United States v. Witham

Opinion

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

DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Criminal No. 00-cr-17-2-SM Opinion No. 2 010 DNH 096 Wayne S. Witham, Defendant

O R D E R

Under the provisions of 18 U.S.C. § 3663A, defendant's

sentence included a mandatory order of full restitution, "without

consideration of the economic circumstances of the defendant."

18 U.S.C. § 3664(f)(1)(A). A restitution order, however, must

also specify "the manner in which, and the schedule according to

which, the restitution is to be paid," 18 U.S.C. § 3664(f)(2),

taking into account the defendant's financial resources,

projected earnings, and financial obligations, 18 U.S.C.

§ 3664(b) (2) (A)- (C) .

Defendant's original judgment included an order to pay

restitution in the total amount of $800,000, plus interest.

(Document no. 14). Thereafter, the court approved a recommended

payment schedule requiring defendant to pay restitution in the

amount of $200 per month, until his obligation was paid in full.

Defendant was later sanctioned for violating the terms of his

supervised release. The resulting judgment reimposed restitution in the amount of $785,484.82, to be paid periodically in an

amount and on a schedule to be recommended by the probation

office and approved by the court. (Document no. 2 6.) The

government points out that the record suggests that the probation

office never recommended a second payment schedule for the

court's approval.

A payment schedule implementing a restitution order is

subject to modification. See 18 U.S.C. § 3664(h). Given the

absence of a recommended payment schedule, and having heard

relevant evidence on January 5, 2010, the court orders defendant

to pay $200 per month toward his restitution obligation, until

such time as that obligation is paid in full. Moreover,

defendant "shall notify the court and the Attorney General of any

material change in [his] economic circumstances that might affect

[his] ability to pay restitution." Id. And, of course, any

party (defendant, victim or government) may move to adjust the

payment schedule on grounds that a change is warranted by

defendant's economic circumstances. See id.

SO ORDERED.

Steven J. /McAuliffe Chief Judge

June 4, 2 010

2 cc: Michael T. McCormack, AUSA Seth R. Aframe, AUSA Robert J. Veiga, AUSA U.S. Probation Wayne S. Witham, pro se