Criminal Restitution Proposals in the 110th Congress
Prepared for Members and Committees of Congress
Restitution legislation in the 110th Congress falls into three categories. Some proposals, such as
the gang crime bills, create new federal crimes or amend specific existing federal offenses and in
doing so include restitution provisions particular to those offenses, e.g., H.R. 880, H.R. 1582,
H.R. 1692, S. 456, and S. 990 (gang bills); and H.R. 871 (spousal support). Other proposals
address a particular aspect of the law such as abatement which limits restitution collection after
the defendant’s death (S. 149). Two bills – H.R. 845, the Criminal Restitution Improvement Act,
and S. 973, the Restitution for Victims of Crime Act – make substantial changes in federal
restitution law. The proposals call for 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 more closely
resembles the proposals transmitted by the Justice Department. The provisions of H.R. 845 also
appear as Title V of the Violent Crime Control Act of 2007 (H.R. 3156/S. 1860).
This report is available in an abridged form – without footnotes, citations to most authorities and th
appendices – as CRS Report RS22709, Criminal Restitution in the 110 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 Charles Doyle.
Introduc tion ..................................................................................................................................... 1
Restitution for New Crimes.............................................................................................................2
Individual Restitution Fixes............................................................................................................2
Abatement ................................................................................................................................. 2
H.R. 845 (Mandatory Restitution).............................................................................................7
S. 973 (Discretionary Restitution)...........................................................................................12
Procedural Adjustments (H.R. 845)........................................................................................13
Primacy of Judicial Installment Schedules.......................................................................13
Procedural Adjustments (S. 973).............................................................................................17
Inmate Financial Responsibility Program.........................................................................17
Enforcement Pending Appeal...........................................................................................19
Prosecutors’ Access to Information...................................................................................21
H.R. 845/S. 973: Collection Act..............................................................................................23
H.R. 845/S. 973: Section 3664A (Preconviction Asset Freeze)..............................................23
H.R. 845/S. 973 (Anti-Crime Injunction Expansion)..............................................................30
S. 973 (Fine Collection)..........................................................................................................31
Author Contact Information..........................................................................................................32
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 1
crimes. Federal courts have no inherent authority to award restitution; they may do so only 2
pursuant to statute.
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, or of product tampering. 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), 3
federal courts may make restitution a condition of probation. Under 18 U.S.C. 3583(d), they may 4
make restitution a condition of supervised release. 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 5
can ever reasonably be expected to pay. Nevertheless, there have been suggestions that in other
instances insufficient restitution has been ordered or collected because of the particularities of 6
1 BLACK’S LAW DICTIONARY, 1339 (8th ed. 2004).
2 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
6 153 Cong. Rec. S3627 (daily ed. March 22, 2007).
Restitution legislation in the 110th Congress falls into three categories. Some proposals such as
the gang crime bills create new federal crimes or amend specific existing federal offenses and in
doing so include restitution provisions particular to those offenses. Other proposals address the
consequences of abatement. Still others call for more general revisions of existing law in the area.
Existing federal law outlaws the commission of various federal crimes by street gangs.7 There
have been a number of proposals to amend or augment the existing federal offense. They include
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
permit the courts to order restitution as part of the sentence imposed for violation of their newly 8
created or newly amended offenses.
Existing federal law outlaws certain failures to pay child support and requires the court to award 9
restitution upon conviction. H.R. 871 (Representative Wexler) proposes to outlaw the failure to
pay court-ordered spousal property distribution and requires the court to award restitution upon 10
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 11
order restitution for the victims of the crimes for which he had been convicted. Mr. Lay had died
shortly after his conviction and the court felt that the doctrine of abatement recognized by the 12
Fifth Circuit compelled its action.
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
7 18 U.S.C. 521.
8 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)).
9 18 U.S.C. 228.
10 Proposed 18 U.S.C. 228A.
11 United States v. Lay, 456 F.Supp.2d 869, 870 (S.D. Tex. 2006).
12 Id. at 873-75.
(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 13
of any inconsistency, Dove v. United States, 423 U.S. 325 (1976).
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 14
the conviction and to dismiss the indictment. The circuit courts are somewhat more divided on
the question of whether a restitution order likewise abates upon the death of the defendant 15
In the twilight of the 109th Congress, the Senate passed legislation that would have barred 16
abatement of a restitution order. The bill’s sponsor, Senator Feinstein, re-introduced essentially th17
the same proposal as S. 149 in the 110 Congress. Except for restitution and civil forfeiture, S. 18
149 replicates common law abatement for sentencing purposes. The obligation to pay fines and
special assessments and apparently to honor conditions of probation or supervised release dies 19
with the defendant. S. 149 does not, however, obligate the government to return funds received 20
in payment of the defendant’s fine, special assessment or criminal forfeiture. For civil
13 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.
14 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 thth
F.2d 1482, 1486 (10 Cir. 1992); United States v. Wilcox, 783 F.2d 44, 44 (6 Cir. 1986); United States v. Oberlin, 718 thth
F.2d 894, 895 (9 Cir. 1983); United States v. Pauline, 625 F.2d 684, 685 (5 Cir. 1980); and United States v. th
Moehlenkamp, 557 F.2d 126, 128 (7 Cir. 1977). See also, United States v. Christopher, 273 F.3d 294, 297 (3d Cir. th
2001); United States v. Pogue, 19 F.3d 663, 666 (D.C. Cir. 1994); United States v. Dudley, 739 F.2d 175, 176 (4 Cir. th
1984); United States v. Littlefield, 594 F.2d 682, 683 (8 Cir. 1979).
15 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,
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
16 S. 4055, passed by unanimous consent, 152 Cong. Rec. S11840841 (daily ed. December 8, 2006).
17 Text and introductory statement at 153 Cong. Rec. S. 138-40 (daily ed. January 4, 2007).
18 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
20 Proposed 18 U.S.C. 3560(b)(2)(B)(ii). This appears to be the case under existing law, United States v. Schumann,
forfeitures,21 S. 149 eases the applicable statute of limitations and denies the application of 22
abatement doctrine to civil forfeiture cases.
For restitution, it essentially ignores the defendant’s death. More precisely, it allows for
substitution of the defendant’s representative and permits restitution-related proceedings to
continue as if the defendant were still alive. If the defendant, dies after conviction but before
being sentenced, S. 149 authorizes a sentencing hearing and restitution order, with little said 23
about exactly what procedures are to be followed. Thereafter, or if the defendant dies after
having been sentenced, the appellate process remains open to the defendant’s representative, 24
victims, and the government for restitution-related matters.
861 F.2d 1234, 1236 (11th Cir. 1988).
21 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
22 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
There is some indication that civil forfeitures may not abate under existing law, United States v. 10380 S.W. 28th Street th
(Borroto), 214 F.3d 1291, 1294 (11 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.”).
23 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 does provide 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 must or may otherwise proceed as if the
defendant were still alive.
24 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.”)
The abatement doctrine does not apply when the defendant dies after all appeals have been
exhausted, but S. 149 addresses the question. It allows for the issuance or continuation of any 25
protective orders designed to prevent dissipation of assets that might be used to pay restitution.
Even more interestingly, it seems to establish 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 26
that property is included in the estate of the defendant.
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.
The Constitution denies Congress the power to punish treason with corruption of the blood or 27
forfeiture of estate. Story lays out the background and reasons for the prohibition in his
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
25 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.”).
26 Proposed 18 U.S.C. 3560(d)(2)(D)(i)(emphasis added).
27 “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.
crimes.28 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 29
S. 149 has one other interesting feature. Its amendments are 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 are still pending then. The ex post facto clause of the 30
Constitution generally forbids the retroactive application of criminal laws. The lower federal
appellate courts are divided over the question of whether the Constitution’s ex post facto clause 31
permits retroactive application of restitution amendments.
Two bills – H.R. 845, the Criminal Restitution Improvement Act, introduced by Representative
Chabot, and S. 973, the Restitution for Victims of Crime Act, introduced by Senator Dorgan – 32
make substantial changes in federal restitution law. The bills reflect a Justice Department th
legislative proposal transmitted in the second session of the 109 Congress in identical letters to
then House Speaker Hastert and to the President of the Senate, Vice President Cheney, which 33
included a draft bill and accompanying section-by-section analysis. The proposals call for three
28 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
29 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).
30 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.) st
386, 390-91 (1798)(Ex post facto clauses prohibit “1. 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 th
punishment, than the law annexed to the crime, when committed. 4. 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”).
31 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. th
Siegel, 153 F.3d 1256, 1260 (11 Cir. 1998); United States v. Bapack, 129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997); th
United States v. Williams, 128 F.3d 1239, 1241 (8 Cir. 1997); United States v. Thompson, 113 F.3d 13, 15, n.1 (2d th
Cir. 1997); United States v. Rico Industries, Inc., 854 F.2d 710, 714 (5 Cir. 1988); contra, United States v. Baldwin, thth
414 F.3d 791, 800 (7 Cir. 2005); United States v. Nichols, 169 F.3d 1255, 1279-280 (10 Cir. 1999).
32 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)).
33 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 June 27, 2007 at
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 more closely resembles the proposals transmitted by the Justice
H.R. 845 increases the number of crimes for which mandatory restitution is authorized; S. 973 the
number for which discretionary restitution is authorized. They use 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 recasts
H.R. 845 replaces the discretionary and mandatory restitution provisions of sections 3663 and
3663A with mandatory provisions under a revised Section 3663. In doing so, it changes the class
of victims for whom restitution must be ordered; it changes the crimes for which restitution must
be ordered; and it changes the types of injuries and losses for which restitution must be ordered.
Existing law requires restitution for crimes of violence, maintaining a drug-involved premises, 34
and, when prohibited in Title 18, fraud and crimes against property. It permits a court to order
restitution for crimes otherwise proscribed in Title 18, as well as various aviation safety and drug 35
offenses, and as a condition for probation and supervised release. 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 requires 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 36
from physical injury to, or the death of, another, proximately resulting from the offense.” 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 does not further
define the “offenses” that require mandatory restitution. It almost certainly is 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 is also intended to embrace tribal, military,
and/or territorial offenses and/or relevant conduct related to any qualifying offenses seems 37
conceivable but not very likely.
34 18 U.S.C. 3663A.
35 18 U.S.C. 3663, 3563(b), 3583(d).
36 Proposed 18 U.S.C. 3663(a).
37 In the setting arguably most comparable, the federal law governing bail defines “offense” as “any criminal offense,
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
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 38
H.R. 845 describes somewhat differently the five classes of victims who are entitled to mandatory
- Identifiable individuals and entities who suffer a pecuniary loss proximately caused by the 39
- Identifiable individuals and entities who suffer a pecuniary loss as a consequence of a 40
physical injury to another proximately caused by the offense,
- The successors to any such direct or third party victims,41
- Anyone the parties agree to in a plea bargain,42 and
- Anyone otherwise provided by law.43
Like existing law, H.R. 845 permits restitution for a wider range of victims pursuant to a plea 44
bargain. Furthermore, H.R. 845 insists upon restitution for those who suffer losses as a
proximate cause of a qualifying offense, even though it envisions a wider range of qualifying
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 court-martial,
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.
38 18 U.S.C. 3663A(a)(3), (1), (2).
39 Proposed 18 U.S.C. 3663(a), (b)(2)(A).
42 Proposed 18 U.S.C. 3663(b)(2)(B).
44 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”).
offenses than recognized under existing law.45 Third, in somewhat varied terms, H.R. 845 admits
to the possibility that, faced with a host of victims or an exceedingly complex factual 46
environment, full restitution for all victims need not be required.
Perhaps the most obvious difference produced by H.R. 845’s description of the victims entitled to
restitution is its silence on the extent to which victims of misconduct collateral to the crime of
conviction may be 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 47
“involves as an element a scheme, conspiracy, or pattern of criminal activity.” Under this
provision, victims of the same scheme but of a different episode of the scheme than that for which 48
the defendant was convicted may be entitled to restitution. There is no comparable language in
The second major difference flows 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 49
law treats a victim’s estate as the victim if the victim is dead. If the victim is a child,
incompetent, or incapacitated, existing law allows the victim’s legal guardian, a member of the
45 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 ...”).
46 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
18 U.S.C. 3663A(c)(3)(“This section shall not apply in the case of an offense described in paragraph (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”).
47 18 U.S.C. 3663A(a)(2).
48 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. th
Restitution for the whole scheme is in order”); United States v. Dickerson, 370 F.3d 1330, 1342 (11 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 th
of limitations.”); see also, United States v. Osborne, 332 F.3d 1307, 1314 (10 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 th
defendant when the district court orders restitution”); United States v. Bright, 353 F.3d 1114, 1120 (9 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 th
this scheme”); but see, United States v. Polichemi, 219 F.3d 698, 714 (7 Cir. 2000)(defendant convicted of fraud may
nevertheless not be ordered to pay restitution to victims harmed by conduct for which he was acquitted).
49 18 U.S.C. 3663A(a)(1).
victim’s family, or a court appointed representative to assume the victim’s interest.50 Existing law
also realizes that parents, insurance carriers, and other third parties who assume or provide 51
compensation for the victim’s losses, may be entitled to restitution.
H.R. 845 replicates the provision of existing law covering insurance carriers and similarly 52
situated third parties and when restitution takes the form of in-kind services, but otherwise
speaks simply of successors and those who suffer losses as a result of physical injuries to another 53
proximately caused by defendant’s crime. H.R. 845 makes no express mention of the victim’s
estate or representative or of the assumption of the victim’s rights.
Some courts may feel that the change is intended to mean that the right of victims to restitution 54
dies with them, although their parents and estates may be entitled to restitution for related costs 55
which they incur. On the other hand, it may be that the bill contemplates that the estate and heirs
of a deceased victim will be considered the victim’s “successors,” and therefore entitled to 56
restitution in the victim’s stead. Conversely, at least in the case of human victims, the
classification of successors as victims may be intended to signal no more than the fact that 57
victims may assign their right to restitution, if only during their lifetime.
H.R. 845 does classify as victims those who are otherwise provided for by law.58 It repeals some,
but not all, of the existing individual restitution statutes that provide alternative coverage. Gone
are the individual restitution statutes governing human trafficking, sexual abuse, sexual 59
exploitation of children, domestic violence, and telemarketing fraud. Continuing on are the 60
probation, supervised release, or animal enterprise restitution provisions. Victims as defined in
50 18 U.S.C. 3663A(a)(2).
51 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”).
52 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
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
53 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”).
54 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).
55 “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).
56 “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).
57 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).
58 Proposed 18 U.S.C. 3663(b)(2)(B).
59 H.R. 845, sec. 5(a)(1), proposing repeal of 18 U.S.C. 1593, 2248, 2259, 2264, and 2327.
60 18 U.S.C. 3563(b), 3583(d), 43(c).
the survivors statutes, and other similarly situated statutes are presumably what is meant H.R. 845
speaks of victims as otherwise provided by law.
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 61
H.R. 845 essentially merges the two, eliminating the distinction and expanding coverage. It calls
for restitution regardless of the nature of the crime – fraud, property damage, or physical injury 62
offenses. Its vindication expenses clause runs parallel to existing law, but makes specific 63
allowance to cover the costs of attorneys other than those employed by the government. It
carries 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 64
related services.” And it uses 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 65
recognizes no such distinction.
As noted earlier, H.R. 845 expressly repeals the individual restitution provisions now found in 18
U.S.C. 1593 (human trafficking), 2248 (sexual abuse), 2259 (sexual exploitation of children), 66
2264 (domestic violence), and 2327 (telemarketing fraud). Since it extends mandatory
restitution to all federal offenses, the most obvious implication of the amendment is the 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 67
expenses, as well as attorney fees, generally. H.R. 845 only covers them when they are
“incurred during participation in the investigation and prosecution of the offense or attendance at 68
proceedings relating to the offense.” The trafficking section also has an income loss calculation
61 18 U.S.C. 3663A(b)(1), (2).
62 Proposed 18 U.S.C. 3663(c)(2), (3), (4).
63 “... 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).
64 Proposed 18 U.S.C. 3663(c)(b); 18 U.S.C. 3663A(b)(3).
65 “[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.
66 H.R. 845, §5(1).
67 18 U.S.C. 1593(b)(3), 2248(b)(3), 2259(b)(3), 2264(b)(3).
68 Proposed 18 U.S.C. 3663(c)(5).
unknown to the bill.69 H.R. 845 leaves 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 merges sections 3663 and 3663A into a revised Section 3663 it repeals 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.
With the merger, H.R. 845 presumably intends to bring individual restitution laws such as 18
U.S.C. 228(d) (failure to pay child support) which continue to cross reference Section 3663A 70
within the coverage of the new Section 3663. 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 provides 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 be seen as a harmless scrivener’s error.
S. 973’s expansion of authority to order restitution is 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 71
Title 18 of the United States Code and for various drug and aviation safety statutes. S. 973
amends 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
69 “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.).”
70 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.”).
71 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.
awarded the victims of various environmental felonies as a condition of probation or supervised 72
release. 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 73
from the list of qualified offenses cannot easily be applied to the environmental offenses.
S. 973 amends 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, 74
incurred in an effort to retrieve their damaged, lost, or stolen property.
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 75
and defendant, and prepares a report for the court which is shared with the parties. 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 76
specifics of the defendant’s ability to pay. Court-issued restitution orders may direct the 77
defendant to pay in a lump sum, in installments, in-kind or in some combination of the three.
Until full restitution is made, the court may modify its order to reflect any change in the 78
defendant’s financial circumstances.
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
72 Analysis, at 21.
73 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.
74 Proposed 18 U.S.C. 3663(b)(1)(B), (4), (6); proposed 18 U.S.C. 3663A(b)(1)(B), (4), (5).
75 18 U.S.C. 3664(a), (b), (d).
76 18 U.S.C. 3664(e).
77 18 U.S.C. 3664(f).
78 18 U.S.C. 3664(k).
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
transfers the district court’s responsibility for setting a restitution schedule to the probation office 79
[or to prison authorities], which is inconsistent with the statute.”
Both H.R. 845 and S. 973 amend Section 3664 to meet the Justice Department’s objections. 80
Section 3664(f) now states that “the court shall order restitution to each victim in full....” And
“the court shall, pursuant to Section 3572, specify in the restitution order the manner in which, 81
the schedule according to which, the restitution is to be paid....” Under H.R. 845, this language
disappears and is 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 82
payable immediately.” Furthermore “The court may provide for payment in installments 83
according to a schedule....” And “The Attorney General may collect and apply unreported or
otherwise newly available assets to the payment of restitution, without regard to any installment 84
All of which appears to mean that H.R. 845’s amendments are intended to permit the court to
establish a payment schedule, but to allow the government to formulate one if the court does not.
Moreover, the fact that the court has established a payment schedule does not prevent the
government from supplementing the effort with other collection measures taken without the need
to seek the sentencing court’s approval.
H.R. 845 amends Section 3664 in a number of other ways, some of which appear in the earlier 85
recommendations of the Justice Department and some of which do not. Present law gives the
prosecutor 60 days prior to the date set for sentencing to supply the probation officer with a list of
79 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 th
inconsistent with the statute”); see also, United States v. Ahidley, 486 F.3d 1184, 1191-193 (10 Cir. 2007); United thth
States v. Gunning, 401 F.3d 1145, 1149-150 (9 Cir. 2005); United States v. Davis, 306 F.3d 398, 425-26 (6 Cir. th
2002); United States v. Prouty, 303 F.3d 1249, 1253-254 (11 Cir. 2002); United States v. McGlothlin, 249 F.3d 783, th
784-85 (8 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).
80 18 U.S.C. 3664(f)(1)(A).
81 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 amends Section 3572 and eliminates its
application to restitution; H.R. 845 does not.
82 Proposed 18 U.S.C. 3664(j)(1)(emphasis added).
83 Proposed 18 U.S.C. 3664(j)(2)(emphasis added).
84 Proposed 18 U.S.C. 3664(j)(4)(emphasis added).
85 S. 973’s amendments to Section 3664 track the Justice Department proposed bill much more closely.
the victims of the crime of conviction and the amounts of their losses.86 H.R. 845 relaxes the 87
provision striking the time deadline. Unlike existing law, it insists that the report be shared with 88
victims upon their request.
H.R. 845 drops the statement now found in Section 3664(c) that identifies the external provisions 89
of law that govern the proceedings. 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 90
the defendant’s attorney notice and a reasonable opportunity to attend the interview.” 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 neither repeals nor amends the
Rule, and on its face it requires an invitation whether the presentence investigation interview is
related to restitution or some other sentencing issue.
Under existing law, the court may consider a defendant’s financial circumstances when deciding 91
how and when restitution must be paid. It may not consider them when deciding whether and in 92
what amounts its must be paid. Perhaps to avoid confusion, H.R. 845 strikes the language in
Section 3664 that now instructs the court to ignore the defendant’s ability to pay when crafting 93
the restitution order. The general tenor of the bill, however, belies any intent to allow a court to
reduce the amount of restitution it might otherwise award based on the defendant’s economic
As with existing law, the timing and scheduling of the defendant’s restitution payments under the 94
order must be based on the defendant’s obligations and resources (present and anticipated). The
86 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”).
87 “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 has no comparable provision.
88 Proposed 18 U.S.C. 3664(b). S. 973 has no comparable provision.
89 “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 leaves Section 3664(c) untouched.
90 F.R.Crim.P. 32(c)(2).
91 18 U.S.C. 3664(f)(2).
92 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
93 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.”)
94 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.
court may still make multiple defendants jointly and severally liable for restitution, although H.R. 95
of multiple victims, H.R. 845 uses a compressed style to the same effect as existing law. It uses
the same approach when providing for restitution for insurance carriers and similarly situated 97
Defendants continue to have the opportunity and obligation to notify the court and the 98
government of any change in their financial situation. H.R. 845 adds a further requirement that 99
victims notify the court if they change their name or mailing address. It also amends 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 100
condition that remains in effect.
95 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 has no comparable provision.
“[B]eing jointly and severally liable means that each individual remains responsible for payment of the entire liability, th
so long as any part is unpaid,” United States v. Scop, 940 F.2d 1004, 1010 (7 Cir. 1991), citing, RESTATEMENT
(SECOND) OF TORTS §875 (1979).
96 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.”)
97 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.”).
98 Proposed 18 U.S.C. 3664(q); 18 U.S.C. 3664(k).
99 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 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, proposed 18 U.S.C. 3664(f)(1)(C)(ii).
100 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
H.R. 845 accepts without change most of the existing mechanisms for enforcing restitution
orders. This includes liens on the defendant’s property that can be enforced either by the 101
government or the victim, the authority of probation officers to enforce in-kind restitution 102
orders, and the estoppel provision that precludes the defendant from challenging any of the 103
underlying facts of the crime of conviction in related civil litigation. In addition, H.R. 845
empowers the court to order the defendant to take action to facilitate restitution including the 104
reparation of assets located overseas. In a later section, it creates 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 105
assets for restitution purposes.
Like H.R. 845, more than a few of S. 973’s amendments have been crafted to provide alternatives
to direct involvement of the court in restitution enforcement. Some address 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 to judicial scheduling of installment payments is much like that of H.R.
upon imposition.” 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 107
paid” gives way to a statement in S. 973 that, “the court may ... direct the defendant to make ... 108
partial payments at specified intervals....”
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
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 makes comparable adjustments in federal probation law, proposed 18 U.S.C. 3564(f). S. 973 has
no comparable provisions.
101 Proposed 18 U.S.C. 3664(s)(2), (3); 18 U.S.C. 3664(m)(1).
102 Proposed 18 U.S.C. 3664(s)(3); 18 U.S.C. 3664(m)(2).
103 Proposed 18 U.S.C. 3664(w); 18 U.S.C. 3664(l).
104 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
105 Proposed 18 U.S.C. 3664A.
106 Proposed 18 U.S.C. 3664(f)(2).
107 18 U.S.C. 3664(f)(2)(emphasis added).
108 Proposed 18 U.S.C. 3664(f)(6)(A)(emphasis added).
money they earn from prison work assignments if nothing else.109 Under the program’s priority, 110
court-ordered restitution payments rank second after special assessments. Failure to comply 111
with the demands of the program can result in a loss of various benefits and privileges.
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 112
final restitution orders through its long established IFRPs.” Some may find this a bit of an
overstatement, since some courts appear to consider the Inmate Financial Responsibility Program 113
an appropriate mechanism for enforcing inmate restitution obligations; 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 amends Section 3664 using language that appears to permit the court to
delegate scheduling to prison officials, but also allows prison authorities to trump conflicting 114
court instructions. In addition, S. 973 amends the nominal installment payment feature in 115
present law to reflect the $100 per year minimum and priority of special assessments found in 116
the prison program. The Justice Department Analysis also anticipated that the change would 117
revive what they believe has become a dormant nominal installment provision.
109 28 C.F.R. §545.10.
110 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.
111 28 C.F.R. §545.11(d).
112 “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.
113 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.”).
114 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.”)).
115 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.”).
116 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.
117 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
Under existing law, a prosecutor’s options when enforcing a restitution order include the inmate 118
financial responsibility program, liens against the defendant’s property, and garnishment of the 119
defendant’s wages or amounts in his pension plan. A court, however, may stay execution of a 120
restitution order pending appeal, 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 121
Procedure. 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 122
impose a restraining order, except in exceptional circumstances.
S. 973 dictates that any stay pending appeal that curtails a prosecutor’s ability to enforce a 123
restitution order in the interim must be for good cause stated on the record. It also seems 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 uses the more demanding standard governing orders staying the payment of a
make at least nominal, periodic payments toward his restitution obligation. However, the current statute is unclear.
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.”).
118 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)”).
119 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
120 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 ...”).
121 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.”).
122 18 U.S.C. 3572(g).
123 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.
fine pending appeal: mandatory protective measures except under exceptional circumstances.124
Although S. 973 neither expressly repeals nor amends Rule 38(e), its amendment is rather clearly
intended to supplant the Rule. In addition, S. 973 states that the issuance of such mandatory
protective measures should not be construed as a limitation on the authority of prosecutors to 125
continue their restitution-related investigations and enforcement efforts.
The Justice Department materials describe the change but do not explain it.126 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 127
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 128
pending appeal. 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 129
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 130
has insufficient resources to satisfy both fine and restitution obligations. 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 131
unduly burden the defendant’s dependents.” 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, 132
or seek any injunction. It obviously includes a stay pending appeal, but the wording is
124 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”).
125 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.
126 Letter at 2; Analysis, at A-15 to A-16.
127 Analysis, at A-15 to A-16.
128 United States v. Hayes, 385 F.3d 1226, 1229 (9th Cir. 2004).
129 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.
130 18 U.S.C. 3572(b).
131 U.S.S.G. §5E1.2(a), (e).
132 Proposed 18 U.S.C. 3664(f)(10)(C)(“No order described in subparagraph (B) shall restrain the ability of the United
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.
Under the Federal Rules of Criminal Procedure, the probation officer’s sentencing report may not 133
include certain medical, confidential or informant-related material. The Rules also forbid
disclosing matters occurring before a federal grand jury, subject to certain exceptions, some 134
which require court approval and some of which do not. Various other statutes prohibit the
disclosure of financial information but recognize an exception for information provided under 135
grand jury subpoena. 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 grants 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 136
enforce restitution orders. The Justice Department has explained that the change is necessary
because some district courts insist upon court approval before allowing prosecutors to examine 137
probation officer reports on a defendant’s financial condition. They do not explain why explicit
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”).
133 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
134 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).
135 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...”).
136 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.
137 “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.
authority for access to grand jury material and Bureau of Prisons records is necessary or why
court approval constitutes such a substantial obstacle.
S. 973 amends Section 3664 in other ways. It makes it clear that victims are to receive a copy of 138
the restitution order, and requires victims to notify the court of any change in address, although 139
it affords victims the option of notifying the Attorney General.
S. 973 has several provisions designed to prevent the dissipation of assets following the issuance
of the original restitution order. For instance, every restitution order must include an instruction 140
that the defendant is to refrain from any action that would conceal or dissipate his assets. The
court in ordering restitution may direct the defendant bring crime-related property back to within 141
the jurisdiction of the court. It may at any time enter a protective order to ensure the 142
availability of assets for restitution purposes. And it may craft or modify a restitution order to 143
reflect the fact that the defendant has concealed or dissipated assets.
Present law requires a defendant to apply any windfall he receives while in prison to his 144
restitution obligations. S. 973 adopts the requirement, but expands it to apply whenever 145
restitution is outstanding regardless of whether the defendant is incarcerated at the time. S. 973
provides a similar but more explicit and open ended list of factors for the court’s consideration in 146147
assessing a defendant’s ability to pay restitution than found in existing law.
138 Proposed 18 U.S.C. 3664(f)(1)(C)(i)(II). H.R. 845 has no comparable provision.
139 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)).
140 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.
141 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 ...)).
142 Proposed 18 U.S.C. 3664(f)(6)(E). H.R. 845 has no comparable provision.
143 Proposed 18 U.S.C. 3664(f)(7)(A)(vi). H.R. 845 has no comparable provision.
144 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”).
145 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”).
146 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
defendant has concealed or dissipated assets or income; and (vii) any other appropriate circumstances”).
147 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
S. 973 and H.R. 845 amend the Federal Debt Collection Procedure Act,148 consistent with the 149
Collection Act’s availability as a means of enforcing restitution orders. The Collection Act is
primarily a means of enforcing debts owed the United States arising in a civil or administrative
context. S. 973 and H.R. 845 amend three sections within the act to specifically refer to restitution 150
or debts arising out of criminal cases. 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 amend the provision in criminal cases to permit the court in which the 151
debtor was sentenced to block the transfer.
H.R. 845 and S. 973 add virtually identical asset preservation components to the restitution 152
procedure in the form of a new 18 U.S.C. 3664A. The asset preservation features of Section
both before and after indictment. The procedure draws upon, and in part is modeled after, the 154
protective order features of the criminal forfeiture section of the Controlled Substances Act.
In some ways, the model may seem a less than perfect fit. The title to forfeitable property vests in 155
the United States when the confiscation-triggering offense is committed. Restitution 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 156
proceeding upon a showing of probable cause. And so it seems no great step to say that 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”).
148 28 U.S.C. 3001-3308.
149 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,
150 Proposed 28 U.S.C. 3004(b)(2); 3101(a)(1), (d); 3202(b).
151 Proposed 28 U.S.C. 3004(b)(2).
152 There are two differences. S. 973 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).
153 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) ...”).
154 21 U.S.C. 853.
155 21 U.S.C. 853(c), 881(h).
156 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
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 157
does not. Restitution has no civil forfeiture equivalent.
The Controlled Substances Act permits the issuance of the protective order before the property 158159
owner has been charged with any offense. So do H.R. 845 and S. 973. 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 160161
associated with the commission of the offense. H.R. 845 and S. 973 do.
On the other hand, proponents might well point 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.
As for the availability of a civil forfeiture equivalent, proponents might note that under existing
law authorities may use a search warrant to seize the fruits of crime based on the probable 162
cause. The protective orders envisioned in H.R. 845 and S. 973 either involved property
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 th
North, 480 F.3d 841, 843 (8 Cir. 2007); United States v. One Harrington and Richardson Rifle, Model M-14, 7.62 th
Caliber, 378 F.3d 533, 534 (6 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).
157 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 683 (1974).
158 21 U.S.C. 853(e)(1)(B).
159 Proposed 18 U.S.C. 3664A(b)(1), (a).
160 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 th
Cir. 2003); United States v. Gotti, 155 F.3d 144, 147-49 (2d Cir. 1998); United States v. Riley, 78 F.3d 367, 371 (8 thth
Cir. 1996);United States v. Ripinsky, 20 F.3d 359, 363-64 (9 Cir. 1994); United States v. Floyd, 992 F.2d 498, 502 (5 th
Cir. 1993); contra, In re Billman, 915 F.2d 916, 921 (4 Cir. 1990).
161 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.
162 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... ”).
traceable to a particular offense or can only be issued in the interest of justice.163 They are not
administrative commands, but are court-issued protective measures and come with the prospect of 164
a judicial hearing to contest their issuance.
The task of assessing the relative strengths and weaknesses of proposed Section 3664A is made
more complicated by its occasional want of clarity. Notwithstanding the Justice Department’s 165
guidance, the text is sometimes perplexing. The bills authorize protective orders generally and
although they do not say so in so many words they clearly anticipate that protective measures will 166
be available prior to conviction, both before and after indictment. They call 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 167
It does not explain the apparent duplication. Perhaps the most plausible explanation is that the
two are available to the government at its option. There might be some logic to the argument that
the traceable property clause (A) is 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 to held the more demanding standard, would only reach the narrowest and least defensible
of an individual’s property – that traceable to a crime.
163 Proposed 18 U.S.C. 3664A(a).
164 Proposed 18 U.S.C. 3664A(a), (b)(1), (2).
165 Proposed 18 U.S.C. 3664A(a)(1).
166 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) ...”).
167 “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).
Yet the text fails to confirm such an interpretation when it refers to both pre- and post-indictment 168
measures as those taken “under subsection (a)(1)” of which both (A) and (B) are a part. More
compelling still is the text of the traceable property clause (A) which authorizes protective 169
measures for property “traceable to the commission of the offense charged.” The traceable
property clause (A) can hardly apply exclusively to pre-indictment orders since prior to
indictment there is no crime charged.
The hearing procedure intended in post-indictment cases seems to present further ambiguities. It
seems fairly certain that the bills mean 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 victims of an approximate amount
for which the defendant would be obligated to make restitution if convicted of the offense or
offenses charged, (3) the value of the property to be restrained or the amount of the bond to be
posted did not greatly exceed the approximate amount of restitution that might be awarded, and
(4) (perhaps) the property is traceable to the offense charged.
A defendant would be entitled to a hearing upon a prima facie showing that the value of property
restrained or the amount of the bond greatly exceeded the amount of the restitution that could be
ordered; or that the law does not authorize restitution for the offense, victim, or losses claimed in
the order; or (if the court relies on the traceable property prong of proposed Section
3664A(a)(1)(A)) that the property restrained is not traceable to the offense charged. Even then, a
hearing could be granted only if the defendant could also show by a preponderance of the
evidence that the order had or would deprive him of defense counsel of his choice or deprive the
defendant or his family of the necessities of life. If the defendant is able to meet this burden – or
whatever reduced burden due process demands – he is entitled to a hearing at which the
government may contest his challenge. After which, the court may modify its protective order
should it find either (1) a want of probable cause to believe that the restrained property or at least
all of it would be needed to satisfy any restitution order under the facts of the case; or (2) (if the
“traceable property” authority was relied upon) a want of probable cause to believe that the
restrained property or some of it is traceable to the offense charged, or (perhaps or at least to the
extent due process requires); (3) that a failure to modify the order would deny the defendant
defense counsel of his choice or would impose an undue hardship upon the defendant or his
The above description seems likely what S. 973 and H.R. 845 intend; it is not literally what they
state. First, S. 973 states that the court shall issue a protective order upon “a finding of probable
cause to believe that a defendant, if convicted, will be ordered to satisfy an order of 170
restitution....” It says nothing about the size of the anticipated restitution order nor about the
relationship between the value of the restitution that might be owed to the value of the property to
be restrained. H.R. 845 suggests this may have been an oversight, for the only change it makes in
S. 973’s treatment is to state that a court shall issue a protective order upon “a finding of probable
cause to believe that a defendant, if convicted, will be ordered to pay an approximate amount of 171
restitution....” H.R. 845 says nothing about a necessary relationship between this “approximate
168 Proposed 18 U.S.C. 3664A(b)(1), (2).
169 Proposed 18 U.S.C. 3664A(a)(1)(A)(iii).
170 S. 973, proposed 18 U.S.C. 3664A(a)(1).
171 H.R. 845, proposed 18 U.S.C. 3664A(a)(1).
amount” and the value of the property restrained, but otherwise there seems little reason to make
the change. Both bills note that once their probable cause standards have been met a protective
order covering traceable property may be issued; neither bill indicates what level of certainty is
required for a finding that a particular piece of property is traceable to an offense charged.
Second, both bills state that the defendant is entitled to a hearing in which to seek a modification
of the ex parte order only if he shows by a preponderance of the evidence that he has or will
suffer hardship or lost defense counsel and if he “makes a prima facie showing that there is a
bona fide reason to believe that the court’s ex parte finding of probable cause under subsection 172
(a)(1) was in error.” The text of S. 973 on its face limits the probable cause threshold to a
showing that the court erroneously concluded that if convicted the defendant could be ordered to
pay restitution. The defendant can literally overcome this obstacle only if he can show that
restitution cannot lawfully be ordered because the offense is not one for which restitution may be
ordered or because the case lacks either victims eligible for restitution or losses for which
restitution may be awarded. If this were all that was intended there would be no reason to add the
additional hardship threshold that S. 973 imposes.
The same is true of H.R. 845. Moreover, in the case of H.R. 845 the defendant must show that the
court erroneously concluded that probable cause existed to believe that “the defendant, if 173
convicted, will be ordered to pay an approximate amount of restitution.” There is no reason to
insist on showing of an approximate amount of the possible restitution unless that determination
somehow relates to the value of the property restrained if only very roughly.
Exactly how much more is intended or must be intended is complicated by the unresolved
question of what due process requires. In the forfeiture context and as a matter of statutory
construction, the Supreme Court indicated that the courts have no choice but to issue a protective
order upon receipt of an ex parte government application following indictment even where the 174
defendant seeks to use the assets to pay for legal representation. The Court expressly left open
the constitutional issue of when and what sort of hearing may be required as a matter of due 175
process. The issue divides the lower federal appellate courts. Some hold that a post-indictment
ex parte restraining order is only good for ten days with the possibility of only one ten day 176
extension before a probable cause hearing must be held. Others find that “although pre-trial
172 Proposed 18 U.S.C. 3664A(b)(2)(B).
173 Proposed 18 U.S.C. 3664A((b)(2)(B), (a)(1).
174 “We note that the ‘equitable discretion’ that is given to the judge under §853(e)(1)(A) turns out to be no discretion
at all as far as the issue before us is concerned: Judge Winter concludes that assets necessary to pay attorneys’ fees
must be excluded from the restraining order. For that purpose, the word ‘may’ becomes ‘may not.’ The discretion
found in §853(e) becomes a command to use that subsection (and §853(c)) to frustrate the attainment of §853(a)’s ends.
This construction is improvident. Whatever discretion Congress gave the district courts in §§853(e) and 853(c), that
discretion must be cabined by the purposes for which Congress created it: ‘to preserve the availability of property ... for
forfeiture.’ We cannot believe that Congress intended to permit the effectiveness of the powerful ‘relation-back’
provision of §853(c), and the comprehensive ‘any property ... any proceeds’ language of §853(a), to be nullified by any
other construction of the statute,” United States v. Monsanto, 491 U.S. 600, 613 (1989)(post-indictment restraining
175 “We do not consider today, however, whether the Due Process Clause requires a hearing before a pretrial restraining
order can be imposed.” Id. at 615.
176 United States v. Roth, 912 F.2d 1131, 1132-133 (9th Cir. 1990). Again, the question is made more difficult by virtue
of the fact that in a forfeiture context . Beproperty that may restrained on a showing of probable cause could also be
confiscated to the government on a showing of probable cause, i.e., without a conviction. The property subject to
restraint under the bills cannot be made subject to a restitution order upon a showing of probable cause; a conviction is
restraint of assets needed to retain counsel implicates the due process clause, the trial itself 177
satisfies this requirement.” The majority are somewhere in between, but are particularly 178
swayed when it appears that the order may reach funds needed to pay defense counsel.
Third, once a hearing has been granted, the bills state that an order may be modified if “more 179
property has been seized and restrained that may be needed to satisfy a restitution order....”
They also permit modification if the court “finds under subparagraph (A) that no probable cause 180
exists as to some or all of the property.” A subparagraph (A) hearing is conducted to “determine
whether there is probable cause to believe that the defendant, if convicted, will be ordered to
satisfy an order of restitution ... and that the seized or restrained property may be needed to 181
satisfy such restitution order.” The italicized language suggests that some comparative analysis
of the relative value of the assets frozen and restitution to be owed was necessary from the
beginning when the court entered its ex parte order. Moreover, although neither bill makes any
mention of it, either the text or due process will be construed to bar restraint of innocent assets
(those not traceable to the offense charged) if needed to provide the necessities of life and perhaps
if needed to retain counsel.
As for pre-indictment protective orders, the bills declare that applications and orders are to be 182
governed by 21 U.S.C. 853(e) and proposed Section 3664A. This should probably be
understood to say that proposed Section 3664A governs in cases of conflict with Section 853(e).
Prior to indictment, Section 853(e) requires that the property owner be given notice and an 183
opportunity for a hearing, unless the government establishes by probable cause that the 184
property will become unavailable if prior notice is given. The bills seem to make the initial
177 United States v. Register, 182 F.3d 820, 835 (11th Cir. 1999).
178 United States v. Holy Land Foundation, ____ F.3d _____, _____ (5th Cir. 2007)(en banc) (“[W]hen the government
is seeking forfeiture and secures an indictment to that effect based on probable cause, a court may issue a restraining
order without prior notice or a hearing. In some cases, however, due process will require that the district court then
promptly hold a hearing at which the property owner can contest the restraining order, without waiting until trial to do
so.” To determine when such a hearing is required, we consider the three Eldridge factors: the private interests that will
be affected by the restraint; the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally the government’s interest,
including the burdens that the hearing would entail... [C]ircuits employing this test have found that a property owner’s
interest is particularly great when he or she needs the restrained assets to pay for legal defense on associated criminal th
charges, or to cover ordinary and reasonable living expenses”); United States v. Farmer, 274 F.3d 800, 803-804 (4 th
Cir. 2001); United States v. Jones, 160 F.3d 641, 645-47 (10 Cir. 1998); United States v. Monsanto, 924 F.2d 1186,
1203 (2d Cir. 1991)(en banc).
179 Proposed 18 U.S.C. 3664A(b)(3).
180 Proposed 18 U.S.C. 3664A(b)(3)(C).
181 Proposed 18 U.S.C. 3664A(b)(3)(A).
182 Proposed 18 U.S.C. 3664A(a)(2).
183 21 U.S.C. 853(e)(1)(“Upon application of the United States, the court may enter a restraining order or injunction,
require the execution of a satisfactory performance bond, or take any other action to preserve the availability of
property described in subsection (a) of this section for forfeiture under this section ... (B) prior to the filing of such an
indictment or information, if, after notice to persons appearing to have an interest in the property and opportunity for a
hearing, the court determines that – (i) there is a substantial probability that the United States will prevail on the issue
of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction
of the court, or otherwise made unavailable for forfeiture; and (ii) the need to preserve the availability of the property
through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered:
Provided, however, That an order entered pursuant to subparagraph (B) shall be effective for not more than ninety days,
unless extended by the court for good cause shown or unless an indictment or information described in subparagraph
(A) has been filed”).
184 21 U.S.C. 853(e)(2)(“A temporary restraining order under this subsection may be entered upon application of the
issuance of the restraining order ex parte in all cases.185 Such ex parte restraining orders are 186
temporary, good for only ten days unless extended for cause. Absent an indictment, the 187
restraining order is only good for ninety days, unless extended for cause. Section 3664A does
not describe the post-restraint hearing to be held in pre-indictment cases. Section 853(e)(1)(B)
indicates that upon application of the United States, the court may enter protective orders to
preserve the availability of property which the government asserts is subject to criminal forfeiture
prior to indictment if it finds
that – (i) there is a substantial probability that the United States will prevail on the issue of
forfeiture and that failure to enter the order will result in the property being destroyed,
removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property through the entry of the requested
order outweighs the hardship on any party against whom the order is to be entered.
Substituting the word “restitution” for “forfeiture,” this is the likely description of the hearing the
Most courts have held that protective orders freezing innocent assets under 21 U.S.C. 853(e) may 188
not be issued prior to conviction. Whether the bills intend to adopt this case law as part of their
adoption of Section 853(e) is not clear.
Under the bills, an indicted defendant may not plead his innocence as the basis for lifting the 189
restraining order. Third parties may move for modification of a restraining order on the grounds 190
of hardship and less onerous alternatives. At least on the face of things, third parties may not
United States without notice or opportunity for a hearing when an information or indictment has not yet been filed with
respect to the property, if the United States demonstrates that there is probable cause to believe that the property with
respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section and
that provision of notice will jeopardize the availability of the property for forfeiture. Such a temporary order shall
expire not more than ten days after the date on which it is entered, unless extended for good cause shown or unless the
party against whom it is entered consents to an extension for a longer period. A hearing requested concerning an order
entered under this paragraph shall be held at the earliest possible time and prior to the expiration of the temporary
185 “Upon the government’s ex parte application and a finding of probable cause ... the court shall – enter a restraining
order ...” proposed 18 U.S.C. 3664A(a)(1). In the case of a preindictment protective order entered under subsection
(a)(1), the defendant’s right to a post-restraint hearing shall be governed by paragraphs (1)(B) and (2) of ... 21 U.S.C.
853(e),” proposed 18 U.S.C. 3664A(b)(1)(emphasis added).
187 21 U.S.C. 853(e)(1).
188 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. thth
1994); United States v. Floyd, 992 F.2d 498, 502 (5 Cir. 1993); contra, In re Billman, 915 F.2d 916, 921 (4 Cir.
189 Proposed 18 U.S.C. 3664A(b)(5)(“In any pretrial hearing on a protective order issued under subsection (a)(1), the
court may not entertain challenges to the grand jury’s finding of probable cause regarding the criminal offense giving
rise to a potential restitution order ... ”).
190 Proposed 18 U.S.C. 3664A(c)(1), (2)(“(1) A person other than the defendant who has a legal interest in property
affected by a protective order issued under subsection (a)(1) may move to modify the order on the grounds that – (A)
the order causes an immediate and irreparable hardship to the moving party; and (B) less intrusive means exist to
preserve the property for the purpose of restitution. (2) If, after considering any rebuttal evidence offered by the
government, the court determines that the moving party has made the showings required under paragraph (1), the court
shall modify the order to mitigate the hardship, to the extent that it is possible to do so while preserving the asset for
move to have a restraining order modified on the grounds that the property restrained belongs to
them rather than to the defendant, although they may do so at the conclusion of the criminal 191
Traditionally, the federal courts will not enjoin the commission of a crime unless expressly 192
authorized to do so by statute. As part of the Comprehensive Crime Control Act of 1984,
Congress enacted 18 U.S.C. 1345 which authorized the federal courts to enjoin the commission of 193
mail, bank, or wire fraud. Over the years, it expanded the authorization to encompass false
claims against the United States, conspiracies to defrauding the United States, false statements in
a matter within the jurisdiction of a federal agency or department, securities fraud, banking law 194
offenses, and health care crimes. In 1990, it also authorize federal courts to freeze property 195
derived from some of these offenses, namely, banking law or health care offenses.
H.R. 845 and S. 973 each enlarge Section 1345 to authorize both injunctions and freeze orders 196
relating to any federal offenses for which restitution might be ordered. Their reach is somewhat
different since their view of offenses for which restitution may be ordered is different. For H.R. 197
845, it is any federal offense which proximately causes another pecuniary loss. For S. 973, it is
the mandatory restitution crimes, that is, any federal crime of violence, crimes of fraud or 198
property damage proscribed in Title 18, and product tampering, as well as the discretionary
restitution crimes, that is, any other crime proscribed in Title 18, various aircraft safety and drug 199
offenses, and the environmental crimes that S. 973 adds to the restitution list.
The Justice Department materials do not identify any particular reason why expansion would be
necessary or useful. The failure to expand the authority to enjoin a wider range of criminal
violations would not appear to have any obvious restitution consequences. Expanding the
authority to issue restraining orders does have restitution consequences, but it is not clear what
191 Proposed 18 U.S.C. 3664A(c)(3)(“(A) Except as provided in subparagraph (B) or paragraph (1), a person other than
a defendant has no right to intervene in the criminal case to object to the entry of any order issued under this section or
otherwise to object to an order directing a defendant to pay restitution. (B) If, at the conclusion of the criminal case, the
court orders the defendant to use particular assets to satisfy an order of restitution (including assets that have been
seized or restrained pursuant to this section) the court shall give persons other than the defendant the opportunity to
object to the order on the ground that the property belonged in whole or in part to the third party and not to the
defendant, as provided in section 413(n) of the Controlled Substances Act (21 U.S.C. 853(n))”).
192 United States v. Santee Sioux Tribe, 135 F.3d 558, 565 (8th Cir. 1998); cf., United States v. Dixon, 509 U.S. 688, 695
(1993)(“[T]here was a long common law tradition against judicial orders prohibiting violation of the law. Injunctions,
for example, would not issue to forbid infringement of criminal or civil laws, in the absence of some separate injury to
193 18 U.S.C. 1345 (1982 ed. (Supp.II)).
194 18 U.S.C. 1345, 1347.
195 18 U.S.C. 1345(a)(2).
196 H.R. 845, proposed 18 U.S.C. 1345(a)(1), (2); S. 973, proposed 18 U.S.C. 1345(a)(1), (2).
197 Proposed 18 U.S.C. 3663(a).
198 18 U.S.C. 3663A (mandatory restitution).
199 Proposed 18 U.S.C. 3663.
amending Section 1345 provides that is not or should not be addressed in the context of proposed
S. 973 amends the fine collection language in Section 3572(d) so that it runs parallel to the bill’s 200
amendments relating to restitution collection. H.R. 845 has no comparable provision. Present
law directs that fines be paid immediately, unless in the interests of justice, the court authorizes an 201
installment payment schedule. Installment payments are to be scheduled to permit full payment 202
as quickly as possible. The defendant is obligated to inform the court of any change in his 203
financial circumstances and the court may modify the order for payment accordingly.
Following the pattern it uses for restitution, S. 973 eliminates the language that might suggest that
the court has exclusive and predominant payment scheduling authority. In its place appears
language that instructs the courts to order that “any fine or assessment imposed be due 204
immediately;” couches their installment payment scheduling authority in permissive (“may”) 205
rather than mandatory (“shall”) terms; and adds references to the special enforcement authority 206
of the government. As with restitution, S. 973 instructs the court to direct defendants to:
- pay their fines and assessments as quickly as is reasonably possible;
- avoid concealment or dissipation of assets or income;
- notify the court of any change of address; and
- notify the prosecutor of any change of address or financial circumstances.207
For purposes of fine and special assessment collection, by virtue of S. 973 prosecutors enjoy
access, without the necessity of court approval, to financial information relating to the defendant 208
and held by the grand jury, Probation Office, or Bureau of Prisons.
S. 973 adds that the court may impose nominal payment schedules set at no less than $100 per
year where the defendant’s financial circumstances preclude a more substantial payment
200 Proposed 18 U.S.C. 3572(d).
201 18 U.S.C. 3572(d)(1).
202 18 U.S.C. 3572(d)(2).
203 18 U.S.C. 3572(d)(3).
204 Proposed 18 U.S.C. 3572(d)(1).
205 Proposed 18 U.S.C. 3572(d)(5)(“ ... the court may – (i) impose special payment directions ... or (ii) direct the
defendant to make a single, lump sum payment, or partial payments at specified intervals”).
206 Proposed 18 U.S.C. 3572(d)(9)(“Court-imposed special payment directions shall not limit the ability of the Attorney
General to maintain an Inmate Financial Responsibility Program ...”); proposed 18 U.S.C. 3572(d)(10)(“(A) The ability
of the Attorney General to enforce the fines and assessments order ... shall not be limited by appeal ... (B) Exceptions ...
(C) No order described in subparagraph (B) shall restrain the ability of the United States to continue its investigation
207 Proposed 18 U.S.C. 3572(d)(2); see also proposed 18 U.S.C. 3572(d)(5)(B)(“The period of time over which
scheduled payments are established for purposes of this paragraph shall be the shortest time in which full payment can
reasonably be made”).
208 Proposed 18 U.S.C. 3572(d)(4).
schedule.209 It may also adjust these or any other payment schedules “at any time prior to the
termination of a restitution obligation under Section 3613,” which presumably means during the
defendant is not imprisoned. The court may issue a restraining order or take other protection 211
measures to prevent the scattering of assets that might be used to pay the defendant’s fine. It 212
may also order the defendant to return scattered crime-generated assets and perhaps to turn 213
over non-exempt assets.
Finally, S. 973 describes the government’s authority to enforce fines pending appeal in the same
terms it used for restitution. A court may only stay the government’s enforcement efforts for good 214
cause. If it issues a stay, unless faced with exceptional circumstances, it must issue an 215
accompanying protective order except in exceptional circumstances. Any such protective order,
however, may not intrude upon the government’s prerogatives to investigate the defendant’s
financial circumstances, conduct discovery, file a lien, or invoke the equitable powers of the 216
Senior Specialist in American Public Law
209 Proposed 18 U.S.C. 3572(d)(8).
210 Proposed 18 U.S.C. 3572(d)(5)(A). The uncertainty flows from the fact that Section 3613 does not have a
completely unambiguous statement of the “termination of a restitution obligation.” It does say that “[t]he liability to
pay a fine shall terminate the later of 20 years from the entry of judgment or 20 years after the release form
imprisonment of the person fined, or upon the death of the individual fined,” 18 U.S.C. 3613(b)(emphasis added). And
it states that section’s authority is available to the government for the “enforcement” of restitution orders, 18 U.S.C.
3613(f). Although some may argue that does not necessary mean the fine termination dates in subsection 3613(b)
apply, section 3613 treats them as if they do: “an order or restitution ... is a lien in favor the United States .... The lien
arises on the entry of judgment and continues for 20 years ... or until the liability ... is terminated under subsection (b),”
18 U.S.C. 3613(c). On the other hand, if the termination dates for fines and restitution orders are the same under section
3613, why does S. 973 state that the court may modify its fine enforcement order up until the date for termination under
Section 3613 for restitution orders (instead of for fines). The most logical explanation may be this was a simple drafting
oversight; the phrase in proposed section 3572(d)(5)(A) should read “termination of a fine obligation under Section
3613” not “termination of a restitution obligation under Section 3613.”
211 Proposed 18 U.S.C. 3572(d)(5)(G).
212 Proposed 18 U.S.C. 3572(d)(5)(C)(“The court may direct the defendant to repatriate any property that constitutes
proceeds of the offense of conviction, or property traceable to such proceeds”). It is not clear why the court should not
be authorized to order the repatriation of any asset that might be used satisfy the obligation to pay a fine.
213 Proposed 18 U.S.C. 3572(d)(5)(D)(emphasis added)(“In ordering restitution, the court may direct the defendant to
surrender to the United States any interest of the defendant in any non-exempt asset. This too may well be a drafting
oversight where use of the word “fine” rather than “restitution” was intended. The non-exempt assets refer to those that
do not qualify for exemption under section 3613, that is, assets qualify for the exemption under 26 U.S.C. 6334(a)(1),
(2), (3), (4), (5), (6), (7), (8), (10), and (12) of the tax laws.
214 18 U.S.C. 3572(d)(10(A).
215 18 U.S.C. 3572(d)(10(B).
216 18 U.S.C. 3572(d)(10(C).