U.S. v. White
| Decision Date | 07 June 1988 |
| Docket Number | 86-7834,86-7901,86-7721,87-7098,Nos. 86-7672,86-7699,s. 86-7672 |
| Citation | 846 F.2d 678 |
| Parties | 26 Fed. R. Evid. Serv. 191 UNITED STATES of America, Plaintiff-Appellant, v. Lenwood Lewis WHITE, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Terry Joe TUCKER, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. William Johnny MASON, Roger David Handley, David Lee Kelso, and Ray Winford Steele, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. William David RICCIO, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Ricky Lynn CREEKMORE, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. David Lee KELSO, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Frank W. Donaldson, U.S. Atty., Birmingham, Ala., William R. Yeomans, Asst. Atty. Gen., Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., Ann C. Robertson, Sp. Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellant in Nos. 86-7672, 87-7098.
Kenneth J. Gomany, Birmingham, Ala., for defendant-appellee White.
William R. Yeomans, Asst. Atty. Gen., Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant in Nos. 86-7699, 86-7721, 86-7834.
Thomas J. Spina, Hartman, Fawal & Spina, Robert P. Bynon, Jr., Birmingham, Ala., for defendant-appellee Tucker.
F.A. Barry Flower, III, Birmingham, Ala., for defendant-appellee Mason.
John W. Sudderth, Birmingham, Ala., for defendant-appellee, Handley.
George C. Lucas, Birmingham, Ala., for defendant-appellee Kelso.
Mark Ellis Martin, Birmingham, Ala., for defendant-appellee Steele.
Jerry N. Quick, Trussville, Ala., for defendant-appellee Riccio.
Frank W. Donaldson, U.S. Atty., Birmingham, Ala., William R. Yeomans, Asst. Atty. Gen., Civil Rights Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant in No. 86-7901.
Donald L. Colee, Jr., Birmingham, Ala., for defendant-appellee Creekmore.
Appeals from the United States District Court for the Northern District of Alabama.
Before JOHNSON and CLARK, Circuit Judges, and DUMBAULD *, Senior District Judge.
This appeal consists of six consolidated criminal cases, involving eight defendants, in which the United States ("the Government") seeks the reversal of the district court's suppression of evidence. The Government also appeals from the district court's order dismissing the indictment against David Lee Kelso and from the district court's granting Ricky Lynn Creekmore a judgment of acquittal after the jury had found Creekmore guilty of one count of the indictment. We reverse the district court and remand to the Chief Judge of the United States District Court for the Northern District of Alabama with instructions that these cases be assigned to a different district court judge.
These cases, which have a long procedural history, arise out of a single incident. In May 1979, members of the Invisible Empire, Knights of the Ku Klux Klan clashed with black marchers led by the Southern Christian Leadership Conference ("SCLC") in Decatur, Alabama. Approximately two or three days before the march, Reverend Arthur Turner and other SCLC leaders met with Decatur Chief of Police Pack Self to discuss the details of the parade route and to request police assistance during the demonstration. Chief Self agreed to provide security during the march and said that he would bring in extra officers if necessary. In fact, an augmented police force was in the streets on the day in question. Night shift officers remained on duty or returned later in the morning, and the Morgan County Sheriff's Department had an auxiliary staff on duty.
On the day of the demonstration, the Ku Klux Klan gathered in Decatur. As the SCLC march progressed, KKK members moved into the street. The police attempted to push the Klan out of the street, but the Klan members beat the police with clubs. 1 At least one member of the Klan, defendant Kelso, broke through the police line and ran toward the black protestors. However, he was shot before he reached the demonstrators. Other shots were then fired, at which time the black marchers fled.
Several persons, including police officers, sustained injuries in the clash, but the FBI's initial investigation did not disclose sufficient evidence to support federal criminal charges against any of the Klansmen. Consequently, the Department of Justice ("the Department") closed its investigation in late October 1979.
In September 1980, the State of Alabama prosecuted Curtis Robinson, a black demonstrator, for shooting and wounding Kelso during the Decatur clash. Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983). Defendants Kelso and Terry Tucker both testified at the criminal trial. United States v. Handley, 644 F.Supp. 1165, 1190 (N.D.Ala.1986) ("Handley III "); United States v. Mason, 646 F.Supp. 843, 850-51 (N.D.Ala.1986). In addition, in December 1979, Kelso gave a deposition in conjunction with a tort action he brought against Robinson. Id. at 851. Robinson was represented by Attorney Morris Dees and the Southern Poverty Law Center ("SPLC") in these cases.
In November 1980, the SPLC filed a civil action in the United States District Court for the Northern District of Alabama seeking monetary and injunctive relief against the Invisible Empire, Knights of the Ku Klux Klan and its members for various activities, including the violence in Decatur. 2 The SPLC also asked the district court to "refer to the United States Attorney for the Northern District of Alabama, for investigation and possible prosecution, any acts of defendants which appear to be violations of federal criminal statutes." United States v. Handley, 763 F.2d 1401, 1403 (11th Cir.), cert. denied, 474 U.S. 951, 106 S.Ct. 318, 88 L.Ed.2d 301 (1985) ("Handley II "). District Judge Haltom presided over the civil action. Among the approximately fifty defendants in the SPLC's civil suit are Lenwood Lewis White, William Johnny Mason, Roger David Handley, Ray Winford Steele, William David Riccio, Tucker, Kelso, and Creekmore. 3 Id. at 1403. These civil defendants are also the criminal defendants in these consolidated cases.
On October 20, 1982, Lloyd Letson, a former Klansman, testified at a hearing on behalf of the plaintiffs in the civil action. The plaintiffs had dismissed him from the civil suit in return for his testimony regarding the alleged Klan conspiracy in Decatur. An Assistant United States Attorney (AUSA), Henry Frohsin, attended the hearing, and obtained a transcript of Letson's testimony to send to the Department in Washington. The Department subsequently reopened its investigation in December 1982. Id.
On January 27, 1983, Dees began to depose the civil defendants. During the depositions, Dees showed the deponents photographs of the Decatur incident and asked them to identify themselves and other Klansmen depicted in the photographs. Many deponents refused, invoking their Fifth Amendment right to refrain from self-incrimination. On February 8, 1983, in response to a motion from the SPLC, Judge Haltom ordered the deponents to identify themselves and other KKK members in the photographs taken in Decatur and at other sites of Klan activity. Id.
On July 27, 1983, Dees met with representatives of the FBI and the Department. 4 Daniel Rinzel, a Deputy Assistant Attorney General in the Department's Civil Rights Division, told Dees that the Department would be willing to accept any information regarding the Klan that Dees had to offer. Dees gave Rinzel excerpts of some of the 12 depositions he had taken to that point. After the meeting, Dees took approximately 90 depositions and forwarded to the Department those depositions indicating criminal activity by the KKK. Id. at 1404. However, the Department "had no advance notice of any of the depositions and no input into their conduct." Id. at 1403. During this period, the Department obtained other depositions directly from the district court clerk. Id. at 1404.
In May 1984, the grand jury indicted nine defendants, eight of whom are appellees here, 5 for conspiring to disrupt the Decatur parade, for injuring police officers, and for conspiring to obstruct the investigation of the incident. Prior to trial, seven of the nine defendants moved to suppress all depositions and fruits of depositions taken in the SPLC's civil action. District Judge Acker granted the motion, stating that the SPLC coerced the defendants into incriminating themselves and that, because the SPLC was the arm of the Government in this investigation, the depositions were taken in violation of the Fifth Amendment. United States v. Handley, 591 F.Supp. 1257 (N.D.Ala.1984) ("Handley I "). This Court reversed, stating that "[t]he Government may introduce the depositions into evidence at trial pursuant to [Fed.R.Crim.P.] 15(e) and the Federal Rules of Evidence, assuming satisfaction of confrontation concerns." Handley II, 763 F.2d at 1406.
On remand, the district court granted the defendants' motions to sever and it set a trial date for each defendant. In August 1986, the district court held a hearing to address the voluntariness of defendant Tucker's civil deposition and his testimony in the state criminal prosecution of Curtis Robinson. The district court held that the SPLC deposition was inadmissible. Handley III, 644 F.Supp. at 1189-90. In addition, the court suppressed Tucker's testimony in State v. Robinson, holding that it was involuntary and violative of the Fifth Amendment and that the Government obtained knowledge of the testimony only as the fruit of the involuntary SPLC deposition. Id. at 1200.
In September 1986, the district court held another evidentiary hearing, after which it granted defendant White's motion to suppress his SPLC deposition. United States v. White, 643 F.Supp. 1067 (N.D.Ala.1986). Likewise, in October 1986, the court suppressed the SPLC depositions of Mason,...
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