United States District Court, W.D. Louisiana, Shreveport Division
L. Hornsby U.S. Magistrate Judge.
a former manager of Explo Systems, Inc., pleaded guilty to
making a false statement under 18 U.S.C. § 1001. He was
sentenced to 45 months imprisonment and ordered to pay
restitution in the amount of $149, 032.80.
effort to enforce the restitution order, the Government
issued a Writ of Continuing Garnishment (Doc. 282) to Teacher
Retirement System of Texas seeking seizure of 25% of the
“nonexempt disposable retirement income of Resie Wilson
Lampkin, ” the spouse of Defendant.
Teacher Retirement System of Texas filed an Answer (Doc. 293)
stating that it has custody, control, or possession of a
retirement account in Ms. Lampkin’s name from which Ms.
Lampkin, a retiree, receives a gross monthly annuity of $3,
867.40. Doc. 293, ¶ 3. The Answer also states that Ms.
Lampkin retired on May 31, 2012 and married Defendant on or
about September 27, 2014. The answer requests that the court
require the Government to establish Defendant’s
interest in the retirement benefits that accrued to Ms.
Lampkin before her marriage to Defendant. The answer concedes
that, if Defendant has a valid interest in the retirement
benefits, the distribution made to Ms. Lampkin are
“earnings” as defined in 15 U.S.C. § 1672(a)
and are subject to the 25% garnishment cap pursuant to the
Consumer Credit Protection Act, 15 U.S.C. § 1673(a)(1).
Lampkin filed a Motion to Quash Writ of Garnishment (Doc.
299), which is currently before the court. Ms. Lampkin argues
that her retirement benefits are entirely her separate
property, having been earned by her over many years before
she ever knew Defendant.
law provides that an order of restitution can be enforced by
the Government in the manner provided for in the Mandatory
Victims Restitution Act (“MVRA”). 18 U.S.C.
§§ 3611-3615. The MVRA permits the Government,
“notwithstanding any other federal law, to enforce a
restitution order ‘against all property or rights to
property of the person fined’” with only limited
exceptions. United States v. DeCay, 620 F.3d 534,
539 (5th Cir. 2010). This right of garnishment applies to
monthly pension benefits. Id.
the MVRA, a restitution order is a lien in favor of the
Government as if the liability of the person fined were a
liability for a tax. 18 U.S.C. § 3613(c). Any property
that may be garnished to satisfy a tax lien may, therefore,
be garnished to satisfy a restitution order. United
States v. Banks, 2013 WL 357823 (M.D. Tex. 2013). And
“state law exemptions are not effective against the
United States” with respect to tax lie .2d 832, 833-34
(5th Cir. 1989).
court finds that the monthly annuity received by Ms. Lampkin
from the Teachers Retirement System is community property
subject to the Government’s garnishment even though the
retirement account itself is Ms. Lampkin’s separate
property. Louisiana Civil Code Art. 2339 provides:
The natural and civil fruits of the separate property of a
spouse, minerals produced from or attributable to a separate
asset, and bonuses, delay rentals, royalties, and shut-in
payments arising from mineral leases are community property.
Nevertheless, a spouse may reserve them as his separate
property as provided in this Article.
A spouse may reserve them as his separate property by a
declaration made in an authentic act or in an act under
private signature duly acknowledged. A copy of the
declaration shall be provided to the other spouse prior to
filing of the declaration.
As to the fruits and revenues of immovables, the declaration
is effective when a copy is provided to the other spouse and
the declaration is filed for registry in the conveyance
records of the parish in which the immovable property is
located. As to fruits of movables, the declaration is
effective when a copy is provided to the other spouse and the
declaration is ...