United States v. SaemischUnited States v. Saemisch
Zainabu Rumala, Assistant Federal Public Defender, for appellant.
Raquelle L. Kaye, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.
SELYA, Circuit Judge. This appeal requires us, for the first time, to address the so-called “turnover” statute. See
I
We briefly rehearse the relevant facts and travel of the case. In March of 2019, a jury convicted defendant-appellant Christopher Saemisch of distributing child pornography. See
The district court‘s restitution order, incorporated in its amended judgment, fixed the restitution amount at $18,000. Additionally, the order stated that “[p]ayment of the restitution shall begin immediately and shall be made according to the requirements of the Federal Bureau of Prisons’ Inmate Financial Responsibility Program while the [appellant] is incarcerated and according to a court-ordered repayment schedule during the term of supervised release.”
During the appellant‘s incarceration, the government learned that his inmate trust account — an account maintained for him by the Bureau of Prisons (BOP) into which “[f]amily, friends, or other sources” may make deposits,
Proceeding pro se, the appellant opposed the motion. He explained that — between October 1, 2020 and August 13, 2021 — he had received money from three principal sources: $10,555 from the settlement of a lawsuit brought to recover the value of items stolen from him after he was arrested; $1,725 in COVID-related stimulus checks issued by the federal government, see
Relatedly, the appellant noted that he was participating in the BOP‘s Inmate Financial Responsibility Program (IFRP). See
Against this backdrop, the appellant argued that turnover of his accumulated funds was not warranted for four reasons. First, he argued that his direct appeal was pending and that, therefore, the turnover motion was premature.3 Second, he argued that both the funds obtained from the lawsuit and the stimulus checks were beyond the reach of the turnover statute because they were not income. Third, he argued that the stimulus checks were exempt from turnover becausе Congress intended that money to be used to bolster the economy. Fourth, he argued that, as required by the court‘s earlier order, he had made all payments required by the IFRP in a timely manner.
The district court found the appellant‘s objections wanting. Citing
II
The appellant is nоw represented by counsel, and he challenges the district court‘s decision to grant the turnover motion. Viewed from a high level of generality, he advances two contentions. First, he contends that the turnover order “impermissibly supersede[s]” provisions in the restitution order that dictate both the timing and amount of his restitution payments. Second, he contends that — even if the turnover order is not entirely invalid — the district court needed to make certain factual findings before it granted the government‘s motion.
We assume, favorably to the appellant, that these claims of error are preserved. Cf. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (explaining that pro se filings are “to be liberally construed“). Consequently, we review the district court‘s turnover order for abuse of discretion. See United States v. Kidd, 23 F.4th 781, 785 (8th Cir. 2022); United States v. Rand, 924 F.3d 140, 142 (5th Cir. 2019) (per curiam). Within that rubric, we “examin[e] the court‘s subsidiary factual findings for clear error and its answers to abstract legal questions de novo.” United States v. Chiaradio, 684 F.3d 265, 283 (1st Cir. 2012); see United States v. Troy, 618 F.3d 27, 35 (1st Cir. 2010) (noting that “questions of statutory interpretation . . . entail de novo review“).
III
A
We start with the appellant‘s contention that the turnover order is invalid because it “impermissibly supersede[s]” provisions in the restitution order. Because this contention is premised on a perceived conflict between the terms of the two orders, some context is useful.
As noted above, the appellant‘s restitution order stated that he was to “begin [payment of restitution] immediately.” The order specified that “[p]ayment of the restitution . . . shall be made according to the requirements of the [IFRP] while the [appellant] is incarcerated.” Although the restitution order does not otherwise describe the IFRP‘s payment terms, the record makes manifest that the IFRP requires the appellant to allocatе fifty percent of his monthly wages to restitution. The appellant contends that, because the restitution order requires payments to be made “according to . . . the [IFRP],” the district court could not authorize turnover of any amount exceeding fifty percent of his monthly wages unless the court first amended the restitution order. We do not agree.
Congress has directed district courts to “issue[] and enforce[]” restitution orders under the Mandatory Victims Restitution Act (MVRA),
By its terms, this statutory provision establishes a conditional obligation that extends to incarcerated defendants who owe restitution. That conditional obligation is triggered by a defendant‘s receipt of “substantial resources,”
In the case at hand, the district court found that the appellant received funds that qualified as “substantial resources” under section 3664(n). The appellant‘s settlement payment easily fits within that taxonomy. See
Inasmuch as the appellant plainly received funds falling under the umbrella of section 3664(n), his argument necessarily hinges on whether the district court could compel him to apply those funds to his unpaid restitution obligation and, if so, whether the court could require that he apply those funds immediately as a lump-sum payment. The appellant posits that resolving these issues requires us to determine the extent to which the turnover order conflicts with the terms of the restitution order. In his view, the restitution order establishes a payment plan (the IFRP) that limits the amount of money he is required to pay toward restitution to fifty percent of his monthly wages. By applying a lump sum that greatly exceeds fifty percent of his wages to his restitution obligation, the appellant‘s thesis runs, the turnover order contravenes the terms of the restitution order.
Building on this foundation, the appellant suggests that — in the absence of either amendment of the restitution order or a default on the payment plan — there is no justification for
The government approaches the issue from a different angle. It says that — through section 3664(m) of the MVRA — Congress empowered the district court to enforce orders of restitution in several ways. One such way is to compel a defendant to turn over the full value of any windfall that he receives while in prison. See
The government‘s approach is more consistent with the text and purpose of both the MVRA generally and section 3664(n) specifically. Through the MVRA, Congress sought “to ensure that victims of a crime receive [prompt and] full restitution.” Dolan v. United States, 560 U.S. 605, 612 (2010). As one means of achieving that goal, Congress expanded the government‘s authority to enforce orders of restitution. See United States v. Ridgeway, 489 F.3d 732, 736 n.6 (5th Cir. 2007) (stating that, in enacting the MVRA, Congress “g[ave] the [g]overnment a broader grant of authority to enforce restitution orders“). In addition, Congress supplied the government with a better stocked armamentarium for collecting unpaid restitution. Although Congress specifically enumerated certain of the mechanisms within this armamentarium,
see, e.g.,
In this case, the district court — through its reference to
The MVRA does not define what it means for a method of enforcement to be “available.” “When Congress uses a tеrm in a statute and does not define it, we generally assume that the term carries its plain and ordinary meaning.” City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020); see Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 553 (2014). The plain and ordinary meaning of the term “available” is “capable of use for the accomplishment of a purpose” or “immediately utilizable.” Available, Webster‘s Third New International Dictionary (1993); see Available, Oxford English Dictionary Online (3d ed. 2022) (defining “available” as “[a]ble to be used” or “at one‘s disposal“).
The district court‘s order plainly indicates that the court understood the turnover of the funds in the appellant‘s inmate trust account to be an immediately utilizable means through which the appellant could be compelled to satisfy his outstanding restitution obligation. So, too, the order plainly indicates the court‘s understanding that such a turnover was justified by section 3664(n). We conclude that both the structure and the text of the MVRA support this decision.
In reaching this conclusion, we are guided by the tenet that statutory provisions must be interpreted by reference to the structure and context of the broader statutory scheme in which they reside. See Abramski v. United States, 573 U.S. 169, 179 (2014); see also United States v. Seward, 967 F.3d 57, 66 (1st Cir. 2020). The MVRA
We add, moreover, that the text of section 3664(n) reinforces the idea that district courts retain broad discretion in determining how the value of the substantial resources may be put toward restitution. In enacting section 3664(n), Congress established a clear directive: a defendant must “apply” the value
of the newly received substantial resources to restitution.
As we have written in other settings, “[r]easonableness is a concept, not a constant.” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc) (quoting United States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990)). “What is ‘reasonable‘” will “necessarily var[y] from case to case.” Lopez v. Garriga, 917 F.2d 63, 69 (1st Cir. 1990). Thus, “[w]hat is reasonable in one set of circumstances may be unreasonable in another set of circumstances.” United States v. Pagán-Rodríguez, 600 F.3d 39, 42 (1st Cir. 2010). And some cases will be on the margin, requiring the district court to choose between reasonable, but conflicting, alternatives.
Here, the district court‘s decision to require immediate payment was reasonable under the circumstances. Although the appellant complains that he needs the money targeted for turnover for communication purposes and hygienic items, there is nothing in
the record to suggest that his future earnings will be insufficient to cover those costs. After all, the appellant does not dispute that he will continue to earn income through his job at the prison. He will retain fifty percent of his prison wages under the IFRP. The retained portion will enable him to satisfy his general needs to the extent that those needs are not already met by the BOP. See United States v. Lillard, 935 F.3d 827, 835 (9th Cir. 2019) (explaining that section 3664(n) only applies to defendant‘s receipt of substantial resources during period of incarceration “because, during such a period, defendants can rely on the [BOP] to provide for their subsistence needs“).
What is more, the district court‘s turnover order is in keeping with Congress‘s expressed intent in enacting both section 3664(n) and the MVRA writ large. In enacting section 3664(n), Congress sought to ensure “that windfalls received by prisoners from all sources . . . will go to pay victims” and “not to the prisoner.” 142 Cong. Rec. S3379 (1996) (statement of Sen. Charles Grassley). That intent matches the intent that underlies the MVRA as a whole: “ensur[ing] that victims of a crime receive [prompt and] full restitution.” Dolan, 560 U.S. at 612. The district court‘s decision to require immediate payment of what remains of the appellant‘s windfall amount serves both of these aims. That fact — coupled with the appellant‘s failure tо show a demonstrated
need for the funds — anchors our conclusion that the district court‘s requirement of immediate payment was reasonable.
Contrary to the appellant‘s importunings, the mere circumstance that the restitution order contains a payment schedule does not demand a different result.4 When a defendant obtains substantial resources while in prison, section 3664(m)(1)(A)(ii) and section 3664(n), in combination, empower the district court to enforce the defendant‘s obligation to apply newly emergent funds, constituting substantial resources, toward unpaid restitution immediately, notwithstanding the existence of a payment schedule. See Rand, 924 F.3d at 142-44 (explaining that payment schedule does not function as “shield against collection” and permitting turnover notwithstanding fact that defendant‘s restitution payments were not to begin, under existing order, until after release from prison).
This case illustrates the practical wisdom of such a rule. The payment schedule contained in the initial restitution order only accounted for funds that the appellant either possessed or was reasonably expected to possess when the order was entered. See
The appellant‘s reliance on Hughes, 914 F.3d at 949, and United States v. Martinez, 812 F.3d 1200, 1207 (10th Cir. 2015), is mislaid. Neither of those cases turned on an inmate‘s receipt of substantial resources. See Hughes, 914 F.3d at 951; Martinez, 812 F.3d at 1203-07.
C
We summarize succinctly. Section 3664(m)(1)(A)(ii) authorizes the use of all “available and reasonable means” to enforce restitution.
proceeds, an order requiring the application of those funds to an outstanding restitution obligation is permissible as long as the timing and manner of their application is reasonable. Here, the court‘s decision to compel the appellant to apply almost the entire balance of his windfall to unpaid restitution without delay was reasonable under the circumstances.
That ends this aspect of the matter. We hold that — under
This leaves the appellant‘s assertion that the district court overstepped the bounds of its discretion by ordering the turnover of substantial resоurces without first making certain antecedent factual findings. That assertion encompasses two independent claims, which we treat separately.
A
We begin with the appellant‘s claim that the district court was required to assess his financial circumstances before granting the government‘s turnover motion. In particular, the appellant contends that the court needed to consider the matters limned in
assets, projected earnings, and financial obligations. We think not.
By its terms, section 3664(f)(2) only applies when the district court is fashioning its original restitution оrder. See United States v. Tarnawa, 26 F.4th 720, 724 (5th Cir.), cert. denied, 142 S. Ct. 2887 (2022); Lillard, 935 F.3d at 834-35. The statute‘s commands have no application to a district court‘s decision to authorize a turnover under sections 3664(m) and (n).
The text of section 3664(f)(2) leads inexorably to this conclusion. The statute states that it applies “[u]pon [the court‘s] determination of the amount of restitution owed to each victim.”
To cinch the matter, the statute is framed as a set of instructions regarding the infоrmation that the district court must include “in the restitution order.”
The structure of section 3664(n) fortifies this conclusion. Unlike section 3664(f), section 3664(n) does not contain any reference to factors relating to a defendant‘s financial condition. That omission is critically important, given that courts generally should presume that Congress “acts intentionally when it uses particular language in one section of a statute but omits it in another.” Dep‘t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015); see United States ex rel. Heineman-Guta v. Guidant Corp., 718 F.3d 28, 35 (1st Cir. 2013). Giving weight to that presumption here, it is conspicuously clear that Congress‘s decision not to embed in section 3664(n) language directing courts to consider a defendant‘s financial circumstances was deliberate and that, therefore, Congress did not intend that such factors should inform the turnover calculus.
That is game, set, and match. We hold that thе district court did not abuse its discretion by issuing the turnover order without making any findings anent the section 3664(f)(2) factors.
B
Sounding a loosely related theme, the appellant argues that the district court needed to make a different collocation of findings. In his view, the court had to identify and “distinguish[]” the source of the funds in his trust account and determine whether those funds could be applied
To put this argument into perspective, we note that a total of $12,280 in funds that fit within the “substantial resources” taxonomy were deposited into the appellant‘s inmate trust account between November of 2020 and March of 2021. Five months then elapsed before the government moved for a turnover order in August of 2021.
In the nine-month period between the time when the appellant received the first windfall payment and the time when the government moved for a turnover order, the “substantial resources” deposited into the account were comingled with other funds (such as the appellant‘s prison wages). The appellant contends that this comingling is significant because neither prison wages nor the gradual accumulation thereof trigger thе possibility of turnover under sections 3664(m) and (n). See Hughes, 914 F.3d at 951; see also Carson, 55 F.4th at 1057; Kidd, 23 F.4th at 787.
During the same period, money also flowed out of the account: the appellant made expenditures for books, gifts, purchases from the commissary, and other sundries. After accounting for the more than one hundred transactions (including both deposits and withdrawals) that occurred within this time frame, the account held a balance of $10,956.36. The government‘s motion sought turnover of that amount.
Seizing upon the fact that his trust account contained a mixture of funds, some of which triggered the possibility of turnover and some of which did not, the appellant argues that — before the district court could order the turnover of a sum of money from the account — it should first have identified the source of that money and restricted any turnover to funds that could specifically be earmarked as “substantial resources.” We think that this suggestion overstates the district court‘s duty.
Of course, a district court must examine the source or sources of an inmate‘s account before it may order the turnover of funds contained in that account under sections 3664(m) and (n). See Kidd, 23 F.4th at 783-85, 787-88 (vacating turnover whеn source of funds in inmate‘s account was “unknown“). If the examination discloses that the account is comprised, wholly or partially, of funds properly characterized as “substantial resources,” then that account — up to the total amount of the “substantial resources” — may be targeted in a turnover order. See id. at 787. If, however, the examination discloses that the monies in the account consist only of gradually accumulated prison wages or other funds that do not qualify as “substantial resources,” section 3664(n) is not implicated and the district court mаy not enter a turnover order under sections 3664(m) and (n). See id.; Hughes, 914 F.3d at 951.
In this instance, an examination of the trust account shows that the balance derived from a combination of sources,
including the appellant‘s prison wages. That comingling, the appellant contends, required the district court to conduct additional factfinding to trace the source of every dollar remaining in his trust account and isolate the amount that stemmed from his UNICOR wages. This contention is ill-conceived. Where, as here, a district court finds that funds that constitute substantial resources havе been comingled with other funds in a single account, the court should consider whether it is practicable to segregate the amount of money derived from substantial resources.
But money is fungible, see United States v. Rivera-Izquierdo, 850 F.3d 38, 45 n.6 (1st Cir. 2017), and in many cases it will be
important limiting principle is that the district court‘s turnover order must be in an amount that is reasonable under the circumstances. See
The order appealed from satisfies these criteria. Although the court did not expressly consider whether it was practicable to determine how much of the appellant‘s account balance derived from substantial resources, the record makes pellucid that — given the pervasive comingling — it would have been impossible for the court to segregate the funds that triggered the possibility of turnover from those that did not. Thus, it was sufficient for the court to find — as it did — that the appellant had received substantial resources totaling $12,280, which had been deposited into his trust account. That figure then became the ceiling for a turnover order, and the court‘s decision to order the immediate turnоver of $10,956.36 was reasonable (especially since the reason that the account held less than $12,280 was that the appellant had already spent some of the money).
Given this reasoning, we reject the appellant‘s claim that additional factfinding was required. Relatedly, we hold that the turnover order was within the ambit of the district court‘s discretion.
V
We need go no further. For the reasons elucidated above, the turnover order is
Affirmed.