[Congressional Record Volume 152, Number 135 (Friday, December 8, 2006)]
[Senate]
[Pages S11840-S11841]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


           PRESERVING CRIME VICTIM'S RESTITUTION ACT OF 2006

  Mr. FRIST. Mr. President, I ask unanimous consent that the Judiciary 
Committee be discharged from further consideration of S. 4055 and that 
the Senate proceed to its immediate consideration.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (S. 4055) to address the effect of the death of a 
     defendant in the Federal criminal proceedings.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. FRIST. Mr. President, I ask unanimous consent that the bill be 
read a third time and passed, the motion to reconsider be laid upon the 
table with no intervening action or debate, and that any statements 
relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 4055) was considered, ordered to be engrossed for a 
third reading, read the third time, and passed, as follows:

                                S. 4055


       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

[[Page S11841]]

       ``(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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