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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,

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No. 2:14-mc-0021 JAM CKD

v.

ORDER

MARTIN CULLENWARD,

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Defendant.

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Defendant’s claim of exemption re writ of garnishment is pending before the court. Due

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to defendant’s incarceration, the matter is submitted on the papers. Upon review of the

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documents in support of the claim of exemption and the opposition thereto and good cause

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appearing therefor, THE COURT FINDS AND ORDERS AS FOLLOWS:

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1. Plaintiff here seeks garnishment of defendant’s Individual Retirement Account

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(“IRA”) maintained by the Vanguard Group, Inc. to recover the unpaid restitution order1 entered

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against defendant in a criminal proceeding. On March 4, 2014, the date on which Vanguard was

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served with the writ of garnishment, the IRA was invested in the Vanguard Wellesley Income

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Fund, with a total value of $11,660.89 and in the Vanguard Wellington Fund, with a total value of

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$11,684.26. See ECF No. 7, p.1. Defendant objects to the garnishment action on the ground that

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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.
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the amended judgment entered in the criminal proceeding, which provides for a payment

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schedule, precludes any efforts by the United States to collect the restitution amount by other

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means. See USA v. Cullenward, 2:13-cr-0060 JAM-1, ECF No. 29 at p.6 (“If incarcerated,

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payment of restitution is due during imprisonment at the rate of not less than $25 per quarter”).

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The payment plan does not preclude the government from enforcing the restitution order by

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garnishment of defendant’s nonexempt property. See United States v. James, 312 F. Supp. 2d

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802, 806-807 (E.D. Va. 2004). Defendant’s claim of exemption is therefore denied.

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2. Within seven days of entry of this order, plaintiff shall submit a proposed final order of

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garnishment, directing immediate distribution of the IRA maintained by Vanguard Group, Inc.

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registered in the name of Martin Stuart Cullenward, to be paid to the plaintiff United States of

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America.

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Dated: April 29, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 usa-cullenward.gar

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