668 F.2d 1238 (C.D. Cir. 1981), 79-2442, United States v. Heldt

Docket Nº:79-2442, 79-2447 to 79-2450, 79-2456, 79-2459 and 79-2462.
Citation:668 F.2d 1238
Party Name:UNITED STATES of America, v. Henning HELDT and Duke Snider, Appellants. UNITED STATES of America, v. Mary Sue HUBBARD, Appellant. UNITED STATES of America, v. Sharon THOMAS, Appellant. UNITED STATES of America, v. Gregory WILLARDSON, Appellant. UNITED STATES of America, v. Richard WEIGAND, Appellant. UNITED STATES of America, v. Cindy RAYMOND, Appe
Case Date:October 02, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1238

668 F.2d 1238 (C.D. Cir. 1981)

UNITED STATES of America,

v.

Henning HELDT and Duke Snider, Appellants.

UNITED STATES of America,

v.

Mary Sue HUBBARD, Appellant.

UNITED STATES of America,

v.

Sharon THOMAS, Appellant.

UNITED STATES of America,

v.

Gregory WILLARDSON, Appellant.

UNITED STATES of America,

v.

Richard WEIGAND, Appellant.

UNITED STATES of America,

v.

Cindy RAYMOND, Appellant.

UNITED STATES of America,

v.

Gerald Bennett WOLFE, Appellant.

UNITED STATES of America,

v.

Mitchell HERMANN, Appellant.

Nos. 79-2442, 79-2447 to 79-2450, 79-2456, 79-2459 and 79-2462.

United States Court of Appeals, District of Columbia Circuit

October 2, 1981

Argued Feb. 27, 1981.

As Amended Oct. 2 and 30, 1981.

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Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 78-401).

Philip Hirschkop, with whom Leonard S. Rubenstein and Geraldine R. Gennet, Alexandria, Va., were on the brief, for appellants in No. 79-2442. Counsel presented argument on behalf of all appellants on the issues of search and seizure.

Earl C. Dudley, Jr., Washington, D.C., for appellants in Nos. 79-2456 and 79-2462. Michael Nussbaum and Ronald Precup, Washington, D.C., also entered an appearance for appellants in Nos. 79-2456 and 79-2462.

Leonard Boudin, New York City, with whom Eric Liberman, San Francisco, Cal., and Dorian Bowman, New York City, were on the brief for appellant in No. 79-2447.

John Zwerling with whom Jonathan Shapiro and Diana Lee Evans, Alexandria, Va., were on the brief for appellant in No. 79-2459.

Leonard J. Koenick, Washington, D.C., was on the brief for appellant in No. 79-2448.

Roger E. Zuckerman and Roger C. Spaeder, Washington, D.C., were on the brief for appellants in No. 79-2449 and 79-2450.

Steven C. Tabackman and Melvyn H. Rappaport, Asst. U.S. Attys., with whom Charles F. C. Ruff, U.S. Atty., John A. Terry, Michael W. Farrell, Raymond Banoun, Judith Hetherton and Timothy J. Reardon, III, Asst. U.S. Attys. Washington, D.C., were on the brief for appellee.

Nadine Strassen was on the brief for amicus curiae, American Civil Liberties Union, urging reversal with respect to the search and seizure issue in Nos. 79-2442, 79-2447, 79-2448, 79-2449, 79-2450, 79-2452, 79-2456 and 79-2462.

Frederic R. Kellogg, Boston, Mass., was on the statement in lieu of brief for amicus curiae, National Moratorium on Prison Const., et al., in Nos. 79-2447, 79-2448, 79-2449, 79-2450, 79-2452 and 79-2462.

Before MacKINNON, ROBB and WALD, Circuit Judges.

Opinion PER CURIAM.

Opinion concurring in part and concurring in the result filed by Circuit Judge WALD.

PER CURIAM:

Appellants, 1 members of the Church of Scientology ("Scientology"), were indicted for completed conspiracies and substantive offenses involving their plan to identify, locate and obtain by various illegal means certain documents in the possession of the United States which related to Scientology, and their efforts thereafter to obstruct justice by thwarting the government's investigation of such criminal activities, by harboring and concealing a fugitive from arrest, and by causing the making of false declarations under oath before a grand jury. 2

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Appellants' motion before the district court to suppress documentary evidence seized in searches of Scientology offices in California 3 was denied after an extensive hearing. Thereafter, on October 8, 1979, Judge Richey, over the government's objection, granted appellants' motion to require the government to comply with a Disposition Agreement to which appellants contended the government had agreed. 4 Under this Agreement, each appellant was to be found guilty by the court on one specified count on the basis of the "Stipulation of Evidence." Upon consideration of this uncontested evidence and in accordance with the Disposition Agreement, the court found appellants guilty as follows: Hubbard, Heldt, Snider, Willardson, Weigand and Wolfe, of conspiracy to obstruct justice and other offenses (Count 23); Hermann, of conspiracy to burglarize government offices and steal documents (Count 1); and Thomas, of misdemeanor theft of government property (Count 17).

On December 4, 1979, after the presentence reports were received, appellants moved for Judge Richey's recusal. Judge Richey declined to continue the sentencing of appellants pending his ruling on the motion, and appellants were sentenced on December 6 and 7. 5 The recusal motion was subsequently denied in a memorandum and order filed on December 14, 1979 (J.A. at 387-93). These appeals followed. 6

The district court had previously ruled that

defendants have agreed not to challenge the sufficiency of the evidence before the trial court or on appeal. That is, the defendants will not challenge the accuracy of the facts stipulated by the government, and the defendants will not assert that the facts alleged do not amount to a violation of the crime charged because of other considerations.

Memorandum Opinion filed October 8, 1979, at 11 (J.A. at 358). This permitted appellants to raise the constitutionality of the search on appeal, which they have done.

The facts giving rise to this case involve appellants' covert operations to steal government documents pertaining to Scientology and a conspiracy to obstruct justice in connection with those operations. This program was carried out by the defendants and others through whet were termed the "Guardian Offices" of Scientology. To

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conceal evidence of their activities, defendants initiated the "Red Box" program by a general order dated 25 March 1977. 7 As indicated by the "Red Box" memorandum (n.7), that program was primarily designed to secrete and destroy documentary proof that Mary Sue Hubbard and her husband L. Ron Hubbard 8 engaged in any "illegal" or "incriminating activities." The existence of the Red Box program also illustrates the difficulty the government faced in obtaining documentary and other proof of the knowledge and intent of the defendants in carrying out their various criminal programs against various agencies of the government.

The principal contentions raised by appellants are: (1) that the government breached its plea agreement with Wolfe when it prosecuted him for conspiracy; (2) that the search of the offices of Scientology in California violated the fourth amendment; (3) that the trial judge should have recused himself on appellants' motion; (4) that the trial court erred in denying appellants' motion to disqualify all attorneys in the office of the United States Attorney from prosecuting the case; (5) that the government violated its agreement not to allocute at Hubbard's sentencings; and (6) that Hubbard's first and sixth amendment rights were violated by the refusal of the government

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and the court to grant "use" immunity to co-defendant Kember so that she could offer allegedly "exculpatory" testimony on Hubbard's behalf.

For the reasons set forth in detail in Parts I-VI infra, we reject each of these contentions and affirm the district court judgment. Because resolution of the issue involving Wolfe requires recitation of many of the facts that underlie this case, we address it first. Other facts will be set out as they become relevant to the other issues, which will be addressed in Parts II-VI.

I. WOLFE'S CLAIM THAT HIS PROSECUTION WAS BARRED

The appellant Wolfe contends that his prosecution for conspiracy, 18 U.S.C. § 371 (1976) is barred by his agreement to plead and his plea of guilty to misuse of a government seal, 18 U.S.C. § 1017 (1976). We disagree.

Resolution of the issue raised by Wolfe requires a statement of the facts and circumstances leading up to and surrounding his agreement to plead guilty, together with a summary of the events that followed. The narrative begins on the night of May 21, 1976 when the night librarian for the District of Columbia Bar Association library in the United States Courthouse saw two men come to the library and thereafter use the photocopy machine in the United States Attorney's Office. The same two men returned on the night of May 28. The librarian's suspicions being aroused, he alerted the United States Attorney's office which in turn informed the Federal Bureau of Investigation. A check of the sign-in logs of the courthouse and the library by FBI agents revealed that on May 21 the men had used the names of "J. Wolfe" and "J. Foster", and on May 28 the names of "Hoake" and "J. Foster". The FBI agents told the librarian to call the FBI if the men appeared again.

On June 11, 1976 the men did return to the library and the FBI was called. Two FBI agents confronted the men in the library and asked them for identification. Each produced what appeared to be an official Internal Revenue Service identification card bearing his photograph. One man showed the agents a card in the name of Thomas Blake and the other man exhibited a card in the name of John M. Foster. On checking with the IRS the agents determined that there was an IRS employee named Thomas Blake. Accordingly "Blake's" card was returned to him after the number on the card was noted. When "Foster" said he was no longer an IRS employee his identification card was confiscated. Both men were then permitted to leave the courthouse.

Three days later the FBI discovered that the man who had produced the Blake identification card was not the Thomas Blake employed at IRS. Moreover, the number which had appeared on the Blake card was assigned to another IRS employee.

On June 30, 1976 one of the FBI agents encountered "Blake" by chance in the hallway of the IRS National Office Building. The agent again asked him for identification. When he produced an IRS identification card in his true name,...

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