United States of America v. Desenberg

Filing 12

STIPULATED FINAL ORDER of Garnishment, signed by Magistrate Judge Barbara A. McAuliffe on 1/17/2023. TD Ameritrade Clearing, Inc. is directed to pay the Clerk of the United States District Court all the funds held by Garnishee within fifteen (1 5) days of the filing of this Final Order of Garnishment. Payment shall be made in the form of a cashier's check, money order, or company draft, made payable to the "Clerk of the Court." The criminal docket number (1:11-cr-00406-LJO-SKO) shall be stated on the payment instrument. The garnishment shall terminate, and the Clerk of Court is directed to close this case, when the payment is deposited with the Clerk. (Rivera, O)

Case 1:22-mc-00012-BAM Document 12 Filed 01/17/23 Page 1 of 4
1 PHILLIP A. TALBERT
United States Attorney
2 LYNN TRINKA ERNCE
Assistant United States Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: [phone]
Facsimile: [phone]
5
6 Attorneys for the United States of America
7
IN THE UNITED STATES DISTRICT COURT

8
9

EASTERN DISTRICT OF CALIFORNIA

10
11

UNITED STATES OF AMERICA,
Plaintiff,

12

Case No. 1:22-MC-00012-BAM
[PROPOSED] STIPULATED FINAL
ORDER OF GARNISHMENT

v.

13

Criminal Case No. 1:11-CR-00406-LJO-SKO
14

JOHN MARCUS DESENBERG,

15

Defendant and Debtor.

16
17

TD AMERITRADE CLEARING, INC.,

18
Garnishee.
19
20
The United States of America (“United States”) and defendant/judgment debtor John Marcus

21

22 Desenberg (“Debtor”) hereby request that the Court enter this Stipulated Final Order of Garnishment
23 based on the following:
RECITALS

24
1.

25

On or about April 8, 2013, the Court sentenced Debtor in criminal case 1:11-CR-00406

26 LJO SKO, and ordered him to pay a $200 statutory assessment and $300,000 of restitution. As of
27 January 12, 2023, debtor still owes restitution of $214,195.68.
28 ///

30

[PROPOSED] STIPULATED FINAL ORDER
OF GARNISHMENT

1

Case 1:22-mc-00012-BAM Document 12 Filed 01/17/23 Page 2 of 4
1

2.

On January 20, 2022, the United States filed an Application for Writ of Garnishment

2 against Debtor’s interest in property held by TD Ameritrade Clearing, Inc. (“Garnishee”). ECF 1.
3

3.

The Clerk of the Court issued the Writ and Clerk’s Notice to Debtor. ECF 3 and ECF 2.

4 The United States served the Writ and related documents on Garnishee and Debtor. ECF 4 and 6.
5

4.

On January 24, 2022, Garnishee served its Acknowledgment of Service and Answer of

6 Garnishee on Debtor and the United States (“Answer”). ECF 5. In its Answer, Garnishee stated that it
7 has possession of an individual brokerage account ending in 9195 with an approximate total value of
8 $152.34, which is subject to market fluctuations and deposits. Id. As of November 30, 2022, the
9 account held $802.44.
10

5.

Debtor did not file a claim of exemption to the proposed garnishment or request a

11 hearing, did not object to Garnishee’s Answer, and did not otherwise object to the United States’
12 garnishment action.
STIPULATION

13
14

The United States and Debtor hereby stipulate and agree as follows:

15

A.

The United States and Debtor consent to entry of an order approving this Stipulation by a

16 magistrate judge, and consent forms so stating are concurrently filed with this Stipulation.
17

B.

Debtor acknowledges and understands that the Federal Debt Collection Procedures Act

18 (“FDCPA”) affords him certain rights in a garnishment action. He waives these rights, including service
19 of the writ of garnishment pursuant to 28 U.S.C. § 3205(c)(3); notice of and the right to claim
20 exemptions and request a hearing as provided in 28 U.S.C. §§ 3202 and 3205(c)(5); and to any other
21 process to which he may be entitled under the FDCPA.
22

[TEXT AND SIGNATURES CONTINUE ON NEXT PAGE]

23
24
25
26
27
28

30

[PROPOSED] STIPULATED FINAL ORDER
OF GARNISHMENT

2

Case 1:22-mc-00012-BAM Document 12 Filed 01/17/23 Page 3 of 4
C.

1

The Court should grant the Writ of Garnishment against the TD Ameritrade account

2 ending in 9195, and Garnishee should disburse all funds held in the account ending in 9195 to the Clerk
3 of Court to be applied towards Debtor’s restitution obligation by approving the proposed Order set forth
4 below.
Respectfully submitted,

5
6

Dated: _01/13/2023______________

PHILLIP A. TALBERT
United States Attorney

7
8

By: /s/ Lynn Trinka Ernce
LYNN TRINKA ERNCE
Assistant United States Attorney

9
10
11

Dated: 01/13/2023

/s/ John Marcus Desenberg
JOHN MARCUS DESENBERG

12
13

***

14

[PROPOSED] FINAL ORDER OF GARNISHMENT

15

Based on the foregoing stipulation between the United States of America and John Marcus

16 Desenberg, and good cause appearing therefore,
17

IT IS HEREBY ORDERED that:

18

1.

The foregoing Stipulation is APPROVED in its entirety, and the parties’ request for a

19 final order of garnishment IS GRANTED;
20

2.

TD Ameritrade Clearing, Inc. is directed to pay the Clerk of the United States District

21 Court all the funds held by Garnishee within fifteen (15) days of the filing of this Final Order of
22 Garnishment. Payment shall be made in the form of a cashier’s check, money order, or company draft,
23 made payable to the “Clerk of the Court,” and delivered to:
24

Office of the Clerk of Court
U.S. District Court, Eastern District of California
501 I St., Rm. 4-200
Sacramento, CA 95814

25
26

27 The criminal docket number (1:11-cr-00406-LJO-SKO) shall be stated on the payment instrument;
28 ///

30

[PROPOSED] STIPULATED FINAL ORDER
OF GARNISHMENT

3

Case 1:22-mc-00012-BAM Document 12 Filed 01/17/23 Page 4 of 4
1

3.

The Court shall retain jurisdiction to resolve matters through ancillary proceedings in the

2 case, if necessary; and
3

4.

The garnishment shall terminate, and the Clerk of Court is directed to close this case,

4 when the payment is deposited with the Clerk.
5
6
7

IT IS SO ORDERED.
Dated:

/s/ Barbara

January 17, 2023

_

UNITED STATES MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

30

A. McAuliffe

[PROPOSED] STIPULATED FINAL ORDER
OF GARNISHMENT

4