United States Court of Appeals, District of Columbia Circuit

“ That the government is not then targeting the witness does not mean he might not eventually be a target. If all untargeted witnesses were granted compulsory use immunity then they could secure immunity from some of the worst then undiscovered crimes by merely testifying in court on a defendant's behalf. ”

“ It is too plain for argument that the conspiracy was not an offense contemplated by the plea agreement because the existence of the conspiracy, and all its details, although known to Wolfe, were deliberately concealed by Wolfe when his plea was accepted. If Wolfe's theory is sound then he could not be prosecuted for his perjury before the grand jury; indeed he could not have been prosecuted for murder had the conspirators done away with Meisner in order to silence him. ”

“ Although we thus recognize in principle the possibility of a disqualifying conflict arising out of a prosecutor's status as a civil defendant, we are nevertheless of the opinion that any conflict of interest that might have existed because two of the assistants here involved were made defendants in an action brought by Scientology based upon participation in an allegedly illegal search and seizure did not amount to a due process violation that would require vacation of appellants' sentences. ”

“ Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appear, or other proceeding therein. ”

“ When investigators fail to limit themselves to the particulars in the warrant, both the particularity requirement and the probable cause requirement are drained of all significance as restraining mechanisms, and the warrant limitation becomes a practical nullity. Obedience to the particularity requirement both in drafting and executing a search warrant is therefore essential to protect against the centuries-old fear of general searches and seizures. ”

“ We find, in short, absolutely no support for the claim that the criminal charges were either brought or prosecuted in a particular fashion in order to influence defendants to dismiss their civil suit. The government had previously acquired, as the affidavit for the search warrant fully supports, very substantial evidence of monstrous criminal offenses which no responsible United States Attorney could refuse to prosecute. ”

“ Appellants recognize that disqualification based on prejudice is required only if the alleged prejudice stems from an extrajudicial source. [FN71] Because every instance upon which appellants rely to demonstrate the trial judge's bias is either a judicial ruling or some other conduct that occurred during the judge's fulfillment of his judicial duties, we are tempted to reject appellants' argument out of hand. Recognizing the legal requirement of an extrajudicial source, however, appellants have attempted to create an inference of such fact on the basis of courtroom conduct. ”

“ If the judge had reasonable grounds to fear that appellants or some isolated member of the Church might be carried away by the passion of the moment and take some rash action, he had no obligation to tell them or their counsel that the security was imposed for that reason. Tight security measures, which as stated above are routine in the United States District Courts in the District of Columbia, are, for the most part, irrelevant to the merits of a criminal prosecution, especially in a nonjury suppression hearing. ”

“ Scientology's officers and undoubtedly some of its members were highly agitated against the government, as is proved by the widespread organization of the conspiracy and the extreme measures that the conspirators took in an effort to achieve the unlawful objectives. When an organization or its leaders are involved in judicial proceedings, security measures are properly implemented to protect against an overzealous rank and file member of the organization who overreacts to the action taken against his leaders or institution. ”

“ Initially, we are not persuaded by appellants' argument that because the indictment charged some of the defendants with illegally entering the office of a member of the United States Attorney's office all the assistants in the office had a disqualifying interest in this prosecution. Appellants mistakenly contend that the United States Attorney's office was the "victim;" to the extent that a "victim" exists in such a crime, it is the United States of America. ”

“ From all the circumstances it appears that a reasonable explanation of the judge's statement is that it was an inartful attempt to tell appellants that the security measures were a matter for the court and the Marshal to determine. The court also may have been motivated to protect the defendants from the damaging publicity that might have resulted from a statement by the court as to their numerous illegal acts as disclosed by the court file. In any event, in our judgment appellants have not carried their burden of establishing the appearance of prejudice. ”

“ The trial judge's conclusion that defendants were tardy in bringing their motion to recuse does not lack support in the record. Their claim that several incidents suddenly took on a different light once they learned that the trial judge had misled them concerning the reasons for the security in Los Angeles appears somewhat disingenuous. Even if we assume that those incidents are probative of prejudice or bias, we cannot believe that the dim light shed upon these matters by the discovery of an alleged falsehood perpetrated by the judge is sufficient to make the innocent appear evil. ”

“ Thus a good faith attempt to stay within the boundaries of an inherently broad warrant will support a finding that the search-taken as a whole-was reasonable, even though a majority of documents seized might turn out not to qualify for inclusion on more leisurely reflection. We must emphasize at this point, however, that our concern with the agents' obedience to the limitations of the warrant relates solely to determining whether a violation of such egregious magniture occurred that all fruits of the search must be suppressed. ”

“ There we have stated that the issue before us is not whether any particular documents used against defendants should have been suppressed because those documents were seized in violation of the scrupulous exactitude test; rather the question is whether documents lawfully seized under a valid warrant should be suppressed because the search accompanying their seizure was too general. The scrupulous exactitude test is too rigorous a standard to use in deciding that issue. ”

“ The Guardian's Office is charged with the protection of Scientology. The Guardians handle intelligence matters including covert operations to acquire government documents critical of Scientology, internal security within Scientology, and covert operations to discredit and remove from positions of power all persons whom Scientology considers to be its enemies. Mary Sue Hubbard and Henning Heldt are the ranking officers of the Guardians in the United States, with offices in Hollywood, California. ”

“ The remaining counts in the indictment shall not be dismissed pending disposition of any appeals brought by the defendants. In the event that a conviction of a particular defendant is reversed or vacated as a result of judicial review, the government retains the option of proceeding on any of the remaining counts as to that defendant. In the event that the conviction of any defendant is not reversed, all remaining counts as to that defendant shall be dismissed with prejudice upon entry of the final judgment of conviction. ”

“ If in this case law enforcement officers had conducted a document search as if no limiting warrant existed, rummaging at will among defendants' offices and files, then the mere existence of a valid-but practically irrelevant-warrant for certain specified documents would not be determinative of whether the search was so unreasonable as to require suppression of everything seized. ”

“ This statement was made during discussion concerning whether statements made by some of the agents who participated in the search to government lawyers in preparation for their defense in the civil action should be made available to the appellants.
Under some circumstances, the conflict of interest will be so strong that error might result if the trial court fails to disqualify a prosecutor from participation in a case when it learns of the facts giving rise to a conflicting interest. ”

“ Under section 144, the judge must determine the legal sufficiency of the affidavit required by that section accepting as true the facts stated with particularity therein. If those facts demonstrate bias, the judge must recuse himself. Section 455, since it imposes a duty directly upon the judge to evaluate his own conduct, requires no affidavit, and as noted supra, appellants did not file one in the district court. Their motion was accompanied by a memorandum of law, which contained allegations of fact that were verified by one of the defense counsel. ”

“ We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person's papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. ”

“ Lawrence "should (not) have been permitted to lay down the boundaries for the agents' search." [FN8] But her remarks are worthy of attention not only because they represent the only specific statement which the agents had before them to judge whether the structure was or was not part of the Heldt suite, but also because they corroborated the physical evidence indicating the separateness of the structure from the Heldt suite. For these reasons, I am convinced that entry into Mrs. Lawrence's office was outside the scope of the warrant and unlawful. ”

“ In the context of this case we believe the inadvertence limitation stands for the simple proposition that agents must not be searching for items outside the particulars of the warrant when they conduct the search; in other words, agents must act in good faith to confine themselves to searching for the specified *1268 **236 items. [FN60] If, while conducting a search reasonably designed to find the specified items, an agent observes an unspecified item for which probable cause to seize exists on its face, he may seize it. ”

“ It is established law that because a witness has been found guilty of the actions in question he is no longer entitled to claim the privilege of the fifth amendment with respect to those matters and he may be compelled to testify about them. ”

“ In July 1975, acting on instructions from Meisner, Wolfe entered the Tax Division of the Department of Justice in the Star Building in the District of Columbia. Wolfe entered the Tax Division's Offices some four times and removed documents which were copied and sent to Los Angeles.
In December 1975 a program was developed to obtain INTERPOL documents concerning Scientology, contained in files held by government agencies. To this end Meisner recruited Sharon Thomas, a Scientologist, and directed her to apply for a secretarial position within the Justice Department. ”

“ FN24. The right to be free from unreasonably broad searches is distinct from those rights which concern a warrant's validity:
"The general right of security from unreasonable search and seizure was given a sanction of its own and the amendment thus intentionally given a broader scope. That the prohibition against 'unreasonable searches' was intended, accordingly, to cover something other than the form of the warrant is a question no longer left to implication to be derived from the phraseology of the (Fourth) Amendment." ”

“ The agreed "Disposition" essentially amounts to an admission of guilt on the "stipulated record" to one count of the indictment and limits the challenges the defendants might assert to any conviction. As set forth above, the Disposition Agreement between the parties provided, inter alia, that the defendants agreed "not to challenge the sufficiency of the evidence ... on appeal (and to refrain from) assert (ing) that the facts alleged do not amount to a violation of the crime charged because of other considerations. " ”

“ If a supplementary document like an affidavit is essential to properly understand the limitations of the warrant, see text at 1244 supra, then its contents must be examined, or else communicated to the agents by their supervisors. [FN39] Minimization designed to control the proper scope of the search cannot occur without such knowledge.
FN35. Only when the agents are aware of the warrant, through personal knowledge or instruction, can they properly exercise the discretion vested in them to carry out its terms. ”

“ Furthermore, contrary to Wolfe's statement that his "situation is directly analogous to Phillips Petroleum" (Br. p. 39) the court emphasized that the conduct alleged in Count I was disclosed to the Special Prosecutor before the plea was entered. The court held, id. at 636, 637, "because the conduct alleged in Count I was disclosed to the Special Prosecutor before the plea was entered, the prosecution for the conduct alleged in Count I of this indictment and charged under Title 18 of the United States Code, is barred by the terms of the plea agreement." ”

“ On the night of May 28, 1976 Meisner and Wolfe returned to the courthouse, signing themselves in as Hoake and J. M. Foster. They went to Dodell's office, filled their briefcases with Scientology files and xeroxed them on the United States Attorney's machines. Working together on two machines they produced a stack of documents slightly larger than the one of May 21. After reviewing the documents obtained on May 28 Meisner determined that one more visit to Dodell's office would be necessary to copy the remaining Scientology documents. ”

“ A proper execution of a search warrant for numerous documents requires three things: adequate preparation; obedience to area limitations; and restrictions on seizure of items not mentioned particularly in the warrant. We discuss each requirement, and the degree to which it was adhered in this case, below.
FN34. 2 W. LaFave, Search and Seizure s 4.10 (d) (1978) ; see note 25 supra.
1. Adequate preparation. [9] [10] Warrants are not self-executing; they require agents to carry them out. ”