United States v. Chapdelaine

• Court: Court of Appeals for the First Circuit
• Decided: May 2, 1994
• Docket: 93-1792
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 93-1792

UNITED STATES,

                                      Appellee,

                                          v.

                                 GEORGE CHAPDELAINE,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Francis J. Boyle, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ___________________

               George Chapdelaine on brief pro se.
               __________________
               Edwin  J.  Gale,  United  States Attorney,  and  Michael  P.
               _______________                                  ___________
          Iannotti,  Assistant   United  States  Attorney,  on   brief  for
          ________
          appellee.

__________________
                                     May 2, 1994
                                  __________________

Per Curiam.   George Chapdelaine  is appealing  the
                      __________

            district court's order applying $22,300.46, which  was seized

            from his room  during a search in  1991, toward Chapdelaine's

            outstanding criminal fine.  We affirm.

                      In  1985,  Chapdelaine  was  convicted  of  a  drug

            offense, and  the district  court imposed imprisonment  and a

            $10,000 fine on him.  In 1993, the government moved to  apply

            the proceeds  of the cash it  had seized to the  fine and the

            interest  that had  accumulated  thereon.   As  of May  1993,

            Chapdelaine  owed a balance of $9,571.75 on the fine, and the

            government  claimed interest  of $13,338.59,  for a  total of

            $22,910.34.   At a hearing,  the government claimed  that the

            Criminal Fine  Enforcement Act of 1984,  formerly codified at

            18 U.S.C.    3565(c)(1), required interest to  be assessed on

            Chapdelaine's outstanding criminal fine, and submitted a copy

            of the statute to the court.  

                      Chapdelaine  denied  that  any  statute  authorized

            interest on criminal fines prior to 1987.  He told the  court

            that  some of  the money  seized by  the government  had come

            either from his pension  or from work he had  performed after

            being released from prison; he also acknowledged that some of

            the money  represented gambling proceeds.  He  argued that it

            would  be unfair  for the  government to  apply funds  he had

            earned  toward  his fine.   Finally,  he  said that  the fine

-2-

should  never have been imposed in 1985 since he was indigent

            at that time.

                      In response  to Chapdelaine's arguments,  the court

            stated that the question of Chapdelaine's ability to pay  the

            fine  when imposed had been "resolved long since."  It sought

            to ascertain how Chapdelaine could have acquired such a large

            sum of money by 1991  when he had told the court in 1990 that

            he was indigent.  It expressed its doubt that the money found

            in  Chapdelaine's room represented  his savings  since 1990,1

            and  noted that  Chapdelaine  had had  many opportunities  to

            contest the  fine and to  seek its  remission in court.   The

            court said that in fairness  Chapdelaine should pay the fine,

            particularly  in   view  of   the  fact   that  Chapdelaine's

            challenges  to his  fine had  been underwritten  by taxpayers

            whose taxes  fund the court  system.  Accordingly,  the court

            ordered   the   seized   money   applied   to  satisfy   both

            Chapdelaine's fine and the interest thereon.

                      Chapdelaine makes several arguments on appeal, none

            of  which have merit.  First, he  says that the court did not

            rule  on the question whether interest could be assessed on a

            criminal  fine imposed  in 1985,  and that  the court  had no

            authority to assess interest on the original fine.   Although

____________________

            1.  According to an undated  personal financial statement  in
            the   record,   which   apparently  reflected   Chapdelaine's
            financial status  as of late 1989,  Chapdelaine was receiving
            $758/month in  social security and  veterans pension benefits
            and had monthly expenses totalling approximately $710.

                                         -3-

the court did not  specifically hold that statutory authority

            existed for assessing interest, by granting  the government's

            motion  it  clearly  indicated   that  it  had  accepted  the

            government's  argument that interest was authorized under the

            Criminal Fine Enforcement Act of  1984 ("Act").  Moreover, as

            Chapdelaine  acknowledges,  in   United  States  v.  Atlantic
                                             ______________      ________

            Disposal  Service,  Inc., 887  F.2d  1208,  1209-11 (3d  Cir.
            ________________________

            1989), the Third Circuit  analyzed the criminal fine statutes

            in existence for the  1984-87 time period and concluded  that

            the interest provision of the Act applied to crimes committed

            between December 31,  1984 and  November 1, 1987.   See  also
                                                                ___  ____

            United States v. Finley,  783 F. Supp. 1123, 1126  (N.D. Ill.
            _____________    ______

            1991)  (applying that provision to a fine imposed for a crime

            committed before November 1, 1987). 

                      Although  Chapdelaine  appears   to  question   the

            court's   analysis  of  Congressional  intent,  his  argument

            apparently relates to a different statute, section 238 of the

            Sentencing Reform  Act, which had also  provided for interest

            on  fines,  but which  had been  repealed  by the  Act.   See
                                                                      ___

            Atlantic Disposal Service, supra, 887 F.2d at 1210 & n.6.  We
            _________________________  _____

            accept the  Third Circuit's analysis  in this case  and agree

            that the  interest provision  of  the Act,  which applied  to

            offenses committed after December 31,  1984, see P.L. No. 98-
                                                         ___

            596,   10,  1984 U.S.C.C.A.N.  (98 Stat.) 3138,  and was  not

            repealed  until November 1, 1987,  see 18 U.S.C.    3561-3580
                                               ___

-4-

(Supp.  V 1988) (note on  repeal of Chapter  227), applied to

            thecriminalfine imposedon Chapdelaineforhis 1985drug offense.

                      Second, Chapdelaine argues  that the district court

            erred  by failing  to consider  his claim  that the  fine was

            illegal  when imposed because he was indigent.  The court did

            consider that  claim, but rejected it,  because that question

            had  already been  decided  against  Chapdelaine in  previous

            proceedings.   Chapdelaine does not dispute  that prior court

            proceedings had determined that  he could pay the fine  as of

            the  time it  was  imposed.   The  record does  not  indicate

            whether  Chapdelaine  challenged his  fine  in appealing  his

            conviction to this court or  whether his subsequent motion to

            reduce the fine alleged inability  to pay at the time  he was

            sentenced.   In any event, in  reviewing Chapdelaine's motion

            to remit his fine  in 1990 the court squarely  considered and

            rejected  Chapdelaine's claim  that he  had been  indigent in

            1985  when the fine was  imposed on him;  Chapdelaine did not

            appeal that determination.2   Finally,  Chapdelaine  suggests

____________________

            2.  The docket sheet from Chapdelaine's underlying conviction
            indicates that his conviction (and presumably sentencing) had
            been  affirmed in 1986, and  that soon thereafter  he filed a
            motion for a  reduction of  his sentence.   The docket  sheet
            indicates that the court's order denied his request to reduce
            his fine and  to remit  a special assessment  which had  also
            been imposed on  him, but  does not make  clear what  grounds
            Chapdelaine had alleged in  support thereof.  In 1990,  after
            Chapdelaine was released from prison, a hearing was held on a
            motion  he  brought  to   remit  his  fine,  and  Chapdelaine
            testified that he  could not pay the fine at  that time.  The
            magistrate agreed, but concluded that Chapdelaine's "claim of
            indigency  at the time of his arrest is inconsistent with the

                                         -5-

that the court  granted the government's  motion in order  to

            punish  him for seeking  redress of his  grievances in court.

            The transcript  of the  hearing indicates quite  clearly that

            the court had  no punitive  intent, but that  its purpose  in

            describing  Chapdelaine's  recourse  to  the  courts  was  to

            demonstrate that there was no unfairness in requiring  him to

            pay his fine.  

                      Although  Chapdelaine raises  additional arguments,

            we  decline to  consider them,  either because they  were not

            raised  in  his  initial  brief,  or because  they  were  not

            presented  to the district court.  See Playboy Enterprises v.
                                               ___ ___________________

            Public Service  Commission of  Puerto Rico,  906 F.2d  25, 40
            __________________________________________

            (1st Cir.),  cert. denied, 498 U.S. 959  (1990) (an appellant
                         ____________

            waives issues  not adequately  raised in its  initial brief);

            United States v. Curzi, 867 F.2d 36, 44 (1st Cir.  1989) ("It
            _____________    _____

            has long been  the practice in this circuit that an issue not

____________________

            facts of his case, .  . . wherein [he] was found at  the time
            of  his arrest  with $6,000  in his suitcase"  (citing United
                                                                   ______
            States v. Chapdelaine, 616 F. Supp. 522 (D.R.I. 1985), aff'd,
            ______    ___________                                  _____
            795  F.2d 75 (1st Cir.  1986) (table)).   The magistrate also
            recommended dismissal of Chapdelaine's motion to remit to the
            extent  it was based on  the claim that  the sentencing judge
            had  not  considered  the factors  in  18  U.S.C.    3622  in
            imposing the fine,  because the motion was  untimely; he also
            found  that no other  statutory basis for  remitting the fine
            existed.    After Chapdelaine  failed  to  object, the  court
            issued  an  order  accepting  the   magistrate's  report  and
            recommendation.  Subsequently, however, a hearing was held on
            the report, and Chapdelaine again testified,  apparently only
            as to his ability to then pay the fine.  The court thereafter
            denied  his motion  to  remit his  fine  since there  was  no
            statutory basis for doing so.  Chapdelaine did not appeal.

                                         -6-

presented in the district court will not be addressed for the

            first time on appeal.").  

                      Affirmed.
                      ________

-7-