Opinion
NO. MC12-5028-RBL
11-15-2012
UNITED STATES OF AMERICA, Plaintiff, v. LAWANDA JOHNSON, Defendant/Judgment Debtor, and CALSTRS, Garnishee.
ANASTASIA D. BARTLETT, WSBA #7142 Assistant United States Attorney
THE HONORABLE RONALD B. LEIGHTON
(CR09-5703-RBL-2)
ORDER FOR A CONTINUING GARNISHMENT FOR NON-WAGES
A Writ of Continuing Garnishment, directed to Garnishee, CALSTRS, has been duly issued and served upon the Garnishee. Pursuant to the Writ of Continuing Garnishment, the Garnishee filed an Answer on or about July 23, 2012, stating that at the time of service of the Writ it had in its possession, custody or control personal property belonging to and due the Defendant/Judgment Debtor, Lawanda Johnson, and that Garnishee was indebted to the Defendant/Judgment Debtor. The interest is comprised of an account under the "Public Employee Pension, CA Education Code Section 22000 et seq."
On or about June 20, 2012, the United States Attorney's Office mailed to the Defendant/Judgment Debtor Lawanda Johnson at her last known address, by Certified Mail/Return Receipt Requested and First Class Mail, the following documents:
1. Application for Writ of Continuing Garnishment;
2. Order to Issue a Writ of Continuing Garnishment;
3. Writ of Continuing Garnishment;
4. Notice to Judgment Debtor from Clerk, United States District Court, with Request for Hearing Form; Notice to Defendant Debtor on How to Claim Exemptions Form; and Claim for Exemption Form; and
5. United States Attorney's Office Notice to Judgment Debtor of Garnishment, with Instructions to File an Objection to Garnishee's Answer and Request for Hearing Docket at 5.
The Defendant/Judgment Debtor Johnson, on July 3, 2012, filed a Motion to Vacate Order, Request for Hearing and Request for Transportation to Seattle. Docket at 6. The United States filed its "Response to Defendant/Judgment Debtor Lawanda Johnson's Motion to Vacate and Motion for Hearing" on August 24, 2012. Docket at 11. Thereafter, the Defendant/Judgment Debtor Johnson filed three further pleadings. Docket at 13, 14, and 15.
On October 12, 2012, this Court after having given due consideration to the entirety of the file and record, issued an Order denying Defendant/Judgment Debtor Lawanda Johnson's Motion to Vacate and denying Defendant's Motion for Hearing. Docket at 16.
The Defendant/Judgment Debtor Lawanda Johnson was sentenced in United States v. Lawanda Johnson., CR09-5703-RBL-2, United States District Court for the Western District of Washington (March 29, 2012), to pay a Special Assessment of $3,000.00 and $1,227,746.34 in Restitution. The remaining balance is $1,230,721.34. The restitution was entered in the Judgment in a Criminal Case, pursuant to the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. Section 3663 et. seq.
IT IS THEREFORE ORDERED as follows.
That the Judgment in a Criminal Case entered against Defendant Lawanda Johnson is a "judgment" under the Federal Debt Collection Procedures Act ("FDCPA"), creating a debt in behalf of the United States. See 28 U.S.C. Section 3002(8). The process and procedures of the FDCPA are applicable, including 28 U.S.C. Section 3205, Garnishment. U. S. v. Mays, 430 F.3d 963, 965 (9th Cir. 2005) (holding that the FDCPA's civil procedures for recovery may be applied to enforce restitution judgments under the MVRA).
That the restitution ordered pursuant to the criminal judgment in United States v. Lawanda Johnson, CR09-5703-RBL-2, United States District Court for the Western District of Washington (March 29, 2012), is a lien under 18 U.S.C. Section 3616(c) and (f), on Defendant/Judgment Debtor Johnson's interest in the "Public Employee Pension, CA Education Code Section 22000 et seq," and that Defendant/Judgment Debtor Johnson is restricted from taking loans against or otherwise encumbering the account in any manner that will adversely impact the amount, herein ordered to be garnished.
That the Garnishee immediately begin paying the non-exempt proceeds, on a monthly basis or at the time when the Defendant/Debtor Lawanda Johnson is entitled to such proceeds, from the "Public Employee Pension, CA Education Code Section 22000 et seq," that the Defendant/Judgment Debtor has an interest in, to the United States District Court, Western District of Washington, as directed herein, and until the debt of the Defendant/Judgment Debtor Lawanda Johnson is paid in full or until the Garnishee no longer has possession, custody or control, of any personal property belonging to the Defendant/Judgment Debtor or until further order of this Court. This is inclusive of all monies previously withheld by the Garnishee, in accordance with the Writ of Continuing Garnishment; and
That the Garnishee withhold and pay to the United States District Court for the Western District of Washington such proceeds from the "Public Employee Pension, CA Education Code Section 22000 et seq," that the Defendant/Judgment Debtor has a substantial nonexempt interest, in accordance with the limitations set forth in 15 U.S.C. Section 1673(a), the Consumer Credit Protection Act. 15 U.S.C. Section 1673(a) specifies that the Garnishee shall withhold and retain the lesser of:
15 U.S.C. Section 1672(b) defines "disposable earnings" as "that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld." To calculate disposable earnings the following are examples of categories of possible deductions that may be required to be subtracted from wages, commissions, and income:1. Twenty-five percent (25%) of his [a judgment defendant's] disposable earnings for that week, orIn the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Fair minimum hourly wage equivalent in effect to that set forth in paragraph (2)..
2. The amount by which his [judgment defendant] disposable earnings for that week exceed thirty times the federal minimum hourly wage... in effect at the time the earnings are payable.
1. Federal Income Tax;
2. Federal Social Security Tax;
3.State Income Tax (if any);
4.County Tax (if any); and
That the payment(s) shall be made out to the United States District Court, Western District ofWashington, referencing Case No. MC12-5028-RBL and CR09-5703-2, and delivered either personally or by First Class Mail to:
United States District Court
Western District of Washington
Attn: Financial Clerk- Lobby Level
700 Stewart Street
Seattle, Washington 98101
That such payments shall be applied to the Defendant/Judgment Debtor Lawanda Johnson's outstanding criminal monetary obligation, by the United States District Court for the Western District of Washington.
IT IS SO ORDERED this 15th day of November, 2012.
______________
Ronald B. Leighton
United States District Judge
Presented by: ______________
ANASTASIA D. BARTLETT, WSBA #7142
Assistant United States Attorney