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

• Decision Date: 01 December 1982
• Docket Number: Nos. 81-1753,81-1754,s. 81-1753
• Citation: 693 F.2d 919
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

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.

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.

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 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.

                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
                

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 they exercised their First Amendment rights to hold office, to engage actively in union affairs, and to make public statements on union activities. The district court denied the motion because the evidence adduced at a hearing on the issue did The district court found that the government selected Taylor and Florence for prosecution only because they were the leaders of an illegal strike and their prosecution might deter others from striking. The record amply supports the finding that Taylor and Florence were actively engaged in organizing and leading the strike. Taylor testified that he had arranged with the national office at PATCO to notify every member of the local union of the strike and had designated a committee for preparation of picket signs and banners. He also set up picketing schedules and testified that Florence had assisted him in these activities. Before and during the strike, both men made numerous public statements in their representative capacities.

not demonstrate impermissible selective prosecution. Applying the "clearly erroneous" standard, United States v. Wilson, 639 F.2d 500, 503 (9th Cir.1981), we affirm the court's ruling.

There is nothing constitutionally infirm in prosecuting leaders of an illegal strike. Indeed, it is quite rational to do so to enhance the deterrent effect of the enforcement procedure. See United States v. Ness, 652 F.2d 890, 892 (9th Cir.) (per curiam), cert. denied, --- U.S. ----, 102 S.Ct. 976, 71 L.Ed.2d 113 (1981). It is also quite rational for the government, in deciding whether or not to prosecute, to consider whether the potential defendants have, by their public statements or otherwise, made clear their actual or intended participation in the illegal activity. ⁵

Taylor and Florence were required to show that the government selected them from a larger group of non-prosecuted alleged violators ⁶ because of their exercise of a constitutional right. Wilson, 639 F.2d at 503. The district court found that the evidence did not support defendants' contention and we cannot say this finding is clearly erroneous.

Taylor and Florence contend that an affidavit filed with the district court by the government establishes that they were selected for prosecution because of their union offices, rather than for their leadership of the illegal strike. The affidavit, filed by the Assistant United States Attorney who decided to prosecute them, states that because Taylor and Florence, as president and vice-president of the local PATCO union, were the "presumptive" leaders of the strike, it was believed that their prosecution would deter others from leading such illegal activity. We are unwilling to conclude, however, that the general and somewhat ambiguous language of this affidavit establishes as a matter of law that the government decided to prosecute defendants for their associational rather than for their strike-related activities. Other evidence produced at the hearing showed far more than "presumptive" leadership of the strike by Taylor and Florence. In light of all the evidence, the finding of the...