U.S. v. Blue Sea Line, No. 76-1565

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GOLDBERG, SIMPSON and FAY; GOLDBERG
• Citation: 553 F.2d 445
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. BLUE SEA LINE et al., Defendants-Appellees.
• Docket Number: No. 76-1565
• Decision Date: 06 June 1977

Page 445

553 F.2d 445 UNITED STATES of America, Plaintiff-Appellant,
v.
BLUE SEA LINE et al., Defendants-Appellees. No. 76-1565. United States Court of Appeals,
Fifth Circuit. June 6, 1977.

Page 446

Robert W. Rust, U. S. Atty., Miami, Fla., Paul G. Gorman, Jr., Atty., Dept. of Justice, Crim. Div., Philip Wilens, Acting Chief, Gov. Reg. & Labor Sect., Crim. Div., Washington, D. C., for plaintiff-appellant.

Michael S. Tarre, Pearson & Josefsberg, P. A., Miami, Fla., George F. Galland, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before GOLDBERG, SIMPSON and FAY, Circuit Judges.

GOLDBERG, Circuit Judge:

The Government appeals from the dismissal of an October 1975 indictment charging that appellee common carriers had paid rebates in violation of 46 U.S.C. § 815, second. In 1972, subsequent to the alleged violations but over three years prior to the return of this indictment, Congress repealed the criminal penalties for violations of this and other provisions of the Shipping Act of 1916, 46 U.S.C. §§ 801 et seq. Civil penalties replaced these criminal sanctions. The sole question on appeal is whether the Government could bring a criminal prosecution under the repealed statute for pre-repeal acts.

We agree with the district court that the 1972 legislation worked primarily a procedural, remedial change. The monetary sanction for violating § 815, second, remained constant, though after 1972 it was part of a civil rather than a criminal enforcement scheme. Consequently, that civil enforcement scheme had immediate applicability, and the alternative of criminal prosecution was not open to the Government at the time of this indictment's return. The district court therefore properly dismissed the charges.

I. Legislative Framework

The Capitol is the locus of all the facts relevant to the limited issue before us. Appellees are charged with violating one of the rebating prohibitions of 46 U.S.C. § 815. That substantive provision took the same form at the time of the alleged offenses, March 5, 1971 through August 7, 1972, that it does today:

It shall be unlawful for any common carrier by water . . .

Second. To allow any person to obtain transportation for property at less than the regular rates or charges then established and enforced on the line of such carrier by means of false billing, false classification, false weighing, false report of weight, or by any other unjust or unfair device or means.

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Throughout the period covered by the alleged offenses, violation of § 815, second, was a misdemeanor punishable only by a fine not to exceed $5000.

This criminal sanction was one of many then present in the Shipping Act of 1916. In 1972, however, Congress came to the conclusion that criminal prosecution had not proved a satisfactory means of enforcing the Act's regulatory designs. Criminal enforcement required the Federal Maritime Commission, charged with administering much of the Act, to investigate alleged violations, document them thoroughly, and refer them to the Department of Justice for prosecution. Documentation of the criminal charges was burdensome and time consuming, exacerbated by the necessity in every case for Justice Department review and evaluation. Congress felt that the delay between offense and trial had resulted in lighter penalties, depriving the Act of its intended deterrent effect. See S.Rep. No. 92-1014, 92nd Congress, 2d Sess., reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 3121, 3122 (hereinafter "S.Rep.").

Congress responded by adopting the Act of August 29, 1972, Pub.L. No. 92-416, § 1, 86 Stat. 653 (amending 46 U.S.C. §§ 801 et seq. (1970)). This legislation replaced many of the Shipping Act's criminal sanctions with civil penalties. The amendments also empowered the Maritime Commission to compromise the amount of any civil penalty. Act of August 29, 1972, Pub.L. 92-416, § 3; 86 Stat. 653.

By these changes Congress hoped to strengthen enforcement of the Shipping Act's commands. The government's reduced burden of proof in civil penalty proceedings would simplify documentation of violations, increasing the likelihood of successful prosecution and diminishing the delay between violation and penalty. Both these consequences would tend to increase the Act's deterrent impact without altering the substance of the Act's penalties. Additionally, by authorizing Maritime Commission compromise of civil penalties, the 1972 amendments provided a tool for reducing duplicative Justice Department review and expensive federal litigation. S.Rep., (1972) U.S.Code Cong. & Admin.News at pp. 3122-24.

Among the criminal penalties repealed and replaced by the 1972 amendments was the misdemeanor fine for violating the rebating prohibition at issue in the case at bar, 46 U.S.C. § 815, second. Violation of that provision as amended still results in a fine not to exceed $5000, the same dollar range carried by the repealed criminal sanction. The fine, however, now carries the label "civil" rather than "criminal". The 1972 shift from criminal to civil enforcement therefore changed in name only the penalty for violating § 815, second.

This legislative activity forms the background to the question before this court whether after the shift to civil enforcement the Government retained the prerogative to levy criminal prosecutions for acts antedating the 1972 amendments.

II. The Reach of the Saving Clause: Penalty v. Procedure

The common law recognized a presumption that repeal of a criminal statute abated all prosecutions which had not reached final disposition. Abatement followed both unequivocal repeals and repeals accompanied by re-enactments, even where the re-enactment increased the penalty. See Warden v. Marrero, 417 U.S. 653, 660, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). Because the ex post facto clauses of the Constitution forbid prosecution for pre-repeal acts under any re-enactment increasing the penalty, importing the common law abatement doctrine meant that legislative inadvertence could result in a haven from prosecution for an occasional offender. See Comment, Today's Law and Yesterday's Crime: Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 121-27 (1972).

To eliminate from the federal system the pitfalls of abatement, Congress passed a general saving clause, which in its present version is found at 1 U.S.C. § 109:

The repeal of any statute shall not have the effect to release or extinguish any

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penalty, forfeiture or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

"Penalty, forfeiture, or liability" encompasses criminal sanctions, see United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 (1888), and the saving clause has been held to "bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commision of an offense." Marrero, supra, 417 U.S. at 661, 94...