Opinion
No. 03-M-361 (CLP).
November 17, 2004
MEMORANDUM AND ORDER
On September 24, 2001, defendant Ralph Roper was arrested and charged with disorderly conduct, in violation of 38 C.F.R. §§ 1.218(a)(5) and (b)(11), based upon his conduct at the Brooklyn Veterans Affairs medical facility at 800 Poly Place, Brooklyn, New York. Following a bench trial before the undersigned, which was conducted on March 4, 2003 and continued on May 13, 2003, Mr. Roper was found guilty of disorderly conduct, in violation of 38 C.F.R. § 1.218. (See Order dated Nov. 24, 2003). Sentencing was scheduled for April 19, 2004.
Prior to sentencing, defendant submitted a letter dated March 5, 2004, in which he argued, among other things, that despite the penalty section of the regulation of conviction, which provides for a maximum fine of $250.00, the Schedule of Fines governing Magistrate Judges in the Eastern District of New York (the "Schedule of Fines") limits the fine applicable to defendant's offense to $25.00. (Def.'s Letter of March 5, 2004 at 3).
Defendant further argues that under the rules governing collateral forfeiture, the Court may not impose a fine that is greater than the $20.00 set by the Schedule of Fines as the collateral that may be forfeited in lieu of an appearance in this case. (Id.) Given that, no matter what fine this Court chooses to impose, Mr. Roper will be required to pay a $10.00 special assessment fee under 18 U.S.C. § 3013(a)(1)(A)(ii), defendant argues that the maximum amount of the fine that can be imposed in this case is $10.00, which represents the remaining fine once the $10.00 special assessment fee is subtracted from the $20.00 collateral forfeiture amount. (Id. at 3-4).
DISCUSSION
Turning first to defendant's claim that the Court is limited to imposing a fine no greater than the fines listed on the Schedule of Fines, this Court observes that the Schedule of Fines for the Eastern District of New York was last updated in 1984 and became effective in April 1985. At the time it was adopted, the fines set forth in the Schedule were based on the fines set forth in the relevant provisions of the Code of Federal Regulations. The government correctly contends that this Schedule of Fines is merely a guide and is not binding on the Court. (See Govt.'s Letter of April 19, 2004 at 3 n. 3). What governs and supercedes the Schedule of Fines are the relevant provisions of the Code of Federal Regulations, which have been updated periodically and which currently provide for a maximum fine of $250.00 for the violation at issue in Mr. Roper's case. See 38 C.F.R. § 1.218(b)(11).
On November 24, 1997, the Department of Veterans Affairs submitted a proposal to amend the schedule of fines for violations occurring at the Northport VA Medical Center in Northport, New York, noting that the schedule "had not been updated in at least 12 years and was not in line with other facilities in the county." Under these amendments, the proposed fine for disorderly conduct was set at $100, consistent with the fines then established by 28 C.F.R. § 1.218(b)(11).
Defendant, however, argues that the Court is limited to imposing a fine no greater than the amount established in the Schedule of Fines as the amount of collateral forfeiture available for this violation. (Def.'s Letter of March 5, 2004 at 3). Citing the decision of the district court in United States v. Porter, 513 F. Supp. 245 (D. Tenn. 1981), defendant argues that a sentence imposing a fine higher than the collateral forfeiture amount unfairly punishes the defendant for exercising his constitutional right to a trial. (Id. at 3-4). In Porter, the magistrate judge found the defendant guilty following trial and imposed a sentence of $150.00, although the collateral forfeiture rule that applied to the offense amounted to only $15.00. United States v. Porter, 513 F. Supp. at 246. The district court in Porter reduced the $150.00 fine to $30.00 so that defendants would not be "unnecessarily" discouraged from exercising their right to trial. Id. at 249; see also Scharf v. United States, 606 F. Supp. 379, 383 (E.D. Va. 1985) (holding that because the combined sentence of a fine of $25.00 plus a special assessment of $25.00 exceeds the $40.00 payment in lieu of appearance under that district's collateral forfeiture scheme, the provision "needlessly chills" the exercise of a defendant's right to trial).
The government correctly contends that neither of these cases, which are both approximately 20 years old, are controlling in this circuit. (Govt.'s Letter of April 19, 2004 at 3). Moreover, while the Local Rules of the United States District Courts for the Southern and Eastern Districts contain a "collateral forfeiture" rule, the rule has been found to be discretionary.See United States v. Brasch, No. 95 CR 865, 1996 WL 363177, at *2 (S.D.N.Y. July 1, 1996) (holding that the "Government is not required to permit the defendant to pay a collateral amount to dispose of the action").
Rule 58(d)(1) of the Federal Rules of Criminal Procedure specifies that "[i]f the court has a local rule governing forfeiture of collateral, the court may accept a fixed-sum payment in lieu of defendant's appearance and end the case, but the fixed sum may not exceed the maximum fine allowed by law." Former Local Civil Rule 11 provided that:
A person who is charged with a petty offense as defined in 18 U.S.C. § 1(3), or with violating any regulation promulgated by any department or agency of the United States government, may, in lieu of appearance, post collateral in the amount indicated in schedules filed in the office of the clerk of this court, waive appearance before a United State magistrate judge and consent to forfeiture of collateral.
(emphasis added).
The Local Rules Committee, in reviewing former Local Rule 11, recommended "that the reference to a schedule filed in the office of the Clerk of the Court be deleted, on the ground that such schedules are often not filed in the Clerk's office, and on the ground that as a practical matter the amount of the fine is set forth in the summons or other accusatory instrument." Committee Note to Local Rule 11. Thus, in April 1997, Local Rule 11 was replaced by Local Criminal Rule 58.2, which provides that:
A person who is charged with a petty offense as defined in 18 U.S.C. § 19, or with violating any regulation promulgated by any department or agency of the United States government, may, in lieu of appearance, post collateral in the amount indicated in the summons or other accusatory instrument, waive appearance before a United States magistrate judge, and consent to forfeiture of collateral.
(emphasis added).
This change in Local Rule 11 recognizes that the Code of Federal Regulations, which was promulgated by various agencies pursuant to statutory authority, sets the maximum fines for various types of conduct and that these amounts are adjusted periodically and are listed in the Code. Moreover, as the Committee Note indicates, the amount of the collateral is actually set at the time the summons is issued and the amount is listed on the summons by the arresting officer. See Committee Note to Local Rule 11.
It is clear that so long as the amount set as collateral on the summons does not exceed the maximum fine set by the Code of Federal Regulations, that collateral may be lawfully set by the arresting officer regardless of the fine set forth in the Schedule of Fines. The provisions of the Code of Federal Regulations supersede any advisory guidelines set forth in the Schedule of Fines, and this Court declines to apply the Schedule of Fines in this case.
Moreover, in determining Mr. Roper's sentence here, it is important to note that at the time his summons was issued, there was no collateral indicated on the summons by the arresting officer. As the court in Brasch noted, the payment of collateral to resolve a charge such as this cause of action is optional. The accused "may" pay rather than appear and the "Government is not required to permit the defendant to pay a collateral amount to dispose of the action." United States v. Brasch, 1996 WL 363177 at *2.
Since no collateral amount was set in the summons, this Court does not need to address the constitutional question raised in Porter and Scharf.
This Court agrees. Since no collateral amount was set forth in the summons, the Court is free to impose a fine up to the maximum of $250 as set forth in 38 C.F.R. § 1.218(b)(11), subject, of course, to consideration of the factors set forth in 18 U.S.C. §§ 3553, 3572.
These factors include, inter alia, the nature and circumstances of the offense, the characteristics and history of defendant, 18 U.S.C. § 3553(a)(1), the seriousness of the offense, the need to promote respect for the law, the need to provide adequate deterrence, 18 U.S.C. § 3553(a)(2), the defendant's income, earning capacity and financial resources, 18 U.S.C. § 3572(a)(1), and the burden the fine will impose on defendant or on those to whom he has financial commitments. 18 U.S.C. § 3572(a)(2). These various factors and others will be addressed at sentencing.
Accordingly, sentencing is set for December 17, 2004 at 9:00 a.m. before this Court at 225 Cadman Plaza East, Brooklyn, New York.