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United States v. Bomhak

United States District Court, W.D. Oklahoma

September 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CODY BOMHAK, Defendant.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE.

         Chief United States District Judge Timothy D. DeGiusti referred Defendant's Claim of Exemption and Request for Hearing [Doc. No. 45] for appropriate action consistent with 28 U.S.C. § 636(b)(3). [Doc. No. 46]. The Government has responded [Doc. No. 47]. Defendant did not file a court-ordered reply. For the reasons set forth below, it is recommended that Defendant's Claim of Exemption and Request for Hearing be STRICKEN. In the alternative, it is recommended that Defendant's Claim of Exemption and Request for Hearing be DENIED. It is further recommended that the Garnishee, Rock Island Credit Union, be ordered to disburse all nonexempt monies and property of Defendant withheld since the date of service of the Writ, and make all future payments and monies withheld under the continuing writ payable to the Clerk of Court, United States District Court for the Western District of Oklahoma, 200 N.W. Fourth Street, Suite 1210, Oklahoma City, Oklahoma 73102.

         I. Procedural History

         On July 1, 2019, the Honorable Timothy D. DeGiusti issued a Post-Judgment Continuing Writ of Garnishment to Garnishee, Rock Island Credit Union, against the Defendant, Cody Bomhak. [Doc. No. 42]. Rock Island Credit Union responded on July 15, 2019, stating that it is in the possession, custody, or control of $165.31 in a savings and checking account, of which Defendant has an interest. [Doc. No. 44].

         A Claim of Exemption and Request for Hearing was filed on July 25, 2019. [Doc. No. 45]. This court filing was not signed by Defendant, instead it was signed by June Bomhak, who purports to have a power of attorney. Id. at 3. June Bomhak did not provide a return address on the filing.

         On July 31, 2019, the Government filed a Brief in Response to the Claim of Exemption and Request for Hearing [Doc. No. 47]. The Government argues that the exemptions relied on by Defendant are not applicable. Id. at 3-4. Specifically, the Government contends that the exclusions apply to personal property or payments which do not apply to the bank account at issue. Id.

         On August 13, 2019, the Court entered an order requiring Defendant file a reply in response to the Government's brief by September 3, 2019. [Doc. No. 48]. Defendant did not comply with the Court's order.

         II. Analysis

         A. June Bomhak Does Not Have Standing to Object on Defendant's Behalf

         The Claim of Exemption and Request for Hearing was signed by June Bomhak as “POA.” Claim of Exemption 3. It appears the document was completed by Ms. Bomhak as well, as she writes that “Defendant is currently incarcerated at above address, and would recommend any hearing be pre arranged with his counsel or via phone.” Id. Ms. Bomhak has not entered an appearance as an attorney in this matter and she does not purport to be a licensed attorney in the court filing.

         Ms. Bomhak's attempt to assert an exemption on behalf of Defendant should be stricken because she has “has no standing to represent the defendant in this court proceeding.” United States v. Renneisen, No. 07-10180-02-WEB, 2010 WL 1758246, at *2 (D. Kan. Apr. 30, 2010) (where an individual had a power of attorney objected to a garnishment on behalf of the defendant); see also 29 U.S.C. § 1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel . . . .”). Although Ms. Bomhak appears to assert she has a power of attorney, [1] “such a power may only be exercised in a court proceeding through representation by a licensed attorney.” Id.; see also Dorsey v. McKune, No. 07-3204-SAC, 2007 WL 4557677, at *1 (D. Kan. Dec. 20, 2007) (“A power of attorney may not be used to circumvent prohibitions on the unauthorized practice of law.”); Kapp v. Booker, No. CIV.A. 05-402-JMH, 2006 WL 385306, at *3 (E.D. Ky. Feb. 16, 2006) (“While the power of attorney gives Ms. Kapp legal standing to assert claims owned by her husband on his behalf, it does not authorize her to practice law by representing another person, her husband, in a lawsuit: that must still be done by a licensed attorney.”).

         Because Ms. Bomhak does not have standing to represent Defendant, the Claim of Exemption and Request for Hearing should be stricken.

         B. Alternatively, the Claim of Exemption and Request for Hearing Should Be Denied

         Even if the Claim of Exemption and Request for Hearing is not stricken, the Court should, in the alternative, deny the request. The Mandatory Victims Restitution Act permits the United States to enforce a judgment imposing a fine against all property or rights to property of the person fined, with certain exceptions. 18 U.S.C. § 3613(a). The ...


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