View Full Version : Question about federal restitution


delta
03-07-2005, 09:31 PM
I have served my federal time and also 5 years of supervised release. both were maximum sentences according to the guidelines. I still owe a large amount of restitution. I don't see how it will ever get paid. I pay a small amount monthly but it doesn't even pay the interest on the debt. Am I obligated to provide personal financial date to the US attorney even though I've done all my time? what can they do if I refuse to give them the info they want?

Holly6005
03-08-2005, 12:05 PM
I don't know the answer, but I would also like to know????

jft
03-08-2005, 12:38 PM
They can probably try to sue you for it, other than that I really don't know about after supervised release is complete. They sure can't put you back in for it, I do know that.

delta
03-09-2005, 09:36 PM
Holly6005, do you owe restitution too? how are they trying to collect from you?

shrekney
03-10-2005, 12:54 PM
They already have a judgment against you for the restitution so they can seek to collect the restitution using all of the same means that anyone with a civil judgment could use, meaning they could put a lien on any real property, garnish your wages, attach any bank accounts, etc.

ajap
03-24-2005, 01:45 PM
I think there's a way to file new charges too; you might could end up back in prison NOT on the orginal charge, but on new ones for not paying as court ordered.

I've been out for nine years and I still hire a Tax Lawyer to do my taxes for reasons like this. Remember - this is sort of how they got Al Capone..................

shrekney
03-24-2005, 06:02 PM
No, they won't put you back in jail for not paying your restitution if you are off supervised release. What they will do is they will take you to court and ask for a "debtor's examination", wherein you have to go before a judge and answer their questions as to where your assets are. Those questions will be done under oath and unless you commit perjury or refuse to answer, you will not go to jail. However, they can ask anything about your personal financial situation during the debtor's exam and you MUST answer or you will be held in contempt of court.

skychickFL
03-29-2005, 05:46 PM
In our plea agreement, we have a settlement of restitution...can they come after us for more later????

headman
07-10-2005, 09:48 PM
No, they won't put you back in jail for not paying your restitution if you are off supervised release. What they will do is they will take you to court and ask for a "debtor's examination", wherein you have to go before a judge and answer their questions as to where your assets are. Those questions will be done under oath and unless you commit perjury or refuse to answer, you will not go to jail. However, they can ask anything about your personal financial situation during the debtor's exam and you MUST answer or you will be held in contempt of court.
Has anyone negotiated a settlement with the US Attorney's Office for restitution?

shrekney
07-10-2005, 10:08 PM
Skychick,

No, they cannot come after you for more, just whatever is in the judgment of sentencing plus interest.

offthegrid
09-04-2005, 11:27 PM
From what I have read restitution becomes a 20 year tax lien after supervised release but the protections of USC15 1673 are in effect unlike a true tax lien and the IRS will add a one time admin fee plus interest. My judgement states that I am not liable for interest but whether this holds any weight with the IRS after sr is over I don't know (but would love to). I recently read online a DOJ guideline about collecting after sr and about the only way to avoid it is to leave the country. They simply refer you to customs and wait for you to cross the border. They can also consider the debt uncollectable but it seems you'd have to be completely destitute for that. They also can have trouble collecting from the self employed since they pay their own taxes.

Things I would like to know but no one seems to be able to answer

1-How reasonable is the IRS in setting a payment schedule(in order to avoid needing 15-1673 which means garnishment at 25% of post tax income)

2-The odds if possible of the sentencing judge voiding the order at the end of sr even if the restitution is under mvra

3-Does the judges order of no interest have sway with the IRS

offthegrid
09-05-2005, 03:52 PM
Some interesting reading for those with restitution issues. Sorry if its a little lengthy I pasted it from a defense attorneys website.


I. Introduction

Your client has been convicted of a crime in federal court. He or she has limited income, substantial personal debt and could face civil claims as a result of the conviction. Notwithstanding, the government is seeking restitution. Prior to April 24, 1996, the sentencing judge had discretion to impose a restitution order in light of the defendant’s financial condition and ability to pay. In fact, prior to April 24, 1996, the sentencing judge was required to consider such factors as the defendant’s assets or lack thereof, the number and needs of the defendant’s dependents and the future ability of the defendant to satisfy a restitution obligation. Effective April 24, 1996, however, sentencing judges were stripped of their judicial discretion when it comes to imposing restitution. Restitution became mandatory and, as a result, the issues facing prosecutors and defense attorneys at various stages in the criminal process became more challenging.
The Victim Witness Protection Act ("VWPA"), passed in 1982, provided ample discretion for sentencing judges to determine, on a case-by-case basis, whether and how much restitution to order. Under the Mandatory Victim’s Restitution Act ("MVRA") of 1996, which amended the VWPA, restitution "in the full amount" is now required by law, with judges retaining discretion only over how the restitution payments can be scheduled. Since the MVRA only applies to convictions after April 24, 1996, very few reported decisions have yet interpreted the statute. One significant effect of the MVRA, however, is already clear: prosecutors are instituting aggressive collection efforts which virtually ensure that, after a defendant has endured prison, supervised release and a criminal fine, the government can and will continue to pursue him or her to recover restitution.
Under the MVRA, defense counsel are curtailed in their abilities effectively to prevent or reduce a restitution order. This article explores the two remaining opportunities for defense counsel to shield their clients from restitution orders which could drive them out of business, out of their homes, onto the streets or even back to prison: (i) computing "loss" for restitution purposes; and (ii) challenging aggressive government methods to enforce outstanding restitution obligations. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
Top ("][/URL]II. Computing Restitution: The Importance of Causation
The question which frequently arises in disputes over restitution is whether or not the defendant "caused" the loss in question. In light of the harsh provisions of the MVRA, defense counsel must carefully review the government’s calculation of loss for "causation" and vigorously challenge the computation where the loss is even remotely attenuated to the defendant’s conduct. Since sentencing judges no longer have discretion to order something less than full restitution, the only remaining way for defense counsel to reduce the restitution amount will be to argue that the loss was not "caused" by the defendant’s actions. For example, while the government may deem it appropriate to include in its loss computation for sentencing purposes expenses incurred in its own investigation, defense counsel must be vigilant to exclude such expenses from consideration for restitution purposes.
Prior to 1996, in determining whether to order restitution, sentencing courts considered the amount of loss sustained by each victim as a result of the offense, the financial resources and needs of the defendant and his dependents, and "such other factors as the court deem[ed] appropriate." 18 U.S.C. § 3663(a)(1)(B)(i)(I)-(II). The sentencing judge’s order concerning restitution was reviewed for abuse of discretion only. Now, the sentencing judge is no longer allowed to reduce the order for the defendant’s impecunity and the only effective argument available to defense counsel will be "causation". A. The Sentencing Guidelines Standard of Causation[/B]
A potential source of confusion for courts and practitioners alike is the relationship between the Sentencing Guidelines and restitution. That confusion may arise because the Sentencing Guidelines provide that a defendant’s offense level can be enhanced if he "caused" loss to a victim. See U.S.S.G. §1B1.3. Practitioners must be aware, however, that the method and manner for calculating loss under the Sentencing Guidelines is different from the method and manner for calculating a victim’s "loss" for restitution purposes.
Under the Sentencing Guidelines, points can be added to a defendant’s base offense level for "loss." To justify a "loss enhancement," the government bears the burden of proving by a preponderance of the evidence that such an enhancement is required. See United States v. Sklar, 920 F.2d 107, 112 (1st Cir. 1990) (government must prove facts central to increasing defendant’s offense level); United States v. Rice, 52 F.3d 843, 848 (10th Cir. 1995) (government bears burden to prove amount of loss by preponderance of evidence). The government must establish not only the amount of the loss sustained by the victim, but also that the loss complained of was, at least in part, attributed to or caused by the defendant’s criminal conduct. While the Sentencing Guidelines do require some causal nexus, the standard is not as high as that required to support a restitution order. See U.S.S.G. § 1B1.3(a)(3) (limiting punishment to the harm that "result[s] from" or "was caused" by the defendant’s criminal conduct); see also United States v. Daddona, 34 F.3d 163, 170 (3d Cir. 1994) (reversing district court’s loss calculation absent finding that loss was due to the appellants’ fraud). Unlike restitution, which requires that the loss result directly from the crime of conviction, the loss causation requirement in the Sentencing Guidelines currently allows for some attenuated connections between the offense conduct and the purported loss. The U.S. Sentencing Commission recognizes that confusion exists among judges and practitioners concerning "causation" for sentencing loss purposes, and in its most recent proposed amendments to the Sentencing Guidelines, invited public comment on whether or not the standard for causation in the sentencing context should be a "but for" or a "proximate cause" test.
Nonetheless, the Sentencing Guidelines presently have a broader definition of loss than that allowed for restitution. For example, section 2F1.1 of the Guidelines allows for a loss calculation based on "intended loss." In contrast, restitution may only be ordered for actual loss. See United States v. Cheng, 96 F.3d 654 (2d Cir. 1996). The Sentencing Guidelines also authorize consideration of other types of intangible loss such as "expected" loss associated with fraudulent loan applications and contract procurements and foreseeable consequential damages from that fraud. Where the crime involves some misrepresentation of value, loss for sentencing purposes may be considered to be the difference between the actual value and the representation.
Practitioners must be prepared to dispute the government’s attempt to use the liberal loss calculation standards of the Sentencing Guidelines for purposes of determining restitution. The bar is considerably higher for restitution causation and, given that all defendants will now be saddled with restitution obligations, defense counsel should always urge courts to apply the higher standard of proof described in the next section. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
B. The Restitution Standard of Causation
In United States v. Vaknin, 112 F.3d 579 (1st Cir. 1997), the First Circuit adopted a modified "but for" standard of causation for restitution purposes. The defendant in Vaknin paid bribes to get three loans approved by a corrupt bank official who had solicited the bribes. The defendant defaulted on two of the loans, resulting in a loss to the bank of $900,000. In preparing the pre-sentence report, the federal probation officer suggested that loss to the bank may have been caused by a downturn in the real estate market rather than as a direct result of the defendant’s criminal conduct. The sentencing judge found that the loans would not have been made "but for" the bribes and, consequently, the defendant had "caused" the bank’s loss in the strictest sense. The defendant appealed his $1 million restitution order and the question addressed by the First Circuit on appeal concerned the appropriate standard of causation.
The First Circuit was careful to stress that this issue was one of first impression for the Court as well as a source of considerable confusion in other circuits. The Court considered the VWPA statute itself, its legislative history and interpretive case law before outlining the following two "bedrock principles:" (1) restitution is improper if the loss would have occurred regardless of the defendant’s action, and (2) limitless "but for" causation is not acceptable in determining restitution. The Court held that the:
. . . government must show not only that a particular loss would not have occurred but for the conduct underlying the offense of conviction, but also that the causal nexus between the conduct and the loss is not too attenuated (either factually or temporally). The watchword is reasonableness. A sentencing court should undertake an individualized inquiry; what constitutes sufficient causation can only be determined case by case, in a fact-specific probe.
Vaknin, 112 F.3d at 590. In applying these principles, the First Circuit found that the loans to Vaknin would not have been made "but for" the bribes and that it was reasonable to infer that the losses relating to the loans’ uncollectibility were causally linked to the bribe. As the defendant made no showing of an intervening or unforeseeable event to rebut the inference of causation, the restitution order was upheld. Id.
The First Circuit’s holding in Vaknin interprets the old law, that is the VWPA, not the newer versions of the statute. However, the only change that the MVRA made to the issue of causation concerned the special case of conspiracy. As a result, Vaknin and other reported decisions on the question of causation, it can be argued, are unaffected by the 1996 amendments. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
C. Computing Restitution in Conspiracy Cases
The MVRA incorporated a provision in its causation clause which makes it easier for courts to hold a defendant convicted of conspiracy accountable for the loss caused by the criminal conduct of all co-conspirators. The MVRA specifically broadened the causation element in conspiracy cases to include "harm resulting from the defendant’s criminal conduct in the course of the scheme conspiracy or pattern." 18 U.S.C. §3663(a)(2) (Supp. 1998). As a result, restitution under the MVRA may be ordered for all the "foreseeable" acts of a defendant’s co-conspirators. United States v. Royal, 100 F.3d, 1019, 1032 (1st Cir. 1996).
For a judge to order payment of restitution in a conspiracy case, many courts have held that the indictment must specifically define the scheme but not necessarily identify each individual victim of the scheme. See United States v. Henoud, 81 F.3d 484 (4th Cir. 1996) and cases cited therein. In Henoud, the scheme of defrauding local and long-distance telephone service carriers was sufficiently set forth in the indictment but all carriers subsequently found to be victims of the scheme were not – and did not have to be -- named in the indictment to be entitled to restitution.
The increased use of conspiracy as the preferred criminal charge has an insidious relationship to restitution. Since conspiracy is a crime for which restitution can be ordered, the government can bootstrap a restitution order onto a crime which otherwise would not require restitution. See United States v. Minneman, 143 F.3d 274 (7th Cir. 1998). In Minneman, the defendant was convicted of conspiracy to impede the Internal Revenue Service in violation of 18 U.S.C. § 371. Since the restitution statutes apply to Title 18 offenses but not Title 26 tax-related offenses, the government was able to obtain a restitution order for a violation which otherwise would be subject to an arduous collection process. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
D. Computing Restitution for Convictions Prior to April 24, 1996
Some history might be helpful, since the factors which formerly influenced a court’s decision as to restitution are still persuasive as to how a court may structure repayment. This law is also applicable for appeals from convictions prior to April 24, 1996.
For cases involving convictions prior to April 24, 1996, the old rules of computing restitution apply. Under these rules, the sentencing judge enjoyed a great deal of discretion in imposing restitution but was required to consider several "mandatory" factors in fashioning an appropriate order. As a general rule, the court considered the loss to the victim, the defendant’s ability to pay and the financial needs of the defendant and his or her dependents. See United States v. Trigg, 119 F.3d 493 (7th Cir. 1997). The failure of a sentencing judge to consider all the mandatory factors – while permitting unfettered discretion in weighing those factors – constituted reversible error. See generally, United States v. Giwah, 84 F.3d 109 (2d Cir. 1996); United States v. Turcks, 41 F.3d 893 (3d Cir. 1994).
Prior to April, 1996, the court considered the defendant’s ability to satisfy restitution within five years of the date of sentencing. See United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996). Under the MVRA, however, the defendant’s ability to pay – whether within five years of sentencing or not – is no longer a valid consideration. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
E. Examples of Costs to be Challenged in Computing Restitution
In recommending or challenging a restitution order, practitioners should keep in mind the following laundry list of costs appropriately included in and excluded from restitution orders:


The amount of restitution cannot include attorney’s fees expended by a victim’s estate. See Government of Virgin Islands v. Davis, 43 F.3d 41 (3d Cir. 1994). However, lost pre-judgment interest is appropriately included in the restriction computation. Id.


Expenses incurred by a victim for "accounting fees and costs to reconstruct bank statements for the time period that the defendant perpetuated his criminal scheme, temporary employees hired by the company to reconstruct the monthly bank statements, and costs incurred by the company to replace the stolen funds" cannot be included in the restitution amount. United States v. Schinnell, 80 F.3d 1064 (5th Cir. 1996). Orders of restitution should be limited to either the return of property or the value of the stolen property. Id.


A decline in property value after the defendant’s conviction shall not be considered for purposes of reducing a restitution amount. See United States v. Holley, 23 F.3d 902 (5th Cir. 1994).


Loss is determined by looking to the victim, not the defendant. Although gain to defendant is proof of fraud, if there is no loss to the victim it cannot be the grounds for restitution. See United States v. Jimenez, 77 F.3d 95 (5th Cir. 1996).


Where Congress specifies in the criminal statute that restitution is mandatory, the general rules pertaining to restitution in pre-1996 cases do not apply. See United States v. Hayes, 135 F.3d 133 (2d Cir. 1988) (where crime that defendant committed, violation of Violence Against Women Act, carried mandatory restitution for "the full amount of the victim’s losses", Congressional intent controls). Since the passage of the MVRA, many more crimes fall under this rule.


Generally speaking, investigation and prosecution costs are not properly included in a restitution calculation. See United States v. Menza, 137 F.3d 533, 539 (7th Cir. 1998). However, a court order requiring restitution to the FBI for the costs for relocating a witness and victim of extortion has been upheld. See United States v. Malpeso, 126 F.3d 92 (2d Cir. 1997). In Malpreso, the Second Circuit reasoned that the since the victim would have been eligible for restitution for moving expenses incidental to his participation in the investigation, and any other person who paid these expenses was eligible for reimbursement, then the FBI was eligible. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)F. Who Is A Victim?
"An order of restitution, pursuant to 18 U.S.C. § 3556, does not create any right of action against the United States by the person to whom restitution is ordered to be paid." 18 U.S.C. § 3612(c). Section 3556 is merely the authorizing statute, directing courts to follow sections 3663, 3663A and 3664, which codified the VWPA as amended by the MVRA.
A willing participant in a criminal scheme can still be a "victim" for purposes of restitution. In Sanga, the defendant pleaded guilty to smuggling illegal aliens into the country and unlawful procurement of citizenship. Id. The "victim" of the crime was determined to be one of the illegal aliens who had willingly participated in the conspiracy to smuggle herself into the country. Once in the country, the illegal alien was forced by the defendant to be his live-in maid for nearly two years at substandard wages. At the moment, the illegal alien became a victim of the very conspiracy in which she participated and, as such, was entitled to restitution.
There is a difference between being a person with a potential civil case against the defendant and being a "victim" for the purposes of restitution. This is especially confusing given that restitution is still proper even where the victim has a civil suit against the defendant. In one case, where the defendant doctor was convicted of submitting inflated claims for phony work performed on his clients, a patient who may have had a civil claim against the doctor for the
over-prescription of pain killers was not entitled to restitution. See United States v. Kones, 77 F.3d 66 (3d Cir. 1996). A court ordering restitution is not required or authorized to evaluate each and every civil claim which might arise from the actions at issue in the case. Id. Rather, the court should be concerned primarily with the victims of the crime as proved in the trial. Id.
A governmental entity which voluntarily pays for contraband during an investigation is not a victim. United States v. Cottman, 142 F.3d 160 (3d Cir. 1998); United States v. Salcedo-Lopez, 907 F.2d 97 (9th Cir. 1990). However, a governmental entity which paid benefits to a defendant as a result of the defendant’s fraudulent scheme is a victim. See United States v. Ruffen, 780 F.2d 1493 (9th Cir. 1986).
The identity of the victim can change without affecting restitution, as long as the new party stands in the shoes of the original victim. For example, in a case where the bank was declared to be a victim and the bank was subsequently placed in receivership by the FDIC, a restitution order in favor of the FDIC was appropriate. See United States v. Phaneuf, 91 F.3d 255 (1st Cir. 1996).
Where a defendant is charged with crimes involving more than one victim and a plea agreement results in a guilty plea to only some of the counts charged, defense counsel must be aware of the effect of the plea agreement on restitution. At common law, since restitution could only be ordered for the victims who were harmed by the "offense of conviction," if a plea agreement was such that the defendant only pleaded guilty to counts naming some of the victims, restitution could only be ordered for those named victims. See Hughey v. United States, 110 S.Ct. 1979 (1990). In Hughey, the U.S. Supreme Court limited restitution to the victim of the single offense set forth in a plea agreement notwithstanding evidence that the defendant engaged in other criminal acts not specified in the plea agreement for which there were other victims. Id.
The Supreme Court’s decision in Hughey did not address the situation where the plea agreement expressly states that the defendant shall make restitution for crimes to which he or she is not pleading guilty. Section 3663(a)(3) provides that: "[t]he court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement." The seemingly conflicting principles of section 3663 and common law were reconciled in United States v. Domincio, 765 F.Supp. 1259 (E.D. Va. 1991), where the court concluded that the sentencing judge should first look at the plea agreement and determine the amount of restitution reflected therein and then look at the offense of conviction to determine if there are any additional victims for which restitution should be ordered.
The court in Domincio addressed a case in which the defendant pleaded guilty only to one count, but the plea agreement provided that the court could order restitution for victims of uncharged offenses. At sentencing, the defendant argued that the plea agreement violated the U.S. Supreme Court’s decision in Hughey. The district court disagreed and distinguished the two situations by pointing out that Hughey’s counsel specifically stated at the sentencing hearing that his plea was only to the one count and the agreement contained no indication to the contrary. In Dominico, the plea agreement expressly allowed for restitution to victims of uncharged conduct. Notwithstanding the distinction, the Domincio court found in favor of the defendant because one of the victims mentioned in the plea agreement sustained no loss. There was no "loss" because the defendant had taken the victim’s money and loaned it to a third party as a mortgage, which the third party was paying off in a timely fashion. Since the payments were going directly to the victim, the victim had no quantifiable loss and would have civil remedies if the third party defaulted. Thus, the lesson of Dominico is: even where issues of causation are conceded in the plea agreement, the government must still be put to the burden of proving "loss."
The Ninth Circuit resolved a similar problem concerning the Federal Probation Act ("FPA") in a slightly different way. Since the FPA contains nearly identical language to the VWPA regarding "causation" and precedents interpreting the FPA have upheld plea agreements which contain restitution for victims not named in the counts of conviction, the Ninth Circuit held those precedents should apply equally to the VWPA. See United States v. Soderling, 970 F.2d 529 (9th Cir. 1992). Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
Top ("]III. Collection of Restitution Judgments
A. Change in the VWPA
In 1996, Congress amended the VWPA to more clearly explain the procedure for issuance and enforcement of restitution orders. Section 3664(m)(1)(A)(i) begins this task by stating that an order for restitution may be enforced "in the manner provided for in subchapter C of chapter 227 and subchapter D of chapter 229 of this title" relating to the enforcement of criminal fines. In addition, section 3664(m)(1)(A)(ii) states that a restitution order may also be enforced "by all other available and reasonable means." Essentially, under the amended statute, the government can treat a restitution order as a civil judgment or a fine, and use the best available methods to try to enforce and collect upon it. B. Converting the Restitution Order into a Civil Judgment[/B]
Depending upon the amount of time which has passed since the order of restitution was imposed and whether the entity seeking to collect is the government or a private entity, the restitution order may first have to be converted to a civil judgment before it is enforceable. For a private entity to collect based upon restitution, the order must be converted to a civil judgment. If the government is the collecting agency, conversion is not necessary.
The government can collect upon a restitution order as it could a fine. This includes using any state debt collection procedures. See United States v. Timilty, 148 F.3d 1 (1st Cir. 1998). In Timilty, the U.S. Attorney’s Office used a state post-judgment enforcement procedure to haul the defendant into court to submit to a financial examination under oath. Id. at 2. The defendant had been convicted of defrauding four different banks and sentenced to restitution of $60,000. In seeking to collect on the order, the government first sought to question the defendant about his financial condition and ability to pay. The defendant filed a motion to dismiss on grounds that the government was required to obtain a civil judgment before it could examine him for purposes of collecting restitution. The district court granted the defendant’s motion and, on appeal, the First Circuit reversed, holding that the government need not convert the restitution order into a civil judgment before it can commence collection. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
C. Treating Restitution Orders As Criminal Fines
Also amended in 1996, 18 U.S.C. § 3613 now allows the government to treat an order of restitution as a fine and enforce the order in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law. 18 U.S.C. § 3613 (Supp. 1998). As a result, the government is able to treat a restitution order as a civil judgment, a tax lien, a debt or a fine, whichever it finds most convenient. Liability under section 3613 extends for 20 years after the entry of judgment or 20 years after release from imprisonment, whichever is later. See 18 U.S.C. § 3613(b).
Section 3613 by reference to state and federal post-judgment enforcement procedures, also authorizes the government to use equitable remedies to attach property of the defendant in anticipation of a judgment. Consequently, recent years have been marked by aggressive actions of the government in restraining assets of the defendant and even family members, business associates and other third parties related to the defendant in anticipation of a judgment. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
D. Federal Debt Collection Procedure Act
For certain "debts owing to the United States" the Federal Debt Collection Procedures Act ("FDCPA") 28 U.S.C. § 3001, et seq., allows the federal government to convert a restitution order into a civil judgment. See United States v. Rostoff, 966 F.Supp. 1275 (D. Mass. 1997), aaf’d, 164F. 3d 63 (1st Cir. 1999).
The Rostoff court held that in passing the FDCPA, Congress intended to create a "holistic, unitary, and simple approach to collecting debts due the United States, including restitutionary debts arising under the Victim and Witness Protection Act."
The Rostoff court outlined its view of the procedure which should be followed by the government to recover a judgment. The statute authorizes the courts to require the offender to disclose all assets to the probation office, direct the sale of the assets, or order that the assets be paid directly into the court or transferred in kind to the victim. If the offender conceals assets from the probation office during his supervised release, the sentencing court can order him back to prison. All of this gives the sentencing court significant leverage to pressure a criminal offender to identify and disgorge assets. Once it becomes evident that that restitution will not be made in full by the end of the supervised release period, the government may take action to convert the restitution order into a civil judgment. Id. This has the effect of turning the United States into an ordinary judgment creditor and provides the defendant with all the protections of civil law.
The Rostoff court sums up its view of how the FDCPA and VWPA should work together as follows:
Congress has wisely passed the debt collection act, which, properly construed, makes it possible for the government, without much expenditure, to file a motion to have the uncollected portion of a restitution order converted into a civil judgment. After civil judgment has entered, it is then up to the United States Attorney’s Office, like any civil litigant, to decide whether it is worth seeking to execute upon the judgment against a defendant with all the protections of the civil law, or whether the judgment is a bad debt to be written off.
Id. at 1280.
The holding in Rostoff is not, however, an opportunity for defendants to attempt to hide their assets until the period of supervised release has ended. As soon as the criminal judgment enters, defendants are under a duty to disclose to the Probation Department all assets and transfers of assets which, after the entry of the restitution order, are as a matter of law null and void. The defendants in Rostoff transferred assets during the period of supervised release. Because the probation officer was overworked, the transfers were not discovered until after the defendants’ periods of supervised release had ended and the threat of re-imprisonment was no longer available to force the defendants to turn over of the transferred assets. The Rostoff decision gives the government two options for enforcing restitution judgments: (1) during the probationary period, the court may resentence the defendant to additional imprisonment if assets are not identified and turned over; and (2) once the probation or supervised release period has expired, the U.S. Attorney’s Office may still enforce the obligation but it is in the same position as any civil litigant seeking to recover. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
E. Who The Government Can Collect From Besides The Defendant
1. "Alter Ego"
The government’s mantra in collection is "find the hidden assets." In the furtherance of this mission, the government will frequently seek discovery and collection of assets from people close to the defendant on the theory that the defendant fraudulently transferred assets or that the third parties, as alter egos, are holding assets rightfully belonging to the defendant.
One example of the alter ego theory is contained in National Gas Pipeline Company of America v. Energy Gathering, Inc., 2 F.3d 1397 (5th Cir. 1993) cert. denied 114 S. Ct. 882 (1994). In that case, a creditor asked the district court to force the defendant’s attorney to reveal all documents relevant to the defendant’s assets. The district court held a hearing where the government demonstrated that the attorney and the debtor were related in the following ways: they had maintained a joint brokerage account; they had shared an interest in a condominium; the debtor had assigned rights in a pipeline to the attorney; the attorney was a trustee for defendant, and the attorney had represented the debtor in his divorce. The district court ordered the attorney to produce every document he had relating to the defendant and to produce his own personal tax returns for the years in question. The attorney refused and was held in contempt of court.
On appeal of the contempt order, the Fifth Circuit held that the district court did not have the broad powers which it sought to assert. The court did have the limited power, in the given circumstances, to require the attorney to turn over records regarding the client’s own financial holdings pursuant to Fed.R.Civ.P. 69(a), but it did not have a broad, inherent power to order non-parties such as the attorney to produce documents relative to his own financial condition:
Potent as it was, however, the bill of discovery could not be used to obtain documents (or other discovery) from someone who was not a party. Thus, although federal courts are vested with certain inherent discovery powers owning to the equitable power of Chancery courts to issue bills of discovery, we conclude that there is no broad, general inherent power to order a non-party beyond the district to produce documents.
Id. at 1409 (internal citations omitted). Thus, the attorney’s personal tax records and financial information were outside the reach of the judgment creditor. To the extent the creditor could show evidence that the attorney was an agent or "alter ego" of the defendant, the court concluded that his personal financial records would be discoverable. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
2. Family Members
Discovery and collection efforts against family members suspected of holding assets of a defendant have also become common practice in recent years. In one such case, the defendant was convicted and sentenced to twenty years in prison and a $100,000 fine. See Baldwin v. United States, 805 F.Supp. 1026 (S.D. Fla. 1992). The government filed a lien against his primary residence which he owned with his wife as tenants by the entirety. At the time of the litigation, the home had been sold and the money was in escrow. The question before the court was whether enforcement of criminal fines creates an exception to the general rule that money judgments against one co-tenant are not entitled to lien status as against real property held in tenancy by the entirety. The parties agreed that as to regular judgment creditors, the rule under Florida law was that judgment creditors could not reach the property held in tenancy by the entirety. The government argued, however, that because the fine collection statute made a criminal fine like a tax lien, they should be allowed to seize the house. The government argued by analogy to federal forfeiture statutes that the federal tax collection laws should pre-empt the state law protecting tenancies by the entirety. The court rejected this contention nothing that the fine collection statutes, unlike federal forfeiture statutes, does not have explicit preemption clauses. This is one of the very few cases where the government was unsuccessful.
In United States v. Lampien, 89 F.3d 1316 (7th Cir. 1996), the defendant was ordered to make restitution in the amount of $498,972.94 through monthly payments of $350 and a lump sum payment from the sale of a house. The defendant attempted to disclaim her interest in the house so that it would pass directly to her son and frustrate collection efforts. Under Wisconsin law, the disclaimer was held to be invalid and the court ordered her to execute a quitclaim deed transferring the property directly to the victim. The defendant argued that the state’s homestead law protected her property from the restitution order and in the alternative argued that the order exceeded the court’s discretionary powers under the VWPA. The court disagreed and held that the VWPA pre-empted the Wisconsin homestead law.
The Supreme Court has expressly held that the tax collection law which is incorporated into section 3613(c) allows the government to attach all property of the defendant, including homestead property. United States v. Rodgers, 461 U.S. 677, 691-94 (1983). "The incorporation of § 7403 of the Internal Revenue Code into 18 U.S.C. § 3613(c) thus reiterates the basic premise of section 3613(a), which, when read in conjunction with section 3663(h)(1)(A), provides that upon the district court’s entry of a valid restitution order, a lien against all property belonging to the defendant arises in favor of the United States, and is enforceable to the full extent necessary to satisfy the defendant’s restitution obligation." United States v. Lampien, 89 F.3d 1316, 1320 (7th Cir. 1996). The Seventh Circuit goes on to say that a "state law that exempts any property belonging to a defendant from execution to satisfy a restitution order is in conflict with the enforcement provisions of the federal statute." Id. at 1321.
Lampien and Baldwin are consistent with each other. In Lampien, the court held that the VWPA applies to all property of the defendant whereas in Baldwin the court was saying that state law regarding the protection of innocent third parties from collection efforts should be honored by federal law unless that federal law had a specific preemption clause. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
F. Collection By Victims As Private Parties
Victims who are named in a restitution order can petition the clerk of court to issue an "abstract of judgment." This abstract, once properly recorded in the state where the district court which issued the judgment sits, serves as a lien on all property of the defendant in that state as though it was a judgment in the court of general jurisdiction in that state. See 18 U.S.C. § 3664(m)(1)(B). The constitutionality of subsection (m)(1)(B) has been challenged on the grounds that it transforms restitution into a civil suit subject to the Seventh Amendment’s guarantee to a jury trial. See United States v. Dubose, 146 F.3d 1141 (9th Cir. 1998). The Dubose case illustrates the differences between the old and new statutes, and the constitutional questions raised by both. The old statute, as the Timilty case illustrates, provided that a judgment of restitution could be enforced by victims "in the same manner as a judgment in a civil trial." Id. at 1148 n.9. This was generally understood to mean that the United States or a victim named in the order could avail themselves of the "civil judgment enforcement mechanism." Id. (citing United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984)). Defendants in numerous circuits appealed the old WVPA on the grounds that this remedy in civil law violated defendants' right to a jury trial in suits at common law. All circuits disagreed, on the grounds that judges exercised discretion as to the amount of restitution, victims were limited to recovery of certain specified losses, and that restitution comes after an adjudication of guilt.
The defendants in Dubose challenged the constitutionality of the new law, the MVRA. They argued that if the old law had been constitutional by virtue of the judge’s discretion, then removing that discretion removed the constitutionality. The Ninth Circuit disagreed, stating that the judges retained discretion over the schedule of payments, which was sufficient.
Non-victim third parties can still attempt to be paid from the liquidated assets of a defendant, and sometimes can do this successfully. In United States v. Friedman, 143 F.3d 18 (1st Cir. 1998), a creditor of the business owned by defendant’s family claimed to have its debt secured by an interest in property which the defendant sold to pay restitution. Intervening as a secured creditor relying on an earlier ruling by the court, the creditor was able to get paid in the same order as the restitution order. Top (http://www.dwyercollora.com/article.cfm?cmf_id=403#top)
Top ("]IV. Conclusion
With the passage of the MVRA, the areas of possible dispute with the government over orders of restitution have shrunk dramatically. Furthermore, increasingly aggressive prosecutors are pushing for more innovative ways to get money out of defendants and, in some cases, their family members, business associates or other third parties. In order to protect a defendant against exorbitant restitution orders, defense counsel must keep the finding of "loss" as low as possible and vigorously fight inappropriate collection efforts. [URL="http://www.dwyercollora.com/article.cfm?cmf_id=403#top)

Geek
10-10-2005, 12:36 AM
Per discussions with my legal team on this very issue... During supervised release, you must pay. After supervised release, good luck! You can use every method to dodge the debt that you would have available for any other type of debt. It becomes a civil matter.

offthegrid
10-15-2005, 03:32 PM
I hope you're right. http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title3/12musa.htm#3-12.510 These people may be so swamped that they can't get after everybody. It's their choice to turn restitution into a tax lien with the fdca protections though and federal tax liens can be difficult to avoid unless you are a contractor which is something I'll be looking into in a year and a half.

middy girl
12-05-2005, 08:18 AM
The letter I just received from the US DOJ says:
"...Willful failure to pay a fine is a criminal offense, punishable by a maximum of one year in jail and an additional fine of not more than twice the amount you owe or $10,000.00, whichever is greater."

BTW - I was sentenced on 8/15/05. This letter, sent to my attorney, is dated 10/27/05. My lawyer sent it to me on 12/02/05. He claims the letter was actually sent on 11/27 and not 10/27. The letter also states "on the 31st day after the judgement, you will be delinquent. It pymt is not made within 30 days of its due date, your debt becomes delinquent and a 10% penalty will be added. If you do not pay within an additional 90 days, an additional 15% penalty will be added." LOVELY! Like I didn't owe enough money, they are adding penalties!!!

bellisq
12-05-2005, 10:10 AM
fines and restitution have different policies and regs.

txgrannie
02-15-2006, 01:20 PM
I received the same letter back in Nov/Dec from the DOJ. I called them and questioned my court order - 10% of income - no interest. It appears that the person who sent the letter had not bothered to read the court order. I questioned my PO about this letter and she said they send them out all the time and they fail to read the court order. According to her and my attorney - the court order is law. I know at Bryan they could not ask for a dime from me because my court order states - "After incarnation". I still have 21 months on paper and then will probably have to worry about the collection process. I just pray that I can keep up the $350.00 payments.

Martha2
02-15-2006, 06:22 PM
I will be eligable(sp) for SS when I am through with my 5 months in Coleman Camp and 5 month ankle monitor, My question: can I collect my SS if I still owe restitution? If I sell my home do they take restitution from just my half of the profit or both?

txgrannie
02-15-2006, 07:20 PM
The judge will set your restitution payment - normally for a percentage of your monthly income. Mine was 10% and my friend's was 20%. She was drawing her SS before she went in but it stopped while she was in and then started back. She makes a payment every month just like I do. Mine was to be 10% but I was paying more like 30% while I was working and it has not changed back since I have been unemployed. My PO told me that we would talk if I could not make the payment. So far I have been able to but if and when the unemployment runs out that will be a different story. I am paying more than I draw for one week unemployment. You can draw SS while paying back the restitution. As for the sell of your house, they probably would want all of it to pay back the restitution. You would need to ask your PO about it.
One of my friends divorce her husband so that he could remove his 401K and they could not touch it. Since 401K tends to be jointly own, if she had got 1/2 in the divorce they would have taken the percentage she was required to pay. They remarried 2 months after they divorced.

slimchance
06-01-2006, 08:49 PM
exactly what can they attach?
My husband is supposed to start paying restitution when he is done with supervision..10% of gross pay and all during his incarceration the money his company is paying he is to be credited with, since they were tried and convicted together. Can they impose the lein on all our assets before he is to start paying as the court order states? In the mean time even though the company is paying on schedule are my assets still frozen ..meaning I can't touch my savings to live while he is gone and or buy a new car or washing machine ..whatever? Any one know ? thanks much: )

EducatedCon
06-14-2006, 07:01 AM
It has been my experience that fines are often waived or greatly reducted if the offender is broke, but Federal restitution imposed for an offerense after 1996 stays on you for 20 years. Enforcement can be absolute because most state homestead laws do not apply to "debts in favor of the USA" - but as a practical matter the AUSA does not have the time to chase people over a $30 per month obligation, they tend to ignore low income people and forcus their efforts on high income offenders from whom they can collect more money for each hour invested in the collection process.

Leaving the country may work, but unless you have citizenship in another nation, you will not be granted citizenship or given the right to work. Most nations allow felons to visit as a tourist for 90-180 days, but that is about it.

I have also heard reports of offenders and the resitution debts being totally ignored after supervision in some districts, so do not panic.

crelux
01-25-2007, 07:48 PM
sorry to open an old thread... ;)

I have been off of supervised release since 2001. I had a restitution order of about $8,000. The court order says payment of 50 dollars a month and all interest is waived.

Now, i have fallen behind a few times and am currently 500 behind. Once they garnished my wages after I sent in a financial disclosure form. I quit the job and got a different job.

Its now a year and a half later and I got the financial disclosure form they wanted me to fill out and send back. On the top of the form it states the form is voluntary and that i am not required by law to send it back. Even though their letter states they require it to be sent back.

I chose not to send it back and now ive been subpeanaed to go to court and I assume to give the data to a judge.

I don't make all that much money and live alone. What can be done in court? I cant be put in jail can i? They previously docked me 10% interest for being behind even though the court order says no interest..

Would like to know the outcome of some of the previous posters situations...

thanks guys

richard sanders
11-15-2007, 11:07 PM
I was referred to this site by a friend and read with a great deal of interest some of your comments. I have an issue which I wonder whether you can answer or direct me others who've had experience with this particular issue.

In 1999, I accepted a plea in a Fed case involving restitution. As you are very well aware, in 1996 MVRA was legislated into law extending and enhancing the ability of the Feds to collect a restitution debt. It's application is effective except when constitutional issue prohibit its enforcement.

Follow this timetable. My offense was committed in 1992, MVRA passed in 1996, and I was sentenced in 1999.

It is a well established fact that the U.S. Constitution’s prohibitions of ex post facto laws in article 1, section 9 and 10, and similar provisions in state constitutions are intended to ensure that all, persons have notice of the kinds of acts that are prohibited by the criminal law and the punishments that may be imposed for them. Justice Chase of the U.S. Supreme Court set out the classic, four-part, American definition of ex post facto laws in Calder v Bull (1798)… Criminal Prohibitions cannot be expanded retrospectively, and that applies to adjustments to criminal sentencing, where in any law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, as applied to crimes committed before the law’s enactment, if the adjustment works to the disadvantage of the offender affected by it.

My contention is that my restitution ended with the termination of my supervised release per Pre-1996 MVRA law.

Here's some relevant info for that line of reasoning: Now I have done some preliminary research on the issue of the 1996 MVRA legislation, and I believe that I do not have any further financial restitution obligations based on my familiarization with some of the leading cases namely the
1) Joseph case 2) Dover case, 3) Soderling and 4) another successful case from the 1st Circuit Court of Appeals - U.S. v Steven M. Rostoff and David R. Rostoff No 97-1940, (1998), in which the defendants successfully argued that under Section #3663:

1. An Order to pay restitution under former 18 U.S.C. 3663 is limited to the length of the court’s criminal jurisdiction over the defendant.
2. Conversion of an indefinite restitution order into a permanent civil judgment following the conclusion of the criminal proceedings violates the defendant’s
Constitutional Rights.
3. There was no evidence upon which the Judge could find that the defendants had the ability to pay the amounts of restitution ordered from assets owned by
them.
4. That the current 1996 MVRA, 18 U.S.C. 3664 cannot retroactively apply to offenses committed prior to the passage of such act. Section 3663 must be the
Presiding law.

Again, My offense was committed in 1992, the MVRA was passed in 1996, and even though I was sentenced in 1999, the applicable section of the any restitution act applicable to my offense date must be Section 3663, not 3664. I believe I am protected under the applicable constitutional principles governing “ex post facto” provisions.

Do you know someone who's won a case on this issue or some "right on point" relevant case that has been able to showed the Dept of Justice the applicable law?

Thanks Richard

lyndav
11-16-2007, 08:33 AM
Anyone know whether child support is exempt from the "gross income" amount used to determine the monthly restitution payment.
Thanks.
Lyn

frank4351
02-17-2008, 07:42 PM
I was sentanced in 1993 and had resititution as a condistion of my supervised release. The judge did not take into consideration me being able to pay the amount ordered. I paid on theresitituion while on supervised released. Now 10 years later the DJ has gurnished my wages.
As there any thing that I can do? Anyone know a lawyer that works with this.
Thanks

PTO-97580
02-17-2008, 08:21 PM
I believe once off of supervised release the Federal Litigation Unit can collect up to 25% of your income for up to 20 years. At that point it is considered a civil issue rather than criminal and could probably be handled by a tax mitigation specialist.

jft
02-20-2008, 01:49 AM
A fine and restitution are not the same thing though.

jft
02-20-2008, 01:55 AM
Child Support is exempt
They can garnish up to 25% of your income...if child support is already being garnished by at least that amount, they can't garnish anything.

On the pre-1996 thing, check with a lawyer, you may be able to do something. Judges can give more leniency here.

sternbergmd
02-25-2008, 11:43 PM
Has anyone negotiated a settlement with the US Attorney's Office for restitution?
I am working on getting a settlement on 600,000 owed, trying to negotiate a smaller % of that to be paid now rather than paying it over the next 20 years. Have you had any luck with this kind of thing?

mamabb
02-28-2008, 09:51 PM
To make a long story short: My Husband had been convicted of a federal offense in 1995 under VWPA, and served all his time given and 5 years of probation. During that time he paid restitution every month. He finished his probation in 2006.
Our problem is that the US Attorneys office has been forcing him to continue paying "restitution" to them, even though the majority of US circuit courts had said that it violates the Ex Post Facto Clause.
I am trying to fight the US Attorneys on this on my own so far but I am going to need legal help if I have to file anything in court.
My question is, where do we go? What type of attorney do we contact to help? He has tried contacting criminal attorneys that deal with Federal cases, and they told him that they don't deal with this, to contact a debt attorney. The debt attorneys told him "they don't deal with this, go to a criminal attorney". We need help, but don't know where to turn.
Any ideas?

Thanks,
mamabb

onkorules
03-04-2008, 04:18 PM
find a good federal restitution attorney.... they are around but not too many of them. Normally and attorney who use to be a federal presecutor can help.

good luck

AbbysBPMom
03-09-2008, 03:48 AM
Can they attach your SSDI (Social Security Disability) after you are off of SR for either restitution and/or income tax?

Does the % of income apply to earned income, and if so, then that would exclude SSDI?

My restitution total is a little under $400,000. What % of income can I reasonably expect to pay for restitution? for income taxes owed on the restitution?

Under SSDI, my daughter is entitled to receive income. Would the % be based on my SSDI, or on both of our SSDI? What about my spouse's SSDI?

Thanks for your help!!

Martha2
03-10-2008, 09:27 AM
I don't know about SSDI but my Social Security check was what they call "off set" for about 15%. I pay more than agreed each month in addition they have off set my SS check for 15%. My Po was to contact the DOJ to let them know that I agreed to pay more than they asked for. They are still taking the funds out of my SS and I continue to pay the amount I agreed to. I am hoping to settle this before I am off SR.

HGL
03-10-2008, 11:20 AM
Abbby,

Wage Garnishments are calculated on the Gross check amount, minus Federal Tax, SS Tax and Medicare Tax, then they can take the percentage of that. If you have other items deducted from the check, ie state taxes, health care premiums or retirement, they will be deducted from your check after the appropriate garnishment is calculated.

The IRS has first dibs on your money and they can only take 25%, then Child support orders have the next priority and they can take up to 55%, then all other liens come into play (I don't remember the priority of other liens but there is one for each garnishment order)

I'll give an example of the garnishments:
Gross Salary (Income) - $2000
FED W/H (taxes) - $185 (dependent on how you fill out your w-4)
SS Tax & Medicare - $153
Total amount available for garnishment - $ 1662
Garnishment 25% - $415.50
401(K) election - $200.00
Medical Ins - $ 200.00

Net Check = $ 846.50

As to your first question as to whether they can attach it to SSDI, for you they can if you have other forms of income and the IRS and Social Security Administration can tax it as well. If its your only form of income, that is something to ask a tax lawyer about.

I just deal with Payroll at work and have all the payroll laws in front of me.

I hope this all helps.

AbbysBPMom
03-10-2008, 05:45 PM
Oh thank you thank you thank you!!!

curioustoknow
03-11-2008, 09:03 PM
My husband just finished house arrest and after speaking with the probation officer who was monitoring his house arrest, the officer is telling him that the amount he's willing to pay per month is not enough. He told my husband that he has to send a payment by the end of this month eventhough we haven't came to an agreement to what the monthly payment for the fine will be. My question is can he make my husband pay the amount that he (officer) thinks is appropriate. He also is telling us we can't buy a house prior to completing probation is there any way to bypass that.


BY the way, Im glad i found this place. I have a lot of questions that are need of answers.

HGL
03-14-2008, 01:49 PM
I do know that you are not allowed to apply for credit while on probation (supervised release), but if you qualify for a house on your own, then you can buy it, without your husbands credit. You could also petition the court for leniency in that, especially during the housing crisis that is going on, as I am sure there are a lot of people out there who need to do some re-financing.

As to paying the monthly payment, I am at a loss for that one.

PTO-97580
03-14-2008, 05:07 PM
My husband just finished house arrest and after speaking with the probation officer who was monitoring his house arrest, the officer is telling him that the amount he's willing to pay per month is not enough. He told my husband that he has to send a payment by the end of this month eventhough we haven't came to an agreement to what the monthly payment for the fine will be. My question is can he make my husband pay the amount that he (officer) thinks is appropriate. He also is telling us we can't buy a house prior to completing probation is there any way to bypass that.


BY the way, Im glad i found this place. I have a lot of questions that are need of answers.

There is no general restriction that you cant apply for credit while on SR. Now if you owe fines or restitution or had a financial crime, a PO or Judge may put that stipulation on your SR.

As to purchasing a house, I can understand why they wouldnt let him if he owes fines or restitution but once that is paid off, it shouldnt be a problem

Can't Pay
12-04-2008, 08:38 PM
Why don't we all make a New Year's resolution to not pay our restitution ever again in hopes that this will burden their case load and lessen the chances of them collecting?

I owe $750,000.00. Do you think a debt at this high of an amount is more likely to be pursued or less likely because of the amount, my meager income, and the unlikelihood that I will ever be able to pay it? :idea:

July1988
12-17-2008, 10:47 PM
Why don't we all make a New Year's resolution to not pay our restitution ever again in hopes that this will burden their case load and lessen the chances of them collecting?

I owe $750,000.00. Do you think a debt at this high of an amount is more likely to be pursued or less likely because of the amount, my meager income, and the unlikelihood that I will ever be able to pay it? :idea:

Seriously, how are you doing it?
My husband's restitution is $400k and I just don't know how we're going to pay our daily comittments...we have 2 young children (4 & 7). We live from paycheck to paycheck without the restitution....how do people do this and still remain w/ a place to live, food for your family and other basic needs? :confused:

Indygrl
02-07-2009, 12:30 PM
We're in the same boat....we have about 400k in restitution. We want to buy a house...but we're scared to even mess with it.

Does anybody know of any specific lawyers that deal in restitution? I feel like they are jerking our family around and I'm sick of it. My husband has a new PO for his state charge and she called him a few weeks ago and said he's supposed to be making 7k payments EACH month in order to pay off his debt by the time his probation is over with. OR if he doesn't it could be considered a violation of his probation and they could send him back to prison. I'm like COME ON he doesn't even make 7k a month....it's like they want him to go back to doing what he was doing before.......it's absurd.

It's ridiculous....we have no chance at saving anything for our kids college funds...or our retirement. Also his restitution amount was blown up to what he actually owed....and I bet the companies he owes money to isn't getting a dime of this money we send every month.

I wish there was a laymans term book on federal/state restitution.

Zelda50
02-27-2009, 12:25 PM
Re: Fines (different than restitution) -

http://law.onecle.com/uscode/18/3613.html


Note subsection (b):
(b) Termination of Liability. - The liability to pay a fine shall
terminate the later of 20 years from the entry of judgment or 20
years after the release from imprisonment of the person fined, or
upon the death of the individual fined.

arkansas_guy
08-06-2009, 11:55 AM
In 2004 I received my Federal Sentence and will be coming off of Supervised Release in about 4 months. I have got about $100,000 in restitution which I have been paying 10% of my gross wages on each month since my release last year.

My question is this, if I were to declare personal bankruptcy, would that also cover the restitution?

Thanks in advance.

Federal PO
08-06-2009, 05:36 PM
My question is this, if I were to declare personal bankruptcy, would that also cover the restitution?

Thanks in advance.

No

persh
10-27-2009, 12:28 AM
Per discussions with my legal team on this very issue... During supervised release, you must pay. After supervised release, good luck! You can use every method to dodge the debt that you would have available for any other type of debt. It becomes a civil matter.

Lol!!! exactly... However, if they get down to brass tacks, they can force you under contempt proceedings with sanctions (with a both flavors-- a "punitive" version [i.e., "you will go to jail in 72 hours unless you comply..."] or "compensitory" version [i.e., "for every day you do not comply, you will be assessed a fine of $100.00, plus attorney and court costs"]) to get you to cave in...

persh
10-27-2009, 12:35 AM
It has been my experience that fines are often waived or greatly reducted if the offender is broke, but Federal restitution imposed for an offerense after 1996 stays on you for 20 years. Enforcement can be absolute because most state homestead laws do not apply to "debts in favor of the USA" - but as a practical matter the AUSA does not have the time to chase people over a $30 per month obligation, they tend to ignore low income people and forcus their efforts on high income offenders from whom they can collect more money for each hour invested in the collection process.

Leaving the country may work, but unless you have citizenship in another nation, you will not be granted citizenship or given the right to work. Most nations allow felons to visit as a tourist for 90-180 days, but that is about it.

I have also heard reports of offenders and the resitution debts being totally ignored after supervision in some districts, so do not panic.

two cases you might want to read:

63 F3d 407 (5th cir) - Auclair v. Sher
489 F.3d 732 (5th Cir 2007) - United States v. ridgeway

persh
10-27-2009, 12:44 AM
I was referred to this site by a friend and read with a great deal of interest some of your comments. I have an issue which I wonder whether you can answer or direct me others who've had experience with this particular issue.

In 1999, I accepted a plea in a Fed case involving restitution. As you are very well aware, in 1996 MVRA was legislated into law extending and enhancing the ability of the Feds to collect a restitution debt. It's application is effective except when constitutional issue prohibit its enforcement.

Follow this timetable. My offense was committed in 1992, MVRA passed in 1996, and I was sentenced in 1999.

It is a well established fact that the U.S. Constitution’s prohibitions of ex post facto laws in article 1, section 9 and 10, and similar provisions in state constitutions are intended to ensure that all, persons have notice of the kinds of acts that are prohibited by the criminal law and the punishments that may be imposed for them. Justice Chase of the U.S. Supreme Court set out the classic, four-part, American definition of ex post facto laws in Calder v Bull (1798)… Criminal Prohibitions cannot be expanded retrospectively, and that applies to adjustments to criminal sentencing, where in any law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, as applied to crimes committed before the law’s enactment, if the adjustment works to the disadvantage of the offender affected by it.

My contention is that my restitution ended with the termination of my supervised release per Pre-1996 MVRA law.

Here's some relevant info for that line of reasoning: Now I have done some preliminary research on the issue of the 1996 MVRA legislation, and I believe that I do not have any further financial restitution obligations based on my familiarization with some of the leading cases namely the
1) Joseph case 2) Dover case, 3) Soderling and 4) another successful case from the 1st Circuit Court of Appeals - U.S. v Steven M. Rostoff and David R. Rostoff No 97-1940, (1998), in which the defendants successfully argued that under Section #3663:

1. An Order to pay restitution under former 18 U.S.C. 3663 is limited to the length of the court’s criminal jurisdiction over the defendant.
2. Conversion of an indefinite restitution order into a permanent civil judgment following the conclusion of the criminal proceedings violates the defendant’s
Constitutional Rights.
3. There was no evidence upon which the Judge could find that the defendants had the ability to pay the amounts of restitution ordered from assets owned by
them.
4. That the current 1996 MVRA, 18 U.S.C. 3664 cannot retroactively apply to offenses committed prior to the passage of such act. Section 3663 must be the
Presiding law.

Again, My offense was committed in 1992, the MVRA was passed in 1996, and even though I was sentenced in 1999, the applicable section of the any restitution act applicable to my offense date must be Section 3663, not 3664. I believe I am protected under the applicable constitutional principles governing “ex post facto” provisions.

Do you know someone who's won a case on this issue or some "right on point" relevant case that has been able to showed the Dept of Justice the applicable law?

Thanks Richard


grrrrr. I've read every case you cite... (Rostoff is the most interesting) that line of reasoning, however, has been soundly foreclosed by many courts. MVRA changed sentencing procedures ONLY SO--- ex post facto arguments are null and void even if the criminal acts occurred before enactment of the MVRA.

The DATE OF CONVICTION is all that matters... if you plead guilty after April 24, 1996 - you are under MVRA law. I believe I've seen some court trying to parse out the criminal actions that occur before the MVRA passage in difference to those that happen after passage... that is a stretch - but in the 5th Cir (and probably the 4th, 6th, 7th, 10th) - you are out of luck... :(

Also all circuits agree that upon completion of your supervised release, that your restitution obligation does not extinguish, only the sentencing court's ability to use probationary enforcement.

persh
10-27-2009, 12:56 AM
I was sentanced in 1993 and had resititution as a condistion of my supervised release. The judge did not take into consideration me being able to pay the amount ordered. I paid on theresitituion while on supervised released. Now 10 years later the DJ has gurnished my wages.
As there any thing that I can do? Anyone know a lawyer that works with this.
Thanks

if the court did not consider your financial resources in a pre-MVRA sentencing proceeding, then that judge was in "abuse of discretion" and you lawyer should have objected to that. restitution issues cannot be considered as "ineffective" on a 2255 post conviction remedy.

The problem here Frank4351 is that you consented to the government to do this to you. I am in the exact position and I will be damned if the government gets their stinky little hands on my assets and ruin my future - maybe to those people convicted after 1996, but not me :)

persh
10-27-2009, 12:58 AM
A fine and restitution are not the same thing though.

From a brief I prepared:

Though an order of criminal restitution operates as a civil judgment for enforcement purposes, it is not “in and of itself a civil judgment” under the VWPA. Timilty at 4(citing, United States v. Mindel, 80 F.3rd 394, 398 (9th Cir. 1996); United States v. Johnson, 983 F.2d 216, 220 (11th cir. 1993); United States v. Palma, 760 F.2d 475, 479-80 (3rd Cir. 1985); United States v. Brown, 744 F.2d 905, 910 (2nd Cir. 1984)). Likewise, a “restitution order under the VWPA is quite different from a fine or penalty payable to the government,” United States v. Kress, 944 F.2d 155, 159 (3d Cir. 1991).

persh
10-27-2009, 01:05 AM
To make a long story short: My Husband had been convicted of a federal offense in 1995 under VWPA, and served all his time given and 5 years of probation. During that time he paid restitution every month. He finished his probation in 2006.
Our problem is that the US Attorneys office has been forcing him to continue paying "restitution" to them, even though the majority of US circuit courts had said that it violates the Ex Post Facto Clause.
I am trying to fight the US Attorneys on this on my own so far but I am going to need legal help if I have to file anything in court.
My question is, where do we go? What type of attorney do we contact to help? He has tried contacting criminal attorneys that deal with Federal cases, and they told him that they don't deal with this, to contact a debt attorney. The debt attorneys told him "they don't deal with this, go to a criminal attorney". We need help, but don't know where to turn.
Any ideas?

Thanks,
mamabb

In my experience, no lawyers actually practice federal restitution law (very few do) this obscure law is not profitable and simply too byzantine to maneuver. I've been doing this since 1997 for myself and still have problems with some of the lines of reasoning.... If i had a law degree and could practice, I'd pitch my services.... :)

What the U.S. attorney's office is doing is WRONG for those (like myself) who were convicted under pre-MVRA law... I will (to the best of my legal abilities) fight the feds and make new law to that end. I am good at making the government own up to their abuses... :)

I would link up with a criminal post-conviction attorney who is used to technical arguments. lawyers who like "hard to solve puzzles," as Justice Souter mentioned in a concurring opinion of a habeas case, are the ones you will want...

tuneup
10-31-2009, 03:04 PM
My SO recently received a letter and forms, from the Dept. of Justice, asking for financial disclousure. He has not paid restitution since he left supervised parole in 1995, he was told he didn't own any more restitutionwhen he left. Has this happened to anyone else and what's up. Any help would be appreciated.

jon808
11-10-2009, 02:37 AM
In my experience, no lawyers actually practice federal restitution law (very few do) this obscure law is not profitable and simply too byzantine to maneuver. I've been doing this since 1997 for myself and still have problems with some of the lines of reasoning.... If i had a law degree and could practice, I'd pitch my services.... :)

What the U.S. attorney's office is doing is WRONG for those (like myself) who were convicted under pre-MVRA law... I will (to the best of my legal abilities) fight the feds and make new law to that end. I am good at making the government own up to their abuses... :)

I would link up with a criminal post-conviction attorney who is used to technical arguments. lawyers who like "hard to solve puzzles," as Justice Souter mentioned in a concurring opinion of a habeas case, are the ones you will want...


You are absolutely right that no lawyer really practice this area of law. They all want a good size retainer just to start researching.

My case is I'm off SR, and making 20% restitution payment of my net income. The FLU decided to garnish my wage, because I refused to fill out their financial statement request.

Anyway, I don't know if there's anything I can do.

tommil
11-16-2009, 09:20 AM
My man was convicted of a crime that the DOJ made up. Judge gave him 9years, but for the last two years she stopped his time from counting said he will spend the rest of his life in prison unless he pays her US Dollars.

jazzy0619
08-14-2010, 01:59 PM
I want to marry but my future have a problem with my restitution order. He wants to know if he will be liable for it. I was sentenced in 2006 released in 2008 and my probation is over in 2012. I stated that as long as we keep separate finances and we are not joint on anything we should be fine. I do make my monthly payments but he is still worried? So will he be liable if we were to marry?

No, they won't put you back in jail for not paying your restitution if you are off supervised release. What they will do is they will take you to court and ask for a "debtor's examination", wherein you have to go before a judge and answer their questions as to where your assets are. Those questions will be done under oath and unless you commit perjury or refuse to answer, you will not go to jail. However, they can ask anything about your personal financial situation during the debtor's exam and you MUST answer or you will be held in contempt of court.