United States v. Kelso
| Decision Date | 19 November 1986 |
| Docket Number | Crim. No. 84-AR-104-NE. |
| Citation | 648 F. Supp. 1271 |
| Parties | UNITED STATES of America v. David Lee KELSO. |
| Court | U.S. District Court — Northern District of Alabama |
George C. Lucas, Birmingham, Ala., for defendant.
Frank W. Donaldson, Bill L. Barnett, Birmingham, Ala., Craig Shaffer and Barbara Kammerman, U.S. Dept. of Justice, Washington, D.C., for U.S.
Pursuant to the Memorandum Opinion and Order entered by this court on November 7, 1986, in United States v. Tucker, et al., 646 F.Supp. 1543 (N.D.Ala.1986), United States v. Kelso was called for trial on November 13, 1986, upon the heels of the trial of United States v. Creekmore, in which the United States, at the hands of the jury, obtained a conviction of Creekmore for conspiracy to violate 18 U.S.C. § 245(b)(2)(B). When called upon to prosecute Kelso, the Government reiterated its refusal to prosecute as already set forth in the notice it filed on November 12, 1986, in which it asserts that its "appeal taken in the Kelso case, as in the companion cases, is necessary to assure the Government's ability to make its case."
If the single item which this court suppressed on October 17, 1986, on Kelso's motion, in United States v. Mason, et al., 646 F.Supp. 843 (N.D.Ala.1986), is "necessary to assure the Government's ability to make its case," how did the Government manage to "make its case" against Creekmore? Not only does the United States in its prosecution of Kelso have available to it all of the evidence which it offered against Creekmore, but it has available the self-incriminatory testimony which Kelso himself gave in State v. Robinson. The suppression of Kelso's 1979 civil deposition in no way involves any "use immunity" which would preclude the introduction against Kelso of any and all of the evidence which the Government offered against Creekmore. Therefore, the assertion by the Government that Kelso's 1979 deposition in Kelso v. Robinson is necessary "to make its case" is either the ultimate in hyperbole or is a disingenuous attempt to circumvent Kelso's right to a speedy trial while awaiting the appellate outcome of collateral issues.
In addition to pointing out the Government's failure to prosecute after warning by the court, Kelso moves to dismiss the indictment by raising a question akin to his earlier complaint that the Government violated Rule 16, F.R.Cr.P., by failing for years to furnish him a copy of his 1979 deposition in Kelso v. Robinson. This issue involves the failure of the Government to furnish to Kelso the name of Jerry Smith as an unindicted co-conspirator. This is a serious question, deserving of the court's careful evaluation.
On or about June 6, 1984, defendants Godfrey, Steele and Riccio moved, inter alia, to require the United States to disclose:
18. The names and addresses of the alleged unindicted co-conspirators described in Count One of the indictment as "other persons known and unknown to the grand jury."
On June 26, 1984, before any order was entered by the magistrate or by the court in response to the said motions, the United States, in apparent acknowledgement of an obligation to do so, filed a bill of particulars which stated, inter alia:
On July 19, 1984, Magistrate Reddoch denied Godfrey's motion in certain respects but granted the motion as to the requested identification of the unindicted co-conspirators. From July 19, 1984, until the present moment the Government has neither supplemented nor amended its bill of particulars to identify any additional unindicted co-conspirators.
During the Creekmore trial testimony was given tending to prove that some, if not all, of the persons named on June 26, 1986, as unindicted co-conspirators, were, in fact, members of the conspiracy alleged in Count One of the indictment. From June 26, 1984, until November 13, 1986, Kelso's counsel could have interviewed any one of these identified unindicted co-conspirators for the purpose of finding out what his testimony might be and whether or not it might be helpful in Kelso's defense. This was not true of Jerry Smith because he was not so identified.
During the Creekmore trial, it became painfully obvious that Jerry Smith was a Klansman actually at the scene of the parade held in Decatur on May 26, 1979, and that he there emptied his revolver in the direction of the SCLC marchers from the back of his pickup truck. It also became obvious that the Government knew of Jerry Smith's role in the incident. The Government had in its possession a photograph of Jerry Smith in the act of firing his pistol, and Jerry Smith was actually identified by Officer Mickle, a Decatur policeman who testified against Creekmore. From the evidence offered against Creekmore, it is clear that Jerry Smith, with his pistol, was at least as much a co-conspirator as Creekmore was with the sticks in his hands. The Government, of course, has the right of selective prosecution within limits, and it may have had a valid reason for not seeking an indictment against Jerry Smith. This, of course, is also true as to the identified unindicted co-conspirators. The question remains: Can the United States not only decide not to indict a known co-conspirator but fail to disclose that known co-conspirator to an indicted co-conspirator after being ordered to do so? If the Government was under an obligation to identify all known unindicted co-conspirators on June 26, 1984, when it identified nineteen of them, that obligation was a continuing obligation and an obligation which ran in favor of Kelso as well as the other defendants, after this court allowed each defendant to adopt the motions of the other defendants. Kelso's counsel has particular reason to be sensitive, and even cynical, where the Government's failures to disclose are concerned, having already experienced the Government's unexplainable failure to disclose to him his client's 1979 deposition in Kelso v. Robinson until shortly before trial. But the court is not here dealing with a question of whether or not Kelso's counsel has a reason for chagrin but whether or not the Government's failure to disclose the identify of Jerry Smith as an unindicted co-conspirator constitutes an alternative or additional ground for dismissing the indictment as against Kelso. Is it an appropriate sanction?
In United States v. Burkhalter, 735 F.2d 1327 (11th Cir.1984), the existence of two unindicted co-conspirators was discovered by the Government the weekend before trial and revealed to the defendant on the morning of trial. The court there gave the Government the option of employing the testimony of the newly discovered co-conspirators as witnesses, or to characterize them as co-conspirators, but not both. When the Government refused to elect, the court suppressed the prospective testimony, whereupon the Government appealed and the trial was continued. The Eleventh Circuit reversed, holding that a continuance would have been the appropriate remedy. Kelso is clearly distinguishable from Burkhalter in at least two crucial respects. Burkhalter expressly waived his right to a speedy trial, whereas here Kelso demands an immediate trial after having waited since May of 1984, when he was indicted. In Burkhalter, the Government only learned that the two persons were co-conspirators shortly before trial and immediately revealed them to defense counsel, whereas in Kelso, the Government knew of Jerry Smith's involvement in the events from the time of the indictment until the present time and has not yet revealed it to Kelso except accidentally by proof offered during the Creekmore trial. Kelso's counsel apparently found out about Jerry Smith from hearsay sources. While these are crucial distinctions between Burkhalter and Kelso, there is also a similarity, namely, that in both cases an appeal by the Government was taken from an order of suppression which, if the Government was successful, would delay trial long enough to give defendant an opportunity to ameliorate any prejudice occasioned by the Government's failure to reveal the co-conspirator's identity. However, there are several defects in an argument based on the self-correction which took place in Burkhalter. First, to ignore the Government's failure to identify Jerry Smith because of the Government's current appeal from the order of suppression, and the Government's prospective appeal from the order dismissing the indictment against Kelso, would allow it to bootstrap itself over its own shortcomings and to excuse its own violations of the rules of discovery and of the orders of this court. Second, the order of suppression which has been appealed in Kelso, is now only incidental to the order dismissing the indictment. Third, in Burkhalter there had been no pattern of intransigence or prior discovery violations by the Government, and no prior pointed admonitions by the court, whereas here the Government had more than one strong warning about non-compliance with the discovery rules before this falling of the final ax.
The Fifth Circuit, in United States v. Barrentine, 591 F.2d 1069 (5th Cir.1979), pointedly said:
The granting of a bill of particulars is another of the rulings that is within the discretion of the trial...
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..."failure to prosecute" and because of its failure to produce the name of an unindicted co-conspirator. United States v. Kelso, 648 F.Supp. 1271, 1272, 1277 (N.D.Ala.1986). Also in November 1986, a jury found defendant Creekmore, who had not given any pretrial depositions or testimony subjec......