United States v. Hubbard
| Decision Date | 25 April 1979 |
| Docket Number | Crim. No. 78-0401. |
| Citation | 474 F. Supp. 64 |
| Parties | UNITED STATES of America v. Mary Sue HUBBARD et al. |
| Court | U.S. District Court — District of Columbia |
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Earl J. Silbert, U. S. Atty., Raymond Banoun, Judith Hetherton, Timothy J. Reardon, III, Steven C. Tabackman, Asst. U. S. Attys., Washington, D. C., for the U. S.
Leonard B. Boudin, Rabinowitz, Boudin & Standard, Michael Lee Hertzberg, New York City, for defendant Hubbard.
Philip J. Hirschkop, John D. Grad, Leonard S. Rubenstein, Hirschkop & Grad, P. C., Alexandria, Va., for defendants Heldt and Snider.
Roger E. Zuckerman, Roger C. Spaeder, Lawrence A. Katz, Richard A. Stanley, Wendy K. Manz, Zuckerman, Spaeder & Taylor, Washington, D. C., for defendants Willardson and Weigand.
Michael Nussbaum, James P. Davenport, Ronald G. Precup, Nussbaum & Owen, Washington, D. C., for defendants Hermann and Raymond.
John Kenneth Zwerling, Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., for defendant Wolfe.
On August 15, 1978, a United States Grand Jury empanelled by the United States District Court for the District of Columbia returned a twenty-eight count indictment against eleven individuals. Indicted are: Mary Sue Hubbard, Jane Kember, Morris Budlong, Henning Heldt, Duke Snider, Gregory Willardson, Richard Weigand, Mitchell Hermann, Cindy Raymond, Gerald Bennett Wolfe, and Sharon Thomas. Nine of the defendants are currently under the jurisdiction of the Court and two, Kember and Budlong, are in Great Britain, where extradition proceedings are pending. Of the nine individuals before the Court, the Grand Jury indicated its belief that seven of the defendants, Hubbard, Heldt, Snider, Weigand, Willardson, Raymond, and Hermann, held official positions within the United States Branch of the Guardian's Office of the Church of Scientology. The other two, Wolfe and Thomas, are charged with being agents of the Guardian's Office.
Counts One and Twenty-three charge the defendants with conspiracy. The Count One conspiracy charges each of the defendants except Wolfe1 with conspiring to collect, by covert means, data relating to the Church of Scientology, its founder L. Ron Hubbard, and other Church members, which was in the possession of the United States Department of Justice, the Department of the Treasury's Internal Revenue Service, and the Office of the United States Attorney for the District of Columbia. Count Twenty-three alleges that the defendants, except for Thomas, conspired to cover up the scope of these activities after two agents of the Church, Michael J. Meisner and Wolfe, were caught inside the United States Courthouse with fake IRS credentials.
Counts Two through Twenty-two charge the defendants with various offenses in furtherance of the conspiracy in Count One. Count Two charges all of the defendants except Wolfe, Thomas, and Weigand with the interception or aiding and abetting the interception of wire or oral communications in violation of 18 U.S.C. § 2511(1)(a). Counts Three through Eight, Fourteen, Fifteen, Nineteen and Twenty charge the defendants with second degree burglary or aiding and abetting such a crime under 22 D.C.Code 1801(b). Counts Nine through Thirteen, Sixteen through Eighteen, Twenty-one and Twenty-two charge the defendants with the theft of government property or aiding or abetting such theft in violation of 18 U.S.C. § 641.
Counts Twenty-four through Twenty-eight charge the defendants with various offense in furtherance of the conspiracy charged in Count Twenty-three. Count Twenty-four charges each of the defendants except Thomas with obstruction of justice in violation of 18 U.S.C. § 1503. Count Twenty-five through Twenty-eight charge the defendant Wolfe with false declarations before a Grand Jury in violation of 18 U.S.C. § 1623.
The defendants' counsel have requested that oral argument on their pretrial motions be held in three phases. The Court has determined that oral argument will not be necessary. Under Rule 1-9(f) of the United States District Court for the District of Columbia Rules, this decision is "within the sole discretion of the court."
The defendants move to dismiss Count One of the indictment on the ground that it improperly charges more than one conspiracy in a single count. Count One charges the defendants with agreeing to illegally locate and obtain information in the possession of the United States which relates to the Church of Scientology and to individuals, organizations, and agencies perceived to be enemies of the Church of Scientology. In support of the charge in Count One, the indictment alleges fifty-nine overt acts committed to effect the objects and means of this conspiracy.
The defendants contend that the allegations of this count actually encompass three distinct conspiracies: (1) the effort to obtain information from the Internal Revenue Service and the Tax Division of the Department of Justice concerning the government's effort to remove the tax exempt status of the Church of Scientology; (2) to protect the founder and leader of the Church of Scientology, L. Ron Hubbard, from harassment from governmental officials in general, and, particularly to keep him from being subjected to an abuse of the legal process through the subpoena power of the government; and (3) the scheme to obtain documents from all government agencies which had been withheld under the Freedom of Information Act, 5 U.S.C. § 552.
The defendants contend that this joinder of three conspiracies in one count of the indictment violates Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In Kotteakos, the Supreme Court reversed the convictions of defendants who were charged in a one-count indictment with a conspiracy to obtain fraudulent loans through the National Housing Act. Id. at 752-53, 66 S.Ct. 1239. At the center of the conspiracy was one man who arranged the fraudulent loans for a number of people. Id. at 754-55, 66 S.Ct. 1239. On the appeal before the Supreme Court, the government conceded that the indictment actually alleged several conspiracies in one count, id. at 752, 66 S.Ct. 1239, and the Court ruled that such a duplicitous indictment did not constitute harmless error. Id. at 767, 66 S.Ct. 1239. Thus, Kotteakos disallows the joinder of more than one conspiracy in a single count of an indictment.
This motion raises the question of what constitutes a single conspiracy. In ascertaining whether there is a single conspiracy or separate conspiracies, the crucial indicator is the nature of the conspiratorial agreement itself. United States v. Varelli, 407 F.2d 735, 742 (7th Cir. 1969), cert, denied, 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581 (1971). However, since the agreement is rarely explicit and in writing, its nature must be inferred from the conduct of the alleged conspirators. Simply because the overt acts which constitute the means and objectives of the conspiracy can logically be grouped into separate categories does not demonstrate that more than a single conspiracy is involved. See Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942), United States v. Johnson, 337 F.2d 180, 185 (4th Cir. 1964), aff'd, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966), citing Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 63 L.Ed. 561 (1919). Even if the defendants are correct in pointing out that there must be some linkage between what can logically be treated as separate agreements, the defendants are not correct in asserting that the acts alleged in Count One of the indictment in this case lack such linkage.
Two key factors control the contours of a conspiratorial agreement: "the persons privy thereto, and the objectives encompassed therein." Note, Federal Treatment of Multiple Conspiracies, 57 Col.L.Rev. 387, 387 (1957) (citations omitted), cited in United States v. Varelli, 407 F.2d at 743. In this case, there is a large overlap between the people involved in the "three conspiracies" as claimed by the defendants. Of the ten defendants named in Count One, only one has no involvement in the first conspiracy as defined by the defendants; only one has no involvement in the second conspiracy as defined by the defendants; and only three have no involvement in the third conspiracy as defined by the defendants. Since so many of the same people are engaged in each of these three supposedly separate conspiracies, it is logical to conclude that distinct agreements were not made but, rather, a single agreement encompassing each of the distinct objectives was made by each conspirator.
The second factor, which as previously indicated, often demonstrates a linkage between individuals so that an agreement can be inferred is the objectives encompassed by the behavior of the conspirators. In Kotteakos, there was more than a single conspiracy because each person who attempted to get a loan through the central figure had no interest in whether the other people trying to get similar fraudulent loans succeeded or not. See Blumenthal v. United States, 332 U.S. 539, 558, 68 S.Ct. 248, 92 L.Ed. 154 (1947). The absence of any stake in the ventures of others made a single conspiracy unlikely. In this case, the government alleges a single objective: to illegally locate and obtain information in the possession of the United States which relates to the Church of Scientology and to individuals, organizations, and agencies perceived to be enemies of the Church of Scientology. The alleged conspirators are all allegedly members of the Church. Their interest in advancing the Church's interest would be assisted in each of the...
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