Free Reply/Response Misc - District Court of Connecticut - Connecticut

Case 3:03-cr-00078-SRU Document 71 Filed 10/14/2005 Page 1 of 3
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I September 29, 2005 N]
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I Clerk of the Court
I U,S. District Court Criminal No. 3:03CR78(SRU)
I District of Conneticut
Federal Courthouse Building
I 101 Lafayette Boulevard mstmgtmgormgcumt l
I Bridgeport, CT 06601 Munn BRIDGEHQETJ
, ` . Z ? ‘ ___,.»•’
Dear Clerk of the Court: E, °"
The Defendant respectfully submits this re ’
G¤Vs¤;¤ms¤*¤ ' S Ths ¤ ernment
continues to contend that the Defendant s restitution order enter-
ed by the court, stipulates that payments are "immediately due ", I
and the Defendant's request for a hearing was not timely. More I
importantly here, the Government’s Writ of Execution is not valid I
and lacks any merit. On June 10, 2005 the Defendant received no- I
tice from the Department of Labor (DOL), that his successful ad- I
ministrative claim against his former employer L&S Mortgage, was I
subject to attachment due to the Government's Writ of Execution. I
_On June 13, 2005 a copy of the Writ of Execution was faxed to the I
Defendant's attorney. On June 15, 2005 the Defendant sent written I
notice requesting his attorney to file a [Notice Requesting A Hear- {
ing] five day's before the marshal°s service on Defendant June 20, I
2005. (See Letter) Rule 44(a) Federal Rules of Criminal Procedure, I
"The Defendant's right to counsel at every stage of proceeding's, I
from initial appearance through appeal ". The Defendant relied I
solely on his attorney to file notice in a timely manner. Subse- I
quently, the Defendant filed Notice For A Hearing as soon as he 5
realized his attorney had not done so, Pursuant to 28§U.S.C. 3202 I
(d). See Letter) In the defendant's prior letter to the Court, the I
Defendant did misplace 28§3203 for 28§3202(d). I
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As to the valaidity of the Government's claim, the Defendant con- I
tends that the Government Writ of Execution filed against the De- I
fendant's wage earnings is net va1id;·yt ".» sur; ld gritnu.
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"The debtor's earnings shall not be subject to egecution while in j
the posession, custody, or control of the debtor s employer .
The Government's contention that the Defendant stipulated to a re- .
stitution, "due immediately" in his plea agreement, or ordered by
the Court, is simply without merit. Neither does it state or is I
there any such provision written in the Defendant s plea agreement _
or [Rider Concerning Restitution] dated February 27, 2004. Apparent- I
ly, the [Seperate Restitution Order] was entered May 18, 2004, the g
day after the Defendant's sentencing hear1ng,w1thout the Defendant I
being present. The Defendant nor his attorney has been priviledged
to the Government [Seperate Restitution Order[ until now. The De- I
fendant's Judgement in Criminal Case and Sentencing Transcripts I
clearly specify the Defendant's restitution order as being, ine
stallment payment's of two hundred($250.00) fifty dollars per month I
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Case 3:03-cr-00078-SRU Document 71 Filed 10/14/2005 Page 2 of 3 N
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during the Hefendant's supervised release, as so ordered by the court.
18§ U.S.C. 3572(d)(1) Time Method of Pa ment and Related Items `
:
"A person sentenced to pay a fine or other Monetary penalty, includ- =
ing restitution, shall make such payment immediately, [unless] in
the interest of justice, the court provides payment on a date Gertain,
or in [installments]".
Clearly in the Defendant's case, the Court ordered the Defendant to U
pay a special assessment of one hundred ($100.00) dollars, which the I
Defendant has paid timely, and two hundred ($250.00) fifty dollars J
per during supervised release. The Court entered this order at the
Defendant s sentencing hearing and subsequently in the Defendant's
(JCC). (See Transcripts, Jcc) U.S. v. Nucci 364 F.3d 419 (2nd Cir. {
2004)*
Respectfully, the Defendant moves to quash the Government's Writ of
Execution, because it is not valid and lacks any merit for all the
forgoing reasons. The Defendant request that the Court proceed with 1
the original order on the Defendant of installment payments during i
the Defendant's supervised release. The Defendant further request
that the Court issue an order directing the Department of Labor(DOL) Q
to turn over the Defendant's wage earnings, so he may support his ,
three dependent children, and be prepared to pay restitution upon !
_ supervised release. _

Res tfully su tted, [
H
K eth Moor E
Kenneth Moore i
15082—O14 RDAP i
P.0. Box 1000 1
Lewisburg, PA 17837 ` ,
cc: Deidre A. Murray, AFPD [
Federal Defender's Office -
2 Whitney Avenue Suite 300
New Haven, Ct 06510
Christine Scrarrino, AUSA [ l
U.S. Attorney's Office i
P.0. 1824 - ' . [
New Haven, CT 06510 ` $
a

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Case 3:03-cr-00078-SRU Document 71 Filed 10/14/2005 Page 3 of 3
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* U.S v. Nucci 364 F.3d 419 ( 2nd Cir. 2004 )
Where a judgement is silent as to the timing of restitution paye I
ment, the default rule is that full payment is to be immediate: I
A person sentenced to pay .... restitution[] shall make such 1
payment immediately, unless, in the interest of justice, the I
court provides for pagment on a date certain or in installments " I
18 U.S.C. 5 2 d 1 . ie; See Defendant s sentencing tran—; _
s scripts) R
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Even if as the Government's contends the Defendant's restitution I
is " immediately due ", or as the government suggest that the 1
Defendant's restitution debt would be diminished by virtue of the I
Government°s lien, the Defendant wishes to remind the Court that 1
the Defendant has been incarcerated for sixteen months. [If]uthe I
Defendant was ordered to pay two hundred fifty ($250.00) dollars
per month, that would total three thousand ($3,000.00) dollars in ’
restitution payments. The State Department¤of Labor holds in esexws
crow a total of ($5 620.00). At a minimum the Defendant will re— ;
quest that the (DOL) be directed to pay the Defendant ($2,620.00)
of his wage earnings, the difference of what would be due if the
restitution were to begin before the Defendant's supervised re- -
lease. The Defendant further suggest that the court would assess -
a ($250.000 reduction from any future wage earnings due the Deé .
fendant from his former employer L & S Mortgage to the Defendant's
sucessful administrative claim. |
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