United States v. Witham

2010 DNH 098

Opinion

United States v. Witham 00-CR-017-SM 03/29/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 00-cr-17-2-SM Opinion No. 2010 DNH 098 Wavne S. Witham

and

Siemens Generation Services Co., As Garnishee

O R D E R

This is a criminal restitution collection action. The

government is proceeding under the Federal Debt Collection

Procedures Act ("FDCPA"), seeking garnishment of the defendant's

wages as a means of enforcing a restitution order requiring him

to compensate a private victim for losses occasioned as a result

of his criminal conduct.

The court determined an amount subject to garnishment based

on several factors, and the government moved the court to

reconsider its order. Having considered that motion and the

government's supporting memorandum, several additional, and

potentially dispositive, but as yet unaddressed, legal issues

occurred to the court. Those issues warrant briefing by the

parties. The government shall thoroughly research and brief, with

appropriate citations to applicable legal authority, the issues

specified below. The defendant is acting pro se and has amply

demonstrated that he is not able to produce useful legal

memoranda. Accordingly, although he is more than welcome to file

a responsive brief in the time allotted, he is not required to do

so. (Indeed, should this matter proceed much further, the court

will consider appointing counsel for defendant under the

ancillary proceedings provisions of the Criminal Justice Act.)

The government shall, and defendant may, brief the following

issues within thirty (30) days of the date of this order:

1. Whether the criminal judgment imposing a restitution

obligation includes or incorporates the payment schedule set

out in the restitution order? See 18 U.S.C. §§ 3664(f)(1)

and (2).

2. If not, whether the restitution order itself restricts

application of a writ of garnishment of wages to the amount

and schedule set out in the restitution order?

3. Whether the government may garnish wages in excess of the

amount specified in a payment schedule set out in a

2 restitution order without first successfully moving to

adjust the payment schedule (18 U.S.C. § 3664(k)) and/or

noticing a default (18 U.S.C. §§ 3572 and 3613(A))? (Note:

the 2005 Attorney General Guidelines for Victim and Witness

Assistance seem to suggest that collection remedies under

the FDCPA are appropriate following a default).

4. Whether, in this circuit, garnishment under the FDCPA is a

collection remedy not available to the government when, as

here, the recovery is sought on behalf of a private party,

and the United States has no direct pecuniary interest in

the amounts sought to be recovered? See United States v.

Bonqiorno, 106 F.3d 1027 (1st Cir. 1997); United States v.

Rostoff, 164 F.3d 63 (1st Cir. 1999); United States v.

Timiltv, 148 F.3d 1 (1st Cir. 1998).

5. Assuming, arguendo, that the government's restitution

collection efforts in this case must comply with the

procedures prescribed by the State of New Hampshire (Fed. R.

Civ. P. 69), what standards apply under applicable state law

with respect to determining whether, and in what amount,

wages may be garnished in satisfaction of a restitution

order?

3 SO ORDERED.

McAuliffe "hief Judge

March 29, 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