United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S OBJECTION (DOC. 13) TO
GARNISHMENT AND QUASHING WRIT OF GARNISHMENT (DOC.
GEORGE CARAM STEEH
a miscellaneous action in which the government is seeking a
garnishment order. Defendant Michelle Freeman was convicted
of conspiracy to commit heath care fraud. The court entered a
judgment against her on September 21, 2017. Doc. 13-1. She
was sentenced to a term of 20 months' imprisonment and
ordered to pay restitution in the amount of $401, 897.82. The
judgment provides that “Defendant shall receive credit
on her restitution obligation for recovery from other
defendants who contributed to the same loss that gave rise to
defendant's restitution obligation.” Id.
upon Defendant's ability to pay, the court ordered a lump
sum payment of $100 “due immediately.”
Id. The court further ordered that “[p]ayment
during the term of supervised release will commence within 60
days . . . after release from imprisonment. The court will
set the payment plan based on an assessment of the
defendant's ability to pay at that time.”
Id. Defendant was scheduled to be released from
prison on April 18, 2019.
December 14, 2018, the government filed an application for a
writ of continuing garnishment. The Clerk issued a writ to
Fidelity Management Trust Company, which responded that
Defendant has retirement account with a market value of $65,
016. After the parties stipulated to extend the time to do
so, Defendant filed a request for hearing regarding the
garnishment on March 18, 2019. Defendant objects that
garnishing her retirement account would be inconsistent with
the terms of the judgment and that it would cause her
crux of Defendant's argument is that her judgment does
not require her pay the balance of her restitution obligation
immediately, but rather it provides that the court will set a
payment plan based upon her ability to pay. The government
argues that the imposition of a payment plan does not
necessarily preclude the employment of other enforcement
have held that “[g]arnishment is improper where the
government is seeking payment of an amount that is not
currently due.” United States v. Williams, 898
F.3d 1052, 1055 (10th Cir. 2018). “By
statute, it is the district court - not the government - that
determines how a defendant is to pay restitution. . . . Thus,
the government can enforce only what the district court has
ordered the defendant to pay.” United States v.
Martinez, 812 F.3d 1200, 1202 (10th Cir.
2015) (citing 18 U.S.C. § 3664(f)(2)); see also
United States v. Hughes, 914 F.3d 947, 949-50
(5thCir. 2019) (following Martinez); 18
U.S.C. § 3664(f)(2) (“The court shall . .
. specify in the restitution order the manner in which, and
the schedule according to which, the restitution is to be
paid. . . .”) (emphasis added).
the judgment provides for installment payments and does not
order that the full amount of restitution is payable
immediately, courts have held that the government may not
attempt to enforce the full restitution amount because the
full amount is not yet due. See Hughes, 914 F.3d at
950 (“[T]he government's attempt to enforce the
full restitution amount conflicts with the installment-based
directive in Hughes's original judgment.”);
Martinez, 812 F.3d at 1203 (“[T]he district
court specifically declined to order immediate payment of the
entire amount.”). As the Tenth Circuit has explained:
Courts have almost uniformly recognized a “crucial
distinction” between cases . . . in which the court
orders the defendant to pay only through a payment schedule
with no requirement of immediate payment in full, and cases .
. . in which the judgment specifies that the amount owed is
due in full on the date of judgment, regardless of whether
the judgment includes a backup schedule of payments to cover
any unpaid amounts.
Williams, 898 F.3d at 1055 (citations omitted).
See also United States v. Behrens, 656
Fed.Appx. 789, 790 (8th Cir. 2016) (denying
objection to garnishment because “the judgment
specified that the amount owed was due in full on the date of
judgment”); United States v.
Shusterman, 331 Fed.Appx. 994, 996 (3d Cir. 2009)
(garnishment appropriate means to collect restitution when
the “judgment provides that restitution is due
case, the judgment does not provide that the full amount of
restitution is due immediately. Rather, the judgment states
that the court “will set the payment plan.” Doc.
13-1. Allowing the government to seek garnishment under these
circumstances “would allow the government to usurp the
district court's role in evaluating the defendant's
financial condition and setting the payment schedule.”
Martinez, 812 F.3d at 1206 (noting that under 18
U.S.C. §§ 3664 and 3572, “the district court
must consider the defendant's financial condition before
deciding how restitution is to be paid”). For these
reasons, the court will grant Defendant's motion and
quash the writ of garnishment. The court will consider the
value of Defendant's retirement account, as well as
Defendant's financial condition as a whole, at the time
it sets the payment plan.
HEREBY ORDERED that Defendant's motion (Doc. 13) is
GRANTED and that the Writ of Continuing Garnishment ...