Opinion
Case No. 3:07cr017
01-17-2014
UNITED STATES OF AMERICA, Plaintiff, v. TIMOTHY HAROLD PEARSON, Defendant.
JUDGE WALTER H. RICE
DECISION AND ENTRY SETTING FORTH AMOUNT OF FORFEITURE
MONEY JUDGMENT; APPROPRIATE AMOUNT TO BE INCLUDED IN
MONEY JUDGMENT AGAINST DEFENDANT SET FORTH
On December 30, 2008, the Court sentenced Defendant to 20 months in prison, payment of $300 in special assessments, $149,718 in back taxes, penalties, cost of prosecution, $187,211 in restitution and three years of supervised release. Left unresolved at the time of sentencing was the amount of the consent money judgment against Defendant. See Judgment filed December 30, 2008 (Doc. #26). Although the Court indicated, at the time of sentencing, that the amount of the judgment to be entered would be determined within 60 days after the conclusion of briefing, it is obvious that that date has long since passed. Nonetheless, as long as counsel were aware that the amount of the consent money judgment was to be fixed, the Supreme Court has said that the strict timetable set forth by law need not be strictly followed. Dolan v. United States, 560 U.S. 605 (2010). See also, United States v. Bogart, 576 F.3d 565 (6 Cir. 2009) (holding that restitution order was not rendered invalid by two-year delay between sentencing and issuance of final restitution order). The Defendant's supervised release terminated on July 15, 2013.
Having reviewed the entirety of this Court's file, including the stipulated Statement of Facts, agreed to by and between the Government and the Defendant, and admitted by the Defendant to be true at the time of the entering of the plea of guilty to the three charges of conviction, the presentence report and the post-sentencing briefing of counsel (Doc. #29 and #30), the Court orders a consent money judgment in the amount of $13,300,000, against Defendant, to be paid jointly and severally with all convicted co-conspirators.
While it may seem counterintuitive to require a co-conspirator, who personally derived only $919,000 in gross receipts as a participant in this conspiracy, to pay the $13,300,000 fraudulently obtained by the various named and unnamed co-conspirators, such is in accordance with both the stipulated facts set forth in the Statement of Facts and the applicable case law standing for the premise that the proceeds of the conspiracy are considered a debt owed by each co-conspirator. See United States v. Martinez, 610 F.3d 1216, 1233-34 (10 Cir. 2010) (affirming imposition of joint and several liability on defendant who may not have been aware of magnitude of conspiracy, but understood how it worked and whose contribution was crucial to the success of the scheme); Bogart, 576 F.3d at 575-76 (noting that 18 U.S.C. ¶ 3664(h) gives district court option of imposing joint and several liability on co-conspirators, and affirming imposition of joint and several liability where each defendant played a crucial role in the conspiracy).
WHEREFORE, based upon the aforesaid, this Court, having concluded that the Government has proven, by the preponderance or greater weight of the evidence, joint and several liability for the entire amount of the proceeds obtained by means of the conspiracy, orders the entry of a consent money judgment in favor of the Government and against Defendant in the amount of $13,300,000 to be paid jointly and severally with any and all convicted coconspirators, having concluded that the entirety of the amount to be reasonably foreseeable proceeds of the criminal enterprise.
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WALTER H. RICE
UNITED STATES DISTRICT JUDGE
Copies to: Andrew J. Hunt, AUSA
John D. Smith, Esq.