United States of America v. Henry R. Tarbox, Jr.

United States Court of Appeals
For the First Circuit
No. 03-1339
UNITED STATES OF AMERICA,
Appellee,
v.
HENRY R. TARBOX, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
(Hon. Ronald R. Lagueux, Senior U.S. District Judge)
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Edward J. Romano was on brief for appellant.
Michael P. Iannotti, Assistant United States Attorney, with
whom Craig N. Moore, Acting United States Attorney, was on brief
for appellee.
March 22, 2004

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1The district court has final authority to determine a
restitution payment schedule, see United States v. Merric, 166 F.3d
406, 409 (1st Cir. 1999) (remanding to the district court with
instruction to insert into the judgment "a phrase or sentence
making this reservation of authority explicit"), and cannot
delegate such authority to the probation officer. See also 18
U.S.C. § 3572(d)(2). Here, at the time of sentencing, the district
court concluded that "it wasn't determinable how much [Tarbox]
could make by way of restitution during his period of supervised
release" until he finished his prison term. Accordingly, the court
directed the Probation Office to fashion a payment schedule upon
Tarbox's release from prison. Ultimately, the court made the
Probation Office's payment schedule "official" by its February 18,
2003 order. We have admonished that the district court may not
authorize a probation officer to make post-sentencing decisions as
to either the amount of restitution or the schedule of installment
payments because the court cannot delegate to others its "inherent
responsibility" over matters of punishment, which includes "final
authority over all payment matters." Merric, 166 F.3d at 409. See
also United States v. Miller, 77 F.3d 71, 77-78 (4th Cir. 1996);
United States v. Kassar, 47 F.3d 562, 568 (2d Cir. 1995). Thus,
there remains the issue of whether the district court still may
have impermissibly delegated to the Probation Office its final
authority over restitution payment scheduling, despite its eventual
"official" adoption of the Probation Office's schedule. Tarbox,
however, raised this issue neither before the district court nor
here on appeal; hence, we deem it waived. See United States v.
Rosario-Peralta, 199 F.3d 552, 563 n.4 (1st Cir. 1999).
-2-
Per Curiam. On February 7, 2000, Tarbox pled guilty to
four counts of making false and fraudulent statements to obtain
federal employees' compensation benefits, in violation of 18 U.S.C.
§ 1920. On April 25, 2000, he was sentenced to twelve months and
one day in prison, followed by three years of supervised release,
and was ordered to pay $97,764 in restitution to the United States
Department of Labor, according to a payment schedule to be
determined by the United States Probation Office.1 Interest on the
amount was waived. He did not appeal the sentence.

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-3-
On April 4, 2001, Tarbox was released from prison. Over
the next nine months, he paid $350 toward his restitution. The
government requested a full review of his financial status. At a
January 16, 2002 meeting, Tarbox refused to provide his wife's
income and other household income to his probation officer and the
Assistant United States Attorney. On February 7, 2002, the
Probation Office set a schedule for payment, eventually determining
that the restitution was to be paid at a rate of $1,700 per month.
Upon his refusal to pay according to this schedule, the government
requested the Office of Personnel Management to offset Tarbox's net
monthly pension (due to him from the Civil Service Retirement and
Disability Fund), set at $1,628.50, to recover the amount of
monthly restitution. On August 26, 2002, Tarbox filed a Motion to
Dispute Restitution Payments. He also wrote two checks in the
amount of one cent to the Clerk of the Court for the district
court, one dated August 25, 2002 and the other dated September 30,
2002. On February 18, 2003, after a hearing, the district court
entered an order denying his motion and ordering that Tarbox's
pension payments be "used in whatever the amount is at any
particular time to fulfill his restitution requirement until full
restitution is made." Tarbox appeals from this order, contending
that the district court abused its discretion by not adjusting
downward his monthly restitution payment schedule.

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-4-
We review a district court's restitution order for abuse
of discretion. See United States v. Cutter, 313 F.3d 1, 6 (1st
Cir. 2002).
At issue is not the full amount of restitution to be paid
by Tarbox, but in how that full amount is to be paid. The district
court has "substantial discretion" over this determination. See
United States v. McGlothlin, 249 F.3d 783, 784 (8th Cir. 2001).
The court shall consider:
(A) the financial resources and other assets
of the defendant, including whether any of
these assets are jointly controlled;
(B) projected earnings and other income of the
defendant; and
(C) any financial obligations of the
defendant, including obligations to
dependents.
18 U.S.C. § 3664(f)(2). A defendant has the burden of proving by
a preponderance of the evidence that he is unable to make the
ordered restitution payments. See 18 U.S.C. § 3664(e). At the
February 14, 2003 hearing, the government provided financial
information which indicated that Tarbox's household income exceeded
$100,000 and was composed of (1) $62,599 annual gross salary
($2,400 biweekly); (2) his wife's estimated annual salary of
$15,000; (3) $3,400 in unemployment benefits for his wife during
the summer (she works as a school bus driver); and (4) a civil
service retirement pension of $25,000 gross. At the hearing,
Tarbox himself offered no documentation or other evidence of his
financial status. In addition, he offered little to support his

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-5-
claim that certain health problems affected his ability to work.
Moreover, he presented no evidence of his claim that his health
costs constitute an extra $200 per month "out of pocket."
Finally, at the hearing, Tarbox never mentioned his
children, while at a previous meeting with the government, he
claimed the burden of child support obligations for three children
he had with a woman other than his wife. In any event, no evidence
was produced to substantiate this claim.
Based on the evidence presented at the February 2003
hearing and upon evaluation of Tarbox's financial resources and
obligations, the district court did not abuse its discretion in
denying Tarbox's Motion to Dispute Restitution Payments and in
ordering that his federal civil service pension payments be offset
to satisfy the monthly payment schedule. An offset of the pension
still leaves Tarbox ample funds on which to live.
Accordingly, we affirm.

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