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United States v. Kay

United States District Court, D. Minnesota

March 3, 2017

United States of America, Plaintiff,
v.
Richard Allen Kay, Defendant.

          Erin M. Secord, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff.

          Richard Allen Kay, pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         II.BACKGROUND

         Kay was 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].

         After 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.[1] It is recommended that the defendant participate in the Inmate Financial Responsibility Program while incarcerated.
Payments of not less that $50 per month are to be made over a period of 5 years commencing 30 days after release from confinement.

Id.

         On June 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.

         Nearly 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.

         On 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 ...


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