United States District Court, D. Minnesota
M. Secord, Esq., Assistant United States Attorney,
Minneapolis, MN, on behalf of Plaintiff.
Richard Allen Kay, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Richard Allen Kay's (“Kay”)
Objection to Garnishment and Motion to Quash Same [Docket No.
320]. Kay objects to the Amended Order on Writ of Garnishment
[Docket No. 310] granting the Government's Amended
Application for Writ of Garnishment [Docket No. 309], and
requests an order quashing the writ. For the reasons set
forth below, Kay's Objection is sustained, the
Government's Writ of Garnishment is quashed, and the
Amended Order on Writ of Garnishment is vacated.
charged in a 13 count Superseding Indictment with conspiracy
offenses related to both distribution of controlled
substances and interstate transportation of stolen goods.
See Superseding Indictment [Docket No. 93].
pleading guilty, Kay was sentenced to 200 months
imprisonment, to be followed by a five year supervised
release term on June 15, 2012, . See Sentencing J.
[Docket No. 178]. Kay was also ordered to pay a $500, 000
fine and $300, 000 in restitution. Id. Under the
Sentencing Judgment's Schedule of Payments, Kay's
monetary penalties were due:
Over the period of incarceration, the defendant shall make
payments of either quarterly installments of a minimum of $25
if working non-UNICOR or a minimum of 50% of monthly earnings
if working UNICOR. It is recommended that the defendant
participate in the Inmate Financial Responsibility Program
Payments of not less that $50 per month are to be made over a
period of 5 years commencing 30 days after release from
28, 2012, Kay appealed his sentence. See Notice of
Appeal [Docket No. 183]. The Eighth Circuit affirmed
Kay's sentence and $300, 000 restitution award, but
vacated and remanded the $500, 000 fine because the record
did not include the required evidentiary support on Kay's
ability to pay. United States v. Kay, 717 F.3d 659,
666 (8th Cir. 2013). After receiving the Eighth Circuit's
decision, the Government stated that it intended to schedule
a status conference with the Court regarding the fine. The
record does not reflect that any status conference was held.
two years later, an Amended Sentencing Judgment [Docket No.
273] was entered on March 12, 2015 to reflect that the $300,
000 restitution amount was due joint and severally with
Kay's sister, Michelle Marie Kay, who was sentenced on
March 12, 2015 for aiding and abetting interstate
transportation of stolen goods. See United States v.
Kay, No. 14-cr-0070. Because the issue of vacating the
fine in the Judgment was apparently not addressed after the
Eighth Circuit's decision, the Amended Sentencing
Judgment also included the $500, 000 fine.
April 8, 2016, the Government wrote a letter to Kay
explaining that the Federal Debt Collection Procedures Act
(“FDCPA”) authorized the Government to force
immediate payment of the total amount of his criminal
monetary penalties. See Scott Decl. [Docket No. 322]
Ex. A. The letter further provided that if payment in full
was not received within 20 days, the Government would be