Free Sentencing Memorandum - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona John R. Lopez IV Assistant U.S. Attorney Arizona State Bar No. 019182 Two Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Andrew Taylor, Defendant.

CR-04-0809-PHX-NVW UNITED STATES' SECOND S U P PL EME NT AL SE NT E N C I N G MEMORANDUM

The United States of America, through undersigned counsel and at the Court's request, hereby files its Second Supplemental Sentencing Memorandum. Respectfully submitted this 30th day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona /S/ JOHN R. LOPEZ IV Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES HOW MAY THIS COURT DIRECT REPAYMENT BY DEFENDANT FOR ATTORNEY'S FEES? This Court may issue an order to recoup attorney's fees paid pursuant to 18 U.S.C.

4 §3006A(f)(Criminal Justice Act), which provides in relevant part that: 5 6 7 8 9 This Court, however, may not impose that order of repayment as an element of a restitution 10 11 Circuit has interpreted restitution a repayment of losses "stemming directly from the defendant's 12 criminal offense i.e. victim restitution." Id; see also United States v. Lomow, 266 F.3d 1013, 13 14 This court also may not impose repayment of attorney's fees as a condition of defendant's 15 supervised release. Eyler, 67 F.3d at 1393-94; see also United States v. Lorenzini, 71 F.3d 1489 16 17 authority under 18 U.S.C. §3583(d), which requires that discretionary conditions of release be 18 reasonably related to the following factors, as set forth in §3553(a): 19 20 21 22 23 24 25 26 27 28 Eyler, 67 F.3d at 1393. The Court in Eyler concluded that "a condition that defendant reimburse CJA expenditures" is unrelated to any of the above factors, and therefore fails to satisfy the requirements of §3583. Id.; see also Lorenzini, 71 F.3d at 1492-93. 2 the nature and circumstance of the offense and the history and characteristics of the defendant; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide defendant with needed training, medical care, or other correctional treatment in the most effective manner. (9 th Cir. 1995). The Ninth Circuit has concluded that such payments are outside this Court's 1020 (9 th Cir. 2001); United States v. Tyler, 767 F.2d 1350, 1351 (9 th Cir, 1985). order. United States v. Eyler, 67 F.3d 1386, 1394, n.10 (9 th Cir. 1995). This is because the Ninth [w]henever the United States magistrate judge of the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney . . . or to the court . . . as a reimbursement.

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Such recoupment order for attorney's fees, then, must be of a stand-alone character. The Ninth Circuit has concluded that "where the court orders repayment [of attorney's fees paid under CJA], there are a number of ways the government can ensure that those funds are repaid." Lorenzini, 71 F.3d at 1493. The Circuit has recognized the viability of contempt proceedings against a defendant for failure to repay; entry of a judgment debt for the relevant amount; and imposition of a judgment lien against defendant's property. Id. At present, these avenues appear to be the only ones available for enforcement of an attorney fee order in this situation. II. MAY THE COURT ORDER RESTITUTION PAYABLE WHILE DEFENDANT IS SUBJECT TO A BANKRUPTCY STAY? 11 U.S.C. § 362(b)(1) provides that the filing of a bankruptcy petition "does not operate as a stay ­ under subsection (a) of this section, of the commencement or continuation of a criminal action or proceeding against the debtor." Courts have held that the section 362(b)(1) exemption to the automatic bankruptcy stay for "the commencement or continuation of a criminal action or proceeding against the debtor" includes enforcement of orders to pay fines and restitution. See, e.g., In re Cassaundra, 282 B.R. 876, 879-80 (Bankr. E.D. Ark. 2002) (holding that the automatic bankruptcy stay does not apply to criminal proceedings, including the enforcement of orders to pay fines and restitution; thus, rejecting United States Supreme Court dicta in Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 560-61 (1990), that "[i]t is not an irrational or incoherent policy choice to permit prosecutions of criminal offenses during the pendency of a bankruptcy action and at the same time to preclude probation officials from enforcing restitution orders while a debtor seeks relief under Chapter 13."); see also Bryan v. Rainwater, 254 B.R. 273, 277 (N.D. Ala. 2000) ("The Davenport decision did not hold that the automatic stay precludes probation officials from enforcing restitution orders while a debtor seeks relief under Chapter 13. While Davenport's dicta does indicate that the Court felt that section 362(b)(1) is not inconsistent with granting protection from restitution orders under Chapter 13, its holding focused squarely on whether restitution obligations were in fact `claims' or `debts' within the meaning of the bankruptcy code and therefore were dischargeable."); Cf. In re Gruntz, 202 F.3d 3

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1074, 1085-87 (9 th Cir. 2000) (The automatic bankruptcy stay does not apply to state criminal prosecutions, even if the underlying purpose of the criminal prosecution is debt collection.) In this case, the government submits that the Court may permissibly order that Defendant make restitution by a date certain even though Defendant may otherwise be subject to an automatic bankruptcy stay at the time restitution is due. Respectfully submitted this 30th day of November, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona /S/ JOHN R. LOPEZ IV Assistant U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on November 30, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM /ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Cameron Morgan 4295 North 75 th Street Scottsdale, AZ 85251

/ S/ JOHN R. LOPEZ IV

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