United States v. McDonald

• Citation: 553 F. Supp. 1003
• Decision Date: 05 January 1983
• Docket Number: Crim. A. No. H-81-132.
• Parties: UNITED STATES of America, Plaintiff, v. James E. McDONALD, Defendant.
• Court: U.S. District Court — Southern District of Texas

553 F. Supp. 1003

UNITED STATES of America, Plaintiff, v. James E. McDONALD, Defendant.

Crim. A. No. H-81-132.

United States District Court, S.D. Texas, Houston Division.

January 5, 1983.

George A. Kelt, Jr., Asst. U.S. Atty., Daniel K. Hedges, U.S. Atty., Houston, Tex., for plaintiff.

Roger B. Greenberg, Mark S. Finkelstein, Houston, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

McDONALD, District Judge.

Introduction

On August 31, 1981, defendant was indicted for willfully participating in a strike against the United States on August 3, 1981, in violation of Section 7311 of Title 5, United States Code.¹ On September 16, 1982, defendant moved to dismiss the indictment. Having determined that defendant had made a threshold showing of selective prosecution, see, United States v. Saade, 652 F.2d 1126, 1135 (1st Cir.1981),² the Court granted defendant's request for a hearing on his Motion to Dismiss. At the hearing held on November 30, 1981, defendant presented testimony of four witnesses: a television news reporter, two FBI agents, and the United States Attorney for the Southern District of Texas. The government offered no testimony. The parties subsequently submitted numerous briefs and letters in support of their respective positions.

Defendant moves to dismiss the indictment on three grounds: (1) that it does not state facts sufficient to constitute a federal offense because 18 U.S.C. § 1918, read in conjunction with 5 U.S.C. § 7311, states a condition of public employment but does not prohibit strikes; (2) that 18 U.S.C. § 1918 is unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment of the United States Constitution; and (3) that the Department of Justice has intentionally and purposefully discriminated against him, in violation of the Equal Protection Clause of the Fifth Amendment of the United States Constitution, by selecting him for prosecution on the basis of his exercise of rights guaranteed by the First Amendment.

I.

The Court finds defendant's first and second arguments to be without merit and will dispose of them summarily. Title 18 U.S.C. § 1918, on its face, is clearly a criminal statute. Title 18 of the United States Code is entitled "Crimes and Criminal Procedures" and it concerns criminal offenses exclusively, not the administration of the federal government or conditions of employment. Violation of Section 1918 brings the criminal penalties of a fine and imprisonment. As the court noted in United States v. Haggerty, 528 F.Supp. 1286 (D.Cal.1981), although there have been no reported prosecutions under the statute prior to its application to the August 3, 1981, P.A.T.C.O. strike, courts in considering injunctions against such strikes, have indicated that the statute is criminal in nature. See, e.g., Air Transport Association of America v. P.A.T.C.O., 516 F.Supp. 1108, 1110 (E.D.N.Y.1981); United States v. P.A. T.C.O., 504 F.Supp. 432, 440 (N.D.Ill.1980) rev'd on other grounds 653 F.2d 1134 (7th Cir.1981); Air Transport Association of America v. P.A.T.C.O., 453 F.Supp. 1287, 1293 n. 8 (E.D.N.Y.1978) aff'd 594 F.2d 851 (2d Cir.1978), cert. denied 441 U.S. 944, 99 S.Ct. 2163, 60 L.Ed.2d 1046 (1979); Air Transport Association v. P.A.T.C.O., 313 F.Supp. 181, 185 (E.D.N.Y.1970) vacated in part on other grounds sub nom. United States v. P.A.T.C.O., 438 F.2d 79 (2d Cir. 1970) cert. denied 402 U.S. 915, 91 S.Ct. 1373, 28 L.Ed.2d 661 (1971).

The Court is equally unpersuaded by defendant's argument that the statute is void for vagueness. "Accept" and "hold," as the words are used in the statute, give persons of ordinary intelligence fair notice that the refusal to provide services by an employee who has accepted or holds a position in the federal government is forbidden by 5 U.S.C. § 7311(3) and criminalized by 18 U.S.C. § 1918. See United Federation of Postal Clerks v. Blount, 325 F.Supp. 879, 884-85 (D.D.C.1971) aff'd mem 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971).

II.

A.

In considering defendant's selective prosecution defense, the Court is, at the outset, wary of overstepping the boundary which separates judicial from executive power, cognizant that "`as an incident of the constitutional separation of powers, ... the courts are not free to interfere with the free exercise of the discretionary powers of the attorneys of the United States over criminal prosecutions.'" United States v. Kelly, 556 F.2d 257, 264 (5th Cir.1977), cert. denied 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d 763 (1977), quoting United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). Nevertheless, the law provides a defendant relief from discriminatory prosecution. In United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir.1978), the Court of Appeals for the Fifth Circuit adopted the test of discriminatory prosecution set forth in United States v. Berrios, 501 F.2d 1207, 1211 (2nd Cir.1974):

To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as `intentional and purposeful discrimination.'

Once defendant makes out a prima facie case, the burden then shifts to the government to prove that the selection was based on non-discriminatory grounds. In the cases involving discrimination in criminal prosecution, the Courts have not clearly delineated the standard or sufficiency of proof which the government must meet. For example, the court held on the facts presented in United States v. Falk, 479 F.2d 616, 620-21 (7th Cir.1973), "when a defendant alleges intentional purposeful discrimination and presents facts sufficient to raise a reasonable doubt about the prosecutor's purpose," the Court may no longer presume the prosecution was "undertaken in good faith and in non-discriminatory fashion ...." Rather, "it is incumbent upon the government to come forward with evidence ... or otherwise explain why defendant is being singled out for prosecution ...." Id. at 621. The Court, thus, indicated that the government had a burden of production rather than persuasion. However, it stated at another point in the decision that after plaintiff makes out a prima facie case, "the burden of going forward with proof of nondiscrimination will then rest on the government," and "the seemingly inherent discrimination against defendant in prosecuting him for insisting on his claim as a conscientious objector required the government to present compelling evidence to the contrary if its burden is to be met." Id. at 624. Moreover, in Berrios, 501 F.2d at 1212, n. 4, the United States Court of Appeals for the Second Circuit contrasted "the quantum of proof required to support merely an order for evidentiary production," at issue in that case, to the issue in Falk where defendant's prima facie case of selective prosecution justified "a shift in the burden of proof to the government — i.e., the burden of proving that the decision was free of discriminatory taint," characterizing the Berrios issue as "of far less serious consequence to the government than is shifting the ultimate burden of proof." (emphasis added)

Discriminatory prosecution constitutes a denial of equal protection in violation of the Fifth Amendment to the United States Constitution.

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886). In equal protection challenges to employment actions rather than criminal prosecutions, courts have held that the burden of persuasion shifts to defendant to prove that the action of which plaintiff complains would have occurred even absent the protected conduct. See e.g., Heit v. Bugbee, 494 F.Supp. 66 (E.D.Mich.1980); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Arlington Heights v. Metro Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); and University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). In Mt. Healthy, after plaintiff showed his constitutionally protected conduct was a substantial or motivating factor in the employer's decision, the ultimate burden of persuasion shifted to defendant to prove "by a preponderance of the evidence that it would have reached the same decision ... even in the absence of the plaintiff's protected conduct." It appears to this court that in a discriminatory prosecution case, as well, it is the burden of persuasion rather than production which shifts to the government. Nevertheless, in the instant case it is not necessary to decide the question because the government has not even come forward with any evidence in support of a legitimate basis for its prosecution of James McDonald.³

B.

With respect to the first prong of the Berrios test that defendant has been intentionally singled out for prosecution, the government stipulated at the hearing in the present case that of 300 to 400 PATCO Union members in the Southern District of Texas who went on strike on August 3, 1981, only three have been...