                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAR 07 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-30141

              Plaintiff-Appellee,                D.C. No.
                                                 2:09-cr-00160-JLR-3
 v.

WILLIAM S. POFF,                                 MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                      Argued and Submitted February 9, 2018
                               Seattle, Washington

Before: GOULD, PAEZ, and CHRISTEN, Circuit Judges.

      William S. Poff (Poff) appeals from an order directing the Bureau of Prisons

to turn over funds in his inmate trust account to the Clerk of the United States

District Court for the Western District of Washington for payment of his court-

ordered restitution. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. The Mandatory Victims Restitution Act (MVRA) requires a prisoner who

“receives substantial resources from any source, including inheritance, settlement,

or other judgment, . . . to apply the value of such resources to any restitution or

fine still owed.” 18 U.S.C. § 3664(n) (emphasis added). Poff argues that the funds

in his inmate trust account do not qualify as “substantial resources from any

source, including inheritance, settlement or other judgement.” 18 U.S.C.

§ 3664(n). Instead, Poff urges that “substantial resources” refers only to windfalls;

or, what he characterizes as “economic gains that are unexpected and therefore

were not foreseen at the time of sentencing.” He invokes ejusdem generis in

support of this reading of the statute. But ejusdem generis is merely an “aid to the

ascertainment of the true meaning of the statute,” and is “neither final nor

exclusive.” Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89 (1934). “If,

upon a consideration of the context and the objects sought to be attained and of the

act as a whole, it adequately appears that the general words were not used in the

restricted sense suggested by the rule, we must give effect to the conclusion

afforded by the wider view in order that the will of the Legislature shall not fail.”

Id. Congress sought, through the MVRA, to restore to victims of crime “the

restitution that they are due.” S. Rep. No. 104-179, at 12 (1995); see In re Partida,

862 F.3d 909, 911 (9th Cir. 2017). Because “[t]he primary and overarching goal of


                                           2
the MVRA is to make victims of crime whole,” United States v. Gordon, 393 F.3d

1044, 1048 (9th Cir. 2004), the plain language of the MVRA does not support the

conclusion that the funds in Poff’s inmate trust account are beyond the reach of

§ 3664(n).

      Poff next suggests that the sums deposited into his inmate trust account were

not “substantial.” “[W]e follow the common practice of consulting dictionary

definitions to clarify the[] ordinary meaning [of statutory language] . . . .” United

States v. TRW Rifle 7.62X51mm Caliber, 447 F.3d 686, 689 (9th Cir. 2006)

(internal quotation marks omitted). To describe financial resources as

“substantial” is to suggest that they are “[c]onsiderable in amount or value.”

Substantial, Black’s Law Dictionary 1656 (10th ed. 2014).

       “But interpreting a statute is a holistic endeavor,” and we must “look not

only to the language itself, [but also to] the specific context in which that language

is used, and the broader context of the statute as a whole.” Johnson v. Aljian, 490

F.3d 778, 780 (9th Cir. 2007) (internal quotation marks omitted). The statutory

scheme reposes in sentencing judges the discretion to devise a payment schedule

that accounts for the defendant’s “financial resources and other assets,” “projected

earnings and other income,” and “financial obligations.” 18 U.S.C. § 3664(f)(2).

This suggests that “resources” are “[c]onsiderable in amount or value” if they


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positively exceed the sums needed by a criminal defendant to satisfy financial

obligations established at the time of sentencing. Because the sentencing court did

not find that Poff had competing obligations, the district court did not err in finding

the funds in Poff’s inmate trust account to be “substantial” and therefore subject to

seizure.

      2. Poff also asserts that his veteran disability benefits were exempt from levy

for taxes under the Internal Revenue Code and, hence, exempt from enforcement

under the MVRA. See 18 U.S.C. § 3613(a)(1); IRC § 6334(a)(10). As relevant

here, the tax code’s exemption applies to “[a]ny amount payable to an individual as

a service-connected . . . disability benefit . . . .” IRC § 6334(a)(10). Because the

tax code distinguishes between amounts that are “payable to,” amounts that are

“received by,” and amounts that are “payable to or received by” an individual, see

IRC § 6334, the expression of one of these alternatives necessarily excludes

another. See Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013). By

exempting from levy service-connected disability benefits “payable to” an

individual, Congress declined to extend the exemption to those same benefits once

they have been paid. As the district court correctly observed, the veteran disability

benefits in Poff’s inmate trust account were paid to him, not “payable to” him.




                                           4
Thus, the district court did not err in concluding that these funds were not exempt

from enforcement under the MVRA.

      3. Poff also contends that the government’s seizure of his veteran disability

benefits violated the Consumer Credit Protection Act (CCPA)’s prohibitions on

garnishment. See 18 U.S.C. § 3613, 15 U.S.C. § 1673. Poff concedes that “[t]he

CCPA was not expressly cited to the district court.” While “[a] document filed pro

se is to be liberally construed” and “must be held to less stringent standards than

formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(internal citations and quotation marks omitted), Poff’s oppositions to the

government’s turnover motion did not articulate a “general argument” about

statutory limits on garnishment and failed to place the government on notice of his

claim. See Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014). Poff has

therefore waived any rights he might have had under the CCPA. See Hillis v.

Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010).

      In any case, the strictures of the CCPA apply only to “earnings.” 15 U.S.C.

§ 1673. Under Usery v. First National Bank of Arizona, 586 F. 2d 107, 108 (9th

Cir. 1978), compensation paid by an employer does not retain its character as

“earnings” after it has been deposited into an employee’s bank account. Even

assuming that Poff’s veteran disability benefits were wages, the funds already


                                           5
deposited into in Poff’s inmate trust account were not “earnings” and were

therefore not shielded by the CCPA.

      4. Poff attacks the encumbrance of funds in his inmate trust account as

violative of due process because they were initially encumbered without prior

notice and an opportunity to be heard. It is undisputed that a prisoner has a

property interest in his inmate trust account. See Shinault v. Hawks, 782 F.3d

1053, 1057 (9th Cir. 2015). “[T]he question remains what process is due.”

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). “[U]nder federal law, what

process is due is determined by context, to be analyzed in accordance with the

three-part balancing test described in Mathews v. Eldridge, 424 U.S. 319 (1976).”

Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 933 (9th Cir. 2017).

      “First, courts must look at the nature of the interest that will be affected by

the official action, and in particular, to the degree of potential deprivation that may

be created.” Nozzi v. Hous. Auth. of L.A., 806 F.3d 1178, 1192–93 (9th Cir. 2015)

(internal quotation marks omitted). Because the funds in Poff’s inmate trust

account could not be accessed freely and were not relied on for subsistence, his

interest in them was diminished. See Mathews, 424 U.S. at 340–41. “Second,

courts must consider the fairness and reliability of the existing procedures and the

probable value, if any, of additional procedural safeguards.” Nozzi, 806 F.3d at


                                           6
1193 (internal quotation marks omitted). As the amount of restitution to be paid

had been determined through prior judicial proceedings, the value of additional

procedural safeguards was negligible. “Finally, courts must assess the public

interest, which includes the administrative burden and other societal costs that

would be associated with additional or substitute procedures.” Id. (internal

quotation marks omitted). Here, the government had a strong interest in preserving

funds available for restitution. Poff questions the necessity of the seizure, averring

that the funds in the inmate trust account were held by the Bureau of Prisons. But

the government could not legitimately block an otherwise proper use of funds in

the account, unless it had the authority to encumber them. Doing so prevented

depletion of the account.

      Balancing the three Mathews factors, we conclude that a pre-deprivation

hearing is not constitutionally mandated in a case like this, where the funds to be

encumbered were not needed for subsistence, where the entirety of those funds was

subject to a judgment lien pursuant to the MVRA, where the amount of the

judgment lien had been previously determined through judicial process, and where

the funds were only frozen—not distributed—pending resolution of a motion

before a district court. For all of these reasons, the district court did not err in




                                            7
holding the government’s encumbrance of Poff’s inmate trust account to be

constitutional.

      AFFIRMED.




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