United States v. Ghassan Elashi

Case: 14-10751 Document: 00513077345 Page: 1 Date Filed: 06/12/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10751 FILED
June 12, 2015
Lyle W. Cayce
CONSOLIDATED WITH 14-10800 Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
GHASSAN ELASHI,
Defendant
v.
MAJIDA SALEM,
Appellant
Appeals from the United States District Court
for the Northern District of Texas
Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Appellant Majida Salem appeals the district court’s final order of
garnishment that orders her to pay the balance of the $3,500 special
assessment that was part of her husband’s criminal conviction and sentence.
Because the Mandatory Victims Restitution Act authorizes the Government to
garnish Salem’s salary, we must AFFIRM.
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FACTS AND PROCEEDINGS
In 2009, Appellant Majida Salem’s husband, Ghassan Elashi, was
convicted of 35 counts of violating various federal laws. The district court
sentenced Elashi to 65 years in prison and ordered him to pay a $3,500 special
assessment. As of October 28, 2013, Elashi had paid only $587.12 of the
assessment, resulting in a $2,912.88 balance.
Because Elashi’s remaining debt was set to expire on May 27, 2014, see
18 U.S.C. § 3013(c), the Government filed an Application for Writ of
Garnishment on November 5, 2013. The district court issued a writ of
garnishment to Brighter Horizons Academy, Salem’s employer, instructing the
school to withhold 25% of Salem’s take-home pay. See 15 U.S.C. § 1673.
Brighter Horizons was served, and it filed an answer stating that Salem’s
monthly take-home pay is $3,362.12.
On December 3, 2013, Salem moved to quash the writ of garnishment,
arguing that Texas state law exempted her wages from garnishment. The
district court, however, denied Salem’s motion, holding that state-law
exemptions do not apply to the enforcement of federal criminal debt. The
district court entered a final order of garnishment on July 2, 2014. Salem
timely appealed. 1
STANDARD OF REVIEW
This court reviews a garnishment order for abuse of discretion. United
States v. Clayton, 613 F.3d 592, 595 (5th Cir. 2010). A district court necessarily
abuses its discretion if its conclusion is based on an erroneous determination
1Salem filed two notices of appeal. She first appealed from the district court’s denial
of her motion to quash. She appealed again from the district court’s final order of
garnishment. This court consolidated the two appeals. We have jurisdiction to hear this
appeal under 28 U.S.C. § 1291. See United States v. Branham, 690 F.3d 633, 634–35 (5th Cir.
2012) (per curiam) (holding that only a final order of garnishment, but not an order denying
a motion to dissolve a writ of garnishment, is a final appealable order under 28 U.S.C. § 1291).
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of the law. Id. The controlling issue here is one of statutory interpretation,
which is a question of law that the court reviews de novo. Id.
DISCUSSION
The United States is enforcing the federal mandatory special assessment
that was imposed at Elashi’s sentencing. Special assessments are collected in
the same manner as criminal fines and are therefore treated in the same
manner as federal tax liens. See 18 U.S.C. §§ 3013(b), 3613(c). The Department
of Justice filed a Notice of Lien in the public records in Dallas County to perfect
the lien on Elashi’s property.
Although federal law creates the lien on Elashi’s property, state law
defines the property interests to which the lien attaches. See United States v.
Rodgers, 461 U.S. 677, 683 (1983) (“[I]t has long been an axiom of our tax
collection scheme that, although the definition of underlying property interests
is left to state law, the consequences that attach to those interests is a matter
left to federal law.”). Texas is a community property state. The Texas Family
Code defines community property as “property, other than separate property,
acquired by either spouse during marriage.” Tex. Fam. Code Ann. § 3.002. All
property that the spouses possess during their marriage is presumed to be
community property, id. § 3.003, and each spouse has an undivided, one-half
interest in all community assets, Medaris v. United States, 884 F.2d 832, 833
(5th Cir. 1989).
Community property is further classified as either solely managed
community property or jointly managed community property. Solely managed
community property is “the community property that the spouse would have
owned if single, including . . . personal earnings” and three other categories
that are not relevant to this appeal. Tex. Fam. Code Ann. § 3.102(a)(1). All
other property is generally jointly managed community property. Id. § 3.102(c).
Ordinarily, Texas law does not allow the creditor of one spouse to garnish the
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non-debtor spouse’s solely managed community property. See id. § 3.202(b).
With two exceptions that are not relevant here, the Texas Constitution also
states that “[n]o current wages for personal service shall ever be subject to
garnishment.” Tex. Const. art. XVI, § 28. The question on appeal is whether
these state-law exemptions apply to the federal government when it is
collecting special assessments. The district court held that they do not. We
agree with the district court.
A comparison of the relevant federal provisions—the Mandatory Victims
Restitution Act (“MVRA”), 18 U.S.C. § 3613, and the Federal Debt Collection
Practices Act (“FDCPA”), 28 U.S.C. §§ 3001–3308—helps to resolve this issue.
The MVRA authorizes the United States to collect federal criminal debts “in
accordance with the practices and procedures for the enforcement of a civil
judgment under Federal law or State law.” 18 U.S.C. § 3613(a). The MVRA
also broadly permits the United States, “[n]otwithstanding any other Federal
law,” to enforce a special-assessment order “against all property or rights to
property of the person fined.” Id. (emphasis added). Section 3613 further states
that the only property exempt from garnishment is property that the United
States cannot seize to satisfy the payment of federal income taxes. See id.
Finally, the MVRA likewise explains that federal criminal debts are to be
treated in the same manner as federal tax liens. See id. § 3613(c). Thus, under
the MVRA, the Government could garnish Salem’s wages.
In this case, the Government proceeded under the FDCPA, which
authorizes the Government to garnish property “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). Under the FDCPA, however, “[c]o-
owned property,” like Salem’s salary, is “subject to garnishment to the same
extent as co-owned property is subject to garnishment under the law of the
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State in which such property is located.” Id.; see also 28 U.S.C. § 3010(a) (“The
remedies available to the United States under this chapter may be enforced
against property which is co-owned by a debtor and any other person only to
the extent allowed by the law of the State where the property is located.”). In
other words, if this case were proceeding solely under the FDCPA, the
Government could not garnish Salem’s salary because Texas law does not allow
it.
Compared in this manner, the MVRA and the FDCPA have conflicting
provisions on which property is exempt from collection. The MVRA contains a
limited number of exemptions, none of which is relevant here. In contrast, the
FDCPA bases its exemptions on the relevant state law. Thus, if the FDCPA
controls, Salem’s salary is exempt from garnishment; if, on the other hand, the
MVRA controls, then the Government may garnish Salem’s salary. As might
be expected, the Government argues that the MVRA controls, while Salem
argues that the FDCPA controls. As discussed below, both Fifth Circuit
precedent and the statutes themselves demonstrate that the MVRA controls.
Dealing with the same issue in the context of enforcing a federal tax lien,
this court has held that state law does not exempt community property from
federal tax collection efforts. See Medaris, 884 F.2d at 833–34. In particular,
the court held that the IRS was entitled to attach the debtor’s one-half interest
in his wife’s income—her solely managed community property—because her
income was a community asset. Id. Texas’s exemption for solely managed
community property was inapplicable to the federal government because the
Internal Revenue Code states that state laws cannot exempt property from
federal tax collection efforts. Id. (citing 26 U.S.C. § 6334(c)); see also United
States v. Mitchell, 403 U.S. 190, 204–05 (1971) (holding that state-law
exemptions are not effective against the United States when it attempts to
enforce a federal tax lien under the Internal Revenue Code). Instead, a court
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could consult state law only to determine what property interests the debtor
had. See Medaris, 884 F.2d at 833. Federal law then defined which property
was subject to attachment for the unpaid taxes. See id. (noting that a tax lien
“attaches against ‘all property and rights to property . . . belonging to’ the
person liable for taxes” (quoting 26 U.S.C. § 6321)); see also United States v.
Craft, 535 U.S. 274, 278 (2002) (“The federal tax lien statute itself creates no
property rights but merely attaches consequences, federally defined, to rights
created under state law.” (internal quotation marks and citation omitted));
Drye v. United States, 528 U.S. 49, 58 (1999) (“We look initially to state law to
determine what rights the taxpayer has in the property the Government seeks
to reach, then to federal law to determine whether the taxpayer’s state-
delineated rights qualify as ‘property’ or ‘rights to property’ within the compass
of the federal tax lien legislation.”).
Salem attempts to distinguish Medaris by noting that it was a tax case
that did not involve the FDCPA. The MVRA, however, explicitly states that
fines, including special assessments, are to be treated in the same manner as
tax liens. See 18 U.S.C. §§ 3013(b), 3613(c). Like the enforcement of a tax lien
under the Internal Revenue Code, the United States may enforce a judgment
imposing a fine against all of the property in which the debtor has an interest.
Compare 26 U.S.C. § 6321 (“If any person liable to pay any tax neglects or
refuses to pay the same after demand, the amount . . . shall be a lien in favor
of the United States upon all property and rights to property . . . belonging to
such person.” (emphasis added)), with 18 U.S.C. § 3613(a) (“[A] judgment
imposing a fine may be enforced against all property or rights to property of the
person fined . . . .” (emphasis added)). See United States v. Nat’l Bank of
Commerce, 472 U.S. 713, 719–20 (1985) (“The statutory language ‘all property
and rights to property,’ . . . is broad and reveals on its face that Congress meant
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to reach every interest in property that a taxpayer might have.” (emphasis
added) (quoting 26 U.S.C. § 6321)).
This court has applied the reasoning of Medaris in the context of
collecting federal criminal debts. In United States v. Loftis, this court first
recognized that the MVRA “makes a restitution order enforceable to the same
extent as a tax lien.” 607 F.3d 173, 179 n.7 (5th Cir. 2010) (citing 18 U.S.C.
§ 3613(c)). After recognizing that state-law exemptions do not apply under the
MVRA, the court then concluded that the district court had correctly held that
the United States could garnish the debtor’s one-half interest in community
property that was solely managed by his non-debtor wife, including her
retirement savings account. Id. (citing 28 U.S.C. § 3003(b)(1)). Similarly, in
United States v. DeCay, this court held that the MVRA authorizes the United
States to garnish a defendant’s retirement plan benefits, even when those
benefits cannot be garnished under other federal and state laws. 620 F.3d 534,
543 (5th Cir. 2010). Again, the court emphasized that state- and federal-law
exemptions outside those listed in § 3613(a) do not apply to the collection of
federal criminal debt. Id. at 539–43. Furthermore, if state constitutional and
statutory law exempt assets from collection, the court held that those state
laws are preempted by federal law. Id. at 543. In sum, these cases demonstrate
that the United States’ judgment liens, whether for federal taxes or federal
criminal debt, attach to the following community property defined under Texas
law: (1) all of the debtor’s solely managed community property; (2) all of the
couple’s jointly managed community property, including the non-debtor
spouse’s undivided one-half interest in the property; and, important here,
(3) the debtor’s one-half interest in his non-debtor spouse’s solely managed
community property, including her income. See Loftis, 607 F.3d at 178–79 &
n.7; Medaris, 884 F.2d at 833–35.
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Salem first attempts to distinguish Loftis and DeCay by noting that they
dealt with restitution orders, not special assessments. Despite the differences
between the two types of criminal debt, however, the MVRA treats both
restitution and special assessments in the same manner. See 18 U.S.C.
§§ 3013(b), 3613(a), (f). Salem next argues that the MVRA is inapplicable
because the Government elected to proceed under the FDCPA, not the MVRA.
This argument fails for two reasons. First, it is the MVRA that authorizes the
Government to proceed under the FDCPA; it is therefore inaccurate to say that
the MVRA is inapplicable as a matter of law. See 18 U.S.C. § 3613(a). Second,
the Government cited the MVRA as a basis for its application for a writ of
garnishment in the district court. Thus, there is no waiver or forfeiture to
consider.
Salem also relies on two unpublished Fifth Circuit opinions. Neither
supports her position. First, in United States v. Seymour, this court relied on
Mississippi property law to determine what ownership interest, if any, the wife
of a criminal defendant had in a joint bank account. 275 F. App’x 278, 280–81
(5th Cir. 2008) (per curiam). The court in Seymour looked to state law only to
determine what property interests the defendant and his wife had in the bank
account, but not to determine whether those assets were exempt from
garnishment. 2 See id. Ultimately, after concluding that the wife had not
demonstrated that she had a property interest in the bank account under
Mississippi law, the court held that the district court erred in allowing the
government to garnish only half of the account, instead of allowing it to garnish
the entire account. See id.
2 The Eleventh Circuit similarly relied on state law in United States v. Duran, 701
F.3d 912, 915–16 (11th Cir. 2012) (per curiam) (remanding so that the district court could
determine “the respective ownership interests, if any,” of the parties).
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The court similarly looked to state law in United States v. Aguirre, 476
F. App’x 333 (5th Cir. 2012) (per curiam). There, the court affirmed the district
court’s denial of a motion for relief from foreclosure when the wife of a criminal
defendant failed to establish that the property was her solely managed
community property. Id. at 335. As a result, the government was entitled to all
of the foreclosure proceeds from the property because, under Texas law,
community property that is solely or jointly managed by the debtor (not the
debtor’s spouse) is subject, in its entirety, to the debtor’s liabilities. See id.
(citing Loftis, 607 F.3d at 178). Thus, neither of the cases that Salem cites
supports her argument that the FDCPA’s state-law limitations apply in her
case. Once state-law property interests are defined, federal law controls the
consequences.
Section 3613’s “notwithstanding” clause underscores the conclusion that
the state-law limitations in the FDCPA are inapplicable when the United
States is enforcing a federal criminal debt. Section 3613(a) states that
“[n]otwithstanding any other Federal law . . . , a judgment imposing a fine may
be enforced against all property or rights to property of the person fined.” 18
U.S.C. § 3613(a) (emphasis added). This court has interpreted this
“notwithstanding” clause as “signal[ing] a clear Congressional intent to
override conflicting federal law.” DeCay, 620 F.3d at 540; cf. Cisneros v. Alpine
Ridge Grp., 508 U.S. 10, 18 (1993) (“[T]he 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.”);
United States v. Novak, 476 F.3d 1041, 1046–49 (9th Cir. 2007) (en banc)
(holding that even though ERISA’s anti-alienation provision conflicts with
§ 3613(a) of the MVRA, the MVRA resolves this conflict by specifying that all
property is covered “[n]otwithstanding any other Federal law” (alteration in
original) (quoting 18 U.S.C. § 3613(a)). Thus, even though the MVRA and the
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FDCPA have conflicting provisions on the applicability of state-law property
exemptions, the MVRA controls.
In reply, Salem argues that § 3613’s “notwithstanding” clause did not
implicitly repeal the state-law limitations in the FDCPA. She also notes that
§ 3613 explicitly states that the exemptions contained in the FDCPA, 28 U.S.C.
§ 3014, do not apply to the enforcement of a federal criminal judgment. See 18
U.S.C. § 3613(a)(2). According to Salem, because § 3613 specifically bars
applying the exemptions in one part of the FDCPA (28 U.S.C. § 3014) in
criminal cases, other garnishment limitations in the statute, including the
state-law limitation in 28 U.S.C. §§ 3010(a) and 3205(a), should apply in
criminal cases.
Although Salem’s expressio unius argument is not unfounded, it conflicts
with the “notwithstanding” clause, which this court has already construed as
controlling when faced with conflicting federal law. See DeCay, 620 F.3d at 540.
Moreover, Salem admits that the nearly identical “notwithstanding” clause in
the Internal Revenue Code, see 26 U.S.C. § 6334(c), bars the application of
state-law exemptions in the federal tax context. 3 Finally, the FDCPA clarifies
3 The parties also offer competing interpretations of § 3003(b)(2) of the FDCPA.
Section 3003(b)(2) states that the FDCPA “shall not be construed to curtail or limit the right
of the United States under any other Federal law or any State law . . . to collect any fine,
penalty, assessment, restitution, or forfeiture arising in a criminal case.” 28 U.S.C.
§ 3003(b)(2). The Government argues that § 3003(b)(2) supports its position that the FDCPA’s
state-law limitation does not apply to the enforcement of federal criminal debt. Salem, in
contrast, believes that § 3003(b)(2) simply means that the limitations in the FDCPA do not
prevent the government from employing other statutory collection procedures that may be
available.
Salem’s interpretation is consistent with the FDCPA’s legislative history. The law was
enacted “to create a comprehensive statutory framework for the collection of debts owed to
the United States government.” H.R. Rep. No. 101-736 (1990), available at 1990 WL 200442.
Although the Act did not eliminate state-law collection mechanisms as options, the Act
ultimately sought to transition away from the “patchwork of State laws governing collection
procedures.” Id. Nevertheless, even though Salem’s interpretation of § 3003(b)(2) may be
correct, it does not override the “notwithstanding” clause in the MVRA or the provision
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that, “[t]o the extent that another Federal law specifies procedures for
recovering on a claim or a judgment for a debt arising under such law, those
procedures shall apply to such claim or judgment to the extent those
procedures are inconsistent with this chapter.” 28 U.S.C. § 3001(b). Thus, when
the FDCPA’s procedures conflict with the procedures laid out in another
federal law, it is the other procedures—here, the procedures in the MVRA—
that must apply.
In sum, both the relevant statutes and the caselaw support the
Government’s position that state-law exemptions are inapplicable when the
United States is enforcing a federal criminal debt. The Government is therefore
entitled to garnish Elashi’s one-half interest in Salem’s solely managed
community property, including her Brighter Horizons salary, to satisfy
Elashi’s special assessment.
CONCLUSION
For these reasons, we AFFIRM the district court’s final order of
garnishment.
stating that federal criminal debt is treated in the same manner as a federal tax lien. See 18
U.S.C. § 3613(a), (c).
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