455 F.2d 216
4 ERC 1011, 2 Envtl. L. Rep. 20,090
UNITED STATES of America, Appellee,
v.
BEACON PIECE DYEING & FINISHING CO., Inc., Defendant-Appellant.
No. 427, Docket 71-2065.
United States Court of Appeals,
Second Circuit.
Argued Jan. 6, 1972.
Decided Feb. 1, 1972.
David Berg, New York City (Robert F. Little, Berg, Mezansky & Dorf, New York City, of counsel), for defendant-appellant.
T. Gorman Reilly, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., of counsel), for appellee.
Before FRIENDLY, Chief Judge, and MOORE and OAKES, Circuit Judges.
OAKES, Circuit Judge:
This case raises the simple but novel question whether a sentence to pay a fine in installments may-unlike a sentence to a prison term-be suspended after the judgment of conviction has been entered and the 120-day time limit within which sentence may be reduced under Fed.R.Crim.P. 35 has expired and a payment has been made on account of the fine.
Appellant attempts to avoid a $25,000 fine, levied under the Refuse Act of 1899, 33 U.S.C. Sec. 411, for ten separate substantive violations of the Act. 33 U.S.C. Sec. 407. The fine was originally imposed as a lump sum, but then District Judge Mansfield later allowed payment quarterly, in five installments of $5,000 each. After having paid the first $5,000 installment, appellant submitted a motion for suspension of the remainder of the fine1 which Judge Wyatt denied on the ground that the district court lacked power to grant such an application. We affirm.
The Probation Act of 1925 allows the district court to suspend the imposition or execution of sentence "[u]pon entering a judgment of conviction . . . ." 18 U.S.C. Sec. 3651. This is the only source of the federal courts' probationary powers. United States v. Murray, 275 U.S. 347, 357, 48 S.Ct. 146, 72 L.Ed. 309 (1928); Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). But cf. United States v. Benz, 282 U.S. 304, 309, 51 S.Ct. 113, 75 L.Ed. 354 (1931). Most previous cases arising under this statute have involved incarceration rather than fines, although fines are also included within its scope. United States v. Berger, 145 F.2d 888 (2d Cir. 1944), cert. denied, 324 U.S. 848, 65 S.Ct. 685, 89 L.Ed. 1408 (1945). Indeed, in this case Judge Mansfield suspended sentence as to fines totaling $100,000 in connection with appellant's conviction under counts 11 through 50. The crucial question, however, is when the district court may suspend a fine. There are no cases directly on point.
When a prison sentence is involved, the suspension authority ". . . terminates when the convicted defendant actually enters upon the service of his prison sentence." United States v. Ellenbogen, 390 F.2d 537, 541 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). See also Affronti v. United States, 350 U.S. 79, 83, 76 S.Ct. 171, 174, 100 L.Ed. 62 (1955) [". . . probationary power ceases with respect to all of the sentences composing a single cumulative sentence immediately upon imprisonment for any part of the cumulative sentence" (footnote omitted)]. Similarly we believe that authority terminates as to installment fines when the first installment has been paid, as it has here, since appellant's "service of sentence" has commenced. Appellant argues that the termination of authority to suspend was designed solely to prevent conflicts between district courts and the federal parole board, and that the rule should be restricted to cases of imprisonment. But suspension long after the sentencing proceeding would give fine-payers second or third chances to have their cases heard again before more sympathetic judges as well as duplicate the provisions for executive clemency. Cf. United States v. Murray, supra, 275 U.S. at 356-357, 48 S.Ct. 146. Since there is no congressional directive to the contrary, we affirm.
Bearing in mind, however, the stricture of United States v. Murray, supra at 357, 48 S.Ct. at 149, that we should seek ". . . to reconcile the provisions for probation, parole, and executive clemency . . .," we will continue the stay for sixty days, with leave to apply to this panel for a further extension for cause shown, so as to permit the defendant to make application for executive clemency under article II, Section 2, of the Constitution and pertinent regulations, 28 C.F.R. Sec. 1.1 et seq. We express no opinion whatsoever on the merits of any such application.
The apparent substantive basis of appellant's request for suspension is a combination of financial inability and cooperative attitude, including "substantial sums" expended to combat the pollution