|9-143.100||Role of the Executive Office for United States Attorneys|
|9-143.200||Responsibilities of the United States Attorneys|
|9-143.205||Prejudgment Coordination among Divisions within the U.S. Attorneys’ Offices|
|9-143.210||Appearance Bond Forfeiture Judgments|
|9-143.220||Asset Forfeiture Judgments|
|9-143.300||Enforcement of Criminal Debts During Appeal|
|9-143.320||Enforcement of Criminal Debts During Incarceration|
|9-143.330||Fines and Restitution Imposed as Conditions of Probation and Supervision|
|9-143.340||Liens Against the Defendant's Property|
|9-143.360||Waiver of Interest and Penalties|
|9-143.400||Suspense of Criminal Collection Activity|
|9-143.415||Suspense of Criminal Fines/Restitution—Defendant is Unlocatable|
|9-143.520||Remission of Special Assessments|
|9-143.600||Efforts for Victims of Crime|
9-143.100 - Role of the Executive Office for United States Attorneys
The Executive Office for United States Attorneys (EOUSA) is responsible for establishing policies and procedures for the collection of criminal monetary penalties which includes restitution, fines, assessments, penalties, interest, bail bond forfeitures, and court costs in criminal cases. See 28 C.F.R. §§ 0.22 and 0.171.
9-143.200 - Responsibilities of the United States Attorneys
The United States Attorneys are responsible for the enforcement of judgments, fines, penalties and forfeitures exceeding $100 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 monetary penalties 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 a Financial Litigation Coordinator—Assistant United States Attorney to be responsible for activities related to the satisfaction, collection, or recovery of judgments, fines, restitution, penalties, assessments, court costs and bail bond forfeitures. See 28 C.F.R. § 0.171.
9-143.205 – Prejudgment Coordination among Divisions within the U.S. Attorneys’ Offices
The collection of criminal debts owed to victims of crime and the federal government is a shared responsibility among criminal AUSAs, the Financial Litigation/Asset Recovery Unit, Asset Forfeiture Unit, and victim-witness professionals. Effective prejudgment coordination and collaboration is essential to maximizing the United States Attorney’s office’s ability to seek restitution, conduct asset investigations, and collect criminal monetary penalties.
Each United States Attorney’s office should have policies and procedures in place to ensure that early, effective and coordinated asset investigations and recovery are a routine part of every case involving victims. Asset recovery coordination should begin prejudgment – ideally at the very beginning of an investigation – particularly in criminal cases where restitution is likely to be ordered.
9-143.210 - Appearance Bond Forfeiture Judgments
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.
9-143.220 - Asset Forfeiture Judgments
If a money amount is stated in the Final Order of Forfeiture, but the defendant has no known assets, the Financial Litigation/Asset Recovery Unit does not open a collection case. Any monitoring of an asset forfeiture money judgment case must be done outside of the Department’s Consolidated Debt Collection System (CDCS).
9-143.300 - Enforcement of Criminal Debts During Appeal
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 enforce collections 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 an order requiring the defendant to deposit the entire judgment amount in the court’s registry (or in the alternative a bond to guarantee its payment), restraining the defendant from transferring or dissipating assets, or requiring the defendant to submit to an asset examination.
9-143.320 - Enforcement of Criminal Debts During Incarceration
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.
9-143.330 - Fines and Restitution Imposed as Conditions of Probation and Supervised Release
Collection procedures for fines and restitution that are conditions of probation or supervised release vary according to the statute under which they are imposed. Under 18 USC §§ 3563(b) and 3583(d), fines or restitution which are conditions of probation or supervised release, expire once probation or supervised release ends and the debt should be closed in CDCS.
Enforcement efforts on any debt owed by an offender under the supervision of the United States Probation and Pretrial Services should be coordinated with that office.
9-143.340 - Liens Against the Defendant’s Property
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, special assessments or restitution owed to a federal agency, a notice of lien must be filed if the total amount of those debts exceeds $2500. If the United States is unable to file a lien because it does not have the necessary information under state law, e.g., no known address, the FLU must document the file accordingly. Upon satisfaction of the debt, a Release of Lien should be filed or sent to the defendant.
9-143.350 - Enforcement Proceedings
The provisions of JM 4-11.500 relating to the enforcement of civil debts, also apply to criminal debt collection. In addition, 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). All enforcement activity undertaken should be recorded in CDCS by using the standardized enforcement activity codes established by EOUSA.
9-143.360 - Waiver of Interest and Penalties
Interest and late payment penalties for criminal fines and restitution may be waived by the United States Attorney or, consistent with 28 C.F.R. Ch 1, Pt 0, Subpart Y, App. Civil Division Directive 1-15, an Assistant United States Attorney who supervises other Assistant United States Attorneys who handle civil litigation, if reasonable efforts to collect them are not likely to be effective.
9-143.400 - Suspense of Criminal Collection Activity
Each United States Attorney’s office must establish written guidelines for approving the suspense of collections. Reasons for suspension include the deportation of the debtor, payment not immediately due under the judgment terms, stay of enforcement is granted by the court, the debt is determined to be uncollectible or only nominal payments can be collected, or the debtor is unlocatable.
Suspending a criminal debt has no effect upon the judgment’s validity. Whenever the Financial Litigation/Asset Recovery Unit learns that a defendant has the ability to make full or substantial payment on the debt and the defendant can be located, the criminal debt must be promptly reviewed for appropriate enforcement action.
See USAP 9-143.400.001 (Financial Litigation Priority Code System, Suspension of Collections, and Enforcement Codes).
9-143.415 - Suspense of Criminal Fines/Restitution—Defendant is Unlocatable
For unlocatable debtors whose debts are under $100,000, the district will use reasonable diligence in its skiptracing efforts to locate a current address or confirm the lack of a current address by obtaining a current credit report. For debts over $100,000, the district will undertake a minimum of three skiptracing efforts in an attempt to locate a new address. Skiptracing efforts include postal tracers, credit reports, asset investigations and internet searches.
9-143.510 - Remission—Uncollectible Fines
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/Asset Recovery 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 the debt in suspense. Restitution cannot be remitted under 18 USC § 3573.
9-143.520- Remission of Special Assessments
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 Assistant United States Attorney who is present at sentencing should move for remission of the special assessments pursuant to 18 U.S.C. § 3573 at the time of sentencing. 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.
9-143.600 - Efforts for Victims of Crime
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: 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/Asset Recovery 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. See 2011 Attorney General Guidelines for Victim and Witness Assistance, Art. V.H.1.
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 pursuant to the following guidelines:
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 non-federal 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 Financial Litigation/Asset Recovery Unit.
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 debtor 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, pensions, investment accounts and/or bank accounts, execution on the debtor’s nonexempt property and filing of a fraudulent transfer action. Please be aware that where debt collection proceedings are public court proceedings, the crime victim must be notified of those proceedings pursuant to the Crime Victims’ Rights Act, 18 U.S.C. 3771(a)(2).
Enforced collection remedies should be used against debtors under the supervision of the probation office only after consultation with that office. Additionally, while the law provides the government with the ability to reach substantial assets of a criminal defendant, the government must be cautious about seizing a debtor’s primary residenceto avoid the debtor’s family becoming a public charge. For this reason, approval of the United States Attorney is required prior to executing upon a criminal debtor’s primary residence. See JM 4-11.540.
Financial Litigation/Asset Recovery Unit efforts to collect restitution for nonfederal crime victims should be aggressively pursued. These efforts can, however, be minimal if the victim is willing and financially able to pursue collection on 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 victims.