United States v. Welborn, C-79-45-W.

• Court: United States District Courts. 4th Circuit. Middle District of North Carolina
• Citation: 495 F. Supp. 833
• Decision Date: 26 August 1980
• Docket Number: No. C-79-45-W.,C-79-45-W.
• Parties: UNITED STATES of America, Plaintiff, v. Ed WELBORN, Defendant.

495 F. Supp. 833

UNITED STATES of America, Plaintiff, v. Ed WELBORN, Defendant.

No. C-79-45-W.

United States District Court, M. D. North Carolina, Wilkesboro Division.

August 26, 1980.

H. M. Michaux, Jr., U. S. Atty. and Benjamin H. White, Jr., Asst. U. S. Atty., Greensboro, N. C., for plaintiff.

John E. Hall and Michael Randy Lyon of McElwee, Hall, McElwee & Cannon, North Wilkesboro, N. C., for defendant.

MEMORANDUM OPINION AND ORDER

HIRAM H. WARD, District Judge.

This case is before the Court for rulings on the parties' cross-motions for summary judgment, Rule 56, Fed.R.Civ.P., and the plaintiff's motion to dismiss the defendant's counterclaim, Rule 12(b), Fed.R.Civ.P. For the reasons hereinafter stated, the plaintiff's summary judgment motion will be granted, the defendant's motion will be denied, and the counterclaim will be dismissed for lack of subject matter jurisdiction.

The facts are undisputed. In May 1960, the defendant, Ed Welborn, was convicted in a federal court of possessing an unregistered still and illegally carrying on the business of a distiller. See 26 U.S.C. § 5601. He was sentenced to three years imprisonment and fined $1,000. The judgment, entered on May 19, 1960, provided that "the defendant is to stand committed until the fine is paid, or until he is otherwise discharged as provided by law." Complaint, Exhibit A (January 17, 1979). Welborn remained in prison for three years, but did not pay the $1,000 fine. Then, under the provisions of 18 U.S.C. § 3569, he served an additional thirty days and thereafter took a pauper's oath, which allowed him to leave prison in August 1963. He has never paid the $1,000 fine. Plaintiff's Motion For Summary Judgment, Exhibit 1, ¶ 3 (August 28, 1979).

The United States brought this action on January 17, 1979, to collect the $1,000. Welborn answered and counterclaimed, asserting denial of equal protection. The counterclaim, which was filed on February 13, 1979, is against the United States alone and asserts damages in excess of $10,000. Answer, p. 2 (February 13, 1979).

In support of its summary judgment motion, the United States simply points to the undisputed evidence that it has a valid judgment for $1,000 against Welborn and that Welborn has never satisfied the judgment. Welborn responds that, under 18 U.S.C. § 3565 and Rule 69, Fed.R.Civ.P., the government has consented to, and, in any event, is bound by the North Carolina statute of limitations for preserving judgments. Since the government has admittedly failed to follow North Carolina law, see N.C.Gen. Stat. §§ 1-47(1) & 1-306, Welborn argues he is due summary judgment.

Other courts that have decided this type of case have held unanimously that the United States is not bound by any statute of limitations and is entitled to judgment. The leading case is Smith v. United States, 143 F.2d 228 (9th Cir.) cert. denied, 323 U.S. 729, 65 S.Ct. 65, 89 L.Ed. 585 (1944). There, the defendant was convicted in April 1924 and sentenced to a prison term and $10,000 fine; he failed to pay the fine while imprisoned and served an additional thirty days. The government sued in April 1941 to recover the balance due on the judgment. The defendant asserted state statutes of limitations and a federal statute, now codified at 28 U.S.C. § 2462, which purportedly established a five-year limitations period. The court rejected these defenses and affirmed the trial court's grant of summary judgment for the government. The court noted initially that "in the absence of a specific act of Congress to the contrary, state statutes of limitation do not bind the sovereign. . . . It has always been assumed that there is no time limitation for the enforcement of a judgment, whether of fine or imprisonment, rendered upon conviction for crime." 143 F.2d at 229. The court then held the assertedly limiting federal statute applied only to the "time limit within which prosecutions must be commenced . . .. It imposes no time limit upon the enforcement of a penal judgment." 143 F.2d at 229. See United States v. Memphis Retail Package Stores Ass'n, 334 F.Supp. 686, 688 (W.D.Tenn.1971) (28 U.S.C. § 2462 not applicable to criminal fines). Finally, the court held that the defendant's obligation to pay the fine was not abrogated by his having served the additional thirty days as required by 18 U.S.C. § 3569. Accord, Vitagliano v. United States, 601 F.2d 73 (2d Cir. 1979), cert. denied, 444 U.S. 1085, 100 S.Ct. 1043, 62 L.Ed.2d 771 (1980); Castle v. United States, 399 F.2d 642, 644 n. 3 (5th Cir. 1968).

The same circuit reached a like result in Miller v. United States, 160 F.2d 608 (9th Cir. 1947), where the government sued in 1947 to recover on a criminal fine imposed in 1933. The defendant conceded, and the court found, that under the Smith decision, supra, a "judgment for a criminal fine is a cause of action for the recovery of a second judgment." 160 F.2d at 608. The defendant argued, however, that the government was barred from recovery by Rule 69, Fed. R.Civ.P., which required application of the California limitations period on executions. The court disagreed:

Rule 69 of the Federal Rules, supra, makes applicable the California law only as to the remedies of execution and other proceedings `in aid of a judgment.' We do not regard the cause of action for a new judgment as a proceeding in aid of the prior judgment creating the cause of action. Such a cause of action is a substantive right in the United States, not its procedural remedy.

Here the denial of the petition for execution authorized by Rule 69, supra, is not an adjudication that the first judgment is permanently dormant for all purposes. As the cause of action for a second judgment, it could not become dormant to the United States, the judgment creditor, since the first paragraph of Section 685 the California law is not a statute of limitations on that judgment and none has been enacted by Congress.

160 F.2d at 609 (citing Custer v. McCutcheon, 283 U.S. 514, 519, 51 S.Ct. 530, 532, 75 L.Ed. 1239, 1242 (1931)).

The decision in United States v. Jenkins, 141 F.Supp. 499 (S.D.Ga.), aff'd, 238 F.2d 83 (5th Cir. 1956) (per curiam), appeal dismissed, 352 U.S. 1029, 77 S.Ct. 595, 1 L.Ed.2d 598 (1957), provides a detailed and persuasive discussion of the same issue. In Jenkins, the United States sued in 1955 to revive a criminal judgment rendered against the defendant in 1932. The defendant had not paid the fine imposed and had served forty-five additional days pursuant to 18 U.S.C. § 3569. The government had recorded its judgment with a state clerk of court in 1937, but, under state law, the judgment had been dormant since 1944. The defendant asserted the government's claim should be dismissed because Rule 69, Fed.R.Civ.P., required application of the state seven-year limitation period on judgments and because the additional forty-five days imprisonment satisfied the fine imposed. The court granted summary judgment for the United States. It noted the settled rule "that the United States is not bound by State statutes of limitation or subject to the defense of laches in the enforcement of its rights," 141 F.Supp. at 502 (citing United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283, 1385 (1940)); and it explained that

the United States retains its right of action . . . even where there are state statutes . . . barring action on dormant judgments or limitations on a right of action. . . . The Federal Government is controlled by State statute governing the procedure for filing and acting upon executions whether the procedure is actually followed or not. That is to say, State law determines when a Federal judgment becomes dormant but not the substantive right of revival. The fact that the Scire Facias proceeding is a supplementary action does not preclude the revival action here since the action on the dormant judgment is substantive, not procedural.

141 F.Supp. 503.¹ See generally United States v. Baird, 241 F.2d 170 (2d Cir. 1957). As for the defendant's argument that the extension of his sentence abrogated the fine, the court held, as had the court in Smith, that § 3569 had no effect on a criminal defendant's liability for a lawfully imposed fine.

The decision in United States v. Middler, 127 F.Supp. 686 (E.D.Mich.1955), is in accord with the cases just discussed. In Middler, the defendant was convicted and ordered to pay a fine in 1943. He failed to pay the fine, took the pauper's oath, and was released in 1945. The United States sued to recover the fine in 1954. The court held the government was entitled to summary judgment. The court found the five-year limitation period of 28 U.S.C. § 2462 inapplicable since the statute did not enforce a time limitation on a judgment "which is in truth a debt . . .." 127 F.Supp. at 687. The defendant had asserted the Rules of Decision Act, 28 U.S.C. § 1652, as a defense, but the court rejected the argument on the ground that the Act did not apply to the United States when it sued in its own courts. Finally, the court rejected the assertion that 18 U.S.C. § 3565 —a provision cited here by Welborn—required obedience to the applicable state limitations period; it found that § 3565 meant nothing more than the government, in enforcing judgments imposing fines, was not restricted to imprisoning the defendant, but could proceed against the defendant's property, as in civil cases. 127 F.Supp. at 688 (quoting Clark v. Allen, 114 F. 374, 376 (W.D.Va.1902), aff'd, 126 F. 738 (4th Cir. 1903)).

These decisions are well reasoned and persuasive. Welborn has not cited and the Court has not found any opinions rejecting the principle that no limitation period, state or federal, bars the United States from enforcing a judgment on an unpaid criminal fine. See generally Castle v. United States, 399 F.2d at 644 n. 3; 7 Moore's Federal Practice ¶ 69.042 (1972).² The Court finds no merit in Welborn's argument that the six-year...