United States District Court, D. Kansas
MEMORANDUM AND ORDER
HONORABLE J. THOMAS MARTEN UNITED STATES DISTRICT JUDGE
case is before the court to address defendant Jason Matthew
Pennington's pro se Motion for Early Termination
of Supervised Release (Dkt. 101). Mr. Pennington contends
that he is deserving of early termination because he has
completed over fifty percent of his term of supervised
release, has complied with all requirements imposed during
his period of supervision, has paid all fines and court
costs, is no danger to the community, and has had no contact
with law enforcement during his supervision. Mr.
Pennington's United States Probation Officer, Robyn
Swanson, confirmed that Mr. Pennington began supervision on
April 5, 2018 and that he has been compliant with his terms
of supervision since that date. Based upon Mr.
Pennington's compliance, stable employment, and stable
living situation the U.S. Probation office does not oppose
his motion for early termination.
United States, however, opposes the motion due to an
unsatisfied forfeiture judgment against Mr. Pennington in the
amount of $392, 250.00. (See Dkt. 102). On January
15, 2015, the court sentenced Mr. Pennington to a term of 42
months in Bureau of Prisons custody after he pled guilty to
three counts of a superseding indictment filed against him.
(Dkt. 88, p. 1-2). After his release, defendant was to be on
supervised release for three years. (Id., p. 3). Mr.
Pennington was not ordered to pay Restitution in the
Judgment; however, the Schedule of Payments contained a
special instruction that “[t]he defendant shall forfeit
the defendant's interest in the following property to the
United States: Money judgments of $287, 250.00 and $105,
000.00, for a cumulative amount of $392, 250.00.” (Dkt.
88, p. 6). That sum represented the value of the proceeds
derived or obtained from the offenses in counts 2, 6, and 45
of the superseding indictment of which Pennington was
February 16, 2018, the court entered an Order of Seizure and
Forfeiture as to Certain Substitute Property of Defendant.
(Dkt. 95). At the time of the Order, the unpaid balance on
defendant's personal forfeiture judgment was $391,
640.00. The court found that due to Mr. Pennington's acts
or omissions the illegal proceeds could not be located upon
due diligence or the proceeds had been sold to, transferred,
or deposited with a third party. (Dkt. 95, p. 2).
Consequently, the court entered an order forfeiting
substitute property pursuant to Federal Rule of Criminal
Procedure 32.2(e) and 21 U.S.C. § 853(p)(1)(A) - (B).
(Id.). The substitute property consisted of
men's and women's jewelry in an aggregate value of
$41, 439.66. (Id.). A Final Order of Forfeiture was
entered on July 18, 2018 (Dkt. 100) which specified that
“defendant shall be given a credit for the above
property against his forfeiture money judgment.”
Crediting Mr. Pennington for the substitute property
forfeited to the United States leaves a balance due of $350,
United States' objection to the motion for early
termination notes that Mr. Pennington filed for bankruptcy
while on supervised release in this matter, United States
Bankruptcy Court for the District of Kansas case number
19-10112-13. The United States was not initially listed as a
creditor in those proceedings despite the remaining balance
due on the forfeiture judgment. According to counsel for the
government, when she inquired of Mr. Pennington's
bankruptcy counsel as to why the forfeiture judgment had not
been reported to the bankruptcy court, Mr. Pennington's
counsel advised they had not been made aware of the criminal
court is mindful that Mr. Pennington has not had a chance to
respond to the United States' allegations, but notes that
Mr. Pennington's motion does not mention the forfeiture
judgment. The motion instead glosses over the money judgment
stating only that “Mr. Pennington has paid all fines
and court costs, and has no restitution.” (Dkt. 101).
The court finds Mr. Pennington's statement is not
entirely accurate in light of the outstanding balance owed to
the United States.
defendant may be compliant with a majority of the terms of
his supervision, then, the court finds that he is not in
compliance with special condition number 3 which required him
to “[p]ay outstanding monetary restitution imposed by
the court.” (Dkt. 88, p.4). The court is particularly
troubled by defendant's failure to list the judgment in
his bankruptcy proceedings, when doing so would potentially
have precluded the United States from receiving payments
through those proceedings as a creditor (which, to
defendant's benefit, would have lowered the balance due
on defendant's criminal monetary judgment). Under those
circumstances, the court does not deem Mr. Pennington to be
an appropriate candidate for early termination of supervised
release at this time. The court's denial of the motion is
without prejudice to Mr. Pennington's ability to re-file
the motion, providing that he can state a satisfactory
explanation for his failure to list the criminal monetary
judgment in his bankruptcy proceedings and address his
intentions as far as satisfying that judgment in the future.
reasons stated above, Mr. Pennington's motion for ...