The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DENYING MOTION TO SET ASIDE LIENS
The United States initiated this matter as an ex parte application for an order requiring examination of the judgment debtor, Defendant Rodney D. Jones (Doc. 1). Defendant cross-moved for an order setting aside all liens and collection attempts by the Government as statutorily time-barred (Doc. 7). 18 U.S.C. § 3613.
The statute of limitations is now set forth in 18 U.S.C. § 3613(b). As policies and procedures were fine-tuned over the last three decades, 18 U.S.C. § 3613(b) was twice amended. Having reviewed both the facts of Defendant's underlying conviction and applicable statutory limitations provisions, this Court concludes that the statute of limitations does not bar the Government's ex parte application for an order requiring examination of the judgment debtor.
In count twelve of a seventy-six-count indictment, the Grand Jury for the Northern District of Alabama charged that, in or about the time period from late April 1988 to October 1988, Defendant Rodney DeRose Jones, aka Elvis, conspired with numerous co-defendants to illegally import 500 kilograms of marijuana, a Schedule I controlled substance, from Mexico to the United States (Doc. 16-2). A jury found Defendant guilty on August 4, 1989, and the Northern Alabama District Court entered judgment on August 7, 1989 (Docs. 16-3 and 16-4). The Court sentenced Defendant to 121 months in prison and imposed a $100,000 fine and a $50 special assessment (Doc. 16-3).
On March 7, 1996, arguing that he received ineffective assistance of counsel and that his conviction was barred by double jeopardy, Defendant moved to vacate his conviction (Doc. 16-5). In his report and recommendation, the magistrate judge recommended rejecting Defendant's contention that he was subjected to double jeopardy as a result of the separate civil forfeiture action against his airplane (Doc. 16-5). The magistrate recommended finding Defendant's allegation of ineffective assistance of counsel meritless except for his counsels' failure to object to certain findings of fact and sentencing enhancements (Doc. 16-5). Accordingly, the magistrate recommended that Defendant be re-sentenced, but that Defendant's motion be denied in all other respects (Doc. 16-5). On November 15, 1996, District Judge Robert B. Propst vacated Defendant's 1989 sentence and order his re-sentencing but denied Defendant's motion to vacate his conviction (Docs. 16-6 and 16-7). On December 4, 1996, Judge Propst reduced Defendant's sentencing level, applying a range of 97 to 121 months imprisonment and a range of $15,000 to $2,000,000 fines (Doc. 11-5). The judge sentenced Defendant to a prison term of 97 months and assessed a $100,000 fine and $50.00 assessment fee (Doc. 1-2).
Defendant was released from federal custody on December 10, 1996 (Doc. 7 at 6).
On July 9, 2009, seeking to collect Defendant's unpaid fine, the Government applied for an order for examination of judgment debtor (Doc. 1). The declaration supporting the application noted that judgment was entered against Defendant in the amount of $100,050.00 on December 4, 1996 (Doc. 1-2). As of May 6, 2009, the balance due, including interest, totaled $192,488.68 (Doc. 1-2). On July 15, 2009, this Court ordered Defendant to appear for examination as a debtor on August 14, 2009 (Doc. 4). Due to the unavailability of Defendant's attorney, the hearing was continued to October 23, 2009 (Doc. 6). On October 8, 2009, Defendant moved to set aside the liens and attempts to collect the fine (Doc. 7).
A. Crime Control Act (1984)
Before 1984, no time limits existed on the government's efforts to collect criminal fines, but little security for their payment existed either. The then-existing law provided that judgments for criminal fines were enforceable "by execution against the property of the defendant in like manner as judgments in civil cases." 18 U.S.C. § 3565 (repealed by P.L. 98-473, Tit. II, §§ 212(a)(1),(2), and 235(a)(1)). That provision required the federal government to collect fines in compliance with each state's procedures and time limitations, and subject to each state's exemptions of varying property from execution by creditors. H.R. Rep. No. 98-1030 and H.R. Conf. Rep. 98-1159, reprinted in 1984 U.S.C.C.A.N. at 3316, 3320. Among other things, the Comprehensive Crime Control Act of 1984 (P.L. 98-473) sought to "increase the efficiency with which the government collects fines assessed against criminal defendants." The new scheme was patterned on to successful collection practices used by the Internal Revenue Service to collect delinquent taxes. H.R. Rep. No. 98-1030 and H.R. Conf. Rep. 98-1159, reprinted in 1984 U.S.C.C.A.N. at 3318. The resulting enactment became 18 U.S.C. § 3613(b), which provided:
EXPIRATION OF LIEN.--A lien becomes unenforceable and liability to ...