People For the American Way

Trump Judge Dissents From Decision Reversing District Court’s Order to Allow Seizure of Funds for Restitution: Confirmed Judges, Confirmed Fears

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Trump Judge Dissents From Decision Reversing District Court’s Order to Allow Seizure of Funds for Restitution: Confirmed Judges, Confirmed Fears

“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In August, Trump 9th Circuit judge Mark Bennett dissented from a decision reversing the district court’s order allowing the government to seize funds from a pre-trial detainee’s trust account to be applied to an outstanding restitution payment.

In United States v. Lillard, Lonnie Lillard was charged with conspiracy to commit bank fraud in 2016. In 1998, Lillard had been convicted of possessing counterfeit money. As part of his sentence in that case, he had been ordered to pay restitution. Since Lillard had no income or assets, the restitution was never paid and the government made no effort to collect any money from Lillard. While Lillard was in pre-trial detention for the bank fraud charge, $6,671.81 was deposited in Lillard’s inmate trust account, which he planned to use to pay for legal help in his pending case and support his 91- and 80-year-old parents.

The government filed a motion in district court to seize the funds from Lillard’s trust account to pay toward the restitution from the 1998 case. The government argued that the Mandatory Victim’s Restitution Act (MVRA) requires if a person “receives substantial resources… during a period of incarceration,” the value of the resources must be applied to any restitution or amount owed, and as Lillard was in federal custody, MVRA applied.

The district court ruled in favor of the government and, representing himself, Lillard appealed.

The majority ruled in favor of Lillard. They reasoned that a period of pretrial detention is not a “period of incarceration.” The MVRA does not define “incarceration” and an examination of MVRA’s legislative history and statutory context did not provide clarity on the meaning of the term. In such instances, the court must apply the least harsh interpretation of the term. Since MVRA’s procedures for restitution enforcement focus on periods after conviction, the court interpreted “period of incarceration” as incarceration after conviction.

Judge Mark Bennett disagreed. He argued that Congress intended the term “incarceration” to be construed broadly, thereby including pretrial detention.