United States v. Banks

• Decision Date: 30 April 1974
• Docket Number: Cr. 73-5035 and Cr. 73-5063.,No. Cr. 73-5034,Cr. 73-5062,Cr. 73-5034
• Citation: 374 F. Supp. 321
• Parties: UNITED STATES of America, Plaintiff, v. Dennis BANKS, Defendant. UNITED STATES of America, Plaintiff, v. Russell MEANS, Defendant.
• Court: U.S. District Court — District of South Dakota

374 F. Supp. 321

UNITED STATES of America, Plaintiff, v. Dennis BANKS, Defendant.

UNITED STATES of America, Plaintiff, v. Russell MEANS, Defendant.

Nos. Cr. 73-5034, Cr. 73-5062, Cr. 73-5035 and Cr. 73-5063.

United States District Court, D. South Dakota, W. D.

April 30, 1974.

William F. Clayton, U. S. Dist. Atty., for the District of South Dakota, and R. D. Hurd and David R. Gienapp, Asst. U. S. Attys., Sioux Falls, S. D. and Earl Kaplan, Dept. of Justice, Washington, D. C., appeared in behalf of the plaintiff.

Mark Lane, New York City, Douglas Hall and Larry B. Leventhal, Minneapolis, Minn. and Ramon A. Roubideaux, Rapid City, S. D., appeared in behalf of the defendant Banks.

William M. Kunstler, New York City, and Kenneth E. Tilsen, St. Paul, Minn., appeared in behalf of the defendant Means.

MEMORANDUM DECISION

NICHOL, Chief Judge.

In this case, stemming from the 71 day siege/occupation of the hamlet of Wounded Knee, South Dakota, an extended adversary hearing was held, pursuant to the requirements of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), to determine whether this case should be dismissed on the basis of governmental misconduct. The motion propounds four basic charges: (1) the alleged illegal interception of wire communications from Wounded Knee through use of a party line at roadblock one; (2) the alleged failure of the government to comply fully with the discovery order; (3) the alleged interference by the government with confidential attorney-client relationships through the interception of attorney-client conversations on the party-line telephone, and (4) the alleged general government dishonesty and misconduct.

It requires no citation of authority to conclude that dismissal of a criminal prosecution should be the last resort of the trial judge who is attempting to remedy the prejudicial effects of alleged governmental wiretapping and misconduct. Accused individuals must be brought to trial or our institutions for the maintenance of societal order will collapse. It is only when a court can conclude that it is powerless to provide a criminal defendant with a fair trial, now or at any time in the reasonable future, should the court dismiss the case. With those prefatory observations in mind, I pass to an analysis of the four areas outlined above.

POINT I—ILLEGAL INTERCEPTION OF WIRE COMMUNICATION

Throughout the hearing, there has been a great deal of contradiction and confusion regarding the facts, but certain agreement has emerged on the following.

On March 5, 1973, M. Joe Pourier, employee of the Bison State Telephone Company, at the direction of then deputy marshal Tommy Hudson, installed three telephones on one line leading from Pine Ridge, South Dakota, into Wounded Knee. Two of these phones (with one number) were placed in the Trading Post at Wounded Knee and the third (with a different number but on the same party line as the other two) was installed at a position outside of Wounded Knee known at that time as Government roadblock one.

The phones were operable between March 5, 1973, and April 6th, or possibly April 13, 1973 (for the roadblock phone), and between March 5, 1973, and April 9, 1973 (for the Trading Post phone), with certain periods of service disruption when lines were out or there was some trouble on the lines. While it was functioning, the roadblock phone was monitored several times and conversations emanating from Wounded Knee were overheard by at least six different FBI agents: Bertinot, Hemmert, Roley, Dick, Harvey and Samuels. Other agents knew such monitoring had taken place and include Trimbach, Hoxie, Sanders, and possibly Chaney.

On March 13, 1973, FBI special agent Thomas Parker transmitted to the Justice Department in Washington, D.C., a wiretap application and affidavit under Title III of the Omnibus Crime Control Act, 18 U.S.C. 2510 et seq., in connection with the telephone at Wounded Knee. Said application was never approved by the Attorney General. The Trading Post phone was disconnected either April 6, 1973, or April 13, 1973.

A. Applicability of 18 U.S.C. Secs. 2510-2520—Whether roadblock phone was installed and used in the ordinary course of business.

In its brief, the government argues that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520, has no application to the alleged interception because the telephone connection at roadblock one was for the purpose of furnishing service ". . . to the subscriber or user . . . in the ordinary course of business . . . .¹ The following discussion shows the facts to be otherwise.

1. Those in Wounded Knee were not informed of the phone at roadblock one.

M. Joe Pourier, the employee of the Bison State Telephone Company who installed both the Wounded Knee phones and the roadblock phone on March 5, 1973, testified that when he installs a party-line telephone in his work, he customarily tells a subscriber that it is a party-line hookup. In this case, however, he could not be sure whether he told anyone at the Wounded Knee Trading Post that he was installing a party-line since the government was the subscriber that was going to pay for the use of the telephone, not the occupants of the Trading Post. Clyde Bellecourt testified that he was with Mr. Pourier during the entire time that Pourier installed the phone at the Trading Post. He stated that Pourier never told him or anyone else in his presence that the telephone was a party line or that there was going to be an extension to that phone at roadblock one. Government witness Thomas Nelson also testified that he told no one in the Trading Post about the existence of an extension or party-line phone on the same line at roadblock one.

Ramon Roubideaux and Mark Lane, attorneys for the defendants, both of whom were inside Wounded Knee during the siege/occupation, testified that they knew nothing about the party-line to the Trading Post phone which was located at roadblock one. Indeed, chief government negotiator Kent Frizzell knew nothing of the existence of the roadblock phone when he assured Mr. Lane that the phones at the Trading Post were not tapped. (While it is true that such assurances were probably made after the roadblock phone had been disconnected, Mr. Frizzell had not known that there was ever a telephone at roadblock one).

2. Installation for purpose of negotiation.

Mr. Pourier also testified that he was asked to install the phones at the Trading Post and roadblock one by United States Deputy Marshal Tommy Hudson who requested that the phones be put on the same pair of wires in order to facilitate negotiations between the occupiers of Wounded Knee and those government officials manning the roadblock, including the Community Relations Service people from the Justice Department, the FBI, and others. Hudson had received such instructions from his Director, Mr. Colburn, Tommy Nelson, the BIA electrician who helped Pourier with the installations, also testified that he had been told by Pourier that the phones were being installed for negotiating purposes.

Further testimony as to the negotiating purpose behind the roadblock phone installation was given by FBI agents Hoxie and Samuels. Samuels explained that it was his understanding that the phone was at roadblock one to permit communication in an emergency situation between the roadblock and the occupants of Wounded Knee or between the roadblock and the Command Post headquarters of the FBI in Pine Ridge. Strangely, however, both Hoxie and Samuels agreed the phone was useless for their purposes because it was a party line, and both admitted they did not know the special dialing procedure necessary to communicate with the other party line number at the Trading Post inside Wounded Knee.

Contrary to the foregoing testimony declaring negotiation to be the purpose of the telephone installation at roadblock one, FBI special agent Thomas Parker, in his teletyped answer to an FBI request for information as to who had used the phone at roadblock one, stated that because of the poor radio communications maintained between the Pine Ridge Command Post and roadblock one, the phone was installed to facilitate communications between those two points. This would partially coincide with agent Samuels' testimony, although no mention was made by agent Parker of any negotiation purpose served by the roadblock telephone until he testified in court at a later time, claiming that his memory had been refreshed as to the purpose of the phone installation.

Several of the FBI agents who actually overheard conversations on the roadblock phone never heard of its being installed or used for negotiation or any other purpose other than monitoring. These include agents Bertinot, Roley (Malone), Sanders, Dick and Harvey, none of whom knew the complicated dialing procedure for reaching the Trading Post.

Further evidence militating against any actual purpose of negotiation behind installation of the phone was brought out by testimony of defense attorney Roubideaux. Mr. Roubideaux stated that his understanding of the reason behind putting a telephone inside Wounded Knee was not to negotiate but to enable those inside Wounded Knee to contact their attorneys, but he did not know of the existence of the roadblock phone. It seems unbelievable indeed that if the intent were to facilitate negotiations between those at the Trading Post and those at roadblock one, that neither the defendants' attorney nor the government's chief negotiator knew about it.

3. Actual Use of Roadblock Phone.

Despite such testimony proclaiming the various purposes behind the installation, the glaring truth is that there was absolutely no evidence that the telephone at roadblock one was actually used for either negotiation with the occupiers of Wounded Knee, or for communication with the FBI command post. Indeed, how could it have been used to contact Wounded Knee when no one who knew of...