Victim Restitution Enforcement Act of 1999 - Amends the Federal criminal code to revise procedures for the issuance and enforcement of restitution orders. Directs the court to: (1) order the probation service of the court to obtain and include in its presentence report, or in a separate report, information sufficient for the court to exercise its discretion in fashioning a restitution order (which shall include a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant); and (2) disclose to the defendant and the attorney for the Government all portions of the report pertaining to such matters.
Makes specified provisions of the Federal criminal code and Rule 32(c) of the Federal Rules of Criminal Procedure the only laws and rules applicable to proceedings for the issuance and enforcement of restitution orders.
Authorizes the court, upon application of the United States, to enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property or assets necessary to satisfy a criminal restitution order, if specified circumstances apply.
Sets forth provisions regarding: (1) notice requirements; (2) evidence and information that the court may consider at a hearing; (3) the use of temporary restraining orders; (4) disclosure of financial information regarding the defendant; (5) the use of consumer credit reports; and (6) timetables for the attorney for the Government to provide the probation service of the court with information available to the attorney, including matters occurring before the grand jury relating to the identity of the victims, the amount of losses, and financial matters relating to the defendant.
Directs the attorney for the Government to provide notice to all victims as soon as practicable. Authorizes: (1) the court to limit the information to be provided or sought by the probation service under specified circumstances; (2) a victim who objects to any information provided to the probation service by the attorney for the Government to file a separate affidavit with the court; and (3) the court to require additional documentation or hear testimony after reviewing the report of the probation service. Provides for the privacy of records filed and testimony heard and permits records to be filed or testimony to be heard in camera.
Establishes procedures regarding the court's ascertaining of the victims' losses. Permits the court to refer any issue arising in connection with a proposed restitution order to a magistrate or special master for proposed findings of fact and recommendations as to disposition, subject to a de novo determination of the issue by the court. Prohibits consideration of compensation for losses from insurance or other sources. Requires that the court resolve any restitution dispute by the preponderance of evidence.
Directs the court to order restitution to each victim in the full amount of each victim's losses as determined by the court without consideration of the defendant's economic circumstances. Sets forth provisions regarding situations where the amount of the loss is not reasonably ascertainable, and where there is more than one defendant. Specifies that no victim shall be required to participate in any phase of a restitution order.
Requires the defendant to notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution. Authorizes the court to adjust the payment schedule.
Sets forth provisions regarding: (1) court retention of jurisdiction over criminal restitution judgments; and (2) enforcement of restitution orders.
Specifies that: (1) a conviction of a defendant for an offense giving rise to restitution shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding or State civil proceeding, regardless of any State law precluding estoppel for a lack of mutuality; and (2) the victim, in the subsequent proceeding, shall not be precluded from establishing a loss that is greater than that determined by the court in the earlier criminal proceeding.
(Sec. 3) Adds restitution to a provision governing the post-sentence administration of fines. Provides that an order of restitution shall operate as a lien in favor of the United States for its benefit or for the benefit of any non-Federal victims against all property belonging to the defendant.
Authorizes the court, in enforcing a restitution order, to order jointly owned property divided and sold, subject to specified requirements.
(Sec. 4) Specifies that a defendant shall not incur any criminal penalty for failure to make a payment on a fine, special assessment, restitution, or cost because of the defendant's indigency.
(Sec. 5) Authorizes the court, where a defendant knowingly fails to pay a delinquent fine, to increase the defendant's sentence to any sentence that might originally have been imposed under the applicable statute.
[Congressional Bills 106th Congress]
[From the U.S. Government Printing Office]
[S. 145 Introduced in Senate (IS)]
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Victim Restitution Enforcement Act
of 1999''.
SEC. 2. PROCEDURE FOR ISSUANCE AND ENFORCEMENT OF RESTITUTION ORDER.
Section 3664 of title 18, United States Code, is amended to read as
follows:
``Sec. 3664. Procedure for issuance and enforcement of order of
restitution
``(a) In General.--
``(1) Reliance on information in presentence report.--With
respect to each order of restitution under this title, the
court shall order the probation service of the court to obtain
and include in its presentence report, or in a separate report,
as the court directs, information sufficient for the court to
exercise its discretion in fashioning a restitution order.
``(2) Contents of report.--Each report described in
paragraph (1) shall include, to the extent practicable, a
complete accounting of the losses to each victim, any
restitution owed pursuant to a plea agreement, and information
relating to the economic circumstances of each defendant. If
the number or identity of victims cannot be reasonably
ascertained, or other circumstances exist that make this
requirement clearly impracticable, the probation service shall
so inform the court.
``(b) Disclosures.--The court shall disclose to both the defendant
and the attorney for the Government all portions of the presentence or
other report pertaining to the matters described in subsection (a).
``(c) Applicability of Other Law.--This chapter, chapter 227, and
Rule 32(c) of the Federal Rules of Criminal Procedure are the only laws
and rules applicable to proceedings under this section.
``(d) Ensuring Availability of Property or Assets.--
``(1) In general.--
``(A) Restraining order, injunction, execution of
performance bond.--Upon application of the United
States, the court may enter a restraining order or
injunction, require the execution of a satisfactory
performance bond, or take any other action to preserve
the availability of property or assets necessary to
satisfy a criminal restitution order under this
subchapter. An order under this subparagraph may be
entered in the following circumstances:
``(i) Prior to the filing of an indictment
or information charging an offense that may
result in a criminal restitution order, and
upon the United States showing that--
``(I) there is a substantial
probability that the United States will
obtain a criminal restitution order;
``(II) the defendant has or is
likely to take action to dissipate or
hide the property or assets of the
defendant; and
``(III) the need to preserve the
availability of the property or assets
through the requested order outweighs
the hardship of any party against whom
the order is entered.
``(ii) Upon the filing of an indictment or
information charging an offense that may result
in a criminal restitution order, and upon the
United States showing that the defendant has or
is likely to take action to dissipate or hide
the property or assets of the defendant.
``(iii) Upon the conviction, or entry of a
guilty plea, to an indictment or information
charging an offense that may result in a
criminal restitution order, and upon the United
States showing that the defendant may take
action to dissipate or hide the property or
assets of the defendant or that an order is
necessary to marshal and determine the property
or assets of the defendant.
``(B) Period of effectiveness.--An order entered
under subparagraph (A) shall be effective for not more
than 90 days, unless extended by the court for good
cause shown or unless an indictment or information
described in subparagraph (A)(ii) has been filed.
``(2) Notice of order.--
``(A) In general.--Except as provided in paragraph
(3), an order entered under this subsection shall be
after notice to persons appearing to have an interest
in the property and opportunity for a hearing, and upon
the United States carrying the burden of proof by a
preponderance of the evidence.
``(B) Admissible evidence.--The court may receive
and consider, at a hearing held under this subsection,
evidence and information that would be inadmissible
under the Federal Rules of Evidence.
``(3) Temporary restraining order.--
``(A) In general.--A temporary restraining order
may be entered without notice or opportunity for a
hearing if the United States demonstrates that--
``(i) there is probable cause to believe
that the property or assets with respect to
which the order is sought would be subject to
execution upon the entry of a criminal
restitution order;
``(ii) there is a substantial probability
that the United States will obtain a criminal
restitution order; and
``(iii) the provision of notice would
jeopardize the availability of the property or
assets for execution.
``(B) Expiration of order.--A temporary order under
this paragraph shall expire not later than 10 days
after the date on which it is entered, unless--
``(i) the court grants an extension for
good cause shown; or
``(ii) the party against whom the order is
entered consents to an extension for a longer
period.
``(C) Hearing.--A hearing requested concerning an
order entered under this paragraph shall be held at the
earliest possible time, and prior to the expiration of
the temporary order.
``(4) Disclosure of certain information.--
``(A) In general.--Information concerning the net
worth, financial affairs, transactions or interests of
the defendant presented to the grand jury may be
disclosed to an attorney for the Government assisting
in the enforcement of criminal restitution orders, for
use in the performance of the duties of that attorney.
``(B) Use of consumer credit reports.--
``(i) In general.--An attorney for the
Government responsible for the prosecution of
criminal offenses, or responsible for the
enforcement of criminal restitution orders, may
obtain and use consumer credit reports to--
``(I) obtain an order under this
section;
``(II) determine the amount of
restitution that is appropriate; or
``(III) enforce a criminal
restitution order.
``(ii) Grand jury subpoena.--This
subparagraph does not limit the availability of
grand jury subpoenas to obtain a consumer
credit report.
``(iii) Probation service.--Upon
conviction, a consumer credit report used under
this subparagraph may be furnished to the
United States Probation Service.
``(e) Information to Probation Service.--
``(1) In general.--
``(A) Provision of information by government.--Not
later than 60 days after conviction, and in any event
not later than 10 days prior to sentencing, the
attorney for the Government after consulting with all
victims (when practicable), shall promptly provide the
probation service of the court all information readily
available to the attorney, including matters occurring
before the grand jury relating to the identity of the
victim or victims, the amount of losses, and financial
matters relating to the defendant.
``(B) Provision of information by defendants.--Each
defendant shall prepare and file with the probation
officer an affidavit fully describing the financial
resources of the defendant, including a complete
listing of all assets owned or controlled by the
defendant as of the date on which the defendant was
arrested, the financial needs and earning ability of
the defendant and the defendant's dependents, and any
other information that the court requires relating to
such other factors as the court determines to be
appropriate.
``(C) Notice to victims.--The attorney for the
Government shall, to the maximum extent practicable and
as soon as practicable after the provision of
information by the Government to the probation service
under subparagraph (A), provide notice to all victims.
The notice shall inform the victims of--
``(i) the offenses for which the defendant
was convicted;
``(ii) the amounts subject to restitution
and any other information that is relevant to
restitution submitted to the probation service;
``(iii) the right of the victim to submit
information to the probation service concerning
the amount of the losses of the victim;
``(iv) the scheduled date, time, and place
of the sentencing hearing;
``(v) the availability of a lien in favor
of the victim under subsection (n)(1)(D); and
``(vi) the opportunity of the victim to
file a separate affidavit with the court under
subparagraph (E).
``(D) Limitations on information.--Upon ex parte
application to the court, and a showing that the
requirements of subparagraph (A) may cause harm to any
victim, or jeopardize an ongoing investigation, the
court may limit the information to be provided to or
sought by the probation service of the court.
``(E) Affidavit of objection.--If any victim
objects to any of the information provided to the
probation service by the attorney for the Government
under this paragraph, the victim may file a separate
affidavit with the court.
``(2) Additional documentation or testimony.--After
reviewing the report of the probation service of the court, the
court may require additional documentation or hear testimony.
The privacy of any records filed, or testimony heard, under
this section shall be maintained to the greatest extent
possible and those records may be filed or testimony heard in
camera.
``(3) Additional time for determination of losses.--If the
losses to the victim are not ascertainable by the date that is
10 days prior to sentencing as provided in paragraph (1), the
United States Attorney (or a designee of the United States
Attorney) shall so inform the court, and the court shall set a
date for the final determination of the losses of the victim,
not to exceed 90 days after sentencing. If the losses to the
victim cannot reasonably be ascertained, the court shall
determine an appropriate amount of restitution based on the
available information. If the victim subsequently discovers
further losses, the victim shall have 60 days after discovery
of those losses during which to petition the court for an
amended restitution order. The order may be granted only upon a
showing of good cause for the failure to include those losses
in the initial claim for restitutionary relief.
``(4) Referral to magistrate or special master.--The court
may refer any issue arising in connection with a proposed order
of restitution to a magistrate or special master for proposed
findings of fact and recommendations as to disposition, subject
to a de novo determination of the issue by the court.
``(5) Insurance of victim not considered.--In no case shall
the fact that a victim has received or is entitled to receive
compensation with respect to a loss from insurance or any other
source be considered in determining the amount of restitution.
``(f) Evidentiary Standard.--Any dispute as to the proper amount or
type of restitution shall be resolved by the court by the preponderance
of the evidence. The burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense shall be on the
attorney for the Government. The burden of demonstrating the financial
resources of the defendant and the financial needs of the defendant and
the dependents of the defendant shall be on the defendant. The burden
of demonstrating such other matters as the court deems appropriate
shall be upon the party designated by the court as justice requires.
``(g) Factors for Consideration.--
``(1) In general.--
``(A) Economic circumstances of victim not
considered.--In each order of restitution, the court
shall order restitution to each victim in the full
amount of the losses of each victim as determined by
the court and without consideration of the economic
circumstances of the defendant.
``(B) Award of reasonably ascertainable losses.--
The court shall order restitution in the amount of the
total loss that is reasonably ascertainable, if--
``(i) the number of victims is too great;
``(ii) the actual identity of the victims
cannot be ascertained; and
``(iii) or the full amount of the losses of
each victim cannot be reasonably ascertained;
``(2) Amount and timing of restitution.--The restitution
order shall be for a sum certain and payable immediately.
``(3) Nominal periodic payments.--If the court finds from
facts on the record that the economic circumstances of the
defendant do not allow and are not likely to allow the
defendant to make more than nominal payments under the
restitution order, the court shall direct the defendant to make
nominal periodic payments in the amount the defendant can
reasonably be expected to pay by making a diligent and bona
fide effort toward the restitution order entered under
paragraph (1). Nothing in the paragraph shall impair the
obligation of the defendant to make full restitution under this
subsection.
``(4) Status of debt.--Notwithstanding any payment schedule
entered by the court under paragraph (2), each order of
restitution shall be a civil debt, payable immediately, and
subject to the enforcement procedures provided in subsection
(n). In no event shall a defendant incur any criminal penalty
for failure to make a restitution payment under the restitution
order because of the indigency of the defendant.
``(h) Victim Rights.--
``(1) No participation required.--No victim shall be
required to participate in any phase of a restitution order. If
a victim declines to receive restitution made mandatory by this
title, the court shall order that the share of the victim of
any restitution owed be deposited in the Crime Victims Fund in
the Treasury.
``(2) Assignment of interest.--A victim may at any time
assign the interest of the victim in restitution payments to
the Crime Victims Fund in the Treasury without in any way
impairing the obligation of the defendant to make those
payments.
``(3) Victims not identified or located.--If the victim
cannot be located or identified, the court shall direct that
the restitution payments be made to the Crime Victims Fund of
the Treasury. This paragraph shall not be construed to impair
the obligation of the defendant to make those payments.
``(i) Joint and Several Liability of Multiple Defendants.--If the
court finds that more than 1 defendant has contributed to the loss of a
victim, the court may make each defendant jointly and severally liable
for payment of the full amount of restitution or may apportion
liability among the defendants to reflect the level of contribution to
the loss of the victim and economic circumstances of each defendant.
``(j) Priority of Payments.--If the court finds that more than 1
victim has sustained a loss requiring restitution by a defendant, the
court may issue an order of priority for restitution payments based on
the type and amount of the loss of the victim accounting for the
economic circumstances of each victim. In any case in which the United
States is a victim, the court shall ensure that all individual victims
receive full restitution before the United States receives any
restitution.
``(k) Insurance.--
``(1) In general.--If a victim has received or is entitled
to receive compensation with respect to a loss from insurance
or any other source, the court shall order that restitution
shall be paid to the person who provided or is obligated to
provide the compensation, but the restitution order shall
provide that all restitution of victims required by the order
be paid to the victims before any restitution is paid to any
such provider of compensation.
``(2) Reduction of amount.--Any amount paid to a victim
under an order of restitution shall be reduced by any amount
later recovered as compensatory damages for the same loss by
the victim in--
``(A) any Federal civil proceeding; and
``(B) any State civil proceeding, to the extent
provided by the law of the State.
``(3) Other resources.--If a person obligated to provide
restitution receives substantial resources from any source,
including inheritance, settlement, or other judgment, that
person shall be required to apply the value of those resources
to any restitution still owed.
``(l) Material Changes in Economic Status of Defendant.--The
defendant shall notify the court and the Attorney General of any
material change in the economic circumstances of the defendant that
might affect the ability of the defendant to pay restitution. Upon
receipt of the notification, the court may, on its own motion, or the
motion of any party, including the victim, adjust the payment schedule,
or require immediate payment in full, as the interests of justice
require.
``(m) Jurisdiction of Court.--
``(1) In general.--The court shall retain jurisdiction over
any criminal restitution judgment or amended criminal
restitution judgment for a period of 5 years from the date the
sentence was imposed. This limitation shall be tolled during
any period of time that the defendant--
``(A) was incarcerated;
``(B) was a fugitive; or
``(C) was granted a stay that prevented the
enforcement of the restitution order.
``(2) Failure to pay.--While within the jurisdiction of the
court, if the defendant knowingly fails to make a bona fide
effort to pay whatever amount of restitution is ordered by the
court, or knowingly and willfully refuses to pay restitution,
the court may--
``(A) modify the terms or conditions of the
probation or supervised release of the defendant;
``(B) extend the probation or supervised release of
the defendant until a date not later than 10 years from
the date the sentence was imposed;
``(C) revoke the probation or supervised release of
the defendant;
``(D) hold the defendant in contempt; or
``(E) increase the sentence of the defendant to any
sentence that might originally have been imposed under
the applicable statute, without regard to the
sentencing guidelines.
``(n) Enforcement of Order of Restitution.--
``(1) In general.--An order of restitution may be
enforced--
``(A) through civil or administrative methods
during the period that the restitution lien provided
for in section 3613 of title 18, United States Code, is enforceable;
``(B) by the United States in the manner provided
for in subchapter C of chapter 227 and subchapter B of
chapter 229;
``(C) by the United States regardless of whether
for the benefit of the United States, in accordance
with the procedures of chapter 176 of part VI of title
28, or in accordance with any other administrative or
civil enforcement means available to the United States
to enforce a debt due the United States; or
``(D) by any victim named in the restitution order
as a lien under section 1962 of title 28.
``(2) Estoppel.--A conviction of a defendant for an offense
giving rise to restitution under this section shall estop the
defendant from denying the essential allegations of that
offense in any subsequent Federal civil proceeding or State
civil proceeding, regardless of any State law precluding
estoppel for a lack of mutuality. The victim, in the subsequent
proceeding, shall not be precluded from establishing a loss
that is greater than the loss determined by the court in the
earlier criminal proceeding.''.
SEC. 3. CIVIL REMEDIES.
Section 3613 of title 18, United States Code, is amended--
(1) in the section heading, by inserting ``or restitution''
after ``fine''; and
(2) in subsection (a)--
(A) by striking ``The United States'' and inserting
the following:
``(1) Fines.--The United States'';
(B) by redesignating paragraphs (1), (2), and (3)
as subparagraphs (A), (B), and (C), respectively, and
indenting accordingly; and
(C) by adding at the end the following:
``(2) Restitution.--
``(A) In general.--
``(i) Lien.--An order of restitution shall
operate as a lien in favor of the United States
for its benefit or for the benefit of any non-
Federal victims against all property belonging
to the defendant or defendants.
``(ii) Timing.--The lien shall arise at the
time of the entry of judgment or order and
shall continue until the liability is
satisfied, remitted, or set aside, or until it
becomes otherwise unenforceable.
``(iii) Persons against whom lien
applies.--The lien shall apply against all
property and property interests--
``(I) owned by the defendant or
defendants at the time of arrest; and
``(II) subsequently acquired by the
defendant or defendants.
``(B) Entry of lien.--The lien shall be entered in
the name of the United States on behalf of all
ascertained victims, unascertained victims, victims
entitled to restitution who choose not to participate
in the restitution program and victims entitled to
restitution who cannot assert their interests in the
lien for any reason.
``(3) Jointly held property.--
``(A) In general.--
``(i) Division and sale of property.--If
the court enforcing an order of restitution
under this section determines that the
defendant has an interest in property with
another, and that the defendant cannot satisfy
the restitution order from his or her separate property or income, the
court may, after considering all of the equities, order that jointly
owned property be divided and sold, upon such conditions as the court
deems just, notwithstanding any Federal or State law to the contrary.
``(ii) Protection of innocent parties.--The
court shall take care to protect the reasonable
and legitimate interests of the innocent spouse
and minor children of the defendant, especially
real property used as the actual home of that
innocent spouse and minor children, except to
the extent that the court determines that the
interest of that innocent spouse and children
is the product of the criminal activity of
which the defendant has been convicted, or is
the result of a fraudulent transfer.
``(B) Fraudulent transfers.--In determining whether
there was a fraudulent transfer, the court shall
consider whether the debtor made the transfer--
``(i) with actual intent to hinder, delay,
or defraud the United States or other victim;
or
``(ii) without receiving a reasonably
equivalent value in exchange for the transfer.
``(C) Considerations for protection of innocent
parties.--In determining what portion of the jointly
owned property shall be set aside for the innocent
spouse or children of the defendant, or whether to have
sold or divided the jointly held property, the court
shall consider--
``(i) the contributions of the other joint
owner to the value of the property;
``(ii) the reasonable expectation of the
other joint owner to be able to enjoy the
continued use of the property; and
``(iii) the economic circumstances and
needs of the defendant and dependents of the
defendant and the economic circumstances and
needs of the victim and the dependents of the
victim.''.
SEC. 4. FINES.
Section 3572(b) of title 18, United States Code, is amended to read
as follows:
``(b) Payments; Effect of Indigency.--Any fine, special assessment,
restitution, or cost shall be for a sum certain and shall be payable
immediately. In no event shall a defendant incur any criminal penalty
for failure to make a payment on a fine, special assessment,
restitution, or cost as a result of the indigency of the defendant.''.
SEC. 5. RESENTENCING.
Section 3614(a) of title 18, United States Code, is amended by
inserting before the period at the end the following: ``or may increase
the sentence of the defendant to any sentence that might originally
have been imposed under the applicable statute''.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S568-569)
Read twice and referred to the Committee on Judiciary.
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