United States v. Sayyed

862 F.3d 615, 2017 WL 2870995, 2017 U.S. App. LEXIS 12030
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 6, 2017
DocketNo. 16-2858
StatusPublished
Cited by13 cases

This text of 862 F.3d 615 (United States v. Sayyed) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sayyed, 862 F.3d 615, 2017 WL 2870995, 2017 U.S. App. LEXIS 12030 (7th Cir. 2017).

Opinion

WILLIAMS, Circuit Judge.

Rafi Sayyed was ordered to pay $940,000 in mandatory restitution to the American Hospital Association after pleading guilty to mail fraud. The United States sought to collect part of the restitution with approximately $827,000 contained in Sayyed’s retirement accounts. The district court granted the government’s motion for turnover orders. On appeal, Sayyed maintains that the district court erred in failing to find that his retirement funds qualify as “earnings” subject to the 25% garnishment cap under the Consumer Credit Protection Act. We disagree. Because the garnishment cap only protects periodic distributions pursuant to a retirement program and the government may reach Sayyed’s present interest in his retirement funds, the district court properly granted the government’s turnover motion.

I. BACKGROUND

From 2003 to 2006, while employed as Director of Application for the American Hospital Association (“AHA”), Rafi Sayyed directed overpriced contracts to companies in exchange for kickbacks. For his crimes, Sayyed plead guilty to one count of mail fraud, in violation of 18 U.S.C. § 1341, was sentenced to three months’ imprisonment and ordered to make restitution payments to the AHA in the amount of $940,450.00, pursuant to the Mandatory Victims Restitution Act. 18 U.S.C. § 3663A. As of November 20, 2015, Sayyed still owed $650,234.25.

In post-conviction proceedings, the United States sought to enforce the restitution judgment pursuant to 18 U.S.C. .§ 3613, which permits the government to enforce a restitution judgment “in accordance with the practices and procedures for the enforcement of a civil judgment.” The government served citations to The Vanguard Group (“Vanguard”) and Aetna, Inc. (“Aet-na”) to discover assets in Sayyed’s retirement accounts. After receiving answers, the government filed a motion for turnover orders alleging that the companies possessed retirement accounts with approximately $327,000 in non-exempt funds that could be used to satisfy the judgment. Sayyed responded to the government’s motion arguing that his retirement accounts were exempt “earnings” subject to the 25% garnishment cap of the Consumer Credit Protection Act (the “CCPA”).

The district court granted the government’s motion, finding that because Sayyed, who was 48-years-old at the time, had the right to withdraw the entirety of his accounts at will, the funds were not “earnings” and so were not exempt under the CCPA. The district court directed Vanguard and Aetna to pay the Clerk of Court the liquidated value of the funds and ordered the Clerk to reserve a portion of the funds in escrow for the income tax consequences of the early withdrawal.

II. ANALYSIS

“The district court’s turnover order is a final judgment, which we review de novo.” Maher v. Harris Trust & Sav. Bank, 506 F.3d 560, 561 (7th Cir. 2007) (quotation and citation omitted). We have previously held that a district court may enforce restitution fines against a defendant’s retirement account, pursuant to 18 U.S.C. § 3613(a). See United States v. Lee, [618]*618659 F.3d 619, 621 (7th Cir. 2011); United States v. Hosking, 567 F.3d 329, 335 (7th Cir. 2009). 18 U.S.C. § 3613(a) states that “a judgment imposing a fíne may be enforced against all property or rights to property of the person fined.” However, enforcement is subject to Section 303 of the CCPA, which creates a garnishment ceiling of 25% of a debtor’s disposable earnings for a week. 18 U.S.C. § 3613(a)(3); see 15 U.S.C. § 1673(a)(1).

Sayyed contends that the funds in his retirement accounts meet the CCPA’s definition of “earnings” and so are subject to the 25% garnishment cap. Sayyed does not dispute the district court’s conclusion that he has a present right to receive the entire balance of his retirement accounts. Instead, he offers three arguments to assert that the CCPA’s garnishment cap applies to his retirement accounts. First, he asserts that Lee, 659 F.3d 619, held all retirement funds are “earnings” subject to the garnishment cap. He then argues that even if lump-sum distributions from a retirement account are not subject to the garnishment cap, the government must wait until he reaches retirement age and elects a form of distribution (ie., lump-sum distribution or periodic payments) before deciding whether the CCPA’s garnishment cap applies in his case. Finally, Sayyed contends that his retirement funds meet the definition of “earnings” because the accounts are funded directly by his earned wages. These arguments fail for the reasons explained below.

A. Not all retirement funds are “earnings”

Sayyed erroneously attempts to enlarge our holding in United States v. Lee, 659 F.3d 619, 621 (7th Cir. 2011), by arguing we held that all retirement funds are “earnings” subject to the 25% garnishment cap. Lee’s holding, however, is much narrower: we only held that annual periodic payments from the defendant’s retirement accounts met the definition of “earnings” subject to the 25% garnishment cap, as the CCPA expressly defines “periodic payments pursuant to a pension or retirement program” as “earnings.” Id.; see 15 U.S.C. § 1672(a). In fact, in Lee, the parties “agree[d] that any lump sum distribution [that Lee] may receive from the plans [would be] subject to turnover[.]” Id. at 621. So, a defendant’s present ability to access a lump-sum distribution of his entire retirement account was not at issue in Lee. In other words, Lee applies only to the government’s ability to access funds periodically paid out from a retirement fund, not the government’s ability to access a lump-sum payment of funds contained within a retirement account, as is the issue here.

B. Government can seize Sayyed’s present right to distribution of funds

Sayyed next argues that the court must wait nearly twenty years, until he reaches the age at which he can begin receiving penalty-free distributions from his retirement accounts, to see whether he elects to receive lump sum distributions of his entire accounts or if he elects periodic payments before the court decides the applicability of the CCPA’s garnishment cap. But he fails to show any support, in Lee or elsewhere, for this sweeping proposition.

Instead, a restitution order is a lien in favor of the government on “all property and rights to property” of the defendant and is treated as if it were a tax lien. 18 U.S.C.

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Bluebook (online)
862 F.3d 615, 2017 WL 2870995, 2017 U.S. App. LEXIS 12030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sayyed-ca7-2017.