U.S. v. Kember, s. 80-2563

Decision Date05 March 1982
Docket Number80-2564,Nos. 80-2563,s. 80-2563
Citation685 F.2d 451,222 U.S.App.D.C. 1
Parties, 9 Fed. R. Evid. Serv. 1583 UNITED STATES of America v. Jane KEMBER, Appellant. UNITED STATES of America v. Morris BUDLONG, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (D.C. Criminal No. 78-00401).

Richard H. Kirschner, Los Angeles, Cal., for appellants.

John A. Shorter, Jr., Washington, D. C., also entered an appearance for appellant Kember in No. 80-2563.

R. Kenneth Mundy, Washington, D. C., also entered an appearance for appellant Budlong in No. 80-2564.

Michael W. Farrell, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., at the time the briefs were filed, John A. Terry, Raymond Banoun, Judith Hetherton, Steven C. Tabackman and Katherine Winfree, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before ROBINSON, Chief Judge, and ROBB and GINSBURG, Circuit Judges.

ROBB, Circuit Judge:

In August 1978 Kember, Budlong, and nine other officials or employees of the Church of Scientology were indicted in the United States District Court for the District of Columbia. The indictment, in twenty-eight counts, charged the defendants with conspiracy to burglarize government offices and steal government documents, 18 U.S.C. § 371, interception of oral communications, 18 U.S.C. § 2511(1)(a), theft of government documents, 18 U.S.C. § 641, burglary, 22 D.C.Code § 1801(b), and obstruction of justice, 18 U.S.C. § 1503. Warrants were issued for the arrest of Kember and Budlong who were in England, and the United States requested the United Kingdom to extradite them on all the charges. After hearings before the Bow Street Stipendiary Magistrate the defendants were ordered extradited for trial on only the burglary charges. The High Court of Justice, Queens Bench Division, denied the defendants' application for a writ of habeas corpus and on March 13, 1980, Kember and Budlong were surrendered to the custody of the United States. Meanwhile, on October 26, 1979, the nine codefendants were convicted of various offenses charged in the indictment. They appealed, and on October 2, 1981, the convictions were affirmed. United States v. Heldt, 215 U.S.App.D.C. 206, 668 F.2d 1238 (1981) (Per Curiam).

Before their trial in the District Court Kember and Budlong moved for an order divesting the court of jurisdiction. The ground of their motion was that because they had been extradited for trial on only the burglary counts in the indictment, charging violations of the District of Columbia Code, the District Court lacked subject matter jurisdiction over the case. The motion was denied. United States v. Kember, 487 F.Supp. 1340 (D.D.C.1980). The defendants also moved to suppress documentary evidence seized by the government in a search of the offices of Scientology in Los Angeles. This motion was denied upon the ground that Kember and Budlong had failed to demonstrate a legitimate expectation of privacy in the premises searched. Thereafter the defendants went to trial before a jury.

During the trial of Kember and Budlong several of the convicted codefendants, who had been subpoenaed to testify for the government under grants of use immunity, refused to testify and were held in civil contempt by the District Court. They appealed on the ground, among others, that because Kember and Budlong were extradited and arraigned only on "local" charges, the court lacked jurisdiction to try them and the court therefore had no jurisdiction to compel the codefendants' testimony. This court held, however, that because federal and local offenses were properly joined in the original indictment the District Court had power to try Kember and Budlong, so that no jurisdictional barrier blocked the demand for the codefendants' testimony. United States v. Kember, 208 U.S.App.D.C. 380, 648 F.2d 1354 (1980) (Per Curiam). Thereafter Kember and Budlong were tried and found guilty on nine counts of burglary and each was sentenced to concurrent terms of imprisonment of two to six years. These appeals followed.

The government's evidence at trial established that Kember and Budlong were two of the highest officials of Scientology. At the time of the burglaries charged, Kember was Guardian World-Wide, a position subordinate only to that of L. Ron Hubbard, the founder of Scientology, and his wife Mary Sue Hubbard. The Guardian's Office, which had been established "to help (L. Ron Hubbard) enforce and issue policy, (and) to safeguard Scientology" set forth basic policy by means of Guardian Orders, which could be issued only by L. Ron Hubbard, Mary Sue Hubbard, or Kember. Budlong, as Deputy Guardian for Information World-Wide, supervised the Scientology Information Bureau which included the United States Information Bureau with headquarters in Los Angeles. An essential function of the Bureau was the collection of information of interest to Scientology by overt and covert means, including the theft of documents from government agencies.

The government's evidence consisted chiefly of testimony by Michael Meisner, a former official of Scientology, and documents seized by FBI agents from the offices of Scientology in Los Angeles. Without going into detail, it is enough to say that the proof established a project undertaken by Kember, Budlong, and other officials of Scientology, to steal documents of interest to Scientology, including litigation files of government attorneys, from various offices of the United States government. The thefts were accomplished by means of burglaries of government offices. As the district judge summarized the evidence: "the determination was made at the top to get every shred of evidence that the United States Government has on the Church of Scientology." These activities were carried on at the direction of the officers of Scientology, including Kember and Budlong. We refer to the statement of facts set out in some detail in United States v. Heldt, 215 U.S.App.D.C. 206, 668 F.2d 1238 (1981) (Per Curiam).

On this appeal Kember and Budlong aver that the District Court committed four prejudicial errors. First, they argue that the court abused its discretion by retaining the case when the only counts left for trial were those alleging violations of the District of Columbia Code. Second, they contend that the court violated the Anglo-American Extradition Treaty of 1977 by admitting "evidence of facts not submitted to the British courts during the extradition proceedings" and "evidence of facts which were not the 'facts in respect of which extradition has been granted.' " Third, they argue that the district judge erred by refusing to disqualify the United States Attorneys Office, or in the alternative, members of that Office, for bias and conflict of interest. Finally, they say the court should have sustained their motion to suppress. We consider each issue in turn.

Retention of the Case in Federal Court

The District of Columbia Code, Section 11-502(3), gives the United States District Court for the District of Columbia jurisdiction of "(a)ny offense under any law applicable exclusively to the District of Columbia which offense is joined in the same information or indictment with any Federal offense". In the indictment against Kember and Budlong, counts charging burglary in violation of the District of Columbia Code, 22 D.C.Code § 1801(b), were joined with counts charging conspiracy, interception of oral communications, and theft of government documents in violation of the Federal Criminal Code, 18 U.S.C. § 371, 18 U.S.C. § 2511(1)(a), and 18 U.S.C. § 641. Because they were extradited for trial and were tried for only the local burglary offenses Kember and Budlong say they should have been tried in the District of Columbia Superior Court. They argue that the District Court abused its discretion by failing to divest itself of jurisdiction. We do not agree.

As we have said, this court held in United States v. Kember, 208 U.S.App.D.C. 380, 648 F.2d 1354 (1980) (Per Curiam), that the District Court had the power to try Kember and Budlong for the local offenses: "We believe that, so long as an indictment properly joins federal and local offenses under Fed.R.Crim.P. 8 ... Congress intended to give the federal court power to try the local offense. The statute does not suggest that any disposition of the federal offense, subsequent to proper joinder in an indictment, withdraws power over the local offense." Id. at 385, 648 F.2d at 1359 (footnote and citation omitted). We noted, however, that the District Court must use discretion in exercising its power when the only issues presented for resolution are those based on local law:

Just as a federal court asked to exercise pendent jurisdiction over a state civil claim should decline to do so if the federal claims have been dismissed before trial ... the U.S. District Court for the District of Columbia should decline to try local offenses when those offenses have been disassociated from any federal charges prior to trial and retention of the case would not comport with "(t)he responsibilities of the District Court with respect to matters of federal concern." ... We underscore, however, that this is a matter of sound exercise of the court's discretion, not a question of its power.

Id. at 386, 648 F.2d at 1360 (quoting United States v. Jackson, 183 U.S.App.D.C. 270, 281, 562 F.2d 789, 800 (1977)) (citations omitted). In other words, the federal court must dismiss a criminal prosecution when federal charges have faded from the case prior to trial, leaving only District of Columbia offenses for adjudication, unless the court determines, in its discretion, that retention of the case is warranted by remaining matters of legitimate federal concern. 1

The defendants contend that the District Court abused its discretion because any matters of federal concern in ...

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