United States District Court, District of Columbia
A. HOWELL Chief Judge.
defendant David Villongco, who is proceeding pro se,
contests the government's effort to garnish funds in his
retirement and brokerage accounts in partial satisfaction of
the defendant's restitution obligation in the amount of
$14, 284, 852.78. Def's Mot. to Quash the Writ of
Continuing Non-Wage Garnishment, ECF No. 46 ("Def's
Mot."). This restitution obligation was ordered as
part of a criminal judgment entered against the defendant
over eight years ago, with directions that the restitution be
paid in monthly installments, with which payment schedule the
defendant has fully complied. Id. at 1.
Nevertheless, the government now seeks to garnish from the
garnishee, Fidelity Investments, four of the defendant's
accounts containing approximately $806, 536.52, as
"non-exempt disposable earnings in which the Defendant
has a substantial non-exempt interest." Appl. for Writ
of Continuing Non-Wage Garnishment ("Gov't's
Appl. for Writ"), at 1, ECF No. 40; Answer of Garnishee
("Answer"), ¶¶ 7, 9, ECF No. 42;
Supplemental Answer of the Garnishee ("Suppl.
Answer"), at 2, ECF No. 43. For the reasons discussed
below, the defendant's motion to quash is granted.
below is the relevant factual and procedural background of
this case. The Presentence Investigation Report
("PSR") prepared by the United States Probation
Office ("USPO") in connection with the
defendant's sentencing described the defendant's
"Financial Condition: Ability to Pay" and disclosed
that the defendant held, inter alia, the following
assets: (1) "a 401K retirement savings account with
Fidelity Investments" that "was established from
his former employment with Visa" and, as of January 28,
2008, had a balance of $376, 003.14, see PSR
¶¶ 64, 64a, ECF No. 51; (2) "another 40IK with
General Electric (GE), from his former employment with this
company, " which, "[a]s of December 2007, he
believes . . . had a total asset value of $120, 000, "
id. ¶ 64; and (3) "[a]s of December 2007,
" GE and Prudential stock with a value of $6, 134.00,
id. ¶ 65. After noting that the defendant must be
ordered to pay "full restitution to the victim without
consideration of the economic circumstances of the defendant,
" id. ¶ 96 (citing 18 U.S.C. §§
3663A(a)(l), (3)), the PSR advised that "[t]he Court may
order the defendant to make nominal periodic payments if the
Court finds from facts on the record that the economic
circumstances of the defendant do not allow the payment of
any amount of  restitution, ... in the foreseeable future
under any reasonable schedule of payments, "
id. (quoting 18 U.S.C. § 3664(f)(3)(B)).
sentencing hearing, in addition to concurrent terms of
imprisonment and supervised release on each of two counts of
conviction, the defendant was ordered to "pay
restitution totaling $14, 284, 652.78 jointly and severally
with [his] accomplices, with credit to [him] for amounts
already paid." Tr. of Sentencing Hr'g at 28:8-11,
(Feb. 29, 2008), ECF No. 52. The Court also issued
instructions regarding the timing and manner of the
restitution payments, ordering, first, that "[t]he
special assessment and restitution are immediately payable to
the clerk of this court, " and, second, that as a
special condition of supervised release, the defendant
"must pay the balance of any restitution owed at a rate
of no less than $500 each month and provide verification of
that payment to the probation office." Id. at
confused by the seemingly contrary directions about when
restitution payments became due-either
"immediately" or in installments while on
supervised release-, defense counsel raised the question of
when payments on the restitution obligation would begin,
asking, "does that begin upon release from custody and
is a condition of his supervised release or does that begin
now?" Id. at 31:16-17. The Court responded:
"No, the order I just entered required the beginning -
required the payment due immediately. You will certainly
probably need to work through with others how and - how much
to pay, when it starts, but certainly during the period of
incarceration, payments will have to come through the Inmate
Financial Responsibility Program. It's understandable
that there may end up being some limits on how much that can
be during that period of time, but the payments for the
restitution as well as the special assessments are due and
payable immediately." Id. at 31:18-32:1. The
Court continued, "[t]he fact is that, you know, payment
schedules end up getting worked out when people don't
have the full amount of all that's due and payable
immediately." Id. at 32:3-5.
Judgment and Commitment Order, entered on March 14, 2008,
generally reflects the sentence imposed at the earlier
hearing: the defendant was sentenced to concurrent terms of
thirty-three months of imprisonment and three-year terms of
supervised release on each of two counts, to which he pleaded
guilty, of conspiracy to defraud the Government and mail
fraud, in violation of 18 U.S.C. §§ 286 and 1341,
1342. Judgment and Commitment Order, ("J & C") at
1, ECF No. 33. The order directed the defendant, inter
alia, to pay "[restitution totaling $14, 284,
652.78 to be paid jointly and severally with your accomplices
with credit to the defendant for amount already paid, "
and to "pay the balance of any restitution owed at a
rate of no less than $500.00 each month and provide
verification of same to the Probation Office." J & C at
The order further required as "a condition of supervised
release that the defendant pay [a fine or restitution] in
accordance with the Schedule of Payments sheet of this
judgment, " id. at 3, and that the defendant
"notify the court and United States attorney of material
changes in economic circumstances, " id. at
Neither party objected to or appealed the sentence. See
generally Tr. of Sentencing Hr'g.
eight years later, on March 4, 2016, the government filed an
Application for Writ of Continuing Non-Wage Garnishment to
Fidelity Investments as to David Villongco, see
Gov't's Appl. for Writ, to which the garnishee,
Fidelity Investments, filed an answer, see Answer at
1. The garnishee explained that the defendant "is a
terminated participant in the General Electric Retirement
Savings Plan, " in which "the [defendant has an
account balance of $186, 456.02 as of March 15, 2016."
Answer ¶¶ 7, 9. Further, the defendant "is a
retired participant in the Visa 401(k) Plan, " in which
"the [defendant has an account balance of $405, 264[.]23
as of March 15, 2016." Id. The garnishee
subsequently supplemented this information identifying two
additional accounts of the defendant: a UC Individual
Brokerage Account in the amount of $2, 764.56, and a Rollover
Individual Retirement Account of the defendant in the amount
of $212, 051.71. Suppl. Answer at 2.
before the Court is the defendant's request that the
Court "rescind this collection effort or
procedure." Defi's Mot. at 1. The defendant states
that he has "been diligently paying [the amount of
$500.00 each month] ever since [he] was released."
Id. To demonstrate this compliance, he attached the
last three months of restitution payments. See
Def.'s Mot., Ex. 1 ("Financial Docs."), ECF No.
46-1. While not disputing the defendant's full compliance
with the restitution payment schedule both during and after
his now expired supervised release term, the government
opposes this motion. Gov't's Mem. Opp'n
Def.'s Mot. to Quash Writ of Garnishment
("Gov't's Opp'n"), ECF No. 49;
see Min. Order (May 9, 2016) (setting briefing
schedule and directing government to address in its
opposition: United States v. Hughes, 813 F.3d 1007
(D.C. Cir. 2016); United States v.
Martinez, 812 F.3d 1200 (10th Cir. 2015); and
United States v. Ekong, 518 F.3d 285 (5th
satisfy part of the remaining $13, 975, 907.08 owed on the
original $14, 284, 652.78 restitution order against the
defendant, Gov't's Appl. For Writ at 1, the
government seeks to garnish the defendant's Fidelity
Investments retirement and brokerage accounts, worth
approximately $806, 536.52. The defendant requests that the
garnishment be stopped for the straightforward reason that he
is in full compliance with the court-ordered restitution
payment schedule. Def's Mot. at 1. Essentially, the
defendant's position is that, absent any delinquency or
default in the restitution payments of $500.00 per month, the
government is not entitled to accelerate these payments by
garnishing funds in the targeted savings accounts. The
government's arguments supporting the garnishment and
opposing the motion to quash are analyzed after a review of
the statutory framework.
courts have authority to order restitution solely pursuant to
statute." United States v. Anderson, 545 F.3d
1072, 1077 (D.C. Cir. 2008) (citing United States v.
Bok, 156 F.3d 157, 166 (2d Cir. 1998)); see also
United States v. Gottesman, 122 F.3d 150, 151 (2d Cir.
1997) ('"Federal courts have no inherent power to
order restitution. Such authority must be conferred by
Congress through statute.'" (quoting United
States v. Helmsley, 941 F.2d 71, 101 (2d Cir.
1991))). In fact, there is a '"specific and detailed
[statutory] scheme addressing the issuance . . . of
restitution orders arising out of criminal
prosecution.'" Martinez, 812 F.3d at 1204
(quoting United States v. Wyss, 744 F.3d
1214, 1217 (10th Cir. 2014)).
principle restitution statutes applicable to defendants
convicted of federal crimes are the Victim Witness Protection
Act of 1982 ("VWPA"), 18 U.S.C. § 3663, and
the Mandatory Victims Restitution Act of 1996
("MVRA"), 18 U.S.C. §§ 3663A, 3664. These
two statutes share a number of parallel provisions, with the
primary distinctions being that the VWPA "provides
federal courts with discretionary authority to order
restitution to victims of most federal crimes, " while
the MVRA "requires restitution in certain federal cases
involving a subset of the crimes covered by the [VWPA].
(Recall that under the 1982 Act, restitution is
discretionary, not mandatory)." United States v.
Papagno, 639 F.3d 1093, 1096 (D.C. Cir. 2011). In
addition, unlike the VWPA, the MVRA "requires the court
to award full restitution regardless of the defendant's
financial circumstances, . . .; and gives victims a role in
the sentencing process." United States v.
Monzel, 641 F.3d 528, 543 (D.C. Cir. 2011) (citing
18 U.S.C. §§ 3664(d)(2), (f)(1)(A)). Set forth below
are the relevant provisions of the MVRA and the enforcement
provisions applicable here.
The Mandatory Victims Restitution Act of 1996
noted, the MVRA mandates that a defendant convicted of
certain enumerated offenses, "including any offense
committed by fraud or deceit, " be ordered to "make
restitution to the victim of the offense ..." 18 U.S.C.
§§ 3663A(a)(l), (c)(l)(A)(ii). The defendant's
convictions in this case, conspiracy to defraud the
government and mail fraud in violation of 18 U.S.C.
§§ 286, 1341, and 1342, are indisputably subject to
the MVRA. Under the MVRA, the court must: "(a) order the
full amount of restitution; (b) establish an initial payment
schedule that takes into consideration the defendant's
financial situation; and (c) respond to any change in the
defendant's economic condition by adjusting the
schedule." United States v. Scales, No.
14-10725, 2016 U.S. App. LEXIS 5179, at *14 (5th Cir. Mar.
computing the amount of restitution to be paid by the
defendant, the MVRA requires that restitution be ordered for
"each victim in the full amount of each victim's
losses as determined by the court and without consideration
of the economic circumstances of the defendant." 18
U.S.C. § 3664(f)(1)(A); see also 18 U.S.C.
§ 3663A(b) (providing guidance on calculating amount of
loss). The MVRA next requires the court to "specify in
the restitution order the manner in which, and the schedule
according to which, the restitution is to be paid, "
upon consideration of certain factors, such as "the
financial resources and other assets of the defendant, "
"projected earnings and other income of the defendant,
" and "any financial obligations to
dependents." 18 U.S.C. § 3664(f)(2). Thus, the
statute requires two distinct inquiries: first, the court
must ascertain and order the total amount of restitution no
matter the defendant's financial situation; and, second,
the court must direct the defendant to satisfy the
restitution obligation in a particular manner, a direction
predicated upon an evaluation of the defendant's
particular financial circumstances. While the MVRA thereby
cabins judicial discretion in setting the amount of
restitution to be paid by a defendant, the statute authorizes
broader flexibility ...