§ 3664. — Procedure for issuance and enforcement of order of restitution.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 18USC3664]
TITLE 18--CRIMES AND CRIMINAL PROCEDURE
PART II--CRIMINAL PROCEDURE
CHAPTER 232--MISCELLANEOUS SENTENCING PROVISIONS
Sec. 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.
(Added Pub. L. 97-291, Sec. 5(a), Oct. 12, 1982, 96 Stat. 1255,
Sec. 3580; renumbered Sec. 3664, Pub. L. 98-473, title II,
Sec. 212(a)(1), Oct. 12, 1984, 98 Stat. 1987; amended Pub. L. 101-647,
title XXXV, Sec. 3596, Nov. 29, 1990, 104 Stat. 4931; Pub. L. 104-132,
title II, Sec. 206(a), Apr. 24, 1996, 110 Stat. 1232; Pub. L. 107-273,
div. B, title IV, Sec. 4002(e)(1), Nov. 2, 2002, 116 Stat. 1810.)
References in Text
The Federal Rules of Criminal Procedure, referred to in subsecs. (c)
and (o)(1)(A), are set out in the Appendix to this title.
Amendments
2002--Subsec. (o)(1)(C). Pub. L. 107-273 substituted ``subsection
(d)(5)'' for ``section 3664(d)(3)''.
1996--Pub. L. 104-132 amended section generally, substituting
provisions relating to procedure for issuance and enforcement of orders
of restitution for provisions relating to procedure for issuing orders
of restitution.
1990--Subsec. (a). Pub. L. 101-647 substituted ``3663'' for
``3579''.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104-132 to be effective, to extent
constitutionally permissible, for sentencing proceedings in cases in
which defendant is convicted on or after Apr. 24, 1996, see section 211
of Pub. L. 104-132, set out as a note under section 2248 of this title.
Effective Date
Section effective with respect to offenses occurring after Jan. 1,
1983, see section 9(b)(2) of Pub. L. 97-291, set out as a note under
section 1512 of this title.
Section Referred to in Other Sections
This section is referred to in sections 1593, 2248, 2259, 2264,
2327, 3556, 3563, 3613, 3663, 3663A of this title; title 21 section 853.
