
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-
