United States v. Handley

• Decision Date: 08 September 1986
• Docket Number: No. CR 84-AR-104-NE.,CR 84-AR-104-NE.
• Citation: 644 F. Supp. 1165
• Parties: UNITED STATES of America v. Roger David HANDLEY, et al.
• Court: U.S. District Court — Northern District of Alabama

644 F. Supp. 1165

UNITED STATES of America v. Roger David HANDLEY, et al.

No. CR 84-AR-104-NE.

United States District Court, N.D. Alabama.

July 14, 1986.

On Renewed Motion to Suppress September 8, 1986.

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Frank W. Donaldson, U.S. Atty., Bill L. Barnett, Asst. U.S. Atty., Craig Shaffer and Barbara Kammerman, U.S. Dept. of Justice, and Ann C. Robertson, Sp. Asst. U.S. Atty., Birmingham, Ala., for U.S.

Robert P. Bynon, Jr., Thomas J. Spina, Birmingham, Ala., for defendant Tucker.

John W. Sudderth, Birmingham, Ala., for defendant Handley.

MEMORANDUM OPINION

ACKER, District Judge.

The nine defendants in the above entitled cause have separately presented the following motions:

(1.) Renewed motion to suppress each civil deposition in CV 80-HM-1449-S taken of a defendant in this case, based on allegedly newly discovered evidence showing that the sole purpose of the civil action was to obtain evidence for the criminal case. The motions by defendants Mason and White are first-time motions.

(2.) Motion to suppress each civil deposition in CV 80-HM-1449-S, based on the allegation that each said deposition was not voluntary but rather coerced.

(3.) Motion for dismissal of the indictment based on an alleged grant of immunity, express or implied.

(4.) Motion for a dismissal of the indictment on the basis of alleged preindictment delay.

(5.) Motion for dismissal of the indictment, or certain of its counts, on the basis of an allegation that the parade staged by the Southern Christian Leadership Conference (the subject of the indictment) was not "provided" or "administered" by the City of Decatur and was not a "public activity" as required by the criminal statute invoked by the grand jury.

(6.) Motion for a continuance pending final adjudication of CV 80-HM-1449-S.

(7.) Motion for a severance.

(1.) The Renewed Motion To Suppress

In support of their renewed motions to suppress defendants have now introduced evidence which was not available prior to the suppression order entered on July 27, 1984, United States v. Handley, 591 F.Supp. 1257 (N.D.Ala.1984), and the subject of the opinion of the Eleventh Circuit in United States v. Handley, 763 F.2d 1401 (11th Cir.1985). Defendants attempt to hang their hats on the following expression by the Eleventh Circuit:

If such the criminal indictment is the sole purpose of the civil proceedings, then perhaps the Center's actions could be imputed to the government and the fifth amendment proscription of governmental compulsion would apply. citations omitted. The civil complaint, however, seeks legal and equitable relief on behalf of the plaintiffs as well as the referral of evidence to the government. Mr. Dees testified on deposition to the continuing vitality of the civil suit and his clients' intention to pursue their claims despite the indictments. This testimony was undisputed. We therefore conclude that the civil case was not filed solely to obtain evidence for the criminal prosecution and is viable wholly apart from any criminal connotations. Any compulsion exerted by Mr. Dees and the Center against the civil deponents therefore may not be imputed to the government.

Id. at 1405-06 (emphasis in original).

Not only has this court now received new items into evidence in support of defendants' renewed motions but the court takes judicial notice of everything which has transpired in CV 80-HM-1449-S during the period intervening between the earlier suppression order and the present. Among these new facts is the fact that after one of the civil defendants in CV 80 HM-1449-S formally requested the termination of discovery and the setting of that case for trial (the complaint was originally filed on November 3, 1980), Mr. Dees, on June 12, 1985, responded, inter alia, as follows:

Eight of the named defendants, many of them officials of the defendant Invisible Empire, Knights of the Ku Klux Klan, were indicted for violation of plaintiffs' civil rights and obstruction of justice in May, 1984. These indictments were partially the result of evidence uncovered by plaintiffs in the case sub judice. A ninth defendant has pled guilty to a federal information concerning similar charges.

* * * * * *

The discovery should not be terminated and the case set for trial until the criminal proceedings now pending in the United States District Court for the Northern District of Alabama are terminated.

* * * * * *

Plaintiffs believe that this litigation can be moved along much faster and with the least court involvement if discovery is not cut off or a trial date set until after the criminal trial is held.

In fact Mr. Dees has been successful in avoiding a trial of his civil case despite his and the Eleventh Circuit's description of it as "viable wholly apart from any criminal connotations". 763 F.2d at 1405-06. A second fact comes from an article published in The Atlanta Constitution on November 28, 1985, received into evidence without objection by the United States. There, Mr. Dees is quoted as follows:

Civil cases usually take a back seat to criminal ones, Dees says. Everyone was prepared to put the civil case on hold while the criminal case went ahead.

A third indicator of Mr. Dee's "sole purpose" is the fact that even after the Eleventh Circuit pointed out to him that he had not served his summons and complaint in CV 80-HM-1449-S on Creekmore, he still has not done so, although Creekmore is obviously not hiding because he has regularly been present in this court. Does this demonstrate a serious purpose to seek civil relief from Creekmore?

While circumstantial, these new pieces of evidence, when added to the jigsaw, now convince this court, in the language of the Eleventh Circuit, that the "sole purpose of the civil proceedings" was to get information for the criminal prosecution, that is unless a collateral purpose was and is to get publicity for the Southern Poverty Law Center. If the civil case ever proceeds to trial, it will be because the undersigned judge has been the prod. It will not be the result of Mr. Dees' eagerness to wind up CV 80-HM-1449-S. Although the court has formed this belief in an exercise of its best judgment, the court finds that its conclusion in this regard cannot create a basis for circumventing or avoiding the Eleventh Circuit's holding which has become the "law of the case". The old Fifth Circuit succinctly states the binding principle here pertinent in EEOC v. International Longshoremen's Ass'n., 623 F.2d 1054 (5th Cir. 1980), as follows:

Under the "law of the case" rule, the trial and appellate courts are bound by any findings of fact or conclusions of law made by the appellate court in a prior appeal of the case at issue. DeTenorio v. Lightsey, 589 F.2d 911, 917 (5th Cir.) cert. denied, 444 U.S. 831, 100 S.Ct. 59, 62 L.Ed.2d 39 (1979).

Id. at 1058. The Eleventh Circuit found as a fact that Mr. Dees' "sole purpose" was not to obtain information for an indictment. Applying the "law of the case" doctrine, this factual question is closed. However, International Longshoremen's does recognize three exceptions to "the law of the case." The first is:

(1) a subsequent trial produces substantially different evidence.

623 F.2d at 1058 (emphasis supplied).

The key words are "substantially different". This court's view of "substantially different" may vary from the view of the Eleventh Circuit, and this court is unwilling to employ the exception here. If, instead of interpreting Mr. Dees' civil pleadings and public statements and his inaction occurring after the earlier suppression order to indicate no purpose to pursue civil case, defendants could offer into evidence Mr. Dees' sworn confession that his sole intention has always been to obtain a criminal indictment, the court would be willing to apply the "substantially different evidence" exception. Defendants' evidence is pretty persuasive, but it is not substantial enough for this court to refuse to apply the "law of the case".

(2.) Motion to Suppress Because of Involuntariness of Deposition.

The Eleventh Circuit did not expressly address the question of the voluntariness of any of the depositions taken in the civil case, or the effect on the admissibility of such a deposition in this case. It is possible, as argued by the United States, that the Court ruled on the question by implication in the last paragraph of its opinion which says:

The government may introduce the depositions into evidence at trial pursuant to criminal rule 15(e) and the Federal Rules of Evidence, assuming satisfaction of confrontation concerns.

763 F.2d at 1406.

At the earlier suppression hearing this court never provided any of the civil deponents, here defendants, an opportunity to testify personally about the impact which the civil order formally requiring them to submit to deposition and which informed them that they had no privilege, had, or may have had, on whether or not their respective depositions were "voluntary". Civil depositions were taken of defendants Handley, Mason, White, Steele, Riccio (twice), Tucker and Godfrey. Each defendant may have facts within his personal knowledge which would shed light on the voluntariness of his or another's deposition, and which might distinguish one deponent from the other deponents in this regard. A hypothetical example might be what Mr. Dees said to a particular deponent "off-the-record" prior to the deposition, or whether or not the deponent had advice of counsel, and if so, what advice the deponent received from such counsel, particularly with regard to the statute of limitations as applied to possible criminal charges. In the instant case the Government would necessarily be offering the civil depositions (except as an admission against the deponent himself) as hearsay exceptions under Federal Rule of Evidence 804(b)(1), which provides:

Testimony given as a witness at another hearing of the same or a

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