U.S. v. Prescon Corp., s. 82-1807
| Decision Date | 01 December 1982 |
| Docket Number | 82-1812,Nos. 82-1807,82-2196,82-2197,s. 82-1807 |
| Citation | 695 F.2d 1236 |
| Parties | , 1982-83 Trade Cases 65,076 UNITED STATES of America, Plaintiff-Appellant, v. The PRESCON CORPORATION and VSL Corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
John J. Powers, III, Atty., Washington, D.C. (William F. Baxter, Asst. Atty. Gen., and Margaret G. Halpern, Atty., Dept. of Justice, Washington, D.C., with him on the brief), for plaintiff-appellant.
Hayden Burns, Houston, Tex. (Eliot Shavin, Houston, Tex., with him on the brief), of Butler, Binion, Rice, Cook & Knapp, Houston, Tex. (Lawrence W. Treece of Bender & Treece, Denver, Colo., Robert C. Bonner of Kadison, Pfaelzer, Woodard, Quinn & Rossi, Los Angeles, Cal., and John P. Akolt, Jr. and John P. Akolt, III of Akolt, Dick & Akolt, Denver, Colo., with him on the brief), for defendants-appellees.
Before SETH, Chief Judge, and BARRETT, Circuit Judge. *
The United States appeals from the judgments of sentences entered against appellees, The Prescon Corporation (Prescon) and VSL Corporation (VSL), or, in the alternative, petitions for a writ of mandamus to obtain an order directing the sentencing court to vacate the judgments of sentences. Our jurisdiction vests pursuant to 18 U.S.C. Sec. 3731 and/or 28 U.S.C. Sec. 1291.
Prescon and VSL pleaded nolo contendere to an indictment charging them, and others, with rigging bids on commercial construction projects in Colorado and some nine neighboring states. Both corporations perform post-tensioning, a method of adding tensile strength to concrete during the construction of large structures such as buildings, stadiums, gymnasiums, hospitals, and parking facilities. Prescon and VSL were each charged with one count of rigging bids in violation of the Sherman Antitrust Act, 15 U.S.C. Sec. 1, and two counts of mail fraud in connection with the submission of rigged bids, in violation of 18 U.S.C. Sec. 1341. The corporate defendants and co-conspirators were charged with engaging "in a continuing combination and conspiracy to suppress and eliminate competition in the post-tension concrete construction of commercial structures ... in unreasonable restraint ... of trade and commerce" by allocating among them contracts for the post-tension concrete construction by means of collusive, noncompetitive and rigged bids. [R., Vol. I, pp. 5-6]. The effects, as charged, were the fixing and maintaining of artificial and noncompetitive level prices and restraint, suppression and elimination of free and open competition. [R., Vol. I, p. 7]. The mail fraud charges were founded on placement of the rigged bids in the mail to be sent or delivered by the United States Postal Service.
Prescon and VSL were sentenced on June 2, 1982, to unsupervised probation and fined, respectively, the sums of $252,000 and $302,000. The sentence provided, however, that the execution of these fines be suspended on the condition that each corporate defendant, on or before August 2, 1982, deposit, respectively, the sums of $50,000 (Prescon) and $75,000 (VSL) "into the Registry of the Court, to be disbursed to such community agencies as selected by the Chief Probation Officer with the approval of the Court." [R., Vol. I, pp. 14, 17]. The court, in suspending the fines, placing each corporate defendant on unsupervised probation for a three year period, and requiring deposits of $50,000 and $75,000, respectively, explained the purposes to be served by the funds, to-wit:
My statement to the Probation Department is I hope that this money will be used for programs, or programs will be suggested to fight crime. I am particularly interested in those types of community programs which are aimed at decreasing crime or affecting crime on the society; so with that direction, then, I will leave it up to the Probation Department to make some recommendations.
* * *
* * *
Again, my informal request, I guess it is, to the Probation Department is to try to not only use this money for reimbursing money that this community is out, but perhaps it will affect crime in our society or the reduction of crime in our society.
The United States did not pose any objections to the trial court's orders. However, the United States, at the commencement of the sentencing proceeding, did notify the court that it objected to the court's acceptance of the nolo contendere pleas in that they are not in the public interest. The Government stated that the private parties who were victims of the conspiracy practiced by the defendants should not be denied "the benefit of a prima facie effect of a conviction or guilty plea, which would be contrary to the Congressional intention expressed in enacting Section 5(a) of the Clayton Act." [R., Vol. II, pp. 6-7]. The United States recommended "substantial corporate fines" predicated on the deliberate, premeditated and well-planned conspiracies of bid rigging by price-fixing. [R., Vol. II, pp. 71, 72].
The trial court, in accepting the nolo contendere pleas, and in entering sentences, the imposition of which were suspended upon the aforesaid terms of probation, proceeded under 18 U.S.C.A. Sec. 3651, which, in pertinent part provides:
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, if the maximum punishment provided for such offense is more than six months, any court having jurisdiction to try offenses against the United States, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.
Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.
The court may revoke or modify any condition of probation, or may change the period of probation.
The period of probation, together with any extension thereof, shall not exceed five years.
While on probation and among the conditions thereof, the defendant--
May be required to pay a fine in one or several sums; and
May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and
May be required to provide for the support of any persons, for whose support he is legally responsible.
[Emphasis supplied].
On appeal, the United States contends that (1) the Criminal Appeals Act, 18 U.S.C.A. Sec. 3731, authorizes the United States to appeal sentencing orders, or, alternatively, the United States may appeal an illegal sentencing order as a Final Decision pursuant to 28 U.S.C.A. Sec. 1291; (2) even absent 18 U.S.C.A. Sec. 3731, and 28 U.S.C.A. Sec. 1291, the government may challenge an illegal sentencing order in a mandamus action; and (3) the Probation Act does not authorize a judge to permit a corporation, as an alternative to paying a fine, to make a contribution to a person or group not aggrieved by the crime.
The United States contends that the Government is authorized to appeal an order imposing an illegal sentence under Sec. 3731 of the Criminal Appeals Act or Sec. 1291 of Title 28; further that the Government may seek a writ of mandamus to correct an illegal sentence. The defendants-appellees, Prescon and VSL, vigorously contend that this court does not have jurisdiction to hear the Government's appeal. They argue that appeals by the Government of criminal cases have been historically disfavored and, absent explicit statutory authority, the federal government has no rights of appeal; further, that a writ of mandamus, being an extraordinary remedy, should not issue to review a trial court's sentence.
We hold that the United States has a right of appeal pursuant to 18 U.S.C.A. Sec. 3731 1 and 28 U.S.C.A. Sec. 1291. 2
In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) the Supreme Court held that the Criminal Appeals Act, 18 U.S.C.A. Sec. 3731, authorizes the United States to take an appeal from a district court's order dismissing an indictment following return of a jury verdict of guilty. The Court held that the only constitutional prohibition against appeals by the United States involves those cases where the defendant may be subjected to a second trial for the same offense. The Supreme Court reviewed the legislative history of the act and stated that the Congress clearly intended to remove all statutory barriers to government appeals and to allow them whenever the Constitution permits. Later, in United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) the Court pertinently observed:
... Congress has removed the statutory limitations to appeal and the relevant inquiry turns on the reach of the Double Jeopardy Clause....
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