UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP79M00467A000300130009-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 55
• Document Creation Date: December 16, 2016
• Document Release Date: May 2, 2003
• Sequence Number: 9
• Publication Date: March 11, 1976
• Content Type: COURTFILE

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1 KIPPERMAN, SHAWN & KEKER
WILLIAM A. BROCKETT
2 407 Sansome Street, Suite 400
San Francisco, California 94111
3 Telephone: [phone]
4 FRIEDMAN & SLOAN
STANLEY J. FRIEDMAN
5 680 Beach Street, Suite 436
San Francisco, California
6 Telephone: [phone]
7 MARCUS S. TOPEL
Attorney at Law
81360 Pine Street, Top Floor Suite
!San Francisco, California 94104
9 Telephone: [phone]
10 Attorneys for Plaintiff
11 UNITED STATES DISTRICT COURT
121 NORTHERN DISTRICT OF CALIFORNIA
131
LOTEPHANIE KIPPERMAN, )
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151 Plaintiff, )
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Defendants. )
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171 JOHN McCONE; RICHARD HELMS; JAMES
SCHLESINGER; J. EDWARD DAY; WILLIAM
18g COTTER; THOMAS KARAMESSINES; GEORGE
iBUSH, DIRECTOR OF CENTRAL INTELLIGENCE
19 AGENCY; JOHN MITCHELL; UNITED STATES
!OF AMERICA; and an unknown number of
20 unnamed present and former employees
of the United States,
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NO. C-75-1211 CBR
PLAINTIFF'S RESPONSE AND OPPOSITION
TO DEFENDANTS' MOTIONS FOR ?
DISMISSAL OR FOR SUMMARY JUDGMENT
(WITH SUPPORTING AFFIDAVITS)
OGC Has Reviewed
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TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES
INTRODUCTION
I. DATA AVAILABLE TO PLAINTIFF PROVIDES A
SUBSTANTIAL BASIS FOR HER BELIEF THAT
HER MAIL HAS BEEN OPENED, PHOTOGRAPHED
AND DELAYED
1
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A. As A Repeat Correspondent, Plaintiff
Has Cause To Believe That Her Mail
Was Tampered With. 2
B. Statistics And Facts Provided By CIA
Employees Are Internally Inconsistent. 8
II. JURISDICTION AND VENUE 12
A. Defendants' Mail Intercept Program
Wronged Plaintiff In A Manner Creating
A Legally Cognizable Right, And Such
Rights Are Properly Vindicated In The
Federal Courts.
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1. Plaintiffs mail was tampered with. 12
2. The opening, photographing, or
delay of Plaintiff's mail gives
rise to a cause of action. 13
a. Individual Defendants.
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b. Defendant United States. 18
B. Defendants' Joint Venture Carried
Out Acts In California, And Availed
Itself Of The Benefits Of California
Services and Laws; Venue Is Properly
Laid In The Northern District of
California. 21
1. Defendants' joint venture was
doing business in the Northern
District of CAlifornia. 22
III. MISCELLANEOUS QUESTIONS.
CONCLUSION
APPENDIX A - APPENDIX E
AFFIDAVIT OF PLAINTIFF
AFFIDAVIT OF COUNSEL
Exhibits A - E
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TABLE OF AUTHORITIES
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Statutes
1 MOORE'S FEDERAL PRACTICE, V 0.142[5.-2]
1 0.142[7]
5 U.S.C. ? 551
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5 U.S.C. ? 552
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5 U.S.C. ? 703
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18 U.S.C. ? 1701
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18 U.S.C. ? 1702
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18 U.S.C. ? 1703
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18 U.S.C. ? 2511
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28 U.S.C. ? 1339 V
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28 U.S.C. ? 1346
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28 U.S.C. ? 1346(a)(2)
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28 U.S.C. ? 1391(c)
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28 U.S.C. ? 1391(e) V
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39 C.F.R. ? 233.2
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39 U.S.C. ? 3623 V
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39 U.S.C. ? 4057
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49 F.R., p. 11579
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F.R.C.P., Rule 8(3)(2)
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"Use and Abuse of Statistics", by W.J.
Reichmann, Pelican Books, 1973, pp. 204-205
8,
11
Cases
Arizona State Department of Pub. Welfare, the
Department of H.E.W.,
449 F.2d 456 (9th Cir. 1971)
20
Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics,
403 U.S. 388 (1971)
Clausen & Son, Inc. v. Theo. Hamm Brewing
Co.,
395 F.2d 388 (8th Cir. 1968)
Committee for G.I. Rights v. Callaway,
518 F.2d 466 (D.C. Cir. 1975)
16(n.9a), 17, 18,
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pprove
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Cornelison v. Chaney,
16 Cal. 3d 143 (1976)
Cort v. Ash,
U.S. , 95 S. Ct. 2080 (1975)
Dawn v. Sterling Drugs, Inc.,
319 F. Supp. 358 (C.D. Cal. 1970)
Denver, Rio Grande & Western R. Co. v.
Bthd. of Railroad Trainmen,
387 U.S. 556 (1967)
Duple Motor Bodies, Ltd. v. Hollingworth,
417 F.2d 231 (9th Cir. 1969)
Farmers Elevator Mut. Ins. Co. v. Carl J.
Austad & Sons, Inc.
343 F.2d 7 (4th Cir. 1965)
Halderman v. Pittenget,...-,-
391 F. Supp. 872:(?C. Penn. 1975)
Hatcheley v. United States,
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J. I. Case v. Borak,
377 U.S. 426 (1964)
Katz. v. United States,
389 U.S. 347 (1967)
Kletschka v. Driver,
411 F.2d 436 (2d Cir. 1969)
McCowen v. United States,
376 F.2d 122 (9th Cir. 1967)
Paton v. LaPrade,
524 F.2d 862 (3d Cir. 1975)
Paton v. LaPrade,
382 F. Supp. 1118 (D. N.J. 1974)
Penrod Driving Co. v. Johnson,
414 F.2d 1217 (5th Cir. 1969)
Rodway v. U.S. Dept. of Agriculture,
514 F.2d 809 (D.C. Cir. 1975)
Rothman v. Hospital Service of Southern
California,
510 F.2d 956 (9th Cir. 1975)
Sheard V.
40 Cal.
Silberg v
111 Cal.
Superior Court,
App. 3d 207 (1974)
. California Life Ins. Co.,
3d 452, 462 (1974)
State of Washington v. Udall,
417 F.2d 1310 (9th Cir. 1969)
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United States ex rel. Pope v. Hendricks,
326 F. Supp. 699 (E.D. Penn. 1971)
United States v. Short,
240 F. 2d 292 (9th Cir. 1957)
United States v. Van Leeuwen,
397 U.S. 249 (1970)
United States v. Williams,
F.2d (9th Cir. Jan. 26, 1976)
Wyandotte Transp. Co. v. United States
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389 U.S. 191 (1967) ?18
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P
1 KIPPERMAN, SHAWN & KEKER
11 WILLIAM A..BROCKETT
2 407 ?Sansome Street, Suite 400
San Francisco, California 94111
3 Telephone: [phone]
4 11
5 i!
6
7 P
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FRIEDMAN & SLOAN
STANLEY J. FRIEDMAN
680 Beach Street, Suite 436
San Francisco, California
Telephone: [phone]
MARCUS S. TOPEL
Attorney at Law
8 11 360 Pine Street, Top Floor Suite
San Francisco, California 94104
Telephone: [phone]
9
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Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
13
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14! STEPHANIE KIPPERMAN,
15!
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17i JOHN McCONE; RICHARD HELMS; JAMES
SCHLESINGER; J. :EDWARD DAY; WILLIAM
18 COTTER; THOMAS KARAMESSINES; GEORGE
! BUSH, DIRECTOR OF CENTRAL INTELLIGENCE
19 AGENCY; JOHN MITCHELL; UNITED STATES
OF AMERICA; and an unknown number of
20 unnamed present and former employees
of the United States,
VS.
Plaintiff,
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Defendants.
INTRODUCTION
25 Defendants' most recent motions for dismissal or summary
26 judgment rest in part upon the claim that Plaintiff's complaint
NO. C-75-1211-CBR
PLAINTIFF'S RESPONSE
AND OPPOSITION TO
DEFENDANTS' MOTIONS
FOR DISMISSAL OR FOR
SUMMARY JUDGMENT .
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is a "sham", and partly upon the claim that, even if a cause of
action is made out, jurisdiction and venue do not exist in
this District.
Raw data, supplied by Defendants themselves and contained
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in the "Report to the President by the Commission on CIA
activities within the United States" ("Rockefeller Report"),
demonstrates the good faith nature of each of the three counts
in the Third Amended Complaint, and raise grave questions about
whether or not the Central Intelligence Agency has validly
declared with confidence that Stephanie Kipperman's mail was not
opened or photographed.
The arguments about venue and jurisdiction made by
Defendants seem to track those previously made, with the addition
of assertions about the validity of COUNT THREE, .insofar as it
relies upon 28 U.S.C. ? 1339 (postal matters) and S 1346 (the
Tucker Act).
The first portion of this Memorandum will set forth the
statistical reasons why Plaintiff's claim is made with sufficient
basis for belief that she has been wronged; the second portion
will deal with jurisdiction and venue.
It is noted that only Defendant UNITED STATES has commented
(briefly) upon Plaintiff's proposed discovery. If this discovery
plan in any way could be viewed as placing an unreasonable burden
upon the Government, or jeopardizing official secrets, it is
suggested that this should be brought to the attention of the
Court at the hearing on these motions.
DATA AVAILABLE TO PLAINTIFF PROVIDES A
SUBSTANTIAL BASIS FOR HER BELIEF THAT
HER MAIL HAS BEEN OPENED, PHOTOGRAPHED
AND DELAYED.
A. As A Repeat Correspondent, Plaintiff Has Cause To
Believe That Her Mail Was Tampered. With.
Plaintiff's Third Amended Complaint has been characterized
variously by Defendants as a "sham" an act of "desperation",
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and a "last effort in her crusade". Much is made of the inabilit
of counsel for Plaintiff to directly contravene affidavits filed
by CIA employees.
Plaintiff admittedly remains unable to directly contravene
affidavits filed by any CIA employee or operative which rely upon
CIA files for their content. Until discovery of those files is
permitted to Plaintiff -- and such discovery has been stoutly
resisted throughout this proceeding -- Plaintiff cannot directly
affirm or deny the conten1 of those unseen files.
Plaintiff has been able to rely upon the Rockefeller Report
and news stories which quote knowledgable officials. See
Affidavit of Counsel, accompanying this response.
Hampered by the reluctance of Defendants to provide any
detailed information, Plaintiff nonetheless believes that there
is a substantial possibility that she has been aggrieved in three
separate ways: Opening and photographing of her mail; photo-
graphing the exterior of her envelopes: and examination of her
mail by unauthorized persons, with concomitant delay.
A plaintiff need not be certain a fact is true before
alleging it in a complaint. The provision of F.R.C.P., Rule 8(e)
42), allowing pleading in the alternative, or hypothetically,
demonstrates that some degree of certainty below 50% is acceptabl .
There are no hard and fast rules setting forth a "threshhold
confidence lever!, but the standards for awarding summary judgmen
provide guidance. See, Dawn v. Sterling Drugs, Inc., 319 F. Supp
358 (C.D. Cal. 1970)(no summary judgment if a scintilla of
evidence supports the theory of the non-moving party); Clausen &
Sons, Inc. v. Theo. Hamm Brewing Co., 395 F. 2d 388 (8th Cir.
1968)(no summary judgment if there is the slightest doubt as to
a factual dispute or genuine issue of fact.)
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Plaintiff's logical inferences from the data available
to her provide far more than a scintilla of evidence. Raw data
indicates that:
I. The chance that her mail was opened at some time
during her years of correspondence is at least one in six and
may be more likely than not.
2. It is extremely likely (over 90% probability) that
her mail was photographed at some time during her years of
correspondence.
3. It is virtually certain that her mail was delayed
and examined in an unauthorized fashion.
The self-serving declarationscf the CIA and its employees
do not undercut this position, at least as long as all Defendants
remain crouched behind the stone wall of non-disclosure. As
discussed below, the Freedom of Information Act data provided by
the Affidavit of Ethel Mendoza raises grave doubts about whether
the CIA's record keeping has been as complete as heretofore
claimed (or in the alternative whether Plaintiff has been apprised
of the true facts).
Plaintiff has framed her latest pleading in three counts,
because the wrongs. she alleges are discrete, and can be assigned
a different degree of probability. Additionally, Plaintiff cannot
allege in good faith that she suffered substantial damages with
regard to the delay in examination of her mail. Therefore, she
has claimed only nominal damages for such delay ($5.00 for each
instance), and COUNT THREE rgiPs upon different jurisdictional
statutes.
Taking the counts in reverse order, COUNT THREE of the
Third Amended Complaint (hereinafter "TAC"), the Affidavit of
Sydney Stembridge, and the Rockefeller Report, demonstrate the
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virtual certainty that Stephanie Kipperman's mail was channelled
through the CIA's intercept section, and examined. We are not
told in the Stembridge Affidavit what proportion of mail to the
Soviet Union passed through New York postal facilities during
weekends, after normal business hours, and on holidays. It is
a fair assumption that the bulk of the Soviet-bound mail travelle
through those facilities during regular business hours. As
stated in the NOTICE OF IDENTITY OF PLAINTIFF, dated December 19,
1975, Stephanie Kipperman wrote on an average two to four letters
a year to the U.S.S.R., and received a like number from the
U.S.S.R. Being most generous to the Defendants in our
assumptions -- as will be the case throughout the statistical
analysis -- the lower figure, two letters a year, is assumed.
Plaintiff, therefore, has sent at least twenty-four letters and
received at least twenty-four letters, during the overlap period
of her correspondence with the intercept program, 1960-1973. The
accompanying Affidavit of Plaintiff demonstrates that all, or
nearly all, of the letters she sent to the U.S.S.R. were airmail.
Furthermore, virtually all of the letters sent to her were also
airmail.
Since Defendants had to make some kind of physical examina-
tion of the letters passing through their hands before
determining which letters to photograph or open, Plaintiff sub-
mits that it is certain that some (and probably most) of the
letters to and from her were delayed and handled in unauthorized
fashion.
Next, we turn to COUNT TWO, the photographing of the
exteriors of envelopes. Defendants state that the HTLINGUAL
program photographed 9.55% of the envelopes passing through the
intercept stations. It will not unduly distort the following
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statistical analysis to round this estimate off to 10%, for
ease o-f computation. It is assumed that the photography of
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"covers" was largely random. -
Each time Plaintiff sent mail to or received mail from,- the
Soviet Union, she properly assumes that there was a 1/10 chance?
that such maawculd be photographed. For purposes of this
lawsuit and her good faith claim, the important question is:
What are the probabilities that at least one of
she sent or received from the Soviet Union, had
the letters that
its
photographed? The calculation is a simple one, and
the Court can take judicial notice of.
Working on the premises that Stephanie Kipperman sent and
received 48 letters (the 'lowest estimate) and that there was
1/10 chance of illegal photography with each sending, one can
determine the probability of interception at least once by
application of the "Multiplication Law". One takes the
probability, on each sending, that Plaintff's mail was not photo-
graphed, and multipiiesthat fraction times itself for the number
of occurrences in question. The resulting fraction is then sub-
tracted from 1 and converted to a percentage value. In this
case, there was a 9/10 probability that any individual letter
was not photographed j the simple formula would be (..9) where "n"
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equals the number of occurrences. For 48 letters, the
envelope
one which
a
1. This assumption is a reasonable one, at least until Defendant
suggest some other procedure. The mail "watchlist", on an
average, contained approximately 300 names (Rockefeller Report,
p. 107). Making a generous estimate that each of these names on
the watchlist sent and received 52 letters each year, and that
all of these letters were photographed, at least on the exterior,
the total number of such photographs during 20 years would be
312,000, only a small share of the 2,705,726 total exteriors
photographed.
2. To find the probability of an event happening at least once
(continued on next page)
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calculation (simple to make on a hand-held calculator) yields
the information that Plaintiff can reasonably believe that it is
99.36% certain that at least one of her letters had its exterior
photographed.
By a similar calculation -- and this beaks upon the CIA
"disclosure" in response to Freedom of Information Act inquiries
after only seven letters are sent by an individual, it is more
likely than not that at least one of the individual's letters
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was photographed.
Defendants may protest that the CIA used some special factors,
other than the watchlist, which would have excluded random
photography of mail passing through their operation. If this is
so, it is properly the subject of the full discovery which
Plaintiff has been urging throughout this proceeding. Plaintiff
notes that the Rockefeller Report, p. 112, states that the mail
project generated a_computerized record system containing
2,000,000 entries. If all, or the bulk of those entries, are
names, the random quality of information collected is manifest.
It will thus be seen that the "bald-headed man" hypothesis
over a sequence of independent periods, one takes "certainty"
as = 1. Then the chances of the event not happening equal
1 x, where x = the Probability of the event occurring. These
probabilities of non-occurrence are multiplied together as many
times as there are.iudependent events. The result is the
likelihood of the event not happening at all over "n" events.
This result is subtracted from one, to yield the probability of
the event happening one (or more) times.
3. And according to earlier COLBY/MENDOZA affidavits, the names
on photographed envelopes become part of the CIA files.
4. The reference in the Rockefeller Report to a computerized
record system is at odds with statements made by counsel for
Defendants in court, and by the Affidavit of WILLIAM COLBY, filed
in this action, dated January 12, 1976, which state that the
comprehensive record of the mail project is contained in a
microfilm program. This disparity should be resolved by the
Court.
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61j letter being opened was .76%, the forumula (.9924)11 is used. For
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rests on strong statistical ground in this action.
Finally, COUNT ONE, the "ivory snow" count, loses much of
its defense-claimed purity when subjected to a similar statistica
analysis. To determine the probability that at least one of
7 the low estimate of 48 letters, there is a 30.7% chance that at
8 least one of Plaintiff's letters was opened. For the maximum
9! estimate of letters sent, 96, there is a 52% probability that
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10 Plaintiff's mail was opened -- more likely than not!
II I Doubtless non-random facts, such as the use of a "watchlist"
121 and other unvoiced criteria, would skew this last analysis in
13 favor of Defendants. Nonetheless, the point remains that in the
141 face of the complete reluctance of Defendants to afford Plaintiff
1 15 discovery, she can only rely upon the Rockefeller Report and
16 news reports. These sources provide her good.faith belief that
17 there is a significant chance that her mail has been opened.
181 Attached to this Memorandum is an extract from "Use and
19 Abuse of Statistics", by W. J. Reichmann, Pelican Books, 1973,
20, pp. 204-205, discussing the Multiplication Law. As will be seen,
21 the results, as here, are often non-intuitive. For instance, if
22 30 of the lawyers in this action compared birthdates, it is
23 probable that we would find two of us with the same birthdate.
24! B. Statistics And Facts Provided By CIA Employees Are
25 Internally Inconsistent.
26 In the most recent Affidavit of Ethel Mendoza, dated
27 February 25, 1976, Defendant UNITED STATES provides for the
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29 5. The adding machine tape containing the calculations described
is duplicated and attached as Appendix "B", with an
30 explanation of the computation next to the tape.
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first time information not already on public record. If this
thread of information is grabbed and firmly pulled, one may
discern the tightly woven fabric of Defendants' claims beginning
to come unraveled. Plaintiff suggests that further discovery
will reveal that their confident claims are threadbare.
According to the Affidavit of Ethel Mendoza, the ratio of
the number of letters (presumably documents contained in the
interior of an envelope) and the number of mail covers (presumably
photographed envelopes) are exactly the opposite of the ratio
one is led to expect from the Affidavit of Sydney Stembridge
and the Rockefeller Report. According to those latter documents,
over ten times as many exteriors were photographed as interiors
were examined and photographed. Yet/ Ethel Mendoza tells us that,
in response to requests from interested individuals, records
turned up 566 letters and 22 mail covers. Plaintiff can only
hypothesize that this is a carelessly drawn affidavit, and should
read 566 mail covers, 22 letters; if not, the discrepancy is
possible to explain only by drawing the conclusion that, contrary
to prior statements under oath by Defendants, all names
extracted by mail "cover" were not collected in a central,
"comprehensive" file.
Furthermore, statistical sampling techniques, which should
be extremely accurate in this matter, since they cannot be
rendered invalid by changes in public opinion (as in presidental
polls), leave unexplained the extremely low number of affirmative
responses to the approximately 6,000 requests for information
directed to the CIA.
Certain assumptions must be made in order to test the
figures provided by Ethel Mendoza. Some of these assumptions
are gross (in a statistical, not descriptive, sense) only because
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Defendants continue to refuse to be forthcoming with details. To
enable Plaintiff to attempt an evaluation of the Mendoza figures,
the following assumptions were made:
1. It is assumed that the 6,000 persons making request-
of the CIA represent a normal cross-section of correspondents
with the Soviet Union.
2. It is assumed that the CIA intercept program photo-
graphed envelopes of approximately 10% of the correspondents with
6/
the Soviet Union.
3. It is assumed that the CIA conducted &thorough
records check of all HTLINGUAL records of requesting individuals.
If, in a large total population, 10% of the persons containe
therein share a common trait (in this case, illegal photography
of their correspondence) in a large sample of 6,000 people
selected from that general population, it is statistically
unthinkable that only 2% of the sample should have the trait
described. Yet according to Defendants, this is the case here.
In the face of admissions that 10% of all envelopes passing
through CIA intercept points were photographed, and in the face
of the Rockefeller Report statement that over 2,000,000 items
were collected in the HTLINGUAL computer program, the Government
states, with some pride apparently, that the "vast majority" of
6. This assumption is not undercut by the fact that many of the
names photographed would be duplicates. It is to be recalled
that the 27,000,000 letters passed through the CIA's hands cannot
be taken to represent 27,000,000 correspondents. Rather, because
of persons like Stephanie Kipperman, who regularly wrote to and
received mail from the Soviet Union, it is more probable that the
total number of correspondents would be a fraction of that
(perhaps 4 or 5,000,000 following the four-letters-per-person
ratio revealed in the Freedom of Information Act disclosure).
Furthermore, each time an envelope exterior is photographed, in
the normal course of events, at least two names would be
collected for inclusion in the CIA data bank: Addressee and "-
Addressor (and in some cases, i.e., husband and wife, more than
two names)
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the searches of the HTLINGUAL progrz.m (in response to FOIA or
Privacy Act inquiries) revealed no records or entries.
"Use and Abuse of Statistics", supra, pp. 234-235, attached
hereto as Appendix "C", discusses sampling and degree of certaint
Using the formula at page 234, in substituting the values of
p = 10%, q = 90%, and n = 6,000, we discover that the square root
of900 is approximately 3/8th and that we can, therefore,
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10%, plus or minus 1% with a confidence factor of 95%. Put
into simpler language, it would be extremely rare for a large
sample, such as that created by the Freedom of Information Act
requests, to vary sharply from the 10% figure of persons in the
general population whose mail is photographed. A variance of 8%
as here, can virtually be ruled out as a mathematical possibility.
Plaintiff can conceive of various explanations which might
explain this disparity in percentages. Perhaps a large portion o
the Soviet-bound mail passed through New York on Sundays, holiday
or after working hours. Perhaps a great proportion of the
photography was directed to names on the watchlist (small in
number though this list was). Perhaps the 6,000 people who wrote
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to the CIA were largely crackpots and cranks who had never-writte
the Soviet Union (although given the sophistication of persons
likely to respond to Freedom of Information Act legislation, it
would be more plausible to suppose the inquiries were made by
intelligent, regular correspondents with the Soviet Union.).
7. The statistical sampling computations are not as simple and
self-evident as the application of the Multiplication Law.
The Court is not asked to take judicial notice of the sampling
mathematics. Judicial notice should be taken of the normal
validity of sampling techniques and the unexplained wide
variation between expected result (10%) and actual result (2%).
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Barring those kinds of explanations -- which should be the
subject of the discovery Plaintiff has steadfastly insisted
upon Defendants have some explaining to do; Either large
numbers of persons whose envelopes were photographed have
slipped through the cracks, or the CIA's so-called "comprehensive
record check", is substandard, or the Court has been misled.
In light of the statistical anomolies, it would be premature
to dispose of this case by dismissal or summary judgment. The
glib assurances of Defendants and Defendants' employees must
be subject to the searching impartial scrutiny of normal civil
discovery procedures.
II
.JURISDICTION AND VENUE
A. Defendants' Mail Intercept Program Wronged Plaintiff
In A Manner. Creating A Legally Cognizable. Right, And Such Rights
Are Properly Vindicated In The Federal Courts.
1. Plaintiffs mail was tampered with.
This subject is touched upon again, because the majority of
Defendants continue to hammer home their point, in the arguments
upon-jurisdiction, that there can be no jurisdiction where
Defendants' actions in no way affected Plaintiff. The statistical
analysis above demonstrates that Plaintiff has a good faith
reasonably-held belief that her mail was delayed, photographed
and opened. The affidavits filed on behalf of Defendants raise
other interesting questions, including:
a. Is the "comprehensive" CIA file on the mail
intercept program contained on microfilm, or on a computer?
b. Why were such a small number of persons making
inquiry under the Freedom of Information Act given affirmative
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responses about CIA tampering with their mail?
c. Why, in the Freedom of Information Act respons
were the ratios of mail covered to mail openings the reverse of
the .ratios for the entire population of letters received?
d. Are the more than two million "items" in the
HTLINGUAL program names, or names plus other information?
2. The opening, photographing, or delay of
Plaintiff's mail gives rise to a cause ?of action.
The events complained of by Plaintiff create a cause of
action against the United States, and individual Defendants.
a. Individual Defendants.
Defendants individually named herein are properly before
this Court, regardless of the amount in dispute, under the
provisions of 28 U.S.C. ? 1339. That section, which has no .
requirement as to amount in controversy, states in its entirety
"The district courts shall have original
jurisdiction of any civil action arising
under any Act of Congress relating to the
postal service."
Plaintiff explicitly relies upon ? 1339 in COUNT THREE of her
Complaint. This is not an impermissible splitting of her cause
of action, since, as the numerous papers filed by Defendants make
clear, the delay of Plaintiff's mail and the photographing or
opening of that mail, are events which are not inescabably linked.
Rather, they are separate wrongs relying upon differing statutes
or constitutional provisions for their legal existence and
giving rise to a differing degree of damages. 18 U.S.C. S1701-
1703, 39 C.F.R. ? 233.2, and its predecessors, and 39 U.S.C.
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4057 - (repealed, as one of the Defendants point out, in 1970,
8. Essential provisions of this Section are now contained in
39 U.S.C. ? 3623.
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but applicable to the mail intercept prior to that date) are
some of the Acts of Congress under which this action arises.
Regulations issued by the postal service have the force and
effect of law. Rodway v. U.S. Dept. of Agriculture, 514 F. 2d
809 (D.C. Cir. 1975); United States v. Short, 240 F. 2d 292
(9th Cir. 1957). As discussed below, it is proper to infer a
civil cause of action from these statutes and regulations.
COUNTS ONE and TWO of the Third Amended Complaint rely upon
28 U.S.C. S 1331 for finding Federal subject matter jurisdiction
against the individual Defendants. The violations alleged here,
opening of mail and photographing of envelope exteriors (with the
accompanying creation of a CIA file), are significant, deliberate
violations of the Bill of Rights, and must, when punitive damages
are taken into account, be valued at more than $10,000. Paton v.
LaPrade, 524 F.2d 862,872 (3d.:Cit. a975)2(punitive daMages
awarded.formalicious .disregard of. plaintiff's. constitutional righ
even in the absence of actual damages).
Defendant MITCHELL scoffs at the notion that Plaintiff shoul
be entitled to anything but nominal damages for unauthorized mail
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openings (MITCHELL, p. 4). MITCHELL then goes on where other
Defendants fear to tread (p. 13), and boldly assertsthat all of
his actions were properly in discharge of his official duties and
suggests that "responsible Government officers" must be protected
from the harrassment and inevitable hazards of vindictive or ill-
founded damage suits." Plaintiff asks the Court to read again
Chapter 9 of the Rockefeller Report which she believes refutes
the remarkable contention by MITCHELL that the mail intercept
program was "business as usual".
Insofar as any mail openings occurred, Plaintiff's Fourth
Amendment rights have been violated. See United States V Van
Leeuwen, 397 U.S: 249 (1970). It is the
9. Hereinafter, Defendants' Motions To Dismiss The Third
Amended Complaint will be cited by Defendant's name only.
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modern trend of enlightened courts to view civil rights as
inherently worth more than the jurisdictional amount of S 1331.
Halderman v. Pittenger, 391 F. Supp. 872 (D.C. Penn. 1975). See
also, Committee for G.I. Rights v. Callaway, 518 F. 2d 466
(D.C. Cir. 1975)(where substantial rights are at stake, certainty
as to the amount of controversy is not necessary).
Here, the jurisdictional amount claimed contemplates punitive
damages as well as damages awarded for the violation of a constit-
utional right and mental distress. The reference of one of the
Defendants to the impropriety of Plaintiff claiming emotional
distress without alleging extreme and outrageous conduct, etc.
(HELMS, p. 4-5) is based upon a misreading of the pleadings, and
a mistaken understanding of the law in California. Plaintiff is
not claiming a tort where the only damage is emotional distress.
Rather, she has pleaded an intentional violation of her constitu-
tional rights. In.that instance, exemplary damages are. appropriat
Silberg v. California Life Ins. Co., 11 Cal. 3d 452, 462 (1974)
(exemplary damage where defendant acted with a "conscious disregar
of the plaintiff's rights"); Paton v. LaPrade, supra.
Plaintiff asks the Court to keep in mind that Defendants are
alleged to have opened and photographed her mail, and to have
extracted her name to add it to CIA data banks. The information
contained in the Rockefeller Report, as well as in news articles
(see Affidavit of Counsel and Exhibits) shows the unquestioned
illegality of the intercept, and the complicity of each Defendant.
If such mail intercept programs are a wrong without a remedy
as Defendants assert -- the foundations of the Republic will not
?
crumble. However, a small crack will be driven into those
foundations; a collection of such cracks may be enough to pro-
foundly change the nature of our society.
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Several Defendants contend that neither postal statutes and
regulations, or appropriate criminal statutes create a civil
cause of action in this case. The problem is an interesting one
and must be considered in the light of the recent Supreme Court
case of Cort v. Ash, U.S. , 95 S. Ct. 2080 (1975),
which deals directly with the issue, providing guidelines for .
future determinations. Since each of the separate counts of the
Third Amended Complaint rests on different grounds, the implied
right of action question is discussed separately for the three
counts.
COUNT ONE, alleging the opening of Plaintiff's mail, does
not need to look to any statute or regulation for an implied
right of action. The opening of mail is proscribed by both the
First Amendment, Paton v. LaPrade, supra, and the Fourth
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Amendment, Van Leeuwen. supra. Both Paton and Bivens, supra, hold
that persons whose First and Fourth Amendment rights have been
violated may seek civil relief from those who have caused the
violations.
COUNT TWO, the "mail cover" count, described conduct which
is proscribed by 39 C.F.R. 233.2, and its predecessor regulations.
A copy of this mail cover regulation is attached hereto as
Appendix D along with part of 49 F.R., p. 11579, stating that .
233.2 (a 1975 regulation) substantially republishes procedures
and safeguards already in effect in prior Postal Service regulati n$
These regulations have the force of law, Rodway, supra, and
were grossly violated by the mail intercept program. See
Rockefeller Report, Chapter 9. Whether or not mail covers intrud
upon the Fourth Amendment rights of the sender and the recipient,
the First Amendment rights of Plaintiff have been violated by
the alleged program. The cases cited (HELM, p. 4), condoning
9a. Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
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mail covers in criminal cases, provide small comfort for
Defendants, since they involve legitimate mail: covers ca-tried:
out according to Postal Service requlations, against known or
suspected criminals.
COUNT THREE charges delay of Plaintiff's mail. The Supreme
Court in Van Leeuwan has held that "in theory"
. . detention of mail could at some
point become an unreasonable seizure of
'papers' or 'effects' within the meaning
of the Fourth Amendment." 397 U.S. at 252
In Van Leeuwan, detention for one and one-half hours was rule
not to be excessive. We do not know from the facts provided by
Defendants what the magnitude of delay was.. If the detention was
prolonged enough to warrant the label of a "seizure", the
Fourth Amendment would allow a civil cause of action under Bivens.
If not, 18 U.S.C. S 1701 and 1703 creates a civil cause of action.
The Defendants rely upon two cases to support a contrary position.
One of thew is Paton v. LaPrade, 382 F. Supp. 1118 (D. N.J. 1974).
However, on appeal in that case, the Third Circuit, reversing
this decision, specifically held open the question of whether or,
not defendant had aniMplied right of action under 18 U.S.C. 1702.
Paton, supra, 524 F. 2d at 870, n. 10.
The other case cited by Defendants, United States ex rei.
Pope v. Hendricks, 326 F. Supp. 699 (E.D. Penn. 1971) )does hold
that there is no implied cause of action for a violation of S 1702.
The holding of this District Court in Pennsylvania is not binding
upon this Court and the opinionshould be read in its entirety:
that Court also held that a Plaintiff who is placed in solitary
confinement with a bright lightbulb burning 24 hours a day without
adequate food or heat was not the recipient of cruel or unusual
punishment, and furthermore that his jailers had the right to
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withhold legal mail for him for six months. The entire opinion
is discredited by such findings.
The Supreme Court in the past has not hesitated to find a
civil cause of action created by implication by a criminal
statute. Wyandotte Transp. Co. v. United States, 389 U.S. 191
(1967). See also, J. I. Case v. Borak, 377 U.S. 426 (1964).
Space precludes a detailed application of Cort, supra, to the
facts at bar. It is suggested that if the Court takes the four
factors set forth in Cort and applies them to the facts here,
it will readily be seen that 18 U.S.C. ? 1701 and 1703 do
imply a civil remedy for delay of the mail.
The general principle set forth in Bivens, supra, by the.
United States Supr-Bme Court, should be honored:
"And 'where federally protected rights
have been invaded, it has been the rule
from the beginning that courts will be
alert to adjust their remedies so as to
grant the necessary relief'". 403...U.&.,..
at 392.
The congressional intent in enacting Section 1701-1703
?
has been described by the Ninth Circuit (discussing Section 1702)
in McCowen v. United States, 376 F. 2d 122 (9th Cir. 1967), saying
that it was the
"Congressional intent to extend federal .
protection over mail matter from the time
it enters the mails until it reaches the
addressee or his authorized agent."
b. Defendant UNITED STATES.
Plaintiff is entitled to injunctive relief against the
United States-and agents of the United States, insofar as Plaintif
has a legitimate ground for believing that mail cover operations
may commence again. The allegations of the "chilling effect" of
the mail cover program were included in the Third Amended Complain
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not, as some Defendants apparently believe, in order to create
a cuase of action for damages, but rather as a predicate for
injunctive relief.
The United States is also a proper party to this law suit,
insofar as Defendants may have been acting within their "official
capacity" while acting beyond their actual authority. See
Hatcheley v. United States, 351 U.S. 173, 181 (1956). The
possibility that the actions of Defendants could fall into this
grey zone is increased by the apparent belief of the individual
Defendants that their actions, illegal or not, were done in "the
best interests" of the country. Defendant MITCHELL, for one,
continues to insist in his Motion To Dismiss The Third Amended
Complaint that
everything he did in connection with the mail
intercept program was within the scope of his authority or in
the discharge of his official duty (Mitchell, p. 12-13).
Additionally, the UNITED STATES is an appropriate defendant
here because Presidental ratification and approval can be
inferred for the mail intercept. See Exhibits accompanying
Affidavit of Counsel, attached hereto.
The involvement of high-level Government officials, up to
and including the President, also raises questions about the
propriety of interposing sovereign immunity as a bar to Plaintiff'
action. Scholars apparently agree that the notion that "the
King can do no wrong"
u? . . meant that the King must not, was
not allowed, not entitled to do wrong . . ."
Erlich, No. XII: Proceedings Against The
Crown (1216-1377) at 74, in 6 OXFORD STUDIES
IN SOCIAL AND LEGAL HISTORY (Vinogradoff ed.
1921).
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If we are to have a nation under law, remedies must be
fashioned by the courts to insure that the Government, as well
as the governed, is subject to those laws.
A cause of action against the United States is also
appropriate under the Administrate Procedure Act. Arizona State
Department of Pub. Welfare, the Department of H.E.W., 449 F. 2d
456, 464 (9th Cir. 1971) has been cited by MITCHELL, p. 3, as
standing for the proposition that the APA does not confer
independent jurisdiction on the Federal courts. A reading of the
case reveals that it actually holds that 5 U.S.C. S 703 does not
confer upon the Court of Appeals any additional jurisdiction not
expressly authorized by a separate statutory grant of power. The
Ninth Circuit states in Rothman v. Hospital Service of Southern
California, 510 F. 2d 956 (9th Cir. 1975), that
"We have held that the A.P.A. provides
jurisdiction for review of agency action
in District Court unless such jurisdiction
is otherwise barred." (Emphasis supplied).
510 F.2d at 958.
Where the head of an agency directs that his agency carry
out actions which aggrieve a citizen, that citizen can rely upon
the APA as creating jurisdiCtion for-injunctive relief against
the United State and offending agencies.
Finally, the United States is a proper defendant in this
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case under 28 U.S.C. ? 1346(a)(2). The Tucker Act "bites" for
delay of the mail; if it is determined that COUNTS ONE and TWO of
the Third Amended Complaint state a cause of action whose value is
less than $10,000, 28 U.S.C. ? 1346(a)(2) would also take hold
there. State of Washington v. Udall, 417 F. 2d 1310, 1321
(9th Cir. 1969).
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The question of whether or not any cause of action exists,
and whether, if it does, the Federal courts have subject
matter jurisdiction over it, are intertwined closely and are
being treated together in this Memorandum.
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The mail intercept program was a violation of constitutional
and statutorily protected rights, and Defendants' efforts to
characterize it as "sounding in tort", ignore the facts. Section
1346(a)(2) creates jurisdiction in the District Courts of "Any
other civil action or claim against the United States, not
exceeding $10,000.00 in amount, founded either upon the
Constitution or any Act of Congress, or any regulation of an
executive department, . . ? ft (emphasis supplied).
Plaintiff seeks damages for the violation of constitutional
and statutory rights, as well as punitive damages for the
intentional nature of such violations. She has nver claimed tort
damages. As discussed in Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388, 392-93, violations
of constitutional rights are often the result of conduct which
would not, if engaged in by private persons, be condemned by
state court (i.e., a tort).
The mail intercept program was a violation of the First
Amendment rights of Plaintiff, Paton v. LaPrade, 524 F. 2d 862
(3d Cir. 1975), and Fourth Amendment rights, United States v.
Van Leeuwen, 397 U.S. 249 (1970). The statutes and regulations
violated by Defendants' tampering with Plaintiff's mail are set
forth and discussed in greater detail above.
B. Defendants' Joint Venture Carried Out Acts In
California, And Availed Itself Of The Benefits of California
Services and Laws; Venue Is Properly Laid In The Northern
District of California.
The following discussion will address itself primarily to
venue questions. The same considerations which argue for local
venue also provide grounds for finding personal jurisdiction
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over each individual Defendant.
1. Defendants' joint venture was doing business in
the Northern District of California.
Defendants' responses evince some outrage about Plaintiff's
inclusion of the Far East mail intercept program in her
description of Defendants' conspiracy. Plaintiff is not shifting
the emphasis of her original conspiracy allegations nor is this
a last-ditch effort to create venue where none existed before.
Plaintiff continues to believe that the actions of Defendant-
in carrying out the Soviet mail cover program warrant finding
local venue. However, as a reading of the Rockefeller Report,
Chapter 9 will show, the Far East intercept program was part and
parcel of a general effort to fight the Communist monolith.
The Court could well determine that the two intercepts were .
closely related, were covered by the same umbrella, furthered
the same objectives, and therefore agents of the Defendants were
directly present in San Francisco carrying out the conspiracy
alleged in the Third Amended Complaint.
Whatever the determination on this point, Plaintiff continues
to place her primary stress on the fact that, with regard to
Soviet mail only, Defendants were involved in a joint venture
which did business in California. This business had relation to
their scheme to violate the Plaintiff's rights and provides cause
for holding Defendants locally to answer for their actions.
Some of the Defendants have elsewhere characterized them-
selves as being no different than mail carriers, mere low-level
employees of the Government. Plaintiff believes that this is a
wishful characterization. A reading of the Rockefeller Report
shows that, on the contrary, a group of officials at the highest
levels of Government conspired together, set up, and operated over
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a space of twenty years, a comprehensive mail-intercept program
of vast scope. The schemersbehind the program were part of a
joint venture, and venue determinations should be made as they
would be for any joint venture whose operations reach into this
forum.
The Defendants in this action, concerting together, were
present in the jurisdiction, availed themselves of the benefits
of the forum and injured Plaintiff locally through their actions
For venue purposes, a co-conspiracy is certainly an unincorporate
??????
association of individuals sharing a common objective. As such,
they should be held to the venue provisions of 28 U.S.C. ? 1391(c)
permitting the suit of any corporation in any judicial district
in which the corporation was doing business at the time the cause
of action arose. Denver, Rio Grande & Western R. Co. v. Bthd. of
Railroad Trainmen, 387 U.S. 556 (1967)(unincorporated association
sued as an entity will be treated like a corporation for venue,
and may be sued wherever doing business); Penrod Driving Co. v.
Johnson, 414 F. 2d 1217 (5th Cir. 1969)(partnership like a
corporation for venue); Farmers Elevator Mut. Ins. Co. v. Carl J.
Austad & Sons, Inc., 3,43_F. 2d 7 (4th Cir. 1965)("doing business"
at the time the cause of action arose).
One Defendant has cited Sheard v. Superior Court 40 Cal.
App. 3d 207 (1974) as holding that an individual cannot be
personally held to an answer in a jurisdiction where his
corporation is doing business. When read completely, Sheard
establishes that, where a corporation is the alter ego of
individual defendants, those defendants can be subject to the
jurisdiction of a forum wherein the corporation acted for the
individuals.
The individual Defendants in this action were, through their
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joint venture, "doing business" in the State of California
irrespective of ?the Far East mail intercept. One named, and one
or more unnamed Postmasters General were parties to the overall
conspiracy. All of the directing members of the conspiracy
understood that they would be able to act through mail carriers
and take advatage of those mail carriers in the State of
Califorinia. Importantly, the ways in which Defendants were
"doing business" in the forum directly contributed to the
success of the objectives of their conspiracy.
Putting aside the question of the conspiracy "doing
business" in the State of California, we turn to an analysis of
modern views of the law of venue. A prime concern of the court
in determining whether or not venue lies lozally is the interest
of the forum in protecting the rights of its residents. The
?
recent California Supreme Court case of Cornelison v. Chaney,
16 Cal. 3d 143 (1976) elucidates the current perimeters of that
doctrine. In Cornelison (extract attached hereto as Appendix E)
the California Supreme Court found jurisdiction (and venue, under
the rubic "convenience of the parties") over a defendant trucker,
for an accident occurring on the highways outside California.
Because defendant was involved in a multi-state trucking
business, because a risk of defendant's business was causing
injury to persons in distant forums, and because he had been
coming into the State of California for many years as a trucker,
California found that it had a sufficient interest in providing
a forum for its residents to justify subjecting defendant to the
jurisdiction of the California courts.
This Court has a legitimate interest in protecting forum
residents from the acts of distant Government officials,
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deliberately opening, photographing or tampering with their mail.
The multi-state nature of the conspiracy alleged by Plaintiff
contemplated injury to defendants in distant forums.
Likewise, Defendants availed themselves of the benefits of
California laws and roads, providing the necessary contacts for:
allowing the forum resident to vindicate his interests locally.
Professor Moore has made a persuasive case for applying a "minimum
'contact" approach to ? 1391 venue questions, rather than the
"most significant contacts" approach urged by Defendants and
applied by some district courts in contract cases. 1 MOORE'S
FEDERAL PRACTICE 1 0.142 [5.-2].
Plaintiff, in her previous Memorandum, has pointed out that
her action is transitory in nature. The damage done to her has
both violated her personal "penumbra" of privacy, and through an
intentional violation of her civil rights, created emotional
11/
distress. Both of these violations "arise" in the Northern
District of California. Cf., Katz v. United States, 389 U.S.
347 (1967). Her cause of action is not unlike a products
liability case, in which negligent manufacture in forum A causes
eventual injury to a person in forum B. Under the law of the
Ninth Circuit, the action may then properly be brought in
forum B. Duple Motor Bodies, Ltd. v. Hollingworth, 417 F. 2d
231 (9th Cir. 1969).
Plaintiff previously put forward the suggestion that private
mail was a "conduit" which began at the place where the sender
puts the letter into the mail and which does not end until
the letter is finally received by the addressee. This interpre-
11. Plaintiff does not claim that the emotional distress pleaded
in her Third Amended Complaint is disabling, or of major
proportion.
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?
tation is supported by the Ninth Circuit in McCowen, supra.
However, the "conduit" claim, with its accompanying venue theory,
(that if the stream is broken in another state a plaintiff is
harmed at the commencement of the conduit) was the subject of a
forceful, confident assault by one of defense counsel at the last]
court hearing. Statements were made at that time that the condui
model was faulty, because it is established in wire-tap cases,
under 18 U.S.C. S 2511 (forbidding unauthorized wiretaps) and
under obstruction of the mail cases, that venue could only be-lai
in the jurisdiction where the tap was applied to the phone line 0:
where a letter was taken out of the flow of mail. Plaintiff has
been able to discover no cases on point. Nor have any cases been
cited by Defendants, either before the assertions during oral
argument or since. Such cases should be brought to the attention
of the Court.
Although not giving primary reliance to the conduit theory,
Plaintiff continues to suggest to the Court that it provides a
useful conceptual construct in determining the fairness of hearing
Plaintiff's action locally.
In criminal cases, the Ninth Circuit has gone so far as to
hold that venue in a conspiracy case is proper in districts
which conspirators have overflown in order to obtain contraband.
United States v. Williams, F. 2d (9th Cir. Jan. 26, 1976)
No such generous application of the venue laws to this civil con-
spiracy are necessary to find local venue (and jurisdiction) for
all defendants. Where the civil rights sought to be protected
are of a substantial nature, where Plaintiff is a resident of the
forum, where Defendants, conspiring together, have acted in this
forum to set in train the events which injured Plaintiff, and
where constitutional rights attaching locally have been violated,
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1 this Court should not interpret jurisdiction and venue provisions
2. in an illiberal spirit.
31
4 MISCELLANEOUS QUESTIONS
51 Plaintiff does not and has never relied upon the "Freedom
6! of Information Act" as a basis for her cause of action. Defendan
711 DAY's erroneous assumption that she has done so (DAY, p.7) is
Si understandable, since 5 U.S.C. S 552 is the Freedom of Informatio
91 Act. Plaintiff has cited 5 U.S.C. S 551, et seq., which is known
10,
11 '
12
_13
14
15
16
171
18!
19 !I
20
as the Administrative Procedure Act (see popular name table,
U.S.C.A.) as providing jurisdiction against the UNITED STATES
and Defendant BUSH.
Defendant MITCHELL continues to flail the dead horse of the
Federal Tort Claims Act (MITCHELL, p. 6-7). Plaintiff has never
relied upon the Federal Tort Claims Act, and has specifically
disavowed any such reliance upon FTCA at the last hearing in
this matter. She again disclaims any efforts to establish a
cause of action under the Federal Tort Claims Act.
The Court, during the last hearing on this matter, raised
the question of whether or not 28 U.S.C. S 1391(e) required all
21 Defendants to be officers or employees of the United States
221 before Section 1391(e) venue provisions could be applied to any
23 United States employees. The weight of authority holds that
24, Section 1391(e) venue provisions can apply to Government
25 Defendants without the preclusion of joining other defendants
26 who are otherwise subject to process. Eletschkav. Driver,
27: 411 F. 2d 436 (2d Cir. 1969); 1 MOORE'S FEDERAL PRACTICE, 1 0.142
28! [7], and cases cited therein.
29
30i
31i
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CONCLUSION
The Defendants in this case have told the Court that;
(1) We never did anything;
(2) If we did anything, so what'?
(3) If we did anything and it matters, we were never
here in California.
Plaintiff asks the Court to reject this line_of reasoning
on the basis of the above analysis and Plaintiff's previous
Response to Motions to Dismiss the Second Amended Complaint.
The motions to dismiss or for summary judgment should be denied,
and Plaintiff should be allowed to commence discovery in this
action.
Dated: March 9, 1976
KIPPERMAN, SHAWN & KEKER "
WILLIAM A. BROCKETT
By (110#10C1(
William A. Brockett
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PYR
?.?
204 USE AND ABUSB OP STATISTICS
in two? Probability theory is concerned with chance Or with the
unknown factors which produce the results. Once events have
taken place and the outcomes are known, the mathematical
probability in each caso is 1. The probabilities aro therefore: .
Head on first throw: p 1. ,
second ? . p = 1 ?
third ? ? . p =
and the probability of completing a run of three consecutive heads
is therefore equal to 1 x 1 x 4 = 4. ? ?
? Having actually thrown the first two heads, we have eliminated
the adverse chance factors in those two throws. The probability
of complete success improves with each successful stage com-
pleted just as a tennis player's chances of winning a tournament
improve with each match won, assuming unkindly that players
are so well matched that the results depend upon chance.
The multiplication law can give rise to results which at first
sight are almost unbelievable. Suppose that there arc thirty people
at a meeting. What is the probability that two Of these will have
the same birthday (that is, date of day and month but not neces-
sarily of year)? There are 365 days in an Ordinary year and there.
arc therefore 365 different possible birth-dates. What would you
cxpcct the chances of a duplication to be? One in twelve perhaps
or, say, one in tcn? ?
The easiest way to calculate this ratio is by first calculating the
probability of total failure; that is, the probability that there is
not a duplication of birth-rates. The first man has 365 'possible'
dates. The second man therefore has 364 chances out of 365 of
not duplicating the first man's date. Similarly, the third man has
363 chances of not duplicating either of the dates of the first two
men. The chances of failure on the part of the remaining twenty-
seven men reduce by 1 in 365 at each remove so that the thirtieth
man has 336 chances in 365 of not duplicating .any of the dates
of the preceding twenty-nine men. The total probability of failure
therefore is the product of the twenty-nine terms:
364 363 362 336
PROBABILITY 205
and this is approximately equivalent to 0.3. This, however, is the
probability of failure. The probability of success or failure is 1,
since one of the results must be achieved, and the probability of
success is therefore
1?O3=07
There are therefore approximately seven chances out of ten that
there will be a birth-date duplication. This is quite out of character
with what might have been considered probable without the
assistance of mathematics and it serves to demonstrate that
probabilities should never be assessed intuitively unless the in-
tuition is really a manifestation of experience.
In all the foregoing problems we have assigned finite limits
to the calculations by stating-the number of events to be con-
sidered. That is, what results may be obtained in three tosses of a
coin or in two selections of coloured balls or amongst thirty
people. All these are finite classes. A famous problem ? the
St Petersburg Paradox ? will illustrate the kind of difficulty
which may be encountered where there are no finite limits. We
return to our coin-tossing with the assistance of Mr A and a
Banker. Mr A tosses a coin and, if a head appears, the Banker
pays him ?1 and the experiment is over. If, however, Mr A does
not get a head on the first throw he continues to throw until he
does. With every throw his possible prize is doubled. Thus if he
tosses a head on the second throw, he will win ?2; on the third
throw he will win ?4 and so on. The problem Is to assess what
amount Mr A should pay the Banker for the privilege of playing,
so that the game shall be a fair one, neither Mr A nor the Banker
having an unfair advantage no matter how long the game con-
tinues.
The probability of a head on the first toss is 4. The prize at
this level is Ll and the value of Mr A's expectation is therefore
10 shillings. Mr A will win on the second toss only if his first
throw was a tail and his second throw was a head, and the
probability of this combination of results is x 4. The prize at
this level is ?2 and the value of Mr A's expectation is therefore
?2 x which is again equal to 10 shillings. Similarly the value of
his expectation Is 10 shillings at every toss and he must therefore
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Approvaor Release 2004/12/20 : CIA-RDP79.467A000300130009-6
COMPtirP0/+/ Or 7446/^)/L oPtiviNt, 1?Ro6-9611,ir7
?00-16 (civance of Any On& lethr
. _ ,1 (447 ?At I t will not ott.ie
? 0-1?, 't 21
Ccriv-fy
069924 X
0 ? 9924
0 ? 98485776'
0.98485775 =
0 ? 977372841
0 ? 977372841 =
0 ? 96994480.7
0.969944807 =
0?962573226
0?962573226
0 ? 955257669
0 ? 955257669 =
0 ? 94799771
0.94799771 =
0.940792927
0 ? 940792927 =
0 ? 9336429
0.9335429 =
? 926547213
0 ? 926547313 =
0 ? 919505454
0 ? 919505454 =
0 ? 912517212
0?912517212 =-
0? 905582081
0.905582081 =
0 ? 898699657
0.898699657 =
0 ? 891869539
nu/01(r of
kthrs("A'')
(plgA/cP? Wrs.r" otiE tf-7-rr Pukc fer
L-Ur L,FfreiZc 1? .693q =.306C> z 30.1
1.-17-ERS - .4? ol zr, 5 3
0 ? 891869539 =-
6 .88509133
0.88509133 =
?878364635 -
0.? 878364635 =
0 ? 871689063
0.?871689063.
0?865064226
0.86 5064226
b ? 8 58 4897 37
0?858489737
0 ? 851965214.
?851965214
01,84549027.8
0.845490278 =.
0'839064551
b ? 839064551 =
0 ? 83268766 ?
0 ?
0 ? 83268766 x.
0 ? 83268766 =
Lik Lfrrr2S- awice 0.693368739
Odt "OLL "JED Tf
0 ? *.
0 ? 693368739 x
? 693368739 =
Ltr7fRS-CWA/C5 AlC) 0 ? 480760208
wit i?i OfrAirD /7
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4,0
J'a'S
234 USE AND ADUSI3 OF STATISTICS
or once in four hundred times. One single sample may not there-
fore tell us very much, unless it is sufficiently large, but as statis-
tical surveys become more frequent and as more knowledge is
gained from more and more samples of the same population, so
the better able are we to apply the fruits of experience to the
assessment of the variables involved.
The probabilities so far discussed have been in connexion with
sample means. Sampling, however, is very often carried out to
ascertain what proportion of a population possesses specified
characteristics. For each characteristic, each member of tho
population must either possess it or not, provided it is a clear-cut
concept so that there is no confusion caused by marginal differ-
ences. Individuals may then be categorized in definite classifica-
tions of the 'haves' and 'have-riots', and calculations may be
made to assess the probability that an individual possesses the
characteristic. Tho standard error for a proportion becomes
? i.e. = Ala
where p represents the probability that an individual possesses
the characteristic and q represents the probability that he does
not. This is another way of saying thatp represents the estimated
proportion of individuals who possess the characteristic, and q
represents the proportion of individuals who do not. Thus if the
estimated proportion of individuals possessing the characteristic
is 25%, then the standard error (expressed as a percentage) is
41 . 25 X 75
If the standard error is 2% then
2 = j25 x 75
n
whence it is approximately equivalent to 469. A sample size of
469 would therefore be necessary in order that the desired standard
error of 2% might be derived from the sample, and we could then
be 95% confident that the parametric proportion would lie
Approved
I
SAMPLING 235
within the limits of (25 ? 4)%, or between 21 and 29%. Similarly,
n gives the sample size which, for any estimated population pro-
portion, will give the desired degree of accuracy as measured by
the size of the standard error.
Here again it is mainly the desired degree of accuracy required
rather than the size of the population which decides the sample
size. Nevertheless the relationship between sample size and
population size does have some effect, but this is negligible unless
the sample represents a large proportion of the population. It is in
fact generally ignored in practice unless the sample size represents
at least one-tenth of the total population, and is also often
ignored unless it represents one-fifth of the population. At this
latter level the standard error, unless adjusted, would be over-
stated by about 11%.1 A sample size of 1,000, however, will give
a standard error value of sufficient accuracy with regard to a
population of 50,000, and a similarly sized sample would give an
equally accurate result for a population of 100,000.
Subject to due consideration being given to the formula for
the generation of optimum sample sizes, the actual size of a
sample will very often depend upon the further consideration of
hard cash. Surveys are expensive exercises and it is necessary to
balance the estimated value of the results desired against the
estimated cost of obtaining those results. If only a litt ited sampling
survey is possible within a limited cash structure and this will not
give sufficiently accurate results, then either the amount of cash
to be made available for the project must be increased or other-
wise the project should be abandoned. To conduct a survey which
is known from the start to be incapable of giving a desired accuracy
merely wastes time and labour which might have been more
profitably employed.
The expense of surveys makes it desirable to use tlIC same
sample for a number of different though possibly related Charac-
teristics. Odhams Press, for instance, carry out a survey of the
market for domestic appliances and furniture. They ask each
respondent not only whether she has a gas cooker but also
whether she has an electric kettle; these are related yet quite
I. Seo Wallis and Roberts, Statistics ? A New Approach, Methuen,
p.369.
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'ir
4,0
J'a'S
234 USE AND ADUSI3 OF STATISTICS
or once in four hundred times. One single sample may not there-
fore tell us very much, unless it is sufficiently large, but as statis-
tical surveys become more frequent and as more knowledge is
gained from more and more samples of the same population, so
the better able are we to apply the fruits of experience to the
assessment of the variables involved.
The probabilities so far discussed have been in connexion with
sample means. Sampling, however, is very often carried out to
ascertain what proportion of a population possesses specified
characteristics. For each characteristic, each member of tho
population must either possess it or not, provided it is a clear-cut
concept so that there is no confusion caused by marginal differ-
ences. Individuals may then be categorized in definite classifica-
tions of the 'haves' and 'have-riots', and calculations may be
made to assess the probability that an individual possesses the
characteristic. Tho standard error for a proportion becomes
? i.e. = Ala
where p represents the probability that an individual possesses
the characteristic and q represents the probability that he does
not. This is another way of saying thatp represents the estimated
proportion of individuals who possess the characteristic, and q
represents the proportion of individuals who do not. Thus if the
estimated proportion of individuals possessing the characteristic
is 25%, then the standard error (expressed as a percentage) is
41 . 25 X 75
If the standard error is 2% then
2 = j25 x 75
n
whence it is approximately equivalent to 469. A sample size of
469 would therefore be necessary in order that the desired standard
error of 2% might be derived from the sample, and we could then
be 95% confident that the parametric proportion would lie
Approved
I
SAMPLING 235
within the limits of (25 ? 4)%, or between 21 and 29%. Similarly,
n gives the sample size which, for any estimated population pro-
portion, will give the desired degree of accuracy as measured by
the size of the standard error.
Here again it is mainly the desired degree of accuracy required
rather than the size of the population which decides the sample
size. Nevertheless the relationship between sample size and
population size does have some effect, but this is negligible unless
the sample represents a large proportion of the population. It is in
fact generally ignored in practice unless the sample size represents
at least one-tenth of the total population, and is also often
ignored unless it represents one-fifth of the population. At this
latter level the standard error, unless adjusted, would be over-
stated by about 11%.1 A sample size of 1,000, however, will give
a standard error value of sufficient accuracy with regard to a
population of 50,000, and a similarly sized sample would give an
equally accurate result for a population of 100,000.
Subject to due consideration being given to the formula for
the generation of optimum sample sizes, the actual size of a
sample will very often depend upon the further consideration of
hard cash. Surveys are expensive exercises and it is necessary to
balance the estimated value of the results desired against the
estimated cost of obtaining those results. If only a litt ited sampling
survey is possible within a limited cash structure and this will not
give sufficiently accurate results, then either the amount of cash
to be made available for the project must be increased or other-
wise the project should be abandoned. To conduct a survey which
is known from the start to be incapable of giving a desired accuracy
merely wastes time and labour which might have been more
profitably employed.
The expense of surveys makes it desirable to use tlIC same
sample for a number of different though possibly related Charac-
teristics. Odhams Press, for instance, carry out a survey of the
market for domestic appliances and furniture. They ask each
respondent not only whether she has a gas cooker but also
whether she has an electric kettle; these are related yet quite
I. Seo Wallis and Roberts, Statistics ? A New Approach, Methuen,
p.369.
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'ir
?233.1 Title 39?Postal
the ' possible location of the person
wanted roust be telephoned or tele-
graphed immediately to the postal in-
spector in charge. Remove circulars Im-
mediately when notified.
(b) Rewards. (1) Rewards will be paid
In the amounts and under the conditions
? stated in sign 32. Notice of Reward, for
the arrest, and conviction of persons ac-
cused of the following postal offenses:
? (i) Robbery or attempted robbery.
(ii) Mailing bombs or poison.
(iii) Post office burglary.
(iv) Stealing or unlawful possession
of mail or money or other property of
the United States.
(2) The postmaster or a designated
employee should personally present re-
ward signs to station agents, railroad
detectives, police officers, sheriffs and
their deputies, if practicable, and en-
courage their cooperation in protecting
mail and Government property.
The text of Sign 32, referred to in
pkaph(b) (1) of this section, reads as
:
follows:
The United States Postal Service will pay
a reward for information and services lead-
hag to the arrest and conviction of any person
for the following offenses:
ROBBERY
1. Not to exceed $3,000 for robbery or at-
tempted robbery of any custodian of any
mall, or money or other property of the
United States under the control and jurisdic-
tion of the U.S. Postal Service, if such
custodian is wounded, or his life jeopardized
with a dangerous weapon; but not to exceed
$1,500 if the custodian is not wounded, or
his life not jeopardized with a dangelous
weapon.
MAILING OF BOMBS Ott POISON
2. Not to exceed $3,000 for mailing or
causing to be mailed any poison, bomb, de-
vice, or composition, with tho intent to kill
or arm another, or injure the mails or other
ty.
ot to exceed $300 for mailing or causing
to be mailed any poison, bomb, device, or
composition which may kill or harm another,
or injure the malls or other property.
Bonet/off or POST OFFICE
4. Not to exceed $300 for breaking into or
attempting to break into a post office, station,
branch, or building used wholly or partially
as a post oillee with iiitent to commit a
larceny or other der recintion In that part
used as a post office.
IIIEFT OF MAIL
S. Nut to exceed $300 for the theft or at-
J.ertipien theft of any mall, or the ('omenta
thereof, or the theft of money or any other
Service
. property of the United StateAplidlIV(id Fo
custody and Control of the U.S. Postal Service,
from any custodian, postal vehicle, railroad
depot, airport, or other transfer point, post
office or station or receptacle or depository
established, approved, or designated by the
Postmaster General for the receipt of mall.
EMBEZZLEMENT OF MAIL
' 8. Not to exceed $300 for embezzlelnent
of mall or the contents thereof by a nine
carrier on a mail messenger or star route.
Orrzsrses 'INvoLviNo Mom"' ORDERS
7. Not to exceed $300 fer the altering, forg-
ing, uttering, or passing of postal money
orders stolen from a post office, station,
branch, or postal custody. '
Gsleeast. Paovisivris
8. The U.S. Postal Service will also pay
rewards as stated above for information and
services leading to the arrest and conviction
of any person:
(a) as an accessory to any of the above
crimes;
(b) for receiving or having unlawful pos-
session of any mail, money, or property
secured through the above crimes;
(c) for conspiracy to commit any of the
above crimes.
9. When a person has been adjudged a
juvenile delinquent for having committed
any of the above crimes, the same reward
may be paid as though such person had
been convicted of such crime.
10. The term "custodian" as used herein
Includes any person having lawful charge,
control, or custody of any mall matter, or
any money or other property of the United
States under the control and jurisdiction
of the U.S. Postal Service.
11. A reward may be paid for the convic-
tion of a person for an offense listed above.
even though arrested for committing an- ?
.other offense.
12. When an offender Is killed while com-
mitting a crime listed above or in resisting
lawful arrest, the same reward may be paid
to a person rendering information and serv-
ices as though the offender had been ar-
rested and brought to conviction.
13. The amount of the reward to be paid
will be based on the importance of services
rendered, character of the offender, slake and
hazards involved, time spent, and expenses
Incurred. Maximum rewards will be paid only
wheo services were of the maximum value.
14. Tho Postal Service will reject a claim
where there has been collusion, or improper
methods have been used to effect an arreat
or to secure a conviction. It has the right
to allow only one re sard where several per-
sons were convicted of the Same offense, or
one person was convicted of several offenses.
15. A wrAten claim must be submitted
I.,, the Postal Inspector in Charge of tee
Division in which the crime Was conunitted
within 6 months from the date of convic-
Chapter 1?tifolttplOtaftes Postal Service ? 233.2
A?PAR(WaRigi PfingrgrKMPM4674.9)0(iagQiNoPLUI Inspector, or his
designee, may order mail covers under ? ?
the following circumstances:
(D When he has reason to believe the
subject or subjects of the mail cover are
engaged in any activity violative of any f-*--s\
postal statute. ?c?1
(ii) When. Written request Is received
from any law enforcement agency. 4--
wherein the requesting authority stipu-
lates and specifies the reasonable
grounds that exist which demonstrate r
the mail cover is necessary to (A) pro-
tect the national security, (B) locate a . >?
fugitive, or (C) obtain information re- '"-
garding the commission or attempted
commission of a crime, 1-ta
(iii) Where time is of the essence, the
Chief Postal Inspector, or his designee,
may act upon an oral request to be con-