USA v. Tucker

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
UNITED STATES OF AMERICA,
Plaintiff,
vs.
REX. S. TUCKER, JR.,
Defendant.
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Case No. 3:13-cr-00078
District Judge Thomas M. Rose
Magistrate Judge Caroline H. Gentry
REPORT AND RECOMMENDATION
This matter is before the undersigned Magistrate Judge to recommend rulings on
the enforceability of the Writ of Garnishment issued by the Court (Doc. No. 32) and on
the Motion for Assignment of Judgment (Doc. No. 48) filed by William J. Fulker as the
Administrator of the Estate of Rex S. Tucker, Sr. (the “Administrator-Garnishee”). For
the reasons set forth below, the undersigned Magistrate Judge RECOMMENDS that the
Court ENFORCE the Writ of Garnishment (Doc. No. 32), GRANT the Motion for
Assignment of Judgment (Doc. No. 48), and MODIFY the Amended Judgment (Doc.
No. 29) to change the payee of the order of restitution.
I. 	BACKGROUND
On June 20, 2013, Defendant-Debtor Rex S. Tucker, Jr. pled guilty to twenty-four
counts of bank fraud in violation of 18 U.S.C. § 1344. (Plea Agreement, Doc. No. 16.)
On September 25, 2013, District Judge Thomas M. Rose sentenced Defendant-Debtor to
a term of incarceration of thirty-seven months, five years of supervised release with
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special conditions, and $101,477.20 in restitution to be paid to Abbey Credit Union.
(Judgment, Doc. No. 22.) District Judge Rose later amended the judgment to order
Defendant-Debtor to instead pay restitution to his father, Rex S. Tucker, Sr. (“Tucker
Sr.”), who was the victim of the fraud. (Amended Judgment, Doc. No. 29 at PageID 85;
see Plea Agreement, Doc. No. 16 at PageID 39; Stipulation, Doc. No. 28 at PageID 79.)
Tucker Sr. passed away on February 25, 2023. (See Certificate of Death, Doc.
No. 39-1 at PageID 128). He died intestate with five children — including Defendant-
Debtor — who each share twenty percent of the estate under Ohio Revised Code Section
2105.06. (See Doc. No. 39-2 at PageID 129; Doc. No. 39-3 at PageID 131.)
On October 27, 2023, Plaintiff filed an Application for a Writ of Continuing
Garnishment directed to the Administrator-Garnishee. (Application, Doc. No. 30.)
Plaintiff asserted that it last demanded payment on the judgment on June 7, 2018, and
Defendant-Debtor had failed to pay the amount due. (Id. at PageID 88.) District Judge
Rose granted the Application (Order for Writ, Doc. No. 31), and the Clerk of Court
issued the Writ and Notice of Garnishment on October 31, 2023. (Writ, Doc. No. 32.)
The Writ shows that the outstanding balance owed is $100,448.56. (Id. at PageID 91.)
The Administrator-Garnishee filed an answer on November 27, 2023. (Doc. No.
34.) In it, the Administrator-Garnishee conceded that the Defendant-Debtor expects to
inherit a one-fifth interest in the estate of Rex. S. Tucker, Sr., and therefore maintains an
interest in real property, tangible personal property, and an unknown amount of money
from an “[e]xpectancy of inheritance pursuant to Ohio Revised Code Section 2105.06.”
(Id. at PageID 108-09.) However, on a Claim for Exemption Form attached to the
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Answer, the Administrator-Garnishee checked boxes to claim all of the potential
exemptions to garnishment under 18 U.S.C. § 3613. (Id. at PageID 109-11.) The
Administrator-Garnishee also argued that “[t]he judgment entered herein has been
assigned to Eddie A. Tucker, Sr. Therefore, the Plaintiff herein is not the real party in
interest and the Garnishee disputes the Plaintiff’s right to a continuing order of
garnishment.” (Id. at PageID 109.) Finally, the Administrator-Garnishee asserted that he
is not liable as a garnishee in this action because he does not possess or control “any
property currently belonging to” the Defendant-Debtor, who merely has an “expectancy
to inherent a [one-fifth] interest in the property [that he controls] as Administrator.” (Id.)
The Administrator-Garnishee did not request a hearing on the Writ of
Garnishment. (Answer, Doc. 34.) Neither Plaintiff nor the Defendant-Debtor objected to
the Answer or requested a hearing. The Court ordered the filing of supplemental briefs
to address the Administrator-Garnishee’s objections and claimed exemptions. (Order for
Supplemental Briefing, Doc. No. 40.)
Plaintiff responded to the Administrator-Garnishee’s arguments and requested a
hearing. (Doc. No. 41 at PageID 138-40; Doc. No. 41-2 at PageID 142.) Separately,
Plaintiff moved to substitute Tucker, Sr.’s four non-Defendant children—Eddie A.
Tucker, Sr., Tammy L. England, Debra S. Tucker, and Tiffany E. Cremeens (“Other
Tucker Children”)—as victims/payees in this case pursuant to 18 U.S.C. § 3663A(a)(2).
(Motion to Substitute, Doc. No. 35 at PageID 115-16.) In the alternative, Plaintiff asked
the Court to assign the Defendant-Debtor’s interest in Tucker, Sr.’s estate to the Crime
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Victim’s Fund under 18 U.S.C. § 3664(g)(2). (Id.) Neither the Defendant-Debtor nor the
Administrator-Garnishee responded to the Motion to Substitute.
On August 5, 2024, the undersigned held an evidentiary hearing on the Writ of
Garnishment and heard arguments on the Motion to Substitute. The hearing was
attended by Plaintiff’s counsel, the Administrator-Garnishee, the Defendant-Debtor, and
the Other Tucker Children. During the hearing, the Administrator-Garnishee withdrew
his written objections to the Writ of Garnishment and his claimed exemptions. Plaintiff
and the Administrator-Garnishee stated that neither the judgment nor Tucker, Sr.’s
interest had been assigned to Eddie A. Tucker, Sr.1 They further stated that the Other
Tucker Children should be substituted for Tucker, Sr. as the payee. However, Eddie A.
Tucker, Sr. asked the Court to assign Tucker, Sr.’s interest solely to him, and the
Defendant-Debtor argued that his inheritance should not be subject to garnishment.
Two weeks after the evidentiary hearing, on August 20, 2024, the United States
Court of Appeals for the Sixth Circuit issued a published opinion in which it held that
“18 U.S.C. § 3663A(a)(2) does not authorize a district court to alter a restitution order,
post judgment, to change the payee.” U.S. v. O’Hara, 114 F.4th 557, 563 (6th Cir.
2024). The undersigned again ordered supplemental briefing and asked the parties to
address whether, and how, the O’Hara opinion affected the Motion to Substitute.
(Second Order for Supplemental Briefing, Doc No. 45.)
1 The undersigned agrees that Tucker, Sr.’s interest was not previously assigned to Eddie A. Tucker, Sr.
This assertion appears to be based on a note from the Clerk of Courts that Eddie A. Tucker, Sr. was the
“payee” of the judgment. (See Doc. No. 41-1 at PageID 141.) This appears to have been a clerical error
by the Clerk of Courts. (See Doc. No. 41-3 at PageID 143.) Neither the judgment nor Tucker, Sr.’s
interest as a payee of the order of restitution was assigned to anyone else by order of this Court.
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In response, Plaintiff asked the Court to enter an Agreed Order to withdraw the
Motion to Substitute and grant the parties leave to take further action regarding the
assignment of Tucker, Sr.’s interest and for final garnishment. (Motion for Agreed
Order, Doc. No. 46.) The Court granted that Motion and entered the Agreed Order on
December 19, 2024. (Agreed Order, Doc. No. 47.)
The Administrator-Garnishee then filed the Motion for Assignment, in which it
asked the Court to assign the judgment to the Other Tucker Children. (Doc. No. 48 at
PageID 158-60.) In response, Plaintiff first explained that the judgment belongs to the
United States and cannot be assigned. (Limited Objection, Doc. No. 49 at PageID 163-
64.) However, Plaintiff argued that the Court should assign Tucker, Sr.’s interest in the
judgment to the Other Tucker Children. (Id.) Plaintiff submitted a proposed Agreed
Judgment Order that was signed by Plaintiff’s counsel and the Administrator-Garnishee.
(Doc. No. 49-1.) Neither the Defendant-Debtor nor any of the Other Tucker Children
responded to the Motion for Assignment or the proposed Agreed Judgment Order.
II. 	WRIT OF GARNISHMENT
A. 	Applicable Law
The Mandatory Victims Restitution Act (MVRA) governs the award of restitution
in certain criminal cases. 18 U.S.C. § 3663A. Section 3663A(a)(1) provides that when
the Court sentences a defendant who has been convicted of an offense described in
subsection (c), it “shall order . . . that the defendant make restitution to the victim of the
offense or, if the victim is deceased, to the victim's estate.” An order for restitution under
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Section 3663A becomes a lien “on all property and rights to property” of the defendant
that arises on the entry of judgment. See 18 U.S.C. § 3613(c).
The United States may enforce an order for restitution “by all … available and
reasonable means,” 18 U.S.C. § 664(m)(1)(A), which includes procedures for collecting
on a civil judgment. 18 U.S.C. § 3613(a) (“The United States may enforce a judgment
imposing a fine in accordance with the practices and procedures for the enforcement of a
civil judgment under Federal law or State law.”); 18 U.S.C. § 3613(f) (“[A]ll provisions
of this section are available to the United States for the enforcement of an order of
restitution.”). In this case, the collection procedure used is a writ of garnishment:
A court may issue a writ of garnishment against property (including
nonexempt disposable earnings) in which the debtor has a substantial
nonexempt interest and which is in the possession, custody, or control of a
person other than the debtor, in order to satisfy the judgment against the
debtor. Co-owned property shall be subject to garnishment to the same
extent as co-owned property is subject to garnishment under the law of the
State in which such property is located. A court may issue simultaneous
separate writs of garnishment to several garnishees. A writ of garnishment
issued under this subsection shall be continuing and shall terminate only as
provided in subsection (c)(10).
28 U.S.C. § 3205(a).
After it obtains a writ of garnishment, the United States must serve the writ to the
judgment debtor and the garnishee. 18 U.S.C. § 3205(c)(3). The garnishee must file an
answer that identifies, in part, any property in his or her custody, control or possession
that is subject to the writ. 18 U.S.C. § 3205(c)(4). Within twenty days of the garnishee’s
answer, the judgment debtor or the United States may file written objections to the
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garnishee's answer and request a hearing. 18 U.S.C. § 3205(c)(5). The party objecting to
the garnishment bears the burden of proving the grounds for its objections. Id.
B. 	Analysis
1. 	The United States is the proper party to enforce this Court’s
order of restitution.
When Judge Rose issued the Judgment and Amended Judgment pursuant to 18
U.S.C. § 3663A, the restitution orders contained therein became a lien on Defendant-
Debtor’s “property and rights to property.” 18 U.S.C. § 3613(c). The United States
plainly may enforce an order of restitution by issuing a writ of garnishment. 18 U.S.C.
§§ 3205, 3613(a), (f); 3664(m)(1)(A). As discussed above, although the Administrator-
Garnishee initially disputed Plaintiff’s right to a continuing order of garnishment
(Answer, Doc. No. 34 at PageID 109), he withdrew this objection during the hearing
held on August 5, 2024. The undersigned finds that Plaintiff is the proper party to
enforce the order of restitution, including by means of this Court’s Order that granted
Plaintiff’s application for a writ of garnishment (Doc. No. 31).
2. 	The Defendant-Debtor’s expected inheritance interest is subject
to the writ of garnishment.
The Administrator-Garnishee initially objected that he is not liable as a garnishee
because he does not possess or control “any property currently belonging to the
Defendant,” as the Defendant-Debtor merely has an “expectancy to inherit a [one-fifth]
interest in the property [that he controls] as Administrator.” (Answer, Doc. No. 34 at
PageID 109.)
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The Administrator-Garnishee appropriately withdrew this objection during the
hearing. In a writ of garnishment, the term “property” includes “any present or future
interest, whether legal or equitable, in real, personal (including choses in action), or
mixed property, tangible or intangible, vested or contingent, wherever located and
however held (including community property and property held in trust (including
spendthrift and pension trusts)).” 28 U.S.C. § 3002(12) (emphasis added). Accordingly,
the Defendant-Debtor’s expected inheritance interest is “property” that is subject to the
writ of garnishment.
3. 	None of the exemptions in 18 U.S.C. § 3613(a) and 26 U.S.C.
§ 6334(a) apply.
On the Claim for Exemption Form attached to the Answer, the Administrator-
Garnishee checked boxes to claim all of the possible exemptions under 18 U.S.C. § 3613
that are listed in 26 U.S.C. § 6334(a). (Answer, Doc. No. 34 at PageID 110.) However,
the Administrator-Garnishee acknowledged during the hearing that he is not holding any
of the categories of property for which he claimed exemptions. The undersigned finds
that the claimed exemptions to garnishment are inapplicable.
4. 	The undersigned recommends that Plaintiff be permitted to
collect a lump sum toward the outstanding balance of the
Defendant-Debtor’s restitution obligation by garnishing his
inheritance.
The Defendant-Debtor argued during the hearing that Plaintiff should not be
permitted to garnish his expected inheritance and collect a lump sum to apply towards
the balance of his restitution obligation. Because this objection is both untimely and
without merit, the undersigned recommends that it be overruled.
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As discussed above, 28 U.S.C. § 3205 sets forth the requirements and procedures
for garnishing property to satisfy an order of restitution. Here, Plaintiff properly served
the Writ of Garnishment to the Defendant-Debtor and the Administrator-Garnishee
pursuant to 18 U.S.C. § 3205(c)(3). (Certificate of Service on Judgment Debtor and on
Garnishee, Doc. No. 36.) The Administrator-Garnishee timely filed his Answer (Doc.
No. 34). The Defendant-Debtor was notified of his right to file written objections and
request a hearing within twenty days after receiving the Answer, but did not do so. See
18 U.S.C. § 3205(c)(5). Thus, the objection that he asserted for the first time during the
evidentiary hearing (which the Court held at the request of the Administrator-Garnishee,
not the Defendant-Debtor) is untimely.
Nevertheless, this Court “may at any time on its own initiative or the motion of
any interested person . . . make an order denying, limiting, conditioning, regulating,
extending, or modifying the use of any enforcement procedure” related to garnishment
for purposes of restitution. 28 U.S.C. § 3013. Several courts have “interpreted this
provision as granting discretion to modify a garnishment based on the specific financial
circumstances of the defendant.” U.S. v. Holcomb, No. 08-20003-JWL, 2012 WL
5306257, at *3 (D. Kan. Oct. 26, 2012) (citing U.S. v. Ogburn, 499 F. Supp. 2d 28, 30-
32 (D.D.C. 2007) (temporarily suspending garnishment based on defendant's inability to
pay); U.S. v. Kaye, 93 F. Supp. 2d 196, 199 (D. Conn. 2000) (court has discretion to
modify garnishment); U.S. v. Crowther, 473 F. Supp. 2d 729, 731 (N.D. Tex. 2007)
(same); U.S. v. George, 144 F. Supp. 2d 161, 164-65 (E.D.N.Y. 2001) (court has
discretion to reduce the garnishment amount)).
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Accordingly, the Court will construe the Defendant-Debtor’s statements during
the hearing as a motion to limit the garnishment of his inheritance under 28 U.S.C.
§ 3013. The undersigned finds that the motion is not well-taken. Defendant-Debtor did
not submit evidence that his economic circumstances have deteriorated to the point that
his inheritance should not be garnished. He previously admitted to committing a crime
for financial gain, pled guilty, and was sentenced under the statutory framework and the
United States Sentencing Guidelines. Defendant-Debtor should not be excused from his
obligation to pay restitution simply because he prefers to keep his expected inheritance.
For all of these reasons, the undersigned RECOMMENDS that District Judge
Rose issue an Order that overrules all objections to the Writ of Garnishment and orders
it to be enforced.
III. 	MOTION FOR ASSIGNMENT OF JUDGMENT
The undersigned must also consider whether, in light of the Sixth Circuit’s
decision in O’Hara, this Court has the authority to modify its Amended Judgment (Doc.
No. 29) and assign Tucker, Sr.’s interest in that judgment to the Other Tucker Children.
Because the facts in this case are materially distinguishable from the facts in O’Hara
and principles of equity strongly support a different result, the undersigned recommends
that the Court grant the Motion for Assignment of Judgment (Doc. No. 48).
As discussed above, the MVRA provides that in certain types of criminal cases,
“when sentencing a defendant convicted of an offense described in subsection (c), the
court shall order . . . that the defendant make restitution to the victim of the offense or, if
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the victim is deceased, to the victim's estate.” 18 U.S.C. § 3663A(a)(1) (emphasis
added). The MVRA further states, in relevant part:
In the case of a victim who is . . . deceased, the legal guardian of the
victim or representative of the victim's estate, another family member, or
any other person appointed as suitable by the court, may assume the
victim's rights under this section, but in no event shall the defendant be
named as such representative or guardian.
18 U.S.C.A. § 3663A(a)(2) (emphasis added).
Despite the plain language of this MVRA provision, the general rule is that “once
a court has imposed a sentence, it does not have the authority to change or modify that
sentence unless such authority is expressly granted by statute.” U.S. v. Hammond, 712
F.3d 333, 335 (6th Cir. 2013) (citations omitted). Thus, in O’Hara, the Sixth Circuit
held that because the MVRA applies by its terms only “when sentencing,” the above-
quoted language in Section 3663A “does not authorize a court to modify a judgment.”
114 F.4th at 561. The O’Hara court further held that 18 U.S.C. § 3663A(a)(2) “does not
authorize a district court to alter a restitution order, post judgment, to change the
payee—at least in the circumstances of this case.” 114 F.4th at 563 (emphasis added).
The undersigned concludes that the circumstances in O’Hara and in this case are
materially different. In O’Hara, as in this case, the defendant pled guilty to defrauding
his parent and was ordered to pay restitution to his parent’s estate. Id. at 558. But in
O’Hara, unlike in this case, the defendant’s mother passed away and left the defendant
as the sole beneficiary of her estate before the court imposed its sentence. Id. The Sixth
Circuit emphasized that the court and government “knew that [defendant] was likely the
solely beneficiary of his mother’s estate” when defendant was sentenced and ordered to
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pay restitution to the estate. Id. at 562-63. The Sixth Circuit reasoned that the court
could not later rely on the MVRA to remedy its error at the time of sentencing:
[T]he district court had a statutorily authorized way to avoid this situation
when it first sentenced O’Hara in 2019 when it had all the facts before it to
avoid this predicament. . . . But now that the opportunity has passed,
changing the statute by judicial fiat is not justified.
Id.
The key difference between this case, and O’Hara, is that the victim in this case
(Tucker Sr.) was alive when the Court sentenced the Defendant-Debtor and required him
to pay restitution to his father. Because this Court did not have “all the facts before it to
avoid this predicament” at the time of sentencing, 114 F.4th at 562-63, O’Hara is
distinguishable and does not govern the outcome of the Motion for Assignment.
Indeed, the O’Hara court itself suggested that this very distinction could lead to a
different result. See 114 F.4th at 562 n.5 (citing U.S. v. Drews, 598 F. Supp. 3d 611, 612
(E.D. Mich. 2021)). The Drews court had sentenced defendant to probation and ordered
him to pay restitution to his mother. Id. at 612. After defendant’s mother passed away
years later, the United States asked the court to order that restitution be paid to the Crime
Victims Fund because defendant “was paying himself as the sole heir of his victim’s
estate.” Id. at 612-13. The Drews court granted the request, relying on the MVRA’s text
(“in no event shall the defendant be named as such representative or guardian” of the
deceased victim’s estate) as well as upon principles of equity and public policy (“no one
should benefit from his own wrongdoing”). Id. at 613-14.
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Discussing Drews, the Sixth Circuit stated that “it’s not clear that … [the MVRA]
permits modifying a sentence even if the victim was alive at the time of sentencing but
later passes away.” O’Hara, 114 F.4th at 562 n.5. However, the court also commented:
But at least that case presents a better argument for changed
circumstances requiring a modification, perhaps under equitable
principles. But we need not opine on that scenario now because that’s not
our case. Here, the court and parties knew Thrush was deceased at the time
of sentencing but nevertheless failed to name a different payee in the
restitution order.
Id. (emphasis added, citing Drews, 598 F. Supp. 3d at 612-13).
The undersigned recommends that this Court find that O’Hara is distinguishable,
adopt the reasoning in Drews, and conclude that principles of equity permit this Court to
modify its judgment in the circumstances of this case. As the Drews court explained, the
MVRA provision in Section 3663A(a)(2) “indicates that wrongdoers should not benefit
from their own wrongdoing as a matter of public policy.” 598 F. Supp. at 613. Indeed,
“the purpose of the MVRA is not only to ‘ensure . . . crime victims . . . receive the
restitution that they are due,’ but also to ‘ensure that the offender realizes the damage
caused by the offense and pays the debt owed to the victim as well as to society.’” Id.
(citing S. R EP . N O . 104-179 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 925, 1995 WL
731704, at *12 (emphasis added)). And plainly “it would violate public policy to allow
Defendant to be the beneficiary to the restitution of his own crime.” Id. (citations
omitted). Additionally, “it is ‘an ancient equity maxim that no one should benefit from
his own wrongdoing.”” Id. (citing Hanover Am. Ins. Co. v. Tattooed Millionaire Ent.,
LLC, 974 F.3d 767, 790 (6th Cir. 2020) (internal quotation omitted)).
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Moreover, if the MVRA does not permit courts to modify their judgments in the
circumstances of this case, then it is unclear how sentencing courts can avoid unjustly
enriching wrongdoers who later become statutory beneficiaries of their victims’ estates.
Here, for example, the Defendant-Debtor dragged his feet and failed to make timely
restitution payments to his father during his lifetime. If this Court cannot now modify
the payee—which is the victim’s estate—then the Defendant-Debtor will have found an
effective way to limit the amount of restitution he is obligated to pay (since one-fifth of
the remaining restitution award will be paid to himself). Federal courts should not be
required to predict, at the time of sentencing, what circumstances might unfold in the
future and then tailor their judgments to account for all possible eventualities.
In sum, failing to modify the judgment would allow Defendant-Debtor to benefit
from the restitution he was ordered to pay—and therefore allow him to benefit from his
own crime. Changed circumstances and equitable principles not only permit, but indeed
require, modification of the payee in the Amended Judgment. The undersigned therefore
RECOMMENDS that the Court GRANT the Motion for Assignment of Judgment.
IV. 	CONCLUSION
For the reasons stated, the undersigned Magistrate Judge RECOMMENDS that
this Court:
1. 	OVERRULE objections to the Writ of Garnishment (Doc. No. 32) and
ORDER that it be ENFORCED;
2. 	GRANT the Motion for Assignment of Judgment (Doc. No. 48); and
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3. 	MODIFY this Court’s Amended Judgment (Doc. No. 29) to provide as
follows:
a. 	The Victim’s interest in the Amended Judgment herein entered
against the Defendant and in favor of the Plaintiff is hereby assigned, equally, to Eddie
A. Tucker, Sr., Tammy L. England, Debra S. Tucker, and to Tiffany E. Cremeens.
b. 	All payments of restitution hereinafter received by the Plaintiff
shall be disbursed, equally, to Eddie A. Tucker, Sr., Tammy L. England, Debra S.
Tucker and Tiffany E. Cremeens.
IT IS SO RECOMMENDED.
s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
Notice of Procedure on Objections
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days
after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P.
6(d), this period is extended to SEVENTEEN days if this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring of record at an oral
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hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party’s objections within FOURTEEN days after being served with a copy
thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).
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