But first, on May 21, the Court dealt with a preliminary matter. The following is docketed at entry 100 on May 21, 2010, in United States of America v. Peter Hendrickson, Defendant, U.S. District Court for the Eastern District of Michigan, case no. 2:08-cr-20585-GER-DAS:
The judgment, imposed on April 19, 2010, is entered at docket entry 101 on May 25, 2010. The judgment reads as follows (in part):ORDER DENYING DEFENDANT’S MOTION FOR REVERSAL OF SENTENCING ENHANCEMENTS AND SETTING AMOUNT OF RESTITUTION
[......]At an April 19, 2010 hearing, the Court determined and imposed a sentence on Defendant Peter Hendrickson following his conviction by a jury on ten counts of filing a false document with the Internal Revenue Service (“IRS”), in violation of 26 U.S.C. § 7206(1). At the conclusion of this sentencing hearing, however, one matter remained for the Court’s determination — specifically, the Court reserved the issue of restitution, and ordered the Government to recalculate a restitution amount that was limited to Defendant’s wages for the relevant tax years, as well as his wife’s income for those years in which Defendant and his wife filed jointly.
On April 21, 2010, the Government filed a supplemental sentencing memorandum in which it argues that the appropriate amount of restitution is $15,672.00. At a telephonic hearing held on April 27, 2010, [footnote 1] counsel for Defendant requested an opportunity to respond to the Government’s supplemental submission, and promised to file this response by Friday, April 30, 2010. Instead, on May 12, 2010, Defendant filed an 18-page motion in which he invites the Court to revisit several of its rulings at the April 19 sentencing hearing, but which addresses only tangentially (at best) the issue of restitution.
The Court declines Defendant’s invitation. Defendant and his counsel were given an extensive opportunity at the April 19 sentencing hearing to raise any issues bearing upon the determination of Defendant’s sentence, and the Court ruled on each such issue raised by Defendant. In addition, Defendant and his counsel submitted a 26-page sentencing memorandum prior to the April 19 hearing, in which Defendant challenged various aspects of the Sentencing Guidelines calculations and sentencing recommendations set forth in a presentence investigation report prepared by the United States Probation Department. [footnote 2] Having carefully considered these issues raised by Defendant prior to his sentencing, and having ruled on these matters and explained these rulings at the April 19 sentencing hearing, the Court finds no basis for reconsidering these rulings.
Rather, the sole remaining task before the Court is to determine the amount of restitution. As noted, the Government contends that the proper amount of restitution is $15,672.00. To the extent that Defendant’s post-sentencing submission even addresses this question, he evidently contends that this amount should be reduced to reflect exemptions and deductions that he could have claimed, but did not, in the returns and forms he filed with the Internal Revenue Service for the relevant tax years. Yet, as the Government points out in a May 16, 2010 response to Defendant’s post-sentencing motion, a taxpayer’s election to claim (or not claim) exemptions and deductions generally reflects a strategic decision by the taxpayer that the Government is not free to overrule in computing the amount of tax owed, and nothing in the record in this case suggests that Defendant’s determinations to claim (or not claim) exemptions and deductions were the product of ignorance or mistake rather than deliberate choice. Accordingly, the Court finds that the amount of restitution sought by the Government is appropriate.
For these reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s May 12, 2010 motion for reversal of sentencing enhancements (docket #98) is DENIED. Next, IT IS FURTHER ORDERED that the appropriate amount of restitution in this case is $15,672.00, as set forth in the Government’s supplemental sentencing memorandum dated April 21, 2010. The Court will enter judgment accordingly.
/s/ Gerald E. Rosen
Chief Judge, United States District Court
Dated: May 21, 2010
[footnote 1] This April 27 telephonic hearing was convened principally to address an issue that was brought to the Court’s attention following the April 19 sentencing hearing, concerning a statutory limitation on the Court’s authority to impose consecutive terms of supervised release.
[footnote 2] To the extent that Defendant complains in his present motion about the Government’s “eleventh hour” submission of a sentencing memorandum on April 16, 2010, the Court notes that Defendant’s own sentencing memorandum was submitted only a day earlier, on April 15, 2010. It also is worth noting that Defendant did not request an adjournment of the April 19 sentencing hearing in order to afford him an opportunity to address the issues raised in the Government’s sentencing memorandum. To the contrary, Defendant and his counsel appeared to be fully prepared and able to address these issues at the April 19 hearing.
- April 19, 2010 judgment, docketed at entry 101 on May 25, 2010, in United States of America v. Peter Hendrickson, Defendant, U.S. District Court for the Eastern District of Michigan, case no. 2:08-cr-20585-GER-DAS.JUDGMENT IN A CRIMINAL CASE
The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 33 months, on each count, concurrent.
While in custody, the defendant shall participate in the Inmate Financial Responsibility Program. The Court is aware of the requirements of the program, approves the payment schedule of this program, and hereby orders the defendant's compliance.
The defendant shall surrender for service of sentence at the institutuion [sic] designated by the Bureau of Prison: before 2 p.m. on: a date to be determined by the Bureau of Prisons. Bond is hereby Continued and shall be Cancelled upon the surrender of the defendant.
[ . . . ]
Upon release from imprisonment, the defendant shall be on supervised release for a term of: one (1) year on each count, concurrent.
The defendant must report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state or local crime.
If the defendant is convicted of a felony offense, DNA collection is required by Public Law 108-405.
The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court. Revocation of supervised release is mandatory for possession of a controlled substance.
[ . . . .]
If this judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payments sheet of this judgment.
The defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
[ . . . . ]
The defendant shall make monthly installment payments on any remaining balance of the restitution, fine, incarceration and superivision [sic] costs at a rate and schedule recommended by the probation department and approved by the Court.
The defendant is to make arrangements with the Internal Revenue Service regarding a monthly payment plan concerning the payment of back taxes, plus any interest or penalties that may accrue. The defendant is to provide the payment arrangement schedule with the Internal Revenue Service to the probation officer.
[ . . . ]
Restitution Ordered
$15,672.00
[ . . . ]
The court determined that the defendant does not have the ability to pay interest and it is ordered that:
the interest requirement is waived for the fine and restitution
[ . . . ]
Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties are due as follows:
[A] Lump sum payment of $10,000.00 due immediately, balance due in accordance F below.
[F] Special instructions regarding the payment of criminal monetary penalties: The defendant shall make monthly installment payments on any remaining balance of the restitution and fine imposed and incarceration and supervision costs at a rate and schedule recommended by the probation department and approved by the Court.
Unless the court has expressly ordered otherwise in the special instructions above, while in custody, the defendant shall participate in the Inmate Financial Responsibility Program. The Court is aware of the requirements of the program and approves of the payment schedule of this program and hereby orders the defendant's compliance. All criminal monetary penalty payments are to be made to the Clerk of the Court, except those payments made through the Bureau of Prison's Inmate Financial Responsibility Program.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
EDIT: I reiterate that the reproduction of the judgment of conviction above is only a partial copy. Another important part of the judgment is a criminal fine of $25,000; apparently that fine is payable in installments, with the first $10,000 due immediately.