Opinion
CASE NO. 4:08-CR-171
2021-07-14
UNITED STATES of America, Plaintiff, v. Majeed BAZAZPOUR, Defendant.
Suzana Krstevski Koch, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
Suzana Krstevski Koch, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
ORDER
[Resolving ECF No. 292]
Benita Y. Pearson, United States District Judge
Pending is the Government's Motion to Authorize Payment from Inmate Trust Account. ECF No. 292. The Court ordered Defendant to file a response. Order [non-document], May 7, 2021. Defendant filed a response. ECF No. 293. For the reasons provided below, the Motion is granted.
I. Background
After a jury trial, Defendant was found guilty of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, conspiracy to commit arson of an interstate building, in violation of 18 U.S.C. § 371, conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), aiding and abetting arson in commission of a felony, in violation of 18 U.S.C. § 844(h) and 18 U.S.C. § 2, aiding and abetting mail fraud, in violation of 18 U.S.C. § 1341 and 18 U.S.C. § 2, and aiding and abetting money laundering, in violation of 18 U.S.C. § 1957(a) and 18 U.S.C. § 2. ECF No. 189.
Following Sixth Circuit review, Defendant was sentenced to 240 months imprisonment, three years supervised release, a $600.00 special assessment, and ordered to pay restitution in the amount of $778,648.64. ECF Nos. 227 and 271. In addition, Defendant's restitution obligation was subjected to a 0.27% interest rate. ECF No. 227. A payment schedule was established in accordance with the Federal Bureau of Prisons Inmate Financial Responsibility Program ("IFRP"), requiring Defendant to pay 25% of his gross income per month. Id. The Judgment and Commitment Order provides that, "[n]otwithstanding establishment of a payment schedule, nothing shall prohibit the United States from executing or levying upon property of the defendant discovered before and after the date of this Judgment." Id. The Court denied Defendant's Motion for Modification or Reduction of Restitution. ECF No. 290.
The Government moves the Court "for an Order authorizing the Bureau of Prisons ("BOP") to remit to the Clerk of Court all funds held in the BOP Inmate Trust Account of the Defendant as payment towards the criminal monetary penalties imposed in this case." ECF No. 292 at PageID #: 7656. The Government submits that Defendant owes $799,952.00 towards his criminal monetary penalties, and that it "was informed that Defendant currently maintains substantial funds in his inmate trust account maintained by the BOP." Id. at PageID #: 7657. Specifically, the Government notes that the BOP "currently maintains in its possession, custody, or control approximately $1,766.33 in funds belonging to Defendant." Id. The Government "requests that the Court grant the Motion and Order that BOP turn over the funds in Defendant's inmate trust account, minus $300.00 that will remain in said account for [D]efendant's miscellaneous expenses, to the Clerk of Court to be applied towards Defendant's debt." Id. at PageID #: 7659.
Defendant does not dispute his obligation to pay restitution but requests that the Court consider allowing him to retain the funds in his inmate trust account so that he may continue paying in accordance with the IFRP established payment schedule. Id. at PageID #: 7665.
II. Discussion
Procedures and remedies for the enforcement of criminal monetary penalties are set forth in 18 U.S.C. § 3613. This statute provides that an order of restitution may be enforced in a manner similar to the enforcement of a fine. See 18 U.S.C. § 3613(f). Additionally, an order of restitution is to be treated as "a lien in favor of the United States on all property and rights to property of the person fined." Id. § 3613(c). To this end, an order of restitution "may be enforced against all property or rights to property of the person fined," with certain exceptions. Id. § 3613(a). Notably, for criminal debts such as fines and restitution, property in the form of cash is not considered exempt from government seizure. See id. § 3613(a)(1) (citing 28 U.S.C. § 6334(a)(1–8, 10, 12)).
Furthermore, the Crime Victims’ Rights Act ("CVRA") provides that a crime victim has "[t]he right to full and timely restitution as provided in law." 18 U.S.C. § 3771(a)(6). Consistent with the CVRA, the Mandatory Victims Restitution Act ("MVRA") mandates that "[i]f a person obligated to provide restitution, or pay a fine, receives substantial resources from any source ... during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed." 18 U.S.C. § 3664(n). Several courts have held that Section 3664(n) is self-executing; thus, receipt of "substantial resources" by a defendant "triggers an automatic payment requirement." United States v. Lassiter , No. 13-20476, 2021 WL 486611, at *1 (E.D. Mich. Feb. 10, 2021) ; see also United States v. Korbe , No. 2:09-CR-0005-NR, 2020 WL 1929256, at *3 (W.D. Pa. Apr. 21, 2020) (citing United States v. Bratton-Bey , 564 F. App'x 28, 29 (4th Cir. 2014) ).
Lastly, there is disagreement among some courts as to whether Section 3664(n) may be applied to compel restitution when a defendant's restitution order limits periodic payments to a fixed amount, in accordance with an IFRP payment schedule. See Lassiter , 2021 WL 486611, at *2. Compare United States v. Armstrong , No. 09-CR-135 (BAH), 2020 WL 136289, at *6 (D.D.C. Jan. 13, 2020) (declining to compel restitution payment from an inmate's trust account, when the restitution order "limits payments to $50 per quarter during the defendant's term of incarceration"), with United States v. Brewer , 699 F. App'x 318, 319 (5th Cir. 2017) (holding that "[p]articipation in the IFRP and compliance with a payment schedule does not preclude[ ] the Government from using other available collection mechanisms to seek payment of monetary penalties").
Here, unlike in Armstrong , while Defendant's Judgment and Conviction Order establishes an IFRP payment schedule, it also specifically provides that, "[n]otwithstanding establishment of a payment schedule, nothing shall prohibit the United States from executing or levying upon property of the defendant discovered before and after the date of this Judgment." ECF No. 227. Therefore, nothing precludes the Government in this case from seizing the funds in Defendant's inmate trust account, which constitute a "substantial resource" under Section 3664(n). See United States v. Poff , No. CR09-0160, 2016 WL 3079001, at *6 (W.D. Wash. June 1, 2016), vacated and remanded on other grounds , 781 F. App'x 593 (9th Cir. 2019) (applying the ordinary meaning of "substantial" to hold that $2,663.05 qualifies as a "substantial resource" under Section 3664(n) ).
III. Conclusion
For the reasons provided above, the Government's Motion to Authorize Payment from Inmate Trust Account is granted. Accordingly, the Bureau of Prisons is ordered to release $1,466.33 held in Defendant's inmate trust account to the Clerk of this Court as payment towards Defendant's outstanding restitution obligation.
IT IS SO ORDERED.