appealed from. ARGUM ENT T h e core issue addressed in the movant's Rule 60 motion is whether Bowdoin, thro u g h the ill-advised release of claims back in January 2009 (Docket Entry #39), th e re b y lost standing to defend his and ASD's ownership interests in the seized res. While the United States is clearly asserting a position strictly construing civil procedure in order to forestall Bowdoin from now contesting the seizure and final forfeiture of these p ro p e rtie s, Bowdoin would submit that he is merely trying to correct a costly mistake w h ich occurred when he followed advice from former counsel, who had led him to b e lie v e that the January 2009 release of claims was prudent and based upon an express or im p lied deal with the government, assuring that his cooperation would provide that, if c o n v icte d upon any criminal indictment that might issue in this matter, the aged Bowdoin w o u ld be spared any sentence necessitating incarceration. Bowdoin seeks only, with his

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n e w counsel, to address the probable cause and nexus between the res and the alleged c rim in a l activity on the merits through adversarial trial. Certainly, owners of property se ize d by the government have an important and constitutionally protected property in te re st in the res arrested, and prior to final forfeiture, due process of law dictates that su c h owners be afforded a meaningful opportunity to defend on the merits. Contrary to th e assertion of the plaintiff that Bowdoin "had his day in Court, [but] he simply chose n o t to appear for it", (Opposition, Arg. ¶10), the Court has not yet, through adversarial h e a rin g or trial with Bowdoin, addressed the merits of this seizure, underlying criminal a lle g a tio n s , and forfeiture. Bowdoin Should Receive a Meaningful Opportunity to defend h is property and present his case. It is blackletter law in this circuit that, prior to deprivation of a major property in te re st by the government, an owner of property seized for civil forfeiture be afforded a m e a n in g f u l opportunity to defend that interest: T h e due process clause requires the government to provide sufficient n o tic e and a meaningful opportunity to be heard on the deprivation of a p r o te c te d liberty or property interest. Due process may be satisfied by e ith e r pre-deprivation procedures or adequate post-deprivation remedies. R a s o n v. Nicholson, 562 F.Supp.2d 153, 155 (D.D.C. 2008) (quotation formatting and c itatio n s omitted) (emphasis added); Peavey v. Holder, 657 F.Supp.2d 180 (D.D.C. 2009) (c itin g Rason). Bowdoin as owner-claimant possesses due process constitutional right to contest th e forfeiture of property and an owner of seized property, even post indictment, is 3

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e n title d to a hearing on the issues of the government's probable cause, and the alleged n e x u s between the assets seized and the alleged criminal activity: " [T ]h e fifth and sixth amendments, considered in combination, require an a d v e rs a ry, post-restraint, pretrial hearing as to probable cause that (a) the d e f en d a n t committed crimes that provide a basis for forfeiture, and (b) the p ro p e rties specified as forfeitable in the indictment are properly f o rf e ita b le ." U .S . v. E-Gold, Ltd., 521 F.3d 411, 419, 380 U.S.App.D.C. 310, 318 (D.C. Cir. 2008) (q u o tin g U.S. v. Monsanto, 924 F.2d 1186, 1188 (2d Cir. 1991)). Importantly, while some other circuits have limited this right to an adversarial e v id e n tia ry hearing to test probable cause and nexus of seized property to the unlawful a c tiv ity alleged to circumstances where the seized property is sought to be used to fund th e owner's criminal defense, the United States Court of Appeals for the District of C o lu m b ia Circuit did not so limit this right in the E-Gold decision. 521 F.3d at 421, 380 U .S .A p p .D .C . at 320. The policy rationale undergirding an owner's right to an adversarial hearing upon th e propriety and evidence justifying seizure and possible forfeiture are, to assure that no p erso n is deprived of valuable property interests absent constitutional and evidentiary s c r u t i n y. T h e right to prior notice and a hearing is central to the Constitution's c o m m a n d of due process. The purpose of this requirement is not only to e n su re abstract fair play to the individual, its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment-to m in im iz e substantively unfair or mistaken deprivations of property.

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J a m e s, 510 U.S. at 53, 114 S.Ct. at 500-01 (quotation formatting and citation omitted). A n o th e r purpose of the pre- or post-seizure adversarial hearing is to afford the o w n e r-c la im a n t the meaningful opportunity to present any defenses, such as the innocent o w n e r defense, or that the claimant did not knowingly utilize or generate proceeds in the fu rth era n ce of some criminal endeavor. F o r [forfeiture] claims . . . , the government has the initial burden of e sta b lish in g probable cause to believe that the property was used to f a cilita te the commission of a crime punishable under the statute. . . .Once d o n e , the burden shifts to the claimant to prove by a preponderance of the e v id e n c e one of two defenses: either that the property was not used to f a cilita te the commission of a felony, or that it was done so without the c la im a n t's knowledge or consent. . . . U .S . v. Prop. Identified as 1813 15Th Street N.W., Washington D.C., 956 F.Supp. 1029, 1 0 3 3 (D.D.C. 1997) (citations omitted). In the case at bar, despite the United States' argument to the contrary, (Opposition, A rg . ¶10), Bowdoin has not had his "day in Court" on the threshold evidentiary issues of (1 ) probable cause for the initial seizure and subsequent forfeiture, nor (2) the nexus b e tw e e n the alleged criminal activity and the seized res. The September 30 to October 1, 2 0 0 8 hearing referred to by the plaintiff was not an evidentiary hearing on probable cause a n d nexus ­ utilized to test the government's case against the property and assure that the o w n e r will not be deprived of a valuable property interest absent due process ­ but it was m e re ly a hearing to evaluate and decide the more narrow question of whether to grant D o c k e t Entry #7, an Emergency Motion for Return of Seized Funds. Also, despite the

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p la in tif f 's characterization that Bowdoin "had his day in Court, [but] he simply chose not to appear for it", (Opposition, Arg. ¶10), the transcripts for this hearing clearly show that a tto rn e ys and witnesses for Bowdoin and ASD did appear, (Docket Entry #33). That B o w d o in himself did not attend was at the advice of counsel. (Bowdoin Aff. ¶ 9.) In its Opposition to movant's Rule 60 Motion, the United States advances several a rg u m e n ts to support its position that Bowdoin is not entitled to Rule 60 relief from the d e f a u lt judgment and final order of forfeiture. I. I t Was Error For This Court To Deny Bowdoin's Requests To Rescind H is Release Of Claims Through The November 10, 2009 Order. F irs t, the government avers that Bowdoin voluntarily withdrew his claim to the seize d property through the January 13, 2009 Motion to Withdraw Claim (Docket Entry # 3 9 ) , and thus he is no longer a claimant with standing to contest filings in this in rem a c tio n , characterizing his subsequent repeated motions to rescind the release of claims as a calculated strategical move designed to best advance his personal interests. (Opposition a t 4, 12.) No longer a claimant with standing to object to filings in this matter, the United S ta te s then makes the illogical argument that Bowdoin was somehow negligent by not filing oppositions to the filings following the order finally disposing of Bowdoin's m u ltip le motions seeking to rescind his prior release of claims. The crux of this motion is th a t absent avoidance of the November 10, 2009 order denying the requested restoration o f his status as a claimant (Docket Entry #156), none of the subsequent filings can be (or c o u ld have been) responded to by Bowdoin (i.e., Docket Entries #163 and 166). 6

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II.

T h e Error Alleged Regarding The November 10, 2009 Order Was In I ts Denial Of The Reinstatement Of Bowdoin's Claimant Status, As A b se n t A Valid Claim, Bowdoin Has No Standing To Object To Any S u b s e q u e n t Filings. O n a related point, the United States argues that the movant alleged no error

reg ard ing the November 10, 2009 order (Docket Entry #156) denying as moot Bowdoin's s e v e ra l motions to rescind his release of claims. (Opposition, Arg. ¶2.) This conclusion is demonstrably incorrect ­ the error alleged by movant regarding entry of the November 1 0 , 2009 order, (Docket Entry #156), denying as moot Bowdoin's several motions to resc ind his release of claims, is that this Court's denial of reinstatement of Bowdoin's sta tu s of claimant deprived him of his due process right to a meaningful trial on the merits in this aciton, as well as the right to object to any subsequent filing in this action. (Motion ¶ 4 ). As acknowledged by the plaintiff in its Opposition, lacking status as claimant, B o w d o in lacks the standing as an intervening owner asserting valid claims of the res the s u b je c t of the in rem action: "If Mr. Bowdoin is not a claimant, he logically cannot show c a u s e why the forfeiture should nor be enforced". (Opposition, Arg. ¶7.) T h e government itself acknowledges the error Bowdoin seeks to overcome through th is Rule 60 motion: U n les s the Court revises the [November 10, 2009] ruling that Mr. Bowdoin h a s irrevocably withdrawn from the case, it will make no difference if the C o u rt then reissues the later order to show cause. (Opposition, Arg. ¶7.) The entry of the original release of claims here was tainted by unilateral mistake, m a d e by prior counsel. Bowdoin was assured by his prior counsel that, if he released his 7

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claim s in this action, he would not be facing any incarceration. This assertion ­ the very c o n sid e ra tio n upon which Bowdoin decided to relinquish his proprietary interest in a s u b s ta n tia l quantity of property ­ was in fact illusory. (Bowdoin Aff. ¶ 6.) Releases b a se d upon unilateral mistake may be rescinded: A court may void or reform a release on several grounds, including . . . u n ila te ra l . . . mistake, misrepresentation, duress, or under other c irc u m s ta n c es in which the parties' conduct evinces an intent to allow a d d itio n a l claims. Axion Corp. v. U.S., 68 Fed.Cl. 468, 475 (Fed.Cl. 2005) (emphasis added) (quotation p u n c tu a tio n and citation omitted). A "mistake," as would justify rescission of a prior re le a s e , is a belief that is not in accord with the facts. Cruz v. American Airlines, 150 F .S u p p .2 d 103, 116 (D.D.C. 2001). Here, Bowdoin's January 2009 motion to withdraw h is claim (Docket Entry #39) was entered solely based upon the unilateral mistaken belief th a t his release of claims would unequivocally assure that any subsequent criminal se n ten c e entered would not include any prison term. When Bowdoin discovered this c o n sid e ra tio n to be illusory, he naturally sought vigorously to rescind his release of c la im s . (Bowdoin Aff. ¶ 6.) A ll movant Bowdoin wants is the opportunity to meaningfully review the criminal alleg atio n s against him in an adversarial hearing, prior to any final order of forfeiture b e in g entered in this action. The prior two-day hearing in the Fall of 2008 on the narrow is s u e of deciding the Emergency Motion for Return of Seize Funds did not fulfill that o p p o rtu n ity. Certainly the due process interests in assuring that an owner of seized 8

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p ro p e rty is not erroneously deprived of said res outweigh the inconvenience of briefly s ta yin g entry of any final order of forfeiture until a meaningful hearing can be had on the m e r it s ? III. B o w d o in 's Counsel Did Not Receive Actual Notice From The E le c tr o n ic Filing After November 10, 2009, Constituting Rule 60(b)(1) " E x c u s a b le Neglect." D e sp ite the United States' incredulity, the movant's legal counsel to be noticed (C h a rle s Murray) did not in fact receive the electronic filings of any document filed in th is action after November 10, 2009, (Murray Aff. ¶ 3) Bowdoin lacked actual notice th a t any post-November 10, 2009 filings had been entered. Consequently, no response w a s filed to the Motion for Default Judgment (Docket Entry #161), the Order to Show C a u se on the default judgment (Docket Entry #163) or the January 4, 2009 Order granting s a id Motion for Default Judgment (Docket Entry #166). (Murray Aff. ¶ 4) Therefore, n e i th e r Bowdoin nor his counsel were on actual notice of these filings. T h e United States opines that Bowdoin's failure to file a return regarding the N o v e m b e r 20, 2009 Order to Show Cause based on lack of notice was unbelievable, g iv e n that Bowdoin electronically filed a motion in mid December, and would have had to have not checked the docket for a month. (Opposition, Arg. ¶8.) However, that is what h a p p e n ed . Bowdoin's counsel, Charles Murray, is a sole practitioner handling an average o f 50 to 100 cases simultaneously. It certainly would be an onerous requirement were he e x p e cte d to check the dockets of 50 to 100 cases daily, on the happenstance that notice

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m a y not have been electronically delivered of a filing. (Murray Aff. ¶ 5.) Prior to e le c tro n ic filing, hand delivery of hard copy filings assured actual notice; such is not the c a se with purely electronic filings. During the period in question (mid November 2009 th r o u g h early January 2010), Mr. Murray experienced as yet unidentified computer issues, w h e re in multiple email messages apparently never loaded to the firm's Inbox. (Murray A f f . ¶ 6.) A February 12, 2010 search through archived emails on the server located no E C F filings after November 10, 2009, nor the courtesy email apparently sent by Assistant U .S . Attorney Barry Wiegand on November 18, 2009. (Id. ¶ 7.) Thus, contrary to the U n ited State's assertion that "Mr. Bowdoin was on actual notice of the motion for a d e f a u lt judgment", this simply was not the case. (Id. ¶8.) In this Circuit, it has been held that problems with receiving actual notice through th e ECF system can constitute excusable neglect under Fed.R.Civ.P. 60(b)(1), especially w h e r e such lack of notice would undermine trial on the merits: F e d e ra l Rule of Civil Procedure 60(b)(1) provides that a court may re lie v e a party from an adverse judgment based on "mistake, inadvertence, su rp rise , or excusable neglect." Plaintiff's counsel avers that his firm is u n f a m ilia r with the Electronic Case Filing ("ECF") system used by this C o u rt, and apparently failed to receive e-mail notification of the status c o n f e re n c e . Under the circumstances, and in light of the risk of prejudice to p lain tiff should this Court not reach the merits of his case, the Court c o n sid e rs counsel's explanation to be excusable neglect within the meaning o f the Rule. Accordingly, the Court will reinstate the case if plaintiff is able to demonstrate an underlying meritorious claim. . . . N o r m a n v. U.S., 377 F.Supp.2d 96, 99 (D.D.C. 2005) (citations omitted), affirmed 467 F .3 d 773, 373 U.S.App.D.C. 312. As in Norman, here, Bowdoin and his counsel, in good 10

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f a ith , experienced technical problems receiving emails from the EFC system (as well as a c o u rte sy email regarding one filing from opposing counsel). As a result, in the interests o f resolving this action on its merits, movant respectfully requests relief from the January 4 , 2010 final order of forfeiture pursuant to Fed.R.Civ.P. Rule 60(b)(1). IV . R u le 60 Relief Is Warranted In Order To Assure Trial On The Merits R e g a r d in g The Propriety Of The United States' Criminal Allegations A g a in s t Bowdoin And ASD. T h e United States argues that Rule 60 relief is inapposite here because "Mr. B o w d o in cannot possibly show the meritorious defense necessary to grant a Rule 60 m o tio n " . (Opposition, Arg. ¶6). Whether this statement characterizes the impossibility of a meritorious defense as stemming from Bowdoin's lack of status as claimant with s ta n d in g (which is the error alleged regarding the November 10, 2009 Order, Docket E n try #156), or based instead upon plaintiff's assessment of the merits of the underlying c rim in a l allegations, this assertion is simply not true. C e rta in ly the Court could grant the Rule 60 motion regarding the November 10, 2 0 0 9 Order (Docket Entry #156), in which case Bowdoin would possess the standing he s e e k s. Thereafter, the "meritorious defense" issue would turn solely upon the merits of th e United States' characterization of the ASD business model as the unlawful sale of u n reg istere d securities. As developed in the pleadings of Bowdoin in this matter thus far, th e characterization of ASD as an illegal Ponzi scheme selling unregistered securities is f a r from a foreclosed issue. The very language of the Terms & Conditions agreement

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b e tw e e n ASD and its advertiser-members expressly and unequivocally states that ad p a c k ag e s were being sold, and not investments, nor was there any promise or guarantee of f in a n c ia l return. These two factors alone defeat the analysis of ASD ad packages as u n re g is te re d securities. It is well-established that owner-claimant Bowdoin has u n w a v e rin g ly asserted his belief that the business model of ASD was instead a multi-level m a rk e tin g enterprise, and he specifically hired specialist legal counsel Gerald Nehra to e v a lu a te the model, so as to assure that ASD operations would not run afoul of any f e d era l unregistered sale of securities law. (Bowdoin Aff. ¶ 4); (Transcript of Sep. 30, 2 0 0 8 Hearing at pp.103-06, Docket Entry #33). E v e n a cursory analysis of the criminal statutes at play in this case reveal serious is s u e s concerning the government's probable cause, allegedly justifying seizure and s u b s e q u e n t forfeiture. One of the major criminal offenses alleged against Bowdoin by the g o v e rn m e n t, as the basis for civil forfeiture pursuant to 18 U.S.C. 981, is money la u n d e rin g , and conspiracy to commit the same (Complaint Counts III & IV), which e x p re ss ly requires knowledge by the offender that the monetary transactions are unlawful: A s provided in § 1956, one of the several ways to commit money la u n d e rin g is by: k n o w in g that the property involved in a financial transaction re p re s e n ts the proceeds of some form of unlawful activity, c o n d u c t[ in g ] or attempt[ing] to conduct such a financial tra n sa c tio n which in fact involves the proceeds of specified u n la w f u l activity ... knowing that the transaction is designed in whole or in part to conceal or disguise the nature, the lo c a tio n , the source, the ownership, or the control of the 12

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p ro c e e d s of specified unlawful activity[.] 1 8 U.S.C. § 1956(a)(1)(B)(i). The court['s] . . . . approach is two-pronged: (1 ) that the claimant knew that the monetary instrument(s) involved in a f in a n c ia l transaction represented proceeds of some form of unlawful a c tiv ity and (2) with that knowledge used the proceeds to conduct or to a tte m p t to conduct such a financial transaction which in fact involves the p ro c e e d s of specified unlawful activity. . . . U .S . v. Funds from Prudential Sec., 362 F.Supp.2d 75, 79-80 (D.D.C. 2005) (quotation p u n c tu a tio n and citations omitted). Similarly, the other criminal offenses alleged against Bowdoin by the government r e q u ir e that the person accused possess knowledge that his actions constituted unlawful a c tiv i ty. Regarding wire fraud, and conspiracy to commit the same (Complaint Counts I a n d II), a person must have "devised or intend[ed] to devise any scheme or artifice to d e f r a u d , or for obtaining money or property by means of false or fraudulent pretenses, re p re se n ta tio n s , or promises, transmits or causes to be transmitted by means of wire[.]" 18 U.S.C.A. § 1343 (emphasis added). Although not appearing in the Complaint as a Count at all, unlawful sale of u n re g is te re d securities argued elsewhere by the government in this action, pursuant to 18 U .S .C .A . § 77e and 78j, and conspiracy to commit the same, have also been construed as re q u irin g knowledge by the seller: "In order to establish the essential elements of k n o w led g e and willfulness under the conspiracy count, the government was required to p ro v e either that appellants knew, or that they deliberately closed their eyes to, the n e c e s s ity for registering the S-H stock before selling it." U.S. v. Rubinson, 543 F.2d 951, 13

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9 5 9 (2d Cir. 1976), cert. denied 97 S.Ct. 139, 429 U.S. 850, 50 L.Ed.2d 124. Thus, each of the criminal counts and arguments alleged against Bowdoin, each of w h ic h supposedly support civil forfeiture of the assets seized in this action, require that B o w d o in knew he was engaged in unlawful activity, and intended to violate money lau n d e rin g , securities fraud, and wire fraud prohibitions. Indeed, the Complaint in this a c tio n expressly asserts that same, borrowing the phrasing of the afore cited federal s ta tu te s: "there is reasonable cause to believe that ASD, Thomas A. Bowdoin, Jr. and o th e rs , devised and intended to devise a scheme or artifice to defraud, or a scheme for o b ta in in g money or property by means of false or fraudulent pretenses. . . ." (Docket E n try #1 ¶69) (emphasis added). As each of these authorities reveal, that fact that Bowdoin believed (and still b e l ie v e s ) that the ASD business model was not selling unregistered securities, the a lle g a tio n s of wire fraud, money laundering, and securities law violations cannot be s u s ta in e d due to Bowdoin's lack of intent. This is precisely the reason that these issues n e e d to be fully developed in an adversarial trial on the merits. G iv e n that an enormous quantity of property is at stake, some of which properly b e lo n g s to the member-advertisers of ASD, and given that forfeiture would permanently d e p riv e innocent or rightful owners of these valuable properties, it is essential that Bowdoin be afforded a meaningful opportunity to test the plaintiff's probable cause a g a in s t him, as well as the purported nexus between each seized res and the alleged

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u n la w f u l activity prior to final order of forfeiture. CONCLUSION To avoid manifest injustice, owner-claimant Bowdoin respectfully requests that this Court grant his Rule 60 motion, and thereby postpone or stay default judgment, and final order of forfeiture, until Bowdoin may appear and protect his constitutionally protected property in t e re s ts . R e sp e c tf u lly submitted, R e sp e c tf u lly submitted,

S/ Michael R.N. McDonnell
M ic h a el R.N. McDonnel, Esq. 5 1 5 0 Tamiami Trail North N e w Gate Tower, Suite 501 N a p le s, Florida 34103 T e l: 2 3 9 -4 3 4 -7 7 1 1 F a c sim ile : 8 7 7 -6 1 3 -7 4 8 5 A tto rne y for Thomas A. Bowdoin, Jr.

S/ Charles A. Murray
C h a rle s A. Murray, Esq. 2 7 9 1 1 Crown Lake Blvd., Suite 223 Bonita Springs, Florida 34135 T e l: 2 3 9 - 649-7773 F a c sim ile : 2 3 9 - 262-3517 A t to r n e y for Thomas A. Bowdoin, Jr.

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CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the above and foregoing motion a n d accompanying memorandum has been delivered this 17 th day of February 2010, by E C F to insure delivery thereof to Vasu Muthyala DC Bar #496935 Assistant United S ta te s Attorney, U.S. Attorney's Office, Criminal Division, 555 Fourth Street, N.W., W a sh in g to n , D.C. 20530 and Barry Wiegand, U.S. ATTORNEY'S OFFICE, 555 Fourth S tre e t, N.W Room 4818, Washington, D.C. 20530. R e sp e c tf u lly submitted, R e sp e c tf u lly submitted,

S/ Michael R.N. McDonnell
M ic h a el R.N. McDonnel, Esq. A tto rne y for Thomas A. Bowdoin, Jr.

S/ Charles A. Murray
C h a rle s A. Murray, Esq. A t to r n e y for Thomas A. Bowdoin, Jr.