United States District Court, D. Arizona
REPORT AND RECOMMENDATION
EILEEN
S. WILLETT UNITED STATES MAGISTRATE JUDGE
TO
THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES
DISTRICT JUDGE:
Pending
before the Court is the Defendant's Request for Post
Judgment Garnishment Hearing (Doc. 36) and the
Government's Response to Hearing Request (Doc. 42). The
matter was referred to the Magistrate Judge by Senior United
States District Judge Teilborg on January 7, 2019 for the
purpose of conducting a garnishment hearing and entering
related rulings (Doc. 37). After a stay of the proceedings
due to the Federal Government shutdown, a hearing was
scheduled and conducted on March 5, 2019. The matter was
deemed submitted for decision. The undersigned has considered
the file, testimony presented, and argument of the parties.
On
September 7, 2016, the Defendant pled guilty to Wire Fraud, a
Class C felony offense, in violation of 18 U.S.C. §
1343. Judgment was entered consistent with the plea agreement
on January 17, 2017, and the Defendant was sentenced to
twelve months and one day in the Bureau of Prisons, followed
by three years of supervised release. (Doc. 21). The Court
ordered the Defendant to pay $772, 211. 73 in restitution to
the victim(s) in the case in equal monthly installments of
$300 over a period of 58 months, commencing sixty days after
the date of Judgment. While incarcerated, the Defendant was
ordered to make payments under the Bureau of Prisons Inmate
Financial Responsibility Program. (Id.). The
Defendant paid $50.00 toward restitution while incarcerated.
Upon
her release from prison, the Defendant voluntarily paid
nothing toward her restitution balance, despite obtaining a
job in March 2018. The Defendant earns $70, 000.00 per year
as the general manager of a winery. The Defendant candidly
recognized that she was aware of her obligation and failed to
make any payments as ordered. The Defendant made no effort to
pay anything toward her restitution judgment for twelve
months subsequent to her release.
On
December 20, 2018, the Government filed an Amended
Application for Writ of Garnishment pursuant to 28 U.S.C.
§ 3205(b)(1), and the Clerk of Court issued a Writ.
(Doc. 32). The Writ was properly served on the Garnishee, the
Defendant's employer. The Garnishee answered the Writ and
filled out a Non-Exempt Earnings Statement reflecting the
Defendant's income of $70, 000.00 per year (Doc. 42-1 at
2). That the Defendant was properly served with the Writ,
Notice of Post Judgment Garnishment and Garnishment
Instructions is undisputed (Doc. 34). The Defendant requested
a hearing after her wages were successfully garnished. The
Defendant requests that the Court return her restitution
obligation to payments in the amount of $300.00 per month
because the amounts deducted from her paycheck through
garnishment are more than she believes she can afford. The
Defendant aspires to support her mother and her minor
children in her current home, while assisting one child with
college tuition. The Defendant expressed remorse for not
paying restitution as ordered.
By
statute, the Defendant's restitution order created a
“lien in favor of the United States on all property and
rights to property of [Defendant].” 18 U.S.C.§
3613. The restitution order “may be enforced by the
United States in the same manner that it recovers fines or
‘by all other available and reasonable
means.'” United States v. Hester, No.
10CR2967 BTM, 2016 WL 1007335, at *2 (S. D. Cal. Mar. 14,
2016) (quoting 18 U.S.C. § 3664(m)(1)(A)(ii)). The
United States “may enforce a restitution judgment
‘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); 18 U.S.C. §
3613(a). The Federal Debt Collection Procedures Act provides
explicit guidance regarding the use of writs of garnishment
to recover a judgment on a debt. 28 U.S.C. § 3205.
The
existence of a periodic payment provision in this Court's
restitution order does not preclude the United States from
later seeking garnishment of the Defendant's wages.
See United States v. Webb, 2014 WL 4371276 (D. Ariz.
Sept. 4, 2014) (“Despite the existence of a payment
schedule for restitution in a judgment, the United States may
pursue immediate or adjusted enforcement of restitution as
long as the judgment contains nothing to the
contrary.”). Here, the United States waited a
significant period before pursuing available statutory
remedies under the law. Nothing in the Court's judgment
prohibits the United States from pursuing this garnishment.
Prior
to an Answer having been filed, the Defendant may request a
garnishment hearing on the following grounds: (i) the
probable validity of any claim of exemption by the judgment
debtor, (ii) compliance with any statutory requirement for
the issuance of the garnishment, or (iii) certain
circumstances related to a default judgment which are not
applicable to this case. 28 U.S.C. § 3202(d). At the
hearing, the Defendant did not dispute the United State's
compliance with statutory procedures for obtaining the
garnishment. Nor did the Defendant assert a claim to an
exemption regarding the non-exempt portion of her wages. This
is not a default judgment case. The Defendant simply
contested the garnishment based on financial hardship for
which she provided no supporting financial documentation or
legal authority. The undersigned finds that the Defendant has
failed to meet her burden of proof pursuant to 28 U.S.C.
§ 3202(d).
The
Court retains the discretion to modify or suspend a writ of
garnishment based on the circumstances of the individual
garnishee under 28 U.S.C.§ 3013. United States v.
Ogburn, 499 F.Supp.2d 28, 31 (D. D.C. 2007). Based upon
the information presented by the parties in this case,
however, the undersigned finds that the twenty-five (25)
percent garnishment of Defendant's non-exempt earnings is
entirely reasonable and appropriate. Defendant's claim of
financial hardship is not supported by the record in this
case.
For the
reasons set forth herein, IT IS RECOMMENDED
that the Court deny the Defendant's request to quash,
modify, or suspend the garnishment of 25% of her non-exempt
wages.
This
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Fed. R. App. P. 4(a)(1) should not be filed until
entry of the District Court's judgment. The parties shall
have fourteen days from the date of service of a copy of this
recommendation within which to file specific written
objections with the Court. See 28 U.S.C. ยง
636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have
fourteen days within which to file a response to the
objections. Failure to file timely objections to the
Magistrate Judge's Report and Recommendation may result
in the acceptance of the Report and Recommendation by the
District Court without further review. Failure to file timely
objections to any factual determinations of the Magistrate
Judge may be considered a waiver of a party's right to
appellate review of ...