        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                Fifth Circuit

                                                                   FILED
                                                                December 21, 2007
                               No. 06-11185
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

AFFIONG EKONG

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Northern District of Texas


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:
      Affiong Ikpeme Ekong, federal prisoner # 31386-177, was convicted of
health care fraud and was ordered to pay restitution in the amount of $896,737.
The Government filed an application for writ of garnishment upon Ekong’s
interest in pension benefits held by the Dallas County Hospital District,
Supplemental Retirement Plan (the Plan). The district court ordered that the
writ of garnishment be issued. On August 29, 2005, the Plan answered,
admitting that it held, for the benefit of Ekong, employer matching funds in the
amount of $19,745.58, which were immediately distributable. Ekong timely filed
her opposition to the application for writ of garnishment. The district court
                                  No. 06-11185

denied Ekong’s objections and entered a final order of garnishment. Ekong gave
timely notice of her appeal.
      Ekong has moved for appointment of counsel. The motion is DENIED.
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      Ekong contends that there was no justification for requiring immediate
payment because the criminal judgment specified that restitution be paid in
installments.   This argument is without merit.        “The [Mandatory Victim
Restitution Act (MVRA)] provides the Government authority to enforce victim
restitution orders in the same manner that it recovers fines and by all other
available means” and, under 18 U.S.C. § 3613(a), it may collect “restitution ‘in
accordance with the practices and procedures for the enforcement of a civil
judgment under Federal law or State law,” including the Federal Debt Collection
Procedures Act of 1990. United States v. Phillips, 303 F.3d 548, 550–51 (5th Cir.
2002).   The attorney general is required by the MVRA to enforce victim
restitution orders “aggressively.” Id. at 551. There is nothing in the criminal
judgment to the contrary.
      Ekong contends that the Government failed to comply with 28 U.S.C.
§ 3205(b)(1)(B), by making demand for payment more than 30 days prior to
seeking the writ of garnishment. In its response to Ekong’s objections to the
application for writ of garnishment, the Government showed that demand for
payment was mailed to Ekong on November 16, 2004, which was more than 30
days prior to the filing of the application for writ of garnishment on April 25,
2005. Ekong filed an affidavit in response attesting that she never received the
Government’s letter. The district court determined that the Government had
presented sufficient proof that a demand letter was mailed to Ekong. The
district court held that Ekong had failed to rebut the presumption that the
demand letter was received.
      “Proof that a letter properly directed was placed in a U.S. post office mail
receptacle creates a presumption that it reached its destination in the usual time

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and was actually received by the person to whom it was addressed.” Beck v.
Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989). “A sworn
statement is credible evidence of mailing for the purposes of the mailbox rule.”
Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 420 (5th Cir. 2007) (brackets and
quotation marks omitted). The placement of a letter in the mail may be proved
by circumstantial evidence, including evidence of the sender’s customary mailing
practice. Id. The addressee’s “bare assertion of non-receipt” is insufficient to
rebut the assumption. Id. at 421.
      The Government submitted the affidavit of the legal assistant who
prepared the letter and caused it to be mailed to Ekong’s residence and postal
address through the United States mail. The legal assistant’s affidavit was
supported by business records. See Custer, 503 F.3d at 421. Ekong’s affidavit
of non-receipt was not supported by circumstantial evidence. See id. The
district court did not err in applying the mailbox rule. The district court’s order
overruling Ekong’s objections to the application for writ of garnishment is
AFFIRMED.




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