United States District Court, D. Nevada
G. BOGDEN United States Attorney District of Nevada, MARK E.
WOOLF, Assistant United States Attorney, Attorneys for the
MOTION FOR JUDGMENT DEBTOR EXAMINATION
A. LEEN UNITED STATES MAGISTRATE JUDGE.
United States of America moves for an order requiring
Defendant Johnny Ray Taylor (“Defendant”) to
appear before a United States Magistrate Judge at a time and
place set by the Court for a judgment-debtor examination.
This motion is based upon the attached memorandum of points
and authorities, the attached Declaration, and the pleadings
and papers on file herein. A proposed order is attached.
OF POINTS AND AUTHORITIES
October 16, 2013, a criminal judgment was entered against
Defendant for Tax Evasion in violation of 26 U.S.C. §
7201. The judgment imposed restitution based on the plea
agreement, wherein Defendant agreed to “pay restitution
to the Internal Revenue Service . . . in the total amount of
$117, 559.82 under 18 U.S.C. 3663(a)(3).” ECF No. 6 at
4:19-20. The figure does not include interest or penalties
that may accrue under 18 U.S.C. § 3612(f). Id.
order of restitution may, among other things, be enforced in
accordance with 18 U.S.C. § 3664(m), which permits
enforcement “in the manner provided for in . . .
subchapter B of chapter 229 of this title[.]”
Subchapter B of chapter 229 corresponds to 18 U.S.C.
§§ 3611-3615, of which 18 U.S.C. § 3613
provides: “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.” 18 U.S.C.
§3613(a). Subject to very few exceptions, a judgment
enforcing restitution “may be enforced against all
property or rights to property” of the person owing
restitution. Id. An order of restitution “is a
lien in favor of the United States on all property and rights
to property of the person . . . as if the liability of the
person . . . were a liability for a tax assessed under the
Internal Revenue Code of 1986.” 18 U.S.C. §§
enforcement under Federal law is pursuant to the Federal Debt
Collection Procedures Act (“FDCPA”), 28 U.S.C.
§ 3001 et seq., which provides “civil
procedures for the United States to recover a judgment on a
debt.” 28 U.S.C. § 3001(a)(1); see also
28 U.S.C. § 3002(3) (“Debt means - an amount that
is owing to the United States on account of . . .
restitution[.]”). In pursuing remedies under the FDCPA,
the United States “may have discovery regarding the
financial condition of the debtor in the manner in which
discovery is authorized by the Federal Rules of Civil
Procedure on a claim for a debt.” 28 U.S.C. §
Federal Rules also permit discovery “[i]n aid of the
judgment or execution” pursuant to the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 69(a)(2);
see also 1st Technology, LLC v. Rational Enterprises
Ltda, 2007 WL 5596692 (D. Nev.) citing
Fuddruckers, Inc. v. KCOB I, LLC, 31 F.Supp.2d 1274,
1278 (D. Kan. 1998). As succinctly stated in British
Intern. Ins. Co., Ltd. v. Sequros La Republica, S.A.,
200 F.R.D. 586 (W.D. Tex. 2000), “[t]he scope of
post-judgment discovery is broad, ‘the judgment
creditor must be given the freedom to make a broad inquiry to
discover hidden or concealed assets of the judgment
debtor.'” Id. at 588. Post-judgment
discovery is critical in obtaining information relating to
the “existence or transfer of the judgment debtor's
assets, ” id. at 589, and represents a
“distinct phase of the litigation.” Danning
v. Lavine, 572 F.2d 1386, 1390 (9th Cir. 1978). One of
several available post-judgment discovery tools is a
judgment-debtor examination, which permits “[a]
judgment creditor, at any time after the judgment is entered,
is entitled to an order from the judge of the court requiring
the judgment debtor to appear and answer upon oath or
affirmation concerning his or her property[.]” NRS
21.270(1); see also Fed. R. Civ. P. 69(a)(1). The
scope of a judgment-debtor examination necessarily tracks the
broad scope and focus of post-judgment discovery.
the United States seeks an order requiring Defendant to
appear for a judgment-debtor examination and answer
questions, under oath, regarding the extent of his property,
including, but not limited to, “any present or future
interest, whether legal or equitable, in real, personal
(including choses in action), or mixed property, tangible or
intangible, vested or contingent, wherever located and
however held (including community property and property held
in trust (including spendthrift and pension
trusts))[.]” 28 U.S.C. § 3002(12).
OF MARY BOOKER IN SUPPORT OF UNITED STATES' MOTION FOR
JUDGMENT DEBTOR EXAMINATION
Booker, declare pursuant to 28 U.S.C. § 1746 as follows:
1. I am
a Legal Assistant in the Financial Litigation Unit of the
United States Attorney's Office for the District of
Nevada. I have custody of the records held in this office
pertaining to collection in this matter.
Criminal Judgement was entered against Defendant Johnny Ray
Taylor on October 17, 2013. The Criminal Judgment imposed
criminal monetary penalties in the sum of ...