Summary
noting that “[t]he use of the word ‘may' as well as the phrase ‘on any terms considered appropriate' [in Rule 38(e)(1)] shows that the decision to issue a stay is committed to the discretion of the district court.”
Summary of this case from United States v. CappsOpinion
Case No. CR-17-179-HE
08-08-2019
UNITED STATES OF AMERICA, Plaintiff, v. DAVID CHESLEY GOODYEAR, Defendant.
REPORT AND RECOMMENDATION
Before the court is Defendant David Chesley Goodyear's objection to the United States' application for post-judgment writ of garnishment and the United States' reply. Docs. 112, 113. Judge Heaton referred the matter to the undersigned under 28 U.S.C. § 636(b)(3). Doc. 114. Because Defendant's arguments are misplaced, and because the undersigned finds a stay is unwarranted, the court finds Defendant's objection should be overruled.
I. Procedural history.
On December 3, 2018, a jury found Defendant guilty of intentional damages to a protected computer, in violation of 18 U.S.C. §§ 1030(a)(5)A, (c)(4)(B)(i), & 2. The court sentenced him to 26 months' imprisonment, a $100 special assessment, a $2,500 fine, and restitution in the amount of $27,352.51. Doc. 89, at 6. The court ordered Defendant to pay either a lump-sum payment of $29,952.51, due immediately, or, if not paid immediately, pursuant to special instructions regarding installment payments. Id. at 7. Defendant appealed the conviction and sentence, and the appeal is pending before the Tenth Circuit. Doc. 91.
On July 11, 2019, the government filed an application for post-judgment writ of garnishment to JP Morgan Chase Bank, noting it made demand on Defendant for the total amount still owed. Doc. 111, at 2. Defendant objects to the United States' 28 U.S.C. § 3205 application, arguing the application "is not ripe" because his appeal focuses on the conviction and on the amount of loss. Doc. 112, at 1.
II. Statutory background.
The Federal Debt Collection Procedures Act (FDCPA), 28 U.S.C. §§ 3001-3307, provides civil procedures for the United States to use when it seeks to recover a judgment on a debt. 28 U.S.C. § 3001. Here, the government sought to satisfy monetary penalties imposed on Defendant in a criminal proceeding, and the collection proceedings fall within the purview of the FDCPA. 28 U.S.C. § 3002(8). The FDCPA allows the United States to garnish property of a debtor. 28 U.S.C. § 3205(a) ("A court may issue a writ of garnishment against property . . . in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor."). The statute sets forth the procedures to obtain a writ of continuing garnishment. See 28 U.S.C. § 3205.
III. Discussion.
To the extent Defendant argues no final judgment exists, Doc. 112, at 1, he is incorrect. A sentence that imposes criminal monetary penalties is final upon its entry by the sentencing court, even though it can be appealed, modified, corrected, or amended. United States v. Furkin, 1998 WL 846873, at *3 (7th Cir. 1998) (citing 18 U.S.C. §§ 3572(c), 3664(o)).
The court "may stay—on any terms considered appropriate—any sentence providing for restitution[.]" Fed. R. Crim. P. 38(e)(1). The use of the word "may" as well as the phrase "on any terms considered appropriate" shows that the decision to issue a stay is committed to the discretion of the district court. See United States v. Parikh, 858 F.2d 688, 693 (11th Cir. 1988) (noting a condition of a district court's conditional stay pending appeal was that payment of restitution must be paid "into the registry of the court" pending appeal without comment the court's requirement that the full amount of restitution be paid into the court's registry).
The second portion of the Rule again notes discretion: "[t]he court may issue any order reasonably necessary to ensure compliance with a restitution order . . . including . . . an order requiring the defendant to deposit all or part of any monetary restitution into the district court's registry[.]" Fed. R. Crim. P. 38(e)(2)(C); Parikh, 858 F.2d 688; United States v. Ginglen, 2007 WL 2909359 (C.D .Ill. 2007) (noting that although defense attorney did not move for stay, any stay would have required payment into the court registry); see Doc. 113, at 4.
In the alternative, Defendant requests "the Court hold its decision in abeyance," because to grant the application "invades" the Tenth Circuit's jurisdiction over his appeal. The question of whether to grant stay of the monetary penalties is not at issue before the Tenth Circuit. Despite Defendant's suggestions otherwise, there is no threat to judicial economy and this Court is not divested of jurisdiction over the government's application. See Doc. 112, at 2. The possibility that the Tenth Circuit might reverse Defendant's restitution monetary penalties is not determinative, because "if the judgment is reversed, [the Defendant] can move that the government return [his] money." Beardslee v. United States, 2008 WL 4334711, at *3 (N.D. Cal. 2008) (declining to impose a stay where a pending § 2255 appeal might impact fine and restitution judgments).
The Court will not stay the garnishment but will require that the garnished amounts be paid into the registry of the Clerk of Court for the United States District Court for the Western District of Oklahoma. See United States v. Bird, 2009 WL 4801374, at *2 (W.D.N.C. Dec. 8, 2009).
IV. Recommendation.
The undersigned recommends the court deny Defendant's objection to garnishment, grant the government's application for post-judgment writ of garnishment, and order that, during the pendency of the appeal (and after service and the filing of an answer), JP Morgan Chase Bank shall pay any relevant garnished amounts into the registry of the Clerk of Court for the United States District Court for the Western District of Oklahoma.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of the Court by the 22nd day of August, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
ENTERED this 8th day of August, 2019.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE