II

104TH CONGRESS

1ST SESSION S. 1504

To control crime by mandatory victim restitution.

IN THE SENATE OF THE UNITED STATES

DECEMBER 22, 1995

Mr. ABRAHAM introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To control crime by mandatory victim restitution.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Victims Restitution

5 Enforcement Act of 1995’’.

6 SEC. 2. PROCEDURE FOR ISSUANCE AND ENFORCEMENT

7 OF RESTITUTION ORDER.

8 (a) IN GENERAL.—Section 3664 of title 18, United

9 States Code, is amended to read as follows:
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1 ‘‘§ 3664. Procedure for issuance and enforcement of

2 order of restitution

3 ‘‘(a) For orders of restitution under this title, the

4 court shall order the probation service of the court to ob5 tain and include in its presentence report, or in a separate

6 report, as the court directs, information sufficient for the

7 court to exercise its discretion in fashioning a restitution

8 order. The report shall include, to the extent practicable,

9 a complete accounting of the losses to each victim, any

10 restitution owed pursuant to a plea agreement, and infor11 mation relating to the economic circumstances of each de12 fendant. If the number or identity of victims cannot be

13 reasonably ascertained, or other circumstances exist that

14 make this requirement clearly impracticable, the probation

15 service shall so inform the court.

16 ‘‘(b) The court shall disclose to both the defendant

17 and the attorney for the Government all portions of the

18 presentence or other report pertaining to the matters de19 scribed in subsection (a) of this section.

20 ‘‘(c) The provisions of this chapter, chapter 227, and

21 Rule 32(c) of the Federal Rules of Criminal Procedure

22 shall be the only rules applicable to proceedings under this

23 section.

24 ‘‘(d)(1)(A) Upon application of the United States, the

25 court may enter a restraining order or injunction, require

26 the execution of a satisfactory performance bond, or take
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1 any other action to preserve the availability of property

2 or assets necessary to satisfy a criminal restitution order

3 under this subchapter. Such order may be entered in the

4 following circumstances:

5 ‘‘(i) Prior to the filing of an indictment or in6 formation charging an offense that may result in a

7 criminal restitution order, and upon the United

8 States showing that—

9 ‘‘(I) there is a substantial probability that

10 the United States will obtain a criminal restitu11 tion order;

12 ‘‘(II) the defendant has or is likely to take

13 action to dissipate or hide the defendant’s prop14 erty or assets; and

15 ‘‘(III) the need to preserve the availability

16 of the property or assets through the requested

17 order outweighs the hardship of any party

18 against whom the order is entered.

19 ‘‘(ii) Upon the filing of an indictment or infor20 mation charging an offense that may result in a

21 criminal restitution order, and upon the United

22 States showing that the defendant has or is likely to

23 take action to dissipate or hide the defendant’s prop24 erty or assets.
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1 ‘‘(iii) Upon the conviction, or entry of a guilty

2 plea, to an indictment or information charging an

3 offense that may result in a criminal restitution

4 order, and upon the United States showing that the

5 defendant may take action to dissipate or hide the

6 defendant’s property or assets or that an order is

7 necessary to marshal and determine the defendant’s

8 property or assets.

9 ‘‘(B) An order entered pursuant to subparagraph (A)

10 shall be effective for not more than 90 days, unless ex11 tended by the court for good cause shown or unless an

12 indictment or information described in subparagraph

13 (A)(ii) has been filed.

14 ‘‘(2)(A) Except as provided in paragraph (3), an

15 order entered under this subsection shall be after notice

16 to persons appearing to have an interest in the property

17 and opportunity for a hearing, and upon the United States

18 carrying the burden of proof by a preponderance of the

19 evidence.

20 ‘‘(B) The court may receive and consider, at a hear21 ing held pursuant to this subsection, evidence and infor22 mation that would be inadmissible under the Federal

23 Rules of Evidence.
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1 ‘‘(3)(A) A temporary restraining order may be en2 tered without notice or opportunity for a hearing if the

3 United States demonstrates that—

4 ‘‘(i) there is probable cause to believe that the

5 property or assets with respect to which the order is

6 sought would be subject to execution upon the entry

7 of a criminal restitution order;

8 ‘‘(ii) there is a substantial probability that the

9 United States will obtain a criminal restitution

10 order; and

11 ‘‘(iii) the provision of notice would jeopardize

12 the availability of the property or assets for execu13 tion.

14 ‘‘(B) A temporary order under this paragraph shall

15 expire not later than 10 days after the date on which it

16 is entered, unless—

17 ‘‘(i) the court grants an extension for good

18 cause shown; or

19 ‘‘(ii) the party against whom the order is en20 tered consents to an extension for a longer period.

21 ‘‘(C) A hearing requested concerning an order en22 tered under this paragraph shall be held at the earliest

23 possible time, and prior to the expiration of the temporary

24 order.
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1 ‘‘(4)(A) Information concerning the net worth, finan2 cial affairs, transactions or interests of the defendant pre3 sented to the grand jury may be disclosed to an attorney

4 for the government assisting in the enforcement of crimi5 nal restitution orders, for use in the performance of that

6 attorney’s duties.

7 ‘‘(B)(i) An attorney for the government responsible

8 for the prosecution of criminal offenses, or responsible for

9 the enforcement of criminal restitution orders, may obtain

10 and use consumer credit reports to—

11 ‘‘(I) obtain an order under this section;

12 ‘‘(II) determine the amount of restitution that

13 is appropriate; or

14 ‘‘(III) enforce a criminal restitution order.

15 ‘‘(ii) This subparagraph does not limit the availability

16 of grand jury subpoenas to obtain such credit reports.

17 ‘‘(iii) Upon conviction, such reports may be furnished

18 to the United States Probation Service.

19 ‘‘(e)(1)(A) Within 60 days after conviction, and in

20 any event not later than 10 days prior to sentencing, the

21 attorney for the United States after consulting with all

22 victims (when practicable), shall promptly provide the pro23 bation service of the court all information readily available

24 to the attorney, including matters occurring before the

25 grand jury relating to the identity of the victim or victims,
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1 the amount of loss, and financial matters relating to the

2 defendant.

3 ‘‘(B) The attorney for the government shall, if prac4 ticable, provide notice to all victims. The notice shall in5 form the victims of the offenses for which the defendant

6 was convicted, the victim’s right to submit information to

7 the probation office concerning the amount of the victim’s

8 losses, and the scheduled date, time, and place of the sen9 tencing hearing.

10 ‘‘(C) Upon ex parte application to the court, and a

11 showing that the requirements of subparagraph (A) may

12 cause harm to any victim, or jeopardize an ongoing inves13 tigation, the court may limit the information to be pro14 vided to or sought by the probation service of the court.

15 ‘‘(D) If any victim objects to any of the information

16 provided to the probation service by the attorney for the

17 United States, the victim may file a separate affidavit with

18 the court.

19 ‘‘(2) After reviewing the report of the probation serv20 ice of the court, the court may require additional docu21 mentation or hear testimony. The privacy of any records

22 filed, or testimony heard, pursuant to this section shall

23 be maintained to the greatest extent possible and such

24 records may be filed or testimony heard in camera.
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1 ‘‘(3) If the victim’s losses are not ascertainable by

2 the date that is 10 days prior to sentencing as provided

3 in paragraph (1), the United States Attorney (or the

4 United States Attorney’s delegee) shall so inform the

5 court, and the court shall set a date for the final deter6 mination of the victim’s losses, not to exceed 90 days after

7 sentencing. If the victim’s losses cannot reasonably be

8 ascertained, the court shall determine an appropriate

9 amount of restitution based on the available information.

10 If the victim subsequently discovers further losses, the vic11 tim shall have 60 days after discovery of those losses in

12 which to petition the court for an amended restitution

13 order. Such order may be granted only upon a showing

14 of good cause for the failure to include such losses in the

15 initial claim for restitutionary relief.

16 ‘‘(4) The court may refer any issue arising in connec17 tion with a proposed order of restitution to a magistrate

18 or special master for proposed findings of fact and rec19 ommendations as to disposition, subject to a de novo de20 termination of the issue by the court.

21 ‘‘(5) In no case shall the fact that a victim has re22 ceived or is entitled to receive compensation with respect

23 to a loss from insurance or any other source be considered

24 in determining the amount of restitution.
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1 ‘‘(f) Any dispute as to the proper amount or type of

2 restitution shall be resolved by the court by the preponder3 ance of the evidence. The burden of demonstrating the

4 amount of the loss sustained by a victim as a result of

5 the offense shall be on the attorney for the Government.

6 The burden of demonstrating the financial resources of

7 the defendant and the financial needs of the defendant

8 and such defendant’s dependents shall be on the defend9 ant. The burden of demonstrating such other matters as

10 the court deems appropriate shall be upon the party des11 ignated by the court as justice requires.

12 ‘‘(g)(1)(A) In each order of restitution, the court

13 shall order restitution to each victim in the full amount

14 of each victim’s losses as determined by the court and

15 without consideration of the economic circumstances of

16 the defendant.

17 ‘‘(B) If—

18 ‘‘(i) the number of victims is too great;

19 ‘‘(ii) the actual identity of the victims cannot be

20 ascertained; and

21 ‘‘(iii) or the full amount of each victim’s losses

22 cannot be reasonably ascertained;

23 the court shall order restitution in the amount of the total

24 loss that is reasonably ascertainable.
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1 ‘‘(2) The restitution order shall be for a sum certain

2 and payable immediately.

3 ‘‘(3) If the court finds from facts on the record that

4 the economic circumstances of the defendant do not allow

5 and are not likely to allow the defendant to make more

6 than nominal payments under the restitution order, the

7 court shall direct the defendant to make nominal periodic

8 payments in the amount the defendant can reasonably be

9 expected to pay by making a diligent and bona fide effort

10 toward the restitution order entered pursuant to para11 graph (1). Nothing in the paragraph shall impair the de12 fendant’s obligation to make full restitution pursuant to

13 paragraphs (1) and (2).

14 ‘‘(4) Notwithstanding any payment schedule entered

15 by the court pursuant to paragraph (2), each order of res16 titution shall be a civil debt, payable immediately, and sub17 ject to the enforcement procedures provided in subsection

18 (n). In no event shall a defendant incur any criminal pen19 alty for failure to make a restitution payment under the

20 restitution order because of the defendant’s indigency.

21 ‘‘(h)(1) No victim shall be required to participate in

22 any phase of a restitution order. If a victim declines to

23 receive restitution made mandatory by this title, the court

24 shall order that the victim’s share of any restitution owed

25 be deposited in the Crime Victims Fund in the Treasury.
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1 ‘‘(2) A victim may at any time assign the victim’s

2 interest in restitution payments to the Crime Victims

3 Fund in the Treasury without in any way impairing the

4 obligation of the defendant to make such payments.

5 ‘‘(3) If the victim cannot be located or identified, the

6 court shall direct that the restitution payments be made

7 to the Crime Victims Fund of the Treasury. This para8 graph shall not be construed to impair the obligation of

9 the defendant to make such payments.

10 ‘‘(i) If the court finds that more than 1 defendant

11 has contributed to the loss of a victim, the court may make

12 each defendant jointly and severally liable for payment of

13 the full amount of restitution or may apportion liability

14 among the defendants to reflect the level of contribution

15 to the victim’s loss and economic circumstances of each

16 defendant.

17 ‘‘(j) If the court finds that more than 1 victim has

18 sustained a loss requiring restitution by a defendant, the

19 court may issue an order of priority for restitution pay20 ments based on the type and amount of the victim’s loss

21 accounting for the economic circumstances of each victim.

22 In any case in which the United States is a victim, the

23 court shall ensure that all individual victims receive full

24 restitution before the United States receives any restitu25 tion.
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1 ‘‘(k)(1) If a victim has received or is entitled to re2 ceive compensation with respect to a loss from insurance

3 or any other source, the court shall order that restitution

4 shall be paid to the person who provided or is obligated

5 to provide the compensation, but the restitution order

6 shall provide that all restitution of victims required by the

7 order be paid to the victims before any restitution is paid

8 to such a provider of compensation.

9 ‘‘(2) Any amount paid to a victim under an order of

10 restitution shall be reduced by any amount later recovered

11 as compensatory damages for the same loss by the victim

12 in—

13 ‘‘(A) any Federal civil proceeding; and

14 ‘‘(B) any State civil proceeding, to the extent

15 provided by the law of the State.

16 ‘‘(3) If a person obligated to provide restitution re17 ceives substantial resources from any source, including in18 heritance, settlement, or other judgment, such person shall

19 be required to apply the value of such resources to any

20 restitution still owed.

21 ‘‘(l) The defendant shall notify the court and the At22 torney General of any material change in the defendant’s

23 economic circumstances that might affect the defendant’s

24 ability to pay restitution. Upon receipt of the notification,

25 the court may, on its own motion, or the motion of any
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1 party, including the victim, adjust the payment schedule,

2 or require immediate payment in full, as the interests of

3 justice require.

4 ‘‘(m)(1) The court shall retain jurisdiction over any

5 criminal restitution judgment or amended criminal restitu6 tion judgment for a period of 5 years from the date the

7 sentence was imposed. This limitation shall be tolled dur8 ing any period of time that the defendant—

9 ‘‘(A) was incarcerated;

10 ‘‘(B) was a fugitive; or

11 ‘‘(C) was granted a stay that prevented the en12 forcement of the restitution order.

13 ‘‘(2) While within the jurisdiction of the court, if the

14 defendant knowingly fails to make a bona fide effort to

15 pay whatever amount of restitution is ordered by the

16 court, or knowingly and willfully refuses to pay restitution,

17 the court may—

18 ‘‘(A) modify the terms or conditions of the de19 fendant’s probation or supervised release;

20 ‘‘(B) extend the defendant’s probation or super21 vised release until a date not later than 10 years

22 from the date the sentence was imposed;

23 ‘‘(C) revoke the defendant’s probation or super24 vised release;

25 ‘‘(D) hold the defendant in contempt; or
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1 ‘‘(E) increase the defendant’s sentence to any

2 sentence that might originally have been imposed

3 under the applicable statute, without regard to the

4 sentencing guidelines.

5 ‘‘(n)(1) An order of restitution may be enforced—

6 ‘‘(A) through civil or administrative methods

7 during the period that the restitution lien provided

8 for in section 3613 of title 18, United States Code,

9 is enforceable;

10 ‘‘(B) by the United States in the manner pro11 vided for in subchapter C of chapter 227 and sub12 chapter B of chapter 229;

13 ‘‘(C) by the United States regardless of whether

14 for the benefit of the United States, in accordance

15 with the procedures of chapter 176 of part VI of

16 title 28, or in accordance with any other administra17 tive or civil enforcement means available to the

18 United States to enforce a debt due the United

19 States; or

20 ‘‘(D) by any victim named in the restitution

21 order as a lien pursuant to section 1962 of title 28.

22 ‘‘(2) A conviction of a defendant for an offense giving

23 rise to restitution under this section shall estop the de24 fendant from denying the essential allegations of that of25 fense in any subsequent Federal civil proceeding or State
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1 civil proceeding, regardless of any State law precluding es2 toppel for a lack of mutuality. The victim, in such subse3 quent proceeding, shall not be precluded from establishing

4 a loss that is greater than the loss determined by the court

5 in the earlier criminal proceeding.’’.

6 (b) TECHNICAL AMENDMENT.—The item relating to

7 section 3664 in the analysis for chapter 232 of title 18,

8 United States Code, is amended to read as follows:

‘‘3664. Procedure for issuance and enforcement of order of restitution.’’.

9 SEC. 3. CIVIL REMEDIES.

10 Section 3613 of title 18, United States Code, is

11 amended—

12 (1) in the heading, by inserting ‘‘or restitution’’

13 after ‘‘fine’’; and

14 (2) in subsection (a)—

15 (A) by striking ‘‘A fine’’ and inserting the

16 following:

17 ‘‘(1) FINES.—A fine’’;

18 (B) by redesignating paragraphs (1) and

19 (2) as subparagraphs (A) and (B), respectively,

20 and indenting accordingly; and

21 (C) by adding at the end the following new

22 paragraphs:

23 ‘‘(2) RESTITUTION.—(A) An order of restitu24 tion shall operate as a lien in favor of the United

25 States for its benefit or for the benefit of any non-
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1 Federal victims against all property belonging to the

2 defendant or defendants. The lien shall arise at the

3 time of the entry of judgment or order and shall

4 continue until the liability is satisfied, remitted, or

5 set aside, or until it becomes otherwise unenforce6 able. Such lien shall apply against all property and

7 property interests owned by the defendants at the

8 time of arrest as well as all property subsequently

9 acquired by the defendant or defendants.

10 ‘‘(B) The lien shall be entered in the name of

11 the United States in behalf of all ascertained vic12 tims, unascertained victims, victims entitled to res13 titution who choose not to participate in the restitu14 tion program and victims entitled to restitution who

15 cannot assert their interests in the lien for any rea16 son.

17 ‘‘(3) JOINTLY HELD PROPERTY.—(A)(i) If the

18 court enforcing an order of restitution under this

19 section determines that the defendant has an inter20 est in property with another, and that the defendant

21 cannot satisfy the restitution order from his or her

22 separate property or income, the court may, after

23 considering all of the equities, order such jointly

24 owned property be divided and sold, upon such con-
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1 ditions as the court deems just, regardless of any

2 Federal or State law to the contrary.

3 ‘‘(ii) The court shall take care to protect the

4 reasonable and legitimate interests of the defend5 ant’s innocent spouse and minor children, especially

6 real property used as the actual home of such inno7 cent spouse and minor children, except to the extent

8 that the court determines that the interest of such

9 innocent spouse and children is the product of the

10 criminal activity of which the defendant has been

11 convicted, or is the result of a fraudulent transfer.

12 ‘‘(B) In determining whether there was a fraud13 ulent transfer, the court shall consider whether the

14 debtor made the transfer—

15 ‘‘(i) with actual intent to hinder, delay, or

16 defraud the United States or other victim; or

17 ‘‘(ii) without receiving a reasonably equiva18 lent value in exchange for the transfer.

19 ‘‘(C) In determining what portion of such joint20 ly owned property shall be set aside for the defend21 ant’s innocent spouse or children, or whether to have

22 sold or divided such jointly held property, the court

23 shall consider—

24 ‘‘(i) the contributions of the other joint

25 owner to the value of the property;
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1 ‘‘(ii) the reasonable expectation of the

2 other joint owner to be able to enjoy the contin3 ued use of the property; and

4 ‘‘(iii) the economic circumstances and

5 needs of the defendant and dependents of the

6 defendant and the economic circumstances and

7 needs of the victim and the dependents of the

8 victim.’’.

9 SEC. 4. FINES.

10 Section 3572(b) of title 18, United States Code, is

11 amended to read as follows:

12 ‘‘(b) Any fine, special assessment, restitution, or cost

13 shall be for a sum certain and payable immediately. In

14 no event shall a defendant incur any criminal penalty for

15 failure to make a payment on a fine, special assessment,

16 restitution, or cost because of the defendant’s indigency.’’.

17 SEC. 5. RESENTENCING.

18 Section 3614 of title 18, United States Code, is

19 amended by inserting ‘‘or may increase the defendant’s

20 sentence to any sentence that might originally have been

21 imposed under the applicable statute’’ after ‘‘imposed’’.

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