887 F.2d 1208 (3rd Cir. 1989), 88-5947, United States v. Atlantic Disposal Service, Inc.

Docket Nº:88-5947 to 88-5952.
Citation:887 F.2d 1208
Party Name:UNITED STATES of America v. ATLANTIC DISPOSAL SERVICE, INC., Appellant. UNITED STATES of America v. Alvin H. WHITE II, Appellant. UNITED STATES of America v. Charles J. CARITE, Appellant.
Case Date:October 11, 1989
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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887 F.2d 1208 (3rd Cir. 1989)

UNITED STATES of America

v.

ATLANTIC DISPOSAL SERVICE, INC., Appellant.

UNITED STATES of America

v.

Alvin H. WHITE II, Appellant.

UNITED STATES of America

v.

Charles J. CARITE, Appellant.

Nos. 88-5947 to 88-5952.

United States Court of Appeals, Third Circuit

October 11, 1989

Argued June 8, 1989.

Raymond A. Brown (argued), Brown, Brown and Kologi, and Alan Dexter Bowman, P.A., Newark, N.J., for appellants.

Charles F. Rule, Asst. Atty. Gen., Kenneth G. Starling, Deputy Asst. Atty. Gen., John J. Powers III, Atty., Laura Heiser, Atty. (argued), Robert J. Wiggers, Atty., Dept. of Justice, Washington, D.C., and Willard Smith, Atty., Robert E. Connoly, Atty., Dept. of Justice, Philadelphia, Pa., for appellee.

Before BECKER, STAPLETON and GARTH, Circuit Judges.

OPINION

BECKER, Circuit Judge.

Alvin H. White II, Charles J. Carite, and Atlantic Disposal Service, Inc. ("ADS"), a trash collection company that White and Carite control, appeal the sentences imposed upon them after they pled guilty to a scheme to defraud the United States by submitting rigged bids for trash collection at Fort Dix, New Jersey. The negotiated pleas, entered on December 8, 1987, after six days of trial in the district court for the district of New Jersey, were to two counts

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of conspiracy to restrain trade in violation of the Sherman Antitrust Act, 15 U.S.C. Sec. 1 (1982). The first count, contained in indictment No. 87-77, involved a scheme to rig bids in 1983 and 1984; the second count, contained in indictment No. 87-76, involved a scheme to rig bids in 1986. 1 The district court spared White and Carite prison terms, but fined each man $350,000 and ordered both to perform community service. 2 ADS was fined a total of $2,000,000. The district court also determined, pursuant to section 2 of the Criminal Fine Enforcement Act of 1984 ("CFEA"), Pub.L. No. 98-596, Sec. 2, 98 Stat. 3134, 3134 (1984) (codified at 18 U.S.C. Sec. 3565(b)(2) note (Supp. V 1987)), that the defendants were required to pay interest on the $100,000 fine imposed for the 1986 bid rigging scheme, indictment No. 87-76. No interest was assessed on the fine imposed in No. 87-77 because, as explained below, section 2 of the CFEA applies only to crimes committed after December 31, 1984. 3

We find the defendants' principal contentions on appeal--that the sentences violated the eighth amendment's proportionality requirement as expounded in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and that the district court abused its discretion in denying their Rule 35 motion for reduction of sentence--to be legally frivolous. 4 The more difficult question, which we will address in this opinion, is whether the district court erred in imposing interest on the fines arising out of the 1986 bid rigging scheme.

Plaintiffs contend that the CFEA interest provision (section 2) is inapplicable to them because it was repealed as of November 1, 1987 by the Sentencing Reform Act ("SRA"). For the reasons that follow, we hold that section 2 of the CFEA has not been repealed in full by the SRA but continues to apply to all crimes committed between December 31, 1984 (the effective date of section 2 of the CFEA) and November 1, 1987 (the effective date of the SRA). Because the criminal scheme with respect to which interest was imposed here took place between those two dates, we will affirm the judgment of the district court imposing interest. As we explain below, however, and at the suggestion of the government, we will remand with instructions to vacate fines erroneously imposed against White and Carite on the count involving the 1983 and 1984 contracts (No. 87-77) because those fines were imposed pursuant to a statutory provision that was not operative during the time the crimes were committed on those counts.

I. Statutory History

On October 12, 1984, Congress enacted the SRA. While the Act is best known for its attention to disparity in sentencing, it was a product of extensive research that revealed numerous inadequacies in the federal criminal justice system, one of which was the criminal fine collection system. Prior to the SRA there was no provision for collecting interest on criminal fines. The

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relevant fine provision in effect at that time read as follows:

[I]n all criminal cases in which judgment or sentence is rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, such judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases. Where the judgment directs imprisonment until the fine or penalty imposed is paid, the issue of execution on the judgment shall not discharge the defendant from imprisonment until the amount of the judgment is paid.

18 U.S.C. Sec. 3565 (1982) [hereafter "old section 3565"].

In drafting the SRA, Congress tried to bolster federal fine collection mechanisms. The most significant innovations were contained in section...

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