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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
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,
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
215 U.S. App. D.C. 206; 668 F.2d 1238; 1981 U.S. App. LEXIS
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)
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,
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.
MacKINNON, ROBB and WALD, Circuit Judges .
Opinion Per Curiam.
Opinion concurring in part and concurring in the
result filed by Circuit
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
nl The appellants are Henning Heldt, Duke Snider, Mary Sue Hubbard,
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.
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) .
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.
n4 This Agreement, Joint Appendix [hereinafter
"J.A."] at 356-58, is set
forth as the Appendix to this opinion.
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
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.
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
The facts giving rise to this case involve appellants' covert operations
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:
25 Mar, 1977
All concerned BI staff
All Sees DGI US OFFICE
VIA: DDGI US
RE: RED BOX
This is to introduce into BISU [Bureau of Information, United States]
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
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.
(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.
Anything illegal that implicates MSH, [Mary Sue
Hubbard], LRH [L. Ron
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.
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?
This data will be picked up and carried out of the
building by 'owner'
immediately upon notification of a raid, search warrant etc.
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)
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
The principal contentions raised by appellants are: (1) that the
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
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-
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:
"Foster" identification card had probably been made on the equipment
located in the identification room of the IRS which was supposedly subject to
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.
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
On July 16, 1976 Wolfe and his attorney met with an assistant United
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
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
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
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
THE DEFENDANT: No, sir.
Wolfe was sentenced on June 10,
1977. At the sentencing the Assistant
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
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
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
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
States Courthouse. Accordingly Meisner
and Wolfe directed their
attention to Dodell's office. [*1248]
[**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
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
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.
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
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.
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
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.
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
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
communication of information relating to a violation
of a criminal statute of
the United States by a person to a criminal [**31] investigator.
It was further an object of said
conspiracy, for the purposes stated in
paragraph nine (9) above, that the defendants and unindicted co-conspirators,
having received notice and acquired knwowledge of the fact that an arrest
warrant for Michael J. Meisner had been issued under provisions of a law of the
United States, would and did harbor and conceal him, so as to prevent his
discovery and arrest.
It was further an object of said
conspiracy, for the purposes stated in
paragraph nine (9) above, the defendants and unindicted co-conspirators,
knowingly made and caused to be made false material declarations under oath in
proceedings before a Grand Jury of the United States.
Among the means by which the
defendants and the unindicted co-
conspirators would and did carry out the aforesaid objects of the conspiracy
were the following:
defendants and the unindicted co-conspirators would and did plan,
solicit, assist and facilitate the giving of false, deceptive, evasive and
misleading statements and testimony;
defendants and the unindicted co-conspirators would and did give
false, misleading, evasive and deceptive statements and testimony; [**32]
defendants and the unindicted co-conspirators, in order to limit the
investigation by exposing only GERALD BENNETT WOLFE and Michael J. Meisner to
criminal prosecution and in order to prevent the uncovering of [*1251] the
true facts regarding the scope of their illegal activities, would and did plan,
solicit, order, assist, encourage and facilitate the entry of a plea of guilty
defendants and the unindicted co-conspirators, in an effort to harbor
and conceal unindicted co-conspirator Michael J. Meisner, would and did plan,
direct, order, and assist in his initial concealment, and later in his forcible
removal to secure hiding places where he was kept under guard. Indictment, pp.
23, 24, 25 (J.A. 368-70).
Count Twenty-three alleges that
forty-five over acts were committed by the
defendants in furtherance of the conspiracy.Only No. Forty-two charges an over
act by Wolfe
(42) On or about June 10, 1977,
within the District of Columbia, GERALD
BENNETT WOLFE, testified falsely before a Grand Jury of the United States
District Court investigating the illegal entries into the United States
Courthouse. WOLFE then reported to the Guardian's Office [**33] — DC where
he was fully debriefed regarding his testimony before the grand jury. A copy of
that debriefing was sent to the defendants and unindicted co-conspirators in Los
Angeles and elsewhere.
Indictment, pp. 32, 33 (J.A. 377-78).
Twenty-three is read in the light of Meisner's 1977 statement to
the government it is apparent that the conspiracy alleged is the one described
in that statement. Wolfe says in prosecution for this conspiracy is barred by
government's agreement, in exchange for his plea of guilty to fraudulent use
of a government seal, "not to charge [him] with any other possible violations
arising out of three separate entries into this courthouse with another man in
May and June of last year  using a false and fraudulently obtained
Internal Revenue I.D. card." (J.A. 73) We think however that a reasonable
analysis of the plea bargain requires the conclusion that it has no such effect.
the plea agreement was made and Wolfe entered his plea the government
knew only that using a false I.D. card he had entered the United States
Attorney's Office and used the United States Attorney's xerox machine. The
government was ignorant of Wolfe's [**34] purpose and knew nothing about the
scope of his criminal activities. As Wolfe's attorney told the court at the
sentencing, the case was only one in which Wolfe and another man under the
influence of alcohol "decided to play around with the identification machines"
(J.A. 89) and there was no evidence that the prosecutor's files "had been rifled
in any manner." (J.A. 100) We assume that counsel spoke in good faith, but Wolfe
knew that his statement misrepresented the facts. The prosecutor agreed with
counsel's statement, and said that the government was "concerned about this case
primarily because of what it [did] not know".(J.A. 92) The government did not
know that on the day after he entered his plea Wolfe would tell a false story to
the grand jury. Nor did the government know anything about the broad conspiracy
in which Wolfe played a part, to obstruct justice and harbor and counceal the
fugitive Meisner as alleged in Count Twenty-three. Yet Wolfe contends that the
conspiracy is an offense within the contemplation of the plea agreement as an
offense "arising out of" his courthouse entries. His contention offends common
sense. It is too plain for argument that the conspiracy [**35] was not an
offense contemplated by the plea agreement because the existence of the
conspiracy, and all its details, although known to Wolfe, were deliberately
concealed by Wolfe when his plea was accepted. If Wolfe's theory is sound then
he could not be prosecuted for his perjury before the grand jury; indeed he
could not have been prosecuted for murder had the conspirators done away with
Meisner in order to silence him.An interpretation of the agreement that would
lead to such results in unreasonable.
Wolfe relies heavily on United States v.
Phillips Petroleum Co ., 435 F.
Supp. 622 (N.D. Okla. 1977), but this case does not help him. Phillips pled
guilty to making an illegal campaign contribution, a misdemeanor, in violation
of 18 U.S.C. @ 610 (1976). [*1252] Thereafter in Count I of an indictment
the company was charged with conspiracy to defraud the government in violation
of 18 U.S.C. @ 371 (1976).There was no formal plea agreement but after taking
extensive testimony the District Court found as a fact that it was understood
that in return for the plea of guilty of the misdemeanor in violation of 18
U.S.C. @ 610 (1976) there would be no further prosecution for any [**36]
violation of 18 U.S.C, although there might be additional charges under the Tax
Code, 26 U.S.C. It is true that in a pleading Phillips alleged that "the
Special Prosecutor agreed that there would be no further prosecutions for any
Title 18 violations arising from the contributions . . . ." [Emphasis added] Id .
at 624.However, the ground of the court's decision was not that the violation
alleged in Count I arose out of the contributions; rather the court held that
any charge of a Title 18 violation was barred. Furthermore, contrary to Wolfe's
statement that his "situation is directly analogous to Phillips Petroleum" (Br.
p. 39) the court emphasized that the conduct alleged in Count I was disclosed to
the Special Prosecutor before the plea was entered. The court held, id . at
636, 637, "becase the conduct alleged in Count I was disclosed to the Special
Prosecutor before the plea was entered, the prosecution for the conduct alleged
Count I of this indictment and charged under Title 18 of the United States
Code, is barred by the terms of the plea agreement."
Wolfe says the District Court should have
conducted an evidentiary hearing to
determine the terms of the plea agreement [**37] and whether it barred
Wolfe's prosecution. In support of this contention he cites cases in which the
terms of a plea agreement were not reduced to a formal statement, but depended
upon conversations and understandings between defense and prosecution.See United
States v. Phillips Petroleum Co., supra; United States v. Minnesota Mining &
Manufacturing Co ., 551 F.2d 1106 (8th Cir. 1977); United States v. Carter, 454
F.2d 426 (4th Cir. 1972), cert, denied, 417 U.S. 933 (1974). Such cases have no
application here where the plea agreement was formally stated in open court and
confirmed by the defendant's attorney and the court. The only question is
whether the plain terms of the agreement barred Wolfe's prosecution, and we hold
they did not.Although Wolfe argues that he was entitled to testify as to his
"subjective belief" concerning the scope of the agreement, this argument must be
rejected. The scope of the bargain did not depend upon Wolfe's belief. United
States v. Thomas, 593 F.2d 615 (th Cir. 1979), cert, denied, 101 S.Ct. 120
(1980). The court said in that case, id . at 623,
[I]n determining the scope of a plea bargain,
we cannot use a subjective
standard... The test, as [**38] applied to this particular issue, is whether
"the evidence viewed objectively would lead one in the position of the
defendants to reasonably conclude that the [nolo] pleas would be fully
dispositive of all federal criminal matters." United States v. Minnesota Mining
& Manufacturing Co ., 551 F.2d 1106 (8th Cir. 1977). Although we do not doubt
that appellants would have liked for the plea agreement to dispose of all
criminal matters then under investigation, we cannot conclude that such an
expectation was reasonable viewing the evidence objectively.
WOLFE'S GRAND JURY APPEARANCE
As we have said Wolfe was subpoenaed to appear before the grand jury
immediately after he was sentenced. He did appear, accompanied by his attorney,
who waited outside while Wolfe testified.During the questioning of Wolfe four
recesses were taken, including one for the specific purpose of allowing Wolfe to
consult with his attorney.With one unconsequential exception n9 all the
questions put to Wolfe during his grand jury appearance related to the details
[*1253] of the three courthouse entries, the reasons for those entries and the
entry into IRS to obtain the false credentials, Wolfe's association [**39] with
and knowledge of "Foster", and an exploration of the evasive and contradictory
answers Wolfe gave in response to the questions. It became apparent that
Wolfe's testimony and explanations were untruthful.
n9 Wolfe was questioned briefly as to whether he had ever entered the
building after hours by using the "Thomas Blake" identification. He responded
that he did not think he had done so. (J.A. 307-08)
Wolfe complains that his testimony before the grand jury was
was thereafter used against him. He says he was not given a Miranda warning but
was told that he had no right to claim the protection of the fifth amendment. In
addition he contends that during his appearance he was harassed by the
who ridiculed his testimony and made improper comments about it. We
are not impressed by the complaints.
It is established law that because a witness has been found guilty of
actions in question he is no longer entitled to claim the privilege of the fifth
amendment with respect [**40] to those matters and he may be compelled to
testify about them. United States v. Skolek, 474 F.2d 582 (10th Cir. 1973);
United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967), cert, denied, 390 U.S.
1031 (1968); United States v. Gernie, 252 F.2d 664 (2d Cir.), cert, denied, 356
U.S. 968 (1958); United States v. Romero, 249 F.2d 371 (2d Cir. 1957). Thus, by
virtue of his plea of guilty and the plea agreement Wolfe had no fifth amendment
privilege with respect to his entries into the courthouse, and the prosecutor
was entirely correct in telling him so. Since the prosecutor's questioning
related to those matters it would have been inappropriate to preface the
questioning by a Miranda warning.In any event Wolfe's counsel accompanied him to
the grand jury room, was present outside throughout the hearing, and was
consulted by Wolfe at least once during the questioning. In these circumstances
Wolfe's complaint that he failed to receive a Miranda warning has a hollow ring.
fallacy of Wolfe's contention that his grand jury testimony was
"compelled" becomes apparent when we recall that his testimony was in substance
the same "cover-up" story he had given to the prosecutor a year before. [**41]
As part of the conspiracy he had agreed to tell that story, and he told it as
his voluntary contribution to the conspiracy. Any "compulsion" was applied, not
by the government, but by Wolfe's agreement to perjure himself in furtherance of
Wolfe contends that the indictment should be dismissed because of the
prosecutor's misconduct before the grand jury, and because the prosecutor
misinformed Wolfe's attorney as to the scope of the grand jury questioning. With
respect to these complaints it is enough to say that we have reviewed the
record, including the transcript of Wolfe's grand jury testimony, and we can
find no fault with the prosecutor's conduct. It is true that the questioning of
Wolfe was sharp and persistent, but a prosecutor is under no obligation to
soothe a witness who is obviously evasive and untruthful.
II. THE SEARCH-SEIZURE ISSUES
The search and seizure operation with which we are concerned in this
involved over 200 FBI agents and government personnel nlO who spent over 20
hours examining the files and papers maintained in two California offices of
Scientology. Pursuant to a warrant which specified 162 separate descriptions of
seizable [**42] documents relating to several offenses, the agents entered a
number of rooms in two large buildings, and searched numerous file drawers, desk
drawers and tops, boxes and closets. Appellants contend that the searches and
seizures violated the fourth amendment.
nlO See Tr. 8/27 at 188-90 (Agent Varley). The district court estimated that
"over 150 FBI agents" were involved in the search. United States v. Hubbard,
493 F. Supp. 209, 234 (D.D.C. 1979).
The right of the people to be secure in their persons, houses, papers,
effects, against unreasonble searches and seizures, shall not be violated, and
no [*1254] Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const, amend. IV.
However, the magnitude of the search is not enough by itself to
constitutional violation. Instead, "[o]ur fundamental inquiry in considering
Fourth Amendment issues is whether or [**43] not [the] search or seizure is
reasonable under all the circumstances." United States v. Chadwick, 433 U.S. 1,
9 (1977). nil In this case, "all the circumstances" include not only the scope
of the warrant and the behavior of the searching agents, but also the conditions
under which they had to conduct the search, and the particular nature of the
evidence being sought in relation to the underlying offenses. This court has
recognized that although the crimes of conspiracy and obstruction of justice may
present law enforcement officers with difficult evidence-gathering problems,
such difficulties do not prevent the use of comprehensive search warrants
designed to obtain all relevant documentary evidence.
nil See also Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 2592-93
n.12 ("'key principle of the Fourth Amendment is reasonableness -- the balancing
of competing interests'" quoting Dunaway v. New York, 442 U.S. 200, 219 (1979));
Roaden v. Kentucky, 413 U.S. 496, 501-02 (1973); Chimel v. California, 395 U.S.
752, 765 (1969); Terry v. Ohio, 392 U.S. 1, 19 (1968); Cooper v. California, 386
U.S. 58, 59 (1967); United States v. Rabinowitz, 339 U.S. 56, 63, 66 (1950)
("whether the search was reasonable... depends upon the facts and circumstances
— the total atmosphere of the case").
---------------- -End Footnotes- ----------------
[C]onspiratorial crimes are conducted with more
secrecy than many other
crimes, and search warrants that seek evidence of conspiracy, and otherwise meet
the required standards, may extend to all relevant evidence of that
crime.Otherwise, alleged conspirators would occupy a special protection from
prosecution that is not available to other accused persons. The same may be
said of search warrants seeking relevant evidence of obstruction of justice.
Neither of these offenses possess any special immunity which would protect them
from being ferreted out by proper search warrants seeking relevant evidence.
While these offenses may have certain subjective elements,... the evidence that
proves such subjective elements may be objective, tangible and constitute clear
Re Search Warrant Dated July 4, 1977, 572 F.2d 321, 328 n.4 (D.C. Cir. 1977),
rehearing en bane denied, 572 F.2d 328 (D.C. Cir.), cert, denied, 435 U.S. 925
(1978). See Also Andresen v. Maryland, 427 U.S. 463, 481 n.10 (1976).
After careful consideration of defendants'
claims against the warrant and its
inherently difficult execution, we conclude that the warrant was valid and that
its execution satisfied the [**45] ultimate constitutional requirement of
reasonableness.See sections B and C, infra .
A. Factual Summary
Although the facts relevant to each legal issue
are discussed in context, a
brief overview of the search and seizure operation is appropriate here.
On July 8, 1977, three search warrants were simultaneously executed for
premises owned and operated by the Church of Scientology: one for Washington,
D.C., the other two for the Fifield Manor nl2 and the Cedars-Sinai Complex nl3
in Hollywood, California. Since the evidence introduced at defendants' trial
was obtained from the Hollywood searches, not from the [*1255] Washington
search, nl4 this opinion is concerned only with the validity of the former. The
search warrants were based upon a 33-page sworn affidavit nl5 which set forth
the results of the government's investigation into charges that various
officials of Scientology, including defendants, had conspired to steal — and
had stolen — documents belonging to the federal government, and further had
conspired to obstruct justice by covering upon these crimes during a grand jury
investigation of a burglary of the office of an Assistant United States Attorney
in the United [**46] States Courthouse in Washington, D.C.
nl2 Fifield Manor is located at 5930 West
Franklin Ave., Hollywood,
nl3 The Cedars-Siani Complex is located at 4833
Fountain Avenue, Hollywood,
nl4 The Washington search spawned its own line of
litigation. On July 27,
1977, Chief Judge Bryant held that the warrant executed at Scientology's
facility in the District of Columbia was invalid on its face, and granted
Scientology's motion for return of the seized documents pursuant to Fed. R.
Crim. P. 41 (e). In Re Search Warrant Dated July 4, 1977, 436 F. Supp. 689
(D.D.C. 1977) . This court reversed Judge Bryant's decision and upheld the
validity of the District of Columbia warrant. In Re Search Warrant Dated June
4, 1977, supra, 572 F.2d 321. Upon remand from this court, Judge Bryant then
found that "the agents... illegally and unconstitutionally executed this warrant
and converted this seizure of documents into a general exploratory seizure in
violation of the Fourth Amendment...." In Re Search Warrant Dated July 4, 1977,
No. 77-0151, Memorandum and Order at 10a (D.D.C. Aug. 27, 1979). The decision
of the appeal to this court from that ruling is issued simultaneously with this
opinion. In Re Search Warrant Dated July 4, 1977, Nos. 79-2138, 79-2176 (D.C.
Cir. October 2, 1981). [**47]
nl5 J.A. at 165. The affidavit
was signed by FBI Special Agent Robert
Tittle, and was based largely upon information obtained from Michael Meisner, a
former "Assistant Guardian for Information" and "National Secretary" in the
Scientology hierarchy. Id . at 168; p. 21 supra .
On July 7, 1977, the day before the searches
took place, various supervisory
and legal personnel from the FBI's Los Angeles office, and others from the U.S.
Attorney's office in Washington, conducted a briefing for the agents who had
been selected to participate in the searches of Fifield Manor and the Cedars-
Sinai Complex. At six a.m. on July 8, teams of agents entered both Fifield
Manor and Cedars-Sinai to execute the search. The Fifield Manor search — the
smaller of the two — covered a four-room area around defendant Henning Heldt's
office on the sixth floor, his personal office, a large secretary's office, the
office of his assistant (defendant Snider), and an adjoining but separated
"penthouse" room. Within this area the agents searched approximately eight
file cabinets, one two-drawer file cabinet,
[**48] five desks,
three closets, and various piles of documents and papers.They also searched, but
seized nothing from, an adjoining telex room. All told, the agents seized
approximately 430 documents from Fifield Manor. nl6
---------------- -Footnotes- - - ■
nl6 See Fifield Inventory, Def. Exh. 421, 421a.
--------------- -End Footnotes- - •
The Cedars-Sinai search was far more
extensive. Although over 50 agents were
initially assigned to this search operation, nl7 by mid-morning the supervising
agents decided that the number of agents on hand was insufficient. nl8
Accordingly, approximately 50 additional agents -- who had not been briefed the
day before -- were added to the search teams. nl9 Agents remained on the site
searching well into the night, in over thirty rooms, and examined hundreds of
filing cabinets, boxes, desks, wall cabinets, and assorted loose documents. In
all, between 23,000 and 47,000 n20 separate documents were seized from Cedars.
nl7 See Tr. 8/23 at 50. Over 100
agents and other personnel are listed in
the Joint Appendix as having been assigned to the Cedars-Sinai search, but it is
unclear whether this count includes the 50 late-arriving agents. See Def. Exh.
575, List of Agents Assigned to Search, J.A. at 1314-15. Agent Varley stated
that during the course of the Cedars-Sinai search approximately 180 FBI
personnel were "on the scene," and that from one or two o'clock in the afternoon
continuously until two a.m. the next morning between 110 and 130 FBI people were
actually engaged in searching.Tr. 8/27 at 188-90. [**49]
nl8 See Tr. 8/24 at 10; Tr. 8/27 at 17. United States v. Hubbard, supra, 493
F. Supp. at 230.
See Govt. Br. at 51; App. Br. I at 11; Tr. 8/24, at 35, 36, 38.
n20 Compare Govt. Br. at 25 with App. Br. I at 30.
---------------- -End Footnotes- ----------------
Immediately following the execution of the warrants, the Church filed
separate actions in Los Angeles and in the District of Columbia seeking return
of the seized property pursuant to Fed. R. Crim. P. 41 (e). n21 Neither action
effected a return of all the documents. n22 On August 15, 1978, defendants were
indicted by a federal grand jury in the District of Columbia. Defendants urged
the district court below to suppress all evidence seized in the California
operations. After holding hearings in both Los Angeles and in Washington, and
viewing personally the searched premises in Hollywood, the district court held
the California searches and seizures to be reasonable and refused to suppress
any of the fruits thereof.
----------------- -Footnotes- -----------------
n21 See Church of Scientology v. United States, No. CV-77-2565-MML (CD.
Apr. 4, 1978, and July 5, 1978), reprinted at J.A. 201-229, 230-258 (California
decisions); note 14 supra (District of Columbia decisions). [**50]
n22 The government has returned voluntarily approximately 40% of the
documents it seized. See United States v. Hubbard, supra, 493 F. Supp. at 234;
Govt. Br. at 103 n.l31a.
---------------- -End Footnotes- ----------------
B.Fourth Amendment Interests Implicated in This Case
The fourth amendment serves to protect two
distinct interests. See generally
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (plurality opinion of
Stewart, J.). First, the warrant requirement seeks to guarantee that any
searches intruding upon an individual's privacy must be justified by probable
cause, as determined by a "neutral and detached magistrate." n23 Second, where
probable cause is found and a warrant issues, the particularity requirement
seeks to assure that
---------------- -Footnotes- ------
n23 Johnson v. United States, 333 U.S. 10, 14 (1948).
--------------- -End Footnotes- - - - - ■
those searches deemed necessary should be as limited as possible. Here, the
specific evil is the "general warrant" abhorred by the colonists, and the
problem is not that [**51] of intrusion per se, but of a general, exploratory
rummaging in a person's belongings.
Id . As the Supreme Court stated decades ago,
[t]he requirement that warrants shall
particularly describe the things to be
seized makes general searches under them impossible and prevents the seizure of
one thing under a warrant describing another. As to what is to be taken,
nothing is left to the discretion of the officer executing the warrant. Marron
v. United States, 275 U.S. 192, 196 (1927).
Of course, even when the search warrant meets both the probable cause
particularity requirements, the search itself must be conducted in a reasonable
manner, n24 appropriately limited to the scope and intensity n25 called for by
the warrant. See Terry v. Ohio, 392 U.S. 1, 17-18 (1968) ("This Court has held
in the past that a search which is reasonable at its inception may violate the
Fourth Amendment by virtue of its intolerable intensity and scope."); id . at
28-29; United States v. Rettig, 589 F.2d 418, 423 (9th Cir. [*1257] 1978);
United States v. Clark, 531 F.2d 928, 931 (8th Cir. 1976). When investigators
fail to limit themselves to the particulars in the warrant, both the
particularity [**52] requirement and the probable cause requirement are
drained of all significance as restraining mechanisms, and the warrant
limitation becomes a practical nullity. Obedience to the particularity
requirement both in drafting and executing a search warrant is therefore
essential to protect against the centuries-old fear of general searches and
_______--_------- -Footnotes- -----------------
n24 The right to be free from unreasonably
broad searches is distinct from
those rights which concern a warrant's validity:
"The general right of security from
unreasonable search and seizure was given
a sanction of its own and the amendment thus intentionally given a broader
scope. That the prohibition against 'unreasonable searches' was intended,
accordingly, to cover something other than the form of the warrant is a question
no longer left to implication to be derived from the phraseology of the [Fourth]
v. New York, 445 U.S. 573, 584 n.23 (1980) (quoting N. Lasson, The
History and Development of the Fourth Amendment to the United States
Constitution 103 (1937)).
n25 In this case, scope and intensity refer to the location and manner
which the search was conducted. See text at III 2, 3 infra . Regarding the
term "intensity," see generally Harris v. United States, 331 U.S. 145, 152
(1947) ("The same meticulous investigation which would be appropriate in a
search for two small canceled checks could not be considered reasonable where
agents are seeking a stolen automobile or an illegal still.").
---------------- -End Footnotes- ----------------
Defendants' first claim is that the warrants for Fifield Manor and
Sinai were overbroad. We have already dealt with that argument in our opinion
in In Re Search Warrant Dated July 4, 1977, supra, which concerned the facial
validity of the warrant to search Scientology's offices in Washington, a warrant
identical in all material respects to the ones challenged here. Each of the
warrants contained 162 descriptions of property subject to seizure. Items 1-99
listed documents alleged to have been stolen and copied from the office of an
Assistant United States Attorney in Washington, D.C. Items 100-148 listed
documents alleged to have been stolen and copied from an attorney at the Justice
Department, also in Washington. Finally, Items 149-62 n26 listed either
internal documents of Scientology, or other allegedly stolen documents. With
respect to Items 14 9-62, Scientology in In Re Search Warrant contended that an
agent would construe the warrant, for all practical purposes, as authorizing
discretionary rummaging prohibited by the fourth amendment. See generally In Re
Search Warrant, supra, 572 F.2d at 324, 327 (per curiam), 330 (statement of
Robinson, McGowan, JJ, on suggestion [**54] for rehearing en bane). We held,
on authority of Andresen v. Maryland, 427 U.S. 463 (1976), that the warrant —
when read in conjunction with the affidavit — was sufficiently specific and
particularized, did "not leave to the executing officers impermissible
discretion," and was in all other respects valid. In Re Search Warrant, supra,
572 F.2d at 328.That determination controls this case. n27
n2 6 The following items appeared in the
"Description of Property" attached to
each of the warrants:
149. Synopsis of Gerald Wolfe's June 10, 1977 Grand Jury testimony.
150.Memorandum, notes or
report prepared by Richard Weigand on or about June
12, 1976 relating to Gerald Wolfe, Michael Meisner, about a surreptitious entry
into the United States Courthouse building in the District of Columbia.
notes, memoranda, or reports prepared by Michael Meisner and/or
Gerald Wolfe relating to their entry into the United States Courthouse on or
abount June 11, 1976 and their confrontation with two FBI agents on that date.
152. Guardian Order 1361.
153. Guardian Order 1634.
Any and all Guardian Orders issued pursuant to
Guardian Order 1634
which would be identified as Guardian Order 1634 — (number).
155. A Guardian Order generally identified as "Snow White".
15 6. Any
and all Guardian Orders issued pursuant to the Guardian Order
generally identified as "Snow White" which would be identified by the mention of
157. Any and all documents contained in the Operations
and all documents of the Internal Revenue Service relating to the
Church of Scientology Calif, marked "Confidential, GO 1361 Material".(This would
include the Hawaii and California cases.)
Any and all documents attached to a memorandum from
identified as "Mitch" or Michael Meisner identified as "Mike".
160. Any and
all memoranda written by Michael Meisner identified as "Mike"
making reference to attached government documents.
161.Any and all documents marked "Non-FOI".
162. Any and all fruits, instrumentalities, and
evidence (at this time
unknown) of the crimes of conspiracy, obstruction of justice and theft of
government property in violation of 18 U.S. Code @@ 371, 1503 and 641 which
facts recited in the accompanying affidavit make out.
J.A. at 162-63. [**55]
n27 We disagree with the statement in the
concurring opinion that the "ideas"
in these documents are protected by the decision in Stanford v. Texas, 379 U.S.
478, 485 (1965). The documents here bear no relationship to the material seized
in Stanford . Seizing the above documents in no way indicates an intent by the
government to "[suppress] objectional publications," or to "[stifle] liberty of
expression," when it is "books that are seized because of the ideas which they
contain." Not one of the 14 items (149-62) includes any "book," or "publication"
and none refers in any sense to any ideology, but only to ordinary unlawful
conspiracies and substantive criminal offenses. The crimes charged here are not
"ideological offenses." Those who formulate conspiracies to obstruct justice,
steal government property, burglarize, bug, harbor fugitives from justice, and
commit and suborn perjury before the grand jury (J.A. 108-149, 150-199) have no
constitutional right under the first amendment to conceal the documentary
evidence thereof. A mere reading of items 149 to 162 and the supporting
affidavit makes it plain that none of them transgress the liberties protected by
the first amendment. Likewise none of the documents are of a religious nature.
In addition, this is not a third-party search situation as in Zurcher v.
Daily, 436 U.S. 547 (1978), and freedom of religion is not endangered
but encouraged when criminal conspiracies are suppressed that attempt to hide
Defendants also allege that the warrants lacked
probable cause for various
particular items listed, and also that the warrants were based on stale
information. The probable.cause issue was briefly discussed in this court
earlier decision concerning the Washington warrant:
These offenses [alleged in the affidavit] are not "amorphous"
-- they are
specific, particularized and according to the affidavit supported by reams of
hard documentary evidence as well as by sworn statements of some of the alleged
conspirators and principals in the conspiracy and substantive offenses.... [W]e
agree with the finding of the United States Magistrate that the affidavit did
show probable cause[.]
In Re Search Warrant Dated July 4, 1977, supra, 572 F.2d at 326.
Defendants now focus their attack upon the probable cause basis for
153-56. We fully agree with the district court that the affidavit provided
adequate support for the inclusion of items 153-54 in the warrant. See United
States v. Hubbard, supra, 493 F. Supp. at 218; J.A. at 171-72. Regarding items
155 and 156, we agree with the government that although the affidavit's
description of "Snow White" as one of several "programs directed against
governmental agencies" is "cryptic" and ambiguous, Govt. Br. at 74.
Nevertheless, the affidavit does provide probable cause to believe that the
"Snow White" program was linked to criminal activity. J.A. at 171-188.
also find that the affidavit provided adequate basis for the conclusion
that any of the documents specified in the Description of Property might have
been found either at Fifield Manor or at Cedars-Siani; therefore it was
appropriate for both warrants to list all 162 particulars. See generally United
States v. Hendershot, 614 F.2d 648, 653-54 (9th Cir 1980); United States v.
Melvin, 596 F.2d 492, 495 (1st Cir.), cert, denied, 444 U.S. 837 (1979)
(affidavit need not prove that it is "more-likely-than-not" that evidence is at
the particular location to be searched, but only that it would be reasonable to
search for it in that location).
Finally, we find unpersuasive defendants' argument that the affidavit
stale. A fair reading of the affidavit reveals that it was based on information
confirmed within a month immediately preceding the search. See J.A. at 192-94.
In this case, as in Andresen v. Maryland, supra, 427 U.S. at 478 n.9, it was
"eminently reasonable" to believe that the documents sought in the warrant would
be maintained in the locations indicated in the affidavit. See generally United
States v. Hubbard, supra, 493 F. Supp. at 218.
---------------- -End Footnotes- ----------------
There remain, however, the issues related to
the execution of the warrants.
n28 Normally, criminal defendants seeking suppression on appeal allege that the
particular [*1259] evidence used against them at trial was unlawfully
seized, and for that reason should not have been admitted. Weeks v. United
States, 232 U.S. 383 (1914). Defendants here, however, make no such argument.
They have made no attempt before this court to single out as unlawfully seized
any of the 201 particular documents used against them at their trial.n29
instead that because the search as a whole was a generaly
search, all documents therein seized must be suppressed. Defendants apparently
have chosen to place all their hopes on an argument for total suppression,
asserting that "[ujnless the exclusionary rule is held to require the
suppression of all the fruits of a general search, there will be no restraint
upon the conduct of such searches, and the core of the Fourth Amendment will
have been eviscerated." App. Br. I at 117 (emphasis in original).
n28 Both sides vigorously argue the standing of the defendants to raise
propriety of the search as an issue in this case. The government concedes,
however, that all of the defendants have a "legitimate expectation of privacy"
in their respective personal offices.See Gov't Br. at 65-72; Rakas v. Illinois,
439 U.S. 128, 143 (1978). It is essentially uncontested, therefore, that
defendants may raise the issue of the scope of this search, at least insofar as
it relates to their own offices which were located both at Fifield Manor (Heldt
and Snider) and at Cedars-Sinai (Willardson and Raymond). The dispute over
standing thus boils down to whether defendants' allegations of a general search
can be based, even in part, upon evidence that agents rummaged at will in areas
of Scientology's facilities not necessarily used by the defendants as their
The district court's resolution of this issue
is unclear. At one point the
court stated that "only the defendants Heldt, Snider, Willardson, and Raymond
have fourth amendment rights touched by the searches... and their rights are
to evidence seized from their offices which is being introduced against
them." United States v. Hubbard, supra, 493 F. Supp. at 215. Yet the court also
engaged in a lengthy analysis of defendants' allegations regarding a general
search, allegations which rested upon the agents' conduct throughout their
search of the Fifield Manor and Cedars-Sinai complexes. Id . at 228-34. We
believe the district court properly addressed these general allegations, and in
so doing properly considered the totality of the circumstances surrounding the
search of the two buildings. See generally note 11 and accompanying text supra
n29 The district court noted that "defendants have made no attempt
directly challenge the legality of the seizure of these case-in-chief
documents." United States v. Hubbard, supra, 493 F. Supp. at 221. Defendants
did, however, submit to the district court an analysis of the government's case-
in-chief documents, asserting that "all the case-in-chief documents must be
suppressed." See Defendants' Resp. to Gov't Submission Relating to Case-in-Chief
Documents, J.A. at 864, 869.
Although we have not been asked to do so, we have carefully considered
defendants' analysis presented to the district court on this question, and find
it meritless. First, defendants virtually concede the government's assertion
that the documents were within the Description of Property listed in the
warrant. See Defendants' Motion for Return of Gov't's Index Case-in-Chief
Documents (Sept. 4, 1979). Second, their own chart detailing the location of
the case-in-chief documents does not show any coming from Lawrence's office or
from the "Action Bureau," the only locations the agents searched that appellants
seriously argue were outside the warrant. J.A. 872-77. See pp. 14-15 & n.18,
infra . Finally, defendants' allegation that those
seized under Items 159-61 must be suppressed for lack of particularity is
contrary to our holding that the warrant is sufficiently particularized. See
TAN 2 6-27 supra .
---------------- -End Footnotes- ----------------
We recognize that in some cases a flagrant
disregard for the limitations in a
warrant might transform an otherwise valid search into a general one, thereby
requiring the entire fruits of the search to be suppressed. See generally
United States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978); United States v.
Fernandez, 430 F. Supp. 794, 801 (N.D. Cal. 1976); United States v. Nine 200-
Barrel Tanks of Beer, 6 F.2d 401, 402 (D.R.I. 1925). n30 Cf.United States v.
Tracy, 350 F.2d 658 (3d Cir.), cert, denied, 382 U.S. 943 (1965) (all evidence
suppressed for disregard of limits on use of force). If in this case law
enforcement officers had conducted a document search as if no limiting warrant
existed, rummaging at will among defendants' offices and files, then the mere
existence of a valid — but practically irrelevant -- warrant for certain
specified documents would not be determinative of whether the search was so
unreasonable as to require suppression of everything seized.Defendants do show
several instances where documents were seized outside the warrant, but they do
not demonstrate such flagrant disregard for the terms of the warrant which might
make the drastic remedy of total suppression [**59] necessary. Absent that
sort of flagrant disregard, the appropriate rule seems to be that where officers
seize some items outside the scope of a valid warrant, this by itself will not
affect the admissibility of other contemporaneously seized items which do fall
within the warrant. See United States v. Forsythe, 560 F.2d 1127, 1134 (3d Cir.
1977) ("Assuming arguendo that the seizure of the items not listed in the
warrant was illegal, this does not justify suppression of highly probative
evidence consisting of those documents and records which were legally seized
pursuant to a valid warrant."); United States v. Daniels, 549 F.2d 665, 668 (9th
Cir. 1977); United States v. Artieri, 491 F.2d 440, 445-46 (2d Cir.), cert,
denied, 419 U.S. 878, 95 S.Ct.142, [*1260] 42 L.Ed.2d 118 (1974); United
States v. Mendoza, 473 F.2d 692, 696-97 (5th Cir. 1972); United States v.
Holmes, 452 F.2d 249, 259 (7th Cir. 1971), cert, denied, 405 U.S. 1016 (1972).
See geneally United States v. Scott, 516 F.2d 751, 760 n.19 (D.C. Cir. 1975),
cert, denied, 425 U.S. 917 (1976) (dictum noting agreement with the rule.)
n30 But see Vonderahe v. Howland, 508 F.2d 364,
368-72 (9th Cir. 1974) (even
where overbroad warrant is combined with overbroad search for documents,
equitable application of exclusionary rule does not require suppression or
return of all evidence seized).
---------------- -End Footnotes- ----------------
In the following section, we outline the
standards for judging the
reasonableness of a document search, and explain why the government's actions --
taken as a whole -- do not amount to a flagrant disregard of those standards. C.
The General Search Issue
"[T]he Fourth Amendment confines an
officer executing a search warrant
strictly within the bounds set by the warrant[.]" Bivens v. Six Unknown Named
Agents, 403 U.S. 388,
394 n.7 (1971). In the context of document searches, the
need to prevent "general, exploratory rummaging in a person's belongings" n31 is
particularly acute. Unlike searches for other tangibles, document searches —
like eavesdropping and bugging "searches" n32 — tend to involve broad
disclosures of the intimacies of private lives, thoughts and transactions. The
acute constitutional hazards of this sort of investigative activity have been
recognized by the Supreme Court. In Andersen v. Maryland, 427 U.S. 463 (1976),
which involved a search and seizure of a criminal defendant's office files, the
Supreme Court stated:
----------------- -Footnotes- ----------------
n31 Coolidge v. New Hampshire, supra, 403 U.S. at 467. [**61]
n32 The Court's directive to judicial officials in Andersen to enforce a
minimization requirement, discussed immediately infra, has a parallel in
eavesdropping and wiretap cases. See e.g ., Katz v. United States, 389 U.S.
347, 355-56 (1967); Berger v. New York, 388 U.S. 41, 53-4, 56-7, 66-67 (1967;
See generally Scott v. United States, 436 U.S. 128 (1978) (concerning both
judicial and statutory minimization requirements).
recognize that there are grave dangers inherent in executing a warrant
authorizing a search and seizure of a person's papers that are not necessarily
present in executing a warrant to search for physical objects whose relevance is
more easily ascertainable. In searches for papers, it is certain that some
innocuous documents will be examined, at least cursorily, in order to determine
whether they are, in fact, among those papers authorized to be seized. Similar
dangers, of course, are present in executing a warrant for the "seizure" of
telephone conversations. In both kinds of searches, responsible officials,
including judicial officials, must take care to assure that [**62] they are
conducted in a manner that minimizes unwarranted intrusions upon privacy . Id .
at 482 n.ll (emphasis supplied). n33
n33 TMus if any of the documents used by the government as
against defendants had been seized without scrupulous adherance to the warrant,
we might be required to reverse. But defendants make no case for suppressing
these particular documents on those grounds, see note 29 and accompanying text
supra . There we have stated that the issue before us is not whether any
particular documents used against defendants should have been suppressed because
those documents were seized in violation of the scrupulous exactitude test;
rather the question is whether documents lawfully seized under a valid warrant
should be suppressed because the search accompanying their seizure was too
general. The scrupulous exactitude test is too rigorous a standard to use in
deciding that issue.
This court implicitly recognized the importance
of the Andersen minimization
requirement in our [**63] earlier decision concerning the Washington warrant.
The court held the warrant valid, but did so expressly and repeatedly on the
ground that a study of the accompanying affidavit would make the search warrant
sufficiently particular and specific so as to avoid the danger of a general
search. In Re Search Warrant Dated July 4, 1977, supra,
572 F.2d at 324, 325,
326, 327. Since the permissible intensity of any search is determined by the
description [*1261] of the things to be seized, n34 the court's explicit
references to the particulars in the affidavit indicated our intention that the
execution of this document search be confined to those particulars, so that it
would not become simply a grant of "'authority to the agents to search for and
seize any evidence of conspiracies to steal government property and to obstruct
justice....'" Id . at 324 (original emphasis). The court described that latter
broad construction as being "patently incorrect," and noted that "[t]he recited
facts and designations of property and offenses impose particular limits upon
the search warrant...." Id .It is undoubtedly true that a shorter, more clearly
delimited warrant might have made the agents' [**64] duty to properly limit
their search easier to fulfill. But the question now is not whether the warrant
could or should have been more narrowly confined; rather, given the broad scope
of this already approved warrant, the question here is whether the searching
agents properly confined themselves to its terms when conducting their search. A
proper execution of a search warrant for numerous documents requires three
things: adequate preparation; obedience to area limitations; and restrictions on
seizure of items not mentioned particularly in the warrant. We discuss each
requirement, and the degree to which it was adhered in this case, below.
----------------- -Footnotes- --------------
n34 2 W. LaFave, Search and Seizure @ 4.10(d) (1978); see note 25 supra .
---------------- -End Footnotes- ----------------
1. Adequate preparation .
Warrants are not self-executing; they require agents to carry them
order for a warrant's limitations to be effective, those conducting the search
must have read or been adequately apprised of its terms. n35 Where, as here,
the terms are numerous, complex, and [**65] potentially overbroad unless
limited by the specifications of an extensive affidavit, the need for careful
preparation on the part of those searching is essential. n36 In this case we
are convinced that most of the agents conducting the search were provided with
as much preparation and information as was reasonable under the circumstances to
enable them to carry out the warrant's complicated terms. n37 On the other
hand, some 50 agents who arrived at Cedars-Sinai during the afternoon were given
neither a meaningful opportunity to read the warrant and affidavit, nor any sort
of comprehensive briefing of their terms, before beginning their mission. n38
In conducting a search of this [*1262] complexity and magnitude the agents
should be familiar with the general nature of the crimes that are charged and
the list of items they are authorized to seize, either through reading of the
warrant or through adequate instructions or supervision from those in charge. If
a supplementary document like an affidavit is essential to properly understand
the limitations of the warrant, see text at 10-11 supra, then its contents must
be examined, or else communicated to the agents by their supervisors. [**66]
n39 Minimization designed to control the proper scope of the search cannot occur
without such knowledge.
n35 Only when the agents are aware of the
warrant, through personal knowledge
or instruction, can they properly exercise the discretion vested in them to
carry out its terms. Cf . Dalia v. United States, 441 U.S. 238, 257 (1979) (in
of specific instructions, execution of warrant "generally left to the
discretion of the executing officers").
n36 As Judge Leventhal pointed out, "we are concerned with
administration of criminal justice." Moore v. United States, 461 F.2d 1236, 1238
(D.C. Cir. 1972). He went on to note that in judging whether a warrant is
sufficiently particular, the court should assume that it will be "read 'with
reasonable effort' by the officer executing the warrant." Id .
n37 The majority of the agents spent the day before the search being
thoroughly briefed on the operation they were about to undertake. They were
provided with copies of the affidavit and the search warrant, and questions
regarding the warrant and the law of search and seizure were answered by their
team leaders and by Assistant United States Attorneys. See United States v.
Hubbard, supra, 493 F. Supp. at 229-30; Def. Exh. 361, J.A. at 1270; Def. Exh.
359, J.A. at 1256, 1258; Tr. 7/16, at 94, 144-45, 164-65, 171. [**67]
At least one new agent admitted he had not read any of the 162
particulars in the warrant. Tr. 8/24, at 149. Supervising Agent Calley
admitted that the briefing given to the late arriving agents lasted no longer
than 15 or 20 minutes, and that they were not given copies of the warrant or
affidavit to examine.Tr. 8/24, at 38-9. Surely what the FBI spent all day
teaching and reviewing on the 7th of July could not be learned in only 15
minutes on the 8th. Agent Calley's simplified and imprecise explanation of the
warrant's terms was an inadequate substitute for distributing copies of the
warrant and affidavit to the agents for their reference. See tr. 8/24, at 37-42
(Calley told the newcomers, inter alia, "to be alert for any documents that
tended to indicate the Church was involved in the defamation of anyone's
character...," id . at 41); Tr. 8/27, at 188-90 (Agent Varley); Tr. 8/24 at 125,
129-30, 146, 154 (Agent Maryman); id . at 88A-89 (Agent Harmon); Tr. 8/27 at 61,
138 (Agent Dietzen); Tr. 7/16 at 287-88, 309 (Agent Oppy).
n39 See generally Moore v. United States, 461 F.2d 1236, 1238 (D.C. Cir.
1972); United States v. Johnson, 541 F.2d 1311, 1315-16 (8th Cir. 1976); United
States v. Marti, 421 F.2d 1263, 1268-69 (2d Cir. 1970), cert, denied, 404 U.S.
---------------- -End Footnotes- ----------------
Nonetheless, though the facts here in some respects approach the limits
constitutional acceptability, we do not believe that the arrival of a
supplementary contingent of inadequately prepared agents in this particular case
resulted in a general search which might require the exclusion of all seized
documents. Those agents who received inadequate information initially, and who
were brought in only after the supervising agents on the scene determined that
additional manpower was required, n40 always represented less than half the
total of those searching at Cedars-Sinai. n41 The agents operated in teams and
there is no evidence that the first group of agents, or the late arriving
agents, were not adequately supervised. They were instructed that if they had
questions regarding particular documents, they should seek out their search team
leaders who would determine whether the documents fell within the scope of the
warrants; n42 such consultations occurred frequently throughout the operation.
n43 They were also informed that copies of the warrant and affidavit would be
available for their use within the search area. n44 Even more important, the
late-arriving agents worked alongside [**69] and in conjunction with others
— both supervisors and
searches — who had been
satisfactorily briefed, who
had reviewed the warrant and affidavit and had them in their possession, n4 6 and
who assisted the newcomers in their choice of documents to be seized. n47 As a
final measure, the leaders of the search reviewed many of the documents
initially seized by the new agents in order to compare them to the warrant's
particulars, before listing them in the inventory of items to be seized. n48
Thus, on the whole, we conclude that the inadequate initial preparation of some
agents, though disturbing, did not so taint this search as to convert it into a
general rummage for evidence, and we therefore decline to order complete
suppression on this basis.
----------------- -Footnotes- -----------------
n40 See Tr. 8/24, at 10.
n41 See note 17 and accompanying text, supra .
n42 See Tr. 8/24, at 43-44, 147; Tr. 8/27, at 317.
See Tr. 7/16, at 272; Tr. 7/17, at 443; Tr. 8/24, at 177; 8/27, at 140.
n44 See Tr. 8/22, at 55; 8/24, at 41-44.
n45 See Tr. 7/16, at 309.
See Tr. 8/22, at 55; Tr. 8/24, at 151-52; Tr. 8/27, at 318. [**70]
n47 See Tr. 8/24, at 177.
n48 See Tr. 7/16, at 310; Tr. 8/27, at 316-17.
---------------- -End Footnotes- ----------------
2. Area limitation .
second limitation upon searches concerns the area to be covered by the
search operation itself. It it well accepted that the authority to search
granted by any warrant is limited to the specific places described in it, and
does not extend to additional or different places. See, e.g., Keiningham v.
United States, 287 F.2d 126, 129 (D.C. Cir. 1960); United States v. Principe,
499 F.2d 1135, 1137 (1st Cir. 1974); 2 W. LAFAVE, SEARCH AND SEIZURE @ 4.10
(1978). [*1263] In this case the only serious allegation of geographic
overbreadth n4 9 is raised by defendant Mary Sue Hubbard, and concerns Mrs. Janet
Lawrence's office in Fifield Manor.
n4 9 At Fifield Manor, defendants point out that the
"Telex room" across from
the Heldt suite was searched. However, they have stipulated to the fact that
nothing was seized therein.J.A. 1337-38.
At Cedars-Sinai, the agents did conduct a broad
preliminary search throughout
the facility, but this was done only to ensure the safety of the agents, to
prevent sabotage to the building or the documents, and to locate the file
cabinets mentioned in the warrant.See Tr. 8/23, at 255; United States v.
supra, 493 F. Supp. at 277. No documents were seized during this
preliminary search. See J.A. 132; 152.
However, later in the morning, a Cedars-Sinai
search team entered an area of
the first floor labeled the "Action Bureau," and seized a small number of
documents concerning "codes." United States v. Hubbard, supra, 493 F. Supp. at
228; Tr. 7/16 at 243-50, 256-57.The "Action Bureau" was not mentioned in the
warrant or affidavit as being subject to the search, see also Gov't Br. at 22
n.23, and Agent Oppy admitted that he continued to search this "Bureau" despite
knowing that it was not the "Information Bureau" specified by the warrant.Tr.
7/16 at 248. Although this search of the "Action Bureau" violated the area
limitations of the Cedars-Sinai warrant, see Church of Scientology v. United
States, No. CV-77-2565-MML, (CD. Cal. July 5, 1978), Mem. Dec. at 14-16, J.A.
at 243-45, the few documents seized therein were returned by the government,
United States v. Hubbard, supra, 493 F. Supp. at 228, and not submitted as part
of its case-in-chief against defendants. See note 29 supra .
---------------- -End Footnotes- ----------------
The Fifield Manor warrant authorized a search of
"the suite of offices of Mr.
Henning Heldt[.]" The warrant also stated that "[t]he office of Mr. Henning
Heldt... is located on the sixth floor, the last office on the left-hand side of
the corridor to the right of the elevator." J.A. at 155. No one else's office
was authorized to be searched at Fifield Manor. Mrs. Lawrence's office, a free-
standing penthouse room, or hut, built out on top of the roof extending outside
Mr. Heldt's office, n50 was not mentioned in the warrant; yet her office was
searched and many documents therein seized. The question is whether or not her
office could reasonably have been viewed by the searching agents as constituting
part of "the suite of offices of Mr. Henning Heldt[.]"
n50 A path from the public hallway elevators to the
Lawrence office structure
(bottom left) which avoids the Heldt suite is illustrated by a broken line on
the map here reproduced:
Appellants contend that it could not for several
reasons. First, [**72]
the agents who conducted the search, in their "302 forms" (dictated on July 8
and 14) describing the location from which documents were taken, designated the
hut as "the office of Janet Lawrence." n51 Second, Mrs. Lawrence
[See Illustration in Original] [*1265]
informed the agents that the hut
was her office, not Mr. Heldt's, and that she did not work for Mr. Heldt. n52
Despite her statement, and despite the lack of any information which might have
contradicted Mrs. Lawrence, including any marking or identification on the hut,
the agents ignored her and demanded entry. The most important factor, however,
is contended to be the physical discontinuity of the Heldt suite and the
Lawrence office. n53 To reach the latter from the former the
agents had to go
outside onto the roof of the Manor, and approach the free-standing penthouse
structure, which was approximately nine feet from Heldt's office windows. Since
the penthouse office was independently locked, access to the Heldt offices would
not also provide access to it. Further, it is undisputed that the structure
could be easily reached without ever entering the Heldt suite of offices. n54
n51 J.A. 1273, 1276. See also Govt.
Stipulation, J.A. at 1278 ("On July 8,
1977, documents were seized by FBI agents from the office of Janet Lawrence").
See Tr. 7/6, at 291-92, 294.
n53 See note 50 supra .
n54 See Tr. 7/6 at 417-18; Tr. 8/29 at 324-30.
--------------- -End Footnotes- -
These contentions were responded to by the
District Court which examined the
premises and found in United States v. Hubbard, supra, 493 F. Supp. at 226, 227:
The only controversial question with respect to the scope of the Fifield
Manor search was the activity in Janet Lawrence's office and the telex room. In
deciding this issue, the Court was greatly aided by the view of the premises
taken at the defendants' request. As one enters the inner office of Henning
Heldt, one is struck by the appearance of a hut across the terrace of the roof.
nl5 Access to the hut is available through French doors in the Heldt office .
From the vantage point of an agent attempting to locate the boundary of the
Heldt suite, it would be reasonable to assume that this hut, right outside the
doors of the Heldt office, would be part of the suite.Much has been made of the
strict definition of a "suite." Webster's Third New International Dictionary
defines "suite" as "a series or group of things forming [**74] a unit or
constituting a complement or collection: SET: as a (1): a group of rooms
designed for occupancy as a unit." Since the nearest entrance to the hut was
through the office of Henning Heldt, it was logical to assume that those offices
formed a unit.In fact, Janet Lawrence testified that she, and her co-workers in
the hut, had to use the restroom in the Heldt office . Trans, of August 29,
1979 at 326.She further testified that on the day of the search the office was
unmarked ; thus, there was nothing to indicate that it did not constitute part
of the Heldt suite. Trans, of August 29, 1979 at 346-47. (Emphasis added).
nl5 The Court paced off the distance between the
Heldt office and the hut.
The distance is approximately nine feet.
The statement of Mrs. Lawrence that
the hut was not Heldt's office was hardly
the statement of an unbiased witness who should have been permitted to lay down
the boundaries for the agents' search. Access to the penthouse could be had
through the French doors in Heldt's private office, nine feet from the penthouse
entrance, and the bathroom used by the occupant of the penthouse was in the
Heldt office.The long route to reach the "Lawrence" [**75] room does not
impress us as a reasonable alternative.
These factors taken together convince us that entry into Lawrence's
was not outside the area limitation of the Fifield Manor warrant. The District
Court's finding to that effect is not clearly erroneous and must be sustained.
See generally Campbell v. United States, 373 U.S. 487 (1963); United States v.
Rischard, 471 F.2d 105, 107 (8th Cir. 1973); United States v. Tallman, 437 F.2d
1103 (7th Cir. 1971); United States v. Nardone, 127 F.2d 521 (2d Cir.), cert,
denied, 316 U.S. 698 (1942). Evidence seized therefrom was therefore properly
seized. The defense, moreover, has conceded that none of the documents seized
from Mrs. Lawrence's office were used as evidence-in-chief by the [*1266]
prosecution, n55 and has failed to make even a colorable argument that they were
used in any other fashion by the government. Cf . Br. for App. Hubbard at 64-
5. Seizure of documents from Lawrence's office thus did not affect defendants'
conviction in any way.And this search does not constitute evidence of flagrant
disregard for the warrant. The agents did not act capriciously or wantonly in
searching the Lawrence office. On the [**76] contrary, they entered only
after an Assistant United States; Attorney was consulted by the agents in charge,
and a deliberate, collective decision was made to proceed, n56 a decision not
without some good faith, rational basis. n57 The search of Mrs. Lawrence's
office therefore was valid and does not constitute evidence of a general search
requiring suppression of documents seized from the Heldt suite at Fifield
Manor.See cases cited at pp. 43-44, supra .
----------------'- -Footnotes- -----------------
Statement by Mr. Boudin at oral argument.
See also note 29 supra .
n56 See Tr. 7/19 at 5655-63.
One agent, for example, who searched the Lawrence office apparently
believed (erroneously) that it was part of the Heldt suite because access to it
could only be obtained by entering Heldt's personal office. Tr. 7/20 at 6029-
30.We note further that there were no washroom facilities in the Lawrence
office, and that Mrs. Lawrence therefore had to make use of the facilities in
the Heldt suite, a fact she admitted at the suppression hearing. See Tr. 8/29
---------------- -End Footnotes- ----------------
Seizing Items Not Mentioned in the Warrant -- Limitations on the Plain
We have already noted that the particularity requirement of the fourth
amendment "prevents the seizure of one thing under a warrant describing another.
As to what is to be taken, nothing is left to the discretion of the officer
executing the warrant." Marron v. United States, 275 U.S. 192, 196 (1927). Thus,
in general, only items particularly mentioned in the warrant may be seized. See,
e.g., United States v. Bills, 555 F. 2d 1250, 1251 (5th Cir. 1977); United
States v. Dzialak, 441 F.2d 212 (2d Cir.), cert, denied, 404 U.S. 883 (1971);
United States v. Alloway, 397 F.2d 105, 110 (6th Cir. 1968). See also United
States v. Kirschenblatt, 16 F.2d 202, 203-04 (2d Cir. 1926). Applying this rule
with unmitigated rigor, however, would preclude the seizure of any item, no
matter how obviously incriminating at a glance, simply because the searching
officer happened to be glancing pursuant to a search warrant. In Coolidge v.
New Hampshire, supra, at plurality of the Supreme Court found that under certain
circumstances the police may seize objects in "plain view" when they are
searching pursuant to [**78] a warrant, even though the warrant does not
those objects. The Justices recognized,
of course, that an expansive
interpretation of the plain view exception might swallow the rule of
any evidence seized by the police will be in plain view, at least at the
moment of seizure. The problem with the "plain view" doctrine has been to
identify the circumstances in which plain view has legal significance rather
than being simply the normal concomitant of any search, legal or illegal.
Coolidge v. New Hampshire, supra, 403 U.S. at 465 (original emphasis).
Unless these circumstances are identified and applied, any warrant
authorizing a search for a particular document might, in conjunction with the
plain view exception, permit "a government official to use a seemingly precise
and legal warrant only as a ticket to get into a man's home, and, once inside,
to launch forth upon unconfined searches and indiscriminate seizures as if armed
with all the unbridled and illegal power of a general warrant." Stanley v.
Georgia, 394 U.S. 557, 572 (1969) (Stewart, J., concurring). Clearly, the plain
view exception must be defined in such a way as to preclude using a [**79]
document search warrant as authority to search for and seize all evidence of
wrongdoing in the form of documents which happen to be located at the search
upon Coolidge, courts have formulated three limitations upon the plain
view exception. First, the searching agents must lawfully be in the location
where their plain viewing occurs, i.e ., seizures based upon plain view can
occur only within the geographical limitations set out, or implied, in the
warrant. n58 Second, any seized item unspecified in the warrant must possess an
incriminating character plainly and immediately apparent on its face, a
character sufficiently incriminating to establish probable cause for its seizure
despite the absence of a warrant mentioning it. Third, the searching agents
must come upon the unspecified items inadvertently. We find the first
limitation satisfied, and turn immediately to the latter two.
---------------- -Footnotes- -
n58 See Part II C(2) supra .
--------------- -End Footnotes-
The requirement that items seized under plain
view must display a [**80]
plain, immediately apparent incriminating character derives from the need to
protect the integrity of the warrant and prevent against random rummaging.
[T]he extension of the original justification [for the
search warrant] is
legitimate only where it is immediately apparent to the police that they have
evidence before them; the "plain view" doctrine may not be used to extend a
general exploratory search from object to another until something incriminating
at last emerges.
New Hampshire, supra, 403 U.S. at 466. Many courts have applied this
limitation to cases involving seized documents where the warrant authorizing the
search did not specify them. See, e.g., United States v. Ochs, 595 F.2d 1247,
1257 & n.8 (2d Cir.), cert, denied, 444 U.S. 955 (1979) (numerous cases
cited).The incriminating character limitation necessarily permits a brief
perusal of documents in plain view in order to determine whether probable cause
exists for their seizure under the warrant. See generally id . at n.8 (cases
cited). If in the course of that perusal, their otherwise incriminating
obvious, they may be seized. Id. See Mapp v. Warden, 531
F.2d 1167, 1172 (2d [**81] Cir), cert, denied, 429 U.S. 982 (1976) ("it would
be somewhat absurd to require an investigator to be oblivious to that which
would be apparent to anyone else with normal powers of observation"). Otherwise,
the perusal must cease at the point at which the warrant's inapplicability to
each document is clear. Searching officers may not cart away documents
unspecified by the warrant which simply look somewhat suspicious, comb through
them carefully at their leisure and then return them if they do not constitute
evidence of criminal activity. That sort of abuse would return us to the days
of the general warrant and must be scrupulously avoided.
The other, closely related limitation on the admission of unspecified
documents seized under a search warrant is that of inadvertence. n59 This
requirement has been subjected to substantial scholarly criticism, e.g ., 2 W.
LAFAVE, SEARCH AND SEIZURE @ 4.11(d) (1978); The Supreme Court, 1970 Term, 85
HARV. L. REV. 3, 244-46 (1971), and has been unevenly applied by courts.Compare,
e.g., United States v. Davis, 542 F.2d 743, 745 (8th Cir.), cert, denied, 429
U.S. 1004 (1976), and United States v. Wysong, 528 F.2d 345 (9th Cir. 1976)
(both [**82] courts characterize as "inadvertent" discovery of items as to
which it appears police could have made showing of probable cause to seize, but
failed to do so), with United States v. Winston, 373 F. Supp. 1005, 1007 (E.D.
Mich. 1974) (seizure of item cannot be "inadvertent" if, before searching
begins, police have probable cause to seize it). In the context of this case we
believe the inadvertence limitation stands for the simple proposition that
agents must not be searching for items outside the particulars of the warrant
when they conduct the search; in other words, agents must act in good faith to
confine themselves to searching for the specified [*1268] items.n60 If,
while conducting a search reasonably designed to find the specified items, an
agent observes an unspecified item for which probable cause to seize exists on
its face, he may seize it. He may not, however, seek a warrant or conduct his
search for the purpose of looking for items not included in the warrant; rather,
if he finds and seizes such items, he must do so truly "inadvertently."
---------------- -Footnotes- -------------
See Coolidge v. New Hampshire, supra, 403 U.S. at 469-70 [**83]
n60 See generally United States v. Rettig, supra, 589 F.2d at 423.
--------------- -End Footnotes- ------------
Applying the good faith/inadvertence limitation in this case, we find no
persuasive evidence that the search was merely a subterfuge to examine or seize
other evidence not specified in the warrant. See United States v. Hubbard,
supra, 493 F. Supp. at 231. On the contrary, it appears that the agents, in
their preparation and execution of the search, intended to look only for
evidence concerning the offenses alleged in the warrant and affidavit,
specifically, evidence which was arguably within the scope of Item 162 if not
within the other 161 items.n61
---------------- -Footnotes- ------
n61 See notes 37, 42-48 and accompanying text, supra .
--------------- -End Footnotes- - - - - -
Turning to the question of compliance with the immediately apparent
incriminating character requirement, we note that the district court failed to
note with specificity how many documents were taken pursuant to the plain view
doctrine, or how many of [**84] those seized under plain view actually met
the incriminating character requirement. The court did decide that "red-box
data," and other documents discussing infiltration and covert operations
directed against private and state organizations, satisfied this limitation. Id
. at 231-33. But it did not discuss numerous other documents alleged not to have
possessed an immediately apparent incriminating character, and admitted frankly
that "[p]erhaps some documents were seized outside the warrant." Id . at 234. For
their part, defendants allege that up to 71% of the documents were outside the
particulars of the warrant, and thus their seizure could be justified only on
the basis of plain view; n62 they make no effort, however, to estimate how many
of these alleged "plain view documents" were seized in violation of the
incriminating character limitation. The court found the basis for the 71%
figure to be "valueless due to basic analytical flaws in [the] interpretation of
the warrant." 493 F. Supp. at 233. The Scientology claim was also based on a
random sample of only 400 documents out of 23,000 that were evaluated by a law
firm representing appellants and by fifty "clerks" all of whom [**85] were
members of the Church of Scientology (Tr. July 17 at 5075-80, 5103). While we
do not accept the defendants' figure as necessarily accurate, and while we
recognize the district court's finding that at least some of the "plain view
documents" satisfied the incriminating character limitation, this still leaves
us with the possibility that many documents were improperly seized under the
plain view doctrine.
---------------- -Footnotes- -------------
n62 See App. Br. I at 37-41. The government's figure is around 50.
--------------- -End Footnotes- ------------
Assuming arguendo that numerous documents not specifically discussed by
district court in its treatment of plain view failed to meet the incriminating
character limitation, n63 we would still not hold that total suppression is
required in this case. Although it certainly would have been preferable to have
had a finding based upon an actual examination of the questioned documents, we
believe here that the reasonableness of the execution of a search can be
determined from the subjective and objective behavior of the participants during
[**86] the search, as revealed by eyewitness testimony. n64 The end result of
the search certainly [*1269] is a legitimate factor to consider in
evaluating its overall reasonableness, but it is not always an indispensable
ingredient of the decision. Thus a good faith attempt to stay within the
boundaries of an inherently broad warrant will support a finding that the search
-- taken as a whole -- was reasonable, even though a majority of documents
seized might turn out not to qualify for inclusion on more leisurely reflection.
We must emphasize at this point, however, that our concern with the agents'
obedience to the limitations of the warrant relates solely to determining
whether a violation of such egregious magniture occurred that all fruits of the
search must be suppressed. See pp. 8-9 supra . If particular documents seized
under the plain view exception had been admitted as evidence-in-chief against
defendants and the admissibility of those documents had been put in issue before
us, an entirely different analysis would be required.
----------------- -Footnotes- -----------------
n63 Indeed our examination of a number of the defense exhibits makes
that the requirement was not met in some cases. See, e.g ., Def. Exhs. 277,
665, 51, 52, 53, 489, 498, 589A, 589B, 621, 620, 488, 500, 469 (all discussed at
App. Br. I at 31-34). [**87]
n64 It is for the district court, of course, to decide in the first
whether these two safeguards — incriminating character and good
faith/inadvertence -- were observed during the search, and that court may employ
any appropriate means to make the determination. For example, an examination
here by the district court of those documents alleged not to have been listed in
the warrant, or an examination of a representative sample thereof, might have
been very helpful in judging whether the incriminating character requirement was
obeyed. The judge might have ordered a study to be performed by an impartial
master, or might have done one himself drawing upon a mutually agreed upon
sample. In this case the trial court relied upon witness testimony to reach his
conclusion, which we find supported by the record. See discussion at Parts II
C(l) & (2) supra .
We also find that the district court acted reasonably in rejecting
counsel's proffered studies purporting to analyze the seized documents. These
studies were found to be unreliable due to various methodological flaws, see
United States v. Hubbard, supra, 493 F. Supp. at 233; also, they might properly
have been rejected because the subjective evaluations involved in them were
performed by persons who might reasonably have been thought to be partial to one
---------------- -End Footnotes- ----------------
conclusion, despite the possibility that some (unspecified) documents
seized under plain view failed the incriminating character requirement, we hold
that the searches of Fifield Manor and Cedars-Sinai were not so unreasonable
that total suppression is required.Nor, so far as we can tell, were any
documents which were admitted into evidence against defendants seized in
violation of the area or plain view limitations discussed above. Hence, by way
of a somewhat different rationale, we affirm the district court's conclusion
that the seized documents in this case need not be suppressed.
III. DISQUALIFICATION OF THE TRIAL JUDGE
Just prior to sentencing on December 4, 1979, the defendants moved
to sections 144 and 455 of Title 28 to recuse the trial judge from the
sentencing process. The principal ground upon which the motion was made was a
claim that the trial judge had deceptively concealed from the defendants the
cause of the security measures taken during the Los Angeles proceedings. n65 In
a memorandum opinion filed on December 14, 1979, the court denied the motion
upon a number of grounds.First, the court held the motion untimely. Second, the
court found that [**89] defendants did not file an affidavit of personal bias
or prejudice as required by 28 U.S.C. @ 144. Finally, the court concluded that
the security measures it took in Los Angeles would not lead a reasonable person
to question the court's impartiality. United States v. Hubbard, Cr. No. 78-401
(D.D.C. December 14, 1979) (memorandum denying motion for evidentiary hearing
----------------- -Footnotes- -----------------
n65 In their motion for recusal, appellants
described the "unusual security
precautions" as follows:
There was a table outside the courtroom with a sign that stated that all
people had to be searched. There was a metal detector outside the courtroom.
A security officer
was observed with a loaded AR-15 automatic rifle in the
courthouse on that day.... The courtroom used in this case was the only one
that had a security table outside it or that had more than the usual number of
marshals in it during that period. The Judge was accompanied at all times in or
about the courtroom by two marshals....
Motion at 4, reprinted in J.A. at 1121.
---------------- -End Footnotes- ----------------
The defendants contest the trial court's conclusions. They argue that their
motion was timely because it was filed within a short time after they discovered
"evidence of deception." In addition, they contend that the judge's concealment
of the reasons [*1270] for the security measures gives "rise to an
inescapable inference of bias against the defendants." Appellant's Brief II at
Although appellants moved pursuant to 28
U.S.C. @ 144 and 28 U.S.C. @ 455,
they have essentially abandoned their argument to the extent it is based on
section 144, see Appellants' Reply Brief II at 2 n.l, probably because their
motion was not accompanied by the affidavit of a party as required by that
section. Appellants correctly note, however, that section 455 does not require
the filing of an affidavit, and, since recusal can be sustained under that
section on the same ground that exists in 144, appellants have lost little by
dropping their section 144 claim.
Section 455, as amended in 1974, contains two
provisions pertinent to this
case. Subsection (a) states:
justice, judge, or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality [**91] might reasonably
Subsection (b)(1) adds:
He shall also disqualify himself in the following circumstances:
Where he has a personal bias or prejudice
concerning a party.... 28 U.S.C. @
Appellants' claim of bias is largely dependent on the following exchange
between court and counsel, which occurred on the first day of the Los Angeles
MR. NUSSBAUM: Your Honor... I
have never been involved in a case before
where there were unusual security measures, so I don't really know why they are
made, and how far they ought to go.
MR. NUSSBAUM: Nothing untoward has happened, as
the Court is aware of, that
we might not be aware of, to explain the security measures?
THE COURT: No.
I will merely say this:
That this Court, along with, as you know, some
of the other judges of my
Court, has been under special security — maybe you don't know it -- under
special security that is unrelated to this case .
That is way some marshals are with me now, and
have been for a considerable
period of time .
Tr. 7/3/79 at 11-12.
Defendants contend that the court's response was untrue in a number of
respects. First, they suggest that neither Judge [**92] Richey nor any of
his colleagues had been under any special security prior to the hearing. Second,
they posit that the marshals had not been with Judge Richey for a considerable
period of time. Third, they submit that the special security was in fact
related to their case.
Having discovered this evidence of deception, the defendants argue that
number of other occurrences took on a different light — they refer to the
"hallway incident," the "first elevator incident," the "second elevator
incident," the denial of jury venire information, the disposition agreement and
the release of documents, and, finally, the sentencing itself. Before turning
to the substance of appellants' claim, we must first consider whether
appellants' motion was timely filed.
trial judge's conclusion that defendants were tardy in bringing their
motion to recuse does not lack support in the record. Their claim that several
incidents suddenly took on a different light once they learned that the trial
judge had misled them concerning the reasons for the security in Los Angeles
appears somewhat disingenuous. Even if we assume that those incidents are
probative of prejudice or bias, we cannot believe [**93] that the dim light
shed upon these matters by the discovery of an alleged falsehood perpetrated by
the judge is sufficient to make the innocent appear evil. Moreover, it would
appear that at least some of the evidence upon which appellants rely to
demonstrate the judge's deception was known by or available to them at the time
of the contested statement. Appellants note that "[a] federal security officer
was posted on the roof of the courthouse with an AR-15 automatic rifle and
binoculars. Counsel were informed that he was [*1271] there because of 'the
Scientology case.'" Appellant's Brief II at 2 n.3 (citing Motion for Evidentiary
Hearing and for Recusal at 4) (J.A. 1121) .
Although section 144 contains an explicit
timeliness requirement, section 455
has none. There is some disagreement over whether section 455 contains an
implicit requirement of timeliness. Compare In re International Business
Machines Corp ., 618 F.2d 923, 932 (2d Cir. 1980) (timeliness requirement) with
SCA Services, Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977) (no timeliness
requirement). In the present circumstances, since the tardiness of appellants'
motion is not entirely free of doubt, we [**94] choose not to reach this
question. Instead, we will address the issue of disqualification as if it had
been raised in a timely fashion by the parties or the court had sua sponte
considered it. We therefore turn to an examination of the requirements imposed
by the recusal statute.
Now that section 455 contains a provision calling for disqualification
"proceeding in which [a judge's] impartiality might reasonably be questioned,"
n66 we join our sister circuits in concluding that a showing of an appearance of
bias or prejudice sufficient to permit the average citizen reasonably to
question a judge's impartiality is all that must be demonstrated to compel
recusal under section 455. n67 A showing of the appearance of bias or prejudice
would seem necessarily to raise a reasonable question concerning the judge's
impartiality. We must therefore test appellants' motion on the basis of whether
or not they have established an appearance of bias or prejudice, as judged by an
@ 455(a). Prior to its amendment
in 1974, section 455
provided in full:
Any justice or judge of the United States shall disqualify himself in
case in which he has a substantial interest, has been of counsel, is or has been
a material witness, or is so related to or connected with any party or his
attorney as to render it improper, in his opinion, for him to sit on the trial,
appear, or other proceeding therein. [**95]
n67 See United States v. Mirkin, 649 F.2d 78 (1st Cir. 1981); In re
International Business Machines Corp., 618 F.2d 923, 929 (2d Cir. 1980); Rice v.
McKenzie, 581 F.2d 1114 (4th Cir. 1978); Potashnick v. Port City Constr. Co.,
609 F.2d 1101, 1111 (5th Cir. 1980), cert, denied, 101 S. Ct. 78 (1981); Roberts
v. Bailar, 625 F.2d 125, 129 (6th Cir. 1980); SCA Servs., Inc. v. Morgan, 557
F.2d 110 (7th Cir. 1977); United States v. Poludniak, No. 80-2133 (8th Cir. Aug.
14, 1981); Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981); United States v.
Ritter, 540 F.2d 459 (10th Cir.), cert, denied, 429 U.S. 951 (1976).
We note initially that section 455 gives no guidance concerning
n68 Under section 144, the judge must determine the legal sufficiency of the
affidavit required by that section accepting as true the facts stated with
particularity therein. If those facts demonstrate bias, the judge must recuse
himself.Section 455, since it imposes a duty directly upon the judge to evaluate
his own conduct, requires no affidavit, and as noted supra, appellants did not
file one in the district court. [**96] Their motion was accompanied by a
memorandum of law, which contained allegations of fact that were verified by one
of the defense counsel. We must decide how a trial judge should treat such a
motion made for recusal pursuant to section 455.
C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE & PROCEDURE @ 3550
(1975); Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.
CHI. L. REV. 236, 259 (1978).
Preliminarily, there is no support for the
position that the facts alleged in
the papers submitted by a person relying on section 455 must in every case be
accepted as true, whether the papers be a verified memorandum or are in some
other form. The very fact that section 455 is addressed directly to the judge
makes it evident that
some evaluation by the court of the facts giving rise to
the motion is anticipated in most cases. The trial court may, of course, at its
option transfer the matter to another judge for decision. n69 Further, it is
well [*1272] within the trial court's discretion [**97] as well as
desirable in some cases to hold a hearing. The appropriate procedure, then, may
depend upon the nature of the allegations made. n70 In this case the motion for
recusal, alleging an appearance of bias created by courtroom security measures,
was denied without a hearing by the trial judge to whom the case was assigned.
Under these circumstances, we believe the proper course on appeal is to accept
as true the facts stated with particularity in appellants' verified recusal
motion. Viewing the issue in this light, we nonetheless reject appellants'
argument for recusal.
n69 Appellants do not argue that the trial judge erred by refusing to
transfer the motion for recusal to another judge. In United States v. Haldeman,
559 F.2d 31 (D.C. Cir. 1976) (en bane), cert, denied, 431 U.S. 933 (1977), this
court held that under section 144 and predecessor section 455 the transfer to
another judge for decision is "at most permissive." Id . at 131. See also In re
Corrugated Container Antitrust Litigation, 614 F.2d 958, 903 n.9 (5th Cir.),
cert, denied, 101 S. Ct. 244 (1980).
n70 Allegations regarding actual extrajudicial conduct or involvements,
example, may typically present a more compelling case for a hearing than a
motion premised on rulings or comment made during actual courtroom proceedings
which are urged as evidence of bias or prejudice stemming from an extrajudicial
---------------- -End Footnotes- ----------------
Appellants recognize that disqualification based on prejudice is
only if the alleged prejudice stems from an extrajudicial source. n71 Because
every instance upon which appellants rely to demonstrate the trial judge's bias
is either a judicial ruling or some other conduct that occurred during the
judge's fulfillment of his judicial duties, we are tempted to reject appellants'
argument out of hand. Recognizing the legal requirement of an extrajudicial
source, however, appellants have attempted to create an inference of such fact
on the basis of courtroom conduct. n72 They submit first that the security_
precautions taken during the Los Angeles proceedings were related to the
Scientologists. n73 Second, they offer the observation that security
precautions are usually invoked based upon fear of bodily harm. n74 Appellants
then argue that since there is nothing in the record to support the judge's fear
of any of the defendants, that fear must be extrajudicial in origin. The final
link in this chain of inference is that a deceptive concealment of the reasons
for the security evidences prejudice against the defendants. Thus, from an
allegedly deceptive statement made concerning [**99] courthouse security,
defendants draw conclusions both of prejudice and an extrajudicial source of
that prejudice.We are unable to accept either conclusion.
n71 United States v. Haldeman, 559 F.2d 31,
132-34 & n.297 (D.C. Cir. 1976)
(en bane), cert, denied, 431 U.S. 933 (1977).
For a long time before enactment of new @ 455
(a) in 1974, the judicial
understanding of @ 14 4 and old @ 4 55 was that they were to be confined in
operating to extrajudicial conduct or conditions.... Nothing we have observed
in the legislative history of new @ 455(a) suggests that this construction
should be overturned. Absent clearer guidance as to the congressional intent,
we agree.... The appearance-of-impropriety standard in terms summons a
disqualification, not merely when the judge's impartiality might somehow be
questioned, but only when it may reasonably be questioned. We think
reasonableness of the challenge must take due account of the effect which its
acceptance will have on the judicial process. So drastic would be the impact
that we are unwilling to ascribe to ethical and legislative formulators of that
standard a purpose to direct it toward judicial rulings on questions of law. 559
F.2d at 133 n.297. See In re International Business Machines Corp., 618 F.2d
923, 929 (2d Cir. 1980); United States v. Grinnell Corp., 384 U.S. 563, 583
n72 Appellants note correctly that particular judicial rulings can be
evidence of an extrajudicial bias or prejudice. Appellants' Brief II at 32.
n73 Shortly before oral argument in this court, appellants moved to
the record on appeal with what they described as "concrete evidence confirming
the trial court's deception and bias." Appellants' Reply Brief II at 4 n.3. This
motion was granted, but we have no occasion to consider the strength of these
submissions, since we are accepting as true the facts stated in support of
appellants' motion for recusal, which facts included a claim that the trial
court deceptively concealed the reasons for the Los Angeles security.
n74 Security precautions, however, may also be
taken to avoid disruption of
court proceedings. See, e.g ., Lacaze v. United States, 391 F.2d 516, 520-21
(5th Cir. 1968) .
---------------- -End Footnotes- ----------------
First, defendants do not persuade us that the source of the judge's fear
extrajudicial. We disagree with defendants that the record contains nothing
that might cause the judge to fear for his safety, for the safety of government
[**101] witnesses, or for the orderliness of the proceedings. The indictment,
inter alia, charged the defendants with an unlawful conspiracy to steal
government documents by illegal entry into federal offices and by a conspiracy
to obstruct justice by subornation of prejury before the grand jury. The
Disposition Agreement led to judgments that the defendants were guilty of a
conspiracy to obstruct justice with respect to their involvement in the illegal
entries. The overt acts acts alleged as evidence of the conspiracies included
handcuffing, gagging, arresting and kidnapping Meisner and imprisoning him under
guard when it appeared he was on the brink of surrendering to federal
authorities, and harboring a fugitive from justice. These are not placid
crimes. Substantial force was used in confining Meisner.In a letter of June 3,
1977, Mary Sue Hubbard told Henning Heldt "to utilize resources to figure out a
way to defuse [Meisner] should he turn traitor." Indictment P14 (45) (J.A. 140).
The word "defuse" is not defined, but in light of the hostile acts already
directed against Meisner, a reasonable interpretation could include severe
bodily injury. Indeed, the search of Scientology's [**102] Washington
headquarters turned up a loaded gun. United States v. Hubbard, 4 93 F.Supp.
209, 232 n.20 (D.D.C.
1979). Under these extreme facts, it was entirely
reasonable to take the security precautions that were taken and we refuse to
second-guess the district judge and the Marshal's service in their decision to
institute security. Consequently, we are unable to agree with defendants that
the basis for institution of security must necessarily have been extrajudicial.
Indeed, substantial security measures, only slightly less exacting, have been
permanently employed for a considerable period of time at the United States
Courthouse in Washington, D.C. where Judge Richey regularly hears cases.
Further, even if we were to accept all that
appellants would have us assume -
- that the judge misrepresented the facts when he said the security was
unrelated to the Scientology case and that the source of the judge's fear could
only be extrajudicial — we could not accept appellants' position that this
necessarily evidences prejudice against defendants. Scientology's officers and
undoubtedly some of its members were highly agitated against the government, as
is proved by the widespread organization [**103] of the conspiracy and the
extreme measures that the conspirators took in an effort to achieve the unlawful
objectives. When an organization or its leaders are involved in judicial
proceedings, security measures are properly implemented to protect against an
overzealous rank and file member of the organization who overreacts to the
action taken against his leaders or institution. n75 If the judge had
reasonable grounds to fear that appellants or some isolated member of the Church
might be carried away by the passion of the moment and take some rach action, he
had no obligation to tell them or their counsel that the security was imposed
for that reason. Tight security measures, which as stated above are routine in
the United States District Courts in the District of Columbia, are, for the most
part, irrelevant to the merits of a criminal prosecution, especially in a
nonjury suppression hearing. Indeed, the effectiveness of security measures may
be diminished if their existence or purpose is disclosed.
n75 See, e.g ., People v. Remiro, 89 Cal. App.
3d 809, 153 Cal. Rptr. 89', 115
(Cal. App.) (photography, fingerprinting and search of spectators at trial of
Symbionese Liberation Army member), cert, denied, 444 U.S. 876, 937 (1979).
---------------- -End Footnotes- ----------------
The question posed, then, is the relevance to the question of prejudice
judge's concealment of a fact which has no bearing on the merits of the case. An
appellate court cannot approve of judicial deceit, but the ultimate issue faced
by this court is the probative value of an alleged deception on the issue of
prejudice.Even if it occurred, the concealment, as it is here alleged, is not
sufficient to raise the appearance of [*1274] prejudice in the mind of a
reasonable person who is familiar with all the facts. From all the
circumstances it appears that a reasonable explanation of the judge's statement
is that it was an inartful attempt to tell appellants that the security measures
were a matter for the court and the Marshal to determine. The court also may
have been motivated to protect the defendants from the damaging publicity that
might have resulted from a statement by the court as to their numerous illegal
acts as disclosed by the court file. In any event, in our judgment appellants
have not carried their burden of establishing the appearance of prejudice.
Our determination that appellants' argument concerning the judge's
regarding security is unavailing [**105] obviates any extended discussion of
the other incidents claimed to evidence prejudice. The elevator incidents and
the hallway incidents suggest little if anything about prejudice. The reliance
upon a number of rulings made by the judge is clearly misplaced: not only do the
rulings appear unexceptionable, they are incapable of supporting a finding of
extrajudicial, personal prejudice.
Appellants also suggest that the trial court's
failure to assign the case to
another judge for sentencing after having heard the proceedings to enforce the
Disposition Agreement required recusal under section 455(b)(1), which makes
"personal knowledge of disputed evidentiary facts concerning the proceeding"
grounds for disqualification. The short answer to this argument is that
knowledge gained through the court's judicial role is not "personal" knowledge
within the meaning of the statute. United States v. Winston, 613 F.2d 221 (9th
Cir. 1980).The conclusion must be the same if the judge's knowledge is said to
create an appearance of prejudice under section 455(a). In re Corrugated
Container antitrust Litigation, 614 F.2d 958, 965 (5th Cir.), cert, denied, 101
S. Ct. 244 (1980); United States v. [**106] Lyon, 588 F.2d 581 (8th Cir.
1978), cert, denied, 441 U.S. 910 (1979); United States v. Cepeda Penes, 577
F.2d 754, 757-58 (1st Cir. 1978); United States v. Wolfson, 558 F.2d 59 (2d Cir.
Appellants' reliance upon Fed. R. Crim. P. 11(e)(1), which enjoins the
trial judge from participating in discussions regarding plea agreements, is not
persuasive. That rule seeks to avoid the appearance of prejudice that can arise
where a judge might be thought to be pressuring a defendant into accepting a
particular agreement. See Advisory Committee Notes to 1974 Amendment of Fed. R.
Crim. P. 11. Cf .Longval v. Meachum, 651 F.2d 818 (1st Cir. 1981) (state court
denied due process by urging plea bargain), petition for cert, filed, 50
U.S.L.W. 3131 (Sept. 8, 1981) (No. 81-261). The prejudice claimed here,
however, is one that existed after the enforcement proceedings, if ever. In any
event, "the mere fact that a judge has participated in plea discussion... does
not provide a reasonable basis for questioning a judge's impartiality." United
States v. Cepeda Penes, 577 F.2d 754, 758 (1st Cir. 1978).
---------------- -End Footnotes- ----------------
We are mindful of the counsel given by the Senate
regarding amended section 455:
[I]n assessing the reasonableness of a challenge
to [a judge's] impartiality,
each judge must be alert to avoid the possibility that those who would question
his impartiality are in fact seeking to avoid the consequences of his expected
adverse decision. Disqualification for lack of impartiality must have a
reasonable basis. Nothing in this proposed legislation should be read to
warrant the transformation of a litigant's fear that a judge may decide a
question against him into a "reasonable fear" that the judge will not be
impartial. Litigants ought not to have to face a judge where there is a
reasonable question of impartiality, but they are not entitled to judges of
their own choice.
S. Rep. No. 93-419, 93d Cong., 1st Sess. 5
(1973) (emphasis in original). The
trial judge properly determined that he was under no obligation to recuse
himself from this case.
IV. DISQUALIFICATION OF THE PROSECUTORS
Shortly before the suppression hearing defendants moved to disqualify
entire office of the United States Attorney for the District of Columbia from
prosecuting this [**108] [*1275] case on the grounds (1) that the office
had a disqualifying emotional interest in the outcome of the case since it was
the "victim" of one of the crimes alleged in the indictment and (2) that one of
the United States Attorneys had been employed by a law firm which represented
one of the defendants. The district court, in a memorandum and order filed July
30, 1979, denied defendants' motion. United States v. Hubbard, Cr. No. 78-401
(D.D.C. July 30, 1979) (memorandum opinion denying motion to disqualify
prosecutors) (J.A. 269).
Initially, we are not persuaded by appellants' argument that because the
indictment charged some of the defendants with illegally entering the office of
a member of the United States Attorney's office all the assistants in the office
had a disqualifying interest in this prosecution. Appellants mistakenly contend
that the United States Attorney's office was the "victim;" to the extent that a
"victim" exists in such a crime, it is the United States of America. As the
district court noted in denying defendants' motion, "[i]n this case, none of the
Assistant United States Attorneys actually prosecuting the case has been a
victim of any of the [**109] charges in the indictment. Further, none of the
government attorneys has shown any special emotional stake in the outcome of the
case." Id . (J.A. at 273). The illegal entry into one of the offices in a
large United States Attorney's office would require facts beyond those present
here to disqualify all of the lawyers in the office from prosecuting the
Appellants have apparently abandoned their
argument that the Assistant United
States Attorney's brief employment with one of the law firms that represented a
defendant constituted a disqualifying interest. In its place they now contend
for the first time that they were denied due process because two prosecutors
were defendants in a civil action filed by the Church of Scientology ten days
after the search of Scientology's offices in Los Angeles, which suit "alleged
that the raids of July 8 were conducted in bad faith, with the intention of
violating [Scientology's] constitutional rights." Appellants' Brief II at 17.
See Church of Scientology v. Linberg, No. CV-77-2654 (C.D.Cal., filed July 18,
1977) (J.A. 1192).
Because of the failure to raise the matter before the district court we
that the issue is waived [**110] on this appeal. Kassman v. American
University, 546 F.2d 1029, 1032 (D.C. Cir. 1976) (per curiam); Miller v. Avirom,
384 F.2d 319, 321-23 (D.C. Cir. 1967). This is not a court of original
jurisdiction. We recognize that this principle must give way whenever justice
so requires, id ., but our analysis of the record does not indicate that this is
such a case. We take this opportunity, however, to discuss the due process
concerns raised by appellants' motion. We conclude that, whether the supposed
interest of the prosecutors in such a situation is characterized as a pecuniary
one or as a personal or "emotional" one, the due process argument is without
merit on the facts of this case.
It is of course improper for a prosecutor to participate in a case when
has a pecuniary interest in the outcome.18 U.S.C. @ 208 (1977). See Sinclair v.
Maryland, 278 Md. 243, 363 A.2d 468 (1976); People v. Jimenez, 187 Colo. 97, 528
P.2d 913 (1974); State v Detroit Motors, 62 N.J. Super. 386, 163 A.2d 227 (N.J.
Super. 1960). The threat posed to a prosecutor's interests in his personal and
professional reputation by a bona fide civil action alleging bad faith in the
performance of official duties [**111] should give rise to a similar concern.
See, e.g., State v Cox, 246 La. 748, 16 So.2d 352, 357 (1964); Oregon State Bar
Comm. on Legal Ethics, Opinions, No. 386 (1978). See also 28 C.F.R. @ 45.735-
13(a) (1980). The conflict in such cases arises because a public prosecutor, as
the representative of the sovereign, must "seek justice — to protect the
innocent as well as to convict the guilty." Pennsylvania v. Dunlap, 474 Pa. 155,
377 A.2d 975, 976 (1977) (Roberts, J., dissenting from affirmance by an equally
divided court). See Berger v. United States, 295 U.S. 78, 88-89 (1935); ABA
Code of Professional Responsibility EC 7-13 (1980). Our system of justice
accords the [*127 6] prosecutor wide discretion in choosing which cases
should be prosecuted and which should not.If the prosecutor's personal interest
as the defendant in a civil case will be furthered by a successful criminal
prosecution, the criminal defendant may be denied the impartial objective
exercise of that discretion to which he is entitled.
The government contends that prosecutors cannot be disqualified when
a defendant because defendants could then remove whichever prosecutor they
please simply by suing [**112] him.n77 The defendants contend that this is
not so because all acts of a prosecutor taken in his quasi-judicial capacity
enjoy the protection of absolute immunity, see Imbler v. Pachtman, 424 U.S. 409
(1975), and that therefore any suit complaining of an action taken in a
prosecutor's quasi-judicial capacity would be frivolous and non-disqualifying.
In contrast, when a prosecutor actually participates in a search he is engaging
in investigative rather than quasi-judicial activity, see Marrero v. City of
Hialeah, 625 F.2d 499 (5th Cir. 1980), cert, denied, 101 S. Ct. 1353 (1981), and
therefore loses his absolute immunity from suit if the actually participates in
a search, n78 although retaining a qualified, good-faith immunity. n79
n77 This contention would apply in many cases, and may
have some application
here, but we do not decide this phase of the case based on this argument.
n78 See Butz v. Economou, 438 U.S. 478 (1978);
Marrero v. City of Hialeah,
625 F.2d 499 (5th Cir. 1980), cert, denied, 101 S. Ct. 1353 (1981).
n7 9 Id .
There is no showing here that the prosecutors did not act in good
---------------- -End Footnotes- ---------------
This distinction in principle between quasi-judicial and investigative
functions persuades us that a criminal defendant cannot routinely remove
prosecutors he dislikes, or fears, by suing them. Unless the defendant can
complain of some action taken by the prosecutor outside of his quasi-judicial
capacity, such suit will generally be barred by absolute immunity.As we held
[AJbsolute immunity does not extend to a prosecutor
engaged in essentially
investigative or administrative functions. Halperin v. Kissinger, 606 F.2d
1192, 1208 (D.C. Cir.
1979), aff'd by an equally divided Court per curiam, 49
U.S.L.W. 4782 (June 23, 1981); Briggs v. Goodwin, 569 F.2d 10, 21 (D.C. Cir.
1977), cert, denied, 437 U.S. 904 (1978); Apton v. Wilson, 506 F.2d 83, 93 (D.C.
Cir. 1974). However, when a prosecutor is engaged "in initiating a prosecution,"
his absolute immunity from civil suit is firmly established. Imbler v. Pachtman
,... 424 U.S. at 431.
v. Powell, No. 80-1331, slip op. at 6-7 (D.C. Cir. July 24, 1981)
(footnote omitted). The distinction serves the public interest in the
administration of criminal justice. Most prosecutors participate in searches to
some extent [**114] by drafting applications for search warrants and giving
legal advice to agents conducting searches, and such practice is certainly
encouraged. A loose disqualification rule based on legal advice rendered in an
official capacity could disrupt the orderly process of criminal prosecutions
without rendering any corresponding benefit to the public.
we thus recognize in principle the possibility of a disqualifying
conflict arising out of a prosecutor's status as a civil defendant, we are
nevertheless of the opinion that any conflict of interest that might have
existed because two of the assistants here involved were made defendants in an
action brought by Scientology based upon participation in an allegedly illegal
search and seizure did not amount to a due process violation that would require
vacation of appellants' sentences. Given the need to promote the appearance of
justice, a trial court on timely motion should disqualify a prosecutor from
participating in a criminal action when he has a personal conflicting interest
in a civil case. n80 The [*1277] question we face here, however, is the
very different one of what should be done when defendants have failed to move
[**115] to disqualify on the ground of a conflict of interest, n81 yet assert
a denial of due process on appeal. See Magjuka v. Greenberger, 46 A.D.2d 867,
362 N.Y.S. 2d 162, 163 (1974). We must reconcile the governmental interests in
conserving judicial and prosecutorial resources n82 and in preserving the
appearance of impartiality with the interest of the defendant in receiving fair
and evenhanded treatment from his accusers. We believe the best resolution is
to require in such circumstances that the defendants prove actual prejudice.
Cf.United States v. Bird -man, 602 F.2d 547, 559-60 (3d Cir. 1979) (actual
prejudice standard applied where prosecutor testified before grand jury), cert,
denied, 444 U.S. 1032 (1980). With regard to an appearance of conflict on the
part of the prosecution, on appeal a defendant has cause to complain only if he
was prejudiced. See People v. poplis, 30 N.Y.2d 85, 281 N.E.2d 167, 330
N.Y.S.2d 365 (1972). To the extent he might receive relief from a prosecution
solely on a showing of potential prejudice, he would be the undeserving
beneficiary of a rule that attempts to promote the public good. In our judgment
the strong governmental interest in expedient [**116] proceedings justifies a
rule that gives the defendants on the facts of this case relief only if they can
demonstrate prejudice; otherwise, the convictions will stand. n83
n80 The potential conflict of interest that might result from a personal
civil suit filed against an Assistant United States Attorney (AUSA) by a
defendant in a criminal case for acts undertaken by the AUSA in his official
capacity in the criminal matter would have to be very strong before
disqualification would be justified. It could not be justified by mere
inference from the filing of the suit but would require proof, by clear and
convincing evidence, of a prima facie case of misconduct on the part of the
n81 Although it is apparent that appellants did
not argue in their May 8,
1979, motion to disqualify that the prosecutors named in the civil suit had a
conflict of interest, they contend on appeal that "[t]he district court was made
fully aware that prosecutor Banoun, apart from being a witness to the search,
was also a defendant in a pending civil suit arising from the search."
Appellants' Brief II at 22. Appellants point to the transcript of the
suppression hearing on July 16, 1979, when Assistant United States Attorney
Banoun stated, "I am one of the defendants." Tr. 7/16/79 at 9. This statement
was made during discussion concerning whether statement made by some of the
agents who participated in the search to government lawyers in preparation for
their defense in the civil action should be made available to the appellants.
Under some circumstances, the conflict of interest will be so strong
error might result if the trial court fails to disqualify a prosecutor from
participation in a case when it learns of the facts giving rise to a conflicting
interest. This, however, is not such a case.The alleged conflict of interest
brought about by the prosecutors being named as defendants in the civil suit for
acts taken in their official capacity is not at all apparent, as evidenced by
the fact that appellants never relied on it as a basis for disqualification.
n82 Cf .In re April 1977 Grand Jury Subpoenas, 584 F.2d 1366, 1369 (6th
1978) (en bane ) (denial of disqualification motion not appealable because delay
could "exert unwarranted influence in the government's choice of its prosecuting
attorney"), cert, denied, 440 U.S. 934 (1979).
n83 This case, involving an alleged conflict of interest on the part of
prosecution, is to be distinguished from cases in which the burden of showing
actual prejudice is typically not imposed. The cause for concern here is not on
a par with that present in a case where the defendants' own attorney is laboring
under a conflict of interest, see Cuyler v. Sullivan, 446 U.S. 335 (1980), or
where he is tried before a judge with an interest in the result, see Tumey v.
Ohio, 273 U.S. 510 (1927). In such cases, the rights at stake are so fundamental
that even if no actual prejudice is shown, reversal is required. United States
v. Decoster (Decoster III ), 624 F.2d 196, 201 (D.C. Cir. 1979) (en bane ).While
the prosecutor's duty "to seek justice," ABA Code of Professional Responsibility
EC 7-13, cannot be minimized, the less fundamental nature of the threat to
defendants, coupled with the government's responsibility to administer justice
effectively on the public's behalf, makes actual prejudice the appropriate
---------------- -End Footnotes- ----------------
Appellants have made no credible claim of actual prejudice based on the
prosecutors' alleged pecuniary or personal interest in the outcome of this
prosecution. In arguing that the pending civil suit produced a prejudicial
conflict of interest in the prosecution, they argue primarily that "dismissal
[*1278] of the civil suit against Messrs. Banoun and Schuelke [was made] a
bargaining chip in the disposition negotiations.... The government even sought to
withdraw from an agreement it had reached with the defense on September 23, 1979
that did not include dismissal of the civil suit against Mr. Banoun and
substitute for it an agreement that provided for such dismissal." Appellants'
Brief II at 55-56. Appellants claim that this conduct evinces an effort by the
prosecutors to manipulate the criminal case to their advantage in the civil
matter. We note in passing that these same facts would equally well support the
defendants, by initiating a highly questionable lawsuit, were
attempting to create for themselves a bargaining chip in order to obtain more
favorable disposition of the criminal charges in the indictment.In any event,
the argument need not detain this [**119] court long. First, the trial court
enforced the agreement reached on September 23, 1979, which did not contain any
provisions that required Scientology to dismiss its claim against the
prosecutors and other government personnel. Second, the Acting United States
Attorney did not raise the issue of the civil suits until after September 23rd,
the date upon which the court found the parties had agreed to the disposition it
enforced. Relief from the civil actions was proposed only on September 26, as
defense counsel apparently conceded shortly thereafter. See Transcript of
Settlement Conference, Oct. 2, 1979, at 52. Finally, it appears, as the
government suggests, that lead defense counsel had previously expressed a desire
for a complete disposition:
"Mr. Hirschkop: ... If I could wrap it up once and for all, and
not have to
go through repeated prosecutions, that is one thing...." (Tr. 9/23/79 at 24-25)
(emphasis added) (J.A.474). See Govt. Br. at 144 n.168. We find, in short,
absolutely no support for the claim that the criminal charges were either
brought or prosecuted in a particular fashion in order to influence defendants
to dismiss their civil suit. The government had [**120] previously acquired,
as the affidavit for the search warrant fully supports, very substantial
evidence of monstrous criminal offenses which no responsible United States
Attorney could refuse to prosecute. The search warrants were requested to
obtain corroborative evidence of crimes that were fully articulated in the
We accordingly affirm the district court's refusal to disqualify all
prosecutors in the office of the United States Attorney for the District of
Columbia, and reject defendants' new argument that the participation in this
prosecution of prosecutors sued by Scientology for their official role in the
Los Angeles searches resulted in a denial of due process. Our disposition of
the search and seizure issue, supra, also disposes of the claim that the
government or the prosecutors participated in an illegal search.
ALLEGED VIOLATION BY THE GOVERNMENT OF THE AGREEMENT FOR THE
DISPOSITION OF HUBBARD'S CASE
After long negotiations the government
submitted to the defendants a proposed
agreement for the disposition of the case. Under the agreement the defendants
would be found guilty by the District Court on a stipulated record.
Specifically, [**121] defendant Hubbard was to be found guilty on Count
Twenty-three of the indictment. Paragraph 5 of the Agreement provided:
government retains the right to allocute on matters in any fashion it
chooses as to all defendants except the defendant Hubbard. As to the defendant
Hubbard, the government agrees to advise the Court as follows: "the government
takes no position and is making no request on the matter of sentence with
respect to the defendant Hubbard." It is understood that Mrs. Hubbard through
her counsel will make no statement in allocution concerning the facts of the
case. It is further agreed that as to any defendant, including Mrs. Hubbard,
the government may dispute any statements of fact on any matter with which it
has disagreement.... [*1279]
September 23, 1979 at 5 P.M. was set as the
deadline for acceptance of the
agreement by the defendants. Subsequently, the government contended that the
had failed to accept, so the agreement did not become effective. The
defendants filed a motion for an order enforcing the agreement, and requested an
evidentiary hearing on the matter. The court conducted such a hearing and on
October 8, 1979 granted [**122] the defendants' motion. On October 16, 1979
the government filed a motion for reconsideration of the court's order directing
enforcement.The government's motion was denied.
Invoking Santobello v. New York, 404 U.S. 257 (1971), Hubbard now
that by a statement in its motion for reconsideration the government violated
paragraph 5 of the disposition agreement, by taking the position "that Mrs.
Hubbard should receive a jail sentence, especially since she was at the head of
the conspiracy." Analysis of Hubbard's complaint requires consideration of the
context in which the government's statement was made.
At the hearing on the
motion to enforce the disposition agreement Hubbard's
counsel, Mr. Boudin, testified that the government's position was that Hubbard
should not receive a jail sentence. Thus Mr. Boudin testified:
Q Well, you did urge the court to continue the case on Friday, the 21st?
A I think I have consistently urged the court
to continue this case in the
hope that we would achieve the result of an agreement, or to enforce an
agreement which I thought we had reached.
As far as I was concerned, I, personally had only one objective: to carry
out what I thought [**123] was the government's position that it did not want
Mrs. Hubbard to go to jail.
Q Now, Mr. Boudin —
A And that is all I had personally in
mind. I was not concerned about the
criminal prosecution of Mrs. Hubbard elsewhere.
I was not really concerned about testimonial immunity, or the problem.
My real concern was only one thing: to make it clear
to the court that the
government did not want Mrs. Hubbard to go to jail.
Q Mr. Boudin, wasn't it, in fact, the government's
position that Mrs. Hubbard
should go to jail, but that that would be left up to the court?
A Absolutely not. Absolutely
not. The government told me in Los
that it did not expect that the court would put Mrs. Hubbard in jail.That was an
unequivocal statement made --
Q You are saying —
A (Continuing) — by Mr. Banoun and by Mr. Reardon.
And the government repeated in the meetings of the week of September
that it did not want to say explicitly that it did not want Mrs. Hubbard to go
to jail, because that would be contrary to a policy position.
But that it did not expect the court to put Mrs. Hubbard in jail.
Q Mr. Boudin, that is quite different from
saying that the government stated
[**124] it did not want Mrs. Hubbard to go to jail, isn't it?
A No, I think the government stated that it did
not want Mrs. Hubbard to go
to jail, because it recognized in Los Angeles and here one thing that was
indisputable, and that I told his honor in the presence of Mr. Banoun at the
bench: Namely, Mrs. Hubbard's ill health.
10/5/79 at 121-24) Counsel for Heldt and Snider, Mr. Hirschkop, also
sounded this theme:
The government kept making it clear that they
did not care to have Mrs.
Hubbard incarcerated, but they did not want to make that known to the court.
The prosecution agreed they were not anxious to
see Mrs. Hubbard go to jail.
[*1280] That was not their position. They just didn't want to say that to the
(Tr. 10/2/79 at 13, 20)
In his testimony at the hearing Assistant United States Attorney Banoun
denied that the prosecutors had said they did not want Mrs. Hubbard to go to
We indicated that we would, that our office
would under no circumstance enter
into any agreement which bound any court to a pre-plea agreement, that there
would be no incarceration, that our office just didn't do it and we didn't
believe any of the judges in this [**125] court did.
Q Mr. Banoun, did you at any time tell Mr.
Boudin that you were opposed to or
did not want his client, Ms. Hubbard, to go to jail?
A Absolutely not.
Q Did you —
A To the contrary, I would say.
Q Excuse me?
I would say that I never said that, that I told him when we were
negotiating in LA it was quite possible she may not go to jail; on the other
hand, it's quite possible she may.
We did not — I said we could not bind the judge in any way. It was totally
up to the judge, but that we would not stand up and take a position of no jail
because that would not be consistent with our theory of the case or the United
States' position or the best interests of justice.
Q Did you at any time tell Mr. Boudin that you didn't
expect the Court to
send his client to jail?
A Absolutely not.
(Tr. 10/5/79 at 210p, 210q)
At the instance of the defendants the District Court ruled that because
United States Attorney Rauh had cross examined a witness at the hearing, he
would not testify concerning the government's position.
In proposed findings of fact on the motion to enforce the disposition
agreement, filed, on September 30, 1979, the defendants stated that [**126]
during the negotiations on the agreement
Defense counsel argued strenuously for inclusion of a statement that
government does not seek Mrs. Hubbard's incarceration." Defense counsel pointed
out that from the beginning the other defendants had expressed the willingness
to sacrifice their own personal interests in return for favorable consideration
for Mrs. Hubbard, and that the government's own formulation indicated a
conclusion that the interests of justice did not demand the incarceration of
Mrs. Hubbard. The government lawyers said that for "policy" reasons only, they
were unwilling affirmatively to state the latter proposition on the record,
although several of the prosecutors did feel that the interests of justice did
not require Mrs. Hubbard's incarceration.
J.A. at 998.
In its motion of October 15, 1979 for
reconsideration of the order enforcing
the agreement the government stated:
The defense has maintained in its motion and during the hearing that the
government felt that the interests of justice did not require Mrs. Hubbard's
incarceration. This is not so. Mr. Rauh would have testified that he believed
that Mrs. Hubbard should receive a jail sentence, especially [**127] since
she was at the head of the conspiracy. The government agreed not to allocute as
to Mrs. Hubbard because this issue was holding up a possible disposition and
because the government believed that the Court would recognize that Mrs. Hubbard
was at the top of the conspiracy and impose the appropriate jail sentence.
J.A. at 507 (footnotes omitted). Hubbard views this statement as an improper
and prejudicial attempt by the government to evade its promise to make no
request with respect to a sentence in her case.
Considering the government's statement in context we think it is not
susceptible of the interpretation placed upon it by Hubbard. The statement was
a direct response to the testimony of Hubbard's counsel that [*1281] the
government "did not want Mrs. Hubbard to go to jail." That statement constituted
an anticipatory allocution on behalf of Hubbard. Believing as it did that the
statement was a misrepresentation of its position the government was under a
duty to dispute it. In so doing the government properly availed itself of the
proviso in the settlement agreement "that as to any defendant, including Mrs.
Hubbard, the government may dispute any statements of [**128] fact on any
matter with which it has disagreement." Had the government failed to challenge
defense counsel's representation the court in passing sentence would have acted
on a factual premise that in the government's view was false; and no disposition
agreement could require the government to permit that to happen.
The government did not violate the disposition agreement.
VI.THE REFUSAL TO GRANT TESTIMONIAL IMMUNITY TO
KEMBER A. Hubbard's Motion
for "Use" Immunity for Kember
Mary Sue Hubbard, second only to her husband L.
Ron Hubbard in the hierarchy
of the world-wide Church of Scientology, was the first-named and principal
defendant in the conspiracy count and associated offenses charged in the
indictment. She held the title of "Controller" and Commodore Staff Guardian
(CSG), and had duties under her husband which included supervision of the
Offices. J.A. at 927. Shortly before the scheduled trial date, she
moved the court, after the government denied a similar request, for an order
pursuant to 18 U.S.C. @ 6002 (1970) n84 granting testimonial ("use") immunity
to Jane Kember so that Kember could offer allegedly "exculpatory" testimony in
behalf of Mrs. Hubbard. [**129]
----------------- -Footnotes- -----------------
n84 The use immunity statutes provide:
@ 6002. Immunity generally
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 —
(1) a court or grand jury of the United States,
(2) an agency of the United States, or
(3) either House of
Congress, a joint committee of the two Houses, or a
committee or a subcommittee of either House,
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 any criminal case, except a prosecution for perjury, giving a
false statement, or otherwise failing to comply with the order.
@ 6003. Court and grand jury proceedings
(a) In 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 or a grand jury of the United States, the United States
district court for the judicial district in which the proceeding is or may be
held shall issue, in accordance with subsection (b) of this section, upon the
request of the United States attorney for such district, an order requiring such
individual to give testimony or provide other information which he refuses to
give or provide on the basis of his privilege against self-incrimination, such
order to become effective as provided in section 6002 of this part.
(b) A United States
attorney may, with the approval of the Attorney General,
the Deputy Attorney General, or any designated Assistant General, request an
order under subsection (a) of this section when in his judgment --
(1) the testimony or
other information from such individual may be necessary
to the public interest; and
(2) such individual
has refused or is likely to refuse to testify or provide
other information on the basis of his privilege against self-incrimination.
---------------- -End Footnotes-
Jane Kember, the second-named defendant in the indictment, which
her as having "the title of 'Guardian World-Wide' (GWW) and head[ing] the daily
operation of all Guardian's Offices, reporting directly to L. Ron Hubbard and
Mary Sue Hubbard." Indictment P5 (J.A. 109).She succeeded Mrs. Hubbard."
Indictment P5 (J.A. 109). She succeeded Mrs. Hubbard as the person responsible
for the day-to-day activities and supervision of the Guardian Office.Affidavit
of Stephen M. Bird at 11 (J.A. 927). Kember is one of the principal defendants
in the case. At the time of Hubbard's motion Kember was a fugitive in England,
[*1282] where she conducted Scientology operations, and was fighting
extradition to this country. Hubbard's motion sought more than mere use
immunity for Kember.It requested in addition that the government permit Mrs.
Kember to travel to the United States to testify in aid of Mrs. Hubbard and then
allow her to return to England to continue her legal challenge to the
extradition efforts of the United States.
Neither Hubbard nor Kember filed personal
affidavits as is normally required.
Instead Hubbard's local lawyer (Boudin) and Kember's British solicitor (Bird)
[**131] filed what are essentially hearsay affidavits. The solicitor's
affidavit is based on " instructions I have received from Mrs. Kember," and
relying thereon states that she would testify to certain facts in support of
Hubbard that allegedly would be beneficial to Hubbard's case. Because of the
disposition we make of this motion we will not deal with the procedural defects
of such affidavits, but will analyze their evidentiary allegations as though the
facts had been properly presented.
B. "Use" Immunity in the Courts
The first, and most decisive reason for affirming the refusal of the
government and the court to grant Hubbard's motion for "use" immunity for Kember
lies in the decisional law interpreting 18 U.S.C. @@ 6002 and 6003.
Recent cases interpret the relevant statute as
not obligating the government
to grant use immunity to a putative defense witness who is a principal co-
defendant of the defendant who seeks the immunized testimony. While upholding
the validity of the "use" immunity statute, the Supreme Court, by Justice
Powell, pointed out:
a defendant demonstrates that he has testified, under a... grant of
immunity, to matters related to the federal prosecution, [**132] the federal
authorities have the burden of showing that their evidence is not tainted by
establishing that they had an independent, legitimate source for the disputed
United States, 406 U.S. 441, 460 (1972), quoting Murphy v.
Waterfront Commission, 378 U.S. 52, 79 n.18 (1964). Granting "use" immunity thus
increases the potential burden of proof the government must bear. If defendants
could obtain testimonial immunity for other defendants to testify, it would
inevitably snarl criminal proceedings.The imagination of defense counsel could
run riot and, with the government being unable to control the extent of the
witness' testimony, immunity and claims of immunity for the codefendant witness
would be sprouting with every answer.
The recognized rule is that the statute does not obligate the government
grant "use" immunity to defendants' witnesses and the power to apply to the
court for use immunity is confined to the government. Grochulski v. Henderson,
637 F.2d 50 (2d Cir. 1980), cert, denied, 101 S. Ct. 383 (1981); United States
v. Turkish, 623 F.2d 769 (2d Cir. 1980), cert, denied, 101 S. Ct. 856 (1981);
United States v. Lenz, 616 F.2d 960, 962-63 (6th [**133] Cir.), cert, denied,
U.S. 929 (1980); United States v. Klauber, 611 F.2d 512 (4th Cir. 1979),
cert, denied, 446 U.S. 908 (1980); United States v. Bacheler, 611 F.2d 443 (3d
Cir. 1979); United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), cert, denied,
441 U.S. 913 (1979); United States v. Graham, 548 F.2d 1302, 1314 (8th Cir.
1977); In re Kligo, 484 F.2d 1215, 1222 (4th Cir. 1973).
Generally, a trial court has no authority, in
the absence of a request by the
government, to provide use immunity for a defense witness.United States v.
Herbst, 641 F.2d 1161, 1168 (5th Cir. 1981); United States v. Lenz, 616 F.2d 960
(6th Cir.), cert, denied, 447 U.S. 929 (1980); United States v. Gleason, 616
F.2d 2, 27-28 (2d Cir. 1979), cert, denied, 444 U.S. 1082 (1980); United States
v. [*1283] Niederberger, 580 F.2d 63 (3d Cir.), cert, denied, 439 U.S. 980
(1978); United States v. Morrison, 535 F.2d 223 (3d Cir. 1976); United States v.
Berrigan, 482 F.2d 171 (3d Cir. 1973). Contra, United States v. DePalma, 476
F.Supp. 775 (S.D.N.Y. 1979). Where the defense has been denied material
testimony by prosecutorial misconduct, however, two courts have held that the
trial court, in order to correct [**134] such misconduct, may order the
government on remand to grant use immunity or suffer the dismissal of its case.
United States v. Herman, 589 F.2d 491 (3d Cir. 1978), cert, denied, 441 U.S. 913
(1979); United States v. Morrison, 535 F.2d 223 (3d Cir. 1976); cf.Government of
the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980) (distinguishing
statutory and "judicial" immunity); see also Earl v. United States, 361 F.2d
531, 534 n.l (D.C. Cir. 1966), cert, denied, 388 U.S. 921 (1967).This is not
such a case.
An extensive discussion of the cases is not necessary. The Second Circuit's
decision in United States v. Turkish, 623 F.2d 769 (2d Cir. 1980), cert, denied,
101 S. Ct. 856 (1981), discusses the alternatives. The defendants there moved
that seventeen of the prospective defense witnesses be granted immunity and be
required to testify under 18 U.S.C. @ 6001. The customary argument was made by
the movants that "these witnesses could provide exculpatory testomony, but would
invoke their Fifth Amendment privilege and decline to testify unless compelled
to do so." At the trial court's invitation the government considered the
request, but decided not to grant immunity, and the validity [**135] of this
decision was upheld by the trial court after the trial. Affirming that
decision, the Second Circuit commented:
[W]e think trial judges should summarily reject claims
for defense witness
immunity whenever the witness for whom immunity is sought is an actual or
potential target of prosecution . n85 No hearing should be held to establish
such status . The prosecutor need only show that the witness has been indicated
or present to the court in camera an ex parte affidavit setting forth the
circumstances that support the prosecutor's suspicion of the witness's criminal
n85 We do not believe that the Second Circuit's
decision in Turkish should be
taken as holding that the government must grant immunity in every case unless
the witness is "an actual or potential target of prosecution." Such an
interpretation of the statute would ignore the fact that the witness is claiming
self-incrimination. That the government is not then targeting the witness does
not mean he might not eventually be a target. If all untargeted witnesses were
granted compulsory use immunity then they could secure immunity from some of the
worst then undiscovered crimes by merely testifying in court on a defendant's
---------------- -End Footnotes- ----------------
623 F.2d at 778
(emphasis added). The court deferred
passing on factual
situations where the witness is not an indicted defendant or a potential
defendant or where the government prefers not to state its position. In a
separate opinion, Judge Lumbard stated:
In my view it is not the proper business of the
trial judge to inquire into
the propriety of the prosecution's refusal to grant use immunity to a
Id . at 779 (Lumbard,
J., concurring in part and dissenting in part).
seems to be the soundest interpretation of the statute. We accordingly affirm
the trial court's denial as a proper interpretation of the statute. C. The
Affidavits Filed in Support of the Motion
if the foregoing analysis did not persuade us that the court correctly
denied Hubbard's motion, we would in any event deny the motion based on the
factual insufficiency of the filed affidavits. The affidavits allege that if
Kember were called as a witness for Hubbard she would claim that her testimony
would incriminate her and would refuse to testify unless she were assured that
her testimony could not later be used against her. Bird's affidavit for Kember
further states "her [**137] testimony potentially might be highly
incriminating to herself." J.A. at 911. Several of the [*1284] significant
allegations of the Bird affidavit assert that practically all the incriminating
documents in the case came to Kember's knowledge and that Kember's potential
testimony was "exculpatory" of Hubbard; and the affidavit is replete with
assertions "that Mrs. Hubbard had no prior knowledge " of certain allegedly
unlawful activities described in the indictment.J.A. at 935-38, 942. Hubbard's
brief also asserts that "Mrs. Kember was the only witness who could have given
detailed and creditable testimony on... [certain] stated matters." Hubbard's
Brief at 70 (emphasis added). The Boudin affidavit also describes defendant
Kember as the "principal, and perhaps the only witness who can testify to
certain points." J.A. at 911 (emphasis added).Hubbard's brief also states Kember
would allegedly testify that Hubbard "had no knowledge of or responsibility for
the allegedly criminal acts described in the documents which the government
intended to introduce as evidence." Hubbard's Brief at p. 72.
The Boudin affidavit in support of Hubbard's
motion purported to analyze the
government's [**138] case and concludes that the Kember testimony would be
"exculpatory." The affidavit further alleges that "Kember would [testify] that
because of the extensive activities and interests of the Guardian Office, Mary
Sue Hubbard could not possibly have known about, and would be prevented from
knowing about, the vast majority of such [incriminating] matters." J.A. at
910.The "Red Box" program suggests otherwise.
Many of the claims in the Boudin (Hubbard)
affidavit with respect to Kember's
potential testimony are less than conclusive and hedge their probative effect by
limiting terminology. For example: "Mrs. Hubbard has had little responsibility
for the director [sic] or supervision of the Guardian Office..." "[W]ritten
programs, instructions, and compliance reports... of the Guardian Office...
usually were not authorized or seen by Mrs. Hubbard..." "As to "...
communications addressed to Mrs. Hubbard... Mrs. Kember did not pass along most
of them ." "Mrs. Hubbard... would [never]... have received copies of the
overwhelming majority of the [incriminating] documents referred to in the
indictment. Hubbard Brief, p. 69-70 (emphasis added). The qualified nature of
[**139] fails to offer
sufficient support for the
representation that Kember's testimony would be "exculpatory" of Hubbard's
The factual claims of Hubbard's
lawyer and Kember's solicitor asserted in
their affidavits in support of Hubbard's motion to grant use immunity to Kember
can be summarized as follows:
would testify that Hubbard had "no prior knowledge" of certain of
the unlawful activities — she "had no knowledge of or responsibility for the
alleged criminal acts." Hubbard Brief at 72.
was the only witness in a position to offer such essential
testimony. J.A. at 911.
(3) Kember would offer "essential exculpatory testimony." J.A. at 908.
As to (1) the affidavits indicate
that much of the alleged beneficial
testimony of Kember would not be admissible for various reasons. And even if
some of the testimony was admitted, while it might give some aid to Hubbard's
case, it would fall short of being substantially exculpatory. Obviously Kember
was close to Hubbard in some operations and at some times, but there were huge
gaps of time when they were hundreds of miles apart. Kember might be able to
testify as to some documents she forwarded to [**140] Hubbard and some that
she did not, but she was not a competent witness to Hubbard's complete lack of
knowledge on many matters during very substantial periods covered by the
indictment. The affidavits exaggerate the probative effect of the admissible
evidence. In a similar case, Chief Judge Winner pointed out with respect to an
allegation that a witness will testify "to what [a] defendant knew" is "not
infrequently ruled [to be inadmissible because] a witness can't testify to the
fact of another's state of mind, barring a possible exception where the witness
is a [*1285] psychiatrist." United, States v. McMichael, 492 F.Supp. 205,
208 (D. Colo. 1980).
Another fatal weakness in the
affidavits of counsel lies in the fact they do
not support the allegation that Kember was the only witness who could allegedly
testify Hubbard's lack of knowledge. The availability of other witnesses would
be one factor that could be relied on to deny a request for immunity. Some of
the flaws in Kember's claim as to the probative effect of her testimony have
been pointed out. In addition, if such facts did exist, better witnesses would
be Scientology's employees described in the affidavits who [**141] were
physically closer to Mrs. Hubbard at various times and who screened her
correspondence — for example, "her personal assistant Nikki Merwin," J.A. at
929, or any one of "three assistants," J.A. at 930, or later the "two
assistants" and Mrs. Hubbard's "personal communicator," J.A. at 931. These
assistants at various times presented brief summaries to Mrs. Hubbard of her
correspondence and Mrs. Hubbard allegedly relied upon her assistants, though
even their testimony would not be complete as to her activities because "for
certain periods [Mrs. Hubbard] was in different locations from her two executive
assistants." J.A. at 932. The testimony of such assistants, and even of
Kember's clerical assistants, would be necessary to completely cover the claim.
In fact, Kember's clerical assistants who typed the letters and mailed or filed
the correspondence seemingly could testify to what documents were forwarded to
Hubbard. The testimony of these assistants would also carry greater credibilty
than the testimony of Kember because they were not serving in policy positions
Scientology and had not been indicted.
But even their testimony would not
be conclusive on the issue of Hubbard's [**142] knowledge.
The factual allegations in the affidavits with
respect to Kember's ability to
offer exculpatory testimony for Hubbard also do not indicate that they are
generally directed to the time period covered by Count 23 to which Hubbard
entered a guilty plea and is the only conviction before us. The time period of
this count ran from June 11, 1976 to July 8, 1977.Most of the Kember (Bird)
affidavit, to the extent that it is specific, is devoted to earlier periods.
Kember's representations with respect to Count 23 allege:
54. Concerning Count 23, that
Mrs. Hubbard never met Gerald Bennett Wolfe
prior to the issuance of this indictment, and has not met Michael Meisner to
this day; that she Mrs. Hubbard had no prior knowledge, and certainly did not
agree or authorize their entry into the United States Courthouse or any other
government office for the purpose of burglarizing and stealing documents; that
Mrs. Hubbard was not aware of the existence of Grand Jury proceedings conducting
the investigation referred to in Count 23, paragraph 3, and that consequently
she entered into no agreement to violate section 18 USC 1503; and that she, Mrs.
Kember, would not be suggesting in any [**143] way that Mrs. Kember, would
not be suggesting in any way that Mrs. Hubbard engaged in an agreement to commit
the other offences set forth in para 8, Count 23.
at 943. Several of these allegations are
highly selective, and they do not
negate other facts that might prove Hubbard's guilt on the conspiracy count.
That Hubbard never met Wolfe before the indictment and has never met Meisner
does not disprove her participation in the conspiracy. It is not necessary that
all conspirators meet each other. United States v. Hernandez, 608 F.2d 741 (9th
Cir. 1979); United States v. Avalos, 541 F.2d 1100 (5th Cir. 1976), cert.
denied, 430 U.S. 970 (1977). And, to the extent that the quoted allegations
might be construed as attempting completely to negate Hubbard's guilt thereon,
they are highly conclusory and incomplete, in that they do not deny other facts
that would incriminate her in the offenses. n8 6
n86 At the present time the claim is also
belied by the facts in the
stipulated record which support her conviction.
---------------- -End Footnotes- ----------------
It is therefore too plain from the affidavits for further discussion
there were many people who actually handled Mrs. Hubbard's correspondence and
could testify with respect to it. Some of them were far better qualified for
certain periods to so testify than Kember because they actually handled the
correspondence at Hubbard's elbow when Kember was miles away. They might also
be able to testify to any documents that incriminated Hubbard and were destroyed
pursuant to the "Red Box" program. And Kember could not testify as to knowledge
Hubbard may have gained from other sources. It is thus clear that Kember was
not the only witness who might testify to substantially the same facts, and that
no witness could testify to the state of Hubbard's mind or as to the extent of
her own knowledge except herself. The Guardian's Office was alleged to have
"more than 1050 full-time staff." J.A. at 923. With such a plethora of
potential witnesses it cannot be concluded that Kember is the only witness. The
admissibility of the critical parts of Kember's testimony was thus highly
questionble and there were other witnesses who were better qualified to testify
to the basic facts [**145] from which such knowledge would be deduced or
D.The Effect of the Disposition Agreement
A further consideration at this time is the fact that Hubbard and the
defendants were found by the court, on the pleading of the defendants, to have
entered into a Disposition Agreement (see Appendix) which called for the court
to decide the case on a "Stipulation of Evidence." J.A. at 348-61. The agreed
"Disposition" essentially amounts to an admission of guilt on the "stipulated
record" to one count of the indictment and limits the challenges the defendants
might assert to any conviction. As set forth above, the Disposition Agreement
between the parties provided, inter alia, that the defendants agreed "not to
challenge the sufficiency of the evidence... on appeal [and to refrain from]
assert[ing] that the facts alleged do not amount to a violation of the crime
charged because of other considerations ." J.A. at 356-58.(emphasis )
Hubbard's present attempt on appeal to remand the case to secure the immunized
factual testimony of Kember, or to have the case dismissed for failure to secure
such factual testimony, constitutes an attempt to introduce additional evidence
[**146] in violation of this agreement.Her motion in this respect therefore
would be denied on such grounds if we had not already found that it did not lie
under sections 6002 and 6003, and that the factual support for it was
insufficient. It is also significant that Hubbard did agree on the facts in the
stipulated record to "be found guilty on Count twenty-three of the indictment"
charging conspiracy to obstruct justice in violation of 18 U.S.C. @ 1503 and
several other offenses. n87
---------------- -Footnotes- ----------------
n87 Convictions were entered in accordance with the Disposition Agreement.
--------------- -End Footnotes- ---------------
We therefore affirm the action of the government in refusing to grant
immunity to Kember and the court's refusal to order such immunity. Apart from
the fact that "use" immunity was not required to be granted, it would have been
foolhardy to grant such immunity as it would have increased the government's
burden of proof against a defendant who it appeared from the record was the
highest official of Scientology with admitted guilty knowledge of the indicted
[**147] crimes. The Attorney General must approve the grant, and the United
States Attorney must be satisfied that the testimony is necessary to the public
interest. n88 It would obviously not have been in the public interest to hazard
the prosecution of Kember with all the potential objections that might evolve
from granting "use" immunity to her.
----------------- -Footnotes- -----------------
n88 See 18 U.S.C.
@ 6003, set forth in note 84 supra .
---------------- -End Footnotes- ----------------
The Court finds that the government and the
defendants in this case agreed to
the following: [*1287]
1. Defendants Hubbard, Heldt, Snider,
Weigand, Willardson, Raymond, and
Wolfe will be found guilty upon Count Twenty-three of the indictment, which
charges the defendants with consiparacy to obstruct justice, by the trial court
upon a stipulated record;
2. Defe[n]dant Hermann will be found
guilty upon Count One of the
indictment, which charges the defendants with conspiracy to illegally obtain
government documents, by the trial court on a stipulated record;
3. Defendant [**148]
Thomas will be found guilty upon any misdemeanor
theft count contained in the indictment by the trial court upon a stipulated
record with the specific count chosen by the government;
4. The remaining counts in the
indictment shall not be dismissed pending
disposition of any appeals brought by the defendants. In the event that a
conviction of a particular defendants is reversed or vacated as a result of
judicial review, the government retains the option of proceeding on any of the
remaining counts as to that defendant. In the event that the conviction of any
defendant is not reversed, all remaining counts as to that defendant shall be
dismissed with prejudice upon entry of the final judgment of conviction.n4 * It
is understood that the appellate process may include proceedings on certiorari
in the United States Supreme Court;
* Since no footnotes to
this Agreement appear in Judge Richey's opinion or
elsewhere in the record, the court assumes that the superscript "4" here is a
5. The [**14 9]
government retains the right to allocute on matters in any
fashion it chooses as to all defendants except the defendant Hubbard. As to the
defendant Hubbard, the government agrees to advise the Court as follows: "the
government takes no position and is making no request on the matter of sentence
with respect to the defendant Hubbard." It is understood that Mrs. Hubbard
through her counsel will make no statement in allocution concerning the facts of
the case. It is further agreed that as to any defendant, including Mrs.
Hubbard, the government may dispute any statements of fact on any mtter with
which it has disagreement;
6. In the event that any defendant
receives a term of incarceration as a
result of conviction in this case, the government will not object to his or her
incarceration in a minimum security institution currently designated level one
by the Bureau of Prisons.
7. Should the Bureau of Prisons or the
Parole Commission request of the
government its view as to the category of the severity of the offense of which
the defendants have been convicted, the government will not tell these agencies
that the offenses involved more than $ 2,000 in property value;
government [**150] reserves the right to attach any or all of
designated case-in-chief documents to the stipulated record to support findings
of guilt by the trial court.The 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. The
government shall oppose any attempt of the defendants to have the stipulated
record sealed. With respect to all documents seized during the searches in
California on July 8, 1977, the government retains the right to distribute
copies of such documents to state and federal law enforcement agencies and other
agencies of the federal government. It is further agreed that these documents
will not be made available by the government to the press or to any private
individuals or entities except pursuat to lawful subpoena and following ten
days' notice to the Church of Scientology;
stipulated record upon which the defendants are to be convicted will
be prepared by the government [**151] and submitted to the defense two days
after the day upon which the agreement is finalized. The defense will be given
twenty-four hours to [*1288] comment on and propose additions to the
stipulated record. The government may accept or reject the defendants' proposed
11. The government has made no promises with respect
to immunity from
prosecution in other jurisdictions.
CONCURBY: WALD (In Part)
WALD, Circuit Judge (Concurring in part, and concurring in the result):
I concur in the result in this case, but I cannot agree with all the rhetoric in
sections I and III-VI of the court's opinion. Regarding section II, which
treats the search and seizure issue, I concur in the opinion, except for the
court's idscussion of the search of Mrs. Lawrence's office at Fifield Manor, nl
and the degree of preparation required of agents conducting complex document
searches. n2 I would also clarify the application of the "scrupulous
exactitude" test in this case. n3 I confine my remarks to the latter three
---------------- -Footnotes- -
See per curiam opinion pp. 50-56 supra .
n2 See id . at 47-50. [**152]
n3 See id . at n.33.
--------------- -End Footnotes-
court properly states the law that "the authority to search granted by
any warrant is limited to the specific places described in it, and does not
extend to additional or different places." n4 I find, however, that Mrs.
Lawrence's office was nowhere mentioned in the warrant and the searching
officers could not reasonably have believed that her office constituted part of
the "suite of offices of Mr. Henning Heldt[.]" J.A. at 155 (warrant's
description of the place to be searched). I find appellants' arguments on this
issue n5 persuasive: the Lawrence office was a separate, free standing
structure, independently locked, with no external markings of any sort to
that it constituted part of someone else's office in the main building.
It is highly significant that access to the Heldt suite of offices in the main
building would not provide access to the Lawrence structure. n6 In addition,
the only indication whether this structure -- nowhere referred to in the warrant
— was or was not part of the Heldt suite came from Mrs. Lawrence, who said it
was her own office, [**153] not Mr. Heldt's, and that she did not work for
him. n7 Of course, as the court says, Mrs. Lawrence "should [not] have been
permitted to lay down the boundaries for the agents' search." n8 But her remarks
are worthy of attention not only because they represent the only specific
statement which the agents had before them to judge whether the structure was or
was not part of the Heldt suite, but also because they corroborated the physical
evidence indicating the separateness of the structure from the Heldt suite. For
these reasons, I am convinced that entry into Mrs. Lawrence's office was outside
the scope of the warrant and unlawful. I am in accord with the per curiam
opinion, however, insofar as it concludes that even if this search of the Heldt
suite were outside the warrant, the circumstances under which it was conducted
do not represent such flagrant disregard for the warrant as to convert the
search into a general one requiring total suppression of all documents seized.
---------------- -Footnotes- ■
n4 Id . at 50.
n5 See id . at 50-53.
n6 See id . at n.50.
n7 See id . at n.52.
n8 Id . at 54. [**154]
n9 See cases cited id . at 43.
--------------- -End Footnotes-
its discussion of the preparation required of agents who undertake
searches for documents, the court states that "the agents should be familiar
with the general nature of the crimes that are charged and the list of items
they are authorized to seize, either through reading of the warrant or through
adequate instructions or supervision from those in charge." nlO I certainly
agree that it is improper for a search of this magnitude to be undertaken unless
those participating in its familiarize themselves [*1289] with the list of
particulars they are authorized to seize. But I am convinced that a first-hand
reading of the list, or a thorough oral communication of it, constitutes the
minimum preparation each agent must receive before conducting a document search
of this kind. I cannot envision what sort of "supervision" the court speaks of
which would suffice to familiarize agents with a list of particulars they have
neither been told about nor read. I do agree, however, that "the arrival of a
supplementary contingent of inadequately prepared agents in this [**155]
particular case [did not result] in a general search which might require the
exclusion of all seized documents." nil
nlO Id . at 48-49 (emphasis supplied).
n11 Id .
--------------- -End Footnotes-
Finally, although I concur with the court's discussion of the
exactitude" test as far as it goes, nl2 I would add that the need for
minimization in conducting document searches nl3 is intensified where the
documents are sought because of "the ideas which they contain." If the
particularity requirement is not obeyed with "the most scrupulous exactitude" in
such cases, "the protection of [first amendment] freedoms [might be left] to the
whim of the officers charged with executing the warrant[.]" Stanford v. Texas,
379 U.S. 478, 485 (1965); see Zurcher v. Stanford Daily, 436 U.S. 547, 564
(1978). In this case it is true that most of the documents listed in the warrant
were allegedly stolen; thus their content was irrelevant to the justification
for their seizure. It is equally clear, however, that at least with respect to
[**156] items 152-62 in the warrant, the "ideas" contained in the documents
were, or may have been, the basis for their seizure, since those documents were
subject to seizure only because they evinced some intent to commit conspiracies
against the government, just as some documents in Stanford were subject to
seizure only because they evinced some intent to violate the Texas Suppression
Act. In both cases agents were sent to seize, inter alia, any documents which
contained certain generally described thoughts or plans, rather than being sent
to seize only specific items, e.g., a stolen television, or heroin, or a
particularly described diagram, ledger, or letter. See Stanford v. Texas, 379
U.S. at 485 n.16. The former directives lack the inherent exactitude present in
the latter, and inevitably requie nonneutral officers to make important
discretionary judgments as to the nature and content of various documents.
Equally significant is the fact that here, as in Stanford, the group subjected
to the search was a political or religious organization currently in conflict
with the government, precisely the type of group that the first and fourth
amendments most vigilantly protect. See generally [**157] Zurcher v.
Stanford Daily, supra, 436 U.S. at 564; NAACP v. Alabama, 357 U.S. 449, 460-62
(1958) . Thus, had defendants alleged that certain documents admitted as evidence
against them had been unlawfully seized, the scrupulous exactitude standard
might have been appropriately applied. But that is not the argument here, nl4
and I agree with the court that the scrupulous exactitude standard is not
appropriate for deciding whether a general search occurred requiring total
suppression of everything seized.
----------------- -Footnotes- -
nl2 See id . at n.33.
nl3 See id . at 44-47.
nl4 See in . at n.29.
--------------- -End Footnotes-
Subject to the above, I concur in the opinion of the court concerning
search and seizure issue, and with the results reached in other sections of the