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IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)

 Plaintiff, )

)

 v. ) CRIMINAL NO.: 2:06-CR-0202-WKW 

)

EUGENE L. CLECKLER, )

)

 Defendant )

RESPONSE TO MOTION TO SUSPEND EXECUTION OF FORFEITURE

COMES NOW, the United States of America, by and through Leura G. Canary,

United States Attorney for the Middle District of Alabama, and responds to Defendant’s

Motion to Suspend Execution of Forfeiture (Doc. # 124) as follows:

I. Defendant’s Motion is premature as the United States has not yet made

application to the court for execution.

The United States is authorized pursuant to the Federal Debt Collection Procedures

Act, as judgment creditor, to levy pursuant to a writ of execution upon “all property in

which the debtor has a substantial nonexempt interest”. 28 U.S.C. 3203(a). Specifically,

28 U.S.C. 3203(c) sets forth the requirements necessary to initiate execution on a debtor’s

property. Prior to levy, the judgment creditor must make application to the court for a

writ of execution, and a subsequent writ of execution must be issued. 28 U.S.C.

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Defendant’s reference to forfeiture proceedings is misplaced. The United States 1

may enforce a judgment pursuant to 28 U.S.C. 3202. As set forth above, 28 U.S.C. 3203

provides one means by which the United States may satisfy the judgment.

 Attached as “Exhibit A” is the Eleventh Circuit opinion, issued as Mandate on 2

March 19, 2008, affirming Defendant’s conviction. Attached as “Exhibit B” is the docket

sheet indicating denial of review by the United States Supreme Court.

 Attached as “Exhibit C” is the docket sheet for Defendant’s currently pending 3

case.

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3203(c)(1). The United States, as judgment creditor, to date, has made no application to 1

the court for a writ of execution to levy on Defendant’s property, and the necessary writ

of execution has not been granted. Therefore, as a practical matter, the relief sought in

Defendant’s Motion to Suspend Execution of Forfeiture is premature as the court cannot

“suspend”execution proceedings which have yet to be initiated.

II. The validity of Defendant’s conviction has been determined and additional

time is unwarranted.

Defendant was convicted on June 29, 2007, and ordered to pay restitution in 

the amount of $317,901.21. Defendant appealed this conviction to the Eleventh Circuit

Court of Appeals on July 5, 2007. The Eleventh Circuit affirmed the conviction on

February 19, 2008, and the United States Supreme Court denied review on June 26,

2008. 

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Defendant currently has a Motion to Vacate pending; however, there is little

question as to the validity of this conviction and little likelihood this conviction will be 

set aside. Moreover, the fact that there is a motion currently pending does not alone 3

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 Defendant’s payment report showing outstanding judgment is attached hereto as 4

“Exhibit D.” 

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entitle Defendant to the relief requested. U.S. v. Coluccio, 19 F.3d 1115 (6 Cir. 1994) th

(holding pending motion before District Court did not entitle pro se defendant automatic

stay against federal government’s execution on personal property); See also, F.T.C. v.

Capitol Choice Consumer Credit, Inc., 2004 WL 5141452 (S.D. FL) (denying motion to

stay execution of money judgment pending appeal and post-trial motions). 

III. The United States may initiate proceedings to execute on eligible property.

Defendant’s restitution payment was due immediately upon entry of judgment.

U.S. v. James 312 F.Supp. 2d 802, 806 (E.D. VA 2004) (restitution due and payable

immediately). Left unsatisfied, the judgment could have been enforced by way of

executing on Defendant’s eligible property long ago. However, the government refrained

from such action in light of Defendant’s representation that he was taking steps to secure

the funds necessary to satisfy the judgment, in full, through the sale of a piece of property. 

Defendant has enjoyed the benefit of the government’s delay now for over a year. 

During this time he has failed to satisfy the judgment through the sale of his property, or

otherwise, and has made no reasonable payment towards this debt. Furthermore, despite 4

the United States’ willingness to provide Defendant with additional time, he now seeks

assistance from the court delaying enforcement, and thus, further postponing satisfaction

of his outstanding obligation.

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Of relevant note, 18 U.S.C. § 3613(a)(1) provides: “upon finding that the 5

defendant is in default on a payment of a fine or restitution, the court may ... enter a

restraining order or injunction, order the sale of property of the defendant ... or take any

other action necessary to obtain compliance with the order of a fine or restitution”. Given

the present circumstances, Defendant would be hard-pressed to rely on this authority for

entry of an injunction in his favor.

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IV. Injunction is not appropriate under the present circumstances.

To the extent the Court interprets Defendant’s request to “refrain from executing”,

or alternatively, “to hold this matter in abeyance for a period of up to six (6) months”, as a

request for preliminary injunction, the request should be denied. Ulloa v. U.S., 2006 WL

1763676, (N.D.N.Y) (interpreting pro se motion to stay as a motion for preliminary

injunction where government had statutory authority to take action). Detrimental to

Defendant’s motion, is the fact that he cites no legal authority in support of injunctive

relief. (See Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 113 S.Ct. 1806

(1993) (denied injunction where applicants provided no legal authority in support). 

Defendant’s only remotely plausible theory for issuance of injunction under the

circumstances in this case would be pursuant to 28 U.S.C. 3202(a), referring to 28 U.S.C.

1651, the All Writs Act. However, the Supreme Court has consistently held that an 5

injunction issued under 28 U.S.C. 1651 is not a matter of right and should be done so

sparingly. Turner, 507 U.S. 1301, 1807; Heart of Atlanta Motel, Inc. v. U.S., 85 S.Ct. 1

(1964). Furthermore, injunction is only appropriate if it is “necessary or appropriate in

aid of [the] jurisdiction” and where “the legal rights at issue are ‘indisputably clear’”.

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Turner at 1807, citing 28 U.S.C. 1651(a). 

Conclusion

For the foregoing reasons, Defendant’s Motion to Suspend Execution of Forfeiture

(Doc. # 124) is due to be denied.

Respectfully submitted this 8 day of August, 2008. th

LEURA G. CANARY

United States Attorney

 By: s/R. Randolph Neeley 

R. Randolph Neeley

Assistant United States Attorney

Bar Number: #9083-E56R

Attorney for Plaintiff/Garnishor

United States Attorney’s Office

Post Office Box 197

Montgomery, AL 36101-0197

Telephone: (334) 223-7280

Facsimile: (334) 223-7418

E-mail: rand.neeley@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on August 8, 2008, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system, and I hereby certify that I have mailed, by

United States Postal Service, a copy of same to the following non-CM/ECF participant(s):

Eugene Cleckler

Reg. No.: # 12009-002

LSCI Butner

P.O. Box 999

Butner, NC 27509

s/R. Randolph Neeley 

Assistant United States Attorney

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