United States v. Witham

2010 DNH 099

• Court: District Court, D. New Hampshire
• Decided: January 28, 2010
• Docket: 00-CR-017-SM
• Status: Published

Opinion

United States v. Witham 00-CR-017-SM 01/28/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 00-cr-17-2-SM Opinion No. 2010 DNH 099 Wavne S. Witham

and

Siemens Generation Services Co., As Garnishee

FINAL ORDER OF CONTINUING GARNISHMENT

An order of restitution was imposed as part of defendant's

criminal sentence. The original mandatory obligation was set at

$800,000.00, plus interest, less payments made by other obligors.

Currently, the principal balance owed is $776,968.82. Interest

is accumulating at an annual rate of 6.241%. The current

interest balance due is $445,176.93, or thereabouts, and the

total restitution obligation has now escalated to $1,222,145.75.

Defendant is employed, through a union, as a millwright on a

contract basis. His employment is somewhat irregular in that he

generally obtains work at different job sites for approximately

ten months or so per year. He draws unemployment compensation

during the other months. Some years he is assigned more work,

some years less. When he is assigned to a job, however, it is nearly always at a site some distance from his home, usually out-

of-state. Defendant must pay travel and living expenses, over

and above a modest per diem allowance (sometimes $40.00,

sometimes $80.00), when working away from home (which he has to

"front" until his first paychecks arrive).

Including per diem allowances, defendant normally can expect

to gross between $50,000.00 and $60,000.00 per year, though in

2009 (his best year) he had gross income of $91,000.00. Needless

to say, defendant cannot pay the restitution due in full, and

there is no reasonable chance of his paying even a substantial

portion of the obligation in the future. Indeed, the

accumulating interest virtually guarantees that the restitution

obligation will simply grow exponentially until the collections

period expires, even if his earnings were garnished to the full

extent allowed by law.

Considering defendant's current financial circumstances,

including his average income during recent years, his reasonable

living expenses, obligation to travel to work sites out-of-state,

and to underwrite his living expenses while away from home, his

family support obligations, and reasonable expenses for rent,

food, transportation, insurance, utilities, and clothing, the

government's plea for 20 percent of defendant's weekly non-exempt

2 disposable earnings (a payment of $1,350.00 per month, as

calculated by the government), is too high.

While on supervised release, defendant was obligated to pay

$200.00 per month (apparently based upon gross income of

approximately $60,000.00 per year). That figure was determined

to be reasonable by the United States Probation Office, and

imposed no undue financial hardship, particularly given that

defendant's income fluctuates, averaging well below the

$91,000.00 he earned in 2009. Defendant did not honor that

obligation with any regularity, and, supervised release having

terminated, the government had little reason to think defendant

would change course and make voluntary payments, hence this

garnishment action.

A court may, at any time, "make an order denying, limiting,

conditioning, regulating, extending, or modifying the use of" any

debt collection procedure, including garnishment. 28 U.S.C.

§ 3013; see United States v. Qqburn, 4 99 F. Supp. 2d 2 8 (D.D.C.

2007). In exercising its discretion under Section 3013, concepts

of reasonableness should be applied. Qqburn, at 30. Here, a

reasonable starting point is recoupment of $800.00 in back

payments currently being held by the garnishee and enforcement,

by garnishment, of the required restitution payment schedule

3 previously recommended by the Probation Office. While more could

arguably be taken from defendant without imposing "undue"

hardship and without destroying all incentive for him to continue

working productively to support himself and his family, $200.00

per month is fair, reasonable, and practical, and serves the

legitimate societal interest in obtaining as full a recovery for

the victim as possible, but consistent with defendant's

rehabilitation, the need for him to be self-sufficient, and his

obligations of support. Should defendant's circumstances change

appreciably, the order can be amended as appropriate.

Having fully considered the matter, the court enters the

following order:

The Garnishee shall pay to plaintiff all monies currently in

Garnishee's possession and held pursuant to this court's order

dated November 30, 2009. The Garnishee shall retain, and pay to

plaintiff, $50.00 weekly ($200.00 monthly) from defendant's

weekly non-exempt disposable earnings and continue said payments

pending further order of the court. Said payments shall be made

payable to Clerk, United States District Court, 55 Pleasant

Street, Concord, New Hampshire 03301.

4 It is further ordered that defendant shall keep the United

States Attorney's Office informed, in writing, of any change in

his employment (including changes in wages, work site, payor),

place of residence, and telephone number. Defendant shall also

file, annually, either a financial statement in a form acceptable

to the United States Attorney, under oath, or a copy of his

federal income tax return, at the election of the United States

Attorney. Defendant shall mail or deliver the required filings

and information to the United States Attorney's Office, 53

Pleasant Street, 4th Floor, Concord, New Hampshire 03301.

SO ORDERED.

Steven J./McAuliffe Chief Judge

January 28, 2010

cc: Michael T. McCormack, Esq. Robert J. Veiga, Esq. Wayne S. Witham, pro se Siemens Generation Services Co. 3501 Quadrangle Blvd., Suite 175 Orlando, EL 32817