3-12.100
Role of the Executive Office for United States Attorneys
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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.
[cited in
EOUSA Resource Manual 111]
3-12.200
Responsibilities of the United States Attorneys
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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.
[cited in
EOUSA Resource Manual 112]
3-12.210
Appearance Bond Forfeiture Judgments
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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.
3-12.220
Asset Forfeiture Judgments
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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.
3-12.300
Enforcement of Criminal Debts During Appeal
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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.
3-12.320
Enforcement of Criminal Debts During Incarceration
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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.
3-12.330
Fines and Restitution Imposed as Conditions of Probation
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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.
3-12.340
Liens Against the Defendant's Property
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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.
[updated December 1998]
[cited in USAM 3-12.400]
3-12.350
Enforcement Proceedings
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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).
3-12.360
Waiver of Interest and Penalties
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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.
3-12.400
Suspense of Criminal Collection Activity
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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.
[updated July 1999]
3-12.411
Suspense of Criminal Fines—Deportation
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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.
3-12.412
Suspense of Criminal Fines—Payment is Not Immediate
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When the court orders other than immediate payment of a criminal debt,
the debt should be suspended until due.
3-12.413
Suspense of Criminal Fines—Stay of Enforcement
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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.
3-12.414
Suspense of Criminal Fines—Criminal Debt is Uncollectible
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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.
3-12.415
Suspense of Criminal Fines—Defendant is Unlocatable
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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.
3-12.420
Approval Necessary to Suspend Collection Action
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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.
[updated October 1998]
3-12.510
Remission—Uncollectible Fines
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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.
[updated October 1998]
[cited in USAM 3-12.411]
3-12.520
Remission of Special Assessments
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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.
3-12.600
Efforts for Victims of Crime
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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.
[updated November 2000]
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