David Gilmartin v. United States

Whether an increase in a defendant’s monthly receipts and revenue from $0 (zero) at time of sentencing to $3000 after release from prison and award of retirement benefits under Social Security authorizes a later court under 18 USC 3664(k) to adjust the scheduled payment of restitution

Whether it is proper several years after the death of the trial judge for a later judge to change the order of restitution from 10% of earnings to 10% of all forms of revenue, so as to amend the trial judge’s decision not to take restitution out of my Social Security retirement benefit (b) The parties

See the caption of the case. (c) Tables of Contents and of Authorities

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The history of this case is reflected in three published opinions. After my conviction and sentencing in USDC New York Southern in Jul2013,1 appealed to the Second Circuit. Forty-two months later, my appeal was concluded two days before my release from prison by affirming the District Court in every detail. • US v David Gilmartin, 684 FAppx 8 (Second Circuit, 22Mar2017)

Soon after my release, I filed a motion in USDC New York Southern, and that motion was concluded in the District Court by this: • US v David Gilmartin, USDC New York Southern #12-cr-287, Memorandum Opinion and Order, filed lMay2018

Having lost the motion in the District Court I appealed to the Second Circuit. I lost there also, with the following Order • US v David Gilmartin, in USCA Second Circuit Summary Order filed 5May2020

Therefore I am now appealing to the Supreme Court. (e) Jurisdiction 9. (f) Statutes involved in the case, set out verbatim with appropriate citation.

18 USC 3664, entitled “Procedure for issuance and enforcement of order of restitution”, provides, • Subsection (k). A restitution order shall provide that the defendant shall notify the court and the Attorney General of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution. The court may also accept notification of a material change in the defendant’s economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require. (g) A concise statement of the case, including the basis for federal jurisdiction in the court of first instance

In April 2012,1 was indicted for willful failure to file and pay federal income taxes for every year 1989 to 2010 (under IRC 7203) and the associated tax evasion (IRC 7201), plus corrupt interference with the IRS (IRC 7212) and of course mail fraud (18 USC 1341). A jury found me guilty on 23Jan2013 after a 7- day trial and I was sentenced on 26Jul2013 to four years’ incarceration, three years of probation, the cost of prosecution and restitution of two victims. Restitution was specifically ordered as “monthly installments of 10% of the defendant’s earnings, after the defendant is earning money.” (emphasis in original) When I entered prison I had no assets and no income. When after 42 months I was released from prison 6 months early, I requested and received a Social Security benefit, which turned out to be $3000 monthly. My probation officer and her supervisor threatened me with punishment, up to reincarceration, if I did not pay 10% of my Social Security benefit for restitution. I explained that the benefit was not earnings, but Probation did not accept that. I filed a motion in US District Court for the Southern District of New York (docket l:12-cr-287-l), to get a ruling of the District Court that Social Security benefits were not earnings.

The prosecutor in his answer to my motion agreed that my retirement benefit from Social Security was not earnings. He conceded my point on page 1 of his answer, and devoted the rest of his answer to his countermotion, in which he asked the District Court to rewrite my order of restitution to take 10% of all my receipts of money. The District Court granted the countermotion, and I appealed to the Second Circuit Court of Appeals to overturn that decision. However, the ) Second Circuit did not overturn the decision. Instead the Second Circuit affirmed the District Court’s granting of the prosecutor’s countermotion.

Therefore, I am petitioning this Court.

This case challenges the ambiguity of 18 USC 3664(k) when restitution is expressed as a percentage. It also questions the authority of a judge appointed on the death of the trial judge to remove the mercy shown the defendant in the original order of restitution. (h) A direct and concise areument (see Rule 101

In the sentence I was given on 26Jul2013, at the end of trial, restitution was ordered as “monthly installments of 10% of the defendant’s earnings, after the defendant is earning money.” (emphasis in original). Within 18 USC 3664, concerning “Procedure for issuance and enforcement of order of restitution”, subsection (k) provides for notification to the court and then authorizes the court to adjust the schedule of my payments. For me, the change in my economic circumstances was that after my release from prison I applied for a retirement benefit, which I had never asked for or received before being put on trial. Social Security granted a benefit of $3000 a month. I was then age 73.

A note on terminology: At trial I argued that income in the constitutional sense does not include the wages I earn, nor does statutory gross income. We all agreed that my wages (to which I stipulated) were my compensation, that they were received by me and were revenue to me, to apply as I saw fit. But I argued that they were not income taxable under IRC sections 1, 63, and 61, despite the mention of compensation in IRC 61(a)(1). USDJ Cedarbaum told the jury I was wrong on that point and that I owed income tax on my wages,