Van Dusen, C. J., Aldisert, C. J., Dissenting in Appeal No. 72-1233.
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.*fn1
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 1/2 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.*fn2
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.*fn3 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.*fn4 The order to show cause*fn5 furnished him adequate notice under F. R. Crim. P. 42(b) and thus met the requirements of due process.*fn6 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.*fn7 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.*fn8
The defendant also argues that he was denied his right to a jury trial.*fn9 There is, of course, no such right in the trial of a civil contempt charge. In Cheff v. Schnackenberg, 384 U.S. 373, 379-80, 16 L. Ed. 2d 629, 86 S. Ct. 1523 (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 labeled 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, 23 L. Ed. 2d 162, 89 S. Ct. 1503 (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, 593-94, 91 L. Ed. 1117, 67 S. Ct. 918 (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 injunction*fn10 would subvert the scheme of section 216(a) and rob him of constitutional rights.*fn11 This line of argument has been accepted by some courts,*fn12 but it was squarely rejected in the recent case of United States v. Fidanian, 465 F.2d 755 (5th Cir. 1972).*fn13 There the court reasoned, first, that such a limitation on the power of the federal courts to punish violations of their own orders -- which orders, we note, were expressly authorized in section 217 -- should be explicit. Second, punishment for criminal contempt does not reach the first offenders whom Congress intended to shield in section 216(a); rather, it affects only those who have already experienced a judicial proceeding under the Act, namely, the proceeding when the injunction was issued. As noted above, Fiore has been the defendant in three separate proceedings brought in 1959, 1962 and 1965 to compel him, inter alia, to comply with the provisions of the Act and has been held in contempt in two of these proceedings.
Defendant next asserts that the provision in the sentence whereby it would be reduced if he paid the fines within 30 days violates the doctrine set forth by the Supreme Court in Tate v. Short, 401 U.S. 395, 28 L. Ed. 2d 130, 91 S. Ct. 668 (1971), and Williams v. Illinois, 399 U.S. 235, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970). There the Supreme Court held that an indigent unable to pay a fine cannot be imprisoned for failure to do so. However, defendant did not maintain in the district court, and does not maintain here, that he is unable to pay. Instead he argues that if a poor man in his situation could not be imprisoned, then he too should not be imprisoned. We note that the Supreme Court in both the above cases was careful to disavow any implication that one capable of paying could not be imprisoned for wilful refusal to pay a fine. 401 U.S. at 400-01; 399 U.S. at 242 n. 19. See United States ex rel. Griffin v. Martin, 409 F.2d 1300, 1302 (2d Cir. 1969). Moreover, the situation here can be distinguished from the situations in Williams v. Illinois and Tate v. Short. The fine here is unconditional, and the prison sentence depends not on whether defendant eventually pays but on whether he pays within 30 days. Furthermore, criminal contempt differs from the statutory offenses in those cases because the punishment for contempt in this case was appropriately tailored to the offender. Therefore, the equal protection rationale relied on by the Supreme Court does not apply here.
Lastly, defendant contends that because the $10,000 "remedial fine" is neither coercive nor compensatory, which the Government concedes,*fn14 it must be punitive. Thus, the district court in effect punished the violation of its order with both a fine and imprisonment, even though § 401(3) has been construed to authorize only one or the other. In re Bradley, 318 U.S. 50, 87 L. Ed. 608, 63 S. Ct. 470 (1943); Board of Education v. York, 429 F.2d 66 (10th Cir. 1970). On this issue, we agree with defendant. While we could remand to the district court for resentencing, we possess the ...