Opinion
CR-01-42-R
06-30-2022
UNITED STATES OF AMERICA, Plaintiff, v. MANH VAN PHAM, Defendant, and INTERBANK, and its successors or assigns, Garnishee.
REPORT AND RECOMMENDATION
GARY M. PURCELL UNITED STATES MAGISTRATE JUDEE.
United States District Judge David L. Russell referred Defendant's Claim of Exemption and Request for Hearing (Doc. No. 23) for appropriate action consistent with 28 U.S.C. § 636(b)(3). The Government has responded. Doc. No. 24. For the reasons set forth below, it is recommended Defendant's Claim of Exemption and Request for Hearing be denied.
I. Procedural History
On May 19, 2022, Judge Russell issued a Post-Judgment Continuing Writ of Garnishment to Garnishee, Interbank, against Defendant, Manh Van Pham. Doc. No. 22. On May 27, 2022, Defendant filed a Claim of Exemption and Request for Hearing. Doc. No. 23. On May 27, 2022, Plaintiff filed an Amended Response to Defendant's Claim of Exemption and Request for Hearing. Doc. No. 24. Plaintiff argues that the exemptions relied on by Defendant are not applicable. Id. at 2. Specifically, Plaintiff contends that the exclusions apply to personal property that do not apply to the bank account(s) at issue. Id.
II. Analysis
The Mandatory Victims Restitution Act, upon which Defendant relies in claiming an exemption, permits the United States to enforce a judgment imposing a fine against all property or rights to property of the person fined, with certain exceptions. 18 U.S.C. § 3613(a). Defendant's Claim for Exemption asserts that the following exemptions from enforcement apply in this case:
• Wearing apparel and school books; and
• Fuel, provisions, furniture, and personal effects;Doc. No. 23 at 1. These categories of property are exempt from enforcement. 18 U.S.C. § 3613(a)(1); 26 U.S.C. § 6334(a)(1), (2). The claimed exemptions, however, do not apply to the property the government seeks to enforce the judgment, i.e., Defendant's "interest in checking accounts, savings accounts, certificates of deposits, individual retirement accounts, and/or other investment accounts” held at Interbank.
Defendant's claimed categories of exemption are inapplicable because they apply to physical property. The wearing apparel and school books exemption applies to “[s]uch items of wearing apparel and such school books as are necessary for the taxpayer or for members of his family[.]” 26 U.S.C. § 6334(a)(1). Similarly, the fuel, provisions, furniture, and personal effects exemption includes “[s]o much of the fuel, provisions, furniture, and personal effects in the taxpayer's household, and of the arms for personal use, livestock, and poultry of the taxpayer, as does not exceed $6,250 in value.” Id. at § 6334(a)(2). The accounts contained in Interbank is not the type of physical property described by these exemptions, and therefore the exemptions do not apply.
A judgment debtor may object to a garnishment and bears the burden of proving the grounds for objection. 28 U.S.C. § 3205(c)(5). Although the statute contemplates that a hearing be held, a court can deny a hearing when appropriate. See United States v. Cooke, No. 99-CR-50089, 2017 WL 4172630, at *4, n.1 (W.D. La. Aug. 31, 2017) (“The court is not obligated to hold a hearing when there are no potentially valid exemptions or objections raised.”), report and recommendation adopted, No. 99-CR-50089, 2017 WL 4171389 (W.D. La. Sept. 19, 2017). Here, it is appropriate to deny Defendant's request for a hearing due to the unlikely nature of any claimed exemption applying to the funds held in the bank account(s).
RECOMMENDATION
Based on the foregoing findings, it is recommended that Defendant's Claim of Exemption and Request for Hearing (Doc. No. 23) be DENIED. Defendant is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by June 23rd , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.