United States v. Idema

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6130
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN KEITH IDEMA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Fayetteville. Terrence W. Boyle,
Chief District Judge. (CR-93-2-BO)
Argued: November 30, 2004 Decided: January 4, 2005
Before WILKINS, Chief Judge, SHEDD, Circuit Judge, and Norman K.
MOON, United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
ARGUED: Clifford James Barnard, Boulder, Colorado, for Appellant.
Barbara Dickerson Kocher, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In 1994, a federal jury convicted Jonathan Keith Idema of
fifty-nine counts of wire fraud. The district court sentenced Idema
to four years imprisonment to be followed by three years of
supervised release. The court also ordered Idema to pay a total of
$200,000 in restitution to more than fifty victims of his fraud.
Idema completed his term of imprisonment in September 1997 and his
supervised release in September 2000. The government alleges that
Idema has failed to make any restitution payments.
Beginning in September 2002, the government issued and served
subpoenas on numerous individuals and entities allegedly associated
with Idema to obtain information relating to his assets. Although
the government designated the subpoenas as “civil” in nature, the
subpoenas were filed in Idema’s criminal case. In 2003, the
government applied for writs of continuing garnishment in Idema’s
criminal case to recover restitution on behalf of the private
victims of Idema’s fraud. The district court issued the writs of
garnishment, which were then served on several entities thought to
have possession of Idema’s assets.
Idema moved to quash the writs of garnishment and the
subpoenas. Several recipients of the subpoenas joined in Idema’s
motion to quash the subpoenas. The district court denied both
motions to quash, and Idema now appeals. For the reasons that
follow, we affirm the district court’s denial of the motion to quash
2
the writs of garnishment, and we dismiss for lack of standing
Idema’s appeal of the denial of the motion to quash the subpoenas.
I.
Idema argues that the government may not seek to recover
restitution in his underlying criminal case because the Victim and
Witness Protection Act (“VWPA”) divested the district court of
jurisdiction over his criminal case by no later than the end of his
supervised release in September 2000. Alternatively, Idema contends
that the VWPA requires the government to file a separate civil
action to recover restitution. In addition, he argues that the
government is not permitted under the VWPA to seek recovery on
behalf of private victims.1 We disagree with these contentions.
A.
Idema argues that the VWPA divested the district court of
jurisdiction in his criminal case in September 2000 when he
completed his term of supervised release. Thus, he contends the
writs of garnishment and the subpoenas were improperly issued.
Idema’s reliance on the time limitation provisions in the VWPA is
misplaced for two reasons.
1
The Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C.
§ 3663A, was enacted in 1996 and made effective to cases in which
the defendant’s conviction became final on or after April 24, 1996.
Idema’s conviction became final in 1995, so the government has not
sought to invoke the provisions of the MVRA in this case.
3
First, the VWPA provisions cited by Idema are not
jurisdictional. The VWPA generally authorizes a district court to
order restitution at sentencing. 18 U.S.C. § 3663(a)(1) (West
1995).2 The court may require restitution to be paid within a
specified period, in specified installments, or immediately. Id.§ 3663(f)(1),(3). For the type of sentence imposed on Idema, if the
court orders payment within a specified period or in installments,
the end of the specified period or the last installment must be no
later than five years after release from incarceration. Id.
§ 3663(f)(2)(B).3 This restitution provision simply requires the
district court to ensure, if it determines that restitution should
not be paid immediately, that the final payment be scheduled for no
later than five years after incarceration ends. This provision does
not limit the district court’s jurisdiction to enforce its
restitution order if the defendant fails to comply with its order
and the restitution remains unsatisfied five years after the
defendant completes his term of imprisonment.
Second, the time limitations in the VWPA do not apply to this
case because the district court ordered Idema to pay restitution
2
The VWPA has been amended since 1995. All references to
§ 3663 in this opinion are to the language in effect in 1995.
3
Section 3663 has different deadlines for other types of
sentences. For example, if probation is imposed, restitution
payments cannot be scheduled to be paid after probation ends. 18
U.S.C. § 3663(f)(2)(A).
4
immediately. The time limitations in § 3663(f) apply only when the
district court schedules payments over time or by installments.
Idema was sentenced by the district court to pay the full
amount of restitution immediately on January 11, 1999.4 The
government claims that Idema has failed to comply with the court’s
order and that the restitution component of his sentence remains
unsatisfied. The VWPA did not divest the district court of
jurisdiction in Idema’s criminal case to enforce its restitution
order.
B.
Idema also argues that the VWPA requires the government to file
a separate civil action to enforce a restitution order. In support
of this argument, he cites the VWPA provision allowing the
government to enforce a restitution order “in the same manner as a
judgment in a civil action.” 18 U.S.C. § 3663(h)(1)(B). We again
find Idema’s reliance on the VWPA misplaced.
The VWPA is a criminal statute. It authorizes the district
court to impose restitution at sentencing and also provides that an
“order of restitution may be enforced . . . by the United States .
4
This is Idema’s second appeal. In the first appeal, we
affirmed Idema’s conviction but remanded the case to the district
court to make findings of fact regarding the order of restitution.
United States v. Glosson, 83 F.3d 416 (4th Cir. 1996)(unpublished).
On remand, after making the necessary findings of fact, the
district court ordered Idema to pay restitution immediately.
5
. . in the same manner as a judgment in a civil action.” Id.§ 3663(h)(1)(B). Although this provision allows the government to
pursue restitution by using the same practices and procedures that
would be available in a civil action, it does not purport to require
the filing of a separate civil action to enforce an existing
criminal sentence. Idema has offered no principled basis -- and we
have found none -- to prohibit the government from seeking to
enforce this restitution order against him in the same criminal case
in which it was originally imposed.
C.
Idema next argues that the government is not allowed under the
VWPA to seek recovery on behalf of private victims. We disagree.
The VWPA permits the district court at sentencing to order
“that the defendant make restitution to any victim of [the
defendant’s] offense.” 18 U.S.C. § 3663(a)(1). The Act further
provides that an “order of restitution may be enforced . . . by the
United States.” Id. § 3663(h)(1). Thus, the VWPA authorizes the
district court to award restitution to private victims, and it
authorizes the government to take action to enforce a restitution
order on behalf of private victims.5
5
Idema also argues that the government is not authorized to
recover restitution on behalf of private victims because the
Federal Debt Collection Procedures Act (“FDCPA”) allows the
government to seek recovery only of a debt “owing to the United
States.” 28 U.S.C. § 3002 (3)(B). This argument lacks merit
6
D.
We hold that the district court properly asserted jurisdiction
in Idema’s criminal case to issue writs of garnishment and entertain
other proceedings by the government seeking to enforce the court’s
restitution order. Accordingly, we affirm the district court’s
denial of Idema’s motion to quash the writs of garnishment obtained
by the government in its attempt to enforce the restitution order
on behalf of the private victims of Idema’s fraud.
II.
Idema also appeals the district court’s denial of his motion
to quash several subpoenas issued by the government to individuals
and entities allegedly associated with him. Idema claims that the
subpoenas do not comply with various requirements of the Federal
Rules of Civil Procedure.
Ordinarily, a party does not have standing to challenge a
subpoena issued to a nonparty unless the party claims some personal
right or privilege in the information sought by the subpoena.
Hertenstein v. Kimberly Home Health Care, Inc., 189 F.R.D. 620, 635
(D. Kan. 1999); 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
because it ignores the government’s separate authority under the
VWPA to enforce restitution orders on behalf of private victims.
See 18 U.S.C. § 3663 (a),(h). Moreover, the FDCPA specifically
provides that it “shall not be construed to curtail or limit the
right of the United States under any other Federal law.” 28 U.S.C.
§ 3003(b).
7
AND PROCEDURE § 2459 (1995). Idema has failed to make any showing
that he has a personal right to, or privilege in, the information
being sought in the subpoenas. Thus, he lacks standing to contest
whether the subpoenas were properly issued, and we dismiss this
portion of his appeal. See United States v. Phillips, 185 F.3d 183(4th Cir. 1999)(dismissing appeal for lack of standing).
III.
We affirm the district court’s denial of Idema’s motion to
quash the writs of garnishment. We dismiss Idema’s appeal of the
district court’s denial of his motion to quash the subpoenas.6
AFFIRMED IN PART AND DISMISSED IN PART
6
We have also considered the other arguments raised on appeal
by Idema and find them to be without merit.
8