[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1504 Introduced in Senate (IS)]

  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.

    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 ``Victims Restitution Enforcement Act 
of 1995''.

SEC. 2. PROCEDURE FOR ISSUANCE AND ENFORCEMENT OF RESTITUTION ORDER.

    (a) In General.--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) For orders 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. The report 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) 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) of this 
section.
    ``(c) The provisions of this chapter, chapter 227, and Rule 32(c) 
of the Federal Rules of Criminal Procedure shall be the only rules 
applicable to proceedings under this section.
    ``(d)(1)(A) 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. Such order 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 defendant's property or 
                assets; 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 
        defendant's property or assets.
            ``(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 defendant's property or assets or that an order is 
        necessary to marshal and determine the defendant's property or 
        assets.
    ``(B) An order entered pursuant to 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)(A) 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) The court may receive and consider, at a hearing held 
pursuant to this subsection, evidence and information that would be 
inadmissible under the Federal Rules of Evidence.
    ``(3)(A) 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) 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) 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)(A) 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 that attorney's duties.
    ``(B)(i) 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) This subparagraph does not limit the availability of grand 
jury subpoenas to obtain such credit reports.
    ``(iii) Upon conviction, such reports may be furnished to the 
United States Probation Service.
    ``(e)(1)(A) Within 60 days after conviction, and in any event not 
later than 10 days prior to sentencing, the attorney for the United 
States 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 loss, and financial matters relating to the defendant.
    ``(B) The attorney for the government shall, if practicable, 
provide notice to all victims. The notice shall inform the victims of 
the offenses for which the defendant was convicted, the victim's right 
to submit information to the probation office concerning the amount of 
the victim's losses, and the scheduled date, time, and place of the 
sentencing hearing.
    ``(C) 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.
    ``(D) If any victim objects to any of the information provided to 
the probation service by the attorney for the United States, the victim 
may file a separate affidavit with the court.
    ``(2) 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, 
pursuant to this section shall be maintained to the greatest extent 
possible and such records may be filed or testimony heard in camera.
    ``(3) If the victim's losses are not ascertainable by the date that 
is 10 days prior to sentencing as provided in paragraph (1), the United 
States Attorney (or the United States Attorney's delegee) shall so 
inform the court, and the court shall set a date for the final 
determination of the victim's losses, not to exceed 90 days after 
sentencing. If the victim's losses 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 
in which to petition the court for an amended restitution order. Such 
order may be granted only upon a showing of good cause for the failure 
to include such losses in the initial claim for restitutionary relief.
    ``(4) 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) 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) 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 such defendant's 
dependents 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)(1)(A) In each order of restitution, the court shall order 
restitution to each victim in the full amount of each victim's losses 
as determined by the court and without consideration of the economic 
circumstances of the defendant.
    ``(B) 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 each victim's losses cannot 
        be reasonably ascertained;
the court shall order restitution in the amount of the total loss that 
is reasonably ascertainable.
    ``(2) The restitution order shall be for a sum certain and payable 
immediately.
    ``(3) 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 pursuant to paragraph (1). Nothing in the paragraph shall 
impair the defendant's obligation to make full restitution pursuant to 
paragraphs (1) and (2).
    ``(4) Notwithstanding any payment schedule entered by the court 
pursuant to 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 defendant's indigency.
    ``(h)(1) 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 victim's share 
of any restitution owed be deposited in the Crime Victims Fund in the 
Treasury.
    ``(2) A victim may at any time assign the victim's interest in 
restitution payments to the Crime Victims Fund in the Treasury without 
in any way impairing the obligation of the defendant to make such 
payments.
    ``(3) 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 such payments.
    ``(i) 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 victim's loss and economic circumstances of each 
defendant.
    ``(j) 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 victim's loss 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)(1) 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 such a provider of compensation.
    ``(2) 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) If a person obligated to provide restitution receives 
substantial resources from any source, including inheritance, 
settlement, or other judgment, such person shall be required to apply 
the value of such resources to any restitution still owed.
    ``(l) The defendant shall 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. 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)(1) 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) 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 defendant's 
        probation or supervised release;
            ``(B) extend the defendant's probation or supervised 
        release until a date not later than 10 years from the date the 
        sentence was imposed;
            ``(C) revoke the defendant's probation or supervised 
        release;
            ``(D) hold the defendant in contempt; or
            ``(E) increase the defendant's sentence to any sentence 
        that might originally have been imposed under the applicable 
        statute, without regard to the sentencing guidelines.
    ``(n)(1) 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 pursuant to section 1962 of title 28.
    ``(2) 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 such 
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.''.
    (b) Technical Amendment.--The item relating to section 3664 in the 
analysis for chapter 232 of title 18, United States Code, is amended to 
read as follows:

``3664. Procedure for issuance and enforcement of order of 
                            restitution.''.

SEC. 3. CIVIL REMEDIES.

    Section 3613 of title 18, United States Code, is amended--
            (1) in the heading, by inserting ``or restitution'' after 
        ``fine''; and
            (2) in subsection (a)--
                    (A) by striking ``A fine'' and inserting the 
                following:
            ``(1) Fines.--A fine'';
                    (B) by redesignating paragraphs (1) and (2) as 
                subparagraphs (A) and (B), respectively, and indenting 
                accordingly; and
                    (C) by adding at the end the following new 
                paragraphs:
            ``(2) Restitution.--(A) 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. 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. Such lien shall apply against all property and 
property interests owned by the defendants at the time of arrest as 
well as all property subsequently acquired by the defendant or 
defendants.
            ``(B) The lien shall be entered in the name of the United 
        States in 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)(i) 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 such jointly owned 
        property be divided and sold, upon such conditions as the court 
        deems just, regardless of any Federal or State law to the 
        contrary.
            ``(ii) The court shall take care to protect the reasonable 
        and legitimate interests of the defendant's innocent spouse and 
        minor children, especially real property used as the actual 
        home of such innocent spouse and minor children, except to the 
        extent that the court determines that the interest of such 
        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) 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) In determining what portion of such jointly owned 
        property shall be set aside for the defendant's innocent spouse 
        or children, or whether to have sold or divided such 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) Any fine, special assessment, restitution, or cost shall be 
for a sum certain and 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 because of the 
defendant's indigency.''.

SEC. 5. RESENTENCING.

    Section 3614 of title 18, United States Code, is amended by 
inserting ``or may increase the defendant's sentence to any sentence 
that might originally have been imposed under the applicable statute'' 
after ``imposed''.
                                 <all>
S 1504 IS----2