II

106TH CONGRESS

1ST SESSION S. 145

To control crime by requiring mandatory victim restitution.

IN THE SENATE OF THE UNITED STATES

JANUARY 19, 1999

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

to the Committee on the Judiciary

A BILL

To control crime by requiring 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 ‘‘Victim Restitution En5 forcement Act of 1999’’.

6 SEC. 2. PROCEDURE FOR ISSUANCE AND ENFORCEMENT

7 OF RESTITUTION ORDER.

8 Section 3664 of title 18, United States Code, is

9 amended to read as follows:

10 ‘‘§ 3664. Procedure for issuance and enforcement of

11 order of restitution

12 ‘‘(a) IN GENERAL.—
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1 ‘‘(1) RELIANCE ON INFORMATION IN

2 PRESENTENCE REPORT.—With respect to each order

3 of restitution under this title, the court shall order

4 the probation service of the court to obtain and in5 clude in its presentence report, or in a separate re6 port, as the court directs, information sufficient for

7 the court to exercise its discretion in fashioning a

8 restitution order.

9 ‘‘(2) CONTENTS OF REPORT.—Each report de10 scribed in paragraph (1) shall include, to the extent

11 practicable, a complete accounting of the losses to

12 each victim, any restitution owed pursuant to a plea

13 agreement, and information relating to the economic

14 circumstances of each defendant. If the number or

15 identity of victims cannot be reasonably ascertained,

16 or other circumstances exist that make this require17 ment clearly impracticable, the probation service

18 shall so inform the court.

19 ‘‘(b) DISCLOSURES.—The court shall disclose to both

20 the defendant and the attorney for the Government all

21 portions of the presentence or other report pertaining to

22 the matters described in subsection (a).

23 ‘‘(c) APPLICABILITY OF OTHER LAW.—This chapter,

24 chapter 227, and Rule 32(c) of the Federal Rules of
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1 Criminal Procedure are the only laws and rules applicable

2 to proceedings under this section.

3 ‘‘(d) ENSURING AVAILABILITY OF PROPERTY OR AS4 SETS.—

5 ‘‘(1) IN GENERAL.—

6 ‘‘(A) RESTRAINING ORDER, INJUNCTION,

7 EXECUTION OF PERFORMANCE BOND.—Upon

8 application of the United States, the court may

9 enter a restraining order or injunction, require

10 the execution of a satisfactory performance

11 bond, or take any other action to preserve the

12 availability of property or assets necessary to

13 satisfy a criminal restitution order under this

14 subchapter. An order under this subparagraph

15 may be entered in the following circumstances:

16 ‘‘(i) Prior to the filing of an indict17 ment or information charging an offense

18 that may result in a criminal restitution

19 order, and upon the United States showing

20 that—

21 ‘‘(I) there is a substantial prob22 ability that the United States will ob23 tain a criminal restitution order;

24 ‘‘(II) the defendant has or is like25 ly to take action to dissipate or hide
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1 the property or assets of the defend2 ant; and

3 ‘‘(III) the need to preserve the

4 availability of the property or assets

5 through the requested order outweighs

6 the hardship of any party against

7 whom the order is entered.

8 ‘‘(ii) Upon the filing of an indictment

9 or information charging an offense that

10 may result in a criminal restitution order,

11 and upon the United States showing that

12 the defendant has or is likely to take ac13 tion to dissipate or hide the property or as14 sets of the defendant.

15 ‘‘(iii) Upon the conviction, or entry of

16 a guilty plea, to an indictment or informa17 tion charging an offense that may result in

18 a criminal restitution order, and upon the

19 United States showing that the defendant

20 may take action to dissipate or hide the

21 property or assets of the defendant or that

22 an order is necessary to marshal and de23 termine the property or assets of the de24 fendant.
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1 ‘‘(B) PERIOD OF EFFECTIVENESS.—An

2 order entered under subparagraph (A) shall be

3 effective for not more than 90 days, unless ex4 tended by the court for good cause shown or

5 unless an indictment or information described

6 in subparagraph (A)(ii) has been filed.

7 ‘‘(2) NOTICE OF ORDER.—

8 ‘‘(A) IN GENERAL.—Except as provided in

9 paragraph (3), an order entered under this sub10 section shall be after notice to persons appear11 ing to have an interest in the property and op12 portunity for a hearing, and upon the United

13 States carrying the burden of proof by a pre14 ponderance of the evidence.

15 ‘‘(B) ADMISSIBLE EVIDENCE.—The court

16 may receive and consider, at a hearing held

17 under this subsection, evidence and information

18 that would be inadmissible under the Federal

19 Rules of Evidence.

20 ‘‘(3) TEMPORARY RESTRAINING ORDER.—

21 ‘‘(A) IN GENERAL.—A temporary restrain22 ing order may be entered without notice or op23 portunity for a hearing if the United States

24 demonstrates that—
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1 ‘‘(i) there is probable cause to believe

2 that the property or assets with respect to

3 which the order is sought would be subject

4 to execution upon the entry of a criminal

5 restitution order;

6 ‘‘(ii) there is a substantial probability

7 that the United States will obtain a crimi8 nal restitution order; and

9 ‘‘(iii) the provision of notice would

10 jeopardize the availability of the property

11 or assets for execution.

12 ‘‘(B) EXPIRATION OF ORDER.—A tem13 porary order under this paragraph shall expire

14 not later than 10 days after the date on which

15 it is entered, unless—

16 ‘‘(i) the court grants an extension for

17 good cause shown; or

18 ‘‘(ii) the party against whom the

19 order is entered consents to an extension

20 for a longer period.

21 ‘‘(C) HEARING.—A hearing requested con22 cerning an order entered under this paragraph

23 shall be held at the earliest possible time, and

24 prior to the expiration of the temporary order.
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1 ‘‘(4) DISCLOSURE OF CERTAIN INFORMA2 TION.—

3 ‘‘(A) IN GENERAL.—Information concern4 ing the net worth, financial affairs, transactions

5 or interests of the defendant presented to the

6 grand jury may be disclosed to an attorney for

7 the Government assisting in the enforcement of

8 criminal restitution orders, for use in the per9 formance of the duties of that attorney.

10 ‘‘(B) USE OF CONSUMER CREDIT RE11 PORTS.—

12 ‘‘(i) IN GENERAL.—An attorney for

13 the Government responsible for the pros14 ecution of criminal offenses, or responsible

15 for the enforcement of criminal restitution

16 orders, may obtain and use consumer cred17 it reports to—

18 ‘‘(I) obtain an order under this

19 section;

20 ‘‘(II) determine the amount of

21 restitution that is appropriate; or

22 ‘‘(III) enforce a criminal restitu23 tion order.

24 ‘‘(ii) GRAND JURY SUBPOENA.—This

25 subparagraph does not limit the availabil-
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1 ity of grand jury subpoenas to obtain a

2 consumer credit report.

3 ‘‘(iii) PROBATION SERVICE.—Upon

4 conviction, a consumer credit report used

5 under this subparagraph may be furnished

6 to the United States Probation Service.

7 ‘‘(e) INFORMATION TO PROBATION SERVICE.—

8 ‘‘(1) IN GENERAL.—

9 ‘‘(A) PROVISION OF INFORMATION BY GOV10 ERNMENT.—Not later than 60 days after con11 viction, and in any event not later than 10 days

12 prior to sentencing, the attorney for the Gov13 ernment after consulting with all victims (when

14 practicable), shall promptly provide the proba15 tion service of the court all information readily

16 available to the attorney, including matters oc17 curring before the grand jury relating to the

18 identity of the victim or victims, the amount of

19 losses, and financial matters relating to the de20 fendant.

21 ‘‘(B) PROVISION OF INFORMATION BY DE22 FENDANTS.—Each defendant shall prepare and

23 file with the probation officer an affidavit fully

24 describing the financial resources of the defend25 ant, including a complete listing of all assets
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1 owned or controlled by the defendant as of the

2 date on which the defendant was arrested, the

3 financial needs and earning ability of the de4 fendant and the defendant’s dependents, and

5 any other information that the court requires

6 relating to such other factors as the court de7 termines to be appropriate.

8 ‘‘(C) NOTICE TO VICTIMS.—The attorney

9 for the Government shall, to the maximum ex10 tent practicable and as soon as practicable after

11 the provision of information by the Government

12 to the probation service under subparagraph

13 (A), provide notice to all victims. The notice

14 shall inform the victims of—

15 ‘‘(i) the offenses for which the defend16 ant was convicted;

17 ‘‘(ii) the amounts subject to restitu18 tion and any other information that is rel19 evant to restitution submitted to the pro20 bation service;

21 ‘‘(iii) the right of the victim to submit

22 information to the probation service con23 cerning the amount of the losses of the vic24 tim;
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1 ‘‘(iv) the scheduled date, time, and

2 place of the sentencing hearing;

3 ‘‘(v) the availability of a lien in favor

4 of the victim under subsection (n)(1)(D);

5 and

6 ‘‘(vi) the opportunity of the victim to

7 file a separate affidavit with the court

8 under subparagraph (E).

9 ‘‘(D) LIMITATIONS ON INFORMATION.—

10 Upon ex parte application to the court, and a

11 showing that the requirements of subparagraph

12 (A) may cause harm to any victim, or jeopard13 ize an ongoing investigation, the court may

14 limit the information to be provided to or

15 sought by the probation service of the court.

16 ‘‘(E) AFFIDAVIT OF OBJECTION.—If any

17 victim objects to any of the information pro18 vided to the probation service by the attorney

19 for the Government under this paragraph, the

20 victim may file a separate affidavit with the

21 court.

22 ‘‘(2) ADDITIONAL DOCUMENTATION OR TESTI23 MONY.—After reviewing the report of the probation

24 service of the court, the court may require additional

25 documentation or hear testimony. The privacy of
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1 any records filed, or testimony heard, under this sec2 tion shall be maintained to the greatest extent pos3 sible and those records may be filed or testimony

4 heard in camera.

5 ‘‘(3) ADDITIONAL TIME FOR DETERMINATION

6 OF LOSSES.—If the losses to the victim are not as7 certainable by the date that is 10 days prior to sen8 tencing as provided in paragraph (1), the United

9 States Attorney (or a designee of the United States

10 Attorney) shall so inform the court, and the court

11 shall set a date for the final determination of the

12 losses of the victim, not to exceed 90 days after sen13 tencing. If the losses to the victim cannot reasonably

14 be ascertained, the court shall determine an appro15 priate amount of restitution based on the available

16 information. If the victim subsequently discovers fur17 ther losses, the victim shall have 60 days after dis18 covery of those losses during which to petition the

19 court for an amended restitution order. The order

20 may be granted only upon a showing of good cause

21 for the failure to include those losses in the initial

22 claim for restitutionary relief.

23 ‘‘(4) REFERRAL TO MAGISTRATE OR SPECIAL

24 MASTER.—The court may refer any issue arising in

25 connection with a proposed order of restitution to a
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1 magistrate or special master for proposed findings of

2 fact and recommendations as to disposition, subject

3 to a de novo determination of the issue by the court.

4 ‘‘(5) INSURANCE OF VICTIM NOT CONSID5 ERED.—In no case shall the fact that a victim has

6 received or is entitled to receive compensation with

7 respect to a loss from insurance or any other source

8 be considered in determining the amount of restitu9 tion.

10 ‘‘(f) EVIDENTIARY STANDARD.—Any dispute as to

11 the proper amount or type of restitution shall be resolved

12 by the court by the preponderance of the evidence. The

13 burden of demonstrating the amount of the loss sustained

14 by a victim as a result of the offense shall be on the attor15 ney for the Government. The burden of demonstrating the

16 financial resources of the defendant and the financial

17 needs of the defendant and the dependents of the defend18 ant shall be on the defendant. The burden of demonstrat19 ing such other matters as the court deems appropriate

20 shall be upon the party designated by the court as justice

21 requires.

22 ‘‘(g) FACTORS FOR CONSIDERATION.—

23 ‘‘(1) IN GENERAL.—

24 ‘‘(A) ECONOMIC CIRCUMSTANCES OF VIC25 TIM NOT CONSIDERED.—In each order of res-
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1 titution, the court shall order restitution to each

2 victim in the full amount of the losses of each

3 victim as determined by the court and without

4 consideration of the economic circumstances of

5 the defendant.

6 ‘‘(B) AWARD OF REASONABLY ASCERTAIN7 ABLE LOSSES.—The court shall order restitu8 tion in the amount of the total loss that is rea9 sonably ascertainable, if—

10 ‘‘(i) the number of victims is too

11 great;

12 ‘‘(ii) the actual identity of the victims

13 cannot be ascertained; and

14 ‘‘(iii) or the full amount of the losses

15 of each victim cannot be reasonably

16 ascertained;

17 ‘‘(2) AMOUNT AND TIMING OF RESTITUTION.—

18 The restitution order shall be for a sum certain and

19 payable immediately.

20 ‘‘(3) NOMINAL PERIODIC PAYMENTS.—If the

21 court finds from facts on the record that the eco22 nomic circumstances of the defendant do not allow

23 and are not likely to allow the defendant to make

24 more than nominal payments under the restitution

25 order, the court shall direct the defendant to make
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1 nominal periodic payments in the amount the de2 fendant can reasonably be expected to pay by mak3 ing a diligent and bona fide effort toward the res4 titution order entered under paragraph (1). Nothing

5 in the paragraph shall impair the obligation of the

6 defendant to make full restitution under this sub7 section.

8 ‘‘(4) STATUS OF DEBT.—Notwithstanding any

9 payment schedule entered by the court under para10 graph (2), each order of restitution shall be a civil

11 debt, payable immediately, and subject to the en12 forcement procedures provided in subsection (n). In

13 no event shall a defendant incur any criminal pen14 alty for failure to make a restitution payment under

15 the restitution order because of the indigency of the

16 defendant.

17 ‘‘(h) VICTIM RIGHTS.—

18 ‘‘(1) NO PARTICIPATION REQUIRED.—No victim

19 shall be required to participate in any phase of a

20 restitution order. If a victim declines to receive res21 titution made mandatory by this title, the court shall

22 order that the share of the victim of any restitution

23 owed be deposited in the Crime Victims Fund in the

24 Treasury.
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1 ‘‘(2) ASSIGNMENT OF INTEREST.—A victim

2 may at any time assign the interest of the victim in

3 restitution payments to the Crime Victims Fund in

4 the Treasury without in any way impairing the obli5 gation of the defendant to make those payments.

6 ‘‘(3) VICTIMS NOT IDENTIFIED OR LOCATED.—

7 If the victim cannot be located or identified, the

8 court shall direct that the restitution payments be

9 made to the Crime Victims Fund of the Treasury.

10 This paragraph shall not be construed to impair the

11 obligation of the defendant to make those payments.

12 ‘‘(i) JOINT AND SEVERAL LIABILITY OF MULTIPLE

13 DEFENDANTS.—If the court finds that more than 1 de14 fendant has contributed to the loss of a victim, the court

15 may make each defendant jointly and severally liable for

16 payment of the full amount of restitution or may appor17 tion liability among the defendants to reflect the level of

18 contribution to the loss of the victim and economic cir19 cumstances of each defendant.

20 ‘‘(j) PRIORITY OF PAYMENTS.—If the court finds

21 that more than 1 victim has sustained a loss requiring

22 restitution by a defendant, the court may issue an order

23 of priority for restitution payments based on the type and

24 amount of the loss of the victim accounting for the eco25 nomic circumstances of each victim. In any case in which
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1 the United States is a victim, the court shall ensure that

2 all individual victims receive full restitution before the

3 United States receives any restitution.

4 ‘‘(k) INSURANCE.—

5 ‘‘(1) IN GENERAL.—If a victim has received or

6 is entitled to receive compensation with respect to a

7 loss from insurance or any other source, the court

8 shall order that restitution shall be paid to the per9 son who provided or is obligated to provide the com10 pensation, but the restitution order shall provide

11 that all restitution of victims required by the order

12 be paid to the victims before any restitution is paid

13 to any such provider of compensation.

14 ‘‘(2) REDUCTION OF AMOUNT.—Any amount

15 paid to a victim under an order of restitution shall

16 be reduced by any amount later recovered as com17 pensatory damages for the same loss by the victim

18 in—

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

20 ‘‘(B) any State civil proceeding, to the ex21 tent provided by the law of the State.

22 ‘‘(3) OTHER RESOURCES.—If a person obli23 gated to provide restitution receives substantial re24 sources from any source, including inheritance, set25 tlement, or other judgment, that person shall be re-
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1 quired to apply the value of those resources to any

2 restitution still owed.

3 ‘‘(l) MATERIAL CHANGES IN ECONOMIC STATUS OF

4 DEFENDANT.—The defendant shall notify the court and

5 the Attorney General of any material change in the eco6 nomic circumstances of the defendant that might affect

7 the ability of the defendant to pay restitution. Upon re8 ceipt of the notification, the court may, on its own motion,

9 or the motion of any party, including the victim, adjust

10 the payment schedule, or require immediate payment in

11 full, as the interests of justice require.

12 ‘‘(m) JURISDICTION OF COURT.—

13 ‘‘(1) IN GENERAL.—The court shall retain ju14 risdiction over any criminal restitution judgment or

15 amended criminal restitution judgment for a period

16 of 5 years from the date the sentence was imposed.

17 This limitation shall be tolled during any period of

18 time that the defendant—

19 ‘‘(A) was incarcerated;

20 ‘‘(B) was a fugitive; or

21 ‘‘(C) was granted a stay that prevented the

22 enforcement of the restitution order.

23 ‘‘(2) FAILURE TO PAY.—While within the juris24 diction of the court, if the defendant knowingly fails

25 to make a bona fide effort to pay whatever amount
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1 of restitution is ordered by the court, or knowingly

2 and willfully refuses to pay restitution, the court

3 may—

4 ‘‘(A) modify the terms or conditions of the

5 probation or supervised release of the defend6 ant;

7 ‘‘(B) extend the probation or supervised

8 release of the defendant until a date not later

9 than 10 years from the date the sentence was

10 imposed;

11 ‘‘(C) revoke the probation or supervised re12 lease of the defendant;

13 ‘‘(D) hold the defendant in contempt; or

14 ‘‘(E) increase the sentence of the defend15 ant to any sentence that might originally have

16 been imposed under the applicable statute,

17 without regard to the sentencing guidelines.

18 ‘‘(n) ENFORCEMENT OF ORDER OF RESTITUTION.—

19 ‘‘(1) IN GENERAL.—An order of restitution may

20 be enforced—

21 ‘‘(A) through civil or administrative meth22 ods during the period that the restitution lien

23 provided for in section 3613 of title 18, United

24 States Code, is enforceable;
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1 ‘‘(B) by the United States in the manner

2 provided for in subchapter C of chapter 227

3 and subchapter B of chapter 229;

4 ‘‘(C) by the United States regardless of

5 whether for the benefit of the United States, in

6 accordance with the procedures of chapter 176

7 of part VI of title 28, or in accordance with any

8 other administrative or civil enforcement means

9 available to the United States to enforce a debt

10 due the United States; or

11 ‘‘(D) by any victim named in the restitu12 tion order as a lien under section 1962 of title

13 28.

14 ‘‘(2) ESTOPPEL.—A conviction of a defendant

15 for an offense giving rise to restitution under this

16 section shall estop the defendant from denying the

17 essential allegations of that offense in any subse18 quent Federal civil proceeding or State civil proceed19 ing, regardless of any State law precluding estoppel

20 for a lack of mutuality. The victim, in the subse21 quent proceeding, shall not be precluded from estab22 lishing a loss that is greater than the loss deter23 mined by the court in the earlier criminal proceed24 ing.’’.
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1 SEC. 3. CIVIL REMEDIES.

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

3 amended—

4 (1) in the section heading, by inserting ‘‘or res5 titution’’ after ‘‘fine’’; and

6 (2) in subsection (a)—

7 (A) by striking ‘‘The United States’’ and

8 inserting the following:

9 ‘‘(1) FINES.—The United States’’;

10 (B) by redesignating paragraphs (1), (2),

11 and (3) as subparagraphs (A), (B), and (C), re12 spectively, and indenting accordingly; and

13 (C) by adding at the end the following:

14 ‘‘(2) RESTITUTION.—

15 ‘‘(A) IN GENERAL.—

16 ‘‘(i) LIEN.—An order of restitution

17 shall operate as a lien in favor of the

18 United States for its benefit or for the

19 benefit of any non-Federal victims against

20 all property belonging to the defendant or

21 defendants.

22 ‘‘(ii) TIMING.—The lien shall arise at

23 the time of the entry of judgment or order

24 and shall continue until the liability is sat25 isfied, remitted, or set aside, or until it be26 comes otherwise unenforceable.
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1 ‘‘(iii) PERSONS AGAINST WHOM LIEN

2 APPLIES.—The lien shall apply against all

3 property and property interests—

4 ‘‘(I) owned by the defendant or

5 defendants at the time of arrest; and

6 ‘‘(II) subsequently acquired by

7 the defendant or defendants.

8 ‘‘(B) ENTRY OF LIEN.—The lien shall be

9 entered in the name of the United States on be10 half of all ascertained victims, unascertained

11 victims, victims entitled to restitution who

12 choose not to participate in the restitution pro13 gram and victims entitled to restitution who

14 cannot assert their interests in the lien for any

15 reason.

16 ‘‘(3) JOINTLY HELD PROPERTY.—

17 ‘‘(A) IN GENERAL.—

18 ‘‘(i) DIVISION AND SALE OF PROP19 ERTY.—If the court enforcing an order of

20 restitution under this section determines

21 that the defendant has an interest in prop22 erty with another, and that the defendant

23 cannot satisfy the restitution order from

24 his or her separate property or income, the

25 court may, after considering all of the eq-
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1 uities, order that jointly owned property be

2 divided and sold, upon such conditions as

3 the court deems just, notwithstanding any

4 Federal or State law to the contrary.

5 ‘‘(ii) PROTECTION OF INNOCENT PAR6 TIES.—The court shall take care to protect

7 the reasonable and legitimate interests of

8 the innocent spouse and minor children of

9 the defendant, especially real property used

10 as the actual home of that innocent spouse

11 and minor children, except to the extent

12 that the court determines that the interest

13 of that innocent spouse and children is the

14 product of the criminal activity of which

15 the defendant has been convicted, or is the

16 result of a fraudulent transfer.

17 ‘‘(B) FRAUDULENT TRANSFERS.—In de18 termining whether there was a fraudulent

19 transfer, the court shall consider whether the

20 debtor made the transfer—

21 ‘‘(i) with actual intent to hinder,

22 delay, or defraud the United States or

23 other victim; or
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1 ‘‘(ii) without receiving a reasonably

2 equivalent value in exchange for the trans3 fer.

4 ‘‘(C) CONSIDERATIONS FOR PROTECTION

5 OF INNOCENT PARTIES.—In determining what

6 portion of the jointly owned property shall be

7 set aside for the innocent spouse or children of

8 the defendant, or whether to have sold or di9 vided the jointly held property, the court shall

10 consider—

11 ‘‘(i) the contributions of the other

12 joint owner to the value of the property;

13 ‘‘(ii) the reasonable expectation of the

14 other joint owner to be able to enjoy the

15 continued use of the property; and

16 ‘‘(iii) the economic circumstances and

17 needs of the defendant and dependents of

18 the defendant and the economic cir19 cumstances and needs of the victim and

20 the dependents of the victim.’’.

21 SEC. 4. FINES.

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

23 amended to read as follows:

24 ‘‘(b) PAYMENTS; EFFECT OF INDIGENCY.—Any fine,

25 special assessment, restitution, or cost shall be for a sum
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1 certain and shall be payable immediately. In no event shall

2 a defendant incur any criminal penalty for failure to make

3 a payment on a fine, special assessment, restitution, or

4 cost as a result of the indigency of the defendant.’’.

5 SEC. 5. RESENTENCING.

6 Section 3614(a) of title 18, United States Code, is

7 amended by inserting before the period at the end the fol8 lowing: ‘‘or may increase the sentence of the defendant

9 to any sentence that might originally have been imposed

10 under the applicable statute’’.

Æ