United States District Court, D. Minnesota
Voss, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.
Alan Mitchell, pro se.
Patrick J. Schiltz United States District Judge
Rory Mitchell pleaded guilty to two counts of bank robbery
and was sentenced to 151 months in prison. ECF No. 29 at 1-2.
As part of his sentence, the Court ordered Mitchell to pay a
$200 special assessment and $40, 985 in restitution.
Id. at 5. The Court further ordered that payment was
due immediately, but also set up a payment plan. Id.
at 6; ECF No. 39 at 16-17 (sentencing transcript).
Specifically, the Court ordered Mitchell to make quarterly
payments of $25 during the term of his imprisonment and,
after his release, monthly payments of at least
$200. ECF No. 29 at 6. According to the
government, Mitchell, who is currently incarcerated and due
to be released in April 2025, has paid the special assessment
in full and made $1, 807.23 in payments toward his
restitution obligation. ECF No. 49 ¶¶ 3-4. In other
words, not only is Mitchell in compliance with the payment
plan, but he has been making additional payments.
the government became aware that Mitchell has approximately
$8, 900 in his inmate trust account. ECF No. 57 ¶ 4.
Accordingly, the government moves for an order authorizing
the Bureau of Prisons (“BOP”) to turn over all
but $300 of the funds in the trust account to the Clerk of
Court to be applied to Mitchell's remaining restitution
response to the government's motion, Mitchell explains
that $7, 000 of the amount in his trust account was entrusted
to him by a third party for the purpose of hiring an attorney
to pursue post-conviction remedies on Mitchell's behalf.
Both Mitchell and the third party-credibly, under oath, and
with supporting documentation-assert that the money belongs
to the third party and is only intended to pay for counsel;
any amount not used for that purpose must be returned to the
third party. Mitchell further explains that the balance of
the account consists of money he has put aside at the
encouragement of prison officials toward his eventual release
(with a small portion reserved for his living expenses in
prison). See, e.g., ECF No. 57-1 at 9-10, 15.
Accordingly, Mitchell asks that the government's motion
be denied and that the BOP be ordered to remove the hold on
speaking, the government has the authority to enforce
restitution orders “in accordance with the practices
and procedures for the enforcement of a civil judgment under
Federal law or State law.” 18 U.S.C. § 3613(a),
(f); 18 U.S.C. § 3664(m)(1)(A)(i). In addition to such
practices and procedures, the government may enforce a
restitution order “by all other available and
reasonable means.” 18 U.S.C. § 3664(m)(1)(A)(ii).
Upon entry of a judgment including a restitution order, a
lien arises in favor of the United States on all of the
defendant's property and rights to property to the same
extent “as if the liability . . . were a liability for
a tax assessed under the Internal Revenue Code of
1986.” 18 U.S.C. § 3613(c).
case, the government relies on 18 U.S.C. § 3664(n) as
the source of the Court's authority to order the BOP to
turn over the funds in Mitchell's trust account. That
provision states that an incarcerated defendant who
“receives substantial resources from any source,
including inheritance, settlement, or other judgment, ”
must be “required to apply the value of such resources
to any restitution . . . still owed.” The government
also cites 18 U.S.C. § 3664(k), which authorizes a
court, in the interests of justice, to adjust a
defendant's payment schedule or require immediate payment
in full upon notification of “any material change in
the defendant's economic circumstances that might affect
the defendant's ability to pay restitution.”
courts have authorized relief by motion similar to the relief
sought by the government here. See United States v.
Lemberger, 673 F. App'x 579 (7th Cir. 2017)
(affirming district court's order authorizing funds to be
seized from the defendant's trust account). In this case,
however, a third party claims an interest in the bulk of the
funds sought by the government. In addition, setting those
disputed funds aside, it does not appear to the Court that
the remainder of Mitchell's savings represent
“substantial resources” within the meaning of
similar case involving third parties who claimed an interest
in a large settlement paid to a criminal defendant, the
Eighth Circuit reversed the district court's order
requiring the defendant to apply the funds to his restitution
amount, noting that it was “troubled by the district
court's summary disposition of the payment issue.”
United States v. Yielding, 657 F.3d 722, 728 (8th
Cir. 2011). The Eighth Circuit further faulted the district
court for failing to resolve the issue of ownership of the
funds, noting that the defendant “may not be ordered to
apply the settlement proceeds to his restitution debt simply
because the funds are ‘available' to him. He must
be the owner; it must be his money.”
Id. at 728-29 (emphasis in original).
motion, the government stated that it was unaware of any
third party who may claim an interest in the funds. The
government has not filed any response to Mitchell's
objection and therefore has not explained how it could
prevail in the face of the third party's claim to the
bulk of the funds. In addition, as noted, the Court is not
inclined to view the remaining funds as “substantial
resources” that must be applied to restitution under
§ 3664(n), particularly in light of the fact that
Mitchell is fully in compliance with his payment schedule and
in fact has been making additional payments. The Court will
therefore deny the government's motion and order the BOP
to release its hold on the funds. The Court suggests to
Mitchell that he may want to return the funds to the third
party and, if he does retain counsel, ask her to pay that
counsel directly. This may avoid further complications.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT:
government's motion to authorize payment from defendant
Rory Alan Mitchell's inmate ...