# Criminal Restitution Proposals in the 110th Congress > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3ARL34139 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** January 13, 2009 - **Citation:** RL34139 ## Text ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ ˜—›Žœœȱ ‘Š›•Žœȱ˜¢•Žȱ Ž—’˜›ȱ™ŽŒ’Š•’œȱ’—ȱ–Ž›’ŒŠ—ȱž‹•’ŒȱŠ ȱ Š—žŠ›¢ȱŗřǰȱŘŖŖşȱ ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŝȬśŝŖŖȱ ǯŒ›œǯ˜Ÿȱ řŚŗřşȱ ȱŽ™˜›ȱ˜›ȱ˜—›Žœœ Prepared for Members and Committees of Congress ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ž––Š›¢ȱ Congress enacted two restitution provisions in the 110th Congress, one as part of the Identity Theft Enforcement and Restitution Act of 2008 (Title II of P.L. 110-326)(H.R. 5938), and the other as part of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (P.L. 110-403)(S. 3325). It devoted considerable time and attention to other restitution proposals as well. Restitution legislation in the 110th Congress fell into three categories. Some proposals, such as two provisions enacted, create or would have created new federal crimes or amend specific existing federal offenses and in doing so include restitution provisions particular to those offenses, e.g., P.L. 110-326 (intellectual property), P.L. 110-403 (identity theft); H.R. 880, H.R. 1582, H.R. 1692, S. 456, and S. 990 (gang bills); H.R. 6491 (organized retail offenses), H.R. 3148 (Mann Act), H.R. 3990 (sexual military offenses), and H.R. 871 (spousal support offenses). Other proposals would have addressed a particular aspect of the law such as abatement which limits restitution collection after the defendant’s death (S. 149/H.R. 4111). Two bills – H.R. 845, the Criminal Restitution Improvement Act, and S. 973/H.R. 4110, the Restitution for Victims of Crime Act – sought to make substantial changes in federal restitution law. They anticipated three kinds of adjustments: (1) an expansion of offenses for which restitution may be ordered without recourse to the laws relating to probation and supervised release; (2) an overhaul of the procedures governing the issuance and enforcement of restitution orders to afford prosecutors greater enforcement flexibility without having to seek the approval of the sentencing court; and (3) authority for preindictment and presentencing restraining orders and other protective measures to prevent dissipation of assets by those who may subsequently owe restitution. Although similar in many respects, S. 973/H.R. 4110 more closely resembles the proposals transmitted by the Justice Department. The provisions of H.R. 845 also appeared as Title V of the Violent Crime Control Act of 2007 (H.R. 3156/S. 1860); most of the language in S. 973/H.R. 4110 also appeared in Title VII of a subsequently tabled version of the Commerce, Justice, Science appropriations bill (H.R. 3903). This report is available in an abridged form – without footnotes, citations to most authorities and appendices – as CRS Report RS22709, Criminal Restitution in the 110th Congress: A Sketch. Related reports include CRS Report RL34138, Restitution in Federal Criminal Cases, available in abridged form as CRS Report RS22708, Restitution in Federal Criminal Cases: A Sketch, all by (name redacted). ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ˜—Ž—œȱ Introduction ..................................................................................................................................... 1 Newly Enacted Restitution Provisions ............................................................................................ 2 Intellectual Property Offenses................................................................................................... 2 Identity Theft............................................................................................................................. 2 Restitution for New or Existing Crimes .......................................................................................... 3 Military Crimes ......................................................................................................................... 3 Organized Retail Crime............................................................................................................. 3 Gang Crimes.............................................................................................................................. 3 Travel for Illicit Sexual Purposes.............................................................................................. 3 Spousal Support ........................................................................................................................ 4 Abatement ....................................................................................................................................... 4 General Revisions............................................................................................................................ 8 Mandatory Restitution (H.R. 845)............................................................................................. 9 Qualifying Offenses ............................................................................................................ 9 Qualifying Victims.............................................................................................................. 9 Qualifying Losses ............................................................................................................. 12 Discretionary Restitution (S. 973/H.R. 4110) ......................................................................... 14 Qualifying Offenses .......................................................................................................... 14 Qualifying Losses ............................................................................................................. 15 Procedural Adjustments (H.R. 845) ........................................................................................ 15 Primacy of Judicial Installment Schedules ....................................................................... 15 Presentencing Report ........................................................................................................ 16 Restitution Orders ............................................................................................................. 17 Procedural Adjustments (S. 973/H.R. 4110) ........................................................................... 19 Enforcement Flexibility .................................................................................................... 19 Inmate Financial Responsibility Program......................................................................... 19 Enforcement Pending Appeal ........................................................................................... 21 Prosecutors’ Access to Information................................................................................... 23 Other Modifications .......................................................................................................... 24 Collection Act (H.R. 845 and S. 973/H.R. 4110).................................................................... 25 Preconviction Asset Freeze (H.R. 845 and S. 973/H.R. 4110: Section 3664A)...................... 25 Anti-Crime Injunction Expansion (H.R. 845 and S. 973/H.R. 4110)...................................... 32 Fine Collection (S. 973/H.R. 4110)......................................................................................... 33 ˜—ŠŒœȱ Author Contact Information .......................................................................................................... 35 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ —›˜žŒ’˜—ȱ Restitution is the act of restoring an individual or entity in whole or in part to the lost circumstances they might have once enjoyed. In a federal criminal context, it is the order of a sentencing court directing a defendant to reimburse or otherwise compensate the victims of his crimes.1 Federal courts have no inherent authority to award restitution; they may do so only pursuant to statute.2 There are four general statutory sources of such authority. Under 18 U.S.C. 3663A, federal courts must order restitution when sentencing a defendant convicted of a crime of violence, of a crime against property or fraud or deceit that is proscribed in Title 18 of the United States Code, of maintaining drug-involved premises, of product tampering, or certain intellectual property offenses. Under 18 U.S.C. 3663, if restitution is not otherwise mandatory under Section 3663A, federal courts may nonetheless order restitution when sentencing a defendant convicted of an offense proscribed in Title 18 of the United States Code, or of various drug or aviation safety offenses. Under 18 U.S.C. 3563(b)(2), federal courts may make restitution a condition of probation.3 Under 18 U.S.C. 3583(d), they may make restitution a condition of supervised release.4 There are a handful of statutes that contain special restitution coverage for losses associated with particular crimes such as the failure to provide child support, 18 U.S.C. 228(d). The procedure for the exercise and implementation of federal restitution authority is set forth in large measure in 18 U.S.C. 3664, 18 U.S.C. 3611-3614, and to a lesser extent in 18 U.S.C. 3572. Restitution is based on the losses suffered by the victims of a crime. Neither the defendant’s financial condition at the time of sentencing nor his future economic prospects figure in the amount of restitution awarded. Consequently, in some cases, particularly those in which a restitution order is mandatory, the amount of restitution ordered may exceed what the defendant can ever reasonably be expected to pay.5 Nevertheless, there have been suggestions that in other instances insufficient restitution has been ordered or collected because of the particularities of restitution law.6 1 BLACK’S LAW DICTIONARY, 1339 (8th ed. 2004). United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006); United States v. Love, 431 F.3d 477, 479 (5th Cir. 2005); United States v. Mitchell, 429 F.3d 952, 961 (10th Cir. 2005); United States v. Rand, 403 F.3d 489, 493 (7th Cir. 2005). 3 By statute, probation is not a sentencing option where the defendant has been convicted of a class A or class B felony (i.e., felonies punishable by death, life imprisonment, or some maximum term of imprisonment of at least 25 years), 18 U.S.C. 3561, 3581. The Sentencing Guidelines are more restrictive and recommend against sentencing a defendant to probation for any crime for which the top of the recommended sentencing guideline range is more than imprisonment for one year, U.S.S.G. §5B1.1. 4 By statute when sentencing a defendant the court may also impose a term of supervised release to be served upon the defendant’s release from prison, 18 U.S.C. 3583. The Sentencing Guidelines recommend a term of supervised release whenever the defendant is sentenced to imprisonment for one year or more, U.S.S.G. §5D1.2. 5 United States Government Accountability Office, Criminal Debt: Court-Ordered Restitution Amounts Far Exceed Likely Collections for the Crime Victims in Selected Financial Fraud Cases, 2 (January 2005)(“[T]he collection of outstanding criminal debt is inherently difficult due to a number of factors, including the nature of the debt, in that it involves criminals who may be incarcerated, may have been deported, or may have minimal earning capacity; [and] the MVRA requirement that the assessment of restitution be based on actual loss and not on an offender’s ability to pay. . .”). 6 153 Cong. Rec. S3627 (daily ed. March 22, 2007). 2 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ Restitution legislation in the 110th Congress falls into three categories. Some proposals such as the gang crime bills would have create new federal crimes or amend specific existing federal offenses and in doing so include restitution provisions particular to those offenses. Other proposals addressed the consequences of abatement, the legal fiction under which a conviction and all of its consequences including restitution are washed away when the defendant dies during the pendency of his appeal. Still others would have provided for more general revisions of existing law in the area. Ž •¢ȱ—ŠŒŽȱŽœ’ž’˜—ȱ›˜Ÿ’œ’˜—œȱ —Ž••ŽŒžŠ•ȱ›˜™Ž›¢ȱŽ—œŽœȱ Restitution is a required consequence of a conviction for an offense against property proscribed in title 18 of the United States Code (“include crimes committed by fraud or deceit”).7 By virtue of section 206 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008, P.L. 110-403, 122 Stat. (2008), conviction for any of a number of intellectual property offenses also results in a mandatory restitution order.8 The same procedures apply as would in the case of other property offenses subject to mandatory restitution orders under the general provisions of 18 U.S.C. 3556, 3663A and 3664. The crimes covered by the new provision are proscribed in: 17 U.S.C. 506 (copyright infringement) 18 U.S.C. 2318 (trafficking in counterfeit labels) 18 U.S.C. 2319 (copyright infringement) 18 U.S.C. 2319A (trafficking in sound records) 18 U.S.C. 2319B (unauthorized motion picture recording) 18 U.S.C. 2320 (trafficking in counterfeit goods) 18 U.S.C. 1831 (economic espionage) 18 U.S.C. 1832 (theft of trade secrets). Ž—’¢ȱ‘Žȱ The Identity Theft Enforcement and Restitution Act,9 among other things, authorizes federal courts to order restitution for the victims of identity theft (18 U.S.C. 1028(a)(7)) and aggravated 7 18 U.S.C. 3663A(c)(1)(A)(ii). 18 U.S.C. 2332(c)(“When a person is convicted of an offense under section 506 of title 17 or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90 of this title, the court, pursuant to sections 3556, 3663A, and 3664 of this title, shall order the person to pay restitution to any victim of the offense as an offense against property referred to in section 3663A(c)(1)(A) (ii)”). 9 Title II of P.L. 110-326, 122 Stat. 3560 (2008)(H.R. 5938). 8 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ Řȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ identity theft (18 U.S.C. 1028A(a)) to compensate them for the time reasonably spent to undo the harm caused or intended by the theft.10 Žœ’ž’˜—ȱ˜›ȱŽ ȱ˜›ȱ¡’œ’—ȱ›’–Žœȱ ’•’Š›¢ȱ›’–Žœȱ Rape, sexual assaults, and other sexual offenses, as well as violations of civilian court protective orders are crimes under the United States Code of Military Justice, 10 U.S.C. 920, 1561a. Section 234 of Military Domestic and Sexual Violence Response Act (H.R. 3990)(Representative Slaughter) would have added a mandatory restitution provision for the benefit of the victims of such offenses, proposed 10 U.S.C. 1561c. ›Š—’£ŽȱŽŠ’•ȱ›’–Žȱ H.R. 6491 (Representative Ellsworth) would have made organized retail crime a federal offense, proposed 18 U.S.C. 2315. One of the consequences of conviction would have been a mandatory restitution order issued under the general mandatory restitution procedures of 18 U.S.C. 3556, 3663A and 3664, proposed 18 U.S.C. 2315(4). Š—ȱ›’–Žœȱ Existing federal law outlaws the commission of various federal crimes by street gangs.11 There were a number of proposals to amend or augment the existing federal offense. They included H.R. 880 (Representative Forbes), H.R. 1582 (Representative Schiff), H.R. 1692 (Representative Pallone), S. 456 (Senator Feinstein), S. 990 (Senator Menendez). In each instance, the proposals would have permitted the courts to order restitution as part of the sentence imposed for violation of their newly created or newly amended offenses.12 ›ŠŸŽ•ȱ˜›ȱ ••’Œ’ȱŽ¡žŠ•ȱž›™˜œŽœȱ At least three chapters in title 18 of the United States Code prohibit sexual misconduct. Chapter 109A condemns rape and similar forms of sexual abuse, 18 U.S.C. 2241-2248. Chapter 110 outlaws sexual exploitation of children and other forms of child abuse, 18 U.S.C. 2251-2260A. Chapter 117 proscribes interstate travel for illicit sexual purposes, 18 U.S.C. 2421-2428. Chapters 109A and 110 each have individual mandatory restitution provisions, 18 U.S.C. 2248, 2259. Chapter 117 has no comparable provision, although the courts enjoy discretion to order restitution under 18 U.S.C. 3663 or as a condition of probation or supervised release, 18 U.S.C. 3563(b)(2), 3583(d). H.R. 3148 (Representative Musgrave) would have added a mandatory restitution provision to chapter 117, proposed 18 U.S.C. 2429. 10 18 U.S.C. 3663(b)(6). 18 U.S.C. 521. 12 Proposed 18 U.S.C. 3663(c)(4): H.R. 880 (sec. 101(b)), H.R. 1582 (sec. 101(b)), H.R. 1692 (sec. 304(h)), S. 456 (sec. 101(b)), S. 990 (sec. 304(h)). 11 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ řȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ™˜žœŠ•ȱž™™˜›ȱ Existing federal law outlaws certain failures to pay child support and requires the court to award restitution upon conviction.13 H.R. 871 (Representative Wexler) proposed to outlaw the failure to pay court-ordered spousal property distribution and would have required the court to award restitution upon conviction.14 ‹ŠŽ–Ž—ȱ On October 17, 2006, a federal district court in Houston, Texas, vacated the conviction of, and dismissed the indictment of, former Enron executive Kenneth Lay. At the same time, it refused to order restitution for the victims of the crimes for which he had been convicted.15 Mr. Lay had died shortly after his conviction and the court felt that the doctrine of abatement recognized by the Fifth Circuit compelled its action.16 The Supreme Court once observed that the lower federal courts had consistently and correctly held that “death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception,” Durham v. United States, 401 U.S. 481 (1971). While its earlier practice had been to dismiss and remand upon the death of a petitioner pending a grant of certiorari, the Durham Court indicated that it did not consider important the distinction between death pending appeal and death pending a petition for certiorari, Id. at 483 n.* Later and without further explanation, the Court dismissed the petition for certiorari of a man who had died while his petition was pending. In doing so, it expressly overruled Durham to the extent of any inconsistency, Dove v. United States, 423 U.S. 325 (1976).17 Since then, the lower federal courts have read Dove to mean that abatement does not apply to petitions for certiorari, but have continued to adhere to their earlier general rule on abatement: upon the death of a defendant pending appeal the courts treat his indictment and conviction as if they had never occurred. The case is returned to the lower federal court with instructions to vacate the conviction and to dismiss the indictment.18 The circuit courts are somewhat more divided on the question of whether a restitution order likewise abates upon the death of the defendant pending appeal.19 13 18 U.S.C. 228. Proposed 18 U.S.C. 228A. 15 United States v. Lay, 456 F.Supp.2d 869, 870 (S.D. Tex. 2006). 16 Id. at 873-75. 17 The entire Dove per curiam opinion reads as follows, “The Court is advised that the petitioner died at New Bern, N.C., on November 14, 1974. The petition for certiorari is therefore dismissed. To the extent that Durham v. United States, 401 U.S. 481 (1972), may be inconsistent with ruling, Durham is overruled. It is so ordered,” 423 U.S. at 325. 18 United States v. Estate of Parsons, 367 F.3d 409, 413 (5th Cir. 2004)(en banc), citing, United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998); United States v. Logal, 106 F.3d 1547, 1551 (11th Cir. 1997); United States v. Davis, 953 F.2d 1482, 1486 (10th Cir. 1992); United States v. Wilcox, 783 F.2d 44, 44 (6th Cir. 1986); United States v. Oberlin, 718 F.2d 894, 895 (9th Cir. 1983); United States v. Pauline, 625 F.2d 684, 685 (5th Cir. 1980); and United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977). See also, United States v. Christopher, 273 F.3d 294, 297 (3d Cir. 2001); United States v. Pogue, 19 F.3d 663, 666 (D.C. Cir. 1994); United States v. Dudley, 739 F.2d 175, 176 (4th Cir. 1984); United States v. Littlefield, 594 F.2d 682, 683 (8th Cir. 1979). 19 United States v. Estate of Parsons, 367 F.3d at 415 (“According regardless of its purpose, the order of restitution cannot stand in the wake of Parsons’s death. Because he now is deemed never to have been convicted or even charged, (continued...) 14 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ Śȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ In the twilight of the 109th Congress, the Senate passed legislation that would have barred abatement of a restitution order.20 The bill’s sponsor, Senator Feinstein, re-introduced essentially the same proposal as S. 149 in the 110th Congress,21 which Representative Shea-Porter introduced in the House as H.R. 4111. There was no further action in the 110th Congress. Except for restitution and civil forfeiture, S. 149/H.R. 4111 would have replicated common law abatement for sentencing purposes.22 The obligation to pay fines and special assessments and apparently to honor conditions of probation or supervised release would have died with the defendant.23 S. 149/H.R. 4111 would not, however, have obligated the government to return funds received in payment of the defendant’s fine, special assessment or criminal forfeiture.24 For civil forfeitures,25 S. 149/H.R. 4111 would have eased the applicable statute of limitations and denied the application of abatement doctrine to civil forfeiture cases.26 For restitution, it would have essentially ignored the defendant’s death. More precisely, it would have allowed for substitution of the defendant’s representative and permitted restitution-related proceedings to continue as if the defendant were still alive. If the defendant, died after conviction but before being sentenced, S. 149/H.R. 4111 would have authorized a sentencing hearing and (...continued) the order restitution abates ab initio”); accord, United States v. Logal, 106 F.3d at 1552; but see, United States v. Christopher, 273 F.3d at 299(“We conclude that the order of restitution in this case is more compensatory in nature than penal. Historically, restitution, an equitable remedy, was intended to reimburse a person wronged by the actions of another. To absolve the estate from refunding the fruits of the wrongdoing would grant an undeserved windfall. We are persuaded that abatement should not apply to the order of restitution in this case, and thus, it survives against the estate of the deceased convict.”); accord, United States v. Dudley, 739 F.2d at 178; United States v. Pogue, 19 F.3d at 665 (“Because the government has conceded that Pogue’s estate has no assets against which any claim for restitution might be advanced, any questions concerning the survival of the restitution order raises a moot issue. We offer no opinion on this issue.”). 20 S. 4055, passed by unanimous consent, 152 Cong. Rec. S11840841 (daily ed. December 8, 2006). 21 Text and introductory statement at 153 Cong. Rec. S. 138-40 (daily ed. January 4, 2007). 22 Proposed 18 U.S.C. 3560(b)(2)(i)(“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”). 23 Id. 24 Proposed 18 U.S.C. 3560(b)(2)(B)(ii). This appears to be the case under existing law, United States v. Schumann, 861 F.2d 1234, 1236 (11th Cir. 1988). 25 Civil forfeiture is confiscation accomplished not as part of the criminal prosecution against the property owner but under a civil procedure ordinarily conducted in rem where the property is treated as the defendant, where confiscation turns upon whether the property is shown to have the statutorily required nexus to a particular crime, and where the owner’s guilt or innocence is not necessarily relevant, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974). 26 Proposed 18 U.S.C. 3560(e)(“(1) 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) 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 those time period otherwise authorized by law and two 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.”). There is some indication that civil forfeitures may not abate under existing law, United States v. 10380 S.W. 28th Street (Borroto), 214 F.3d 1291, 1294 (11th Cir. 2000)(“These abatement cases involving criminal defendants have never been applied to civil forfeiture cases under 21 U.S.C. 881(a)(7). It is doubtful that the rationale which governs the decision in criminal cases would ever be applied to a civil forfeiture”). ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ śȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ restitution order, with little said about exactly what procedures were to be followed.27 Thereafter, or if the defendant died after having been sentenced, the appellate process would have remained open to the defendant’s representative, victims, and the government for restitution-related matters.28 The abatement doctrine does not apply when the defendant dies after all appeals have been exhausted, but S. 149/H.R. 4111 would have addressed the question. It would have allowed for the issuance or continuation of any protective orders designed to prevent dissipation of assets that might be used to pay restitution.29 Even more interestingly, it would seem to have established a collection method reminiscent of forfeiture of estate and corruption of the blood: 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 the defendant.30 The provision seems straightforward enough for property or property interests held by the defendant at the time of his death. It becomes more intriguing for property or property interests that would otherwise have passed through the defendant to his heirs at some point after his death. 27 Proposed 18 U.S.C. 3560(b)(3)(A)(“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”). S. 149/H.R. 4111 would have provided for victim notification, for the appointment of representation of the deceased, and relaxes deadlines accordingly, proposed 18 U.S.C. 3560(d). Yet silence greets the question of whether the court and probation officer would have been required or allowed otherwise to proceed as if the defendant were still alive. 28 Proposed 18 U.S.C. 3560(c)(2)(“(A) If a defendant dies after being convicted in a criminal case but prior to sentencing or the exhaustion or waiver of direct appeal, 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) If a defendant dies after being convicted in a criminal case but prior to sentencing or the exhaustion or waiver of direct appeal, 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”). 29 Proposed 18 U.S.C. 3560(d)(2)(D)(“If restitution has not been fully collected on the date on which a defendant convicted in a criminal case dies . . . (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 taken any action necessary to preserve the availability of property for restitution under this section”). 30 Proposed 18 U.S.C. 3560(d)(2)(D)(i)(emphasis added). ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ Ŝȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ The Constitution denies Congress the power to punish treason with corruption of the blood or forfeiture of estate.31 Story lays out the background and reasons for the prohibition in his COMMENTARIES: It is well known, that corruption of blood, and forfeiture of the estate of the offender followed, as a necessary consequence at common law upon every attainder of treason. By corruption of blood all inheritable qualities are destroyed; so, that an attainted person can neither inherit lands, nor other hereditament from his ancestors, not retain those, he is already in possession of, nor transmit them to any heir. And this destruction of all inheritable qualities is so complete, that it obstructs all descents to his posterity, whenever they are obliged to derive a title through him to any estate of a remote ancestor. So, that if a father commits treason, and is attainted, and suffers death, and then the grandfather dies, his grandson cannot inherit any estate from his grandfather; for he must claim through his father, who could convey to him no inheritable blood. . .. In addition, to this most grievous disability, the person attainted forfeits, by the common law, all his lands, and tenements, and rights of entry, and rights of profits in lands or tenements, which he possesses. . .. But this view of the subject is wholly unsatisfactory. It looks only to the offender himself, and is regardless of his innocent posterity. It really operates, as a posthumous punishment upon them; and compels them to bear, not only the disgrace naturally attendant upon such flagitious crimes; but takes from them the common rights and privileges enjoyed by all other citizens, where they are wholly innocent, and however remote they may be in the lineage from the first offender. III STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 170-71, 172 (1833). Some courts have suggested that the due process clause embodies a comparable proscription against the use of forfeiture of estate and corruption of the blood as a punishment for other crimes.32 This view may gather some support from the fact that when the first Congress assembled it enacted a similar proscription for other crimes which continued in place for almost two centuries.33 S. 149/H.R. 4111 had one other interesting feature. Its amendments were to have been effective with respect to “any criminal case or appeal pending on or after July 1, 2007,” that is, to crimes occurring prior to that date as long as the prosecution or appeal was still pending then. The ex post facto clause of the Constitution generally forbids the retroactive application of criminal laws.34 The lower federal appellate courts are divided over the question of whether the Constitution’s ex post facto clause permits retroactive application of restitution amendments.35 31 “The Congress shall have power to declare the punishment for treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained,” U.S. Const. Art. III, §3, cl.2. 32 E.g., United States v. Grande, 620 F.2d 1026, 1038 (4th Cir. 1980)(“We would agree with Berg that if §1963 revives forfeiture of estate as that concept was expressed in the Constitution it is almost certainly invalid because of the irrationality of a ruling that forfeiture of estate cannot be imposed for treason but can be imposed for a pattern of less crimes”). 33 1 STAT. 117 (1790)(“That no conviction or judgment for any of the offenses aforesaid, shall work corruption of blood, or any forfeiture of estate”); see also, REV. STAT. §5326 (1876)(“No conviction or judgment shall work corruption of blood or any forfeiture of estate”); 18 U.S.C. 3563 (1964 ed.)(same). Forfeiture of estate involves confiscation of all of the offender’s property with no greater nexus to the crime than ownership by the offender; statutory forfeiture involves the confiscation of property derived from and used to facilitate the commission of a particular crime, Austin v. United States, 509 U.S. 602, 611-13 (1993). Nevertheless, Congress repealed the prohibition out of an apparent fear of inconsistency when it established the statutory criminal forfeiture that applies to property relating to racketeering offenses, S.Rept. 91-617 at 80 (1969). 34 U.S. Const. art. I, §9(“No . . . ex post facto law shall be passed”), see also, U.S. Const. Art. I, §10 (No state shall . . . pass any . . . ex post facto law); Stogner v. California, 539 U.S. 607, 612 (2003), citing, Calder v. Bull, 3 U.S. (3 Dall.) (continued...) ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŝȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ Ž—Ž›Š•ȱŽŸ’œ’˜—œȱ Two bills – H.R. 845, the Criminal Restitution Improvement Act, introduced by Representative Chabot, and S. 973/H.R. 4110, the Restitution for Victims of Crime Act, introduced by Senator Dorgan in the Senate and Representative Shea-Porter in the House – would have substantially changed federal restitution law.36 The bills reflected a Justice Department legislative proposal transmitted in the second session of the 109th Congress in identical letters to then House Speaker Hastert and to the President of the Senate, Vice President Cheney, which included a draft bill and accompanying section-by-section analysis.37 The proposals called for three kinds of modifications: (1) an expansion of offenses for which restitution may be ordered without recourse to the laws relating to probation and supervised release; (2) an overhaul of the procedures governing the issuance and enforcement of restitution orders to afford prosecutors greater enforcement flexibility without having to seek the approval of the sentencing court; and (3) authority for preconviction and presentencing restraining orders and other protective measures to prevent dissipation of assets by those who may subsequently owe restitution. Although similar in many respects, S. 973/H.R. 4110 more closely resembled the proposals transmitted by the Justice Department. H.R. 845 would have increased the number of crimes for which mandatory restitution was authorized; S. 973/H.R. 4110 would have increased the number for which discretionary restitution was authorized. They used virtually identical language to establish a protective order mechanism in order to prevent the dissipation of assets prior to conviction that might otherwise be available for purposes of restitution. While H.R. 845 would have recast 18 U.S.C. 3664 which governs much of how federal restitution orders are crafted and executed, S. 973/H.R. 4110 would have taken a more selective approach, weaving its alterations into the fabric of existing statute. (...continued) 386, 390-91 (1798)(Ex post facto clauses prohibit “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender”). 35 United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006)(ex post facto clause applies); accord, United States v. Grice, 319 F.3d 1174, 1177 (9th Cir. 2003); United States v. Schulte, 264 F.3d 656, 662 (6th Cir. 2001); United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998); United States v. Bapack, 129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997); United States v. Williams, 128 F.3d 1239, 1241 (8th Cir. 1997); United States v. Thompson, 113 F.3d 13, 15, n.1 (2d Cir. 1997); United States v. Rico Industries, Inc., 854 F.2d 710, 714 (5th Cir. 1988); contra, United States v. Baldwin, 414 F.3d 791, 800 (7th Cir. 2005); United States v. Nichols, 169 F.3d 1255, 1279-280 (10th Cir. 1999). 36 The proposals found in H.R. 845 also appear as Title V of the Violent Crime Control Act of 2007 (H.R. 3156 (Rep. Lamar Smith)/S. 1860 (Sen. Cornyn)); and those of S. 973/H.R. 4110 in the tabled version of H.R. 3093. 37 Letters to Honorable J. Dennis Hastert, Speaker, U.S. House of Representatives and Richard B. Cheney, President, U.S. Senate from Ass’t Att’y Gen. William E. Moschella, dated May 25, 2006. The letters, draft bill and analysis are cited below as the Letter, Draft Bill, and Analysis, respectively. They were available on October 15, 2008 at http://www.usdoj.gov/olp/pdf/052506_ltrs_to_ hastert_cheney.pdf-2007-04-18. ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ Şȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ Š—Š˜›¢ȱŽœ’ž’˜—ȱǻ ǯǯȱŞŚśǼȱ H.R. 845 would have replaced the discretionary and mandatory restitution provisions of sections 3663 and 3663A with mandatory provisions under a revised section 3663. In doing so, it would have changed the class of victims for whom restitution must be ordered; it would have changed the crimes for which restitution must be ordered; and it would have changed the types of injuries and losses for which restitution must be ordered. žŠ•’¢’—ȱŽ—œŽœȱ Existing law requires restitution for crimes of violence, maintaining a drug-involved premises, and, when prohibited in Title 18, fraud and crimes against property.38 It permits a court to order restitution for crimes otherwise proscribed in Title 18, as well as various aviation safety and drug offenses, and as a condition for probation and supervised release.39 It does not permit restitution orders in the case of most securities offenses, environmental offenses, drug offenses, or most of the other property crimes outlawed in other titles of the Code. H.R. 845 would have required restitution for all federal offenses: “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.”40 Other than through its definition of “victim” (person suffering a pecuniary loss proximately caused by an offense) and its description of types of injuries and loss its covers (pecuniary losses including those related to physical injury proximately caused by an offense), H.R. 845 did not further define the “offenses” that require mandatory restitution. It almost certainly was intended to cover any criminal offense proscribed by Act of Congress and triable before a court established under Article III of the Constitution. The suggestion that it was also intended to embrace tribal, military, and/or territorial offenses and/or relevant conduct related to any qualifying offenses seemed conceivable but not very likely.41 žŠ•’¢’—ȱ’Œ’–œȱ Existing law defines “victims” for purposes of mandatory restitution under section 3663A as (1) those designated victims in a plea agreement, (2) the estate of deceased victims, (3) those directly 38 18 U.S.C. 3663A. 18 U.S.C. 3663, 3563(b), 3583(d). 40 Proposed 18 U.S.C. 3663(a). 41 In the setting arguably most comparable, the federal law governing bail defines “offense” as “any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress,” 18 U.S.C. 3156(a)(2). The Speedy Trial Act uses a similar but slightly more narrow definition: “As used in this chapter . . . the term ‘offense’ means any federal criminal offense which is in violation of an Act of Congress and is triable in any court established by Act of Congress (other than a Class B or C misdemeanor or an infraction, or an offense triable by courtmartial, military commission, provost court, or other military tribunal),” 18 U.S.C. 3172(2). The United States Sentencing Guidelines is more expansive and defines “offense” as “the offense of conviction and all relevant conduct under §1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context. . .” U.S.S.G. §1B1.1 Application Note 1.(H). Of course, the Guidelines are only applicable to the federal criminal justice system, i.e., to any federal criminal offense which is in violation of an Act of Congress and is triable in any court established by Act of Congress, 28 U.S.C. 991(b)(1); 18 U.S.C. 3553, 3551. 39 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ şȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ and proximately harmed by a qualifying offense, (4) those harmed by the scheme, conspiracy, or pattern of criminal activity of a defendant convicted of a qualifying offense which has as one of its elements such a scheme, conspiracy, or pattern of criminal activity, and (5) in the case of children, the incompetent, incapacitated, or deceased: legal guardians, family members, and other representatives.42 H.R. 845 would have defined the five classes of victims entitled to mandatory restitution somewhat differently to encompass: • Identifiable individuals and entities who suffer a pecuniary loss proximately caused by the offense,43 • Identifiable individuals and entities who suffer a pecuniary loss as a consequence of a physical injury to another proximately caused by the offense,44 • The successors to any such direct or third party victims,45 • Anyone the parties agree to in a plea bargain,46 and • Anyone otherwise provided by law.47 Like existing law, H.R. 845 would have permitted restitution for a wider range of victims pursuant to a plea bargain.48 Furthermore, H.R. 845 would have insisted upon restitution for those who suffer losses as a proximate cause of a qualifying offense, even though it envisioned a wider range of qualifying offenses than recognized under existing law.49 Third, in somewhat varied terms, H.R. 845 would have admitted the possibility that, faced with a host of victims or an exceedingly complex factual environment, full restitution for all victims need not be required.50 42 18 U.S.C. 3663A(a)(3), (1), (2). Proposed 18 U.S.C. 3663(a), (b)(2)(A). 44 Id. 45 Id. 46 Proposed 18 U.S.C. 3663(b)(2)(B). 47 Id. 48 Proposed 18 U.S.C. 3663(b)(2)(B)(“As used in this section and section 3664, the term ‘victim’ means . . . (B) others, as agreed to in a plea agreement . . .”). 18 U.S.C. 3663A(a)(3)(“The court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense”). 49 Proposed 18 U.S.C. 3663(a)(“The court shall order a convicted defendant to make restitution for all pecuniary loss to identifiable victims . . . proximately resulting from the offense”). 18 U.S.C. 3663A(a)(“. . . when sentencing a defendant convicted of an offense described in subsection (c), the court shall order . . . that the defendant make restitution to the victim of the offense. . .. For purposes of this section, the term ‘victim’ means a person directly and proximately harmed as a result of the commission of the offense for which restitution may be ordered . . .”). 50 Proposed 18 U.S.C. 3663(e)(“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”). 18 U.S.C. 3663A(c)(3)(“This section shall not apply in the case of an offense described in paragraph (continued...) 43 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗŖȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ Perhaps the most obvious difference produced by H.R. 845‘s description of the victims entitled to restitution was its silence on the extent to which victims of misconduct collateral to the crime of conviction could have been entitled to restitution. Section 3663A now requires restitution for a limited class of individuals who are not victims of the defendant’s crime of conviction strictly speaking. That is, it recognizes as a victim entitled to restitution “any person directly harmed by the defendant’s criminal conduct in the course of [a] scheme, conspiracy or pattern,” if the offense “involves as an element a scheme, conspiracy, or pattern of criminal activity.”51 Under this provision, victims of the same scheme but of a different episode of the scheme than that for which the defendant was convicted may be entitled to restitution.52 There was no comparable language in H.R. 845. The second major difference flowed from H.R. 845‘s depiction of those who do not fit the traditional concept of primary victims, but who are entitled to restitution nonetheless. Existing law treats a victim’s estate as the victim if the victim is dead.53 If the victim is a child, incompetent, or incapacitated, existing law allows the victim’s legal guardian, a member of the victim’s family, or a court appointed representative to assume the victim’s interest.54 Existing law also realizes that parents, insurance carriers, and other third parties who assume or provide compensation for the victim’s losses, may be entitled to restitution.55 H.R. 845 would have replicated the provision of existing law covering insurance carriers and similarly situated third parties and when restitution takes the form of in-kind services,56 but (...continued) (1)(A)(ii)[relating to fraud and property damage offenses] if the court finds, from facts on the record, that – (A) the number of identifiable victims is so large as to make restitution impracticable; or (B) determining complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process”). 51 18 U.S.C. 3663A(a)(2). 52 United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006)(“The crime covered by §1341is the scheme to defraud, not (just) the mailings that occur in the course of the scheme; This indictment laid out, and the Injury convicted Belk of, a multi-year scheme to defraud Rogge’s brokerage. The eight mailings [listed in the indictment] were just overt acts. Restitution for the whole scheme is in order”); United States v. Dickerson, 370 F.3d 1330, 1342 (11th Cir. 2004) (“Therefore, we hold that where a defendant is convicted of a crime of which a scheme is an element, the district court must under 18 U.S.C. 3663A, order the defendant to pay restitution to all victims for the losses they suffered from the defendant’s conduct in the course of the scheme, even where such losses were caused by conduct outside of the statute of limitations”); see also, United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir 2003)(“the losses caused by the entire conspiracy, not just the losses caused by those acts committed by the defendant, can be attributed to the defendant when the district court orders restitution”); United States v. Bright, 353 F.3d 1114, 1120 (9th Cir. 2004)(“Bright similarly pled guilty to multiple counts of mail fraud, thus acknowledging his participation in a scheme to defraud. The district court therefore properly ordered restitution for losses caused by the dismissed conduct related to this scheme”); but see, United States v. Polichemi, 219 F.3d 698, 714 (7th Cir. 2000)(defendant convicted of fraud may nevertheless not be ordered to pay restitution to victims harmed by conduct for which he was acquitted). 53 18 U.S.C. 3663A(a)(1). 54 18 U.S.C. 3663A(a)(2). 55 18 U.S.C. 3664(j)(1)(insurance carriers and other sources of compensation); see also, United States v. Johnson, 400 F.3d 187, 199-201(4th Cir. 2005)(“a district court properly orders restitution to be paid to a third party when the party bears the cost of providing necessary medical care to a victim of a covered offense who suffered bodily injury as a result of the offense”); United States v. Hayward, 359 F.3d 631, 642 (3d Cir. 2004)(restitution order for the parents whose children had been transported to London for illicit sexual purposes with the terse observation that the parents “incurred reasonable costs in obtaining the return of their victimized children from London and in making their children available to participate in the investigation and trial. The restitution order will therefore be affirmed”). 56 Proposed 18 U.S.C. 3664(n)(1)(“ . . . 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 (continued...) ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗŗȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ otherwise spoke simply of successors and those who suffer losses as a result of physical injuries to another proximately caused by defendant’s crime.57 H.R. 845 made no express mention of the victim’s estate or representative or of the assumption of the victim’s rights. Some courts may have felt that the change was intended to mean that the right of victims to restitution dies with them,58 although their parents and estates may be entitled to restitution for related costs which they incur.59 On the other hand, it may have been that the bill contemplated that the estate and heirs of a deceased victim would be considered the victim’s “successors,” and therefore entitled to restitution in the victim’s stead.60 Conversely, at least in the case of human victims, the classification of successors as victims could have been intended to signal no more than the fact that victims might assign their right to restitution, if only during their lifetime.61 H.R. 845 would not have classified as victims those who were otherwise provided for by law.62 It would have repealed some, but not all, of the existing individual restitution statutes that provide alternative coverage. Gone would have been the individual restitution statutes governing human trafficking, sexual abuse, sexual exploitation of children, domestic violence, and telemarketing fraud.63 Continuing on would have been the probation, supervised release, or animal enterprise restitution provisions.64 Victims as defined in the survivors statutes, and other similarly situated statutes were presumably what was meant when H.R. 845 spoke of victims as otherwise provided by law. žŠ•’¢’—ȱ˜œœŽœȱ Existing law treats the restitution for property losses in one way (return and/or payment of the lost value) and the restitution for crime-related physical injuries in another (coverage of medical expenses, costs of rehabilitation, funeral costs when victim has been killed, and the victims’ expenses relating to their participation in the investigation and prosecution of the qualifying offense).65 (...continued) compensation . . .”); proposed 18 U.S.C. 3664(o)(“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”). 57 Proposed 18 U.S.C. 3663(b)(2)(“. . . the term ‘victim’ means (A) each identifiable person or entity suffering the pecuniary loss (and any successor to that person or entity”)); proposed 18 U.S.C. 3663(a)(“The court shall order a convicted defendant to make restitution for . . . pecuniary loss resulting from physical injury to, or the death of, another, proximately resulting from the offense”). 58 In civil cases, the death of the defendant may discharge the right of the victim to recover further damages, see, RESTATEMENT (SECOND) OF TORTS §§900(1)(a), 926 (1977). 59 “The court shall order a convicted defendant to make restitution for all . . . pecuniary loss resulting from injury to or the death of another, proximately resulting from the offense,” proposed 18 U.S.C. 3663(a). 60 “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). . .” proposed 18 U.S.C. 3663(b)(2)(A). 61 In a later section, the bill expressly authorizes victims to assign their rights to restitution to the Crime Victims Fund, proposed 18 U.S.C. 3664(u). 62 Proposed 18 U.S.C. 3663(b)(2)(B). 63 H.R. 845, sec. 5(a)(1), proposing repeal of 18 U.S.C. 1593, 2248, 2259, 2264, and 2327. 64 18 U.S.C. 3563(b), 3583(d), 43(c). 65 18 U.S.C. 3663A(b)(1), (2). ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗŘȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ H.R. 845 essentially would have merged the two, eliminating the distinction and expanding coverage. It called for restitution regardless of the nature of the crime – fraud, property damage, or physical injury offenses.66 Its vindication expenses clause ran parallel to existing law, but would have made specific allowance to cover the costs of attorneys other than those employed by the government.67 It would have carried forward the language under which restitution orders must include “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.”68 And it would have used the same language to describe restitution for lost income, medical expenses, and the cost of rehabilitation – with a difference. Existing law makes them a matter of mandatory restitution only with respect to offenses involving physical injuries; H.R. 845 would have recognized no such distinction.69 As noted earlier, H.R. 845 would have expressly repealed the individual restitution provisions now found in 18 U.S.C. 1593 (human trafficking), 2248 (sexual abuse), 2259 (sexual exploitation of children), 2264 (domestic violence), and 2327 (telemarketing fraud).70 Since it would have extended mandatory restitution to all federal offenses, the most obvious implication of the amendment would have been a change in the type of losses which qualify for restitution. For instance, the human trafficking, sexual abuse, sexual exploitation, and domestic violence sections in existing law cover necessary transportation, temporary housing, and child care expenses, as well as attorney fees, generally.71 H.R. 845 only would have covered them when they has been “incurred during participation in the investigation and prosecution of the offense or attendance at proceedings relating to the offense.”72 The trafficking section also has an income loss calculation unknown to the bill.73 H.R. 845 would have left as they stand the individual features of 18 U.S.C. 43(c) (animal enterprise terrorism) which authorize restitution orders covering a range of economic damages that appear to be beyond H.R. 845‘s reach. When H.R. 845 merged sections 3663 and 3663A into a revised section 3663 it would have repealed sub silentio subsection 3663(c) which permits a restitution order in favor of state victim assistance and drug agencies upon a conviction for various controlled substance offenses. 66 Proposed 18 U.S.C. 3663(c)(2), (3), (4). “. . . 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 proposed 18 U.S.C. 3663(c)(5)(language added to existing law in italics). 68 Proposed 18 U.S.C. 3663(c)(b); 18 U.S.C. 3663A(b)(3). 69 “[I]n the case of an offense resulting in bodily injury to a victim – (A) pay 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; (B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and (C) reimburse the victim for income lost by such victim as a result of such offense,” 18 U.S.C. 3663A(b)(2). 70 H.R. 845, §5(1). 71 18 U.S.C. 1593(b)(3), 2248(b)(3), 2259(b)(3), 2264(b)(3). 72 Proposed 18 U.S.C. 3663(c)(5). 73 “As used in this subsection, the term ‘full amount of the victim’s losses’ . . .shall in addition include the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act (29 U.S.C. 201 et seq.).” 67 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗřȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ With the merger, H.R. 845 presumably intended to bring individual restitution laws such as 18 U.S.C. 228(d) (failure to pay child support) which would have continued to cross reference section 3663A within the coverage of the new section 3663.74 Those laws define the losses for which restitution may be ordered solely by their cross references to section 3663A (repealed by the bill). Since the bill would have provided for mandatory restitution upon conviction for any federal offense, presumably including violations of 18 U.S.C. 228 and any other statute carrying similar obsolete baggage, the failure to adjust the references to section 3663A may well have been a harmless scrivener’s error. ’œŒ›Ž’˜—Š›¢ȱŽœ’ž’˜—ȱǻǯȱşŝřȦ ǯǯȱŚŗŗŖǼȱ žŠ•’¢’—ȱŽ—œŽœȱ S. 973/H.R. 4110‘s expansion of authority to order restitution would have been far more selective than that of H.R. 845. Under 18 U.S.C. 3663 of present law, federal courts may, but need not, order restitution following conviction for crimes for which mandatory restitution is not required and which are proscribed in Title 18 of the United States Code and for various drug and aviation safety statutes.75 S. 973/H.R. 4110 would have amended section 3663 to permit a federal court to order restitution following conviction for any of a series of environmental crimes: • 33 U.S.C. 1319(c)(2), (3) (Federal Water Pollution Control Act offenses); • 33 U.S.C. 1415(b)(Marine Protection, Research, and Sanctuaries Act offenses); • 33 U.S.C. 1908(a) (Act to Prevent Pollution from Ships offenses); • 42 U.S.C. 300h-2, 300i-1 (Safe Drinking Water Act offenses); • 42 U.S.C. 6928 (Solid Waste Disposal Act offenses); and • 42 U.S.C. 7413(c)(1), (5) (Clean Air Act offenses). The Justice Department’s Analysis notes that in spite of the fact that various environmental felonies can result in economic loss, physical injury, and even death, restitution can only be awarded the victims of various environmental felonies as a condition of probation or supervised release.76 It also suggests that a close examination of the legislative history of 18 U.S.C. 3663 demonstrates that the rationale for excluding various economic and other regulatory offenses from the list of qualified offenses cannot easily be applied to the environmental offenses.77 74 18 U.S.C. 228(d)(“Upon a conviction under this section, the court shall order restitution under section 3663A in an amount equal to the total unpaid support obligation as it exists at the time of sentencing”). 75 18 U.S.C. 3663. Restitution is mandatory following conviction for crimes of violence, property damage, fraud, and product tampering, 18 U.S.C. 3663A. 76 Analysis, at 21. 77 Id. at 22-3. Critics might respond that deficiencies in federal environmental laws might more appropriately be considered in the context of those laws rather than as an aspect of general criminal law enforcement. ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗŚȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ žŠ•’¢’—ȱ˜œœŽœȱ S. 973/H.R. 4110 would have amended the discretionary and mandatory restitution provisions of sections 3663 and 3663A to permit victims to recover related attorney fees, other than those of government attorneys, incurred in an effort to retrieve their damaged, lost, or stolen property.78 ›˜ŒŽž›Š•ȱ“žœ–Ž—œȱǻ ǯǯȱŞŚśǼȱ ›’–ŠŒ¢ȱ˜ȱ ž’Œ’Š•ȱ —œŠ••–Ž—ȱŒ‘Žž•Žœȱ The procedure for issuing a restitution order is laid out in 18 U.S.C. 3664. Following conviction, a probation officer conducts an investigation, collects information from the prosecutor, victims and defendant, and prepares a report for the court which is shared with the parties.79 The court conducts a hearing to resolve any questions relating to whether a particular individual is a victim entitled to restitution, whether a particular loss is one that qualifies for restitution, and the specifics of the defendant’s ability to pay.80 Court-issued restitution orders may direct the defendant to pay in a lump sum, in installments, in-kind or in some combination of the three.81 Until full restitution is made, the court may modify its order to reflect any change in the defendant’s financial circumstances.82 The Justice Department contends that the role which the statute assigns to the courts impedes effective collection of restitution and has recommended amendments: [S]ome circuit courts of appeal have interpreted one clause in 18 U.S.C. 3664(f)(2) . . . to require that a mandatory payment schedule be set at the time of sentencing. Therefore, the current legislative scheme impedes the effective enforcement of criminal monetary penalties, including restitution. The enforcement of restitution would be enhanced substantially if Congress were to amend 18 U.S.C. 3664(f)(2) to clarify that restitution is due immediately upon the imposition of a restitution order. . .. Another major change to the statute clarifies that a payment schedule set by a court at sentencing is only a minimum obligation of the offender. Current 18 U.S.C. 3664(f)(2) has undermined the efforts of the United States to enforce restitution because courts of appeal have interpreted it to require the imposition, at every sentencing, of an exclusive court-imposed payment plan. This limits the ability of the United States to enforce restitution using other available civil and administrative enforcement methods. As a result, district courts generally impose minimal payment plans upon the defendant that cannot thereafter be changed except by the court and upon a showing of a substantial change in the defendant’s economic circumstances. Letter at 1. The appellate decisions to which the Letter alludes have held that the sentencing court must set any installment payment schedule. It may not make “restitution due and payable immediately” when the defendant had no realistic means of complying. “Such an arrangement effectively 78 Proposed 18 U.S.C. 3663(b)(1)(B), (4), (6); proposed 18 U.S.C. 3663A(b)(1)(B), (4), (5). 18 U.S.C. 3664(a), (b), (d). 80 18 U.S.C. 3664(e) 81 18 U.S.C. 3664(f). 82 18 U.S.C. 3664(k). 79 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗśȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ transfers the district court’s responsibility for setting a restitution schedule to the probation office [or to prison authorities], which is inconsistent with the statute.”83 Both H.R. 845 and S. 973/H.R. 4110 would have amended section 3664 to meet the Justice Department’s objections. Section 3664(f) now states that “the court shall order restitution to each victim in full. . ..”84 And “the court shall, pursuant to section 3572, specify in the restitution order the manner in which, the schedule according to which, the restitution is to be paid. . ..”85 Under H.R. 845, this language would have disappeared and been replaced with a statement that “[u]pon 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.”86 Furthermore “The court may provide for payment in installments according to a schedule. . ..”87 And “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.”88 All of which appears to mean that H.R. 845‘s amendments were intended to permit the court to establish a payment schedule, but to allow the government to formulate one if the court did not. Moreover, the fact that the court had established a payment schedule would not have prevented the government from supplementing the effort with other collection measures taken without the need to seek the sentencing court’s approval. ›ŽœŽ—Ž—Œ’—ȱŽ™˜›ȱ H.R. 845 would have amended section 3664 in a number of other ways, some of which appear in the earlier recommendations of the Justice Department and some of which do not.89 Present law gives the prosecutor 60 days prior to the date set for sentencing to supply the probation officer with a list of the victims of the crime of conviction and the amounts of their losses.90 H.R. 845 83 United States v. Thigpen, 456 F.3d 766, 771 (7th Cir. 2006)(“[W]e explicitly oppose[ ] a district court’s attempt to minimize its responsibility to set a restitution schedule by ordering ‘immediate’ payment. Such an arrangement effectively transfers the district court’s responsibility for setting a restitution schedule to the probation office, which is inconsistent with the statute”); see also, United States v. Ahidley, 486 F.3d 1184, 1191-193 (10th Cir. 2007); United States v. Gunning, 401 F.3d 1145, 1149-150 (9th Cir. 2005); United States v. Davis, 306 F.3d 398, 425-26 (6th Cir. 2002); United States v. Prouty, 303 F.3d 1249, 1253-254 (11th Cir. 2002); United States v. McGlothlin, 249 F.3d 783, 784-85 (8th Cir. 2001); United States v. Coates, 178 F.3d 681, 685 (3d Cir. 1999); United States v. Kinlock, 174 F.3d 297, 301 (2d Cir. 1999). 84 18 U.S.C. 3664(f)(1)(A). 85 18 U.S.C. 3664(f)(2)(emphasis added). Section 3572(c)(1) provides that “A person sentenced to pay a fine or other monetary penalty, including restitution, shall make such payment immediately, unless, in the interest of justice, the court provides for payment on a date certain or in installments . . . .” S. 973/H.R. 4110would have amended section 3572 and eliminates its application to restitution; H.R. 845 would not. 86 Proposed 18 U.S.C. 3664(j)(1)(emphasis added). 87 Proposed 18 U.S.C. 3664(j)(2)(emphasis added). 88 Proposed 18 U.S.C. 3664(j)(4)(emphasis added). 89 S. 973/H.R. 4110‘s proposed amendments to section 3664 track the Justice Department proposed bill much more closely. 90 18 U.S.C. 3664(d)(1)(“Upon the request of the probation officer, but not later than 60 days prior to the date initially set for sentencing, the attorney for the government, after consulting, to the extent practicable, with all identified victims, shall promptly provide the probation officer with a listing of the amounts subject to restitution”) ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗŜȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ would have relaxed the provision striking the time deadline.91 Unlike existing law, it would have insisted that the report be shared with victims upon their request.92 H.R. 845 would have dropped the statement now found in section 3664(c) that identifies the external provisions of law that govern the proceedings.93 The omission may have been intended merely to eliminate a redundancy, but it may do a little more. Among the provisions now said to govern the proceedings is Rule 32(c)(2) of the Federal Rules of Criminal Procedure, which states that, “The probation officer who interviews a defendant as part of a presentence investigation must, on request, give the defendant’s attorney notice and a reasonable opportunity to attend the interview.”94 The omission may have been intended to indicate that the probation officer is no longer required to invite the defendant’s attorney to interviews with the defendant conducted for restitution information-gathering purposes. On the other hand, H.R. 845 would neither have repealed nor amended the Rule, and on its face it would have required an invitation whether the presentence investigation interview were related to restitution or some other sentencing issue. Žœ’ž’˜—ȱ›Ž›œȱ Under existing law, the court may consider a defendant’s financial circumstances when deciding how and when restitution must be paid.95 It may not consider them when deciding whether and in what amounts its must be paid.96 Perhaps to avoid confusion, H.R. 845 would have stricken the language in section 3664 that now instructs the court to ignore the defendant’s ability to pay when crafting the restitution order.97 The general tenor of the bill, however, belies any intent to have allowed a court to reduce the amount of restitution it might otherwise award based on the defendant’s economic circumstances. As with existing law, the timing and scheduling of the defendant’s restitution payments under the order must be based on the defendant’s obligations and resources (present and anticipated).98 The court could still have made multiple defendants jointly and severally liable for restitution, although H.R. 845 would have pruned the court’s authority to apportion restitution among 91 “The attorney for the government shall provide the probation officer any information the attorney for the government has relevant to the matters required to be reported under subsection (a) [preparation of the restitution report],” proposed 18 U.S.C. 3664(c). S. 973/H.R. 4110 has no comparable provision. 92 Proposed 18 U.S.C. 3664(b). S. 973/H.R. 4110 has no comparable provision. 93 “The provisions of this chapter [18 U.S.C. 3661-3673], chapter 227 [18 U.S.C. 3601-3626] and Rule 32(c) of the Federal Rules of Criminal Procedure shall be the only rules applicable to proceedings under this section,” 18 U.S.C. 3664(c). S. 973/H.R. 4110 would have left section 3664(c) untouched. 94 F.R.Crim.P. 32(c)(2). 95 18 U.S.C. 3664(f)(2). 96 18 U.S.C. 3664(f)(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”). 97 18 U.S.C. 3664(f)(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”); proposed 18 U.S.C. 3664(j)(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”). 98 That is based upon, “(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,” proposed 18 U.S.C. 3664(j)(2)(A)-(C); 18 U.S.C. 3664(f)(2)(A)-(C). ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗŝȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ multiple defendants.99 In the case of multiple victims, H.R. 845 would have used a compressed style to the same effect as existing law.100 It used the same approach when providing for restitution for insurance carriers and similarly situated third parties.101 Defendants would have continued to have the opportunity and obligation to notify the court and the government of any change in their financial situation.102 H.R. 845 would have added a further requirement that victims notify the court if they change their name or mailing address.103 It would have also amended existing law to prolong a defendant’s probationary period and term of supervised release as long as restitution is still owed, although during the extension the obligation to pay restitution is the only condition that remains in effect.104 99 18 U.S.C. 3664(h)(“If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant 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”); proposed 18 U.S.C. 3664(l)(“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”). S. 973/H.R. 4110 has no comparable provision. “[B]eing jointly and severally liable means that each individual remains responsible for payment of the entire liability, so long as any part is unpaid,” United States v. Scop, 940 F.2d 1004, 1010 (7th Cir. 1991), citing, RESTATEMENT (SECOND) OF TORTS §875 (1979). 100 Proposed 18 U.S.C. 3664(p)(“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”); 18 U.S.C. 3664(i)(“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 the type and amount of each victim’s loss and 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 other victims receive full restitution before the United States receives any restitution”). 101 Proposed 18 U.S.C. 3664(n)(“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. If a victim has received 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”); 18 U.S.C. 3664(f)(1)(B)(“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”); 18 U.S.C. 3664(j)(1)(“If a victim has received 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 restitution of victims required by the order be paid to the victims before any restitution is paid to such a provider of compensation”). 102 Proposed 18 U.S.C. 3664(q); 18 U.S.C. 3664(k). 103 Proposed 18U.S.C. 3664(r)(“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.”). The comparable provision in S. 973/H.R. 4110 gives victims the option of notifying the Attorney General instead and covers only the victim’s change of address; there is no mention of a change of name, S. 973/H.R. 4110, proposed 18 U.S.C. 3664(f)(1)(C)(ii). 104 Proposed 18 U.S.C. 3664(m)(“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.”). Section 4 of H.R. 845 would have made comparable adjustments in federal probation law, proposed 18 U.S.C. 3564(f). S. 973/H.R. 4110 had no comparable provisions. ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗŞȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ H.R. 845 would have accepted without change most of the existing mechanisms for enforcing restitution orders. This would have included liens on the defendant’s property that can be enforced either by the government or the victim,105 the authority of probation officers to enforce in-kind restitution orders,106 and the estoppel provision that would have precluded the defendant from challenging any of the underlying facts of the crime of conviction in related civil litigation.107 In addition, H.R. 845 would have empowered the court to order the defendant to take action to facilitate restitution including the reparation of assets located overseas.108 In a later section, it would have created a new enforcement mechanism under which it vests the courts with authority to freeze the property of defendants and potential defendants before indictment or sentencing in order to ensure the preservation of their assets for restitution purposes.109 ›˜ŒŽž›Š•ȱ“žœ–Ž—œȱǻǯȱşŝřȦ ǯǯȱŚŗŗŖ)ȱ —˜›ŒŽ–Ž—ȱ•Ž¡’‹’•’¢ȱ Like H.R. 845, more than a few of S. 973/H.R. 4110‘s amendments were crafted to provide alternatives to direct involvement of the court in restitution enforcement. Some addressed the courts’ exclusive control of the scheduling of installment payments; others the availability of the Bureau of Prisons Inmate Financial Responsibility Programs; still others the collection authority of the government during the pendency of appeals. The approach of S. 973/H.R. 4110 to judicial scheduling of installment payments was much like that of H.R. 845. S. 973/H.R. 4110 would have declared, “the court shall order that the restitution imposed is due in full immediately upon imposition.”110 The statement in existing law that “the court shall . . . specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid”111 would have given way to a statement in S. 973/H.R. 4110 that, “the court may . . . direct the defendant to make . . . partial payments at specified intervals. . ..”112 —–ŠŽȱ’—Š—Œ’Š•ȱŽœ™˜—œ’‹’•’¢ȱ›˜›Š–ȱ This Bureau of Prisons program is designed to ensure that federal inmates meet their financial responsibilities and requires them to have a financial plan to meet those obligations from the money they earn from prison work assignments if nothing else.113 Under the program’s priority, 105 Proposed 18 U.S.C. 3664(s)(2), (3); 18 U.S.C. 3664(m)(1). Proposed 18 U.S.C. 3664(s)(3); 18 U.S.C. 3664(m)(2). 107 Proposed 18 U.S.C. 3664(w); 18 U.S.C. 3664(l). 108 Proposed 18 U.S.C. 3664(j)(3)(“The court may direct the defendant to take any action, including the reparation of assets or the surrender of the interest of the defendant in any asset, in order to pay restitution in accordance with this section”). 109 Proposed 18 U.S.C. 3664A. 110 Proposed 18 U.S.C. 3664(f)(2). 111 18 U.S.C. 3664(f)(2)(emphasis added). 112 Proposed 18 U.S.C. 3664(f)(6)(A)(emphasis added). 113 28 C.F.R. §545.10. 106 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŗşȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ court-ordered restitution payments rank second after special assessments.114 Failure to comply with the demands of the program can result in a loss of various benefits and privileges.115 The Justice Department’s Analysis claims that appellate decisions requiring sentencing courts to maintain control over installment payment plans “effectively prohibits the BOP from enforcing final restitution orders through its long established IFRPs.”116 Some may find this a bit of an overstatement, since some courts appear to consider the Inmate Financial Responsibility Program an appropriate mechanism for enforcing inmate restitution obligations;117 they merely read the statute to insist that the court rather than the Bureau of Prisons set the payment schedule. In any event, S. 973/H.R. 4110 would have amended section 3664 using language that appeared to permit the court to delegate scheduling to prison officials, but also allows prison authorities to trump conflicting court instructions.118 In addition, S. 973/H.R. 4110 would have amended the nominal installment payment feature in present law119 to reflect the $100 per year minimum and priority of special assessments found in the prison program.120 The Justice Department Analysis also anticipated that the change would revive what they believe has become a dormant nominal installment provision.121 114 28 C.F.R. §545.11(a)(the priority is: (1) special assessments, (2) restitution orders; (3) fines and court costs, (4) satisfaction of state or local court orders such as orders to make child support or alimony payments, and (5) other federal obligations). Upon conviction, the courts are required to impose a special assessment of $100 for each felony and lesser amounts for misdemeanors, 18 U.S.C. 3013. 115 28 C.F.R. §545.11(d). 116 “Some appeals courts have held, as a result of current subparagraph 3664(f)(2) described above, the district courts have the exclusive power to require payment. This effectively prohibits the BOP from enforcing final restitution orders through its long established IFRPs, on the theory that an IFRP trespasses upon the district court’s sole power to enforce restitution obligations,” Analysis at A-15. 117 See e.g., United States v. Wilson, 416 F.3d 1164, 1170-171 (10th Cir. 2005); United States v. Kinlock, 174 F.3d 297, 301 (2d Cir. 1999)(“We have also noted that district courts may draw upon the Inmate Financial Responsibility Program guidelines . . . in fashioning an order of restitution that specifies the amounts to be paid, so long as discretionary authority to depart from the court’s order is not vested in prison officials”). 118 Proposed 18 U.S.C. 3664(f)(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”). H.R. 845 has no explicitly comparable provision, but it conveys broad authority that may lead to the same result (H.R. 845, proposed 18 U.S.C. 3664(j)(4)(“The Attorney General may collect and apply unreported or otherwise newly available assets [e.g., pay for prison work] to the payment of restitution, without regard to any installment payment provisions”)). 119 18 U.S.C. 3664(f)(3)(B)(“A restitution order may direct the defendant to make nominal periodic payments if the court finds from facts 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”). 120 Proposed 18 U.S.C. 3664(f)(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”). 18 U.S.C. 3013 compels the court to impose a special assessment of $100 for every felony for which the defendants convicted and an assessment of lesser amounts for misdemeanors and infractions. The special assessment prior and the $25 quarterly minimum features of the Inmate Financial Responsibility Program appear in 28 C.F.R. §545.11(a)(1) and (b)(2) respectively. 121 Analysis at A-15 (“The Department understands congressional intent to be that every defendant should pay full restitution immediately or, if that is not possible, as soon as reasonably possible. Even if a defendant cannot make reasonable payments towards his restitution obligation, then Congress expects the courts to require the defendant to make at least nominal, periodic payments toward his restitution obligation. However, the current statute is unclear. (continued...) ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŘŖȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ —˜›ŒŽ–Ž—ȱŽ—’—ȱ™™ŽŠ•ȱ Under existing law, a prosecutor’s options when enforcing a restitution order include the inmate financial responsibility program, liens against the defendant’s property,122 and garnishment of the defendant’s wages or amounts in his pension plan.123 A court, however, may stay execution of a restitution order pending appeal,124 and “may issue any order reasonably necessary to ensure compliance with a restitution order” including posting of a bond, deposit with the registry of the court, an injunction, or a restraining order under Rule 38(e) of the Federal Rules of Criminal Procedure.125 The law demands more rigorous protection when the payment of a fine is stayed. There the court must order the posting of a bond or a deposit with the registry of the court or impose a restraining order, except in exceptional circumstances.126 S. 973/H.R. 4110 would have dictated that any stay pending appeal that curtails a prosecutor’s ability to enforce a restitution order in the interim must be for good cause stated on the record.127 It also seemed to narrow the court’s discretion over the protective orders that may accompany a stay. Rule 38(e) affords the court the discretion to issue any protective order the court considers reasonably necessary. S. 973/H.R. 4110 would have used the more demanding standard governing orders staying the payment of a fine pending appeal: mandatory protective measures except under (...continued) According to the statute, the court may ‘direct the defendant to make nominal payments . . . if the economic circumstances of the defendant do not allow the payment of any amount . . .’ As stated in United States v. Kemp, 938 F.Supp. 1554 (N.D.Ala. 1996), ‘If the criminal is unable to make any payment, how can he make a nominal payment?’ Because of the unclear language of the statute, courts rarely order nominal payments. This proposal will ensure that the statute implements Congressional intent”). 122 18 U.S.C. 3613(c)(“ . . . an order of restitution made pursuant to sections 2248, 2259, 2264, 2327, 3663, 3663A, or 3664 of this title, is a lien in favor of the United States on all property and rights to property of the person fined as if the liability of the person fined were a liability for a tax assessed under the Internal Revenue Code of 1986. The lien arises on the entry of judgment and continues for 20 years or until the liability is satisfied, remitted, set aside, or is terminated under subsection (b)”). 123 United States v. Novak, 476 F.3d 1041, 1044-53 (9th Cir. 2007). Section 3664(m)(1)(A) provides that, “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 (ii) by all other available and reasonable means.” Section 3613 found in subchapter B of chapter 229 makes all the provisions of that section “available to the United States for the enforcement of an order of restitution,” 18 U.S.C. 3613(f). Section 3613(a) states that, “The United States may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under federal law or state law,” and it continues that with certain limited exceptions, “a judgment imposing a fine may be enforced against all property or rights to property of the person fined.” The Federal Debt Collection Procedures Act, 28 U.S.C. ch. 176, is available to the federal government for enforcement of a civil judgment and consequently for enforcement of a restitution order. Garnishment is among the postjudgment enforcement mechanisms available under the Act, 28 U.S.C. 3205. 124 F.R.Crim.P. 38(e)(1)(“If the defendant appeals, the district court, or the court of appeals under Federal Rule of Appellate Procedure 8, may stay – on any terms considered appropriate – any sentence providing for restitution . . .”). 125 F.R.Crim.P. 38(e)(2)(“The court may issue any order reasonably necessary to ensure compliance with a restitution order . . . after disposition of an appeal, including (A) a restraining order; (B) an injunction; (C) an order requiring the defendant to deposit all or part of any monetary restitution into the district court’s registry; or (D) an order requiring the defendant to past a bond”). 126 18 U.S.C. 3572(g). 127 Proposed 18 U.S.C. 3664(f)(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”). H.R. 845 has no comparable provision. ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ Řŗȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ exceptional circumstances.128 Although S. 973/H.R. 4110 would have neither expressly repealed nor amended Rule 38(e), its amendment was rather clearly intended to supplant the Rule. In addition, S. 973/H.R. 4110 would have stated that the issuance of such mandatory protective measures should not be construed as a limitation on the authority of prosecutors to continue their restitution-related investigations and enforcement efforts.129 The Justice Department materials describe the change but do not explain it.130 To some extent the motivation is clear: secure restitution for victims as quickly as possible and prevent the loss of any assets that might be used to pay restitution. The materials do point out that in part the proposal for restitution pending appeal “parallels” the treatment of fines pending appeal under existing law.131 But the two may raise different considerations. For instance, if a defendant is vindicated on appeal, the government can be compelled to return the amount the defendant paid in fines pending appeal.132 On the other hand, the government cannot be compelled to return amounts it recovered as restitution and passed on to victims, even if the defendant is subsequently vindicated on appeal.133 There is another difference. The law permits a court to forego imposition of a fine when it might otherwise impose a hardship. Thus, a court may refrain from imposing a fine when a defendant has insufficient resources to satisfy both fine and restitution obligations.134 The Sentencing Guidelines state that the court need not impose a fine “where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine” or “imposition of a fine would unduly burden the defendant’s dependents.”135 There are no such ameliorating provisions in the law of mandatory restitution. Therefore, the denial of stay pending appeal or an asset freeze pending appeal may impose greater hardships in the restitution cases than in fine cases. The silence of the Justice Department materials may seem unfortunate in another respect. The materials do not further identify the type of “order described in subparagraph (B)”(“an order limiting the enforcement of restitution obligations”) that may not intrude upon a prosecutor’s authority to conduct investigations of the defendant’s finances, conduct discovery, record a lien, or seek any injunction.136 It obviously includes a stay pending appeal, but the wording is 128 Proposed 18 U.S.C. 3664(f)(10)(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”). 129 Proposed 18 U.S.C. 3664(f)(10)(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”). H.R. 845 has no comparable provision. 130 Letter at 2; Analysis, at A-15 to A-16. 131 Analysis, at A-15 to A-16. 132 United States v. Hayes, 385 F.3d 1226, 1229 (9th Cir. 2004). 133 Id. at 1229-230. It is unclear whether the government would hold funds acquired through the use of its expanded enforcement powers until appeals had been exhausted or risk the prospect of unseemly litigation by vindicated defendants to recover the funds from the victims to whom the government paid them. 134 18 U.S.C. 3572(b). 135 U.S.S.G. §5E1.2(a), (e). 136 Proposed 18 U.S.C. 3664(f)(10)(C)(“No order described in subparagraph (B) shall restrain the ability of the United (continued...) ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŘŘȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ sufficiently vague to be construed as a limitation on the sentencing court’s authority to curtail enforcement of its restitution order. The clause has no statutory counterpart in present law whether of restitution or fines. ›˜œŽŒž˜›œȂȱŒŒŽœœȱ˜ȱ —˜›–Š’˜—ȱ Under the Federal Rules of Criminal Procedure, the probation officer’s sentencing report may not include certain medical, confidential or informant-related material.137 The Rules also forbid disclosing matters occurring before a federal grand jury, subject to certain exceptions, some which require court approval and some of which do not.138 Various other statutes prohibit the disclosure of financial information but recognize an exception for information provided under grand jury subpoena.139 Those statutes may be thought to proscribe disclosure beyond the grand jury absent some additional grant of authority. There are no statutory provisions which specifically proscribe Bureau of Prisons officials from disclosing to prosecutors information relating to an inmate’s ability to pay restitution. S. 973/H.R. 4110 would have granted the United States Attorneys access without court approval to financial information on the defendant held by a grand jury, the Probation Office, or the Bureau of Prisons in order to enforce restitution orders.140 The Justice Department has explained that the change is necessary because some district courts insist upon court approval before allowing prosecutors to examine probation officer reports on a defendant’s financial condition.141 They do (...continued) 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”). 137 F.R.Crim.P. 32(d)(3)(“The presentence report must exclude: (A) any diagnostic opinions that, if disclosed, might seriously disrupt a program of rehabilitation; (B) any sources of information obtained upon a promise of confidentiality; or (C) any other information that, if disclosed, might result in physical or other harm to the defendant or others”). 138 F.R.Crim.P. 6(e). For example, foreign intelligence information unearthed by the grand jury may be reported to various federal authorities without prior court approval, F.R.Crim.P. 6(e)(3)(D), and the court may authorize disclosure of grand jury material for other judicial proceedings, F.R.Crim.P. 6(e)(3)(E)(i). 139 E.g., 12 U.S.C. 3401(“. . . no government authority may have access to or obtain copies of, or the information contained in the financial records of any customer form a financial institution unless the financial the financial records are reasonably described and . . . (4) such financial records are disclosed in response to a judicial subpena which meets the requirements of section 3407 of this title. . .”). 140 Proposed 18 U.S.C. 3664(f)(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”). H.R. 845 has no comparable provision. 141 “This provision is necessary because in some districts, financial information is provided only as approved by the judge who sentenced the defendant. In those districts where financial information obtained concerning the defendant is not routinely provided, efforts by prosecutors to identify all collectible criminal debt is impeded. While the court properly should restrict access to information to third parties, i.e., other litigants or private parties, the Untied States Attorney’s Office (‘USAO’) is not a third party. A statute expressly providing access, to the USAO only, to financial information concerning the defendant obtained by the Probation Office, without the need for a special court order, would expedite the response process of the federal judiciary on an issue that is directly related to its mission. Information sought under this new provision would include such times as the affidavit the defendant is required to submit to the court under 18 U.S.C. 36643(d)(3), the Probation Office’s Form 48A (Personal Financial Statement), and the defendant’s monthly reports showing employment and income. It would not include the Probation Officer’s analysis of the financial information or any of the Probation Officer’s recommendations to the court,” Analysis at A-13. ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ Řřȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ not explain why explicit authority for access to grand jury material and Bureau of Prisons records is necessary or why court approval constitutes such a substantial obstacle. ‘Ž›ȱ˜’’ŒŠ’˜—œȱ S. 973/H.R. 4110 would have amended section 3664 in other ways. It would have made it clear that victims were to receive a copy of the restitution order,142 and would have required victims to notify the court of any change in address, although it afforded victims the option of notifying the Attorney General.143 S. 973/H.R. 4110 had several provisions designed to prevent the dissipation of assets following the issuance of the original restitution order. For instance, every restitution order would have had to include an instruction that the defendant was to refrain from any action that would conceal or dissipate his assets.144 The court in ordering restitution could have directed the defendant bring crime-related property back to within the jurisdiction of the court.145 At any time, it could have entered a protective order to ensure the availability of assets for restitution purposes.146 And it could have crafted or modified a restitution order to reflect the fact that the defendant had concealed or dissipated assets.147 Present law requires a defendant to apply any windfall he receives while in prison to his restitution obligations.148 S. 973/H.R. 4110 would have adopted the requirement, but expanded it to apply whenever restitution was outstanding regardless of whether the defendant was incarcerated at the time.149 S. 973/H.R. 4110 would have provided a similar but more explicit and open ended list of factors for the court’s consideration in assessing a defendant’s ability to pay restitution150 than found in existing law.151 142 Proposed 18 U.S.C. 3664(f)(1)(C)(i)(II). H.R. 845 has no comparable provision. Proposed 18 U.S.C. 3664(f)(1)(C)(ii). The comparable provision in H.R. 845 obligates victims to notify the court of any change in their names or mailing addresses H.R. 845, proposed 18 U.S.C. 3664(r)). 144 Proposed 18 U.S.C. 3664(f)(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”). H.R. 845 has no comparable provision. 145 Proposed 18 U.S.C. 3664(f)(6)(D)(i). It is unclear why repatriation should be limited to crime-related assets. The defendant’s restitution obligations are not otherwise so limited; they reach his assets generally. The comparable provision in H.R. 845 has no such limitation (H.R. 845, proposed 18 U.S.C. 3664(j)(3)(“The court may direct the defendant to take any action, including the reparation of assets . . . in order pay restitution . . . )). 146 Proposed 18 U.S.C. 3664(f)(6)(E). H.R. 845 has no comparable provision. 147 Proposed 18 U.S.C. 3664(f)(7)(A)(vi). H.R. 845 has no comparable provision. 148 18 U.S.C. 3664(n)(“If a person obligated to provide restitution, or pay a fine, receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed”). 149 Proposed 18 U.S.C. 3664(f)(7)(B)(“Any substantial resources from any source, including inheritance, settlement, or other judgment, shall be applied to any outstanding restitution obligation”). 150 Proposed 18 U.S.C. 3664(f)(7)(A)(“In determining whether to impose or modify specific payment directions, the court may consider (i) the need to provide restitution to the victim of the crime; (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 these assets are jointly controlled; (iv) projected earnings and other income of the defendant; (v) any financial obligations of the defendant; including obligations to dependents; (vi) whether the (continued...) 143 ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŘŚȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ˜••ŽŒ’˜— Œȱǻ ǯǯȱŞŚśȱŠ—ȱǯȱşŝřȦ ǯǯȱŚŗŗŖǼȱ S. 973/H.R. 4110 and H.R. 845 would have amended the Federal Debt Collection Procedure Act,152 consistent with the Collection Act’s availability as a means of enforcing restitution orders.153 The Collection Act is primarily a means of enforcing debts owed the United States arising in a civil or administrative context. S. 973/H.R. 4110 and H.R. 845 would have amended three sections within the Debt Act to specifically refer to restitution or debts arising out of criminal cases.154 The amendment of section 3004 goes a bit further. That section now permits a debtor to have an enforcement proceeding transferred to the district in which he lives. The bills would have amended the provision in criminal cases to permit the court in which the debtor was sentenced to block the transfer.155 ›ŽŒ˜—Ÿ’Œ’˜—ȱœœŽȱ›ŽŽ£Žȱǻ ǯǯȱŞŚśȱŠ—ȱǯȱşŝřȦ ǯǯȱŚŗŗŖDZȱŽŒ’˜—ȱ řŜŜŚǼȱ H.R. 845 and S. 973/H.R. 4110 would have added virtually identical asset preservation components to the restitution procedure in the form of a new 18 U.S.C. 3664A.156 The asset preservation features of section 3664A contemplated judicial asset freeze orders and other protective measures before conviction, both before and after indictment.157 The procedure drew upon, and in part was modeled after, the protective order features of the criminal forfeiture section of the Controlled Substances Act.158 In some ways, the model may have seem a less than perfect fit. The title to forfeitable property vests in the United States when the confiscation-triggering offense is committed.159 Restitution (...continued) defendant has concealed or dissipated assets or income; and (vii) any other appropriate circumstances”). 151 18 U.S.C. 3664(f)(2)(“Upon determination of the amount of restitution owed to each victim, the court shall, pursuant to section 3572, specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of – (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”). 152 28 U.S.C. 3001-3308. 153 The Collection Act applies to restitution enforcement by virtue of 18 U.S.C. 3664(m)(1)(A), 3613(f), and 3613(a); see also, United States v. Novak, 476 F.3d 1041, 1044-53 (9th Cir. 2007); 28 U.S.C. 3002 (“As used in this chapter. . . ‘Debt’ means. . . (B) an amount that is owing to the United States on account of a . . . fine, assessment, penalty, restitution. . .”). 154 Proposed 28 U.S.C. 3004(b)(2); 3101(a)(1), (d); 3202(b). 155 Proposed 28 U.S.C. 3004(b)(2). 156 There are two differences. S. 973/H.R. 4110 authorizes restraining orders if the court finds probable cause to believe that the “defendant, if convicted, will be ordered to satisfy an order of restitution.” H.R. 845 authorizes restraining orders if the court finds probable cause to believe that “the defendant, if convicted, will be ordered to pay an approximate amount of restitution.” H.R. 845 then adds a statement that the court’s restraining-order assessment of the approximate amount of restitution owed should the defendant be convicted, does not limit is authority to order restitution in a different amount following conviction, proposed 18 U.S.C. 3664A(a)(2). 157 Proposed 18 U.S.C. 3664A(b)(1)(“In the case of a preindictment protective order entered under subsection (a)(1) . . .”); proposed 3664A(b)(2)(“In the case of a post-indictment protective order entered under subsection (a)(1) . . .”). 158 21 U.S.C. 853. 159 21 U.S.C. 853(c), 881(h). ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ Řśȱ ȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ has no comparable feature. At the time of the passage of the Controlled Substance Act, property used to facilitate the commission of a forfeiture-triggering offense could be confiscated in a civil proceeding upon a showing of probable cause.160 And so it seems no great step to say that the court may issue a property freeze order pending the outcome of a criminal trial, based on probable cause to believe that the property restrained constitutes the proceeds or instruments of a crime, when the court has authority to order the property confiscated civilly under the same probable cause standard. Restitution requires conviction of the property owner; civil forfeiture does not.161 Restitution has no civil forfeiture equivalent. The Controlled Substances Act permits the issuance of the protective order before the property owner has been charged with any offense.162 So would have H.R. 845 and S. 973/H.R. 4110.163 Again in the case of the Controlled Substance Act, it may not seem like a great step to say the court can freeze property which it could order confiscated using the same or a less demanding standard of proof; but restitution has no civil forfeiture equivalent. Furthermore, even after indictment, the Controlled Substance Act ordinarily does not permit restraint of “innocent” assets, assets not associated with the commission of the offense.164 H.R. 845 and S. 973/H.R. 4110 would have.165 On the other hand, proponents might well have pointed out that some of the differences between forfeiture and restitution argue for greater protective tools in the case of restitution. The government is the beneficiary of confiscation; the victims of crime are the beneficiaries of restitution. A victim is likely to feel the loss of restitution more sharply than the government will feel the loss of forfeitable property. 160 Property derived from or used to facilitate a violation of the Controlled Substances Act offense is subject to confiscation either in a civil proceeding conducted against the property, 21 U.S.C. 881, or in conjunction with the owner’s criminal conviction, 21 U.S.C. 853. Civil forfeiture is ordinarily conducted in a proceeding in which the property is treated as the defendant. At the time when the Controlled Substances Act was passed and until fairly recently, confiscation was generally ordered upon a showing of probable cause to believe that the property was derived from or used to commit an offense for which confiscation might be had, United States v. 3234 Washington Avenue North, 480 F.3d 841, 843 (8th Cir. 2007); United States v. One Harrington and Richardson Rifle, Model M-14, 7.62 Caliber, 378 F.3d 533, 534 (6th Cir. 2004); United States v. Collado, 348 F.3d 323, 326-27 (2d Cir. 2003). The government must now satisfy a preponderance of the evidence standard in most civil forfeiture cases, 18 U.S.C. 983(c). The innocence of the property owner is no defense and in fact is generally irrelevant unless the owner can establish that the confiscation-triggering offense was committed by someone else and without the owner’s involvement, Austin v. United States, 509 U.S. 602, 618 (1993). In most instances, Congress has created an innocent owner defense to civil forfeiture when either the owner is an after the fact good faith purchaser, or is reasonably ignorance of the fact that his property was being used in a confiscation-triggering manner, or did all that could reasonably be expected to prevent his property from being used in a confiscation-triggering manner, 18 U.S.C. 983(d). 161 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974). 162 21 U.S.C. 853(e)(1)(B). 163 Proposed 18 U.S.C. 3664A(b)(1), (a). 164 Upon conviction, however, if forfeitable property has disappeared, been dissipated, or been removed to beyond the jurisdiction of the court, the court may order the confiscation of innocent property, other assets of the defendant of comparable value (“substitute assets”), 21 U.S.C. 853(p). Nevertheless, most courts have held that protective orders freezing such substitute assets may not be issued prior to conviction, United States v. Patelidis, 335 F.3d 226, 234 (3d Cir. 2003); United States v. Gotti, 155 F.3d 144, 147-49 (2d Cir. 1998); United States v. Riley, 78 F.3d 367, 371 (8th Cir. 1996);United States v. Ripinsky, 20 F.3d 359, 363-64 (9th Cir. 1994); United States v. Floyd, 992 F.2d 498, 502 (5th Cir. 1993); contra, In re Billman, 915 F.2d 916, 921 (4th Cir. 1990). 165 Proposed 18 U.S.C. 3664A(a)(1)(A) calls for protective orders relating to property traceable to the offense charged; proposed 18 U.S.C. 3664A(a)(1)(B) calls for protective orders to preserve “any nonexempt asset” without regard to its relation to the offense. ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ ŘŜȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ As for the availability of a civil forfeiture equivalent, proponents might have noted that under existing law authorities may use a search warrant to seize the fruits of crime based on the probable cause.166 The protective orders envisioned in H.R. 845 and S. 973/H.R. 4110 would have either involved property traceable to a particular offense or could only have been issued in the interest of justice.167 They would not have been administrative commands, but court-issued protective measures replete with the prospect of a judicial hearing to contest their issuance.168 The task of assessing the relative strengths and weaknesses of proposed section 3664A would have been made more complicated by its occasional want of clarity. Notwithstanding the Justice Department’s guidance, the text was sometimes perplexing. The bills would have authorize protective orders generally169 and although they did not say so in so many words they clearly anticipate that protective measures would have been available prior to conviction, both before and after indictment.170 They would have called for protective orders in the case of traceable property and in the interest of justice: 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 one year, the court – (A) shall – (i) enter a restraining order or injunction; (ii) require the execution of a satisfactory performance bond; or (iii) taken 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. Proposed 18 U.S.C. 3664A(a)(1)(H.R. 845). The Justice Department’s Analysis of the proposal indicates that the Department believes: (1) that the paragraphs represent two distinct grants of authority, not one grant with two elements, each of which must be satisfied before the authority may be exercised; (2) that the difference between paragraph (A) and (B) is the difference between assets traceable to the crime charged (A) and those that are not (B); (3) that the measures described in (A)(i), (ii), and (iii) all apply to traceable property; (4) that the interest of justice standard applies to protective measures issued against property unrelated to the offense (B property), but not to the measures issued against traceable property (A property); and (5) that the court is obligated to issue the protective measures sought under (A) (traceable property) and, subject to an “interest of justice” determination, those under (B)(any property).171 166 F.R.Crim.P. 41(c)(“A warrant may be issued for any of the following . . .(2) contraband, fruits of crime, or other items illegally possessed. . . ”). 167 Proposed 18 U.S.C. 3664A(a). 168 Proposed 18 U.S.C. 3664A(a), (b)(1), (2). 169 Proposed 18 U.S.C. 3664A(a)(1). 170 Proposed 18 U.S.C. 3664A(b)(1)(“In the case of a preindictment protective order entered under subsection (a)(1) . . .”); proposed 3664A(b)(2)(“In the case of a post-indictment protective order entered under subsection (a)(1) . . .”). 171 “Subsection (a)(1) makes explicit, as the courts have correctly held in construing section 853(e)(1), that such orders may be entered by the court ex parte, and that entry of such orders as to traceable assets upon proper application by the Government is intended by Congress to be mandatory. . . . In addition, subsection (a) provides that the court, if it determines that it is in the interests of justice to do so, must issue any order necessary to preserve any assets that may be used to satisfy such restitution order even if those assets are not traceable to the offenses charged,” Analysis at A-18 to A-19 (emphasis added). ˜—›Žœœ’˜—Š•ȱŽœŽŠ›Œ‘ȱŽ›Ÿ’ŒŽȱ Řŝȱ ›’–’—Š•ȱŽœ’ž’˜—ȱ›˜™˜œŠ•œȱ’—ȱ‘ŽȱŗŗŖ‘ȱ˜—›Žœœȱ ȱ It does not explain the apparent duplication. Perhaps the most plausible explanation is that the two were to be available to the government at its option. There might be some logic to the argument that the traceable property clause (A) was meant to apply in pre-indictment cases and the all-property clause (B) in post-indictment cases. After all, read that way pre-indictment orders, those which might have been held to the more demanding standard, would have only reach the narrowest and least defensible of an individual’s property – that traceable to a crime. Yet the text failed to confirm such an interpretation when it referred to both pre- and postindictment measures as those taken “under subsection (a)(1)” of which both (A) and (B) were a part.172 More compelling still was the text of the traceable property clause (A) which would have authorized protective measures for property “traceable to the commission of the offense charged.”173 The traceable property clause (A) could hardly apply exclusively to pre-indictment orders since prior to indictment there is no crime charged. The hearing procedure intended in post-indictment cases seemed to present further ambiguities. It seemed fairly certain that the bills meant to establish the following procedure. Courts would be authorized to issue an ex parte protective order upon a probable cause showing that (1) the defendant had been indicted for an offense for which restitution might be ordered, (2) that the offense or offenses had resulted in qualified losses to qualified victim [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL34139. Public record. Not legal advice.