United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge
MATTER IS BEFORE THE COURT on Defendant's letter dated
December 27, 2016, which this Court construes as a Motion for
Reconsideration of this Court's Order Granting
Authorization of Payment from Inmate Trust Account
(“Authorization Order”). (Doc. 82). The Government
filed a Response in Opposition to Defendant's Motion for
Reconsideration, (Doc. 83), and Defendant filed a Reply to
the Government's Response, (Doc. 84). For the reasons
stated below, Defendant's Motion for Reconsideration,
(Doc. 82), is DENIED.
2010, a jury found Defendant guilty of kidnapping, in
violation of 18 U.S.C. § 1201(a)(1), and interstate
domestic violence, in violation of 18 U.S.C. §
2261(a)(2), (b)(3). (Doc. 52). As part of his sentence, the
Court ordered Defendant to pay $15, 706.31 in restitution.
(Doc. 62 at 5). The Court ordered that payment of the
restitution obligation was to “begin immediately”
and that if Defendant did not satisfy his restitution
obligation within sixty days of his release from
imprisonment, Defendant was obligated to make $50.00 monthly
payments toward any remaining balance. Id. at 6.
Defendant represents that he has been participating in the
Federal Bureau of Prison's (“BOP”) Inmate
Financial Responsibility Program (“IFRP”) and has
been making quarterly payments “for years.” (Doc.
82 at 1).
Motion for Authorization of Payment from Inmate Trust Account
(“Motion for Authorization”), the Government
represented that Defendant had paid $1, 441.33 toward his
restitution obligation, leaving a balance of $14, 264.98.
(Doc. 80 at 1). At the time of the Government's Motion
for Authorization, Defendant's BOP's inmate trust
account contained $5, 221.38. Id. at 2. The
Government sought an order authorizing the BOP to turn over
$4, 721.00 for purposes of payment toward Defendant's
restitution obligation. Id. On December 12, 2016,
this Court entered the Authorization Order, directing the BOP
to turn over to the Clerk of Court, for partial payment of
Defendant's restitution obligation, the lesser of either
$4, 721.00 or Defendant's inmate trust account balance
less $500.38. (See Doc. 81 at 2). Funds were
subsequently removed from Defendant's inmate trust
account and are currently being held by the Clerk of Court
pending resolution of Defendant's Motion for
Reconsideration. (See Doc. 82 at 2).
argues that reconsideration of the Motion for Authorization
is warranted because he did not receive notice of the
Government's Motion for Authorization. (Doc. 82 at 1).
Furthermore, Defendant makes two arguments in opposition to
the Motion for Authorization. First, Defendant contends that
this Court lacked authority to enter the Authorization Order
in light of his participation in the BOP's IFRP and in
light of the terms of the criminal judgment, which allow him
to make payments following his release from imprisonment.
Id. Second, Defendant argues that the Authorization
Order was improper because he is under general financial
hardship. Id. at 1-2. In response, the Government
argues that Defendant's voluntary participation in IFRP
does not preclude the Government from pursuing other
collection mechanisms to satisfy the restitution obligation.
(Doc. 83 at 3).
deciding whether Defendant is entitled to reconsideration and
relief, the Court finds it necessary to determine whether the
Government has demonstrated proper service of process with
respect to its Motion for Authorization. Under Fed.R.Civ.P.
5, a movant must serve a motion by “mailing it to the
person's last known address[.]” In addition, the
motion must be filed “together with a certificate of
service[.]” Fed.R.Civ.P. 5(d)(1). Generally, service is
complete upon mailing and non-receipt of the information does
not affect the validity of service. See, e.g.,
In re Eagle Bus. Mfg. Inc., 62 F.3d 730, 735 (5th
Cir.1995) (“[T]he question becomes whether the sender
properly mailed the notice and not whether the intended
recipient received it.”). The serving party, however,
has the burden of showing that it completed service.
Christian v. City of Greenville, S.C., 2017 WL
371038, at *6 (D.S.C. Jan. 26, 2017). Furthermore, “[a]
presumption that a document was actually mailed attaches to a
valid certificate of service.” Id.
the Government has failed to show that it properly completed
service of its Motion for Authorization of Payment. Although
the Government filed a Certificate of Service
contemporaneously with its Motion for Authorization, there
was no address listed for Defendant under his name. (Doc. 80
at 6). In its Response in Opposition to
Defendant's Motion for Reconsideration, the Government
contends that the Certificate of Service was
“redacted” and attached an “unredacted
Certificate of Service, ” which it contends was served
on Defendant. (See Doc. 83 at 2; Doc. 83-1).
However, the Government offers no explanation as to why the
Motion for Authorization Certificate of Service was redacted
in its first submission. (See Doc. 83). Furthermore,
the two lines of redaction, by way of “X”s, do
not match the four lines of text in the unredacted
certificate of service, creating doubt regarding whether the
“X”s were the result of redaction or were
temporarily placed on the document as a place holder for
Defendant's address, to be completed upon mailing.
Accordingly, the Court is unable to conclude that the
Government produced a valid certificate of service, and the
Government, therefore, is not entitled to the presumption of
valid service that accompanies the production of a valid
certificate of service. Taking into consideration that
Defendant did not file a response in opposition to the motion
but did promptly move for reconsideration following this
Court's order and given the unfavorable disposition of
the motion as to Defendant, this Court will address the
arguments Defendant raises in his Motion for Reconsideration.
of a prior order is appropriate where “(1) there has
been an intervening change in controlling law; (2) there is
additional evidence that was not previously available; or (3)
the prior decision was based on clear error or would work
manifest injustice.” Akeva, L.L.C. v. Adidas Am.,
Inc., 385 F.Supp.2d 559, 565-66 (M.D. N.C. 2005)
(citations omitted); see also Carolina Internet, Ltd. v.
TW Telecom Holdings, Inc., No. 3:11-310, 2011 WL
4459204, at *1 (W.D. N.C. Sept. 26, 2011) (Mullen, J.);
Stephens v. Wachovia Corp., 2008 WL 1820928 at *2
(W.D. N.C. Apr. 21, 2008) (noting that “the decision
whether to reconsider or modify an interlocutory order is a
matter within the discretion of the Court”). The
Government may enforce a judgment imposing restitution 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(a), (f);
3663(m)(1)(A) (2012). “[A]n order of restitution made
pursuant to [18 U.S.C. § 3663A (2012)] is a lien in
favor of the United States on all property and rights to
property of the person fined as if the liability of the
person fined were a liability for a tax assessed under the
Internal Revenue Code of 1986.” 18 U.S.C. §
3613(c). A defendant ordered to pay restitution pursuant to
18 U.S.C. § 3663A is obligated to satisfy his
restitution obligation “from any source” of money
he receives until the obligation is satisfied. 18 U.S.C.
§ 3664(n) (2012). “Although certain property may
be exempt when claimed by a defendant in a criminal case,
cash is generally not considered exempt.” United
States v. Busack, 2016 WL 1559599, at *1 (N.D. W.Va.
Apr. 18, 2016), aff'd, 670 F.App'x 810 (4th
Cir. 2016) (citing 18 U.S.C. § 3613(a)(1) (citing 26
U.S.C. § 6334(a)(1-10), (12))); see United States v.
Smalls, 2016 WL 6582473, at *1 (W.D. N.C. Nov. 4, 2016)
(granting government's motion to authorize payment from
defendant's inmate trust account); see also Mahers v.
Halford, 76 F.3d 951, 955 (8th Cir. 1996) (finding no
due process violation where money inmate received after
prevailing in 42 U.S.C. § 1983 litigation was applied to
participation in IFRP does not preclude the Government from
using other available collection mechanisms to seek payment
of the monetary penalties under this Court's criminal
judgment. See United States v. Diehl, 848 F.3d 629,
633 (5th Cir. 2017) (holding government could seek collection
of inmate's debt from inmate trust account despite his
participation in IFRP and adherence to IFRP payment
schedule); see also McGhee v. Clark, 166 F.3d 884,
886 (7th Cir. 1999) (holding that BOP's IFRP payment
schedule did not conflict with criminal judgment making
assessment due “in full immediately”).
“[A]lthough inmates may use IFRP as a vehicle for
satisfying unpaid special assessments and fines, a
BOP-created IFRP payment schedule does not supersede the
terms of [the criminal judgment].” Diehl, 848
F.3d at 634.
contrary to Defendant's assertion, this Court does not
“breach” the criminal judgment by granting the
Government's Motion for Authorization. (See Doc.
82 at 1). Indeed, the Schedule of Payments appended to the
criminal judgment provided that payment of the criminal
penalties, including restitution, were “to begin
immediately.” (Doc. 62 at 6). Although the Schedule of
Payments requires Defendant to make minimum installments of
$50.00 per month after his release from custody,
id., that does not preclude the Government from
garnishing non-exempt assets before his release from custody,
see United States v. Blondeau, 2011 WL 6000499, at
*4 (E.D. N.C. Nov. 1, 2011) (“The fact that the Court
allowed any remaining balance owed to be paid over time
through the [IFRP] and, post-release, through installments .
. . does not preclude the government from immediately
collecting restitution from non-exempt assets.”)
(magistrate judge's memorandum & recommendation
adopted by United States v. Blondeau, 2011 WL
6001281 (E.D. N.C. Nov. 30, 2011)); United States v.
James, 312 F.Supp.2d 802, 806-07 (E.D. Va. 2004)
(“While a schedule of $150 per month was put in place
in the event restitution was not paid immediately, the
existence of this schedule does not mean that the government
is precluded from pursuing other avenues of ensuring that
defendant's restitution obligation is satisfied.”).
the Defendant argues that the payment from his inmate trust
account is improper because he is under general financial
hardship. (See Doc. 82 at 2). However, “courts
have held that indigency alone is not a bar to ordering the
payment of restitution.” Busack, 2016 WL
1559599, at *2 (citing United States__ v. Porter, 41
F.3d 68, 71 (2d Cir. 1994); United States v.
Logar, 975 F.2d 958, 962 (3d Cir. 1992); United
States v. Bruchey, 810 F.2d 456, 461 (4th Cir. 1987);
United States v. House, 808 F.2d 508, 510 (7th Cir.