United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge
matter is before the Court on the Government’s Motion
to Authorize Payment from Inmate Trust Account, ECF No. 49,
filed on August 12, 2019. The Government certified that a
copy of the Motion was served on Defendant by regular mail at
David Alan Jones, #30987-013, Florence, CO 81226. The Motion
will be granted.
April 24, 2003, the Court entered judgment against Jones for
two counts of Bank Robbery under 18 U.S.C. § 2113(a) and
one count of Use of a Firearm under 18 U.S.C. §
924(c)(1)(A)(ii). J. at 1–2, ECF No. 46. Jones was
sentenced to 240 months incarceration to be followed by five
years of supervised release. Id. at 3–4. Jones
was also ordered to pay restitution in the amount of
$194,198.91 and a special assessment of $300. Id. at
5–8. The restitution and special assessment were
“due and payable immediately.” Id. at 8.
Jones was ordered to make payments of $100.00 per month
following his discharge from custody. Id. at 5.
Jones has been paying $25 per quarter towards restitution and
has an outstanding balance of $192,367.28.
Gov’t’s Mot. at ¶ 2, ECF No. 49.
Bureau of Prisons (BOP) has established inmate trust accounts
in order to “allow the Bureau to maintain
inmates’ monies while they are incarcerated.” 28
C.F.R. § 506.1. “Family, friends, or other sources
may deposit funds into these accounts.” Id.
The balance of Jones’s trust account is currently
$41,546.07. Gov’t’s Mot. at ¶ 4. The
Government now moves for an Order authorizing the BOP to turn
over to the Clerk of Court funds held in Jones’s trust
account as payment for the criminal monetary penalties
imposed in this case. Id. at 1.
Government seeks an Order authorizing the BOP to turn over
funds in Jones’s trust account to be applied to the
$192,367.28 outstanding restitution balance. The procedure by
which the Government may enforce criminal monetary penalties
is set forth by 18 U.S.C. § 3613. An order of
restitution is “a lien in favor of the United States on
all property and rights to property . . . .” 18 U.S.C.
§ 3613(c). Additionally, the Mandatory Victims
Restitution Act states that “[i]f a person obligated to
provide restitution, or pay a fine, receives substantial
resources from any source . . . during a period of
incarceration, such person shall be required to apply the
value of such resources to any restitution or fine still
owed.” 18 U.S.C. § 3664(n).
have found these statutes create a mechanism by which the
Government may request the turnover of funds from an inmate
trust account to be applied to restitution. United States
v. Poff, No. 16-30141, 2019 WL 3064444 (9th Cir. July
12, 2019) (holding that the mechanism was proper, but the
district court erred to the extent it disregarded the
defendant’s argument that prison wages were exempted
from the turnover mechanism); United States v. Rand,
924 F.3d 140 (5th Cir. 2019) (holding that the district court
did not abuse its discretion by turning over an inmate trust
account to the Government to be applied to restitution
without giving the inmate an opportunity to respond).
has not responded to this motion. The Government served
notice to Jones on August 12, 2019. The Eighth Circuit has
not addressed the due process owed to an inmate regarding a
turnover proceeding. However, the Fifth Circuit addressed the
issue in Rand. 924 F.3d at 144–45. The
Rand court determined that the “central
question [was] whether the response would have affected the
outcome of the district court’s decision.”
Id. at 145. The Fifth Circuit held that the district
court did not abuse its discretion by granting the
Government’s motion three days after it was made and
before the defendant had a chance to respond. Id.
Here, like in Rand, Jones is subject to an ongoing
lien due to his outstanding restitution. Jones’s inmate
trust account does not qualify as an exemption under 18
U.S.C. § 3613(a)(1). And the Government has the
authority to claim the funds and apply them to Jones’s
IT IS ORDERED:
Bureau of Prisons shall turn over $41,546.07, or such lesser
sum as may now be on deposit, from David Alan Jones’s
inmate trust account to the Clerk of this Court via check
payable to “United States District Court, District of
Nebraska,” referencing Case No. 8:02-cr-156-LSC and
delivered either personally or by First Class Mail to:
Clerk of the U.S. District Court 111 S. 18th
Plaza, Suite 1152 Omaha, Nebraska 68102-1322
the Bureau of Prisons may make the required payment to the
Clerk of Court within 30 days from the date of this Order via
electronic transfer in the manner that it makes ...