United States v. Rush

853 F.Supp.2d 159

UNITED STATES of America,

v.Sno H. RUSH, Defendant.

Criminal Action No. 10–00246 (CKK).

United States District Court, District of Columbia.

April 10, 2012.

Eric G. Olshan, U.S. Department of Justice, Washington, DC, for Plaintiff.

Kenneth M. Robinson, Robinson Law Firm, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR–KOTELLY, District Judge.

Defendant Sno H. Rush (“Rush”) used to be employed by the United States Marshals Service (“USMS”) as an administrative officer in the Superior Court for the District of Columbia. Between April 2006 and February 2009, Rush managed to convert to her own personal use a total of $104,000 in USMS funds. Before this Court, Rush pleaded guilty to one count of conversion in violation of 18 U.S.C. § 641, and was sentenced to serve twenty-one months of imprisonment to be followed by thirty-six months of supervised release and to pay $104,100 in criminal monetary penalties in the form of restitution and a special assessment. She is now in the custody of the Bureau of Prisons (the “BOP”) at the Federal Prison Camp in Alderson, West Virginia.

Before the Court is Rush's pro se [32] Motion to Amend the Judgment (“Motion to Amend”), filed on January 30, 2012. Rush asks the Court to modify its [20] Judgment dated May 9, 2011 to set her monthly payments under the BOP's Inmate Financial Responsibility Program (“IFRP”) at the minimum amount allowable for the remainder of her incarceration. The United States filed a [36] Response on March 12, 2012. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole,¹ Rush's [32] Motion to Amend shall be DENIED for the simple reason that the Court's Judgment does not require Rush to participate in the BOP's IFRP at all, let alone obligate her to make specific monthly payments under that program. Regardless, the Court does not have the authority to interfere with the BOP's authority in administering its program. As explained below, to the extent Rush seeks relief in connection with her participation in IFRP, her remedy must lie elsewhere.

BACKGROUND

Unless otherwise noted, the factual background set forth here is derived from the [5] Factual Basis for Plea. All dates and monetary amounts are approximations.

From October 1998 to November 2008, Rush was employed by USMS as an administrative officer in the Superior Court for the District of Columbia. In that capacity, Rush's responsibilities included handling payroll-related matters, authorizing payment to employees and outside entities, and drafting and signing United States Treasury checks for expenditures. Between April 2006 and February 2009, Rush converted to her own personal use a total of $104,000 in USMS funds. She did so through three basic devices.

First, USMS assigns each of its official vehicles a Fleet credit card (“Fleet card”) to be used for fuel purchases. Fleet cards are not assigned to individual employees and, when a vehicle is sold, the Fleet card assigned to that vehicle must be returned for deactivation. In April 2006, Rush took possession of a Fleet card assigned to a USMS vehicle that was to be sold. Rather than destroying or deactivating the card, Rush took the card home and, between April 2006 and November 2008, used the card to cover personal expenses for gas and other automotive purchases. When the Fleet card expired in November 2008, Rush renewed the card and received a new card. She then used that card from December 2008 to February 2009. Overall, Rush incurred $15,000 in charges, which USMS paid directly to the credit card company.

Second, using a family member's Social Security Number, Rush created a fictitious employee in the USMS payroll system and converted the salary for that fictitious employee to her own use. Between November 2007 and October 2008, Rush completed false time and attendance records for the fictitious employee and issued United States Treasury checks to the fictitious employee in the total amount of $31,000. The checks were deposited into a bank account that Rush controlled and she used those funds for personal expenses.

Third, Rush was responsible for receiving certain invoices and authorizing payment on behalf of USMS. From June 2007 to November 2008, Rush issued United States Treasury checks in the total amount of $58,000 and, disguising the credit card payments by creating false invoices to a company in a name similar to Rush's credit card company, used the checks to pay down the balance on her personal credit card account.

The United States commenced this criminal action against Rush on September 9, 2010. On October 12, 2010, Rush pleaded guilty to one count of conversion in violation of 18 U.S.C. § 641 for knowingly converting to her use money, valued at more than $1,000, of an agency of the United States. On May 9, 2011, this Court sentenced Rush to serve twenty-one months of imprisonment to be followed by thirty-six months of supervised release governed by several special conditions, and to pay restitution in the amount of $104,000 and a special assessment in the amount of $100. As of early April 2012, Rush had satisfied her special assessment but still owed approximately $102,573 in restitution. Under the Court's [20] Judgment, the total amount of criminal penalties was “immediately payable” and “due immediately” and Rush is required to participate in the BOP's UNICOR program while incarcerated “in order to pay off restitution and assessment.” ² Further, when Rush completes her term of incarceration and is on supervised release, she is required to “pay the balance of any restitution owed at a rate of no less than $50 each month.”

On June 8, 2011, Rush appealed this Court's Judgment to the United States Court of Appeals for the District of Columbia Circuit. On August 4, 2011, 2011 WL 3890644, the appeal was dismissed upon Rush's own motion. Rush filed her pending Motion to Amend on January 30, 2012, and the United States filed its Response on March 12, 2012. Rush did not file a timely reply. Accordingly, the motion is fully briefed and ripe for a decision. In an exercise of its discretion, the Court finds that hearing oral argument would not be of assistance. See LCrR 47(f).

Before proceeding, the Court notes that a second matter is also pending: Rush's [28/34] Petition for Relief under 28 U.S.C. § 2255 (“Section 2255 Petition”), which is yet to be fully briefed and will be resolved in a subsequent opinion.

DISCUSSION

Through her Motion to Amend, Rush asks the Court to modify its Judgment to set her monthly payments under the BOP's IFRP at the minimum amount allowable for the remainder of her incarceration. For at least two reasons, either of which is sufficient on its own to deny the relief sought, Rush's Motion to Amend shall be DENIED.

First, as Rush concedes, this Court's “Judgment does not reflect in relevant part any expression from the [C]ourt its intent that Petitioner Rush participate in the [I]FRP.” Rush's Mot. to Amend at 3. Because the Court's Judgment does not require Rush to participate in the BOP's IFRP at all, let alone obligate her to make specific monthly payments under that program, this Court has no occasion to modify its Judgment to “reduce” Rush's monthly payments under IFRP.³

Second, the amount an inmate must pay under IFRP is a matter entrusted to the Executive Branch, and “[c]ourts are not authorized to override the [BOP's] discretion about such matters, any more than a judge could dictate particulars about a prisoner's meal schedule or recreation.” United States v. Sawyer, 521 F.3d 792, 794 (7th Cir.2008), cert. denied,555 U.S. 1103, 129 S.Ct. 897, 173 L.Ed.2d 116 (2009); see also United States v. Baldwin, 563 F.3d 490, 492 (D.C.Cir.2009) (per curiam) (expressing doubt as to the district court's authority to give “specific instructions” regarding an inmate's payments under IFRP). To the extent Rush intends to seek relief in connection with her participation in IFRP, she should discuss with her case manager whether review of the BOP's interpretation of her monthly obligations is available through its Administrative Remedy Program. See28 C.F.R. § 542.10(a) (“The purpose of the Administrative Remedy Program is to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.”). Alternatively, Rush might want to challenge the execution of her sentence under 28 U.S.C. § 2241 in the federal district where she is incarcerated (the Southern District of West Virginia). See Morton v. Bolyard, 810 F.Supp.2d 112, 115 (D.D.C.2011) (“To the extent petitioner challenges the execution of his sentence ..., he must proceed under 28 U.S.C. § 2241 in the district where he is incarcerated”). The Court expresses no opinion whether or not such measures would be meritorious. At this time, it suffices to...