# Opposition Brief — United States v. Zolin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0226%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 491 U.S. 554 ## Text Iw THE Supreme Court of the Anited Ocroser Team, 1988 Unrrep States or America, v. Fraaykx S. Zoumw, Cavren or Screwtoiocy or Catsaronwim and Mary Sve Hussarp, Respondents. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RESPONDENTS’ SUGGESTION OF MOOTNESS AND BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI —Iaa=S=Sa=EaaSaEaEaSeaeaeaeaea=ammmnuuuuquwuuu eww” Exarc M. Liseeaman Counsel of Record Epwarp CoreLanp Rastnowrrz, Bovory, Stanparp, Kaiwsxy & Loeeeamay, P.C. 740 Broadway—Fifth Floor New York, New York 10003-9518 (212) 254-1111 Micnas. Lee Herrzsero 275 Madison Avenue New York, New York 10016 (212) 679-1167 Counsel for Respondents Church of Scientology of California and Mary Sue Hubbard Dated: September 26, 1988 Petitioner, Parties to the Proceedings Below and Rule 28.1 List The parties to the proceedings below are set forth in the caption. Respondent Church of Scientology of California has no parent companies, subsidiaries or affiliates to list pursnant to Rule 28.1. PAGE Table of Authorities a Statement of the Case 1 Suggestion of Mootness s Reasons Way Tue Perrrex Suouwe Be Dexuxw 10 1. The Order Restricting Dissemination Of The Contents Of The Documents Ordered Pro- duced To The IRS Was Consistent With De- cisions Of This Court Recognizing The District Court's Diseretion Power Te Protect Potential 10 17 ill TaBLe or AUTHORITIES , Cases: PAGE American Friends Service Committee vy. Webster, 720 F.2d 29 (D.C. Cir. 1983 ) 15 Black v. United States, 534 F.2d 524 (2d Cir. 1976) 16 Bob Jones University v. Simon, 416 US. 725 (1974) 17 Bourjaily v. United States, —~ U.S. ~~, 107 S.Ct. 2775 (1987) 26, 27 Chamberlain v. Kurtz, 589 F.2d 827 (Sth Cir.). cert. denied, 444 U.S. 842 (1979) 15 Church of Scientology of California vy. Armstrong, (No, (420153. Cal. Sup., L.A. Cty) 2 Clark vy, United States, 289 U.S. 1 (1933) 21, 25 De Funis vy. Odeqoard, 416 U.S. 312 (1974) 10 Enochs v. Williams Packing Co., 370 U.S.1 (1962) 17 Fisher v. United States, 425 U.S. 391 (1976) 20 Gluck v, United States, 771 F.2d 750 (3d Cir. 1985) 11 Ciumbel v. Pitkin, 124 U.S. 131 (1888) 11 Halkin v. Helms, 598 F.2d 1 (DC. Cir. 1978) 26 Hunt v. Blackburn, 128 U.S. 464 | 188s ) 20 In Re Antitrust Grand Jury, 805 F.2d 155 (6th Cir. 1986) 23, 24 In Re Berkeley & Co., luc., 629 F 2d 54S (Sth Cir. 1980) 23 lu ve Grand Jury Procecdinas (FMC Corp.), HO4 F.2d 798 (Sd Cir. 1979) a4 In Re Grand Jury Procecdinas United Stlaules vo Law- von |, GOO F.2d 215 (9th Cir. 1979) 21 iv PAGE In re John Doe Corp., 675 F.2d 482 (2d Cir. 1982) a4 In Re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) 23 In re Special September 1978 Grand Jury 11, 640 F.2d 49 (7th Cir. 1980) a4 Kerr vy. United States District Court, 426 U.S. 294 (1974) : 25 Lowrie +. United States, 824 F.2d 827 (10th Cir. 1987) 1h S.E.Ce v ESM Government Securities, lnc. 645 F.2d 310 (Sth Cir. 1981) 11 Tierney v. Schweiker, 718 F.2d 449 (DC.Cir, 1983) 16 Union Camp. Corp. v. Lewis, 385 F.2d 143 (4th Cir. 1967) a4 United States v. Arthur Young & Co., 465 U.S. 805 (1984) 11 United States v. Author Services, Inc.. 304 F.2d 1520 (9th Cir. 1986), amended, S11 F.2d 1264 (9th Cir. 1987) 6,9 lnited States v. Barrett, 804 F.2d 1376 (Sth Cir. 1986). vacated, 812 F.2d 936 (3th Cir. 1987) 14 United States v. Barrett, 837 F.2d 1341 (3th Cir. 1988), petition for cert. pending, No. 87-1705 14,15 United States v. Bob, 106 F.2d 37 (2nd Cir. 1989), cert denied, 308 US, 589 (1939) 21 lwited States v. Columbia Broadcasting System, In: 666 F.2d 364 (9th Cir.), cert. denied, 457 U.S. 1118 (1982) lz United States v. First Family Mortaaae ¢ orp., 739 F, 2d 1275 (7th Cir. 1984) 14) PAGE t wate d States v. bre dman, Wy. F.2d Us (3d Cir 1976) 12 l wate dl State s Vv, Frwy dni fa, 445 F.2d 1076 (9th Cir.), cert, dented, 404 LS. G58 (1971) 7 lnited States vy. Hodac and Zu 1g, OAS F2d 1347 (9th Cir. 1977) 20, 25 l wited States v. Aina. eb F.Supp. 293 (aD), (‘al, 1982) 2.) United States v. LaSalle National Bank, 437 U.S. 298 (1977) 10, 11, 12, 15 lnited States v. Niron, 418 U.S, 683. 712-14 (1974) 25 United States v. Powell, 379 U.S. 48 (1964) 10,12 United States v. Shewfelt, 455 F.2d 836 (9th Cir. 1972), cert, denied, 406 Us, 944 (1972) 6,7,19, 25 Upjohn v. United States, 449 U.S. 383 (1981) 20 Constitution, Statutes, Rules and Ri qulations: Federal Statutes 26 UUS« H103 14, 15, 16 26 U.S.C. © 61038(a) 15 26 U.S.C. © 7402 1] 26 US i421 a) 6, 16.17 26 U.S 7HO04( a) 12 26 C.F.LR. 601.1054) 4 Federal Rule of Evidence s01(d)(2)( KE Jn Federal Rule of Evidence 104(.) 6, 27 Local Rule 7.16 of the United States District Co the Central District of California o, 1S (ithe =>, 22 Va Jo Rev Author Itzbure & A / th) The 1 ) S-12 No ss 40) IN Chit Supreme Court of the United States (horoner Term, 1088 Uxrrep Srares of America, Petitioner Prank S. Zomx, Cueten or Scre~totoes Yr Catrrornta and Mary Sve Hueerarp. ; 'y LETIORARI TO THE UNITED STATES APPEALS POR THE NINTH CIRCTTT RESPONDENTS’ SUGGESTION OF MOOTNESS AND BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ‘ R srw? lents Chure! oft Seient Now of (‘a rornia al \f te ~ iM HT ihhard ry epectfulls recuse “ thy it this i ourt , +} | | ror 1 ’ of rt) ' - k r lew of le ; ; XY bb ‘ } y< . . ‘ir qn) ) e 13 Bg. In ve John Doe Corp., 675 F.2d 482 (2d ¢ ir I 2): In ve Grand Jury Proceedings (PMC Corp), HO4 Pod 7S (3d Cir. 1979): Union Camp. Corp. V. Lewis, 385 F.2d 145 (4th Cor. 1967). 25 evidence puts to rest the government’s argument that the rule eviscerates the exception. See e.g., Shewfelt, Clark, Hodge and Zweig. The fact that the government tried but failed to prove the existence of the exception by indepen- dent evidence in this case merely reflects the inadequacy of its evidence, and not a failure of the independent evi- dence rule.'* Nor does the independent evidence requirement conflict with the manner in which the validity of other claims of privilege are decided, as contended by petitioner. (Pet. 21.) For example, in United States v. Nixon, 418 U.S. 683, 713-14 (1974) relied upon by the government, (Pet. 21) the claim of privilege by the President was sufficient to render the materials presumptively privileged. It was only after the Special Prosecutor made a sufficient pre- liminary showing to rebut the presumption that an /» camera examination of the subpoenaed material was ap- propriate. 418 U.S. at 713-14. The point, of course, of the court of appeals’ opinion in this case was that the government did not make its prima facie showing. Whether the court of appeals would have deemed it ap- propriate to review the tapes at that juncture was an issue never considered or raised in the court below. In Kerr v. United States District Court, 426 U.S. 394, 404-406 (1974), this Court indicated that an in camera review of certain files would be an appropriate manner of addressing a claim of governmental privilege because the nature and weight of the privilege there varied with the nature of the specific document and because of the required balancing between claims of irrelevance and priv- "The government's relianee on Uirled States vo Wing, 536 F. Supp. 253 (C.D. Cal. 1982) is misplaced. As the decision makes clear, there was ample independent evidence to apply the excep- tion there. If anything, King illustrates the likelihood that where the attorney-client relationship is in facet abused, there will be ample evidence, other than the commanications themselves, to make a prima facic showing. 26 ilege and the opponents’ claim of need. Somewhat simi- larly, in Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir. 1978), the court observed that normally an affidavit claiming state secret claims is sufficient to sustain the claim of priv- ilege. The in camera exploration was not of the content of the material sought, but rather of affidavits and testi- mony demonstrating that the claim of privilege was valid. Those proceedings, which the appellate court thought proper, were held only to prove the validity of the claim because of the showing of necessity for the information. The government’s attempt to draw support for its posi- tion from Bourjaily v. United States, US. , 107 S.Ct. 2775 (1987), is equally to no avail. Bourjaily con- cerned the showing which must be made before a co-con- spirator’s statement is admitted under Federal Rule of Evidence 801(d)(2)(E). In holding that the proponent of such a statement is not limited exclusively to reliance on independent review, but rather may also rely on the state- ment itself,® this Court relied on Federal Rule of Evi- dence 104(a). That rule provides that “[p]reliminary questions concerning . . . the existence of a privilege, or the admissibility of evidence shall be determined by the court. ... In making its determination it is not bound by the rules of evidence except those with respect to priv- ileges” (emphasis added). The Court held that Rule 104 (a) thus overrode prior existing non-constitutional eviden- tiary rule, except those concerning privileges, a point underscored by this Court. 107 S.Ct. at 2780." Because 18 This Court specifically declined to decide whether the showing could be made exclusively by reliance on the hearsay statement itself. 107 S.Ct. at 2781. '® The concern underlying the attorney-client privilege is quite different than that underlying the hearsay rules, which derives from the presumptive unreliability of out of court statements. Nee Bourjaily, 107 S.Ct. at 2781. The very purpose of the attorney- client privilege, in contrast, is to ensure the reliability of the client’s statements to his attorney; the privilege is recownized be- cause it serves and promotes this important societal value and interest. ry | Rule 104 (a) and Bourjaily, specifically preserve pre-exist- ing evidentiary rules with respect to the determination and application of privileges, they support the continued application of the independent evidence rule in determin- ing the applicability of the crime-fraud exception, CONCLUSION The petition for a writ of certiorari should be denied, Respectfully submitted, Kric M. Litperman Counsel of Record Kpwarp CopELAND Rabinowitz, Boupty, STANDARD, Krinsky & Lirnerman, P.C, 40 Broadway—Fifth Floor New York, New York 10003-9518 (212) 254-1111 MicuakL Lee Herrzperc 275 Madison Avenue New York, New York 10016 (212) 679-1167 Counsel for Responds nis Church of Scientology of California and Mary Sue Hubbard Dated: September 26, LOSS APPENDIX la Order of United States Court of Appeals FOR PUBLICATION UNITED STATES COURT OF APPEALS For tue Nintu Crrevir Nos. 85-6065; 85-6105 D.C. No. CV85-440-HLH ORDER Uxrrep States or AMERICA, Petitioner/Appellee/ Cross-Appellant, Fraxk S. Zon, Respondent / Appellee, and Cneren or SciENTOLOGY OF CALIFORNIA and Mary Sce Hvuepparn, Intervenors/ Appellants / Cross-Appellees. Filed July », LOSS Before: Browning, Tang, Pregerson, Alarcon, Norris, Reinhardt, Beezer, Brunetti, Thompson and Leavy, Cireuit Judges. ORDER The opinion pratolistied at S42 F.2d 1125 i< amended to include the following concurrence : 2a Order ef United States Court of Appeals CONCURRENCE Norris, Circuit Judge, concurring in the result: I write separately to make it clear that I believe the inde- pendent evidence rule has been and should continue to be the law of the circuit. See United States v. Shewfelt, 455 F.2d 836 (9th Cir.), cert. denied, 406 U.S. 944 (1972). How- ever, I cannot join the court’s order because the majority has failed to make clear whether the order is a disposition on the merits, i.¢., whether it constitutes en bane authority that the Shewfelt independent evidence rule is the law of the circuit. If the order is intended to be a disposition on the merits, it is internally inconsistent because an en bane panel cannot both decide a case on the merits and vacate as improvidently granted the order of the full court au- thorizing it to decide the case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0226%3A03. Public record. Not legal advice.