U.S. v. 8 Gilcrease Lane

• Decision Date: 10 November 2009
• Docket Number: Civil Action No. 08-1345 (RMC).
• Parties: UNITED STATES of America, Plaintiff, v. 8 GILCREASE LANE, Quincy, Florida 32351, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 128

668 F.Supp.2d 128

UNITED STATES of America, Plaintiff, v. 8 GILCREASE LANE, Quincy, Florida 32351, et al., Defendants.

Civil Action No. 08-1345 (RMC).

United States District Court, District of Columbia.

November 10, 2009.

William Rakestraw Cowden, Barry Wiegand, Vasu B. Muthyala, U.S. Attorney's Office, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Thomas A. Bowdoin, Jr., renews his motion to vacate an Order approving his release of claims, see Dkt. # 41, in this civil in rem forfeiture proceeding. 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. See Bowdoin's Mots. to Rescind Withdrawal of Claims [Dkt. ## 66, 67, and 131]. 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.

I. FACTS

The Government filed this civil forfeiture action on August 6, 2008, asserting that certain real properties, bank accounts and other things were subject to forfeiture because they were obtained with proceeds from an illegal Internet Ponzi scheme.¹ See Compl. [Dkt. # 1]. On August 15, 2008, verified claims to the properties were filed by Bowdoin/Harris Enterprises, Inc.; AdSurf Daily, Inc. ("ASD"); and Mr. Bowdoin. See Dkt. # 6. After meeting with the Government, on the advice of his counsel, Mr. Bowdoin filed a motion to withdraw his claims, Dkt. # 39, which was granted by Court Order on January 22, 2009. See Dkt. # 41.

Mr. Bowdoin now states that his lawyers in the civil forfeiture case urged him to retain Steven Dobson of Dobson and Smith as his criminal attorney for the anticipated criminal prosecution. He did so and thereafter Mr. Dobson met in Washington, D.C., on two occasions with William Cowden, an attorney with the Department of Justice. Further, according to Mr. Bowdoin:

In December 2008 and January 2009, Dobson and I met with Cowden and other government officials in Tallahassee, Florida to discuss matters concerning the issues of criminal liability and the civil in rem forfeiture proceeding. Before meeting with Cowden, Dobson asked that I sign an agreement expressing my intent to cooperate with the Department of Justice and releasing the assets. I did that. Dobson represented to me that I could possibly avoid prison or get a reduced sentence if I agreed to disclose details concerning ASD and releasing the assets. I agreed to cooperate and release the assets. I also signed a document stating that I would release my claims in the above-captioned civil in rem forfeiture proceeding, again thinking that necessary for a possible avoidance of a prison term. I did all of this on the understanding that by cooperating I could possibly avoid a prison sentence. I am 74 years old and have a heart condition. Any measure of prison time would constitute a life sentence. Given the possibility of a long prison term, I agreed not to exercise my rights in the civil forfeiture proceeding, anticipating from representations made by Dobson that this could possibly keep me out of prison. Dobson retained my signed agreement and provided it to DOJ Counsel before my initial in-person meeting.

During our meeting in Tallahassee, Florida, Cowden requested that I dismiss my claims in the above-captioned civil forfeiture proceeding. Dobson provided Cowden with my signed agreement. I was led to believe that a grand jury indictment was forthcoming. My attorney represented to me that Cowden had spoken to a judge, persuaded the judge that I was a flight risk, and that I would be held without bail following a prompt indictment. Dobson led me to believe that I would be promptly arrested if I failed to cooperate with Government counsel.

Dobson stated that unless I cooperated, Cowden was prepared to bring criminal actions for wire fraud, money laundering, and conspiracy to commit same. Dobson represented that Cowden would seek the maximum sentences for each charge, which would be in the range of 20-40 years imprisonment.

Dobson lead [sic] me to believe that if I cooperated there was a possibility that I would not be incarcerated or imprisoned.

Based on representations by Dobson, I believed that my cooperation would still result in a criminal sentence that could possibly not include imprisonment or incarceration. Dobson said that none of this could be put in writing. But Dobson had lied to me.

. . .

On January 13, 2009, my attorneys filed a release of claims to seized property and consent to forfeiture. On January 22, 2009, the Court entered its Order granting that motion.

During the course of my two meetings with government counsel, I became aware contrary to what I was led to believe by my counsel that my agreement to freely discuss my involvement with ASD still included a definite imprisonment. . . . [A]fter I had already revealed significant information against my interest, I came to understand that I faced incarceration following a criminal action.

Cowden explained that I would be subject to the maximum penalty under the statute, but that he would inform the judge that I cooperated. I slowly came to understand what I understood from Dobson not to be the case: that my agreement to cooperate provided me no benefit in the criminal matter except the possibility of a reduced sentence if the judge desired which would still be a life sentence. I came to realize that the pleadings were filed not in exchange for the government's relinquishment of seeking a prison sentence but on no agreement at all. That was against my wishes then and is against my wishes now. I had been hoodwinked.

Bowdoin's Resp. to Order to Show Cause [Dkt. # 131], Ex. 1 (Affidavit of Thomas A. Bowdoin, Jr.) ("Bowdoin Aff.") ¶¶ 7-12, 14-16.

Sometime in February 2009, Mr. Bowdoin appears to have decided he would no longer cooperate with the government. Starting on February 27, 2009, he began to file, pro se, a series of motions. See Dkt. ## 47, 48, 49, 50, & 55. One such pleading, titled "Notice of Rescission and Withdrawal of Release of Claims to Seized Property and Consent to Forfeiture," see Dkt. # 47, represented Mr. Bowdoin's effort to notify the Court and Government of his intention to re-assert his claims and those of his corporate co-claimants in this in rem proceeding. After he retained new counsel, on May 7, 2009, Mr. Bowdoin moved to withdraw the notice and promised, through counsel, to file a more substantive argument on or before May 15, 2009. See Dkt. ## 66 & 67. On July 24, 2009, the Court entered an order to show cause why this matter should not proceed without further litigation from Mr. Bowdoin. In response, Mr. Bowdoin filed the instant Renewed Motion to Rescind Release of Claims, which is now ripe for decision. See Dkt. # 131.

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 60(b) provides for relief from a judgment or order due to: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct by an opposing party; (4) void judgment; (5) satisfied, released, or discharged judgment; or (6) "any other reason justifying relief from the operation of the judgment." Fed. R.Civ.P. 60(b). The party seeking relief from judgment bears the burden of proof. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383-84, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992); Mazengo v. Mzengi, 542 F.Supp.2d 96, 100 n. 3 (D.D.C. 2008). Critically, the movant must "demonstrate a meritorious claim or defense." Lepkowski v. United States Dep't of Treasury, 804 F.2d 1310, 1314 (D.C.Cir.1986); accord Norman v. United States, 377 F.Supp.2d 96, 98 (D.D.C.2005) (plaintiff's Rule 60(b) motion denied where "the Court [was] persuaded that reinstatement would ultimately be futile"), aff'd, 467 F.3d 773 (D.C.Cir.2006).

Rule 60(b)(6) permits the amendment of a judgment for "any other reason justifying relief from the operation of the judgment." This catch-all provision gives courts discretion to vacate or modify judgments when it is "appropriate to accomplish justice," Klapprott v. U.S., 335 U.S. 601, 614-15, 69 S.Ct. 384, 93 L.Ed. 266 (1949), but it should be applied only in extraordinary circumstances. Kramer v. Gates, 481 F.3d 788, 791 (D.C.Cir.2007) (citing Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 95 L.Ed. 207 (1950)). "Rule 60(b)(6) `should be only sparingly used' and may not `be employed simply to rescue a litigant from strategic choices that later turn out to be improvident.'" Kramer, 481 F.3d at 792 (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980)). Relief under Rule 60(b)(6) "is not available unless the other clauses, (1) through (5), are inapplicable." Goland v. CIA, 607 F.2d 339, 372-73 (D.C.Cir.1979).

III. ANALYSIS

Mr. Bowdoin's statement that he was "hoodwinked" could be interpreted to mean that he mistakenly released his claims or...