I
109th CONGRESS
2d Session
H. R. 6374
IN THE HOUSE OF REPRESENTATIVES
December 5, 2006
Mr. Schiff (for himself, Mr. Gohmert, and Mr. Feeney) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To address the effect of the death of a defendant in Federal criminal proceedings.
Short title
This Act may be cited as the Preserving Crime Victims' Restitution Act of 2006
.
Effect of death of a defendant in Federal criminal proceedings
In General
Subchapter A of chapter 227 of title 18, United States Code, is amended by adding at the end the following:
Effect of death of a defendant in Federal criminal proceedings
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.
Death After Plea or Verdict
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.
Punitive sanctions
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.
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—
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; and
shall not require return of any portion of any criminal forfeiture, fine, or special assessment already paid.
Restitution
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.
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.
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.
Appeals, Motions, and Petitions
In general
Except as provided in paragraph (2), after the death of a defendant convicted in a criminal case—
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; and
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.
Exceptions
Restitution
After the death of a defendant convicted in a criminal case, 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—
obtain, in a special restitution proceeding, a final order of restitution under subsection (b)(3);
enforce, correct, amend, adjust, reinstate, or challenge any order of restitution; or
challenge or reinstate a verdict, plea of guilty or nolo contendere, sentence, or judgment on which—
a restitution order is based; or
restitution is being or will be sought by an appeal, petition, or motion under this paragraph.
Other civil actions affected
After the death of a defendant convicted in a criminal case, 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.
Collateral consequences
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.
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).
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).
Basis
In any appeal, petition, or motion under paragraph (2), the death of the defendant shall not be a basis for relief.
Procedures Regarding Continuing Litigation
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.
Special procedures
If continuing litigation is initiated or could be initiated under subsection (c)(2), the following procedures shall apply:
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—
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; and
appoint a personal representative for that defendant, if not otherwise appointed.
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.
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—
the date of the appointment of that defendant’s personal representative; or
where applicable, the date of the appointment of counsel for that personal representative.
Restitution
If restitution has not been fully collected on the date on which a defendant convicted in a criminal case dies—
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;
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; and
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.
Forfeiture
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.
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.
Definitions
In this section—
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;
the term announced, relating to a sentence, means that the sentence has been orally stated in open court;
the term convicted refers to a defendant—
whose plea of guilty or nolo contendere has been accepted; or
against whom a verdict of guilty has been returned;
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; and
the term returned, relating to a verdict, means that the verdict has been orally stated in open court.
.
Conforming Amendment
The table of sections for chapter 227 of title 18, United States Code, is amended by adding at the end the following:
3560. Effect of death of a defendant in Federal criminal proceedings.
.
Effective date
The amendments made by this Act shall apply to any criminal case or appeal pending on or after July 1, 2006.
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.