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Newsgroups: alt.religion.scientology,misc.legal
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, a Scientology Corporation, Plaintiff,
v. GRADY WARD, an individual, Defendant ) ) ) ) ) ) ) ) ) ) ) ) ) )
) ) ) ) ) ) NO. C-96-20207 RMW
MOTION FOR ORDER TO SHOW CAUSE WHY WARREN MCSHANE AND HELENA KOBRIN
SHOULD NOT BE FOUND IN CIVIL AND CRIMINAL CONTEMPT
Date: Friday, July 17, 1998 9:00 A.M. Courtroom: Hon. Ronald M. Whyte
The defendant Grady Ward will move on July 17, 1998 for an Order to
Show Cause re Civil and Criminal Contempt with respect to plaintiff
Warren McShane and counsel Helena Kobrin. The defendant requests a
summary mixed proceeding as permitted by law. (U.S. v. United Mine
Workers of America, 1947, 67 S.Ct. 677, 698, 330 U.S. 258, 298, 91
L.Ed. 884) Although the plaintiff and myself are currently in
settlement negotiations, the criminal portion1 of the contempt
proceeding should be heard even if the underlying litigation has
been resolved or settled (Gompers v. Buck's Stove & Range Co., 1911,
31 S.Ct. 492, 221 U.S. 418, 55 L.Ed. 797). The plaintiff and counsel
for plaintiff disobeyed a direct and unambiguous order from the
bench issued August 2, 1996 directing that "To the extent this has
not already occurred, Initial Disclosures should be fully made."
The order was clear, valid, and the plaintiff and plaintiff's
counsel admits to both receiving and understanding this order. The
plaintiff then both failed to supplement its earlier incomplete
Initial Disclosures, assured the defendant and the court that it had
fully made them, and actively falsified answers to Interrogatories,
Document Requests, and Depositions answers in order to conceal data
and witnesses it knew it ought to have disclosed pursuant to FRCivP
26(a)(1), L.R. 16, and the direct order from the bench. This failure
and knowing concealment continued for two years and besides
criminally disobeying a direct court order, is a civil contempt
since the plaintiff to this day has failed to make any supplemental
or amendatory disclosures or Interrogatory answers nor to produce to
defendant Grady Ward documents that he has requested for more than a
year.
This documents and witnesses are not incidental to the issues
of this case, but are in fact the essential core of this case and
underlies all of the substantive evidence that the plaintiff alleges
is relevant to this case. The defendant urges the court to find
Warren McShane and Helena K. Kobrin in criminal contempt in order to
punish them for their direct, knowing, and bad-faith disobeying an
order from this court, and find them in civil contempt in order to
both compensate defendant Grady Ward from the damage he has suffered
by being forced to make this motion and to fashion an order, if
possible, that can rectify this gross discovery abuse that may
ultimately prevent a fair trial in the captioned litigation. AN
ORDER WAS ISSUED AND THE ORDER WAS HEARD AND UNDERSTOOD BY THE
PLAINTIFF
On August 2, 1996, the court of the Honorable Ronald M. Whyte issued
the following order "To the extent this has not already occurred,
Initial Disclosures should be fully made." [Decl. Grady Ward, Ex. 6
at page 4] Since the language of the court of Initial Disclosure
mirrors the language of L.R. 16 and FRCivP 26(a)(1), it is
reasonable and valid, clear, and unambiguous on the face of it.
However, even if somehow the order were invalid, that would not be a
defense, see Dolman v. U.S., 1978, 99 S.Ct. 551, 439 U.S. 1395, 58
L.Ed.2d 641. The fact it was an Order from the bench is also not a
defense to civil or criminal contempt.2 The plaintiff admitted to
understanding this Order. Decl. Grady Ward Ex. 6 at page 4, page 5
at lines 12-15 and Ex. 6 at page 11 shows that the plaintiff's
failure to disclose the existence and identity of relevant data
compilations and their custodians was not inadvertent or accidental,
since the defendant explicitly listed the general areas in which he
felt that the plaintiff had failed to disclose.
DISOBEYING THE ORDER WAS WILLFUL, INTENTIONAL, AND IN BAD FAITH3 The
plaintiff's failure to obey the court order was willful and in bad
faith. Decl. Grady Ward Ex. 6 at page 4 and page 13 reiterate that
the plaintiff declares that it had already completed its disclosures
and it had nothing more to disclose. Id. Ex. 7 at page 59 McShane
under penalty of perjury falsely withholds knowledge of Jean
Carnahan and falsely describes the scope of Rhea Smith's work. Id.,
Ex. 7 at 73 McShane falsely says he doesn't know if magnetic records
are kept, despite having directly and personally supervised these
custodians for a continuous period of time from February 24, 1995 to
the present. (Id. Ex. 8 at pages 13 and 14, Ex. 9 at pages 12 and
13, Ex. 2 at pages 2 and 3). This was not an isolated example of
false answers under oath. The Interrogatories propounded by the
defendant dealing directly with the Internet monitoring, custodians
and data compilations thereof, were falsely answered under oath by
McShane repeatedly. (Id., Ex. 3 at page 4 at Interrogatory #4; Ex. 4
at page 6 at Interrogatory #10)
HELENA K. KOBRIN WAS A KNOWING AND WILLFUL CO-CONSPIRATOR
That Helena K. Kobrin was acting in active concert and participation
is also beyond a reasonable doubt. For example, she certified that
the false Initial Disclosure (Id. Ex. 1), and several
Interrogatories (Id., Ex. 3 at page 4 and page 7, Ex. 4 at page 6
and 8) and Document Requests (Id., Ex. 5 at page 4, request 6.; page
5, request 9.; page 6, request 10.) that no such witnesses and
documents existed. Further proving her personal knowledge and guilt
is the testimony of Jean Carnahan who testified that Carnahan
exclusively used the personal account of Helena K. Kobrin "HKK"
herself (Id., Ex. 8 at page 49) after consulting with Kobrin
herself, and that along with McShane, Kobrin was the sole other
person directing the monitoring work. (Id., Ex. 8 at pages 13 and
14; similar testimony emanated from Rhea Smith. (Id., Ex. 9 at page
27.) The testimony of Carnahan and Smith confirm that McShane and
Kobrin had been personally directing the monitoring and Internet
data collection for at least a year prior to this litigation. (Id.,
Ex. 8 at page 11; Ex. 9 at 7,8 and 13). It is simply incredible to
believe that McShane and Kobrin were somehow unaware of the role of
Carnahan and Smith or the existence of the data compilation that
they relied upon throughout this litigation.
CONTEMPT HAS BOTH CRIMINAL AND CIVIL COMPONENTS
Besides derailing the course of this litigation by this immense
discovery fraud, McShane and Kobrin's active concealment and false
answers to multiple discovery requests disobeyed a direct court
order. This disobeying show utter disrespect to the court and
severely and irremediably prejudices the defendant with respect to
evidence crucial in this case. The authority of the court must be
vindicated if not to punish the plaintiff and to coerce lawful
behavior in this instance, but to serve as a warning to other
contemnors who would seek to waste the court's time and to disobey
lawful orders of the court. In addition to a finding of civil and
criminal contempt, the defendant urges that the court file an
Information with the U.S Attorney to investigate whether it is
appropriate to proceed with a criminal action for perjury against
Warren McShane. ("Prosecution for criminal contempt, unlike
revocation of supervised release, is punishment for act constituting
contempt of court, not for underlying crime." U.S. v. Soto-Olivas,
44 F.3d 788, cert. denied 115 S.Ct. 2289, 132 L.Ed.2d 290 (9th Cir.
1995)) And even at this late date if the plaintiff complies with
lawful disclosure and discovery and obeys the court's orders, it
would still not get them off the hook with respect to criminal
contempt: "Assuming that party substantially complied with order to
produce documents, such compliance did not bar further criminal
contempt proceedings against party; although substantial compliance
was sufficient to purge civil contempt, it did not follow that
dismissal of criminal contempt charge was required under least
possible power rule, since purpose of criminal proceedings was to
punish party for longstanding disobedience, and, if any prior
willful misconduct could be shown, belated substantial compliance
did not excuse it." N.L.R.B. v. A-Plus Roofing, Inc., 39 F.3d 1410
(9th Cir. 1994) However even after their manifest contempt and
failure to disclose and supplement discovery the plaintiff has not
bothered to rectify its contemptuous behavior as provided by LR and
FRCivP.
CONCLUSION
There are three elements of criminal contempt are under the statute:
"Elements of criminal contempt under governing statute [18 U.S.C.A.
§ 401(3)] are: clear and definite order and contemnor's knowledge of
it; and willful disobedience of order." U.S. v. Metropolitan
Disposal Corp., 622 F.Supp. 1262, aff'd 798 F.2d 1273 (D.C.Or. 1985)
They are also unquestionably guilty of civil contempt: "Civil
contempt appears when party fails to comply with court order, and
failure to comply need not be intentional." General Signal Corp. v.
Donallco, Inc., 787 F.2d 1376, appeal after remand 933 F.2d 1013.
(9th Cir. 1986) The plaintiff and plaintiff's counsel have, in the
case of the criminal element, beyond a reasonable doubt, and in the
case of the civil component, with clear and convincing evidence,
perpetrated the crime of criminal and civil contempt on this court
and upon the defendant Grady Ward.4 The defendant urges the court to
asses the maximum criminal and civil liability for this contempt
consistent with a summary proceeding.
Respectfully submitted,
DATED: June 9, 1998
______________________________________ GRADY WARD, in pro per 1
"Purpose of criminal contempt is punishment, while purpose of civil
contempt is remedial." Perry v. O'Donnell, 759 F.2d. 702 (9th Cir.
1985) 2 "Court's verbal order forbidding counsel to argue issue of
selective vindictive prosecution to jury was sufficiently specific
to support finding of criminal contempt." U.S. v. Turner, 812 F.2d
1552 (11 Cir. 1987)
3 Although it will be shown that McShane and Kobrin's contempt was
in bad faith, this is not needed to support a charge of criminal
contempt. "Government was not required to show defendant's bad
intent in order to prove willfulness and criminal contempt." U.S. v.
Remini, 967 F.2d. 754 (2nd Cir. 1992) Nor is a specific intent
needed: "Showing of specific intent is not required to properly
convict defendant of criminal contempt." U.S. v. Metropolitan
Disposal Corp., 622 F.Supp. 1262, aff'd 798 F.2d 1273 (D.C.Or. 1985)
4 "Deliberate, willful and contumacious disregard of judicial
process and rights of opposing parties justifies most severe
sanction." Carlucci v. Piper Aircraft Corp., 102 F.R.D. 472 (S.D.
Fla. 1984)
1 MOTION FOR ORDER TO SHOW CAUSE WHY WARREN MCSHANE AND HELENA
KOBRIN SHOULD NOT BE FOUND IN CIVIL AND CRIMINAL CONTEMPT No.
C-96-20207 RMW
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, a Scientology Corporation, Plaintiff,
v. GRADY WARD, an individual, an individual, Defendant. ) ) ) ) ) )
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO. C-96-20207 RMW
DECLARATION OF GRADY WARD IN SUPPORT OF MOTION FOR ORDER TO SHOW
CAUSE WHY WARREN MCSHANE AND HELENA KOBRIN SHOULD NOT BE FOUND IN
CIVIL AND CRIMINAL CONTEMPT
Date: Courtroom: Hon. Ronald M. Whyte
I, Grady Ward, declare:
1. I am the defendant in the above captioned action and have
personal knowledge of the fact herein presented. If called to
testify thereto, I could and would be competently able to do so.
2.The attached Exhibit 1 is the plaintiff's initial disclosure as
served upon the defendant on July 1, 1996. Exhibit 1 at page 2
shows that Jean Carnahan, Rhea Smith, nor any person or custodian
associated with the Church of Scientology International is
disclosed. Exhibit 1 at page 4 shows that the vast data compilation
of Internet records kept by Carnahan, Smith, and CSI and related
documents as described in the deposition of Carnahan and Smith are
not disclosed. Exhibit 1 at page 6 shows that Helena K. Kobrin as
attorney for plaintiff certified that this disclosure was complete
and correct.
3. The attached Exhibit 2 is a declaration under
penalty of perjury of Warren McShane in support of plaintiff's
motion for partial summary judgment filed April 4, 1997. Exhibit 2
at page 2 at 3., McShane admits to "personally direct[ing] this
Internet monitoring" as later corroborated by Carnahan and Smith and
he goes on to repeat that it is "At my direction". At the bottom of
Exhibit 2 at page 2, he admits that "All postings referred to in
this declaration have been obtained and maintained in this fashion."
Exhibit 2 at page 14 he signs it under penalty of perjury on April
4, 1997.
4. The attached Exhibit 3 is the plaintiff's response to
defendant's Interrogatories 1-5 served on September 16, 1996.
Exhibit 3 at page 4 fails to name Jean Carnahan or Rhea Smith. This
exhibit in fact goes to great pains to obscure and conceal the
source and custodianship of the Internet records as explicitly
requested in Interrogatory #4 giving a total of eleven law firms and
twenty (20) attorneys who in fact had nothing to do with the
acquisition or custodianship of the Internet records. Exhibit 3 at
page 7 is the certification by Helena K. Kobrin followed by the
verification under penalty of perjury by Warren McShane that the
"foregoing is true and correct" dated September 13, 1996.
5. The attached Exhibit 4 is the plaintiff's response to defendant's
Interrogatories 6-12 served on September 16, 1996. Exhibit 4 at page
6 at Interrogatory #10 once again explicitly fails to mention
Carnahan or Smith. Exhibit 4 at page 8 is the certification by
Helena K. Kobrin and the following page is the verification under
penalty of perjury of Warren McShane dated September 13, 1996.
6. The attached Exhibit 5 is the plaintiff's response to defendant's
request for production of documents and things dated September 11,
1996. Exhibit 5 at page 4 at 6. shows that the Internet data horde
containing information concerning Grady Ward is concealed. Exhibit 5
at page 5 at 9. same concealment of responsive data. Exhibit 6 at
page 6 at 10. shows active concealment of responsive documents as
does 5 at page 7 at 14. in which Kobrin and the plaintiff
specifically deny the existence of such responsive documents and
data. Exhibit 5 at page 12 is the certification by Helena K. Kobrin.
7. The attached Exhibit 6 is the plaintiff's Opposition to
Defendant's Motion to Compel Initial Disclosure filed January 6,
1997. Exhibit 6 at page 4 shows that (1) the plaintiff is aware that
the defendant had complained of the failure of the plaintiff to make
full initial disclosures as required by L.R. 16 and FRCivP 26(a)(1);
(2) the plaintiff's admission that this court entered an explicit
order on August 2, 1996 that "To the extent this has not already
occurred, Initial Disclosures should be fully made."; and (3) that
the plaintiff still falsely insists that it has already made its
disclosures and has not further disclosures or supplementation of
same to make. Exhibit 6 at page 5 at lines 12-15 proves that the
plaintiff was aware that the defendant was seeking disclosure
particularly of computer data and custodians. Exhibit 6 at page 11
shows that the plaintiff was also aware that the defendant was
particularly seeking the names of custodians of such records so he
could conduct depositions and other discovery in a timely manner.
Plaintiff's response to this request shows active concealment of
relevant identities of custodians and data. Exhibit 6 at page 13
once again reiterates that the plaintiff has no more information to
disclose and is certified by Thomas R. Hogan on January 6, 1997.
8. The attached Exhibit 7 are excerpts from the deposition of Warren
McShane conducted under penalty of perjury on May 22, 1997. Exhibit
7 at page 59, McShane falsely conceals the existence of Jean
Carnahan and falsely identifies Rhea Smith as the monitor since
January, 1995. This is the first mention of Rhea Smith in this
litigation. Exhibit 7 at page 63 McShane admits that no other
monitoring of the Internet is done other than Smith and associates.
At Exhibit 7 at page 73 McShane falsely says that "he doesn't know"
is magnetic copies of the Internet monitoring are kept, despite his
and later Carnahan's testimony that he and Kobrin were the sole
supervisors of such monitoring since January of 1995. He testifies
falsely later on this page that "he doesn't believe" that Smith
keeps any kind of auxiliary log of the downloads, once again, in
contradiction to the later testimony of Carnahan and Smith. Exhibit
7 at page 85 and 86, McShane falsely says that he is the monitor of
the Internet, once again actively concealing the existence of
Carnahan and Smith. Exhibit 7 at page 95 he admits to getting
reports on the monitoring virtually every day. Exhibit 7 at page
134 he once again conceals the scope and identity of the monitoring.
He knows ver well he could answer the question about the Internet by
consulting the vast data horde as collected and maintained by
Carnahan and Smith. Exhibits 7 at page 164 and 165 show that McShane
actually obtains postings from many different sources other than the
Carnahan and Smith, or else he is still trying to actively conceal
their data compilation.
9. The attached Exhibit 8 is the deposition
under penalty of perjury of Jean Carnahan conducted April 16, 1998.
Exhibit 8 at page 10 she admits to be the custodian of records to
the Internet monitoring. Exhibit 8 at page 11 she admits that she
has done this monitoring from February 20, 1995 through December,
1995. Exhibit 8 at page 13 and 14 she admits that her supervisors
for this monitoring were Warren McShane and Helena Kobrin. A third
party, Linda Hamel only had the role of confirming that she carries
out McShane's instructions. Exhibit 8 at page 15 she admits
paramilitary rank in a scientology organiztion. Exhibit 8 at page 19
she admits maintaining all Internet records of
alt.religion.scientology. Exhibit 8 at page 20 she admits to keeping
all magnetic records of her monitoring. Exhibit 8 at page 49 she
explicitly admits using the personal Internet account of Helena K.
Kobrin "HKK" for her monitoring. Exhibit 8 at page 52, she admits to
obtaining use of the account after consulting personally with Helena
K. Kobrin. Exhibit 8 at page 55 through 57 she admits that McShane
supervised her and frequently consulted with her during her period
of monitoring. Exhibit 8 at page 106 and 107 she admits to keeping
other written records, which were not disclosed by the plaintiff.
10. The attached Exhibit 9 is the deposition under penalty of
perjury of Rhea Smith conducted April 16, 1998. Exhibit 9 at page 7
and 8 she admits to monitoring the Internet from the very end of
December 1995 to the present. Exhibit 9 at page 10 she admits to
downloading "everything" from the relevant Internet newsgroups.
Exhibit 9 at page 12 and 13 she admits that McShane personally
supervised her work "two to three times a week" also on 9 at page 13
she admits to keeping a full magnetic record of such downloads.
Exhibit 9 at page 27 she admits to sending reports directly to
Helena K. Kobrin. Exhibit 9 at page 28 she admits that no one else
is doing this monitoring work for RTC. Exhibit 9 at page 30 and 31
she admits to making paper copies of about 25% of
alt.religion.scientology postings. Exhibit 9 at page 35 admits that
another data compilation resides with Allan Cartwright. Exhibit 9 at
page 51 she admits to keeping additional undisclosed logs of her
monitoring.
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.
Executed this 9th day of June, 1998, at Arcata, California.
______________________________________ GRADY WARD
1 DECLARATION OF GRADY WARD IN SUPPORT OF MOTION FOR ORDER TO SHOW
CAUSE WHY WARREN MCSHANE AND HELENA KOBRIN SHOULD NOT BE FOUND IN
CIVIL AND CRIMINAL CONTEMPT NO. C-96-20207 RMW
--
Further facts
about this criminal empire may be found at
Operation Clambake and FACTNet.
Subject: Move for Kobrin and McShane be held in Civil and Criminal contempt
From: grady@promisecreepers.org (Grady Ward)
Date: Sun, 14 Jun 1998 19:59:22 GMT
Grady Ward grady@gradyward.com (707) 826-7712
2F07 AD38 11D4 8493 7143 5E1C E699 2FF2
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