18 U.S.C. § 3664 : US Code - Section 3664: Procedure for issuance and enforcement of order of restitution

Search 18 U.S.C. § 3664 : US Code - Section 3664: Procedure for issuance and enforcement of order of restitution

(a) For orders of restitution under this title, the court shall
order the probation officer to obtain and include in its
presentence report, or in a separate report, as the court may
direct, information sufficient for the court to exercise its
discretion in fashioning a restitution order. The report shall
include, to the extent practicable, a complete accounting of the
losses to each victim, any restitution owed pursuant to a plea
agreement, and information relating to the economic circumstances
of each defendant. If the number or identity of victims cannot be
reasonably ascertained, or other circumstances exist that make this
requirement clearly impracticable, the probation officer shall so
inform the court.
(b) The court shall disclose to both the defendant and the
attorney for the Government all portions of the presentence or
other report pertaining to the matters described in subsection (a)
of this section.
(c) The provisions of this chapter, chapter 227, and Rule 32(c)
of the Federal Rules of Criminal Procedure shall be the only rules
applicable to proceedings under this section.
(d)(1) 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.
(2) The probation officer shall, prior to submitting the
presentence report under subsection (a), to the extent practicable -

(A) provide notice to all identified victims of -
(i) the offense or offenses of which the defendant was
convicted;
(ii) the amounts subject to restitution submitted to the
probation officer;
(iii) the opportunity of the victim to submit information to
the probation officer concerning the amount of the victim's
losses;
(iv) the scheduled date, time, and place of the sentencing
hearing;
(v) the availability of a lien in favor of the victim
pursuant to subsection (m)(1)(B); and
(vi) the opportunity of the victim to file with the probation
officer a separate affidavit relating to the amount of the
victim's losses subject to restitution; and
(B) provide the victim with an affidavit form to submit
pursuant to subparagraph (A)(vi).
(3) Each defendant shall prepare and file with the probation
officer an affidavit fully describing the financial resources of
the defendant, including a complete listing of all assets owned or
controlled by the defendant as of the date on which the defendant
was arrested, the financial needs and earning ability of the
defendant and the defendant's dependents, and such other
information that the court requires relating to such other factors
as the court deems appropriate.
(4) After reviewing the report of the probation officer, the
court may require additional documentation or hear testimony. The
privacy of any records filed, or testimony heard, pursuant to this
section shall be maintained to the greatest extent possible, and
such records may be filed or testimony heard in camera.
(5) If the victim's losses are not ascertainable by the date that
is 10 days prior to sentencing, the attorney for the Government or
the probation officer shall so inform the court, and the court
shall set a date for the final determination of the victim's
losses, not to exceed 90 days after sentencing. If the victim
subsequently discovers further losses, the victim shall have 60
days after discovery of those losses in which to petition the court
for an amended restitution order. Such order may be granted only
upon a showing of good cause for the failure to include such losses
in the initial claim for restitutionary relief.
(6) The court may refer any issue arising in connection with a
proposed order of restitution to a magistrate judge or special
master for proposed findings of fact and recommendations as to
disposition, subject to a de novo determination of the issue by the
court.
(e) Any dispute as to the proper amount or type of restitution
shall be resolved by the court by the preponderance of the
evidence. The burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense shall be on the
attorney for the Government. The burden of demonstrating the
financial resources of the defendant and the financial needs of the
defendant's dependents, shall be on the defendant. The burden of
demonstrating such other matters as the court deems appropriate
shall be upon the party designated by the court as justice
requires.
(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.
(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.
(2) Upon determination of the amount of restitution owed to each
victim, the court shall, pursuant to section 3572, specify in the
restitution order the manner in which, and the schedule according
to which, the restitution is to be paid, in consideration of -
(A) the financial resources and other assets of the defendant,
including whether any of these assets are jointly controlled;
(B) projected earnings and other income of the defendant; and
(C) any financial obligations of the defendant; including
obligations to dependents.
(3)(A) A restitution order may direct the defendant to make a
single, lump-sum payment, partial payments at specified intervals,
in-kind payments, or a combination of payments at specified
intervals and in-kind payments.
(B) 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.
(4) An in-kind payment described in paragraph (3) may be in the
form of -
(A) return of property;
(B) replacement of property; or
(C) if the victim agrees, services rendered to the victim or a
person or organization other than the victim.
(g)(1) No victim shall be required to participate in any phase of
a restitution order.
(2) A victim may at any time assign the victim's interest in
restitution payments to the Crime Victims Fund in the Treasury
without in any way impairing the obligation of the defendant to
make such payments.
(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.
(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.
(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.
(2) Any amount paid to a victim under an order of restitution
shall be reduced by any amount later recovered as compensatory
damages for the same loss by the victim in -
(A) any Federal civil proceeding; and
(B) any State civil proceeding, to the extent provided by the
law of the State.
(k) A restitution order shall provide that the defendant shall
notify the court and the Attorney General of any material change in
the defendant's economic circumstances that might affect the
defendant's ability to pay restitution. The court may also accept
notification of a material change in the defendant's economic
circumstances from the United States or from the victim. The
Attorney General shall certify to the court that the victim or
victims owed restitution by the defendant have been notified of the
change in circumstances. Upon receipt of the notification, the
court may, on its own motion, or the motion of any party, including
the victim, adjust the payment schedule, or require immediate
payment in full, as the interests of justice require.
(l) A conviction of a defendant for an offense involving the act
giving rise to an order of restitution shall estop the defendant
from denying the essential allegations of that offense in any
subsequent Federal civil proceeding or State civil proceeding, to
the extent consistent with State law, brought by the victim.
(m)(1)(A)(i) 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.
(B) At the request of a victim named in a restitution order, the
clerk of the court shall issue an abstract of judgment certifying
that a judgment has been entered in favor of such victim in the
amount specified in the restitution order. Upon registering,
recording, docketing, or indexing such abstract in accordance with
the rules and requirements relating to judgments of the court of
the State where the district court is located, the abstract of
judgment shall be a lien on the property of the defendant located
in such State in the same manner and to the same extent and under
the same conditions as a judgment of a court of general
jurisdiction in that State.
(2) An order of in-kind restitution in the form of services shall
be enforced by the probation officer.
(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.
(o) A sentence that imposes an order of restitution is a final
judgment notwithstanding the fact that -
(1) such a sentence can subsequently be -
(A) corrected under Rule 35 of the Federal Rules of Criminal
Procedure and section 3742 of chapter 235 of this title;
(B) appealed and modified under section 3742;
(C) amended under subsection (d)(5); or
(D) adjusted under section 3664(k), 3572, or 3613A; or
(2) the defendant may be resentenced under section 3565 or
3614.
(p) Nothing in this section or sections 2248, 2259, 2264, 2327,
3663, and 3663A and arising out of the application of such
sections, shall be construed to create a cause of action not
otherwise authorized in favor of any person against the United
States or any officer or employee of the United States.