United States v. 2005-10-18 | 04-50378 | USA VMAYS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-50378
Plaintiff-Appellee, D.C. No.
v.  CR-98-03213-JM
MICHAEL MAYS, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
June 8, 2005—Pasadena, California
Filed October 19, 2005
Before: Donald P. Lay,* Alex Kozinski and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Kozinski
*The Honorable Donald P. Lay, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
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COUNSEL
Kurt D. Hermansen and Robert H. Rexrode, III, Federal
Defenders of San Diego, Inc., San Diego, California, for the
defendant-appellant.
Carol C. Lam, United States Attorney, Roger W. Haines, Jr.,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, and Leah R. Bussell, Assistant United
States Attorney, San Diego, California, for the plaintiff-
appellee.
OPINION
KOZINSKI, Circuit Judge:
We consider whether a federal district court may garnish
the wages of a criminal defendant who fails to pay a judgment
of restitution imposed by that court.
Facts
Michael Mays pled guilty to conspiracy to commit mail
fraud. The court imposed a custodial sentence and supervised
release. Pursuant to the Mandatory Victims Restitution Act of
1996 (MVRA), Pub. L. No. 104-132, 110 Stat. 1227 (1996)
(codified in relevant part at 18 U.S.C. §§ 3663A-3664), the
court ordered Mays to pay restitution. See id. § 3556.
Mays made only nominal payments on his judgment and,
so, shortly before termination of his supervised release, the
United States applied to the district court for a writ of contin-
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uing garnishment against Mays and his employer. The gov-
ernment did not initiate a separate civil action to enforce the
judgment, but instead filed the garnishment application under
the docket number for Mays’s criminal case.
The district court notified Mays and his employer that
Mays’s wages were being garnished and provided instructions
on how to challenge the garnishment order. See 28 U.S.C.
§§ 3202(b), 3202(d), 3205(c)(5). A hearing was held prior to
the termination of Mays’s supervised release to review the
garnishment order. At the hearing, Mays indicated that he had
a jurisdictional objection to the garnishment order. The hear-
ing was continued to permit additional briefing on Mays’s
objection.
A second hearing was held on the matter following termi-
nation of Mays’s supervised release. At this hearing, Mays
raised the following objections to the writ of garnishment:
First, Mays argued that the district court lacked jurisdiction to
issue a writ of garnishment under a criminal docket number.
Second, Mays argued that even if the writ could issue in a
criminal case, it could not issue here because it had not been
finalized prior to the termination of his supervised release.
And third, Mays argued that even if the garnishment order
had been finalized prior to the termination of his supervised
release, the order nevertheless terminated upon completion of
his supervision. Mays did not contest the government’s right
to seek a writ of garnishment against him, but argued that the
judgment must be enforced in a separate civil action. Mays’s
motion to dismiss the writ of garnishment was denied, and
this appeal followed.
Appellate Jurisdiction
We review the existence of subject matter jurisdiction de
novo. See Chang v. United States, 327 F.3d 911, 922 (9th Cir.
2003). The government argues that United States v. Moore,
878 F.2d 331 (9th Cir. 1989) (per curiam), deprives us of
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jurisdiction to hear this appeal. In Moore, we held that we
lacked jurisdiction to review a district court’s denial of a
motion to quash a writ of execution relating to a garnishment
order. Id. at 331.
[1] The appeal in Moore of the denial of the motion to
quash was interlocutory,1 and this was pivotal to the Moore
court’s conclusion that it lacked appellate jurisdiction. See
Moore, 878 F.2d at 331 (citing Loeber v. Schroeder, 149 U.S.
580, 585 (1893) (“Refusal to quash a writ is not a final judg-
ment.”); Steccone v. Morse-Starrett Products Co., 191 F.2d
197, 199 (9th Cir. 1951) (“[T]his court lacks jurisdiction inas-
much as the order appealed from is not one which finally dis-
poses of an entire controversy between the parties and is,
therefore, not an appealable order.”)). By contrast, when the
district court denied Mays’s motion to dismiss the writ of gar-
nishment, there were no other matters before the district court
relating to Mays’s criminal case. The district court’s denial of
Mays’s motion to dismiss the writ of garnishment was there-
fore a final judgment, and accordingly, we have jurisdiction
to hear the appeal. See Catlin v. United States, 324 U.S. 229,
233 (1945) (“A ‘final decision’ generally is one which ends
the litigation on the merits and leaves nothing for the court to
do but execute the judgment.”).
District Court’s Jurisdiction To Order Garnishment
[2] 1. The Federal Debt Collection Procedures Act of
1990 (FDCPA), 28 U.S.C. §§ 3001-3308, sets forth the “ex-
clusive civil procedures for the United States . . . to recover
a judgment on . . . an amount that is owing to the United
States on account of . . . restitution.” Id. §§ 3001(a)(1),
3002(3)(B). The FDCPA was enacted “to give the Justice
Department uniform Federal procedures—prejudgment reme-
1An “interlocutory appeal” is “[a]n appeal that occurs before the trial
court’s final ruling on the entire case.” Black’s Law Dictionary 106 (8th
ed. 2004).
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dies and postjudgment remedies—to collect debts owed the
United States nationwide.” H.R. Rep. No. 103-883, at 81
(1995). Six years after passing the FDCPA, Congress enacted
the Mandatory Victims Restitution Act, which made restitu-
tion mandatory for certain crimes, including conspiracy to
commit mail fraud, the crime of which Mays was convicted.
See 18 U.S.C. §§ 371, 1341, 3663A(a)(1), 3663A(c)(1)(A)(ii).
Although the MVRA is a criminal statute, it expressly, albeit
tortuously, provides that the FDCPA’s civil enforcement rem-
edies may be used to enforce orders of restitution entered
under the MVRA.
Section 202 of the MVRA provides that “[t]he procedures
under section 3664 shall apply to all orders of restitution
under this section.” § 202, 110 Stat. at 1227 (codified at 18
U.S.C. § 3556). Section 3664 in turn provides that “[a]n order
of restitution may be enforced by the United States in the
manner provided for in subchapter C of chapter 227 and sub-
chapter B of chapter 229 of this title.” 18 U.S.C.
§ 3664(m)(1)(A)(i). Section 3613, which is part of subchapter
B of chapter 229, provides that “[t]he United States may
enforce a judgment imposing a fine[2] in accordance with the
practices and procedures for the enforcement of a civil judg-
ment under Federal law or State law [i.e., the FDCPA].” Id.
§ 3613(a). Section 3205 of the FDCPA in turn provides that
“[a] court may issue a writ of garnishment . . . in order to sat-
isfy the judgment against the debtor.” 28 U.S.C. § 3205(a).
[3] Mays, however, claims that even though the MVRA
authorizes use of the FDCPA to enforce criminal judgments,
the government must file a garnishment order under a civil
docket number, rather than under the existing docket number
for the defendant’s criminal case. However, nothing in the
statute or in its history supports such a contention. To the con-
trary, had it been satisfied with letting the United States col-
2Section 3613 provides that “fines” include orders of restitution. See id.
§ 3613(f).
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lect fines and restitution by means of a separate civil action,
Congress need not have said anything at all in the MVRA
about debt collection; the government was already authorized
to collect debts owed to it by means of a civil action. By spe-
cifically importing the FDCPA’s procedures into the MVRA,
Congress clearly meant to make those procedures available in
criminal cases.
Nor is this the first case to so interpret the MVRA. In
United States v. Scarboro, 352 F. Supp. 2d 714 (E.D. Va.
2005), the United States filed a motion under the defendant’s
criminal docket number to enforce a prior judgment of restitu-
tion under the MVRA. See id. at 716. The district court there
held that the government was not required to file a separate
civil action to enforce the judgment. Id. at 717. Rather, the
government was entitled to rely on the lien created in favor
of it by section 3613(c),3 and therefore a separate civil judg-
ment was unnecessary. The court concluded that the United
States could enforce its prior judgment in a criminal proceed-
ing. See Scarboro, 352 F. Supp. 2d at 716-17.
[4] Courts interpreting prior versions of the MVRA have
reached the same conclusion. Prior to the MVRA’s enact-
ment, former section 3663(h) had provided that “[a]n order of
restitution may be enforced by the United States . . . in the
same manner as a judgment in a civil action.” Pub. L. No. 98-
473, § 212(a)(3)(B), 98 Stat. 1837, 2010 (1984). In Lyndon-
ville Savings Bank & Trust Co. v. Lussier, the Second Circuit
interpreted former section 3663(h) by adopting the Eleventh
Circuit’s interpretation of the section’s immediate predeces-
sor, section 3579(h), which contained identical language. 211
F.3d 697, 702 (2d Cir. 2000). Lyndonville held that “Congress
3Section 3613(c) provides that “an order of restitution made pursuant to
[the MVRA] . . . is a lien in favor of the United States on all property and
rights to property of the person fined as if the liability of the person fined
were a liability for a tax assessed under the Internal Revenue Code.” 18
U.S.C. § 3613(c).
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intended to make restitution an element of the criminal sen-
tencing process and not an independent action civil in nature.”
Id. (quoting United States v. Satterfield, 743 F.2d 827, 837
(11th Cir. 1984)) (internal quotation marks omitted). Simi-
larly, in United States v. Timilty, the First Circuit held that the
“in the same manner as a judgment in a civil action” language
of former section 3663(h) did not require the United States to
obtain a civil judgment prior to enforcing a criminal restitu-
tion order. 148 F.3d 1, 3-4 (1st Cir. 1998).
Finally, in United States v. Thornton, the D.C. Circuit
interpreted former section 3565, which contained language
similar to the current version of section 3613, to have the
same meaning as the statutes in Scarboro, Lyndonville and
Timilty. See 672 F.2d 101, 103-04 (D.C. Cir. 1982).4 In
Thornton, the United States sought to enforce a criminal fine
by garnishing property of the defendant under a statute pro-
viding that the fine could be enforced “in like manner as judg-
ments in civil cases.” Id. at 103 (emphasis omitted) (quoting
former section 3565) (internal quotation marks omitted). The
Thornton court “did not suggest that it was necessary to start
4Former section 3565 was enacted in 1948 and, until amended by the
Criminal Fine Enforcement Act of 1984, see Pub. L. No. 98-596, § 2, 98
Stat. 3134, 3134 (1984), provided that “[i]n all criminal cases in which
judgment or sentence is rendered . . . the fine . . . may be enforced by exe-
cution against the property of the defendant in like manner as judgments
in civil cases.” 62 Stat. 837 (1948). Subsequent to Thornton, Congress
enacted the Victim and Witness Protection Act of 1982 (VWPA). See Pub.
L. No. 97-291, 96 Stat. 1248 (1982). The VWPA left section 3565 in
effect, but added section 3579(h), which permitted victims, in addition to
the government, to enforce orders of restitution. See § 5(a), 96 Stat. at
1255. Section 3565 was eventually repealed by the Sentencing Reform
Act of 1984. See Pub. L. No. 98-473, § 212(a)(2), 98 Stat. 1837, 1987
(1984). Section 3579(h) was redesignated as section 3663 by the Sentenc-
ing Reform Act, see § 212(a)(1), 98 Stat. at 1987, and later amended by
the Comprehensive Thrift and Bank Fraud Prosecution and Taxpayer
Recovery Act of 1990, see Pub. L. No. 101-647, § 2509, 104 Stat. 4859,
4863 (1990), and the MVRA, see § 205(a), 110 Stat. at 1229-31, to its
present form.
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a new action, civil or criminal, to engage in supplementary
process proceedings.” Timilty, 148 F.3d at 4 (citing Thornton,
672 F.2d at 102-06). We are aware of no cases reaching a
contrary conclusion.
Congress thus enacted the current version of the MVRA
against the backdrop of an unbroken line of judicial authority
interpreting materially indistinguishable statutes authorizing
the United States to enforce judgments of restitution in crimi-
nal cases without initiating separate civil actions. We presume
that Congress’s decision to enact pertinent parts of the MVRA
in a form materially unchanged from its predecessor statutes
indicated agreement, or at least acquiescence, to then-existing
interpretations of those prior statutes. Cf. Cannon v. Univ. of
Chi., 441 U.S. 677, 696-703 (1979) (history of congressional
acquiescence may be considered to determine legislative
intent).
[5] 2. Mays next argues that, even if district courts are
authorized to enter garnishment orders in criminal cases, the
district court here no longer had jurisdiction to do so because
the garnishment order did not become effective until his
supervised release had ended. But supervised release is
merely an ancillary postjudgment remedy; it is not a reopen-
ing of the criminal judgment, which presumably is final by
the time supervised release commences.
[6] The existence or non-existence of supervised release
has no bearing on the district court’s jurisdiction to enter a
postjudgment garnishment order. Garnishments are generally
postjudgment remedies and thus would normally be entered
after the case giving rise to the debt had come to an end. Even
were it true that the garnishment order did not become effec-
tive until Mays’s release had ended, which we seriously
doubt, the district court had jurisdiction to enter postjudgment
remedies, such as garnishment.
[7] 3. Mays finally argues that, even if the garnishment
order was in effect during his supervised release, it didn’t sur-
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vive his release’s termination. Again, however, supervised
release and garnishment are separate proceedings, and thus
termination of one has no effect on the court’s authority to
order the other. Moreover, the FDCPA provides that
[a] garnishment under this chapter is terminated only
by—
(A) a court order quashing the writ of gar-
nishment;
(B) exhaustion of property in the posse-
sion [sic], custody, or control of the gar-
nishee in which the debtor has a substantial
nonexempt interest (including nonexempt
disposable earnings), unless the garnishee
reinstates or reemploys the judgment debtor
within 90 days after the judgment debtor’s
dismissal or resignation; or
(C) satisfaction of the debt with respect to
which the writ is issued.
28 U.S.C. § 3205(c)(10). Upon termination of Mays’s super-
vised release, (1) no court had quashed the writ of garnish-
ment, (2) property of Mays was within the possession of the
garnishee and (3) Mays had an outstanding judgment. Termi-
nation of Mays’s supervised release did not terminate the gar-
nishment order.
AFFIRMED.
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