Perhaps this would be too much of a claim to make, but I will do it anyway. :-) I think this document might be the second best to (*)'s (That's David Miscavige from the rear) outburst in deposition about being publicly buggered. (TR 1.1)
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA GENERAL CIVIL DIVISION
ESTATE OF LISA MCPHERSON, by and through the Personal Representative, DELL LIEBREICH,
Case No. 00-5682-CI-11 Division 11
ST PETERSBURG, BRANCH
KARL.EEN F. De BLAKER CLERK CIRCUIT COURT
CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, JANIS JOHNSON, ALAIN KARTUZINSKI and DAVID HOUGHTON, D.D.S.,
AND RELATED COUNTERCLAIM.
OPPOSITION OF DEFENDANT CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION TO H. KEITH HENSON'S MOTION FOR LEAVE TO FILE AMICUS BRIEF
Defendant Church of Scientology Flag Service Organization (the Church) hereby opposes H. Keith Henson's ("Henson") Motion for Leave to File his "Amicus Brief." Henson is a fugitive from justice, having fled the State of California prior to sentencing following his conviction of a hate crime against Scientologists. As such, he should have no rights to submit any material to this Court, particularly an "Amicus Brief' that has nothing to do with any issue before the Court, is objectionable under multiple Rules of Evidence, violates a copyright injunction entered against him, and is truly not an amicus brief at all.
H. Keith Henson, who has submitted a proposed "Amicus Brief' to this Court, is a fugitive from justice. In the year 2000, Henson was involved in extensive harassment of Scientologists, involving threats of violence to individual Scientologists, including those living, working and studying their religion at a Scientology facility in Riverside County, California. 'Among other things, Henson posted to the Internet the GPS readings of various church facilities, including what he believed to be the office of David Miscavige, and suggested that these were appropriate targets for missiles or other weapons. As a result, the Riverside County District Attorney pressed criminal charges against Henson and on April 26, 2001, a jury convicted Henson of violation of the California hate crime statute, California Penal Code §422.6, arising out of his threats of violence against Scientologists. (Ex. A, Conviction; Ex. B, Statute.)
The Riverside Criminal Court continued Henson's personal recognizance bail and scheduled his sentencing for May 16, 2001. Instead of appearing, Henson fled to Canada and, shortly before his scheduled sentencing, publicly stated on the Internet that he had no intention of appearing for his sentencing:
"I will not be in Riverside May 16. In fact I would have to be a complete idiot to be in Riverside May 16! Bon Soire! Eh? Keith Henson."
The Riverside Court ultimately sentenced Henson in absentia to one year
' Henson was never a Scientologist. He, like Minton, became involved in antiScientology activities through the Internet and was on the Advisory Board of the Lisa McPherson Trust.
incarceration (Ex. D) and, thereafter, the appellate division of the California Superior Court dismissed Henson's appeal of his conviction under the principles of the fugitive disentitlement doctrine. (Ex. E.) The Riverside Court also issued a "no bail" arrest warrant for Henson, and in addition, initiated further criminal charges against Henson for his refusal to appear for sentencing. (Ex. F.) The Canadian authorities also arrested Henson for failing to report his conviction when he entered Canada, and issued a "Deportation Order." (Ex. G.) That order, however, has not been executed because Henson promptly filed a request to the Canadian government for political "asylum," alleging that both the United States of America and the State of California have violated Henson's human rights. (Id.) Thus, until his asylum request is heard and finally determined, Henson remains in Canada, a fugitive from the State of California.
Prior to his hate crime arrest, Henson was already an adjudicated copyright infringer. He was found by the U.S. District Court, Northern District of California, to have violated the copyright in a religious work known as NOTs 34 ("NOTs" is an acronym for New Era Dianetics for OTs) to which Religious Technology Center (RTC) owns the exclusive rights, by posting it twice on the Internet. The court entered a Permanent Injunction against Henson (Ex. H), and a jury later found the infringement to be wilful and awarded RTC $75,000 in statutory damages for Henson's infringement. 2
RTC's copyright counsel believe this may have been the largest amount of statutory damages ever awarded for a single infringement. To anyone who attended the trial, it is obvious that the amount of the award was a direct result of Henson's flippant and unrepentant attitude, as reflected in his video deposition, which was played at the trial, where he stated that the whole matter was "a great game" and "an extremely amusing thing" for him. (Ex. I, Henson Depo., May 8, 1996, at 63.) At the end of his testimony, when Henson was asked if he would do the same thing again, he responded "At least not openly." (Ex. J, at 635.)
(Ex. K.) The judgment against Henson was affirmed by the Ninth Circuit. (Ex. L.)
Henson is one of several individuals who used the Internet to post RTC's unpublished, copyrighted works. The specific document posted by Henson to the Internet was a confidential work pursuant to Scientology doctrine, which had been stolen from a Church of Scientology several years earlier. Henson, in posting the document in 1996, was baiting the Church and RTC. As he later admitted, he was seeking to be sued in order to increase his own status in a small community of Internet copyright terrorists whose purpose was to harass RTC and other Scientology churches.
RTC was thus required to engage in considerable copyright litigation from 1995 through 1998 relating to acts by Henson and a few others with a similarly unlawful agenda. RTC obtained permanent injunctions against all of these infringements, including against several people imported to Clearwater by Robert Minton to participate in the Lisa McPherson Trust, whose names will be familiar to this Court: LMT Advisory Board member Henson; LMT employee, Grady Ward; F.A.C.T.Net, Inc. and LMT Advisory Board Members Lawrence Wollersheim and Arnaldo Lerma. Each of these persons received funding from Minton (Ex. M, Minton testimony, May 17, 2002, pp. 2024, 27-32).
While these individuals infringed RTC's rights by posting its works on the Internet, others violated those rights by copying the same unpublished works and gratuitously placing them into court files, publicly announcing that fact, and inviting
others to copy the material from the Court file. This required RTC and another church to engage in litigation to strike or seal the material from court files to prevent the court files from being a repository for copyright infringement. This practice began in a case that has also been mentioned to this Court, called Church of Scientology International (CSI) v. Fishman, a Los Angeles federal court case, in which some of these stolen unpublished works were gratuitously placed into the court files by attorney, Graham Berry, where they have been sealed. As mentioned in Henson's proposed brief, Graham Berry was also his attorney.
What Henson is doing here is exactly the same thing. Henson has submitted a rambling, and utterly irrelevant letter, that he styles an "Amicus Brief," to which he has attached a series of documents clearly irrelevant to any conceivable issue in this case. In those exhibits, he has purposely included two documents containing, in one case a portion, and in the other case all, of the very work which he is permanently enjoined from publishing.'
Henson's papers themselves are nothing more than a scandalous attack on the Church, the officials who prosecuted him and the jurists before whom he has appeared, the Pinellas County State Attorney, and anyone else he could think of.
Plaintiff's attorney also attempted the same tactic on April 16, 1997: having acquired some of the stolen NOTs works, Mr. Dandar filed a portion thereof as an attachment to a Request for Admissions. However, when he could not show that they were relevant, Judge Moody ordered them sealed until such time, if and when, they might be ruled relevant. (Ex. N.) The press was notified of and participated in those proceedings. Defendant notes that Lisa McPherson never had any exposure to these materials, as they are for a level far above that which she achieved, and they cannot possibly be relevant to any issue in this case.
The Church therefore submits that Henson's "Amicus Brief' should not be accepted by this Court and should be stricken from its files. ARGUMENT I. The "Amicus Brief' Should Not Be Accepted from a Fugitive Section 896.106, Fla. Stat., provides that:
A person may not use the resources of the courts of this state in furtherance of a claim in any related civil forfeiture action or a claim in a third-party proceeding in any related forfeiture action if that person purposely leaves the jurisdiction of this state or the United States; declines to enter or reenter this state to submit to its jurisdiction; or otherwise evades the jurisdiction of the court in which a criminal case is pending against the person. While on its face, the statute is not exactly applicable to Henson's "Amicus Brief," it obviously suggests a strong public policy on the part of this state to disenfranchise fugitives from taking advantage of the state's courts. On May 29, 2002, the Third District applied this statute, that was enacted in 2000, in deciding Tejada v. In re Forfeiture of the Following Described Property: $406,626.11 in US. Currency, 2002 WL 1058509 (Fla. 3" DCA). The court dismissed the fugitive's claim to the seized funds, related to money laundering, and held that the dismissal would be warranted with or without the statute, which merely codified the existing law on this subject, citing to Magluta v. Samples, 162 F.3d 662, 664 (11`" Cir. 1998). Magluta stated that dismissal of a civil action on fugitive disentitlement grounds requires that the party's fugitive status have a connection to his civil action. The situation here does not conform precisely to the case law or the statute, as Henson is not even a party. However,
1. he is a fugitive and was convicted in California of a hate crime;
2. as a non-party attempting to file a blatantly improper "Amicus Brief," there is even less reason to permit him the rights afforded citizens who comply with the laws;
3. his submission of the "Amicus Brief' is definitely related to, and a part of, his ongoing scheme of harassing and threatening the Scientology religion and its parishioners and churches, and of violating their rights; and
4. the trial court undoubtedly has discretion to prohibit a fugitive from justice from filing an "Amicus Brief."
Henson's brief therefore should not be accepted by the Court.
II. The "Amicus Brief' Should Be Rejected Because It Violates Several Rules of Evidence and Rules of Court
Henson's "Amicus Brief' also:
1. Offers various assertions of fact which show an almost total lack of personal knowledge in violation of Fla. Stat. § 90.604;
2. Has no relevance to any matter pending before this Court, in violation of sections 90.401 and 90.402;
3. Does not properly authenticate materials, such as Internet postings under pseudonyms and other unidentified Internet print-outs that it attaches, in violation of section 90.901;
4. Attaches supposed magazine and newspaper articles and a letter written by
Graham Berry to various government representatives, which are clearly not
FN 4 The only thing the letter is conclusive evidence of is that the vexatious litigant and sanctions orders against Henson's attorney, Graham Berry and his Bar suspension, (Ex. O), all of which have been alluded to before this Court, were well deserved.
evidence of anything and can, at best, be hearsay, in violation of sections 90.801 and 90.802; and
5. Contains unadulterated hearsay from one end to the other, in violation of the same rules.
With all of these infirmities, and especially the complete lack of relevance, it is clear that the scurrilous and vile document and exhibits that Henson gratuitously submits, and for which he seeks to achieve the status of an "Amicus Brief," is highly prejudicial, while being probative of nothing, and should be stricken pursuant to section 90.403. Sabol v. Bennett, 672 So.2d 93, 94 (Fla. 3' DCA 1996) (evidence must be relevant and not merely submitted to create prejudice); Pausch v. State, 596 So.2d 1216, 1218-1219 (Fla. 2"d DCA 1992).
Moreover, the only Florida Rule relating to the filing of amicus briefs, is Rule 9.370 of the Rules of Appellate Procedure. No civil rule addresses, authorizes or apparently contemplates an amicus brief. This is not to say that under some circumstances briefs by genuine amici could not be useful to a civil trial court's determination of an important issue that could affect them or affect society. But the issues presently before the Court certainly do not fit that category, as the paper submitted by Henson is merely a collateral attack on Scientology having nothing to do with any issue before the Court.
Indeed, if the irrelevant but scurrilous and inaccurate assertions made by Henson
are permitted, the Church would necessarily have to respond with extensive refutations of the allegations and assertions made. Such response would be lengthy, expensive and pointless, moving the parties and the Court no closer to a resolution of the issues at hand. Responding would also be a great burden to the Church in light of the many generalized accusations made by Henson, and would greatly distract from the preparations and presentations which are actually material to the pending motion.
III. Henson Should Not Be Permitted to Use the Court's Files to Encourage Infringement of the Very Work He Infringed and to Violate the Permanent Injunction
It would appear that Henson's principal purpose in attaching the exhibits containing NOTs 34 is to foster further copyright infringement of the same work that resulted in the federal judgment, including a Permanent Injunction, against him.' This Court should not permit him to use its files for such a purpose, especially when the filing to which he attaches them has nothing to do with any matter that is before this Court, is submitted by a fugitive, and itself violated the permanent injunction. 6
WHEREFORE, the Church submits that Henson's "Amicus Brief' should not be filed at all. At a minimum, Exhibits A and B of Henson's "Amicus Brief' should not be
FN 5 Indeed, RTC currently has pending in the Northern District of California Federal Court a motion for contempt against Henson for other recent violations of the Permanent Injunction. His filing here may be a further contempt.
FN6 During the pendency of the copyright case, Henson attempted to obtain approval from the District Court to send a copy of NOTs Series 34 to the Food and Drug administration. The Court denied his motion. While finding that he had a right to write to the Food and Drug Administration, he did not have the right to violate the Court's injunction or to infringe RTC's copyright by sending the work to that government agency. (Ex. P.)
filed, should be stricken and not permitted to be placed in the court record.
DATED: July 8, 2002 Respectfully submitted,
Eric Lieberman Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C. 740 Broadway, 5th Floor New York, NY 10003-9518 Telephone: (212) 254-1111 Facsimile: (212) 674-4614
Morris Weinberg, Jr. Florida Bar Number 0486401 Lee Fugate Florida Bar Number 0170928 ZUCKERMAN, SPAEDER, LLP 101 E. Kennedy Blvd., Suite 1200 Tampa, Florida 33602 Telephone: (813) 221-1010 Facsimile: (813) 223-7961
Kendrick L. Moxon Helena K. Kobrin Florida Bar Number 0259713 MOXON & KOBRIN 1100 Cleveland Street, Suite 900 Clearwater, Florida 33755 Telephone: (727) 443-5620 Facsimile: (727) 443-5640
ATTORNEYS FOR CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have caused the foregoing OPPOSITION OF
DEFENDANT CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION TO
H. KEITH HENSON'S MOTION FOR LEAVE TO FILE AMICUS BRIEF to be served to
counsel on the below service list, on this 8t' day of July, 2002, as indicated below.
Kerman G. Dandar, Esq. VIA HAND Dandar & Dandar, P.A. DELIVERY 1715 N. Westshore Blvd., Suite 750 Tampa, FL 33607 Attorney for Plaintiff
Luke Lirot, Esq. VIA HAND 112 East Street, Suite B DELIVERY Tampa, FL 33602 Attorney for Plaintiff
Bruce G. Howie VIA U.S. Ludin, Howie and Werner MAIL 5720 Central Avenue
St. Petersburg, Florida 33707 Attorneys for Robert Minton
Ronald P. Hanes, Esq. VIA U.S. Trombley & Hanes, MAIL 707 N. Franklin Street 10th Floor Tampa, FL 33602 Attorney for Janis Johnson
Douglas J. Titus, Esq. VIA U.S. George & Titus MAIL Post Office Box 3240 Tampa, FL 33601-3240 Attorney for Alain Kartuzinski
H. Keith Henson 2237 Munns Ave. Oakville, ON L6H3M9 Canada