United States v. Mason

• Decision Date: 17 October 1986
• Docket Number: No. CR 84-AR-104-NE.,CR 84-AR-104-NE.
• Citation: 646 F. Supp. 843
• Parties: UNITED STATES of America v. William Johnny MASON, Ricky Lynn Creekmore, David Lee Kelso, Ray Winford Steele, Roger David Handley.
• Court: U.S. District Court — Northern District of Alabama

646 F. Supp. 843

UNITED STATES of America v. William Johnny MASON, Ricky Lynn Creekmore, David Lee Kelso, Ray Winford Steele, Roger David Handley.

No. CR 84-AR-104-NE.

United States District Court, N.D. Alabama.

October 17, 1986.

Frank W. Donaldson, U.S. Atty., Bill Barnett, Asst. U.S. Atty., Craig Shaffer, Barbara Kammerman, Albert Moskowitz, U.S. Dept. of Justice, Washington, D.C., Wm. Bradford Reynolds, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., Ann Robertson, Sp. Asst. U.S. Atty., Birmingham, Ala., for U.S.

Bryce Graham, Tuscumbia, Ala., for Mason.

Donald L. Colee, Jr., Birmingham, Ala., for Creekmore.

George C. Lucas, Birmingham, Ala., for Kelso.

Mark Ellis Martin, Birmingham, Ala., for Steele.

John Sudderth, Birmingham, Ala., for Handley.

MEMORANDUM OPINION

ACKER, District Judge.

On October 3, 1986, the court conducted an evidentiary hearing in which evidence was received in support of and in opposition to the separate motions of defendants Mason, Kelso, Steele and Handley to suppress certain self-incriminating testimony formerly given by them either by deposition in a civil case or by trial testimony in another criminal case. It was made known to the court that defendant Creekmore gave no deposition or trial testimony in another case, thus rendering moot his motion to suppress his own prior statements. The motion to suppress filed by defendant Riccio was not heard on October 3, 1986, because Riccio is in federal custody, and his case is the last set for trial.

The court will address the motions of Mason, Kelso, Steele and Handley in the order in which they were heard. Each of the said four defendants has invoked and relies upon all evidence received at all former suppression hearings.

ADDITIONAL FINDINGS OF FACT PERTINENT TO ALL FOUR DEFENDANTS

Insofar as the findings of fact contained in the Memorandum Opinions of July 27, 1984, July 14, 1986, September 8, 1986, and September 18, 1986, may apply to the suppression motions of Mason, Kelso, Steele and Handley, or any of them, those findings are reaffirmed and incorporated in this opinion. The said three opinions, and this one, represent an evolutionary process in the court's thinking, with some changes of mind based on new evidentiary material.

On October 3, 1986, additional evidence was offered and received on the issue of the "sole purpose" for the filing of CV 80-HM-1449-S, and on the question of the relationship between Southern Poverty Law Center and the Department of Justice at the time of the taking of the civil depositions sought to be suppressed. Mr. Dees not unexpectedly testified that he agrees with the finding contained in the opinion of the Eleventh Circuit of June 25, 1985, in United States v. Handley, 763 F.2d 1401 (11th Cir.1983), that his sole purpose was not to obtain evidence for a criminal prosecution. Also, he again disclaimed any two-way relationship with the Department of Justice. In fact, he even disclaimed any intent whatsoever in his CV 80-HM-1449-S to obtain information by discovery upon which to base a criminal indictment. In this disclaimer he was in disagreement with the Eleventh Circuit. He admitted that one of his purposes was to ask, by way of ultimate relief, that Judge Haltom turn over to the Government any evidence of criminal conduct which might be discovered. In other words, if Mr. Dees has not gotten ahead of Judge Haltom by several years, the federal criminal statute of limitations would have run long before Judge Haltom could have ordered the relief requested by Mr. Dees. This court believes that the Eleventh Circuit's finding on this narrow question was not only supported by what it had before it but by what this court now has before it.

It was both on the basis that there was no proof of an agency relationship between Mr. Dees and the United States and on the entirely separate basis that there was no proof of an absence of other legitimate reasons for CV 80-HM-1449-S that the Eleventh Circuit refused to impute to the Government, "any compulsion exerted by Mr. Dees and the Center against the civil defendants". 763 F.2d 1406.

First, the court doubts the credibility of Mr. Dees in several material respects. Mr. Dees obviously and admittedly has very strong feelings about this case. He makes no bones about it. He is far from being a disinterested bystander. He is dedicated to seeing that justice, as he sees it, is done. In this dedication he may share some of the attributes of the defendants. After testifying about his allegedly legitimate strategy reasons for recently resisting a motion to set CV 80-HM-1449-S for trial, he made an effort, on cross-examination, to explain why on February 1, 1985, he wrote to quite a number of his civil defendants a letter, which, inter alia, said:

No date for trial has been set, but the plaintiffs Peoples Association of Decatur, et al. are ready to try this case and plan to ask the judge to set a trial date as soon as possible.

(emphasis supplied).

As between Mr. Dees' two conflicting positions respecting his desire for a trial in CV 80-HM-1449-S, the court prefers to believe that Mr. Dees' formal request to Judge Haltom that CV 80-HM-1449-S not be set for trial until after this criminal case is tried is his honest position. Mr. Dees' letters to his pro se civil defendants, who are easily subject to intimidation, does not subject him to possible Rule 11, F.R.Civ.P. sanctions, whereas his pleading filed in CV 80-HM-1449-S would subject him to sanctions. In fact, this court remains convinced that Mr. Dees will be just as happy if CV 80-HM-1449-S is never set for trial, that is, if criminal convictions are obtained in this case.

One of Mr. Dees' arguments, made under oath on October 3, 1986, on behalf of the Government, for some vitality in his civil case apart from the obtaining of information for an indictment (which as previously noted, was denied by Mr. Dees as even one of his purposes, though recognized by the Eleventh Circuit as at least one of his purposes), is that the issues in CV 80-HM-1449-S expanded after the depositions of Handley, Steele, Riccio, Tucker, Godfrey, Mason and White, to embrace a continuing conspiracy, including the burning of the Center's offices in Montgomery in the Middle District of Alabama. The problem with this argument is that this expansion of Mr. Dees' law suit occurred after the depositions made the subject of the suppression motions and cannot be considered as any proof of Mr. Dees' purpose and intent at the time he took these depositions. If Mr. Dees changed his mind after 1983 and decided to use CV 80-HM-1449-S for a new and expanded purpose, his "sole purpose" in early 1983 nevertheless was to feed information to the Government.

Mr. Dees' explanation, now offered for the first time, for never having served his civil defendant, Creekmore (a matter mentioned in previous Memorandum Opinions and which Mr. Dees obviously desired on October 3, 1986, to refute), is that Mr. Dees has abandoned his civil pursuit of Creekmore only because the depositions of Handley, Steele, Riccio, Tucker, Godfrey, Mason and White were taken before Creekmore could be served, and inasmuch as Creekmore had no notice of them, they would not be available for use against Creekmore in CV 80-HM-1449-S. There are at least two obvious flaws in this argument. The first is that if years ago Creekmore was no longer a civil target it would have been a simple matter to dismiss CV 80-HM-1449-S as against him. This has not been done. The second is that a large number of civil defendants were added after Creek-more had been named a defendant and after many civil depositions had been taken. In fact, on this theory the depositions of Handley, Steele, Riccio, Tucker and Godfrey could not be used against White or Mason. The court file in CV 80-HM-1449-S indicates that many depositions were taken by Mr. Dees without proper prior notice to each and every pro se defendant and to each and every lawyer appearing for a civil defendant. The task of sorting out which civil depositions can be offered against which defendants in the civil case will be monumental, if and when the case is ever tried. This sloppiness in noticing depositions is another fact which tends to prove that the depositions were taken without expecting ever to use them in a civil context. If not in the civil case in which taken, then in what case?

Another serious credibility doubt arises from Mr. Dees' quite positive testimony that he and the Center never deposed James Smith in CV 80-HM-1449-S. Mr. Dees did not say that his memory could be faulty on this subject. Instead he quarrels with the court record in CV 80-HM-1449-S, of which this court takes judicial notice and which reflects not only that Mr. Dees did depose James Smith but checked out the James Smith deposition "under seal" and has not returned it. The docket sheet in CV 80-HM-1449-S shows on March 19, 1984:

"Deposition of James A. Smith taken on behalf of plff, filed — slm."

The docket sheet shows on May 2, 1985:

"ORDER that the depositions of Donnie Spradlin; George Spradlin; James Blair; Wendell Dean Van Meter; James Smith and William Hendrix are checked out, under SEAL, to plff's attorney, filed, cs, bth."

(emphasis supplied).

Who is this court to believe, Mr. Dees or the court's own records? A separate, but interesting unanswered question is: "Why is a civil deposition `under seal'?" Another interesting unanswered question is: "How does a party check out a deposition and keep it over a year?"

It is an easy matter for Mr. Dees simply to assert that he had more than one purpose for filing CV 80-HM-1449-S. This assertion is analogous to the "articulated, legitimate, non-discriminatory reason" for an employment decision adverse to an employee in Title VII cases under the McDonnell-Douglas analysis. The tryer of fact in a Title VII case, using his common sense and based on the totality of the evidence, including circumstantial...