Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am pleased to introduce the ``Preserving Crime Victims' Restitution Act of 2006.'' The Act would clarify the rule of law and procedures that should be applied when a criminal defendant, such as former Enron CEO Kenneth Lay, dies after he has been duly convicted, but before his appeals are final. I am pleased that Senator Sessions is joining me as a cosponsor in introducing this bill. We have worked closely with the Department of Justice in crafting this legislation, and have used much of DOJ's transmitted language. DOJ fully supports the principles contained in this bill, and has indicated its support for this bill's efforts to fix this problem now to ensure that, despite a defendant's death, hard-won convictions are preserved and restitution remains available for the victims of crime. This bill that I introduce today would do the following: Establish that, if a defendant dies after being convicted of a Federal offense, his conviction will not be vacated. Instead, the court will be directed to issue a statement stating that the defendant was convicted (either by a guilty plea or a verdict finding him guilty) but then died before his case or appeal was final. It would codify the current rule that no further punishments can be imposed on a person who is convicted if they die before a sentence is imposed or they have an opportunity to appeal their conviction. It would clarify that, unlike punishment, all other relief, such as restitution to the victims, that could have been sought against a convicted defendant can continue to be pursued and collected after the defendant's death. It would establish a process to ensure that after a person dies, a representative of his estate can stand in the shoes of the defendant and challenge or appeal his conviction if they want, and can also secure a lawyer--either on their own or by having one appointed, and If the Government had filed a criminal forfeiture action--in which it had sought to reach the defendant's assets that were linked to his crimes--the Government would get an extra 2 years after the defendant's death to file a parallel civil forfeiture lawsuit so that it could try to recover those same assets in a different, and traditionally-accepted manner. The need for this legislation was vividly demonstrated last month. On October 17, 2006, U.S. District Judge Sim Lake, of the Southern District of Texas, wiped clean the criminal record of Enron founder Kenneth Lay, even after a jury and judge had unanimously found him guilty of 10 criminal charges, including securities fraud, wire fraud involving false and misleading statements, bank fraud and conspiracy. That decision was not based on an error in the trial or any suggestion of unfairness in the proceedings. Instead, it was simply based on the fact that Mr. Lay died before his conviction had been affirmed on appeal, under a common law rule known as ``abatement.'' In other words, this order essentially means that Mr. Lay is ``convicted but not guilty''--``innocent by reason of his death.'' Judge Lake granted this dismissal even in the face of DOJ Enron Task Force filings, which noted how Mr. Lay's conviction ``provided the basis for the likely disgorgement of fraud proceeds totaling tens of millions of dollars.'' In other words, the dismissal means that millions dollars, that the jury found were obtained by Mr. Lay illegally, will now remain untouched in the Lay estate. And everyone agrees that former Enron employees and shareholders will now find it much harder to lay claim to these ill-gotten gains held by Mr. Lay's estate, because they will be unable to point to his criminal conviction as proof of his wrongdoing. I do not fault Judge Lake for issuing this order. He made it clear that he was simply following the binding precedent issued in 2004 by the full U.S. Court of Appeals for the 5th Circuit, in a case called United States v. Estate of Parsons. But as I noted in a letter I wrote to Attorney General Gonzales on October 20, 2006, the Fifth Circuit's Parsons decision goes far beyond the traditional rule of law in this area. While the common-law doctrine of abatement has historically wiped out ``punishments'' following a criminal defendant's death, the Supreme Court has never held that it must also wipe out a victim's right to other forms of relief such as restitution, which simply compensate third parties who were injured by criminal misconduct. As the six dissenters in Parsons noted, the majority's `` `finality rationale' is a completely novel judicial creation which has not been embraced or even suggested by . . . other courts.'' The Third and Fourth Circuits, for example, have expressly refused to take this position, and upheld a restitution order after a criminal defendant's death. The Parsons decision was remarkable in several other respects, including the fact that (as the dissenters noted), its new rule of law was apparently inspired by a single law review article. That academic piece boldly claimed that a criminal defendant's right of appeal is ``evolving into a constitutional right,'' and suggested that a conviction untested by appellate review is unreliable and illegitimate. This notion runs contrary to the traditional rule applied in virtually every other context--where a jury's findings are typically respected under the law. Of course a defendant is presumed innocent at the outset of his case. After a jury has deliberated and unanimously issued a formal finding of guilt, however, that presumption of innocence no longer stands. The Parsons ``finality'' rationale raises the absurd possibility that even a defendant who fully admitted his wrongdoing and pleaded guilty, but who then died while an appeal of his sentence was pending, could have his entire criminal conviction erased. In fact, this has already occurred, in the 1994 case of United States v. Pogue, where the D.C. Circuit ordered the dismissal of a conviction of a defendant whose appeal was pending--even though the docketing statement had said that the defendant intended to challenge only his sentence, and not his underlying conviction. I have urged the Attorney General to continue to fight for Enron victims by appealing Judge Lake's dismissal to the Supreme Court. There, he should ask for a resolution of this split in the law between these Circuits, so that he can try to get the Parsons rule overturned. Unfortunately, the Justice Department has been noncommittal--it refuses to say if it will appeal the Ken Lay dismissal or not, even with the filing deadline fast approaching. In the meantime, rather than remaining silent on this issue, and hoping that the Attorney General will appeal the Lay case as he should, I believe the time has come for Congress to take action. While I have no desire for our Government to punish a criminal defendant who dies, the calculation should be different when we are determining how to make up for harm suffered by other individuals. There is surely a legal and moral basis for not punishing the dead. But there is also, more importantly, a legal and moral basis for defending the living. The legislation that I introduce today codifies that distinction. This legislation offers a fair solution and orderly process in the event that a criminal defendant dies prior to his final appeal. Enron's collapse in 2001 wiped out thousands of jobs, more than $60 billion in market value, and more than $2 billion in pension plans. When America's seventh largest company crumbled into bankruptcy after its accounting tricks could no longer hide its billions in debt, countless former Enron employees and shareholders lost their entire life savings after investing in Enron's 401(k) plan. Many of these Enron victims have been following closely the years of preparation by the Enron Task Force, and the four-month jury trial and separate one-week bench trial, hoping to finally recover some restitution in this criminal case. And despite Mr. Lay's vigorous efforts to avoid being held accountable for his actions, a conviction was finally secured. Yet now these people have essentially been victimized again. They will be forced to start all over in their efforts to get back some portion of the pension funds on which they expected to subsist, and the other hard-earned assets that will remain beyond their reach, despite the unanimous, hard-fought verdicts finding Mr. Lay guilty of all ten counts with which he had been charged. The time has come for Congress to end this injustice--hopefully, by acting quickly enough to assist these Enron victims, but in any event in a way that will prevent this type of injustice from ever happening again in the future. I urge my colleagues to support this legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am looking for the chairman on this bill. I know she has no objections. I request a voice vote on the amendment.

Mrs. FEINSTEIN. Mr. President, if I might, I thank the chairman, my friend, the Senator from Texas. We usually have a very easy time with this bill. There are usually not many amendments to this bill. But perhaps because this is the first vehicle to move a number of items, they seemed to come up this afternoon. I think the chairman has shown great leadership and flexibility. Sometimes they go together and sometimes they do not, but she has possessed both today. I am very grateful, and the Democratic side is very grateful for it as well. This is a good bill. It is a bipartisan bill. It takes good care of veterans. It eliminates the problem of financing that we had last year. Overall, it is an excellent bill. I am very proud to have worked with the chairman. I thank her. I thank the majority staff. And, of course, I thank my staff, of which Christina Evans is sitting on my left, and B.G. Wright and Chad Schulken back in the box. It has been a good day. At least we have accomplished a substantial bill. I yield the floor.

Mrs. FEINSTEIN. Mr. President, I thank Senator Salazar for his dedication to our Nation's veterans and to the effort to provide comprehensive care to blinded veterans in particular. I certainly understand the devastating impact that severe eye injuries have on the lives of service men and women returning from combat and agree we must work to ensure that our efforts in Congress keep pace with the rising costs of providing care to these men and women and with the growing numbers of service members returning home in need of such care. The language contained in this report is strong, and I am confident it will help to push the VA in the right direction as we strive to provide care for blinded veterans in the most comprehensive and efficient way possible. I remain committed to that effort and to working with my colleagues in both parties to see that blinded veterans receive the best services our government can provide.

Mrs. FEINSTEIN. I share my home State colleague's concern for the Child Development Center at Beale. As the ranking member of the Subcommittee on Military Construction and Veterans Affairs, I, too, believe that it is critical to fund the CDC at Beale. The Air Force has included $14 million in its Future Years Defense Plan for fiscal year 2008, which clearly indicates the Air Force intends to include this project for funding in the President's budget request. I strongly urge the Air Force to retain this project in its projection for funding in next year's request. funding for blinded veterans' services

Mrs. FEINSTEIN. Mr. President, I move to reconsider the vote.

Mrs. FEINSTEIN. I applaud the initiative of the residents of Yellowstone County, and I can assure the distinguished Senator from Montana that I will work in conference on this bill to include language in the Statement of Managers directing the Secretary of the Department of Veterans Affairs to review the status and progress of the Yellowstone County National Veterans Cemetery project and report his findings back to Congress.

Mrs. FEINSTEIN. What is being done to address this need?

Mrs. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 5146

Mrs. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 5138, as Modified

Mrs. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 5130, as Modified

Mrs. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 5128, as Modified

Mrs. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 5135

Mrs. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 5127

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I will be very interested to look at the bill, and I thank you very much for this dialog. And this completes my questions. Thank you.

Mrs. FEINSTEIN. Except what you are doing is effectively exempting, then, a call from outside into the United States because of the change in technology.

Mrs. FEINSTEIN. I thank the Senator. He has been a very distinguished chairman of the committee. This is an issue in which, as a member of the Intelligence Committee and Judiciary Committee, I have had an intense interest. The Senator from Pennsylvania recognizes that. I appreciate that. I am unsure whether this bill is for the purpose of judicial review of the President's article II authority--I think I understand what the Senator is doing. He is essentially exempting all those calls which come into the United States, not calls from point A to point B in the United States. I think that bears further discussion, but I trust no action will be taken on this bill in this session but that the Senator from Pennsylvania is submitting it as a marker for next year.

Mrs. FEINSTEIN. I thank the chairman. I would like to look very closely at this bill. I am very reluctant to move right now. You have mentioned the case percolating up through the courts now. I am really unsure why passage of this bill now would achieve anything. It seems to me it would be better to wait and see what the court does. I would appreciate your response to that.

Mrs. FEINSTEIN. Again, through the Chair, if the Senator will put up with this for a moment more, is that to handle the switching issue, or would this apply to all calls coming in from outside the United States are exempt?

Mrs. FEINSTEIN. If I may, a second question: Will this bill allow the President to use his plenary authority to wiretap outside of FISA, first, and secondly, will it allow for program authority for wiretaps?

Mrs. FEINSTEIN. Mr. President, I was trying, as the Senator from Pennsylvania spoke, to figure out exactly what bill it is he is speaking of. I gather this is his bill, not our bill, on which he is adding some of our bill's provisions, but he leaves out the critical part, which is reinforcing the exclusive authority of FISA; is that correct?

Mrs. FEINSTEIN. Through the Chair.

Mrs. FEINSTEIN. Mr. President, will the Senator yield for a question?

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I will be very interested to look at the bill, and I thank you very much for this dialog. And this completes my questions. Thank you.

Mrs. FEINSTEIN. Except what you are doing is effectively exempting, then, a call from outside into the United States because of the change in technology.