< Back to H.R. 4110 (110th Congress, 2007–2009)

Text of the Restitution for Victims of Crime Act of 2007

This bill was introduced on November 7, 2007, in a previous session of Congress, but was not enacted. The text of the bill below is as of Nov 7, 2007 (Introduced).

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I

110th CONGRESS

1st Session

H. R. 4110

IN THE HOUSE OF REPRESENTATIVES

November 7, 2007

introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend the Mandatory Victims’ Restitution Act to improve restitution for victims of crime, and for other purposes.

1.

Short title

This Act may be cited as the Restitution for Victims of Crime Act of 2007.

I

Collection of Restitution

101.

Short title

This title may be cited as the Collection of Restitution Improvement Act of 2007.

102.

Procedure for issuance and enforcement of restitution

Section 3664(f) of title 18, United States Code, is amended by striking paragraphs (2) through (4) and inserting the following:

(C)
(i)

Each restitution order shall—

(I)

contain information sufficient to identify each victim to whom restitution is owed;

(II)

require that a copy of the court order be sent to each such victim; and

(III)

inform each such victim of the obligation to notify the appropriate entities of any change in address.

(ii)

It shall be the responsibility of each victim to whom restitution is owed to notify the Attorney General, or the appropriate entity of the court, by means of a form to be provided by the Attorney General or the court, of any change in the victim’s mailing address while restitution is still owed to the victim.

(iii)

The confidentiality of any information relating to a victim under this subparagraph shall be maintained.

(2)

The court shall order that the restitution imposed is due in full immediately upon imposition.

(3)

The court shall direct the defendant—

(A)

to make a good-faith effort to satisfy the restitution order in the shortest time in which full restitution can be reasonably made, and to refrain from taking any action that conceals or dissipates the defendant’s assets or income;

(B)

to notify the court of any change in residence; and

(C)

to notify the United States Attorney for the district in which the defendant was sentenced of any change in residence, and of any material change in economic circumstances that might affect the defendant’s ability to pay restitution.

(4)

Compliance with all payment directions imposed under paragraphs (6) and (7) shall be prima facie evidence of a good faith effort under paragraph (3)(A), unless it is shown that the defendant has concealed or dissipated assets.

(5)

Notwithstanding any other provision of law, for the purpose of enforcing a restitution order, a United States Attorney may receive, without the need for a court order, any financial information concerning the defendant obtained by the grand jury that indicted the defendant for the crime for which restitution has been awarded, the United States Probation Office, or the Bureau of Prisons. A victim may also provide financial information concerning the defendant to the United States Attorney.

(6)
(A)

At sentencing, or at any time prior to the termination of a restitution obligation under section 3613 of this title, the court may—

(i)

impose special payment directions upon the defendant or modify such directions; or

(ii)

direct the defendant to make a single, lump sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.

(B)

The period of time over which scheduled payments are established for purposes of this paragraph shall be the shortest time in which full payment reasonably can be made.

(C)

In-kind payments may be in the form of the 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.

(D)

In ordering restitution, the court may direct the defendant to—

(i)

repatriate any property that constitutes proceeds of the offense of conviction, or property traceable to such proceeds; and

(ii)

surrender to the United States, or to the victim named in the restitution order, any interest of the defendant in any nonexempt asset.

(E)

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 for restitution.

(7)
(A)

In determining whether to impose or modify specific payment directions, the court may consider—

(i)

the need to provide restitution to the victims of the offense;

(ii)

the financial ability of the defendant;

(iii)

the economic circumstances of the defendant, including the financial resources and other assets of the defendant and whether any of those assets are jointly controlled;

(iv)

the projected earnings and other income of the defendant;

(v)

any financial obligations of the defendant, including obligations to dependents;

(vi)

whether the defendant has concealed or dissipated assets or income; and

(vii)

any other appropriate circumstances.

(B)

Any substantial resources from any source, including inheritance, settlement, or other judgment, shall be applied to any outstanding restitution obligation.

(8)
(A)

If the court finds that the economic circumstances of the defendant do not allow the payment of any substantial amount as restitution, the court may direct the defendant to make nominal payments of not less than $100 per year toward the restitution obligation.

(B)

Any money received from the defendant under subparagraph (A) shall be disbursed so that any outstanding assessment imposed under section 3013 is paid first in full.

(9)

Court-imposed special payment directions shall not limit the ability of the Attorney General to maintain an Inmate Financial Responsibility Program that encourages sentenced inmates to meet their legitimate financial obligations.

(10)
(A)

The ability of the Attorney General to enforce restitution obligations ordered under paragraph (2) shall not be limited by appeal, or the possibility of a correction, modification, amendment, adjustment, or reimposition of a sentence, unless the court expressly so orders for good cause shown and stated on the record.

(B)

Absent exceptional circumstances, as determined by the court, an order limiting the enforcement of restitution obligations shall—

(i)

require the defendant to deposit, in the registry of the district court, any amount of the restitution that is due;

(ii)

require the defendant to post a bond or other security to ensure payment of the restitution that is due; or

(iii)

impose additional restraints upon the defendant to prevent the defendant from transferring or dissipating assets.

(C)

No order described in subparagraph (B) shall restrain the ability of the United States to continue its investigation of the defendant’s financial circumstances, conduct discovery, record a lien, or seek any injunction or other relief from the court.

.

103.

Imposition of criminal fines and payment directions

Subsection 3572(d) of title 18, United States Code, is amended to read as follows:

(d)

Payment

(1)

In general

The court shall order that any fine or assessment imposed be due in full immediately upon imposition.

(2)

Efforts to make payment

The court shall—

(A)

direct the defendant to make a good-faith effort to satisfy the fine and assessment in the shortest time in which full payment can be reasonably made, and to refrain from taking any action that conceals or dissipates the defendant’s assets or income;

(B)

direct the defendant to notify the court of any change in residence; and

(C)

order the defendant to notify the United States Attorney for the district in which the defendant was sentenced of any change in residence, and of any material change in economic circumstances that might affect the defendant’s ability to pay restitution.

(3)

Good faith

Compliance with all payment directions imposed by paragraphs (5) and (6) shall be prima facie evidence of a good faith effort under paragraph (2)(A), unless it is shown that the defendant has concealed or dissipated assets;

(4)

Access to information

Notwithstanding any other provision of law, for the purpose of enforcing a fine or assessment, a United States Attorney may receive, without the need for a court order, any financial information concerning the defendant obtained by a grand jury, the United States Probation Office, or the Bureau of Prisons.

(5)

Payment schedule

(A)

In general

At sentencing, or at any time prior to the termination of a restitution obligation under section 3613 of this title, the court may—

(i)

impose special payment directions upon the defendant or modify such directions; or

(ii)

direct the defendant to make a single, lump sum payment, or partial payments at specified intervals.

(B)

Period of time

The period of time over which scheduled payments are established for purposes of this paragraph shall be the shortest time in which full payment can reasonably be made.

(C)

Repatriation

The court may direct the defendant to repatriate any property that constitutes proceeds of the offense of conviction, or property traceable to such proceeds.

(D)

Surrender

In ordering restitution, the court may direct the defendant to surrender to the United States any interest of the defendant in any non-exempt asset.

(E)

Third parties

If the court directs the defendant to repatriate or surrender any property in which it appears that any person other than the defendant may have a legal interest—

(i)

the court shall take such action as is necessary to protect such third party interest; and

(ii)

may direct the United States to initiate any ancillary proceeding to determine such third party interests in accordance with the procedures specified in section 413(n) of the Controlled Substances Act (21 U.S.C. 853(n)).

(F)

Exclusivity of remedy

Except as provided in this section, no person may commence an action against the United States concerning the validity of the party’s alleged interest in the property subject to reparation or surrender.

(G)

Preservation of property

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 for payment of the fine or assessment.

(6)

Considerations

In determining whether to impose or modify special payment directions, the court may consider—

(A)

the need to satisfy the fine or assessment;

(B)

the financial ability of the defendant;

(C)

the economic circumstances of the defendant, including the financial resources and other assets of the defendant, and whether any of those assets are jointly controlled;

(D)

the projected earnings and other income of the defendant;

(E)

any financial obligations of the defendant, including obligations to dependents;

(F)

whether the defendant has concealed or dissipated assets or income; and

(G)

any other appropriate circumstances.

(7)

Use of resources

Any substantial resources from any source, including inheritance, settlement, or other judgment shall be applied to any fine or assessment still owed.

(8)

Nominal payments

If the court finds that the economic circumstances of the defendant do not allow the immediate payment of any substantial amount of the fine or assessment imposed, the court may direct the defendant to make nominal payments of not less than $100 per year toward the fine or assessment imposed.

(9)

Inmate financial responsibility program

Court-imposed special payment directions shall not limit the ability of the Attorney General to maintain an Inmate Financial Responsibility Program that encourages sentenced inmates to meet their legitimate financial obligations.

(10)

Enforcement

(A)

In general

The ability of the Attorney General to enforce the fines and assessment ordered under paragraph (1) shall not be limited by an appeal, or the possibility of a correction, modification, amendment, adjustment, or reimposition of a sentence, unless the court expressly so orders, for good cause shown and stated on the record.

(B)

Exceptions

Absent exceptional circumstances, as determined by the court, an order limiting enforcement of a fine or assessment shall—

(i)

require the defendant to deposit, in the registry of the district court, any amount of the fine or assessment that is due;

(ii)

require the defendant to post a bond or other security to ensure payment of the fine or assessment that is due; or

(iii)

impose additional restraints upon the defendant to prevent the defendant from transferring or dissipating assets.

(C)

Other activities

No order described in subparagraph (B) shall restrain the ability of the United States to continue its investigation of the defendant’s financial circumstances, conduct discovery, record a lien, or seek any injunction or other relief from the court.

(11)

Special assessments

The requirements of this subsection shall apply to the imposition and enforcement of any assessment imposed under section 3013 of this title.

.

104.

Collection of unpaid fines or restitution

Section 3612(b) of title 18, United States Code, is amended to read as follows:

(b)

Information To Be Included in Judgment; judgment To be transmitted to the Attorney General

(1)

In general

A judgment or order imposing, modifying, or remitting a fine or restitution order of more than $100 shall include—

(A)

the name, social security account number, mailing address, and residence address of the defendant;

(B)

the docket number of the case;

(C)

the original amount of the fine or restitution order and the amount that is due and unpaid;

(D)

payment orders and directions imposed under section 3572(d) and section 3664(f) of this title; and

(E)

a description of any modification or remission.

(2)

Transmittal of copies

Not later than 10 days after entry of the judgment or order described in paragraph (1), the court shall transmit a certified copy of the judgment or order to the Attorney General.

.

105.

Attorney's fees for victims

(a)

Order of restitution

Section 3663(b) of title 18, United States Code, is amended—

(1)

in paragraph (1)—

(A)

in subparagraph (A), by striking or at the end;

(B)

by redesignating subparagraph (B) as subparagraph (C);

(C)

by inserting after subparagraph (A) the following:

(B)

reimburse the victim for attorneys' fees reasonably incurred in an attempt to retrieve damaged, lost, or destroyed property (which shall not include payment of salaries of Government attorneys); or

; and

(D)

in subparagraph (C), as so redesignated by this subsection, by inserting or (B) after subparagraph (A);

(2)

in paragraph (4)—

(A)

by inserting (including attorneys' fees necessarily and reasonably incurred for representation of the victim, which shall not include payment of salaries of Government attorneys) after other expenses related to participation in the investigation or prosecution of the offense; and

(B)

by striking and at the end;

(3)

in paragraph (5), by striking the period and inserting ; and; and

(4)

by adding at the end the following:

(6)

in any case, reimburse the victim for reasonably incurred attorneys' fees that are necessary and foreseeable results of the defendant's crime (which shall not include payment of salaries of Government attorneys).

.

(b)

Mandatory restitution to victims of certain crimes

Section 3663A(b) of title 18, United States Code, is amended—

(1)

in paragraph (1)—

(A)

in subparagraph (A), by striking or at the end;

(B)

by redesignating subparagraph (B) as subparagraph (C);

(C)

by inserting after subparagraph (A) the following:

(B)

reimburse the victim for attorneys' fees reasonably incurred in an attempt to retrieve damaged, lost, or destroyed property (which shall not include payment of salaries of Government attorneys); or

; and

(D)

in subparagraph (C), as so redesignated by this subsection, by inserting or (B) after subparagraph (A);

(2)

in paragraph (3), by striking and at the end;

(3)

in paragraph (4)—

(A)

by inserting (including attorneys' fees necessarily and reasonably incurred for representation of the victim, which shall not include payment of salaries of Government attorneys) after other expenses related to participation in the investigation or prosecution of the offense; and

(B)

by striking the period and inserting ; and; and

(4)

by adding at the end the following:

(5)

in any case, reimburse the victim for reasonably incurred attorneys' fees that are necessary and foreseeable results of the defendant's crime (which shall not include payment of salaries of Government attorneys).

.

II

Preservation of assets for restitution

201.

Short title

This title may be cited as the Preservation of Assets for Restitution Act of 2007.

202.

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 to believe that a defendant, if convicted, will be ordered to satisfy an order 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)

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.

(3)

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.

(4)

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 section analysis for 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.

.

203.

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.

204.

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..

III

Environmental crimes restitution

301.

Short title

This title may be cited as the Environmental Crimes Restitution Act of 2007.

302.

Immediate availability of restitution to victims of environmental crimes

Section 3663(a)(1)(A) of title 18, United States Code, is amended by striking or section 5124, 46312, 46502, or 46504 of title 49, and inserting paragraph (2) or (3) of section 309(c) of the Federal Water Pollution Control Act (33 U.S.C. 1319(c)), section 105(b) of the Marine Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. 1415(b)), section 9(a) of the Act to Prevent Pollution from Ships (33 U.S.C. 1908(a)), section 1423 or subsection (a) or (b) of section 1432 of the Safe Drinking Water Act (42 U.S.C. 300h–2 and 300i–l), subsection (d) or (e) of section 3008 of the Solid Waste Disposal Act (42 U.S.C. 6928), paragraph (1) or (5) of section 113(c) of the Clear Air Act (42 U.S.C. 7413(c)), or section 46312, 46502, or 46504 of title 49,.