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United States v. Pascucci

June 18, 2009

UNITED STATES OF AMERICA, RESPONDENT,
v.
NICHOLAS PASCUCCI, PETITIONER.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

MEMORANDUM OPINION & ORDER

Before the Court is Nicholas Pascucci's motion for an order pursuant to Rule 32 of the Federal Rules of Criminal Procedure amending the judgment against him by eliminating the restitution requirement.

I. Background

On August 7, 1998, Pascucci pled guilty to workers compensation fraud, making false statements, and wire fraud in violation of 18 U.S.C. §§ 1920, 1001, and 1341. The Court sentenced Pascucci on April 9, 1999, but then amended the judgment to correct a clerical mistake on August 9, 1999. Under the amended judgment, Pascucci was sentenced to a year and a day of imprisonment and three years of supervised release. He was also required to pay a special assessment of $600 and restitution in the amount of $324,709.39, the latter of which was due in full by the end of his second year of supervised release.

After Pascucci's probation officer determined that Pascucci would be unable to satisfy his restitution obligation by the court-imposed deadline, on April 9, 2001, Pascucci entered an agreement with the U.S. Probation Department for the Eastern District of New York in which he promised to make monthly restitution payments of $500. On March 11, 2002, the Court approved this payment schedule. (Court Ex. A.) The Government represents that Pascucci has, in general, made these scheduled payments.

Following the end of Pascucci's term of supervised release, the Government requested that Pascucci submit an annual financial disclosure form. On January 11, 2008, after reviewing Pascucci's most recent annual disclosure, the Government asked Pascucci to increase his monthly payments to $836 (which the Government claims is fifteen percent of his net earnings). According to the Government, Pascucci refused to comply with this request and continues to make monthly payments of only $500.

Pascucci claims that, since his sentence, there have been material changes in his economic circumstances that affect his ability to make restitution payments of any kind. He first cites a development that actually predates his April 9, 1999, sentence: on December 18, 1998, Pascucci pled guilty to a weapons charge in New York state court and received time served and five years' probation. (Def.'s Br. Ex. 6.) Then, on August 9, 1999 -- the same day the Court amended Pascucci's sentence -- the Government notified Pascucci that it planned to file a civil suit against him under the False Claims Act.*fn1 (Def.'s Br. Ex. 10.) Pascucci claims that his various legal battles have "cost tens of thousands of dollars." (Def.'s Br. 2.) He further claims that they have made it difficult for him to find employment, secure income, and maintain his marriage.

Pascucci currently receives $600 per month in veteran's disability, $405 per week in unemployment insurance, and "benevolent contributions" from his wife. (Def.'s Br. 4.) He jointly owns a home with his wife valued at $475,000, which secures a home equity loan of $218,900.72 and a lien in the amount of the restitution. (Id.) He also has cash and other assets worth approximately $16,000. (Id.) Should he retire, his monthly Social Security benefit would be $1,036. (Id. at 5.)

Pascucci now moves the Court for an order pursuant to Rule 32 of the Federal Rules of Criminal Procedure amending his judgment by eliminating the restitution requirement.

I. Discussion

Rule 32, which makes no provision for amending a sentence or judgment, does not offer Pascucci any ground for relief. See Fed. R. Crim. P. 32. In light of its duty to read pro se litigants' submissions "to raise the strongest arguments they suggest," Lewis v. Rawson, 564 F.3d 569 (2d Cir. 2009), the Court considers other possible means by which Pascucci could move to eliminate or modify his obligation to pay restitution. In its brief, the Government suggests and then eliminates one such possibility: 18 U.S.C. § 3573, which reads,

Upon petition of the Government showing that reasonable efforts to collect a fine or assessment are not likely to be effective, the court may, in the interest of justice-

(1) remit all of part of the unpaid portion of the fine or special assessment, including interest and penalties.

This statute, which applies only to fines and assessments and which is available only on petition by the Government, cannot ...


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