Opinion
CR 06-0381 CRB
01-20-2023
UNITED STATES OF AMERICA, Plaintiff, v. JESSE JAMES PADUA, Defendant, NIPPON EXPRESS USA, INC. Garnishee.
STEPHANIE M. HINDS United States Attorney, MICHELLE LO, SHINING J. HSU, Assistant United States Attorney, Attorneys for United States of America
STEPHANIE M. HINDS United States Attorney, MICHELLE LO, SHINING J. HSU, Assistant United States Attorney, Attorneys for United States of America
CLERK'S NOTICE OF POST-JUDGMENT GARNISHMENT AND INSTRUCTIONS TO DEFENDANT
Pursuant to 28 U.S.C. § 3202(b), you are hereby notified that a Writ of Continuing Garnishment has been issued by the Clerk of the Court to Garnishee, Nippon Express USA, Inc. The Writ of Continuing Garnishment is issued on application by the United States of America as a means of collecting a judgment against the defendant, Jesse James Padua, in case number CR 06-0381 CRB (Northern District of California). The original principal obligation under the judgment was the sum of $204,554.00, for a criminal debt. A balance of approximately $324,803.11 remains due as of November 22, 2022. Under the writ, assets of the defendant in the custody, control, or possession of the Garnishee are being taken by the United States. The United States seeks to recover this amount plus the statutorily authorized litigation surcharge of ten percent (10%) of the unpaid restitution balance ($32,480.31). 28 U.S.C. § 3011(a). Thus, the total amount sought by this writ is $357,283.42.
In addition, you are hereby notified that there are exemptions under the law which may protect some of the property from being taken by the United States if the defendant, Jesse James Padua, can show that the exemptions apply. The attached “Notice to Defendant on How to Claim Exemptions” and “Claim for Exemption Form” summarizes the exemptions that apply under federal law, and provide instructions on how to file a claim for exemption.
INSTRUCTIONS TO DEFENDANT
A. Request For Hearing for Return of Property Pursuant to 28 U.S.C. § 3202(b).
If you are Jesse James Padua, you have a right to ask the Court to return your property to you:
1. if you think the property the United States is taking qualifies under one of the exemptions, or
2. in the event a default judgment has been entered against you, if you think you do not owe the money to the United States that it claims you do.
If you want a hearing to ask the Court for the return of your property, pursuant to 28 U.S.C. § 3202(b), you must notify the Court within 20 days after you receive this notice. You must make your request in writing, and either mail it or deliver it to the Clerk of the Court at:
Clerk, United States District Court
450 Golden Gate Avenue
San Francisco, CA 94102
If you wish, you may use the attached “Request for Hearing” form to request the hearing by checking the appropriate boxes and mailing it or delivering it to the Clerk of the Court at the above address. You must also send a copy of your written request for hearing to the United States at the following address so that the United States will know that you want a hearing:
Shining J. Hsu, Assistant U.S. Attorney
United States Attorney's Office
450 Golden Gate Avenue, 9th Floor
P.O. Box 36055
San Francisco, CA 94102
Pursuant to 28 U.S.C. § 3202(b), the hearing will take place within 5 days after the Clerk receives your request, if you ask for it to take place that quickly, or as soon after that as possible.
At the hearing, you will be required to explain to the judge why you believe the property taken by the United States is exempt or, if a default judgment has been entered against you, why you believe that you do not owe the money to the United States. Pursuant to 28 U.S.C. § 3202(d), however, please note that the issues at the hearing are limited:
1. to the probable validity of any claim of exemption;
2. to compliance by the United States with any statutory requirements for the issuance of the Writs of Continuing Garnishment; and,
3. in the event the judgment is by default (but only to the extent that the Constitution or another law of the United States provides a right to a hearing on the issue), to:
a. the probable validity of the claim for the debt which is merged in the default judgment, and
b. the existence of good cause for setting aside such judgment.
B. Objection to Garnishee's Answer and Request For Hearing Pursuant to 28 U.S.C. § 3205(c)(5).
In addition, since the Writ of Continuing Garnishment has been issued by the Clerk of the Court to the Garnishee, it is required to file an Answer containing information about your earnings and property in its custody, control, or possession, and to mail you a copy of that Answer. If you object to the Garnishee's Answer, pursuant to 28 U.S.C. § 3205(c)(5), you must file with the Court a written objection to the Answer and request a hearing within twenty (20) days after receipt of the Answer. The objection must state your reasons for believing that the earnings or property listed in the Garnishee's Answer are not subject to garnishment by the United States. The burden is on you to prove the grounds in support of your objection. Your written objection to the Garnishee's Answer and request for a hearing must be mailed or delivered to the Court at the following address:
Clerk, United States District Court
450 Golden Gate Avenue
San Francisco, CA 94 102
If you wish, you may use the attached “Objection to Garnishee's Answer and Request for Hearing” form by completing it and mailing it or delivering it to the Clerk of the Court at the above address. A copy of the objection and request for hearing must also be mailed or delivered to both the Garnishee and the attorney for the United States at the following respective addresses:
Nippon Express USA, Inc.
Attn: Payroll
800 Illinois Route 83
Wood Dale, IL 60191
Shining J. Hsu, Assistant U.S. Attorney
United States Attorney's Office
450 Golden Gate Avenue, 9th Floor
P.O. Box 36055
San Francisco, CA 94102
Pursuant to 28 U.S.C. § 3205(c)(5), the Court will hold a hearing within ten (10) days after the date that your Objection to Garnishee's Answer and Request for Hearing is received by the Court, or as soon thereafter as is practicable. The Court will notify you of the date, time, and place of the hearing.
If you do not request a hearing within 20 days from the date you receive this notice or within 20 days from the date you receive a copy of the Garnishee's Answer, whichever is later, the Court may enter an order garnishing the property held by the garnishee and permitting the United States to use the proceeds from the property to pay your judgment. 28 U.S.C. §§ 3202(b) and 3205(c)(7).
C. Request for Transfer of Proceedings by Defendant.
If you live outside the Northern District of California, which is comprised of the counties of Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, Santa Clara, Santa Cruz, San Francisco, San Mateo, and Sonoma, you may request, not later than 20 days after you receive this notice, that the Court transfer this proceeding to take your property to the Federal judicial district in which you reside. You must make your request in writing, and either mail it or deliver it to the Court at the following address:
Clerk, United States District Court
450 Golden Gate Avenue
San Francisco, CA 94 102
You must also send a copy of your request to the attorney for the United States at the following address so that the United States will know that you want the proceeding to be transferred:
Shining J. Hsu, Assistant U.S. Attorney
United States Attorney's Office
450 Golden Gate Avenue, 9th Floor
P.O. Box 36055
San Francisco, CA 94102
Be sure to keep a copy of this notice for your own records. If you have any questions about your rights or about this procedure, you should contact a lawyer, an office of public legal assistance, or the Clerk of the Court. The Clerk is not permitted to give legal advice, but can refer you to other sources of information.
REQUEST FOR HEARING FORM
I request that the Court hold a hearing in this matter for the following reason(s):
[ ] I claim an exemption in the property that the United States is taking. See the attached Claim for Exemption Form.
[ ] I assert that the statutory requirements for the issuance of the writ of garnishment have not been complied with.
[ ] The judgment against me was obtained by default, and I assert that I do not owe the judgment debt.
OBJECTION TO GARNISHEE'S ANSWER AND REQUEST FOR HEARING
I, Jesse James Padua (“defendant”) hereby object to the answer of the Garnishee(s), on the following grounds:
1. The earnings and property listed in the Garnishee's Answer are not subject to garnishment by the United States for the following reasons:
a. ___
b. ___
c. ___
d. ___
2. I further object to the answer of the Garnishee because:
a. ___
b. ___
c. ___
d. ___
I FURTHER REQUEST that the Court hold a hearing in this matter.
NOTICE TO DEFENDANT ON HOW TO CLAIM EXEMPTIONS
The attached pre-judgment or post-judgment process has been issued on request of the United States of America.
The law provides that certain property and wages cannot be taken. Such property is said to be exempted. The attached “Claim for Exemption Form” lists the major exemptions under federal law. There is no exemption solely because you are having difficulty paying your debts.
If you claim an exemption, you should (i) fill out the attached “Claim for Exemption Form” and “Request for Hearing Form,” and (ii) deliver or mail the original of both forms to the Clerk's Office United States District Court, 450 Golden Gate Avenue, San Francisco, CA 94102. You also need to send a copy of both forms to the United States Attorney's Office, Attn: AUSA, Shining J. Hsu, Financial Litigation Progarm, 450 Golden Gate Avenue, 9th Floor, P.O. Box 36055, San Francisco, CA 94102. To show the court that you sent a copy of the Request for Hearing form to the United States Attorney's Office, you need to complete and file the Certificate of Service attached to the Request for Hearing form.
On the day of the hearing, you should come to court ready to explain why your property is exempted, and you should bring any documents which may help you prove your case. If you do not come to court at the designated time and prove that your property is exempt, you may lose some of your rights.
If you have questions regarding your exemption rights or do not understand them, you should seek the advice of an attorney.
CLAIM FOR EXEMPTION FORM
EXEMPTIONS UNDER FEDERAL LAW (18 U.S.C. § 3613)
NOTE: 18 U.S.C. § 3613(a), the federal statute governing liens arising from criminal fines and restitution obligations, generally incorporates the exemptions available to individual taxpayers under the Internal Revenue Service Code, 26 U.S.C. § 6334(a).
I claim that the exemption(s) from enforcement which are checked below apply in this case:
___ Wearing apparel and school books.- Such items of wearing apparel and such school books as are necessary for the debtor or for members of his family.
___ Fuel, provisions, furniture, and personal effects.- So much of the fuel, provisions, furniture, and personal effects in the Debtor's household, and of the arms for personal use, livestock, and poultry of the debtor, as does not exceed $9,540 in value.
___ Books and tools of a trade, business, or profession.- So many of the books, and tools necessary for the trade, business, or profession of the debtor as do not exceed in the aggregate $4,770 in value.
___ Unemployment benefits - Any amount payable to an individual with respect to his unemployment (including any portion thereof payable with respect to dependents) under an unemployment compensation law of the United States, of any State, or of the District of Columbia or of the Commonwealth of Puerto Rico.
___ Undelivered mail - Mail, addressed to any person, which has not been delivered to the addressee.
___ Certain annuity and pension payments - Annuity or pension payments under the Railroad Retirement Act, benefits under the Railroad Unemployment Insurance Act, special pension payments received by a person whose name has been entered on the Army, Navy, Air Force, and Coast Guard Medal of Honor roll (38 U.S.C. 1562), and annuities based on retired or retainer pay under Chapter 73 of Title 10 of United States Code.
___ Workmen's Compensation - Any amount payable with respect to compensation (including any portion thereof payable with respect to dependents) under a workmen's compensation law of the United States, any State, the District of Columbia, or the Commonwealth of Puerto Rico.
___ Judgments for support of minor children - If the debtor is required by judgment of a court of competent jurisdiction, entered prior to the date of levy, to contribute to the support of his minor children, so much of his salary, wages, or other income as is necessary to comply with such judgment.
___ Certain service-connected disability payments - Any amount payable to an individual as a service-connected (within the meaning of section 101(16) of Title 38, United States Code) disability benefit under--(A) subchapter II, III, IV, V, or VI of Chapter 11 of such Title 38 or (B) Chapter 13, 21, 23, 31, 32, 34, 35,37, or 39 of such Title 38.
___ Certain public assistance payments - Any amount payable to an individual as a recipient of public assistance under-(A) title IV or title XVI (relating to supplemental security income for the aged, blind, and disabled) of the Social Security Act, or (B) State or local government public assistance or public welfare programs for which eligibility is determined by a needs or income test.
___ Assistance under Job Training Partnership Act - Any amount payable to a participant under the Job Training Partnership Act (29 U.S.C. 1501 et seq.) from funds appropriated pursuant to such Act.
The statements made in this claim of exemption form as to exemption entitlement are made and declared under penalty of perjury that they are true and correct.