U.S. v. Martinez
| Citation | 686 F.2d 334 |
| Decision Date | 24 September 1982 |
| Docket Number | No. 81-3538,81-3538 |
| Parties | 111 L.R.R.M. (BNA) 2561 UNITED STATES of America, Plaintiff-Appellee, v. Jose L. MARTINEZ, et al., Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Hess & Washofsky, Dennis M. Angelico, Bernard E. Burk, New Orleans, La., for defendants-appellants.
Howat Peters, Michael Schatzow, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GOLDBERG, WILLIAMS, and GARWOOD, Circuit Judges.
This appeal from the conviction of six defendants for criminal contempt arises from the publicized strike conducted by the Professional Air Traffic Controllers Organization (PATCO) against the Federal Aviation Administration (FAA) in 1981. Each of the six defendant-appellants-Jose Martinez, John Stroh, Paulette Charbonnet, Edward Keiser, Frederick Renoudet, and Gary Frey-was at the time the dispute arose an officer in one of two PATCO locals involved in this action. All were convicted of criminal contempt on the grounds that they failed to honor temporary restraining orders issued by the Federal District Court for the Eastern District of Louisiana on August 3-4, 1981. After reviewing the evidence and arguments on both sides, we conclude that the record cannot support the convictions of Appellants Martinez and Stroh. The convictions of the remaining four appellants, however, must stand.
The substantially identical temporary restraining orders issued by the district court on August 3 and 4 enjoined all officers, members, and agents of PATCO Locals 430 and 431, as well as all other FAA employees, from
a. in any manner, calling, commencing, causing, authorizing, continuing, encouraging, ordering, aiding, abetting, participating in, engaging in, or taking any part in any strike, work stoppage or slowdown, or other concerted failures by FAA employees to report to work or work in a required manner, or any interference, by means of picketing or otherwise, with or obstruction of the movement or operation of any aircraft in air commerce or air transportation at any traffic facility located within this District at which employees of the FAA work or interference with or obstruction to the application of the safety standards or procedures established by the FAA for the regulation and control of air traffic in the United States;
b. in any manner, interfering with or obstructing the orderly continuance of air traffic within this District;
c. taking any action which would interfere with this Court's jurisdiction in this case; provided however, that nothing in this paragraph shall make the voluntary termination of one's labor or employment by the United States of America, on one's own initiative and not in concert with the defendants herein, an illegal act; and
d. distributing, disbursing or expending any funds from the Controllers Benefit Fund (Strike Fund) in furtherance of the activities restrained and enjoined herein.
The orders also directed the defendants affirmatively to:
a. instruct immediately all members of PATCO and any and all employees of the FAA, whether or not affiliated with PATCO, and all other persons in active concert or participation with the defendants or any of them, within this District, to resume their normal employment;
b. take all action which may be necessary to insure that such instructions are carried out, including but not limited to, posting and continuing to post a copy of any Court injunction or restraining order that may issue in this case at all facilities within this District normally used and/or occupied by members of PATCO or other FAA employees either in the performance of their duties as air traffic controllers or as meeting places for the conducting of the business of PATCO located within this District;
c. inform all officers of PATCO within this District of the contents of any injunction or restraining order issued in this case; and
d. make good faith efforts to inform all members of PATCO and those persons in active concert or participation with the defendants, within this District, of the contents of any injunction or restraining order issued in this cause.
Each of the appellants received a copy of the applicable order.
On August 14 and 21, 1981, the government filed separate motions for criminal contempt against the defendants, alleging that each had intentionally, willfully, wrongfully, and unlawfully violated the court's orders by failing to report to work as scheduled. At a hearing held on August 27, the government produced the tower chiefs in charge of air traffic operations at New Orleans International Airport and Lakefront Airport, the facilities at which the defendants were employed. These witnesses testified that none of the defendants had reported for work at the scheduled time following service of the court's order, that none had been on annual leave or sick leave, and that no other circumstances known to the tower chiefs had warranted these absences. The government also introduced into evidence television videotapes of picketing conducted by PATCO. The tower chiefs were able to identify defendants Charbonnet, Keiser, Frey, and Renoudet as participants in these prohibited activities.
On August 28, the court found each defendant to be in criminal contempt beyond a reasonable doubt. The court concluded that the defendants' failure to return to work represented willful participation by each defendant in the prohibited work stoppage. In response to the defendants' argument that the government should have been required to show that each defendant had not resigned, the court observed that resignation requires an affirmative act by the employee and that the tower chiefs necessarily would have known of any resignations. The court further pointed out that defendants offered no excuse for their failure to report and
The court sentenced the defendants to six months of imprisonment, suspended on the condition that each complete a total of 312 hours of public service within the six months.
Appellants now raise eight points of error on appeal. We address them in the order presented by appellants.
Appellants' first contention is that the district court committed reversible error in accepting the transfer of these actions from the judges to which they were originally assigned and consolidating them into a single proceeding. Briefly, the argument is that these cases originally were docketed in various sections of the Eastern District of Louisiana and that neither the Federal Rules of Criminal Procedure nor the Local Rules of the United States District Court for the Eastern District of Louisiana contain a rule specifically providing for transfer and consolidation of criminal cases.
As the government points out, however, this Court has held that
(d)istrict judges may by rule, order or consent transfer cases between themselves.... Each judge of a multi-district court has the same power and authority as each other judge.... Moreover, the District Judges have the inherent power to transfer cases from one to another for the expeditious administration of justice.
United States v. Stone, 411 F.2d 597, 598 (5th Cir. 1969). 1
As for the consolidation, joinder of these defendants was appropriate since they were "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." See Fed.R.Crim.P. 8(b), 13, 14. The defendants were charged with contempt for having participated in the same prohibited activities in violation of the same or identical restraining orders. Most important, defendants have alleged no prejudice flowing from the joinder. Indeed, they have conceded the absence of any such prejudice from the district court itself. 2
For these reasons, we conclude that the transfer and consolidation of these actions were proper.
The government's motions for criminal contempt, with one exception, 3 were filed on August 14, 1981. On August 24, counsel for appellants filed a motion for continuance in the district court. The motion stated that appellants' counsel of record in the civil proceedings against PATCO, Dennis Angelico, had recommended retention of Bernard Burk, an attorney more experienced in defense of criminal cases, to represent appellants in the contempt action. The motion recited further that Burk had been involved in another trial and had been unable to meet and interview his clients until August 24. Burk and Angelico reurged the motion for continuance at the outset of the contempt hearing on August 27. The district court denied the motion, explaining that the ten-day period which separated the filing of the government's motions and the original motion for continuance had provided adequate time for the preparation of a defense. That appellants had elected during that time to retain an additional attorney who was busily engaged elsewhere was not, the court concluded, an appropriate reason for the granting of the continuance.
As we have stated constantly, a motion for continuance is addressed to the sound discretion of the trial court. We will not disturb the court's decision absent an abuse of discretion. United States v. Uptain, 531 F.2d 1281, 1285 (5th Cir. 1976). In reviewing appeals from the denial of a motion for continuance, we consider the particular circumstances of each case, especially the reasons that appellant presented to the trial court at the time the request was denied. 4 Id.
In this case, we can find no abuse of discretion. Rule 42(b) of the Federal Rules of Criminal Procedure requires provision of a "reasonable time...
To continue reading
Request your trial
-
In re Keniston
...upheld against assertions that it was invalid because it provides no set guidelines for the court's discretion. United States v. Martinez, 686 F.2d 334 (5th Cir.1982). The Court found no violation of due process and held that statutory limitations on the contempt power are not constitutiona......
-
United States v. Persico
...against multiple defendants is Rule 8(b). United States v. Cannington, 729 F.2d 702, 710 (11th Cir.1984); United States v. Martinez, 686 F.2d 334, 338 (5th Cir.1982); Daley v. United States, 231 F.2d 123, 125 (1st Cir.) (per curiam), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484......
-
Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc.
...are not to be encouraged, no reversible error is present under the circumstances of this particular case. Cf. United States v. Martinez, 686 F.2d 334 (5th Cir., 1982); United States v. Stone, 411 F.2d 597, 598 (5th Cir. 1969) (District judges may transfer cases between themselves for the ex......
-
Tucker v. Defense Mapping Agency
...See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244-45, 79 S.Ct. 773, 779-80, 3 L.Ed.2d 775 (1959); United States v. Martinez, 686 F.2d 334, 342 (5th Cir.1982). And, even if such an intention is not demonstrably apparent, the preclusive effect of the CSRA would be the same if......
-
ON REASONABLENESS: THE MANY MEANINGS OF LAW'S MOST UBIQUITOUS CONCEPT.
...235 (1994). (100.) See United States v. O'Day, 667 F.2d 430, 434 (4th Cir. 1981). (101.) See id. (102.) See United States v. Martinez, 686 F.2d 334, 339 (5th Cir. (103.) See United States v. Alter, 482 F.2d 1016, 1023 (9th Cir. 2015). (104.) See, e.g., First RepublicBank Fort Worth v. Norgl......
-
"they Outlawed Solidarity!"
...subject matter is irrelevant to the point about the relief available. 59. Id. at *9 (emphasis added). 60.See United States v. Martinez, 686 F.2d 334, 345 (5th Cir. 1982). 61. Id. (emphasis added) (citing New Orleans Steamship Ass'n v. Gen. Longshore Workers, 626 F.2d 455, 463 (5th Cir. 1980......