in my sentencing memorandum it was assessed that I would pay $100 per month after I was released. I have never missed a payment. Today I received notice that my probation officer has ordered a hearing to review my cash flow and assets and see if I can pay more. He has also told me that because I am living with family that I have to provide the courts all of their information as well. Bank Statements, financial statements etc. I do not have access to this information. I am not on these accounts. I have no authority on these accounts. Further the Probation Officer has stated that they are going to look towards my spouse for funds even though we have been legally separated since June 2005 and she had nothing to do with my criminal case. Can they do that?
The can knock, but you do not have to answer. It sounds like they are going to have to subpoena third parties, but are trying to get around that by placing you responsible. I'd say, go to court and ask the judge what he or she needs for this. Since most of this information is in the hands of third parties, the judge will have to sign some subpoenas. These hearings happen and you should not feel persecuted. Try to find an attorney to help you with this. You need someone to watch your back in these sticky situations. FFWYBI (Fight for what you believe in)
Your sentencing memo can't set the terms of a restitution payment. Typically, the court will do this or will delegate it to the probation officer handling your supervised release (it sounds like you are on supervised release following a term of incarceration). The government and/or the victims do have the right to request a modification to the terms of the restitution schedule. Under 18 USC 3664(k):
"(k) A restitution order shall provide that the defendant shall notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution. The court may also accept notification of a material change in the defendant's economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require."
I would normally advise a client to to provide the information that he can, but obviously you cannot provide what you don't have access to. My colleague is correct that the judge can order disclosure of this information and the hold a hearing on the restitution schedule and amount. You should be represented at that hearing and in all dealings with the government on this matter. Contact your attorney or retain one if you don't have an attorney to discuss the matter.
Look at the memo below. This whole thing sounds a little like the probation officer standing in the revenue officer's shoes. The $ / mo amount originally established notwithstanding, the general tax principles may not make this as anomalous as it seems.
The next question is how much is the restitution. If its hundreds of thousands of dollars, then this may look like a regular tax collection problem. If the restitution is only $2000-$3000, then maybe he is doing it so that he will have you off-book sooner, and is applying standard tax techniques to determine how quickly you can repay it. If you are paying faster but are resisting payment in order to avoid paying, that could be a completely different can of worms.
Other quesitions to ask are whether the spouse benefitted from the crime, at all.
Does she own a house and if so, who has title.?
Certified Tax Specialist -- State Bar of California Board of Legal Specialization (J.D.; LL.M.-Tax)
Electrical(M.S.E.E.)-Chemical(M.S.Ch.E.)(B.S. Chemistry)-Mechanical Patent (Intellectual Property) Attorney & MBA (562) 594-
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Your inquiry suggests a Probation Officer that considers him/her self as the controlling person in the restitution issues relating to your probation. Although the Probation Officer has significant latitude in the application of the judges sentencing order he/she does not have the authority to change it.
You are required to cooperate in providing the requested information and documents.
A review of the sentencing order and any amendments to it by an experienced federal criminal defense lawyer is the best way to answer your concerns.
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