------------------------------------------------------------------- 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. ===================================================================== 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., ) ú ) 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 this 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 9 3-)~ Wakefield is presented as a former Scientologist qualified to describe what the Church is like based upon her personal experiences. (Hertzberg Decla. at 9 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 9 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 99 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 !! 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 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 ú ú . [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. Younq 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. Rylander, 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 Resp, ~ - ly. U ~/tted, ~la. Sar No. 039966 P~ Box 3416 Tam~ , Florida 33601 (813 223-5321 MICHAEL LEE HERTZBERG 740 Broadway, 5th Floor New York, New York 10003 (212) 982-9870 Attorneys for Defendant-Movant THE CHURCH OF SCIENTOLOGY OF C~IFO~IA - 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. 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