Move for Kobrin and McShane be held in Civil and Criminal contempt

Newsgroups: alt.religion.scientology,misc.legal
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

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

--
Grady Ward grady@gradyward.com (707) 826-7712
2F07 AD38 11D4 8493 7143 5E1C E699 2FF2