United States District Court, D. Maryland
MEMORANDUM AND ORDER
James
K. Bredar Chief Judge
Pending
before the Court is the motion by Defendants Kimberly and
Michael Belcastro to correct a clerical error in their
criminal judgments. (ECF No. 57.) The motion is brought
pursuant to Federal Rule of Criminal Procedure 36, which
provides, "After giving any notice it considers
appropriate, the court may at any time correct a clerical
error in a judgment, order, or other part of the record, or
correct an error in the record arising from oversight or
omission." The Government opposes the motion. (ECF No.
58.) No. hearing is necessary to resolve the matter. Local
Rule 105.6 (D. Md. 2018). The motion will be granted.
The
essence of the Government's case against the Belcastros
was that they had knowingly taken Social Security benefits
paid to Kimberly's deceased mother and converted them to
their own use. In the judgments against them, the Court
imposed on Kimberly[1] a restitution obligation of $65, 959 and
imposed upon Michael a restitution obligation of $18, 000.
Kimberly was sentenced on August 10, 2005, and the judgment
against her was signed on August 11, 2005, and entered on the
docket on August 12, 2005. (ECF No. 33.) Michael was
sentenced on November 28, 2005, and the judgment against him
was signed on November 30, 2005, and entered on the docket on
December 1, 2005. (ECF No. 38.) Neither judgment indicated
the restitution was to be considered joint and several
liability. That circumstance is the basis for the
Government's objection to the Belcastros' motion.
(Gov't Opp'n 1-2.)
The
absence of the joint and several liability designations,
however, does not square with the facts of the case, as set
forth in the plea agreements and the presentence
investigation reports ("PSRs"). Nor does it square
with what the Government alleged in the indictment, where
Kimberly and Michael were charged in the same count with
theft of Government property in the amount of $65, 959, a
violation of 18 U.S.C. § 641. (Indictment, Count One,
ECF No. 1.) Kimberly pled guilty to that count and the other
count against her was dismissed. On August 16, 2005, a few
days after the Court's judgment was entered against
Kimberly, a one-count superseding information was filed
against Michael on the charge of receipt of stolen Government
property in the amount of $1, 000, also in violation of 18
U.S.C. § 641 (ECF No. 34), and he pled guilty to that
the same day.
The
statement of facts in Kimberly's plea agreement sets
forth the history of the withdrawals Kimberly made from her
deceased mother's checking account, into which the Social
Security benefits were deposited. The statement of facts
indicates that many of the checks Kimberly wrote were
deposited into her joint checking account with Michael. She
also wrote some checks payable to Michael and, with one
exception, he deposited those into their joint checking
account. The plea agreement then states the total amount she
stole was approximately $65, 959.
The
statement of facts in Michael's plea agreement recites
similar facts to those in Kimberly's plea agreement. It
further indicates that he "personally endorsed eight (8)
of the checks, totaling $18, 000." It also states,
"Kimberly Belcastro took a total of $65, 959 in Social
Security benefits from her mother's account." As to
the count in the superseding information against Michael, his
plea agreement's statement of facts says, "On or
about March 31, 2001, the Defendant endorsed check number
6920, in the amount of $1, 000, drawn on his
mother-in-law's account and written by his wife. The
Defendant then caused the check to be deposited into the
joint account he shared with his wife." The statement of
facts in Kimberly's plea agreement was incorporated into
her PSR. The same was true as to Michael. Further,
Kimberly's PSR stated, "The Government has provided
the following information concerning restitution: Restitution
in the amount of $65, 959.00 is outstanding . . . ." In
Michael's PSR, it states, "The Government has
provided the following information concerning restitution:
The amount of $69, 959 [sic] is owed." Given
the earlier recitation in Michael's PSR as to the total
amount taken being $65, 959, the Court assumes the figure of
"$69, 959" is intended to be "$65, 959."
It is evident to the Court, after reviewing the record, that
the $18, 000 attributable to Michael's wrongdoing, as
reflected in his plea agreement, is subsumed within the $65,
959 stolen by Kimberly. As a result, it was a clerical,
mathematical error for the Court to treat the $18, 000 as
additional to the $65, 959. Based upon the facts before the
Court, it seems the greater fault lay with Kimberly, and that
is why she was required to make restitution for the full
amount stolen, and Michael was not made responsible for that
total amount. But the Court rightly recognized that Michael
was responsible for $18, 000 out of the $65, 959. Even so,
Kimberly and Michael should have been designated as jointly
and severally liable for the $ 18, 000. The judgments entered
failed to do so. Pursuant to Rule 36, the Court now rectifies
that omission and GRANTS the motion (ECF No. 57). Amended
judgments will be entered in accordance with this memorandum
and order. Further, upon entry of the amended judgments, the
Government SHALL RETURN to the Belcastros the $18, 000
wrongly paid as restitution, plus the interest paid by them
on the $18, 000. The Clerk SHALL MAIL a copy of this
memorandum and order to the Belcastros.
SO
ORDERED.
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Notes:
[1] Because they have the same surname,
the Court refers to them by their ...