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.

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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UNITED STATES OF AMERICA,

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Plaintiff,

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ORDER

v.

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CASE NO. C17-0240-JCC

STEVEN C. DURST,

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Defendant.

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This matter comes before the Court on the Government’s motion to issue continuing

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garnishee order (Dkt. No. 7). Having thoroughly considered the parties’ briefing and the relevant

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record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the

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reasons explained herein.

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I.

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BACKGROUND
In January 2004, the United States District Court for the District of Minnesota entered an

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amended criminal judgment against Defendant/Judgment Debtor, Steven C. Durst, for mail

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fraud. (Dkt. No. 7 at 1.) Mr. Durst was sentenced to 34 months in prison and ordered to pay

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restitution in the amount of $504,333.63. (Id. at 1–2.) On October 24, 2016, the United States

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filed an application for writ of continuing garnishment against Mr. Durst. (Dkt. No. 1.) The

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Court issued a writ of continuing garnishment to the garnishee, CWD Group, Inc. (Dkt. No. 3.)

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CWD Group filed an answer, stating that it employs Mr. Durst and pays him on a bi-weekly

ORDER
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basis. (Dkt. No. 6.) The Government now requests that the Court enter a continuing garnishee

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order, directing CWD Group to immediately begin paying to the United States District Court,

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Western District of Washington, Mr. Durst’s non-exempt wages and the entire amount of non-

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exempt property in CWD Group’s possession. (Dkt. No. 7 at 3.) Mr. Durst currently owes

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$468,383.63 1 in restitution. (Dkt. No. 10 at 2.)

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Mr. Durst, appearing pro se, argues that there is no need for garnishment because he has

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never missed a payment to any creditor. (Dkt. No. 9 at 2.) He also claims financial hardship

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because of his wife’s chronic illness leading to $35,000 in medical debt and asks that if

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garnishment is necessary, it be capped at 10%. (Id. at 1–2.) Finally, Mr. Durst informs the Court

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that he will be moving back to Minnesota in April and suggests that the Court defer a decision

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until the case is transferred back to Minnesota. (Id. at 2.)

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II.

DISCUSSION

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The only two grounds on which Mr. Durst could object to the garnishment are (1) that the

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property the United States is taking is exempt from the garnishment, or (2) that the United States

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has not complied with a statutory requirement for issuance of the garnishment. 28 U.S.C.

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§ 3202(d)(1)-(2). 2 Financial hardship is not a valid objection. United States v. Skeins, 2014 WL

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5324880 at *3 (W.D. Wash. Oct. 17, 2014); United States v. Lawrence, 538 F. Supp. 2d 1188,

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1194 (D.S.D. 2008). That financial hardship is not a valid objection is further reinforced by

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Congress’s policies favoring victims’ rights to restitution over a concern for the financial

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difficulties of the defendant. See 18 U.S.C. 3664(f)(1)(A) (full restitution required “without

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consideration of the economic circumstances of the defendant”); 18 U.S.C. § 3771(a)(6) (victims

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have a right to “full and timely restitution”); 18 U.S.C. § 3572(d) (restitution shall be paid

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“immediately” or within the “shortest time” reasonably possible).

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The Government has now twice filed declarations which incorrectly state that Mr. Durst owes $11,555,495.32.
(Dkt. Nos. 8 and 11.)

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Additional grounds for objection exist if arising from a default judgment, but not a criminal restitution debt. 28
U.S.C. § 3202(d)(3).

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Even if this Court were to consider financial hardship, Mr. Durst’s annual income is

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roughly $112,000. (Dkt. No. 6 at 6.) 3 Adding in his wife’s social security payments, Mr. Durst’s

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annual household income is about $120,000. (Dkt. No. 11-1 at 1.) Mr. Durst pays $1,256 a

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month in medical bills. (Id.) Taking that into account, Mr. Durst’s annual income is still

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$105,000. While the Court is sympathetic to Mr. Durst’s wife’s medical condition and necessary

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bills, they are insufficient to warrant a reduction in the amount garnished. Accordingly, the Court

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GRANTS the Government’s motion to issue a continuing garnishee order (Dkt. No. 7) and

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hereby ORDERS the following:

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(1) The Garnishee, CWD Group, Inc., shall pay to the United States District Court for the

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Western District of Washington, the non-exempt earnings payable to

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Defendant/Judgment Debtor Steven C. Durst, upon each period of time when

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Defendant/Judgment Debtor Durst is entitled to receive such funds, and shall continue

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said payments, if any, until Defendant/Judgment Debtor Durst’s debt is paid in full or

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until Defendant/Judgment Debtor is no longer an active employee of Garnishee and

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the Garnishee no longer has possession, custody, or control of any funds due and

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owing to the Defendant/Judgment Debtor or until further order of this Court. This

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includes all monies required to be previously withheld by the Garnishee, in

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accordance with the writ of continuing garnishment (Dkt. No. 3);

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(2) The Garnishee, CWD Group, Inc., shall pay to the United States District Court for the

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Western District of Washington, the entire amount (less federal tax withholdings paid

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to the Internal Revenue Service) of non-exempt property from any and all accounts in

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the Garnishee’s possession, custody, or control, in which the Defendant maintains an

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interest and meets the requirements to withdraw, but such amount shall not exceed the

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amount necessary to pay Mr. Durst’s restitution balance in full;

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From January through October, Mr. Durst earned $93,529. (Dkt. No. 6 at 6.) Earning $9,350 per month equals
$112,200 per year.

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(3) Such payment shall be applied to Defendant/Judgment Debtor Durst’s outstanding

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restitution obligation by the United States District Court for the Western District of

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Washington; and

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(4) The payment shall be made out to the United States District Court, Western District

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of Washington, referencing Case Nos. 2:06-CR-00278-RSM-1 and 2:17-CV-00240-

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JCC, 4 and to deliver such payment either personally or by First Class Mail to:

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United States District Court, Western District of Washington

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Attn: Financial Clerk – Lobby Level

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700 Stewart Street

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Seattle, Washington 98101

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DATED this 7th day of March, 2017.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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Formerly 2:16-MC-00167-RSL, this case was reassigned from Judge Lasnik to Judge Coughenour on February 16,
2017.

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