[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 4055 Introduced in Senate (IS)]
109th CONGRESS
2d Session
S. 4055
To address the effect of the death of a defendant in Federal criminal
proceedings.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 15, 2006
Mrs. Feinstein (for herself and Mr. Sessions) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To address the effect of the death of a defendant in Federal criminal
proceedings.
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 ``Preserving Crime Victims'
Restitution Act of 2006''.
SEC. 2. EFFECT OF DEATH OF A DEFENDANT IN FEDERAL CRIMINAL PROCEEDINGS.
(a) In General.--Subchapter A of chapter 227 of title 18, United
States Code, is amended by adding at the end the following:
``Sec. 3560. Effect of death of a defendant in Federal criminal
proceedings
``(a) General Rule.--Notwithstanding any other provision of law,
the death of a defendant who has been convicted of a Federal criminal
offense shall not be the basis for abating or otherwise invalidating a
plea of guilty or nolo contendere accepted, a verdict returned, a
sentence announced, or a judgment entered prior to the death of that
defendant, or for dismissing or otherwise invalidating the indictment,
information, or complaint on which such a plea, verdict, sentence, or
judgment is based, except as provided in this section.
``(b) Death After Plea or Verdict.--
``(1) Entry of judgment.--If a defendant dies after a plea
of guilty or nolo contendere has been accepted or a verdict has
been returned, but before judgment is entered, the court shall
enter a judgment incorporating the plea of guilty or nolo
contendere or the verdict, with the notation that the defendant
died before the judgment was entered.
``(2) Punitive sanctions.--
``(A) Death before sentence announced.--If a
defendant dies after a plea of guilty or nolo
contendere has been accepted or a verdict has been
returned and before a sentence has been announced, no
sentence of probation, supervision, or imprisonment may
be imposed, no criminal forfeiture may be ordered, and
no liability for a fine or special assessment may be
imposed on the defendant or the defendant's estate.
``(B) Death after sentencing or judgment.--The
death of a defendant after a sentence has been
announced or a judgment has been entered, and before
that defendant has exhausted or waived the right to a
direct appeal--
``(i) shall terminate any term of
probation, supervision, or imprisonment, and
shall terminate the liability of that defendant
to pay any amount remaining due of a criminal
forfeiture, of a fine under section 3613(b), or
of a special assessment under section 3013; and
``(ii) shall not require return of any
portion of any criminal forfeiture, fine, or
special assessment already paid.
``(3) Restitution.--
``(A) Death before sentence announced.--If a
defendant dies after a plea of guilty or nolo
contendere has been accepted or a verdict has been
returned and before a sentence has been announced, the
court shall, upon a motion under subsection (c)(2) by
the Government or any victim of that defendant's crime,
commence a special restitution proceeding at which the
court shall adjudicate and enter a final order of
restitution against the estate of that defendant in an
amount equal to the amount that would have been imposed
if that defendant were alive.
``(B) Death after sentencing or judgment.--The
death of a defendant after a sentence has been
announced shall not be a basis for abating or otherwise
invalidating restitution announced at sentencing or
ordered after sentencing under section 3664(d)(5) of
this title or any other provision of law.
``(4) Civil proceedings.--The death of a defendant after a
plea of guilty or nolo contendere has been accepted, a verdict
returned, a sentence announced, or a judgment entered, shall
not prevent the use of that plea, verdict, sentence, or
judgment in civil proceedings, to the extent otherwise
permitted by law.
``(c) Appeals, Motions, and Petitions.--
``(1) In general.--Except as provided in paragraph (2),
after the death of a defendant convicted in a criminal case--
``(A) no appeal, motion, or petition by or on
behalf of that defendant or the personal representative
or estate of that defendant, the Government, or a
victim of that defendant's crime seeking to challenge
or reinstate a plea of guilty or nolo contendere
accepted, a verdict returned, a sentence announced, or
a judgment entered prior to the death of that defendant
shall be filed in that case after the death of that
defendant; and
``(B) any pending motion, petition, or appeal in
that case shall be dismissed with the notation that the
dismissal is due to the death of the defendant.
``(2) Exceptions.--
``(A) Restitution.--After the death of a defendant
convicted in a criminal case, the personal
representative of that defendant, the Government, or
any victim of that defendant's crime may file or pursue
an otherwise permissible direct appeal, petition for
mandamus or a writ of certiorari, or an otherwise
permissible motion described in section 3663, 3663A,
3664, or 3771, to the extent that the appeal, petition,
or motion raises an otherwise permissible claim to--
``(i) obtain, in a special restitution
proceeding, a final order of restitution under
subsection (b)(3);
``(ii) enforce, correct, amend, adjust,
reinstate, or challenge any order of
restitution; or
``(iii) challenge or reinstate a verdict,
plea of guilty or nolo contendere, sentence, or
judgment on which--
``(I) a restitution order is based;
or
``(II) restitution is being or will
be sought by an appeal, petition, or
motion under this paragraph.
``(B) Other civil actions affected.--After the
death of a defendant convicted in a criminal case, the
personal representative of that defendant, the
Government, or any victim of that defendant's crime may
file or pursue an otherwise permissible direct appeal,
petition for mandamus or a writ of certiorari, or an
otherwise permissible motion under the Federal Rules of
Criminal Procedure, to the extent that the appeal,
petition, or motion raises an otherwise permissible
claim to challenge or reinstate a verdict, plea of
guilty or nolo contendere, sentence, or judgment that
the appellant, petitioner, or movant shows by a
preponderance of the evidence is, or will be, material
in a pending or reasonably anticipated civil
proceeding, including civil forfeiture proceedings.
``(C) Collateral consequences.--
``(i) In general.--Except as provided in
subparagraphs (A) and (B), the Government may
not restrict any Federal benefits or impose
collateral consequences on the estate or a
family member of a deceased defendant based
solely on the conviction of a defendant who
died before that defendant exhausted or waived
the right to direct appeal unless, not later
than 90 days after the death of that defendant,
the Government gives notice to that estate or
family member of the intent of the Government
to take such action.
``(ii) Personal representative.--If the
Government gives notice under clause (i), the
court shall appoint a personal representative
for the deceased defendant that is the subject
of that notice, if not otherwise appointed,
under section (d)(2)(A).
``(iii) Tolling.--If the Government gives
notice under clause (i), any filing deadline
that might otherwise apply against the
defendant, the estate of the defendant, or a
family member of the defendant shall be tolled
until the date of the appointment of that
defendant's personal representative under
clause (ii).
``(3) Basis.--In any appeal, petition, or motion under
paragraph (2), the death of the defendant shall not be a basis
for relief.
``(d) Procedures Regarding Continuing Litigation.--
``(1) In general.--The standards and procedures for a
permitted appeal, petition, motion, or other proceeding under
subsection (c)(2) shall be the standards and procedures
otherwise provided by law, except that the personal
representative of the defendant shall be substituted for the
defendant.
``(2) Special procedures.--If continuing litigation is
initiated or could be initiated under subsection (c)(2), the
following procedures shall apply:
``(A) Notice and appointment of personal
representative.--The district court before which the
criminal case was filed (or the appellate court if the
matter is pending on direct appeal) shall--
``(i) give notice to any victim of the
convicted defendant under section 3771(a)(2),
and to the personal representative of that
defendant or, if there is none, the next of kin
of that defendant; and
``(ii) appoint a personal representative
for that defendant, if not otherwise appointed.
``(B) Counsel.--Counsel shall be appointed for the
personal representative of a defendant convicted in a
criminal case who dies if counsel would have been
available to that defendant, or if the personal
representative of that defendant requests counsel and
otherwise qualifies for the appointment of counsel,
under section 3006A.
``(C) Tolling.--The court shall toll any applicable
deadline for the filing of any motion, petition, or
appeal during the period beginning on the date of the
death of a defendant convicted in a criminal case and
ending on the later of--
``(i) the date of the appointment of that
defendant's personal representative; or
``(ii) where applicable, the date of the
appointment of counsel for that personal
representative.
``(D) Restitution.--If restitution has not been
fully collected on the date on which a defendant
convicted in a criminal case dies--
``(i) any amount owed under a restitution
order (whether issued before or after the death
of that defendant) shall be collectible from
any property from which the restitution could
have been collected if that defendant had
survived, regardless of whether that property
is included in the estate of that defendant;
``(ii) any restitution protective order in
effect on the date of the death of that
defendant shall continue in effect unless
modified by the court after hearing or pursuant
to a motion by the personal representative of
that defendant, the Government, or any victim
of that defendant's crime; and
``(iii) upon motion by the Government or
any victim of that defendant's crime, the court
shall take any action necessary to preserve the
availability of property for restitution under
this section.
``(e) Forfeiture.--
``(1) In general.--Except as provided in paragraph (2), the
death of an individual does not affect the Government's ability
to seek, or to continue to pursue, civil forfeiture of property
as authorized by law.
``(2) Tolling of limitations for civil forfeiture.--
Notwithstanding the expiration of any civil forfeiture statute
of limitations or any time limitation set forth in section
983(a) of this title, not later than the later of the time
period otherwise authorized by law and 2 years after the date
of the death of an individual against whom a criminal
indictment alleging forfeiture is pending, the Government may
commence civil forfeiture proceedings against any interest in
any property alleged to be forfeitable in the indictment of
that individual.
``(f) Definitions.--In this section--
``(1) the term `accepted', relating to a plea of guilty or
nolo contendere, means that a court has determined, under rule
11(b) of the Federal Rules of Criminal Procedure, that the plea
is voluntary and supported by a factual basis, regardless of
whether final acceptance of that plea may have been deferred
pending review of a presentence report or otherwise;
``(2) the term `announced', relating to a sentence, means
that the sentence has been orally stated in open court;
``(3) the term `convicted' refers to a defendant--
``(A) whose plea of guilty or nolo contendere has
been accepted; or
``(B) against whom a verdict of guilty has been
returned;
``(4) the term `direct appeal' means an appeal filed,
within the period provided by rule 4(b) of the Federal Rules of
Appellate Procedure, from the entry of the judgment or order of
restitution, including review by the Supreme Court of the
United States; and
``(5) the term `returned', relating to a verdict, means
that the verdict has been orally stated in open court.''.
(b) Conforming Amendment.--The table of sections for chapter 227 of
title 18, United States Code, is amended by adding at the end the
following:
``3560. Effect of death of a defendant in Federal criminal
proceedings.''.
SEC. 3. EFFECTIVE DATE.
The amendments made by this Act shall apply to any criminal case or
appeal pending on or after July 1, 2006.
SEC. 4. SEVERABILITY.
If any provision of this Act, any amendment made by this Act, or
the application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of the
provisions of this Act, the amendments made by this Act, and the
application of such provisions or amendments to any person or
circumstance shall not be affected.
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