Mitchell v. Fiore

• Decision Date: 12 December 1972
• Docket Number: No. 72-1232,72-1233.,72-1232
• Citation: 470 F.2d 1149
• Parties: James P. MITCHELL, Secretary of Labor, United States Dept. of Labor v. William FIORE, Ind. and d/b/a Fiore Trucking Company and William Fiore Contracting Company, Appellant. The UNITED STATES v. In re William FIORE, Individually and doing business as Fiore Trucking and William Fiore Contracting Company, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

470 F.2d 1149 (1972)

James P. MITCHELL, Secretary of Labor, United States Dept. of Labor v. William FIORE, Ind. and d/b/a Fiore Trucking Company and William Fiore Contracting Company, Appellant.

The UNITED STATES v. In re William FIORE, Individually and doing business as Fiore Trucking and William Fiore Contracting Company, Appellant.

Nos. 72-1232, 72-1233.

United States Court of Appeals, Third Circuit.

Argued September 8, 1972.

Decided December 12, 1972.

COPYRIGHT MATERIAL OMITTED

Harold Gondelman, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa., for appellant.

Jay C. Waldman, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Before VAN DUSEN, ALDISERT and HUNTER, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Defendant appeals from the sentence and judgment filed February 2, 1972, in which he was ordered to pay various dollar amounts as fines and costs and to be imprisoned for 60 days, or for 30 days if he paid the "civil judgments and costs" within 30 days. The sentence and judgment are based on the district court's findings of fact and conclusions of law reported in 337 F.Supp. 972 (W.D.Pa. 1972). The district court decided that defendant was in civil and criminal contempt of an injunction previously issued against him pursuant to section 17 of the Fair Labor Standards Act of 1938, 29 U.S.C. § 217 (1970). We have concluded that the district court's holding that defendant violated the injunction must be affirmed and that civil and criminal sanctions are appropriate, but, for the reason given below, we modify the financial penalties imposed by the district court.

Defendant is in the trucking business and his customers include United States Steel and Jones & Laughlin Steel Co. On November 11, 1959, he consented to an injunction that he be restrained from violating sections 15(a)(2) and 15(a)(5) of the F.L.S.A. by failing to pay overtime compensation as required by section 7 and by failing to keep records in accordance with section 11(c) of the F.L.S.A. and 29 C.F.R. 516. On April 19, 1962, defendant consented to the entry of a decree finding him guilty of civil contempt of the 1959 injunction, requiring restitution of wages wrongfully withheld, requiring payment of the Government's costs of investigation, and broadening the 1959 injunction to require compliance with the minimum wage provisions of section 6 of the F.L. S.A. (29 U.S.C. § 206). Again on April 25, 1965, defendant was found to have violated the 1959 injunction as amended. Held in criminal and civil contempt, he was ordered to pay a punitive fine of $1,000., a compensatory fine of $1,000. covering the costs of investigation, and court costs, all in addition to the restitution of back wages of $15,000. which he made at that time.

The present appeal involves yet another violation of the above-mentioned injunction. On November 3, 1971, the Government petitioned the district court again to find defendant in civil and criminal contempt, alleging that he had violated the minimum wage, overtime, and record-keeping provisions of the injunction. The district court issued an order on November 5 that defendant show cause why he should not be found guilty of criminal and civil contempt. A trial to the court on these charges was held on January 27, 28, and 31, 1972. At the beginning of the trial, the Government made clear that it was proceeding under 18 U.S.C. § 401(3) (1970) in submitting proofs on the issue of criminal contempt.¹

Defendant's employees would put the time they worked each day on slips or time cards and submit these to defendant. There was uncontradicted evidence that defendant, upon being approached by Labor Department compliance officer McFeele, had retained these slips for only the previous three months, not for the requisite two years, see 29 C.F.R. 516.6(a)(1) (1972). The Government also introduced the testimony of nine former employees of defendant that he made a practice of wrongfully reducing the amount of time the drivers had indicated on the time slips and of failing to compensate drivers for time spent in preparing trucks for use and in driving trucks to and from their assigned work locations. This reduction of time would have made defendant's payroll records inadequate under 29 C.F.R. § 516.-2(a)(7) (1972); and the failure to pay drivers for this type of preparation and transportation time would have violated the minimum wage and overtime provisions of the F.L.S.A. McFeele testified that, based on interviews with 20 to 30 employees, he estimated the average time not compensated for was 1 ½ hours per man per shift; applying this estimate to the number of employees and amount of time shown on the payroll records defendant did keep, McFeele arrived at the figure of $31,364.57 for the back wages due the 79 employees. Defendant denied all the Government's contentions except that he conceded he had only retained the time slips for the past three months. The district court concluded that the Government had established its contentions "by clear and convincing evidence and beyond a reasonable doubt" (337 F.Supp. at 974).

The district court entered judgments against defendant in the amounts of $31,364.57 for the benefit of the employees, $2,000. to cover the Government's costs of investigation, and $10,-000. as "a remedial fine . . . as punishment for the civil contempt. . . ." The court also ordered defendant to pay court costs. Finally, the court sentenced the defendant to imprisonment as mentioned above.²

Defendant contends that the district court erred in its findings. On both the civil and criminal sides, our review of the record shows that the district court holding, that the Government proved its case by, respectively, clear and convincing evidence and beyond a reasonable doubt, was fully supported.³ For the scope of our review, see United States v. Delerme, 457 F.2d 156, 160 (3d Cir.1972).

Defendant focuses his objections upon the procedure followed by the district court. A criminal contempt proceeding need not, as he suggests, be initiated by indictment.⁴ The order to show cause⁵ furnished him adequate notice under F.R.Crim.P. 42(b) and thus met the requirements of due process.⁶ We have concluded that the proper procedures were observed in regard to the criminal contempt, and it was permissible for the district court to try the criminal and civil contempts together.⁷ Since no disrespect to or criticism of, the trial judge was involved, see F.R. Crim.P. 42(b), it was proper that he try such contempt charges despite his having presided over defendant's three earlier trials.⁸

The defendant also argues that he was denied his right to a jury trial.⁹ There is, of course, no such right in the trial of a civil contempt charge. In Cheff v. Schnackenberg, 384 U.S. 373, 379-380, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), the Supreme Court held that a person sentenced to six months' imprisonment for criminal contempt had no right to a jury trial because his offense was "petty." 18 U.S.C. § 1(3) (1970), which the Court referred to in Cheff, defines as petty any offense whose penalty does not exceed six months' imprisonment or a $500. fine or both. In the present case, the $10,000. fine, although labled by the district court as "remedial," was neither coercive nor compensatory; rather, it was clearly punitive. Were we to let it stand defendant's contempt would not be petty and he might have been wrongly deprived of a jury trial. However, for the reason discussed below, we will vacate the $10,000. punitive fine. It could be maintained that, notwithstanding our action, defendant's offense, having been punished initially with a $10,000. fine, is forever branded as being not petty and thus warranting a jury trial. Two factors persuade us to the contrary. First, the district court viewed the criminal contempt as petty; this is indicated by the court's mistakenly denominating the fine as "civil" and "remedial." See Philipps v. United States, 457 F.2d 1313 (8th Cir.1972). Second, in applying the proposition in Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969), that the severity of the penalty actually (as opposed to potentially) imposed best measures the seriousness of the offense we think that the sentence ultimately imposed is the sentence that is relevant. We note that we would not be the first Court of Appeals that has reduced a contempt sentence so as to comply with Cheff, rather than remand for jury trial. See Mirra v. United States, 402 F.2d 888 (2d Cir.1968).

Finally, in addition to challenging the correctness of the district court findings and the procedures, defendant contends that the district court's judgment and sentence were defective. He does not challenge the civil contempt fines concerning back wages, investigation costs, and court costs, except to suggest that they cannot be handed down in combination with sanctions for criminal contempt. The suggestion is incorrect. See Penfield Co. v. SEC, 330 U.S. 585, 593-594, 67 S.Ct. 918, 91 L.Ed. 1117 (1947).

Defendant directs at the sentence for criminal contempt three attacks. First, he calls our attention to section 216(a) of the F.L.S.A., which provides for imprisonment of up to six months for all violations of the Act except the first such violation. Had the Government proceeded against him under section 216(a), he would not be liable to imprisonment, never having been convicted a prior time under that section. According to defendant, to permit his imprisonment under 18 U.S.C. § 401(3) (1970) for violating the injunction¹⁰ would subvert the scheme of section 216(a) and rob him of constitutional rights.¹¹ This line of argument has been accepted by some courts,¹² but it was squarely rejected in the recent case of United States v. Fidanian, 465 F.2d 755 (5th Cir.1972).¹³ There the court reasoned, first, that such a limitation on the power of the federal courts to punish violations of their own orders — which...