RESPONSE in Opposition by USA as to Emmet Bowens re 40 Renewed MOTION to Modify… — United States v. Bowens (Dkt. 43)

Record facts

U.S. District Court for the Middle District of Florida · No. 6:21-cr-00141-RBD-NWH · Doc. 43 · 2022-04-25 · Docket on CourtListener

Summary

A response in opposition filed by the United States on April 25, 2022 in United States v. Emmet Bowens, No. 6:21-cr-00141-RBD-NWH, in the U.S. District Court for the Middle District of Florida, as Document 43. It opposes the defendant's renewed motion (Doc. 40) to modify release conditions by removing GPS location monitoring, which the court had declined to remove on December 16, 2021. The background section states that the indictment returned November 10, 2021 charges wire fraud under 18 U.S.C. § 1343 and money laundering under 18 U.S.C. § 1957. The government argues the motion is effectively a motion to reconsider that identifies no new evidence or error under Rule 59, and that it offers no new material information under 18 U.S.C. § 3142(f). Assistant United States Attorney Amanda Daniels signs the eight-page filing.

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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
ORLANDO DIVISION
 
 
UNITED STATES OF AMERICA 
 
   
 
 
 
     
 
 
   
     v. 
 
 
 
 
Criminal No. 6:21-cr-141-RBD-EJK 
 
 
 
 
 
 
   
EMMET BOWENS 
 
 
UNITED STATES’ RESPONSE IN OPPOSITION TO  
DEFENDANT’S MOTION TO MODIFY RELEASE CONDITIONS 
 
 
The United States opposes the defendant’s renewed motion to modify 
conditions of release. Doc. 40. For the forgoing reasons, the United States 
respectfully urges the Court to deny the defendant’s motion.    
BACKGROUND 
 
On November 10, 2021, a federal grand jury returned an indictment 
charging the defendant with wire fraud, in violation of 18 U.S.C. § 1343 
(Counts One and Two) and Money Laundering, in violation on 18 U.S.C. § 
1957 (Count Three through Six). Doc. 1. The defendant was arrested on 
December 2, 2021, Doc. 9, when he re-entered the United States at an airport 
in Atlanta, Georgia after arriving on a flight from international travel. 
 
The defendant was initially brought before a magistrate in the Northern 
District of Georgia, where the Court set conditions of release. Doc. 7. The 
conditions of release include GPS location monitoring, among other 
conditions. Doc. 7-2. At the defendant’s In-District appearance, arraignment 
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and modification hearing on December 16, 2021, the defendant moved to 
modify his conditions of release, Doc. 10, and specifically sought the removal 
of his GPS monitor. The Court denied the defendant’s motion on the same 
date. Id.; Doc. 15.   
 
The defendant filed the instant motion again seeking the removal of 
GPS monitor on April 21, 2022. Doc. 40. In his motion the defendant argues 
that he was under the belief that the GPS monitor would only be required for 
the period between his release from Custody in the Northern District of 
Florida and his arrival in the Middle District of Florida. Doc. 40 at 2-3. The 
defendant also asserts that he finds the GPS monitor physically 
uncomfortable. See Doc. 40 at 3. Finally the defendant argues that his 
compliance with the conditions of release demonstrates that he does not pose 
a risk of flight or a danger to the community. 
 
The Court should deny the defendant’s motion. First, the defendant has 
failed to meet the applicable burden governing motions to reconsider. Second, 
the defendant’s motion fails to meet the burden for modifying his release 
conditions under the applicable statutes. The undersigned has contacted the 
United States Pretrial Services Officer Charles Sweatt, who confirmed that the 
defendant has not had any issues with compliance.  
 
  
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MEMORANDUM OF LAW 
I. 
The Defendant has not met the burden under the applicable rules governing 
motions to reconsider. 
   
As indicated in the title of his motion, the defendant is renewing his 
previously denied motion to modify his release conditions. As such, the 
defendant’s motion should be construed as a motion to reconsider. The 
defendant has not met the burden under the applicable rules governing 
motions to reconsider, namely, the defendant has failed to establish that there 
is any newly discovered evidence or manifest errors of law or fact. As such, 
the Court should deny the defendant’s motion.  
There is no rule under the Federal Rules of Criminal procedure 
governing motions to reconsider. Nonetheless, motions to reconsider have 
been permitted and evaluated by District Courts in this, and other sister 
districts, under the same standards used in civil cases. See United States v. 
Lapin, No. 6:20-cr-89-RBD-LRH, Doc. 129 (M.D.F.L. Jan. 22, 2021); United 
States v. Sencan, No. CRIM. 13-0117-CG, 2013 WL 6237455, at *3 (S.D. Ala. 
Dec. 3, 2013). In these situations, Federal Rule of Civil Procedure 59 governs. 
Under that rule, the grounds for granting a motion to reconsider include newly 
discovered evidence or manifest errors of law or fact. Jones v. Thomas, 605 F. 
App'x 813, 814 (11th Cir. 2015) (citing Arthur v. King, 500 F.3d 1335, 1343 
(11th Cir. 2007)). The Eleventh Circuit has repeatedly held that motions to 
reconsider cannot be used to, “relitigate old matters, raise argument or present 
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evidence that could have been raised prior to the entry of judgment.” Id. at 
814; see also United States v. Gossett, 671 F. App'x 748, 749 (11th Cir. 2016) 
(holding that the denial of a motion to reconsider was proper, in part, because 
the defendant’s motion did not raise any arguments that were unavailable at 
the time of his initial motion). 
The instant motion asks the Court to reconsider the same issue that it 
previously ruled on, and so should be construed as a motion to reconsider. As 
such, Federal Rule of Civil Procedure 59 governs. Here, the defendant has 
failed to meet the burden for succeeding on a motion to reconsider under Rule 
59. Specifically, the defendant does not allege any new evidence, nor claim 
any error of law or fact in his motion. Rather, the instant motion is an attempt 
to impermissibly relitigate old matters and raise an argument that could have 
been raised prior to the entry of the Court’s first order at Doc. 15.  
For these reasons, the Court should deny the instant motion.  
II. 
The defendant’s motion does not meet the burden for modifying his release 
conditions under the applicable statutes.  
 
The Court should deny the defendant’s motion because none of the 
information alleged in the defendant’s motion is new nor material to his 
conditions regarding flight or dangerousness.  
 
Under 18 U.S.C. § 3142(c)(3), “The judicial officer may at any time 
amend the order to impose additional or different conditions of release.” This 
inquiry, however, is guided by 18 U.S.C. § 3142(f). Under 18 U.S.C. § 3142(f) 
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the defendant must establish that information exists that was not known to 
him at the time of the initial detention hearing, and that this information has a 
material bearing on the issue of whether there are conditions of release that 
will reasonably assure his appearance as required and the safety of any other 
person and the community.  
 
The defendant has not met his burden under the applicable statutes and 
his motion should be denied. The defendant has failed to establish both that 
this information is new and that it has a material bearing on his release 
conditions regarding flight or dangerousness. The “new information” relied 
upon by the defendant is threefold, first the defendant argues that he believed 
the GPS would be removed when he arrived in the Middle District of Florida, 
second the defendant cites the physical discomfort caused by the monitor, and 
third, the defendant highlights his performance under the conditions imposed 
by the Court.  
None of the arguments put forth by the defendant qualify as “new 
information.” Neither, the defendant’s mistaken belief that his monitor would 
be removed upon arrival in the Middle District of Florida nor the the physical 
experience of wearing a monitor constitute new information. Additionally, the 
defendant’s compliance while on supervised release also does not qualify as 
new information. Release conditions are imposed with the presumption that 
the defendant will follow them. Under the statute, the conditions set by the 
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Court are those determined to be necessary to assure the defendant’s 
appearance. As such, the compliance with those conditions is not “new 
information;” rather it is what the Court previously determined was necessary 
to bring about the desired result.  
Even if the Court were to find that any of the information in the 
defendant’s motion is “new information,” the defendant has not established 
that this information has a material bearing on his release conditions regarding 
flight or dangerousness. It is unclear, how the defendant’s mistaken belief, the 
physical experience of wearing the monitor, or complying with the conditions 
of his release—as is anticipated by the Court when it sets release conditions—
has any bearing on whether the defendant is poses a risk of flight or a danger 
to the community. If anything, the defendant’s compliance indicates the Court 
correctly tailored the conditions of release to meet the purposes of the 18 
U.S.C. § 3142.   
For these reasons, the United States respectfully urges the court to deny 
the defendant’s motion.  
 
 
 
 
 
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CONCLUSION 
For the foregoing reasons, this Court should deny defendant’s renewed 
motion to modify the conditions of his release. 
 
Respectfully submitted, 
 
ROGER B. HANDBERG 
United States Attorney 
 
 
By: 
/s/ Amanda Daniels___ 
Amanda Daniels 
Assistant United States Attorney 
FL Bar No. 111444 
400 W. Washington Street, Suite 3100 
Orlando, Florida 32801 
Telephone: (407) 648-7500 
Facsimile: 
(407) 648-7643 
E-mail:   amanda.daniels@usdoj.gov 
 
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U.S. v. Emmet Bowens  
 
Case No. 6:21-cr-414-RBD-EJK 
 
CERTIFICATE OF SERVICE 
 
I hereby certify that on April 25, 2022, I electronically filed the 
foregoing with the Clerk of the Court by using the CM/ECF system which 
will send a notice of electronic filing to the following: 
Andrew C. Searle, Esq.  
 
 
By: 
/s/ Amanda Daniels___ 
Amanda Daniels 
Assistant United States Attorney 
FL Bar No. 111444 
400 W. Washington Street, Suite 3100 
Orlando, Florida 32801 
Telephone: (407) 648-7500 
Facsimile: 
(407) 648-7643 
E-mail:    amanda.daniels@usdoj.gov 
 
 
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