Joint Response to the Order to Show Cause (Ecf No. 48) — No. 1:22-cr-00324 (Dkt. 49, D. Colo.)

Summary

A Joint Response to the Order to Show Cause (ECF No. 48), Document 49, filed August 23, 2023 in United States v. Edward Baker Harrington, Criminal Case No. 22-cr-00324-NYW (Case No. 1:22-cr-00324-NYW), in the U.S. District Court for the District of Colorado. The response states that the defendant pled guilty on March 23, 2023 to Counts 1 and 9, charging wire fraud under 18 U.S.C. § 1343 and money laundering under 18 U.S.C. § 1957, and was sentenced on July 14, 2023 to 51 months with restitution of $1,078,033.50. After conferring with defense counsel, the government and the defendant ask the court to find that he cannot pay additional interest and to waive it under 18 U.S.C. § 3612(f)(3)(A).

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“Joint Response to the Order to Show Cause (Ecf No. 48) — No. 1:22-cr-00324 (Dkt. 49, D. Colo.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/joint-response-to-the-order-to-show-cause-ecf-no-48-no-1-22-cr-00324-d-bc8a50d5cf/, SHA-256 cf19886ba6647567199db33c09f384580c4c3fb98cc46c089c25451dbdd291cb.

Full text

Case No. 1:22-cr-00324-NYW Document 49 filed 08/23/23 USDC Colorado pg 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Criminal Case Number 22-cr-00324-NYW

UNITED STATES OF AMERICA,

Plaintiff,

1. EDWARD BAKER HARRINGTON,
a/k/a BAKER HARRINGTON,
a/k/a E. BAKER HARRINGTON,
a/k/a EDWARD BAKER HARRINGTON II,

Defendant.

JOINT RESPONSE TO THE ORDER TO SHOW CAUSE (ECF NO. 48)

After conferring with defense counsel, the government respectfully submits the

following joint response to the Court’s Order to Show Cause, dated August 21, 2023.

(ECF No. 48.)

BACKGROUND

On October 18, 2022, a grand jury returned a 13-count Indictment against

defendant Edward Baker Harrington. (ECF No. 1.)

On March 23, 2023, Mr. Harrington pled guilty to Counts 1 and 9 of the

Indictment, which charged violations of 18 U.S.C. § 1343 (wire fraud) and 18 U.S.C.

§ 1957 (money laundering). Pursuant to the terms of the Plea Agreement, Mr.

Harrington agreed that he had an obligation to pay restitution on the amount of his
1
Case No. 1:22-cr-00324-NYW Document 49 filed 08/23/23 USDC Colorado pg 2 of 6

fraudulent Paycheck Protection Program loans, plus interest accruing through the date

of sentencing. (ECF No. 25 at 11.) The Plea Agreement contemplated that “[f]inal

interest figures, as well as information regarding the apportionment of restitution

between the SBA and third-party lenders” would be presented at the time of sentencing.

(Id.)

On June 30, 2023, the government submitted its Statement Regarding

Restitution, in which the government represented that the total amount of restitution was

$1,078,033.50, which included $24,681.32 of interest which had accrued through the

date of sentencing. (ECF No. 41; see also ECF No. 41-1 (collecting SBA Certified

Statements of Accounts reflecting accrued interest through the date of sentencing).)

At the sentencing hearing on July 14, 2023, the Court sentenced Mr. Harrington

to 51 months’ imprisonment, followed by 3 years’ supervised release. (ECF No. 45.)

The Court further ordered that Mr. Harrington: (1) pay restitution in the amount of

$1,078,033.50, which included interest through the date of sentencing; (2) forfeit his

interest in the following property to the United States: a money judgment in the amount

of $1,012,797.95 (the proceeds of the offenses of conviction); and (3) pay a $200

special assessment. (Id. at 6, 8.) The Court did not impose a fine. (Id. at 6.)

On August 21, 2023, the Court issued an Order to Show Cause “why this Court

should not AMEND the Judgment [45] to reflect that any additional interest be waived

based on the Defendant’s inability to pay pursuant to 18 U.S.C. s. 3612(f)(3).” (ECF

No. 48.)

2
Case No. 1:22-cr-00324-NYW Document 49 filed 08/23/23 USDC Colorado pg 3 of 6

ANALYSIS

18 U.S.C. § 3612(f)(1) provides that “[t]he defendant shall pay interest on any

fine or restitution of more than $2,500, unless the fine is paid in full before the fifteenth

day after the date of the judgment.” However, pursuant to 18 U.S.C. § 3612(f)(3), the

Court may modify the interest owed by the defendant under certain conditions 1:

MODIFICATION OF INTEREST BY COURT.—If the court
determines that the defendant does not have the ability to
pay interest under this subsection, the court may—

(A) waive the requirement for interest;

(B) limit the total of interest payable to a specific dollar
amount; or

1 The government notes that courts are split on whether a district court may

modify the interest requirement post-sentencing. See United States v. Phillips, 9 F.4th
382, 389 (6th Cir. 2021) (concluding a district court “could exercise its power under
§ 3612(f)(3) to waive restitution interest after sentencing” but noting that the decision
whether to do so falls within the district court’s discretion); United States v. Coleman,
319 F. App’x 228, 230 (4th Cir. 2009) (finding § 3612(f)(3) permits the court, post-
judgment, to waive or limit the payment of interest upon a finding that the defendant is
unable to pay interest); but see United States v. Brumfield, 125 F. Supp. 3d 648, 651
(W.D. Mich. 2015) (recognizing that “[d]istrict courts also have reached different results,
but by the Court’s count, the majority of them have concluded that § 3612(f)(3) does not
provide post-sentencing jurisdiction”). It appears that the Tenth Circuit has not ruled on
this issue. See United States v. Turner, 2023 WL 1927405, at *2 (D. Kan. Feb. 10,
2023) (recognizing that the Tenth Circuit has not directly addressed the issue of
whether § 3612(f)(3) is applicable post-sentencing).

However, because the Judgment in this case neither ordered the payment of
post-judgment interest on restitution pursuant to § 3612(f)(1) nor waived post-judgment
interest pursuant to § 3612(f)(3) (see ECF No. 45 at 6), the government believes that
the Court need not reach the issue regarding its authority to modify the interest
requirement post-sentencing as the Court has the authority to amend the Judgment to
rule on this matter pursuant to Federal Rule of Criminal Procedure 36. See Fed. R.
Crim. P. 36 (“After giving any notice it considers appropriate, the court may at any time
. . . correct an error in the record arising from . . . omission”).
3
Case No. 1:22-cr-00324-NYW Document 49 filed 08/23/23 USDC Colorado pg 4 of 6

After conferring on this matter, the parties agree that Mr. Harrington does not

have the ability to pay additional interest under § 3612(f). In addition to the substantial

restitution and forfeiture obligations owed in connection with this case, the Presentence

Investigation Report reflects that Mr. Harrington has numerous other significant financial

liabilities, including alimony payments and outstanding student loan debt. (ECF No. 36

¶¶ 89–101.) Additionally, because Mr. Harrington is now serving his term of

incarceration imposed in this case, he will have a limited ability to earn income for the

next several years.

In light of the defendant’s limited financial means and substantial outstanding

financial obligations, the parties respectfully request that the Court find that

Mr. Harrington does not have the ability to pay any additional interest on his restitution

order and waive any additional requirement for interest under § 3612(f)(3)(A).

4
Case No. 1:22-cr-00324-NYW Document 49 filed 08/23/23 USDC Colorado pg 5 of 6

Respectfully submitted this 23rd day of August, 2023.

COLE FINEGAN
United States Attorney

By: s/ Nicole C. Cassidy
Nicole C. Cassidy
Martha A. Paluch
Assistant United States Attorneys
United States Attorney’s Office
1801 California Street, Suite 1600
Denver, Colorado 80202
Telephone: (303) 454-0100
Email: nicole.cassidy@usdoj.gov
Email: martha.paluch@usdoj.gov

Attorneys for the Government

VIRGINIA L. GRADY
Federal Public Defender

By: s/ Mary V. Butterton
MARY V. BUTTERTON
Assistant Federal Public Defender
633 17th Street, Suite 1000
Denver, CO 80202
Telephone: (303) 294-7002
FAX: (303) 294-1192
Mary_Butterton@fd.org

Attorney for the Defendant

5
Case No. 1:22-cr-00324-NYW Document 49 filed 08/23/23 USDC Colorado pg 6 of 6

CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of August, 2023, I electronically filed the
foregoing JOINT RESPONSE TO THE ORDER TO SHOW CAUSE (ECF NO. 48) with
the Clerk of the Court using the CM/ECF system which will send notification of such
filing to all counsel of record in this case.

s/ Nicole C. Cassidy
Nicole C. Cassidy
Assistant United States Attorney

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