UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
May 15, 1953
ABC FREIGHT FORWARDING CORP. et al.
The opinion of the court was delivered by: EDELSTEIN
The Government has moved, under Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C., for an order to correct the sentences imposed on the defendant corporations for violations of the Elkins Act, 49 U.S.C.A. § 41(1). In each of the two cases, the defendant pleaded guilty to three counts of the information, and a fine of $ 1,000 was imposed on each count. Because the violations involved appeared to be technical and without malafide purpose, the court, upon application of counsel and without opposition by the Government, 'remitted' the payment of the fines. Such a procedure has not been infrequent in this court, and indeed it seems that never before has it been considered exceptionable. However, the Government advances on this motion the broad contention that the court lacks power, authority or discretion to 'remit' (that is, to suspend the imposition or execution of) mandatory minimum fines required by a criminal statute.
The underlying thesis of the Government's position raises interesting and difficult problems which go far beyond the confines of these cases. But the problems need not be decided here. For if the court does have power to suspend the imposition or execution of mandatory minimum fines required by a criminal statute, that power is derived from the Probation Act, 18 U.S.C. § 3651, which requires that its exercise be coupled with placing a defendant on probation. These defendants were not placed upon probation; consequently, the sentences were illegal and must be corrected. The issue of whether or not a corporation may be placed upon probation does not arise, for I am unwilling to impose probation upon these defendants.
Accordingly, the motion will be granted and the sentences will be corrected to provide for the minimum fines on each count for each defendant.
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