Defendant Emmet Bowens' Unopposed Motion to Continue Motions Hearing Set for July 26, 2022 — United States v. Emmet Bowens (Dkt. 72)

Summary

Document 72, filed July 6, 2022 in Case 6:21-cr-00141-RBD-NWH in the U.S. District Court for the Middle District of Florida, Orlando Division, is Emmet Bowens's unopposed motion to continue the motions hearing set for July 26, 2022 at 10:00 a.m. (Doc. 69). It lists the case history, including the November 10, 2021 indictment, two earlier continuances, and the competency hearing set for July 13, 2022 (Doc. 71). Counsel says the parties do not contest Dr. Danziger's findings and anticipate that the Court will find Mr. Bowens incompetent and commit him under 18 U.S.C. § 4241(d). He asks that the suppression hearing be postponed until competency is restored, arguing that Mr. Bowens's right to be present and to effective counsel requires it, and citing Dusky v. United States and the Speedy Trial Act exclusion at 18 U.S.C. § 3161(h)(1)(A).

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“Defendant Emmet Bowens' Unopposed Motion to Continue Motions Hearing Set for July 26, 2022 — United States v. Emmet Bowens (Dkt. 72).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-flmd-396523-72-0-bc09835488/, SHA-256 54f0998b8833adb5678bc4945dd093c255e488258a4e1e1f2de7fc0364c4dc4a.

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Case 6:21-cr-00141-RBD-NWH Document 72 Filed 07/06/22 Page 1 of 10 PageID 223

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No. 6:21−cr−141−RBD−EJK
)
EMMET BOWENS, )
)
Defendant. )
)

DEFENDANT EMMET BOWENS’ UNOPPOSED MOTION TO
CONTINUE MOTIONS HEARING SET FOR JULY 26, 2022

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

undersigned counsel, hereby files this motion to continue the motions hearing

currently scheduled in this case for July 26, 2022, at 10:00 a.m. (Doc. 69). 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).

Doc. 1.
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2. On December 2, 2021, Mr. Bowens had an initial appearance before a

U.S. Magistrate Judge, following his arrest in this case. Doc. 7. At this hearing, the

Magistrate Judge set conditions of release for Mr. Bowens. Id. at 7.

3. On January 13, 2022, at the first status conference, the Court granted

Mr. Bowens’ ore tenus motion to continue the trial in this matter, and for an

extension of the pretrial motions deadline. Docs. 26, 27, 28. Mr. Bowens also

waived his speedy trial rights through April 30, 2022. Doc. 29.

4. On February 22, 2022, the Court granted a motion to withdraw filed

by Mr. Bowens’ original counsel, and appointed the undersigned counsel to serve

as Criminal Justice Act (“CJA”) counsel for Mr. Bowens. Docs. 32, 34, 35.

5. On March 10, 2022, at a status conference, the Court granted Mr.

Bowens’ second ore tenus motion to continue trial and for another extension of the

pretrial motions deadline. Doc. 37, 38, 39. Mr. Bowens also waived his speedy

trial rights through June 30, 2022. Doc. 36.

6. In compliance with the Court’s new pretrial motions deadline, Mr.

Bowens filed three pretrial motions on May 5, 2022. See Docs. 44, 45, 46.

7. On May 6, 2022, Mr. Bowens filed an Unopposed Motion for a

Hearing and Out-Patient Examination to Determine Mental Competency (“the

competency motion”). Doc. 47.

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8. On May 16, 2022, the Court granted the competency motion and

appointed Jeffrey A. Danziger, M.D. (“Dr. Danziger”) to perform a competency

evaluation of Mr. Bowens. Docs. 52, 55, 57.

9. On June 27, 2022, the undersigned timely submitted to the Court,

under seal, Dr. Danziger’s report concerning the competency evaluation of Mr.

Bowens. Docs. 66, 68, 70.

10. On July 1, 2022, the parties filed their respective Notices Regarding

Competency of Defendant. Docs. 68, 70.

11. This Court has scheduled a competency hearing for July 13, 2022, at

9:30 a.m. Doc. 71.

12. The Court has also scheduled a hearing on Mr. Bowens’ pretrial

motions for July 26, 2022, at 10:00 a.m. (“the motions hearing”). Doc. 69.

13. As stated in their respective notices, the parties do not contest Dr.

Danziger’s findings regarding Mr. Bowens’ mental competency. Docs. 68, 70. In

light of Dr. Danziger’s findings, the parties anticipate that at the upcoming

competency hearing, this Court will find by a preponderance of the evidence “that

the defendant is presently suffering from a mental disease or defect rendering him

mentally incompetent to the extent that he is unable to understand the nature and

consequences of the proceedings against him or to assist properly in his defense.”

See Docs. 68, 70; 18 U.S.C. § 4241(d). Further still, it appears that the statutory

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Case 6:21-cr-00141-RBD-NWH Document 72 Filed 07/06/22 Page 4 of 10 PageID 226

language found in § 4241(d) as well as Eleventh Circuit precedent will compel this

Court to commit Mr. Bowens to the custody of the Attorney General for restorative

competency treatment. See 18 U.S.C. § 4241(d); United States v. Donofrio, 896 F.2d

1301, 1303 (11th Cir. 1990); United States v. Cobble, 724 F. App’x 753, 754 (11th Cir.

2018) (per curiam).

14. Based on the Court’s anticipated competency findings with respect to

Mr. Bowens, the undersigned requests that the upcoming motions hearing be

postponed until Mr. Bowens’ competency is restored.

MEMORANDUM OF LAW AND
GROUNDS FOR REQUESTED CONTINUANCE

Pursuant to the Speedy Trial Act, any period of delay resulting from “any

proceeding, including any examinations, to determine the mental competency or

physical capacity of the defendant,” is excluded from “the time within which the

trial of any such offense must commence.” 18 U.S.C. § 3161 (h)(1)(A).

“The standard for competency to stand trial is whether the Defendant has

sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding—and whether he has a rational as well as factual

understanding of the proceedings against him.” United States v. Hogan, 986 F. 2d

1364, 1371 (11th Cir. 1993) (emphasis added); see also Dusky v. United States, 362

U.S. 402 (1960) (hereinafter “the Dusky standard”). Based on the notices filed by

the parties as well as Dr. Danziger’s report, the parties agree that Mr. Bowens is

4
Case 6:21-cr-00141-RBD-NWH Document 72 Filed 07/06/22 Page 5 of 10 PageID 227

not competent to proceed because “he is unable to understand the nature and

consequences of the proceedings against him or to assist properly in his defense.”

See Docs. 68, 70; 18 U.S.C. § 4241(d).

A defendant has a right to be present at any critical stage of the criminal

proceeding, “if his presence would contribute to the fairness of the procedure.”

Kentucky v. Stincer, 482 U.S. 730, 745 (1987). Further, “[i]t is well settled that the

right to the effective assistance of counsel applies to certain steps before trial.”

Missouri v. Frye, 566 U.S. 134, 140 (2012). The “Sixth Amendment guarantees a

defendant the right to have counsel present at all ‘critical’ stages of the criminal

proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (quoting United States

v. Wade, 388 U.S. 218, 227-228 (1967)). A “critical stage” is “either a self-contained

proceeding or a discrete and separately identifiable portion of a larger

proceeding.” United States v. Roy, 855 F.3d 1133, 1147 (11th Cir. 2017). The right

to counsel is the right to effective assistance of counsel. See Strickland v. Washington,

466 U.S. 668, 686 (1984).

Although the Supreme Court has stated “the process due at a suppression

hearing may be less demanding and elaborate than the protections accorded the

defendant at the trial itself,” United States v. Raddatz, 447 U.S. 667, 679 (1980), the

undersigned maintains that due process and Mr. Bowens’ right to effective

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Case 6:21-cr-00141-RBD-NWH Document 72 Filed 07/06/22 Page 6 of 10 PageID 228

assistance of counsel require the postponement of the upcoming motions hearing

until Mr. Bowens’ competency is restored.

The upcoming hearing will address motions to suppress, which, in turn, will

require some testimony from government witnesses. Moreover, Mr. Bowens has

the option to testify at an evidentiary hearing, or to call witnesses of his own.

Because of Mr. Bowens’ current competency status, the undersigned is unable to

confer with Mr. Bowens about these critically important issues in his case.

At least one court has held that “a suppression hearing is undoubtably a

critical part of a criminal prosecution.” See United States v. Lattimore, 525 F. Supp.

3d 142, 148 (D.D.C. 2021); see also United States v. Green, 670 F.2d 1148, 1154, 216

U.S. App. D.C. 329 (D.C. Cir. 1981) (noting that “the suppression hearing is a

critical stage of the prosecution which affects substantial rights of an accused

person; the outcome of the hearing-the suppression vel non of evidence-may often

determine the eventual outcome of conviction or acquittal”). “In many cases, a

suppression hearing is the last major pre-trial proceeding, occurring long after

indictment and following substantial discovery. The outcome often determines the

ultimate result at trial or alternatively dictates whether a defendant accepts a plea

deal.” Lattimore, 525 F. Supp. 3d at 148.

Here, Mr. Bowens’ current competency status prevents him consulting with

the undersigned “with a reasonable degree of rational understanding.” See Dusky

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supra. Therefore, if the Court were to hold the motions hearing as scheduled on

July 26, 2022, it would be as if Mr. Bowens were not present to consult with the

undersigned during this critically important hearing in his case. The undersigned

believes that this would deprive Mr. Bowens of due process and his right to

effective assistance of counsel at critical stages of this prosecution. Lastly, it is

likely that this Court will soon commit Mr. Bowens to the custody of the Attorney

General, which will make Mr. Bowens physically unavailable for a “reasonable

period of time, not to exceed four months.” See 18 U.S.C. § 4241(d)(1).

Based on the forgoing, the undersigned respectfully requests that this Court

cancel the upcoming motions hearing and postpone the rescheduling of said

hearing until Mr. Bowens’ competency has been restored. As noted above, the

entire period of delay related to a determination of Mr. Bowens’ competency to

proceed in this case is excludable under the Speedy Trial Act. See 18 U.S.C. § 3161

(h)(1)(A). Therefore, there are no speedy trial implications in postponing the

upcoming motions hearing.

The undersigned has also conferred with Assistant United States Attorney

Amanda Daniels who has informed the undersigned that the government does not

oppose the relief sought herein.

In the event that the Court disagrees with the undersigned’s foregoing

request to postpone the motions hearing until Mr. Bowens’ competency is

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restored, the undersigned respectfully requests, in the alternative, a continuance

of the hearing to a date after July 26, 2022. The undersigned will be on a pre-paid

family vacation starting on July 15, 2022 and continuing through July 25, 2022.

The undersigned is scheduled to arrive back in Orlando, Florida on July 25, 2022

at 11:55 p.m., via a commercial airline flight. As noted above, the motions hearing

is currently set for the following morning, on July 26, 2022, at 10:00 a.m. Based on

the undersigned’s current travel itinerary, the undersigned respectfully requests

for the hearing to be continued to a date that will give the undersigned sufficient

time to prepare for the hearing, following his return from vacation. The

undersigned respectfully proposes the following dates, in the event that the Court

is unwilling to postpone the hearing until Mr. Bowens’ competency is restored:

Thursday, July 28, 2022; Friday, July 29, 2022; Monday, August 1, 2022; Thursday,

August 4, 2022; Friday, August 5, 2022; or to a date thereafter that is convenient

for the Court’s schedule.

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 the motion is unopposed; and (3) that the motion concerns matters

not covered by the scheduling order.

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CONCLUSION

WHEREFORE, the undersigned counsel for the defendant, Emmet Bowens,

respectfully requests that this Court postpone the motions hearing currently

scheduled in this case for July 26, 2022, at 10:00 a.m. (Doc. 69) until the defendant’s

competency to proceed in this case is restored, or, in the alternative, if the Court is

unwilling to grant said postponement until the defendant’s competency is

restored, the undersigned requests that this Court continue the hearing to one of

the following proposed dates: Thursday, July 28, 2022; Friday, July 29, 2022;

Monday, August 1, 2022; Thursday, August 4, 2022; Friday, August 5, 2022; or to

a date thereafter that is convenient for the Court’s schedule.

Respectfully submitted on this 6th day of July, 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 July 6, 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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