Opinion
Case No. 2:99-CR-400 TS
December 30, 2003
ORDER DENYING DEFENDANTS' JOINT MOTION TO MODIFY RESTITUTION ORDER
This matter is before the court on defendants Leonardo Caballero's and Flor Caballero's pro se motion entitled "Joint Motion to Stop Payments Order, by this Court on or about 11/2/2000, Until Release from B.O.P. [Bureau of Prisons]." Pro se pleadings must be liberally construed. Ogden v. San Juan County, 32 F.3d 452 (10th Cir. 1994). Accordingly, the court construes the present Motion as a Joint Motion to Modify Restitution Order, pursuant to 18 U.S.C. § 3664(k). That section provides, in part, that the order of restitution shall require that the "defendant shall notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution." It further provides:
The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstance. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interest of justice require.18 U.S.C. § 3664(k).
Defendants apparently attempted to notify the Attorney General of their alleged material change in circumstances by serving the present Motion upon the Assistant United States Attorney who prosecuted their criminal case. See Certificate of Service. There has been no response from the government.
Subsection (e) of § 3664 provides that a defendant has the burden of showing his or her financial resources. A defendant seeking a downward adjustment of restitution payments also has the burden of demonstrating that there has been a material change in his or her economic circumstances that might affect his or her ability to pay. Cani v. U.S., 331 F.3d 1210, 1215 (11th Cir. 2003) (denying requested modification where defendant failed to show economic circumstances have changed since the imposition of his sentence). If there has been a " bona fide change in a defendant's financial condition, either positive or negative," the court may adjust the payments. Cani, 331 F.3d at 1215. However, if such a downward adjustment is ordered, it does not discharge the defendant's obligations to pay restitution.
In the present Motion, Defendants allege that their restitution payments are currently set at $30 per month each. They allege that their circumstances have changed because (1) they no longer receive money from relatives; (2) their health prevents them from accepting higher paying jobs at the prison; and (3) their expenses are currently $130 per month each. They list as expenses $60 a month for each Defendant for telephone calls to family members; $10 for each Defendant for communications between each other; and $60 a month for each Defendant for personal hygiene and laundry expenses. Although they allege they make "less than their assigned monthly payments" they also allege that "there is a possibility of [their restitution payment] going up in the near future,"
The court finds that the information submitted fails to demonstrate that Defendants' economic circumstances have changed in a material way since the imposition of their sentences. Defendants do not provide any information regarding their exact income and its sources prior to the alleged change in circumstance. They provide no information on the status of their prison accounts in the months since their alleged change of circumstances. Surprisingly, Defendants do not even provide the amount of their current or past monthly income from work or other sources. From the limited information that Defendants have alleged, it appears that their discretionary expenses of telephone calls to family are more than double the amount of their current $30 a month restitution payments. Accordingly, Defendants fail to meet their burden of showing a material change of circumstance under § 3664(k).
Because the present Motion does not meet the Defendants' burden of demonstrating that their circumstances have changed sufficient to warrant a modification of the restitution order, the court will deny their motion, without prejudice.
For future reference, at a minimum, a defendant's allegations of material change in circumstance should include supporting documentation. For example, such documentation should include the certified records of the Defendant's Inmate Financial Responsibility Program and the trust fund account statement, or the institutional equivalent, for the six months prior to the alleged change of circumstance and for all months since the alleged change of circumstance. In addition, each moving defendant should explain how the documentation demonstrates a material change of circumstance in their financial condition compared to their financial condition at the time when their payment schedule was set. An allegation of a physical ailment that has fundamentally impacted a defendant's economic circumstances since the imposition of his or her sentence should be supported by documentation from appropriate medical personnel,
Based upon the foregoing, it is therefore
ORDERED that defendants Leonardo Caballero's and Flor Caballero's pro se "Joint Motion to Stop Payments Order, by this Court on or about 11/27 2000, Until Release from B.O.P." is construed as a Joint Motion to Modify Restitution Order pursuant to 18 U.S.C, § 3664(k). It is further
ORDERED that Leonardo Caballero's and Flor Caballero's Motion to Modify Restitution Order, pursuant to 18 U.S.C. § 3664(k), is DENIED, WITHOUT PREJUDICE. U.S. v. Golino, 956 F. Supp. 359, 366 (E.D.N.Y. 1997). GOOD for history but it was a new provision when Golino was decided and its not good on requiring court rather than probation to specify schedule, in apparent contradiction of practice in this juris.