The opinion of the court was delivered by: RICHEY
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 Wolfe
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 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."
II. COUNT ONE OF THE INDICTMENT IS NOT DUPLICITOUS; IT PROPERLY ALLEGES A SINGLE CONSPIRACY.
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 three conspiracies as described by the defendants. Accordingly, there is a sufficient stake by each defendant in the entire venture or conspiracy.
Therefore, the Court finds that there is a linkage between the separate objectives of Count One, and it properly alleges a single conspiracy. Thus, the motion of the defendants to dismiss the first count of the indictment is denied.
III. THE FEDERAL STATUTE PROSCRIBING THE INTERCEPTION OF ORAL COMMUNICATIONS MUST BE READ TO REQUIRE A FEDERAL NEXUS IN ORDER TO PASS CONSTITUTIONAL MUSTER, AND SUCH A NEXUS IS PRESENTED IN THIS CASE.
The defendants have moved to dismiss Count Two of the indictment which charges a violation of section 2511(1)(a) of Title 18 U.S.C., the federal provision prohibiting eavesdropping. The defendants move to dismiss on the ground that the statute exceeds the bounds of Congressional authority to legislate.
The Constitution has explicit protections against excessive concentration of power in the federal government. Power is allocated among the federal government and the states by specifying those powers the Congress might exercise and by emphasizing in the tenth amendment that undelegated powers were reserved to the states or respectively to the people. Accordingly, Congress has authority to act only with respect to the powers specified in the Constitution. See G. Gunther, Constitutional Law 81 (1975).
Section 2511(1)(b)(i-iv) was enacted by the Congress in accordance with its power over interstate commerce. In enacting section 2511(1)(a) the Congress was not at all clear where they derived the power to prohibit "any person . . . to intercept . . . any . . . oral communication." In fact, Congress expressed doubt over its authority to legislate in such a broad fashion. The Senate Report accompanying Title III of the Omnibus Crime Control and Safe Street Act of 1968, in which this section was enacted, states:
The broad prohibition of subparagraph (2511(1)) (a) is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the case of interception of wire communications.
Sen.Rep.No.90-1097, 90th Cong., 2d Sess., Reprinted in 1968 U.S.Code Cong. & Admin.News at 2180-81.
The defendants contend that section 2511(1)(a) exceeds the authority of Congress to legislate, and that Congress has made no attempt to tie this section to an enumerated power of Congress. However, one court has given this section a judicial gloss in order to save its constitutionality. In United States v. Burroughs, 564 F.2d 1111 (4th Cir. 1977), two management employees of J. P. Stevens Company were indicted for intercepting oral communications of union organizers. Id. at 1113. The jury returned a verdict of guilty, but the court granted the defendants' motion for a judgment of acquittal because the government had failed to provide the necessary evidence of a federal nexus. Id. The U.S. Court of Appeals for the Fourth Circuit upheld the district court's result, and held that "because subsection (1)(a) does not specify any particular basis for jurisdiction, we are of the opinion that proof of any rational basis would be adequate." Id. at 1115. Thus, the Burroughs decision, relied upon by the government in this case, merely requires that "Some basis for federal jurisdiction be established at trial." Id. (emphasis in original).
The defendants strongly urge this Court not to follow the Burroughs case. According to the defendants, where statutory language and legislative intent is clear, courts will not construe a criminal statute so as to limit its natural scope only to those cases which would be within Congress' power. Citing Aptheker v. Secretary of State, 378 U.S. 500, 515-16, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964); Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S. Ct. 619, 70 L. Ed. 1059 (1925); James v. Bowman, 190 U.S. 127, 23 S. Ct. 678, 47 L. Ed. 979 (1902); United States v. Steffens, 100 U.S. 82, 98-99, 25 L. Ed. 550 (1879); United States v. Reese, 92 U.S. 214, 23 L. Ed. 563 (1875).
The defendants and the government agree that a court can construe a statute to avoid a constitutional difficulty if such a construction is "fairly possible." See Swain v. Pressley, 430 U.S. 372, 378 n. 11, 97 S. Ct. 1224, 51 L. Ed. 2d 411 (1977) Quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 76 L. Ed. 598 (1966). However, the parties disagree whether this statute is susceptible to a limiting construction.
In making this determination, the Court is aware that the defendants have raised a very serious challenge to the facial validity of this statute. However, two other courts have upheld its validity, See United States v. Burroughs, 564 F.2d 1111 (4th Cir. 1977); United States v. Perkins, 383 F. Supp. 922 (N.D.Ohio 1974) (holding that there is a constitutional basis for the action of Congress in enacting section 2511(1)(a) to protect the right of privacy from incursions by private individuals). Moreover, the defendants concede that the actions alleged in the indictment constitute crimes at the common law; thus, a judicial modification of the statute will not create any notice problems to the defendants.
The Grand Jury has anticipated the Burroughs problem and has alleged a federal nexus in the indictment. The indictment charges that the defendants intercepted oral communications made during a meeting of agents and employees of the Internal Revenue Service of the United States Department of the Treasury, held at the IRS headquarters in the District of Columbia. Accordingly, the Motion of the defendants to dismiss Count Two is denied.
IV. COUNT TWENTY-THREE OF THE INDICTMENT PROPERLY INCLUDES THE OBSTRUCTION OF A CRIMINAL INVESTIGATION AS AN OBJECTIVE OF THE CONSPIRACY.
The defendants move to dismiss a portion of Count Twenty-three of the indictment, which charges a conspiracy in violation of 18 U.S.C. § 371. The indictment specifies four objects of the Count 23 conspiracy: (1) to obstruct justice in violation of 18 U.S.C. § 1503; (2) to obstruct a criminal investigation in violation of 18 U.S.C. § 1510; (3) to harbor and conceal a fugitive from arrest in violation of 18 U.S.C. § 1071; and (4) to make false declarations in violation of 18 U.S.C. § 1623. The defendants wish to have stricken the portion of Count Twenty-three which alleges as an objective of the conspiracy violations of section 1510 to obstruct a criminal investigation.
Section 1510 was enacted to deter coercion of potential witnesses and has been interpreted to exclude coercion of accomplices from its coverage. See United States v. Cameron, 460 F.2d 1394, 1401-1402 (5th Cir. 1972). The rationale is that this section was enacted to protect a witness against intimidation or coercion by a third party who is attempting to prevent the witness from supplying or communicating information to a federal investigator. House Report No. 90-658, 1967 U.S.Code Cong. & Admin.News at 1762. According to the defendants, an accomplice or co-conspirator, may be punished under other sections such as obstruction of justice, but not under section 1510, if he has merely imposed silence on an accomplice.
The government contends that the allegations of Count Twenty-three plainly make out a violation of section 1510 as an object of the conspiracy. According to the government, the "accomplice" rule is not applicable to this case because the unindicted co-conspirator, Michael Meisner, at one point withdrew from the conspiracy, and it was not until his withdrawal that the conspirators agreed to obstruct a criminal investigation in violation of section 1510. Thus, the unindicted co-conspirator became a victim of the section 1510 objective when he was no longer an accomplice.
The defendants reject the plausibility of this analysis in their reply to the government's opposition, and further contend that the indictment fails to allege that the unindicted co-conspirator ever withdrew from the conspiracy. Thus, according to the defendants, the government is improperly attempting to amend the indictment, or has improperly joined more than a single conspiracy in one count.
In addition, in the context of a co-conspirator who has resigned from the conspiracy, there can be no such "accomplice" rule. The rationale behind section 1510 completely supports its use in such a situation. When an organized group attempts to prevent one of its members from withdrawing from a conspiracy, surrendering to federal investigators, and detailing the criminal offenses committed by the other members of the group, plainly a violation of section 1510 is made out. See H.Rep.No.98-658, 1967 U.S.Code Cong. & Admin.News at 1762; United States v. Cameron, 460 F.2d at 1402 ("There is no hint in the proof of force, threats, intimidation and perhaps none of misrepresentation.").
Furthermore, the indictment clearly is precise enough to allege violations of section 1510 as an objective of the Count Twenty-three conspiracy. See United States v. Lippman, 492 F.2d 314, 317 (6th Cir. 1974), Cert. denied, 419 U.S. 1107, 95 S. Ct. 779, 42 L. Ed. 2d 803 (1975). The Court rejects the defendants' contention that the indictment must specifically allege that the unindicted co-conspirator withdrew from the conspiracy prior to the section 1510 objectives. If the indictment makes out a claim that violations of section 1510 were an objective of the conspiracy, the Court is unable to fathom any reason why the indictment must specifically allege facts which remove the possibility that the so-called "accomplice" rule can be invoked by the defendants. The indictment need not anticipate every possible defense the defendants might raise in order to survive a motion to dismiss. Moreover, a reading of the indictment in this case makes clear that the unindicted co-conspirator did at one point attempt to withdraw from the conspiracy. The fact that this information is alleged in the overt acts rather than the charging paragraph is not significant because the absence of the "accomplice" defense is not an essential element of the crime charged conspiracy under section 371.
Finally, the defendants contend that the agreement to victimize the unindicted co-conspirator in violation of section 1510 is only alleged against certain defendants, thus it is wholly separate and cannot be prosecuted along with the other agreement under Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). The Court finds no merit in this contention. The scope of the conspiracy is determined by the scope of the agreement between the conspirators. Since the agreement is seldom visible, inferences must be made according to the stake of the conspirators in the venture and the relations of the parties to the separate activities. In this count, there is a substantial overlap between the parties involved in each separate action, and the separate objectives each are consistent with and support the overall objective; thus, the conspirators each had a similar stake in the success of the several objectives. Therefore, the appropriate inference is that one agreement was made, and each objective was merely a means to achieve the purposes of the overall agreement. See pages 71 and 72 Supra.
Accordingly, the motion of the defendants to dismiss portions of Count Twenty-three relating to offenses under 18 U.S.C. § 1510 is denied.
V. COUNT TWENTY-FOUR OF THE INDICTMENT PROPERLY CHARGES OBSTRUCTION OF JUSTICE BY CONCOCTING FALSE TESTIMONY FOR AN INVESTIGATION CARRIED OUT IN CONJUNCTION WITH A GRAND JURY PROCEEDING.
Count Twenty-four of the indictment charges eight of the defendants with obstructing justice in violation of 18 U.S.C. § 1503. In pertinent part, section 1503 provides criminal penalties for:
Who(m)ever corruptly, or by threat or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States . . . or any grand jury . . . or officer in or of any court of the United States . . . or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice . . . .
The defendants contend that there are two defects in Count Twenty-four: (1) Count Twenty-four charges no more than the preparation of false testimony, and this alone is insufficient to constitute a violation of section 1503; and (2) there is no charge of interfering with a judicial proceeding as required by section 1503.
According to the defendants, the preparation of false testimony cannot in isolation be construed to be an obstruction of justice. The defendants candidly point out that some courts have held that false statements alone can support a conviction under section 1503. See United States v. Partin, 552 F.2d 621, 630-31 (5th Cir.) Cert. denied, 434 U.S. 903, 98 S. Ct. 298, 54 L. Ed. 2d 189 (1977); United States v. Cohn, 452 F.2d 881, 883-84 (2d Cir. 1971), Cert. denied, 405 U.S. 975, 92 S. Ct. 1196, 31 L. Ed. 2d 249 (1972). However, the defendants contend that the better-reasoned opinions and those approved by the United States Court of Appeals for the District of Columbia hold that prosecutions for the Giving of misleading testimony is not ...