UNITED STATES v. JENNINGS (2024)

ORDER

This matter is before the court on Defendant's amended objections [DE #381] to the Government's application for garnishment of fees, Defendant's motion to quash the application for garnishment [DE #390], Defendant's amended motion for a hearing [DE #383], and Defendant's motion to appoint counsel [DE #379], the matter having been referred for disposition pursuant to 28 U.S.C. § 636(b), 28 U.S.C. § 3008, and Local Civil Rule 72.3(h)(8) (E.D.N.C. May 2023). For the reasons stated below, Defendant's objections and motions are DENIED.

BACKGROUND

On June 13, 2019, Defendant was found guilty of thirteen counts of crimes related to sex trafficking, child pornography, and prostitution. (Jury Verdict [DE #119].) The court sentenced Defendant to multiple life sentences and ordered him to pay $1,880,648.25 in restitution and a $1,300 special assessment, for a total of $1,881,948.25. (Am. J. [DE #194] at 3, 8.) The Fourth Circuit affirmed. United States v. Jennings, 860 F. App'x 287 (4th Cir. 2021) (per curiam). As of July 25, 2024, a balance of $1,881,474.85 remained outstanding on Defendant's financial obligation. (Amazon Writ Appl. [DE #359]; E Marketing Global Writ Appl. [DE #360].)

On July 25, 2024, the Government filed applications for writs of garnishment upon Defendant's property. (See Amazon Writ Appl.; E Marketing Global Writ Appl.) The writs were issued to two Garnishees, E Marketing Global Street Money Magazine (“E Marketing Global”) and Amazon, Inc., Corporation Service Company (“Amazon”). (Amazon Writ Appl.; E Marketing Global Writ Appl.) The writ applications state that Defendant, doing business as Smilez Finesse, published the novel “The Story of Smilez Finesse: The Nation's Pimp,” and that both companies may possess proceeds, cash, or cash equivalents from the novel's sale. (Amazon Writ Appl. at 2; E Marketing Global Writ Appl. at 2.) Garnishee E Marketing Global filed an answer to the writ of garnishment. (E Marketing Global Answer [DE #373].) Garnishee Amazon has not formally answered; it requested more information about Defendant. (Amazon Answer [DE #385].)

Defendant objected to the Government's applications and requested a hearing. (Def.’s Objs. [DE #368]; Def.’s Request Hr'g [#368-1]; Def.’s Am. Request Hr'g [DE #383].) He later amended his objections and filed a motion to quash the applications. (Def.’s Am. Objs. [DE #381]; Def.’s Mot. Quash [DE #390].) Defendant raises two arguments related to the applications for writs of garnishment. First, Defendant contends he does not owe the monetary penalties. (Def.’s Am. Objs. at 1–2; Def.’s Mot. Quash.) Second, Defendant claims an exemption due to judgments for support of minor children. (Def.’s Am. Request Hr'g at 3.) Defendant also requests court-appointed counsel should his request for hearing be granted. (Def.’s Mot. Appoint Counsel [DE #379].)

DISCUSSION

The Mandatory Victims Restitution Act of 1996 (“MVRA”), Pub. L. No. 104-132, 110 Stat. 1227–41, allows the court to order defendants convicted of certain offenses to make restitution to their victims. 18 U.S.C. § 3663A(a). The government can seek enforcement of these restitution orders pursuant to the Federal Debt Collection Procedures Act (“FDCPA”). United States v. Campbell, No. 3:98-CR-182-MOC-DSC-1, 2021 WL 1894246, at *1 (W.D.N.C. May 11, 2021) (citing 18 U.S.C. §§ 3613(a), 3664(m)(1)(A)(ii)). One mechanism for collecting a restitution judgment under the FDCPA is a writ of garnishment against property in which the defendant has “substantial nonexempt interest and which is in the possession, custody, or control” of a third party (garnishee) other than the defendant. 28 U.S.C. § 3205(a). The FDCPA outlines the general requirements for issuing a writ of garnishment and articulates the garnishee's ability to respond to the writ as well as the defendant's ability to object to the writ or to the garnishee's response. 28 U.S.C. §§ 3201–3205.

I. Objections and Motion to Quash

A defendant may object to an application for writ of garnishment. Under § 3202 of the FDCPA, a defendant can object if he believes the property being taken qualifies under an exemption pursuant to 18 U.S.C. § 3613(a)(1). 28 U.S.C. § 3202(b); United States v. Blondeau, No. 5:09-CR-117-H, 2011 WL 6000499, at *2–3 (E.D.N.C. Nov. 1, 2011), M. & R. adopted by 2011 WL 6001281 (E.D.N.C. Nov. 30, 2011) (identifying applicable exemptions). This section also allows a defendant to move to quash the writ, and, in some circumstances, to have a hearing on such a motion. 28 U.S.C. § 3202(d). A defendant may also object under § 3205(c)(5) of the FDCPA by filing written objections to the garnishee's answer. 28 U.S.C. § 3205(c)(5).

Here, Defendant has not filed any written objections to either Garnishee's answer. While Defendant has made filings after the Garnishees’ respective answers, neither of these filings include objections to the Garnishee's answers. (See Def.’s Am. Objs.; Def.’s Reply [DE #388].) Instead, Defendant's objections are directed at the Government, not E Marketing Global or Amazon. (See Def.’s Am. Objs.; Def.’s Reply.) Thus, Defendant's objections will only be analyzed under § 3202. For the reasons outlined below, Defendant's objections and motion to quash are denied.

A. Exemption

“The sole exemptions available to a criminal debtor owing restitution are found in 18 U.S.C. § 3613(a).” Blondeau, 2011 WL 6000499, at *2. Those exemptions are

(1) Wearing apparel and school books; (2) Fuel, provisions, furniture, and personal effects; (3) Books and tools of a trade, business, or profession; (4) Unemployment benefits; (5) Undelivered mail; (6) Certain railroad and military annuity and pension payments; (7) Workmen's compensation; (8) Judgments for support of minor children; (9) Certain service-connected disability payments; and (10) Assistance under the Job Training Partnership Act.

Id. at *3.

Defendant claims an exemption for judgments for support of minor children.¹ (Def.’s Am. Mot. Hr'g at 3.) The support of minor children exemption applies only “when there is an order for child support.” United States v. Miller, No. 17-CR-196-DKC, 2019 WL 1934749, at *2 (D. Md. May 1, 2019). The defendant must provide a copy of the order to the court; without the order, the defendant's exemption claim is incomplete. Id.; United States v. Bird, No. 2:09-CR-15, 2009 WL 4801374, at *2 (W.D.N.C. Dec. 8, 2009) (“The Court ․ will not speculate as to whether there is an order for child support.”).

Here, Defendant has not provided the court with a child support judgment; he references the exemption once in his filings, but his reference makes no mention of a court order. (Def.’s Reply at 2.) Without an order for child support, this exemption does not apply. Miller, 2019 WL 1934749, at *2.

B. Waiver of Debt

Defendant claims the court waived the $1,880,648.25 owed in restitution. (Def.’s Objs.; Def.’s Am. Objs.; Def.’s Mot. Quash.) His belief stems from a statement made by the court during Defendant's sentencing hearing: “You're indigent and you can't pay the Justice for Victims of Trafficking Act assessment, so I don't impose that.” (Sent. Hr'g Tr. [DE #210] at 43.) The Justice for Victims of Trafficking Act (“JVTA”) allows the Court to impose an additional $5,000 assessment on non-indigent individuals for crimes related to sex trafficking and exploitation. 18 U.S.C. § 3014(a). In Defendant's case, this assessment was not ordered. (Am. J. at 8.)

This argument fails for two reasons. First, this is not a proper objection under § 3202 because the debt Defendant owes is not the result of a default judgment. Under § 3202, a debtor may challenge the validity of a debt only if the judgment was entered by default. See 28 U.S.C. § 3202(b) (only in case of default judgment may debtor object on basis that he does not owe what the government claims). Moreover, even if Defendant could raise this argument, he confuses Judge Flanagan's waiver of the $5,000 JVTA assessment with waiver of restitution. The amended judgment in Defendant's case indicates the JVTA assessment was not imposed. (Am. J. at 8.) However, the court did impose criminal monetary penalties totaling $1,881,984.25 (restitution of $1,880,648.25 plus a $1,300 special assessment). (Id.) Accordingly, there is no merit to Defendant's argument that he does not owe the money the Government claims. Defendant's objections and motion to quash are denied because he fails to show he is entitled to an exemption under § 3202.

II. Hearing Request

The FDCPA authorizes a defendant to request a hearing on a writ of garnishment. 28 U.S.C. §§ 3202(d), 3205(c)(5). As outlined below, Defendant fails to meet the requirements for a hearing under the FDCPA. Accordingly, his request for a hearing is denied.

A. Section 3202(d)

Section 3202(d) of the FDCPA allows a defendant to request a hearing within twenty days of receiving notice of the application for writ of garnishment. 28 U.S.C. § 3202(d). The FDCPA imposes significant limitations on the issues subject to a hearing, specifically limiting them to

(1) [ ] the probable validity of any claim of exemption by the judgment debtor; (2) [ ] compliance with any statutory requirement for the issuance of the postjudgment remedy granted; and (3) if the judgment is by default and only to the extent that the Constitution or another law of the United States provides a right to a hearing on the issue, to [ ] (A) the probable validity of the claim for the debt which is merged in the judgment; and (B) the existence of good cause for setting aside such judgment.

28 U.S.C. § 3202(d); United States v. Melchor, No. 1:13-CR-28-1, 2021 WL 651020, at *3 (M.D.N.C. Jan. 25, 2021), M. & R. adopted by 2021 WL 633649 (M.D.N.C. Feb. 18, 2021).

“Courts routinely deny a request for ‘hearing where the [defendant] did not object based on one of the issues specified in [section 3202], where the objection is plainly without merit, or where the objection is simply a matter of statutory interpretation.’ ” Melchor, 2021 WL 651020, at *3 (second alteration in original) (quoting United States v. Page, No. 1:13-CV-119, 2013 WL 2945070, at *4 (N.D.W. Va. June 14, 2013)).

Here, Defendant received notice of the applications for writs of garnishment on July 30, 2024. (Cert. Service [DE ##363, 364].) He objected and requested a hearing on August 12, 2024, within the twenty-day requirement of § 3202(d). (Def.’s Objs.; Def.’s Mot. Hr'g at 1.) In his filings, Defendant does not raise any of the limited issues within § 3202(d). He does not claim non-compliance with a statutory requirement, nor does he contend that his restitution resulted from a default. (See Def.’s Objs.; Def.’s Am. Objs.) Moreover, as discussed above, no exemptions apply to Defendant's situation, and the only other argument he makes is without merit. Accordingly, Defendant is not entitled to a hearing under § 3202(d). See Melchor, 2021 WL 651020, at *3.

B. Section 3205(c)(5)

When a defendant objects to a garnishee's answer under § 3205(c)(5), he may also request a hearing related to those objections. 28 U.S.C. § 3205(c)(5). When a defendant's request for a hearing is not in response to the garnishee's answer, he is not entitled to a hearing under § 3205(c)(5). Page, 2013 WL 2945070, at *5; Melchor, 2021 WL 651020, at *3 n.3. As noted above, Defendant made no objections to either Garnishee's answer. None of his filings reference either Garnishee's answer, nor do they specifically request a hearing related to objections to either Garnishee's answer. Accordingly, Defendant is not entitled to a hearing under § 3205(c)(5). See Page, 2013 WL 2945070, at *5.

III. Motion for Appointment of Counsel

Defendant also requested court-appointed counsel to represent him in the event a hearing is ordered. (Def.’s Mot. Appoint Counsel.) Because Defendant's request for a hearing is denied, any request for appointment of counsel is moot. United States v. Umstead, No. 1:04-CR-208-1, 2020 WL 5913427, at *2 (M.D.N.C. Sept. 1, 2020), M. & R. adopted by 2020 WL 5913164 (M.D.N.C. Oct. 6, 2020).

Moreover, Defendant has not demonstrated he is entitled to appointment of counsel. “A garnishment enforcing a criminal restitution judgment is civil in nature and is collateral to the underlying criminal conviction.” Umstead, 2020 WL 5913427, at *3. There is no constitutional right to counsel in civil cases, and courts should exercise their discretion to request an attorney to represent a pro se civil litigant only in exceptional cases.² Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). The court must undertake a “fact-specific, two-part inquiry” to determine if exceptional circumstances exist, asking:

(1) whether the [litigant] “has a colorable claim” and (2) considering the claim's objective complexity and the [litigant's] subjective abilities, whether the [litigant] “lacks the capacity to present it.” If both questions are answered affirmatively, the case presents exceptional circumstances.

Jenkins v. Woodard, 109 F.4th 242, 247 (4th Cir. 2024) (quoting Whisenant v. Yuam, 739 F.2d 160, 162 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296 (1989)). Applying this inquiry to a writ of garnishment proceeding, courts ask whether the defendant has a “colorable [defense to the garnishment] but lacks the capacity to present it.” See Umstead, 2020 WL 5913427, at *3 (quoting Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978)); United States v. Greene, No. 1:15-CR-133-1, 2016 WL 3526054, at *5 (M.D.N.C. June 3, 2016), M. & R. adopted by 2016 WL 3527705 (M.D.N.C. June 23, 2016), and subsequently aff'd by 671 F. App'x 165 (4th Cir. 2016).

Defendant has not shown that his case is one of exceptional circumstances. Defendant offers no colorable defense to the application for writ of garnishment – both his waiver argument and his claim for exemption are without merit. Moreover, Defendant has repeatedly filed motions independently of counsel and asserted a range of legal claims on his own behalf. (See, e.g., Def.’s Mot. Bail [DE #201], Def.’s Mot. TRO [DE #241], Def.’s Mot. Vacate [DE #264].) This suggests Defendant has the “wherewithal to [ ] articulate the legal and factual basis of his claims.” Neal-Williams v. Daramy, No. 1:23-CV-2166-SAG, 2024 WL 3424078, at *5 (D. Md. July 16, 2024). Defendant has not demonstrated exceptional circumstances warranting appointment of counsel, and Defendant's motion for appointment of counsel is therefore denied.

CONCLUSION

For the reasons explained above, Defendant's amended objections [DE #381], motion to quash [DE #390], amended motion for a hearing [DE #383], and motion to appoint counsel [DE #379] are DENIED.

FOOTNOTES

1.   Defendant filed both objections and amended objections. Substantively, the objections do not differ significantly. (Compare Def.’s Objs. with Def.’s Am. Objs.) However, alongside his original objections, Defendant filed a request for a hearing including a form claiming two exemptions. (Def.’s Mot. Hr'g [DE #368-1] at 2–3.) He subsequently amended his objections, claiming only one exemption. (Def.’s Am. Mot. Hr'g at 3.) Accordingly, the undersigned asseses only his amended claim for exemption.

2.   There is also no statutory right to court-appointed counsel in post-conviction litigation involving collection of criminal restitution under the Criminal Justice Act. 18 U.S.C. § 3006A; United States v. Greene, No. 1:15-CR-133-1, 2016 WL 3526054, at *5 (M.D.N.C. June 3, 2016), M. & R. adopted by 2016 WL 3527705 (M.D.N.C. June 23, 2016), and subsequently aff'd by 671 F. App'x 165 (4th Cir. 2016).

KIMBERLY A. SWANK, United States Magistrate Judge