In US v. Miller, No. 08-11186, the court of appeals affirmed dismissal of defendant's petition for audita querela challenging a restitution order resulting from his conviction for conducting a monetary transaction with criminally-derived funds and evading income tax.
As the court wrote: "On August 1, 2003, defendant-appellant, Frederick Charles Miller (Miller), pleaded guilty to one count of conducting a monetary transaction with criminally-derived funds and one count of evading income tax. He was sentenced to concurrent terms of ninety-six and sixty months' imprisonment and to a three-year period of supervised release. He was also ordered to pay restitution in the amount of $1,485,074.24. After his direct appeal and several collateral attacks failed, Miller filed a petition for a writ of audita querela with the district court on September 26, 2008, seeking to have the amount of his restitution order reduced. The district court dismissed the petition."
The Fifth Circuit found that, although 18 U.S.C. section 3663A provided that, when a criminal restitution order was issued, it must be offset by "the value . . . of any part of the property that is returned," this language should not be read to require district courts to formally modify restitution orders every time a defendant subsequent to the order makes a payment on his obligation.
Furthermore, if it still exists, the writ of audita querela can only be applied to rectify a judgment which, though correct when rendered, has since become infirm. Thus, as all parties to this case agree that the district court's restitution order was initially correct, and because the statute does not require the order to be modified every time a subsequent payment is made on a restitution obligation, there is no infirmity in defendant's judgment for a writ of audita querela to rectify.