USA v. Bartlett CR-93-081-M 02/24/95 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 93-81-01-M
Clyde S. Bartlett, Jr.
ORDER ON MOTION FOR STAY
On November 18, 1994, the court imposed a sentence that
included a fine in the amount of $100,000.00, and an order of
restitution in the amount of $600,603.00. The defendant now
moves the court to stay the immediate payment of monetary
penalties imposed against him until a reasonable time following
the completion of his period of incarceration.
Although the defendant has recently undergone bankruptcy
proceedings, faces a nondischargeable civil judgment in excess of
four million dollars, and has been provided appointed counsel
based upon an affidavit of indigency, the court nevertheless
found that the defendant did not meet his burden of demonstrating
his financial resources or his dependents' needs. U.S.S.G.
§5E1.1, Background Comments; U.S.S.G. §5E1.2(d); see United
States v. Bradley, 922 F.2d 1290, 1298 (6th Cir. 1991) ("The record is clear, however, that the defendant did not carry his
burden of showing that he was unable to pay his fines imposed by
the District Court.") overruled on other grounds by United States
v. McGlocklin, 8 F.3d 1037 (6th Cir. 1993); United States v.
Marquez, 941 F.2d 60, 65 (2nd Cir. 1991) ("It would thus appear
that the Guidelines as presently clarified require a defendant
seeking to avoid a fine on grounds of financial inability to come
forward with evidence of that inability . .
Specifically, the defendant failed to cooperate in making
full financial disclosure to the United State Probation Officer
assigned to complete the presentence investigation report and, in
so doing, gave the court no meaningful basis upon which to
evaluate his actual financial resources or to determine the
extent to which he may have hidden assets by transferring them to
his wife, or otherwise. See, e.g., paragraphs 62 and 63,
Presentence Investigation Report; 18 U.S.C. §3664; U.S.S.G.
§5E1.2(a) Z
1 Curiously, the defendant did not object to Paragraphs 62 and 63 of the Presentence Report (which specifically noted that he failed to provide the Probation Officer with requested financial information), and although he filed an Objection to Presentence Report in which he very generally claimed an inability to pay restitution (5 4), defendant did not present evidence or argue that inability at sentencing, nor did he
2 Defendant had several opportunities to present evidence in
support of his claimed inability to pay financial sanctions, but
chose instead to rely upon a general but unsubstantiated claim of
impecuniosity. During the sentencing hearing, after imposing the
fine and restitution order, the court specifically stated that:
"If the defendant believes that he is unable to pay the fine or
make restitution he must submit a detailed financial affidavit to
the Court within 30 days for further consideration on the fine
and restitution order."2
specifically object to the court's imposition of a fine and restitution order after the court announced the sentence it intended to impose but before imposing it, nor did he avail himself of the opportunity to file a detailed financial affidavit within 30 days as provided at sentencing "[i]f [he] believes that he is unable to pay the fine or make restitution." In his notice of appeal, defendant specified issues he intends to raise, but did not claim the fine or restitution order was contrary to law. Given the absence of any detailed and reliable financial evidence, the court is unwilling to speculate regarding the defendant's motives, actions, or actual financial circumstances. Suffice it to say that defendant's conduct speaks for itself: to date, for reasons apparently satisfactory to him, he has declined to demonstrate an inability to pay the financial sanctions imposed.
2 Because the defendant did not take the opportunity to file the financial affidavit suggested by the court at sentencing, the court did not have to address the extent to which it might have amended or corrected its sentence once the seven- day period referenced in Fed.R.Grim.P. 35(c) had lapsed.
3 Rather than cooperating, demonstrating genuine financial
inability, and filing a detailed financial affidavit, the
defendant instead filed a motion for stay of judgment, supported
by a vague affidavit in which he argues that his present negative
net worth, the general needs of his children to whom he pays
child support, and his incarceration, all militate in favor of
staying the judgment as to immediate payment of the monetary
sanctions imposed and establishing a feasible post-release
payment schedule. Because defendant has still not filed the
detailed financial affidavit reguired, and continues to decline
to cooperate with the probation officer by disclosing the nature
and amounts of income earned by the corporation established in
his wife's name for the purpose of hiring out his own personal
sales services, the court declines to speculate, on incomplete
information, about the defendant's actual financial circumstances
and will continue to resolve all doubt against him, finding,
again, that he has failed to carry his burden of demonstrating an
inability to pay the sanctions imposed. See United States v.
Beni amin, 30 F.3d 196, 199 (1st Cir. 1994) (defendant failed to
produce evidence in support of his reguest that district court
reduce restitution order); United States v. Lombardi, 5 F.3d 568,
572-73 (1st Cir. 1993) ("On this record, we think that the
4 district court could fairly conclude that [the defendant] had not
long before been in possession of sums ample to pay the
$60,000.00 fine and that their absence had not been adequately
explained. A defendant has little incentive to help in an
inventory of his assets, and a busy federal judge is not required
to conduct an audit before imposing a fine.").
The defendant may or may not have hidden assets. He may or
may not have a greater ability to pay a fine and restitution than
he portrays, and may or may not have substantial financial
expectancies which he would rather not disclose. Absent full and
complete disclosure and cooperation by defendant, however, the
court must assume that he does have such assets, abilities, and
expectancies and, therefore, is not demonstrably unable to pay
the sanctions imposed. United States v. Springer, 28 F.3d 236,
238-39 (1st Cir. 1994); see United States v. Mcllvain, 967 F.2d
1479, 1481 (10th Cir. 1992) ("A defendant's present indigency,
however, does not bar a restitution order where the evidence
indicates a defendant has some assets or earning potential and
thus possibly may be able to pay the amount ordered."); United
States v.
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USA v. Bartlett CR-93-081-M 02/24/95 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 93-81-01-M
Clyde S. Bartlett, Jr.
ORDER ON MOTION FOR STAY
On November 18, 1994, the court imposed a sentence that
included a fine in the amount of $100,000.00, and an order of
restitution in the amount of $600,603.00. The defendant now
moves the court to stay the immediate payment of monetary
penalties imposed against him until a reasonable time following
the completion of his period of incarceration.
Although the defendant has recently undergone bankruptcy
proceedings, faces a nondischargeable civil judgment in excess of
four million dollars, and has been provided appointed counsel
based upon an affidavit of indigency, the court nevertheless
found that the defendant did not meet his burden of demonstrating
his financial resources or his dependents' needs. U.S.S.G.
§5E1.1, Background Comments; U.S.S.G. §5E1.2(d); see United
States v. Bradley, 922 F.2d 1290, 1298 (6th Cir. 1991) ("The record is clear, however, that the defendant did not carry his
burden of showing that he was unable to pay his fines imposed by
the District Court.") overruled on other grounds by United States
v. McGlocklin, 8 F.3d 1037 (6th Cir. 1993); United States v.
Marquez, 941 F.2d 60, 65 (2nd Cir. 1991) ("It would thus appear
that the Guidelines as presently clarified require a defendant
seeking to avoid a fine on grounds of financial inability to come
forward with evidence of that inability . .
Specifically, the defendant failed to cooperate in making
full financial disclosure to the United State Probation Officer
assigned to complete the presentence investigation report and, in
so doing, gave the court no meaningful basis upon which to
evaluate his actual financial resources or to determine the
extent to which he may have hidden assets by transferring them to
his wife, or otherwise. See, e.g., paragraphs 62 and 63,
Presentence Investigation Report; 18 U.S.C. §3664; U.S.S.G.
§5E1.2(a) Z
1 Curiously, the defendant did not object to Paragraphs 62 and 63 of the Presentence Report (which specifically noted that he failed to provide the Probation Officer with requested financial information), and although he filed an Objection to Presentence Report in which he very generally claimed an inability to pay restitution (5 4), defendant did not present evidence or argue that inability at sentencing, nor did he
2 Defendant had several opportunities to present evidence in
support of his claimed inability to pay financial sanctions, but
chose instead to rely upon a general but unsubstantiated claim of
impecuniosity. During the sentencing hearing, after imposing the
fine and restitution order, the court specifically stated that:
"If the defendant believes that he is unable to pay the fine or
make restitution he must submit a detailed financial affidavit to
the Court within 30 days for further consideration on the fine
and restitution order."2
specifically object to the court's imposition of a fine and restitution order after the court announced the sentence it intended to impose but before imposing it, nor did he avail himself of the opportunity to file a detailed financial affidavit within 30 days as provided at sentencing "[i]f [he] believes that he is unable to pay the fine or make restitution." In his notice of appeal, defendant specified issues he intends to raise, but did not claim the fine or restitution order was contrary to law. Given the absence of any detailed and reliable financial evidence, the court is unwilling to speculate regarding the defendant's motives, actions, or actual financial circumstances. Suffice it to say that defendant's conduct speaks for itself: to date, for reasons apparently satisfactory to him, he has declined to demonstrate an inability to pay the financial sanctions imposed.
2 Because the defendant did not take the opportunity to file the financial affidavit suggested by the court at sentencing, the court did not have to address the extent to which it might have amended or corrected its sentence once the seven- day period referenced in Fed.R.Grim.P. 35(c) had lapsed.
3 Rather than cooperating, demonstrating genuine financial
inability, and filing a detailed financial affidavit, the
defendant instead filed a motion for stay of judgment, supported
by a vague affidavit in which he argues that his present negative
net worth, the general needs of his children to whom he pays
child support, and his incarceration, all militate in favor of
staying the judgment as to immediate payment of the monetary
sanctions imposed and establishing a feasible post-release
payment schedule. Because defendant has still not filed the
detailed financial affidavit reguired, and continues to decline
to cooperate with the probation officer by disclosing the nature
and amounts of income earned by the corporation established in
his wife's name for the purpose of hiring out his own personal
sales services, the court declines to speculate, on incomplete
information, about the defendant's actual financial circumstances
and will continue to resolve all doubt against him, finding,
again, that he has failed to carry his burden of demonstrating an
inability to pay the sanctions imposed. See United States v.
Beni amin, 30 F.3d 196, 199 (1st Cir. 1994) (defendant failed to
produce evidence in support of his reguest that district court
reduce restitution order); United States v. Lombardi, 5 F.3d 568,
572-73 (1st Cir. 1993) ("On this record, we think that the
4 district court could fairly conclude that [the defendant] had not
long before been in possession of sums ample to pay the
$60,000.00 fine and that their absence had not been adequately
explained. A defendant has little incentive to help in an
inventory of his assets, and a busy federal judge is not required
to conduct an audit before imposing a fine.").
The defendant may or may not have hidden assets. He may or
may not have a greater ability to pay a fine and restitution than
he portrays, and may or may not have substantial financial
expectancies which he would rather not disclose. Absent full and
complete disclosure and cooperation by defendant, however, the
court must assume that he does have such assets, abilities, and
expectancies and, therefore, is not demonstrably unable to pay
the sanctions imposed. United States v. Springer, 28 F.3d 236,
238-39 (1st Cir. 1994); see United States v. Mcllvain, 967 F.2d
1479, 1481 (10th Cir. 1992) ("A defendant's present indigency,
however, does not bar a restitution order where the evidence
indicates a defendant has some assets or earning potential and
thus possibly may be able to pay the amount ordered."); United
States v. Rowland, 906 F.2d 621, 624 (11th Cir. 1990) ("Evidence
that a defendant has failed to disclose the existence of assets
5 to the court, may support a determination that the defendant is
able to pay a fine with those undisclosed assets.").
Certainly, the defendant has a demonstrated ability to earn
in excess of $200,000. per year, and he appears to have been a
creative, industrious and successful businessman. Upon his
release from incarceration, the defendant can reasonably be
expected to earn sufficient sums to pay the sanctions imposed.
United States v. Brandon, 17 F.3d 409, 461 (1st Cir. 1994) cert.
denied sub nom, Granoff v. United States, 130 L. Ed. 2d 34, 115
S. C t . 80 (1994), and, during his period of incarceration, at
least some of his potential earnings can be designated by the
Bureau of Prisons for application to the penalties imposed.
Accordingly, defendant's motion for stay of judgment
(document no. 30) is denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
February 24, 1995
6 cc: Michael C. Shklar, Esq. United States Attorney United States Marshal United States Probation