United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO REDUCE
RESTITUTION, MOTION FOR RETURN OF PROPERTY, AND MOTION FOR
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
criminal defendant was tried and convicted of Social Security
Fraud and conspiring to import and distribute marijuana,
among other things. The defendant moves to reduce the amount
of restitution he owes the Social Security Administration,
for the return of certain property subject to forfeiture, and
for a reduction in his sentence. The Court denies the motions
because it correctly imposed these penalties and, if not, the
Court does not have the power to alter the defendant's
final criminal sentence more than ten years after it was
September 7, 2006, a federal grand jury indicted Michael
Pelletier for conspiring to import and distribute marijuana,
Social Security fraud, money laundering, and structuring.
Indictment (ECF No. 1). At the arraignment, on
September 15, 2006, Mr. Pelletier pleaded not guilty on all
counts. Minute Entry for Arraignment Proceeding (ECF
July 12 to July 19, 2007, Mr. Pelletier was tried before a
jury. Trial Tr. (ECF. No. 302, 307-308, 311-12, 335,
338-39, 399-400, 406, 411-13, 518-19). The Government
produced documentary and testimonial evidence that Mr.
Pelletier had knowingly failed to disclose any employment or
income while receiving benefits from approximately 1977
through 2006. See Trial Tr. at 176:8-177:18 (ECF No.
19, 2007, Mr. Pelletier was found guilty on all counts, with
the exception of one of the money laundering counts, which
the Government dropped. See Jury Verdict (ECF No.
280). The jury found that the conspiracy involved the
distribution of 1, 000 kilograms or more of marijuana.
Id. (Count 2). This finding- combined with Mr.
Pelletier's prior convictions-made him subject to a
statutorily mandated life sentence. See 21 U.S.C.
§ 841(b)(1)(A) (“If any person commits a violation
of this subparagraph . . . after two or more prior
convictions for a felony drug offense have become final, such
person shall be sentenced to a mandatory term of life
imprisonment without release . . . .”); U.S.S.G. §
5G1.1(b) (“Where a statutorily required minimum
sentence is greater than the maximum of the applicable
guideline range, the statutorily required minimum sentence
shall be the guideline sentence”).
January 22, 2008, the Court sentenced Mr. Pelletier to life
in prison, and ordered him to pay restitution. Min.
Entry (ECF No. 382). On January 23, 2008, the Court
entered the judgment against Mr. Pelletier, including a
restitution amount of $83, 847.55 to the Social Security
Administration. J. (ECF No. 384). On February 5,
2008, the Court, as permitted by Federal Rule of Criminal
Procedure 36, twice amended the judgment to correct clerical
mistakes. Amended J. (ECF No. 388); Second
Amended J. (ECF No. 390). The Court, after assessing
Defendant's ability to pay, ordered immediate payment of
the $83, 847.55 restitution obligation in a lump sum.
Second Amended J. at 6-7 (ECF No. 390). The Court
provided that any amount Mr. Pelletier was unable to pay
immediately was due and payable during his term of
incarceration. Id. Mr. Pelletier's counsel
stated that he had no objection following the Court's
statement during sentencing that Mr. Pelletier's
“[r]estitution is mandatory in the amount of $83,
847.55.” Sentencing Tr. at 16:8-15 (ECF No.
Court also ordered forfeiture of several pieces of real and
personal property, including several automobiles. Final
Order of Forfeiture (ECF No. 383); Second Amended
J. (ECF No. 390). One such piece of real property was
located at 574 Main Street, Van Buren, Maine (“the
Property”). Id. That property consisted of an
automotive shop and upstairs residence that Mr. Pelletier
purchased for $19, 000. Id.; Trial Tr. at
56:14-69:6 (ECF No. 412). During the charge conference at the
close of trial, the Government stated that it intended to
dismiss Count Four, the money-laundering charge pertaining to
the Property, but the Property remained relevant to
forfeiture based on the drug charges contained in Counts One
and Two because evidence showed that the money used to
purchase and improve that property "was drug
money." Trial Tr. at 28:14-33:20 (ECF No. 413).
Defense counsel did not object. Id. The Jury
returned a verdict in favor of forfeiture of the Property
based on its finding that the Property was derived from
proceeds Mr. Pelletier obtained from his involvement in the
drug offenses in Counts One and Two of the indictment for
which he had been convicted. Verdict Form at 1 (ECF
January 29, 2008, Mr. Pelletier appealed his conviction based
on evidentiary issues, jury instructions, and the sufficiency
of the evidence, but he did not appeal the forfeiture order
or the restitution amount. Notice of Appeal (ECF No.
385); United States v. Pelletier, 666 F.3d 1 (1st
Cir. 2011). On December 1, 2011, The United States Court of
Appeals for the First Circuit affirmed Mr. Pelletier's
conviction. Pelletier, 666 F.3d at 12. The United
States Supreme Court denied Mr. Pelletier's petition for
a writ of certiorari and his petition for rehearing.
Pelletier v. United States, 132 S.Ct. 2683 (2012);
Pelletier v. United States, 133 S.Ct. 92 (2012).
30, 2013, Mr. Pelletier filed a motion under 28 U.S.C. §
2255 arguing that he was illegally detained and sentenced.
Pet'rs' Mot. to Vacate, Correct, or Set Aside an
Illegal Sentence Pursuant to 28 U.S.C. § 2255 (ECF
No. 682). On June 17, 2014, the Magistrate Judge issued a
recommended decision in which he recommended that the §
2255 petition be denied. Recommended Decision on 28
U.S.C. § 2255 Mot. (ECF No. 712). On July 28, 2014,
Mr. Pelletier objected to the recommended decision.
Movant's Objs. to the Magistrate Judge's R. &
R. (ECF No. 715). On December 29, 2014, Mr. Pelletier
filed a motion to supplement his § 2255 petition and the
Court granted his motion on December 30, 2014. Mot. to
Supplement (ECF No. 718). On January 14, 2015, Mr.
Pelletier filed a motion to amend his § 2255 motion.
Mot. to Amend Pet. (ECF No. 722). On February 4,
2015, the Government responded to Mr. Pelletier's motion
to amend and supplement his petition. Resp.'s Obj. to
Pet'r's Third Mot. to Amend his Previously Amended
and Supplemented 28 U.S.C. § 2255 Pet. (ECF No.
723). On March 19, 2015, the Government responded to Mr.
Pelletier's motion to supplement. Gov't's
Resp. to Pet'r's Supplement to his Thrice-
Amended 28 U.S.C. § 2255 Mot.; and Renewed Mot. for
Summ. Dismissal (ECF No. 729).
April 6, 2015, Mr. Pelletier sought the return of the
Property and argued that his restitution obligation should be
recalculated to reflect only the amount of Social Security
benefits he received within the five-year period preceding
his indictment, rather than the whole period since 1977.
Mot. to Supplement (ECF No. 730). On November 24,
2015, the Court ruled that Defendant's forfeiture and
restitution arguments were time-barred and not cognizable in
§ 2255 proceedings. Order Affirming the Recommended
Decision of the Magistrate Judge at 12 (ECF No. 733).
January 26, 2016, Mr. Pelletier appealed the order.
Notice of Appeal (ECF No. 736). On March 7, 2017,
the First Circuit denied his request for a certificate of
appealability and terminated his appeal. Pelletier v.
United States, No. 16-1119 (1st Cir. Mar. 7, 2017) (ECF
March 13, 2017, Mr. Pelletier moved for a reduction of the
restitution obligation due to the Social Security
Administration. Mot. to Reduce Restitution (ECF No.
758) (Def.'s Restitution Mot.). On March 20,
2017, the Government responded. Gov't's Resp. in
Opp'n to Def.'s Mot. to Reduce Restitution (ECF
No. 764) (Gov't Restitution Opp'n). On April
24, 2017, Mr. Pelletier replied to the Government's
response. Reply to Gov't's Response (ECF No.
765) (Def.'s Reply).
March 13, 2017, Mr. Pelletier moved for the return of the
Property. Rule 41(g) Mot. for Return of Property
(ECF No. 759) (Def.'s Forfeiture Mot.). The
Government responded on April 7, 2017. Gov't's
Resp. in Opp'n to Def.'s Mot. for Return of
Property (ECF No. 760) (Gov't Forfeiture
Opp'n). Mr. Pelletier did not reply to the
11, 2017, Mr. Pelletier moved for a hearing regarding a
reduction of his sentence. Mot. for Sentence
Reduction (ECF No. 767) (Def.'s Sentence
Mot.). The Government responded on May 22, 2017.
Gov't's Obj. to Def.'s Mot. for Sentence
Reduction (ECF No. 768) (Gov't Sentence
Opp'n). Mr. Pelletier did not reply to the
THE PARTIES' POSITIONS
Motion to Reduce Restitution
Michael Pelletier's Motion
Pelletier argues that the Court's restitution order of
$83, 847.55 was improper because payments by the Social
Security Administration are subject to a five-year statute of
limitations. Def.'s Restitution Mot. at 1. He
cites United States v. Silkowski, 32 F.3d 682 (2nd
Cir. 1993), in support of this argument. Id. He
points out that he was receiving less than $500.00 per month
in disability benefits, and he concludes that a large portion
of his restitution order must have been based on Social
Security payments beyond the five-year period preceding his
The Government's Response
Government responds that Mr. Pelletier is not entitled to
reduced restitution for three reasons. First, the Government
argues that the restitution obligation constitutes a final
judgment that cannot now be challenged unless one of a few
narrow exceptions applies. Gov't Restitution
Opp'n at 4. The Government contends that none of
these exceptions applies to Mr. Pelletier's now
nine-year-old restitution order. Id. at 4-10.
the Government claims that even if the order could be
challenged at this late date, the restitution amount was
proper. Id. at 10. The Government maintains that the
Court properly based the restitution amount on the whole
thirty year period and was unconstrained by the five-year
statute of limitation period of 18 U.S.C. § 3283(a).
Id. It cites United States v. Williams, 356
Fed. App'x 167, 170 (10th Cir. 2009); and United
States v. Brown, 665 F.3d 1239, 1253 (11th Cir. 2011)
for the proposition that defendants must pay restitution for
losses occurring outside the statute of limitations period
when the offense encompassed a “scheme” extending
beyond that period. Id. at 10-11. Social Security
Fraud under 42 U.S.C. § 408(a)(4), the Government
insists, is an offense containing such a scheme. Id.
at 11. The Government also argues that the restitution order
was proper because courts have allowed restitution for
conduct closely related to the offense of conviction.
Id. at 11-12 (citing Brown, 665 F.3d at
1252; United States v. Valladares, 544 F.3d 1257,
1268-70 (11th Cir. 2008)). The Government portrays
Silkowski as irrelevant, because it was decided
before the enactment of 28 U.S.C. § 3663A in the
Mandatory Victims Restitution Act, which now controls the
Court's authority to impose restitution. Id. at
the Government argues that, to the extent Mr. Pelletier's
Restitution Motion can be construed as a § 2255
petition, the relief sought is unavailable. Id.
(citing Order Affirming the Recommended Decision of the
Magistrate Judge (ECF No. 733); United States v.
Chorney, 453 Fed. App'x 4, 8 (1st Cir. 2011)).
Michael Pelletier's Reply
Pelletier's reply focuses on the substantive propriety of
the restitution amount and the damage to the fairness,
integrity, and public reputation of the judiciary from an
unauthorized order. See Def.'s Reply at 3
(quoting United States v. Burns, 843 F.3d 679 (7th
Cir. 2016)). Mr. Pelletier points to two district court cases
from this circuit concluding that the fraudulent receipt of
Social Security payments constitutes a series of individual
offenses each subject to the statute of limitations, rather
than a “continuing offense” which would authorize
restitution beyond the statute of limitations period.
Id. at 1-2 (citing United States v. Bundy,
No. 2:08-cr-196-DBH-1, 2009 WL 902064, at *1 (D. Me. Mar. 31,
2009); United States v. Powell, 99 F.Supp.3d 262,
264-65 (D.R.I. 2015)).
Mr. Pelletier argues that the Court can modify its previous
order or re-sentence him because the Supreme Court has
indicated that district courts retain their power to
determine restitution amounts beyond the time limits imposed
in 18 U.S.C. § 3664. Id. at 2 (citing Dolan
v. United States, 560 U.S. 605 (2010)).
Motion to ...