7th Circuit Rejects Former Bloomington Employee’s Request To Defer Restitution

Olivia Covington for www.theindianalawyer.com

The 7th Circuit Court of Appeals has rejected a former Bloomington city employee’s argument that his restitution debt should be deferred to his release from prison because he is limited to paying only 10 percent of his income toward that debt each month.

Former Bloomington city project manager Justin Wykoff pleaded guilty in 2015 to wire fraud charges related to his solicitation of bribes and kickbacks while in office. U.S. District Judge Tanya Walton Pratt sentenced Wykoff in June 2015 to 55 months in prison, $446,335 in restitution to be paid to the city of Bloomington and a $1,100 assessment.

The payments were ordered to begin immediately, but Pratt also attached a special instruction requiring that “any unpaid restitution balance during the term of supervision shall be paid at a rate not less than 10 percent of the defendant’s gross monthly income.”

Soon after the entry of judgment, the government applied for a writ of garnishment, which Pratt issued to the Indiana pension system because it had an account in Wykoff’s name that was worth $47,937. Wykoff opposed the writ, arguing that he had already been forced to forfeit two of his homes and that the government had seized money from his prison accounts.

Although the money taken from his prison accounts was not enough to cover his ordered restitution, Wykoff argued that the balance should be deferred to his release because he interpreted Pratt’s special instruction to mean that his restitution payments should be limited to 10 percent of his monthly income.

But in an opinion handed down from the 7th Circuit Court of Appeals in United States of America v. Justin Wykoff, 16-1307,Thursday, Judge Richard Posner wrote that Wykoff had interpreted the instructions incorrectly and had no legal leg to stand on.

The 10 percent requirement was a minimum, not a maximum, Posner wrote. Further, Posner said the federal criminal code requires restitution to be paid back immediately unless the district court provides otherwise.

Posner pointed to the case of United States v. Sawyer, 521 F.3d 792, 795 (7th Cir. 2008), in which the appellate court found that once a person has been incarcerated, “any existing assets should be seized promptly. If the restitution debt exceeds a felon’s wealth, then the Mandatory Victim Restitution Act of 1996 … demands this wealth be handed over immediately.”

“This is an important rule – for who knows what might happen to Wykoff’s assets during his years of imprisonment,” Posner wrote. “He or members of his family or, for that matter, the Indiana state pension fund might decide that there are better things to do with those not inconsiderable assets than give them to Bloomington.”