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

Filing 30

REPLY re 27 Notice (Other) Claimant's Reply to Plaintiff's Opposition to Claimant's Petition to Determine Proportionality filed by ADSURFDAILY, INC.. (Fayad, Michael)

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UNITED STATES OF AMERICA v. 8 GILCREASE LANE, QUINCY, FLORIDA 32351 et al Doc. 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) Case: 1:08-cv-01345 ) ) Hon. Rosemary M. Collyer ) ) ) ) ) ) ) ) ) CLAIMANT'S REPLY TO ) PLAINTIFF'S OPPOSITION TO ) CLAIMANT'S PETITION TO ) DETERMINE PROPORTIONALITY ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES OF AMERICA Plaintiff, 8 GILCREASE LANE, QUINCY, FLORIDA 32351, ONE CONDO LOCATED ON NORTH OCEAN BOULEVARD IN MYRTLE BEACH, SOUTH CAROLINA and ALL FUNDS, INCLUDING APPROXIMATELY $53 MILLION HELD ON DEPOSIT AT BANK OF AMERICA ACCOUNTS IN THE NAMES OF (1) THOMAS A. BOWDOIN, JR., SOLE PROPRIETOR, DBA ADSURFDAILY, (2) CLARENCE BUSBY, JR. AND DAWN STOWERS, DBA GOLDEN PANDA AD BUILDER, AND (3) GOLDEN PANDA AD BUILDER, Defendants, and ADSURFDAILY, INC., THOMAS A. BOWDOIN, JR., AND BOWDOIN HARRIS ENTERPRISES, INC., Claimants. Claimant, AdSurfDaily, Inc. ("ASD"), hereby submits its reply to the Government's opposition to ASD's petition to determine proportionality, and states as follow: In further support of its Emergency Motion for Return of Seized Funds to Save Business and Jobs With Oversight and Monitoring and/or Evidentiary Hearing, and Motion to Dismiss and {TY047777;1} 1 Dockets.Justia.com Supporting Points of Law and Authorities (hereinafter "Emergency Motion") [DE #7] and its consolidated reply addressing both responses filed by the Government [DE # 16], ASD filed with this Court its Petition [DE # 27] seeking a determination as to whether the Government's seizure is constitutionally excessive due to disproportionality and placing the proportionality factor before the Court as a significant consideration in the emergency hearing. In response, the Government has filed an Opposition [DE # 29] arguing that ASD's Petition is both premature and irrelevant. Specifically, the Government contends that the "excessive fines analysis does not apply to forfeiture of criminal proceeds." Opposition at page 2. This is not the law. Rather, it is the "forfeiture of drug proceeds pursuant to 21 U.S.C. 882(a)(6) that can never be constitutionally excessive." U.S. v. One Parcel of Real Property Known as 16614 Cayuga Road, 69 Fed. Appx 915, 919-20 (10th Cir. 2003) (citing United States v. Lot 41, Berryhill Farm Estates, 128 F.3d 1386, 1395-96 (10th Cir. 1997). (emphasis added). Interestingly, the Government, in advancing its position, relies on a line of cases involving narcotics proceeds. Indeed, the Government's cites to the same One Parcel of Real Property Known as 16614 Cayuga Road case referenced above with accompanying parenthetical but failed to inform Counsel and the Court that the holding was limited to "drug proceeds". See id. The Government's reliance on this line of cases is not only misplaced, but somewhat misleading. To the extent the Government also relies on cases not involving drug proceeds, its reliance is likewise misplaced. For example, the Government cites to United States v. Real Property Identified As Parcel 03179-005R, 287 F.Supp.2d 45, 59-60 (D.D.C. 2003) for the blanket proposition that "forfeiture of property purchased with criminal fraud proceeds does not violate the excessive fines clause even if the property has substantially appreciated in value". {TY047777;1} 2 Again, the Government mischaracterizes the holding in Real Property Identified As Parcel 03179-005R to comport with its position. What the Real Property court concluded was that "because the converted propert y is traceable to the unlawful monetary transaction...forfeiture of the entire value of the...property would not violate the Eight Amendment" Id. at 60. (emphasis added). The exact determination ASD now seeks from this Court in its Petition that the Government's seizure and forfeiture of the entire $53 million would violate the Excessive Fines Clause. CONCLUSION For the foregoing reasons, ASD respectfully requests that this Court enter an order finding the Government's seizure of ASD's bank accounts disproportionate and in violation of the Excessive Fines Clause of the Eighth Amendment to the United States Constitution and requiring that an appropriate portion of the seized funds to be returned within two days of entry of an order, subject to the previously-outlined seven-oversight measures (acceptable to the Court) governing ASD's resumption of business. WHEREFORE, on behalf of Claimants, Counsel respectfully requests that the Court grant the relief described herein. Dated: September 30, 2008 Respectfully submitted, AKERMAN SENTERFITT By: /s/ Michael L. Fayad, Esq. D.C. Bar No. 91694 8100 Boone Boulevard, Suite 700 Vienna, VA 22182 Telephone: 703-790-8750 Fax: 703-448-1801 {TY047777;1} 3 -andJonathan Goodman, Esq. (Admitted to Appear Pro Hac Vice) Florida Bar Number: 371912 One Southeast Third Avenue 25th Floor Miami, FL 33131-1714 Phone: (305) 374-5600 Fax: (305) 374-5095 Email: jonathan.goodman@akerman.com ATTORNEYS FOR CLAIMANT ASD CERTIFICATE OF SERVICE I hereby certify that the foregoing Reply was served this 30th day of September, 2008 via the Court's electronic filing system upon the following counsel: William Rakestraw Cowden, Esq. U.S. Attorney's Office 555 Fourth Street, NW Washington, DC 20530 / s/ Michael L. Fayad, Esq. {TY047777;1} 4

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