109TH CONGRESS

2D SESSION S. 4055

AN ACT

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’’.
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1 SEC. 2. EFFECT OF DEATH OF A DEFENDANT IN FEDERAL

2 CRIMINAL PROCEEDINGS.

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

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

5 end the following:

6 ‘‘§ 3560. Effect of death of a defendant in Federal

7 criminal proceedings

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

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

10 convicted of a Federal criminal offense shall not be the

11 basis for abating or otherwise invalidating a plea of guilty

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

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

14 that defendant, or for dismissing or otherwise invalidating

15 the indictment, information, or complaint on which such

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

17 provided in this section.

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

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

20 dies after a plea of guilty or nolo contendere has

21 been accepted or a verdict has been returned, but

22 before judgment is entered, the court shall enter a

23 judgment incorporating the plea of guilty or nolo

24 contendere or the verdict, with the notation that the

25 defendant died before the judgment was entered.

26 ‘‘(2) PUNITIVE SANCTIONS.—
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1 ‘‘(A) DEATH BEFORE SENTENCE AN2 NOUNCED.—If a defendant dies after a plea of

3 guilty or nolo contendere has been accepted or

4 a verdict has been returned and before a sen5 tence has been announced, no sentence of pro6 bation, supervision, or imprisonment may be

7 imposed, no criminal forfeiture may be ordered,

8 and no liability for a fine or special assessment

9 may be imposed on the defendant or the de10 fendant’s estate.

11 ‘‘(B) DEATH AFTER SENTENCING OR

12 JUDGMENT.—The death of a defendant after a

13 sentence has been announced or a judgment has

14 been entered, and before that defendant has ex15 hausted or waived the right to a direct appeal—

16 ‘‘(i) shall terminate any term of pro17 bation, supervision, or imprisonment, and

18 shall terminate the liability of that defend19 ant to pay any amount remaining due of a

20 criminal forfeiture, of a fine under section

21 3613(b), or of a special assessment under

22 section 3013; and

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

24 portion of any criminal forfeiture, fine, or

25 special assessment already paid.
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1 ‘‘(3) RESTITUTION.—

2 ‘‘(A) DEATH BEFORE SENTENCE AN3 NOUNCED.—If a defendant dies after a plea of

4 guilty or nolo contendere has been accepted or

5 a verdict has been returned and before a sen6 tence has been announced, the court shall, upon

7 a motion under subsection (c)(2) by the Gov8 ernment or any victim of that defendant’s

9 crime, commence a special restitution pro10 ceeding at which the court shall adjudicate and

11 enter a final order of restitution against the es12 tate of that defendant in an amount equal to

13 the amount that would have been imposed if

14 that defendant were alive.

15 ‘‘(B) DEATH AFTER SENTENCING OR

16 JUDGMENT.—The death of a defendant after a

17 sentence has been announced shall not be a

18 basis for abating or otherwise invalidating res19 titution announced at sentencing or ordered

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

21 this title or any other provision of law.

22 ‘‘(4) CIVIL PROCEEDINGS.—The death of a de23 fendant after a plea of guilty or nolo contendere has

24 been accepted, a verdict returned, a sentence an25 nounced, or a judgment entered, shall not prevent
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1 the use of that plea, verdict, sentence, or judgment

2 in civil proceedings, to the extent otherwise per3 mitted by law.

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

5 ‘‘(1) IN GENERAL.—Except as provided in para6 graph (2), after the death of a defendant convicted

7 in a criminal case—

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

9 on behalf of that defendant or the personal rep10 resentative or estate of that defendant, the Gov11 ernment, or a victim of that defendant’s crime

12 seeking to challenge or reinstate a plea of guilty

13 or nolo contendere accepted, a verdict returned,

14 a sentence announced, or a judgment entered

15 prior to the death of that defendant shall be

16 filed in that case after the death of that defend17 ant; and

18 ‘‘(B) any pending motion, petition, or ap19 peal in that case shall be dismissed with the no20 tation that the dismissal is due to the death of

21 the defendant.

22 ‘‘(2) EXCEPTIONS.—

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

24 defendant convicted in a criminal case, the per25 sonal representative of that defendant, the Gov-
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1 ernment, or any victim of that defendant’s

2 crime may file or pursue an otherwise permis3 sible direct appeal, petition for mandamus or a

4 writ of certiorari, or an otherwise permissible

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

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

7 or motion raises an otherwise permissible claim

8 to—

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

10 proceeding, a final order of restitution

11 under subsection (b)(3);

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

13 reinstate, or challenge any order of restitu14 tion; or

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

16 plea of guilty or nolo contendere, sentence,

17 or judgment on which—

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

19 or

20 ‘‘(II) restitution is being or will

21 be sought by an appeal, petition, or

22 motion under this paragraph.

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

24 After the death of a defendant convicted in a

25 criminal case, the personal representative of
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1 that defendant, the Government, or any victim

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

3 otherwise permissible direct appeal, petition for

4 mandamus or a writ of certiorari, or an other5 wise permissible motion under the Federal

6 Rules of Criminal Procedure, to the extent that

7 the appeal, petition, or motion raises an other8 wise permissible claim to challenge or reinstate

9 a verdict, plea of guilty or nolo contendere, sen10 tence, or judgment that the appellant, peti11 tioner, or movant shows by a preponderance of

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

13 or reasonably anticipated civil proceeding, in14 cluding civil forfeiture proceedings.

15 ‘‘(C) COLLATERAL CONSEQUENCES.—

16 ‘‘(i) IN GENERAL.—Except as pro17 vided in subparagraphs (A) and (B), the

18 Government may not restrict any Federal

19 benefits or impose collateral consequences

20 on the estate or a family member of a de21 ceased defendant based solely on the con22 viction of a defendant who died before that

23 defendant exhausted or waived the right to

24 direct appeal unless, not later than 90

25 days after the death of that defendant, the
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1 Government gives notice to that estate or

2 family member of the intent of the Govern3 ment to take such action.

4 ‘‘(ii) PERSONAL REPRESENTATIVE.—

5 If the Government gives notice under

6 clause (i), the court shall appoint a per7 sonal representative for the deceased de8 fendant that is the subject of that notice,

9 if not otherwise appointed, under section

10 (d)(2)(A).

11 ‘‘(iii) TOLLING.—If the Government

12 gives notice under clause (i), any filing

13 deadline that might otherwise apply

14 against the defendant, the estate of the de15 fendant, or a family member of the defend16 ant shall be tolled until the date of the ap17 pointment of that defendant’s personal

18 representative under clause (ii).

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

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

21 shall not be a basis for relief.

22 ‘‘(d) PROCEDURES REGARDING CONTINUING LITIGA23 TION.—

24 ‘‘(1) IN GENERAL.—The standards and proce25 dures for a permitted appeal, petition, motion, or
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1 other proceeding under subsection (c)(2) shall be the

2 standards and procedures otherwise provided by law,

3 except that the personal representative of the de4 fendant shall be substituted for the defendant.

5 ‘‘(2) SPECIAL PROCEDURES.—If continuing liti6 gation is initiated or could be initiated under sub7 section (c)(2), the following procedures shall apply:

8 ‘‘(A) NOTICE AND APPOINTMENT OF PER9 SONAL REPRESENTATIVE.—The district court

10 before which the criminal case was filed (or the

11 appellate court if the matter is pending on di12 rect appeal) shall—

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

14 convicted defendant under section

15 3771(a)(2), and to the personal represent16 ative of that defendant or, if there is none,

17 the next of kin of that defendant; and

18 ‘‘(ii) appoint a personal representative

19 for that defendant, if not otherwise ap20 pointed.

21 ‘‘(B) COUNSEL.—Counsel shall be ap22 pointed for the personal representative of a de23 fendant convicted in a criminal case who dies if

24 counsel would have been available to that de25 fendant, or if the personal representative of
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1 that defendant requests counsel and otherwise

2 qualifies for the appointment of counsel, under

3 section 3006A.

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

5 applicable deadline for the filing of any motion,

6 petition, or appeal during the period beginning

7 on the date of the death of a defendant con8 victed in a criminal case and ending on the

9 later of—

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

11 that defendant’s personal representative;

12 or

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

14 appointment of counsel for that personal

15 representative.

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

17 been fully collected on the date on which a de18 fendant convicted in a criminal case dies—

19 ‘‘(i) any amount owed under a restitu20 tion order (whether issued before or after

21 the death of that defendant) shall be col22 lectible from any property from which the

23 restitution could have been collected if that

24 defendant had survived, regardless of
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1 whether that property is included in the es2 tate of that defendant;

3 ‘‘(ii) any restitution protective order

4 in effect on the date of the death of that

5 defendant shall continue in effect unless

6 modified by the court after hearing or pur7 suant to a motion by the personal rep8 resentative of that defendant, the Govern9 ment, or any victim of that defendant’s

10 crime; and

11 ‘‘(iii) upon motion by the Government

12 or any victim of that defendant’s crime,

13 the court shall take any action necessary to

14 preserve the availability of property for

15 restitution under this section.

16 ‘‘(e) FORFEITURE.—

17 ‘‘(1) IN GENERAL.—Except as provided in para18 graph (2), the death of an individual does not affect

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

20 pursue, civil forfeiture of property as authorized by

21 law.

22 ‘‘(2) TOLLING OF LIMITATIONS FOR CIVIL FOR23 FEITURE.—Notwithstanding the expiration of any

24 civil forfeiture statute of limitations or any time lim25 itation set forth in section 983(a) of this title, not
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1 later than the later of the time period otherwise au2 thorized by law and 2 years after the date of the

3 death of an individual against whom a criminal in4 dictment alleging forfeiture is pending, the Govern5 ment may commence civil forfeiture proceedings

6 against any interest in any property alleged to be

7 forfeitable in the indictment of that individual.

8 ‘‘(f) DEFINITIONS.—In this section—

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

10 guilty or nolo contendere, means that a court has

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

12 Criminal Procedure, that the plea is voluntary and

13 supported by a factual basis, regardless of whether

14 final acceptance of that plea may have been deferred

15 pending review of a presentence report or otherwise;

16 ‘‘(2) the term ‘announced’, relating to a sen17 tence, means that the sentence has been orally stat18 ed in open court;

19 ‘‘(3) the term ‘convicted’ refers to a

20 defendant—

21 ‘‘(A) whose plea of guilty or nolo

22 contendere has been accepted; or

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

24 been returned;
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1 ‘‘(4) the term ‘direct appeal’ means an appeal

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

3 Federal Rules of Appellate Procedure, from the

4 entry of the judgment or order of restitution, includ5 ing review by the Supreme Court of the United

6 States; and

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

8 means that the verdict has been orally stated in

9 open court.’’.

10 (b) CONFORMING AMENDMENT.—The table of sec11 tions for chapter 227 of title 18, United States Code, is

12 amended by adding at the end the following:

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

13 SEC. 3. EFFECTIVE DATE.

14 The amendments made by this Act shall apply to any

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

16 SEC. 4. SEVERABILITY.

17 If any provision of this Act, any amendment made

18 by this Act, or the application of such provision or amend19 ment to any person or circumstance is held to be unconsti20 tutional, the remainder of the provisions of this Act, the

21 amendments made by this Act, and the application of such
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1 provisions or amendments to any person or circumstance

2 shall not be affected.

Passed the Senate December 9 (legislative day, December 8), 2006.

Attest:

Secretary.
109TH CONGRESS

2D SESSION S. 4055

AN ACT

To address the effect of the death of a defendant

in Federal criminal proceedings.