From 493 F. Supp. 209; 1979 U.S. Dist, September 13, 1979 Third, the article seized must be of an incriminating character. Immediately upon observing the article, the agent must have probable cause for its seizure.

See United [*232] States v. Williams, 385 F. Supp. 1400, 1405 (E.D.Mich.1974). During the search of a cabinet labeled "Confessional Formulary"

in the Information Bureau, Special Agent Oppy came across a document n18 which is set out in its entirety in the margin. Trans. of July 17, 1979 at 448-49.

After this seizure an order went out for agents to watch for documents marked "red box" because "red box" meant that some of the documents might have been stolen. See Trans. of August 27, 1979 at 73.

n18. "RED BOX DATA INFORMATION SHEET 1. What is Red Box data?

a) Proof that a Scnist is involved in criminal activities.

b) Anything illegal that implicates MSH, LRH.

c) Large amounts of non FOI docs.

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a) Out of date material or finished cycles that can be shredded should be.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

Government Exhibit 38.

[**74] Aside from red-box data, a second large class of documents were seized under the plain view doctrine. These documents discussed infiltration and covert operations to obtain documents from private and state organizations. n19 n19. See e.g. Government Exhibit 111, a Guardian order which states:

"Program: . . . 12. Simultaneously with the above action, recruit and place operatives in the following places:

A. STL BBB B. STL Post Dispatch C. STL Globe 18. Obtain files on Scientology, using in-place operatives, from the following:

A. STL BBB, including Williams & Schmidt's offices B. STL Post, including Adams, McGuires' offices C. STL Globe including Bauman's and Shepard's offices . . . ."

The Court finds that the agents seizure of red box data, and evidence of covert infiltration of private and state organizations to obtain documents were reasonable. The agents, with knowledge of the warrant and affidavit, had probable cause to believe that this material was evidence of criminal activities. See United States [**75] v. DiGilio, 538 F.2d 972 (3d Cir.), cert. denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 739 (1976). Each and every element of an offense need not be made out beyond a reasonable doubt before evidence can be seized under the plain view doctrine. United States v.

Williams, supra at 1405. All that is required is probable cause that it is evidence of a crime. The Court finds that the seizure of these two large classes of material were reasonable. n20 n20. Some physical evidence was also seized under the plain view doctrine. This included a loaded gun which was seized after the agents were unable to find its owner. Trans. of August 17, 1979 at 124-25.

Finally, the defendants contend that the plain view doctrine does not apply to searches for documents. The Court must reject this contention. In Marron v.

United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231 (1927), holding approved in Coolidge v. New Hampshire, supra 403 U.S. at 469 n. 26, 91 S. Ct.

2022, a ledger and certain bills were introduced into evidence [**76] in the criminal trial of the petitioner for violations of the National Prohibition Act.

Marron v. United States, supra at 193, 48 S. Ct. 74. The agents seized the bills and ledger while executing a search warrant for intoxicating liquors and articles for their manufacture. [*233] Id. The evidence showed that they searched for and found large quantities of liquor, some of which were in a closet, and that while in the closet, the agents noticed the ledger showing inventories of liquors, receipts, and expenses. Id. at 193, 48 S. Ct. 74. Beside the cash register, the agents found the bills. Id. The Court upheld the seizure.

Id. at 199, 48 S. Ct. 74. Later cases stress that Marron involved the plain view doctrine. See Coolidge v. New Hampshire, supra 403 U.S. at 469 n. 26, 91 S. Ct.

2022.

I'd prefer to die speaking my mind than live fearing to speak.

The only thing that always works in scientology are its lawyers The internet is the liberty tree of the 90's http://www.lermanet.com - mentioned 4 January 2000 in The Washington Post's - 'Reliable Source' column re "Scientologist with no HEAD"

Crim. No. 78-0401 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 493 F. Supp. 209; 1979 U.S. Dist.

September 13, 1979 COUNSEL:

Carl S. Rauh, U. S. Atty., Raymond Banoun, Judith Hetherton, Timothy J. Reardon, Steven C. Tabackman, Asst. U. S. Attys., Washington, D. C., for the United States.

Leonard B. Boudin, Rabinowitz, Boudin & Standard, Michael Lee Hertzberg, New York City, for defendant Hubbard.

Philip J. Hirschkop, John D. Grad, Leonard S. Rubenstein, Hirschkop & Grad, P.

C., Alexandria, Va., for defendants Heldt and Snider.

Roger E. Zuckerman, Roger C. Spaeder, Lawrence A. Katz, Richard A. Stanley, Wendy K. Manz, Zuckerman, Spaeder & Taylor, Washington, D. C., for defendants Willardson and Weigand.

Michael Nussbaum, James Davenport, Ronald G. Precup, Nussbaum & Owen, Washington, D. C., for defendants Hermann and Raymond.

John Kenneth Zwerling, Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., for defendant Wolfe.

Leonard Koenick, Washington, D. C., for defendant Thomas.

OPINIONBY: RICHEY OPINION: MEMORANDUM OPINION The fourth amendment of the U. S. Constitution provides:

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 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. Am. 4. This amendment was intended to prevent searches under unchecked general authority, such as those that had resulted from the use of the general warrant in England and the writs of assistance in the Colonies, and to ensure the "privacies of life". Boyd v. United States, 116 U.S. 616, 630, 6 S.

Ct. 524, 29 L. Ed. 746 (1886). See Stanford v. Texas, 379 U.S. 476, 481-85, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965); Frank v. Maryland, 359 U.S. 360, 363-65, 79 S. Ct. 804, 3 L. Ed. 2d 877 (1959).

The exclusionary rule is a judicially created means of effectuating fourth amendment rights. Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037, 49 L. Ed.

2d 1067 (1976). In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L.

Ed. 652 (1914), the Supreme Court held that a defendant could petition prior to trial for the return of illegally seized evidence, and in Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647 (1921), the Court held that such evidence could not be introduced in a federal prosecution. Although the exclusion of probative reliable evidence denigrates the public interest in the determination of the truth at trial, the exclusionary rule has evolved as one deterrent to police misconduct. Stone v. Powell, 428 U.S. 465, 487-88, 96 S.

Ct. 3037, 49 L. Ed. 2d 1067 (1976).

Before the Court at this time are the motions of the defendants to suppress evidence. Finding no illegality in the actions of the government agents who executed the warrants at issue, the Court will deny the motions, and order the defendants to proceed to trial to be "acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, 394 U.S. 165, 175, 89 S. Ct. 961, 967, 22 L. Ed. 2d 176 (1969).

I. PROCEDURAL HISTORY On July 8, 1977, three search warrants were simultaneously executed on premises owned and operated by the Church of Scientology: 2125 S Street, N. W., Washington, D. C.; 5930 West Franklin Avenue, Hollywood, California (the Fifield Manor); and 4833 Fountain Avenue, Hollywood, California (the Cedars-Sinai Complex). Immediately following the execution of the warrants, the Church filed two separate actions in Los Angeles and the District of Columbia seeking the return and suppression of property pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure.

In separate Memorandum Opinions of April 4, 1978, and July 5, 1978, Judge Lucas upheld the execution of the warrants in California on all grounds. Church of Scientology v. United States, No. CV-77-2565-MML (C.D.Cal. April 4, 1978);

Church of Scientology v. United States, No. CV-77-2565-MML (C.D.Cal. July 5, 1978). On February 22, 1979, the Ninth Circuit Court of Appeals dismissed the Church's appeal of Judge Lucas' decision on the ground that the judgment was interlocutory and unappealable. Church of Scientology v. United States, 591 F.2d 533 (9th Cir. 1979).

Meanwhile, on August 15, 1978, eleven individuals were indicted by a federal Grand Jury. n4 It is these individuals, n5 about to go on trial, who are before this Court seeking to suppress the evidence seized on July 8, 1977. The suppression hearing began on July 3, 1979, with this Judge taking testimony in Los Angeles, California, n6 and ended, following a view of the premises and several weeks of proceedings in Washington, D. C., on August 29, 1979.

Five days prior to the completion of the hearing on the defendants' motions to suppress, Chief Judge Bryant issued an eleven-page Memorandum and Order holding that the search conducted in Washington, D. C. violated the fourth amendment. In re: Search Warrant Dated July 4, 1977, Misc. No. 77-0151 (D.D.C. August 24, 1979).

The defendants have raised six broad grounds in support of their motion to suppress:

1. The warrant was unconstitutional on its face because it is not supported by probable cause, was based upon stale information, did not particularly describe the place to be searched and the items to be seized, and was a general warrant;

2. The search was illegal because the affidavit which was necessary to uphold the legality of the warrant was not attached to the warrant at the time it was executed;

3. The agents conducted a general, exploratory search, in violation of the terms of the warrant and of the first and fourth amendments;

4. The agents seized documents beyond the scope of the warrant;

5. The agents used excessive force in their searches in violation of 18 U.S.C. § 3109; and, 6. The warrant was obtained and executed by the government in a manner which violated defendants' right to process of law.

The government has convincingly undermined the persuasiveness of the defendants' arguments on three broad grounds. First, the government contends that the standing of the defendants to seek the suppression of evidence seized from the premises of the Church is severely limited. Second, the government points to the decision of the U. S. Court of Appeals for the District of Columbia upholding the facial validity of the search warrant, In re: Search Warrant Dated July 4, 1977, supra, and the decisions of Judge Lucas upholding its execution in Los Angeles. Church of Scientology v. United States, supra. Finally, the government seeks to narrow the inquiry to the documents the government intends to introduce into evidence as part of its case-in-chief, which the defendants virtually concede were properly seized. The Court will begin its inquiry with an analysis of the defendants' right to challenge the search of the Church's premises.

II. THE DEFENDANTS' FOURTH AMENDMENT RIGHTS ARE LIMITED TO THEIR OWN OFFICES.

Traditionally, it was necessary for a defendant to demonstrate "standing" before he or she could challenge the validity of a search. See Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). In Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the Supreme Court subsumed the traditional standing inquiry under substantive fourth amendment doctrine. Id.

99 S. Ct. at 428. Thus, defendants can have illegally seized evidence suppressed if their fourth amendment rights have been infringed. Id.

In the prior proceedings at which the searches were challenged, the searches plainly involved the plaintiff's fourth amendment rights: the Church of Scientology was the owner and operator of the premises and the party challenging the searches. In the proceedings before the Court, the parties challenging the searches are individuals.

Each individual defendant in a criminal case must demonstrate that his or her fourth amendment rights are involved in order to suppress evidence. In Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), the Supreme Court noted that:

The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing.

Id. at 171-72, 89 S. Ct. at 965.

An individual's fourth amendment rights are involved if he or she has "a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, supra, 99 S. Ct. at 430. It has been recognized that such a test does not provide a "bright line" between cases, but instead, each case must be determined on the facts and circumstances presented. Id. at 435 (Powell, J., concurring).

Accordingly, with respect to each defendant, the Court must make a determination, on the facts and circumstances presented by that defendant, whether they had a legitimate expectation of privacy in the area from which evidence was seized.

In the Fifield Manor, evidence was seized from the offices of the defendants Duke Snider and Henning Heldt. In the Cedars-Sinai Complex, the only defendants' offices from which evidence was seized were those of Cindy Raymond and Greg Willardson. The government concedes that Heldt, Snider, Raymond, and Willardson have standing to suppress evidence seized from their own offices.

The defendants contend that every defendant has a legitimate expectation of privacy with respect to both premises in their entirety. In support of this claim, the defendants rely on three independent sources. First, the defendants argue that the places from which the documents were seized were secure offices with limited access. Second, the defendants contend that the documents were purportedly either authored or received by the defendants. Third, the defendants claim that they have an expectation of privacy in the exercise of their first amendment right to association and free exercise of religion.

The Court finds that there is a legitimate expectation of privacy with respect to one's own office. In Mancusi v. De Forte, 392 U.S. 364, 88 S. Ct. 2120, 20 L.

Ed. 2d 1154 (1968), union records were seized from an office shared by the defendant and several other union officials. Id. at 365, 88 S. Ct. 2120. The parties in Mancusi stipulated that the defendant spent a considerable amount of time in the office, and that he had custody of the papers at the moment of the seizure. Id. at 368-69, 88 S. Ct. 2120. Accordingly, if documents were illegally seized from an office of one of the defendants, that defendant could prevent the introduction of that evidence to prove his or her guilt.

Another of the defendants has attempted to fit within the rule of the Mancusi case. The defendant Mary Sue Hubbard has sought to suppress evidence seized from the office of Janet Lawrence because Hubbard is Lawrence's supervisor. The evidence before the Court shows that Hubbard did not even have a key to this office, trans. of August 29, 1979, at 329, and there is no evidence that she ever set foot in it. Accordingly, the Court finds that the defendant Hubbard has no legitimate expectation of privacy in documents located in the office of her assistant.

The defendants' second ground is completely unconvincing. According to the defendants, merely because they purportedly authored or were to receive certain letters, they have a legitimate expectation of privacy with respect to the contents of such letters. First, the defendants cannot rely on the government's "purported" allegations or the indictment, but have the burden of asserting a property or possessory interest in the seized property. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 423, 58 L. Ed. 2d 387 n.1 (1978).

The defendants' final contention is the vague and general argument that they had an expectation of privacy in the exercise of their first amendment right to association and free exercise of religion. In effect, the defendants seek to raise the rights of third parties simply because they share membership in a religious organization. In Rakas, the Supreme Court explicitly and emphatically declared that fourth amendment rights are personal and cannot be raised vicariously. See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 425, 58 L. Ed.

2d 387 (1978). Mere membership in a religious organization would not result in the "legitimation of expectations of privacy . . . by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Id. at 430 For example, there is no evidence that the defendant Wolfe ever set foot in any of the Church's offices in California, and no evidence that he was even aware of the existence of the documents seized on July 8, 1977. The Court is unable to fathom how he could have any expectation of privacy with respect to documents and premises merely because of his membership in the Church. Being an official of the Church would not alter this analysis.

The defendants seek a significant broadening of the right to suppress evidence.

This attempt must be rejected. The Court is unconvinced that such an enlargement in the class of those who can invoke the exclusionary rule would benefit the effectuation of fourth amendment goals. See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 427, 58 L. Ed. 2d 387 (1978). Accordingly, only the defendants Heldt, Snider, Willardson, and Raymond have fourth amendment rights touched by the searches of July 8, 1977, and their rights are limited to evidence seized from their offices which is being introduced against them.

III. THE WARRANTS ARE FACIALLY VALID.

Each warrant at issue in this case included a description of the premises, a description of property to be seized with 162 items, a source of documents indicating the source of the first 147 items to be seized, and an affidavit in support of the search warrant. The defendants contend that the information relied on by the affiant is unreliable, and the warrants were not supported by probable cause, do not particularly describe the places or things to be seized, and are based on stale information.

Each of the warrants executed on July 8, 1977, was supported by the same thirty-five page affidavit in support of the search warrant. The affidavits are identical except that typographical errors in the District of Columbia affidavit were corrected in the Los Angeles affidavits, and two additional footnotes were added to the two Los Angeles affidavits. The Court's analysis of the defendants' challenge to the Los Angeles warrants is greatly aided by the decision of the United States Court of Appeals for the District of Columbia Circuit, which reversed Chief Judge Bryant's earlier ruling and upheld the facial validity of the D. C. warrant. In re Search Warrant Dated July 4, 1977, 187 U.S.App.D.C.

297, 572 F.2d 321 (D.C.Cir.1977), cert. denied, 435 U.S. 925, 98 S. Ct. 1491, 55 L. Ed. 2d 519 (1978). Of course, such a ruling is controlling precedent.

The affidavit in support of the search warrants details the series of events which led up to the request by the government to search the premises of the Church of Scientology. The following are allegations made in the affidavit:

Michael Meisner and Gerald Wolfe were caught in areas off-limits to the public in the United States Courthouse in the District of Columbia in the spring of 1976. Affidavit in Support of Search Warrant (Aff.) at 15. Both gave phoney names and presented fraudulent Internal Revenue Service (IRS) identification.

Id. Wolfe pleaded guilty to the false use of a government seal, 18 U.S.C. § 1017, and a warrant was issued for Meisner's arrest. Id. at 1-2. On June 20, 1977, an Assistant United States Attorney received a telephone call and an offer to cooperate from Michael Meisner. Id. at 2. Meisner was interrogated in the presence of the affiant over a two-week period at which he described numerous criminal acts committed by himself and others on behalf of the Church of Scientology. Id. At seventeen places in the affidavit, the information provided by Meisner was independently verified by the government. Meisner was a high official of the Guardian's Office, the office in the Church responsible for the "protection" of Scientology. Id. at 3-4. One of the five Bureaus of the Guardian's Office was the Information Bureau which was responsible for illegal operations to acquire government documents critical of Scientology, covert operations to discredit and remove from positions of power all persons whom the Church considers to be its enemies, and internal security within the Church.

Meisner was Assistant Guardian for Information for the District of Columbia, and later National Secretary in Los Angeles, id. at 21, and as such had access to the most sensitive Church documents, including those kept in the Church's Los Angeles offices. No immunity was offered Meisner for his testimony.

The affidavit goes on to detail the conspiracies to steal government property and to obstruct justice. Beginning in early 1974, Guardian World Wide Jane Kember issued Guardian Order (GO) 1361, which called for an all-out attack on the IRS including infiltration of the offices of the IRS by agents of the Church. Id. at 4-5. Cindy Raymond, a member of the staff of the Deputy Guardian for Information, Mitchell Hermann, who was then responsible for covert activities in the District of Columbia, and Meisner recruited Gerald Wolfe for the purpose of infiltrating the IRS. Id. at 5. However, their plans were thwarted by Wolfe's inability to obtain all of the documents desired by his superiors. Id. at 5. In order to complete their plans covert entries were made by Meisner, Hermann, or Wolfe into IRS and Justice Department buildings on numerous occasions. Id. at 5-7. Furthermore, an electronic listening device was placed in an office which was used for high-level IRS meetings. Id. at 5 n.4.

In December, 1975, Cindy Raymond developed a "program" calling for covert operations designed to obtain Interpol documents regarding the Church of Scientology contained in files held by government agencies. Id. at 7-8. This program was developed in response to the general directive contained in GO 1634 which sought to obtain all documents that were not disclosed pursuant to the Freedom of Information Act, 5 U.S.C. § 552. Id. at 8. According to this program agents were to be placed in government offices, and thefts were to be made. Id.

Pursuant to these programs and orders, offices of the Department of Justice, the United States Attorney for the District of Columbia, and the IRS were entered on numerous occasions by Wolfe and Meisner. Furthermore, Sharon Thomas, a member of the Church, was placed in a secretarial position within the Justice Department in order to assist in these thefts.

When documents were obtained from certain of these incursions, Meisner sent copies to the Los Angeles Guardian's Office where copies were distributed to Guardian's Office officials, including Henning Heldt, and Richard Weigand. These were marked "Confidential GO 1361 Material". Other documents obtained illegally were sent by Meisner or Hermann to their superiors with cover memos explaining their contents signed "Mike" or "Mitch". Id.

After Meisner and Wolfe were confronted in the Courthouse, the obstruction-of-justice conspiracy began. Plans were made to limit the government's inquiry into the entry. Included in this cover-up plan was the concoction of a false story Wolfe would present to the grand jury. Eventually, Meisner became dissatisfied with his treatment at the hands of the Church officials, escaped from the guard placed on him by the Church, and agreed to cooperate in the ongoing government investigation.

Meisner also provided the affiant with detailed information on the filing system of the Church. The primary depository for documents was the Information Bureau in Los Angeles. Documents obtained through legitimate channels were marked "FOI"

and those obtained through burglary or theft were marked "Non-FOI". Nowhere in the affidavit does it state, or even suggest, that these filing cabinets were the only places where documents named in the warrant could be found.

The files and their locations are described in some detail. The Information Bureau documents were divided into six file systems. The main Information Bureau files were made up of two file systems individual and group totaling 250 file cabinets. The government special bank contained government documents, the majority of which were "Non-FOI" in ten filing cabinets of four or five drawers each. The individual, group and government special bank files were located in the Information Bureau's Offices in Cedars. The program files were located in the Heldt suite. The operations files were kept in the offices of the National Operations Officerwhich was in CedarsThe confidential file of the Deputy Guardian for Information (U.S.) was kept in the safe and a file cabinet in the office of the Deputy Guardian for Information, Greg Willardson, at Cedars.

A. The Warrants Are Supported By Probable Cause.

The defendants' first contention is that the warrants lack probable cause because the informant was unreliable. Meisner gave information in direct conflict with his penal interest, without any promises by the government, and his information was independently corroborated in numerous respects. As a former official of the Church, Meisner had direct knowledge of the operations of the Information Bureau and the location of its offices and files. The affidavit showed that the information was sufficiently reliable.

The defendants' second contention is that the 162 items in the "Description of Property", which is attached to the warrants, are not supported by probable cause. Items 1-99 are described in the source of documents as those taken from the office of an Assistant United States Attorney in Washington, D. C., and a footnote to the affidavit indicates that Meisner reviewed this Assistant's files and identified the documents in items 1-99 as those taken. The affidavit further states that Meisner sent copies of these documents to his superiors in Los Angeles.

Items 100-148 are documents taken by Sharon Thomas from the office of a Department of Justice attorney and were identified as such by Meisner.

Furthermore, the affidavit indicates that copies were sent by Meisner to his superiors in Los Angeles.

Items 149-151 concern synopses of Wolfe's grand jury testimony, notes by Weigand relating to the Wolfe and Meisner illegal entry into the Courthouse, and reports by Meisner about their entry. The affidavit indicates that these materials were prepared in order to cover up the Church's role in the break-in, and were delivered to Weigand, who took them to Heldt.

Item 152 called for the seizure of Guardian Order 1361 which called for the infiltration of the IRS by agents of the Church, and the affidavit indicated that such Guardian Order could be located in the Information Bureau's files.

Item 158 is all documents of the IRS which relate to the Church marked "Confidential GO 1361 Material." The affidavit made clear that such material was obtained as a result of the burglaries of the IRS offices, and was sent to and seen at the Information Bureau in Los Angeles.

Items 153 and 154 concern Guardian Order 1634 and all Guardian Orders issued pursuant to Guardian Order 1634 which would be identified as Guardian Order 1634- (number). The affidavit indicates that these orders related to the obtaining of government documents which the government refused to release under the FOIA.

Items 155 and 156 called for the seizure of all Guardian Orders identified as "Snow White" and those issued pursuant to "Snow White," which would be identified by the mention of "Snow White." The affidavit indicates that this program was directed against the government. Furthermore, the Court of Appeals expressly found probable cause for the seizure of such items. In re: Search Warrant Dated July 4, 1977, supra 187 U.S.App.D.C. at 303, 572 F.2d at 327.

Item 157 is all documents in the Operations files concerning Robert Snyder. The affidavit indicates that illegal operations were directed against this individual who is identified as a newscaster critical of the Church. Aff. at 10.

Items 159 and 160 call for the seizure of all documents attached to a memorandum from Hermann or Meisner signed "Mitch" or "Mike." The affidavit establishes that such memoranda were sent to officials of the Guardians Office with stolen government documents attached. .

Item 161 concerns all documents marked Non-FOI. The affidavit indicates that such documents are the result of burglary and theft.

Finally, item 162 calls for the seizure of "any and all fruits, instrumentalities, and evidence (at this time unknown) of the crimes of conspiracy, obstruction of justice and theft of government property in violation of 18 U.S.Code §§ 371, 1503 and 641 which facts recited in the accompanying affidavit make out." The Court of Appeals expressly upheld the validity of this clause under the authority of Andresen v. Maryland, 427 U.S. 463, 96 S. Ct.

2737, 49 L. Ed. 2d 627 (1976). In re: Search Warrant Dated July 4, 1977, supra 187 U.S.App.D.C. at 303-304, 572 F.2d at 327-28.

The defendants also contend that the warrants lacked probable cause because the information in the affidavit was stale. With respect to both Los Angeles locations, the affidavit indicates that Meisner was a trusted member of the Information Bureau; that he was told by other Information Bureau officials where files were located; that such documents were kept as a part of the Church's desire to maintain a permanent history for the Church; that such documents were essential to the operations of the Information Bureau; and that he personally watched many Information Bureau officials locate and retrieve files. Meisner confirmed his information merely twenty-eight days before the search warrants were approved by the magistrate. Aff. at 28-29. Plainly, the information was not stale. Moreover, where documents are concerned, the doctrine of staleness has a limited role. Unlike consumable or disposable items it is reasonable to expect that documents will be maintained. See Andresen v. Maryland, 427 U.S. 463, 478-79, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976).

Finally, the defendants contend that the warrant failed to indicate where documents were to be seized. The warrant for the Cedars-Sinai Complex specified the Information Bureau where most of the files and offices were located. The warrant for Fifield Manor specified the sixth-floor suite of Henning Heldt where copies of the program files were located and numerous documents were sent. Aff.

at 7 n.7, 17, 18, 29-30. Furthermore, both warrants gave general directions as to where the offices would be located based on information from the informant.

Accordingly, the Court finds that the government submitted to the magistrate extremely detailed and elaborate support for the search warrants in this case, and such support was sufficient as a matter of law.

IV. THE AFFIDAVIT WAS AVAILABLE TO THE SEARCHING AGENTS AND TO officials of the church.

The defendants contend that the searches were invalid because the affidavit in support of the warrant was "unavailable for guidance for the executing agents .

. . " Motion to Suppress at 57 (January 15, 1979). The defendants' contention is unsupported by the evidence. No less than fourteen witnesses before the Court directly disputed the defendants' claim. Affidavits were available for the searching agents.

The defendants also contend that the searches were illegal because the Church officials were served with only the warrant and not the affidavit. Evidence at the hearing indicated that Church representatives were told that the Magistrate had placed the affidavit under seal. Trans. of July 9, 1979 at 217 (testimony of Barry Weissman). Furthermore, representatives of the Church obtained copies of the affidavit at the Courthouse by 10 A.M. on the morning of the search. Trans.

of July 11, 1979 at 214 (testimony of Luther Shaffer). Moreover, failure to serve even the warrant is merely a ministerial violation of Rule 41(d) of the Federal Rules of Criminal Procedure and would not render the search fatally defective. See United States v. Klapholz, 17 F.R.D. 18 (D.C.N.Y.1955), aff'd., 230 F.2d 494 (2d Cir. 1956), cert. denied, 351 U.S. 924, 76 S. Ct. 781, 100 L.

Ed. 1454 (1956). Accordingly, the searches are not in violation of law on the ground that the affidavit was not served along with the warrant.

V. THE AGENTS DID NOT USE EXCESSIVE FORCE IN THE COURSE OF THE SEARCHES.

Section 3109 of 18 U.S.C. provides:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

A. The Cedars-Sinai Complex.

At the Cedars-Sinai Complex FBI agents appeared at the main gate at 6:00 A.M.

and the yard was empty. Trans. of August 23, 1979 at 164. The agents rang the buzzer and the night caretaker came outside. The agent in charge announced that it was the FBI and they had a warrant to serve. The caretaker hesitated and the FBI cut the bolt. The agents proceeded inside to the double doors to what ultimately proved to be the Information Bureau which was locked. The buzzer to those doors was pressed and a man from inside opened those doors. For the next two hours, the agents tried in vain to have keys supplied to the inner offices.

Trans. of July 10, 1979 at 57-62 (testimony of Patricia MacDonald). Initially, a deadline of 7:00 A.M. was set. This deadline was extended to 8:00 A.M. before the forcible entry into the Information Bureau was made. Id. at 37, 57-62;

Trans. of August 27, 1979 at 235-37.

In the Action Bureau, Church representatives were given until 7:00 A.M. to obtain keys, and all but one door was opened with keys provided by a Church member. Trans. of August 27, 1979 at 93-94.

Finally, in the basement, the agents waited until 8:00 A.M. for keys and then snapped about eight padlocks. Trans. of August 27, 1979 at 104.

B. The Fifield Manor.

Meanwhile at the Manor, the agents arrived at 6:00 A.M., entered the lobby area, identified themselves, and announced their purpose. Trans. of July 20, 1979 at 6002- 03. Trans. of July 5, 1979 at 228-29 (testimony of Peter Mead). The agents took the elevator directly to the sixth floor and were confronted by "accordion bars" preventing their exit into the sixth floor. Trans. of July 20, 1979 at 6004. The agents announced their presence, tried to open the gate, and waited one minute and fifteen seconds before cutting the padlock. Id. at 6004-05. About six minutes from the time of entry, after an attempt to obtain keys failed, the outer door to the office of Henning Heldt was forcibly opened. Id. at 6006-07;

Trans. of July 6, 1979 at 62 (testimony of Christopher Ward). From about the time of their entry to the sixth floor, an alarm was sounding. Trans. of July 6, 1979 at 61 (testimony of Christopher Ward).

The refusal of admittance required by section 3109 need not be explicit. United States v. Allende, 486 F.2d 1351, 1353 (9th Cir.), cert. denied, 416 U.S. 958, 94 S. Ct. 1973, 40 L. Ed. 2d 308 (1973). There is no set time an agent must wait for a response, but such time must depend on the circumstances of the case.

United States v. Phelps, 490 F.2d 644, 647 (9th Cir.), cert. denied, 419 U.S.

836, 95 S. Ct. 64, 42 L. Ed. 2d 63 (1974); United States v. Allende, supra at 1353. The nature of an exigency is one circumstance which is to be considered in determining compliance with the statute. United States v. Agrusa, 541 F.2d 690, 701 (8th Cir.) cert. denied, 429 U.S. 1045, 97 S. Ct. 751, 50 L. Ed. 2d 759 (1976). Where sounds indicating the possible destruction of evidence are heard, the statute need not be complied with. United States v. Guidry, 534 F.2d 1220, 1223 (6th Cir. 1976); United States v. Manning, 448 F.2d 992, 1001-02 (2d Cir.), (en banc), cert. denied, 404 U.S. 995, 92 S. Ct. 541, 30 L. Ed. 2d 548 (1971).

Essentially the test, under both the statute and the fourth amendment, is one of reasonableness as to both the entry itself and the scope of the force exercised in order to complete that entry. See United States v. Murrie, 534 F.2d 695, 698 (6th Cir. 1976); United States v. Fernandez, 430 F. Supp. 794, 800 (N.D.Cal.1976).

Applying the law to the facts of this case, the Court finds that the agents complied with the requirements of section 3109. In the Cedars-Sinai Complex, the front gate bolt was not clipped until the night caretaker hesitated in his progress towards opening the gate. Based upon the nature of the charges in the warrant and affidavit and the sophistication of the organization shown in these same documents, it was reasonable for the agents to fear that an alarm could have been or was about to be set off which would trigger the destruction of evidence. After the initial entry, the agents illustrated remarkable patience, as all of the other locks and doors in the Cedars-Sinai Complex remained intact for at least an hour. Forcible entry was not made until Church representatives refused to permit entry.

In the Fifield Manor, the time prior to entry was considerably less. However, the agents had more concrete evidence that a system signaling the destruction of evidence may have been activated: an alarm sounded upon their entry to the sixth floor. Under such exigent circumstances, even silence can be taken as a refusal to permit entry. In this case, however, there was more. The representatives on the scene had already indicated to the agents that they did not have keys.

Therefore, the explicit requirements of the statute were met. Under the circumstances of this case, their actions were entirely reasonable.

The Court finds that the agents used reasonable force in opening doors and locks. Minimization was attempted: the use of electric drills was attempted instead of sledgehammers, but the drill bits snapped. Trans. of August 23, 1979 at 37, 53.

The Court finds that the agents conducting the searches in California complied with section 3109 and the fourth amendment. The behavior of the agents was eminently reasonable with respect to the timing and scope of their forcible entries including outside doors, inside doors, filing cabinets, and desks. No excessive damage was inflicted.

VI. CHURCH PERSONNEL WERE ALLOWED TO OBSERVE THE SEARCH.

Rule 41(d) of the Federal Rules of Criminal Procedure requires that an inventory of the seized property be made in the presence of applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person. At the Fifield Manor location, representatives of the Church were allowed to observe the agents searching and making the inventory. Trans. of July 6, 1979 at 323-24 (testimony of Craig Jenson); Trans. of July 7, 1979 at 196, 202, 204-08, 224-26 (testimony of Norman Taylor). In the Cedars-Sinai Complex, representatives of the Church were allowed to move freely throughout the complex prior to 9:00 A.M. Trans. of July 13, 1979 at 119 (testimony of Heber Jentzsch); Trans. of July 12, 1979 at 23 (testimony of Janet Miller); Trans. of July 12, 1979 at 157/B (testimony of David Butterworth). In the Information Bureau, from 9:00 A.M. until the afternoon representatives were excluded. Trans. of July 11, 1979 at 203 (testimony of Luther Shaffer). This exclusion was made because a group of about 10-20 members of the Church entered the Information Bureau prior to 9:00 A.M.

with brooms and mops endangering the safety of the agents and interfering with the performance of their duties. See Trans. of July 12, 1979 at 159, 161, 168 (testimony of David Butterworth); Trans. of August 27, 1979 at 233-34. In the afternoon, tours through the Information Bureau for Church representatives were conducted by the agents about every half hour. Trans. of July 9, 1979 at 240-41 (testimony of Barry Weissman); Trans. of July 11, 1979 at 202-03, 221 (testimony of Luther Shaffer). Accordingly the Court finds that the government fully complied with Rule 41(d). Moreover, it is interesting to note that failure even to complete an inventory is merely a ministerial violation which does not affect the validity of the search. Reisgo v. United States, 285 F. 740, 741 (5th Cir.

1923). See Nordelli v. United States, 24 F.2d 665, 667 (9th Cir. 1928); United States v. Hooper, 320 F. Supp. 507, 509-10 (E.D.Tenn.1969), aff'd., 438 F.2d 968 (5th Cir.) cert. denied, 400 U.S. 929, 91 S. Ct. 189, 27 L. Ed. 2d 190 (1970).

VII. THE SCOPE OF THE SEARCHES WERE REASONABLE AND NOT GENERAL.

To a significant extent, the defendants' posture in this case is twisted. The government has indicated it will seek to introduce into evidence at the trial of this case 201 documents seized at the searches in California.

[**38] The defendants have made no attempt to directly challenge the legality of the seizure of these case-in-chief documents. In fact, they have introduced exhibits which illustrate their opinion that 95% of the case-in-chief documents were described in the warrant, and thus properly seized. See Submission of List of Case-In-Chief Documents with Gennet Classification and United States Response to that Classification (August 15, 1979). Moreover, they contend that it is the Court's duty to examine each and every document seized during the searches to determine the validity of its seizure, while indicating their belief that it would be error for the Court to look at the case-in-chief documents prior to trial. Compare Trans. of August 29, 1979 at 406, with, Motion for Return of Government's Indexed Case-in-Chief Documents (September 4, 1979) and Motion to Strike Appendix to Government's Analysis of Case-in-Chief Documents Compared to Ginnet Evaluation (September 4, 1979). Thus, it is the defendants' somewhat bizarre "theory of the case," that the Court is to decide whether the government can introduce the 201 case-in-chief documents at trial be examining everything seized during the search except the 201 case-in-chief documents.

In the usual case, the defendant directly challenges the validity of the seizure of the evidence which the government seeks to introduce at trial. Most defendants proceed in this manner because seizures are separable. Each item the government seeks to introduce into evidence is examined separately; those seized improperly are suppressed, while those seized properly are not suppressed.

Merely because some evidence is seized beyond the scope of the warrant does not taint that evidence which has been properly seized. See e. g., United States v.

Castle, 213 F. Supp. 56 (D.D.C.1962), aff'd., 120 U.S. App. D.C. 398, 347 F.2d 492 (1964), cert. denied, 381 U.S. 929, 953, 85 S. Ct. 1568, 1811, 14 L. Ed. 2d 687, 726 (1965); Brooks v. United States, 416 F.2d 1044, 1049-50 (5th Cir.

1969), cert. denied, 400 U.S. 840, 91 S. Ct. 81, 27 L. Ed. 2d 75 (1970); 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, 407 U.S. 909, 92 S. Ct. 2433, 32 L. Ed.

2d 683 (1972); United States v. Mendoza, 473 F.2d 692, 696 (5th Cir. 1973);

United States v. Artieri, 491 F.2d 440, 445-46 (2d Cir.), [**40] cert.

denied, 419 U.S. 878, 95 S. Ct. 142, 42 L. Ed. 2d 118 (1974); United States v.

Daniels, 549 F.2d 665, 668 (9th Cir. 1977); United States v. Forsythe, 560 F.2d 1127, 1134 (3d Cir. 1977).

For the purposes of this case, the key in this line is Andresen v. Maryland, 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). In Andresen, the Supreme Court affirmed the conviction of the defendant on one count of false pretenses and three counts of misappropriation by a fiduciary. Id. at 469, 484, 96 S. Ct.

2737. The defendant challenged the reasonableness of the searches and seizures from his corporation and his law office. Id. at 467, 96 S. Ct. 2737. A single document from the corporation, and seventeen items from his law office were introduced into evidence at his trial. Id. There was evidence that between 2% and 3% of the files in the law office were seized and less than 5% of the corporation's files were seized. Id. at 466-67, 96 S. Ct. 2737. Of the 52 items seized from the offices of the corporation, 45 were returned and the trial court suppressed six. Of the 28 items seized from the law office, seven were returned and four were suppressed. Id. at 467, 96 S. Ct. 2737. In the course of its opinion, the Court observed, "The record discloses that the officials executing the warrants seized numerous papers that were not introduced into evidence.

Although we are not informed of their content, we observe that to the extent such papers were not within the scope of the warrants or were otherwise improperly seized, the State was correct in returning them voluntarily and the trial judge was correct in suppressing others." Id. at 482, 96 S. Ct. at 2749 n.11. Thus, the Court explicitly approved a document-by- document approach.

Those properly seized could be used in evidence even though at the offices of the corporation only one of the 52 items seized was ultimately determined to be properly seized. Therefore, Andresen can be read to hold that even if most of the documents seized by a valid warrant have not been properly seized, those properly seized can be introduced into evidence at trial.

The defendants filed a special pleading just to meet the challenge Andresen presents to their "theory of the case." Defendants' Memorandum on the Applicability of Andresen v. Maryland to these Proceedings (August 24, 1979). In order to counteract the Andresen holding, the defendants cite essentially five cases. Each of these cases can be easily distinguished.

In Kremen v. United States, 353 U.S. 346, 77 S. Ct. 828, 1 L. Ed. 2d 876 (1957) (per curiam) the entire contents of the defendants' cabin were seized without a search warrant. Id. at 347-48, 77 S. Ct. 828. An eleven-page appendix detailing the personal items seized accompanies the opinion. Id. at 349-59, 77 S. Ct.

828. The Court held that the convictions must be set aside because evidence from the cabins was introduced at trial. However, the Court recognized that "the evidence seized from the persons of the petitioners might have been legally admissible." Thus, the Court did not refuse to distinguish between what was properly and improperly seized. Of course, in this case there are search warrants.

In United States v. Rettig, 589 F.2d 418 (9th Cir. 1978), federal agents sought to obtain evidence of a massive cocaine conspiracy. Id. at 420. A federal Magistrate declined to issue the search warrant. Id. The next day, the agents went to a state court judge and sought a warrant to seize evidence of possession of marijuana. Id. The Ninth Circuit found that the warrant was used as an instrument for conducting the search for which permission had been denied on the previous day, and that the actual search pertained to evidence of the cocaine charge, not to the possession of marijuana. Id. at 412. The court did not refuse to permit the introduction of properly seized evidence. Instead, the court ruled that under the circumstances, such a determination was impossible. Id. at 423.

In this case, as the defendants have admitted in their pleading, it is possible to determine which discrete items of evidence were within the bounds permitted by the warrant. Thus, Rettig is completely inapposite.

In Application of Lafayette Academy, Inc., 462 F. Supp. 767 (D.R.I.1978), the court ruled that the warrant was a broad and general warrant; thus, severability was not permitted. Id. at 772. This Court has determined that the warrant in this case was not defective.

The defendants' citation of VonderAhe v. Howland, 508 F.2d 364 (9th Cir. 1975) can be described as disingenuous at best. In VonderAhe, agents arrived at the home and office of a dentist suspected of tax fraud and removed "practically every piece of paper they could lay their hands on." Id. at 365. The government had information that [**44] the dentist kept two sets of books one for audits (white) and one for actual receipts (yellow sheets and green cards). Id. at 366. Despite the fact that the agents knew what they were looking for and where it was, the warrants were extremely broad. Id. The agents in executing the warrants made a room-by-room search of the premises including the purse of a Mrs. Perez who was visiting the dentist's wife. Id. at 367. The Court found that there was no probable cause for the issuance of the warrants except for the yellow sheets and green cards, id. at 369, and that the warrants were general warrants. Id. at 366. What remedy did the Court provide to the dentist? The Ninth Circuit in VonderAhe ordered all of the seized property returned except for the yellow and green cards. Id. at 372. One could not imagine a more persuasive case for severability than VonderAhe: despite an invalid warrant, and seizure of every piece of paper in a man's home and office, the Court ordered only the return of the improperly seized material. The following language in the case is instructive:

The VonderAhes have asked us to invoke in their favor what has become known as the "exclusionary rule," i. e., to decree at this time that all records seized, including yellow sheets and green cards and any leads therefrom cannot be introduced in any proceeding, civil or criminal against them. However, if the facts are, as represented, that the taxpayers by their own wrong, deliberately concealed income and failed to pay taxes thereon, it would seem to be the height of inequity for the courts to enable them to profit thereby. Using equity as the standard, the warrants as issued restricted to the yellow sheets and green cards would have been reasonable; beyond these records they were too broad. Although the manner of execution was quite unjustified, the penalty of exclusion which the taxpayers would impose is equally unjustified. Our present task is to place the government's allegedly unlawful procedure in obtaining and executing the warrants and the VonderAhes' allegedly unlawful concealment on the mythical scales of justice, and observe the balance. Observing this balance (or possibly imbalance), we believe that justice can best be achieved by reversing the District Court dismissing the complaint and, upon remand, directing the District Court to grant the injunctive relief sought by appellants except as to the yellow sheets and green cards, copies of which the government may retain and use subject, however, to any and all objections thereto, including objections based on the Fifth Amendment, in any proceeding, civil or criminal, which may be raised by the VonderAhes.

Id. at 372 (emphasis added).

Finally, the defendants rely on Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979) which involves the seizure of magazines, films, and other objects from a bookstore on the basis of a New York obscenity statute. Id. at 2321. An investigator purchased two reels of film from a bookstore which he believed to be obscene. Id. at 2322. He took the film to a Town Justice for a search warrant. The Town Justice agreed that the films were obscene and drew up a warrant for the seizure of the films. The Town Justice then proceeded to the bookstore with some state police investigators to view the other material in the store. The Town Justice viewed and found to be obscene 23 films, 4 peep-shows, and 397 magazines. Id. at 2322-23. As each item was seized, it was logged on the warrant. The Court held that the warrant was invalid because it did not even purport to describe particularly the things to be seized, Id. at 2324, and was a general warrant. Id. Furthermore, the Court found that the Town Justice did not manifest that neutrality and detachment required of a judicial officer when presented with a warrant for a search and seizure.

Id. In the case before this Court, the warrant was proper and there is no allegation that the Magistrate lacked the neutrality and detachment required of a judicial officer.

Accordingly, the defendants' attempt to force the Court to focus exclusively on the material seized which is not being put into evidence is misguided. The cases relied on by the defendants show that where the warrant is valid, and severability is possible, only material which has been illegally seized is suppressed.

Nevertheless, some cases not cited by the defendants' team of attorneys do provide that at some point an entire search may become so unreasonable that its unreasonableness infects the seizure of each and every item asported. United States v. Fernandez, 430 F. Supp. 794, 801 (N.D.Cal.1976); United States v.

Leta, 332 F. Supp. 1357 (M.D.Pa.1971). Accordingly, the Court shall examine the reasonableness of the entire search to be completely certain that justice is done in this case.

A. The Standard to be Applied.

The defendants argue that the standard to be applied to the searches of the Church's premises is "scrupulous exactitude." In support of this contention the defendants rely on the Supreme Court's decision in Stanford v. Texas, 379 U.S.

476, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965). In Stanford, Texas law enforcement officers obtained a warrant to search for evidence of violations of the Texas Suppression Act which outlawed the Communist Party. Id. at 477, 85 S. Ct. 506.

The officers gathered up about half the books they found in the house including works of Karl Marx, Jean Paul Sartre, Theodore Draper, Fidel Castro, Earl Browder, Pope John XXIII and Mr. Justice Hugo L. Black. Id. at 479-80, 85 S.

Ct. 506. The officers also seized private papers and documents including a marriage certificate, insurance policies, household bills and receipts and personal correspondence. Id. at 480, 85 S. Ct. 506. Although the warrant called for the seizure of, among other things, "records of the Communist Party" and "party list and dues payments," no such material was found. Id. at 480, 85 S.

Ct. 506. The petitioner moved for the return of this property. Id. The Court ordered it returned on the ground that the warrant was a general warrant. Id. In the course of its opinion, the Court held that:

the constitutional requirement that warrants must particularly describe the "things to be seized" is to be accorded the most scrupulous exactitude when the "things" are books, and the basis for their seizure is the ideas they contain.

Id. at 485, 85 S. Ct. at 511-512 (emphasis added). Thus, the particularity of a warrant must meet the scrupulous exactitude test when the items to be seized are books, and they are sought for the ideas they contain. Id. To make perfectly clear that the latter condition was not to be ignored, the Court in Stanford added the following footnote:

The word "books" in the context of a phrase like "books and records" has, of course, a quite different meaning. A "book" which is no more than a ledger of an unlawful enterprise thus might stand on quite different constitutional footing from the books involved in the present case. . . . And in some situations books even of the kind seized here might, for the purposes of the Fourth Amendment, be constitutionally [**50] indistinguishable from other goods e. g., if the books were stolen.

Id. at 485 n.16, 85 S. Ct. at 512 n.16. Thus, in order to determine whether the warrant in this case must meet the scrupulous exactitude standard, the Court must decide whether the documents sought were wanted for the ideas they contain.

Based on the warrant and affidavit, it is clear that no documents were sought for the ideas they contain. In fact, the memoranda sought are classic examples of "ledger(s) of an unlawful enterprise" and "stolen" written material. The warrant sought hundreds of documents allegedly stolen from the government, and written material which allegedly detailed the planning, operation, and handling of such stolen material, as well as material prepared in order to cover up these actions. These documents were not sought as obscene or communist material; they were merely sought as contraband and ledgers of an unlawful enterprise.

Therefore, the scrupulous exactitude test cannot be invoked. Merely because the defendants kept their offices in a building belonging to the Church of Scientology does not insulate their actions from the process of law.

The point is made even clearer by comparing the defendants' contentions with the Supreme Court's decision in Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.

Ct. 1970, 56 L. Ed. 2d 525 (1978). There, a warrant had been issued for the seizure of photographs of demonstrators at the Stanford University Hospital. Id.

at 1974. The photographs had been taken by a Stanford student; who was at the demonstration as a reporter for the Stanford Daily, a student newspaper. Id. The warrant affidavit contained no indication that members of the Daily staff were involved in any unlawful acts. Id. at 1974. Thus, they were innocent bystanders.

Furthermore, the material sought was a third party's photographs of a newsworthy event, rather than ledgers of a criminal enterprise or contraband. In this case, the premises were not those of innocent third parties but those of people about whom there was probable cause to believe involvement in numerous criminal activities. Furthermore, the items sought by the warrant did not result from protected first amendment activity, as did the photographs in Zurcher. The material sought in this case was not obtained through newsgathering. Instead, there was probable cause to believe it was stolen through burglaries of government offices. These allegedly stolen documents, memoranda detailing the plans to obtain and then hide their theft, bear only a remote relationship to materials seized in Zurcher. Accordingly, the defendants have failed to make out any facts which would require the application of the scrupulous exactitude test.

Although the Court rejects the defendants' attempt to invoke a higher standard, the Court recognizes that the true standard, reasonableness, is not a mechanical one. The nature of the material sought, and its location, are important elements in the application of the test. Although the scrupulous exactitude test does not apply, the Court has examined the facts and circumstances of this case with the utmost care in order to determine the reasonableness of the government's actions in conducting these searches. Of course, the government is required to act with more care than if they were looking for heroin in a tool shed. What would be reasonable there would be [*226] inadequate in a search for documents in a Church.

B. The Geographical Scope of the Search.

The defendants contend that the agents conducted general and exploratory searches outside the geographical bounds of the warrants. The facts do not support the defendants' contention.

The warrant for the Fifield Manor described the premises to be searched as follows:

Fifield Manor, 5930 West Franklin Avenue, Hollywood, California, more particularly on so much of the premises described below as consists of the suite of offices of Mr. Henning Heldt located at 5930 West Franklin Avenue, Hollywood, California, a seven-story Victorian building originally used as a hotel, known as "Fifield Manor," with entrance at the Franklin address as well as 1840 Tamarind Avenue. An information booth is located immediately within the main entrance and adjacent to the information booth is an elevator providing access to the upper six floors. The first through the fourth floors and approximately one-half of the fifth floor contain hotel-type rooms designed to house visiting students. Additionally, portions of the first floor are devoted to dining, cooking and recreation facilities as well as several offices used in hotel administration. The remaining half of the fifth floor, as well as the sixth and seventh floors, in their entirety, house the offices of the "Guardian Office U.S." of the Founding Church of Scientology in the United States. The office of Mr. Henning Heldt, the Deputy Guardian for the United States is located on the sixth floor, the last office on the left-hand side of the corridor.

Thus, the warrant called for the agents to enter the lobby, proceed via the elevator adjacent to the information booth to the sixth floor, and turn right off the elevator to the suite of offices of Henning Heldt. That is exactly what the agents did. Trans. of July 20, 1979 at 6003. The only other substantial activity in the Fifield Manor was the securing of the hallway outside the office of Henning Heldt for the protection of the agents and to prevent the destruction of evidence. Trans. of July 20, 1979 at 6008. Although there was testimony that agents may have quickly scanned some areas of the basement and elevator area of several floors, there is no credible evidence to indicate that any rooms were entered, or documents read. The agents were merely insuring that no interference would be mounted. See Trans. of August 22, 1979 at 28-29 (always secure area).

Certainly such minimal defensive activity cannot render the search of the Heldt suite a general search. Cf. Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (Court recognized that the personal security of police officer is to be factor in determination of reasonableness). n14 n14. In fact, the agents at the Manor must be complemented for the way they restricted their search. Certain defense counsel have argued that there was a room that was never entered only doors away from the Heldt suite which was plainly marked to indicate that it would contain "programs." It is defense counsel's contention that this oversight reflects poorly on those executing the warrant. However, the Court must disagree. It evidences the intention of those conducting the search not to let their attention be diverted and to stay within the four corners of the warrant.

The only controversial question with respect to the scope of the Fifield Manor search was the activity in Janet Lawrence's office and the telex room. In deciding this issue, the Court was greatly aided by the view of the premises taken at the defendants' request. As one enters the inner office of Henning Heldt, one is struck by the appearance of a hut across the terrace of the roof.

n15 Access to the hut is available through French doors in the Heldt office.

From the vantage point of an agent attempting to locate the boundary of the Heldt suite, it would be reasonable to assume that this hut, right outside the doors of the Heldt office, would be part of the suite. Much has been made of the strict definition of a "suite." Webster's Third New International Dictionary defines "suite" as "a series or group of things forming a unit or constituting a complement or collection: SET: as a (1): a group of rooms designed for occupancy as a unit." Since the nearest entrance to the hut was through the office of Henning Heldt, it was logical to assume that those offices formed a unit. In fact, Janet Lawrence testified that she, and her co-workers in the hut, had to use the restroom in the Heldt office. Trans. of August 29, 1979 at 326. She further testified that on the day of the search the office was unmarked; thus, there was nothing to indicate that it did not constitute part of the Heldt suite. Trans. of August 29, 1979 at 346-47.

Similar logic applies to the telex room. The only other entrance to the roof terrace is through French doors in the telex room. Together, Heldt's office, the telex room, and the hut form a logical collection of connecting rooms apparently designed for use as a single unit.

Furthermore, had the agents improperly strayed beyond the bounds of the Heldt suite, the remedy, at most, would be to suppress the evidence seized from these areas. The facts are that nothing was seized from the telex room, Trans. of July 21, 1979 at 6273, and no case-in-chief documents were seized from the office of Janet Lawrence. In this case, the agents, in good faith, came to the conclusion that the telex room and the hut were parts of the Heldt suite. Trans. of July 18, 1979 at 5637; Trans. of July 20, 1979 at 5988, 6120-26; Trans. of July 21, 1979 at 6270. To suggest that this decision rendered the entire search a general exploratory search is untenable.

The warrant for the Cedars-Sinai Complex described the premises to be searched as follows:

Cedars-Sinai Complex, 4833 Fountain Avenue, Hollywood, California, and more particularly on the first floor area housing the offices occupied by the Deputy Guardian for Information and his staff and personnel, in the premises described below:

A building complex known as Cedar-Sinai located at 4833 Fountain Avenue, Hollywood, California, previously known as the Cedars of Lebanon Hospital. The building is creme-colored concrete, multi-winged, and occupies the entire square block. It is surrounded by a six-foot chain link fence with barbed wire on top.

A blue sign on each of the four corners identifies the property as "Church of Scientology." The building is eight stories high with a ten- story central tower. On the south of the building is Fountain Avenue, on the north is Sunset Boulevard, on the east is Berendo Street, and on the west is Catalina Street.

The only entrance is through a guarded gate on Catalina Street.

Instantaneous with their entry into the Cedars Complex, the agents attempted to locate the Information Bureau. See Trans. of August 23, 1979 at 165. Their efforts were stymied by the unwillingness of the Church personnel to assist them in their attempt. Trans. of July 9, 1979 at 61-63 (testimony of Dennis Young);

id. at 182-83 (testimony of Christopher Lynch); Trans. of July 11, 1979 at 216 (testimony of Luther Shaffer). Preliminary search teams were dispatched throughout the building. These teams were to scan the entire building in order to secure the premises, determine who was present, and to locate the file cabinets described in the affidavit. Trans. of August 27, 1979 at 17-19. These teams were not to search file cabinets, but only report back what they found.

Id. at 19- 20.

As part of the preliminary search, the agents went to the basement of the Services Building when smoke was seen pouring from the boiler room. Trans. of July 9, 1979 at 189 (testimony of Christopher Lynch). The agents' concern was exacerbated by the statement in the search warrant affidavit that the boiler room posed a security risk to the Information Bureau. Trans. of August 23, 1979 at 116. The agents clipped padlocks after failing in their attempt to get keys to several rooms in the basement. Trans. of August 27, 1979 at 104. There is no evidence that anything was seized from these rooms.

Agents began searching an area labeled the "Action Bureau". Trans. of July 16, 1973 at 243-44. This area was in close proximity to the Information Bureau. The few documents seized from these offices were returned to the Church. Id. at 444-45. The agent in charge of searching this area had a good-faith belief that it was an annex of the Information Bureau while he was searching it. Id. at 244.

Finally, a telephone equipment room near the Information Bureau was forcibly entered by an agent who heard strange noises coming from the room. Defendants' Exhibit 543A.

Once again, in determining the reasonableness of the agents' actions, the Court is greatly assisted by the view of the premises performed at the defendants' request. The Cedars Complex is a mass of confusing corridors, tunnels, and offices. At the time of the search, the building was being fully renovated from a hospital to an office building. Many of the hospital signs had yet to be removed. The agents were unable to gain entry into the Information Bureau. The affidavit indicated that only the Information Bureau had moved into the complex.

Trans. of August 24, 1979 at 33. Scientology personnel failed to indicate the location of those offices to the agents. The size of the complex is enormous.

The agents had a duty to prevent the destruction of evidence. Together, these circumstances made a degree of confusion reasonable. In light of all these factors, the Court finds that the agents, in their search of the Cedars Complex, acted reasonably and in good faith. Thus, the geographical scope of the search did not render it general or exploratory.

The defendants also contend that any searches except for those of filing cabinets were outside the scope of the warrant. First, the warrants did not limit the searches to filing cabinets. In the Manor, it was limited to the suite of offices of Henning Heldt, and in the Cedars Complex it was the offices occupied by the Deputy Guardian for Information and his staff and personnel.

Second, nothing in the affidavit limited the location of the documents to filing cabinets. A fair reading of the affidavit would indicate that the documents described in the warrant could be found in places other than the filing cabinets. Finally, nothing in the Court of Appeals decision upholding the facial validity of the District of Columbia warrant limited its validity to filing cabinets. In re: Search Warrant Dated July 4, 1977, supra. Accordingly, the agents acted reasonably and in good faith, and did not exceed the geographical bounds of the warrant in searching desks, in/out baskets, etc., in the offices specified in the warrant.

VIII. THE SEIZURE BY THE AGENTS OF SOME ITEMS NOT WITHIN THE WARRANT DOES NOT REQUIRE THE SUPPRESSION OF ALL EVIDENCE SEIZED.

The Court will now turn to the issue on which defense counsel have spent most of their energies whether the seizure by the agents of documents outside the warrant requires the suppression of all evidence seized. In support of their legal contention, the defendants make the following factual arguments. First, the defendants contend that there was no attempt on the part of the government to restrict the searches and seizures to what was in the warrant. Second, the defendants contend that the vast majority of documents seized were outside the warrant. The Court finds that the government made good-faith and reasonable efforts to limit the searches and seizures to items within the warrants or otherwise legally seizable. Finally, the Court finds that the defendants have failed to sustain their burden with respect to the degree of documents seized outside the scope of the warrant.

A. The Government Made Reasonable Attempts to Limit the Search and Seizure to Items Legally Seizable.

In language especially appropriate for this case, the Supreme Court observed in Andresen v. Maryland, 427 U.S. 463, 480 n.10, 96 S. Ct. 2737, 2749 n.10, 49 L.

Ed. 2d 627 (1976):

The complexity of an illegal scheme may not be used as a shield to avoid detection when the state has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect's possession.

In order to determine the reasonableness of the government's conduct in this case, the Court must view the problem facing the government when the allegations in the affidavit became known. There was probable cause to believe that the leaders of a large religious organization were involved in complex, sophisticated conspiracies to illegally obtain government documents and to cover up their activities. The government had probable cause to believe that evidence of these and related crimes was located in the offices of the Church in two locations. The government had probable cause to believe that at one location there would be 250 filing cabinets with evidence of criminal activity. Due to the nature of the allegations, the reasonable thing to do would be to obtain the services of numerous agents of the Federal Bureau of Investigation (FBI) to conduct the searches, and to prepare these agents for their task by conducting an extensive briefing session. That is what the government did in this case.

On July 6, 1977, about 100 agents of the FBI were informed that they would be participating in a search two days hence. They were also told that their presence would be required at a briefing beginning in the morning of the following day. See e. g., Trans. of August 8, 1979 at 16.

The July 7, 1977 briefing began about 8:00 to 8:30 A.M., with a general briefing for about 100 agents who were to participate in the search the following day.

Trans. of July 16, 1979 at 94, 142-43. It lasted until about 5:00 P.M. Id. at 151. The speakers included the Assistant Director of the Los Angeles Field Office of the FBI, Agent Gebhardt; the agents who would be in charge of the searches at each location, Agents McCarthy and Lindbergh; the case agents for Los Angeles and Washington, D. C., Agents Tittle and Varley; and two Assistant United States Attorneys who were handling the case in the District of Columbia.

Id. at 158; Trans. of August 23, 1979 at 9; Trans. of August 17, 1979 at 80. The morning session involved a general discussion of the investigation up to that time, the physical set-up of the buildings, and the manner in which the search was to be conducted. Trans. of July 16, 1977 at 164. The agents were told that they were to be searching a church; they were informed of the priest-penitent privilege, and were told to act accordingly. Id. at 164, 231; Trans. of August 23, 1979 at 13; Trans. of August 22, 1979 at 21- 22. They were told that the Church of Scientology had over three million adherents and that they could expect unfavorable press coverage. Trans. of July 16, 1979 at 188. They were told that the members of the Church were peaceful, passive people and that violence would be unnecessary. Id. at 171-72. They were told that patience and restraint were needed. Id. at 171-72. They were told to initially secure the building because destruction of evidence was feared. Id. at 194-95. They were told what types of files to look for. Id. at 204. They were told to read the affidavit. Id. at 161. Each item in the description of property to be seized was discussed. Id. at 275. The agents were told that it was possible that they could find evidence which could be used for probable [**66] cause elsewhere. Id. at 277. They were told to be sure to prepare FD 302's, which are forms used by the FBI to log what is seized in a search. Id. at 230. They were told that the search would probably result in litigation. Id. at 217. Most of the agents summarized this advice with the word "professional," the agents were to conduct themselves in the highest professional manner. See e. g., Trans. of August 22, 1979 at 21.

Sometime before lunch, the copies of the affidavit were distributed. Trans. of July 16, 1979 at 145. An hour break was given to allow the agents to read the affidavit. Id. at 148, 153, 154. Following the break, there was a question and answer session. Id. at 148, 153, 225. Later, the meeting was divided into smaller groups according to the role the agents would be performing and where it would be performed. Id. at 144, 149, 153, 225. Thus, the entry teams for the Manor and Cedars met separately, as did the document search teams, and the photography teams.

On the day of the search, the warrant and affidavit were available to the agents. See note 13 supra. In addition, supervisory personnel, team leaders, and lawyers for the United States Attorney's Office and the FBI were available and often consulted. Trans. of July 16, 1979 at 288; Trans. of July 18, 1979 at 5575-76; Trans. of July 20, 1979 at 5999-6000, 6002, 6212; Trans. of July 21, 1979 at 6257, 6276, 6279, 6382; Trans. of August 16, 1979 at 122, 139, 166;

Trans. of August 17, 1979 at 215; Trans. of August 20, 1979 at 101; Trans. of August 21, 1979 at 111, 127-28; Trans. of August 22, 1979 at 55; Trans. of August 23, 1979 at 87; Trans. of August 24, 1979 at 148; Trans. of August 27, 1979 at 50; Trans. of August 28, 1979 at 102, 259-60.

As the search progressed in the Information Bureau at Cedars, it became apparent to the FBI supervisory personnel that the manpower on hand was inadequate.

Trans. of August 24, 1979 at 35. Therefore, additional agents were ordered to proceed to the scene. Id. at 35. Some of these agents had not attended the briefings of July 7. Id. at 35-36. Instead, they were given more limited briefings as they arrived, first by FBI supervisory personnel, and then by their team leaders. Id. at 36, 39, 89- 91, 126. The late-arriving agents' attention was directed especially to those items in the warrant which earlier agents had found to be prevalent in that area. Id. at 121. They were told to act in the utmost professional manner. Id. at 43. The warrant and affidavit were made available for these agents to read. Id. at 42. While searching, the warrant, affidavit, and FBI personnel were available for consultation. Id. at 43. The arriving agents were told that if they had any question, they were to consult with team leaders, other agents, and their superiors. Id.

The testimony adduced at the hearing showed that the agents understood the warrant and the affidavit, and made good faith and reasonable efforts to comply with them. The agents understood item 162 of the description of property. See e.

g., Trans. of August 21, 1979 at 143 (Agent Valencia: "162 dealt with obtaining instrumentalities and fruits of a conspiracy dealing with obstruction of justice and theft of government property as supported by the affidavit."); Trans. of August 16, 1979 at 195 (Agent Breen: "if there were other documents not listed in the description of property here that appeared to indicate a theft of Government property had occurred, . . . ."); Trans. of July 18, 1979 at 5496 (Agent Stovall: the objectives of the conspiracies were "to steal government documents."). In addition, the agents seized a very small percentage of the documents they went through. See e. g., Trans. of July 16, 1979 at 300 (less than 3%); Trans. of August 22, 1979 at 122 (1.5%); Trans. of August 22, 1979 at 52 (less than 1%).

The defendants have also argued that the agents exceeded the bounds of the warrant by taking photographs during the execution of the warrant. These photographs were taken by the FBI in order to accurately record the events of the search by showing that Church personnel could freely move about the premises, to show the condition of the premises before and after the search.

Trans. of July 17, 1979 at 504; Trans. of August 23, 1979 at 205; Trans. of August 24, 1979 at 15-16; Trans. of August 27, 1979 at 170; Trans. of August 20, 1979 at 148- 49. The defendants contend that such efforts to record the events of the day of the search violate the first amendment rights of the defendants.

The Court disagrees. If you can see it, you can photograph it, "since this amounts to nothing more than making a record, not differing essentially from a full written description." Prosser, Law of Torts at 809 (4th ed. 1971). The agents were legitimately on the premises to [**70] conduct the search and observe the people, and the conditions of the premises. Therefore, it was proper to take photographs. The Court finds that the creation of such a record is a good police practice.

Accordingly, the Court finds that the government, through its agents, made adequate, good faith and reasonable efforts to limit their seizures to evidence which could be properly seized.

B. The Defendants Have Failed to Show that Scope of the Seizures Was Unreasonable.

The "plain view" doctrine has received the Supreme Court's explicit approval.

See Coolidge v. New Hampshire, 403 U.S. 443, 464-72, 91 S. Ct. 2022, 29 L. Ed.

2d 564 (1971). In order to justify a seizure on plain view grounds, several conditions must be met. First, the initial intrusion which brings the agent within plain view of an article must be proper. Coolidge v. New Hampshire, supra at 465, 91 S. Ct. 2022. Second, the incriminating article must be noticed inadvertently. Id. at 467-71 & n.25, 91 S. Ct. 2022. Third, the article must be of an incriminating character which is evident immediately upon its discovery.

Id. at 465, 91 S. Ct. 2022.

Although none of the documents designated by the government to be used in its case-in-chief were seized under the plain view doctrine, the application of this concept to the searches is necessary in order to evaluate the defendants' claims with respect to the scope and breadth of the documents seized.

The defendants contend that the plain view doctrine is inapplicable to this case, because the search involved documents, the evidence was not incriminating, and their discovery was not inadvertent. The Court disagrees.

In this case, the initial intrusion which brought the documents within the plain view of the agents was proper. In order to execute the warrants, the agents were required to glance through the documents in the areas designated by the warrant.

n16 This case does not present the problem faced by the Supreme Court in Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969). In Stanley, the agents while searching for gambling paraphernalia came across movies which they viewed by using a nearby projector. Id. at 558, 89 S. Ct. 1243. In this case, the agents did not have to do anything to determine that the documents were incriminating except that which they were required to do to execute the warrants: look at documents. The agents in Stanley did not have to view a movie to locate gambling paraphernalia.

n16. The defendants contend that only item 162 in the description of property required the agents to glance through the documents. The Court must reject this contention. Many documents listed in the description of property would not be self-evident by merely glancing at the format and title. See e.g. items 149-51, 157.

The second requirement is that the discovery must be inadvertent. If the execution of the warrant is merely a subterfuge to search for other evidence, the plain view doctrine cannot be invoked. Coolidge v. New Hampshire, supra 403 U.S. at 469-71, 91 S. Ct. 2022. If the discovery is anticipated and the location is known, agents are compelled to obtain a warrant. Id. at 470-71, 91 S. Ct.

2022. There has been no credible evidence in this case to indicate that the agents knew in advance the nature or location of other incriminating evidence or that the warrant was obtained as a subterfuge. n17 n17. One Church witness testified that he stumbled into an FBI briefing unnoticed and overheard a supervisor telling a group of agents that their "cover" was that they were looking for stolen government documents, but they really were looking for anything related to the FBI, the Food and Drug Administration, the American Medical Association, and the Better Business Bureau. The Court does not find this testimony to be credible. Besides numerous other indicators, the witness made no mention of this incident in his contemporaneous notes that were produced at the hearing. Trans. of July 7, 1979 at 94.

Third, the article seized must be of an incriminating character. Immediately upon observing the article, the agent must have probable cause for its seizure.

See United States v. Williams, 385 F. Supp. 1400, 1405 (E.D.Mich.1974). During the search of a cabinet labeled "Confessional Formulary" in the Information Bureau, Special Agent Oppy came across a document n18 which is set out in its entirety in the margin. Trans. of July 17, 1979 at 448-49. After this seizure an order went out for agents to watch for documents marked "red box" because "red box" meant that some of the documents might have been stolen. See Trans. of August 27, 1979 at 73.

n18. "RED BOX DATA INFORMATION SHEET 1. What is Red Box data?

a) Proof that a Scnist is involved in criminal activities.

b) Anything illegal that implicates MSH, LRH.

c) Large amounts of non FOI docs.

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 the "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)"

Government Exhibit 38.

Aside from red-box data, a second large class of documents were seized under the plain view doctrine. These documents discussed infiltration and covert operations to obtain documents from private and state organizations. n19 n19. See e.g. Government Exhibit 111, a Guardian order which states:

"Program: . . . 12. Simultaneously with the above action, recruit and place operatives in the following places:

A. STL BBB B. STL Post Dispatch C. STL Globe 18. Obtain files on Scientology, using in-place operatives, from the following:

A. STL BBB, including Williams & Schmidt's offices B. STL Post, including Adams, McGuires' offices C. STL Globe including Bauman's and Shepard's offices . . . ."

The Court finds that the agents seizure of red box data, and evidence of covert infiltration of private and state organizations to obtain documents were reasonable. The agents, with knowledge of the warrant and affidavit, had probable cause to believe that this material was evidence of criminal activities. See United States v. DiGilio, 538 F.2d 972 (3d Cir.), cert. denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 739 (1976). Each and every element of an offense need not be made out beyond a reasonable doubt before evidence can be seized under the plain view doctrine. United States v. Williams, supra at 1405.

All that is required is probable cause that it is evidence of a crime. The Court finds that the seizure of these two large classes of material were reasonable.

n20 n20. Some physical evidence was also seized under the plain view doctrine. This included a loaded gun which was seized after the agents were unable to find its owner. Trans. of August 17, 1979 at 124-25.

Finally, the defendants contend that the plain view doctrine does not apply to searches for documents. The Court must reject this contention. In Marron v.

United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231 (1927), holding approved in Coolidge v. New Hampshire, supra 403 U.S. at 469 n. 26, 91 S. Ct.

2022, a ledger and certain bills were introduced into evidence [**76] in the criminal trial of the petitioner for violations of the National Prohibition Act.

Marron v. United States, supra at 193, 48 S. Ct. 74. The agents seized the bills and ledger while executing a search warrant for intoxicating liquors and articles for their manufacture. Id. The evidence showed that they searched for and found large quantities of liquor, some of which were in a closet, and that while in the closet, the agents noticed the ledger showing inventories of liquors, receipts, and expenses. Id. at 193, 48 S. Ct. 74. Beside the cash register, the agents found the bills. Id. The Court upheld the seizure. Id. at 199, 48 S. Ct. 74. Later cases stress that Marron involved the plain view doctrine. See Coolidge v. New Hampshire, supra 403 U.S. at 469 n. 26, 91 S. Ct.

2022.

This Court would not necessarily approve the holding in Marron. The care with which a document is examined must be an element in the finding that the plain view doctrine applies. See Commonwealth v. Hawkins, 361 Mass. 384, 280 N.E.2d 665 (Mass.1972); Commonwealth v. Bowers, 217 Pa.Super. 317, 274 A.2d 546 (1970).

If the agents in Marron were looking for liquor bottles and related equipment, there was no authority to read the ledger and bills to determine that they were incriminating. But, this case is not Marron. Here, the agents were required to glance through the documents to execute the warrant. Thus, incriminating documents can be seized if the three other general requirements are met as they are in this case. See also United States v. Parker, 530 F.2d 208, 211-212 (8th Cir. 1976) (address book and ledger seized in search incident to arrest); United States v. Maude, 156 U.S.App.D.C. 378, 481 F.2d 1062, 1069-72 (D.C.Cir.1973) (Robinson, J.) (identification cards seized during search for stolen money orders); United States v. Teller, 412 F.2d 374, 379 (7th Cir. 1969) (per curiam), cert. denied, 402 U.S. 949, 91 S. Ct. 1603, 29 L. Ed. 2d 118 (1970) (index cards seized during search for money); United States v. Cooper, 409 F.

Supp. 364, 368-69 (M.D.Fla.), aff'd., 542 F.2d 1171 (5th Cir. 1976) (records of illegal sales and recordkeeping seized during lawful examination of logbook of arms dealer).

The Court allowed the defendants to introduce evidence that they commissioned two "scientific" studies which found that about 70% of the documents seized were not within the warrant. Even ignoring the serious logistical problems, these studies offer little assistance to the Court. First, even if they properly measure the percentage of documents improperly seized, these figures alone would be legally irrelevant. See Andresen v. Maryland, supra. Second, by ignoring the plain view doctrine, they do not even purport to measure the percentage of documents legally subject to seizure. Finally, even accepting these theoretical errors, the Court finds the studies to be valueless due to basic analytical flaws in their interpretation of the warrant. For example, the defendants' "expert" insisted that Government exhibit 137 was outside the warrant. Trans. of August 29, 1979 at 215. The document is entitled "Re: Herb." The affidavit states that Meisner's code name was "Herbert." Aff. at 20 n.*. Furthermore, the document goes on to state that "(h)e wants the guards totally off, but for control purposes in monitoring exact actions, we are maintaining it with some additional freedom as he improves." The document is dated May 13, 1977. The affidavit states:

After June 14, 1976, Meisner was named National Secretary of the Church of Scientology and maintained an office at the Guardian's Office in L. A. However, when the Church discovered that a warrant had been issued for his arrest in D.C., he was removed from any official position with the Church, while retaining functions in an unofficial capacity. This situation continued until sometime in April, 1977 when Meisner indicated that he was tired of waiting and wished to be sent back to D.C. as soon as possible. When Meisner threatened to take the situation in his own hands, he was placed under twenty- four-hour guard and was repeatedly "audited" by the Church. On one occasion he was removed from one building to another handcuffed and gagged. On another he was apprehended by church members in Las Vegas and returned under their custody to Los Angeles where he was again placed under house arrest. (footnote omitted).

Item 162 of the description of property called for the seizure of "any and all fruits, instrumentalities, and evidence (at this time unknown) of the crimes of conspiracy, obstruction of justice and theft of government property in violation of 18 U.S.Code §§ 371, 1503 and 641 which facts recited in the accompanying affidavit make out." The Court finds that the document falls within item 162 of the description of property as evidence of the crimes of obstruction of justice and conspiracy.

Besides the studies, the defendants rely on In re Search Warrant Dated July 4, 1977, Misc. No. 77-951 (D.D.C. August 24, 1979) and contend that the mere fact that the government returned 40% of the seized documents to the Church indicates the amount that was improperly seized. In this case, the United States has represented to the Court that returned documents were deemed unnecessary. The Court has absolutely no reason to doubt the word of the government representatives in this case. In addition, this procedure was approved by the Supreme Court in Andresen v. Maryland, supra 427 U.S. at 482, 96 S. Ct. 2737.

Moreover, if the courts take the return of documents as an admission of error, such activity, which should be encouraged, would be chilled: the government will not return property out of fear that it will be interpreted as an admission of impropriety.

Accordingly, the Court finds that the defendants have failed to meet their burden of proof as to the scope of the seizures. Perhaps some documents were seized outside the warrants; however, some error must be expected and is entirely reasonable. There has been no showing that the degree of error was so egregious that the entire search was exploratory or unreasonable.

The defendants' arguments that the searches violated their procedural rights and that the government proceeded in bad faith are also rejected.

IX. CONCLUSION.

No one in our civilized society is pleased by searches of Churches lasting twenty hours and involving over 150 FBI agents. However, the fourth amendment does not provide a mechanical rule that prevents searches of certain places, at certain times, by more-than-so-many people. The bottom line is reasonableness.

Overall, the FBI agents who executed the warrants at issue in this case performed a very difficult job in a most reasonable manner. When the government has probable cause to believe that evidence of criminal activity is present in a particular place, government agents have a responsibility to pursue their investigation. It is most unfortunate that the information which came to the government in this case required that searches be conducted by numerous agents, for long hours, in buildings owned by a Church. However, the fourth amendment cannot become so inflexible that criminal activity can be completely insulated from our criminal justice system by the talismanic invocation of religion. We can only hope that never again in our history will the government be required to perform such an unseemly task.

The Court has examined the documents that the government intends to submit during its case in chief. The Court finds that there is no evidence to indicate that these documents were improperly seized: they are within the warrants and were seized from areas described in the warrants. The government is not barred by the fourth amendment from introducing these documents into evidence at the trial of this case.

Crim. No. 78-0401 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 474 F. Supp. 90; 1979 U.S. Dist. LEXIS 11995 June 1, 1979 SUBSEQUENT HISTORY: [**1] Motion to Require Government to Elect August 23, 1979.

COUNSEL: Earl J. Silbert, U. S. Atty., Raymond Banoun, Judith Hetherton, Timothy J. Reardon, III, Steven C. Tabackman, Asst. U. S. Attys., Washington, D. C., for the United States.

Leonard B. Boudin, Rabinowitz, Boudin & Standard, Michael Lee Hertzberg, New York City, for defendant Hubbard.

Philip J. Hirschkop, John D. Grad, Leonard S. Rubenstein, Hirschkop & Grad, P.

C., Alexandria, Va., for defendants Heldt and Snider.

Roger Zuckerman, Roger Spaeder, Lawrence A. Katz, Richard A. Stanley, Wendy Manz, Zuckerman, Spaeder & Taylor, Washington, D. C., for defendants Willardson and Weigand.

Michael Nussbaum, James Davenport, Ronald G. Precup, Nussbaum & Owen, Washington, D. C., for defendants Hermann and Raymond.

John Kenneth Zwerling, Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., for defendant Wolfe.

Leonard Koenick, Washington, D. C., for defendant Thomas.

OPINIONBY: RICHEY OPINION: MEMORANDUM OPINION On April 25, 1979, this Court issued an opinion resolving numerous pretrial motions and providing some background to this case in which eleven defendants are named in an indictment charging two conspiracies, obstruction of justice, illegal electronic eavesdropping, several burglaries, and thefts of government documents, and false declarations before a grand jury. United States v.

Hubbard, 474 F. Supp. 64 (D.D.C. 1979). At this time, the Court will rule on a series of motions filed by the defendant Gerald Bennett Wolfe.

I. BACKGROUND.

In the current indictment, Wolfe is named in seventeen counts. In Counts Three through Eight, Wolfe and others are charged with burglarizing the offices of various federal officials. In Counts Nine through Thirteen, Wolfe and others are charged with stealing government documents from these offices. In Count Twenty-three, Wolfe and others are charged with conspiring to obstruct justice.

In Count Twenty-four, Wolfe and others are charged with obstructing the due administration of justice. In Counts Twenty-five through Twenty-eight, Wolfe alone is charged with knowingly making false material declarations to the Grand Jury investigating the charges brought in this indictment.

At this time, the Court will resolve four motions filed by Wolfe: (1) motion to dismiss all counts; (2) motion to dismiss pursuant to Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), for [*93] wrongful use of his immunized Grand Jury testimony; (3) motion to dismiss Count Twenty-four of the indictment, or, in the alternative, to compel an election between Count Twenty-four and the perjury allegation; and (4) motion to quash because of abusive questioning before the grand jury and because of taint arising from the improper use of his grand jury testimony.

II. WOLFE'S MOTION TO DISMISS ALL COUNTS IS WITHOUT MERIT.

Wolfe has moved to dismiss all counts of the indictment in which he is named on the grounds that (1) the charges violate his plea agreement with the government;

(2) the government has violated his fifth amendment rights; (3) the government has equitably immunized him from prosecution; (4) the government has entrapped him into giving false testimony before the Grand Jury; and (5) the government has improperly subjected him to multiple prosecution and punishment.

A. The Indictment Does Not Violate the Plea Agreement.

On June 30, 1976, the defendant Wolfe was arrested and charged with violating section 499 of Title 18 of the U.S.C. for using a falsely made identification card to enter the United States Courthouse in [**4] Washington, D. C. The government offered to settle the matter if Wolfe would plead to a misdemeanor and cooperate with the government's continuing investigation. Rather than cooperate, Wolfe rejected the offer and pleaded guilty to a felony the misuse of a government seal in violation of section 1017 of Title 18 U.S.C. In exchange for his plea to the felony, the government "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." Plea Transcript at 2; See id.

at 12.

The defendant contends that Counts Three through Thirteen and Twenty-three and Twenty-four of the current indictment violate his plea agreement. Count Three charges Wolfe and others with violations of the District of Columbia burglary statute, 22 D.C.Code § 1801(b), in the office of the Internal Revenue Service (hereinafter, "IRS") Exempt Organization Division in January of 1976. Count Nine charges Wolfe and others with the theft of federal property in violation of 18 U.S.C. § 641 in the same office as Count Three in June of 1975. Counts Four and Ten charge Wolfe and others with burglary of and theft from the office of the IRS Exempt Organization Division in March of 1976. Counts Five and Eleven charge Wolfe and others with burglary of and theft from another office of the IRS Exempt Organization Division later in March of 1976. Count Six charges Wolfe and others with the burglary of the IRS Identification Room in March of 1976.

Counts Seven and Twelve charge Wolfe and others with burglary of and theft from the Office of the Associate Deputy Attorney General of the United States Department of Justice in April of 1976. Counts Eight and Thirteen charge Wolfe and others with the burglary of and theft from the IRS Office of International Operations in April of 1976. Count Twenty-three charges Wolfe and others with entering into a conspiracy to obstruct the investigation of the burglaries and thefts. County Twenty-four charges Wolfe and others with obstructing justice in violation of section 1503 of Title 18.

Each of these charges concerns offenses which did not occur in the courthouse, did not occur in the months of May or June of 1976, and are completely distinct from the offenses encompassed in the agreement entered into between the government and the defendant. The defendant's contention that there was a mutual understanding that he would be immune from further prosecution for all such offenses is not supported by the record. Before Judge Flannery the defendant indicated that the only promises made to induce his plea were immunity for the three courthouse incidents in May or June of 1976. Plea Transcript at 12.

Accordingly, the present indictment does not violate the agreement between the government and Wolfe.

B. The Indictment Should Not Be Dismissed For Fifth Amendment Violations.

Wolfe's second contention in support of his motion to dismiss all counts of the indictment is that the government violated his fifth amendment rights before the Grand Jury. In support of this contention, the defendant relies heavily on a remark of the Assistant United States Attorney which is significant only when quoted out of context. However, in the context in which the statement was made, it is clear that the assistant was simply telling the defendant that he no longer had a fifth amendment right with respect to the three incidents involved in the plea agreement. Before the Grand Jury Wolfe was told that: "You are here to give your truthful responses to our questions involving a matter that this grand jury is investigating. And as a citizen of the United States and having entered your plea of guilty to one of these instances and having the government bargain away in the plea agreement, it's (Sic ) right to charge you with everything it could charge you with as far (Sic ) those instances are concerned.

You no longer have a Fifth Amendment privilege; do you understand that?" Grand Jury Transcript at 17. n1 Throughout his appearance before the Grand Jury, Wolfe had ready access to his attorney who was immediately outside the room in which his testimony was being taken. He was warned that he could be charged with perjury if he answered falsely. Grand Jury Transcript at 10-11. He was instructed that if he had any questions concerning his rights he could consult with his attorney. Grand Jury Transcript at 13. In fact, at one point, Wolfe halted the proceedings to confer with his counsel and returned and proceeded to answer a question. Grand Jury Transcript at 220-21. At no time did Wolfe invoke the fifth amendment and refuse to answer a question during his appearance before the first Grand Jury. n2 Accordingly, the Court finds that, based on the totality of the circumstances, the will of the defendant was not overborne and his testimony was voluntary and was not obtained in violation of his fifth amendment rights. See United States v. Mandujano, 425 U.S. 564, 574-75, 96 S. Ct. 1768, 48 L. Ed. 2d 212 (1976).

Furthermore, the defendant's attempt to suppress his allegedly false testimony before the Grand Jury is misguided. Even if his testimony was compelled in violation of the fifth amendment, which it was not, suppression would not be available. According to the Supreme Court, "Under no circumstances, however, could he commit perjury and successfully claim that the Constitution afforded him protection from prosecution from that crime." United States v. Mandujano, supra at 570, 96 S. Ct. at 1772 Quoting United States v. Orta, 253 F.2d 312, 314 (5th Cir.) Cert. denied, 357 U.S. 905, 78 S. Ct. 1149, 2 L. Ed. 2d 1156 (1958) (emphasis added by the Supreme Court). As the Court has pointed out, "Our Legal system provides methods for challenging the Government's right to ask questions lying is not one of them." Bryson v. United States, 396 U.S. 64, 72, 90 S. Ct.

355, 360, 24 L. Ed. 2d 264 (1969). Accordingly, the Court finds that the fifth amendment rights of the defendant were not violated before the Grand Jury, and no testimony will be suppressed.

C. The Defendant Was Not Equitably Immunized From Further Prosecution.

Wolfe contends that the government should be compelled to abide by its misrepresentations before the Grand Jury. Thus, according to Wolfe, he should be equitably immunized from further prosecution. The Court finds that the government did not misrepresent the facts before the Grand Jury. See page 94, Supra. Without misrepresentation, the defendant's claim of immunity fails.

Accordingly, the Court finds that Wolfe was not equitably immunized from further prosecution.

D. The Defendant Wolfe Was Not Entrapped Into Lying Before the Grand Jury.

Wolfe contends that the perjury counts of the indictment must be dismissed because he was entrapped into lying to the grand jury. In order to meet the evidentiary threshold to merely obtain an entrapment instruction in the District of Columbia, there must be a foundation in the evidence in the light viewed most favorably to the accused, for a finding of inducement by a government agent, that is persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, pleas based on need, sympathy, or friendship, and any other government conduct which would create the risk of causing an otherwise unpredisposed person to commit the crime charged. United States v.

Burkley, 192 U.S.App.D.C. 294, 305, 591 F.2d 903, 914 (1978). Neither the defendant nor the government has proffered any evidence which would show that any government agent in any way even suggested in the slightest that Wolfe not tell the truth before the Grand Jury. On the contrary, he was continuously reminded that he should tell the truth and that any false statements he made would make him subject to criminal penalties. Grand Jury Tr. at 10-11.

Therefore, Wolfe fails to make out a claim of entrapment under the law as it now stands.

According to Wolfe, the only reason for calling him before the Grand Jury was to lay the foundation for a perjury prosecution. He contends, therefore, that his testimony was outside the scope of the Grand Jury's authority. In support of this contention, the defendant relies on a series of cases, the most recent of which was decided over fifteen years ago. United States v. Cross, 170 F. Supp.

303 (D.D.C.1959); United States v. Thayer, 214 F. Supp. 929 (D.Colo.1963);

United States v. Icardi, 140 F. Supp. 383 (D.D.C.1956); Brown v. United States, 245 F.2d 549 (8th Cir. 1957).

In United States v. Icardi, supra, the defendant was charged with perjury before a special subcommittee of the Congressional Committee on Armed Services. Id.

at 385. The subcommittee was investigating the disappearance and death of an American major in Italy during the Second World War. Icardi had been implicated, but there was no jurisdiction to punish him since he had severed his relationship with the service. Id. at 387. The Chairman of the subcommittee admitted that Icardi was called only to tell his side of the story or to enable a perjury prosecution because the subcommittee already had in its possession sufficient information on which to base its report to Congress. Id. at 388. The Court with Judge Keech sitting held that providing a forum in which to allow an accused to protest his innocence or to lay the foundation of a perjury prosecution are not valid legislative purposes. Id. Furthermore, the Court held that even if there were a valid legislative purpose, the questions were not material to the subcommittee's investigation. Id. at 389. According to the Court in Icardi, at the time the defendant was questioned, which was after the committee admittedly had all the information that was necessary to fulfill its function, the alleged perjurious answers were not material to the subcommittee's authorized investigation. Id.

In United States v. Cross, 170 F. Supp. 303 (D.D.C.1959), the defendant was being prosecuted for perjury before the Senate Select Committee on Improper Activities in the Labor or Management Field. Id. at 304. In this case, the defendant had been recalled to testify before the committee a second time for the sole purpose of strengthening the case against him for perjury. Id. at 309.

Judge Keech again held that the committee was not a competent tribunal and the statements were immaterial because the questions were not asked for the purpose of eliciting facts material to the committee's investigation. Id. at 310.

In both Icardi and Cross, it is important to note that the tribunals were legislative, raising the spectre of what Judge Keech referred to in Icardi as "legislative trial and conviction." Id. at 388, which "should not be condoned, as it denies to the accused the constitutional safeguards of judicial trial."

Id. at 389.

In Brown v. United States, 245 F.2d 549 (8th Cir. 1957), the defendant was charged with perjury before a grand jury in Nebraska. The court ruled that the grand jury, by asking the defendant questions concerning [**14] events in Missouri, exceeded its authority. Id. at 555. Therefore, the only possible purpose for the grand jury to inquire into those matters was to enable the defendant to be prosecuted for perjury. Id. The Court followed Icardi and overturned the conviction and held that the allegedly false answers were not material to the grand jury's investigation.

In United States v. Thayer, 214 F. Supp. 929 (D.Colo.1963), the court ordered a new trial for the defendant who was convicted of perjury before the United States Securities and Exchange Commission. The Court ruled that it was unfair to the defendant to recall him with a perjury prosecution in mind without informing him of their intentions. Id. at 932-33.

The Court finds these cases to be distinguishable from the case Sub judice, even if they still constitute good law. n3 First, the Grand Jury was plainly investigating crimes within its jurisdiction, therefore this case is unlike Brown. Second, this case involves a grand jury and does not involve the problem of legislative or administrative trials as do Icardi, Cross, and Thayer. Third, the defendant in this case had not previously given his testimony under oath when he was called before the Grand Jury as had the defendants in Thayer and Cross ; therefore, in this case, even if the prosecutor believed he was previously lying, he could hope that the defendant would tell a more truthful story once under oath. Unlike Brown, Icardi and Cross, the questions directed to Wolfe were material to the matters being investigated; there was no hint that the investigation had already been completed as in Icardi and Cross, or that the questions concerned matters outside the grand jury's authority as in Brown.

Finally, unlike Thayer, the defendant in this case was repeatedly warned that he could be prosecuted for perjury if he made false statements; thus, he was not misled in this regard. Grand Jury Transcript at 10-11. Accordingly, the Court finds that the defendant Wolfe was not entrapped into lying to the grand jury.

E. The Government Has Not Subjected Wolfe to Improper Multiple Prosecution and Punishment.

Wolfe contends that he has been the victim of multiple prosecution and punishment in violation of the double jeopardy clause of the fifth amendment.

According to the defendant, the charges in the present indictment arise from the same series of acts or transactions as those charged in the earlier case against Wolfe, and therefore the current indictment is improper. In Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), the Supreme Court pointed out that the established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment is whether each crime requires proof of a fact which the other does not. Id. at 166, 97 S.

Ct. 2221. Plainly, under this test the offenses involved in the plea agreement would be separate from those in the current indictment. See pages 93-94, Supra.

Accordingly, the Court finds that the present indictment does not violate the double jeopardy clause.

III. THE USE OF THE DEFENDANT WOLFE'S TESTIMONY DOES NOT VIOLATE KASTIGAR V.

UNITED STATES, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).

Wolfe has moved to dismiss the case against him on the ground that his compelled testimony before the Grand Jury will lead to the infliction of criminal penalties in violation of Kastigar v. United States, 406 U.S. 441, 92 S. Ct.

1653, 32 L. Ed. 2d 212 (1972). Since the Court has found that his testimony before the Grand Jury was not compelled, See page 94, Supra, the basis for this motion has been undermined. Accordingly, the motion of the defendant to dismiss pursuant to Kastigar is denied because there is no compelled immunized testimony involved in this case.

IV. THE FALSE DECLARATIONS AND OBSTRUCTION OF JUSTICE CHARGES AGAINST THE DEFENDANT WOLFE ARE SUFFICIENT TO WITHSTAND THE MOTION TO DISMISS.

Wolfe has moved to dismiss Count Twenty-four of the indictment which charges him with obstruction of justice in violation of 18 U.S.C. § 1503. In the alternative, Wolfe contends that the government must be compelled to elect between Count Twenty-four and the false declarations allegations which make up Count Twenty-five through Twenty-eight.

According to Wolfe, Count Twenty-four is defective because it merely charges the defendant with false declarations and fails to charge the defendant with the additional element of "obstruction to the court in the performance of its duty."

Citing Ex parte Hudgings, 249 U.S. 378, 383, 39 S. Ct. 337, 339, 63 L. Ed. 656 (1919). The Court has already ruled with respect to this issue with regard to the other defendants. See United States v. Hubbard, 474 F. Supp. 64, 75-77 (D.D.C. 1979). The exact same analysis resolves this motion for Wolfe.

Accordingly, Count Twenty-four will not be dismissed.

In the alternative, Wolfe contends that the government should be compelled to elect between Count Twenty-four and the false declarations counts. According to Wolfe, the charge of false declarations is a lesser-included offense of the obstruction of justice charge, and it would be inherently unfair to force the defendant to proceed to trial on multiple counts. The Court is not persuaded by this argument. Requiring defendants to stand trial on an offense as well as lesser-included offenses is standard practice and has been upheld by every court that has faced the issue. Albrecht v. United States, 273 U.S. 1, 11, 47 S. Ct.

250, 71 L. Ed. 505 (1927); United States v. Partin, 552 F.2d 621, 631 (5th Cir.), Cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977);

Catrino v. United States, 176 F.2d 884, 886-87 (9th Cir. 1949); United States v.

Walasek, 527 F.2d 676, 680 (3d Cir. 1975). Accordingly, the Court will deny Wolfe's motion to compel the election.

V. THE DEFENDANT WOLFE WAS NOT ABUSED BEFORE THE GRAND JURY.

Wolfe has moved to quash the indictment against him because of abusive questioning before the Grand Jury. The Court has examined the transcript of the Grand Jury proceedings and finds that the Assistant United States Attorneys' conduct was within the allowable limits. Therefore, the motion to quash will be denied.

ORDER In accordance with the Memorandum Opinion issued of even date herewith, it is, by the Court, this 31 day of May, 1979, ORDERED, that the motion of the defendant Wolfe to dismiss all counts be, and the same hereby is, denied; and it is FURTHER ORDERED, that the motion of the defendant Wolfe to dismiss pursuant to Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), for wrongful use of his immunized Grand Jury testimony be, and the same hereby is, denied; and it is FURTHER ORDERED, that the motion of the defendant Wolfe to dismiss Count Twenty-four of the indictment or, in the alternative, to compel an election between Count Twenty-four and the perjury allegation be, and the same hereby is, denied; and it is FURTHER ORDERED, that the motion of the defendant Wolfe to quash because of alleged abusive questioning before the grand jury, and because of alleged taint arising from the improper use of his grand jury testimony, be, and the same hereby is, denied; and it is FURTHER ORDERED, that the motion of the government to dismiss Count Six as to the defendant Wolfe be, and the same hereby is, granted.

MOTION TO REQUIRE GOVERNMENT TO ELECT The defendant Wolfe has moved the Court for an order requiring the government to proceed on only one of the perjury counts charged in Counts twenty-five (25), twenty- six (26), twenty-seven (27) and twenty-eight (28). According to the defendant, it is the government's theory that each alleged untruth to the Grand Jury was part of a single plan by the defendant, and his alleged co- conspirators, to cover up certain prior activities by the defendants. Count twenty-five (25) charges that Wolfe lied when he stated that his purpose in going to the D.C. Bar Association Library was to learn to do legal research.

Count twenty-six (26) charges that he lied when he stated that he went nowhere else on his first visit to the library than to the library and the men's room.

Count twenty-seven (27) charges that he lied when he stated that he and Foster carried case histories to the xerox machine and copied them while at the courthouse. Count 28 charges that he lied when he stated that he knew his companion at the D.C. Bar Association Library only as John Foster. The defendants charge that the government has taken the single story testified to by Wolfe, extracted at random four statements, and seeks to impose criminal liability for each.

The test approved by several circuits to determine the number of perjury charges permissible in a single story is: "If (the defendant) in fact told separate lies, each of which could have hindered the Grand Jury in its investigation, then he could properly be separately charged for each lie." Gebhard v. United States, 422 F.2d 281, 289 (9th Cir. 1970); See United States v. Williams, 552 F.2d 226, 228 (8th Cir. 1977); United States v. Doulin, 538 F.2d 466, 471 (2d Cir.) Cert. denied, 429 U.S. 895, 97 S. Ct. 256, 50 L. Ed. 2d 178 (1976);

United States v. Lazaros, 480 F.2d 174, 179 (6th Cir. 1973); United States v.

Tyrone, 451 F.2d 16, 18 (9th Cir. 1971); United States v. Andrews, 370 F. Supp.

365, 369 (D.Conn.1974).

The defendant Wolfe's purpose in going to the D.C. Bar Association Library, his movements within the building that night, what was photocopied, and how that photocopying was carried out on the three occasions he was allegedly in the U.S.

Courthouse, and the identity of his accomplice were each non-redundant relevant areas of inquiry. Proof of the falsity of each statement will require the government to prove distinct facts. Plainly, this is not a case of consistent responses to repeated or rephrased questions. Compare Masinia v. United States, 296 F.2d 871 (8th Cir. 1961) With United States v. Doulin, 538 F.2d at 471. The Court finds that each perjury count alleges a separate lie which could have hindered the Grand Jury in its investigation.

The defendants contend that such a result is simply unjust. However, the Court disagrees. There is a material difference between fabricating a scenario to cover one's tracks at every point, and lying on one fact to mislead a Grand Jury on a single aspect. For example, the possible penalty for protecting the identity of an accomplice versus manufacturing an entire story to protect a web of actions, motivations, and conspirators, should not necessarily be the same.

The phrase "declaration" in the perjury statute, 18 U.S.C. § 1623, plainly must be read to require such a result.

Accordingly, the motion of the defendant Wolfe to require the government to elect between the four perjury counts is hereby denied. United States of America v. Mary Sue Hubbard et al.

Crim. No. 78-0401 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 474 F. Supp. 64; 1979 U.S. Dist. LEXIS 12788; 4 Fed. R.

Evid. Serv. (Callaghan) 1076 April 25, 1979 COUNSEL:

Earl J. Silbert, U. S. Atty., Raymond Banoun, Judith Hetherton, Timothy J.

Reardon, III, Steven C. Tabackman, Asst. U. S. Attys., Washington, D. C., for the U. S.

Leonard B. Boudin, Rabinowitz, Boudin & Standard, Michael Lee Hertzberg, New York City, for defendant Hubbard.

Philip J. Hirschkop, John D. Grad, Leonard S. Rubenstein, Hirschkop & Grad, P.

C., Alexandria, Va., for defendants Heldt and Snider.

Roger E. Zuckerman, Roger C. Spaeder, Lawrence A. Katz, Richard A. Stanley, Wendy K. Manz, Zuckerman, Spaeder & Taylor, Washington, D. C., for defendants Willardson and Weigand.

Michael Nussbaum, James P. Davenport, Ronald G. Precup, Nussbaum & Owen, Washington, D. C., for defendants Hermann and Raymond.

John Kenneth Zwerling, Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., for defendant Wolfe.

Leonard J. Koenick, Washington, D. C., for defendant Thomas.

OPINION BY: RICHEY OPINION:

MEMORANDUM OPINION I. BACKGROUND On August 15, 1978, a United States Grand Jury empanelled by the United States District Court for the District of Columbia returned a twenty-eight count indictment against eleven individuals. Indicted are: Mary Sue Hubbard, Jane Kember, Morris Budlong, Henning Heldt, Duke Snider, Gregory Willardson, Richard Weigand, Mitchell Hermann, Cindy Raymond, Gerald Bennett Wolfe, and Sharon Thomas. Nine of the defendants are currently under the jurisdiction of the Court and two, Kember and Budlong, are in Great Britain, where extradition proceedings are pending. Of the nine individuals before the Court, the Grand Jury indicated its belief that seven of the defendants, Hubbard, Heldt, Snider, Weigand, Willardson, Raymond, and Hermann, held official positions within the United States Branch of the Guardian's Office of the Church of Scientology. The other two, Wolfe and Thomas, are charged with being agents of the Guardian's Office.

Counts One and Twenty-three charge the defendants with conspiracy. The Count One conspiracy charges each of the defendants except Wolfe n1 with conspiring to collect, by covert means, data relating to the Church of Scientology, its founder L. Ron Hubbard, and other Church members, which was in the possession of the United States Department of Justice, the Department of the Treasury's Internal Revenue Service, and the Office of the United States Attorney for the District of Columbia. Count Twenty-three alleges that the defendants, except for Thomas, conspired to cover up the scope of these activities after two agents of the Church, Michael J. Meisner and Wolfe, were caught inside the United States Courthouse with fake IRS credentials.

n1. Wolfe is named in Count One as an unindicted co- conspirator along with Michael J. Meisner. On May 13, 1977, Wolfe entered a guilty plea to a charge of fraudulent use of a government seal, a felony. In exchange for his plea, the government agreed not to charge him with any other possible violations arising out of three separate entries into the courthouse using a false IRS identification card. Michael J. Meisner is in the protective custody of the United States Marshal's Service and is expected to testify for the government at the trial of this case.

Counts Two through Twenty-two charge the defendants with various offenses in furtherance of the conspiracy in Count One. Count Two charges all of the defendants except Wolfe, Thomas, and Weigand with the interception or aiding and abetting the interception of wire or oral communications in violation of 18 U.S.C. § 2511(1)(a). Counts Three through Eight, Fourteen, Fifteen, Nineteen and Twenty charge the defendants with second degree burglary or aiding and abetting such a crime under 22 D.C.Code 1801(b). Counts Nine through Thirteen, Sixteen through Eighteen, Twenty-one and Twenty-two charge the defendants with the theft of government property or aiding or abetting such theft in violation of 18 U.S.C. § 641.

Counts Twenty-four through Twenty-eight charge the defendants with various offense in furtherance of the conspiracy charged in Count Twenty-three. Count Twenty- four charges each of the defendants except Thomas with obstruction of justice in violation of 18 U.S.C. § 1503. Count Twenty-five through Twenty-eight charge the defendant Wolfe with false declarations before a Grand Jury in violation of 18 U.S.C. § 1623.

The defendants' counsel have requested that oral argument on their pretrial motions be held in three phases. The Court has determined that oral argument will not be necessary. Under Rule 1-9(f) of the United States District Court for the District of Columbia Rules, this decision is "within the sole discretion of the court."

II. COUNT ONE OF THE INDICTMENT IS NOT DUPLICITOUS; IT PROPERLY ALLEGES A SINGLE CONSPIRACY.

The defendants move to dismiss Count One of the indictment on the ground that it improperly charges more than one conspiracy in a single count. Count One charges the defendants with agreeing to illegally locate and obtain information in the possession of the United States which relates to the Church of Scientology and to individuals, organizations, and agencies perceived to be enemies of the Church of Scientology. In support of the charge in Count One, the indictment alleges fifty-nine overt acts committed to effect the objects and means of this conspiracy.

The defendants contend that the allegations of this count actually encompass three distinct conspiracies: (1) the effort to obtain information from the Internal Revenue Service and the Tax Division of the Department of Justice concerning the government's effort to remove the tax exempt status of the Church of Scientology; (2) to protect the founder and leader of the Church of Scientology, L. Ron Hubbard, from harassment from governmental officials in general, and, particularly to keep him from being subjected to an abuse of the legal process through the subpoena power of the government; and (3) the scheme to obtain documents from all government agencies which had been withheld under the Freedom of Information Act, 5 U.S.C. § 552.

The defendants contend that this joinder of three conspiracies in one count of the indictment violates Kotteakos v. United States, 328 U.S. 750, 66 S. Ct.

1239, 90 L. Ed. 1557 (1946). In Kotteakos, the Supreme Court reversed the convictions of defendants who were charged in a one-count indictment with a conspiracy to obtain fraudulent loans through the National Housing Act. Id. at 752-53, 66 S. Ct. 1239. At the center of the conspiracy was one man who arranged the fraudulent loans for a number of people. Id. at 754-55, 66 S. Ct. 1239. On the appeal before the Supreme Court, the government conceded that the indictment actually alleged several conspiracies in one count, Id. at 752, 66 S. Ct. 1239, and the Court ruled that such a duplicitous indictment did not constitute harmless error. Id. at 767, 66 S. Ct. 1239. Thus, Kotteakos disallows the joinder of more than one conspiracy in a single count of an indictment.

This motion raises the question of what constitutes a single conspiracy. In ascertaining whether there is a single conspiracy or separate conspiracies, the crucial indicator is the nature of the conspiratorial agreement itself. United States v. Varelli, 407 F.2d 735, 742 (7th Cir. 1969), Cert. denied, 405 U.S.

1040, 92 S. Ct. 1311, 31 L. Ed. 2d 581 (1971). However, since the agreement is rarely explicit and in writing, its nature must be inferred from the conduct of the alleged conspirators. Simply because the overt acts which constitute the means and objectives of the conspiracy can logically be grouped into separate categories does not demonstrate that more than a single conspiracy is involved.

See Braverman v. United States, 317 U.S. 49, 53, 63 S. Ct. 99, 87 L. Ed. 23 (1942), United States v. Johnson, 337 F.2d 180, 185 (4th Cir. 1964), Aff'd, 383 U.S. 169, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966), Citing Frohwerk v. United States, 249 U.S. 204, 210, 39 S. Ct. 249, 63 L. Ed. 561 (1919). Even if the defendants are correct in pointing out that there must be some linkage between what can logically be treated as separate agreements, the defendants are not correct in asserting that the acts alleged in Count One of the indictment in this case lack such linkage.

Two key factors control the contours of a conspiratorial agreement: "the persons privy thereto, and the objectives encompassed therein." Note, Federal Treatment of Multiple Conspiracies, 57 Col.L.Rev. 387, 387 (1957) (citations omitted), Cited in United States v. Varelli, 407 F.2d at 743. In this case, there is a large overlap between the people involved in the "three conspiracies" as claimed by the defendants. Of the ten defendants named in Count One, only one has no involvement in the first conspiracy as defined by the defendants; only one has no involvement in the second conspiracy as defined by the defendants; and only three have no involvement in the third conspiracy as defined by the defendants.

Since so many of the same people are engaged in each of these three supposedly separate conspiracies, it is logical to conclude that distinct agreements were not made but, rather, a single agreement encompassing each of the distinct objectives was made by each conspirator.

The second factor, which as previously indicated, often demonstrates a linkage between individuals so that an agreement can be inferred is the objectives encompassed by the behavior of the conspirators. In Kotteakos, there was more than a single conspiracy because each person who attempted to get a loan through the central figure had no interest in whether the other people trying to get similar fraudulent loans succeeded or not. See Blumenthal v. United States, 332 U.S. 539, 558, 68 S. Ct. 248, 92 L. Ed. 154 (1947). The absence of any stake in the ventures of others made a single conspiracy unlikely. In this case, the government alleges a single objective: to illegally locate and obtain information in the possession of the United States which relates to the Church of Scientology and to individuals, organizations, and agencies perceived to be enemies of the Church of Scientology. The alleged conspirators are all allegedly members of the Church. Their interest in advancing the Church's interest would be assisted in each of the three conspiracies as described by the defendants.

Accordingly, there is a sufficient stake by each defendant in the entire venture or conspiracy.

Therefore, the Court finds that there is a linkage between the separate objectives of Count One, and it properly alleges a single conspiracy. Thus, the motion of the defendants to dismiss the first count of the indictment is denied.

III. THE FEDERAL STATUTE PROSCRIBING THE INTERCEPTION OF ORAL COMMUNICATIONS MUST BE READ TO REQUIRE A FEDERAL NEXUS IN ORDER TO PASS CONSTITUTIONAL MUSTER, AND SUCH A NEXUS IS PRESENTED IN THIS CASE.

The defendants have moved to dismiss Count Two of the indictment which charges a violation of section 2511(1)(a) of Title 18 U.S.C., the federal provision prohibiting eavesdropping. The defendants move to dismiss on the ground that the statute exceeds the bounds of Congressional authority to legislate.

Section 2511(1)(a) provides criminal penalties for anyone who "wilfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication." Section 2511(1)(a) is supplemented by section 2511(1)(b)(i-iv) which prohibits the interception of "oral communications through the use of equipment under circumstances which involve or affect interstate commerce." The defendants are not charged with violating the latter section.

The Constitution has explicit protections against excessive concentration of power in the federal government. Power is allocated among the federal government and the states by specifying those powers the Congress might exercise and by emphasizing in the tenth amendment that undelegated powers were reserved to the states or respectively to the people. Accordingly, Congress has authority to act only with respect to the powers specified in the Constitution. See G. Gunther, Constitutional Law 81 (1975).

Section 2511(1)(b)(i-iv) was enacted by the Congress in accordance with its power over interstate commerce. In enacting section 2511(1)(a) the Congress was not at all clear where they derived the power to prohibit "any person . . . to intercept . . . any . . . oral communication." In fact, Congress expressed doubt over its authority to legislate in such a broad fashion. The Senate Report accompanying Title III of the Omnibus Crime Control and Safe Street Act of 1968, in which this section was enacted, states:

The broad prohibition of subparagraph (2511(1)) (a) is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the case of interception of wire communications.

Sen.Rep.No.90-1097, 90th Cong., 2d Sess., Reprinted in 1968 U.S.Code Cong. & Admin.News at 2180-81.

The defendants contend that section 2511(1)(a) exceeds the authority of Congress to legislate, and that Congress has made no attempt to tie this section to an enumerated power of Congress. However, one court has given this section a judicial gloss in order to save its constitutionality. In United States v.

Burroughs, 564 F.2d 1111 (4th Cir. 1977), two management employees of J. P.

Stevens Company were indicted for intercepting oral communications of union organizers. Id. at 1113. The jury returned a verdict of guilty, but the court granted the defendants' motion for a judgment of acquittal because the government had failed to provide the necessary evidence of a federal nexus. Id.

The U.S. Court of Appeals for the Fourth Circuit upheld the district court's result, and held that "because subsection (1)(a) does not specify any particular basis for jurisdiction, we are of the opinion that proof of any rational basis would be adequate." Id. at 1115. Thus, the Burroughs decision, relied upon by the government in this case, merely requires that "Some basis for federal jurisdiction be established at trial." Id. (emphasis in original).

The defendants strongly urge this Court not to follow the Burroughs case.

According to the defendants, where statutory language and legislative intent is clear, courts will not construe a criminal statute so as to limit its natural scope only to those cases which would be within Congress' power. Citing Aptheker v. Secretary of State, 378 U.S. 500, 515-16, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964); Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S. Ct. 619, 70 L. Ed. 1059 (1925); James v. Bowman, 190 U.S. 127, 23 S. Ct. 678, 47 L. Ed. 979 (1902);

United States v. Steffens, 100 U.S. 82, 98-99, 25 L. Ed. 550 (1879); United States v. Reese, 92 U.S. 214, 23 L. Ed. 563 (1875).

The defendants and the government agree that a court can construe a statute to avoid a constitutional difficulty if such a construction is "fairly possible."

See Swain v. Pressley, 430 U.S. 372, 378 n. 11, 97 S. Ct. 1224, 51 L. Ed. 2d 411 (1977) Quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 76 L. Ed. 598 (1966). However, the parties disagree whether this statute is susceptible to a limiting construction.

The Court finds that it will accept the narrowing gloss on the statute in order to save its constitutionality. See Scales v. United States, 367 U.S. 203, 221-22, 81 S. Ct. [*74] 1469, 6 L. Ed. 2d 782 (1961). Accordingly, as did the court in Burroughs, the Court finds that the statute requires some federal nexus as an essential element thereof.

In making this determination, the Court is aware that the defendants have raised a very serious challenge to the facial validity of this statute. However, two other courts have upheld its validity, See United States v. Burroughs, 564 F.2d 1111 (4th Cir. 1977); United States v. Perkins, 383 F. Supp. 922 (N.D.Ohio 1974) (holding that there is a constitutional basis for the action of Congress in enacting section 2511(1)(a) to protect the right of privacy from incursions by private individuals). Moreover, the defendants concede that the actions alleged in the indictment constitute crimes at the common law; thus, a judicial modification of the statute will not create any notice problems to the defendants.

The Grand Jury has anticipated the Burroughs problem and has alleged a federal nexus in the indictment. The indictment charges that the defendants intercepted oral communications made during a meeting of agents and employees of the Internal Revenue Service of the United States Department of the Treasury, held at the IRS headquarters in the District of Columbia. Accordingly, the Motion of the defendants to dismiss Count Two is denied.

IV. COUNT TWENTY-THREE OF THE INDICTMENT PROPERLY INCLUDES THE OBSTRUCTION OF A CRIMINAL INVESTIGATION AS AN OBJECTIVE OF THE CONSPIRACY.

The defendants move to dismiss a portion of Count Twenty-three of the indictment, which charges a conspiracy in violation of 18 U.S.C. § 371. The indictment specifies four objects of the Count 23 conspiracy: (1) to obstruct justice in violation of 18 U.S.C. § 1503; (2) to obstruct a criminal investigation in violation of 18 U.S.C. § 1510; (3) to harbor and conceal a fugitive from arrest in violation of 18 U.S.C. § 1071; and (4) to make false declarations in violation of 18 U.S.C. § 1623. The defendants wish to have stricken the portion of Count Twenty-three which alleges as an objective of the conspiracy violations of section 1510 to obstruct a criminal investigation.

Section 1510 was enacted to deter coercion of potential witnesses and has been interpreted to exclude coercion of accomplices from its coverage. See United States v. Cameron, 460 F.2d 1394, 1401-1402 (5th Cir. 1972). The rationale is that this section was enacted to protect a witness against intimidation or coercion by a third party who is attempting to prevent the witness from supplying or communicating information to a federal investigator. House Report No. 90-658, 1967 U.S.Code Cong. & Admin.News at 1762. According to the defendants, an accomplice or co-conspirator, may be punished under other sections such as obstruction of justice, but not under section 1510, if he has merely imposed silence on an accomplice.

The government contends that the allegations of Count Twenty-three plainly make out a violation of section 1510 as an object of the conspiracy. According to the government, the "accomplice" rule is not applicable to this case because the unindicted co-conspirator, Michael Meisner, at one point withdrew from the conspiracy, and it was not until his withdrawal that the conspirators agreed to obstruct a criminal investigation in violation of section 1510. Thus, the unindicted co-conspirator became a victim of the section 1510 objective when he was no longer an accomplice.

The defendants reject the plausibility of this analysis in their reply to the government's opposition, and further contend that the indictment fails to allege that the unindicted co-conspirator ever withdrew from the conspiracy. Thus, according to the defendants, the government is improperly attempting to amend the indictment, or has improperly joined more than a single conspiracy in one count.

The Court finds that the indictment makes out, as an objective of the conspiracy in Count Twenty-three, a violation of section 1510. Many of the overt acts alleged in the indictment under Count Twenty-three support the government's claim that an objective of the conspiracy was to engage in conduct in violation of section 1510. See Indictment Count Twenty-three, P 35-41, 44-45.

In addition, in the context of a co-conspirator who has resigned from the conspiracy, there can be no such "accomplice" rule. The rationale behind section 1510 completely supports its use in such a situation. When an organized group attempts to prevent one of its members from withdrawing from a conspiracy, surrendering to federal investigators, and detailing the criminal offenses committed by the other members of the group, plainly a violation of section 1510 is made out. See H.Rep.No.98-658, 1967 U.S.Code Cong. & Admin.News at 1762;

United States v. Cameron, 460 F.2d at 1402 ("There is no hint in the proof of force, threats, intimidation and perhaps none of misrepresentation.").

Furthermore, the indictment clearly is precise enough to allege violations of section 1510 as an objective of the Count Twenty-three conspiracy. See United States v. Lippman, 492 F.2d 314, 317 (6th Cir. 1974), Cert. denied, 419 U.S.

1107, 95 S. Ct. 779, 42 L. Ed. 2d 803 (1975). The Court rejects the defendants' contention that the indictment must specifically allege that the unindicted co-conspirator withdrew from the conspiracy prior to the section 1510 objectives. If the indictment makes out a claim that violations of section 1510 were an objective of the conspiracy, the Court is unable to fathom any reason why the indictment must specifically allege facts which remove the possibility that the so-called "accomplice" rule can be invoked by the defendants. The indictment need not anticipate every possible defense the defendants might raise in order to survive a motion to [**19] dismiss. Moreover, a reading of the indictment in this case makes clear that the unindicted co-conspirator did at one point attempt to withdraw from the conspiracy. The fact that this information is alleged in the overt acts rather than the charging paragraph is not significant because the absence of the "accomplice" defense is not an essential element of the crime charged conspiracy under section 371.

Finally, the defendants contend that the agreement to victimize the unindicted co-conspirator in violation of section 1510 is only alleged against certain defendants, thus it is wholly separate and cannot be prosecuted along with the other agreement under Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). The Court finds no merit in this contention. The scope of the conspiracy is determined by the scope of the agreement between the conspirators. Since the agreement is seldom visible, inferences must be made according to the stake of the conspirators in the venture and the relations of the parties to the separate activities. In this count, there is a substantial overlap between the parties involved in each separate action, and the separate objectives each are consistent with and support the overall objective; thus, the conspirators each had a similar stake in the success of the several objectives.

Therefore, the appropriate inference is that one agreement was made, and each objective was merely a means to achieve the purposes of the overall agreement.

See pages 71 and 72 Supra.

Accordingly, the motion of the defendants to dismiss portions of Count Twenty-three relating to offenses under 18 U.S.C. § 1510 is denied.

V. COUNT TWENTY-FOUR OF THE INDICTMENT PROPERLY CHARGES OBSTRUCTION OF JUSTICE BY CONCOCTING FALSE TESTIMONY FOR AN INVESTIGATION CARRIED OUT IN CONJUNCTION WITH A GRAND JURY PROCEEDING.

Count Twenty-four of the indictment charges eight of the defendants with obstructing justice in violation of 18 U.S.C. § 1503. In pertinent part, section 1503 provides criminal penalties for:

Who(m)ever corruptly, or by threat or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States . . . or any grand jury . . . or officer in or of any court of the United States . . . or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice .

. . .

The defendants contend that there are two defects in Count Twenty-four: (1) Count Twenty-four charges no more than the preparation of false testimony, and this alone is insufficient to constitute a violation of section 1503; and (2) there is no charge of interfering with a judicial proceeding as required by section 1503.

According to the defendants, the preparation of false testimony cannot in isolation be construed to be an obstruction of justice. The defendants candidly point out that some courts have held that false statements alone can support a conviction under section 1503. See United States v. Partin, 552 F.2d 621, 630-31 (5th Cir.) Cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977);

United States v. Cohn, 452 F.2d 881, 883-84 (2d Cir. 1971), Cert. denied, 405 U.S. 975, 92 S. Ct. 1196, 31 L. Ed. 2d 249 (1972). However, the defendants contend that the better-reasoned opinions and those approved by the United States Court of Appeals for the District of Columbia hold that prosecutions for the Giving of misleading testimony is not permissible under 18 U.S.C. § 1503.

Citing United States v. Jackson, 168 U.S.App.D.C. 198, 201 n. 11, 513 F.2d 456, 459 n. 11 (1975); United States v. Essex, 407 F.2d 214 (6th Cir. 1969).

According to the Court in Essex, section 1503 was enacted to reach contemptuous conduct occurring away from the court. Id. at 216. Furthermore, the court in Essex found that perjury alone lacks the essential element of obstruction. Id.

at 218. And, in the facts presented in Essex, the court found that the defendant may have perjured herself but she did not endeavor to influence or interfere with officers, jurors, or witnesses within the meaning of 18 U.S.C. § 1503. Id.

The defendants contend that as in Essex, Count Twenty-four must be dismissed because it alleges no more than the preparation of false testimony.

The Court finds that Count Twenty-four in the indictment in this case is distinguishable from the charge in Essex. In Essex, the defendant was charged with no more than submitting a false affidavit in support of Jimmy Hoffa's motion for a new trial. The court stressed that the defendant was not charged with endeavoring to influence or interfere with officers, jurors, or witnesses.

Id. at 218. In this case, the defendants are not charged in Count Twenty-four with merely giving false testimony before the Grand Jury. Count Twenty-four charges that the defendants:

willfully and knowingly, would and did corruptly influence, obstruct and impede and would and did corruptly endeavor to influence, obstruct and impede the due administration of justice in connection with the investigation referred to in paragraph three (3) of this Count, by preparing and assisting in the giving of false and misleading statements and information, 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 said investigation and judicial proceedings, and (b) other illegal and improper activities.

By charging the defendants with preparing and assisting in the giving of false and misleading testimony in order to impede the investigatory function of the Grand Jury, the indictment in Count Twenty-four steps beyond mere perjury and properly alleges an obstruction of justice under section 1503. The Court is not prepared to hold that nothing short of bribery, intimidation or threats suffices to state an offense under section 1503. Section 1503 does include the word "impede." Moreover, in the present posture of this case, the Court cannot say that the government's evidence will not show intimidation. The indictment need not specify the specific means but must only notify the defendants of the nature of the charge so that they may adequately prepare their defense. United States v. Haldeman, 181 U.S.App.D.C. 254, 346, 559 F.2d 31, 123 (1976) (per curiam) (en banc), Cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977).

The defendants' second point is that Count Twenty-four fails to allege that the defendants obstructed a judicial proceeding as required by section 1503. The Court rejects this contention. The third paragraph alleges that:

The FBI and the Office of the United States Attorney for the District of Columbia were conducting an investigation which was continued in conjunction with a Grand Jury of the United States District Court for the District of Columbia, which was duly empaneled and sworn on or about October 13, 1976, to determine whether violations of the statutes of United States and of the District of Columbia had been committed in the District of Columbia and elsewhere, and to identify the individuals who had committed such violations.

The Court finds that this allegation provides the necessary nexus to satisfy section 1503's requirement that there be an obstruction of a judicial proceeding such as a Grand Jury investigation. See United States v. Haldeman, 181 U.S.App.D.C. at 338 n. 229, 559 F.2d at 115 n. 229.

Accordingly, the defendants' motion to dismiss Count Twenty-four of the indictment is denied.

VI. THE DEFENDANTS HAVE FAILED TO SHOW THAT THE INDICTMENT IS THE RESULT OF A BAD FAITH PROSECUTION.

The defendants contend that the indictment must be dismissed as the instrument of a selective, discriminatory and bad faith prosecution and by reason of the government's gross misconduct. To support this contention, the defendants rely on Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886) and Fowler v. Rhode Island, 345 U.S. 67, 73 S. Ct. 526, 97 L. Ed. 828 (1953). In Yick Wo, the board of supervisors allowed all who were not Chinese but one, to operate laundries in wooden buildings, but withheld consent from All Chinese.

118 U.S. at 359, 6 S. Ct. 1064. In Fowler, a Jehovah's Witness minister was convicted of violating an ordinance for preaching in a public park. 345 U.S. at 67-68, 73 S. Ct. 526, 97 L. Ed. 828 . In this case, the defendants are charged with being burglars, thieves, perjurers, and conspirators. There is no allegation that others committing similar acts have not been prosecuted, or that the alleged behavior came within first amendment protections. The Court finds that the defendants have failed to meet the burden of establishing a Prima facie case of selective or discriminatory prosecution. See United States v. Berrios, 501 F.2d 1207, 1212 (2d Cir. 1974). There has been absolutely no showing that any official involved in this prosecution has administered the law in any way but with an equal hand.

Included with the defendants' motion to dismiss the indictment as an instrument of bad faith prosecution is the request to suppress evidence obtained by illegal surveillance. The Court finds that there is no merit to this request. The government has filed seven affidavits from Assistant United States Attorneys and FBI agents who have been involved in this case since its inception, stating that none of the evidence to be used at trial or presented to the Grand Jury was derived in any way from electronic surveillance. Therefore, such surveillance has no bearing on this case. Accordingly, the defendants' motion is denied.

VII. THE INDICTMENT WILL NOT BE DISMISSED ON THE GROUND OF PREJUDICIAL PRE- INDICTMENT PUBLICITY AND ALLEGED PROSECUTORIAL MISCONDUCT.

The defendants move to dismiss the indictment because: (1) prejudicial pre-indictment and pre-trial publicity was generated by the government calculated to create a climate of public opinion hostile to the defendants [*78] and to influence and prejudice the grand jury; (2) government misconduct before the grand jury which was calculated to prejudice the grand jury against the defendants; (3) government misconduct in presenting evidence to the grand jury in such a way as to deprive it of its capacity to arrive at an informed independent judgment with regard to each defendant; (4) for actual bias and prejudice of the grand jury; (5) for violation of grand jury secrecy contrary to Rule 6(e) of the Federal Rules of Criminal Procedure; (6) the indictment was not founded on an informed, independent judgment of the grand jury with regard to each defendant; and (7) the prosecution violated the Justice Department and court rules with respect to pre- indictment publicity. In the alternative, the defendants request a hearing on the government's responsibility for the press leaks which they claim have marked this case, the prosecution's conduct before the grand jury tending to prejudice that body, the manner in which the prosecution presented evidence to the grand jury, and the actual bias and prejudice of the grand jury.

The first step in the defendants' argument is that there was an intolerable degree of prejudicial pre-indictment publicity. However, the Court is aware of no case in which an indictment was dismissed for prejudicial pretrial publicity.

The standard remedies for prejudicial publicity are the granting of a continuance or a change of venue. United States v. Haldeman, 181 U.S.App.D.C.

254, 282- 287, 559 F.2d 31, 59-64 (1976) (per curiam) (en banc), Cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977). The defendants have sought neither remedy. Moreover, Voir dire is the appropriate means for determining whether a fair and impartial jury can be selected. Jones v. Gasch, 131 U.S.App.D.C. 254, 262, 404 F.2d 1231, 1239 (1967), Cert. denied, 390 U.S.

1029, 88 S. Ct. 1414, 20 L. Ed. 2d 286 (1968). Thus, there is no basis for the defendants' contention that the indictment must be dismissed on account of prejudicial pretrial publicity.

The next step in examining defendants' numerous claims with regard to pre-indictment publicity is adding into the picture defendants' allegations of prosecutorial violations of rules and regulations which prohibit feeding information to the press. First, the defendants have offered absolutely no evidence linking the government to any press leaks. Second, even if government employees violated such regulations, the defendants have failed to support their claim that this would give them a right to have the indictment dismissed.

Certainly the government employees could be punished, but the Court is not convinced that the identity of the people who create the publicity should somehow change its significance when determining whether the trial can proceed.

The Court is unable to find any basis for what would amount to an exclusionary rule. Applying the rule of Stone v. Powell, 428 U.S. 465, 489, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), on balance, the social costs in dismissing an indictment because of a leak by the government greatly outweigh the benefits in deterrence, since there are remedies already available for such government misconduct.

The defendants' allegations of prosecutorial misconduct are also unpersuasive.

The government has pointed out that the defendants did not at any time during the pendency of the grand jury's investigation petition the Court for relief from what it now perceives to be improper prosecutorial behavior. The defendants have been given ample time to reply and have offered no explanation for their delay in bringing these serious allegations to the Court's attention.

Nevertheless, in the interest of justice, and in view of the number of affidavits filed by the defendants to support their claim, the Court will order the government to produce the transcripts of the Grand Jury's proceedings for an In camera inspection by the Court. See People v. Sears, 49 Ill.2d 14, 273 N.E.2d 380 (1971). If any improprieties are discovered, they will be brought to the attention of all counsel, and in that event the Court will consult with counsel to determine the appropriate action to take under the circumstances.

VIII. PHOTOCOPYING GOVERNMENT DOCUMENTS THROUGH THE USE OF GOVERNMENT EQUIPMENT AND SUPPLIES IS PROHIBITED BY THE FEDERAL LARCENY STATUTE.

Ten of the substantive counts of the indictment in this case charge violations of 18 U.S.C. § 641. Each count alleging violations of section 641 track the language of the statute alleging that the defendants "did wilfully and knowingly steal, purloin and convert to their own use records and things of value of the United States and of a department and agency thereof . . .," and give the date and time of the alleged theft as well as the property involved "documents and photocopies thereof." Although the indictment alleges theft of documents as well as photocopies, the government has indicated that no originals were stolen.

Instead, the government contends that the defendants removed originals of government documents and made photocopies of them through the use of government equipment and government supplies, and then returned the original to the agency.

United States' Opposition to Defendants' Motion to Dismiss Counts Nine Through Thirteen, Sixteen Through Eighteen, Twenty-one Through Twenty-two, or in the Alternative, to Strike Surplusage From Said Counts at 1 (February 23, 1979).

The defendants contend that the charges under section 641 must be dismissed because theft requires an intent to permanently deprive the owner of his right to possession, and the indictment fails to allege that something was permanently taken. The government in response has attempted to predicate a violation of section 641 on two theories. The first is that the defendants stole the information in the documents, and the second is that the copies, allegedly made from government documents, by means of government resources, are records of the government, and thus the copies were stolen. The Court finds that the latter rationale will support a violation of section 641, and will not reach the issue raised by the former rationale. Therefore, it is unnecessary to reach the claims of the defendants in this regard.

In United States v. DiGilio, 538 F.2d 972 (3d Cir.) Cert. denied, 429 U.S. 1038, 97 S. Ct. 733, 50 L. Ed. 2d 749 (1976), the court ruled that availing oneself of government resources in copying government documents makes the duplicate copies government property and "things of value" within the requirements of section 641. Id. at 977-78. Therefore, the indictment's claim that the defendants violated section 641 by copying government documents through the use of government equipment withstands the defendants' motion to dismiss because government-owned copies were taken with the intent to permanently deprive the owner of possession.

The Court will not reach the question of the validity of the government's alternative rationale. If section 641 reaches the theft of government information, as the government contends, serious first amendment questions would be raised, and there is ample legal authority to avoid those constitutional questions by interpreting the statute to not include information as a thing of value.

In Pearson v. Dodd, 133 U.S.App.D.C. 279, 410 F.2d 701, Cert. denied, 395 U.S.

947, 89 S. Ct. 2021, 23 L. Ed. 2d 465 (1969), the court of appeals for this circuit ruled that the temporary removal of documents for copying purposes does not result in a tortious conversion. Id. at 708. If the actions do not constitute the tort of conversion, the same actions should not constitute the federal crime of conversion in the absence of some clearer indication of Congressional intent to change the law. See Morissette [**34] v. United States, 342 U.S. 246, 262, 72 S. Ct. 240, 96 L. Ed. 288 (1952). In addition, in a case completely devoid of first amendment implications, the U.S. Court of Appeals for the Ninth Circuit ruled that section 641 must be construed to include only tangible property. Chappell v. United States, 270 F.2d 274, 277-78 (9th Cir. 1959). In Chappell, the court set aside the conviction under section 641 of an officer in the military who had ordered a subordinate to paint three dwellings owned by the defendant. The court found that the conversion of a government employee's labor was not prohibited by section 641, because the statute incorporated common law definitions of offenses, and conversion requires the theft of tangible property. Id. at 277-78.

Moreover, treating information as a thing of value under section 641 would raise the strong possibility of harm to important first amendment values. See Nimmer, National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case, 26 Stan.L.Rev. 311, 322- 24 (1973). First, there is clear precedent that the copying of any document does not constitute conversion. See Local Trademarks, Inc. v. Price, 170 F.2d 715, 718-19 (5th Cir. 1948);

Pickford Corp. v. DeLuxe Laboratories, Inc., 169 F. Supp. 118, 120 (S.D.Cal.1958). Second, whereas there are penalties for copyright violations, the Congress has explicitly provided that there is no copyright on government documents. 17 U.S.C. § 105. Moreover, if there were a crime for converting unspecified government information, it would not be limited to photocopying. If a person came across certain completely unclassified information during his employment within the federal government, and discussed it outside the scope of his employment, an argument could be made that he had converted government information in violation of section 641. Of course, such an interpretation would be impermissible. See New York Times v. Sullivan, 376 U.S. 254, 269, 84 S. Ct.

710, 11 L. Ed. 2d 686 (1964). The free exchange of ideas, especially ideas in possession of the government, is at the very heart of our first amendment guarantees. See Whitney v. California, 274 U.S. 357, 377, 47 S. Ct. 641, 71 L.

Ed. 1095 (1927) (Brandeis, J., concurring). Accordingly, the government will not be permitted to rely on any alleged conversion of government information for a violation of section 641 in this case. However, the government may proceed on the theory that copies made from government resources are owned by the government. Accordingly, the defendants' motion to dismiss all charges of section 641 violations is denied.

IX. THE GOVERNMENT MUST PARTICULARIZE SOME OF THE CHARGES IN THE INDICTMENT.

The defendants have made thirty-three specific requests, with numerous subparts, for particularization of the indictment. Three purposes are usually ascribed to a bill of particulars: (1) to enable a defendant to prepare his defense; (2) to avoid prejudicial surprise at trial; and (3) to protect a defendant against double jeopardy. 1 C. Wright, Federal Practice & Procedure sec. 125 & 129. The issue of particularization is addressed to the sound discretion of the district court. Wong Tai v. United States, 273 U.S. 77, 82, 47 S. Ct. 300, 71 L. Ed. 545 (1927).

The defendants have broken down the government's objections to their thirty-three requests into thirteen categories.

In response to the defendants' requests numbers 1, 3, 4d, and 30b, the government objects on the ground that the defendants seek definitions, citing United States v. Smallwood, 443 F.2d 535, 540-41 (8th Cir.), Cert. denied, 404 U.S. 853, 92 S. Ct. 95, 30 L. Ed. 2d 93 (1971). However, simply because the defendants seek definitions is not a ground for objection unless the defendants seek a definition of a term that is sufficiently clear to enable the defendants to prepare their defense. Id. at 540. In this case the defendants seek explication of the terms "covertly," "agent of Scientology," "various illegal and unlawful means," "in conjunction with." The Court finds that each of these terms or phrases is unnecessarily vague and could benefit from some elaboration on the government's part.

The government has opposed the defendants' requests numbers 4a, 4f, 4g, 10a, 19d, and 19e, on the ground that the proof of a conspiracy does not require specification of the places where the alleged conspiracy was entered into. The Court finds that this information is not necessary for the defendants to adequately prepare their defense. Moreover, it is evidence which is not available in a bill of particulars. United States v. Smallwood, 443 F.2d at 540-41.

The government opposes the defendants' requests numbered 4e, 4h, 19c, 19f, and 19h, on the ground that any acts in furtherance of the conspiracy but not enumerated in the indictment or allegedly committed by unindicted co-conspirators need not be particularized. With regard to the acts of unindicted co-conspirators, the Court finds that the government should provide "the overt acts by . . . any alleged conspirator not named as a defendant, which the government will prove at trial by which it is alleged defendants sought (to commit the crimes charged)." United States v. Corrado, 307 F. Supp. 513, 517 (S.D.N.Y.1969). The defendants also request any overt acts not specified in the indictment. The Court grants this request to the extent of approximate specifications. See United States v. Fine, 413 F. Supp. 740, 746 (W.D.Wis.1976).

The government objects to the defendants' requests numbered 6, 7f, 10b, 15g, 15h, 16b(i), 16b(iv), 24, 31j, and 33b, on the ground that it need not disclose its theory of the case in a bill of particulars. Due to the complexity of the present indictment, the Court finds that such information should be made available to the defense. See United States v. Baker, 262 F. Supp. 657, 674 (D.D.C.1966).

The government opposes the defendants' requests numbers 11a, 15c, 16a, and 18, on the ground that the government need not provide the exact time or date of meetings. The Court finds that such information is purely evidentiary material unavailable in a bill of particulars. United States v. Smallwood, 443 F.2d at 540.

The government objects to the defendants' requests numbered 7f, 15b, 15d, and 16d, on the ground that the manner or means with which the acts alleged in the indictment were carried out are unavailable in a bill of particulars. The Court finds that the government should make such information available. See United States v. Baker, 262 F. Supp. 657, 673 (D.D.C.1966).

The government resists the defendants' requests numbered 7a-d, 11d, 11e, 12b, 13, 19f, 19h, 21e, and 30a, on the ground that the defendants seek discovery which is unavailable in a bill of particulars. These requests seek information such as the minute details of the occurrence of the overt acts. The Court finds this to be purely evidentiary material not subject to particularization. United States v. Smallwood, 443 F.2d at 540.

The government opposes the defendants' requests numbered 5, 9a, 9b, 25, 26, and 27, on the ground that the government has already provided the information to the defendants. The defendants still seek answers to their request for particularization because they do not wish "to ferret out" the particulars they seek from the information already provided. If the government has disclosed this information, the Court does not see why the government rather than the defendants should ferret it out.

The government has opposed defendants' requests numbered 15e, 15f, and 31k, on the ground that they are beyond the scope of a bill of particulars. The Court finds that requests 15e and 15f seek the minute details of meetings and times, and therefore are denied. However, request number 31k asks for the identities of unindicted co- conspirators alleged to have participated in the crime charged in Count Twenty-four. To the extent that the government is able, the Court finds that it should respond to this request. See United States v. Orsini, 406 F.

Supp. 1264 (S.D.N.Y.1976).

The government objects to the defendants' requests numbered 19g, 31c, 31d, 31f, 31h, 33c, and 33d on the ground that the indictment is clear on these points.

The Court agrees with the government with respect to requests numbered 19g, and 33d(iii). The Court finds that the government should provide approximate specifications to requests numbered 31c, 31d, 31f, 33c, 33d(i), and 33d(iv), and should answer request number 31h.

The government has answered the defendants' requests numbers 11a, 15a, 21a, 21b, 21c, 21d, 22c and 31i in ways which the defendants contend is so vague to be essentially meaningless. For example, the defendants request that the government specify which criminal statute the indictment charges the defendants conspired to obstruct. The governments' response is that it ought not be required to do legal research for the defendants. The Court finds that the government's answers to requests numbered 21b and 22c should be further explicated; however, the other responses are sufficiently complete to permit the defendants to prepare their defense.

The government has failed to object to the defendants' requests numbered 15i and 33e. The Court finds that the government should make this information concerning the identity of unindicted co-conspirators available.

In ordering the government to particularize, it should be noted that it is not the Court's intention to strictly limit the government's proof at trial, and if the government is unable to respond in precise terms [**42] at this time because it is uncertain as to the facts, the government should respond as precisely as it is able. See United States v. Fine, 413 F. Supp. 740, 746 (W.D.Wis.1976); United States v. Ahmad, 53 F.R.D. 194, 200 (M.D.Pa.1971).

X. INSINUATIONS OF UNALLEGED FACTS, IRRELEVANT DESCRIPTIVE RECITALS, INFLAMMATORY LANGUAGE, AND NARRATIVE DECLARATIONS OF PAST FACT ARE STRICKEN FROM THE INDICTMENT AS SURPLUSAGE.

The defendants have moved the Court to strike from the indictment sixty-nine (69) items of prejudicial surplusage, in four categories: (1) insinuations of unalleged facts; (2) irrelevant descriptive recitals; (3) inflammatory language;

and (4) narrative declarations of past facts not evidentially admissible. This motion is made pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure which empowers the Court to "strike surplusage from the indictment."

Under the defendants' category of insinuations of unalleged facts are phrases which occur throughout the indictment such as "among other things," "including but not limited to," and "at least." The defendants object to their inclusion in the indictment because they insinuate unalleged facts unnecessary to the elements of the crimes charged, and they may open the door to attempts by the prosecution to enlarge the charges, and they may lead the jury to infer accusations of crimes beyond those actually charged. The defendants rely on the cases of United States v. Brighton Building & Maintenance Co., 435 F. Supp. 222, 230-31 (N.D.Ill.1977), and United States v. Pope, 189 F. Supp. 12, 25-26 (S.D.N.Y.1960). The court in Pope struck the words "among other things" from an indictment, while the court in Brighton Building struck the words "at least."

The government contends that in Pope and Brighton Building, the offending words appeared in the charging paragraphs of individual counts of the indictment. The government's contention is incorrect. The court in Brighton Building struck such words throughout the indictment, and neither court drew any distinction based on the location of the offending words. Moreover, the Court is not convinced that such words are not prejudicial outside of the charging paragraphs. Regardless of their location in the indictment, they may encourage the jury to draw inferences that the defendants are believed to be involved in activities not charged in the indictment. Furthermore, they serve no useful purpose. Accordingly, the words "various," "including but not limited to the following," "among other things,"

"and related matters," "on a number of occasions," "at least," "other illegal and improper activities," "and elsewhere," and "besides the defendants" shall be stricken from the indictment as irrelevant and prejudicial.

The defendants also move the Court to strike descriptive language that is irrelevant and prejudicial from the indictment. Within this category, the defendants include: (1) the inclusion of legal means in a list described as "illegal means;" (2) references to a confrontation between the Federal Bureau of Investigation and alleged members of the Church of Scientology in the United States Courthouse in Washington, D.C.; (3) the guilty plea and sentencing of the defendant Wolfe for his wrongful use of a governmental seal; and (4) the cataloging of the offenses the grand jury was investigating.

First, the Court finds that the inclusion of legal means in a list entitled "illegal means" is prejudicial and irrelevant and should be stricken. The government is correct in asserting that an overt act need not be illegal;

however, the Court finds that inclusion of legal acts under a heading of "illegal means" would be prejudicial and misleading. The defendants request that the legal means be struck. However, the Court finds that the problem can be remedied by striking the words "illegal" and "unlawful" from the introduction to the list; thus, the prejudice will be removed.

Second, the defendants move to strike references to a confrontation between Federal Bureau of Investigation agents and alleged members of the Church of Scientology in the United States Courthouse. Since this occurrence is not charged in the indictment as a substantive offense, the Court finds that it may be prejudicial to the defendants. Accordingly, it shall be stricken from the indictment.

Third, the defendants move to strike references to the guilty plea and sentencing of Gerald Wolfe for wrongful use of a government seal. The Court finds that such references are prejudicial and irrelevant, and orders them stricken from the indictment. See United States v. Verra, 203 F. Supp. 87, 89 (S.D.N.Y.1962). As in Verra, the defendants are charged with conspiracy to obstruct justice and one defendant's prior conviction of the substantive offense is not an essential element of the charge in this indictment.

Fourth, the defendants move to strike the litany of offenses the grand jury was investigating. The Court finds these references to be prejudicial and irrelevant. See United States v. Bonanno, 177 F. Supp. 106, 116 (S.D.N.Y.1959), Rev'd on other grounds sub nom. United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960). These are as the above irrelevant descriptive recitals.

Under the defendants' category of inflammatory language are such words as "infiltrate," "burglary," "cover up," "covertly," "bogus," "illegally," and "operatives." The Court finds that the use of such colorful words to describe the allegations in the indictment is improper where less colorful and more accurate words would suffice. The government contends that this is mere semantic quibbling; however, the Court finds such words to be prejudicial and unnecessarily loaded.

Finally, the defendants move the Court to strike narrative declarations of past facts which are lawful acts of communicating written and oral reports among the defendants concerning past events. The defendants rely on United States v.

Birnbaum, 337 F.2d 490, 495 (2d Cir. 1964), in which the court held such narrative declarations to be inadmissible into evidence. The government has tried to distinguish Birnbaum by arguing that these narratives would be admissible because they were made in furtherance of the conspiracy to obstruct justice. Without resolving the evidentiary question at this time, the Court will order these references struck in order to assure that the jury will not be prejudiced should this evidence later be held to be inadmissible.

Nothing in this Memorandum Opinion should be interpreted as a ruling on the admissibility of evidence at trial.

XI. ALLEGED THEFTS OF DOCUMENTS FROM INTERPOL WERE IN FURTHERANCE OF THE CONSPIRACY.

The defendants have moved to strike four overt acts from the first count of the indictment. The four overt acts the defendants seek to have stricken allege thefts of documents from the United States National Central Bureau to Interpol.

The defendants contend that these alleged thefts could not be in furtherance of the conspiracy to illegally obtain information and documents in the possession of the United States because Interpol is not an agency or department of the United States.

Defendants point out that Title 5 of the U.S.C. section 101 lists all the departments in the executive branch and Interpol does not appear on the list.

However, control of the United States National Central Bureau of Interpol is vested in the Deputy Attorney General of the United States. 28 C.F.R. 0.15(b) (3). Furthermore, it is undisputed that the office is staffed by United States law enforcement personnel. Its policies are enunciated by the Department of Justice, and its offices are located in the United States Department of Justice main building and previously were in the United States Department of the Treasury headquarters. Accordingly, the Court finds that the indictment's description of the Interpol documents as "in the possession of the United States" is not without foundation.

Alternatively, the defendants contend that the indictment alleges that the documents were in the possession of the Department of Justice and the Department of the Treasury, and that Interpol documents would not be included in such a description. However, the indictment alleges that the Interpol documents stolen were in the custody, control or possession of the United States National Central Bureau to Interpol offices located at, or from actual employees of, the United States Department of Justice and the United States Department of the Treasury.

The Court finds that the allegations of thefts from Interpol are not surplusage, but are properly alleged as overt acts in furtherance of the conspiracy alleged in Count One. Accordingly, the motion is denied.

XII. THE DEFENDANTS HAVE NO RIGHT TO PERSONALLY CONFRONT WITNESSES IN PROTECTIVE CUSTODY TO DETERMINE THEIR WILLINGNESS TO BE INTERVIEWED BY DEFENSE COUNSEL.

The defendants have moved the Court to order the government to produce Michael Meisner at a hearing before this Court to determine his willingness to be interviewed before trial by defense counsel. Mr. Meisner was allegedly involved in the conspiracy as a member of the Church of Scientology. According to the government, Meisner requested that he be placed in protective custody because he feared that the defendants and other members of the Church would cause him grievous bodily harm. It is the defendants' understanding that Meisner will testify for the government in the trial of this case.

The government has indicated its willingness to forward a letter from the defendants' counsel to the United States Marshal's Service, who would in turn forward it to Meisner. The defendants contend that they have a right to personally confront Meisner to determine if he is willing to be interviewed by defense counsel, and that it is "not proper for the prosecution to serve as conduit for defense counsel's request." Defendants' Reply to Government's Response to Defendants' Motion to Interview Witnesses Held in Protective Custody, at 6 (March 27, 1979).

The law is clear that the government may not interfere with defense counsel's attempts to interview a potential witness. Gregory v. United States, 125 U.S.App.D.C. 140, 143-44, 369 F.2d 185, 188-89 (1966) Cert. denied 396 U.S. 865, 90 S. Ct. 143, 24 L. Ed. 2d 119 (1969); Coppolino v. Helpern, 266 F. Supp. 930, 935 (S.D.N.Y.1967). However, the law is just as clear that the witness cannot be compelled to be interviewed. See United States v. Matlock, 491 F.2d 504, 506 (6th Cir.) (per curiam), Cert. denied, 419 U.S. 864, 95 S. Ct. 119, 42 L. Ed. 2d 100 (1974).

The defendants contend that they have a right to personally interview the witness to determine his willingness to be interviewed. In support of their position, they rely on People v. Paskowitz, 151 Misc. 171, [**51] 270 N.Y.S.

799 (1934) which held that a witness' willingness to be interviewed is a matter upon which the witness should be permitted to speak for himself. However, neither Paskowitz nor any case cited to this Court requires that the witness must indicate his willingness at a hearing at which he is confronted by defense counsel. The Court sees no reason why a written indication would be inadequate.

The defendants also contend that it is improper for the prosecution to act as conduit for defense counsel's request. The Court is persuaded by defense counsel on this point. Accordingly, the Court will act as conduit for the defendants' request.

Therefore, defense counsel may file with the Court any request they would like to be forwarded to witnesses in the protective custody of the United States Marshal's Service with regard to their willingness to be interviewed prior to trial by defense counsel. The Court will then direct the Marshal's Service to forward these requests to the potential witnesses. Thus, the motion of the defendants to produce witnesses at a hearing to determine their willingness to be interviewed is denied.

XIII. THE DEFENDANTS MAY HAVE LIMITED ACCESS TO THE GRAND [**52] JURY QUALIFICATION QUESTIONNAIRES.

The defendants seek access to the following information:

1. the names and addresses and occupations of the members of the October 13, 1974, and April 3, 1978 grand juries;

2. juror qualification questionnaires filled out by members of those juries;

3. the opening remarks of the United States Attorney or his assistants, or of a judge before those grand juries;

4. the closing remarks of the United States Attorney or of a judge before those grand juries;

5. documentation of the dates the grand juries heard testimony; and 6. documentation of the dates the grand juries were discharged.

Although the October 13, 1974 grand jury heard testimony with regard to this case, it did not indict the defendants. Therefore, the Court finds that the information the defendants seek with regard to that grand jury is irrelevant to this case, and their request to that extent will be denied.

With respect to the grand jury which did indict the defendants, the Court will permit the defendants to have access to all materials they have requested which are relevant to any challenge they may desire to make to the selection process of the grand jurors.

The defendants seek the names, addresses, and occupations of the members of the grand jury. The government contends that the defendants should be permitted access only to the master list from which the grand jurors were drawn.

The Court finds that the process by which the grand jury itself was chosen from the panel could be subject to a legal challenge. See Collins v. Walker, 329 F.2d 100, 105 (5th Cir.) Cert. denied, 379 U.S. 901, 85 S. Ct. 189, 13 L. Ed. 2d 175 (1964). However, the Court sees no reason why the defendants need the names and addresses of the members of the grand jury which indicted them. All that would be necessary would be the demographic data upon which a challenge could be made.

Accordingly, the Court will have the Clerk's office turn over relevant information about the makeup of the grand jury which indicted the defendants.

Although the government has indicated its willingness to turn over the information on the panel from which the jurors were chosen, the defendants have not requested that information. Accordingly, the Court will not order the Clerk's office to turn over that information. The Court is somewhat perplexed by this omission by the defendants because the defendants will have some difficulty in raising a challenge to the composition of the grand jury without knowing the composition of the panel from which the grand jury was chosen.

The defendants also seek transcripts of the opening and closing remarks of the prosecutors before the grand juries. There is a strong presumption of regularity in grand jury proceedings. See United States v. Winchester, 407 F. Supp. 261, 277 (D.Del.1975). The defendants have not raised any challenge which rebuts that presumption. Accordingly, the defendants' request for transcripts of the grand jury proceedings will be denied. However, the Court will examine the transcripts of those proceedings and disclose any wrongdoing to the parties as previously indicated. See page 78 Supra.

The defendants also seek documents setting forth the dates on which the grand jury heard testimony in order to "discover whether in fact that grand jury actually heard Any testimony prior to returning an indictment." Defendants' Reply Brief on Motion for Inspection, Reproduction and Copying of Records and Papers in the Custody of the Clerk of the Court, at 4 (April 3, 1979) (emphasis in original). The Court will keep the defendants' concern in mind as it examines the transcript of the grand jury proceedings.

The defendants also seek access to the date upon which the grand jury completed its term. Neither the Court nor the government has any objection to the release of this information.

XIV. THE DEFENDANTS ARE ENTITLED TO SOME DISCOVERY.

The defendants have made a motion for discovery. The government has resisted the defendants' request on detailed grounds that the defendants separate into five categories.

The government has refused to disclose any items which are undiscoverable, irrelevant, or immaterial. The defendants seek such information as data concerning the grand jury which indicted the defendants and the history of the government's relations with the Church of Scientology. The Court finds that these requests are plainly outside the scope of Federal Rule of Criminal Procedure 16.

The government has refused to disclose Jencks Act material, 18 U.S.C. § 3500, until the time it is required by statute to do so. During the informal phase of discovery, the government agreed to provide Jencks Act material a reasonable time in advance of trial. It is this Court's standard practice to add the precatory wish that the government turn over all Jencks Act material within ten days of the date of the trial. However, in view of the government's earlier representations, the Court shall require the government to fulfill its promise.

Accordingly, the government shall be required to turn over all Jencks Act material within ten days of the trial of this case.

The government has resisted producing some material because it has already provided it to some defendants. The Court finds that the material should be made available to the entire defense team, except as otherwise indicated at the hearing on February 21, 1979.

The government has agreed to make some material available but has not yet done so. The Court will in its order establish a timetable for requiring the government to hand over discoverable material.

XV. THE DEFENDANTS AND COUNTS ARE PROPERLY JOINED.

The defendants have filed numerous motions to sever counts and defendants. The general purpose behind the rules governing joinder are to promote efficiency and economy and to avoid a multiplicity of trials when these objectives can be fulfilled without substantial prejudice to the accused's right to a fair trial.

Bruton v. United States, 391 U.S. 123, 131 n. 6, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The district court possesses great discretion with [*87] respect to the grant or denial of a severance. United States v. Leonard, 161 U.S.App.D.C. 36, 46, 494 F.2d 955, 965 (1974). There is a strong federal policy favoring joinder and the balance has been approvingly struck in favor of joint trials. Id.

The joinder of defendants and offenses for a single trial is governed by Rules 8(b) and 14 of the Federal Rules of Criminal Procedure. Cupo v. United States, 123 U.S.App.D.C. 324, 326, 359 F.2d 990, 992 (D.C.Cir.1966), Cert. denied, 385 U.S. 1013, 87 S. Ct. 723, 17 L. Ed. 2d 549 (1967); See Bruton v. United States, 391 U.S. at 123 n. 6, 88 S. Ct. 1620, 20 L. Ed. 2d 476 . Rule 8(b) provides that joinder is proper if the defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Rule 14 provides for relief from prejudicial joinder of offenses or defendants.

The Court finds that the offenses charged in the indictment in this case allege the same series of acts or transactions within the requirements of Rule 8(b).

The predominant factor in the analysis of a joinder problem is the commonality of proof. Baker v. United States, 131 U.S.App.D.C. 7, 20-21, 401 F.2d 958, 971-72 (1978) (per curiam), Cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed.

2d 384 (1970). Thus, when there is a substantial degree of overlap in the evidence that will be adduced to prove the separate charges, the various allegations may be joined. Id.

The defendants contend that the conspiracy charged in Count One of the indictment and its substantive offenses must be severed from the conspiracy charged in Count Twenty-three and its substantive offenses. The first conspiracy allegedly had as its objective the collection of data by illegal means, and the second a cover-up of these activities. The joinder of two such offenses has been termed a "classical example" of a proper joinder. King v. United States, 355 F.2d 700, 704 (1st Cir. 1966) Citing United States v. Perlstein, 120 F.2d 276 (3d Cir.), Rev'd on other grounds, Second convictions aff'd, 126 F.2d 789, Cert.

denied, 316 U.S. 678, 62 S. Ct. 1106, 86 L. Ed. 1752 (1942). The Court finds that these allegations constitute a common series of transactions joinable under Rule 8(b).

The defendants also move to sever the perjury Counts Twenty-five through Twenty-eight, from the remainder of the indictment. The Court finds that these charges are so intimately connected with the second conspiracy charge that severance is uncalled for. Even if there were a separate trial on the Count Twenty-three conspiracy, the perjury charges would be admissible since the alleged perjury would be material and relevant to the charge of conspiracy to avoid detection. See United States v. Sweig, 316 F. Supp. 1148, 1158 (S.D.N.Y.1970), Aff'd 441 F.2d 114, 118- 19 (2d Cir.), Cert. denied, 403 U.S.

932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1971). And it would be admissible in a trial on the Count One conspiracy because it would be a false exculpatory statement. Id. Thus, there is the technical nexus required by Rule 8(b). Id. See also United States v. Mitchell, 372 F. Supp. 1239, 1256 (S.D.N.Y.1973); United States v. Hilliard, 436 F. Supp. 66, 75 (S.D.N.Y.1977).

In this case, the indictment charges the defendants with a multifaceted scheme with a consistent, logically interlocked set of goals, in furtherance of which overlapping groups of the defendants allegedly formed two conspiracies and committed substantive offenses. Accordingly, the indictment properly joins a series of acts or transactions within the meaning of Rule 8(b).

Under Rule 14 the Court must sever defendants and counts joinable under Rule 8(b) is prejudicial. At this time the Court finds that the defendants' right to a fair trial will not be substantially interfered with by trying this case as presently joined. Since the evidence as to each count and defendant would be admissible at separate trials, there would be no prejudice. See United States v.

Kim, 193 U.S.App.D.C. 370, at 385-386, 595 F.2d 755, at 770-771 (D.C.Cir. 1979).

Two of the defendants move to sever on the ground that there would be prejudicial spillover if they were tried with the other alleged conspirators because there is a disparity of evidence as to their respective involvement in the two conspiracies. The defendants rely on United States v. Mardian, 178 U.S.App.D.C. 207, 546 F.2d 973 (1976) and United States v. Kelly, 349 F.2d 720 (2d Cir. 1965), Cert. denied, 384 U.S. 947, 86 S. Ct. 1467, 16 L. Ed. 2d 544 (1966). The Court finds these cases to be distinguishable. In Mardian, the government consented to the severance: the defendant made a strong showing of prejudice at the pretrial stage, he was named in only one count, only five of forty-five overt acts named him, a substantial part of the evidence at trial would concern events after Mardian ceased active participation, and his attorney became ill in the midst of trial. 546 F.2d at 979-80. In Kelly, the proof supporting the defendant's participation in the over-all conspiracy was tenuous and insubstantial. 349 F.2d at 756. In this case, the defendant Hubbard is alleged to be a prime participant in the second conspiracy and has a significant role in the first conspiracy. And the Court has no evidence before it to indicate that the evidence against Hubbard or Thomas will be tenuous or insubstantial. Although the defendant Thomas is charged with a smaller role, safeguards are available to prevent substantial spillover. See Kelly v. United States, supra at 756-57.

The defendants also move to sever under United States v. Yates, 173 U.S.App.D.C.

308, 524 F.2d 1282 (1975) (per curiam). In Yates, the defendant took the stand and raised an alibi defense which consisted of a claim that he was with his companion Jones when the robbery he was charged with occurred. Id. 173 U.S.App.D.C. at 310, 524 F.2d at 1284. In rebuttal, a police officer took the stand and testified that after he placed the defendant and Jones into custody, and while they were being taken to the scene of the crime, Jones remarked that he had been with the defendant for only five minutes. Id. At trial, Jones invoked the fifth amendment and declined to testify. Id. The trial court allowed the officer's testimony under the rationale that the defendant's silence in the face of that accusation indicated his assent to its accuracy. Id., 173 U.S.App.D.C. at 311, 524 F.2d at 1285. The court of appeals rejected this basis because the defendant was at the time a prime suspect, in custody, in a police car, and in the presence of two policemen. Thus, it was not natural to assume that he would contradict the statement if it were inaccurate. Id. Moreover, the Court found that implying assent to an accusatory statement by silence in a custodial situation was at odds with the Supreme Court's decision in Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). United States v.

Yates, 173 U.S.App.D.C. at 311, 524 F.2d at 1285. After deciding that the statement was not admissible under the rationale of the lower court, the court faced the sixth amendment issue. Id.

The Court in Yates held that the admission of the statement violated the defendant's rights under the sixth amendment to confront the witnesses against him. In reaching this determination, the court listed three criteria which, if satisfied, would make the admission of an out-of- court statement by an unavailable declarant permissible under the sixth amendment. Id., 173 U.S.App.D.C. at 312, 524 F.2d at 1286. The Court did not rule that each of the three criteria listed was necessary in order to admit such a statement.

According to the court, such statements are admissible "At least when three conditions are satisfied . . .." Id., 173 U.S.App.D.C. at 313, 524 F.2d at 1286 (emphasis added). And the court stated, "admittedly, the precise contours of these three requirements are not free from doubt, nor is it certain whether all three must be satisfied in every case." Id. (citation omitted).

The three factors the court in Yates focused on to decide that case were: (1) the reliability of the statement; (2) whether the evidence was peripheral or devastating; and (3) whether the witness is equally available to the prosecution and the defense. Id. On the facts before it, the court found that the evidence was unreliable: "Clearly, grave doubts exist as to the sincerity of the self- serving statement," Id., it found that it was far from peripheral, and that the government could have granted Jones immunity to make him available to the defense. Id.

The defendants contend that the government is going to admit documents which implicate the defendants as admissions of co-conspirators in furtherance of the conspiracy under Rule 801(c). Since it is possible that the declarant-co-defendant will not take the stand at trial, the defendants will be faced with incriminating out-of-court declarations without the right of cross-examination. According to the defendants, these statements will not be peripheral and the witness would be available to the government through the granting of immunity. Therefore, the defendants contend that the government must choose between not offering these incriminating documents into evidence or severing the trial of defendants so that they may have the possibility of calling the declarants as witnesses.

The Court finds that Yates is distinguishable from this case. First, the court in that case had before it a statement of questionable reliability. In this case, the documents the government plans to introduce at trial are grounded on the presumed reliability of admissions against penal interest. And it is "the mission of the Confrontation Clause . . . to advance a practical concern for the accuracy of the truth-determining process in criminal trials . . .." Dutton v.

Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 220, 27 L. Ed. 2d 213 (1970). Thus, the reliability of the out-of-court declarations are of prime importance.

Second, the Court in Yates declined to address the question of whether the statement could be admitted under "any of the evolving, amorphous exceptions to the hearsay rule" but did first confront the question whether it was admissible as a failure to deny an accusation. 173 U.S.App.D.C. at 312, 524 F.2d at 1285.

In this case, evidence would be admissible under a long-recognized rule of evidence. Under the Federal Rules of Evidence, admissions of a co-conspirator are not exceptions to the hearsay rule, but are simply not hearsay at all. Rule 801(d)(2)(E). Although the fact that evidence is admissible does not mean it does not violate the confrontation clause, California v. Green, 399 U.S. 149, 155-56, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), the admissibility of evidence under a rule of evidence is a factor that is material to the court's determination. See Bruton v. United States, 391 U.S. 123, 128 n. 3, 88 S. Ct.

1620, 20 L. Ed. 2d 476 (1968); Dutton v. Evans, 400 U.S. 74, 85-89, 91 S. Ct.

210, 27 L. Ed. 2d 213 (1970).

Third, in Yates the court observed that the declarant was equally available to the government and the defendant because the government could have given him immunity from prosecution. In Yates, the declarant was not being prosecuted. 173 U.S.App.D.C. at 311, 524 F.2d at 1284. In this case, granting immunity would foreclose prosecution of those defendants. Furthermore, there is no indication on the part of the defendants or any proffer of exculpatory evidence which would be available if the co-conspirators were called. If such a showing were made, it would decrease the reliability of the proposed evidence and favor severance.

Moreover, there is no indication that severance would be an acceptable remedy.

Even if the defendants were tried separately, they would still have their fifth amendment privilege.

Fourth, Yates included in its consideration the fact that the evidence was peripheral. United States v. Yates, 173 U.S.App.D.C. at 311, 524 F.2d at 1286.

Other courts have not tended to treat that requirement with very much weight.

See United States v. King, 552 F.2d 833, 846 n. 16 (9th Cir. 1976), Cert.

denied, 430 U.S. 966, 97 S. Ct. 1646, 52 L. Ed. 2d 357 (1977). When there is substantial independent evidence to support the government's case this requirement is held to be satisfied. See United States v. Scholle, 553 F.2d 1109, 1120 (8th Cir. 1977), Cert. denied, 434 U.S. 940, 98 S. Ct. 432, 54 L. Ed.

2d 300 (1978). At this time the Court, of course, is completely unable to determine how devastating the evidence will be; thus, this factor can have little bearing on a pretrial determination in a case of this kind.

Fifth, other courts have focused on factors not discussed in Yates, which support the admission of the documents in this case. In United States v.

Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955 (1974) the court of appeals for this circuit suggested many factors which would be relevant to determine whether statements violated the confrontation clause. These factors included considerations which are present in this case: the co-conspirator allegedly had personal knowledge of the identity and role of the other participants, the jury will be able to weigh the credibility of the extra-judicial statements, the possibility that the statement was founded on faulty recollection was remote, and the statement was against the declarant's penal interest. Id., 161 U.S.App.D.C. at 50-51, 494 F.2d at 969- 70.

Accordingly, under the facts of this case, the Court finds that under the case-by-case approach required by the Supreme Court's plurality in Dutton v.

Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970), the defendant's constitutional right to confront the witnesses against them would not be violated by the introduction of reliable out- of-court declarations which satisfy the requirements of Rule 801(d)(2)(E). The Court recognizes that its duty under Rule 14 is a continuing one and that at present the contours of the evidence and prejudice has not yet been solidified. See United States v.

Hilliard, 436 F. Supp. at 75-76.

An order in accordance with the foregoing shall be issued of even date herewith.

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