United States v. Kerr

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 United States of America, No. CV-19-05432-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Stephen M Defendant,

13 Defendant. 14 15 Before the Court is Plaintiff United States of America’s (“Plaintiff”) Motion to 16 Correct Order and Judgment under Federal Rule of Civil Procedure 60(a). (Doc. 88). 17 The Court ordered Defendant Stephen M. Kerr (“Defendant”) to file a response or notice 18 of non-opposition to Plaintiff’s Motion to Correct on March 17, 2025. (Doc. 89). On 19 March 20, 2025, Defendant filed a Notice of Non-Opposition to the Plaintiff’s Motion. 20 (Doc. 90). 21 The Court had previously reopened the case and entered final judgment after 22 remand in favor of the Plaintiff. (Doc. 86). The Court awarded the Plaintiff $634,828.34 23 in penalties under 31 U.S.C. § 3717(e)(2), along with other penalties against the 24 Defendant. (Doc. 86 at 13). Now, Plaintiff’s Motion states that this amount should have 25 been $643,828.34. (Doc. 88 at 2). Plaintiff requests that the Court correct its clerical 26 error, as it is authorized to do under Federal Rule of Civil Procedure 60(a). (Id. at 1). 27 The Court agrees with Plaintiff that this amount was a transcription error and the proper 28 amount to be awarded is $643,828.34. 1 Under 60(a), a court “may correct a clerical mistake or a mistake arising from 2 oversight or omission whenever one is found in a judgment, order, or other part of the 3 record.” Blanton v. Anzalone, 813 F.2d 1574, 1577 (9th Cir. 1987). In determining 4 whether a mistake may be corrected under Rule 60(a), the focus is on what the court 5 “originally intended” to do. Id. “A district court judge may properly invoke Rule 60(a) 6 to make a judgment reflect the actual intentions and necessary implications of the court's 7 decision.” Robi v. Five Platters, Inc., 918 F.2d 1439, 1445 (9th Cir. 1990) (citing 8 Blanton, 813 F.2d at 1577). Accordingly, “[e]rrors correctable under Rule 60(a) include 9 those where what is written or recorded is not what the court intended to write or 10 record[,]” regardless if the error “is made by a clerk or by the judge.” Blanton, 813 F.2d 11 at 1577. 12 Here, the Court made a clerical error when it recorded the amount of penalties 13 under 31 U.S.C. § 3717(e)(2) as $634,828.34 instead of $643,828.34. The Court’s intent 14 was to write the correct amount of $643,828.34. As the Plaintiff notes in its Motion, 15 “[T]he 3 and 4 numbers were inadvertently transposed as part of a clerical mistake.” 16 (Doc. 88 at 2). This error is properly correctable under Federal Rule of Civil Procedure 17 60(a) because “it is not what the court intended to write or record.” Blanton, 813 F.2d at 18 1577. 19 Accordingly, 20 IT IS ORDERED that Plaintiff’s Motion to Correct Order and Judgment 21 (Doc. 88) is GRANTED. 22 IT IS FURTHER ORDERED that the Court’s Order (Doc. 86) directing the 23 Clerk of Court to enter Judgment in favor of Plaintiff and against Defendant and the 24 subsequent Clerk’s Judgment (Doc. 87), shall be AMENDED. The Clerk shall enter the 25 following Amended Judgment in favor of the Plaintiff and against Defendant Stephen 26 Kerr, after remand for willfully failing to file FBARs for the following: 27 Account Year FBAR penalty 28 UBS - 962 2007 $248, 373 ' UBS - 796 2007 $467, 200 UBS - 593 2007 $555,450 Pictet & Cie - 531 2007 $438.593 ‘ UBS - 962 2008 $100,000 ° Pictet & Cie - 531 2008 $100,000 Total $1,909,616 3 IT IS FURTHER ORDERED that in addition to these willful FBAR penalty 9 amounts, the Defendant also owes pre-judgment interest under the following statutes and

10 in the following amounts:

e Under 31 U.S.C. § 3717(a) totaling $107,304.72; e Under 31 U.S.C. § 3717(e)(2) for failure to pay totaling $643,828.34, for a

B total amount due of $2,660,749.06, calculated as of August 4, 2023; 14 e Under 31 U.S.C. § 3717(a) for additional pre-judgment interest through the

15 date (March 6, 2025) that judgment relating to these willful FBAR penalty 16 amounts is entered; e Under 29 U.S.C. § 1961 for post-judgment interest from the date judgment 18 relating to these willful FBAR penalty is paid in full; 19 e Defendant further owes a continuing failure to pay penalty under 31 U.S.C.

§ 3717(e)() accruing after August 4, 2023, and until the judgment relating to these willful FBAR penalty amounts are paid in full; 39 e Under 31 U.S.C. § 3717(e)(1), for potential other collection fees accruing 53 after August 4, 2023, until the judgment relating to these willful FBAR

penalty amounts are paid in full.

35 Dated this Ist day of April, 2025. 26 A ep A 4 Lary Zh □□

norable'DiangJ. Huretewa United States District Fudge 28

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