# Petition — Church of Scientology of California v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1014%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 444 U.S. 1043 ## Text 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 Neen a ss aetnakcsncheteinuninasenscscsseus A EO Sa Neen is cinecenccenesnnannivespitcnnvest Eeeeeen Om Beales ANVOIVOG .................................cccecscesss i. enpeivtendrenemrnsenwowsinss Reasons for Granting the Writ -.........02..20.20..2..--e Dc ceupadecminnaninscnmscpssneonace 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 Cee i siscactencacssuscnnsseunsanssacneen 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) 13 la 14la ll 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 RE 5 GES RL & & RecheeleAMemneneoMmrsh Uh. ticoeRe SI MAAN Nees AP 2 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. bo 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. 3 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 4 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). 4) 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 6 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 8 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 9 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). 10 § 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 11 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). 12 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, 13 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 14 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 2a 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. 3a 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 4a 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 5a 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 6a 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). 7a 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 8a 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 9a 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, Ve 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. II 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 ee 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 9/ 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, IV 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 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. 7/ 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. 9/ ™ 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 18/ 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. See also, fn. 18. The Court's April 4, 1978 «Memorandum and Order permitted the Government to use, before the grand jury, doc- uments which were seized pursuant to items 1-161 in the warrant's designa- tion of property to be seized. pPeti- tioner's motion to the Court of Ap- peals for the Ninth Circuit for a stay of this Court's Memorandum and Order was denied upon the condition that none of the documents be pre- sented to the grand jury until they were first presented to this Court to assure that the documents were with- 8la in this Court's Memorandum and Order. Order, dated April 6, 1978, court of Appeals for the Ninth Circuit. In accordance with the Order by the the Court of Appeals for the Ninth Circuit, this Court has conducted an in camera review of documents to be submitted to the grand jury. The documents submitted by Respondent, as well as the Court's orders respect- ing these documents, were placed under protective seal. Petitioner has repeatedly cha- llenged the Court's in camera review Of documents, asserting, inter-alia, that the procedure employed interfered with its preparation of these Rule 4l(e) proceedings and otherwise prejudiced it. Petitioner's conten- tion is altogether specious. peti- tioner has no right to know what evidence is to be presented to the grand jury; there is no pre-indictment discovery. See also, United States v. 83a 82a submitted by Respondent under seal, Calandra, 414 U.S. 338 (1973). More- and thereby, to take advantage of over, this information is completely an error in the Clerk's office. Such irrelevant to whether the searches : ; conduct is inexcusable. Moreover, and seizures were legal, and if not, ; ; Petitioner's assertion that improper whether the material seized should documents were being submitted to the be returned to Petitioner. Fed.R. grand jury ignores the fact that this Crim.P. 4l(e). : te) Court examined the documents sub- Petitioner's depiction of the pro- : mitted and ruled, in Orders placed under seal, that some of the docu- ments submitted did not in fact cedure as “ex parte" and its con- tention that some of the documents submitted to the grand jury were ; , correspond, and could not therefore not proper is equally specious. In be used before the grand jury at the first place, the documents were ; that time. simply submitted to the court with- out either party being present or participating in the in camera re- view. The assertion that documents not within the purview of this Court's April 4, 1978 Order were being sub- mitted to the grand jury is particu- larly vexing. First, to be in a position to make this assertion, Petitioner's counsel had to ignore Court orders placing the documents 84a APPENDIX F OPINION of the DISTRICT COURT (April 4, 1978) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CHURCH OF SCIENTOLOGY OF CALIFORNIA, Petitioner, Ve UNITED STATES OF AMERICA, Respondent. NO. CV-77-2565-MML MEMORANDUM AND ORDER The Church of Scientology of Cali- fornia has brought this action, pursuant to Fed.R.Crim.P. 41(e) ” for the return of numerous documents seized by F.B.I. agents on July 8, 1977 from Church pre- ee eee ee we 85a mises located in Los Angeles and des- cribed by the parties as the Cedars- Sinai Complex and the Fifield a Simultaneously, another search of Church property and seizure of documents occurred in Washington D.C. The search of Washington D.C. premises is the sub- ject of a separate Fed.R.Crim.P. 41(e) proceeding before Judge Bryant of the state * sain Court for the District of Colum- bia. In _ re Search Warrant Dated July 4, 1977 for Premises at 2125 S Street, North- west, Washington D, C,, Misc. 77-0151. The searches and seizures at both Los Angeles sicetdigna” aks were execu- ted by F.B.I. agents acting pursuant to a warrant which had been approved by U.S. Magistrate Penne, are challenged by pe- titioner on numerous grounds which are reviewed seriatum below. A. PROCEDURAL HISTORY ew! | A short revie of the tangled his- tory of this case is in order. Prior to the hearing on the’merits in this forum, 86a Judge Bryant of the District of Columbia held, in a Memorandum and Order dated July 27, 1977, that the search warrant in question was a "general warrant," and hence constitutionally infirm. Accord- ingly, this Court raised the issue of the collateral estoppel effect of Judge Bryant's ruling of the issues presented in this forum, and held a hearing on August 8, 1977 to consider this question, At the close of the hearing, this Court concluded that the principle of collater- al estoppel precluded further litigation concerning the legality of the warrant in view of the identity of the parties to both proceedings and the nearly identical Warrants in both seizures. On August 8, 1977, this Court issued an Order, modeled upon the Order of Judge Bryant of the District of Columbia, which required the return of the seized property.to the Church, The Court's Order of August 8, 1977, although patterned after that of Judge Bryant, was the subject of a number of 87a disputes between the parties which they aired, and in part, resolved at hearings held on August 12, August 18, and August 29, 1977. The resolutions of all but one of these disputes was embodied in a written stipulation, in the form of an Order, which was approved by the Court on August 24, 1977. The remaining issue, the use by the F.B.I. of certain internal F.B.I. memoranda containing information garnered from the documents held to have been seized illegally, was resolved, af- ter a full hearing and receipt of written memoranda, by an Order issued by the Court on September 9, 1977. The Orders of August 8, August 24 and September 9, 1977 were the subject of a Final Judg- ment, issued on September 12, 1977 from which an appeal was taken to the Court of Appeals for the Ninth Circuit. On December 1, 1977, the Court of Appeals for the District of Columbia re- versed the decision of Judge Bryant and remanded the case to the district court for further proceedings in accordance 88a with the Court's directive. Immediately after the Court of Appeals for the Dis- trict of Columbia Circuit issued its ruling, the Church sought and obtained a Stay. The Church sought further review of Judge Bryant's decision, either by way of en banc consideration by the Court of Appeals, or hearing by the Supreme Court. Both courts subsequently rejected further appellate review of Judge Bryant's decision. At this junc- ture all further appellate proceedings have been exhausted and the Court of Appeals for the District of Columbia has issued its final mandate to the district court. Upon the reversal of Judge Bryant's decision by the Court of Appeals for the District of Columbia Circuit, this Court invited the Court of Appeals for the Ninth Circuit to remand this case for reconsideration. Order from Bench, De- cember 21, 1977; see, e.g., Canadian Ingersoll-Rand Co. v. Peterson Products of San Mateo, Inc., 350 F.2d 18 (9th Cir. 89a 1965). At that time, the Court, recog- nizing the possibility of further appel- late proceedings and consequent stays of of the mandate, indicated its intention to delay any reconsideration until the appellate process was completed. On March 7, 1978, the Court of Appeals for the Ninth Circuit responded to this Court's invitation by remanding this case to the Court, To facilitate further proceedings in this matter, the Court issued an Order on March 9, 1978 which directed the par- ties to file status reports concerning the posture of the litigation in this forum, the posture of related litigation in the federal courts in Washington, D.C., and appropriate scheduling of the remain- ing issues in this litigation. The status report filed by the Government indicated the need for an expedited hearing due to the presently set expiration date of April 12, 1978 for the grand jury which had been investigating the alleged vio- lations of the law. Concurrently, the 90a Supreme Court denied petitioner's appli- cation for a writ of certiorari and thereby culminated appellate proceedings. Accordingly, the Court set the matter for hearing on Thursday, March 30, 1978. At the hearing, the Court intended to con- Sider al] remaining legal and factual issues raised by petitioner's motion pur- Ssuant to Rule 4l(e). The parties sought, however, to continue the hearing on the issue of the alleged excessiveness of the search and its exploratory nature, because preparation of this issue would require extensive access and familiarity with the documents. Accordingly, the Court approved a Stipulation between the Parties which continued the Court's con- Sideration of this issue until a later date. L/ Accordingly, evidentiary hear- ings were held on Thursday and Friday, March 30 and 31, and at the close of the hearing, the Court took the questions presented under submission. This Memo- randum and Order will resolve the issues presented at these hearings. eee eee 9la B. ANALYSIS I. Collateral Estoppel Effect of the Decision Dy D. C. Circuit Court of Appeals The very same considerations which mandated the application of the principle of collateral estoppel to the decision of Judge Bryant apply to the decision of the Court of Appeals for the District of Columbia Circuit. Accordingly, this Court is bound by the decision of the Court of Appeals regarding the validity of the warrant. The Court must there- fore hold that warrant is not a “general warrant," and consequently, this challenge leveled by petitioner must be rejected. The Court would also indicate that, were it not bound by the principle of collateral estoppel, it would hold based upon an independent re- view of the content of the affidavit Supporting the search warrant and the warrant, that the warrant is facially proper on the authority of Andresen v. Maryland, U.S. » % 6. Ct. 2737 92a (1976). To the extent that the Court's Orders of August 8 and 24, 1977 are to the contrary, they are vacated by this Order. It. First Amendment Considerations Petitioner Challenges the facial validity of the warrant 8/ana the pro- cedure by which it was obtained on the ground that, even assuming that the warrant did not contravene the Fourth Amendment, it violated the First Amend- ment. Petitioner's First Amendment theory is, unfortunately, not precisely Clear. There would appear to be a sub- stantial ambiguity as to whether peti- tioner claims to be entitled to the pro- tection of the First Amendment because: (1) documents were seized, and hence free- dom of expression is allegedly implicated, Or (2) material was seized froma Church, and hence freedom Of religion is allegedly implicated. Assuming that the petitioner seeks the haven of the First Amendment under both theories, the Court 93a does not believe that the First Amend- ment requires invalidation of the search and seizure. (a) Seizure of Documents As early as 1921, the Supreme Court recognized that: "There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant." Gouled v. United States, 255 U.S. 298, 309 (1921) quoted in Andresen v. Maryland, Supra, 96 S. Ct. at 2745 (1976) (Emphasis added). Thereafter, in Warden v. Hayden, 387 U.S. 294 (1967), the Supreme Court put to rest the limitation of seizures to the fruits and instrumentalities of crime, as distinguished from "mere evi- dence." In abandoning the mere evidence rule which underlay the Gouled decision, the Court in Warden v. Hayden reserved 94a the question of "whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure. 387 U.S. at 302-3. The question of whether documents are of such a nature as to preclude them from being the object of a search and seizure, reserved in Warden v. Hayden, was specifically answered in Andresen v. Maryland, supra, where the Court held that the seizure of the private business records of an attorney did not violate either the Fourth or Fifth Amendment. The Court there noted that: "{A] contrary determination would prohibit the admission of evidence traditionally used in criminal cases and traditionally admissible despite the Fifth Amendment. For example, it would bar the admission of an accused's gambling records in a prosecution for gambling; a note given temporarily to a bank teller during a robbery and subsequently seized in the accused's automobile or home in a prosecution for bank robbery; and incriminating notes prepared, but not sent, by an accused in a kidnapping or black- 95a mail prosecution." Andresen v. State of Maryland, 96 S. Ct. at 2746-47 (1976). The same considerations would appear to apply to this case. Government docu- ments, and Church memoranda describing an alleged conspiracy to steal such docu- ments, would likewise appear to be pro- perly subject to a search irrespective of the fact that the seized material is documents. Petitioner has cited and the Court is aware of, no authority for the proposition that documents are entitled to immunity from seizure under the auspices of a proper warrant because of the First Amendment. The absence of such authority is not surprising in light of the text of the First Amendment, which reads: "Congress shall make no law respect- ing an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assemble, ... ." The First Amendment itself says nothing 96 about protecting documents per se; in- stead, the Amendment only relates to laws which impinge upon the exercise of free- dom of speech, religion, press or assem- bly. Petitioner places the greatest em- phasis upon the argument that, in the context of First Amendment values, a search warrant should be issued only after there is an adversary hearing. In Support of its position, petitioner cites Marcus v. Search Warrants of Property, etc., 367 U.S. 717 (1961); Quantity of Copies of Books’ v. Kansas, 378 U.S. 205 (1964); Heller v. New York, 413 U.S. 433 (1973); see also, Roaden v. Kentucky, 413 U.S. 496 (1976). These cases are, however, simply inapposite. Each of the cited cases presents the fundamentally different situation of a seizure of allegedly obscene books. The First Amendment is thus directly implicated, because the law under which the books are seized regulates their con- tent. The case before this Court pre- id thee ear Fe 97a sents a different situation. The laws under which the documents were seized do not purport to regulate in any way the content or the ideas expressed in the document -- the laws simply prohibit conspiracy, theft of government property, and obstruction of justice. Moreover, the imposition of a re- quirement of an adversary hearing prior to issuance of a warrant would be ludi- crous in the present context. Various church officials are alleged in the affi- davit to have stolen sensitive govern- ment documents. To insist upon an ad- versary hearing prior to seizure in this context would invite the possibility of the destruction of the evidence. Re- quiring such a procedure would be equi- valent to requiring an adversary hear- ing prior to the search and seizure of narcotics -- little evidence would be likely to survive such a procedure. In short, this is not a case where the constitutional reguirement that warrants must particularly describe the 98a “things to be seized" is to be accorded the most scrupulous exactitude [because] the 'things' are books, and the basis for their seizure is the ideas which they contain." Stanford v. Texas, 379 U.S. 476, 485 (1965). The documents seized by the Government appear to be irrelevant to the exercise by the Church of its right of freedom of expression: they are merely evidence of crimes. Accordingly, to the extent that petitioner contends that the search and seizure was illegal on First Amendment grounds because documents were seized, the contention must be rejected. (b) Seizure of Material from Church 99a analogy available would appear to be the case of a search directed at the premises of another institution pro- tected by the First Amendment such as a newspaper. That was the situation in Stanford Daily v. Surcher, 353 F. Supp. Alternatively, petitioner may be invoking the protections of the First Amendment because the search and seizure occurred on the premises of a church, Petitioner has not, however, cited any authority for the Proposition that a search and seizure is subject to special procedures because it occurs on the Premises of a church. The closest ee ee a eee — 124 (N.D. Cal. 1972) aff'd on opinion below, 550 F. 2d 664 (9th Cir. 1977), cert. granted, U.S. » 96 8. Ct. 52 (1978). Recognizing the overwhelming threat posed by a search of a newspaper office to the press' ability to gather and disseminate the news, and the avail- ability of the "less drastic means" of subpoena duces tecum to obtain the same information, the Court in Zurcher con- cluded that a "third party" search of a newspaper office is impermissible in all but a few situations. 353 F, Supp. at Ado6 Assuming arguendo that Zurcher does apply when the search is directed at the premises of a church rather than a news- paper, there remains a fundamental dif- ference between that case and the present .- 100a Situation. Zurcher presented a third- party search; that is, the newspaper and its members were not Suspects. The search was directed at the newspaper simply to obtain evidence of the alleged crimes of others. In this case, the affidavit of Agent Tittle, based upon information from former Church official Meisner, relates facts sufficient to establish probable cause to believe that various Church personnel violated the | Criminal laws of the United States and that evidence of such violations was on Church premises. Petitioner would have this Court hold that the First Amendment requires an adversary hearing prior to the issu- ance of a search warrant for execution at the premises of a church where pro- bable cause exists to believe that cri- minal offenses have been committed and the evidence is located at a church. To state this proposition is to refute it. For the reasons stated, petition- er's various First Amendment arguments l0Ola must be rejected. III. Probable Cause Petitioner challenges the finding of probable cause by the magistrate in three respects. First, petitioner asserts that much of the information related in the Affidavit of Agent Tittle and sup- plied by the informant, Michael James Meisner, is information not based upon the informant's personal knowledge, but rather was received by the informant from other parties. Petitioner asserts that this information relating to the location of the material to be seized is hearsay upon hearsay. Instead, Says petitioner, the affidavit should have presented to the magistrate the indicia of credibility of these other parties upon whom the in- formant relied, so that the magistrate could judge their reliability. Secondly, petitioner contends that the informant's knowledge as to the location of the material was stale. Thirdly, petitioner argues that, although the affidavit pre- sented to the magistrate may have sup- 102a plied probable cause as to some of the documents, it did not Supply the re- quisite probable cause as to all of the documents enumerated in the warrant. As the search and seizure in this case occurred pursuant toa warrant, Signed by the magistrate after his review, the starting point of the Court's ana- lysis of the affidavit in United States Vv. Vantresca, 380 U.S. 102 (1965). After reviewing past decisions concerning searches made pursuant to a warrant, the Court noted: “These decisions reflect the re- cognition that the Fourth Amend- ment's commands, like all consti- tutional requirements, are prac- tical and not abstract. If the , teachings of the Court's cases are to be followed and the constitu- tional policy served, affidavits for search warrants, such as the one involved here, must be tested 4 and interpreted by magistrates and : courts in a commonsense and realis- j tic fashion. They are normally i drafted by nonlawyers in the midst and haste of a criminal investiga- tion. Technical requirements of elaborate Specificity once exacted 103a under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police Officers from submitting their evidence to a judicial officer before acting." 380 U.S. at 108. The court proceeded to explain: “Where these circumstances are de- tailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in @ particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U.S. at 270, SO §.CcCt., at 735." 380 U.S. at 109. The teaching of Van- tresca was not disturbed in Spinnelli v. 104a 105a United States, 393 us. 410 (1969) or had been committed, and that the evi- . den ; § in United States v. Harris, 403 U.S. ence was in the places designated by 973 (1971). With these basic principles the warrant. As to the information in mind, the specific challenges of the respecting the location of documents, petitioner may be considered. Meisner's own testimony as a former All of petitioner's probable cause high church official was more than objections stem from the sort of hyper- adequate -- even if some of it was not technical, rather than commonsense, based upon personal observation. More- reading of the affidavit which was dis- Over, Meisner's mailing of the documents approved in ventresca. The Affidavit to specific locations corroborates his of Agent Tittle, based upon Meisner's knowledge of their location. still information, supplied a surfeit of pro- further, the affidavit details the names bable cause. The numerous indicia of of persons upon whom Meisner relies in reliability of Meisner's information is determining the location of the documents. detailed in many footnotes. Moreover, Taken in its entirety, the affidavit more Meisner's testimony, against his penal than adequately meets the requisite interest, is detailed and specific. standard of probable cause -- not proof Petitioner's first objection, that beyond a reasonable doubt. the affidavit did not present the indicia Petitioner's second probable cause Of reliability of the persons upon whom argument -- that Meisner's information Meisner relied, is absolutely without was stale -- must likewise be rejected. merit. Meisner's own testimony furnished The information about the location of the documents was, at most, two months ‘Bex more than an adequate basis for a finding Of probable cause to believe that a crime Old. While the passage of two months en ee 106a might well make information stale con- cerning the location of stolen vehicles Or a small quantity of contraband drugs, it does not make stale information about the location of massive files kept in the course of ordinary business opera- tions. There is, simply, no merit to the Church's staleness agrument. Thirdly, petitioner argues that Agent Tittle's Affidavit does not furnish probable cause as to some of the documents listed in the warrant. Petitioner particularly points to Items 100-149, 157, 159, 160 and 162 as not having sufficient factual support in the affidavit to justify their seizure. Based upon the Court's careful review of the Affidavit in terms of each of the enumerated items, the Court finds that seizure of these particular documents was fully justified by probable cause. 107a IV. BAD FAITH As another separate ground for invalidation of the warrant the church Of Scientology argues that "fijt is well established by case law that a challenge may be made against a subpoena on the ground that it is issued in bad faith." Petitioner's First Supplemental Trial Brief at 12. The Church charges that “[t]here is substantial indication of bad faith in the procurement and exe- cution of the search warrants when viewed in the context of the Government's twenty- year campaign to destroy this Church." Id. at l. Moreover, in oral agrument, counsel for the Church maintained that upon a prima facie showing by the Church of “bad faith," the Government should be precluded from making any use of the documents until after the Church has had an opportunity to conduct discovery and thereafter to prove its allegations of 108a bad faith. Counsel further asserted that such a showing had been made in this case, and that the Government seiz- ed documents without any intention of seeking criminal prosecutions but solely for the illegitimate purposes of harass- ing the Church. Petitioner's challenge to the warrant on grounds of "bad faith" must be rejected for the reasons that follow.2/ As noted previously, there was abundant evidence to support the magis- trate's conclusion that probable cause existed sufficiently to justify issuance Of the warrants. Informant Meisner fur- nished Agent Tittle with specific and comprehensive information for an inves- tigation of possible serious criminal conduct. See supra. Against this backdrop of an appa~ rently legitimate investigation of serious Crimes, and the issuance of a warrant upon an affidavit relating extensive, detailed information of specific criminal 109a activity, the Church's evidence to support its contention of bad faith is Singularly unpersusaive. In support of its claims Of bad faith, the Church points to past and present civil litigation between the Church and the Government, Government memoranda allegedly containing libelous mistatements, and alleged continuous governmental investigations into the Church's activities. Such evidence is depicted by the Church as evidence of the Government's hostile animus toward it. The evidence produced by petitioner fails to establish even a prima facie showing of Government's bad faith in ob- taining the warrants here in question, These general allegations of bad faith, even if true, do not, however, establish that the government acted in bad faith in securing the warrants and executing the search in this case. Although peti- tioner charges a massive seizure beyond the scope of the warrant, this contention has not been proved and remains the sub- 110a ject of a later hearing. To date, peti- tioner has failed to demonstrate anything illegal, or even improper, in the secur- ing and executing of the warrant. Perhaps aware of this conspicious omission of some demonstration of "bad faith" in the issuance or execution of the warrant, the Church points to the affidavit of Ian Shillington who testified that during the search of Church premises he overheard an unidentified F.B.I. agent instruct other agents that the "cover" story for the search was the alleged stolen government documents but the real target was evidence or documents of the Church relating to "the F.B.I., the AMA, the FDA, and the BBB," The Court finds this uncorroborated self-serving statement subject to con- Siderable question. In the face of the evidence of a legitimate search, pursuant to a bona fide warrant, the Court does not find that a prima facie showing of bad faith has been made. llla Moreover, the Church [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1014%3A1. Public record. Not legal advice.