The opinion of the court was delivered by: RICHEY
This case came before the Court on the Motions of the defendants, W.A. Boyle, John Owens and James Kmetz, by their attorneys, to Dismiss the Indictment, pursuant to Rule 12 of the Federal Rules of Criminal Procedure. Upon the consideration of all the evidence adduced at the hearing, the memoranda of both the Government and the defendants, and the oral arguments of counsel for the respective parties, the Court concludes that the Motions to Dismiss should be denied for the reasons hereinafter set forth.
Although each defendant filed a separate Motion to Dismiss, the grounds asserted in support of each motion were substantially the same. In this opinion the Court will note any particular ground raised by one defendant which was not raised by the other defendants in order to prevent confusion. Basically, the following grounds have been stated in support of the motions:
(1) That the statute, 18 U.S.C. § 610 (1970), under which the defendants were indicted, is unconstitutional on its face and as applied in the instant case.
(2) That the statute, 18 U.S.C. § 610 (1970), is vague and indefinite and fails to adequately define an offense against the United States in violation of the Sixth Amendment to the United States Constitution.
(3) That the counts of the Indictment are offensive to the Sixth Amendment to the United States Constitution in that they are vague, indefinite and uncertain and fail to adequately inform the defendants of the nature and cause of the accusation against them so as to enable them to plead double jeopardy or collateral estoppel or acquittal at any future trial for a similar offense or offenses.
(4) That Count 1 of the Indictment alleges several separate and distinct conspiracies and, thus, more than one crime within a single count and therefore constitutes a prejudicial misjoinder of offenses.
(5) That Counts 2 to 13, both inclusive, with respect to defendant Boyle, and Counts 1 and 7 with respect to defendant Owens, of the Indictment each charge the defendants with the same offense as that charged in Count 1 of the Indictment in violation of their constitutional right under the Fifth Amendment to the Constitution of the United States not to be subject for the same offense to be twice placed in jeopardy of life or limb.
(6) That Count 13 of the Indictment is too broad, lacking in particularity and specificity, indefinite, inconsistent, duplicitous and therefore violates the Sixth Amendment to the Constitution of the United States, because it does not inform the defendant Boyle with particularity and specificity of the nature and cause of the accusation contained therein and constitutes a denial of due process under the Fifth Amendment to the United States Constitution.
(7) That Count 13 of the Indictment fails to charge the defendant Kmetz with a violation of a federal law.
(8) That the Indictment, and each count thereof, is barred by the Statute of Limitations.
(9) That there were unauthorized persons in the Grand Jury room.
(10) That the statute, 18 U.S.C. § 610 (1970), is being discriminatorily enforced.
(11) That Count 13 of the Indictment fails to allege that the monies and funds of the United Mine Workers of America were used against the wishes of the members of that organization or that the defendants, W.A. Boyle and James Kmetz, were without authority of said United Mine Workers of America to do what they are alleged to have done.
(13) That the Indictment in Criminal No. 1741-71, which superseded the Indictment in Criminal No. 346-71, was returned without the re-examination of any witnesses or records upon which the indictment in Criminal No. 346-71 was found and without the introduction of any new evidence in violation of the defendants' rights under the Fifth Amendment to the United States Constitution.
(14) That the defendants have been denied their rights to a speedy trial as provided by the Sixth Amendment to the United States Constitution.
Constitutionality of 18 U.S.C. § 610 (1970)
The defendants challenge the constitutionality of 18 U.S.C. § 610 (1970) on several grounds ranging from abridgment of free speech under the First Amendment to discriminatory enforcement in violation of the due process clause and equal protection. The Court will treat each issue separately in order to prevent confusion.
Defendant Boyle argues that 18 U.S.C. § 610 (1970) (hereinafter referred to as § 610) violates a union member's right of association and his right of free speech, which are both guaranteed to him under the First Amendment to the United States Constitution. The constitutionality of the statute was recently upheld in United States v. Pipefitters Local Union No. 562, 434 F.2d 1116 (8th Cir.), aff'd on rehearing en banc, 434 F.2d 1127 (1970), cert. granted, 402 U.S. 994, 91 S. Ct. 2168, 29 L. Ed. 2d 160 (1971). In the Pipefitters' case the court noted that the First Amendment clearly protects freedom of association, and that the activities of a labor union fall within the purview of this protection. Id. at 1122. However, the court was careful to point out that the rights of association are not absolute and may be regulated by the government in certain instances. Id. at 1122. See also Dennis v. United States, 341 U.S. 494, 95 L. Ed. 1137, 71 S. Ct. 857 (1951).
In order to permit the government to regulate in a constitutionally protected area, such as freedom of association or freedom of speech, a court must weigh the interests of the respective parties. In the instant case the Court must examine and balance the interests of the government in having such a regulation and the organization's interest in its freedom of association. Only if the government's interest is compelling, will the statute retain its enforceability under the Constitution. This Court agrees with the Pipefitters' court where it stated that the government has a compelling reason,
"since it is possible for a person to be required to join a union as a condition of employment, one of the purposes for the passage of 18 U.S.C. § 610 was to 'protect union members holding political views contrary to those supported by the union from use of funds contributed ...