Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
United States v. Lenwood Lewis White, United States of America v. Terry Joe Tucker, United States of America v. William Johnny Mason, Roger David Handley, David Lee Kelso, and Ray Winford Steele, United States of America v. William David Riccio, United States of America v. Ricky Lynn Creekmore, United States of America v. David Lee Kelso
Citations: 846 F.2d 678; 1988 U.S. App. LEXIS 7703Docket: 86-7699
Court: Court of Appeals for the Eleventh Circuit; June 7, 1988; Federal Appellate Court
The case involves six consolidated criminal appeals concerning eight defendants, with the United States appealing the district court's suppression of evidence, dismissal of the indictment against David Lee Kelso, and the acquittal of Ricky Lynn Creekmore after a jury conviction. The appeals are from the United States District Court for the Northern District of Alabama, and the Eleventh Circuit Court has reversed the district court's decisions, remanding the cases with instructions to assign them to a different judge. The factual background stems from a May 1979 incident where members of the Invisible Empire, Knights of the Ku Klux Klan, clashed with black marchers from the Southern Christian Leadership Conference (SCLC) in Decatur, Alabama. Prior to the march, SCLC leaders, including Reverend Arthur Turner, coordinated with Decatur Chief of Police Pack Self for security assistance. On the day of the march, an enhanced police presence was established. During the demonstration, Klan members entered the street, leading to violent confrontations with law enforcement, including assaults on police officers. Defendant David Lee Kelso attempted to breach the police line toward the marchers but was shot before reaching them, amidst further gunfire that caused the marchers to disperse. Several individuals, including police officers, were injured during a clash involving Klansmen, but the FBI's investigation did not find enough evidence to file federal charges, leading the Department of Justice to close its inquiry in late October 1979. In September 1980, Curtis Robinson, a black demonstrator, was prosecuted by the State of Alabama for shooting Kelso during the incident. Both Kelso and Terry Tucker testified at the trial. In December 1979, Kelso provided a deposition for a tort case against Robinson. In November 1980, the Southern Poverty Law Center (SPLC) initiated a civil suit in the U.S. District Court for the Northern District of Alabama against the Invisible Empire, Knights of the Ku Klux Klan, seeking monetary and injunctive relief for various violent acts, including those in Decatur, and requested the U.S. Attorney to investigate potential federal offenses by the defendants. District Judge Haltom oversaw the civil case, which included around fifty defendants, many of whom were also involved in the related criminal cases. On October 20, 1982, former Klansman Lloyd Letson testified for the plaintiffs, leading to his dismissal from the civil suit in exchange for his testimony about a Klan conspiracy. An Assistant U.S. Attorney attended the hearing and later sent the testimony transcript to Washington, prompting the Department to reopen its investigation in December 1982. Beginning January 27, 1983, SPLC attorney Dees deposed the civil defendants, showing them photographs from the Decatur incident, many of whom invoked their Fifth Amendment rights. On February 8, 1983, Judge Haltom mandated that the defendants identify themselves and other Klan members in the photographs. On July 27, 1983, Dees met with FBI and Department representatives, providing them with excerpts from the depositions that indicated Klan criminal activity. The Department had no prior awareness or input regarding the depositions, which Dees continued to gather and share with them. In May 1984, a grand jury indicted nine defendants, eight of whom are appellees, for conspiring to disrupt a Decatur parade, injuring police officers, and obstructing the investigation. Prior to trial, seven defendants sought to suppress depositions from a civil action by the Southern Poverty Law Center (SPLC), claiming coercion and violation of the Fifth Amendment. District Judge Acker initially granted this motion, ruling that the SPLC acted as a government agent. However, this decision was reversed, allowing the introduction of depositions at trial, provided confrontation rights were met. Upon remand, the district court severed the defendants' cases and set individual trial dates. In August 1986, the court ruled Tucker's SPLC deposition inadmissible and suppressed his testimony in a related state case, citing involuntariness and Fifth Amendment violations. Subsequent hearings in September and October 1986 resulted in the suppression of SPLC depositions from defendants White, Mason, Steele, Handley, and Kelso, as well as portions of Handley's deposition in a separate civil case, reinforcing the protection of his Fifth Amendment rights. On October 22, 1986, the district judge ordered the government to clarify why Tucker's case should not proceed to trial despite the suppression appeal and why the cases against Kelso and Handley should not be dismissed. The court decided to stay Tucker and Handley's cases but allowed Kelso’s case to proceed without the suppressed evidence. Ultimately, on November 19, 1986, the court dismissed Kelso’s indictment due to lack of prosecution. In a separate trial in November, Creekmore was found guilty of conspiring to violate civil rights but was later acquitted on the basis that the evidence did not meet statutory requirements. On November 21, 1986, the district court suppressed the SPLC depositions of Riccio, deeming them involuntary, prompting an appeal from the Government. The cases have since been consolidated for review. The Government argues that the district court erred by reconsidering the voluntariness of the SPLC depositions, asserting that the law of the case doctrine prohibits such reconsideration. This doctrine mandates that an appellate court's decisions must be followed in subsequent trial proceedings, encompassing both explicit decisions and those implied by appellate findings. The law of the case aims to conclude litigation and ensure compliance with appellate rulings, preventing relitigation of settled issues. A review of the district court's current opinions against its prior decisions and the appellate court's initial ruling reveals a violation of this doctrine. Initially, the district court found that none of the defendants had intelligently waived their Fifth Amendment rights and determined the SPLC acted as a government agent, leading to the depositions' suppression. However, the appellate court reversed this suppression, ruling that any compulsion by the SPLC could not be attributed to the Government and recognizing the civil action's legitimacy independent of its impact on the criminal investigation. The court clarified that the Government could use the depositions at trial, provided the confrontation clause was respected. Upon remand, the district court erroneously initiated new suppression hearings, claiming the voluntariness of the depositions had not been adjudicated, despite the appellate court's prior ruling implicitly upholding their voluntariness. Thus, the issue of Fifth Amendment voluntariness is deemed settled under the law of the case. Three exceptions to the law of the case doctrine allow a federal district court to deviate from an appellate decision: (1) introduction of new and substantially different evidence after the appeal, (2) a change in controlling authority that contradicts the appellate decision, and (3) a prior decision deemed clearly erroneous, leading to manifest injustice. The court interprets these exceptions narrowly, emphasizing that they must "specifically and unquestionably apply." In this case, the district court acknowledged that a prior ruling in Handley II limited its ability to reconsider voluntariness but argued that two exceptions were pertinent. The court cited Erwin v. Price, asserting a change in controlling authority necessitating the suppression of depositions. Erwin indicates that coercion is presumed in disciplinary investigations when a public employee is compelled to answer questions under threat of dismissal, shifting the burden to the government to prove voluntariness. However, the applicability of Erwin is questioned as it pertains to public employees, whereas the current context involves allegations against a nongovernmental actor. Similarly, the district court referenced Crane v. Kentucky, which emphasized the jury's right to hear evidence regarding the circumstances of a confession's acquisition, but it did not address the voluntariness standard nor the applicability of the Fifth Amendment to private entities. Consequently, neither Erwin nor Crane sufficiently supports the district court's reasoning for deviating from established law. Additionally, the district court cited the exception for substantial new evidence, claiming that new information indicated Morris Dees acted as the Government's agent and that the SPLC aimed to secure criminal indictments through its civil action. Lloyd Letson's testimony at the Creekmore trial included claims about his interactions with attorney Dees and AUSA Frohsin, suggesting Dees implied he would receive immunity if he testified truthfully. However, both Frohsin and Dees did not explicitly discuss immunity, leading the district court to conclude that Dees acted as Frohsin's agent and that the SPLC's civil action was primarily aimed at gathering evidence for a criminal case. The court noted that Frohsin's attendance at the hearing indicated his awareness of Dees' actions. Despite this, the court found no substantial new evidence that deviated from previous findings, including Dees' own 1984 testimony that did not suggest any illicit partnership with Frohsin. The district court also cited a claim by White regarding a promise of leniency from an SPLC investigator, interpreting it as pertaining to criminal prosecution, though it likely referred to civil litigation. Additionally, the court misinterpreted Dees' use of the term "charged" during a 1986 testimony, incorrectly inferring an identification with the Department of Justice. The examination of the transcript clarified that Dees was referring to the charges in his civil complaint, not criminal ones. Ultimately, the district court failed to provide new evidence of government influence over SPLC actions or any discussions of immunity, resulting in a reversal of its orders to suppress the depositions of several individuals involved in the case. The suppression of SPLC depositions was reversed as it violated the law of the case, prompting the court to address additional errors made by the district court to guide future proceedings. Key errors included a flawed interpretation of the Fifth Amendment by the district judge, who incorrectly stated that involuntary confessions are precluded regardless of whether the coercion came from the government or a private actor. The court clarified that only governmental coercion can lead to the suppression of statements under the Fifth Amendment, as emphasized in Colorado v. Connelly. The district court also erred in attributing the motives of SPLC's actions to the government, asserting that the behavior of private parties does not render evidence inadmissible. Furthermore, the district court incorrectly placed the burden on the government to prove the voluntariness of each deposition during remand, a standard applicable only in custodial interrogations. Proper safeguards are necessary to ensure a defendant's ability to waive Fifth Amendment rights voluntarily, highlighting that pressures in custodial settings create compulsion to incriminate rather than merely to disclose information. Concerns regarding the waiver of Fifth Amendment rights are significantly diminished in non-custodial interrogations. In these situations, individuals may inadvertently forfeit their privilege without a knowing waiver, and the Government is not required to prove voluntary waiver if the defendants were not in custody during the statements in question. None of the defendants were restrained or under the presence of government officials during their depositions, and the use of their disclosures does not violate their Fifth Amendment rights. The district court's requirement for the Government to demonstrate a knowing waiver was erroneous. Additionally, the district court incorrectly ruled that the defendants preserved their Fifth Amendment privileges by stipulating that objections could be made at trial during their depositions. This ruling fails to recognize that a witness must assert their Fifth Amendment rights during testimony; otherwise, the privilege is lost. The stipulation in question pertains to evidentiary objections and does not safeguard privileged material. Furthermore, the defendants did invoke their Fifth Amendment rights at various points, indicating they understood the stipulation did not protect those rights. Regarding the voluntariness of Tucker's testimony, the Government argued that the district court's suppression of it as involuntary was unjustified. The court's conclusion that Tucker was 'forced' to testify due to the subpoena disregards the norm that witnesses must testify truthfully unless they invoke the privilege against self-incrimination and demonstrate a realistic threat of self-incrimination. Witness testimony is not compelled under the Fifth Amendment unless the witness is required to answer despite a valid claim of privilege. In Tucker's case, he was not compelled to testify as he did not invoke a valid Fifth Amendment claim, and his lack of legal representation is deemed irrelevant. Regarding the untimely production of statements made by Tucker and Kelso, the Government argued that the court erred in suppressing these statements, asserting they were produced before trial and that neither defendant suffered prejudice. Federal Rule of Criminal Procedure 16(a)(1)(A) mandates the Government to provide recorded statements of defendants upon request. Failure to comply may lead the court to order compliance, grant continuance, or impose other appropriate measures. The court's decision on sanctions for discovery violations is reviewed for abuse of discretion. In determining sanctions, the district court must consider the reasons for the Government's delay, the prejudice to the defendant, and the feasibility of rectifying such prejudice through continuance. If sanctions are warranted, the court should impose the least severe sanction necessary to ensure compliance with discovery orders. The district court cited its authority under Fed. R.Crim. P. 16 as a basis for suppressing Tucker's testimony, noting that the Government did not provide a copy of his testimony to his counsel until August 6, 1986, with actual production occurring on August 20, 1986, shortly before Tucker's trial. The Government attributed this delay to its focus on an extensive appellate process related to other cases. The Government's late production of evidence violated Rule 16, but any potential prejudice to Tucker could have been mitigated by granting a continuance. The court highlighted that a clear discovery violation does not exempt a judge from considering appropriate sanctions, emphasizing that suppression of evidence was not the least severe remedy. A continuance would have allowed Tucker to incorporate the testimony into his defense, aligning with Rule 16's purpose of promoting justice. The transcript of Tucker's testimony was publicly available to both parties, meaning the Government's failure to provide it did not violate Rule 16. Therefore, the district court improperly suppressed Tucker's testimony. Regarding Kelso's deposition, the district court suppressed it due to the Government's late disclosure, even though the trial was five weeks away. The court found this delay egregious, asserting that Kelso was prejudiced and a continuance could not remedy this. However, Kelso's attorney had known about the deposition since 1984 and had not demonstrated actual prejudice from the late disclosure. The court's reliance on prior cases for justification of suppression was flawed, as the Government did not intentionally withhold the deposition and believed it had complied with the rules. With ample time before the trial, the late production should not have caused significant prejudice, and a continuance would have sufficed. Thus, the district court abused its discretion in suppressing Kelso's deposition. The Government is appealing the district court's decision to dismiss the indictment against Kelso. This dismissal followed the suppression of Kelso's deposition, which the Government contested. The trial court directed the Government to proceed to trial; however, the Government's refusal to do so before appealing the suppression order led to the indictment's dismissal for failure to prosecute, and also due to the Government's failure to disclose the name of an unindicted co-conspirator, Jerry Smith, in violation of a discovery order. Dismissal of an indictment for prosecutorial misconduct is deemed an extreme measure and should be rare. The Government's actions, aimed at appealing a suppression order, do not constitute severe misconduct that would warrant such a dismissal. Additionally, the obligation to reveal unindicted co-conspirators' names is contingent upon a discovery order; in this case, there was no such order requiring disclosure, as the magistrate had denied requests from other defendants for this information. Kelso also did not request the names of unindicted co-conspirators, further absolving the Government from this obligation. Furthermore, the appeal addresses the district court's grant of a judgment of acquittal for Creekmore following his jury conviction for conspiracy under 18 U.S.C.A. Sec. 245(b)(2)(B). The district court found that the Government failed to establish that the parade was "provided or administered by" the city of Decatur, an essential element of the charge. The only relevant case cited, United States v. Griffin, involved a different context where the court determined the city was responsible for the parade due to local ordinances governing such events. The city of Decatur's significant involvement in the organization and oversight of a parade qualifies it as having been "administered" by the city under relevant legal standards. In 1978 and 1979, the city enacted three ordinances addressing civil rights demonstrations: one authorized the Chief of Police to regulate unlawful assemblies, another prohibited loitering that obstructs public streets, and a third restricted firearms possession at public demonstrations. These ordinances, alongside Chief Self’s active role in planning security for the parade, support the argument that the city administered the event. Testimony indicated that Chief Self coordinated with SCLC representatives about the parade logistics and provided extra police presence for protection. On the demonstration day, police monitored the Klan gathering and facilitated the parade while attempting to clear KKK interference. However, the district court ruled that the police's actions did not constitute special service since they are generally obligated to protect the public. The court found the ordinances insufficient to equate to a parade permit, which was deemed necessary for determining city administration of the event, despite recognizing that Decatur lacked a permit requirement. The court's conclusion, based on a narrow definition of "administer," was criticized for being overly simplistic, as it suggested that no demonstrations would meet the statute's coverage criteria if police do not directly control them. Additionally, the ruling overlooked the legislative intent of Section 245, which aims to address racially motivated violence during public gatherings. The statute in question is intended to be interpreted broadly to fulfill its remedial purpose, specifically to empower the Federal Government to combat violent interference with civil rights, particularly when motivated by race or discrimination. Legislative history, including statements from both supporters and opponents of the bill, emphasizes the wide scope of protection intended by the act. The district court's failure to consider this intent and reliance solely on dictionary definitions of statutory language was deemed a flawed approach, leading to a reversible error in granting a judgment of acquittal. Additionally, the Government argues for reassignment of the case to a different district judge due to concerns about impartiality, citing prior reversals of that judge's findings. The Court references precedent that supports reassignment when a judge demonstrates an inability to set aside erroneous views. Factors for considering reassignment include the likelihood of the original judge struggling to disregard previous findings, the need to maintain the appearance of justice, and the potential for unnecessary waste if reassignment does not occur. Although not formally adopted, these considerations have been acknowledged in prior cases. Other circuits have upheld similar legal principles, referencing cases such as *United States v. Garcia* and *United States v. Sears, Roebuck & Co.* The records indicate that Judge Acker struggles to set aside his 1984 findings, leading him to impute the conduct of the SPLC to the Government without new evidence, despite previous reversals by this Court. Reassignment of the case is deemed necessary to maintain the appearance of justice and promote a quicker resolution. The remand to the Chief Judge of the Northern District of Alabama emphasizes the importance of not only achieving justice but ensuring it is perceived as such, referencing *Rex v. Sussex Justices*. The potential waste of resources in preserving fairness is noted, and similar circumstances in prior cases have justified reassignment due to a judge's inability to remain impartial, as demonstrated by Judge Acker's hardened position against the Government. The district judge's numerous errors are addressed, including the reversal of the suppression of SPLC depositions and the testimony of Tucker, Kelso, and Handley, as well as the dismissal of Kelso's indictment. Judge Acker's grant of acquittal for Creekmore is also reversed due to misinterpretation of Section 245(b)(2)(B). The cases are remanded for reassignment to a different district judge for further proceedings aligned with this opinion. Additionally, the indictment charges conspiracy to intimidate participants in a public parade based on race and color, with implications of inadequate drafting of the indictment’s language. Demonstrating that the municipality "provided" or "administered" the parade may pose challenges. Although a well-formulated indictment could be established under the relevant statute, a defendant cannot be convicted of an offense not explicitly charged in the indictment. The language in the indictment, however, allows for a broader interpretation. Legislative history of 18 U.S.C. 245(b)(2)(B) suggests it should imply "a public parade" that utilized streets and required police protection from the municipality of Decatur. The parade organizers consulted with Decatur authorities concerning the route and security, indicating the necessity of municipal involvement given the anticipated violence. The history highlights that violent, racially motivated interference with street use connected to First Amendment rights constitutes a punishable offense under the statute. Statements from senators during debates acknowledged that streets and sidewalks are local government facilities, reinforcing the idea that police protection is also a state-provided service. Thus, allegations of violent racial interference with the parade effectively claim disruption of a state-provided service, justifying the charges under 18 U.S.C. 245(b)(2)(B). Creekmore's conviction is upheld, leading to a reversal of the District Court's judgment. Evidence presented at trial showed Creekmore attacking officers with clubs. The original plaintiff was the People's Association of Decatur, later substituted with the SCLC. While Creekmore was named in the civil case, he was not served. The ninth defendant, Godfrey, pleaded guilty in a plea bargain. In *United States v. Godfrey*, 651 F.Supp. 869 (N.D.Ala.1986), key points include the absence of depositions from Kelso and Creekmore in the SPLC civil action against the Invisible Empire, although the civil suit aimed to gather evidence for criminal prosecution. Dees invited Frohsin to a hearing, where Frohsin attended as the FBI agent's legal representative. Tucker testified that Dees offered to persuade the Department not to indict him if he cooperated with the SPLC; Dees denied this, but the district court found Tucker's account credible. The court noted that for suppression of evidence to be applicable, the government must have knowledge or participation in the alleged misconduct. A discussion regarding res judicata revealed that a conviction in one case would not preclude prosecution of new conspiracy charges related to events post-Montgomery burning. The district court highlighted the significance of a letter from Dees to Frohsin, implying prior discussions about the government's case and the potential bias of witnesses. This letter was referenced during a suppression hearing, indicating a prior agreement not to pursue certain witnesses in exchange for their testimony. The Court found that the district court improperly relied on a letter deemed insignificant in Handley II and violated the law of the case. During the first suppression hearing, the district court suggested an exchange of information between the Department and Dees, citing a chance meeting in August 1983 between Dees and Rinzel, which the Court in Handley II did not recognize as evidence of illicit collaboration. The district court's reliance on this evidence was thus precluded. Additionally, other evidence presented by the district court, intended to show Dees' singular focus on a criminal investigation, was not substantially different from prior evidence and did not alter the Court’s prior ruling that the SPLC's civil action stands independent of criminal implications. The SPLC has successfully secured consent decrees against a majority of civil defendants, affirming the civil action's validity, and continued its pursuit of these defendants regardless of criminal indictments. Furthermore, neither White nor Mason sought suppression of their depositions in 1984, but even if the law of the case were not applicable to them, the suppression would still be erroneous due to the absence of coercion. White was not subject to Judge Haltom's discovery order at the time of his deposition and was unaware of it, hence he could not have been coerced. His deposition was voluntary. Similarly, Mason's deposition, taken after a meeting related to Dees, also lacked coercion; he was not a party to the civil action and did not invoke his Fifth Amendment privilege at that time, effectively waiving any rights. The Court referenced United States v. Mekjian, emphasizing that evidence obtained from private parties is admissible unless there is government encouragement or knowledge of ongoing cooperation, which was not present in this case. The Government did not prompt the SPLC to conduct depositions or provide information regarding a criminal investigation, meaning any coercive actions by the SPLC cannot be attributed to the Government. Defendants who did not invoke their Fifth Amendment rights waived that privilege. Each SPLC deposition included a standard clause stating that objections could be made at trial rather than during the deposition. The district court incorrectly relied on the case of Jordan v. Medley, which permitted an evidentiary objection to prior arrest testimony but did not pertain to the invocation of Fifth Amendment rights. The Government indicated it would not use deposition testimonies from Tucker or Riccio made after they asserted their Fifth Amendment rights. Tucker claimed he was misled by Dees into thinking he did not need an attorney, but this interaction does not prove his trial testimony was involuntary. The district court's decision to suppress Tucker's testimony, claiming it was a product of the involuntary SPLC deposition, was unfounded since the deposition was deemed voluntary. The court referenced Euceda-Hernandez, where suppression was not allowed as a preventative measure and noted that the Government's violation of Rule 16 was not egregious, as the defendant should have been aware of the testimony. The district court maintained jurisdiction to address a motion to dismiss the indictment despite a pending interlocutory appeal. On November 14, 1985, the district court ruled that all defendants' motions would be considered joint going forward. This decision came over a year after other defendants had requested the names of unindicted co-conspirators, meaning the ruling did not retroactively apply to benefit Kelso from that earlier motion. The Government contested the district court's finding regarding its obligation to disclose Smith's involvement, arguing that it had provided Kelso's defense attorney with Smith's deposition and an FBI interview, thereby revealing Smith's activities even if he was not explicitly named as an unindicted co-conspirator. The legal discussion also revolved around a specific statute prohibiting the use of force or threats against individuals based on race while they participate in state-administered activities. The court noted that the Government did not pursue whether the city "provided" the parade, but acknowledged the city's provision of streets and police protection for the event. The district court emphasized the need for strict statutory interpretation in criminal cases, while also highlighting that such interpretation should align with Congressional intent. The document mentions that unnecessary duplication in the district court would be avoided since five cases remain untried, and one case is being remanded for judgment following a jury's guilty verdict.