518 F.3d 285 (5th Cir. 2007)

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U.S. v. Ekong

United States Court of Appeals, Fifth Circuit

Dec 21, 2007

518 F.3d 285 (5th Cir. 2007)

Summary

holding that a criminal judgment specifying a restitution payment plant does not prevent the Government from requiring immediate payment by garnishment

Summary of this case from United States v. Wilson

See 25 Summaries

Opinion

No. 06-11185 Summary Calendar.

December 21, 2007.

Richard B. Vance, Megan J. Fahey, Fort Worth, TX, for U.S.

Affiong Ekong, Richardson, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:

Affiong Ikpeme Ekong, federal prisoner # 31386-177, was convicted of health care fraud and was ordered to pay restitution in the amount of $896,737. The Government filed an application for writ of garnishment upon Ekong's interest in pension benefits held by the Dallas County Hospital District, Supplemental Retirement Plan (the Plan). The district court ordered that the writ of garnishment be issued. On August 29, 2005, the Plan answered, admitting that it held, for the benefit of Ekong, employer matching funds in the amount of $19,745.58, which were immediately distributable. Ekong timely filed her opposition to the application for writ of garnishment. The district court denied Ekong's objections and entered a final order of garnishment. Ekong gave timely notice of her appeal.

Ekong has moved for appointment of counsel. The motion is DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

Ekong contends that there was no justification for requiring immediate payment because the criminal judgment specified that restitution be paid in installments. This argument is without merit. "The [Mandatory Victim Restitution Act (MVRA)] provides the Government authority to enforce victim restitution orders in the same manner that it recovers fines and by all other available means" and, under 18 U.S.C. § 3613(a), it may collect "restitution `in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law,'" including the Federal Debt Collection Procedures Act of 1990. United States v. Phillips, 303 F.3d 548, 550-51 (5th Cir. 2002). The attorney general is required by the MVRA to enforce victim restitution orders "aggressively." Id. at 551. There is nothing in the criminal judgment to the contrary.

Ekong contends that the Government failed to comply with 28 U.S.C. § 3205(b)(1)(B), by making demand for payment more than 30 days prior to seeking the writ of garnishment. In its response to Ekong's objections to the application for writ of garnishment, the Government showed that demand for payment was mailed to Ekong on November 16, 2004, which was more than 30 days prior to the filing of the application for writ of garnishment on April 25, 2005. Ekong filed an affidavit in response attesting that she never received the Government's letter. The district court determined that the Government had presented sufficient proof that a demand letter was mailed to Ekong. The district court held that Ekong had failed to rebut the presumption that the demand letter was received.

"Proof that a letter properly directed was placed in a U.S. post office mail receptacle creates a presumption that it reached its destination in the usual time and was actually received by the person to whom it was addressed." Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989). "A sworn statement is credible evidence of mailing for the purposes of the mailbox rule." Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 420 (5th Cir. 2007) (brackets and quotation marks omitted). The placement of a letter in the mail may be proved by circumstantial evidence, including evidence of the sender's customary mailing practice. Id. The addressee's "bare assertion of non-receipt" is insufficient to rebut the assumption. Id. at 421.

The Government submitted the affidavit of the legal assistant who prepared the letter and caused it to be mailed to Ekong's residence and postal address through the United States mail. The legal assistant's affidavit was supported by business records. See Custer, 503 F.3d at 421. Ekong's affidavit of non-receipt was not supported by circumstantial evidence. See id. The district court did not err in applying the mailbox rule. The district court's order overruling Ekong's objections to the application for writ of garnishment is

AFFIRMED.

Summaries of

U.S. v. Ekong

United States Court of Appeals, Fifth Circuit

Dec 21, 2007

518 F.3d 285 (5th Cir. 2007)

holding that a criminal judgment specifying a restitution payment plant does not prevent the Government from requiring immediate payment by garnishment

Summary of this case from United States v. Wilson

holding that under the Mandatory Victim Restitution Act ("MVRA"), the government was entitled to seek immediate payment of the restitution judgment even though the criminal judgment specified that restitution was to be paid in installments

Summary of this case from United States v. Berry

holding that the MVRA authorizes garnishment of pension benefits despite judgment specifying that restitution be paid in installments

Summary of this case from United States v. Claus

holding that "[t]he addressee's bare assertion of non-receipt is insufficient to rebut the [presumption]"

Summary of this case from Martinez v. TCF Nat'l Bank

holding that the Government may immediately enforce restitution orders by all available means and in accordance with the same practices available for enforcing civil judgments under 18 U.S.C. §§ 3664(m) and 3613

Summary of this case from U.S. v. Bancroft

holding that "addressee's 'bare assertion of non-receipt' is insufficient to rebut the assumption" arising from the mailbox rule

Summary of this case from Garrett v. Comm'r

approving of the Government's argument for garnishment in Ekong that "the judgment required immediate payment of the full restitution amount, requiring installments only if the defendant failed to pay the full amount by the time she began supervised release"

Summary of this case from United States v. Elwood

rejecting debtor's contention that installment plan prevented garnishment because nothing in criminal judgement was contrary to statutes allowing government to enforce victim restitution orders under FDCPA

Summary of this case from United States v. Behrens

rejecting argument that writ of garnishment was improper where the criminal judgment specified that restitution be paid in installments

Summary of this case from U.S. v. Shusterman

rejecting debtor's contention' that installment plan prevented garnishment because nothing in criminal judgement was contrary to statutes allowing government to enforce victim restitution orders under FDCPA

Summary of this case from United States v. Lumiere

rejecting defendant's argument that "there was no justification for requiring immediate payment because the criminal judgment specified that restitution be paid in installments."

Summary of this case from United States v. Armstrong

rejecting defendant's argument that "there was no justification for requiring immediate payment because the criminal judgment specified that restitution be paid in installments."

Summary of this case from United States v. Price

rejecting as meritless the defendant's argument that a turnover order should be denied "because the criminal judgment specified that restitution be paid in installments"

Summary of this case from United States v. Sherrod

rejecting claim that "there was no justification for requiring immediate payment [via the Government's writ of garnishment] because the criminal judgment specified that restitution be paid in installments"

Summary of this case from United States v. Anderson

rejecting argument that government could not enforce restitution order because judgment provided for payment in installments

Summary of this case from United States v. McKnight

rejecting argument that writ of garnishment was improper where the criminal judgment specified that restitution be paid in installments

Summary of this case from U.S. v. O'Rourke

rejecting argument that government could not enforce restitution order because judgment provided for payment in installments

Summary of this case from U.S. v. Parlin

rejecting argument that immediate payment not required where nothing to the contrary in the judgment

Summary of this case from Carpenter v. Comm'r

In Ekong, the government established a presumption that the defendant received a letter by submitting the affidavit of the employee responsible for mailing the letter, in which she stated she mailed it, as well as business records indicating the letter had been mailed.

Summary of this case from Gamel v. Grant Prideco, L.P.

noting that district court “denied [Appellant's] objections and entered a final order of garnishment”

Summary of this case from United States v. Branham

noting that immediate garnishment was allowed when there was "nothing in the criminal judgment to the contrary"

Summary of this case from United States v. Foster

In Ekong, the defendant's payment plan was triggered only if the defendant had not paid the full restitution amount by the time she began supervised release.

Summary of this case from United States v. Kay

garnishing pension benefits notwithstanding installment payment plan

Summary of this case from United States v. Quam

garnishing pension benefits notwithstanding installment payment plan

Summary of this case from United States v. Quam

In United States v. Ekong, 518 F.3d 285 (5th Cir. 2007), cited by the parties, the Fifth Circuit, held that payment was due immediately, stating that "[t]here was nothing in the criminal judgment to the contrary" even though it contained a payment schedule for the period of supervised release.

Summary of this case from Daugerdas v. Comm'r of Internal Revenue

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