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UNITED STATES v. RESTOR

January 13, 1982

UNITED STATES of America, Plaintiff,
v.
Edilberto "Ed" RESTOR, Jr., Defendant; UNITED STATES of America, Plaintiff, v. Edwin M. WINTERMYER, Defendant; UNITED STATES of America, Plaintiff, v. Joseph A. MASTRAIENI, Jr., Defendant



The opinion of the court was delivered by: DIAMOND

BACKGROUND

 The defendants were employed by the United States Government as air traffic controllers and were officers of local unions of the Professional Air Traffic Controllers Organization (PATCO). As a result of their participation in a work stoppage in August, 1981, the defendants were indicted for violating 18 U.S.C. § 1918 (1970), which prohibits employees of the Government of the United States from engaging in a strike against it. In addition, on August 4, 1981, at the outset of the strike, this court entered a temporary restraining order enjoining continuation of the work stoppage, and the defendants violated that order.

 Motions by the defendants which, inter alia, challenged the legality of the indictment on the grounds that the government engaged in impermissibly selective prosecution, asserted that 18 U.S.C. § 1918 (1970) was vague and did not charge a crime, and contended that the President had granted amnesty to the defendants when he had issued them an ultimatum to return to work by August 5, 1981, or be discharged, were denied by the court, and the cases set down for trials.

 In the meantime counsel advised the court that they had arrived at a plea agreement, and on November 9, 1981, the defendants appeared in court to enter pleas in accordance therewith. The proposed agreement provided that the defendants would plead guilty under 18 U.S.C. § 401(3) (1966) to a charge of contempt for the willful violation of the August 4, 1981, TRO, and would receive sentences limited solely to a fine of $ 500 after which the 18 U.S.C. § 1918 (1970) felony charge would be dismissed. However, that agreement was rejected by the court pursuant to Rule 11(e), Fed.R.Crim.P., and the cases were re-scheduled for trial with the understanding that the plea procedure was recessed and would be resumed if a plea bargain acceptable to the court was reached. *fn2"

 Later in the day on November 9, 1981, counsel advised the court that they had arrived at another plea agreement and the plea hearing was reconvened the following day. At that time the parties proposed a plea bargain under which the defendants would plead guilty to contempt of court in violation of 18 U.S.C. § 401(3) (1970) and agree to the imposition of a sentence not to exceed imprisonment for six months or a fine of $ 1,000 or both. In return the government would recommend that the sentences not exceed a fine of $ 500 each and would agree to a dismissal of the felony indictments after the imposition of sentences on the contempt charges. This was accepted by the court. The defendants entered pleas accordingly, and each subsequently was sentenced as previously indicated.

 DISCUSSION

 A district court may grant a motion to stay the execution of a fine or a probationary sentence if in the exercise of its discretion it concludes that such a stay is proper. Fed.R.Crim.P. 38. In considering the propriety of a motion to stay, the court may weigh the legal merits of the appeal. Spinkellink v. Wainwright, 596 F.2d 637 (5th Cir. 1979); United States v. Tallant, 407 F. Supp. 896 (N.D.Ga.1975) aff'd, 547 F.2d 1291 (5th Cir.), cert. denied, 434 U.S. 889, 98 S. Ct. 262, 54 L. Ed. 2d 174 (1977). If a stay is denied, the court must state the reasons for the denial, Rule 9(b), F.R.A.P.; United States v. Bishop, 537 F.2d 1184 (4th Cir. 1976); See United States v. Tallant, supra at 898.

 In view of the foregoing, the court requested counsel to indicate the bases of the appeals so that we could evaluate the apparent merits thereof and determine whether or not a delay in the commencement of the sentences was appropriate. In response, counsel advised the court by letter that the appeals would raise the following questions:

 
I. Whether the sentences imposed are illegal
 
A. Whether community service may be required
 
B. If community service may be required, within what limitations may it be imposed
 
II. Whether the sentences were imposed in an illegal manner
 
III. Whether the court abused its discretion in ...

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