United States of America v. CURRENCY $337,328.63) FROM FLAGSTAR ACCOUNT #587542830 IN THE NAME OF 1ST CHOICE HOME CARE et al

Filing 56

AMENDED ORDER Granting Plaintiff's Motion to Lift Stay and to Enter an Order to Transfer the Defendant In Rem $64,591.38 51 . Signed by District Judge Denise Page Hood. (LSau)

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, vs. Civil No. 12-CV-14787 Honorable Denise Page Hood THREE HUNDRED THIRTY SEVEN THOUSAND THREE HUNDRED TWENTY EIGHT DOLLARS AND SIXTY THREE CENTS ($337,328.63) FROM FLAGSTAR ACCOUNT #587542830 IN THE NAME OF 1ST CHOICE HOME CARE, et al.; Defendants in Rem. ______________________________________/ AMENDED ORDER GRANTING PLAINTIFF’S MOTION TO LIFT STAY AND TO ENTER AN ORDER TO TRANSFER THE DEFENDANT IN REM $64,591.38 [#51] I. Introduction and Factual Background In case number 12-20272 (the “criminal case”), Jamella Al-Jumail was charged, along with 12 other defendants, with health care fraud. Ms. Al-Jumail was convicted and her sentence includes, among other things, restitution to the U.S. Department of Human Services (“HHS”) in the amount of $589,516.69. According to the Government, that entire amount remains outstanding. In conjunction with the criminal case, the Government filed a Complaint for Forfeiture on October 29, 2012 with respect to numerous bank accounts, investment accounts, jewelry, gift cards, and a vehicle (the “defendants in rem”). No putative claimants filed a verified claim to any of the defendants in rem, though Ms. Al-Jumail did file an administrative claim to the FBI on August 12, 2012 with respect to $64,591.38 in Comerica Account #1852602588 in the name of Be Well Home Care, LLC (“$64,591.38”), which account she owned. Attorney Maria P. Mannarino has appeared on behalf of Ms. Al-Jumail at the proceedings in this matter, as noted below. On March 14, 2016, the Court stayed the proceedings in this civil case. On July 26, 2016, the Government filed a Motion to Lift Stay and Enter Order to Transfer $64,591.38 from Comerica Account #1852602588 to the Clerk of the Court to be applied toward the $589,516.69 in restitution owed by Defendant Jamella Al-Jumail. No written response to the Government’s motion has been filed. The Court scheduled a hearing on the Government’s motion for November 1, 2016. The Government attorney and Ms. Mannarino, appearing on behalf of Ms. AlJumail, were present. Ms. Mannarino was Ms. Al-Jumail’s attorney in the criminal case. Ms. Mannarino was not specifically retained by Ms. Al-Jumail for this matter, but no one had filed an appearance on behalf of Ms. Al-Jumail and Ms. Al-Jumail remains in federal custody on the criminal case. On August 18, 2016, the Court had appointed Ms. Mannarino as CJA Counsel to represent Ms. Al-Jumail, an interested party. At the November 1, 2016, hearing Ms. Mannarino advised the Court that Ms. -2- Al-Jumail had indicated to Ms. Mannarino that Ms. Al-Jumail would be seeking a civil attorney to represent her regarding this matter. The Court adjourned the hearing for approximately 90 days to allow Ms. Al-Jumail to obtain such an attorney. On March 1, 2017, the Court held a second hearing regarding the Government’s motion. Ms. Mannarino again appeared on behalf of Ms. Al-Jumail. Ms. Mannarino advised the Court that her client (and her client’s family) recently informed Ms. Mannarino that they had obtained “new” counsel for Ms. Al-Jumail. Ms. Mannarino further advised the Court that she had contacted the “new” counsel for Ms. Al-Jumail. The “new” counsel had informed Ms. Mannarino that he was handling a collateral appeal of Ms. Al-Jumail’s criminal case, but he was not representing Ms. Al-Jumail with respect to the instant matter. Ms. Mannarino continued to represent Ms. AlJumail at the March 1, 2017, presenting argument in opposition to the Government’s motion. II. Applicable Law A criminal restitution order may be enforced “in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law.” 18 U.S.C. §§ 3613(a), 3613(f). The Treasury Offset Program, see 31 U.S.C. § 3716, subjects to offset “all funds payable by the United States,” 31 USC § 3701(a)(1), to an individual who owes delinquent federal debts, unless the payment -3- is exempted from offset by statute or regulation. III. Analysis In the words of the Government, it is “seek[ing] relief which would essentially reach the same result, but more swiftly and expediently, as an order to the [United States Marshal Service] to transfer the funds to the Clerk of the Court to be applied to Al-Jumail’s outstanding criminal restitution judgment.” The Government argues, and the Court finds, that there is no dispute that the money Ms. Al-Jumail owes to HHS is considered a “debt” and that the United States is authorized to collect on behalf of the victim. The Government contends, and the Court finds, that any litigation by Ms. Al-Jumail of her right, title, or interest in the $64,591.38 in this forfeiture proceeding would be a futile expenditure of Government and judicial resources. At the end of the case, even if victorious, Ms. Al-Jumail would not personally recoup the $64,591.38 because it would be subject to collection by the United States to be paid toward restitution owed to HHS: If a person obligated to provide restitution, or pay a fine, receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed. 18 U.S.C. § 3664(n). In other words, pursuant to 18 U.S.C. § 3664(n), as an -4- incarcerated person obligated to pay restitution, Ms. Al-Jumail would be required to apply the value of any judgment in this forfeiture case to her restitution obligation. In light of Ms. Al-Jumail’s outstanding restitution obligation and the mandatory provisions of 18 U.S.C. § 3664, the Court concludes that any attempt by Ms. Al-Jumail to seek return of the $64,591.38 would be a claim made without a good faith basis for personal recovery. IV. Conclusion For the reasons stated above, IT IS ORDERED that the Government’s Motion to Lift Stay and Enter Order to Transfer $64,591.38 from Comerica Account #1852602588 to the Clerk of the Court [#51] is GRANTED. IT IS ORDERED. S/Denise Page Hood Denise Page Hood Chief Judge, United States District Court Dated: March 22, 2017 I hereby certify that a copy of the foregoing document was served upon counsel of record on March 22, 2017, by electronic and/or ordinary mail. S/LaShawn R. Saulsberry Case Manager -5-

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