The opinion of the court was delivered by: Hon. William J. Martini
Defendant Thomas O'Rourke, after pleading guilty, was sentenced on one count of conspiracy to commit mail fraud and ordered to pay restitution. Afterwards, the United States applied for and was granted a writ of garnishment against Defendant's Wells Fargo Individual Retirement Account. Defendant O'Rourke now seeks relief from that order and a transfer of venue to the United States District Court for the District of Connecticut. For the reasons elaborated below, all relief sought by Defendant will be DENIED.
I. FACTUAL BACKGROUND AND THE POSITION OF THE PARTIES
On April 1, 2010, Defendant entered a guilty plea to conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349. He was sentenced on October 13, 2010 and ordered to pay $132,930 to the victim, his former employer, Stryker Orthopadics. At sentencing, the Court ordered that "restitution is due immediately." The Court also established an installment payment plan in regard to the balance owed, and ordered "payments of no less than $200.00" per month, and if the Defendant participates in a Prison Inmate Responsibility Program, then at a rate of "$25 every 3 months." The Government has garnished O'Rourke=s IRA account at Wells Fargo in the amount of $116,939.99.
Defendant understood the order at sentencing to preclude payments in excess of the installment payments described by the Court. He argues that the Government's efforts to garnish his IRA monies are a violation of due process. See, e.g.., 18 U.S.C. § 3572(d)(1) ("A person sentenced to pay a fine or other monetary penalty, including restitution, shall make such payment immediately, unless, in the interest of justice, the court provides for payment on a date certain or in installments."). He also claims that IRA funds are exempt from garnishment; and that the garnishment puts an undue burden on his wife (who is the named beneficiary on the account) and is a hardship due to their changed financial circumstances.
Finally, Defendant seeks to change the venue of these proceedings to the United States District Court for the District of Connecticut in order to convenience his wife's participating in these proceedings.
The Government opposes all relief sought by Defendant.
The Court's jurisdiction is founded on 28 U.S.C. §§ 1331; 3202(d), and in connection with the underlying criminal litigation.
A.The Government May Seek To Garnish The Individual Retirement Account Notwithstanding The Installment Plan Set At Sentencing.
In United States v. Shusterman, 331 Fed. Appx. 994 (3d Cir. June 19, 2009), the Third Circuit explained:
[Defendant] . . . argues that the District Court erred in ordering garnishment where it had set a payment schedule for restitution at sentencing. We disagree. As discussed above, the applicable statutes allow the Government to enforce restitution orders via a garnishment order. [Defendant's] criminal judgment is not to the contrary. The judgment provides that restitution is due immediately and recommends that [Defendant] participate in the Bureau of Prisons Inmate Financial Responsibility Program. The judgment further provides that, in the event the entire restitution is not paid before the commencement of supervision, [Defendant] shall pay monthly installments of not less than $250.00. The District Court did not err in allowing garnishment as an additional means to collect the restitution judgment. See ...