United States of America v. 09-0255-cr NIELS H. LAUERSEN

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________
August Term, 2010
(Argued: May 25, 2011 Decided: June 7, 2011)
Docket No. 09-0255-cr
____________________
UNITED STATES OF AMERICA,
Appellee,
v. 09-0255-cr
NIELS H. LAUERSEN,
Defendant-Appellant.
_____________________
Before: McLAUGHLIN, POOLER, and SACK, Circuit Judges.
Defendant Niels H. Lauersen, subject to delinquency and default penalties under 18
U.S.C. § 3612(g) for failure to pay restitution and a fine arising from his criminal conviction,
appeals the December 31, 2008 order of the District Court for the Southern District of New York
(Pauley, J.), denying Lauersen’s request that the district court waive or reduce such penalties.
Lauersen argues that the district court erred by finding that it lacked the authority under Section
3612 to waive all or part of Lauersen’s delinquency and default penalties. We disagree with
Lauersen. Only the Attorney General, not a district court, may waive all or part of a delinquency
or default penalty properly assessed pursuant to Section 3612(g). Affirmed.
____________________
Michael M. Rosensaft, Justin S. Weddle (on the brief), Assistant
United States Attorneys, for Preet Bharara, United States Attorney
for the Southern District of New York, New York, NY, for
Appellee.
Gerald L. Shargel, Law Offices of Gerald L. Shargel, New York,
NY, for Appellant.
09-0255-cr
USA v. Lauersen

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PER CURIAM:
Appellant Niels H. Lauersen appeals from a December 31, 2008 order of the District
Court for the Southern District of New York (Pauley, J.), denying Lauersen’s request that the
district court waive or reduce delinquency and default penalties imposed pursuant to 18 U.S.C.
§ 3612(g). Lauersen was responsible for paying restitution and a fine arising from his criminal
conviction, yet he was delinquent (more than 30 days late) and in default (more than 90 days
late) with regard to significant amounts of these obligations. The Attorney General notified
Lauersen of his delinquency and default, and pursuant to Section 3612(g) the district court
imposed penalties of 10% of the principal amounts that were delinquent and an additional 15%
of the principal amounts in default. The district court rejected Lauersen’s motion to waive such
penalties, stating that only the Attorney General, not the district court, has authority to waive all
or part of delinquency and default penalties under Section 3612(g). We agree and therefore
affirm the order of the district court.
As an initial matter, we decline to address the arguments that Lauersen raises for the first
time on appeal, including counsel’s argument that the Government provided insufficient notice
of Lauersen’s delinquency and default. Lauersen did not present these arguments to the district
court in connection with the order from which Lauersen appeals and we find no reason to depart
from the general rule that we will not consider issues raised for the first time on appeal. See
Universal Church v. Geltzer, 463 F.3d 218, 228 (2d Cir. 2006). However, Lauersen has
adequately challenged the district court’s holding that it lacked authority to waive all or part of
Lauersen’s delinquency and default penalties under 18 U.S.C. § 3612.
This Court reviews a district court’s conclusions of law de novo. See, e.g., United States
v. Turk, 626 F.3d 743, 747 (2d Cir. 2010); Ehrenfeld v. Mahfouz, 489 F.3d 542, 547 (2d Cir.
2007). Here, the district court denied Lauersen’s motion for waiver of delinquency and default

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penalties because the Government did not waive the penalties and the district court concluded
that “a waiver or reduction of penalties under § 3612(h) requires the Government’s petition.”
United States v. Lauersen, No. 98 Cr. 1134 (WHP), 2008 WL 5416377, at *2 (S.D.N.Y. Dec. 31,
2008).
Section 3612 concerns the collection of unpaid criminal fines or restitutions. As relevant
here, the Attorney General is “responsible for collection of an unpaid fine or restitution” that the
district court properly certifies. 18 U.S.C. § 3612(c). If a defendant is more than 30 days late
paying a fine or restitution, he is delinquent. Id. § 3572(h). If a defendant is then delinquent for
more than 90 days, he is in default. Id. § 3572(i). Section 3612 mandates substantial financial
penalties for delinquency or default of a fine or restitution: “the defendant shall pay” 10% of the
principal amount that is delinquent and an additional 15% of the principal amount that is in
default. Id. § 3612(g); United States v. Pescatore, 637 F.3d 128, 144 (2d Cir. 2011).
In addition, Section 3612 requires that defendants “shall pay interest,” according to a
statutory formula, on fines or restitutions not paid in full within fifteen days of the judgment. 18
U.S.C. § 3612(f)(1)-(2). Congress specified that a district court may waive or modify the
interest due if it “determines that the defendant does not have the ability to pay interest.” Id.
§ 3612(f)(3). Moreover, Congress empowered the Attorney General to waive all or part of the
interest or penalty if it determined that “reasonable efforts to collect the interest or penalty are
not likely to be effective.” Id. § 3612(h).
These requirements regarding payment of interest and delinquency and default penalties
date back to the Criminal Fine Improvements Act of 1987, Pub. L. No. 100-185, § 11, 101 Stat.
1279, 1283-85 (1987). Congress added both the interest and penalty requirements at the same
time, in the same statute. As is true today, Congress provided that both district courts and the
Attorney General may waive all or part of the specified interest on fines. However, Congress

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provided that only the Attorney General may waive all or part of specified delinquency and
default penalties. Congress could have given district courts similar authority for delinquency
and default penalties, but it did not.
Generally, we presume that Congress expresses its intent through the language it chooses.
See, e.g., Holloway v. United States, 526 U.S. 1, 6 (1999). Congress granted district courts the
power to waive or modify interest obligations, while granting only the Attorney General the
authority to waive all or part of delinquency and default penalties – and it did so within the same
Act, codified in the same section of the United States Code. Therefore, we cannot lightly
presume that Congress meant to implicitly grant district courts authority equivalent to the
Attorney General’s for delinquency and default penalties. Indeed, Congress explicitly detailed
the circumstances under which delinquency and default penalties could be waived. Section 3612
provides that “[t]he Attorney General may waive all or part of any interest or penalty under this
section . . . if, as determined by the Attorney General, reasonable efforts to collect the interest or
penalty are not likely to be effective.” Id. § 3612(h) (emphases added). Unlike the interest
modification provision in Section 3612(f), Congress specified that the Attorney General, not the
district court, may waive all or part of the penalty. Id. § 3612(h). Congress clearly expressed its
intent to withhold such discretion from district courts. Cf. Elkins v. Moreno, 435 U.S. 647, 665-
66 (1978) (finding absence of restriction in one part of statute was “pregnant” when contrasted
with other parts of statute, which included that restriction).
Section 3612(b)(1), which specifies the information that district courts must include in
“[a] judgment or order imposing, modifying, or remitting a fine or restitution order of more than
$100,” is not to the contrary. 18 U.S.C. § 3612(b)(1) (emphases added). Section 3612 does not
prohibit district courts from modifying or remitting a fine or restitution order. Instead, Section
3612 sets penalties for delinquent or defaulted payments of fines or restitution orders and

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specifies who may waive such penalties in full or in part. Section 3612 itself does not authorize
district courts to waive either fines and restitutions or delinquency and default penalties. The use
of the words “modifying” and “remitting” in Section 3612(b)(1) merely reflects that some types
of fines and restitution orders may be modified or remitted, and for those, as for the original
imposition thereof, the district court must include certain information in the judgment. Id.;
accord United States v. Roper, 462 F.3d 336, 340 (4th Cir. 2006). This language does not
suggest that delinquency and default penalties themselves may be modified by district courts.
Indeed, Section 3612(b) explicitly mentions modifying or remitting only fines and restitution
orders – not delinquency and default penalties.
Nor does 18 U.S.C. § 3664(k) provide a district court with authority to waive all or part
of delinquency or default penalties. Section 3664(k) allows a district court to “adjust the
payment schedule” for “[a] restitution order,” not to waive all or part of delinquency and default
penalties that have been assessed under Section 3612. Lauersen does not argue that the district
court erred in failing to adjust the payment schedule for his order of restitution. Instead,
Lauersen argues that the district court erred by failing to “waive or reduce the penalties that have
been assessed” on Lauersen’s delinquent and defaulted fine and restitution. We reject this
argument. Section 3664(k) does not authorize the district court to waive all or part of
delinquency or default penalties.
Although we find the statutory language of Section 3612 clear, we note that the
legislative history also indicates that Congress did not intend to authorize district courts to waive
delinquency and default penalties under Section 3612 absent a waiver by the Attorney General.
In the House Report for the Criminal Fine Improvements Act of 1987, the Judiciary Committee
stated that under Section 3612(f), “[i]mposition of interest [on fines] . . . is at the court’s
discretion.” H. Rep. 100-390, at 11 (1987). In contrast, the House Report notes that Section

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3612(g) “imposes an automatic 10 percent penalty for any amount of the principal portion that
has become delinquent and an additional 15 percent penalty for any amount of the principal
portion of a fine that is in default.” Id. (emphasis added). The legislative history does not
suggest that district courts may decide that, given the circumstances, a defendant should pay,
say, 7.5% of the principal amount that is delinquent or, say, 11% of the principal amount that is
in default. Instead, the respective 10% and 15% penalties are “automatic,” requiring no finding
by the district court about the defendant’s ability to pay the penalty. Although district courts
lack the power to waive all or part of a delinquency or default penalty, the House Report noted
that Section 3612(h) “authorizes the Attorney General to waive, without court order, all or part
of interest and penalties owed.” H. Rep. 100-390, at 11 (1987) (emphasis added). Thus, both the
text of Section 3612 and its legislative history indicate that, rather than involving district courts
in the decision to waive delinquency and default penalties, Congress purposefully left the
decision to the Attorney General. Nor has this changed in the years after Congress passed the
Criminal Fine Improvements Act of 1987. As relevant to this appeal, Section 3612 has changed
little since the Criminal Fine Improvements Act of 1987, aside from an expansion in 1996 to
cover unpaid restitution in addition to unpaid fines. See Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, § 207(c)(2), 110 Stat. 1214, 1237-38 (1996).
We conclude that the district court correctly interpreted Section 3612(h) as authorizing
only the Attorney General, in its discretion, to waive all or part of delinquency and default
penalties properly assessed pursuant to Section 3612(g). See 18 U.S.C. § 3612(h). Therefore,
the district court properly denied Lauersen’s motion for waiver of his delinquency and default
penalties.
We have considered all of Lauersen’s remaining arguments and find them to be without
merit. For the foregoing reasons, we AFFIRM the order of the district court.

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