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United States v. Drapeau

United States District Court, W.D. Washington, Tacoma

May 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD LEROY DRAPEAU, Defendant/Judgment Debtor, and WASHINGTON STATE DEPT. OF RETIREMENT SYSTEMS, Garnishee.

          ORDER DENYING GARNISHEE'S OBJECTION TO WRIT OF GARNISHMENT

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.

         Before the Court is Garnishee Washington State Department of Retirement Systems's (“Department”) objections to the writ of garnishment issued in this case. Dkts. 8, 11 (collectively “objections”). The Court has considered the pleadings filed in support of and in opposition to the objections and the remainder of the file and hereby denies the Department's objections for the reasons stated herein.

         I. FACTUAL & PROCEDURAL HISTORY

         On December 18, 2009, the Honorable Robert J. Bryan entered a criminal judgment against defendant/judgment debtor Edward LeRoy Drapeau (“Mr. Drapeau”), adjudging him guilty of one count of wire fraud and one count of mail fraud. United States v. Drapeau, 09-cr-5275-1 RJB, Dkt. 25. The Court sentenced Mr. Drapeau to 18 months' imprisonment and ordered him to pay $502, 475.78 in restitution.[1] Id. at 5.

         On December 12, 2018, the United States filed an application for writ of garnishment (“writ”). Dkt. 1. The United States sought to enforce the writ to collect from the Department as garnishee on the belief that:

[T]he Garnishee owes or will owe money or property to the Defendant/Judgment Debtor's spouse, Terry Lynn Drapeau (Mrs. Drapeau), or is in possession, custody or control of property in which Mrs. Drapeau holds a substantial nonexempt interest. Defendant/Judgment debtor has a presumptive community property interest in all property and income acquired by his spouse, Mrs. Drapeau, during their marriage.

         Dkt. 1 at 2. On December 18, 2018, the Court entered an Order authorizing the issuance of the writ, Dkt. 3, and on December 20, 2018, the Clerk of Court issued the writ, Dkt. 4.

         On December 20, 2018, the United States served the Department with the writ and its associated pleadings by U.S. mail. Dkt. 6. On December 24, 2018, the Department received the writ by mail. Dkt. 8 at 1.

         On January 3, 2019 the Department answered the writ, indicating it had control over a teacher's retirement account belonging to Mrs. Drapeau valued at $155, 000. Dkt. 8 at 3. However, the Department objected to the service of the writ and claimed property exemptions to the United States' ability to collect Mrs. Drapeau's retirement benefits. Id. at 6-10. The Department detailed its arguments regarding service and collection in a legal memorandum attached to its answer filed by the Washington State Attorney General's Office. Id.

         On March 25 and 28, 2019, the United States re-served all parties with the writ and related documents via personal delivery by the United States Marshals Service. See Dkts. 12 (the Department), 13 (the Washington State Office of Attorney General), 14 (Mr. Drapeau), 15 (Mrs. Drapeau).

         On April 4, 2019, the Department filed additional objections. Dkt. 11. In its April 4 pleading, the Department incorporated its earlier objections, continued to contest service, and asserted that the United States' attempt to cure service by personal delivery of the writ failed because such service fell outside the 90-day deadline for service of a complaint under Fed.R.Civ.P. 4(m). Id.

         II. DISCUSSION

         A. Service of Writ

         Under the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A et seq., the United States may enforce a criminal restitution order “in accordance with its civil enforcement powers.” 18 U.S.C. § 3613(a). In turn, the Federal Debt Collection Practices Act (“FDCPA”), 28 U.S.C. § 3001 et seq., sets forth the civil enforcement procedures the United States uses to recover restitution debts. 28 U.S.C. § 3001(a)(1); see also United States v. Mays, 430 F.3d 963, 965-66 (9th Cir. 2005) (FDCPA applies to United States' collection of criminal restitution debts under MVRA). As authorized by ยง 3613(a) of the MVRA, the United States obtained the writ of garnishment under ...


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