Court filing

United States' Opposition to Defendant's Motion to Limit Restitution Payments — United States v. Amber Rewis Bruey

No. 2:21-cr-00074 · Doc. 184 · Docket on CourtListener

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Case 2:21-cr-00074-TPB-K_D Document 184 Filed 12/13/24 Page 1 of 9 PageID 2063

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

UNITED STATES OF AMERICA

v. Case No. 2:21-cr-74-TPB-KCD

AMBER REWIS BRUEY

UNITED STATES’ OPPOSITION TO DEFENDANT’S
MOTION TO LIMIT RESTITUTION PAYMENTS

The United States opposes Bruey’s motion (Doc. 181) seeking to have the

Court direct the Bureau of Prisons to limit her restitution payments to $25 per

month, and in support, submits the following memorandum of law.

MEMORANDUM OF LAW

I. Background

1. On March 16, 2022, the Court accepted Bruey’s plea of guilty to

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 (Count One),

wire fraud in violation of 18 U.S.C. §§ 1343, 1349, and 2 (Counts Two through

Eleven), conspiracy to commit money laundering in violation of 18 U.S.C.

§ 1956(h) (Count 14), and illegal monetary transactions (Counts 14, 15, 16, 17,

and 18). Doc. 72. Bruey was sentenced to 48 months in prison and ordered to pay

a $1,600 special assessment and restitution in the amount of $881,659.35 to the

victims. Doc. 109.
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2. The Court ordered that her restitution was due during her

incarceration. Doc. 109 at p. 6. The Court also ordered that while in the custody

of the Bureau of Prisons (BOP), the defendant shall either (1) pay at least $25.00

quarterly if she has a non-UNICOR job or (2) pay at least 50% of her monthly

earnings if she has a UNICOR job. Id.

3. As of December 3, 2024, according to the Clerk of Court, Bruey has

paid her special assessment and $413 towards restitution. Bruey still owes

restitution of $881,246.35.

4. Most recently, Bruey has made the following payments: October

2024: $65, September 2024: $65, August 2024: $58.

5. Bruey now requests that the Court order the Bureau of Prisons to

set her payments at $25 per month while she is incarcerated.

II. Legal Argument

Bruey’s motion (Doc. 181) appears to oppose the BOP’s Inmate

Financial Responsibility Program (IFRP) rather than the Court’s Schedule of

Payments. Specifically, Bruey claims in her motion that she is only earning

between $45 and $50 per month. However, the Clerk’s Office records show

that she has been making payments of between $58 to $65 for the past three

months. The undersigned contacted her assigned Case Manager in the BOP

and confirmed that she is in fact participating in the IFRP and that the

payment amounts she is trying to avoid in her motion are those that were set

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by the BOP as part of the BOP’s IFRP. These payments take into

consideration her income and funds available from outside sources.

The IFRP is a voluntary program. If Bruey is challenging an aspect of

her confinement, courts have found such a challenge should be brought under

18 U.S.C. § 2241 in the district of confinement. Nonetheless, her account

records and conversations with her BOP Case Manager show that Bruey was

receiving funds in addition to her payroll. Pursuant to the IFRP, all of her

available funds were taken into account by the BOP in arriving at her monthly

payment amount. The records show that she received sufficient funds to make

reasonable payments toward her restitution if prioritized. For example, she

had the following funds available to her:

• July 2024: $115 in deposits + $73.50 payroll
• August 2024: $165 in deposits + $50.03 payroll
• September 2024: $295 in deposits + $70.85 payroll
• October 2024: $75 in deposits + $50.68 payroll
• November 2024: $250 deposits + $50.03 payroll

A. Voluntary Participation in the IFRP

The IFRP, established by BOP regulations, is a work program designed

to help inmates develop a financial plan to meet certain financial obligations,

including the payment of restitution. See 28 C.F.R. § 545.11. Participation in

the IFRP is voluntary. See United States v. Boyd, 608 F.3d 331, 334 (7th Cir.

2010). Participation and compliance, however, affords inmates with specific

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benefits, such as assignment to outside work details and preferential housing

placement. See 28 C.F.R. § 545.11. Therefore, many inmates choose to

participate in the program, make meaningful payments to their obligations,

and take advantage of all benefits for those in compliance with their FRP.

The BOP evaluates the inmate’s total resources in setting the inmate’s

FRP payment plan. Thus, if an inmate is receiving deposits from outside

sources into their account, in order to participate in the IFRP, the inmate may

be required to use a portion of those funds toward their financial obligations,

in this case, to the victims of Bruey’s offense.

The undersigned requested and reviewed Bruey’s prison account

records in order to respond to this Court’s Order (Doc. 182) and spoke with

Bruey’s BOP Case Manager who provided her deposit records and the

formula used in the IFRP for calculating her IFRP payments. See Bruey’s BOP

Account Records attached as Composite Exhibit A. These records confirm

that in addition to her employment income through the BOP, Bruey receives

deposits from outside sources. The IFRP expects that a portion of deposited

funds be used for their financial obligations rather than simply spending on

commissary for themselves or transferring to other inmates.

B. Challenges to the IFRP

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The payment amount established by the IFRP has been found to be an

aspect of confinement. A challenge to the implementation of this program is a

challenge to the execution of her sentence. Thus, Bruey’s complaints, to the

extent they are about the IFRP, must be pursued under 28 U.S.C. § 2241 in

the district of her confinement. See Williams v. Pearson, 197 F. App'x 872, 876-

77 (11th Cir. 2006); United States v. Warmus, 151 F. App'x 783, 786-87 (11th

Cir. 2005); see also United States v. Gala, 698 F. App'x 602, 604 (11th Cir. 2017)

(holding that inmate's claim that he was coerced into participating in the IFRP

must be presented in a § 2241 petition filed in the district of confinement).

Even if this Court had jurisdiction over the matter, a § 2241 habeas petitioner

must exhaust her administrative remedies prior to filing suit. Santiago-Lugo v.

Warden, 785 F.3d 467, 475 (11th Cir. 2015).

Here, there is no evidence that Bruey has attempted to gain review of

her IFRP payments through the BOP's administrative process.

C. No Material Change in Circumstances

If the Defendant’s motion can be construed as a request for this Court

to stay her obligation to pay restitution while incarcerated under 18 U.S.C.

§ 3664(k), this argument is not supported by the facts and review of her BOP

account records. At the time of her sentencing, Bruey identified no significant

assets that could be used to pay toward the losses caused by her offenses. See

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Doc. 97 at pp. 28-29. The Court was also aware of her impending

incarceration status as the court sentencing her to incarceration, and still

required that Bruey make efforts to pay restitution while incarcerated. Doc.

109. Now, Bruey’s BOP records show that she receives deposits from outside

sources, which actually increases her ability to pay restitution while

incarcerated. 1 Therefore, if anything, Bruey’s records support that she does

and should continue to make reasonable efforts to repay her restitution

obligation. There is no material change in her financial circumstances that

would support staying her restitution obligation during incarceration to the

detriment of the victims.

D. Victim Has a Right to Restitution in Shortest Time Reasonably

Possible

In enacting the Crime Victims’ Rights Act (CVRA), Congress imposed

an affirmative duty on Department of Justice employees to use their “best

efforts to see that crime victims” are accorded their rights, including their right

to “full and timely” restitution. 18 U.S.C. § 3771(a)(6), (c). And, the CVRA

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Notwithstanding the FRP, if a person obligated to pay restitution receives
substantial resources from any source, such person shall be required to apply
the value of such resources to any restitution or fine still owed. 18 U.S.C. §
3664(n). The source of the funds is not determinative in the analysis. The
criminal restitution order operates as a lien on all of Bruey’s property and her
rights to property. 18 U.S.C. § 3613(c). This is true regardless of Bruey’s
desire to retain the funds for her own use and enjoyment.

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further provides that the court “shall ensure” that crime victims are afforded

their rights. 18 U.S.C. § 3771(b). Further, when payment cannot be made in

full immediately, the length of payments must be the shortest time in which

payment is reasonably possible. See 18 U.S.C. § 3572(d)(2) (“[T]he length of

time over which scheduled payments will be made shall be set by the court,

but shall be the shortest time in which full payment can reasonably be made.”)

The statutes are designed to protect victims and afford them the right to be

made whole in the shortest time reasonably possible.

III. Conclusion

Challenges to the FRP amount shall be brought as a § 2241 petition in

the district of her confinement after exhausting all administrative remedies,

which does not seem to have occurred in this case. Nonetheless, the IFRP is

established by regulation and participation in the program is voluntary. If

Bruey wishes to avail herself of the benefits of the IFRP program, she cannot

also object to the goal of the IFRP, which is to compensate the victims of her

offenses.

Further, to the extent this motion can be construed as a request to stay

her restitution obligation under 18 U.S.C. § 3664(k), Bruey’s account records

do not support a finding of a material change in her financial circumstances

that would justify staying her obligation to pay restitution while incarcerated.

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stead, her records show that she has a greater ability to pay restitution because

in addition to her prison payroll, she receives and spends significantly from

outside sources.

Based on the foregoing, Bruey’s motion (Doc. 181) should be denied.

Respectfully submitted,

ROGER B. HANDBERG
United States Attorney

By: s/ Julie A. Simonsen
JULIE A. SIMONSEN
Assistant United States Attorney
Florida Bar No. 70647
Financial Litigation Program
400 North Tampa Street, Suite 3200
Tampa, FL 33602
Telephone: (813) 274-6038
Facsimile: (813) 301-3103
E-Mail: FLUDocket.mailbox@usdoj.gov

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CERTIFICATE OF SERVICE

I certify that on December 13, 2024, I electronically filed the foregoing with

the Clerk of Court by using the CM/ECF system, which will send a notice of

electronic filing to all parties of record, and I mailed the foregoing document and the

notice of electronic filing by first-class mail to the following non-CM/ECF

participant:

Amber Rewis Bruey, Register Number 63267-509
Alderson, West Virginia 24910

s/Julie A. Simonsen
JULIE A. SIMONSEN
Assistant United States Attorney

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