United States v. Robert Butterworth, William Newton, Darrell Reazin, Albert Stephens and Robert Kenny

Appellants, who were charged with knowingly participating in a strike against the United States in violation of 18 U.S.C. § 1918 (3) and 5 U.S.C. § 7311 (3), moved to dismiss their indictments on grounds of selective prosecution. Appellants were among approximately two hundred seventy air traffic controllers who failed to report to work at the northern California Bay Tracon and Oakland air traffic control facilities after the national President of the Professional Air Traffic Controllers Organization (PATCO) announced a general strike.

In their motion to dismiss, appellants argued that the government decided to prosecute them only because their names were on a government list of appropriate targets for prosecution. This list, according to appellants, was improperly drawn in response to the exercise of their First Amendment rights to hold union office and to engage actively in union affairs.

After an evidentiary hearing, the district court denied the motion to dismiss. Appellants filed this appeal on the authority of United States v. Wilson, 639 F.2d 500 (9th Cir.1981), in which we ruled that denials of motions to dismiss on grounds of selective prosecution are immediately…