United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
This matter came before the court on January 20, 2015, the court addressing multiple motions filed on behalf of defendant Philip Grigsby, who was convicted of various child pornography counts, and sentenced to 260 years' imprisonment.
For the reasons stated at the hearing, the court suspends ruling on the defendant's request to modify the restitution awarded for 30 days. The court otherwise denies the relief sought by defendant.
The court ordered Grigsby to pay a $1, 000.00 assessment, and $140, 000.00 in restitution. To date, Grigsby has paid only $100 of the assessment (in four $25 installments), and nothing by way of restitution. Subsequently, on November 6, 2014, the government filed an Amended Writ of Continuing Garnishment against IBEW Local No. 661 Retirement Plan pursuant to the Federal Debt Collection Procedures Act, 28 U.S.C. § 3205. The union's answer indicates that it holds a fully vested, qualified plan, money purchase retirement account worth $53, 604.00.
Although the court originally entered a Schedule of Payment for the restitution as a part of the Amended Judgment (Dkt. 98), the government was not limited to such periodic payments. An action of garnishment under § 3205 is a permissible means of collecting restitution owed by a defendant, even when a court-authorized payment plan otherwise exists. See United States v. James, 312 F.Supp.2d 802, 807 (E.D. Va. 2004) (permitting garnishment action and observing that "Court-imposed payment schedules are merely one means available to enforce a restitution judgment").
Grigsby has advanced four objections to the garnishment. First, he asserts that "the validity of the order is in question, " citing the civil action he commenced against Jesse Lemuz, one of the witnesses in the criminal action against him. Second, he argues the pension account is partly owned by his wife, and thus is the subject of the ongoing state proceeding. Third, he argues that the "amount [cited in the Writ] is also open to question." Fourth, he argues that he is exempt from garnishment under various statutes (41 U.S.C. § 1671(2), 18 U.S.C. § 3613, and 15 U.S.C. § 1673(c)).
The court overrules the defendant's objections. His independent civil action against Lemuz is not a valid basis for objecting to the garnishment. First, the Tenth Circuit independently determined that the Lemuz action cannot be asserted now as a basis for challenging the original restitution order. United States v. Grigsby, 579 Fed.Appx. at 686. Second, as noted earlier, the court finds that the Lemuz action supplies no reason for modifying the restitution amount. Accordingly, the first objection is overruled.
The court also finds that the IBEW account is owned by Grigsby, and the government's lien properly attached at the time of the original criminal judgment., May 21, 2013. The divorce action was filed July 9, 2013, and any interest Grigsby's now-former wife would have in the account is subject to the lien of the United States. In any event, such secondary interest would belong to the former wife. Grigsby lacks any standing to assert it.
The amount set forth in the Writ ($140, 900) is correct, reflecting the original Order of Restitution, and allowing for Grigsby's four $25 payments. The amount of restitution ordered is part of a final and nonappealable judgment. Any subsequent decision by another court, in another action, cannot affect the amount of restitution ordered by this court.
The defendant's objection asserting various statutory exemptions is overruled. First, with resepct to the Consumer Credit Protection Act, Grigsby has been severed from his employment for more than 12 months, and is entitled to a lump sum distribution of the pension account. Accordingly, the distribution is not "wages, salary, commission, bonus, or otherwise, " and is not "periodic payments pursuant to a pension or retirement program." 15 U.S.C. § 1672(a)). See United States v. Rice, 196 Fsupp.2d 1196, 1199 (N.D. Okla. 2002).
Grigsby claims the account is not subject to garnishment under 26 U.S.C. § 6334(a) as a pension payment, but this exemption is explicitly reserved for military and railroad pensions. The IBEW pension is a private union benefit, and does not fall within the statutory exemption.
Nor is the pension exempt under § 6334(a)(8), which protects "[j]udgments for support of minor children" from execution. The statute is inapplicable because no court rendered any child support judgment prior to the government's Writ. Of course, Grigsby argues that a hypothetical child support judgment might subject him to payment of 25% of his income, thereby making him exempt. But no such judgment exists, and in any event, as noted earlier, the IBEW account may be distributed as a lump sum payment. It is not a periodic payment which would support an exemption.
The remaining exemption cited by Grigsby, the minimum exemption for wages, salary or other income, 18 U.S.C. § 3613(a)(9), does not apply to actions in support of criminal judgments. See 18 U.S.C. § ...