filed as amended october 30 1989.: October 11, 1989.
Appeal from the United States District Court for the District of New Jersey, (D.C. Criminal Nos. 87-00076-01/03).
Becker, Stapleton and Garth, Circuit Judges.
Alvin H. White II, Charles J. Carite, and Atlantic Disposal Service, Inc. ("ADS"), a trash collection company that White and Carite control, appeal the sentences imposed upon them after they pled guilty to a scheme to defraud the United States by submitting rigged bids for trash collection at Fort Dix, New Jersey. The negotiated pleas, entered on December 8, 1987, after six days of trial in the district court for the district of New Jersey, were to two counts of conspiracy to restrain trade in violation of the Sherman Antitrust Act, 15 U.S.C. § 1 (1982). The first count, contained in indictment No. 87-77, involved a scheme to rig bids in 1983 and 1984; the second count, contained in indictment No. 87-76, involved a scheme to rig bids in 1986.*fn1 The district court spared White and Carite prison terms, but fined each man $350,000 and ordered both to perform community service.*fn2 ADS was fined a total of $2,000,000. The district court also determined, pursuant to section 2 of the Criminal Fine Enforcement Act of 1984 ("CFEA"), Pub.L. No. 98-596, § 2, 98 Stat. 3134, 3134 (1984) (codified at 18 U.S.C. § 3565(b)(2) (Supp. V 1987)), that the defendants were required to pay interest on the $100,000 fine imposed for the 1986 bid rigging scheme, indictment No. 87-76. No interest was assessed on the fine imposed in No. 87-77 because, as explained below, section 2 of the CFEA applies only to crimes committed after December 31, 1984.*fn3
We find the defendants' principal contentions on appeal -- that the sentences violated the eighth amendment's proportionality requirement as expounded in Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983), and that the district court abused its discretion in denying their Rule 35 motion for reduction of sentence -- to be legally frivolous.*fn4 The more difficult question, which we will address in this opinion, is whether the district court erred in imposing interest on the fines arising out of the 1986 bid rigging scheme.
Plaintiffs contend that the CFEA interest provision (section 2) is inapplicable to them because it was repealed as of November 1, 1987 by the Sentencing Reform Act ("SRA"). For the reasons that follow, we hold that section 2 of the CFEA has not been repealed in full by the SRA but continues to apply to all crimes committed between December 31, 1984 (the effective date of section 2 of the CFEA) and November 1, 1987 (the effective date of the SRA). Because the criminal scheme with respect to which interest was imposed here took place between those two dates, we will affirm the judgment of the district court imposing interest. As we explain below, however, and at the suggestion of the government, we will remand with instructions to vacate fines erroneously imposed against White and Carite on the count involving the 1983 and 1984 contracts (No. 87-77) because those fines were imposed pursuant to a statutory provision that was not operative during the time the crimes were committed on those counts.
On October 12, 1984, Congress enacted the SRA. While the Act is best known for its attention to disparity in sentencing, it was a product of extensive research that revealed numerous inadequacies in the federal criminal justice system, one of which was the criminal fine collection system. Prior to the SRA there was no provision for collecting interest on criminal fines. The relevant fine provision in effect at that time read as follows:
[In] all criminal cases in which judgment or sentence is rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, such judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases. Where the judgment directs imprisonment until the fine or penalty imposed is paid, the issue of execution on the judgment shall not discharge the defendant from imprisonment until the amount of the judgment is paid.
18 U.S.C. § 3565 (1982) [hereafter "old section 3565"].
In drafting the SRA, Congress tried to bolster federal fine collection mechanisms. The most significant innovations were contained in section 212 of the SRA, 98 Stat. at 1987, codified at 18 U.S.C. § 3612(f) (1987), which provides for interest on criminal fines. Section 235(a)(1) of the Act established November 1, 1986 as the effective date for the SRA as a whole. This date was subsequently changed to November 1, 1987 by section 4 of the Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat. 1728, 1728 (1985). Thus, section 212 of the SRA went into effect on November 1, 1987 and is currently the law. If one is convicted of a crime today, the fine imposed will be governed pursuant to section 212 of the SRA, and interest will be imposed accordingly.
Apparently, Congress did not want to wait a full two (and as it turned out three) years to implement the new fine collection system. It enacted section 238 of the SRA, 98 Stat. at 2034, in order to make interim improvements. Section 238(a) added chapter 228 to the United States Code. Within this chapter was 18 U.S.C. § 3595, 98 Stat. at 2037, an interest on fines provision. In order to avoid ambiguity with the old law, Congress repealed the old criminal fine provision (which, as noted, contained no interest provision). Section 238(g)(1) stated that "[section] 3565 [quoted above] of title 18, United States Code, is repealed." 98 Stat. at 2039. Elsewhere in the SRA, Congress codified a new section 3565, but it addresses a different subject -- probation. See 98 Stat. at 1995.
SRA section 238 thus created a precursor to the fine collection system outlined in SRA section 212. It is logical to assume that Congress intended this alternative system to go into effect before the SRA's primary fine collection scheme (section 212), but Congress failed to say when, before November 1, 1986, the alternative system would go into operation.*fn5 Congress did provide for the future repeal of the alternative system in section 238(i), which stated that section 238 would be repealed as of November 1, 1986, the date on which the permanent fine collection system was to go into effect. However, that repeal is meaningless if the section never went into effect.*fn6 Given that the only explicit indication we have of when section 238 became operative is contained in ...