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March 5, 1982

Paul AMATO and Anthony J. Maimone, Defendants

The opinion of the court was delivered by: PLATT

Paul Amato and Anthony Maimone are individually charged in separate counts of a two count indictment with participating in a strike against the government of the United States at a time when each held a position of employment as an air traffic control specialist with the Federal Aviation Administration in violation of 5 U.S.C. § 7311 and 18 U.S.C. § 1918(3).

Defendants move pursuant to Rule 12 of the Federal Rules of Criminal Procedure to dismiss the indictment against them on the grounds that:

 (1) the defendants are being selectively prosecuted and are being discriminated against;

 (2) the crime charged in the indictment is not the crime that is defined in the pertinent statutes;

 (3) the pertinent statutes are unconstitutionally vague and indefinite;

 (4) the pertinent statutes should be amended;

 (5) the Department of Justice has violated its own administrative rules and policy;

 (6) the defendants have been granted amnesty by the President of the United States;

 (7) the indictments should be dismissed in the interests of justice.


 Following submission of their initial briefs and oral argument on the motions, we agreed that as regards defendants' claims of selective prosecution, they had made sufficient allegations of a purposeful invidious discrimination to entitle them to an evidentiary hearing. See United States v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981); United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973); United States v. Phillips, 525 F. Supp. 1, 2 (N.D.Ill.1981).

 The parties agreed to delay any determination as to grounds (2)-(7) pending the hearing and resolution of the selective prosecution question.

 The hearing, commenced on January 15 and concluded on January 25, 1982, consisted of the testimony of eleven witnesses called by the defendants and the presentation of video tapes by the Government.

 Our analysis and findings are circumscribed by the two-pronged test of "intentional and purposeful discrimination" set forth by the Court of Appeals for this Circuit in United States v. Berrios, 501 F.2d 1207, 1211 (2d 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.'

 We note at the outset that the defendants have easily met their burden as to the first part of the Berrios test. There is not, nor has there ever been any dispute in this Court about the fact that approximately 13,000 air traffic controllers and members of the Professional Air Traffic Controllers Organization ("PATCO") engaged in a strike against the government and that only 78 prosecutions were authorized by the Department of Justice ("the Department"). (Tr. 268-73). For all practical purposes, defendants' "heavy burden" has been to show the invidious nature of the prosecution. And it is this burden which they have failed to carry.

 Defendants' allegations *fn1" essentially are that they were selected for prosecution because of their positions as a present president of PATCO Local 160 (Paul Amato) and a past president of that same Local (Anthony Maimone). The prosecutions were allegedly designed to inhibit, suppress and punish them for their active exercise of their First Amendment rights to speak and associate freely.

 The evidence adduced as to these allegations gives rise to two possible levels of analysis. The first is directed to the policy formulated by the Department of Justice in conjunction with Federal Aviation Administration ("FAA") officials and specifically, the criteria used to determine which individuals could be targeted fairly for prosecution. The second possible analysis focuses upon the implementation of the targeting policy in this judicial district.

 Neither the Government nor the defendants have been able to suggest which level of analysis is required and our reading of the cases does not present any clear cut answer. Thus, we shall address both levels.

 The National Policy

 The Department of Justice's national policy regarding the targeting of individuals for prosecution under 18 U.S.C. § 1918 was directed toward "strike leaders", otherwise identified as "coordinators", "cluster leaders", and "choir boys". (Tr. 24-25, 42-45, 174, 236-37). *fn2" The Department admitted the obvious impracticability and difficulties in attempting to prosecute all of the controllers who it believed had engaged in the strike. (Tr. 235-36). *fn3" There was testimony that in seeking a neutral basis (Tr. 30, 145, 173-74), several factors, including job function, were considered and rejected. (Tr. 171-72, 184, 323-25). Ultimately the Department determined that strike leadership was the most appropriate criterion. (Tr. 42-45, 236, 324-25). Not only would the prosecution of such persons have a deterrent effect, a factor which does not in itself constitute invidious discrimination, United States v. Ness, 652 F.2d 890, 892 (9th Cir. 1981); United States v. Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978), but, the more public, vocal, aggressive or assertive a role that a strike leader by definition would play in the strike itself would simplify the gathering of evidence of participation in a strike as required by 18 U.S.C. § 1918. See United States v. Heilman, 614 F.2d 1133, 1138-39 (7th Cir.), cert. denied, 447 U.S. 922, 100 S. Ct. 3014, 65 L. Ed. 2d 1114 (1980); 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).

 Despite days of testimony, no evidence was produced that would support a finding that the Department of Justice's policy was designed to target PATCO leaders, officers or officials. Clearly, those Justice Department officials responsible for formulating the policy recognized that the same persons designated as strike leaders in any given case might also be PATCO functionaries. (Tr. 45, 238, 265). But no one was to be included or excluded on that basis. Indeed in this judicial district, nine persons were originally targeted as "strike leaders." (Defs' Ex. F). Of these, five were serving in some official capacity with PATCO Locals while four were not.

 Nationally, more than 100 persons were originally targeted for investigation (including the above nine). (Defs' Ex. F). Seventy-two complaints were originally authorized. Thirty-one of those seventy-two persons were clearly identified as present PATCO Local officials; although four others were identified as possible officials. (Tr. 272-74).

 In addition, once targeted, the Department of Justice policy did not hamstring the local prosecuting United States Attorney offices. The United States Attorneys were free to develop cases based upon independent investigations of strike leaders not originally targeted. (Tr. 268-70, 280-82, 499-501, 510-511).

 It is not at all certain whether the Department ever expected that all targeted individuals would be indicted. Nonetheless, at the time that the targeted names were sent to local Federal Bureau of Investigation and local United States Attorney offices with instructions as to how to proceed in investigating these cases (Defs' Ex. F, H), they did not include any direction to focus on or in any way concentrate on securing evidence first and foremost against those targeted individuals who may also have been officials in the PATCO organization. The instructions made no such distinction, calling for even-handed investigation of all targeted individuals. (See Defs' Ex. H). *fn4"

 Furthermore, defendants' status as PATCO officials should not immunize them from prosecution as strike leaders under § 1918(3). To so hold would be to eviscerate the enforcement of § 1918; all union leaders who are also strike leaders would escape prosecution while strike leaders from the rank and file would have no such protection. Union leadership may not be used as a shield to prosecution under 1918(3) as defendants attempt to do here. They have shown no causal connection between their status as PATCO officials and the Government's decision to prosecute. It does not follow that merely because union leadership may be highly correlated with strike leadership that the government's decision to target strike leaders is invidiously discriminatory. Moreover, aggressive display of opposition to a law and blatant defiance of authorities, challenging them to prosecute, should not give rise to immunity from prosecution. See United States v. Rickman, 638 F.2d 182, 183 (10th Cir. 1980); United States v. Stout, 601 F.2d 325, 328 (7th Cir.), cert. denied, 444 U.S. 979, 100 S. Ct. 481, 62 L. Ed. 2d 406 (1979).

 Thus we find that with respect to the national policy of targeting "strike leaders", defendants have failed to show that the government's classification was based upon such "impermissible considerations as race, religion, or the desire to prevent (the) exercise of constitutional rights." United States v. Berrios, supra, 501 F.2d at 1211.

 Local Implementation of National Policy

 During the hearing, much of both defendants' questioning was directed to determining who in fact placed their names upon the list and what specific evidence tended to show that they were "strike leaders", "coordinators ", "choir boys", or "cluster leaders." *fn5" These terms were used to describe various levels of strike organizing activity. Identification of an air traffic controller with one of these names was of great significance-even "magical", (Tr. 306, 334), in its revelation about the "secretive" strike organization. (Tr. 50-51, 175, 330).

 Defendants' argument essentially is that there was no evidence they were strike leaders and that they were targeted on the basis of other impermissible criteria, primarily their union activism.

 We have some question as to the validity of this approach by the defendants. First of all it must be borne in mind that the targeting policy itself is a valid one and that what is being challenged now is the possible erroneous implementation of the targeting policy. We are not convinced that even if there were an impermissible selection of a target by an FAA official, that it would taint the final determination by the Department of Justice to prosecute. The fact is that 18 U.S.C. § 1918 relates to participating in a strike. The final decision to prosecute both Mr. Maimone and Mr. Amato was based upon a determination by the Department of Justice that there was sufficient evidence of their strike participation to warrant prosecution under § 1918. (Tr. 199-200, 225). They were thus distinguished by the Department of Justice from the other seven persons whose names appeared upon the target list. Their selection from this list for prosecution was not shown to be based upon any invidious or impermissible considerations, since it is permissible to prosecute vocal offenders because they offer "easy detectability and proof", United States v. Warinner, supra, 607 F.2d at 214.

 Nonetheless, despite our concern as to the necessity of doing so, we will examine the question of whether the placement of the names Maimone and Amato on the target list constituted an invidious discrimination.

 As regards the defendant Anthony Maimone, we have no difficulty in rejecting this argument. There was testimony that he was known to be a "choir boy." (Tr. 305-06, 328-30, 359-60, 366-67). His name appeared as the author of an article in Terminals Cluster News-Letter with the designation "Choir boy" beneath it. (Defs' Ex. L). It was on this basis that we conclude his name was placed upon this list, although by whom it is not known. *fn6"

 The defendant Paul Amato presents the more difficult case. Although we reach the same conclusion as to him as we do to Mr. Maimone, the evidence of his strike leadership is not as obvious or forthcoming. In fact, Mr. Charles Stafford, Chief of the Air Traffic Control Facility in Westbury, when asked whether he had ever heard Mr. Amato ...

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