Defendant Emmet Bowens' Motion to Dismiss Count Two of the Indictment Due to Improper Venue — United States v. Emmet Bowens (Dkt. 46)

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Document 46, filed May 5, 2022 in Case No. 6:21-cr-00141-RBD-EJK in the U.S. District Court for the Middle District of Florida, Orlando Division, is Defendant Emmet Bowens' Motion to Dismiss Count Two of the Indictment Due to Improper Venue under Fed. R. Crim. P. 12(b)(3)(A)(i), signed by counsel Andrew C. Searle. It says the Indictment alleges Count Two was a wire transfer of $739,582.50 from the Lenders' East West Bank account processed using a server located outside of Florida. The motion argues the government cannot prove by a preponderance of the evidence that the wire moved through the Middle District of Florida. It relies on emails from East West Bank and Trustco Bank to an FBI agent, attached as Exhibits A and B, and asks the Court to dismiss Count Two.

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“Defendant Emmet Bowens' Motion to Dismiss Count Two of the Indictment Due to Improper Venue — United States v. Emmet Bowens (Dkt. 46).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-flmd-396523-46-0-bf87985333/, SHA-256 aa836046c289f6cacc9dc34b05d5e1671e00b7a088dc8cc46ef4d92026cc3253.

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Case 6:21-cr-00141-RBD-NWH Document 46 Filed 05/05/22 Page 1 of 6 PageID 137

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’ MOTION TO DISMISS
COUNT TWO OF THE INDICTMENT DUE TO IMPROPER VENUE

The Defendant, Emmet Bowens (“Mr. Bowens”), by and through the

undersigned counsel, hereby moves to dismiss Count Two of the Indictment (Doc.

1), pursuant to Fed. R. Crim. P. 12(b)(3)(A)(i), on the grounds that venue for this

Count is improper in the Middle District of Florida. 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

money laundering, in violation of 18 U.S.C. § 1957 (Counts Three through Six).
Case 6:21-cr-00141-RBD-NWH Document 46 Filed 05/05/22 Page 2 of 6 PageID 138

Doc. 1. The Indictment blanketly alleged that the wire fraud counts (Counts One

and Two) occurred “in the Middle District of Florida, and elsewhere.” Id. at 4.

However, with respect to Count Two, the Indictment specifically alleged that on

or about May 20, 2020, Mr. Bowens committed wire fraud by transmitting or

causing to be transmitted a “[w]ire transfer in the amount of $739,582.50 from the

Lenders’ East West Bank account into Emmet Bowens’ Trust account ending in

4982, processed using a server located outside of Florida.” Id. at 7 (emphasis

added).

2. The deadline for the filing of pretrial motions in this case is May 5,

2022. Doc. 37.

MEMORANDUM OF LAW

The Sixth Amendment of the United States Constitution and Rule 18 of the

Federal Rules of Criminal Procedure guarantee the right of a defendant to be tried

in the district in which the offense was committed. United States v. DiJames, 731

F.2d 758, 761 (11th Cir. 1984) (citations omitted). A defendant may waive such

right, however, by failing to raise a venue objection prior to trial. United States v.

Dabbs, 134 F.3d 1071, 1078 (11th Cir. 1998); see also United States v. Roberts, 308 F.3d

1147, 1151-52 (11th Cir. 2002) (concluding that defendant waived his venue

challenge by not raising it until the close of the prosecution's case because

defendant was aware of the basis for his objection before the close of evidence);

2
Case 6:21-cr-00141-RBD-NWH Document 46 Filed 05/05/22 Page 3 of 6 PageID 139

United States v. White, 654 F. App'x 956, 966 (11th Cir. 2016) (“Defendant did not

raise the issue of venue until his motion for judgment of acquittal at the close of

the Government's case . . . [and] therefore waived this challenge by not timely

raising it.”).

The government is required to prove venue by a preponderance of the

evidence. See United States v. Stickle, 454 F.3d 1265, 1271 (11th Cir. 2006) (venue is

“non-essential element” of a crime); United States v. Schlei, 122 F.3d 944, 974 (11th

Cir. 1997) (quoting United States v. Barnes, 681 F.2d 717, 722 (quotation omitted),

amended by, 694 F.2d 233 (11th Cir. 1982)) (“[T]erritorial jurisdiction and venue

are essential elements of any offense in the sense that the burden of proof is on the

prosecution to prove their existence. . . . However, venue need only be proved by

a preponderance of the evidence as opposed to beyond a reasonable doubt.”). The

Eleventh Circuit has explained that “the preponderance standard is not toothless

[and requires] reliable and specific evidence.” See United States v. Martinez, 584

F.3d 1022, 1027 (11th Cir. 2009) (internal citations omitted).

“[W]ire fraud [is] a ‘continuing offense,’ as defined in 18 U.S.C. § 3237(a),

[and is] properly tried in any district where a . . . wire communication was

transmitted in furtherance of [the] fraud scheme.” United States v. Ebersole, 411 F.3d

517, 527 (4th Cir. 2005) (quoting United States v. Kim, 246 F.3d 186, 191 (2d Cir.

2001)). Here, the Indictment alleges with respect to Count Two that the charged

3
Case 6:21-cr-00141-RBD-NWH Document 46 Filed 05/05/22 Page 4 of 6 PageID 140

wire transmission “was processed using a server located outside of Florida.” See

Doc. 1 at 7. Thus, even when construing the Indictment in the light most favorable

to the government, it appears that no part of the wire communication charged in

Count Two moved through the State of Florida, much less the Middle District of

Florida.

Further still, the government will not be able to prove by a preponderance

of the evidence that any part of the wire communication charged in Count Two

was transmitted to, from, or through the Middle District of Florida. As noted

above, the wire communication alleged in Count Two is a wire transfer from East

West Bank to Trustco Bank. Id. Attached hereto as Exhibits A and B, respectively,

are emails from representatives of East West Bank and Trustco Bank to a Federal

Bureau of Investigation (“FBI”) agent. These emails were provided to Mr. Bowens

as part of the government’s discovery production in this case. In these emails, the

representatives of East West Bank and Trustco Bank informed the FBI that the

bank servers through which the wire communication alleged in Count Two was

transmitted, were all located outside the State of Florida. See Exhibit A and B.

Thus, the government will not be able to establish by a preponderance that the

wire communication alleged in Count Two of the Indictment was transmitted

through the Middle District of Florida. Accordingly, venue for Count Two of the

Indictment is improper in this district.

4
Case 6:21-cr-00141-RBD-NWH Document 46 Filed 05/05/22 Page 5 of 6 PageID 141

In sum, the government has failed to sufficiently allege that venue for Count

Two of the Indictment is proper in this district. Moreover, the government will

not be able to establish by a preponderance of the evidence that venue for Count

Two lies within this district. Therefore, the Court should dismiss Count Two of

the Indictment pursuant to Rule 12(b)(3)(A)(i).

CERTIFICATION OF CONFERRING WITH OPPOSING COUNSEL

Pursuant to the Court’s Criminal Scheduling Order (Doc. 16), the

undersigned certifies: (1) that the undersigned counsel conferred with opposing

counsel; (2) that counsel have been unable to resolve the instant motion by

agreement; and (3) that the motion concerns matters not covered by the scheduling

order.

CONCLUSION

WHEREFORE, the Defendant, Emmet Bowens, moves this Honorable Court

to enter an Order dismissing Count Two of the Indictment on the grounds that

venue is improper in the Middle District of Florida.

Respectfully submitted on this 5th day of May, 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

5
Case 6:21-cr-00141-RBD-NWH Document 46 Filed 05/05/22 Page 6 of 6 PageID 142

CERTIFICATE OF SERVICE

I HEREBY CERTIFY on May 5, 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.

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