UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
May 3, 1983;
UNITED STATES OF AMERICA
DANILOW PASTRY CO., INC., DAN-SAN PASTRY SHOP, INC., d/b/a BROADWAY PASTRY SHOP, R. K. BAKING CORP., ACME CAKE CO., INC., MRS. MAC'S BAKING CO., INC., TEMTEE DONUTS, INC., ERNST OESTREICHER, IRVING SANDERS, SEYMOUR RAPPAPORT, WILLIAM F. WENZEL, ROBERT F. McKENNA, JOHN F. McKENNA, Defendants.
The opinion of the court was delivered by: EDELSTEIN
MEMORANDUM OPINION AND ORDER
EDELSTEIN, District Judge:
The issue at bar is the propriety of sentences imposed by this court on January 31, 1983 against six corporations engaged in baking pastry for wholesale distribution, which were sentenced together with six individual defendants. The court ordered each of the corporations to pay a fine and to donate a certain amount of fresh baked goods to needy organizations that were to be specified by the court.
The government contends that the sentences were improper. The government argues that the only authorization for the court to impose such an order is the Probation Act, 18 U.S.C. § 3516, and that under the Probation Act the court should have ordered the donation as a condition of probation. The government further contends that under the Probation Act such a donation is "restitution," specifically provided for by the Act, and as such it can benefit only aggrieved parties and only in the amount of their actual damages.
The defendants are six major wholesale bakeries in the New York metropolitan area and six individuals who were or are principals of those bakeries.
Total sales by the defendant corporations from 1977 through 1980 were in excess of $100 million. The indictment, filed June 4, 1982, charges that:
From at least as early as the mid-1960s and continuing until at least March 1981 . . . the defendants and co-conspirators have engaged in a continuing combination and conspiracy in unreasonable restraint of the aforesaid interstate trade and commerce in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.
The aforesaid combination and conspiracy has consisted of a continuing agreement, understanding and concert of action among the defendants and co-conspirators, the substantial term of which was to raise and fix prices of pastry.
In September 1982 the defendants moved this court for an order granting them leave to change their pleas from not guilty to nolo contendere. The defendants argued that the corporate defendants were financially ailing and that they could not afford the expense of defending a six week criminal trial.
Perhaps of greater significance, the defendants sought to deny private plaintiffs the advantages of using a guilty plea or conviction as prima facie evidence in a subsequent private antitrust action, and of going to court with the evidence and data presented by the government at trial. 15 U.S.C. § 16. A nolo contendere plea would accomplish these goals for the defendants.
The government opposed these asserting that the acceptance of nolo pleas would: (1) diminish the punitive and deterrent impact of prosecution because it would minimize the publicity, which usually surrounds a trial, and because it might allow the defendants to claim that only a technical violation had occurred; (2) lend credence to the view that white-collar offenders are treated more leniently than other offenders; and (3) not provide to private plaintiffs the aforementioned benefits of a guilty plea, trial or conviction.
Both sides agreed that tremendous savings would result from permitting nolo on the defendants settling with private plaintiffs who had sued them in ten class actions in the Eastern District of New York.
The court mediated the settlement discussions of the private actions until a settlement was achieved.
The court then sought to defuse the possibility that a defendant would use the nolo pleas to claim that their violation was merely technical. Thus, the court required each defendant to submit for the government's approval a narrative statement of his (or its) role in the conspiracy. Each defendant submitted such a statement, the government approved the accuracy and meaningfulness of each, and each became a part of the public record of the case. In addition, each individual defendant, and in the case of a corporation its representative, was required to state, in open court, the nature of his (or its) complicity in the conspiracy. Having taken these steps, and after questioning each defendant to ensure the voluntariness of the pleas, the court accepted nolo pleas from all defendants.
The government submitted a sentencing memorandum recommending a specified fine for each corporate defendant and, for each individual defendant, a specified jail term and probation.
The government, as it had in opposing the defendants' application to change their pleas from not guilty to nolo contendere, emphasized the need for general deterrence. After carefully considering the parties contentions, and all the circumstances in this case, the court imposed fines, suspended execution of jail terms, placed the defendants on probation, and ordered five of the six individuals to perform community service as a condition of probation. No objection has been made to the sentences imposed on the individual defendants.
In sentencing the corporate defendants the court similarly imposed fines and ordered the defendants to perform community service.
The community service imposed on each of the corporate defendants was to donate a specified amount of their pastry products to needy organizations, the organizations to be designated in a subsequent order.
A. Procedural Challenge under § 3651
By letter dated February 10, 1983 over the signature of Rebecca Meiklejohn, Attorney in the Antitrust Division of the Department of Justice (the "February 10 Letter"), the government challenges the sentences imposed on the corporate defendants.
The first of the government's challenges to this sentence is procedural. It requests the court to correct, pursuant to Fed. R. Crim. P. 35, a sentence imposed in an illegal manner. The government argues that this court's only authority to make such a donation order lies in the Probation Act, 18 U.S.C. § 3651,
which requires that the defendant be placed on probation and the donation ordered as a condition of probation.
This court ordered the delivery of baked goods under its common law discretionary power with respect to sentencing.
This court, however, agrees with the government that the sentences should be based upon the statutory authority of 15 U.S.C. § 3651. Hence the first aspect of the government's application is granted and, pursuant to the Fed. R. Crim. P. 35(a)
this court hereby orders the sentences imposed on the six corporate defendants be corrected to read as follows:
IT IS ADJUDGED that Danilow Pastry Co., Inc. is hereby fined the sum of $162,400 to be paid to the United States Treasury, as directed by the Probation Department in cooperation with the Government in scheduling the payments. The execution of said fine in excess of $100,000 is hereby suspended and the defendant is placed on probation on the condition that it arrange for the delivery of $1,200 of its fresh baked goods each week, for 12 months, to organizations that will be designated in this order. In calculating the $1,200 of baked goods, the wholesale prices are to be used. The selection of the goods is to be made by the organizations so designated.
IT IS ADJUDGED that Dan-San Pastry Shop is hereby fined the sum of $20,400 to be paid to the United States Treasury, as directed by the Probation Department in cooperation with the Government in scheduling the payments. The execution of said fine in excess of $10,000 is hereby suspended and the defendant is placed on probation on the condition that it arrange for the delivery of $200 of its fresh baked goods each week, for 12 months, to organizations that will be designated in this order. In calculating the $200 of baked goods, the wholesale prices are to be used. The selection of the goods is to be made by the organizations so designated.
IT IS ADJUDGED that R.K. Baking Corp. is hereby fined the sum of $20,400 to be paid to the United States Treasury, as directed by the Probationn Department in cooperation with the Government in scheduling the payments. The execution of said fine in excess of $10,000 is hereby suspended and the defendant is placed on probation on the condition that it arrange for the delivery of $200 of its fresh baked goods each week, for 12 months, to organizations that will be designated in this order. In calculating the $200 of baked goods, the wholesale prices are to be used. The selection of the goods is to be made by the organizations so designated.
IT IS ADJUDGED that Acme Cake Co. is hereby fined the sum of $112,400 to be paid to the United States Treasury, as directed by the Probation Department in cooperation with the Government in scheduling the payments. The execution of said fine in excess of $50,000 is hereby suspended and the defendant is placed on probation on the condition that it arrange for the delivery of $1,200 of its fresh baked goods each week, for 12 months, to organizations that will be designated in this order. In calculating the $1,200 of baked goods, the wholesale prices are to be used. The selection of the goods is to be made by the organizations so designated.
IT IS ADJUDGED that Mrs. Mac's Baking Co. is hereby fined the sum of $20,400 to be paid to the United States Treasury, as directed by the Probation Department in cooperation with the Government in scheduling the payments. The execution of said fine in excess of $10,000 is hereby suspended and the defendant is placed on probation on the condition that it arrange for the delivery of $200 of its fresh baked goods each week, for 12 months, to organizations that will be designated in this order. In calculating the $200 of baked goods, the wholesale prices are to be used. The selection of the goods is to be made by the organizations so designated.
IT IS ADJUDGED that Temptee Donuts, Inc. is hereby fined the sum of $58,200 to be paid to the United States Treasury, as directed by the Probation Department in cooperation with the Government in scheduling the payments. The execution of said fine in excess of $40,000 is hereby suspended and the defendant is placed on probation on the condition that it arrange for the delivery of $350 of its freshed baked goods each week, for 12 months, to organizations that will be designated in this order. In calculating the $350 of baked goods, the wholesale prices are to be used. The selection of the goods is to be made by the organizations so designated.
WHEREAS each of the following organizations has been found by this court to serve the needy in the defendant's market area, and the court has determined that each of the following organizations has a need for the defendants' goods in at least the amounts designated herein,
IT IS HEREBY ORDERED that the probation department, in conjunction with the corporate defendants and the organizations designated herein, arrange for the defendants to supply fresh baked goods to the following organizations in the following amounts for distribution so far as practicable in the defendants' market area:
Catholic Charities of the Archdiocese of New York: $600 per week;
Citymeals-on-Wheels of the New York City Department for Aging: $400 per week;
Manhattan Youth Residence Center and Pleasantville Cottage School of the Jewish Child Care Association of the United Jewish Appeal -- Federation of Jewish Philanthropies: $600 per week to be divided equally between the two organizations;
Community Food Bank, Inc. of Newark N.J.: $100 per week;
Coalition for the Homeless at 105 East 22 St., New York, N.Y.: $250 per week;
Salvation Army, Emergency Disaster Office at 155 South Eliott Place, Brooklyn, N.Y.: $600 per week;
Federation of Protestant Welfare Agencies, East Harlem Welfare Center at 2050 Second Ave and West Side Churches Service Alliance: $600 per week to be divided equally between the two organizations;
New York Philanthropic League, 1 East 104th Street, New York, N.Y.: $200 per week.
B. Substantive Challenge under § 3651
The government's next challenge is that 15 U.S.C. § 3651 does not empower the court to order that the donations be given to the designated organizations if they are not "aggrieved parties" within the meaning of the Probation Act. The sentences as corrected, however, are fully consistent with the purpose of the Probation Act. Furthermore, the donation order, when imposed as a condition of probation complies with the judicial standard generally applied in construing such conditions.
Until 1916 a sentencing court's power to suspend the execution of a sentence was governed by a common law power. In Ex Parte United States, supra, the Court held that this power did not exist. By 1925 when the first federal probation statute was enacted, every state had such a statute to give judges discretion to suspend overly harsh sentences in the interests of justice, to achieve maximum deterrence and to achieve maximum rehabilitation. United States v. Fultz, 482 F.2d 1, 2-3 (8th Cir. 1973)... The House Report on the Probation Act indicates that Congress sought to give federal judges the same sentencing discretion that state court judges had in order to achieve similar goals. H.R. No. 1377, 68th Cong., 2d Sess. (1925). The sentences imposed in this case attempt to balance these goals.
The standard for evaluating whether conditions of probation meet the purposes of the Probation Act allows reversal only for an "abuse of discretion" because the "sentencing court's discretion to set conditions of probations is broad." Fiore v. United States, supra, 696 F.2d at 207. See also, United States v. Pastore, 537 F.2d 675, 681 (2d Cir. 1976); United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971). The prerequisite for the condition is that it "must bear "a reasonable relationship to the treatment of the accused and the protection of the public." Fiore v. United States, supra, 696 F.2d at 208, quoting, United States v. Pastore, supra, 537 F.2d at 681; Porth v. Templar, 453 F.2d 330, 333 (10th Cir.1971). As discussed below, the sentences herein are related to reforming those in power in this industry, deterring future price fixing and protecting the public.
The punishment of corporate defendants frequently requires courts to adopt "unique and creative" sentences. United States v. Mitsubishi Int'l Corp., 677 F.2d 785, 788 (9th Cir. 1982) (upholding sentence requiring corporations to loan executives for one year to a community organization and to make a contribution of $10,000 for each violation to said organization). This is such a case.
In formulating its sentences, the court sought punishment that would compensate for the reduced deterrent effect of the nolo pleas.
After reviewing the extensive financial data submitted by the parties, the court determined that fines substantial enough to achieve the appropriate measure of deterrence would bankrupt the corporate defendants. Such a sentence would cause widespread unemployment among the bakeries' employees,
damage the economies of the communities in which the plants are located, and ironically, diminish competition. Hence, this is precisely the overly harsh sentence that the Probation Act was designed to avoid.
The sentences have avoided this harsh result, and at the same time have increased the deterrent effect beyond that which would have been provided by fines. These sentences help compensate for the reduced deterrence inherent in the acceptance of the nolo pleas. In addition, criminological literature has shown that symbolic restitution that reaffirms the community's standards is an important element of general criminal deterrence.
Finally, deterrence is fostered by the publicity garnered by the sentences.
Rehabilitation and specific deterrence against future price fixing by the six corporations is also enhanced in that the executives and workers of these companies will be made aware, on a continuous basis throughout the next twelve months, of the violations perpetrated by their company, of the need for restitution, and of the need to guard against similar violations in the future.
See Fisse, Community Service As A Sanction Against Corporations, 1981 Wis. L. Rev. 970, 977 91981).
With these considerations in mind, the court ordered each of the corporate defendants to pay all, or in one case a substantial part, of the fine recommended by the government and additionally ordered each to deliver a certain amount of fresh baked goods to needy organizations.
The sentences require the corporations to perform community service by providing their products at no charge to needy members of the community. In this way the wrongdoings of these defendants are called to public attention, the public is made aware of the community service and symbolic restitution that these violators will make, punishment is increased beyond what fines could extract and yet the needs of the innocent employees, the customers, and the communities are secured.
After determining that community service was the best way to promote these goals, the court then had to determine who would be the beneficiaries of this community service. The court was aware that compensation for many of the defendants' customers had already been arranged through the settlement reached in the private actions. The court selected, as beneficiaries, organizations that serve the public in order to further the public awareness and rehabilitative nature of the punishment and to provide symbolic restitution to the community.
In conclusion, the community service order was not an abuse of discretion under the Probation Act.
Other than the general standard that probation conditions must satisfy, probation may not be used to exceed the maximum penalty under the law. Fiore v. United States, supra, 696 F.2d at 209. The maximum penalty that a court may impose under the Sherman Act on a corporate defendant is $1 million. By any valuation of the requirements of community service imposed upon these corporations, none even approaches that amount.
The government challenges the sentences on the ground that under § 3651 the court's power to impose restitution as an element of a sentence is limited in that such restitution must be to parties injured by the defendants' illegal conduct and to the actual damages caused by the defendants' illegal conduct. Thus, in the present case, the government asserts that the distribution of baked goods must be confined to organizations that were "injured" by the defendant's price fixing activities.
February 10 Letter, at 4. Moreover, the government contends that such restitution may not exceed the actual damages sustained by each organization as a result of the defendants' price fixing activities. February 10 Letter, at 4-5.
In support of these contentions, the government relies on the decisions in United States v. The Prescon Corp., 695 F.2d 1236 (10th Cir. 1982) and United States v. Clovis Retail Liquor Dealers Trade Ass'n, 540 F.2d 1389 (10th Cir. 1976). The government also acknowledges that the Eighth Circuit recently rejected these arguments by the government in United States v. William Anderson Co., supra.
In United States v. The Prescon Corp., The Prescon Corp. ("Prescon") and VSL Corp. ("VSL") pleaded nolo contendere to an indictment charging them with rigging construction contract bids in violation of the Sherman Antitrust Act, 15 U.S.C. § 1. Prescon and VSL were sentenced to probation and fined, respectively, the sums of $252,000 and 302,000. The sentencing court suspended the execution of the fines on the condition that each defendant deposit, respectively, the sums of $150,000 and $175,000 into the Registry of the Court to be distributed to community agencies designated by the Chief Probation Officer subject to the approval of the court. The court stated that "I hope that this money will be used for programs . . . to fight crime." United States v. The Prescon Corp., supra, 695 F.2d at 1238. The government appealed the sentencing order contending that § 3651 does not authorize a judge to sentence a corporation with an alternative to payment of a fine, if that alternative involves a probation condition requiring a contribution to a person or group not aggrieved by the defendant's crime.
Similarly, in United States v. Clovis Retail Liquor Dealers Trade Ass'n, fifteen defendants pleaded nolo contendere to an indictment charging them with a violation of the Sherman Act in connection with the retail prices of liquor. The court imposed the maximum fine of $50,000 on each defendant and the individual defendants were sentenced to one year in jail. Subsequently, the sentences of three individual defendants were reduced to six months imprisonment; the execution of the remainder of their sentence were suspended and they were placed on probation for five years conditioned on the payment by each of specified sums to the Curry-Roosevelt County Council on Alcoholism, Inc. The rest of the defendants were put on probation for five years conditioned on the payment of specified sums to the Curry-Roosevelt County Council on Alcoholism, Inc. The total amount to be paid by the defendants to the Council on Alcoholism was $233,500. The defendants appealed that portion of their sentences requiring them to make payments to the Council on Alcoholism.
In both Prescon and Clovis Retail Liquor Dealers Trade Ass'n, the Tenth Circuit invalidated the sentencing orders on the ground that the sentences provided for restitution and that under § 3651 restitution is limited to "aggrieved parties." However, as the court stated in Prescon: "We do not suggest that listing of the four specific conditions of probation [in § 3651] "closes the door" to other conditions." Supra, 695 F.2d at 1242. See also United States v. Tonry, 605 F.2d 144, 147 (5th Cir. 1979); United States v. Pastore, supra, 537 F.2d at 681.
Courts have broad discretion under § 3651 to impose probation as long as the conditions bear "a reasonable relationship to the treatment of the accused and the protection of the public." United States v. Pastore, supra, 537 F.2d at 680, quoting, Porth V. Templar, supra, 453 F.2d at 333. Additionally, as the court in United States v. Pastore stated in discussing the language of § 3651: "[i]t would be hard to use more general words than "upon such terms and conditions as the court deems best." Id.
As discussed previously, in the present case the sentences are designed primarily to require the defendants to perform community service. In United States v. Restor, the court stated that community service is a proper condition of probation
"so long as it is reasonably related to rehabilitation of the probationer, . . . deterrence of future misconduct by the probationer general deterrence of others, [or] deserved punishment."
679 F.2d 338, 340 (3d Cir. 1982), quoting, United States v. Tonry, supra, 605 F.2d at 148. The community service aspects of the sentence in this case comport with the United States v. Tonry standard. The community services were carefully drawn to provide maximum rehabilitative and dererrent effect without bankrupting the defendant corporations. See Higdon v. United States, 627 F.2d 893, 899 (9th Cir. 1980).
To the extent that the subject sentences provide restitution, such restitution is in the nature of "symbolic restitution" designed primarily to deter future misconduct on the part of the defendants rather than to provide compensation to their victims. See United States v. Arthur, 602 F.2d 660, 664 (4th Cir. 1979), cert. denied, 444 U.S. 992, 62 L. Ed. 2d 422, 100 S. Ct. 524 (1979). Accordingly, the sentences are not limited by the requirements that any restitution be only to "aggrieved parties."
Both Prescon and Clovis Retail Liquor Dealers Trade Ass'n involved challenges to conditions of direct monetary payments. A money payment is the sort of restitution to aggrieved parties that is envisioned by the restitution section of the Probation Act and is limited by that section. Here the court has ordered a community service condition. Furthermore, the condition is intended not only to make restitution, but equally to aid in deterrence and in reformation of the principals in this industry. Hence the court's sentence does not fall under the Clovis Retail Liquor Dealers Trade Ass'n or Prescon holding. Accordingly, the court concludes that the case law relied upon by the government in support of its contention that a sentencing court cannot impose a community work program that provides services to a portion of the general public is inapposite.
Although not referred to by the government, the court also notes that in a recent decision by the Second Circuit the court stated that under § 3651 "the defendant may not be required to pay reparations to persons not aggrieved by his crimes, or simply to the community at large." Fiore v United States, supra, 696 F.2d at 209, citing, Clovis Retail Liquor Dealers Trade Ass'n. Fiore v. United States, like the cases cited by the government, involved a monetary payment condition, an express condition of direct restitution, which is not present here.
The court finds strong support for its sentence in the decision by the Eighth Cicuit in United States v. William Anderson Co., supra. In that case corporate defendants were sentenced to pay fines and placed on probation for price fixing. Officers and employees of the corporate defendants were sentenced to serve a period of brief incarceration and to perform community service work for charitable organizations. The court provided that the fines payable to the government would be reduced by amounts paid by the corporate defendants to the charitable organizations where its employees and officers were working. There, despite the fact that the "donation" resulted in a reduction in the amount of the fine payable to the government, the court of appeals upheld the sentence stating that:
It would seem that Judge Urbom's sentencing objectives are in full accord with current penological philosophy and that his carefully formulated scheme of sentences deserves the praise of being described as "creative," innovative, and imaginative just as much as that involved in U.S. v. Mitsubishi Int. Corp., 677 F.2d 785, 787 (9th Cir. 1982). Other instances of imposition of "behavioral sanctions" as terms of probation that have attracted comment are the sentences imposed by Judge Charles B. Renfrew of San Francisco in the "paper label" cases, where price-fixers were required to make a dozen speeches to civic groups about the evils of price-fixing, and those imposed by Judge Car A. Muecke of Pheonix, Arizona permitting the executives of price-fixing milk companies to perform community service and their companies to donate milk to charity.
Supra, 698 F.2d at 913 (footnotes omitted).
The court of appeals expressly rejected the government's argument that payment of money to any party other than the United States Treasury is illegal under § 3651. The court reasoned that the statute merely identifies several sentencing alternatives, but that they are not exclusive and the sentencing judge is not limited by them.
The sentence formulated by this court falls far short of what the Eighth Circuit would allow. United States v. William Anderson Co., supra. The Eighth Circuit held that a condition of probation involving a purely monetary payment, imposed solely to achieve restitution, was not limited by the restitution section of the Probation Act. United States v. William Anderson Co. indicates that the § 3651 limitations should be construed narrowly. This interpretation is consistent with the remedial nature of the Act. See e.g., Tcherepnin v. Knight, 389 U.S. 332, 336, 19 L. Ed. 2d 564, 88 S. Ct. 548 (1967); Chewning v. Schlesinger, 471 F. Supp. 767, 774 (D.D.C. 1979). Finally, the purpose of the Act, to give judges broad discretion in fashioning sentences, suggests that implied exemptions from that authority ought to be narrowly construed.
Were this court to adopt the government's position, then its ability to devise flexible sentences in the interests of justice would be severely curtailed. Any community service condition can be given a monetary value. Under the government's logic any such condition could arguably be limited by the restitution section. Such a construction would severely impede judges from the "creative" sentencing referred to in United States v. Mitsubishi Int'l Corp., supra, 677 F.2d at 785 and United States v. William Anderson Co., supra, 698 F.2d at 913.
In narrowly construing the limitations of the restitution section of the Probation Act, this court holds that in an order of a non-monetary, community service condition, for the purposes of deterrence and rehabilitation, as well as to make symbolic restitution, the beneficiaries need not be those directly aggrieved by the violations so long as there is a reasonable relationship between them and the defendants' illegal conduct, and so long as the community service serves to reverse the damage done by that conduct.
The government also contends that the donation of baked goods sentence is controlled by the § 3651 provision that restitution is limited to the "actual damages" sustained by the "aggrieved parties." The court rejects the government's argument because as previously discussed, the sentences require the defendants to perform community service, but not to provide restitution. Thus, the limitation that the government seeks is strained and inapplicable. Even assuming arguendo that the sentence is controlled by this limitation, the court for two reasons finds the amount of the community service permissible. First, the government lacks standing to complain that the amount of an order of restitution is excessive. See Higdon v. United States, 627 F.2d 893, 899 n.14 (9th Cir. 1980). Second, the court finds that the amount of damages can not accurately be determined. The value of the community service required, however, even if added to the amount of the negotiated settlement in the private antitrust cases, is well within the actual damages sustained by the consuming public over nearly two decades of price fixing.
The sentences in this case were imposed in a complex situation, inviting the court to fashion "creative" sentences. See United States v. Mitsubishi Int'l Corp., supra, 677 F.2d at 788. The area in which these defendants operate suffers from high unemployment and an eroding tax base. To extract larger fines and remove these resources from this community which has for a long time suffered the injury of the violations, would be grossly unfair. Finally, although arrangements have been made for some of the "aggrieved parties" to receive restitution through settlements of civil actions, those who paid the largest part of the fixed prices, the ultimate consumers, remain uncompensated.
These sentences are designed to achieve the following objectives: 1) deterrence, 2) rehabilitation, 3) incorporation in the resolution of this case of as many components of a guilty plea as possible, 4) preservation of jobs at the defendants' plants, and 5) compensation of aggrieved parties. It is also hoped the donations will bring some sweetness to hungry people who probably have missed more than one opportunity to buy the defendants' products because the price, illegally set by the defendants, was too high.
Wherefore this court rejects the government's contention that a community service condition, other than one involving a purely monetary payment, is limited by the restitution section of the Probation Act.
The court concludes that the sentences are proper under the Probation Act. The government's application to correct the form of the sentence is granted. The government's contention that the beneficiaries of the community service ordered herein must be "aggrieved parties" within the meaning of § 3651 is rejected.