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United States v. Foster

United States District Court, N.D. Texas, Dallas Division

September 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CAROLYN FOSTER, Defendant.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE, UNITED STATES DISTRICT JUDGE

         Before the Court are Defendant Carolyn Foster's Request for Hearing and Motion to Quash the Writ of Garnishment (Docs. 71 & 72), filed August 8, 2019. Foster requests a hearing pursuant to 28 U.S.C. § 3202(d). For the reasons discussed below, the Court GRANTS the motion to quash and to limit the garnishment to 25 percent of the periodic pension payments (Doc. 72). Therefore, the Court will not hold a hearing on the motion to quash and DENIES Defendant's request for a hearing (Doc. 71).[1]

         I. FACTUAL BACKGROUND

         Foster pled guilty to federal program fraud, in violation of 18 U.S.C. § 666. Docs. 22, 28. On March 1, 2018, this Court ordered Foster to pay a special assessment of $100 and restitution of $600, 000 to Grand Prairie Independent School District, as mandated by 18 U.S.C. § 3013 and the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. §§ 3663 A-3664. See Doc. 62, Judgment on Resentencing, (“Judgment”), 6-7.

         Subsequently, the Government served writs of garnishment on garnishees JPMorgan Chase Bank, NA and Teacher Retirement System of Texas (TRS). Docs. 64-66. TRS has custody, control, or possession of a retirement account in Foster's name that has a monthly gross annuity of $4, 905.65, from which it withholds $664.41 in federal income taxes. Doc. 67, TRS's Ans. to Appl. for Writ of Garnishment. JPMorgan Chase does not have any active accounts in Foster's name. Doc. 70, JPMorgan Chase's Ans. to Appl. for Writ of Garnishment.

         Foster responded to the writs of garnishment by requesting a hearing and filing a motion to quash (Docs. 71-72). Foster is proceeding pro se in this matter, and her motion to quash is not clear on the specific grounds on which it rests. Foster's arguments appear to be that (1) the Government cannot garnish Foster's TRS annuity due to the separate criminal judgment ordering restitution; (2) the annuity does not fall under 18 U.S.C. § 3664(n), which the Government argues is an exception to the 25 percent limit on garnishment of earnings set out in 15 U.S.C. § 1673; (3) her financial situation has not changed since the criminal restitution judgment was entered; and (4) she needs the monthly pension in order to provide necessities for her family. Doc. 72, Def.'s Mot. to Quash (“Def.'s Br.”).

         As to the TRS annuity, the Government disputes these arguments and opposes the motion to quash. Doc. 73, Gov't's Obj. to Def.'s Mot. (“Gov.'s Obj.”). Because JPMorgan does not currently hold any assets for Foster, the Government does not object to Foster's motion to quash as to the JPMorgan Chase garnishment. Id.

         II. LEGAL BACKGROUND

         Under 18 U.S.C. § 3556, courts must “order restitution in accordance with section 3663A, and may order restitution in accordance with section 3663.” Under 18 U.S.C. § 3771(a)(6), crime victims have “[t]he right to full and timely restitution as provided in law.” The MVRA requires “that the defendant make restitution to the victim of the offense.” 18 U.S.C. §3663A. In ordering restitution under MVRA, the court “direct[s] the probation officer to collect information regarding the victims and amount of loss, and the defendant's financial situation.” United States v. Roush, 452 F.Supp.2d 676, 678 (N.D. Tex. 2006). The court then determines the victims and amount of loss. Id.; § 3664(e), (f)(1)(A). The Government must demonstrate the amount of loss, and the defendant must “demonstrate financial resources and financial needs of dependents.” Roush, 452 F.Supp.2d at 678; §3664(e). The court then uses this information to “direct the defendant to make a single lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.” Roush, 452 F.Supp.2d at 678; § 3664 (f)(2).

         To ensure defendants make restitution to their victims, the MVRA allows the Government to use “all other available and reasonable means” to collect court-ordered restitution. 18 U.S.C. § 3664(m). One of these available means is 18 U.S.C. 3664(n), which allows the Government to collect restitution from “substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration.”

         III. ANALYSIS

         A. Does the installment payment schedule in the criminal judgment preclude the Government from immediately garnishing Foster's pension?

         The first issue is whether the Government can garnish any portion of the TRS annuity during Foster's incarceration.

         Foster seemingly argues that the installment payment schedule in the criminal judgment, ordered by this Court under the procedures outlined in 18 U.S.C. § 3664, precludes the United States from immediately garnishing her pension in order ...


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