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Govt Response to Terrell Motion to Quash

Govt Response to Terrell Motion to Quash

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Published by: The Dallas Morning News on Aug 24, 2010
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08/17/2011

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United States’ Response to Gail Terrell’s Motion to Quash Subpoena - Page 1
IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISION _____________________________________ UNITED STATES OF AMERICA, §§Plaintiff, §§v. §No. 3:07-CR-289-08§ALLEN J. MCGILL, §ECF§Defendant. §
UNITED STATES’ RESPONSETO GAIL TERRELL’S MOTION TO QUASH SUBPOENA
Plaintiff United States of America files this Response to Motion to QuashSubpoena and shows the Court the following:
BACKGROUND
Defendant Allen J. McGill (McGill) pled guilty and was sentenced in this Court onApril 2, 2010 to one count of Conspiracy to Commit Extortion, a violation of 18 U.S.C.§ 371 (18 U.S.C. § 1951) (doc. 1334). In connection with the Judgment, McGill wasordered to make restitution in the amount of $112,500 plus a $100 mandatory specialassessment. As of July 6, 2010, McGill paid his assessment, but has not made any payments toward his restitution debt.Because the restitution component of McGill’s sentence remains unsatisfied, theUnited States seeks to collect his debt through all procedures available under the FederalDebt Collection Procedures Act (FDCPA), 28 U.S.C. §§ 3001-3308. On June 9, 2010,
Case 3:07-cr-00289-M Document 1423 Filed 07/08/10 Page 1 of 10 PageID 10668
 
United States’ Response to Gail Terrell’s Motion to Quash Subpoena - Page 2
the United States mailed a Notice to McGill’s spouse Gail Terrell (Terrell) attaching a blank subpoena to ViewPoint Bank for the records of McGill and Terrell.
See
Pl.’s App.Tab A. The Notice stated Terrell could complete the accompanying blank Motion toQuash Subpoena if she believed the requested records were irrelevant to the investigationof her husband’s finances and the United States has no legal basis for the release of therecords. Terrell filed the Motion to Quash on June 23, 2010 (doc. 1402) stating she “isthe sole account holder and signatory of ViewPoint Bank accounts. All monies in saidaccounts were earned by Gail Terrell. No earnings of funds have been deposited into theViewPoint Bank accounts by Allen J. McGill.” The Motion was referred to MagistrateJudge Jeff Kaplan on June 28, 2010 (doc. 1405), who ordered the United States to file itsResponse to the Motion by July 20, 2010 and Terrell to file her reply to the United States’Response not later than fourteen days thereafter (doc. 1409).As part of its efforts to collect McGill’s restitution, the United States believesViewPoint Bank possesses documents and holds property in which McGill may have aninterest. The United States complied with the relevant provisions of the Right toFinancial Privacy Act, 12 U.S.C. §§ 3401-3422, to obtain the relevant documents by providing the Notice and attached blank subpoena to Terrell.The United States has a legal right to issue the subpoena and obtain the requestedinformation, therefore, United States requests that Terrell’s Motion be denied in itsentirety and the United States be allowed to subpoena documents held by ViewPointBank.
Case 3:07-cr-00289-M Document 1423 Filed 07/08/10 Page 2 of 10 PageID 10669
 
United States’ Response to Gail Terrell’s Motion to Quash Subpoena - Page 3
ARGUMENTSI.The United States’ Subpoena Is Authorized Under The MVRA And FDCPA.
The United States has the authority under federal law to issue a civil subpoena inMcGill’s criminal case to enforce the restitution order.
See United States v. Parlin
, No.3:03-CR-162-D, 2010 WL 1903991, at *1-2 (N.D. Tex. May 10, 2010) (unpublished) (
 see
Pl.’s App. Tab B) (Magistrate Judge Jeff Kaplan denied motion to quash United States’subpoena issued in criminal case to enforce order of restitution);
United States v. Miller 
, No. 4:03-CR-170-A, (N.D. Tex. Nov. 8, 2005) (unpublished) (
 see
Pl.’s App. Tab C)(motion to quash United States’ subpoena issued in criminal case to enforce order of restitution denied). The Mandatory Victim Restitution Act (MVRA), 18 U.S.C. §§3663A-3664, authorizes the United States to enforce victim restitution orders in the samemanner that it recovers fines and by all other available means.
See
18 U.S.C. §3664(m)(1)(A);
United States v. Phillips
, 303 F.3d 548, 551 (5th Cir. 2002). The UnitedStates is further authorized under 18 U.S.C. § 3613(a) to collect criminal fines, and thusrestitution, “in accordance with the practices and procedures for the enforcement of acivil judgment under Federal law or State law.” 18 U.S.C. § 3613(a);
 Phillips
, 303 F.3dat 551. The FDCPA provides the procedures for enforcement of a civil judgment under federal law.
See
28 U.S.C. §§ 3001-3308;
 Phillips
, 303 F.3d at 551. Sections 3004 and3015 of the FDCPA expressly permit the United States to take discovery of a debtor’sfinancial condition in the manner in which discovery is authorized by the Federal Rules of Civil Procedure, including the issuance of a Fed. R. Civ. P. 45 subpoena.
See
28 U.S.C.
Case 3:07-cr-00289-M Document 1423 Filed 07/08/10 Page 3 of 10 PageID 10670

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