United States v. Bowser
| Decision Date | 03 September 2013 |
| Docket Number | Case No. 1:12-cr-00102-TWP-DML-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JOSHUA BOWSER, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
This matter is before the Court on Defendant Joshua Bowser's ("Mr. Bowser") Petition to Enter Plea of Nolo Contendere to Count One, and to Enter Pleas of Guilty to Counts Two, Five, Eight, Nine, Ten, Eleven, Twelve, Nineteen, and Forty-Seven (Dkt. 2119). Additionally, Mr. Bowser indicates he will waive a jury trial on the remaining Count Sixteen if the pleas are accepted. The Government objects to the proposed nolo contendere plea. At issue is whether the Court will accept Mr. Bowser's Petition to Enter a Plea of Nolo Contendere to Count One. The Court held a hearing and heard argument on Friday, August 30, 2013. At the hearing, Mr. Bowser's counsel indicated that Mr. Bowser adopts and joins in co-defendant Jamie Bolinger's ("Mr. Bolinger") similar motion and argument. For the reasons set forth below, Mr. Bowser's Petition to Enter a Plea of Nolo Contendere to Count One is ACCEPTED.
Mr. Bowser and 50 others are charged in a forty-nine count Second Superseding Indictment with offenses ranging from racketeering acts, drug trafficking, robbery, assault, fraud, extortion and witness tampering, in violation of various federal statutes, including Titles 18, 21, and 26. The case stems from a four year federal investigation into the Outlaws Motorcycle Club ("OMC"). Mr. Bowser is in custody and is set for trial, along with five Co-Defendants, on September 9, 2013. The parties anticipate the jury trial will last from five to eight weeks. Theposture of the case is in flux and it appears that some of the remaining Co-Defendants will enter a change of plea. Mr. Bowser has agreed to enter a plea of guilty to all of the counts charged against him except Count Sixteen and Count One. With respect to Count Sixteen, Conspiracy to Distribute Controlled Substance, Mr. Bowser will waive jury, and with respect to Count One, Racketeer Influenced and Corrupt Organization (RICO), Mr. Bowser has petitioned to enter of plea of nolo contendere.
Federal Rule of Criminal Procedure 11 allows for a defendant to plead either guilty or not guilty. A defendant also has the option of pleading nolo contendere (a "nolo plea"), but only with the consent of the court after due consideration of the views of the parties and the interest of the public in the effective administration of justice. Fed. R. Crim. P. 11(a)(3). A plea of nolo contendere is said to literally mean, "I do not contest it." Lott v. United States, 367 U.S. 421, 426 (1961) (citing Piassick v. United States, 253 F.2d 658, 661 (5th Cir. 1958)). At the same time, however, the defendant admits "every essential element of the offense (that is) well pleaded in the charge." Id. (citing United States v. Lair, 195 F. 47, 52 (8th Cir. 1912)). In other words, a plea of nolo contendere is "tantamount to a regular plea of guilty" for the purposes of the case. McGrath v. United States, 402 F.2d 466, 467 (7th Cir. 1968). While a plea of nolo contendere, for all practical purposes from the standpoint of punishment, is comparable to a plea of guilty, there is, however, a material difference when considering the fact that a nolo contendere plea may not be used against a defendant as an admission in any subsequent civil or criminal proceeding; nor does the plea affect the civil rights or impose any civil disqualification upon the defendant. See, 22 C.J.S. Criminal Law § 425(4).
"And in practice [,] pleas of nolo contendere are rarely accepted without the approval of the Government after compromise negotiations with the Government". See CommonwealthEdison Co. v. Allis-Chalmers Mfg. Co. 323 F.2d 412, 415 (7th Cir. 1963). Indeed, a search by this court reveals that nolo contendere pleas in this district are rare. The Supreme Court has determined that the decision to either accept or reject a defendant's plea of nolo contendere is entirely within the discretion of the court. Santobello v. New York, 404 U.S. 257, 261 (1971); see also, United States v. Bearden, 274 F.3d 1031 (6th Cir. 2001). Rule 11(a)(3) specifically provides that in exercising its discretion "the court must consider the parties' views and the public interest in the effective administration of justice." In United States v. Brighton Bldg. & Maintenance Co., 431 F. Supp. 1118 (N.D. Ill. 1977), the court discusses factors that it takes into account when accepting or rejecting a plea of nolo contendere. In the exercise of its discretion, the court took into account: "(1) any mitigating circumstances, (2) the culpability of the defendant (tendering a nolo plea) relative to codefendants, (3) the deterrent effect of a nolo as compared to a guilty plea, [and] (4) the pragmatic considerations of avoiding an expensive and time-consuming trial." Id. Regardless of the factors considered, "[t]he primary purpose of accepting a plea of nolo is to promote the administration of justice." United States v. Chin Doong Art, 193 F. Supp. 820, 823 (E.D.N.Y. 1961).
The standard the Court must apply in deciding whether to accept nolo contendere is the public interest. Mr. Bowser asserts that he will accept personal responsibility for his criminal actions by pleading guilty to the substantive charges in Counts Two, Five, Eight, Nine, Ten, Eleven, Twelve, Nineteen, and Forty-Seven. However, like his Co-Defendant Mr. Bolinger, he is unwilling to plead guilty to Count One, Racketeering, "under any circumstances", though he acknowledges that a nolo plea authorizes the Court to impose punishment as if he had been convicted of that offense. The Government objects to Mr. Bowser's nolo plea, arguing that such a plea would be contrary to the public interest in the administration of justice.
The Government highlights four arguments against the proposed nolo plea:
First, permitting the nolo contendere plea would allow the defendant to perpetrate the argument that the Outlaws Motorcycle Club ("OMC") does not constitute an organized crime entity and reduce the deterrent effect of the prosecution. Second, permitting the nolo contendere plea would minimize the importance of the defendant's participation in the OMC enterprise to his commission of the individual racketeering acts. Third, permitting the defendant to plead nolo contendere would result in a disparate treatment of this defendant with other defendants in the case. Fourth, permitting the defendant to plead nolo contendere would allow him to maintain his standing in the OMC both in prison and upon his release from prison.
Dkt. 2133 at 3. These concerns are buttressed by a letter written by Co-Defendant Mr. Bolinger to a fellow OMC member that the Government attached as Exhibit A (Dkt. 2133-1), which by inference can be viewed as evidence of Mr. Bowser's motivations. In essence, the letter confirms that admitting the OMC is a criminal organization is strictly prohibited by the OMC code. Thus accepting a nolo plea allows Mr. Bowser to maintain his membership in the OMC and boosts Mr. Bowser and the OMC in contravention of the public interest. The letter speaks for itself, and is a strong indication that although Mr. Bowser may be willing to plead guilty to the substantive counts, he is dedicated to preserving the OMC, including any criminal interests the club promotes.
The Court agrees that the Government has identified legitimate interests that weigh heavily against the public interest in accepting Mr. Bowser's nolo plea. The nolo plea has a lessened deterrent effect as it allows Mr. Bowser to maintain that his substantive crimes were not in furtherance of the OMC. Further, it creates a disparity among Co-Defendants, many of whom have pleaded guilty to the RICO charge. See Chin Doong Art, 193 F. Supp. at 823 (...
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