Opinion
Case No. 3:99-CR-79
08-26-2014
UNITED STATES OF AMERICA, Plaintiff, v. TIMOTHY J. STEWART, Defendant.
DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION ENTITLED "PURSUANT TO 18 USCS 3663, 3664" (DOC. #71); OVERRULING DEFENDANT'S MOTION TO SCHEDULE HEARING (DOC. #72)
This matter is currently before the Court on Defendant Timothy J. Stewart's motion entitled "Pursuant to 18 USCS 3663, 3664," (Doc. #71), and his "Motion to Schedule Hearing on 18 U.S.C. § 3663, 3664 and/or Invoke the Pendant Jurisdiction of the Court," (Doc. #72).
Stewart was sentenced on April 25, 2000, for bank robberies committed in May of 1999. He was ordered to pay $2,955.00 to Key Bank, and $3,371.45 to Fifth Third Bank in restitution. Although Stewart's restitution obligation has been paid in full, he has filed a motion challenging the restitution order on several grounds. He asks the Court to hold a hearing, correct the restitution order, and presumably refund some of his money.
First, Stewart questions why the Court ordered him to make restitution at all, given that the Court also found that he was financially unable to pay a fine. This is easily explainable. The Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, requires the Court to order restitution regardless of the defendant's ability to pay. See 18 U.S.C. § 3664(f)(1)(A) (providing that full restitution must be ordered "without consideration of the economic circumstances of the defendant").
Second, Stewart challenges the Government's seizure of his income tax refund for tax year 2009. He correctly notes that, when setting up a payment schedule, the Court must consider the defendant's financial assets and financial obligations. See 18 U.S.C. § 3664(f)(2). When Stewart was released from prison in 2009, he was ordered to pay $20.00 per month toward his restitution obligation. Doc. #49. It appears that he complied with this obligation through January 28, 2010. However, court records show that he fell behind on his restitution payments after being arrested and taken into federal custody on a supervised release violation petition on February 19, 2010. Doc. #55.
Stewart complains that the Government improperly seized his 2009 income tax refund and applied it toward his restitution balance, without taking into consideration whether this would constitute an undue hardship to him or his family. In support of this argument, Stewart cites to United States v. Grant, 715 F.3d 552 (4th Cir. 2013). Grant, however, is factually distinguishable. In that case, the probation officer successfully petitioned the court to add a new special condition to the defendant's probation, requiring her to apply money received from income tax refunds to the outstanding restitution obligation. On appeal, the court found that the district court abused its discretion in increasing defendant's restitution obligation when there was no evidence that there had been a material change in her ability to pay. Id. at 557-58. The court noted that, at the time the court set the initial restitution payment, the defendant had received similar income tax refunds for the past four years. Id. The court concluded that the district court could not order the defendant "to pay this money toward her restitution obligation without considering whether she could do so and still meet her family's financial needs." Id. at 559.
In contrast to Grant, Stewart's probation officer did not seek a court order modifying his restitution obligation. Rather, it appears that, after Stewart fell behind on his payments, the Government used its broad powers to enforce Stewart's restitution obligation. See 18 U.S.C. §§ 3613(a) and (f) (granting the Government authority to enforce restitution orders in accordance with means of enforcing other civil judgments).
One of the tools at the Government's disposal is the Treasury Offset Program ("TOP"). After giving the debtor appropriate notice and an opportunity to dispute the debt, the Department of Justice may certify the debt to the United States Department of Treasury, which has the authority to collect delinquent debts by offsetting any federal disbursements owed to the debtor, including income tax refunds. See 31 U.S.C. § 3716(c); 31 C.F.R. § 285.5(e)(1). A debtor seeking to challenge a TOP referral must exhaust his administrative remedies by presenting evidence to the referring agency, i.e., the Department of Justice, within 60 days of receiving notice of the intent to offset, see 31 U.S.C. § 3720A(b)(2), and must do so prior to seeking judicial relief. See United States v. Beulke, 892 F. Supp. 2d 1176, 1187 (D.S.D. 2012). Here, there is no evidence that Stewart exhausted his administrative remedies; but even if he did, his argument lacks merit. A defendant's financial situation need not be considered prior to enrollment in the TOP. United States v. Campbell, 245 F. App'x 505, 507 (6th Cir. 2007).
Finally, Stewart argues that, although the Court determined that Key Bank was owed only $2,955.00 in restitution, and Fifth Third Bank was owed only $3,371.45 in restitution, court records show that Key Bank was paid $4,002.50, and Fifth Third Bank was paid $4,466.50. He therefore maintains that he has overpaid his restitution order in the amount of $2,242.55. The additional $2,242.55, however, was interest on the restitution, calculated and payable in accordance with 18 U.S.C. § 3612(f). The statute permits the Court, upon a finding that the defendant does not have the ability to pay interest, to waive or limit the interest due. Id. In this case, however, the Court made no such finding in the Judgment, and the Court has no authority to revisit that issue. The interest was therefore properly paid to the victims.
In contrast, the Court did waive the interest requirement for the restitution ordered in connection with Stewart's most recent bank robbery conviction, United States v. Stewart, Case No. 10-cr-172.
For these reasons, the Court OVERRULES Stewart's motion entitled "Pursuant to 18 USCS 3663, 3664." (Doc. #71). Moreover, because Stewart's arguments lack merit, there is no need for a hearing. The Court therefore also OVERRULES Stewart's "Motion to Schedule Hearing on 18 U.S.C. § 3663, 3664 and/or Invoke the Pendant Jurisdiction of the Court." (Doc. #72). Date: August 26, 2014
/s/_________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE