United States Court of Appeals FOR THE DISTRICT OF COLUMBIA against Mary Sue Hubbard, Henning Heldt, Jane Kember et al.

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UNITED STATES OF AMERICA v. HENNING HELDT and DUKE SNIDER,
APPELLANTS; UNITED STATES OF AMERICA v. MARY SUE HUBBARD,

APPELLANT; UNITED STATES OF AMERICA v. SHARON THOMAS,
APPELLANT; UNITED STATES OF AMERICA v. GREGORY WILLARDSON,
APPELLANT; UNITED STATES OF AMERICA v. RICHARD WEIGAND,

APPELLANT; UNITED STATES OF AMERICA v. CINDY RAYMOND,

APPELLANT; UNITED STATES OF AMERICA v. GERALD BENNETT WOLFE,

APPELLANT; UNITED STATES OF AMERICA v. MITCHELL HERMANN,

APPELLANT

No. 79-2442; No. 79-2447; No. 79-2448; No. 79-2449; No.
79-2450; No. 79-2456; No. 79-2459; No. 79-2462

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA

CIRCUIT

215 U.S. App. D.C. 206; 668 F.2d 1238; 1981 U.S. App. LEXIS

17192

Argued February 27, 1981

October 2, 1981; As Amended October 30, 1981
PRIOR HISTORY: [**1]

Appeal from the United States District Court for the District of Columbia
(D.C. Civil No. 78-401)

CORE TERMS: wolfe, seized, conspiracy, prosecutor, seizure, indictment,
immunity, disposition, grand jury, courthouse, incriminating, plain view, suite,
appearance, search warrant, searching, jail, seize, card, searched, suppression,
bias, obstruct justice, plea agreement, recusal, identification, extrajudicial,
disqualification, impartiality, night

COUNSEL: Philip Hirschkap, with whom Leonard S. Rubenstein and Geraldine R.
Gennet were on the brief, for appellants in No. 79-2442. Counsel presented
argument on behalf of all appellants on the issues of search and seizure.

Earl C. Dudley, Jr . for appellants in Nos. 79-2456 and 79-2462. Michael
Nussbaum and Ronald Precup also entered an appearance for appellants in Nos. 79-
2456 and 79-2462.

Leonard Boudin, with whom Eric Liberman and Dorian Bowman were on the brief,
for appellant in No. 79-2447. John Zwerling with whom Jonathan Shapiro and
Diana Lee Evans were on the brief for appellant in No. 79-2459.

Leonard J. Koenick was on the brief for appellant in No. 79-2448.

Roger E. Zuckerman and Roger C. Spaeder were on the brief for appellants in
No. 79-2449 and 79-2450.

Steven C. Tabackman and Melvyn H. Rappaport, Assistant United States
Attorneys, with whom Charles F. C. Ruff, United States Attorney, John A. Terry,

Michael W. Farrell, Raymond Banoun, Judith Hetherton and Timothy J. Reardon, III
[**2] , Assistant United States Attorneys, were on the brief for appellee.

Nadine Strassen was on the brief for Amicus Curiae, American Civil Liberties
Union, urging reversal with respect to the search and seizure issue in Nos. 79-
2442, 79-2447, 79-2448, 79-2449, 79-2450, 79-2452, 79-2456 and 79-2462.

Frederic R. Kellogg was on the statement in lieu of brief for Amicus Curiae,
National Moratorium on Prison Construction, et al., in Nos. 79-2447, 79-2448,
79-2449, 79-2450, 79-2452 and 79-2462.

OPINION: [*1241]

Before: MacKINNON, ROBB and WALD, Circuit Judges .
Opinion Per Curiam.

Opinion concurring in part and concurring in the result filed by Circuit
Judge WALD.

PER CURIAM: Appellants, nl members of the Church of Scientology
("Scientology"), were indicted for completed conspiracies and substantive
offenses involving their plan to identify, locate and obtain by various illegal
means certain documents in the possession of the United States which related to
Scientology, and their efforts thereafter to obstruct justice by thwarting the
government's investigation of such criminal activities, by harboring and
concealing a fugitive from arrest, and by causing the making of [**3] false
declarations under oath before a grand jury. n2

-Footnotes-

nl The appellants are Henning Heldt, Duke Snider, Mary Sue Hubbard, Sharon
Thomas, Gregory Willardson, Richard Weigand, Cindy Raymond, Gerald Bennett Wolfe
and Mitchell Hermann. Two other defendants, Jane Kember and Morris Budlong,
were in England, fighting extradition, when this case was tried. They were
subsequently extradited on the burglary counts, and found guilty after a jury
trial on nine counts of burglary.

n2 Appellants Hubbard, Heldt, Snider, Willardson, Weigand, Hermann, and
Raymond were harged with conspiracy to steal property of the United States (18
U.S.C. @ 641), to intercept oral communications (18 U.S.C. @ 2511(1)(a)), to
forge United States government credentials (18 U.S.C. @ 499) and to burglarize
offices of the Internal Revenue Service, the Department of Justice, and the
Office of the United States Attorney for the District of Columbia (22 D.C. Code
@ 1801 (b)), all in violation of 18 U.S.C. @ 371 (Count 1). They were also
charged with conspiracy to ostruct justice (18 U.S.C. @ 1503), to obstruct a
criminal investigation (18 U.S.C. @ 1510), to harbor and conceal a fugitive (18
U.S.C. @ 1071), and to make false declarations (18 U.S.C. @ 1623), all in
violation of 18 U.S.C. @ 371 (Count 23), and with one count of interception of
oral communications (Count 2), ten counts of burglary (Counts 3-8, 14-15, 19-
20), ten counts of theft of United States property (Counts 9-13, 16-18, 21-22),
and one count of obstruction of justice (Count 24). Appellant Wolfe was charged
with the obstruction conspiracy (Count 23), the obstruction of justice count
(Count 24), five of the burglary counts (Counts 3-5, 7-8) and five of the theft

counts (Counts 9-13). He was also charged with four counts of false
declarations (Counts 25-28) and was named as an unindicted co-conspirator in
Count 1. Appellant thomas was also charged in Count 1 (conspiracy), Counts 14-
15 (burglary), and Counts 16-18 (theft). Michael Meisner was named by the grand
jury as an unindicted co-conspirator in both conspiracy counts.

-End Footnotes-

[**4] [*1242]

Appellants' motion before the district court to suppress documentary evidence
seized in searches of Scientology offices in California n3 was denied after an
extensive hearing. Thereafter, on October 8, 1979, Judge Richey, over the
government's objection, granted appellants' motion to require the government to
comply with a Disposition Agreement to which appellants contended the government
had agreed. n4 Under this Agreement, each appellant was to be found guilty by
the court on one specified count on the basis of the "Stipulation of Evidence."
Upon consideration of this uncontested evidence and in accordance with the
Disposition Agreement, the court found appellants guilty as follows: Hubbard,
Heldt, Snider, Willardson, Weigand and Wolfe, of conspiracy to obstruct justice
and other offenses (Count 23); Hermann, of conspiracy to burglarize government
offices and steal documents (Count 1); and Thomas, of misdemeanor theft of
government property (Count 17) .

-Footnotes-

n3 A contemporaneous search of Scientology's offices in Washington, D.C. is
not discussed because none of the documents seized in that search were offered
in evidence in this case. See In re Search Warrant, No. 79-2138 (D.C. Cir.
1981). [**5]

n4 This Agreement, Joint Appendix [hereinafter "J.A."] at 356-58, is set
forth as the Appendix to this opinion.

-End Footnotes-

On December 4, 1979, after the presentence reports were received, appellants
moved for Judge Richey's recusal. Judge Richey declined to continue the
sentencing of appellants pending his ruling on the motion, and appellants were
sentenced on December 6 and 7. n5 The recusal motion was subsequently denied in
a memorandum and order filed on December 14, 1979 (J.A. at 387-93). These
appeals followed. n6

-Footnotes-

n5 All appellants except Thomas were sentenced pursuant to 18 U.S.C. @ 4205.
Appellant Hubbard was sentenced on Count 23 to a five-year term of imprisonment
and fined $ 10,000. Appellants Heldt, snider, Willardson, and Weigand were each
sentenced on Count 23 to four year terms of imprisonment and each fined $
10,000. Appellant Hermann was sentenced to a four year term of imprisonment on
Count 1 and fined $ 10,000. Appellants Raymond and Wolfe were each sentenced on
Count 23 to a five year term of imprisonment and each was fined $ 10,000.
Appellant Thomas was sentenced on Count 17 to a fine of $ 1,000 and a one year
term of imprisonment; six months of that sentence were suspended and she was
placed on probation for five years. [**6]

n6 Under the Disposition Agreement the remaining charges remain outstanding
pending disposition of the appeals.

---------------- -End Footnotes- ----------------

The district court had previously ruled that

defendants have agreed not to challenge the sufficiency of the evidence
before the trial court or on appeal. That is, the defendants will not challenge
the accuracy of the facts stipulated by the government, and the defendants will
not assert that the facts alleged do not amount to a violation of the crime
charged because of other considerations.

Memorandum Opinion filed October 8, 1979, at 11 (J.A. at 358). This permitted
appellants to raise the constitutionality of the search on appeal, which they
have done.

The facts giving rise to this case involve appellants' covert operations to
steal government documents pertaining to Scientology and a conspiracy to
obstruct justice in connection with those operations. This program was carried
out by the defendants and others through what were termed the "Guardian Offices"
of Scientology. To [*1243] conceal evidence of their activities, defendants
initiated the "Red Box" program by [**7] a general order dated 25 March 1977.
n7 As indicated by the "Red Box" memorandum (n.7), that program was primarily
designed to secrete and destroy documentary proof that Mary Sue Hubbard and her
husband L. Ron Hubbard n8 engaged in any "illegal" or "incriminating
activities." The existence of the Red Box program also illustrates the
difficulty the government faced in obtaining documentary and other proof ofthe
knowledge and intent of the defendants in carrying out their various criminal
programs against various agencies of the government.

----------------- -Footnotes- -----------------

n7 The "Red Box" program, as set forth in Government's Exhibit 219, stated:

7984

25 Mar, 1977

All concerned BI staff

All Sees DGI US OFFICE

VIA: DDGI US

RE: RED BOX

Dear All,

This is to introduce into BISU [Bureau of Information, United States] the
complete red box system. Most of you have heard of this earlier — I will now
explain it in detail. First of all, all data that is red box data, has to be
pulled from your areas. The complete definition of Red Box material is
attached.

Secondly, you must ensure that none of your juniors, (for those of you who
have them) have red box data in their areas.

All the red box material from your areas must be centrally located, together
and in a moveable container (ideally a briefcase), locked, and marked.

When this is done in each area, we will divide up the amounts and deputize

persons in the area to be responsible for its removal from the premises in the

case of a raid. This procedure will be drilled. This procedure will stay in at

the new location.

Please have all this data sorted and located in proper container by Monday
night Mar 28. I will then divide up removal duties, and we will drill it
Tuesday night just before the all hands.

Love Judy
(The exhibit also contains other handwritten comments.)

RED BOX DATA INFORMATION SHEET

1. What is Red Box data?

a) Proof that a Scnist [Scientologist] is involved in criminal activities.

b) Anything illegal that implicates MSH, [Mary Sue Hubbard], LRH [L. Ron
Hubbard].

c) Large amounts of non FOI docs [covertly obtained government documents].

d) Operations against any government group or persons.

e) All operations that contain illegal activities.

f) Evidence of incriminating activities.

g) Names and details of confidential financial accts.

2. Where is Red Box data kept?

a) Out of date material or finished cycles that can be shredded should be.

b) Large amounts of red box data that is not needed for day to day function
but cannot be destroyed is located with all our NON FOI docs — and can be
called for via CIC.

c) Small amounts of data that must be kept on hand due to security and
frequent use -- is to be kept in a briefcase locked up — and is to be marked,
(in BI office area)

3. How is Red Box data, kept on the BI premises, cared for?

a) This data will be picked up and carried out of the building by 'owner'
immediately upon notification of a raid, search warrant etc.

b) Persons carrying this data (as few as possible) will leave the premises
and only return when they have called in and received an "all clear". (Details
of who goes where with what data will be sorted out later -- and drilled)

This sheet contained the handwritten comment: "NOT FOR COPYING!! This sheet is
to be returned to Sec of RBI US Dyn Mar 28 1977."

"NON-FOI docs [documents]" refers to government documents that were "obtained
by covert action," J.A. at 186, i.e., not by suits under the Freedom of
Information (FOI) Act. [**8]

n8 L.Ron Hubbard, who was not indicted, and his wife, the defendant Mary Sue
Hubbard, are respectively the highest and second highest officials in the
Scientology organization.

-End Footnotes-

The principal contentions raised by appellants are: (1) that the government
breached its plea agreement with Wolfe when it prosecuted him for conspiracy;
(2) that the search of the offices of Scientology in California violated the
fourth amendment; (3) that the trial judge should have recused himself on
appellants' motion; (4) that the trial court erred in denying appellants' motion
to disqualify all attorneys in the office of the United States Attorney from
prosecuting the case; (5) that the government violated its agreement not to
allocute at Hubbard's sentencings; and (6) that Hubbard's first and sixth
amendment rights were violated by the refusal of the [*1244] government and
the court to grant "use" immunity to co-defendant Kember so that she could offer
allegedly "exculpatory" testimony on Hubbard's behalf.

For the reasons set forth in detail in Parts I-VI infra, we reject each of
these contentions and affirm [**g] the district court judgment. Because
resolution of the issue involving Wolfe requires recitation of many of the facts
that underlie this case, we address it first. Other facts will be set out as
they become relevant to the other issues, which will be addressed in Parts II-
VI.
I. WOLFE'S CLAIM THAT HIS PROSECUTION WAS BARRED

The appellant Wolfe contends that his rosecution for conspiracy, 18 U.S.C. @
371 (1976) is barred by his agreement to plead and his plea of guily to misuse
of a government seal, 18 U.S.C. @ 1017 (1976). We disagree.

Resolution of the issue raised by Wolfe requires a statement of the facts and
circumstances leadng up to and surrounding his agreement to plead guilty,
together with a summary of the events that followed. The narrative begins on
the night of May 21, 1976 when the night librarian for the District of Columbia
Bar Association library in the United States Courthouse saw two men come to the
library and thereafter use the photocopy machine in the United States Attorney's
Office. The same two men returned on the night of May 28. The librarian's
suspicions being aroused, he alerted the United States Attorney's office which
in turn informed [**10] the Federal Bureau of Investigation. A check of the
sign-in logs of the courthouse and the library by FBI agents revealed that on
May 21 the men had used the names of "J. Wolfe" and "J. Foster", and on May 28
the names of "Hoake" and "J. Foster". The FBI agents told the librarian to call
the FBI if the men appeared again.

On June 11, 1976 the men did return to the library and the FBI was called.
Two FBI agents confronted the men in the library and asked them for
identification. Each produced what appeared to be an official Internal Revenue
Service identification card bearing his photograph. One man showed the agents a
card in the name of Thomas Blake and the other man exhibited a card in the name
of John M. Foster. On checking with the IRS the agents determined that there
was an IRS employee named Thomas Blake. Accordingly "Bake's" card was returned

to him after the number on the card was noted. When "Foster" said he was no
longer an IRS employee his identification card was confiscated. Both men were
then permitted to leave the courthouse.

Three days later the FBI discovered that the man who had produced the Blake
identification card was not the Thomas Blake employed [**11] at IRS.
Moreover, the number which had appeared on the Blake card was assigned to
another IRS employee.

On June 30, 1976 one of the FBI agents encountered "Blake" by chance in the
hallway of the IRS National Office Building. The agent again asked him for
identification. When he produced an IRS identification card in his true name,
Gerald Bennett Wolfe, he was placed under arrest. The "Thomas Blake"
identification card was not recovered.By complaint filed the same day Wolfe was
charged with having used and possessed on June 11, 1976 a falsely made, forged
and altered official pass and permit in violation of 18 U.S.C. @ 499 (1976). He
waived the forty-five day limit for the filing of an indictment or information.

Continuing investigation by the FBI disclosed the following information:

1. The "Foster" identification card had probably been made on the equipment
located in the identification room of the IRS which was supposedly subject to
tight security;

2. For several weeks before the end of June 1976 "Foster" had used the card
approximately three times a week to enter the IRS building;

3. According to the sign-in log "Thomas Blake" had entered the IRS building
on [**12] a Saturday in late April or early May 1976. No description of this
man was obtained; [*1245]

4. The man who used the "Foster" card was Michael J. Meisner. Meisner had
never been an employee of the IRS but since 1973 had been a member and employee
of Scientology in Washington, D.C. He disappeared from Washington shortly after
the courthouse encounter. A warrant for his arrest was issued August 5, 1976,
but he was not apprehended. As we shall see, he remained a fugitive until June
19, 1977, when he voluntarily surrendered.

In addition to the information developed by the FBI the United States
Attorney's Office at this time became aware of documents which had been produced
by Scientology in connection with two civil actions in Caliornia. These
documents suggested a Scientology plan to obtain information regarding pending
lawsuits by infiltrating various IRS offices as well as the United States
Attorney's Office in Los Angeles.Several such lawsuits filed by Scientology were
pending in the District of Columbia and were being defended by the United States
Attorney's Office. Counsel for Scientology in the California actions
characterized the infiltration plan as a "misguided [**13] fantasy of
someone".

On July 16, 1976 Wolfe and his attorney met with an assistant United States
Attorney in the District of Columbia and Wolfe attempted to explain his
nocturnal visits to the Bar Association library. He said that in a Georgetown
bar he had chanced to meet a stranger who said his name was John Foster and that
when Foster professed to be a law student, Wolfe asked him to teach Wolfe how to
do legal research. Wolfe and Foster had gone to the Bar Association library for

this purpose, and used the United States Attorney's xerox equipment only to copy
material found in law books. As for the false identification cards Wolfe said
he and Foster had got drunk one night and as part of a "drunken lark" had
wandered into the IRS identification room and made false identification cards
for themselves. He knew nothing more about Foster, did not know where he lived
or where he was, his only association with Foster having been meetings in bars
and the legal research proect. As might have been expected the Assistant United
States Attorney did not believe this story and he told Wolfe so.

After the meeting in the United States Attorney's Office there were plea
negotiations between [**14] that office and Wolfe and his attorney. The
government offered to permit Wolfe to plead guilty to a misdemeanor if he in
turn would cooperate with the United States Attorney and the grand jury by
giving truthful testimony about what he and Foster were doing in the courthouse
and the United States Attorney's Office, and by revealing the identity of the
person or persons who had told him to make the entry. The United States
Attorney was of course interested in apprehending the second man who had been
with Wolfe. Until approximately April 1977 it appared that Wolfe intended to
accept the offer of a misdemeanor plea. However, at that time Wolfe suddenly
informed the government, through his attorney, that he would not accept the plea
offer and that he was retaining new counsel. He did retain new counsel and
agreed to enter a plea of guilty to misuse of a government seal, 18 U.S.C. @
1017 (1976), a felony.

Wolfe entered his plea of guilty before District Judge Flannery on May 13,
1977. The terms of the plea agreement were disclosed on the record by the
Assistant United States Attorney, Mr. Stark, and confirmed by Wolfe's newly
retained attorney as follows:

MR. STARK: Your Honor, [**15] this case is before Your Honor for a
disposition pursuant to the information filed yesterday afternoon with the court
charging a felony one count of fraudulent use of a government seal. The
defendant in this case, Gerald Bennett Wolf [sic], has agreed to enter a plea of
guilty to this charge; in exchange therefor, the government has agreed not to
charge Mr. Wolf [sic] with any other possible violations arising out of three
separate entries into his courthouse with another man in May and June of last
year using a false and fraudulently obtained Internal Revenue I.D. card. [*1246]

In addition, the government will not oppose Mr. Wolf's [sic] remaining on
personal recognizance pending sentence, and the government expressly reserves
its right to allocute at the time of sentence. I believe Mr. Schmidt, that is
an accurate statement of the plea agreement.

MR. SCHMIDT: I agree that that is an accurate statement of our agreement....
(J.A. 73, 74) Following these statements the court addressed Wolfe as follows:
THE COURT: Now, it has been indicated that in return for your plea to this
Information, the government will not charge you with any other possible offenses
arising [**16] out of the three incidents occurring in May or June of 1976
growing out of the use of this fraudulent identification. The government will
not oppose your remaining on bond pending the sentence. The government,
however, reserves the right to speak against you or to allocute at the time of
your sentence.

Now, are those the only promises that have been made to you in this case?
THE DEFENDANT: Yes, sir.

THE COURT: Has anyone threatened you to cause you to plead guilty in this
case?

THE DEFENDANT: No, sir.
(J.A. 83)

Wolfe was sentenced on June 10, 1977. At the sentencing the Assistant United
States Attorney summarized what was known to the government about Wolfe's
activities and said that in the opinion of the government Wolfe had not told the
truth to the United States Attorney and the probation office. He added:

[T]he Government is concerned about this case primarily because of what it
does not know, rather than what it does know.

We are puzzled why this young man who has never been in conflict with the law
before has chosen to plead to a five-year five thousand dollar felony and expose
himself in that respect to the adverse collateral consequences that flow [**17]
from a felony conviction rather than plead to a misdemeanor which we did offer
him. . . .
(J.A. 92) On behalf of Wolfe his attorney told the court:

What we have here is a situation in which he and another individual, very
poorly advised, went into Mr. Wolfe's place of employment sufficiently filled by
alcohol, and decided to play around with the identification machines.

The Government has no knowledge that any classified information was revealed
during these times that he was in using the Xerox machine, as he so states, or
that he had gone anywhere beyond the Xerox machines. They have no evidence that
their files had been rifled in any manner.

(J.A. 89, 100) He asked the court to sentence Wolfe solely on the basis of "what
information is provable and here before this court." (J.A. 100)

The court placed Wolfe on probation for two years with the condition that he
contribute 100 hours of community service work, without compensation, during the
period of his probation.

Immediately after he was sentenced Wolfe was subpoenaed to appear before the
grand jury on the same day. Before the grand jury Wolfe was questioned at
length about his entries into the courthouse and the story [**18] he had
given to explain what he was doing. He repeated the Foster-legal research
explanation.We shall discuss this grand jury appearance later in this opinion.

On June 20, 1977, ten days after Wolfe was sentenced, Michael Meisner, who
was in California, called Assistant United States Attorney Stark by telephone,
saying he wished voluntarily to return to the District of Columbia and cooperate
with the government. He arrived in Washington that evening. In a series of
interviews over the next two weeks he recounted in detail the criminal actions
he and other members of Scientology had committed. His statement described a
criminal conspiracy by [*1247] Scientologists to obstruct justice, suborn
perjury, steal government property, and harbor a fugitive. What follows is a
brief summary of Meisner's statement.

Meisner had been an active member of Scientology since 1970. Beginning in
January 1974 he was the Assistant Guardian for Information in the District of

Columbia.The Guardian's Office is charged with the protection of Scientology.
The Guardians handle intelligence matters including covert operations to acquire
government documents critical of Scientology, internal security [**19] within
Scientology, and covert operations to discredit and remove from positions of
power all persons whom Scientology considers to be its enemies. Mary Sue
Hubbard and Henning Heldt are the ranking officers of the Guardians in the
United States, with offices in Hollywood, California.

In early 1974 Guardian Order 1361 (GO 1361) was issued by Guardian World-Wide
Jane Kember whose office was in England. This order called for an all-out
attack on the Internal Revenue Service which was to include the filing of law
suits, a public relations assault, and infiltration of IRS by agents of
Scientology. Pursuant to that order, in the summer of 1974, it was decided to
plant an agent of Scientology within the National Office of the IRS in
Washington, D.C. Cindy Raymond, a member of the staff of the Deputy Guardian for
Information, together with Meisner and Mitchell Herman, who was then responsible
for covert operations activities, were assigned the task of recruiting such an
individual. Gerald Bennett Wolfe was recruited. Wolfe came to Washington and
by November 1974 had obtained a position as clerk-typist at the IRS. To
demonstrate to Wolfe that IRS files could be obtained Meisner and [**20] Herman
entered the IRS building, went to an office in the Exempt Organization Branch
and took a file relating to Scientology out of a filing cabinet. The file was
taken out of the IRS building, xeroxed and returned the next morning.

On November 1, 1974 Mitchell Herman and a Scientology technician from Los
Angeles surreptitiously entered the IRS building and placed a listening device
in a conference room which they knew was about to be used for a high-level IRS
meeting on Scientology. They taperecorded the meeting and later Meisner saw a
transcript of the tape.

From December 1974 to March 1975 Herman directed several burglaries of the
office of an attorney in the Refund Litigation Division of the Chief Counsel of
IRS. In March 1975 Meisner took over from Herman the supervision of all covert
Scientology agents within government offices. He supervised Wolfe's activities
at IRS and on numerous occasions accompanied Wolfe into the IRS building after
working hours for the purpose of breaking into offices and copying documents
relating to Scientology. The documents would be xeroxed and the copies sent to
the Los Angeles Guardian's Office. In his statement Meisner specified a number
[**21] of such burglaries.

In July 1975, acting on instructions from Meisner, Wolfe entered the Tax
Division of the Department of Justice in the Star Building in the District of
Columbia. Wolfe entered the Tax Division's Offices some four times and removed
documents which were copied and sent to Los Angeles.

In December 1975 a program was developed to obtain INTERPOL documents
concerning Scientology, contained in files held by government agencies. To this
end Meisner recruited Sharon Thomas, a Scientologist, and directed her to apply
for a secretarial position within the Justice Department. She did so, and
obtained a position as the personal secretary of the Department of Justice
attorney who was handling the Scientology Freedom of Inormation suit against
INTERPOL. Thomas took documents from the attorney's files as well as INTERPOL
files and delivered them to Meisner. It developed however that most of the
sought-after INTERPOL documents were not at the Department of Justice but
probably were in the Office of Assistant United States Attorney Dodell in the

United States Courthouse. Accordingly Meisner and Wolfe directed their
attention to Dodell's office. [*1248]

Some time [**22] in March 1975 Meisner and Wolfe entered the IRS building
after hours, using wolfe's IRS credentials. Once inside they broke into the
room in which the equipment used to make identification cards was located and
made themselves false identification cards using fictitious names. These
credentials were later used to enter the United States Courthouse.

During the first week of May 1976 Meisner and Wolfe entered the courthouse
during working hours and went to the Bar Association library on the third floor.
They waited until work hours ended and then began to wander around to lcate
Dodell's office. They found the office in a small hallway leading from the back
of the library.They attempted to open Dodell's door with a tool they had used in
the past but were unsuccessful. Two or three days later Wolfe returned to the
courthouse during his lunch hour and went to the Dodell office. Both Dodell and
his secretary were out but Wolfe noticed a set of keys on the secretary's desk.
He took the keys, called Meisner, and they went to a locksmith and had four of
the keys duplicated. They then returned to the courthouse and dropped the
secretary's keys in the corridor outside Dodell's office, [**23] so the
secretary would assume they had fallen out of her purse.

On the night of May 21, 1976 Meisner and Wolfe returned to the Bar
Association library, signing in as J. Wolfe and J. M. Foster. Proceeding to
Dedell's office through the back of the library they used one of their duplicate
keys to open the door. They reviewed three drawers full of files maintained in
the course of FOIA litigation instituted by Scientology. They located the
INTERPOL file as well as a general file on Scientology violations and some
Scientology files containing documents obtained from the District of Columbia
Police Department. Placing some ten or twelve files in their briefcases they
took them to the photocopy machines in the United States Attorney's Office where
for two hours they xeroxed the documents. These activities produced a 5-inch
stack of papers. The men then returned the files to Dodell's office and left
the courthouse. After reviewing the documents Meisner sent them along to the
Scientology office in California.

On the night of May 28, 1976 Meisner and Wolfe returned to the courthouse,
signing themselves in as Hoake and J. M. Foster. They went to Dodell's office,
filled their briefcases [**24] with Scientology files and xeroxed them on the
United States Attorney's machines. Working together on two machines they
produced a stack of documents slightly larger than the one of May 21.

After reviewing the documents obtained on May 28 Meisner determined that one
more visit to Dodell's office would be necessary to copy the remaining
Scientology douments. He was also instructed by Mitchel Herman that he was to
obtain any personal information about Dodell which he could find, the purpose
being to remove Dodell from a government position because he was a threat to
Scientology. To carry out this operation Meisner and Wolfe returned to the
courthouse on the night of June 11, 1976. They signed in as Thomas Blake and
John M. Foster, using the false credentials they had made during their IRS break
in. While they were waiting in the library, before proceeding to Dodell's
office, they were confronted by two FBI agents who questioned them and
confiscated the Blake credentials.

Frightened by the appearance of the FBI Meisner and Wolfe on leaving the
courthouse took a circuitous route on foot in order to evade any pursuer, and
then took a taxi to a tavern in Georgetown. There Meisner [**25] telephoned
to Mitchell Herman at the Guardian's Office in Los Angeles and informed him in
Cryptic language that a major development had occurred. Herman told him to call
back to a telephone located outside the Scientology offices. Meisner did so and
then told Herman what had occurred. Later that night Herman instructed him to
come to Los Angeles the next morning. Without going home Meisner then chcked
into a motel where he spent the night before leaving for Los Angeles on an 8:30
A.M. flight. [*1249]

On his arrival in Los Angeles Meisner gave his superiors a full written
report of the courthouse incident and met with them to determine how to deal
with the situation. Two proposals were considered. One was to send Wolfe to
the District of Columbia with a prepared cover-up story as to why he was in the
courthouse, in order to see what the authorities would do. Meisner would be
sent to Washington after Wolfe's case was finished, and would also be instructed
on what to say. Neither would admit any association with Scientology. The
second plan was to send both Meisner and Wolfe to Washington at the same time
and let them take whatever punishment was meted out, again always [**26]
denying any association with Scientology. It was decided to summon Wolfe to Los
Angeles immediately and Meisner was told to stay at a motel in Hollywood.

The next day, June 13, after further discussion, it was decided to send Wolfe
back to Washington with a cover-up story, and later to send Meisner. Once the
proceedings against Wolfe were completed Meisner would be sent to the District
of Clumbia with a parallel cover-up story. It was decided that Meisner would
change his physical appearance and go into hiding.

On Monday, June 14, Meisner shaved his mustache and a Scientology employee
visited him at the motel and cut and dyed his hair. He was also given money to
buy contact lenses to replace his eyeglasses. He purchased the lenses.

On the afternoon of June 14 Wolfe, accompanied by two Scientology officers,
arrived at Meisner's motel room and the cover stories were developed. Wolfe was
drilled on the specifics of the story to make sure he could stick by it. The
story was the one he afterwards told the United States Attorney and the grand
jury about his meeting with Foster and his legal research project.

Meisner was to tell a story that corroborated Wolfe's.

In furtherance [**27] of the scheme agreed upon in Los Angeles Wolfe was
returned to the District of Columbia where he was arrested June 30, 1976.Meisner
remained in California. On June 14, 197 6 Meisner was named National Secretary
of Scientology, with an office in the Guardian's Office in Los Angeles. When it
was learned that a warrant had been issued for his arrest in the District of
Columbia he was removed from any official position with Scientology, but he
continued to function in an unofficial capaciy. He remained in hiding. This
situation continued until some time in April 1977 when Meisner indicated he was
tired of waiting for the case to be resolved and wished to be sent back to the
District of Columbia as soon as possible. When he threatened to take the
situation in his own hands he was placed under 24-hour guard, and on one
occasion was removed from one building to another, handcuffed and gagged.On
another occasion he was apprehended by Scientologists in Las Vegas and returned
in their custody to Los Angeles where he was again placed under house arrest.

Finally, on June 20, 1977 he telephoned to the United States Attorney's Office
in the District of Columbia that he wished to surrender. [**28]

On July 8, 1977 the offices of Scientology in California were searched by FBI
agents, pursuant to a warrant issued on the basis of Meisner's statements to the
government. Numerous documents were seized. This search and seizure are
discussed elsewhere in this opinion. The seized documents confirmed the
statements to the government previously made by Meisner.

On August 15, 1978 Wolfe and the other defendants were indicted by a grand
jury in the United States District Court for the District of Columbia. The
indictment was in twenty-eight counts. Wolfe stipulated that the District Court
might find him guilty on Count Twenty-three upon the basis of a "Stipulation of
Evidence", and the court did find him guilty on that count. The Stipulation
also confirmed Meisner's statements. So far as Wolfe is concerned, therefore,
we are concerned only with Count Twenty-three.

Count Twenty-three alleges a conspiracy to obstruct justice in violation of
18 U.S.C. @ 1503 (1976), to obstruct a criminal   [*1250]   investigation in
violation of 18 U.S.C. @ 1510 (1976), to harbor and conceal a fugitive in
violation of 18 U.S.C. @ 1071 (1976); and to make false declarations in
violation [**29]   of Title 18 U.S.C. @ 1623 (1976). The conspiracy is alleged
to have begun on or about June 11, 1976 the day Wolfe and Meisner were
confronted by FBI agents in the Bar Association library. As preliminary and
explanatory matter Count Twenty-three alleges (paragraph 1) that between May 21
and June 11, 1976 Wolfe and Meisner on three occasions, suing orged IRS
credentials, entered the courthouse for the purpose of burglarizing and stealing
documents from the office of an Assistant United States Attorney; and that on
June 11, during the third of these entries, they were confronted and questioned
by FBI agents (paragraph 2). It is further alleged that beginning on June 11
the United States Attorney, the FBI and the grand jury were investigating the
entries into the office o the United States Attorney by Wolfe and Meisner
(paragraph 3), that on June 30, 1976 Wolfe was arrested and on August 5, 1976 a
warrant was issued for Meisner's arrest (pararaphs 4, 5). Continuing, the count
alleges that on May 13, 1977 in Criminal Case 77-283, Wolfe pled guilty to the
wrongful use of a government seal in violation of 18 U.S.C. @ 1017 (1976), and
that on June 10, 1977 he was sentenced and that [**30]   same day testified
before the grand jury (paragraphs 6, 7).

The object and means of the conspiracy are alleged as follows:

9. It was an object of said conspiracy to corruptly influence, obstruct and
impede, and corruptly endeavor to influence, obstruct and impede, the due
administration of justice in connection with the investigation referred to in
paragraph three (3) above, and in connection with the case of United States v.
Gerald Bennett Wolfe, Criminal Case No. 77-283, referred to in paragraphs six
and seven (6 and 7) above, for the purpose of concealing and causing to be
concealed the identities of the persons who were responsible for, participated
in, and had knowledge of (a) the activities which were the subject of the above-
mentioned investigation and judicial proceedings, and (b) other illegal and
improper activities.

10. It was further an object of said conspiracy, for the purposes stated in
paragraph nine (9) above, willfully to endeavor by means of misrepresentation,
intimidation, and force and threats thereof to obstruct, delay, and prevent the