UNITED STATES of America,
v.
Henning HELDT and Duke Snider, Appellants.
UNITED STATES of America,
v.
Mary Sue HUBBARD, Appellant.
UNITED STATES of America,
v.
Sharon THOMAS, Appellant.
UNITED STATES of America,
v.
Gregory WILLARDSON, Appellant.
UNITED STATES of America,
v.
Richard WEIGAND, Appellant.
UNITED STATES of America,
v.
Cindy RAYMOND, Appellant.
UNITED STATES of America,
v.
Gerald Bennett WOLFE, Appellant.
UNITED STATES of America,
v.
Mitchell HERMANN, Appellant.
Nos. 79-2442, 79-2447 to 79-2450, 79-2456, 79-2459 and 79-2462.
United States Court of Appeals, District of Columbia Circuit.
668 F.2d 1238
215 U.S.App.D.C. 206
Argued Feb. 27, 1981.
Decided Oct. 2, 1981.
As Amended Oct. 2 and 30, 1981.
Following preliminary proceedings, 474 F.Supp. 90, 493 F.Supp. 206, 493
F.Supp. 209, defendants were convicted, in accordance with a disposition
agreement, before the United States District Court for the District of
Columbia, Charles R. Richey, J., of conspiracy to obstruct justice and other
offenses in the cases of six of the defendants, of conspiracy to burglarize
government offices and steal documents in the case of one of the defendants,
and of misdemeanor theft of government property in the case of another
defendant. Defendants appealed. The Court of Appeals held that: (1)
prosecution for conspiracy of defendant who concealed purpose and scope of his
criminal activities and subsequently told a false story to grand jury was not
barred by his agreement to plead guilty to misuse of a government seal, even
though Government had promised not to charge defendant with any other possible
violations arising out of events giving rise to guilty plea; (2) search warrant
which specified 162 separate descriptions of seizable documents involved in
investigation of members of the Church of Scientology was valid, and searches
pursuant to warrant satisfied ultimate constitutional requirement of
reasonableness; (3) trial judge properly determined that he was under no
obligation to recuse himself from case; (4) trial court did not err in refusing
to disqualify all prosecutors in the office of the United States Attorney for
the District of Columbia; (5) Government did not violate disposition agreement
not to allocute at sentencing when it disputed defense counsel's testimony that
during negotiations Government's stated position was that it did not want one
of defendants to go to jail; and (6) lower court did not err in refusing to
grant "use" immunity to a codefendant so that she could offer allegedly
"exculpatory" testimony on behalf of another defendant.
Ordered accordingly.
Wald, Circuit Judge, filed an opinion concurring in part and concurring in the
result.
Appeal from the United States District Court for the District
of Columbia (D.C. Civil No. 78-401).
Philip Hirschkop, with whom Leonard S. Rubenstein and Geraldine R. Gennet,
Alexandria, Va., 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., Washington, D.C., for appellants in Nos. 79-2456 and 79-
2462. Michael Nussbaum and Ronald Precup, Washington, D.C., also entered an
appearance for appellants in Nos. 79-2456 and 79-2462.
Leonard Boudin, New York City, with whom Eric Liberman, San Francisco, Cal.,
and Dorian Bowman, New York City, were on the brief for appellant in No. 79-
2447.
John Zwerling with whom Jonathan Shapiro and Diana Lee Evans, Alexandria, Va.,
were on the brief for appellant in No. 79-2459.
Leonard J. Koenick, Washington, D.C., was on the brief for appellant in No.
79-2448.
Roger E. Zuckerman and Roger C. Spaeder, Washington, D.C., were on the brief
for appellants in No. 79-2449 and 79-2450.
Steven C. Tabackman and Melvyn H. Rappaport, Asst. U.S. Attys., with whom
Charles F. C. Ruff, U.S. Atty., John A. Terry, Michael W. Farrell, Raymond
Banoun, Judith Hetherton and Timothy J. Reardon, III, Asst. U.S. Attys.
Washington, D.C., 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, Boston, Mass., was on the statement in lieu of brief for
amicus curiae, National Moratorium on Prison Const., et al., in Nos. 79-2447,
79-2448, 79-2449, 79-2450, 79-2452 and 79-2462.
Before MacKINNON, ROBB and WALD, Circuit Judges.
Opinion PER CURIAM.
Opinion concurring in part and concurring in the result filed by Circuit Judge
WALD.
PER CURIAM:
Appellants,(FN1) 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 false declarations under
oath before a grand jury.(FN2)
FN1. The appellants are Henning Heldt, Duke Snider, Mary Sue HUBBARD,
Sharon Thomas, Gregory Willardson, Richard Weigand, Cindy Raymond, Gerald
Bennett Wolfe and Mitchell Hermann. Two other defendants, Jane Kember and
Morris Budlong, were in England, fighting extradition, when this case was
tried. They were subsequently extradited on the burglary counts, and found
guilty after a jury trial on nine counts of burglary.
FN2. Appellants HUBBARD, Heldt, Snider, Willardson, Weigand, Hermann, and
Raymond were charged with conspiracy to steal property of the United
States (18 U.S.C. s 641), to intercept oral communications (18 U.S.C. s
2511(1)(a)), to forge United States government credentials (18 U.S.C. s
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 s 1801(b)), all in violation of 18 U.S.C.
s 371 (Count 1). They were also charged with conspiracy to obstruct
justice (18 U.S.C. s 1503), to obstruct a criminal investigation (18 U.S.C.
s 1510), to harbor and conceal a fugitive (18 U.S.C. s 1071), and to make
false declarations (18 U.S.C. s 1623), all in violation of 18 U.S.C. s 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 coconspirator 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
(FN3) 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.(FN4) 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).
FN3. A contemporaneous search of SCIENTOLOGY'S offices in Washington, D.C.
is not discussed because none of the documents seized in that search were
offered in evidence in this case. See In re Search Warrant, No. 79-2138
(D.C.Cir.1981).
FN4. This Agreement, Joint Appendix (hereinafter "J.A.") at 356-58, is set
forth as the Appendix to this opinion.
On December 4, 1979, after the presentence reports were received, appellants
moved for Judge Richey's recusal. Judge Richey declined to continue the
sentencing of appellants pending his ruling on the motion, and appellants were
sentenced on December 6 and 7.(FN5) The recusal motion was subsequently denied
in a memorandum and order filed on December 14, 1979 (J.A. at 387-93). These
appeals followed.(FN6)
FN5. All appellants except Thomas were sentenced pursuant to 18 U.S.C. s
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.
FN6. Under the Disposition Agreement the remaining charges remain
outstanding pending disposition of the appeals.
The district court had previously ruled that
defendants have agreed not to challenge the sufficiency of the evidence
before the trial court or on appeal. That is, the defendants will not
challenge the accuracy of the facts stipulated by the government, and the
defendants will not assert that the facts alleged do not amount to a violation
of the crime charged because of other considerations.
MEMORANDUM OPINION filed October 8, 1979, at 11 (J.A. at 358). This permitted
appellants to raise the constitutionality of the search on appeal, which they
have done.
The facts giving rise to this case involve appellants' covert operations to
steal government documents pertaining to Scientology and a conspiracy to
obstruct justice in connection with those operations. This program was carried
out by the defendants and others through what were termed the "Guardian
Offices" of Scientology. To conceal evidence of their
activities, defendants initiated the "Red Box" program by a general order dated
25 March 1977.(FN7) 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 (FN8) 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 of the knowledge and intent of the defendants in carrying out their
various criminal programs against various agencies of the government.
FN7. The "Red Box" program, as set forth in Government's Exhibit 219,
stated:
7984
25 Mar, 1977
All concerned
BI staff
All Secs
DGI US OFFICE
VIA: DDGI US
RE: RED BOX
Dear All,
This is to introduce into BIUS (Bureau of Information, United States) the
complete red box system. Most of you have heard of this earlier-I will now
explain it in detail. First of all, all data that is red box data, has to
be pulled from your areas. The complete definition of Red Box material is
attached.
Secondly, you must ensure that none of your juniors, (for those of you who
have them) have red box data in their areas.
All the red box material from your areas must be centrally located,
together and in a moveable container (ideally a briefcase), locked, and
marked.
When this is done in each area, we will divide up the amounts and deputize
persons in the area to be responsible for its removal from the premises in
the case of a raid. This procedure will be drilled. This procedure will
stay in at the new location.
Please have all this data sorted and located in proper container by Monday
night Mar. 28. I will then divide up removal duties, and we will drill it
Tuesday night just before the all hands.
Love Judy
(The exhibit also contains other handwritten comments.)
RED BOX DATA INFORMATION SHEET
1. What is Red Box data?
a) Proof that a Scnist (Scientologist) is involved in criminal activities.
b) Anything illegal that implicates MSH, (Mary Sue HUBBARD), LRH (L. Ron
HUBBARD).
c) Large amounts of non FOI docs (covertly obtained government documents).
d) Operations against any government group or persons.
e) All operations that contain illegal activities.
f) Evidence of incriminating activities.
g) Names and details of confidential financial accts.
2. Where is Red Box data kept?
a) Out of date material or finished cycles that can be shredded should be.
b) Large amounts of red box data that is not needed for day to day function
but cannot be destroyed is located with all our NON FOI docs-and can be
called for via CIC.
c) Small amounts of data that must be kept on hand due to security and
frequent use-is to be kept in a briefcase locked up-and is to be marked.
(In BI office area)
3. How is Red Box data, kept on the BI premises, cared for?
a) This data will be picked up and carried out of the building by 'owner'
immediately upon notification of a raid, search warrant etc.
b) Persons carrying this data (as few as possible) will leave the premises
and only return when they have called in and received an "all clear".
(Details of who goes where with what data will be sorted out later-and
drilled)
This sheet contained the handwritten comment: "NOT FOR COPYING!! This
sheet is to be returned to Sec of RBI US Dyn Mar 28, 1977."
"NON-FOI docs (documents)" refers to government documents that were
"obtained by covert action," J.A. at 186, i.e., not by suits under the
Freedom of Information (FOI) Act.
FN8. L. Ron HUBBARD, who was not indicted, and his wife, the defendant
Mary Sue HUBBARD, are respectively the highest and second highest officials
in the Scientology organization.
The principal contentions raised by appellants are: (1) that the government
breached its plea agreement with Wolfe when it prosecuted him for conspiracy;
(2) that the search of the offices of Scientology in California violated the
fourth amendment; (3) that the trial judge should have recused himself on
appellants' motion; (4) that the trial court erred in denying appellants'
motion to disqualify all attorneys in the office of the United States Attorney
from prosecuting the case; (5) that the government violated its agreement not
to allocute at HUBBARD'S sentencings; and (6) that HUBBARD'S first and sixth
amendment rights were violated by the refusal of the
government and the court to grant "use" immunity to co-
defendant Kember so that she could offer allegedly "exculpatory" testimony on
HUBBARD'S behalf.
For the reasons set forth in detail in Parts I-VI infra, we reject each of
these contentions and affirm the district court judgment. Because resolution
of the issue involving Wolfe requires recitation of many of the facts that
underlie this case, we address it first. Other facts will be set out as they
become relevant to the other issues, which will be addressed in Parts II-VI.
I. WOLFE'S CLAIM THAT HIS PROSECUTION WAS BARRED
(1) The appellant Wolfe contends that his prosecution for conspiracy, 18
U.S.C. s 371 (1976) is barred by his agreement to plead and his plea of guilty
to misuse of a government seal, 18 U.S.C. s 1017 (1976). We disagree.
Resolution of the issue raised by Wolfe requires a statement of the facts and
circumstances leading 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 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 "Blake'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 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. s 499
(1976). He waived the forty-five day limit for the filing of an indictment or
information.
Continuing investigation by the FBI disclosed the following information:
1. The "Foster" identification card had probably been made on the equipment
located in the identification room of the IRS which was supposedly subject to
tight security;
2. For several weeks before the end of June 1976 "Foster" had used the card
approximately three times a week to enter the IRS building;
3. According to the sign-in log "Thomas Blake" had entered the IRS building on
a Saturday in late April or early May 1976. No description of this man was
obtained;
4. The man who used the "Foster" card was Michael J.
Meisner. Meisner had never been an employee of the IRS but since 1973 had been
a member and employee of SCIENTOLOGY in Washington, D.C. He disappeared from
Washington shortly after the courthouse encounter. A warrant for his arrest
was issued August 5, 1976, but he was not apprehended. As we shall see, he
remained a fugitive until June 19, 1977, when he voluntarily surrendered.
In addition to the information developed by the FBI the United States
Attorney's Office at this time became aware of documents which had been
produced by SCIENTOLOGY in connection with two civil actions in California.
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 fantasy of
someone".
On July 16, 1976 Wolfe and his attorney met with an assistant United States
Attorney in the District of Columbia and Wolfe attempted to explain his
nocturnal visits to the Bar Association library. He said that in a Georgetown
bar he had chanced to meet a stranger who said his name was John Foster and
that when Foster professed to be a law student, Wolfe asked him to teach Wolfe
how to do legal research. Wolfe and Foster had gone to the Bar Association
library for this purpose, and used the United States Attorney's xerox equipment
only to copy material found in law books. As for the false identification
cards Wolfe said he and Foster had got drunk one night and as part of a
"drunken lark" had wandered into the IRS identification room and made false
identification cards for themselves. He knew nothing more about Foster, did
not know where he lived or where he was, his only association with Foster
having been meetings in bars and the legal research project. 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 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 appeared 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. s 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, 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 this courthouse with another man in May and June of last year using a
false and fraudulently obtained Internal Revenue I.D. card.
*1246 In addition, the government will not oppose Mr. Wolf's (sic)
remaining on personal recognizance pending sentence, and the government
expressly reserves its right to allocute at the time of sentence. I believe
Mr. Schmidt, that is an accurate statement of the plea agreement.
MR. SCHMIDT: I agree that that is an accurate statement of our agreement....
(J.A. 73, 74) Following these statements the court addressed Wolfe as follows:
THE COURT: Now, it has been indicated that in return for your plea to this
Information, the government will not charge you with any other possible
offenses arising out of the three incidents occurring in May or June of 1976
growing out of the use of this fraudulent identification. The government will
not oppose your remaining on bond pending the sentence. The government,
however, reserves the right to speak against you or to allocute at the time of
your sentence.
Now, are those the only promises that have been made to you in this case?
THE DEFENDANT: Yes, sir.
THE COURT: Has anyone threatened you to cause you to plead guilty in this
case?
THE DEFENDANT: No, sir.
(J.A. 83)
Wolfe was sentenced on June 10, 1977. At the sentencing the Assistant United
States Attorney summarized what was known to the government about Wolfe's
activities and said that in the opinion of the government Wolfe had not told
the truth to the United States Attorney and the probation office. He added:
(T)he Government is concerned about this case primarily because of what it
does not know, rather than what it does know.
We are puzzled why this young man who has never been in conflict with the law
before has chosen to plead to a five-year five thousand dollar felony and
expose himself in that respect to the adverse collateral consequences that flow
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 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 Scientologists to
obstruct justice, suborn perjury, steal government property, and harbor a
fugitive. What follows is a brief summary of Meisner's statement.
Meisner had been an active member of SCIENTOLOGY since 1970. Beginning in
January 1974 he was the Assistant Guardian for Information in the District of
Columbia. The Guardian's Office is charged with the protection of
SCIENTOLOGY. The Guardians handle intelligence matters including covert
operations to acquire government documents critical of SCIENTOLOGY, internal
security 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
Herman entered the IRS building, went to an office in the Exempt Organization
Branch and took a file relating to SCIENTOLOGY out of a filing cabinet. The
file was taken out of the IRS building, xeroxed and returned the next morning.
On November 1, 1974 Mitchell Herman and a SCIENTOLOGY technician from Los
Angeles surreptitiously entered the IRS building and placed a listening device
in a conference room which they knew was about to be used for a high-level IRS
meeting on SCIENTOLOGY. They tape-recorded the meeting and later Meisner saw a
transcript of the tape.
From December 1974 to March 1975 Herman directed several burglaries of the
office of an attorney in the Refund Litigation Division of the Chief Counsel of
IRS. In March 1975 Meisner took over from Herman the supervision of all covert
SCIENTOLOGY agents within government offices. He supervised Wolfe's activities
at IRS and on numerous occasions accompanied Wolfe into the IRS building after
working hours for the purpose of breaking into offices and copying documents
relating to SCIENTOLOGY. The documents would be xeroxed and the copies sent to
the Los Angeles Guardian's Office. In his statement Meisner specified a number
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 Information suit against
INTERPOL. Thomas took documents from the attorney's files as well as INTERPOL
files and delivered them to Meisner. It developed however that most of the
sought-after INTERPOL documents were not at the Department of Justice but
probably were in the Office of Assistant United States Attorney Dodell in the
United States Courthouse. Accordingly Meisner and Wolfe directed their
attention to Dodell's office.
*1248 Some time in March 1975 Meisner and Wolfe entered the IRS
building after hours, using Wolfe's IRS credentials. Once inside they broke
into the room in which the equipment used to make identification cards was
located and made themselves false identification cards using fictitious names.
These credentials were later used to enter the United States Courthouse.
During the first week of May 1976 Meisner and Wolfe entered the courthouse
during working hours and went to the Bar Association library on the third
floor. They waited until work hours ended and then began to wander around to
locate 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, 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 Dodell'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 with SCIENTOLOGY files and xeroxed them on the United
States Attorney's machines. Working together on two machines they produced a
stack of documents slightly larger than the one of May 21.
After reviewing the documents obtained on May 28 Meisner determined that one
more visit to Dodell's office would be necessary to copy the remaining
SCIENTOLOGY documents. He was also instructed by Mitchell 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 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
checked into a motel where he spent the night before leaving for Los Angeles on
an 8:30 A.M. flight.
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 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 Columbia with a parallel cover-up story. It was decided that Meisner would
change his physical appearance and go into hiding.
On Monday, June 14, Meisner shaved his mustache and a SCIENTOLOGY employee
visited him at the motel and cut and dyed his hair. He was also given money to
buy contact lenses to replace his eyeglasses. He purchased the lenses.
On the afternoon of June 14 Wolfe, accompanied by two SCIENTOLOGY officers,
arrived at Meisner's motel room and the cover stories were developed. Wolfe
was drilled on the specifics of the story to make sure he could stick by it.
The story was the one he afterwards told the United States Attorney and the
grand jury about his meeting with Foster and his legal research project.
Meisner was to tell a story that corroborated Wolfe's.
In furtherance of the scheme agreed upon in Los Angeles Wolfe was returned to
the District of Columbia where he was arrested June 30, 1976. Meisner remained
in California. On June 14, 1976 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 capacity. He remained in hiding. This
situation continued until some time in April 1977 when Meisner indicated he was
tired of waiting for the case to be resolved and wished to be sent back to the
District of Columbia as soon as possible. When he threatened to take the
situation in his own hands he was placed under 24-hour guard, and on one
occasion was removed from one building to another, handcuffed and gagged. On
another occasion he was apprehended by Scientologists in Las Vegas and returned
in their custody to Los Angeles where he was again placed under house arrest.
Finally, on June 20, 1977 he telephoned to the United States Attorney's Office
in the District of Columbia that he wished to surrender.
On July 8, 1977 the offices of SCIENTOLOGY in California were searched by FBI
agents, pursuant to a warrant issued on the basis of Meisner's statements to
the government. Numerous documents were seized. This search and seizure are
discussed elsewhere in this opinion. The seized documents confirmed the
statements to the government previously made by Meisner.
On August 15, 1978 Wolfe and the other defendants were indicted by a grand
jury in the United States District Court for the District of Columbia. The
indictment was in twenty-eight counts. Wolfe stipulated that the District
Court might find him guilty on Count Twenty-three upon the basis of a
"Stipulation of Evidence", and the court did find him guilty on that count.
The Stipulation also confirmed Meisner's statements. So far as Wolfe is
concerned, therefore, we are concerned only with Count Twenty-three.
Count Twenty-three alleges a conspiracy to obstruct justice in violation of 18
U.S.C. s 1503 (1976), to obstruct a criminal investigation in
violation of 18 U.S.C. s 1510 (1976), to harbor and conceal a fugitive in
violation of 18 U.S.C. s 1071 (1976); and to make false declarations in
violation of Title 18 U.S.C. s 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, using forged 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 of 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 (paragraphs 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. s 1017
(1976), and that on JUNE 10, 1977 he was sentenced and that same day testified
before the grand jury (paragraphs 6, 7).
The object and means of the conspiracy are alleged as follows:
9. It was an object of said conspiracy to corruptly influence, obstruct and
impede, and corruptly endeavor to influence, obstruct and impede, the due
administration of justice in connection with the investigation referred to in
paragraph three (3) above, and in connection with the case of United States v.
Gerald Bennett Wolfe, Criminal Case No. 77-283, referred to in paragraphs six
and seven (6 and 7) above, for the purpose of concealing and causing to be
concealed the identities of the persons who were responsible for, participated
in, and had knowledge of (a) the activities which were the subject of the
above-mentioned investigation and judicial proceedings, and (b) other illegal
and improper activities.
10. It was further an object of said conspiracy, for the purposes stated in
paragraph nine (9) above, willfully to endeavor by means of misrepresentation,
intimidation, and force and threats thereof to obstruct, delay, and prevent the
communication of information relating to a violation of a criminal statute of
the United States by a person to a criminal investigator.
11. 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 knowledge 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.
12. 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.
13. 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:
(a) The 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;
(b) The defendants and the unindicted co-conspirators would and did give
false, misleading, evasive and deceptive statements and testimony;
(c) The 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 by Wolfe;
(d) The 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 overt acts were committed by the
defendants in furtherance of the conspiracy. Only No. Forty-two charges an
overt 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-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).
When Count 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 his prosecution for this conspiracy is barred by
the 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 (1976) 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.
When 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 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
conceal 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 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 is unreasonable.
Wolfe relies heavily on United States v. Phillips Petroleum Co., 435 F.Supp.
622 (N.D. Okl. 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. s 610 (1970). *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. s 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. s 610 (1970) there would be no further prosecution for any 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, "because the conduct alleged in Count I was disclosed to the Special
Prosecutor before the plea was entered, the prosecution for the conduct alleged
in 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 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, 94 S.Ct. 2646, 41 L.Ed.2d
237 (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 (5th
Cir. 1979), cert. denied, 449 U.S. 841, 101 S.Ct. 120, 66 L.Ed.2d 48 (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 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 (FN9) 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 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.
FN9. Wolfe was questioned briefly as to whether he had ever entered the
IRS 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 "compelled" and
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 prosecutor who ridiculed his testimony and made improper comments about
it. We are not impressed by the complaints.
(2) It is established law that because a witness has been found guilty of the
actions in question he is no longer entitled to claim the privilege of the
fifth amendment with respect 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, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); United States v. Gernie, 252 F.2d
664 (2d Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073
(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.
The 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. 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
the conspiracy.
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 appeal
involved over 200 FBI agents and government personnel (FN10) 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 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.
FN10. 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, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants *1254 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 establish a
constitutional violation. Instead, "(o)ur fundamental inquiry in considering
Fourth Amendment issues is whether or not (the) search or seizure is reasonable
under all the circumstances." United States v. Chadwick, 433 U.S. 1, 9, 97
S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977).(FN11) 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.
FN11. See also Michigan v. Summers, --- U.S. ----, 101 S.Ct. 2587, 2592-
93 & n.12, 69 L.Ed.2d 340 (" 'key principle of the Fourth Amendment is
reasonableness-the balancing of competing interests' " quoting Dunaway v.
New York, 442 U.S. 200, 219, 99 S.Ct. 2248, 2260, 60 L.Ed.2d 824 (1979));
Roaden v. Kentucky, 413 U.S. 496, 501-02, 93 S.Ct. 2796, 2799-2800, 37
L.Ed.2d 757 (1973); Chimel v. California, 395 U.S. 752, 765, 89 S.Ct. 2034,
2041, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868,
1878, 20 L.Ed.2d 889 (1968); Cooper v. California, 386 U.S. 58, 59, 87
S.Ct. 788, 789, 17 L.Ed.2d 730 (1967); United States v. Rabinowitz, 339
U.S. 56, 63, 66, 70 S.Ct. 430, 434, 435, 94 L.Ed. 653 (1950) ("whether the
search was reasonable ... depends upon the facts and circumstances-the
total atmosphere of the case").
(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 proof.
In re Search Warrant Dated July 4, 1977, 572 F.2d 321, 328 n.4 (D.C.Cir.1977),
rehearing en banc denied, 572 F.2d 328 (D.C.Cir.), cert. denied, 435 U.S. 925,
98 S.Ct. 1491, 55 L.Ed.2d 519 (1978). See also Andresen v. Maryland, 427 U.S.
463, 481 n.10, 96 S.Ct. 2737, 2749 n.10, 49 L.Ed.2d 627 (1976).
(3) 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 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 (FN12) and the Cedars-Sinai Complex
(FN13) in Hollywood, California. Since the evidence introduced at defendants'
trial was obtained from the Hollywood searches, not from the
Washington search, (FN14) this opinion is concerned only with
the validity of the former. The search warrants were based upon a 33-page
sworn affidavit (FN15) 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
up these crimes during a grand jury investigation of a burglary of the office
of an Assistant United States Attorney in the United States Courthouse in
Washington, D.C.
FN12. Fifield Manor is located at 5930 West Franklin Ave., Hollywood,
California.
FN13. The Cedars-Sinai Complex is located at 4833 Fountain Avenue,
Hollywood, California.
FN14. 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 July 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 their 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).
FN15. 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
four-drawer file cabinets, one two-drawer file cabinet, 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.(FN16)
FN16. See Fifield Inventory, Def. Exh. 421, 421a.
The Cedars-Sinai search was far more extensive. Although over 50 agents were
initially assigned to this search operation,(FN17) by mid-morning the
supervising agents decided that the number of agents on hand was insufficient.
(FN18) Accordingly, approximately 50 additional agents-who had not been
briefed the day before-were added to the search teams.(FN19) 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 (FN20) separate documents were
seized from Cedars.
FN17. 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.
FN18. See Tr. 8/24 at 10; Tr. 8/27 at 17. United States v. Hubbard,
supra, 493 F.Supp. at 230.
FN19. See Govt. Br. at 51; App. Br. I at 11; Tr. 8/24, at 35, 36, 38.
FN20. Compare Govt. Br. at 25 with App. Br. I at 30.
Immediately following the execution of the warrants, the
Church filed two 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).
(FN21) Neither action effected a return of all the documents.(FN22) 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.
FN21. See Church of SCIENTOLOGY v. United States, No. CV-77-2565-MML (C.D.
Cal. Apr. 4, 1978, and July 5, 1978), reprinted at J.A. 201-229, 230-258
(California decisions); note 14 supra (District of Columbia decisions).
FN22. 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.131a.
B. Fourth Amendment Interests Implicated in This Case
(4, 5) The fourth amendment serves to protect two distinct interests. See
generally Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29
L.Ed.2d 564 (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." (FN23) Second, where probable cause is found and a
warrant issues, the particularity requirement seeks to assure that
FN23. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92
L.Ed. 436 (1948).
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 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, 48 S.Ct. 74, 76, 72 L.Ed. 1016
(1927).
(6) Of course, even when the search warrant meets both the probable cause and
particularity requirements, the search itself must be conducted in a reasonable
manner,(FN24) appropriately limited to the scope and intensity(FN25) called for
by the warrant. See Terry v. Ohio, 392 U.S. 1, 17-18, 88 S.Ct. 1868, 1877-1878,
20 L.Ed.2d 889 (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, 88 S.Ct. at 1883-1884; United
States v. Rettig, 589 F.2d 418, 423 (9th Cir. 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
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 seizureS.
FN24. 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) Amendment."
Payton v. New York, 445 U.S. 573, 584 n.23, 100 S.Ct. 1371, 1379 n.23, 63
L.Ed.2d 639 (1980)(quoting N. Lasson, The History and Development of the
Fourth Amendment to the United States Constitution 103 (1937)).
FN25. In this case, scope and intensity refer to the location and manner
in 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, 67 S.Ct. 1098, 1102, 91 L.Ed. 1399 (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.").
Defendants' first claim is that the warrants for Fifield Manor and Cedars-
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 (FN26)
listed either internal documents of SCIENTOLOGY, or other allegedly stolen
documents. With respect to Items 149-62, 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 for rehearing en banc). We
held, on authority of Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49
L.Ed.2d 627 (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.(FN27)
FN26. 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.
151. Any notes, memoranda, or reports prepared by Michael Meisner and/or
Gerald Wolfe relating to their entry into the United States Courthouse on
or about June 11, 1976 and their confrontation with two FBI agents on that
date.
152. Guardian Order 1361.
153. Guardian Order 1634.
154. 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".
156. Any and all Guardian Orders issued pursuant to the Guardian Order
generally identified as "Snow White" which would be identified by the
mention of "Snow White".
157. Any and all documents contained in the Operations Files concerning
Robert Snyder.
158. Any 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.)
159. Any and all documents attached to a memorandum from Mitchell Hermann
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 ss 371, 1503 and 641 which
facts recited in the accompanying affidavit make out.
J.A. at 162-63.
FN27. 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. 476, 478, 485, 85 S.Ct. 506, 508, 511, 13 L.Ed.2d 431
(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. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d
525 (1978), and freedom of religion is not endangered but encouraged when
criminal conspiracies are suppressed that attempt to hide behind religion.
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's 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 Items
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.
We 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-Sinai; 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, 100 S.Ct. 73, 62 L.Ed.2d 48 (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 was
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, 96 S.Ct. at 2747 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.
There remain, however, the issues related to the execution of
the warrants. (FN28) Normally, criminal defendants seeking suppression on
appeal allege that the particular 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, 34 S.Ct. 341, 58 L.Ed. 652
(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.(FN29) Defendants argue
instead that because the search as a whole was a general 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 "(u)nless
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).
FN28. Both sides vigorously argue the standing of the defendants to raise
the 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, 99 S.Ct. 421, 430, 58
L.Ed.2d 387 (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 personal offices.
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 limited 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.
FN29. The district court noted that "defendants have made no attempt to
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 Indexed 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. ---- - ---- & n.18, infra. Finally, defendants'
allegation that those case-in-chief documents seized under Items 159-61
must be suppressed for lack of particularity is contrary to our holding
that the warrant is sufficiently particularized. See p. 1257 supra.
(7) 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).(FN30) Cf. United
States v. Tracy, 350 F.2d 658 (3d Cir.), cert. denied, 382 U.S. 943, 86 S.Ct.
390, 15 L.Ed.2d 353 (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 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, 92 S.Ct. 1291, 31 L.Ed.2d
479 (1972). See generally United States v. Scott, 516 F.2d 751, 760 n.19
(D.C.Cir.1975), cert. denied, 425 U.S. 917, 96 S.Ct. 1519, 47 L.Ed.2d 768
(1976) (dictum noting agreement with the rule.)
FN30. 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).
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, 91 S.Ct. 1999, 2004 n.7, 29 L.Ed.2d 619 (1971).
In the context of document searches, the need to prevent "general, exploratory
rummaging in a person's belongings" (FN31) is particularly acute. Unlike
searches for other tangibles, document searches-like eavesdropping and bugging
"searches" (FN32)-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 Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976),
which involved a search and seizure of a criminal defendant's office files, the
Supreme Court stated:
FN31. Coolidge v. New Hampshire, supra, 403 U.S. at 467, 91 S.Ct. at 2038.
FN32. The Court's directive to judicial officials in Andresen 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, 88 S.Ct. 507, 513-14, 19 L.Ed.2d 576 (1967); Berger v.
New York, 388 U.S. 41, 53-4, 56-7, 66-67, 87 S.Ct. 1873, 1880-81, 1882,
1887, 18 L.Ed.2d 1040 (1967). See generally Scott v. United States, 436
U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) (concerning both judicial
and statutory minimization requirements).
We 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 they are conducted
in a manner that minimizes unwarranted intrusions upon privacy.
Id. at 482 n.11, 96 S.Ct. at 2749 n.11 (emphasis supplied).(FN33)
FN33. Thus if any of the documents used by the government as evidence-in-
chief against defendants had been seized without scrupulous adherence 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.
(8) This court implicitly recognized the importance of the Andresen
minimization requirement in our 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 of the things to be seized,
(FN34) 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' 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.
FN34. 2 W. LaFave, Search and seizure s 4.10(d) (1978); see note 25 supra.
1. Adequate preparation.
(9, 10) Warrants are not self-executing; they require agents to carry them
out. In order for a warrant's limitations to be effective, those conducting
the search must have read or been adequately apprised of its terms.(FN35)
Where, as here, the terms are numerous, complex, and potentially overbroad
unless limited by the specifications of an extensive affidavit, the need for
careful preparation on the part of those searching is essential.(FN36) 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.
(FN37) 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.(FN38) In conducting a search of this
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 1244 supra, then its contents must be examined, or
else communicated to the agents by their supervisors.(FN39) Minimization
designed to control the proper scope of the search cannot occur without such
knowledge.
FN35. 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, 99 S.Ct. 1682, 1693, 60 L.Ed.2d 177 (1979) (in absence of specific
instructions, execution of warrant "generally left to the discretion of the
executing officers").
FN36. As Judge Leventhal pointed out, "we are concerned with realities of
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.
FN37. 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.
FN38. 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).
FN39. 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. 947, 92 S.Ct. 287, 30 L.Ed.2d 264 (1971).
(11) Nonetheless, though the facts here in some respects approach the limits
of 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,(FN40) always represented less
than half the total of those searching at Cedars-Sinai.(FN41) 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; (FN42) such consultations occurred frequently
throughout the operation.(FN43) They were also informed that copies of the
warrant and affidavit would be available for their use within the search area.
(FN44) Even more important, the late-arriving agents worked alongside and in
conjunction with others (FN45)-both supervisors and searches-who had been
satisfactorily briefed, who had reviewed the warrant and affidavit and had them
in their possession,(FN46) and who assisted the newcomers in their choice of
documents to be seized.(FN47) 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.(FN48) 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.
FN40. See Tr. 8/24, at 10.
FN41. See note 17 and accompanying text, supra.
FN42. See Tr. 8/24, at 43-44, 147; Tr. 8/27, at 317.
FN43. See Tr. 7/16, at 272; Tr. 7/17, at 443; Tr. 8/24, at 177; 8/27, at
140.
FN44. See Tr. 8/22, at 55; 8/24, at 41-44.
FN45. See Tr. 7/16, at 309.
FN46. See Tr. 8/22, at 55; Tr. 8/24, at 151-52; Tr. 8/27, at 318.
FN47. See Tr. 8/24, at 177.
FN48. See Tr. 7/16, at 310; Tr. 8/27, at 316-17.
2. Area limitation.
(12) A second limitation upon searches concerns the area to be covered by the
search operation itself. It is 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 s 4.10
(1978). In this case the only serious allegation of
geographic overbreadth (FN49) is raised by defendant Mary Sue HUBBARD, and
concerns Mrs. Janet Lawrence's office in Fifield Manor.
FN49. 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. HUBBARD, 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,
(C.D.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.
(13) 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,(FN50) 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(.)"
FN50. A path from the public hallway elevators to the Lawrence office
structure (bottom left) which avoids the Heldt suitE [ hZ6lu ]9ted by a
broken line on the map here reproduced:
Appellants contend that it could not for several reasons. First, 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." (FN51) Second, Mrs. Lawrence
informed the agents that the hut was her office, not Mr.
Heldt's, and that she did not work for Mr. Heldt.(FN52) 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.(FN53) 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.(FN54)
FN51. 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").
FN52. See Tr. 7/6, at 291-92, 294.
FN53. See note 50 supra.
FN54. See Tr. 7/6 at 417-18; Tr. 8/29 at 324-30.
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
s regarding actual extrajudicial conduct or involvements,
for 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 source.
Appellants recognize that disqualification based on prejudice is required only
if the alleged prejudice stems from an extrajudicial source.(FN71) 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.(FN72) They submit first that
the security precautions taken during the Los Angeles proceedings were related
to the Scientologists.(FN73) Second, they offer the observation that security
precautions are usually invoked based upon fear of bodily harm.(FN74)
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
courthouse security, defendants draw conclusions both of prejudice and an
extrajudicial source of that prejudice. We are unable to accept either
conclusion.
FN71. United States v. Haldeman, 559 F.2d 31, 132-34 & n.297
(D.C.Cir.1976) (en banc ), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53
L.Ed.2d 250 (1977).
For a long time before enactment of new s 455(a) in 1974, the judicial
understanding of s 144 and old s 455 was that they were to be confined in
operation to extrajudicial conduct or conditions.... Nothing we have
observed in the legislative history of new s 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, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966).
FN72. Appellants note correctly that particular judicial rulings can be
evidence of an extrajudicial bias or prejudice. Appellants' Brief II at
32.
FN73. Shortly before oral argument in this court, appellants moved to
augment 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.
FN74. 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).
*1273 First, defendants do not persuade us that the source of the
judge's fear was 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 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 perjury 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 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 P
14(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
Washington headquarters turned up a loaded gun. United States v. Hubbard, 493
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 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.(FN75) 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 rash 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.
FN75. See, e.g., People v. Remiro, 89 Cal.App.3d 809, 153 Cal.Rptr. 89,
115 (photography, fingerprinting and search of spectators at trial of
Symbionese Liberation Army member), cert. denied, 444 U.S. 876, 937, 100
S.Ct. 160, 288, 62 L.Ed.2d 104, 197 (1979).
The question posed, then, is the relevance to the question of prejudice of a
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 prejudice *1274 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 remarks
regarding security is unavailing 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, 449
U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114 (1980); United States v. Lyon, 588 F.2d
581 (8th Cir. 1978), cert. denied, 441 U.S. 910, 99 S.Ct. 2005, 60 L.Ed.2d 381
(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. 1977). (FN76)
FN76. 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 discussions ... 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).
We are mindful of the counsel given by the Senate Judiciary Committee
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 the
entire office of the United States Attorney for the District of Columbia from
prosecuting this *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 Sept.
13, 1979, denied defendants' motion. United States v. Hubbard, Cr. No. 78-401
(D.D.C. 1979) (memorandum opinion denying motion to disqualify prosecutors)
(J.A. 269). 493 F.Supp. 206.
(17) 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 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 offenders.
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 suite "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).
(18) Because of the failure to raise the matter before the district court we
hold that the issue is waived 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.
(19) It is of course improper for a prosecutor to participate in a case when
he has a pecuniary interest in the outcome. 18 U.S.C. s 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 (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 should give rise to a similar concern. See,
e.g., State v. Cox, 246 La. 748, 167 So.2d 352, 357 (1964); Oregon State Bar
Comm. on Legal Ethics, Opinions, No. 386 (1978). See also 28 C.F.R. s 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, 55
S.Ct. 629, 633, 79 L.Ed. 1314 (1935); ABA Code of Professional Responsibility
EC 7-13 (1980). Our system of justice accords the *1276 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 sued by a
defendant because defendants could then remove whichever prosecutor they please
simply by suing him.(FN77) 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, 96 S.Ct.
984, 47 L.Ed.2d 128 (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, 450
U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981), and therefore loses his
absolute immunity from suit if he actually participates in a search,(FN78)
although retaining a qualified, good-faith immunity.(FN79)
FN77. 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.
FN78. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895
(1978); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980), cert.
denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981).
FN79. Id. There is no showing here that the prosecutors did not act in
good faith.
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
recently:
(A)bsolute 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, ---
U.S. ---- (101 S.Ct. 3132, 69 L.Ed.2d 367) (1981); Briggs v. Goodwin, 569 F.2d
10, 21 (D.C.Cir.1977), cert. denied, 437 U.S. 904 (98 S.Ct. 3089, 57 L.Ed.2d
1133) (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 (96
S.Ct. at 995).
Dellums v. Powell, 660 F.2d 802, 805 (D.C.Cir.1981) (footnote omitted). The
distinction serves the public interest in the administration of criminal
justice. Most prosecutors participate in searches to some extent 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.
(20)(21)(22) Although 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.(FN80) The *1277
question we face here, however, is the very different one of what
should be done when defendants have failed to move to disqualify on the ground
of a conflict of interest,(FN81) 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 (FN82) 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.
Birdman, 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, 100
S.Ct. 703, 62 L.Ed.2d 668 (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 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.(FN83)
FN80. The potential conflict of interest that might result from a personal
es 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 such representations fails to offer sufficient
support for the representation that Kember's testimony would be "exculpatory"
of Hubbard's criminality.
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:
(1) Kember 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.
(2) Kember 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 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 psychiatrist.'' *1285 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 to 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 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 credibility than the testimony of Kember because they were not serving
in policy positions with Scientology and had not been indicted. But even their
testimony would not be conclusive on the issue of Hubbard's 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 way that Mrs. Hubbard
engaged in an agreement to commit the other offenses set forth in para 8, Count
23.
J.A. 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, 97 S.Ct. 1656, 52 L.Ed.2d 363 (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.(FN86)
FN86. At the present time the claim is also belied by the facts in the
stipulated record which support her conviction.
*1286 It is therefore too plain from the affidavits for further
discussion that 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 questionable and there were other witnesses
who were better qualified to testify to the basic facts from which such
knowledge would be deduced or denied.
D. The Effect of the Disposition Agreement
A further consideration at this time is the fact that Hubbard and the other
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 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. s 1503 and several other offenses.(FN87)
FN87. Convictions were entered in accordance with the Disposition
Agreement.
(25) We therefore affirm the action of the government in refusing to grant
"use" 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 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.(FN88) 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.
FN88. See 18 U.S.C. s 6003, set forth in note 84 supra.
APPENDIX
DISPOSITION AGREEMENT
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 conspiracy 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 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 defendant 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. 4
((FN*) ) It is understood that the appellate process may include proceedings on
certiorari in the United States Supreme Court;
FN* 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 typographical error.
5. The 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;
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;
8. The government reserves the right to attach any or all of its 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 pursuant to lawful subpoena
and following ten days' notice to the Church of Scientology;
10. The stipulated record upon which the defendants are to be convicted will
be prepared by the government 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 changes;
11. The government has made no promises with respect to immunity from
prosecution in other jurisdictions.
(J.A. 356-358).
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 discussion of the search of Mrs. Lawrence's office at Fifield Manor,
(FN1) and the degree of preparation required of agents conducting complex
document searches.(FN2) I would also clarify the application of the
"scrupulous exactitude" test in this case.(FN3) I confine my remarks to the
latter three issues.
FN1. See per curiam opinion pp. 1262-1266 supra.
FN2. See id. at 1261-1262.
FN3. See id. at n.33.
The 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." (FN4) 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 (FN5) persuasive: the Lawrence office was a separate, free standing
structure, independently locked, with no external markings of any sort to
indicate 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.(FN6)
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, not Mr. Heldt's, and that she did not work for
him. (FN7) Of course, as the court says, Mrs. Lawrence "should (not) have been
permitted to lay down the boundaries for the agents' search." (FN8) 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.(FN9)
FN4. Id. at 1262.
FN5. See id. at 1262.
FN6. See id. at n.50.
FN7. See id. at n.52.
FN8. Id. at 1263-1265.
FN9. See cases cited id. at 1259.
In 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." (FN10) I certainly agree
that it is improper for a search of this magnitude to be undertaken unless
those participating in it 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
particular case (did not result) in a general search which might require the
exclusion of all seized documents." (FN11)
FN10. Id. at 1261-1262 (emphasis supplied).
FN11. Id.
Finally, although I concur with the court's discussion of the "scrupulous
exactitude" test as far as it goes,(FN12) I would add that the need for
minimization in conducting document searches (FN13) 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. 476, 478, 485, 85 S.Ct. 506, 508, 511, 13 L.Ed.2d 431 (1965);
see Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1980, 56
L.Ed.2d 525 (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 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, 85 S.Ct. at 511 n.16. The former
directives lack the inherent exactitude present in the latter, and inevitably
require non-neutral 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 Zurcher v. Stanford Daily, supra, 436 U.S. at 564, 98 S.Ct. at
1980; NAACP v. Alabama, 357 U.S. 449, 460-62, 78 S.Ct. 1163, 1170-71, 2 L.Ed.2d
1488 (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,(FN14) 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.
FN12. See id. at n.33.
FN13. See id. at 1260-1261.
FN14. See id. at n.29.
Subject to the above, I concur in the opinion of the court concerning the
search and seizure issue, and with the results reached in other sections of the
opinion.
END OF DOCUMENT