U.S. v. Winston, s. 1120

• Decision Date: 23 June 1977
• Docket Number: D,Nos. 1120,1121,s. 1120
• Citation: 558 F.2d 105
• Parties: 95 L.R.R.M. (BNA) 2877, 49 A.L.R.Fed. 601, 81 Lab.Cas. P 13,309 UNITED STATES of America, Appellee, v. Jerry WINSTON, Broome County Aviation, Inc., Commuter Airlines, Inc., and Theodore (Ted) Bell, Defendants-Appellants. ockets 76-1436, 76-1527.
• Court: U.S. Court of Appeals — Second Circuit

Page 105

558 F.2d 105

95 L.R.R.M. (BNA) 2877, 49 A.L.R.Fed. 601,

81 Lab.Cas. P 13,309

UNITED STATES of America, Appellee, v. Jerry WINSTON, Broome County Aviation, Inc., Commuter Airlines, Inc., and Theodore (Ted) Bell Defendants-Appellants.

Nos. 1120, 1121, Dockets 76-1436, 76-1527.

United States Court of Appeals Second Circuit.

Argued April 5, 1977.

Decided June 23, 1977.

Jay Topkis, New York City (Paul, Weiss, Rifkind, Wharton & Garrison, Marvin Wexler, M. Tracy Sillerman, New York City, of counsel), for defendants-appellants.

Arthur A. Chalenski, Jr., Asst. U. S. Atty., Syracuse, N. Y. (Paul V. French, U. S. Atty., N. D. N. Y., Albany, N. Y., Mark Vogel, Washington, D. C., of counsel), for appellee.

Before KAUFMAN, Chief Judge, VAN GRAAFEILAND, Circuit Judge, and POLLACK, District Judge. ^*

VAN GRAAFEILAND, Circuit Judge:

Appellants were convicted of violating § 2 of the Railway Labor Act, 45 U.S.C. § 152, which makes it a criminal offense for a railroad or airline to willfully influence or coerce its employees in matters involving unionization or employee representation. ¹ Because of errors in the District Court's charge to the jury, we reverse and remand for a new trial.

The Facts

Appellant Winston is the sole stockholder of appellant Broome County Aviation, Inc., and his wife is the sole stockholder of appellant Commuter Airlines, Inc. Both corporations are located in Binghamton, New York. Broome provides charter service, sells fuel and does aircraft maintenance. Commuter provides scheduled airline service to several nearby cities. Appellant Bell is the chief pilot for the combined operation, which is operated substantially as a single business entity. The company is relatively small in size, employing approximately two dozen pilots, together with the necessary mechanics and ground staff.

In the Fall of 1974, a representative of the pilots contacted the Airlines and Aero-space Employees Union, Teamsters Local 732, to explore the possibility of organizing a pilots' union. At an organizational meeting held on October 2, 1974, a sufficient number of authorization cards were signed to permit the Teamsters to petition the National Mediation Board for an election. The company was opposed to unionization and so indicated in several general meetings with the pilots at which appellants Winston and Bell spoke. Winston also met individually with a number of the pilots, seeking to gain their support. Despite these efforts, three-quarters of the pilots voted for the union, which was certified as the pilots' representative on December 4, 1974. During the months which preceded and followed the election, seven pilots were discharged two prior to the election and five subsequent thereto. On July 2, 1975, the indictment herein was filed.

Count One charged all of the defendants with an 18 U.S.C. § 371 conspiracy to violate the Railway Labor Act by threatening reprisal if the pilots organized, by asking the pilots for their ballots and by firing a number of them. Winston and the corporate defendants were charged on seven counts with interfering with the pilots' choice of representative and on seven counts with coercing against union membership. Each of these fourteen counts was based upon the discharge of a pilot. Appellants were convicted on all of these counts.

The Instructions to the Jury

Although Subsection Tenth of 45 U.S.C. § 152 was enacted in 1934, appellants are the first persons who have been tried criminally for violation of its provisions. The District Judge therefore had no helpful precedents to guide him and patterned his charge in the main upon one which would be appropriate in an N.L.R.A. § 8(a)(1) case, 29 U.S.C. § 158(a)(1). Unfortunately, cases decided under § 8(a)(1) do not reach the subject of criminal intent, and it was in this portion of his charge that the District Judge went astray.

Subsection Tenth proscribes "willful" failure to comply with the Act. The District Judge, however, charged the jury that the defendants were not required to know that their conduct violated the Railway Labor Act or any other law. He said that they only needed to be conscious of what they were doing and that their conduct was willful if it was performed knowingly, intentionally, purposefully, or deliberately, wholly or partly for the purpose of thwarting the objects of the law to prohibit employers from interfering with employees' free exercise of their protected rights to choose a representative, to organize and to bargain collectively with their employer.

The District Judge also instructed the jury that, although the Act does not prohibit an employer from discharging an employee, a discharge motivated wholly or partly by intention to punish the employee or retaliate or discriminate against him for exercising a statutorily protected right is prohibited. He charged that, if an employer knowingly and intentionally discharges an employee partly because of union activities and partly because of misconduct or loss of business, there is nevertheless a violation of the law. He said that, "even if there is otherwise a good and legally sufficient reason or justification for discharging an employee, the employer, nevertheless, violates the law by doing so if an intention to interfere with, influence or coerce an employee in exercising or because he had exercised a protected right, plays any part in the Defendant's motivation." We have concluded that these portions of the charge were prejudicially erroneous.

Wilfullness Under the Act

The general rule under the common law was that scienter was a necessary element to be proved in every crime. United States v. Balint, 258 U.S. 250, 251, 42 S.Ct. 301, 66 L.Ed. 604 (1922). "Actus non facit reum, nisi mens sit rea" ² is a descriptive quotation which garnished many opinions in the days when such Latin embellishments were the vogue. Although Congress has eliminated the requirement of criminal intent for certain offenses, see United States v. Park, 421 U.S. 658, 668, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975), mens rea continues to be "the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951). Where an "evil state of mind" is intended to be a prerequisite to guilt, Congress describes it by the use of such terms as "intentional", "willful", "knowing", "fraudulent" or "malicious". Morissette v. United States, 342 U.S. 246, 264, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

When used in a criminal statute, "(willful) generally means an act done with a bad purpose . . . without justifiable excuse . . . stubbornly, obstinately, perversely . . . ." United States v. Murdock, 290 U.S. 389, 394, 54 S.Ct. 223, 225, 78 L.Ed. 381 (1933) (citations omitted). "An evil motive to accomplish that which the statute condemns becomes a constituent element of the crime." Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). In short, the defendant's conduct must constitute a "voluntary, intentional violation of a known legal duty." United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976). Although Congress has, in malum prohibitum offenses, sometimes equated willfulness with purposefulness and awareness, as distinguished from negligence or inadvertence, United States v. Ricciardi, 357 F.2d 91, 99-100 (2d Cir., cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 540 (1966), we are satisfied that such was not its intention in this instance.

At a hearing on the proposed § 152 amendments held before the Senate Committee on Interstate Commerce on April 12, 1934, a railroad representative objected to the penalty provisions of Subsection Tenth. Responding to these objections, Joseph B. Eastman, Federal Coordinator of Transportation, testified on April 19, 1934 as follows:

Mr. Clement is much concerned about this penalty provision, and thinks it would require the presence of attorneys in negotiations between the men and the managements, in order that the railroad officers might have the safeguard of legal advice at all times. There would be no such need.

To abate Mr. Clement's alarm further, he should note that the penalty paragraph contains the word "willful." Experience has shown that it is a difficult matter to secure a conviction with that word in a statute and requires an array of most convincing evidence. If he will read the prohibitions to which they apply, I am sure that he will conclude that he can safely brave the dangers of these penalties without a lawyer constantly at his elbow to give him advice.

When questioned by the Committee Chairman as to whether without excising Subsection Tenth as Mr. Clement had recommended, something might be added "to show the liberal intent of Congress", Mr. Eastman pointed to the word "willful" and stated that "you have to have a most convincing presentation of evidence to secure conviction with it in there."

The paucity of criminal proceedings under § 152, when contrasted with the active pursuit of civil relief thereunder, ³ strongly supports appellants' contention that Congress intended criminal sanctions to apply only to the more egregious violations. Although the failure to enforce a statute over an extended period of time does not result in its repeal, District of Columbia v. John R. Thompson Co., 346 U.S. 100, 113-14, 73 S.Ct. 1007, 97 L.Ed. 1480 (1953), the "gloss which life has written upon it", Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254 (1940), indicates in this instance that strict construction of its terms is appropriate. Cf. James v. United States, 366 U.S. 213, 221, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961). ⁴

Insofar as the charge of criminal conspiracy is concerned, the provisions of the First Amendment lead to the same conclusion. Appellants were charged in the conspiracy count, not only with improper conduct,...