U.S. v. Clovis Retail Liquor Dealers Trade Ass'n, s. 75-1368

Citation540 F.2d 1389
Decision Date27 September 1976
Docket NumberNos. 75-1368,s. 75-1368
Parties1976-2 Trade Cases 61,035 UNITED STATES of America, Plaintiff-Appellee, v. CLOVIS RETAIL LIQUOR DEALERS TRADE ASSOCIATION et al., Defendants-Appellants. to 75-1381.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Robert N. Singer of Coors, Singer & Broullire, Albuquerque, N. M., for appellants.

Michael J. Pugh and Robert B. Nicholson, Dept. of Justice, Washington, D. C. (Thomas E. Kauper, Asst. Atty. Gen., Washington, D. C., on the brief), for appellee.

Before LEWIS, Chief Judge; SETH and BARRETT, Circuit Judges.

LEWIS, Chief Judge.

Defendants appeal the judgment and order of the district court for the District of New Mexico entered upon their pleas of nolo contendere to an indictment charging violations of the Sherman Antitrust Act and from their sentences pursuant to such violations.

Defendants contend the court lacked subject matter jurisdiction because their acts were not in interstate commerce, the indictment did not sufficiently allege the alternate jurisdictional basis that defendants' activities "affected" interstate commerce and, even were the indictment sufficient, the defendants' activities did not affect interstate commerce. These same issues have been dealt with by this court in reviewing the appeal of defendants' coconspirator, Dan B. Buzzard. United States v. Buzzard, 10 Cir., 540 F.2d 1383. For reasons discussed in that opinion we hold the trial court did have adequate subject matter jurisdiction.

Defendants also allege the trial court erred in imposing sentences requiring "community restitution" as a special condition of probation. The trial court gave the maximum fine of $50,000 to each defendant, the individuals were also sentenced to one year in jail. The court then reduced the sentences of Thomas E. Wolf, Johnnie Mack Goodman and Kit Pettigrew to imprisonment for six months, remainder suspended to probation for five years on condition that they pay certain sums 1 as restitution and reparations to the Curry-Roosevelt County Council on Alcoholism, Inc. The execution of the sentences of the remaining defendants was suspended to probation for five years on condition that they also pay certain sums 2 to the Council. As a result of the trial court's sentencing, the Curry-Roosevelt County Council on Alcoholism, Inc. would receive $233,500.

The trial court's reasoning is indicated by the order as to Fred W. Johnson:

It is further ordered that execution of sentence as to both fine and imprisonment is suspended and you are placed on five years probation upon the usual conditions of probation and the special condition that you pay, in the form of restitution and reparation to the community at large, the sum of $15,000 to the Curry-Roosevelt County Council on Alcoholism, Inc., a non-profit organization to be utilized in a continuing program for treatment and community education regarding alcohol related problems. This amount is to be paid in regular monthly installments beginning June 1, 1975 under the direction of the Probation Officer of this Court and is to be fully paid within the probation period.

Suspension of criminal sentences and the imposition of probation are governed by 18 U.S.C. § 3651 which provides in pertinent part:

While on probation and...

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19 cases
  • Walczak v. State
    • United States
    • Maryland Court of Appeals
    • 1 Septiembre 1983
    ...105 S.Ct. 97, 83 L.Ed.2d 43 (1984); United States v. Gering, 716 F.2d 615, 623-625 (9th Cir.1983); U.S. v. Clovis Retail Liquor Dealers Trade Ass'n., 540 F.2d 1389, 1390 (10th Cir.1976). State courts in other jurisdictions interpreting similar restitution statutes have also reached the same......
  • Fiore v. U.S.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 13 Diciembre 1982
    ...(requiring blood donation of defendant convicted of Selective Service Act violation). See also United States v. Clovis Retail Liquor Dealers Trade Association, 540 F.2d 1389, 1390 (10th Cir.1976) (requiring defendant in criminal antitrust case to pay reparations to party not specifically ha......
  • U.S. v. Missouri Valley Const. Co., 83-2188
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 22 Agosto 1984
    ...in Anderson, supra, 698 F.2d 911, appeared to conflict with two decisions of the Tenth Circuit, United States v. Clovis Retail Liquor Dealers Trade Association, 540 F.2d 1389 (10th Cir.1976), and United States v. Prescon Corp., 695 F.2d 1236 (10th Cir.1982). Second, the panel was aware that......
  • U.S. v. Prescon Corp., s. 82-1807
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 1 Diciembre 1982
    ...of a fine, to make a contribution to a person or group not aggrieved by the crime. We agree. In United States v. Clovis Retail Liquor Dealers Trade Ass'n., 540 F.2d 1389 (10th Cir.1976), this court reversed the trial court's judgment, following entry of pleas of nolo contendere to an indict......
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