UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30215 Plaintiff-Appellee, D.C. No. v. 1:13-cr-00091- BLW-1 ELLEN SUZANN SWENSON, Claimant-Appellant, OPINION DOUGLAS L. SWENSON; MARK A. ELLISON; JEREMY S. SWENSON; DAVID D. SWENSON, Defendants.

Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted February 3, 2020 Seattle, Washington

Filed August 19, 2020 Before: MILAN D. SMITH, JR., N. RANDY SMITH, and DANIEL A. BRESS, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.; Partial Concurrence and Partial Dissent by Judge N.R. Smith 2 UNITED STATES V. SWENSON

SUMMARY *

Criminal Law / Garnishment

In a case in which the government sought to enforce an order pursuant to the Mandatory Victims Restitution Act (MVRA) that Douglas Swenson pay restitution following his conviction for wire and securities fraud, the panel (1) reversed the district court’s order denying his wife Suzann Swenson’s objections to a writ of garnishment sought by the government against a bank account that held Mrs. Swenson’s Social Security benefits, (2) vacated the district court’s order directing the disposition of the funds pursuant to the writ of garnishment, and (3) remanded for further proceedings.

The panel held that the district court’s disposition order pursuant to 28 U.S.C. § 3205(c)(7) is a final, appealable order that this court has jurisdiction to review.

The panel held that the district court erred by concluding that Mrs. Swenson’s Social Security benefits were subject to garnishment to satisfy her husband’s restitution order. The panel rejected the government’s contention that the funds are subject to garnishment because Swenson has a right to Mrs. Swenson’s Social Security benefits pursuant to community property principles of Idaho law. The panel noted that the Idaho Court of Appeals has ruled that the statutory scheme of the Social Security Act is in actual conflict with, and thus preempts, the state community property law that would otherwise dictate the delineation of property; and that Mrs. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. SWENSON 3 Swenson’s benefits are therefore not a divisible community asset. The panel wrote that because Mrs. Swenson’s benefits are not Mr. Swenson’s property, and Mr. Swenson has no right to them, the MVRA does not override the Social Security Act’s anti-alienation provision as to Mrs. Swenson’s benefits, and thereby permit the government to reach them.

Judge N.R. Smith concurred that this court has jurisdiction, and otherwise dissented. He wrote that the MVRA allows the government to garnish the account because Mr. Swenson has an interest in the account under Idaho’s community property law, a conclusion the majority avoids by ignoring the fact that federal law does not preempt Mr. Swenson’s interest or otherwise bar the government from garnishing it. 4 UNITED STATES V. SWENSON

COUNSEL Jed W. Manwaring (argued) and Christy A. Kaes, Evans Keane LLP, Boise, Idaho, for Claimant-Appellant. William M. Humphries (argued), Assistant United States Attorney; Bart M. Davis, United States Attorney; United States Attorney’s Office, Boise, Idaho; for Plaintiff- Appellee.

OPINION M. SMITH, Circuit Judge:

Following a conviction for wire and securities fraud, Dou