------------------------------------------------------------------- F.A.C.T.Net, Inc. (Fight Against Coercive Tactics Network, Incorporated) a non-profit computer bulletin board and electronic library 601 16th St. #C-217 Golden, Colorado 80401 USA BBS 303 530-1942 FAX 303 530-2950 Office 303 473-0111 This document is part of an electronic lending library and preservational electronic archive. F.A.C.T.Net does not sell documents, it only lends them according to the terms of your library cardholder agreement with F.A.C.T.Net, Inc. ------------------------------------------------------------------- UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA RTC, et al., Plaintiffs, ) N0. 85-711-JMI (Bx) ) 85-7197-JMI (Bx) v. ) ) ROBIN SCOTT, et al., Defendants ) & MAYO MEMORANDUM OF DECISION I. I. 17 INTRODUCTION 18 On the heels of the order dismissing plaintiffs' 19 amended complaints for discovery misconduct, defendants- ~0 counterclaimants ("defendants") have moved for an order 21 awarding them 2.9 million dollars in attorneys' fees. ~ Defendants argue that they are entitled to all fees . 2S incurred in defending the dismissed cases, citing the Lanham . ~4 Act (15 U.S.C. 11170, the copyright statute (17 U.S.C. ! Z~ 505), California contract law, and the court's inherent power to sanction bad faith conduct. =7 Plaintiffs-counterdefendants ("plaintiffs") have opposed the motion. After the motion was submitted, ~.~ .,~=.,.- plaintiffs requested that the Special Master defer ruling on the motion for attorneys' fees until after they produced the court-ordered discovery and conducted their own discovery regarding the attorneys ' fees. II. DISCUSSION A. DEFENDANTS ARE ENTITLED T0 ATTORNEYS' FEES UNDER THE LANHAM ACT Defendants have requested attorneys' fees pursuant to The Lanham Act, which authorizes the court to award such fees in "exceptional cases". ~ 15 U.S.C. ~ 1117, Courts have found an "extraordinary case" where 'the opposing party is guilty Of 'extraordln~ry, maliciou$, wanton and oppressive conduct'", Academy of Motion Picture Arts v. Creative House, 944 F.2d 1446, 1457 (9th Cir. 1991), citing Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1026 (9th Cir. 1955). Plaintiffs have abused the federal court system by using it inter, alia, to destroy their opponents, rather than to resolve an actual dispute over trademark law or any other legal matter. This constitutes 'extraordlnary~ maliclous, wanton and oppressive conduct". As such, this case qualifies as an "exceptional case" and fees should be awarded pursuant to the Lanham Act. B. DEFENDANTS ARE ENTITLED TO ATTORNEYS' FEES UNDER THE COPYRIGHT STATUTE De~endan~e have requested attorneys' fees pureuan~ ~he copyright s~atu~e, 17 U.S.C. 505. The statute reads as follows: In any civil action under this ti%le, the cour= in discretion may allow the recove~ of full costs by or against any party other than the United States or an officer thereof. Except as othe~ise prohibited by this title, the court ~y also award a reasonable a~torney's fee to the prevailing party as part of the Despite this broad language, the Ninth Cir=uit has consil~ently held that a prevailing defendant must show the plaintiffs' action was frivolous or brough~ in bad faith in order to re~over attorneys' fees. Jartech, Inc. v. Clancy, 666F.2d 403, 407 (9th Cir. 1982), cert. denied, 459 U.S. 879 reh'g denied, 459 U.S. 1-59, second reh'g denied, 463 U.S. 1237 (1983); see also, Bibbero Systems, Inc. v. Colwell, 893 F.2d 1104, 1108 (9th Cir. 1990) (reaffirming the validity of the Jartech standard and applying it to pretrial dismissals). Defendants have met their burden under the Jartech standard. Plaintiffs' complaints were not frivolous, but they were brought in bad [aith. It is abundantly clear that plaintiffs sought to harass the indivl~ual defendants and destroy the church defendants through massive over- litiga=ion and other highly questionable li~ig.tion tactics. The Special Master has never $een a more glaring ex~ple of bad faith litigation than this. Therefore, it i~ appropriate to award attorneys' fees pursuant to the copyright statute. C. THE COURT WILL NOT AWARD ATTORNEYS' FEES BASED ON CALIFORNIA STAUTORY CONTRACT LAW Plain~lffS have argued that California statutory law authorizing an award of attorneys fees for the prevailing party on contract claims should not be applied where, as here, the contract claims were dismissed as non-justici~le under the first amendment freedom of religion clauses. Plaintiffs' argument is not without merit. Applying state statutory law might impinge upon important constltutlonally ~aran~ee~ individual rights. Californiacontract law might collide with the first amendment in this particular context. NevertBeless, the court clearly has the power to awar~ attorneys' fees for the contract claims, and all other claims, based upon its inheren~ power to sanction bad faith litigation conduct. See, infra at 5-6. As set forth below the court will exercise that power. Therefore, the Special Master need not, and will not, address th'i~ unsettled co=plex constit,~tlonal quest;ion. D. DEFENDATNS ARE ENTITLED TO AN AWARD OF ATTORNEYS' FEES UNDER THE BAD FAITH EXCEPTION TO THE AMERICAN RULE It is well established that, under the "American rule", courts ordinarily will no~ award the prevailing party attorneys' fees absent statuoty authority to do so. See e.g., Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). It is eqally well established that there is an exception to the Aerican rule when the losing party has engaged in bad faith or op~ressive litigation tactics. See, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258 (1975) ("Also, a court may assess attorneys' fees for the willful disobe~ienoe of a court order . . . or when the losing party has 'acted in bad faith, vexatiously, wantonly, or for oppressive reasons'."); see also Chambers v. NASCO, Inc,, __U.S.__, 111 S.Ct. 2123, 2135 (1991) ("There is, therefore, nothing in the other sanctioning mechanisms or prior cases interpreting them that warrant a conclusion that a federal court may not, as a matter of law, resort to its inherent power to impose attorney's fees as a sanction for bad faith conduct.") As already stated, the Special Master finds that plaintiffs engaged in egregious bad faith litigation conduct. Therefore, to the exten~ that fees are no~ awarded pursuant to the Lanham Act or the copyright statute, they are awarded pursuant to the court's inherent power to sanction such bad faith conduct. E. THE SUBMITTED ATTORNEYS' FEES ARE FAIR AND REASONABLE The Special Master has reviewed the attorneys' bills submitted by defendants with an eye towards the twelve factors enunciated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 90 (9th Cir. 1975) -- the cornerstone "lodestar" for attorneyz' fees motions. The defendants' submission passes muster under this lode-star test. The submission reflects that many attorneys worked many, many hours on this case. However, the hours are reasonable given the plethora of constitutional is;use, discovery stand-offs, appeals and, most importantly, plaintiffs' practice of endlessly lititgating issues. The hourly rates are reasonable for federal civil practice within the Central District of California. The submission is complete and accurate. It does not contain billings for the pending counterclaims or extraneous matters. Redactions due to privileges are at a minimum and appear fair. Overall, the submission is exten.ive and convincing. The Special Master has considered plaintiffs' numerous objections go the submission in writing and at the hearing on the motion, but finds that these objections are meritless. Therefore, the court will award the requested amount of 2.9 million dollars. A recommended order will follow. IT IS ORDERED THAT plaintiffs' motion to defer ruling on the motion for attorneys fees is DENIED. IT IS FURTHER ORDERED THAT defendants' motion for attorneys' fees is GRANTED and plaintiffs are to pay defendants 2.9 million dollars for attorneys' fees. IT IS SO ORDERED. 16 DATED January 20, 1993 James G. Kolts u.~. Special Master U.S. Special Master CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been furnished to MARGERY WAKEFIELD, P.O. Box 290402, Tampa, Florida 33687 by U.S. mail this /~ day of February, 1993. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MARGERY WAKEFIELD, ) ) Plaintiff, ) ) vs. ) Case No. 82-1313-Civ-T-10 ) THE CHURCH OF SCIENTOLOGY ) OF CALIFORNIA, etc., ) ) Defendant. ) ) IN CAMERA MOTION FOR ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE HELD IN CRIMINAL CONTEMPT The Church of Scientology of California ("Church"), Defendant above and Movant herein, moves the Court for an Order requiring Plaintiff, Margery Wakefield, to Show Cause why she should not be held in criminal contempt for the violation of the terms of the preliminary and permanent injunction entered by this Court on May 16, 1989. The basis for this motion, as more particularly set forth herein and the attached exhibits and in the accompanying Memorandum of Law, is that Wakefield recently appeared on a television program which was broadcast on November 18, 1992, during which Wakefield made statements which she knew to violate this Court's permanent injunction. In support of this motion the Church alleges: 1. Margery Wakefield and the Church entered into a Settlement Agreement in the above-styled case which was approved by this Court and filed under seal with the Court on August 14, 1986. 2. Paragraph 5 of the Settlement Agreement provided that the parties promised and agreed for valuable consideration to comply with every term, condition and undertaking contained in the transcript of the in camara proceedings of July 11, 1986, a copy of which was attached to the Settlement Agreement as Exhibit 3. The parties further agreed that the Settlement Agreement would be enforceable by this Court. 3. The Church has fully complied with all the terms and conditions of the Settlement Agreement. 4. On July 2, 1987 the Church filed a Motion to Enforce Settlement Agreement and to Enjoin Plaintiff from violating the terms of the Settlement Agreement. 5. On May 16, 1989, the Court entered a Preliminary and Permanent Injunction against Margery Wakefield which provided in relevant part as follows: That Margery Wakefield is restrained and enjoined from disclosing to other persons, not members of her immediate family, matters relating to: a) the substance of her complaint against the Church; b) the substance of her claim against the Church; c) alleged wrongs committed by the church; d) the contents of the documents which were returned to the Church pursuant to the settlement agreement or similar fact evidence. 6. On July 18, 1989 the Church filed motions to hold Wakefield in civil and/or criminal contempt for repeated violations of this Court's May 16 injunction, as a result of published interviews Wakefield granted to various newspapers and radio and television stations. This Court referred the matter to - 2 - Magistrate Paul Game, Jr. for a hearing which was held in October and November, 1989. 7. In a Report and Recommendation dated June 25, 1990, Magistrate Game concluded that Wakefield had engaged in a total of forty-four separate willful violations of this Court's injunction which would warrant findings of civil contempt. Additionally, Magistrate Game deferred to this Court's discretion whether a referral should be made to the United States Attorney's office for prosecution of Wakefield on criminal contempt charges. Magistrate Game's June 25, 1990 Report and Recommendation is pending before this Court. 8. On November 18, 1992 a television program entitled "Au Nom De La Loi" (In the Name of the Law") was broadcast in Belgium by television station RTBF (the "RTBF Program"). The RTBF Program contained several segments. in which Margery Wakefield, who was identified each time by name, spoke on camera in English with a French "voice-over" about her experiences in the Church of Scientology and her views of Scientology. The televised segments involving Wakefield were apparently filmed in the Clearwater, Florida area. In the course of the RTBF program Wakefield made statements which are willful and knowing violations of this Court's May 16, 1989 injunction. Some of the aforementioned statements made by Wakefield on the RTBF Program are identical in substance to statements previously determined by Magistrate Game in his June 25, 1990 Report to have been willful contempts of this Court's injunction by Wakefield in 1989. The - 3 - details of Wakefield's recent new violations are set out more fully in the Declaration of Michael Lee Hertzberg, Esq., attached hereto as Exhibit A and are evidenced by excerpts from a certified translation of the RTBF Program attached hereto as Exhibit B. WHEREFORE, the Church respectfully moves as follows: 1. The Court appoint the United States Attorney or a private attorney to prosecute Wakefield's criminal contempt. 2. That the Court issue an Order requiring Plaintiff, Margery Wakefield, to appear before this Court and show cause why Wakefield should not be adjudged in criminal contempt of this Honorable Court and have sanctions imposed upon her as provided by law including but not limited to a fine of up to $500.00 or imprisonment not exceeding six (6) months for each act of contempt. 3. That Wakefield be required to pay costs and ' the private prosecui attorney. attorneys fees incurred by Dated: February 12, 1993 J~NS~N & JOHNSON P.~J~ Box 3416 Tampa, Florida 33601 (813) 223-5321 MICHEL LEE HERTZBERG V40 Broadway, 5th Floor New York, New York 10003 (212) 982-9S70 ~ttorneys for Defendant-Movant THE CHURCH OF SCIENTOLOGY OF CALIFORNI~ CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been furnished to MARGERY WAKEFIELD, P.O. Box 290402, Tampa, Florida 33687 by U.S. mail this /~ day of February, 1993. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MARGERY WAKEFIELD, ) ) Case No. 82-1313-Civ-T-10 Plaintiff, ) ) IN CAMERA vs. ) DECLARATION OF ) MIC}IAEL LEE HERTz, BERG, ESQ. THE CHURCH OF SCIENTOLOGY ) OF CALIFORNIA, etc., ) ) Defendant. ) .) MICHAEL LEE HERTZBERG hereby declares and states: 1. I am an attorney who has previously appeared before this Court on behalf of the defendant Church of Scientology of California ("the Church") in this matter. My co-counsel is Paul B. Johnson of the firm of Johnson and Johnson in Tampa. I submit this Declaration in support of the Church's Motion for Order to Show Cause Why Plaintiff Should Not Be Held In Criminal Contempt. I have personal knowledge of the facts set forth in this Declaration and could competently testify thereto if called as a witness. 2. On or about November 18, 1992 a television program entitled "Au Nom De La Loi" ("In the Name of the Law") was broadcast in Belgium by station RTBF (the "RTBF Program"). The narration and most of the interviews on the RTBF Program are conducted in French. Some of the interviews are in English with a voice over narration in French. 3. The RTBF Program includes several segments in which Margery Wakefield speaks on camera and is identified by name. k.i'~i ~,i..!. ~ Counsel representing the Church herein viewed a videotaped copy of the RTBF Program and concluded that remarks were made by Wakefield during the Program which violated an injunction entered by this Court against Wakefield dated May 16, 1989. 4. Counsel hired a translator, Annette T. Gordon, to translate the RTBF Program from French to English and to prepare a transcript of her translation. Ms. Gordon, who has no relationship to the Church, has experience providing transcriptions from French to English for the United States Customs Service and has also translated from French to English in proceedings in the United States District Court for the Middle District of Florida. Attached as Exhibit B herein are eleven pages containing the portions of the transcript prepared by Ms. Gordon in which Margery Wakefield either speaks or is referred to, together with an affidavit from Ms~. Gordon certifying the accuracy of her translation and reciting her professional qualifications. Should this Court desire, the Church will file the forty-one page translation of the entire RTBF Program as well as a copy of the videotape of the Program. The Church has not done so at this time to avoid burdening the Court with excess material. 5. Significant portions of the RTBF Program were filmed in or about ClearWater, Florida, and Clearwater appears to be the venue for the segments involving Wakefield. - 2 - 6. Wakefield is introduced on the RTBF Program as a former Scientologist qualified to describe what the Church of Scientology is like based upon her personal experience. 7. The narrator of the RTBF Program reports that Wakefield has disclosed that she was transformed by the Church into a "zombie" by techniques of "brainwashing": VOICE: For 12 years MARGERY was a convinced Scientologist. And, now she's revealed to us how the sect transformed her into a zombie, an obedient and docile robot. The method is simple and frightening at the same time. A daily drill exacerbated by the techniques of brainwashing. 8. During the RTBF Program Wakefield claimed that the Church's training routines are designed as hypnotic processes: MARGERY: T-R-O-, the first drill that we did is part of the first Scientology course, which is called "Communication Course." They tell you that this drill serves in helping you better your visual contacts, but, really, is designed to hypnotise. When I was in Scientology, this drill lasted 2 hours. 9. During the RTBF Program Wakefield stated that at the time she worked at the Church's Guardian Office she was aware of the planning of two murders: MARGERY: Michael Meisner was one of the two people that we had planned to murder in 1979. I think it was. And, the day that I was told that, we had the meeting in the Guardian Office, Michael Meisner was handcuffed to a bed. The Guardian Office had him somewhere in hiding. The plan was to take him, the next day, out to sea, out to the bay, tie weights on him and to throw him overboard. In Scientology, it's called "Deep Sixing." That was the plan. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on February 11, 1993 at New York, New York. MICHAEL LEE HERTZBERG - 4 - AFFIDAVIT OF TRANSLATOR STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, the undersigned, ANNETTE T. GORDON, being first duly sworn, do certify that the attached transcript is a true and accurate translation from French into English of those portions of the ~~ video tape entitled "In the Name of the Law" in which MARGERY WAKEFIELD appears. I received my Bachelor of Arts Degree from the University of Arkansas in English and in French as an Honors graduate in 1971 and received my Masters Degree from the University of Arkansas in 1974. While at the University of Arkansas, I taught French as a teaching assistant. I am fluent in the English and French languages and have traveled extensively in France. I have provided transcriptions from French to English for the U.S. Customs Service and I have translated from French to English in proceedings in the United States District Court for the Middle District of Florida. The foregoing instrument was acknowledged before me this 22nd day of January, 1993, by Annette T. Gordon, who has produced a Florida Drivers' License as identification and who did take an oath. Notary Signature VALERiE ALEKSANDAR Notor,/Public. State of Flor'.do I My Carom. Exp'~o$ Feb. 25, 1994 No. AA7420 lO VOICE: In Clearwater LUC meets MARGERY, former Scientologist. MARGERY spent 12 years in the sect and everything MYRIAM experienced, she experienced herself. She knows why MYRIAM ran away rom all discussions with her father. To the sect, all enemies of Scientology are suppressire people, who must not be visited on any occasion. MARGERY (Caption below woman reads: MARGERY WAKEFIELD, American Ex-Scientologist): When you are in Scientology, if you have any problems at all, the first thing you do it is a specific Auditing procedure to find out who in your environment, in your family, that is the suppressive person for you. That -14- person preventing you from not doing as well as you should be doing. In my case, when I did this Auditing, I dis- covered that my father was the suppressire person in my ~ily. And, I've done the same thing that MYRIAM.is doing now. I wrote him a letter and I said that'I never want to see you again. I really believed that my father was'like the devil. He was evil incarnate. ROGGE: In Clearwater, LUC discovered MYI{IAM'S real address -- a dilapidated housing complex where the Scientology staff resided. This property consists of 400 houses and'a large nm~er of Adepts, a thousand, live there. LUC: /Unong these there are approximately 50 Adepts, who, at the time when my daughter was there, belonged to the Gulag Scientology, which corresponds to the address RPF, which means "Rehabilitation Force." In reality., that's the place where rebels, or the young who have been found guilty of mistakes against the sect are kept. MARGERY (~A~erican Ex-Scientol~gist): It is a prison... You have to wear a prison unifoL~. You have an aLumband that you wear on your arm so that everyone knows that he must not talk.to you. You work very long hours each day. You can sleep only 6 hours a night. You.can't speak to anybody unless you're spoken to. In many cases, you have to eat meals that other people have left on their plates. It's a very demoralizing experience, very dehumanizing experience. I can't tell you for an Ex-Scientologist who's been in the RPF, the word RPF gives me a feeling of such dread. Like nothing else..I' know. ' ' VO'ICE: LUC'~ trip was a Iailure ~F/RIA~ remained deaf=]to all his appeals but a very small hope remained. A line' (existed). MYRIAM accepted a very last appointment. LUC: And, upon time to leave, MYKIA~ said to me, "You know, there's nothing more to do between us a'fter eve~-ything's that's happened. After 'the threats you've made against Scientology. I will not see you anymore. I won.,t..accept anymore con'tacts by 'telephone. I will not answer your' letters until I 11ave formal proof that you will not execute the threats you have spoken." These were her last words~ before we left each otller. And, then, I returned to my country with a broken heart. VOICE: LUC will never give up. I-Ie knows t?h. at since he's met FH~{GERY, that sooner or later, ~YRIAMwill leave the sect and find freedom again as MARGERY has done. VOICE: For 12 years MARGERY was a convinced Scientologist. And, now she's revealed to us how the sect transformed her into a zombie, an obedient and docile robot. The method is .simple and frightening at the same time. A daily drill exacerbated by the techniques of brainwashing. MARGERY wanted to do a faithful recreation. MYRIAM's brother PIERRE accepted to be the guinea pig. Scene depicts MARGERY and PIERRE sitting in two chairs. -19- MARGERY: One, for moving your face. Start~ ' One, for laughing. Startl One, for blinking. Startl T-R-O, the first drill that we did is part of the first Scientology course, which is called "Conm~unication Course." They tell you that this drill serves in helping you better your visual contacts, but, really, is designed to hypnotise. When I was in Scientology, this drill lasted 2 hours. If you blinked your eyes or moved, the teac]ler would 'tell you, fail, and each time, you'd start again for 2 hours. And, you do this drill over and over again in each Scientology course. A Scientologist could do this drill for .hundreds of hours. Scene depicts MAi~GERY and PIERRE sitting in chairs. MARGERY: Hotstuff in bedl We hear that you're hotstuff in bed. OK. I guess that's flat. You're pretty cute. Flunk, for moving your eyes. Start. You're pretty cutel I know. Flunk, for laughing. Start You're pretty cute. I don't know, your nose is a little big, though. Does your wife think you're cute? Does she have any complaints with your perfo~m~ance? I'll have to ask her 'the next time I see her. Flunkl For moving your eyes. Start! -20- The second drill called "Bull-baiting" tries to locate the things that a person reacts to. And, to train the person not to react anymore. And, "Bull-baiting" is done often enough and long enough that, at the end, the person becomes a robot and doesn't react to anything anymore. Scene depicts MAKGEKY and PIEKKE with a table, 2 chairs, and a vase of flowers, and some candy. MARGERY: This is 8C. Start! Touch that chair. Thank you. Touch those flowers. Thank you. Touch that ashtray. Thank you. Touch the seat of that chair. Thank you. Touch that candy. Thank you. Touch that chair. Thank you. Touch that table. Thank you. Touch that chair. Thank you. MARGERY: This is a drill which is called "Control Drill." And, this drill essentially teaches a person to obey an order or a request that he is given and to obey any order he is given without question. Scene depicts 2 chairs, a table, an ashtray. PIERRE: (shouting to MARGERY) Stand up! Thank you. (shouting to MARGERY) Sit on the table! Thank you. MARGERY: Flunk! Not loud enough. PIERRE: (shouting even louder) Stand up! Thank you. (shouting even louder) Sit on the Table! Thank you. MARGERY: Flunk~ Not loud enough. PIERRE: (shouting louder than last time). Stand upl .Thank you. (shouting still louder). Sit on the Tablel Thank you. MARGERY: Flunk! For not looking at the ashtray. Start! PIERRE: Stand upi Thank you. Sit.on the Table] Thank you. MARGERY: This is done to train a person to give an order with such intensity that it could not be disobeyed. And, an ex- member of Scientology 'told me 'that Hitler did the very same drill with his men. Except, Hitler used an apple instead of an ashtray. This is the session. ROGGE: The "electrometer," a curious machine, plays an essential role in Scientology. A simplified lie-detector the electro- meter locates "Angrams", painful past memories and previous lives. Scene depicts PIERRE holding onto an electrometer. PIERI{E: Seven million years B.C. MARGERY: OK. Tell me what happened. PIERRE: I was on a spaceship and I was a surveyor. Another spaceship hurt us. And, another man with . . . unintelligible . c~une with, at us, with spaceguns and laserguns and they hurt me. And, I don't remember what happened. MARGERY: This is a science in which a person returns tohis. ancient memories through his past life and remembers'what- ever happened in his numerous lives. There are millions and -22- millions of years. A person does Dianetics for hundreds and hundreds of hours. I believe that Dianetics is very dangerous because, after a person does Dianetics for so many hours, his sense of reality in relation to his actual life is altered and, I believe, damaged. MA/~GERY: This is the Security check. (Speaking to PIERRE) Have you stolen anything? That shows. PIERRE: Yes, when I was a young boy. M/fi~GERY: And, what did you steal? PIERRE: Some sweets. MARGERY: I-Iave you ever blackmailed someone? Have you ever been in prison? Are you guilty of something? PIERRE: I took some money from my wife's handbag. MARGERY: Do you have a secret? Have you ever been a drug addict? Have you ever raped anyone? Have you ever practiced homosexuality? Have you ever been sexually unfaithful? What was it? MARGERY: The Security checks in Scientology are administered by someone called the "Ethics Officer." And, first, they ask a lot of ques'tions about himself and about sensitive details of his life. Everything they say is written down and kept by the organization. And, I do know that this information is used later on to blackmail, or, if the person thl.-eatens -23- to sue the organization, to wrong or ha~ the person. In Scientology there are no parts of your life which are unknown or unrecorded and kept by the organization for use later on. Scene reverts to studio. ROGGE: PIERRE, MYRIAM's brother is here with us tonight. You accepted doing these tests. What impression did you get? PIERRE: In effect, I can answer 'that there were three different impressions. First, before, it was to pass the 'test. And, then, the curiosity and the absolute will to understand, I want 'to understand, what happened to my sister. During, it was at tlle beginning, I had the impression of a game which quickly became a questionnaire. And, finally, wettied to . . unintelligible . . . that I passed and to discover myself and 'tried to have vulnerable points. Thirdly, it's afterwards, where, really, I had the impression of someone who ]lad escaped a bad accident, which really made me think of her fear, and, after-wards, think hard about how he had escaped. And, since then, now there are questionnaires for children of 6 years old. That really puts my conscience in tu~aoil. You can really assume a lot of questions which follow are manipulative. I keep then, because I've met MP~~GEKY who spent 12 years in Scientology, the hope frankly that my sister can also leave it. -24- Music plays. Scene depicts MARGERY. ":' ROGGE: At the time M~jlGEltY was a men~er of the Guardian o~fice, the secret service of the sect. She had also participated in Scientology's dirty tricks. MARGERY: Wllat I had to do was to break and enter into the headquarters in Washington, D.C., as I was taught, o~ the Association of American Psychiatrists and steal certain -27- financial records. And,-.I did 'that. Ugh, in another case,' ' they 'taught me how to lie in court. /u~d, I wasg0ing into court to 'testify against a judge and to depose false evidence agains'6 'this judge. Michael Meisner was one of the two people 'that we had planned to murder in 1979. I think it was. }did, 'the day 'that I was 'told 'that, we had 'the' meeting ixl 'the Guardian Office, Micllael Meisner was hand- cuffed to a bed. Tlle Guardian Office had him somewhere in ]liding. TIle plan was to 'take him, 'tllc next day,.outto sea, out 'to the bay, tie weights on hh~ and to throw him 'overbOard. In Scientology, it's called "Deep Sixing." That was the plan. I understood later that r~ors were that he managed to escape and that he went to the FBI with his' in- formation. -~d, we've never heard him spoken of since then. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MARGERY WAKEFIELD, ) ) Plaintiff, ) ) vs. ) Case No. 82-1313-Civ-T-10 ) THE CHURCH OF SCIENTOLOGY ) OF CALIFORNIA, etc., ) ) Defendant. ) ) IN CAMERA MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR AN ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE HELD IN CRIMINAL CONTEMPT A. Introduction The most recent violation by Margery Wakefield of this Court's May 16, 1989 injunction is uniquely deserving of punishment as a criminal contempt. Within one year of entering into a court approved Settlement Agreement with the Church of Scientology of California ("Church") Wakefield engaged in conduct which this Court determined violated the settlement. As a result "'~his Court issued its May 16 injunction which in clear and unequivocal terms enjoined Wakefield from further violations of the Settlement Agreement. Less than three months after entry of this Court's injunction, which Wakefield did not appeal, Wakefield undertook a deliberate campaign of media interviews and contacts in which she openly defied the injunction. Indeed Wakefield publicly proclaimed that she had committed multiple violations of the injunction and that she would continue to do so regardless of the consequences. Ultimately Magistrate Paul Game, Jr. determined that Wakefield had separately violated the injunction forty-four times on eleven different occasions in the three months after entry of the injunction. Magistrate Game deemed these willful violations to warrant findings of civil contempt, and deferred to this Court's discretion whether referral should be made to the United States Attorney's office for prosecution of Wakefield on criminal contempt charges. While Magistrate Game's report is pending before this Court Wakefield has now resumed her contemptuous defiance of the injunction. As we shall demonstrate herein, some of the statements made by Wakefield on the recently broadcast television program are identical in substance to statements which Magistrate Game previously ruled were willful contempts of the injunction. It is clear that the only appropriate punishment for Wakefield's latest calculated mockery of this Court's order is to prosecute her for criminal contempt. B. The Latest Violation of the Injunction On November 18, 1992 a television program entitled "In the Name of the Law" was broadcast in Belgium by station RTBF (the "RTBF Program"). The thesis of this show generally was a purported "expose", in news magazine format, of the Church of - 2 - Scientology. The RTBF Program includes several segments in which Wakefield speaks on camera and is identified by name. (Hertzberg Decla. at  3.)U Wakefield is presented as a former Scientologist qualified to describe what the Church is like based upon her personal experiences. (Hertzberg Decla. at  6.) Significant portions of the RTBF Program were filmed in or about Clearwater, Florida, and Clearwater appears to be the venue for the segments involving Wakefield. (Hertzberg Decla. at  5.) During the RTBF Program the narrator reports that Wakefield has asserted that the Church transformed her into a "zombie" by use of "brainwashing" techniques. (Hertzberg Decla. at  7.) Further, during the Program Wakefield made numerous direct statements about the Church, including the following: 1. Wakefield claimed that the Church's training routines are designed as hypnotic processes; and 2. Wakefield stated that at the time she worked at the Church's Guardian Office she was aware of the planning of two murders. (Hertzberg Decla. at  8-9.) Identical allegations which Wakefield had previously made to the media about purported brainwashing, hypnosis and murders have already been found by Magistrate Game to be contempts of this Court's injunction. (See June 25, 1990 Report 1_/ References to "Hertzberg Decla." are to the Declaration of Michael Lee Hertzberg, Esq. which is annexed as Exhibit A to the Motion For Order to Show Cause ' 3 and Recommendation of Hon. Paul Game, Jr. at pp. 7, 10-13, 16, 18, 19, 21 and 22.) Specifically, Magistrate Game noted that during the litigation of her underlying lawsuit Wakefield had made allegations of brainwashing in her depositions of February 17, 1983 (at page 108), September 30, 1985 (at pages 84-85; 139) and October 1, 1985 (at page 44); that Wakefield had described the training routines as hypnotic processes in her depositions of February 17, 1983 (at page 108) and September 30, 1985 (at page 58); and that Wakefield had claimed to witness the planning of two murders, while working at the Guardian's Office, in her deposition of February 16, 1983 (at pages 254-257). Therefore, Magistrate Game found that Wakefield's repetition of these charges to the media after entry of the injunction clearly violated the proscriptions of the injunction which prohibited Wakefield from publicizing the substance of her complaint or claims against the Church, or alleged wrongs committed by the Church. Thus there can be no dispute whatever that Wakefield had notice that her recent repetition of these same statements on the RTBF Program would constitute yet another deliberate contempt of this Court's order. C. The Law This Court has the power to punish contempt of its authority. 18 U.S.C. ~ 401 provides in relevant part: A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as . [d]isobedience or resistance to its lawful writ, process, order, rule decree or command. - 4 - An injunctive order, such as this Court's May 16, 1989 order, is an extraordinary writ enforceable by the power of contempt. Gunnv. University Committee to End War in Vietnam.., 399 U.S. 383 (1970). Under the present circumstances the Church is seeking criminal contempt sanctions against Wakefield. A contempt is criminal in nature when punishment by imprisonment or fine is deemed necessary to vindicate the authority of the court. United States v. United Mine Workers, 330 U.S. 258, 302 (1947); United States v. Hilburn, 625 F.2d 1177, 1179 (5th Cir. 1980); United States v. Rizzo, 539 F.2d 458, 463 (5th Cir. 1976). Wakefield's open defiance of this Court's injunction has resumed with her participation in the RTBF Program. The threat of remedial sanctions for civil contempt for her prior multiple willful violations has obviously not deterred her. Indeed the cumulative record strongly suggests that Wakefield will feel free to continue to flaunt this Court's authority unless and until she is punished for her illegal actions. In the case of a criminal contempt, Rule 42 of the Federal Rules of Criminal Procedure governs the manner by which notice is provided. Young v. United States, ex rel. Vuitton Et Fils S.A., 481 U.S. 787 (1987). Rule 42 provides: A criminal contempt . . . shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting - 5 - the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. It is proper for the Court to appoint a United States Attorney or a disinterested private attorney to prosecute the criminal contempt charges. Young 481 U.S. at 800-01. Wakefield has no constitutional right to a jury trial on the criminal contempt. The Court may act on this matter without a jury because the Church has sought imprisonment of Wakefield for no more than six months for each act of contempt. A contemnor may be sentenced to up to six months' imprisonment and fined as much as $500.00 without a jury trial. Frank v. United States., 395 U.S. 147, 150 (1969); United States v. R1ander, 714 F.2d 996, 1005 (9th Cir. 1963). The instant pleadings, including the Declaration and excerpts from the television program, attached to the Motion, together with the prior findings by the Magistrate and this Court, establish overwhelmingly that Wakefield's participation in the RTBF Program constitutes yet another willful defiance of this Court's authority which is punishable as a criminal contempt. For the foregoing reasons the Church respectfully requests this - 6 - Court to initiate the procedure for prosecution of Margery Wakefield at the earliest practicable moment. Dated: February 12, 1993 ~.1~~ ~,~ ResF~-jlt-f-- ly U .~/tted, B.~dHNSO~, ESQ. ~la.~ar No. 039966 P~Box 3~16 Tam~ , Florida 33601 (813 223-5321 MICHEL LEE HERTZBERG 740 Broadway, 5th Floor New York, New York 10003 (212) 9S2-9SV0 ~ttorneys for Defendant-Movant THE CHURCH OF SCIENTOLO6Y OF C~LIFO~I~ - 7 - ================================================================= If this is a copyrighted work, you are acknowledging by receipt of this document from FACTNet that on the basis of reasonable investigation, you have not been to obtain a copy elsewhere at a fair price, and that you are and will abide by the following copyright warning. WARNING CONCERNING COPYRIGHT RESTRICTIONS: The copyright law of the United States (Title 17, United States Code) governs the making of photo copies or other reproductions of copyrighted material. Under certain conditions specified by law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be "used for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement. FACTNet reserves the right to refuse to accept an order for copying or other duplication, or delivery of copied or duplicated material if, in its judgment, fulfillment of the order would involve violation of copyright law. ------------------------------------------------------------------- ------------------------------------------------------------------- DOS FILENAME OF TEXT FILE: IE.TXT DOS FILENAME OF IMAGE FILES: IE.TIF ADMINISTRATIVE CODE: SECURITY CODE: DISTRIBUTION CODE: NAME FOR BBS: RTC, et al. Plaintiffs v. Robin Scott, et al., Defendants, & Mayo. Seeking $2.9 million in fees. SORT TO: CONTRIBUTOR: LOC. OF ORIG: FACT NOTES: RTC, et al. Plaintiffs v. Robin Scott, et al., Defendants, & Mayo. Seeking $2.9 million in attorneys' fees. Plaintiffs ordered to pay January 20, 1993, James G. Kolts, U.S. Special Master. Poor OCR in some spots. For additional verification see image files contained in the file with same name and .ZIP extension. UPDATED ON: 4/5/94 UPDATED BY: FrJMc =================================================================