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.