United States' Response in Opposition to Defendant's Motion to Dismiss Count Two Due to Improper Venue — United States v. Emmet Bowens (Dkt. 60)

Summary

Document 60, filed June 2, 2022 in Case No. 6:21-cr-141-RBD-EJK in the U.S. District Court for the Middle District of Florida, Orlando Division, is the United States' response in opposition to Emmet Bowens's motion to dismiss Count Two of the Indictment for improper venue (Doc. 46). The defendant argues venue is improper because the wire transmissions in Count Two were processed on servers outside the District. The government answers that wire fraud is a continuing offense under 18 U.S.C. § 3237(a) and that the scheme began and continued in the Middle District of Florida. It states that PPP funds were deposited into the defendant's bank account on May 20, 2020 and that other debits to that account were made in the District that day. It asks the Court to deny the motion.

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“United States' Response in Opposition to Defendant's Motion to Dismiss Count Two Due to Improper Venue — United States v. Emmet Bowens (Dkt. 60).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-flmd-396523-60-0-cec0e46afe/, SHA-256 91860b8acbad69d29177379a8cf7f6f51a1328512904ce756441d8d84122eb47.

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Case 6:21-cr-00141-RBD-NWH Document 60 Filed 06/02/22 Page 1 of 6 PageID 186

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES OF AMERICA

v. Case No. 6:21-cr-141-RBD-EJK

EMMET BOWENS

UNITED STATES’ RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS COUNT TWO OF THE
INDICTMENT DUE TO IMPROPER VENUE

The United States of America hereby files its response in opposition to

the defendant’s motion to dismiss Count Two of the Indictment due to

improper venue, Doc. 46. In his motion the defendant argues that venue is

improper in this District because the wire transmissions in Count Two of the

Indictment, Doc. 1, were processed on servers located outside of the District.

Venue, however, is proper in the Middle District of Florida because the acts

that caused the wire to be transferred took place within the Middle District of

Florida.

BACKGROUND

In March 2020, the Coronavirus Aid, Relief, and Economic Security

Act, or the “CARES Act,” was enacted to provide immediate assistance to

individuals, families, and organizations affected by the COVID-19 emergency.

Among its various provisions, the CARES Act authorized the Small Business

Administration (SBA) to guarantee loans under the Paycheck Protection
Case 6:21-cr-00141-RBD-NWH Document 60 Filed 06/02/22 Page 2 of 6 PageID 187

Program (“PPP”), and the full principal amount of the loans could qualify for

forgiveness.

Borrowers were required to use PPP loan proceeds only for enumerated

purposes, including payroll costs, rent and utilities, and mortgage interest

payments. Knowing misuse of PPP funds subjects borrowers to additional

liability, such as charges for fraud.

The evidence indicates that the defendant submitted a fraudulent PPP

loan application on or about May 5, 2020, from his residential address in

Apopka, FL, within the Middle District of Florida. The PPP funds were

deposited into the defendant’s Trustco bank account ending in 4982 on May

20, 2020. The bank records for this account demonstrate that other debits were

made to this account in the Middle District of Florida on that same date,

indicating that the defendant was located in the Middle of District of Florida

when his account received the fraudulently obtained PPP loan funds. These

records were previously made available to the defendant at bates nos. 00703-

00757.

Thereafter the evidence indicates that the defendant initiated online

transfers of the fraud proceeds while located in the Middle District of Florida.

The evidence also indicates that the defendant spent some of fraudulently

obtained funds in the Middle District of Florida and that none of the funds

were utilized for any of the authorized expenses under the PPP.

2
Case 6:21-cr-00141-RBD-NWH Document 60 Filed 06/02/22 Page 3 of 6 PageID 188

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 language for Counts One and

Two of the Indictment read, in relevant part,

…for the purpose of executing the aforesaid scheme and artifice to
defraud and for obtaining money and property by means of materially
false and fraudulent pretenses, representations and promises, did
knowingly, and with intent to defraud, transmit and cause to be
transmitted by means of wire communication in interstate and foreign
commerce, the following writings, signs, signals, pictures, and sounds…

(emphasis added) Doc. 1. The two counts listed beneath this language

comprise the charged wire transmissions and include the transmission of the

defendant’s fraudulent PPP application (Count 1) and the wire transfer of the

PPP loan funds caused by the defendant’s submission of the fraudulent PPP

loan application in Count One (Count Two).

On May 5, 2022 the defendant filed the instant motion arguing that

Count Two of the indictment should be dismissed due to improper venue.

Doc. 46. The United States urges the Court to deny this motion because the

Middle District of Florida is a proper venue for Count Two of the Indictment.

MEMORANDUM OF LAW

The Middle District of Florida is the proper venue for Count Two of the

Indictment because wire fraud is a “continuing offense” and the fraud scheme

that caused the wire transmission in Count Two began and continued within

3
Case 6:21-cr-00141-RBD-NWH Document 60 Filed 06/02/22 Page 4 of 6 PageID 189

the Middle District of Florida.

Defendants have a right to be tried in the State and District in which their

crime was committed. Fed. R. Crim. Pro. 18; United States v. White, 590 F.3d

1210, 1213 (11th Cir. 2009). The applicable standard for a challenge to venue

is whether, viewing the evidence in the light most favorable to the

Government, the Government proved by a preponderance of the evidence that

the crimes occurred in the district in the which the defendant is prosecuted.

United States v. Stickle, 454 F.3d 1265, 1272 (11th Cir. 2006).

Circuit Courts in other districts have held in persuasive case law that wire

fraud in a continuing offense under 18 U.S.C. §3237(a). United States v.

Ebersole, 411 F.3d 517, 527 (4th Cir. 2005); United States v. Kim, 246 F.3d 186,

192 (2d Cir. 2001). As such, venue is proper where the offense was begun,

continued, or completed. 18 U.S.C. § 3237.

Here, the Middle District of Florida is the proper venue for Count Two

of the Indictment because the fraud scheme was both begun and continued

within this District. As stated, the evidence here shows that, on May 5, 2022,

the defendant submitted his fraudulent PPP loan application from his

residential address in Apopka, FL, which is within the Middle District of

Florida. This conduct makes up the basis of Count One of the Indictment. In

so doing, the defendant caused the wire transmission detailed in Count Two of

the Indictment on May 20, 2020. Thereafter, the defendant used the fraud

4
Case 6:21-cr-00141-RBD-NWH Document 60 Filed 06/02/22 Page 5 of 6 PageID 190

proceeds for improper and unauthorized expenditures under the PPP within

the Middle District of Florida. As such, the Middle District of Florida is a

proper venue for Count Two of the Indictment because wire fraud is a

continuing offense for the purposes of venue and the offense was both begun

and continued in the Middle District of Florida.

CONCLUSION

For the foregoing reasons, this Court should deny defendant’s motion

to dismiss Count Two of the Indictment due to improper venue, Doc. 46.

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

5
Case 6:21-cr-00141-RBD-NWH Document 60 Filed 06/02/22 Page 6 of 6 PageID 191

U.S. v. Emmet Bowens Case No. 6:21-cr-141-RBD-EJK

CERTIFICATE OF SERVICE

I hereby certify that on May 31, 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.

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