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United States v. Silvious

United States District Court, W.D. Virginia, Harrisonburg Division

August 1, 2017



          Elizabeth K. Dillon, United States District Judge

         Defendant Owen F. Silvious, who is currently serving a term of supervised release and being supervised by the United States Probation Office in this district, recently filed a pro se motion titled as a “Motion for Order Directing United States Attorney to Stop Deducting Funds from my Social Security Benefits.” (Dkt. No. 28.) The motion has been fully briefed. Silvious has requested a hearing, the United States opposes any hearing, and the court concludes that no hearing on the motion is necessary. For the reasons discussed herein, the motion will be denied.

         I. BACKGROUND

         Silvious's restitution obligations in this criminal case are significant. In 2005, he was convicted of five counts of mail fraud and sentenced in the Eastern District of Wisconsin, and the amended judgment in that case required that he pay restitution in the amount of $1, 200, 447.70, as well as a $500 special assessment. (Dkt. No. 1-2.)[1] He has paid the special assessment, but still owes a significant portion of the restitution award. (Dkt. No. 21 (showing an outstanding on the balance of the restitution only as of March 25, 2015, in the amount of $681, 827.60).)

         Silvious served his original term of imprisonment and was released to serve his three-year term of supervised release. In March 2015, jurisdiction over the defendant was transferred to this court. On May 15, 2015, the court entered a judgment revoking Silvious's supervised release term after finding him guilty of violating the terms of his release. The court imposed a seven-month term of custody in the Bureau of Prisons, to be followed by a supervised release term of twenty-nine months, but otherwise left intact all aspects of the original judgment, including Silvious's restitution obligations. (Judgment, Dkt. No. 25.) Like the amended judgment in his criminal case, this court's judgment ordered that he pay $100 monthly while on supervision. (Id. at 6.)

         After serving his seven-month sentence, Silvious was released from custody and began his current supervised release term. In May 2016, the monthly amount of his payment was increased by the court to $200, after Silvious and his probation officer agreed to this amount and the probation officer requested the change. (Dkt. No. 26; see also Motion 4, Dkt. No. 28 (noting that the $200 monthly payment was “mutually agreed by Silvious and [his probation officer]”).) Then, in May 2017, the United States, through its Treasury Offset Program (TOP), began deducting from his monthly social security benefits a monthly payment of $93.00, consisting of $78.00 in payment toward restitution and a $15.00 fee. It is this TOP deduction from his social security benefits that Silvious challenges in his motion.


         The TOP program

authorizes the Treasury Department “to collect non-tax debts by withholding funds paid out by other federal agencies.” Reeves, 526 F.3d at 738 n.3; see 31 U.S.C. § 3716(a); 31 C.F.R. § 285.5. Pursuant to the TOP, any federal agency with a claim against the debtor, after notifying the debtor that the debt is subject to administrative offset and providing an opportunity to dispute the debt or make arrangements to pay it, may collect the debt by administrative offset. See 31 U.S.C. § 3716(a), (c)(6). In order to do so, the creditor agency must certify to Treasury that the debt is eligible for collection by offset and that all due process protections have been met. See 31 C.F.R. § 285.5(d)93)(ii), (d)(6). If properly certified, the Treasury Department must administratively offset the debt. See 31 U.S.C. § 3716 (c)(1)(A).

Johnson v. U.S. Dep't of Treasury, 300 F. App'x 860, 862 (11th Cir. 2008) (footnotes omitted).

         Silvious admits that “it is true that the United States Attorney can have deductions made from [s]ocial [s]ecurity benefits” to satisfy restitution obligations, but he contends that the TOP offset against his social security benefits is nonetheless improper for two independent reasons. First, he argues that his debt was not delinquent for 180 days because he has been making regular payments on his restitution obligations, and thus the prerequisites for offset have not been satisfied. (Dkt. No. 28 at 3-4.) Second, he claims that he did not receive any notice from the United States Attorney for the Western District of Virginia and that such notice is required before the offset can begin.

         In his motion, he cites to, attaches, and relies on 31 U.S.C. § 3716(a) and 31 C.F.R. § 285.4(d) as requiring notice to him. In pertinent part, that statute and regulation require two types of notice. The first is a pre-offset notice, which the United States Attorney's office was to give to Silvious, informing him of the type of payment that would be offset, among other information. 31 C.F.R. § 285.4(f)(1). The United States Attorney's office then had to certify to the Department of the Treasury that “the debt is past-due, legally enforceable, and that the creditor agency has provided the debtor with notice and an opportunity for a review in accordance with the provisions of 31 U.S.C. § 3716(a) and other applicable law.” Id. The second type of notice is a post-offset notice, in which the official conducting the offset must notify Silvious of the occurrence of the offset. 31 C.F.R. § 285.4(f)(2).

         The United States filed a written response opposing Silvious's motion. The United States contends that Silvious was given notice of the offset on January 5, 2007, by the Financial Litigation Unit in the Eastern District of Wisconsin, and that he was placed in the TOP program 60 days after that notice. The United States maintains that he was properly placed in this program, that his current payments of $200 are not a substitute for the TOP offset, and that his recent financial statements show that “his financial status is sufficient” to meet both obligations. (Response 2, Dkt. No. 29.)

         In his reply, Silvious disputes that he ever received pre-offset notice and further disputes that he was placed in the TOP program prior to 2017. He repeatedly accuses the United States Attorney for the Western District of Virginia of “intentionally and willfully” ...

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