OCTOBER TERM, 1992
CHURCH OF SCIENTOLOGY OF CALIFORNIA v.
UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 91-946. Argued October 6, 1992-Decided November 16, 19921
Pursuant to its jurisdiction under 26 U. S. C. §§ 7402(b) and 7604(a), the District Court ordered a state-court Clerk to comply with a summons issued by the Internal Revenue Service (IRS) for the production of, inter alia, two tapes in the Clerk’s custody recording conversations between officials of petitioner Church of Scientology (Church) and their attorneys. Although the Church filed a timely notice of appeal, its request for a stay of the summons enforcement order was unsuccessful, and copies of the tapes were delivered to the IRS while the appeal was pending. The Court of Appeals dismissed the appeal as moot, ruling that no controversy existed because the tapes had already been turned over to the IRS.
Held: Compliance with the summons enforcement order did not moot the Church’s appeal. Delivery of the tapes to the IRS did not mandate dismissal by making it impossible for the Court of Appeals to grant the Church “any effectual relief.” See Mills v. Green, 159 U. S. 651, 653. Although it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, the Court of Appeals does have power to effectuate a partial remedy by ordering the Government to return or destroy any copies of the tapes that it may possess. Even if the Government is right that under §§ 7402(b) and 7604(a) the jurisdiction of the district court is limited to those matters directly related to whether or not the summons should be enforced, the question presented here is whether there was jurisdiction in the appellate court to review the allegedly unlawful summons enforcement order. There is nothing in the Internal Revenue Code to suggest that Congress sought to preclude such review, and, indeed, this Court has expressly held that IRS summons enforcement orders are subject to appellate review. See Reisman v. Caplin, 375 U. S. 440,449. Although several Courts of Appeals have accepted the Government’s argument in IRS enforcement proceedings, the force of that line of authority is matched by a similar array of decisions reaching a contrary conclusion in proceedings enforcing Federal Trade Commission discovery requests. There is no significant difference between the governing statutes that can explain the
10 CHURCH OF SCIENTOLOGY OF CAL. v. UNITED STATES
divergent interpretations, nor any reason to conclude that production of records relevant to a tax investigation should have mootness consequences that production of other business records does not have. Pp.12-18.
Vacated and remanded.
STEVENS, J., delivered the opinion for a unanimous Court.
Eric M. Lieberman argued the cause for petitioner. With him on the briefs were David B. Goldstein, Hillary Richard, and Michael Lee Hertzberg.
Deputy Solicitor General Wallace argued the cause for the respondents. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Griffin, Kent L. Jones, Charles E. Brookhart, and John A. Dudeck, Jr.
JUSTICE STEVENS delivered the opinion of the Court. Two tapes recording conversations between officials of the Church of Scientology (Church) and their attorneys in July 1980 have been the principal bone of contention in this, and two earlier, legal proceedings.
In an action filed in the Los Angeles County Superior Court,l the Church contended that the defendant had unlawfully acquired possession of the tapes. Pending resolution of that action, the state court ordered its Clerk to take custody of the tapes and certain other documents.
In 1984, in connection with an investigation of the tax returns of L. Ron Hubbard, founder of the Church of Scientology, the Internal Revenue Service (IRS) sought access to the Church documents in the state-court Clerk’s possession.2
1 Church of Scientology of California v. Armstrong, No. C420 153.
2 The Commissioner of Internal Revenue, as the delegate of the Secretary of the Treasury, has broad authority to examine the accuracy of federal tax returns. See generally Donaldson v. United States, 400 U. S. 517, 523-525 (1971). Section 7602(a) of the Internal Revenue Code authorizes the Secretary to summon any person to provide documents relevant to such an examination:
“For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any per-
After the Clerk was served with an IRS summons, he permitted IRS agents to examine and make copies of the tapes. Thereafter, in a federal action initiated by the Church in the Central District of California, the District Court entered a temporary restraining order directing the IRS to file its copies of the tapes, and all related notes, with the federal court.3 Those copies were subsequently returned to the Clerk of the state court.
On January 18, 1985, the IRS commenced this proceeding by filing a petition to enforce the summons that had previously been served on the state-court Clerk.4 The Church intervened and opposed production of the tapes on the ground that they were protected by the attorney-client privilege. After protracted proceedings, including review in this Court, see United States v. Zolin, 491 U. S. 554 (1989), on April 15, 1991, the District Court entered an order enforcing compliance with the summons. The Church filed a timely notice of appeal and unsuccessfully sought a stay of that order. While the appeal was pending, copies of the tapes were delivered to the IRS. Thereafter, the Court of Appeals ordered the Church to show cause why its ap-
son for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary is authorized-
“(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry.” 26 U. S. C. § 7602(a).
3 Church of Scientology v. Armstrong, No. CV 84-9003-HLH (CD Cal., Nov. 27, 1984).
4 Sections 7402(b) and 7604(a) confer jurisdiction on the federal district courts to enforce a summons issued by the IRS. Title 26 U. S. C. § 7402(b) provides:
“If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.”
Section 7604(a) is virtually identical to § 7402(b) except that the word “records” appears in § 7604(a).
12 CHURCH OF SCIENTOLOGY OF CAL. v. UNITED STATES
peal should not be dismissed as moot. After briefing on the mootness issue, the court dismissed the appeal. It explained:
“Because it is undisputed that the tapes have been turned over to the IRS in compliance with the summons enforcement order, no controversy exists presently and this appeal is moot.” United States v. Zolin, No. 9155506 (CA9, Sept. 10, 1991).
We granted the Church’s petition for certiorari to consider the narrow question whether the appeal was properly dismissed as moot. 503 U. S. 905 (1992).
It has long been settled that a federal court has no authority “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Mills v. Green, 159 U. S. 651, 653 (1895). See also Preiser v. Newkirk, 422 U. S. 395, 401 (1975); North Carolina v. Rice, 404 U. S. 244, 246 (1971). For that reason, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant “any effectual relief whatever” to a prevailing party, the appeal must be dismissed. Mills, 159 U. S., at 653. In this case, after the Church took its appeal from the April 15 order, in compliance with that order copies of the tapes were delivered to the IRS. The Government contends that it was thereafter impossible for the Court of Appeals to grant the Church any effectual relief. We disagree.
While a court may not be able to return the parties to the status quo ante-there is nothing a court can do to withdraw all knowledge or information that IRS agents may have acquired by examination of the tapes-a court can fashion some form of meaningful relief in circumstances such as
these. Taxpayers have an obvious possessory interest in their records. When the Government has obtained such materials as a result of an unlawful summons, that interest is violated and a court can effectuate relief by ordering the Government to return the records. Moreover, even if the Government retains only copies of the disputed materials, a taxpayer still suffers injury by the Government’s continued possession of those materials, namely, the affront to the taxpayer’s privacy. A person’s interest in maintaining the privacy of his “papers and effects” is of sufficient importance to merit constitutional protection.5 Indeed, that the Church considers the information contained on the disputed tapes important is demonstrated by the long, contentious history of this litigation. Even though it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, a court does have power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession. The availability of this possible remedy is sufficient to prevent this case from being moot.6
5 The Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
6 Petitioner also argues that a court can effectuate further relief by ordering the IRS to refrain from any future use of the information that it has derived from the tapes. Such an order would obviously go further towards returning the parties to the status quo ante than merely requiring the IRS to return the tapes and all copies thereof. However, as there is no guarantee that the IRS will in fact use the information gleaned from the tapes, it could be argued that such an order would be an impermissible advisory opinion. Cf. G. M. Leasing Corp. v. United States, 429 U. S. 338, 359 (1977) (suppression of fruits of illegal IRS search “premature” as issue can be considered “if and when proceedings arise in which the Government seeks to use the documents or information obtained from them”). But
14 CHURCH OF SCIENTOLOGY OF CAL. v. UNITED STATES
The Government argues, however, that these basic principles are inapplicable in IRS summons enforcement proceedings because of the particular nature of the statute governing such proceedings. Reasoning from the premise that federal courts are empowered to consider only those matters within their jurisdiction, the Government argues that in IRS summons enforcement proceedings the subject-matter jurisdiction of the district court is limited to determining only whether the court should “compel … production of” the information requested by the summons. 26 U. S. C. §§ 7402(b), 7604(a). See n. 4, supra. Once the court has answered that question and compliance has occurred, there is nothing more for the district court to decide and the jurisdiction of the district court evaporates.
We think the Government misconceives the inquiry in this case. The Government mayor may not be right that under §§ 7402(b) and 7604(a) the jurisdiction of the district court is limited to those matters directly related to whether or not the summons should be enforced. Indeed, the scope of the district court’s jurisdiction under those provisions was the issue over which this Court deadlocked in United States v. Zolin, 491 U. S. 554 (1989).7 The question presented in the
see FTC v. Gibson Products of San Antonio, Inc., 569 F.2d 900, 903 (CA5 1978) (court can effectuate relief, despite compliance with FTC subpoena, by requiring FTC to return subpoenaed documents and forbidding FTC to use materials in adjudicatory hearing). Because we are concerned only with the question whether any relief can be ordered, we leave the “future use” question for another day. For now, we need only hold that this case is not moot because a court has power to order the IRS to return or destroy any copies of the tapes that it may have in its possession.
7 In Zolin, the District Court enforced the IRS summons, but placed restrictions on the IRS’ ability to disclose the summoned materials to any other government agency. The Ninth Circuit affirmed, United States v. Zolin, 809 F.2d 1411, 1416-1417 (1987), and we granted certiorari in part to consider whether the District Court, in conditioning its enforcement of the IRS summons, exceeded its jurisdiction under §§ 7402(b) and 7604(a). Zolin, 491 U. S., at 556. We were evenly divided on that question and therefore affirmed the Ninth Circuit. Id., at 561. The issue still divides
current incarnation of this case is whether there was jurisdiction in the appellate court to review the allegedly unlawful summons enforcement order. On that question, the Government’s elaborate statutory argument is largely irrelevant. There is nothing in the statute to suggest that Congress sought to preclude appellate review of district court enforcement orders. To the contrary, we have expressly held that IRS summons enforcement orders are subject to appellate review. See Reisman v. Caplin, 375 U. S. 440, 449 (1964). Thus, whether or not there is jurisdiction in the appellate court to review the District Court’s order turns not on the subject matter of Congress’ jurisdictional grant to the district courts, but on traditional principles of justiciability, namely, whether an intervening event has rendered the controversy moot. And, as we have already explained, this case is not moot because if the summons were improperly issued or enforced a court could order that the IRS’ copies of the tapes be either returned or destroyed.
We recognize that several Courts of Appeals have accepted the Government’s argument in IRS enforcement proceedings,S but the force of that line of authority is matched
the lower courts. Compare United States v. Zolin, 809 F. 2d, at 14161417, and United States v. Author Services, Inc., 804 F.2d 1520, 1525-1526 (CA9 1986) (district court has “considerable” discretion to set terms of enforcement order), opinion amended, 811 F.2d 1264 (1987), with United States v. Barrett, 837 F.2d 1341(CA5 1988) (en banc) (district court lacks authority to “conditionally enforce” IRS summons; inquiry limited to single question of whether summons should be enforced), cert. denied, 492
8 United States v. Kersting, 891 F.2d 1407, 1410, n. 8 (CA9 1989), cert. denied, 498 U. S. 812 (1990); Hintze v. IRS, 879 F.2d 121, 124-125 (CA4 1989); United States v. Church of World Peace, 878 F.2d 1281 (CAlO 1989); United States v. Sherlock, 756 F.2d 1145, 1146-1147 (CA5 1985); United States v. First Family Mortgage Corp., 739 F.2d 1275, 1278-1279 (CA7 1984); United States v. Kis, 658 F.2d 526,533 (CA7 1981), cert. denied, 455 U. S. 1018 (1982); United States v. Equity Farmers Elevator, 652 F.2d 752
16 CHURCH OF SCIENTOLOGY OF CAL. v. UNITED STATES
by a similar array of decisions reaching a contrary conclusion in proceedings enforcing Federal Trade Commission (FTC) discovery requests.9 There is no significant difference between the governing statutes that can explain the divergent interpretations.lO Nor is there any reason to conclude that
(CA8 1981); United States v. Silva & Silva Accountancy Corp., 641 F.2d 710, 711 (CA9 1981); United States v. Deak-Perera Int’l Banking Corp., 610 F.2d 89 (CA2 1979); Kurshan v. Riley, 484 F.2d 952 (CA4 1973); United States v. Lyons, 442 F.2d 1144, 1145 (CA1 1971). But see Gluck
9 See FTC v. Gibson Products of San Antonio, Inc., 569 F. 2d, at 903 (compliance with district court order enforcing FTC subpoena does not moot appeal; court can effectuate relief by requiring FTC to return subpoenaed documents and forbidding FTC from using materials in adjudicatory hearing); FTC v. Ernstthal, 197 U. S. App. D. C. 174, 175,607 F.2d 488, 489 (1979) (compliance with FTC subpoena does not moot appeal where court can order FTC to return subpoenaed documents); Atlantic Richfield Co. v. FTC, 546 F.2d 646, 650 (CA5 1977) (same); FTC v. Browning, 140 U. S. App. D. C. 292, 293-294, n. 1, 435 F.2d 96, 97-98, n. 1 (1970) (same). Cf. FTC v. Invention Submission Corp., 296 U. S. App. D. C. 124, 127, n. 1, 965 F.2d 1086, 1089, n. 1 (1992) (compliance with district court order enforcing FTC civil investigative demand pursuant to 15 U. S. C. §57b-1(e) does not moot appeal as court could order FTC “to return responsive materials and to destroy any records derived from them”); Casey v. FTC, 578 F.2d 793(CA9 1978) (action seeking to enjoin FTC investigation presents live controversy despite parties’ compliance with FTC subpoena as appellate court can order FTC to return wrongfully subpoenaed records). See also Government of Territory of Guam v. Sea-Land Service, Inc., 294 U. S. App. D. C. 292, 295, 958 F.2d 1150, 1153 (1992) (compliance with district court order enforcing Federal Maritime Commission discovery order does not moot appeal where party seeks return of discovered materials).
There is no merit to the Government’s contention that the FTC cases are distinguishable in that they involve adjudicative, as opposed to investigative, subpoenas. While Gibson Products involved an adjudicative subpoena, Invention Submission, Casey, and Atlantic Richfield all involved investigative subpoenas.
10 In fact, the summons enforcement provisions of the Internal Revenue Code “closely paralle[l]” the corresponding provisions of the Federal Trade Commission Act. See Handler, Recent Antitrust Developments-
production of records relevant to a tax investigation should have mootness consequences that production of other business records does not have. Moreover, in construing these provisions of the Internal Revenue Code, the Court has considered it appropriate to rely on its earlier cases involving other statutes, including the Federal Trade Commission Act. See United States v. Powell, 379 U. S. 48, 57 (1964) (citing United States v. Morton Salt Co., 338 U. S. 632, 642-643 (1950)).
We therefore conclude that the appeal was improperly dismissed as moot. In so concluding we express no opinion on the merits of the Church’s argument that the Government did not establish an adequate evidentiary basis to support the District Court’s determination that the tapes fell within the crime-fraud exception to the attorney-client privilege. Nor do we express any opinion about the res judicata contention advanced in the Government’s brief in opposition to the petition for certiorari. Brief for United States in Opposition
1964, 63 Mich. L. Rev. 59, 90 (1964). Section 9 of the FTC Act provides, in pertinent part:
“Any of the district courts of the United States … may, in case of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation issue an order requiring such person, partnership, or corporation … to produce documentary evidence if so ordered …. ” 38 Stat. 722, as amended, 15 U. S. C. § 49.
In the words of Professor Handler:
“Section 7602 of the Internal Revenue Code authorizes the Secretary of the Treasury or his delegate to summon taxpayers or other witnesses to testify and to produce relevant and material documents. Section 9 of the FTC Act grants the same power to the Commission. Should a recipient of a summons or subpoena refuse to comply, both statutes afford the same enforcement procedures. In neither case is the administrative subpoena self-executing: obedience can be obtained only by court order. In addition, both statutes, which are in pari materia, make it a criminal offense to ‘neglect’ to appear or to produce subpoenaed documents.” 63 Mich. L. Rev., at 91 (footnotes omitted).
18 CHURCH OF SCIENTOLOGY OF CAL. v. UNITED STATES
13-14. We simply hold that compliance with the summons enforcement order did not moot the Church’s appeal.ll
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
11 In reaching this conclusion, we reject petitioner’s “fall back” argument that even if compliance with a summons enforcement order by the subject of the IRS investigation moots an appeal, compliance by a disinterested third party-here, the Clerk of the Los Angeles Superior Court-does not. Brief for Petitioner 25-34; Reply Brief for Petitioner 16-18. We agree with the Government that a “difference in the method of compliance does not create a distinction for the purpose of the constitutional case or controversy requirement.” Brief for United States 30. This case presents a justiciable controversy not because a third party complied with the summons enforcement order, but because petitioner has a stake in the outcome of the proceeding and a federal court can effectuate relief should petitioner prevail on the merits.
There is a distinction in the law between the enforcement of discovery orders directed at parties and the enforcement of discovery orders directed at disinterested third parties, but that distinction derives from concerns regarding finality, not mootness. As a general rule, a district court’s order enforcing a discovery request is not a “final order” subject to appellate review. A party that seeks to present an objection to a discovery order immediately to a court of appeals must refuse compliance, be held in contempt, and then appeal the contempt order. See United States v. Ryan, 402 U. S. 530 (1971). However, under the so-called Perlman doctrine, see Perlman v. United States, 247 U. S. 7 (1918), a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance. Ibid. See generally 15B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3914.23, pp. 156-167 (2d ed. 1992). This distinction has no bearing on this case because a district court order enforcing an IRS summons is an appealable final order. See Reisman v. Caplin, 375 U. S. 440 (1964). There is no “third-party exception” because there is no general rule barring immediate appeal of IRS summons enforcement orders.
United States v. Zolin
491 U.S. 554 (1989)
U.S. Supreme Court
United States v. Zolin, 491 U.S. 554 (1989)
United States v. Zolin
Argued March 20, 1989
Decided June 21, 1989
491 U.S. 554
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT 1
The Internal Revenue Service (IRS), as part of its investigation of the tax returns of L. Ron Hubbard, founder of the Church of Scientology (the Church), filed in the Federal District Court a petition to enforce a summons it had served upon the Clerk of the Los Angeles County Superior Court demanding that he produce documents, including two tapes, in his possession in conjunction with a pending suit. The Church and Mary Sue Hubbard, intervenors in the state court action and respondents here, intervened to oppose production of the materials. They claimed, inter alia, that the IRS was not seeking the materials in good faith, and that the attorney-client privilege barred the tapes’ disclosure. The IRS argued, among other things, that the tapes fell within the exception to the attorney-client privilege for communications in furtherance of future illegal conduct — the so-called “crime-fraud” exception — and urged the District Court to listen to the tapes in making its privilege determination. In addition, the IRS submitted a declaration by a special agent which had included partial tape transcripts the IRS lawfully had obtained. The court rejected respondents’ bad-faith claim and ordered production of five of the requested documents, but it conditioned its enforcement order by placing restrictions upon IRS dissemination of the documents. The court also ruled that the tapes need not be produced, since they contained privileged attorney-client communications to which, the quoted excerpts revealed, the crime-fraud exception did not apply. The court rejected the request that it listen to the tapes, on the ground that that request had been abandoned in favor of using the agent’s declaration as the basis for determining the privilege question. The Court of Appeals affirmed the conditional enforcement order. As to the privilege issue, it agreed with respondents that the District Court would have been without power to grant the IRS’ demand for in camera review of the tapes because the Government’s evidence of crime or fraud must come from sources independent of the attorney-client communications on the tapes. Reviewing the independent evidence (a review that excluded the partial transcripts), the court affirmed the District Court’s determination as to the inapplicability of the crime-fraud exception.
Page 491 U. S. 555
1. Insofar as it upheld the District Court’s conditional enforcement order, the Court of Appeals’ judgment is affirmed by an equally divided Court. P. 491 U. S. 561.
2. In appropriate circumstances, in camera review of allegedly privileged attorney-client communications may be used to determine whether the communications fall within the crime-fraud exception. Pp. 491 U. S. 562-575.
(a) Federal Rule of Evidence 104(a), which provides that a court is bound by the rules of evidence with respect to privileges when determining the existence of a privilege, does not prohibit the use of in camera review. Pp. 491 U. S. 565-570.
(b) However, before a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that such review may reveal evidence that establishes the exception’s applicability. Once this threshold showing is made, the decision whether to engage in in camera review rests in the sound discretion of the court. Pp. 491 U. S. 570-572.
(c) The party opposing the privilege may use any relevant nonprivileged evidence, lawfully obtained, to meet the threshold showing, even if its evidence is not “independent” of the contested communications as the Court of Appeals uses that term. Pp. 491 U. S. 573-574.
(d) On remand, the Court of Appeals should consider whether the District Court’s refusal to listen to the tapes in toto was justified by the manner in which the IRS presented and preserved its in camera review request. If its demand was properly preserved, that court, or the District Court on remand, should determine whether the IRS has presented a sufficient evidentiary basis for in camera review and whether it is appropriate for the District Court, in its discretion, to grant the request. Pp. 491 U. S. 574-575.
809 F.2d 1411, 842 F.2d 1135, and 850 F.2d 610, affirmed in part, vacated in part, and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which all other Members joined, except BRENNAN, J., who took no part in the consideration or decision of the case.
Page 491 U. S. 556
JUSTICE BLACKMUN delivered the opinion of the Court.
This case arises out of the efforts of the Criminal Investigation Division of the Internal Revenue Service (IRS) to investigate the tax returns of L. Ron Hubbard, founder of the Church of Scientology (the Church), for the calendar years 1979 through 1983. We granted certiorari, 488 U.S. 907 (1988), to consider two issues that have divided the Courts of Appeals. The first is whether, when a district court enforces an IRS summons, see 26 U.S.C. § 7604, the court may condition its enforcement order by placing restrictions on the disclosure of the summoned information. [Footnote 1] The Court of Appeals in this case upheld the restrictions. We affirm its judgment on that issue by an equally divided Court.
The second issue concerns the testimonial privilege for attorney-client communications and, more particularly, the generally recognized exception to that privilege for communications in furtherance of future illegal conduct — the so-called “crime-fraud” exception. The specific question presented is whether the applicability of the crime-fraud exception must be established by “independent evidence” (i.e., without reference to the content of the contested communications themselves) or, alternatively, whether the applicability of that exception can be resolved by an in camera inspection of the allegedly privileged material. [Footnote 2] We reject the “independent evidence” approach and hold that the district court, under
Page 491 U. S. 557
circumstances we explore below, and at the behest of the party opposing the claim of privilege, may conduct an in camera review of the materials in question. Because the Court of Appeals considered only “independent evidence,” we vacate its judgment on this issue and remand the case for further proceedings. [Footnote 3]
In the course of its investigation, the IRS sought access to 51 documents that had been filed with the Clerk of the Los Angeles County Superior Court in connection with a case entitled Church of Scientology of California v. Armstrong, No. C420 153. The Armstrong litigation involved, among other things, a charge by the Church that one of its former members, Gerald Armstrong, had obtained by unlawful means documentary materials relating to Church activities, including two tapes. Some of the documents sought by the IRS had been filed under seal.
The IRS, by its Special Agent Steven Petersell, served a summons upon the Clerk on October 24, 1984, pursuant to 26 U.S.C. § 7603, demanding that he produce the 51 documents. [Footnote 4] The tapes were among those listed. App. 33-38. On November 21, IRS agents were permitted to inspect and copy some of the summoned materials, including the tapes.
On November 27, the Church and Mary Sue Hubbard, who had intervened in Armstrong, secured a temporary restraining
Page 491 U. S. 558
order from the United States District Court for the Central District of California. The order required the IRS to file with the District Court all materials acquired on November 21 and all reproductions and notes related thereto, pending disposition of the intervenors’ motion for a preliminary injunction to bar IRS use of these materials. Exh. 2 to Petition to Enforce Internal Revenue Summons. By order dated December 10, the District Court returned to the IRS all materials except the tapes and the IRS’ notes reflecting their contents. See App. 30.
On January 18, 1985, the IRS filed in the District Court a petition to enforce its summons. In addition to the tapes, the IRS sought 12 sealed documents the Clerk had refused to produce in response to the IRS summons. The Church and Mary Sue Hubbard intervened to oppose production of the tapes and the sealed documents. Respondents claimed that IRS was not seeking the documents in good faith, and objected on grounds of lack of relevance and attorney-client privilege.
Respondents asserted the privilege as a bar to disclosure of the tapes. The IRS argued, among other things, however, that the tapes fell within the crime-fraud exception to the attorney-client privilege, and urged the District Court to listen to the tapes in the course of making its privilege determination. In addition, the IRS submitted to the court two declarations by Agent Petersell. In the first, Petersell stated his grounds for believing that the tapes were relevant to the investigation. See Declaration in No. CV850440-HLH.
DECLARATION OF GERALD ARMSTRONG1
I, GERALD ARMSTRONG, declare as follows:
1) I have been advised by my attorney, Julia Dragojevic, that cross-defendant organization has moved to continue the trial of the cross-complaint, now set for January 19, 1987. The organization has offered three reasons for its motion: A) it was not aware of a “brainwashing” claim until it got my response to its motion for summary adjudication on the application of statutes of limitation to the pc file issue; B) it wants to first get the Appeals Court decision in the document
case; C) it needs more time for discovery. 2) “Brainwashing” is the organization’s term. It cannot profess ignorance of the subject as L. Ron Hubbard wrote as early as 1956 in a “Technical Bulletin” attached hereto as Exhibit A:
“We (Scientology) know more about psychiatry than psychiatrists. We can brainwash faster than the Russians (20 secs to total amnesia against three years to slightly confused loyalty).”
And the organization cannot honestly claim that any mention by me of Hubbardian or organization mind control is a new surprise. Attached hereto as Exhibit B are two pages from a declaration I filed in 1982 in which I state: “What most Scientologists, and especially Sea Org members don’t know is that Mr. Hubbard had duped
them. My knowledge based on documentation and observation, is that the major reason for Mr. Hubbard’s calling Scientology a ‘religion,’ in addition to tax evasion, is to hide behind Constitutional guarantees for religions and so carry out his scheme of mind control to keep his followers duped. He has systematically and knowingly lied to and defrauded his followers, kept them from finding out the truth or becoming free with cruel and bizarre treatment, as for example with the RPF, and kept them economically and mentally suppressed, while he made millions of dollars from their labor.”
The Court touched on mind control in the decision in the document case:
….the Church or its minions is fully capable of intimidation or other physical of psychological abuse if it suits their ends. The record is replete with evidence of such abuse.”
And common sense yields only mind control as the explanation for the years of submission to the abuse. The organization has known of its own practices for decades, has known for over four years that I defined some of those practices as mind control, and has known for over two years that the Court considered “psychological abuse” and Hubbard’s “controlling, manipulating….his adherents” part of this case. Mind control is not a new subject which would require of the organization a new defense or more time in which
to create it.
3) Regarding continuing the trial of the cross-complaint until issuance of the Appeals Court decision in the document case, it was cross-defendant organization which moved to sever the cross-complaint as unrelated to the underlying document case.
4) In the document case, for a trial that lasted thirty days, because the organization insisted on an expedited trial, I had twenty months in which to prepare for my defense. From the time of filing of the cross-complaint until the present trial date, the organization will have had fifty months. The organization has taken my deposition at least twenty-five days, and has taken the deposition of virtually everyone connected to me at some point in this litigation. Each person on this side whom the organization has sought to depose has complied and has answered any relevant questions. My attorneys advise me that because of the organization’s compartmentalization and obstructionist tactics, taking any organization depositions is a costly and frustrating waste of time. The organization knows virtually ever fact of my life since I was born which has any connection at all to the issues in the cross-complaint; there is nothing left to discover. Discovery by the organization is for this reason, and because of attorney tactics and behavior, largely harassive. The extension of discovery is just the extension of harassment.
5) The organization cannot honestly argue that it was prevented in any way from getting whatever discovery it has wanted or from getting its many motions, several of which were in fact obstructive of legitimate discovery, heard by this Court. The organization has used 12 law firms in this case, and these attorneys have all been involved in other Scientology litigation and have deposed all my potential witnesses in those cases in addition to this. In addition to the staggering sums paid to attorneys to litigate this case, the organization has paid at least hundreds of thousands of dollars for PI’s, for intelligence operations and for media black PR campaigns against me. Where it could not wait for legal discovery, it stole my documents. And as shown in my earlier declarations, it has, through perjury and manipulation, thwarted my discovery into its clear cut and egregious invasions of my privacy and assaults on my mind.
6) The organization has demonstrated continually throughout the litigation of this case that truth, which must have some relationship to legitimate discovery, is, as far as the organization is concerned, irrelevant. Attached hereto as Exhibit C is a copy of a recitation of a dream I had in March 1985. I have blacked out for this purpose, anything which could be considered offensive. Donald Randolph has, in furtherance of the organization’s goals, defined the recitation of the dream a “sickening work” demonstrating my “extremely aberrated activities.” The dream was a dream. The recitation was true, and as artistically tight as I was capable of. To the
organization, if it suits its purposes, however, dreams are reality, and truth is whatever can be twisted therefrom. The only thing “sickening” about the dream is how the organization acquired it and went about its degradation. I sent it to my friend Dan Sherman, a professional writer who had throughout 1984 encouraged me to write and who had “critiqued” some of my work. Sherman was, of course, being operated by the organization in the “Armstrong operation” (the same operation which John Peterson says never happened), and Sherman either gave the organization the “dream” he had dutifully tricked me into sending him, or the organization simply stole it from him. Attached hereto as Exhibit D is a letter from Sherman from March 1986 in which he indicates that the organization was indeed getting his mail. Since writing to me, however, Sherman has apparently again been pressured by the organization because he has again cut communication with me and gone into hiding.
Another example of organizational perversion of truth is the whole Armstrong operation. A group of individuals fearing for their lives and asking me for help to reform the organization became in organization black PR campaigns my attempt to destroy religion. Efforts by the organization to enveigle me into illegal acts became my commission of the acts. Use of my pc files as a lure to entrap and ruin me is characterized as protecting the sanctity of auditing. The organization needs no more discovery since it creates “truth” and “evidence,” as it wishes.
7) All the discovery the organization has sought can be completed in the next two. weeks. I have been answering interrogatories, in addition to all the other work I must still do, and despite the fact that none of the interrogatories cover anything which I have not already testified about, and I will complete them by November 26, 1986. The organization took my deposition on October 29 and 30 and they can have my deposition another day before trial if they want. They have made no request to set a date for the continuation of my deposition since the two days in October. The organization, just to delay the trial, should not be permitted to delay the discovery opportunities it has.
8) Although the organization is clearly not harmed if the cross-complaint goes to trial January 19, I will be if it doesn’t. Through all the operations, the lies and attacks over more than four years, the hope of going to trial has been a major stabilizing factor in keeping me going. I do not have the extra legal options which the organization does; my only opportunity to resolve this protracted, bitter and emotionally devastating war is at trial. My life has been radically altered by the organization’s acts: the threats, the assaults, the pc file perversions, the obstruction, the lies, the operations, the betrayals, the terror. The intensity has fluctuated and there were brief periods when my life moved toward normalization, but always briefly as another organization attack was never far away.
Since the July pc file culling, however, there has been no respite. The anguish I feel just about every day may be a blessing because the emotional ripple does not manifest itself in other more destructive ways. But I cannot feel that it is optimum or normal or healthy; that is, I’m under a ton of stress. I have grappled with the litigation and the extra-litigation threat in many ways. Some of them, even within the observable context of Gerald Armstrong, and even to myself, are bizarre.
Almost the whole day now, and day after day, is connected to this subject. Sometimes I feel like my body is a battleground. Outside my apartment and office, and those are just about all my destinations, I am most of the time aware of the cold evaluation of threat. I am intellectually sound enough to realize that to succeed in getting the cross-complaint to trial raises the potential for a really serious operation. The emotional ramifications which follow from that are what I deal with. That is, the alteration of the circuitry. The lessening of the threat can only be achieved, however, by going forward, even though what could happen at trial could be beyond anything I’ve yet experienced. All the operations have had the ultimate goal of stopping me from proceeding to trial. They have only succeeded in convincing me that the only way the war and the threat can end is to get to trial.
Executed this 18th day of November, 1986 at Boston, Massachusetts.
I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.
I, GERALD ARMSTRONG, hereby declare as follows:
1. I have reviewed the document copies produced by plaintiff and cross-defendant Church of Scientology of California, hereinafter referred to as the “organization,” pursuant to this Court’s orders of July 2, 1985, September 9, 1985 and December 9, 1985. The documents were not designated as to which discovery requests they were being produced under. They were received in a stack of 139 pages which I have numbered in the same order as received. They consist of 57 pages of documents from my Guardian’s Office Intelligence or B-1 files and 82 pages of “success” stories taken from my preclear (or auditing or processing) files.
2. I have personal knowledge that the organization has in its possession or control the following documents which it has not produced in the instant case but did produce for my viewing, but not for release to me, in March 1985, in the case of Christofferson v. Church of Scientology, Mission of Davis, et al, Case No. A 7704-05184, in the Circuit Court of the State of Oregon, for the County of Multnomah:
1. 14 page “time track”
2. O/W write up 4/4/72
3. $3.00 fine from Boats I/C 10/20/72
4. $250.00 promissory note 11/2/72
5. 4 page personnel survey 1/5/73
6. Orders of the Day (OOD’s) – re Non-Existence assignment 8/21/73
7. Flag Conditions Order (FCO) 2513 Committee of Evidence re visas 8/21/73
8. OOD’s re missed muster 8/25/73
9. Knowledge report from Deck Engineer 9/16/73
10. Doubt formula 10/10/73
11. Findings – Court of Ethics – FCO 2639-1 11/14/73
12. Treason Formula 11/20/73
13. Liability Formula 6/12/74
14. Flag Personnel Order (FPO) 515 Temporary Port Captain 7/7/74
15. Enemy Formula 7/13/74
16. Liability Formula 7/15/74
17. FCO 2507 Delayed Mission 8/14/73
18. FCO 2782 LRH Cramming Order 1/4/74
19. FCO 2848 Shore Ethics 1/30/74
20. FCO 2892 LRH Order 2/12/74
21. FPO 950 Warrant Officer 2/23/74
22. FPO 969 Port Captain In-Training 2/25/74
23. FPO 2926 Port Ethics 3/4/74
24. OOD’s absent study – 3/24/74
25. FCO 2972 PR Study 3/31/74
26. FCO 2972 cancelled 4/1/74
27. FCO 3024 Port Captain’s Office 5/18/74
28. Confusion Formula 7/13/74
29. Treason Formula 7/13/74
30. Liability Formula 7/15/74
31. No report report 9/26/74
32. FCO 3562 Exec Study 2/3/75
33. Liability assignment (vital info) 3/26/75
34. FCO 3793 Org Program No. 1 4/21/75
35. FCO 3813 Stale Justice 5/2/75
36. FCO 3939 Clearing stations 6/7/75
37. Note from Mary Sue Hubbard re parents 7/11/75
38. Note Ron Anderson to Mary Sue Hubbard 7/13/75
39. 11 pages of data for CSW to join Guardian’s Office (GO) 9/12/75
40. Dispatch to GO BRII Dir. re Mother 9/16/75
41. Non-disclosure bond 9/22/75
42. Letter to Fosdick from Andrew Armstrong 10/6/75
43. Letter to Fosdick from P.J. Armstrong 10/75
44. 12 page Compliance report re Mother 11/19/75
45. Bond re UCE 12-75
46. FCO 4517 RPF Assignment 7/1/76
47. 12 page Basic auditing checksheet 7/28/76
48. 15 page metering course checksheet 7/30/76
49. Declaration re RPF 7/28/76
50. $750.00 promissory note 7/28/76
51. 3 page Rudiments Course checksheet 8/20/76
52. Executive Directive 81 Area Estates (ED AE) RPF Bosun 10/10/76
53. Ethics Order (EO) 24 AE Additional RPF duty 10/17/76
54. PRF Personnel Order – supply officer 8/28/76
55. Undated RPF Treason formula
56. 3 page First Dynamic Danger Formula 12/7/76
57. Dispatch re Curacao Consulate 2/2/77
58. 3 page Liability Formula 2/12/77
59. Dispatch re Moosejaw, Saskatchewan arrest 3/8/77
60. Dispatch re Chilliwock, B.C. arrest 3/8/77
62. FCO 4901 Comm Ev. 8/22/77
63. FCO 4906 Findings and Recommendations 8/30/77
64. Note – Parents caused trouble
65. PTS check 9/2/77
66. Larry Price recommendation 11/30/77
67. Attestation stats in normal in PRF 11/30/77
68. David Mayo Commendation 11/30/77
69. Senior C/S report 11/30/77
70. 3 page Letter Tonja Burden to L. Ron Hubbard 12/77
71. 2 page report from Tonja Burden on her father 12/77
72. 5 page report from Terri Armstrong re Tonja Burden 12/15/77
73. Order from Assistant Guardian SU re G. Armstrong 12/20/77
74. Answer from Hubbard re petition from G. Armstrong 3/28/78
75. Report from Clarisse Barnett re G. Armstong 3/28/78
76. 5 page summary of Jamaica debrief 4/13/78
77. Treason Formula 9/27/78
78. Enemy Formula 9/27/78
79. Liability Formula 9/27/78
80. RPF Hat checksheet 9/29/78
81. RPF Basic Hat checksheet 10/1/78
82. Solo Auditor checksheets 10/1/78
83. Conditions Order 384 WHQ RPF 12/19/78
84. Doubt Formula 12/22/78
85. Conditions Order 288-3 re Posting 4/3/79
86. R Renovations statistics 12/8/79
87. Request chit withdrawal 12/9/79
88. Refusal to withdraw chit 12/9/79
89. Petition to Hubbard 1/8/80
90. CSW from Laurel Sullivan re G. Armstrong 1/18/80
91. Non-existence (NE) formula 2/3/80
92. NE Formula to Mary Sue Hubbard 2/5/80
93. Hubbard’s answer to NE 2/8/80
94. 7 pages of OCA, Leadership, IQ, aptitude test results 2/9/80
95. Mary Sue Hubbard answer to NE 2/11/80
96. 5 page GO interview re Tonja Burden 3/25/80
97. 2 pages re biography project 5/80
98. Dispatch to Leo Johnson re Martin Leslie 9/2/80
99. 2 page report re off-policy actions in the RPF 10/16/80
100. 6 page CSC “covenant” 1/20/81
101. GO interview re UCE 6/2/81
102. 11 page report to Sue re biographical sketches 6/18/81
103. 2 page letter from Jocelyn Armstrong to Holli Carlson re parents 7/6/81
104. 5 page report from Jocelyn re parents 7/6/81
105. Report from Gary Reisdorf re G. Armstrong 8/14/81
106. Report from HCO Chief Product Development Org International (PDOI) re G. Armstrong 8/17/81
107. 16 page critique of Research & Discovery biography 9/1/81
108. 4 page report to Sue Anderson re pack 10/18/81
109. 4 page biography debug project 10/30/81
110. 2 page report re Nibs 11/9/81
111. Dispatch from Lois to Donna re biography 11/9/81
112. 4 page report to Donna re biography 11/10/81
113. 17 page report Donna to Lois including G. Armstrong’s report 11/14/81
114. Report from Don Johnson re G. Armstrong 12/13/81
115. Report Don Jonson to Terri Gamboa re G. Armstrong 12/14/81
116. Report from Vaughan Young re G. & J. Armstrong 12/15/81
117. 6 page report from V. Young re G. & J. Armstrong 12/15/81
118. Report from Marcus Swanson re G. & J. Armstrong 12/21/81
119. Dispatch to Don Johnson re G. Armsrtrong 12/30/81
120. Dispatch Don Johnson to Barbara DeCelle 1/2/82
121. Report Don Johnson to Ciruss Slevin 1/2/82
122. Report Barbara DeCelle to Don Johnson 1/2/82
123. Report V. Young to B. DeCelle
124. Report from Jeannine Boyd re G. Armstrong 1/12/82
125. 4 page report from V. Young on meeting with G. Armstrong 1/17/82
126. Same 4 page report to the case supervisor (C/S) 1/17/82
127. Report from Brad Ballentine re Brown family 1/20/82
128. 4 page report to Roberto of interviews re D. Brown 1/20/82
129. 3 page letter from D. Brown to H. Carlson 1/20/82
130. 2 page report from Peeter Alvet of interview of Marilyn Brewer 1/21/82
131. 2 page report from Brad Ballentine of interview of Laurel Sillivan 2/12/82
132. Report from V. Young on what G. Armstrong knows 2/12/82
133. Report from DGIUS (Donna) to DG US re G. Armstrong 2/12/82
134. “Summary” re G. Armstrong
135. Part of “analysis” (of 1982)
136. “Gerry Armstrong Project” 2/17/82
137. Report from H. Carlson to Senior C/S 2/20/82
138. Dispatch from Snr. C/S to H. Carlson 2/21/82
139. Report from B. Ballentine to Roberto re G. Armstrong’s files 2/22/82
140. Telex to SU from AGI GLA 2/23/82
141. B. Ballentine daily report (DR) re G. Armstrong 2/24/82
142. 4 page report from Branch I Director Flag GO Intelligence re H. Carlson and G. Armstrong 2/25/82
143. 9 page delcaration of Terri Gamboa re Tonja Burden 2/25/82
144. AGI GLA DR re G. Armstrong 2/26/82
145. B. Ballentine interview of B. DeCelle 3/1/82
146. DR re G. Armstrong
147. DR re G. Armstrong (folders) 3/4/82
148. DR re G. Armstrong 3/5/82
149. DR re G. Armstrong 3/8/82
150. Physical description of G. Armstrong
151. DR re G. Armstrong 3/10/82
152. DR re G. Armstrong surveillance
153. DR re G. Armstrong stakeout 3/11/82
154. DR re G. Armstrong stakeout 3/12/82
155. DR re G. Armstrong stakeout 3/15/82
156. DR Guardian Activities Scientologist (GAS) called B. Ballentine 3/16/82
157. DR re G. Armstrong 3/17/82
158. DR re G. Armstrong and Alan Walter 3/18/82
159. DR re G. Armstrong to Dick Sullivan 4/1/82
160. Letter from Dick Sullivan to G. Armstrong 4/12/82
161. 4 pages re Burden deposition in Paulette Cooper case 4/82
162. HCO Policy Letter “Field Auditor Fees” 4/29/82
163. 4 page declaration by T. Gamboa 5/21/82
164. 3 page report re meeting with Kohlweck 5/26/82
165. 2 page “confidential” report re Nibs 6/1/82
166. Note G. Armstrong C/O John Compton
167. Report from AGI GLA re “Flynn Forum” 5/31/82
168. Report from DGI US re G. Armstrong being served 6/2/82
169. Description of G. Armstrong and address
170. 2 page report from B. Ballentine re “disaffecteds” 6/12/82
171. 3 page comparison of G. Armstrong Burden affidavits
172. 3 page analysis of G. Armstrong Burden affidavit of 6/25/82
173. 12 pages copy of article from “Look” Dec. 1950
174. 2 pages re G. Armstrong’s accusations against “Church”
175. Subpoena for Omar Garrison 8/31/82
176. 13 page affidavit from Ford Schwartz
177. 3 page J. Armstrong time track 8/16/82
178. 8 pages notes from G. Armstrong deposition
179. 4 page GO report re Walt Logan, etc. 8/29/82
180. Page 2 of report from Kathy, DG PR US
181. “Clearwater Sun” article re Nibs Hubbard 11/14/82
182. CIC X-file list re M. Parsons
183. 11 page report from Theresa Parsons 12/27/82
184. 2 page report from V. Young re “Time” and G. Armstrong 1/14/83
185. 12 pages G. Armstrong deposition excerpts
186. 3 pages “New York Times” article 1/6/83
187. “Time” article 1/31/83
188. 5 page “debrief” of T. Gamboa re G. Armstrong 3/12/84
189. 10 page G. Armstrong declaration for FBI 9/6/84
190. “St Petersburg Times” article 4/20/84
3. What the organization produced as my B-1 file in the Christofferson case was in fact only a portion of the actual file. On April 4, 1985, I testified about what items I could determine with certainty were missing from what was produced. My testimony and statements of counsel on that date are attached hereto as Exhibit A.1 At page 4069, defense attorney, Harry Manion, described the compilation of the B-1 time track:
“MR. MANION: All the documents referenced in the time track: They are collected throughout the organization in Ethics files, in Knowledge Reports, in Flag Orders. The man was in the organization, according to his own testimony, for eleven years. Hundreds and hundreds of documents and other sources, talking to people, were used to compile the time track.
At page 4070, the Court ordered the production of all documents omitted from my B-1 files, including all documents up to date; i.e., April 4, 1985, and attorneys for defendant organization (the same organization as plaintiff and cross-defendant in the instant case) agreed to produce all such documents.
These documents, however, were never produced. They include up to April 1985 at least the following:
1. The documents from which the entries on the 14 page “time track” were excerpted or on which the entries were based.
2. The documents from my “ethics” and “personnel” files.
3. The records and documents concerning my incarceration in the US GO Intelligence Bureau in Fifield Manor in June 1976.
4. The interview of me done by GO Intelligence official, Brian Roubinek, in July/August 1976 in Clearwater, Florida.
5. The Compliance reports or progress reports to each of the targets of the “Gerry Armstrong Project” of February 17, 1982, attached hereto as Exhibit B.2
6. The statements, notes, names, dates, incidents, connections, data or other information culled from my pc (or preclear, or auditing, or processing) files.
7. The documents, materials or information on which the report of September 30, 1982 re Dead Agenting Gerry Armstrong is based.
8. The orders or correspondence to the private investigators who surveilled my wife, Jocelyn, and me beginning in May 1982, and who assaulted me, ran into me, attempted to involve Jocelyn and me in freeway accidents, and who followed and harassed us through September 1982. Also the daily PI reports from each day of this period.
9. The orders, reports, materials, briefings, and documents concerning a visit and subsequent telephone calls to me by Mark Rathbun in February through April 1984. Rathbun stated to me that the organization had done an “eval” regarding me, so this would include the eval, all accompanying “data,” documents and the
resultant “program.” An “eval,” or evaluation, is a mimeographed issue type, only approved with supporting documentation.
10. The mission, project or program orders pursuant to which Terri Gamboa met with me on March 8, 1984, and subsequently wrote her “debrief” of March 12, 1984 attached hereto as Exhibit C.3 There could not be “debrief” without there being a “briefing” on orders.
11. The orders, reports, correspondence and documents concerning surveillance and harassment by organization agents in London in June 1984. A copy of a declaration I wrote on July 1, 1984 concerning the surveillance and harassment is attached hereto as Exhibit D.4
12. The orders, reports, correspondence and documents relating to the operation in June 1984 to use my pc folders to lure me into a trap. This operation was acknowledged by the two organization agents, Mike Rinder and “Joey” in the videotapes illegally taken of me in November 1984.
13. The orders, reports, correspondence, and documents relating to OSA INT Executive Directive 19, of September 20, 1984, a copy of which is attached hereto as Exhibit E.5 OSA or Office of Special Affairs is the new name given to the Guardian’s Office. Its functions are the same.
14. The orders, reports and documents concerning the photographing of me by organization members on November 8, 1984 in Los Angeles, including the
15. The orders, reports, correspondence, materials and documents concerning the burglarizing of the trunk of my car on November 8, 1984, and the theft therefrom of a manuscript and artwork of approximately 350 pages, and various documents relating to this litigation. This includes the stolen materials themselves.
16. The copies made by organization agents known to me as “Joey” and “Rena” of my writings and drawings which she requested as a potential publisher, and which I loaned to her on November 9, 1984. These consisted of approximately 250 pages of personal creative works which were copied without my knowledge, and the copies of which were kept by the organization.
17. The records, reports, orders, correspondence, documents and audio and video recordings of a meeting, arranged by organization agents posing as “reformers,” between an attorney Thomas Janeway and me in November 1984 in Encino, California. Janeway pretended to be working for these “reformers” and attempted to entrap and compromise me.
18. The records, reports, correspondence, orders, documents or materials relating to the obtaining of false authorizations “directing” the videotaping and wiretapping of my attorney, Michael Flynn and me, in November and December 1984. Three of these phony authorizations are attached hereto as Exhibit F6
19. The records, reports, correspondence, orders, audio
and video recording, documents or materials relating to an attempt by organization agents to get me to fly to Las Vegas, Nevada in the fall of 1984 to meet with a proposed “backer” of their intended litigation to “reform” the organization.
20. The correspondence, reports, statements, documents or materials supplied to or received from the Los Angeles Police Department, or any officer thereof, in 1982 through 1984 in various attempts to have criminal charges brought against me in connection with the Hubbard archives (or “Armstrong documents.”) It is known that the organization corresponded at least with one officer, S.J. Capuano in the N.E. Detective Division in this effort to have me arrested.
21. The orders, reports, projects, programs, briefings and debriefings, audio and video recordings, and all related documents and materials concerning what the organization calls the “Armstrong operation.” This operation, which in fact began right after I left the organization, involved the use of a friend, Dan Sherman, to get close to me, feed me false information, compromise me and frame me, with the goals of destroying my reputation, my ability to testify in Scientology litigation, my emotional and physical well-being, my economic base, my marriage and my life. On page 2 of the February 17, 1982 “Gerry Armstrong Project,” Exhibit B, is the statement:
“Step 15) Persue (sic) the potential existing line
that might be available to us via a trusted GAS who is a writer and who is respected by Gerry. This would require some reach from Gerry, though, as he might be suspicious if this GAS made a big reach for him.”Dan Sherman is the “trusted GAS.” GAS stands for Guardian Activities Scientologist, a covert operative of the GO not formally posted on staff. The “Armstrong Operation” became known to me in April 1985, when the organization attorneys announced that meetings I had had with two individuals, “Joey,” and Mike Rinder, as arranged by Sherman, had been secretly videotaped. Sherman, Joey and Rinder represented themselves as part of a group seeking to reform the organization and have it cease its tortious and criminal activities, such as the actions taken against me. Attorneys John G. Peterson and Earle C. Cooley stated in Christofferson that there were no written documents of any kind regarding this operation. Their statements to the Court in that regard on April 11, 1985 are attached hereto as Exhibit G.7 Their statements must, however, be regarded, given the magnitude of the operation, the expense, the number of people involved, and the modus operandi and policies of the organization regarding working only off of written programs and orders and complying in writing to all orders, as perjurious. There are thousands if not tens of thousands of pages of documents not produced: daily reports, weekly reports, battle plans, statistic reports, PI reports, CSW’s, projects, programs, evals, targets,
compliance reports, orders, nudges, debugs, requests for funds, budgets (FP’s), accounting reports, cross file sheets, exception sheets, computer data and files, briefings, debriefings, drillings, video recordings, audio recordings, wiretap recordings, etc. These orders, reports, documents and recordings involved at least:
Eugene M. Ingram
Peterson’s statement on April 11, 1985, at page 4692 of Exhibit that the videotaping of me “was done by the Toronto attorney (Clayton Ruby) and a private investigator (Eugene M. Ingram), not me, not the Church,” is also perjurious. Dan Sherman was an organization GAS member, and Rinder and Joey, the two individuals who were bodywired, who set me up, and who appeared in the video, were organization members. Peterson’s duplicity is also
shown in his declaration dated April 17, 1985, filed in this case and several other cases around the country and attached hereto as Exhibit H.8 Although on April 11, before the Oregon Court Peterson professed no knowledge of the “Armstrong Operation” and no “Church” involvement, in his declaration he claimed to have “personal knowledge” and stated that (at Par. 5) “Joey and the Loyalists ( the group claiming to be reformers) were created only after the Church learned of Armstrong and Flynn’s desire to get an inside source within the Church.” (Emphasis added)
22. The orders, reports, compliances, briefings, documents, audio and video recordings, photographs and the materials relating to the forgery and attempted cashing of a $2,000,000 check on the Bank of New England account of L. Ron Hubbard in 1982, and the operation to frame Michael Flynn and me with the crime. Sherman and the “Loyalists” stated to me, in order to draw me into the “Armstrong Operation,” that it was their intention to, and they stated they could, prove that Flynn was innocent and the organization was knowingly framing him. They went so far, in order to demonstrate to me their intent to help prove Flynn’s innocence, as to provide me with a document, a handwritten copy of which is attached hereto as Exhibit I9, to be passed to the authorities investigating the check scam. In his “Declaration in Opposition to Motion for Attorneys’ Fees” dated July 30, 1984 and filed in this case, John Peterson claimed that
Michael Flynn was guilty of the forgery and the attempt to cash the forged check, and he attached an affidavit by one Ala Fadili Al Tamimi in support of his claim.10 Later evidence revealed that the organization paid Tamimi $25,000 for the affidavit. And further evidence has revealed that the organization knew in early 1984 that Flynn had nothing to do with the check scam that the Tamimi affidavit was false, yet it continued, through its attorneys, the operation to frame him. The PI behind the frame-up is Eugene M. Ingram11, the same person who illegally videotaped me. In his “testimony” before the Los Angeles Police Department Board of Rights, regarding Philip Rodriquez’ unlawful and false authorization of the videotaping and wiretapping of Michael Flynn and myself, Earle C. Cooley also accused me of involvement in the Hubbard check forgery. Cooley’s testimony is attached hereto as Exhibit J12. At pp. 177, 178, Cooley states:
“I think the proof of this pudding is in the eating, on the tapes and on the transcripts. The crimes were as represented. If you look at the letter of authorization signed by officer Rodriguez, it seems to me that every one of those crimes was uncovered, and that its investigation, if you will allow me, ought to be focused on the criminals, who are the ones who have brought about this hearing through a complaint on the part of Michael Flynn who himself is being investigated by a grand jury, the federal grand jury in the city of Boston right now, as well as Mr. Armstrong and others
that were involved in the two million dollar check forgery which is talked about on those tapes and is part of the coverup that is attempted by phony documents being planted in the files of the Church.”(Emphasis added)
There are thousands, if not tens or hundreds of thousands, of documents relating to the Hubbard check forgery, the purchased perjured testimony and the attempts to frame my attorney Michael Flynn and me with the “crime.” These include at least: daily reports, weekly reports, battle plans, battle plan reports, statistic reports, PI reports on a daily basis from at least 1982 to the present, CSW’s, mission orders, projects, programs, evals, targets, estimates, compliance reports, progress reports, orders, nudges, debugs, requests for funds, budgets (FP’s), accounting reports, cross file sheets, excerption sheets, computer data and files, briefings, drillings, debriefings, audio and video recordings, wiretape recording, etc. These orders, reports, correspondence, documents and recordings involve at least:
Eugene M. Ingram
Earle C. Cooley
Ala Fadili Al Tamimi
L. Ron Hubbard
Akil Abdul Amiar Al Fadili Al Tamimi
All the documents could be cross-filed under various headings or names or code names.
23. The correspondence, orders, reports, statements, documents photographs, or materials relating to the “Freedom” tabloid issue 61, published in August 1984, a reduced copy of which is attached as Exhibit K.13
24. The correspondence, orders, reports, statements, documents photographs or materials relating to the article entitled “Ex-U.S. Attorney’s Role in Check Forgery Surfacas in Boston Court” in the “Freedom” tabloid issue 62, published in October 1984, a reduced copy of which is attached hereto as Exhibit L.14
4. Following my testifying in Christofferson, the organization continued its attack on me with numerous other operations to discredit, harass and intimidate me, and destroy my life. There are thousands of pages of documents as yet not produced, concerning the incidents and acts as follows:
1. The correspondence, orders, reports, statements, photographs, documents or materials relating to the “Freedom” tabloid published in April/May 1985, a reduced copy of which is attached hereto as Exhibit M.15
2. The correspondence, orders, reports, statements, photographs, documents or materials relating to the “Freedom” tabloid published in May 1985, a reduced copy of which is attached hereto as Exhibit N16.
3. The correspondence, orders, reports, statements, documents or materials relating to the “advertisement” attached hereto as Exhibit O 17 which appeared in “The Oregonian” newspaper of May 30, 1985, in Portland, Oregon, particularly with regard to the statement:
“Another one of Christofferson’s key witnesses, Gerry Armstrong, a government informant, was indisputably shown to have engaged in an operation to infiltrate the Church of Scientology. Armstrong’s plot, based on evidence submitted in court, appears to have been conceived with the advice and consent of Flynn and members of the IRS Intelligence Branch. It indicated the planting of forged documents in the church which could then be “discovered” by government agents in planned raids on church premises. The forged documents
would incriminate the church in nonexistent illegal activities and would serve as a basis for the indictment of current church management.”
4. The correspondence, orders, reports, statements, documents or materials relating to the organization’s radio show “Freedom Magazine” on station WTTP in Boston on June 11, 1985, a transcript of which is attached hereto as Exhibit P.18
5. The correspondence, orders, reports, statements, documents, payments, receipts or materials delivered to or received from L. Fletcher Prouty relating to G. Armstrong. Prouty has signed a number of false declarations concerning me in relation to the videotapes since April 1985.
6. All edited versions of the videotapes which had originally been made of me in November 1984. Attached hereto as Exhibit Q is a flyer distributed to Scientologists in April and May 1985 directing them to a showing of an edited version of the tapes.19 Also, Earle Cooley, during his testimony before the LAPD Board of Rights showed an edited version of the videotapes. (See Exhibit J, pp. 156-174.) Also, edited versions were shown to various members of the media, including at least the CBC, CBS, the “Sacramento Bee.” An edited version was also used by organization personnel as a promotional device, showing members the version, misinterpreting its content and significance and requesting from these members $2,000.00 each. The projected target was 25,000
people “regged” for $2,000.00, or a total of $50,000,000.00 on the basis of these illegal videotapes of me.
7. The correspondence, orders, reports, statements, documents or materials, relating to the editing of the videotapes, including the editing which occurred prior to the Christofferson trial, plus the audio section edited out of the videotapes.
8. The correspondence, orders, reports, statements, documents or materials relating to the delivering of edited versions of the videotapes to any members of the media.
9. The correspondence, orders, reports, statements documents or materials relating to me sent to any media including newspapers, television and radio.
10. The correspondence, orders, reports, statements, documents or materials, relating to the showing of the videotapes or edited versions thereof to staff or public Scientologists, including any briefings given, requests for “donations” or funds, any projects, programs or evals related to this operation and any financial records of said operation.
11. The correspondence, statements, documents or materials supplied to or received from the Los Angeles District Attorney’s office in 1985 or 1986 in an attempt to have criminal charges brought against me in connection with the videotaping of me by the organization. At page 167 of Earle Cooley’s testimony at the Board of Rights on
October 4, 1985, (Exhibit J), he states: “charges have been filed with the District Attorney of this County” and at page 168 that “there were two submissions to him (the DA), an initial submisssion and he called for additional materials, and additional materials went to him last week.”
12. The correspondence, orders, reports, statements, documents or materials relating to the photographing of my residence in Boston, Massachusetts on October 7, 1985, including all photographs created.
13. The correspondence, orders, reports, statements, documents or materials relating to the mugging and robbery of me outside my residence in Boston on October 25, 1985.
14. The correspondence, reports, statements, documents or materials supplied to or received from the Federal Bureau of Investigation in 1985 or 1986 in an attempt by the organization to have criminal charges brought against me in connection with an incident allegedly occurring on October 13, 1985, in Boston, Massachusetts. Attached hereto as Exhibit R is a declaration I wrote immediately following being interviewed by an FBI agent regarding this attempt to frame me.20
15. The correspondence, reports, statements, documents or materials concerning the operation to bring false criminal charges against me via the FBI as described in 13 above.
16. The correspondence, orders, reports, statements,
documents or materials relating to the “Freedom” tabloid published in February 1986, a reduced copy of which is attached hereto as Exhibit S.21
17. The correspondence, orders, reports, statements, documents or materials relating to the operation to have several hundred copies of the “Freedom” tabloid (Exhibit S) planted in the building where I work on February 11, 1986 during my deposition in the case of Burden v. Church of Scientology.
18. The correspondence, orders, mission orders, reports, telexes, statements, documents or materials relating to an operation or mission in February and March 1986 involving organziation agent, Meryl Dubay, the purpose of which was to “Black PR” me among plaintiffs and witnesses in various cases against the organization.
19. The correspondence, orders, reports, statements, documents or materials, relating to the photographing of my residence on March 21, 1986.
20. The correspondence, orders, reports, statements, documents or materials regarding me delivered to the Internal Revenue Service in 1985 or 1986.
I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this 9th day of April, 1986 at Boston, Massachusetts.
- Exhibit A: Testimony of Gerald D. Armstrong. ↩
- Exhibit B: Gerry Armstrong Project. ↩
- Exhibit C: Gamboa Debrief. ↩
- Exhibit D: Declaration of Gerald Armstrong ↩
- Exhibit E: OSA Int 19 Squirrels ↩
- Exhibit F: Rodriguez authorizations. Related: Philip Rodriguez. ↩
- Exhibit G: Excerpt of Proceedings (April 11, 1985) ↩
- Exhibit H: Declaration of John G. Peterson ↩
- Exhibit I: ↩
- See Declaration of John G. Peterson (July 30, 1984) ↩
- See Eugene M. Ingram ↩
- Excerpt of Proceedings: Rodriguez Deposition ↩
- Exhibit K: Freedom Issue 61 ↩
- Exhibit L: Freedom Issue 62 ↩
- Exhibit M: Freedom April/May 1985 ↩
- Exhibit N: Freedom May 1985 ↩
- Exhibit O: The Oregonian (May 30, 1985) ↩
- Exhibit P: Transcript of WTTP Radio “Freedom Magazine.” ↩
- Exhibit Q: IAS Flyer ↩
- Exhibit R: Declaration of Gerry Armstrong (October 23, 1985) ↩
- Exhibit S: Freedom (February 1986) ↩