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United States v. Kincaid

United States District Court, C.D. Illinois, Springfield Division

July 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PAUL KINCAID, Defendant, STEVEN R. COLLINS, Third Party Respondent.

          OPINION

          RICHARD MILLS, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The Government seeks to collect a portion of the restitution debt owed by Defendant Paul Kincaid resulting from Kincaid's convictions for possession and production of child pornography, pursuant to 18 U.S.C. §§ 2251 and 2252A(a)(5)(b).

         In 2008, Kincaid was sentenced to 360 months in prison and $60, 000 in restitution. In seeking to collect that debt, the Government sought to discover the assets of Third Party Respondent Steven R. Collins, with whom Kincaid for a number of years co-owned a personal residence and operated multiple businesses. A house and real estate property located at 502 E. Union Street, Litchfield, Illinois, are at issue.

         On November 24, 2015, the Court ordered that Mr. Collins turn over to the United States a total of $23, 019.16. On March 28, 2017, the United States Court of Appeals for the Seventh Circuit vacated the Turnover Order and remanded this case for further proceedings. The Seventh Circuit determined that the Court erred in resolving factual disputes without holding an evidentiary hearing.

         On remand, the Court was instructed to consider the following issues:

1. Third Party Respondent Steven R. Collins's right to an opportunity to be heard and present evidence;
2. The basis for a determination that Collins and Kincaid owned the house in question jointly and equally;
3. The value of the property at the time of the recorded 2006 quitclaim deed;
4. At the time Kincaid signed the 2006 quitclaim deed, whether Kincaid should have recognized that he would likely incur debts beyond his ability to pay.

See United States v. Kincaid, 681 Fed.Appx. 498, 499-500 (7th Cir. 2017).

         II. PROCEDURAL BACKGROUND

         Following the remand, on March 30, 2017, the Court set a deadline for filing briefs and scheduled an evidentiary hearing for June 13, 2017 so that the parties could present evidence and the Court could resolve any factual disputes. See Ill. S.Ct. R. 277(e) (providing that “[a]ny interested party may subpoena witnesses and adduce evidence as upon the trial of any civil action”).

         The evidentiary hearing was rescheduled a number of times. On June 9, 2017, the Court granted Mr. Collins's motion to continue and reset the evidentiary hearing for August 15, 2017. In the same Order, Collins's motion for discovery was denied on the basis that discovery had been allowed in 2010 and 2011.

         On June 12, 2017, at the Government's request, the hearing date was rescheduled for August 22, 2017.

         On August 22, 2017, the Parties appeared at the hearing and the Government presented its evidence. Mr. Collins requested a continuance so he could obtain counsel. The Court granted Collins's request and the case was continued to October 24, 2017.

         On October 17, 2017, Mr. Collins filed a motion to continue which was granted. The hearing was reset for December 12, 2017.

         On November 21, 2017, the Government filed a motion to require Steven Collins to file a status report and provide documentation. On December 1, 2017, the Court granted the Government's motion and directed Mr. Collins to file copies of the exhibits or documentation that he claimed in a previous filing significantly corroborates and supports his position.

         On December 6, 2017, Mr. Collins filed a motion to file position statement/brief and reschedule hearing date. The motion stated that Collins had been under “constant and continued medical treatment” and was taking medication that “significantly impair [his] ability to concentrate on intellectual matters.” The Court canceled the hearing set for December 12, 2017 and stated the hearing would be reset after Collins had provided evidence to the Court and counsel for the Government. The Court ordered Collins to provide the previously referenced discovery to the Government by December 19, 2017 and stated any position statement of Collins was due by January 31, 2018.

         On December 15, 2017, Collins filed a motion to file documents with his position statement/brief which was not due until January 31, 2018. The motion provided Collins “is in no position to provide his documentary proofs in December. He still is not. This is to [sic] much to demand of him.” Collins asserted “he has documents that prove up his position on the fair market value issue. But to require him to accelerate the process of developing his Position Statement/Brief to determine which documents prove up his argument the best is unjust.” On December 19, 2017, the Government objected to Collins's motion, stating that Collins had never provided the discovery that established the value of the real estate in question in his Position Statement/Brief. On December 21, 2017, the Court ordered Collins to turn over by January 3, 2018, the documentary evidence he claimed was in his possession which corroborated and supported his position regarding the fair market value of the real estate on the September 14, 2006 date of transfer.

         On January 4, 2018, Mr. Collins filed a motion to reconsider, asking that the Court not require him to turn over the corroborating documentary evidence until he filed a position statement/brief. He claimed the documents were protected by the work product privilege. On January 24, 2018, the Court entered a Text Order granting the requested relief, allowing Collins to file copies of any documents which would be submitted at an evidentiary hearing with his position statement.

         On January 29, 2018, Mr. Collins filed a motion for extension of time to file a position statement with exhibits. The Court granted the motion and extended the deadline to February 7, 2018. On February 7, 2018, Collins filed a position statement with exhibits.

         On February 21, 2018, the Government filed a response to Collins's position statement. On April 4, 2018, the Court set the evidentiary hearing for May 10, 2018. The Government requested a brief continuance due to a conflict. The hearing was then reset for May 17, 2018.

         On May 3, 2018, Mr. Collins requested a continuance so he could subpoena witnesses. The Government objected and moved to strike Collins's pleading. On May 14, 2018, Collins filed a motion to reschedule the evidentiary hearing in order to allow for sufficient time to request time off from work. The Court granted the motion and continued the hearing to June 14, 2018. The Government objected to some of Collins's witnesses, including the then-United States Attorney. The hearing was continued to June 28, 2018, to enable Collins to respond to the Government's motion.

         On June 19, 2018, Mr. Collins filed another motion to continue. The Court noted that Collins did not receive the Government's pleadings or Court's Orders until a few days after docketing. The hearing was continued to July 19, 2018 to allow Collins to respond to the Government's pleadings.

         On July 5, 2018, Mr. Collins filed a motion to reschedule the evidentiary hearing and another motion to supplement his position statement. The Court continued the hearing to July 20, 2018, because Collins was not scheduled to work on that day.

         On July 16, 2018, over the Government's objection, the Court entered an Order allowing Mr. Collins to call a number of witnesses at the evidentiary hearing, including (1) Steven R. Jennings, a real estate appraiser; (2) Ray Durston, the Supervisor of Assessments and Chief County Assessment Officer for Montgomery County; (3) Sandy Leitheiser, the Montgomery County Clerk and Recorder; (4) Leon Green, the Montgomery County North Litchfield Township Assessor; and (5) Scott Anderson, an FBI agent who Collins alleged found a copy of the original quitclaim deed when searching the property.

         On July 17, 2018, Collins filed another motion to continue. On July 18, 2018, the Court granted the motion in order to give Collins an opportunity to present witnesses and testimony and any other admissible relevant evidence. The Court canceled the July 20 hearing and directed the Parties to confer and agree on potential dates for an evidentiary hearing within 60 days or less.

         On July 20, 2018, the Government filed a Notice of Available Hearing Dates. Counsel for the Government stated she had called Mr. Collins's listed phone number a total of four times over the course of July 18-19, 2018. Collins failed to answer but counsel left a message each time stating that the Court had granted his motion to continue and Collins should contact the United States Attorneys' Office to confer on a hearing date. Counsel contacted three of Collins's witnesses regarding their availability and listed several available dates.

         On July 27, 2018, the Court set the evidentiary hearing for September 12, 2018. The Court also set aside the afternoons of September 13 and 14, 2018 for the hearing.

         On July 30, 2018, Collins filed a response to the Government's Notice of Available Hearing Dates. In a letter to counsel for the Government, Collins stated he would be prepared to confer by letter with the Government when he received the Court's July 18, 2018 Text Order. Collins suggested holding the hearing on September 20, 21, 26 or 27, 2018. Upon reviewing Collins's filing, the Court noted that September 21, 2018 was a mutually agreeable date and set the hearing for that date.

         On September 19, 2018, Mr. Collins requested that the evidentiary hearing be rescheduled because “he was in no condition to attend.” The same day, the Court denied the motion to continue, stating in a Text Order: “It has been thirteen months since the Government presented evidence. There have been a number of continuances for various reasons. At some point, the case needs to move forward. If the Third Party Respondent is unable to be physically present, he may appear by telephone and the Parties can discuss how to proceed.” According to a September 19, 2018 “Clerk's Note” entry on the docket, the Clerk contacted Mr. Collins regarding the Text Order. Collins “advised that he will not be able to be present in person or by telephone as he is physically and mentally not capable of doing so.” He stated he was on medication which affected his ability to proceed. The Clerk's Note concluded, “He reiterated several times that he has been stalked and injured and is not in a position to proceed even telephonically at this time.”

         On September 21, 2018, the Government appeared for the scheduled hearing. Before the Court took the bench, the Clerk tried to contact Mr. Collins three times, leaving a detailed voicemail message on two of the phone calls. She called at 2:00 p.m., 2:10 p.m. and at 2:33 p.m. The Court ordered the Clerk to call Collins's phone number again. Collins never answered and the Clerk was unable to leave a message.

         At the September 21, 2018 hearing, the Government noted that both parties were to have presented evidence on August 22, 2017, but Collins was granted a continuance so he could seek to obtain counsel. It had been 13 months since the Government presented evidence. The Government further stated that Collins had not described the exact nature of his injuries and had failed to provide a doctor's medical statement. ...


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