United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LAWRENCE O. ANDERSON, Magistrate Judge.
On September 13, 2013, the Government filed an Application for Writ of Garnishment directed to the Gila River Indian Community, seeking continuing garnishment of funds belonging to Defendant Nathaniel James Webb ("Defendant"), a judgment-debtor. (Doc. 153) This issue was referred to the undersigned Magistrate Judge on October 22, 2013 to rule on Defendant's Motion for Hearing, doc. 160, in response to the Clerk's Notice of Post-Judgment Garnishment, doc. 155, filed September 16, 2013 and make appropriate findings and orders as deemed appropriate. (Doc. 165)
The docket reflects that on April 10, 2013, an Amended Criminal Judgment was entered against Defendant in the U.S. District Court, District of Arizona, finding him guilty of Armed Robbery and committing him to "[t]he custody of the Bureau of Prisons for a term of ONE HUNDRED EIGHT (108) MONTHS on Count One with credit for time served. (Doc. 151 at 1) The term of imprisonment imposed by this Judgment runs concurrently with Defendant's term of imprisonment in CR 10-1389-001-PHX-JAT. ( Id. ) Further, the term of imprisonment imposed in this Judgment runs consecutively to Defendant's term of imprisonment in CR XXXX-XXXXXX, Maricopa County Superior Court. ( Id. )
As part of the criminal judgment, Defendant was ordered to pay $100.00 in mandatory special assessments and $2, 200.00 in restitution to victim William Wetzel, totaling $2, 300.00 in criminal monetary penalties, which were due immediately upon sentencing. ( Id. at 1-2) The assigned Senior District Judge also directed that payments be made through the Bureau of Prisons' Inmate Financial Responsibility Program with the balance of restitution be paid in equal quarterly installments of $25.00 over a period of 96 months to commence 30 days after Defendant's release from imprisonment. ( Id. at 2) "Upon release from imprisonment, the defendant shall be placed on supervised release for a term of THREE (3) YEARS on Count 1." ( Id. at 1) "Restitution shall be paid jointly and severally with the co-defendant Isaac Morgan, in this case, in addition to the defendant, Johnny Lopez, in the related case, CR 11-01835-001-PHX-ROS, until restitution is paid in full." ( Id. at 2) The assigned Senior District Judge further ordered that if incarcerated, which Defendant is presently, payment of all criminal monetary penalties are due during imprisonment at a rate of not less than $25.00 per quarter. ( Id. ) According to the Government, on September 13, 2013, the balance due on the judgment was $2, 275.00 through September 6, 2013. (Doc. 153 at 1)
On September 13, 2013, and pursuant to 28 U.S.C. § 3205(b)(1) on the criminal judgment entered against Defendant, the Government filed an Application for Writ of Garnishment directed to the Gila River Indian Community ("Gila River"), Sacaton, Arizona, seeking garnishment of $2, 275.00, belonging to Defendant as of September 13, 2013. ( Id. ) "The Garnishee [was] believed to have possession of property in which the debtor [Defendant] has a substantial nonexempt interest, and... that Garnishee will continue to have possession of property for which Garnishee is or may become indebted to the debtor." ( Id. ) On September 16, 2013, the Clerk of Court issued a writ of continuing garnishment, notified Gila River of the writ with instructions that Gila River must answer the writ, sent Defendant notice of the writ's issuance along with instructions for filing objections, requesting a hearing, and requesting a transfer to the district of his residence. (Doc. 155) On September 18, 2013, the Government filed a Notice of Service, certifying that, on the same date, a copy of the writ, the initial Clerk's Notice to Judgment-Debtor, and instructions were sent to the Judgment-Debtor (Defendant) by certified and first-class mail to the Judgment-Debtor's last known address. (Doc. 156)
On October 3, 2013, the Government filed a Motion for Stay of Case Proceedings Contingent Upon Federal Government Shutdown which was granted by the assigned District Judge. (Doc. 159) On October 22, 2013, an order was entered, lifting the stay of the case after the Government filed a Notice of Resumed Government Activity. (Doc. 164)
In his October 8, 2013 request for hearing, Defendant claims an exemption under 26 U.S.C. § 6334(a)(6) because the "Property in question are benefits paid by the profits earned from his tribe." (Doc. 160 at 1) Additionally, he contends that the restitution and special assessment ($2, 300.00) he was ordered to pay to the victim jointly and severally with the co-defendant Isaac Morgan, in this case and defendant, Johnny Lopez, in the related case, CR 11-01835-001-PHX-ROS,
was satisfied while the Defendant was in the custody of the Arizona Department of Corrections. (See Trust Account Records for Nathaniel J. Webb AZDOC. No. 269559. These records could not be obtained in time to be attached to this pleading.) Therefore, nothing is owed, and garnishment is not necessary.
( Id. )
In response to Defendant's claim the federal restitution amount had been paid, and pursuant to an order by this Magistrate Judge for current information, the Government filed a Notice of Investigation, which confirmed the following: Defendant Nathaniel James Webb, still owes $2, 275.00; Defendant Johnny Lopez (CR 11-1835-PHX-ROS) had paid nothing toward the $2, 200.00 joint and several restitution obligation; Isaac Morgan, the co-defendant in this case, had also paid nothing toward the $2, 200.00 joint and several restitution; Defendant has paid $25.00 of his special assessment, and, therefore, owes the total of $2, 275.00 ($75.00 for the mandatory special assessment and $2, 200.00 for restitution). (Doc. 168) In that same Order, Defendant was ordered to "[f]ile a reply to the United States' Response to Request for Hearing on or before Friday, November 22, 2013, attaching thereto copies of all documents that confirm and prove Defendant's restitution and special assessment ($2, 300.00) has been paid and satisfied." ( Id. ) Defendant was warned that, if he failed to comply with the October 23, 2013 Order, and "[a]bsent a showing good cause, Defendant's request for a hearing may be denied and the United States' Application for Writ of Garnishment may be granted." (Doc. 166 at 3) Since this order was entered, Defendant has failed to either comply with it or file any further document in this case.
On November 22, 2013, the Garnishee, Gila River Indian Community, filed an answer, indicating it held property ( per capita funds) in which Defendant has an interest in the form of "Quarterly Per Capita Payments pursuant to the Gila River Indian Community Revenue Allocation Ordinance, GRIC Code, Title 22, Chapter 13." (Doc. 171, ¶ 5 at 2) (emphasis omitted). Gila River described the value of the property as a small percentage of net gaming revenues as required under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701. The exact amount of each payment is unknown at this time. ( Id., ¶ 4) Gila River "anticipates being indebted to [Defendant] as follows: January 31, April 30, July 31, and October 31 of every year [Defendant] opts into the Per Capita payment program." ( Id., ¶ 5 at 2)
II. The Mandatory Victim Restitution Act
Under the Mandatory Victim Restitution Act ("MVRA"), 18 U.S.C. § 3663(a), the federal government may collect a restitution judgment using the procedures available for the collection of criminal fines outlined in 18 U.S.C. § 3613(a), see 18 U.S.C. §§ 3613(f), 3664(m), and "may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law[.]" United States v. Berger, 574 F.3d 1202, 1204 (9th Cir. 2009) (quoting 18 U.S.C. § 3613(a)). "The Federal Debt Collection Procedures Act of 1990 (FDCPA') is such a statute." United States v. Gianelli, 543 F.3d 1178, (9th Cir. 2008), cert. denied, 555 U.S. 1175 (2009). The FDCPA, 28 U.S.C. §§ 3001-3308, "provides the exclusive civil procedures for the United States to... recover a judgment on a debt." 28 U.S.C. § 3001; see also United States v. Mays, 430 F.3d 963, 965 (9th Cir. 2005). The word "[d]ebt" within the meaning of the FDCPA includes "[a]n amount that is owing to the United States on account of... restitution...." 28 U.S.C. § ...