News You Can Use: 10th Circuit Says Garnishment Allowed When Restitution Is “Due Immediately” – United States v. Williams

Check out United States v. Williams, where the Tenth Circuit recently held that a restitution order specifying that restitution is “due immediately” creates an immediately enforceable obligation to pay the full restitution amount, even though the Schedule of Payments also provides for smaller, periodic payments.

Background: The Internal Revenue Service investigated defendant Ricky Williams for tax fraud. The investigation resulted in USAA Savings Bank freezing an account in defendant’s name, which contained funds related to the fraud. Mr. Williams pleaded guilty to one count of tax fraud and was ordered to pay $240,361 in restitution to the IRS, with a $100 special assessment, for a total liability of $240,461. 

The Mandatory Victims Restitution Act (MVRA) provides that “[a] restitution order may direct the defendant to make a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.”  18 U.S.C. § 3664(f)(3)(A).  Here, the Schedule of Payments required restitution as follows:

A. Lump sum payment of $240,461.00 ($240,361.00/restitution; $100.00/special assessment) due immediately, balance due . . . in accordance with . . . F below . . . .

F. Special instructions regarding the payment of criminal monetary penalties:

If restitution is not paid immediately, the defendant shall make payments of 10% of the defendant’s quarterly earnings during the term of imprisonment; and If restitution is not paid in full at the time of release from confinement, the defendant shall make payments the greater of $100.00 per month or not less than 10% of the defendant’s gross monthly income, as directed by the probation officer . . . .

Slip op. at 3.

A few months after Mr. Williams was sentenced, while he was in prison, the government applied for a post-judgment writ of garnishment against one of his bank accounts, in order to collect the restitution owed.  The district court held that the entire amount was immediately due, per Section A of the Schedule of Payments, and that Section F served as a back-up schedule for the payment of whatever amounts were not paid under Provision A.  After the trial court granted the application for a writ of garnishment, Mr. Williams appealed, representing himself pro se.

Issue: Was the government permitted to immediately collect the full restitution amount (as provided in section A), or was it limited to 10% of Mr. Williams’ quarterly earnings during his term of imprisonment (as provided in section F)?

Holding: In an opinion by Judge McKay, joined by Judges Phillips and O’Brien, the Tenth Circuit affirmed.  Its decision was driven by the doctrine requiring “deference to the district court’s interpretation of its own order,” so long as it is reasonable.  Slip op. at 5 (quoting Auto-Owners Ins. Co. v. Summit Park Townhome Ass’n, 886 F.3d 863, 872 (10th Cir. 2018)).  Concluding that the district court’s “interpretation of its own prior [restitution] order in this case [was] reasonable,” the Tenth Circuit held that the full amount of restitution was due immediately.

Takeaways:

  • Remember that the MVRA allows restitution to be paid in a lump-sum amount, according to a specified schedule, through in-kind payments, or a combination of scheduled and in-kind payments.  See 18 U.S.C. § 3664(f)(3)(A).  If restitution is on the table, consider whether you want to advance arguments about the appropriate manner of payment.
  • If the Schedule of Payments says that X amount of restitution is “due immediately,” then your client may be on the hook for that entire amount as soon as he is sentenced—even if the Schedule of Payments also seems to provide for smaller, periodic payments.
  • To avoid any confusion, make sure that you, the government, and the judge are all on the same page with what restitution is due when.  If the order is ambiguous, the judge’s interpretation (if reasonable) will probably control.