United States v. 8 Gilcrease Lane, Quincy, Florida 32351 ( 2009 )


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  •                              UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    )
    UNITED STATES OF AMERICA,                      )
    )
    Plaintiff,                      )
    )
    v.                                      )       Civil Action No. 08-1345 (RMC)
    )
    8 GILCREASE LANE, QUINCY,                      )
    FLORIDA 32351, et al.,                         )
    )
    Defendants.                     )
    )
    MEMORANDUM OPINION
    On August 5, 2008, the United States filed a Complaint against certain real properties
    in Florida and South Carolina, as well as $53 million in funds from ten Bank of America accounts,
    alleging that such properties and funds are the proceeds of wire fraud and subject to seizure and civil
    forfeiture in rem pursuant to 
    18 U.S.C. § 981
    (a)(1)(C). AdSurfDaily, Inc., Thomas A. Bowdoin, Jr.,
    and Bowdoin Harris Enterprises, Inc., the purported owners of the defendant properties, filed a
    verified claim in August 2008, Dkt. # 6, followed shortly thereafter by a motion seeking the return
    of the seized funds or, alternatively, to dismiss the Complaint on the theory that the Complaint was
    not properly verified. See Dkt. ## 8 & 9. The Court denied both motions, finding that Claimants
    were not entitled to the return of the seized properties and that the motion to dismiss lacked merit.
    See Nov. 11, 2008 Mem. Op., Dkt. # 35. Thereafter, Claimant Thomas A. Bowdoin, Jr., proceeding
    pro se,1 moved to set aside the forfeiture and dismiss the Complaint for lack of jurisdiction, Dkt. #
    1
    Because Mr. Bowdoin’s corporations cannot proceed pro se, see Rowland v. California Men’s
    Colony, 
    506 U.S. 194
    , 202 (1993), the Court presumes that Mr. Bowdoin did not file these motions
    on their behalf.
    49, and, separately, to dismiss the Complaint for “lack of advance fair notice,” Dkt. # 50. For the
    reasons set forth below, the Court will deny Mr. Bowdoin’s motions.
    Mr. Bowdoin moves to dismiss “for lack of jurisdiction under [Federal Rule of Civil
    Procedure] 60(b)(4),” pursuant to which the Court may relieve a party from a final judgment where
    such judgment is void. See Mot. to Set Aside Forfeiture and Dismiss (“Mot. to Set Aside”) [Dkt.
    # 49] at 1; Fed. R. Civ. P. 60(b)(4). As there is no final judgment here, the cited rule is inapplicable.
    Mr. Bowdoin further alleges that the Court lacks jurisdiction because the action “must be treated as
    quasi-criminal” rather than civil. Mot. to Set Aside at 1. Although Mr. Bowdoin does not explain
    why this should deprive the Court of jurisdiction, the Court will construe pro se Claimant’s motion
    as a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction. In addressing such
    a challenge, the plaintiff bears the burden of establishing that the court has subject matter
    jurisdiction. Erby v. United States, 
    424 F. Supp. 2d 180
    , 182 (D.D.C. 2006); Macharia v. United
    States, 
    238 F. Supp. 2d 13
    , 19 (D.D.C. 2002). The United States has met this burden, correctly
    arguing that federal district courts have original jurisdiction to entertain federal civil forfeiture cases
    pursuant to 
    28 U.S.C. § 1355
    . See 
    28 U.S.C. § 1355
    (a); United States v. All Funds in Account Nos.
    747.034/278 (Banco Espanol de Credito), 
    295 F.3d 23
    , 26 (D.C. Cir. 2002).
    Mr. Bowdoin further argues that because this action is “quasi-criminal” the
    Government should be required to prove its case by “clear and convincing” evidence rather than by
    a preponderance of the evidence. See Mot. to Set Aside [Dkt. # 49] at 2. A look at the Civil Asset
    Forfeiture Reform Act of 2000 (“CAFRA”), 
    18 U.S.C. § 981
    , et seq., demonstrates the fallacy of this
    argument. First, the Supreme Court has analyzed CAFRA and found that “there is little doubt that
    Congress intended these forfeitures to be civil proceedings,” United States v. Ursery, 
    518 U.S. 267
    ,
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    288 (1996), and that “there is little evidence . . . suggesting that forfeiture proceedings under . . . 
    18 U.S.C. § 981
    (a)(1)(A), are so punitive in form and effect as to render them criminal despite
    Congress’ intent to the contrary.” 
    Id. at 290
    . Second, CAFRA mandates that the Government’s
    burden of proof in a civil forfeiture case is by a preponderance of the evidence, not clear and
    convincing evidence. See 
    18 U.S.C. § 983
    (c)(1).
    Mr. Bowdoin also argues that the Government violated his due process rights because
    he did not have fair notice that his conduct was illegal. See Mot. to Dismiss [Dkt. # 50]. This
    argument is flawed, as well. The Government alleges that Mr. Bowdoin committed wire fraud,
    which is proscribed by 
    18 U.S.C. § 1343
    . See Compl. ¶ 1. To the extent Mr. Bowdoin's argument
    is one of mens rea — that is, that he had no intent to defraud — he is free to make that argument to
    the factfinder in a criminal proceeding. To the extent he is arguing that he was unaware that his
    conduct was illegal, “[t]he rule that ignorance of the law will not excuse is deep in our law.”
    Lambert v. State of California, 
    355 U.S. 225
    , 228 (1958) (internal citations and quotation marks
    omitted).
    It may be, however, that Mr. Bowdoin intends to argue that 
    18 U.S.C. § 1343
     is
    unconstitutionally vague. He cites a constitutional standard for vagueness, as set forth in Connally
    v. General Construction Co., 
    269 U.S. 385
    , 391 (1926), but does not address how that standard
    applies to the wire fraud statute in his case. Regardless, this Court does not find the wire fraud
    statute to be unconstitutionally vague. The Tenth Circuit has stated:
    It is significant in this regard to note that mail fraud is a specific
    intent crime. The Supreme Court has long recognized that the
    constitutionality of a vague statutory standard is closely related to
    whether that standard incorporates a requirement of mens rea.
    Although a specific intent requirement does not necessarily validate
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    a criminal statute against all vagueness challenges, it does eliminate
    the objection that the statute punishes the accused for an offense of
    which he was unaware.
    United States v. Stewart, 
    872 F.2d 957
    , 959 (10th Cir. 1989) (internal citation omitted). As the
    language of the wire fraud statute, 
    18 U.S.C. § 1343
    , mirrors that of the mail fraud statute, 
    13 U.S.C. § 1341
    , the Tenth Circuit’s analysis holds true here. Furthermore, where a claimant raises a
    vagueness challenge, the Court considers the statute not on its face but as applied to the particular
    facts of the case. See Chapman v. United States, 
    500 U.S. 453
    , 468 (1991); Maynard v. Cartwright,
    
    486 U.S. 356
    , 361 (1988). As the Government notes in its opposition, the Complaint alleges that
    Mr. Bowdoin operated a “Ponzi” scheme that promised its investors large returns but earned no true
    profits from which to pay them. See Gov’ts Opp’n [Dkt. # 57] at 4. Mr. Bowdoin does not dispute
    this fact in his motion to dismiss, but rather argues that he did not know his conduct was illegal. The
    wire fraud statute makes it clear that it is illegal to make false promises to individuals in order to
    induce them to invest money.
    Finally, Mr. Bowdoin states that “[t]here has been no probable cause determination
    in this forfeiture.” Mot. to Set Aside [Dkt. # 49] at 4. Under CAFRA, however, seizure is permitted
    for probable cause and pursuant to a valid search or where “a complaint for forfeiture has been filed
    in the United States district court and the court issued an arrest warrant in rem pursuant to the
    Supplemental Rules for Certain Admiralty and Maritime Claims.” 
    18 U.S.C. § 981
    (b)(2).
    Specifically, Supplemental Rule E(2)(a) requires the complaint to “state the circumstances from
    which the claim arises with such particularity that the defendant or claimant will be able . . . to
    commence an investigation of the facts and to frame a responsive pleading.” Supp. R. Certain Adm.
    & Mar. Cl. E(2)(a). Rule C(3)(a)(i) provides that, after reviewing the complaint, “if the conditions
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    for an in rem action appear to exist, the court must issue an order” for an arrest warrant for the
    property. Supp. R. Certain Adm. & Mar. Cl. C(3)(a)(i).
    The Government has complied with Rule E(2)(a) — the complaint describes the
    properties to be seized and explains in detail the alleged scheme of which they are believed to be a
    part. See, e.g., United States v. Seventy-Nine Thousand Three Hundred Twenty-One Dollars in
    United States Currency, 
    522 F. Supp. 2d 64
    , 72 (D.D.C. 2007) (finding a complaint sufficient under
    Rule E(2)(a) where it “set[] forth the legal grounds supporting forfeiture and provides, in detail, the
    circumstances surrounding the seizure of the defendant currency, including the date, location, name
    of the [person from whom it was seized], and admissions he allegedly made about the funds to
    government officials.”). It follows that the Court was required to issue an arrest warrant in rem for
    the property in question. See Supp. R. Certain Adm. & Mar. Cl. C(3)(a)(i). The Court did so here.
    See Dkt. # 1. Accordingly, Mr. Bowdoin’s motion to set aside asset forfeiture and dismiss the
    complaint [Dkt. # 49] and motion to dismiss for lack of fair advance notice [Dkt. # 50] will be
    denied.
    Date: September 18, 2009                                              /s/
    ROSEMARY M. COLLYER
    United States District Judge
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