United States v. Andrew Parker
Opinion
*376
Andrew Parker was convicted of an assortment of fraud crimes more than a decade ago. Since then, he has revisited our court at least ten times through a combination of a direct appeal, appeals from
Parker once again tried his luck with these arguments before the district court, filing another motion under § 2255. The district court dismissed the motion for lack of jurisdiction because Parker failed to receive authorization from our court to file a successive petition under § 2255. Parker then requested reconsideration, which the district court denied. He has now appealed, implicitly requesting a COA. We DENY Parker a COA, DISMISS his appeal for lack of jurisdiction, and sanction him for appealing his collateral attack on his conviction.
But Parker has also appealed a new issue not foreclosed by his prior efforts. In the district court, he challenged the amount of restitution he was ordered to pay. Parker argues that the victims of his crimes have recovered some of their damages through a civil judgment. The statutes governing restitution grant Parker the right to reduce his restitution order based on subsequent civil judgments. But Parker failed to present necessary evidence to succeed on his claim. We thus AFFIRM the district court's denial of his request to quash the Government's writ of execution. 1
I. Background
Andrew Parker used his company, San Antonio Trade Group, Inc. ("SATG"), to defraud the Export-Import Bank of the United States ("Ex-Im Bank"). He collaborated with people in Mexico to seek loans from United States companies based on lies and forged documents. Ex-Im Bank insured and guaranteed the loans. Once the loans were insured and guaranteed, Parker diverted millions of dollars in loan money to himself rather than for the stated purposes. Along the way, he committed wire fraud, money laundering, tax evasion, tax fraud, and conspiracy.
Eventually Parker was caught and pleaded guilty to those crimes under a written plea agreement. In accordance with the plea agreement, the district court sentenced Parker to a term of imprisonment and supervised release and ordered Parker to pay $ 10 million in restitution.
Since then, Parker has doggedly tried to undo his conviction. Parker's first attack on his plea agreement and conviction came when he appealed his conviction.
See
United States v. Parker
,
*377 Less than a year later, Parker filed his first § 2255 motion in April 2011. His arguments ranged wide, including many related to the arguments he makes in this appeal: the Government committed a Brady 2 violation or elicited or permitted false evidence, and his counsel was ineffective by failing to challenge the wire fraud counts for lack of an interstate nexus. The district court identified and rejected those arguments. 3 Parker sought reconsideration, which was also denied. We denied Parker a COA, concluding that all reasonable jurists would agree that the district court's order was correct.
Between that motion and the motions leading to this appeal, Parker filed numerous other motions in the district court. The district court rejected all those motions on the grounds that they were unauthorized successive motions, see § 2255(h) (requiring a defendant who files a "second or successive motion" to receive authorization to file it from the proper court of appeals in accordance with § 2244), or, to the extent they were not, they were barred by § 2255 's one-year period of limitations, see § 2255(f). Each time Parker appealed the district court's order, and each time we denied him a COA. The most recent time we addressed one of Parker's appeals, a judge of this court imposed sanctions on him for filing frivolous appeals.
While he filed district court motions, Parker also twice requested that our court grant him authorization to file a successive motion. We denied authorization both times-once because Parker had not identified an exception to the successive motion bar,
see
In re Parker
,
In all, we have addressed Parker's case eight times: one affirmance on direct appeal, five denials of COAs, and two denials of requests for authorization to file a successive motion. 4
Undeterred, Parker tried again. After each of his previous attempts failed, Parker filed another motion under § 2255. The district court again dismissed the motion as an unauthorized successive motion. Parker then requested reconsideration, which was denied. He then requested reconsideration of the district court's denial of reconsideration. The district court again denied reconsideration. Parker appealed from the order denying reconsideration of the order denying reconsideration of the § 2255 motion, which we now call the Order Denying Reconsideration of Reconsideration of § 2255.
While he re-pressed his § 2255 motion, Parker also filed a new type of motion. Parker, now released from prison, 5 moved to quash the Government's writ of execution used to enforce the restitution order *378 against him. Though the type of motion was new, the arguments mostly were not. They largely followed the exact same arguments made in Parker's previously rejected § 2255 proceedings.
Parker did, however, make one new argument specific to the motion to quash. He argued that the Government had collected money that had not been credited against the restitution order. The district court held a hearing on the motion to quash and permitted Parker to present evidence in support of his arguments. Parker presented evidence only about his argument that the district court lacked jurisdiction over him because there was no interstate wire transfer. He did not present any evidence that the Government had collected money on his restitution order. Less than two weeks after the hearing, the district court denied Parker's motion to quash.
Parker moved for reconsideration and later filed a supplement to the motion. The supplement focused heavily on his new argument, particularly that Ex-Im Bank had already recovered money that should be credited against his restitution. It identified an affidavit submitted with one of his previous § 2255 motions that stated that Ex-Im Bank had collected money from entities related to his scheme. The district court denied the motion for reconsideration and its supplement, orders which we collectively call the Orders Denying Quash Reconsideration. Parker appealed the Orders Denying Quash Reconsideration, which we consolidated with his other appeal.
II. Discussion
A. Collateral Attack on Conviction
We begin by dismissing for lack of jurisdiction Parker's appeals to the extent they challenge his previous conviction. Those aspects of his motions should be treated as motions for relief under § 2255, regardless of what they are titled.
See
Gonzalez v. Crosby
,
Reasonable jurists would all agree that the district court lacked jurisdiction because Parker had not received authorization to file a successive § 2255 motion. Parker previously requested, and was denied, authorization to file a successive § 2255 motion making the same arguments he made below and now makes on appeal.
See
In re Parker
, No. 14-50911 (5th Cir. Nov. 10, 2014). In denying the motion for authorization, we concluded that "[a]ll of Parker's complaints involve matters that could have and should have been asserted on direct appeal or on appeal from the denial of the initial § 2255 motion."
We have previously sanctioned Parker in the amount of $ 100 for pursuing frivolous litigation in our court. Because that has not dissuaded him from further frivolous filings, we again sanction him. It is ORDERED that Parker pay $ 1,000 to the Clerk of this court, and he is BARRED from filing in this court or in any court subject to this court's jurisdiction any challenge to his conviction or sentence until the sanction is paid in full unless he first obtains leave of the court in which he seeks to file such a challenge. Parker is WARNED again that filing any future frivolous, repetitive, or otherwise abusive challenges to his conviction or sentence in this court or any court subject to this court's jurisdiction will subject him to additional and progressively more severe sanctions.
B. Attack on Restitution Amount
Parker also appeals the district court's denial of his request to quash a writ of execution against his property to collect the restitution he owes. He argues two different theories for why he does not owe the restitution ordered. We first assure ourselves of jurisdiction to address the restitution aspects of his appeal and then explain why the district court did not err in rejecting both theories.
1. Jurisdiction
Parker asserts that we have jurisdiction over the district court's denial of his writ of execution because it is an appeal from a "final decision[ ]" under
In prior times, we said that "the refusal to quash an execution is not a final judgment."
Noojin v. United States
,
A final decision is typically one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."
Hall v. Hall
, --- U.S. ----,
There is not. Under the Federal Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, 104 Stat 4789 (1990), the Government can collect on judgments in its favor through, among other things, a writ of execution.
See
2. Merits
Parker makes two arguments about the merits of his restitution order, neither of which succeed. Parker first argues that the restitution amount was incorrect the day it was ordered.
8
But we have denied numerous attempts to collaterally attack a restitution order.
9
That is because once orders become final on direct review, "they became res judicata ..., 'not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' "
Travelers Indem. Co. v. Bailey
,
His second argument also fails but for a different reason. On appeal, Parker argues that Ex-Im Bank "had collected notes and civil judgments for the total loss for the victims named in his plea agreement."
10
We agree that if this statement were proved to be true, Parker would have a valid argument. The statute governing Parker's restitution states that his restitution amount "shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in-(A) any Federal civil proceeding; and (B) any State civil proceeding, to the extent provided by the law of the State."
But even considering all the evidence Parker presented below,
12
Parker does not meet the evidentiary requirements of § 3664(j)(2). We have held that the defendant bears the burden of proving an offset under § 3664(j)(2).
See
United States v. Sheinbaum
,
III. Conclusion
We DENY Parker a COA to appeal the district court's dismissal of his challenges to his conviction. He is ORDERED to pay $ 1,000 to the Clerk of this court, and he is BARRED from filing in this court or in any court subject to this court's jurisdiction any challenge to his conviction or sentence until the sanction is paid in full unless he first obtains leave of the court in which he seeks to file such challenge. Parker is WARNED again that filing any future frivolous, repetitive, or otherwise abusive challenges to his conviction or sentence in this court or any court subject to this court's jurisdiction will subject him to additional and progressively more severe sanctions.
We AFFIRM the district court's Orders Denying Quash Reconsideration.
Parker's motion to determine jurisdiction in advance of appellate briefing is denied as moot.
Brady v. Maryland
,
The district court did accept Parker's argument, with which the Government agreed, that his term of supervised release exceeded the statutory maximum. It amended his judgment to reflect the statutory maximum. Though Parker appealed the amended judgment that incorporated this change, we stated that his arguments attacked the denial of the § 2255 order; we concluded the appeal from the amended judgment should be dismissed for lack of a COA and indicated Parker could seek one in the other appeal he had then filed.
We have also dismissed another appeal for failure to prosecute and denied a recently filed petition for writ of mandamus that covered the same district court actions that are now the subject of this appeal.
Parker is still on supervised release, so he is still "in custody" for purposes of § 2255.
See
United States v. Scruggs
,
Even if the order in this case was not a "final decision" under § 1291, we would then conclude it is an appealable interlocutory order under
"Levy" generally means to "take or seize property in execution of a judgment." Levy , Black's Law Dictionary (10th ed. 2014).
Parker's argument about the amount of restitution is not subject to the rules of § 2255 because we have previously concluded that "complaints concerning restitution may not be addressed in § 2255 proceedings."
United States v. Hatten
,
See, e.g.
,
United States v. Goyette
,
Parker argued below that he should receive credit against his restitution order for other post-judgment developments, like restitution payments by a co-conspirator. He has not briefed any of those issues on appeal. "Failure to brief an issue on appeal constitutes waiver."
Lara v. Johnson
,
We assume without deciding that the vehicle through which he made this argument-a motion to quash a writ of execution-was a proper vehicle.
As noted above, Parker moved to quash the writ of execution. When it was denied, he moved for reconsideration of the motion, this time including more evidence in support of his argument. He appealed only the denial of reconsideration. We need not decide what legal standards would have governed the motion for reconsideration below or on appeal because even if we consider all the evidence under a de novo standard of review, he still fails to make out a claim.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. Andrew Maxwell PARKER, Defendant - Appellant
- Cited By
- 16 cases
- Status
- Published