United States v. Witham

2010 DNH 097P

Opinion

United States v. Witham 00-CR-017-SM 06/04/10 P UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Criminal No. 00-cr-17-2-SM Opinion No. 2010 DNH 097P Wavne S. Witham, Defendant

and

Siemens Generation Services Co., Garnishee

O R D E R

This is an ancillary proceeding in which the government,

pursuant to the Mandatory Victim Restitution Act ("MVRA"),

18 U.S.C. §§ 3556 and 3664, seeks to collect restitution from the

defendant, using procedures established by the Federal Debt

Collection Procedures Act ("FDCPA"), 28 U.S.C. §§ 3001 et seq.

Previously, to effect collection of the restitution owed, the

court entered an order garnishing defendant's wages (document no.

42). The government moved to reconsider that order, claiming

defendant's wages should have been garnished in a greater amount.

The court granted that motion, but directed the government to

thoroughly brief five specified legal issues. The government has

responded. The fourth issue on which the court required briefing was:

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 amount sought to be recovered?

The United States Court of Appeals for the First Circuit has

held that the Federal Debt Collection Procedures Act is not

available to the government when, as here, it seeks to collect

restitution owed to a private victim. United States v.

Bonaiorno, 106 F.3d 1027 (1st Cir. 1998); see United States v.

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

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

In Bonaiorno, the court of appeals determined that:

. . . [OJther types of restitution, which, when paid, will not increase public revenues (say, restitution to an individual victim of a crime), do not come within the [FDCPA's] statutory encincture. In short, we cannot isolate a single word — "restitution" — and conclude that every order bearing that label automatically falls within the FDCPA's grasp. The federal government may collect under the FDCPA only restitution that is "owing to the United States." 28 U.S.C. § 3002 (3) .

Bonaiorno, 106 F.3d at 1039. Here, as in Bonaiorno, the

restitution debt is not owed to the United States, but to a

private party. It would seem to follow, then, that, under

2 controlling circuit precedent, this defendant's restitution debt

cannot be collected by the government via the FDCPA.

Government counsel did not mention the Bonqiorno issue in

any prior pleadings, and does not concede that it is controlling.

Counsel suggest, rather, that either the court of appeals was

unaware of the Mandatory Victim Restitution Act when it decided

Bonqiorno, Timiltv, and Rostoff, or that the court of appeals did

not mention the MVRA's provisions because the Act was

inapplicable to those cases, as it became effective after the

lower courts had entered orders of restitution (but well before

the court of appeals considered available enforcement

procedures). The government also points to language in the MVRA

that, it says, effectively nullifies those post-MVRA decisions.

The government argues, essentially, that:

[BJecause the MVRA provides that the United States may collect fines and restitution in the same manner, and the United States may collect a fine through the FDCPA, the United States may also use FDCPA remedies to collect restitution obligations owed to private victims.

(Document no. 49, at 7.) The substantive MVRA provisions upon

which the government relies, however, are not new. Virtually

identical provisions were part of the Victim and Witness

Protection Act ("VWPA"), 18 U.S.C. § 3663-3664. Like the MVRA,

3 the VWPA also (1) authorized the government to enforce

restitution orders in the same manner used to collect fines, see

18 U.S.C. § 3663(h)(1)(A) (repealed 1996); and (2) authorized the

government to execute against the property of a person fined "in

like manner as judgments in civil cases," 18 U.S.C. § 3613(e)

(1994). The VWPA also provided that orders of restitution could

be enforced in the same manner as a judgment in a civil action.

See 18 U.S.C. § 3663(h) (1) (B) (repealed 1996) . As it does here

with respect to the MVRA, the government previously argued that

those similar VWPA provisions necessarily incorporated and made

the FDCPA's procedures available to the government when

collecting restitution owed to private parties.

That argument was specifically addressed and rejected by the

court in Bonqiorno, and the court has not since varied from that

decision.1 Seeking rehearing by the panel and, alternatively,

rehearing en banc in Bonqiorno, the government stressed that

because the VWPA authorized the United States to enforce a

restitution order "in the same manner as a judgment in a civil

1 The government's characterization of the opinion in United States v. Hyde, 497 F.3d 103 (1st Cir. 2007) as authorizing government use of FDCPA procedures to collect private restitution under the MVRA is not persuasive. The court of appeals did not consider the issue in any respect, and the opinion hardly makes it clear that the government sought enforcement of the restitution order using FDCPA procedures. The issue was neither litigated by the parties nor decided by the court.

4 action," it should be construed as effectively incorporating the

FDCPA's procedures into 18 U.S.C. § 3663(h). The court of

appeals, denying both rehearing by the panel and rehearing

en banc, explained that the government's argument begged the

dispositive question:

Second, even if we were to consider them, the government's substantive arguments relating to the VWPA in no way blunt the force of the panel opinion. In the last analysis, the government's point is little more than an ipse dixit. Declaring that the FDCPA is incorporated into 18 U.S.C. § 3663(h) by the language that the United States may enforce an order of restitution "in the same manner as a judgment in a civil action" beers the question of the procedures available to the government in collecting civil iudqments . . . .

Since we already have determined that a restitution order [benefitting a private party] is not a debt owing to the Untied States within the meaning of the FDCPA [internal reference omitted], the FDCPA statute is therefore inapplicable in this instance. Put another way, given the nature of the underlying debt, the FDCPA is simply not an "applicable" federal statute.

United States v. Bonqiorno, 110 F.3d 132, 133-34 (1st Cir. 1997)

(emphasis added).

The current theory urged by the government seems to be that,

while the court of appeals determined that the VWPA's provisions

did not permit use of FDCPA procedures to collect restitution

owed private parties, the MVRA's substantively identical

provisions do. That argument ignores the fundamental holding in

5 Bonqiorno, which authoritatively determined the FDCPA's scope

and, consequently, its availability to collect monies owed

private victims (i.e., monies not "owed to the United States").

The MVRA (like the VWPA) provides that "an order of

restitution may be enforced by the United States in the manner

provided for in . . . subchapter B of Chapter 229 of this title,"

18 U.S.C. § 3664(m)(1)(a)(i). Subchapter B, in turn, provides

that "[t]he United States may enforce a judgment imposing

[restitution] in accordance with the practices and procedures for

the enforcement of a civil judgment under Federal law or State

law." 18 U.S.C. § 3613(a). The government's contention that the

referenced MVRA provisions incorporate and make the FDCPA's

collection procedures available to collect restitution owed to

private parties begs the very same question discussed in

Bonqiorno.

The critical question is not whether the MVRA authorizes the

government to collect private restitution in any manner

authorized by applicable law — it plainly does. Rather, under

this circuit's precedent, the dispositive question is whether the

FDCPA's procedures are available to the government under federal

law when it seeks to collect restitution owed to a private party.

Bonqiorno, Timiltv, and Rostoff say that they are not:

6 In Bonqiorno, we held, however, that certain restitution debts did not qualify for collection using the FDCPA. We identified the relevant inquiry as being "aimed at determining to whom the debt is owed and to whose benefit the proceeds of the debt will inure when paid." Bonqiorno, 106 F.3d at 1037. Thus, only restitution debts owed to the United States may be collected via the FDCPA. See id.at 1039.

Rostoff, 164 F.3d at 69 (emphasis in original).

Applying Bonqiorno's analysis, while it is plain that the

MVRA authorizes the government to collect restitution owed to

private parties using available civil remedies, it is equally

plain that the FDCPA's procedures are not available for that

purpose. As noted in Rostoff, the FDCPA's collection procedures

are available to the government only when it seeks to collect

judgments in which the United States has a pecuniary interest.

As the government points out, other circuits have reached a

different conclusion. See, e.g.. United States v. Mays, 430 F.3d

963 (9th Cir. 2005); United States v. Kollintzas, 501 F.3d 796

(7th Cir. 2007); United States v. Phillips, 303 F.3d 548 (5th

Cir. 2002). While those decisions generally hold that the

government can use FDCPA procedures to collect restitution debts

owed to private parties, they do not discuss the dispositive

issue identified in Bonqiorno — that restitution owed to a

private party is not "owed to the United States" within the

7 meaning of the FDCPA. In Phillips, by way of illustration, the

Fifth Circuit focused on construing the MVRA's provisions, and

not those of the FDCPA (as the First Circuit did in Bonqiorno).

In a subsequent case, the Fifth Circuit made it clear that it

recognized Bonqiorno as being unreconcilable with its Phillips

decision ("we have previously declined to follow Bonqiorno [in

Phillips 1 when we held that the government may use the FDCPA to

collect restitution owed under the MVRA"), and, that its Phillips

decision "turned not on the FDCPA, but on the MVRA, which we

interpreted as independently authorizing the government to use

the FDCPA to collect restitution for [private] victims."

Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr. Corp., 50 9

F.3d 216, 227 n.34 and 225 (5th Cir. 2007). Essentially, the

contrary precedent from other circuits has not recognized, as the

First Circuit has, that the FDCPA, by its own terms, is not

applicable to or available for use in collecting restitution for

private parties; it is only available to collect monies owed to

the United States.

While reasonable minds can differ with respect to these

issues, this court is unarguably duty-bound to follow and apply

First Circuit precedent over conflicting precedent from other

circuits. Accordingly, as in Bonqiorno, the order of continuing

garnishment was improvidently entered pursuant to the FDCPA in

this case, and it must be vacated. The government is free, of

course, to seek amendment or enforcement of the restitution order

by resort to available civil remedies. The other specified

questions briefed by the government need not be resolved, at this

juncture, given the resolution of this specified issue.

Conclusion

The order of continuing garnishment (document no. 42) is

hereby VACATED.

SO ORDERED.

Steven J./McAuliffe Chief Judge

June 4, 2 010

cc: Michael T. McCormack, AUSA Seth R. Aframe, AUSA Robert J. Veiga, AUSA Wayne S. Witham, pro se U.S. Probation Siemens Generation Services Co. 3501 Quadrangle Blvd., Suite 175 Orlando, FL 32817