Petition — Church of Scientology of California v. United States

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IN THE

Supreme Court of the United States

OctrosEeR TreRM, 1979

Tb atean @ 3- 5 2 9g

} Tur CHURCH or SCIENTOLOGY OF CALIFORNIA,

Petitioner,

Untrep States or AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

October 1979

Lzeonarp B. Boupin

Eric M. LizBERMAN

RaBINOWITZ, Boupin, STANDARD,

Krinsky & LIzBERMAN

30 East 42nd Street

New York, New York 19017

Attorneys for Petitioner

TABLE OF CONTENTS

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Reasons for Granting the Writ -.........02..20.20..2..--e

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APPENDICES:

Appendix A: Opinion of the Court of Appeals

Appendix B: Judgment of the Court of Appeals

Appendix C: Order of the Court of Appeals

Denying Petition for Rehearing and Sugges-

COO Oe MUON EIE GPE DOME nn... ecoccesnseneveceeess

Appendix D: Judgment of the District Court

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Appendix E: Opinion of the District Court

ESOT SE ee a

Appendix F: Opinion of the District Court

een cetinhcenainncniensssbnesere

Appendix G: Opinion of the District Court

for the District of Columbia in Jn re Search

Warrant Dated July 4, 1977 (August 24, 1979)

14la

TABLE OF AUTHORITIES

Cases: PAGE

Application of United States, 427 F.2d 1140 (5th Cir.

SE eae Coe rae rar Sen 9,11, 12

Austin v. United States, 521 F.2d 548 (9th Cir. 1975) 11

Carroll v. Uniied States, 354 U.S. 394, 404 n.17 —.......... 10

Cogen v. United States, 278 U.S. 221 000. 7

Coury v. United States, 426 F.2d 1354 (6th Cir. 1970) 7,10

DiBella v. United States, 369 U.S. 121 ......... sapaieieee passim

Gottone v. United States, 345 F.2d 165 (10th Cir. 1965) 7

In re Search Warrant Dated July 4, 1977, 436 F.Supp.

689 (D.D.C. 1977), reversed, 572 F.2d 321 (D.C. Cir.

1977), cert. denied sub nom, Founding Church of

Scientology v. United States, 435 U.S. 925 200000... 4,5

Meier v. Keller, 521 F.2d 548 (9th Cir. 1976) 2000000000... 9,11

Parrish v. United States, 376 F.2d 601 (4th Cir. 1967) 11

Shea v. Gabriel, 520 F.2d 879 (1st Cir. 1975)... 7,10

Smith v. United States, 377 F.2d 739 (8rd Cir. 1967) 11

United States v. Alexander, 428 F.2d 1169 (8th Cir.

LS | ean ee Set Rae Cen SOC NEE STORET SSE apo 7, 9,10

United States v. Glassman, 533 F.2d 262 (5th Cir.

| EN Oe Gee Ne ee aeRO eT. 9,11,12

Umited States v. Ryan, 402 U.S. 530 0000 .. 7,9, 10, 12

United States v. Williams, 459 F.2d 909 (6th Cir. 1972) 10

VonderAhe v. Howland, 588 F.2d 364 (9th Cir. 1975) 11

ill

PAGE

United States Constitution

I SIRS EN ee NOR IRON RE TD 5, 8

Os. IS rac te lnaloms 2, 8,12

Statutes and Rules

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na IR aria cad cease sun mrehedaeaeidaoeecaien 2, 6, 10

Se Cr TE 6 ees cicickithacaene passim

IN THE

Supreme Court of the United States

OctToBER TERM, 1979

THE CHURCH OF SCIENTOLOGY OF CALIFORNIA,

Petitioner,

Unitep SraTes oF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Church of Scientology of California petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit in this case.

Opinions Below

The opinion of the court of appeals (App. A, 1la-16a) is

reported at 591 F.2d 533 (9th Cir. 1979). The district court

opinion (App. E, 23a-83a) is unreported; its prior opinion

(Appendix F, 84a-140a) also is unreported.

Jurisdiction

The judgment of the court of appeals (App. B, 17a) was

entered on February 22, 1979. A petition for rehearing and

suggestion of rehearing en banc was denied on June 6,

1979 (App. C, 19a). On August 24, 1979, Mr. Justice Rehn-

quist granted an order extending the time within which to

file a petition for writ of certiorari to and including October

1, 1979. The jurisdiction of this Court is invoked under

28 U.S.C. §1254 (1).

Question Presented

Whether the Church of Scientology of California may

appeal from a final order of the district court denying its

application under Rule 41(e) of the Federal Rules of

Criminal Procedure for the return of property allegedly

seized in violation of the Fourth Amendment when, during

the pendency of its appeal, a grand jury in a different

jurisdiction indicted eleven individuals, not the Church,

on matters relating to the materials seized?

Statutes and Rules Involved

28 U.S.C. § 1291 provides:

The courts of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the

United States, the United States District Court for

the District of the Canal Zone, the District Court of

Guam, and the District Court of the Virgin Islands,

except where a direct review may be had in the Su-

preme Court.

Rule 41(e) of the Federal Rules of Criminal Procedure

provides:

A person aggrieved by an unlawful search and seizure

may move the district court for the district in which

the property was seized for the return of the property

on the ground that he is entitled to lawful possession

of the property which was illegally seized. The judge

shall receive evidence on any issue of fact necessary

to the decision of the motion. If the motion is granted

the property shall be restored and it shall not be ad-

missible in evidence at any hearing or trial. If a

motion for return of property is made or comes on for

hearing in the district of trial after an indictment or

information is filed, it shall be treated also as a motion

to suppress under Rule 12.

Statement

1. On July 8, 1977, approximately 130 F.B.I. agents,

acting pursuant to two search warrants, conducted simulta-

neous searches of two Los Angeles premises of the Church

of Scientology of California (the Church), seizing over

48,000 documents comprising 102,000 pages. On the same

date, F.B.I. agents executed an identical search warrant at

the Founding Church of Scientology in Washington, D.C.

On July 12, 1977, petitioner filed a motion for return of

property pursuant to Rule 41(e), F.R.Crim.P., in the United

States District Court for the Central District of California.

Petitioner alleged that the California search and seizure

were unlawful because, inter alia: (1) the search warrant

did not describe with particularity the premises to be

searched and the items to be seized; and (2) even if the

warrant was facially proper, the searching party grossly

exceeded the limits of the warrant and conducted a general

search. Petitioner sought the return of its property, de-

scribing the documents seized as relating to the Church

and protected by the First Amendment. Petitioner also

included a request for suppression of the documents as

evidence, as authorized in Rule 41(e).

On July 15, 1977, the Founding Church of Scientology

in Washington filed a Rule 41(e) motion in the United

States District Court for the Distriet.of Columbia, chal-

lenging the Washington, D.C. search and"eeizure on similar

grounds.

The District of Columbia case was decided first. In re

Search Warrant dated July 4, 1977, 436 F. Supp. 689

(D. D.C. 1977). On July 27, 1977, District Judge William

B. Bryant held that the Washington search warrant was

facially invalid as a general warrant because it did not

sufficiently identify the items to be seized. Judge Bryant

ordered that the documents seized be returned to the

Founding Church of Scientology and that they be sup-

pressed as evidence.

On August 8, 1977, District Judge Malcolm Lucas, rely-

ing upon Judge Bryant’s decision, issued a similar ruling

with respect to the identically worded Los Angeles war-

rant, ordering the return of the documents seized in the

California search to the petitioner.

On December 1, 1977, the United States Court of Ap-

peals for the District of Columbia Circuit reversed Judge

Bryant’s decision with respect to the facial validity of the

District of Columbia search warrant. In re Search War-

rant dated July 4, 1977, 572 F.2d 321 (D.C. Cir. 1977). The

? Contrary to the statement in the opinion of the court of appeals,

the Church did not seek suppression “on behalf of its employees”

(14a).

court held that the scope of the warrant was limited by

the affidavit of F.B.I. Agent Tittle, which had been sub-

mitted with the proposed warrant to the magistrate, and

that, so limited, the warrant was constitutionally accept-

able. The court of appeals remanded the case for further

proceedings on the issues not yet adjudicated before Judge

Bryant. This Court denied certiorari on March 20, 1978.

Founding Church of Scientology v. United States, 435 U.S.

925.

On April 4, 1978, Judge Lucas issued a memorandum

and order in the instant case in which he followed the

decision of the Court of Appeals for the District of Colum-

bia and upheld the validity of the search warrant on its

face (App. F, infra). He rejected petitioner’s contentions

that the seizure of documents contravened the First Amend-

ment, that the search warrant was issued without probable

cause, that the government had executed the warrant in

bad faith, that the FBI agents used excessive force in ex-

ecuting the warrant, and that the search and seizure were

defective because many of the executing agents did not have

the affidavit in support of the warrant when they carried

out the search. Judge Lucas deferred consideration of the

Church’s challenges to the scope, duration, and physical

extent of the searches.

An evidentiary hearing was convened on June 6, 1978 to

consider the remaining issues, On July 5, 1978, Judge

Lucas issued an opinion and order denying petitioner’s

request for further evidentiary hearings, dismissing the

Rule 41(e) petition, upholding the validity of the Cal-

ifornia searches, and awarding costs to the government.?

. On August 24, 1979, Judge Bryant reached quite contrary con-

clusions concerning the search of the Founding Church of Scien-

tology in Washington. Judge Bryant held that the searching

2. Petitioner appealed to the Court of Appeals for the

Ninth Circuit pursuant to 28 U.S.C. §1291. While the

appeal was pending, a grand jury in Washington, D.C.

returned a twenty-eight count indictment against eleven

individuals, some of whom were members of the Church

and others of whom were members of other Scientology

churches. The government presented some of the doc-

uments seized during the raid on the California Church’s

premises on July 8, 1977 to the grand jury. The govern-

ment further has stated its intention to use over 200 of such

documents at trial to prove its allegations against the eleven

individual defendants. The Church was not named in the

indictment as either a defendant or an unindicted co-

conspirator.

On February 22, 1979, the Court of* Appeals for the

Ninth Circuit dismissed the Church’s appeal from Judge

Lucas’ order and opinion in the Rule 41(e) proceeding.

While twice acknowledging that “the matter is not free

from doubt” (App. A at 5a, 15a), the court held that “the

principles applied in DiBella v. United States, 369 U.S.

121, require that the appeal be dismissed” (Id. at 5a). The

court conceded that “DiBella is not precisely in point”

(Id. at 7a) because here the party seeking relief under

Rule 41(e) is not the subject of a “complaint, arraignment,

information, indictment [or] ... arrest,” while “in DiBella

there was arrest, arraignment and indictment” (8a). Never-

theless, the court found that the Church cannot appeal the

agents “illegally and unconstitutionally executed this warrant and

converted their seizure of documents into a general exploratory

seizure in violation of the Fourth Amendment and of 1° U.S.C.

§2234.” (See App. G, 14la-16la, at 158a). Judge Bryant ordered

all seized documents to be returned to the Founding Church of

Scientology and to be suppressed from use at any hearing or trial.

7 ¢

district court’s ruling against it because to allow an appeal

would violate “the principle . . . that an ongoing criminal

proceeding is not to be interrupted by an appeal from an

order denying suppression of evidence that may be used

in that proceeding” (13a-14a).

The court held that because the Church had sought not

only return of its property but also suppression, it could

not appeal the decision of the district court denying both

requests.

The court of appeals concluded by stating that “[t]here

must, at some time, be a remedy available to the Church

for the return of its property, if it has been unlawfully

taken.” The court purported to “decide nothing more”

than that “the present appeal is not that remedy” (16a).

It did not suggest what remedy the Church might have, or

when or how it might invoke it.

Reasons for Granting the Writ

1. Tue opinion of the court of appeals conflicts with

decisions of this Court and other circuit courts of appeals

holding that a party not the subject of a pending crim-

inal proceeding may appeal from an adverse ruling on

a Rule 41(e) application for return of property allegedly

seized unlawfully. United States v. Ryan, 402 U.S. 530, 533;

Cogen v. United States, 278 U.S. 221, 225; Gottone v. United

States, 345 F.2d 165 (10th Cir. 1965); United States v.

Alexander, 428 F.2d 1169, 1171 (8th Cir. 1970); Coury v.

United States, 426 F.2d 1354 (6th Cir. 1970). While con-

siderable confusion reigns over the question of the appeal-

ability of denials of Rule 41(e) motions, see, e.g., Shea v.

Gabriel, 520 F'.2d 879, 880-882 (1st Cir. 1975), and cases

cited therein, this is the first case to our knowledge which

subordinates the right of a litigant to recover his own

property seized in violation of the First and Fourth Amend-

ments to the government’s desire to use that property in

grand jury, extradition and trial proceedings against other

persons. In addition, the issues arise in a most disturbing

context—raids of unprecedented scope against a Church

in which the government has seized privileged religious

and attorney-client materials. As this Court stated in

DiBella v. United States, 369 U.S. 121, a case involving

related issues:

Not only disagreement among the circuits but dubieties

within them demand an adjudication based upon

searching consideration of such conflicting and con-

fused views regarding a problem of considerable im-

portance in the proper administration of criminal

justice.

369 U.S. at 124.

As we note above (ante, p. 6), the court of appeals in

this case itself expressed “dubieties” about the result it

reached. It acknowledged that the DiBella decision, on

which it relied, was “not precisely in point” (7a) because

DiBella dealt with the appellate rights of persons against

whom criminal proceedings had been instituted, while no

such proceedings are pending or imminent against the

Church. To justify its holding, the court of appeals

fastened upon the language in DiBella (369 U.S. at 124)

that “Only if the motion [under Rule 41(e)] is solely for

the return of property and is in no way tied to a crim-

inal proceeding im esse against the movant can the pro-

ceeding be regarded as independent” (6a). It purported

to find support for its conclusion in several opinions of

other courts of appeals which “carry the DiBella principle

a little farther.” (8a). The court of appeals concluded

by noting for the second time that its decision was “not

free from doubt” (15a) because of this Court’s decision in

United States v. yan, where the Court stated:

Only in the limited class of cases where denial of im-

mediate review would render impossible any review

whatsoever of an individual’s claims have we allowed

exceptions to this principle. We have thus indicated

that review is available immediately of a denial of a

motion for the return of seized property, where there

is no criminal prosecution pending against the movant.

See DiBella v. United States, supra. [369 U.S. at 131-

132]. Denial of review in such circumstances would

mean that the Government might indefinitely retain

the property without any opportunity for the movant

to assert on appeal his right to possession.

402 U.S. at 533.

Even though its opinion left the Church totally “without

any opportunity ... to assert on appeal [its] right to pos-

session,” the court of appeals did not attempt to reconcile

its holding with Ryan. Other courts of appeals, however,

have essayed to interpret DiBella and Ryan in a consistent

matter. In United States v. Alexander, 428 F.2d 1169 (8th

Cir. 1970), for example, the court held that DiBella forbids

appeal of a Rule 41(e) motion to return and to suppress

only where the*motion was not independent of a criminal

proceeding: “When the order rendered on the [Rule 41(e) ]

motion is independent of any criminal prosecution against

the movant it is considered ‘final’ within the meaning of

* The court relied principally upon Application of United States,

427 F.2d 1140 (5th Cir. 1970); United States v. Glassman, 533

F.2d 262 (5th Cir. 1976), and its own decision in Meier v. Keller,

521 F.2d 548, 556 (9th Cir. 1976).

§ 1291.” 428 F.2d at 1171. The court further held that a

Rule 41(e) motion for return of property is not rendered

non-appealable merely because the movant also seeks sup-

pression, noting that this Court had declined to hold “that

a motion made under Rule 41(e) gains or loses appealability

simply upon whether it asks return or suppression or both.”

428 F.2d at 1171, n. 3, quoting from Carroll v. United

States, 354 U.S. 394, 404 n. 17.

The Sixth Circuit has analyzed the question a little dif-

ferently but it, too, would allow the Church to appeal in

the instant case. It has held that that part of a Rule 41(e)

motion which seeks suppression is not appealable under

DiBella, but that that portion of the motion which seeks

return of the property is and must be appealable under

DiBella and Ryan if the party seeking return of the prop-

erty is not the subject of pending criminal proceedings.

Coury v. United States, 426 F.2d 1354 (6th Cir. 1970);

United States v. Williams, 459 F.2d 909 (6th Cir. 1972).

The First Cireuit, while not resolving the question

finally, has indicated its agreement with the Sixth Circuit’s

approach, Shea v. Gabriel, 520 F.2d 879 (1st Cir. 1975).

In Shea, the court canvassed the confusing and conflicting

attempts by the various circuits to decide the question in

light of DiBella and Ryan. It noted that to deny a party

against whom a criminal proceeding had not been instituted

the right to appeal from an order denying its motion for

return of property would contradict the clear statement in

Ryan that such a party must have the right to appeal. It

stated the sensible view that it would “exalt form over sub-

stance” as well as overburden the federal courts to insist

that such a party file a separate motion for return of prop-

erty in order to preserve its right to appeal that issue.

And it aligned itself with at least the Sixth, Eighth and

Tenth Circuits in insisting that a criminal proceeding is

not im esse against a movant until “the criminal process

shifts from the investigatory phase to the accusatory.” 520

F.2d at 882.

While other courts have disagreed on the precise cir-

cumstances under which a Rule 41(e) motion may be ap-

pealed, no case until the court of appeals decision in this

case explicitly denied a party not subject to a pending

criminal proceeding an opportunity to appeal. In Parrish

v. United States,‘ Smith v. United States,’ Austin v. United

States,’ Meier v. Keller,’ and United States v. Glassman,’

indictments were returned against the moving party be-

fore the decisions denying appealability were rendered

by the courts of appeals. In each such case, the court

recognized that an appeal would be allowed if no criminal

proceedings were pending against the party seeking appeal.

Indeed, the Ninth Circuit itself so held until the panel’s

decision in the instant case. VonderAhe v. Howland, 588

F.2d 364, 368 (9th Cir. 1975), and cases cited therein.

The court of appeals below placed greatest reliance upon

Application of United States, 427 F.2d 1140 (5th Cir. 1970),

which denied appealability after an indictment had been

returned. Nothing in the opinion in that case indicated

that any of the appellants were not the subject of a criminal

proceeding. Language in United States v. Glassman, supra,

which was decided six years later, indicated that three of

the appellants in Application of United States were not

indicted, although they apparently were targets of an on-

*376 F.2d 601 (4th Cir. 1967).

° 377 F.2d 739 (3rd Cir. 1967).

°521 F.2d 548 (9th Cir. 1975).

* 353 F.2d 512 (4th Cir. 1967).

*533 F.2d 262 (5th Cir. 1976).

going grand jury investigation. Even if so, there was no

indication that the court in Application was aware of that

fact or analyzed its importance. The decision, as inter-

preted by Glassman and reinterpreted by the court below,

hardly is persuasive authority for disregarding this Court’s

clear statement in Ryan, as applied by the other circuits.

2. The court of appeals’ decision creates a dangerous

loophole by which the government can immunize itself

from any judicial review whatsoever of even the most

flagrantly unlawful search and seizure. All the govern-

ment need do is indict third parties with no privacy in-

terest in the documents seized or the premises searched.

The third parties will not have standing to move to sup-

press, and under the court of appeals’ decision below, the

parties whose rights were violated will be powerless to

seek return of their property once a criminal proceeding

is instituted.

It is precisely to protect against such a result that Rule

41(e) itself provides, in terms, for the termination of a

separate proceeding for the return of property only where

the movant himself becomes the subject of an indictment.

The clear intent of the provision is to preserve the rights

of an unindicted person to seek and obtain return of his

property if it was unlawfully seized. The court of appeals’

decision undermines the scheme of the Rule which ensures

that all violations of Fourth Amendment rights may be

quickly corrected,

CONCLUSION

The court of appeals decision reached an untenable re-

sult in conflict with the mandates of this Court’s de. isions.

It creates further confusion in an area of the law which

already is unsettled. Resolution of the problem is critical

to the proper administration of criminal justice, just as it

was in the DiBella case.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Leonarp B. Boupin

Eric M. LizperMan

Rasrnowitz, Bounin, STANDARD,

Krinsky & Lieperman

30 East 42nd Street

New York, New York 10017

Attorneys for Petitioner

October 1979

Affidavit of Service

I hereby certifiy that on September 28, 1979, I caused

three copies of the foregoing Petition for a Writ of Cer-

tiorari to be served by first class mail, postage prepaid,

upon the Office of The Solicitor General, U.S. Department

of Justice, 10th and Constitution Avenue, Washington,

D.C. 20530. I further certify that all parties required to be

served have been served.

Dated: New York, N. Y.

September 28, 1979

Lovis Mark

Quinton C. Van WYNEN

Notary Public, State of New York

No. 24-4087465

Qualified in Kings County

Commission Expires March 30, 1981

Appendices

APPENDIX A

OPINION of the COURT

Of APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHURCH OF SCIENTOLOGY OF )

CALIFORNIA, )

Petitioner-Appellant, )

Vs.

UNITED STATES OF AMERICA,

Respondent-Apellee.

— ONO Oe te we

No. 78-2434

OPINION

Appeal from the United States District

Court for the Central District of

California

Before: DUNIWAY and CHOY, Circuit

Judges, and SOLOMON, *

District Judge

*The Honorable Gus. J. Solomon, Senior

DUNIWAY, Circuit Judge

The Church of Scientology of Cali-

fornia appeals from a judgment denying

its application under Rule 42(e@), PAR,

Crim. P., for the return Of property

seized under certain search Warrants and

for the suppression of the evidence

seized. We conclude that we do not have

jurisdiction, and dismiss the appeal.

On July 7, 1977, two search Warrants

were obtained authorizing search of

certain offices of the Church, located

in two buildings that it owns in Los

Angeles. A similar warrant was

obtained for a search Of part of a

building owned by the Founding Church of

Scientology in Washington, D.C. The

affidavits in Support of the warrants

were Substantially identical, and so were

the warrants, except for descriptions of

the premises to be searched. There was

a separate warrant for each place to be

searched. The warrants were executed

United States District Judge for the

District of Oregon, sitting by designation.

Simultaneously at 9:00 a.m, Washington

time, and at 6:00 a.m Los Angeles time,

Many files were examined at each place,

in an effort to find the Papers listed

in 161 separate Paragraphs of the

warrants, and in Paragraph 162 of each,

Which reads:

Any and all fruits, instru-

mentalities, and evidence (at

this time unknown) of the crimes

of conspiracy, obstruction of

justice ana theft of government

Property in violation of 18 U.S,

Code §§371, 1503 and 641 of which

facts recited in the accompany-

ing affidavit make out,

The Church asserts that more than

20,000 documents were seized. Motions

to recover the Seized documents were

filed on July 12, 1977, in the District

Court for the Central District of

California, and on July 15, 1977, in the

District Court for the District of

Columbia. In the District of Columbia,

the District Court granted the Church's

motion. The Court of Appeals reversed,

See In re Search Warrant dated July 4,

1977, D.D.C., 1977, 436 F.Supp. 689; Id.,

D.C. Cir., 1977, 572 F.2d 321, cert,

denied, sub nom Founding Church of

Scientology v. United States, 435 U.S.

925 (1978).

Throughout the proceedings in the

District Court in the case at bar, the

Church has made it clear that the princi-

pal reason for its motion has been and is

to prevent the use of any of the seized

papers for the purpose of obtaining in-

dictments against either the Church or

its officials or employees. A grand

jury in the District of Columbia had

been considering the offenses mentioned

in the affidavits supporting the search

warrants - conspiracy to steal govern-—

ment property, conspiracy to obstruct

justice, theft of government property,

and obstruction of justice. Many of the

seized documents have been presented to

that grand jury, both before and during

the proceedings in this case. Since this

case began, and on August 15, 1978, the.

District of Columbia grand jury has in-

dicted 11 persons, at least some of them

officials or employees of the Church,

So far as we are advised, however, the

Church has not been indicted.

Under orders of the District Court,

the government has supplied the Church

with two sets of copies of all documents

seized, except for certain ones that,

according to the government, are its

property and are of a sensitive or

confidential character,

Although the matter is not free

from doubt, we conclude that the prin-

ciples applied in DiBella v. United

States, 1963, 369 U.S. 121, require

that the appeal be dismissed. There,

two persons were involved. One,

DiBella, had been arrested under a

warrant, and he was arraigned and re-

leased on bail. Some evidence was seized

when he was arrested. He moved to sup-

press the seized evidence. While the

motion was pending, he was indicted.

The motion to suppress was denied, and

he appealed. The other person, Koenig,

had been arrested in Florida on the

basis of a complaint charging bank

robbery in Ohio. He filed a proceeding

in the federal court in Flerida, to

Suppress seized property, while re-

moval proceedings were pending. Mean-

while, Koenig had been indicted in

Ohio. Thereafter, the Florida District

Court granted suppression but denied re-

turn of the property. Koenig appealed

from the denial of his motion for return

of his property. The Supreme Court held

that neither order was appealable.

The Court's holding is stated as

follows:

We hold, accordingly, that the

mere circumstance of a pre-indict-

ment motion does not transmute

the ensuing evidentiary ruling

into an independent proceeding

begetting finality even for pur-

poses Of appealability. Pre-

sentations before a United States

Commissioner [citation omitted]

as well as before a grand jury

[citation omitted] are parts of

the federal prosecutorial sys-

tem leading to a criminal trial.

Orders granting or denying sup-

pression in the wake of such

proceedings are truly inter-

locutory, for the criminal trial

is then fairly in train. When

at the time of ruling there is

outstanding a complaint, or an

arraignment, information or

indictment -- in each such case

the order on a suppression

motion must be treated as "but

a step in the criminal case pre-

liminary to the trial thereof."

[Citation omitted.] Only if the

motion is solely for return of

property and is in no way tied

to a criminal prosecution in

ease against the movant can the

proceeding be regarded as inde-

pendent.

Id. at 131-32 (emphasis added).

The Court also disposed of another

argument that could be made for appeal-

ability in this case, that this case

was decided by a District Court in

California, where the seizure occurred,

while the criminal proceeding is in the

District of Columbia.

An alternative ground for

appealability in the Koenig

case, likewise culled from

dicta in some of our decisions,

would assign independence to

the suppression order because

rendered in a different dis-

trict from that of the trial.

Id at 132.

st kk *

Rule 41(e), of course, speci-

fically provides for making

of the motion in the dis-

trict of seizure. On a

summary hearing, however,

the ruling there is likely

always to be tentative.

We think it accords most

satisfactorily with sound

administration of the Rules

to treat such rulings as

interlocutory.

Id at 132-33.

We recognize that DiBella is not

precisely in point. While the grand

jury had been investigating the Church,

has

there has been no complaint, arraign-

ment, information or indictment against

it, nor any arrest. In DiBella there

was arrest, arraignment, and indictment;

in Koenig there was a complaint, an

arrest, and an indictment,

Later cases, however, carry the

DiBella principle a little farther.

In Application of United States, 5 Cir.

1970, 427 F.2d 1140, this was the court's

holding, concerning motions to suppress

filed before any indictments were re-

turned,

2. The appellants' motions in

the court below included a demand

for the return of property, but

the Court in DiBella held that

"[o]nly if the motion is solely

for return of property and is in

no way tied to a criminal prose-

cution in esse against the movant

can the proceedings be regarded

as independent."

(Emphasis supplied.) 369 U.S.

at 131, 132, 82 S.Ct. at 660.

As regards the appellants

Dudley, the three Sklaroffs,

Blott and Richmond, who are now

under indictment for violations

of Title 18, U.S.C., their

motion to suppress is an integral

part of criminal proceedings in

esse the denial of which is non-

appealable at this time. In a like

manner, the motion to suppress of

ATI

appellants Rogers, Wittell and

Green is nonappealable for the

motion is not solely for the re-

turn of property, in conformity

to the DiBella rule, but primarily

seeks suppression of evidence

from grand juries in criminal

proceedings. DiBella v. United

States, supra at 13l, 132,

82 S.Ct. at 660, 661.

Subsequent language in the opinion

can be read to indicate that the last

three persons mentioned were also in-

dicted. However, in United States v.

Glassman, 5 Cir., 1976, 533 F.2d 262,

the court tells us that this was not so.

The order [of the district

court] denying this motion was

dated September 12, 1975;

appellant apparently was never

detained. So according to

the literal language of DiBella

there was no criminal prosecu-

tion in esse at the time this

appeal was brought. But in

Application of United States

- e« e three of the appellants

were not indicted by the grand

jury, and yet the court found

that their Rule 4l(e) motion

was made primarily to suppress

evidence from the anticipated

grand jury hearings and there-

fore was not made "solely for

10a

return of property" as DiBella

requires. . .« e

id at 263.

Both Glassman and Application of United

States, and especially the latter, support

dismissal of the appeal that is before us.

Our decision in Meier v. Keller,

9 Cir., 1975, 521 F.2d 548, 556, cert.

denied, 424 U.S. 943 (1976), is also

persuasive.

The denial of a preindictment

motion or comparable relief is

an interlocutory nonappealable

Order unless "the motion is

solely for return of property

and is in no way tied to a

criminal prosecution in esse

against the movant." DiBella ...

Meier's appeal meets neither

criterion for appealability.

His complaint sought sup-

pression as well as return. ...

[T]here was already a criminal

prosecution in esse because

presentment had been made to the

Nevada grand jury at the time

the complaint [for Rule 41l(e)

relief] was filed [ in the

Central District of California].

Thus, the appeal should be dis-

missed for want of jurisdiction

in this court.

In Parrish v. United States

lla

4 Cir., 1967, 376 F.2d 601, the plaintiffs

sought, under Rule 4l(e) return of records

obtained from them by Internal Revenue

agents, allegedly by fraud, and their sup—

pression as evidence, Relief was denied,

and they appealed. At that time, so far

aS appears, there was no indictment and

no other criminal proceeding pending

(p. 602). Later, they were indicted.

On the authority of DiBella, supra, the

appeal was dismissed. Judge Boreman would

have gone further and held the order not

appealable even if there had been no in-

dictment (pp. 603-04).

In Smith v. United States, 3 Cir.,

1967, 377 F.2d 739, Smith and his wife

petitioned for an injunction prohibiting

the presentation of certain evidence to

a grand jury, prohibiting its use in

prosecuting the petitioners, and requiring

return of the evidence. The petitioning

husband and wife had produced the records

relating to their income at the request

of the Internal Revenue Service. When

their action was filed, they had not been

indicted. While their petition was under

submission, they were indicted for income

tax evasion. Nine days later, their

petition was denied. The court held that

the denial was not appealable, citing

12a

DiBella, supra, despite the f&ct that the

petitioners had not been indicted when

they filed their petition. The rationale

was that the petition was not solely for

the return of property; it sought to en-,

join use of the evidence looking toward

proseuction; it was tied to an incipient

Criminal proceeding (p. 742).

Austin v. United States, 4 Cris

1962, 333 F.2d 512, is similar to Smith

v. United States, supra, that an order

denying a petition to have suppressed,

in advance of indictment, documents

that petitioner claimed the I.R.S. had

obtained from her by fraud (see Austin v

United States, 4 Cir., 1961, 297 F.2a

359), was not appealable,

Our decision in Goodman v, United

States, 9 Cir., 1966, 369 F.2d 166, is

different. There, as we said, "there

is, and has been, no criminal proceed-

ing in any stage." (p. 168.) Not so

in the case at bar,

In Cobbledick v. United States,

1940, 309 U.S. 323, the Court held that

an order denying a motion to quash a

subpoena duces tecum to appear and pro-

duce documents before a grand jury is

not appealable. Part of the rationale

was that it would be undesirable to per-

mit a witness, by appealing, to halt an

13a

Ongoing criminal proceeding. Thus, he

cannot appeal, even though he could not

appeal from the final decision in the

Criminal case because he is not a party

to it (p. 326). See also Alexander v.

United States, 1906, 201 U.S. hi?

United States v. Ryan, 1971, 402

U.S. 530, is similar. As Mr. Justice

Brennan said:

Only in the limited class of cases

where denial of immediate review

would render impossible any re-

view whatsoever of an individual's

claims have we allowed exceptions

to this principle. We have thus

indicated that review is avail-

able immediately of a denial of

a motion for the return of seized

property, where there is no

criminal proseuction pending

against the movant. see DiBella

ve. United States, supra, [369

U.S. at] at 131-132. Denial of

review in such circumstances

would mean that the Government

might indefinitely retain the

property without any opportunity

for the movant to assert on appeal

his right to possession.

The principle that runs through all

of these authorities is that an ongoing

criminal proceeding is not to be

l4a

interrupted by an appeal from an order

denying suppression of evidence that may

be used in that proceeding. This is

such a case. There was, and so far as

the record shows, there is an ongoing

proceeding before at least one grand

jury, in the District of Columbia. The

parties tell us that there is, Or was,

another proceeding before a Federal

grand jury in New York. There is also

a proceeding pending in Great Britain

to extradite two of the persons indicted

by the District of Columbia grand jury,

and some of the seized papers are being

used in that proceeding.

The petition or motion here did not

and does not seek only the return of the

property. It expressly seeks Suppression

of evidence, and is avowedly aimed at

Suppressing evidence in grand jury,

extradition, and other criminal proceed-

ings.

Moreover, suppression in this case

is sought by the Church on behalf of its

employees as well as on its own behalf.

Some or all of those employees may not

have standing to seek suppression.

Suppression at the behest of the Church

would be an abuse of Rule 4l(e), and is

an additional reason to deny appealability.

15a

Similarly, suppression of evidence that

is to be presented to the grand jury is

sought, although the government would

have the right, under the decision in

United States v. Calandra, 1974, 414

U.S. 338, to use the evidence before

the grand jury as the basis of questions

to a witness, even though the evidence

may have been obtained in violation of

the Fourth Amendment. Zurcher v.

Stanford Daily, 1978, 436 U.S. 547, holds

that, upon a proper showing of probable

cause, a warrant may issue authorizing a

search of the premises of an innocent

third party for evidence of crime.

Usually, the criminal would have no

standing to suppress such evidence. Yet,

if a denial of a motion by the thira

party for return of the evidence and to

Suppress it were appealable, presenta

tion of the case against the criminal

to a grand jury could be delayed for

long periods of time, Surely, if the

evidence can be obtained, it can also be

retained during the progress of the

criminal proceeding. Yet it is retention

that the Church seeks to terminate here.

Our decision that the order appealed

from is not appealable is not free from

doubt, for the reasons states by Mr.

Justice Brennan in United States v. Ryan,

17a

l6a

Supra. There must, at some time, be a en

remedy available to the Church for the

return of its property, if it has been JUDGMENT of the

unlawfully taken. But the present appeal

is not that remedy. We decide nothing COURT Of APPEALS

more,

Appeal dismissed, UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHURCH OF SCIENTOLOGY OF

CALIFORNIA,

Petitioner-Appellant,

VS.

UNITED STATES OF AMERICA,

Respondent-Appellee.

eee eee eee ee oe

No. 78-2434

Appeal from the United States District

Court for the Central District of

California

JUDGMENT

This case came on to be heard on the

18a

transcript of the record from the United

States District Court for the Central

District of California, and was duly

submitted.

On CONSIDERATION WHEREOF, it is

her: by ordered and adjudged by this

court that the appeal be and hereby is

dismissed,

Judgment Filed and

Entered February 22,

i979.

eee 7 vr

19a

APPENDIX C

ORDER Of the couRT of

APPEALS DENYING PETITION

for REHEARING and SUGGESTION

of a REHEARING en banc

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHURCH OF SCIENTOLOGY OF

CALIFORNIA,

Petitioner-Appellant,

vs.

UNITED STATES OF AMERICA,

Respondent-Appellee.

No. 78-2434

ORDER

Before: DUNIWAY and CHOY, Circuit

Judges, and SOLOMON,*

District Judge

—

ee ee ee ee ee ee 8

*The Honorable Gus. J. Solomon,

Senior

2la

20a

The petition for a rehearing is APPENDIX D

denied. The suggestion of a rehearing

, to all of the

in banc has been submitted JUDGMENT of the DISTRICT COURT

active judges of this court in regular (July 5, 1978)

active service. No judge of the court

or of the panel that decided this case

has called for a vote upon the sug-

gestion of a rehearing in banc. ve POR Chd MEME wencuce

Suggestion of a rehearing in banc is

UNITED STATES COURT OF APPEALS

rejected.

CHURCH OF SCIENTOLOGY OF

CALIFORNIA,

Petitioner-Appeltlant,

Vs.

UNITED STATES OF AMERICA,

Respondent-Appellee.

a ee Se et ae ae at at See ee es

NO. 78-2434

JUDGMENT

This action came on for hearing

before the Court, Honorable Malcolm M.

Lucas, District Judge, presiding, and

the issues having been duly heard, and

a decision having been duly rendered,

United States District Judge for the

District of Oregon, sitting by designation.

23a

22a

IT IS ORDERED AND ADJUDGED THAT APPENDIX F

in accordance with the Court's Memo-

randum and Order, dated April 4, 1978

and the Memorandum of Decision, dated

July 5, 1978 that Petitioner's Applica-

tion for the Return of Property Seized (July 5, 1978)

Pursuant to Search Warrant be dismissed

on the merits with prejudice, that the

Petitioner take nothing, and that UNITED STATES DISTRICT COURT

Respondent, United States Of America, CENTRAL DISTRICT OF CALIFORNIA

recover of the Petitioner, Church of

Scientology of California, its costs of

action.

IT IS FURTHER ORDERED that the

Clerk shall serve, by United States mail,

a copy of this Judgement on counsel for

the parties in this matter.

Dated: July 5, 1978

OPINION of the

DISTRICT COURT

CHURCH OF SCIENTOLOGY

OF CALIFORNIA,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

NO. CV-77-2565-MML

Malcolm M. Lucas

MEMORANDUM OF DECISION

This Court conducted evidentiary

hearings during the trial week beginning

On Tuesday, June 6, and continuing through

Friday, June 9, 1978, on the remaining

issuest/ presented by Petitioner's appli-

24a

cation for the return of property seized

by F.B.I. agents.. Oral argument by coun-

sel on the questions presented was heard

On Monday, June 12, 1978, and at the

close of these hearings, the Court took

the questions presented under submission.

This Memorandum of Decision will resolve

those questions.

INTRODUCTION

This is an action, pursuant to Fed.

R.Crim.P. 4i(e),*’ by the Church of Scien-

tology of California for the return and

suppression of material seized from its

premises by F.B.I. agents.

On July 8, 1977, F.B.I. agents,

acting pursuant to two warrants,=’ con-

ducted simultaneous searches of two Los

Angeles premises of the Church of Scien-

tology of California and seized property

therefrom. The two Los Angeles premises

searched are known as the Fifield soa

and the Cedars-Sinai Sonniex. In the

course Of both Los Angeles searches, the

F.B.I. agents seized approximately 20,000

documents which are said to number approx-

imately 90,000 pages. In addition, the

F.B.I. agents seized several items of

property other than documents.

Contemporaneous with the Los Angeles

searches and seizures, F.B.I. agents

conducted a search of premises and sei-

zure Of documents from the Founding

Church of Scientology in Washington D.c,

The search and seizure in Washington D.c,

is the subject ot a separate action,

pursuant to Fed.R.Crim.P. 4l(e), in the

District of Columbia District court .2/

in re Search Warrant dated July 4, 1977

for Premises at 2125 S. Street, North-

west, Washington D.C,, (Misc. 77-0151).

The Los Angeles searches were con-

ducted pursuant to warrants issued by

Magistrate Penne. These warrants were

issued on the basis of the affidavit of

26a

F.B.I. Agent Robert Tittle, who in turn

relied upon information supplied by

Michael J, Meisner, who until late in

1976 was the National Secretary of the

Church. As related by Agent Tittle,

Meisner alleges that on three occasions

he and Gerald Bennett Wolfe, also a

member of the Church, entered the U.S,

Courthouse in the District of Columbia

an unlawfully entered the Offices of the

United States Attorney. Meisner and

Wolfe used false I.R.S. credentials to

gain initial entry into the U.S. court-

house, according to the affidavit, and

did so for the Purpose of stealing doc-

uments concerning the Church of Scien-

tology from the office of an Assistant

U.S. Attorney. According to the affida-

vit, these surrepititious entries into

the office of the u.s,. Attorney in Wash- :

ington D.C. were made to carry out offi-

cial programs of the church Of Scientology

which called for the infiltration of

government agencies and the elimination

27a

Of individuals considered by the Church

to be "enemies."

The origin, nature and implementa-

tion of these programs is described in

detail in the affidavit. Asa part of

these programs, Church members were

placed in government jobs with access to

sensitive documents and they then copied

documents for use by the Church.2/ The

offices of a number of government agen-

cies other than the U.S, Attorney's

office were illegally entered, and doc-

uments were subsequently copied. Thus,

set forth in detail in the affidavit is

a sizable conspiracy among Meisner,

Wolfe, and a number of other Church

Officials to steal government documents.

The affidavit also describes the

events following the apprehension of

Meisner and Wolfe in the U.S. Courthouse

in Washington D.C. various Church offi-

cials responded to this event by seeking

to fabricate exculpatory grand jury

testimony and to suborn perjury. Thus,

28a

the affidavit also describes in detail

a conspiracy to obstruct justice.

Almost immediately after this

action was commenced, the court Ordered

the Government to prepare a copy of the

seized documents and provide them to the

Petitioner so as to enable Petitioner to

prepare fully its application for the

return of the seized property. As the

Petitioner has a copy of the documents, 8/

the principal purpose of this action is

to determine whether the Government will

be free to use the documents in possible

future criminal proceedings.

ISSUES PREVIOUSLY CONSIDERED

Considerable confusion appears to

exist as to the precise issues presently

before the court, Accordingly, before

considering the issues properly brought

before the court, clarification is in

29a

Order. At the cost of some repetition,

another review of the procedural history

of this case is needed to distinguish

the issues proviously resolved by the

Court from issues presently before the

Prior to this Court's ruling upon

the issues presented by Petitioner's

application for the return of seized

property, District Judge Bryant of the

District of Columbia ruled that the

search warrant, which authorized the

search of the Washington D.C. premises

of the Church of Scientology, was a

"general warrant," and hence, constitu-

tional impermissable. In re Search

Warrant dated July 4, 1977 for Premises

at 2125 S, Street, Northwest, Washington

D.C., 436 F.Supp. 689 (D.D.C. 1977).

Judge Bryant based his decision upon a

finding that item 162 of the search

warrant's 162 items or categories of

things to be seized was so broad that it

failed the Fourth Amendment's requirement

30a

Of specifity. Id.

The collateral estoppel effect of

Judge Bryant's decision upon the issues

raised in this forum was then briefed

by the parties and orally argued. At

the close of a hearing on this question,

this Court ruled that the principle of

collateral estoppel precluded further

litigation between the parties concern-

ing the legality of the warrant in view

Of the identity of the parties and the

nearly identical warrants in question,

Accordingly, this Court found the Gov-

ernment was bound in this forum by

Judge Bryant's determination that the

warrant did not meet the requirements

Of the Pourth Amendment.

The Government appealed Judge

Bryant's decision to the Court of Appeals

of the District of Columbia. The court

Of Appeals reversed and held that the

warrant was facially proper. The court

found that:

3la

"the district court gave an over-

broad construction to the search

warrant, improperly interpreted

the revelant offenses, ignored

a significant part of item 162

and gave an unduly restrictive

interpretation to the Supreme

Court decision in Andresen v.

Maryland, supra."

In re Search Warrant dated July 4, 1977

for Premises at 2125 S, Street, North-

west, Washington D.Cc., F.2d _(D.c.cir.

December 1, 1977) at 4.

Based upon the Court of Appeals'

decision, the Government sought recon-

Sideration by this Court of its prior

ruling. Accordingly, this Court invited

the Court of Appeals for the Ninth Cir-

cuit to remand this case back to this

Court for reconsideration. Order from

Bench, December 21, 1977, see, e.qg.,

Canadian Ingersol-Rand Co. v. Peterson

Products of San Mateo, Inc., 35 F.2d

18 (9th Cir. 1965). The Court of Appeals

responded to this Court's invitation by

remanding this case back to this Court

32a 33a

"petitioner's challenge to the sei-

On March ° : Res OE

March 7, 1978 zure Of particular individual doc-

Upon remand of this case, this court uments during the execution of the

' two challenged Los Angeles search

ought

ee to expedite resolution of the warrants [will] be held during the

Petitioner's challenge to the legality week of May 15, 1978,"

Of the searches and seizures. To that

Stipulation, dated March 30, 1978.

On March 30 and March 31, 1978 the

Court conducted two days of evidentiary

end, On March 9, 1978, the court issued

an order directing the parties to file

status reports. After receipt of these

reports, the Court issued its “order hearings on all legal and factual issues

; iti ; 1 1

Setting Hearing on Rule 41(e) Motion", ee a eee, Se

which established March 30, 1978 as the motion aside from the reserved issue.

At those hearings, the Court considered

hearing date on Petitioners's Fed.R.Crim.

the following legal issues:

P, 41 (e) application. with respect to

(1) Are the warrants facially proper?

the issues to be considered, the court

pas (and the collateral estoppel affect

Of the decision by the Court of

At that time [March 30, 1978], the Appeals for the District of Columbia).

Court intends to consider all legal

and factual issues presented by

vega Fed.R.Crim. 41(e) contravene the First Amdnement?

motion."

(2) Did the issuance of the warrants

(3) Was there probable cause for

Order Setting Hearing on Rule 4l(e) the issuance of the warrants?

Motion at 1 (emphasis is Original). By (4) Were the warrants obtained in

stipulation between the parties, approved bad faith, and, if so, were they

7 i ?

by the Court, the parties agreed that: therfore improper?

34a

(5) Did the agents violate Section

3109, 18 U.S.c. §3109, in executing

the warrants?

(6) Did the F.B.I. agents violate

Fed.R.Crim.P. 41(d) in executing

the searches and seizures? and

(7) Did the agents executing the

warrants have in their possession

the affidavit upon which the

warrants were issued? And, if not,

did this make the searches illegal?

At that time, the Court considered the

Government's contention that, on the

authority of United States v. Calandra,

414 U.S. 338 (1973), it was entitled to

immediate use of the seized material

before a grand jury. These issues were

considered and decided by the court in

its Memorandum and Order, dated April

4, 1978.

The issue of whether the F.B.I.

agents who conducted the search seized

documents outside the scope of the war-

rants, which was reserved and continued

35a

by the Stipulation, supra, was ultimately

set for hearing on June 6, 1978. The

hearing date was set by an agreement

between the parties whict was placed

upon the record at a hearing on April 21,

1978. At the April 21, 1978 hearing,

the parties reaffirmed their agreement

that the only remaining issue to be

Presented to the Court in this matter

was whether the F.B.I. agents exceeded

the scope of the warrant. Reporter's

Transcript of Proceedings, April 21,

1978. Accordingly, the only issue which

appeared to be appropriate for consid-

eration at the June 6, 1978 hearing was

whether the agents exceeded the warrant.

The reserved issue, in turn, comprises

two distinct sub-issues: (a) did the

F.B.I. agents seize documents from areas

not covered by the warrants, and (b) were.

certain seized documents not within the

warrants’ specific descriptions of the

items to be seized?

Petitioner apparently decided for

36a

its Own reasons not to proceed upon

either of these two sub-issues. At the

evidentiary hearings conducted by this

Court during the week of June 6 through

June 9, Petitioner did not introduce any

Of the seized documents, or any Other

evidence, to prove either that documents

were seized from areas outside the areas

described in the warrant or that seized

documents were not included in the list

Of property to be seized. Instead,

Petitioner abandoned its prior conten-

tions and unveiled a completely new

theory. As discussed more fully below,

Petitioner's present contention is that

the F.B.I. agents improperly conducted

the searches and seizures because they

failed to minimize the intrusion. As

this theory was not presented in Peti-

tioner's lengthy Brief in Support of

Motion to Return and Suppress Because of

Illegality in Execution of Warrants

(herein "Brief in Support"), or in Peti-

tioner's Reply Brief in Support of Motion

37a

to Return and Suppress Property Because

Of Illegality in Execution of Warrants

(herein "Reply Brief"), the court gave

Petitioner leave to file and additional

trial brief setting forth its present

theory.

In addition to setting forth this

new theory that the F.B.I. agents failed

to minimize the intrusion, Petitioner's

Trial Brief, filed after four days of

evidentiary hearings, includes a "request

[for] a hearing to consider the legality

Of the seizure of each individual docu-

ment." Trial Brief, at 19 fn. 2. Peti-

tioner's request must, obviously, be

denied. As set forth above, the issue

Of the legality of the seizure of par-

ticular documents was originally set for

hearing as part of the March 30, 1978

hearing and was continued, by stipulation,

as an accommodation to the parties. At

a hearing on April 21, 1978, the matter

was set for hearing on June 6. However,

at the June 6 hearings, Petitioner elec-

38a

ted not to introduce any of the seized

documents and thereby to abandon its

contention that particular documents

were illegally seized. Petitioner has

been afforded numerous and ample oppor-

tunities to present its contention that

individual documents were illegally

10/

seized;— it will not be heard to raise

this abandoned issue once again. Accord-

ingly, its request for a hearing on this

issue is denied.

Although Petitioner's present ar-

gument concerning the manner of execution

was not specifically reserved in the

Parties' Stipulation, supra, and is,

therefore, arguably barred by this Court's

"Order Setting Hearing on the 4l1(e)

Motion," the Court will nonetheless con-

Sider Petitioner's contention that the

searches and seizures were conducted in

an overly intrusive manner. The court

will consider this new contention only

because it is related to Petitioner's

Prior contention that the searches and

39a

seizures were conducted in an exploratory

manner. Absent this relation, it is

clear that the Government would be un-

fairly prejudiced by consideration of

this issue.2)/

Finally, before considering Peti-

tioner's present contentions, the Court

notes that numerous issues previously

considered by the Court at the March 30

March 31 hearings, and determined in the

Court's Memorandum and Order, are raised

again in Petitioner's Brief in Support

re Fy

and in Petitioner's Reply Brief.— fhe

arguments addressed to these previously

considered issues have been reconsidered,

but the Court is not persuaded to modify

its prior rulings embodied in its Memo-

randum and Order.

With this review in mind, the Court

can turn to Petitioner's present conten-

tions.

40a

Iit

PETITIONER'S ARGUMENT

As set forth in its Trial Brief

and its final oral argument, Petitioner

challenges the execution of the warrants

On the ground that F.B.I. agents who

conducted the searches and seizures in

question read and seized sensitive doc-

uments of the Church of Scientology in

an improper and needlessly obtrusive

manner. According to Petitioner, in

executing the warrants, the F.B.I. agents

should have sought to locate certain

particular files of Church and then con-

fined their search to these files. In-

stead, says Petitioner, the agents at-

tempted and to a large extent succeeded

in searching all files, desks and closets

where documents were stored. Petitioner

argues that based upon information sup-

plied by informant Michael Meisner, the

agents could have confined their searches

narrowly. Instead, says Petitioner, the

4la

agents rummaged through and examined as

many documents as time permitted. Peti-

tioner agrues that under the circumstan-

ces of searches of property belonging to

13/

a church,— and documents said to be

presumptively protected by the First

Amendment, the searches were impermis-

sably broad.

Petitioner argues that executing

the warrants the F.B.I. agents trans-

formed specific warrants into general

warrants. Thus, according to Petitioner,

the original ruling by Judge Bryant that

the warrant was on its face a "general

warrant" was a correct depiction of the

manner in which the agents actually

executed the warrant. Moreover, Peti-

tioner argues that although the affidavit

and warrant may be specific on its face,

as found by the Court of Appeals, the

execution of the search and seizure was

not in accordance with the warrant and

affidavit.

Specifically, Petitioner contends

42a

that in carrying out the searches, the

F.B.I. agents should have first searched

Out the files referred to by the Church

as the "program", "operation" and "gov-

ernment special bank" files for the doc-

uments listed in the warrant. Only after

the agents had scrutinized these files

should the agents have searched the "main

files." Thus, according to Petitioner,

based upon the information supplied by

the informant Meisner, the F.B.I. agents

could have, and should have, minimized

the intrusion. Instead, says Petitioner,

the agents rummaged everywhere. Thus,

according to Petitioner, the searches

and seizures were "unreasonable," and

therefore violated the Fourth Amendment,

FOURTH AMENDMENT ANALYSIS

In Coolidge v. New Hampshire, 403

U.S. 443 (1971), the Supreme court sum-

marized the two distinct purposes served

by the requirment of a warrant for a

43a

search and seizure. There the Court

said:

"First, the magistrate's scrutiny

is intended to eliminate altogether

searches not based on probable

cause. The premise here is that

any intrusion in the way of search

or seizure is an evil, so that no

intrusion at all is justified with-

out a careful prior determination

of necessity. . . . The second,

distinct objective is that those

searches deemed necessary should

be as limited as possible. Here,

the specific evil is the ‘general

warrant' abhorred by the colonists,

and the problem is not that of

intrusion per se, but of a general,

exploratory rummaging in a person's

belongings. See, e.g., Boyd v.

United States, 116 U.S., at 624-

630, 6 S.Ct., at 528-532; Marron v.

United States, 275 U.S. 192, 195-

196, 48 S.ct. 74, 75-76, 72 L.Ed.

231; Stanford v. Texas, 379 U.S.

476, 85 S.Ct. 506, 13 L. EG. 2a 431."

Coolidge v. New Hampshire, 403 U.S. 443,

467 (1971), quoted with approval, Andre-

sen _v. Maryland, U.S.__, 96 S.Ct. 2745,

2748 (1976). Thus, in Coolidge, the

Court reiterated the concern that a

44a

search and seizure be conducted so as to

minimize the intrusion. The Court then

proceeded to explain:

"The warrant accomplishes this

second objective [of minimizing

the intrusion] by requiring a

‘particular description' of the

things to be seized."

Coolidge v. New Hampshire, supra, 403

U.S. at 746. In addition to requiring a

“particular description" of the things

to be seized, the Warrant Clause of the

Fourth Amendment requires the warrant

“particularly [to] describ[e] the place

to be searched." U.S. Constitution,

Amend IV. Thus, as recognized by the

Court in Coolidge, the Warrant Clause

insures that the intrusion caused by a

search is minimized by requiring a par-

ticularized description of the things to

be seized and the places to be searched.

With these familiar tenets of Fourth

Amendment jurisprudence in mind, atten-

tion may be turned to the Petitioner's

lowe

45a

argument that the searches were not

executed in the least intrusive manner

possibile.

Both of the warrants here in

question included an identical eight

page list of 162 different specific

items to be seized. In addition, each

of the warrants here in question inclu-

ded a specific description of the places

to be searched. The warrant for the

Fifield Manor search had the following

description of the place to be searched:

"Pifield Manor, 5930 West Franklin

Avenue, Hollywood, California, more

particularly on so much of the

premises below as consists of the

suite of offices of Mr. Hemming

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. ... "

The warrant for the search at Cedar-

Sinai included the following description:

46a

“Cedar-Sinai Complex, 4833 Fountain

Avenue, Hollywood, California, and

more particularly on the first floor

area housing the offices Occupied

by the Deputy Guardian for Informa-

tion and his staff and Personnel,

in the premises described below. . *

Petitioner's contention that an explora-

tory search ocurred puts in issue whether

the F.B.I. agents who executed the war-

rant searched in places other than those

designated in the warrants,

The consistent and uncontradicted

testimony of the F.B.I. agents who

searched at Fifield Manor showed that the

agents did not search or seize any pro-

perty outside the areas set forth in the

Fifield warrant. As directed by the

warrant, the agents confined their search-

€s to the warrant's description of the

places to be searched, the suite of

offices occupied by Henning Heldt. Ppeti-

tioner has not come forward with any

evidence to support its contention that

executing the warrant at the Fifield

47a

Manor, the agents searched or seized

property outside of Heldt's suite of

offices,

Petitioner's assertion that the

F.B.I. agents also searched an area

designated by it as the "Con-comm" room

does not show that the agents searched

Outside the warrant's description of

the place to be searched. There is no

evidence in the record to show that the

room designated as "COn-Comm" was not a

part of the suite of offices occupied

by Henning Heldt. In fact, the testimony

Of F.B.I. agents who searched at Fifield

strongly suggests that the area designa-

ted by the Petitioner as the "Con-comm"

room was in fact part of Henning Heldt's

suite of offices. The Court's own re-

view Of a map supplied by Petitioner of

the sixth floor of the Fifield Manor

building strongly supports the view that

the room designated by Petitioner as the

"“Con-Comm" room is in fact part of the

Suite of offices of Henning Heldt. Peti-

48a

tioner also suggests that the F.B.I.

agents also searched and seized documents

from a telex room on the sixth floor.

Again, there is no evidence that the

telex room, which adjoins Heldt's office,

is not within Heldt's suite of offices.

Moreover, no evidence whatsoever has been

presented to show that documents were

taken from the telex room.

The evidence concerning execution

Of the warrants at the Cedars-Sinai

Complex likewise shows that, nearly with-

Out exception, the F.B.I. agents properly

limited their search to the warrant's

description of places to be searched.

The testimony of agents who searched at

Cedars showed that the search and seizure

was limited to the place to be searched,

"the first floor area housing the offices

Occupied by the Deputy Guardian for In-

formation and his staff and personnel..."

Various agents testified that they

entered the Cedars-Sinai Complex at

approximately 6:00 A.M. and conducted a

49a

preliminary review of the premises and

sought entry into locked rooms on the

first floor. At that time the agents

did not know the exact location of the

area housing the offices of the Deputy

Guardian for Information. Based upon the

affidavit and briefing, see infra, the

agents knew, however, that this complex

Of offices could be identified by the

fact that it contained a group of 250

file cabinets. Accordingly, after se-

curing the premises, the agents sought

to locate these offices by finding the

area housing this group of 250 file cabi-

nets. The agents' efforts to locate the

offices of the Deputy Guardian were ham-

pered by the fact that a substantial

group of offices on the first floor,

which later were revealed to be the of-

fices of the Deputy Guardian, were not

identified and were locked. Requests

that both the outer and the inner locked

doors to these offices be opened were

never met, and the agents waited for

50a

approximately two hours before gaining

access to this complex of offices for-

cibiy.” Prior to gaining entrance,

the agents entered a room designated by

Petitioner as the "Action" room and

another room directly across from the

area which was later revealed to be the

Deputy Guardian's complex. Based upon

the presence of extensive file cabinets,

the agents believed that these two rooms

might well have been the offices they

were seeking and they commenced a search

in these rooms.

The testimony of Agent Noyes to the

effect that upon entry into the building

a preliminary search team walked through

various floors of the building does not

show, as Petitioner contends, that the

agents conducted an exploratory search

throughout the premises. It shows, at

most, that a small group of agents rea-

sonably and properly sought to secure the

premises so as to assure their saftey and

sO as to prevent the destruction of evi-

5la

dence. There is no evidence whatsoever

that during this initial review of the

premises, the preliminary search team, or

any Other agents, examined any documents

Or seized anything. This initial exam-

amination of the premises, if in fact a

search, cannot by any stretch of the

imagination be characterized as an ex-

ploratory search or a general rummaging.

In addition to challenging the

initial review of the premises, Petitioner

asserts that the record shows that F.B.I.

agents searched two offices on the ground

floor not within the warrant's designa-

tion of the place to be searched. The

two offices said to be outside the place

to be searched, the complex of offices

of the Deputy Guardian for Information,

were both on the first floor and proximate

to the place to be searched. One of

these two offices, described as the

"Action" office, was at the end of the

first floor corridor which leads away

from the entrance. The other office was

52a

located directly across the complex of

offices of the Deputy Guardian for

Information,

Although the agents may have search-

ed in an area outside the warrant's de-

scription of the place to be searched,

this does not invalidate the search and

and seizure at Cedars-Sinai Complex,

The agents' conduct in searching areas

arguably outside those designated in the

warrant was, under the circumstances,

reasonable. At the outset of the search,

agents properly sought to locate the

place to be searched. Believing that

the proper place to be searched had been

located, the agents, acting reasonably

and in good faith, searched two rooms

which were both on the first floor and

extremely proximate to what was later

revealed to be the Offices of the Deputy

Guardian. The search and seizure of

property in these two rooms does not

Prove an exploratory rummaging or a

general search. In the context of a

53a

search of a multi floored building with

hundreds of rooms, the agents' apparently

inadvertant entry and initial search of

these two rooms does not invalidate the

entire search and seizure of the Cedars-

Sinai Complex.

It is unclear from the testimony

presented whether the F.B.I. agents con-

tinued their search of either of these

two rooms after the discovery of the

primary location of the complex of of-

fices occupied by the Deputy Guardian

for Information. The record can be

read to suggest that the agents did

continue the search of the "Action" room

after discovery of the Guardian's complex

of offices and that this room is not

within the place designated in the war-

rant to be searched. Also implicit in

the record is the suggestion that the

search continued because, during the

initial search, the agents discovered

items included in the warrant's list of

property to be seized or other evidence

54a

Of crimes. On this record, it is not

Clear if the "Action" room was within

“first floor area housing the offices

Occupied by the Deputy Guardian for

Information and his staff and Personnel,"

Search Warrant. Further, assuming that

the "Action" office was not within the

complex of offices of the Deputy Guardian

for Information and his staff and person-

nel, it is not possible to ascertain when

and if the agents learned this. The

agents might reasonably have concluded

that the "Action" room was part of the

Offices of the staff or personnel of the

Deputy Guardian for Information or an

adjunct thereto, in light of the fact

that the main complex of offices of the

Deputy Guardian for Information did not

contain the full 250 files mentioned in

the affidavit of Agent Tittle. This

evidence, even when viewed in light most

favorable to Petitioner, simply does not

establish that the F.B.I. agents con-

ducted an exploratory search,

55a

Assuming that the search and seiz-

ure in these two rooms did continue after

the Deputy Guardian's office was discov-

ered, and further assuming that the

continued search was illegal, the proper

remedy is only suppression of the doc-

uments and other materials seized there-

in. See, e.g., United States v. Daniels,

S21 F. 2d 665 (9th Cir. 1977). Thus,

even if the continued search of this

room was illegal, Petitioner would be

entitled only to the return of the

documents seized therein.=” However,

inasmuch as Petitioner has not brought

forward any evidence of whether any

documents seized were taken before or

after the place to be searched had been

located, the Court need not, and will

not, resOlve the question whether doc-

uments seized from the "Action" room

must be suppressed.

Having considered the question of

whether the agents exceeded the warrant

by searching and seizing outside the

56a

areas designated by the warrant, the

Court must now examine the manner of the

execution of the warrant.

The testimony of the agents reveal-

ed that on July 7, 1977, the day before

the searches, the F.B.I. agents were

briefed for a full day on all subjects

touching on their execution of the war-

rants. During the morning, the agents

were briefed by the two Assistant U.S.

Attorneys heading this investigation

about the nature of the investigation,

the religious nature of the places to

be seerched, and the search warrants

which they were to execute. Thereafter,

each of the agents received a copy of

the affidavit and warrant, and were given

a period of time to read and study it.

The briefing recommenced thereafter and

at this time, the agents' questions con-

cerning the warrant and investigation

were answered. Thereafter, the agents

were divided into two groups and briefed

separately about the searches and seiz-

57a

ures at the Fifield Manor and at the

Cedars-Sinai Complex. Still later, the

agents were further sub-divided into

small search teams and further instruc-

tions were given concerning the execution

of the warrants. A number of agents

testified that they took their copies of

the affidavit and warrant home and

studied them further in preparation for

the next day's search.

At both the Fifield Manor and the

Cedars-Sinai Complex premises, the agents

had readily available legal guidance and

direction in the execution of the war-

rants. At the Cedars-Sinai Complex, one

of the Assistant U.S. Attorneys in charge

of the ongoing investigation accompanied

the agents so as to provide readily av-

ailable legal advice concerning the

execution of the warrant. In addition,

an F.B.I. Agent who is also an attorney

at law was also present to assist the

searching agents and to answer their

questions. At Fifield Manor, the other

Assistant U.S, Attorney handling the

investigation was present, as was another

F.B.I. Agent who is also an attorney at

law. As noted, agents were instructed

at the briefings that the places to be

searched were premises of a Church, that

the utmost in professionalism was requir-

ed, and that they should avoid entry in-

to and searching of particular religious

rooms such as chapels. These instruc-

tions were carried out scrupulously.

The testimony also revealed that the

agents had the warrant and affidavit

with them as they conducted the sei-

zure 2 8/

In its Trial Brief and oral agru-

ment, Petitioner placed its nearly com-

plete reliance upon the contention that

the F.B.I. agents executed the search

in a needlessly obtrusive and constitu-

tionally impermissably manner because

the agents did not initially examine the

"program," "operation", and "government

special bank" files before proceeding to

59a

examine the "main files." This argument

is, quite simply, untenable.

Even were the Court to accept Pet-

itioner's contention that there is an

additional requirement that agents con-

duct a search in the most limited manner

that hindsight can provide, the facts

strongly undercut Petitioner's suggested

course Of search. Petitioner's theory

that the agents should have first search-

ed the "program", “operation", and "gov-

ernment special bank" files, and then

proceeded to examine the "main files"

Only if the enumerated items to be seized

had not been found, ignores the fact that

the items to be seized were documents

and that there were multiple copies of

many Of these documents allegedly dis-

tributed to several officers in the

Church. Thus, for example, even assuming

that the agents confined their initial

search to the "program" files and in the

"program" files found one of each of the

Particularly enumerated documents in the

60a

them to have searched those files. Thus,

under the circumstances, the main files

would, inevitably, have had been search-

ed.

Petitioner's proposed method of

conducting the search is beset by further

problems. Based upon the affidavit un-

derlying the warrant, there was reason

to believe that the items to be seized

would be found in the "main files" as

well as in the "program," "operations,"

and "government special bank" files,

Moreover, a seriatim examination of the

files, as suggested by Petitioner, would

have required substantially more time

than the procedure employed of simultan-

eous searches of the four sets of files.

Accordingly, Petitioner's proposal would

have made the searches more intrusive,

not less. Still further, it may well

have been impossible for the agents to

have identified the particular files that

they were searching so as to permit a

search in the manner suggested by Peti-

6la

warrant, the agents would still not have

known that all the copies of the docu-

ments to be seized had, in fact, been

seized.

Moreover, even if this problem

could somehow have been overcome, there

would still be the problem presented by

some of the items in the list of 162

items to be seized. A few of the 162

categories of items to be seized provide

for seizure not of particular documents,

but of categories of documents or other

evidence of certain crimes. Even if the

agents had searched the "program", "op-

eration" and "government special bank"

files first and checked off what had

been seized on the list of items to be

seized, the agents would still not have

been able to determine whether items to

be seized were still to be found in the

"main files." The only possible way

for the agents to have determined whether

the "main files" contained any of the

items to be seized would have been for

62a

tioner.

Petitioner has cited a number of

cases stemming from wiretap interceptions

Of telephone conversations in support of

its contention that the searches in this

case failed to "minimization" require-

ment. See, e.g., United States v.

Tortorello, 480 F.2d 764 (2d cir. 1973)

cert. denied 141 U.S. 866 (1973). The

statutory requirement that a wiretap "be

conducted in such a way as to minimize

the interception of communication not

Otherwise subject to interceptions[s].

- « " requires that under all of the

circumstances the interceptions were

reasonable. Scott v. United States,

U.S.__, 98 S.Ct. 1717 (1978). Assuming

arguendo that the statutory requirement

Of minimization of wiretap interceptions

applies to the searches of the type here-

in, see, Andresen v. Maryland, supra,

96 S.Ct. at 2749, fn. ll, the conclusion

is inescapable that the searches were,

under the circumstances, conducted in a

63a

manner which minimized the intrusion.

In sum, the argument that the agents

failed to minimize the search by first

looking at the "program," “operation, "

and "government special bank" files,

does not withstand analysis.

Finally, Petitioner's contention

that the agents read through hundreds

of thousands of pages presumptively

protected by the First Amendment, and

perhaps by the evidentiary privileges

of priest-penitent and attorney-client,

hardly merits serious contention. Ini-

tially, petitioner did not introduce the

documents or any other evidence whatso-

ever to support the claim that the doc-

uments siezed or examined contained

privileged communications. Moreover,

Petitioner has still not come forward

with any factual demonstration of the

interests embodied in the documents

which are said to be protected by the

First Amendment. Puttiig aside these

deficiencies, Petitioner's contention

64a

comes aground upon very recent authority.

In Zurcher v. The Standford Daily,

U.S. »May 31, 1978, the Supreme Court

declined to impose an additional re-

quirement upon a search either because

it was directed at a third party or

because it was directed to an institution

Protected by the First Amendment. Be-

cause Of Justice Stweart's dissent, the

Court was well-aware that a search for

documents and papers always carries with

it the danger of an examination of nu-

merous documents which are not subject

to seizure.

Thus, he wrote:

"The Court says that ‘if the re-

quirements of specificity and

reasonableness are properly applied,

policed, and observed' there will

be no Opportunity for the police to

‘rummage at large in newspaper

files.’ Ante, at 17. put in Order

to find a particular document, no

matter how specifically it is iden-

tified in the warramt, the police

will have to search every place

where it might be -- including, pre-

sumably, every file in the office --

65a

and to examine each document they

find to see if it is the correct

One. I thus fail to see how the

Fourth Amendment would provide an

effective limit to these searches."

Under Zurcher, and examination of numer-

Ous documents other than those to be

seized does not invalidate the warrant.

See also, Andresen v. Maryland, _U.S.__,

96 S.Ct. 2737 (1976) (search of numerous

documents subject to attorney-client

privilege to locate incriminating doc-

uments is constitutionally permissable).

Lastly, based upon all of the evi-

dence presented to the Court, the Court

finds that the searches and seizures at

Fifield Manor and Cedars-Sinai Complex,

even though directed at a church, were

reasonable and properly limited under

the circumstances. Petitioner has com-

pletely failed to demonstrate that the

searches and seizures in question were

improper in any way.

Having considered Petitioner's

arguments in plenary fashions, and having

66a

concluded that Petitioner is not entitled

to any relief by this action, the Court

hereby dismieses with Prejudice Petition-

er's Application for the Return of Pro-

Perty. Further, restrictions imposed by

prior orders of court upon the use by

the Government of property seized are

hereby vacated. 22/ Still further, the

Court hereby grants judgment in favor

Of the Respondent.

Petitioner has sought numerous stays

Of the Court's Memorandum and Order,

dated April 4, 1978 ,28/ Immediately after

the Opinion was issued, this court gran-

ted Petitioner a twenty-four hour stay

Of that Memorandum and Order to permit

Petitioner to seek immediate review.

Thereafter, the Court of Appeals for

the Ninth Circuit, upon review of the

Court's Memorandum and Order, denied a

motion by Petitioner for a further stay.

Further motions for stays were repeatedly

made by Petitioner in this matter, and

have been rejected by this court. Ac-

67a

cordingly, the Court has considered in

advance of the issuance of this Memo-

randum of Decision the question of wheth-

er its mandate should be stayed. Although

granting a stay will occasion still a

further delay of pending grand jury pro-

ceedings which have been stalled by this

proceedings for a full year, see also,

United States v. Calandra, 414 U.S. 388

(1973), nonetheless, upon careful con-

sideration, the Court has determined that

a twenty-four hour stay would be appro-

priate under the circumstances to permit

Petitioner to seek appellate review.

This stay is, of course, granted upon

the same condition as was the April 4,

1978 stay; namely, Petitioner agrees that

it will notify Respondent so that Respon-

dent may be present at any proceedings

before the Court of Appeals for the

Ninth Circuit.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk

shall serve, by United States mail, a

68a 69a

copy of this Memorandum of Decision, on | FOOTNOTES

counsel for the parties of this matter. 1/

Dated: July 5, 1978 ~ As discussed more fully in Section II

of this Memorandum of Decision, infra,

numerous issues presented by Petition-

Malcolm M, Lucas er's Fed.R.Crim.P. 4l(e) application

United States District Judge were previously considered and resol-

ved by this Court in its Memorandum

and Order, dated April 4, 1978. As

the present Memorandum of Decision can

best be understood in conjunction with

the April 4, 1978 Memorandum and Order,

a copy of that opinion is attached

hereto as an appendix.

2/ . eae

— Rule 4l(e) actions must be dismissed

unless the moving party makes a show-

ing that irreparable injury will re-

sult unless granted the relief re-

quested. Hunsucker v. Phinney, 497

F.2d 29, 34 (5th Cir. 1974), cert.

denied 420 U.S. 927 (1975) cited with

approval in G,M, Leasing Corp. v.

United States, _U.S.__,97 S.Ct. 619

70a

(1977). See also Order re F.B.I.

Internal Memoranda, dated September 9,

1977. The Court finds that the church

has made the requisite showing of irre-

parable injury in this case.

The warrants here in question are

numbered 77-1028M and 77-1029M.

The Fifield Manor, located at 5930

West Franklin Avenue, Hollywood,

California was formerly a hotel, and

is presently used by the Church as

both a business office and as living

quarters,

The Cedars-Sinai Complex, located at

4833 Fountain Avenue, Los Angeles,

California, was formerly used as a

hospital and occupies approximately

a city block.

The propriety of the search in the

District of Columbia is, of course,

7la

not before this Court.

These assertions are, of course, based

only upon F.B.I. Agent Tittle's affi-

davit. For reasons of style, the

phrase "according to the affidavit"

has been omitted in some places.

Subsequent to issuance by the Court of

it Memorandum and Order, dated April

4, 1978, Petitioner sought another

copy of the seized document based on

the contention that the first set

provided by the Government had been

destroyed by church officials. Al-

though there appeared no lawful justi-

fication for the alleged destruction,

the Court ordered the Government

to provide the Petitioner with another

copy of th. documents to expedite

these proc. *dings.

™ For a detailed description of the

procedural history of this case, see

72a

the Court's Memorandum and Order,

dated April 4, 1978. See also,

Order Re F.B.I. Internal Memoranda,

dated September 9, 1977.

On Monday, June 5, 1978, Petitioner

sought a continuance of the heargins

scheduled to commence the next day

the ground that it had not had suf-

ficient time to review the documents.

As Petitioner had not demonstrated

valid grounds for the continuance,

the Court denied the Application.

In part, the Application for con-

tinuance was denied upon the fact

that Petitioner represented that it

had spent, 3530 hours reviewing the

documents -- strongly countervailing

the assertion that it had not had a

sufficient opportunity to review the

documents. When the hearings com-

menced the next morning, Petitioner's

counsel brought approximately 25

notebooks of documents, said to be

73a

arragned according to seizing agent

and in various other categories.

After some time was spent during the

morning of Wednesday, June 7, 1978,

in and effort to mark these note-

books for identification, Transcrpit

Of Proceedings, at 222-5, these

documents were never introduced. Ac-

cordingly, Petitioner's conduct un-

dercuts its assertion that it was

unable to review its documents which

the Government seized from it.

Petitioner has had approximately

eleven counsel of record in these

proceedings. Regretably, during the

last two months, this action had been

marked by a number of stipulations

unfulfilled by Petitioner's counsel.

Petitioner's trial counsel sought to

justify these defalcations by re-

course to the number of, and changes

in, Petitioner's counsel of record

in this action. A party is, of

12/

74a

course, bound by stipulations entered

into by its counsel of record, past

and present.

In its Brief in Support and Reply

Brief, Petitioner repeatedly makes

twp assertions which merit discussion.

First, Petitioner characterizes this

Court's Memorandum and Order, dated

April 4, 1978, as adopting a "forma-

listic approach," which is said to be

inconsistent with the Supreme court's

recent decision in Zurcher v. The

Stanford Daily, _U.S.__ _ (Slip Opinion

May 31, 1978). Petitioner's conten-

tion is a serious distortion of the

Court's analysis and a misreading of

Zurcher.

In the Memorandum and Order, the

First Amendment issues presented were

whether the warrants were illegal

based solely upon the First Amendment,

Or whether the First Amendment requir-

ed a pre-seizure adversary hearing or

75a

post-seizure institution by the Gov-

ernment of adversary proceedings.

See, @.g., Marcus v. Search Warrants

Of Property, etc., 367 U.S. 717

(1961); Quantity of copies of Books v.

Kansas, 378 U.S. 205 (1964). In that

Opinion, the Court noted that Peti-

tioner had failed to make clear what

First Amendment interests were im-

plicated, and the Court then distin-

guished the situation here presented

from those cases involving a search

and seizure based upon the ideas con-

tained or expressed in the seized

materials. Memorandum and Order at

5-9. Zurcher, supra, upon which

Petitioner places its greatest reli-

ance, does not support its contention

that a pre-seizure or post-seizure

adversary hearing was required under

the circumstances of this case. To

the contrary, Zurcher reinforces this

Court's conclusion and stands for the

proposition that rigid adherence to

76a

the requirements of the Fourth Amend-

mend adequately safeguards the First

Amendment interests implicated by

searches and seizures directed at

institutions presumptively protected

by the First Amendment interests

implicated by searches and seizures

directed at institutions presumptively

protected by the First Amendment,

Secondly, Petitioner continuously

asserts that it has been deprived of

discovery in these proceedings. On

April 5, 1978, this court heard

Respondent's Motion to Quash Subpoenas

and for a Protective Order. at the

close of that hearing, the Court

granted Respondent's Motion to Quash

the Subpoenas and for a Protective

Order. At least four different

reasons existed for that conclusion,

including: (1) absence of any author-

ity for permitting discovery ina

Fed.R.Crim.P. 41l(e) proceeding; (2)

the collateral estoppel effect of

77a

Orders from the District Court for

the District of Columbia quashing

subpoenas and granting protective

Orders; (3) the Court's conclusion

that the particular subpoenas in

question were issued to harrass;

and (4) the percieved interference

of discovery with proceedings before

a grand jury which was set to expire

On April 12, 1978; see United States

v. Calandra,414 U.S. 338 (1973). At

any rate, the conclusion of the hear-

ing, the Court stated:

"The petitioner may at a later

date file a motion including the

appropriate citations to take

discovery in this Rule 4l(e)

proceeding."

Reporter's Transcript of Proceedings,

April 5, 1978.

As Petitioner has never filed the

motion which the Court invited, it

will not be heard to assert that it

has been improperly denied discovery

in these proceedings.

13/

14/

15/

78a

That the Petitioner, the "Church of

Scientology of California," is a

Church has never been questioned by

the Government in these proceedings

and is accepted by the court.

The evidence presented at these hear-

ings strongly reinforces the court's

prior determination that the F.B.I.

agents did not violated Section 3109

in executing the searches. Memoran-

dum_and Order, dated April 4, 1978,

The Court's conclusion not to deter-

mine whether to suppress any docu-

ments seized from the two rooms said

to be outside the warrant's descrip-

tion of the place to be searched is

buttressed by the fact that the

GOvernment has indicated its intention,

at the hearing on April 21, 1978 to

return a number of unneeded seized

documents to Petitioner. Accordingly,

16/

79a

a determination of whether particular

documents were illegally seized from

these two rooms, if any, may never

be required because these documents

may well be among the documents to be

returned. Petitioner agreed at that

April 21 hearing that only those non-

return documents would be properly

the subject of the hearing, but de-

termined not to proceed by presenting

particular non-return documents said

to be illegally seized. The Gov-

vernment has, of course, noted that

by returning some of the documents

it is not conceding that these doc-

uments were illegally seized.

This evidence reinforces the Court's

prior conclusion concerning the pre-

sence of the affidavit at the search

premises. Memorandum and Order,

dated April 4, 1978, at 19-20. There,

the Court found that the agents who

conducted the search did have the

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80a

affidavit accompanying the warrant

with them at the time of the search.

The Court will not, of course, review

sets of documents previously sub-

mitted by Respondent for review prior

to presentation to the grand jury

which have not as yet been reviewed.