United States of America v. Barber et al

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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
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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.
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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.
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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.
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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
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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)”
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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
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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).
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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.
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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).
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