United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE.
MEMORANDUM RULING & ORDER
E. WALTER UNITED STATES DISTRICT JUDGE.
the Court is an Appeal [Doc. #81] of the Magistrate
Judge's Garnishee Order [Doc. #77]. The Government has
filed a response in opposition [Doc. #84]. For the reasons
that follow, the appeal is denied; the garnishee order [Doc.
#77] is affirmed and remains in full force and effect.
September 17, 1999, Defendant John R. Cooke pled guilty to a
one-count bill of information, charging bank fraud, in
violation of 18 U.S.C. §§ 1344 and 2. [Docs.
##1-6]. On December 22, 1999, this Court sentenced Defendant
Cooke to 36 months of imprisonment, to run concurrent with a
sentence imposed in the Southern District of Mississippi,
followed by five (5) years of supervised release. [Doc. #14');">14].
Defendant Cooke was further ordered to pay restitution
jointly and severally to Deposit Guaranty National Bank, in
the amount of $1, 997, 243.53, and St. Paul Fire & Marine
Insurance Company, in the amount of $2, 847, 000.00. [Doc.
#14');">14, p. 4]. The schedule of restitution payments has been
modified several times since its institution, with the
monthly installment rate varying between 10% and 20% of
Defendant Cooke's monthly gross income. [Docs. ##14');">14, p.
4; 21; 23; 27; and 29].
4, 2007, supervision was terminated, while Defendant Cooke
remained obligated to pay restitution in monthly installments
at a rate of no less than 10% of his monthly gross income.
[Doc. #29]. Beginning in August 2008, in response to
Defendant Cooke's failure to pay restitution as directed,
the Government sought to collect the outstanding restitution
debt via garnishment proceedings, and supervised release was
allowed to expire entirely. [Doc. #42; see also
Docs. ##30-41]. In November 2008, a garnishee order was
issued, directed at Colt International, LLC, and its
successors or assigns, ordering garnishment of the lesser of
10% of disposable earnings or all amounts of disposable
earnings in excess of thirty times the federal minimum wage.
[Doc. #41]. The Government points out that, once supervision
terminated, Defendant Cooke stopped making voluntary
restitution payments. [Doc. #75-1, p. 2].
2017, the Government filed new applications for writs of
continuing garnishment. [Docs. ##43, 44, 47, 49, and 57]. The
writs were issued. [Docs. ##45, 46, 48, 50, and 58]. Pursuant
to the clerk's notices of post-judgment garnishment
[Docs. ##45-1, 46-1, 48-1, and 50-1], Defendant Cooke filed
motions for hearings on the writs of continuing garnishment
and sought to have this matter transferred to the Southern
District of Texas, where he resides. [Docs. ##60-63]. Prior
to this appeal being filed, a hearing on those motions was
set before Magistrate Judge Hornsby for August 7, 2017, in
Shreveport, Louisiana. [Docs. ##76, 78]. However, in light of
the pending appeal, the hearing was upset. [Doc. #85].
30, 2017, upon motion by the Government [Doc. #75],
Magistrate Judge Hornsby signed a garnishee order, naming
World Fuel Service, as Defendant Cooke's current
employer, and successor or assign of Colt International, LLC,
and modifying the previous garnishee order from “the
lesser of 10% percent of his disposable earnings or all
amounts of disposable earnings in excess of thirty times the
federal minimum wage, whichever is less, to 25% of his
disposable earnings.” [Doc. #77 (emphasis in original),
modifying Doc. #41].[1" name="FN1" id=
"FN1">1] In support of its motion for the
modification, the Government provided Defendant Cooke's
payment history and financial records, indicating both his
ability to pay and his past failure to do so. [Docs. ##75-1,
75-2, 75-3]. The instant appeal challenges that garnishee
order and the modification made therein, increasing the
garnishment from 10% to 25% of Cooke's disposable
Government points out, the Fifth Circuit has recognized that
The MVRA provides the Government authority to enforce victim
restitution orders in the same manner that it recovers fines
and by all other available means. 18 U.S.C. §
3664(m)(1)(A)(i)-(ii) (2000). The Government is authorized
under 18 U.S.C. § 3613(a) (2000) to collect criminal
fines and restitution “in accordance with the practices
and procedures for the enforcement of a civil judgment under
Federal law or State law.” The federal law that
provides the practices and procedures for the enforcement of
a civil judgment is the [Federal Debt Collection Procedures
Act (“FDCPA”)]. 28 U.S.C. §§ 3001-3308
United States v. Phillips, 303 F.3d 548, 550-51 (5th
Cir. 2002). Under the FDCPA, “[t]he court may at any
time on its own initiative or the motion of any interested
person, and after such notice as it may require, make an
order denying, limiting, conditioning, regulating, extending,
or modifying the use of any enforcement procedure under this
chapter.” 28 U.S.C. § 3013. Pursuant to that
authority, and on the basis of the showing made by the
Government [Doc. #75], the magistrate judge appropriately
modified the previously-issued, November 2008 garnishee
order, and did so in accordance with the applicable
limitations, i.e. 25% cap, set forth in the Credit
Consumer Protection Act (“CCPA”), 15 U.S.C.
instant appeal, Defendant Cooke argues that the garnishee
order was inappropriately issued, exparte, after a
timely request was made for a hearing regarding the transfer
of this matter to the district in which Cooke resides.
Despite this appeal allegedly challenging the garnishee
order, Cooke has failed to provide any basis upon
which this Court might find that the garnishee order allows
the Government to exceed its authority to collect on the
outstanding restitution judgment or that the order itself is
legally improper. Defendant Cooke remains obligated to pay a
significant sum of money, and the Government has shown,
pursuant to 18 U.S.C. § 3664(k), that this defendant has
the ability to make payments towards that obligation,
[see Docs. ##75-1, 75-2, 75-3; and Doc. #84, pp.
7-8]. The Government is not only entitled to enforce that
obligation, it is also required to do so. See
Phillips, 303 F.3d at 551. Regarding Cooke's
challenge to the allegedly exparte nature of the
Government's motion, the Court is satisfied that the
Government met or exceeded its obligations to provide notice
of the motion to ...