United States v. White

• Decision Date: 18 September 1986
• Docket Number: No. CR 84-AR-104-NE.,CR 84-AR-104-NE.
• Citation: 643 F. Supp. 1067
• Parties: UNITED STATES of America v. Lenwood L. WHITE.
• Court: U.S. District Court — Northern District of Alabama

643 F. Supp. 1067

UNITED STATES of America v. Lenwood L. WHITE.

No. CR 84-AR-104-NE.

United States District Court, N.D. Alabama.

September 18, 1986.

Frank W. Donaldson, U.S. Atty., Bill Barnett, Asst. U.S. Atty., Craig Shaffer, Barbara Kammerman, Albert Moskowitz, U.S. Dept. of Justice, 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 White.

MEMORANDUM OPINION

ACKER, District Judge.

The court conducted an evidentiary hearing on the motion of defendant Lenwood L. White to suppress the deposition which he gave on July 19, 1983, in CV 80-HM-1449-S. White's motion, referred to under headings numbered (1) and (2) in the Memorandum Opinion of July 14, 1986, the same enumeration used in the order of September 8, 1986, entered in the severed case, United States v. Tucker, clearly contained two separate thrusts. One aspect attacks the deposition on the basis that it was the product of an unholy liason between the Southern Christian Leadership Conference and the Government in that the "sole purpose" of Mr. Dees in filing CV 80-HM-1449-S was to obtain information for a criminal prosecution. The other aspect objects to the introduction of the deposition simply as a violation of White's constitutional privilege against self-incrimination. While perhaps interconnected these avenues of attack are separate and distinct.

The "Sole Purpose" of CV 80-HM-1449-S

The only issue the Eleventh Circuit addressed in United States v. Handley, 763 F.2d 1401 (11th Cir.1985) was the attribution of Mr. Dees' discovery activities to the Government. When on July 14, 1986, this court overruled all motions to suppress the civil depositions (including White's motion) it was only because of a residual reluctance by this court at that time to find that Mr. Dees' "sole purpose" was to obtain information for a criminal prosecution. The court applied the "law of the case" doctrine based on the finding by the Eleventh Circuit on the evidence it then had that Mr. Dees' "sole purpose" was not to obtain such information. It has now been pointed out to the court that the "law of the case" cannot apply to White who presented no motion to suppress prior to the appeal by the United States which led to the opinion in United States v. Handley. White was not a party to that appeal and could not have been heard on it, except perhaps as amicus curiae, under the pleadings and orders as they then existed. If the court is incorrect and the "law of the case" does apply to White because he was and is an alleged co-conspirator and was a party defendant at the time of the opinion of the Eleventh Circuit, the court does not retreat from its findings of July 14, 1986, in the total case and of September 8, 1986, in United States v. Tucker, based on evidence which came to light after the former appeal and which now satisfies the court that Mr. Dees' "sole purpose" was to obtain information for a criminal prosecution. The court herein adopts its findings of fact in the Tucker opinion of September 8, 1986, its findings of fact in the opinion of July 14, 1986, and its findings of particular fact (as opposed to ultimate fact inasmuch as the Eleventh Circuit disagreed with this court's conclusion of ultimate fact on the evidence then appearing) in the opinion of July 27, 1984.

If the United States had not announced that it will not offer Tucker's civil depositions against Tucker, the court would have suppressed those depositions as being the product of Mr. Dees' "sole purpose" now clearly appearing by virtue of "substantially different evidence" coming to light after the former appeal. Leggett v. Badger, 798 F.2d 1387 (11th Cir.1986), contains the latest reiteration by the Eleventh Circuit of the exceptions to the "law of the case" previously discussed on July 14, 1986, and September 8, 1986. Leggett, however, does not speak to the question of how to apply the "law of the case" to multiple party cases in which some of the parties did not participate at the trial level or at the appellate level in the creation of a judicial expression certainly binding on those litigants who did participate. Whether or not White is bound by the doctrine, he comes within one or more of its exceptions.

The court on July 14, 1986, and on September 8, 1986, evaluated substantial evidence of Mr. Dees' intentions not available at the time the Eleventh Circuit spoke on the question of Mr. Dees' intention. In the opinion of September 8, 1986, this court did not quote Tucker precisely. Here is exactly what Tucker said less than two weeks ago, without any contradicting testimony being offered by the United States:

"If you will tell us what we want to know", he Mr. Dees said, "I will see what I can do to get the Justice Department not to indict you". I said, "Indict me for what?" I said, "I haven't done anything. They can't indict me". And he just laughed and said, "There is going to be some indictments over this."

When the Government's counsel, long after United States v. Handley was decided, for the very first time represented to this court that not a single deposition taken in CV 80-HM-1449-S was ever presented to the grand jury, the court better understood why the Government was unwilling to base its contention that "probable cause" of a crime existed on such depositions. Inasmuch as the quality of evidence required for a grand jury presentation is less substantial than evidence for a petit jury presentation, why should evidence unworthy of grand jury presentation suddenly be worthy to prove guilt "beyond a reasonable doubt"?

After United States v. Handley, the Eleventh Circuit decided United States v. Tison, 780 F.2d 1569 (11th Cir.1986). There the Eleventh Circuit says:

The Fifth Circuit Court of Appeals noted this conflict in the Federal Civil and Criminal Procedures, prior to the enactment of section 1514:

A litigant should not be allowed to make use of the liberal discovery procedures applicable to a civil suit as a dodge to avoid the restrictions on criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal suit. Judicial discretion and procedural flexibility should be utilized to harmonize the conflicting rules and to prevent the rules and policies applicable to one suit from doing violence to those pertaining to the other.

Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962), cert. denied, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502 (1963).

The issues boil down to whether the timing of a lawsuit can deprive it of a legitimate purpose, even though in the long run it could serve such a purpose if delayed.

Id. at 1572.

While Tison was dealing with a civil suit used by a criminally accused to obtain discovery, what is sauce for a criminal defendant is sauce for the prosecution. This idea is expressed less tritely by the Eleventh Circuit in Tison as follows:

Similarly, it is improper for the Government to institute a civil action to generate discovery for a criminal case.

Id. at 1573.

Tison only lifts up the proposition, clearly acknowledged by the Eleventh Circuit in United States v. Handley, that the Government cannot use discovery in a civil case, even through an eager but single minded third party, to develop evidence against a prospective criminal target. This proposition has nothing to do with the "voluntariness" of that target's responses to civil discovery requests. If CV 80-HM-1449-S was filed by Mr. Dees in order "to avoid the restrictions on criminal discovery" the products of that civil discovery are unavailable in any subsequent prosecution, whether the products were "voluntary" or not. In light of the new and substantial evidence the court concludes that Mr. Dees' "sole purpose" for taking depositions in CV 80-HM-1449-S was to push for Justice Department action.

During White's suppression hearing he invoked all evidence offered and received in all prior suppression hearings in the total case. The United States objected to the court's consideration of any evidence except that elicited at White's suppression hearing. Because in all prior suppression hearings the United States has been represented by counsel and has had an opportunity to confront all witnesses and to object to all evidence, the court, in its discretion, has considered all prior suppression evidence previously received, as well as the evidence received at White's suppression hearing.

At White's suppression hearing, the most interesting and provocative piece of evidence not previously revealed is that at the time White's civil deposition was taken on July 19, 1983, the federal criminal investigation had been reopened and was again in full swing. This necessarily was the result of Mr. Dees' feeding of his earlier civil depositions to the Department of Justice. The only other testimony at White's suppression hearing bearing on the "purpose" of the civil suit is the uncontradicted testimony of White himself to the effect that Mr. Williams, one of Mr. Dees' investigators, told White that "if you will cooperate we will go light on you". This is,...