United States v. Saemisch

70 F.4th 1

• Court: Court of Appeals for the First Circuit
• Decided: June 5, 2023
• Docket: 22-1076
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1076

UNITED STATES OF AMERICA,

Appellee,

v.

CHRISTOPHER SAEMISCH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Barron, Chief Judge, Selya and Thompson, Circuit Judges.

Zainabu Rumala, Assistant Federal Public Defender, for appellant. Raquelle L. Kaye, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

June 5, 2023 SELYA, Circuit Judge. This appeal requires us, for the

first time, to address the so-called "turnover" statute. See 18

U.S.C. § 3664(n). Under this legislation, prison inmates are

required to put "substantial resources" acquired while

incarcerated toward unpaid restitution obligations. Id.

Concluding, as we do, that the district court's application of the

statute was both lawful and within the compass of its discretion,

we affirm its order regarding the disposition of the appellant's

funds.

I

We briefly rehearse the relevant facts and travel of the

case. In March of 2019, a jury convicted defendant-appellant

Christopher Saemisch of distributing child pornography. See 18

U.S.C. § 2252A(a)(2)(A). Following his conviction, the district

court sentenced him to a 360-month term of immurement and a

lifetime of supervised release. It also ordered him to make

restitution to the victims of his crime. See id. § 2259; see also

Paroline v. United States, 572 U.S. 434, 443-48 (2014) (explaining

special method of calculating restitution in child pornography

cases).

The district court's restitution order, incorporated in

its amended judgment, fixed the restitution amount at $18,000.

Additionally, the order stated that "[p]ayment of the restitution

shall begin immediately and shall be made according to the

- 2 - requirements of the Federal Bureau of Prisons' Inmate Financial

Responsibility Program while the [appellant] is incarcerated and

according to a court-ordered repayment schedule during the term of

supervised release."

During the appellant's incarceration, the government

learned that his inmate trust account — an account maintained for

him by the Bureau of Prisons (BOP) into which "[f]amily, friends,

or other sources" may make deposits, 28 C.F.R. § 506.1 — reflected

a balance of $10,956.36. Citing an amalgam of statutory

provisions, see 18 U.S.C. §§ 3613(a), 3664(m), (n), the government

moved for an order authorizing the BOP to "turnover to the Clerk

of the Court all funds held" in the appellant's account, to be

used "as payment towards" his outstanding restitution obligation.

At the time, the appellant had paid no more than a few hundred

dollars on account of that debt.1

Proceeding pro se, the appellant opposed the motion. He

explained that — between October 1, 2020 and August 13, 2021 — he

had received money from three principal sources: $10,555 from the

settlement of a lawsuit brought to recover the value of items

stolen from him after he was arrested; $1,725 in COVID-related

1In the court below, the government asserted that the appellant had paid only $46.82 toward restitution. Record evidence, though, suggests that the government's assertion may have undershot the mark. The apparent discrepancy is not material for present purposes, and we do not attempt to resolve it.

- 3 - stimulus checks issued by the federal government, see 26 U.S.C.

§§ 6428, 6428A, 6428B; and monthly wages earned while working in

prison.2

Relatedly, the appellant noted that he was participating

in the BOP's Inmate Financial Responsibility Program (IFRP). See

28 C.F.R. § 545.10-11. Through the IFRP, fifty percent of the

appellant's monthly earnings from prison wages was to be allocated

to his restitution obligation.

Against this backdrop, the appellant argued that

turnover of his accumulated funds was not warranted for four

reasons. First, he argued that his direct appeal was pending and

that, therefore, the turnover motion was premature.3 Second, he

argued that both the funds obtained from the lawsuit and the

stimulus checks were beyond the reach of the turnover statute

because they were not income. Third, he argued that the stimulus

checks were exempt from turnover because Congress intended that

money to be used to bolster the economy. Fourth, he argued that,

2 The appellant worked in a UNICOR job. "UNICOR is the trade name for Federal Prison Industries, Inc., a government corporation that provides work and training opportunities for federal inmates." United States v. Thompson, 227 F.3d 43, 45 n.4 (2d Cir. 2000); see 28 C.F.R. § 345.11(a). During the period for which the appellant provided data, his monthly prison wages ranged from a low of $23.23 to a high of $138.98.

3 We subsequently affirmed the appellant's conviction and sentence. See United States v. Saemisch, 18 F.4th 50, 66 (1st Cir. 2021). Consequently, this ground of objection has been rendered moot.

- 4 - as required by the court's earlier order, he had made all payments

required by the IFRP in a timely manner.

The district court found the appellant's objections

wanting. Citing 18 U.S.C. § 3664(m)(1)(A) and 18 U.S.C. § 3664(n),

the court entered a turnover order. The order directed the BOP to

turn over the full amount contained in the appellant's inmate trust

account ($10,956.36) to the Clerk of the Court for application

toward the appellant's outstanding restitution obligation. This

timely appeal followed.

II

The appellant is now represented by counsel, and he

challenges the district court's decision to grant the turnover

motion. Viewed from a high level of generality, he advances two

contentions. First, he contends that the turnover order

"impermissibly supersede[s]" provisions in the restitution order

that dictate both the timing and amount of his restitution

payments. Second, he contends that — even if the turnover order

is not entirely invalid — the district court needed to make certain

factual findings before it granted the government's motion.

We assume, favorably to the appellant, that these claims

of error are preserved. Cf. Estelle v. Gamble, 429 U.S. 97, 106

(1976) (explaining that pro se filings are "to be liberally

construed"). Consequently, we review the district court's

turnover order for abuse of discretion. See United States v. Kidd,

- 5 - 23 F.4th 781, 785 (8th Cir. 2022); United States v. Rand, 924 F.3d

140, 142 (5th Cir. 2019) (per curiam). Within that rubric, we

"examin[e] the court's subsidiary factual findings for clear error

and its answers to abstract legal questions de novo." United

States v. Chiaradio, 684 F.3d 265, 283 (1st Cir. 2012); see United

States v. Troy, 618 F.3d 27, 35 (1st Cir. 2010) (noting that

"questions of statutory interpretation . . . entail de novo

review").

III

A

We start with the appellant's contention that the

turnover order is invalid because it "impermissibly supersede[s]"

provisions in the restitution order. Because this contention is

premised on a perceived conflict between the terms of the two

orders, some context is useful.

As noted above, the appellant's restitution order stated

that he was to "begin [payment of restitution] immediately." The

order specified that "[p]ayment of the restitution . . . shall be

made according to the requirements of the [IFRP] while the

[appellant] is incarcerated." Although the restitution order does

not otherwise describe the IFRP's payment terms, the record makes

manifest that the IFRP requires the appellant to allocate fifty

percent of his monthly wages to restitution. The appellant

contends that, because the restitution order requires payments to

- 6 - be made "according to . . . the [IFRP]," the district court could

not authorize turnover of any amount exceeding fifty percent of

his monthly wages unless the court first amended the restitution

order. We do not agree.

Congress has directed district courts to "issue[] and

enforce[]" restitution orders under the Mandatory Victims

Restitution Act (MVRA), 18 U.S.C. § 3664, including orders in child

pornography cases, see id. § 2259(b)(3). As relevant here, the

MVRA establishes procedures for district courts to follow when

fashioning such restitution orders, see, e.g., id. § 3664(a)-(f),

and creates mechanisms for adjusting those orders once they have

issued, see, e.g., id. § 3664(k). In addition, the MVRA grants

the government authority to enforce a restitution order after it

comes into effect. See id. § 3664(m).

Of particular pertinence here, the MVRA requires certain

defendants to apply to their restitution obligation any sudden

windfalls that they receive. Section 3664(n) — the statutory

provision relied on by the district court and around which this

appeal revolves — states in relevant part that "[i]f a person

obligated to provide restitution . . . receives substantial

resources from any source . . . during a period of incarceration,

such person shall be required to apply the value of such resources

to any restitution . . . still owed." Id. § 3664(n).

- 7 - By its terms, this statutory provision establishes a

conditional obligation that extends to incarcerated defendants who

owe restitution. That conditional obligation is triggered by a

defendant's receipt of "substantial resources," id., which courts

have held to mean a "windfall[] or sudden financial injection[],"

United States v. Hughes, 914 F.3d 947, 951 (5th Cir. 2019); accord

United States v. Carson, 55 F.4th 1053, 1056 (6th Cir. 2022).

Because section 3664(n) targets only resources that are

"substantial," the windfall or sudden injection of funds must be

"considerable in amount, value, or worth." Substantial, Webster's

Third New International Dictionary (1993); see Carson, 55 F.4th at

1057. The receipt of such a windfall obligates a defendant — if

ordered by the district court — to "apply the value" of that

windfall to any unpaid restitution. 18 U.S.C. § 3664(n); see

Carson, 55 F.4th at 1056 ("If [a defendant] receives any windfall,

that amount would automatically apply toward his restitution

obligation.").

In the case at hand, the district court found that the

appellant received funds that qualified as "substantial resources"

under section 3664(n). The appellant's settlement payment easily

fits within that taxonomy. See 18 U.S.C. § 3664(n) (expressly

identifying "settlement" payments as eligible for turnover); see

also Carson, 55 F.4th at 1058 (explaining that, where inmate

otherwise earned "no more than a hundred dollars a month in wages,"

- 8 - his receipt of "a few thousand dollars" constituted receipt of

substantial resources). Similarly, the COVID-related stimulus

checks remitted to the appellant fit within that taxonomy. See

United States v. Stark, 56 F.4th 1039, 1041 (5th Cir. 2023) (per

curiam) (concluding that COVID stimulus payments constitute

"substantial resources" (quoting 18 U.S.C. § 3664(n))). Before

us, the appellant does not reprise the claim, made below, that

Congress intended the stimulus payments to be immune from turnover.

Any such claim is, therefore, waived. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Inasmuch as the appellant plainly received funds falling

under the umbrella of section 3664(n), his argument necessarily

hinges on whether the district court could compel him to apply

those funds to his unpaid restitution obligation and, if so,

whether the court could require that he apply those funds

immediately as a lump-sum payment. The appellant posits that

resolving these issues requires us to determine the extent to which

the turnover order conflicts with the terms of the restitution

order. In his view, the restitution order establishes a payment

plan (the IFRP) that limits the amount of money he is required to

pay toward restitution to fifty percent of his monthly wages. By

applying a lump sum that greatly exceeds fifty percent of his wages

to his restitution obligation, the appellant's thesis runs, the

turnover order contravenes the terms of the restitution order.

- 9 - Building on this foundation, the appellant suggests that — in the

absence of either amendment of the restitution order or a default

on the payment plan — there is no justification for ordering the

turnover of additional funds (even funds that constitute

"substantial resources").

The government approaches the issue from a different

angle. It says that — through section 3664(m) of the MVRA —

Congress empowered the district court to enforce orders of

restitution in several ways. One such way is to compel a defendant

to turn over the full value of any windfall that he receives while

in prison. See 18 U.S.C. § 3664(m), (n).

The government's approach is more consistent with the

text and purpose of both the MVRA generally and section 3664(n)

specifically. Through the MVRA, Congress sought "to ensure that

victims of a crime receive [prompt and] full restitution." Dolan

v. United States, 560 U.S. 605, 612 (2010). As one means of

achieving that goal, Congress expanded the government's authority

to enforce orders of restitution. See United States v. Ridgeway,

489 F.3d 732, 736 n.6 (5th Cir. 2007) (stating that, in enacting

the MVRA, Congress "g[ave] the [g]overnment a broader grant of

authority to enforce restitution orders"). In addition, Congress

supplied the government with a better stocked armamentarium for

collecting unpaid restitution. Although Congress specifically

enumerated certain of the mechanisms within this armamentarium,

- 10 - see, e.g., 18 U.S.C. §§ 3613, 3664(m)(1)(A)(i), it did not restrict

the government's ability to collect restitution to the enumerated

mechanisms alone. Instead, Congress clarified that the government

may use "all other available and reasonable means" to ensure that

defendants promptly and completely satisfy restitution

obligations. Id. § 3664(m)(1)(A)(ii).

In this case, the district court — through its reference

to 18 U.S.C. § 3664(m) in the turnover order — implicitly

determined that immediate application of the windfall amount to

the outstanding restitution obligation was an "available and

reasonable" means of enforcing the restitution order. Thus, the

question reduces to whether that determination is supportable.

The MVRA does not define what it means for a method of

enforcement to be "available." "When Congress uses a term in a

statute and does not define it, we generally assume that the term

carries its plain and ordinary meaning." City of Providence v.

Barr, 954 F.3d 23, 31 (1st Cir. 2020); see Octane Fitness, LLC v.

ICON Health & Fitness, Inc., 572 U.S. 545, 553 (2014). The plain

and ordinary meaning of the term "available" is "capable of use

for the accomplishment of a purpose" or "immediately utilizable."

Available, Webster's Third New International Dictionary (1993);

see Available, Oxford English Dictionary Online (3d ed. 2022)

(defining "available" as "[a]ble to be used" or "at one's

disposal").

- 11 - The district court's order plainly indicates that the

court understood the turnover of the funds in the appellant's

inmate trust account to be an immediately utilizable means through

which the appellant could be compelled to satisfy his outstanding

restitution obligation. So, too, the order plainly indicates the

court's understanding that such a turnover was justified by section

3664(n). We conclude that both the structure and the text of the

MVRA support this decision.

In reaching this conclusion, we are guided by the tenet

that statutory provisions must be interpreted by reference to the

structure and context of the broader statutory scheme in which

they reside. See Abramski v. United States, 573 U.S. 169, 179

(2014); see also United States v. Seward, 967 F.3d 57, 66 (1st

Cir. 2020). The MVRA generally commits determinations regarding

the timing of restitution payments to the district court's

discretion. See 18 U.S.C. § 3664(f)(2)-(3), (k). And section

3664(n) contains nothing to suggest that this general principle

should not apply with unabated force to situations in which a

defendant receives a sudden and substantial infusion of cash.

We add, moreover, that the text of section 3664(n)

reinforces the idea that district courts retain broad discretion

in determining how the value of the substantial resources may be

put toward restitution. In enacting section 3664(n), Congress

established a clear directive: a defendant must "apply" the value

- 12 - of the newly received substantial resources to restitution. Id.

§ 3664(n); see Apply, Webster's Third New International Dictionary

(1993) (defining "apply" as "to use for a particular purpose");

Apply, Black's Law Dictionary (6th ed. 1990) (defining "apply" as

"to appropriate and devote to a particular use"). And although

section 3664(n) is silent as to how or when those resources must

be applied to restitution, that gap is filled by the statutory

directive that such a turnover obligation must be "reasonable."

18 U.S.C. § 3664(m)(1)(A)(ii).

As we have written in other settings, "[r]easonableness

is a concept, not a constant." McCambridge v. Hall, 303 F.3d 24,

36 (1st Cir. 2002) (en banc) (quoting United States v. Ocasio, 914

F.2d 330, 336 (1st Cir. 1990)). "What is 'reasonable'" will

"necessarily var[y] from case to case." Lopez v. Garriga, 917

F.2d 63, 69 (1st Cir. 1990). Thus, "[w]hat is reasonable in one

set of circumstances may be unreasonable in another set of

circumstances." United States v. Pagán-Rodríguez, 600 F.3d 39, 42

(1st Cir. 2010). And some cases will be on the margin, requiring

the district court to choose between reasonable, but conflicting,

alternatives.

Here, the district court's decision to require immediate

payment was reasonable under the circumstances. Although the

appellant complains that he needs the money targeted for turnover

for communication purposes and hygienic items, there is nothing in

- 13 - the record to suggest that his future earnings will be insufficient

to cover those costs. After all, the appellant does not dispute

that he will continue to earn income through his job at the prison.

He will retain fifty percent of his prison wages under the IFRP.

The retained portion will enable him to satisfy his general needs

to the extent that those needs are not already met by the BOP.

See United States v. Lillard, 935 F.3d 827, 835 (9th Cir. 2019)

(explaining that section 3664(n) only applies to defendant's

receipt of substantial resources during period of incarceration

"because, during such a period, defendants can rely on the [BOP]

to provide for their subsistence needs").

What is more, the district court's turnover order is in

keeping with Congress's expressed intent in enacting both section

3664(n) and the MVRA writ large. In enacting section 3664(n),

Congress sought to ensure "that windfalls received by prisoners

from all sources . . . will go to pay victims" and "not to the

prisoner." 142 Cong. Rec. S3379 (1996) (statement of Sen. Charles

Grassley). That intent matches the intent that underlies the MVRA

as a whole: "ensur[ing] that victims of a crime receive [prompt

and] full restitution." Dolan, 560 U.S. at 612. The district

court's decision to require immediate payment of what remains of

the appellant's windfall amount serves both of these aims. That

fact — coupled with the appellant's failure to show a demonstrated

- 14 - need for the funds — anchors our conclusion that the district

court's requirement of immediate payment was reasonable.

B

Contrary to the appellant's importunings, the mere

circumstance that the restitution order contains a payment

schedule does not demand a different result.4 When a defendant

obtains substantial resources while in prison, section

3664(m)(1)(A)(ii) and section 3664(n), in combination, empower the

district court to enforce the defendant's obligation to apply newly

emergent funds, constituting substantial resources, toward unpaid

restitution immediately, notwithstanding the existence of a

payment schedule. See Rand, 924 F.3d at 142-44 (explaining that

payment schedule does not function as "shield against collection"

and permitting turnover notwithstanding fact that defendant's

restitution payments were not to begin, under existing order, until

after release from prison).

4 We assume, without deciding, that the restitution order establishes a payment schedule. The order states that restitution payments "shall be made according to the requirements of the [IFRP]." In turn, the IFRP requires the appellant to remit fifty percent of his monthly wages to restitution. Evidence in the record suggests, though, that the district court may have referred to the IFRP simply to identify the mechanism through which restitution payments were to be made. If that is the case, the default presumption would be that the order does not establish a payment plan. See United States v. Diehl, 848 F.3d 629, 631 (5th Cir. 2017); United States v. Wykoff, 839 F.3d 581, 582 (7th Cir. 2016).

- 15 - This case illustrates the practical wisdom of such a

rule. The payment schedule contained in the initial restitution

order only accounted for funds that the appellant either possessed

or was reasonably expected to possess when the order was entered.

See 18 U.S.C. § 3664(f)(2) (requiring that restitution order

account for defendant's current assets and projected earnings).

His later windfall constituted a sudden and unusual infusion of

cash that was not anticipated when the district court crafted its

initial order. It would, therefore, make no sense to construe the

initial order's payment schedule as a bar to the district court's

authority (pursuant to sections 3664(m) and (n)) to determine the

timing through which the value of the appellant's later-acquired

windfall should be applied to restitution.

The appellant's reliance on Hughes, 914 F.3d at 949, and

United States v. Martinez, 812 F.3d 1200, 1207 (10th Cir. 2015),

is mislaid. Neither of those cases turned on an inmate's receipt

of substantial resources. See Hughes, 914 F.3d at 951; Martinez,

812 F.3d at 1203-07.

C

We summarize succinctly. Section 3664(m)(1)(A)(ii)

authorizes the use of all "available and reasonable means" to

enforce restitution. 18 U.S.C. § 3664(m)(1)(A)(ii). When a

defendant receives a sudden, unanticipated windfall while in

prison, and is required by section 3664(n) to surrender the

- 16 - proceeds, an order requiring the application of those funds to an

outstanding restitution obligation is permissible as long as the

timing and manner of their application is reasonable. Here, the

court's decision to compel the appellant to apply almost the entire

balance of his windfall to unpaid restitution without delay was

reasonable under the circumstances.

That ends this aspect of the matter. We hold that —

under 18 U.S.C. § 3664(m) and (n) — the district court had the

authority to order the BOP to turn over the substantial resources

garnered by the appellant and remaining in his trust account, so

that those funds could be applied immediately to the appellant's

outstanding restitution obligation.

IV

This leaves the appellant's assertion that the district

court overstepped the bounds of its discretion by ordering the

turnover of substantial resources without first making certain

antecedent factual findings. That assertion encompasses two

independent claims, which we treat separately.

We begin with the appellant's claim that the district

court was required to assess his financial circumstances before

granting the government's turnover motion. In particular, the

appellant contends that the court needed to consider the matters

limned in 18 U.S.C. § 3664(f)(2)(A)-(C), such as the appellant's

- 17 - assets, projected earnings, and financial obligations. We think

not.

By its terms, section 3664(f)(2) only applies when the

district court is fashioning its original restitution order. See

United States v. Tarnawa, 26 F.4th 720, 724 (5th Cir.), cert.

denied, 142 S. Ct. 2887 (2022); Lillard, 935 F.3d at 834-35. The

statute's commands have no application to a district court's

decision to authorize a turnover under sections 3664(m) and (n).

The text of section 3664(f)(2) leads inexorably to this

conclusion. The statute states that it applies "[u]pon [the

court's] determination of the amount of restitution owed to each

victim." 18 U.S.C. § 3664(f)(2). That determination occurs only

once in the lifecycle of a restitution order — and it must be made

before the court issues the original restitution order.

To cinch the matter, the statute is framed as a set of

instructions regarding the information that the district court

must include "in the restitution order." Id. Neither section

3664(f)(2) nor section 3664(n) in any way suggests that those

instructions have any application when a court, months or years

later, considers whether and to what extent a turnover of

substantial resources may be appropriate. Cf. Tarnawa, 26 F.4th

at 724-25 (declining to "import" section 3664(f)(2) factors into

section 3664(k) because there is no textual link between them).

- 18 - The structure of section 3664(n) fortifies this

conclusion. Unlike section 3664(f), section 3664(n) does not

contain any reference to factors relating to a defendant's

financial condition. That omission is critically important, given

that courts generally should presume that Congress "acts

intentionally when it uses particular language in one section of

a statute but omits it in another." Dep't of Homeland Sec. v.

MacLean, 574 U.S. 383, 391 (2015); see United States ex rel.

Heineman-Guta v. Guidant Corp., 718 F.3d 28, 35 (1st Cir. 2013).

Giving weight to that presumption here, it is conspicuously clear

that Congress's decision not to embed in section 3664(n) language

directing courts to consider a defendant's financial circumstances

was deliberate and that, therefore, Congress did not intend that

such factors should inform the turnover calculus.

That is game, set, and match. We hold that the district

court did not abuse its discretion by issuing the turnover order

without making any findings anent the section 3664(f)(2) factors.

Sounding a loosely related theme, the appellant argues

that the district court needed to make a different collocation of

findings. In his view, the court had to identify and

"distinguish[]" the source of the funds in his trust account and

determine whether those funds could be applied toward restitution

before authorizing a turnover.

- 19 - To put this argument into perspective, we note that a

total of $12,280 in funds that fit within the "substantial

resources" taxonomy were deposited into the appellant's inmate

trust account between November of 2020 and March of 2021. Five

months then elapsed before the government moved for a turnover

order in August of 2021.

In the nine-month period between the time when the

appellant received the first windfall payment and the time when

the government moved for a turnover order, the "substantial

resources" deposited into the account were comingled with other

funds (such as the appellant's prison wages). The appellant

contends that this comingling is significant because neither

prison wages nor the gradual accumulation thereof trigger the

possibility of turnover under sections 3664(m) and (n). See

Hughes, 914 F.3d at 951; see also Carson, 55 F.4th at 1057; Kidd,

23 F.4th at 787.

During the same period, money also flowed out of the

account: the appellant made expenditures for books, gifts,

purchases from the commissary, and other sundries. After

accounting for the more than one hundred transactions (including

both deposits and withdrawals) that occurred within this time

frame, the account held a balance of $10,956.36. The government's

motion sought turnover of that amount.

- 20 - Seizing upon the fact that his trust account contained

a mixture of funds, some of which triggered the possibility of

turnover and some of which did not, the appellant argues that —

before the district court could order the turnover of a sum of

money from the account — it should first have identified the source

of that money and restricted any turnover to funds that could

specifically be earmarked as "substantial resources." We think

that this suggestion overstates the district court's duty.

Of course, a district court must examine the source or

sources of an inmate's account before it may order the turnover of

funds contained in that account under sections 3664(m) and (n).

See Kidd, 23 F.4th at 783-85, 787-88 (vacating turnover when source

of funds in inmate's account was "unknown"). If the examination

discloses that the account is comprised, wholly or partially, of

funds properly characterized as "substantial resources," then that

account — up to the total amount of the "substantial resources" —

may be targeted in a turnover order. See id. at 787. If, however,

the examination discloses that the monies in the account consist

only of gradually accumulated prison wages or other funds that do

not qualify as "substantial resources," section 3664(n) is not

implicated and the district court may not enter a turnover order

under sections 3664(m) and (n). See id.; Hughes, 914 F.3d at 951.

In this instance, an examination of the trust account

shows that the balance derived from a combination of sources,

- 21 - including the appellant's prison wages. That comingling, the

appellant contends, required the district court to conduct

additional factfinding to trace the source of every dollar

remaining in his trust account and isolate the amount that stemmed

from his UNICOR wages. This contention is ill-conceived. Where,

as here, a district court finds that funds that constitute

substantial resources have been comingled with other funds in a

single account, the court should consider whether it is practicable

to segregate the amount of money derived from substantial

resources.

But money is fungible, see United States v. Rivera-

Izquierdo, 850 F.3d 38, 45 n.6 (1st Cir. 2017), and in many cases

it will be impossible for the court to make a dollar-by-dollar

accounting, tracing individual dollars back to their original

sources, see United States v. Ayika, 837 F.3d 460, 472 (5th Cir.

2016) ("[W]hen legitimate money and illegitimate money are placed

in the same account, and various withdrawals and other deposits

occur over time, there is no method to determine the exact source

of any specific dollar or dollars."); United States v. Moore, 27

F.3d 969, 976-77 (4th Cir. 1994) (explaining that, once combined,

illicitly obtained funds cannot be distinguished from legitimately

acquired funds). In that event, the court — under sections 3664(m)

and (n) — may order the turnover of any sum of money up to the

amount of substantial resources deposited into the account. An

- 22 - important limiting principle is that the district court's turnover

order must be in an amount that is reasonable under the

circumstances. See 18 U.S.C. § 3664(m)(1)(A)(ii).

The order appealed from satisfies these criteria.

Although the court did not expressly consider whether it was

practicable to determine how much of the appellant's account

balance derived from substantial resources, the record makes

pellucid that — given the pervasive comingling — it would have

been impossible for the court to segregate the funds that triggered

the possibility of turnover from those that did not. Thus, it was

sufficient for the court to find — as it did — that the appellant

had received substantial resources totaling $12,280, which had

been deposited into his trust account. That figure then became

the ceiling for a turnover order, and the court's decision to order

the immediate turnover of $10,956.36 was reasonable (especially

since the reason that the account held less than $12,280 was that

the appellant had already spent some of the money).

Given this reasoning, we reject the appellant's claim

that additional factfinding was required. Relatedly, we hold that

the turnover order was within the ambit of the district court's

discretion.

- 23 - V

We need go no further. For the reasons elucidated above,

the turnover order is

Affirmed.

- 24 -