II 

109TH CONGRESS 

2D SESSION S. 4055 

To address the effect of the death of a defendant in Federal criminal 

proceedings. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 15, 2006 

Mrs. FEINSTEIN (for herself and Mr. SESSIONS) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To address the effect of the death of a defendant in Federal 

criminal proceedings. 

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 ‘‘Preserving Crime Vic5 tims’ Restitution Act of 2006’’. 

6 SEC. 2. EFFECT OF DEATH OF A DEFENDANT IN FEDERAL 

7 CRIMINAL PROCEEDINGS. 

8 (a) IN GENERAL.—Subchapter A of chapter 227 of 

9 title 18, United States Code, is amended by adding at the 

10 end the following: 


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1 ‘‘§ 3560. Effect of death of a defendant in Federal 

2 criminal proceedings 

3 ‘‘(a) GENERAL RULE.—Notwithstanding any other 

4 provision of law, the death of a defendant who has been 

5 convicted of a Federal criminal offense shall not be the 

6 basis for abating or otherwise invalidating a plea of guilty 

7 or nolo contendere accepted, a verdict returned, a sentence 

8 announced, or a judgment entered prior to the death of 

9 that defendant, or for dismissing or otherwise invalidating 

10 the indictment, information, or complaint on which such 

11 a plea, verdict, sentence, or judgment is based, except as 

12 provided in this section. 

13 ‘‘(b) DEATH AFTER PLEA OR VERDICT.— 

14 ‘‘(1) ENTRY OF JUDGMENT.—If a defendant 

15 dies after a plea of guilty or nolo contendere has 

16 been accepted or a verdict has been returned, but 

17 before judgment is entered, the court shall enter a 

18 judgment incorporating the plea of guilty or nolo 

19 contendere or the verdict, with the notation that the 

20 defendant died before the judgment was entered. 

21 ‘‘(2) PUNITIVE SANCTIONS.— 

22 ‘‘(A) DEATH BEFORE SENTENCE AN23 NOUNCED.—If a defendant dies after a plea of 

24 guilty or nolo contendere has been accepted or 

25 a verdict has been returned and before a sen26 tence has been announced, no sentence of proVerDate Aug 31 2005 00:07 Nov 17, 2006 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4055.IS S4055

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1 bation, supervision, or imprisonment may be 

2 imposed, no criminal forfeiture may be ordered, 

3 and no liability for a fine or special assessment 

4 may be imposed on the defendant or the de5 fendant’s estate. 

6 ‘‘(B) DEATH AFTER SENTENCING OR

7 JUDGMENT.—The death of a defendant after a 

8 sentence has been announced or a judgment has 

9 been entered, and before that defendant has ex10 hausted or waived the right to a direct appeal— 

11 ‘‘(i) shall terminate any term of pro12 bation, supervision, or imprisonment, and 

13 shall terminate the liability of that defend14 ant to pay any amount remaining due of a 

15 criminal forfeiture, of a fine under section 

16 3613(b), or of a special assessment under 

17 section 3013; and 

18 ‘‘(ii) shall not require return of any 

19 portion of any criminal forfeiture, fine, or 

20 special assessment already paid. 

21 ‘‘(3) RESTITUTION.— 

22 ‘‘(A) DEATH BEFORE SENTENCE AN23 NOUNCED.—If a defendant dies after a plea of 

24 guilty or nolo contendere has been accepted or 

25 a verdict has been returned and before a senVerDate Aug 31 2005 00:07 Nov 17, 2006 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4055.IS S4055

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1 tence has been announced, the court shall, upon 

2 a motion under subsection (c)(2) by the Gov3 ernment or any victim of that defendant’s 

4 crime, commence a special restitution pro5 ceeding at which the court shall adjudicate and 

6 enter a final order of restitution against the es7 tate of that defendant in an amount equal to 

8 the amount that would have been imposed if 

9 that defendant were alive. 

10 ‘‘(B) DEATH AFTER SENTENCING OR

11 JUDGMENT.—The death of a defendant after a 

12 sentence has been announced shall not be a 

13 basis for abating or otherwise invalidating res14 titution announced at sentencing or ordered 

15 after sentencing under section 3664(d)(5) of 

16 this title or any other provision of law. 

17 ‘‘(4) CIVIL PROCEEDINGS.—The death of a de18 fendant after a plea of guilty or nolo contendere has 

19 been accepted, a verdict returned, a sentence an20 nounced, or a judgment entered, shall not prevent 

21 the use of that plea, verdict, sentence, or judgment 

22 in civil proceedings, to the extent otherwise per23 mitted by law. 

24 ‘‘(c) APPEALS, MOTIONS, AND PETITIONS.— 


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1 ‘‘(1) IN GENERAL.—Except as provided in para2 graph (2), after the death of a defendant convicted 

3 in a criminal case— 

4 ‘‘(A) no appeal, motion, or petition by or 

5 on behalf of that defendant or the personal rep6 resentative or estate of that defendant, the Gov7 ernment, or a victim of that defendant’s crime 

8 seeking to challenge or reinstate a plea of guilty 

9 or nolo contendere accepted, a verdict returned, 

10 a sentence announced, or a judgment entered 

11 prior to the death of that defendant shall be 

12 filed in that case after the death of that defend13 ant; and 

14 ‘‘(B) any pending motion, petition, or ap15 peal in that case shall be dismissed with the no16 tation that the dismissal is due to the death of 

17 the defendant. 

18 ‘‘(2) EXCEPTIONS.— 

19 ‘‘(A) RESTITUTION.—After the death of a 

20 defendant convicted in a criminal case, the per21 sonal representative of that defendant, the Gov22 ernment, or any victim of that defendant’s 

23 crime may file or pursue an otherwise permis24 sible direct appeal, petition for mandamus or a 

25 writ of certiorari, or an otherwise permissible 


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1 motion described in section 3663, 3663A, 3664, 

2 or 3771, to the extent that the appeal, petition, 

3 or motion raises an otherwise permissible claim 

4 to— 

5 ‘‘(i) obtain, in a special restitution 

6 proceeding, a final order of restitution 

7 under subsection (b)(3); 

8 ‘‘(ii) enforce, correct, amend, adjust, 

9 reinstate, or challenge any order of restitu10 tion; or 

11 ‘‘(iii) challenge or reinstate a verdict, 

12 plea of guilty or nolo contendere, sentence, 

13 or judgment on which— 

14 ‘‘(I) a restitution order is based; 

15 or 

16 ‘‘(II) restitution is being or will 

17 be sought by an appeal, petition, or 

18 motion under this paragraph. 

19 ‘‘(B) OTHER CIVIL ACTIONS AFFECTED.— 

20 After the death of a defendant convicted in a 

21 criminal case, the personal representative of 

22 that defendant, the Government, or any victim 

23 of that defendant’s crime may file or pursue an 

24 otherwise permissible direct appeal, petition for 

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1 wise permissible motion under the Federal 

2 Rules of Criminal Procedure, to the extent that 

3 the appeal, petition, or motion raises an other4 wise permissible claim to challenge or reinstate 

5 a verdict, plea of guilty or nolo contendere, sen6 tence, or judgment that the appellant, peti7 tioner, or movant shows by a preponderance of 

8 the evidence is, or will be, material in a pending 

9 or reasonably anticipated civil proceeding, in10 cluding civil forfeiture proceedings. 

11 ‘‘(C) COLLATERAL CONSEQUENCES.— 

12 ‘‘(i) IN GENERAL.—Except as pro13 vided in subparagraphs (A) and (B), the 

14 Government may not restrict any Federal 

15 benefits or impose collateral consequences 

16 on the estate or a family member of a de17 ceased defendant based solely on the con18 viction of a defendant who died before that 

19 defendant exhausted or waived the right to 

20 direct appeal unless, not later than 90 

21 days after the death of that defendant, the 

22 Government gives notice to that estate or 

23 family member of the intent of the Govern24 ment to take such action. 


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1 ‘‘(ii) PERSONAL REPRESENTATIVE.— 

2 If the Government gives notice under 

3 clause (i), the court shall appoint a per4 sonal representative for the deceased de5 fendant that is the subject of that notice, 

6 if not otherwise appointed, under section 

7 (d)(2)(A). 

8 ‘‘(iii) TOLLING.—If the Government 

9 gives notice under clause (i), any filing 

10 deadline that might otherwise apply 

11 against the defendant, the estate of the de12 fendant, or a family member of the defend13 ant shall be tolled until the date of the ap14 pointment of that defendant’s personal 

15 representative under clause (ii). 

16 ‘‘(3) BASIS.—In any appeal, petition, or motion 

17 under paragraph (2), the death of the defendant 

18 shall not be a basis for relief. 

19 ‘‘(d) PROCEDURES REGARDING CONTINUING LITIGA20 TION.— 

21 ‘‘(1) IN GENERAL.—The standards and proce22 dures for a permitted appeal, petition, motion, or 

23 other proceeding under subsection (c)(2) shall be the 

24 standards and procedures otherwise provided by law, 


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1 except that the personal representative of the de2 fendant shall be substituted for the defendant. 

3 ‘‘(2) SPECIAL PROCEDURES.—If continuing liti4 gation is initiated or could be initiated under sub5 section (c)(2), the following procedures shall apply: 

6 ‘‘(A) NOTICE AND APPOINTMENT OF PER7 SONAL REPRESENTATIVE.—The district court 

8 before which the criminal case was filed (or the 

9 appellate court if the matter is pending on di10 rect appeal) shall— 

11 ‘‘(i) give notice to any victim of the 

12 convicted defendant under section 

13 3771(a)(2), and to the personal represent14 ative of that defendant or, if there is none, 

15 the next of kin of that defendant; and 

16 ‘‘(ii) appoint a personal representative 

17 for that defendant, if not otherwise ap18 pointed. 

19 ‘‘(B) COUNSEL.—Counsel shall be ap20 pointed for the personal representative of a de21 fendant convicted in a criminal case who dies if 

22 counsel would have been available to that de23 fendant, or if the personal representative of 

24 that defendant requests counsel and otherwise 


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1 qualifies for the appointment of counsel, under 

2 section 3006A. 

3 ‘‘(C) TOLLING.—The court shall toll any 

4 applicable deadline for the filing of any motion, 

5 petition, or appeal during the period beginning 

6 on the date of the death of a defendant con7 victed in a criminal case and ending on the 

8 later of— 

9 ‘‘(i) the date of the appointment of 

10 that defendant’s personal representative; 

11 or 

12 ‘‘(ii) where applicable, the date of the 

13 appointment of counsel for that personal 

14 representative. 

15 ‘‘(D) RESTITUTION.—If restitution has not 

16 been fully collected on the date on which a de17 fendant convicted in a criminal case dies— 

18 ‘‘(i) any amount owed under a restitu19 tion order (whether issued before or after 

20 the death of that defendant) shall be col21 lectible from any property from which the 

22 restitution could have been collected if that 

23 defendant had survived, regardless of 

24 whether that property is included in the es25 tate of that defendant; 


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1 ‘‘(ii) any restitution protective order 

2 in effect on the date of the death of that 

3 defendant shall continue in effect unless 

4 modified by the court after hearing or pur5 suant to a motion by the personal rep6 resentative of that defendant, the Govern7 ment, or any victim of that defendant’s 

8 crime; and 

9 ‘‘(iii) upon motion by the Government 

10 or any victim of that defendant’s crime, 

11 the court shall take any action necessary to 

12 preserve the availability of property for 

13 restitution under this section. 

14 ‘‘(e) FORFEITURE.— 

15 ‘‘(1) IN GENERAL.—Except as provided in para16 graph (2), the death of an individual does not affect 

17 the Government’s ability to seek, or to continue to 

18 pursue, civil forfeiture of property as authorized by 

19 law. 

20 ‘‘(2) TOLLING OF LIMITATIONS FOR CIVIL FOR21 FEITURE.—Notwithstanding the expiration of any 

22 civil forfeiture statute of limitations or any time lim23 itation set forth in section 983(a) of this title, not 

24 later than the later of the time period otherwise au25 thorized by law and 2 years after the date of the 


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1 death of an individual against whom a criminal in2 dictment alleging forfeiture is pending, the Govern3 ment may commence civil forfeiture proceedings 

4 against any interest in any property alleged to be 

5 forfeitable in the indictment of that individual. 

6 ‘‘(f) DEFINITIONS.—In this section— 

7 ‘‘(1) the term ‘accepted’, relating to a plea of 

8 guilty or nolo contendere, means that a court has 

9 determined, under rule 11(b) of the Federal Rules of 

10 Criminal Procedure, that the plea is voluntary and 

11 supported by a factual basis, regardless of whether 

12 final acceptance of that plea may have been deferred 

13 pending review of a presentence report or otherwise; 

14 ‘‘(2) the term ‘announced’, relating to a sen15 tence, means that the sentence has been orally stat16 ed in open court; 

17 ‘‘(3) the term ‘convicted’ refers to a defend18 ant— 

19 ‘‘(A) whose plea of guilty or nolo 

20 contendere has been accepted; or 

21 ‘‘(B) against whom a verdict of guilty has 

22 been returned; 

23 ‘‘(4) the term ‘direct appeal’ means an appeal 

24 filed, within the period provided by rule 4(b) of the 

25 Federal Rules of Appellate Procedure, from the 


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1 entry of the judgment or order of restitution, includ2 ing review by the Supreme Court of the United 

3 States; and 

4 ‘‘(5) the term ‘returned’, relating to a verdict, 

5 means that the verdict has been orally stated in 

6 open court.’’. 

7 (b) CONFORMING AMENDMENT.—The table of sec8 tions for chapter 227 of title 18, United States Code, is 

9 amended by adding at the end the following: 

‘‘3560. Effect of death of a defendant in Federal criminal proceedings.’’. 

10 SEC. 3. EFFECTIVE DATE. 

11 The amendments made by this Act shall apply to any 

12 criminal case or appeal pending on or after July 1, 2006. 

13 SEC. 4. SEVERABILITY. 

14 If any provision of this Act, any amendment made 

15 by this Act, or the application of such provision or amend16 ment to any person or circumstance is held to be unconsti17 tutional, the remainder of the provisions of this Act, the 

18 amendments made by this Act, and the application of such 

19 provisions or amendments to any person or circumstance 

20 shall not be affected. 

Æ 


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