No. 20-1120

UNITED STATES OF AMERICA,

Appellee,

v.

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 LYNCH, Circuit Judge. Shilo Abell appeals from the district court's January 17, 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-million- dollar 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. He 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

1 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.

- 2 - investment accounts. In total, Edward Abell embezzled approximately $3,879,750 between 2006 and 2017. 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 he was able and willing to pay substantial restitution to his victims. 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. This court upheld his sentence in an unpublished judgment. 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

- 3 - balance grew to $3,922,484.02