* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11185

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

AFFIONG EKONG

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:05-CV- 810

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Affiong Ikpeme Ekong, federal prisoner # 31386-177, was convicted of

health care fraud and was ordered to pay restitution in the amount of $896,737.

The Government filed an application for writ of garnishment upon Ekong’s

interest in pension benefits held by the Dallas County Hospital District,

Supplemental Retirement Plan (the Plan). The district court ordered that the

writ of garnishment be issued. On August 29, 2005, the Plan answered,

admitting that it held, for the benefit of Ekong, employer matching funds in the

United States Court of Appeals

Fifth Circuit

F I L E D

December 21, 2007

Charles R. Fulbruge III

Clerk
No. 06-11185

2

amount of $19,745.58, which were immediately distributable. Ekong timely filed

her opposition to the application for writ of garnishment. The district court

denied Ekong’s objections and entered a final order of garnishment. Ekong gave

timely notice of her appeal. 

Ekong has moved for appointment of counsel. The motion is DENIED.

See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). 

Ekong contends that there was no justification for requiring immediate

payment because the criminal judgment specified that restitution be paid in

installments. This argument is without merit. “The [Mandatory Victim

Restitution Act (MVRA)] provides the Government authority to enforce victim

restitution orders in the same manner that it recovers fines and by all other

available means” and, under 18 U.S.C. § 3613(a), it may collect “restitution ‘in

accordance with the practices and procedures for the enforcement of a civil

judgment under Federal law or State law,”including theFederal Debt Collection

Procedures Act of 1990. United States v. Phillips, 303 F.3d 548, 550–51 (5th Cir.

2002). The attorney general is required by the MVRA to enforce victim

restitution orders “aggressively.” Id. at 551. There is nothing in the criminal

judgment to the contrary. 

Ekong contends that the Government failed to comply with 28 U.S.C.

§ 3205(b)(1)(B), by making demand for payment more than 30 days prior to

seeking the writ of garnishment. In its response to Ekong’s objections to the

application for writ of garnishment, the Government showed that demand for

payment was mailed to Ekong on November 16, 2004, which was more than 30

days prior to the filing of the application for writ of garnishment on April 25,

2005. Ekong filed an affidavit in response attesting that she never received the

Government’s letter. The district court determined that the Government had

presented sufficient proof that a demand letter was mailed to Ekong. The

district court held that Ekong had failed to rebut the presumption that the

demand letter was received. 
No. 06-11185

3

“Proof that a letter properly directed was placed in a U.S. post office mail

receptacle creates a presumption that it reached its destination in the usual time

and was actually received by the person to whom it was addressed.” Beck v.

Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989). “A sworn

statement is credible evidence of mailing for the purposes of the mailbox rule.”

Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 420 (5th Cir. 2007) (brackets and

quotation marks omitted). The placement of a letter in the mail may be proved

by circumstantial evidence, including evidence ofthe sender’s customary mailing

practice. Id. The addressee’s “bare assertion of non-receipt” is insufficient to

rebut the assumption. Id. at 421. 

The Government submitted the affidavit of the legal assistant who

prepared the letter and caused it to be mailed to Ekong’s residence and postal

address through the United States mail. The legal assistant’s affidavit was

supported by business records. See Custer, 503 F.3d at 421. Ekong’s affidavit

of non-receipt was not supported by circumstantial evidence. See id. The

district court did not err in applying the mailbox rule. The district court’s order

overruling Ekong’s objections to the application for writ of garnishment is

AFFIRMED.