United States of America v. Durst et al

Filing 13

ORDER granting the Government's 7 Motion to issue continuing garnishee order. Signed by U.S. District Judge John C Coughenour.(PM) cc: financial deputy, defendant and Garnishee via the USPS.

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 UNITED STATES OF AMERICA, 10 Plaintiff, 11 ORDER v. 12 CASE NO. C17-0240-JCC STEVEN C. DURST, 13 Defendant. 14 15 This matter comes before the Court on the Government’s motion to issue continuing 16 garnishee order (Dkt. No. 7). Having thoroughly considered the parties’ briefing and the relevant 17 record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the 18 reasons explained herein. 19 I. 20 BACKGROUND In January 2004, the United States District Court for the District of Minnesota entered an 21 amended criminal judgment against Defendant/Judgment Debtor, Steven C. Durst, for mail 22 fraud. (Dkt. No. 7 at 1.) Mr. Durst was sentenced to 34 months in prison and ordered to pay 23 restitution in the amount of $504,333.63. (Id. at 1–2.) On October 24, 2016, the United States 24 filed an application for writ of continuing garnishment against Mr. Durst. (Dkt. No. 1.) The 25 Court issued a writ of continuing garnishment to the garnishee, CWD Group, Inc. (Dkt. No. 3.) 26 CWD Group filed an answer, stating that it employs Mr. Durst and pays him on a bi-weekly ORDER PAGE - 1 1 basis. (Dkt. No. 6.) The Government now requests that the Court enter a continuing garnishee 2 order, directing CWD Group to immediately begin paying to the United States District Court, 3 Western District of Washington, Mr. Durst’s non-exempt wages and the entire amount of non- 4 exempt property in CWD Group’s possession. (Dkt. No. 7 at 3.) Mr. Durst currently owes 5 $468,383.63 1 in restitution. (Dkt. No. 10 at 2.) 6 Mr. Durst, appearing pro se, argues that there is no need for garnishment because he has 7 never missed a payment to any creditor. (Dkt. No. 9 at 2.) He also claims financial hardship 8 because of his wife’s chronic illness leading to $35,000 in medical debt and asks that if 9 garnishment is necessary, it be capped at 10%. (Id. at 1–2.) Finally, Mr. Durst informs the Court 10 that he will be moving back to Minnesota in April and suggests that the Court defer a decision 11 until the case is transferred back to Minnesota. (Id. at 2.) 12 II. DISCUSSION 13 The only two grounds on which Mr. Durst could object to the garnishment are (1) that the 14 property the United States is taking is exempt from the garnishment, or (2) that the United States 15 has not complied with a statutory requirement for issuance of the garnishment. 28 U.S.C. 16 § 3202(d)(1)-(2). 2 Financial hardship is not a valid objection. United States v. Skeins, 2014 WL 17 5324880 at *3 (W.D. Wash. Oct. 17, 2014); United States v. Lawrence, 538 F. Supp. 2d 1188, 18 1194 (D.S.D. 2008). That financial hardship is not a valid objection is further reinforced by 19 Congress’s policies favoring victims’ rights to restitution over a concern for the financial 20 difficulties of the defendant. See 18 U.S.C. 3664(f)(1)(A) (full restitution required “without 21 consideration of the economic circumstances of the defendant”); 18 U.S.C. § 3771(a)(6) (victims 22 have a right to “full and timely restitution”); 18 U.S.C. § 3572(d) (restitution shall be paid 23 “immediately” or within the “shortest time” reasonably possible). 24 1 25 26 The Government has now twice filed declarations which incorrectly state that Mr. Durst owes $11,555,495.32. (Dkt. Nos. 8 and 11.) 2 Additional grounds for objection exist if arising from a default judgment, but not a criminal restitution debt. 28 U.S.C. § 3202(d)(3). ORDER PAGE - 2 1 Even if this Court were to consider financial hardship, Mr. Durst’s annual income is 2 roughly $112,000. (Dkt. No. 6 at 6.) 3 Adding in his wife’s social security payments, Mr. Durst’s 3 annual household income is about $120,000. (Dkt. No. 11-1 at 1.) Mr. Durst pays $1,256 a 4 month in medical bills. (Id.) Taking that into account, Mr. Durst’s annual income is still 5 $105,000. While the Court is sympathetic to Mr. Durst’s wife’s medical condition and necessary 6 bills, they are insufficient to warrant a reduction in the amount garnished. Accordingly, the Court 7 GRANTS the Government’s motion to issue a continuing garnishee order (Dkt. No. 7) and 8 hereby ORDERS the following: 9 (1) The Garnishee, CWD Group, Inc., shall pay to the United States District Court for the 10 Western District of Washington, the non-exempt earnings payable to 11 Defendant/Judgment Debtor Steven C. Durst, upon each period of time when 12 Defendant/Judgment Debtor Durst is entitled to receive such funds, and shall continue 13 said payments, if any, until Defendant/Judgment Debtor Durst’s debt is paid in full or 14 until Defendant/Judgment Debtor is no longer an active employee of Garnishee and 15 the Garnishee no longer has possession, custody, or control of any funds due and 16 owing to the Defendant/Judgment Debtor or until further order of this Court. This 17 includes all monies required to be previously withheld by the Garnishee, in 18 accordance with the writ of continuing garnishment (Dkt. No. 3); 19 (2) The Garnishee, CWD Group, Inc., shall pay to the United States District Court for the 20 Western District of Washington, the entire amount (less federal tax withholdings paid 21 to the Internal Revenue Service) of non-exempt property from any and all accounts in 22 the Garnishee’s possession, custody, or control, in which the Defendant maintains an 23 interest and meets the requirements to withdraw, but such amount shall not exceed the 24 amount necessary to pay Mr. Durst’s restitution balance in full; 25 26 3 From January through October, Mr. Durst earned $93,529. (Dkt. No. 6 at 6.) Earning $9,350 per month equals $112,200 per year. ORDER PAGE - 3 1 (3) Such payment shall be applied to Defendant/Judgment Debtor Durst’s outstanding 2 restitution obligation by the United States District Court for the Western District of 3 Washington; and 4 (4) The payment shall be made out to the United States District Court, Western District 5 of Washington, referencing Case Nos. 2:06-CR-00278-RSM-1 and 2:17-CV-00240- 6 JCC, 4 and to deliver such payment either personally or by First Class Mail to: 7 United States District Court, Western District of Washington 8 Attn: Financial Clerk – Lobby Level 9 700 Stewart Street 10 Seattle, Washington 98101 11 12 DATED this 7th day of March, 2017. A 13 14 15 John C. Coughenour UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 4 Formerly 2:16-MC-00167-RSL, this case was reassigned from Judge Lasnik to Judge Coughenour on February 16, 2017. ORDER PAGE - 4

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