UNITED STATES OF AMERICA v. TILLEY et al

Filing 5

MEMORANDUM OPINION & ORDER re 3 Notice filed by LACY E. TILLEY, JR. - denying objections to writ of garnishment, as explained therein. Signed by Chief Judge Joy Flowers Conti on 7/14/17. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,

vs.

LACEY E. TILLEY,
Defendant,
STEVE GABER, TRUSTEE FOR PENN
WINDOW AND OFFICE CLEANING
CO. PROFIT SHARING and PENN
WINDOW AND OFFICE CLEANING
CO. EMPLOYEES’ PENSION PLAN,
and its successors and assigns,
Garnishee.

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) MISC. NO.
17-367
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) Related to CRIM. NO. 07-290
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MEMORANDUM OPINION
CONTI, Chief District Judge.
On June 6, 2017, defendant Lacey E. Tilley (“Tilley” or “defendant”) filed a pro se
Notice, which set forth several objections to a writ of garnishment (Misc. No. 07-367, ECF No.
3). The government filed a response on June 28, 2017 (Misc. No. 07-367, ECF No. 4). Tilley’s
objections to garnishment will be overruled because, as more fully explained below, the
government’s garnishment efforts are appropriate.
Factual and Procedural Background
On April 15, 2011, Tilley pleaded guilty to one count of mail fraud. The court sentenced
him to 110 months of incarceration, three years of supervised release and ordered him to pay
restitution in the amount of $468,517.47. To date, Tilley has not made any restitution payments,

but because other jointly and severally liable defendants have made some payments, Tilley’s
outstanding restitution balance is currently $439,138.30.
The government discovered that Tilley had a vested interest in a profit sharing plan and
an employee pension plan administered by Penn Window and Office Cleaning Company, a
victim of Tilley’s fraud. On May 9, 2017, the government filed an application for a writ of
garnishment directed to Steve Gaber as trustee for Penn Window and Office Cleaning Company
Profit Sharing Plan and Employees’ Pension Plan (“Garnishee”) (Misc. No. 07-367, ECF No. 1).
On May 11, 2017, the court accepted the government’s application and issued a writ of
garnishment. The government subsequently served the writ on the Garnishee and served Tilley
with instructions for objecting to the Garnishee’s answer and obtaining a hearing on the
objections. Tilley received a copy of the writ of garnishment with instructions on May 16, 2017.
On May 31, 2017, the Garnishee filed an answer confirming that about $15,580.00 was being
held for Tilley in a pension plan and profit sharing plan (Misc. No. 07-367, ECF No. 2).
On June 6, 2017, Tilley filed a Notice to the court, raising objections to the writ of
garnishment (Misc. No. 07-367, ECF No. 3). Tilley objects that the writ impermissibly altered or
increased his sentence. Id. He also questions the validity of the new civil action against him. Id.
Tilley contends that he has a right to be appointed counsel, and he “asserts his right to be present
in the courtroom.” Id. Tilley requests that the court “not schedule any proceedings” before July
14, 2017, because he is being transferred to a halfway house in Akron, Ohio. Finally, Tilley
requests that the case be transferred to the Northern District of Ohio. Id.

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Legal Analysis
A. Jurisdiction
“[U]nder 18 U.S.C. § 3664(m)(1)(A), the Government may enforce a restitution order in
the manner provided by subchapter B of Chapter 229, or 18 U.S.C. § 3613.” United States v.
Shusterman, 331 F. App’x 994, 996 (3d Cir. 2009). Sections 3613(a) and (f) provide that the
United States may enforce a restitution order “in accordance with the practices and procedures
for the enforcement of a civil judgment under Federal law or State law.” In this case, the
government complied with the federal law procedures for subjecting a defendant to a writ of
garnishment set forth in 28 U.S.C. § 3205, which allows the government to “apply for a writ of
garnishment, and the court may issue the writ and a disposition order.” Shusterman, 331 F.
App’x at 996. Thus, “the District Court ha[s] jurisdiction to issue the garnishment order.” Id.
With respect to Tilley’s request to transfer venue, “venue is proper and judicial resources
are conserved where the garnishment proceedings are before the same court which tried the
underlying crime.” United States v. O’Rourke, No. 2:10-CR-00235, 2011 WL 3035394, at *3
(D.N.J. July 25, 2011). Although Tilley will be transferred to a halfway house in Ohio, the case
is more efficiently heard in this court because it is the sentencing court and a hearing will not be
ordered. In United States v. Castanon, No. 10-237, 2012 WL 1432554 (D.N.J. April 24, 2012)
(rejecting challenge to writ of garnishment), the court denied a similar request to transfer venue
to the district where the defendant was incarcerated and explained: “there is no inconvenience
because a hearing is not necessary.”1 Id. at *3.

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The court notes that Tilley has a pending motion to transfer venue in his criminal case to the
Northern District of Ohio. (Crim. No. 07-290, ECF No. 218).
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B. Enforcement of Sentence
Tilley argues that the writ of garnishment alters or enhances his sentence.

This

contention shows a clear misunderstanding of his plea agreement and sentence, especially with
respect to his outstanding restitution. As previously stated, § 3613 allows the government to
utilize civil means “for the enforcement of an order of restitution.” 18 U.S.C. § 3613(a) and (f).
The writ of garnishment is a lawful remedy to collect Tilley’s outstanding restitution imposed by
the sentencing court and is not an alteration or increase in his past sentence.
In addition, Tilley’s plea agreement explicitly states, “[t]his agreement does not preclude
the government from pursuing any civil or administrative remedies against Lacey Tilley or his
property.” (Crim. No. 07-290, ECF No. 46). Tilley signed the agreement on July 22, 2009,
acknowledging that he read and discussed the agreement and all its provisions with his lawyer.
Id. The court found Tilley competent and accepted his plea of guilty pursuant to the terms of the
plea agreement as knowing and voluntary. (Plea Hearing Tr., ECF No. 89). In sum, the
government’s garnishment efforts are appropriate.
C. Right to Appointment of Counsel
The Sixth Amendment to the Constitution states that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for this defense.” U.S. Const.
amend. VI (emphasis added). Several courts of appeals have held that because a writ of
garnishment is a civil action “collateral to the underlying criminal conviction, [defendant] did not
possess a right to counsel derived from the Sixth Amendment.” United States v. Cohan, 798 F.3d
84, 89-90 (2d Cir. 2015); see United States v. Behrens, 656 F. App’x 789, 790 (8th Cir. 2016)
(holding there is no right to counsel in a civil proceeding regarding the Federal Debt Collection
Procedures Act); United States v. Lee, 504 F. App’x 505, 507 (7th Cir. 2013) (“Garnishment

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proceedings are civil, not criminal, . . . and civil litigants normally do not have the right to
appointed counsel.”). No contrary authority was found and the court has no basis to disagree
with those decisions. Tilley’s motion will be denied in its entirety and there will be no ongoing
legal proceedings that require assistance of counsel. In sum, the court declines to appoint
counsel for Tilley.
D. Hearing
Pursuant to 28 U.S.C. § 3202(d), a judgment debtor must request a hearing within twenty
days of receiving an enforcement notice described in § 3202(b).

Issues at a hearing are

statutorily limited to the following:
(1) to the probable validity of any claim of exemption by the
judgment debtor;
(2) to compliance with any statutory requirement for the issuance
of the postjudgment remedy granted; and
(3) if the judgment is by default and only to the extent that the
Constitution or another law of the United States provides a right to
a hearing on the issue, to-(A) the probable validity of the claim for the debt which is
merged in the judgment; and
(B) the existence of good cause for setting aside such judgment.
28 U.S.C. § 3202(d).
Tilley could also object and request a hearing within twenty days of receiving the answer
of the Garnishee. 28 U.S.C. § 3205(c)(5). The requirements for a hearing in § 3205 are similar
to § 3202—the objecting party “shall state the grounds for the objection and bear the burden of
proving such grounds.” Id. The government correctly notes that Tilley’s Notice did not object to,
or even address, the Garnishee’s answer.
Tilley did not explicitly request a hearing. Instead, he merely asked that no proceeding be
scheduled prior to July 14, 2017 (Misc. No. 17-367, ECF No. 3). In any event, a hearing is not
warranted in this case. Tilley does not contend that an exemption would apply and does not

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identify a statutory requirement with which the government failed to comply. “In garnishment
proceedings, the Defendant bears the burden of establishing that his property is exempt.” United
States v. King, No. 08-66-01, 2012 WL 1080297 (E.D. Pa. Apr. 2, 2012) (citing 28 U.S.C. §
3014(b)(2); United States v. Value Investments, Inc., No. 97– 153, 1998 WL 229758 at *3 (E.D.
Pa. Apr.29, 1998)).
As explained in King, Congress granted the government broad powers to enforce
restitution obligations in the Mandatory Victims Restitution Act (“MVRA”) in response to the
Supreme Court’s decision in Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365,
376 (1990) (noting that Congress would have to create an exception to ERISA’s anti-alienation
protections). King, 1998 WL 229758 at *3-6. The MVRA applies “notwithstanding any other
Federal law,” 18 U.S.C. § 3613(a), and supersedes the protections against garnishment provided
in ERISA.

Id. The government, therefore, is entitled to recover the corpus of retirement

accounts. Id. at *3 (citing Shusterman, 331 F. App’x 994). Tilley’s pension plan and profit
sharing plan are not exempt from garnishment by the government to satisfy his restitution
obligation.
Tilley did not state a valid ground for a hearing. See, e.g., United States v. Campbell, No.
16-51545, 2016 WL 7385727, at *2 (E.D. Mich. Dec. 21, 2016) (“If a defendant/debtor does not
raise either of the statutorily permissible issues in [a] request for a garnishment hearing, the
request should be denied.”). Under these circumstances, the court must decline to hold a hearing
in this case.

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Conclusion
Tilley’s objections to the writ of garnishment are without merit and will be
OVERRULED. The government may proceed with garnishment. An appropriate order will be
entered.

July 14, 2017

BY THE COURT:
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

vs.

LACEY E. TILLEY,
Defendant,
STEVE GABER, TRUSTEE FOR PENN
WINDOW AND OFFICE CLEANING
CO. PROFIT SHARING and PENN
WINDOW AND OFFICE CLEANING
CO. EMPLOYEES’ PENSION PLAN,
and its successors and assigns,
Garnishee.

) MISC. NO.
17-367
)
) RELATED TO CRIM. NO. 07-290
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)
)
)
) CHIEF JUDGE JOY FLOWERS CONTI
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ORDER

AND NOW, this 14th day of July, 2017, for the reasons set forth in the accompanying
memorandum opinion, IT IS HEREBY ORDERED that Lacey Tilley’s objections set forth in
Defendant’s Notice to the Court (Misc. No. 07-367, ECF No. 3) are DENIED.

BY THE COURT:
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

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