Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Macchione

October 1, 2009

UNITED STATES OF AMERICA
v.
JOHN P. MACCHIONE, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

In 2001, a jury convicted John Macchione ("Macchione") of one count of mail fraud and three counts of tax evasion in connection with his participation in a scheme to defraud a company called UnoVen. He was sentenced to thirty-seven months' imprisonment, and ordered to pay restitution to Uno-Ven in the amount of $1,147,603. As part of its continuing effort to enforce the restitution order, the government moved the court in March 2009 to issue an order requiring the Pension Fund and the Annuity Fund of the International Association of Heat and Frost Insulators, Local 17 to turn over certain benefits belonging to Macchione.*fn1 Specifically, the government asked that the Pension Fund be ordered to turn over monthly payments of $2,510, and that the Annuity Fund be ordered to turn over a lump sum payment of $157,506, at the time that these sums became due and payable to Macchione.

It later became clear that, under the terms of his pension plan, Macchione would become eligible to receive monthly payments only upon reaching sixty-two years of age. Under the annuity plan, however, a participant is eligible to receive benefits after fifty-five years of age. Since Macchione was aged fifty-nine in May 2009, the government sought to amend its motion to require only that the Annuity Fund be ordered to turn over the $157,506 lump sum payment. As for the pension payments, the government asked that the Pension Fund be ordered to spread the government's lien of record and prohibit any distribution until further order of the court. First Am. Mot. for Turnover Order at 4 (Doc. 381).

Still later, the Funds responded to the government's amended motion for a turnover order. While the Pension Fund did not oppose entry of the order, the Annuity Fund raised two objections: (1) that the annuity can be distributed only when a participant dies, is disabled, or elects to retire; and (2) that no lump sum benefit can be paid without the consent/waiver of the participant's spouse. Citation Respondents' Resp. to First Am. Mot. for Turnover Order (Doc. 401) ¶¶ 1, 3.

Rather than disputing the Annuity Fund's position, the government requested that, as with the Pension Fund, the Annuity Fund be ordered to spread the government's lien of record so as to prevent any distribution of Macchione's assets until further order of the court. Sur-Reply in Support of Amended Mot. for Turnover Order at 2 (Doc. 419). Thus, in light of the subsequent amendments to its original motion, the government in effect no longer seeks a turnover order; instead, it asks that, for the time being, the government's lien on both Macchione's pension and annuity benefits be spread of record.

Throughout these proceedings, Macchione has opposed the government's motion on several grounds. His chief arguments are:

(1) that the government's motion is untimely and (2) that, as a matter of law, the pension and annuity benefits the government seeks are not subject to turnover. In addition, he raises (3) an inchoate set of arguments that appear to be directed more specifically at the request in the government's amended motion that its lien be spread of record. Lastly, Joanne Macchione objects to the entry of the turnover order on the ground that, as Macchione's spouse, she is entitled to the pension and annuity payments sought by the government.

For the reasons discussed below, I reject Macchione's arguments and grant the government's amended motion for turnover order to the extent that it asks that its lien on the pension and annuity benefits be spread of record. The parties have not yet addressed the legal and factual issues concerning Joanne Macchione's possible entitlement to Macchione's annuity and pension payments. The parties are therefore directed to brief the latter issues. Until then, I defer issuing any definitive ruling as to whether the assets in question must be turned over in fulfillment of Macchione's restitution obligation.

II.

I first address Macchione's claim that the government's turnover motion is untimely. His argument is based on Illinois Supreme Court Rule 277, which describes the procedures to be followed where supplementary proceedings are brought to enforce judgments. In relevant part, the rule provides:

A proceeding under this rule continues until terminated by motion of the judgment creditor, order of the court, or satisfaction of the judgment, but terminates automatically 6 months from the date of (1) the respondent's first personal appearance pursuant to the citation or (2) the respondent's first personal appearance pursuant to subsequent process issued to enforce the citation, whichever is sooner. The court may, however, grant extensions beyond the 6 months, as justice may require. Orders for the payment of money continue in effect notwithstanding the termination of the proceedings until the judgment is satisfied or the court orders otherwise.

ILCS S.Ct. Rule 277(f).

Since the answer to the citation was filed on January 31, 2007, and the turnover motion was filed on March 10, 2009, Macchione contends that the six-month period has expired, and that the government's motion is therefore time-barred. I disagree.

As Rule 277(f)'s plain language makes clear, extensions may be granted "as justice may require." ILCS S.Ct. Rule 277(f). Even assuming that the motion were untimely, an extension would be warranted under the circumstances of this case.*fn2 As courts have explained, Rule 277(f)'s "automatic termination deadline seeks to 'force judgment creditors to move promptly to collect their judgments, so that property does not remain encumbered by liens indefinitely' and to avoid undue harassment of a judgment debtor or a third party." Windcrest Development Co., Inc. v. Giakoumis, 834 N.E.2d 610, 614 (Ill. App. Ct. 2005)(quoting King v. Ionization Intern., Inc., 825 F.2d 1180, 1188 (7th Cir. 1987)). These concerns are not implicated here. There is no reason to think that the liens in question might indefinitely encumber Macchione's assets; nor, despite Macchione's protestations to the contrary, is there any evidence of harassment in this case. The government is simply seeking to effectuate the restitution order to which Macchione is undeniably subject. Indeed, the government is required to seek restitution under the Mandatory Victims Restitution Act of 1996 ("MVRA"). 18 U.S.C. ยง 3663A ("Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.