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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Criminal Law
Satisfied Customers: 11714
Experience:  19+ Years of Legal Practice in Criminal Law.
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I need to know what specific Federal statute states the limits

Customer Question

I need to know what specific Federal statute states
the limits of power and authority a probation officer
has in requesting spousal assets and income. In a letter
I received from Federal Probation, they are requesting
disclosure of all assets I own or control. They do not
define “control” so before I reply to this letter, I need an
idea of what they have a reasonable right to know and
what they don’t. They also want a list of assets sold or
transferred since my arrest, how does this relate to
assets owned and then sold or transferred by my spouse?
Do they have a legal right and claim to her assets or property?
Please provide case examples or Statutes to support
any opinions offered on this matter. Here is a link/url to
where the letter received may be viewed.
http://www.mediafire.com/?sharekey=
28bed26cbaa3d13b8ef1259ff1b60e81d211eaef1af94afdb8eada0a1ae8665a
Submitted: 5 years ago.
Category: Criminal Law
Expert:  AlexiaEsq. replied 5 years ago.

Dear Gulliver,

 

Probation was originally provided for under the Federal Probation Act. This Act was relaced by the Sentencing Reform Act of 1984 (18 U.S.C.A. §§ 3551-3556). As you know, Probation is a form of sentence. Here are the Duties of the Sentencing Commision, which refer to Conditions of Probations section 3563,which addresses your concerns:

 

Sec. 3563. Conditions of probation


(a) Mandatory Conditions. - The court shall provide, as an
explicit condition of a sentence of probation -

(1) for a felony, a misdemeanor, or an infraction, that the
defendant not commit another Federal, State, or local crime
during the term of probation;

(2) for a felony, that the defendant also abide by at least one
condition set forth in subsection (b)(2), (b)(3), or (b)(13),
unless the court finds on the record that extraordinary
circumstances exist that would make such a condition plainly
unreasonable, in which event the court shall impose one or more
of the other conditions set forth under subsection (b);

(3) for a felony, a misdemeanor, or an infraction, that the
defendant not unlawfully possess a controlled substance;

(4) for a domestic violence crime as defined in section 3561(b)
by a defendant convicted of such an offense for the first time
that the defendant attend a public, private, or private nonprofit
offender rehabilitation program that has been approved by the
court, in consultation with a State Coalition Against Domestic
Violence or other appropriate experts, if an approved program is
readily available within a 50-mile radius of the legal residence
of the defendant;

(5) for a felony, a misdemeanor, or an infraction, that the
defendant refrain from any unlawful use of a controlled substance
and submit to one drug test within 15 days of release on
probation and at least 2 periodic drug tests thereafter (as
determined by the court) for use of a controlled substance, but
the condition stated in this paragraph may be ameliorated or
suspended by the court for any individual defendant if the
defendant's presentence report or other reliable sentencing
information indicates a low risk of future substance abuse by the
defendant;

(6) that the defendant -

(A) make restitution in accordance with sections 2248, 2259,

2264, 2327, 3663, 3663A, and 3664; and

(B) pay the assessment imposed in accordance with section

3013;

(7) that the defendant will notify the court of any material
change in the defendant's economic circumstances that might
affect the defendant's ability to pay restitution, fines, or
special assessments;

(8) for a person described in section 4042(c)(4), that the
person report the address where the person will reside and any
subsequent change of residence to the probation officer
responsible for supervision, and that the person register in any
State where the person resides, is employed, carries on a
vocation, or is a student (as such terms are defined under
section 170101(a)(3) of the Violent Crime Control and Law
Enforcement Act of 1994); and

(9) that the defendant cooperate in the collection of a DNA
sample from the defendant if the collection of such a sample is
authorized pursuant to section 3 of the DNA Analysis Backlog
Elimination Act of 2000.
If the court has imposed and ordered execution of a fine and placed
the defendant on probation, payment of the fine or adherence to the
court-established installment schedule shall be a condition of the
probation.


(b) Discretionary Conditions. - The court may provide, as further
conditions of a sentence of probation, to the extent that such
conditions are reasonably related to the factors set forth in
section 3553(a)(1) and (a)(2) and to the extent that such
conditions involve only such deprivations of liberty or property as
are reasonably necessary for the purposes indicated in section
3553(a)(2),
that the defendant -

(1) support his dependents and meet other family
responsibilities;

(2) make restitution to a victim of the offense under section
3556 (but not subject to the limitation of section 3663(a) or
3663A(c)(1)(A));

(3) give to the victims of the offense the notice ordered
pursuant to the provisions of section 3555;

(4) work conscientiously at suitable employment or pursue
conscientiously a course of study or vocational training that
will equip him for suitable employment;

(5) refrain, in the case of an individual, from engaging in a
specified occupation, business, or profession bearing a
reasonably direct relationship to the conduct constituting the
offense, or engage in such a specified occupation, business, or
profession only to a stated degree or under stated circumstances;

(6) refrain from frequenting specified kinds of places or from
associating unnecessarily with specified persons;

(7) refrain from excessive use of alcohol, or any use of a
narcotic drug or other controlled substance, as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802),
without a prescription by a licensed medical practitioner;

(8) refrain from possessing a firearm, destructive device, or
other dangerous weapon;

(9) undergo available medical, psychiatric, or psychological
treatment, including treatment for drug or alcohol dependency, as
specified by the court, and remain in a specified institution if
required for that purpose;

(10) remain in the custody of the Bureau of Prisons during
nights, weekends, or other intervals of time, totaling no more
than the lesser of one year or the term of imprisonment
authorized for the offense, during the first year of the term of
probation;

(11) reside at, or participate in the program of, a community
corrections facility (including a facility maintained or under
contract to the Bureau of Prisons) for all or part of the term of
probation;

(12) work in community service as directed by the court;

(13) reside in a specified place or area, or refrain from
residing in a specified place or area;

(14) remain within the jurisdiction of the court, unless
granted permission to leave by the court or a probation officer;

(15) report to a probation officer as directed by the court or
the probation officer;

(16) permit a probation officer to visit him at his home or
elsewhere as specified by the court;

(17) answer inquiries by a probation officer and notify the
probation officer promptly of any change in address or
employment;

(18) notify the probation officer promptly if arrested or
questioned by a law enforcement officer;

(19) remain at his place of residence during nonworking hours
and, if the court finds it appropriate, that compliance with this
condition be monitored by telephonic or electronic signaling
devices, except that a condition under this paragraph may be
imposed only as an alternative to incarceration;

(20) comply with the terms of any court order or order of an
administrative process pursuant to the law of a State, the
District of Columbia, or any other possession or territory of the
United States, requiring payments by the defendant for the
support and maintenance of a child or of a child and the parent
with whom the child is living;

(21) be ordered deported by a United States district court, or
United States magistrate judge, pursuant to a stipulation entered
into by the defendant and the United States under section
238(d)(5) of the Immigration and Nationality Act, except that, in
the absence of a stipulation, the United States district court or
a United States magistrate judge, may order deportation as a
condition of probation, if, after notice and hearing pursuant to
such section, the Attorney General demonstrates by clear and
convincing evidence that the alien is deportable; or

(22) satisfy such other conditions as the court may impose.


(c) Modifications of Conditions. - The court may modify, reduce,
or enlarge the conditions of a sentence of probation at any time
prior to the expiration or termination of the term of probation,
pursuant to the provisions of the Federal Rules of Criminal
Procedure relating to the modification of probation and the
provisions applicable to the initial setting of the conditions of
probation.


(d) Written Statement of Conditions. - The court shall direct
that the probation officer provide the defendant with a written
statement that sets forth all the conditions to which the sentence
is subject, and that is sufficiently clear and specific to serve as
a guide for the defendant's conduct and for such supervision as is
required.
(e) Results of Drug Testing. - The results of a drug test
administered in accordance with subsection (a)(5) shall be subject
to confirmation only if the results are positive, the defendant is
subject to possible imprisonment for such failure, and either the
defendant denies the accuracy of such test or there is some other
reason to question the results of the test. A defendant who tests
positive may be detained pending verification of a positive drug
test result. A drug test confirmation shall be a urine drug test
confirmed using gas chromatography/mass spectrometry techniques or
such test as the Director of the Administrative Office of the
United States Courts after consultation with the Secretary of
Health and Human Services may determine to be of equivalent
accuracy. The court shall consider whether the availability of
appropriate substance abuse treatment programs, or an individual's
current or past participation in such programs, warrants an
exception in accordance with United States Sentencing Commission
guidelines from the rule of section 3565(b), when considering any
action against a defendant who fails a drug test administered in
accordance with subsection (a)(5).

 

Expert:  AlexiaEsq. replied 5 years ago.

Continued (as my screen was freezing up due to the length of that statutue):

 

Because your wife's assets are closely linked with yours and/or your financial/economic circumstances, changes to her situations are indicative of changes to yours. Ergo, this request is not beyond the scope of the express provisions. In terms of limitations of the power to invade you and your families privacy, there is the limitation that the "conditions [set] are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section
3553(a)(2)
,..."

 

Of course, our Constitutional Right against Cruel and Unusual Punishment is a right you retain during probation (which is a sentence) as well.

 

 

Hope this helps to clarify.


 

 

Sincerely,

 

Stephanie Joy

 

 

Customer: replied 5 years ago.
Thank you for your input and the links. I was aware and had read those statutes in
addition to Title 18 Part II Chapter 227 Subchapter D § 3583 but from what I have read, they do not address a core concern. If the Government truly had a legal position from which spousal assets could be touched then ponder this. If an offender is violated and returned to incarceration would the courts/Probation Dept/BOP/DOJ have the authority to garnish spousal wages or require the spouse to maintain the restitution payments the offender was making prior to having his/her supervised release retracted.

None of the statutes I have read indicate with any language that spousal assets or income can be attached or levied to satisfy restitution let alone use the word "spouse" when speaking of the offender and restitution.

Also, those statutes do not define how resititution will be made other than to state the offender is obliged to do so. If I divorced my wife today, how then could the court asses her income or assets?
Customer: replied 5 years ago.
This is 18 USC 3663

(a)
(1)
(A) The court, when sentencing a defendant convicted of an offense under this title, section 401, 408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act (21 U.S.C. 841, 848 (a), 849, 856, 861, 863) (but in no case shall a participant in an offense under such sections be considered a victim of such offense under this section), or section 5124, 46312, 46502, or 46504 of title 49, other than an offense described in section 3663A (c), may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim’s estate. The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.
(B)
(i) The court, in determining whether to order restitution under this section, shall consider—
(I) the amount of the loss sustained by each victim as a result of the offense; and
(II) the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.

Here is is vague and not specific, to copy an excerpt:

the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate
Customer: replied 5 years ago.
18 USC 3664 has the closest language to what the probation Dept used but it still
is not as sweeping as the Probation Dept language. Which is the deciding factor?
Probation Dept or the USC code?
Expert:  AlexiaEsq. replied 5 years ago.

Actually, in financial embezzlement cases and the like, they can certainly confiscate a spouses assets, when it is evident that the wrongdoing spouse used these illegally gotten assets to fund the spouse in any way.

 

And remember, the financial disclosure is not always due to restitition requirements, particular in a financial matter - it could be required to determine if the financial misdoing is still going on, fraudulent transfers are still taking place, etc.

 

There is not express limitation in their discretionary requests about them not being able to seek info related to family member.

 

There is not requirement that they can only ask about her assets if they plan on, and have reason to take her assets anyway. But even if there was, the fact that fraudulent conveyances take place frequently between family members to hide funds (let's look at Madoff), let's them in the discretionary door.

 

I'm wondering, however, if one decided to take the full jail sentence rather than probation, would things be different, i.e. more restricrtive?

 

 

Hope this helps to clarify.


 

 

Sincerely,

 

Stephanie Joy

 

 

Expert:  AlexiaEsq. replied 5 years ago.
Incidentally, I couldn't get the letter from your link, so I haven't seen it.
Expert:  AlexiaEsq. replied 5 years ago.
I'm not seeing an inconsistency here: The code section 3664 with regard to restitution is purposely broad, allowing for much, and apparently they are taking that to heart in their demands.
Customer: replied 5 years ago.
Just to give you a little background into my case.

In 2005 I plead no-contest to wire fraud, now before you think I knocked over Fort Knox let me explain. In 1999 I worked for a software giant as a Technical Manager and had the
authority to send replacement media to customers. I sent 33 pieces to friends and family. The transmission of the request went through the phone line which violated the FCC so my then employer handed the case over to the FBI. There was no monetary gain and no echange of money. My Judgment in a Criminal case lists only the standard restrictions
and none of the kind I have seen for common financial crimes.

My guess is the sole purpose for the request of my/our financials is to establish
restitution after my supervised release ends in 5 months. The sections that concern me
are the areas asking about expected assets, future earnings and what will I sell to satisfy the restitution. My wife utilized a 401k loan with a lower apr to pay off her auto loan. My concern is they may now see her car as a free and clear asset to be sold.

I would not allow that to happen, this is why I asked if I violated and was incarcerated again would they continue going after sposal assets. I do not think this is the case. I think the power of their authority would end while I was incarcerated.
Customer: replied 5 years ago.
http://www.mediafire.com/download.php?zzuytm22vzn


Cut and paste this into your browser, should bring you to a download for "letter3"
Expert:  AlexiaEsq. replied 5 years ago.

So, the 'wrong' you committed, correct me if I am wrong, is that you took company IT property (software?) and gave it to others 33 times. While you didn't charge them for it, you essentially 'stole' it, right? (OBviously you thought it wasn't a big taking and didn't hurt the co., as your family/friends probably wouldn't have spent the $$ to buy it, so it is not like you deprived the co. of customers, perhaps.) Incidentally, I'm so sorry the reprecussion are so severe - but they certainly are cracking down, bootleg software, yes?

 

Remember, the judgement is not the sentence, and probation has broad discretion.

 

Did you have a sentence of restitution??? Apparently so - but I guess you do not yet know what that amount of restitution will be?

 

Honestly, I do not expect them to take your wife's car, particularly if she only has one. Now, if you guys suddenly had 5 Benz's in the new 5 car garage, well obviously.

 

No, their power would likely not end if you are incarcerated - you would still have the restititution sentence and the requirement to divulge financial information. And your sending yourself back to jail would be an unwise thing to do to your wife/family, all over a car, big deal. What they are currently requesting is permitted by law, so you really need to comply, or else get charged with violation of probation etc.

 

Being secretive about your and your family's assets will only make you appear to be guilty of something, such a non-disclosure. Why add to your problems? You are close to this being over and getting on with your life. You admit you broke the law (even if you don't agree with the sentence) and even if you didn't have such bad intent.

 

It is not hard to get another car, don't ruin your life for the 'principle' of the matter - of which you may not even be correct - an 18 year old can scrape up enough to get a car - I'm sure your wife can too. NOt that I'm suggesting this will come to be, at all, but let's put it into perspective. Why compound your own problems, which are largely behind you with just a little more patience on your part needed, but restarting them. You owe it to your family, IMHO.

 

The other reason could be to see if you are actually 'selling' the IT material - unexpected moneys coming into the household would be evidence of that - not conclusive of course, but no evidence is conclusive, obviously.

 

Please, never use your 401k to borrow unless it is life or death, unless a reputable expert advised you to do so. 401ks have protections against creditors, cars do not.

Customer: replied 5 years ago.
Thank you....

I worked at one of the software giants west coast offices and sent an order to replace
defective CD's to our order fulfillment center for processing. That order was done through a phone line. The Judge at sentencing agreed to the plea agreement I signed with the Prosecutor for $25k. The Judge then determined the amount of time I would serve as well as the term of supervised release.

I pay every month for restitution and for the first 18 months of supervised release I was employed paying about $100 per month. I was then layed off and have not secured a new job although I keep looking. With national unemployment of 8.1%, employers do not need to hire ex felons. Heck, they can turn away people with no record and a BA because the person behind them also has no record and an MBA. While unemployed I am only able to pay about $50 per month. The probation officer I have now has never been to the house, never met me in person and I only spoke with her via telephone 2 times one year ago.

My sole concern right now is for my wife and her solidarity. We have three cars but one has 200k on the odometer and is about to die. This past winter we had a contractor that botched a job he did for us. My parents loaned us the money to hire a second contractor to redo all of the work. We then went after the first contractor (without a lawyer) and it looks like he might settle with us to cover the costs we paid the second contractor but he wants to pay us back over time. That money has to go back to my parents but the probation officer might see it as our income and expect it for the resitution. This concerns me as that money belongs to my parents.

That report the probation officer sent me, on paper, we have three cars and nice settlement coming. Translation: They're loaded and can pay big!
Expert:  AlexiaEsq. replied 5 years ago.

The best you can do it get your proofs. Cancelled check from parents to you, preferably with notation in the memo line is helpful to show where and why. If the money you originally used for the first contractor was disclosed, and not required to be paid for restitution, that should be OK, presumably. Also, the $25k, was that a fine or restitution? Restitution should be payment ultimately back to the victim co, yes.

 

OK, so your old car is about to die, why not take it off the road, so each only have one car at your disposal?

 

A loan from your parents probably will not take precedence over your debt to the 'system' I'm afraid - regardless of its legitimacy (kind of like tax bills and child support). So, whether part of you crime bill debt is paid or your parents debt is paid, you will still be reducing your total debt by that amount, so it really shouldn't matter. I would try to work with them to get on or stay on a good payment plan. $25k can be knocked off in good time (once you get a job of course, I know if has to be very tough being laid off, click here for some considerations and options at the end, when you need to think outside the box).

 

I know the felon status is a job killer, time to really think out side the box. I feel for you, the punishment does not appear to fit the crime, if only for the part about the felony status!

 

 

Expert:  AlexiaEsq. replied 5 years ago.

One more thing, the government has grand ways of learning about all of our finances and failing to disclose does not mean that they won't learn of them, but it does put you at risk for prosecution if an affidavit or under oath statement is false, by ommission or otherwise.

 

Was there a question that we missed, or do you follow up? Please let me know.

 

 

Otherwise, I hope this helps to clarify and...


 

 

Sincerely,

 

Stephanie Joy

 

 

Customer: replied 5 years ago.
Sorry I have not replied sooner, have been busy.

I Googled some information and found a case in Indiana [Cause No. IP 94-57-CR-01 (T/F) and IP 02-81-CR-01 (T/F)] that casts some doubt as to the Governments ability to probe assets of anyone other than the accused.

I know there must be case law examples in WESTLAW that I do not have access to that support my position, at a minimum, examples where the Government was not given such a wide birth in the pursuit of spousal assets. It is this that I am after, I am looking for information to promote my ajenda and not the Governments. I already have experience with an attorney that for lack of a better way to put it, advocated for the prosecution and I am looking for someone here that is more familiar with advocating for the defendant, eben if that means digging for case law to support a losing argument in the hopes to win the Judges favor.
Expert:  AlexiaEsq. replied 5 years ago.

Hi Gulliver,

 

I just spent the last 1/2 hour chasing this case for you and reviewing it:

 

IP 94-0057-CR /

IP 02-81-CR-01

 

It is NO way discusses that which you were hoping, so apparently you never read it? It in no way casts doubt as the government's ability to probe assets of anyone other than the accused. Keep in mind, you are not the accused, you are the convicted, so if cases concerning defendant's not yet convicted would not be on point or applicable.

 

If you have another case you intended or want reviewed, please include the direct link AND cut and paste the parts you consider relevant and I will consider looking at them.

 

Also, yes, you can do search queries on Westlaw, although they will charge for the search. You have the same access to Westlaw, a subscription service that I would have, if I chose to purchase a day's access or a weeks access of the pertinent area of law/jurisdiction. They do not require you to be an attorney. If you would like me to then do some work with your Westlaw account, if you choose to establish one, I may consider it, after we see what occurs here.

 

I can not speculate if your previous lawyer was rooting for the prosecution or not being diligent in his research that you likely charged for. However, please know that if there was no case law supporting that which you seek, he would be doing his lawful duty under the law to be frank with you and not blow hot smoke to create false hope. There are limits to what may be investigated, as noted in the statutes you requested that I provided you, a while back.

 

Please recall, I do not receive credit for time spent and efforts expended on your behalf until you click ACCEPT.

 

 

I believe I have answered your additional question and I hope you a better understanding of your legal issue as a result. As you know, I am only the messenger and can not create favorable law if it doesn't exist, so please don't hold it against me if the legal result is not what you wish. If your question was in fact answered appropriately please click the GREEN "ACCEPT" button NOW, in order that it be recognized as such and I receive credit for my work from the company. This will not cost you anything, if you already deposited to the company for this service. Your promptness is greatly appreciated. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you need additional related follow up on this particular question afterwards, don't hesitate to Reply and I'm happy to help you. And if you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of post. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break, or if it is late at night, I may have to go get some shut eye til morning, but rest assured, I'll be back for you. Thanks!

 

Sincerely,

 

Stephanie Joy

 

 

Customer: replied 5 years ago.
I wrote down the wrong case information.
I had dozens of browser tabs open and wrote down the wrong information.
I am trying to back track and get the correct one.

It said something to the effect that the prosecution tried to establish that the records
of a defendants attorney were to be disclosed because the attorney was holding assets for the defendant. To be honest, the prosecution had a very compelling case and I thought for sure the motion would be granted but the Judge denied it.

That is the cliff notes version, I need to find the actual ruling.
Expert:  AlexiaEsq. replied 5 years ago.

Gulliver, attorney/client privilege is a special privilege - there is no equivalent amongst spouses.

 

Incidentally, as you are not apparently satisfied with my efforts, I invite you to OPT me out so another expert, if they feel to spend some time here with you, can take over.

AlexiaEsq., Managing Attorney
Category: Criminal Law
Satisfied Customers: 11714
Experience: 19+ Years of Legal Practice in Criminal Law.
AlexiaEsq. and 4 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.
As I have already left feedback for you, please leave feedback for me when your able! Thanks!
Expert:  AlexiaEsq. replied 5 years ago.

Hi Gulliver, thank you, XXXXX XXXXX Please let me know as well if you would like me to look at that case when you find it.

 

Sincerely,

Stephanie

Customer: replied 5 years ago.
I have spent all last night and this morning---retaking the steps
and search querys I used before but am unable to locate that case.

I remember the Judge dismissed the prosectutions attempt to force the
attorney to produce his personal financials but it wasn't because of attorney
client privledge, it was another reason. One I thought could fit for me...if only
I could find that case!
Expert:  AlexiaEsq. replied 5 years ago.
Hey, if I get some spare time, I will search the net resources I have as well. Do you remember anything about it? A name is XXXXX XXXXX better memory jogger than a case number, if you think you remember any names???
Customer: replied 5 years ago.
I found the article...

National Gas Pipeline Company of America v. Energy Gathering, Inc., 2 F.3d 1397 (5th Cir. 1993) cert. deniedXXXXX 882 (1994). In that case, a creditor asked the district court to force the defendant’s attorney to reveal all documents relevant to the defendant’s assets. The district court held a hearing where the government demonstrated that the attorney and the debtor were related in the following ways: they had maintained a joint brokerage account; they had shared an interest in a condominium; the debtor had assigned rights in a pipeline to the attorney; the attorney was a trustee for defendant, and the attorney had represented the debtor in his divorce. The district court ordered the attorney to produce every document he had relating to the defendant and to produce his own personal tax returns for the years in question. The attorney refused and was held in contempt of court.
On appeal of the contempt order, the Fifth Circuit held that the district court did not have the broad powers which it sought to assert. The court did have the limited power, in the given circumstances, to require the attorney to turn over records regarding the client’s own financial holdings pursuant to Fed.R.Civ.P. 69(a), but it did not have a broad, inherent power to order non-parties such as the attorney to produce documents relative to his own financial condition:
Potent as it was, however, the bill of discovery could not be used to obtain documents (or other discovery) from someone who was not a party. Thus, although federal courts are vested with certain inherent discovery powers owning to the equitable power of Chancery courts to issue bills of discovery, we conclude that there is no broad, general inherent power to order a non-party beyond the district to produce documents.
Id. at 1409 (internal citations omitted). Thus, the attorney’s personal tax records and financial information were outside the reach of the judgment creditor. To the extent the creditor could show evidence that the attorney was an agent or "alter ego" of the defendant, the court concluded that his personal financial records would be discoverable.
Customer: replied 5 years ago.
It goes on to add....


Discovery and collection efforts against family members suspected of holding assets of a defendant have also become common practice in recent years. In one such case, the defendant was convicted and sentenced to twenty years in prison and a $100,000 fine. See Baldwin v. United States, 805 F.Supp. 1026 (S.D. Fla. 1992). The government filed a lien against his primary residence which he owned with his wife as tenants by the entirety. At the time of the litigation, the home had been sold and the money was in escrow. The question before the court was whether enforcement of criminal fines creates an exception to the general rule that money judgments against one co-tenant are not entitled to lien status as against real property held in tenancy by the entirety. The parties agreed that as to regular judgment creditors, the rule under Florida law was that judgment creditors could not reach the property held in tenancy by the entirety. The government argued, however, that because the fine collection statute made a criminal fine like a tax lien, they should be allowed to seize the house. The government argued by analogy to federal forfeiture statutes that the federal tax collection laws should pre-empt the state law protecting tenancies by the entirety. The court rejected this contention nothing that the fine collection statutes, unlike federal forfeiture statutes, does not have explicit preemption clauses. This is one of the very few cases where the government was unsuccessful.
In United States v. Lampien, 89 F.3d 1316 (7th Cir. 1996), the defendant was ordered to make restitution in the amount of $498,972.94 through monthly payments of $350 and a lump sum payment from the sale of a house. The defendant attempted to disclaim her interest in the house so that it would pass directly to her son and frustrate collection efforts. Under Wisconsin law, the disclaimer was held to be invalid and the court ordered her to execute a quitclaim deed transferring the property directly to the victim. The defendant argued that the state’s homestead law protected her property from the restitution order and in the alternative argued that the order exceeded the court’s discretionary powers under the VWPA. The court disagreed and held that the VWPA pre-empted the Wisconsin homestead law.
The Supreme Court has expressly held that the tax collection law which is incorporated into section 3613(c) allows the government to attach all property of the defendant, including homestead property. United States v. Rodgers, 461 U.S. 677, 691-94 (1983). "The incorporation of § 7403 of the Internal Revenue Code into 18 U.S.C. § 3613(c) thus reiterates the basic premise of section 3613(a), which, when read in conjunction with section 3663(h)(1)(A), provides that upon the district court’s entry of a valid restitution order, a lien against all property belonging to the defendant arises in favor of the United States, and is enforceable to the full extent necessary to satisfy the defendant’s restitution obligation." United States v. Lampien, 89 F.3d 1316, 1320 (7th Cir. 1996). The Seventh Circuit goes on to say that a "state law that exempts any property belonging to a defendant from execution to satisfy a restitution order is in conflict with the enforcement provisions of the federal statute." Id. at 1321.
Lampien and Baldwin are consistent with each other. In Lampien, the court held that the VWPA applies to all property of the defendant whereas in Baldwin the court was saying that state law regarding the protection of innocent third parties from collection efforts should be honored by federal law unless that federal law had a specific preemption clause.



But this doesn't speak to spousal assets that are strctly held by the spouse and
are not jointly owned.
Expert:  AlexiaEsq. replied 5 years ago.

National Gas Pipeline Company of America v. Energy Gathering, Inc., 2 F.3d 1397 (5th Cir. 1993) cert. deniedXXXXX 882 (1994). -- Unfortunately this holding is not applicable as it pertains to a civil matter and differing codes entirely.

 

See Baldwin v. United States, 805 F.Supp. 1026 (S.D. Fla. 1992). - this concerns trying to collect on tenancy by the entirely property with spouse, not disclosure requirements. Your issue is solely (at this point) disclosure permitted by statute, expressly. If it every came down to the gov't trying to take your spouses assets, that would be an entirely different issue than you have now.

 

Again, they have not tried to take your spouses assets, they only want to know about them. The only way they can investigate if they were actually your assets illegitimately passed to your spouse is by knowing about them and checking out the history, papertrail.

 

So unfortunately, at this point, these cases don't help you - at this point anyway. Perhaps later, but your issue is disclosure, not collections, at present.

 

Hope this helps to clarify.

 

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