Full opinion text
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 subjudice. A ninth defendant has pled guilty to a federal information concerning similar charges. Sic * Sic * " sic s(c 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 different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding,____ Fed.R.Evid. 804(b)(1) (emphasis supplied). Neither this court nor the Eleventh Circuit has purported to rule upon the question of whether any civil deposition taken in the course of CV 80-HM-1449-S was taken “in compliance with law”, namely, not in violation of the Fifth Amendment privilege against self-incrimination. Thus, the “law of the case” does not preclude further inquiry into the voluntariness of each civil deposition and whether or not the witness knowingly waived his Fifth Amendment rights when deposed. This analysis is entirely consistent with the following expression by the Eleventh Circuit in United States v. Handley: A defendant has standing to object on the ground of the fifth amendment self-incrimination privilege to the admission only of his own statements. 763 F.2d at 1404. The question of the admissibility of the deposition of a particular defendant in this case over his own objection is, then, still an open question. If the court has misread the Eleventh Circuit’s opinion in this regard, and the “law of the case”, strictly applied, precludes all further inquiry into the “voluntariness” issue, this court again looks to Longshoremen’s which recognizes the following two exceptions, in addition to the exception previously discussed: (2) controlling authority has since made a contrary decision applicable to such issue, or (3) the prior decision was clearly erroneous and would work manifest injustice. 623 F.2d at 1058. Handley was decided by the Eleventh Circuit on June 25, 1985. It would certainly not be proper for this court to hold that the Eleventh Circuit’s decision “was clearly erroneous and would work manifest injustice.” But there is subsequent controlling authority which requires a careful look. Erwin v. Price, 778 F.2d 668 (11th Cir.1985), was decided on December 16, 1985, several months after Handley. In Erwin the same Court holds: The district court held that Erwin had no fifth amendment right to refuse to answer questions narrowly and specifically directed to his official duties and upheld his firing. It is settled that the fifth amendment privilege against self-incrimination permits a person “not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973). He may refuse “unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.” Id. at 78, 94 S.Ct. at 322. A public employee may not be coerced into surrendering the privilege by threat of sanctions, Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1 (1977), and if he has been coerced into waiving the privilege, his answers are not admissible against him in a subsequent criminal trial. Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967) . However, if he has not been required to waive this protection, but has refused to answer questions “specifically, directly, and narrowly relating to the performance of his official duties,” the privilege would not be a bar to dismissal. Gardner v. Broderick, 392 U.S. 273, 278, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968) . We have held that the privilege against self-incrimination thus “affords a form of use immunity which, absent waiver, automatically attaches to compelled incriminating statements as a matter of law. ” Hester v. City of Milledgeville, 777 F.2d 1492, 1496 (11th Cir.1985) (emphasis added). Plaintiff concedes that the questions at issue here were properly related to his duties and that he was assured that he was not being asked to waive his constitutional privilege. He contends, however, that he is entitled to a statutory grant of use immunity or a binding agreement from the district attorney not to use his statements in a criminal prosecution. He argues that without such a grant courts may ignore the many assurances given by his superiors and admit the statements. He also claims that he will unfairly have to bear the risk of persuading the court in a voluntariness hearing that by making his statement he did not waive his privilege. The logic of our holding in Hester leads us to hold that where there is a formal disciplinary investigation during which a public employee is ordered to answer proper questions under threat of dismissal, coercion is presumed and the govern- merit bears the burden of demonstrating voluntariness. See Hester v. City of Milledgeville, 777 F.2d 1492, 1495-96 (11th Cir.1985). Therefore, “any grant of use immunity to the plaintiff[ ] would have been duplicative.” 778 F.2d at 669-70 (emphasis in both original and supplied). Then, after Handley and Erwin the Supreme Court decided Crane v. Kentucky, — U.S. -, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986), on June 9, 1986. The Supreme Court there unanimously says: It is by now well established that “certain interrogation techniques, either in isolation, or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.” Miller v. Fenton, 474 U.S. —, - [, 106 S.Ct. 445, 449, 88 L.Ed.2d 405] (1985). To assure that the fruits of such techniques are never used to secure a conviction, due process also requires “that a jury [not] hear a confession unless and until the trial judge [or some other independent decisionmaker] has determined that it was freely and voluntarily given.” Sims v. Georgia, 385 U.S. 538, 543-544[, 87 S.Ct. 639, 642-43, 17 L.Ed.2d 593] (1967). See generally Jackson v. Denno, 378 U.S. 368[, 84 S.Ct. 1774,12 L.Ed.2d 908] (1964). In laying down these rules the Court has never questioned that “evidence surrounding the making of a confession bears on its credibility” as well as its voluntariness. Id., at 386, n. 13 [, 84 S.Ct. at 1786, n. 13.] As the court noted in Jackson, because “questions of credibility, whether of a witness or of a confession, are for the jury,” the requirement that the court make a pretrial voluntariness determination does not undercut the defendant’s traditional prerogative to challenge the confession’s reliability during the course of the trial. Ibid. To the same effect was Lego v. Twomey, supra, [404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, 1972] where the Court stated, “Nothing in Jackson [v. Denno] questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has been as free since Jackson as he was before to familiarize a jury with circumstance that attend the taking of his confession, including facts bearing upon its weight and voluntariness.” 404 U.S., at 485 [486] [, 92 S.Ct. at 625]. Thus, as Lego and Jackson make clear, to the extent the Court has addressed the question at all, it has expressly assumed that evidence about the manner in which a confession was secured will often be germane to its probative weight, a matter that is exclusively for the jury to assess. The decisions in both Jackson and Lego, while not framed in the language of Constitutional command, reflect the common-sense understanding that the circumstances surrounding the taking of a confession can be highly relevant to two separate inquiries, one legal and one factual. The manner in which a statement was extracted is, of course, relevant to the purely legal question of its voluntariness, a question most, but not all, States assign to the trial judge alone to resolve. See Jackson v. Denno, supra, [378 U.S.] at 378[, 84 S.Ct. at 1781.] But the physical and psychological environment that yielded the confession can also be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence, (emphasis supplied). 106 S.Ct. at 2145-46 (emphasis in original and supplied). Because no trial judge and no appellate court has yet ruled upon the voluntariness of any of the civil depositions, and because both Erwin and Crane constitute “controlling authority” enunciated after Handley, this court concludes that the “law of the case” does not preclude further inquiry into whether or not each of the depositions was freely and voluntarily given by the deponent. In this regard it is more than interesting that Mr. Dees, the lawyer who obtained and used a court order which denied any Fifth Amendment privilege to defendants and required them as civil defendants to submit to civil deposition, when resisting those civil defendants’ demand for a trial setting in Cv 80-HM-1449-S, said: These [criminal] defendants all key to plaintiffs’ case, would likely take the Fifth Amendment in a civil trial that preceded the criminal trial, thereby frustrating the civil proceedings, (emphasis supplied). Apparently Mr. Dees believed that these defendants had no Fifth Amendment rights before they were indicted but have acquired those rights by virtue of the indictments he so fervently sought. While the United States is not bound by any concession made by Mr. Dees in light of the now recognized absence of any agency relationship between the two, at least Mr. Dees seems to acknowledge that the defendants still have a privilege against self-incrimination which would imply a need to inquire into the voluntariness of their submission to his depositions. Because the facts surrounding the taking of the deposition of each defendant-deponent is, or may be, unique, all motions to suppress for an alleged lack of voluntariness will be carried with the case to trial, and each defendant will be afforded an opportunity without opening him to cross-examination on any other subject, to offer testimony relevant only to the issue of the voluntariness of his own deposition. The Government will, of course, have an opportunity to respond. This inquiry will be conducted outside of the presence of the jury, at which time the court will rule on the admissibility of the particular deposition to be offered by the Government. The burden of proof will be on the United States. (3.) Motion for Dismissal Based on Immunity. In the Solicitor General’s memorandum filed in the Supreme Court of the United States in opposition to the petition of defendant Derane O’Neil Godfrey for a writ of certiorari the Solicitor General correctly conceded that the Eleventh Circuit had not been called upon to address, and did not address, the immunity issue now raised for the first time by defendants after remand. The Solicitor General’s memorandum states at pages 10-11: Petitioner Godfrey argues (Pet. 6-15) that the court of appeals erred in concluding that the federal immunity statute, 18 U.S.C. 6001 et seq. does not apply in a private civil law suit. See Pillsbury Co. v. Convoy [Conboy], 459 U.S. 248, 261 n. 20[, 103 S.Ct. 608, 616, 74 L.Ed.2d 430] (1983) (reserving the issue whether the immunity statute applies in civil proceedings). Godfrey concedes (Pet. 9) that the court of appeals did not expressly so hold, but he reads the court’s opinion to rest implicitly on that proposition. Such a reading of the decision below is incorrect and does not call for review by this Court. * Sfc 2jC * * 3k For this reason, it is clear that the court of appeals’ decision does not hold, even implicitly that the immunity statute was inapplicable in the SPLC’s lawsuit. Rather, the court rejected petitioner’s Fifth Amendment claim on the merits, and it had no occasion to address the statutory immunity issue in the circumstances presented here, (emphasis supplied). Because the “immunity” issue was not addressed by this court or by the Eleventh Circuit, the “law of the case” does not apply to this issue, which was an issue discussed in Erwin as the flip side of the “voluntariness” coin. Erwin argues strongly for “immunity” when a defendant is forced to testify. All defendants here, speaking through Godfrey’s counsel, make a strong argument for statutory immunity or, in the alternative for implied, equitable, or de facto immunity, but it occurs to this court that the immunity question, whether statutory or de facto, like the “voluntariness” question, can better be answered at trial by a consideration of evidence offered outside the presence of the jury and bearing on the issue. As requested by Godfrey and as suggested by In re Martin-Trigona, 732 F.2d 170 (2d Cir.1984), and Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), a mini-hearing will be conducted at or immediately prior to trial on the issue of immunity as to each defendant who claims it. It certainly cannot apply to those two defendants who were not deposed. Preparation on this issue should not unduly burden either the United States or any defendant, and the court sees no compelling reason for ruling in advance of trial on the issue. (If.) Motion for Dismissal on the Basis of Alleged Preindictment Delay. In its memorandum opinion of November 14, 1985, this court voiced concern over the possible prejudice which may be occasioned by the absence of defense witnesses resulting from the long passage of time between the events described in the indictment and the bringing of the indictment. In its order of July 27, 1984, from which the United States appealed, this court found: ... the delay which took place after the reopening of the file on December 7, 1982, was for the purpose of obtaining tactical advantage. The Government not having availed itself of the opportunity to review this finding when it had the opportunity, the finding has also become the “law of the case”. Further, however, this court has found that defendants have failed to demonstrate prejudice of the kind recognized in United States v. Puett, 735 F.2d 1331 (11th Cir.1984). Perhaps this finding, too, has become the “law of the case” which would preclude the court’s reopening of the issue despite the real possibility that actual and substantial prejudice may result from the death or unavailability of one or more material defense witnesses such as Valerie Vincent, Kelly Moore, Marion Gower and Pack Self, who was Chief of the Decatur Police at the time of the incident. The absence of Pack Self may be crucial to the question of if and how the SCLC parade was “administered” by the City. At least one of these four witnesses died after the United States took its interim appeal from the earlier suppression order. Defendants argue that by taking the said appeal the United States compounded the risk of substantial prejudice, and assumed that added risk. This is an intriguing argument, but one which, when like procedural circumstances occur, any defendant predictably would make. The difference here, of course, is that the United States waited until days before the statute of limitations ran before bringing the indictment in the first place. Nevertheless, the court is not ready to conclude on what has been presented that “substantial prejudice” will result from the long preindictment delay. The court is largely influenced on this issue by Stoner v. Graddick, 751 F.2d 1535 (11th Cir.1985), in which the Eleventh Circuit upheld a conviction after a 19 year pre-indictment delay. This court admits, of course, that in Stoner the indictment was not brought just days before the running of the statute of limitations, because the statute of limitations there was coterminous with the life of Stoner. At trial the court will, of course, listen to the evidence with an eye to the prejudice, if any, which is caused by the absence of a particular witness or witnesses who, if living, could have testified concerning crucial facts in issue. (5.) Motion for Dismissal of the Indictment Based on the Character of the SCLC Parade and its Relationship with the City of Decatur. Count One of the indictment invokes 18 U.S.C. § 245(b)(2)(B) and 18 U.S.C. § 371. Count Two invokes 18 U.S.C. §§ 2 and 245(b)(4)(B). Count Three invokes 18 U.S.C. §§ 2 and 245(b)(4)(B). Counts One, Two and Three each involves activity during a parade allegedly “provided and administered by the City of Decatur, a subdivision of the State of Alabama.” While the indictment uses the conjunctive word “and”, implying an undertaking by the Government to prove that the parade was both “provided” and “administered” by the City, the statute is alternative in its language, and the court will give the Government the benefit of an “or” instead of an “and” and overlook any sloppy draftmanship. Count Four, on an entirely different theory, charges defendants Handley, Steele, Riccio, Mason and White with obstruction of justice. The first question to be answered is whether the SCLC parade described in the indictment was a “benefit, service, privilege, program, facility or activity” as those terms are used in 18 U.S.C. § 245. The government claims the parade was an “activity”. Defendants argue the SCLC parade was not an “activity”, citing the legislative history which enumerates the following “activities” covered by § 245: Interference with voting in federal elections. Interstate travel. Interstate commerce. Access to places of public accommodation. Equal employment opportunity. Equal enjoyment of state facilities such as public schools, municipal parks, public assistance programs and the electoral process. 1968 U.S.Code Cong. & Admin.News, at 1842. There may be no mention of a “parade” as an “activity” in the legislative history, but the history could not be expected to mention everything. The maxim, “expressio unius est exclusio alteráis” may apply to legislation itself but not to legislative history- Judge Flannery in United States v. Griffin, 585 F.Supp. 1439 (M.D.N.C. 1983, 1984), held that a civil rights parade is an “activity” within the intended coverage of 18 U.S.C. § 245. This is the only expression on the subject from any federal court in the land, and while not binding on this court, persuades this court that the SCLC parade which used the public streets of Decatur in 1979 did constitute an “activity” protected by § 245 from interference. Judge Flannery’s interpretation does arguably bring the constitutionality of the statute into question, in that it makes subsection (b)(5) susceptible to being interpreted as a proscription against a peaceful assembly which opposes a denial of the opportunity to participate in a peaceful assembly. Such an interpretation might trigger the principle of constitutional construction holding that in order for a statute not to violate “due process” it must make good sense in context. The constitutionality of this statute is not here challenged by defendants, and this court is inclined to agree with Judge Flannery that a parade which necessarily uses a public street (especially when the parade is designed to convey a message) is an “activity” within the purview of § 245. The more important statutory issue is whether or not the public parade made the basis of this indictment was “provided or administered by the State or a political subdivision,” another requirement in 18 U.S.C. § 245 if interference with the “activity” is to constitute criminal conduct. An essential element of the offense here charged is that the activity be “provided by” or “administered by” a governmental unit. In an earlier opinion this court indicated that it finds considerable merit in defendants’ position respecting this issue. The undisputed fact is that this parade was not in anyway “provided” by the City of Decatur in the sense of being sponsored by or encouraged by the City. The Government does not seem to argue that the parade was “provided by” the City of Decatur. Reaching the alternative question, this parade was not supervised by that City pursuant to any city ordinance which required a parade permit. Judge Flannery in United States v. Griffin, as a crucial part of his finding that the City of Greensboro “administered” the parade, expressly relied on the following fact: The Greensboro Code of Ordinances contains lengthy and highly specific requirements and regulations applicable to parades, and defines the responsibilities and functions of both parade participants and the City. 585 F.Supp. at 1442. Judge Flannery’s finding that the Greensboro parade was “administered” by the City depended upon the fact that Greensboro required a parade permit. In a second opinion entered in the Greensboro case on April 3, 1984, Judge Flannery held: Defendants allege that the meaning of “administered” is an open question upon which wide ranging evidence should be adduced at trial. The government asserts that the only factual question that the jury must decide, on this issue, is whether the City of Greensboro issued a parade permit for this parade. If the City issued a permit, argues the government, then as a matter of law the parade was “administered” by the City, and Mr. Osborne’s testimony as proferred is irrelevant. * * * * * * This Court finds, for the reasons stated above and in its Memorandum of October 6, that a parade for which a permit is issued by a city, and for which routine monitoring by the police was planned, is an activity “administered” by that city. 585 F.Supp. at 1444, 1446 (emphasis supplied). This court notices Judge Flannery’s careful use of the conjunctive word “and” rather than the disjunctive word “or”. Judge Flannery reached his conclusion based on the undisputed fact, argued by the government as the controlling fact, that there was a parade permit. Defendants in brief predict the following testimony on this subject: 1. There was no requirement that the SCLC apply for a parade permit or set forth the objectives, time, date or proposed route of parade. 2. The City placed no conditions on the parade. 3. The City did not limit the size of posts supporting plaques or signs. 4. The City did not inquire into the number of persons who would constitute the parade. 5. The City did not inquire into whether or riot there would be vehicles in the parade. 6. The City did not establish a parade route. 7. The City in no way certified that the parade would interrupt the safe and orderly movement of traffic contiguous to its route. 8. The City imposed no limitations on the parades so as to assure that there would not be a harmful diversion of City services, e.g., police officers, firefighting equipment or ambulance services. As stated, an essential element of the offense here charged is that the parade was either “provided by” or “administered by” the City. The burden of proving this essential element is on the United States under the standard “beyond a reasonable doubt”. Although defendants may correctly predict the evidence on the subject, a dismissal of the indictment now for a predicted failure of proof by the Government would be premature and would be uncalled for. If the Government fails to meet its burden of proof on this, or, for that matter, any other essential element of the offense, a motion for judgment of acquittal at the end of the Government’s case will, of course, be in order. Without deciding the issue, this court tends to agree with Judge Flannery’s use of the conjunctive “and”, meaning, of course, that if there was no parade permit required or issued, it may portend badly for the United States. (6.) Motion for Continuance Pending Final Adjudication of the Civil Case. While this court strongly disagrees with Mr. Dees’ formally expressed belief that the criminal case should proceed to a conclusion before his civil case is tried, and fully understands the desire, and perhaps the need, for the civil defendants, before their criminal trials, to obtain appellate review of the civil judge’s order requiring them to submit to deposition (a review which cannot take place until the civil case reaches final judgment), this court, as a criminal court, cannot await the final adjudication of a civil case which has now been pending since November 3, 1980, and in which the very first motion to dismiss has not yet been ruled upon. If this court granted such a continuance, the continuance might be for years, and that would be unfair both to the United States and to these defendants. Mr. Dees’ response to the motion to set his civil case for trial has already been quoted several times. Pertaining to the issue now being addressed Mr. Dees said: Should there be convictions or additional guilty pleas [in the criminal case], they would be res judicata in the pending civil case. This court cannot help but wonder out loud if an acquittal in the criminal case would be res judicata in the civil case? Speculation on this question is unnecessary to a determination of whether or not to continue the criminal case for an indeterminate period of time. Although the defendants’ motions for a continuance have considerable merit under the unique circumstances, the motions will be denied. (7.) Motion for Severance. The following facts are relevant to the defendants’ motions for a severance seeking a separate trial for each defendant. A. All nine defendants are not named in each of the four counts of the indictment. Differing issues as between counts and as between defendants will complicate an already complicated jury trial and create a potential for the prejudice of one defendant by evidence bearing only on those counts in which he is not charged. B. Two defendants out of the nine were not deposed in the civil case. Therefore, any controversy over the admissibility of civil depositions, whatever the outcome of the offers, might unduly prejudice these two. C. The question of the voluntariness of each civil deposition will or may be controlled by differing facts and circumstances. The admissibility as to each must be decided separately, a fact which would necessarily elongate a combined trial and potentially be confusing to a jury. D. Defendant Riccio is now in federal custody after his conviction of another federal crime. He will obviously be under careful surveillance during trial and his presence under the circumstances is potentially prejudicial to the other defendants. E. The court has received several rather strange letters from defendant Riccio. They have not been shared with counsel but placed under seal. They indicate mood swings and unpredictable courtroom behavior. F. Defendant Riccio only recently participated in a widely viewed CBS prime-time television program where he uttered threats and exhibited bizarre beliefs. The adverse publicity resulting from this program may have already slightly prejudiced both Riccio and his co-defendants. A brief filed by the United States in opposition to severance states, inter alia: Any prejudice associated with Mr. Riccio’s comments [the CBS program] may be cured by severing him and trying the other defendants jointly. The Government’s brief does not mention the comments made by Mr. Dees on the same CBS program in which Riccio participated and their possible prejudicial effect. In any event the United States seems to be conceding that a joint trial, if it includes Riccio, may be prejudicial to the other eight defendants. G. The Government will probably want to offer Riccio’s T-V diatribe against him, and it may very well be admissible. H. Two defendants, Mason and White, did not file suppression motions prior to the earlier appeal by the United States and are arguably not bound by the “law of the case” as a consequence of the Eleventh Circuit’s mandate in Handley, to which they were not parties. I. There is a very serious question as to the admissibility of an individual civil deposition taken of one defendant as against his co-defendants, even if voluntary. In its opinion in Handley the Eleventh Circuit clearly recognizes this serious problem by pointedly concluding its opinion with the following pregnant phrase: ... assuming satisfaction of confrontation concerns. See United States v. Feldman, 761 F.2d 380 (7th Cir.1985). 763 F.2d at 1406. In its briefs the United States claims not to perceive any problem with the Confrontation Clause or with the Federal Rules of Evidence, and seems to expect that all civil depositions will be received into evidence at a joint trial. The United States overlooks both the language of Federal Rule of Evidence 804(b)(1) and the recent lesson in Feldman, cited favorably by the Eleventh Circuit in Handley as its very last remark. Rule 804(b)(1) states: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Fed.R.Evid. 804(b)(1) (emphasis supplied). It will be difficult, if not impossible, for the United States to satisfy the exception contained in Rule 804(b)(1). It will have the burden of proving that “the party against whom the testimony is now offered had an opportunity and similar motive [in CY 80-HM-1449-S] to develop the testimony by direct, cross, or redirect examination.” This view is solidly confirmed by Feldman, which dealt with very similar facts. There the Seventh Circuit says: First, the co-defendants Feldman and Martenson did not have a meaningful opportunity to cross-examine Sanburg during his deposition. Although it is true that Feldman and Martenson had notice of the deposition, at the time of Sanburg’s deposition the co-defendants had no knowledge of the agreement between the U.S. Attorney and Sanburg that Sanburg would not be the subject of the grand jury investigation. Nor did they have any formal notice of criminal proceedings against them, and the evidence discloses that the grand jury investigation had not commenced when San-burg was deposed. Feldman and Martenson had no reason to suspect that Sanburg would incriminate them on criminal charges. In these circumstances, mere notice of the deposition does not constitute the opportunity, in any real sense, for Feldman and Martenson to cross-examine Sanburg. In Phillips, by contrast, the defendant had been indicted before the hearing and therefore knew or should have known that his accomplice might incriminate him on criminal charges. There is another distinguishing factor. Because no criminal indictment had been entered in the present case, the co-defendants would not have had the issues framed with sufficient clarity to allow for an intelligent cross-examination even if the defendants had been present during Sanburg’s deposition. To contrast again with Phillips, the defendant, knew at the time of Brownfield’s interrogation of the specific charges that he was to defend against. sj< s(s * * sic * The Sanburg deposition was the heart of the prosecution’s case against the co-defendants. At the time of the deposition, however, no criminal charges were pending against Feldman and Martenson, they had no reason to suspect that they should cross-examine Sanburg, and there was no party at the deposition who could be deemed a predecessor in interest to Feldman or Martenson. The trial court therefore erred in admitting the deposition under Fed.R.Evid. 804(b)(1). The admission of the deposition also violated the Confrontation Clause because the deposition did not bear sufficient indicia of reliability as articulated in Ohio v. Roberts, 1980, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 607-08, and in United States ex. rel. Haywood v. Wolff, 7 Cir.1981, 658 F.2d 455, 463, cert denied, 1981, 454 U.S. 1088, 102 S.Ct. 649, 70 L.Ed.2d 625. United States v. Feldman, 761 F.2d 380, 383-84, 389-90 (7th Cir.1985). These statements by the Seventh Circuit could just as easily have been made in the instant case. The only expression by the Seventh Circuit with which this court disagrees is its apparent belief that a civil deposition is admissible in a criminal trial if a “predecessor in interest” had an opportunity and reason to cross-examine. As this court reads Rule 804(b)(1) the words “in a civil action or proceeding” refer to the proceeding in which the deposition is offered and not to the proceeding in which it was taken. Since the Eleventh Circuit decided Handley, citing Feldman, the Eleventh Circuit has also decided United States v. Caldwell, 771 F.2d 1485 (11th Cir.1985), which, like Handley, involved an alleged conspiracy. The Eleventh Circuit stated: We decide in this case whether the district court correctly excluded coconspirators’ statements and whether the government presented substantial independent evidence, absent coconspirators’ statements, of a conspiracy to commit extortion, as charged in Counts III and IV of the indictment. ****** In this case ... the government sought to treat the coconspirators’ statements as ordinary statements in evaluating their admissibility. Although the government advances a creative approach, it cannot overcome the fact that the testimony it presented comprised coconspirator statements, only admissible against the declarant defendant in the absence of independent evidence showing a conspiracy. Fed.R.Evid. 801(d)(2)(A); [U.S. v.] Zielie, 734 F.2d [1447] at 1457 [ (11th Cir.1984) ]. James affords protection to a defendant from implication in a conspiracy through another defendant’s or coconspirator’s statements. The government has confused the distinction between the use of an alleged , coconspirator’s statement and the use of other extrajudicial statements. 771 F.2d at 1487, 1488. The most recent expression by the Eleventh Circuit on this general subject is United States v. Pendegraph, 791 F.2d 1462 (11th Cir.1986), decided on June 23, 1986. It has particular relevance to the argument which the United States makes in the instant case that the various civil depositions can be successfully redacted to avoid prejudice, a procedure which is complicated and often unsatisfactory. In Pendegraph, the Eleventh Circuit discusses the introduction of a redacted version of a confession by one defendant over the objection of his co-defendant. The Eleventh Circuit explains: In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) the Court held that the admission of a nontestifying defendant’s statement in a joint trial, implicating a co-defendant, violated the Confrontation Clause. Because the declarant is unavailable for cross-examination, the “powerfully incriminating extrajudicial statements of a co-defendant who stand accused side by side with the defendant” cannot be tested. Id. at 135, 88 S.Ct. at 1628. However, if otherwise admissible, the statement may be admitted if all references to the co-defendant are deleted. United States v. Key, 725 F.2d 1123, 1126 (7th Cir.1984). The introduction of a redacted confession may still violate the Bruton rule if the statement compels a directly inculpating inference. United States v. Garrett, 727 F.2d 1003, 1013-14 (11th Cir.1984); see United States v. Satterfield, 743 F.2d 827, 849 (11th Cir.1984); English v. United States, 620 F.2d 150, 152-53 (7th Cir.1980); United States v. Hicks, 524, F.2d 1001, 1003 (5th Cir.1975). We believe that Mickels’ statement, even as redacted, clearly implicated Pendegraph. In light of the other evidence presented by the Government, including the testimony of Dill and the T.Y.A. employee, and the physical evidence of dye stains on Pendegraph’s check and jacket, the jury could very easily infer Pendegraph to be the “individual” referred to in Mickels’ confession, if only because there was no other possibility. See United States v. Burke, 700 F.2d 70, 85 (2d Cir.1983) (redacted statement clearly inculpatory where jury is aware that names have been deleted and in light of other evidence could infer they included co-defendant’s). However, the statement must also be vitally important to the Government’s case in order for its introduction to create a constitutional violation. 791 F.2d at 1465 (emphasis supplied). The fact that the United States in the instant case took an interim appeal in order to overturn the earlier suppression order indicates how “vitally important to the government’s case” the depositions of Handley, Steele, Riccio, Tucker and Godfrey may be. The only purpose for introducing the depositions will be to inculpate not only the particular deponent but others named or identified by the deponent. The Eleventh Circuit recently reiterated the controlling principle of Rule 14, F.R.Cr.P., in United States v. Taylor, 792 F.2d 1019, 1022-23 (11th Cir.1986), as follows: A motion for severance is addressed to the sound discretion of the district court and will be reversed only if that discretion is abused. Id. Fearing that this court would not be able to afford adequate protection against possible prejudice to these defendants in a joint trial of this complicated case, the court exercises its discretion so as to grant all defendants’ motions for a severance, conditioned on defendants’ clearly implied waivers of the Speedy Trial Act to the extent necessary, inasmuch as the defendants must realize that the court cannot try nine defendants both separately and at the same time, and for the purposes of minimizing prejudice for trial publicity there should be at least a short time lapse between trials. The parties have been previously requested to suggest to the court a line up of the cases for trial in the event of a severance, and several of the parties, through counsel, have responded. Because defendant Riccio is clearly the most volatile defendant, his case will be tried last. Because there is no consensus, except as to Riccio, as to a line-up, the other eight cases will be tried in the reverse order as the defendants are named in the indictment. An appropriate separate order will be entered. ORDER In compliance with the accompanying Memorandum Opinion, it is ORDERED, ADJUDGED and DECREED by the court as follows: 1. Defendants’ motions to suppress each civil deposition on the basis of allegedly newly discovered evidence are DENIED. The motions of defendants Mason and White are not “renewed motions” but original motions. They are nevertheless also DENIED. 2. Defendants’ motions to suppress each civil deposition based on the allegation that it was not voluntary are DENIED, but without prejudice to reconsideration at trial after hearing the evidence bearing on the issue. 3. Defendants’ motions for dismissal based on an alleged grant of immunity, express or de facto, are DENIED, but without prejudice to reconsideration at trial after hearing the evidence bearing on the issue. 4. Defendants’ motions for a dismissal of the indictment on the basis of alleged preindictment delay are DENIED. 5. Defendants’ motions for a dismissal of the indictment, or of certain of its counts, based on an allegation that the SCLC parade was not a “public activity” and/or was not “administered” by the City of Decatur are DENIED, but without prejudice to reconsideration at trial at the close of the government’s case. 6. Defendants’ motions for a continuance pending final adjudication of CV 80-HM-1449-S are DENIED. 7. Defendants’ motions for a severance are GRANTED, and the nine defendants, as thus severed, are hereby SET FOR TRIAL as follows: Godfrey, August 11, 1986, at 9:30 A.M. Tucker, August 25, 1986, at 9:30 A.M. White, September 29, 1986, at 9:30 A.M.' Mason, October 20, 1986, at 9:30 A.M. Creekmore, November 3, 1986, at 9:30 A.M. Kelso, November 10, 1986, at 9:30 A.M. Steele, November 17, 1986, at 9:30 A.M. Handley, November 24, 1986, at 9:30 A.M. Riccio, December 1, 1986, at 9:30 A.M. When defendants’ motions for continuance were filed all defendants waived the requirements of the Speedy Trial Act. The court necessarily DEEMS the motions for a severance to include a continuing waiver of the Speedy Trial Act as to those defendants who will therefore not be reached for trial within the precise limitations of the Act because of sequential trials. Therefore, in compliance with 18 U.S.C. § 3161(h)(8)(A) the court EXPRESSLY FINDS that the ends of justice will be served by sua sponte continuances granted to conform to the above schedule of trial settings and that the taking of this action outweighs the interest of the public and of the defendants in a speedy trial. In addition to any voir dire questions which the parties would ordinarily be expected to present to the court prior to jury selection, the parties are INSTRUCTED to submit to the court on or prior to August 8, 1986, briefs and any proposed voir dire questions addressing the jury selection problem inherent in this particular casé which involves a well publicized black-white confrontation, as a result of Batson v. Kentucky, — U.S. -, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). UNITED STATES OF AMERICA, v. TERRY JOE TUCKER. ON RENEWED MOTION TO SUPPRESS On July 14, 1986, this court entered a multifaceted Order in United States v. Roger David Handley, et al, with an accompanying Memorandum Opinion. However, because the individual defendants have been severed for trial, the following opinion deals only with' United States v. Terry Joe Tucker, although the court will use the same enumeration of subject matter used in its Opinion of July 14, 1986. (1) The Renewed Motion To Suppress. The renewed motions to suppress by all defendants were based on new evidence which came to light after remand by the Eleventh Circuit. Tucker now again seeks to have his two depositions taken by Mr. Dees in People’s Association of Decatur v. The Invisible Empire, CV 80-HM-1449-S, suppressed on the ground, now more clearly supported, that Mr. Dees’ “sole purpose” was to obtain an indictment of Tucker and his fellow Klansmen. On July 14,1986, the court denied all said motions. After July 14,1986, three new pieces of evidence bearing on this issue have come to the court’s attention. First, Tucker has now testified without contradiction that immediately after Mr. Dees deposed him on August 17, 1983, in CV 80-HM-1449-S Mr. Dees predicted that there would be federal indictments but said that he, Mr. Dees, might be able to forestall an indictment of Tucker if he would “cooperate”. Tucker’s testimony about Mr. Dees’ statement on August 17, 1983, implies at least two things. One is that Mr. Dees had some control over the Government’s intentions and potential actions. The other and possibly more important implication is that the The Peoples Association’s suit against Tucker could be dismissed as against Tucker if Tucker would only testify in a “would be” criminal case against his fellow Klansmen. The second new piece of evidence is that Mr. Dees, who contended in pleadings filed by him in CV 80-HM-1449-S that a criminal conviction in this case would be res judicata in CV 80-HM-1449-S, has not bothered to file a motion for summary judgment or any other pleading in CV 80-HM-1449-S to take advantage of the plea of guilty recently entered in this case by Tucker’s co-defendant, Derane O’Neil Godfrey. The gravamen of both the criminal and the civil case is a conspiracy to interfere with the SCLC parade. A lawyer seriously interested in obtaining the relief he seeks against a civil defendant would surely request a summary judgment based on the clear adjudication of liability in another case. Third, despite Mr. Dees’ close monitoring of this case he still has not obtained service in CV 80-HM-1449-S on defendant Ricky Lynn Creekmore, even though he was reminded on July 14, 1986. As recently as August 25, 1986, Mr. Stanton, who is Mr. Dees’ “Klan-Watch” investigator, testified for the Government in this case. Mr. Dees keeps up with this case better than he keeps up with his own case. These three additional pieces of evidence now convince the court beyond doubt that Mr. Dees’ “sole purpose” in filing CV 80-HM-1449-S was to press for criminal indictments of the Klan marchers, but the court remains equally convinced that the “law-of-the-case” precludes a suppression of Tucker’s civil depositions on this ground. United States v. Tucker was set for jury trial on August 25, 1986. On August 18, 1986, the United States suddenly, and for the first time, announced that it did not intend to offer into evidence in its case-in-chief against Tucker, Tucker’s depositions taken by Mr. Dees in CV 80-HM-1449-S on February 17, 1983, and August 17, 1983. This revelation came as a complete shock in light of the vigorous prior appeal taken by the United States from the Order of this court entered on July 27, 1984, and the accompanying Memorandum Opinion at 591 F.Supp. 1257. When it filed its notice of appeal in 1984, did the United States know that it had no intention of offering these depositions against Tucker? If so, the speedy trial implications are serious. In any event, the issue of the admissibility vel non of these two civil depositions against Tucker has suddenly and unexpectedly become moot, and there is no purpose to be served in further attempting to interpret Mr. Dees’ motives except as those motives may bear on other issues to be discussed. (2) Motion To Suppress Because of Involuntariness Of Deposition. This motion has become moot except as it bears on the admissibility of the fruits or by-products of Tucker’s civil depositions if they were, in fact, involuntary. This issue of voluntariness overlaps the next issue and will therefore be discussed under the next heading. (3) Motion For Dismissal Based On Immunity. After the United States belatedly announced its intention not to offer Tucker’s civil depositions, Tucker immediately requested a pre-trial hearing on the question of immunity. He argues that immunity necessarily results from the circumstances surrounding his civil depositions in CV 80-HM-1449-S. Tucker contends that the coercive nature of his civil depositions provides him full or “transactional” immunity. Alternatively, he argues that if he is not entitled to “transactional” immunity then he is entitled to “use” immunity, which would preclude the introduction of any of the fruits of his said depositions. Without deciding the issue of transactional immunity the court has earlier ruled that Tucker enjoys at least use immunity because of the court’s finding that the civil depositions were not voluntary. Without conceding that the civil depositions were involuntary, the United States requested a so-called Kastigar hearing for the purpose of giving it an opportunity to provide the court with an evidentiary basis for a determination that it nevertheless has a meritorious case against Tucker from sources independent of Tucker’s civil depositions. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The court conducted such a hearing. The United States, although now declining to offer Tucker’s civil depositions into evidence, argues that they were not involuntary, and, as a “fall back” position, argues that Tucker previously waived all of his Fifth Amendment rights as to the transaction made the subject of this criminal action by voluntarily testifying in 1980 about the same events in a state criminal case entitled State of Alabama v. Robinson. The court will explore these issues. A. TRANSACTIONAL IMMUNITY Tucker argues that what happened to him in CV 80-HM-1449-S was so egregious as to entitle him to an absolute equitable or de facto immunity from prosecution as to what he testified about under federal court compulsion. The earlier brief filed by his co-defendant Godfrey, which Tucker has adopted, argues that 18 U.S.C. §§ 6001, et seq., provides immunity here. Section 6002 says: Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to a court or grand jury of the United States ... and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in a criminal case____ 18 U.S.C § 6002 (1976) (emphasis supplied). The ex parte order entered on February 8, 1983, by the district court in CV 80-HM-1449-S before Tucker was deposed, on February 17, 1983, painted a very graphic picture of the dire consequences which would eventuate if Tucker did not identify himself and his alleged co-conspirators at the times and places where the alleged conspiracy supposedly culminated. In its order of February 8, 1983, the district court asked this question: Does the materiality of the information requested outweigh any possible reason a defendant might have to fail to disclose? The court then proceeded to answer its question: The materiality of this information to the plaintiffs outweighs any claim of privilege to which defendants may otherwise be entitled. (emphasis supplied). The court concluded with this flat statement: Therefore they [including Tucker ] are no longer entitled to claim any privilege. (emphasis supplied). As the Supreme Court noted in Lefkovitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977): ... when a State [or a United States district judge] compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment and cannot be used against the declarant in a subsequent criminal prosecution. 97 S.Ct. at 2135. Tucker points to the following language from In re Martin-Trigona, 732 F.2d 170 (2d Cir.1984): Section 6003(a) states that the appropriate district court shall issue an order compelling testimony upon request of a duly authorized United States attorney in accordance with the provisions of Section 6003(b) “[i]n the case of any individual who has been or may be called to testify or provide other information at any proceeding before or ancillary to a court of the United States.... ” (emphasis added). Presumably Congress understood the implications of the phrase “any proceeding before a court of the United States.” S