The opinion of the court was delivered by: CROAKE
On September 8, 1971, the Anaconda Wire and Cable Company was indicted in this district for 100 counts of discharging refuse into the navigable waters of the United States, in violation of 33 U.S.C. §§ 407 and 411, §§ 13 and 16 of the Rivers and Harbors Act of 1899, also called the Refuse Act of 1899 (March 3, 1899, c. 425, §§ 13, 16, 30 Stat. 1152, 1153) ("The Refuse Act"). At the arraignment, on September 27, 1971, the defendant pleaded guilty as charged to all 100 counts. The sentence, imposed by the undersigned on November 12, 1971 was a fine of $2,000 on each of 100 counts, for a total fine of $200,000.
Thereafter, the claimant, Hudson River Fishermen's Association ("HRFA"), notified the United States Attorney that it was claiming entitlement to a statutory reward for information given leading to the conviction. The United States Attorney thereupon sought an order from the undersigned fixing an award to HRFA; the propriety of this procedure has not been challenged. See Miller v. United States, 455 F.2d 833, 836 (4th Cir. 1971); cf. Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 457 F.2d 81 (2d Cir. 1972); But see United States v. Transit Mix Concrete Corp., Docket No. 70 Cr. 844, 2 E.R.C. 1074 (S.D.N.Y. December 11, 1970), Shipman v. United States, 309 F. Supp. 441 (E.D. Va. 1970). The motion was argued, and an opportunity to present testimonial or other evidence afforded, on March 22, 1972; after argument, decision was reserved.
In its answering papers, HRFA sought one-half of the entire fine, or $100,000. However, at the hearing, the claim was pressed only as to $25,000; in return, the United States refrained from contesting the value of the information submitted to it by HRFA. The $25,000 figure apparently represents a compromise between the $40,000 initial evaluation by HRFA of the worth of its information, and the initial $10,000 evaluation by the United States.
However, this agreement is hardly equivalent to a stipulated settlement which, after purely formal judicial approval, will resolve all issues. Several substantial questions remain for resolution by the Court. The first concerns the determination of the proper statutory role of the Court in passing upon any claim to an informer's reward. After the nature of that judicial function is defined, HRFA's activities must be evaluated. Finally, if an award is determined to be mandated or appropriate, a dollar figure must be arrived at. The $25,000 agreement would be relevant only to the last question, and would not necessarily be binding even there.
33 U.S.C. § 411 states in applicable part:
"Every person and every corporation that shall violate . . . the provisions of [sections] 407 . . . shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction." (Emphasis supplied.)
The italicized language, punctuated as it is, is notably ambiguous. Compare the punctuation of 33 U.S.C. §§ 406 and 410. It speaks of "discretion" in a manner which could relate either to the anterior penalty provisions or to the posterior informer's reward provisions. Of the various reported cases applying this section, apparently only three have actually discussed to which provisions the discretion applies. In only one of these cases, albeit in this district, was the discretion found to refer to the court's determination of whether an applicant was entitled to a reward. United States v. Transit Mix Concrete Corp., supra. Even in that case, the court determined that, once the discretion was exercised in favor of granting a reward, there would be no discretion as to its amount, which would necessarily be one-half of whatever fine was imposed.
In the other two cases, the discretion mentioned in the statute was determined to relate solely to the penalty provisions. Miller v. United States, supra, 455 F.2d at 835-836; United States v. St. Regis Paper Co., 328 F. Supp. 660, 664 (W.D. Wis. 1971). However, Miller was concerned with procedural due process in the adjudication of the validity of the informer's claim. The scope of discretion was of interest to the appellate court primarily as it related to the scope of appellate review and, upon remand, to the proper trial procedure to be followed. (The procedure therein suggested was substantially followed in this case, as noted above.)
The St. Regis case is likewise distinguishable. The two claims involved therein were based on separate convictions of two defendants on one count each. The present action, charging one defendant with one hundred separate but related offenses, could well be materially different. It presents an additional issue: whether a claimant may qualify as an informer if he has presented information which could be said to have led to a conviction on one or more counts, but not to all one hundred counts of the actual conviction. In St. Regis, only one count was involved in each case in which the informer had participated.
It might be argued that, notwithstanding the contrary dicta in these cases, the italicized language in the statute actually grants discretion to set the amount of the informer's reward in any amount from one-half the fine imposed to nothing, even if the claimant is a proper informer under the statute, and irrespective of the number of counts in the indictment or information. The argument would be that any reading of the statute which would restrict the discretionary language to the fashioning of the penalty would make that language mere surplusage, since it is patent that federal district courts generally possess complete sentencing discretion. A contrary reading, interpreting the statute as granting discretion relating to approval of informers' rewards, would be alleged to be preferable in that it would give full effect to all the language in the statute.
In refutation of this argument, it should first be recalled that no court has yet seen fit to adopt this reasoning. In addition, the argument, flowing as it does solely from general rules of statutory construction, is relatively unpersuasive when juxtaposed with the apparent legislative intent to be garnered from actual reading of the applicable provisions of the Refuse Act itself.
The impression engendered by the Refuse Act, which is actually an edited codification of earlier statutes going back to 1886, United States v. Standard Oil Co., 384 U.S. 224, 226-230, 86 S. Ct. 1427, 16 L. Ed. 2d 492 (1966), is one of conciseness, explicitness, and universality of application. To take one example, 33 U.S.C. § 407 states,
"It shall not be lawful to throw, discharge, or deposit . . . from . . . [any] floating craft of any kind, or from the shore . . . any refuse matter of any kind or description whatever ...