United States of America v. Cross Nicastro, E-Trade Securities, LLC

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________

UNITED STATES OF AMERICA,

Plaintiff,

v. 5:25-CV-1051 CROSS NICASTRO, (DNH/ML)

Defendant,

and

E-TRADE SECURITIES, LLC,

Garnishee. ____________________________________________

APPEARANCES: OF COUNSEL:

UNITED STATES ATTORNEY MELISSA O’BRIEN Counsel for the Plaintiff ROTHBART, ESQ. 100 South Clinton Street Assistant United States Syracuse, New York 13261-7198 Attorney

CROSS NICASTRO Pro Se Defendant 3720 Southside Road Frankfort, New York 13340

E-TRADE SECURITIES, LLC Garnishee Attention: Maxwell Tomcho 200 Hudson Street Suite 501 Jersey City, New Jersey 07311

MIROSLAV LOVRIC, United States Magistrate Judge REPORT and RECOMMENDATION1

I. INTRODUCTION On October 16, 2012, Defendant Cross Nicastro (“Defendant”) was found guilty by a jury of conspiracy to impede the United States, to violate the Clean Water Act, to violate CERCLA, to obstruct justice, and to commit wire fraud, in violation of 18 U.S.C. § 371. United States v. Nicastro, 5:11-CR-0264 (N.D.N.Y.) (“Crim. Dkt.”), Dkt. No. 191; Dkt. No. 433. On June 30, 2016, the Court issued an amended judgment as to Defendant, which included an order that he pay restitution in the amount of $300,000.00. (Crim. Dkt. No. 433 at 5.) Defendant’s payments were to begin immediately in monthly installments of not less than $200.00. (Crim. Dkt. No. 433 at 6.) The Text Entry accompanying the amended judgment stated that Defendant “shall pay restitution in the amount of $300,000.00 to the victims due immediately.” (Crim. Dkt. No. 433.) Defendant has a remaining balance of approximately $277,891.00. (Dkt. No. 10, Attach. 1.) In this civil action, the United States of America (“Plaintiff” or the “Government”) seeks to

garnish Defendant’s interest in a brokerage account to satisfy his restitution obligation. (Dkt. Nos. 1, 3.) As relevant here, on or about August 22, 2025, Defendant filed an exemption claim and request for hearing. (Dkt. No. 8.) More specifically, Defendant argues that he is in full compliance with the existing restitution order of this court and the Government’s current actions violate the existing order. (Dkt. No. 8 at 3.)

1 This matter was referred to the undersigned for a Report and Recommendation pursuant to N.D.N.Y. L.R. 72.3(f). The Government filed an opposition to Defendant’s objection and hearing request. (Dkt. No. 10.) The Government asserts the following two arguments: (1) Defendant has not set forth any basis, raised any specific objection, or asserted a claim of exempt property that would entitle him to a hearing to contest the writ in this matter as specified in 28 U.S.C. § 3202(d); and (2) in

any event, garnishment of the brokerage account is proper because (a) it is not subject to an exemption, and (b) the payment schedule set forth in the Court’s Amended Judgment did not bar further collection efforts by the Government. (See generally Dkt. No. 10.) On August 27, 2025, the undersigned issued a text order directing the parties to file supplemental briefing on or before September 8, 2025. (Dkt. No. 12.) More specifically, the Court asked the parties to address “what court order required Defendant to make full and complete restitution immediately as opposed to the schedule set forth in the Amended Judgment, which directed that payments begin immediately . . . in monthly installments of not less than $200.00.” (Dkt. No. 12 [citing Crim. Dkt. No. 433 at 6].) On September 8, 2025, the Government filed a letter brief in response to the

undersigned’s text order. (Dkt. No. 13.) The Government’s supplemental briefing asserted the following three arguments: (1) this Court’s text entry accompanying the Amended Judgment set forth that restitution was due immediately; (2) restitution is a statutory lien that automatically attaches notwithstanding any payment schedule; and (3) there has been a material change in Defendant’s economic circumstances and Defendant has failed to notify the United States or this Court pursuant to the stipulated agreement and 18 U.S.C. § 3572(d). (See generally Dkt. No. 13.) To date, Defendant has failed to file any supplemental brief as directed. (See generally docket sheet.) For the reasons that follow, the undersigned recommends that the request for a hearing be denied and a final garnishment order be issued. II. DISCUSSION “The Mandatory Victims Restitution Act [“MVRA”] is one of several federal statutes that

govern federal court orders requiring defendants convicted of certain crimes to pay their victims restitution.” Lagos v. United States, 138 S. Ct. 1684 (2018). Under 18 U.S.C. § 3663A(a)(1) and (c)(1)(B), any offense “in which an identifiable victim or victims has suffered . . . pecuniary loss” must result in a court order that “the defendant make restitution to the victim of the offense.” 18 U.S.C. § 3613(a) allows the Government to enforce a sentence of restitution against “all property or rights to property of the person fined.” To this end, 28 U.S.C. § 3205(a) permits courts to “issue a writ of garnishment against property . . . in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor.” Because these provisions are

“broad,” they indicate “that Congress meant to reach every interest in property” possessed by defendants. United States v. Nat’l Bank of Com., 472 U.S. 713, 719-20 (1985). In effect, “the Government, in seeking garnishment, steps into the defendant’s shoes, ‘acquir[ing] whatever rights [he] himself possesses.’” United States v. Shkreli, 47 F.4th 65, 73 (2d Cir. 2022) (quoting Nat’l Bank of Com., 472 U.S. at 725). In addition, the Fair Debt Collection Procedures Act, 28 U.S.C. § 3001, et seq. (“FDCPA”) provides remedies for the Government to collect a judgment on a debt including restitution and criminal fines. See 28 U.S.C. §§ 3001(a), 3002(3). 28 U.S.C. § 3202 states, (d) Hearing.--By requesting, within 20 days after receiving the notice described in section 3202(b), the court to hold a hearing, the judgment debtor may move to quash the order granting such remedy. The court that issued such order shall hold a hearing on such motion as soon as practicable, or, if so requested by the judgment debtor, within 5 days after receiving the request or as soon thereafter as possible. The issues at such hearing shall be limited— (1) to the probable validity of any claim of exemption by the judgment debtor; (2) to compliance with any statutory requirement for the issuance of the postjudgment remedy granted . . . . 28 U.S.C. § 3202(d). The FDCPA states that a court “shall hold a hearing” upon a debtor’s motion to quash a court’s order granting a writ. 28 U.S.C. § 3202(d). Despite this language, “courts have denied a hearing where the debtor did not object based on one of the issues specified in 28 U.S.C. § 3202(d), where the objection is plainly without merit, or where the objection was simply a matter of statutory interpretation.” United States v. Montijo, 17-CR-0518, 2021 WL 2470507, at *4 (S.D.N.Y. May 19, 2021) (quoting United States v. Miller, 588 F. Supp. 2d 789, 797 (W.D. Mich. 2008)) (denying motion for hearing “[s]ince [the] defendant’s claimed exemptions are inapplicable as a matter of law to the garnishment at issue here, her objections are ‘plainly without merit,’ making an evidentiary hearing unnecessary.”); see also United States v. O’Brien, 851 F. App'x 236, 240 (2d Cir. 2021) (summary order) (affirming denial of a § 3202(d) hearing because the defendant “failed to file any substantive objections to the writ by the deadline set by the district court and because his legal challenge to the garnishment order does not require any factfinding, but rather fails on the merits[.]”); United States v. Jenkins, 15-CV-0018, 2015 WL 5023731, at *5 (N.D.N.Y. Aug. 25, 2015) (Dancks, M.J.) (citation omitted) (“If the judgment debtor fails to ‘set forth a colorable claim’ regarding one of these issues, no hearing is warranted.”). After carefully considering the matter, I recommend that the Court deny Plaintiff’s request for a hearing and issue an appropriate writ of garnishment. First, I find that a hearing is not required because Defendant has not raised a meritorious challenge to the validity of an exemption or to the Government’s compliance with statutory

requirements. More specifically, Defendant has failed to identify one of the bases set forth in 28 U.S.C. § 3202(d) as cause for his objection. Hence, Defendant has not met his statutorily required burden, and I find that denial of the hearing is appropriate. 28 U.S.C. § 3014(b)(2). Second, I find that as set forth by the Government, the brokerage account is not among those items exempt from levy and it is thus, proper to garnish those funds. (Dkt. No. 10 at 6.) Moreover, I reject Defendant’s assertion that because he is “in full compliance with the existing Restitution Order,” the brokerage account may not be garnished. (Dkt. No. 8 at 1.) As the Government sets forth in their Letter, the text entry accompanying the Amended Judgment in the criminal action states that the full restitution amount is due immediately. (Crim. Dkt. No. 433.) In addition, the Amended Judgment itself states that payment is to begin immediately.2

(Crim. Dkt. No. 433 at 6.) The payment plan set forth in the Amended Judgment (Crim. Dkt. No. 433) does not restrict the Government from seeking the garnishment order because the installment payment schedule merely states that Defendant must pay “not less than $200.00” per month. (Crim. Dkt. No. 433 at 6.) Hence, the minimum payment schedule in Defendant’s restitution order is not inconsistent with Defendant’s obligation to pay the restitution amount in full immediately. See

2 However, in the future, to the extent that the Government utilizes form AO 245C for purposes of establishing a schedule of payments, it is encouraged to check box “A,” which reads “In full immediately” for purposes of clarifying that the entire restitution amount is due in full immediately. United States v. Odimegwu, 23-CV-0340, 2023 WL 5016163, at *4 (N.D.N.Y. June 8, 2023) (citing United States v. O’Brien, 851 F. App’x 236, 240-41 (2d Cir. 2001)) (“installment payment plan in criminal judgment did not bar District Court from issuing . . . garnishment order”); see also United States v. Rand, 924 F.3d 140, 143 (5th Cir. 2019) (holding that so long

as the judgment contains nothing to the contrary, the Government may pursue immediate payment). Pursuant to 28 U.S.C. § 3205(c), I find that the requirements of Section 3205 are met and recommend that the Court issue an appropriate writ of garnishment. ACCORDINGLY, it is respectfully RECOMMENDED that Defendant’s motion for a hearing (Dkt. No. 8) be DENIED; and it is further respectfully RECOMMENDED that Court ISSUE an appropriate writ of garnishment; and it is further ORDERED that the Clerk of the Court shall file a copy of this Report and

Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.3

3 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013); FED. R. CIv. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: September !7, 2025 Binghamton, New York

Miroslav Lovric U.S. Magistrate Judge

4 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. FED. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIv. P. 6(a)(1)(C).

2021 WL 2470507 On January 24, 2020, the Government applied to the district Only the Westlaw citation is currently available. judge sitting in Part I of this Court, ex parte, for a writ United States District Court, S.D. New York. of garnishment directed to defendant's employer, the San Diego Unified School District (the School District), to secure UNITED STATES of America, payment from her nonexempt disposable earnings pursuant v. to the Federal Debt Collection Procedures Act (FDCPA), 28 Cristina MONTIJO, Defendant and Judgment Debtor. U.S.C. § 3205(b).1 The writ (Writ) (Dkt. No. 32; Dkt. No. 35-1) was issued on January 29, 2020, directing the School 17-CR-518 (BCM) District to file an answer stating, “whether or not [it had] in [its] possession, custody or control any property owned by Signed 05/19/2021 the debtor, including nonexempt, disposable earnings,” and to retain such property. Writ at 2. On February 13, 2020, the Attorneys and Law Firms Government served the Writ and related papers on the School Catherine Elaine Geddes, Assistant US Attorney, US District and the defendant by mail. (Dkt. No. 36-1.) Included Attorney's Office, New York, NY, for United States of in the service package was a Clerk's Notice of Post-Judgment America. Garnishment (Clerk's Notice) (Dkt. No. 35-2) explaining to the defendant, in substantially the form required by 28 U.S.C. § 3202(b), that “non-exempt earnings are being taken by the United States Government” but that “there are exemptions ORDER under the law that may protect some of this property from BARBARA MOSES, United States Magistrate Judge. being taken by the Government, if you can show that the exemptions apply.” Clerk's Notice at 1-2. A list of potential *1 Now before the Court is a motion by defendant Christina exemptions was attached. Id. at ECF pages 5-6. The Clerk's Montijo (Dkt. No. 33) for (i) a transfer of the pending civil Notice further advised that the defendant could request a garnishment proceeding in this action to the Southern District transfer to the district in which she resided. Id. at 2. of California; and (ii) a hearing to decide the validity of her claims for exemption from garnishment. For the reasons set *2 Perhaps because of the COVID-19 pandemic, no answer forth below, the motion is DENIED. was filed by the School District in 2020, and no garnishment commenced. The Government served the School District again, by email, on March 24, 2021 (Dkt. No. 36-2), and served defendant again, also by email, on April 8, 2021. (Dkt. Background No. 36-3.) On January 17, 2018, Montijo pled guilty in this Court to bank theft in violation of 18 U.S.C. § 2113(b) and agreed to pay a By letter dated April 6, 2021, received by the Clerk of Court total of $333,366 in restitution to her three victims. Montijo on April 12 and filed on April 13, 2021, defendant requested was sentenced to three years of probation, directed to perform a transfer of this action to “the Court in San Diego County ... 100 hours of community service, and ordered to pay 10% to have a hearing about my case[.]” Mot. at 1. She explained, of her gross monthly income toward restitution. Judgment “[D]ue to the health situation in the country, I would prefer (Dkt. 24). Montijo was supervised in the Southern District to have my hearing locally.” Id. Defendant attached a Claim of California, where she resides and is employed. Id. The for Exemption Form in which she checked boxes to indicate Government reports that, during her 36 months of probation, that she believes the following exemptions apply: “Wearing Montijo made only 21 voluntary payments of $794 apiece, apparel and school books,” “[f]uel, provisions, furniture and totaling $16,674, and did not make any voluntary payments personal effects,” and “[b]ooks and tools of a trade, business, after July 2020, although the Government recovered an or profession.” Def. Mot. at ECF page 6. Defendant does not additional $6,629 via the Treasury Offset Program. See Letter otherwise challenge the Writ. dated April 14, 2021 (Gov. Ltr.) (Dkt. No. 38) at 1. In total, the Government reports, Montijo has paid $23,303 in restitution, On April 1, the School District mailed copies of its Answer (Dkt. No. 37) to defendant and to the U.S. Attorney's Office The Answer, which appears to be unsigned, reports that the where the convicted defendant is incarcerated, he is at the School District employs defendant as a teacher and pays her mercy of the court to make it possible for him to attend a monthly wages of $6243.59 after tax deductions and certain requested hearing.”) other voluntary and non-voluntary deductions. Defendant has made no objection to the Answer. *3 Notwithstanding these decisions, many district courts have held – and continue to hold – that transfer is not On April 14, 2021, the Government filed its letter-brief mandatory, even when timely requested, because the FDCPA in opposition to defendant's transfer and hearing requests. also grants district courts the plenary authority to “make an It argues that because defendant “has claimed inapplicable order denying, limiting, conditioning, regulating, extending, exemptions for property neither held by the garnishee nor or modifying the use of any enforcement procedure under sought by the Government, she has not shown any grounds the statute.” 28 U.S.C. § 3013. See, e.g., United States v. for a hearing in either district.” Gov. Ltr. at 2. Green, 2019 WL 2764394, at *2 (D. Kan. July 2, 2019) (quoting United States v. Sethi, 2014 WL 4651649, at *2 (D. Colo. Sept. 18, 2014)) (collecting cases and noting that “the ‘great bulk of authority’ ” has found “that the statutory Analysis language of § 3004(b)(2) permits the district court to deny a The Government's efforts to garnish Montijo's wages are transfer request if the government shows ‘good cause’ for the governed by the FDCPA, which it is entitled to use to collect denial”); United States v. Cranston, 2014 WL 12607710, at *1 unpaid restitution within the criminal case in which the (C.D. Cal. Nov. 21, 2014) (quoting United States v. Gipson, defendant was originally convicted. United States v. Cohan, 714 F. Supp. 2d 571, 576 (N.D. Va. 2010)) (“[T]he majority 798 F.3d 84, 89 (2d. Cir. 2015); United States v. Greebel, of federal courts to address this issue treat ‘the FDCPA's 2021 WL 1518341, at *2 (E.D.N.Y. Apr. 16, 2021). The transfer provision as not mandatory,’ and instead find that FDCPA provides that within 20 days after a judgment debtor it ‘operates to shift the burden from the party requesting receives the prescribed Clerk's Notice, she may request a transfer ... to the party opposing transfer,’ to show good cause hearing, which shall be held “as soon as practicable,” 28 for denying the transfer request.”); United States v. Matthews, U.S.C. § 3202(d), to determine, among other things, “the 793 F. Supp. 2d 72, 75 (D.D.C. 2011) (collecting cases and probable validity of any claim for exemption by the judgment holding that transfer may be denied if “the government has debtor.” 18 U.S.C. § 3202(d)(1). The statute further provides shown good cause to deny the motion”). At least one judge that “[i]f the debtor so requests, within 20 days after receiving of this Court has also held squarely, citing Matthews, that the notice described in section ... 3202(b), the action or “transfer under Section 3004(b)(1) is not mandatory.” Order proceeding in which the writ ... was issued shall be transferred of Garnishment, United States v. O'Brien, No. 11 Cr. 653, Dkt. to the district court for the district in which the debtor resides.” No. 30 (S.D.N.Y. Sept. 27, 2019) (Pitman, M.J.), affirmed on 28 U.S.C. § 3004(b)(2). other grounds, United States v. O'Brien, ––– Fed. App'x ––––, 2021 WL 1051540 (2d Cir. Mar. 19, 2021).2 A. Transfer Like Judge Pitman, I am persuaded that § 3004(b)(2) does Two Circuits have held that a transfer of venue pursuant not deprive this Court of its authority, under § 3013, to vary to § 3004(b)(2) is mandatory if the debtor makes a timely “the use of any enforcement procedure under the statute.” request. United States v. Nash, 175 F.3d 440 (6th Cir.1999); Further, I find that that in this case there is good cause United States v. Peters, 783 F.3d 1361 (11th Cir. 2015). Both for denying the transfer request. First, defendant Montijo is decisions rely on the use of the word “shall” in § 3004(b)(2), not incarcerated. Second, because of the ongoing COVID-19 and further note that the purpose of the transfer provision is pandemic (which the Court assumes is the same “health to make it possible for defendants – especially incarcerated situation” that defendant references in her transfer request), defendants – to attend their FDCPA hearings. Nash, 175 F.3d any necessary hearing could and would be held remotely, at 443 (“In the interest of justice, courts want to provide eliminating the risks and inconvenience of travel. Third, for criminal defendants with the opportunity for a hearing and the reasons discussed below, Montijo is not entitled to a do not want to impose an inconvenience or undue financial hearing. The Court therefore declines to transfer all or any hardship on them by requiring that they ... travel far distances portion of this action to the Southern District of California. hearing’ at the debtor's request, courts have denied a hearing B. Hearing where the debtor did not object based on one of the issues Defendant seeks a hearing to determine “the probable specified in 28 U.S.C. § 3202(d), where the objection is validity” of her claims of exemption from garnishment. 28 plainly without merit, or where the objection was simply a U.S.C § 3202(d)(1). This is one of the “two narrow grounds” matter of statutory interpretation.” United States v. Miller, 588 that a court may consider at such a hearing. United States v. F. Supp. 2d 789, 797 (W.D. Mich. 2008) (collecting cases); Shyrock, 2020 WL 5908959, at *1 (D. Kan. Oct. 6, 2020) accord United States v. Melchor, 2121 WL 651020, at *3 (no (quoting United States v. Sanchez, 2018 WL 1155989, at hearing required where defendant “has not raised any viable *2 (M.D. Fla. Feb. 2, 2018), report and recommendation exemption”); United States v. Baxter, 2019 WL 2124219, adopted, 2018 WL 1136608 (M.D. Fla. Mar. 1, 2018)). at *3 (no hearing required where defendant's “challenges The applicable exemptions are set out in “section 6334(a) based on property exemptions fail where none apply to this (1), (2), (3), (4), (5), (6), (7), (8), (10), and (12) of the garnishment”). Since defendant's claimed exemptions are Internal Revenue Code of 1986.” 18 U.S.C. § 3613(a); see inapplicable as a matter of law to the garnishment at issue also United States v. Clark, 990 F.3d 404, 406 (5th Cir. here, her objections are “plainly without merit,” making an 2021) (“The restitution statute borrows these exemptions evidentiary hearing unnecessary. from the federal tax code.”). They are the “sole exemptions available to a criminal debtor.” United States v. Melchor, 2121 WL 651020, at *2 (M.D.N.C. Jan. 25, 2021), report and Conclusion recommendation adopted, 2021 WL 633649 (M.D.N.C. Feb. 18, 2021). “Unless it is reasonably evident that the exemption For the reasons stated above, defendant's motion for a transfer applies, the debtor shall bear the burden of persuasion,” at any of venue and a hearing is DENIED. hearing to determine the validity of the exemption(s) invoked. 28 U.S.C. § 3014(b)(2). The Court notes that the Government has not yet submitted an order of garnishment, nor set forth its calculation as to *4 The items of property described by defendant Montijo the amount to be garnished from defendant's paychecks. The – “[w]earing apparel and school books,” “[f]uel, provisions, Court will conduct a conference on June 9, 2021, at 11:00 furniture and personal effects,” and “[b]ooks and tools of a a.m., to address that issue, via teleconference. The call-in trade, business, or profession” – are exempt from levy. See 26 number is 888-557-8511, and the passcode is 7746387. At U.S.C. § 6634(a)(1)-(3). However, the School District does least three court days prior to the conference, the Government not possess, and the Government does not seek to take, any of shall submit a proposed order of garnishment, with service defendant's clothes, school books, fuel, provisions, furniture, upon defendant. personal effects, or tools of a trade. Rather, the Government proposes to garnish her disposable earnings, which according The Clerk of Court is respectfully directed to mail a copy of to the School District come to $6243.59 per month.3 Thus, this Order to defendant Cristina Montijo at 3811 Chamoune as in United States v. Baxter, defendant's “objection on this Ave., San Diego, CA 92105. basis” must be denied. 2019 WL 2124219, at *1 (W.D. Wash. May 15, 2019); accord United States v. Melchor, 2121 SO ORDERED. WL 651020, at *2 (denying objection where “the Writ of Continuing Garnishment does not seek to garnish any such All Citations items, but instead seeks only a proper share of Defendant's earnings.”) Not Reported in Fed. Supp., 2021 WL 2470507 Footnotes “more than two years after the Court ordered restitution and six months after Montijo stopped making voluntary payments.” Gov. Ltr. at 1. This suggests that defendant stopped making voluntary payments after July 2019, not July 2020. The Application stated that the amount due and owing as of January 24, 2020 was $323,045.76. Application at 1. 2 In O'Brien, the judgment debtor appealed the garnishment order, arguing that the district court “erred in denying his motion to transfer because a transfer is mandatory under the FDCPA.” 2021 WL 1051540, at *2 The Second Circuit noted that the issue remains unsettled, but did not decide it, “because O'Brien's transfer motion was untimely.” Id. Defendant Montijo's transfer request also appears to be untimely, in that it was made more than 20 days after she was first served with notice of the garnishment proceeding in 2020. 3 Section 303 of the Consumer Credit Protection Act (CCPA), 15 U.S.C. § 1673(a)(1), provides that “the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed 25 per centum of his disposable earnings for that week.” This limitation applies to collections under the FDCPA. See 18 U.S.C. § 3613(a)(3); United States v. Greebel, 2021 WL 1518341, at *5 n.4. The CCPA defines “earnings” as “compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise[.]” 15 U.S.C. § 1672(a). “Disposable earnings” means “that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.” 15 U.S.C.A. § 1672(b). End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2015 WL 5023731 garnishment fails to set forth a colorable claim regarding one Only the Westlaw citation is currently available. of the three issues identified in 28 U .S.C. § 3205(c)(5), the United States District Court, Court need not hold a hearing with regard to the objection; (2) N.D. New York. here, because Defendant does not (in his written objections to the writ of garnishment) set forth a colorable claim regarding UNITED STATES of America, Plaintiff, one of the three issues identified in 28 U.S.C. § 3205(c) (5), v. he is not entitled to a hearing and his objection should be Joseph JENKINS, Defendant. overruled; and (3) while Plaintiff never moved in the district court for a stay of enforcement of the judgment of conviction No. 6:15–CV–0018 (GTS/TWD). pending appeal, he did subsequently make two such requests in the Second Circuit (which have not yet been decided), Signed Aug. 25, 2015. and the Report–Recommendation expresses no opinion on whether or not this Court would have jurisdiction to consider Attorneys and Law Firms such a motion now. (Dkt. No. 13.) Hon. Richard S. Hartunian, U.S. Attorney for the Northern Generally, in his Objections to the Report–Recommendation, District of New York, William F. Larkin, Esq., Assistant U.S. Defendant asserts the following three arguments: (1) the Attorney, of Counsel, Syracuse, NY, for the United States. United States did not possess jurisdiction to enter a criminal Joseph Jenkins, Oriskany, NY, pro se. judgment against him because there was pending, at the time, a previously filed criminal proceeding in a Canadian court; (2) the appeal that Defendant filed on November 18, 2014, from the criminal judgment issued on that same date deprives DECISION and ORDER the Court of jurisdiction over the United States' application GLENN T. SUDDABY, District Judge. for a writ of garnishment filed on January 6, 2015, which is intended to satisfy that judgment; and (3) the standard for an *1 Currently before the Court, in this application for a injunction is satisfied because he is likely to prevail on the writ of garnishment under 28 U.S.C. § 3205(b)(1), are merits of his case (for the first reason set forth above), and Defendant's objection to the writ of garnishment, United there exist sufficiently serious questions going to the merits States Magistrate Judge Thérèse Wiley Dancks' Report– to make them a fair ground for litigation, taken together with Recommendation recommending that the Court overrule a balance of hardships tipping decidedly toward him (because Defendant's objection to the writ of garnishment, and the retirement funds that are sought to be garnished are not Defendant's Objections to that Report–Recommendation. connected to any alleged wrongdoing and are needed by him (Dkt.Nos.13, 14.) For the reasons set forth below, the Report– to retain the counsel of his choice). (Dkt. No. 14.) In addition, Recommendation is accepted, and Defendant's objection to Defendant attempts to adduce a supporting “affidavit” that the writ of garnishment is overruled. asserts, inter alia, that the public defender representing him at trial “neglected” to file a motion for a stay of the enforcement of the judgment against him. (Dkt. No. 14, at 7, ¶ 4.) I. RELEVANT BACKGROUND Because Magistrate Judge Dancks correctly summarized the factual and procedural history of this action in Part I of her II. STANDARD GOVERNING REVIEW OF A Report–Recommendation and the parties do not object to REPORT–RECOMMENDATION that summary, the Court will not recite that information in *2 When a specific objection is made to a portion of a this Decision and Order, which is intended primarily for the magistrate judge's report-recommendation, the Court subjects review of the parties; rather, the Court will respectfully refer that portion of the report-recommendation to a de novo the reader to Part I of the Report–Recommendation. (Dkt. No. review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To 13, at 2–3.) be “specific,” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, Generally, in her Report–Recommendation, Magistrate Judge or report to which it has an objection and [2] the basis for such a de novo review, “[t]he judge may ... receive further accepts and adopts the findings and conclusions rendered by evidence....” 28 U.S.C. § 636(b)(1). However, a district court Magistrate Judge Dancks for the reasons stated in her Report– will ordinarily refuse to consider evidentiary material that Recommendation. To those reasons, the Court adds only three could have been, but was not, presented to the magistrate points. judge in the first instance.2 Similarly, a district court will First, in his Objections, Defendant does not set forth ordinarily refuse to consider argument that could have been, any specific objection to a portion of a Magistrate Judge but was not, presented to the magistrate judge in the first Dancks' Report–Recommendation. Moreover, Defendant's instance. See Zhao v. State Univ. of N.Y., 04–CV–0210, deprivation-of-jurisdiction argument could have been, but 2011 WL 3610717, at *1 (E.D.N.Y. Aug.15, 2011) (“[I]t is was not, presented to Magistrate Judge Dancks in the first established law that a district judge will not consider new instance. (Compare Dkt. No. 14, at 2–3 [Objection to Report– arguments raised in objections to a magistrate judge's report Recommendation] with Dkt. No. 7 [Objection to Writ of and recommendation that could have been raised before the Garnishment].) As a result, the Magistrate Judge Dancks' magistrate but were not.”) (internal quotation marks and Report–Recommendation need be subjected to only a clear- citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312– error review, which it easily survives. 13 (W.D.N.Y.2009) (“In this circuit, it is established law that a district judge will not consider new arguments raised in Second, Defendant's attempt to adduce an affidavit during the objections to a magistrate judge's report and recommendation Objection phase of this proceeding fails for two alternative that could have been raised before the magistrate but were reasons: (a) as an initial matter, his “affidavit” is neither not.”) (internal quotation marks omitted). notarized nor verified pursuant to 28 U.S.C. § 1746; and (b) in any event, he has not shown that the “affidavit” could not When only a general objection is made to a portion of a have been presented to Magistrate Judge Dancks before she magistrate judge's report-recommendation, the Court subjects issued her Report–Recommendation (see, supra, Part II of that portion of the report-recommendation to only a clear this Decision and Order). error review. Fed.R.Civ.P. 72(b)(2),(3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown Third, even if the Court were to subject Magistrate Judge v. Peters, 95–CV–1641, 1997 WL 599355, at *2–3 (N.D.N.Y. Dancks' Report–Recommendation to de novo review (which Sept.22, 1997) (Pooler, J.) [collecting cases], aff'd without it declines to do, as a threshold matter), it would find that the opinion, 175 F.3d 1007 (2d Cir.1999). Similarly, when an Report–Recommendation survives that review. In support of objection merely reiterates the same arguments made by his argument that the Court has been deprived of jurisdiction, the objecting party in its original papers submitted to the Plaintiff appears to rely on Griggs v. Provident Consumer magistrate judge, the Court subjects that portion of the report- Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 recommendation challenged by those arguments to only a (1982), wherein the Supreme Court stated that “the filing of clear error review.3 Finally, when no objection is made to a a notice of appeal is an event of jurisdictional significance- portion of a report-recommendation, the Court subjects that it confers jurisdiction on the court of appeals and divests the portion of the report-recommendation to only a clear error district court of its control over those aspects of the case review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 involved in the appeal.” (Dkt. No. 14, at 2–3.) In Griggs, the Addition. When performing such a “clear error” review, “the Supreme Court was addressing only the general rule. See, court need only satisfy itself that there is no clear error on the e.g., Lindsey v. Clark, 12–CV–0923, 2014 WL 5817010, at face of the record in order to accept the recommendation.” *2 (W.D.Wis. Nov.10, 2014) (referring to the language from Id.4 Griggs as “the general rule,” and explaining that, “[h]owever, the district court retains jurisdiction over ‘ancillary questions' After conducing the appropriate review, the Court may that are not the matters appealed”). The particular rules in “accept, reject, or modify, in whole or in part, the findings or this circumstance are set forth in Fed. R.App. P. 8(c) and recommendations made by the magistrate judge.” 28 U.S.C. Fed.R.Crim.P. 38(c),(e), which, rather than providing that a § 636(b) (1)(C). district court is automatically deprived of jurisdiction upon the filing of an appeal, provide that a stay of a sentence to pay a fine or restitution pending an appeal may be obtained only in this case).5 As a magistrate judge in the District of North below, I recommend that the Court overrule Defendant's Dakota observed, objections to enforcement of the writ. [T]he federal courts have long held that parties I. FACTUAL AND PROCEDURAL SUMMARY may proceed to execute upon a monetary judgment On February 6, 2014, Defendant was convicted, after a jury notwithstanding a pending appeal of the judgment-a rule trial, of one count of transportation of child pornography and that is applied in both civil and criminal cases.... In one count of possession of child pornography. United States fact, the ability to execute upon a monetary judgment v. Jenkins, Case No. 5:11–CR–0602 (GTS), Dkt. No. 151. On notwithstanding a pending appeal is implicitly recognized November 12, 2014, Defendant was sentenced to a term of by ... Fed.R.Crim.P. 38(c) & (e), which provide civil and imprisonment of 225 months, 25 years of supervised release, criminal judgment debtors, respectively, the opportunity $12,000 in restitution, a $200 special assessment, and a fine to seek a stay of enforcement of the judgment, or other of $40,000. Id. at Text Min. Entry Nov. 12, 2014. Judgment appropriate relief, pending appeal.... The federal courts was entered on November 18, 2014. Id. at Dkt. No. 189. have also long considered execution of a civil or criminal judgment to be an ancillary proceeding such that the Defendant filed a Notice of Appeal on November 18, 2014. district courts are not divested of jurisdiction by the United States v. Jenkins, Case No. 5:11–CR–0602, Dkt. No. filing of an appeal and are free to issue orders in aid 192. He filed the appeal on November 19, 2014, and it was of execution that has not been stayed.... Thus, even if assigned Second Circuit Case No. 14–4295. Kieffer is challenging on appeal the criminal judgment, the entitlement to restitution, and/or the restitution amount, this On January 6, 2015, the United States commenced this court may continue to exercise jurisdiction over collateral civil case by applying for a writ of garnishment against matters not directly involved in the appeal, including, here, Defendant's assets at Ameriprise Financial to satisfy the the issuance of orders with respect to the application for criminal judgment. United States v. Jenkins, No. 6:15–CV– garnishment. 0018, Dkt. No. 1. The Court issued the writ on January 9, *4 United States v. Kieffer, 08–CR–0054, 2010 WL 2015. Id. at Dkt. No. 3. The Clerk notified Defendant of the 2231806, at *3–4 (D.N.D. Apr.28, 2010), adopted by 2010 writ and advised him that he had “a right to ask the court to WL 2231804 (D.N.D. May 28, 2010). return [the] property ... if [he did] not owe the money to the ACCORDINGLY, it is Government that it claims [he did].” Id. at Dkt. No. 4. ORDERED that Magistrate Judge Dancks' Report– On February 9, 2015, Defendant filed an objection to the Recommendation (Dkt. No. 13) is ACCEPTED and writ of garnishment. United States v. Jenkins, No. 6:15–CV– ADOPTED in its entirety; and it is further 0018, Dkt. No. 7. Defendant objected to the government and the Court “attempting to enforce the judgment ... pending ORDERED that Defendant's objection to the writ of outcome of the appeal” and stated that his criminal conviction garnishment (Dkt. No. 7) is OVERRULED. was the result of “sham litigation.” Id. Defendant requested a “(Rule 62(c))1 Injunction pending the appeal of the final judgment and order on case (6:15–CV–0018) against the enforcement of a United States judgment.” Id. REPORT–RECOMMENDATION THÉRÈSE WILEY DANCKS, United States Magistrate Defendant's objection is now before the Court. (Dkt. No. 7.) Judge. The government has responded to the objection. (Dkt. No. 11.) This matter was referred to the undersigned for report and recommendation by the Honorable Glenn T. Suddaby, United States District Judge. (Dkt. No. 12.) The United States has II. ANALYSIS obtained a writ of garnishment against Defendant's assets held *5 Defendant objects to the writ of garnishment. (Dkt. No. by garnishee Ameritrade Financial. (Dkt. No. 3.) Defendant 7.) The party objecting to a writ of garnishment must state hold a hearing within 10 days after the date the request is case does not reflect that he ever moved pursuant to Federal received by the court, or as soon thereafter as is practicable.” Rule of Criminal Procedure 38 for a stay of enforcement Id. of the judgment of conviction pending appeal. United States v. Jenkins, Case No. 5:11–CR–0602. Defendant did make two such requests to the Second Circuit, but the Court of Appeals has not yet acted on those requests. United States The issues at such hearing shall be v. Jenkins, Case No. 14–4205, Dkt. Nos. 24 and 44. The limited-(1) to the probable validity undersigned expresses no opinion on whether or not this of any claim of exemption by the Court would have jurisdiction to consider a Rule 38 motion judgment debtor; (2) to compliance filed in Defendant's criminal case. Compare United States v. with any statutory requirement for the Rodgers, 101 F.3d 247, 251 (2d Cir.1996) (quoting Griggs issuance of the postjudgment remedy v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 granted; and (3) if the judgment is S.Ct. 400, 74 L.Ed.2d 225 (1982)) (“the filing of a notice by default and only to the extent of appeal is an event of jurisdictional significance-it confers that the Constitution or another law jurisdiction on the court of appeals and divests the district of the United States provides a right court of its control over those aspects of the case involved to hearing on the issue, to—(A) the in the appeal”) and Rakovich v. Wade, 834 F.2d 673, 673–74 probable validity of the claim for the (7th Cir.1987) (citing, inter alia, United States v. El–O–Pathic debt which is merged in the judgment; Pharmacy, 192 F.2d 62 (9th Cir.1951)) (trial courts have a and (B) the existence of good cause for long established right “to make orders appropriate to preserve setting aside such judgment. the status quo” while the case is pending in the appellate court). 28 U.S.C. § 3202(d). If the judgment debtor fails to “set forth *6 WHEREFORE, it is hereby a colorable claim” regarding one of these issues, no hearing is warranted. See United States v. Miller, 588 F.Supp.2d 789, RECOMMENDED that the Court overrule Defendant's 804 (W.D.Mich.2008);2 United States v. First Bank & Trust objection (Dkt. No. 7) to the writ of garnishment. of E. Tex., 477 F.Supp.2d 777, 782–83 (E.D.Tex.2007). Pursuant to 28 U.S.C. § 636(b)(1), the parties have Here, Defendant has filed written objections to the writ fourteen days within which to file written objections of garnishment. (Dkt. No. 7.) However, Defendant has to the foregoing report. Such objections shall be filed not set forth a colorable claim entitling him to a hearing. with the Clerk of the Court. FAILURE TO OBJECT Defendant has not asserted that the property is exempt from TO THIS REPORT WITHIN FOURTEEN DAYS WILL garnishment. He has not argued that the government failed PRECLUDE APPELLATE REVIEW. Roldan v. Racette, to comply with any statutory requirement for the issuance 984 F.2d 85 (2d Cir.1993) (citing Small v. Sec'y of Health and of a writ of garnishment. Rather, Defendant argues that the Human Servs., 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b) judgment against him was “obtained under ‘Fraud on Court’ (1); Fed.R.Civ.P. 72, 6(a). doctrine.” (Dkt. No. 7 ¶ 4.) The judgment against Defendant was not obtained by default, so Defendant is not entitled to a hearing on the probable validity of the claim or the existence Filed June 4, 2015. of good cause for setting aside the judgment. Therefore, it is All Citations recommended that the Court overrule Defendant's objection to the writ of garnishment. Not Reported in F.Supp.3d, 2015 WL 5023731 Footnotes 1 See also Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir.2002) (“Although Mario filed objections to the magistrate's report and recommendation, the statement with respect to his Title VII claim was not specific enough to preserve this claim for review. The only reference made to the Title VII claim was one sentence on the last page of his objections, where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’ This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title VII claim.”). 2 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137–38 (2d Cir.1994) (“In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n. 3 (2d Cir.1990) (district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”); cf. U.S. v. Raddatz, 447 U.S. 667, 676, n. 3, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (“We conclude that to construe § 636(b)(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts.”); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary evidentiary hearing is required.”). 3 See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers or arguments does not constitute an adequate objection under either Fed.R.Civ.P. 72(b) or Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly–Rate Emp. Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992) (explaining that court need not consider objections that merely constitute a “rehashing” of the same arguments and positions taken in original papers submitted to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09–CV–0924, 2010 WL 3761902, at *1, n. 1 (N.D.N.Y. Sept.20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue, 07– CV–1077, 2010 WL 2985968, at *3 & n. 3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte v. N.Y.S. Div. of Parole, 04–CV–0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan.18, 2006) (Sharpe, J.). 4 See also Batista v. Walker, 94–CV–2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks and citations omitted). 5 For example, one of these requirements is that, before moving for a stay in the Second Circuit, Defendant has unsuccessfully moved for a stay in this Court or can show that such a motion would have been impracticable. The Court notes that this requirement applies regardless of whether the Court treats the relevant proceeding as civil in nature because that is the proceeding in which enforcement is sought (in which case Fed.R.Crim.P. 8[a][2] would apply) or criminal in nature because that is the proceeding in which an appeal was taken (in which case Fed. R.App. P. 8[c], would refer the Court to Fed.R.Crim.P. 38[c],[e], which would in turn refer the Court back to Fed. R.App. P. 8[a][2] ). 1 Federal Rule of Civil Procedure 62 allows for a stay of enforcement pending appeal of “an interlocutory order or final judgment that grants, dissolves, or denies an injunction.” Fed.R.Civ.P. 62(c). Defendant is not challenging a civil order that grants, dissolves, or denies an injunction. Rather, he is challenging his criminal conviction and sentence. Thus, Rule 62 is inapplicable here. “colorable claim” language appears in the magistrate judge's report and recommendation, available in the second version on Lexis. Only the version with the relevant language is available on Westlaw. End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2023 WL 5016163 with a balance of $330,161.34 (Civil No. 8 at 6). Only the Westlaw citation is currently available. United States District Court, N.D. New York. The government thereafter served, on the defendant and a potentially-interested third-party–plaintiff's estranged wife, UNITED STATES of America, Plaintiff, Ebelechukwu B. Odimegwu–the writ, the garnishee's answer, v. and other required process, including the Clerk's Notice of Anthony I. ODIMEGWU, Defendant, Writ of Continuing Garnishment, which provided instructions The Vanguard Group, Inc., Garnishee, and regarding possible exemptions to garnishment and the right of claimants to file objections and request a hearing. (Civil Ebelechukwu B. Odimegwu, Third-Party Defendant. Dkt. Nos. 1-3, 6-1, 9, 10). On May 5, 2023, third-party Case No. 1:23-CV-340 (TJM/ATB) defendant Ebelechukwu B. Odimegwu (hereinafter “third- party defendant”) filed an objection to the government's writ Signed June 8, 2023 of garnishment directed at Vanguard and a request for hearing to address her objection. (Civil Dkt. No. 12). On May 11, Attorneys and Law Firms 2023, defendant filed a similar objection to the government's writ of garnishment and a request for hearing. (Civil Dkt. No. MELISSA O'BRIEN ROTHBART, Asst. U.S. Attorney, for 11). On May 24, 2023, the government filed a letter brief Plaintiff. requesting that the court reject the objections of the defendant and third-party defendant to the writ of garnishment and deny ANTHONY I. ODIMEGWU, Pro Se Defendant and their requests for a hearing. (Civil Dkt. No. 13). Claimant. EBELECHUKWU B. ODIMEGWU, Pro Se Third-Party This matter has been referred to me for Report and Defendant and Claimant. Recommendation by the Judge McAvoy, Senior U.S. District Judge. (Dkt. No. 17). For the reasons set forth below, this court recommends that Judge McAvoy reject the objections to the writ of garnishment, deny the requests for a hearing, and ORDER and REPORT-RECOMMENDATION issue an Order of Garnishment directing the garnishee to turn ANDREW T. BAXTER, United States Magistrate Judge over to the government funds under Vanguard's control. I. Background1 *1 On April 20, 2017, defendant, Anthony I. Odimegwu II. Applicable Law2 (hereinafter “the defendant”), pleaded guilty to conspiracy The Mandatory Victims Restitution Act, 18 U.S.C. § 3663, to launder monetary instruments, in violation of 18 U.S.C. et seq. (hereinafter “MVRA”) governs sentencing in federal § 1956(h). (Case No. 1:17-CR-62 (hereinafter “Criminal criminal cases. Under the MVRA, the government may Dkt.”), Dkt. No. 23 at 1). On September 10, 2018, Hon. enforce ordered restitution against all property and rights Thomas J. McAvoy, Senior U.S. District Judge, sentenced to property owned by the defendant. See 18 U.S.C. § defendant, ordering him, inter alia, to pay restitution to the 3613(a); 18 U.S.C. §§ 3613(f), 3664(m)(1) (government victims of his crime in the amount of $215,200.00. (Id. at 2-3, enforces restitution in the same manner as a criminal fine). 6). Furthermore, an order of restitution constitutes a lien in favor of the United States against all property and rights to On March 17, 2023, this court granted the government's property of the defendant. See 18 U.S.C. § 3613(c). Section application to issue a writ of garnishment against the 3613 sets forth the procedures for the government to collect defendant's property held by the Vanguard Group, Inc. criminal financial judgments, such as restitution and criminal (hereinafter “Vanguard” or “the garnishee”), as payment fines. That statute authorizes the government to enforce such for defendant's restitution balance. (Case No. 1:23-CV-340 debts in accordance with the practices and procedures under (TJM/ATB) (hereinafter “Civil Dkt.”), Dkt. No. 3). Following federal and state law for the enforcement of a civil judgment. required service of the writ (Civil Dkt. No. 7), Vanguard filed See 18 U.S.C. § 3613(a); 18 U.S.C. §§ 3613(f), 3664(m) its answer on April 7, 2023, stating that it was in possession restitution). Judgments for support of minor *2 The Federal Debt Collection Procedures Act, 28 U.S.C. children.--If the taxpayer is required § 3001, et seq. (hereinafter “FDCPA”), also provides the by judgment of a court of competent exclusive remedies for the government to collect a judgment jurisdiction, entered prior to the date of on a debt, including restitution and criminal fines. See 28 levy, to contribute to the support of his U.S.C. §§ 3001(a), 3002(3). The government may enforce minor children, so much of his salary, restitution through a writ of garnishment under the FDCPA. wages, or other income as is necessary See 28 U.S.C. § 3205(c); United States v. Cohan, 798 F.3d 84, to comply with such judgment. 89 (2d Cir. 2015) (“The government may enforce restitution orders arising from criminal convictions using the practices and [civil] procedures for the enforcement of a civil judgment 26 U.S.C. § 6334(a)(8). under federal or state law as set forth in the [FDCPA]” including garnishment). 28 U.S.C. § 3202 of the FDCPA provides that the defendant in a garnishment action may request a hearing. However, Courts throughout the country, including the Second Circuit, the issues at such a hearing are limited by this statute. In have consistently held that the government is entitled to particular, Section 3202(d) provides, in pertinent part: garnish retirement funds to collect criminal restitution. See, e.g., United States v. Shkreli, 47 F.4th 65, 68 (2d Cir. 2022) By requesting, within 20 days after receiving the notice (“[W]e hold that the MVRA permits the Government to described in section 3202(b), the court to hold a hearing, garnish Greebel's retirement funds to compensate the victims the judgment debtor may move to quash the order granting of his crimes, notwithstanding the Employee Retirement such remedy ... The issues at such hearing shall be limited – Income Security Act of 1974 (“ERISA”)’s anti-alienation provision.”), cert. denied sub nom. Greebel, Evan V. United (1) to the probable validity of any claim of exemption by States, No. 22-583, ––– U.S. ––––, ––– S.Ct. ––––, ––– the judgment debtor; L.Ed.2d ––––, 2023 WL 3696133 (U.S. May 30, 2023); (2) to compliance with any statutory requirement for the United States v. Hotte, No. 97-CR-669, 2007 WL 2891313, issuance of the post-judgment remedy granted; and at *3 (E.D.N.Y. Sept. 28, 2007) (“[C]ourts have repeatedly held that ... provisions of ERISA and the Internal Revenue (3) if the judgment is by default and only to the extent Code ... that generally preclude the assignment or alienation that the Constitution or another law of the United States of pension benefits ... do not apply to the United States in its provides a right to a hearing on the issue, to – efforts to collect on a judgment of restitution” from retirement accounts) (collecting cases). “[T]he Government, in seeking *3 (A) the probable validity of the claim for the debt garnishment, steps into the defendant's shoes, ‘acquir[ing] which is merged in the judgment; and whatever rights the [defendant] himself possesses.’ ” United States v. Shkreli, 47 F.4th at 73 (citing, inter alia, United States (B) the existence of good cause for setting aside such v. Nat'l Bank of Comm., 472 U.S. 713, 725, 105 S.Ct. 2919, judgment. 86 L.Ed.2d 565 (1985)). 28 U.S.C. § 3202. No hearing is required where a party fails to object based on one of the issues specified in 28 18 U.S.C. § 3613(a)(1) lists the types of property that are U.S.C. § 3202(d), “where the objection is plainly without deemed exempt from garnishment for purposes of enforcing merit, or where the objection was simply a matter of statutory restitution. In particular, Section 3613 provides that the interpretation.” United States v. Montijo, No. 17-CR-0518, government may enforce restitution against a defendant's 2021 WL 2470507, at *4 (S.D.N.Y. May 19, 2021) (citations property, except for ten of the thirteen exempt categories omitted); United States v. Jenkins, No. 6:15-CV-0018 (GTS/ listed in the Internal Revenue Code, 26 U.S.C. § 6334(a). The TWD), 2015 WL 5023731, at *5 (N.D.N.Y. Aug. 25, 2015) defendant and third-party defendant claim an exemption from (colorable claim to exemption required for hearing); United garnishment based on only one applicable category, described States v. Reuter, 849 F. App'x 382, 384 (3d Cir. 2021) in the statute as follows: The garnishment statute also provides: defendant and his ex-wife signed the document declaring that they knew and understood the terms of the Judgment. (Civil Dkt. Nos. 11-1 at 9, 12-1 at 18). (7) Disposition order.— After the garnishee files an answer and if *4 Furthermore, the child support exemption does not no hearing is requested within the apply because the objecting parties’ finalized legal separation required time period, the court shall was executed after the criminal restitution judgment was promptly enter an order directing the entered. The defendant's criminal judgment was signed by garnishee as to the disposition of the Judge McAvoy on September 10, 2018, and the Judgment judgment debtor's nonexempt interest of Legal Separation was signed by the parties on April 3, in such property. If a hearing is timely 2019, nearly seven months after the government's lien on the requested, the order shall be entered defendant's property was perfected. (Compare Judgment of within 5 days after the hearing, or as Legal Separation Agreement, Civil Dkt. Nos. 11-1, 12-1 with soon thereafter as is practicable. Judgment, Criminal Dkt. No. 23). As such, the “necessary circumstances [for an exemption] are absent in this particular case ... because [the separation decree] was obtained long 28 U.S.C. § 3205(c)(7). If a hearing request is denied, the after the Restitution Order entered.” United States v. Corso, court may proceed to enter an order directing the garnishee as No. 3:05-CR-105, 2016 WL 3349213, at *5 (D. Conn. June to the disposition of the garnished property. See United States 14, 2016) (stating that only “[j]udgments for support of minor v. Montijo, 2021 WL 2470507, at *4. children ... entered prior to the date of levy” are exempt) (citing 26 U.S.C. 6334(a)(8) and 18 U.S.C. § 3613(a)(1)). III. Analysis The reliance of the defendant and third-party defendant As noted, the only basis for the objections to garnishment on the child support exemption is directly contradicted by in this case is the claim that the exemption for judgments the documentary evidence they submitted and is contrary for support of minor children applies. The defendant and to the explicit statutory, temporal requirements for that third-party defendants have not raised any issues regarding exemption. Thus, they fail to make a colorable claim to an the government's failure to comply with the requirements of allowed exemption to garnishment and do not claim any the garnishment statute, and the government has documented of the other very limited grounds that would warrant a its compliance with those requirements. (United States’ hearing. Accordingly, based on the authority cited above, the Opposition to Objections, at 2-3, 5, Civil Dkt. No. 13). defendant's objections may be overruled without a hearing. The objections of the defendant and third-party defendant The objections note that the defendant has been making his claim that the funds in defendant's retirement account do not minimum restitution payments of $100 per month. (Civil Dkt. belong to him, but instead belongs to his estranged wife and Nos. 11 at 1, 12 at 1; Criminal Dkt. No. 23 at 7). However, five children, as the result of a separation agreement that the existence of this 401(k) retirement account demonstrates stipulated that those funds would be used for the children's that the defendant is not complying with his court-ordered education. (Civil Dkt. Nos. 11 at 1, 12 at 1). However, this restitution obligation. The judgment specifically states that claims is directly refuted by the documents filed in state court “[i]f at any time you have the ability to make full or that both parties submitted as exhibits to their objections. a substantial payment toward restitution, you must do so The Judgment of Legal Separation between the defendant and immediately.” (Criminal Docket, Dkt. No. 23 at 7). See United his ex-wife clearly states that the defendant would maintain States v. O'Brien, 851 F. App'x 236, 240-41 (2d Cir. 2021) ownership of and control over his 401(k) retirement account. (installment payment plan in criminal judgment did not bar (Civil Dkt. Nos. 11-1 at 7, 12-1 at 16). Both the defendant and District Court from issuing lump sum garnishment order). his ex-wife signed this document, attesting to the fact that the respondent (the defendant) would be “awarded [his] share of The defendant has not documented that he lacks the legal community property and community debt as listed below[,]” ability to satisfy his outstanding restitution balance of just with the 401(k) retirement account at issue clearly listed as the under $200,000 (see Dkt. No. 13-1 at 1) through the he has chosen not pay restitution to the victims of his crime to the writ,3 and it is in accordance with the terms of Judge McAvoy's restitution order. Standing in the shoes of the defendant, as the MVRA *5 ORDERED, that the Clerk of the Court serve copies permits, the government may make an election on his behalf of this Report-Recommendation on the defendant and third- to liquidate defendant's retirement account when he is eligible party defendant, by mail to 26062 Bercaw Ct., Moreno Valley, for a distribution, but has not elected to receive one. United CA 92555.4 States v. Shkreli, 47 F.4th at 73. Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days WHEREFORE, based on the findings above, it is within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. RECOMMENDED, that the objections of defendant FAILURE TO OBJECT TO THIS REPORT WITHIN Anthony I. Odimegwu and third-party defendant 14 DAYS WILL PRECLUDE APPELLATE REVIEW. Ebelechukwu B. Odimegwu to the government's writ of Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. garnishment directed at property of the defendant held by Sec'y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); the Vanguard Group, Inc. (Civil Dkt. Nos. 11, 12), be 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). OVERRULED, and the related requests of the defendant and third-party defendant for a hearing (id.) be DENIED, and it is further All Citations Not Reported in Fed. Supp., 2023 WL 5016163 RECOMMENDED, that, if Senior District Judge McAvoy accepts the prior recommendations, he enter a final order to Footnotes 1 The government's letter brief includes a more detailed statement of the background of the matter now before this court. (Case No. 1:23-CV-340, Dkt. No. 13, at 1-3). 2 The statement of applicable law draws heavily from the government's letter brief. 3 Counsel for the government has offered to submit a proposed Order of Garnishment, should the court so direct. (Dkt. No. 13 at 13). In presenting such a proposed Order, the government should be prepared to address the impact of any excess of the value of defendant's retirement account over his outstanding restitution balance, any limitations on the defendant's ability to make withdrawals from his account, and any other relevant consequences of the liquidation of the account, including the potential effect of the ten-percent early withdrawal tax. See Shkreli, 47 F.4th at 73-76. 4 Third-party defendant Ebelechukwu B. Odimegwu has listed that as her address in her objections (Civil Dkt. No. 12 at 1). Defendant Anthony I. Odimegwu stated, in his objections, that he was “kind of homeless,” but would get mail addressed to him as the Bercaw Ct. address, and would provide a permanent address “as soon as I get a house.” (Civil Dkt. No. 11 at 1). End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.