12-4392-cr
United States v. Hyde

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT


                                SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT'S LOCAL RULE 32.1.1.      WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 14th
day of May, two thousand fourteen.

PRESENT:   JOHN M. WALKER, JR.,
           DENNY CHIN,
           CHRISTOPHER F. DRONEY,
                     Circuit Judges.

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UNITED STATES OF AMERICA,
                    Appellee,

                        -v-                              12-4392-cr

KENNEDY J. HYDE,
                        Defendant-Appellant.

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FOR APPELLEE:                     Edward R. Broton and Brenda K. Sannes,
                                  Assistant United States Attorneys, for
                                  Richard S. Hartunian, United States
                                  Attorney for the Northern District of
                                  New York, Syracuse, New York.

FOR DEFENDANT-APPELLANT:          Paul Camarena, North & Sedgwick Law,
                                  Chicago, Illinois.
           Appeal from the United States District Court for the

Northern District of New York (Mordue, J.).

           UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

           Defendant-appellant Kennedy Hyde appeals from the judgment

of the district court entered November 2, 2012, convicting him,

following a jury trial, of making false statements under penalty of

perjury in connection with a Title 11 bankruptcy proceeding, in

violation of 18 U.S.C. § 152(2)-(3).         We assume the parties'

familiarity with the facts and procedural history of the case, which

we summarize as follows:

           On October 26, 2012, the district court sentenced Hyde to

27 months' imprisonment and three years' supervised release.             The

district court imposed four special conditions of supervised

release.

           Hyde appeals only with respect to the fourth special

condition of supervised release.1         This condition reads:



1
            Hyde filed his notice of appeal on November 9, 2012, after the
district court entered its original judgment on November 2, 2012. The district
court did not determine the amount of restitution until it entered an amended
judgment on February 22, 2013. Hyde did not, however, file a new notice of
appeal from the amended judgment. The government does not contest the timeliness
of Hyde's appeal. While Hyde's notice of appeal was likely effective with
respect to the original judgment, we conclude that it "ripened into an effective
notice" of appeal from the amended judgment as well. United States v.
Kapelushnik, 306 F.3d 1090, 1093-94 (11th Cir. 2002); see also Zeno v. Pine
Plains Cent. Sch. Dist., 702 F.3d 655, 663 n.6 (2d Cir. 2012)("Although
[appellant] filed a premature notice of appeal, because the district court

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             Until restitution is paid in full, the defendant
             is restrained from transferring any asset with a
             value of $500 or more, unless it is necessary to
             liquidate and apply the proceeds of such property
             to the order of restitution.

App. at 24.

             Hyde contends that the fourth special condition

constitutes garnishment and violates the Consumer Credit Protection

Act (the "CCPA"), 15 U.S.C. § 1671 et seq.          Hyde further argues that

the condition prevents him from paying basic living costs –- such as

rent -- as the condition bars him from "transferring any asset with

a value of $500 or more."       Appellant's Br. at 3.      We disagree, for

two reasons.2

             First, the fourth condition is not tantamount to

garnishment as contemplated by the CCPA.          Garnishment is "any legal

or equitable procedure through which the earnings of any individual

are required to be withheld for payment of any debt."            15 U.S.C.

§ 1672(c).    The garnishment of "earnings" refers to the withholding

of "periodic payments of compensation and does not pertain to every

asset that is traceable in some way to such compensation."             In re

Kokoszka, 479 F.2d 990, 997 (2d Cir. 1973), aff'd sub nom. Kokoszka

entered an amended final judgment before the appeal was heard and [appellee]
suffered no prejudice, the jurisdictional defect has been cured.").
2
            The government argues that plain error review applies because Hyde
failed to object to the special conditions at sentencing. Hyde argues that
"relaxed plain error review" is appropriate under our decision in United States
v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010). We need not decide the question of
the standard of review, however, because the issue presented is largely a matter
of law and we conclude that Hyde's argument fails even under de novo review.

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v. Belford, 417 U.S. 642 (1974).    An order does not constitute

garnishment if it "simply directs restitution payments" and "d[oes]

not require payment of restitution from a specific asset."    United

States v. Jaffe, 417 F.3d 259, 265-66 (2d Cir. 2005) (upholding

restitution order in amount that could require defendant to sell

home, as order did not require payment from any specific asset).

Here, the fourth special condition neither requires the withholding

of any of Hyde's earnings nor compels Hyde to draw restitution

payments from a specific asset.    The condition thus does not

constitute garnishment and falls outside the scope of the CCPA.

See id.

             Second, Hyde misreads the plain language and purpose of

the condition.    The condition does not prevent him from spending

money to pay for basic living expenses, such as rent.    Rather, the

condition bars him from transferring assets with a value of $500 or

more unless it is necessary to liquidate any such asset to pay

restitution.    See also United States v. Green, 618 F.3d 120, 122-24

(2d Cir. 2010) (considering context in which challenged supervised

release condition was imposed to guide interpretation of condition's

language).    The plain language of the condition therefore does not

prohibit Hyde from spending money for housing, transportation, and

subsistence; it merely says that he cannot liquidate assets except




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to pay restitution.    We find no error here that warrants

vacatur or reversal.

                                  * * *

          We have considered Hyde's remaining arguments and conclude

they are without merit.   For the foregoing reasons, we AFFIRM the

judgment of the district court.

                                        FOR THE COURT:
                                        Catherine O'Hagan Wolfe, Clerk




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