1:25-cv-01133•United States of America v. Barber et al
Gesamter Gesetzestext
1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________ UNITED STATES OF AMERICA, Plaintiff, v. No. 1:25-CV-01133 CHARLES H. BARBER, (FJS/PJE) Defendant, v. ALDEN EQUIPMENT, INC., and CHEMUNG CANAL TRUST COMPANY, Garnishees. _____________________________________ APPEARANCES: OF COUNSEL: Office of the United States Attorney MELISSA O’BRIEN ROTHBART, ESQ. P.O. Box 7198 Assistant United States Attorney 100 South Clinton Street Syracuse, New York 13261 Attorney for plaintiff Charles H. Barber 306 Northwood Club Rd. Minerva, New York 12851 Defendant pro se PAUL J. EVANGELISTA U.S. MAGISTRATE JUDGE REPORT-RECOMMENDATION AND ORDER Plaintiff, the United States of America (“the Government”), applied for a Writ of Garnishment against pro se defendant, Charles H. Barber’s (“defendant”) 401(k) PSP account held by Alden Equipment, Inc. (“Alden”) and a personal Insured Money Management Account (“IMMA”) and checking account held by Chemung Canal Trust Company ( “Chemung Canal”). See Dkt. Nos. 1, 2. The defendant requested a hearing Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 1 of 10
2 regarding the garnishment of his “home improvement proceeds” and his “401k account.” Dkt. No. 15 at 2.1 The Government responds to the defendant’s objection and argues it is entitled to garnish the defendant’s 401(k) and personal IMMA and checking account and opposed the defendant’s request for hearing to consider the writs of garnishment. See Dkt. No. 16. The Court granted the defendant’s request for a hearing, and a hearing was held on October 9, 2025, by Microsoft Teams videoconference. See Dkt. No. 21 (Transcript). The defendant, pro se, and the Government, represented by Attorney O’Brien Rothbart, were both present. Following the hearing, the Court gave the parties an opportunity to submit additional evidence in support of the arguments presented. The defendant filed additional documentation on October 13, 2025. See Dkt. No. 20. For the following reasons, it is recommended that the Government’s Writs of Garnishment (Dkt. Nos. 1, 2) be granted to the extent outlined herein. I. Background A. Defendant’s Criminal Case On August 15, 2002, the defendant was found guilty by a jury of his peers of one count of theft of public funds, in violation of 18 U.S.C. § 641; thirteen counts of aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; four counts of aiding and abetting bankruptcy fraud, in violation of 18 U.S.C. §§ 157 and 2; two counts of aiding and abetting false oaths, in violation of 18 U.S.C. §§ 152 and 2; one count of false statements, in violation of 18 U.S.C. § 1001; and one count of conspiracy money laundering, in violation of 18 U.S.C. § 1956(h). See United States v. Charles H. Barber, 1 Page numbers refer to the numbers generated by the Court’s CM/ECF filing system located in the top right corner of the referenced document. Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 2 of 10
3 Case No. 1:00-cr-72-001-FJS, Criminal Dkt. No. 56. A (Second) Amended Judgment was filed against the defendant on December 14, 2006. See Dkt. No. 200. That Judgment directed the defendant to serve a total term of imprisonment of forty-eight months to be followed by five years of supervised release, imposed a $2,150.00 special assessment, and ordered the defendant to pay $5,734,360.95 in restitution to the victims of his crimes. See id. at 2, 3, 5, 6. The Court ordered that the restitution was due in full immediately. See id. at 6. The Court further ordered that if any balance remained, it would be paid at a “minimal rate of $500 a month or 10% of the defendant’s monthly earnings, whichever is greater after release.” Id. The Court also ordered that the defendant must notify the Court and the United States Attorney’s Office of any material change in his economic circumstances that might affect his ability to pay restitution. See id. at 1. The current balance owed for restitution as of September 22, 2025, is $5,329,724.50. See Dkt. No. 16-1 at 2 (Consolidated Debt Collection System Financial History Report).2 B. Civil Garnishment Case On August 21, 2025, the Government applied for two Writs of Continuing Garnishment (hereinafter, “the Writs”) to enforce the judgment [Dkt. No. 200] against the defendant. The first from Alden, because it believed that Alden had possession, custody, or control of substantial nonexempt property belonging to or due to the defendant, including nonexempt funds held in a retirement account. See Dkt. No. 1. The second Writ of Continuing Garnishment was sought from Chemung Canal, because it believed 2 Part of the relief defendant requested was for a copy of the current accounting of restitution due and owing. The defendant has received a copy of the Consolidated Debt Collection System Financial History Report; therefore, his request for an accounting is deemed moot. Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 3 of 10
4 that Chemung Canal had possession, custody, or control of substantial nonexempt property belonging to, or due to, the defendant, including nonexempt funds held in a retirement account. See Dkt. No. 2. The undersigned granted the Writs on August 11, 2025. See Dkt. Nos. 3, 4. They were issued the following day. See Dkt. Nos. 5, 6. The garnishee Chemung Canal filed its answer to the writ on September 5, 2025, indicating it had possession of three Financial Accounts. See Dkt. No. 12 at 2. Specifically, Chemung indicated that it was in possession of a personal IMMA valued at approximately $100,850.33, a free checking account valued at approximately $19,646.50, and a business checking account valued at $1,222.78.3 See id. On September 15, 2025, the garnishee Alden filed its answer, in which it indicated that it was in possession of a 401(k) PSP account valued at approximately $102,805.78. See Dkt. No. 14 at 2. On September 18, 2025, the defendant filed an objection to the Writs, along with a request for a hearing regarding the garnishment of “our home improvement proceeds and my 401k account.” Dkt. No. 15. In his letter request, the defendant does not allege any exemptions under federal law. See Dkt. No. 15 at 1, 3. Rather, he asks the Court to determine, “(1) an amount that I owe as missed monthly payments, and (2) either a monthly payment amount that I must continue paying, or a final negotiated sum that can be paid from my 401k to close out the remaining 28 months of my obligation.” Dkt. No 15 at 5. The Government responded in opposition arguing (1) garnishment of the defendant’s 401(k), personal IMMA, and free checking account is proper, and the 3 The government is not seeking to garnish the business checking account, owned by Global Distributions Group Inc. See Dkt. No. 16 at 3. Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 4 of 10
5 defendant is not entitled to a hearing under 28 U.S.C. § 3202(d) of the Federal Debt Collection Procedures Act (“FDCPA”) See Dkt. No. 16. The Court granted the defendant’s request for a hearing. See Dkt. No. 18. On October 9, 2025, the Court held the hearing. Both sides presented their arguments, and the Court gave both sides an opportunity to supplement their respective positions with additional evidence as needed. On October 13, 2025, the defendant filed a letter with additional information and attached a “Joint Loan Closing Disclosure,” setting forth the terms of a loan the defendant and his wife entered with KeyBank National Association. See Dkt. Nos. 20, 20-1. In his letter, the defendant sets out additional information concerning his 401(k) account and a Chemung (Capital) Bank Checking Account. See id. II. Analysis The Mandatory Victims Restitution Act, 18 U.S.C. §3663 et seq. (“MVRA”) governed the defendant’s sentencing. Under the MVRA, the government may enforce restitution against all property and rights to property the defendant owns. See 18 U.S.C. § 3613(a). The government enforces restitution orders in the same manner as a criminal fine. See 18 U.S.C. §§ 3613(f), 3664(m)(1). The Federal Debt Collection Procedures Act, 28 U.S.C. § 3001, et seq. ( “FDCPA”) provides the exclusive remedies for the government to collect a judgment on a debt, including restitution and criminal fines. See 28 U.S.C. §§ 3001(a), 3002(3). The government may enforce restitution through a writ of garnishment under the FDCPA. See 28 U.S.C. § 3205(c); see also United States v. Cohan, 798 F.3d 84, 89 (2d Cir. 2015) (“The government may enforce restitution orders Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 5 of 10
6 arising from criminal convictions using the practices and [civil] procedures for the enforcement of a civil judgment under federal or state law as set forth in the [FDCPA].”). 28 U.S.C. § 3202 states, (d) Hearing.--By requesting, within 20 days after receiving the notice described in section 3202(b), the court to hold a hearing, the judgment debtor may move to quash the order granting such remedy. The court that issued such order shall hold a hearing on such motion as soon as practicable, or, if so requested by the judgment debtor, within 5 days after receiving the request or as soon thereafter as possible. The issues at such hearing shall be limited— (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 . . . . 28 U.S.C. § 3202. The garnishment statute also provides: (7) Disposition order — After the garnishee files an answer and if no hearing is requested within the required time period, the court shall promptly enter an order directing the garnishee as to the disposition of the judgment debtor’s nonexempt interest in such property. If a hearing is timely requested, the order shall be entered within 5 days after the hearing, or as soon thereafter as is practicable. 28 U.S.C. § 3205(c)(7). The Court granted a hearing in order to give the pro se defendant a full opportunity to address the two relevant issues before this Court: (1) the probable validity of any claim of exemption he raised, and (2) whether the government complied with any statutory requirements for the issuance of an Order of Garnishment to the garnishees requiring that they turn over to the government all of the funds held under their control. See generally Dkt. No. 18. The defendant has not raised any valid claim of exemption for any of his accounts. See 18 U.S.C. §3613(a)(1) lists the types of property that are deemed exempt for purposes of enforcing restitution. Pursuant to the statute, exempted property includes “(1) property exempt from levy for taxes pursuant to section 6334 (a)” Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 6 of 10
7 of the Internal Revenue Code (26 U.S.C.). See 18 U.S.C. § 3613(a)(1). For criminal debts such as restitution, the only categories of exempt property are: (1) wearing apparel and school books; (2) fuel, provisions, furniture, and personal effects; (3) books and tools of a trade, business, or profession; (4) unemployment benefits; (5) undelivered mail; (6) annuity or pension payments under certain, specified federal statutes; (7) workmen’s compensation; (8) judgments for support of minor children; (9) certain service-connected disability payments; (10) assistance under the Job Training Partnership Act. See id. The MVRA provides that a restitution order “may be enforced against all property or rights to property” of the defendant, “[n]otwithstanding any other Federal law.” 18 U.S.C. § 3613(a). Thus, the MVRA, by its express terms, overrides, e.g., the anti-alienation provisions of any other statute that might shield assets from collection. See United States v. Irving, 452 F.3d 110, 126 (2d Cir. 2006). The defendant’s 401k is not exempt from collection. See United States v. Shkreli, 47 F.4th 65, 72 (2d Cir. 2022) (The MVRA demands that restitution orders are enforced in the same manner as tax levies, which can be enforced against ERISA-protected assets.). “That the MVRA permits the Government to garnish ERISA-protected retirement funds does not end the inquiry. The relevant question becomes, what is the defendant's “property” interest in his 401(k) account?” Shkreli, 47 F.4th at 73. The Government, in seeking garnishment, “‘steps into the defendant's shoes,’ and acquires whatever rights the [defendant] himself possesses.’” Id. (quoting U.S. v. Nat’l Bank of Com., 472 U.S.713, 725 (1985)). Here, the government’s right to garnishment is analogous to the Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 7 of 10
8 rights defendant possesses to withdraw funds from the 401(k) PSP account held by Alden. Likewise, the defendant has not presented, nor has the Court discerned, any grounds on which to exempt the personal IMMA, valued at approximately $100,850.33 and a free checking account, valued at approximately $19,646.50, both held by Chemung. The record is void of any viable arguments or evidence that the funds in the personally-held accounts at Chemung Canal belonging to the defendant are subject to any claim of exemption.4 The accounts do not fall within the list of exempted property set out in 18 U.S.C. § 3613(a)(1). Like the 401(k), the government’s right to garnishment is analogous to the rights the defendant possesses to the accounts. The record establishes that the accounts are solely held by the defendant. See generally, Dkt. No. 21 at 10, 11, 13. Regarding the second issue before the Court, specifically, compliance with any statutory requirement for the issuance of the post-judgment remedy granted, namely, a writ of garnishment against the named accounts, the defendant does not raise any allegations of non-compliance. The government has established that it has complied with the requirements of the garnishment statute: (1) it has served proper notice of the garnishments upon the defendant and the garnishees; and (2) it has not sought the garnishments here until thirty days after it made demand upon the defendant for payment of his debt. See generally Dkt. Nos. 1-14.5 Therefore, it is recommended that 4 The undersigned has specifically considered the argument that the monies in the IMMA account are the proceeds of a home improvement loan. The fact that these monies are held in the defendant’s personal accounts and home improvement loan proceeds are not on the list of exempted property in 18 U.S.C. §3613(a)(1), lead the undersigned to reject the defendant’s claim for exemption on this ground. 5 The other arguments the defendant raises, in which he generally seeks this Court to revisit the amount restitution due and owing and/or the terms of repayment on the balance of restitution outstanding, are outside the scope of the matter before this Court. See 28 U.S.C.§ 3202(d). Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 8 of 10
9 that the government’s Writ of Continuing Garnishment on the 401(k) account held by Alden and the Writs of Continuing Garnishment on the IMMA account and the free checking account, both held by Chemung Canal, be granted. Finally, the defendant asks the Court to determine, “(1) an amount that I owe as missed monthly payments, and (2) either a monthly payment amount that I must continue paying, or a final negotiated sum that can be paid from my 401(k) to close out the remaining 28 months of my obligation.” Dkt. No 15 at 5. Beyond providing the defendant with an accounting of the outstanding restitution, as contained in the Consolidated Debt Collection System Financial History Report, previously provided to the defendant and which he has acknowledged receiving, see Dkt. No. 21 at 24, the relief the defendant seeks is not properly before the Court6 and has already been established in prior proceedings. See Dkt. No. 15 at 5. Therefore, it is recommended that the Court deny the defendant’s request to modify the terms of his restitution, without prejudice to seek relief if appropriate in the future.7 III. Conclusion WHEREFORE, based on the findings set forth above, it is hereby: RECOMMENDED, that plaintiff’s Writ of Continuing Garnishment (Dkt. Nos. 1, 2) be GRANTED; and it is further RECOMMENDED, that the defendant’s request for modification be DENIED, without prejudice; and it is 6 28 U.S.C. § 3202 (d), as discussed supra at 6, limits the issues before the Court. 7 The Court agrees with the government that the time within which to file an appeal in this case has long passed and notes that modification can be granted in very limited, specific circumstances. Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 9 of 10
10 ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order on all parties in accordance with Local Rules. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 6(a), 6(e), 72.8 Dated: November 17, 2025 Albany, New York 8 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. See F ED. R. C IV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(C). Case 1:25-cv-01133-FJS-PJE Document 22 Filed 11/17/25 Page 10 of 10
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