12-4392-cr 

United States v. Hyde 

 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

 

 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED 

AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS 

COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A 

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY 

ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT 

ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 

 At a stated term of the United States Court of Appeals for 

the Second Circuit, held at the Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 14th

day of May, two thousand fourteen. 

 

PRESENT: JOHN M. WALKER, JR., 

DENNY CHIN, 

 CHRISTOPHER F. DRONEY, 

 Circuit Judges. 

 

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UNITED STATES OF AMERICA, 

 Appellee, 

 

 -v- 12-4392-cr 

 

KENNEDY J. HYDE, 

 Defendant-Appellant. 

 

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FOR APPELLEE: Edward R. Broton and Brenda K. Sannes, 

Assistant United States Attorneys, for 

Richard S. Hartunian, United States 

Attorney for the Northern District of 

New York, Syracuse, New York. 

 

FOR DEFENDANT-APPELLANT: Paul Camarena, North & Sedgwick Law, 

Chicago, Illinois. 
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 Appeal from the United States District Court for the 

Northern District of New York (Mordue, J.). 

 UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

 Defendant-appellant Kennedy Hyde appeals from the judgment 

of the district court entered November 2, 2012, convicting him, 

following a jury trial, of making false statements under penalty of 

perjury in connection with a Title 11 bankruptcy proceeding, in 

violation of 18 U.S.C. § 152(2)-(3). We assume the parties' 

familiarity with the facts and procedural history of the case, which 

we summarize as follows: 

 On October 26, 2012, the district court sentenced Hyde to 

27 months' imprisonment and three years' supervised release. The 

district court imposed four special conditions of supervised 

release.

 Hyde appeals only with respect to the fourth special 

condition of supervised release.1 This condition reads:

 

1

 Hyde filed his notice of appeal on November 9, 2012, after the 

district court entered its original judgment on November 2, 2012. The district 

court did not determine the amount of restitution until it entered an amended 

judgment on February 22, 2013. Hyde did not, however, file a new notice of 

appeal from the amended judgment. The government does not contest the timeliness 

of Hyde's appeal. While Hyde's notice of appeal was likely effective with 

respect to the original judgment, we conclude that it "ripened into an effective 

notice" of appeal from the amended judgment as well. United States v. 

Kapelushnik, 306 F.3d 1090, 1093-94 (11th Cir. 2002); see also Zeno v. Pine 

Plains Cent. Sch. Dist., 702 F.3d 655, 663 n.6 (2d Cir. 2012)("Although 

[appellant] filed a premature notice of appeal, because the district court 
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Until restitution is paid in full, the defendant 

is restrained from transferring any asset with a 

value of $500 or more, unless it is necessary to 

liquidate and apply the proceeds of such property 

to the order of restitution. 

App. at 24. 

 Hyde contends that the fourth special condition 

constitutes garnishment and violates the Consumer Credit Protection 

Act (the "CCPA"), 15 U.S.C. § 1671 et seq. Hyde further argues that 

the condition prevents him from paying basic living costs –- such as 

rent -- as the condition bars him from "transferring any asset with 

a value of $500 or more." Appellant's Br. at 3. We disagree, for 

two reasons.2

 First, the fourth condition is not tantamount to 

garnishment as contemplated by the CCPA. Garnishment is "any legal 

or equitable procedure through which the earnings of any individual 

are required to be withheld for payment of any debt." 15 U.S.C. 

§ 1672(c). The garnishment of "earnings" refers to the withholding 

of "periodic payments of compensation and does not pertain to every 

asset that is traceable in some way to such compensation." In re 

Kokoszka, 479 F.2d 990, 997 (2d Cir. 1973), aff'd sub nom. Kokoszka 

 entered an amended final judgment before the appeal was heard and [appellee] 

suffered no prejudice, the jurisdictional defect has been cured."). 

2

 The government argues that plain error review applies because Hyde 

failed to object to the special conditions at sentencing. Hyde argues that 

"relaxed plain error review" is appropriate under our decision in United States 

v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010). We need not decide the question of 

the standard of review, however, because the issue presented is largely a matter 

of law and we conclude that Hyde's argument fails even under de novo review. 
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v. Belford, 417 U.S. 642 (1974). An order does not constitute 

garnishment if it "simply directs restitution payments" and "d[oes] 

not require payment of restitution from a specific asset." United 

States v. Jaffe, 417 F.3d 259, 265-66 (2d Cir. 2005) (upholding 

restitution order in amount that could require defendant to sell 

home, as order did not require payment from any specific asset). 

Here, the fourth special condition neither requires the withholding 

of any of Hyde's earnings nor compels Hyde to draw restitution 

payments from a specific asset. The condition thus does not 

constitute garnishment and falls outside the scope of the CCPA. 

See id. 

Second, Hyde misreads the plain language and purpose of 

the condition. The condition does not prevent him from spending 

money to pay for basic living expenses, such as rent. Rather, the 

condition bars him from transferring assets with a value of $500 or 

more unless it is necessary to liquidate any such asset to pay 

restitution. See also United States v. Green, 618 F.3d 120, 122-24 

(2d Cir. 2010) (considering context in which challenged supervised 

release condition was imposed to guide interpretation of condition's 

language). The plain language of the condition therefore does not 

prohibit Hyde from spending money for housing, transportation, and 

subsistence; it merely says that he cannot liquidate assets except 
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to pay restitution. We find no error here that warrants 

vacatur or reversal. 

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 We have considered Hyde's remaining arguments and conclude 

they are without merit. For the foregoing reasons, we AFFIRM the 

judgment of the district court. 

 FOR THE COURT: 

 Catherine O'Hagan Wolfe, Clerk