Petition for Writ of Certiorari — Shilo Abell, Petitioner v. United States

Supreme Court briefJun 9, 2021

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No. 21-_________

___________________________________________________

SUPREME COURT OF THE UNITED STATES

___________________________________________________

Shilo Abell,

Petitioner,

vs.

United States,

Respondent.

___________________________________________________

On Petition for a Writ of Certiorari to

The United States Court of Appeals

for the First Circuit

____________________________________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________________________________

Peter Charles Horstmann, Esquire

450 Lexington Street, Suite 101

Newton, MA 02466

Tel.: (617) 519-9011

Fax.: (617) 663-6339

E-Mail: pete@horstmannlaw.com

Attorney for Shilo Abell

QUESTIONS PRESENTED

Whether Congress intended to deprive married spouses of rights to their

husband’s pensions which are afforded to divorced spouses under Massachusetts

law in violation of the Fourth Amendment and/or whether the Mandatory Victim

Restitution Act violated Shilo Abell’s Fourth Amendment rights?

II.

TABLE OF CONTENTS

Page

iii

A. SHILO ABELL HAD A VESTED LEGAL INTEREST IN

THE 401K PLAN ON THE DATE OF EDWARD’S

CONVICTION .

B. THE LOWER COURT ERRONEOUSLY HELD THAT

401K ERISA PLANS ARE “EXCLUSIVELY” GOVERNED

BY FEDERAL LAW. .

C. THE LOWER COURT’S DECISION IGNORES STATE

STATUTES AND DECADES OF JURISPRUDNENCE

PERMITTING STATE COURT’S TO APPORTION ERISA

QUALIFIED PLANS AS PART OF A DIVORCE.. .

D. THE LOWER COURT ERRED IN FAILING TO MAKE ANY

FINDINGS UNDER M.G.L. c. 208 § 34. .

E. THE MVRA AS INTERPRETTED BY THE LOWER COURT

IN THIS CASE VIOLATED SHILO ABELL’S FOURTH

AMENDMENT RIGHTS TO BE FREE FROM AN

UNLAWFUL SEIZURE OF PROPERTY IN WHICH SHE

HAD A LAWFUL INTEREST.

XI.

QUESTION PRESENTED .

II.

TABLE OF CONTENTS. .

III. TABLE OF AUTHORITIES.

IV. PETITION FOR WRIT OF CERITORARI .

OPINIONS BELOW.

VI. JURISDICTION

VII. CONSTITUTIONAL PROVISIONS INVOLVED .

VIII. STATEMENT OF THE CASE

IX. REASONS FOR GRANTING THE WRIT .

CONCLUSION

APPENDIX .

III.

TABLE OF AUTHORITIES

Page(s)

CASES

Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 511 (1981) ...............................5

Bakwin v. Mardirosian, 467 Mass. 631, 6 N.E.3d 1078, 1085 (2014) .....................6

Bianco v. Bianco, 371 Mass. 420 (1976) ..............................................................10

Bowring v. Reid, 399 Mass. 265, 267 (1987) .........................................................11

Casey v. Casey, 79 Mass.App.Ct. 623, 634-35 (2011) .............................................7

Drapek v. Drapek, 399 Mass. 240, 243 (1987) ................................................. 10,11

Guidry v. Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 376 (1990) ......5

Krapf v. Krapf, 439 Mass. 97, 108 n.11 (2003) ........................................................7

Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825 (1988) ............8

Pare v. Pare, 409 Mass. 292, 296 (1991) ...............................................................11

Redding v. Redding, 398 Mass. 102, 107 (1986) ....................................................11

Rice v. Rice, 372 Mass. 398, 400 (1977) ................................................................10

Rose v. Rose, 481 U.S. 619, 634 (1987) ...................................................................7

Savides v. Savides, 400 Mass. 250, 252 (1987) ......................................................11

Soldal v. Cook County, Illinois, 506 U.S. 56 (1992) ..............................................12

United States v. Abell, 985 F.3d 111 (1st Cir. 2021) ....................................... passim

United States v. Abell, 435 F.Supp.3d 299 (D.Mass. 2020) ..................................1,3

United States v. Baker, 852 F.3d 97, 104 (1st Cir. 2017) ..........................................6

United States v. Beulke, 892 F.Supp.2d 1176, 1180 (D.S.D. 2012) .......................4,5

iii

United States v. Lester, 85 F.3d 1409, 1411 n.3 (9th Cir. 1996) ................................8

United States v. Mendoza, 2008 U.S. Dist. LEXIS 102846, 2008 WL 5114272 ......8

United States v. Novak, 476 F.3d 1041 (9th Cir. 2007) .................................... 4,5,6,9

United States v. Monsanto, 491 U.S. 600, 607 (1989) ..............................................9

United States v. Pena-Fernandez, 401 F.Supp. 3d 223 (D.PR 2019) .......................9

STATUTES & LAWS

Fourth Amendment to the U.S. Constitution .................................................. passim

18 U.S.C. § 3664(f)(2)(C) ............................................................................... passim

28 U.S.C. § 1254 ........................................................................................................2

29 U.S.C. Section 1002(19) ......................................................................................6

M.G.L. c. 208 § 34 .......................................................................................... 7,10,11

IV.

PETITION FOR WRIT OF CERTIORARI

Shilo Abell, lawful spouse of Edward Abell, an inmate currently

incarcerated in the Bureau of Prisons, by and through Attorney Peter Charles

Horstmann, respectfully petitions this court for a writ of certiorari to review the

judgment of the United States Court of Appeals for the First Circuit.

OPINIONS BELOW

The decision by the United States Court of Appeals for the First Circuit is

reported as United States v. Abell, 985 F.3d 111 (1st Cir. 2021). The decision of

the United States District Court for the District of Massachusetts is reported as

United States v. Abell, 435 F.Supp.3d 299 (D.Mass. 2020).

VI.

JURISDICTION

On January 15, 2021, the United States Court of Appeals for the First Circuit

affirmed the judgment of the District of Massachusetts, (Gorton, J.), which allowed

for an order authorizing the garnishment of Edward Abell’s entire 401K Plan

account in partial satisfaction of an outstanding restitution order in Edward’s case.

United States v. Abell, 985 F.3d 111 (1st Cir. 2021). Shilo Abell invokes this

Court’s jurisdiction under 28 U.S.C. Section 1254 having timely filed this petition

for a writ of certiorari within 150 days.1

VII. CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be

seized.

VIII. STATEMENT OF THE CASE

The Appellant, Shilo Abell, appealed to the First Circuit from Judge

Gorton's Order dated January 17, 2020, ordering the garnishment of Edward’s

401k over her objection and without any distribution or apportionment of proceeds

to her. Id.; (App. 2).2

On September 24, 2018, Abell pleaded guilty to all counts of the Indictment

and was sentenced on January 15, 2019. (App. 3). At sentencing, the Judge found

that the total loss was $3,879,750 and ordered restitution in a similar amount.

(App. 3). Thereafter, the government sought to garnish his 401K Plan under the

On March 19, 2020, as a result of the COVID pandemic, this Court issued an order extending the deadline for

filing petitions for certiorari from 90 to 150 days.

All references to the Appendix attached hereto will appear herein as “(App. P#)”.

Mandatory Victims Restitution Act, (“MVRA”). 18 U.S.C. Section 3664(f)(2)(C);

(App. 4). The garnishee’s answer indicated that the 401K Plan had an account

balance of $393,500. (App. 4). Shilo opposed the garnishment and the District

Court issued a Memorandum & Order dated January 17, 2020, finding that Shilo

has no legal interest in the Plan. United States v. Abell, 435 F.Supp.3d 299

(D.Mass. 2020); (App. 4-5).

IX.

REASONS FOR GRANTING THE WRIT

It is respectfully submitted that the lower courts erroneously applied federal

pre-emption law to deny a spouse’s claim to 401K Plan proceeds and failed to

consider and properly apply Massachusetts domestic relations law under M.G.L. c.

208 § 34. In so doing, the court erroneous found that ERISA laws precluded its

application of Massachusetts law resulting in the unconstitutional seizure of Shilo

Abell’s property in violation of the Fourth Amendment. (Add. 1)

A proper evaluation of Shilo’s interest under M.G.L. c. 208 § 34 would have

resulted in her receiving a substantial percentage of the 401K Plan proceeds.3

It is important to note at the outset of this argument that the disputed 401K proceeds do not represent the proceeds

of any unlawful activity. The proceeds were lawfully earned by Edward Abell during his years employment and

during his marriage to Shilo Abell and were not in any way tied to the crimes for which he was convicted. Equally

important is the fact that Shilo was never accused by the government of any wrongdoing.

The lower court’s cursory ruling essential adopted the government’s

argument that federal law (ERISA) pre-empted a wife’s state law equitable interest

in the 401K Plan proceeds. (Add. 1). This analysis barely scratches the surface of

the in depth analysis warranted by Shilo’s claim. The lower court’s reliance on

United States v. Novak, 476 F.3d 1041 (9th Cir. 2007) and United States v. Beulke,

892 F.Supp.2d 1176, 1180 (D.S.D. 2012), was erroneous. Both the lower court

and the government missed the language of the 401K Plan and the greater volume

of statutes and caselaw, including Novak, recognizing the primacy of an innocent

spouse’s right to 401K Plan proceeds notwithstanding the MVRA.

A. SHILO ABELL HAD A VESTED LEGAL INTEREST IN THE 401K

PLAN ON THE DATE OF EDWARD’S CONVICTION

The evidence submitted to the court below established that the funds were

governed by the “W2 Group, Inc. 401(K) Plan”, (“the 401K Plan). (JA 66-91).

The “Summary Plan Description” was submitted to the lower court by the

government on January 14, 2020 along with Shilo’s Notice of Claim. (JA 64, 66).

Article VIII of the plan automatically created a “RIGHT” to a death benefit for a

plan participant’s spouse. (JA 76-77). Unless a spouse irrevocably consents in a

notarized writing to waive the death benefit, they are entitled to the participant’s

full vested interest in the 401K Plan. (JA 91). It is undisputed that Edward Abell

was 100% vested in the plan because he was employed for more than 6 years. (JA

31). It is also important to note that under the plan a spouse’s right to receive a

death benefit also is terminated upon divorce. (JA 77). This confounds the

government’s secondary argument that ERISA required Shilo to get a divorce

before she could assert any rights under the 401K Plan.

The government never submitted any evidence that Shilo had consented to

the waiver of her rights under the plan or that Edward and Shilo were divorced.

Therefore, the unequivocal evidence before the lower court was that Shilo had a

legal interest in the 401K that had not been waived or terminated. As a result, she

asserted a valid enforceable claim to the proceeds of the 401K Plan.

B. THE LOWER COURT ERRONEOUSLY HELD THAT 401K ERISA

PLANS ARE “EXCLUSIVELY” GOVERNED BY FEDERAL LAW.

The lower court’s cursory ruling ignored the clear language of ERISA, the

401K Plan, Novak and existing case law. In so doing the lower court essentially

adopted the government’s argument that federal law (ERISA) pre-empted a

spouse’s interest in the 401K Plan. (Add. 1). In relying on Novak and Beulke,

both the lower court and the government missed the greater import of Novak and

volume of statutes and caselaw permitting state and federal courts to apportion the

proceeds of ERISA approved 401K plans for a multitude of reasons.

However, contrary to the lower court’s findings, Novak specifically

recognized that ERISA required the consent of a spouse to lump sum payments

under the Plan. Novak at 1062 and 67 citing 29 U.S.C. § 1055(g); Alessi v.

Raybestos-Manhattan, Inc., 451 U.S. 504, 511 (1981). This, Novak recognized,

reflected congressional intent to protect blameless spouses. Id. at 1063; Guidry v.

Sheet Metal Workers Nat’l Pension Fund, 493 U.S. 365, 376 (1990). Novak even

concluded that a section of the MVRA, (18 U.S.C., Section 3664(f)(2)(C)),

required restitution orders to account for financial obligations to spouses. Id.

Moreover, because Edward’s benefit was fully vested and unconditional,

both his interest and his spouse’s interest are deemed “nonforfeitable”. Title 29

U.S.C. Section 1002(19) renders Shilo’s interest in the 401K Plan

“nonforfeitable”:

The term “nonforfeitable” when used with respect to a pension benefit

or right means a claim obtained by a participant or his beneficiary to

that part of an immediate or deferred benefit under a pension plan

which arises from the participant’s service, which is unconditional,

and which is legally enforceable against the plan. For purposes of this

paragraph, a right to an accrued benefit derived from employer

contributions shall not be treated as forfeitable merely because the

plan contains a provision described in section 1053(a)(3) of this title.

Under the 401K Plan, Shilo had the best possible spousal interest in the plan.

Upon Edward’s death, she was entitled to receive 100% of the remaining benefits.

In United States v. Baker, 852 F.3d 97, 104 (1st Cir. 2017), the First Circuit

recognized that Massachusetts has a “strong public policy of protecting nondebtor

spouses.” Bakwin v. Mardirosian, 467 Mass. 631, 6 N.E.3d 1078, 1085 (2014).

While Baker was not an MVRA or ERISA case it further demonstrates both

federal and state court concerns, separate and apart from the congressional

concerns recognized by Novak.

C. THE LOWER COURT’S DECISION IGNORES STATE STATUTES

AND DECADES OF JURISPRUDNENCE PERMITTING STATE

COURT’S TO APPORTION ERISA QUALIFIED PLANS AS PART

OF A DIVORCE.

At no time did the lower court consider the existing state of affairs whereby

state courts are permitted to regularly and routinely apportion a spouse’s federal

benefits as part of a spouse’s assets in a divorce proceeding. Indeed, the Supreme

Court has long since held that state courts are not precluded from considering

federal pensions for purposes of child support and alimony. Rose v. Rose, 481 U.S.

619, 634 (1987)(veteran’s disability benefits intended to support the veteran’s

family as well). In so doing, the court concluded that the statute’s anti-attachment

provisions did not conflict with state court support awards even where the benefit

represented the veteran’s sole source of income.

Id.; Casey v. Casey, 79

Mass.App.Ct. 623, 634-35 (2011); Krapf v. Krapf, 439 Mass. 97, 108 n.11 (2003).

In Massachusetts, M.G.L. c. 208 § 34 mandates that:

Upon divorce or upon a complaint in an action brought at any time

after a divorce, whether such a divorce has been adjudged in this

commonwealth or another jurisdiction, the court of the

commonwealth, provided there is personal jurisdiction over both

parties, may make a judgment for either of the parties to pay alimony

to the other under sections 48 to 55, inclusive. In addition to or in

lieu of a judgment to pay alimony, the court may assign to either

husband or wife all or any part of the estate of the other,

including but not limited to, all vested and nonvested benefits,

rights and funds accrued during the marriage and which shall

include, but not be limited to, retirement benefits, military

retirement benefits if qualified under and to the extent provided

by federal law, pension, profit-sharing, annuity, deferred

compensation and insurance.

(Emphasis added).

Moreover, it is settled that ERISA's any anti-garnishment protection ends

when the benefits are actually paid. Mackey v. Lanier Collection Agency &

Service, Inc., 486 U.S. 825 (1988). The question in Mackey was whether Georgia

statutes allowing garnishment of funds from ERISA employee welfare benefit

plans were preempted by the federal statute governing the plans. In its decision,

the Court said the following about ERISA-qualified employee pension benefit

plans:

Where Congress intended in ERISA to preclude a particular method

of state-law enforcement of judgments, or extend anti-alienation

protection to a particular type of ERISA plan, it did so expressly in the

statute. Specifically, ERISA § 206(d)(1) [29 U.S.C. § 1056(d)(1)] bars

(with certain enumerated exceptions) the alienation or assignment of

benefits provided for by ERISA pension benefit plans . . . Section

206(d)(1) bars the assignment or alienation of pension plan benefits,

and thus prohibits the use of state enforcement mechanisms only

insofar as they prevent those benefits from being paid to plan

participants.

Id. (emphasis added).

Massachusetts is not a community property jurisdiction in which case like

California where Shilo would be automatically entitled to one half of the value of

the 401K. United States v. Lester, 85 F.3d 1409, 1411 n.3 (9th Cir. 1996); United

States v. Mendoza, 2008 U.S. Dist. LEXIS 102846, 2008 WL 5114272.(Court

deciding forfeiture claim determines property interests under state law before

applying federal forfeiture statute). Here, Shilo has an equitable legal interest in

the property under both federal law and Massachusetts law. United States v.

Monsanto, 491 U.S. 600, 607 (1989)(legal interest in property subject to forfeiture

includes rights, privileges, interests, claims and securities.). However, whether a

state enforces a community property or equitable division does not effect the

strength of a spouse’s ownership interest in the property. The mere percentage of

ownership whether set by a judge or legislature does not equate in any way to a

termination of rights if a percentage is not dictated by statute.

In United States v. Pena-Fernandez, 401 F.Supp. 3d 223 (D.PR 2019), the

court outlined the current state of the law in rejecting a former spouse’s claim to

community property under Puerto Rico law. However, the court concluded that

where the property constituted proceeds of the on-going crime the United States

will always have a superior interest to community property. That is not the case

here where the 401K was not tainted by any criminal proceeds.

The ERISA caselaw relied on by the lower court is inapposite because

ERISA does not take precedence over state domestic relations law. In particular,

Novak, which is relied on by the lower court, specifically acknowledges that

“domestic relation orders” are excluded from ERISA. Novak, 476 F.3d at 1061.

Moreover, there would be no need for courts like Lester above to engage in any

analysis of state law under the lower court’s theory.

Any cursory or technical reading of ERISA and MVRA mandate the

conclusion that these statutes were intended to be interwoven with state laws both

in terms of deference and pre-emption. There is no universal maxim as the lower

court suggests that ERISA in governed exclusively by federal law. In fact, the

contrary reality plays out every day in state court divorce proceedings in all 50

states.

D. THE LOWER COURT ERRED IN FAILING TO MAKE ANY

FINDINGS UNDER M.G.L. c. 208 § 34.

Although a judge in Massachusetts has broad discretion when awarding

alimony and dividing marital assets pursuant to M.G. L. c. 208, § 34, Drapek v.

Drapek, 399 Mass. 240, 243 (1987); Rice v. Rice, 372 Mass. 398, 400 (1977);

Bianco v. Bianco, 371 Mass. 420 (1976), the judge must consider fourteen

mandatory factors set out in the third sentence of § 34, namely "the length of the

marriage, the conduct of the parties during the marriage, the age, health, station,

occupation, amount and sources of income, vocational skills, employability, estate,

liabilities and needs of each of the parties, and the opportunity of each for future

acquisition of capital assets and income." In addition, the judge may, in his or her

discretion, consider "the contribution of each of the parties in the acquisition,

preservation or appreciation in value of their respective estates and the contribution

of each of the parties as a homemaker to the family unit." M.G.L. c. 208, § 34.

Bowring v. Reid, 399 Mass. 265, 267 (1987); Drapek v. Drapek, supra. The judge

must make express findings indicating that he or she weighed each of the required

factors and did not consider any irrelevant factors. Pare v. Pare, 409 Mass. 292,

296 (1991); Bowring v. Reid, supra.; Rice v. Rice, supra at 402-403. Additionally,

the reasoning for the judge's conclusions must be apparent in his or her findings

and rulings. Pare v. Pare, supra. Savides v. Savides, 400 Mass. 250, 252 (1987).

A judgment will not be disturbed on appeal unless "plainly wrong and excessive."

Pare v. Pare, supra at 296, citing Redding v. Redding, 398 Mass. 102, 107 (1986).

In United States v. Baker, the court remanded a case regarding the division

of marital assets subject to federal tax enforcement action for the district court to

properly make findings under § 34. 852 F.3d at 103-104. The Court found that it

was not clear that the lower court had considered all 14 of the statutorily

enumerated factors under § 34. Id. at 104. At a minimum, the lower court in this

case should have made findings under § 34 and its failure to do so constituted

reversible error.

Accordingly, it is respectfully submitted that the lower court’s failure to

render specific findings under § 34 was erroneous.

THE MVRA AS INTERPRETTED BY THE LOWER COURT

IN THIS CASE VIOLATES SHILO ABELL’S FOURTH

AMENDMENT RIGHTS TO BE FREE FROM AN UNLAWFUL

SEIZURE OF PROPERTY IN WHICH SHE HAD A LAWFUL

INTEREST.

It is respectfully submitted that the MVRA as applied in this case to a 401K

Plan in which an innocent spouse has a vested nonforfeitable interest constitutes a

violation of the Fourth Amendment. The Fourth Amendment protects against

unlawful seizures insofar as the unlawful retention of the property. While the

Fourth Amendment protects property rights outside the criminal search and seizure

context, a seizure of property only violates the Fourth Amendment if it is

unreasonable. Soldal v. Cook County, Illinois, 506 U.S. 56, 113 S. Ct. 538, 543,

121 L. Ed. 2d 450, 113 S. Ct. at 549 (1992)("'reasonableness is still the ultimate

standard' under the Fourth Amendment").

Here, it is an unreasonable interpretation of both the MVRA and ERISA to

permit the termination of a spouse’s interest in her husband’s 401K Plan.

CONCLUSION

Based on the foregoing arguments and authorities this Honorable Court is

respectfully urged to reverse the courts below.

SHILO ABELL,

By and through her Attorney,

/s/ Peter Charles Horstmann

____________________________

Peter Charles Horstmann, Esquire

450 Lexington Street, Suite 101

Newton, MA 02466

(617) 519-9011

pete@horstmannlaw.com

CERTIFICATE OF SERVICE

I, Peter Charles Horstmann, Esquire, hereby certify that on this 9th day of June,

2021, a copy of the foregoing Petition for a Writ of Certiorari was served

electronically upon Jordi De Llano, AUSA and Carol Head, AUSA, U.S.

Attorney's Office, 1 Courthouse Way, Boston, MA 02110.

/s/ Peter Charles Horstmann

Peter Charles Horstmann

CERTIFICATE OF COMPLIANCE WITH RULE 31.1(g)

I, Peter Charles Horstmann, attorney for Shilo Abell, hereby certify that,

according to the word-count tool in Microsoft Word, the Petition for

Certiorari consists of 2,878 words, including footnotes and excluding

the sections enumerated by Rule 33. l(d). The Petition therefore

complies with Rule 33. l(g).

/s/ Peter Charles Horstmann

Peter Charles Horstmann

June 9, 2021

XI.APPENDIX

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United States Court of Appeals

For the First Circuit

No. 20-1120

UNITED STATES OF AMERICA,

Appellee,

EDWARD J. ABELL, III,

Defendant,

SHILO M. ABELL,

Claimant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Lynch, Lipez, and Barron,

Circuit Judges.

Peter C. Horstmann for appellant.

Carol E. Head, Assistant United States Attorney, with whom

Andrew E. Lelling, United States Attorney, was on brief, for

appellee.

January 15, 2021

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LYNCH, Circuit Judge.

district

court's

January

17,

Shilo Abell appeals from the

2020

order,

which

granted

the

government's request to garnish her husband's 401(k) account, 26

U.S.C. § 401(k), and apply the proceeds to his nearly four-milliondollar criminal restitution obligations.

Shilo Abell argues on

appeal that the district court erred in garnishing her husband's

account without allocating to her some portion of the funds.

Because we find that Shilo Abell has no vested legal interest in

her husband's account, we affirm.

I. Background

Edward J. Abell, III and Shilo Abell are married and

residents of Massachusetts.

Between 2006 and 2017 Edward Abell

served in "finance-related positions," including Chief Financial

Officer and Vice President of Finance, at four companies in the

Boston area.1

Edward Abell used these roles to embezzle millions

of dollars. At each of the victim companies he created fake vendor

profiles for a company called Pinehurst, which he controlled.

then created fake invoices for work Pinehurst never performed, and

issued checks to Pinehurst on behalf of his employers.

Once the

money was deposited in the Pinehurst accounts, Edward Abell either

spent it directly, or transferred it to his own personal and

Three of these companies were related entities. After

taking time off for poor health, Edward Abell began working at an

unrelated firm and resumed the same scheme.

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investment

accounts.

total,

Edward

Abell

approximately $3,879,750 between 2006 and 2017.

embezzled

On September 24,

2018 he pleaded guilty to eight counts of wire fraud, money

laundering, and unlawful monetary transactions relating to this

scheme.

At his sentencing hearing, Edward Abell represented to

the

court

that

was

able

restitution to his victims.

and

willing

pay

substantial

The district court sentenced him to

ninety-seven months' incarceration and three years of supervised

release and ordered him to pay $3,879,750 in restitution.

Edward

Abell also forfeited an E*Trade account and other assets, including

two cars and a property in Maine.

Edward Abell did not challenge

the restitution order in any direct appeal.

In his appeal from

his sentence, he again made the representation that he could make

significant restitution, including from his 401(k) account.

court upheld his sentence in an unpublished judgment.

This

United

States v. Abell, No. 19-1125 (1st Cir. Sept. 16, 2019) (judgment

affirming sentence).

Despite his promise to make substantial restitution,

Edward Abell paid only $7,875 towards his restitution obligations

-- most of which came from the sale of one of his forfeited

vehicles.

He took no money from his 401(k) account to meet his

restitution obligations.

With accrued interest his outstanding

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balance grew to $3,922,484.02.2

On July 29, 2019, the government

asked the district court for a writ of garnishment directed at

Edward Abell's 401(k) plan, which Edward Abell held individually

in his own name.3

The account had a value of roughly $393,500.

After deducting taxes and early withdrawal fees, the government

asked that the full balance of the account be paid towards Edward

Abell's restitution balance.

Both Edward and Shilo Abell opposed the government's

motion for a writ of garnishment.

Edward Abell argued that his

401(k) plan was exempt from forfeiture pursuant to 18 U.S.C.

§ 3613(a)(1) and 26 U.S.C. § 6334.

objections.

He also joined in his wife's

Even though she has not divorced her husband, Shilo

Abell argued that the district court should find that Massachusetts

divorce law implicitly recognizes a vested legal interest by

spouses in their husband's or wife's property, entitling her to a

portion of the account payout.

The district court rejected these

objections and issued a garnishment order.

It observed, "[i]t is

undisputed that the Abells are still married.

In the absence of

a divorce decree or other qualifying domestic relations order,

state property law will not displace federal law."

The district

At the time of the district court's order his restitution

amount had further increased to $3,968,490.35.

The writ of garnishment was directed at both the plan

and the plan administrator.

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court found Shilo Abell's remaining arguments that she held a

vested legal interest in the 401(k) account unpersuasive because

"[Edward Abell] was entitled to receive, without spousal consent,

$393,500, the approximate total value of the vested funds in his

401(k) Account."

Shilo Abell brought this timely appeal.

II. Discussion

The Federal Debt Collection Procedures Act authorizes

the

government

restitution orders.

use

writs

garnishment

collect

United States v. Witham, 648 F.3d 40, 49 (1st

Cir. 2011); 28 U.S.C. § 3001 et seq. Shilo Abell does not challenge

the government's authority to garnish her husband's account in

this appeal.

Rather, she renews her claim that Massachusetts law

gives her a vested legal interest in Edward Abell's 401(k) account.

She also argues for the first time on appeal that the contingent

death benefit in the plan gives her some current interest in the

account.

Her remaining arguments rely on this initial premise

that she has a current vested legal interest in the 401(k) account

under Massachusetts divorce law and/or under the terms of the

401(k) plan itself.

Because we reject both of these arguments we

do not reach her other claims. Nor do we reach any broader argument

as to the Employee Retirement Income Security Act of 1974 (ERISA),

the Mandatory Victim Restitution Act (MVRA), or preemption.

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review

the

Massachusetts law de novo.4

U.S. 225, 231 (1991).

district

court's

interpretation

Salve Regina Coll. v. Russell, 499

We review the argument about the contingent

death benefit in the policy for plain error because Shilo Abell

failed to raise it before the district court.

Rodriguez-Torres v.

Caribbean Forms Mfr., Inc., 399 F.3d 52, 65 n.11 (1st Cir. 2005).

As to the Massachusetts law argument, under any standard

of review, there was no error in the district court's decision.

Shilo Abell does not dispute that Edward Abell held the 401(k)

account individually, in his own name only.

She argues instead

that Massachusetts divorce law recognizes that both spouses have

a vested property interest in a retirement account that one spouse

holds individually.

She points to Mass. Gen. Laws ch. 208, § 34,

which states in relevant part,

Upon divorce or upon a complaint in an action

brought at any time after a divorce . . . the

court of the commonwealth . . . may make a

judgment for either of the parties to pay

alimony to the other . . . . In addition to or

in lieu of a judgment to pay alimony, the court

may assign to either husband or wife all or

any part of the estate of the other, including

but not limited to, . . . retirement benefits

. . . .

As the government notes, this court has not yet announced

the standard of review for an appeal from a writ of garnishment,

but other circuits review for abuse of discretion.

See, e.g.,

United States v. Smith, 768 F. App'x 926, 931 n.3 (11th Cir. 2019);

United States v. Clayton, 613 F.3d 592, 595 (5th Cir. 2010).

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Nothing in that statute indicates that both spouses have a vested

property right in any retirement account that one spouse holds

individually before divorce.

To the contrary, Massachusetts case law makes clear that

§ 34 only governs the division of property as it exists at the

time of divorce.

"[I]n making a division of assets the judge [is]

limited, for better or worse, to the property owned by the parties

at the time of the divorce."

Heins v. Ledis, 664 N.E.2d 10, 16

(Mass. 1996).

Further, the terms of § 34 require rejection of her

argument for another reason.

The statute authorizes the court to

"assign" "all or any part of the estate of the other" to one

spouse.

The court could not "assign" a portion of one spouse's

estate to the other if both spouses had a pre-existing vested

interest in the property, as Shilo Abell claims.

case law confirms this view.

Massachusetts

The Massachusetts Supreme Judicial

Court defines "estate" as used in § 34 to mean all property held

by "a spouse."

Dalessio v. Dalessio, 570 N.E.2d 139, 142 (Mass.

1991) (citing Lauricella v. Lauricella, 565 N.E.2d 436, 438 (Mass.

1991)).

The fact that Massachusetts recognizes that each spouse

individually holds an estate composed of their own property refutes

Shilo Abell's claim that Massachusetts law creates some vested

interest for one spouse in property held individually in his or

her spouse's name.

Shilo Abell has not pointed to a single case

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from Massachusetts that states § 34 creates or recognizes some

pre-divorce property interest.

Indeed, the case law she cites

largely discusses California's community property rules and other

issues not relevant here.

Shilo Abell next argues that Edward Abell's 401(k) plan

itself gives her a vested interest in the account because she would

be entitled to a death benefit if Edward Abell were to pass away.

Under the terms of the plan, "[i]f you are married at the time of

your death, your spouse will be the beneficiary of the entire death

benefit unless an election is made to change the beneficiary."

That the plan required consent in writing from both spouses to

change the beneficiary during marriage does not give Shilo Abell

a vested interest in the death benefit.

the

plan

would

circumstances.

explicitly

Indeed, the death benefit

contingent

number

It states, "[i]f you have designated your spouse

as your beneficiary for all or part of your death benefit, then

upon your divorce[] the designation is no longer valid."

Edward

Abell could also choose to "have [his] vested account balance

distributed

[him]

soon

administratively

feasible

following [his] termination of employment."

Receiving this lump

sum payout would not require spousal consent.

And, of course, any

death benefit was contingent on the balance that remained in the

account and the beneficiary surviving the plan-holder.

In these

circumstances Shilo Abell fails to show how this creates a current

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vested legal interest in the account.

She is entitled to payment

only if (1) Edward Abell does not unilaterally choose to receive

his full 401(k) balance in a single lump-sum payment before his

death, (2) there are still assets in the account at the time of

Edward Abell's death, (3) Shilo and Edward Abell remain married

until Edward Abell's death, and (4) Edward Abell predeceases Shilo

Abell.

There is no requirement in the plan that some portion of

the plan funds be administered for the benefit of the current death

beneficiary.

We conclude it was not plain error for the district

court to issue the writ of garnishment without compensating Shilo

Abell for her contingent death benefit under the policy.

In all, Shilo Abell cannot rely on either Massachusetts

divorce law or the contingent death benefit provision in the 401(k)

policy when her husband is not deceased and the Abells are not

divorced.

Shilo Abell has not pointed to a single authority that

recognizes a spousal vested interest in a 401(k) account in

circumstances similar to this case.

Because she has no interest

in her husband's 401(k) account, we reject her challenge to the

garnishment order without reaching her additional arguments.5

The order of the district court is affirmed.

Shilo Abell's Fourth Amendment argument is meritless

because it relies on the assumption that she had a "lawful

interest" in Edward Abell's account. None of her remaining claims

provide this court with any reason to conclude she has a current

legal interest in her husband's retirement account.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.