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UNITED STATES v. PHILLIPS

October 2, 1981

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LARRY PHILLIPS, LUKE GRAVELY, CLIFFORD MULBARGER, HARRY T. JOHNSON, GLORIA SCHNEIDER, JOHN SCHMITT, AND ARTHUR STAFFORD, DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

This matter is presently before the Court on the defendants' motion to dismiss the government's petition for a rule to show cause why they should not be held in criminal contempt of this Court's order of August 3, 1981, enjoining the Professional Air Traffic Controllers Organization ("PATCO"), its officers, agents, members, and persons acting in concert with them from calling, participating in, or continuing a strike, work stoppage, or slowdown directed at the Federal Aviation Administration. In support of their motion to dismiss, the defendants, one regional PATCO officer and six officers of local PATCO affiliates, contend that they are the victims of selective prosecution aimed at punishing them for their exercise of their first amendment rights to become active officers in their union. As set forth below, the Court finds that the defendants have brought forth sufficient evidence in support of their selective prosecution claim to merit an evidentiary hearing at which the parties may fully air their respective positions. The Court will consider anew defendants' motion to dismiss at the conclusion of that hearing.

The United States Court of Appeals for the Seventh Circuit has recognized that "[t]he presumption is always that a prosecution for violation of a criminal law is undertaken in good faith and in a non-discriminatory fashion for the purpose of fulfilling a duty to bring violators to justice." United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973). See also United States v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981). Nevertheless, a defendant may overcome this heavy presumption if he can establish 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[,]

United States v. Saade, supra, 652 F.2d at 1135; United States v. Heilman, 614 F.2d 1133, 1138 (7th Cir. 1980). The burden then shifts to the government to demonstrate that the prosecution was not premised upon an "invidious objective." United States v. Saade, supra; United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974).

A defendant need not, however, present a prima facie case in order to be entitled to an evidentiary hearing on the question of selective prosecution. In United States v. Falk, the Seventh Circuit, in a rare en banc decision, held that "when a defendant alleges intentional purposeful discrimination and presents facts sufficient to raise a reasonable doubt about the prosecutor's purpose," the district court should conduct an evidentiary hearing in order to determine if the charge of selective prosecution has any merit. United States v. Falk, supra, 479 F.2d at 620-21.*fn1 The en banc majority in Falk ended its discussion of the factors that militated in favor of an evidentiary hearing in that case with an admonition that courts not simply defer to the principle of prosecutorial discretion without due consideration to the question of "whether selective enforcement in a given case is invidious discrimination which cannot be reconciled with the principles of equal protection." United States v. Falk, supra, 479 F.2d at 624.

In the case at bar, defendants maintain that they were intentionally selected for prosecution for criminal contempt by the government solely because they exercised their right to hold office in their labor union and not because of their alleged participation in the air traffic controllers' strike that began on August 3, 1981. They maintain that the government's prosecution of local and regional PATCO officers is for the purpose of breaking the air traffic controllers' union because the union has expressed views and taken actions contrary to those of the current administration. The government contends that defendants have not shown that other persons with actual knowledge of the terms of the restraining order and similarly situated to themselves have not been prosecuted or that they are being prosecuted because they engaged in protected first amendment activity rather than because of their alleged violation of the August 3, 1981, restraining order.

The government's argument that the defendants have not shown that similarly situated persons had actual knowledge of the terms of the temporary restraining order entered by this Court on August 3, 1981, or that the existence of these persons is not known to the government is disingenuous at best. During the civil contempt proceedings before this Court on August 5, 1981, the government argued that the temporary restraining order had been given the widest possible circulation in and around Federal Aviation Administration facilities frequented by the air traffic controllers within hours of its issuance in an attempt to show that the defendants in the civil contempt proceedings had actual notice of the terms of the restraining order.*fn2 In addition to the defendants herein against whom the government now seeks criminal contempt sanctions, the prior civil contempt proceedings were brought against Mr. Richard Brandis and Mr. John Holic, neither of whom is a party to the instant petition. Moreover, the government has instituted criminal proceedings against at least three other air traffic controllers in the Northern District of Illinois for knowing participation in an unlawful strike. The criminal proceedings have apparently been dropped, however, and the three former criminal defendants are not charged in the pending petition for an order to show cause. Thus, the government itself has contended at various times that persons other than those before the Court at the present time have been put on actual notice that they were allegedly involved in unlawful activity in contravention of this Court's earlier order. It is pointless to argue at this late date that persons who the government has treated as being somewhat similarly situated to the instant defendants at various times in the past are being accorded similar treatment at the present time.

Moreover, the government has brought forth nothing other than the rather bold assertion of prosecutorial discretion in order to rebut the defendants' charges that they are being prosecuted for their union activity which is protected under the first amendment. The government's attempt to distinguish cases such as United States v. Falk, supra, involving the prosecution of anti-war protesters, from the instant case on the ground that those cases involved defendants who were prosecuted solely for engaging in practiced conduct misses the point at this early stage of these proceedings because the defendants in the instant action also claim that they are being prosecuted solely for engaging in protected conduct. The fact that defendants are all officers of PATCO either on the regional or local level and that the government has not sought criminal contempt sanctions against anyone but PATCO officers despite past assertions and prosecutions to the effect that other PATCO members have knowingly violated this Court's orders lends at least some credence to the defendants' selective prosecution claim in the absence of any rebutting evidence. In United States v. Saade, supra, the court found similar allegations to the effect that the government had only initiated prosecutions against the officers of an activist organization in order to halt further political action and to punish them for past political activity sufficient to warrant further inquiry in the context of a full evidentiary hearing.

This is not to say that the defendants in the instant matter will ultimately prevail on their motion to dismiss on the ground of selective prosecution. The government will have the opportunity to bring forth evidence of any legitimate, nondiscriminatory reasons that might exist to justify the prosecution of only PATCO officers, such as to achieve maximum deterrent effect, see United States v. Catlett, 584 F.2d 864, 867-68 (8th Cir. 1978), or because prosecution of the most vocal offenders might be the most administratively and practically efficient way to proceed, see United States v. Warinner, 607 F.2d 210, 214 (8th Cir. 1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1313, 63 L.Ed.2d 760 (1980). In the interest of allowing the parties to fully develop their respective positions, however, the Court deems it advisable to conduct an evidentiary hearing before resolving the merits of defendants' motion.

Accordingly, this Court will conduct the hearing contemplated by this order on October 6, 1981, at 10:00 a.m.*fn* It is so ordered.

OPINION AFTER EVIDENTIARY HEARING

This matter is presently before the Court on the defendants' motion to dismiss the government's petition for a rule to show cause as to why they should not be held in criminal contempt of this Court's order of August 3, 1981, enjoining the Professional Air Traffic Controllers Organization ("PATCO"), its officers, agents, members, and persons acting in concert with them from calling, participating in, or continuing a strike, work stoppage, or slowdown directed at the Federal Aviation Administration ("FAA"). In support of their motion, defendants, one regional PATCO officer and six officers of local PATCO affiliates, contend that they are the victims of selective prosecution aimed at punishing them for exercise of their first amendment rights to become officers of their union in contravention of principles of due process and equal protection embodied in the Fifth Amendment to the United States Constitution.


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