Opinion
1:13-cr-00091-BLW
04-25-2024
UNITED STATES OF AMERICA, Plaintiff, v. MARK A. ELLISON, Defendant.
MEMORANDUM DECISION AND ORDER
B. Lynn Winmill United States District Judge.
INTRODUCTION
Before the Court is a claim from James Henshaw for decedent Marion Henshaw's remaining restitution from USA v. Ellison, et. al. For the reasons that follow, the Court will grant James Henshaw's request.
BACKGROUND
On April 14, 2014, the Jury returned a guilty verdict against Defendant Mark A. Ellison on 44 counts of securities fraud. (Dkt. 502, 816.) A judgment of conviction was entered on August 25, 2014, finding Ellison guilty on counts 4 - 13, 36- 45, 49-52, 56, 62, 67, 72 - 80, and 82 - 89 of the Superseding Indictment. (Dkt. 21, 724.) In addition to a term of imprisonment and supervised release, the Court ordered Ellison to pay $32,158,501.00 in restitution. Nov. 17, 2024, Restitution Order. (Dkt. 816.) As of February 15, 2024, Ellison still owed $28,197,133.65 in restitution. (Dkt. 1054.)
The Court is tasked with distributing restitution payments deposited with the Court to the victims. Unfortunately, since the 2014 judgment, many of the victims entitled to restitution passed away and left unclaimed funds in possession of the Court. As a result, the Clerk of the Court sent notice to individuals with a potential interest in the unclaimed funds. In response, claimant James Henshaw submitted a request to have the unclaimed restitution payments related to decedent Marion Henshaw released to him. In support of his request, James Henshaw submitted the following documents: (1) a victim affidavit; (2) Summit County, Ohio Probate Letters of Authority appointing James Henshaw as the fiduciary with authority to administer Marion Henshaw's estate; (3) a copy of Marion Henshaw's certificate of death; and, (4) copies of the certificates of death for Marion Henshaw's surviving spouse, Patricia Henshaw, and surviving daughter, Ann Henshaw Ferreri.
LEGAL STANDARD
Although money paid to federal courts generally must be deposited with the Treasury, courts are also allowed to deliver funds to their rightful owners. See 28 U.S.C. § 2041. Indeed, “[a]ny claimant entitled to any such money may, on petition to the court and upon notice to the United States attorney and full proof of the right thereto, obtain an order directing payment to him.” 28 U.S.C. § 2042. However, this means the claimant “bears the burden of affirmatively establishing his entitlement to the funds[.]” In re Pena, 974 F.3d 934, 940 (9th Cir. 2020); see also Hansen v. United States, 340 F.2d 142, 144 (8th Cir. 1965) (“the burden is upon the claimant to show his right to the fund.”).
ANALYSIS
James Henshaw has provided sufficient evidence to show he is entitled to receive Marion Henshaw's remaining restitution. Marion Henshaw's certificate of death shows that he passed away on July 4, 2015, as a resident of Ohio, and that James Henshaw was appointed as the executor of Marion Henshaw's estate. According to the Probate Court of Summit County, Ohio, Marion Henshaw's known surviving spouse is Patricia Henshaw, and his children are James Henshaw and Ann Henshaw Ferrari. Death certificates show that Patricia Henshaw passed away on January 11, 2022, and Anne Henshaw Ferrari passed away on April 4, 2018. According to the documents submitted, Marion Henshaw has no other surviving next of kin or other devisees.
Under Ohio law, an executor is tasked with administering the decedent's estate which naturally includes taking possession of the estate's property in anticipation for administration. In re Nagle's Est., 40 Ohio App.2d 40, 41, 317 N.E.2d 242, 243 (Ohio Ct. App. 1974); Ohio Rev. Code Ann. § 2113.05. The will therefore entitles James Henshaw, as executor, to receive Marion Henshaw's restitution and distribute it in accordance with Marion Henshaw's estate plan.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that James Henshaw's request for Marion Henshaw's unclaimed restitution payments from USA v. Ellison, et. al., is GRANTED. The Clerk of the Court shall release the funds to James Henshaw to be disposed of in accordance with Marion Henshaw's will.