United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANT'S LETTER MOTION TO AMEND
JUDGMENT (DKT. NO. 60), AND CLARIFYING JUDGMENT REGARDING
PAYMENT OF SPECIAL ASSESSMENT
PAMELA PEPPER United States District Judge.
9, 2017, the court sentenced the defendant after a jury
convicted her of one count of conspiring to obtain payments
for false claims in violation of 18 U.S.C. §286 and
thirteen counts of preparing false tax returns in violation
of 18 U.S.C. §§2 and 287. Dkt. Nos. 53, 55. As part
of that sentence, the court imposed a special assessment of
$1, 400-$100 for each of the fourteen counts of conviction.
Dkt. No. 53 at 5. The court also ordered the defendant to pay
restitution of $143, 016, and ordered that she owed $10, 412
of that amount jointly and severally with co-conspirator
Marcel Davis. Id.
6 of the judgment, the court ordered that the defendant had
to pay these financial obligations “in equal monthly
installments of not less than $50.00 until paid in full, to
commence 30 days after release from imprisonment to a term of
supervision . . . .” Id. at 6. To the court,
that language clearly indicates that the defendant was
not obligated to start making special assessment or
restitution payments until thirty days after she is released
from custody. The court did not intend the defendant to begin
making either the special assessment payments or the
restitution payments while she was in custody.
defendant has written the court a letter, however, indicating
that at her six-month review with her case manager and
counselor, “it was brought to [her] attention”
that she was responsible for paying “the Financial
Resp. Participants which is $100 per count.” Dkt. No.
60 at 3. She indicates that in her case, this comes to $1,
400. She says that she had been paying $32 every three months
against this obligation (which she could afford), but that
now she's been “asked to pay $200.00 dollars every
three-months which is not feasible at this time.”
Id. She says that her counselor told her that it
“wasn't clear or specific” in the judgment
how and when she was to pay the $1, 400, and therefore that
the Bureau of Prisons is “authorized to sanction [her]
to pay any amount at any time over $50.00 per month.”
Id. She asks the court to revise the judgment and
“be specific as possible for [her] to pay upon [her]
release or continue to pay $32.00 every three-months.”
defendant does not say that the $1, 400 amount is for her
special assessment, but the court assumes that it is. If the
Bureau of Prisons has been requiring the defendant to pay $32
every three months toward that special assessment, it should
not have been doing so. The court specifically marked the box
on the judgment form stating that the defendant should start
paying the special assessment and the restitution thirty days
after she is released from custody to supervision,
and then at a rate of $50 per month. The court does not know
why that would not be clear from the judgment.
sentencing courts order a defendant to pay the special
assessment immediately. See, e.g., In re Buddhi, 658
F.3d 740, 741-42 (7th Cir. 20110). There is a box on the
judgment form that the court can check if that is what the
court intends. It is the first box on the “Schedule of
Payments” page-Box A. It says, “Lump sum payment
of $ due immediately.” If a court checks that box, the
special assessment (and any other penalty the court may
impose) is due immediately. If the inmate cannot pay
immediately, she can work with prison staff under the Inmate
Financial Responsibility Program to develop a financial plan
to pay it while in custody.
귫⦢笢温抷⾩꺈⭪. In the defendant's case,
however, the court did not check that box.
is also a box on the judgment form-Box C-that a court may
check if it wants a defendant to pay financial obligations
out of her prison earnings. That box says, “Payment in
equal monthly installments of not less than $ or 10% of the
defendant's net earnings, whichever is greater, until
paid in full, to commence 30 days after the date of this
judgment.” If a court checks that box, the defendant
must make monthly payments against her financial obligations
while she is in custody, either in the amount specified by
the court or at 10% of her net earnings, whichever amount is
greater. In the defendant's case, the court did not check
that box, either.
defendant's case, the court chose Box D, which does not
require the defendant to start making payments against
any of her financial obligations until thirty days
after she is released from custody into supervision. The
court selected that option for a reason. Because the jury
convicted the defendant on fourteen counts, her special
assessment is significant-$1, 400. She also is responsible
for a large amount of restitution. Given the incarceration
sentence the court imposed (twenty-four months), the
court's expectation that the defendant would earn some
time off for good behavior and the court's assumption
that the defendant would not earn significant wages while
serving that time, the court elected to allow the defendant
to defer making payments against her financial
obligations-including the special assessment-until after her
release from incarceration.
the Inmate Financial Responsibility Program, inmates are
supposed to work with prison staff at the time of intake to
develop financial plans. If a defendant wants to start paying
financial obligations sooner that the judgment requires, the
court suspects that the Bureau of Prisons would allow her to
do so. The court speculates that it is possible that there is
a misunderstanding on the defendant's part-perhaps she
chose to start paying her obligations early when she
had her initial financial plan development meeting with
institution staff, not realizing that the court had not
ordered her to start paying while in custody.
defendant's letter makes it sound as if the institution
has interpreted the judgment to require the defendant to pay
while she is in custody. If so, the institution has
incorrectly interpreted the judgment, and the court's
intentions. The court does not know how it could have made
its intentions more clear, but it will do so in this order.
The court did not intend, and the judgment does not require,
the defendant to make payments against the $1, 400 special
assessment or the restitution while she is in custody. The
court intended, and the judgment requires, the defendant to
begin paying the $1, 400 special assessment and the
restitution, with payments being applied in the order
specified at the very bottom of page 6 of the judgment,
thirty days after she is released from custody into
supervision. In addition to this order, the court will add
language to the judgment to try to make this clear.
defendant also asks the court to revise the judgment to order
that the full restitution amount is a joint and several
obligation with “the Co-conspirators.” Dkt. No.
60 at 4. The court will grant that request.
court notes first, however, that the defendant appears to
believe that she owes $148, 000, and that she also will owe
“tax” on that amount. Id. The judgment
says that the defendant owes $143, 016, some five thousand
dollars less than what she appears to believe she owes. While
$143, 016 is still a lot of money, the court wants the
defendant to be clear on her obligation.
the court did order that part of that
restitution is a joint obligation. The order of judgment says
that $10, 412 of that amount is a joint obligation with
Marcel Davis. The reason the judgment says that is because
the government provided probation and the court with
information at sentencing, indicating that Marcel Davis
worked with the defendant to prepare some of the tax returns
that generated that amount of refund money.
court suspects that by “co-conspirators, ” the
defendant means the other individuals mentioned at her trial.
There was a good deal of testimony that the defendant worked
with La Tanya Ghee in preparing false returns. The government
charged La Tanya Ghee with tax fraud; she pled guilty, and as
part of her sentence, the court ordered Ghee to pay
restitution of $84, 734 “jointly and severally with
Paula Forbes, less any amount already paid.” United
States v. Ghee, 17-cr-40-pp, dkt. no. 19 at 5. There was
also testimony at the defendant's trial about a woman
named Vickie Price. The government charged Price, who pled
guilty; the court ordered her to pay $331, 481 in
restitution. United States v. Vickie Price,
16-cr-61-pp. The government, however, did not provide the
court with information indicating that ...