United States v. Hyde

U.S. Court of Appeals for the Second Circuit
United States v. Hyde, 556 F. App'x 62 (2d Cir. 2014)

United States v. Hyde

Opinion

*63 SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-appellant Kennedy Hyde appeals from the judgment of the district court entered November 2, 2012, convicting him, following a jury trial, of making false statements under penalty of perjury in connection with a Title 11 bankruptcy proceeding, in violation of 18 U.S.C. § 152(2)-(3). We assume the parties’ familiarity with the facts and procedural history of the case, which we summarize as follows:

On October 26, 2012, the district court sentenced Hyde to 27 months’ imprisonment and three years’ supervised release. The district court imposed four special conditions of supervised release.

Hyde appeals only with respect to the fourth special condition of supervised release. 1 This condition reads:

Until restitution is paid in full, the defendant is restrained from transferring any asset with a value of $500 or more, unless it is necessary to liquidate and apply the proceeds of such property to the order of restitution.

App. at 24.

Hyde contends that the fourth special condition constitutes garnishment and violates the Consumer Credit Protection Act (the “CCPA”), 15 U.S.C. § 1671 et seq. Hyde further argues that the condition prevents him from paying basic living costs — such as renb — as the condition bars him from “transferring any asset with a value of $500 or more.” Appellant’s Br. at 3. We disagree, for two reasons. 2

First, the fourth condition is not tantamount to garnishment as contemplated by the CCPA. Garnishment is “any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.” 15 U.S.C. § 1672(c). The garnishment of “earnings” refers to the withholding of “periodic payments of compensation and does not pertain to every asset that is traceable in some way to such compensation.” In re Kokoszka, 479 F.2d 990, 997 (2d Cir. 1973), aff'd sub nom. Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). An order does not constitute garnishment if it “simply directs restitution payments” and “d[oes] not require payment of restitution from a speeif *64 ic asset.” United States v. Jaffe, 417 F.3d 259, 265-66 (2d Cir. 2005) (upholding restitution order in amount that could require defendant to sell home, as order did not require payment from any specific asset). Here, the fourth special condition neither requires the withholding of any of Hyde’s earnings nor compels Hyde to draw restitution payments from a specific asset. The condition thus does not constitute garnishment and falls outside the scope of the CCPA. See id.

Second, Hyde misreads the plain language and purpose of the condition. The condition does not prevent him from spending money to pay for basic living expenses, such as rent. Rather, the condition bars him from transferring assets with a value of $500 or more unless it is necessary to liquidate any such asset to pay restitution. See also United States v. Green, 618 F.3d 120, 122-24 (2d Cir. 2010) (considering context in which challenged supervised release condition was imposed to guide interpretation of condition’s language). The plain language of the condition therefore does not prohibit Hyde from spending money for housing, transportation, and subsistence; it merely says that he cannot liquidate assets except to pay restitution. We find no error here that warrants vacatur or reversal.

We have considered Hyde’s remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment of the district court.

1

. Hyde filed his notice of appeal on November 9, 2012, after the district court entered its original judgment on November 2, 2012. The district court did not determine the amount of restitution until it entered an amended judgment on February 22, 2013. Hyde did not, however, file a new notice of appeal from the amended judgment. The government does not contest the timeliness of Hyde’s appeal. While Hyde’s notice of appeal was likely effective with respect to the original judgment, we conclude that it "ripened into an effective notice” of appeal from the amended judgment as well. United States v. Kapelushnik, 306 F.3d 1090, 1093-94 (11th Cir. 2002); see also Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 663 n. 6 (2d Cir. 2012)(“Although [appellant] filed a premature notice of appeal, because the district court entered an amended final judgment before the appeal was heard and [appellee] suffered no prejudice, the jurisdictional defect has been cured.”).

2

. The government argues that plain error review applies because Hyde failed to object to the special conditions at sentencing. Hyde argues that "relaxed plain error review” is appropriate under our decision in United States v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010). We need not decide the question of the standard of review, however, because the issue presented is largely a matter of law and we conclude that Hyde’s argument fails even under de novo review.

Reference

Full Case Name
UNITED STATES of America, Appellee, v. Kennedy J. HYDE, Defendant-Appellant
Cited By
1 case
Status
Unpublished