Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Berger

United States District Court, W.D. Pennsylvania

August 30, 2017

UNITED STATES OF AMERICA,
v.
VASILIA BERGER, a/k/a VASILIA KLIMANTIS, Defendant.

          OPINION

          Joy Flowers Conti Chief United States District Judge.

         Pending before the court is a motion to reset restitution (ECF No. 163) filed by defendant Vasilia Berger (“defendant”), who is currently incarcerated at Federal Prison Camp, Alderson (“FPC Alderson”). This is defendant's third request to modify the court's restitution order, i.e., for the court to set a restitution payment schedule.[1] The court denied defendant's first request because, among other reasons, she did not argue or prove there was a material change in her economic circumstances upon which the court may modify its restitution order and set a payment schedule, pursuant to 18 U.S.C. § 3664(k).[2] (ECF No. 137.) The court denied defendant's second request because, among other reasons, defendant argued there had been a material change in her economic circumstances, but did not attach to her motion evidence to satisfy her burden[3] to show there had been a material chance in her economic circumstances. (ECF No. 156.)

         Defendant now argues that she is entitled to a modification of the court's restitution order because there has been a material change in her economic circumstances, pursuant to 18 U.S.C. § 3664(k), and attached to her motion various exhibits in support of her argument.[4] The government filed a response to defendant's motion arguing that defendant's request is not properly before the court because the exhibits attached to her motion “make clear” that she “has not exhausted her administrative remedies” with respect to her voluntary participation in the IFRP. (ECF No. 165 at 2.) Defendant filed a reply to the government's response and attached to the reply the entirety of the FPC Alderson inmate handbook. (ECF No. 166.) Defendant in the reply argues that she utilized all administrative remedies available to her at FPC Alderson with respect to the IFRP. (ECF No. 166 at 2-4.)

         According to defendant, she is required to pay as part of the IFRP $178 per month toward her restitution obligation. Defendant argues that paying that amount “is placing stress on [her] family because [she] is limited on how much [she] can offer to provide for her daughter, ” who is in the care of her family members. (ECF No. 163 at 4.) Defendant, however, did not satisfy her burden to prove that there has been a material change in her financial circumstances warranting a modification of the court's restitution order.

         Defendant's presentence investigation report provides that defendant had a negative net worth in light of her debt and the following detail with respect to her net monthly cash flow:

Defendant's total monthly income:

$2, 800

Necessary Living Expenses:

Property mortgage(s)/rent

$1, 300

Food

$240

Utilities

$292

Life insurance

$15.67

Rental Insurance

$44

Health Insurance

$299

Clothing

$125

Co-payments (health insurance)

$500

Total Expenses:

$2, 365.67

NET MONTHLY CASH FLOW:

$434.44

(ECF No. 82 at 19-20.)

         According to defendant, she presently receives $800 per month from the operation of her restaurant[5] and averages $31 per month in payment from her work at FPC Alderson, for a total monthly income of $831. Defendant's “survival” budget reflects that her expenses total $275.24 per month. (ECF NO. 163-1 at 8-9.) The exhibits attached to defendant's submissions show that since defendant was sentenced in this case, her daughter began receiving $1, 139 per month from the Social Security Administration because of the death of her father, Jay Berger. A letter from an accountant provides that the $1, 139 received per month “does not cover the food, clothing and shelter” for defendant's daughter, and defendant's “family will not help to pay any of the expenses.” (ECF No. 163-1.)

         Based upon the information provided by defendant, her financial circumstances are reflected in the chart below:

Defendant's total monthly income:

$831

Defendant's daughter's social security income:

$1, 139

Necessary Living Expenses

$275.24

Daughter's Necessary Living Expenses

$______

NET MONTHLY CASH FLOW:

$1, 694.76

         Defendant did not submit to the court information with respect to the necessary monthly living expenses for her daughter. The court cannot, therefore, properly assess under § 3664(k) whether there has been a material change in defendant's economic circumstances that warrants a modification of the restitution order because the court cannot compare how defendant's current expenses incurred compare to her expenses at the time of sentencing. The court notes, however, that although defendant's total income significantly decreased since the time of sentencing, her monthly expenses also decreased in light of her incarceration, and her daughter's expenses are offset by the $1, 139 received from the Social Security Administration.

         Defendant finds herself in unfortunate circumstances. The court, however, is constrained by § 3664(k). Defendant did not satisfy her burden to show that modification of her restitution order is proper in this case. Defendant's motion to reset restitution while incarcerated (ECF No. 163) will, therefore, be DENIED. An appropriate order will be entered.

---------


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.