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LEGISLATIVE PROPOSALS BEFORE THE 110TH 

CONGRESS TO AMEND FEDERAL RESTITUTION 

LAWS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 3, 2008 

Serial No. 110–138 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

BETTY SUTTON, Ohio 

LOUIE GOHMERT, Texas 

J. RANDY FORBES, Virginia 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

APRIL 3, 2008 

Page 

OPENING STATEMENT 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 3 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Member, Subcommittee on Crime, Terrorism, and Homeland 

Security ................................................................................................................. 4 

WITNESSES 

The Honorable Byron Dorgan, a United States Senator from the State of 

North Dakota 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 22 

Mr. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, George Washington Law School, Washington, DC 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 30 

Andrew Weissmann, Esquire, Jenner & Block LLP, New York, NY 

Oral Testimony ..................................................................................................... 46 

Prepared Statement ............................................................................................. 47 

David B. Smith, Esquire, English & Smith, Alexandria, VA 

Oral Testimony ..................................................................................................... 52 

Prepared Statement ............................................................................................. 54 

Mr. Paul G. Cassell, Professor, S.J. Quinney College of Law, University 

of Utah, Salt Lake City, UT 

Oral Testimony ..................................................................................................... 69 

Prepared Statement ............................................................................................. 71 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 141 

(1) 

LEGISLATIVE PROPOSALS BEFORE THE 110TH 

CONGRESS TO AMEND FEDERAL RESTITUTION LAWS 

THURSDAY, APRIL 3, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:08 p.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Johnson, Davis, Gohmert, 

Chabot, and Lungren. 

Staff Present: Bobby Vassar, Subcommittee Chief Counsel; Karen 

Wilkinsen, AOC Detailee; Veronica Eligan, Majority Professional 

Staff Member; Mario Dispenza (Fellow), ATF Detailee; and Caroline Lynch, Minority Counsel. 

Mr. SCOTT. Good afternoon. I am pleased to welcome you to this 

hearing on the legislative proposals before the 110th Congress to 

amend Federal restitution laws. 

We are here at the Subcommittee on Crime, Terrorism, and 

Homeland Security to hear testimony about the proposed legislation that would make sweeping changes to the Federal restitution 

laws aimed at reversing the trend of the increasing backlog of unpaid restitution of crime victims, which the Government Accountability Office estimated to be $25 billion at the end of 2005. 

We will hear testimony about S. 973, sponsored by the Senator 

from North Dakota, Mr. Dorgan, and H.R. 4110, sponsored by the 

gentlelady from New Hampshire, Ms. Shea-Porter, in the House of 

Representatives, each titled, the ‘‘Restitution for Victims of Crime 

Act.’’ 

We will also hear testimony about H.R. 845, the ‘‘Criminal Restitution Improvement Act,’’ sponsored by the gentleman from Ohio, 

Mr. Chabot, which was also introduced in the House. 

[The bills referred to are printed in the Appendix of this publication.] 

Mr. SCOTT. The bills would widen the number and type of Federal laws that would trigger mandatory restitution to a victim of 

crime and broaden the definition of a victim. They also would increase the type of victim costs that may be included in restitution 

orders, such as the victim’s attorney fees. And they enhance enVerDate Aug 31 2005 10:57 Nov 26, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040308\41580.000 HJUD1 PsN: DOUGA
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forcement of the restitution orders, such as mandating payment 

while a case is pending, and by delegating enforcement authority 

to prison officials through inmate financial responsibility. 

Each of these changes is intended to get more compensation to 

more victims. But, by far, the most far-reaching changes in the proposals that they share in common is that they would authorize the 

U.S. Attorney to freeze the assets of suspects even before they are 

charged with any crime. The objective is to prevent defendants 

from hiding their assets, to keep them available to pay restitution 

to victims if and when the court orders restitution. 

However, proponents of the measure have concerns about whether the objective behind freezing assets would actually be met and 

whether it would prevent a person from being able to hire counsel. 

Thus, this proposal is not only the most far-reaching but also needs 

the most discussion. 

Under the proposals, the U.S. Attorney would be able to get an 

ex parte restraining order, freezing a suspect’s assets, by showing 

a judge that the suspect, if indicted and if convicted, would be liable for victim restitution. The suspect would have no notice that 

the U.S. Attorney is applying for the order and, thus, would not be 

able to offer argument against it before it would take place. 

Opponents of the measure consider it a Government seizure with 

no conviction and no linking to frozen assets as fruits of a crime 

or even tools to commit a crime, such as the Government must 

show in a typical asset-forfeiture procedure. The person may be entitled to a hearing after their assets are seized; however, to meet 

this burden of proof to get a hearing, the person must show that 

the seizure has hindered his ability to hire a lawyer or that the seizure has deprived him of the basic necessities of life. 

Yet, even if a person gets a hearing, the court must deny his request to release his assets if the court finds that it is probable that 

he must pay restitution if convicted. Thus, his claim that the seizure has hindered his ability to hire counsel would, in essence, apparently have no effect on the court’s decision. 

If opponents to the measure are correct, this is not only likely to 

be an unconstitutional encroachment on one’s sixth amendment 

right to counsel but also an unconstitutional violation of due process, which is why this measure needs full vetting. 

Proponents to the proposals point out that restitution is already 

mandated in most instances of victim loss in Federal criminal 

cases. In 2001, the Government Accountability Office reported, 

quote, ‘‘The Mandatory Victims Restitution Act of 1996, requiring 

the court to order full restitution to each victim in the full amount 

of each victim’s losses without regard of the offender’s economic situation, has not resulted in significantly more restitution being collected but only a dramatic increase in the balance of reported uncollected criminal debt.’’ 

Also the GAO report indicated that, even in the few instances 

where the defendant does have some money or assets, it is difficult 

to collect restitution, noting that criminal defendants may be incarcerated with little earning capacity, and therefore their assets acquired through criminal activity may be seized by Government 

prior to the conviction. Thus, by the time fines and restitution are 

3 

assessed, offenders may have no assets left for making payments 

on restitution. 

Now, if, as the GAO report indicates, the vast majority of offenders are broke when they come into prison, going out and trying to 

find a job with a felony record seems unlikely to improve their ability to have money to meet their own need to survive, the survival 

of their dependents, and have any money left over for restitution. 

So, although everyone is in favor of more restitution, mandatory 

restitution, in even more cases, may or may not be the solution to 

meet that end, because we might be violating the old English 

maxim that you can’t squeeze blood out of a turnip. 

However, there are alternatives that may, in fact, meet the goal 

of getting more restitution to victims. And we would like to discuss 

them today, as we discuss the legislative proposals before us. 

It has been my observation that restitution works best when it 

is an alternative to the incarceration, which results in the loss of 

employment income and assets that accompany such incarceration. 

I believe that we should consider biting the bullet and establishing a victims’ restitution fund from Federal appropriations and 

payments we can easily collect or reasonably collect from offenders. 

We should then refocus the Federal victim restitution collection efforts on areas where it may have more impact, such as going after 

assets of white-collar offenders who profit handsomely from their 

crimes and may have a means of paying. That way, victim restitution is neither dependent on the vagaries of an offender’s ability to 

pay or Government’s collection efforts. 

So, as we discuss legislative proposals, I would like to discuss alternatives so that we may come together and establish the best 

mechanism for meeting our common goal. 

It is now my pleasure to recognize the esteemed Ranking Member of the Subcommittee, the gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Chairman Scott. I appreciate your 

holding this hearing on a problem that Congress can and should 

correct, providing restitution to victims of crime. 

Every 30 minutes, there is a murder in this country; every 5 

minutes, a rape; every minute, a robbery; and every 36 seconds, an 

aggravated assault. Nearly 16 million Americans were the victims 

of crime in 2006. 

These victims suffer a tremendous loss at the hands of their assailants. In addition to physical and emotional trauma, victims endure financial loss, including medical expenses, lost earnings and 

property damage. Annual losses for crime victims have been estimated at $105 billion. 

Restitution has been part of our criminal justice system for nearly a century. It plays an important role in rehabilitating offenders 

by holding them accountable to their victims. Restitution also attempts to make victims closer to being whole by compensating their 

financial loss caused by the offender’s criminal conduct, though it 

is clear the victims of violence are never really put back to the 

place they were before an attack. 

Although Congress granted Federal courts explicit authority to 

order restitution in 1925, this authority was infrequently used for 

decades. Congress responded in 1982 with the Victim and Witness 

4 

Protection Act, which vested Federal courts with the general discretion to order restitution in any criminal case. 

In the Violent Crime Control and Law Enforcement Act of 1994, 

Congress established mandatory restitution for sexual abuse, sexual exploitation of children, and domestic violence cases. In the 

Mandatory Victim Restitution Act, Congress made restitution mandatory for most serious Federal crimes, including crimes of violence 

and property crime. 

Despite these Federal laws promising restitution to crime victims, the Government has failed to make payment on its promise. 

As much as 87 percent of criminal debt—restitution and fines, that 

is—is uncollected each year. The Justice Department estimates 

that the amount of uncollected Federal criminal debt increases 

with each passing year, jumping from $41 billion in fiscal year 

2005 to nearly $46 billion in fiscal year 2006 and over $50 billion 

in fiscal year 2007. 

In California, there is over $6 billion in uncollected Federal 

criminal debt for fiscal year 2007. In my home State of Texas, there 

is over $3 billion of uncollected debt, and over $1 billion in Michigan and Ohio. 

That is why today’s hearing is so important. I wish to thank Senator Dorgan and my colleague, Congressman Chabot, for their leadership on this issue. The legislation each has sponsored will come 

closer toward fulfilling Congress’s promise of restitution for crime 

victims. 

I would also like to add that, as a State district judge handling 

felony cases, often one of the considerations of whether or not to 

give somebody probation included whether or not, by giving them 

probation, there was an opportunity for a victim to become closer 

to being made whole. And if that were a possibility, then as a condition of probation, I could lock somebody up for as much as 2 

years through different programs. But if there was a chance we 

could require restitution, then that would be ordered and made 

reasonable to where it could be met. And if it wasn’t met, that was 

a breach of the conditions of probation. Might as well lock them up 

in prison if they weren’t going to try to pay their restitution. 

There is a different system here with the Federal authorities, but 

we have the authority here in Congress to fix things. It is one of 

the reasons I left the bench, because I didn’t want to legislate from 

the bench. And I saw that through innovations, such as Senator 

Dorgan has proposed here, that we could literally try to fix things 

that we actually thought through and came up with a solution toward. 

So, Senator, thank you, again, for your time and being here 

today. I look forward to hearing your testimony. 

And yield back the balance of my time, Mr. Chairman. 

Mr. SCOTT. Thank you. 

Does the gentleman from Georgia have a comment? 

The gentleman from Ohio is the chief sponsor of one of the bills, 

and we would call on him to describe his legislation at this time. 

Mr. CHABOT. Thank you very much, Mr. Chairman. And I would 

like to thank you for holding this important hearing today and our 

witnesses for taking the time to testify. 

5 

And I want to thank you, Senator, for your leadership in this 

area of restitution. 

Last year, at this time, the full Judiciary Committee was considering the Second Chance Act, which, among other things, reauthorized $360 million for re-entry programs for offenders. As the Committee considered the bill, I pointed out that it was missing a critical section, one that would have made the bill fairer and more 

just, and that is making the payment of restitution to the victims 

of criminal offenses mandatory. 

In 2004, this Committee, the House, the Senate and the President recognized the need to bring greater fairness to our criminal 

justice system, particularly for crime victims. Through the Justice 

for All Act and the enactment of the Crime Victims’ Bill of Rights, 

we gave victims a stronger voice in our criminal justice process. Included among these rights is the right to full and timely restitution 

as provided by law. 

Yet victims continue to bear the brunt of crime in this country. 

According to the Department of Justice, crime costs victims and 

their families more than $105 billion, as was mentioned, in lost 

earnings, public victim assistance, and medical expenses. Moreover, 

despite a victim’s right to, quote, ‘‘full and timely restitution,’’ unquote, it remains one of the most under-enforced victims’ rights 

within our just system. In fact, 87 percent, as has been mentioned, 

of criminal debt, including restitution and fines, goes uncollected 

each year. And the amount of outstanding criminal debt is only expected to increase, ballooning from $269 million to almost $13 billion. In fact, in my own State of Ohio, as was mentioned, more 

than $1.25 billion in criminal debt remained uncollected at the end 

of fiscal year 2007. 

The Criminal Restitution Improvement Act of 2007, which I introduced last year, would fulfill the promise that we made to victims in 2004 and let them know that they have not been forgotten. 

H.R. 845 would make the payment of restitution mandatory in all 

Federal offenses for which monetary losses are identifiable. 

In making restitution mandatory, this bill takes into account a 

defendant’s economic circumstances and those that depend on the 

defendant when restitution decisions are made. Moreover, the bill 

allows the Attorney General to collect unreported or newly discovered assets above the payment schedule, which currently cannot be 

applied. 

H.R. 845 is supported by the leading crime victims’ organizations, including Parents of Murdered Children, the National Organization for Victims Assistance, and the National Center for Victims of Crime, just to name a few. 

I would ask unanimous consent, Mr. Chairman, to enter additional letters of support for H.R. 845 by various crimes victims’ 

rights organizations into the record. 

Mr. SCOTT. Without objection, so ordered. 

Mr. CHABOT. Thank you, Mr. Chairman. 

[The letters follow:] 

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Mr. CHABOT. Senator Dorgan has also introduced similar legislation, which he will describe in a few moments if we quit talking 

up here very soon. But I think it is safe to assume that we both 

believe that it is not too much to ask of our criminal system that 

it ensure that offenders repay their debts. Moreover, I believe the 

compliance with restitution orders is a strong measure of a prisoner’s willingness to successfully re-enter our communities. 

If we are willing to spend more than $360 million a year on offenders, doesn’t fairness and justice dictate that victims should be 

able to receive what they lost, at a minimum? Why should these 

innocent individuals continue to bear the brunt of someone else’s 

actions—criminal actions, I might add? 

Again, I thank the Chairman for holding this hearing and our 

witnesses, particularly Senator Dorgan and Judge Cassell, for taking time out of their busy schedules to be with us here today. And 

I yield back the balance of my time. 

Mr. SCOTT. Thank you. Thank you very much. 

Our first witness is the Senator from North Dakota, the Honorable Byron Dorgan, sponsor of S. 973. He has a long and distinguished career as a Member of Congress, serving 6 years in the 

House and currently in his third term as Senator representing 

North Dakota. He earned a Bachelor of Science degree from University of North Carolina and Master’s of Business Administration 

from the University of Denver. 

Senator, your written statement will be made part of the record 

in its entirety, and we ask you to make whatever statement you 

would like to make now, hopefully staying within 5 minutes, but 

we will see. The lighting device is at the table. 

TESTIMONY OF THE HONORABLE BYRON DORGAN, A UNITED 

STATES SENATOR FROM THE STATE OF NORTH DAKOTA 

Senator DORGAN. Mr. Chairman, thank you very much. 

It is actually North Dakota, not North Carolina, but it is north 

in any event. 

And I am really pleased to be back and pleased, Chairman Scott, 

that you have called these hearings. 

And I want to say first that Senator Grassley, the lead cosponsor 

on the bill that we introduced in the Senate, has asked to add a 

letter as part of this testimony. I ask consent that that be done. 

[The letter follows:] 

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Senator DORGAN. The National Center for Victims of Crime, I 

would like to ask consent that their statement in support of the bill 

also be a part of the hearing record. 

[The information referred to follows:] 

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Senator DORGAN. And then I would like to commend Congressman Chabot and Congresswoman Carol Shea-Porter, who have 

worked on this issue. So, especially thanks to them. 

You know, this is really interesting, because I was thinking 

about it a while ago, if you owe money these days, you would probably want to owe it to the U.S. Justice Department. If you’re going 

to owe money to anybody, owe it in the form of something that is 

a court-ordered restitution to be collected by the Justice Department, because they are only collecting 4 cents on the dollar. There is $50 billion owed. Now, why is that the case? Because, 

in most cases, it is the back room at the U.S. Attorney’s Office that 

is asked to collect these things, and they are working up in the 

front room on prosecutions and so on, and precious little attention 

is paid to restitutions and fines. 

But it is also the case that they are hampered, because the fact 

is those that have been ordered to provide restitution for victims 

in many cases have been given ample opportunity to dissipate 

those assets. 

So I just think it is Byzantine that we have any real debate over 

whether something should be done. My hope is that whatever questions arise would be over what should be done, rather than whether. If, with $50 billion owed to victims, we don’t do something, then 

we don’t recognize a problem when it is right in front of us. 

So let me mention a couple of things about where we are. 

At my request, the GAO reviewed five major white-collar financial fraud cases with outstanding, unpaid restitution. They took a 

look at the details of five of them. Here is what they found. I have 

a couple of charts to show you what these folks have been doing. 

White-collar crime perpetrators who have been judged guilty and 

ordered restitution: expensive trips overseas, jewelry, fancy cars, 

million-dollar homes, spending thousands of dollars a month on entertainment. These are people who have been ordered by the court 

to pay restitution, who haven’t done so, and yet have found ways 

to spend this money on overseas trips and fancy homes and so on. 

All of us ought to be outraged by that, because who are the victims? They are the victims who were victimized previously for 

which there was ordered restitution. 

Now, the fact is many years can pass between the date a crime 

occurs and the date that a court might order restitution, and that 

gives criminal defendants ample opportunity to spend or hide their 

ill-gotten gains. 

I have worked for some long while with the Justice Department 

to try to figure out how you can put together a system that works 

and one that provides protection for those who have been ordered 

restitution, because they need some protection to be able to appeal 

rulings and so on, but especially one that addresses the rights of 

victims. And I think we have done that. 

Let me just describe—I have a number of cases; I will just describe one. A $3.2 billion restitution judgment—that is a big one— 

entered against defendants. But these defendants were pretty 

smart, actually. They had some time and they had some opportunity, so they transferred to their wives liquid assets, which they 

had titled solely in their name previously, transferred cash and securities worth more than $24 million. Another one transferred to 

21 

1The complete list referred to is contained in Senator Dorgan’s prepared statement which is 

printed in this published hearing. 

his wife $14 million, real and personal property of $6.7 million. 

Both created irrevocable trusts during the time they knew they 

were under criminal investigation. One transferred his trust real 

estate and liquid assets worth more than $20 million. The other 

funded his trust with real property currently valued at more than 

$5 million. 

That money, of course, should have gone to victims. That is what 

the court intended. But because the system doesn’t work, they got 

by with dissipating assets. And we shouldn’t—none of us should 

allow that to happen. 

Last fall, the U.S. Senate took up and passed the piece of legislation that Senator Grassley and I offered. We made a couple of 

changes, but I want you to know that the Senate has passed this 

legislation. I have visited with the Chairman of the full Committee 

and with you, Mr. Chairman, Chairman Scott, asking you to consider moving the legislation, as well. 

It is supported by the Department of Justice, with whom we have 

worked, the National Center for Victims of Crime, Mothers Against 

Drunk Driving, National Organization for Victims Assistance, National Alliance to End Sexual Violence, Parents of Murdered Children, Justice Solutions, and the list goes on. I would like to put the 

complete list in the record.1

But it is pretty clear, A, we have a problem, and it is a big problem, $50 billion. One can make a case that perhaps some of these 

people will never pay a cent because they are destitute. I understand that. But that is not the reason that brings me to this hearing room. 

What brings me to this hearing room is a system which allows 

some folks with a lot of money to be ordered by the court to provide 

restitution and, instead, they are taking trips to Europe. They are 

dissipating their assets. They are giving their money to the kids to 

start a business. And the victims are told to, ‘‘Go fly a kite’’ and 

the court doesn’t seem to be able to do much about it, because 

those assets are not protected to be saved for the victims. 

Now, Mr. Chairman, you said, and you are absolutely correct, 

you can’t get blood from a turnip. That is true. But we ought to 

be able to squeeze a little money from those people who have been 

ordered to provide restitution and who are traveling to Europe for 

a vacation. We ought to be able to squeeze a little money out of 

those folks ordered to pay a restitution who are living in a milliondollar house. We ought to be able to squeeze a little money out of 

those folks who have been ordered to pay restitution to victims who 

have decided that they want to divert their assets to their spouse 

and their kids for the purposes of establishing trusts or starting a 

new business. 

And I believe that if we all work together and do the right thing, 

provide adequate protection with the capability of a judge and the 

capability of having an attorney for defendants, provide the right 

protection, I believe we will come to the right conclusion. And that 

is, victims ought to expect that this Government and the order of 

restitution from a court will mean something to victims, especially 

22 

when it is ordered against those that have significant assets. That 

has been the case, and yet victims go wanting. This Congress 

should not allow that to happen. 

The question isn’t whether we do something. We should. The 

question is, what do we do? Can this be improved upon? Probably. 

But I certainly hope that this Committee will do what the full Senate has done. The full Senate has passed my legislation, the Dorgan-Grassley bill. My hope is the House will do the same. 

Mr. Chairman, you are good to allow me the opportunity to come 

back over to the House and spend a bit of time with you, and I 

thank you very much for convening this hearing. 

[The prepared statement of Mr. Dorgan follows:] 

PREPARED STATEMENT OF THE HONORABLE BYRON DORGAN, A U.S. SENATOR FROM

THE STATE OF NORTH DAKOTA

Chairman Scott and Ranking Member Gohmert, I would like to thank you for 

holding a hearing today to examine proposals to improve the collection of unpaid 

federal court-ordered restitution, including bipartisan legislation I have authored 

with Senator Grassley in the Senate called the Restitution for Victims of Crime Act, 

S. 973. Representative Chabot and Representative Carol Shea-Porter have introduced related measures in the U.S. House. 

As all of us know, victims of crime and their families often face a significant challenge trying to rebuild their lives and recover a sense of emotional and financial security after a crime has been perpetrated against them. By law, victims of federal 

crimes are entitled to ‘‘full and timely restitution’’ for losses from a convicted offender. 

Unfortunately, new data from the Department of Justice shows that the amount 

of uncollected federal criminal debt is still spiraling upward—jumping from $6 billion in 1996 to more than $50 billion by the end of fiscal year 2007. That’s a more 

than eight-fold increase in uncollected criminal debt owed to the victims of federal 

crimes. 

Government Accountability Office (GAO) investigators found that federal criminal 

justice officials collected an average of only four cents on every dollar of criminal 

debt that was owed to crime victims in 2000, 2001 and 2002. 

These figures are disheartening, and the victims of crime in this country deserve 

better. Crime victims should not have to worry if those in charge of collecting courtordered restitution on their behalf are making every possible effort to do so before 

criminal offenders have the opportunity to fritter away their ill-gotten gains on lavish lifestyles and the like. This matter is not mere speculation. 

At my request, the GAO reviewed five white collar financial fraud cases with outstanding unpaid restitution. GAO found: 

• Crime perpetrators who owed restitution taking expensive trips overseas. 

• Convicted criminals living in million dollar mansions in upscale neighborhoods, but not making their court-ordered restitution payments. 

• Criminals who fraudulently obtained millions of dollars in assets were using 

those assets to buy expensive clothing instead of paying restitution they owed. 

• Criminals spending thousands of dollars per month in entertainment, even 

though court ordered restitution went unpaid. 

• Convicted criminals who had taken their ill-gotten gains and established businesses for their children in order to avoid the payment of court ordered restitution. 

S. 973 will give Justice Department officials the tools they have requested to help 

them do a better job collecting court-ordered federal restitution and fines. Our bill 

includes provisions that will remove many existing impediments to increased collections. For example, Justice Department officials have described a circumstance 

where they were prevented by a court from accessing $400,000 held in a criminal 

offender’s 401(k) plan to pay a $4 million restitution debt to a victim because that 

court said the defendant was complying with a $250 minimum monthly payment 

plan, and that payment schedule precluded any other enforcement actions. S. 973 

would remove impediments like this in the future. 

This legislation also addresses a major obstacle identified by the GAO for officials 

in charge of criminal debt collection; that is, many years can pass between the date 

23 

a crime occurs and the date a court orders restitution. This gives criminal defendants ample opportunity to spend or hide their ill-gotten gains. That is why S. 973 

provides for pre-conviction procedures for preserving assets for victims’ restitution. 

This will help ensure that financial assets in control of a criminal defendant are 

available when a court imposes a final restitution order on behalf of a victim. 

As a safeguard, our bill allows a criminal defendant to challenge a court’s prejudgment asset preservation order. For example, a defendant may challenge a postindictment restraining order if he or she can show that there is no probable cause 

to justify the restraint. In a similar manner, our proposal includes language that 

guarantees that an accused party will have access to adequate resources for attorney fees or reasonable living expenses from the time of indictment through the 

criminal trial. 

These pre-conviction procedures for preserving assets for victims’ restitution will 

prevent criminal defendants from spending or hiding their ill-gotten gains and other 

financial assets. These tools are similar to those already used successfully in some 

states, by federal officials in certain asset forfeiture cases, and upheld by the courts. 

Key provisions of S. 973 would do the following: 

• Clarify that court-ordered federal criminal restitution is due immediately in 

full upon imposition, just like in civil cases, and that any payment schedule 

ordered by a court is only a minimum obligation of a convicted offender. 

• Allow federal prosecutors to access financial information about a defendant in 

the possession of the U.S. Probation Office—without the need for a court 

order. 

• Clarify that final restitution orders can be enforced by criminal justice officials through the Bureau of Prisons’ Inmate Financial Responsibility Program. 

• Ensure that if a court restricts the ability of criminal justice officials to enforce a financial judgment, the court must do so expressly for good cause on 

the record. Absent exceptional circumstances, the court must require a deposit, the posting of a bond or impose additional restraints upon the defendant from transferring or dissipating assets. 

• Help ensure better recovery of restitution by requiring a court to enter a preconviction restraining order or injunction, require a satisfactory performance 

bond, or take other action necessary to preserve property that is traceable to 

a charged offense or to preserve other nonexempt assets, if the court determines that it is in the interest of justice to do so. 

• Permit the Attorney General to commence a civil action under the Anti-Fraud 

Injunction Statute to enjoin a person who is committing federal offense that 

may result in a restitution order; and permit a court to restrain the dissipation of assets in any case where it has power to enjoin the commission of a 

crime, not just in banking or health care fraud as permitted under current 

law. 

• Allow the United States under the Federal Debt Collections Procedure Act to 

use prejudgment remedies to preserve assets in criminal cases that are similar to those used in civil cases when it is needed to preserve a defendant’s 

assets for restitution. Such remedies, including attachment, garnishment, and 

receivership, are not currently available in criminal cases because there is no 

enforceable debt prior to an offender’s conviction and judgment. 

• Clarify that a victim’s attorney fees may be included in restitution orders, including cases where such fees are a foreseeable result from the commission 

of the crime, are incurred to help recover lost property or expended by a victim to defend against third party lawsuits resulting from the defendant’s 

crime. 

• Allow courts to order immediate restitution to those that have suffered economic losses or serious bodily injury or death as the result of environmental 

felonies. Under current law, courts can impose restitution in such cases as a 

condition of probation or supervised release, but this means that many victims of environmental crimes must wait for years to be compensated for their 

losses, if at all. 

The Restitution for Victims of Crime Act has been endorsed by a number of organizations concerned about the well-being of crime victims, including: The National 

Center for Victims of Crime, Mothers Against Drunk Driving, the National Organization for Victims Assistance (NOVA), the National Alliance to End Sexual Violence, 

Parents of Murdered Children, Inc., Justice Solutions, the National Network to End 

Domestic Violence, the National Association of VOCA Assistance Administrators 

24 

(NAVAA) and the National Crime Victim Law Institute. United States Attorney 

Drew Wrigley in Fargo, North Dakota has said this legislation ‘‘represents important progress toward ensuring that victims of crime are one step closer to being 

made whole.’’ 

Last fall, the Senate passed by unanimous consent a Dorgan-Grassley amendment 

on the Senate floor. This amendment contained all of S. 973 except the bill’s environmental crimes title. I hope that members of the House Judiciary Crime Subcommittee and the members of the Full Committee will also agree that the current 

state of our federal criminal debt collection effort is not acceptable, and that this 

legislation is a serious effort to improve it. 

April 13 marks the beginning of National Crime Victims’ Rights Week, an annual 

commemoration that has been observed since the early 1980s to honor crime victims 

and call attention to their plight. One way to show our support would be to pass 

legislation to ensure that victims of crime and their families are given the compensation they are rightly owed. 

Mr. Chairman and Ranking Member Gohmert and other members of subcommittee, I look forward to working with you to address any questions about our 

legislation and to send a clear message to white collar and other criminals: if you 

commit a crime you will be held accountable and will not be allowed to benefit in 

any way from your criminal activity and ill-gotten gains. 

Mr. SCOTT. Thank you very much. 

Are there any questions of the Senator? 

If not, thank you very much, Senator. 

Mr. GOHMERT. Would he like any questions? 

Senator DORGAN. Just positive questions, if you have. [Laughter.] 

But I did, Mr. Chabot, reference your work and the work of your 

colleague. I appreciate the work that has been done in the House, 

and I hope perhaps you will be able to move this legislation. 

And, again, Mr. Chairman, I know you have other witnesses, so 

let me thank you for allowing me to come over. 

Mr. SCOTT. Thank you very much. 

The gentleman from Georgia? 

Mr. JOHNSON. I move to strike the last word. 

Mr. SCOTT. Is this a question for the witness? The process would 

be he testifies, we ask questions. 

Mr. JOHNSON. Not really a question. I would just like to make 

an observation. 

Mr. SCOTT. The gentleman is recognized to ask questions or to 

make a comment or whatever. 

Mr. JOHNSON. Yes, with all due respect, Senator, I would say 

that the norm for defendants having been convicted and sentenced 

to pay restitution and, often, to serve mandatory lengthy prison 

sentences, that the number of those who have any assets are miniscule. It is mostly poor people, people without assets, who actually 

fall into the criminal justice system and wind up having committed 

crimes and convicted of crimes that require them to pay restitution. 

And so, it just seems that the legislation, though the purpose is 

worthy, is like a mallet being used to subdue a mosquito and may 

be a little harsh to the average—to the overwhelming number of 

defendants who it would apply to. 

And basically I am talking about the pre-charge ability of prosecutors to assess or to impose a freeze on whatever assets there 

might be, a car or a bank account with a couple ofhundred or a 

couple of thousand dollars, that kind of thing. So it gives prosecutors a lot of discretion prior to the individual even being charged. 

And then it ties the hands of the judges, further limiting their discretion to be able to assess a reasonable amount for restitution 

25 

payments or even to allow a defendant to come out from under the 

pre-conviction freeze. 

And so I just wanted to make those observations. 

I think there are a number of reasons why the Justice Department would be behind on collecting restitution, as well, such as 

they are overworked and overburdened pursuing more important 

matters. Perhaps we can staff them up a little bit more adequately 

so that they can do a better job of collecting restitution. 

And maybe it is because the defendants who have been assessed 

the restitution don’t have the money. Maybe that is the reason why 

there is so much money owed under restitution. 

So, with all due respect, those are my observations. 

Senator DORGAN. Mr. Chairman, if I might? 

Your point is well-taken. In many ways, you are winning a debate we are not having, because my point isn’t coming here to suggest that someone who commits a crime, is sentenced to a lengthy 

period in a facility for incarceration and comes out with nothing, 

my point isn’t that Justice or anybody else is going to be able to 

get that from them. The Chairman said you can’t get blood from 

a turnip; I agree with that. 

But I would say this. Look at the newspaper in the morning and 

evaluate what scandals surround us these days, with unbelievable 

speculation, white-collar crime that is unbelievable. And then ask 

yourself this: When we send those folks to prison, as we should if 

they have violated the law, should we also allow them to send their 

money to an account someplace to be able to them when they come 

out of prison, or should some of that ill-gotten gain be retrieved by 

the Federal Government and go to the victims? That is the point. 

Your point is an adequate point. You can debate—I don’t have 

time and you don’t have time—to debate the provisions of this bill 

to make certain the concern that you have is not a concern. 

But I would say this. I don’t think there is anybody on this Committee or in Congress who wishes to stand up and say, with respect 

to high-flying white-collar crime—and just take a look at the five 

that I asked GAO to look at—we believe it is important that victims should go wanting, even when the court has ordered restitution, while those folks are living in million-dollar homes or taking 

European vacations. I don’t think anyone believes that is appropriate. All of us believe we ought to fix it. 

So I accept your point and hope that we can solve the problem 

that does exist. 

Mr. Chairman, thank you very much. 

Mr. SCOTT. Thank you. 

Gentleman’s—— 

Mr. JOHNSON. Mr. Chairman? 

Mr. SCOTT. Does the gentleman yield back? 

Mr. JOHNSON. Well, if I could, before I yield back, I would like 

to make the observation that transfers of property by those who 

would defraud someone who is entitled to it under a restitution 

order by a court is certainly avoidable. In other words, I think current law would allow for a court to void a transfer made to defraud 

a creditor, if you will, a victim. 

26 

Senator DORGAN. That, too, is a fair point, but once it is transferred and the asset is gone, there is nothing for a victim or a court 

to retrieve. 

Mr. JOHNSON. Thank you. I will yield back. 

Mr. SCOTT. Thank you. 

Mr. GOHMERT. Mr. Chairman, that stirred up a question I would 

like to ask the Senator, if you don’t mind. 

Mr. SCOTT. He has to leave, so—— 

Mr. GOHMERT. I will be very quick. 

My friend Mr. Johnson mentioned we don’t need a mallet to kill 

a mosquito. And I haven’t read the whole bill, but there is nothing 

mandatory, in every case, that must be done to collect. Isn’t there 

discretion in your bill, Senator? 

Senator DORGAN. There is. And the issue here is the restraint of 

assets. And Congressman Johnson raises, I think, a very important 

point, which is why we have tried to deal with that in a very important way in this bill. 

It is not the case that somebody can come in and restrain the assets pre-conviction without any appeal. But it is also the case that, 

if you don’t have some tools in circumstances where you believe it 

is going to be completely dissipated and the victims will end up 

with nothing, you at least ought to give the court the opportunity 

to have those tools. 

Mr. GOHMERT. So you are not advocating using a mallet to kill 

a mosquito. You are just saying, if a bear is coming, let’s don’t 

hand him insect repellant. 

Senator DORGAN. It is not a long distance from the Senate to the 

House, but I didn’t walk all the way over here because I was concerned about mosquitoes. I am very concerned about people who 

are taking European vacations who owe victims. I am concerned 

that the victims get what they are due. 

Mr. GOHMERT. Thank you. 

Mr. CHABOT. Mr. Chairman? The Senator is free to go, if he 

would like. I just wanted to make one comment in response to—— 

Mr. SCOTT. Well, let’s let him leave before we get some other 

questions. [Laughter.] 

Thank you, Senator. 

Senator DORGAN. We have a vote at 2:45, so I have a great excuse. Thank you very much. 

Mr. SCOTT. Thanks so much. 

The gentleman from Ohio? 

Mr. CHABOT. Just very briefly, in response to my friend from—— 

Mr. SCOTT. The next witnesses will come up. 

Go ahead. 

Mr. CHABOT. The bill—and ours are somewhat different. But our 

bill, H.R. 845, it does take into account the defendant’s economic 

circumstances, so if they can’t—if they have nothing, you are not 

going to, obviously, squeeze blood from a turnip, as the Chairman 

said. So it takes into account the defendant’s economic circumstances, whether he or she has assets or not, in making the 

restitution mandatory. 

And it also takes into account the dependents of the defendant 

also, so what circumstances would that put the defendant’s family 

in, as well. So those are all taken into consideration. 

27 

But in a case where somebody has assets and could contribute 

to the victim, they ought to. And that is what our bill does. 

Mr. SCOTT. And those where the judge has discretion, is there 

discretion on the freezing of assets pre-trial? 

Mr. CHABOT. Thank you for the question. It is the judge’s determination on that. So it is an issue, and—— 

Mr. SCOTT. Okay. Well, let’s see what the panelists have to say. 

Our first witness on the second panel is going to be Jonathan 

Turley of George Washington University Law School. He teaches 

courses in constitutional law, constitutional criminal law, environmental law litigation, and torts. He is a frequent witness before the 

House and Senate on constitutional and statutory issues, as well 

as tort reform legislation. He earned his BA from the University 

of Chicago and JD from Northwestern University. 

Our next witness will be Andrew Weissmann of the law firm of 

Jenner & Block. He was the director of the Enron Task Force, the 

Chief of the Criminal Division of the United States Attorney’s Office for the Eastern District of New York, and Special Counsel to 

the Director of the Federal Bureau of Investigation. He earned his 

bachelor’s degree from Princeton and law degree from Columbia. 

Our next witness will be David Smith of the firm English & 

Smith. Prior to entering private practice, he was a prosecutor in 

the Criminal Division of the U.S. Department of Justice and at the 

U.S. Attorney’s Office in Alexandria, Virginia. He earned a bachelor’s degree from University of Pennsylvania and a law degree 

from Yale. 

Our final witness will be judge Paul Cassell, professor of law at 

the University of Utah College of Law. He has been an Assistant 

U.S. Attorney for the Eastern District of Virginia, professor of law 

for the University of Utah, and U.S. District Court Judge for the 

District of Utah, and has returned to full-time at the College of 

Law, where he teaches criminal procedure, crime victims’ rights, 

criminal law and related classes. He has a bachelor’s and law degree from Stanford. 

Again, our witnesses’ statements will all be entered in the record 

in their entirety. And I would ask each of our witnesses to summarize your testimony in 5 minutes or less. And the lighted device 

will turn from green to yellow when you have 1 minute left in your 

time, and will turn to red when your 5 minutes have expired. 

Professor Turley? 

TESTIMONY OF JONATHAN TURLEY, J.B. AND MAURICE C. 

SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW, GEORGE 

WASHINGTON LAW SCHOOL, WASHINGTON, DC 

Mr. TURLEY. Thank you, Chairman Scott, Ranking Member 

Gohmert, Members of the Subcommittee. It is an honor to appear 

again before you to talk about a subject that we can all agree is 

very important. 

Restitution is very important to a criminal system, and it plays 

a role not just in deterrence, it even plays a role in rehabilitation. 

I think we can all agree on that. We can also agree that the current rate of recovery of restitution dollars is insufficient. 

However, on these three bills, you see a great number of interstitial changes in the restitution laws. And on the initial read, I think 

28 

there is obviously much that has to be done. Many of these provisions are vague, and that vagueness will cause grave problems if 

these were to become law. 

But I am going to talk today about the most troubling aspects 

of the bill. And even though I count friends among the sponsors 

and the supporters of this bill, I must come and say that I believe 

it would be a mistake to enact this legislation. 

I have grave reservations about the necessity and the equity and 

the constitutionality of these provisions. Restitution has traditionally been a matter for courts to exercise discretion. And they have 

done it fairly well, and I think we would agree, however, that they 

have not done it enough. The question is, what is the solution? 

The solution is not, in my view, to require restitution in all Federal cases. As we have already heard, Federal defendants are largely indigent. It is about an 85 percent rate. From what I could see 

with this legislation, it would succeed only in pushing the remaining 15 percent into indigent status. It would not, in my view, increase significantly restitution to victims, which I is believe what 

we all want. 

It is true there is $46 billion that appears to be uncollected. But 

I believe it is also clear that much of the reason for that is that 

it can’t be collected, that we are issuing restitutional orders against 

people who are indigent. And we are also doing a very bad job in 

collecting from those who are the not. 

One of my greatest concerns about this legislation is the reduction of discretion for courts. I testified a few years ago with a Federal judge who told me on the side during one of the breaks that 

he had spent his entire life trying to become a Federal judge by 

having a distinguished career as a lawyer. He became a partner, 

he became a well-known trial lawyer, and the minute he became 

a judge he was told not to use any of that experience or background 

in the sentencing of a defendant. And he said he felt like he was 

a race horse tied to a plow. He could not use a thing that he had 

distinguished himself learning throughout his career. 

Our Federal bench is remarkably talented. I have been a critic 

of many judges, but, pound for pound, it is a very good bench. And 

they should be given some discretion. I have never met a pro-criminal judge or an anti-victim judge. The reason that you don’t impose 

restitution in some cases is a balancing of factors, to try to find the 

right mix so that you can punish this individual, maybe even rehabilitate this individual, while trying to give the victim back something of what was lost. I don’t believe the solution is to take away 

all discretion when it comes to restitution. 

I also encourage you to think about the impact of these laws on 

this legal system. It may look like these are modest tweaks, but 

they are not. In my view, they will trigger some cascading failures 

within that system. There are displacement impacts that occur 

when you impose a new layer of procedural requirements upon the 

court. I believe this legislation would prolong litigation in the Federal courts. It would actually hurt victims. And I honestly believe 

that it would be a mistake. 

It would increase the burden upon courts and the public defenders’ offices that are already limited. As a litigator, I can tell you, 

the dockets are getting longer. It is very common for me to tell my 

29 

clients they will have to wait for years for a final decision in a civil 

case. They are getting longer in criminal cases. This would add to 

that already-overburdened court system, and it would achieve very 

little, in my view. 

I strongly oppose some of the provisions that are contained here, 

particularly the pre-trial, even pre-indictment freezing of assets. I 

believe that that would discourage lawyers and pressure plea 

agreements and requirea defendant to essentially defend himself 

over a charge that has not been made, over counts that are not confirmed for trial. 

I also strongly oppose the provision that says you can require 

restitution before the completion of an appeal. There is a system 

under Rule 68 that works very, very well for that. 

I list all of the objections I have here, but what I would strongly 

encourage my friends on the other side to consider is that sometimes roads paved with good intentions take us places we don’t 

want to be. I believe this legislation will take us to one of those 

places. I think it will slow the courts, make them less efficient, 

make them less equitable, make them less fair. I don’t think any 

of us want that. 

And I believe that there are alternatives, and I would love to 

work with my friends and with this Committee to achieve those 

worthy ends. 

Thank you. 

[The prepared statement of Mr. Turley follows:] 

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PREPARED STATEMENT OF JONATHAN TURLEY


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Mr. SCOTT. Thank you. 

Mr. Weissmann? 

TESTIMONY OF ANDREW WEISSMANN, ESQUIRE, 

JENNER & BLOCK LLP, NEW YORK, NY 

Mr. WEISSMANN. Chairman Scott, Ranking Member Gohmert, 

Members of the Subcommittee and staff, the proposed Restitution 

for Victims of Crime Act of 2007 would, in my opinion, result in 

the unwarranted skewing of power in favor of the prosecution without the concomitant benefit to the public that would justify that result. 

I am going to focus on two aspects of the bill. First, the means 

by which the proposed bill would expand prosecutorial authority 

would set the bar too low for the prosecution to seize assets and 

the bar inordinately high for the defense to challenge that seizure. 

Second, the bill would virtually eviscerate in many corporate 

criminal investigations the protections supposedly afforded by the 

Department of Justice in its recent McNulty Memorandum governing corporate charging decisions. Such a result, I believe, would 

be both unwarranted and truly unintended. 

The bill authorizes the prosecution to make an ex parte application to restrain any assets belonging to an individual or a corporation even before indictment. Further, the bill directs that the prosecutor must demonstrate only probable cause to believe that the 

defendant, if convicted, will ordered to satisfy a restitution penalty 

in the case of a felony. Upon that showing, the legislation directs 

the court to take action in favor of the prosecution to secure the 

assets or substitute assets. Moreover, if it determines that it is in 

the interest of justice to do so, the court shall issue an order necessary to preserve any nonexempt assets of the defendant that may 

be used to satisfy such restitution order. 

This is a dramatic departure from current law with significant 

potential for abuse. One example: Pre-conviction, a prosecutor 

could exert enormous leverage over a current or even prospective 

corporate defendant by freezing all of its assets that may be used 

to satisfy a restitution order. Such a result is particularly draconian when one remembers that corporate criminal liability can be 

triggered based on the actions of a single low-level employee. 

Furthermore, because current law permits defendants to be held 

jointly and severally liable for the full amount of restitution, the 

bill would enable the prosecution to obtain ex parte an order freezing all assets of a company or individual based on the alleged conduct of other people. 

Such consequences are particularly unfair when one considers 

the myriad procedural safeguards missing from the bill. The bill 

sets an initial pre-conviction threshold standard to seize a person’s 

or a company’s assets that could always be met by the prosecution. 

The bill would enable a prosecutor to show that a person, if convicted of a felony, would be required to pay restitution. That showing could be made simply by pointing to the indictment or complaint and reading the statute. That would be all that the prosecution would have to do. 

There would be no benefit of the adversary system. There would 

be no requirement to establish a likelihood of success on the merVerDate Aug 31 2005 10:57 Nov 26, 2008 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040308\41580.000 HJUD1 PsN: DOUGA
47 

its. There would be no requirement to show that a defendant is 

likely, probable or even suspected of dissipating assets to be restrained. And with that, the prosecution can freeze all assets that 

may be subject to restitution upon conviction. 

This standard, bizarrely, is far lower than that that currently exists in the civil arena. And when you consider that, you have to 

consider that, concomitantly, the defense is then given no opportunity under this bill to challenge that order. The bill suggests that 

there is that opportunity, but, in fact, if you look at it, it is virtually impossible to meet the threshold. 

A defendant can only obtain the possibility of a hearing if he or 

she shows, by a preponderance of the evidence, that there are no 

assets to obtain counsel or to pay for necessary expenses and—not 

or—and make a prima facie showing that there is a bona fide reason to believe that the court’s ex parte finding of probable cause 

was in error. 

So let’s assume that, after the ex parte order that the defendant 

is rendered completely penniless, that is insufficient. Because what 

the defendant would have to show is that the initial restraining 

that the prosecution received ex parte was invalid or there is some 

reason to believe that. That could never be met, given how easy it 

is for the prosecution to meet the initial threshold. 

Finally, even if the court then decides to hold a hearing, the current bill says that the defendant is not entitled to any discovery 

that he or she would not otherwise get. And because that stage of 

the proceeding under current law, there is no ability to obtain any 

evidence from the Government with respect to the names of witnesses, the much-sought-after hearing would basically be illusory. 

Thank you very much. 

[The prepared statement of Mr. Weissmann follows:] 

PREPARED STATEMENT OF ANDREW WEISSMANN

Good morning Chairman Scott, Ranking Member Gohmert, and members of the 

Committee and staff. I am a partner at the law firm of Jenner & Block in New 

York. I served for 15 years as an Assistant United States Attorney in the Eastern 

District of New York and had the privilege to represent the United States as Director of the Department of Justice’s Enron Task Force and Special Counsel to the Director of the Federal Bureau of Investigation. I also am an adjunct Professor of Law 

at Fordham Law School where I teach Criminal Procedure. I am also here today 

testifying on behalf of the U.S. Chamber of Commerce. 

H.R. 4110, the proposed ‘‘Restitution for Victims of Crime Act of 2007’’ would, if 

passed in its current incarnation, result in the severe and unwarranted skewing of 

power in favor of the prosecution, with no concomitant benefit to the public that 

would justify that result. The bill would afford prosecutors sweeping authority over 

defendants’ assets—and consequently over defendants—without necessary due process guarantees or sufficient regard for the presumption of innocence, which we all 

cherish. 

I make several points in my remarks. First, the bill would greatly expand the 

scope of the assets that can be restrained pre-conviction. The bill would provide 

sweeping authority to restrain pre-conviction assets unconnected to any wrongdoing 

by the defendant. The bill runs contrary to the long tradition and jurisprudence of 

pre-conviction asset restraint and forfeiture, which are grounded exclusively in the 

recognition that the funds to be seized are ‘‘tainted.’’ 

Second, the means by which the proposed bill would enable this expansion of prosecutorial authority applies fundamentally unfair standards, which set the bar far 

too low for the prosecution to seize assets, and the bar inordinately high for the defense to challenge that seizure. 

Third, the confluence of these two problems in the proposed bill would virtually 

eviscerate in many corporate criminal investigations the protections supposedly afforded by the Department of Justice in its recent McNulty Memorandum governing 

48 

1See Section 202(a)(a)(1). Notably, the fact that such restraint of any asset—even those untainted by wrongdoing—may occur before indictment renders all persons subject to the prosecutor’s reach and eliminates the initial safeguard of the grand jury. See Section 202(a)(b)(1) (referring to ‘‘the case of a preindictment protective order’’). 2 Indeed, what is known as in rem civil forfeiture was an action at common law customarily 

used to proceed against the tainted property itself on the theory that it was guilty. As the Supreme Court wrote in United States v. Sowell, as soon as the criminal used the property unlawfully, ‘‘forfeiture under those laws took effect, and (though needing judicial condemnation to perfect it) operated from that time as a statutory conveyance to the United States of all the right, 

title and interest then remaining.’’ 133 U.S. 1, 19 (1890). Statutory enactments have added numerous criminal forfeiture provisions that permit the recovery of tainted property as punishment for the wrongdoing. 3 A corporation can be held criminally liable as a result of the criminal actions of a single, 

low-level employee if only two conditions are met: the employee acted within the scope of her 

employment, and the employee was motivated at least in part to benefit the corporation. No 

matter how large the company and no matter how many policies a company has instituted in 

an attempt to thwart the criminal conduct at issue, if a low-level employee nevertheless commits 

such a crime, the entire company can be prosecuted. New York Central & Hudson River Railcorporate charging decisions. Such a result would be both unwarranted and, surely, 

unintended. 

Finally, there is insufficient evidence that the current lack of pre-conviction restitution provisions applicable to untainted assets is the cause of the growing number 

of uncollected restitution judgments entered in criminal cases. Thus, the proposed 

bill is unnecessary to remedy this perceived problem. 

A. THE ABOLITION OF THE TAINT REQUIREMENT

The proposed bill would make several important changes to current forfeiture law. 

First, it authorizes the United States to make an ex parte application to a federal 

judge in order to restrain, without limitation, any asset of an individual or corporation even before the individual or corporation is indicted.1 Further, the bill directs 

that the prosecutor must demonstrate only ‘‘probable cause to believe that [the] defendant, if convicted, will be ordered to satisfy an order of restitution for an offense 

punishable by imprisonment for more than 1 year.’’ Section 202(a)(a)(1) (emphasis 

supplied). Upon that showing, the legislation directs that ‘‘the court . . . shall (i) 

enter a restraining order or injunction; (ii) require the execution of a satisfactory 

performance bond; or (iii) take any other action necessary to preserve the availability of any property traceable to the commission of the offense charged.’’ Section 

202(a)(a)(1)(A). Moreover, ‘‘if it determines that it is in the interests of justice to do 

so, [the Court] shall issue any order necessary to preserve any nonexempt asset . . . 

of the defendant that may be used to satisfy such restitution order.’’ Section 

202(a)(a)(1)(B) (emphasis added). 

This scheme is a significant departure from current asset restraint practice and 

policy. These pre-conviction restraint provisions are divorced from the long-established requirement that the restrained property bear the taint of the defendant’s 

wrongdoing. For decades, federal prosecutors have had the ability to freeze the 

tainted assets of persons pre-trial in order to ensure that these assets are properly 

forfeited to the government upon conviction. Key to this prosecutorial power has 

been the requirement that the assets that are subject to seizure are traceable to the 

crime itself. To freeze (and subsequently obtain) forfeitable property or funds, prosecutors have been required to show that such property is tainted.2 This requirement 

has cabined prosecutorial discretion by limiting the universe of restrainable funds 

to those traceable to the crime committed. 

The bill completely removes this ‘‘taint’’ nexus. Indeed, the government may 

freeze all of an individual’s or corporation’s assets if they ‘‘may’’ be used to pay a 

restitution order. The bill directs that ‘‘if it determines that it is in the interests 

of justice to do so, [the Court] shall issue any order necessary to preserve any nonexempt asset . . . of the defendant that may be used to satisfy such restitution 

order.’’ Section 202(a)(a)(1)(B) (emphasis added). The bill thus expressly brings all 

non-tainted assets under the control of the prosecutor whenever those assets ‘‘may’’ 

be used at some point in the future to satisfy a restitution order. 

This is a dramatic departure from current forfeiture policy, with enormous potential for abuse. For instance, pre-conviction, a prosecutor could exert enormous leverage over a current or even prospective corporate defendant by obtaining an order 

freezing all of its assets that ‘‘may’’ be used to satisfy a restitution order. Such a 

result is particularly unfair and Draconian when one remembers that criminal corporate liability can under current law attach based on the errant acts of a single 

low-level employee—even if the employee’s actions are in contravention of a strong 

corporate compliance program.3 Furthermore, because 18 U.S.C. § 3664(h) permits 

49 

road v. United States, 212 U.S. 481 (1909) (upholding constitutionality of statute that permitted 

imputation of agents’ conduct to create criminal liability for the carrier itself); Dollar S.S. Co. 

v. United States, 101 F.2d 638 (9th Cir. 1939) (affirming steamship corporation’s conviction for 

dumping refuse in navigable waters despite the company’s extensive efforts to prevent its employees from engaging in that very conduct); United States v. Twentieth Century Fox Film Corp., 882 F.2d 656 (2d. Cir. 1989) (affirming conviction despite the fact that bona fide compliance program was in effect at company); United States v. George F. Fish, Inc., 154 F. 2d. 798 (2d Cir. 

1946) (affirming corporation’s conviction based on criminal acts of a salesman); Riss & Co. v. 

United States, 262 F.2d 245 (8th Cir. 1958) (clerical worker); Texas-Oklahoma Express, Inc. v. 

United States, 429 F.2d 100 (10th Cir. 1970) (truck driver); United States v. Dye Constr. Co., 

510 F.2d 78 (10th Cir. 1975). See generally Weissmann, Andrew, ‘‘Rethinking Criminal Corporate Liability,’’ Indiana Law Journal, Vol. 82, No. 2, Spring 2007, available at SSRN: http:// 

ssrn.com/abstract=979055. 

courts to make defendants jointly and severally liable for the full amount of restitution, the proposed bill would enable the prosecution to obtain ex parte an order wiping out all assets of a defendant completely, based on the alleged conduct of other 

people. 

Such consequences of the bill are particularly unfair when one considers the myriad procedural safeguards that are missing from the bill, a subject to which I now 

turn. 

B. Procedural Unfairness in the Bill 

The bill sets an initial threshold standard to seize a person’s assets pre-conviction 

that could always be met by the prosecution. By its terms, the proposed bill would 

enable a prosecutor to show, ex parte and merely by ‘‘probable cause,’’ that a person, 

if convicted, would be ordered to satisfy an order of restitution for an offense punishable by imprisonment for more than one year. Section 202(a)(a)(1). This minimal 

‘‘showing’’ could always be satisfied by (a) reference to the indictment or criminal 

complaint—both of which conclusively establish probable cause—and (b) reading the 

statutory penalties for the offense. Moreover, the bill would forbid the district court 

from choosing in its discretion not to take action in favor of the prosecution, mandating that ‘‘the court . . . shall (i) enter a restraining order or injunction; (ii) require the execution of a satisfactory performance bond; or (iii) take any other action 

necessary to preserve the availability of any property traceable to the commission 

of the offense charged.’’ Section 202(a)(a)(1)(A) (emphasis added). 

Accordingly, without the benefits of the adversary system, without establishing a 

likelihood of success on the merits, and without any showing that a defendant is 

likely, probable, or even suspected to dissipate the assets to be restrained, the prosecution can freeze all assets that may be subject to restitution upon conviction. This 

standard is, bizarrely, far less than that required of civil litigants seeking to restrain assets pre-verdict. 

Making matters worse, this minimal prosecutorial ex parte threshold showing is 

combined with a dearth of any meaningful defense opportunity to challenge the ex parte seizure. The proposed defense standard is so restrictive, and has so many hurdles, that in effect once the prosecution has met its initial minimal showing, the restraint is final until the end of the criminal case. 

The bill provides that post-indictment a defendant may be granted a post-restraint hearing regarding the ex parte restraint order only if the defendant ‘‘establishes by a preponderance of the evidence that there are no assets, other than the 

restrained property, available to the defendant to retain counsel in the criminal case 

or to provide for a reasonable living allowance for the necessary expenses of the defendant and the defendant’s lawful dependents’’ and ‘‘makes a prima facie showing 

that there is bona fide reason to believe that the court’s ex parte finding of probable 

cause . . . was in error.’’ Section 202(a)(b)(2) (emphasis added). Even then, the bill 

does not require a hearing: the Court ‘‘may hold a hearing to determine whether 

there is probable cause to believe that the defendant, if convicted, will be ordered 

to satisfy an order of restitution for an offense punishable by imprisonment for more 

than one year, and that the seized or restrained property may be needed to satisfy 

such restitution order.’’ Section 202(a)(b)(3)(A) (emphasis added). During any such 

hearing, however, the defendant may not obtain disclosure of evidence or the identities of witnesses earlier than otherwise provided by existing law. Section 

202(a)(b)(5) (‘‘In any pretrial hearing on a protective order . . . [t]he court shall ensure that such hearings are not used to obtain disclosure of evidence or the identities of witnesses earlier than required by the Federal Rules of Criminal Procedure 

or other applicable law.’’). 

This standard is virtually insurmountable. First, a defendant has to have ‘‘no’’ assets left to pay counsel or to provide for ‘‘necessary’’ living expenses. A defendant 

with any assets to retain counsel or pay necessary expenses—even if clearly insufficient funds for either or both—could be found to fail this test. Second, and more imVerDate Aug 31 2005 10:57 Nov 26, 2008 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 H:\WORK\CRIME\040308\41580.000 HJUD1 PsN: DOUGA
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4 United States v. Stein, 435 F. Supp. 2d 330 (S.D.N.Y. 2006). District Judge Lewis Kaplan 

found that prosecutors had invoked the Department’s then-existing corporate charging guidelines, the Thompson Memorandum, at the very outset of its investigation to pressure KPMG to 

break its long-standing tradition of paying its employees’ legal fees. KPMG’s payment of legal 

fees was at the top of the prosecutors’ agenda from their very first discussions with KPMG, and 

the court found that the prosecutors had indicated that the government would not look favorably 

on the voluntary advancement of legal fees. Judge Kaplan concluded that by causing KPMG to 

cut off legal fees to employees, the Thompson Memorandum violated the Fifth Amendment’s due 

process clause and the Sixth Amendment right to counsel. 

portantly, even the defendant who is left completely indigent after the ex parte re- straint will not prevail in challenging the restraint. In order to obtain a hearing, 

the proposed bill requires in addition that the defendant establish that there is a 

bona fide reason for finding the restraint order to be in error. Given that the initial 

threshold standard that the prosecution has to meet is virtually automatic—and will 

certainly be met upon almost any indictment for an offense allowing restitution— 

this standard simply cannot be found by a court to be satisfied. Thus, even if the 

ex parte restraining order renders a defendant penniless to care for her family and 

to obtain even the most modest retained defense counsel, that defendant still cannot 

obtain relief. Finally, even, if a defendant surmounts these obstacles, a hearing is 

not guaranteed under the bill, and even if a hearing is afforded in the discretion 

of the court, at that hearing the defense is prohibited from having access to evidence 

or witnesses that it would not otherwise have under existing law. Given that under 

existing law, a defendant has minimal rights to discovery—and could never obtain 

a list of government witnesses at this stage of a criminal proceeding—the muchfought for hearing would be all but illusory. 

C. IMPACT ON THE DEBATE REGARDING THE MCNULTY MEMORANDUM

The proposed bill could also serve, perhaps unintentionally, as an end run around 

the protections of the Department of Justice’s (‘‘DOJ’’) McNulty Memorandum. That 

Memorandum, issued by DOJ in December 2006 to forestall legislation that would 

have had more far-reaching consequences, placed severe restrictions on when the 

government could consider whether a corporation is paying fees for its employees. 

The Memorandum basically prohibited DOJ from weighing in on that private decision in all but the rarest case. The Memorandum also placed limits on when DOJ 

is supposed to request a waiver of the attorney-client privilege. 

The proposed bill jeopardizes the effectiveness of these provisions. First, because 

the bill would enable DOJ in myriad corporate criminal investigations to obtain 

sweeping ex parte restraint orders against a company, it could render it virtually 

impossible for a company to pay legal fees for its employees. In other words, the 

Department would not have to weigh in on what the company intended to do regarding the payments of fees, as it was found for instance to have done in the socalled KPMG case.4 Instead, DOJ could engage in self-help, and simply freeze all 

of a company’s available assets ex parte that may be needed to pay restitution. In 

large corporate cases, such as KPMG, or Enron, Tyco or WorldCom, that enormous 

power would be palpable. 

Second, by causing a seismic shift in the already disproportionate power of the 

prosecution in corporate cases, any company subject to an ex parte asset restraint 

would waive any and all rights in order to survive such a freeze. The current congressional interest in legislative responses to the McNulty Memorandum would be 

rendered meaningless. Once prosecutors have the power to seek control of all or a 

significant portion of a corporation’s assets pre-conviction and ex parte, the corporation will take any steps to have the government avoid that result or remove that 

restraint. Thus, the proposed bill, by giving unprecedented powers to the prosecutor 

before a defendant is convicted or even indicted, tips the scale dramatically and unfairly in the government’s favor. 

D. DISREGARD OF CURRENT PROSECUTORIAL POWERS

The proposed bill fails to recognize the existing tools prosecutors possess for restraining assets in order to preserve them for restitution. 

Current forfeiture law assists those wrongfully deprived of their property in obtaining it via the government’s forfeiture tools. Many federal statutes contain explicit provisions allowing property owners to make claims on forfeited assets before 

they are obtained by the prosecution. In that sense, restitution aims are achieved 

through the traditional means of freezing and seizing tainted assets. Moreover, by 

statute, the Attorney General’s ability to enforce restitution awards is linked to its 

forfeiture tools. Under 21 U.S.C. § 853(i)(1), the Attorney General is authorized to 

‘‘grant petitions for mitigation or remission of forfeiture, restore forfeited property 

51 

5One Circuit permits the pre-trial restraint of substitute assets, see In re Billman, 915 F.2d 

916 (4th Cir. 1990), but that view is not shared by other Circuits. 

to victims of a violation of this title, or take any other action to protect the rights 

of innocent persons which is in the interest of justice and which is not inconsistent 

with the provisions of this section.’’ The Attorney General may also direct the sale 

of property ordered forfeited and direct the disposition of those funds, as well as to 

‘‘take appropriate measures necessary to safeguard and maintain property ordered 

forfeited under this section pending its disposition.’’ 21 U.S.C. § 853(i)(5). 

Importantly, both the federal RICO statute, 18 U.S.C. § 1963(m), and the federal 

criminal forfeiture statute, 21 U.S.C. 853(p), permit the government to obtain the 

forfeiture of substitute assets post-conviction,5 when the defendant transferred the 

tainted property to a third party, placed the property beyond the court’s jurisdiction, 

has been commingled with other property which cannot be divided without difficulty, or has been substantially diminished in value. Attempting to frustrate the 

government’s effort to forfeit property has been held to be punishable as obstruction 

of justice. See United States v. Baker, 227 F.3d 955 (7th Cir. 2000). This is a significant weapon in the government’s arsenal, because it ensures that guilty defendants 

cannot put forfeitable property or funds beyond the government’s grasp. In short, 

current law satisfies the government’s need to obtain property without giving the 

prosecutor the power to freeze any and all assets held by a corporation or an individual. 

Finally, there is scant evidence that the large amount of uncollected restitution 

payments—cited as a reason for the proposed bill—is a result of defendants’ improperly dissipating assets pre-conviction. An equally plausible reason for the growing 

size of uncollected restitution orders is that courts are currently required to enter 

such orders regardless of a defendant’s ability to pay, and thus impose large restitution orders but set reasonable payment schedules. That scheme, which currently 

governs restitution orders, would of course result in what currently appears to be 

a large unpaid restitution bill, when in reality it may bear no resemblance to a defendant’s avoiding restitution payments at all. In short, the proposed bill may be 

seeking to remedy a problem that does not exist, and does so by a means that fails 

to accord procedural safeguards to protect the public. 

Thank you for the opportunity to testify. 

52 

Mr. SCOTT. Thank you. 

Mr. Smith? 

TESTIMONY OF DAVID B. SMITH, ESQUIRE, ENGLISH & SMITH, 

ALEXANDRIA, VA 

Mr. SMITH. Good afternoon, Mr. Chairman and distinguished 

Members of the Committee. 

Much of what I was going to say in my opening statement has 

been already said by my distinguished colleagues at this table. And 

I really thank them for the excellent job that they have obviously 

done. I didn’t get a chance to read their submissions before I came 

here, but I see that they are excellent. 

I am a leading authority on forfeiture, and I am the author of 

a two-volume Matthew Bender Treatise on the subject which also 

covers restitution law. And I have served, for a couple of decades 

now, as co-chair of the Forfeiture Abuse Task Force for the National Association of Criminal Defense Lawyers. And I helped the 

House Judiciary Committee and the Senate Judiciary Committee 

draft the Civil Asset Forfeiture Reform Act of 2000, which many 

of you on this Committee fought for, and it was a big victory for 

the reformers. 

I have been asked to address the pre-trial asset restraint provision of these bills, but I would like to make it clear that my concerns about these bills are not limited to that provision. I agree 

with the points made in the excellent letter filed by Thomas Hillier 

on behalf of the public defender community, which I did get a 

chance to read, and I wish I had time to address those issues as 

well. But I think the other folks here, as well as myself, have focused on what we think is the most serious problem of all in this 

bill, or these bills, and that is the pre-trial asset restraining provision. 

Basically, we don’t need a pre-trial asset restraining provision 

specifically directed toward restitution. And that is because the 

courts already have the power to freeze forfeitable assets prior to 

trial, under the forfeiture statutes. And once forfeited, those assets 

are normally turned over to crime victims to compensate them for 

their losses. 

Whether this is called restitution or restoration of the proceeds 

of crime to the victims, which is another way that the Justice Department styles it, doesn’t really matter. The money gets back to 

the victims already. That is the policy of the Department of Justice—that is, to compensate crime victims out of forfeited funds. 

So the only thing that these new restitution bills actually add to 

the picture is an unfair and totally ill-conceived provision allowing 

the court to freeze legitimate assets—that is, clean funds, not tainted by association with any crime—for the purpose of increasing the 

amount of money available for restitution, if that was ordered at 

the end of the day by the court. 

Now, there are better ways to do this than a provision which 

trenches so heavily on the sixth amendment right to counsel of 

choice and the basic assumptions of our adversary system of justice. And one of those better ways, or two of them, I’ve suggested 

in my statement, and that is to take money that is now earmarked 

for law enforcement purposes, and instead of putting it in a forVerDate Aug 31 2005 10:57 Nov 26, 2008 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040308\41580.000 HJUD1 PsN: DOUGA
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feiture fund, which is used to buy police cruisers and to pay the 

salaries of sheriffs’ departments and so forth. Why not useg those 

funds exclusively to make restitution to victims? 

That proposal is actually consistent with the Justice Department’s supposed policy of favoring restitution to victims over other 

uses for forfeiture funds. The problem is that that policy is not always followed in the field by Department prosecutors, who have 

other constituencies, let’s put it that way. They want to keep the 

State and local folks happy, who assisted in the prosecution, by giving them a portion of the money to fund their own law enforcement 

budgets. And so you can understand why they are pulled in different directions. 

But Congress has the power to make a decision to direct these 

funds to the place where they are most needed, and that is for restitution to the victims. And I suggest that that is a far better way 

to go about increasing the funds available for restitution than the 

idea of freezing every defendant’s assets prior to trial. 

I would also say that Senator Dorgan made the point that there 

are some rich defendants who will fraudulently transfer funds to 

their wives, to others, in order to avoid restitution and other penalties. Well, Congressman Johnson was quite correct to point out 

that current law allows the Government to set aside those fraudulent transfers under State and Federal fraudulent transfer statutes. And they do do that, and they should do that, where a significant amount of money is involved. 

And another way that the Government can prevent such fraudulent transfers before they even occur is to prohibit them as a condition of bail. And that is done in quite a few cases involving rich 

defendants. I am thinking of one in particular, which I am involved 

in right now, where exactly that was done, 

So, you know, the court has a lot of control over a defendant’s 

handling of his assets through the court’s power to set bail conditions. That same power has been used to force defendants to repatriate assets from abroad which have been transferred there. And 

so the court has already got considerable flexibility and power over 

a defendant’s ability to transfer assets improperly to avoid restitution and other penalties. So I just don’t think this provision is 

needed, and it is certainly not worth the candle, as I put it. 

It gives prosecutors a nuclear weapon with which to pauperize 

every single defendant, and abuse it they will. We know that from 

experience in the forfeiture area. When prosecutors are allowed to 

seize substitute assets, as they have been in the 4th Circuit unfortunately, they have done so repeatedly in an effort to force a defendant to be represented by the public defender, which is not adequate in a complicated white-collar case, and thereby force them to 

plead guilty rather than go to trial. And I can cite you chapter and 

verse on that later on. 

Thank you very much. I see my time is up. 

[The prepared statement of Mr. Smith follows:] 

54 

PREPARED STATEMENT OF DAVID B. SMITH


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Mr. SCOTT. Thank you. 

Judge Cassell? 

TESTIMONY OF PAUL G. CASSELL, PROFESSOR, S.J. QUINNEY 

COLLEGE OF LAW, UNIVERSITY OF UTAH, SALT LAKE CITY, UT 

Mr. CASSELL. Chairman Scott and distinguished Members of the 

Subcommittee, I am pleased to be here today to testify in support 

of improving our Nation’s restitution statutes. 

If there is one aspect of criminal justice policy which is uncontroversial, it is the idea that a criminal who causes a loss to a victim 

ought to have to pay that loss back to the victim. Congress repeatedly has adopted this principle, and, most recently, it has been 

mentioned in the Crime Victims’ Rights Act, which was passed just 

a couple of years ago. 

Unfortunately, however, that goal of requiring criminals to pay 

back losses to victims is not being achieved. And I would like to 

recommend four specific reforms to our Federal restitution statutes. 

First, Federal judges should be given the authority to award restitution for all losses suffered by crime victims, not just narrow categories of losses. Right now, the main restitution statutes limit a 

judge’s power to award restitution to lost property, medical expenses, lost income, funeral expenses, and costs of participating in 

the investigation. There is no general authorization for restitution, 

with the result that when judges make a discretionary decision, 

such as Professor Turley has talked about, to award restitution, all 

too frequently the appellate courts have been forced to overturn 

those decisions, because the statutes do not support the award. 

For example, in United States v. Reed, the 9th Circuit was forced 

to overturn a restitution award to victims whose cars were damaged when an armed felon fled police, because they were not damaged by the crime of a felon being in possession of a firearm. 

In the United States v. Blake, the 4th Circuit was forced to overturn a District Court order for restitution for victims who had had 

their credit cards stolen and charges run up on those cards because 

the crime of theft of the credit card is not the same as the crime 

of spending money on the credit card. The 4th Circuit said its decision represented, quote, ‘‘poor sentencing policy,’’ but the law did 

not permit such an award. 

The law should be changed. As the U.S. Judicial Conference has 

recently recommended, Federal judges should be given discretionary authority to award restitution when it is just and proper 

under the circumstances of the case. 

Second, Federal judges should be given the power to award restitution for all Federal crimes, not just those that happened to be 

listed in title 18 of the U.S. Code. An illustration of the problem 

comes from United States v. Elias. There, the defendants sent two 

young men with no protective equipment into a tank to clean out 

toxic waste. While working in the tank, one of the men was overcome by toxic fumes, and he sustained very serious permanent 

brain damage that will require expensive medical treatment for the 

rest of his life. 

Again, the district judge exercised discretion and concluded that 

a $6.3 million restitution award was appropriate, but the 9th Circuit was forced to overturn the award. Why? Because environVerDate Aug 31 2005 10:57 Nov 26, 2008 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040308\41580.000 HJUD1 PsN: DOUGA
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mental offenses are listed in title 42 of the U.S. Code, not title 18 

for which restitution is authorized. This makes no sense, and Congress should give judges authority to award restitution for all Federal crimes. 

Third, judges should be given discretionary authority to restrain 

defendants from dissipating assets that could be used to satisfy a 

restitution award. And here I must, with all respect, disagree with 

Mr. Weissmann who has simply misdescribed the bills that are in 

front of this Committee. The bills do not authorize the seizure of 

assets. They simply authorize the judge, if the judge finds it appropriate, to restrain transference of the assets. 

So if the defendant wants to continue to live in his million dollar 

home, he is entitled to do that under these bills. But the bills 

would also authorize the judge to forbid the defendant from transferring that home to his wife or something like that that could preclude enforcement of restitution. The General Accounting Office 

has found that this is a serious problem and that assets acquired 

illegally are often rapidly depleted on intangible and excessive lifestyle expenses. There is no justification for letting a Federal criminal steal money from a victim and then use that money to live the 

high life before a final conviction could be obtained. 

Federal judges should be given the authority on application from 

prosecutors to restrain a defendant from dissipating assets that 

could be used to satisfy a restitution award. Of course such authority should include appropriate procedural protections for defendants and innocent third parties. And the proposed bills in front of 

this Committee do that. They would allow a restraining order only 

on a finding of probable cause and then only for assets that would 

be necessary for restitution and defendants can obtain expenses for 

living expenses or to pay legal counsel. 

The provisions of the Act are modeled on a forfeiture provision 

that has been upheld by the United States Supreme Court. Crime 

victims deserve the same kinds of protections when prosecutors are 

trying to get assets for them as the Federal Government can use 

when it is trying to forfeit assets to the U.S. Government. 

Finally, Congress should also repeal the abatement ab initio doctrine, which prevents a restitution award from being entered when 

a convicted defendant dies before his appeals are final. Again, this 

problem might be well highlighted by the case that I believe Mr. 

Weissmann worked on. In the case of United States versus Kenneth Lay, there was a 16-week jury trial after which Mr. Lay was 

convicted of massive securities frauds involving Enron. However, 

he died before the sentencing hearing. And as a result, the district 

judge was prevented from entering a $43 million restitution award 

that would have gone to the victims of that crime. 

The statute should be changed. Right now the statutes do not 

allow a judge to award restitution unless the defendant has finally 

exhausted all of his appeals. We should change the law to allow the 

judge to impose the restitution order and then let the defendants 

pursue any appeals that might be appropriate. 

So in sum, I think the issues that are in front of this Subcommittee are very simple. When a criminal causes a loss to a victim, the criminal should be ordered to pay the victim for that loss. 

I urge the Committee to move forward on the legislation in front 

71 

of it, which would help to implement this principle in our Nation’s 

Federal criminal justice system. 

[The prepared statement of Mr. Cassell follows:] 

PREPARED STATEMENT OF PAUL G. CASSELL


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Mr. SCOTT. Thank you very much, professor. I recognize myself 

for 5 minutes of questions. And in follow up, Judge Cassell, as I 

understand your testimony, you want the judge on a case-by-case 

basis to make these decisions not at automatic pretrial in every 

case? 

Mr. CASSELL. I think it depends on what we are talking about. 

But in general, the bills that are in front of the Committee would 

authorize discretionary decisions by judges to create more restitution opportunities. 

Mr. SCOTT. Mr. Weissmann, your reading of the case, if the U.S. 

attorney has probable cause of a case, can they get order—does a 

judge have to enter an order freezing assets? 

Mr. WEISSMANN. Under the language of the bill, yes, the judge 

has very limited discretion. They have to—— 

Mr. SCOTT. What discretion? 

Mr. WEISSMANN. First if the showing is made that there is an indictment and that that statute—— 

Mr. SCOTT. Wait a minute. No indictment. Pre-indictment. 

Mr. WEISSMANN. Okay. If there is pre-indictment, the judge has 

to make the finding of probable cause. But if there is probable 

cause for a crime for which restitution is a penalty, then there is 

no discretion. 

Mr. SCOTT. He has to enter the order at the request of the U.S. 

attorney upon probable cause to freeze enough assets to satisfy any 

potential restitution? 

Mr. WEISSMANN. Yes. And it can cover any assets that may be 

necessary. 

Mr. SCOTT. And this is not just fruits of the crime asset, any assets? 

Mr. WEISSMANN. That is right. Unlike the current rule with respect to forfeiture, where it only covers tainted asset this is for any 

assets. 

Mr. SCOTT. One of the problems with the criminal justice system 

is that the same system applies to those that are guilty and those 

that are innocent, it would be nice to have one set, kind of streamline set for those we know are guilty and another more burdensome 

process conviction for those who are innocent. Unfortunately, everybody has to go down the same highway. Now, if you are factually innocent of the charge and they come in with probable cause, 

do your assets get freezed? 

Mr. WEISSMANN. Yes. 

Mr. SCOTT. When do you have an opportunity to present your 

evidence of innocence? 

Mr. WEISSMANN. Under this bill, it is hard for me to divine a circumstance where a defendant would have the opportunity in your 

hypothetical to have a hearing because if there is—a probable 

cause determination by the court, whether it is pre- or post indictment and it is for a crime for which restitution is available, then 

it is impossible for that defendant to make a showing that there 

is a bona fide reason to believe that there was error at the time 

of the ex parte order, which is a requirement in order for the hearing to be available. The court has no discretion. 

118 

Mr. SCOTT. Professor Turley, do you see the same result? If you 

are factually innocent, when do you get an opportunity to reopen 

your bank account? 

Mr. TURLEY. Well, on the ex parte, you get 10 days on the ex 

parte and then you can request a hearing. But the problem with 

the standards is we are talking probable cause that this is a crime 

if proven that you would have to pay forfeiture. But the bills, at 

least one of them, would make all crimes subject to forfeiture. So 

the standard is somewhat misleading because it is almost impossible to miss that target. 

So when you finally get up in front of a hearing, you have got 

very little basis under these laws to say you shouldn’t seize my assets. One possibility would be instead of making all of these laws 

subject to forfeiture, it is one of the other two that simply extends 

it to six more laws, and you could argue that this isn’t a law that 

is subject to assets being frozen. But it is a hearing that begins 

with an ex parte filing which obviously you have no role—— 

Mr. SCOTT. And if you have outstanding checks and they start 

bouncing, when can you get access to your checking account again? 

Mr. TURLEY. It is even worse—— 

Mr. SCOTT. There is notice, right? 

Mr. TURLEY. Yeah, it is even worse. I mean, as a criminal defense attorney, I can tell you the most important part of a case, in 

my view, is pre-indictment. It is when you know your person is a 

target, you have got a lot of work to do. They need counsel. That 

is probably when they are most vulnerable. But at that very moment, their assets can be frozen. They will have a hard time getting an attorney. But they are supposed to get an attorney in order 

to contest the fact that they have no money to hire an attorney. 

Now, the reason they will have no money is since you are expanding the definition of victims and because we still have the 

original indictment, maybe a superseding indictment with maybe a 

larger number of accounts if a judge is looking at that, she is going 

to say, well, here is 20 counts which may or may not be the ones 

at trial. 

On those 20 counts, there is an expanded number of victims now, 

each of which can seek your assets. You know, a blind squirrel 

would find that nut as a prosecutor. It would be hard not to get 

100 percent of assets on that standard. 

Mr. SCOTT. Thank you. The gentleman from Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. I do appreciate y’all’s 

testimony. And by the way, Professor Turley, I guess this is the 

first time I have seen you since the Supreme Court’s recent decision about which you testified earlier. I would say congratulations 

on being right, but I knew you were right before. I would say congratulations, the Supreme Court got it right. 

Mr. TURLEY. God bless you. 

Mr. GOHMERT. And there is so much confusion as to what that 

really meant and nobody is trying to protect anybody that is a 

criminal. They are just trying to preserve the Constitution. And I 

appreciate the points that people here have made about their concerns in this bill. And I have not read the bill in full. I guarantee 

you I will before you know we were to take it up in mark up. But 

I can see like on preservation of assets for restitution, this just 

119 

says on the government’s ex parte application and a finding of probable cause that the defendant, if convicted, will be ordered to pay 

an approximate amount of restitution for an offense, then you could 

enter these orders and immediately I am going wait a minute, that 

might be real easy to say, well, yeah, if he is convicted then he is 

going to certainly have to pay restitution. 

So there is your finding and it doesn’t have a requirement that 

probable cause be found that he committed the offense. So I can see 

a number of things that need to be worked on here. But I am curious about some other things that have been brought up. For example, yeah, there is a potential set-aside of fraudulent transfers, and 

I am just trying to think out loud based on some of the things that 

have been said. But what about a provision that basically provided 

for a set-aside with a presumption that if a transfer is made—and 

again, I am just thinking out loud here—presumption that if a 

transfer is made after the time someone has been named a target 

and up until so many months, 6 months or something after conviction, that there is a presumption that was a fraudulent transfer so 

the burden is not there. Or if it is a purchase. Because it is not 

always a transfer as you all know. 

I mean, sometimes you buy an asset that you can hide somewhere, or perhaps stick it in some purchase. But if you had a presumption that was a fraudulent purchase, then maybe you would 

have a set aside of not just transfers but purchases, boy, it would 

put people on notice that if somebody is named a target, you better 

feel real comfortable before you make the sale or make the buy 

that this may not be set aside later on. 

Anyway, I am wondering if something like that might be of assistance. But Judge Cassell, you made some excellent recommendations and some good points, and I will need to do more looking to 

make sure that we adequately address the things that you brought 

up. 

But Professor Turley, you mentioned it reduces the discretion for 

the judge and we shouldn’t take away all discretion, it would extend litigation and we have got dockets getting longer. Of course 

I fought with my colleagues over the patent law venue because we 

had some venues where they were getting to trial in 18 months, 

like in the Eastern District of Texas. But that is horrible because 

we need it in jurisdictions where we can have 4 or 5 years to drag 

them out. Go figure. But anyway, one of the things that has 

amazed me is I remember back in the early ’80’s when the sentencing guidelines came in and the Federal judges, you know, were 

furious that you took away—the Congress took away all of that discretion and when within a matter of 20 years, now they say, you 

know what, it makes it easier because as a judge, some of my 

toughest decisions were what to do on sentencing because I had 

tremendously broad discretion. 

But anyway, it seems like some have not minded having discretion taken away. I don’t want to see discretion taken away from the 

courts. I would not want to see anything mandatory, but I sure 

would like them to have the tools in the appropriate cases. So anyway, can I get comments on the possibility of a presumption of 

fraudulent transfer or purchase, Professor Turley? 

120 

Mr. TURLEY. First of all, it is, once again, an honor to appear before you. You are unique in that you have played a role in both the 

judicial and legislative branch, which makes your service on this 

Committee so valuable. And I actually was thinking along the 

same lines in terms of what this body could do to give courts not 

less discretion but simply more ability to use that discretion. And 

actually a thing I was thinking of was that we could look at—or 

actually you could look at the possibility of—— 

Mr. GOHMERT. We is okay. We welcome your input. 

Mr. TURLEY. Look at the possibility of having a more systemic 

approach to an early identification of assets of targets, where the 

prosecutors can come in and require the court to make a determination of asset worth, asset locations and to put that into a court 

order. Because what you are speaking of in terms of presumption 

is it actually achieves the same thing. That if a court comes in and 

says, look, we have identified this as a possibility for fraudulent 

transfer, and we have a serious question about restitution for victims because of the size of these allegations, you could have them 

come in and say I want an identification, a sworn identification of 

all assets. 

Their identification, their amounts, joint bank accounts and to 

put that into an order and to say that if there is transfers from 

here, we are going to look at whether there is a fraudulent effort. 

And you can also ask for the court to be informed of any large 

transfers off that base. So the court will have a chance to monitor 

it and so will the prosecutors without freezing the assets but can— 

and then if there is a violation—if you go and you submit that information to the court and there is any hidden assets or any transfers without informing the court, you would be in contempt, which 

would be even better than a presumption. You know, those are possibilities that I think that the Committee could look at. 

Mr. GOHMERT. Could I get one more comment from Judge Cassell 

on that issue? What do you think about that? 

Mr. CASSELL. I think certainly a step forward is better than no 

step at all. But the problem is that this presumption of transfer 

isn’t going to apply in many of the situations where the problems 

are most serious. We heard from Senator Dorgan about the problems of somebody taking a trip to Europe or something like that. 

Of course, some presumption against transfers isn’t going to get 

money back on plane tickets or hotel rooms or jewelry or whatever 

it is that has been spent out there that has come and gone. So that 

is why more comprehensive authority needs to be given to judges 

to address this problem. 

Mr. GOHMERT. Thank you. Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. The gentleman from Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman. With the chart—they 

say that a picture is worth a thousand words and the chart was 

a wonderful picture of, I believe, a big mansion and the white sand 

dunes of a far away beach in an exotic local and maybe an exotic 

automobile or something like that, the rich and famous. And that 

is the real target of this—of these pieces of legislation, isn’t it? I 

will ask you Professor Cassell; isn’t that correct? 

Mr. CASSELL. I think that is certainly the most serious problem. 

I don’t think prosecutors are going to try to get a restraining order 

121 

to prevent somebody from spending $500 on something. As a practical matter, you are exactly right. 

Mr. JOHNSON. But yet under all three proposals, isn’t it a fact 

that the prosecutor would indeed have that power over a blue collar or a no-collar criminal defendant with little or nor assets? 

Mr. CASSELL. Certainly it’s the case, whenever there is a crime 

committed, that prosecutors would have the power to use the tools 

in this bill to protect assets. And let’s remember, it is not just— 

I think sometimes the mistake is to think about low income criminals—and there are certainly low income criminals—but who are 

they victimizing? Low income victims because typically crimes are 

committed among the same social class, many crimes are interracial for example. 

So I think it is a mistake to focus just on the criminal half of 

the equation and forget about the victim half of the equation. 

Mr. JOHNSON. When we are talking about restitution, though, we 

are talking about that coming from the defendant and we are talking about expanding the number of people who would be entitled 

to restitution under these pieces of legislation. And given that fact, 

Professor Cassell, I would like to do something that I have always 

wanted to do ever since law school, and that is to pose a hypothetical to a law professor. 

Professor, I would like for you to assume that a man is convicted 

of conspiracy to distribute marijuana, and I want you to further assume that a girlfriend of a man who purchased marijuana from the 

defendant claims to be a victim and to have suffered loss because 

her boyfriend became abusive to her as a result of smoking the 

marijuana. I want to ask you now, under existing law, this victim, 

the female, would not be entitled to restitution, correct? 

Mr. CASSELL. Correct. 

Mr. JOHNSON. And assuming that she could prove her claim 

under this new law, should it pass or any of these three proposals 

should they pass, she would be entitled to restitution; isn’t that 

correct? 

Mr. CASSELL. I don’t think the laws change the definition of victim that broadly. You are talking about—— 

Mr. JOHNSON. Okay. Let me ask whether or not anyone would 

disagree with that on the panel. 

Mr. TURLEY. I am afraid I would disagree. I mean, the hypothetical is less than a hypothetical because it is the facts from the 

Sharp case, I believe. And in the Sharp case, Professor Nowicki, 

who now teaches at Tulane, was the person asking for precisely 

that type of victim status. And indeed, the court said that it did 

not meet the standard of being directly and proximately harmed 

under the definition of victims. The definition of victims under 

these laws are exceptionally broad. I must disagree with the suggestion that it is a close matter. 

In my view, they are almost without limitation when you talk 

about identifiable person or entity that suffer pecuniary loss is 

one—I reference. I can’t see the significant limitations of that definition, and I certainly can’t see why the Sharp case would not have 

fallen within it. 

Mr. JOHNSON. Thank you, Professor. Mr. Weissmann. 

122 

Mr. WEISSMANN. I agree with that. Once you take out the words 

direct and proximate, you are going to have significant issues facing the courts as to who a victim is in any particular case. 

Mr. JOHNSON. And Mr. Smith? 

Mr. SMITH. I would agree with these gentlemen, but I think it 

could be argued either way. I will concede that. But it shouldn’t be 

argued either way. I mean, to me there is no way that that lady 

should be able to get status as a victim. And remember there is 

a—— 

Mr. JOHNSON. Under current law or under the new law? 

Mr. SMITH. Under the new law, it could be argued either way. 

And that just goes too far. Remember, there is also provisions in 

all of these bills that the defendant has to pay the victim’s attorneys as well for their representation. And to me that is another terribly ill-conceived provision which is just going to get the courts 

bogged down in endless battles over attorney fees, whether you are 

entitled to them and whether the fees are reasonable. 

And again, you know, as you said, Congressman, we are talking 

about, you know, the Federal system here where 85 percent of the 

defendants are already deemed indigent and represented by public 

defenders. And the most important point about this entire bill is 

that you are going to take the remaining 15 percent and put them 

into the public defender system as well because, you know, this bill 

will make every defendant subject to being pauperized at the whim 

of any prosecutor. And if that is not done, that is because the prosecutor was a nice guy and he exercised restraint. And there are 

still good prosecutors around. 

But the problem is you don’t want to give this nuclear weapon 

to every single line prosecutor with no supervision by higher-ups 

and that is the case in today’s Justice Department. There is no supervision by higher-ups. You can’t complain to anybody up the 

chain and expect to get the AUSA’s decision reversed on anything. 

So it is insane to give this much discretion to every prosecutor. 

And that is what you are being asked to do. And it is just—to me 

this is not even—you know, this is not something that reasonable 

people can differ about. It is just shockingly bad legislation, which 

has the potential—the very likely potential to undermine the entire 

criminal justice system that we have come to know and respect 

over centuries. 

Mr. JOHNSON. Thank you. 

Mr. CASSELL. Could I exercise a point of personal privilege? Because I guess I have just been called an unreasonable person here. 

This legislation doesn’t give any power to prosecutors to do anything other than make applications to judges who in the proper circumstances can then issue appropriate orders. If prosecutors are 

making outlandish requests, judges won’t grant them. 

Mr. SMITH. But those requests are not going to be outlandish 

under this legislation, because they are going to be authorized. 

And, in fact, as was said by my colleagues at this side of the table, 

the judge will be forced to grant these restraint orders because he 

is not given discretion once the prosecutor makes the probable 

cause showing, which is very easy to do. 

Mr. JOHNSON. So whether or not to do this or not vests the discretion into the hands of the prosecutor as opposed to the judge? 

123 

Mr. SMITH. Exactly. And that is just what was wrong our sentencing system before Booker, which probably Judge Cassell would 

be the first one to agree with me about invest the discretion in the 

hands of the prosecutors and not the judge. And the prosecutor was 

really calling the shots about sentencing, not judges. And by the 

way, even if you do vest discretion in the hands of the judge, I am 

sorry, but I don’t have great faith in the average Federal judge to 

get it right because, you know, based on my experience for 30 

years, I have just seen too many judges act as rubber stamps, particularly in ex parte proceedings where—you know, where even the 

best of judges unfortunately has to rely on everything that the 

prosecutor or the case agent tells them because it is an ex parte 

proceeding. 

The problem with these proceedings is the defense doesn’t even 

get to know what the basis for the ex parte order is. This is all done 

in secret and it is sealed. You don’t have any right to see what the 

basis was for that ex parte restraint order that was entered, so how 

do you challenge it? It makes it very difficult to challenge if you 

don’t even know what the factual basis for the order was. 

Mr. JOHNSON. Thank you. 

Mr. SCOTT. The gentleman’s time has expired. The gentleman 

from Ohio. 

Mr. CHABOT. I thank the gentleman for yielding. You just indicated that you had little or no faith in the Federal judges to set 

the bond and get this right—excuse me—not set the bond—but set 

this right relative to this issue. But what is your position on 

whether the judges should have the discretion in criminal sentencing? 

Mr. SMITH. I am all in favor of that because look, it is not an 

ex parte proceeding. 

Mr. CHABOT. So judges can get it right on the one but not the 

other? 

Mr. SMITH. Yes. I think judges for the most part—as was said 

before, you know, we have a very good Federal bench. If they are 

given all the facts, they can get it right. But when they are only 

given a one-sided presentation of the facts and then the other side 

is then barred from even seeing what the presentation was—— 

Mr. CHABOT. Let me get on to my next question. I have only a 

limited amount of time. Let me ask each of the witnesses, and I 

will start with you, Professor, if I can. Relative to victims rights, 

especially as it relates to restitution, do you think that the Federal—at this time, the Federal laws relative to restitution are sufficient or do you think that they should be strengthened with respect 

to what victims can acquire? And If you could be relatively brief 

because I am going just go down the line. 

Mr. TURLEY. I would say it could be improved. We had an exchange. I think there might be some room for improvement, but not 

with the mandatory aspects. I think where the improvement needs 

to be is to ramp up the collection of restitution funds and I think 

that is where you will see the most result for victims. 

Mr. CHABOT. Mr. Weissmann? 

Mr. WEISSMANN. I agree with that. I think there are ways to improve what is going on. It can include having more people at DOJ. 

It can include having provisions in the bail statute to make it clear 

124 

that this can be one of the factors for bail assuming that it goes 

to risk of flight or dangerousness. You can expand the definition of 

victims as one of the proposals. I just think that the current bill 

is ill-advised because I don’t think it has the procedural protections 

for defendants that I think are necessary for due process. 

Mr. CHABOT. Mr. Smith? 

Mr. SMITH. The question is can we find ways to improve collection of—— 

Mr. CHABOT. Do you think that restitution at the Federal level 

is sufficient at this time or do you think there is room for improvements? 

Mr. SMITH. Oh, I definitely think there is room for improvement 

and I have suggested a couple of ways in which it could be improved. And I think the Committee’s staff suggested another way 

which hasn’t been talked about here. And that is on the idea of 

making—setting up a restitution fund. I think the Chairman talked 

about this in his opening statement, set up a restitution fund 

where all the restitution money and maybe funds from fines or forfeitures can also go and then it is sort of like an insurance pool. 

The victims in one particular case wouldn’t be dependent on making a recovery from that defendant. 

Instead they could share in the restitution monies that had been 

collected in this entire restitution fund so that it wouldn’t be haphazard. Victims in one case may get 100 percent restitution and in 

another case because the government wasn’t able to recover anything maybe because the defendant was indigent, the victims get 

nothing. So it is a way of evening out the benefits to the victims 

and I think that is an excellent proposal. 

Mr. CHABOT. Thank you. Judge Cassell. 

Mr. CASSELL. There are ways we could improve the restitution 

laws. And unfortunately at hearings like this, we focus on the 10 

percent that is controversial, not the 90 percent that is 

uncontroversial. The Justice Department testimony, for example, 

lists a whole range of things that I think just about everyone in 

this room could agree with, like putting together a check list for 

judges on what should be ordered, giving Federal prosecutors access to information that the probation office has about the finances 

of a defendant, extending terms of supervised release to collect restitution and the list goes on and on. 

Nobody has offered any objection to any of those things. So I 

hope the Subcommittee will take those noncontroversial parts of 

the bill and move forward on that regardless of what it chooses to 

do on the other pieces of it. 

Mr. CHABOT. Let me follow up if I can, Professor Cassell. This 

was described as going to undermine the criminal justice system 

and being shocking and that type of thing. Could you—getting back 

to what actually happens here, we are talking about having a probable cause hearing in which there is a judge that ultimately makes 

the decision. Whether or not we have great faith in those Federal 

judges, there is going to be a hearing before a judge before any of 

this occurs. Is that not correct? And also, what about this issue 

about whether or not the defendant is likely to not have any funds 

available to him or her in order to acquire counsel? As a practical 

125 

matter, you know, what is likely to happen under those circumstances? 

Mr. CASSELL. Right. Well, I guess maybe I am a bit biased on 

this. I got a chance to work with Federal judges for 5 years while 

I was serving as a Federal district court judge in Utah and I think 

I have great confidence that the men and women that serve on the 

Federal bench around this country will take the provisions of this 

bill, if it becomes law, and apply it in a fair and appropriate way. 

They are going to look at situations like the one you describe. And 

if there is an asset freezing provision that is in place, they are then 

going to look and see whether the defendant can make a showing 

that funds really are needed to retain counsel. 

And if so, the bill authorizes release of those funds if the other 

conditions are met in order to secure counsel. So this isn’t going to 

be a situation where someone isn’t able to hire a lawyer because 

of the fact that there has been an asset freezing provision entered. 

Mr. CHABOT. As Senator Dorgan described before, if the defendant is talking about taking expensive trips to Europe or putting 

money in trust accounts or starting new businesses to the detriment of the victims, those are the types of things that the judge 

is not likely to allow; is that correct? 

Mr. CASSELL. I think that is exactly right. I guess one of the 

things I am a little bit disappointed about when I hear some of the 

opposition testimony is they will find one word in the bill and they 

will say this word is unclear. And it may be there are some words 

that are unclear. But many of these things can be simplified very 

quickly with some drafting. And with as many smart people as 

there are on this panel, it is disappointing to me that they haven’t 

offered critiques of the language and suggestions in the language 

in order to fix it. I mean, Mr. Smith, Professor Turley, Mr. 

Weissmann, I think we could take all of their concerns that they 

have raised today and put a few tweaks into the bill and those 

problems would be completely eliminated. 

Mr. CHABOT. Thank you very much. Yield back. 

Mr. SCOTT. The gentleman from Alabama. 

Mr. DAVIS. Thank you, Mr. Chairman. Gentlemen, part of what 

strikes me as unusual about this legislation is that a lot of it involves restraints on the liberty of a defendant or a potential defendant. And I emphasize the word potential. Obviously, once 

someone is indicted, there are a variety of contexts on which we 

will allow restraints on their liberty. We will allow them, for example, to be detained upon a showing of flight risk or danger to the 

community, at least with certain classes of cases. 

We give the courts a fair amount of discretion and authority to 

restrain assets for defendants, people who have been indicted. 

What is unusual about this legislation is it its very sharp focus on 

people who are suspects, people who have not faced any determination of their guilt or innocence in court. 

Professor Turley, it has been 6 years since I walked in a courtroom and argued a case. So refresh me a little bit. My understanding of the law today is that for individuals pre-indictment, 

criminal forfeiture proceedings are still available; is that correct? 

Mr. TURLEY. That is correct. 

126 

Mr. DAVIS. What is the standard of proof in a criminal forfeiture 

proceeding pre-indictment? 

Mr. TURLEY. First of all, the current law gives the Federal judge 

the discretion to take steps to protect assets. And when it comes 

to forfeiture, it is a probable cause standard. But the judge actually 

has the ability to take steps today. We might create new ways that 

might help her do that. But the difference here is that it would be 

become a mandatory process effectively. 

Mr. DAVIS. Is there also one other distinction that the way the 

forfeiture law works today, you have to make an allegation that the 

proceeds are tainted in some way; is that correct? 

Mr. TURLEY. That is correct. And that is the big difference between restitution and forfeiture. When the Supreme Court said in 

its famous statement that you don’t have the right to use other 

people’s money, what they were saying was that a showing has 

been made that what you claim is yours is tainted by your crime. 

That is not what we are talking about with restitution. We are 

talking about stuff that is yours that you have to make people 

whole with. So it is a very different process. Because with forfeiture, you are talking about grabbing a boat that was used in a 

drug crime. 

Mr. DAVIS. Let me stop you for 1 second because our time is so 

limited. Judge Cassell, what I think Professor Turley has just said 

may be the most important distinction and one that needs to be underscored. It strikes me as being a very Draconian power to give 

the prosecutors—to allow them to say to someone who has not been 

indicted, someone who has not been bound over to a grand jury, 

someone who has not met any weighty standard of proof, that on 

a light showing of probable cause, we are going to take assets that 

may be lawful—that is not even part of the standard that they be 

unlawful—but we are going to infringe on your use of lawful assets 

because under the light standard of probable cause, you may owe 

damages to someone. That strikes me as pretty Draconian. And let 

me put the real world consequence around this. I agree with you 

that—because I was a prosecutor. The majority of prosecutors 

make reasonable, decent, prudent choices. A substantial number 

don’t. And it would seem to me that to give this new power to the 

government to use against a class of people who have not been indicted at all frankly becomes a very huge bargaining chip for a 

prosecutor. 

It, also as a practical matter, given that these are public hearings—I haven’t heard anything in these bills that suggest that 

these hearings would be private hearings, they wouldn’t be hearings available to the public. It would seem to me that if I were a 

prosecutor looking to pressure my defendant, going after that defendant’s assets pre-indictment might become a very good tool. Professor Turley, am I on to something with this idea that this becomes a major pressure lever for the government. 

Mr. TURLEY. I agree entirely. I have got to tell you, there will 

be many prosecutors who will drop the hammer on this as a point 

of pressure. 

Mr. DAVIS. And doesn’t this also become a way for a prosecutor 

to almost have a little pretrial, a way that in effect will say to the 

press, look, we are really closing in on this target, don’t have 

127 

enough yet for an indictment, don’t have enough for a criminal 

complaint, but I would like to do a little bit of discovery? So what 

I am going to do is, in effect, go after this person’s assets on a probable cause theory and that is the least weighty standard the judge 

ever has to apply. And I know that when the person gets his hearing to challenge that, my guys will get to cross-examine him. 

So I have almost got a little mini trial. Does that concern, Judge 

Cassell, the possibility of prosecutors using this to generate mini 

trials to conduct discovery? 

Mr. CASSELL. No, I don’t think it is going to create mini trials. 

And I guess one of the things that—— 

Mr. DAVIS. Why wouldn’t it? 

Mr. CASSELL. Well, one of the things to remember about this bill 

is it doesn’t take anyone’s assets away. It simply preserves those 

assets. 

Mr. DAVIS. But you have got to have a hearing. 

Mr. CASSELL. That is true. 

Mr. DAVIS. The defendant is entitled to contest that. There will 

be a public hearing, will there not? 

Mr. CASSELL. Yes. 

Mr. DAVIS. There will be an opportunity to cross-examine or to 

question the defendant’s witnesses because the defendant has got 

to make a showing. The defendant can’t sit silent, can he? 

Mr. CASSELL. No. 

Mr. DAVIS. So the defendant has got to make a showing. That 

means cross-examination, doesn’t it, Professor Turley? 

Mr. TURLEY. It does. And it is true it doesn’t take your assets 

away. But by freezing them, it is like saying we are not taking your 

house, you just can’t go inside. 

Mr. DAVIS. But, Judge, my point is by doing something to the defendant and making the defendant have to meet a burden to keep 

control of his assets, you have a hearing. The defendant has got to 

put some showing as a burden of production and persuasion. That 

subjects that defendant to cross-examination and to questioning. If 

I am a diligent, aggressive prosecutor, I would love to have been 

able to do that because it would give me a shot at free discovery. 

Do the other three of you gentlemen see my point about free discovery? 

Mr. CASSELL. You could bring the same defendant in right now, 

though, into the grand jury room and ask questions—— 

Mr. DAVIS. He could invoke his fifth amendment right. 

Mr. CASSELL. Or he could invoke his fifth amendment right if 

this hearing—— 

Mr. DAVIS. But that means he would be sacrificing his assets. He 

would be giving up his property or control of his property. 

Mr. CASSELL. And then I guess the one other point I would emphasize, Congressman, is you think the probable cause showing is 

some light showing. I think it is difficult to show that someone is 

probably a serious Federal criminal and probably has taken assets 

that should rightly go to a victim. 

Mr. DAVIS. We can argue about that. But if the Chair would indulge me to make one last quick point. I have another big broad 

concern, Judge. We struggle right now to collect restitution under 

the law that we have today. We have $46 billion unpaid Federal 

128 

restitution. And by the way, most of it is not owed by small fish; 

it is owed by big major corporate defendants who have resources 

and get around it. So let me tell you what I have some instinct may 

be motivating these bills. It is almost as if we have a reverse—we 

have some kind of redistribution here of the burden because we are 

not getting all of these resources from our big well-heeled defendants. It is almost as if we are broadening the category of restitution. 

So If I am a prosecutor in a typical midsized U.S. Attorney’s office that has to get our numbers on restitution up to show DOJ we 

are doing a good job and to get a good evaluation and I am struggling to collect from my big fish defendants, what do I do? I go out 

and bring more expansive restitution claims against other defendants. Is there anything to that theory, Mr. Smith? 

Mr. SMITH. Absolutely. As a matter of fact, Congressman, I think 

everything you have said is right on point. And it takes—— 

Mr. DAVIS. I am going to quit while I am ahead. 

Mr. SMITH. And thank God you are a former AUSA because you 

know exactly what goes on. And everything you have said strikes 

me as totally realistic. That will happen. And I don’t think you 

have heard any good answers to your questions. 

Mr. DAVIS. Mr. Chairman, I shall quit while I am ahead. 

Mr. SCOTT. Thank you. The gentleman from Texas. 

Mr. GOHMERT. Mr. Chairman, I would just like to ask unanimous 

consent to make this written submission by the U.S. Department 

of Justice before our Committee on this bill part of the record. 

Mr. SCOTT. Without objection. The gentleman from California. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. This has 

been a most interesting hearing. Mr. Smith, you have enlightened 

me that—this is the first time I have heard on this panel that the 

U.S. Justice Department or downtown Justice Department doesn’t 

have any control over its U.S. attorneys. I mean, I heard just the 

opposite. That is the complaint we got, that they have got too much 

control of the U.S. attorneys but you have enlightened me that in 

fact they used a laissezfaire approach. You have also told me that 

you don’t trust Federal judges to get it right, except when you do 

trust Federal judges to get it right. 

Mr. SMITH. When they know the facts. 

Mr. LUNGREN. And you have also told me that this bill by itself 

is going to undermine our whole system of justice. So this must be 

a pretty big bill. Let met ask any of you out there. In 1996, when 

I was attorney general of California, we worked with the California 

legislature to pass a preconviction asset-freezing law dealing with 

white-collar crime. It was limited, as I recall it, to white-collar 

crimes and it had to be involving two felonies and it had to be over 

a certain amount and so forth. I was just wondering—and that was 

on an ex parte order based on a showing of probable cause. And it 

resulted in the freezing of defendant’s assets. And I have been gone 

for quite a while there so I have not followed it. But since you are 

giving us an opinion with respect to this bill that, in some ways, 

seems to be similar what happened in California, have any of you 

seen whether the concerns you have expressed here have actually 

seen fulfillment in the enforcement of the California act? 

129 

Mr. CASSELL. If I could just comment on that, Congressman. The 

bill that you put into was put into effect more than 10 years ago 

has been on the books in California. There have been some defense 

challenges and those defense challenges have been rejected. California courts have found that that law is constitutional and it has 

been used effectively, as I understand it, by prosecutors all over the 

State there to restrain assets. And then if a defendant is convicted, 

to provide restitution to crime victims. So I think the burden 

should be on those who are in this room that suggest that this kind 

of legislation is unconstitutional to prove why laws in California, 

Minnesota, my home State of Utah and Pennsylvania that do essentially the same thing have all been on the books and have all 

survived constitutional challenges. 

Mr. LUNGREN. Maybe I would ask the question this way. The allegation has been put forward that if this bill goes forward, it 

would result in virtually all of these defendants being placed in a 

position of indigency such that they would not be able to afford 

their lawyers. Does anybody know what has happened in those 

States such as my home State or Utah or the others that have this, 

where it has been put into place, do we have the reality that that 

has rendered these defendants incapable of hiring their own counsel and therefore essentially getting indigent lawyers? 

Mr. CASSELL. That has not happened in Utah, Congressman. 

Mr. LUNGREN. Okay. Any of the other three, could you give me 

some advice on that? 

Mr. WEISSMANN. I can address that on the Federal level because 

right now there is the ability to obtain an ex parte order with respect to forfeiture. The difference in this bill is that post indictment 

with respect to restitution, the procedural protections that are in 

place currently with respect to pretrial, preconviction, pre-indictment restraints of forfeiture do not exist with respect to what 

would be put in place—— 

Mr. LUNGREN. I understand that. But I am saying we have at 

least four States as I understand it that have this with respect to— 

not all crimes. I understand this is broader. But with respect to 

certain categories of white-collar crimes. So—and it is pre-indictment as I understand it. And it follows many of the parameters of 

this bill. Look, I don’t want to see abuses by prosecutors. But I am 

trying to find out if the criticisms that you have registered have 

proven out in the experiences of the States that have similar statutes or you can argue to me if you will that these are different 

types of statutes than what we are talking about here. I am just 

trying to figure out—— 

Mr. WEISSMANN. I don’t know the answer with respect to the specific States, but I would tell you that the things to look at to see 

whether there are sufficient procedural protections are is there a 

limited period of time after an ex parte order is entered after which 

it sunsets and that the defendant has a real opportunity to have 

a hearing. Neither of those are true with respect to the provision 

that is proposed here. 

Mr. LUNGREN. Well, let me ask you that. This bill—at least H.R. 

845, at least on page 21 has the defendant’s right to a hearing. And 

it says in the case of a pre-indictment protective order entered 

under subsection such and such, the defendant’s right to a post reVerDate Aug 31 2005 10:57 Nov 26, 2008 Jkt 000000 PO 00000 Frm 00133 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\040308\41580.000 HJUD1 PsN: DOUGA
130 

straint hearing shall be governed by paragraphs 1(b)b and 2 of section 413(e) of the Controlled Substance Act. And I looked at the 

Controlled Substance Act and it says that you have a right to a 

hearing and I believe it is within 10 or 15 days. 

Mr. WEISSMANN. Yes, it is within 10 days. And there is a 10-day 

and a 90-day provision. One of the anomalies with the current bill 

is that for somebody where it is pre-indictment, it just tracks the 

current forfeiture provisions for an ex parte restraint. If it is post 

indictment, almost all of the protections that currently exist are 

wiped out. So it is not a limited opportunity—a limited period 

where the order is in place. The opportunity for the defense to challenge it is virtually nil. There is no requirement to show that the 

assets would be dissipated. That is not even something that the 

prosecutor has to even show a judge is possible, which is, of course, 

something that is required in the civil context. So that many of the 

procedural requirements that currently exist in the—that are 

tracked here with respect to forfeiture pre-indictment do not exist 

post indictment in this bill. 

Mr. SCOTT. Will the gentleman yield? 

Mr. LUNGREN. Well, I am confused because what I read was specifically that it said post restraint hearing, the right to a post restraint hearing, which is still pre-indictment but it is after the 

freezing. They refer to it as a restraint occurs. Then as I understand it, you have governed by this section of the Code which says 

a hearing requested concerning an order entered into this paragraph shall be heard at the earliest possible time. And so that is 

what I am—— 

Mr. SCOTT. Will the gentleman yield? 

Mr. LUNGREN. Yes. I would be happy to. 

Mr. SCOTT. You get the hearing. The next step is what happens 

at the hearing. 

Mr. LUNGREN. I understand that. But I am just saying as I understand it—— 

Mr. SCOTT. And I think one of the complaints is that at the hearing the prosecutor says we have probable cause and that is the beginning and the end of the hearing. 

Mr. TURLEY. To answer both of the questions—I am sure everyone’s answer as well—first of all, your first question, I know of no 

law in any of the States that you mentioned as broad as this law 

and I know of no law that deals with restitution. 

Mr. LUNGREN. I understand about broad. And I said that as part 

of my question. But I said the way it actually has worked in that 

universe of offenses to which it applies has what you have suggested would result if this went into effect taken place with that 

universe of defendants. 

Mr. TURLEY. Yeah. If you shrink the universe—actually, there is 

a smaller universe in Federal law. There are some provisions involving asset hearings in Federal law as well. But I think the point 

that is made by the Chairman is really the correct one, that the 

reference that you are making, the pour-over clause to controlled 

substances defines essentially the framework of the hearing and 

once you get the hearing. Once you get there, the standard is basically answered by the subject of the hearing that—because all you 

131 

have to do is show that you have probable cause that if convicted 

you would be subject to restitution under these offenses. 

Well, particularly if you make restitution applicable, the probable 

cause standard—you have to show that there is a probable cause 

standard error, that there was an error that you would not be subject to restitution. Otherwise I don’t know what the purpose of the 

hearing is because it is not a mini trial. 

Mr. LUNGREN. What I am saying, though, is I understand that 

that is the same standard used in the California law. It is upon the 

showing of probable cause. It is nothing more than that. So my 

point is, if that is such an insurmountable impediment for the defendant, that it is almost inevitable that he or she will always lose 

and will have these consequences that you have talked about—and 

I am trying to think of that as legitimate potential consequences. 

If that has not occurred in the application of the law, maybe it is 

not as inevitable as you suggest. 

And again I am trying to figure out a way—I mean, when I came 

to Congress in 1979, I worked with Ab Mikva to try to make restitution a significant working part of the Federal criminal justice 

system. I have, with real enthusiasm, hoped that that would be a 

part of our system. And when I see a GAO report that shows that 

it is not working well, I am willing to look at different mechanisms 

to make it work. And it would be helpful if in addition to opposing 

this—I realize you have just been asked to testify about this—in 

addition to opposing this, you might give us some recommendations 

as to how it might actually work such that the guys that—we all 

agree, you know, at the time that they are convicted and, man, 

their assets are gone, they have been secreted somewhere, they 

can’t get them. That is not only unfair to the overall justice system, 

it is unfair to the victims. 

And how do we deal with it in a way that is also fair to people 

that have the presumption of innocence before trial and is there 

not a—both a practical and legal difference between forfeiting that 

asset and freezing that asset or at least as I take it from three of 

you on the panel, there is no real practical difference, you are denying that person that property. One of the arguments of the proponents is there is a significant difference between the two. And I 

guess you were arguing that there really is not a difference between forfeiting it and freezing it as far as the ability to defend—— 

Mr. TURLEY. I think that there is no practical difference when 

you freeze assets in a proceeding like this. I think what it does— 

I think it will be a nightmare for judges, because what it does is 

once the assets are frozen—I have got to tell you, I could not imagine a prosecutor worth any, you know, worth not being able to 

freeze all of the assets under some of these theories of a normal 

case. But once those assets are frozen, you can come back and say, 

look, I need some of that money for attorneys. And the judge is in 

the position to say, well, how much do you need? How much do you 

have? And the judge is going to be essentially treating your assets 

like you were an indigent defendant. They will be treating your assets because the judge is allowed under these rules to release funds 

if it considers that you are showing that indeed you need the 

money for counsel. 

Mr. SCOTT. Will the gentleman yield? 

132 

Mr. LUNGREN. Sure. 

Mr. SCOTT. One of the bills—you get the hearing if you need the 

money for the attorneys, but I don’t see where you can—— 

Mr. SMITH. You are right, Mr. Chairman, there is no provision. 

Mr. Turley is wrong about this one. There is no provision in here 

which allows the judge to release assets to pay attorneys or for necessary living expenses. And that is one of the major—one of the 

most obvious reasons why this provision is dreadful. 

Mr. LUNGREN. Mr. Cassell, would you object to that? 

Mr. CASSELL. I am looking right at here. It says that if there are 

assets available to the defendant to retain counsel in a criminal 

case or to provide for reasonable living allowances—— 

Mr. SCOTT. That gets you the hearing. Then where further down 

do you get to use—once you are—that gets you to the hearing. 

Mr. SMITH. That gets you to the hearing. Exactly. 

Mr. SCOTT. Now, once you are in the hearing, the judge doesn’t 

have any authority to actually release the money. 

Mr. CASSELL. That is not my reading of the bill. And if that is 

what the law says, that is a drafting issue. 

Mr. LUNGREN. Professor Cassell, would you object to that? 

Mr. CASSELL. No, of course not. I mean, it has been the law in 

California—I guess . . . maybe what we should do is take the California law you wrote or helped to write 10 years ago, Xerox that 

and put that into the Federal statutes, because that seems to have 

worked well for 10 or 11 years out in California to allow prosecutors to seize assets without creating this parade of horribles that 

we hear from the—— 

Mr. LUNGREN. This is another example, Professor Cassell, why I 

am so opposite that I can’t refer to you as Judge Cassell anymore. 

I yield back. 

Mr. SCOTT. The gentleman’s time has expired. We will have another round of questions. One of the problems, Professor Cassell, 

is with tweaking is the entire basis of the bill is an ex parte preindictment, no notice freezing of assets without discretion on the 

judge to release the assets so long as there is a facial showing of 

probable cause. You could have the situation in a criminal case 

where the defendant can show by the preponderance of the evidence that he is innocent. But if there is still probable cause, his 

assets are frozen until he can get to court. This is pre-indictment. 

So it is kind of hard to tweak when that is the basis of the bill. 

Mr. Smith, are you familiar with the Virginia victims compensation 

law? 

Mr. SMITH. No, I am not, your honor. I mean Mr. Chairman. I 

am not. 

Mr. SCOTT. What would happen in partnership assets if one of 

the—if the partnership is being charged with a crime, do all the 

partners and all of their personal assets get caught up in this? 

Mr. SMITH. If a partnership is charged with a crime, yeah, sure, 

all of their assets could be frozen under this provision. You see, 

this asset freeze provision is modeled after the Federal forfeiture 

laws. And to me it is also a shame that the Federal forfeiture laws 

do not have any provision to allow to give a judge discretion to release funds needed to support one’s family or to pay counsel. In 

other words, if the government makes that probable cause showing 

133 

that these assets are subject to forfeiture, that is the end of the 

matter. 

Mr. SCOTT. In these bills? 

Mr. SMITH. No. Not just under this bill, but under current forfeiture law, that is also the law. 

Mr. SCOTT. But that is after conviction? 

Mr. SMITH. No, that is before conviction. 

Mr. SCOTT. But that is with fruits of the crime? 

Mr. SMITH. By probable cause. 

Mr. SCOTT. Fruits of the crime, not—— 

Mr. SMITH. An ex parte showing a probable cause is enough to 

freeze the assets in the Federal forfeiture case. And then even if 

the defendant, let’s say, needs the money to pay for his wife’s cancer operation, the judge has absolutely no authority to order that 

money to be released for that purpose because it is subject to forfeiture. 

Mr. SCOTT. But that is only fruits of the crime assets. 

Mr. SMITH. Excuse me? 

Mr. SCOTT. Is that just fruits of the crime assets? 

Mr. SMITH. Yes. In other words, it has to be tainted money. And 

this provision goes, you know, enormously further because it allows 

the government to freeze all of the defendant’s assets, clean money, 

dirty money and anything in between. 

Mr. SCOTT. Now, if you are on appeal—you have been convicted 

and on appeal, what is the present law on liquidating your assets 

and what would these bills do to that law in liquidating your assets 

unrelated to the crime? 

Mr. SMITH. On appeal under this statute? 

Mr. SCOTT. Right. 

Mr. SMITH. Well, again, one of the provisions in these bills takes 

away a Federal judge’s power to allow the defendant to not pay restitution during—while his case is on appeal. He can be compelled 

to pay the restitution. And so that even if he wins his appeal, he 

doesn’t get his money back because he can’t compel the victims to 

whom the money has been paid, the supposed victims, to give it 

back. And I think that is a very ill-conceived provision as well. It 

is unfair because there is no way to undo the damage if the defendant wins his appeal and is exonerated. 

Mr. SCOTT. How are innocent third parties protected if you have 

a construction firm, somebody has prepaid for the building of the 

house, how are they protected under this freezing of assets? Because if you have been prepaid for the house, the contractor can’t 

build the house if his checking account is frozen, he can’t pay the 

workers. What happens—do innocent third parties get to come 

in—— 

Mr. SMITH. They are out of luck because as—there are no special 

provisions in these bills for innocent third parties. In fact, they 

have even fewer rights than the pathetically limited rights they 

have under the Federal forfeiture statutes. Here—— 

Mr. CASSELL. That is just not right. The provision I am looking 

at it says third party’s right to post restraint hearing. There it is 

right there. 

134 

Mr. SCOTT. Read that section so we know what a third party— 

innocent third party would have to prove to get their money kind 

of unfrozen. 

Mr. CASSELL. A person other than a defendant who has a legal 

interest in a property affected by a protective order issued under 

this law may move to modify the order on the grounds that the 

order causes an immediate and irreparable hardship to the moving 

party and less intrusive means exist to preserve the property for 

restitution. If after considering the evidence, the judge is entitled 

to modify the order. 

Mr. SCOTT. So the third party would have to come in and argue 

the case? 

Mr. CASSELL. Right. But remember, though, what the other interests are. 

There are crime victims that are involved here who are entitled 

to recover restitution, and the money is being spent on trips to Europe or things like that. This says a third party can come in and 

say, wait a minute, I have a stronger claim than the crime victim 

does and then it lets the judge sort out all—— 

Mr. SCOTT. The problem with this is this is all pre-indictment. 

Mr. Weissmann. 

Mr. WEISSMANN. There is one provision that my colleague just 

didn’t mention. Once that third party comes in and makes that 

showing, what the court is allowed to do, if a third party comes in 

and makes those two showings, basically the court has this discretion. The court shall modify the order to mitigate the hardship to 

the extent that it is possible to do so while preserving the asset for 

restitution. 

With that language, what exactly can a court do? The asset 

needs to be restrained for restitution. So I don’t know how the 

court satisfies that prong and grant relief. 

Mr. SMITH. That is the point I wanted to make. That provision 

is not in Federal forfeiture statutes. 

In other words, a third party can come in a forfeiture case and 

say, judge, you’ve restrained my assets, and I am innocent. It is a 

mistake. I actually own this property, not the defendant. The judge 

has the power to lift the restraining order and return those assets 

to the third party. 

But as you just heard from Mr. Weissmann, under these provisions in the bills in front of you, the judge does not have that authority. He can’t return the asset to the third party because that 

would make the property unavailable to pay a future restitution 

order. 

Mr. SCOTT. Mr. Turley. 

Mr. TURLEY. Actually, this hits on one of the main problems in 

this design; and it is that you expand the pool of people that can 

make claims upon the assets by expanding the victims. You actually make the defendant pay for attorneys fees for other attorneys. 

So if you challenge that, you are running up fees you may ultimately have to pay. 

But, in the end, the court is in a weird position. He is sort of like 

a special master. He has to sit there and decide who gets what out 

of the asset pool. And there is not many guidelines here. 

135 

And I also want to note, if I would, about the disagreement earlier. Part of this all folds into the same problem with regard to the 

power of the court to release money for attorneys. And that is, if 

you take a look at the post-indictment provision, the very purpose 

of the hearing is that you have established by a preponderance of 

the evidence that indeed you need this money for counsel. 

So the point—you are having a hearing on that subject, but when 

you get to the hearing it doesn’t say anything about that as the 

basis for releasing assets, and so you have two provisions that are 

in conflict. 

My guess is that a court would probably resolve it to mean that, 

actually, they have a fair amount of authority to determine that 

not all these assets are needed to protect victims, and they would 

probably resolve it. Because that is the subject of the hearing, is 

your right to get attorneys fees. 

But all of these show what madness may lie at the end of this 

road. Because you are going to have a lot of people making claims 

on limited assets, a judge who is going to have to try to manage 

that as well as requests for attorneys fees and determine what her 

authority is to grant them, and at the end of that road that court 

is going to have to sit there and divide up this pie. And I have to 

tell you I would not want to be there for that event. 

Mr. CASSELL. I don’t think it would be that difficult to sort some 

of these things out. What is madness here is we let criminals go 

off to Europe, squander assets, and at the end of the day say to 

crime victims, I am sorry, we’ve let the criminals spend all the 

money. There is nothing left for you. That is what is madness here, 

and that is what the Subcommittee should change. 

Mr. SCOTT. That is one of my original points. You have the same 

provision for the guilty as well as the innocent. Someone who is 

subsequently found to be not guilty cannot spend his own money. 

Mr. CASSELL. For the limited period of time, 69 days under the 

Speedy Trial Act while they are awaiting trial. 

Mr. SCOTT. Wait a minute. That is after indictment. How long— 

let me ask somebody. Mr. Weissmann, how long can they go with 

one of these things? After they have frozen your assets, when do 

they have to indict you? 

Mr. WEISSMANN. They don’t. But the other is post-indictment to 

say that you go to trial in 70 days because of the Speedy Trial Act 

is—in my experience in 15 years I never saw a case go to trial in 

70 days. That just doesn’t happen. The Speedy Trial Act has so 

many exclusions, so you could have this kind of pretrial restraint 

for years. Enron is a good example of that. 

Mr. SCOTT. And then once the trial starts, how long does a trial 

take? 

Mr. WEISSMANN. It could take a week. It could take 6 months. 

Mr. SCOTT. During which time your assets are frozen? 

Mr. WEISSMANN. Yes, and it could be assets you want to use for 

counsel. 

Mr. SCOTT. And if you are trying to run a business, the corporate 

checking account or the business checking account is frozen. It is 

in your name. 

136 

Mr. WEISSMANN. Yes. Right. And that is where the difference between seizure and freezing is really illusory when you need the 

money. 

Mr. TURLEY. The great moment, actually, in sports for this statute actually comes when you have a transfer of property, when you 

have a defendant who is deceased. So under one of the sort of accidents waiting to happen is that if you have a defendant who dies 

and so property transfers, let’s say, to his family, under these provisions it would seem to read that the government can go after that 

family and say, we know you have this house in fee simple transfer, but we have determined that this was a really bad guy, and 

so we are going to come after you. And that would—you are talking 

about all this end pipe problems. That really would be an extraordinary act. 

Mr. SCOTT. Let me ask one other question. Do you have—I will 

yield to the gentleman from Georgia for 5 minutes. 

Mr. JOHNSON. Yes, thank you, Mr. Chairman. 

I want to make sure I have this correct. A pre-indictment asset, 

or the pre-indictment asset restraint provision kicks in upon an ex 

parte showing of probable cause that the indictment will allege an 

offense which requires restitution to be paid. Is that correct? 

Mr. CASSELL. That’s correct; and then there is, of course, the 

right to a hearing very rapidly. 

Mr. JOHNSON. And the defendant then can request a hearing. 

And the government would simply show—they would simply show 

by probable cause that the indictment that will come will allege a 

crime for which restitution must be ordered. 

Mr. CASSELL. And that the amount of restitution in question is 

necessary—— 

Mr. JOHNSON. No, no, no, I don’t want to go that far. I just want 

to say that the only thing that the government has to prove by 

probable cause is that they will charge, in an indictment, that the 

defendant has committed a crime which requires that restitution be 

ordered. 

Mr. TURLEY. And if 845 is enacted, all crimes will be subject to 

restitution. 

Mr. JOHNSON. So it doesn’t matter how much restitution. It is 

just a fact that restitution can be ordered or must be ordered as 

a result of an indictment to come. 

Mr. TURLEY. It would be the world’s shortest probable cause 

hearing. The prosecutor will walk in and—— 

Mr. JOHNSON. And it won’t be probable cause that the defendant 

committed the offense to be alleged against him. 

Mr. TURLEY. Right. It can’t be. 

Mr. JOHNSON. It is simply that the species of the allegation to 

be leveled in the future is one that would require restitution to be 

ordered. 

Mr. TURLEY. That’s right. The language of the statute would answer the question of the hearing. And as Judge Cassell was going 

to point out about the size of the award, you have to remember at 

this stage you’re pre-indictment. But even if you are post-indictment pretrial, that indictment is very likely in many cases subject 

to a superseding indictment. Counsel will be dropped. 

137 

You are talking about the earliest possible stage. So you have the 

maximum number of counts, and all the prosecutor has to show the 

judge is this huge universe of potential victims under this act and 

say all of these people can ask for these assets. That’s a fluid 

standard that you can easily stretch the limits of anyone’s asset. 

Mr. CASSELL. I guess I would say why hasn’t this happened in 

California in the last 12 years? At Page 29 in my testimony, I recount the California law that Congressman Lungren helped draft. 

It has the same language, including pre-indictment language, as I 

understand it, and this parade of horribles that we keep hearing 

is going to happen—it is going to threaten the sixth amendment; 

it is going to lead to persons kicked out on the street without a roof 

over their heads—none of this has happened in California. 

What has happened in California is that crime victims have been 

able to get money back to them that criminals have taken from 

them. That’s the fundamental issue here. 

And there are certainly some drafting issues that can be looked 

at, and you may have put your finger on some words that need to 

be tightened up. But the goal here should be to ensure that crime 

victims get compensation in a fair way, not to simply say, well, 

there are drafting problems here, and we will throw the whole 

thing out. 

Mr. SCOTT. In your testimony, you cite at the hearing the court 

is directed to consider relevant factors as follows: Shall weigh the 

relevant degree of certainty of outcome on the merits, the consequences to each of the parties of granting interim relief. If the 

prosecution is likely to prevail on the merits and the risk of dissipation outweighs potential harm to the defendants and interested 

parties, the court shall grant relief, shall give significant weight to 

the following factors and so on and so forth. 

This says once probable cause attaches, you don’t consider anything. There is no weighing. It’s a done deal. 

In fact, on the initial thing, all the defendant knows is his check 

has bounced. The U.S. Attorney says, I have an ex parte. You go 

in. You don’t even know what you’re defending. How do you prepare for a hearing? 

I mean, I guess you got to get a continuance after you get a little 

bit of what the allegations are, and you still can’t write a check. 

There is no weighing. There is no public interest in preserving the 

property. There is no public interest measure. 

Mr. JOHNSON. In reclaiming my time, the universe of the charges 

that are possible is infinite. 

Mr. CASSELL. I guess my point would be this. If you think the 

California language is better—and there are certainly some things 

in the California statute that aren’t in this statute, there are 

things in this statute that aren’t in the California statute—but if 

you like the California statute better, you couild just copy that and 

put that into the Federal Code. Because that will at least give prosecutors a tool that they could use to freeze assets when it was necessary. Right now, they don’t have that tool at all. 

Mr. SMITH. I would like the raise a point about this reliance on 

State law. I am not familiar with this California statute that Professor Cassell is talking about. But in my experience with State 

forfeiture laws, which is very extensive, I have found that generally 

138 

the States are very, very unaggressive in white-collar cases, assuming they do them at all. And that is what we are talking about 

here. There is no restitution money to be raised in anything but 

white-collar cases. 

I would like to know—I would like to see statistics on how much 

money California has actually recovered for victims through this 

statute and how much increase there was once the statute was enacted. And I will bet you it is very small. Because they just don’t 

have the resources to do these big white-collar cases that the Feds 

do, and so I really doubt that one can learn very much from whatever State experience is out there. 

Mr. SCOTT. Well, one of the cases that I think would—one of the 

first things you would see in a controversy, you have some businessman, a contractor or something, charged with a drug crime, 

charged with some theft or some conspiracy or something; and the 

first thing they go in and freeze the business assets. 

Let me ask one final question. Mr. Smith, can you talk about the 

effect of all of this on your right to choose counsel and the constitutional implications of freezing your assets and your right to choose 

a counsel? 

Mr. SMITH. Can I speak to that? Absolutely. 

I think it will have a devastating effect on your ability to choose 

counsel or to obtain any private counsel. And one of the questions 

that we pose, which nobody really answered, was how in the world 

do you get the necessary money to even challenge one of these restraint orders if all your assets are frozen? I mean, it is like a 

chicken-egg problem. How do you get the money to—and believe 

me, I know from experience it takes a lot of money to challenge one 

of these orders. Because you have got to learn the case. And how 

are you going to learn the case? It is basically all secret at this 

point. 

Mr. SCOTT. Because all you know is your checks bounced. 

Mr. SMITH. Exactly. You know your checks bounced, and they 

have your money. But you don’t know what their theory is or what 

their evidence is, and you’re not going to. And it is going to be difficult to find out. So how do you get a lawyer to take your case to 

challenge the restraint order when you don’t have any money to do 

so? Nobody answers that question. 

One of the points I make in my statement, which we didn’t really 

mention here, is that Congress has several times rejected the Department of Justice’s proposals to extend pretrial asset restraint to 

what are called substitute assets, meaning clean or legitimate assets that are subject to forfeiture under our forfeiture statutes. But 

Congress is quite smart, wisely refused to allow the government to 

freeze those assets prior to trial. And why is that? 

Every time the government has proposed that, even in the Patriot Act of 2001, which just sailed through under the pressure of 

9/11, that provision, when they stuck it into the Patriot Act, because they figured, well, everything in this act is going to pass, but, 

guess what, Senator Leahy took it out. It is not in there because 

he knew exactly what would happen if you give the government 

this tremendous authority to freeze clean assets prior to trial. It 

would basically mean the end of our adversary system of justice or 

at least the replacement of the private bar with public defenders 

139 

in pretty much every case unless for whatever reason the prosecutor was nice enough to just ignore his powers under this statute. And if you want to do that, then just go ahead and do it. Abolish the defense bar. Make everybody a public defender. 

But is it really worth it? How much money has been—is going 

to be obtained for victims that way, by abolishing the private practice of criminal defense work? Not very much. 

And, to me, it is just—the two things are so out of proportion 

that that is why I say, you know—at least I am not talking about 

the rest of the bill. Obviously, reasonable people can differ about 

a lot of the provisions in this bill. I am talking about this provision, 

the pretrial asset restraint provision. 

I don’t really see what reasonable argument can be made that 

this is so necessary to raise money for victims that we need to jeopardize the existence of a private defense bar and basically put everybody—every criminal defendant at the mercy of every prosecutor. And that is why Congress has repeatedly rejected this idea. 

In the forfeiture context, why in the world—where, by definition, 

assets are supposed to be subject to forfeiture, why in the world 

would we allow this in the restitution context where, you know, all 

that is at stake is money, basically. We are not talking about the— 

you are sacrificing the sixth amendment right to counsel to a victim’s desire to be compensated. 

There are much better ways, and I think the Chair has suggested some better ways to compensate the victims. Let’s let the 

Treasury compensate them, if necessary. But don’t allow the government to pauperize every defendant in order to pursue this will 

of the wisp. 

Mr. CASSELL. Can I correct Mr. Smith on one point? 

Mr. SCOTT. Just a minute. Mr. Turley. 

Mr. TURLEY. Thank you, Mr. Chairman. 

Just to respond to the question you asked about the sixth amendment, there is a misunderstanding I think with some supporters of 

the bill that Caplin Drysdale would support this bill. Because in 

Caplin Drysdale was where the Court—the Supreme Court and in 

Monsanto said that you can, in fact, have forfeiture of assets that 

are claimed for attorneys fees and that it is not a violation of the 

sixth amendment. But that is indeed the difference between forfeiture and a restitution. The reason you can freeze that money is 

because the money is not yours because they are showing that it 

is tainted money. 

And the only other point I would raise is everyone is talking 

about dividing this up for victims. In my view, this is not going to 

get more money to victims, but it may very well get some money 

to attorneys. Because if you’re talking about the 15 percent that actually has assets, they are going to have their assets thrown into 

these pots, the defendant has to pay for the attorneys who are 

going after the assets. Those attorneys will have agreements, I assure you, from their clients that they will get paid. They will get 

a priority interest in those assets or they will be paid directly. 

I think the most likely result is that these victims funds are 

going to go largely to lawyers. 

Mr. SCOTT. Final comment, Professor. 

Mr. CASSELL. Yes, thank you, Mr. Chairman. I appreciate that. 

140 

It is simply not true to say Congress has repeatedly rejected this. 

This bill comes before this Committee having passed the Senate already. 

And with regard to how much money is at stake here, Senator Dorgan’s example has gone unchallenged today. More than $10 

million was transferred by the defendants in those cases, transferred away from victims that could have desperately used that 

money for their legitimate losses. And so I would urge this Subcommittee to move forward with the bill. 

Mr. SCOTT. Thank you. 

A letter from Thomas Hillier from the Federal Public Defender 

be entered into the record. Without objection. 

I want to thank all of our witnesses, and I would like to thank 

you for your testimony today. 

Members may have additional questions which we will forward 

to you and ask that you answer as promptly as you can so they be 

made part of the record. 

Without objection, the hearing record will remain open for 1 

week for the submission of additional materials. 

Without objection, the Subcommittee stands adjourned. Thank 

you very much. 

[Whereupon, at 4:30 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND CHAIRMAN, COMMITTEE ON THE

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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

Mr. Chairman, thank you for your leadership in convening today’s very important 

hearing legislative proposals before the 110th Congress to amend federal restitution 

laws. I would also like to thank the ranking member, the Honorable Louie Gohmert. 

Welcome to our distinguished panelists. 

Since 1925, with the enactment of the Federal Probation Act, restitution has been 

an accepted form of punishment with the federal criminal justice system. Simply put 

restitution is the money a judge orders an offender to pay to the victim(s) to compensate for damages related to the crime. 

Restitution is part of the offender’s sentence and can be ordered in both adult and 

juvenile cases following a conviction or a plea of guilty. The amount of restitution 

ordered by the judge is contingent upon the victim’s expenses related to the crime 

and the offender’s ability to pay. 

Presently, restitution can only be requested for out-of-pocket expenses incurred by 

the victim as the result of a crime. If the entire amount of the victim’s loss is unknown at the time of sentencing, the amount of restitution ordered may be determined at a later date. 

All requested restitution costs must be directly related to the criminal act perpetrated by the charged defendant(s). Expenses incurred by another critical incident 

will not be considered for payment. Some judges will only order restitution for expenses not covered by insurance. 

Payment for physical pain and/or emotional trauma can not be ordered by the 

criminal court. Victims who seek additional financial compensation for this type of 

loss must retain a civil attorney for representation. The offender’s financial resources and ability to pay should be considered when assessing this recovery option. 

Restitution can be mandatory or discretionary. Once the court determines the restitution amount, the resulting amount is the restitution that the court must impose 

in mandatory restitution cases. Offenses which mandate the imposition of the full 

restitution amount are those listed in 18 U.S.C. sections 3663A, 2248, 2259, 2264, 

and 2327. Discretionary restitution is authorized as a separate order for any offense 

listed in section 3663. 

In discretionary restitution cases, the restitution amount imposed is the result of 

balancing the harm with a consideration of the defendant’s ability to pay restitution 

for that harm. In deciding whether to impose discretionary restitution, the court 

must consider the statutory ‘‘factors’’ provided in section 3663(a)(1)(B)(i), which are: 

‘‘The court, in determining whether to order restitution under this section, shall consider—(I) the amount of the loss sustained by each victim as a result of the offense; 

and (II) the financial resources of the defendant, financial needs and earning ability 

of the defendant and the defendant’s dependents, and such other factors as the court 

deems appropriate.’’ Determining the defendant’s ability to pay is also relevant in 

determining the amount of a fine to impose, and it is relevant to determining the 

manner of payment of any restitution order, pursuant to 18 U.S.C. section 

3663(f)(2). 

The Subcommittee will examine proposed legislation that would make substantial 

changes in federal restitution law. Three legislative proposals, two before the House 

and one before the Senate, have the potential of imposing sweeping changes to restitution requirements on defendants, altering the discretion of judges, and freezing 

the assets of citizens even before they are charged with a crime. The Subcommittee 

will examine the proposals and hear arguments concerning them. 

Mr. Chairman, the Subcommittee will hear testimony about S.973, H.R. 845, the 

‘‘Criminal Restitution Improvement Act,’’ sponsored by Honorable Steve Chabot 

(OH) and H.R. 4110, the ‘‘Restitution for Victims of Crime Act of 2007’’, sponsored 

by the Honorable Carol Shea-Porter (NH). These proposals call for the expansion of 

prosecutorial authority to freeze a defendant’s assets in anticipation that the defendant will have to pay restitution to a crime victim. 

Reform is needed because uncollected federal restitution and fine payments totaled nearly $46 billion at the end of fiscal year 2006, the latest total available from 

the Justice Department, an increase of $5 billion over the year before. While reform 

is needed, these legislative proposals are not the answer. Instead, their enactment 

will lead to increased claims of restitution and more uncollected funds. 

The legislative proposals that we are examining today call for three kinds of adjustments to ensure control over a defendant’s assets: expanding the universe of 

crime victims entitled to restitution, expanding the government’s ability to control 

a defendant’s assets procedurally, and creating a new avenue of controlling a defendant’s assets by authorizing pre-conviction asset freezing. 

146 

These proposals expand the universe of potential victims by expanding the number of offenses for which restitution would be ordered. S. 973 and H.R. 4100 would 

add six statutes to those already authorizing the court to order restitution at its discretion. 

H.R. 845 is more far-reaching because it would mandate restitution for all federal 

offenses. This would lead to a large volume of crime victims who would qualify for 

restitution. 

These proposals also expand the universe of potential crime victims by expanding 

the definition of a crime victim. Currently, the law defines victims for mandatory 

restitution as (1) those designated in a plea bargain, (2) the estate of a victim, (3) 

those harmed directly and proximately by the offense, (4) those harmed by the 

scheme or pattern of the offense when the offense has a scheme or pattern as one 

of its elements, and (5) guardians when the victim is a minor or disabled. 18 USC 

section 3663A(a)(1)(2006). H.R. 845 would provide for broader categories of victims 

and includes successors. 

H.R. 845 would amend the law to require restitution payments to be made immediately. Specifically, H.R. 845 states that ‘‘upon determination of the amount of restitution owed to each victim, the court shall order that the full amount of restitution 

is due and payable immediately’’ H.R. 845 sec. 3664(j)(1). 

All of the proposals provide that the court retains its authority to provide for payments based upon installments according to a schedule. The proposals also add that 

the Attorney General may collect and apply unreported or otherwise newly available 

assets to the payment due the victim without regard to the court’s installment payment provision. This could have serious effects if the defendant does not have the 

money. 

S. 973 and H.R. 4110 add increased provisions for enforcement. Under these proposals, the defendant would be required to pay a minimum of $100 per year in restitution. Because prisoners get paid so little in prison and because prisoners are required to pay for their own personal hygiene products, it is unlikely that many inmates would be able to meet the $100 minimum payment for restitution. 

The Senate proposal amends current law by requiring defendants to pay restitution during an appeal, absent good cause. If the case is vacated or overturned on 

appeal, the government cannot compel the victim to return the restitution he or she 

was paid by the defendant. Rather, the defendant has the burden of recovering 

these funds from the victim. 

These proposals would also allow for pre-indictment freezing of a defendant’s assets to ensure their availability should a defendant be convicted and ordered to pay 

restitution. This might be considered a seizure, which is abhorred by the law and 

is arguably unconstitutional. 

The proposals before us today do little in the way of ensuring that the $46 billion 

in uncollected federal restitution and fine payments will ever be collected. Instead, 

these proposals add further strain to a weak system, make uncollected federal restitution grow to even more staggering heights, and severely curtail the constitutional rights of defendants. These proposals expand the number of offenses for 

which restitution would be ordered and it expands the number of crime victims who 

would qualify for restitution. Additionally, these proposals make the full amount of 

restitution due and payable immediately. They require a defendant to pay restitution while appeals are ongoing. They also allow pre-indictment freezing of a defendant’s assets to ensure their availability should a defendant be convicted and ordered 

to pay restitution. These expanded restitution proposals amount to debtors prison 

and will have the effect of either keeping defendants in prison because they are unable to meet their restitution obligations or because they must resort to a criminal 

activity to pay for the restitution owed to victims. 

I welcome today’s hearing and I look forward to hearing from today’s panelists. 

This problem of uncollected restitution is a big one and Congress must address it. 

However, these proposals are not the vehicle for addressing the problem. 

Thank you. Mr. Chairman, I yield the remainder of my time. 

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