U.S. v. Thornton, 81-1304

• Citation: 217 U.S. App. D.C. 248,672 F.2d 101
• Decision Date: 24 February 1982
• Docket Number: No. 81-1304,81-1304
• Parties: UNITED STATES of America v. Benjamin T. THORNTON, Prince George's County, Maryland, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 101

672 F.2d 101

217 U.S.App.D.C. 248

UNITED STATES of America v. Benjamin T. THORNTON, Prince George's County, Maryland, Appellant.

No. 81-1304.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 28, 1981.

Decided Feb. 16, 1982.

As Amended Feb. 24, 1982.

Steven M. Gilbert, Associate County Atty., Upper Marlboro, Md., with whom Robert B. Ostrom, County Atty., and Steven G. Chappelle, Associate County Atty., Prince George's County, Upper Marlboro, Md., were on brief for appellant.

Sylvia Royce, Asst. U. S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Joseph F. McSorley and A. Patricia Frohman, Asst. U. S. Attys., Washington, D.C., were on brief for appellee.

Before MacKINNON, WALD and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge, MacKINNON.

MacKINNON, Circuit Judge:

Prince George's County (the "County") in contiguous Maryland appeals from a default judgment entered against it by the United States in the United States District Court of the District of Columbia ("District Court"). The County's Director of Finance (Brown) in his official capacity came into possession of $15,439.24 as a result of a police seizure in a raid upon Benjamin T. Thornton's residence in Prince George's County in connection with a State of Maryland gambling investigation. Following the seizure no charges against Thornton have survived, but the seized money, except $2,900 returned to Thornton, has nevertheless been retained by the County's Director of Finance.

Thornton owes the United States $10,000 in fines adjudged in the District Court for the District of Columbia in connection with an earlier gambling conviction in that court. In an effort to collect the fine imposed, the United States duly filed the $10,000 judgment for record in the Office of Recorder of Deeds for the Government of the District of Columbia (App. 4). Thereafter the United States caused a Writ of Execution to issue commanding the United States Marshal to recover said sum from the authorities in Prince George's County. On October 21, 1980 the Marshal served a "Writ of Attachment on Judgment" and Interrogatories on "William R. Brown, Jr., Director of Finance (Prince George's County) ... Garnishee." On November 10, 1980 ¹ the County Attorney's Office of Prince George's County, Treasury Division, admitted by answer filed to holding $15,439.24 of the credits of Benjamin T. Thornton (App. 9). The United States thereafter moved for Judgment of Condemnation against $10,000 of the credits belonging to Thornton. When the County failed to make timely response to this motion the District Court on February 6, 1981, entered a Judgment of Condemnation and on February 10, 1981, the County filed a belated Motion for Relief from Judgment alleging that the United States District Court had no jurisdiction over the County. This request was denied by the District Court on March 2, 1981, (App. 26) and on March 11, 1981, the County appealed to this Court from the Court's Order to pay the "$10,000 to the United States" (Rec. 176) in satisfaction of Thornton's fine (Rec. 174). We affirm the Judgment and Order of the United States District Court.

I

On December 2, 1976, Thornton was convicted in the United States District Court for the District of Columbia on three counts of violating the gambling laws of the United States and of the District of Columbia. On February 1, 1977, in addition to receiving prison sentences for two violations of 18 U.S.C. § 4205(b)(2), the federal offenses, he was also fined $5,000 on each of the two counts. ² To date, Thornton has not paid those fines which total $10,000.

In January, 1980, Thornton was paroled and subsequently the Collections Unit of the United States Attorney's office requested Thornton to provide a schedule of payments for the fine. Thornton failed to produce a satisfactory schedule.

On July 22, 1980, the County police, acting on a tip from the FBI that Thornton was again engaged in gambling activities, arrested Thornton and seized $15,439 from his home. No charges were eventually pressed by Prince George's County or any Maryland authorities that were related to that search and seizure. ³ The $15,439, ⁴ however, remained in the custody of the County's Director of Finance and the United States, as above described, has sought to obtain $10,000 of the balance that remains in the custody of the Director of Finance to apply to the payment of the fine imposed by the Judgment in Thornton's criminal case.

II

The manner of enforcing a judgment imposing a criminal fine in favor of the United States is provided for by 18 U.S.C. § 3565, Fed.R.Civ.P. 69(a), and 28 U.S.C. § 2413. These statutes and rule provide-First, the United States Criminal Code:

In all criminal cases in which judgment or sentence is rendered ... the fine ... may be enforced by execution against the property of the defendant in like manner as judgments in civil cases....

18 U.S.C. § 3565 (emphasis added).

Second, the Federal Code of Judicial Procedure:

A writ of execution on a judgment obtained for the use of the United States in any court thereof shall be issued from and made returnable to the court which rendered the judgment, but may be executed in any other State, in any Territory, or in the District of Columbia.

28 U.S.C. § 2413.

Finally, the Federal Civil Rules provide:

Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent it is applicable.

Fed.R.Civ.P. 69(a) (emphasis added). Whenever the Federal Rules provide that the laws of the state in which the district court is held are made applicable, the law of the District of Columbia governs proceedings in the United States District Court for the District of Columbia. ⁵ Read together, the statutes and rules set forth above as applicable to the claim of the United States in this proceeding provide that the United States must secure a writ of execution to enforce the judgment from the United States District Court that rendered the judgment, must execute it "against the property of the defendant in like manner as judgments in (Federal) civil cases," and may proceed "in any other state" in accordance with the practice and procedure prescribed by the laws of the District of Columbia, i.e., it may levy execution against Thornton's money in Maryland to enforce the judgment obtained in the United States District Court for the District of Columbia. United States v. Lord Electric Co., 43 F.Supp. 12 (W.D.Pa.1942) followed this procedure. ⁶ The supplementary proceedings in aid of execution of the judgment contemplated by Fed.R.Civ.P. 69(a) authorize the United States to proceed under D.C.Code § 16-501, et seq., entitled "Attachment and Garnishment Generally" and particularly "Subchapter II. Attachment and Garnishment After Judgment in Aid of Execution." D.C.Code § 16-541 to 556. ⁷ Garnishment may be used by a creditor to obtain satisfaction of the indebtedness out of credits of the debtor in the possession of a third person. Such proceedings are frequently referred to as a mode of attachment though there are substantial differences between attachment and garnishment. Attachment and garnishment exist only by statute and it is the statute that determines the extent, nature and scope of the process. 6 Am.Jur.2d 561, 567, Attachment and Garnishment, §§ 2, 9.

On July 24, 1980, the United States filed its judgment for record with the Office of Recorder of Deeds, Government of the District of Columbia (App. 4). On the same date a Writ of Execution was issued by the Clerk of the United States District Court of the District of Columbia (App. 5) in the case of United States of America v. Benjamin T. Thornton, Criminal Court No. 75-438. On the 21st of October, 1980, the Clerk issued a Writ of "Attachment on Judgment" (App. 7) and a "Notice" of garnishment with interrogatories (App. 8), all directed to William R. Brown, Jr., the "Director of Finance, Treasury Division" for Prince George's County who has possession of the money seized from Thornton. (App. 7). The writ, notice and interrogatories were served on Brown in October, 1980, (County Brief, p. 2) and on November 3, 1980, he answered the interrogatories as follows:

INTERROGATORIES

1. Were you at the time of the service of the writ of attachment, served herewith, or have you been, between the time of such service and the filing of your answer to this interrogatory, indebted to the defendant? If so, how, and in what amount?

Answer: No.

2. Had you, at the time of the service of the writ of attachment, served herewith, or have you had between the time of such service and the filing of your answer to this interrogatory, any goods, chattels, or credits of the defendant in your possession or charge? If so, what?

Answer: Prince George's County has in its possession $15,439.24.

(App. 8).

It had become clear well before December 1, 1980, that Thornton was not to be tried on any gambling charges in Maryland that involved any of the money seized in the raid on his house. Because of this Thornton had filed for return of the money in Prince George's County District Court and the United States also filed a Statement of Claim in that court for $10,000 of the money. In that proceeding, the County District Court, implicitly recognizing the validity of the claim of the United States, directed the County to return to Thornton all money seized in excess of $10,000. Approximately $2,900 was returned to Thornton by the County pursuant to this order.

However, the $10,000 due the United States has remained in...