[Congressional Record Volume 142, Number 8 (Tuesday, January 23, 1996)]
[Senate]
[Pages S324-S326]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              VICTIMS RESTITUTION ENFORCEMENT ACT OF 1995

 Mr. ABRAHAM. Mr. President, I ask that the text of my bill, S. 
1504, the Victims Restitution Enforcement Act of 1995 be printed in the 
Record.
  The text of the bill follows:

                                S. 1504

       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.
     
[[Page S325]]

       ``(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)--
     
[[Page S326]]

       (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''.

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