§ 3664. Procedure for issuance and enforcement of order of restitution
Summary
These pages reprint 18 U.S.C. § 3664, 'Procedure for issuance and enforcement of order of restitution,' with the end of the preceding section and the start of §§ 3665 and 3666. The section has the court order the probation officer to include in the presentence report, to the extent practicable, a complete accounting of each victim's losses and information on each defendant's economic circumstances, and disputes over restitution are resolved by the court by the preponderance of the evidence. If losses are not ascertainable 10 days before sentencing, the court sets a final determination date not to exceed 90 days after sentencing, and a victim who discovers further losses has 60 days to petition for an amended order. The history note traces the section to Pub. L. 97–291 of Oct. 12, 1982, renumbered as § 3664 by Pub. L. 98–473, with amendments through Nov. 2, 2002.
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§ 3664 TITLE 18—CRIMES AND CRIMINAL PROCEDURE Page 864
which defendant is convicted on or after Apr. 24, 1996, formation that the court requires relating to
see section 211 of Pub. L. 104–132, set out as an Effective such other factors as the court deems appro-
Date of 1996 Amendment note under section 2248 of this priate.
title. (4) After reviewing the report of the probation
§ 3664. Procedure for issuance and enforcement officer, the court may require additional docu-
of order of restitution mentation or hear testimony. The privacy of
any records filed, or testimony heard, pursuant
(a) For orders of restitution under this title, to this section shall be maintained to the great-
the court shall order the probation officer to ob- est extent possible, and such records may be
tain and include in its presentence report, or in filed or testimony heard in camera.
a separate report, as the court may direct, infor- (5) If the victim’s losses are not ascertainable
mation sufficient for the court to exercise its by the date that is 10 days prior to sentencing,
discretion in fashioning a restitution order. The the attorney for the Government or the proba-
report shall include, to the extent practicable, a tion officer shall so inform the court, and the
complete accounting of the losses to each vic- court shall set a date for the final determination
tim, any restitution owed pursuant to a plea of the victim’s losses, not to exceed 90 days after
agreement, and information relating to the eco- sentencing. If the victim subsequently discovers
nomic circumstances of each defendant. If the further losses, the victim shall have 60 days
number or identity of victims cannot be reason- after discovery of those losses in which to peti-
ably ascertained, or other circumstances exist tion the court for an amended restitution order.
that make this requirement clearly impracti- Such order may be granted only upon a showing
cable, the probation officer shall so inform the of good cause for the failure to include such
court. losses in the initial claim for restitutionary re-
(b) The court shall disclose to both the defend- lief.
ant and the attorney for the Government all (6) The court may refer any issue arising in
portions of the presentence or other report per- connection with a proposed order of restitution
taining to the matters described in subsection to a magistrate judge or special master for pro-
(a) of this section. posed findings of fact and recommendations as
(c) The provisions of this chapter, chapter 227, to disposition, subject to a de novo determina-
and Rule 32(c) of the Federal Rules of Criminal tion of the issue by the court.
Procedure shall be the only rules applicable to (e) Any dispute as to the proper amount or
proceedings under this section. type of restitution shall be resolved by the court
(d)(1) Upon the request of the probation offi- by the preponderance of the evidence. The bur-
cer, but not later than 60 days prior to the date den of demonstrating the amount of the loss sus-
initially set for sentencing, the attorney for the tained by a victim as a result of the offense
Government, after consulting, to the extent shall be on the attorney for the Government.
practicable, with all identified victims, shall The burden of demonstrating the financial re-
promptly provide the probation officer with a sources of the defendant and the financial needs
listing of the amounts subject to restitution. of the defendant’s dependents, shall be on the
(2) The probation officer shall, prior to sub- defendant. The burden of demonstrating such
mitting the presentence report under subsection other matters as the court deems appropriate
(a), to the extent practicable— shall be upon the party designated by the court
(A) provide notice to all identified victims as justice requires.
of— (f)(1)(A) In each order of restitution, the court
(i) the offense or offenses of which the de- shall order restitution to each victim in the full
fendant was convicted; amount of each victim’s losses as determined by
(ii) the amounts subject to restitution sub- the court and without consideration of the eco-
mitted to the probation officer; nomic circumstances of the defendant.
(iii) the opportunity of the victim to sub- (B) In no case shall the fact that a victim has
mit information to the probation officer received or is entitled to receive compensation
concerning the amount of the victim’s with respect to a loss from insurance or any
losses; other source be considered in determining the
(iv) the scheduled date, time, and place of amount of restitution.
the sentencing hearing; (2) Upon determination of the amount of res-
(v) the availability of a lien in favor of the titution owed to each victim, the court shall,
victim pursuant to subsection (m)(1)(B); and pursuant to section 3572, specify in the restitu-
(vi) the opportunity of the victim to file tion order the manner in which, and the sched-
with the probation officer a separate affi- ule according to which, the restitution is to be
davit relating to the amount of the victim’s paid, in consideration of—
losses subject to restitution; and (A) the financial resources and other assets
of the defendant, including whether any of
(B) provide the victim with an affidavit form these assets are jointly controlled;
to submit pursuant to subparagraph (A)(vi). (B) projected earnings and other income of
(3) Each defendant shall prepare and file with the defendant; and
the probation officer an affidavit fully describ- (C) any financial obligations of the defend-
ing the financial resources of the defendant, in- ant; including obligations to dependents.
cluding a complete listing of all assets owned or (3)(A) A restitution order may direct the de-
controlled by the defendant as of the date on fendant to make a single, lump-sum payment,
which the defendant was arrested, the financial partial payments at specified intervals, in-kind
needs and earning ability of the defendant and payments, or a combination of payments at
the defendant’s dependents, and such other in- specified intervals and in-kind payments.
Page 865 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3664
(B) A restitution order may direct the defend- tion, or the motion of any party, including the
ant to make nominal periodic payments if the victim, adjust the payment schedule, or require
court finds from facts on the record that the immediate payment in full, as the interests of
economic circumstances of the defendant do not justice require.
allow the payment of any amount of a restitu- (l) A conviction of a defendant for an offense
tion order, and do not allow for the payment of involving the act giving rise to an order of res-
the full amount of a restitution order in the titution shall estop the defendant from denying
foreseeable future under any reasonable sched- the essential allegations of that offense in any
ule of payments. subsequent Federal civil proceeding or State
(4) An in-kind payment described in paragraph civil proceeding, to the extent consistent with
(3) may be in the form of— State law, brought by the victim.
(A) return of property; (m)(1)(A)(i) An order of restitution may be en-
(B) replacement of property; or forced by the United States in the manner pro-
(C) if the victim agrees, services rendered to vided for in subchapter C of chapter 227 and sub-
the victim or a person or organization other chapter B of chapter 229 of this title; or
than the victim. (ii) by all other available and reasonable
means.
(g)(1) No victim shall be required to partici- (B) At the request of a victim named in a res-
pate in any phase of a restitution order. titution order, the clerk of the court shall issue
(2) A victim may at any time assign the vic- an abstract of judgment certifying that a judg-
tim’s interest in restitution payments to the ment has been entered in favor of such victim in
Crime Victims Fund in the Treasury without in the amount specified in the restitution order.
any way impairing the obligation of the defend- Upon registering, recording, docketing, or index-
ant to make such payments. ing such abstract in accordance with the rules
(h) If the court finds that more than 1 defend- and requirements relating to judgments of the
ant has contributed to the loss of a victim, the court of the State where the district court is lo-
court may make each defendant liable for pay- cated, the abstract of judgment shall be a lien
ment of the full amount of restitution or may on the property of the defendant located in such
apportion liability among the defendants to re- State in the same manner and to the same ex-
flect the level of contribution to the victim’s tent and under the same conditions as a judg-
loss and economic circumstances of each defend- ment of a court of general jurisdiction in that
ant. State.
(i) If the court finds that more than 1 victim (2) An order of in-kind restitution in the form
has sustained a loss requiring restitution by a of services shall be enforced by the probation of-
defendant, the court may provide for a different ficer.
payment schedule for each victim based on the (n) If a person obligated to provide restitution,
type and amount of each victim’s loss and ac- or pay a fine, receives substantial resources
counting for the economic circumstances of from any source, including inheritance, settle-
each victim. In any case in which the United ment, or other judgment, during a period of in-
States is a victim, the court shall ensure that carceration, such person shall be required to
all other victims receive full restitution before apply the value of such resources to any restitu-
the United States receives any restitution. tion or fine still owed.
(j)(1) If a victim has received compensation (o) A sentence that imposes an order of res-
from insurance or any other source with respect titution is a final judgment notwithstanding the
to a loss, the court shall order that restitution fact that—
be paid to the person who provided or is obli- (1) such a sentence can subsequently be—
gated to provide the compensation, but the res- (A) corrected under Rule 35 of the Federal
titution order shall provide that all restitution Rules of Criminal Procedure and section 3742
of victims required by the order be paid to the of chapter 235 of this title;
(B) appealed and modified under section
victims before any restitution is paid to such a
3742;
provider of compensation. (C) amended under subsection (d)(5); or
(2) Any amount paid to a victim under an (D) adjusted under section 3664(k), 3572, or
order of restitution shall be reduced by any 3613A; or
amount later recovered as compensatory dam-
ages for the same loss by the victim in— (2) the defendant may be resentenced under
(A) any Federal civil proceeding; and section 3565 or 3614.
(B) any State civil proceeding, to the extent (p) Nothing in this section or sections 2248,
provided by the law of the State. 2259, 2264, 2327, 3663, and 3663A and arising out of
(k) A restitution order shall provide that the the application of such sections, shall be con-
defendant shall notify the court and the Attor- strued to create a cause of action not otherwise
ney General of any material change in the de- authorized in favor of any person against the
fendant’s economic circumstances that might United States or any officer or employee of the
affect the defendant’s ability to pay restitution. United States.
The court may also accept notification of a ma- (Added Pub. L. 97–291, § 5(a), Oct. 12, 1982, 96 Stat.
terial change in the defendant’s economic cir- 1255, § 3580; renumbered § 3664, Pub. L. 98–473,
cumstances from the United States or from the title II, § 212(a)(1), Oct. 12, 1984, 98 Stat. 1987;
victim. The Attorney General shall certify to amended Pub. L. 101–647, title XXXV, § 3596, Nov.
the court that the victim or victims owed res- 29, 1990, 104 Stat. 4931; Pub. L. 104–132, title II,
titution by the defendant have been notified of § 206(a), Apr. 24, 1996, 110 Stat. 1232; Pub. L.
the change in circumstances. Upon receipt of 107–273, div. B, title IV, § 4002(e)(1), Nov. 2, 2002,
the notification, the court may, on its own mo- 116 Stat. 1810.)
§ 3665 TITLE 18—CRIMES AND CRIMINAL PROCEDURE Page 866
Editorial Notes Pub. L. 98–473, title II, § 212(a)(1), Oct. 12, 1984, 98
REFERENCES IN TEXT
Stat. 1987.)
The Federal Rules of Criminal Procedure, referred to HISTORICAL AND REVISION NOTES
in subsecs. (c) and (o)(1)(A), are set out in the Appendix 1948 ACT
to this title.
Based on title 18, U.S.C., 1940 ed., § 570 (Jan. 7, 1925,
AMENDMENTS ch. 33, 43 Stat. 726).
Changes were made in phraseology.
2002—Subsec. (o)(1)(C). Pub. L. 107–273 substituted
‘‘subsection (d)(5)’’ for ‘‘section 3664(d)(3)’’. 1949 ACT
1996—Pub. L. 104–132 amended section generally, sub-
stituting provisions relating to procedure for issuance This section [section 55] corrects section 3612 of title
and enforcement of orders of restitution for provisions 18, U.S.C., so that the reference in such section will be
relating to procedure for issuing orders of restitution. to the correct section number in title 28, U.S.C., as re-
1990—Subsec. (a). Pub. L. 101–647 substituted ‘‘3663’’ vised and enacted in 1948.
for ‘‘3579’’.
Editorial Notes
Statutory Notes and Related Subsidiaries
AMENDMENTS
EFFECTIVE DATE OF 1996 AMENDMENT 1949—Act May 24, 1949, substituted ‘‘section 2042’’ for
Amendment by Pub. L. 104–132 to be effective, to ex- ‘‘section 852’’.
tent constitutionally permissible, for sentencing pro-
ceedings in cases in which defendant is convicted on or § 3667. Liquors and related property; definitions
after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set
out as a note under section 2248 of this title. All liquor involved in any violation of sections
1261–1265 of this title, the containers of such liq-
EFFECTIVE DATE uor, and every vehicle or vessel used in the
Section effective with respect to offenses occurring transportation thereof, shall be seized and for-
after Jan. 1, 1983, see section 9(b)(2) of Pub. L. 97–291, feited and such property or its proceeds disposed
set out as a note under section 1512 of this title. of in accordance with the laws relating to sei-
zures, forfeitures, and dispositions of property
§ 3665. Firearms possessed by convicted felons or proceeds, for violation of the internal-revenue
A judgment of conviction for transporting a laws.
stolen motor vehicle in interstate or foreign As used in this section, ‘‘vessel’’ includes
commerce or for committing or attempting to every description of watercraft used, or capable
commit a felony in violation of any law of the of being used, as a means of transportation in
United States involving the use of threats, water or in water and air; ‘‘vehicle’’ includes
force, or violence or perpetrated in whole or in animals and every description of carriage or
part by the use of firearms, may, in addition to other contrivance used, or capable of being used,
the penalty provided by law for such offense, as a means of transportation on land or through
order the confiscation and disposal of firearms the air.
and ammunition found in the possession or (June 25, 1948, ch. 645, 62 Stat. 840, § 3615; renum-
under the immediate control of the defendant at bered § 3667, Pub. L. 98–473, title II, § 212(a)(1),
the time of his arrest. Oct. 12, 1984, 98 Stat. 1987.)
The court may direct the delivery of such fire-
arms or ammunition to the law-enforcement HISTORICAL AND REVISION NOTES
agency which apprehended such person, for its Based on sections 222 and 224 of title 27, U.S.C., 1940
use or for any other disposition in its discretion. ed., Intoxicating Liquors (June 25, 1936, ch. 815, §§ 2, 4,
49 Stat. 1928).
(June 25, 1948, ch. 645, 62 Stat. 839, § 3611; renum- Section consolidates sections 222 and 224 of title 27,
bered § 3665, Pub. L. 98–473, title II, § 212(a)(1), U.S.C., 1940 ed., with changes in phraseology and ar-
Oct. 12, 1984, 98 Stat. 1987.) rangement necessary to effect the consolidation. Said
section 222 is also incorporated in section 1262 of this
HISTORICAL AND REVISION NOTES title.
Based on title 18, U.S.C., 1940 ed., § 645 (June 13, 1939, Definition of ‘‘State’’ in section 222 of title 27 U.S.C.,
ch. 197, 53 Stat. 814). 1940 ed., as meaning and including ‘‘every State, Terri-
The condensation and simplification of this section tory, and Possession of the United States,’’ was omit-
clarifies its intent to confiscate the firearms taken ted because the words ‘‘Territory, District,’’ and so
from persons convicted of crimes of violence without forth, appear after ‘‘State’’ in sections 1262, 1265, of this
any real change of substance. title, which are the only sections in chapter 59, consti-
tuting sections 1261–1265 of this title, to which such def-
§ 3666. Bribe moneys inition would have been applicable.
Changes made in phraseology.
Moneys received or tendered in evidence in
any United States Court, or before any officer § 3668. Remission or mitigation of forfeitures
thereof, which have been paid to or received by under liquor laws; possession pending trial
any official as a bribe, shall, after the final dis- (a) JURISDICTION OF COURT
position of the case, proceeding or investigation, Whenever, in any proceeding in court for the
be deposited in the registry of the court to be forfeiture, under the internal-revenue laws, of
disposed of in accordance with the order of the any vehicle or aircraft seized for a violation of
court, to be subject, however, to the provisions the internal-revenue laws relating to liquors,
of section 2042 of Title 28. such forfeiture is decreed, the court shall have
(June 25, 1948, ch. 645, 62 Stat. 840, § 3612; May 24, exclusive jurisdiction to remit or mitigate the
1949, ch. 139, § 55, 63 Stat. 96; renumbered § 3666, forfeiture.
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