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
Amend Order Authorizing Payment from Inmate Trust Account,
ECF No. 52, filed September 17, 2019. The Court previously
granted the Government's Motion to Authorize Payment from
Inmate Trust Account, ECF No. 49, filed on August 12, 2019.
United States v. Jones, No. 8:02CR156, 2019 WL
4141060 (D. Neb. Aug. 29, 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 restitution account.
IT IS ORDERED:
Motion to Amend Order Authorizing Payment from Inmate Trust
Account is granted;
Bureau of Prisons shall turn over $38, 046.07, 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 ...