United States District Court, District of Columbia
A. HOWELL Chief Judge.
before the Court is the government's motion for
reconsideration, Gov't's Mot. Reconsideration Mem.
Opinion & Order Def's Mot. Quash Writ of Garnishment
("Gov't's Mot."), ECF No. 57, of the
decision granting the defendant's motion to quash the
government's writ of garnishment as to certain retirement
and brokerage accounts belonging to the defendant, see
United States v. Villongco, C™- Action No. 07-9
(BAH), 2016 WL 3747508 (D.D.C. July 11, 2016). The government
continues to press its entitlement to accelerate the
defendant's payment of restitution by garnishing his
retirement and brokerage accounts, notwithstanding a payment
schedule ordered by the sentencing Court, who was apprised at
the time of sentencing of the funds now targeted for
garnishment. For the reasons set forth below, the
government's motion is denied.
factual background of this case is set out in this
Court's prior memorandum opinion regarding the
defendant's Motion to Quash the Writ of Continuing
Non-Wage Garnishment ("Def's Mot. Quash"), ECF
No. 46, which is fully incorporated here. See
Villongco, 2016 WL 3747508, at *l-*3. In brief, the
defendant was convicted in 2008 of conspiracy to defraud the
government and mail fraud, in violation of 18 U.S.C.
§§ 286 and 1341, for his part in a scheme to
misappropriate funds from the Export-Import Bank of the
United States. See Judgment and Commitment Order at
1, ECF No. 33; Statement of Offense at 1, ECF No. 11.
Pursuant to the Mandatory Victims Restitution Act of 1996
("MVRA"), the Judgment and Commitment Order
provided that the defendant owed restitution in a total
amount of "$14, 284, 652.78, to be paid jointly and
severally with [defendant's] accomplices with credit to
the defendant for amount already paid, " and that the
defendant "shall pay the balance of any restitution owed
at a rate of no less than $500.00 each month." Judgment
and Commitment Order at 5-6. The defendant himself obtained
only $150, 000 from the scheme, which he forfeited pursuant
to his plea agreement prior to sentencing. See
Consent Order of Forfeiture, ECF No. 6.
eight years later, on March 4, 2016, the government filed an
application for a writ of garnishment, seeking any property
belonging to the defendant within the possession of Fidelity
Investments. See Appl. Writ Continuing Non-Wage
Garnishment, ECF No. 40. A 4Ol(k) retirement savings account
with Fidelity Investments, having a value of at least $300,
000, was known to the sentencing Court at the time the
Judgment and Commitment Order was entered. See
Presentence Investigation Report, dated Feb 29, 2008,
¶¶ 64-64a, ECF No. 51. In a letter dated April 19,
2016, which was construed as a motion to quash, the defendant
requested that the Court "rescind this collection effort
and procedure" because "[t]here is no judgment
that [his] financial accounts be garnished." Def's
Mot. Quash at 1. Prior to issuing its decision on the
defendant's motion, the Court requested that the
government, within two weeks, respond to the defendant's
motion and "address the legal issues raised by"
three circuit court cases: 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 Cir. 2007).
See Min. Order, dated May 9, 2016 (citing Min.
Order, dated May 5, 2016). In response, the government
submitted a six-page memorandum opposing the defendant's
motion, addressing the three appellate cases expressly
identified by the Court in a single page. See
Gov't's Mem. Opp'n Def.'s Mot. Quash Writ
Garnishment ("Gov't's Opp'n Def.'s
Mot"), ECF No. 49.
on the defendant's motion, the government's
opposition, the record in this matter, and the relevant
authorities, including analysis of the three appellate cases
referenced in the Court's prior Minute Order, the
defendant's motion to quash was granted. See
Order, dated July 11, 2016, ECF No. 54. The decision to grant
the defendant's motion rests primarily upon two legal
conclusions. First, although the MVRA contains "general
enforcement provisions" mandating that restitution be
ordered in the full amount of the victim's damages and
permitting the government to enforce a restitution order
using a variety of means, the statute also limits the
government to the "specific terms of the restitution
order, " including any "payment schedule
imposed" by the Court, in seeking enforcement of such an
order. See Villongco, 2016 WL 3747508, at *7-*8.
Second, in this case, the government may collect only the
amounts specified in the restitution order's payment
schedule, notwithstanding both the Order's direction that
payment shall be made "at a rate of no less than $500
each month" and the sentencing Court's oral
pronouncement that restitution was "immediately payable,
" because that language fails to manifest an intent to
require the defendant to pay the full amount of restitution
immediately. Id. at *8-*9.
August 8, 2016, the government timely filed a motion for
reconsideration of the Court's decision, pursuant to
Fed.R.Civ.P. 59(e). See Gov't's Mot. at 1.
The defendant obtained pro bono counsel to represent
him for purposes of the motion for reconsideration,
see Def.'s Not. Entry Appearance & Mot.
Extension Time, ECF No. 58, and filed his response on October
28, 2016, see Def.'s Resp. Gov't's Mot.
Recons. ("Def.'s Resp."), ECF No.
The government's motion for reconsideration is now ripe
the Federal Rules of Civil Procedure, neither the Federal
Rules of Criminal Procedure nor the Local Criminal Rules for
this district provide for motions for reconsideration."
United States v. Bagcho, No. CR 06-00334 (ESH), 2017
WL 27925, at *2 (D.D.C. Jan. 3, 2017) (citations omitted).
Nevertheless, "the Supreme Court has recognized, in
dicta, the utility of such motions, " and
"at least two Circuits have explicitly held . . . that
motions for reconsideration may properly be considered in
criminal cases." United States v. Ferguson, 574
F.Supp.2d 111, 113 (D.D.C. 2008) (citing United States v.
Dieter, 429 US. 6 (1976); United States v. Healy,
376 U.S. 75, 80 (1964); United States v.
Fiorelli, 337 F.3d 282, 286 (3d Cir. 2003); United
States v. Clark, 984 F.2d 31, 33-34 (2d Cir. 1993)).
Accordingly, "judges in this district have assumed,
without deciding, that they may consider motions for
reconsideration in criminal cases." Bagcho,
2017 WL 27925, at *2 (citing United States v.
Cooper, 947F.Supp.2d 108, 109 (D.D.C. 2013); United
States v. Hong Vo, 978 F.Supp.2d 41, 47 (D.D.C. 2013);
and United States v. Cabrera, 699F. Supp. 2d 35, 40
in this district have applied the standard contained in Rule
59(e) of the Federal Rules of Civil Procedure to motions for
reconsideration of final orders in criminal cases."
Hong Vo, 978 F.Supp.2d at 47 (distinguishing the
legal standard applicable to motions for reconsideration
concerning final orders from that concerning interlocutory
orders) (citations omitted); see also Ferguson, 574
F.Supp.2d at 113 (based on the dicta in Dieter, 429
U.S. at 8, "the [c]ourt. . . proceed[ed] on the
assumption that it may consider ... [a] motion for
reconsideration" and applied the Fed.R.Civ.P. 59(e)
standard of review). Notably, "[m]otions under FED. R.
Civ. P. 59(e) are disfavored and relief from judgment is
granted only when the moving party establishes extraordinary
circumstances." Niedermeier v. Office of
Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001) (citation
omitted). To prevail, the government "must demonstrate
that (1) there has been an intervening change in controlling
law; (2) there is new evidence; or (3) there is a need to
correct clear error or prevent manifest injustice."
Ferguson, 574 F.Supp.2d at 113 (citation omitted);
see also Firestone v. Firestone, 76 F.3d 1205, 1208
(DC. Cir. 1996) ("A Rule 59(e) motion 'is
discretionary' and need not be granted unless the
district court finds that there is an 'intervening change
of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice.'" (quoting Nat'l Trust v. Dep
't of State, 834 F.Supp. 453, 455 (D.D.C. 1993),
off 'din part and rev'din part on other grounds
sub nom. Sheridan Kalorama Historical Ass 'n v.
Christopher, 49F.3d 750 (D.C. Cir. 1995))).
a demonstrated intervening change of controlling law or new
evidence, the law is well-settled that litigants may not use
Rule 59(e) either to repeat unsuccessful arguments or to
assert new but previously available arguments."
Smith v. Lynch, 115 F.Supp.3d 5, 11 (D.D.C. 2015)
(citing Exxon Shipping Co. v. Baker, 554 U.S. 471,
485 n.5 (2008) ("Rule 59(e) permits a court to alter or
amend a judgment, but it 'may not be used to relitigate
old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of
judgment.'" (quoting 11 C. WRIGHT & A. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 2810.1, pp. 127-28 (2d
ed. 1995) (footnotes omitted)))). Additionally, with regard
to "clear error" under Rule 59(e), courts have
imposed a "very exacting standard, " Bond v.
U.S. Dep't of Justice, 286 F.R.D. 16, 22 (D.D.C.
2012), aff'd, No. 12-5296, 2013 WL 1187396 (D.C.
Cir. Mar. 14, 2013) (quoting Lightfoot v. District of
Columbia, 355 F.Supp.2d 414, 422 (D.D.C. 2005)). The
"final judgment must be dead wrong to constitute clear
error." Lardner v. FBI, 875 F.Supp.2d 49, 53
(D.D.C. 2012) (internal quotation marks omitted) (quoting
Parts & Elec. Motors, Inc. v. Sterling Elec,
Inc., 866 F.2d 228, 233 (7th Cir. 1988)). Similarly,
"it is clear that 'manifest injustice' is an
exceptionally narrow concept in the context of a Rule 59(e)
motion, " Slate v. Am. Broad. Cos., 12
F.Supp.3d 30, 35 (D.D.C. 2013), and, thus, "must entail
more than just a clear and certain prejudice to the moving
party, but also a result that is fundamentally unfair in
light of governing law." Id. at 35-36; cf.
Associated Gen. Contractors of Cal, Inc. v. Cal. State.
Council of Carpenters, 459U.S. 519, 536 (1983)
("[T]he judicial remedy cannot encompass every
conceivable harm that can be traced to alleged
government does not assert any intervening change in
controlling law, nor does it present any new evidence.
See generally Gov't's Mem. Supp. Mot.
Reconsideration of Mem. Opinion & Order Def's Mot.
Quash Writ of Garnishment ("Gov't's Mem."),
ECF No. 57-1. Accordingly, the motion for reconsideration can
be granted only if the government has established the
"need to correct a clear error or prevent manifest
injustice." Firestone, 76 F.3d at 1208.
urging that reconsideration is warranted under this standard,
the government has submitted a brief more than five times the
length of its original opposition, raising two principal
arguments regarding the scope of the government's powers
under the MVRA and under the specific terms of the
restitution order at issue to ...