[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 518 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 518

      To control crime by requiring mandatory victim restitution.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 8, 1997

  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 1997''.

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>