Short title

This Act may be cited as the

Criminal Restitution Improvement Act of 2007

Mandatory restitution for Federal offenses

Title 18, United States Code, is amended by striking section 3663 and all that follows through section 3664 and inserting the following:

3663.

Mandatory restitution

(a)

Restitution Required

The court shall order a convicted defendant to make restitution for all pecuniary loss to identifiable victims, including pecuniary loss resulting from physical injury to, or the death of, another, proximately resulting from the offense. (b)

To Whom Made

(1)

Generally

The court shall order restitution be made to each victim of the offense. (2)

Definition of victim

As used in this section and section 3664, the term victim means— (A)each identifiable person or entity suffering the pecuniary loss (and any successor to that person or entity); and (B)others, as agreed to in a plea agreement or otherwise provided by law. (c)

Extent of Restitution

Restitution shall compensate the victim for all of the victim’s pecuniary loss, including— (1)an amount equal to the greater of the value of the property on the date of the damage, loss, or destruction or the value of the property on the date of sentencing; (2)an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment; (3)an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and (4)income lost by such victim as a result of such offense; (5)lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense, including attorneys’ fees necessarily and reasonably incurred for representation of the victim except for payment of salaries of government lawyers; and (6)in the case of an offense resulting in the death of the victim, an amount equal to the cost of necessary funeral and related services. (d)

Special Rule for Misdemeanors

In the case of a misdemeanor, an order of restitution may be in lieu of any other penalty. (e)

Alternative Arrangements in Light of Practical Problems

The court shall provide as complete a restitution to as many victims as possible, though not the full restitution to all victims otherwise required by this section, to the extent the court finds on the record that— (1)the number of identifiable victims is so large as to make restitution impracticable; or (2)determining complex issues of fact related to the cause or amount of a victim’s losses would complicate or prolong the sentencing process to such a degree that the need to provide restitution to that victim is outweighed by the burden on the sentencing process.

3664.

Procedure for issuance and enforcement of order of restitution

(a)

Report by Probation Officer

(1)

Duty to make

The probation officer shall obtain and include in the presentence report, or in a separate report, as the court may direct, information sufficient for the court to fashion a restitution order. (2)

Contents

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 impracticable, the probation officer shall so inform the court and make the best efforts possible to estimate the loss and identify the victims. (b)

Disclosure to parties

The court shall disclose to the defendant, the attorney for the Government, and, upon request, potential recipients of restitution, all portions of the presentence or other report pertaining to the matters described in subsection (a). (c)

Information from Attorney for the Government

The attorney for the Government shall provide to the probation officer any information the Attorney for the Government has relevant to the matters required to be reported under subsection (a). (d)

Notice to Victims

The probation officer shall, before submitting the presentence report under subsection (a), to the extent practicable— (1)provide notice to all identified victims of— (A)the offense or offenses of which the defendant was convicted; (B)the amounts subject to restitution submitted to the probation officer; (C)the opportunity of the victim to submit information to the probation officer concerning the amount of the victim’s losses; (D)the scheduled date, time, and place of the sentencing hearing; (E)the availability of a lien in favor of the victim; and (F)the opportunity of the victim to file with the probation officer a separate affidavit relating to the amount of the victim’s losses subject to restitution; and (2)provide the victim with an affidavit form to submit pursuant to paragraph (1)(F). (e)

Defendant’s Affidavit as to Finances

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 such other information that the court requires relating to such other factors as the court deems appropriate. (f)

Additional Documentation or Testimony

After reviewing the report of the probation officer, 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. (g)

Date for Final Determination

If a victim’s losses are not ascertainable by the date that is 10 days before sentencing, the attorney for the Government or the probation officer 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 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 restitution. (h)

Referral to Magistrate or Special Master

The court may refer any issue arising in connection with a proposed order of restitution to a magistrate judge 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. (i)

Burdens of Proof

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 of restitution 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’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. (j)

Order of Payment

(1)Upon determination of the amount of restitution owed to each victim, the court shall order that the full amount of restitution is due and payable immediately. (2)The court shall specify in the restitution order the manner in which the restitution is to be paid. The court may provide for payment in installments according to a schedule. The length of time over which scheduled payments are established shall be the shortest time in which full payment reasonably can be made and based on— (A)the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B)projected earnings and other income of the defendant; and (C)any financial obligations of the defendant; including obligations to dependents. (3)The court may direct the defendant to take any action, including the repatriation of assets or the surrender of the interest of the defendant in any asset, in order to pay restitution in accordance with this section. (4)The Attorney General may collect and apply unreported or otherwise newly available assets to the payment of restitution, without regard to any installment payment provisions. (k)

Order as Final Judgment

A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that— (1)such a sentence can subsequently be— (A)corrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of chapter 235 of this title; (B)appealed and modified under section 3742; (C)amended under subsection (g); or (D)adjusted under section 3664(q), 3572, or 3613A; or (2)the defendant may be resentenced under section 3565 or 3614. (l)

Joint and several responsibility

If the offense involves more than one defendant, the court may order each defendant jointly and severally liable for any or all of the restitution. (m)

Supervised Release

A court shall not terminate a term of supervised release under section 3583(e) before the order to pay restitution has been completely satisfied. A court shall extend a term of supervised release beyond that otherwise imposed under other provisions of law, until the defendant has paid the restitution in full or the court determines the economic circumstances of the defendant do not allow the payment of any further restitution. Such determination is only for the purposes of this subsection and does not affect the obligation to pay restitution or the ability of any entity to enforce restitution under any other provision of law. If the supervised release is extended under this subsection, the court shall order that the sole condition of supervised release shall be payment of restitution. (n)

Effect of Insurance and Other Compensation

(1)

Insurance

In no case shall the fact that a victim receives 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. If a victim receives compensation from insurance or any other source with respect to a loss, the court shall order that restitution be paid to the person who provided or is obligated to provide the compensation, but the restitution order shall provide that all victims be paid before such a provider of compensation. (2)

Other compensation

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. (o)

Details of Payments

(1)

Minimum payment required

A restitution order may direct the defendant to make nominal periodic payments if the court finds on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments. (2)

In-kind payments

An in-kind payment may be in the form of return of property, replacement of property, or if the victim agrees, services rendered to the victim or a person or organization other than the victim. (p)

Different payment schedules for multiple victims

If the court finds that more than 1 victim has sustained a loss requiring restitution by a defendant, the court may provide for a different payment schedule for each victim, based on their individual losses and economic circumstances. In any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution. (q)

Material Change in Defendant’s Ability To Pay

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. The court may also accept notification of a material change in the defendant’s economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victims have been notified of the change in circumstances. 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. (r)

Name and address changes

It is the responsibility of the victim to provide any change in name or mailing address to the court while restitution is still owed. Not later than 30 days after any change in name or mailing or residence address, a person owing restitution shall promptly report the change to the court. The confidentiality of any information relating to a victim shall be maintained. (s)

Enforcement

(1)

Generally

An order of restitution may be enforced by the United States in the manner provided for in subchapter C of chapter 227 and subchapter B of chapter 229 of this title, or by all other available and necessary means. (2)

Abstract of judgment

At the request of a victim named in a restitution order, the clerk of the court shall issue an abstract of judgment certifying that a judgment has been entered in favor of such victim in the amount specified in the restitution order. Upon registering, recording, docketing, or indexing such abstract in accordance with the rules and requirements relating to judgments of the court of the State where the district court is located, the abstract of judgment shall be a lien on the property of the defendant located in such State in the same manner and to the same extent and under the same conditions as a judgment of a court of general jurisdiction in that State. (3)

Special rule for in-kind orders

An order of in-kind restitution in the form of services shall be enforced by the probation officer. (t)

Effect of additional resources

If a person obligated to provide restitution, or pay a fine, receives additional 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 or fine still owed. (u)

Rights of victims

(1)

Not required to participate

No victim shall be required to participate in any phase of a restitution order. (2)

Assignment to Fund

A victim may at any time assign an 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. (v)

No Cause of Action Created Against the United States or its officers or employees

Nothing in this section or section or 3663 shall be construed to create a cause of action not otherwise authorized in favor of any person against the United States or any officer or employee of the United States. (w)

Collateral estoppel

A conviction of a defendant for an offense involving the act giving rise to an order of restitution shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding or State civil proceeding, to the extent consistent with State law, brought by the victim.

Table of sections amendment

The table of sections at the beginning of chapter 232 of title 18, United States Code, is amended by striking the item relating to sections 3663 and all that follows the item relating to section 3664 and inserting the following:

3663. Mandatory restitution.

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

Effect of restitution order on sentence of probation

Section 3564 of title 18, United States Code, is amended by adding at the end the following:

(f)

Relation to Restitution Order

The court shall not terminate a term of probation under section 3564(c) if the defendant has an unsatisfied order of restitution. The court shall extend probation for such a defendant beyond any term otherwise provided by law until the order is satisfied or the court determines the economic circumstances of the defendant do not allow the payment of any further restitution. Such determination is only for the purposes of this subsection and does not affect the obligation to pay restitution or the ability of any entity to enforce restitution under any other provision of law. The sole condition of such extended probation shall be the satisfaction of that order.

Conforming amendments and repeals

(a)

Elimination of specialized mandatory restitution provisions

(1)

In title 18

Title 18, United States Code, is amended by striking— (A)section 1593; (B)section 2248; (C)section 2259; (D)section 2264; and (E)section 2327. (2)

Conforming amendments to tables in title 18

The table of sections for each of the chapters of title 18, United States Code, from which a section is stricken by subsection (a) is amended by striking the item relating to that section. (3)

In the Controlled Substances Act

The Controlled Substances Act (21 U.S.C. 801 et seq.) is amended— (A)in section 413(q), by strikingshall— and all that follows through 3663A of title 18, United States Code. and inserting order the defendant to reimburse the United States, the State or local government concerned, or both the United States and the State or local government concerned for the costs incurred by the United States or the State or local government concerned, as the case may be, for the cleanup associated with the manufacture of amphetamine or methamphetamine by the defendant, or on premises or in property that the defendant owns, resides, or does business in.; and (B)in section 416, by striking subsection (c). (b)

Elimination of procedural matters moved to restitution sections

Section 3612(b)(1) of title 18, United States Code, is amended— (1)by striking subparagraphs (F) and (G); (2)by inserting and at the end of subparagraph (D); and (3)by striking the semicolon at the end of subparagraph (E) and inserting a period. (c)

Cross reference corrections

(1)Section 3563(a)(6)(A) of title 18, United States Code, is amended by striking 2248, 2259, 2327, 3663, 3663A, and 3664 and inserting 3663 and 3664. (2)Section 3613(c) of title 18, United States Code, is amended by striking 2248 and all that follows through 3664 and inserting 3663 and 3664.

Special forfeiture of collateral profits from crime

Subsection (a) of section 3681 of title 18, United States Code, is amended by striking the interest of justice or an order of restitution and all that follows through the end of the subsection and inserting the compelling interest of preventing wrongdoers from profiting from their crimes or of providing restitution to the victims of those crimes so requires, order the offender (or any transferee of that defendant) to forfeit any profits made possible by the offense..

Amendments to the Mandatory Victims Restitution Act

(a)

In general

Chapter 232 of title 18, United States Code, is amended by inserting after section 3664 the following:

3664A.

Preservation of assets for restitution

(a)

Protective orders To preserve assets

(1)

In general

Upon the Government's ex parte application and a finding of probable cause that a defendant, if convicted, will be ordered to pay an approximate amount of restitution for an offense punishable by imprisonment for more than 1 year, the court— (A)shall— (i)enter a restraining order or injunction; (ii)require the execution of a satisfactory performance bond; or (iii)take any other action necessary to preserve the availability of any property traceable to the commission of the offense charged; and (B)if it determines that it is in the interests of justice to do so, shall issue any order necessary to preserve any nonexempt asset (as defined in section 3613) of the defendant that may be used to satisfy such restitution order. (2)

Effect of probable cause finding

Any probable cause finding by the court under paragraph (1) shall not limit the amount of restitution the court may impose at the time of sentencing. (3)

Procedures

Applications and orders issued under paragraph (1) shall be governed by the procedures under section 413(e) of the Controlled Substances Act (21 U.S.C. 853(e)) and in this section. (4)

Monetary instruments

If the property in question is a monetary instrument (as defined in section 1956(c)(5)) or funds in electronic form, the protective order issued under paragraph (1) may take the form of a warrant authorizing the Government to seize the property and to deposit it into an interest-bearing account in the Registry of the Court in the district in which the warrant was issued, or into another such account maintained by a substitute property custodian, as the court may direct. (5)

Post-indictment

A post-indictment protective order entered under paragraph (1) shall remain in effect through the conclusion of the criminal case, including sentencing and any post-sentencing proceedings, until seizure or other disposition of the subject property, unless modified by the court upon a motion by the Government or under subsection (b) or (c). (b)

Defendant's right to a hearing

(1)

In general

In the case of a preindictment protective order entered under subsection (a)(1), the defendant's right to a post-restraint hearing shall be governed by paragraphs (1)(B) and (2) of section 413(e) of the Controlled Substances Act (21 U.S.C. 853(e)). (2)

Post-indictment

In the case of a post-indictment protective order entered under subsection (a)(1), the defendant shall have a right to a post-restraint hearing regarding the continuation or modification of the order if the defendant— (A)establishes by a preponderance of the evidence that there are no assets, other than the restrained property, available to the defendant to retain counsel in the criminal case or to provide for a reasonable living allowance for the necessary expenses of the defendant and the defendant's lawful dependents; and (B)makes a prima facie showing that there is bona fide reason to believe that the court's ex parte finding of probable cause under subsection (a)(1) was in error. (3)

Hearing

(A)

In general

If the court determines that the defendant has satisfied the requirements of paragraph (2), it may hold a hearing to determine whether there is probable cause to believe that the defendant, if convicted, will be ordered to satisfy an order of restitution for an offense punishable by imprisonment for more than 1 year, and that the seized or restrained property may be needed to satisfy such restitution order. (B)

Probable cause

If the court finds probable cause under subparagraph (A), the protective order shall remain in effect. (C)

No probable cause

If the court finds under subparagraph (A) that no probable cause exists as to some or all of the property, or determines that more property has been seized and restrained than may be needed to satisfy a restitution order, it shall modify the protective order to the extent necessary to release the property that should not have been restrained. (4)

Rebuttal

If the court conducts an evidentiary hearing under paragraph (3), the court shall afford the Government an opportunity to present rebuttal evidence and to cross-examine any witness that the defendant may present. (5)

Pretrial hearing

In any pretrial hearing on a protective order issued under subsection (a)(1), the court may not entertain challenges to the grand jury's finding of probable cause regarding the criminal offense giving rise to a potential restitution order. The court shall ensure that such hearings are not used to obtain disclosure of evidence or the identities of witnesses earlier than required by the Federal Rules of Criminal Procedure or other applicable law. (c)

Third party's right to post-restraint hearing

(1)

In general

A person other than the defendant who has a legal interest in property affected by a protective order issued under subsection (a)(1) may move to modify the order on the grounds that— (A)the order causes an immediate and irreparable hardship to the moving party; and (B)less intrusive means exist to preserve the property for the purpose of restitution. (2)

Modification

If, after considering any rebuttal evidence offered by the Government, the court determines that the moving party has made the showings required under paragraph (1), the court shall modify the order to mitigate the hardship, to the extent that it is possible to do so while preserving the asset for restitution. (3)

Intervention

(A)

In general

Except as provided in subparagraph (B) or paragraph (1), a person other than a defendant has no right to intervene in the criminal case to object to the entry of any order issued under this section or otherwise to object to an order directing a defendant to pay restitution. (B)

Exception

If, at the conclusion of the criminal case, the court orders the defendant to use particular assets to satisfy an order of restitution (including assets that have been seized or restrained pursuant to this section) the court shall give persons other than the defendant the opportunity to object to the order on the ground that the property belonged in whole or in part to the third party and not to the defendant, as provided in section 413(n) of the Controlled Substances Act (21 U.S.C. 853(n)). (d)

Geographic scope of order

(1)

In general

A district court of the United States shall have jurisdiction to enter an order under this section without regard to the location of the property subject to the order. (2)

Outside the United States

If the property subject to an order issued under this section is located outside of the United States, the order may be transmitted to the central authority of any foreign state for service in accordance with any treaty or other international agreement. (e)

No effect on other Government action

Nothing in this section shall be construed to preclude the Government from seeking the seizure, restraint, or forfeiture of assets under the asset forfeiture laws of the United States. (f)

Limitation on rights conferred

Nothing in this section shall be construed to create any enforceable right to have the Government seek the seizure or restraint of property for restitution. (g)

Receivers

(1)

In general

A court issuing an order under this section may appoint a receiver under section 1956(b)(4) to collect, marshal, and take custody, control, and possession of all assets of the defendant, wherever located, that have been restrained in accordance with this section. (2)

Distribution of property

The receiver shall have the power to distribute property in its control to each victim identified in an order of restitution at such time, and in such manner, as the court may authorize.

(b)

Conforming amendment

The table of sections at the beginning chapter 232 of title 18, United States Code, is amended by inserting after the item relating to section 3664 the following:

Sec. 3664A. Preservation of assets for restitution.

Amendments to the anti-fraud injunction statute

Section 1345(a) of title 18, United States Code, is amended— (1)in paragraph (1)— (A)in subparagraph (B), by striking or at the end; and (B)by inserting after subparagraph (C) the following:

(D)committing or about to commit a Federal offense that may result in an order of restitution;

; and

(2)in paragraph (2)— (A)by striking a banking violation and all that follows through healthcare offense and inserting a violation or offense identified in paragraph (1); and (B)by inserting or offense after traceable to such violation.

Amendments to the Federal Debt Collection Procedures Act

(a)

Process

Section 3004(b)(2) of title 28, United States Code, is amended by inserting after in which the debtor resides. the following: In a criminal case, the district court for the district in which the defendant was sentenced may deny the request.. (b)

Prejudgment remedies

Section 3101 of title 28, United States Code, is amended— (1)in subsection (a)(1) by inserting after the filing of a civil action on a claim for a debt the following: or in any criminal action where the court may enter an order of restitution; and (2)in subsection (d)— (A)by inserting after The Government wants to make sure [name of debtor] will pay if the court determines that this money is owed.’ the following:

In a criminal action, use the following opening paragraph: You are hereby notified that this [property] is being taken by the United States Government [the Government], which says that [name of debtor], if convicted, may owe as restitution $ [amount]. The Government says it must take this property at this time because [recite the pertinent ground or grounds from section 3101(b)]. The Government wants to make sure [name of debtor] will pay if the court determines that restitution is owed.

;

(B)by inserting after a statement that different property may be so exempted with respect to the State in which the debtor resides.]’ the following:

[In a criminal action, the statement summarizing the types of property that may be exempt shall list only those types of property that may be exempt under section 3613 of title 18.]

; and

(C)by inserting after You must also send a copy of your request to the Government at [address], so the Government will know you want the proceeding to be transferred.’ the following:

If this Notice is issued in conjunction with a criminal case, the district court where the criminal action is pending may deny your request for a transfer of this proceeding.

(c)

Enforcement

Section 3202(b) of title 28, United States Code, is amended— (1)by inserting after a statement that different property may be so exempted with respect to the State in which the debtor resides.]’ the following: [In a criminal action, the statement summarizing the types of property that may be exempt shall list only those types of property that may be exempt under section 3613 of title 18.] ; and (2)by inserting after you want the proceeding to be transferred.’ the following:

If this notice is issued in conjunction with a criminal case, the district court where the criminal action is pending may deny your request for a transfer of this proceeding.

10.

Authorization of appropriations

There are authorized to be appropriated to the Attorney General for enhancing the enforcement and litigation of criminal debts owed to victims of Federal criminal offenses $20 million for each of the fiscal years 2008 through 2012.