Acme Poultry Corporation v. United States, No. 5283.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: PARKER, SOPER, and DOBIE, Circuit
• Citation: 146 F.2d 738
• Parties: ACME POULTRY CORPORATION v. UNITED STATES.
• Docket Number: No. 5283.
• Decision Date: 21 December 1944

146 F.2d 738 (1944)

ACME POULTRY CORPORATION
v.
UNITED STATES.

No. 5283.

Circuit Court of Appeals, Fourth Circuit.

Argued November 13, 1944.

Decided December 21, 1944.

Writ of Certiorari Denied March 26, 1945.

Milton E. Sahn, of New York City (Alfred C. McKenzie, of Brooklyn, on the brief), for appellant.

Thomas J. Kenney, Asst. U. S. Atty., of Baltimore, Md. (Bernard J. Flynn, U. S. Atty., of Baltimore, Md., and Gordon L. Eakle, Sp. Asst. to Atty. Gen., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Writ of Certiorari Denied March 26, 1945. See 65 S.Ct. 865.

PARKER, Circuit Judge.

This is an appeal from an order denying a motion to reduce, to the amount originally imposed, a fine which had been increased during the term. The appellant, Acme Poultry Corporation, and its president, one Louis Spatz, were indicted in three cases in the United States District Court at Baltimore. A fourteen count indictment in one of the cases charged as many different violations of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. The indictments in the other two cases were single count indictments charging conspiracy to violate the act. On November 8, 1943, both defendants pleaded guilty to all the charges and each was fined $25,000 in the case involving substantive violations and $10,000 in each of the conspiracy cases, or a total of $45,000 for each defendant. Later in the same day, the attorney representing both defendants, after failing in his effort to have the fines reduced, requested the court to reduce the fine on the individual defendant by $30,000

146 F.2d 739

and to increase it on the corporation by a corresponding amount, stating that this would be fairer to all parties concerned since other officers and stockholders of the corporation had profited from its operations. The court acceded to this request and directed that the fines be re-allocated accordingly. In making the re-allocation, a fine of $5,000 was entered against the individual defendant in each case, and the fine against the corporate defendant in the case charging substantive violations was increased to $50,000 and the fine in one of the conspiracy cases to $15,000

The individual defendant promptly paid the $15,000 in fines imposed upon him pursuant to the agreement; but the corporate defendant has not yet paid the $75,000 imposed upon it, although its attorney, in order to obtain the re-allocation, promised that it would be paid promptly. On July 12, 1944, the corporate defendant, having paid nothing whatever on the fines imposed on it, moved that they be reduced to the amount originally imposed, on the ground that the court was without power to increase them, and on the further ground that the increased fines were imposed on the corporate defendant in the absence of its officers. An additional ground in the conspiracy case was that the fine of $15,000 exceeded the legal limit that might be imposed. The court reduced the increased fine in the conspiracy case to $10,000, as being the legal limit that might be imposed in that case, but denied any further relief and the corporate defendant has appealed.

We think that there is nothing whatever in appellant's contentions. The change in the fines was made not only at the same term but during the same day that they were first imposed; and it was made in the presence of counsel for the corporate defendant and at his request. No part of the fines originally assessed against the corporation had been paid at the time and there was no reason why the court should not make any change in them that seemed proper. The general rule, of course, is that the trial court has power to change a sentence at any time during the term at which it is imposed. The only limitation upon this power...