Court filing

Renewed MOTION to Modify Conditions of Release by Emmet Bowens. (Searle, Andrew)… — United States v. Bowens (Dkt. 40)

Record facts

Court	U.S. District Court for the Middle District of Florida
Filed	2022-04-21

U.S. District Court for the Middle District of Florida · No. 6:21-cr-00141-RBD-EJK · Doc. 40 · 2022-04-21 · Docket on CourtListener

Summary

Defendant Emmet Bowens' Renewed Motion to Modify Conditions of Release, filed April 21, 2022 in United States v. Emmet Bowens, No. 6:21-cr-00141-RBD-EJK, in the U.S. District Court for the Middle District of Florida (Doc. 40). The motion asks the Court to remove the GPS location monitoring condition imposed at his Rule 5(c)(3) initial appearance. It recounts a November 10, 2021 indictment charging two counts of wire fraud under 18 U.S.C. § 1343 and four counts of money laundering under 18 U.S.C. § 1957, his December 2, 2021 arrest, and the denial of an earlier ore tenus motion. Relying on the Bail Reform Act, 18 U.S.C. § 3142(c)(1)(B) and the presumption of innocence, it argues that he poses no flight risk or danger and has complied with every condition. It states that the government opposes the motion.

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES OF AMERICA,
)

)

Plaintiff,

)

)
v.

)
Case No. 6:21−cr−00141−RBD−EJK

)
EMMET BOWENS,

)

Defendant.

)

DEFENDANT EMMET BOWENS’
RENEWED MOTION TO MODIFY CONDITIONS OF RELEASE

The Defendant, Emmet Bowens (“Mr. Bowens”), by and through the
undersigned counsel, hereby renews his motion for this Honorable Court to
modify his conditions of pretrial release. Specifically, Mr. Bowens requests the
removal of the Global Positioning Satellite (“GPS”) monitoring device, which is
currently attached to his ankle, 24 hours a day, seven days a week, as part of the
conditions of release. In support thereof, Mr. Bowens states as follows:
STATEMENT OF FACTS

Relevant Procedural History
1.
On November 10, 2021, a federal grand jury in the Middle District of
Florida returned an indictment charging Mr. Bowens with two counts of wire
fraud, in violation of 18 U.S.C. § 1343 (Counts One and Two), and four counts of
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money laundering, in violation of 18 U.S.C. § 1957 (Counts Three through Six).
Doc. 1. According to the government’s discovery production, in October of 2020,
Mr. Bowens was made aware of the criminal investigation underlying his
indictment, when the Federal Bureau of Investigation (“FBI”) contacted him.
2.
On December 2, 2021, at the Hartsfield-Jackson International Airport,
in Atlanta, Georgia, Mr. Bowens was detained and eventually arrested in
connection with a warrant issued in this case. Docs. 7, 9. Notably, Mr. Bowens
was returning to the United States from an international trip he had recently taken.
Mr. Bowens was fully cooperative during his arrest process. In addition, Mr.
Bowens’ passport was seized by the arresting agents and eventually surrendered
to U.S. Pretrial Services (“Pretrial Services”). Doc. 7 at 7.
3.
On the same date of his arrest, December 2, 2021, Mr. Bowens had a
Rule 5(c)(3) initial appearance before a U.S. Magistrate Judge in the Northern
District of Georgia. Doc. 7. At this hearing, the Magistrate Judge set conditions
of release for Mr. Bowens, including, inter alia, the requirement that he appear in
all proceedings in this case as directed, that he be supervised by Pretrial Services,
and that he participate in GPS location monitoring. Id. at 7. Mr. Bowens was
under the impression that the GPS location monitoring device would only be
required for the period between his release from custody in the Northern District
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of Georgia and his arrival in the Middle District of Florida, where his pretrial
release conditions could be revisited.
4.
On December 16, 2021, Mr. Bowens appeared in the Middle District
of Florida, where this Court held an in-district initial appearance in Mr. Bowens’
case. Doc. 10. At this hearing, Mr. Bowens made an ore tenus motion to modify
his conditions of release. Docs. 10, 14. The undersigned was not Mr. Bowens’
counsel of record at the in-district initial appearance. However, it is the
undersigned’s belief that Mr. Bowens ore tenus motion to modify conditions of
release included a request for the removal of the GPS device on his ankle. This is
consistent with Mr. Bowens’ belief that the GPS monitoring device was no longer
necessary, as he had voluntarily reported to the Middle District of Florida, where
his case was pending, and where he lives with his family. The Court ultimately
denied Mr. Bowens’ ore tenus motion to modify the conditions of his release. Doc.
15.
5.
Since his arrest in December of last year, Mr. Bowens has fully
complied with all the conditions of his release, including the GPS location
monitoring. However, Mr. Bowens maintains that the GPS device attached to his
ankle is unnecessary as he is neither a flight risk, nor a danger to the community.
Moreover, the device has caused him swelling, bruising, pain and discomfort.
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6.
The undersigned has conferred with Pretrial Services Officer Charles
Sweatt who has supervised Mr. Bowens since his initial appearance in this case.
Officer Sweatt confirmed that Mr. Bowens has fully complied with all the
conditions of his release, and has had no issues whatsoever during his pretrial
release in this case. The undersigned has also conferred with Assistant United
States Attorney Amanda Daniels who has informed the undersigned that the
government opposes the instant motion.
MEMORANDUM OF LAW
Once the Court orders a defendant to be released on conditions pursuant to
18 U.S.C. § 3142(c), “[t]he judicial officer may at any time amend the order to
impose additional or different conditions of release.” See 18 U.S.C. § 3142(c)(3).
Further, “[i]f a person is ordered released by a magistrate judge, or by a person
other than a judge of a court having original jurisdiction over the offense . . . .” the
court with original jurisdiction over the charged offense has authority to amend
the defendant’s conditions of pretrial release. 18 U.S.C. § 3145(a)(2).
The ability of a defendant to request an amendment to his pretrial release
conditions is consistent with both federal statutes and the United States
Constitution. The Bail Reform Act requires a court to release a defendant on
personal recognizance or upon the execution of an unsecured appearance bond
“unless the judicial officer determines that such release will not reasonably assure
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the appearance of the person as required or will endanger the safety of any other
person or the community.”1 18 U.S.C. § 3142(b). Even if the Court makes such a
determination regarding risk of flight, the statute requires the court to release the
defendant on the “least restrictive” conditions necessary to assure the appearance
of the individual. See 18 U.S.C. § 3142(c)(1)(B).
In the constitutional context, the Eighth Amendment prohibits a defendant
from being detained based on “[e]xcessive bail.” Finally, Mr. Bowens’ motion
raises a proposition that is “so rooted in the traditions and conscience of our people
as to be ranked as fundamental.’” See United States v. Ailemen, 165 F.R.D. 571, 578
(N.D. Cal. 1996). “That concept, which has served as the cornerstone of our system
of criminal justice, is that an accused must be presumed innocent until proven
guilty.” Id. “The principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its enforcement lies
at the foundation of the administration of our criminal law.” Coffin v. United States,
156 U.S. 432, 453 (1895). “Unless the right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of struggle, would lose its
meaning.” Stack v. Boyle, 342 U.S. 1, 4 (1951) (Vinson, Chief Justice). “The
presumption of innocence, although not articulated in the Constitution, is a basic
component of a fair trial under our system of criminal justice.” Estelle v. Williams,

1
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425 U.S. 501, 503 (1975). Mr. Bowens’ request for a modification of his conditions
of pretrial release is consistent with the foregoing statutory and constitutional
principles.
As noted above, the Bail Reform Act mandates that Mr. Bowens should be
“subject to the least restrictive” condition or combination of conditions that will
reasonably assure his appearance as required and the safety of any other person
and the community. See 18 U.S.C. § 3142(c)(1)(B). Here, the “least restrictive”
conditions for Mr. Bowens should not include the onerous condition of having to
wear a GPS monitoring device on his ankle 24 hours a day, seven days a week.
Mr. Bowens is charged with a non-violent offense, and his background reflects that
he is a family man with longstanding ties to the Middle District of Florida.
Specifically, Mr. Bowens has resided in the Middle District of Florida for 16 years.
He currently lives with his wife and daughter at a residence that he owns in
Apopka, Florida. Further still, Mr. Bowens has demonstrated to the Court during
these past four months that he will comply with whatever conditions of release
the Court imposes, including, amongst others, regularly reporting to Pretrial
Services, not committing new crimes, and refraining from excessive alcohol
consumption or illegal drug use. As noted above, Mr. Bowens knew about the
government’s investigation a full year in advance of his indictment and arrest in
this case. He could have easily remained outside of the United States, instead of
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returning in December 2021. The fact is that Mr. Bowens’ return to the United
States and his full compliance with his pretrial release conditions since his arrest
in this case, indicates that he poses no flight risk whatsoever in the instant case.
Lastly, there is no indication whatsoever that Mr. Bowens poses a danger to the
community. In sum, consistent with the Bail Reform Act and the authority cited
above, this Court should modify Mr. Bowens’ conditions of release and remove
the GPS location monitoring requirement.
CONCLUSION
WHEREFORE, the Defendant, Emmet Bowens, moves this Honorable Court
to amend the conditions of his pretrial release and remove the condition of GPS
location monitoring.
Respectfully submitted on this 21st day of April, 2022.

s/Andrew C. Searle

ANDREW C. SEARLE, ESQ.

Florida Bar No. 0116461
SEARLE LAW P.A.
200 East Robinson Street, Suite 1150
Orlando, Florida 32801
Telephone: 407-203-3715
Email: andrew@searle-law.com

Attorney for Defendant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY on April 21, 2022, I filed a copy of the foregoing with the
Clerk of the Court via the CM/ECF system. I further certify that all parties to this case
are equipped to receive service of documents via that system.
s/Andrew C. Searle