United States v. Witham

Opinion

United States v. Witham 00-CR-017-SM 07/20/10 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 119 Wavne S. Witham, Defendant

O R D E R

Acting pro se, Wayne S. Witham moves to vacate (or modify)

an order of restitution imposed as part of his criminal sentence

(document no. 59). He offers several grounds in support of the

motion, including that he has experienced a drastic change in his

economic circumstances, is no longer employed, receives no

unemployment benefits, lacks adequate reserve funds to sustain

himself, and is indigent.

The government objects in part (document no. 64), correctly

noting that the restitution order itself cannot be vacated, but

acknowledging that changed circumstances could support a

modification of the periodic payment requirement. Witham alleges

facts sufficient to support a motion to modify the periodic

payment order (currently set at $200.00 per month), and claims

that he "has no means to produce $200.00 per month as ordered for

1 July 2010 and each month thereafter." While the restitution order cannot be vacated, the periodic payment schedule is subject

to adjustment. See 18 U.S.C. § 3664(c). If, as he asserts,

Witham is no longer employed and is without income or other

assets, an adjustment may well be appropriate.

The clerk shall schedule a hearing at which Witham will be

obligated to bear the burden of establishing, by a preponderance

of the evidence, his inability to comply with the periodic

payment order currently in effect, as well as his current

financial circumstances and ability to make periodic payments.

See 18 U.S.C. § 3664(e).

SO ORDERED.

Smeven j/ McAuliffe Chief Judge

July 20, 2010

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