United States v. McArthur

7 F. Supp. 3d 1220, 2014 U.S. Dist. LEXIS 42634, 2014 WL 1245272
CourtDistrict Court, S.D. Alabama
DecidedFebruary 21, 2014
DocketCriminal No. 13-0043-WS
StatusPublished
Cited by3 cases

This text of 7 F. Supp. 3d 1220 (United States v. McArthur) is published on Counsel Stack Legal Research, covering District Court, S.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McArthur, 7 F. Supp. 3d 1220, 2014 U.S. Dist. LEXIS 42634, 2014 WL 1245272 (S.D. Ala. 2014).

Opinion

FINAL ORDER FOR DISPOSITION OF GARNISHED FUNDS

WILLIAM H. STEELE, Chief Judge.

This matter comes before the Court on the Government’s Motion for Final Order for Disposition of Garnished Funds (doc. 29), with incorporated memorandum of law.

On or about April 8, 2013, defendant, Michael A. McArthur, entered a guilty plea in this Court to one count of wire fraud, in violation of 18 U.S.C. § 1343. According to the Factual Resume that Mc-Arthur signed in connection with his plea, he engaged in a scheme and artifice to defraud his employer, Gulf Shores Golf Association, by obtaining money from it without authorization, by means of false and fraudulent representations. (Doc. 2, at 16.) McArthur agreed that this scheme and artifice to defraud caused a total loss to the company of between $30,000 and $70,000. (Id.) On July 23, 2013, the undersigned sentenced McArthur to probation for a term of five years, and ordered him to make restitution to Gulf Shores Golf Association in the amount of $56,911.51, pursuant to 18 U.S.C. § 3663A. (See doc. 17.) Contemporaneously with sentencing, the Court entered a money judgment in the amount of $56,911.51 against McArthur pursuant to Rule 32.2(b)(1)(A), Fed. R.Crim.P. (See doc. 16.)

As a matter of federal statute, this restitution order operates as “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 Inter[1222]*1222nal Revenue Code of 1986.” 18 U.S.C. § 3613(c). In partial satisfaction of that lien, the Government obtained a PosN Judgment Continuing Writ of Garnishment (doc. 22) directed to garnishee, Navy Federal Credit Union (“NFCU”). The Clerk’s Office issued the Writ of Garnishment to NFCU on October 17, 2013. The Government served copies of the Application and Writ of Garnishment, the Clerk’s Notice with sample Request for Hearing and/or Transfer and Claim for Exemption Form, and instructions for objecting to the Garnishee’s Answer and for obtaining a hearing, on both McArthur and Deborah McArthur (an interested party and McAr-thur’s spouse) via Federal Express at their last known residential address on October 21,2013. (See doc. 23.)

In its Second Amended Answer to the Writ of Garnishment, NFCU reported that it had possession, custody or control of a savings account (the “Account”) in which McArthur had an interest. (Doc. 28, at 3.) According to that pleading, the Account (whose last four digits are 5201) is a joint account in the names of McArthur and Deborah McArthur, with a balance of $9,846.39. NFCU’s Answer elaborated on the Account as follows: “Michael A. McAr-thur is joint owner on the account with the right to withdraw without notice to any other account owners or signatories. Deborah McArthur is primary owner with same rights.” (Id.) NFCU certified that it served a copy of this Second Amended Answer on McArthur via U.S. Mail on November 14, 2013. (Id. at 6.) To date, neither McArthur nor Deborah McArthur has filed an objection to the proposed garnishment, claimed any exemption, or requested a hearing. The 20-day period established by 28 U.S.C. § 3205(c)(5) for objections or requests for hearings has long since expired.

As noted, both McArthur and his wife are listed as joint owners of the Account that the Government seeks to garnish. But the restitution order runs solely against McArthur, not his wife. Accordingly, a critical threshold question is whether the Government is entitled to garnish such co-owned property in enforcing the restitution order, which functions like an IRS tax lien pursuant to 18 U.S.C. §§ 3613(c) and 3613(f). In accordance with § 3613(c), once restitution was ordered, all of McArthur’s property became subject to a lien in favor of the United States. The Government’s enforcement powers on that lien (which has since been perfected) reach “all property or rights to property” of McArthur. 18 U.S.C. § 3613(a). To determine whether McAr-thur’s interest in the Account constitutes “property or rights to property” under § 3613 and the federal tax lien statute, “[w]e look initially to state law to determine what rights the taxpayer has in the property the Government seeks to reach, then to federal law to determine whether the taxpayer’s state-delineated rights qualify as ‘property’ or ‘rights to property’ within the compass of the federal tax lien legislation.” United States v. Craft, 535 U.S. 274, 278, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) (citation omitted). In the vernacular of the time-honored Cardozo “bundle of sticks” paradigm for analyzing property rights, “[s]tate law determines only which sticks are in a person’s bundle. Whether those sticks qualify as ‘property’ for purposes of the federal tax lien statute is a question of federal law.” Id. at 278-79,122 S.Ct. 1414.

In looking to state law to determine McArthur’s rights in the Account, the Government urges the Court to apply Florida law. This conclusion is proper, inasmuch as McArthur and his wife are domiciled in Florida; moreover, it appears [1223]*1223that they opened the Account at a NFCU branch in Florida. (See doc. 29, Exh. 2, at 4.) Under Florida law, “[a]ny deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.” Fla. Stat. § 655.79(1). Nothing in the Account documents of record demonstrates that McAr-thur and his wife ever specified in writing that the Account was not to be considered a tenancy by the entirety; therefore, the statutory presumption controls and the Account is entireties property.1

Ordinarily, a tenancy by the entirety spells trouble for a creditor seeking to collect a judgment against one spouse, but not both. Under Florida law, “property held by husband and wife as tenants by the entireties belongs to neither spouse individually, but each spouse is seized of the whole.” Beal Bank, SSB v. Almand and Associates, 780 So.2d 45, 53 (Fla.2001) (citation omitted); see also In re Pierre, 468 B.R. 419, 426 (Bankr.M.D.Fla.2012) (under Florida law, “[entireties property belongs to neither spouse individually, but each spouse holds the whole or the entirety, and not a share, moiety, or divisible part”) (citation and internal quotation marks omitted). “As long as all the unities remain intact, ... each spouse’s interest comprises the whole or entirety of the property and not a divisible part; the estate is inseverable.” United States v. One Single Family Residence with Out Buildings Located at 15621 S.W. 209th Ave., Miami, Fla.,

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Cite This Page — Counsel Stack

Bluebook (online)
7 F. Supp. 3d 1220, 2014 U.S. Dist. LEXIS 42634, 2014 WL 1245272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcarthur-alsd-2014.