United States v. Robert Schwartz
503 F. App'x 443
6th Cir.2012Background
- Schwartz was charged in May 2009 with mail fraud and filing a false tax return and faced forfeiture of real property and a money judgment of $2,492,469.
- At plea, Schwartz admitted the fraud loss was $2,492,469 and restitution to Hadassah Hospital; forfeiture was not addressed in the plea agreement.
- Sentencing on June 8, 2010 ordered $3,227,686 restitution: $2,292,469 due immediately to Hadassah and $935,217 to the IRS due after release; also imposed prison and supervision terms.
- The government filed a motion for a forfeiture money judgment of $2,492,469 on June 7, 2010; the district court entered the money judgment over Schwartz’s objections.
- In October 2010 the government sought a writ of garnishment to satisfy restitution; the district court granted it and enforcement followed in 2011; Schwartz appeals the garnishment and the forfeiture rulings.
- Schwartz challenges lack of a preliminary forfeiture order under Rule 32.2, but the court ultimately holds any error harmless and affirms both the garnishment enforcement and the forfeiture judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether garnishment was proper to collect immediate restitution | Schwartz argues only unpaid restitution can be collected | Schwartz contends not all restitution was due yet | Affirmed; portion due immediately allowed garnishment |
| Whether the final forfeiture order was improper for lacking a preliminary order | Schwartz argues Rule 32.2 requires a preliminary order | Government says a preliminary order is not required for a money judgment forfeiture | Harmless error; final order affirmed |
| Whether restitution and forfeiture may be imposed together as distinct remedies | Schwartz hints joint imposition may be improper | Restitution and forfeiture are distinct and can both be required | Affirmed; both remedies properly imposed as separate, compatible aims |
Key Cases Cited
- United States v. Skidmore, 998 F.2d 372 (6th Cir. 1993) (specific performance of plea agreement where forfeiture omitted)
- United States v. Miller, 588 F. Supp. 2d 789 (W.D. Mich. 2008) (forfeiture and restitution interplay)
- United States v. Shakur, 691 F.3d 979 (8th Cir. 2012) (due process in criminal forfeiture proceedings)
- United States v. Gross, 213 F.3d 599 (11th Cir. 2000) (preliminary order final forfeit. rights under rule 32.2)
- United States v. Kalish, 626 F.3d 165 (2d Cir. 2010) (restitution and forfeiture permitted together)