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United States v. Taylor

United States District Court, D. Nevada

January 25, 2017


          DANIEL G. BOGDEN United States Attorney District of Nevada, MARK E. WOOLF, Assistant United States Attorney, Attorneys for the United States.



         The 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.


         On 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. at 5:1-2.

         An 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).[1] 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. §§ 3613(c), (d).

         Generally, 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. § 3015(a).

         The 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.

         Here, 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).


         I, Mary 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.

         2. A Criminal Judgement was entered against Defendant Johnny Ray Taylor on October 17, 2013. The Criminal Judgment imposed criminal monetary penalties in the sum of ...

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