United States v. Nicastro

• Court: District Court, N.D. New York
• Decided: October 8, 2025
• Docket: 5:25-cv-01051
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

UNITED STATES OF AMERICA

Plaintiff,

-v- 5:25-CV-1051

CROSS NICASTRO

Defendant,

and

E-TRADE SECURITIES, LLC,

Garnishee.

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APPEARANCES: OF COUNSEL:

JOHN A. SARCONE III MELISSA O. ROTHBART, ESQ. United States Attorney for the Ass’t United States Attorney Northern District of New York 100 South Clinton Street, Syracuse, NY 13261-7198

CROSS NICASTRO Defendant, pro se 3720 Southside Road Frankfort, NY 13340

E-TRADE SECURITIES, LLC Garnishee 200 Hudson Street, Suite 500 Jersey City, New Jersey DAVID N. HURD United States District Judge

ORDER ON REPORT & RECOMMENDATION On August 8, 2025, plaintiff the United States of America (the “Government”) filed this civil action, pursuant to 28 U.S.C. §§ 3205(b)(1) of the Federal Debt Collection Procedures Act of 1990, to garnish Cross

Nicastro’s (“defendant”) interest in a brokerage account to satisfy his restitution obligation.12 Dkt. Nos. 1, 3. The writ was issued to the garnishee, who answered shortly thereafter. Dkt. Nos. 3, 7. On August 22, 2025, defendant filed an exemption claim and requested a hearing, arguing both

that he is in full compliance with the existing restitution order and that the Government’s garnishment action violates that order. Dkt. No. 8. The Government opposed defendant’s request, arguing that he: (1) fails to set forth a basis entitling him to a hearing to contest the writ; and (2) even if

defendant did have a basis for such a hearing, garnishment is still proper

1 Briefly stated, defendant was found guilty in 2012 of conspiracy to: impede the United States, violate CERCLA, violate the Clean Water Act, obstruct justice, and commit wire fraud in violation of 18 U.S.C. § 371. United States v. Nicastro, 5:11-CR-0264, 2013 WL 2309692 (N.D.N.Y. March 13, 2023), aff’d, 586 F. App'x 60 (2d Cir. 2014). Thereafter, on June 30, 2016, the Court issued an amended judgment ordering defendant pay restitution in the amount of $300,000, and that payments were to be made in monthly installments of not less than $200.00. Id. As of August 26, 2025, defendant still owes $277,891.00. Dkt. No. 10. 2 E-Trade Securities, LLC (the “Garnishee”), was served with a Writ of Continuing Garnishment. Dkt. No. 3. They answered, Dkt. No. 7, indicating defendant was the owner of a brokerage account that, as of August 18, 2025, was valued at $285,482.34. here because plaintiff’s brokerage account is not subject to an exemption nor is the Government barred from further collection efforts, such as the instant

one, as a result of the amended judgment issued in 2016. Dkt. No. 10. On August 27, 2025, U.S. Magistrate Judge Miroslav Lovric ordered the parties to file supplemental briefing addressing what court order obligated defendant to make full, complete, and immediate restitution as opposed to

the schedule of monthly installments set forth in the Amended Judgment. Dkt. No. 12. Only the Government complied with this order. Dkt. No. 13. On September 17, 2025, Judge Lovric advised by R&R3 that defendant’s motion for a hearing should be denied, that defendant should not be entitled

to an exemption as to his brokerage account, and that this Court should proceed to issue an appropriate writ of garnishment. Dkt. No. 15. Defendant has not opposed the R&R, and the time to do so has passed. Id. Upon review for clear error, Judge Lovric’s R&R is accepted and will be

adopted in all respects. See FED. R. CIV. P. 72(b). The Government is directed to submit a proposed order to this Court as to the issuance of an appropriate writ of garnishment, and this matter will be stayed until such time as they have done so.

Therefore, it is

3 This Federal Debt Collection Act matter was properly referred to Judge Lovric for an R&R. See N.D.N.Y. L.R. 72.3(f). ORDERED that 1. The Report & Recommendation (Dkt. No. 15) is ACCEPTED; 2. Defendant’s motion for a hearing (Dkt. No. 8) is DENIED; 3. The Government is ordered to submit a proposed order to this Court as to the issuance of an appropriate write of garnishment; and 4, The Court sua sponte stays this matter until the Government files a proposed order. The Clerk of the Court is directed to terminate the pending motions (Dkt. Nos. 8, 15) and stay the case pending the Government’s submittal. IT IS SO ORDERED.

U.S. Disfrict Judge Dated: October 8, 2025 Utica, New York.

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