U.S. v. Taylor, Nos. 81-1753

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtBefore FARRIS and CANBY; CANBY
Citation693 F.2d 919
Parties112 L.R.R.M. (BNA) 2068 UNITED STATES of America, Plaintiff-Appellee, v. William T. TAYLOR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Billy J. FLORENCE, Defendant-Appellant.
Decision Date01 December 1982
Docket NumberNos. 81-1753,81-1754

Page 919

693 F.2d 919
112 L.R.R.M. (BNA) 2068
UNITED STATES of America, Plaintiff-Appellee,
v.
William T. TAYLOR, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Billy J. FLORENCE, Defendant-Appellant.
Nos. 81-1753, 81-1754.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted May 5, 1982.
Decided Dec. 1, 1982.

Page 920

Michael J. Brady, Little, Fisher, Brady, Bromley & Siegel, P.C., Tucson, Ariz., for defendant-appellant.

Susan Ehrlich, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before FARRIS and CANBY, Circuit Judges, and WHELAN, * District Judge.

Page 921

CANBY, Circuit Judge:

William Taylor and Billy Florence appeal their jury convictions for participating in a strike against the federal government in violation of 18 U.S.C. Sec. 1918(3). We affirm.

I. FACTS

Taylor and Florence were president and vice president, respectively, of the Professional Air Traffic Controllers Organization (PATCO) Local 572. They were employed by the Federal Aviation Administration as air traffic controllers in Tucson, Arizona. On August 3, 1981, the national president of PATCO announced a nationwide strike. Of the forty-one Tucson air traffic controllers who failed to report to work during the strike, only Taylor and Florence were prosecuted. On August 4, 1981, the government issued criminal complaints against them. On August 25, a grand jury returned indictments charging Taylor with striking on August 8 and Florence with striking on August 3. The cases were consolidated for trial.

Defendants moved to dismiss the indictments because of infirmities in the charging statute and on the grounds of selective prosecution. The district court denied the motions and defendants proceeded to trial. After the jury returned guilty verdicts, the judge suspended imposition of sentence and placed defendants on one year's probation.

On appeal, Taylor and Florence contend that the district court erred in refusing to dismiss the indictments. They also allege numerous errors at their trial. None of their contentions requires reversal.

II. 18 U.S.C. Sec. 1918(3)

Severance

Defendants moved to dismiss the indictments on the ground that the charging statute, 18 U.S.C. Sec. 1918(3), prohibiting strikes against the federal government, is unenforceable because a portion of its defining statute, 5 U.S.C. Sec. 7311(3), dealing with assertion of the right to strike, has been found unconstitutional. The district court properly denied the motion.

Under 5 U.S.C. Sec. 7311(3), a person may not hold or accept employment with the federal government if he "participates in a strike, or asserts the right to strike" against the federal government. Section 1918(3) of title 18 renders this conduct criminal:

Whoever violates the provisions of section 7311 of title 5 that an individual may not accept or hold [federal employment] if he--

....

(3) participates in a strike, or asserts the right to strike, against the [federal government] ...

....

shall be fined not more than $1,000 or imprisoned not more than one year and a day, or both.

Appellants contend that the clause in 5 U.S.C. Sec. 7311(3) concerning assertion of the right to strike is unconstitutional. National Association of Letter Carriers v. Blount, 305 F.Supp. 546 (D.D.C.1969), appeal dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970). They argue that this unconstitutional portion cannot be severed from the accompanying clause dealing with participation in a strike and that the whole statute therefore must fall. They further contend that since Sec. 1918 depends on Sec. 7311 for its definitions, it is meaningless and unenforceable against them.

We agree that assertion of the right to strike is protected by the First Amendment. We do not agree, however, that 5 U.S.C. Sec. 7311 or 18 U.S.C. Sec. 1918 is thereby rendered totally invalid. The Supreme Court has affirmed summarily a decision upholding the constitutionality of 18 U.S.C. Sec. 1918(3) insofar as it prohibits strikes against the federal government. United Federation of Postal Clerks v. Blount, 325 F.Supp. 879 (D.D.C.), aff'd mem., 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971). The court in United Federation of Postal Clerks expressly noted that the portion of 18 U.S.C. Sec. 1918(3) inhibiting assertion of the right to strike was invalid. Id. at 881. Nevertheless, the court severed this part by implication and upheld the prohibition against participation in strikes.

We too are satisfied that the statutes are severable. "Unless it is evident that the

Page 922

legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law." United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968), quoting Champlin Refining Co. v. Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed.2d 1062 (1932). We find it quite unlikely that Congress would have chosen to discard the prohibition against participation in a strike if it could not have included the clause prohibiting assertion of the right to strike. See Jackson, 390 U.S. at 586, 88 S.Ct. at 1218; United States v. Hicks, 625 F.2d 216, 221 n. 10 (9th Cir.1980), rev'd on other grounds, 450 U.S. 1036, 101 S.Ct. 1752, 68 L.Ed.2d 233 (1981). The legislative history evinces no contrary congressional intent. 1

Once the offending clause is removed, the remainder is fully operative. 2 The assertion of the right to strike is logically distinct from participation in a strike, and the clauses are in the disjunctive. We accordingly conclude that the prohibition against striking contained in 18 U.S.C. Sec. 1918(3) is valid and enforceable.

Vagueness

Taylor and Florence next moved to dismiss the indictments on the ground that 18 U.S.C. Sec. 1918 is void for vagueness. They argued that although Sec. 1918 requires a person to "hold a position" with the federal government before liability may attach, the statute is unclear as to who "holds a position." The district court ruled that the only reasonable interpretation of this provision is that a person "holds a position" with the federal government when he is currently a federal employee. 3 We agree.

The wording of the statute is sufficient to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden. 4 This is all the Constitution requires. Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964) quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954).

III. SELECTIVE PROSECUTION

Taylor and Florence also moved to dismiss the indictments because of selective prosecution. They argued that the government deliberately targeted them for prosecution because...

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13 practice notes
  • U.S. v. Scott, No. 3:95cv1216 (AHN).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 2, 1997
    ...of an organization or group, this fact alone would not support a claim of selective prosecution. See, e.g., United States v. Taylor, 693 F.2d 919 (9th Cir.1982) (holding that it was permissible to prosecute strike leader because it might deter others from striking). See also United States v......
  • United States v. Rundo, No. 19-50189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 4, 2021
    ...to or guaranteed by the United States .’ "24 We also have applied the severance principle in that manner. See United States v. Taylor , 693 F.2d 919, 921–22 (9th Cir. 1982) (severing a single clause from a statutory provision); cf. Nat'l Mining Ass'n v. Zinke , 877 F.3d 845, 865–66 (9th Cir......
  • Boston Teachers Union, Local 66, AFT, AFL-CIO v. Edgar, AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 27, 1986
    ...their right to strike. See Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); see also United States v. Taylor, 693 F.2d 919 (9th Cir.1982); Aurora Education Association East v. Board of Education, 490 F.2d 431, 434 (7th Cir.1973), cert. denied, 416 U.S. 985, 94 S.C......
  • Owens v. Ventura County Superior Court, No. CV 98-3964 AHM(RC).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 9, 1999
    ...decision to prosecute also may not be based upon exercise of protected statutory and constitutional rights); United States v. Taylor, 693 F.2d 919, 923 (9th Cir.1982) (requiring defendant show Government selected him from larger group of non-prosecuted alleged violators because of his exerc......
  • Request a trial to view additional results
13 cases
  • U.S. v. Scott, No. 3:95cv1216 (AHN).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 2, 1997
    ...of an organization or group, this fact alone would not support a claim of selective prosecution. See, e.g., United States v. Taylor, 693 F.2d 919 (9th Cir.1982) (holding that it was permissible to prosecute strike leader because it might deter others from striking). See also United States v......
  • United States v. Rundo, No. 19-50189
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 4, 2021
    ...to or guaranteed by the United States .’ "24 We also have applied the severance principle in that manner. See United States v. Taylor , 693 F.2d 919, 921–22 (9th Cir. 1982) (severing a single clause from a statutory provision); cf. Nat'l Mining Ass'n v. Zinke , 877 F.3d 845, 865–66 (9th Cir......
  • Boston Teachers Union, Local 66, AFT, AFL-CIO v. Edgar, AFL-CI
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 27, 1986
    ...their right to strike. See Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); see also United States v. Taylor, 693 F.2d 919 (9th Cir.1982); Aurora Education Association East v. Board of Education, 490 F.2d 431, 434 (7th Cir.1973), cert. denied, 416 U.S. 985, 94 S.C......
  • Owens v. Ventura County Superior Court, No. CV 98-3964 AHM(RC).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 9, 1999
    ...decision to prosecute also may not be based upon exercise of protected statutory and constitutional rights); United States v. Taylor, 693 F.2d 919, 923 (9th Cir.1982) (requiring defendant show Government selected him from larger group of non-prosecuted alleged violators because of his exerc......
  • Request a trial to view additional results

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