UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO.: 2:00-CR-28-TLS-18

)

JAMES ERVIN )

OPINION AND ORDER

On December 16, 2010, the Defendant filed a pro se Motion to Stop and Suspend

Restitution Payments [ECF No. 1709]. He asks that the Court-ordered restitution be stopped and

suspended until he is either released from custody or until he has exhausted all further remedies.

He represents to the Court that the amount owed as restitution continues to grow as interest

charges are added to the balance and that he has not been able to secure prison industry

employment paying a wage sufficient to reduce the principal balance. The Defendant states that,

as a consequence, he is going further into debt.

On December 28, the Government filed a Response [ECF No. 1710], opposing the

Defendant’s Motion. The Government argues that 18 U.S.C. § 3664(n) provides that the

Defendant’s obligation to pay restitution continues during his period of incarceration, that the

Judgment directs that restitution payments be in accordance with the Bureau of Prisons’

Financial Responsibility Program (IFRP), and that under United States v. Sawyer, 521 F.3d 792,

796 (7th Cir. 2008), payments until release should be handled through the IFRP rather than

under the Court’s auspices. Thus, the Government contends that deferral of restitution payments

is not warranted. The Government also asserts that waiver of interest is not warranted at this

time.

In December 2005, the Court, upon the Defendant’s conviction for numerous drug and
firearm violations, sentenced him to life imprisonment plus sixty years. As part of his sentence,

the Court ordered the Defendant to pay restitution in the amount of $8114.39 and a special

assessment in the amount of $1100.00, for a total of $9214.39. Regarding the payment of the

criminal monetary penalties, the Court ordered:

Having assessed the defendant’s ability to pay, payment of the total

criminal monetary penalties are due as follows:

Lump sum payment of $9,214.39 due immediately, balance due in

accordance [with] [s]pecial instructions . . . :

The defendant shall make restitution payment toward the total amount of

$8,114.39 from any wages he may earn in prison in accordance with the Bureau

of Prisons Financial Responsibility Program. Any portion of the special

assessment of $1,100.00 that is not paid in full at the time of the defendant’s

release from imprisonment shall become a condition of supervision. The

defendant shall pay toward restitution and special assessment at a rate of $10.00

per month.

Unless the court has expressly ordered otherwise, if this judgment imposes

imprisonment, payment of criminal monetary penalties is due during

imprisonment. All criminal monetary penalties, except those payments made

through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program,

are made to the clerk of the court.

The defendant shall receive credit for all payments previously made

toward any criminal monetary penalties imposed.

(Judgment, ECF No. 1471 at 7.) In its Response, the Government represents to the Court that the

Defendant paid $250 toward the special assessment, that further liability to pay the special

assessment has expired, and that the balance of the special assessment has been written off.

The Defendant has cited no statutory authority or case law in support of the relief he is

requesting. The Defendant has not shown that the Court erred in ordering the Defendant to pay

restitution by nominal periodic payments of $10.00 as part of the his sentence. See 18 U.S.C. §

3664(f)(3)(A) & (B) (authorizing a court to order the defendant to make a single lump-sum

payment, reasonable periodic payments, or nominal periodic payments); United States v.

Hosking, 567 F.3d 329, 336 (7th Cir. 2009) (“The court is [] required to craft its restitution order

2
‘pursuant to [18 U.S.C. §] 3572,’ [18 U.S.C.] § 3664(f)(2), which provides that ‘[a] person

sentenced to pay a fine or other monetary penalty, including restitution, shall make such payment

immediately, unless, in the interest of justice, the court provides for payment on a date certain or

installments.’ 18 U.S.C. § 3572(d)(1).”) (emphasis omitted). Under federal law, the Defendant’s

obligation to pay restitution continues during his incarceration. See 18 U.S.C. § 3664(n) (“If a

person obligated to provide restitution . . . receives substantial resources from any source . . .

during a period of incarceration, such person shall be required to apply the value of such

resources to any restitution . . . still owed.”). A federal statute provides that the Defendant must

pay interest on the restitution, unless specifically waived by the Court or the Attorney General.

See 18 U.S.C. § 3612(f)(1) (stating that “[t]he defendant shall pay interest on any . . . restitution

of more than $2,500”); 18 U.S.C. § 3612(f)(3)(A) (authorizing a court to waive the requirement

for interest if it determines that the defendant does not have the ability to pay interest); 18 U.S.C.

§ 3612(h) (authorizing “[t]he Attorney General to waive all or part of any interest under this

section . . . if, as determined by the Attorney General, reasonable efforts to collect the interest . .

. are not likely to be effective”). Neither the Court nor the Attorney General has waived payment

of interest in this case, and evidence of his inability to pay interest has not been placed before the

Court for determination. For these reasons, the Court will deny the Defendant’s Motion without

prejudice.

The Defendant’s Motion has not addressed the question of his participation in the Bureau

of Prisons’ IFRP, and the Government has not addressed that issue in its Response. In United

States v. Boyd, 608 F.3d 331, 335 (7th Cir. 2010), the Seventh Circuit held that participation in

the IFRP is voluntary. The Court will not address this issue sua sponte in this Opinion and Order,

3
but will grant the Defendant leave to file a motion addressing the issue.

For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE the Defendant’s

pro se Motion to Stop and Suspend Restitution Payments [ECF No. 1709] and GRANTS the

Defendant leave to file on or before February 21, 2011, a motion addressing his participation in

the IFRP, if he chooses to do so.

SO ORDERED on January 5, 2011.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

4