The U.S. government is seeking a five-year sentence for Team Xecuter's Gary Bowser
In new court documents released yesterday, the U.S. government discussed its desires for sentencing in the case of Gary Bowser, who was the public face of Team Xecuter. The U.S. is recommending sixty months, or five years, of imprisonment for Bowser, a sentence it admits is "greater than the sentence recommended by the Probation Office," and comes on top of the $4.5 million fine he's already accepted after pleading guilty. (That's only for the criminal case brought against him by the U.S. government; in the civil suit against him filed by Nintendo of America, he was recently ordered to pay $10 million.)
The state feels, however, that this sentence is justified due to the due to Bowser's importance in Team Xecuter, his "history and characteristics," and as a proper deterrent against cybercriminal activities. The state points out that Team Xecuter was a highly sophisticated, multinational business that cost the videogame industry between an estimated $65 million and $150 million in damages, and it could not have operated as effectively without Bowser's marketing. They also claim that he has a history of criminality - citing a charge of forgery and fraud under $5000 from 2004 - and that he has a risk of recidivism, given how long he has worked in the criminal space. "After he is released, the same financial hardships and social isolation that led to his becoming the public voice of the Team Xecuter enterprise will be present when he reenters society after serving his sentence," says one section of the document. Finally, they believe that it is a "just punishment" that will help deter other potential cybercriminals, given how difficult it can be to identify or extradite offenders, citing Bowser's own co-defendants in this case, Max Louarn and Yuanning Chen.
Conversely, the defense is requesting a nineteen month sentence, as they believe the prosecution is exaggerating the importance of his role in Team Xecuter, that his character is defensible and that, as a Canadian citizen, he has been and will be treated worse in the American prison system than an American citizen would.
"Mr. Bowser was used by Max Louarn," states the defense plainly near the beginning of the document. They go on to downplay his role in the organization, citing documents provided in discovery and Bowser's plea deal. Team Xecuter “generated at least tens of millions of dollars of proceeds," according to Bowser; however, he believes millions of it "must" have gone to Louarn and Chen, with "the rest" of it going to unindicted developers, manufacturers and resellers of Team Xecuter products, as Bowser was only paid between $500 and $1000 per month by Louarn. He is estimated to have made $320,000 over the course of his seven years with Team Xecuter, including his pay and ad revenue generated from independent resellers, despite assuming the highest risk by marketing these products. In addition to the pay discrepancy, the defense also asserts that while Bowser's role was important, he was not the leader, and that "without Chen or Louarn, there would be no enterprise. But without Mr. Bowser, Louarn would have found someone else to be 'the face' of this effort." The defense also maintains that the sentence is disproportionately harsh compared to similar offenses, citing United States v. Nomm, a case from 2015 regarding the sale of pirated media. Similar to Bowser's case, it regarded one person being indicted for the actions of a piracy group, wherein the defendant pleaded guilty, had been involved with the group roughly as long as Bowser was involved with Team Xecuter, was estimated to have caused $400 million in damages, and generated $150 million in profit, yet was only sentenced to 366 days in prison.
The defense goes on to discusses Bowser's tumultuous and isolating childhood, which they believe led to his love of computers and eventually his criminality. There are also quotes from several friends of Bowser's who defended his character, describing him as a man who “wanted to please people and be liked,” and said they would help him when he is released back to Canada, to help prevent him returning to criminal activity.
Lastly, the defense asserts that concessions should be made for the conditions in which Bowser has been contained, and the difficulties of being a Canadian citizen in the American prison system. Bowser has been detained since October 2, 2020, as "Bowser is a Canadian citizen with no status in the U.S. and no family resources in Canada, it was impossible to achieve his presumptive pretrial release." By the time of sentencing, Bowser will have been detained for sixteen months. The defense argues that, if their nineteen month sentence is granted, he will essentially be serving a thirty-nine month sentence, with the first sixteen already served. Bowser has also spent this time dealing with medical issues, such as an infection of COVID-19 and elephantiasis, contracted in 2018, that necessitates the use of a wheelchair or cane and has been described as a "permanent deform[ity]" by medical records. Despite this, he did not "sit around feeling sorry for himself," and has spent his time in custody reading self-help books and has lost a hundred pounds. They also believe that he is being treated unfairly as a Canadian citizen, as any American would have been released on appearance bond, rather than spending all this time in prison, and likely would have been redirected to a minimum-security camp. His status as a deportable also prevents his inclusion to several early-release programs, such as the Earned Early Release program that the defense believes he would have qualified for due to his self-improvement, or the RDAP substance abuse program, which would he would have qualified for "based on his long-time abuse of alcohol."
A judge will soon make a decision regarding Bowser's sentencing.
Source (Application for Commissioner Order) Source (Defendant's Motion)
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