United States v. Gary France , 782 F.3d 820 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2743
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GARY L. FRANCE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:00-cr-01061-1 — Charles R. Norgle, Judge.
____________________
ARGUED JANUARY 23, 2015 — DECIDED APRIL 7, 2015
____________________
Before WOOD, Chief Judge, and KANNE and TINDER, Circuit
Judges.
TINDER, Circuit Judge. In 2002, Dr. Gary France was
ordered to pay $800,000 in restitution to victims of a
fraudulent billing scheme he committed. By 2014, however,
France had paid less than $11,000 toward that amount, so
the government moved under the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. § 3613(a), to garnish
monthly payments of $16,296 from France’s privately
2 No. 14-2743
purchased disability insurance policy. France maintains that
these payments are at least partially exempt from
garnishment, and his ex-wife, Theresa Duperon, seeks to
exempt a portion of the payments that she receives for child
support. The district court allowed the government to
garnish the entire amount. We affirm.
I. BACKGROUND
In the mid-1990s, France owned and operated a dental
business in Chicago. During this time, he engaged in a
lucrative scheme to fraudulently bill insurers for employees
of the City of Chicago and the Chicago Transit Authority.
For that scam, he pleaded guilty in April 2002 to mail fraud.
See 18 U.S.C. § 1341. Meanwhile, in 1996, France closed his
solo dental practice after being injured in a car accident and
started collecting monthly benefits from a disability income
policy he had purchased through his dental business. In
1999, he agreed to give a portion of these monthly payments,
for a limited time, to Western United Life Insurance
Company in exchange for a lump sum of more than
$300,000. He then transferred this money into various
accounts in the names of other people, including Duperon
(his then-wife), before filing a Chapter 7 bankruptcy petition
in early 2000. He failed to disclose the lump sum payment or
subsequent transfers in the bankruptcy petition and in fact
made affirmative declarations concealing their existence. For
that reason, at the same time he pleaded guilty to mail fraud,
France pleaded guilty to knowingly making a false
declaration under penalty of perjury. See 18 U.S.C. § 152(3).
In August 2002, the district court sentenced France to a
total prison term of 30 months and ordered him to pay
$800,000 in restitution to the City of Chicago Law
No. 14-2743 3
Department and the Chicago Transit Authority. In
September 2002, the government recorded notice of this lien
in California, where France had relocated. Two months later,
the trustee appointed in France’s bankruptcy proceedings
obtained an order giving the trustee title to ongoing
payments from the disability insurance. (The Chapter 7 case
began with the United States trustee serving as trustee for
the estate, but later, in 2002, a private attorney was
appointed as trustee, as is standard practice. See 28 U.S.C.
§ 586(a)(1) (requiring United States trustee to maintain a
panel of private trustees for cases filed under Chapter
7); United States Trustee Program, About the Program,
http://www.justice.gov/ust/eo/ust_org/index.htm visited
Mar. 13, 2015).)
In July 2003, France and Duperon divorced and reached a
marital settlement under which Duperon was to receive
payments for child support through 2019 from the disability
insurance payments. The payments would increase up to
$7,000 per month. A California court approved the
settlement in August 2003.
In February 2004, France’s insurance company filed an
interpleader action in California to resolve conflicting claims
to the insurance proceeds from the bankruptcy trustee,
France, France’s sister, and Duperon. In March 2005, these
parties reached a settlement agreement, which the
bankruptcy court approved, purporting to control all other
judgments in regard to the insurance policy. The settlement
did not mention the restitution lien from France’s criminal
case, and it appears that the bankruptcy trustee was never
notified of it.
4 No. 14-2743
In May 2013, the government filed in France’s criminal
case in the Northern District of Illinois citations to discover
assets in accordance with Illinois law that were directed at
France, his insurer, and Duperon. See 735 ILCS 5/2-1402
(authorizing procedure for creditor to prosecute
supplementary proceedings to discover assets). France
moved to quash the citation primarily on the basis that his
disability payments were exempt from garnishment under
California law. But the insurance company responded to the
citation by informing the government that it was
distributing monthly payments of $9,296 to France and
$7,000 to Duperon, for a total of $16,296. France’s insurer
also began withholding the $9,296 that had been going to
France.
In February 2014, based on the information from the
insurance company, the government moved to garnish the
entire monthly distributions under § 3613(a), which provides
as follows:
(a) Enforcement.— The United States may
enforce a judgment imposing a fine in
accordance with the practices and procedures
for the enforcement of a civil judgment under
Federal law or State law. Notwithstanding
any other Federal law (including section 207
of the Social Security Act), a judgment
imposing a fine may be enforced against all
property or rights to property of the person
fined, except that—
(1) property exempt from levy for taxes
pursuant to section 6334(a)(1), (2), (3), (4),
(5), (6), (7), (8), (10), and (12) of the
No. 14-2743 5
Internal Revenue Code of 1986 shall be
exempt from enforcement of the
judgment under Federal law;
(2) section 3014 of chapter 176 of title 28 shall
not apply to enforcement under Federal
law; and
(3) the provisions of section 303 of the
Consumer Credit Protection Act
(15 U.S.C. 1673) shall apply to
enforcement of the judgment under
Federal law or State law.
In response to the government’s motion, France’s insurer
began withholding Duperon’s payments in addition to
France’s, and France and Duperon asserted that the
payments—or at least a portion of them—were exempt from
garnishment. In addition to asserting state law exemptions,
France argued that the payments were partially exempt
under § 3613(a)(3) as “earnings” under the Consumer Credit
Protection Act (CCPA), which sets a ceiling of 25% per week
for garnishment of “disposable earnings.” 15 U.S.C.
§ 1673(a)(1). He emphasized that the Eighth Circuit recently
held that payments from private disability insurance
constitute “earnings” under the CCPA in United States v.
Ashcraft, 732 F.3d 860 (8th Cir. 2013). Duperon additionally
argued that the government should be estopped from
undermining the interpleader settlement involving the
bankruptcy trustee.
The district court rejected France’s and Duperon’s
arguments and ordered garnishment of the entire disability
payments. The court noted that France had “arguably
waived his right to claim the CCPA statutory exemption” by
6 No. 14-2743
not asserting it when first served with the citation for
discovery of assets. The court concluded that, in any event,
the disability payments were not compensation paid for
personal services, and thus did not fall under the CCPA’s
definition of earnings. See 15 U.S.C. § 1672(a). The court
distinguished Ashcraft on the grounds that, unlike the
defendant there, “France was self-employed,” and thus the
payments were “not a benefit of his employment.” The court
also concluded that state law exemptions did not apply
because the government was proceeding under federal law.
As for Duperon, the district court acknowledged that 26
U.S.C. § 6334(a)(8), which is incorporated into § 3613(a)(1),
exempts payments for support of minor children if ordered
by a court judgment “entered prior to the date of levy.” But
the court reasoned that, assuming Duperon had standing to
assert the exemption, the government’s restitution lien was
superior to her interest, having been entered well before the
couple’s divorce. Moreover, the court noted that France no
longer had a minor child because the couple’s daughter had
turned 19. The court also rejected Duperon’s estoppel
argument, concluding that the government was not bound
by the results of the California litigation because it was
unaware of those proceedings, and that the bankruptcy
trustee had acted as a representative of the estate, not the
government.
The district court also noted that, at that time, France had
paid only $10,223.04 toward the restitution judgment. At
argument, the government reported that, as a result of the
garnishment order, it had already recovered almost
$250,000. At that rate, counsel stated, the restitution
judgment will be paid in three to four years.
No. 14-2743 7
II. DISCUSSION
France’s lead argument on appeal is that the disability
payments are exempt from garnishment because they are
“earnings” under § 1672(a). The district court observed that
France had “arguably” waived this argument by not
asserting it when the government first sought to discover his
assets, but we are not persuaded that waiver is appropriate
here. As France notes, and the government does not dispute,
the CCPA contains no requirement that a debtor
affirmatively assert an exemption, and in fact, § 1673(c)
states that “[n]o court … may make, execute, or enforce any
order or process in violation of this section,” suggesting the
exemption is automatic. Moreover, the only authority the
district court cited in support of waiver, Guess?, Inc. v.
Chang, 912 F. Supp. 372, 379 (N.D. Ill. 1995), is
distinguishable because it involved an exemption under
state law, not the MVRA or CCPA.
Moving to the merits, we start with the text of the
MVRA, which incorporates the cap on garnishment of
“disposable earnings” found in § 1673 into a list of
exemptions from garnishment. 18 U.S.C. § 3613(a)(3).
“Disposable earnings” is defined in § 1672(b) as “that part of
the earnings of any individual remaining after the deduction
from those earnings of any amounts required by law to be
withheld.” 15 U.S.C. § 1672(b). “Earnings” is defined as
“compensation paid or payable for personal services,
whether denominated as wages, salary, commission, bonus,
or otherwise, and includes periodic payments pursuant to a
pension or retirement program.” Id. § 1672(a).
Based on that language, we held in United States v. Lee,
659 F.3d 619, 621 (7th Cir. 2011), that the government may
8 No. 14-2743
not garnish more than 25% of the monthly payments from a
defendant’s 401(k) and defined benefit pension. The Fifth
Circuit has decided likewise. United States v. DeCay, 620 F.3d
534, 544 (5th Cir. 2010); compare United States v. Laws, 352 F.
Supp. 2d 707, 714 (E.D. Va. 2004) (holding that retirement
annuity payments that had already passed to the debtor
were not earnings). We have never, however, had occasion
to address whether the CCPA, as incorporated into the
MVRA, also covers payments made pursuant to a privately
purchased disability policy.
As recognized by the district court, the only appellate
decision to squarely address this issue is the Eighth Circuit’s
decision in Ashcraft. There, the court emphasized that the
Supreme Court, in Kokoszka v. Belford, 417 U.S. 642, 651
(1974), endorsed the view that “earnings” as defined in the
CCPA are “limited to periodic payments of compensation
and do not pertain to every asset that is traceable in some
way to such compensation.” Id. (alterations and quotations
omitted). Citing that interpretation, the Eighth Circuit
concluded that payments made pursuant to a disability-
benefits plan purchased by Ashcraft’s former employer were
“earnings” because they were “designed to function as wage
substitutes” and thus were “not merely ‘traceable in some
way’ to Ashcraft’s compensation, but [were] themselves a
direct component of [her] compensation.” Ashcraft, 732 F.3d
at 864.
The district court concluded that France, unlike Ashcraft,
was “self-employed,” but that description is not truly
accurate: France incorporated his dental business, and his
insurance policy, like Ashcraft’s, was purchased through a
corporate entity. France’s policy is distinguishable from
No. 14-2743 9
Ashcraft’s for another reason: unlike Ashcraft’s insurance,
France’s policy essentially functioned as business-loss
insurance because his business depended entirely on his
ability to perform dental work and his insurance covered
only his ability to perform that occupation. We are not
convinced, however, that this distinction provides a
principled basis for distinguishing the reasoning in Ashcraft
from the situation here, since the disability payments are still
arguably designed to function as a wage substitute.
The government seems to recognize that the district
court’s reason for distinguishing Ashcraft is problematic and
thus argues that, even if Ashcraft is on point, it was wrongly
decided. The government urges us to examine how the
CCPA applies in the context of § 3613(a), noting that, although
Ashcraft technically involved the MVRA, the Eighth Circuit’s
decision did not address interpretation of the list of
exemptions in § 3613(a) and, in fact, failed to even cite that
provision. This oversight is critical, the government argues,
because “[i]n drafting § 3613, Congress deliberately included
and excluded various kinds of disability income, and the
exclusion of private disability cannot be considered an
accident or oversight that should be judicially corrected.”
We agree. Section 3613(a)(1), which selectively
incorporates exemptions from the Internal Revenue Code,
makes express exceptions for two specific types of disability
payments, workmen’s compensation, 26 U.S.C. § 6334(7),
and military-related disability payments, id. § 6334(10),
without mentioning private disability insurance. Further, the
list in § 3613(a)(1) does not include § 6334(11), which exempts
certain forms of public assistance, including Social Security
disability payments. Although somewhat “beleaguered,” the
10 No. 14-2743
canon of expressio unius est exclusio alterius—“the expression
of one thing suggests the exclusion of others”—remains a
compelling interpretive guide when “‘the items expressed
are members of an ‘associated group or series,’ justifying the
inference that items not mentioned were excluded by
deliberate choice, not inadvertence.’” Exelon Generation Co. v.
Local 15, Int’l Bhd. of Elec. Workers, AFL-CIO, 676 F.3d 566, 571
(7th Cir. 2012) (quoting Barnhart v. Peabody Coal Co., 537 U.S.
149, 168 (2003)). Furthermore, “[w]here Congress explicitly
enumerates certain exceptions to a general prohibition,
additional exceptions are not to be implied, in the absence of
evidence of a contrary legislative intent.” Andrus v. Glover
Constr. Co., 446 U.S. 608, 616–17 (1980); see In re Robinson, 764
F.3d 554, 562 (6th Cir. 2014) (applying this concept to
§ 3613(a)). Here, where Congress elected to incorporate the
exemptions for certain forms of disability payments and not
others, we think that a plain reading of the MVRA leads to
the conclusion that it does not cover France’s disability
payments.
This reading is further supported by the opening
paragraph of § 3613(a), which states that the statute operates
“[n]otwithstanding any other Federal law (including section
207 of the Social Security Act).” According to the Supreme
Court, “in construing statutes, the use of such a
‘notwithstanding’ clause clearly signals the drafter’s
intention that the provisions of the ‘notwithstanding’ section
override conflicting provisions of any other section.”
Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993). For that
reason, several circuits have read § 3613(a) broadly as
superseding other statutory provisions safeguarding a
defendant’s assets. See, e.g., Robinson, 764 F.3d at 561–62
(collecting cases and holding that MVRA supersedes
No. 14-2743 11
bankruptcy stay); United States v. Novak, 476 F.3d 1041, 1047
(9th Cir. 2007) (en banc) (holding that MVRA supersedes
ERISA’s non-alienation provisions); United States v. Hyde, 497
F.3d 103, 108 (1st Cir. 2007) (holding that MVRA supersedes
Bankruptcy Code provisions). This case law underscores the
importance of not adopting an expansive reading of the
exemptions to § 3613(a).
Furthermore, we note that not only did Ashcraft fail to
examine the MVRA, it also, in our view, relied on Kokoszka
for a proposition that decision does not support. In Kokoszka,
the Supreme Court limited the reach of the CCPA’s definition
of earnings, adopting the view that earnings do not include
“every asset that is traceable in some way to such
compensation” and concluding that the cap on garnishment
does not apply to income tax refunds. 417 U.S. at 651. At the
very least, this language cautions against stretching the
definition of “earnings” to include wage substitutes that are
not explicitly mentioned in the statute. 1
France alternatively argues that his disability payments
are exempt under 28 U.S.C. § 3014(a)(2), which allows a
debtor to elect to exempt property that is exempt under the
law of the state where the debtor has been domiciled for at
least 180 days. He argues that in California, where he is
domiciled, disability insurance benefits are exempt from
garnishment. Notably, § 3613(a)(2) states that § 3014 “shall
1 Because this opinion creates a split with the Eighth Circuit,
we circulated it in advance of publication to all judges of this court in
regular active service, pursuant to Circuit Rule 40(e). None voted to hear
the case en banc.
12 No. 14-2743
not apply to enforcement under Federal law.” But France
argues that this provision is inapplicable because the
government used an Illinois procedural mechanism to seek
discovery of his assets. He points to Paul Revere Insurance
Group v. United States, 500 F.3d 957, 960 (9th Cir. 2007), in
which the Ninth Circuit held that California law exempted
disability income from garnishment of a restitution lien.
This argument is unpersuasive. As the government
observes, although it issued a discovery citation under
Illinois law, it did so only because Fed. R. Civ. P. 69(a)
explicitly authorizes use of state procedure in obtaining
discovery from a judgment debtor. More than that, once it
obtained the information about France’s assets from his
insurer, the government moved for garnishment solely
pursuant to § 3613. That fact sets this case apart from Paul
Revere, where, critically, “the government elected to use
California state law to create and enforce its judgment lien.”
500 F.3d at 963 (emphasis added). In contrast, as the district
court noted, the government here is enforcing a federal
judgment lien and moved for garnishment under federal
law. For that reason, we are convinced that state law
exemptions are inapplicable to the government’s
enforcement efforts.
As for Duperon, she maintains that the district court
erred in concluding that the child support she received from
the insurance disbursements are not exempt under
§ 6334(a)(8). As a preliminary matter, however, we note that,
although not meaningfully addressed in the appellate briefs,
we are concerned about Duperon’s standing to assert the
exemption. In the district court, Duperon asserted standing
under States v. Kollintzas, 501 F.3d 796, 800–01 (7th Cir. 2007),
No. 14-2743 13
which allowed a defendant’s wife to participate in an appeal
regarding collection proceedings against her husband under
the Federal Debt Collection Procedures Act because she was
a person with interest in property subject to collection. But
Duperon’s interest in this case appears to be limited to her
role as a representative for her daughter, who is no longer a
minor—a fact that Duperon more or less ignores. We need
not resolve the appeal on this basis, however, because, as
will be discussed, we are not persuaded that any interest
Duperon (or her daughter) possesses trumps the
government’s restitution lien.
Duperon contends that, although the restitution order
was entered before the marital settlement, the restitution lien
did not attach to France’s interest in the policy proceeds
because the bankruptcy trustee, as administrator of the
bankruptcy estate, obtained title to all of France’s assets
when he filed for bankruptcy in 2000. See 11 U.S.C.
§ 541(a)(1) (stating that, with limited exceptions, “all legal or
equitable interests of the debtor in property” become part of
the bankruptcy estate). Thus, in Duperon’s view, the
government’s restitution lien attached to only the $9,296 that
France began receiving after the California interpleader
settlement, when the trustee relinquished its title to the
insurance policy. Duperon emphasizes that a restitution lien
is treated like a tax lien, 18 U.S.C. § 3613(c), and that the
Supreme Court, in United States v. Speers, 382 U.S. 266, 275
(1965), held that a bankruptcy trustee’s authority to settle
outstanding debts, see Fed. R. Bankr. P. 9019, prevailed over
a prior unrecorded federal tax lien.
But adopting Duperon’s view would lead to the
troubling result that, by concealing information from the
14 No. 14-2743
bankruptcy trustee—part of the basis for his criminal
conviction—France might be able to shield a portion of his
insurance payments from government collection. This
concern underscores an important difference between this
case and Speers, where the trustee knew about the pre-
existing, unrecorded tax lien and specifically concluded that
it was invalid as to him. 382 U.S. at 268. Here, in contrast, the
government recorded its lien in the midst of the bankruptcy,
and it appears that the trustee was never formally notified of
it before entering the settlement.
More importantly, as the government emphasizes,
Duperon’s arguments run headlong into the text of the
MVRA. As other circuit courts have held, the language in
§ 3613(a) stating that the statute operates “[n]otwithstanding
any other Federal law” appears to supersede conflicting
provisions of the Bankruptcy Code. See Robinson, 764 F.3d at
557 (holding that Ҥ 3613 supersedes the automatic stay and
allows the government to enforce restitution orders against
property included in the bankruptcy estate”); Hyde, 497 F.3d
at 108 (holding that the Bankruptcy Code does not
“restrict[ ] the reach of the MVRA’s clear language”). As
further pointed out by the Sixth Circuit in Robinson, § 3613(e)
explicitly dictates that a bankruptcy discharge shall not
“discharge liability to pay a fine pursuant to this section, and
a lien filed as prescribed by this section shall not be voided
in a bankruptcy proceeding,” suggesting “that Congress had
the potential effects of the Bankruptcy Code in mind when it
drafted § 3613(a).” Robinson, 764 F.3d at 561–62. Finally, as
also noted in Robinson, § 3613(c) states that a restitution lien
“arises on the entry of judgment” without making any
exception for pending bankruptcy matters. Id. at 562
(“Conspicuously, the Bankruptcy Code, including the
No. 14-2743 15
automatic stay, is absent from [§ 3613(a)’s] list of exceptions
....”). For these reasons, we are convinced that the
bankruptcy proceedings here did not limit the reach of the
MVRA as Duperon suggests.
Finally, Duperon argues that equitable estoppel should
apply to bar the government from garnishing her child-
support payments because the bankruptcy trustee, a party to
the interpleader settlement, is part of the Department of
Justice and thus, in her view, “in privity” with the United
States Attorney’s Office. Based on this understanding, she
argues that the government should be bound by a provision
in France’s criminal plea agreement stating that the plea did
not limit any “judicial civil claim, demand, or cause of action
whatsoever of the United States or its agencies.”
The district court found this argument to be “wholly
without merit,” and we agree. As the government notes, it is
a high standard to apply equitable estoppel against the
government. See Matamoros v. Grams, 706 F.3d 783, 793–94
(7th Cir. 2013) (“The Supreme Court has never affirmed a
finding of estoppel against the government. And that is not
for lack of review. The Court, in fact, has reversed every
finding of estoppel that it has reviewed.”) (internal
quotations and alterations omitted). Although the United
States Trustee Program is indeed part of the Department of
Justice, 28 U.S.C. § 586, see Bell v. Thornburg, 743 F.3d 84, 88
(5th Cir. 2014) (explaining the history of the Trustee
Program), the Supreme Court has long recognized that
“[t]he bankruptcy trustee is the representative of the estate
of the debtor, not an arm of the Government,” Cal. State Bd.
of Equalization v. Sierra Summit, Inc., 490 U.S. 844, 849 (1989)
(internal quotations and alterations omitted); see also 11
16 No. 14-2743
U.S.C. § 101(27) (excluding a trustee who is serving as
trustee in a bankruptcy case from the definition of
“governmental unit”). Further, as often occurs, the United
States Trustee here recruited a private attorney to serve as
trustee, providing a further layer of separation between the
trustee and the prosecuting attorneys. Because Duperon has
provided no persuasive reason to allow the actions of a
private bankruptcy trustee to estop the criminal enforcement
efforts of the Department of Justice, we affirm the district
court’s refusal to apply equitable estoppel.
Accordingly, the district court’s judgment is AFFIRMED.