United States of America v. Cullenward

Filing 11

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/29/14 DENYING defendant's claim of exemption. Plaintiff shall submit a proposed final order of garnishment within 7 days. (Manzer, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 14 No. 2:14-mc-0021 JAM CKD v. ORDER MARTIN CULLENWARD, 15 Defendant. 16 Defendant’s claim of exemption re writ of garnishment is pending before the court. Due 17 18 to defendant’s incarceration, the matter is submitted on the papers. Upon review of the 19 documents in support of the claim of exemption and the opposition thereto and good cause 20 appearing therefor, THE COURT FINDS AND ORDERS AS FOLLOWS: 21 1. Plaintiff here seeks garnishment of defendant’s Individual Retirement Account 22 (“IRA”) maintained by the Vanguard Group, Inc. to recover the unpaid restitution order1 entered 23 against defendant in a criminal proceeding. On March 4, 2014, the date on which Vanguard was 24 served with the writ of garnishment, the IRA was invested in the Vanguard Wellesley Income 25 Fund, with a total value of $11,660.89 and in the Vanguard Wellington Fund, with a total value of 26 $11,684.26. See ECF No. 7, p.1. Defendant objects to the garnishment action on the ground that 27 28 1 Restitution in the total sum of $1,483,620.14 was ordered in the criminal proceeding. See USA v. Cullenward, 2:13-cr-0060 JAM-1, ECF No. 29. 1 1 the amended judgment entered in the criminal proceeding, which provides for a payment 2 schedule, precludes any efforts by the United States to collect the restitution amount by other 3 means. See USA v. Cullenward, 2:13-cr-0060 JAM-1, ECF No. 29 at p.6 (“If incarcerated, 4 payment of restitution is due during imprisonment at the rate of not less than $25 per quarter”). 5 The payment plan does not preclude the government from enforcing the restitution order by 6 garnishment of defendant’s nonexempt property. See United States v. James, 312 F. Supp. 2d 7 802, 806-807 (E.D. Va. 2004). Defendant’s claim of exemption is therefore denied. 8 2. Within seven days of entry of this order, plaintiff shall submit a proposed final order of 9 garnishment, directing immediate distribution of the IRA maintained by Vanguard Group, Inc. 10 registered in the name of Martin Stuart Cullenward, to be paid to the plaintiff United States of 11 America. 12 Dated: April 29, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 13 14 15 16 4 usa-cullenward.gar 17 18 19 20 21 22 23 24 25 26 27 28 2

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