S 149 ISCommentsClose CommentsPermalink

To address the effect of the death of a defendant in Federal criminal proceedings.CommentsClose CommentsPermalink

January 4, 2007

Mrs. FEINSTEIN (for herself and Mr. SESSIONS) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To address the effect of the death of a defendant in Federal criminal proceedings.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the `Preserving Crime Victims' Restitution Act of 2007'.CommentsClose CommentsPermalink

SEC. 2. EFFECT OF DEATH OF A DEFENDANT IN FEDERAL CRIMINAL PROCEEDINGS.

(a) In General- Subchapter A of chapter 227 of title 18, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink

`Sec. 3560. Effect of death of a defendant in Federal criminal proceedings

`(a) General Rule- Notwithstanding any other provision of law, the death of a defendant who has been convicted of a Federal criminal offense shall not be the basis for abating or otherwise invalidating a plea of guilty or nolo contendere accepted, a verdict returned, a sentence announced, or a judgment entered prior to the death of that defendant, or for dismissing or otherwise invalidating the indictment, information, or complaint on which such a plea, verdict, sentence, or judgment is based, except as provided in this section.CommentsClose CommentsPermalink





`(b) Death After Plea or Verdict-CommentsClose CommentsPermalink





`(1) ENTRY OF JUDGMENT- If a defendant dies after a plea of guilty or nolo contendere has been accepted or a verdict has been returned, but before judgment is entered, the court shall enter a judgment incorporating the plea of guilty or nolo contendere or the verdict, with the notation that the defendant died before the judgment was entered.CommentsClose CommentsPermalink





`(2) PUNITIVE SANCTIONS-CommentsClose CommentsPermalink





`(A) DEATH BEFORE SENTENCE ANNOUNCED- 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, no sentence of probation, supervision, or imprisonment may be imposed, no criminal forfeiture may be ordered, and no liability for a fine or special assessment may be imposed on the defendant or the defendant's estate.CommentsClose CommentsPermalink





`(B) DEATH AFTER SENTENCING OR JUDGMENT- 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--CommentsClose CommentsPermalink





`(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 3013; andCommentsClose CommentsPermalink





`(ii) shall not require return of any portion of any criminal forfeiture, fine, or special assessment already paid.CommentsClose CommentsPermalink





`(3) RESTITUTION-CommentsClose CommentsPermalink





`(A) DEATH BEFORE SENTENCE ANNOUNCED- 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.CommentsClose CommentsPermalink





`(B) DEATH AFTER SENTENCING OR JUDGMENT- The death of a defendant after a sentence has been announced shall not be a basis for abating or otherwise invalidating restitution announced at sentencing or ordered after sentencing under section 3664(d)(5) of this title or any other provision of law.CommentsClose CommentsPermalink





`(4) CIVIL PROCEEDINGS- The death of a defendant after a plea of guilty or nolo contendere has been accepted, a verdict returned, a sentence announced, or a judgment entered, shall not prevent the use of that plea, verdict, sentence, or judgment in civil proceedings, to the extent otherwise permitted by law.CommentsClose CommentsPermalink





`(c) Appeals, Motions, and Petitions-CommentsClose CommentsPermalink





`(1) IN GENERAL- Except as provided in paragraph (2), after the death of a defendant convicted in a criminal case--CommentsClose CommentsPermalink





`(A) no appeal, motion, or petition by or on behalf of that defendant or the personal representative or estate of that defendant, the Government, or a victim of that defendant's crime seeking to challenge or reinstate a plea of guilty or nolo contendere accepted, a verdict returned, a sentence announced, or a judgment entered prior to the death of that defendant shall be filed in that case after the death of that defendant; andCommentsClose CommentsPermalink





`(B) any pending motion, petition, or appeal in that case shall be dismissed with the notation that the dismissal is due to the death of the defendant.CommentsClose CommentsPermalink





`(2) EXCEPTIONS-CommentsClose CommentsPermalink





`(A) RESTITUTION- 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--CommentsClose CommentsPermalink





`(i) obtain, in a special restitution proceeding, a final order of restitution under subsection (b)(3);CommentsClose CommentsPermalink





`(ii) enforce, correct, amend, adjust, reinstate, or challenge any order of restitution; orCommentsClose CommentsPermalink





`(iii) challenge or reinstate a verdict, plea of guilty or nolo contendere, sentence, or judgment on which--CommentsClose CommentsPermalink





`(I) a restitution order is based; orCommentsClose CommentsPermalink





`(II) restitution is being or will be sought by an appeal, petition, or motion under this paragraph.CommentsClose CommentsPermalink





`(B) OTHER CIVIL ACTIONS AFFECTED- 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.CommentsClose CommentsPermalink





`(C) COLLATERAL CONSEQUENCES-CommentsClose CommentsPermalink





`(i) IN GENERAL- Except as provided in subparagraphs (A) and (B), the Government may not restrict any Federal benefits or impose collateral consequences on the estate or a family member of a deceased defendant based solely on the conviction of a defendant who died before that defendant exhausted or waived the right to direct appeal unless, not later than 90 days after the death of that defendant, the Government gives notice to that estate or family member of the intent of the Government to take such action.CommentsClose CommentsPermalink





`(ii) PERSONAL REPRESENTATIVE- If the Government gives notice under clause (i), the court shall appoint a personal representative for the deceased defendant that is the subject of that notice, if not otherwise appointed, under section (d)(2)(A).CommentsClose CommentsPermalink





`(iii) TOLLING- If the Government gives notice under clause (i), any filing deadline that might otherwise apply against the defendant, the estate of the defendant, or a family member of the defendant shall be tolled until the date of the appointment of that defendant's personal representative under clause (ii).CommentsClose CommentsPermalink





`(3) BASIS- In any appeal, petition, or motion under paragraph (2), the death of the defendant shall not be a basis for relief.CommentsClose CommentsPermalink





`(d) Procedures Regarding Continuing Litigation-CommentsClose CommentsPermalink





`(1) IN GENERAL- The standards and procedures for a permitted appeal, petition, motion, or other proceeding under subsection (c)(2) shall be the standards and procedures otherwise provided by law, except that the personal representative of the defendant shall be substituted for the defendant.CommentsClose CommentsPermalink





`(2) SPECIAL PROCEDURES- If continuing litigation is initiated or could be initiated under subsection (c)(2), the following procedures shall apply:CommentsClose CommentsPermalink





`(A) NOTICE AND APPOINTMENT OF PERSONAL REPRESENTATIVE- The district court before which the criminal case was filed (or the appellate court if the matter is pending on direct appeal) shall--CommentsClose CommentsPermalink





`(i) give notice to any victim of the convicted defendant under section 3771(a)(2), and to the personal representative of that defendant or, if there is none, the next of kin of that defendant; andCommentsClose CommentsPermalink





`(ii) appoint a personal representative for that defendant, if not otherwise appointed.CommentsClose CommentsPermalink





`(B) COUNSEL- Counsel shall be appointed for the personal representative of a defendant convicted in a criminal case who dies if counsel would have been available to that defendant, or if the personal representative of that defendant requests counsel and otherwise qualifies for the appointment of counsel, under section 3006A.CommentsClose CommentsPermalink





`(C) TOLLING- The court shall toll any applicable deadline for the filing of any motion, petition, or appeal during the period beginning on the date of the death of a defendant convicted in a criminal case and ending on the later of--CommentsClose CommentsPermalink





`(i) the date of the appointment of that defendant's personal representative; orCommentsClose CommentsPermalink





`(ii) where applicable, the date of the appointment of counsel for that personal representative.CommentsClose CommentsPermalink





`(D) RESTITUTION- If restitution has not been fully collected on the date on which a defendant convicted in a criminal case dies--CommentsClose CommentsPermalink





`(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 that property is included in the estate of that defendant;CommentsClose CommentsPermalink





`(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; andCommentsClose CommentsPermalink





`(iii) upon motion by the Government or any victim of that defendant's crime, the court shall take any action necessary to preserve the availability of property for restitution under this section.CommentsClose CommentsPermalink





`(e) Forfeiture-CommentsClose CommentsPermalink





`(1) IN GENERAL- 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.CommentsClose CommentsPermalink





`(2) TOLLING OF LIMITATIONS FOR CIVIL FORFEITURE- 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 the time period otherwise authorized by law and 2 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 that individual.CommentsClose CommentsPermalink





`(f) Definitions- In this section--CommentsClose CommentsPermalink





`(1) the term `accepted', relating to a plea of guilty or nolo contendere, means that a court has determined, under rule 11(b) of the Federal Rules of Criminal Procedure, that the plea is voluntary and supported by a factual basis, regardless of whether final acceptance of that plea may have been deferred pending review of a presentence report or otherwise;CommentsClose CommentsPermalink





`(2) the term `announced', relating to a sentence, means that the sentence has been orally stated in open court;CommentsClose CommentsPermalink





`(3) the term `convicted' refers to a defendant--CommentsClose CommentsPermalink





`(A) whose plea of guilty or nolo contendere has been accepted; orCommentsClose CommentsPermalink





`(B) against whom a verdict of guilty has been returned;CommentsClose CommentsPermalink





`(4) the term `direct appeal' means an appeal filed, within the period provided by rule 4(b) of the Federal Rules of Appellate Procedure, from the entry of the judgment or order of restitution, including review by the Supreme Court of the United States; andCommentsClose CommentsPermalink





`(5) the term `returned', relating to a verdict, means that the verdict has been orally stated in open court.'.CommentsClose CommentsPermalink





(b) Conforming Amendment- The table of sections for chapter 227 of title 18, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





`3560. Effect of death of a defendant in Federal criminal proceedings.'.CommentsClose CommentsPermalink

SEC. 3. EFFECTIVE DATE.

The amendments made by this Act shall apply to any criminal case or appeal pending on or after July 1, 2007.CommentsClose CommentsPermalink

SEC. 4. SEVERABILITY.

If any provision of this Act, any amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of the provisions of this Act, the amendments made by this Act, and the application of such provisions or amendments to any person or circumstance shall not be affected.CommentsClose CommentsPermalink