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United States v. Davis

United States District Court, N.D. Iowa, Eastern Division

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT RAY DAVIS, Defendant.

          REPORT AND RECOMMENDATION

          KELLY K.E. MAHONEY, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on the Government's request for sanctions and enforcement of restitution order (Docs. 73, 85, 94). I conducted a hearing on the matter, pursuant to 18 U.S.C. § 3613A(b)(1), on October 30, 2017 (Doc. 88). The parties submitted post-hearing briefs: the Government submitted a brief on December 11, 2017 (Doc. 94), and Defendant Robert Ray Davis filed a reply brief on December 13, 2017 (Doc. 95). I submit this report and recommendation for the district court's consideration of the appropriate remedy for Davis' default on payment of restitution under 18 U.S.C. § 3613A(a)(1).

         I. BACKGROUND

         The court originally sentenced Davis on April 8, 2009, for his failure to pay child support conviction. Doc. 40. The court imposed a sentence of 21 months' imprisonment followed by one year of supervised release and ordered that Davis pay restitution in the amount of $117, 655.63 to Iowa Child Support Recovery Unit. Id. The court also ordered Davis to “notify the United States Attorney within 30 days of any change of mailing or residence address that occurs while any portion of the financial obligation(s) remains unpaid.” Id; see also 18 U.S.C. § 3612(b)(1)(F). Davis' supervised release was terminated on August 22, 2011. Doc. 51. Davis made restitution payments until 2014. Docs. 73-1 at 1, 94-1.

         It appears both Davis' probation officer and the United States Attorney's Office advised Davis that he must make restitution payments and maintain contact with the United States Attorney's Office until restitution was paid in full. Doc. 73-1 at 2. It also appears Davis previously moved, in 2012, without notifying the United States Attorney's Office. Doc. 73-1 at 2. The Government was able to locate and obtain financial information from Davis in 2012, and restitution payments resumed until January 2014. Id. Davis failed to appear for multiple debtor's examinations in 2014. Docs. 56, 61, 65, 68, 73-1 at 4.

         On October 27, 2016, the court found Davis in default on repayment of restitution, and a default judgment was entered the following day. Docs. 71, 72. I granted the Government's motion to issue a warrant for Davis' arrest on July 18, 2017. Doc. 74. The Government was uncertain of Davis' whereabouts from around January 2014 (when the last payment was received) until after I issued an arrest warrant in July 2017. Doc. 73-1 at 2-5. Davis made his initial appearance on the arrest warrant on October 3, 2017, and the parties agreed to conduct a debtor's examination the following day. Doc. 76. Davis failed to appear for that debtor's examination due to transportation issues, and I granted his attorney's request to continue the examination to the following day. Docs. 80, 81. The Government completed the debtor's examination as scheduled on October 5, 2017. Doc. 82. I conducted the final hearing on enforcement of the restitution order on October 30, 2017. Doc. 88. Davis testified at the Government's request, and Larry Helgemo testified on Davis' behalf. Id. Davis has been represented by court- appointed counsel, David Eastman, since his initial appearance in this case. See Docs. 77, 80, 88.

         There is no dispute[1] that Davis has failed to make a restitution payment since the last garnishment of his wages on January 13, 2014. There is also no dispute that he currently owes an unpaid balance of $43, 134.33. The Government requests the court order an updated presentence investigation report, resentence Davis to three months' imprisonment, and order a payment schedule requiring Davis to pay no less than $300 per month. Doc. 94. Davis requests the court find him in contempt but allow him to purge the contempt by finding a job within a specified time period and making appropriate restitution payments.

         II. DISCUSSION

         After finding a defendant in default on payment of restitution, a court may take various actions to obtain compliance with the restitution order. See 18 U.S.C. § 3613A; see also United States v. Rogers, No. CR08-0072, 2012 WL 3151564, at *2 (N.D. Iowa Aug. 2, 2012) (outlining available remedies for default on payment of restitution), report and recommendation adopted, 2012 WL 3689477 (N.D. Iowa Aug. 27, 2012). This includes: (1) revoking or modifying terms of probation or supervised release; (2) resentencing the defendant pursuant to 18 U.S.C. §3614; (3) holding the defendant in contempt of court; (4) entering a restraining order or injunction; (5) ordering the sale of the defendant's property; (6) accepting a performance bond; (7) entering or adjusting a payment schedule; or (8) taking any other action necessary to obtain compliance with the order of restitution. 18 U.S.C. § 3613A(a)(1). In determining which is the appropriate action, “the court shall consider the defendant's employment status, earning ability, financial resources, the willfulness in failing to comply with the . . . restitution order, and any other circumstances that may have a bearing on the defendant's ability or failure to comply with the order of a fine or restitution.” 18 U.S.C. § 3613A(a)(2).

         Davis has already completed his term of supervised release. I credit the Government's contentions (see Doc. 94 at 13 n.3) that Davis does not own property or have resources to warrant a sale or performance bond. Accordingly, it appears the only available sanctions would be to order a payment schedule, hold Davis in contempt, and/or resentence Davis to a term of imprisonment.

         Civil contempt, which is remedial in nature, serves “to enforce compliance with [a court's] lawful orders.” Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., No. 09-CV-175-LRR, 2011 WL 4625661, *3 (N.D. Iowa Oct. 3, 2011) (quoting Shillitani v. United States, 384 U.S. 364, 370 (1966)), adopting report and recommendation, 2011 WL 4625721 (N.D. Iowa Sept. 1, 2011); see also Hartman v. Lyng, 884 F.2d 1103, 1106 (8th Cir. 1989). “When the contempt order involves imprisonment, if ‘the contemnor is able to purge the contempt and obtain his release by committing an affirmative act, and thus ‘carries the keys of his prison in his own pocket, ' it remains coercive, and therefore civil.” United States v. Lippitt, 180 F.3d 873, 877 (7th Cir. 1999) (citation omitted) (quoting Int'l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 828 (1994)). Criminal contempt, on the other hand, provides “a punishment for disobedience.” Cedar Rapids Lodge, 2011 WL 4625661, at *3 (citing United States v. Waggoner, 103 F.3d 724, 727 (8th Cir. 1997)). Criminal contempt requires a “showing of willfulness.” United States v. Ofe, 572 F.2d 656, 657 (8th Cir. 1978) (per curiam).[2]

         When a defendant knowingly fails to pay restitution, a court may resentence the defendant to “any sentence which might originally have been imposed”[3] if the court determines: (1) the defendant willfully refused to pay [restitution] or had failed to make sufficient bona fide efforts to pay [restitution]; or (2) in light of the nature of the offense and the characteristics of the person, alternatives to imprisonment are not adequate to serve the purposes of punishment and deterrence.” 18 U.S.C. § 3614(a), (b). The court cannot resentence a defendant “solely on the basis of inability to make payments because the defendant is indigent.” 18 U.S.C. § 3614(c). The court need not consider options other than imprisonment if the failure to pay restitution was willful. See United States v. Montgomery, 532 F.3d 811, 814-15 (8th Cir. 2008).

         I FIND that Davis not only failed to make bona fide efforts to find employment and make restitution payments, he willfully failed to pay restitution. Davis moved to Florida around early 2014. He knew at that time he still owed a significant amount in restitution. It is uncontested that Davis did not notify the United States Attorney's Office of this move or his updated address. He also failed to maintain contact with the United States Attorney's Office from that time forward, even to discuss any purported inability to make restitution payments. Davis claims he looked for employment for a few months after he moved but made no further attempts to find regular work. He also denied (during the debtor's examination) being employed since 2014, although the record shows (and he admits) he performed carpentry and similar work on a regular basis for pay, including for Mr. Helgemo. While Davis indicated he may have access to resources to use toward restitution, from his girlfriend, Mr. Helgemo, and another person he performed work for, he has not made arrangements to make any payment toward restitution (aside from the proposal that Mr. Helgemo pay $40, 000 toward Davis' restitution on the condition the court not impose imprisonment). This demonstrates Davis has not acted in good faith in seeking employment or working to pay his restitution. In addition, Davis arranged for payments for work he performed go directly to his girlfriend (including checks written to her rather than to Davis). Davis acknowledged during both the recent debtor's examination and the hearing on October 30 that he did so to avoid paying his child support obligations (restitution).

         Davis rationalizes that although his girlfriend received payments for work he performed, that money went to pay for his living expenses (which his girlfriend subsidized) and that he did not earn enough to make restitution payments. This argument might have been persuasive if Davis had made good-faith efforts to find regular work, maintained contact with the United States Attorney's Office, and attempted to make even nominal payments towards his restitution over the past three years. Although Davis has not been employed on a regular basis, I believe ...


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