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United States v. Furkin

November 30, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HOWARD (TED) FURKIN AND DAVID LANZOTTI, DEFENDANTS,
PYRAMID TECHNOLOGIES, INC., GARNISHEE.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter is before the Court on Defendant Howard Furkin's Objection to Garnishment (d/e 988) and his Motion to Amend/Correct Supervised Release (d/e 991). On July 26, 2006, pursuant to 28 U.S.C. § 3205(c)(1), the Government filed an Application for Writ of Continuing Earnings Garnishment upon a Judgment entered against Defendant Furkin. Defendant filed his Objection to Garnishment on August 22, 2006. On September 12, 2006, the Court held a hearing by telephone conference regarding Defendant Furkin's Objection to Garnishment. At the hearing, Defendant objected to the garnishment, complaining that he is financially unable to make any more payments toward his restitution. Defendant has also filed a Motion asking the Court to amend the conditions of his supervised release. For the reasons set forth below, Defendant's Objection to Garnishment is sustained in part. The Government's Application for Writ of Continuing Earnings Garnishment is allowed to the extent that Garnishee Pyramid Technologies, Inc., or its authorized agent, is directed to withhold from the Defendant's nonexempt interest in the wages, salaries, commissions and/or bonuses the amount of $425.00 per month. Defendant's Motion to Amend/Correct Supervised Release is denied.

At the time Defendant was sentenced, the Court ordered Defendant to pay restitution in the amount of $2,149,388.00. The record reveals that Defendant made payments toward his restitution, and those payments have been credited to his account.*fn1 See Government's Accounting as to Howard Furkin (d/e 990). However, as of October 10, 2006, Defendant still owes $1,791,763.02 in restitution.

This Court may issue a writ of garnishment to enforce a judgment under Federal law. United States v. Laws, 352 F.Supp.2d 707, 710 (E.D.Va. 2004). Indeed, § 3205(a) of 28 U.S.C. provides that "[a] court may issue a writ of garnishment against property (including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor." 28 U.S.C. § 3205(a). "Accordingly, a writ of garnishment may be used to enforce an order of restitution pursuant to 18 U.S.C. § 3613." Laws, 352 F.Supp.2d at 710.*fn2

The record reveals that Defendant is currently making monthly payments of $125.00 toward his restitution.*fn3 If the Government garnishes Defendant's wages, Defendant Furkin would be required to make monthly payments of $579.00. The garnishment would therefore increase Defendant Furkin's monthly payments by $454.00. Defendant objects to garnishment complaining that he is financially unable to make larger monthly payments toward his restitution. At the telephonic conference held September 12, 2006, Defendant complained that if the Government garnishes 25 percent of his wages, he would be unable to purchase his medications and other necessary items. Defendant has submitted a written, sworn statement, concerning his current medical expenses and other necessary expenses. According to this submission, Defendant nets $2,356.28 a month, with monthly estimated expenses of $2,318.00.

Based on the documents submitted by Defendant Furkin, a breakdown of Defendant Furkin's monthly expenses is as follows: Rent ($800); Food ($200); Sundries/Toiletries ($50); Telephone ($65); Auto Payments ($228); Auto Expenses ($145); Auto Insurance ($93); Dues and Subscriptions ($52); Clothing ($80); Grooming ($40); Medical ($200); Dental ($100); Postage ($10); Home Office Supplies ($25); Legal Expense ($125); Gifts/Entertainment ($25). See Attachment to Affidavit of Howard Furkin (d/e 992) (Furkin Aff.). The Court notes that Furkin has also submitted an Affidavit from his daughter, Diana L. Ross, attesting that she receives from Furkin $800.00 per month for room and board, which she claims includes and is not limited to the following:

a. Furnished Living Quarters

b. Proportionate Share of:

i. Utilities (i.e. Electricity, cable, water, trash)

ii. Food, other than special diabetic products

iii. Household necessities (i.e. Toilet paper, cleaning supplies, laundry supplies)

c. Usage of:

i. Computer

ii. Fax ...


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