3-12.000
COLLECTION OF
CRIMINAL
MONETARY IMPOSITIONS
3-12.100 Role of the Executive
Office
for United States Attorneys
3-12.200 Responsibilities of the
United States Attorneys
3-12.210 Appearance Bond
Forfeiture
Judgments
3-12.220 Asset Forfeiture
Judgments
3-12.300 Enforcement of Criminal
Debts During
Appeal
3-12.320 Enforcement of Criminal
Debts
During Incarceration
3-12.330 Fines and Restitution
Imposed
as Conditions of Probation
3-12.340 Liens Against the
Defendant's
Property
3-12.350 Enforcement
Proceedings
3-12.360 Waiver of Interest and
Penalties
3-12.400 Suspense of Criminal
Collection
Activity
3-12.411 Suspense of Criminal
Fines --
Deportation
3-12.412 Suspense of Criminal
Fines --
Payment is Not Immediate
3-12.413 Suspense of Criminal
Fines --
Stay of Enforcement
3-12.414 Suspense of Criminal
Fines --
Criminal Debt is Uncollectible
3-12.415 Suspense of Criminal
Fines --
Defendant is Unlocatable
3-12.420 Approval Necessary to
Suspend
Collection Action
3-12.510 Remission --
Uncollectible Fines
3-12.520 Remission of Special
Assessments
3-12.600 Efforts for Victims of
Crime
The Executive Office for United States Attorneys (EOUSA) is
responsible for establishing policies and procedures for the
collection
of criminal fines which includes fines, assessments, penalties,
interest, restitution, bail bond forfeitures, and court costs in
criminal cases. See 28 C.F.R. §§ 0.22 and 0.171. The
Criminal
Division of the Department of Justice remains responsible for
establishing policy concerning the imposition of criminal fines.
See the
EOUSA Resource Manual at 111.
The United States Attorneys are responsible for the enforcement
of
judgments, fines, penalties and forfeitures imposed in their
respective
districts. However, the Assistant Attorney General for any
litigating
division which has jurisdiction over a case may assume such
enforcement
responsibilities if she or he so notifies the United States
Attorney in
writing. Numerous functions relating to the collection of criminal
fines
are assigned to the Attorney General by statute; these are now
delegated
to the United States Attorneys. See 28 C.F.R. § 0.171.
Each United States Attorney shall designate an Assistant United
States Attorney to be responsible for activities related to the
satisfaction, collection, or recovery of judgments, fines,
penalties,
and forfeitures (including bail bond forfeitures). 28 C.F.R. §
0.171.
For further information, see the EOUSA
Resource Manual at 112.
All forfeited appearance bonds should be moved to judgment and
collected as expeditiously as possible pursuant to Rule 46 of the
Federal Rules of Criminal Procedure.
If a money amount is stated in the Final Order of Forfeiture,
but
the defendant has no known assets, the Financial Litigation Unit
does
not open a collection case. In asset forfeiture cases the Financial
Litigation Unit performs a recording function rather than a
financial
litigation function. Any further monitoring of an asset forfeiture
money
judgment case must be done outside of the EOUSA case tracking
system.
Unless the court orders a stay of the criminal imposition as
part of
the criminal judgment, or provides for other than immediate payment
of
the fine or restitution, the government should execute on the
defendant's property as soon as practicable after sentencing.
If the court orders a stay, or the defendant requests a stay,
the
government should file a motion requesting the defendant deposit
the
entire money amount in the court's registry (or in the alternative
a
bond to guarantee its payment), an order restraining the defendant
from
transferring or dissipating assets, or require the defendant to
submit
to an asset examination.
United States Attorneys should make every effort to enforce
criminal
debts that are due during the period of the defendant's
incarceration,
including coordination of Inmate Financial Responsibility Program
payments with the Bureau of Prisons' case worker. Incarceration
alone is
not justification for placing a debt in suspense.
Collection procedures for fines and restitution that are
conditions
of probation vary according to the statute under which they are
imposed.
Caution should be exercised when collecting a criminal judgment
imposed
prior to November 11, 1987, as the applicable enforcement statutes
are
significantly different from current law.
Enforcement efforts on any debt owed by an offender under the
supervision of the United States Probation Office should be
coordinated
with that office.
In every restitution case where the victim is other than a
federal
agency, a notice of lien must be filed by the United States in
accordance with 18 U.S.C. § 3613. In cases involving only fines
or
restitution owed to a federal agency, a notice of lien must be
filed if
the total amount of those debts exceeds $500. Upon satisfaction of
the
debt, a Release of Lien should be filed or sent to the defendant.
The provisions of USAM
3-10.500
relating to the enforcement of civil debts, also apply to criminal
debt
collection. Special attention should be given to enforcing criminal
debts for offenses committed prior to November 11, 1987, as the
applicable statutes have since been modified. Criminal debts for
convictions on or after April 24, 1996, can be enforced under
federal or
state law or "by all other available and reasonable means." 18
U.S.C.
§ 3664(m)(1)(A)(i).
Interest and late payment penalties for criminal fines and
restitution may be waived by the United States Attorney if
reasonable
efforts to collect them are not likely to be effective. The waiver
of
interest and penalties should only be considered after the
principal
amount of the debt has been paid.
Prior to placing a criminal debt in suspense, liens must be
filed to
comply with USAM 3-12.340.
Criminal
debts that are no longer enforceable (e.g., fines over 20 years old
or
special assessments over five years old) should not be placed into
suspense. Fines over 20 years old should be closed unless the
United
States Attorney and the defendant have agreed in writing to an
extension
of the period of liability. 18 U.S.C. § 3565(h), repealed. The
obligation to pay a special assessment ceases five years after
judgment,
and as such, the special assessment should be closed. See 18 U.S.C.
§ 3013.
All criminal debts placed in suspense as uncollectible or
because
the defendant is unlocatable must be periodically reviewed to
determine
collectibility or whether the defendant can be located.
Appropriate dates must be entered into the case tracking system
to
ensure timely, periodic review. At least once every year
skiptracing
efforts must be undertaken or updated financial information
obtained to
determine if the defendant can be located or has the ability to
pay. If
the amount of the total criminal debt owed by the defendant is
equal to
or less than $25,000 but more than $10,000, this review may be
conducted
every two years. If the amount of the total criminal debt is
$10,000 or
less, this review may be conducted every three years.
Suspending collection action of a criminal debt has no effect
upon
the judgment's validity. Whenever the Financial Litigation Unit
learns
that a defendant has the ability to pay or the defendant can be
located,
the criminal debt must be promptly removed from suspense and
collection
action initiated.
Information on the coding of suspense action is available in
the
United States Attorney's office system operations manual.
The criminal debts of a defendant, regardless of the total
amount,
may be placed in suspense if the Financial Litigation Unit has been
advised or has information that the debtor has been deported or is
a
foreign national who has departed the United States. Where
appropriate,
remission of a fine, in accordance with the remission policy set
forth
below at 3-12.510, should be
considered.
When the court orders other than immediate payment of a
criminal
debt, the debt should be suspended until due.
If a criminal case is on appeal and the defendant is granted a
stay
of enforcement by the court pursuant to Fed. R. Crim. P. 38, all
criminal debts should be suspended until the stay is lifted.
The criminal debts of a defendant may be placed in suspense if
the
financial information obtained on the defendant within the last 180
days
(such as a financial statement, credit report or third party
information) indicates the defendant has no ability to pay or has
the
ability only to make nominal payments. Nominal payments are those
which,
if continued at the current payment rate, will not result in
payment in
full within the life of the debt. Nominal payments shall still be
accepted despite the debt being placed in suspense.
The criminal debts of a defendant may be placed in suspense if
a
current address is not available for the defendant and the
defendant
cannot be located after reasonable diligence. Reasonable diligence
is
defined as: (1) a policy established by the United States Attorney
when
the total criminal debts imposed against a defendant are less than
$100,000; and (2) at least three skiptracing efforts are completed
when
the total criminal debts imposed against a defendant are $100,000
or
more. If a Social Security Number and last known address are
available
for the defendant, a current credit report must be obtained prior
to the
case being placed in suspense.
Each United States Attorney's office must establish written
guidelines for
approving the suspense of collection. The following are recommended
guidelines, subject to the approval of the United States Attorney:
- For criminal debts imposed totalling less than $100,000,
senior
support staff in the Financial Litigation Unit may approve the
suspension of collection.
- For criminal debts imposed totalling $100,000 or more, the
Assistant
United States Attorney responsible for financial litigation must
approve
the suspension of collection.
Upon the petition of the government showing that reasonable
efforts
to collect a fine are not likely to be effective, the court may
remit
all or part of the unpaid portion of the fine. 18 U.S.C. §
3573.
Each United States Attorney should develop a written district
policy for the
remission of uncollectible fines to guide the Financial Litigation
Unit
in preparing petitions for remission. Where there is a reasonable
belief
that a fine will never be collected, a petition for remission of
all or
part of the fine is preferable to placing it in suspense.
Pursuant to 18 U.S.C. § 3013, the court shall impose a
special
assessment on any person convicted of an offense against the United
States. The imposition of special assessments under this section is
mandatory and without regard to the defendant's ability to pay.
Assessments are at times imposed against indigent defendants,
including
undocumented aliens who are about to be deported. In such cases,
where
there is no likelihood that the assessment will be paid, the
government
should petition to remit uncollectible special assessments at the
time
of sentencing.
In those cases where the convicted person (1) has no assets to
satisfy the assessment, (2) is not sentenced to a fine, restitution
or
other monetary penalty, and (3) is not sentenced to any
incarceration,
the Assistant United States Attorney who is present at sentencing
should
move for remission of the assessment at that time pursuant to 18
U.S.C.
§ 3573. The absence of assets can be evidenced by the need for
court
appointed counsel or based on information from the border patrol in
the
case of an undocumented alien.
In compliance with the Mandatory Victims Restitution Act of 1996, Pub.
L. 104-132, Section 209, on July 24, 1996, the Attorney General issued the
following guidelines for enforcement of restitution orders, which are
restated in Article V of the Attorney General Guidelines for Victim and
Witness Assistance 2000:
Orders of restitution imposed under the Mandatory Victims
Restitution Act must be enforced to the fullest extent of the law.
Restitution owed to victims of crimes is a critical part of the
criminal
judgment. The Financial Litigation Units in the United States
Attorneys'
offices should take all steps possible to help ensure that this
money is
collected and that victims of crime are fully compensated for their
losses. All prosecutors and Victim-Witness Coordinators must
support the
mission of criminal debt collection.
Absent a court-ordered stay on appeal, a defendant who fails to
pay
restitution that is due immediately or defaults on a payment plan
should
be aggressively pursued for collection of the debt. In anticipation
of
an eventual revision to USAM § [3-12.400], the following
guidelines
should be followed:
In order to guarantee enforcement to the fullest extent of the
law,
a lien should be filed by the United States in all cases where
restitution is ordered and not immediately paid. Additionally,
discovery
of the debtor's assets should be pursued, including, but not
limited to:
reviewing the presentence report for asset information; requesting
a
financial statement from the debtor or completed interrogatories
regarding assets and liabilities or, in the case of an incarcerated
debtor, consulting with the assigned case manager regarding assets
and
liabilities; inquiring whether any victims have information about
the
debtor's assets; requesting asset information from the prosecutor
and
case agent; and, researching on-line property locator services
available
to the FLU.
In cases where the United States Attorney's office has reason
to
believe that the debtor might have assets based on the inquiries
and
research set forth above or other information, a credit report
should be
obtained and, where practicable, the deposition of the defendant or
other parties who may have knowledge of the debtor's assets should
be
conducted.
If it is discovered that a defendant who has defaulted on
payment of
restitution has the ability to pay, a default hearing under 18
U.S.C.
3613A, or resentencing pursuant to 18 U.S.C. 3614, should be
considered.
All enforcement remedies, including those under the Federal Debt
Collection Procedures Act, 28 U.S.C. §§ 3001-3308, should
be
pursued, including garnishment of the debtor's wages, execution of
the
debtor's nonexempt property and filing of a fraudulent transfer
action.
Enforced collection remedies should only be used against
debtors
under the supervision of the probation office after consultation
with
that office. Additionally, while the new law provides the
government the
ability to reach substantial assets of a criminal defendant, the
government must be cautious about seizing a debtor's residence if
family
members would be left homeless. For this reason, approval of the
United
States Attorney is required prior to executing upon a criminal
debtor's
residence. USAM § 3-10.540.
Financial Litigation Unit efforts to collect restitution for
nonfederal crime victims should be pursued at least as aggressively
as
the collection of fines and restitution to federal agencies. These
efforts can, however, be minimal if the victim is willing and
financially able to pursue collection in its own behalf. In many
cases,
corporate or nonfederal government victims may be in a better
position
to pursue enforcement than the United States Attorney's office and
they
should be encouraged to do so, thus freeing up resources in the
United
States Attorney's office to concentrate on other needy victims.
| November 2000
| USAM Chapter 3-12
|